Chapter IV: Preface: v (3)

[69] See on the one hand Maurer, K. U. i. 410, on the other a
learned essay by Jastrow, Zur strafrechtlichen Stellung der
Sklaven, in Gierke's Untersuchungen zur Deutsche Geschichte,
vol. i. Maurer holds that the Anglo-Saxon slave is in the main
a chattel, that _e.g._ the master must answer for the delicts
of his slave in the same way that the owner answers for damage
done by his beasts, and that this liability can be clearly
marked off from the duty of the lord of free retainers who is
merely bound to produce them in court. Jastrow, on the
contrary, thinks that even at a quite early time the
Anglo-Saxon slave is treated as a person by criminal law; he
has a wergild; he can be fined; his trespasses are never
compared to the trespasses of beasts; the lord's duty, if one
of his men is charged with crime, is much the same whether that
man be free or bond. Any theory involves an explanation of
several passages that are obscure and perhaps corrupt.

[70] Cnut, II. 45-6.

[71] Schmid, Appendix V. (Of Ranks); Pseudoleges Canuti, 60 (Schmid,
p. 431).

[72] Leg. Hen. 76 § 7: 'Differentia tamen weregildi multa est in
Cantia villanorum et baronum.'

[73] Leg. Hen. 76 § 2.

[74] Leg. Hen. 76 § 3.

[75] Ibid. 76 § 3.

[76] Ibid. 77; see Hist. Eng. Law, i. 405.

[77] Ibid. 78 § 2. The difficult _strublum_ we leave untouched.

[78] Ibid. 78 § 2 from Cnut, II. 20. On this see Jastrow's comment,
op. cit. p. 80.

[79] Ibid. 70 § 5.

[80] Ibid. 70 § 1; 76 § 4.

[81] Ibid. 69 § 2.

[82] Ibid. 70 § 4: 'Si liber servum occidat similiter reddat
parentibus 40 den. et duas mufflas et unum pullum [_al._
billum] mutilatum.' The _mufflae_ are thick gloves. Compare
Ancient Laws of Wales, i. 239, 511; the bondman has no
_galanas_ (wergild) but if injured he receives a _saraad_; 'the
saraad of a bondman is twelve pence, six for a coat for him,
three for trousers, one for buskins, one for a hook and one for
a rope, and if he be a woodman let the hook-penny be for an
axe.' If we read _billum_ instead of _pullum_ the English rule
may remind us of the Welsh. His hedger's gloves and bill-hook
are the arms appropriate to the serf, 'servitutis arma'; cf.
Leg. Hen. 78 § 2. As to the _man-bót_ see Liebermann, Leg.
Edwardi, p. 71.

[83] In Leg. Hen. 81 § 3 (a passage which seems to show that by his
master's favour even the _servus_ may sometimes sue for a wrong
done to him) we have this sum:--_villanus_ : _cothsetus_ :
_servus_ :: 30 : 15 : 6.

[84] Ibid. 75 § 4: 'suum peccatum est et dampnum.' See also 70 § 10,
an exceedingly obscure passage.

[85] Ibid. 59 § 23.

[86] Ibid. 70 § 5; but for this our author has to go back as far as
Ine.

[87] Ibid. 59 § 25.

[88] Ibid. 59 § 24; 85 § 4: 'solus furatur qui cum servo furatur.'

[89] Ibid. 78 § 3; 59 § 25.

[90] Hist. Eng. Law, i. 398, 402.

[91] Hist. Eng. Law, ii. 457.

[92] See the Bath manumissions, Kemble, Saxons, i. 507 ff. Sometimes
a pound or a half-pound is paid.

[93] D. B. i. 26.

[94] Chron. Petrob. 163.

[95] D. B. i. 105 b, Devon: 'Rolf tenet de B[alduino] Boslie ...
Terra est 8 carucis. In dominio est 1 caruca et dimidia et 7
servi cum 1 caruca.' D. B. iv. 265: 'Balduinus habet 1
mansionem quae vocatur Bosleia ... hanc possunt arare 8
carrucae et modo tenet eam Roffus de Balduino. Inde habet R. 1
ferdinum et 1 carrucam et dimidiam in dominio et villani tenent
aliam terram et habent ibi 1 carrucam. Ibi habet R. 7 servos.'
In the Exeter record these seven serfs seem to get reckoned as
being both _servi_ and _villani_. So in the account of Rentis,
D. B. iv. 204-5, the lord is said to have one quarter of the
arable in demesne and two oxen, while the _villani_ are said to
have the rest of the arable and one team; but the only
_villani_ are 8 _coliberti_ and 4 _servi_.

[96] See last note.

[97] Ellis, Introduction, ii. 504-6.

[98] See, for example, the following Herefordshire entry, D. B. i.
180 b: 'In dominio sunt 2 carucae et 4 villani et 8 bordarii et
prepositus et bedellus. Inter omnes habent 4 carucas. Ibi 8
inter servos et ancillas et vaccarius et daia.'

[99] Mr Round has drawn attention to the great increase of
_bordarii_: Antiquary (1882) vi. 9. In the second of our two
experiments the cases were taken from the royal demesne and the
lands of the churches. The surveys of Norfolk and Suffolk
profess to enumerate the various classes of peasants T. R. E.;
but commonly each entry reports that there has been no change.
Without saying that we disbelieve these reports, we
nevertheless may say that a verdict which asserts that things
have always (_semper_) been as they now are may easily be the
outcome of nescience.

[100] Hist. Eng. Law, i. 53-4.

§ 3. _The Villeins._

[The boors or coliberts.]

Next above the _servi_ we see the small but interesting class of _buri_, _burs_ or _coliberti_. Probably it was not mentioned in the writ which set the commissioners their task, and this may well be the reason why it appears as but a very small class. It has some 900 members; still it is represented in fourteen shires: Hampshire, Berkshire, Wiltshire, Dorset, Somerset, Devon, Cornwall, Buckingham, Oxford, Gloucester, Worcester, Hereford, Warwick, Shropshire--in short, in the shires of Wessex and western Mercia. Twice over our record explains--a piece of rare good fortune--that _buri_ and _coliberti_ are all one[101]. In general they are presented to us as being akin rather to the _servi_ than to the _villani_ or _bordarii_, as when we are told, 'In demesne there is one virgate of land and there are 3 teams and 11 _servi_ and 5 _coliberti_, and there are 15 _villani_ and 15 _bordarii_ with 8 teams[102].' But this rule is by no means unbroken; sometimes the _coliberti_ are separated from the _servi_ and a precedence over the _cotarii_ or even over the _bordarii_ is given them. Thus of a Wiltshire manor it is written, 'In demesne there are 8 teams and 20 _servi_ and 41 _villani_ and 30 _bordarii_ and 7 _coliberti_ and 74 _cotarii_ have among them all 27 teams[103].' Again of a Warwickshire manor, 'There is land for 26 teams; in demesne are 3 teams and 4 _servi_ and 43 _villani_ and 6 _coliberti_ and 10 _bordarii_ with 16 teams[104].' A classification which turns upon legal status is cut by a classification which turns upon economic condition. The _colibertus_ we take to be an unfreer man (how there come to be degrees of freedom is a question to be asked by and by) than the _cotarius_ or the _bordarius_, but on a given manor he may be a more important person, for he may have plough beasts while the _cotarius_ has none, he may have two oxen while the _bordarius_ has but an ox.

[The Continental colibert.]

[The English boor.]

In calling him a _colibertus_ the Norman clerks are giving him a foreign name, the etymological origin of which is very dark[105]; but this much seems plain, that in the France of the eleventh century a large class bearing this name had been formed out of ancient elements, Roman _coloni_ and Germanic _liti_, a class which was not rightless (for it could be distinguished from the class of _servi_, and a _colibertus_ might be made a _servus_ by way of punishment for his crimes) but which yet was unfree, for the _colibertus_ who left his lord might be pursued and recaptured[106]. As to the Englishman upon whom this name is bestowed we know him to be a _gebúr_, a boor, and we learn something of him from that mysterious document entitled 'Rectitudines Singularum Personarum[107].' His services, we are told, vary from place to place; in some districts he works for his lord two days a week and during harvest-time three days a week; he pays gafol in money, barley, sheep and poultry; also he has ploughing to do besides his week-work; he pays hearth-penny; he and one of his fellows must between them feed a dog. It is usual to provide him with an outfit of two oxen, one cow, six sheep, and seed for seven acres of his yardland, and also to provide him with household stuff; on his death all these chattels go back to his lord. Thus the boor is put before us as a tenant with a house and a yardland or virgate, and two plough oxen. He will therefore play a more important part in the manorial economy than the cottager who has no beasts. But he is a very dependent person; his beasts, even the poor furniture of his house, his pots and crocks, are provided for him by his lord. Probably it is this that marks him off from the ordinary _villanus_ or 'townsman,' and brings him near the serf. In a sense he may be a free man. We have seen how the law, whether we look for it to the code of Cnut or to the Leges Henrici, is holding fast the proposition that every one who is not a _theówman_ is a free man, that every one is either a _liber homo_ or a _servus_. We have no warrant for denying to the boor the full wergild of 200 shillings. He pays the hearth-penny, or Peter's penny, and the document that tells us this elsewhere mentions this payment as the mark of a free man[108]. And yet in a very true and accurate sense he may be unfree, unfree to quit his lord's service. All that he has belongs to his lord; he must be perpetually in debt to his lord; he could hardly leave his lord without being guilty of something very like theft, an abstraction of chattels committed to his charge. Very probably if he flies, his lord has a right to recapture him. On the other hand, so dependent a man will be in a very strict sense a tenant at will. When he dies not only his tenement but his stock will belong to the lord; like the French _colibert_ he is _mainmortable_. At the same time, to one familiar with the cartularies of the thirteenth century the rents and services that this boor has to pay and perform for his virgate will not appear enormous. If we mistake not, many a _villanus_ of Henry III.'s day would have thought them light. Of course any such comparison is beset by difficulties, for at present we know all too little of the history of wages and prices. Nevertheless the intermediation of this class of _buri_ or _coliberti_ between the serfs and the villeins of Domesday Book must tend to raise our estimate both of the legal freedom and of the economic welfare of that great mass of peasants which is now to come before us[109].

[Villani, bordarii, cotarii.]

That great mass consists of some 108,500 _villani_, some 82,600 _bordarii_, and some 6,800 _cotarii_ and _coscets_[110]. Though in manor after manor we may find representatives of each of these three classes, we can see that for some important purpose they form but one grand class, and that the term _villanus_ may be used to cover the whole genus as well as to designate one of its three species. In the Exon Domesday a common formula, having stated the number of hides in the manor and the number of teams for which it can find work, proceeds to divide the land and the existing teams between the demesne and the _villani_--the _villani_, it will say, have so many hides and so many teams. Then it will state how many _villani_, _bordarii_, _cotarii_ there are. But it will sometimes fall out that there are no _villani_ if that term is to be used in its specific sense, and so, after having been told that the _villani_ have so much land and so many teams, we learn that the only _villani_ on this manor are _bordarii_[111]. The lines which divide the three species are, we may be sure, much rather economic than legal lines. Of course the law may recognise them upon occasion[112], but we can not say that the _bordarius_ has a different status from that of the _villanus_. In the Leges both fall under the term _villani_; indeed, as hereafter will be seen, that term has sometimes to cover all men who are not _servi_ but are not noble. Nor must we suppose that the economic lines are drawn with much precision or according to any one uniform pattern. Of _villani_ and _bordarii_ we may read in every county; _cotarii_ or _coscets_ in considerable numbers are found only in Kent, Sussex, Surrey, Middlesex, Wiltshire, Dorset, Somerset, Berkshire, Hertford and Cambridge, though they are not absolutely unknown in Buckingham, in Devon, in Hereford, Worcester, Shropshire, Yorkshire. We can not tell how the English jurors would have expressed the distinction between _bordarii_ and _cotarii_, for while the _cot_ is English, the _borde_ is French. If we are entitled to draw any inference from the distribution of the cottiers, it would be that the smallest of small tenements were to be found chiefly along the southern shore; but then there are no _cotarii_ in Hampshire, plenty in Sussex, Surrey, Wiltshire and Dorset. Again, in the two shires last mentioned some distinction seems to be taken between the _coscets_ and the _cotarii_, the former being superior to the latter[113]. Two centuries later we find a similar distinction among the tenants of Worcester Priory. There are _cotmanni_ whose rents and services are heavier, and whose tenements are presumably larger than those of the _cotarii_, though the difference is not very great[114].

[Size of the villain's tenement.]

The vagueness of distinctions such as these is well illustrated by the failure of the term _bordarius_ (and none is more prominent in Domesday Book) to take firm root in this country[115]. The successors of the _bordarii_ seem to become in the later documents either _villani_ with small or cottiers with large tenements. Distinctions which turn on the amount of land that is possessed or the amount of service that is done cannot be accurately formulated and forced upon a whole country. Perhaps in general we may endow the _villanus_ of Domesday Book with a virgate or quarter of a hide, while we ascribe to the _bordarius_ a less quantity and doubt whether the _cotarius_ usually had arable land. But the survey of Middlesex, which is the main authority touching this matter, shows that the _villanus_ may on occasion have a whole hide[116], that is four virgates, and that often he has but half a virgate; it shows us that the _bordarius_, though often he has but four or five acres, may have a half virgate, that is as much as many a _villanus_[117]; it shows us that the _cotarius_ may have five acres, that is as much as many a _bordarius_[118], though he will often have no more than a croft[119]. In Essex we hear of _bordarii_ who held no arable land[120]. Nor dare we lay down any stern rule about the possession of plough beasts. It would seem as if sometimes the _bordarius_ had oxen, while sometimes he had none[121]. The _villanus_ might have two oxen, but he might have more or less. We may find that in Cornwall a single team of eight is forthcoming where there are[122]

3 villani, 4 bordarii, 2 servi
2 " 2 " 3 "
0 " 5 " 2 "
1 " 5 " 1 "
2 " 5 " 4 "
2 " 3 " 1 "
3 " 6 " 3 "

In some Gloucestershire manors every villein seems to have a full plough team[123]. Merely economic grades are essentially indefinite. Who could have defined a 'cottage' in the eleventh century? Who can define one now[124]?

[Villeins and cottiers.]

In truth the vast class of men that we are examining must have been heterogeneous to a high degree. Not only were some members of it much wealthier than others, but in all probability some were economically subject to others. So it was in later days. In the thirteenth century we may easily find a manor in which the lord is paying hardly any wages. He gets nearly all his agricultural work done for him by his villeins and his cottiers. Out of his cottiers however he will get but one day's work in the week. If then we ask what the cottiers are doing during the rest of their time, the answer surely must be that they are often working as hired labourers on the villein's virgates, for a cottier can not have spent five days in the week over the tillage of his poor little tenement. It is a remarkable feature of the manorial arrangement that the meanest of the lord's _nativi_ are but rarely working for him. Thus if we were to remove the lord in order that the village community might be revealed, we should still see not only rich and poor, but employers and employed, villagers and 'undersettles.'

[Freedom and unfreedom of _villani_.]

Now all these people are in a sense unfree, while yet in some other sense they are free. Let us then spend a short while in discussing the various meanings that freedom may have in a legal classification of the sorts and conditions of men. When we have put out of account the rightless slave, who is a thing, it still remains possible to say that some men are unfree, while others are free, and even that freedom is a matter of degree. But we may use various standards for the measurement of liberty.

[Meaning of freedom.]

Perhaps in the first place we shall think of what German writers call _Freizügigkeit_, the power to leave the master whom one has been serving. This power our ancestors would perhaps have called 'fare-worthiness[125].' If the master has the right to recapture the servant who leaves his service, or even if he has the right to call upon the officers of the state to pursue him and bring him back to his work, then we may account this servant an unfree man, albeit the relation between him and his master has been created by free contract. Such unfreedom is very distinct from rightlessness. As a freak of jurisprudence we might imagine a modern nobleman entitled to reduce by force and arms his fugitive butler to well-paid and easy duties, while all the same that butler had rights against all the world including his master, had access to all courts, and could even sue for his wages if they were not punctually paid. If we call him unfree, then freedom will look like a matter of degree, for the master's power to get back his fugitive may be defined by law in divers manners. May he go in pursuit and use force? Must he send a constable or sheriff's officer? Must he first go to court and obtain a judgment, 'a decree for specific performance' of the contract of service? The right of recapture seems to shade off gradually into a right to insist that a breach of the contract of service is a criminal offence to be punished by fine or imprisonment.

Then, again, there may seem to us to be more of unfreedom in the case of one who was born a servant than in the case of one who has contracted to serve, though we should note that one may be born to serve without being born rightless.

More to the point than these obvious reflections will be the remark that in the thirteenth century we learn to think of various spheres or planes of justice. A right good in one sphere may have no existence in another. The rights of the villeins in their tenements are sanctioned by manorial justice; they are ignored by the king's courts. Here, again, the ideas of freedom and unfreedom find a part to play. True that in the order of legal logic freedom may precede royal protection; a tenure is protected because it is free; still men are soon arguing that it is free because it is protected, and this probably discloses an idea which lies deep[126]:--the king's courts, the national courts, are open to the free; we approach the rightlessness of the slave if our rights are recognized only in a court of which our lord is the president.

The thirteenth century will also supply us with the notion that continuous agricultural service, service in which there is a considerable element of uncertainty, is unfree service. Where from day to day the lord's will counts for much in determining the work that his tenants must do, such tenants, even if they be free men, are not holding freely. But uncertainty is a matter of degree, and therefore unfreedom may easily be regarded as a matter of degree[127].

Then, again, in the law books of the Norman age we see distinct traces of a usage which would make _liber_ or _liberalis_ an equivalent for our _noble_, or at least for our _gentle_. The common man with the wergild of 200 shillings, though indubitably he is no _servus_, is not _liberalis homo_[128].

Lastly, in our thirteenth century we learn that privileges and exceptional immunities are 'liberties' and 'franchises.' What is our definition of a liberty, a franchise? A portion of royal power in the hands of a subject. In Henry III.'s day we do not say that the Earl of Chester is a freer man, more of a _liber homo_, than is the Earl of Gloucester, but we do say that he has more, greater, higher liberties.

Therefore we shall not be surprised if in Domesday Book what we read of freedom, of free men, of free land is sadly obscure. Let us then observe that the _villanus_ both is and is not a free man.

[The villein as free.]

According to the usual terminology of the Leges, everyone who is above the rank of a _servus_, but below the rank of a thegn, is a _villanus_. The _villanus_ is the non-noble _liber homo_. All those numerous sokemen of the eastern counties whom Domesday ranks above the _villani_, all those numerous _liberi homines_ whom it ranks above the sokemen, are, according to this scheme, _villani_ if they be not thegns. And this scheme is still of great importance, for it is the scheme of _bót_ and _wer_. By what have been the most vital of all the rules of law, all these men have been massed together; each of them has a _wer_ of two hundred shillings[129]. This, we may remark in passing, is no trivial sum, though the shillings are the small Saxon shillings of four pence or five pence. There seems to be a good deal of evidence that for a long time past the ox had been valued at 30 pence, the sheep at 5 pence[130]. At this rate the ceorl's death must be paid for by the price of some twenty-four or thirty oxen. The sons of a _villanus_ who had but two oxen must have been under some temptation to wish that their father would get himself killed by a solvent thegn. Very rarely indeed do the Leges notice the sokeman or mention _liberi homines_ so as to exclude the _villani_ from the scope of that term[131]. Domesday Book also on occasion can divide mankind into slaves and free men. It does so when it tells us that on a Gloucestershire manor there were twelve _servi_ whom the lord had made free[132]. It does so again when it tells us that in the city of Chester the bishop had eight shillings if a free man, four shillings if a serf, did work upon a festival[133]. So in a description of the manor of South Perrott in Somerset we read that a certain custom is due to it from the manor of 'Cruche' (Crewkerne), namely, that every free man must render one bloom of iron. We look for these free men at 'Cruche' and see no one on the manor but _villani_, _bordarii_, _coliberti_ and _servi_[134]. Of the Count of Mortain's manor of Bickenhall it is written that every free man renders a bloom of iron at the king's manor of Curry; but at Bickenhall there is no one above the condition of a _villanus_[135]. Other passages will suggest that the _villanus_ sometimes is and sometimes is not _liber homo_. On a Norfolk manor we find free villeins, _liberi villani_[136].

[The villein as unfree.]

For all this, however, there must be some very important sense in which the _villanus_ is not free. In the survey of the eastern counties he is separated from the _liberi homines_ by the whole class of _sochemanni_. 'In this manor,' we are told, 'there was at that time a free man with half a hide who has now been made one of the villeins[137].' At times the word _francus_ is introduced so as to suggest for a moment that, though the villein may be _liber homo_, he is not _francus_[138]. But this suggestion, even if it be made, is not maintained, and there are hundreds of passages which implicitly deny that the villein is _liber homo_. But then these passages draw the line between freedom and unfreedom at a point high in the legal scale, a point far above the heads of the _villani_. At least for the main purposes of Domesday Book the free man is a man who holds land freely. Let us observe what is said of the men who have been holding manors. The formula will vary somewhat from county to county, but we shall often find four phrases used as equivalent, '_X_ tenuit et liber homo fuit,' '_X_ tenuit ut liber homo,' '_X_ tenuit et cum terra sua liber fuit,' '_X_ tenuit libere[139].' But this freeholding implies a high degree of freedom, freedom of a kind that would have shocked the lawyers of a later age.

[Anglo-Saxon 'freeholding.']

With some regrets we must leave the peasants for a while in order that we may glance at the higher strata of society. We may take it as certain that, at least in the eyes of William's ministers, the ordinary holder of a manor in the time of the Confessor had been holding it under (_sub_) some lord, if not of (_de_) some lord. But then the closeness of the connexion between him and his lord, the character of the relation between lord, man and land, had varied much from case to case. Now these matters are often expressed in terms of a calculus of personal freedom. But let us begin with some phrases which seem intelligible enough. The man can, or he can not, 'sell or give his land'; he can, or he can not, 'sell or give it without the licence of his lord'; he can sell it if he has first offered it to his lord[140]; he can sell it on paying his lord two shillings[141]. This seems very simple:--the lord can, or (as the case may be) can not, prevent his tenant from alienating the land; he has a right of preemption or he has a right to exact a fine when there is a change of tenants. But then come phrases that are less in harmony with our idea of feudal tenure. The man can not sell his land 'away from' his lord[142], he can not give or sell it 'outside' a certain manor belonging to his lord[143], or, being the tenant of some church, he can not 'separate' his land from the church[144], or give or sell it outside the church[145].

[Freeholding and the lord's rights.]

We have perhaps taken for granted under the influence of later law that an alienation will not impair the lord's rights, and will but give him a new instead of an old tenant. But it is not of any mere substitution such as this that these men of the eleventh century are thinking. They have it in their minds that the man may wish, may be able, utterly to withdraw his land from the sphere of his lord's rights. Therefore in many cases they note with some care that the man, though he can give or sell his land, can not altogether put an end to such relation as has existed between this land and his lord. He can sell, but some of the lord's rights will 'remain,' in particular the lord's 'soke' over the land (for the present let us say his jurisdiction over the land) will remain[146]. The purchaser will not of necessity become the 'man' of this lord, will not of necessity owe him any _servitium_ or _consuetudo_, but will come under his jurisdiction[147]. Interchanging however with these phrases[148], we have others which seem to point to the same set of distinctions, but to express them in terms of personal freedom. The man can, or else he can not, withdraw from his lord, go away from his lord, withdraw from his lord's manor; he can or he can not withdraw with his land; he can or can not go to another lord, or go wherever he pleases[149]. Some of these phrases will, if taken literally, seem to say that the persons of whom they are used are tied to the soil; they can not leave the land, or the manor, or the soke. Probably in some of these cases the bond between man and lord is a perpetual bond of homage and fealty, and if the man breaks that bond by refusing the due obedience or putting himself under another lord, he is guilty of a wrong[150]. But of pursuing him and capturing him and reducing him to servitude there can be no talk. Many of these persons who 'can not recede' are men of wealth and rank, of high rank that is recognized by law, they are king's thegns or the thegns of the churches, they are 'twelve-hundred men[151].' However, it is not the man's power to leave his lord so much as the power to leave his lord and take his land with him, that these phrases bring to our notice; or rather the assumption is made that no one will want to leave his lord if he must also leave his land behind him. And then this power of taking land from this lord and bringing it under another lord is conceived as an index of personal freedom. Thus we read: 'These men were so free that they could go where they pleased[152],' and again, 'Four sokemen held this land, of whom three were free, while the fourth held one hide but could not give or sell it[153].' Not that no one is called a _liber homo_ unless he has this power of 'receding' from his lord; far from it; all is a matter of degree; but the free man is freer if he can 'go to what lord he pleases,' and often enough the phrases 'X tenuit et liber homo fuit,' 'X tenuit libere,' 'X tenuit ut liber homo' seem to have no other meaning than this, that the occupant of the land enjoyed the liberty of taking it with him whithersoever he would. Therefore there is no tautology in saying that the holder of the land was a thegn and a free man, though of course there is a sense, there are many senses, in which every thegn is free[154]. All this talk of the freedom that consists in choosing a lord and subjecting land to him may well puzzle us, for it puzzled the men of the twelfth century. The chronicler of Abingdon abbey had to explain that in the old days a free man could do strange things[155].

[The scale of freeholding.]

Comparisons may be instituted between the freedom of one free man and that of another:--'Five thegns held this land of Earl Edwin and could go with their land whither they would, and below them they had four soldiers, who were as free as themselves[156].' A high degree of liberty is marked when we are told that, 'The said men were so free that they could sell their land with soke and sake wherever they would[157].' But there are yet higher degrees of liberty. Of Worcestershire it is written, 'When the king goes upon a military expedition, if anyone who is summoned stays at home, then if he is so free a man that he has his sake and soke and can go whither he pleases with his land, he with all his land shall be in the king's mercy[158].' The free man is the freer if he has soke and sake, if he has jurisdiction over other men. Exceptional privileges, immunities from common burdens, are already regarded as 'liberties.' This is no new thing; often enough when the Anglo-Saxon land books speak of freedom they mean privilege.

[Free land.]

The idea of freedom is equally vague and elastic if, instead of applying it to men, we apply it to land or the tenure of land. Two _bordarii_ are now holding a small plot; 'they themselves held it freely in King Edward's day[159].' Here no doubt there has been a fall; but how deep a fall we can not be sure. To say that a man's land is free may imply far more freedom than freehold tenure implies in later times; it may imply that the bond between him and his lord, if indeed he has a lord, is of a purely personal character and hardly gives the lord any hold over the land[160]. But this is not all. Perfect freedom is not attained so long as the land owes any single duty to the state. Often enough--but exactly how often it were no easy task to tell--the _libera terra_ of our record is land that has been exempted even from the danegeld; it is highly privileged land[161]. Let us remember that at the present day, though the definition of free land or freehold land has long ago been fixed, we still speak as though free land might become freer if it were 'free of land-tax and tithe rent-charge.'

[The unfreedom of the villein.]

If now we return to the _villanus_ and deny that he is _liber homo_ and deny also that he is holding freely, we shall be saying little and using the laxest of terms. There are half-a-dozen questions that we would fain ask about him, and there will be no harm in asking them, though Domesday Book is taciturn.

[Can the villein be pursued?]

Is he free to quit his lord and his land, or can he be pursued and captured? No one word can be obtained in answer to this question. We can only say that in Henry II.'s day the ordinary peasant was regarded by the royal officials as _ascriptitius_; the land that he occupied was said to be part of his lord's demesne; his chattels were his lord's[162]. But then this was conceived to be, at least in some degree, the result of the Norman Conquest and subsequent rebellions of the peasantry[163]. To this we may add that in one of our sets of Leges, the French Leis of William the Conqueror, there are certain clauses which would be of great importance could we suppose that they had an authoritative origin, and which in any case are remarkable enough. The _nativus_ who flies from the land on which he is born, let none retain him or his chattels; if the lords will not send back these men to their land the king's officers are to do it[164]. On the other hand, the tillers of the soil are not to be worked beyond their proper rent; their lord may not remove them from their land so long as they perform their right services[165]. Whether or no we suppose that in the writer's opinion the ordinary peasant was a _nativus_ (of _nativi_ Domesday Book has nothing to say) we still have law more favourable to the peasant than was the common law of Bracton's age:--a tiller who does his accustomed service is not to be ejected; he is no tenant at will.

[Rarity of flight.]

Hereafter we shall show that the English peasants did suffer by the substitution of French for English lords. But the question that we have asked, so urgent, so fundamental, as it may seem to us, is really one which, as the history of the Roman _coloni_ might prove, can long remain unanswered. Men may become economically so dependent on their lords, on wealthy masters and creditors, that the legal question whether they can quit their service has no interest. Who wishes to leave his all and go forth a beggar into the world? On the whole we can find no evidence whatever that the men of the Confessor's day who were retrospectively called _villani_ were tied to the soil. Certainly in Norman times the tradition was held that according to the old law the _villanus_ might acquire five hides of land and so 'thrive to thegn-right[166].'

[The villein and seignorial justice.]

Our next question should be whether he was subject to seignorial justice. This is part of a much wider question that we must face hereafter, for seignorial justice should be treated as a whole. We must here anticipate a conclusion, the proof of which will come by and by, namely, that the _villanus_ sometimes was and sometimes was not the justiciable of a court in which his lord or his lord's steward presided. All depended on the answer to the question whether his lord had 'sake and soke.' His lord might have justiciary rights over all his tenants, or merely over his _villani_, or he might have no justiciary rights, for as yet 'sake and soke' were in the king's gift, and the mere fact that a lord had 'men' or tenants did not give him a jurisdiction over them.

[The villein and national justice.]

With this question is connected another, namely, whether the _villani_ had a _locus standi_ in the national courts. We have seen six _villani_ together with the priest (undoubtedly a free man) and the reeve of each vill summoned to swear in the great inquest[167]. One of the most famous scenes recorded by our book is that in which William of Chernet claimed a Hampshire manor on behalf of Hugh de Port and produced his witnesses from among the best and eldest men of the county; but Picot, the sheriff of Cambridgeshire, who was in possession, replied with the testimony of villeins and mean folk and reeves, who were willing to support his case by oath or by ordeal[168]. Again, in Norfolk, Roger the sheriff claimed a hundred acres and five _villani_ and a mill as belonging to the royal manor of Branfort, and five _villani_ of the said manor testified in his favour and offered to make whatever proof anyone might adjudge to them, but the half-hundred of Ipswich testified that the land belonged to a certain church of St. Peter that Wihtgar held, and he offered to deraign this[169]. Certainly this does not look as if _villani_ were excluded from the national moots. But a rule which valued the oath of a single thegn as highly as the oath of six ceorls would make the ceorl but a poor witness and tend to keep him out of court[170]. The men who are active in the communal courts, who make the judgments there, are usually men of thegnly rank; but to go to court as a doomsman is one thing, to go as a litigant is another[171].

[The villein and his land.]

We may now approach the question whether, and if so in what sense, the land that the _villanus_ occupies is his land. Throughout Domesday Book a distinction is sedulously maintained between the land of the villeins (_terra villanorum_) and the land that the lord has _in dominio_. Let us notice this phrase. Only the demesne land does the lord hold _in dominio_, in ownership. The delicate shade of difference that Bracton would see between _dominicum_ and _dominium_ is not as yet marked. In later times it became strictly correct to say that the lord held in demesne (_in dominico suo_) not only the lands which he occupied by himself or his servants, but also the lands held of him by villein tenure[172]. This usage appears very plainly in the Dialogue on the Exchequer. 'You shall know,' says the writer, 'that we give the name demesnes (_dominica_) to those lands that a man cultivates at his own cost or by his own labour, and also to those which are possessed in his name by his _ascriptitii_; for by the law of this kingdom not only can these _ascriptitii_ be removed by their lords from the lands that they now possess and transferred to other places, but they may be sold and dispersed at will; so that rightly are both they and the lands which they cultivate for the behalf of their lords accounted to be _dominia_[173].' Far other is the normal, if not invariable, usage of Domesday Book. The _terrae villanorum_, the _silvae villanorum_, the _piscariae villanorum_, the _molini villanorum_--for the villeins have woods and fisheries and mills--these the lord does not hold _in dominio_[174]. Then again the oxen of the villeins are carefully distinguished from the oxen of the demesne, while often enough they are not distinguished from the oxen of those who in every sense are free tenants[175]. Now as regards both the land and the oxen we seem put to the dilemma that either they belong to the lord or else they belong to the villeins. We cannot avoid this dilemma, as we can in later days, by saying that according to the common law the ownership of these things is with the lord, while according to the custom of the manor it is with the villeins, for we believe that a hall-moot, a manorial court, is still a somewhat exceptional institution.

On the whole we can hardly doubt that both in their land and in their oxen the villeins have had rights protected by law. Let us glance once more at the scheme of _bót_ and _wer_ that has been in force. A villein is slain; the _manbót_ payable to his lord is marked off from the much heavier _wergild_ that is payable to his kindred. If all that a villein could have belonged to his lord such a distinction would be idle.

[The villein's land and the geld.]

Still we take it that for one most important purpose the villein's land is the lord's land:--the lord must answer for the geld that is due from it. Not that the burden falls ultimately on the lord. On the contrary, it is not unlikely that he makes his villeins pay the geld that is due from his demesne land; it is one of their services that they must 'defend their lord's inland' against the geld. But over against the state the lord represents as well the land of his villeins as his own demesne land. From the great levy of 1084 the demesne lands of the barons had been exempted[176], but no doubt they had been responsible for the tax assessed on the lands held by their _villani_. We much doubt whether the collectors of the geld went round to the cottages of the villeins and demanded here six pence and there four pence; they presented themselves at the lord's hall and asked for a large sum. Nay, we believe that very often a perfectly free tenant paid his geld to his lord, or through his lord[177]. Hence arrangements by which some hides were made to acquit other hides; such, for example, was the arrangement at Tewkesbury; there were fifty hides which had to acquit the whole ninety-five hides from all geld and royal service[178]. And then it might be that the lord, enjoying a special privilege, was entitled to take the geld from his tenants and yet paid no geld to the king; thus did the canons of St. Petroc in Cornwall[179] and the monks of St. Edmund in Suffolk[180]. But as regards lands occupied by villeins, the king, so it seems to us, looks for his geld to the lord and he does not look behind the lord. This is no detail of a fiscal system. A potent force has thus been set in motion. He who pays for land,--it is but fair that he should be considered the owner of that land. We have a hint of this principle in a law of Cnut:--'He who has "defended" land with the witness of the shire, is to enjoy it without question during his life and on his death may give or sell it to whom he pleases[181].' We have another hint of this principle in a story told by Heming, the monk of Worcester:--in Cnut's time but four days of grace were given to the landowner for the payment of the geld; when these had elapsed, anyone who paid the geld might have the land[182]. It is a principle which, if it is applied to the case of lord and villein, will attribute the ownership of the land to the lord and not to the villein.

[The villein's services.]

And then we would ask: What services do the villeins render? A deep silence answers us, and as will hereafter be shown, there are many reasons why we should not import the information given us by the monastic cartularies, even such early cartularies as the Black Book of Peterborough, into the days of the Confessor. No doubt the villeins usually do some labour upon the lord's demesne lands. In particular they help to plough it. A manor, we can see, is generally so arranged that the ratio borne by the demesne oxen to the demesne land will be smaller than that borne by the villeins' oxen to the villeins' land. Thus, to give one example out of a hundred, in a Somersetshire manor the lord has four hides and three teams, the villeins have two hides and three teams[183]. But then the lord gets some help in his agriculture from those who are undoubtedly free tenants. The teams of the free tenants are often covered by the same phrase that covers the teams of the villeins[184]. Radknights who are _liberi homines_ plough and harrow at the lord's court[185]. The very few entries which tell us of the labour of the villeins are quite insufficient to condemn the whole class to unlimited, or even to very heavy work. On a manor in Herefordshire there are twelve bordiers who work one day in the week[186]. On the enormous manor of Leominster there are 238 _villani_ and 85 _bordarii_. The _villani_ plough and sow with their own seed 140 acres of their lord's land and they pay 11 pounds and 52 pence[187]. On the manor of Marcle, which also is in Herefordshire, there are 36 _villani_ and 10 _bordarii_ with 40 teams. These _villani_ plough and sow with their own seed 80 acres of wheat and 71 of oats[188]. At Kingston, yet another manor in the same county, 'the _villani_ who dwelt there in King Edward's day carried venison to Hereford and did no other service, so says the shire[189].' On one Worcestershire manor of Westminster Abbey 10 villeins and 10 bordiers with 6 teams plough 6 acres and sow them with their own seed; on another 8 villeins and 6 bordiers with 6 teams do the like by 4 acres[190]. This is light work. Casually we are told of burgesses living at Tamworth who have to work like the other villeins of the manor of Drayton to which they are attached[191], and we are told of men on a royal manor who do such works for the king as the reeve may command[192]; but, curiously enough, it is not of any villeins but of the Bishop of Worcester's riding men (_radmanni_) that it is written 'they do whatever is commanded them[193].'

[Money rents paid by villeins.]

With our thirteenth century cartularies before us, we might easily underrate the amount of money that was already being paid as the rent of land at the date of the Conquest. In several counties we come across small groups of _censarii_, _censores_, _gablatores_ who pay for their land in money, of _cervisarii_ and _mellitarii_ who bring beer and honey. Renders in kind, in herrings, eels, salmon are not uncommon, and sometimes they are 'appreciated,' valued in terms of money. The pannage pig or the grass swine, which the villeins give in return for mast and herbage, is often mentioned. Throughout Sussex it seems to be the custom that the lord should have 'for herbage' one pig from every villein who has seven pigs[194]. But money will be taken instead of swine, oxen or fish[195]. The _gersuma_, the _tailla_, the theoretically free gifts of the tenants, are sums of money. But often enough the _villanus_ is paying a substantial money rent. We have seen how at Leominster villeins plough and sow 140 acres for their lord and pay a rent of more than £11[196]. At Lewisham in Kent the Abbot of Gand has a manor valued at £30; of this £2 is due to the profits of the port while two mills with 'the gafol of the rustics' bring in £8. 12_s._[197] Such entries as the following are not uncommon--there is one villein rendering 30_d._[198]--there is one villein rendering 10_s._[199]--46 _cotarii_ with one hide render 30 shillings a year[200]--the villeins give 13_s._ 4_d._ by way of _consuetudo_[201]. No doubt it would be somewhat rare to find a villein discharging all his dues in money--this is suggested when we are told how on the land of St. Augustin one Wadard holds a large piece 'de terra villanorum' and yet renders no service to the abbot save 30_s._ a year[202]. At least in one instance the villeins seem to be holding the manor in farm, that is to say, they are farming the demesne land and paying a rent in money or in provender[203]. We dare not represent the stream of economic history as flowing uninterruptedly from a system of labour services to a system of rents. We must remember that in the Conqueror's reign the lord very often had numerous serfs whose whole time was given to the cultivation of his demesne. In the south-western counties he will often have two, three or more serfs for every team that he has on his demesne, and, while this is so, we can not safely say that his husbandry requires that the villeins should be labouring on his land for three or four days in every week.

[The English for _villanus_.]