Book 1 — CHAPTER VIII. THE UNFREE. THE SERF.

We have considered the case of the wife, the son and the daughter^[323], as far as can be done until we come to deal with the family relations; and we have examined the position of one peculiar class of the unfree, namely the comites or gesíðas of the kingly leaders. Another, but less favoured, class remain to be noticed, those namely whom the Latin authors designate by the terms Libertus and Servus, and who, among all the nations of Germanic origin, are found under the corresponding denominations of Lazzi or Dió, Læt or Ðeów, Lýsingr or þræl. These have no honourable, no profitable service to compensate for the loss of independence, but form the large body of hired cultivators, the artizans and handicraftsmen in various branches of industry, the prædial, even the domestic or menial servants of the free landowner.

The grounds as well as the degrees of slavery (by which term I mean dependence, the being in the mund of another, and represented by him in the folcmót) are various; one, viz. poverty arising 186from over-population, has been noticed in the last chapter; but I agree with Eichhorn^[324] and Grimm^[325], in attributing the principal and original cause of slavery in all its branches to war and subsequent conquest. Another and important cause is forfeiture of liberty for crime; and the amount of dependence, the gentler or harsher condition of the serf, depends to a great extent upon the original ground of servitude. If the victor has a right to the life of the vanquished, which by the law of nature is unquestionably the case, he possesses à fortiori a perfect claim to the person, the property and the services of his prisoner, if his self-interest or the dictates of humanity induce him to waive that right^[326]. These remarks apply no doubt, in their full force, only to our pagan forefathers; but even Christianity itself did not at once succeed in rooting out habits which its divine precepts of justice and mercy emphatically condemn. Beda, in his desire to prove the efficacy of the mass for the dead^[327], tells an interesting story of a young noble 187who was left severely wounded on the field, after a battle between Ecgfrið of Northumberland and Æðelred of Mercia, in the year 679. Fearful of the consequences should his rank be discovered, he disguised himself in the habit of a peasant, and assumed that character, at the castle of the earl into whose hands he fell; declaring that he was a poor, and married man^[328], who had been compelled to attend the army with supplies of provisions. But his language and manners betrayed him, and at length, under a solemn promise of immunity, he revealed his name and station. The reply of the earl is characteristic; he said: “I knew well enough from thy answers that thou wert no rustic; and now indeed thou art worthy of death, seeing that all my brothers and relations were slain in that battle: yet I will not kill thee, lest I should break the faith that I have pledged.” Accordingly when his wounds were healed, his captor sold him to a Frisian in London, who, finding that he could not be bound, finally released him on his parole and permitted him to ransom himself. Whatever the motive, it is thus clear that the victor possessed the right of life and death over his captive, even when taken in cold blood; and the traditions, as well as the historical records of the northern nations are filled with instances of its exercise.

188It does not however by any means follow that the total defeat of a hostile tribe resulted in the immediate and direct enslaving of all the survivors: as in the example just cited, the blood-feud no doubt frequently led to the murder of the captive chiefs and nobles, even if less justifiable motives did not counsel the same miserable means of removing dangerous competitors^[329]; but the heavy doom of death must have been one of the melancholy privileges of the noble class: and even though many of the common freemen may have been sold or retained as slaves at the caprice of the captors, still we cannot suppose this to have been the lot of any but those who had actually taken part in combat; no natural or national law could extend these harsh provisions to the freemen who remained quiet at home. Nevertheless even these were liable to be indirectly affected by the hostile triumph, inasmuch as the conquerors appear invariably to have taken a portion, more or less great, of the territory occupied by the conquered^[330]: and wherever this is 189the case to the extent of depriving the cultivator of means sufficient for his support, he has no resource but to place himself in dependence upon some wealthier man, and lose, together with his lot or κληρος, the right to form an integral part of the state: the degree of his dependence, and the consequent comparative suffering to himself, may vary with a multitude of circumstances; but the one fact still remains, viz. that he is in the mund or hand of another, represented in the state by that other, and consequently, in the most emphatic sense of the word, unfree.

It is now generally admitted that this must have been the case with the whole population in some districts, who thus became dependent upon a few intrusive lords: but still these populations cannot be said to have stood in that peculiar relation to the conquerors, which the word servus strictly implies towards an owner. The utmost extent of their subjection probably reached no further than the payment of tribute, the exclusion from military duty and the standing under a protectorate^[331]. Inglorious and easy, when once the dues of the lord were paid, they may even have rejoiced at being spared the danger of warfare and the laborious suit 190of the folcmót, and forgotten that self-government is the inherent right and dignity of man, in the convenience of having others to defend and rule them. Moreover the territorial subjection was not necessarily a juridical one: indeed some of the Teutonic conquerors recognized as positive law, the right of even the dependent Romans and Provincials to be judged and taxed according to the rules and maxims of Roman, not Salic or Langobardic, jurisprudence: and this, when carried out in the fullest detail with respect to the various tribes at any time united under one supreme head, constitutes what is now called the system of Personal Right, whereby each man enjoyed the law and forms of law to which he was born, without the least reference to the peculiar district in which he might happen to live; in other words, that he carried his own law about, whithersoever he went, as a quality attached to his own person, and not in the slightest degree connected with or dependent upon any particular locality. In this way Alamanni, Baiowari, Saxons, Frisians, Langobards, Romans, Gallic provincials and Slavonic populations, were all united under the empire of the Salic and Ripuarian Franks^[332]. The peculiar circumstances under which the conquest took place must, of course, have defined the relations under which the subject stood to the ruling state. It is conceivable that the conquerors might not want land, but be contented with glory and 191pillage; or they might not be able to seize and retain the conquered territory: or again they may have required new settlements for themselves and their allies, to obtain which they waged a war of extermination. Thus the Suevi, although unable to expel the Ubii altogether from their territory, yet succeeded in rendering them tributary^[333]; while in Thuringia, the Franks and their Saxon allies seized all the land, slaying, expelling or completely reducing the indigenous inhabitants to slavery. Another and curious instance may be cited from a comparatively late period, when the little island of Man was invaded, conquered and colonized by the Norwegian Godred. “Godredus sequenti die optionem exercitui suo dedit, ut si mallent Manniam inter se dividere et in ea habitare, vel cunctam substantiam terrae accipere et ad propria remeare. Hiis autem magis placuit totam insulam vastare, et de bonis illius ditari, et sic ad propria reverti. Godredus autem paucis qui secum remanserunt de insulanis australem partem insulae, et reliquiis Mannensium aquilonarem tali pacto concessit, ut nemo eorum aliquando auderet iure haereditario sibi aliquam partem terrae usurpare. Unde accidit ut usque in hodiernum diem tota insula solius regis sit, et omnes redditus eius ad ipsum pertineant^[334].” The not being able to dispose of property hereditarily is the true badge and proof of slavery.

192Tacitus draws a great distinction between the different degrees of servitude among the Germans. He tells us that the unsuccessful gambler who had staked and lost his liberty and the free disposal of his own body upon one fatal cast of the dice, would voluntarily submit to be bound and sold^[335], but that it was not usual for them to reduce their other serfs to the condition of menials; they only demanded from them a certain amount of produce (or, unquestionably, of labour in the field or pasture), and then left them the enjoyment of their own dwellings and property^[336]. The general duties of the house, beyond such supplies, which were provided for among the Romans by the ministeria per familiam descripta, were left among the Germans to the wife and children of the householder^[337]. It will be desirable to follow a somewhat similar distinction in 193treating of the different kinds of slaves; and having shown that one class of the unfree are those who have been partially dispossessed by conquest, but retain their personal freedom in some degree, to proceed to those who are personally unfree, the mere chattels of a lord who can dispose of them at his pleasure, even to the extent of sale, mutilation and death. The class we have hitherto been observing is that intended by the term Læt in Anglosaxon, Litus, Lito, Lazzo, etc. in German monuments^[338], and the Laeti of the Romans, applied by them to the auxiliary Germans settled on imperial land, and bound to pay tribute and perform military service. They formed, as Grimm has well observed, a sort of middle class among the unfree; comprising the great majority of those who, without being absolutely their own masters, were yet placed somewhat above the lowest and most abject condition of man, which we call slavery. This condition among our forefathers was termed þeówet; the servus was þeów, the ancilla þeówen; or, as the original serfs of the English were the vanquished Britons, Wealh and Wyln.

Without confining ourselves to the definition in the law of Henry the First, we may distribute the different kinds of slaves into classes, according to the different grounds of slavery^[339]. Thus they are 194serfs casu or natura, and the serfs casu comprise serfs by the fortune of war, by marriage, by settlement, by voluntary surrender, by crime, by superior legal power, and by illegal power or injustice. The remaining class are serfs natura, or by birth.

The serfs by fortune of war were those who were not left under the public law to enjoy a portion of their ancient freedom and possessions, but were actually reduced to a state of prædial or menial servitude by their captors, and either reserved for household drudgery or sold, at their arbitrary will. The Cassandra and Andromache of Grecian story stand here side by side with our own German Gudrún. This part of the subject has received sufficient illustration from the tale of the thane Imma, already quoted from Beda.

The serf by marriage was the free man or free woman who contracted that bond with a slave: in this case the free party sank to the condition of the unfree, among some at least of the German races. The Salic law is explicit upon this point both with respect to man and woman^[340]: among the Ripuarian Franks it was enacted thus^[341]: “If a free Ripuarian woman hath followed a Ripuarian serf, let the king or the count offer unto her a sword and a spindle: if she accept the sword, let her therewith slay the serf; if the spindle, let her abide with him in servitude.” 195In this case the Burgundian law^[342] commanded both parties to be slain; but if the relatives of the woman would not put her to death, she became a serf of the king. Saxo Grammaticus cites a similar law for Denmark^[343]. There is no evidence of the Anglosaxon practice in this respect, but it appears unlikely that the case should be of common occurrence. Probably purchase and emancipation always preceded such marriages, and the law of Henry the First makes no mention of this among the grounds of slavery^[344].

The serf by settlement is he who has taken up his abode in a district exclusively inhabited by the unfree; and to this refers the German expression “Die luft macht eigen,” i. e. the air makes the serf. There is no distinct Anglosaxon provision on the subject, but perhaps we may include in this class some at least of those who taking refuge on a lord’s land, and among his sócmen, without any absolute and formal surrender of their freedom, did actually become his serfs and liable to the services due to him from all their neighbours^[345]. The generality 196however of such cases fall under the next following head, viz.—

The serfs by surrender, the sua datione servus of Henry’s law, the servus dedititius, and giafþræl of the Norse law. Among these Grimm numbers the serfs whose voluntary submission so much surprised the Roman philosopher. Even the law of the Germans, so generally favourable to liberty, contemplates and provides for the case of such a voluntary servitude^[346]. This might arise in various ways. For example, a time of severe scarcity, such as are only too often recorded in our ancient annals, unquestionably drove even the free to the cruel alternative of either starvation or servitude: “Subdebant se pauperes servitio, ut quantulumcunque de alimento porrigerent,” says Gregory of Tours^[347]; Gildas tells us a similar tale of the Britons^[348]; and even as late as the Norman conquest we find Geatflǽd, a lady, directing by her will the manumission of all those who had bent their heads in the evil days for food^[349]. 197Another was, no doubt, debt, incurred either through poverty or crime; and when the days of fierce and cruel warfare had passed away, this must have been the most fertile source of servitude. I have not found among the Anglosaxon remains any example of slavery voluntarily incurred by the insolvent debtor, but the whole course of analogy is in favour of its existence, and Marculf supplies us with the formulary by which, among the Franks, the debtor surrendered his freedom to the creditor. It may be presumed that this servitude had a term, and that a certain period of servile labour was considered equivalent to the debt. The case of crime was undoubtedly a very common one, especially as those whose necessities were the most likely to bring them in collision with the law were those also who were least able to fulfil its requirements, by payment of the fines attached to their offences. The criminal whose own means were insufficient, and whose relatives or lord would not assist him to make up the legal fine he had incurred, was either compelled to surrender himself to the plaintiff, or to some third party who paid the sum for him, by agreement with the aggrieved party. This was technically called þingian^[350], and such a serf was 198called a witeþeów, convict, or criminal slave. These are the servi redemptione of Henry the First.

Serfs by force or power are not those comprised in the first class of these divisions, or serfs by the fortune of war: these of course have lost their freedom through superior force. But the class under consideration are such as have been reduced to servitude by the legal act of those who had a right to dispose of them; as, for instance, a son or daughter by the act of the father^[351]. It is painful to record a fact so abhorrent to our Christian feelings, but there cannot be the least doubt that this right was both admitted and acted upon. The father, upon whose will it literally depended whether his child should live or not, had a right at a subsequent period to decide whether the lot of that child should be freedom or bondage^[352]. Illegitimate children, the offspring of illicit intercourse with his wyln or þeówen, may have formed the majority of those thus disposed of by a father: but in times of scarcity, it is to be feared that even the issue of legitimate 199marriage was not always spared^[353]. The Frisians, when oppressed by the amount of Roman tribute, sold their wives and children: “Ac primo boves ipsos, mox agros, postremo corpora coniugum aut liberorum servitio tradebant^[354]:” this is however an exceptional case, and the sale of wives and children appears only to have been resorted to as a last resource. But the very restriction to the exercise of this right, within particular limits of time—which we may believe the merciful intervention of the church to have brought about—speaks only too plainly for its existence in England. Even as late as the end of the seventh century, and after Christianity had been established for nearly one hundred years in this country, we find the following very distinct and clear recognitions of the right, in books of discipline compiled by two several archbishops for the guidance of their respective clergy. In the Poenitential of Theodore, archbishop of Canterbury, occurs this passage: “Pater filium suum septem annorum, necessitate compulsus, potestatem habet tradere in servitium; deinde, sine voluntate filii, licentiam tradendi non habet^[355].” In the somewhat 200later Confessionale of Ecgberht, archbishop of York, we find: “Pater potest filium suum, magna necessitate compulsus, in servitutem tradere, usque ad septimum annum; deinde, sine voluntate filii, eum tradere non potest^[356].” It is however very remarkable that in the Poenitential of the same Ecgberht the sale of a child or near relative is put down as an offence punishable by excommunication^[357]. These are the servi alterius datione of Henry the First.

The next head includes the serfs by reason of crime. The distinction between these and the class of criminals who became slaves through compact or redemption, is that in their case servitude was the direct punishment of their offence, and not merely an indirect and mediate consequence. It seems to me at least that this sense strictly lies at the foundation of two laws of Eádweard, Ælfred’s son; of these the former says^[358], “If any one through conviction of theft forfeit his freedom, and deliver himself up, and his kindred forsake him, and he 201know not who shall make bót for him; let him then be worthy of the þeówwork which thereunto appertained; and let the wer abate from the kindred.” Again, “If a freeman work upon a festival day, let him lose his freedom, or pay the wíte or lahslite^[359].” This alternative is an alleviation of the strict law: but as forfeiture undoubtedly followed upon theft and other offences, the thief could not expect to make bót for himself, and was always exposed to the danger of incurring slavery, should another make it for him. It is however possible that his relations may have interfered to save him, without the reducing him to a servus dedititius; or even if he were so reduced, he became the serf of him that engaged (þingode) for him; whereas, if not rescued at all, he must have been a fiscal serf, in the hands of the crown or the geréfa, its officer. There exists therefore a perceptible difference between the wíteþeów whom the law made so, (even though it permitted a merciful alternative,) and the wíteþeów whose punishment would have been a mulct which exceeded his means. The law of other German tribes numbers slavery among its punishments without any reservation at all: thus among the Visigoths, he that assisted in the escape of a serf, and neither restored him nor his worth to the owner, was to become a slave in his place^[360]. By the Bavarian law, he that could not pay a wergyld due from him, was to be enslaved together with his wife and children^[361]. Grimm^[362] cites the following case: 202“Richilda, quae libertatem suam fornicando polluit, amisit ... filiae illorum liberae permaneant, ... nisi forte adulterio vel fornicatione polluantur.” It is true that the Anglosaxon laws do not give us any enactment of a corresponding nature: nevertheless I entertain no doubt that incontinence was a ground of slavery in the case both of man and woman. Toward the end of the ninth century, Denewulf, bishop of Winchester, leased the lands of Alresford to a relative of his own, on condition of a yearly rent: “Is equidem insipiens, adulterans, stuprum, propriam religiose pactatam abominans, scortum diligens, libidinose commisit. Quo reatu, omni substantia peculiali recte privatus est, et praefatum rus ab eo abstractum rex huius patriae suae ditioni avidus devenire iniuste optavit^[363].” However unjust the canons of Winchester might think it, it is clear that the Witena-gemót did not; for the bishop was obliged to pay 120 mancusses in gold to the king, to have back his own land. Again in the year 1002, we hear of a lady forfeiting her lands to the king, by reason of incontinence^[364]. The consequences of this destitution can hardly have been other than servitude; and it may be at once admitted that where there were no lands to forfeit, servitude was the recognized punishment of the offence. Theodore^[365] when apportioning the penance due to it, says, “Si intra viginti annos puella et adolescens peccaverint, i annum, et in secundo iii quadragesimas ac legitimas ferias. Si propter hoc peccatum 203servitio humano addicti sunt, iii quadragesimas.” Again, “Maritus si ipse seipsum in furto aut fornicatione servum facit, vel quocunque peccato^[366],” etc.

The last division of the servi casu comprises those who have been reduced to slavery by violence or fraud, in short illegally. Illegitimate children, poor relations, unfriended strangers, young persons without power of self-defence, may thus have been seduced or forced into a servile condition of life, escape from which was always difficult, inasmuch as there is necessarily a prima facie case against the serf, and he can have no standing in the court composed only of the free. To this head seem referable the passages I have already alluded to in Theodore’s Poenitential^[367], and which I will now cite at length: “Si quis Christianus alterum Christianum suaserit, ac in alteram regionem seduxerit, ibique eum vendiderit pro proprio servo, ille non est dignus inter Christianos requiem habere, donec redimat eum et reducat ad proprium locum.” And again: “Si quis Christianus alterum Christianum vagantem reppererit, eumque furatus fuerit ac vendiderit, non debet habere inter Christianos requiem, donec redimat eum, et pro illo furto septem annos poeniteat^[368].”

The other great division includes all the servi natura, nativi, or serfs by reason of unfree birth; and as these are necessarily the children either of parents who are both unfree, or (under particular circumstances) of one unfree parent, it follows that 204their hereditary condition may arise from any one of the conditions heretofore under examination. All the legitimate children of two serfs are themselves irrevocably serfs^[369]: but some distinctions arise where the parents are of unequal condition, as where the mother is free, the father unfree, and vice versa. In this respect the law was very different among the different tribes: the Swedish law declared in favour of liberty^[370], the German generally the other way^[371]. The Sachsenspiegel decides that the children follow the father’s right^[372], and similarly the law of Henry the First^[373] has, “Si quis de servo patre natus sit et matre libera, pro servo reddatur occisus;” and again, “Si pater sit liber et mater ancilla, pro libero reddatur occisus;” on the general principle that “semper a patre non a matre generacionis ordo texitur,” which Fortescue confirms, saying^[374], “Lex Angliae nunquam matris, sed semper patris conditionem imitari partum iudicat, ut ex libera etiam ex nativa non nisi liberum liber generet, et non nisi servum in matrimonio procreare potest servus.” Fleta’s argument rests upon the same doctrine^[375]. Glanville however appears to adopt the contrary view^[376], which agrees with the maxim 205of the civil law, “Partus sequitur ventrem.” To the English principle I am bound to give my adhesion, inasmuch as the natural and the original social law can recognize none but the father, either in the generation, or in the subsequent rule, of the family: whatever alleviation the practices of chivalry, the worship of the Virgin mother, and the Christian doctrine of the equality of man and woman before God, may have introduced, the original feeling is on the father’s side, and the foundations of our law are based upon the all-sufficiency of his right. A woman is in the mund or keeping of a man; society exists for men only, that is, for women merely as far as they are represented by a man.

That this original right was interfered with by the law of property is not denied. But here different cases are to be considered. First, whether the serf or nativa is the property of the party who unites with him or her. Secondly whether the free party unite with some other owner’s serf or neif; next, whether the issue are born in wedlock or not; and lastly how far the public law and right is involved in the question of freedom and servitude. The last consideration in fact involves the first, because, under the first, except in the case of hardly intelligible neglect, marriage could never take place between two unequal parties at all: emancipation must have preceded the ceremony; while the civil law would of course rule that the ceremony itself, taking place by consent, was an act of emancipation not to be gainsaid. It is therefore with regard 206to third parties only that a question can arise^[377]. There is no proof that such a question ever did arise among the Anglosaxons, or that it was thought needful to provide for it by law: and the earlier evidences with which this book has especially to do are either entirely silent, or so general in their expressions that we cannot decide from them upon a particular case. In fact the whole argument is reduced to the second head, viz. where one parent is the property of a third party, and where the child is born in lawful wedlock; for a child not so born is not subject to any law which binds the parents, is nullius filius, and can as little be injured as advantaged by the law.

In the strict Anglosaxon law there is no definite decision on these points: the codes of other German races, at the oldest period, are equally silent. In later times indeed we have determinations; but these, as we have observed, are contradictory. Perhaps we may take the doctrine of the Sachsenspiegel, coinciding as it does with the opinion of many, probably a majority, of our own law-sages, as the original one, especially as it is the only one in accordance with other details of family life, and with the supreme law of nature itself which leaves 207to the father the decision as to the life or death of the child, as to its liberty or slavery. In this sense then I agree with Sir John Fortescue and Sir Edward Coke^[378]. It is to be remembered that we are dealing now with the condition of the offspring, not of the parent: the uncertainty that prevails with respect to the latter, in the Anglosaxon law, and the contradictory enactments of other German codes have been already noticed.

But all that has been said applies solely to the case of children born in lawful wedlock; and almost all the apparent contradictions which have been noticed in our own law, arise from a want of clear distinction on this point. The child of a free father and unfree mother, if the parents were not married, remained to the lord of the neif, according to our expressive proverb, “Mine is the calf that is born of my cow^[379].” In Fleta’s words^[380] the distinction is drawn most clearly, and they may therefore stand here in place of my own: “Servi autem aut nascuntur aut fiunt; nascuntur quidem ex nativo et nativa solutis vel copulatis, et eius erit servus in cuius potestate nasci contigerit^[381]; dum tamen de soluta nativa, domini loci, quia sequitur conditionem matris, a quocunque fuerit genitus, libero vel nativo^[382]. Si autem copulati fuerint et 208genitus fuerit partus a libero, licet a nativa, partus erit liber; et si de servo et libera in matrimonio, servus erit.” Thus, here again the offspring follows the father, as soon as there is a marriage to determine that there is an offspring at all, in law; but if there be no marriage, the chattel thrown into the world, like any other waif or stray belongs domino loci; it has a value, can be worked or sold; it is treasure-trove of a sort, and as it belongs to nobody else, falls to the lord, as a compensation probably for the loss of his neif’s services during pregnancy and the nonage of the child^[383].

Whatever the origin of serfage may have been, it can hardly be questioned that the lot of the serf was a hard one; and this perhaps not so much from the amount of labour required of him, as from the total irresponsibility of the master, in the eye of the law, as to all dealings between himself and his þeów. The Christian clergy indeed did all they could to mitigate its hardships, but when has even Christianity itself been triumphant over the selfishness and the passions of the mass of men! The early pagan Germans, though in general they treated their serfs well, yet sometimes slew them, under the influence of unbridled passion: “Verberare servum ac vinculis et opere coercere rarum. Occidere solent, non disciplina et severitate, sed 209impetu et ira, ut inimicum, nisi quod impune est^[384].” The church affixed a special penance to the manslaughter of a woman by her mistress, impetu et ira,—an event which probably was not unusual, considering the power of a lord over his þeówen or female slave,—and generally, a penance for the slaughter of a serf by his lord without judicial authority^[385].

In contemplation of law, in fact, the slave is the absolute property of his lord, a chattel to be disposed of at the lord’s pleasure, and having a value only for the benefit of the lord, or of some public authority in his place. The serf cannot represent himself or others: his interests must be guarded by others, for he himself has no standing in any public court. He is not in any friðborh, or association for mutual guarantee, for he has nothing of his own to defend, and no power to defend what another has. If he be slain by a stranger, his lord claims the damages, and not his children: if the lord himself slay him, it is but the loss of so much value,—a horse, an ox, gone—more or less. Out of his 210death no feud can arise, for the relatives who allowed him to fall into, or remain in slavery, have renounced the family bond, and forfeited both the wergyld and the mund. If he be guilty of wrong, he cannot make compensation in money or in chattels; for he can have no property of his own save his skin: thus his skin must pay for him^[386], and the lash be his bitter portion. He cannot defend himself by his own oath or the oaths of friends and compurgators, but, if accused, must submit to the severe, uncertain and perilous test of the ordeal. And if, when thus hunted down, he be found guilty, severe and ignominious punishment,—amounting, in a case of theft, to death by flogging for men, by burning for women,—is reserved for him^[387]. Naturally and originally there can be no limitation in the amount or the character of labour imposed upon him, and no stipulation for reciprocal advantage in the form of protection, food or shelter. Among the Saxons the wíteþeów at least appears to have been bound to the soil, adscriptus glebae^[388], conveyed with it under the comprehensive phrase “mid mete and mid mannum:” though in some few cases we can trace a power, vested perhaps only in certain public authorities, of transferring the slave from one estate to another^[389]. Last, but most fearful of all, 211the taint of blood descended to his offspring, and the innocent progeny, to the remotest generations, were born to the same miserable fate as bowed down the guilty or unfortunate parent.

But yet there was a gleam of hope: one solitary ray that made even the surrounding darkness tolerable, and may have cheered the broken-hearted serf through years of unrequited toil and suffering. The law that reduced him to slavery made it also possible that he should be restored to freedom. It did not shut from him this blessing, however distant it might seem. Tacitus knew of liberti among the Germans, men who had been slaves, had been manumitted, and were free^[390]. Thus in yet pagan times, general kindliness of disposition, habits of domestic intercourse, perhaps the suggestions of self-interest, may have tended to raise the condition of the serf even to the restoration of freedom: but it was the especial honour and glory of Christianity, that while it broke the spiritual bonds of sin, it ever actively laboured to relieve the heavy burthen of social servitude. We are distinctly told that Bishop Wilfrið, on receiving the grant of Selsey from Caedwealha of Wessex, immediately manumitted two hundred and fifty unfortunates, whom he found there attached to the soil,—that those, whom by baptism he had rescued from servitude to devils, might by the grant of liberty be rescued from servitude to man^[391]. In this spirit of charity, the clergy obtained respite from labour for the þeów on the 212Sabbath, on certain high festivals and on the days which preceded or followed them^[392]; the lord who compelled his þeów to labour between the sunset on Saturday and the sunset on Sunday, forfeited him altogether^[393]; probably at first to the king or the geréfa; but in the time of Cnut the serf thus forfeited was to become folkfree^[394]. To their merciful intervention it must also be ascribed that the will of a Saxon proprietor, laic as well as clerical, so constantly directs the manumission of a number of serfs, for the soul’s health of the testator^[395]; Ælfred even goes so far as to give free power to the serf of bequeathing to whomsoever he pleases, whatever may have been given him for God’s sake, or he may have earned in his own moments of leisure^[396]; and this provision, which probably implies a prohibition to the lord of removing his labourer arbitrarily from a plot of ground well cultivated by his own efforts, tends to secure to the unfortunate serf some interest in the produce of his industry: the Hungarian will recognize in it the spirit of Maria Theresia’s Urbarium. It is moreover obvious from many surviving documents, that, in the later periods, the serf could purchase his own release^[397], 213at least with the lord’s consent^[398], or be bought by another for the purpose of manumission^[399], or even be borrowed on pledge for a term of years^[400], during which his labour might be actively employed in laying up the means of future freedom. It cannot indeed be denied that the slave might be sold like any other chattel, and that even as late as Æðelred and Cnut, the law ventured to prohibit no more than the selling him into heathendom, or without some fault on his part^[401]: nor can we believe that acts of the grossest oppression and tyranny were unfrequent. But from what has been already cited, it must be evident that there was a constantly growing tendency in favour of freedom, that the clergy suggested every motive, and the law made every possible effort, at least to diminish the more grievous circumstances of servitude. It is moreover to be borne in mind that a very large proportion of the þeówas at any given time, were in reality criminal serfs, convicts expiating their offences by their sufferings. Taking all the circumstances into consideration, I am disposed to think that the mere material condition of the unfree population was not necessarily or generally one of great hardship. It 214seems doubtful whether the labour of the serf was practically more severe, or the remuneration much less than that of an agricultural labourer in this country at this day: his lord was bound to feed him for his own sake, and if, when old and worn out, he wished to rid himself of a useless burthen, he could by an act of emancipation hand over his broken-down labourer to the care of a Church which, with all its faults, never totally lost sight of the divine precepts of charity^[402]. We are not altogether without the means of judging as to the condition of the serf, and the provision made for him; although the instances which we may cite are not all either of one period, or one country, or indeed derived from compilations having the authority of law, they show sufficiently what opinion was entertained on this subject by some among the ruling class. In the prose version of Salomon and Saturn^[403], it is said that every serf ought to receive yearly seven hundred and thirty loaves, that is, two loaves a day, beside morning meals and noon meals; this cannot be said to be a very niggardly portion. Again, the valuable document entituled, “Rectitudines singularum personarum^[404],” gives details respecting 215the allowances made to the serfs in various prædial or domestic capacities, which would induce a belief not only that they were tolerably provided for, but even enabled by the exertion of skill and industry to lay up funds of their own towards the purchase of their freedom, the redemption of their children, or the alleviation of their own poverty. From the same authority and others, we may conclude that on an estate in general, serfs discharged the functions of ploughman, shepherd, goatherd, swineherd, oxherd and cowherd, barn-man, sower, hayward, woodward, dairymaid, and beadle or messenger; while the geneát, cotsetla, gebúr, beócere and gafolswán were probably poor freemen from whom a certain portion of labour could be demanded in consideration of their holdings^[405], or a certain rent (gafol) reserved out of the produce of the hives, flocks or herds committed to their care: and these formed the class of the Læt and Esne, poor mercenaries, serving for hire or for their land, but not yet reduced so low in the scale as the þeów or wealh. It is not only probable that there would be distinctions in the condition of various serfs upon the same estate, but even demonstrable: it can hardly be doubted that men placed in situations of some trust, as the ploughman, oxherd or beadle, were in a somewhat higher class, and of better condition, than the mere hewers of wood and drawers 216of water. Now in a charter of the year 902, we find an interesting statement, which I must take leave to cite^[406]: Denewulf bishop of Winchester and his Chapter had leased land at Eblesburne to Beornwulf, a relative of the bishop: the Chapter sent word to Beornwulf that the men, that is the serfs, were to remain attached to the land—“ðæt ða men móston on ðam lande wunian”—whether he, or any other, held it: “ðonne wǽron ðǽr þreo wíteþeówe men búrbǽrde, ⁊ þreo þeówbǽrde, ða me salde bisceop ⁊ ða hiwan tó rihtre ǽhte ⁊ hira teám:” “Now there were three convicts búrbǽrde and three þeówbǽrde, whom the bishop and the brethren gave me, together with their offspring.” The expressions used in this passage seem to show that some of the wíteþeówe men upon this estate enjoyed a higher condition than others^[407], being cultivators or boors, while the others were more strictly slaves. The very curious and instructive dialogue of Ælfríc numbers among the serfs the yrðling or ploughman, whose occupation the author nevertheless places at the head of all the crafts, with perhaps a partial exception in favour of the smith’s^[408].

Servitude ceased by voluntary or compulsory manumission on the part of the lord; the latter case being that where the services of the slave were forfeited through the misconduct of the master. 217And as loss of liberty must be considered in the main as a consequence of the public law, understood in the general, and expressed in the particular case, so must it I think be asserted, that at first emancipation depended in some degree upon the popular will as well as the mercy or caprice of private individuals. It is no doubt true, that at a period when what we now call crimes were rather considered in the light of civil injuries, for which satisfaction was due to the parties injured, it might seem reasonable to leave the latter in possession of the power to assess the minimum, at least, of his own satisfaction: to allow him to decide how long a period of servitude he would content himself with, if he chose to renounce the right he possessed of claiming an endless one; or lastly, to reward good and faithful service by cancelling the consequences of an earlier wrong. But emancipation has two very different effects: it not only relieves the serf from personal burthens and disabilities, but it restores or introduces a citizen to political and public rights. In a state of society where landed possession and the exercise of such rights are inseparable, a grave difficulty arises, viz. how can provision be made for the newly emancipated, and now free man? If the community will consent, and possess the means, to create a new free Hide for his occupation, of course the matter can be managed; but this consent renders the emancipation in reality the act of the state, not of the manumittor. Or the lord on restoring freedom to his serf may endow him with a portion of his own 218land, sufficient for easy or even wealthy subsistence; but this will not make him fully a free man, give him his full position in the πολιτευμα or polity, and place him on a level with the free inhabitants of the Mark.

Till periods very late in comparison with that which is assumed in the course of this argument, a similar principle prevails in our legislation upon this subject. Glanville says, “It is also to be observed that a man may enfranchise his serf in respect of the persons of himself or his heirs, but not in respect of others. For if any one, having once been a serf, and afterwards having attained to freedom in this manner, should be produced in court against a third party to support a cause, or for the purpose of making any law of the land, he may justly be removed therefrom, if his birth in villenage should be objected to and proved against him in the court, even though the serf so enfranchised should have come to be promoted unto a knight’s degree^[409].”

Later still, liberty seems considered as a privilege the value of which might be diminished by its extension; and Fleta gives as a reason why the lord is bound to pursue his fugitive serf, “lest by negligence of the lords, serfs should prevail to assert their own freedom^[410].”

On consideration therefore of all the facts, we must conclude that where full and complete manumission was intended, the transaction could only be 219completed in the presence and with the co-operation of the community, whereby all claims besides those of the manumitting lord would be formally estopped for the future. And this would be nearly equivalent to the admission (rare indeed) of a metic or other stranger to the full rights of citizenship at Athens, which could hardly have effect without a ψήφισμα or deliberate vote of the whole people^[411]. Accordingly even in the laws of William the Conqueror and Henry the First we find evidence that the completest publicity was given to formal manumissions^[412]; and it is not unreasonable to believe that this refers back to a time when such publicity may have consisted in the presentation of the serf before the assembled folcmót, and their expressed or implied assent to the solemn act.

Practically however, it is probable that the dissolution of servitude did not absolutely confer all the privileges of freedom. The numerous acts of manumission directed by the wills of great landowners 220are totally inconsistent with the notion of any interference on the part of the assembled people, as necessary to their validity: the instances, it is true, are mostly of modern date, but still we hear of manumissions by wholesale at very early periods, where nothing but the lord’s own will can possibly be thought of^[413]. It seems therefore probable that a certain amount of dependence was reserved; that the freedman became relieved from the harsher provisions of his former condition, but remained in general under the protection and on the land of his former lord, perhaps receiving wages for services still rendered. In the eighth century Wihtraed of Kent enacted that even in the case of solemn manumission at the altar, the inheritance, the wergyld and the mund of the family should remain to the lord, whether the new freedman continued to reside within the Mark or not^[414]. The mode of provision for the emancipated serf must, in a majority of cases, have led to this result. The lord endowed him out of his own land, either with a full possession, secured by charter, or a mere temporary, conditional loan, lǽn: the man therefore remained upon the lord’s estate, and in his borh or surety, though no longer liable to servile disabilities^[415].

221The full ceremonies used in the solemn act of emancipation by the Anglosaxons are not known to us; but there is reason to suppose that they resembled those of other Teutonic nations. Generally these may be divided into civil and ecclesiastical; the former receiving their sanction from the authority of the people or the prince, the latter from the church and its peculiar influences. “He who would emancipate his serf shall deliver him to the sheriff, by the right hand, in full county, shall proclaim him free from all yoke of servitude by manumission, shall show him open roads and doors, and shall deliver unto him the arms of a free man, namely the lance and sword: thenceforth the man is free^[416].” Such is the law of William the Conqueror, and it is repeated with little variation by Henry the First^[417], except that there is no limitation to the sheriff and the county. But this was also one form of manumission among the Langobards. The person who was to be made Fulfreal was delivered over successively into the hands of four different persons: the last of these brought him before witnesses to a spot where four roads met, and his choice was given him of these roads. He was then free, and ámund, that is removed from under the protection of his former master^[418]. But it 222appears that the master, even though he gave the free roads, might reserve the mund of his freedman, by which he retained the right of inheriting from him, if he died childless^[419]; and this recalls to us the provision already cited from the Kentish law^[420]. The history of Ramsey informs us that Æðelstán, the son of Manni, adopted this form in a very extensive emancipation of his serfs^[421], and we may therefore suppose it to have been a mode usual among the Saxons. Among the Franks, the fullest and completest act of emancipation was that which took place before the king, or in a popular court; the freedman, from the ceremonies adopted on the occasion, was called Denarialis, or Denariatus, “qui denarium ante regem iactavit.” He became capable of a wergyld, of contracting marriage with a free woman, and in general obtained all the rights of a free citizen. But he still remained in some degree under the mund of the king, who received his wergyld, and had certain rights over his inheritance^[422]. I do not know whether this has any connexion with a law of Henry the First, which provides that in any case of manumission, the serf shall give thirty pence to the lord, as a witness, namely the price of his skin, for a testimony that 223he is thenceforth himself its master^[423]. There was a form of manumission among the Franks by charter^[424], which however did not confer all the privileges of the denarialis. The holder of such a charter was thence called Chartularius: I will not assert that such a system prevailed here, although it is possible that some of the many charters of emancipation, printed in the Codex Diplomaticus, may be of this nature. Their general character however is that of a record of bargain and sale between different parties: it may be indeed presumed that emancipation would follow, but there is no positive statement that it did. The following class of cases perhaps approaches nearest to such a charta ingenuitatis: “By this book of the Gospels it appeareth that Ælfwig the Red hath bought himself out, from Abbat Ælfsige and all the convent, with one pound. Whereof is witness all the brotherhood at Bath. Christ blind him who turneth away this record^[425]!” But this is only a memorandum in a copy of the Gospels, no charter of manumission; and I presume that the sheriff would have required some much more definite and legal act, before he looked upon Ælfwig the Red as a freeman. Probably he was duly made free at the altar of the abbey church or at the door^[426]. Of this subsequent process we have a good example in the book of St. Petroc.

224“This book beareth witness that Ælfsige bought a woman called Ongyneðel, and her son Gyðiccæl, of Ðurcil for half a pound, at the church-door in Bodmin: and he gave to Ælfsige the portreeve and Maccos the hundred-man, fourpence as toll. Then came Ælfsige who bought these persons, and took them, and freed them, ever sacless, on Petroc’s altar, in the witness of these good men; that is, Isaac the priest^[427],” etc.

Of all forms of emancipation I imagine this to have been the most frequent, partly because of its convenience, partly because the motives for emancipation were generally of a religious cast, and the sanctions of religion were solemn and awful. Almost all the records which we possess on this subject are taken from the margins of Gospels or other books belonging to religious houses, and the few references in the laws imply emancipation at the altar. Among the Franks this form, in which the freedman was called Tabularius, conveyed only imperfect freedom: the utmost it could do was to confer the privileges of a Roman provincial, to which class the clergy were reckoned: but the tabularius even so was not fully free; he still remained in the mund of the church. Wihtræd’s law, so often cited, shows clearly that this was not the case in England; nor could it be, seeing that the clergy among us were national, and the Frankish system of personal rights did not prevail. I am therefore disposed to think that gradually emancipation at the altar was taken to convey all the privileges of 225manumission, and that it was the mode generally, though not exclusively, in use. On this point, the want of documents prevents our attaining certainty. The method was probably this: the man was formally offered up before the high altar, and there declared free in the presence of the officiating clergy and the congregation. A memorandum was then made in some religious book belonging to the church, and the names of the witnesses were recorded. Whether a separate certificate was prepared does not appear.

The full extent of the rights obtained by the freedman, especially in respect of inheritance, is not to be gathered from any existing Anglosaxon document. It is probable that these were limited, as among the Langobards and Franks: his offspring however were free, and his marriage with a free woman, equal: his other rights, duties and privileges, in short his general condition, were in all probability determined by certain arrangements between himself and his lord previous to the act of manumission. In such a case neither party would find much difficulty in settling the terms of a bargain.

NOTE.

The following pedigrees illustrate the care with which the relations of the gebúr, and other dependent cultivators on an estate were recorded. It is probable, nay even certain, that such records were preserved in all lordships: they were the original court-rolls, by copy of which the unfree tenants, perhaps also the poor freemen, held, who were thus the ancient copyholders. The amount of the holdings was undoubtedly 226settled by the custom of the county or the manor; and it is probable that one measure prevailed for all tenants of similar grades. A record of descents was necessary to regulate the claims of a lord to the families of his coloni, and some extensive system of registration very probably prevailed: it would be impossible without it to secure the due operation of the law of teám.

“Dudda was a gebúr at Hǽðfeld, and he had three daughters, one was named Deórwyn, the second Deórswýð, the third Golde. And Wulfláf at Hǽðfeld hath Deórwyn to wife, Ælfstán at Tæccingawyrð hath Deórswýð to wife, and Ealhstán, Ælfstán’s brother, hath Golde to wife. There was a man named Hwíta, the beemaster at Hǽðfeld, and he had a daughter Táte, the mother of Wulfsige, the bowman; and Wulfsige’s sister Lulle hath Héhstán to wife, at Wealden. Wifús and Dunne, and Seoloce are inborn to Hǽðfeld. Duding, the son of Wifús, is settled at Wealden; and Ceólmund the son of Dunne, also sits at Wealden, and Æðelheáh the son of Seoloce, also sits at Wealden: and Táte, Cénwold’s sister, Mæg has to wife at Welgun; and Eádhelm, the son of Hereðrýð, hath Táte’s daughter to wife. Wærláf, Wærstán’s father, was a right serf at Hǽðfeld, he held the grey swine^[428].”

“᛭ A man named Bráda was a gebúr at Hǽðfeld, and Hwíte was the name of Brâda’s wife; she was a gebúr’s daughter at Hǽðfeld. Hwíte was Wærstán’s Wǽðrýð's and Wynburh’s third mother^[429]. And Wærstán sits at Wádtún, and hath Wine’s sister to wife, and Wine hath Wærðrýð to wife.wife. And Dunne sat at Wádtún, she was inborn to Hǽðfeld: and Deórwyn her daughter hath Cynewald to wife at Munden: and Deórnáð her brother is with Cynewald. And Dudde, Wifús’s daughter sits at Wilmundesleá. Cynhelm, Cénwald’s father, was a gebúr at Hǽðfeld, and Manna, Cénwald’s son, sits at Wádtún under Eádwald.”

“᛭ Buhe, Dryhtláfs mother-in-law, was removed fromfrom Hǽðfeld into Eslingaden: and Æðelwyn, Eádugu and Æðelgyð were three sisters; and Tilwine and Dudda, these were all Buge’s children; and Ealhstán Tilwine’s son, and Wulfsige Eádugu’s son, and Ceólhelm Æðelgyð's son, and Ceólstán and Manwine. This kin came from [Hǽð]feld; Deórwulf, Cyneburh’s son, and his two sisters; and Cyneríc at Clæfring is their uncle. These men are the magas of Táta, the gebúr at Hǽðfeld.” Cod. Dipl. No. 1353.

It is probable that all these places are in Hertfordshire, or in Essex. In both counties we find Hatfield and Walden: there is no Clavering in Hertfordshire, that I know of. On the other hand I am not aware of any Munden or Watton in Essex.

227In 880 Æðelred, duke of Mercia, gave various estates to the bishopric of Worcester. He also gave six persons with their offspring, who had previously been adscripti glebæ at the royal vill of Bensington. “These are the names of the persons who are written from Bensington to Readanora, to the bishopric of Worcester, with their offspring, and the progeny that may come of them to all eternity: Alhmund, Tídwulf, Tídleáh, Lull and Eádwulf^[430].”

In 902, Beornwulf homed (gehámette), that is attached, to his manor of Eblesburne, a number of persons, of both sexes. Lufe and her three children, Luha and his six children are named^[431].

In the time of Eádgár we have the record of several persons establishing by their oaths that their parents had not been serfs or coloni of the king^[432]. An Appendix to this chapter contains numerous examples of manumissions, of various periods.

228