THE SERVILE PEASANTRY OF MANORIAL RECORDS.
[Manorial documents.]
It would be as wrong to restrict the study of villainage to legal
documents 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 class of such documents 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 classes 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 institution which recurs in many other
cases; are we entitled 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 constitutive 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 classification.]
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 class. If we look only to the unfree villagers, we
shall notice that all the varieties of denomination can easily be
arranged into four classes: one of these classes 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, _villanus_. 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 classes mentioned and distinguished by Bracton are
covered by it. The common opposition is between _villanus_ and _libere
tenens_, not between _villanus_ and _liber homo_. 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 mass a population consisting of two different classes,
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 classical derivation. But when it is used in
opposition to other terms, it stands exactly as _villanus_, 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
_villanus_ 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 _villanus_, 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 passage: _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
_villanus_ 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 _villanus_ 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 noble among the peers. Such pedigrees were
drawn up to prevent any fraudulent assertion 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 class--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 _villanus_ 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 documents they
are on the whole less frequent than the terms of the first class, 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
_villanus_ 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 documents 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
_villanus_, 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 class 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 quantity 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 class. 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 _villanus_, the Latin record term,
illustrates 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 classification 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.
But the most important fact remains, that the whole system, though
admitting theoretically the difference between personal freedom and
personal subjection, works itself out into uniformity on the ground of
unfree tenure. Freemen holding in villainage and born villains get mixed
up under the same names. The fact has its two sides. On the one hand it
detracts from the original rights of free origin, on the other it
strengthens the element of order and legality in the relations between
lord and peasant. The peasants are _custumarii_ at the worst--they work
by custom, even if custom is regulated by the lord's power. In any case,
even a mere analysis of terminological distinctions leads to the
conclusion that the simplicity and rigidity of legal contrasts was
largely modified by the influence of historical tradition and practical
life.
[Rights of the lord.]
[Classification.]
Our next object must be to see in what shape the rights of the lord are
presented by manorial documents. All expressions of his power may be
considered under three different heads, as connected with one of the
three fundamental aspects of the manorial relation. There were customs
and services clearly derived from the _personal subjection of the
villain_, which had its historical root in slavery. Some burdens again
lay on the _land_, and not on the _person_. And finally, manorial
exactions could grow from the _political sway_ conferred by feudal
lordship. It may be difficult to distinguish in the concrete between
these several relations, and the constant tendency in practice must have
been undoubtedly directed towards mixing up the separate threads of
subjection. Still, a general survey of manorial rights has undoubtedly
to start from these fundamental distinctions.
[Sale of villains.]
There has been some debate on the question whether the lord could sell
his villains. It has been urged that we have no traces of such
transactions during the feudal period, and that therefore personal
serfdom did not exist even in law[293]. It can be pointed out, on the
other side, that deeds of sale conveying villains apart from their
tenements, although rare, actually exist. The usual form of
enfranchisement was a deed of sale, and it cannot be argued that this
treatment of manumission is a mere relic of former times, because both
the Frank and the Saxon manumissions of the preceding period assume a
different shape; they are not effected by sale. The existing evidence
entitles one to maintain that a villain could be lawfully sold, with all
his family, his _sequela_, but that in practice such transactions were
uncommon[294]. The fact is a most important one in itself; the whole
aspect of society and of its work would have been different if the
workman had been a saleable commodity passing easily from hand to hand.
Nothing of the kind is to be noticed in the medieval system. There is no
slave market, and no slave trade, nothing to be compared with what took
place in the slave states of North America, or even to the restricted
traffic in Russia before the emancipation. The reason is a curious one,
and forcibly suggested by a comparison between the cases when such trade
comes into being, and those when it does not. The essential condition
for commercial transfer is a protected market, and such a market existed
more or less in every case when men could be bought and sold. An
organised state of some kind, however slightly built, is necessary as a
shelter for such transfer. The feudal system proved more deficient in
this respect than very raw forms of early society, which make up for
deficiencies in State protection by the facilities of acquiring slaves
and punishing them. The landowner had enough political independence to
prevent the State from exercising an efficient control over the
dependent population, and for this very reason he had to rely on his own
force and influence to keep those dependents under his sway. Personal
dependence was locally limited, and not politically general, if one may
use the expression. It was easy for the villain to step out of the
precincts of bondage; it was all but impossible for the lord to treat
his man as a transferable chattel. The whole relation got to be
regulated more by internal conditions than by external pressure, by a
customary _modus vivendi_, and not by commercial and state-protected
competition. This explains why in some cases political progress meant a
temporary change for the worse, as in some parts of Germany and in
Russia: the State brought its extended influence to bear in favour of
dependence, and rendered commercial transactions possible by its
protection. In most cases, however, the influence of moral, economical,
and political conceptions made itself felt in the direction of freedom,
and we have seen already that in England legal doctrine created a
powerful check on the development of servitude by protecting the actual
possession of liberty, and throwing the burden of proof in questions of
status on the side contending against such liberty.
[Merchet.]
But not all the consequences of personal servitude could be removed in
the same way by the conditions of actual life. Of all manorial exactions
the most odious was incontestably the _merchetum_, a fine paid by the
villain for marrying his daughter[295]. It was considered as a note of
servile descent, and the man free by blood was supposed to be always
exempted from it, however debased his position in every other respect.
Our authorities often allude to this payment by the energetic expression
'buying one's blood' (servus de sanguine suo emendo). It seems at first
sight that one may safely take hold of this distinction in order to
trace the difference between the two component parts of the villain
class. In the status of the socman, developed from the law of Saxon
free-men, there was usually nothing of the kind. The _maritagium_ of
military tenure of course has nothing in common with it, being paid only
by the heiress of a fee, and resulting from the control of the military
lord over the land of his retainer. The _merchetum_ must be paid for
every one of the daughters, and even the granddaughters of a villain; it
had nothing to do with succession, and sprang from personal subjection.
When the bride married out of the power of the lord a new element was
brought to bear on the case: the lord was entitled to a special
compensation for the loss of a subject and of her progeny[296]. When the
case is mentioned in manorial documents, the fine gets heightened
accordingly, and sometimes it is even expressly stated that an arbitrary
payment will be exacted. The fine for incontinence naturally connects
itself with the merchet, and a Glastonbury manorial instruction enjoins
the Courts to present such cases to the bailiffs; the lord loses his
merchet from women who go wrong and do not get married[297].
[Origin and modifications of merchet.]
Such is the merchet of our extents and Court rolls. As I said, it has
great importance from the point of view of social history. Still it
would be wrong to consider it as an unfailing test of _status_. Although
it is often treated expressly as a note of serfdom[298], some facts
point to the conclusion that its history is a complex one. In the first
place this merchet fine occurs in the extents sporadically as it were.
The Hundred Rolls, for instance, mention it almost always in
Buckinghamshire, and in some hundreds of Cambridgeshire. In other
hundreds of this last county it is not mentioned. However much we lay to
the account of casual omissions of the compilers, they are not
sufficient to explain the general contrast. It would be preposterous to
infer that in the localities first mentioned the peasants were one and
all descended from slaves, and that in those other localities they were
one and all personally free. And so we are driven to the inference, that
different customs prevailed in this respect in places immediately
adjoining each other, and that not all the feudal serfs descended from
Saxon slaves paid merchet.
If, on the one hand, not all the serfs paid merchet, on the other there
is sufficient evidence to show that it was paid in some cases by free
people. A payment of this kind was exacted sometimes from free men in
villainage, and even from socage tenants. I shall have to speak of this
when treating of the free peasantry; I advert to the fact now in order
to show that the most characteristic test of personal servitude does not
cover the whole ground occupied by the class, and at the same time
spreads outside of its boundary.
This observation leads us to several others which are not devoid of
importance. As soon as the notion arose that personal servitude was
implied by the payment of merchet,--as soon as such a notion got
sanctioned by legal theory, the fine was extended in practice to cases
where it did not apply originally. We have direct testimony to the
effect that feudal lords introduced it on their lands in places where it
had never been paid[299], and one cannot help thinking that such
administrative acts as the survey of 1279-1280, the survey represented
by the Hundred Rolls, materially helped such encroachments. The juries
made their presentments in respect of large masses of peasantry, under
the preponderating influence of the gentry and without much chance for
the verification of particular instances. The description was not false
as a whole, but it was apt to throw different things into the same
mould, and to do it in the interest of landed proprietors. Again, the
variety of conditions in which we come across the merchet, leads us to
suppose that this term was extended through the medium of legal theory
to payments which differed from each other in their very essence: the
commutation of the 'jus primae noctis,' the compensation paid to the
lord for the loss of his bondwoman leaving the manor, and the fine for
marriage to be levied by the township or the hundred, were all thrown
together. Last, but not least, the vague application of this most
definite of social tests corroborates what has been already inferred
from terminology, namely, that the chief stress was laid in all these
relations, not on legal, but on economic distinctions. The
stratification of the class and the determination of the lord's rights
both show traits of legal status, but these traits lose in importance in
comparison with other features that have no legal meaning, or else they
spread over groups and relations which come from different quarters and
get bound up together only through economic conditions.
[Servile customs.]
The same observations hold good in regard to other customs which come to
be considered as implying personal servitude[300]. Merchet was the most
striking consequence of unfreedom, but manorial documents are wont to
connect it with several others. It is a common thing to say that a
villain by birth cannot marry his daughter without paying a fine, or
permit his son to take holy orders, or sell his calf or horse, that he
is bound to serve as a reeve, and that his youngest son succeeds to the
holding after his death[301]. This would be a more or less complete
enumeration, and I need not say that in particular cases sometimes one
and sometimes another item gets omitted. The various pieces do not fit
well together: the prohibition against selling animals is connected with
disabilities as to property, and not derived directly from the personal
tie[302]; as for the rule of succession, it testifies merely to the
fact that the so-called custom of Borough English was most widely spread
among the unfree class. The obligation of serving as a reeve or in any
other capacity is certainly derived from the power of a lord over the
person of his subject; he had it always at his discretion to take his
man away from the field, and to employ him at pleasure in his service.
Lastly, the provision that the villain may not allow his son to receive
holy orders stands on the same level as the provision that he may not
give his daughter in marriage outside the manor: either of these
prohibited transactions would have involved the loss of a subject.
[Control over the movements of the peasantry.]
We must place in the same category all measures intended to prevent
directly or indirectly the passage of the peasantry from one place to
the other. The instructions issued for the management of the Abbot of
Gloucester's estates absolutely forbid the practice of leaving the
lord's land without leave[303]. Still, emigration from the manor could
not be entirely stopped; from time to time the inhabitants wandered away
in order to look out for field-work elsewhere, or to take up some craft
or trade. In this case they had to pay a kind of poll-tax (chevagium),
which was, strictly speaking, not rent: very often it was very
insignificant in amount, and was replaced by a trifling payment in kind,
for instance, by the obligation to bring a capon once a year[304]. The
object was not so much to get money as to retain some hold over the
villain after he had succeeded in escaping from the lord's immediate
sway. There are no traces of a systematic attempt to tax and ransom the
work of dependents who have left the lord's territory--nothing to match
the thorough subjection in which they were held while in the manor. And
thus the lord was forced in his own interest to accept nominal payments,
to concentrate his whole attention on the subjects under his direct
control, and to prevent them as far as possible from moving and leaving
the land. In regulations for the management of estates we often find
several paragraphs which have this object in view. Sometimes the younger
men get leave to work outside the lord's possessions, but only while
their father remains at home and occupies a holding. Sometimes, again,
the licence is granted under the condition that the villain will remain
in one of his lord's tithings[305], an obligation which could be
fulfilled only if the peasant remained within easy reach of his
birth-place. Special care is taken not to allow the villains to buy free
land in order to claim their freedom on the strength of such free
possession[306]. Every kind of personal commendation to influential
people is also forbidden[307].
Notwithstanding all these rules and precepts, every page of the
documents testifies to frequent migrations from the manors in opposition
to the express will of the landowners. The surveys tell of serfs who
settle on strange land even in the vicinity of their former home[308].
It is by no means exceptional to find mention of enterprising landlords
drawing away the population from their neighbours' manors[309]. The
fugitive villain and the settler who comes from afar are a well-marked
feature of this feudal society[310].
[Limitations as to property.]
The limitations of rights of property have left as distinct traces in
the cartularies as the direct consequences of personal unfreedom. These
two matters are connected by the principle that everything acquired by
the slave is acquired by his master; and this principle finds both
expression and application in our documents. On the strength of it the
Abbot of Eynsham takes from his peasant land which had been bought by
the latter's father[311]. The case dates from the second half of the
fourteenth century, from a time when the social conflict had become
particularly acute in consequence of the Black Death, and of the
consequent attempts on the part of landlords to stretch their rights to
the utmost. But we have a case from the thirteenth century: the Prior of
Barnwell quotes the above-mentioned rule in support of a confiscation of
his villain's land[312]. In both instances the principle is laid down
expressly, but in other cases peasants were deprived of their property
without any formal explanation.
[Heriot.]
Of course, one must look upon such treatment as exceptional. But an
important and constant result of the general conception is to be found
in some of the regular feudal exactions. The villain has no property of
his own, and consequently he cannot transmit property. Strictly
speaking, there is no inheritance in villainage. As a matter of fact the
peasant's property did not get confiscated after his death, but the
heirs had to surrender a part of it, sometimes a very considerable one.
A difference is made between chattels and land. As to the first, which
are supposed to be supplied by the lord, the duty of the heir is
especially onerous. On the land of the Bishopric of Lichfield, for
instance, he has to give up as _heriot_ the best head of horned cattle,
all horses, the cart, the caldron, all woollen cloth, all the bacon, all
the swine except one, and all the swarms of bees[313]. The villains of
St. Alban's have to give the best head of cattle, and all house
furniture[314]. But in most cases only the best beast is taken, and if
there be no cattle on the tenement, then money has to be paid
instead[315]. The Cartulary of Battle is exceptionally lenient as to one
of the Abbey's manors[316]: it liberates from all duty of the kind those
who do not own any oxen. It sometimes happens, on the other hand, that
the payment is doubled; one beast is taken from the late occupier by way
of heriot, and the other from his widow for the life interest which is
conceded to her after the death of her husband[317]. Such 'free bench'
is regulated very differently by different customs. The most common
requirement is, that the widow may not marry again and must remain
chaste. In Kent the widow has a right to half the tenement for life,
even in case of a second marriage; in Oxfordshire, if she marries
without the lord's leave, she is left in possession only during a year
and a day[318].
In all these instances, when a second payment arises alongside of the
heriot, such a payment receives also the name of heriot because of this
resemblance, although the two dues are grounded on different claims. The
true heriot is akin in name and in character to the Saxon
'here-geat'--to the surrender of the military outfit supplied by the
chief to his follower. In feudal times and among peasants it is not the
war-horse and the armour that are meant, ox and harness take their
place, but the difference is not in the principle, and one may even
catch sometimes a glimpse of the process by which one custom shades off
into the other. On the possessions of St. Mary of Worcester, for
instance, we find the following enactment[319]: Each virgate has to give
three heriots, that is a horse, harness, and two oxen; the half-virgate
two heriots, that is a harnessed horse and one ox; other holdings give
either a horse or an ox. In such connexion the payment has nothing
servile about it, and simply appears as a consequence of the fact or
assumption that the landlord has provided his peasant with the necessary
outfit for agricultural work. And still the heriot is constantly
mentioned along with the merchet as a particularly base payment, and
though it might fall on the succession of a free man holding in
villainage, it is not commonly found on free land. The fact that this
old Saxon incident of dependence becomes in the feudal period a mark of
servile tenure, is a fact not without significance.
[Relief.]
It is otherwise with the _relief_ (relevium), the duty levied for the
resumption of the holding by the heir: it extends equally to military
tenure and to villainage. Although the heriot and relief get mixed up
now and then, their fundamental difference is realised by the great
majority of our documents and well grounded on principle. In one case
the chattels are concerned, in the other the tenement; one is primarily
a payment in kind, the other a money-fine. As to the amount of the
relief the same fluctuations may be traced as in the case of the heriot.
The most common thing is to give a year's rent; but in some instances
the heir must settle with the lord at the latter's will, or ransom the
land as a stranger, that is by a separate agreement in each single
case[320]. Fixed sums occur also, and they vary according to the size
and quality of the holding[321].
[Political rights.]
On the boundary between personal subjection and political subordination
we find the liability of the peasantry to pay _tallage_. It could be
equally deduced from the principle that a villain has nothing of his
own and may be exploited at will by his master or from the political
grant of the power of taxation to the representative of feudal
privilege. The payment of arbitrary tallage is held during the
thirteenth century to imply a servile status[322]. Such tallage at will
is not found very often in the documents, although the lord sometimes
retained his prerogative in this respect even when sanctioning the
customary forms of renders and services. Now and then it is mentioned
that the tallage is to be levied once a year[323], although the amount
remains uncertain.
As a holder of political power the lord has a right to inflict fines and
amercements on transgressors[324]. The Court-rolls are full of entries
about such payments, and it seems that one of the reasons why very great
stress was laid on attendance at the manorial Courts was connected with
the liability to all sorts of impositions that was enforced by means of
these gatherings. Tenants had to attend and to make presentments, to
elect officers, and to serve on juries; and in every case where there
was a default or an irregularity of any kind, fines flowed into the
lord's exchequer.
Lastly, we may classify under the head of political exactions,
monopolies and privileges such as those which were called _banalites_ in
France: they were imposed on the peasantry by the strong hand, although
there was no direct connexion between them and the exercise of any
particular function of the State. English medieval documents often refer
to the privileged mill, to which all the villains and sometimes the
freemen of the Soke were bound to bring their corn[325]; there is also
the manorial fold in which all the sheep of the township had to be
enclosed[326]. In the latter case the landlord profited by the dung for
manuring his land. Special attention was bestowed on supervising the
making of beer: Court-rolls constantly speak of persons fined for
brewing without licence. Every now and then we come across the wondrous
habit of collecting all the villagers on fixed days and making them
drink _Scotale_[327], that is ale supplied by the lord--for a good
price, of course.
[Villain tenure.]
Let us pass now to those aspects of manorial usage which are directly
connected with the mode of holding land. I may repeat what I said
before, that it would be out of the question to draw anything like a
hard and fast line between these different sides of one subject. How
intimately the personal relation may be bound up with the land may be
gathered, among other things, from the fact that there existed an oath
of fealty which in many places was obligatory on villains when entering
into possession of a holding. This oath, though connected with tenure,
bears also on the personal relation to the lord[328]. The oath of fealty
taken by the tenant in villainage differed from that taken by the
freeholder in that it contained the words, 'I will be justified by you
in body and goods'; and again the tenant in villainage, though he swore
fealty, did no homage; the relationship between him and his lord was not
a merely feudal relationship; the words, 'I become your man,' would have
been out of place, and there could be no thought of the lord kissing his
villain. But however intimate the connexion between both aspects of the
question, in principle the tenure was quite distinct from the status,
and could influence the condition of people who were personally free
from any taint of servility.
The legal definition of villainage as unfree tenure does not take into
account the services or economic quality of the tenure, and lays stress
barely on the precarious character of the holding[329]. The owner may
take it away when he pleases, and alter its condition at will. The
Abingdon Chronicle tells us[330] that before the time of Abbot Faritius
it was held lawful on the manors of the Abbey to drive the peasants away
from their tenements. The stewards and bailiffs often made use of this
right, if anybody gave them a fee out of greed, or out of spite against
the holder. Nor was there any settled mode of succession, and when a man
died, his wife and children were pitilessly thrown out of their home in
order to make place for perfect strangers. An end was put to such a
lawless condition of things by Faritius' reforms: he was very much in
want of money, and found it more expedient to substitute a settled
custom for the disorderly rule of the stewards. But he did not renounce
thereby any of his manorial rights: he only regulated their application.
The legal feature of base tenure--its insecurity--was not abolished on
the Abingdon estates. Our documents sometimes go the length of
explaining that particular plots are held without any sort of security
against dispossession. We find such remarks in the Warwickshire Hundred
Rolls for instance[331]. Sometimes the right is actually enforced: in
the Cartulary of Dunstable Priory we have the record of an exchange
between two landlords, in consequence of which the peasants were
removed from eight hides of land by one of the contracting parties[332].
[Control of the lord over the villain's land.]
The villain is in no way to be considered as the owner of the plot of
land he occupies; his power of disposing of it is stinted accordingly,
and he is subjected to constant control from the real owner. He cannot
fell timber; oaks and elms are reserved to the lord[333]. He cannot
change the cultivation of the land of his own accord; it would be out of
the question, for instance, to turn a garden-close into arable without
asking for a licence[334]. He is bound to keep hedges and ditches in
good order, and is generally responsible for any deterioration of his
holding. When he enters into possession of it, he has to find a pledge
that he will perform his duties in a satisfactory manner[335]. There can
be no thought of a person so situated alienating the land by an act of
his own will; he must surrender it into the hand of the lord, and the
latter grants it to the new holder after the payment of a fine. The same
kind of procedure is followed when a tenement is passed to the right
heir in the lifetime of the former possessor[336]. A default in paying
rents or in the performance of services, and any other transgression
against the interests of the lord, may lead to forfeiture[337]. The lord
takes also tenements into his hand in the way of escheat, in the absence
of heirs. Court-rolls constantly mention plots which have been resumed
in this way by the lord[338]. The homage has to report to the steward as
to all changes of occupation, and as to the measures which are thought
necessary to promote the interests of the landowner and of the
tenantry[339].
[Tenure by rent considered free; tenure by agricultural work, servile.]
As to the treatment of tenure in manorial documents, it is to be noticed
that a distinction which has no juridical meaning at all becomes all
important in practice. At common law, as has been said repeatedly, the
contrast between free land and servile land resolves itself into a
contrast between precarious occupation and proprietary right. This
contrast is noticed occasionally and as a matter of legal principle by
manorial documents[340] quite apart from the consequences which flow
from it, and of which I have been speaking just now. But in actual life
this fundamental feature is not very prominent; all stress is laid on
the distinction between land held by rent and land held by labour. In
the common phraseology of surveys and manorial rolls, the tenements on
which the rent prevails over labour are called 'free tenements,' and
those on the contrary which have to render labour services, bear the
names of 'servile holdings.' This fact is certainly not to be treated
lightly as a mere result of deficient classification or terminology. It
is a very important one and deserves to be investigated carefully.
In the ancient survey of Glastonbury Abbey, compiled in 1189, the
questions to be answered by the jury are enumerated in the following
way: 'Who holds freely, and how much, and by what services, and by whose
warrant, and from what time? Has land which ought to perform work been
turned into free land in the time of Bishop Henry, or afterwards? By
whose warrant was this change made, and to what extent is the land free?
Is the demesne land in cultivation, or is it given away in free tenure
or villain tenure; is such management profitable, or would it be better
if this land was taken back by the lord[341]?' The contrast is between
land which provides labour and land which does not; the former is
unfree, and villain tenure is the tenure of land held by such services;
portions of the demesne given away freely may eventually be reclaimed.
The scheme of the survey made in answer to these questions is entirely
in keeping with this mode of classification. All holdings are considered
exclusively from the economic point of view; the test of security and
precarious occupation is never applied. It is constantly noticed, on the
other hand, whether a plot pays rent or provides labour, whether it can
be transferred from one category into the other, on what conditions
demesne land has been given to peasants, and whether it is expedient to
alter them. Let us take the following case as an instance: John Clerk
had in the time of Bishop Henry one virgate in Domerham and holds it
now, and another virgate in Stapelham for ten shillings. When he farmed
the Domerham manor he left on his own authority the virgate in Stapelham
and took half a virgate in Domerham, as it was nearer. This half
virgate ought to work and is now free. And the virgate in Stapelham,
though it was free formerly, has to work now, after the exchange[342].
The opposition is quite clear, and entirely suited to the list of
questions addressed to the jury. The meaning of the terms _free_ and
_freedom_ is also brought out by the following example. Anderd Budde
holds half a virgate of demesne land, from the time of Bishop Henry, by
the same services as all who hold so much. The village has to render as
gift twenty-nine shillings and six pence. Six pence are wanting (to
complete the thirty shillings?) because Anderd holds more freely than
his ancestors used to[343].
Such phraseology is by no means restricted to one document or one
locality. In a Ramsey Cartulary we find the following entry in regard to
a Huntingdonshire manor: 'Of seven hides one is free; of the remaining
six two virgates pay rent. The holder pays with the villains; he pays
merchet and joins in the boon-work as the villains. The remaining five
hides and three virgates are in pure villainage[344].' The gradation is
somewhat more complex here than in the Somersetshire instance: besides
free land and working land we have a separate division for mixed cases.
But the foundation is the same in both documents. Earlier surveys of
Ramsey Abbey show the same classification of holding into free and
working virgates (_liberae_, _ad opus_[345]).
[Terra ad furcam et flagellum.]
In opposition to free service, that is rent, we find both the
_villenagium_[346] and the _terra consuetudinaria_ or _customaria_[347],
burdened with the usual rural work. Sometimes the document points out
that land has been freed or exempted from the common duties of the
village[348]; in regard to manorial work the village formed a compact
body. The notion which I have been explaining lies at the bottom of a
curious designation sometimes applied to base tenure in the earlier
documents of our period--_terra ad furcam et flagellum_[349], fleyland.
The Latin expression has been construed to mean land held by a person
under the lord's jurisdiction, under his gallows and his whip, but this
explanation is entirely false. The meaning is, that a base holding is
occupied by people who have to work with pitchfork and flail, and may-be
other instruments of agriculture[350], instead of simply paying rent. In
view of such a phraseology the same tenement could alternately be
considered as a free or a servile one, according to its changing
obligations[351]. Some surveys insert two parallel descriptions of
duties which are meant to fit both eventualities; when the land is _ad
opus_, it owes such and such services; when it is _ad censum_, it pays
so much rent. It must be added, that in a vast majority of cases
rent-paying land retains some remnants of services, and, _vice versa_,
land subjected to village-work pays small rents[352]; the general
quality of the holding is made to depend on the prevailing character of
the duties.
The double sense in which the terms 'free tenure' and 'servile tenure'
are used should be specially noticed, because it lays bare the intimate
connexion between the formal divisions of feudal law and the conditions
of economic reality. I have laid stress on the contrast between the two
phraseologies, but, of course, they could not be in use at the same time
without depending more or less on each other. And it is not difficult to
see, that the legal is a modification of the economic use of terms, that
it reduces to one-sided simplicity those general facts which the
evidence of every day life puts before us in a loose and complex manner:
that land is really free which is not placed in a constant working
submission to the manor, in constant co-operation with other plots,
similarly arranged to help and to serve in the manor. However heavy the
rent, the land that pays it has become independent in point of
husbandry, its dependence appears as a matter of agreement, and not an
economic tie. When a tenement is for economic purposes subordinated to
the general management of the manor, there is almost of necessity a
degree of uncertainty in its tenure; it is a satellite whose motions are
controlled by the body round which it revolves. On the other hand, mere
payments in money look like the outcome of some sort of agreement, and
are naturally thought of as the result of contract.
[Custom in the exercise of manorial rights.]
Everything is subject to the will and pleasure of the lord; but this
will and pleasure does not find expression in any capricious
interference which would have wantonly destroyed order and rule in
village life. Under cover of this will, customs are forming themselves
which regulate the constantly recurring events of marriage, succession,
alienation, and the like. Curious combinations arise, which reflect
faithfully the complex elements of village life. An instruction for
stewards provides, for instance, that one person ought not to hold
several tenements; where such agglomerations exist already they ought to
be destroyed, _if it can be done conveniently and honestly_[353]. In one
of the manors of St. Paul of London the plots held by the ploughmen are
said to be resumable by the lord without any injury to hereditary
succession[354]. 'The rule of hereditary succession' is affirmed in
regard to normal holdings by this very exception. We find already the
phrase of which the royal courts availed themselves, when in later days
they extended their protection to this base tenure: the tenants hold 'by
the custom of the manor[355].' On the strength of such custom the life
of the unfree peasantry takes a shape closely resembling that of the
free population; transactions and rights spring into being which find
their exact parallel in the common law of the 'free and lawful' portion
of the community. Walter, a villain of St. Alban's, surrenders into the
hand of the monastery two curtilages, which are thereupon granted to
his daughter and her husband for life, upon condition that after their
death the land is to revert to Walter or to his heirs[356]. An Essex
villain claims succession by hereditary right, for himself and his
heirs[357]. I have already spoken of the 'free bench' to be found
equally on free and unfree land. In the same way there exists a parallel
to the so-called 'Curtesy of England' in the practice of manorial
courts; if the son inherits land from his mother during his father's
life, the latter enjoys possession during his life, or, it may be, only
until his son comes of age. In view of all this manorial documents have
to draw a distinction between tenements in villainage and land held at
the will of the lord, not in the general, but in the special and literal
sense of the term[358]. From a formal point of view, villain tenure by
custom obtained its specific character and its name from a symbolical
act performed in open Court by the steward; a rod was handed over to the
new holder by the lord's representative, and a corresponding entry made
in the roll of the Court. Hence the expression _tenere per virgam aut
per rotulum Curie_[359].
[Customary duties of the lord in regard to the peasantry.]
I ought perhaps to treat here of the different and interesting forms
assumed by services and rents as consequences of manorial organisation.
But I think that this subject will be understood better in another
connexion, namely as part of the agrarian system. One side only of it
has to be discussed here. Everywhere customs arise which defend the
villains from capricious extortions on the part of the lord and steward.
These customs mostly get 'inbreviated[360],' described in surveys and
cartularies, and although they have no legally binding power, they
certainly represent a great moral authority and are followed in most
cases.
A very characteristic expression of their influence may be found in the
fact that the manorial rolls very often describe in detail, not only
what the peasants are bound to do for the lord, but what the lord must
do for the peasants; especially when and how he is to feed them. Of
course, the origin of such usage cannot be traced to anything like a
right on the part of the villain; it comes from the landlord's
concessions and good-will, but grace loses its exceptional aspect in
this case and leads to a morally binding obligation[361]. When the
villain brings his yearly rent to his lord, the latter often invites him
to his table[362]. Very common is the practice of providing a meal for
the labourers on the _boon-days_, the days on which the whole population
of the village had to work for the lord in the most busy time of the
summer and autumn. Such boon-work was considered as a kind of surplus
demand; it exceeded the normal distribution of work. It is often
mentioned accordingly that such service is performed out of affection
for the lord, and sometimes it gets the eloquent name of 'love-bene.' In
proportion as the manorial administration gets more work done in this
exceptional manner, it becomes more and more gracious in regard to the
people. 'Dry requests' (siccae precariae) are followed by 'requests with
beer' (precariae cerevisiae). But it was not beer alone that could be
got on such days. Here is a description of the customs of Borle, a manor
belonging to Christ Church, Canterbury, in Essex. 'And let it be known
that when he, the villain, with other customers shall have done cutting
the hay on the meadow in Raneholm, they will receive by custom three
quarters of wheat for baking bread, and one ram of the price of eighteen
pence, and one pat of butter, and one piece of cheese of the second sort
from the lord's dairy, and salt, and oatmeal for cooking a stew, and all
the morning milk from all the cows in the dairy, and for every day a
load of hay. He may also take as much grass as he is able to lift on the
point of his scythe. And when the mown grass is carried away, he has a
right to one cart. And he is bound to carry sheaves, and for each
service of this kind he will receive one sheaf, called "mene-schef." And
whenever he is sent to carry anything with his cart, he shall have oats,
as usual, so much, namely, as he can thrice take with his hand[363].'
All such customs seem very strange and capricious at first sight. But it
is to be noticed that they occur in different forms everywhere, and that
they were by no means mere oddities; they became a real and sometimes a
heavy burden for the landlord. The authorities, the so-called
'Inquisitiones post mortem' especially, often strike a kind of balance
between the expense incurred and the value of the work performed. By the
end of the thirteenth century it is generally found that both ends are
just made to meet in cases of extra work attended by extra feeding, and
in some instances it is found that the lord has to lay out more than he
gets back[364]. The rise in the prices of commodities had rendered the
service unprofitable. No wonder that such 'boon-work' has to be given up
or to be commuted for money.
[Customs in the arrangement of agricultural work.]
These regularly recurring _liberationes_ or _liberaturae_ as they are
called, that is, meals and provender delivered to the labourers, have
their counterpart in the customary arrangement of the amount and kind of
services. I shall have to speak of their varieties and usual forms in
another connexion, but it must be noticed now, that these peasants
unprotected at law were under the rule of orderly custom. We have seen
already that the payments and duties which followed from the subjection
of the villains were for the most part fixed according to constant rules
in each particular case. The same may be said of the economical pressure
exercised in the shape of service and rent. It did not depend on the
caprice of the lord, although it depended theoretically on his will. The
villains of a manor in Leicestershire are not bound to work at weeding
the demesne fields unless by their own consent, that is by
agreement[365]. A baker belonging to Glastonbury Abbey is not bound to
carry loads unless a cart is provided him[366]. A survey of Ely mentions
that some peasants are made to keep a hedge in order as extra work and
without being fed. But it is added that the jurors of the village
protest against such an obligation, as heretofore unheard of[367]. All
these customs and limitations may, of course, be broken and slighted by
the lord, but such violent action on his part will be considered as
gross injustice, and may lead to consequences unpleasant for him--to
riots and desertion.
It is curious that the influence of custom makes itself felt slowly but
surely among the most debased of the villains. The Oxfordshire Hundred
Roll treats for instance of the _servi_ of Swincombe. They pay merchet;
if any of them dies without making his will the whole of his moveable
property falls to the lord. They are indeed degraded. And still the
lord does not tallage them at pleasure--they are secure in the
possession of their waynage (_salvo contenemento_)[368].
We may sum up the results already obtained by our analysis of manorial
documents in the following propositions:--
1. The terminology of the feudal period and the treatment of tenure in
actual life testify to the fact that the chief stress lay more on tenure
than on status, more on economical condition than on legal distinctions.
2. The subdivisions of the servile class and the varieties of service
and custom show that villainage was a complex mould into which several
heterogeneous elements had been fused.
3. The life of the villain is chiefly dependent on custom, which is the
great characteristic of medieval relations, and which stands in sharp
contrast with slavery on the one hand and with freedom on the other.