i. 132 b, the manor of Weston 'lies in' Hitchin which is in

Hertfordshire, but its _wara_ 'lies in' Bedfordshire, i.e. it pays geld, it 'defends itself' in the latter county; i. 189 b, the _wara_ of a certain hide 'lies in' Hinxton which is in Cambridgeshire, but the land belongs to the manor of Chesterford and therefore is valued in Essex. D. B. i. 178; five hides 'geld and plead' in Worcestershire, but pay their farm in Herefordshire.

[26] D. B. i. 157 b: 'Has [terras in Oxenefordscire] coniunxit terrae suae in Glowecestrescire'; i. 209 b 'foris misit de hundredo ubi se defendebat T. R. E.'; i. 50 'et misit foras comitatum et misit in Wiltesire.' See also Ellis, i. 36.

[27] See Round, Feudal England, p. 118. Mr Round seems to think that the commissioners made a circuit through the hundreds. I doubt they did more than their successors the justices in eyre were wont to do, that is, they held in the shire-town a moot which was attended by (1) the magnates of the shire who spoke for the shire, (2) a jury from every hundred, (3) a deputation of _villani_ from every township. See the Yorkshire and Lincolnshire _Clamores_ (i. 375) where we may find successive entries beginning with (_a_) _Scyra testatur_, (_b_) _Westreding testatur_, (_c_) _Testatur wapentac_. Strikingly similar entries are found on the eyre rolls. As Sir F. Pollock (Eng. Hist. Rev. xi. 213) remarks, it is misleading to speak of the Domesday 'survey'; Domesday Inquest would be better.

[28] See Round, Feudal England, p. 44.

[29] Inquis. Com. Cantab. 60.

[30] See the table in Round, Feudal England, p. 50. I had already selected this beautiful specimen before Mr Round's book appeared. He has given several others that are quite as neat.

[31] Of course we take no account of urban parishes.

[32] Eyton's laborious studies have made this plain as regards some counties widely removed from each other; still, _e.g._ in his book on Somerset, he has now and again to note that names which appear in D. B. are obsolete.

[33] Inq. Com. Cant. 60-1.

[34] D. B. i. 31.

[35] D. B. i. 41. We shall return to this matter hereafter.

[36] A good many cases will be found in Essex and Suffolk.

[37] Inq. Com. Cantab. 51, 53.

[38] Ibid. 47.

[39] Ibid. 29.

[40] Maitland, Surnames of English Villages, Archaeological Review, iv. 233.

[41] We do not mean to imply that there were not wide stretches of waste land which were regarded as being 'extra-villar,' or common to several vills.

[42] Hist. Eng. Law, i. 547.

[43] This of course would not be true of cases in which the lands of various villages were intermixed in one large tract of common field. As to these 'discrete vills,' see Hist. Eng. Law, i. 549.

[44] This name-giving cluster will usually contain the parish church and so will enjoy a certain preeminence. But we are to speak of a time when parish churches were novelties.

[45] See Meitzen, Siedelung und Agrarwesen der Germanen, especially ii. 119 ff.

[46] When the hamlets bear names with such ancient suffixes as -_ton_, -_ham_, -_by_, _-worth_, _-wick_, _-thorpe_, this of course is in favour of their antiquity. On the other hand, if they are known merely by family names such as _Styles's_, _Nokes's_, _Johnson's_ or the like, this, though not conclusive evidence of, is compatible with their modernity. Meitzen thinks that in Kent and along the southern shore the German invaders founded but few villages. The map does not convince me that this inference is correct.

[47] When more than five-and-twenty team-lands or thereabouts are ascribed to a single place, we shall generally find reason to believe that what is being described is not a single vill. See above, p. 13.

[48] Inq. Com. Cant. 51 fol. In a few cases our figures will involve a small element of conjecture.

[49] D. B. i. 248. We have tried to avoid vills in which it is certain or probable that some other tenant in chief had an estate.

[50] D. B. i. 88. We have tried to make sure that no tenant in chief save the bishop had land in any of these vills, and this we think fairly certain, except as regards Harptree and Norton. There are now two Harptrees, East and West, and four or more Nortons.

[51] We take the figures from Ellis, Introduction, ii. 417 ff.

[52] Very possibly this figure is too low. There is reason to think that some of the free men and sokemen of these counties get counted twice or thrice over because they hold land under several different lords. On the other hand Ellis (Introduction, ii. 491) would argue that the figure is too high. But the words _Alii ibi tenent_ which occur at the end of numerous entries mean, we believe, not that there are in this vill other unenumerated tillers of the soil, but that the vill is divided between several tenants in chief.

[53] D. B. i. 162 b.

[54] Ellis's figures are: England 283,242: the three counties 72,883.

[55] We take these figures from Ellis.

[56] Lay Subsidy, 25 Edw. I. (Yorkshire Archaeological Society), pp. xxxi-xxxv. Fractions of a pound are neglected.

[57] Powell, The Rising in East Anglia, 120-3. The great decrease between 1377 and 1381 in the number of persons taxed, we must not try to explain.

[58] See the serviceable maps in Seebohm, Village Community, 86. But they seem to treat Yorkshire unfairly. It has 5·5 per cent. of sokemen.

[59] This is found at the beginning of the Inquisitio Eliensis; D. B. iv. 497; Hamilton, Inquisitio, 97. See Round, Feudal England, 133 ff.

[60] We must not hastily draw the inference that every party of commissioners received the same set of instructions. Perhaps, for example, carucates, not hides, were mentioned in the instructions given to those commissioners who were to visit the carucated counties. Perhaps the non-appearance of _servi_ in Yorkshire and Lincolnshire may be due to no deeper cause.

§ 2. _The Serfs._

[The serfs in Domesday Book.]

The existence of some 25,000 serfs is recorded. In the thirteenth century _servus_ and _villanus_ are, at least among lawyers, equivalent words. The only unfree man is the 'serf-villein' and the lawyers are trying to subject him to the curious principle that he is the lord's chattel but a free man in relation to all but his lord[61]. It is far otherwise in Domesday Book. In entry after entry and county after county the _servi_ are kept well apart from the _villani_, _bordarii_, _cotarii_. Often they are mentioned in quite another context to that in which the _villani_ are enumerated. As an instance we may take a manor in Surrey[62]:--'In demesne there are 5 teams and there are 25 _villani_ and 6 _bordarii_ with 14 teams. There is one mill of 2 shillings and one fishery and one church and 4 acres of meadow, and wood for 150 pannage pigs, and 2 stone-quarries of 2 shillings and 2 nests of hawks in the wood and 10 _servi_.' Often enough the _servi_ are placed between two other sources of wealth, the church and the mill. In some counties they seem to take precedence over the _villani_; the common formula is 'In dominio sunt _a_ carucae et _b_ servi et _c_ villani et _d_ bordarii cum _e_ carucis.' But this is delusive; the formula is bringing the _servi_ into connexion with the demesne teams and separating them from the teams of the tenants. We must render it thus--'On the demesne there are _a_ teams and _b_ servi; and there are _c_ villani and _d_ bordarii with _e_ teams.' Still we seem to see a gently graduated scale of social classes, _villani_, _bordarii_, _cotarii_, _servi_, and while the jurors of one county will arrange them in one fashion, the jurors of another county may adopt a different scheme. Thus in their classification of mankind the jurors will sometimes lay great stress on the possession of plough oxen. In Hertfordshire we read:--'There are 6 teams in demesne and 41 _villani_ and 17 _bordarii_ have 20 teams ... there are 22 _cotarii_ and 12 _servi_[63].'--'The priest, 13 _villani_ and 4 _bordarii_ have 6 teams ... there are two _cotarii_ and 4 _servi_[64].'--'The priest and 24 _villani_ have 13 teams ... there are 12 _bordarii_, 16 _cotarii_ and 11 _servi_[65].' A division is in this instance made between the people who have oxen and the people who have none; _villani_ have oxen, _cotarii_ and _servi_ have none; sometimes the _bordarii_ stand above this line, sometimes below it.

[Legal position of the serf.]

Of the legal position of the _servus_ Domesday Book tells us little or nothing; but earlier and later documents oblige us to think of him as a slave, one who in the main has no legal rights. He is the _theów_ of the Anglo-Saxon dooms, the _servus_ of the ecclesiastical canons. But though we do right in calling him a slave, still we might well be mistaken were we to think of the line which divides him from other men as being as sharp as the line which a mature jurisprudence will draw between thing and person. We may well doubt whether this principle--'The slave is a thing, not a person'--can be fully understood by a grossly barbarous age. It implies the idea of a person, and in the world of sense we find not persons but men.

[Degrees of serfdom.]

Thus degrees of servility are possible. A class may stand, as it were, half-way between the class of slaves and the class of free men. The Kentish law of the seventh century as it appears in the dooms of Æthelbert[66], like many of its continental sisters, knows a class of men who perhaps are not free men and yet are not slaves; it knows the _læt_ as well as the _theów_. From what race the Kentish _læt_ has sprung, and how, when it comes to details, the law will treat him--these are obscure questions, and the latter of them can not be answered unless we apply to him what is written about the _laeti_, _liti_ and _lidi_ of the continent. He is thus far a person that he has a small wergild but possibly he is bound to the soil. Only in Æthelbert's dooms do we read of him. From later days, until Domesday Book breaks the silence, we do not obtain any definite evidence of the existence of any class of men who are not slaves but none the less are tied to the land. Of men who are bound to do heavy labour services for their lords we do hear, but we do not hear that if they run away they can be captured and brought back. As we shall see by and by, Domesday Book bears witness to the existence of a class of _buri_, _burs_, _coliberti_, who seem to be distinctly superior to the _servi_, but distinctly inferior to the villeins, bordiers and cottiers. It is by no means impossible that they, without being slaves, are in a very proper and intelligible sense unfree men, that they have civil rights which they can assert in courts of law, but that they are tied to the soil. The gulf between the seventh and the eleventh centuries is too wide to allow of our connecting them with the _læt_ of Æthelbert's laws, but still our documents are not exhaustive enough to justify us in denying that all along there has been a class (though it can hardly have been a large class) of men who could not quit their tenements and yet were no slaves. As we shall see hereafter, liberty was in certain contexts reckoned a matter of degree; even the _villanus_, even the _sochemannus_ was not for every purpose _liber homo_. When this is so, the _theów_ or _servus_ is like to appear as the unfreest of persons rather than as no person but a thing.

[Prædial element in serfage.]

In the second place, we may guess that from a remote time there has been in the condition of the _theów_ a certain element of praediality. The slaves have not been worked in gangs nor housed in barracks[67]. The _servus_ has often been a _servus casatus_, he has had a cottage or even a manse and yardland which _de facto_ he might call his own. There is here no legal limitation of his master's power. Some slave trade there has been; but on the whole it seems probable that the _theów_ has been usually treated as annexed to a tenement. The duties exacted of him from year to year have remained constant. The consequence is that a free man in return for a plot of land may well agree to do all that a _theów_ usually does and see in this no descent into slavery. Thus the slave gets a chance of acquiring what will be as a matter of fact a _peculium_. In the seventh century the church tried to turn this matter of fact into matter of law. 'Non licet homini,' says Theodore's Penitential, 'a servo tollere pecuniam, quam ipse labore suo adquesierit[68].' We have no reason for thinking that this effort was very strenuous or very successful, or that the law of the eleventh century allowed the _servus_ any proprietary rights; and yet he might often be the occupier of land and of chattels with which, so long as he did his customary services, his lord would seldom meddle.

[The serf in criminal law.]

In the third place, we may believe that for some time past police law and punitive law have been doing something to conceal, if not to obliterate, the line which separates the slave from other men. A mature jurisprudence may be able to hold fast the fundamental principle that a slave is not a person but a thing, while at the same time it both limits the master's power of abusing his human chattel and guards against those dangers which may arise from the existence of things which have wills, and sometimes bad wills, of their own. But an immature jurisprudence is incapable of this exploit. It begins to play fast and loose with its elementary notions. It begins to punish the criminous slave without being quite certain as to how far it is punishing him and how far it is punishing his master. Confusion is easy, for if the slave be punished by death or mutilation, his master will suffer, and a pecuniary mulct exacted from the slave is exacted from his master. Learned writers have come to the most opposite opinions as to the extent to which the Anglo-Saxon dooms by their distribution of penalties recognize the personality of the _theów_. But this is not all. For a long time past the law has had before it the difficult problem of dealing with crimes and delicts committed by poor and economically dependent free men, men who have no land of their own, who are here to-day and gone to-morrow, 'men from whom no right can be had.' It has been endeavouring to make the lords answerable to a certain extent for the misdeeds of their free retainers. If a slave is charged with a crime his master is bound to produce him in court. But the law requires that the lord shall in very similar fashion produce his free 'loaf eater,' his mainpast, nay, it has been endeavouring to enforce the rule that every free man who has no land of his own shall have a lord bound to produce him when he is accused. Also it has been fostering the growth of private justice. The lord's duty of producing his men, bond and free, has been becoming the duty of holding a court in which his men, free and bond, will answer for themselves. How far this process had gone in the days of the Confessor is a question to which we shall return[69].

[Serf and villein.]

For all this however, we may say with certainty that in the eleventh century the _servi_ were marked off from all other men by definite legal lines. What is more, we may say that every man who was not a _theów_ was in some definite legal sense a free man. This sharp contrast is put before us by the laws of Cnut as well as by those of his predecessors. If a freeman works on a holiday, he pays for it with his _healsfang_; if a _theówman_ does the like, he pays for it with his hide or his hide-geld[70]. Equally sharp is the same distinction in the Leges Henrici, and this too in passages which, so far as we know, are not borrowed from Anglo-Saxon documents. For many purposes 'aut servus aut liber homo' is a perfect dilemma. There is no confusion whatever between the _villani_ and the _servi_. The _villani_ are 'viles et inopes personae' but clearly enough they are _liberi homines_. So also in the Quadripartitus, the Latin translation of the ancient dooms made in Henry I.'s reign, there is no confusion about this matter; the _theówman_ becomes a _servus_, while _villanus_ is the equivalent for _ceorl_. The Norman writers still tell how according to the old law of the English the _villanus_ might become a thegn if he acquired five hides of land[71]; at times they will put before us _villani_ and _thaini_ or even _villani_ and _barones_ as an exhaustive classification of free men[72].

[The serf of the Leges.]

Let us learn what may be learnt of the _servus_ from the Leges Henrici. Every man is either a _liber homo_ or a _servus_[73]. Free men are either two-hundred-men or twelve-hundred-men; perhaps we ought to add that there is also a class of six-hundred-men[74]. A serf becomes such either by birth or by some event, such as a sale into slavery, that happens in his lifetime[75]. Servile blood is transmitted from father to child; some lords hold that it is also transmitted by mother to child[76]. If a slave is to be freed this should be done publicly, in court, or church or market, and lance and helmet or other the arms of free men should be given him, while he should give his lord thirty pence, that is the price of his skin, as a sign that he is henceforth 'worthy of his hide.' On the other hand, when a free man falls into slavery then also there should be a public ceremony. He should put his head between his lord's hands and should receive as the arms of slavery some bill-hook or the like[77]. Public ceremonies are requisite, for the state is endangered by the uncertain condition of accused criminals; the lords will assert at one moment that their men are free and at the next moment that these same men are slaves[78]. The descent of a free man into slavery is treated as no uncommon event; the slave may well have free kinsfolk[79]. But, to come to the fundamental rule, the _villanus_, the meanest of free men, is a two-hundred-man, that is to say, if he be slain the very substantial wergild of 200 Saxon shillings or £4 must be paid to his kinsfolk[80], while a man-bót of 30 shillings is paid to his lord[81]. But if a _servus_ be slain his kinsfolk receive the comparatively trifling sum of 40 pence while the lord gets the man-bót of 20 shillings[82]. That the serf's kinsfolk should receive a small sum need not surprise us. Germanic law has never found it easy to carry the principle that the slave is a chattel to extreme conclusions; but the payment seems trifling and half contemptuous; at any rate the life of the villein is worth the life of twenty-four serfs[83]. Then again, it is by no means certain that a lord can not kill his serf with impunity. 'If,' says our text, 'a man slay his own serf, his is the sin and his is the loss':--we may interpret this to mean that he has sinned but sinned against himself[84]. Then again, for the evil deeds of his slave the master is in some degree responsible. If my slave be guilty of a petty theft not worthy of death, I am bound to make restitution; if the crime be a capital one and he be taken handhaving, then he must 'die like a free man[85].' If my slave be guilty of homicide, my duty is to set him free and hand him over to the kindred of the slain, but apparently I may purchase his life by a sum of 40 shillings, a sum much less than the _wer_ of the slain man[86]. We must not be too hard on the owners of delinquent slaves. There are cases, for example, in which, several slaves having committed a crime, one of them chosen by lot must suffer for the sins of all[87]. Our author is borrowing from the laws of several different centuries and does not arrive at any neat result; nor must we wonder at this, for the problems presented to jurisprudence by the crimes and delicts of slaves are very intricate. Then again, we have the rule that if free men and serfs join in a crime, the whole guilt is to be attributed to the free: he who joins with a slave in a theft has no companion[88]. On the whole, though the slave is likely to have as a matter of fact a _peculium_ of his own, a _peculium_ out of which he may be able to pay for his offences and even perhaps to purchase his liberty[89], the _servus_ of our Leges seems to be in the main a rightless being. We look in vain for any trace of that idea of the relativity of servitude which becomes the core of Bracton's doctrine[90]. At the same time we observe that many, perhaps most, of the rules which mark the slavish condition of the serf are ancient rules and rules that are becoming obsolete. In the twelfth century the old system of _wer_ and _bót_ is already vanishing, though an antiquarian lawyer may yet try to revivify it. When it disappears altogether before the new law, which holds every grave crime to be a felony, and punishes almost every felony with death[91], many grand differences between the villein and the serf will have perished. The gallows is a great leveller.

[Return to the _servus_ of Domesday.]

If now we recur to the days of the Conquest, we cannot doubt that the law knew a definite class of slaves, and marked them off by many distinctions from the _villani_ and _cotarii_, and even from the _coliberti_. Sums that seem high were being paid for men whose freedom was being purchased[92]. At Lewes the toll paid for the sale of an ox was a halfpenny; on the sale of a man it was fourpence[93]. In later documents we may sometimes see a distinction well drawn. Thus in the Black Book of Peterborough, compiled in 1127 or thereabouts, we may read how on one of his manors the abbot has eight herdsmen (_bovarii_), how each of them holds ten acres, has to do labour services and render loaves and poultry. And then we read that each of them must pay one penny for his head if he be a free man (_liber homo_), while he pays nothing if he be a _servus_[94]. This is a well-drawn distinction. Of two men whose economic position is precisely the same, the one may be free, the other a slave, and it is the free man, not the slave, who has to pay a head-penny. Now when the Conqueror's surveyors, or rather the jurors, call a man a _servus_ they are, so it seems to us, thinking rather of his legal status than of his position in the economy of a manor. At any rate we ought to observe that the economic stratification of society may cut the legal stratification. We are accustomed perhaps to suppose that while the _villani_ have lands that are in some sense their own, while they support themselves and their families by tilling those lands, the _servus_ has no land that is in any sense his own, but is fed at his lord's board, is housed in his lord's court, and spends all his time in the cultivation of his lord's demesne lands. Such may have been the case in those parts of England where we hear of but few _servi_; those few may have been inmates of the lord's house and have had no plots of their own. But such can hardly have been the case in the south-western counties; the _servi_ are too many to be menials. Indeed it would seem that these _servi_ sometimes had arable plots, and had oxen, which were to be distinguished from the demesne oxen of their lords--not indeed as a matter of law, but as a matter of economic usage[95]. It is plain that the legal and the economic lines may intersect one another; the menial who is fed by the lord and who must give his whole time to the lord's work may be a free man; the slave may have a cottage and oxen and a plot of arable land, and labour for himself as well labouring for his lord. Hence a perplexed and uncertain terminology:--the _servus_ who has land and oxen may be casually called a _villanus_[96], and we cannot be sure that no one whom our record calls a _servus_ has the wergild of a free man. Nor can we be sure that the enumeration of the _servi_ is always governed by one consistent principle. In the shires of Gloucester, Hereford and Worcester we read of numerous _ancillae_--in Worcestershire of 677 _servi_ and 101 _ancillae_[97]--and this may make us think that in this district all the able-bodied serfs are enumerated, whether or no they have cottages to themselves[98]. We may strongly suspect that the king's commissioners were not much interested in the line that separated the _villani_ from the _servi_, since the lord was as directly answerable for the geld of any lands that were in the occupation of his villeins as he was for the geld of those plots that were tilled for him by his slaves. That there should have been never a _theów_ in all Yorkshire and Lincolnshire is hardly credible, and yet we hear of no _servi_ in those counties.

[Disappearance of _servi_.]

This being so, we encounter some difficulty if we would put just the right interpretation on a remarkable fact that is visible in Essex. The description of that county tells us not only how many _villani_, _bordarii_ and _servi_ there are now, but also how many there were in King Edward's day, and thus shows what changes have taken place during the last twenty years. Now on manor after manor the number of villeins and bordiers, if of them we make one class, has increased, while the number of _servi_ has fallen. We take 100 entries (four batches of 25 apiece) and see that the number of _villani_ and _bordarii_ has risen from 1486 to 1894, while the number of _servi_ has fallen from 423 to 303. We make another experiment with a hundred entries. This gives the following result:--

1066 1086 Villani 1273 1247 Bordarii 810 1241 Servi 384 312

This decrease in the number of _servi_ seems to be pretty evenly distributed throughout the county[99]. We shall not readily ascribe the change to any mildheartedness of the lords. They are Frenchmen, and in all probability they have got the most they could out of a mass of peasantry made malleable and manageable by the Conquest. We may rather be entitled to infer that there has been a considerable change in rural economy. For the cultivation of his demesne land the lord begins to rely less and less on the labour of serfs whom he feeds, more and more upon the labour of tenants who have plots of their own and who feed themselves. From this again we may perhaps infer that the labour services of the _villani_ and _bordarii_ are being augmented. But at any rate it speaks ill of their fate, that under the sway of foreigners, who may fairly be suspected of some harshness and greed, their inferiors, the true _servi_, are somewhat rapidly disappearing. However, it is by no means impossible that with a slavery so complete as that of the English _theów_ the Normans were not very familiar in their own country[100].

FOOTNOTES:

[61] Hist. Eng. Law, i. 398.

[62] D. B. i. 34, Limenesfeld.

[63] D. B. i. 132 b, Hiz.

[64] D. B. i. 132 b, Waldenei.

[65] D. B. i. 136, Sandone.

[66] Æthelb. 26.

[67] Tacitus, Germ. c. 25: '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.'

[68] Haddan and Stubbs, Councils, iii. 202.

[69] See on the one hand Maurer, K. U. i. 410, on the other a learned essay by Jastrow, Zur strafrechtlichen Stellung der Sklaven, in Gierke's Untersuchungen zur Deutsche Geschichte, vol. i. Maurer holds that the Anglo-Saxon slave is in the main a chattel, that _e.g._ the master must answer for the delicts of his slave in the same way that the owner answers for damage done by his beasts, and that this liability can be clearly marked off from the duty of the lord of free retainers who is merely bound to produce them in court. Jastrow, on the contrary, thinks that even at a quite early time the Anglo-Saxon slave is treated as a person by criminal law; he has a wergild; he can be fined; his trespasses are never compared to the trespasses of beasts; the lord's duty, if one of his men is charged with crime, is much the same whether that man be free or bond. Any theory involves an explanation of several passages that are obscure and perhaps corrupt.

[70] Cnut, II. 45-6.

[71] Schmid, Appendix V. (Of Ranks); Pseudoleges Canuti, 60 (Schmid, p. 431).

[72] Leg. Hen. 76 § 7: 'Differentia tamen weregildi multa est in Cantia villanorum et baronum.'

[73] Leg. Hen. 76 § 2.

[74] Leg. Hen. 76 § 3.

[75] Ibid. 76 § 3.

[76] Ibid. 77; see Hist. Eng. Law, i. 405.

[77] Ibid. 78 § 2. The difficult _strublum_ we leave untouched.

[78] Ibid. 78 § 2 from Cnut, II. 20. On this see Jastrow's comment, op. cit. p. 80.

[79] Ibid. 70 § 5.

[80] Ibid. 70 § 1; 76 § 4.

[81] Ibid. 69 § 2.

[82] Ibid. 70 § 4: 'Si liber servum occidat similiter reddat parentibus 40 den. et duas mufflas et unum pullum [_al._ billum] mutilatum.' The _mufflae_ are thick gloves. Compare Ancient Laws of Wales, i. 239, 511; the bondman has no _galanas_ (wergild) but if injured he receives a _saraad_; 'the saraad of a bondman is twelve pence, six for a coat for him, three for trousers, one for buskins, one for a hook and one for a rope, and if he be a woodman let the hook-penny be for an axe.' If we read _billum_ instead of _pullum_ the English rule may remind us of the Welsh. His hedger's gloves and bill-hook are the arms appropriate to the serf, 'servitutis arma'; cf. Leg. Hen. 78 § 2. As to the _man-bót_ see Liebermann, Leg. Edwardi, p. 71.

[83] In Leg. Hen. 81 § 3 (a passage which seems to show that by his master's favour even the _servus_ may sometimes sue for a wrong done to him) we have this sum:--_villanus_ : _cothsetus_ : _servus_ :: 30 : 15 : 6.

[84] Ibid. 75 § 4: 'suum peccatum est et dampnum.' See also 70 § 10, an exceedingly obscure passage.

[85] Ibid. 59 § 23.

[86] Ibid. 70 § 5; but for this our author has to go back as far as Ine.

[87] Ibid. 59 § 25.

[88] Ibid. 59 § 24; 85 § 4: 'solus furatur qui cum servo furatur.'

[89] Ibid. 78 § 3; 59 § 25.

[90] Hist. Eng. Law, i. 398, 402.

[91] Hist. Eng. Law, ii. 457.

[92] See the Bath manumissions, Kemble, Saxons, i. 507 ff. Sometimes a pound or a half-pound is paid.

[93] D. B. i. 26.

[94] Chron. Petrob. 163.

[95] D. B. i. 105 b, Devon: 'Rolf tenet de B[alduino] Boslie ... Terra est 8 carucis. In dominio est 1 caruca et dimidia et 7 servi cum 1 caruca.' D. B. iv. 265: 'Balduinus habet 1 mansionem quae vocatur Bosleia ... hanc possunt arare 8 carrucae et modo tenet eam Roffus de Balduino. Inde habet R. 1 ferdinum et 1 carrucam et dimidiam in dominio et villani tenent aliam terram et habent ibi 1 carrucam. Ibi habet R. 7 servos.' In the Exeter record these seven serfs seem to get reckoned as being both _servi_ and _villani_. So in the account of Rentis, D. B. iv. 204-5, the lord is said to have one quarter of the arable in demesne and two oxen, while the _villani_ are said to have the rest of the arable and one team; but the only _villani_ are 8 _coliberti_ and 4 _servi_.

[96] See last note.

[97] Ellis, Introduction, ii. 504-6.

[98] See, for example, the following Herefordshire entry, D. B. i. 180 b: 'In dominio sunt 2 carucae et 4 villani et 8 bordarii et prepositus et bedellus. Inter omnes habent 4 carucas. Ibi 8 inter servos et ancillas et vaccarius et daia.'

[99] Mr Round has drawn attention to the great increase of _bordarii_: Antiquary (1882) vi. 9. In the second of our two experiments the cases were taken from the royal demesne and the lands of the churches. The surveys of Norfolk and Suffolk profess to enumerate the various classes of peasants T. R. E.; but commonly each entry reports that there has been no change. Without saying that we disbelieve these reports, we nevertheless may say that a verdict which asserts that things have always (_semper_) been as they now are may easily be the outcome of nescience.

[100] Hist. Eng. Law, i. 53-4.

§ 3. _The Villeins._

[The boors or coliberts.]

Next above the _servi_ we see the small but interesting class of _buri_, _burs_ or _coliberti_. Probably it was not mentioned in the writ which set the commissioners their task, and this may well be the reason why it appears as but a very small class. It has some 900 members; still it is represented in fourteen shires: Hampshire, Berkshire, Wiltshire, Dorset, Somerset, Devon, Cornwall, Buckingham, Oxford, Gloucester, Worcester, Hereford, Warwick, Shropshire--in short, in the shires of Wessex and western Mercia. Twice over our record explains--a piece of rare good fortune--that _buri_ and _coliberti_ are all one[101]. In general they are presented to us as being akin rather to the _servi_ than to the _villani_ or _bordarii_, as when we are told, 'In demesne there is one virgate of land and there are 3 teams and 11 _servi_ and 5 _coliberti_, and there are 15 _villani_ and 15 _bordarii_ with 8 teams[102].' But this rule is by no means unbroken; sometimes the _coliberti_ are separated from the _servi_ and a precedence over the _cotarii_ or even over the _bordarii_ is given them. Thus of a Wiltshire manor it is written, 'In demesne there are 8 teams and 20 _servi_ and 41 _villani_ and 30 _bordarii_ and 7 _coliberti_ and 74 _cotarii_ have among them all 27 teams[103].' Again of a Warwickshire manor, 'There is land for 26 teams; in demesne are 3 teams and 4 _servi_ and 43 _villani_ and 6 _coliberti_ and 10 _bordarii_ with 16 teams[104].' A classification which turns upon legal status is cut by a classification which turns upon economic condition. The _colibertus_ we take to be an unfreer man (how there come to be degrees of freedom is a question to be asked by and by) than the _cotarius_ or the _bordarius_, but on a given manor he may be a more important person, for he may have plough beasts while the _cotarius_ has none, he may have two oxen while the _bordarius_ has but an ox.

[The Continental colibert.]

[The English boor.]

In calling him a _colibertus_ the Norman clerks are giving him a foreign name, the etymological origin of which is very dark[105]; but this much seems plain, that in the France of the eleventh century a large class bearing this name had been formed out of ancient elements, Roman _coloni_ and Germanic _liti_, a class which was not rightless (for it could be distinguished from the class of _servi_, and a _colibertus_ might be made a _servus_ by way of punishment for his crimes) but which yet was unfree, for the _colibertus_ who left his lord might be pursued and recaptured[106]. As to the Englishman upon whom this name is bestowed we know him to be a _gebúr_, a boor, and we learn something of him from that mysterious document entitled 'Rectitudines Singularum Personarum[107].' His services, we are told, vary from place to place; in some districts he works for his lord two days a week and during harvest-time three days a week; he pays gafol in money, barley, sheep and poultry; also he has ploughing to do besides his week-work; he pays hearth-penny; he and one of his fellows must between them feed a dog. It is usual to provide him with an outfit of two oxen, one cow, six sheep, and seed for seven acres of his yardland, and also to provide him with household stuff; on his death all these chattels go back to his lord. Thus the boor is put before us as a tenant with a house and a yardland or virgate, and two plough oxen. He will therefore play a more important part in the manorial economy than the cottager who has no beasts. But he is a very dependent person; his beasts, even the poor furniture of his house, his pots and crocks, are provided for him by his lord. Probably it is this that marks him off from the ordinary _villanus_ or 'townsman,' and brings him near the serf. In a sense he may be a free man. We have seen how the law, whether we look for it to the code of Cnut or to the Leges Henrici, is holding fast the proposition that every one who is not a _theówman_ is a free man, that every one is either a _liber homo_ or a _servus_. We have no warrant for denying to the boor the full wergild of 200 shillings. He pays the hearth-penny, or Peter's penny, and the document that tells us this elsewhere mentions this payment as the mark of a free man[108]. And yet in a very true and accurate sense he may be unfree, unfree to quit his lord's service. All that he has belongs to his lord; he must be perpetually in debt to his lord; he could hardly leave his lord without being guilty of something very like theft, an abstraction of chattels committed to his charge. Very probably if he flies, his lord has a right to recapture him. On the other hand, so dependent a man will be in a very strict sense a tenant at will. When he dies not only his tenement but his stock will belong to the lord; like the French _colibert_ he is _mainmortable_. At the same time, to one familiar with the cartularies of the thirteenth century the rents and services that this boor has to pay and perform for his virgate will not appear enormous. If we mistake not, many a _villanus_ of Henry III.'s day would have thought them light. Of course any such comparison is beset by difficulties, for at present we know all too little of the history of wages and prices. Nevertheless the intermediation of this class of _buri_ or _coliberti_ between the serfs and the villeins of Domesday Book must tend to raise our estimate both of the legal freedom and of the economic welfare of that great mass of peasants which is now to come before us[109].

[Villani, bordarii, cotarii.]

That great mass consists of some 108,500 _villani_, some 82,600 _bordarii_, and some 6,800 _cotarii_ and _coscets_[110]. Though in manor after manor we may find representatives of each of these three classes, we can see that for some important purpose they form but one grand class, and that the term _villanus_ may be used to cover the whole genus as well as to designate one of its three species. In the Exon Domesday a common formula, having stated the number of hides in the manor and the number of teams for which it can find work, proceeds to divide the land and the existing teams between the demesne and the _villani_--the _villani_, it will say, have so many hides and so many teams. Then it will state how many _villani_, _bordarii_, _cotarii_ there are. But it will sometimes fall out that there are no _villani_ if that term is to be used in its specific sense, and so, after having been told that the _villani_ have so much land and so many teams, we learn that the only _villani_ on this manor are _bordarii_[111]. The lines which divide the three species are, we may be sure, much rather economic than legal lines. Of course the law may recognise them upon occasion[112], but we can not say that the _bordarius_ has a different status from that of the _villanus_. In the Leges both fall under the term _villani_; indeed, as hereafter will be seen, that term has sometimes to cover all men who are not _servi_ but are not noble. Nor must we suppose that the economic lines are drawn with much precision or according to any one uniform pattern. Of _villani_ and _bordarii_ we may read in every county; _cotarii_ or _coscets_ in considerable numbers are found only in Kent, Sussex, Surrey, Middlesex, Wiltshire, Dorset, Somerset, Berkshire, Hertford and Cambridge, though they are not absolutely unknown in Buckingham, in Devon, in Hereford, Worcester, Shropshire, Yorkshire. We can not tell how the English jurors would have expressed the distinction between _bordarii_ and _cotarii_, for while the _cot_ is English, the _borde_ is French. If we are entitled to draw any inference from the distribution of the cottiers, it would be that the smallest of small tenements were to be found chiefly along the southern shore; but then there are no _cotarii_ in Hampshire, plenty in Sussex, Surrey, Wiltshire and Dorset. Again, in the two shires last mentioned some distinction seems to be taken between the _coscets_ and the _cotarii_, the former being superior to the latter[113]. Two centuries later we find a similar distinction among the tenants of Worcester Priory. There are _cotmanni_ whose rents and services are heavier, and whose tenements are presumably larger than those of the _cotarii_, though the difference is not very great[114].

[Size of the villain's tenement.]

The vagueness of distinctions such as these is well illustrated by the failure of the term _bordarius_ (and none is more prominent in Domesday Book) to take firm root in this country[115]. The successors of the _bordarii_ seem to become in the later documents either _villani_ with small or cottiers with large tenements. Distinctions which turn on the amount of land that is possessed or the amount of service that is done cannot be accurately formulated and forced upon a whole country. Perhaps in general we may endow the _villanus_ of Domesday Book with a virgate or quarter of a hide, while we ascribe to the _bordarius_ a less quantity and doubt whether the _cotarius_ usually had arable land. But the survey of Middlesex, which is the main authority touching this matter, shows that the _villanus_ may on occasion have a whole hide[116], that is four virgates, and that often he has but half a virgate; it shows us that the _bordarius_, though often he has but four or five acres, may have a half virgate, that is as much as many a _villanus_[117]; it shows us that the _cotarius_ may have five acres, that is as much as many a _bordarius_[118], though he will often have no more than a croft[119]. In Essex we hear of _bordarii_ who held no arable land[120]. Nor dare we lay down any stern rule about the possession of plough beasts. It would seem as if sometimes the _bordarius_ had oxen, while sometimes he had none[121]. The _villanus_ might have two oxen, but he might have more or less. We may find that in Cornwall a single team of eight is forthcoming where there are[122]

3 villani, 4 bordarii, 2 servi 2 " 2 " 3 " 0 " 5 " 2 " 1 " 5 " 1 " 2 " 5 " 4 " 2 " 3 " 1 " 3 " 6 " 3 "

In some Gloucestershire manors every villein seems to have a full plough team[123]. Merely economic grades are essentially indefinite. Who could have defined a 'cottage' in the eleventh century? Who can define one now[124]?

[Villeins and cottiers.]

In truth the vast class of men that we are examining must have been heterogeneous to a high degree. Not only were some members of it much wealthier than others, but in all probability some were economically subject to others. So it was in later days. In the thirteenth century we may easily find a manor in which the lord is paying hardly any wages. He gets nearly all his agricultural work done for him by his villeins and his cottiers. Out of his cottiers however he will get but one day's work in the week. If then we ask what the cottiers are doing during the rest of their time, the answer surely must be that they are often working as hired labourers on the villein's virgates, for a cottier can not have spent five days in the week over the tillage of his poor little tenement. It is a remarkable feature of the manorial arrangement that the meanest of the lord's _nativi_ are but rarely working for him. Thus if we were to remove the lord in order that the village community might be revealed, we should still see not only rich and poor, but employers and employed, villagers and 'undersettles.'

[Freedom and unfreedom of _villani_.]

Now all these people are in a sense unfree, while yet in some other sense they are free. Let us then spend a short while in discussing the various meanings that freedom may have in a legal classification of the sorts and conditions of men. When we have put out of account the rightless slave, who is a thing, it still remains possible to say that some men are unfree, while others are free, and even that freedom is a matter of degree. But we may use various standards for the measurement of liberty.

[Meaning of freedom.]

Perhaps in the first place we shall think of what German writers call _Freizügigkeit_, the power to leave the master whom one has been serving. This power our ancestors would perhaps have called 'fare-worthiness[125].' If the master has the right to recapture the servant who leaves his service, or even if he has the right to call upon the officers of the state to pursue him and bring him back to his work, then we may account this servant an unfree man, albeit the relation between him and his master has been created by free contract. Such unfreedom is very distinct from rightlessness. As a freak of jurisprudence we might imagine a modern nobleman entitled to reduce by force and arms his fugitive butler to well-paid and easy duties, while all the same that butler had rights against all the world including his master, had access to all courts, and could even sue for his wages if they were not punctually paid. If we call him unfree, then freedom will look like a matter of degree, for the master's power to get back his fugitive may be defined by law in divers manners. May he go in pursuit and use force? Must he send a constable or sheriff's officer? Must he first go to court and obtain a judgment, 'a decree for specific performance' of the contract of service? The right of recapture seems to shade off gradually into a right to insist that a breach of the contract of service is a criminal offence to be punished by fine or imprisonment.

Then, again, there may seem to us to be more of unfreedom in the case of one who was born a servant than in the case of one who has contracted to serve, though we should note that one may be born to serve without being born rightless.

More to the point than these obvious reflections will be the remark that in the thirteenth century we learn to think of various spheres or planes of justice. A right good in one sphere may have no existence in another. The rights of the villeins in their tenements are sanctioned by manorial justice; they are ignored by the king's courts. Here, again, the ideas of freedom and unfreedom find a part to play. True that in the order of legal logic freedom may precede royal protection; a tenure is protected because it is free; still men are soon arguing that it is free because it is protected, and this probably discloses an idea which lies deep[126]:--the king's courts, the national courts, are open to the free; we approach the rightlessness of the slave if our rights are recognized only in a court of which our lord is the president.

The thirteenth century will also supply us with the notion that continuous agricultural service, service in which there is a considerable element of uncertainty, is unfree service. Where from day to day the lord's will counts for much in determining the work that his tenants must do, such tenants, even if they be free men, are not holding freely. But uncertainty is a matter of degree, and therefore unfreedom may easily be regarded as a matter of degree[127].

Then, again, in the law books of the Norman age we see distinct traces of a usage which would make _liber_ or _liberalis_ an equivalent for our _noble_, or at least for our _gentle_. The common man with the wergild of 200 shillings, though indubitably he is no _servus_, is not _liberalis homo_[128].

Lastly, in our thirteenth century we learn that privileges and exceptional immunities are 'liberties' and 'franchises.' What is our definition of a liberty, a franchise? A portion of royal power in the hands of a subject. In Henry III.'s day we do not say that the Earl of Chester is a freer man, more of a _liber homo_, than is the Earl of Gloucester, but we do say that he has more, greater, higher liberties.

Therefore we shall not be surprised if in Domesday Book what we read of freedom, of free men, of free land is sadly obscure. Let us then observe that the _villanus_ both is and is not a free man.

[The villein as free.]

According to the usual terminology of the Leges, everyone who is above the rank of a _servus_, but below the rank of a thegn, is a _villanus_. The _villanus_ is the non-noble _liber homo_. All those numerous sokemen of the eastern counties whom Domesday ranks above the _villani_, all those numerous _liberi homines_ whom it ranks above the sokemen, are, according to this scheme, _villani_ if they be not thegns. And this scheme is still of great importance, for it is the scheme of _bót_ and _wer_. By what have been the most vital of all the rules of law, all these men have been massed together; each of them has a _wer_ of two hundred shillings[129]. This, we may remark in passing, is no trivial sum, though the shillings are the small Saxon shillings of four pence or five pence. There seems to be a good deal of evidence that for a long time past the ox had been valued at 30 pence, the sheep at 5 pence[130]. At this rate the ceorl's death must be paid for by the price of some twenty-four or thirty oxen. The sons of a _villanus_ who had but two oxen must have been under some temptation to wish that their father would get himself killed by a solvent thegn. Very rarely indeed do the Leges notice the sokeman or mention _liberi homines_ so as to exclude the _villani_ from the scope of that term[131]. Domesday Book also on occasion can divide mankind into slaves and free men. It does so when it tells us that on a Gloucestershire manor there were twelve _servi_ whom the lord had made free[132]. It does so again when it tells us that in the city of Chester the bishop had eight shillings if a free man, four shillings if a serf, did work upon a festival[133]. So in a description of the manor of South Perrott in Somerset we read that a certain custom is due to it from the manor of 'Cruche' (Crewkerne), namely, that every free man must render one bloom of iron. We look for these free men at 'Cruche' and see no one on the manor but _villani_, _bordarii_, _coliberti_ and _servi_[134]. Of the Count of Mortain's manor of Bickenhall it is written that every free man renders a bloom of iron at the king's manor of Curry; but at Bickenhall there is no one above the condition of a _villanus_[135]. Other passages will suggest that the _villanus_ sometimes is and sometimes is not _liber homo_. On a Norfolk manor we find free villeins, _liberi villani_[136].

[The villein as unfree.]

For all this, however, there must be some very important sense in which the _villanus_ is not free. In the survey of the eastern counties he is separated from the _liberi homines_ by the whole class of _sochemanni_. 'In this manor,' we are told, 'there was at that time a free man with half a hide who has now been made one of the villeins[137].' At times the word _francus_ is introduced so as to suggest for a moment that, though the villein may be _liber homo_, he is not _francus_[138]. But this suggestion, even if it be made, is not maintained, and there are hundreds of passages which implicitly deny that the villein is _liber homo_. But then these passages draw the line between freedom and unfreedom at a point high in the legal scale, a point far above the heads of the _villani_. At least for the main purposes of Domesday Book the free man is a man who holds land freely. Let us observe what is said of the men who have been holding manors. The formula will vary somewhat from county to county, but we shall often find four phrases used as equivalent, '_X_ tenuit et liber homo fuit,' '_X_ tenuit ut liber homo,' '_X_ tenuit et cum terra sua liber fuit,' '_X_ tenuit libere[139].' But this freeholding implies a high degree of freedom, freedom of a kind that would have shocked the lawyers of a later age.

[Anglo-Saxon 'freeholding.']

With some regrets we must leave the peasants for a while in order that we may glance at the higher strata of society. We may take it as certain that, at least in the eyes of William's ministers, the ordinary holder of a manor in the time of the Confessor had been holding it under (_sub_) some lord, if not of (_de_) some lord. But then the closeness of the connexion between him and his lord, the character of the relation between lord, man and land, had varied much from case to case. Now these matters are often expressed in terms of a calculus of personal freedom. But let us begin with some phrases which seem intelligible enough. The man can, or he can not, 'sell or give his land'; he can, or he can not, 'sell or give it without the licence of his lord'; he can sell it if he has first offered it to his lord[140]; he can sell it on paying his lord two shillings[141]. This seems very simple:--the lord can, or (as the case may be) can not, prevent his tenant from alienating the land; he has a right of preemption or he has a right to exact a fine when there is a change of tenants. But then come phrases that are less in harmony with our idea of feudal tenure. The man can not sell his land 'away from' his lord[142], he can not give or sell it 'outside' a certain manor belonging to his lord[143], or, being the tenant of some church, he can not 'separate' his land from the church[144], or give or sell it outside the church[145].

[Freeholding and the lord's rights.]

We have perhaps taken for granted under the influence of later law that an alienation will not impair the lord's rights, and will but give him a new instead of an old tenant. But it is not of any mere substitution such as this that these men of the eleventh century are thinking. They have it in their minds that the man may wish, may be able, utterly to withdraw his land from the sphere of his lord's rights. Therefore in many cases they note with some care that the man, though he can give or sell his land, can not altogether put an end to such relation as has existed between this land and his lord. He can sell, but some of the lord's rights will 'remain,' in particular the lord's 'soke' over the land (for the present let us say his jurisdiction over the land) will remain[146]. The purchaser will not of necessity become the 'man' of this lord, will not of necessity owe him any _servitium_ or _consuetudo_, but will come under his jurisdiction[147]. Interchanging however with these phrases[148], we have others which seem to point to the same set of distinctions, but to express them in terms of personal freedom. The man can, or else he can not, withdraw from his lord, go away from his lord, withdraw from his lord's manor; he can or he can not withdraw with his land; he can or can not go to another lord, or go wherever he pleases[149]. Some of these phrases will, if taken literally, seem to say that the persons of whom they are used are tied to the soil; they can not leave the land, or the manor, or the soke. Probably in some of these cases the bond between man and lord is a perpetual bond of homage and fealty, and if the man breaks that bond by refusing the due obedience or putting himself under another lord, he is guilty of a wrong[150]. But of pursuing him and capturing him and reducing him to servitude there can be no talk. Many of these persons who 'can not recede' are men of wealth and rank, of high rank that is recognized by law, they are king's thegns or the thegns of the churches, they are 'twelve-hundred men[151].' However, it is not the man's power to leave his lord so much as the power to leave his lord and take his land with him, that these phrases bring to our notice; or rather the assumption is made that no one will want to leave his lord if he must also leave his land behind him. And then this power of taking land from this lord and bringing it under another lord is conceived as an index of personal freedom. Thus we read: 'These men were so free that they could go where they pleased[152],' and again, 'Four sokemen held this land, of whom three were free, while the fourth held one hide but could not give or sell it[153].' Not that no one is called a _liber homo_ unless he has this power of 'receding' from his lord; far from it; all is a matter of degree; but the free man is freer if he can 'go to what lord he pleases,' and often enough the phrases 'X tenuit et liber homo fuit,' 'X tenuit libere,' 'X tenuit ut liber homo' seem to have no other meaning than this, that the occupant of the land enjoyed the liberty of taking it with him whithersoever he would. Therefore there is no tautology in saying that the holder of the land was a thegn and a free man, though of course there is a sense, there are many senses, in which every thegn is free[154]. All this talk of the freedom that consists in choosing a lord and subjecting land to him may well puzzle us, for it puzzled the men of the twelfth century. The chronicler of Abingdon abbey had to explain that in the old days a free man could do strange things[155].

[The scale of freeholding.]

Comparisons may be instituted between the freedom of one free man and that of another:--'Five thegns held this land of Earl Edwin and could go with their land whither they would, and below them they had four soldiers, who were as free as themselves[156].' A high degree of liberty is marked when we are told that, 'The said men were so free that they could sell their land with soke and sake wherever they would[157].' But there are yet higher degrees of liberty. Of Worcestershire it is written, 'When the king goes upon a military expedition, if anyone who is summoned stays at home, then if he is so free a man that he has his sake and soke and can go whither he pleases with his land, he with all his land shall be in the king's mercy[158].' The free man is the freer if he has soke and sake, if he has jurisdiction over other men. Exceptional privileges, immunities from common burdens, are already regarded as 'liberties.' This is no new thing; often enough when the Anglo-Saxon land books speak of freedom they mean privilege.

[Free land.]

The idea of freedom is equally vague and elastic if, instead of applying it to men, we apply it to land or the tenure of land. Two _bordarii_ are now holding a small plot; 'they themselves held it freely in King Edward's day[159].' Here no doubt there has been a fall; but how deep a fall we can not be sure. To say that a man's land is free may imply far more freedom than freehold tenure implies in later times; it may imply that the bond between him and his lord, if indeed he has a lord, is of a purely personal character and hardly gives the lord any hold over the land[160]. But this is not all. Perfect freedom is not attained so long as the land owes any single duty to the state. Often enough--but exactly how often it were no easy task to tell--the _libera terra_ of our record is land that has been exempted even from the danegeld; it is highly privileged land[161]. Let us remember that at the present day, though the definition of free land or freehold land has long ago been fixed, we still speak as though free land might become freer if it were 'free of land-tax and tithe rent-charge.'

[The unfreedom of the villein.]

If now we return to the _villanus_ and deny that he is _liber homo_ and deny also that he is holding freely, we shall be saying little and using the laxest of terms. There are half-a-dozen questions that we would fain ask about him, and there will be no harm in asking them, though Domesday Book is taciturn.

[Can the villein be pursued?]

Is he free to quit his lord and his land, or can he be pursued and captured? No one word can be obtained in answer to this question. We can only say that in Henry II.'s day the ordinary peasant was regarded by the royal officials as _ascriptitius_; the land that he occupied was said to be part of his lord's demesne; his chattels were his lord's[162]. But then this was conceived to be, at least in some degree, the result of the Norman Conquest and subsequent rebellions of the peasantry[163]. To this we may add that in one of our sets of Leges, the French Leis of William the Conqueror, there are certain clauses which would be of great importance could we suppose that they had an authoritative origin, and which in any case are remarkable enough. The _nativus_ who flies from the land on which he is born, let none retain him or his chattels; if the lords will not send back these men to their land the king's officers are to do it[164]. On the other hand, the tillers of the soil are not to be worked beyond their proper rent; their lord may not remove them from their land so long as they perform their right services[165]. Whether or no we suppose that in the writer's opinion the ordinary peasant was a _nativus_ (of _nativi_ Domesday Book has nothing to say) we still have law more favourable to the peasant than was the common law of Bracton's age:--a tiller who does his accustomed service is not to be ejected; he is no tenant at will.

[Rarity of flight.]

Hereafter we shall show that the English peasants did suffer by the substitution of French for English lords. But the question that we have asked, so urgent, so fundamental, as it may seem to us, is really one which, as the history of the Roman _coloni_ might prove, can long remain unanswered. Men may become economically so dependent on their lords, on wealthy masters and creditors, that the legal question whether they can quit their service has no interest. Who wishes to leave his all and go forth a beggar into the world? On the whole we can find no evidence whatever that the men of the Confessor's day who were retrospectively called _villani_ were tied to the soil. Certainly in Norman times the tradition was held that according to the old law the _villanus_ might acquire five hides of land and so 'thrive to thegn-right[166].'

[The villein and seignorial justice.]

Our next question should be whether he was subject to seignorial justice. This is part of a much wider question that we must face hereafter, for seignorial justice should be treated as a whole. We must here anticipate a conclusion, the proof of which will come by and by, namely, that the _villanus_ sometimes was and sometimes was not the justiciable of a court in which his lord or his lord's steward presided. All depended on the answer to the question whether his lord had 'sake and soke.' His lord might have justiciary rights over all his tenants, or merely over his _villani_, or he might have no justiciary rights, for as yet 'sake and soke' were in the king's gift, and the mere fact that a lord had 'men' or tenants did not give him a jurisdiction over them.

[The villein and national justice.]

With this question is connected another, namely, whether the _villani_ had a _locus standi_ in the national courts. We have seen six _villani_ together with the priest (undoubtedly a free man) and the reeve of each vill summoned to swear in the great inquest[167]. One of the most famous scenes recorded by our book is that in which William of Chernet claimed a Hampshire manor on behalf of Hugh de Port and produced his witnesses from among the best and eldest men of the county; but Picot, the sheriff of Cambridgeshire, who was in possession, replied with the testimony of villeins and mean folk and reeves, who were willing to support his case by oath or by ordeal[168]. Again, in Norfolk, Roger the sheriff claimed a hundred acres and five _villani_ and a mill as belonging to the royal manor of Branfort, and five _villani_ of the said manor testified in his favour and offered to make whatever proof anyone might adjudge to them, but the half-hundred of Ipswich testified that the land belonged to a certain church of St. Peter that Wihtgar held, and he offered to deraign this[169]. Certainly this does not look as if _villani_ were excluded from the national moots. But a rule which valued the oath of a single thegn as highly as the oath of six ceorls would make the ceorl but a poor witness and tend to keep him out of court[170]. The men who are active in the communal courts, who make the judgments there, are usually men of thegnly rank; but to go to court as a doomsman is one thing, to go as a litigant is another[171].

[The villein and his land.]

We may now approach the question whether, and if so in what sense, the land that the _villanus_ occupies is his land. Throughout Domesday Book a distinction is sedulously maintained between the land of the villeins (_terra villanorum_) and the land that the lord has _in dominio_. Let us notice this phrase. Only the demesne land does the lord hold _in dominio_, in ownership. The delicate shade of difference that Bracton would see between _dominicum_ and _dominium_ is not as yet marked. In later times it became strictly correct to say that the lord held in demesne (_in dominico suo_) not only the lands which he occupied by himself or his servants, but also the lands held of him by villein tenure[172]. This usage appears very plainly in the Dialogue on the Exchequer. 'You shall know,' says the writer, 'that we give the name demesnes (_dominica_) to those lands that a man cultivates at his own cost or by his own labour, and also to those which are possessed in his name by his _ascriptitii_; for by the law of this kingdom not only can these _ascriptitii_ be removed by their lords from the lands that they now possess and transferred to other places, but they may be sold and dispersed at will; so that rightly are both they and the lands which they cultivate for the behalf of their lords accounted to be _dominia_[173].' Far other is the normal, if not invariable, usage of Domesday Book. The _terrae villanorum_, the _silvae villanorum_, the _piscariae villanorum_, the _molini villanorum_--for the villeins have woods and fisheries and mills--these the lord does not hold _in dominio_[174]. Then again the oxen of the villeins are carefully distinguished from the oxen of the demesne, while often enough they are not distinguished from the oxen of those who in every sense are free tenants[175]. Now as regards both the land and the oxen we seem put to the dilemma that either they belong to the lord or else they belong to the villeins. We cannot avoid this dilemma, as we can in later days, by saying that according to the common law the ownership of these things is with the lord, while according to the custom of the manor it is with the villeins, for we believe that a hall-moot, a manorial court, is still a somewhat exceptional institution.

On the whole we can hardly doubt that both in their land and in their oxen the villeins have had rights protected by law. Let us glance once more at the scheme of _bót_ and _wer_ that has been in force. A villein is slain; the _manbót_ payable to his lord is marked off from the much heavier _wergild_ that is payable to his kindred. If all that a villein could have belonged to his lord such a distinction would be idle.

[The villein's land and the geld.]

Still we take it that for one most important purpose the villein's land is the lord's land:--the lord must answer for the geld that is due from it. Not that the burden falls ultimately on the lord. On the contrary, it is not unlikely that he makes his villeins pay the geld that is due from his demesne land; it is one of their services that they must 'defend their lord's inland' against the geld. But over against the state the lord represents as well the land of his villeins as his own demesne land. From the great levy of 1084 the demesne lands of the barons had been exempted[176], but no doubt they had been responsible for the tax assessed on the lands held by their _villani_. We much doubt whether the collectors of the geld went round to the cottages of the villeins and demanded here six pence and there four pence; they presented themselves at the lord's hall and asked for a large sum. Nay, we believe that very often a perfectly free tenant paid his geld to his lord, or through his lord[177]. Hence arrangements by which some hides were made to acquit other hides; such, for example, was the arrangement at Tewkesbury; there were fifty hides which had to acquit the whole ninety-five hides from all geld and royal service[178]. And then it might be that the lord, enjoying a special privilege, was entitled to take the geld from his tenants and yet paid no geld to the king; thus did the canons of St. Petroc in Cornwall[179] and the monks of St. Edmund in Suffolk[180]. But as regards lands occupied by villeins, the king, so it seems to us, looks for his geld to the lord and he does not look behind the lord. This is no detail of a fiscal system. A potent force has thus been set in motion. He who pays for land,--it is but fair that he should be considered the owner of that land. We have a hint of this principle in a law of Cnut:--'He who has "defended" land with the witness of the shire, is to enjoy it without question during his life and on his death may give or sell it to whom he pleases[181].' We have another hint of this principle in a story told by Heming, the monk of Worcester:--in Cnut's time but four days of grace were given to the landowner for the payment of the geld; when these had elapsed, anyone who paid the geld might have the land[182]. It is a principle which, if it is applied to the case of lord and villein, will attribute the ownership of the land to the lord and not to the villein.

[The villein's services.]

And then we would ask: What services do the villeins render? A deep silence answers us, and as will hereafter be shown, there are many reasons why we should not import the information given us by the monastic cartularies, even such early cartularies as the Black Book of Peterborough, into the days of the Confessor. No doubt the villeins usually do some labour upon the lord's demesne lands. In particular they help to plough it. A manor, we can see, is generally so arranged that the ratio borne by the demesne oxen to the demesne land will be smaller than that borne by the villeins' oxen to the villeins' land. Thus, to give one example out of a hundred, in a Somersetshire manor the lord has four hides and three teams, the villeins have two hides and three teams[183]. But then the lord gets some help in his agriculture from those who are undoubtedly free tenants. The teams of the free tenants are often covered by the same phrase that covers the teams of the villeins[184]. Radknights who are _liberi homines_ plough and harrow at the lord's court[185]. The very few entries which tell us of the labour of the villeins are quite insufficient to condemn the whole class to unlimited, or even to very heavy work. On a manor in Herefordshire there are twelve bordiers who work one day in the week[186]. On the enormous manor of Leominster there are 238 _villani_ and 85 _bordarii_. The _villani_ plough and sow with their own seed 140 acres of their lord's land and they pay 11 pounds and 52 pence[187]. On the manor of Marcle, which also is in Herefordshire, there are 36 _villani_ and 10 _bordarii_ with 40 teams. These _villani_ plough and sow with their own seed 80 acres of wheat and 71 of oats[188]. At Kingston, yet another manor in the same county, 'the _villani_ who dwelt there in King Edward's day carried venison to Hereford and did no other service, so says the shire[189].' On one Worcestershire manor of Westminster Abbey 10 villeins and 10 bordiers with 6 teams plough 6 acres and sow them with their own seed; on another 8 villeins and 6 bordiers with 6 teams do the like by 4 acres[190]. This is light work. Casually we are told of burgesses living at Tamworth who have to work like the other villeins of the manor of Drayton to which they are attached[191], and we are told of men on a royal manor who do such works for the king as the reeve may command[192]; but, curiously enough, it is not of any villeins but of the Bishop of Worcester's riding men (_radmanni_) that it is written 'they do whatever is commanded them[193].'

[Money rents paid by villeins.]

With our thirteenth century cartularies before us, we might easily underrate the amount of money that was already being paid as the rent of land at the date of the Conquest. In several counties we come across small groups of _censarii_, _censores_, _gablatores_ who pay for their land in money, of _cervisarii_ and _mellitarii_ who bring beer and honey. Renders in kind, in herrings, eels, salmon are not uncommon, and sometimes they are 'appreciated,' valued in terms of money. The pannage pig or the grass swine, which the villeins give in return for mast and herbage, is often mentioned. Throughout Sussex it seems to be the custom that the lord should have 'for herbage' one pig from every villein who has seven pigs[194]. But money will be taken instead of swine, oxen or fish[195]. The _gersuma_, the _tailla_, the theoretically free gifts of the tenants, are sums of money. But often enough the _villanus_ is paying a substantial money rent. We have seen how at Leominster villeins plough and sow 140 acres for their lord and pay a rent of more than £11[196]. At Lewisham in Kent the Abbot of Gand has a manor valued at £30; of this £2 is due to the profits of the port while two mills with 'the gafol of the rustics' bring in £8. 12_s._[197] Such entries as the following are not uncommon--there is one villein rendering 30_d._[198]--there is one villein rendering 10_s._[199]--46 _cotarii_ with one hide render 30 shillings a year[200]--the villeins give 13_s._ 4_d._ by way of _consuetudo_[201]. No doubt it would be somewhat rare to find a villein discharging all his dues in money--this is suggested when we are told how on the land of St. Augustin one Wadard holds a large piece 'de terra villanorum' and yet renders no service to the abbot save 30_s._ a year[202]. At least in one instance the villeins seem to be holding the manor in farm, that is to say, they are farming the demesne land and paying a rent in money or in provender[203]. We dare not represent the stream of economic history as flowing uninterruptedly from a system of labour services to a system of rents. We must remember that in the Conqueror's reign the lord very often had numerous serfs whose whole time was given to the cultivation of his demesne. In the south-western counties he will often have two, three or more serfs for every team that he has on his demesne, and, while this is so, we can not safely say that his husbandry requires that the villeins should be labouring on his land for three or four days in every week.

[The English for _villanus_.]

As a last question we may ask: What was the English for _villanus_? It is a foreign word, one of those words which came in with the Conqueror. Surely, we may argue, there must have been some English equivalent for it. Yet we have the greatest difficulty in finding the proper term. True that in the Quadripartitus and the Leges _villanus_ generally represents _ceorl_; _ceorl_ when it is not rendered by _villanus_ is left untranslated in some such form as _cyrliscus homo_. But then _ceorl_ must be a wider word than the _villanus_ of Domesday Book, for it has to cover all the non-noble free men; it must comprehend the numerous _sochemanni_ and _liberi homines_ of northern and eastern England. This in itself is not a little remarkable; it makes us suspect that some of the lines drawn by Domesday Book are by no means very old; they can not be drawn by any of those terms that have been current in the Anglo-Saxon dooms or which still are current in the text-books that lawyers are compiling. To suppose that _villanus_ is equivalent to _gebúr_ is impossible; we have the best warrant for saying that the Latin for _gebúr_ is not _villanus_ but _colibertus_[204]. Nor can we hold that the _villanus_ is a _geneat_. In the last days of the old English kingdom the _geneat_, the 'companion,' the 'fellow,' appears as a horseman who rides on his lord's errands; we must seek him among the _radmanni_ and _rachenistres_ and _drengi_ of Domesday Book[205]. We shall venture the guess that when the Norman clerks wrote down _villanus_, the English jurors had said _túnesman_. As a matter of etymology the two words answer to each other well enough; the _villa_ is the _tún_, and the men of the _villa_ are the men of the _tún_. In the enlarged Latin version of the laws of Cnut, known as Instituta Cnuti, there is an important remark:--tithes are to be paid both from the lands of the thegn and from the lands of the villeins--'tam de dominio liberalis hominis, id est þegenes, quam de terra villanorum, id est tuumannes (_corr._ tunmannes)[206].' Then in a collection of dooms known as the Northumbrian Priests' Law there is a clause which orders the payment of Peter's pence. If a king's thegn or landlord (_landrica_) withholds his penny, he must pay ten half-marks, half to Christ, half to the king; but if a _túnesman_ withholds it, then let the landlord pay it and take an ox from the man[207]. A very valuable passage this is. It shows us how the lord is becoming responsible for the man's taxes: if the tenant will not pay them, the lord must. It is then in connexion with this responsibility of the lord that the term _townsman_ meets us, and, if we mistake not, it is the lord's responsibility for geld that is the chief agent in the definition of the class of _villani_. The pressure of taxation, civil and ecclesiastical, has been forming new social strata, and a new word, in itself a vague word, is making its way into the vocabulary of the law[208].

[Summary.]

The class of villeins may well be heterogeneous. It may well contain (so we think) men who, or whose ancestors, have owned the land under a political supremacy, not easily to be distinguished from landlordship, that belongs to the king; and, on the other hand, it may well contain those who have never in themselves or their predecessors been other than the tenants of another man's soil. In some counties on the Welsh march there are groups of _hospites_ who in fact or theory are colonists whom the lord has invited onto his land[209]; but this word, very common in France, is not common in England. Our record is not concerned to describe the nature or the origin of the villein's tenure; it is in quest of geld and of the persons who ought to be charged with geld, and so it matters not whether the lord has let land to the villein or has acquired rights over land of which the villein was once the owner. Therefore we lay down no broad principle about the rights of the villein, but we have suggested that taken in the mass the _villani_ of the Confessor's reign were far more 'law-worthy' than were the _villani_ of the thirteenth century. We can not treat either the legal or the economic history of our peasantry as a continuous whole; it is divided into two parts by the red thread of the Norman Conquest. That is a catastrophe. William might do his best to make it as little of a catastrophe as was possible, to insist that each French lord should have precisely the same rights that had been enjoyed by his English _antecessor_; it may even be that he endeavoured to assure to those who were becoming _villani_ the rights that they had enjoyed under King Edward[210]. Such a task, if attempted, was impossible. We hear indeed that the English 'redeemed their lands,' but probably this refers only to those English lords, those thegns or the like, who were fortunate enough to find that a ransom would be accepted[211]. We have no warrant for thinking that the peasants, the common 'townsmen,' obtained from the king any covenanted mercies. They were handed over to new lords, who were very free in fact, if not in theory, to get out of them all that could be got without gross cruelty.

[Depression of the villeins.]

We are not left to speculate about this matter. In after days those who were likely to hold a true tradition, the great financier of the twelfth, the great lawyer of the thirteenth century, believed that there had been a catastrophe. As a result of the Conquest, the peasants, at all events some of the peasants, had fallen from their free estate; free men, holding freely, they had been compelled to do unfree services[212]. But if we need not rely upon speculation, neither need we rely upon tradition. Domesday Book is full of evidence that the tillers of the soil are being depressed.

[The Normans and the peasants.]

Here we may read of a free man with half a hide who has now been made one of the villeins[213], there of the holder of a small manor who now cultivates it as the farmer of a French lord _graviter et miserabiliter_[214], and there of a sokeman who has lost his land for not paying geld, though none was due[215]; while the great Richard of Tonbridge has condescended to abstract a virgate from a villein or a villein from a virgate[216]. But, again, it is not on a few cases in which our record states that some man has suffered an injustice that we would rely. Rather we notice what it treats as a quite common event. Free men are being 'added to' manors to which they did not belong. Thus in Suffolk a number of free men have been added to the manor of Montfort; they pay no 'custom' to it before the Conquest, but now they pay £15; Ælfric who was reeve under Roger Bigot set them this custom[217]. Hard by them were men who used to pay 20 shillings, but this same Ælfric raised their rent to 100 shillings[218]. 'A free man held this land and could sell it, but Waleran father of John has added him to this manor[219]':--Entries of this kind are common. The utmost rents are being exacted from the farmers:--this manor was let for three years at a rent of £12 and a yearly gift of an ounce of gold, but all the farmers who took it were ruined[220]--that manor was let for £3. 15_s_. but the men were thereby ruined and now it is valued at only 45_s._[221] About these matters French and English can not agree:--this manor renders £70 by weight, but the English value it at only £60 by tale[222]--the English fix the value at £80, but the French at £100[223]--Frenchmen and Englishmen agree that it is worth £50, but Richard let it to an Englishman for £60, who thereby lost £10 a year, at the very least[224]. 'It can not pay,' 'it can hardly pay,' 'it could not stand' the rent, such are the phrases that we hear. If the lord gets the most out of the farmer to whom he has leased the manor, we may be sure that the farmer is making the most out of the villeins.

[Depression of the sokemen.]

But the most convincing proof of the depression of the peasantry comes to us from Cambridgeshire. The rural population of that county as it existed in 1086 has been classified thus[225]:--

sochemanni 213 villani 1902 bordarii 1428 cotarii 736 servi 548

But we also learn that the Cambridgeshire of the Confessor's day had contained at the very least 900 instead of 200 sokemen[226]. This is an enormous and a significant change. Let us look at a single village. In Meldreth there is a manor; it is now a manor of the most ordinary kind; it is rated at 3 hides and 1 virgate, but contains 5 team-lands; in demesne are half a hide and one team, and 15 _bordarii_ and 3 _cotarii_ have 4 teams, and there is one _servus_. But before the Conquest this land was held by 15 sokemen; 10 of them were under the soke of the Abbey of Ely and held 2 hides and half a virgate; the other 5 held 1 hide and half a virgate and were the men of Earl Ælfgar[227]. What has become of these fifteen sokemen? They are now represented by fifteen bordiers and five cottiers; and the demesne land of the manor is a new thing. The sokemen have fallen, and their fall has brought with it the consolidation of manorial husbandry and seignorial power. At Orwell Earl Roger has now a small estate; a third of it is in demesne, while the residue is held by 2 villeins and 3 bordiers, and there is a serf there. This land had belonged to six sokemen, and those six had been under no less than five different lords; two belonged to Edith the Fair, one to Archbishop Stigand, one to Robert Wimarc's son, one to the king, and one to Earl Ælfgar[228]. Displacements such as this we may see in village after village. No one can read the survey of Cambridgeshire without seeing that the freer sorts of the peasantry have been thrust out, or rather thrust down.

[Further illustrations of depression.]

Evidence so cogent as this we shall hardly find in any part of the record save that which relates to Cambridgeshire and Bedfordshire. But great movements of the kind that we are examining will hardly confine themselves within the boundaries of a county. A little variation in the formula which tells us who held the land in 1066 may hide from us the true state of the case. We can not expect that men will be very accurate in stating the legal relationships that existed twenty years ago. Since the day when King Edward was alive and dead many things have happened, many new words and new forms of thought have become familiar. But taking the verdicts as we find them, there is still no lack of evidence. In Essex we may see the _liberi homines_ disappearing[229]. But we need not look only to the eastern counties. At Bromley, in Surrey, Bishop Odo has a manor of 32 hides, 4 of which had belonged to 'free men' who could go where they pleased, but now there are only villeins, cottiers, and serfs[230]. We turn the page and find Odo holding 10 hides which had belonged to 'the alodiaries of the vill[231].' In Kent Hugh de Port is holding land that was held by 6 free men who could go whither they would; there are now 6 villeins and 14 bordiers there, with one team between them[232]. Students of Domesday were too apt to treat the _antecessores_ of the Norman lords as being in all cases lords of manors. Lords of manors, or rather holders of manors, they often were, but as we shall see more fully hereafter, when we are examining the term _manerium_, such phrases are likely to deceive us. Often enough they were very small people with very little land. For example these six free men whom Hugh de Port represents had only two and a half team-lands. We pass by a few pages and find Hugh de Montfort with a holding which comprises but one team-land and a half; he has 4 villeins and 2 bordiers there. His _antecessores_ were three free men, who could go whither they would[233]. They had need for but 12 oxen; they had no more land than they could easily till, at all events with the help of two or three cottagers or slaves. To all appearance they were no better than peasants. They or their sons may still be tilling the land as Hugh's villeins. When we look for such instances we very easily find them. The case is not altered by the fact that the term 'manor' is given to the holdings of these _antecessores_. In Sussex an under-tenant of Earl Roger has an estate with four villeins upon it. His _antecessores_ were two free men who held the land as two manors. And how much land was there to be divided between the two? There was one team-land. Such holders of _maneria_ were tillers of the soil, peasants, at best yeomen[234]. If they were of thegnly rank, this again does not alter the case. When in the survey of Dorset we read how four thegns held two team-lands, how six thegns held two team-lands, eight thegns two team-lands, nine thegns four team-lands, eleven thegns four team-lands[235], we can not of course be certain that each of these groups of co-tenants had but one holding; but thegnly rank is inherited, and if a thegn will have nine or ten sons there will soon be tillers of the soil with the wergild of twelve hundred shillings. Now if these things are being done in the middling strata of society, if the sokemen are being suppressed or depressed in Cambridgeshire, the alodiaries in Sussex, what is likely to be the fate of the poor? They will have to till their lord's demesne _graviter et miserabiliter_. He can afford to dispense with serfs, for he has villeins.

[The peasants on the royal demesne.]

A last argument must be added. What we see in the thirteenth century of the ancient demesne of the crown[236] might lead us to expect that in Domesday Book 'the manors of St. Edward' would stand out in bold relief. Instead of a population mainly consisting of villeins shall we not find upon them large numbers of sokemen, the ancestors of the men who in after days will be protected by the little writ of right and the _Monstraverunt_? Nothing of the kind. The royal manor differs in no such mode as this from any other manor. If it lies in a county in which other manors have sokemen, then it may or may not have sokemen. If it lies in a county in which other manors have no sokemen, it will have none. Cambridgeshire is a county in which there are some, and have been many, sokemen; there is hardly a sokeman upon the ancient demesne. In after days the men of Chesterton, for example, will have all the peculiar rights attributed by lawyers to the sokemen of St. Edward. But St. Edward, if we trust Domesday Book, had never a sokeman there; he had two villeins and a number of bordiers and cottiers[237]. It seems fairly clear that from an early time, if not from the first days of the Conquest onwards, the king was the best of landlords. The tenants of those manors that were conceived as annexed to the crown, those tenants one and all, save the class of slaves which was disappearing, got a better, a more regular justice than that which the villeins of other lords could hope for. It was the king's justice, and therefore--for the king's public and private capacities were hardly to be distinguished --it was public justice, and so became formal justice, defined by writs, administered in the last resort by the highest court, the ablest lawyers. And so sokemen disappear from private manors. Some of them as tenants in free socage may maintain their position; many fall down into the class of tenants in villeinage. On the ancient demesne the sokemen multiply; they appear where Domesday knew them not; for those who are protected by royal justice can hardly (now that villeinage implies a precarious tenure) be called villeins, they must be 'villein sokemen' at the least. Whether or no we trust the tradition which ascribes to the Conqueror a law in favour of the tillers of the soil, we can hardly doubt that the _villani_ and _bordarii_ whom Domesday Book shows us on the royal manors are treated as having legal rights in their holdings. And if this be true of them, it should be true of their peers upon other manors. Yes, it should be true; the manorial courts that are arising should do impartial justice even between lord and villeins; but who is to make it true?

FOOTNOTES:

[101] D. B. i. 38, Coseham: '8 burs i. coliberti.' Ib. 38 b Dene: 'et coliberti [vel bures _interlined_].'

[102] D. B. i. 65, Wintreburne.

[103] D. B. i. 75, Bridetone et Bere.

[104] D. B. i. 239 b, Etone.

[105] Guérard, Cartulaire de L'Abbaye de S. Père de Chartres, vol. i. p. xlii.

[106] The position of the _coliberti_ is discussed by Guérard, _loc. cit._., and by Lamprecht, Geschichte des Französischen Wirthschaftslebens (in Schmoller's Forschungen, Bd i.), p. 81. Guérard says, 'Les coliberts peuvent se placer à peu près indifferemment ou au dernier des hommes libres, ou à la tête des hommes engagés dans les liens de la servitude.'

[107] Schmid, App. III. C. 4.

[108] Rectitudines, c. 3.

[109] Occasionally the _coliberti_ of D. B. are put before us as paying rents in money or in kind. Thus D. B. i. 38, Hants: 'In Coseham sunt 4 hidae quae pertinent huic manerio ubi T. R. E. erant 8 burs i. coliberti cum 4 carucis reddentes 50 sol. 8 den. minus.' D. B. i. 179 b, Heref.: 'Villani dant de consuetudine 13 sol. et 4 den. et [sex] coliberti reddunt 3 sextarios frumenti et ordei et 2 oves et dimidiam cum agnis et 2 den. et unum obolum.' D. B. i. 165: 'et in Glouucestre 1 burgensis reddens 5 den. et 2 coliberti reddentes 34 den.' In a charter coming from Bishop Denewulf (K. 1079) we read of three wite-theówmen who were boor-born and three who were theów-born.

[110] Ellis, Introduction, ii. 511-14.

[111] For examples see D. B. iv. 211 and the following pages.

[112] Leg. Hen. 81, § 3: 'Quidam villani qui sunt eiusmodi leierwitam et blodwitam et huiusmodi minora forisfacta emerunt a dominis suis, vel quomodo meruerunt de suis et in suos, quorum fletgefoth vel overseunessa est 30 den.; cothseti 15 den.; servi 6 den.'

[113] D. B. i. 71, Haseberie: '5 villani et 13 coscez et 2 cotarii.' Ibid. 80 b: Chinestanestone: '18 villani et 14 coscez et 4 cotarii.'

[114] Worcester Register, 59 b (Sedgebarrow): four _cotmanni_, each of whom pays 20_d._ or works one day a week and two in autumn; two _cottarii_, each of whom pays 12_d._ or works one day a week. Ibid. 69 b (Shipston): two _cotmanni_, each of whom pays 3_s._ or works like a virgater; two _cottarii_, each of whom pays 13_d._ Ibid. 76 a (Cropthorn): two _cotmanni_, each of whom pays 2_s._ or works like a _cottarius_; two _cottarii_, each of whom pays 18_d._ or works one day a week.

[115] Vinogradoff, Villainage, 149, gives a few instances of its occurrence; but it seems to be very rare.

[116] D. B. i. 127 b, Fuleham: 'Ibi 5 villani quisque 1 hidam.' There are a good many other instances.

[117] D. B. i. 130, Hamntone; 'et 4 bordarii quisque de dimidia virga.'

[118] D. B. i. 127, Herges: 'et 2 cotarii de 13 acris.'

[119] D. B. i. 127 b, Fuleham: 'et 22 cotarii de dimidia hida et 8 cotarii de suis hortis.'

[120] D. B. ii. 75 b: 'et 5 bordarii super aquam qui non tenent terram.'

[121] D. B. i. 163 b, Turneberie: 'et 42 villani et 18 radchenistre cum 21 carucis et 23 bordarii et 15 servi et 4 coliberti.' Ibid. 164, Hechanestede: 'et 5 villani et 8 bordarii cum 6 carucis; ibi 6 servi.'

[122] D. B. iv. 215-223; on p. 223 there are two _villani_ with one ox.

[123] D. B. i. 164, Tedeneham: 'Ibi erant 38 villani habentes 38 carucas.' Ibid. 164 b, Nortune, '15 villani cum 15 carucis; Stanwelle, 5 villani cum 5 carucis.'

[124] Malden, Domesday Survey of Surrey (Domesday Studies, ii.) 469, says that in Surrey '_bordarii_ and _cotarii_ only occur once together upon the same manor, and very seldom in the same hundred.... There are three hundreds, Godalming, Wallington and Elmbridge, where the _cotarii_ are nearly universal to the exclusion of _bordarii_. In the others the _bordarii_ are nearly or quite universal, to the exclusion of the _cotarii_.'

[125] Thorpe, Diplomatarium, 623. King Eadwig declares that a certain church-ward of Exeter is 'free and fare-worthy.'

[126] Hist. Eng. Law, i. 341 ff.

[127] Hist. Eng. Law, i. 354-8.

[128] Liebermann, Instituta Cnuti, Transact. Roy. Hist. Soc. vii. 93.

[129] Leg. Will. Conq. I. 8: 'La were del thein 20 lib. in Merchenelahe, 25 lib. in Westsexenelahe. La were del vilain 100 sol. en Merchenelahe e ensement en Westsexene.' Leg. Henr. 70, § 1: 'In Westsexa quae caput regni est et legum, twyhindi, i.e. villani, wera est 4 lib.; twelfhindi, i.e. thaini, 25 lib.' Ibid. 76, § 2: 'Omnis autem wera liberorum est aut servorum ... liberi alii twyhindi, alii syxhindi, alii twelfhindi'; § 6, twihindus = cyrliscus = villanus. As to the 100 shillings in the first of these passages, see Schmid, p. 676. There is some other evidence that the equation, 1 Norman shilling = 2 English shillings, was occasionally treated as correct enough. As to the six-hynde man, see Schmid, p. 653; we may doubt whether he existed in the eleventh century, but according to the Instituta Cnuti the _radchenistres_ of the west may have been six-hynde. We must not draw from Alfred's treaty with the Danes (Schmid, p. 107) the inference that the normal ceorl was seated on _gafol-land_. This international instrument is settling an exceptionally high tariff for the maintenance of the peace. Every man, whatever his rank, is to enjoy the handsome wergild of 8 half-marks of pure gold, except the Danish lysing and the English ceorl who is seated on gafol-land; these are to have but the common wer of 200 shillings. The parallel passage in Æthelred's treaty (Schmid, p. 207) sets £30 on every free man if he is killed by a man of the other race. See Schmid, p. 676.

[130] Ine, 55: a sheep with a lamb until a fortnight after Easter is worth 1 shilling. Æthelstan, VI. 6: a horse 120 pence, an ox 30 pence, a cow 20, a sheep 1 shilling (5 pence). Ibid. 8, § 5: an ox 30 pence. Schmid, App. I. c. 7: a horse 30 shillings, a mare 20 shillings, an ox 30 pence, a cow 24 pence, a swine 8 pence, a sheep 1 shilling, a goat 2 pence, a man (i.e. a slave) 1 pound. Schmid, App. iii. c. 9: a sheep or 3 pence. D. B. i. 117 b: an ox or 30 pence. D. B. i. 26: Tolls at Lewes; for a man 4 pence, an ox a halfpenny. This preserves the equation that we have already seen, namely, 1 slave = 8 oxen. Thus the full team is worth one pound. On the twelfth century Pipe Rolls the ox often costs 3 shillings (= 36 pence) or even more.

[131] In Leg. Will. Conq. I. 16, we hear of the _forisfacturae_ (probably the 'insult fines') due to archbishops, bishops, counts, barons and sokemen; the baron has 10 shillings, the sokeman 40 pence. In the same document, c. 20, § 2, we read of the reliefs of counts, barons, vavassors and villeins. Leg. Edw. Conf. 12, § 4, speaks of the _manbót_ due in the Danelaw; on the death of a _villanus_ or a _socheman_ 12 ores are paid, on the death of a _liber homo_ 3 marks.

[132] D. B. i. 167 b, Heile: 'ibi erant 12 servi quos Willelmus liberos fecit.'

[133] D. B. i. 263: 'Si quis liber homo facit opera in die feriato inde episcopus habet 8 solidos. De servo autem vel ancilla feriatum diem infringente, habet episcopus 4 solidos.' Compare Cnut, II. 45.

[134] D. B. i. 86: 'Huic manerio reddebatur T. R. E. de Cruche per annum consuetudo, hoc est 6 oves cum agnis totidem, et quisque liber homo i. blomam ferri.' South Perrott had belonged to the Confessor, Crewkerne to Edith, probably 'the rich and fair.' For the description of Cruche see D. B. i. 86 b. As to the 'bloom' of iron see Ellis, Introduction, i. 136.

[135] D. B. i. 92. See also p. 87 b, the account of Seveberge.

[136] D. B. ii. 145.

[137] D. B. ii. 1: 'In hoc manerio erat tunc temporis quidam liber homo de dimidia hida qui modo effectus est unus de villanis.'

[138] Thus D. B. i. 127, Mid.: 'inter francos et villanos 45 carucae'; Ibid. 70, Wilts: '4 villani et 3 bordarii et unus francus cum 2 carucis'; Ibid. 241, Warw.: 'Ibi sunt 3 francones homines cum 4 villanis et 3 bordariis.' Sometimes _francus_ may be an equivalent for _francigena_; e.g. i. 254 b, where in one entry we have _unus francigena_ and in the next _unus francus homo_. But an Englishman may be _francus_;