the state of things exhibited in the previous chapter is essentially transitional. what we have there seen is the town emerging out of the country, or, to put it another way, the country merging, through the principle of attraction, into the focus of the town. this method of viewing the subject is necessarily partial and incomplete. the existence of a common in association with a town or village or group of villages is not a self-evident proposition, to be taken for granted. it is clearly part of a system which it now becomes our business to investigate.
to all appearances many of the arrangements found in the course of, and to the close of, the middle ages, and even (in a decaying and disappearing form) almost to our own generation, were descended from that well-nigh immemorial antiquity, in which our forefathers were colonists in what was to them a new world—a world of forest and of fen, of man-eating beasts, and alien foemen as fierce or fiercer than they. these conditions determined the course of action of the men who lived under them. for safety, men of one blood dwelt together in a stockaded village or tún. they and their stock, however, had to subsist on their labour and the bounty of the earth; and therefore around the village a tract of cultivable land was appropriated to the use of the community. until some degree of security was attained it was futile to dream too much of individual rights; the inhabitants would have been only too glad of the co-operation of their neighbours, and whilst some worked others no doubt stood to arms. within this area seem to have lain fenced fields for the shelter of calves and other young animals, but this was probably the only exception. beyond the arable land lay a ring of meadow land; beyond that the stinted pasture; and beyond that again the forest or waste.
by the term "common" is generally understood common of pasture; it is not unusual to meet with the phrase "cow commons," as though cows were the principal, if not the sole, objects which rendered commons of service. this may well have been the case in later times. in early days however, there went along with it common tillage, examples of which are still to be found on the continent. traces of the open-field system exist also in various parts of england, notably between hitchin and cambridge, where there are huge turf balks dividing the fields. it is said that within the last century the country lying between royston and newmarket was entirely unenclosed, and till quite late in the century parishes like lexton, in northamptonshire, retained this characteristic. other examples occur at swanage in dorset and stogursey in west somerset.
borough english
before proceeding to describe the methods of cultivation employed, it is desirable to glance at a custom which, there is reason to suppose, is connected with that remote period when the english were not de jure masters of the soil, but occupied the position of colonists, who either expropriated the original inhabitants or entered upon possession of land as res nullius, to which they had established no solid claim by prescription. we have already referred to that valuable repertoire of national customs, so judiciously edited as to merit the higher praise invaluable—the year-books. the reports of the pleas in the common bench for 1293 include the following:
"one a. brought a writ of entry against b., saying, 'into which he had not entry except by such an one who had tortiously, &c., disseised his father robert.' and he laid the descent thus: 'from robert descended the right, &c., to adam the present demandant, as his youngest son and heir, according to the custom of such a place, &c.'
"asseby: 'sir, we tell you that adam has an elder brother named n., who is legitimate and is alive, and whom they have omitted. judgment of the omission.'
"sutton: 'sir, even if he had made a quit-claim to him, yet that could not be a bar to us, because by the custom of the country the youngest shall have his inheritance, wherefore there is no need to make mention of him.'
"asseby: 'sir, he has brought a writ at common law; judgment if he ought not to be answered at common law, and if he (the demandant) can allege the custom.'
"sutton: 'in many places in england a woman demands her dower by the writ "unde nihil habet," which is a writ at common law, and yet, according to the custom of the country, she will recover for her dower a moiety of the tenements which belonged to her husband, where by common law she would have only the third part, and also in the case of tenements in some countries which are holden by knight-service the lord can avow the taking as good for cornage according to the law of the country; and yet the writ is at common law. and also in gavelkind according to the custom [of kent] the younger brother shall have as much as the elder; and yet one brother shall recover against the other brother by right "de rationabile parte," and by the "nuper obiit," which are writs at common law. so in the present case.'
"metingham [the judge]: 'asseby, answer.'"
now what was this custom? it is that known as "borough english," and the reader will have already inferred from the report of the action that, wherever it prevailed, the youngest son claimed to succeed to his father's estate. it is therefore the antithesis of the right of primogeniture, whereby real estate falls to the eldest son. an old record given to print by the late mr. robert dymond, f.s.a., exhibits in great detail the customs of the manor of braunton, in devonshire, and among them is that of borough english, or, as it is termed in local parlance, "cradle-land." this testimony is of peculiar interest, since the document comprises a provision for the assignment of the property in the not wholly improbable event of the family consisting entirely of daughters. the section touching upon borough english is thus formulated:
"heirs of the youngest holding
"item, the custome ys in every of the sayd manors that if eny manner of person or persons be seased of eny manner of land or tenements, rents or premises of the yonger holdyng liying withyn eny of the seid manors or liberties in fee symple or in fe tayle, in demeane or in usu, and have divers sonnys by dyvers venters, viz. by dyvers wyvys, or women by divers men, and dye, that then the yonger son of them shall inherite the seid lands and tenements with other the premyses in fe symple as in fe tayle that so descendith in the seid yonger holdyng in demeane or in use, except ther be any other estate made & proved to the contrary by wryting & if the[y] have no yssue butt all doughters that then the seid inheritance [is] to be parted betwene theym except any lawful wryting or state made to the contrary after the custom."
neither of these rules of succession was in any way confined to the west of england. indeed, the late mr. t. w. shore, who appears to have been quite an authority on the subject, affirms that "in a general way it may be said that the further we go from kent the less numerous become the instances in any county of england." this statement is confirmed by a yet greater authority. "borough english," says elton, "was most prevalent in the s.e. districts, in kent, sussex, and surrey, in a ring of manors encircling ancient london, and, to a less extent, in essex and the east anglian kingdom." mr. e. a. peacock, however, points out that there are in lincolnshire seven places where the custom is still abiding—viz., hibaldstow, keadby, kirton-in-lindsey, long bennington, norton (bishops), thoresby and wathall; and he further calls attention to the fact, which is certainly most important, that the custom may be traced over nearly all europe with the exception of spain and italy, and up to the boundaries of china and arracan. the german name is jungsten-recht; and the practice for which it stands existed, amongst other places, at rettenburg in westphalia. how then did it become known as borough english? the reason is suggested by the two sorts of tenure—burgh engloyes and burgh francoyes—which are found in different parts of the town of nottingham in the reign of edward iii. borough english was the native custom which had succeeded in holding its ground against the effects of the norman conquest.
as has been said, borough english was in vogue all around london—at lambeth, vauxhall, croydon, streatham, leigham court, shene or richmond, isleworth, sion, ealing, acton, and earl's court. in some of these places—fulham, wimbledon, battersea, wandsworth, barnes and richmond—the "yonger holding" descended not only to males but to females; and at lambeth (and at kirton-in-lindsey, in lincolnshire) there existed the identical arrangement which has been found at braunton, in devon. this equal division between daughters mr. shore regards as an "intermediate stage between borough english and gavelkind." the latter is distinctively the "custom of kent," and signifies that the land was "partible," and inherited by the sons in equal shares, the youngest son retaining the homestead, and making compensation to his brethren for this addition to his share. borough english and gavelkind, therefore, though not the same, are near akin; and it is an interesting question which of the two was prior to the other. it may be that gavelkind is the older, and that borough english is a remnant or distortion of what appears, on the face of it, a more equitable condition of things. on the other hand, gavelkind may have been, so to speak, grafted on a more simple usage which the community, through change of circumstances, had outgrown, and had ceased to possess the same justification as at first.
why should the youngest son take the inheritance? one explanation is that he was presumed to be least able to provide for himself. this, however, expresses only half the truth. the other half has, we think, been furnished by mr. peacock:
"the most popular explanation in the last [eighteenth] century was the calumny known as mercheta mulierum, now known as a malignant fable popularized by novelists and playwrights. another suggestion is that it is a custom that has survived from some prehistoric race; a third that it has grown up at different points...." mr. peacock regards the last as the most likely. "it is only when the population becomes relatively dense that land, apart from what it produces, is of any value. a time, however, would soon be reached when land would have a value of its own. the good soil would soon be taken up, and in the days of a primitive mode of culture third-rate land would be valueless. then the house-father would be forced by circumstances to make provision, ere his death, for the sons sharing the ancestral domain between them.
"here we have the origin of gavelkind—a form of devolution more widely spread than even ultimo-geniture or borough english. gavelkind, however, could be but a temporary provision. as the population grew, so it would be absolutely necessary that the young men of the household should make new settlements for themselves. this fact accounts in its measure for the vast shifting of the population that took place when the roman empire was in its protracted death-agony. the torrents of human beings which poured in on the decaying empire were considered by the older historians as evidence of nomadic barbarism. we, with our present lights, say rather that they indicate a population too dense for their own homes to support.
"it would be a matter of course that the elder sons should go forth and carve out for themselves new homes in the west; but when the swarm departed, all the sons would not go forth from the shelter of the native roof-tree. one at least, commonly the youngest, would stay behind. on him would devolve the duty of looking after the old folk and his unmarried sisters. on him would devolve in due time the duties of the sacrifices connected with the sacred hearth; and when the father died to him would devolve the paternal dwelling, with its ploughland, its meadow, and its rights of wood and water. here is, we believe, the key to the origin of borough english."
the open field
we now pass to the methods of cultivation observed in the open field—the conditions of early agriculture. there is reason to believe that at the time of the english settlement extensive tillage must have existed, at any rate to some degree; but this was soon superseded by intensive culture. certain fields, that is to say, were allocated for the raising of particular crops, the limits being marked by large balks or banks. beside these arable fields there was a tract of meadow land, from which the cattle would have been excluded during the time necessary for the growth and carrying of hay. after harvesting operations had been completed, and all through the winter, the cattle were allowed to range at will among the stubble of the arable fields, and over the meadow land, as also over the waste, which was more properly their domain.
as it was impossible to raise crops year after year from the same fields without gravely impoverishing the soil, this system was exchanged in some places for another—that of cropping one or two fields and allowing the other to lie fallow. this modification was not always judged requisite to prevent the exhaustion or deterioration of the land; and thus there arose a third—what is termed the "three-field" system, by which out of three arable fields two were under cultivation at the same time, one lying fallow. the third plan was that which ultimately met with most favour. in the early autumn the field that had lain fallow through the summer was ploughed and sown with wheat, rye, or other corn; and in the spring the stubble of the field that had yielded the last crop of wheat was ploughed up, and barley or oats sown in it. the third field, in which the previous crop had been barley, retained the stubble till the early days of june. it was then ploughed up and left in that condition until a fresh crop was sown in the autumn. professor cunningham, whose account we here follow, has furnished a convenient chart or diagram which we venture to reproduce as an aid to the comprehension of the subject:
i. ii. iii.
wheat (or rye)
sown stubble of
wheat stubble of
barley
jan sown wheat barley(or oats)
march sow
barley
june plough and
leave fallow
august reap
october plough and
sow wheat
wheat
stubble barley
stubble
this chart represents one year's labours. in the following year the first field would take the place of the second, the second that of the third, and the third that of the first. the process would be repeated in the third year, and in this way the rotation would continue to be maintained. there were districts in which the three-field ousted the two-field system; and others in which neither entirely displaced the other. both eventually gave way to the more modern method of four-course husbandry. the three-field style of agriculture may date back to the remote reign of king ine, when, it seems certain, open-field cultivation in some form was the rule. this being the case, it was necessary that the fields in which corn and grass were growing should be fenced off for the time being; and one of king ine's laws has reference to the recognition or neglect of this neighbourly duty:
"if churls have a common meadow or other partible land[15] to fence, and some have fenced their part, and some have not, and (cattle stray in and) eat up their common corn or grass; let those go who own the gap and compensate to the others who have fenced their part the damage which there may be done, and let them demand such justice on the cattle, as it may be right. but if there be a beast which breaks hedges, and goes in everywhere, and he who owns it cannot restrain it, let him who finds it in his field take it and slay it, and let the owner take its skin and flesh, and forfeit the rest."
the picture this law presents is that of fields divided by temporary fences, in which, if the three-field system were in use, two would be under cultivation and the third fallow. one great field of thirty acres would have sixty distinct strips, with a narrow margin of turf serving in each case as the line of demarcation. to each servile holding in the confessor's time the landlord assigned a pair of oxen with which to work it; and these may have been combined into a powerful team of eight or twelve, similar to manorial teams, though plough-teams varying in numerical strength are recorded, and the efficiency of some of them may well be doubted.
if there were oxen, it is clear that provision must have been made for their support; and this consisted in the hay from the meadow, in the pasture of the common waste, and that of the fallow field and the other fields in the interval between harvest and seed-time. the question whether the tillers were bond or free probably made no difference to the way in which agricultural operations were conducted.
the collapse of this system may be attributed to the scarcity of labour brought about especially by the black death. when men could not be had in sufficient number, the necessary consequences was the expansion of pasture and the contraction of tillage; and this dual process was assisted by the stampede of labourers to the towns and the policy of enclosure to which landowners resorted as a remedy. deprived of their quit-rents, and not having resources for the payment of wages on an adequate scale, supposing that labour was obtainable on reasonable terms, the landholders fell back upon the only expedients that remained to them. they had land, and they had stock; and, as an escape from absolute ruin, they let the land to tenants who took over the stock and, probably, as the need arose, replaced it with their own beasts. this revolution, already in full swing in the fourteenth century, paved the way for the present order of things, under which the tenant pays a fixed rent for the use of land and buildings, and finds the capital for farming.
the waste
we have next to deal with the waste. the meaning of the term is clear—it signifies land which, from the poverty of the soil or other reasons, had never been brought under cultivation. the commons that still survive are mostly of that description, the more valuable land having been resumed during one of the successive periods of enclosure, or—piecemeal.
originally, there is little doubt, such land belonged to the family or sept, by whom it was used as forest for game or as pasturage for cattle. unlike the arable field or the common meadow, it was not distributed into sets, but enjoyed in common by all who possessed the right of stocking it. in a genial article in the "antiquary" describing how the world wagged in his parish of blewbury, berks, in the eighteenth century, the rev. n. l. whitchurch observes: "there were 'cow commons' on the downs in those days, and a road from the village is still called the 'cow way.' in the early morning a man would collect the various cows of the village, which he drove to pasture for the day. the ancient bell which he rang at the foot of the 'cow road' is still preserved in the village."
in saxon times the purchase of stock by an individual was a matter of general concern to the community in which he lived. by a law of king edgar, if a man in the course of a journey bought cattle, he was required on his return to turn them out into the common pasture, "with the witness of the township." if he omitted to do so within five nights, the townsmen were to acquaint the hundred elder, and the cattle were forfeited, the lord receiving one-half and the hundred the other. if the townsmen failed in their duty, their herdsman was subjected to a flogging. for the purchase of cattle the witness of the township was not enough. twelve standing witnesses were appointed for every hundred, and the buyer had to make it his business to seek out two or three of them so as to secure their presence at the transaction.
whatever the primitive constitution of society may have been, in historical times three parties possessed an interest in the waste. blackstone defines common as "a profit which a man hath in the land of another, as to feed his beasts, to catch fish, to dig turf, to cut wood, and the like." in theory, the waste belonged to the king, who vested portions of it in individual lords or religious houses, and they thus became recognized owners of the soil. in case of outlawry or attainder, the waste reverted to the crown, which, according to custom, held possession of it for a year and a day. thirdly, the use of the soil, for various specified purposes, resided in the inhabitants of certain townships or hundreds, was appendant to certain tenements, or was reserved as easement on the sale of the land.
some very interesting questions, arising out of this joint occupancy, were raised in the courts at the close of the thirteenth century—notably the right of search for the object of ascertaining whether there were on the common more animals than any of the parties was entitled to place there, and, if so, of impounding them. was this right appurtenant to the manor, or was it also appendant to a frank tenement in a particular vill? in one case where the lord had depastured an excess of beasts, the court decided against him, and in favour of a commoner whom he accused of "tortiously" taking his cattle. but, notwithstanding this judgment, there is some uncertainty on the point, as appears from the report of an action tried in the middlesex iter of 1294.
"robert fitznel brought the replegiare against richard, the son of john, saying that he had tortiously taken his beasts in the wood of the abbat of horwede, formerly the forest of king henry, by whom it was given as a chace to n., ancestor of richard."
"warwick: 'sir, we offer to aver that robert and all those who have held the land in n., which he holds have been seised for all time, &c., of the common in the wood where his taking was made as appurtenant to their frank tenement....'
"gosefield imparted, and returned and said: 'sir, we will tell you the truth of this matter; and we tell you that the place where the taking was made was king henry's forest; and henry granted what was the forest to our ancestor by way of chace; and that in that chace, according to the custom of the chace, no person could put to common more beasts than could be fed or wintered on the produce of the land which he held in the same chace; and because robert brought his beasts from his lands which he held elsewhere, which beasts could not be fed or wintered on the land which he held within the chace, contrary to the usage and custom of the said chace, he (richard) took them, &c....'
"warwick: 'sir, first of all they avowed the taking, and said that we ought not to have any kind of common; and now they have admitted our right of common partially, viz. as to beasts which can be wintered ...'
"gosefield: 'the assise of forest is notorious and well-known to all, viz., that no man can have therein more beasts to common than can be fed off the said land.'
"warwick (he spoke then for the king): 'richard, do you claim to have assise of forest?'
"gosefield: 'nay, sir. but king henry granted and gave it to us to hold as a chace in the same manner as he held it while it was a royal forest; and we have three swain-motes yearly for searching and inquiring whether anyone puts more beasts therein than he ought to put; and, inasmuch as king henry granted it to us to hold like as he held it, it seems to us that there is no need to take the inquest.'
"hertford [the judge]: 'do you accept the averment or not?'
"gosefield (being obliged to accept the averment) said: 'sir, they were never seised of common for more beasts than could be wintered and fed and supported on the growth of the said land.'"
there is appended to this report a note which lays down the law in a different sense from that before stated. it is as follows:
"it is not sufficient for anyone who avows distress to say that he avows the taking, &c., for that he found the beasts in his chace of such a place, or in the common of such a place, where he had no right of common; for it may be that neither party had a right of common; and thus it is not sufficient but he must say that he found them in his several pasture, or must say some other thing that touches himself and gives him a right to impound what he found. for no man can avow a distress in a common pasture save the lord of the soil of the common pasture. for if any of the commoners were to make avowry for beasts taken in the common pasture it would then follow that if the inquest were to pass against the plaintiff, he who avowed the taking in the common pasture would have the return of the beasts and the amends, and not the lord of the pasture, and that would be improper. but this does not hold good where the king is the lord of the common pasture, and several persons holding of him in socage have common, because in that case anyone having common may avow a good distress. the reason is because the king will not be a party in such case or distrein anyone."
in medi?val country life, then, commons might be either manorial or forestal. bishop stubbs in his "constitutional history" affirms that "neither the hundreds of england nor the shires appear ever to have had common lands." as regards hundreds, on the enclosure of a common, allotments were made to several townships of knaresborough, and stubbs himself allows that "it seems a fair instance of common lands of a hundred." similarly, there is in the hundred of coleness in suffolk a pasture common to all the inhabitants. but in each instance we have probably to distinguish between use and ownership; and the same distinction applies to counties, otherwise the case of the devonshire commons might seem to refute the dictum.
the devonshire commons are not to be confused with the forest of dartmoor. they constitute rather the purlieus, and, in general, afford better pasturage than the forest itself. neither are they identical with the commons of the separate vills—the manorial or parochial commons. the whole of the inhabitants of the county may be regarded as possessing an interest in the devonshire commons, with the exception of the people of barnstaple and totnes, the reason being that those districts not having been afforested with the rest of the county, the residents acquired no new privileges when devonshire was disafforested. the other inhabitants retained whatever rights they had previously enjoyed not only in respect of the devonshire commons, but of the forest of dartmoor, of which, at some early period—before the era of perambulations, in which they were not included—those commons had no doubt formed part. one effect of the wide extent of the right of common was that the rule of levant and couchant did not obtain here. naturally, when all devonshire men were entitled to the use of the land, it was impossible to fix a limit to the number of the beasts that might be turned out throughout the length and breadth of the county.
mention was made above of royal forests as occupying, in some respects, a different position from other lands in which a right of common was exercised. dartmoor, although the property of the prince of wales as duke of cornwall, may be taken as, to all intents and purposes, answering to that description; and thus peculiar interest attaches to the usages which prevailed, and still prevail, within its bounds.
the question of "venville rights on dartmoor" is one that engaged the attention of a very capable writer as well as an accomplished antiquary, the late mr. w. f. collier; and although the subject has been handled by other investigators, it is from him that we have derived the bulk of our information on this very remarkable aspect of commonage. first, as to the name. "venville" is a provincial corruption of fines villarum, each vill paying a larger or smaller sum for the right of pasturage; and certain parishes or manors on the outskirts of the forest were said to be "in venville." "the perambulation [of 1224]," says mr. birkett, "establishes three important facts: viz., that the moor was originally part of a royal forest; that the commons of devon, and surrounding parishes were once part of the forest; and that the moor is not waste of a manor." the townships were grouped into four bailiwicks—north, south, east, and west; and the fines payable compose too long a list to be given entire. the following, however, are specimens: the township of trulegh (throwleigh), 2s. 6d.; the parish of south tawton, 7s. 4?d.; the township of sele (south zeal), 6?d.; the hamlet of lowyngton, in the parish of meavy, 2d.; the township of gadamewe (godameavy), in the same parish, 2d.; the township of chagford, 12d.; the hamlet of teigncombeham, with [within?] the parish of chagford, 4s. this was in 1506-7. in return for these payments the commoners have certain "venville" rights, which extend over the forest proper and the devonshire commons, and include the taking of stone and sand for their own use. but the most valued is that of agistment or pasturage, especially of ponies. the duchy, on its part, claims and exercises the right of "drift"—a picturesque survival on which we may well bestow some regard.
the division of the forest into four quarters still continues, each being in charge of a moorman; and over these wide tracts and the adjacent commons sheep, bullocks, and ponies are turned out by the tenants to graze at will. in the autumn the animals are driven to a traditional spot, in order that they may be claimed by their owners. there is a bullock drift, and a pony drift, of which the former is the earlier; and each quarter has its own drift days, which are usually different. in any case, no notice is given, but about two o'clock in the morning the moorman is apprised by a messenger that he must "drive" his quarter for bullocks or ponies. thereupon, according to the regular procedure, he ascends the tors and blows his horn as an intimation to the tenants to assist in the drift. in the western quarter there was formerly a stone, through a hole in which it was the custom to blow the horn, but this stone now graces a wall in a hedge.
the drift to merrivale bridge is accomplished by men on horseback and men on foot, and dogs, to the accompaniment of horns and halloos; and when all the animals have been gathered, an official of the duchy takes his stand on an ancient stone and reads a proclamation, which done the owners are summoned to claim, let us say, their ponies. the venville tenants identify their beasts, making no payment; but other persons—and in no case, apparently, is the right of pasturage disputed, nearly the whole of devonshire having been forest—have to render a fine for each animal. they have also to meet a trivial charge for night rest, which is supposed to have arisen from an old custom that debarred anyone from remaining on the forest by night, with the consequent temptation to deer-poaching. an unclaimed animal is driven to dunnebridge pound and there kept for some weeks, at the expiration of which, if he is still unclaimed, or if the owner refuses to pay for poundage, etc., he is sold for the benefit of the duchy.
each quarter of the moor has its peculiar earmark for ponies, consisting of a round hole at the base or the tip on the near or off ear, through which a piece of string is tied, there being thus four distinct marks.
some of these ancient usages have fallen into desuetude. the last occasion on which the horn was sounded was in 1843; and the four quarters are now let to as many "moormen," who endeavour to make as much profit as possible out of them. to this day, however, neither on dartmoor nor on the devonshire commons, is any man denied pasturage for his ponies or cattle.
bondmen
from vills we may naturally turn to those who in ancient days—the word has another meaning now—were named after them villeins. more than once in the course of this work we have had occasion to refer to the existence of an unfree class in england, on which prouder and more happily circumstanced persons looked with considerable disdain, and therefore our account would fail of a necessary element of completeness if it omitted to deal, in some measure, with this striking phenomenon of medi?val english life. the subject is too wide and complex to be discussed with any approach to thoroughness, but some aspects of it may be introduced, and indeed must be introduced, being, as we have said, complementary to statements of social relationships already set down.
the position of those who rested under the stigma of servitude is brought home to us pretty forcibly by a report of proceedings in the middlesex iter of 1294:
"one a. brought a writ of imprisonment against b.
"heilham (for b.): 'he ought not to be answered, for he is our villein.'
"a.: 'a free man and of free condition, ready, etc.'
"heilham said as before.
"metingham [the judge]: 'he cannot give a higher answer in a writ of neifty.'
"heilham: 'we will tell you the truth; his father was our villein, and held of us in villeinage land in the vill mentioned in his count, and where he was taken; and he begot this a., and also one b., his brother, of whom we are now seised, as of our villein; and this a. went out of the limits of the villeinage, and afterwards returned, and we found him at his hearth in his own nest, and we took him as our villein, as every lord may well do; and we pray judgment.'
"metingham: 'if my villein beget a child on my land which is in villeinage, and the child so begotten go out of the limits of my land, and six or seven or more years after return to the same land, and i find him in his own nest and at his own hearth, i can take him and tax him as my villein for the reason that his return brings him to the same condition as he was when he went.'
"heilham: 'he fell into the pit which he hath digged.'"
we must beware of attributing this doctrine of neifty to the norman conquest, which merely supplied names; in definiteness and cruelty nothing could exceed the practice of serfage under the saxons. "the slave," says green, "became part of the live stock of the estate, to be willed away at death with the horse or the ass, whose pedigree was kept as carefully as his own. his children were bondmen, like himself; even the freeman's children by a slave-mother inherited the mother's taint. 'mine is the calf that is born of my cow,' ran the english proverb." in the same passage he points out that the number of the serfs was being continually augmented from various concurrent causes—war, crime, debt, and poverty all assisting to drive men into a condition of perpetual bondage.[16] degradation of freemen into serfs remained a disagreeable possibility as long as the system endured.
the agricultural population actually consisted of three elements. first there was the lord; secondly, his free tenants; and thirdly, the villeins or serfs. the main difference between the two latter classes was that the free tenants had proprietary rights in their holdings and chattels. they could buy, sell, or exchange without the lord's intervention; and, in the event of a dispute, they could sue him or anyone in the courts. nevertheless, they stood in some degree of subjection to the lord, since the geld due to the state was paid through the lord as responsible to the sheriff for all who held land within the manor.
another very important distinction between the free tenants and the villeins was the payment of merchet on the marriage of daughters, which signified that the offspring of such marriages would be the lawful property of the lord. from this payment, and all that it implied, the free tenants were exempt.
predial services, on the other hand, might be rendered as well by free tenants as by villeins. this is shown by an entry in domesday:
"de hac terra [longedune] tempore regis edwardi tenebant ix liberi homines xviii hidas et secabant uno die in pratis domini sui et faciebant servitium sicut eis precipiebatur."
much would depend on the capital possessed by the free tenant, who might elect to make good any deficiency by corporal labour. the villein had no capital, and was simply an instrument, like the cattle of which he had charge, in the working of the estate. he was bound to the soil with which all his interests were linked; and he was regarded in the light of an investment, in which the lord had a perpetual stake. it was the lord who furnished him with the means of gaining a livelihood, and, in return for this accommodation, the lord demanded from him, and his children after him, lifelong service.
from the "rectitudines singularum personarum," an eleventh-century document, we learn that the cotsetle, for his holding of about five acres, was required to labour for his lord on one day a week all through the year,[17] and this was known as week-work. he had also to give what was called boon-work—namely, three days a week in harvest. another type of unfree tenant was the gebur, who held a yardland of some thirty or forty acres, which, upon his entrance, was stocked with two oxen, one cow, six sheep, tools and household utensils. his week-work amounted to two or three days a week, as the season required; in winter, he had "to lie at his lord's fold," when bidden; and he had to contribute his quota of boon-work. certain payments also had to be made.
the first attempt to regulate wages was made in the statute of 12 richard ii., cc. 3-7, the preamble of which affirms that "the servants and labourers will not, nor by a long season would, serve and labour without outrageous and excessive hire, and much more hath been given to such servants and labourers than in any time past, so that for scarcity of the said servants and labourers the husbands and land tenants may not pay their rents nor unnethes live upon their lands, to the great damage and loss as well of their lords as of all the commons; also the hires of the said servants in husbandry have not been put in certainty before this time."
the "hires" were now defined, and this act penalized masters who paid labourers at a higher rate than was allowed under it. the scale of wages varied in different reigns. here we may confine ourselves to the provisions of the statute of 11 henry vii., which not only determined the maximum payments, but sanctioned reductions on legitimate grounds. thus regard was had to the current wages in the locality, which the employer was under no obligation to exceed. less was to be paid at holiday than at other times; and if a man were lazy in the morning or lingered over his meals, he might be mulcted at his master's discretion.
premising that the purchasing power of a penny in the fifteenth century was about twelve times as much as it is now, we are able to form some idea of the economic position of the different classes which were the subjects of this legislation. the bailiff, it appears, might have a salary of 26s. 8d.; the common servant in husbandry cost 16s. 8d. and 4s. for clothes; and the artisan received per day 5d. in the summer and 6d. in the winter. this brings us to the hours of labour, which depended on the season, and were also regulated by statute. these were from 5 a.m. till between 7 and 8 p.m. from the middle of march to the middle of september, half an hour being allowed for breakfast, and an hour and a half for dinner and a siesta—an indulgence countenanced from may to august. during the winter, the rule was that work was to be carried on whilst there was daylight.
mention has been made of holidays. these, though inevitable, were evidently regarded as seasons of danger, since the favourite recreations of labourers, if left to their own devices, were poaching and politics. against these twin evils the king's counsellors took precautions in an act (13 rich. ii., st. i., c. 13), of which the preamble ran:
"forasmuch as divers artificers, labourers, servants, and grooms, keep greyhounds and other dogs, and on the holy days, when christian people be at church hearing divine service, they go a-hunting in parks, warrens, and coningries of lords and others to the very great destruction of the same, and sometimes under such colour they make their assemblies, conferences, and conspiracies for to rise and disobey their allegiance, &c."
hence none but laymen with 40s. and clerks with ￡10 were suffered to keep dogs or use ferrets, nets, harepipes, cords, or other engines to destroy deer. instead of engaging in such perilous diversions, servants and labourers were ordered to "have bows and arrows and to use the same on sundays and holy days, and leave all playing at tennis or football and other games called quoits, dice, casting of the stone, kailes (skittles) and other importune games." swords and daggers were prohibited "but in time of war for the defence of the realm of england"—a wise measure when the country was infested with vagrants and there were so many liveried retainers prompt to resent a real or imaginary affront.
