Chapter VIII: The Unfree. the Serf (1)

We have considered the case of the wife, the son and the daughter[323], as far as can be done until we come to deal with the family relations; and we have examined the position of one peculiar class of the unfree, namely the comites or gesíðas of the kingly leaders. Another, but less favoured, class remain to be noticed, those namely whom the Latin authors designate by the terms Libertus and Servus, and who, among all the nations of Germanic origin, are found under the corresponding denominations of Lazzi or Dió, Læt or Ðeów, Lýsingr or þræl. These have no honourable, no profitable service to compensate for the loss of independence, but form the large body of hired cultivators, the artizans and handicraftsmen in various branches of industry, the prædial, even the domestic or menial servants of the free landowner.

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Footnote 323:

Page 129.

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The grounds as well as the degrees of slavery (by which term I mean dependence, the being in the mund of another, and represented by him in the folcmót) are various; one, viz. poverty arising from over-population, has been noticed in the last chapter; but I agree with Eichhorn[324] and Grimm[325], in attributing the principal and original cause of slavery in all its branches to war and subsequent conquest. Another and important cause is forfeiture of liberty for crime; and the amount of dependence, the gentler or harsher condition of the serf, depends to a great extent upon the original ground of servitude. If the victor has a right to the life of the vanquished, which by the law of nature is unquestionably the case, he possesses _à fortiori_ a perfect claim to the person, the property and the services of his prisoner, if his self-interest or the dictates of humanity induce him to waive that right[326]. These remarks apply no doubt, in their full force, only to our pagan forefathers; but even Christianity itself did not at once succeed in rooting out habits which its divine precepts of justice and mercy emphatically condemn. Beda, in his desire to prove the efficacy of the mass for the dead[327], tells an interesting story of a young noble who was left severely wounded on the field, after a battle between Ecgfrið of Northumberland and Æðelred of Mercia, in the year 679. Fearful of the consequences should his rank be discovered, he disguised himself in the habit of a peasant, and assumed that character, at the castle of the earl into whose hands he fell; declaring that he was a poor, and married man[328], who had been compelled to attend the army with supplies of provisions. But his language and manners betrayed him, and at length, under a solemn promise of immunity, he revealed his name and station. The reply of the earl is characteristic; he said: “I knew well enough from thy answers that thou wert no rustic; and now indeed thou art worthy of death, seeing that all my brothers and relations were slain in that battle: yet I will not kill thee, lest I should break the faith that I have pledged.” Accordingly when his wounds were healed, his captor sold him to a Frisian in London, who, finding that he could not be bound, finally released him on his parole and permitted him to ransom himself. Whatever the motive, it is thus clear that the victor possessed the right of life and death over his captive, even when taken in cold blood; and the traditions, as well as the historical records of the northern nations are filled with instances of its exercise.

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Footnote 324:

Deut. Staatsges. i. 72, § 15.

Footnote 325:

Deutsche Rechtsalterthümer, p. 320, with the numerous examples there
given. So Fleta. “Fiunt autem homines servi de iure gentium
captivitate: bella enim orta sunt, et captivitates sequutae. Fiunt
etiam de iure civili, per confessionem in curia fisci factam.” Lib. i.
c. 3. § 3.

Footnote 326:

A whole army may be devoted as victims by the conquerors. “Sed bellum
Hermunduris prosperum, Cattis exitiosius fuit, quia victores diversam
aciem Marti ac Mercurio sacravere, quo voto equi, viri, cuncta, victa
occidioni dantur.” Tac. Annal, xiii. 57. “Lucis propinquis barbarae
arae, apud quas tribunos ac primorum ordinum centuriones mactaverant:
et cladis ... superstites, pugnam aut vincula elapsi, referebant ...
quot patibula captivis, quae scrobes,” etc. Tac. Annal. i. 61.

Footnote 327:

Hist. Eccles. iv. 22.

Footnote 328:

This is confirmatory of the statement in the last chapter, that,
strictly speaking, the _Comes_ could not marry. One cannot see why the
assertion should have been made on any other grounds: his great
anxiety was to prove himself not a comes or minister, and as one
argument, he states himself to be “uxoreo nexu constrictus.”

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It does not however by any means follow that the total defeat of a hostile tribe resulted in the immediate and direct enslaving of all the survivors: as in the example just cited, the blood-feud no doubt frequently led to the murder of the captive chiefs and nobles, even if less justifiable motives did not counsel the same miserable means of removing dangerous competitors[329]; but the heavy doom of death must have been one of the melancholy privileges of the noble class: and even though many of the common freemen may have been sold or retained as slaves at the caprice of the captors, still we cannot suppose this to have been the lot of any but those who had actually taken part in combat; no natural or national law could extend these harsh provisions to the freemen who remained quiet at home. Nevertheless even these were liable to be indirectly affected by the hostile triumph, inasmuch as the conquerors appear invariably to have taken a portion, more or less great, of the territory occupied by the conquered[330]: and wherever this is the case to the extent of depriving the cultivator of means sufficient for his support, he has no resource but to place himself in dependence upon some wealthier man, and lose, together with his lot or κληρος, the right to form an integral part of the state: the degree of his dependence, and the consequent comparative suffering to himself, may vary with a multitude of circumstances; but the one fact still remains, viz. that he is in the mund or hand of another, represented in the state by that other, and consequently, in the most emphatic sense of the word, _unfree_.

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Footnote 329:

After a battle between Ragnachari and Chlodowich, in which the former
was taken prisoner, the victor thus addressed him: “Cui dixit
Chlodoveus, Cur humiliasti gentem nostram, ut te vinciri permitteres?
Nonne melius tibi fuerit mori? Et elevata bipenne, in caput eius
defixit, et mortuus est. Conversusque ad fratrem eius, ait: Si tu
solatium fratri tuo praebuisses, ille ligatus non fuisset! Similiter
et ipsum in capite percussum interfecit, et mortuus est.” Gest. Reg.
Franc. (Script. Rer. Gall. et Francic. ii. 555.) It was the interest
of Chlodowich to put these princes to death, but there must still have
been some _right_ acknowledged in him to do so. He seems however to
rest it upon the disgrace which they had brought upon the mǽgburh,
_gens_ or family, by suffering themselves to be captured and bound.

Footnote 330:

“Quod Ariovistus ... in eorum finibus consedisset, tertiamque partem
agri Sequani qui esset optimus totius Galliae, occupavisset; et nunc
de altera parte tertia Sequanos decedere iuberet.” Cæs. Bell. Gall. i.
32. The same proportion of a _third_, sometimes however in produce,
not land, occurs in other cases: Eichhorn, Deut. Staatsges. i. 161
_seq._ § 23, with the accompanying quotations.

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It is now generally admitted that this must have been the case with the whole population in some districts, who thus became dependent upon a few intrusive lords: but still these populations cannot be said to have stood in that peculiar relation to the conquerors, which the word _servus_ strictly implies towards an owner. The utmost extent of their subjection probably reached no further than the payment of tribute, the exclusion from military duty and the standing under a protectorate[331]. Inglorious and easy, when once the dues of the lord were paid, they may even have rejoiced at being spared the danger of warfare and the laborious suit of the folcmót, and forgotten that self-government is the inherent right and dignity of man, in the convenience of having others to defend and rule them. Moreover the territorial subjection was not necessarily a juridical one: indeed some of the Teutonic conquerors recognized as positive law, the right of even the dependent Romans and Provincials to be judged and taxed according to the rules and maxims of Roman, not Salic or Langobardic, jurisprudence: and this, when carried out in the fullest detail with respect to the various tribes at any time united under one supreme head, constitutes what is now called the system of _Personal Right_, whereby each man enjoyed the law and forms of law to which he was born, without the least reference to the peculiar district in which he might happen to live; in other words, that he carried his own law about, whithersoever he went, as a quality attached to his own person, and not in the slightest degree connected with or dependent upon any particular locality. In this way Alamanni, Baiowari, Saxons, Frisians, Langobards, Romans, Gallic provincials and Slavonic populations, were all united under the empire of the Salic and Ripuarian Franks[332]. The peculiar circumstances under which the conquest took place must, of course, have defined the relations under which the subject stood to the ruling state. It is conceivable that the conquerors might not want land, but be contented with glory and pillage; or they might not be able to seize and retain the conquered territory: or again they may have required new settlements for themselves and their allies, to obtain which they waged a war of extermination. Thus the Suevi, although unable to expel the Ubii altogether from their territory, yet succeeded in rendering them tributary[333]; while in Thuringia, the Franks and their Saxon allies seized all the land, slaying, expelling or completely reducing the indigenous inhabitants to slavery. Another and curious instance may be cited from a comparatively late period, when the little island of Man was invaded, conquered and colonized by the Norwegian Godred. “Godredus sequenti die optionem exercitui suo dedit, ut si mallent Manniam inter se dividere et in ea habitare, vel cunctam substantiam terrae accipere et ad propria remeare. Hiis autem magis placuit totam insulam vastare, et de bonis illius ditari, et sic ad propria reverti. Godredus autem paucis qui secum remanserunt de insulanis australem partem insulae, et reliquiis Mannensium aquilonarem tali pacto concessit, ut nemo eorum aliquando auderet iure haereditario sibi aliquam partem terrae usurpare. Unde accidit ut usque in hodiernum diem tota insula solius regis sit, et omnes redditus eius ad ipsum pertineant[334].” The not being able to dispose of property hereditarily is the true badge and proof of slavery.

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Footnote 331:

This is the condition of the Perioecians in Laconia, with the
exception that these were called upon for military service. The
Helotae or Penestae were more nearly praedial serfs.

Footnote 332:

This led by degrees to the vast power and influence of all the clergy,
who were originally Roman, and who, whatever their nation might be,
lived under the Roman law, “per clericalem clericalem

Footnote 333:

Caesar, Bell. Gall. iv. 3. The Franks imposed a tribute of hides upon
the Frisians: we hear also of tribute paid them by the Thuringians,
Saxons and Slavic races.

Footnote 334:

A.D. 1056. Chron. Manniae. MS. Cott., Jul. A. VII., fol. 32.

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Tacitus draws a great distinction between the different degrees of servitude among the Germans. He tells us that the unsuccessful gambler who had staked and lost his liberty and the free disposal of his own body upon one fatal cast of the dice, would voluntarily submit to be bound and sold[335], but that it was not usual for them to reduce their other serfs to the condition of menials; they only demanded from them a certain amount of produce (or, unquestionably, of labour in the field or pasture), and then left them the enjoyment of their own dwellings and property[336]. The general duties of the house, beyond such supplies, which were provided for among the Romans by the _ministeria per familiam descripta_, were left among the Germans to the wife and children of the householder[337]. It will be desirable to follow a somewhat similar distinction in treating of the different kinds of slaves; and having shown that one class of the unfree are those who have been partially dispossessed by conquest, but retain their personal freedom in some degree, to proceed to those who are personally unfree, the mere chattels of a lord who can dispose of them at his pleasure, even to the extent of sale, mutilation and death. The class we have hitherto been observing is that intended by the term Læt in Anglosaxon, Litus, Lito, Lazzo, etc. in German monuments[338], and the Laeti of the Romans, applied by them to the auxiliary Germans settled on imperial land, and bound to pay tribute and perform military service. They formed, as Grimm has well observed, a sort of middle class among the unfree; comprising the great majority of those who, without being absolutely their own masters, were yet placed somewhat above the lowest and most abject condition of man, which we call slavery. This condition among our forefathers was termed þeówet; the _servus_ was þeów, the _ancilla_ þeówen; or, as the original serfs of the English were the vanquished Britons, Wealh and Wyln.

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Footnote 335:

“Servos conditionis huius per commercia tradunt, ut se quoque pudore
victoriae exsolvant.” Germ. xxiv. The last member of the sentence is a
bit of imaginative morality which we shall acquit the Germans of
altogether. The very word _caeteris_ in the next sentence shows
clearly enough that if they did sell some slaves _conditionis huius_,
they kept others for menial functions.

Footnote 336:

“Caeteris servis, non in nostrum morem, descriptis per familiam
ministeriis, utuntur. Suam quisque sedem, suos penates regit. Frumenti
modum dominus, aut pecoris, aut vestis, ut colono, iniungit; et servus
hactenus paret.” Germ. xxv. This amounts to no more than the
description of a certain class of our own copyholders, of the Slavonic
holder in Bohemia or Galicia, and the peasant on a _noble session_ in
Hungary.

Footnote 337:

This is the obvious meaning of the passage, which has however been
disputed, in defiance of sense and Latin: see Walther’s edition, vol.
iv. 58. The general rule in the text is true, but where there were
slaves they were used in the house, under the superintendence of the
family. This of course applies more strongly to later historical
periods, when the slaves (domestics) had become much more numerous,
and the ladies much less domestic.

Footnote 338:

Deut. Rechtsalt. p. 305.

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Without confining ourselves to the definition in the law of Henry the First, we may distribute the different kinds of slaves into classes, according to the different grounds of slavery[339]. Thus they are serfs _casu_ or _natura_, and the serfs _casu_ comprise serfs by the fortune of war, by marriage, by settlement, by voluntary surrender, by crime, by superior legal power, and by illegal power or injustice. The remaining class are serfs _natura_, or by birth.

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Footnote 339:

“Servi alii natura, alii facto, et alii empcione, et alii redempcione,
alii sua vel alterius dacione servi, et si quae sunt aliae species
huiusmodi, quas tamen omnes volumus sub uno servitutis membro
constitui, quem casum ponimus appellari, ut ita dictum sit, servi alii
casu, alii genitura.” Leg. Hen. I. lxxvi. § 3.

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The serfs by fortune of war were those who were not left under the public law to enjoy a portion of their ancient freedom and possessions, but were actually reduced to a state of prædial or menial servitude by their captors, and either reserved for household drudgery or sold, at their arbitrary will. The Cassandra and Andromache of Grecian story stand here side by side with our own German Gudrún. This part of the subject has received sufficient illustration from the tale of the thane Imma, already quoted from Beda.

The serf by marriage was the free man or free woman who contracted that bond with a slave: in this case the free party sank to the condition of the unfree, among some at least of the German races. The Salic law is explicit upon this point both with respect to man and woman[340]: among the Ripuarian Franks it was enacted thus[341]: “If a free Ripuarian woman hath followed a Ripuarian serf, let the king or the count offer unto her a sword and a spindle: if she accept the sword, let her therewith slay the serf; if the spindle, let her abide with him in servitude.” In this case the Burgundian law[342] commanded both parties to be slain; but if the relatives of the woman would not put her to death, she became a serf of the king. Saxo Grammaticus cites a similar law for Denmark[343]. There is no evidence of the Anglosaxon practice in this respect, but it appears unlikely that the case should be of common occurrence. Probably purchase and emancipation always preceded such marriages, and the law of Henry the First makes no mention of this among the grounds of slavery[344].

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Footnote 340:

“Si quis ingenuus ancillam alienam sibi in coniugium sociaverit, ipse
cum ea in servitutem inclinetur.” Lex Sal. xiv. 11. “Si ingenua femina
aliquemcunque de illis (i. e. raptoribus non ingenuis) sua voluntate
secuta fuerit, ingenuitatem suam perdat.” Lex Sal. xiv. 7.

Footnote 341:

Lex Rip. lviii. 18.

Footnote 342:

Lex Burg. xxxv. 2, 3.

Footnote 343:

Hist. Dan. lib. v. p. 85.

Footnote 344:

The following proverbs are founded upon this legal custom:—

“Trittst du meine henne, so wirst du mein hahn.”
“Die unfreie hand zieht die freie nach sich.”
“En formariage le pire emporte le bon.”

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The serf by settlement is he who has taken up his abode in a district exclusively inhabited by the unfree; and to this refers the German expression “Die luft macht eigen,” i. e. the air makes the serf. There is no distinct Anglosaxon provision on the subject, but perhaps we may include in this class some at least of those who taking refuge on a lord’s land, and among his sócmen, without any absolute and formal surrender of their freedom, did actually become his serfs and liable to the services due to him from all their neighbours[345]. The generality however of such cases fall under the next following head, viz.—

The serfs by surrender, the _sua datione servus_ of Henry’s law, the _servus dedititius_, and giafþræl of the Norse law. Among these Grimm numbers the serfs whose voluntary submission so much surprised the Roman philosopher. Even the law of the Germans, so generally favourable to liberty, contemplates and provides for the case of such a voluntary servitude[346]. This might arise in various ways. For example, a time of severe scarcity, such as are only too often recorded in our ancient annals, unquestionably drove even the free to the cruel alternative of either starvation or servitude: “Subdebant se pauperes servitio, ut quantulumcunque de alimento porrigerent,” says Gregory of Tours[347]; Gildas tells us a similar tale of the Britons[348]; and even as late as the Norman conquest we find Geatflǽd, a lady, directing by her will the manumission of all those who had bent their heads in the evil days for food[349]. Another was, no doubt, debt, incurred either through poverty or crime; and when the days of fierce and cruel warfare had passed away, this must have been the most fertile source of servitude. I have not found among the Anglosaxon remains any example of slavery voluntarily incurred by the insolvent debtor, but the whole course of analogy is in favour of its existence, and Marculf supplies us with the formulary by which, among the Franks, the debtor surrendered his freedom to the creditor. It may be presumed that this servitude had a term, and that a certain period of servile labour was considered equivalent to the debt. The case of crime was undoubtedly a very common one, especially as those whose necessities were the most likely to bring them in collision with the law were those also who were least able to fulfil its requirements, by payment of the fines attached to their offences. The criminal whose own means were insufficient, and whose relatives or lord would not assist him to make up the legal fine he had incurred, was either compelled to surrender himself to the plaintiff, or to some third party who paid the sum for him, by agreement with the aggrieved party. This was technically called þingian[350], and such a serf was called a witeþeów, convict, or criminal slave. These are the _servi redemptione_ of Henry the First.

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Footnote 345:

Such may also have been malefactors, who sought an asylum in church or
other privileged lands, and who sometimes formed a very considerable
number of dependants or retainers: thus, “Contraxit universam
iuventutem Houlandiae [Holland in Lincolnshire] strenuissimus comes
Algarus, ... unà cum cohorte Croylandiae monasterii, videlicet CC
bellatoribus robustissimis, eo quod maxima pars illorum de fugitivis
fuerat.” Hist. Ingulf, p. 865.

Footnote 346:

“Si liber homo spontanea voluntate vel forte necessitate coactus,
nobili, seu libero, seu etiam lito, in personam et in servitium liti
se subdiderit.” Lex Fres. xi. 1. “Ut nullum liberum liceat inservire
... quamvis pauper sit, tamen libertatem suam non perdat nec
hereditatem suam, nisi ex spontanea voluntate se alicui tradere
voluerit, hoc potestatem habeat faciendi.” Lex Bajuv. vi. 3. The
Anglosaxon law gave this power of voluntary surrender to a boy of
thirteen. See Theod. Poenit. xxix. Thorpe, ii. 19.

Footnote 347:

Gregor. Turon. vii. 45.

Footnote 348:

“Interea fames dira ac famosissima vagis ac nutabundis haeret, quae
multos eorum cruentis compellit praedonibus sine dilatione victas dare
manus, ut pauxillum ad refocillandam animam cibi caperent.” Hist.
Brit. cap. xvii.

Footnote 349:

“Ealle ða men ðe heónon heora heáfod for hyra mete on ðám yflum
dagum.” Cod. Dip. No. 925. The instance is, I believe, a solitary one
in our records, but the cases must have been numerous.

Footnote 350:

“And eác heó hafað gefreód ða men ða heó þingede æt Cwæspatrike;” And
she hath also freed the men whom she interceded for with Cospatrick.
Cod. Dip. No. 925. Marculf gives the Frankish formulary, as follows;
it is the case of one who has been redeemed from capital punishment:
“Et ego de rebus meis, unde vestra beneficia rependere debuissem, non
habeo; ideo pro hoc statum ingenuitatis meae vobis visus sum
obnoxiasse, ita ut ab hac die de vestro servitio penitus non
discedam.” Form. Marculf. ii. 28.

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Serfs by force or power are not those comprised in the first class of these divisions, or serfs by the fortune of war: these of course have lost their freedom through superior force. But the class under consideration are such as have been reduced to servitude by the legal act of those who had a right to dispose of them; as, for instance, a son or daughter by the act of the father[351]. It is painful to record a fact so abhorrent to our Christian feelings, but there cannot be the least doubt that this right was both admitted and acted upon. The father, upon whose will it literally depended whether his child should live or not, had a right at a subsequent period to decide whether the lot of that child should be freedom or bondage[352]. Illegitimate children, the offspring of illicit intercourse with his wyln or þeówen, may have formed the majority of those thus disposed of by a father: but in times of scarcity, it is to be feared that even the issue of legitimate marriage was not always spared[353]. The Frisians, when oppressed by the amount of Roman tribute, sold their wives and children: “Ac primo boves ipsos, mox agros, postremo corpora coniugum aut liberorum servitio tradebant[354]:” this is however an exceptional case, and the sale of wives and children appears only to have been resorted to as a last resource. But the very restriction to the exercise of this right, within particular limits of time—which we may believe the merciful intervention of the church to have brought about—speaks only too plainly for its existence in England. Even as late as the end of the seventh century, and after Christianity had been established for nearly one hundred years in this country, we find the following very distinct and clear recognitions of the right, in books of discipline compiled by two several archbishops for the guidance of their respective clergy. In the Poenitential of Theodore, archbishop of Canterbury, occurs this passage: “Pater filium suum septem annorum, necessitate compulsus, potestatem habet tradere in servitium; deinde, sine voluntate filii, licentiam tradendi non habet[355].” In the somewhat later Confessionale of Ecgberht, archbishop of York, we find: “Pater potest filium suum, magna necessitate compulsus, in servitutem tradere, usque ad septimum annum; deinde, sine voluntate filii, eum tradere non potest[356].” It is however very remarkable that in the Poenitential of the same Ecgberht the sale of a child or near relative is put down as an offence punishable by excommunication[357]. These are the _servi alterius datione_ of Henry the First.

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Footnote 351:

The wife, by the act of the husband, I think very doubtful, in point
of right. In point of fact this case may have occurred much more
frequently than our records vouch.

Footnote 352:

The illegitimate offspring of his own wife, a husband was not likely
to spare. An old German tale records this fact. Her lord returning
from a long absence and finding a child which could not be his own in
the house, was told by the faithless mother, that when walking in the
fields a flake of snow had fallen into her bosom and impregnated her.
Afterwards the husband took the child to Italy and sold him there,
excusing himself to the mother by the assertion that the heat of the
sun had melted the snow-child:—

“De nive conceptum quem mater adultera finxit;
Hunc dominus vendens liquefactum sole retulit.”

Footnote 353:

Lingard (A. S. Church, i. 45) accuses the pagan Saxons of selling
their children into foreign slavery. I am not sure that this is not
asserted too strongly by this estimable author, who appears unjustly
to depreciate the Saxons, in order to enhance the merit of their
convertors. I admit the probability of the fact, only because the
right is a direct corollary from the paternal power, and because
Archbishops Theodore and Ecgberht (the first a Roman missionary)
recognize it; but I cannot suppose its exercise to have been common.

Footnote 354:

Tac. Annal. iv. 72.

Footnote 355:

Theodori Arch. Cant., Liber Poenitentialis, xxviii. Thorpe, A. S.
Laws, ii. 19.

Footnote 356:

Confessionale Ecgberhti Arch. Ebor. xxvii. Thorpe, ii. 153.

Footnote 357:

The only way of getting rid of this strange contradiction is, either
to assume the passage to be a later interpolation, which there is no
ground for, save the contradiction itself; or to take the passage in
connection with Theodor. Poen. xlii. § 3, 4, 5, which refer to sale of
a Christian among Jews or Heathens, and generally to fraudulent or
illegal sale. But then, one cannot understand why the words “infantem
suum proprium, vel proximum suum cognatum” should have been introduced
by Ecgberht, though omitted by Theodore. Perhaps we may reconcile the
passages, by assuming Ecgberht to refer to an illegal sale, viz. when
the child was above seven years old, but still in the same category as
those for whose safety Theodore provides by the same ecclesiastical
penalty. The child or very near relation were precisely those who were
most liable to be in “alteram regionem seducti, furati,” etc.

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The next head includes the serfs by reason of crime. The distinction between these and the class of criminals who became slaves through compact or redemption, is that in their case servitude was the direct punishment of their offence, and not merely an indirect and mediate consequence. It seems to me at least that this sense strictly lies at the foundation of two laws of Eádweard, Ælfred’s son; of these the former says[358], “If any one through conviction of theft forfeit his freedom, and deliver himself up, and his kindred forsake him, and he know not who shall make bót for him; let him then be worthy of the þeówwork which thereunto appertained; and let the wer abate from the kindred.” Again, “If a freeman work upon a festival day, let him lose his freedom, or pay the wíte or lahslite[359].” This alternative is an alleviation of the strict law: but as forfeiture undoubtedly followed upon theft and other offences, the thief could not expect to make bót for himself, and was always exposed to the danger of incurring slavery, should another make it for him. It is however possible that his relations may have interfered to save him, without the reducing him to a _servus dedititius_; or even if he were so reduced, he became the serf of him that engaged (þingode) for him; whereas, if not rescued at all, he must have been a fiscal serf, in the hands of the crown or the geréfa, its officer. There exists therefore a perceptible difference between the wíteþeów whom the law made so, (even though it permitted a merciful alternative,) and the wíteþeów whose punishment would have been a mulct which exceeded his means. The law of other German tribes numbers slavery among its punishments without any reservation at all: thus among the Visigoths, he that assisted in the escape of a serf, and neither restored him nor his worth to the owner, was to become a slave in his place[360]. By the Bavarian law, he that could not pay a wergyld due from him, was to be enslaved together with his wife and children[361]. Grimm[362] cites the following case: “Richilda, quae libertatem suam fornicando polluit, amisit ... filiae illorum liberae permaneant, ... nisi forte adulterio vel fornicatione polluantur.” It is true that the Anglosaxon laws do not give us any enactment of a corresponding nature: nevertheless I entertain no doubt that incontinence was a ground of slavery in the case both of man and woman. Toward the end of the ninth century, Denewulf, bishop of Winchester, leased the lands of Alresford to a relative of his own, on condition of a yearly rent: “Is equidem insipiens, adulterans, stuprum, propriam religiose pactatam abominans, scortum diligens, libidinose commisit. Quo reatu, omni substantia peculiali recte privatus est, et praefatum rus ab eo abstractum rex huius patriae suae ditioni avidus devenire iniuste optavit[363].” However unjust the canons of Winchester might think it, it is clear that the Witena-gemót did not; for the bishop was obliged to pay 120 mancusses in gold to the king, to have back his own land. Again in the year 1002, we hear of a lady forfeiting her lands to the king, by reason of incontinence[364]. The consequences of this destitution can hardly have been other than servitude; and it may be at once admitted that where there were no lands to forfeit, servitude was the recognized punishment of the offence. Theodore[365] when apportioning the penance due to it, says, “Si intra viginti annos puella et adolescens peccaverint, i annum, et in secundo iii quadragesimas ac legitimas ferias. Si propter hoc peccatum servitio humano addicti sunt, iii quadragesimas.” Again, “Maritus si ipse seipsum in furto aut fornicatione servum facit, vel quocunque peccato[366],” etc.

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Footnote 358:

Leg. Eádw. § 9.

Footnote 359:

Eád. and Guð. § 7.

Footnote 360:

Leg. Visig. ix. § 1, 2.

Footnote 361:

Leg. Bajuv. i. § 11.

Footnote 362:

D. Rechtsalt. p. 329.

Footnote 363:

Cod. Dip. No. 601.

Footnote 364:

Ibid. No. 1296.

Footnote 365:

Lib. Poenit. xvi. § 3. Thorpe, ii. 9.

Footnote 366:

Thorpe, ii. 9, note 4.

The last division of the _servi casu_ comprises those who have been reduced to slavery by violence or fraud, in short illegally. Illegitimate children, poor relations, unfriended strangers, young persons without power of self-defence, may thus have been seduced or forced into a servile condition of life, escape from which was always difficult, inasmuch as there is necessarily a _prima facie_ case against the serf, and he can have no standing in the court composed only of the free. To this head seem referable the passages I have already alluded to in Theodore’s Poenitential[367], and which I will now cite at length: “Si quis Christianus alterum Christianum suaserit, ac in alteram regionem seduxerit, ibique eum vendiderit pro proprio servo, ille non est dignus inter Christianos requiem habere, donec redimat eum et reducat ad proprium locum.” And again: “Si quis Christianus alterum Christianum vagantem reppererit, eumque furatus fuerit ac vendiderit, non debet habere inter Christianos requiem, donec redimat eum, et pro illo furto septem annos poeniteat[368].”

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Footnote 367:

_Supra_, p. 200, note 2.

Footnote 368:

Lib. Poenit. Theod. xlii. § 4. 5. See also xxiii. § 13.

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The other great division includes all the _servi natura_, _nativi_, or serfs by reason of unfree birth; and as these are necessarily the children either of parents who are both unfree, or (under particular circumstances) of one unfree parent, it follows that their hereditary condition may arise from any one of the conditions heretofore under examination. All the legitimate children of two serfs are themselves irrevocably serfs[369]: but some distinctions arise where the parents are of unequal condition, as where the mother is free, the father unfree, and _vice versa_. In this respect the law was very different among the different tribes: the Swedish law declared in favour of liberty[370], the German generally the other way[371]. The Sachsenspiegel decides that the children follow the father’s right[372], and similarly the law of Henry the First[373] has, “Si quis de servo patre natus sit et matre libera, pro servo reddatur occisus;” and again, “Si pater sit liber et mater ancilla, pro libero reddatur occisus;” on the general principle that “semper a patre non a matre generacionis ordo texitur,” which Fortescue confirms, saying[374], “Lex Angliae nunquam matris, sed semper patris conditionem imitari partum iudicat, ut ex libera etiam ex nativa non nisi liberum liber generet, et non nisi servum in matrimonio procreare potest servus.” Fleta’s argument rests upon the same doctrine[375]. Glanville however appears to adopt the contrary view[376], which agrees with the maxim of the civil law, “Partus sequitur ventrem.” To the English principle I am bound to give my adhesion, inasmuch as the natural and the original social law can recognize none but the father, either in the generation, or in the subsequent rule, of the family: whatever alleviation the practices of chivalry, the worship of the Virgin mother, and the Christian doctrine of the equality of man and woman before God, may have introduced, the original feeling is on the father’s side, and the foundations of our law are based upon the all-sufficiency of his right. A woman is in the mund or keeping of a man; society exists for men only, that is, for women merely as far as they are represented by a man.

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Footnote 369:

Theod. Poen. xvi. § 33. Ecgb. Poen. xxv.

Footnote 370:

Deut. Rechtsalt. p. 324.

Footnote 371:

Ibid. p. 324.

Footnote 372:

Sachs. iii. 73.

Footnote 373:

Leg. Hen. I. lxxvii. § 1, 2.

Footnote 374:

Commend. cap. xlii.

Footnote 375:

Lib. i. cap. 3. § 2.

Footnote 376:

“Sunt autem nativi a prima nativitate sua; quemadmodum si quis fuerit
procreatus ex nativo et nativa, ille quidem nativus nascitur. _Idem
est si ex patre libero et matre nativa._ Sed si ex matre libera et
patre nativo, idem est dicendum quantum ad status integritatem.” Lib.
v. cap. 6. But the passage in italic is wanting in some manuscripts,
and may possibly have been the gloss or addition of a civilian.

That this original right was interfered with by the law of property is not denied. But here different cases are to be considered. First, whether the serf or _nativa_ is the property of the party who unites with him or her. Secondly whether the free party unite with some other owner’s serf or neif; next, whether the issue are born in wedlock or not; and lastly how far the public law and right is involved in the question of freedom and servitude. The last consideration in fact involves the first, because, under the first, except in the case of hardly intelligible neglect, marriage could never take place between two unequal parties at all: emancipation must have preceded the ceremony; while the civil law would of course rule that the ceremony itself, taking place by consent, was an act of emancipation not to be gainsaid. It is therefore with regard to third parties only that a question can arise[377]. There is no proof that such a question ever did arise among the Anglosaxons, or that it was thought needful to provide for it by law: and the earlier evidences with which this book has especially to do are either entirely silent, or so general in their expressions that we cannot decide from them upon a particular case. In fact the whole argument is reduced to the second head, viz. where one parent is the property of a third party, and where the child is born in lawful wedlock; for a child not so born is not subject to any law which binds the parents, is _nullius filius_, and can as little be injured as advantaged by the law.

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Footnote 377:

Of course (except under circumstances which the Christian clergy, and
probably even the heathen priesthood,—and if neither of these, yet the
universal human feeling—would condemn,) the issue of such marriage
could not have been treated as unfree, during the life of the father.
But a question might arise after death, and on subsequent inheritance
by third parties. And cases might occur where the public right
rendered it necessary to take care that the unfree should not enjoy
the advantages of freedom.

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In the strict Anglosaxon law there is no definite decision on these points: the codes of other German races, at the oldest period, are equally silent. In later times indeed we have determinations; but these, as we have observed, are contradictory. Perhaps we may take the doctrine of the Sachsenspiegel, coinciding as it does with the opinion of many, probably a majority, of our own law-sages, as the original one, especially as it is the only one in accordance with other details of family life, and with the supreme law of nature itself which leaves to the father the decision as to the life or death of the child, as to its liberty or slavery. In this sense then I agree with Sir John Fortescue and Sir Edward Coke[378]. It is to be remembered that we are dealing now with the condition of the offspring, not of the parent: the uncertainty that prevails with respect to the latter, in the Anglosaxon law, and the contradictory enactments of other German codes have been already noticed.

But all that has been said applies solely to the case of children born in lawful wedlock; and almost all the apparent contradictions which have been noticed in our own law, arise from a want of clear distinction on this point. The child of a free father and unfree mother, if the parents were not married, remained to the lord of the neif, according to our expressive proverb, “Mine is the calf that is born of my cow[379].” In Fleta’s words[380] the distinction is drawn most clearly, and they may therefore stand here in place of my own: “Servi autem aut nascuntur aut fiunt; nascuntur quidem ex nativo et nativa solutis vel copulatis, et eius erit servus in cuius potestate nasci contigerit[381]; dum tamen de soluta nativa, domini loci, quia sequitur conditionem matris, a quocunque fuerit genitus, libero vel nativo[382]. Si autem copulati fuerint et genitus fuerit partus a libero, licet a nativa, partus erit liber; et si de servo et libera in matrimonio, servus erit.” Thus, here again the offspring follows the father, as soon as there is a marriage to determine that there is an offspring at all, in law; but if there be no marriage, the chattel thrown into the world, like any other waif or stray belongs _domino loci_; it has a value, can be worked or sold; it is treasure-trove of a sort, and as it belongs to nobody else, falls to the lord, as a compensation probably for the loss of his neif’s services during pregnancy and the nonage of the child[383].

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Footnote 378:

Co. Litt. § 187, 188.

Footnote 379:

Take an instance, though with a wider application, from Shakspeare,
King John, act i. sc. 2.

Footnote 380:

Lib. i. cap. 3. § 2.

Footnote 381:

That is, if the serfs of two different lords, then the child to follow
the mother.

Footnote 382:

In the event of there being no marriage. The case of a marriage is
very different, and provided for in the next sentence.

Footnote 383:

Mr. Allen in his valuable notes upon the law of Henry the First
(published by Thorpe in his Anglosaxon Laws, i. 609-631) has some
remarks upon the whole subject, as considered by our Norman jurists.
His conclusions coincide generally with mine, and he says (p. 628),
“The Mirror [Sachsenspiegel] makes the marriage of the parents an
essential condition to the liberty of the offspring,” etc.

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Whatever the origin of serfage may have been, it can hardly be questioned that the lot of the serf was a hard one; and this perhaps not so much from the amount of labour required of him, as from the total irresponsibility of the master, in the eye of the law, as to all dealings between himself and his þeów. The Christian clergy indeed did all they could to mitigate its hardships, but when has even Christianity itself been triumphant over the selfishness and the passions of the mass of men! The early pagan Germans, though in general they treated their serfs well, yet sometimes slew them, under the influence of unbridled passion: “Verberare servum ac vinculis et opere coercere rarum. Occidere solent, non disciplina et severitate, sed impetu et ira, ut inimicum, nisi quod impune est[384].” The church affixed a special penance to the manslaughter of a woman by her mistress, _impetu et ira_,—an event which probably was not unusual, considering the power of a lord over his þeówen or female slave,—and generally, a penance for the slaughter of a serf by his lord without judicial authority[385].

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Footnote 384:

Tac. Germ. xxv.

Footnote 385:

“Si faemina, furore zeli accensa, flagellis verberaverit ancillam
suam, ita ut infra diem tertium animam cruciatu effundat, et quod
incertum sit, voluntate an casu occident; si voluntate, vii annos; si
casu, per quinquennii tempora, ac legitima poenitentia, a communione
placuit abstinere.” Poen. Theod. xxi. § 13. “Si quis servum proprium,
sine conscientia iudicis, occiderit, excommunicatione vel poenitentia
biennii reatum sanguinis emundabit.” Ibid. § 12. Even as late as the
seventeenth century in France, it appears that it was usual to flog
the valets, pages and maids, in noble houses. Tallemant des Réaux
mentions a riot which arose in Paris from a woman’s being whipped to
death by her mistress, in August 1651. See his Historiettes, viii. 80;
x. 255, etc.

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In contemplation of law, in fact, the slave is the absolute property of his lord, a chattel to be disposed of at the lord’s pleasure, and having a value only for the benefit of the lord, or of some public authority in his place. The serf cannot represent himself or others: his interests must be guarded by others, for he himself has no standing in any public court. He is not in any friðborh, or association for mutual guarantee, for he has nothing of his own to defend, and no power to defend what another has. If he be slain by a stranger, his lord claims the damages, and not his children: if the lord himself slay him, it is but the loss of so much value,—a horse, an ox, gone—more or less. Out of his death no feud can arise, for the relatives who allowed him to fall into, or remain in slavery, have renounced the family bond, and forfeited both the wergyld and the mund. If he be guilty of wrong, he cannot make compensation in money or in chattels; for he can have no property of his own save his skin: thus his skin must pay for him[386], and the lash be his bitter portion. He cannot defend himself by his own oath or the oaths of friends and compurgators, but, if accused, must submit to the severe, uncertain and perilous test of the ordeal. And if, when thus hunted down, he be found guilty, severe and ignominious punishment,—amounting, in a case of theft, to death by flogging for men, by burning for women,—is reserved for him[387]. Naturally and originally there can be no limitation in the amount or the character of labour imposed upon him, and no stipulation for reciprocal advantage in the form of protection, food or shelter. Among the Saxons the wíteþeów at least appears to have been bound to the soil, _adscriptus glebae_[388], conveyed with it under the comprehensive phrase “mid mete and mid mannum:” though in some few cases we can trace a power, vested perhaps only in certain public authorities, of transferring the slave from one estate to another[389]. Last, but most fearful of all, the taint of blood descended to his offspring, and the innocent progeny, to the remotest generations, were born to the same miserable fate as bowed down the guilty or unfortunate parent.

Footnote 386:

The compensation for a flogging was called hídgeld.

Footnote 387:

Leg. Æðelst. iii. § 6. Thorpe, i. 219.

Footnote 388:

Cod. Dipl. Nos. 311, 1079.

Footnote 389:

Ibid. No. 311. The serfs mentioned in this document were at first
attached to the royal vill of Bensington; but were now transferred to
the land of the church at Radnor, with their offspring, and their
posterity for ever.