§ 2. The Serfs.

The existence of some 25,000 serfs is recorded. In the thirteenth century servus and villanus are, at least among lawyers, equivalent words. The only unfree man is the ‘serf-villein’ and the lawyers are trying to subject him to the curious principle that he is the lord’s chattel but a free man in relation to all but his lord[61]. It is far otherwise in Domesday Book. In entry after entry and county after county the servi are kept well apart from the villani, bordarii, cotarii. Often they are mentioned in quite another context to that in which the villani are enumerated. As an instance we may take a manor in Surrey[62]:—‘In demesne there are 5 teams and there are 25 villani and 6 bordarii with 14 teams. There is one mill of 2 shillings and one fishery and one church and 4 acres of meadow, and wood for 150 pannage pigs, and 2 stone-quarries of 2 shillings and 2 nests of hawks in the wood and 10 servi.’ Often enough the servi are placed between two other sources of wealth, the church and the mill. In some counties they seem to take precedence over the villani; the common formula is ‘In dominio sunt a carucae et b servi et c villani et d bordarii cum e carucis.’ But this is delusive; the formula is bringing the servi into connexion with the demesne teams and separating them from the teams of the tenants. We must render it thus—‘On the demesne there are a teams and b servi; and there are c villani and d bordarii with e teams.’ Still we seem to see a gently graduated scale of social classes, villani, bordarii, cotarii, servi, and while the jurors of one county will arrange them in one fashion, the jurors of another county may adopt a different scheme. Thus in their classification of mankind the jurors will sometimes lay great stress on the possession of plough oxen. In Hertfordshire we read:—‘There are 6 teams in demesne and 41 villani and 17 bordarii have 20 teams ... there are 22 cotarii and 12 servi[63].’—‘The priest, 13 villani and 4 bordarii have 6 teams ... there are two cotarii and 4 servi[64].’—‘The priest and 24 villani have 13 teams ... there are 12 bordarii, 16 cotarii and 11 servi[65].’ A division is in this instance made between the people who have oxen and the people who have none; villani have oxen, cotarii and servi have none; sometimes the bordarii stand above this line, sometimes below it.

Legal position of the serf.

Of the legal position of the servus Domesday Book tells us little or nothing; but earlier and later documents oblige us to think of him as a slave, one who in the main has no legal rights. He is the theów of the Anglo-Saxon dooms, the servus of the ecclesiastical canons. But though we do right in calling him a slave, still we might well be mistaken were we to think of the line which divides him from other men as being as sharp as the line which a mature jurisprudence will draw between thing and person. We may well doubt whether this principle—‘The slave is a thing, not a person’—can be fully understood by a grossly barbarous age. It implies the idea of a person, and in the world of sense we find not persons but men.

Degrees of serfdom.

Thus degrees of servility are possible. A class may stand, as it were, half-way between the class of slaves and the class of free men. The Kentish law of the seventh century as it appears in the dooms of Æthelbert[66], like many of its continental sisters, knows a class of men who perhaps are not free men and yet are not slaves; it knows the læt as well as the theów. From what race the Kentish læt has sprung, and how, when it comes to details, the law will treat him—these are obscure questions, and the latter of them can not be answered unless we apply to him what is written about the laeti, liti and lidi of the continent. He is thus far a person that he has a small wergild but possibly he is bound to the soil. Only in Æthelbert’s dooms do we read of him. From later days, until Domesday Book breaks the silence, we do not obtain any definite evidence of the existence of any class of men who are not slaves but none the less are tied to the land. Of men who are bound to do heavy labour services for their lords we do hear, but we do not hear that if they run away they can be captured and brought back. As we shall see by and by, Domesday Book bears witness to the existence of a class of buri, burs, coliberti, who seem to be distinctly superior to the servi, but distinctly inferior to the villeins, bordiers and cottiers. It is by no means impossible that they, without being slaves, are in a very proper and intelligible sense unfree men, that they have civil rights which they can assert in courts of law, but that they are tied to the soil. The gulf between the seventh and the eleventh centuries is too wide to allow of our connecting them with the læt of Æthelbert’s laws, but still our documents are not exhaustive enough to justify us in denying that all along there has been a class (though it can hardly have been a large class) of men who could not quit their tenements and yet were no slaves. As we shall see hereafter, liberty was in certain contexts reckoned a matter of degree; even the villanus, even the sochemannus was not for every purpose liber homo. When this is so, the theów or servus is like to appear as the unfreest of persons rather than as no person but a thing.

Prædial element in serfage.

In the second place, we may guess that from a remote time there has been in the condition of the theów a certain element of praediality. The slaves have not been worked in gangs nor housed in barracks[67]. The servus has often been a servus casatus, he has had a cottage or even a manse and yardland which de facto he might call his own. There is here no legal limitation of his master’s power. Some slave trade there has been; but on the whole it seems probable that the theów has been usually treated as annexed to a tenement. The duties exacted of him from year to year have remained constant. The consequence is that a free man in return for a plot of land may well agree to do all that a theów usually does and see in this no descent into slavery. Thus the slave gets a chance of acquiring what will be as a matter of fact a peculium. In the seventh century the church tried to turn this matter of fact into matter of law. ‘Non licet homini,’ says Theodore’s Penitential, ‘a servo tollere pecuniam, quam ipse labore suo adquesierit[68].’ We have no reason for thinking that this effort was very strenuous or very successful, or that the law of the eleventh century allowed the servus any proprietary rights; and yet he might often be the occupier of land and of chattels with which, so long as he did his customary services, his lord would seldom meddle.

The serf in criminal law.

In the third place, we may believe that for some time past police law and punitive law have been doing something to conceal, if not to obliterate, the line which separates the slave from other men. A mature jurisprudence may be able to hold fast the fundamental principle that a slave is not a person but a thing, while at the same time it both limits the master’s power of abusing his human chattel and guards against those dangers which may arise from the existence of things which have wills, and sometimes bad wills, of their own. But an immature jurisprudence is incapable of this exploit. It begins to play fast and loose with its elementary notions. It begins to punish the criminous slave without being quite certain as to how far it is punishing him and how far it is punishing his master. Confusion is easy, for if the slave be punished by death or mutilation, his master will suffer, and a pecuniary mulct exacted from the slave is exacted from his master. Learned writers have come to the most opposite opinions as to the extent to which the Anglo-Saxon dooms by their distribution of penalties recognize the personality of the theów. But this is not all. For a long time past the law has had before it the difficult problem of dealing with crimes and delicts committed by poor and economically dependent free men, men who have no land of their own, who are here to-day and gone to-morrow, ‘men from whom no right can be had.’ It has been endeavouring to make the lords answerable to a certain extent for the misdeeds of their free retainers. If a slave is charged with a crime his master is bound to produce him in court. But the law requires that the lord shall in very similar fashion produce his free ‘loaf eater,’ his mainpast, nay, it has been endeavouring to enforce the rule that every free man who has no land of his own shall have a lord bound to produce him when he is accused. Also it has been fostering the growth of private justice. The lord’s duty of producing his men, bond and free, has been becoming the duty of holding a court in which his men, free and bond, will answer for themselves. How far this process had gone in the days of the Confessor is a question to which we shall return[69].

Serf and villein.

For all this however, we may say with certainty that in the eleventh century the servi were marked off from all other men by definite legal lines. What is more, we may say that every man who was not a theów was in some definite legal sense a free man. This sharp contrast is put before us by the laws of Cnut as well as by those of his predecessors. If a freeman works on a holiday, he pays for it with his healsfang; if a theówman does the like, he pays for it with his hide or his hide-geld[70]. Equally sharp is the same distinction in the Leges Henrici, and this too in passages which, so far as we know, are not borrowed from Anglo-Saxon documents. For many purposes ‘aut servus aut liber homo’ is a perfect dilemma. There is no confusion whatever between the villani and the servi. The villani are ‘viles et inopes personae’ but clearly enough they are liberi homines. So also in the Quadripartitus, the Latin translation of the ancient dooms made in Henry I.’s reign, there is no confusion about this matter; the theówman becomes a servus, while villanus is the equivalent for ceorl. The Norman writers still tell how according to the old law of the English the villanus might become a thegn if he acquired five hides of land[71]; at times they will put before us villani and thaini or even villani and barones as an exhaustive classification of free men[72].

The serf of the Leges.

Let us learn what may be learnt of the servus from theLeges Henrici. Every man is either a liber homo or a servus[73]. Free men are either two-hundred-men or twelve-hundred-men; perhaps we ought to add that there is also a class of six-hundred-men[74]. A serf becomes such either by birth or by some event, such as a sale into slavery, that happens in his lifetime[75]. Servile blood is transmitted from father to child; some lords hold that it is also transmitted by mother to child[76]. If a slave is to be freed this should be done publicly, in court, or church or market, and lance and helmet or other the arms of free men should be given him, while he should give his lord thirty pence, that is the price of his skin, as a sign that he is henceforth ‘worthy of his hide.’ On the other hand, when a free man falls into slavery then also there should be a public ceremony. He should put his head between his lord’s hands and should receive as the arms of slavery some bill-hook or the like[77]. Public ceremonies are requisite, for the state is endangered by the uncertain condition of accused criminals; the lords will assert at one moment that their men are free and at the next moment that these same men are slaves[78]. The descent of a free man into slavery is treated as no uncommon event; the slave may well have free kinsfolk[79]. But, to come to the fundamental rule, the villanus, the meanest of free men, is a two-hundred-man, that is to say, if he be slain the very substantial wergild of 200 Saxon shillings or £4 must be paid to his kinsfolk[80], while a man-bót of 30 shillings is paid to his lord[81]. But if a servus be slain his kinsfolk receive the comparatively trifling sum of 40 pence while the lord gets the man-bót of 20 shillings[82]. That the serf’s kinsfolk should receive a small sum need not surprise us. Germanic law has never found it easy to carry the principle that the slave is a chattel to extreme conclusions; but the payment seems trifling and half contemptuous; at any rate the life of the villein is worth the life of twenty-four serfs[83]. Then again, it is by no means certain that a lord can not kill his serf with impunity. ‘If,’ says our text, ‘a man slay his own serf, his is the sin and his is the loss’:—we may interpret this to mean that he has sinned but sinned against himself[84]. Then again, for the evil deeds of his slave the master is in some degree responsible. If my slave be guilty of a petty theft not worthy of death, I am bound to make restitution; if the crime be a capital one and he be taken handhaving, then he must ‘die like a free man[85].’ If my slave be guilty of homicide, my duty is to set him free and hand him over to the kindred of the slain, but apparently I may purchase his life by a sum of 40 shillings, a sum much less than the wer of the slain man[86]. We must not be too hard on the owners of delinquent slaves. There are cases, for example, in which, several slaves having committed a crime, one of them chosen by lot must suffer for the sins of all[87]. Our author is borrowing from the laws of several different centuries and does not arrive at any neat result; nor must we wonder at this, for the problems presented to jurisprudence by the crimes and delicts of slaves are very intricate. Then again, we have the rule that if free men and serfs join in a crime, the whole guilt is to be attributed to the free: he who joins with a slave in a theft has no companion[88]. On the whole, though the slave is likely to have as a matter of fact a peculium of his own, a peculium out of which he may be able to pay for his offences and even perhaps to purchase his liberty[89], the servus of our Leges seems to be in the main a rightless being. We look in vain for any trace of that idea of the relativity of servitude which becomes the core of Bracton’s doctrine[90]. At the same time we observe that many, perhaps most, of the rules which mark the slavish condition of the serf are ancient rules and rules that are becoming obsolete. In the twelfth century the old system of wer and bót is already vanishing, though an antiquarian lawyer may yet try to revivify it. When it disappears altogether before the new law, which holds every grave crime to be a felony, and punishes almost every felony with death[91], many grand differences between the villein and the serf will have perished. The gallows is a great leveller.

Return to the servus of Domesday.

If now we recur to the days of the Conquest, we cannot doubt that the law knew a definite class of slaves, and marked them off by many distinctions from the villani and cotarii, and even from the coliberti. Sums that seem high were being paid for men whose freedom was being purchased[92]. At Lewes the toll paid for the sale of an ox was a halfpenny; on the sale of a man it was fourpence[93]. In later documents we may sometimes see a distinction well drawn. Thus in the Black Book of Peterborough, compiled in 1127 or thereabouts, we may read how on one of his manors the abbot has eight herdsmen (bovarii), how each of them holds ten acres, has to do labour services and render loaves and poultry. And then we read that each of them must pay one penny for his head if he be a free man (liber homo), while he pays nothing if he be a servus[94]. This is a well-drawn distinction. Of two men whose economic position is precisely the same, the one may be free, the other a slave, and it is the free man, not the slave, who has to pay a head-penny. Now when the Conqueror’s surveyors, or rather the jurors, call a man a servus they are, so it seems to us, thinking rather of his legal status than of his position in the economy of a manor. At any rate we ought to observe that the economic stratification of society may cut the legal stratification. We are accustomed perhaps to suppose that while the villani have lands that are in some sense their own, while they support themselves and their families by tilling those lands, the servus has no land that is in any sense his own, but is fed at his lord’s board, is housed in his lord’s court, and spends all his time in the cultivation of his lord’s demesne lands. Such may have been the case in those parts of England where we hear of but few servi; those few may have been inmates of the lord’s house and have had no plots of their own. But such can hardly have been the case in the south-western counties; the servi are too many to be menials. Indeed it would seem that these servi sometimes had arable plots, and had oxen, which were to be distinguished from the demesne oxen of their lords—not indeed as a matter of law, but as a matter of economic usage[95]. It is plain that the legal and the economic lines may intersect one another; the menial who is fed by the lord and who must give his whole time to the lord’s work may be a free man; the slave may have a cottage and oxen and a plot of arable land, and labour for himself as well labouring for his lord. Hence a perplexed and uncertain terminology:—the servus who has land and oxen may be casually called a villanus[96], and we cannot be sure that no one whom our record calls a servus has the wergild of a free man. Nor can we be sure that the enumeration of the servi is always governed by one consistent principle. In the shires of Gloucester, Hereford and Worcester we read of numerous ancillae—in Worcestershire of 677 servi and 101 ancillae[97]—and this may make us think that in this district all the able-bodied serfs are enumerated, whether or no they have cottages to themselves[98]. We may strongly suspect that the king’s commissioners were not much interested in the line that separated the villani from the servi, since the lord was as directly answerable for the geld of any lands that were in the occupation of his villeins as he was for the geld of those plots that were tilled for him by his slaves. That there should have been never a theów in all Yorkshire and Lincolnshire is hardly credible, and yet we hear of no servi in those counties.

Disappearance of servi.

This being so, we encounter some difficulty if we would put just the right interpretation on a remarkable fact that is visible in Essex. The description of that county tells us not only how many villani, bordarii and servi there are now, but also how many there were in King Edward’s day, and thus shows what changes have taken place during the last twenty years. Now on manor after manor the number of villeins and bordiers, if of them we make one class, has increased, while the number of servi has fallen. We take 100 entries (four batches of 25 apiece) and see that the number of villani and bordarii has risen from 1486 to 1894, while the number of servi has fallen from 423 to 303. We make another experiment with a hundred entries. This gives the following result:—

This decrease in the number of servi seems to be pretty evenly distributed throughout the county[99]. We shall not readily ascribe the change to any mildheartedness of the lords. They are Frenchmen, and in all probability they have got the most they could out of a mass of peasantry made malleable and manageable by the Conquest. We may rather be entitled to infer that there has been a considerable change in rural economy. For the cultivation of his demesne land the lord begins to rely less and less on the labour of serfs whom he feeds, more and more upon the labour of tenants who have plots of their own and who feed themselves. From this again we may perhaps infer that the labour services of the villani and bordarii are being augmented. But at any rate it speaks ill of their fate, that under the sway of foreigners, who may fairly be suspected of some harshness and greed, their inferiors, the true servi, are somewhat rapidly disappearing. However, it is by no means impossible that with a slavery so complete as that of the English theów the Normans were not very familiar in their own country[100].

§ 3. The Villeins.

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 theLeges 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]

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 S^t. 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.