Every man is either a _liber homo_ or a _servus_[73]. Free men are
either two-hundred-men or twelve-hundred-men; perhaps we ought to add
that there is also a class of six-hundred-men[74]. A serf becomes such
either by birth or by some event, such as a sale into slavery, that
happens in his lifetime[75]. Servile blood is transmitted from father to
child; some lords hold that it is also transmitted by mother to
child[76]. If a slave is to be freed this should be done publicly, in
court, or church or market, and lance and helmet or other the arms of
free men should be given him, while he should give his lord thirty
pence, that is the price of his skin, as a sign that he is henceforth
'worthy of his hide.' On the other hand, when a free man falls into
slavery then also there should be a public ceremony. He should put his
head between his lord's hands and should receive as the arms of slavery
some bill-hook or the like[77]. Public ceremonies are requisite, for the
state is endangered by the uncertain condition of accused criminals; the
lords will assert at one moment that their men are free and at the next
moment that these same men are slaves[78]. The descent of a free man
into slavery is treated as no uncommon event; the slave may well have
free kinsfolk[79]. But, to come to the fundamental rule, the _villanus_,
the meanest of free men, is a two-hundred-man, that is to say, if he be
slain the very substantial wergild of 200 Saxon shillings or £4 must be
paid to his kinsfolk[80], while a man-bót of 30 shillings is paid to his
lord[81]. But if a _servus_ be slain his kinsfolk receive the
comparatively trifling sum of 40 pence while the lord gets the man-bót
of 20 shillings[82]. That the serf's kinsfolk should receive a small sum
need not surprise us. Germanic law has never found it easy to carry the
principle that the slave is a chattel to extreme conclusions; but the
payment seems trifling and half contemptuous; at any rate the life of
the villein is worth the life of twenty-four serfs[83]. Then again, it
is by no means certain that a lord can not kill his serf with impunity.
'If,' says our text, 'a man slay his own serf, his is the sin and his is
the loss':--we may interpret this to mean that he has sinned but sinned
against himself[84]. Then again, for the evil deeds of his slave the
master is in some degree responsible. If my slave be guilty of a petty
theft not worthy of death, I am bound to make restitution; if the crime
be a capital one and he be taken handhaving, then he must 'die like a
free man[85].' If my slave be guilty of homicide, my duty is to set him
free and hand him over to the kindred of the slain, but apparently I may
purchase his life by a sum of 40 shillings, a sum much less than the
_wer_ of the slain man[86]. We must not be too hard on the owners of
delinquent slaves. There are cases, for example, in which, several
slaves having committed a crime, one of them chosen by lot must suffer
for the sins of all[87]. Our author is borrowing from the laws of
several different centuries and does not arrive at any neat result; nor
must we wonder at this, for the problems presented to jurisprudence by
the crimes and delicts of slaves are very intricate. Then again, we have
the rule that if free men and serfs join in a crime, the whole guilt is
to be attributed to the free: he who joins with a slave in a theft has
no companion[88]. On the whole, though the slave is likely to have as a
matter of fact a _peculium_ of his own, a _peculium_ out of which he may
be able to pay for his offences and even perhaps to purchase his
liberty[89], the _servus_ of our Leges seems to be in the main a
rightless being. We look in vain for any trace of that idea of the
relativity of servitude which becomes the core of Bracton's
doctrine[90]. At the same time we observe that many, perhaps most, of
the rules which mark the slavish condition of the serf are ancient rules
and rules that are becoming obsolete. In the twelfth century the old
system of _wer_ and _bót_ is already vanishing, though an antiquarian
lawyer may yet try to revivify it. When it disappears altogether before
the new law, which holds every grave crime to be a felony, and punishes
almost every felony with death[91], many grand differences between the
villein and the serf will have perished. The gallows is a great
leveller.
[Return to the _servus_ of Domesday.]
If now we recur to the days of the Conquest, we cannot doubt that the
law knew a definite class of slaves, and marked them off by many
distinctions from the _villani_ and _cotarii_, and even from the
_coliberti_. Sums that seem high were being paid for men whose freedom
was being purchased[92]. At Lewes the toll paid for the sale of an ox
was a halfpenny; on the sale of a man it was fourpence[93]. In later
documents we may sometimes see a distinction well drawn. Thus in the
Black Book of Peterborough, compiled in 1127 or thereabouts, we may read
how on one of his manors the abbot has eight herdsmen (_bovarii_), how
each of them holds ten acres, has to do labour services and render
loaves and poultry. And then we read that each of them must pay one
penny for his head if he be a free man (_liber homo_), while he pays
nothing if he be a _servus_[94]. This is a well-drawn distinction. Of
two men whose economic position is precisely the same, the one may be
free, the other a slave, and it is the free man, not the slave, who has
to pay a head-penny. Now when the Conqueror's surveyors, or rather the
jurors, call a man a _servus_ they are, so it seems to us, thinking
rather of his legal status than of his position in the economy of a
manor. At any rate we ought to observe that the economic stratification
of society may cut the legal stratification. We are accustomed perhaps
to suppose that while the _villani_ have lands that are in some sense
their own, while they support themselves and their families by tilling
those lands, the _servus_ has no land that is in any sense his own, but
is fed at his lord's board, is housed in his lord's court, and spends
all his time in the cultivation of his lord's demesne lands. Such may
have been the case in those parts of England where we hear of but few
_servi_; those few may have been inmates of the lord's house and have
had no plots of their own. But such can hardly have been the case in the
south-western counties; the _servi_ are too many to be menials. Indeed
it would seem that these _servi_ sometimes had arable plots, and had
oxen, which were to be distinguished from the demesne oxen of their
lords--not indeed as a matter of law, but as a matter of economic
usage[95]. It is plain that the legal and the economic lines may
intersect one another; the menial who is fed by the lord and who must
give his whole time to the lord's work may be a free man; the slave may
have a cottage and oxen and a plot of arable land, and labour for
himself as well labouring for his lord. Hence a perplexed and uncertain
terminology:--the _servus_ who has land and oxen may be casually called
a _villanus_[96], and we cannot be sure that no one whom our record
calls a _servus_ has the wergild of a free man. Nor can we be sure that
the enumeration of the _servi_ is always governed by one consistent
principle. In the shires of Gloucester, Hereford and Worcester we read
of numerous _ancillae_--in Worcestershire of 677 _servi_ and 101
_ancillae_[97]--and this may make us think that in this district all the
able-bodied serfs are enumerated, whether or no they have cottages to
themselves[98]. We may strongly suspect that the king's commissioners
were not much interested in the line that separated the _villani_ from
the _servi_, since the lord was as directly answerable for the geld of
any lands that were in the occupation of his villeins as he was for the
geld of those plots that were tilled for him by his slaves. That there
should have been never a _theów_ in all Yorkshire and Lincolnshire is
hardly credible, and yet we hear of no _servi_ in those counties.
[Disappearance of _servi_.]
This being so, we encounter some difficulty if we would put just the
right interpretation on a remarkable fact that is visible in Essex. The
description of that county tells us not only how many _villani_,
_bordarii_ and _servi_ there are now, but also how many there were in
King Edward's day, and thus shows what changes have taken place during
the last twenty years. Now on manor after manor the number of villeins
and bordiers, if of them we make one class, has increased, while the
number of _servi_ has fallen. We take 100 entries (four batches of 25
apiece) and see that the number of _villani_ and _bordarii_ has risen
from 1486 to 1894, while the number of _servi_ has fallen from 423 to
303. We make another experiment with a hundred entries. This gives the
following result:--
1066 1086
Villani 1273 1247
Bordarii 810 1241
Servi 384 312
This decrease in the number of _servi_ seems to be pretty evenly
distributed throughout the county[99]. We shall not readily ascribe the
change to any mildheartedness of the lords. They are Frenchmen, and in
all probability they have got the most they could out of a mass of
peasantry made malleable and manageable by the Conquest. We may rather
be entitled to infer that there has been a considerable change in rural
economy. For the cultivation of his demesne land the lord begins to rely
less and less on the labour of serfs whom he feeds, more and more upon
the labour of tenants who have plots of their own and who feed
themselves. From this again we may perhaps infer that the labour
services of the _villani_ and _bordarii_ are being augmented. But at any
rate it speaks ill of their fate, that under the sway of foreigners, who
may fairly be suspected of some harshness and greed, their inferiors,
the true _servi_, are somewhat rapidly disappearing. However, it is by
no means impossible that with a slavery so complete as that of the
English _theów_ the Normans were not very familiar in their own
country[100].
FOOTNOTES:
[61] Hist. Eng. Law, i. 398.
[62] D. B. i. 34, Limenesfeld.
[63] D. B. i. 132 b, Hiz.
[64] D. B. i. 132 b, Waldenei.
[65] D. B. i. 136, Sandone.
[66] Æthelb. 26.
[67] Tacitus, Germ. c. 25: 'Caeteris servis non in nostrum morem,
descriptis per familiam ministeriis, utuntur. Suam quisque
sedem, suos penates regit. Frumenti modum dominus aut pecoris
aut vestis ut colono iniungit, et servus hactenus paret.'
[68] Haddan and Stubbs, Councils, iii. 202.
[69] See on the one hand Maurer, K. U. i. 410, on the other a
learned essay by Jastrow, Zur strafrechtlichen Stellung der
Sklaven, in Gierke's Untersuchungen zur Deutsche Geschichte,
vol. i. Maurer holds that the Anglo-Saxon slave is in the main
a chattel, that _e.g._ the master must answer for the delicts
of his slave in the same way that the owner answers for damage
done by his beasts, and that this liability can be clearly
marked off from the duty of the lord of free retainers who is
merely bound to produce them in court. Jastrow, on the
contrary, thinks that even at a quite early time the
Anglo-Saxon slave is treated as a person by criminal law; he
has a wergild; he can be fined; his trespasses are never
compared to the trespasses of beasts; the lord's duty, if one
of his men is charged with crime, is much the same whether that
man be free or bond. Any theory involves an explanation of
several passages that are obscure and perhaps corrupt.
[70] Cnut, II. 45-6.
[71] Schmid, Appendix V. (Of Ranks); Pseudoleges Canuti, 60 (Schmid,
p. 431).
[72] Leg. Hen. 76 § 7: 'Differentia tamen weregildi multa est in
Cantia villanorum et baronum.'
[73] Leg. Hen. 76 § 2.
[74] Leg. Hen. 76 § 3.
[75] Ibid. 76 § 3.
[76] Ibid. 77; see Hist. Eng. Law, i. 405.
[77] Ibid. 78 § 2. The difficult _strublum_ we leave untouched.
[78] Ibid. 78 § 2 from Cnut, II. 20. On this see Jastrow's comment,
op. cit. p. 80.
[79] Ibid. 70 § 5.
[80] Ibid. 70 § 1; 76 § 4.
[81] Ibid. 69 § 2.
[82] Ibid. 70 § 4: 'Si liber servum occidat similiter reddat
parentibus 40 den. et duas mufflas et unum pullum [_al._
billum] mutilatum.' The _mufflae_ are thick gloves. Compare
Ancient Laws of Wales, i. 239, 511; the bondman has no
_galanas_ (wergild) but if injured he receives a _saraad_; 'the
saraad of a bondman is twelve pence, six for a coat for him,
three for trousers, one for buskins, one for a hook and one for
a rope, and if he be a woodman let the hook-penny be for an
axe.' If we read _billum_ instead of _pullum_ the English rule
may remind us of the Welsh. His hedger's gloves and bill-hook
are the arms appropriate to the serf, 'servitutis arma'; cf.
Leg. Hen. 78 § 2. As to the _man-bót_ see Liebermann, Leg.
Edwardi, p. 71.
[83] In Leg. Hen. 81 § 3 (a passage which seems to show that by his
master's favour even the _servus_ may sometimes sue for a wrong
done to him) we have this sum:--_villanus_ : _cothsetus_ :
_servus_ :: 30 : 15 : 6.
[84] Ibid. 75 § 4: 'suum peccatum est et dampnum.' See also 70 § 10,
an exceedingly obscure passage.
[85] Ibid. 59 § 23.
[86] Ibid. 70 § 5; but for this our author has to go back as far as
Ine.
[87] Ibid. 59 § 25.
[88] Ibid. 59 § 24; 85 § 4: 'solus furatur qui cum servo furatur.'
[89] Ibid. 78 § 3; 59 § 25.
[90] Hist. Eng. Law, i. 398, 402.
[91] Hist. Eng. Law, ii. 457.
[92] See the Bath manumissions, Kemble, Saxons, i. 507 ff. Sometimes
a pound or a half-pound is paid.
[93] D. B. i. 26.
[94] Chron. Petrob. 163.
[95] D. B. i. 105 b, Devon: 'Rolf tenet de B[alduino] Boslie ...
Terra est 8 carucis. In dominio est 1 caruca et dimidia et 7
servi cum 1 caruca.' D. B. iv. 265: 'Balduinus habet 1
mansionem quae vocatur Bosleia ... hanc possunt arare 8
carrucae et modo tenet eam Roffus de Balduino. Inde habet R. 1
ferdinum et 1 carrucam et dimidiam in dominio et villani tenent
aliam terram et habent ibi 1 carrucam. Ibi habet R. 7 servos.'
In the Exeter record these seven serfs seem to get reckoned as
being both _servi_ and _villani_. So in the account of Rentis,
D. B. iv. 204-5, the lord is said to have one quarter of the
arable in demesne and two oxen, while the _villani_ are said to
have the rest of the arable and one team; but the only
_villani_ are 8 _coliberti_ and 4 _servi_.
[96] See last note.
[97] Ellis, Introduction, ii. 504-6.
[98] See, for example, the following Herefordshire entry, D. B. i.
180 b: 'In dominio sunt 2 carucae et 4 villani et 8 bordarii et
prepositus et bedellus. Inter omnes habent 4 carucas. Ibi 8
inter servos et ancillas et vaccarius et daia.'
[99] Mr Round has drawn attention to the great increase of
_bordarii_: Antiquary (1882) vi. 9. In the second of our two
experiments the cases were taken from the royal demesne and the
lands of the churches. The surveys of Norfolk and Suffolk
profess to enumerate the various classes of peasants T. R. E.;
but commonly each entry reports that there has been no change.
Without saying that we disbelieve these reports, we
nevertheless may say that a verdict which asserts that things
have always (_semper_) been as they now are may easily be the
outcome of nescience.
[100] Hist. Eng. Law, i. 53-4.
§ 3. _The Villeins._
[The boors or coliberts.]
Next above the _servi_ we see the small but interesting class of _buri_,
_burs_ or _coliberti_. Probably it was not mentioned in the writ which
set the commissioners their task, and this may well be the reason why it
appears as but a very small class. It has some 900 members; still it is
represented in fourteen shires: Hampshire, Berkshire, Wiltshire, Dorset,
Somerset, Devon, Cornwall, Buckingham, Oxford, Gloucester, Worcester,
Hereford, Warwick, Shropshire--in short, in the shires of Wessex and
western Mercia. Twice over our record explains--a piece of rare good
fortune--that _buri_ and _coliberti_ are all one[101]. In general they
are presented to us as being akin rather to the _servi_ than to the
_villani_ or _bordarii_, as when we are told, 'In demesne there is one
virgate of land and there are 3 teams and 11 _servi_ and 5 _coliberti_,
and there are 15 _villani_ and 15 _bordarii_ with 8 teams[102].' But
this rule is by no means unbroken; sometimes the _coliberti_ are
separated from the _servi_ and a precedence over the _cotarii_ or even
over the _bordarii_ is given them. Thus of a Wiltshire manor it is
written, 'In demesne there are 8 teams and 20 _servi_ and 41 _villani_
and 30 _bordarii_ and 7 _coliberti_ and 74 _cotarii_ have among them all
27 teams[103].' Again of a Warwickshire manor, 'There is land for 26
teams; in demesne are 3 teams and 4 _servi_ and 43 _villani_ and 6
_coliberti_ and 10 _bordarii_ with 16 teams[104].' A classification
which turns upon legal status is cut by a classification which turns
upon economic condition. The _colibertus_ we take to be an unfreer man
(how there come to be degrees of freedom is a question to be asked by
and by) than the _cotarius_ or the _bordarius_, but on a given manor he
may be a more important person, for he may have plough beasts while the
_cotarius_ has none, he may have two oxen while the _bordarius_ has but
an ox.
[The Continental colibert.]
[The English boor.]
In calling him a _colibertus_ the Norman clerks are giving him a foreign
name, the etymological origin of which is very dark[105]; but this much
seems plain, that in the France of the eleventh century a large class
bearing this name had been formed out of ancient elements, Roman
_coloni_ and Germanic _liti_, a class which was not rightless (for it
could be distinguished from the class of _servi_, and a _colibertus_
might be made a _servus_ by way of punishment for his crimes) but which
yet was unfree, for the _colibertus_ who left his lord might be pursued
and recaptured[106]. As to the Englishman upon whom this name is
bestowed we know him to be a _gebúr_, a boor, and we learn something of
him from that mysterious document entitled 'Rectitudines Singularum
Personarum[107].' His services, we are told, vary from place to place;
in some districts he works for his lord two days a week and during
harvest-time three days a week; he pays gafol in money, barley, sheep
and poultry; also he has ploughing to do besides his week-work; he pays
hearth-penny; he and one of his fellows must between them feed a dog. It
is usual to provide him with an outfit of two oxen, one cow, six sheep,
and seed for seven acres of his yardland, and also to provide him with
household stuff; on his death all these chattels go back to his lord.
Thus the boor is put before us as a tenant with a house and a yardland
or virgate, and two plough oxen. He will therefore play a more important
part in the manorial economy than the cottager who has no beasts. But he
is a very dependent person; his beasts, even the poor furniture of his
house, his pots and crocks, are provided for him by his lord. Probably
it is this that marks him off from the ordinary _villanus_ or
'townsman,' and brings him near the serf. In a sense he may be a free
man. We have seen how the law, whether we look for it to the code of
Cnut or to the Leges Henrici, is holding fast the proposition that every
one who is not a _theówman_ is a free man, that every one is either a
_liber homo_ or a _servus_. We have no warrant for denying to the boor
the full wergild of 200 shillings. He pays the hearth-penny, or Peter's
penny, and the document that tells us this elsewhere mentions this
payment as the mark of a free man[108]. And yet in a very true and
accurate sense he may be unfree, unfree to quit his lord's service. All
that he has belongs to his lord; he must be perpetually in debt to his
lord; he could hardly leave his lord without being guilty of something
very like theft, an abstraction of chattels committed to his charge.
Very probably if he flies, his lord has a right to recapture him. On the
other hand, so dependent a man will be in a very strict sense a tenant
at will. When he dies not only his tenement but his stock will belong to
the lord; like the French _colibert_ he is _mainmortable_. At the same
time, to one familiar with the cartularies of the thirteenth century the
rents and services that this boor has to pay and perform for his virgate
will not appear enormous. If we mistake not, many a _villanus_ of Henry
III.'s day would have thought them light. Of course any such comparison
is beset by difficulties, for at present we know all too little of the
history of wages and prices. Nevertheless the intermediation of this
class of _buri_ or _coliberti_ between the serfs and the villeins of
Domesday Book must tend to raise our estimate both of the legal freedom
and of the economic welfare of that great mass of peasants which is now
to come before us[109].
[Villani, bordarii, cotarii.]
That great mass consists of some 108,500 _villani_, some 82,600
_bordarii_, and some 6,800 _cotarii_ and _coscets_[110]. Though in manor
after manor we may find representatives of each of these three classes,
we can see that for some important purpose they form but one grand
class, and that the term _villanus_ may be used to cover the whole genus
as well as to designate one of its three species. In the Exon Domesday
a common formula, having stated the number of hides in the manor and the
number of teams for which it can find work, proceeds to divide the land
and the existing teams between the demesne and the _villani_--the
_villani_, it will say, have so many hides and so many teams. Then it
will state how many _villani_, _bordarii_, _cotarii_ there are. But it
will sometimes fall out that there are no _villani_ if that term is to
be used in its specific sense, and so, after having been told that the
_villani_ have so much land and so many teams, we learn that the only
_villani_ on this manor are _bordarii_[111]. The lines which divide the
three species are, we may be sure, much rather economic than legal
lines. Of course the law may recognise them upon occasion[112], but we
can not say that the _bordarius_ has a different status from that of the
_villanus_. In the Leges both fall under the term _villani_; indeed, as
hereafter will be seen, that term has sometimes to cover all men who are
not _servi_ but are not noble. Nor must we suppose that the economic
lines are drawn with much precision or according to any one uniform
pattern. Of _villani_ and _bordarii_ we may read in every county;
_cotarii_ or _coscets_ in considerable numbers are found only in Kent,
Sussex, Surrey, Middlesex, Wiltshire, Dorset, Somerset, Berkshire,
Hertford and Cambridge, though they are not absolutely unknown in
Buckingham, in Devon, in Hereford, Worcester, Shropshire, Yorkshire. We
can not tell how the English jurors would have expressed the distinction
between _bordarii_ and _cotarii_, for while the _cot_ is English, the
_borde_ is French. If we are entitled to draw any inference from the
distribution of the cottiers, it would be that the smallest of small
tenements were to be found chiefly along the southern shore; but then
there are no _cotarii_ in Hampshire, plenty in Sussex, Surrey, Wiltshire
and Dorset. Again, in the two shires last mentioned some distinction
seems to be taken between the _coscets_ and the _cotarii_, the former
being superior to the latter[113]. Two centuries later we find a similar
distinction among the tenants of Worcester Priory. There are _cotmanni_
whose rents and services are heavier, and whose tenements are
presumably larger than those of the _cotarii_, though the difference is
not very great[114].
[Size of the villain's tenement.]
The vagueness of distinctions such as these is well illustrated by the
failure of the term _bordarius_ (and none is more prominent in Domesday
Book) to take firm root in this country[115]. The successors of the
_bordarii_ seem to become in the later documents either _villani_ with
small or cottiers with large tenements. Distinctions which turn on the
amount of land that is possessed or the amount of service that is done
cannot be accurately formulated and forced upon a whole country. Perhaps
in general we may endow the _villanus_ of Domesday Book with a virgate
or quarter of a hide, while we ascribe to the _bordarius_ a less
quantity and doubt whether the _cotarius_ usually had arable land. But
the survey of Middlesex, which is the main authority touching this
matter, shows that the _villanus_ may on occasion have a whole
hide[116], that is four virgates, and that often he has but half a
virgate; it shows us that the _bordarius_, though often he has but four
or five acres, may have a half virgate, that is as much as many a
_villanus_[117]; it shows us that the _cotarius_ may have five acres,
that is as much as many a _bordarius_[118], though he will often have no
more than a croft[119]. In Essex we hear of _bordarii_ who held no
arable land[120]. Nor dare we lay down any stern rule about the
possession of plough beasts. It would seem as if sometimes the
_bordarius_ had oxen, while sometimes he had none[121]. The _villanus_
might have two oxen, but he might have more or less. We may find that
in Cornwall a single team of eight is forthcoming where there are[122]
3 villani, 4 bordarii, 2 servi
2 " 2 " 3 "
0 " 5 " 2 "
1 " 5 " 1 "
2 " 5 " 4 "
2 " 3 " 1 "
3 " 6 " 3 "
In some Gloucestershire manors every villein seems to have a full plough
team[123]. Merely economic grades are essentially indefinite. Who could
have defined a 'cottage' in the eleventh century? Who can define one
now[124]?
[Villeins and cottiers.]
In truth the vast class of men that we are examining must have been
heterogeneous to a high degree. Not only were some members of it much
wealthier than others, but in all probability some were economically
subject to others. So it was in later days. In the thirteenth century we
may easily find a manor in which the lord is paying hardly any wages. He
gets nearly all his agricultural work done for him by his villeins and
his cottiers. Out of his cottiers however he will get but one day's work
in the week. If then we ask what the cottiers are doing during the rest
of their time, the answer surely must be that they are often working as
hired labourers on the villein's virgates, for a cottier can not have
spent five days in the week over the tillage of his poor little
tenement. It is a remarkable feature of the manorial arrangement that
the meanest of the lord's _nativi_ are but rarely working for him. Thus
if we were to remove the lord in order that the village community might
be revealed, we should still see not only rich and poor, but employers
and employed, villagers and 'undersettles.'
[Freedom and unfreedom of _villani_.]