contrasted. a free handicraft 1, except the lord gave his consent. He could not even enter the Church, for "according to the institutes of the Church militant and of secular princes, such persons are not allowed to do so without the consent of their lords" 2. His daughter, and sometimes also his son3, could not marry without the payment of a fine known as merchet (merchetum carnis et sanguinis), or "service of bloodransom ", and regarded as the most degrading characteristic and assured test of servile status 4. These restraints on the personal liberty of the villein were the direct consequence of his personal subjection to the lord. Villeinage The condition of the villein in public and private law, and and slavery the extent to which the element of servitude entered into his status, can best be illustrated by comparing his position with that of the ancient slave. The central notion in our conception of a slave is that of a person absolutely rightless, the chattel of his owner, devoid of all legal status or possessions of his own. The legal theory of the Middle Ages assimilated the condition of the serf to that of the slave, and the lawyers identified villeinage with Roman slavery. Bracton, copying the language of Azo, the great doctor of Bologna 5, pronounced all men to belong to one of two categories, freemen or slaves (aut liberi aut servi), and this line of demarcation or "Roman dilemma" condemned the villein to slavery. Against his lord the villein could assert few or no rights, although the law afforded protection in life and limb. "The power of lords over villeins", Bracton observes, "is restricted by civil right, so that life 1 A. Clark, "Serfdom on an Essex Manor ", in English Hist. Review, xx. 482-" ponit se in officio carpentarii sine licencia "; " posuit filium suum ad scholas sine licencia ". J. Harland, Mamecestre (1861), ii. 280-fine for apprenticing a son to a free craft (artem). 2 These words occur in a licence granted by Edward I. to a bondman to enter the Church: Patent Rolls, 1301-1307, p. 118. 3 • Examples of licence for the marrying of sons are (i.) Patent Rolls, 1345– 1348, p. 163; (ii.) Rot. Hund. ii. 845 a, 845 b; (iii.) Custumals of Battle Abbey, 67 (in certain cases). Compare Select Pleas in Manorial Courts, i. 94, where one was presented for refusal to serve on a jury, alleging he was a freeman, "whereas in truth his sisters made fine for leave to marry". The phrase service of blood-ransom ' is from the Mirror of Justices, 81. Bracton and Azo (Seld. Soc. Pub.), 44. Bracton, f. 4 b. and limb are under the protection of the king"1. As to proprietary rights the evidence of the Dialogus de Scaccario 2 is clear: "The lords are owners of the chattels and bodies of their ascriptitii; they may transfer them where they please and sell or otherwise alienate them"; and this evidence is borne out by the writings of Glanville and Bracton. "All his belongings", says Glanville 3, "are in his lord's power". "Whatever is rightfully acquired by the serf", Bracton agrees, "is acquired for his lord". The villeins are thus represented as outside the scope of common law, and the lords enjoyed in legal theory almost unlimited rights. The actual facts of villeinage, however, conflict with the legal conception, and the wide divergence reveals important points of difference between the mediaeval serf and the ancient slave. (1) Even in his relation to the lord the serf's position has been well described as one of unprotectedness rather than rightlessness 5. He was allowed to retain his own property and dispose of it by will, except his holding in villeinage, and his wainage was even secured to him by law. The fact that as a rule the lord's exactions were customary, and not arbitrary, implied a recognition that the villein had a right to his belongings. A striking proof that the villein was not without recognized rights comes to us from the court rolls of the manor of Brightwaltham at the end of the thirteenth century. "To this court came the whole commonalty of the villeins of Brightwaltham, and of its mere and spontaneous will surrendered to the lord all the right and claim that the said villeins have heretofore 2 Dialogus, I. xi., II. xiv. 1 Bracton, f. 6, f. 421 b. 3 Glanville, Tractatus de Legibus (ed. 1780), v. c. 5 (p. 74). For an example showing the defenceless condition of the villein if the lord chose to exercise his power, see Vict. County Hist. Dorsetshire, ii. 231. Bracton, f. 6. Pollock and Maitland, History of English Law, i. 417. " • The passage in Bracton (f. 6) confining legal protection of the wainage to tenants of Ancient Demesne is a gloss: Vinogradoff, The Text of Bracton", in Law Quarterly Review, i. 197. The term wainage is usually supposed to apply only to implements of husbandry, but Professor Tait has argued in favour of a more extended meaning, which would include not only the plough-team but seed-corn, growing crops, and anything in fact needed for tillage. This broader interpretation would imply that the law protected the villein from economic ruin: J. Tait, "Studies in Magna Carta ", in English Hist. Review, xxvii. 724. man. claimed by reason of common in the lord's wood called Hemele . . . and in return for this surrender the lord of his special grace has remised to them the common that he had in the field called Eastfield . . . to the intent that the lord shall have no beasts pasturing in the said common" 1. The villeins are here represented in the light of a communitas or organized community which, while nominally unfree, was able to hold property and enter into a contract with the lord on equal footing. At another time (1311) a lord's charter gave over to the Church fourteen and a half acres "of the land of bondmen with their free assent" (spontanea voluntate ipsorum) 2. (2) But the fundamental difference between villeinage and slavery consists in the fact that the villein was free against every one but his lord. Criminal law recognized no distinction between the serf and the free "Serfs have a personal right of action in court against all persons for injuries done to themselves" 3. The serf could bring a criminal action against the freeman, and in his turn could be prosecuted by any other serf or freeman. In civil law he could sue in all cases other than those affecting his villein tenement, and if deprived of his wainage he could sue even his lord 4. Thus at most the serfdom of the villein was merely relative', and its unusual character marks it as a 'juristic curiosity'. Again the position of the villein in the state does not accord with the notion that he was a mere slave. He could claim no immunity from the obligations incumbent upon men of free status, but shared in the burdens of local government. As member of a jury he presented offenders, he possessed arms, he paid taxes. All this is evidence of a status very different from that of the slave, and it was a single step from thence to his asserting as the natural corollary of his duties a demand for the exercise of the rights of freemen. (3) Another essential difference between the serf and the Roman slave was that in point of fact, though not apparently of 1 Select Pleas in Manorial Courts, i. 172. 2 Charter Rolls, iii. 174. 3 Bracton, f. 155 b. 4 Vinogradoff, Villainage, 74. On the question whether the lord could be sued in his own court, see G. B. Adams, The Origin of the English Constitution (1912), 94-96. law, the servitude of the villein was predial. The serf cultivated the demesne fields and the services due from him were agricultural; rural labour was indeed the prevailing and dominant characteristic of villeinage. Moreover, he occupied a separate house and farm, the produce of which he retained for the maintenance of his family. Lastly he was adscriptus glebae, bound to the soil, from which as a rule he was never detached. This close, almost inseparable, connexion with the land constituted the vital and essential principle of all that we mean by villeinage. The mediaeval serf was a cultivator of the soil in a state of dependence upon the lord of the soil. The view formerly held that there were two classes of villeins, the villein regardant who could not be removed from the manor, and the villein in gross who could be transferred at will, is erroneous1. In all these respects, then, there is a wide divergence from the condition of the slave, a chattel, owning neither land nor property of any kind, and in complete subjection to his master, by whom he is maintained and housed, and who can be put indifferently to rural, industrial or house work and be sold or otherwise disposed of at his owner's pleasure. cottars. The cottage tenants, who comprised about 32 per cent. The of the population and were more or less evenly dispersed throughout the country, occupied a lower place in the manorial hierarchy. In the Domesday Survey they are designated in some localities as cottars, and in others as bordars, and apparently these names were interchangeable, though this is by no means certain. The term bordar, a word of Norman-French origin, seems peculiar to Domesday terminology, and failed to survive in common usage. The cottagers were recruited from the younger sons of villeins, whom the principle of single succession, imposed in the interests of the lord and to ensure the efficiency of the ploughing, precluded from a share in the inheritance. Another element 2 was that of slaves, whom the lord of the manor had settled on the soil with the improved status of manorial tenants. The cottars, like the villeins, were tenants 1 Vinogradoff, Villainage, 48-56. Comparison with the villeins. Their economic import ance. in villeinage, and the formal divisions of the lawyers embraced both groups in a single class, creating a fictitious unity based upon their common subjection to the lord. Indeed the term villein was often extended to the cottars, and the practice reflected the similarity between them. The dividing line was not a legal one. The legal features of villeinage its precarious tenure, its compulsion to predial service, its dependent status-were paralleled in the condition of the cottager. But the legal identity concealed divisions of considerable economic importance. There was a wide difference between the villeins who formed the central and representative group among the villagers, and the cottagers whose material condition was so inferior. The line of demarcation between the two strata of manorial society was thus essentially an economic one. The villein, with his virgate of arable land and appurtenant rights to meadow and waste, presented all the appearance of a substantial farmer by the side of the poor and struggling cottager. In comparing the cottars with the villeins two main differences emerge. In the first place, the allotments of the former class were considerably smaller than those of the villein. Their usual holding contained five acres, though variations from this number are common, and as many as ten and as few as two or one might fall to their lot 1. In the second place, proportioned to the diminished size of the tenement, their obligations were correspondingly less. They worked for the lord only one day in the week, usually on a Monday, and the term 'Monday men' (lundinarii) 2 was accordingly often applied to them. The principal service due from the villein, ploughing on the lord's demesne, was not exacted from the cottage tenants, for as a rule they were without oxen of their own, and so were excluded from taking part in the common ploughing. The social inferiority of the cottars to the other villagers is apt to conceal the importance of their situation in the manorial economy. It is one of the features of rural life that the demand for agricultural labour is never uniform throughout the year, but varies with the seasons. The 1 Seebohm, Village Community, 96. * Neilson, Ramsey Manors, 49. |