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warranty of the king's courts in defence of his title to his land; this was a concession granted by the first of the Angevin kings. But the state was unwilling to interfere between the lord and his unfree tenants. Indeed at every turn the villein was reminded of the lord's claims upon his land. He was not allowed to fell timber, and whoever cut down oak or ash on his land, unless it were perhaps to repair his house or plough or cart, was punished for his offence in the lord's court1; he might not convert his garden into arable 2, and he was subjected to other restrictions of a similar kind. At the same time he was held responsible for maintaining his land in good condition, and at Abbots Ripton, for example, the tenants were expelled for not repairing their holdings. This was during the Wars of the Roses, when "the Northern men lay there so long before the field was foughten that they impoverished the country", and left the inhabitants too poor to carry out their obligations 3. But from an economic standpoint the legal aspect of villein tenure as a precarious tenure was hardly perhaps of determining importance. If the villein was denied the protection of the national courts, he received that of the manorial courts. If he suffered from the encroachments of his neighbour, he could seek a remedy in his lord's court, and the custom of the manor to which he appealed was no arbitrary or fanciful procedure, but was characterized by all the formality and strictness distinctive of law proper. No doubt if the lord in person dispossessed the tenant no redress was available, for the lord was himself the president of the court and judged the validity of his own actions; and cases of the removal of tenants are not unknown. But in this respect the villein fared no worse than his own lord, if the latter were deprived of his estates

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1 The Court Baron (Seld. Soc. Pub.), 102. Cf. the manor rolls of Taynton (Oxon): And Robert Tayllor, since the last court, has cut down an elm, to wit a timber tree worth 6d. without licence of any of the king's officers; but the said Robert used the same tree for the repair of his tenement; therefore let him have a talk thereupon with the king's officer before the next court": Hone, Manor and Manorial Records, 177. 2 Vinogradoff, Villainage, 166.

3 Select Cases in the Court of Requests (Seld. Soc. Pub.), 81.

♦ Vinogradoff, Villainage, 165; Vict. County Hist. Lincolnshire, ii. 300.

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by the king. In actual fact, however, the tenant as a rule had little reason to apprehend the loss of his farm. The lord was at least quite as anxious to retain his tenants on the manor for the cultivation of the demesne, as the tenants could be to retain their homesteads. The villeins were the basis of feudal society, and by their work and rents the higher ranks of the social structure were maintained. The value of a manorial estate depended in fact upon the number of tenants which it contained, and the extent of their services and contributions, rather than upon the fertility of the soil.

certain

services.

A second feature of servile tenure upon which mediaeval (ii.) Unlawyers laid the greatest stress was the nature of the services attached to the tenure. The services exacted from the tenant in villeinage were uncertain, and not fixed and defined beforehand. In the famous words of Bracton 1, he "ought not to know in the evening what he will have to do on the morrow" (nec scire debeat sero quid facere debeat in crastino). These words can be illustrated from the rolls of an Essex manor, where one year the services of the villeins were all expended on threshing and work at the grange, while another year two-thirds went in hedging, ditching and hurdle-making. The legal test of the character of the holding was thus the certainty or uncertainty of the duties by which it was held. If the tenant were liable to every kind of work which the lord might see fit to appoint, then his tenure was unfree; otherwise the tenure was free. Here, again, if we attend to the facts of economic reality the definitions of common law appear unsatisfactory. No doubt from the legal standpoint everything connected with villein tenure was determined at the will of the lord. But manorial practice had hardened into custom, and custom had generally an authority scarcely less binding than law. Custom was the life of the manor, and very little was left to arbitrary caprice. The extenta or manorial surveys afford evidence by their minute details of the certainty of the services for which the tenant was responsible. He knew the days when he must plough, reap and thresh, and the 1 Bracton, De Legibus, f. 208 b.

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2 K. G. Feiling, An Essex Manor in the Fourteenth Century", in English Hist. Review, xxvi. 335.

(iii.) Weekwork.

days when he must carry and perform all the other duties of his office. A departure from the customary arrangements did not pass unchallenged. At Weston, a manor belonging to Ramsey Abbey, a bailiff endeavoured to defer the ploughing, but the villeins claimed that on Friday only could ploughing justly be exacted from them 1. It would be erroneous, therefore, to regard the tenant in villeinage as a slave whose services were at the complete command of the lord. On the contrary, his services were regulated and fixed, and certain days in the week remained at his free disposal for his private purposes 2. Still the legal definition was not without bearing, for where work is done day by day and week by week some uncertainty must exist; the villein could not always know with certainty all the details of his work on the morrow.

The third characteristic of base tenure furnishes from an economic standpoint the real contrast between free and unfree tenure. The latter was held on condition of labour, and the former by the payment of rent. It is true that agricultural labour did not make a tenure servile, for freehold tenants had to assist in the cultivation of the demesne, especially at harvest-time. But the essential feature of a villein holding was the obligation to a considerable amount of labour-in other words, to the performance of week-work. Tenants in villeinage were accordingly tenants who held their plots on condition of labour service on the lord's farm. This is the economic test of the nature of the holding which finds no place in the legal exposition of villeinage, but which is constantly applied in manorial documents. Thus the survey of Glastonbury Abbey inquires whether " any land which ought to perform work has been turned into free land" 4, that is, land paying rent. Of course even free

1 Neilson, Ramsey Manors, 29.

2 Vinogradoff, Villainage, 172 seq., 212, 297-300; Pollock and Maitland, History of English Law, i. 362.

3 Vinogradoff, "Agricultural Services", in Economic Journal, x. 309 seq. Apparently in none of the cases given in Bracton's Notebook or in the Plac. Abbrev. is the question of villeinage tried on the issue whether labour services are certain or uncertain. Pollock and Maitland, however, support Bracton's view: History of English Law, i. 370.

• Vinogradoff, Villainage, 168 (n. 1).

tenants in addition to their rent owed boon-works, and on the other hand unfree tenants paid dues in money and kind, but none the less the character of the holding depended upon the character of the obligations with which it was burdened. This test on the whole corresponds with the legal test of uncertainty, for as already noticed the exaction of regular week-work afforded scope for the intervention of the lord, while the payment of rent precluded in the main the possibility of such uncertainty.

of villeins.

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The question as to the personal status of tenants in The status villeinage, though primarily of constitutional interest, is yet of considerable economic importance. In some cases the tenant was a freeman with an independent status and rights pleadable at common law. But as a rule he was a nativus, a villein by birth and of unfree status. The term villeinage thus covers two distinct conceptions: it was not only a tenure, it was also a status, and a holding in villeinage did not make a man a villein 1. The villein by status was personally unfree and the dependent of a lord. The tenant in villeinage could in status be free or unfree, but his tenure was precarious, and his services predial and uncertain. From the personal unfreedom of the villein proceeded the servile incidents which were the distinguishing marks of villeinage. The villein was annexed to the soil, and the fugitive could be reclaimed and punished unless he paid a fine to live away from the manor 2. He could be tallaged "high and low" at the will of the lord 3, and without the lord's licence he could sell neither ox nor horse 4 in order not to diminish the stock on the estate, nor have millstones in his house" to the great damage of the lord as regards the suit to his mill" 5. His son could not be set to letters (in literam ponendis), or educated at school, or apprenticed to

1 Year Books, 20 & 21 Edw. I. p. 40; Plac. Abbrev. 243 a. 2 Select Pleas in Manorial Courts (Seld. Soc. Pub.), i. 16. might be very heavy: English Hist. Review, xv. 778.

These fines

3 Patent Rolls, 1345-1348, p. 448; Plac. Abbrev. 125 b, 221 b (“possit talliare de alto et basso pro voluntate sua "). But elsewhere occur the words, "talliavit ronabiliter": ibid. 29 a.

• Ibid. 85 a, 161 a. But in the fourteenth century the villein could apparently sell horse or cow: Year Books, 18 & 19 Edw. III. p. 502. Select Pleas in Manorial Courts, i. 47.

• Patent Rolls, 1345-1348, P. 448.

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Villeinage and slavery 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 son 3, 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.

The condition of the villein in public and private law, and 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).

4 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.

5 Bracton and Azo (Seld. Soc. Pub.), 44.

6 Bracton, f. 4 b.

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