[95] Selden Society, _Select Cases in the Court of Requests_, John Burde and another v. The Earl of Bath. The quarrel dragged on from 1535 to 1544, when the plaintiff's goods were restored.

(In 1551, however, when all bad landlords were raising their heads, his house and cattle were again seized.)

[96] _Ibid._, Netheway _v._ George, 1534. For other cases see Selden Society, _Select Cases in the Court of Star Chamber_.

Carter _v._ Abbot of Malmesbury (vol. i., 1500), and Selby _v._ Middlemore (vol. ii., 1516-1522). Mr. Leadam's remarks (int.

cxxix.) show that a man who was legally a villein might be economically very prosperous: "Thomas Carter ... was charged 40 marks for his enfranchis.e.m.e.nt. He kept a man-servant. He rode on horseback. He gave a feast to celebrate his freedom. He was even on friendly terms with the gentlemen of the Abbot's household."

See also Savine, _Trans. Royal Hist. Soc._, vol. xvii. Lord Stafford actually tried to seize the Mayor of Bristol and his brother as bondmen!

This change from servile to free labour, begun some two centuries before, and virtually completed in the reign of Elizabeth, is a high landmark in the development both of economic and political society. It is a long step towards modern industrialism on the one hand and the modern all-inclusive state on the other. By sapping the organisation of society on the basis of tenure, and thus making room for the more elastic relationships of the wage-contract, it prepared the way for new methods of production and for the growth of new centres of economic power. The refusal of the courts to allow that the lord of a manor had, _qua_ lord, a theoretical right to dispose of the persons and chattels of his unfree tenants, meant the final triumph of the common law in regions with which for four centuries after the Norman Conquest it had not dared to interfere. Henceforward, while the German peasant is driven afield to gather snails and wild strawberries for his lord, is plundered and harried and tortured without hope of redress, his English brother is a member of a society in which there is, nominally at least, one law for all men. His liberty may be more in shadow than in substance, yet the shadow is itself an earnest of greater things. To us who know the misery of many of the poorer cla.s.ses in the sixteenth century the boast that "if any slaves or bondmen come here from other realms, so soon as they set foot on land they became so free of condition as their masters," may read like a bitter mockery. But it is something that the boast should be made, and when England is confronted with the greatest moral issue of the modern world, that boast will stand her in good stead.[97] She owes some acknowledgment to the nameless serfs who fled from farm and homestead, till villeinage, in spite of the law, bled gradually to death.

[97] Hargreave's speech in Somersett's case (1771-1772, Howell, _State Trials_, xx.) is based largely on precedents drawn from villeinage: "Though villeinage itself is obsolete ... those rules, by which the claim of it was regulated, are not yet buried in oblivion.... By a strange progress of human affairs the memory of slavery expired now furnishes one of the chief obstacles to slavery attempted to be revived.... The law of England, then, excludes every slavery not commencing in England, every slavery, though commencing there, not being ancient and immemorial. Villeinage is the only slavery which can possibly answer to such a description, and that has long expired by the death or emanc.i.p.ation of all those who were once the objects of it. Consequently there is now no slavery which can be lawful in England."

Having said so much we must hasten to guard ourselves, by adding that the final disappearance of serfdom in this country neither involved any radical conversion of opinion, nor prevented the cla.s.ses who depended solely on their labour from being, on occasion, cruelly oppressed. It would be a mistake to see in the att.i.tude of the governing cla.s.ses towards villeinage a symptom of humanitarian feeling for the rights of a helpless cla.s.s, such as prompted the emanc.i.p.ation movement of the last century. How little humanitarianism influenced economic policy in relation to those who were too powerless to be dangerous, is shown by the sanguinary statutes relating to the dest.i.tute, and in particular by the extraordinary legalisation of slavery in the Act[98] of 1547, by which a confirmed vagrant might, when captured, be made a bondman for life. Nor must we think of the disappearance of legalised serfdom as effecting a great improvement in the lot of the ordinary wage-worker.

Those who benefited by it were not so much the workers for wages, as the landholding peasants. The wage-labourer, who was tied to his parish by the Statute of Artificers almost as completely as the serf had been by the custom of the manor, can hardly have seen much difference between the restrictions on his movement imposed by the Justices of the Peace and those laid on him by the manorial authorities, except indeed that the latter, being limited to the area of a single village, had been more easy to evade.

[98] 1 Ed. VI., c. 3. Possibly, however, the penalty of bondage was regarded as a step towards greater leniency, as the punishment of "incorrigible rogues" had hitherto been death.

Even if we confine our attention to the landholding peasants, to whom the advantage (for they were quick to seize it) was certainly real enough, we may doubt whether they did not lose almost as much by the intrusion into agriculture of compet.i.tive commercial forces as they gained by the final disappearance of a claim which had always been held in check by the custom of the manor, and which, since the ravages of the Great Plague, had been steadily circ.u.mscribed by commutation. The truth is that the sharp ant.i.thesis drawn by modern commercial societies between serfs and the free labourers on whose slowly straightening backs our civilisation is uneasily poised, and emphasised as though it marked a line between hopeless oppression and unqualified liberty, requires to be supplemented by categories derived from a wider and more tragic range of experience than was open to our forefathers. There are more ways of living "at the will of a lord" than were known to Glanvill and Bracton, and the utility of the contrast in the sphere of legal a.n.a.lysis does not save it from being but a thin abstraction of the countless forms of tyranny which spring from the world-old power of one human being to use another as his tool. That dependence on the uncontrolled caprice of a master whom one hates to obey and dare not abandon, which, by whatever draperies it may be veiled, is still the bitter core of serfdom,[99] is compatible with the most diverse legal arrangements; with wage labour as with forced services, with tenure by a compet.i.tive money rent as well as with tenure by personal obligations, with freedom of contract as well as with inherited status, with protection by the national courts as well as with its absence.

[99] More's remarks on the lot of the wage-workers of his day have a refreshing note of reality. The Utopians are "not to be wearied from earlie in the morning to late in the evenninge with continuall worke, like labouringe and toylinge beastes. For this is worse then the miserable and wretched condition of bondemen.

Whiche nevertheless is almooste everywhere the lyfe of workemen and artificers, saving in Utopia" (More, _Utopia_, Pitt Press Edition, pp. 79?-80).

When we turn over the pages in which the writers of the sixteenth century declare that bondage is contrary to "the Christian religion which maketh us all in Christ breathren, and in respect of G.o.d and Christ _conservos_,"[100] and congratulate themselves on its disappearance, we must not doubt their sincerity, but we may envy their inexperience. We must remember that a condemnation of villeinage was quite compatible with a policy of great severity towards the wage-labourer, and was in fact not unconnected with it, since the latter had almost everywhere stepped into places and functions formally held by the bondman. Villeinage disappeared in England earlier than on the continent of Europe, not for the ethical reasons given by Fitzherbert and Smith and Norden, but because the growth of a commercial organisation of agriculture had made its maintenance both useless and impossible. The intellectual conversion did little more than follow on the economic change to make a virtue of necessity. The personal rightlessness of the villein and the hateful incidents of villeinage, such as chevage, merchet, and leyrwite, had had their utility in the fact that they kept him at the disposal of the manorial authorities as an instrument of agriculture. With the subst.i.tution of hired labour for the cultivation of the demesne by the services of bond tenants, their maintenance lost its attractiveness. No employer wants to retain a permanent staff, if there are "hands" whom he can take on and put off at pleasure. Villeinage ceases but the Poor Laws begin.

[100] Smith, _De Republica Anglorum_, Lib. III., ch. 8. See also Fitzherbert, _Surveying_ (1539): "How be it, in some places the bondmen continue as yet, the which me seemeth is the greatest inconvenience that now is suffered by the law." Norden, _The Surveyor's Dialogue_ (1608): "Which kinde of service and slavery, thanks be to G.o.d, is in most places of this Realme quite abolished and worne out of memory.... Truly I think it is a Christian parte so to do [_i.e._ manumit bondsmen], for seeing we be nowe all as the children of one father, the servants of one G.o.d, and the subjects of one king, it is very uncharitable to retain our brethren in bondage, sith, when we were all bond, Christ did make us free."

Much more important than this difference of legal status are differences in the tenure by which customary tenants hold their lands.

Under the name of customary tenants are grouped together all holders of lands which pa.s.s by surrender and admission in the court of the manor, and which are subject to the custom of the manor as evidenced by the records of the court. But not all these lands are held by exactly the same t.i.tle. Some are held by copy of court roll according to the custom of the manor, on the terms set out on a copy of the entry of admission.

Others are held without a doc.u.mentary t.i.tle, and are often said to be occupied at the will of the lord, or at the pleasure of the lord, or by grant or permission of the lord or of the court, their essential feature being that the tenant does not possess any instrument recording the transaction, but has, if necessary, to appeal to the records of the court or even to its mere memory.

One must hasten to add, however, that these cla.s.ses are not mutually exclusive. A copyholder is a tenant at will, though qualified by the addition of the words "by copy of court roll according to the custom of the manor." It not seldom happens that in rentals and surveys he is simply described as a tenant at will, and that the fact that he has a copy is not recorded. A tenant at will is usually (though not always) a customary tenant, and, when he is, he can appeal to the custom with as good a right as a copyholder, though of course the fact that his t.i.tle is not in his own keeping may prejudice him if the manorial authorities want to get rid of him. "All[101] copyhold land," it was said, "is commonly customary, but all customary land is not copyhold," and one may accept the statement with the reservation that "commonly" must not be taken to mean "always," for it is quite usual in parts of England for land which by no stretch of imagination can be called customary land, for example, part of the lord's demesne, to be let by copy of court roll. The fact that "tenant at will" was sometimes used as a compendious phrase for "copyholder," and that both are sometimes described simply as "customary tenants" without further definitions, makes it impossible to offer any accurate estimate of the relative number of those holding by copy and those holding at will. It may, however, be of interest to give an a.n.a.lysis of the entries as they appear in a group of manorial doc.u.ments. It is as follows[102]:--

TABLE III

+------------------------------+-----+---------+----------+----------+

Total

"Copy-

"Customary

"Tenants

holders."

Tenants."

at Will."

+------------------------------+-----+---------+----------+----------+

Northumberland

436

362

45

29

Lancashire

451

295

156

...

Staffordshire

272

170

...

102

Leicestershire

311

157

...

154

Northamptonshire

355

253

931

91

Norfolk

596

536

45

15

Suffolk

146

53

82

11

Wilts and Somerset

817

786

...

31

Hampshire

251

251

...

...

Ten other manors in the south

of England

158

87

45

26

+------------------------------+-----+---------+----------+----------+

Total

3793

2950

466

377

+------------------------------+-----+---------+----------+----------+

[101] Norden, _The Surveyor's Dialogue_. He continues: "For in some places of this Realme Tennants have no copies at all of their lands or tenements, or anything to show for that they hold, but there is an entry made in the Court Books, and that is their evidence."

[102] See Appendix II.

These figures, one must repeat, are merely a summary of the entries in surveys and rentals. Probably they underestimate the number of copyholders, as we know that copyholders were sometimes entered as tenants at will or as customary tenants for the sake of brevity, while it is not probable that tenants at will who had not got copies were often written down as copyholders. One may suspect that this, rather than any difference of custom, is the explanation of the relatively small number of those who are returned as copyholders in Lancashire, Staffordshire, Leicestershire, and Suffolk. Still, these figures do show the enormous preponderance of copyholders among the customary tenants, and show it all the more certainly if the number of copyholders is to be taken, as is probable, as the minimum. And this agrees with what we know from the incidental references of the writers of the time. Of 1000 tenants on the great ecclesiastical manor of Scrooby in Nottinghamshire "the most part" were said by Archbishop[103] Sandys in 1582 to be copyholders. Harrison[104] in 1587 spoke of copyholders as those "by whom the greatest part of the realm doth stand and is maintained." At the beginning of the seventeenth century c.o.ke[105] could say that the third part of England consisted of copyhold. Copyholders, it is true, are far from being all of one type; for the essence of their tenure is that it depends on the custom of the manor which varies from place to place, and when we come to consider how far they have security against eviction these differences are of crucial importance. Still, in spite of the varieties of copyhold tenure, it is useful to know that to the bulk of the population in the sixteenth century landholding meant holding by copy of court roll according to the custom of the manor. No account of the agrarian changes can stand for a moment which does not give full weight to the fact that, in most parts of England, the copyholders greatly outnumber all other cla.s.ses of tenants.

[103] Archbishop Sandys to Queen Elizabeth, Sat.u.r.day 24 November to 4 December, 1582 (quoted by E. Arber, _The Story of the Pilgrim Fathers_, pp. 61-?64).

[104] Harrison in _Elizabethan England_ (Withington), p. 120.

[105] Quoted by Na.s.se, _The Land Community of the Middle Ages_ (Ouvry's trans.). I have not been able to trace the reference.

The numerical predominance of the customary tenants and among those of the copyholders, together with the disastrous effects upon them which are ascribed by most of our authorities to the agrarian changes of the sixteenth century, makes a somewhat detailed examination of their position essential. In particular it is important to try to bridge the gap between the agricultural system of the sixteenth and that of the thirteenth and fourteenth centuries, out of which it emerged, and of which it continued to bear unmistakable traces. The problem is really a twofold one, partly legal and partly economic. First, what was the legal nature of copyhold tenure, and how did it arise out of mediaeval villeinage? Secondly, there is the question, which for us is more important, of the type of agriculture which prevailed among the ma.s.s of the people. The economist wants to know whether the customary tenants were large cultivators or small, whether they included considerable capitalists and mere cottagers or whether their holdings were of a fairly uniform pattern, whether they farmed mainly for subsistence or for the market, whether they lived entirely by tillage or were pasture farmers as well, whether they were tied down by custom or showed any signs of being influenced by the agricultural innovations of our period.

Of these two questions the first has been investigated much more thoroughly than the second. We shall return to it later in considering how far the copyholder had security of tenure, and enjoyed legal protection against the lord who wished to evict him. But we may say at once that we accept in substance the argument of those who hold that most copyholders are the descendants of villeins holding villein land, that copyhold tenure is, in fact, villein tenure to which the courts from the end of the fourteenth century have gradually extended their protection, and that the puzzling differences between the position of one group of copyholders and another are due to differences in manorial custom which were followed and upheld by the courts. This not only is the traditional view, in the sense of being that which is implied in the insistence of contemporaries that copyhold originated in base tenure, and that copyholders were tenants "whom the favourable hand of time hath much enfranchised,"[106] but also seems to be that which best fits the situation of the copyholder as we find it in the sixteenth century.

[106] Norden, _The Surveyor's Dialogue_.

This line of development is suggested, though it is not proved, by the mere preponderance of copyholders. In looking for the antecedents of so numerous and widely spread a cla.s.s we can only find them in the tenure of the ma.s.s of the people in the thirteenth and fourteenth centuries, that is in villein tenure. Further, we do not find in villein tenure any such fundamental distinction between customary tenure which was protected and base tenure which was not, as has been sometimes postulated as an explanation of the qualified legal security possessed by copyholders 200 years later. On the contrary, the tenure of the villeins is marked by the same variety of customary conditions as appears in that of the copyholders, with the difference that, when once copyhold has taken root, these customs are enforced by the courts. The same conclusion is borne out by the survival of ancient formulae among the terms by which the conditions of the copyholders are recorded in the surveys. It is quite common for copyholders in the sixteenth century to be described as occupying "bond"[107] or "native" land; sometimes one finds a whole list of them set down under the rubric "holding[108]

native lands by copy of court roll." The last thing, of course, which occurred to the writer of these entries was any legal theory as to the origin of copyhold tenure. All he was concerned to do was to describe the holdings in the way which was most precise and left least room for possible disputes. Clearly, he must have had it in his mind that lands which in his day were let by copy of court roll were lands which were known generally in the village as bond lands, and which in earlier doc.u.ments were described as being occupied in villeinage.

[107] _E.g._, R.O. Rentals and Surveys Gen. Ser., Portf. 27, No.

32, Dunstall (Suffolk): "Bond land held by copy of court roll, 13s. 4d. Of holders of 3 bond pightells, 5s. 4d." MSS. of Earl of Leicester at Holkham, t.i.ttleshall Books, No. 62, Langham Hall (Norfolk): "Redditus a.s.sissae native tenentium. ... John Rose per copiam, 4d." R.O. Rentals and Surveys Gen. Ser. Portf. 14, No.

70, Barton (Staffs.): "T. Collinson 1 messuage 1/4 virgate land de bond ... by copy 2 Hen. viii."

[108] MSS. of Earl of Leicester at Holkham, Billingford and Bintry MSS., No. 9, Foxley: "Native tenentium per copiam rotuli curiae."

One may approach the question in another way, by looking at the circ.u.mstances of those exceptional manors on which the tenants at will are more numerous than the copyholders, and which are instructive just because they represent a variation from the general type. A case in point is the Manor of Knyghton in Wiltshire. On the majority of the manors held in that county by the Earl of Pembroke the copyholders are far the most numerous cla.s.s, and on some they are the only cla.s.s, among the customary tenants. At Knyghton,[109] however, there are no copyholders; all the customary tenants hold at the will of the lord, and when one examines the position and methods of agriculture more closely, one finds that they display several signs of being in other respects more antiquated and conservative than is the case in other parts of the same country; for example, all the holdings are either virgates of twenty-four acres or some fraction and multiple of a virgate, which is not at all common on other Wiltshire manors, and implies an unusual approximation to the conditions of the peasantry two centuries before.

Is it unreasonable to conclude that this is a case of arrested development, and that Knyghton is a manor on which the tenants at will have never turned into copyholders, because for one reason or another it has lain outside the main stream of agricultural development?

[109] Roxburghe Club, _Surveys of Manors of William, First Earl of Pembroke_.

The connection with copyhold tenure of some of the characteristic obligations and disabilities of villeinage points in the same direction.

In spite of the general commutation of services into money payments, which Mr. Page's statistics show to have taken place before the middle of the fifteenth century, one still finds the attenuated records of labour rents surviving for many generations after the direct management of the demesne by manorial officials has been abandoned, and pa.s.sing with the rest of the farm equipment to the farmer who takes it on lease.

In Norfolk and Suffolk they seem indeed to have disappeared almost altogether, which is what one would expect in view of the fact that those counties were the Lancashire and West Riding of the period, and no doubt, even when labour services were still exacted, the farmer relied mainly upon hired labour. But it would be a mistake to regard the tenants' works as everywhere so trifling as to be of no economic importance. Often, it is true, they are inconsiderable. At South Newton,[110] for example, though the uncertainty which had been one of the marks of villeinage still survived among the copyholders in the shape of the duty of "gift carriage," the transport of such timber as was wanted to the lord's house at Wilton, the purely agricultural services were unimportant, and the tenants of every yardland had only to mow the farmer's meadow and to carry his hay. At Cuxham,[111] in Oxfordshire, on the other hand, the authorities were still getting twenty-eight boonworks in autumn from the copyholders at the end of the fifteenth century. On a Northumbrian[112] manor belonging to Tynemouth Priory down to the dissolution of the monasteries "every tenant did lead to the castle in the prior's time one load of hay, mow three several dayworks of hay, rake one daywork and sheare three severall dayworks in the corn in harvest every year." At Washerne,[113] in Wiltshire, the copyhold tenants' labours were in 1568 still quite an important affair: each holder of one virgate of twenty acres "shall plough three half acres for the lord's winter seed and shall harrow them, and also the aforesaid tenants shall wash and shear the lord's sheep ... and further each of them shall mow one acre of meadow ... and gather hay thence and prepare it.... Each of the said tenants shall reap one acre of wheat and he must bind the crop and carry it. Also each of them shall reap one acre of barley." On a Lancashire[114] manor in 1628 every plough hand is obliged to do two days' work in the year with a team on the demesne, and two days with a labourer. Such elaborate obligations as appears at Washerne are, it is true, the exception. But they show that in the middle of the sixteenth century there were still backwaters where the remnants of agricultural services were a not inconsiderable burden; and if their comparative lightness marks the progress from villeinage to a wage system, their survival as clearly shows that villeinage was the pit from which copyhold tenure was digged.

[110] Roxburghe Club, _Surveys of Manors of William, First Earl of Pembroke_.

[111] Merton Doc.u.ments, 5902.

[112] _Northumberland County History_, vol. viii., p. 220 (one may add that in parts of Northumberland the labourers are still called "bondagers"; Mr. Clay tells me that in the Calder valley farmers still use "daywork" as a unit for measuring fields). See also _Calendar of Proceedings in Chancery, temp. Eliz._, D. d.

2, 44, for a suit by a farmer to recover services due from tenants.

[113] Pembroke Surveys.

[114] _Chetham Society Miscellanies_, vol. iii.

More striking still, perhaps, is the persistence of disabilities of another kind. The old marks of personal bondage, chevage, merchet, leyrwite, liability to tallage, and the rest have almost disappeared.

But traces of them are still found clinging to the copyhold tenants.

Copyholders pay a fixed sum to be free of tallages.[115] They pay salt silver instead of the salt with which they had once been obliged to toil to the lord's manor-house; they are forced to act as the lord's reeve, and collect his rents, heriots, and strays. In one curious instance one finds something very like a tallage[116] being taken at the beginning of the seventeenth century, though of course that is not what it is called. The tenants are simply collected and told that they must help the lord to pay for an estate which he has bought, by giving him three years' rent apiece, that, if they do, no more gifts will be demanded during his lifetime, and that, if they do not, he will refuse to renew holdings as they fall in. Even merchet, the most hateful of all the incidents of villeinage, is something more than a mere memory. As late as 1620 the tenants of Holt[117] in Denbighshire thought it worth while to point out to the crown surveyor that "they are freed from payment of any sum of money upon the marriage of their daughters," and even in 1654 Leyrwite and childwite were still being paid by the heiresses of copyhold tenants on some of the Warwickshire[118] manors.

[115] Pembroke Surveys, Estoverton and Phipheld: "Tenentes de Estoverton reddunt annuatim pro pannagio et tallagio ... ivs."

For salt silver, _ibid._, South Newton. For liability to serve as Reeve, _ibid._, Paynton.

[116] _Chetham Society Miscellanies_, vol. iii.: "I would wish you to call the tenants first all together and to signify unto them that my father and I have gone through with Mr. Ireland for Warrington, and the summe we are to give is above 7000; and this was done making no doubt that towards it every one of them being tenants would by their a.s.sistance enable us to finish it.... If they faile in this, they may provoke us to sharp courses, especially mee, who have had a purpose to take the third part of every living as it falls."

[117] Wrexham Free Library, _Ancient Local Records_, vol. ii.

MS. transcript by A.N. Palmer, "Survey of the Town and Liberty of Holt."

[118] Savine, _Quarterly Journal of Economics_, vol. xix.

It will not, therefore, be surprising to find that the humble origin of copyhold tenure has left marks upon it in other ways as well, and, in particular, that though the copyholder is not without legal protection when the lord tries to get rid of him, that protection is often of a somewhat shadowy and ineffective kind. His t.i.tle is a customary one, and mighty as custom still is, it has for centuries been growing gradually weaker. Its weakening is at once an advantage and a disadvantage to the peasantry. It relieves them of odious obligations and leaves them greater room to push their fortunes. It lowers a protecting barrier and exposes them to the dissolving forces of compet.i.tion.