FREE PEASANTRY.
I hope the heading of this chapter may not be misunderstood. It would be
difficult to speak of free peasantry in the modern sense at the time
with which we are now dealing. Some kind or form of dependence often
clings even to those who occupy the best place among villagers as
recognised free tenants, and in most cases we have a very strong
infusion of subjection in the life of otherwise privileged peasants. But
if we keep to the main distinctions, and to the contrast which the
authorities themselves draw between the component elements of the
peasant class, its great bulk will arrange itself into two groups: the
larger one will consist of those ordinarily designated as _villains_; a
smaller, but by no means an insignificant or scanty one, will present
itself as _free_, more or less protected by law, and more or less
independent of the bidding of the lord and his steward. There is no
break between the two groups; one status runs continuously into the
other, and it may be difficult to distinguish between the intermediate
shades; but the fundamental difference of conception is clearly
noticeable as soon as we come to look at the whole, and it is not only
noticeable to us but was noticed by the contemporary documents.
[General condition of England.]
In very many cases we are actually enabled to see how freedom and legal
security gradually emerge from subjection. One of the great movements in
the social life of the thirteenth and fourteenth centuries is the
movement towards the commutation of services for money rents. In every
survey we find a certain number of persons who now pay money, whereas
they used to do work, and who have thus emancipated themselves from the
most onerous form of subjection[369]. In the older documents it is
commonly specified that the lord may revert to the old system, give up
the rents, and enforce the services[370]. In later documents this
provision disappears, having become obsolete, and there is only a
mention of certain sums of money. The whole process, which has left such
distinct traces in the authorities, is easily explained by England's
economic condition at that time. Two important factors co-operated to
give the country an exceptionally privileged position. England was the
only country in Europe with a firmly constituted government. The Norman
Conquest had powerfully worked in the sense of social feudalism, but it
had arrested the disruptive tendencies of political feudalism. The
opposition between the two races, the necessity for both to keep
together, the complexity of political questions which arose from
conquest and settlement on the one hand, from the intercourse with
Normandy and France on the other,--all these agencies working together
account for a remarkable intensity of action on the part of the
centripetal forces of society, if I may use the expression: there was in
England a constant tendency towards the concentration and organisation
of political power in sharp contrast with the rest of Europe where the
state had fallen a prey to local and private interests. One of the
external results of such a condition was the growth of a royal power
supported by the sympathy of the lower English-born classes, but
arranging society by the help of Norman principles of fiscal
administration. Not less momentous was the formation of an aristocracy
which was compelled to act as a class instead of acting as a mere
collection of individuals each striving for his own particular
advantage; as a class it had to reckon with, and sometimes represent,
the interests and requirements of other classes. In all these respects
England was much ahead of Germany, where tribal divisions were more
powerful than national unity, and the state had to form itself on feudal
foundations in opposition to a cosmopolitan Imperial power; it was not
less in advance of France, where the work of unification, egotistically
undertaken by the king, had hardly begun to get the upper hand in its
conflict with local dynasties; not less in advance of Italy, so well
situated for economic progress, but politically wrecked by its unhappy
connexion with Germany, the anti-national influence of the Papacy, and
the one-sided development of municipal institutions. By reason of its
political advantages England had the start of other European countries
by a whole century and even by two centuries. The 'silver streak' acted
already as a protection against foreign inroads, the existence of a
central power insured civil order, intercourse between the different
parts of the island opened outlets to trade, and reacted favourably on
the exchange of commodities and the circulation of money.
Another set of causes operated in close alliance with these political
influences. The position of England in relation to the European market
was from the first an advantageous one. Besides the natural development
of seafaring pursuits which lead to international trade, and always tend
to quicken the economic progress, there were two special reasons to
account for a speedy movement in the new direction: the woollen trade
with Flanders begins to rise in the twelfth century, and this is the
most important commercial feature in the life of North-Western Europe;
then again, the possession of Normandy and the occupation of Aquitaine
and other provinces of France by the English opened markets and roads
for a very brisk commercial intercourse with the Continent. As an
outcome of all these political and economical conditions we find the
England of the thirteenth century undoubtedly moving from _natural
husbandry_ to the _money-system_.
[Commutation.]
The consequences are to be seen on every side in the arrangements of
state and society. The means of government were modified by the economic
change. Hired troops took the place of feudal levies; kings easily
renounced the military service of their tenants and took scutages which
give them the means of keeping submissive and well-drilled soldiers. The
same process took place all through the country on the land of secular
and ecclesiastical lords. They all preferred taking money which is so
readily spent and so easy to keep, which may transform itself equally
well into gorgeous pageants and into capital for carrying on work,
instead of exacting old-fashioned unwieldly ploughings and reapings or
equally clumsy rents in kind.
On the other hand, the peasants were equally anxious to get out of the
customary system: through its organisation of labour it involved
necessarily many annoyances, petty exactions and coercion; it involved a
great waste of time and energy. The landlord gained by the change,
because he received an economic instrument of greater efficiency; the
peasant gained because he got rid of personal subjection to control;
both gained; for a whole system of administration, a whole class of
administrators, stewards, bailiffs, reeves, a whole mass of cumbrous
accounts and archaic procedure became unnecessary.
In reality the peasantry gained much more than the lord. Just because
money rents displaced the ploughings and reapings very gradually, they
assumed the most important characteristic of these latter--their
customary uniformity; tradition kept them at a certain level which it
was very difficult to disturb, even when the interests of the lord and
the conditions of the time had altered a great deal. Prices fluctuate
and rise gradually, the buying strength of money gets lowered little by
little, but customary rents remain much the same as they were before.
Thus in process of time the balance gets altered for the benefit of the
rent payer. I do not mean to say that such views and such facts were in
full operation from the very beginning: one of the chief reasons for
holding the Glastonbury inquest of 1189 was the wish to ascertain
whether the rents actually corresponded to the value of the plots, and
to make the necessary modifications. But such fresh assessments were
very rare, it was difficult to carry them into practice, and the general
tendency was distinctly towards a stability of customary rents.
[Social results of commutation.]
The whole process has a social and not merely an economical meaning.
Commutation, even when it was restricted to agricultural services,
certainly tended to weaken the hold of the lord on his men. Personal
interference was excluded by it, the manorial relation resolved itself
into a practice of paying certain dues once or several times a year; the
peasant ceased to be a tool in the husbandry arrangements of his master.
The change made itself especially felt when the commutation took place
in regard to entire villages[371]: the new arrangement developed into
the custom of a locality, and gathered strength by the number of
individuals concerned in it, and the cohesion of the group. In order not
to lose all power in such a township, the lords usually reserved some
cases for special interference and stipulated that some services should
still be rendered in kind[372].
Again, the conversion of services into rents did not always present
itself merely in the form just described: it was not always effected by
the mere will of the lord, without any legally binding acts. Commutation
gave rise to actual agreements which came more or less under the notice
of the law. We constantly find in the Hundred Rolls and in the
Cartularies that villains are holding land by written covenant. In this
case they always pay rent. Sometimes a villain, or a whole township,
gets emancipated from certain duties by charter[373], and the
infringement of such an instrument would have given the villains a
standing ground for pleading against the lord. It happened from time to
time that bondmen took advantage of such deeds to claim their liberty,
and to prove that the lord had entered into agreement with them as with
free people[374]. To prevent such misconstruction the lord very often
guards expressly against it, and inserts a provision to say that the
agreement is not to be construed against his rights and in favour of
personal freedom[375].
[Molmen.]
[Improvement of condition.]
The influence of commutation makes itself felt in the growth of a number
of social groups which arrange themselves between the free and the
servile tenantry without fitting exactly into either class. Our manorial
authorities often mention mol-land and mol-men[376]. The description of
their obligations always points one way: they are rent-paying tenants
who may be bound to some extra work, but who are very definitely
distinguished from the 'custumarii,' the great mass of peasants who
render labour services[377]. Kentish documents use 'mala' or 'mal' for
a particular species of rent, and explain the term as a payment in
commutation of servile customs[378]. In this sense it is sometimes
opposed to _gafol_ or _gable_--the old Saxon rent in money or in kind,
this last being considered as having been laid on the holding from all
time, and not as the result of a commutation[379]. Etymologically there
is reason to believe that the term _mal_ is of Danish origin[380], and
the meaning has been kept in practice by the Scotch dialect[381]. What
immediately concerns our present purpose is, that the word mal-men or
mol-men is commonly used in the feudal period for villains who have been
released from most of their services by the lord on condition of paying
certain rents. Legally they ought to remain in their former condition,
because no formal emancipation has taken place; but the economical
change reacts on their status, and the manorial documents show clearly
how the whole class gradually gathers importance and obtains a firmer
footing than was strictly consistent with its servile origin[382].
In the Bury St. Edmund's case just quoted in a foot-note the
fundamental principle of servility is stated emphatically, but the
statement was occasioned by gradual encroachments on the part of the
molmen, who were evidently becoming hardly distinguishable from
freeholders[383]. And in many Cartularies we find these molmen actually
enumerated with the freeholders, a very striking fact, because the clear
interest of the lord was to keep the two classes asunder, and the
process of making a manorial 'extent' and classifying the tenants must
have been under his control. As a matter of fact, the village juries
were independent enough to make their presentments more in accordance
with custom than in accordance with the lord's interests. In a
transcript of a register of the priory of Eye in Suffolk, which seems to
have been compiled at the time of Edward I, the molmen are distinguished
from villains in a very remarkable manner as regards the rule of
inheritance, Borough English being considered as the servile mode, while
primogeniture is restricted to those holding mol-land[384]. Borough
English was very widely held in medieval England to imply servile
occupation of land[385], and the privilege enjoyed by molmen in this
case shows that they were actually rising above the general condition of
villainage, the economical peculiarities of their position affording a
stepping-stone, as it were, towards the improvement of their legal
status. It is especially to be noticed, that in this instance we have to
reckon with a material difference of custom, and not merely with a
vacillating terminology or a general and indefinite improvement in
position. An interesting attempt at an accurate classification of this
and other kinds of tenantry is displayed by an inquisition of 19 Edward
I preserved at the Record Office. The following subdivisions are
enumerated therein:--
Liberi tenentes per cartam.
Liberi tenentes qui vocantur fresokemen.
Sokemanni qui vocantur molmen.
Custumarii qui vocantur werkmen.
Consuetudinarii tenentes 4 acras terre.
Consuetudinarii tenentes 2 acras terre[386].
The difference between molmen and workmen lies, of course, in the fact
that the first pay rent and the second perform week-work. But what is
more, the molmen are ranged among the sokemen, and this supposes a
certainty of tenure and service not enjoyed by the villains. In this way
the intermediate class, though of servile origin, connects itself with
the free tenantry.
[Censuarii and gavelmen.]
The same group appears in manorial documents under the name of
_censuarii_[387]. Both terms interchange, and we find the same
fluctuation between free and servile condition in regard to the
_censuarii_ as in regard to _molmen_. The thirteenth-century extent of
the manor of Broughton, belonging to the Abbey of Ramsey in
Huntingdonshire, when compared with Domesday, shows clearly the origin
of the group and the progress which the peasantry had made in two
hundred years. The Domesday description mentions ten sokemen and twenty
villains; the thirteenth-century Cartulary speaks in one place of
_liberi_ and _villani_, sets out the services due from the latter, but
says that the Abbot can 'ponere omnia opera ad censum;' while in another
place it speaks as though the whole were held by _liberi et
censuarii_[388].
A similar condition is indicated by the term _gavelmanni_, which occurs
sometimes, although not so often as either of the designations just
mentioned[389]. It comes evidently from _gafol_ or _gafel_, and applies
to rent-paying people. It ought to be noticed, however, that if we
follow the distinction suggested by the Kentish documents, there would
be an important difference in the meaning. Rent need not always appear
as a result of commutation; it may be an original incident of the
tenure, and there are facts enough to show that lands were held by rent
in opposition to service even in early Saxon time. Should _mal_ be taken
as a commutation rent, and _gafol_ strictly in the sense of original
rent, the gavelmen would present an interesting variation of social
grouping as the progeny of ancient rent-holding peasantry. I do not
think, however, that we are entitled to press terminological
distinctions so closely in the feudal period, and I should never enter a
protest against the assumption that most gavelmen were distinguished
from molmen only by name, and in fact originated in the same process of
commutation. But, granting this, we have to grant something else. _Vice
versa_, it is very probable indeed that the groups of _censuarii_ and
_molmen_ are not to be taken exclusively as the outcome of commutation.
If _gafol_ gets to be rather indistinct in its meaning, so does _mal_,
and as to _census_, there is nothing to show whether it arises in
consequence of commutation or of original agreement. And so the Kentish
distinction, even if not carried out systematically, opens a prospect
which may modify considerably the characteristic of the status on which
I have been insisting till now. Commutation was undoubtedly a most
powerful agency in the process of emancipation; our authorities are very
ready to supply us with material in regard to its working, and I do not
think that anybody will dispute the intimate connexion between the
social divisions under discussion and the transition from labour
services to rent. Yet a money rent need not be in every case the result
of a commutation of labour services, although such may be its origin in
most cases. We have at least to admit the possibility and probability of
another pedigree of rent-paying peasants. They may come from an old
stock of people whose immemorial custom has been to pay rent in money or
in kind, and who have always remained more or less _free_ from base
labour. This we should have to consider as at all events a theoretic
possibility, even if we restricted our study to the terminology
connected with rent; though it would hardly give sufficient footing for
definite conclusions. But there are groups among the peasantry whose
history is less doubtful.
[Hundredarii.]
There are at the British Museum two most curious Surveys of the
possessions of Ely Minster, one drawn up in 1222 and the other in
1277[390]. In some of the manors described we find tenants called
'hundredarii.' Their duties vary a good deal, but the peculiarity which
groups them into a special division and gives them their name is the
suit of court they owe to the hundred[391]. And although the name does
not occur often even in the Ely Surveys, and is very rare indeed
elsewhere[392], the thing is quite common. The village has to be
represented in the hundred court either by the lord of the manor, or by
the steward, or by the reeve, the priest, and four men[393]. The same
people have to attend the County Court and to meet the King's justices
when they are holding an eyre[394]. It is not a necessary consequence,
of course, that certain particular holdings should be burdened with the
special duty of sending representatives to these meetings, but it is
quite in keeping with the general tendency of the time that it should be
so; and indeed one finds everywhere that some of the tenants, even if
not called 'hundredarii,' are singled out from the rest to 'defend' the
township at hundred and shire moots[395]. They are exempted from other
services in regard to this 'external,' this 'forinsec' duty, which was
considered as by no means a light one[396].
[Hundredors as villains.]
And now as to their status. The obligation to send the reeve and four
men is enforced all through England, and for this reason it is _prima
facie_ impossible that it should be performed everywhere by freeholders
in _the usual sense of the word_. There can be no doubt that in many, if
not in most, places the feudal organisation of society afforded little
room for a considerable class of freeholding peasants or yeomen[397].
If every township in the realm had to attend particular judicial
meetings, to perform service for the king, by means of five
representatives, these could not but be selected largely from among the
villain class. The part played by these representatives in the Courts
was entirely in keeping with their subordinate position. They were not
reckoned among the 'free and lawful' men acting as judges or assessors
and deciding the questions at issue. They had only to make presentments
and to give testimony on oath when required to do so. The opposition is
a very marked one, and speaks of itself against the assumption that the
five men from the township were on an equal standing with the
freeholders[398]. Again, four of these five were in many cases
especially bound by their tenure to attend the meetings, and the reeve
came by virtue of his office, but he is named first, and it does not
seem likely that the leader should be considered as of lower degree than
the followers. Now the obligation to serve as reeve was taken as a mark
of villainage. All these facts lead one forcibly to the conclusion that
the hundredors of our documents represent the village people at large,
and the villains first of all, because this class was most numerous in
the village. This does not mean, of course, that they were all
personally unfree: we know already, that the law of tenure was of more
importance in such questions than personal status[399]. It does not even
mean that the hundredors were necessarily holding in villainage: small
freeholders may have appeared among them. But the institution could not
rest on the basis of legal freehold if it was to represent the great
bulk of the peasantry in the townships.
[Hundredors as free tenants.]
This seems obvious and definite enough, but our inquiry would be
incomplete and misleading if it were to stop here. We have in this
instance one of those curious contradictions between two
well-established sets of facts which are especially precious to the
investigator because they lead him while seeking their solution to
inferences far beyond the material under immediate examination. In one
sense the reeve and the four men, the hundredors, seem villains and not
freeholders. In another they seem freeholders and not villains. Their
tenure by the 'sergeanty' of attending hundreds and shires ranks again
and again with freehold and in opposition to base tenure[400].
Originally the four men were made to go not only with the reeve but with
the priest; and if the reeve was considered in feudal times as unfree,
the priest, the 'mass-thane,' was always considered as free[401]. It is
to be noticed that the attendance of the priest fell into abeyance in
process of time, but that it was not less necessary for the
representation of the township according to the ancient constitution of
the hundred than the attendance of the reeve. This last fact is of great
importance because it excludes an explanation which would otherwise look
plausible enough. Does it not seem at first sight that the case of the
hundredors is simply a case of exemption and exactly on a parallel with
the commutation of servile obligations for money? We have seen that
villains discharged from the most onerous and opprobrious duties of
their class rise at once in social standing, and mix up with the smaller
freeholders. Hundredors are relieved from these same base services in
order that they may perform their special work, and this may possibly be
taken as the origin of their freedom. Should we look at the facts in
this way, the classification of this class of tenants as free would
proceed from a lax use of the term and their privileges would have to be
regarded as an innovation. The presence of the priest warns us that we
have to reckon in the case with a survival, with an element of tradition
and not of mere innovation. And it is not only the presence of the
priest that points this way.
[The Hundred Courts.]
At first sight the line seems drawn very sharply between the reeve and
the four men on the one hand, and the freehold suitors of the hundred
court on the other: while these last have to judge and to decide, the
first only make presentments. But the distinction, though very clear in
later times, is by no means to be relied upon even in the thirteenth
century. In Britton's account of the sheriff's tourn the two bodies,
though provided with different functions, are taken as constituted from
the same class: 'the free landowners of the hundred are summoned and the
first step is to cause twelve _of them_ to swear that they will make
presentment according to the articles. Afterwards the _rest_ shall be
sworn by dozens and by townships, that they will make lawful presentment
to the _first twelve jurors_[402].' The wording of the passage certainly
leads one to suppose that both sets of jurors are taken from the
freeholder class, and the difference only lies in the fact that some are
selected to act as individuals, and the rest to do so by representation.
The Assize of Clarendon, which Mr. Maitland has shown to be at the
origin of the sheriff's tourn[403], will only strengthen the inference
that the two bodies were intended to belong to the same free class: the
inquiry, says the Assize, shall be made by twelve of the most lawful
men of the county, and by four of the most lawful men of every township.
What is there in these words to show that the two sets were to be taken
from different classes? And does not the expression 'lawful,' extending
to both sets, point to people who are 'worthy of their law,' that is to
free men? The Assize of Clarendon and the constitution of the tourn are
especially interesting because they give a new bearing to an old
institution: both divisions of the population which they have in view
appear in the ordinary hundred and county court, and in the 'law day' of
the 'great' hundred instituted for the view of frankpledge. In the
ordinary court the lord, his steward, and the reeve, priest, and four
men, interchange, according to the clear statement of Leg. Henrici I. c.
7, that is to say, the vill is to be represented either by the lord, or
by his steward, or again by the six men just mentioned. They are not
called out as representing different classes and interests, but as
representing the same territorial unity. If the landlord does not attend
personally or by his personal representative, the steward, then six men
from the township attend in his place. The question arises naturally,
where is one to look for the small freeholders in the enactment? However
much we may restrict their probable number, their existence cannot be
simply denied or disregarded. It does not seem likely that they were
treated as landlords (terrarum domini), and one can hardly escape the
inference that they are included in the population of the township,
which appears through the medium of the six hundredors: another hint
that the class division underlying the whole structure did not coincide
with the feudal opposition between freeholder and villain. Again, in the
great hundred for the view of frankpledge, which is distinguished from
the ordinary hundred by fuller attendance, and not by any fundamental
difference in constitution, all men are to appear who are 'free and
worthy of their wer and their wite[404]:' this expression seems an
equivalent to the 'free and lawful' men of other cases, and at the same
time it includes distinctly the great bulk of the villain population as
personally free.
[Results as to hundredors.]
I have not been able, in the present instance, to keep clear of the
evidence belonging to the intermediate period between the Saxon and the
feudal arrangements of society; this deviation from the general rule,
according to which such evidence is to be discussed separately and in
connexion with the Conquest, was unavoidable in our case, because it is
only in the light of the laws of Henry I that some important feudal
facts can be understood. In a trial as to suit of court between the
Abbot of Glastonbury and two lay lords, the defendants plead that they
are bound to appear at the Abbot's hundred court personally or by
attorney only on the two law-days, whereas for the judgment of thieves
their freemen, their reeves and ministers have to attend in order to
take part in the judgment[405]. It is clearly a case of substitution,
like the one mentioned in Leg. Henrici, c. 7, and the point is, that the
representatives of the fee are designated as reeves and freemen.
Altogether the two contradictory aspects in which the hundredors are
made to appear can hardly be explained otherwise than on the assumption
of a fluctuation between the conception of the hundred as of an assembly
of freemen, and its treatment under the influence of feudal notions as
to social divisions. In one sense the hundredors are villains: they come
from the vill, represent the bulk of its population, which consists of
villains, and are gradually put on a different footing from the greater
people present. In another sense they are free men, and even treated as
freeholders, because they form part of a communal institution intended
to include the free class and to exclude the servile class[406]. If
society had been arranged consistently on the feudal basis, there would
have been no room for the representation of the vill instead of the
manor, for the representation of the vill now by the lord and now by a
deputation of peasants, for a terminology which appears to confuse or
else to neglect the distinction between free and servile holding. As it
is, the intricate constitution of the hundred, although largely modified
and differentiated by later law, although cut up as it were by the
feudal principle of territorial service, looks still in the main as an
organisation based on the freedom of the mass of the people[407]. The
free people had to attend virtually, if not actually, and a series of
contradictions sprang up from the attempt to apply this principle to a
legal state which had almost eliminated the notion of freedom in its
treatment of peasantry on villain land. As in these feudal relations all
stress lay on tenure and not on status, the manorial documents seem to
raise the hundredors almost or quite to the rank of freeholders,
although in strict law they may have been villains. The net results seem
to be: (1) that the administrative constitution of hundred and county
is derived from a social system which did not recognise the feudal
opposition between freeholder and villain; (2) that we must look upon
feudal villainage as representing to a large extent a population
originally free; (3) that this original freedom was not simply one of
personal status, but actually influenced the conception of tenure even
in later days[408].
[Socmen.]
If in manorial documents these 'hundredors' occupy as it were an
ambiguous position, the same may be said of another and a very important
class--the _socmen_. The socage tenure has had a very curious
terminological history. Everybody knows that it appears in Domesday as a
local peculiarity of Danish districts; in modern law it came to be a
general name for any freehold that was neither knight service,
frankalmoign, nor grand sergeanty. It became in fact the normal and
typical free tenure, and as such it was treated by the Act of Charles II
abolishing military tenure. Long before this--even in the thirteenth
century--'free socage' was the name of a freehold tenure fully protected
by the King's Courts. Very great men occasionally held land in free
socage (per liberum socagium); they even held of the King in chief by
free socage, and the tenure had many advantages, since it was free from
the burdensome incidents of wardship and marriage. But no one would have
called these men socmen (sokemanni, socomanni). On the other hand, the
socmen, free socmen, were to be found all over England and not in the
Danish country only. It is of the tenure of these socmen that we have to
speak now. In a trial of Edward the First's time the counsel distinguish
three manners of persons--free men, villains, and socmen. These last are
said to occupy an intermediate position, because they are as _statu
liberi_ in regard to their lords[409]. The passage occurs in a case
relating to ancient demesne, but the statement is made quite broadly,
and the term 'socmen' is used without any qualification. As there were
many socmen outside the King's possessions on the land of lay and
spiritual lords, such usage may be taken as proof that the position of
all these people was more or less identical. And so in our inquiry as to
the characteristic traits of socage generally we may start from the
ancient demesne. Further, we see that the socman's tenure is
distinguished from free tenure, socmen from freeholders. In the law
books of the time the free but non-military tenure has to be
characterised not merely as socage, but as _free_ socage: this fact will
give us a second clue in analysing the condition.
[Charter and communal testimony.]
There are two leading features in ancient demesne socage: it is certain
in tenure and service, and it is held by the custom of the manor and not
by feoffment. The certainty of the tenure severs the class of socmen
from the villains, and is to be found as well in the case of socmen
outside the crown demesne as in the case of socmen on the crown demesne.
What is to be said of the second trait? It seems especially worthy of
notice, because it cannot be said to belong to freehold generally. As to
its existence on ancient demesne land I have already had occasion to
speak, and it can hardly be doubted. I will just recall to the reader's
mind the fundamental facts: that the 'little writ of right' was to
insure justice according to the custom of the manor, and that our
documents distinguish in as many words between the customary admittance
of the socman and the feoffment of the freeholder. This means, that in
case of litigation the one had warranty and charter to lean upon, while
the other had to appeal to the communal testimony of his fellow-suitors
in the court of the manor, and in later days to an entry on the
court-roll. Freehold appeared as chartered land (book-land), while
socage was in truth copyhold secured by communal custom[410]. The
necessary surrender and admittance was performed in open court, and the
presence of fellow-tenants was as much a requisite of it as the action
of the lord or his steward.
If we look now to the socmen outside the ancient demesne, we shall find
their condition so closely similar, that the documents constantly
confuse them with the tenants of the ancient demesne. The free men under
soke in the east of England have best kept the tradition, but even their
right is often treated as a mere variation of ancient demesne[411]. For
this reason we should be fairly entitled, I think, to extend to them the
notion of customary freehold. There is direct evidence in this respect.
In extents of manors socmen are often distinguished from
freeholders[412]. True, as already said, that in the king's courts 'free
socage' came to be regarded as one of the freehold tenures, and as such
(when not on the ancient demesne) was protected by the same actions
which protected knight-service and frankalmoign; but we have only here
another proof of the imperfect harmony between legal theory and
manorial administration. What serves in the manorial documents to
distinguish the 'socman' from the 'freeholder' is the fact that the
former holds without charter[413]. We are naturally led to consider him
as holding, at least originally, by ancient custom and communal
testimony in the same sense as the socmen of ancient demesne. In most
cases only the negative side, namely the absence of a charter, is
mentioned, but there are entries which disclose the positive side, and
speak of tenants or even free tenants holding without charter by ancient
tenure[414]. It is to be added, that we find such people in central and
western counties, that is outside of the Danelagh. In Domesday their
predecessors were entered as villains, but their tenure is nevertheless
not only a free but an ancient one.
[Bond socmen.]
It must also be added that it is not only free socmen that one finds
outside the ancient demesne; bond socmen are mentioned as well. Now this
seems strange at first sight, because the usual and settled terminology
treats villain socage as a peculiarity of ancient demesne. My notion is
that it is not 'bond' that qualifies the 'socmen,' but _vice versa_. To
put it in a different way, the documents had to name a class which held
by certain custom, although by base service, and they added the 'socman'
to qualify the 'bond' or the 'villain.'
Two cases from the Hundred Rolls may serve as an illustration of this
not unimportant point. The vill of Soham in Cambridgeshire[415] was
owned in 1279 partly by the King, partly by the Earl Marshall, and
partly by the Bishop of Ely. There are two socmen holding from the King
thirty acres each, fourteen socmen holding fifteen acres each, and
twenty-six 'toftarii' possessed of small plots. No villains are
mentioned, but the socmen are designated on the margin in a more
definite way as bond socmen. The manor had been in the possession of the
Crown at the time of the Conquest, and it is to be noticed, to begin
with, that the chief population of the part which remained with the King
appears as socmen--a good illustration of the principle that the special
status did not originate when the manor was granted out by the Crown.
The sixteen peasants first mentioned are holders of virgates and
half-virgates, and form as it were the original stock of the
tenantry--it would be impossible to regard them as a later adjunct to
the village. Their status is not a result of commutation--they are still
performing agricultural work, and therefore _bond_ socmen. The Domesday
Survey speaks only of villains and 'bordarii,' and it is quite clear
that it calls villains the predecessors of the 'bond socmen' of the
Hundred Rolls. And now let us examine the portion of the manor which had
got into the hands of the Earl Marshall. We find there several _free
socmen_ whose holdings are quite irregular in size: they pay rent, and
are exempted from agricultural work. Then come five _bond socmen_,
holding thirty acres each, and nine _bonds_ holding fifteen acres each:
all these perform the same services as the corresponding people of the
King's portion. And lastly come twenty-two tofters. Two facts are
especially worth notice: the free socman appears by the side of the bond
socman, and the opposition between them reduces itself to a difference
between rentpaying people and labourers; the holdings of the rentpayers
are broken up into irregular plots, while the labourers still remain
bound up by the system of equalised portions. The second significant
fact is, that the term 'socman,' which has evidently to be applied to
the whole population except the tofters, has dropped out in regard to
the half-virgate tenants of the Earl Marshall. If we had only the
fragment relating to his nine bondmen, we might conclude perhaps that
there was no certain tenure in the manor. The inference would have been
false, but a good many inferences as to the social standing of the
peasantry are based on no better foundation. In any case the most
important part of the population of Soham, as far as it belonged to the
king and to the earl, consisted of socmen who at the same time are
called bondmen, and were called villains in Domesday.
Soham is ancient demesne. Let us now take Crowmarsh in Oxfordshire[416].
Two-thirds of it belonged to the Earl of Oxford in 1279, and one-third
to the Lord de Valence. At the time of the Domesday Survey it was in the
hands of Walter Giffard, and therefore not ancient demesne. On the land
of the Earl of Oxford we find in 1279 nine _servi socomanni_ holding six
virgates, there are a few cotters and a few free tenants besides; the
remaining third is occupied by two 'tenentes per servicium
socomannorum,' and by a certain number of cotters and free tenants. It
can hardly be doubted that the opposition between _servi_ and _liberi_
is not based on the certainty of the tenure; the socmen hold as securely
as the free tenants, but they are labourers, while these latter are
exempted from the agricultural work of the village. The terms are used
in the same way as the 'terra libera' and the 'terra operabilis' of the
Glastonbury inquest.
[Servile duties of socmen and freeholders.]
I need not say that the socmen of ancient demesne, privileged villains
as Bracton calls them, are sometimes subjected to very burdensome
services and duties. Merchet is very common among them; it even happens
that they have to fine for it at the will of the lord[417]. But all the
incidents of base tenure are to be found also outside the ancient
demesne in connexion with the class under discussion. If we take the
merchet we shall find that at Magna Tywa, Oxon[418], it is customary to
give the steward a sword and four pence for licence to give away one's
daughter within twenty miles in the neighbourhood; in Haneberg,
Oxon[419], a spear and four pence are given in payment. The socmen of
Peterborough Abbey[420] have to pay five shillings and four pence under
the name of merchet as a fine for incontinence (the legerwite properly
so-called), and there is besides a marriage payment (redempcio
sanguinis) equal for socmen and villains. The same payment occurs in the
land of Spalding Priory, Lincoln[421]. The same fact strikes us in
regard to tallage and aids, i.e. the taxes which the lord had a right to
raise from his subjects. In Stoke Basset, Oxon[422], the socmen are
placed in this respect on the same footing with the villains. The
Spalding Cartulary adds that their wainage is safe in any case[423]. On
the lands of this priory the classes of the peasantry are generally very
near to each other, so that incidents and terms often get confused[424].
And not only socmen have to bear such impositions: we find them
constantly in all shapes and gradations in connection with free
tenantry. The small freeholder often takes part in rural work[425],
sometimes he has to act as a kind of overseer[426], and in any case this
base labour would not degrade him from his position[427]. Already in
Bracton's day the learned thought that the term 'socage' was
etymologically connected with the duty of ploughing:--a curious proof
both of the rapidity with which past history had become unintelligible,
and of the perfect compatibility of socage with labour services.
Merchet, heriot, and tallage occur even more often[428]. All such
exactions testify to the fact that the conceptions of feudal law as to
the servile character of particular services and payments were in a
great measure artificial. Tallage, even arbitrary tallage, was but a tax
after all, and did not detract from personal freedom or free tenure in
this sense. Then heriot often occurs among free people in the old Saxon
form of a surrender of horse and arms as well as in that of the best
ox[429]. Merchet is especially interesting as illustrating the fusion of
different duties into one. It is the base payment _par excellence_, and
often used in manorial documents as a means to draw the line between
free and unfree men[430]. Nevertheless free tenants are very often found
to pay it[431]. In most cases they have only to fine in the case when
their daughters leave the manor, and this, of course, has nothing
degrading in it: the payment is made because the lord loses all claim as
to the progeny of the woman who has left his dominion. But there is
evidence besides to show that free tenants had often to pay in such a
case to the hundred, and the lords had not always succeeded in
dispossessing the hundred[432]. Such a fine probably developed out of a
payment to the tribe or to a territorial community in the case when a
woman severed herself from it. It had nothing servile in its origin. And
still, if the documents had not casually mentioned these instances, we
should have been left without direct evidence as to a difference of
origin in regard to merchet or gersum. Is it not fair to ask, whether
the merchet of the villains themselves may not in some instances have
come from a customary recompense paid originally to the community of the
township into the rights of which the lord has entered? However this may
be, one fact can certainly not be disputed: men entirely free in status
and tenure were sometimes subjected to an exaction which both public
opinion and legal theory considered as a badge of servitude.
[Feudal oppression in the direction of servitude.]
The passage from one great class of society to the other was rendered
easy in this way by the variety of combinations in which the
distinguishing features of both classes appear. No wonder that we hear
constantly of oppression which tended to substitute one form of
subjection for another, and thus to lower the social standing of
intermediate groups. The free socmen of Swaffham Prior, in
Cambridgeshire[433], complain that they are made to bind sheaves while
they did not do it before; they used to pay thirty-two pence for licence
to marry a daughter, and to give a twofold rent on entering an
inheritance, and now the lord fines them at will. One of the tenants of
the Bishop of Lincoln[434] declares to the Hundred Roll Commissioners
that his ancestors were free socmen and did service to the king for
forty days at their own cost, whereas now the Bishop has appropriated
the royal rights. The same grievances come from ancient demesne people.
In Weston, Bedfordshire[435], the tenantry complain of new exactions on
the part of the lord; in King's Ripton[436], Hunts, merchet is
introduced which was never paid before; in Collecot, Berks[437], the
lord has simply dispossessed the socmen. In some instances the claims of
the peasantry may have been exaggerated, but I think that in all
probability the chances were rather against the subjected people than
for them, and their grievances are represented in our documents rather
less than fairly[438].
[Law of Kent.]
In speaking of those classes of peasants who were by no means treated as
serfs to be exploited at will, I must not omit to mention one group
which appears, not as a horizontal layer spread over England, but in the
vertical cut, as it were. I mean the Kentish gavelkind tenantry. The
Domesday Survey speaks of the population of this county quite in the
same way as of the people of neighbouring shires; villains form the
great bulk of it, socmen are not even mentioned, and to judge by such
indications, we have here plain serfdom occupying the whole territory of
the county. On the other hand the law of the thirteenth century puts the
social standing of Kentish men in the most decided opposition to that of
the surrounding people. The 'Consuetudines Kanciae,' the well-known list
of special Kentish customs[439], is reported to have been drawn up
during an eyre of John of Berwick in the twenty-first year of Edward I.
Be its origin what it may, we come across several of its rules at much
earlier times[440], and they are always considered of immemorial custom.
The basis of Kentish social law is the assumption that every man born in
the county is entitled to be considered as personally free, and the
Common Law Courts recognised the notion to the extent of admitting the
assertion that a person was born in Kent as a reply against the
'exceptio villenagii.' The contrast with other counties did not stop
there. The law of tenure was as different as the law of status. It would
be needless to enumerate all the points set forth as Kentish custom.
They show conclusively that the lord was anything but omnipotent in this
county. Interference with the proprietary right of the peasantry is not
even thought of; the tenants may even alienate their plots freely; the
lord can only claim the accustomed rents and services; if the tenants
are negligent in performing work or making payments, distress and
forfeiture are awarded by the manorial court according to carefully
graduated forms; wardship in case of minority goes to the kin and not to
the lord, and heiresses cannot be forced to marry against their wish. As
a case of independence the Kentish custom is quite complete, and
manorial documents show on every page that it was anything but a dead
letter. The Rochester Custumal, the Black Book of St. Augustine, the
customs of the Kentish possessions of Battle Abbey, the registers of
Christ Church, Canterbury, all agree in showing the Kentish tenantry as
a privileged one, both as to the quantity and as to the quality of their
services[441]. And so the great bulk of the Kentish peasantry actually
appears in the same general position as the free socmen of other
counties, and sometimes they are even called by this name[442].
What is more, the law of Kent thus favourable to the peasantry connects
itself distinctly with the ancient customs of Saxon ceorls: the quaint
old English proverbs enrolled in it look like sayings which have kept it
in the memory of generations before it was transmitted to writing. The
peculiarities in the treatment of wardship, of dower, of inheritance,
appear not only in opposition to the feudal treatment of all these
subjects, but in close connexion with old Saxon usage. It would be very
wrong, however, to consider the whole population of Kent as living
under one law. As in the case of ancient demesne, there were different
classes on Kentish soil: tenants by knight-service and sergeanty on one
side, villains on the other[443]. The custom of Kent holds good only for
the tenantry which would have been called gavelmen in other places. It
is a custom of gavelkind, of the rent-paying peasantry, the peasantry
which pays _gafol_, and as such stands in opposition to the usages of
those who hold their land by fork and flail[444]. The important point is
that we may lay down as certain in this case what was only put forward
hypothetically in the case of molmen and gavelmen in the rest of
England: the freehold quality of rent-paying land is not due to
commutation and innovation alone--it proceeds from a pre-feudal
classification of holdings which started from the contrast between rent
and labour, and not from that between certain and uncertain tenure.
Again, the law of gavelkind, although not extending over the whole of
Kent, belongs to so important and numerous a portion of the population,
that, as in the case of ancient demesne, it comes to be considered as
the typical custom of the county, and attracts all other variations of
local usage into its sphere of influence. The Custumal published among
the Statutes speaks of the personal freedom of all Kentish-men, although
it has to concern itself specially with the gavelkind tenantry. The
notion of villainage gets gradually eliminated from the soil of the
province, although it was by no means absent from it in the beginning.
Thirteenth-century law evidently makes the contrast between Kent and
adjoining shires more sharp than it ought to have been, if all the
varieties within the county were taken into account. But, if it was
possible from the legal standpoint to draw a hard and fast line between
Kent on one side, Sussex or Essex on the other, it is quite impossible,
from the historian's point of view, to grant that social condition has
developed in adjoining places out of entirely different elements,
without gradations and intermediate shades. Is there the slightest doubt
that the generalising jurisprudence of the thirteenth century went much
too far in one direction, the generalising scribes of the eleventh
century having gone too far in the other? Domesday does not recognise
any substantial difference between the state of Kent and that of Sussex;
the courts of the thirteenth century admitted a complete diversity of
custom, and neither one nor the other extreme can be taken as a true
description of reality. The importance of the _custom of Kent_ can
hardly be overrated: it shows conclusively what a mistake it would be to
accept without criticism the usual generalising statement as to the
different currents of social life in mediaeval England. It will hardly
be doubted moreover, that the Kentish case proves that elements of
freedom bequeathed by history but ignored by the Domesday Survey come to
the fore in consequence of certain facts which remain more or less
hidden from view and get recognised and protected in spite of feudalism.
If so, can the silence of Domesday or the absence of legal protection in
the thirteenth century stand as sufficient proof against the admission
of freedom as an important constitutive element in the historical
process leading to feudalism? Is it not more natural to infer that
outside Kent there were kindred elements of freedom, kindred remnants of
a free social order which never got adequate recognition in the Domesday
terminology or left definite traces in the practice of the Royal courts?
[Peasant freeholders.]
One more subject remains to be touched upon, and it may be approached
safely now that we have reviewed the several social groups on the border
between freeholders and villains. It is this--to what extent can the
existence of a class of freeholders among the peasantry of feudal
England be maintained? It has been made a test question in the
controversy between the supporters of the free and those of the servile
community, and it would seem, at first sight, on good ground. Stress has
been laid on the fact, that such communities as are mentioned in
Domesday and described in later documents are (if we set aside the
Danish counties) almost entirely peopled by villains, that free tenants
increase in number through the agency of commutation and grants of
demesne land, whereas they are extremely few immediately after Domesday,
and that in this way there can be no talk of free village communities
this side of the Conquest[445]. This view of the case may be considered
as holding the field at the present moment: its chief argument has been
briefly summarised by the sentence--the villains of Domesday are not the
predecessors in title of later freeholders[446]. I cannot help thinking
that a good deal has to be modified in this estimate of the evidence.
Without touching the subject in all its bearings, I may say at once that
I do not see sufficient reason to follow the testimony of Domesday very
closely as to names of classes. If we find in a place many free tenants
mentioned in the Hundred Roll, and none but villains in Domesday, it
would be wrong to infer that there were none but villains in the later
sense at the time of the Survey, or that all the free tenements of the
Hundred Rolls were of later creation than the Conquest. It would be
especially dangerous to draw such an inference in a case where the
freeholders of the thirteenth century are possessed of virgates,
half-virgates, etc., and not of irregular plots of land. Such cases may
possibly be explained by sweeping commutation, which emancipated the
entire village at one stroke, instead of making way for the freehold by
the gradual enfranchisement of plot after plot. But it is not likely
that all the many instances can be referred to such sweeping
emancipation. In the light of Kentish evidence, of free and villain
socage, it is at least probable that the thirteenth-century freeholders
were originally customary freeholders entered as villains in Domesday,
and rising to freedom again in spite of the influence of feudalism. Such
an assumption, even if only possible and hypothetical, would open the
way for further proof and investigation on the lines of a decline of
free village communities, instead of imposing a peremptory termination
of the whole inquiry for the period after the Conquest. If the Domesday
villains are in no case predecessors in title of freeholders, this fact
would go a long way to establish the serfdom of the village community
for all the period after the Conquest, and we should have to rely only
on earlier evidence to show anything else. Our case would be a hard one,
because the earlier evidence is scanty, scattered, obscure, and
one-sided. But if the villains of Domesday may be taken to include
customary freeholders, then we may try to illustrate our conceptions of
the early free village by traits drawn from the life of the later
period.