Indirectly we have had to consider the influence of feudalism, as it was transmitted through the action of its lawyers. But it may be viewed in its direct consequences, which are as manifest as they are important. In England, feudalism in its definite shape is bound up with conquest[246], and it is well known that, though very much hampered on the political side by the royal power, it was exceptionally complete on the side of private law by reason of its sudden, artificial, and enforced introduction. One of the most important results of conquest from this point of view was certainly the systematic way in which the subjection of the peasantry was worked out. If we look for comparison to France as the next neighbour of England and a country which has influenced England, we shall find the same elements at work, but they combine in a variety of modes according to provincial and local peculiarities.

Although the political power of the French baron is so much greater than that of an English lord, the _roturier_ often keeps his distance from the serf better than was the case in England. In France everything depends upon the changing equilibrium of local forces and circ.u.mstances.

In England the Norman Conquest produced a compact estate of aristocracy instead of the magnates of the continent, each of whom was strong or weak according to the circ.u.mstances of his own particular case; it produced Common Law and the King's Courts of Common Law; and it reduced the peasantry to something like uniform condition by surrounding the _liberi et legales homines_ with every kind of privilege. The national colouring given by the _Dialogus de Scaccario_ to the social question of the time is not without meaning in this light:--the peasants may be regarded as the remnant of a conquered race, or as the issue of rebels who have forfeited their rights.

[English feudalism.]

The feudal system once established produced certain effects quite apart from the Conquest, effects which flowed from its own inherent properties. The Conquest had cast free and unfree peasantry together into the one mould of villainage; feudalism prevented villainage from lapsing into slavery. I have shown in detail how the manor gives a peculiar turn to personal subjection. Its action is perceivable in the treatment of the origin of the servile status. The villain, however near being a chattel, cannot be devised by will because he is considered as an annex to the free tenement of the lord. The connexion with a manor becomes the chief means of establishing and proving seisin of the villain. On the other hand, in the trial of _status_, manorial organisation led to the sharp distinction between persons in the power of the lord and out of it. This fact touches the very essence of the case. The more powerful the manor became, the less possible was it to work out subjection on the lines of personal slavery. Without entering into the economic part of the question for the present, merely from the legal point of view it was a necessary consequence of the rise of a local and territorial power that the working people under its sway were subjected by means of its territorial organisation and within its limited sphere of local action. Of course, the State upheld some of the lord's rights even outside the limits of the manor, but these were only a pale reflection of what took place within the manor, and they were more difficult to enforce in proportion as the barriers between the manors rose higher; it became very difficult for one lord to reclaim runaways who were lying within the manor of another lord.

[Survivals of pre-feudal condition.]

If we remove those strata of the law of villainage which owe their origin to the action of the feudal system and to the action of the State, which rises on the ruins of the feudal system, we come upon remnants of the pre-feudal condition. They are by no means few or unimportant, and it is rather a wonder that so much should be preserved notwithstanding the systematic work of conquest, feudalism, and State.

When I speak of pre-feudal condition I do not mean to say, of course, that feudalism had not been in the course of formation before the Norman Conquest. I merely wish to oppose a social order grounded on feudalism to a social order which was only preparing for it and developing on a different basis. The Conquest brought together the free and unfree. Our survivals of the state of things before the Conquest group themselves naturally in one direction, they are manifestations of the free element which went into the const.i.tution of villainage. It is not strange that it should be so, because the servile element predominated in those parts of the law which had got the upper hand and the official recognition. A trait which goes further than the accepted law in the direction of slavery is the difficulties which are put by Glanville in the way of manumission. His statement practically amounts to a denial of the possibility of manumission, and such a denial we cannot accept. His way of treating the question may possibly be explained by old notions as to the inability of a master to put a slave by a mere act of his will on the same level with free men.

[Elements of freedom.]

However this may be, our survivals arrange themselves with this single possible exception in the direction of freedom. Perhaps such facts as the villain's capacity to take legal action against third persons, and his position in the criminal and police law, ought not to be called survivals. They are certain sides of the subject. They are indissolubly allied to such features of the civil law as the occasional recognition of villainage as a protected tenure, and the villain's admitted standing against the lord when the lord had bound himself by covenant. In the light of these facts villainage a.s.sumes an entirely different aspect from that which legal theory tries to give it. Procedural disability comes to the fore instead of personal debas.e.m.e.nt. A villain is to a great extent in the power of his lord, not because he is his chattel, but because the courts refuse him an action against the lord. He may have rights recognised by morality and by custom, but he has no means to enforce them; and he has no means to enforce them because feudalism disables the State and prevents it from interfering. The political root of the whole growth becomes apparent, and it is quite clear, on the one hand, that liberation will depend to a great extent on the strengthening of the State; and, on the other hand, that one must look for the origins of enslavement to the political conditions before and after the Conquest.

One undoubtedly encounters difficulties in tracing and grouping facts with regard to those elements of freedom which appear in the law of villainage. Sometimes it may not be easy to ascertain whether a particular trait must be connected with legal progress making towards modern times, or with the remnants of archaic inst.i.tutions. As a matter of fact, however, it will be found that, save in very few cases, we possess indications to show us which way we ought to look.

Another difficulty arises from the fact that the law of this period was fashioned by kings of French origin and lawyers of Norman training.

What share is to be a.s.signed to their formal influence? and what share comes from that old stock of ideas and facts which they could not or would not destroy? We may hesitate as to details in this respect. It is possible that the famous paragraph of the so-called Laws of William the Conqueror, prescribing in general terms that peasants ought not to be taken from the land or subjected to exactions[247], is an insertion of the Norman period, although the great majority of these Laws are Saxon gleanings. It is likely that the notion of _wainage_ was worked out under the influence of Norman ideas; the name seems to show it, and perhaps yet more the fact that the plough was specially privileged in the duchy. It is to be a.s.sumed that the king, not because he was a Norman but because he was a king, was interested in the welfare of subjects on whose back the whole structure of his realm was resting. But the influence of the strangers went broadly against the peasantry, and it has been repeatedly shown that Norman lawyers were prompted by anything but a mild spirit towards them. The _Dialogus de Scaccario_ is very instructive on this point, because it was written by a royal officer who was likely to be more impartial than the feudatories or any one who wrote in their interest would be, and yet it makes out that villains are mere chattels of their lord, and treats them throughout with the greatest contempt. And so, speaking generally, it is to the times before the Conquest that the stock of liberty and legal independence inherent in villainage must be traced, even if we draw inferences merely on the strength of the material found on this side of the Conquest. And when we come to Saxon evidence, we shall see how intimately the condition of the ceorl connects itself with the state of the villain along the main lines and in detail.

[Ancient demesne.]

The case of ancient demesne is especially interesting in this light. It presents, as it were, an earlier and less perfect crystallisation of society on a feudal basis than the manorial system of Common Law. It steps in between the Saxon _soc_ and _tun_ on the one hand, and the manor on the other. It owes to the king's privilege its existence as an exception. The procedure of its court is organised entirely on the old pattern and quite out of keeping with feudal ideas, as will be shown by-and-by. Treating of it only in so far as it ill.u.s.trates the law of status, it presents in separate existence the two cla.s.ses which were fused in the system of the Common Law; villain socmen are carefully distinguished from the villains, and the two groups are treated differently in every way. A most interesting fact, and one to be taken up hereafter, is the way of treating the privileged group as the normal one. Villain socmen are _the_ men of ancient demesne; villains are the exception, they appear only on the lord's demesne, and seem very few, so far as we can make a calculation of numbers. Villain socmen enjoy a certainty of condition which becomes actual tenant-right when the manor pa.s.ses from the crown into a private lord's hand. As to its origin there can be no doubt--ancient demesne is traced back to Saxon times in as many words and by all our authorities.

[Clues as to the condition of Saxon peasantry.]

A careful a.n.a.lysis of the law of ancient demesne may even give us valuable clues to the condition of the Saxon peasantry. The point just noticed, namely, that the number of villain socmen is exceedingly large and quite out of proportion to that of other tenants, gives indirect testimony that the legal protection of the tenure was not due merely to an influx of free owners deprived of their lands by conquest. This is the explanation given by Bracton, but it is not sufficient to account for the privileged position of almost all the tenants within the manor.

A considerable part of them surely held before the Conquest not as owners and not freely, but as tenants by base services, and their fixity of tenure is as important in the const.i.tution of ancient demesne as is the influx of free owners. If this latter cause contributed to keep up the standard of this status, the former cause supplied that tradition of certainty to which ancient demesne right constantly appeals.

Another point to be kept firmly in view is that the careful distinction kept up on the ancient demesne between villain socmen and villains, proves the law on this subject to have originated in the general distribution of cla.s.ses and rights during the Saxon period, and not in the exceptional royal privilege which preserved it in later days; I mean, that if certainty of condition had been granted to the tenantry merely because it was royal tenantry, which is unlikely enough in itself, the certainty would have extended to tenants of all sorts and kinds. It did not, because it was derived from a general right of one cla.s.s of peasants to be protected at law, a right which did not in the least preclude the lord from using his slaves as mere chattels.

And so I may conclude: an investigation into the legal aspect of villainage discloses three elements in its complex structure. Legal theory and political disabilities would fain make it all but slavery; the manorial system ensures it something of the character of the Roman _colonatus_; there is a stock of freedom in it which speaks of Saxon tradition.

CHAPTER V.

THE SERVILE PEASANTRY OF MANORIAL RECORDS.

[Manorial doc.u.ments.]

It would be as wrong to restrict the study of villainage to legal doc.u.ments as to disregard them. The jurisprudence and practice of the king's courts present a one-sided, though a very important view of the subject, but it must be supplemented and verified by an investigation of manorial records. With one cla.s.s of such doc.u.ments we have had already to deal, namely with the rolls of manorial courts, which form as it were the stepping-stone between local arrangements and the general theories of Common Law. So-called manorial 'extents' and royal inquisitions based on them lead us one step further; they were intended to describe the matter-of-fact conditions of actual life, the distribution of holdings, the amount and nature of services, the personal divisions of the peasantry; their evidence is not open to the objection of having been artificially treated for legal purposes. Treatises on farming and instructions to manorial officers reflect the economic side of the system, and an enormous number of accounts of expenditure and receipts would enable the modern searcher, if so minded, to enter even into the detail of agricultural management[248]. We need not undertake this last inquiry, but some comparison between the views of lawyers and the actual facts of manorial administration must be attempted. Writers on Common Law invite one to the task by recognising a great variety of local customs; Bracton, for instance, mentioning two notable deviations from general rules in the department of law under discussion. In Cornwall the children of a villain and of a free woman were not all unfree, but some followed the father and others the mother[249]. In Herefordshire the master was not bound to produce his serfs to answer criminal charges[250]. If such customs were sufficiently strong to counteract the influence of general rules of Common Law, the vitality of local distinctions was even more felt in those cases where they had no rules to break through. It may be even asked at the very outset of the inquiry whether there is not a danger of our being distracted by endless details. I hope that the following pages will show how the varieties naturally fall into certain cla.s.ses and converge towards a few definite positions, which appear the more important as they were not produced by artificial arrangement from above. We must be careful however, and distinguish between isolated facts and widely-spread conditions. Another possible objection to the method of our study may be also noticed here, as it is connected with the same difficulty. Suppose we get in one case the explanation of a custom or inst.i.tution which recurs in many other cases; are we ent.i.tled to generalise our explanation? This seems methodically sound as long as the contrary cannot be established, for the plain reason that the variety of local facts is a variety of combinations and of effects, not of const.i.tutive elements and of causes.

The agents of development are not many, though their joint work shades off into a great number of variations. We may be pretty sure that a result repeated several times has been effected by the same factors in the same way; and if in some instances these factors appear manifestly, there is every reason to suppose them to have existed in all the cases.

Such reflections are never convincing by themselves, however, and the best thing to test them will be to proceed from these broad statements to an inquiry into the particulars of the case.

[Terminological cla.s.sification.]

The study of manorial evidence must start from a discussion as to terminology. The names of the peasantry will show the natural subdivisions of the cla.s.s. If we look only to the unfree villagers, we shall notice that all the varieties of denomination can easily be arranged into four cla.s.ses: one of these cla.s.ses has in view social standing, another economic condition, a third starts from a difference of services, and a fourth from a difference of holdings. The line may not be drawn sharply between the several divisions, but the general contrast cannot be mistaken.

[Terms to indicate social standing.]

The term of most common occurrence is, of course, _villa.n.u.s_. Although its etymology points primarily to the place of dwelling, and indirectly to specific occupations, it is chiefly used during the feudal period to denote servitude. It takes in both the man who is personally unfree and stands in complete subjection to the lord, and the free person settled on servile land. Both cla.s.ses mentioned and distinguished by Bracton are covered by it. The common opposition is between _villa.n.u.s_ and _libere tenens_, not between _villa.n.u.s_ and _liber h.o.m.o_. It is not difficult to explain such a phraseology in books compiled either in the immediate interest of the lords or under their indirect influence, but it must have necessarily led to encroachments and disputes: it has even become a snare for later investigators, who have sometimes been led to consider as one compact ma.s.s a population consisting of two different cla.s.ses, each with a separate history of its own. The Latin 'rusticus' is applied in the same general way. It is less technical however, and occurs chiefly in annals and other literary productions, for which it was better suited by its cla.s.sical derivation. But when it is used in opposition to other terms, it stands exactly as _villa.n.u.s_, that is to say, it is contrasted with _libere tenens_[251].

[Villains personally unfree.]

The fundamental distinction of personal status has left some traces in terminology. The Hundred Rolls, especially the Warwickshire one[252], mention _servi_ very often. Sometimes the word is used exactly as _villa.n.u.s_ would be[253]. _Tenere in servitute_ and _tenere in villenagio_ are equivalent[254]. But other instances show that _servus_ has also a special meaning. Cases where it occurs in an 'extent'

immediately after _villa.n.u.s_, and possibly in opposition to it, are not decisive[255]. They may be explained by the fact that the persons engaged in drawing up a custumal, jotted down denominations of the peasantry without comparing them carefully with what preceded. A marginal note _servi_ would not be necessarily opposed to a _villani_ following it; it may only be a different name for the same thing. And it may be noted that in the Hundred Rolls these names very often stand in the margin, and not in the text. But such an explanation would be out of place when both expressions are used in the same sentence. The description of Ipsden in Oxfordshire has the following pa.s.sage: _item dictus R. de N. habet de proparte sua septem servos villanos_. (Rot.

Hundr. ii. 781, b: cf. 775, b, _Servi Custumarii_.) It is clear that it was intended, not only to describe the general condition of the peasantry, but to define more particularly their status. This observation and the general meaning of the word will lead us to believe that in many cases when it is used by itself, it implies personal subjection.

The term _nativus_ has a similar sense. But the relation between it and _villa.n.u.s_ is not constant; sometimes this latter marks the genus, while the former applies to a species; but sometimes they are used interchangeably[256], and the feminine for villain is _nieve_ (_nativa_). But while _villa.n.u.s_ is made to appear both in a wide and in a restricted sense, and for this reason cannot be used as a special qualification, _nativus_ has only the restricted sense suggesting status[257]. In connection with other denominations _nativus_ is used for the personally unfree[258]. When we find _nativus domini_, the personal relation to the lord is especially noticed[259]. The sense being such, no wonder that the nature of the tenure is sometimes described in addition[260]. Of course, the primary meaning is, that a person has been born in the power of the lord, and in this sense it is opposed to the stranger--_forinsecus_, _extraneus_[261]. In this sense again the Domesday of St. Paul's speaks of 'nativi a principio' in Navestock[262]. But the fact of being born to the condition supposes personal subjection, and this explains why _nativi_ are sometimes mentioned in contrast with freemen[263], without any regard being paid to the question of tenure. Natives, or villains born, had their pedigrees as well as the most n.o.ble among the peers. Such pedigrees were drawn up to prevent any fraudulent a.s.sertion as to freedom, and to guide the lord in case he wanted to use the native's kin in prosecution of an action _de nativo habendo_. One such pedigree preserved in the Record Office is especially interesting, because it starts from some stranger, _extraneus_[264], who came into the manor as a freeman, and whose progeny lapses into personal villainage; apparently it is a case of villainage by prescription.

[Free men holding villain land.]

The other subdivision of the cla.s.s--freemen holding unfree land[265]--has no special denomination. This deprives us of a very important clue as to the composition of the peasantry, but we may gather from the fact how very near both divisions must have stood to each other in actual life. The free man holding in villainage had the right to go away, while the native was legally bound to the lord; but it was difficult for the one to leave land and homestead, and it was not impossible for the other to fly from them, if he were ill-treated by his lord or the steward. Even the fundamental distinction could not be drawn very sharply in the practice of daily life, and in every other respect, as to services, mode of holding, etc., there was no distinction. No wonder that the common term _villa.n.u.s_ is used quite broadly, and aims at the tenure more than at personal status.

[Terms to indicate economic condition.]

Terms which have in view the general economic condition of the peasant, vary a good deal according to localities. Even in private doc.u.ments they are on the whole less frequent than the terms of the first cla.s.s, and the Hundred Rolls use them but very rarely. It would be very wrong to imply that they were not widely spread in practice. On the contrary, their vernacular forms vouch for their vitality and their use in common speech. But being vernacular and popular in origin, these terms cannot obtain the uniformity and currency of literary names employed and recognised by official authority. The vernacular equivalent for _villa.n.u.s_ seems to have been _niet_ or _neat_[266]. It points to the regular cultivators of the arable, possessed of holdings of normal size and performing the typical services of the manor[267]. The peasant's condition is here regarded from the economical side, in the mutual relation of tenure and work, not in the strictly legal sense, and men of this category form the main stock of the manorial population. The Rochester Custumal says[268] that neats are more free than cottagers, and that they hold virgates. The superior degree of freedom thus ascribed to them is certainly not to be taken in the legal sense, but is merely a superiority in material condition. The contrast with cottagers is a standing one[269], and, being the main population of the village, _neats_ are treated sometimes as if they were the only people there[270]. The name may be explained etymologically by the Anglo-Saxon _geneat_, which in doc.u.ments of the tenth and eleventh century means a man using another person's land. The differences in application may be discussed when we come to examine the Saxon evidence.

Another Saxon term--_gebur_--has left its trace in the _burus_ and _buriman_ of Norman records. The word does not occur very often, and seems to have been applied in two different ways--to the chief villains of the township in some places, and to the smaller tenantry, apparently in confusion with the Norman _bordarius_, in some other[271]. The very possibility of such a confusion shows that it was going out of common use. On the other hand, the Danish equivalent _bondus_ is widely spread.

It is to be found constantly in the Danish counties[272]. The original meaning is that of cultivator or 'husband'--the same in fact as that of _gebur_ and boor. Feudal records give curious testimony of the way in which the word slid down into the 'bondage' of the present day. We see it wavering, as it were, sometimes exchanging with _servus_ and _villa.n.u.s_, and sometimes opposed to them[273]. Another word of kindred meaning, chiefly found in eastern districts, is _landsettus_, with the corresponding term for the tenure[274]; this of course according to its etymology simply means an occupier, a man sitting on land.

[Terms to indicate the nature of services.]

Several terms are found which have regard to the nature of services.

Agricultural work was the most common and burdensome expression of economical subjection. Peasants who have to perform such services in kind instead of paying rents for them are called _operarii_[275].

Another designation which may be found everywhere is _consuetudinarii_ or _custumarii_[276]. It points to customary services, which the people were bound to perform. When such tenants are opposed to the villains, they are probably free men holding in villainage by customary work[277].

As the name does not give any indication as to the importance of the holding a qualification is sometimes added to it, which determines the size of the tenement[278].

In many manors we find a group of tenants, possessed of small plots of land for the service of following the demesne ploughs. These are called _akermanni_ or _carucarii_[279], are mostly selected among the customary holders, and enjoy an immunity from ordinary work as long as they have to perform their special duty[280]. On some occasions the records mention _gersumarii_, that is peasants who pay a _gersuma_, a fine for marrying their daughters[281]. This payment being considered as the badge of personal serfdom, the cla.s.s must have consisted of men personally unfree.

[Terms to indicate the size of the holding.]

Those names remain to be noticed which reflect the size of the holding.

In one of the manors belonging to St. Paul's Cathedral in London we find _hidarii_[282]. This does not mean that every tenant held a whole hide.

On the contrary, they have each only a part of the hide, but their plots are reckoned up into hides, and the services due from the whole hide are stated. _Virgatarius_[283] is of very common occurrence, because the virgate was considered as the normal holding of a peasant.

It is curious that in consequence the virgate is sometimes called simply _terra_, and holders of virgates--_yerdlings_[284]. Peasants possessed of half virgates are _halfyerdlings_ accordingly. The expressions 'a full villain[285]' and 'half a villain' must be understood in the same sense. They have nothing to do with rank, but aim merely at the size of the farm and the quant.i.ty of services and rents. _Ferlingseti_ are to be met with now and then in connexion with the _ferling_ or _ferdel_, the fourth part of a virgate[286].

The constant denomination for those who have no part in the common arable fields, but hold only crofts or small plots with their homesteads, is 'cotters' (_cotsetle_, _cottagiarii_, _cottarii_[287], etc.). They get opposed to villains as to owners of normal holdings[288]. Exceptionally the term is used for those who have very small holdings in the open fields. In this case the authorities distinguish between greater and lesser cotters[289], between the owners of a 'full cote' and of 'half a cote[290].' The _bordarii_, so conspicuous in Domesday, and evidently representing small tenants of the same kind as the cottagers, disappear almost entirely in later times[291].

[Results as to terminology.]

We may start from this last observation in our general estimate of the terminology. One might expect to find traces of very strong French influence in this respect, if in any. Even if the tradition of facts had not been interrupted by the Conquest, names were likely to be altered for the convenience of the new upper cla.s.s. And the Domesday Survey really begins a new epoch in terminology by its use of _villani_ and _bordarii_. But, curiously enough, only the first of these terms takes root on English soil. Now it is not a word transplanted by the Conquest; it was in use before the Conquest as the Latin equivalent of _ceorl_, _geneat_, and probably _gebur_. Its success in the thirteenth and fourteenth centuries is a success of Latin, and not of French, of the half-literary record language over conversational idioms, and not of foreign over vernacular notions. The peculiarly French '_bordier_,' on the other hand, gets misunderstood and eliminated. Looking to Saxon and Danish terms, we find that they hold their ground tenaciously enough; but still the one most prevalent before the Conquest--_ceorl_-- disappears entirely, and all the others taken together cannot balance the diffusion of the 'villains.' The disappearance of _ceorl_ may be accounted for by the important fact that it was primarily the designation of a free man, and had not quite lost this sense even in the time immediately before the Conquest. The spread of the Latin term is characteristic enough in any case. It is well in keeping with a historical development which, though it cannot be reduced to an importation of foreign manners, was by no means a mere sequel to Saxon history[292]. A new turn had been given towards centralisation and organisation from above, and _villa.n.u.s_, the Latin record term, ill.u.s.trates very aptly the remodelling of the lower stratum of society by the influence of the curiously centralised English feudalism.

The position of the peasantry gets considered chiefly from the point of view of the lord's interests, and the cla.s.sification on the basis of services comes naturally to the fore. The distribution of holdings is also noticed, because services and rents are arranged according to them.