RIGHTS AND DISABILITIES OF THE VILLAIN.
Legal theory as we have seen endeavoured to bring the general conception
of villainage under the principles of the Roman law of slavery, and
important features in the practice of the common law went far to support
it in so doing. On the other hand, even the general legal theory
discloses the presence of an element quite foreign to the Roman
conception. If we proceed from principles to their application in
detail, we at once find, that in most cases the broad rules laid down on
the subject do not fit all the particular aspects of villainage. These
require quite different assumptions for their explanation, and the whole
doctrine turns out to be very complex, and to have been put together out
of elements which do not work well together.
[Villainage by birth.]
We meet discrepancies and confusion at the very threshold in the
treatment of the modes in which the villain status has its origin. The
most common way of becoming a villain was to be born to this estate, and
it seems that we ought to find very definite rules as to this case. In
truth, the doctrine was changing. Glanville (v. 6) tried in a way to
conform to the Roman rule of the child following the condition of the
mother, but it could not be made to work in England, and ever since
Bracton, both common law and jurisprudence reject it. At the close of
the Middle Ages it was held that if born in wedlock the child took after
his father[57], and that a bastard was to be accepted as _filius
nullius_ and presumed free[58]. Bracton is more intricate; the bastard
follows the mother, the legitimate child follows the father; and there
is one exception, in this way, that the legitimate child of a free man
and a nief born in villainage takes after the mother[59]. It is not
difficult to see why the Roman rule did not fit; it was too plain for a
state of things which had to be considered from three different
sides[60]. The Roman lawyer merely looked to the question of status and
decided it on the ground of material demonstrability of origin[61], if
such an expression may be used. The Medieval lawyer had the Christian
sanctification of marriage to reckon with, and so the one old rule had
to be broken up into two rules--one applicable to legitimate children,
the other to bastards. In case of _bastardy_ the tendency was decidedly
in favour of retaining the Roman rule, equally suiting animals and
slaves, and the later theory embodied in Littleton belongs already to
the development of modern ideas in favour of liberty[62]. In case of
_legitimacy_ the recognition of marriage led to the recognition of the
family and indirectly to the closer connexion with the father as the
head of the family. In addition to this a third element comes in, which
may be called properly feudal. The action of the father-rule is
modified by the influence of territorial subjection. The marriage of a
free man with a nief may be considered from a special point of view, if,
as the feudal phraseology goes, he enters to her into her
villainage[63]. By this fact the free man puts his child under the sway
of the lord, to whose villainage the mother belongs. It is not the
character of the tenement itself which is important in this case, but
the fact of subjection to a territorial lord, whose interest it is to
retain a dependant's progeny in a state of dependency. The whole system
is historically important, because it illustrates the working of one of
the chief ingredients of villainage, an ingredient entirely absent from
ancient slavery; whereas medieval villainage depends primarily on
subjection to the territorial power of the lord. Once more we are shown
the practical importance of the manorial system in fashioning the state
of the peasantry. Generally a villain must be claimed with reference to
a manor, in connexion with an unfree hearth; he is born in a nest[64],
which makes him a bondman. The strict legal notion has to be modified to
meet the emergency, and villainage, instead of indicating complete
personal subjection, comes to mean subjection to a territorial lord.
This same territorial element not only influences the status of the
issue of a marriage, it also affects the status of the parties to a
marriage, when those parties are of unequal condition. Most notable is
the case of the free wife of a villain husband lapsing into servitude,
when she enters the villain tenement of her consort; her servitude
endures as long as her husband is in the lord's power, as long as he is
alive and not enfranchised. The judicial practice of the thirteenth
century gives a great number of cases where the tribunals refuse to
vindicate the rights of women entangled in villainage by a
mesalliance[65]. Such subjection is not absolute, however. The courts
make a distinction between acquiring possession and retaining it. The
same woman who will be refused a portion of her father's inheritance
because she has married a serf, has the assize of novel disseisin
against any person trying to oust her from a tenement of which she had
been seised before her marriage[66]. The conditional disabilities of the
free woman are not directly determined by the holding which she has
entered, but by her marital subordination to an unfree husband ('sub
virga,' Bract. Note-book, pl. 1685). For this reason the position of a
free husband towards the villainage of his wife a nief is not exactly
parallel. He is only subject to the general rules as to free men holding
in villainage[67]. In any case, however, the instances which we have
been discussing afford good illustrations of the fact, that villainage
by no means flows from the simple source of personal subjection; it is
largely influenced by the Christian organisation of the family and by
the feudal mixture of rights of property and sovereignty embodied in the
manorial system.
[Prescription.]
There are two other ways of becoming a villain besides being born to the
condition; the acknowledgment of unfree status in a court of record, and
prescription. We need not speak of the first, as it does not present any
particulars of interest from a historical point of view. As to
prescription, there is a very characteristic vacillation in our sources.
In pleadings of Edward III's time its possibility is admitted, and it is
pointed out, that it is a good plea if the person claimed by
prescription shows that his father and grandfather[68] were strangers.
There is a curious explanatory gloss, in a Cambridge MS. of Bracton,
which seems to go back at least to the beginning of the fourteenth
century, and it maintains that free stock doing villain service lapses
into villainage in the fifth generation only[69]. On the other hand,
Britton flatly denies the possibility of such a thing; according to him
no length of time can render free men villains or make villains free
men. Moreover he gives a supposed case (possibly based on an actual
trial), in which a person claimed as a villain is made to go back to
the sixth generation to establish his freedom.[70] It does not seem
likely that people could often vindicate their freedom by such elaborate
argument, but the legal assumption expounded in Britton deserves full
attention. It is only a consequence of the general view, that neither
the holding nor the services ought to have any influence on the status
of a man, and in so far it seems legally correct. But it is easy to see
how difficult it must have been to keep up these nice distinctions in
practice, how difficult for those who for generations had been placed in
the same material position with serfs to maintain personal freedom.[71]
For both views, though absolutely opposed to each other, are in a sense
equally true: the one giving the logical development of a fundamental
rule of the law, the other testifying to the facts. And so we have one
more general observation to make as to the legal aspect of villainage.
Even in the definition of its fundamental principles we see notable
discrepancies and vacillations, which are the result of the conflict
between logical requirements and fluctuating facts.
[Criminal law in its relation to villainage.]
The original unity of purpose and firmness of distinction are even more
broken up when we look at the criminal and the police law where they
touch villainage. In the criminal law of the feudal epoch there is
hardly any distinction between free men and villains. In point of
amercements there is the well-known difference as to the 'contenement'
of a free landholder, a merchant and a villain, but this difference is
prompted not by privilege but by the diversity of occupations. The
Dialogus de Scaccario shows that villains being reputed English are in a
lower position than free men as regards the presumption of Englishry and
the payment of the murder-fine,[72] but this feature seems to have
become obliterated in the thirteenth century. In some cases corporal
punishment may have differed according to the rank of the culprit, and
the formalities of ordeal were certainly different[73]. The main fact
remains, that both villains and free men were alike able to prosecute
anybody by way of 'appeal'[74] for injury to their life, honour, and
even property[75], and equally liable to be punished and prosecuted for
offences of any kind. Their equal right was completely recognized by the
criminal law, and as a natural sequence of this, the pleas of the crown
generally omit to take any notice of the status of parties connected
with them. One may read through Mr. Maitland's collection of Pleas of
the Crown edited for the Selden Society, or through his book of
Gloucestershire pleas, without coming across any but exceptional and
quite accidental mentions of villainage. In fact were we to form our
view of the condition of England exclusively on the material afforded by
such documents, we might well believe that the whole class was all but
an extinct one. One glance at Assize Rolls or at Cartularies would teach
us better. Still the silence of the Corona Rolls is most eloquent. It
shows convincingly that the distinction hardly influenced criminal law
at all.
[Police in relation to villainage.]
It is curious that, as regards police, villains are grouped under an
institution which, even by its name, according to the then accepted
etymology, was essentially a free institution. The system of frank
pledge (_plegium liberale_), which should have included every one
'worthy of his _were_ and his _wite_,' is, as a matter of fact, a system
which all through the feudal period is chiefly composed of villains[76].
Free men possessed of land are not obliged to join the tithing because
they are amenable to law which has a direct hold on their land[77], and
so the great mass of free men appear to be outside these arrangements,
for the police representation of the free, or, putting it the other way,
feudal serfs actually seem to represent the bulk of free society. The
thirteenth-century arrangements do not afford a clue to such paradoxes,
and one has to look for explanation to the _history_ of the classes.
The frankpledge system is a most conspicuous link between both sections
of society in this way also, that it directly connects the subjugated
population with the hundred court, which is the starting-point of free
judicial organisation. Twice a year the whole of this population, with
very few exceptions, has to meet in the hundred in order to verify the
working of the tithings. Besides this, the class of villains must appear
by representatives in the ordinary tribunals of the hundred and the
shire: the reeve and the four men, mostly unfree men[78], with their
important duties in the administration of justice, serve as a
counterpoise to the exclusive employment of 'liberi et legales homines'
on juries.
[Civil disability of a villain as to his lord.]
And now I come to the most intricate and important part of the
subject--to the civil rights and disabilities of the villain. After what
has been said of the villain in other respects, one may be prepared to
find that his disabilities were by no means so complete as the strict
operation of general rules would have required. The villain was able in
many cases to do valid civil acts, to acquire property and to defend it
in his own name. It is true that, both in theory and in practice, it was
held that whatever was acquired by the bondman was acquired by the lord.
The bondman could not buy anything but with his lord's money, as he had
no money or chattels of his own[79]. But the working of these rules was
limited by the medieval doctrine of possession. Land or goods acquired
by the serf do not _eo ipso_ lapse into his lord's possession, but only
if the latter has taken them into his hand[80]. If the lord has not done
so for any reason, for want of time, or carelessness, or because he did
not choose to do so, the bondman is as good as the owner in respect of
third persons. He can give away[81] or otherwise alienate land or
chattels, he has the assize of novel disseisin to defend the land, and
leaves the assize of mort d'ancestor to his heirs. In this case it would
be no good plea to object that the plaintiff is a villain. In fact this
objection can be raised by a third person only with the addition that,
as villain, the plaintiff does not hold in his own name, but in the name
of his lord[82]. A third person cannot except against a plaintiff merely
on the ground of his personal status. As to third persons, a villain is
said to be free and capable to sue all actions[83]. This of course does
not mean that he has any action for recovering or defending his
possession of the tenements which he holds _in villainage_, but this
disability is no consequence of his servile blood, for he shares it with
the free man who holds in villainage; it is a consequence of the
doctrine that the possession of the tenant in villainage is in law the
possession of him who has the freehold. It may be convenient for a
villain as defendant to shelter himself behind the authority of his
lord[84], and it was difficult to prevent him from doing so, although
some attempts were made by the courts even in this case to distinguish
whether a person had been in possession as a dependant or not. But there
was absolutely nothing to prevent a villain from acting in every respect
like a free man if he was so minded and was not interrupted by his lord.
There was no need of any accessory action to make his acts complete and
legal[85]. Again we come to an anomaly: the slave is free against
everybody but his lord.
[Convention with the lord.]
Even against his lord the bondman had some standing ground for a civil
action. It has rightly been maintained, that he could implead his master
in consequence of an agreement with him. The assertion is not quite easy
to prove however, and has been put forward too sweepingly[86]. At first
sight it seems even that the old law books, i.e. those of Bracton and
his followers, teach the opposite doctrine. They deal almost exclusively
with the case of a feoffment made by the lord to a villain and his
heirs, and give the feoffee an action only on the ground of implied
manumission. The feoffor enfranchises his serf indirectly, even if he
does not say so in as many words, because he has spoken of the feoffee's
heirs, and the villain has no other heirs besides the lord[87]. The
action eventually proceeds in this case, because it is brought not by a
serf but by a freed man. One difficult passage in Bracton points another
way; it is printed in a foot-note[88]. There can be no doubt, that in
it Bracton is speaking of a covenant made by the lord not with a free
man or a freed man, but with a villain. This comes out strongly when it
is said, that the lord, and not the villain, has the assize against
intruders, and when the author puts the main question--is the feoffor
bound to hold the covenant or not? The whole drift of the quotation can
be understood only on the fundamental assumption that we have lord and
villain before us. But there are four words which militate against this
obvious explanation; the words '_sibi et heredibus suis_.' We know what
their meaning is--they imply enfranchisement and a freehold estate of
inheritance. They involve a hopeless contradiction to the doctrine
previously stated, a doctrine which might be further supported by
references to Britton, Fleta and Bracton himself[89]. In short, if we
accept them, we can hardly get out of confusion. Were our text of
Bracton much more definitely and satisfactorily settled than it is[90],
one would still feel tempted to strike them out; as it is we have a text
studded with interpolations and errors, and it seems quite certain that
'sibi et heredibus suis' has got into it simply because the compositor
of Tottell's edition repeated it from the conclusion of the sentence
immediately preceding, and so mixed up two cases, which were to be
distinguished by this very qualification. The four words are missing in
all the MSS. of the British Museum, the Bodleian and the Cambridge
University Library[91]. I have no doubt that further verification will
only confirm my opinion. On my assumption Bracton clearly distinguishes
between two possibilities. In one case the deed simply binds the lord as
to a particular person, in the other it binds him in perpetuity; and in
this latter case, as there ought not to be any heirs of a bondman but
the lord, bondage is annihilated by the deed. It is not annihilated when
one person is granted a certain privilege as to a particular piece of
land, and in every other respect the grantee and all his descendants
remain unfree[92]:--he has no freehold, but he has a special covenant to
fall back upon. This seems to lie at the root of what Bracton calls
privileged villainage by covenant as distinguished from villain
socage[93].
[Legal practice as to conventions.]
The reader may well ask whether there are any traces of such an
institution in practice, as it is not likely that Bracton would have
indulged in mere theoretical disquisitions on such an important point.
Now it would be difficult to find very many instances in point; the line
between covenant and enfranchisement was so easily passed, and an
incautious step would have such unpleasant consequences for landlords,
that they kept as clear as possible of any deeds which might indirectly
destroy their claims as to the persons of their villains[94]. On the
other hand, even privileged serfs would have a great difficulty in
vindicating their rights on the basis of covenant if they remained at
the same time under the sway of the lord in general. The difficulties on
both sides explain why Fleta and Britton endorse only the chief point of
Bracton's doctrine, namely, the implied manumission, and do not put the
alternative as to a covenant when heirs are not mentioned. Still I have
come across some traces in legal practice[95] of contracts in the shape
of the one discussed. A very interesting case occurred in Norfolk in
1227, before Martin Pateshull himself. A certain Roger of Sufford gave a
piece of land to one of his villains, William Tailor, to hold freely by
free services, and when Roger died, his son and heir William of Sufford
confirmed the lease. When it pleased the lord afterwards to eject the
tenant, this latter actually brought an assize of novel disseisin and
recovered possession. Bracton's marginal note to the case runs thus:
'Note, that the son of a villain recovered by an assize of novel
disseisin a piece of land which his father had held in villainage,
because the lord of the villain by his charter gave it to the son [i.e.
to the plaintiff], even without manumission[96].' The court went in this
case even further than Bracton's treatise would have warranted: the
villain was considered as having the freehold, and an assize of novel
disseisin was granted; but although such a treatment of the case was
perhaps not altogether sound, the chief point on which the contention
rested is brought out clearly enough. There was a covenant, and in
consequence an action, although there was no manumission; and it is to
this point that the marginal note draws special attention[97].
[Waynage.]
Again, we find in the beginning of Bracton's treatise a remark[98] which
is quite out of keeping with the doctrine that the villain had no
property to vindicate against his lord; it is contradicted by other
passages in the same book, and deserves to be considered the more
carefully on that account. Our author is enumerating the cases in which
the serf has an action against his lord. He follows Azo closely, and
mentions injury to life or to limb as one cause. Azo goes on to say that
a plaint may be originated by _intollerabilis injuria_, in the sense of
corporeal injury. Bracton takes the expression in a very different
sense; he thinks that economic ruin is meant, and adds, 'Should the lord
go so far as to take away the villain's very _waynage_, i.e. plough and
plough-team, the villain has an action.' It is true that Bracton's
text, as printed in existing editions, contains a qualification of this
remark; it is said that only serfs on ancient demesne land are possessed
of such a right. But the qualification is meaningless; the right of
ancient demesne tenants was quite different, as we shall see by-and-by.
The qualifying clause turns out to be inserted only in later MSS. of the
treatise, is wanting in the better MSS., and altogether presents all the
characters of a bad gloss[99]. When the gloss is removed, we come in
sight of the fact that Bracton in the beginning of his treatise admits a
distinct case of civil action on the part of a villain against his lord.
The remark is in contradiction with the Roman as well as with the
established English doctrine, it is not supported by legal practice in
the thirteenth century, it is omitted by Bracton when he comes to speak
again of the 'persona standi in judicio contra dominum[100].' But there
it is, and it cannot be explained otherwise than as a survival of a time
when some part of the peasantry at least had not been surrendered to the
lord's discretion, but was possessed of civil rights and of the power to
vindicate them. The notion that the peasant ought to be specially
protected in the possession of instruments of agricultural labour comes
out, singularly enough, in the passage commented upon, but it is not a
singular notion in itself. It occurs, as every one knows, in the clause
of the Great Charter, which says that the villain who falls into the
king's mercy is to be amerced 'saving his waynage.' We come across it
often enough in Plea Rolls in cases against guardians accused of having
wasted their ward's property. One of the special points in such cases
often is, that a guardian or his steward has been ruining the villains
in the ward's manors by destroying their waynage[101]. Of course, the
protection of the peasant's prosperity, guaranteed by the courts in
such trials, is wholly due to a consideration of the interests of the
ward; and the care taken of villains is exactly parallel to the
attention bestowed upon oaks and elms. Still, the notion of waynage is
in itself a peculiar and an important one, and whatever its ultimate
origin may be, it points to a civil condition which does not quite fall
within the lines of feudal law.
[Villains not to be devised.]
Another anomaly is supplied by Britton. After putting the case as
strongly as possible against serfs, after treating them as mere chattels
to be given and sold, he adds, 'But as bondmen are annexed to the
freehold of the lord, they are not devisable by testament, and therefore
Holy Church can take no cognisance of them in Court Christian, although
devised in testament.' (I. 197.) The exclusion of villains is not
peculiar to them; they share it with the greater part of landed
possessions. 'As all the courts of civil jurisdiction had been
prohibited from holding jurisdiction as to testamentary matters, and the
Ecclesiastical Courts were not permitted to exercise jurisdiction as to
any question relating to freehold, there was no court which could
properly take cognisance of a testamentary gift of land as such[102].'
The point to be noted is, that villains are held to be annexed to the
freehold, although in theory they ought to be treated as chattels. The
contradiction gives us another instance of the peculiar modification of
personal servitude by the territorial element. The serf is not a
colonus, he is not bound up with any particular homestead or plot of
land, but he is considered primarily as a cultivator under manorial
organisation, and for this reason there is a limitation on the lord's
power of alienating him. Let it be understood, however, that the
limitation in this case does not come before us as a remnant of
independent rights of the peasant. It is imposed by those interests of
the feudal suzerain and of the kin which precluded the possibility of
alienating land by devise[103].
[Villain tenure and villain service.]
An inquiry into the condition of villains would be altogether
incomplete, if it did not touch on the questions of villain tenure and
villain services. Both are intimately connected with personal status, as
may be seen from the very names, and both have to be very carefully
distinguished from it. I have had to speak of prescription as a source
of villainage. Opinions were very uncertain in this respect, and yet,
from the mere legal point of view, there ought not to have been any
difficulty about the matter. Bracton takes his stand firmly on the
fundamental difference between status and tenure in order to distinguish
clearly between serfs and free men in a servile position[104]. The
villain is a man belonging to his lord personally; a villain holding
(_villenagium_) is land held at the will of the lord, without any
certainty as to title or term of enjoyment, as to kind or amount of
services[105]. Serfs are mostly, though not necessarily, found on
villain land; it does not follow that all those seated on villain land
are serfs. Free men are constantly seen taking up a _villenagium_; they
do not lose by it in personal condition; they have no protection against
the lord, if he choose to alter their services or oust them from the
holding, but, on the other hand, they are free to go when they please.
There is still less reason to treat as serfs such free peasants as are
subjected to base services, i.e. to the same kind of services and
payments as the villains, but on certain conditions, not more and not
less. Whatever the customs may be, if they are certain, not only the
person holding by them but the plot he is using are free, and the
tenure may be defended at law[106].
Such are the fundamental positions in Bracton's treatise, and there can
be no doubt that they are borne out in a general way by legal practice.
But if from the general we turn to the particular, if we analyse the
thirteenth-century decisions which are at the bottom of Bracton's
teaching, we shall find in many cases notions cropping up, which do not
at all coincide with the received views on the subject. In fact we come
across many apparent contradictions which can be attributed only to a
state of fermentation and transition in the law of the thirteenth
century.
[Martin of Bestenover's case.]
Martin of Bestenover's case is used by Bracton in his treatise as
illustrating the view that tenure has no influence on status[107]. It
was a long litigation, or rather a series of litigations. Already in the
first year of King John's reign we hear of a final concord between John
of Montacute and Martin of Bestenover as to a hundred acres held by the
latter[108]. The tenant is ejected however, and brings an assize of mort
d'ancestor against Beatrice of Montacute, who, as holding in dower,
vouches her son John to warranty. The latter excepts against Martin as a
villain. A jury by consent of the parties is called in, and we have
their verdict reported three times in different records[109]. They say
that Martin's father Ailfric held of John Montacute's father a hundred
acres of land and fifty sheep besides, for which he had to pay 20_s._ a
year, to be tallaged reasonably, when the lord tallaged his subjects,
and that he was not allowed to give his daughter away in marriage before
making a fine to the lord according to agreement. We do not know the
decision of the judges in John's time, but both from the tenor of the
verdict and from what followed, we may conclude that Martin succeeded in
vindicating his right to the land. Proceedings break out again at the
beginning of Henry III's reign.
In 1219 John of Montacute is again maintaining that Martin is his
villain, in answer as it seems to an action _de libertate probanda_
which Martin has brought against him. The court goes back to the verdict
of the jury in John's time, and finds that by this verdict the land is
proved to be of base tenure, and the person to be free. The whole is
repeated again[110] on a roll of 1220; whether we have two decisions,
one of 1219 and the other of 1220, or merely two records of the same
decision, is not very clear, nor is it very important. But there are
several interesting points about this case. The decision in 1220 is
undoubtedly very strong on the distinction between status and tenure:
'nullum erat placitum in curia domini Regis de villenagio corporis
ipsius Martini nisi tantum de villenagio et consuetudinibus terre,' etc.
As to tenure, the court delivers an opinion which is entitled to special
consideration, and has been specially noticed by Bracton both in his
Note-book and in his treatise. 'If Martin,' say the judges on the roll
of 1219, 'wishes to hold the land, let him perform the services which
his father has been performing; if not, the lord may take the land into
his hands[111].' The same thing is repeated almost literally on the roll
of 1220. Bracton draws two inferences from these decisions. One is
suggested by the beginning of the sentence; 'If Martin wishes to hold
the land.' Both in the Note-book and in the treatise Bracton deduces
from it, that holding and remaining on the land depended on the wish of
Martin, who as a free man was entitled to go away when he pleased[112].
The judgment does not exactly say this, but as to the right of a free
person to leave the land there can be no doubt.
[Tenant right of free man holding in villainage.]
The second conclusion is, that if a free man hold in villainage by
villain services he cannot be ejected by the lord against his will,
provided he is performing the services due from the holding. What
Bracton says here is distinctly implied by the decisions of 1219 and
1220, which subject the lord's power of dealing with the land to a
condition--non-performance of services[113]. There can be no question as
to the importance of such a view; it contains, as it were, the germ of
copyhold tenure[114]. It places villainage substantially on the same
footing as freehold, which may also be forfeited by discontinuance of
the services, although the procedure for establishing a forfeiture in
that case would be a far more elaborate one. And it must be understood
that Bracton's deduction by no means rests on the single case before us.
He appeals also to a decision of William Raleigh, who granted an assize
of mort d'ancestor to a free man holding in villainage[115].
Unfortunately the original record of this case has been lost. The
decision in a case of 1225 goes even further. It is an assize of novel
disseisin brought by a certain William the son of Henry against his lord
Bartholomew the son of Eustace. The defendant excepts against the
plaintiff as his villain; the court finds, on the strength of a verdict,
that he is a villain, and still they decide that William may hold the
land in dispute, if he consents to perform the services; if not, he
forfeits his land[116]. Undoubtedly the decision before us is quite
isolated, and it goes against the rules of procedure in such cases. Once
the exception proved, nothing ought to have been said as to the
conditions of the tenure. Still the mistake is characteristic of a state
of things which had not quite been brought under the well-known hard and
fast rule. And the best way to explain it is to suppose that the judges
had in their mind the more familiar case of free men holding in
villainage, and gave decision in accordance with Martin of Bestenover
_v._ Montacute, and the case decided by Raleigh[117]. All these
instances go clean against the usually accepted doctrine, that holding
in villainage is the same as holding at the will of the lord: the
celebrated addition 'according to the custom of the manor' would quite
fit them. They bring home forcibly one main consideration, that although
in the thirteenth century the feudal doctrine of non-interference of the
state between lord and servile tenantry was possessed of the field, its
victory was by no means complete. Everywhere we come across remnants of
a state of things in which one portion at least of the servile class had
civil rights as well as duties in regard to the lord.
[The test of services.]
Matters were even more unsettled as to customs and services in their
relation to status and tenure. What services, what customs are
incompatible with free status, with free tenure? Is the test to be the
kind of services or merely their certainty? Bracton remarks that the
payment of merchet, i.e. of a fine for giving away one's daughter to be
married, is not in keeping with personal freedom. But he immediately
puts in a kind of retractation[118], and indeed in the case of Martin of
Bestenover it was held that the peasant was free although paying
merchet. To tenure, merchet, being a personal payment, should have no
relation whatever. In case of doubt as to the character of the tenure,
the inquiry ought to have been entirely limited to the question whether
rents and services were certain or not[119], because it was established
that even a free tenement could be encumbered with base services. In
reality the earlier practice of the courts was to inquire of what
special kind the services and customs were, whether merchet and fine for
selling horses and oxen had been paid, whether a man was liable to be
tallaged at will or bound to serve as reeve, whether he succeeded to his
tenancy by 'junior right' (the so-called Borough English rule), and the
like.
All this was held to be servile and characteristic of villainage[120]. I
shall have to discuss the question of services and customs again, when I
come to the information supplied by manorial documents. It is sufficient
for my present purpose to point out that two contradictory views were
taken of it during the thirteenth century; 'certain or uncertain?' was
the catchword in one case; 'of what kind?' in the other. A good
illustration of the unsettled condition of the law is afforded by the
case Prior of Ripley _v._ Thomas Fitz-Adam. According to the Prior, the
jurors called to testify as to services and tenures had, while admitting
the payment of tallage and merchet, asked leave to take the advice of
Robert Lexington, a great authority on the bench, whether a holding
encumbered by such customs could be free[121].
The subject is important, not only because its treatment shows to what
extent the whole law of social distinctions was still in a state of
fermentation, but also because the classification of tenures according
to the nature of customs may afford valuable clues to the origin of
legal disabilities in economic and political facts. The plain and formal
rule of later law, which is undoubtedly quite fitted to test the main
issue as to the power of the lord, is represented in earlier times by a
congeries of opinions, each of which had its foundation in some matter
of fact. We see here a state of things which on the one hand is very
likely to invite an artificial simplification, by an application of some
one-sided legal conception of serfdom, while on the other hand it seems
to have originated in a mixture and confusion of divers classes of serfs
and free men, which shaded off into each other by insensible degrees.
[The procedure in questions of _status_.]
The procedure in trials touching the question of status was decidedly
favourable to liberty. To begin with, only one proof was accepted as
conclusive against it--absolute proof that the kinsfolk of the person
claimed were villains by descent[122]. The verdict of a jury was not
sufficient to settle the question[123], and a man who had been refused
an assize in consequence of the defendant pleading villainage in bar
had the right notwithstanding such decision to sue for his liberty. When
the proof by kinship came on, two limitations were imposed on the party
maintaining servitude: women were not admitted to stand as links in the
proof because of their frailty and of the greater dignity of a man, and
one man was not deemed sufficient to establish the servile condition of
the person claimed[124]. If the defendant in a plea of niefty, or a
plaintiff in an action of liberty, could convincingly show that his
father or any not too remote ancestor had come to settle on the lord's
land as a stranger, his liberty as a descendant was sufficiently
proved[125]. In this way to prove personal villainage one had to prove
villainage by birth. Recognition of servile status in a court of record
and reference to a deed are quite exceptional.
The coincidence in all these points against the party maintaining
servitude is by no means casual; the courts proclaimed their leaning 'in
favour of liberty' quite openly, and followed it in many instances
besides those just quoted. It was held, for instance, that in defending
liberty every means ought to be admitted. The counsel pleading for it
sometimes set up two or three pleas against his adversary and declined
to narrow his contention, thus transgressing the rules against duplicity
of plea 'in favour of liberty[126].' In the case of a stranger settling
on the land, his liberty was always assumed, and the court declined to
construe any uncertainty of condition against him[127]. When villainage
was pleaded in bar against a person out of the power of the lord, the
special question was very often examined by a jury from the place where
the person excepted to had been lately resident, and not by a jury from
the country where he had been born[128]. This told against the lord, of
course, because the jurors might often have very vague notions as to the
previous condition of their new fellow-countryman[129].
It would be impossible to say in what particular cases this partiality
of the law is to be taken as a consequence of enlightened and
humanitarian views making towards the liberation of the servile class,
and in what cases it may be traced to the fact that an original element
of freedom had been attracted into the constitution of villainage and
was influencing its legal development despite any general theory of a
servile character. There is this to be noticed in any case, that most of
the limitations we have been speaking of are found in full work at the
very time when villainage was treated as slavery in the books. One
feature, perhaps the most important of all, is certainly not dependent
on any progress of ideas: however complete the lord's power over the
serf may have been, it was entirely bound up with the manorial
organisation. As soon as the villain had got out of its boundaries he
was regularly treated as a free man and protected in the enjoyment of
liberty so long as his servile status had not been proved[130]. Such
protection was a legal necessity, a necessary complement to the warranty
offered by the state to its real free men. There could be no question of
allowing the lord to seize on any person whom he thought fit to claim as
his serf. And, again, if the political power inherent in the manor gave
the lord _A_ great privileges and immunities as to the people living
under his sway, this same manorial power began to tell against him as
soon as such people had got under the sway of lord _B_ or within the
privileged town _C_. The dependant could be effectually coerced only if
he got back to his unfree nest again or through the means of such
kinsfolk as he had left in the unfree nest[131]. And so the settlement
of disputed rights connected with status brings home forcibly two
important positions: first the theory of personal subjection is modified
in its legal application by influence in favour of liberty; and next
this influence is not to be traced exclusively to moral and intellectual
progress, but must be accounted for to a great extent by peculiarities
in the political structure of feudalism.
[Enfranchisement.]
One point remains to be investigated in the institution of villainage,
namely modes in which a villain might become free. I have had occasion
to notice the implied manumission which followed from a donation of land
to a bondman and his heirs, which in process of time was extended to all
contracts and concords between a lord and his serf. A villain was freed
also, as is well known, by remaining for a year and a day on the
privileged soil of a crown manor or a chartered town[132]. As to direct
manumission, its usual mode was the grant of a charter by which the lord
renounced all rights as to the person of his villain. Traces of other
and more archaic customs may have survived in certain localities, but,
if so, they were quite exceptional. Manumission is one of the few
subjects touched by Glanville in the doctrine of villainage, and he is
very particular as to its conditions and effects. He says that a serf
cannot buy his freedom, because he has no money or goods of his own. His
liberty may be bought by a third person however, and his lord may
liberate him as to himself, but not as regards third persons. There
seems to be a want of clearness in, if not some contradiction between
these two last statements, because one does not see how manumission by
a stranger could possibly be wider than that effected by the lord.
Again, the whole position of a freed man who remains a serf as regards
everybody but his lord is very difficult to realize, even if one does
not take the later view into account, which is exactly the reverse,
namely that a villain is free against everybody but his lord. I may be
allowed to start a conjecture which will find some support in a later
chapter, when we come to speak about the treatment of freedom and
serfdom in manorial documents. It seems to me that Glanville has in mind
liberation _de facto_ from certain duties and customs, such as
agricultural work for instance, or the payment of merchet. Such
liberation would not amount to raising the status of a villain, although
it would put him on a very different footing as to his lord[133].
However this may be, if from Glanville's times we come down to Bracton
and to his authorities, we shall find all requirements changed, but
distinct traces of the former view still lingering in occasional
decisions and practices. There are frequent cases of villains buying
their freedom with their own money[134], but the practice of selling
them for manumission to a stranger is mentioned both in Bracton's
Treatise[135] and in his Notebook. A decision of 1226 distinctly
repeats Glanville's teaching that a man may liberate his serf as to
himself and not as to others. The marginal note in the Note-book very
appropriately protests against such a view, which is certainly quite
inconsistent with later practice[136]. Such flagrant contradictions
between authorities which are separated barely by some sixty or seventy
years, and on points of primary importance too, can only tend to
strengthen the inference previously drawn from other facts--that the law
on the subject was by no means square and settled even by the time of
Bracton, but was in every respect in a state of transition.