I the heading of this chapter may not be misunderstood. It would be difficult to speak of free peasantry in the modern sense at the time with which we are now dealing. Some kind or form of dependence often clings even to those who occupy the best place among villagers as recognised free tenants, and in most cases we have a very strong infusion of subjection in the life of otherwise privileged peasants. But if we keep to the main distinctions, and to the contrast which the authorities themselves draw between the component elements of the peasant class, its great bulk will arrange itself into two groups: the larger one will consist of those ordinarily designated as villains; a smaller, but by no means an insignificant or scanty one, will present itself as free, more or less protected by law, and more or less independent of the bidding of the lord and his steward. There is no break between the two groups; one status runs continuously into the other, and it may be difficult to distinguish between the intermediate shades; but the fundamental difference of conception is clearly noticeable as soon as we come to look at the whole, and it is not only noticeable to us but was noticed by the contemporary documents.
In very many cases we are actually enabled to see how freedom and legal security gradually emerge from subjection. One of the great movements in the social life of the thirteenth and fourteenth centuries is the movement towards the commutation of services for money rents. In every survey we find a certain number of persons who now pay money, whereas they used to do work, and who have thus emancipated themselves from the most onerous form of subjection. In the older documents it is commonly specified that the lord may revert to the old system, give up the rents, and enforce the services. In later documents this provision disappears, having become obsolete, and there is only a mention of certain sums of money. The whole process, which has left such distinct traces in the authorities, is easily explained by England's economic condition at that time. Two important factors co-operated to give the country an exceptionally privileged position. England was the only country in Europe with a firmly constituted government. The Norman Conquest had powerfully worked in the sense of social feudalism, but it had arrested the disruptive tendencies of political feudalism. The opposition between the two races, the necessity for both to keep together, the complexity of political questions which arose from conquest and settlement on the one hand, from the intercourse with Normandy and France on the other, -- all these agencies working together account for a remarkable intensity of action on the part of the centripetal forces of society, if I may use the expression: there was in England a constant tendency towards the concentration and organisation of political power in sharp contrast with the rest of Europe where the state had fallen a prey to local and private interests. One of the external results of such a condition was the growth of a royal power supported by the sympathy of the lower English-born classes, but arranging society by the help of Norman principles of fiscal administration. Not less momentous was the formation of an aristocracy which was compelled to act as a class instead of acting as a mere collection of individuals each striving for his own particular advantage; as a class it had to reckon with, and sometimes represent, the interests and requirements of other classes. In all these respects England was much ahead of Germany, where tribal divisions were more powerful than national unity, and the state had to form itself on feudal foundations in opposition to a cosmopolitan Imperial power; it was not less in advance of France, where the work of unification, egotistically undertaken by the king, had hardly begun to get the upper hand in its conflict with local dynasties; not less in advance of Italy, so well situated for economic progress, but politically wrecked by its unhappy connexion with Germany, the anti-national influence of the Papacy, and the one-sided development of municipal institutions. By reason of its political advantages England had the start of other European countries by a whole century and even by two centuries. The 'silver streak' acted already as a protection against foreign inr, the existence of a central power insured civil order, intercourse between the different parts of the island opened outlets to trade, and reacted favourably on the exchange of commodities and the circulation of money.
Another set of causes operated in close alliance with these political influences. The position of England in relation to the European market was from the first an advantageous one. besides the natural development of seafaring pursuits which lead to international trade, and always tend to quicken the economic progress, there were two special reasons to account for a speedy movement in the new direction: the woollen trade with Flanders begins to rise in the twelfth century, and this is the most important commercial feature in the life of North-Western Europe; then again, the possession of Normandy and the occupation of Aquitaine and other provinces of France by the English opened markets and r for a very brisk commercial intercourse with the Continent. As an outcome of all these political and economical conditions we find the England of the thirteenth century undoubtedly moving from natural husbandry to the money-system.
The consequences are to be seen on every side in the arrangements of state and society. The means of government were modified by the economic change. Hired troops took the place of feudal levies; kings easily renounced the military service of their tenants and took scutages which give them the means of keeping submissive and well-drilled soldiers. The same process took place all through the country on the land of secular and ecclesiastical lords. They all preferred taking money which is so readily spent and so easy to keep, which may transform itself equally well into gorgeous pageants and into capital for carrying on work, instead of exacting old-fashioned unwieldly ploughings and reapings or equally clumsy rents in kind.
On the other hand, the peasants were equally anxious to get out of the customary system: through its organisation of labour it involved necessarily many annoyances, petty exactions and coercion; it involved a great waste of time and energy. The landlord gained by the change, because he received an economic instrument of greater efficiency; the peasant gained because he got rid of personal subjection to control; both gained; for a whole system of administration, a whole class of administrators, stewards, bailiffs, reeves, a whole mass of cumbrous accounts and archaic procedure became unnecessary.
In reality the peasantry gained much more than the lord. Just because money rents displaced the ploughings and reapings very gradually, they assumed the most important characteristic of these latter -- their customary uniformity; tradition kept them at a certain level which it was very difficult to disturb, even when the interests of the lord and the conditions of the time had altered a great deal. Prices fluctuate and rise gradually, the buying strength of money gets lowered little by little, but customary rents remain much the same as they were before. Thus in process of time the balance gets altered for the benefit of the rent payer. I do not mean to say that such views and such facts were in full operation from the very beginning: one of the chief reasons for holding the Glastonbury inquest of 1189 was the wish to ascertain whether the rents actually corresponded to the value of the plots, and to make the necessary modifications. But such fresh assessments were very rare, it was difficult to carry them into practice, and the general tendency was distinctly towards a stability of customary rents.
The whole process has a social and not merely an economical meaning. Commutation, even when it was restricted to agricultural services, certainly tended to weaken the hold of the lord on his men. Personal interference was excluded by it, the manorial relation resolved itself into a practice of paying certain dues once or several times a year; the peasant ceased to be a tool in the husbandry arrangements of his master. The change made itself especially felt when the commutation took place in regard to entire villages: the new arrangement developed into the custom of a locality, and gathered strength by the number of individuals concerned in it, and the cohesion of the group. In order not to lose all power in such a township, the lords usually reserved some cases for special interference and stipulated that some services should still be rendered in kind.
Again, the conversion of services into rents did not always present itself merely in the form just described: it was not always effected by the mere will of the lord, without any legally binding acts. Commutation gave rise to actual agreements which came more or less under the notice of the law. We constantly find in the Hundred Rolls and in the Cartularies that villains are holding land by written covenant. In this case they always pay rent. Sometimes a villain, or a whole township, gets emancipated from certain duties by charter, and the infringement of such an instrument would have given the villains a standing ground for pleading against the lord. it happened from time to time that bondmen took advantage of such deeds to claim their liberty, and to prove that the lord had entered into agreement with them as with free people. To prevent such misconstruction the lord very often guards expressly against it, and inserts a provision to say that the agreement is not to be construed against his rights and in favour of personal freedom.
The influence of commutation makes itself felt in the growth of a number of social groups which arrange themselves between the free and the servile tenantry without fitting exactly into either class. Our manorial authorities often mention mol-land and mol-men. The description of their obligations always points one way: they are rent-paying tenants who may be bound to some extra work, but who are very definitely distinguished from the 'custumarii,' the great mass of peasants who render labour services. Kentish documents use 'mala' or 'mal' for a particular species of rent, and explain the term as a payment in commutation of servile customs. In this sense it is sometimes opposed to gafol or gable -- the old Saxon rent in money or in kind, this last being considered as having been laid on the holding from all time, and not as the result of a commutation. Etymologically there is reason to believe that the term mal is of Danish origin, and the meaning has been kept in practice by the Scotch dialect. What immediately concerns our present purpose is, that the word mal-men or mol-men is commonly used in the feudal period for villains who have been released from most of their services by the lord on condition of paying certain rents. Legally they ought to remain in their former condition, because no formal emancipation has taken place; but the economical change reacts on their status, and the manorial documents show clearly how the whole class gradually gathers importance and obtains a firmer footing than was strictly consistent with its servile origin.
In the Bury St. Edmund's case just quoted in a footnote the fundamental principle of servility is stated emphatically, but the statement was occasioned by gradual encroachments on the part of the molmen, who were evidently becoming hardly distinguishable from freeholders. And in many Cartularies we find these molmen actually enumerated with the freeholders, a very striking fact, because the clear interest of the lord was to keep the two classes asunder, and the process of making a manorial 'extent' and classifying the tenants must have been under his control. As a matter of fact, the village juries were independent enough to make their presentments more in accordance with custom than in accordance with the lord's interests. In a transcript of a register of the priory of Eye in Suffolk, which seems to have been compiled at the time of Edward I, the molmen are distinguished from villains in a very remarkable manner as regards the rule of inheritance, Borough English being considered as the servile mode, while primogeniture is restricted to those holding mol-land. Borough English was very widely held in medieval England to imply servile occupation of land, and the privilege enjoyed by molmen in this case shows that they were actually rising above the general condition of villainage, the economical peculiarities of their position affording a stepping-stone, as it were, towards the improvement of their legal status. It is especially to be noticed, that in this instance we have to reckon with a material difference of custom, and not merely with a vacillating terminology or a general and indefinite improvement in position. An interesting attempt at an accurate classification of this and other kinds of tenantry is displayed by an inquisition of 19 Edward I preserved at the Record Office. The following subdivisions are enumerated therein: -- Liberi tenentes per cartam. Liberi tenentes qui vocantur fresokemen. Sokemanni qui vocantur molmen. Custumarii qui vocantur werkmen. Consuetudinarii tenentes 4 acras terre. Consuetudinarii tenentes 2 acras terre.
The difference between molmen and workmen lies, of course, in the fact that the first pay rent and the second perform week-work. But what is more, the molmen are ranged among the sokemen, and this supposes a certainty of tenure and service not enjoyed by the villains. In this way the intermediate class, though of servile origin, connects itself with the free tenantry.
The same group appears in manorial documents under the name of censuarii. Both terms interchange, and we find the same fluctuation between free and servile condition in regard to the censuarii as in regard to molmen. The thirteenth-century extent of the manor of Broughton, belonging to the Abbey of Ramsey in Huntingdonshire, when compared with Domesday, shows clearly the origin of the group and the progress which the peasantry had made in two hundred years. The Domesday description mentions ten sokemen and twenty villains; the thirteenth-century Cartulary speaks in one place of liberi and villani, sets out the services due from the latter, but says that the Abbot can 'ponere omnia opera ad censum;' while in another place it speaks as though the whole were held by liberi et censuarii.
A similar condition is indicated by the term gavelmanni, which occurs sometimes, although not so often as either of the designations just mentioned. It comes evidently from gafol or gafel, and applies to rent-paying people. It ought to be noticed, however, that if we follow the distinction suggested by the Kentish documents, there would be an important difference in the meaning. Rent need not always appear as a result of commutation; it may be an original incident of the tenure, and there are facts enough to show that lands were held by rent in opposition to service even in early Saxon time. Should mal be taken as a commutation rent, and gafol strictly in the sense of original rent, the gavelmen would present an interesting variation of social grouping as the progeny of ancient rent-holding peasantry. I do not think, however, that we are entitled to press terminological distinctions so closely in the feudal period, and I should never enter a protest against the assumption that most gavelmen were distinguished from molmen only by name, and in fact originated in the same process of commutation. But, granting this, we have to grant something else. Vice versa, it is very probable indeed that the groups of censuarii and molmen are not to be taken exclusively as the outcome of commutation. If gafol gets to be rather indistinct in its meaning, so does mal, and as to census, there is nothing to show whether it arises in consequence of commutation or of original agreement. And so the Kentish distinction, even if not carried out systematically, opens a prospect which may modify considerably the characteristic of the status on which I have been insisting till now. Commutation was undoubtedly a most powerful agency in the process of emancipation; our authorities are very ready to supply us with material in regard to its working, and I do not think that anybody will dispute the intimate connexion between the social divisions under discussion and the transition from labour services to rent. Yet a money rent need not be in every case the result of a commutation of labour services, although such may be its origin in most cases. We have at least to admit the possibility and probability of another pedigree of rent-paying peasants. They may come from an old stock of people whose immemorial custom has been to pay rent in money or in kind, and who have always remained more or less free from base labour. This we should have to consider as at all events a theoretic possibility, even if we restricted our study to the terminology connected with rent; though it would hardly give sufficient footing for definite conclusions. But there are groups among the peasantry whose history is less doubtful.
There are at the British Museum two most curious Surveys of the possessions of Ely Minster, one drawn up in 1222 and the other in 1277, In some of the manors described we find tenants called 'hundredarii.' Their duties vary a good deal, but the peculiarity which groups them into a special division and gives them their name is the suit of court they owe to the hundred. And although the name does not occur often even in the Ely Surveys, and is very rare indeed elsewhere, the thing is quite common. The village has to be represented in the hundred court either by the lord of the manor, or by the steward, or by the reeve, the priest, and four men. The same people have to attend the County Court and to meet the King's justices when they are holding an eyre. It is not a necessary consequence, of course, that certain particular holdings should be burdened with the special duty of sending representatives to these meetings, but it is quite in keeping with the general tendency of the time that it should be so; and indeed one finds everywhere that some of the tenants, even if not called 'hundredarii,' are singled out from the rest to 'defend' the township at hundred and shire moots. They are exempted from other services in regard to this 'external,' this 'forinsec' duty, which was considered as by no means a light one.
And now as to their status. The obligation to send the reeve and four men is enforced all through England, and for this reason it is prima facie impossible that it should be performed everywhere by freeholders in the usual sense of the word. There can be no doubt that in many, if not in most, places the feudal organisation of society afforded little room for a considerable class of free-holding peasants or yeomen. If every township in the realm had to attend particular judicial meetings, to perform service for the king, by means of five representatives, these could not but be selected largely from among the villain class. The part played by these representatives in the Courts was entirely in keeping with their subordinate position. They were not reckoned among the 'free and lawful' men acting as judges or assessors and deciding the questions at issue. They had only to make presentments and to give testimony on oath when required to do so. The opposition is a very marked one, and speaks of itself against the assumption that the five men from the township were on an equal standing with the freeholders. Again, four of these five were in many cases especially bound by their tenure to attend the meetings, and the reeve came by virtue of his office, but he is named first, and it does not seem likely that the leader should be considered as of lower degree than the followers. Now the obligation to serve as reeve was taken as a mark of villainage. All these facts lead one forcibly to the conclusion that the hundredors of our documents represent the village people at large, and the villains first of all, because this class was most numerous in the village. This does not mean, of course, that they were all personally unfree: we know already, that the law of tenure was of more importance in such questions than personal status. It does not even mean that the hundredors were necessarily holding in villainage: small freeholders may have appeared among them. But the institution could not rest on the basis of legal freehold if it was to represent the great bulk of the peasantry in the townships.
This seems obvious and definite enough, but our inquiry would be incomplete and misleading if it were to stop here. We have in this instance one of those curious contradictions between two well-established sets of facts which are especially precious to the investigator because they lead him while seeking their solution to inferences far beyond the material under immediate examination. In one sense the reeve and the four men, the hundredors, seem villains and not freeholders. In another they seem freeholders and not villains. Their tenure by the 'sergeanty' of attending hundreds and shires ranks again and again with freehold and in opposition to base tenure. Originally the four men were made to go not only with the reeve but with the priest; and if the reeve was considered in feudal times as unfree, the priest, the 'mass-thane,' was always considered as free. It is to be noticed that the attendance of the priest fell into abeyance in process of time, but that it was not less necessary for the representation of the township according to the ancient constitution of the hundred than the attendance of the reeve. This last fact is of great importance because it excludes an explanation which would otherwise look plausible enough. Does it not seem at first sight that the case of the hundredors is simply a case of exemption and exactly on a parallel with the commutation of servile obligations for money? We have seen that villains discharged from the most onerous and opprobrious duties of their class rise at once in social standing, and mix up with the smaller freeholders. Hundredors are relieved from these same base services in order that they may perform their special work, and this may possibly be taken as the origin of their freedom. Should we look at the facts in this way, the classification of this class of tenants as free would proceed from a lax use of the term and their privileges would have to be regarded as an innovation. The presence of the priest warns us that we have to reckon in the case with a survival, with an element of tradition and not of mere innovation. And it is not only the presence of the priest that points this way.
At first sight the line seems drawn very sharply between the reeve and the four men on the one hand, and the freehold suitors of the hundred court on the other: while these last have to judge and to decide, the first only make presentments. But the distinction, though very clear in later times, is by no means to be relied upon even in the thirteenth century. In Britton's account of the sheriff's tourn the two bodies, though provided with different functions, are taken as constituted from the same class: 'the free landowners of the hundred are summoned and the first step is to cause twelve of them to swear that they will make presentment according to the articles. Afterwards the rest shall be sworn by dozens and by townships, that they will make lawful presentment to the first twelve jurors.' The wording of the passage certainly leads one to suppose that both sets of jurors are taken from the freeholder class, and the difference only lies in the fact that some are selected to act as individuals, and the rest to do so by representation. The Assize of Clarendon, which Mr Maitland has shown to be at the origin of the sheriff's tourn, will only strengthen the inference that the two bodies were intended to belong to the same free class: the inquiry, says the Assize, shall be made by twelve of the most lawful men of the county, and by four of the most lawful men of every township. What is there in these words to show that the two sets were to be taken from different classes? And does not the expression 'lawful,' extending to both sets, point to people who are 'worthy of their law' that is to free men? The Assize of Clarendon and the constitution of the tourn are especially interesting because they give a new bearing to an old institution: both divisions of the population which they have in view appear in the ordinary hundred and county court, and in the 'law day' of the 'great' hundred instituted for the view of frankpledge. In the ordinary court the lord, his steward, and the reeve, priest, and four men, interchange, according to the clear statement of Leg. Henrici I. c. 7, that is to say, the vill is to be represented either by the lord, or by his steward, or again by the six men just mentioned. They are not called out as representing different classes and interests, but as representing the same territorial unity. If the landlord does not attend personally or by his personal representative, the steward, then six men from the township attend in his place. The question arises naturally, where is one to look for the small freeholders in the enactment? However much we may restrict their probable number, their existence cannot be simply denied or disregarded. It does not seem likely that they were treated as landlords (terrarum domini), and one can hardly escape the inference that they are included in the population of the township, which appears through the medium of the six hundredors: another hint that the class division underlying the whole structure did not coincide with the feudal opposition between freeholder and villain. Again, in the great hundred for the view of frankpledge, which is distinguished from the ordinary hundred by fuller attendance, and not by any fundamental difference in constitution, all men are to appear who are 'free and worthy of their wer and their wite:' this expression seems an equivalent to the 'free and lawful' men of other cases, and at the same time it includes distinctly the great bulk of the villain population as personally free.
I have not been able, in the present instance, to keep clear of the evidence belonging to the intermediate period between the Saxon and the feudal arrangements of society; this deviation from the general rule, according to which such evidence is to be discussed separately and in connexion with the Conquest, was unavoidable in our case, because it is only in the light of the laws of Henry I that some important feudal facts can be understood. in a trial as to suit of court between the Abbot of Glastonbury and two lay lords, the defendants plead that they are bound to appear at the Abbot's hundred court personally or by attorney only on the two law-days, whereas for the judgment of thieves their freemen, their reeves and ministers have to attend in order to take part in the judgment. It is clearly a case of substitution, like the one mentioned in Leg. Henrici, c. 7, and the point is, that the representatives of the fee are designated as reeves and freemen. Altogether the two contradictory aspects in which the hundredors are made to appear can hardly be explained otherwise than on the assumption of a fluctuation between the conception of the hundred as of an assembly of freemen, and its treatment under the influence of feudal notions as to social divisions. In one sense the hundredors are villains: they come from the vill, represent the bulk of its population, which consists of villains, and are gradually put on a different footing from the greater people present. In another sense they are free men, and even treated as freeholders, because they form part of a communal institution intended to include the free class and to exclude the servile class. If society had been arranged consistently on the feudal basis, there would have been no room for the representation of the vill instead of the manor, for the representation of the vill now by the lord and now by a deputation of peasants, for a terminology which appears to confuse or else to neglect the distinction between free and servile holding. As it is, the intricate constitution of the hundred, although largely modified and differentiated by later law, although cut up as it were by the feudal principle of territorial service, looks still in the main as an organisation based on the freedom of the mass of the people. The free people had to attend virtually, if not actually, and a series of contradictions sprang up from the attempt to apply this principle to a legal state which had almost eliminated the notion of freedom in its treatment of peasantry on villain land. As in these feudal relations all stress lay on tenure and not on status, the manorial documents seem to raise the hundredors almost or quite to the rank of freeholders, although in strict law they may have been villains. The net results seem to be: (1) that the administrative constitution of hundred and county is derived from a social system which did not recognise the feudal opposition between freeholder and villain; (2) that we must look upon feudal villainage as representing to a large extent a population originally free; (3) that this original freedom was not simply one of personal status, but actually influenced the conception of tenure even in later days.
If in manorial documents these 'hundredors' occupy as it were an ambiguous position, the same may be said of another and a very important class -- the socmen. The socage tenure has had a very curious terminological history. Everybody knows that it appears in Domesday as a local peculiarity of Danish districts; in modern law it came to be a general name for any freehold that was neither knight service, frankalmoign, nor grand sergeanty. It became in fact the normal and typical free tenure, and as such it was treated by the Act of Charles II abolishing military tenure. Long before this -- even in the thirteenth century -- 'free socage' was the name of a freehold tenure fully protected by the King's Courts. Very great men occasionally held land in free socage (per liberum socagium); they even held of the King in chief by free socage, and the tenure had many advantages, since it was free from the burdensome incidents of wardship and marriage. But no one would have called these men socmen (sokemanni, socomanni). On the other hand, the socmen, free socmen, were to he found all over England and not in the Danish country only. It is of the tenure of these socmen that we have to speak now. In a trial of Edward the First's time the counsel distinguish three manners of persons -- free men, villains, and socmen. These last are said to occupy an intermediate position, because they are as statu liberi in regard to their lords. The passage occurs in a case relating to ancient demesne, but the statement is made quite bry, and the term 'socmen' is used without any qualification. As there were many socmen outside the King's possessions on the land of lay and spiritual lords, such usage may be taken as proof that the position of all these people was more or less identical. And so in our inquiry as to the characteristic traits of socage generally we may start from the ancient demesne. Further, we see that the socman's tenure is distinguished from free tenure, socmen from freeholders. In the law of the time the free but non-military tenure has to be characterised not merely as socage, but as free socage: this fact will give us a second clue in analysing the condition.
There are two leading features in ancient demesne socage: it is certain in tenure and service, and it is held by the custom of the manor and not by feoffment. The certainty of the tenure severs the class of socmen from the villains, and is to be found as well in the case of socmen outside the crown demesne as in the case of socmen on the crown demesne. What is to be said of the second. trait? It seems especially worthy of notice, because it cannot be said to belong to freehold generally. As to its existence on ancient demesne land I have already had occasion to speak, and it can hardly be doubted. I will just recall to the reader's mind the fundamental facts: that the 'little writ of right' was to insure justice according to the custom of the manor, and that our documents distinguish in as many words between the customary admittance of the socman and the feoffment of the freeholder. This means, that in case of litigation the one had warranty and charter to lean upon, while the other had to appeal to the communal testimony of his fellow-suitors in the court of the manor, and in later days to an entry on the court-roll. Freehold appeared as chartered land (land), while socage was in truth copyhold secured by communal custom. The necessary surrender and admittance was performed in open court, and the presence of fellow-tenants was as much a requisite of it as the action of the lord or his steward.
If we look now to the socmen outside the ancient demesne, we shall find their condition so closely similar, that the documents constantly confuse them with the tenants of the ancient demesne. The free men under soke in the east of England have best kept the tradition, but even their right is often treated as a mere variation of ancient demesne. For this reason we should be fairly entitled, I think, to extend to them the notion of customary freehold. There is direct evidence in this respect. In extents of manors socmen are often distinguished from freeholders. True, as already said, that in the king's courts 'free socage' came to be regarded as one of the freehold tenures, and as such (when not on the ancient demesne) was protected by the same actions which protected knight-service and frankalmoign; but we have only here another proof of the imperfect harmony between legal theory and manorial administration. What serves in the manorial documents to distinguish the 'socman' from the 'freeholder' is the fact that the former holds without charter. We are naturally led to consider him as holding, at least originally, by ancient custom and communal testimony in the same sense as the socmen of ancient demesne. In most cases only the negative side, namely the absence of a charter, is mentioned, but there are entries which disclose the positive side, and speak of tenants or even free tenants holding without charter by ancient tenure. It is to be added, that we find such people in central and western counties, that is outside of the Danelagh. In Domesday their predecessors were entered as villains, but their tenure is nevertheless not only a free but an ancient one.
It must also be added that it is not only free socmen that one finds outside the ancient demesne; bond socmen are mentioned as well. Now this seems strange at first sight, because the usual and settled terminology treats villain socage as a peculiarity of ancient demesne, My notion is that it is not 'bond' that qualities the 'socmen,' but vice versa. To put it in a different way, the documents had to name a class which held by certain custom, although by base service, and they added the 'socman' to qualify the 'bond' or the 'villain.'
Two cases from the Hundred Rolls may serve as an illustration of this not unimportant point. The vill of Soham in Cambridgeshire was owned in 1279 partly by the King, partly by the Earl Marshall, and partly by the Bishop of Ely. There are two socmen holding from the King thirty acres each, fourteen socmen holding fifteen acres each, and twenty-six 'toftarii' possessed of small plots. No villains are mentioned, but the socmen are designated on the margin in a more definite way as bond socmen. The manor had been in the possession of the Crown at the time of the Conquest, and it is to be noticed, to begin with, that the chief population of the part which remained with the King appears as socmen -- a good illustration of the principle that the special status did not originate when the manor was granted out by the Crown. The sixteen peasants first mentioned are holders of virgates and half-virgates, and form as it were the original stock of the tenantry -- it would be impossible to regard them as a later adjunct to the village. Their status is not a result of commutation -- they are still performing agricultural work, and therefore bond socmen. The Domesday Survey speaks only of villains and 'bordarii,' and it is quite clear that it calls villains the predecessors of the 'bond socmen' of the Hundred Rolls. And now let us examine the portion of the manor which had got into the hands of the Earl Marshall. We find there several free socmen whose holdings are quite irregular in size: they pay rent, and are exempted from agricultural work. Then come five bond socmen, holding thirty acres each, and nine bonds holding fifteen acres each: all these perform the same services as the corresponding people of the King's portion. And lastly come twenty-two tofters. Two facts are especially worth notice: the free socman appears by the side of the bond socman, and the opposition between them reduces itself to a difference between rent-paying people and labourers; the holdings of the rent-payers are broken up into irregular plots, while the labourers still remain bound up by the system of equalised portions. The second significant fact is, that the term 'socman,' which has evidently to be applied to the whole population except the tofters, has dropped out in regard to the half-virgate tenants of the Earl Marshall. If we had only the fragment relating to his nine bondmen, we might conclude perhaps that there was no certain tenure in the manor. The inference would have been false, but a good many inferences as to the social standing of the peasantry are based on no better foundation. In any case the most important part of the population of Soham, as far as it belonged to the king and to the earl, consisted of socmen who at the same time are called bondmen, and were called villains in Domesday.
Soham is ancient demesne. Let us now take Crowmarsh in Oxfordshire. Two-thirds of it belonged to the Earl of Oxford in 1279, and one-third to the Lord de Valence. At the time of the Domesday Survey it was in the hands of Walter Giffard, and therefore not ancient demesne. On the land of the Earl of Oxford we find in 1279 nine servi socomanni holding six virgates, there are a few cotters and a few free tenants besides; the remaining third is occupied by two 'tenentes per servicium socomannorum,' and by a certain number of cotters and free tenants. It can hardly be doubted that the opposition between servi and liberi is not based on the certainty of the tenure; the socmen hold as securely as the free tenants, but they are labourers, while these latter are exempted from the agricultural work of the village. The terms are used in the same way as the 'terra libera' and the 'terra operabilis' of the Glastonbury inquest.
I need not say that the socmen of ancient demesne, privileged villains as Bracton calls them, are sometimes subjected to very burdensome services and duties. Merchet is very common among them; it even happens that they have to fine for it at the will of the lord. But all the incidents of base tenure are to be found also outside the ancient demesne in connexion with the class under discussion. If we take the merchet we shall find that at Magna Tywa, Oxon, it is customary to give the steward a sword and four pence for licence to give away one's daughter within twenty miles in the neighbourhood; in Haneberg, Oxon, a spear and four pence are given in payment. The socmen of Peterborough Abbey have to pay five shillings and four pence under the name of merchet as a fine for incontinence (the legerwite properly so-called), and there is besides a marriage payment (redempcio sanguinis) equal for socmen and villains. The same payment occurs in the land of Spalding Priory, Lincoln. The same fact strikes us in regard to tallage and aids, i.e. the taxes which the lord had a right to raise from his subjects. In Stoke Basset, Oxon, the socmen are placed in this respect on the same footing with the villains. The Spalding Cartulary adds that their wainage is safe in any case. On the lands of this priory the classes of the peasantry are generally very near to each other, so that incidents and terms often get confused.
And not only socmen have to bear such impositions: we find them constantly in all shapes and gradations in connection with free tenantry. The small freeholder often takes part in rural work, sometimes he has to act as a kind of overseer, and in any case this base labour would not degrade him from his position. Already in Bracton's day the learned thought that the term 'socage' was etymologically connected with the duty of ploughing: -- a curious proof both of the rapidity with which past history had become unintelligible, and of the perfect compatibility of socage with labour services. Merchet, heriot, and tallage occur even more often. All such exactions testify to the fact that the conceptions of feudal law as to the servile character of particular services and payments were in a great measure artificial. Tallage, even arbitrary tallage, was but a tax after all, and did not detract from personal freedom or free tenure in this sense. Then heriot often occurs among free people in the old Saxon form of a surrender of horse and arms as well as in that of the best ox. Merchet is especially interesting as illustrating the fusion of different duties into one. It is the base payment par excellence, and often used in manorial documents as a means to draw the line between free and unfree men. Nevertheless free tenants are very often found to pay it. In most cases they have only to fine in the case when their daughters leave the manor, and this, of course, has nothing degrading in it: the payment is made because the lord loses all claim as to the progeny of the woman who has left his dominion. But there is evidence besides to show that free tenants had often to pay in such a case to the hundred, and the lords had not always succeeded in dispossessing the hundred. Such a fine probably developed out of a payment to the tribe or to a territorial community in the case when a woman severed herself from it. It had nothing servile in its origin. And still, if the documents had not casually mentioned these instances, we should have been left without direct evidence as to a difference of origin in regard to merchet or gersum. Is it not fair to ask, whether the merchet of the villains themselves may not in some instances have come from a customary recompense paid originally to the community of the township into the rights of which the lord has entered? However this may be, one fact can certainly not be disputed: men entirely free in status and tenure were sometimes subjected to an exaction which both public opinion and legal theory considered as a badge of servitude.
The passage from one great class of society to the other was rendered easy in this way by the variety of combinations in which the distinguishing features of both classes appear. No wonder that we hear constantly of oppression which tended to substitute one form of subjection for another, and thus to lower the social standing of intermediate groups. The free socmen of Swaffham Prior, in Cambridgeshire, complain that they are made to bind sheaves while they did not do it before; they used to pay thirty-two pence for licence to marry a daughter, and to give a twofold rent on entering an inheritance, and now the lord fines them at will. One of the tenants of the Bishop of Lincoln declares to the Hundred Roll Commissioners that his ancestors were free socmen and did service to the king for forty days at their own cost, whereas now the Bishop has appropriated the royal rights. The same grievances come from ancient demesne people. In Weston, Bedfordshire, the tenantry complain of new exactions on the part of the lord; in King's Ripton, Hunts, merchet is introduced which was never paid before; in Collecot, Berks, the lord has simply dispossessed the socmen. In some instances the claims of the peasantry may have been exaggerated, but I think that in all probability the chances were rather against the subjected people than for them, and their grievances are represented in our documents rather less than fairly.
In speaking of those classes of peasants who were by no means treated as serfs to be exploited at will, I must not omit to mention one group which appears, not as a horizontal layer spread over England, but in the vertical cut, as it were. I mean the Kentish gavelkind tenantry. The Domesday Survey speaks of the population of this county quite in the same way as of the people of neighbouring shires; villains form the great bulk of it, socmen are not even mentioned, and to judge by such indications, we have here plain serfdom occupying the whole territory of the county. On the other hand the law of the thirteenth century puts the social standing of Kentish men in the most decided opposition to that of the surrounding people. The 'Consuetudines Kanciae,' the well-known list of special Kentish customs, is reported to have been drawn up during an eyre of John of Berwick in the twenty-first year of Edward I. Be its origin what it may, we come across several of its rules at much earlier times, and they are always considered of immemorial custom. The basis of Kentish social law is the assumption that every man born in the county is entitled to be considered as personally free, and the Common Law Courts recognised the notion to the extent of admitting the assertion that a person was born in Kent as a reply against the 'exceptio villenagii.' The contrast with other counties did not stop there. The law of tenure was as different as the law of status. It would be needless to enumerate all the points set forth as Kentish custom. They show conclusively that the lord was anything but omnipotent in this county. Interference with the proprietary right of the peasantry is not even thought of the tenants may even alienate their plots freely; the lord can only claim the accustomed rents and services; if the tenants are negligent in performing work or making payments, distress and forfeiture are awarded by the manorial court according to carefully graduated forms; wardship in case of minority goes to the kin and not to the lord, and heiresses cannot be forced to marry against their wish. As a case of independence the Kentish custom is quite complete, and manorial documents show on every page that it was anything but a dead letter. The Rochester Custumal, the Black of St. Augustine, the customs of the Kentish possessions of Battle Abbey, the registers of Christ Church, Canterbury, all agree in showing the Kentish tenantry as a privileged one, both as to the quantity and as to the quality of their services. And so the great bulk of the Kentish peasantry actually appears in the same general position as the free socmen of other counties, and sometimes they are even called by this name.
What is more, the law of Kent thus favourable to the peasantry connects itself distinctly with the ancient customs of Saxon ceorls: the quaint old English proverbs enrolled in it look like sayings which have kept it in the memory of generations before it was transmitted to writing. The peculiarities in the treatment of wardship, of dower, of inheritance, appear not only in opposition to the feudal treatment of all these subjects, but in close connexion with old Saxon usage. It would be very wrong, however, to consider the whole population of Kent as living under one law. As in the case of ancient demesne, there were different classes on Kentish soil: tenants by knight-service and sergeanty on one side, villains on the other. The custom of Kent holds good only for the tenantry which would have been called gavelmen in other places. It is a custom of gavelkind, of the rent-paying peasantry, the peasantry which pays gafol, and as such stands in opposition to the usages of those who hold their land by fork and flail. The important point is that we may lay down as certain in this case what was only put forward hypothetically in the case of molmen and gavelmen in the rest of England: the freehold quality of rent-paying land is not due to commutation and innovation alone -- it proceeds from a pre-feudal classification of holdings which started from the contrast between rent and labour, and not from that between certain and uncertain tenure. Again, the law of gavelkind, although not extending over the whole of Kent, belongs to so important and numerous a portion of the population, that, as in the case of ancient demesne, it comes to be considered as the typical custom of the county, and attracts all other variations of local usage into its sphere of influence. The Custumal published among the Statutes speaks of the personal freedom of all Kentish-men, although it has to concern itself specially with the gavelkind tenantry. The notion of villainage gets gradually eliminated from the soil of the province, although it was by no means absent from it in the beginning.
Thirteenth-century law evidently makes the contrast between Kent and adjoining shires more sharp than it ought to have been, if all the varieties within the county were taken into account. But, if it was possible from the legal standpoint to draw a hard and fast line between Kent on one side, Sussex or Essex on the other, it is quite impossible, from the historian's point of view, to grant that social condition has developed in adjoining places out of entirely different elements, without gradations and intermediate shades. Is there the slightest doubt that the generalising jurisprudence of the thirteenth century went much too far in one direction, the generalising scribes of the eleventh century having gone too far in the other? Domesday does not recognise any substantial difference between the state of Kent and that of Sussex; the courts of the thirteenth century admitted a complete diversity of custom, and neither one nor the other extreme can be taken as a true description of reality. The importance of the custom of Kent can hardly be overrated: it shows conclusively what a mistake it would be to accept without criticism the usual generalising statement as to the different currents of social life in mediaeval England. It will hardly be doubted moreover, that the Kentish case proves that elements of freedom bequeathed by history but ignored by the Domesday Survey come to the fore in consequence of certain facts which remain more or less hidden from view and get recognised and protected in spite of feudalism. If so, can the silence of Domesday or the absence of legal protection in the thirteenth century stand as sufficient proof against the admission of freedom as an important constitutive element in the historical process leading to feudalism? Is it not more natural to infer that outside Kent there were kindred elements of freedom, kindred remnants of a free social order which never got adequate recognition in the Domesday terminology or left definite traces in the practice of the Royal courts?
One more subject remains to be touched upon, and it may be approached safely now that we have reviewed the several social groups on the border between freeholders and villains. It is this -- to what extent can the existence of a class of freeholders among the peasantry of feudal England be maintained? It has been made a test question in the controversy between the supporters of the free and those of the servile community, and it would seem, at first sight, on good ground. Stress has been laid on the fact, that such communities as are mentioned in Domesday and described in later documents are (if we set aside the Danish counties) almost entirely peopled by villains, that free tenants increase in number through the agency of commutation and grants of demesne land, whereas they are extremely few immediately after Domesday, and that in this way there can be no talk of free village communities this side of the Conquest. This view of the case may be considered as holding the field at the present moment: its chief argument has been briefly summarised by the sentence-the villains of Domesday are not the predecessors in title of later freeholders. I cannot help thinking that a good deal has to be modified in this estimate of the evidence. Without touching the subject in all its bearings, I may say at once that I do not see sufficient reason to follow the testimony of Domesday very closely as to names of classes. If we find in a place many free tenants mentioned in the Hundred Roll, and none but villains in Domesday, it would be wrong to infer that there were none but villains in the later sense at the time of the Survey, or that all the free tenements of the Hundred Rolls were of later creation than the Conquest. It would be especially dangerous to draw such an inference in a case where the freeholders of the thirteenth century are possessed of virgates, half-virgates, etc., and not of irregular plots of land. Such cases may possibly be explained by sweeping commutation, which emancipated the entire village at one stroke, instead of making way for the freehold by the gradual enfranchisement of plot after plot. But it is not likely that all the many instances can be referred to such sweeping emancipation. In the light of Kentish evidence, of free and villain socage, it is at least probable that the thirteenth-century freeholders were originally customary freeholders entered as villains in Domesday, and rising to freedom again in spite of the influence of feudalism. Such an assumption, even if only possible and hypothetical, would open the way for further proof and investigation on the lines of a decline of free village communities, instead of imposing a peremptory termination of the whole inquiry for the period after the Conquest. If the Domesday villains are in no case predecessors in title of freeholders, this fact would go a long way to establish the serfdom of the village community for all the period after the Conquest, and we should have to rely only on earlier evidence to show anything else. Our case would be a hard one, because the earlier evidence is scanty, scattered, obscure, and one-sided, But if the villains of Domesday may be taken to include customary freeholders, then we may try to illustrate our conceptions of the early free village by traits drawn from the life of the later period,
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