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.(1*) 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.'(2*) 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.'(3*) 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.'(4*) 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.
In calling him a colibertus the Norman clerks are giving him a foreign name, the etymological origin of which is very dark;(5*) 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.(6*) As to the Englishman upon whom this name is bestowed we know him to be a gebur, a boor, and we learn something of him from that mysterious document entitled 'Rectitudines Singularum Personarum.(7*) 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 hearthpenny; 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 theowman 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 hearthpenny, or Peter's penny, and the document that tells us this elsewhere mentions this payment as the mark of a free man.(8*) 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, a 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 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.(9*)
That great mass consists of some 108,500 villani, some 82,600 bordarii, and some 6,800 cotarii and coscets.(10*) 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.(11*) 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,(12*) but we cannot 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 cannot 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.(13*) 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.(14*)
The vagueness of distinctions such as these is well illustrated by the failure of the term. bordarius (and none is more prominent in Domesday to take firm root in this country.(15*) 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 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,(16*) 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;(17*) it shows us that the cotarius may have five acres, that is as much as many a bordarius,(18*) though he will often have no more than a croft.(19*) In Essex we hear of bordarii who held no arable land.(20*) 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.(21*) 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(22*)
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.(23*) Merely economic grades are essentially indefinite. Who could have defined a 'cottage' in the eleventh century? Who can define one now?(24*)
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 cannot 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.'
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.
Perhaps in the first place we shall think of what German writers call Freizugigkeit, the power to leave the master whom one has been serving. This power our ancestors would perhaps have called 'fare-worthiness.'(25*) 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:(26*) -- 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.(27*)
Then, again, in the law 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.(28*)
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 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.
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 bot 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.(29*) 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.(30*) 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.(31*) Domesday 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.(32*) 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.(33*) 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 freeman 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.(34*) 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.(35*) 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.(36*)
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.(37*) 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.(38*) 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 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.'(39*) But this freeholding implies a high degree of freedom, freedom of a kind that would have shocked the lawyers of a later age.
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 cannot, 'sell or give his land'; he can, or he cannot, 'sell or give it without the licence of his lord';(40*) he can sell it if he has first offered it to his lords; he can sell it on paying his lord two shillings.(41*) This seems very simple: -- the lord can, or (as the case may be) cannot, 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 cannot sell his land 'away from' his lord,(42*) he cannot give or sell it 'outside' a certain manor belonging to his lord,(43*) or, being the tenant of some church, he cannot 'separate' his land from the church,(44*) or give or sell it outside the church.(45*)
We have perhaps taken for granted under the influence of later law that an alienation will not impair the lord's rights, and will but give him a new instead of an old tenant. But it is not of any mere substitution such as this that these men of the eleventh century are thinking. They have it in their minds that the man may wish, may be able, utterly to withdraw his land from the sphere of his lord's rights. Therefore in many cases they note with some care that the man, though he can give or sell his land, cannot altogether put an end to such relation as has existed between this land and his lord. He can sell, but some of the lord's rights will 'remain,' in particular the lord's 'soke' over the land (for the present let us say his jurisdiction over the land) will remain.(46*) The purchaser will not of necessity become the 'man' of this lord, will not of necessity owe him any servitium or consuetudo, but will come under his jurisdiction.(47*) Interchanging however with these phrases,(48*) we have others which seem to point to the same set of distinctions, but to express them in terms of personal freedom. The man can, or else he cannot, withdraw from his lord, go away from his lord, withdraw from his lord's manor; he can or he cannot withdraw with his land; he can or cannot go to another lord, or go wherever he pleases.(49*) Some of these phrases will, if taken literally, seem to say that the persons of whom they are used are tied to the soil; they cannot leave the land, or the manor, or the soke. Probably in some of these cases the bond between man and lord is a perpetual bond of homage and fealty, and if the man breaks that bond by refusing the due obedience or putting himself under another lord, he is guilty of a wrong.(50*) But of pursuing him and capturing him and reducing him to servitude there can be no talk. Many of these persons who 'cannot recede' are men of wealth and rank, of high rank that is recognized by law, they are king's thegns or the thegns of the churches, they are 'twelve-hundred men.'(51*) However, it is not the man's power to leave his lord so much as the power to leave his lord and take his land with him that these phrases bring to our notice; or rather the assumption is made that no one will want to leave his lord if he must also leave his land behind him. And then this power of taking land from this lord and bringing it under another lord is conceived as an index of personal freedom. Thus we read: 'These men were so free that they could go where they pleased.'(52*) and again, 'Four sokemen held this land, of whom three were free, while the fourth held one hide but could not give or sell it.'(53*) Not that no one is called a liber homo unless he has this power of 'receding' from his lord; far from it; all is a matter of degree; but the free man is freer if he can 'go to what lord he pleases,' and often enough the phrases 'X tenuit et liber homo fuit,' 'X tenuit libere,' 'X tenuit ut liber homo' seem to have no other meaning than this, that the occupant of the land enjoyed the liberty of taking it with him whithersoever he would. Therefore there is no tautology in saying that the holder of the land was a thegn and a free man, though of course there is a sense, there are many senses, in which every thegn is free.(54*) All this talk of the freedom that consists in choosing a lord and subjecting land to him may well puzzle us, for it puzzled the men of the twelfth century. The chronicler of Abingdon abbey had to explain that in the old days a free man could do strange things.(55*)
Comparisons may be instituted between the freedom of one free man and that of another: -- 'Five thegns held this land of Earl Edwin and could go with their land whither they would, and below them they had four soldiers, who were as free as themselves.'(56*) A high degree of liberty is marked when we are told that, 'The said men were so free that they could sell their land with soke and sake wherever they would.'(57*) But there are yet higher degrees of liberty. Of Worcestershire it is written, 'When the king goes upon a military expedition, if anyone who is summoned stays at home, then if he is so free a man that he has his sake and soke and can go whither he pleases with his land, he with all his land shall be in the king's mercy.'(58*) The free man is the freer if he has soke and sake, if he has jurisdiction over other men. Exceptional privileges, immunities from common burdens, are already regarded as 'liberties.' This is no new thing; often enough when the Anglo-Saxon land speak of freedom they mean privilege.
The idea of freedom is equally vague and elastic if, instead of applying it to men, we apply it to land or the tenure of land. Two bordarii are now holding a small plot; 'they themselves held it freely in King Edward's day.'(59*) Here no doubt there has been a fall; but how deep a fall we cannot be sure. To say that a man's land is free may imply far more freedom than freehold tenure implies in later times; it may imply that the bond between him and his lord, if indeed he has a lord, is of a purely personal character and hardly gives the lord any hold over the land.(60*) But this is not all. Perfect freedom is not attained so long as the land owes any single duty to the state. Often enough -- but exactly how often it were no easy task to tell -- the libera terra of our record is land that has been exempted even from the danegeld; it is highly privileged land.(61*) Let us remember that at the present day, though the definition of free land or freehold land has long ago been fixed, we still speak as though free land might become freer if it were 'free of land-tax and tithe rent-charge.'
If now we return to the villanus and deny that he is liber homo and deny also that he is holding freely, we shall be saying little and using the laxest of terms. There are half-a-dozen questions that we would fain ask about him, and there will be no harm in asking them, though Domesday is taciturn.
Is he free to quit his lord and his land, or can he be pursued and captured? No one word can be obtained in answer to this question. We can only say that in Henry II's day the ordinary peasant was regarded by the royal officials as ascriptitius; the land that he occupied was said to be part of his lord's demesne; his chattels were his lord's.(62*) But then this was conceived to be, at least in some degree, the result of the Norman Conquest and subsequent rebellions of the peasantry.(63*) To this we may add that in one of our sets of Leges, the French Leis of William the Conqueror, there are certain clauses which would be of great importance could we suppose that they had an authoritative origin, and which in any case are remarkable enough. The nativus who flies from the land on which he is born, let none retain him or his chattels; if the lords will not send back these men to their land the king's officers are to do it.(64*) On the other hand, the tillers of the soil are not to be worked beyond their proper rent; their lord may not remove them from their land so long as they perform their right services.(65*) Whether or no we suppose that in the writer's opinion the ordinary peasant was a nativus (of nativi Domesday has nothing to say) we still have law more favourable to the peasant than was the common law of Bracton's age: -- a tiller who does his accustomed service is not to be ejected; he is no tenant at will.
Hereafter we shall show that the English peasants did suffer by the substitution of French for English lords. But the question that we have asked, so urgent, so fundamental, as it may seem to us, is really one which, as the history of the Roman coloni might prove, can long remain unanswered. Men may become economically so dependent on their lords, on wealthy masters and creditors, that the legal question whether they can quit their service has no interest. Who wishes to leave his all and go forth a beggar into the world? On the whole we can find no evidence whatever that the men of the Confessor's day who were retrospectively called villani were tied to the soil. Certainly in Norman times the tradition was held that according to the old law the villanus might acquire five hides of land and so 'thrive to thegn-right.'(66*)
Our next question should be whether he was subject to seignorial justice. This is part of a much wider question that we must face hereafter, for seignorial justice should be treated as a whole. We must here anticipate a conclusion, the proof of which will come by and by, namely, that the villanus sometimes was and sometimes was not the justiciable of a court in which his lord or his lord's steward presided. All depended on the answer to the question whether his lord had 'sake and soke.' His lord might have justiciary rights over all his tenants, or merely over his villani, or he might have no justiciary rights, for as yet 'sake and soke' were in the king's gift, and the mere fact that a lord had 'men' or tenants did not give him a jurisdiction over them.
With this question is connected another, namely, whether the villani had a locus standi in the national courts. We have seen six villani together with the priest (undoubtedly a free man) and the reeve of each vill summoned to swear in the great inquest.(67*) One of the most famous scenes recorded by our is that in which William of Chernet claimed a Hampshire manor on behalf of Hugh de Port and produced his witnesses from among the best and eldest men of the county; but Picot, the sheriff of Cambridgeshire, who was in possession, replied with the testimony of villeins and mean folk and reeves, who were willing to support his case by oath or by ordeal.(68*) Again, in Norfolk, Roger the sheriff claimed a hundred acres and five villani and a mill as belonging to the royal manor of Brainfort, and five villani of the said manor testified in his favour and offered to make whatever proof anyone might adjudge to them, but the half-hundred of Ipswich testified that the land belonged to a certain church of St Peter that Wihtgar held, and he offered to deraign this.(69*) Certainly this does not look as if villani were excluded from the national moots. But a rule which valued the oath of a single thegn as highly as the oath of six ceorls would make the ceorl but a poor witness and tend to keep him out of court.(70*) The men who are active in the communal courts, who make the judgments there, are usually men of thegnly rank; but to go to court as a doomsman is one thing, to go as a litigant is another.(71*)
We may now approach the question whether, and if so in what sense, the land that the villanus occupies is his land. Throughout Domesday a distinction is sedulously maintained between the land of the villeins (terra villanorum) and the land that the lord has in dominio. Let us notice this phrase. Only the demesne land does the lord hold in dominio, in ownership. The delicate shade of difference that Bracton would see between dominicum and dominium is not as yet marked. In later times it became strictly correct to say that the lord held in demesne (in dominico suo) not only the land which he occupied by himself or his servants, but also the lands held of him by villein tenure.(72*) This usage appears very plainly in the Dialogue on the Exchequer. 'You shall know,' says the writer, 'that we give the name demesnes (dominica) to those lands that a man cultivates at his own cost or by his own labour, and also to those which are possessed in his name by his ascriptitii; for by the law of his kingdom not only can these ascriptitii be removed by their lords from the lands that they now possess and transferred to other places, but they may be sold and dispersed at will; so that rightly are both they and the lands which they cultivate for the behalf of their lords accounted to be dominia.'(73*) Far other is the normal, if not invariable, usage of Domesday The terrae villanorum, the silvae villanorum, the piscariae villanorum, the molini villanorum -- for the villeins have woods and fisheries and mills -- these the lord does not hold in dominio.(74*) Then again the oxen of the villeins are carefully distinguished from the oxen of the demesne, while often enough they are not distinguished from the oxen of those who in every sense are free tenants.(75*) Now as regards both the land and the oxen we seem put to the dilemma that either they belong to the lord or else they belong to the villeins. We cannot avoid this dilemma, as we can in later days, by saying that according to the common law the ownership of these things is with the lord, while according to the custom of the manor it is with the villeins, for we believe that a hall-moot, a manorial court, is still a somewhat exceptional institution.
On the whole we can hardly doubt that both in their land and in their oxen the villeins have had rights protected by law. Let us glance once more at the scheme of bot and wer that has been in force. A villein is slain; the manbot payable to his lord is marked off from the much heavier wergild that is payable to his kindred. If all that a villein could have belonged to his lord such a distinction would be idle.
Still we take it that for one most important purpose the villein's land is the lord's land: -- the lord must answer for the geld that is due from it. Not that the burden falls ultimately on the lord. On the contrary, it is not unlikely that he makes his villeins pay the geld that is due from his demesne land; it is one of their services that they must 'defend their lord's inland' against the geld. But over against the state the lord represents as well the land of his villeins as his own demesne land. From the great levy of 1084 the demesne lands of the barons had been exempted,(76*) but no doubt they had been responsible for the tax assessed on the lands held by their villani. We much doubt whether the collectors of the geld went round to the cottages of the villeins and demanded here six pence and there four pence; they presented themselves at the lord's hall and asked for a large sum. Nay, we believe that very often a perfectly free tenant paid his geld to his lord, or through his lord.(77*) Hence arrangements by which some hides were made to acquit other hides; such, for example, was the arrangement at Tewkesbury; there were fifty hides which had to acquit the whole ninety-five hides from all geld and royal service.(78*) And then it might be that the lord, enjoying a special privilege, was entitled to take the geld from his tenants and yet paid no geld to the king; thus did the canons of St Petroc in Cornwall(79*) and the monks of St Edmund in Suffolk.(80*) But as regards lands occupied by villeins, the king, so it seems to us, looks for his geld to the lord and he does not look behind the lord. This is no detail of a fiscal system. A potent force has thus been set in motion. He who pays for land -- it is but fair that he should be considered the owner of that land. We have a hint of this principle in a law of Cnut: -- 'He who has "defended" land with the witness of the shire is to enjoy it without question during his life and on his death may give or sell it to whom he pleases.'(81*) We have another hint of this principle in a story told by Heming, the monk of Worcester: -- in Cnut's time but four days of grace were given to the landowner for the payment of the geld; when these had elapsed, anyone who paid the geld might have the land.(82*) It is a principle which, if it is applied to the case of lord and villein, will attribute the ownership of the land to the lord and not to the villein.
And then we would ask: What services do the villeins render? A deep silence answers us, and as will hereafter be shown, there are many reasons why we should not import the information given us by the monastic cartularies, even such early cartularies as the Black of Peterborough, into the days of the Confessor. No doubt the villeins usually do some labour upon the lord's demesne lands. In particular they help to plough it. A manor, we can see, is generally so arranged that the ratio borne by the demesne oxen to the demesne land will be smaller than that borne by the villeins' oxen to the villeins' land. Thus, to give one example out of a hundred, in a Somersetshire manor the lord has four hides and three teams, the villeins have two hides and three teams.(83*) But then the lord gets some help in his agriculture from those who are undoubtedly free tenants. The teams of the free tenants are often covered by the same phrase that covers the teams of the villeins.(84*) Radknights who are liberi homines plough and harrow at the lord's court.(85*) The very few entries which tell us of the labour of the villeins are quite insufficient to condemn the whole class to unlimited, or even to very heavy work. On a manor in Herefordshire there are twelve bordiers who work one day in the week.(86*) On the enormous manor of Leominster there are 238 villani and 85 bordarii. The villani plough and sow with their own seed 140 acres of their lord's land and they pay 11 pounds and 52 pence.(87*) On the manor of Marcle,which also is in Herefordshire, there are 36 villani and 10 bordarii with 40 teams. These villani plough and sow with their own seed 80 acres of wheat and 71 of oats.(88*) At Kingston, yet another manor in the same county, 'the villani who dwelt there in King Edward's day carried venison to Hereford and did no other service, so says the shire.(89*) On one Worcestershire manor of Westminster Abbey 10 villeins and 10 bordiers with 6 teams plough 6 acres and sow them with their own seed; on another 8 villeins and 6 bordiers with 6 teams do the like by 4 acres.(90*) This is light work. Casually we are told of burgesses living at Tamworth who have to work like the other villeins of the manor of Drayton to which they are attached,(91*) and we are told of men on a royal manor who do such works for the king as the reeve may command;(92*) but, curiously enough, it is not of any villeins but of the Bishop of Worcester's riding men (radmanni) that it is written 'they do whatever is commanded them'.(93*)
With our thirteenth century cartularies before us, we might easily underrate the amount of money that was already being paid as the rent of land at the date of the Conquest. In several counties we come across small groups of censarii, censores, gablatores who pay for their land in money, of cervisarii and mellitarii who bring beer and honey. Renders in kind, in herrings, eels, salmon are not uncommon, and sometimes they are 'appreciated', valued in terms of money. The pannage pig or the grass swine, which the villeins give in return for mast and herbage, is often mentioned. Throughout Sussex it seems to be the custom that the lord should have 'for herbage' one pig from every villein who has seven pigs.(94*) But money will be taken instead of swine, oxen or fish.(95*) The gersuma, the tailla, the theoretically free gifts of the tenants, are sums of money. But often enough the villanus is paying a substantial money rent. We have seen how at Leominster villeins plough and sow 140 acres for their lord and pay a rent of more than ?1.(96*) At Lewisham in Kent the Abbot of Gand has a manor valued at ?0; of this ? is due to the profits of the port while two mills with 'the gafol of the rustics' bring in ? 12s.(97*) Such entries as the following are not uncommon -- there is one villein rendering 30d.(98*) -- there is one villein rendering 10s(99*) -- 46 cotarii with one hide render 30 shillings a year(100*) -- the villeins give 13s 4d by way of consuetudo.(101*) No doubt it would be somewhat rare to find a villein discharging all his dues in money -- this is suggested when we are told how on the land of St Augustin one Wadard holds a large piece 'de terra villanorum' and yet renders no service to the abbot save 30s a year.(102*) At least in one instance the villeins seem to be holding the manor in farm, that is to say, they are farming the demesne land and paying a rent in money or in provender.(103*) We dare not represent the stream of economic history as flowing uninterruptedly from a system of labour services to a system of rents. We must remember that in the Conqueror's reign the lord very often had numerous serfs whose whole time was given to the cultivation of his demesne. In the south-western counties he will often have two, three or more serfs for every team that he has on his demesne, and, while this is so, we cannot safely say that his husbandry requires that the villeins should be labouring on his land for three or four days in every week.
As a last question we may ask: What was the English for villanus? It is a foreign word, one of those words which came in with the Conqueror. Surely, we may argue, there must have been some English equivalent for it. Yet we have the greatest difficulty in finding the proper term. True that in the Quadripartitus and the Leges villanus generally represents ceorl; ceorl when it is not rendered by villanus is left untranslated in some such form as cyrliscus homo. But then ceorl must be a wider word than the villanus of Domesday for it has to cover all the non-noble free men; it must comprehend the numerous sochemanni and liberi homines of northern and eastern England. This in itself is not a little remarkable; it makes us suspect that some of the lines drawn by Domesday are by no means very old; they cannot be drawn by any of those terms that have been current in the Anglo-Saxon dooms or which still are current in the text- that lawyers are compiling. To suppose that villanus is equivalent to gebur is impossible; we have the best warrant for saying that the Latin for gebur is not villanus but colibertus.(104*) Nor can we hold that the villanus is a geneat. In the last days of the old English kingdom the geneat, the 'companion,' the 'fellow,' appears as a horseman who rides on his lord's errands; we must seek him among the radmanni and rachenistres and drengi of Domesday (105*) We shall venture the guess that when the Norman clerks wrote down villanus, the English jurors had said tunesman. As a matter of etymology the two words answer to each other well enough; the villa is the tun, and the men of the villa are the men of the tun. In the enlarged Latin version of the laws of Cnut, known as Instituta Cnuti, there is an important remark: -- tithes are to be paid both from the lands of the thegn and from the lands of the villeins -- 'tam de dominio liberalis hominis, id est thegenes, quam de terra villanorum, id est tuumannes (corr. tunmannes).'(106*) Then in a collection of dooms known as the Northumbrian Priests' Law there is a clause which orders the payment of Peter's pence. If a king's thegn or landlord (landrica) withholds his penny, he must pay ten half-marks, half to Christ, half to the king; but if a tunesman withholds it, then let the landlord pay it and take an ox from the man.(107*) A very valuable passage this is. It shows us how the lord is becoming responsible for the man's taxes; if the tenant will not pay them, the lord must. It is then in connexion with this responsibility of the lord that the term townsman meets us, and, if we mistake not, it is the lord's responsibility for geld that is the chief agent in the definition of the class of villani. The pressure of taxation, civil and ecclesiastical, has been forming new social strata, and a new word, in itself a vague word, is making its way into the vocabulary of the law.(108*)
The class of villeins may well be heterogeneous. It may well contain (so we think) men who, or whose ancestors, have owned the land under a political supremacy, not easily to be distinguished from landlordship, that belongs to the king; and, on the other hand, it may well contain those who have never in themselves or their predecessors been other than the tenants of another man's soil. In some counties on the Welsh march there are groups of hospites who in fact or theory are colonists whom the lord has invited on to his land;(109*) but this word, very common in France, is not common in England. Our record is not concerned to describe the nature or the origin of the villein's tenure; it is in quest of geld and of the persons who ought to be charged with geld, and so it matters not whether the lord has let land to the villein or has acquired rights over land of which the villein was once the owner. Therefore we lay down no brprinciple about the rights of the villein, but we have suggested that taken in the mass the villani of the Confessor's reign were far more 'law-worthy' than were the villani of the thirteenth century. We cannot treat either the legal or the economic history of our peasantry as a continuous whole; it is divided into two parts by the red thread of the Norman Conquest. That is a catastrophe. William might do his best to make it as little of a catastrophe as was possible, to insist that each French lord should have precisely the same rights that had been enjoyed by his English antecessor; it may even be that he endeavoured to assure to those who were becoming villani the rights that they had enjoyed under King Edward.(110*) Such a task, if attempted, was impossible. We hear indeed that the English 'redeemed their lands,' but probably this refers only to those English lords, those thegns or the like, who were fortunate enough to find that a ransom would be accepted.(111*) We have no warrant for thinking that the peasants, the common 'townsmen,' obtained from the king any covenanted mercies. They were handed over to new lords, who were very free in fact, if not in theory, to get out of them all that could be got without gross cruelty.
We are not left to speculate about this matter. In after days those who were likely to hold a true tradition, the great financier of the twelfth, the great lawyer of the thirteenth century, believed that there had been a catastrophe. As a result of the Conquest, the peasants, at all events some of the peasants, had fallen from their free estate; free men, holding freely, they had been compelled to do unfree services.(112*) But if we need not rely upon speculation, neither need we rely upon tradition. Domesday is full of evidence that the tillers of the soil are being depressed.
Here we may read of a free man with half a hide who has now been made one of the villeins,(113*) there of the holder of a small manor who now cultivates it as the farmer of a French lord graviter et miserabiliter,(114*) and there of a sokeman who has lost his land for not paying geld, though none was due;(115*) while the great Richard of Tonbridge has condescended to abstract a virgate from a villein or a villein from a virgate.(116*) But, again, it is not on a few cases in which our record states that some man has suffered an injustice that we would rely. Rather we notice what it treats as a quite common event. Free men are being 'added to' manors to which they did not belong. Thus in Suffolk a number of free men have been added to the manor of Montfort; they pay no 'custom' to it before the Conquest, but now they pay ?5; AElfric who was reeve under Roger Bigot set them this custom.(117*) Hard by them were men who used to pay 20 shillings, but this same AElfric raised their rent to 100 shillings.(118*) 'A free man held this land and could sell it, but Waleran father of John has added him to this manor':(119*) -- Entries of this kind are common. The utmost rents are being exacted from the farmers: -- this manor was let for three years at a rent of ?2 and a yearly gift of an ounce of gold, but all the farmers who took it were ruined(120*) -- that manor was let for ? 15s. but the men were thereby ruined and now it is valued at only 45s.(121*) About these matters French and English cannot agree: -- this manor renders ?0 by weight, but the English value it at only ?0 by tale(122*) -- the English fix the value at ?0, but the French at ?00(123*) -- Frenchmen and Englishmen agree that it is worth ?0, but Richard let it to an Englishman for ?0, who thereby lost ?0 a year, at the very least.(124*) 'It cannot pay,' 'it can hardly pay,' 'it could not stand' the rent, such are the phrases that we hear. If the lord gets the most out of the farmer to whom he has leased the manor, we may be sure that the farmer is making the most out of the villeins.
But the most convincing proof of the depression of the peasantry comes to us from Cambridgeshire. The rural population of that county as it existed in 1086 has been classified thus:(125*) --
sochemanni 213
villani 1902
bordarii 1428
cotarii 736
servi
548
But we also learn that the Cambridgeshire of the Confessor's day had contained at the very least 900 instead of 200 sokemen.(126*) This is an enormous and a significant change. Let us look at a single village. In Meldreth there is a manor; it is now a manor of the most ordinary kind; it is rated at 3 hides and 1 virgate, but contains 5 team-lands; in demesne are half a hide and one team, and 15 bordarii and 3 cotarii have 4 teams, and there is one servus. But before the Conquest this land was held by 15 sokemen; 10 of them were under the soke of the Abbey of Ely and held 2 hides and half a virgate; the other 5 held 1 hide and half a virgate and were the men of Earl AElfgar.(127*) What has become of these fifteen sokemen? They are now represented by fifteen bordiers and five cottiers; and the demesne land of the manor is a new thing. The sokemen have fallen, and their fall has brought with it the consolidation of manorial husbandry and seignorial power. At Orwell Earl Roger has now a small estate; a third of it is in demesne, while the residue is held by 2 villeins and 3 bordiers, and there is a serf there. This land had belonged to six sokemen, and those six had been under no less than five different lords; two belonged to Edith the Fair, one to Archbishop Stigand, one to Robert Wimarc's son, one to the king, and one to Earl Aelfgar.(128*) Displacements such as this we may see in village after village. No one can read the survey of Cambridgeshire without seeing that the freer sorts of the peasantry have been thrust out, or rather thrust down.
Evidence so cogent as this we shall hardly find in any part of the record save that which relates to Cambridgeshire and Bedfordshire. But great movements of the kind that we are examining will hardly confine themselves within the boundaries of a county. A little variation in the formula which tells us who held the land in 1066 may hide from us the true state of the case. We cannot expect that men will be very accurate in stating the legal relationships that existed twenty years ago. Since the day when King Edward was alive and dead many things have happened, many new words and new forms of thought have become familiar. But taking the verdicts as we find them, there is still no lack of evidence. In Essex we may see the liberi homines disappearing.(129*) But we need not look only to the eastern counties. At Bromley, in Surrey, Bishop Odo has a manor of 32 hides, 4 of which had belonged to 'free men' who could go where they pleased, but now there are only villeins, cottiers, and serfs.(130*) We turn the page and find Odo holding 10 hides which had belonged to 'the alodiaries of the vill.'(131*) In Kent Hugh de Port is holding land that was held by 6 free men who could go whither they would; there are now 6 villeins and 14 bordiers there, with one team between them.(132*) Students of Domesday were too apt to treat the antecessores of the Norman lords as being in all cases lords of manors. Lords of manors, or rather holders of manors, they often were, but as we shall see more fully hereafter, when we are examining the term manerium, such phrases are likely to deceive us. Often enough they were very small people with very little land. For example these six free men whom Hugh de Port represents had only two and a half team-lands. We pass by a few pages and find Hugh de Montfort with a holding which comprises but one team-land and a half; he has 4 villeins and 2 bordiers there. His antecessores were three free men, who could go whither they would.(133*) They had need for but 12 oxen; they had no more land than they could easily till, at all events with the help of two or three cottages or slaves. To all appearance they were no better than peasants. They or their sons may still be tilling the land as Hugh's villeins. When we look for such instances we very easily find them. The case is not altered by the fact that the term 'manor' is given to the holdings of these antecessores. In Sussex an under-tenant of Earl Roger has an estate with four villeins upon it. His antecessores were two free men who held the land as two manors. And how much land was there to be divided between the two? There was one team-land. Such holders of maneria were tillers of the soil, peasants, at best yeomen.(134*) If they were of thegnly rank, this again does not alter the case. When in the survey of Dorset we read how four thegns held two team-lands, how six thegns held two team-lands, eight thegns two team-lands, nine thegns four team-lands, eleven thegns four team-lands,(135*) we cannot of course be certain that each of these groups of co-tenants had but one holding; but thegnly rank is inherited, and if a thegn will have nine or ten sons there will soon be tillers of the soil with the wergild of twelve hundred shillings. Now if these things are being done in the middling strata of society, if the sokemen are being suppressed or depressed in Cambridgeshire, the alodiaries in Sussex, what is likely to be the fate of the poor? They will have to till their lord's demesne graviter et miserabiliter. He can afford to dispense with serfs, for he has villeins.
A last argument must be added. What we see in the thirteenth century of the ancient demesne of the crown(136*) might lead us to expect that in Domesday 'the manors of St Edward' would stand out in bold relief. Instead of a population mainly consisting of villeins, shall we not find upon them large numbers of sokemen, the ancesters of the men who in after days will be protected by the little writ of right and the Monstraverunt? Nothing of the kind. The royal manor differs in no such mode as this from any other manor. If it lies in a county in which other manors have sokemen, then it may or may not have sokemen. If it lies in a county in which other manors have no sokemen, it will have none. Cambridgeshire is a county in which there are some, and have been many, sokemen; there is hardly a sokeman upon the ancient demesne. In after days the men of Chesterton, for example, will have all the peculiar rights attributed by lawyers to the sokemen of St Edward. But St Edward, if we trust Domesday had never a sokeman there; he had two villeins and a number of bordiers and cottiers.(137*) It seems fairly clear that from an early time, if not from the first days of the Conquest onwards, the king was the best of landlords. The tenants of those manors that were conceived as annexed to the crown, those tenants one and all, save the class of slaves which was disappearing, got a better, a more regular justice than that which the villeins of other lords could hope for. It was the king's justice, and therefore -- for the king's public and private capacities were hardly to be distinguished -- it was public justice, and so became formal justice, defined by writs, administered in the last resort by the highest court, the ablest lawyers. And so sokemen disappear from private manors. Some of them as tenants in free socage may maintain their position; many fall down into the class of tenants in villeinage. On the ancient demesne the sokemen multiply; they appear where Domesday knew them not; for those who are protected by royal justice can hardly (now that villeinage implies a precarious tenure) be called villeins, they must be 'villein sokemen' at the least. Whether or no we trust the tradition which ascribes.to the Conqueror a law in favour of the tillers of the soil, we can hardly doubt that the villani and bordarii whom Domesday shows us on the royal manors are treated as having legal rights in their holdings. And if this be true of them, it should be true of their peers upon other manors. Yes, it should be true; the manorial courts that are arising should do impartial justice even between lord and villeins; but who is to make it true?
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