sense they are free. Let us then spend a short while in discussing the
various meanings that freedom may have in a legal classification of the
sorts and conditions of men. When we have put out of account the
rightless slave, who is a thing, it still remains possible to say that
some men are unfree, while others are free, and even that freedom is a
matter of degree. But we may use various standards for the measurement
of liberty.
[Meaning of freedom.]
Perhaps in the first place we shall think of what German writers call
_Freizügigkeit_, the power to leave the master whom one has been
serving. This power our ancestors would perhaps have called
'fare-worthiness[125].' If the master has the right to recapture the
servant who leaves his service, or even if he has the right to call upon
the officers of the state to pursue him and bring him back to his work,
then we may account this servant an unfree man, albeit the relation
between him and his master has been created by free contract. Such
unfreedom is very distinct from rightlessness. As a freak of
jurisprudence we might imagine a modern nobleman entitled to reduce by
force and arms his fugitive butler to well-paid and easy duties, while
all the same that butler had rights against all the world including his
master, had access to all courts, and could even sue for his wages if
they were not punctually paid. If we call him unfree, then freedom will
look like a matter of degree, for the master's power to get back his
fugitive may be defined by law in divers manners. May he go in pursuit
and use force? Must he send a constable or sheriff's officer? Must he
first go to court and obtain a judgment, 'a decree for specific
performance' of the contract of service? The right of recapture seems to
shade off gradually into a right to insist that a breach of the contract
of service is a criminal offence to be punished by fine or imprisonment.
Then, again, there may seem to us to be more of unfreedom in the case of
one who was born a servant than in the case of one who has contracted to
serve, though we should note that one may be born to serve without being
born rightless.
More to the point than these obvious reflections will be the remark that
in the thirteenth century we learn to think of various spheres or planes
of justice. A right good in one sphere may have no existence in
another. The rights of the villeins in their tenements are sanctioned by
manorial justice; they are ignored by the king's courts. Here, again,
the ideas of freedom and unfreedom find a part to play. True that in the
order of legal logic freedom may precede royal protection; a tenure is
protected because it is free; still men are soon arguing that it is free
because it is protected, and this probably discloses an idea which lies
deep[126]:--the king's courts, the national courts, are open to the
free; we approach the rightlessness of the slave if our rights are
recognized only in a court of which our lord is the president.
The thirteenth century will also supply us with the notion that
continuous agricultural service, service in which there is a
considerable element of uncertainty, is unfree service. Where from day
to day the lord's will counts for much in determining the work that his
tenants must do, such tenants, even if they be free men, are not holding
freely. But uncertainty is a matter of degree, and therefore unfreedom
may easily be regarded as a matter of degree[127].
Then, again, in the law books of the Norman age we see distinct traces
of a usage which would make _liber_ or _liberalis_ an equivalent for our
_noble_, or at least for our _gentle_. The common man with the wergild
of 200 shillings, though indubitably he is no _servus_, is not
_liberalis homo_[128].
Lastly, in our thirteenth century we learn that privileges and
exceptional immunities are 'liberties' and 'franchises.' What is our
definition of a liberty, a franchise? A portion of royal power in the
hands of a subject. In Henry III.'s day we do not say that the Earl of
Chester is a freer man, more of a _liber homo_, than is the Earl of
Gloucester, but we do say that he has more, greater, higher liberties.
Therefore we shall not be surprised if in Domesday Book what we read of
freedom, of free men, of free land is sadly obscure. Let us then observe
that the _villanus_ both is and is not a free man.
[The villein as free.]
According to the usual terminology of the Leges, everyone who is above
the rank of a _servus_, but below the rank of a thegn, is a _villanus_.
The _villanus_ is the non-noble _liber homo_. All those numerous
sokemen of the eastern counties whom Domesday ranks above the _villani_,
all those numerous _liberi homines_ whom it ranks above the sokemen,
are, according to this scheme, _villani_ if they be not thegns. And this
scheme is still of great importance, for it is the scheme of _bót_ and
_wer_. By what have been the most vital of all the rules of law, all
these men have been massed together; each of them has a _wer_ of two
hundred shillings[129]. This, we may remark in passing, is no trivial
sum, though the shillings are the small Saxon shillings of four pence or
five pence. There seems to be a good deal of evidence that for a long
time past the ox had been valued at 30 pence, the sheep at 5 pence[130].
At this rate the ceorl's death must be paid for by the price of some
twenty-four or thirty oxen. The sons of a _villanus_ who had but two
oxen must have been under some temptation to wish that their father
would get himself killed by a solvent thegn. Very rarely indeed do the
Leges notice the sokeman or mention _liberi homines_ so as to exclude
the _villani_ from the scope of that term[131]. Domesday Book also on
occasion can divide mankind into slaves and free men. It does so when it
tells us that on a Gloucestershire manor there were twelve _servi_ whom
the lord had made free[132]. It does so again when it tells us that in
the city of Chester the bishop had eight shillings if a free man, four
shillings if a serf, did work upon a festival[133]. So in a description
of the manor of South Perrott in Somerset we read that a certain custom
is due to it from the manor of 'Cruche' (Crewkerne), namely, that every
free man must render one bloom of iron. We look for these free men at
'Cruche' and see no one on the manor but _villani_, _bordarii_,
_coliberti_ and _servi_[134]. Of the Count of Mortain's manor of
Bickenhall it is written that every free man renders a bloom of iron at
the king's manor of Curry; but at Bickenhall there is no one above the
condition of a _villanus_[135]. Other passages will suggest that the
_villanus_ sometimes is and sometimes is not _liber homo_. On a Norfolk
manor we find free villeins, _liberi villani_[136].
[The villein as unfree.]
For all this, however, there must be some very important sense in which
the _villanus_ is not free. In the survey of the eastern counties he is
separated from the _liberi homines_ by the whole class of _sochemanni_.
'In this manor,' we are told, 'there was at that time a free man with
half a hide who has now been made one of the villeins[137].' At times
the word _francus_ is introduced so as to suggest for a moment that,
though the villein may be _liber homo_, he is not _francus_[138]. But
this suggestion, even if it be made, is not maintained, and there are
hundreds of passages which implicitly deny that the villein is _liber
homo_. But then these passages draw the line between freedom and
unfreedom at a point high in the legal scale, a point far above the
heads of the _villani_. At least for the main purposes of Domesday Book
the free man is a man who holds land freely. Let us observe what is said
of the men who have been holding manors. The formula will vary somewhat
from county to county, but we shall often find four phrases used as
equivalent, '_X_ tenuit et liber homo fuit,' '_X_ tenuit ut liber homo,'
'_X_ tenuit et cum terra sua liber fuit,' '_X_ tenuit libere[139].' But
this freeholding implies a high degree of freedom, freedom of a kind
that would have shocked the lawyers of a later age.
[Anglo-Saxon 'freeholding.']
With some regrets we must leave the peasants for a while in order that
we may glance at the higher strata of society. We may take it as certain
that, at least in the eyes of William's ministers, the ordinary holder
of a manor in the time of the Confessor had been holding it under
(_sub_) some lord, if not of (_de_) some lord. But then the closeness of
the connexion between him and his lord, the character of the relation
between lord, man and land, had varied much from case to case. Now these
matters are often expressed in terms of a calculus of personal freedom.
But let us begin with some phrases which seem intelligible enough. The
man can, or he can not, 'sell or give his land'; he can, or he can not,
'sell or give it without the licence of his lord'; he can sell it if he
has first offered it to his lord[140]; he can sell it on paying his lord
two shillings[141]. This seems very simple:--the lord can, or (as the
case may be) can not, prevent his tenant from alienating the land; he
has a right of preemption or he has a right to exact a fine when there
is a change of tenants. But then come phrases that are less in harmony
with our idea of feudal tenure. The man can not sell his land 'away
from' his lord[142], he can not give or sell it 'outside' a certain
manor belonging to his lord[143], or, being the tenant of some church,
he can not 'separate' his land from the church[144], or give or sell it
outside the church[145].
[Freeholding and the lord's rights.]
We have perhaps taken for granted under the influence of later law that
an alienation will not impair the lord's rights, and will but give him a
new instead of an old tenant. But it is not of any mere substitution
such as this that these men of the eleventh century are thinking. They
have it in their minds that the man may wish, may be able, utterly to
withdraw his land from the sphere of his lord's rights. Therefore in
many cases they note with some care that the man, though he can give or
sell his land, can not altogether put an end to such relation as has
existed between this land and his lord. He can sell, but some of the
lord's rights will 'remain,' in particular the lord's 'soke' over the
land (for the present let us say his jurisdiction over the land) will
remain[146]. The purchaser will not of necessity become the 'man' of
this lord, will not of necessity owe him any _servitium_ or
_consuetudo_, but will come under his jurisdiction[147]. Interchanging
however with these phrases[148], we have others which seem to point to
the same set of distinctions, but to express them in terms of personal
freedom. The man can, or else he can not, withdraw from his lord, go
away from his lord, withdraw from his lord's manor; he can or he can not
withdraw with his land; he can or can not go to another lord, or go
wherever he pleases[149]. Some of these phrases will, if taken
literally, seem to say that the persons of whom they are used are tied
to the soil; they can not leave the land, or the manor, or the soke.
Probably in some of these cases the bond between man and lord is a
perpetual bond of homage and fealty, and if the man breaks that bond by
refusing the due obedience or putting himself under another lord, he is
guilty of a wrong[150]. But of pursuing him and capturing him and
reducing him to servitude there can be no talk. Many of these persons
who 'can not recede' are men of wealth and rank, of high rank that is
recognized by law, they are king's thegns or the thegns of the churches,
they are 'twelve-hundred men[151].' However, it is not the man's power
to leave his lord so much as the power to leave his lord and take his
land with him, that these phrases bring to our notice; or rather the
assumption is made that no one will want to leave his lord if he must
also leave his land behind him. And then this power of taking land from
this lord and bringing it under another lord is conceived as an index of
personal freedom. Thus we read: 'These men were so free that they could
go where they pleased[152],' and again, 'Four sokemen held this land,
of whom three were free, while the fourth held one hide but could not
give or sell it[153].' Not that no one is called a _liber homo_ unless
he has this power of 'receding' from his lord; far from it; all is a
matter of degree; but the free man is freer if he can 'go to what lord
he pleases,' and often enough the phrases 'X tenuit et liber homo fuit,'
'X tenuit libere,' 'X tenuit ut liber homo' seem to have no other
meaning than this, that the occupant of the land enjoyed the liberty of
taking it with him whithersoever he would. Therefore there is no
tautology in saying that the holder of the land was a thegn and a free
man, though of course there is a sense, there are many senses, in which
every thegn is free[154]. All this talk of the freedom that consists in
choosing a lord and subjecting land to him may well puzzle us, for it
puzzled the men of the twelfth century. The chronicler of Abingdon abbey
had to explain that in the old days a free man could do strange
things[155].
[The scale of freeholding.]
Comparisons may be instituted between the freedom of one free man and
that of another:--'Five thegns held this land of Earl Edwin and could go
with their land whither they would, and below them they had four
soldiers, who were as free as themselves[156].' A high degree of liberty
is marked when we are told that, 'The said men were so free that they
could sell their land with soke and sake wherever they would[157].' But
there are yet higher degrees of liberty. Of Worcestershire it is
written, 'When the king goes upon a military expedition, if anyone who
is summoned stays at home, then if he is so free a man that he has his
sake and soke and can go whither he pleases with his land, he with all
his land shall be in the king's mercy[158].' The free man is the freer
if he has soke and sake, if he has jurisdiction over other men.
Exceptional privileges, immunities from common burdens, are already
regarded as 'liberties.' This is no new thing; often enough when the
Anglo-Saxon land books speak of freedom they mean privilege.
[Free land.]
The idea of freedom is equally vague and elastic if, instead of applying
it to men, we apply it to land or the tenure of land. Two _bordarii_ are
now holding a small plot; 'they themselves held it freely in King
Edward's day[159].' Here no doubt there has been a fall; but how deep a
fall we can not be sure. To say that a man's land is free may imply far
more freedom than freehold tenure implies in later times; it may imply
that the bond between him and his lord, if indeed he has a lord, is of a
purely personal character and hardly gives the lord any hold over the
land[160]. But this is not all. Perfect freedom is not attained so long
as the land owes any single duty to the state. Often enough--but exactly
how often it were no easy task to tell--the _libera terra_ of our record
is land that has been exempted even from the danegeld; it is highly
privileged land[161]. Let us remember that at the present day, though
the definition of free land or freehold land has long ago been fixed, we
still speak as though free land might become freer if it were 'free of
land-tax and tithe rent-charge.'
[The unfreedom of the villein.]
If now we return to the _villanus_ and deny that he is _liber homo_ and
deny also that he is holding freely, we shall be saying little and using
the laxest of terms. There are half-a-dozen questions that we would fain
ask about him, and there will be no harm in asking them, though Domesday
Book is taciturn.
[Can the villein be pursued?]
Is he free to quit his lord and his land, or can he be pursued and
captured? No one word can be obtained in answer to this question. We can
only say that in Henry II.'s day the ordinary peasant was regarded by
the royal officials as _ascriptitius_; the land that he occupied was
said to be part of his lord's demesne; his chattels were his
lord's[162]. But then this was conceived to be, at least in some degree,
the result of the Norman Conquest and subsequent rebellions of the
peasantry[163]. To this we may add that in one of our sets of Leges, the
French Leis of William the Conqueror, there are certain clauses which
would be of great importance could we suppose that they had an
authoritative origin, and which in any case are remarkable enough. The
_nativus_ who flies from the land on which he is born, let none retain
him or his chattels; if the lords will not send back these men to their
land the king's officers are to do it[164]. On the other hand, the
tillers of the soil are not to be worked beyond their proper rent; their
lord may not remove them from their land so long as they perform their
right services[165]. Whether or no we suppose that in the writer's
opinion the ordinary peasant was a _nativus_ (of _nativi_ Domesday Book
has nothing to say) we still have law more favourable to the peasant
than was the common law of Bracton's age:--a tiller who does his
accustomed service is not to be ejected; he is no tenant at will.
[Rarity of flight.]
Hereafter we shall show that the English peasants did suffer by the
substitution of French for English lords. But the question that we have
asked, so urgent, so fundamental, as it may seem to us, is really one
which, as the history of the Roman _coloni_ might prove, can long remain
unanswered. Men may become economically so dependent on their lords, on
wealthy masters and creditors, that the legal question whether they can
quit their service has no interest. Who wishes to leave his all and go
forth a beggar into the world? On the whole we can find no evidence
whatever that the men of the Confessor's day who were retrospectively
called _villani_ were tied to the soil. Certainly in Norman times the
tradition was held that according to the old law the _villanus_ might
acquire five hides of land and so 'thrive to thegn-right[166].'
[The villein and seignorial justice.]
Our next question should be whether he was subject to seignorial
justice. This is part of a much wider question that we must face
hereafter, for seignorial justice should be treated as a whole. We must
here anticipate a conclusion, the proof of which will come by and by,
namely, that the _villanus_ sometimes was and sometimes was not the
justiciable of a court in which his lord or his lord's steward presided.
All depended on the answer to the question whether his lord had 'sake
and soke.' His lord might have justiciary rights over all his tenants,
or merely over his _villani_, or he might have no justiciary rights, for
as yet 'sake and soke' were in the king's gift, and the mere fact that a
lord had 'men' or tenants did not give him a jurisdiction over them.
[The villein and national justice.]
With this question is connected another, namely, whether the _villani_
had a _locus standi_ in the national courts. We have seen six _villani_
together with the priest (undoubtedly a free man) and the reeve of each
vill summoned to swear in the great inquest[167]. One of the most famous
scenes recorded by our book is that in which William of Chernet claimed
a Hampshire manor on behalf of Hugh de Port and produced his witnesses
from among the best and eldest men of the county; but Picot, the sheriff
of Cambridgeshire, who was in possession, replied with the testimony of
villeins and mean folk and reeves, who were willing to support his case
by oath or by ordeal[168]. Again, in Norfolk, Roger the sheriff claimed
a hundred acres and five _villani_ and a mill as belonging to the royal
manor of Branfort, and five _villani_ of the said manor testified in his
favour and offered to make whatever proof anyone might adjudge to them,
but the half-hundred of Ipswich testified that the land belonged to a
certain church of St. Peter that Wihtgar held, and he offered to
deraign this[169]. Certainly this does not look as if _villani_ were
excluded from the national moots. But a rule which valued the oath of a
single thegn as highly as the oath of six ceorls would make the ceorl
but a poor witness and tend to keep him out of court[170]. The men who
are active in the communal courts, who make the judgments there, are
usually men of thegnly rank; but to go to court as a doomsman is one
thing, to go as a litigant is another[171].
[The villein and his land.]
We may now approach the question whether, and if so in what sense, the
land that the _villanus_ occupies is his land. Throughout Domesday Book
a distinction is sedulously maintained between the land of the villeins
(_terra villanorum_) and the land that the lord has _in dominio_. Let us
notice this phrase. Only the demesne land does the lord hold _in
dominio_, in ownership. The delicate shade of difference that Bracton
would see between _dominicum_ and _dominium_ is not as yet marked. In
later times it became strictly correct to say that the lord held in
demesne (_in dominico suo_) not only the lands which he occupied by
himself or his servants, but also the lands held of him by villein
tenure[172]. This usage appears very plainly in the Dialogue on the
Exchequer. 'You shall know,' says the writer, 'that we give the name
demesnes (_dominica_) to those lands that a man cultivates at his own
cost or by his own labour, and also to those which are possessed in his
name by his _ascriptitii_; for by the law of this kingdom not only can
these _ascriptitii_ be removed by their lords from the lands that they
now possess and transferred to other places, but they may be sold and
dispersed at will; so that rightly are both they and the lands which
they cultivate for the behalf of their lords accounted to be
_dominia_[173].' Far other is the normal, if not invariable, usage of
Domesday Book. The _terrae villanorum_, the _silvae villanorum_, the
_piscariae villanorum_, the _molini villanorum_--for the villeins have
woods and fisheries and mills--these the lord does not hold _in
dominio_[174]. Then again the oxen of the villeins are carefully
distinguished from the oxen of the demesne, while often enough they are
not distinguished from the oxen of those who in every sense are free
tenants[175]. Now as regards both the land and the oxen we seem put to
the dilemma that either they belong to the lord or else they belong to
the villeins. We cannot avoid this dilemma, as we can in later days, by
saying that according to the common law the ownership of these things is
with the lord, while according to the custom of the manor it is with the
villeins, for we believe that a hall-moot, a manorial court, is still a
somewhat exceptional institution.
On the whole we can hardly doubt that both in their land and in their
oxen the villeins have had rights protected by law. Let us glance once
more at the scheme of _bót_ and _wer_ that has been in force. A villein
is slain; the _manbót_ payable to his lord is marked off from the much
heavier _wergild_ that is payable to his kindred. If all that a villein
could have belonged to his lord such a distinction would be idle.
[The villein's land and the geld.]