slave. Nor was he in all respects a freeman; he had some of the qualities of both (b). His condition varied at different times; but it seems to have been always better than that of the slave or even of the villain as described by Bracton. His social rank was not fixed. He might purchase his freedom (c). He might acquire property and become a thane. He might possess slaves of his own, and he had rights over the common land of the township (d). Sometimes, at all events, he had the choice of a master; and the wehrgeld or blood money to be paid by one who killed him, did not differ very much from the fine paid by the slayer of a freeman (e). "The ceorl," says Mr. Freeman, "like the ancient Greek citizen, though he might be looked down upon by an aristocratic class, was actually a privileged person as compared with a large number of human beings in his own city or district" (f). But the theows, who were the other branch of the servile class before the Conquest, were really slaves. They were fixed to the soil, so that when it was sold they were sold also (g). They might be beaten and imprisoned by their masters; they were freely bought and sold; they had no wehrgeld, at all events none payable in the event of their being slain by their own masters (h), whose property they were; wrongs done to a theow were wrongs done to his owner. Though the sale of slaves abroad was prohibited, the prohibition was habitually (b) Waitz's Verfassungsgeschichte, vol. i., p. 176. As to the lat and ceorl, see Green's History of the English People, vol. i. 11. (c) Thorpe's Diplomatarium Anglicum, xviii.; Stubbs' Constitutional History, vol. i. 79. Kemble thinks that even the slaves could redeem themselves in later periods. The Saxons in England, vol. i. 212. (d) Stubbs, vol. i. 81, 155, 162, ii. 453. The ccorl seems generally to have possessed land. (c) Stubbs, vol. i. 161. (f) Norman Conquest, i. 88. obscure, and great differences between the authorities exist. See Stubbs' Constitutional History, vol. i. 78; Lappenberg, ii. 320; Gierke's Genossenschaftsrecht; Waitz's Verfassungsgeschichte, vol. i. 176; Von Maurer, Geschichte der Fronhöfe, i. 12. Compare with the distinction between ceorls and theows the account of certain slaves given by Tacitus in his Germania, c. 24 and 25. (h) There is a difference of opinion on this point: Lappenberg, ii. 321; Cobb on Slavery, cxxiii.; and Kemble, i. 209. broken. The Church manumitted many slaves, and strove to improve the lot of others; and evidence exists of the frequency with which wealthy landowners freed their bondmen pro salute animarum. Such laws as Alfred's, which declared that, if any one should in future buy a Christian slave, the time of his servitude should be limited to six years, may have diminished the number of slaves in England (i). But the institution itself survived; and the laws of Ethelstan and Edmund bearing upon slavery are singularly harsh and cruel. Before and, indeed, after the Conquest, English slaves were much in demand in Ireland. Bristol was a favourite mart to which Danes, and especially Irish, resorted in order to purchase young Englishmen and Englishwomen (k). Famine often drove freemen to sell themselves and their children into captivity; they "sold their heads for meat in the evil days" (l). Men became slaves because they had committed grave crimes, and were unable to pay the wehrgeld due to those whom they had wronged. Slavery was sometimes the penalty paid by fugitives who availed themselves of the right of asylum; and the never-ending succession of wars between Danes, Mercians, and West Saxons, helped to recruit the servile class. According to Domesday Book there were about 25,000 servi or theows, and 108,000 villani or ceorls at the time when the Survey was made (m). In Domesday many varieties of bondmen (n) are mentioned; total population before the Conquest at 2,000,000. (n) Mention is made among other classes of villani integri and villani dimidii. Sir Henry Ellis's introduction to Domesday. The latter phrase is sometimes translated villains in gross-a term which does not, so far as I know, occur in Bracton, Fleta, Britton, or the Mirror. The distinction clearly drawn in Littleton between villains in gross and villains regardant, does not seem to have been closely adhered to in practice. See Boldon Book, Surtees Society, Appendix, lxx. and Stubbs, for example, servi, cotarii (o), bordarii, villani, &c. Some of these names disappear soon after the Conquest (p), and others take their place. The exact nature of the changes after that event in the lot of the servile and semi-servile classes is very obscure. The writers who composed treatises on English law in the reigns of Henry III. and Edward I. throw scanty light upon the history of villenage during the previous century. It is often impossible to say whether they describe society as it then was, or whether they are drawing upon their knowledge of the Civil Law, and attempting to mould facts to suit their own theories. Servus, villanus, nativus, and rusticus are often used loosely and apparently indifferently to denote the English serf. Early text-writers, echoing the language of the Institutes, emphatically state that among those not free there is no distinction of condition (q). Fleta and Bracton ignore most of the varieties of serfage mentioned in Domesday; they confound villenage with slavery; and they copy the commonplaces of Roman jurists as to the nature and origin of the latter. The probability is that even before the Conquest the lot of the ceorls had deteriorated; that after the Conquest, in consequence of contact and familiarity with serfage as it existed on the Continent, the two great divisions of men not free were brought nearer to each other; that the lot of the theow was improved, while that of the ceorl was lowered; and that, while slavery tended to disappear, serfage became harsher than it had been (r). The remarks vol. iii. 604. See Chronicon de Melsa, vol. iii., lxi. for case of a nativus being granted without land; also Whitaker's History of Whalley, i. 175. (0) As to this term, see the introduction to Historia et Cartularium of Gloucester, vol. iii. c. 7, and also Hale's Introduction to Register of Worcester Priory, xlvi. (p) It is pointed out by Dean Hale that while the Exchequer Survey of 1086 mentions four classes of tenants of the manors of S. Paul's, the Domesday of 1222 preserves only one of these names. Domesday Book of S. Paul's, xxvi. Von Maurer (Geschichte der Fronhöfe, ii. 3), notices a similar change in the description of the servile classes in Germany. (q) Bracton, Lib. I., c. 6; Cowell's Institutions, 9. As to the supposed relation of the villani to the Roman coloni, see Savigny's Essay, Turner, vol. ii., and Puchta's Institutionen, ii. s. 214. In the laws of Ina the expressions villanus and colonus are used as interchangeable, s. 19. (r) See Dialog. de Scacc. as to of Glanville (Chief Justiciary in 1180) with respect to villenage are singularly meagre. So far as they differ from the accounts of later writers, they show the lot of the villain to a disadvantage. Glanville mentions few modes of emancipation. According to him, even the lords could not invest their villains with complete freedom (s); though emancipated, a serf might be objected to as a witness. In Glanville's time the rule was recognised that, if a fugitive villain lived away from his lord and master for a year and a day in a privileged town, and were received into a guild as a citizen, he was freed (t). The status of children was governed by the rule of the Civil Law, according to which the status of the mother determined that of the child. The son of a freeman and a bondwoman became a villain. If a freeman married a bondwoman, he lost his privileges and remained, so long as the union lasted, in the position of a villain (u). Bracton, who wrote about 1259, describes villenage at considerable length, and paints the legal condition of the serf as miserable. He was liable to uncertain burthens; he did not know in the evening what he should have to do in the morning; the lord might seize even the implements of husbandry (x); and whatever power of distraining on goods of villains for debts due from the masters. Stubbs' Select Charters, 160. Freeman's Norman Conquest, vol. v. p. 476, and Stubbs, vol. í. 428. Dean Hale in his Introduction to St. Paul's Domesday, p. xxxi., adduces reasons, by comparing the Rectitudines singularum personarum (placed in order of time between the laws of Cnut and Edward the Confessor) with the Exchequer Domesday and the records of the manors of St. Paul's, for thinking that the relations between the owners of the soil and manorial tenants remained almost unchanged for centuries. (8) Lib. 5, c.5. “The effect of manumission was simply to relieve the slave from the bondage of the master. It did not place him upon the footing of a free citizen." To be made free needed the act of the whole body. Cobb on Slavery, cxxvi., and Kemble, i. 218. (t) A similar provision is found in the laws of William the Conqueror ; see, however, Mr. Stubbs' preface to Hoveden's Chronicles, 2, xxxviii. where grounds for doubting the genuineness of the provision are shown. Von Maurer (Städtverfassung, i. 132, and 395) shows that the rule existed in many German cities. It is curious to find this provision in force in towns so remote as Berne and Newcastleupon-Tyne. (u) In the laws of Henry II., we read Semper a patre non a matre generationis ordo texitur. Cowell, who wrote in the reign of James I., says, Hodic tamen soboles quæ per liberum ex nativa in matrimonio suscitatur libera est. (x) Compare Magna Charta, art. 9. In the Mirror, ii. 28, which is usually he earned became the property of the master. In Bracton's treatise, however, signs are not wanting that the actual lot of the villain was better than the theory of the law would imply. The subject of donations to serfs, the circumstances in which lords lost their rights, and many possible modes of emancipation are discussed; and the fact that the life and limbs of the serf were under royal protection is recognised. In the treatise by Britton, who wrote about the end of the thirteenth or beginning of the fourteenth century, other traces of improvement are visible. The "exception of villenage" holds good only between the lord and villain, and that, too, only when the former has been in recent possession of the latter. "Whoever," says Britton, "kills his villain shall bear the same judgment as if he had killed a freeman (y)." The rule of descent is not identical with that of the Roman law; a child is free or not according to the condition of the father (2). The fact that Britton mentions many more modes of emancipation than Glanville is not without significance. Whatever may have been the lot of villains immediately after the Conquest, the harsh theory of the law soon ceased to correspond with their actual condition. It no doubt varied in each manor; it would greatly depend on the seneschal, the bailiff, and the præpositus who directed the labours of the servile tenants. The obligation to give thac et thol, auxilium et merchet, et in obitu melius catallum might be made an instrument of oppression. But when we read of villains in the fourteenth century employing labourers of their own (a), and when we are told of a serf who made a grant of a considerable area of land (b), we see how far removed a bondman might be from his condition as described by Bracton. If the services exacted were hard, they had become for the most part fixed. They were generally assigned to the reign of Edward II., the distinction between slaves and villains is clearly drawn. (y) 1. c. 32. (z) Ibid. (a) Bond's Introduction to Chronicon de Melsa, 3 L. ii. (b) See Pearson's England, vol. i. 595. |