426

INFERIOR TENURES AND VILLENAGE.

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 socage together, made up knight's service. Fealty, with or without homage, and any other special service below petty serjeanty, constituted the important class of socaged 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. The 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.

The obligations of a feudal vassal were service in council, in the court of law, and in the field. He was bound to guard his lord's castle during a certain number of days. 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 four 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

OBLIGATIONS OF FEUDAL SERVICE.

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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 acknowledgement 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 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-inchief, 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.

The vassal 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. 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 over-legality, 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 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. Their condition in practice, of course, varied with the times, the district, and the character of their

428

CAUSES OF EMANCIPATION.

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 landowner. 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 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

1 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, and the enactment in Magna Charta no doubt rested upon old custom, which had been arbitrarily infringed. In the various Latin poems against the men of Norfolk, which Mr. Wright has printed, mention is made of a landowner who oppressed his serfs by hard labour, and took their cattle and money. Yet the villeins clubbed together and bought their freedom of him. It is hardly possible, therefore, that he can have had the right to take their money from them, or he would have done so, when it was tendered in payment.-Early Mysteries, p. 94.

2 Institutes of Justinian, lib. i., tit. iii., s. 2.-Bracton, fol. 5. No one who compares the two passages can doubt that Bracton is copying the Institutes.

INFLUENCES OF FEUDALISM ON SOCIETY.

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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 tenantry, who were thus thrown upon the country, houseless and landless, but free.

The universality with which the principles of feudalism were applied can scarcely be exaggerated. In the ordinary life of society, the knight was invested with his order as with a fief, and the woman bound to her husband by a promise resembling the oath of homage. In religion, the great question at issue between church and state was conceived under feudal aspects, and men debated whether pope and emperor were alike supreme in their own demesne, but each owing service to the other for some fief held of him; or one subject to the other, or both independent powers, holding only of Christ, their suzerain.1 In law, the theory that a monarchy was a fief, and the administration of justice one of its appurtenances, has stamped itself upon English legislation. In itself, it was no small change that the monarch should be called king of England instead of king of the Angles; it substituted the notion of proprietorship for that of headship of a clan. That peculiar feature of these ages, which led them to express their abstract ideas in rigid symbols, to materialize and petrify what would otherwise have been fleeting and vague, contributed to invest legal fictions with an intense reality. Hence it was that the English towns, as soon as they became free and corporate, were treated as barons. Each of them was an organic life, so to speak, with many members, but only one will, and with the responsibilities of an individual. The governing powers of a corporation, its mayor, aldermen, and common council, were the lord of the citizens. Naturally, therefore, they were held re

1 See, e. g., Ockham, Disp. Cler. et Mil. Goldasti. Monarch., vol. i., pp.13-18, and Dante, De Monarchiâ, lib. iii.

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ORIGIN OF CHIVALRY.

sponsible for the actions of any one of their body. The cost of a criminal's offences was assessed on his fellow-citizens; and the debt owed by a single man to the exchequer might be recovered from his township; the act of a deputation was binding on those from whom it came. In these few facts lies the whole representative theory. Once grant that a city can be conceived as a person, and the great democratic problem of expressing every individual will is solved.

It

As feudalism was the conservative element which connected mediæval society with order and property, but threatened to turn it into a hierarchy of castes, so chivalry may be called the element of progress. The one took its stand on what was real; the other devoted itself to ideas. Antiquarians may trace the name chivalry to the fiefs which were bound to supply horsemen, but the institution itself is derived from deeper wants of human nature than the mere need of a militia. expresses the union of the citizen with the Christian. During many centuries the words of Christ, that his kingdom was not of this world, were interpreted as a command to desert secular society. The silent heroism of men, who fasted and prayed, in fearless unconcern that the world was crashing around them, may command the admiration even of those who deplore it as unintelligent. When Europe was reconstructed, its nobility in every country came in as barbarians and pagans, and were converted by the subject-people, or by their more civilized neighbours. The comrades of Rollo and Guthrum were willing to be baptized, if it were with the sword at their side. Hence the question arose whether war might not be reconciled with religion. The conscience of men answered that it was right to fight for their homes and faith. But the duty of self-defence, though it might kindle enthusiasm, could not create chivalry. Mere brotherhood in arms was not knighthood; it did not distinguish the civilized man from the berserkar. The crusades idealized war. Men who left home and hope behind them, to fight for a shattered cross and a blackened

1 Madox's Firma Burgi, chap. 2, 7, 9.