INFERIOR TENURES AND VILLENAGE.

591

The

ance of some personal service to the king, to be his chamberlain or champion. Tenure by petty serjeanty was the yearly payment of some implement of war to the king. These were the tenures of tenants-in-chief; below them, scutage and socage tenures. The term scutage is now commonly used of the tax for which service of the shield was commuted. Originally it meant the obligation to serve in arms forty days in the year, and was attached to every knight's fee. Fealty, with or without homage, and scutage together, made up knight's service. Fealty, with or without homage, and any other special service below petty serjeanty, constituted the important class of socage tenures. The obligation to perform all services indiscriminately, was villenage. In other words, the distinction between gentry and mere freedom lay in the service of arms; between freedom and servitude, in fixed, instead of variable, dues. distinctions of socage tenure are numerous, as the word came to cover the service of the plough, rent for houses paid immediately to the crown (burgage tenure), or rent by various tenures, even one so debasing as doing the hangman's duty. Sometimes two or three conditions. were united; it did not matter, so long as they were not variable. Beneath these middle classes came the large class of villeins. A villein might be regardant, attached to the soil, or in gross, attached to the person of his lord. A freeman might hold land in villenage, and be bound to do villein's service upon it. One of the things that most complicates the consideration of feudal England, is the way in which a personality attached to corporations and lands. Every acre of soil, every institution, was animate, so to speak, with duties and privileges, which had attached to it from time immemorial, and could not be lost.

592

OBLIGATIONS OF FEUDAL SERVICE.

The obligations of a feudal vassal were service in council, in the court of law, and in the field. His service in the field was limited by a right, constantly dis regarded, not to serve out of his own country, and except, perhaps, on a crusade, not to serve more than forty days. He was bound to sustain his lord in selfdefence, and to guard his castle during a certain number of days. If his lord ventured on private war the opinion of the best legists was that the vassal could not be distrained to follow him into the field, but the vassal, if brought to justice, might probably plead his lord's orders in excuse. He was forced to contribute, to redeem his lord from captivity, when his lord's eldest daughter was married, or when the eldest son became knight. These reliefs, as they were called, were at first arbitrary and oppressive. Gradually they were fixed, by custom, at the rate of five pounds for the knight's fee of land, or about five hides; this was "the reasonable relief" that is mentioned in Magna Charta. The heriot, or royalty on the goods of a deceased vassal, seems gradually to have been confounded by the Normans with a relief which the heir was bound to pay out of his own purse on succeeding to an estate. The heriot conveyed the acknowledgment of former vassalage; and, from analogy, one was claimed by the Church at the death of every believer. The relief was rather a recognition of the lord's claim to continued service from an estate. It is important to observe that no man was bound to pay the

1 As bishop Hugh of Lincoln not only refused to perform foreign service for his lands, but was followed in his refusal by the bishop of Salisbury, the exemption must have been common, if it was not universal.

Vita S. Hugonis, pp. 249, 250. Wendover refers to the forty days' term of service as a French custom (vol. iv. p. 133).

2

Leges Hen. I., c. lxviii. s. 12.

EVILS OF OVER-LEGALITY.

593

necessary reliefs more than once to every natural heir of the estates, otherwise a frequent change of owners, by sales or forfeitures, would have been intolerably oppressive. In the case of tenants-in-chief, their heiresses were royal wards, whom the king might marry at pleasure. The abuse of this prerogative by monarchs who gave the daughters of noblemen to unworthy favourites was a grave grievance, of which the barons constantly complained, but which was never effectually redressed.

2

The vassal could not transmit his inheritance to a leper. He lost life and land if he fled from his lord in battle through cowardice, and even his freehold escheated to the crown. Generally he forfeited his fief if he did not perform its duties, or if he made any attempt on the person or honour of his lord and his family. But these obligations were reciprocal. The lord was not even allowed to raise a stick upon his vassal. Insult, outrage, or the denial of aid or justice, entitled the vassal to withdraw his fief and declare war upon his superior, though it was at his peril in England if he violated the king's peace. In cases that did not come to this extremity, the vassal might appeal to a court of his peers, presided over, it is true, by his lord; but a further appeal lay from this to the suzerain. That injustice was often done, is probable. But the institutions of these times are not chargeable with unfairness in their spirit. The great curse of the country was its overlegality, and the belief that it could root out abuses by multiplying systems and laws.

It has been said that a freeman might owe service in villenage for lands held on that tenure. But these. cases, which Littleton speaks of as folly, were of course

1 See the case of Brien FitzCount. Dugdale's Baronage, vol. i.

p. 469.

2

Leges Hen. I., c. xiii. s. 12.

Q Q

594

CAUSES OF EMANCIPATION.

comparatively exceptional. During the twelfth century three men in five were villeins or serfs. In theory, these men were entitled to all the protection of the law; they could not be slain, mutilated, or outraged by their lord, and though generally incompetent of giving evidence in the shire-mote, they could bear witness in a case of rape even against their lord.' Their condition in practice, of course, varied with the times, the district, and the character of their owner. The worst point in their state was the right the owner had, if he chose to enforce it within a certain term, to any real property or merchandize they might acquire, though apparently not to their money, and certainly not to the necessary implements of their occupations. In other words, a peasant could neither be a trader nor a landower. It is doubtful how far this increased the difficulty for men to buy their own liberty; though they certainly did it at times.' Becoming a priest, or escaping to a town was another means of acquiring liberty; in each case, the man had transferred his service to a new lord. Owners of serfs accordingly legislated against these infringements of their rights; but their best remedy lay in making escape from their estates difficult, as the Church and cities were

1 Glanville, lib.v.c.5. Rushworth, together and bought their freedom of vol. ii. pp. 94-100.

2 Coke upon Littleton, 118, a, b. I assume that if the villein's wainage could not be seized for a fine to the crown, it was regarded as his property. (Dial. de Scac., lib. ii. c. 14.) In the various Latin poems against the men of Norfolk, which Mr. Wright has printed, (Early Mysteries, p. 94,) mention is made of a landowner who oppressed his serfs by hard labour, and took their cattle and money. Yet the villeins clubbed

him. Compare Cod. Dip., 1351. "Hereby is shown... that Ælwig the Red hath bought himself out from Abbot Elfsige... with one pound." Glanville (lib. v. c. 5) says distinctly that "all the chattels of any naif are understood to be in the lord's power in such sort, that he cannot redeem himself from villenage with his own money." A third person, however, could redeem him, and perhaps intermediaries were employed.

ORIGINALS OF ENGLISH LIBERTY.

595

interested in protecting the fugitives. The humane subtlety of English lawyers came to the aid of the oppressed class. The principle of Roman jurisprudence, that slavery is against the law of nature, was reproduced by Bracton; and Fortescue finely observes, that the liberty which has been taken from a man seeks every issue to return to him. The remarkable doctrines, that a free father made a free son, and that all cases of doubt were to be decided in favour of liberty, must have emancipated a large class in the middle ages. The first is a gross method to look back upon, though it has issued in good. Nevertheless, it is doubtful, I think, if the men who freed themselves, or who were accounted free as illegitimate, were much more numerous than those who, by their own confession in a court of record, made themselves serfs to obtain subsistence or protection. English liberty is mainly derived from two originals. The plot of ground allowed to the serf remained so long in one family that the notion of a fixed or copyhold tenure was substituted for that of arbitrary service. Or, as the employment of hired soldiers made money more valuable than a large following, and the trade in wool made pasture more profitable than arable land, the great landowners evicted their labourers, who were thus thrown upon the country, houseless and landless, but free. To be set free in this way was at first a doubtful benefit. When Witham Monastery was founded the tenants ejected to make way for the monks were offered their choice of liberty or a settlement in their old condition on the royal manors. They elected variously.

1 Institutes of Justinian, lib. i. tit. iii. s. 2. Bracton, fol. 5. No one who compares the two passages can

2

doubt that Bracton is copying the Institutes.

* Vita S. Hugonis, p. 68.