Part 5

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.]