THE UNFREE. THE SERF.
We have considered the case of the wife, the son and the daughter[323],
as far as can be done until we come to deal with the family relations;
and we have examined the position of one peculiar class of the unfree,
namely the comites or gesíðas of the kingly leaders. Another, but less
favoured, class remain to be noticed, those namely whom the Latin
authors designate by the terms Libertus and Servus, and who, among all
the nations of Germanic origin, are found under the corresponding
denominations of Lazzi or Dió, Læt or Ðeów, Lýsingr or þræl. These have
no honourable, no profitable service to compensate for the loss of
independence, but form the large body of hired cultivators, the artizans
and handicraftsmen in various branches of industry, the prædial, even
the domestic or menial servants of the free landowner.
-----
Footnote 323:
Page 129.
-----
The grounds as well as the degrees of slavery (by which term I mean
dependence, the being in the mund of another, and represented by him in
the folcmót) are various; one, viz. poverty arising from
over-population, has been noticed in the last chapter; but I agree with
Eichhorn[324] and Grimm[325], in attributing the principal and original
cause of slavery in all its branches to war and subsequent conquest.
Another and important cause is forfeiture of liberty for crime; and the
amount of dependence, the gentler or harsher condition of the serf,
depends to a great extent upon the original ground of servitude. If the
victor has a right to the life of the vanquished, which by the law of
nature is unquestionably the case, he possesses _à fortiori_ a perfect
claim to the person, the property and the services of his prisoner, if
his self-interest or the dictates of humanity induce him to waive that
right[326]. These remarks apply no doubt, in their full force, only to
our pagan forefathers; but even Christianity itself did not at once
succeed in rooting out habits which its divine precepts of justice and
mercy emphatically condemn. Beda, in his desire to prove the efficacy of
the mass for the dead[327], tells an interesting story of a young noble
who was left severely wounded on the field, after a battle between
Ecgfrið of Northumberland and Æðelred of Mercia, in the year 679.
Fearful of the consequences should his rank be discovered, he disguised
himself in the habit of a peasant, and assumed that character, at the
castle of the earl into whose hands he fell; declaring that he was a
poor, and married man[328], who had been compelled to attend the army
with supplies of provisions. But his language and manners betrayed him,
and at length, under a solemn promise of immunity, he revealed his name
and station. The reply of the earl is characteristic; he said: “I knew
well enough from thy answers that thou wert no rustic; and now indeed
thou art worthy of death, seeing that all my brothers and relations were
slain in that battle: yet I will not kill thee, lest I should break the
faith that I have pledged.” Accordingly when his wounds were healed, his
captor sold him to a Frisian in London, who, finding that he could not
be bound, finally released him on his parole and permitted him to ransom
himself. Whatever the motive, it is thus clear that the victor possessed
the right of life and death over his captive, even when taken in cold
blood; and the traditions, as well as the historical records of the
northern nations are filled with instances of its exercise.
-----
Footnote 324:
Deut. Staatsges. i. 72, § 15.
Footnote 325:
Deutsche Rechtsalterthümer, p. 320, with the numerous examples there
given. So Fleta. “Fiunt autem homines servi de iure gentium
captivitate: bella enim orta sunt, et captivitates sequutae. Fiunt
etiam de iure civili, per confessionem in curia fisci factam.” Lib. i.
c. 3. § 3.
Footnote 326:
A whole army may be devoted as victims by the conquerors. “Sed bellum
Hermunduris prosperum, Cattis exitiosius fuit, quia victores diversam
aciem Marti ac Mercurio sacravere, quo voto equi, viri, cuncta, victa
occidioni dantur.” Tac. Annal, xiii. 57. “Lucis propinquis barbarae
arae, apud quas tribunos ac primorum ordinum centuriones mactaverant:
et cladis ... superstites, pugnam aut vincula elapsi, referebant ...
quot patibula captivis, quae scrobes,” etc. Tac. Annal. i. 61.
Footnote 327:
Hist. Eccles. iv. 22.
Footnote 328:
This is confirmatory of the statement in the last chapter, that,
strictly speaking, the _Comes_ could not marry. One cannot see why the
assertion should have been made on any other grounds: his great
anxiety was to prove himself not a comes or minister, and as one
argument, he states himself to be “uxoreo nexu constrictus.”
-----
It does not however by any means follow that the total defeat of a
hostile tribe resulted in the immediate and direct enslaving of all the
survivors: as in the example just cited, the blood-feud no doubt
frequently led to the murder of the captive chiefs and nobles, even if
less justifiable motives did not counsel the same miserable means of
removing dangerous competitors[329]; but the heavy doom of death must
have been one of the melancholy privileges of the noble class: and even
though many of the common freemen may have been sold or retained as
slaves at the caprice of the captors, still we cannot suppose this to
have been the lot of any but those who had actually taken part in
combat; no natural or national law could extend these harsh provisions
to the freemen who remained quiet at home. Nevertheless even these were
liable to be indirectly affected by the hostile triumph, inasmuch as the
conquerors appear invariably to have taken a portion, more or less
great, of the territory occupied by the conquered[330]: and wherever
this is the case to the extent of depriving the cultivator of means
sufficient for his support, he has no resource but to place himself in
dependence upon some wealthier man, and lose, together with his lot or
κληρος, the right to form an integral part of the state: the degree of
his dependence, and the consequent comparative suffering to himself, may
vary with a multitude of circumstances; but the one fact still remains,
viz. that he is in the mund or hand of another, represented in the state
by that other, and consequently, in the most emphatic sense of the word,
_unfree_.
-----
Footnote 329:
After a battle between Ragnachari and Chlodowich, in which the former
was taken prisoner, the victor thus addressed him: “Cui dixit
Chlodoveus, Cur humiliasti gentem nostram, ut te vinciri permitteres?
Nonne melius tibi fuerit mori? Et elevata bipenne, in caput eius
defixit, et mortuus est. Conversusque ad fratrem eius, ait: Si tu
solatium fratri tuo praebuisses, ille ligatus non fuisset! Similiter
et ipsum in capite percussum interfecit, et mortuus est.” Gest. Reg.
Franc. (Script. Rer. Gall. et Francic. ii. 555.) It was the interest
of Chlodowich to put these princes to death, but there must still have
been some _right_ acknowledged in him to do so. He seems however to
rest it upon the disgrace which they had brought upon the mǽgburh,
_gens_ or family, by suffering themselves to be captured and bound.
Footnote 330:
“Quod Ariovistus ... in eorum finibus consedisset, tertiamque partem
agri Sequani qui esset optimus totius Galliae, occupavisset; et nunc
de altera parte tertia Sequanos decedere iuberet.” Cæs. Bell. Gall. i.
32. The same proportion of a _third_, sometimes however in produce,
not land, occurs in other cases: Eichhorn, Deut. Staatsges. i. 161
_seq._ § 23, with the accompanying quotations.
-----
It is now generally admitted that this must have been the case with the
whole population in some districts, who thus became dependent upon a few
intrusive lords: but still these populations cannot be said to have
stood in that peculiar relation to the conquerors, which the word
_servus_ strictly implies towards an owner. The utmost extent of their
subjection probably reached no further than the payment of tribute, the
exclusion from military duty and the standing under a protectorate[331].
Inglorious and easy, when once the dues of the lord were paid, they may
even have rejoiced at being spared the danger of warfare and the
laborious suit of the folcmót, and forgotten that self-government is the
inherent right and dignity of man, in the convenience of having others
to defend and rule them. Moreover the territorial subjection was not
necessarily a juridical one: indeed some of the Teutonic conquerors
recognized as positive law, the right of even the dependent Romans and
Provincials to be judged and taxed according to the rules and maxims of
Roman, not Salic or Langobardic, jurisprudence: and this, when carried
out in the fullest detail with respect to the various tribes at any time
united under one supreme head, constitutes what is now called the system
of _Personal Right_, whereby each man enjoyed the law and forms of law
to which he was born, without the least reference to the peculiar
district in which he might happen to live; in other words, that he
carried his own law about, whithersoever he went, as a quality attached
to his own person, and not in the slightest degree connected with or
dependent upon any particular locality. In this way Alamanni, Baiowari,
Saxons, Frisians, Langobards, Romans, Gallic provincials and Slavonic
populations, were all united under the empire of the Salic and Ripuarian
Franks[332]. The peculiar circumstances under which the conquest took
place must, of course, have defined the relations under which the
subject stood to the ruling state. It is conceivable that the conquerors
might not want land, but be contented with glory and pillage; or they
might not be able to seize and retain the conquered territory: or again
they may have required new settlements for themselves and their allies,
to obtain which they waged a war of extermination. Thus the Suevi,
although unable to expel the Ubii altogether from their territory, yet
succeeded in rendering them tributary[333]; while in Thuringia, the
Franks and their Saxon allies seized all the land, slaying, expelling or
completely reducing the indigenous inhabitants to slavery. Another and
curious instance may be cited from a comparatively late period, when the
little island of Man was invaded, conquered and colonized by the
Norwegian Godred. “Godredus sequenti die optionem exercitui suo dedit,
ut si mallent Manniam inter se dividere et in ea habitare, vel cunctam
substantiam terrae accipere et ad propria remeare. Hiis autem magis
placuit totam insulam vastare, et de bonis illius ditari, et sic ad
propria reverti. Godredus autem paucis qui secum remanserunt de
insulanis australem partem insulae, et reliquiis Mannensium aquilonarem
tali pacto concessit, ut nemo eorum aliquando auderet iure haereditario
sibi aliquam partem terrae usurpare. Unde accidit ut usque in hodiernum
diem tota insula solius regis sit, et omnes redditus eius ad ipsum
pertineant[334].” The not being able to dispose of property hereditarily
is the true badge and proof of slavery.
-----
Footnote 331:
This is the condition of the Perioecians in Laconia, with the
exception that these were called upon for military service. The
Helotae or Penestae were more nearly praedial serfs.
Footnote 332:
This led by degrees to the vast power and influence of all the clergy,
who were originally Roman, and who, whatever their nation might be,
lived under the Roman law, “per clericalem clericalem
Footnote 333:
Caesar, Bell. Gall. iv. 3. The Franks imposed a tribute of hides upon
the Frisians: we hear also of tribute paid them by the Thuringians,
Saxons and Slavic races.
Footnote 334:
A.D. 1056. Chron. Manniae. MS. Cott., Jul. A. VII., fol. 32.
-----
Tacitus draws a great distinction between the different degrees of
servitude among the Germans. He tells us that the unsuccessful gambler
who had staked and lost his liberty and the free disposal of his own
body upon one fatal cast of the dice, would voluntarily submit to be
bound and sold[335], but that it was not usual for them to reduce their
other serfs to the condition of menials; they only demanded from them a
certain amount of produce (or, unquestionably, of labour in the field or
pasture), and then left them the enjoyment of their own dwellings and
property[336]. The general duties of the house, beyond such supplies,
which were provided for among the Romans by the _ministeria per familiam
descripta_, were left among the Germans to the wife and children of the
householder[337]. It will be desirable to follow a somewhat similar
distinction in treating of the different kinds of slaves; and having
shown that one class of the unfree are those who have been partially
dispossessed by conquest, but retain their personal freedom in some
degree, to proceed to those who are personally unfree, the mere chattels
of a lord who can dispose of them at his pleasure, even to the extent of
sale, mutilation and death. The class we have hitherto been observing is
that intended by the term Læt in Anglosaxon, Litus, Lito, Lazzo, etc. in
German monuments[338], and the Laeti of the Romans, applied by them to
the auxiliary Germans settled on imperial land, and bound to pay tribute
and perform military service. They formed, as Grimm has well observed, a
sort of middle class among the unfree; comprising the great majority of
those who, without being absolutely their own masters, were yet placed
somewhat above the lowest and most abject condition of man, which we
call slavery. This condition among our forefathers was termed þeówet;
the _servus_ was þeów, the _ancilla_ þeówen; or, as the original serfs
of the English were the vanquished Britons, Wealh and Wyln.
-----
Footnote 335:
“Servos conditionis huius per commercia tradunt, ut se quoque pudore
victoriae exsolvant.” Germ. xxiv. The last member of the sentence is a
bit of imaginative morality which we shall acquit the Germans of
altogether. The very word _caeteris_ in the next sentence shows
clearly enough that if they did sell some slaves _conditionis huius_,
they kept others for menial functions.
Footnote 336:
“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.” Germ. xxv. This amounts to no more than the
description of a certain class of our own copyholders, of the Slavonic
holder in Bohemia or Galicia, and the peasant on a _noble session_ in
Hungary.
Footnote 337:
This is the obvious meaning of the passage, which has however been
disputed, in defiance of sense and Latin: see Walther’s edition, vol.
iv. 58. The general rule in the text is true, but where there were
slaves they were used in the house, under the superintendence of the
family. This of course applies more strongly to later historical
periods, when the slaves (domestics) had become much more numerous,
and the ladies much less domestic.
Footnote 338:
Deut. Rechtsalt. p. 305.
-----
Without confining ourselves to the definition in the law of Henry the
First, we may distribute the different kinds of slaves into classes,
according to the different grounds of slavery[339]. Thus they are serfs
_casu_ or _natura_, and the serfs _casu_ comprise serfs by the fortune
of war, by marriage, by settlement, by voluntary surrender, by crime, by
superior legal power, and by illegal power or injustice. The remaining
class are serfs _natura_, or by birth.
-----
Footnote 339:
“Servi alii natura, alii facto, et alii empcione, et alii redempcione,
alii sua vel alterius dacione servi, et si quae sunt aliae species
huiusmodi, quas tamen omnes volumus sub uno servitutis membro
constitui, quem casum ponimus appellari, ut ita dictum sit, servi alii
casu, alii genitura.” Leg. Hen. I. lxxvi. § 3.
-----
The serfs by fortune of war were those who were not left under the
public law to enjoy a portion of their ancient freedom and possessions,
but were actually reduced to a state of prædial or menial servitude by
their captors, and either reserved for household drudgery or sold, at
their arbitrary will. The Cassandra and Andromache of Grecian story
stand here side by side with our own German Gudrún. This part of the
subject has received sufficient illustration from the tale of the thane
Imma, already quoted from Beda.
The serf by marriage was the free man or free woman who contracted that
bond with a slave: in this case the free party sank to the condition of
the unfree, among some at least of the German races. The Salic law is
explicit upon this point both with respect to man and woman[340]: among
the Ripuarian Franks it was enacted thus[341]: “If a free Ripuarian
woman hath followed a Ripuarian serf, let the king or the count offer
unto her a sword and a spindle: if she accept the sword, let her
therewith slay the serf; if the spindle, let her abide with him in
servitude.” In this case the Burgundian law[342] commanded both parties
to be slain; but if the relatives of the woman would not put her to
death, she became a serf of the king. Saxo Grammaticus cites a similar
law for Denmark[343]. There is no evidence of the Anglosaxon practice in
this respect, but it appears unlikely that the case should be of common
occurrence. Probably purchase and emancipation always preceded such
marriages, and the law of Henry the First makes no mention of this among
the grounds of slavery[344].
-----
Footnote 340:
“Si quis ingenuus ancillam alienam sibi in coniugium sociaverit, ipse
cum ea in servitutem inclinetur.” Lex Sal. xiv. 11. “Si ingenua femina
aliquemcunque de illis (i. e. raptoribus non ingenuis) sua voluntate
secuta fuerit, ingenuitatem suam perdat.” Lex Sal. xiv. 7.
Footnote 341:
Lex Rip. lviii. 18.
Footnote 342:
Lex Burg. xxxv. 2, 3.
Footnote 343:
Hist. Dan. lib. v. p. 85.
Footnote 344:
The following proverbs are founded upon this legal custom:—
“Trittst du meine henne, so wirst du mein hahn.”
“Die unfreie hand zieht die freie nach sich.”
“En formariage le pire emporte le bon.”
-----
The serf by settlement is he who has taken up his abode in a district
exclusively inhabited by the unfree; and to this refers the German
expression “Die luft macht eigen,” i. e. the air makes the serf. There
is no distinct Anglosaxon provision on the subject, but perhaps we may
include in this class some at least of those who taking refuge on a
lord’s land, and among his sócmen, without any absolute and formal
surrender of their freedom, did actually become his serfs and liable to
the services due to him from all their neighbours[345]. The generality
however of such cases fall under the next following head, viz.—
The serfs by surrender, the _sua datione servus_ of Henry’s law, the
_servus dedititius_, and giafþræl of the Norse law. Among these Grimm
numbers the serfs whose voluntary submission so much surprised the Roman
philosopher. Even the law of the Germans, so generally favourable to
liberty, contemplates and provides for the case of such a voluntary
servitude[346]. This might arise in various ways. For example, a time of
severe scarcity, such as are only too often recorded in our ancient
annals, unquestionably drove even the free to the cruel alternative of
either starvation or servitude: “Subdebant se pauperes servitio, ut
quantulumcunque de alimento porrigerent,” says Gregory of Tours[347];
Gildas tells us a similar tale of the Britons[348]; and even as late as
the Norman conquest we find Geatflǽd, a lady, directing by her will the
manumission of all those who had bent their heads in the evil days for
food[349]. Another was, no doubt, debt, incurred either through poverty
or crime; and when the days of fierce and cruel warfare had passed away,
this must have been the most fertile source of servitude. I have not
found among the Anglosaxon remains any example of slavery voluntarily
incurred by the insolvent debtor, but the whole course of analogy is in
favour of its existence, and Marculf supplies us with the formulary by
which, among the Franks, the debtor surrendered his freedom to the
creditor. It may be presumed that this servitude had a term, and that a
certain period of servile labour was considered equivalent to the debt.
The case of crime was undoubtedly a very common one, especially as those
whose necessities were the most likely to bring them in collision with
the law were those also who were least able to fulfil its requirements,
by payment of the fines attached to their offences. The criminal whose
own means were insufficient, and whose relatives or lord would not
assist him to make up the legal fine he had incurred, was either
compelled to surrender himself to the plaintiff, or to some third party
who paid the sum for him, by agreement with the aggrieved party. This
was technically called þingian[350], and such a serf was called a
witeþeów, convict, or criminal slave. These are the _servi redemptione_
of Henry the First.
-----
Footnote 345:
Such may also have been malefactors, who sought an asylum in church or
other privileged lands, and who sometimes formed a very considerable
number of dependants or retainers: thus, “Contraxit universam
iuventutem Houlandiae [Holland in Lincolnshire] strenuissimus comes
Algarus, ... unà cum cohorte Croylandiae monasterii, videlicet CC
bellatoribus robustissimis, eo quod maxima pars illorum de fugitivis
fuerat.” Hist. Ingulf, p. 865.
Footnote 346:
“Si liber homo spontanea voluntate vel forte necessitate coactus,
nobili, seu libero, seu etiam lito, in personam et in servitium liti
se subdiderit.” Lex Fres. xi. 1. “Ut nullum liberum liceat inservire
... quamvis pauper sit, tamen libertatem suam non perdat nec
hereditatem suam, nisi ex spontanea voluntate se alicui tradere
voluerit, hoc potestatem habeat faciendi.” Lex Bajuv. vi. 3. The
Anglosaxon law gave this power of voluntary surrender to a boy of
thirteen. See Theod. Poenit. xxix. Thorpe, ii. 19.
Footnote 347:
Gregor. Turon. vii. 45.
Footnote 348:
“Interea fames dira ac famosissima vagis ac nutabundis haeret, quae
multos eorum cruentis compellit praedonibus sine dilatione victas dare
manus, ut pauxillum ad refocillandam animam cibi caperent.” Hist.
Brit. cap. xvii.
Footnote 349:
“Ealle ða men ðe heónon heora heáfod for hyra mete on ðám yflum
dagum.” Cod. Dip. No. 925. The instance is, I believe, a solitary one
in our records, but the cases must have been numerous.
Footnote 350:
“And eác heó hafað gefreód ða men ða heó þingede æt Cwæspatrike;” And
she hath also freed the men whom she interceded for with Cospatrick.
Cod. Dip. No. 925. Marculf gives the Frankish formulary, as follows;
it is the case of one who has been redeemed from capital punishment:
“Et ego de rebus meis, unde vestra beneficia rependere debuissem, non
habeo; ideo pro hoc statum ingenuitatis meae vobis visus sum
obnoxiasse, ita ut ab hac die de vestro servitio penitus non
discedam.” Form. Marculf. ii. 28.
-----
Serfs by force or power are not those comprised in the first class of
these divisions, or serfs by the fortune of war: these of course have
lost their freedom through superior force. But the class under
consideration are such as have been reduced to servitude by the legal
act of those who had a right to dispose of them; as, for instance, a son
or daughter by the act of the father[351]. It is painful to record a
fact so abhorrent to our Christian feelings, but there cannot be the
least doubt that this right was both admitted and acted upon. The
father, upon whose will it literally depended whether his child should
live or not, had a right at a subsequent period to decide whether the
lot of that child should be freedom or bondage[352]. Illegitimate
children, the offspring of illicit intercourse with his wyln or þeówen,
may have formed the majority of those thus disposed of by a father: but
in times of scarcity, it is to be feared that even the issue of
legitimate marriage was not always spared[353]. The Frisians, when
oppressed by the amount of Roman tribute, sold their wives and children:
“Ac primo boves ipsos, mox agros, postremo corpora coniugum aut
liberorum servitio tradebant[354]:” this is however an exceptional case,
and the sale of wives and children appears only to have been resorted to
as a last resource. But the very restriction to the exercise of this
right, within particular limits of time—which we may believe the
merciful intervention of the church to have brought about—speaks only
too plainly for its existence in England. Even as late as the end of the
seventh century, and after Christianity had been established for nearly
one hundred years in this country, we find the following very distinct
and clear recognitions of the right, in books of discipline compiled by
two several archbishops for the guidance of their respective clergy. In
the Poenitential of Theodore, archbishop of Canterbury, occurs this
passage: “Pater filium suum septem annorum, necessitate compulsus,
potestatem habet tradere in servitium; deinde, sine voluntate filii,
licentiam tradendi non habet[355].” In the somewhat later Confessionale
of Ecgberht, archbishop of York, we find: “Pater potest filium suum,
magna necessitate compulsus, in servitutem tradere, usque ad septimum
annum; deinde, sine voluntate filii, eum tradere non potest[356].” It is
however very remarkable that in the Poenitential of the same Ecgberht
the sale of a child or near relative is put down as an offence
punishable by excommunication[357]. These are the _servi alterius
datione_ of Henry the First.
-----
Footnote 351:
The wife, by the act of the husband, I think very doubtful, in point
of right. In point of fact this case may have occurred much more
frequently than our records vouch.
Footnote 352:
The illegitimate offspring of his own wife, a husband was not likely
to spare. An old German tale records this fact. Her lord returning
from a long absence and finding a child which could not be his own in
the house, was told by the faithless mother, that when walking in the
fields a flake of snow had fallen into her bosom and impregnated her.
Afterwards the husband took the child to Italy and sold him there,
excusing himself to the mother by the assertion that the heat of the
sun had melted the snow-child:—
“De nive conceptum quem mater adultera finxit;
Hunc dominus vendens liquefactum sole retulit.”
Footnote 353:
Lingard (A. S. Church, i. 45) accuses the pagan Saxons of selling
their children into foreign slavery. I am not sure that this is not
asserted too strongly by this estimable author, who appears unjustly
to depreciate the Saxons, in order to enhance the merit of their
convertors. I admit the probability of the fact, only because the
right is a direct corollary from the paternal power, and because
Archbishops Theodore and Ecgberht (the first a Roman missionary)
recognize it; but I cannot suppose its exercise to have been common.
Footnote 354:
Tac. Annal. iv. 72.
Footnote 355:
Theodori Arch. Cant., Liber Poenitentialis, xxviii. Thorpe, A. S.
Laws, ii. 19.
Footnote 356:
Confessionale Ecgberhti Arch. Ebor. xxvii. Thorpe, ii. 153.
Footnote 357:
The only way of getting rid of this strange contradiction is, either
to assume the passage to be a later interpolation, which there is no
ground for, save the contradiction itself; or to take the passage in
connection with Theodor. Poen. xlii. § 3, 4, 5, which refer to sale of
a Christian among Jews or Heathens, and generally to fraudulent or
illegal sale. But then, one cannot understand why the words “infantem
suum proprium, vel proximum suum cognatum” should have been introduced
by Ecgberht, though omitted by Theodore. Perhaps we may reconcile the
passages, by assuming Ecgberht to refer to an illegal sale, viz. when
the child was above seven years old, but still in the same category as
those for whose safety Theodore provides by the same ecclesiastical
penalty. The child or very near relation were precisely those who were
most liable to be in “alteram regionem seducti, furati,” etc.
-----
The next head includes the serfs by reason of crime. The distinction
between these and the class of criminals who became slaves through
compact or redemption, is that in their case servitude was the direct
punishment of their offence, and not merely an indirect and mediate
consequence. It seems to me at least that this sense strictly lies at
the foundation of two laws of Eádweard, Ælfred’s son; of these the
former says[358], “If any one through conviction of theft forfeit his
freedom, and deliver himself up, and his kindred forsake him, and he
know not who shall make bót for him; let him then be worthy of the
þeówwork which thereunto appertained; and let the wer abate from the
kindred.” Again, “If a freeman work upon a festival day, let him lose
his freedom, or pay the wíte or lahslite[359].” This alternative is an
alleviation of the strict law: but as forfeiture undoubtedly followed
upon theft and other offences, the thief could not expect to make bót
for himself, and was always exposed to the danger of incurring slavery,
should another make it for him. It is however possible that his
relations may have interfered to save him, without the reducing him to a
_servus dedititius_; or even if he were so reduced, he became the serf
of him that engaged (þingode) for him; whereas, if not rescued at all,
he must have been a fiscal serf, in the hands of the crown or the
geréfa, its officer. There exists therefore a perceptible difference
between the wíteþeów whom the law made so, (even though it permitted a
merciful alternative,) and the wíteþeów whose punishment would have been
a mulct which exceeded his means. The law of other German tribes numbers
slavery among its punishments without any reservation at all: thus among
the Visigoths, he that assisted in the escape of a serf, and neither
restored him nor his worth to the owner, was to become a slave in his
place[360]. By the Bavarian law, he that could not pay a wergyld due
from him, was to be enslaved together with his wife and children[361].
Grimm[362] cites the following case: “Richilda, quae libertatem suam
fornicando polluit, amisit ... filiae illorum liberae permaneant, ...
nisi forte adulterio vel fornicatione polluantur.” It is true that the
Anglosaxon laws do not give us any enactment of a corresponding nature:
nevertheless I entertain no doubt that incontinence was a ground of
slavery in the case both of man and woman. Toward the end of the ninth
century, Denewulf, bishop of Winchester, leased the lands of Alresford
to a relative of his own, on condition of a yearly rent: “Is equidem
insipiens, adulterans, stuprum, propriam religiose pactatam abominans,
scortum diligens, libidinose commisit. Quo reatu, omni substantia
peculiali recte privatus est, et praefatum rus ab eo abstractum rex
huius patriae suae ditioni avidus devenire iniuste optavit[363].”
However unjust the canons of Winchester might think it, it is clear that
the Witena-gemót did not; for the bishop was obliged to pay 120
mancusses in gold to the king, to have back his own land. Again in the
year 1002, we hear of a lady forfeiting her lands to the king, by reason
of incontinence[364]. The consequences of this destitution can hardly
have been other than servitude; and it may be at once admitted that
where there were no lands to forfeit, servitude was the recognized
punishment of the offence. Theodore[365] when apportioning the penance
due to it, says, “Si intra viginti annos puella et adolescens
peccaverint, i annum, et in secundo iii quadragesimas ac legitimas
ferias. Si propter hoc peccatum servitio humano addicti sunt, iii
quadragesimas.” Again, “Maritus si ipse seipsum in furto aut
fornicatione servum facit, vel quocunque peccato[366],” etc.
-----
Footnote 358:
Leg. Eádw. § 9.
Footnote 359:
Eád. and Guð. § 7.
Footnote 360:
Leg. Visig. ix. § 1, 2.
Footnote 361:
Leg. Bajuv. i. § 11.
Footnote 362:
D. Rechtsalt. p. 329.
Footnote 363:
Cod. Dip. No. 601.
Footnote 364:
Ibid. No. 1296.
Footnote 365:
Lib. Poenit. xvi. § 3. Thorpe, ii. 9.
Footnote 366:
Thorpe, ii. 9, note 4.
The last division of the _servi casu_ comprises those who have been
reduced to slavery by violence or fraud, in short illegally.
Illegitimate children, poor relations, unfriended strangers, young
persons without power of self-defence, may thus have been seduced or
forced into a servile condition of life, escape from which was always
difficult, inasmuch as there is necessarily a _prima facie_ case against
the serf, and he can have no standing in the court composed only of the
free. To this head seem referable the passages I have already alluded to
in Theodore’s Poenitential[367], and which I will now cite at length:
“Si quis Christianus alterum Christianum suaserit, ac in alteram
regionem seduxerit, ibique eum vendiderit pro proprio servo, ille non
est dignus inter Christianos requiem habere, donec redimat eum et
reducat ad proprium locum.” And again: “Si quis Christianus alterum
Christianum vagantem reppererit, eumque furatus fuerit ac vendiderit,
non debet habere inter Christianos requiem, donec redimat eum, et pro
illo furto septem annos poeniteat[368].”
-----
Footnote 367:
_Supra_, p. 200, note 2.
Footnote 368:
Lib. Poenit. Theod. xlii. § 4. 5. See also xxiii. § 13.
-----
The other great division includes all the _servi natura_, _nativi_, or
serfs by reason of unfree birth; and as these are necessarily the
children either of parents who are both unfree, or (under particular
circumstances) of one unfree parent, it follows that their hereditary
condition may arise from any one of the conditions heretofore under
examination. All the legitimate children of two serfs are themselves
irrevocably serfs[369]: but some distinctions arise where the parents
are of unequal condition, as where the mother is free, the father
unfree, and _vice versa_. In this respect the law was very different
among the different tribes: the Swedish law declared in favour of
liberty[370], the German generally the other way[371]. The
Sachsenspiegel decides that the children follow the father’s right[372],
and similarly the law of Henry the First[373] has, “Si quis de servo
patre natus sit et matre libera, pro servo reddatur occisus;” and again,
“Si pater sit liber et mater ancilla, pro libero reddatur occisus;” on
the general principle that “semper a patre non a matre generacionis ordo
texitur,” which Fortescue confirms, saying[374], “Lex Angliae nunquam
matris, sed semper patris conditionem imitari partum iudicat, ut ex
libera etiam ex nativa non nisi liberum liber generet, et non nisi
servum in matrimonio procreare potest servus.” Fleta’s argument rests
upon the same doctrine[375]. Glanville however appears to adopt the
contrary view[376], which agrees with the maxim of the civil law,
“Partus sequitur ventrem.” To the English principle I am bound to give
my adhesion, inasmuch as the natural and the original social law can
recognize none but the father, either in the generation, or in the
subsequent rule, of the family: whatever alleviation the practices of
chivalry, the worship of the Virgin mother, and the Christian doctrine
of the equality of man and woman before God, may have introduced, the
original feeling is on the father’s side, and the foundations of our law
are based upon the all-sufficiency of his right. A woman is in the mund
or keeping of a man; society exists for men only, that is, for women
merely as far as they are represented by a man.
-----
Footnote 369:
Theod. Poen. xvi. § 33. Ecgb. Poen. xxv.
Footnote 370:
Deut. Rechtsalt. p. 324.
Footnote 371:
Ibid. p. 324.
Footnote 372:
Sachs. iii. 73.
Footnote 373:
Leg. Hen. I. lxxvii. § 1, 2.
Footnote 374:
Commend. cap. xlii.
Footnote 375:
Lib. i. cap. 3. § 2.
Footnote 376:
“Sunt autem nativi a prima nativitate sua; quemadmodum si quis fuerit
procreatus ex nativo et nativa, ille quidem nativus nascitur. _Idem
est si ex patre libero et matre nativa._ Sed si ex matre libera et
patre nativo, idem est dicendum quantum ad status integritatem.” Lib.
v. cap. 6. But the passage in italic is wanting in some manuscripts,
and may possibly have been the gloss or addition of a civilian.
That this original right was interfered with by the law of property is
not denied. But here different cases are to be considered. First,
whether the serf or _nativa_ is the property of the party who unites
with him or her. Secondly whether the free party unite with some other
owner’s serf or neif; next, whether the issue are born in wedlock or
not; and lastly how far the public law and right is involved in the
question of freedom and servitude. The last consideration in fact
involves the first, because, under the first, except in the case of
hardly intelligible neglect, marriage could never take place between two
unequal parties at all: emancipation must have preceded the ceremony;
while the civil law would of course rule that the ceremony itself,
taking place by consent, was an act of emancipation not to be gainsaid.
It is therefore with regard to third parties only that a question can
arise[377]. There is no proof that such a question ever did arise among
the Anglosaxons, or that it was thought needful to provide for it by
law: and the earlier evidences with which this book has especially to do
are either entirely silent, or so general in their expressions that we
cannot decide from them upon a particular case. In fact the whole
argument is reduced to the second head, viz. where one parent is the
property of a third party, and where the child is born in lawful
wedlock; for a child not so born is not subject to any law which binds
the parents, is _nullius filius_, and can as little be injured as
advantaged by the law.
-----
Footnote 377:
Of course (except under circumstances which the Christian clergy, and
probably even the heathen priesthood,—and if neither of these, yet the
universal human feeling—would condemn,) the issue of such marriage
could not have been treated as unfree, during the life of the father.
But a question might arise after death, and on subsequent inheritance
by third parties. And cases might occur where the public right
rendered it necessary to take care that the unfree should not enjoy
the advantages of freedom.
-----
In the strict Anglosaxon law there is no definite decision on these
points: the codes of other German races, at the oldest period, are
equally silent. In later times indeed we have determinations; but these,
as we have observed, are contradictory. Perhaps we may take the doctrine
of the Sachsenspiegel, coinciding as it does with the opinion of many,
probably a majority, of our own law-sages, as the original one,
especially as it is the only one in accordance with other details of
family life, and with the supreme law of nature itself which leaves to
the father the decision as to the life or death of the child, as to its
liberty or slavery. In this sense then I agree with Sir John Fortescue
and Sir Edward Coke[378]. It is to be remembered that we are dealing now
with the condition of the offspring, not of the parent: the uncertainty
that prevails with respect to the latter, in the Anglosaxon law, and the
contradictory enactments of other German codes have been already
noticed.
But all that has been said applies solely to the case of children born
in lawful wedlock; and almost all the apparent contradictions which have
been noticed in our own law, arise from a want of clear distinction on
this point. The child of a free father and unfree mother, if the parents
were not married, remained to the lord of the neif, according to our
expressive proverb, “Mine is the calf that is born of my cow[379].” In
Fleta’s words[380] the distinction is drawn most clearly, and they may
therefore stand here in place of my own: “Servi autem aut nascuntur aut
fiunt; nascuntur quidem ex nativo et nativa solutis vel copulatis, et
eius erit servus in cuius potestate nasci contigerit[381]; dum tamen de
soluta nativa, domini loci, quia sequitur conditionem matris, a
quocunque fuerit genitus, libero vel nativo[382]. Si autem copulati
fuerint et genitus fuerit partus a libero, licet a nativa, partus erit
liber; et si de servo et libera in matrimonio, servus erit.” Thus, here
again the offspring follows the father, as soon as there is a marriage
to determine that there is an offspring at all, in law; but if there be
no marriage, the chattel thrown into the world, like any other waif or
stray belongs _domino loci_; it has a value, can be worked or sold; it
is treasure-trove of a sort, and as it belongs to nobody else, falls to
the lord, as a compensation probably for the loss of his neif’s services
during pregnancy and the nonage of the child[383].
-----
Footnote 378:
Co. Litt. § 187, 188.
Footnote 379:
Take an instance, though with a wider application, from Shakspeare,
King John, act i. sc. 2.
Footnote 380:
Lib. i. cap. 3. § 2.
Footnote 381:
That is, if the serfs of two different lords, then the child to follow
the mother.
Footnote 382:
In the event of there being no marriage. The case of a marriage is
very different, and provided for in the next sentence.
Footnote 383:
Mr. Allen in his valuable notes upon the law of Henry the First
(published by Thorpe in his Anglosaxon Laws, i. 609-631) has some
remarks upon the whole subject, as considered by our Norman jurists.
His conclusions coincide generally with mine, and he says (p. 628),
“The Mirror [Sachsenspiegel] makes the marriage of the parents an
essential condition to the liberty of the offspring,” etc.
-----
Whatever the origin of serfage may have been, it can hardly be
questioned that the lot of the serf was a hard one; and this perhaps not
so much from the amount of labour required of him, as from the total
irresponsibility of the master, in the eye of the law, as to all
dealings between himself and his þeów. The Christian clergy indeed did
all they could to mitigate its hardships, but when has even Christianity
itself been triumphant over the selfishness and the passions of the mass
of men! The early pagan Germans, though in general they treated their
serfs well, yet sometimes slew them, under the influence of unbridled
passion: “Verberare servum ac vinculis et opere coercere rarum. Occidere
solent, non disciplina et severitate, sed impetu et ira, ut inimicum,
nisi quod impune est[384].” The church affixed a special penance to the
manslaughter of a woman by her mistress, _impetu et ira_,—an event which
probably was not unusual, considering the power of a lord over his
þeówen or female slave,—and generally, a penance for the slaughter of a
serf by his lord without judicial authority[385].
-----
Footnote 384:
Tac. Germ. xxv.
Footnote 385:
“Si faemina, furore zeli accensa, flagellis verberaverit ancillam
suam, ita ut infra diem tertium animam cruciatu effundat, et quod
incertum sit, voluntate an casu occident; si voluntate, vii annos; si
casu, per quinquennii tempora, ac legitima poenitentia, a communione
placuit abstinere.” Poen. Theod. xxi. § 13. “Si quis servum proprium,
sine conscientia iudicis, occiderit, excommunicatione vel poenitentia
biennii reatum sanguinis emundabit.” Ibid. § 12. Even as late as the
seventeenth century in France, it appears that it was usual to flog
the valets, pages and maids, in noble houses. Tallemant des Réaux
mentions a riot which arose in Paris from a woman’s being whipped to
death by her mistress, in August 1651. See his Historiettes, viii. 80;
x. 255, etc.
-----
In contemplation of law, in fact, the slave is the absolute property of
his lord, a chattel to be disposed of at the lord’s pleasure, and having
a value only for the benefit of the lord, or of some public authority in
his place. The serf cannot represent himself or others: his interests
must be guarded by others, for he himself has no standing in any public
court. He is not in any friðborh, or association for mutual guarantee,
for he has nothing of his own to defend, and no power to defend what
another has. If he be slain by a stranger, his lord claims the damages,
and not his children: if the lord himself slay him, it is but the loss
of so much value,—a horse, an ox, gone—more or less. Out of his death no
feud can arise, for the relatives who allowed him to fall into, or
remain in slavery, have renounced the family bond, and forfeited both
the wergyld and the mund. If he be guilty of wrong, he cannot make
compensation in money or in chattels; for he can have no property of his
own save his skin: thus his skin must pay for him[386], and the lash be
his bitter portion. He cannot defend himself by his own oath or the
oaths of friends and compurgators, but, if accused, must submit to the
severe, uncertain and perilous test of the ordeal. And if, when thus
hunted down, he be found guilty, severe and ignominious
punishment,—amounting, in a case of theft, to death by flogging for men,
by burning for women,—is reserved for him[387]. Naturally and originally
there can be no limitation in the amount or the character of labour
imposed upon him, and no stipulation for reciprocal advantage in the
form of protection, food or shelter. Among the Saxons the wíteþeów at
least appears to have been bound to the soil, _adscriptus glebae_[388],
conveyed with it under the comprehensive phrase “mid mete and mid
mannum:” though in some few cases we can trace a power, vested perhaps
only in certain public authorities, of transferring the slave from one
estate to another[389]. Last, but most fearful of all, the taint of
blood descended to his offspring, and the innocent progeny, to the
remotest generations, were born to the same miserable fate as bowed down
the guilty or unfortunate parent.
Footnote 386:
The compensation for a flogging was called hídgeld.
Footnote 387:
Leg. Æðelst. iii. § 6. Thorpe, i. 219.
Footnote 388:
Cod. Dipl. Nos. 311, 1079.
Footnote 389:
Ibid. No. 311. The serfs mentioned in this document were at first
attached to the royal vill of Bensington; but were now transferred to
the land of the church at Radnor, with their offspring, and their
posterity for ever.
But yet there was a gleam of hope: one solitary ray that made even the
surrounding darkness tolerable, and may have cheered the broken-hearted
serf through years of unrequited toil and suffering. The law that
reduced him to slavery made it also possible that he should be restored
to freedom. It did not shut from him this blessing, however distant it
might seem. Tacitus knew of _liberti_ among the Germans, men who had
been slaves, had been manumitted, and were free[390]. Thus in yet pagan
times, general kindliness of disposition, habits of domestic
intercourse, perhaps the suggestions of self-interest, may have tended
to raise the condition of the serf even to the restoration of freedom:
but it was the especial honour and glory of Christianity, that while it
broke the spiritual bonds of sin, it ever actively laboured to relieve
the heavy burthen of social servitude. We are distinctly told that
Bishop Wilfrið, on receiving the grant of Selsey from Caedwealha of
Wessex, immediately manumitted two hundred and fifty unfortunates, whom
he found there attached to the soil,—that those, whom by baptism he had
rescued from servitude to devils, might by the grant of liberty be
rescued from servitude to man[391]. In this spirit of charity, the
clergy obtained respite from labour for the þeów on the Sabbath, on
certain high festivals and on the days which preceded or followed
them[392]; the lord who compelled his þeów to labour between the sunset
on Saturday and the sunset on Sunday, forfeited him altogether[393];
probably at first to the king or the geréfa; but in the time of Cnut the
serf thus forfeited was to become _folkfree_[394]. To their merciful
intervention it must also be ascribed that the will of a Saxon
proprietor, laic as well as clerical, so constantly directs the
manumission of a number of serfs, for the soul’s health of the
testator[395]; Ælfred even goes so far as to give free power to the serf
of bequeathing to whomsoever he pleases, whatever may have been given
him for God’s sake, or he may have earned in his own moments of
leisure[396]; and this provision, which probably implies a prohibition
to the lord of removing his labourer arbitrarily from a plot of ground
well cultivated by his own efforts, tends to secure to the unfortunate
serf some interest in the produce of his industry: the Hungarian will
recognize in it the spirit of Maria Theresia’s _Urbarium_. It is
moreover obvious from many surviving documents, that, in the later
periods, the serf could purchase his own release[397], at least with the
lord’s consent[398], or be bought by another for the purpose of
manumission[399], or even be borrowed on pledge for a term of
years[400], during which his labour might be actively employed in laying
up the means of future freedom. It cannot indeed be denied that the
slave might be sold like any other chattel, and that even as late as
Æðelred and Cnut, the law ventured to prohibit no more than the selling
him into heathendom, or without some fault on his part[401]: nor can we
believe that acts of the grossest oppression and tyranny were
unfrequent. But from what has been already cited, it must be evident
that there was a constantly growing tendency in favour of freedom, that
the clergy suggested every motive, and the law made every possible
effort, at least to diminish the more grievous circumstances of
servitude. It is moreover to be borne in mind that a very large
proportion of the þeówas at any given time, were in reality criminal
serfs, convicts expiating their offences by their sufferings. Taking all
the circumstances into consideration, I am disposed to think that the
mere material condition of the unfree population was not necessarily or
generally one of great hardship. It seems doubtful whether the labour of
the serf was practically more severe, or the remuneration much less than
that of an agricultural labourer in this country at this day: his lord
was bound to feed him for his own sake, and if, when old and worn out,
he wished to rid himself of a useless burthen, he could by an act of
emancipation hand over his broken-down labourer to the care of a Church
which, with all its faults, never totally lost sight of the divine
precepts of charity[402]. We are not altogether without the means of
judging as to the condition of the serf, and the provision made for him;
although the instances which we may cite are not all either of one
period, or one country, or indeed derived from compilations having the
authority of law, they show sufficiently what opinion was entertained on
this subject by some among the ruling class. In the prose version of
Salomon and Saturn[403], it is said that every serf ought to receive
yearly seven hundred and thirty loaves, that is, two loaves a day,
beside morning meals and noon meals; this cannot be said to be a very
niggardly portion. Again, the valuable document entituled, “Rectitudines
singularum personarum[404],” gives details respecting the allowances
made to the serfs in various prædial or domestic capacities, which would
induce a belief not only that they were tolerably provided for, but even
enabled by the exertion of skill and industry to lay up funds of their
own towards the purchase of their freedom, the redemption of their
children, or the alleviation of their own poverty. From the same
authority and others, we may conclude that on an estate in general,
serfs discharged the functions of ploughman, shepherd, goatherd,
swineherd, oxherd and cowherd, barn-man, sower, hayward, woodward,
dairymaid, and beadle or messenger; while the geneát, cotsetla, gebúr,
beócere and gafolswán were probably poor freemen from whom a certain
portion of labour could be demanded in consideration of their
holdings[405], or a certain rent (gafol) reserved out of the produce of
the hives, flocks or herds committed to their care: and these formed the
class of the _Læt_ and _Esne_, poor mercenaries, serving for hire or for
their land, but not yet reduced so low in the scale as the þeów or
wealh. It is not only probable that there would be distinctions in the
condition of various serfs upon the same estate, but even demonstrable:
it can hardly be doubted that men placed in situations of some trust, as
the ploughman, oxherd or beadle, were in a somewhat higher class, and of
better condition, than the mere hewers of wood and drawers of water. Now
in a charter of the year 902, we find an interesting statement, which I
must take leave to cite[406]: Denewulf bishop of Winchester and his
Chapter had leased land at Eblesburne to Beornwulf, a relative of the
bishop: the Chapter sent word to Beornwulf that the men, that is the
serfs, were to remain attached to the land—“ðæt ða men móston on ðam
lande wunian”—whether he, or any other, held it: “ðonne wǽron ðǽr þreo
wíteþeówe men búrbǽrde, ⁊ þreo þeówbǽrde, ða me salde bisceop ⁊ ða hiwan
tó rihtre ǽhte ⁊ hira teám:” “Now there were three convicts búrbǽrde and
three þeówbǽrde, whom the bishop and the brethren gave me, together with
their offspring.” The expressions used in this passage seem to show that
some of the wíteþeówe men upon this estate enjoyed a higher condition
than others[407], being _cultivators_ or _boors_, while the others were
more strictly slaves. The very curious and instructive dialogue of
Ælfríc numbers among the serfs the yrðling or ploughman, whose
occupation the author nevertheless places at the head of all the crafts,
with perhaps a partial exception in favour of the smith’s[408].
-----
Footnote 390:
Tac. Germ. xxv.
Footnote 391:
Bed. H. E. iv. 13.
Footnote 392:
Leg. Wihtr. § 9, 10. Ini, § 3. Edw. Guð. § 7. Æðelr. viii. § 2.
Footnote 393:
Leg. Ini, § 3.
Footnote 394:
Cnut, Leg. Sec. § 45.
Footnote 395:
Cod. Dipl. Nos. 716, 721, 722, 782, 788, 919, 925, 931, 946, 947, 957,
959, 981.
Footnote 396:
Leg. Ælf. § 43. Æðelred (viii. § 2) permits the serf to labour on his
own account, three days before Michaelmas. Theodore (Poen. xix. § 30)
and Ecgberht (Poen. Addit. § 35) forbid the lord to rob his serf of
what he may have acquired by his own industry. It was nevertheless
held by some that the serf could not purchase his own freedom.
Footnote 397:
This is true only of the Saxon, not of the Norman period. Glanville
expressly denies that the serf could redeem himself. “Illud tamen
notandum est, quod non potest aliquis, in villenagio positus,
libertatem suam propriis denariis suis quaerere. Posset enim tunc a
domino suo secundum ius et consuetudinem regni ad villenagium
revocari; _quia omnia catalla cuiuslibet nativi intelliguntur esse in
potestate domini sui_, [per] quod propriis denariis suis versus
dominium suum a villenagio se redimere non poterit.” Glanv. lib. v.
cap. 5.
Footnote 398:
Cod. Dipl. Nos. 933, 934, 935, 936, 981 (the 31st paragraph).
Footnote 399:
Ibid. No. 981 (the 28th paragraph).
Footnote 400:
Ibid. No. 975.
Footnote 401:
Leg. Æðelr. v. § 2; vi. § 9. Cnut, Leg. Sec. § 3.
Footnote 402:
The Romans used to slay their infirm and useless serfs, or expose them
in an island of the Tiber. Claudius made several regulations in their
favour. “Cum quidam aegra et affecta mancipia in insulam Aesculapii
taedio medendi exponerent, omnes, qui exponerentur, liberos esse
sanxit, nec redire in ditionem domini, si convaluissent; quod si quis
necare mallet quem quam exponere, caedis crimine teneri.” Suet. in
Claud. 25.
Footnote 403:
See _supra_, p. 38, note 1.
Footnote 404:
Thorpe, A. S. Laws, i. 432, and a later edition by Dr. H. Leo of
Halle, 1842.
Footnote 405:
This is the _Robot_ of Slavonic countries, the _Operatio_ of our
Norman law; a mere labour-rent, necessary in countries where there is
no accumulated capital, and wealth (for want of markets) consists only
in land, and limbs wherewith to till it.
Footnote 406:
Cod. Dip. No. 1079.
Footnote 407:
The compounds of _bǽrde_ cannot denote anything but a permanent
condition or quality: they are nearly equivalent to the compounds of
_cund_, excepting that they are necessarily _personal_.
Footnote 408:
Thorpe, Analecta.
-----
Servitude ceased by voluntary or compulsory manumission on the part of
the lord; the latter case being that where the services of the slave
were forfeited through the misconduct of the master. And as loss of
liberty must be considered in the main as a consequence of the public
law, understood in the general, and expressed in the particular case, so
must it I think be asserted, that _at first_ emancipation depended in
some degree upon the popular will as well as the mercy or caprice of
private individuals. It is no doubt true, that at a period when what we
now call crimes were rather considered in the light of civil injuries,
for which satisfaction was due to the parties injured, it might seem
reasonable to leave the latter in possession of the power to assess the
minimum, at least, of his own satisfaction: to allow him to decide how
long a period of servitude he would content himself with, if he chose to
renounce the right he possessed of claiming an endless one; or lastly,
to reward good and faithful service by cancelling the consequences of an
earlier wrong. But emancipation has two very different effects: it not
only relieves the serf from personal burthens and disabilities, but it
restores or introduces a citizen to political and public rights. In a
state of society where landed possession and the exercise of such rights
are inseparable, a grave difficulty arises, viz. how can provision be
made for the newly emancipated, and now free man? If the community will
consent, and possess the means, to create a new free Hide for his
occupation, of course the matter can be managed; but this consent
renders the emancipation in reality the act of the state, not of the
manumittor. Or the lord on restoring freedom to his serf may endow him
with a portion of his own land, sufficient for easy or even wealthy
subsistence; but this will not make him fully a free man, give him his
full position in the πολιτευμα or polity, and place him on a level with
the free inhabitants of the Mark.
Till periods very late in comparison with that which is assumed in the
course of this argument, a similar principle prevails in our legislation
upon this subject. Glanville says, “It is also to be observed that a man
may enfranchise his serf in respect of the persons of himself or his
heirs, but not in respect of others. For if any one, having once been a
serf, and afterwards having attained to freedom in this manner, should
be produced in court against a third party to support a cause, or for
the purpose of making any law of the land, he may justly be removed
therefrom, if his birth in villenage should be objected to and proved
against him in the court, even though the serf so enfranchised should
have come to be promoted unto a knight’s degree[409].”
-----
Footnote 409:
Lib. v. cap. 5.
-----
Later still, liberty seems considered as a privilege the value of which
might be diminished by its extension; and Fleta gives as a reason why
the lord is bound to pursue his fugitive serf, “lest by _negligence_ of
the lords, serfs should prevail to assert their own freedom[410].”
-----
Footnote 410:
Lib. i. cap. 7, § 7, 8.
-----
On consideration therefore of all the facts, we must conclude that where
full and complete manumission was intended, the transaction could only
be completed in the presence and with the co-operation of the community,
whereby all claims besides those of the manumitting lord would be
formally estopped for the future. And this would be nearly equivalent to
the admission (rare indeed) of a metic or other stranger to the full
rights of citizenship at Athens, which could hardly have effect without
a ψήφισμα or deliberate vote of the whole people[411]. Accordingly even
in the laws of William the Conqueror and Henry the First we find
evidence that the completest publicity was given to formal
manumissions[412]; and it is not unreasonable to believe that this
refers back to a time when such publicity may have consisted in the
presentation of the serf before the assembled folcmót, and their
expressed or implied assent to the solemn act.
-----
Footnote 411:
The slaves who fought on the Athenian side at Arginusae were
manumitted and enrolled among the Plataeans, being thus admitted into
the πολίτευμα. We learn this from a fragment of Hellanicus, preserved
in the Scholiast on Arist. Ran. 694: the words are, τοὺς
συνναυμαχήσαντας δούλους Ἑλλάνικός φησιν ἐλευθερωθῆναι, καὶ
ἐγγραφέντας ὡς Πλαταιεῖς συμπολιτεύσασθαι αὐτοῖς. See also Niebuhr
(Hare and Thirlwall), p. 204. The Langobards upon a somewhat similar
occasion manumitted their serfs. “Igitur Langobardi, ut bellatorum
possint ampliare numerum, plures a servili iugo ereptos, ad libertatis
statum perducunt. Utque rata eorum haberi posset libertas, sanciunt,
more solito, per sagittam, inmurmurantes nihilominus, ob rei
firmitatem, quaedam patria verba.” Paul. Diac. de Gest. i. 13.
Footnote 412:
“Si qui vero velit servum suum liberum facere, tradat eum vicecomiti,”
etc. Leg. Wil. iii. § 15. “Qui servum suum liberat, in aecclesia, vel
mercato, vel comitatu, vel hundreto,” etc. Leg. Hen. I. 1, § 78.
Practically however, it is probable that the dissolution of servitude
did not absolutely confer all the privileges of freedom. The numerous
acts of manumission directed by the wills of great landowners are
totally inconsistent with the notion of any interference on the part of
the assembled people, as necessary to their validity: the instances, it
is true, are mostly of modern date, but still we hear of manumissions by
wholesale at very early periods, where nothing but the lord’s own will
can possibly be thought of[413]. It seems therefore probable that a
certain amount of dependence was reserved; that the freedman became
relieved from the harsher provisions of his former condition, but
remained in general under the protection and on the land of his former
lord, perhaps receiving wages for services still rendered. In the eighth
century Wihtraed of Kent enacted that even in the case of solemn
manumission at the altar, the inheritance, the wergyld and the mund of
the family should remain to the lord, whether the new freedman continued
to reside within the Mark or not[414]. The mode of provision for the
emancipated serf must, in a majority of cases, have led to this result.
The lord endowed him out of his own land, either with a full possession,
secured by charter, or a mere temporary, conditional loan, _lǽn_: the
man therefore remained upon the lord’s estate, and in his _borh_ or
surety, though no longer liable to servile disabilities[415].
-----
Footnote 413:
For example Wilfrið's, at Selsey; see above, p. 211.
Footnote 414:
Leg. Wihtr. § 8.
Footnote 415:
Wulfwaru in her will directs her legatees to feed twenty freolsmen or
freedmen. Cod. Dipl. No. 694. Ketel commands that all the men whom he
has freed shall have all that is _under their hand_,—probably all they
had received as stock, or had been able to gain by their industry.
Cod. Dipl. No. 1340.
-----
The full ceremonies used in the solemn act of emancipation by the
Anglosaxons are not known to us; but there is reason to suppose that
they resembled those of other Teutonic nations. Generally these may be
divided into civil and ecclesiastical; the former receiving their
sanction from the authority of the people or the prince, the latter from
the church and its peculiar influences. “He who would emancipate his
serf shall deliver him to the sheriff, by the right hand, in full
county, shall proclaim him free from all yoke of servitude by
manumission, shall show him open roads and doors, and shall deliver unto
him the arms of a free man, namely the lance and sword: thenceforth the
man is free[416].” Such is the law of William the Conqueror, and it is
repeated with little variation by Henry the First[417], except that
there is no limitation to the sheriff and the county. But this was also
one form of manumission among the Langobards. The person who was to be
made _Fulfreal_ was delivered over successively into the hands of four
different persons: the last of these brought him before witnesses to a
spot where four roads met, and his choice was given him of these roads.
He was then free, and _ámund_, that is removed from under the protection
of his former master[418]. But it appears that the master, even though
he gave the free roads, might reserve the mund of his freedman, by which
he retained the right of inheriting from him, if he died childless[419];
and this recalls to us the provision already cited from the Kentish
law[420]. The history of Ramsey informs us that Æðelstán, the son of
Manni, adopted this form in a very extensive emancipation of his
serfs[421], and we may therefore suppose it to have been a mode usual
among the Saxons. Among the Franks, the fullest and completest act of
emancipation was that which took place before the king, or in a popular
court; the freedman, from the ceremonies adopted on the occasion, was
called _Denarialis_, or _Denariatus_, “qui denarium ante regem
iactavit.” He became capable of a wergyld, of contracting marriage with
a free woman, and in general obtained all the rights of a free citizen.
But he still remained in some degree under the mund of the king, who
received his wergyld, and had certain rights over his inheritance[422].
I do not know whether this has any connexion with a law of Henry the
First, which provides that in _any case_ of manumission, the serf shall
give thirty pence to the lord, as a witness, namely the price of his
skin, for a testimony that he is thenceforth himself its master[423].
There was a form of manumission among the Franks by charter[424], which
however did not confer all the privileges of the _denarialis_. The
holder of such a charter was thence called Chartularius: I will not
assert that such a system prevailed here, although it is possible that
some of the many charters of emancipation, printed in the Codex
Diplomaticus, may be of this nature. Their general character however is
that of a record of bargain and sale between different parties: it may
be indeed presumed that emancipation would follow, but there is no
positive statement that it did. The following class of cases perhaps
approaches nearest to such a _charta ingenuitatis_: “By this book of the
Gospels it appeareth that Ælfwig the Red hath bought himself out, from
Abbat Ælfsige and all the convent, with one pound. Whereof is witness
all the brotherhood at Bath. Christ blind him who turneth away this
record[425]!” But this is only a memorandum in a copy of the Gospels, no
charter of manumission; and I presume that the sheriff would have
required some much more definite and legal act, before he looked upon
Ælfwig the Red as a freeman. Probably he was duly made free at the altar
of the abbey church or at the door[426]. Of this subsequent process we
have a good example in the book of St. Petroc.
-----
Footnote 416:
Leg. Will. Conq. iii. § 15.
Footnote 417:
“Qui servum suum liberat, in aecclesia, vel mercato, vel comitatu, vel
hundreto, coram testibus et palam faciat, et liberas ei vias et portas
conscribat apertas, et lanceam et gladium, vel quae liberorum arma
sunt, in manibus ei ponat.” Leg. Hen. I. lxxviii. § 1. Hence the
manumitted serf is called freo ⁊ færewyrð, _free and fareworthy_, that
is, having the right to go whither he chooses.
Footnote 418:
Leg. Rotharis, Langob, Reg. cap. 225.
Footnote 419:
Leg. Roth. Langob. Reg. cap. 226.
Footnote 420:
Leg. Wiht. § 8.
Footnote 421:
“Per omnes terras suas, de triginta hominibus numeratis, tredecim
manumisit, quemadmodum eum sors docuit, _ut in quadrivio positi
pergerent quocunque voluissent_.” Hist. Ram. 29.
Footnote 422:
See Eichhorn, i. 333. Such a person resembles the Langobardic freedman
_per impans_. Ibid. p. 331. I imagine the principle upon which the
wergyld went to the king, to be this: the freedman either never had a
free mǽgð, or they had forfeited the mǽgsceaft by suffering him to be
reduced to serfage. Compare Leg. Eádw. § 9.
Footnote 423:
Leg. Hen. I. lxxviii. § 3. That is, that he is no longer liable to
corporal punishment like a serf.
Footnote 424:
“Qui vero per chartam ingenuitatis dimissi sunt liberi,” etc. Capit.
Bajuvar. an. 788. cap. 7 (Georgisch. p. 548). Eichhorn, i. 332.
Footnote 425:
Cod. Dipl. 1350.
Footnote 426:
Every lawyer knows the value of the _ad ostium aecclesiae_, at any
rate in matters of dower. It implies perfect publicity.
-----
“This book beareth witness that Ælfsige bought a woman called Ongyneðel,
and her son Gyðiccæl, of Ðurcil for half a pound, at the church-door in
Bodmin: and he gave to Ælfsige the portreeve and Maccos the hundred-man,
fourpence as toll. Then came Ælfsige who bought these persons, and took
them, and freed them, ever sacless, on Petroc’s altar, in the witness of
these _good men_; that is, Isaac the priest[427],” etc.
Of all forms of emancipation I imagine this to have been the most
frequent, partly because of its convenience, partly because the motives
for emancipation were generally of a religious cast, and the sanctions
of religion were solemn and awful. Almost all the records which we
possess on this subject are taken from the margins of Gospels or other
books belonging to religious houses, and the few references in the laws
imply emancipation at the altar. Among the Franks this form, in which
the freedman was called Tabularius, conveyed only imperfect freedom: the
utmost it could do was to confer the privileges of a Roman provincial,
to which class the clergy were reckoned: but the _tabularius_ even so
was not fully free; he still remained in the mund of the church.
Wihtræd’s law, so often cited, shows clearly that this was not the case
in England; nor could it be, seeing that the clergy among us were
national, and the Frankish system of _personal_ rights did not prevail.
I am therefore disposed to think that gradually emancipation at the
altar was taken to convey all the privileges of manumission, and that it
was the mode generally, though not exclusively, in use. On this point,
the want of documents prevents our attaining certainty. The method was
probably this: the man was formally offered up before the high altar,
and there declared free in the presence of the officiating clergy and
the congregation. A memorandum was then made in some religious book
belonging to the church, and the names of the witnesses were recorded.
Whether a separate certificate was prepared does not appear.
-----
Footnote 427:
Cod. Dipl. 981. § 28.
-----
The full extent of the rights obtained by the freedman, especially in
respect of inheritance, is not to be gathered from any existing
Anglosaxon document. It is probable that these were limited, as among
the Langobards and Franks: his offspring however were free, and his
marriage with a free woman, equal: his other rights, duties and
privileges, in short his general condition, were in all probability
determined by certain arrangements between himself and his lord previous
to the act of manumission. In such a case neither party would find much
difficulty in settling the terms of a bargain.
-----------------------
NOTE.
The following pedigrees illustrate the care with which the relations
of the gebúr, and other dependent cultivators on an estate were
recorded. It is probable, nay even certain, that such records were
preserved in all lordships: they were the original court-rolls, by
copy of which the unfree tenants, perhaps also the poor freemen, held,
who were thus the ancient copyholders. The amount of the holdings was
undoubtedly settled by the custom of the county or the manor; and it
is probable that one measure prevailed for all tenants of similar
grades. A record of descents was necessary to regulate the claims of a
lord to the families of his _coloni_, and some extensive system of
registration very probably prevailed: it would be impossible without
it to secure the due operation of the law of _teám_.
“Dudda was a gebúr at Hǽðfeld, and he had three daughters, one was
named Deórwyn, the second Deórswýð, the third Golde. And Wulfláf at
Hǽðfeld hath Deórwyn to wife, Ælfstán at Tæccingawyrð hath Deórswýð to
wife, and Ealhstán, Ælfstán’s brother, hath Golde to wife. There was a
man named Hwíta, the beemaster at Hǽðfeld, and he had a daughter Táte,
the mother of Wulfsige, the bowman; and Wulfsige’s sister Lulle hath
Héhstán to wife, at Wealden. Wifús and Dunne, and Seoloce are inborn
to Hǽðfeld. Duding, the son of Wifús, is settled at Wealden; and
Ceólmund the son of Dunne, also sits at Wealden, and Æðelheáh the son
of Seoloce, also sits at Wealden: and Táte, Cénwold’s sister, Mæg has
to wife at Welgun; and Eádhelm, the son of Hereðrýð, hath Táte’s
daughter to wife. Wærláf, Wærstán’s father, was a right serf at
Hǽðfeld, he held the grey swine[428].”
“᛭ A man named Bráda was a gebúr at Hǽðfeld, and Hwíte was the name of
Brâda’s wife; she was a gebúr’s daughter at Hǽðfeld. Hwíte was
Wærstán’s Wǽðrýð's and Wynburh’s third mother[429]. And Wærstán sits
at Wádtún, and hath Wine’s sister to wife, and Wine hath Wærðrýð to
wife. And Dunne sat at Wádtún, she was inborn to Hǽðfeld: and Deórwyn
her daughter hath Cynewald to wife at Munden: and Deórnáð her brother
is with Cynewald. And Dudde, Wifús’s daughter sits at Wilmundesleá.
Cynhelm, Cénwald’s father, was a gebúr at Hǽðfeld, and Manna,
Cénwald’s son, sits at Wádtún under Eádwald.”
“᛭ Buhe, Dryhtláfs mother-in-law, was removed from Hǽðfeld into
Eslingaden: and Æðelwyn, Eádugu and Æðelgyð were three sisters; and
Tilwine and Dudda, these were all Buge’s children; and Ealhstán
Tilwine’s son, and Wulfsige Eádugu’s son, and Ceólhelm Æðelgyð's son,
and Ceólstán and Manwine. This kin came from [Hǽð]feld; Deórwulf,
Cyneburh’s son, and his two sisters; and Cyneríc at Clæfring is their
uncle. These men are the _magas_ of Táta, the gebúr at Hǽðfeld.” Cod.
Dipl. No. 1353.
It is probable that all these places are in Hertfordshire, or in
Essex. In both counties we find Hatfield and Walden: there is no
Clavering in Hertfordshire, that I know of. On the other hand I am not
aware of any Munden or Watton in Essex.
In 880 Æðelred, duke of Mercia, gave various estates to the bishopric
of Worcester. He also gave six persons with their offspring, who had
previously been _adscripti glebæ_ at the royal vill of Bensington.
“These are the names of the persons who are written from Bensington to
Readanora, to the bishopric of Worcester, with their offspring, and
the progeny that may come of them to all eternity: Alhmund, Tídwulf,
Tídleáh, Lull and Eádwulf[430].”
In 902, Beornwulf _homed_ (gehámette), that is attached, to his manor
of Eblesburne, a number of persons, of both sexes. Lufe and her three
children, Luha and his six children are named[431].
In the time of Eádgár we have the record of several persons
establishing by their oaths that their parents had not been serfs or
_coloni_ of the king[432]. An Appendix to this chapter contains
numerous examples of manumissions, of various periods.
-----
Footnote 428:
He was the ǽhteswán or _porcarius dominicalis_. I cannot explain the
distinction intended by ða grǽgan swín, literally the _grey_ swine.
Footnote 429:
Perhaps great-grandmother.
Footnote 430:
Cod. Dipl. No. 311.
Footnote 431:
Ibid. No. 1079.
Footnote 432:
Ibid. No. 981.
-----