Part 6

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.]