Villainage in England: Essays in English Mediaeval History

Hundredors as villains.

And now as to their status. The obligation to send the reeve and four men is enforced all through England, and for this reason it is prima facie impossible that it should be performed everywhere by freeholders in the usual sense of the word. There can be no doubt that in many, if not in most, places the feudal organisation of society afforded little room for a considerable class of freeholding peasants or yeomen397. If every township in the realm had to attend particular judicial meetings, to perform service for the king, by means of five representatives, these could not but be selected largely from among the villain class. The part played by these representatives in the Courts was entirely in keeping with their subordinate position. They were not reckoned among the 'free and lawful' men acting as judges or assessors and deciding the questions at issue. They had only to make presentments and to give testimony on oath when required to do so. The opposition is a very marked one, and speaks of itself against the assumption that the five men from the township were on an equal standing with the freeholders398. Again, four of these five were in many cases especially bound by their tenure to attend the meetings, and the reeve came by virtue of his office, but he is named first, and it does not seem likely that the leader should be considered as of lower degree than the followers. Now the obligation to serve as reeve was taken as a mark of villainage. All these facts lead one forcibly to the conclusion that the hundredors of our documents represent the village people at large, and the villains first of all, because this class was most numerous in the village. This does not mean, of course, that they were all personally unfree: we know already, that the law of tenure was of more importance in such questions than personal status399. It does not even mean that the hundredors were necessarily holding in villainage: small freeholders may have appeared among them. But the institution could not rest on the basis of legal freehold if it was to represent the great bulk of the peasantry in the townships.

Hundredors as free tenants.

This seems obvious and definite enough, but our inquiry would be incomplete and misleading if it were to stop here. We have in this instance one of those curious contradictions between two well-established sets of facts which are especially precious to the investigator because they lead him while seeking their solution to inferences far beyond the material under immediate examination. In one sense the reeve and the four men, the hundredors, seem villains and not freeholders. In another they seem freeholders and not villains. Their tenure by the 'sergeanty' of attending hundreds and shires ranks again and again with freehold and in opposition to base tenure400. Originally the four men were made to go not only with the reeve but with the priest; and if the reeve was considered in feudal times as unfree, the priest, the 'mass-thane,' was always considered as free401. It is to be noticed that the attendance of the priest fell into abeyance in process of time, but that it was not less necessary for the representation of the township according to the ancient constitution of the hundred than the attendance of the reeve. This last fact is of great importance because it excludes an explanation which would otherwise look plausible enough. Does it not seem at first sight that the case of the hundredors is simply a case of exemption and exactly on a parallel with the commutation of servile obligations for money? We have seen that villains discharged from the most onerous and opprobrious duties of their class rise at once in social standing, and mix up with the smaller freeholders. Hundredors are relieved from these same base services in order that they may perform their special work, and this may possibly be taken as the origin of their freedom. Should we look at the facts in this way, the classification of this class of tenants as free would proceed from a lax use of the term and their privileges would have to be regarded as an innovation. The presence of the priest warns us that we have to reckon in the case with a survival, with an element of tradition and not of mere innovation. And it is not only the presence of the priest that points this way.

The Hundred Courts.

At first sight the line seems drawn very sharply between the reeve and the four men on the one hand, and the freehold suitors of the hundred court on the other: while these last have to judge and to decide, the first only make presentments. But the distinction, though very clear in later times, is by no means to be relied upon even in the thirteenth century. In Britton's account of the sheriff's tourn the two bodies, though provided with different functions, are taken as constituted from the same class: 'the free landowners of the hundred are summoned and the first step is to cause twelve of them to swear that they will make presentment according to the articles. Afterwards the rest shall be sworn by dozens and by townships, that they will make lawful presentment to the first twelve jurors402.' The wording of the passage certainly leads one to suppose that both sets of jurors are taken from the freeholder class, and the difference only lies in the fact that some are selected to act as individuals, and the rest to do so by representation. The Assize of Clarendon, which Mr. Maitland has shown to be at the origin of the sheriff's tourn403, will only strengthen the inference that the two bodies were intended to belong to the same free class: the inquiry, says the Assize, shall be made by twelve of the most lawful men of the county, and by four of the most lawful men of every township. What is there in these words to show that the two sets were to be taken from different classes? And does not the expression 'lawful,' extending to both sets, point to people who are 'worthy of their law,' that is to free men? The Assize of Clarendon and the constitution of the tourn are especially interesting because they give a new bearing to an old institution: both divisions of the population which they have in view appear in the ordinary hundred and county court, and in the 'law day' of the 'great' hundred instituted for the view of frankpledge. In the ordinary court the lord, his steward, and the reeve, priest, and four men, interchange, according to the clear statement of Leg. Henrici I. c. 7, that is to say, the vill is to be represented either by the lord, or by his steward, or again by the six men just mentioned. They are not called out as representing different classes and interests, but as representing the same territorial unity. If the landlord does not attend personally or by his personal representative, the steward, then six men from the township attend in his place. The question arises naturally, where is one to look for the small freeholders in the enactment? However much we may restrict their probable number, their existence cannot be simply denied or disregarded. It does not seem likely that they were treated as landlords (terrarum domini), and one can hardly escape the inference that they are included in the population of the township, which appears through the medium of the six hundredors: another hint that the class division underlying the whole structure did not coincide with the feudal opposition between freeholder and villain. Again, in the great hundred for the view of frankpledge, which is distinguished from the ordinary hundred by fuller attendance, and not by any fundamental difference in constitution, all men are to appear who are 'free and worthy of their wer and their wite404:' this expression seems an equivalent to the 'free and lawful' men of other cases, and at the same time it includes distinctly the great bulk of the villain population as personally free.

Results as to hundredors.

I have not been able, in the present instance, to keep clear of the evidence belonging to the intermediate period between the Saxon and the feudal arrangements of society; this deviation from the general rule, according to which such evidence is to be discussed separately and in connexion with the Conquest, was unavoidable in our case, because it is only in the light of the laws of Henry I that some important feudal facts can be understood. In a trial as to suit of court between the Abbot of Glastonbury and two lay lords, the defendants plead that they are bound to appear at the Abbot's hundred court personally or by attorney only on the two law-days, whereas for the judgment of thieves their freemen, their reeves and ministers have to attend in order to take part in the judgment405. It is clearly a case of substitution, like the one mentioned in Leg. Henrici, c. 7, and the point is, that the representatives of the fee are designated as reeves and freemen. Altogether the two contradictory aspects in which the hundredors are made to appear can hardly be explained otherwise than on the assumption of a fluctuation between the conception of the hundred as of an assembly of freemen, and its treatment under the influence of feudal notions as to social divisions. In one sense the hundredors are villains: they come from the vill, represent the bulk of its population, which consists of villains, and are gradually put on a different footing from the greater people present. In another sense they are free men, and even treated as freeholders, because they form part of a communal institution intended to include the free class and to exclude the servile class406. If society had been arranged consistently on the feudal basis, there would have been no room for the representation of the vill instead of the manor, for the representation of the vill now by the lord and now by a deputation of peasants, for a terminology which appears to confuse or else to neglect the distinction between free and servile holding. As it is, the intricate constitution of the hundred, although largely modified and differentiated by later law, although cut up as it were by the feudal principle of territorial service, looks still in the main as an organisation based on the freedom of the mass of the people407. The free people had to attend virtually, if not actually, and a series of contradictions sprang up from the attempt to apply this principle to a legal state which had almost eliminated the notion of freedom in its treatment of peasantry on villain land. As in these feudal relations all stress lay on tenure and not on status, the manorial documents seem to raise the hundredors almost or quite to the rank of freeholders, although in strict law they may have been villains. The net results seem to be: (1) that the administrative constitution of hundred and county is derived from a social system which did not recognise the feudal opposition between freeholder and villain; (2) that we must look upon feudal villainage as representing to a large extent a population originally free; (3) that this original freedom was not simply one of personal status, but actually influenced the conception of tenure even in later days408.

Socmen.

If in manorial documents these 'hundredors' occupy as it were an ambiguous position, the same may be said of another and a very important class—the socmen. The socage tenure has had a very curious terminological history. Everybody knows that it appears in Domesday as a local peculiarity of Danish districts; in modern law it came to be a general name for any freehold that was neither knight service, frankalmoign, nor grand sergeanty. It became in fact the normal and typical free tenure, and as such it was treated by the Act of Charles II abolishing military tenure. Long before this—even in the thirteenth century—'free socage' was the name of a freehold tenure fully protected by the King's Courts. Very great men occasionally held land in free socage (per liberum socagium); they even held of the King in chief by free socage, and the tenure had many advantages, since it was free from the burdensome incidents of wardship and marriage. But no one would have called these men socmen (sokemanni, socomanni). On the other hand, the socmen, free socmen, were to be found all over England and not in the Danish country only. It is of the tenure of these socmen that we have to speak now. In a trial of Edward the First's time the counsel distinguish three manners of persons—free men, villains, and socmen. These last are said to occupy an intermediate position, because they are as statu liberi in regard to their lords409. The passage occurs in a case relating to ancient demesne, but the statement is made quite broadly, and the term 'socmen' is used without any qualification. As there were many socmen outside the King's possessions on the land of lay and spiritual lords, such usage may be taken as proof that the position of all these people was more or less identical. And so in our inquiry as to the characteristic traits of socage generally we may start from the ancient demesne. Further, we see that the socman's tenure is distinguished from free tenure, socmen from freeholders. In the law books of the time the free but non-military tenure has to be characterised not merely as socage, but as free socage: this fact will give us a second clue in analysing the condition.

Charter and communal testimony.

There are two leading features in ancient demesne socage: it is certain in tenure and service, and it is held by the custom of the manor and not by feoffment. The certainty of the tenure severs the class of socmen from the villains, and is to be found as well in the case of socmen outside the crown demesne as in the case of socmen on the crown demesne. What is to be said of the second trait? It seems especially worthy of notice, because it cannot be said to belong to freehold generally. As to its existence on ancient demesne land I have already had occasion to speak, and it can hardly be doubted. I will just recall to the reader's mind the fundamental facts: that the 'little writ of right' was to insure justice according to the custom of the manor, and that our documents distinguish in as many words between the customary admittance of the socman and the feoffment of the freeholder. This means, that in case of litigation the one had warranty and charter to lean upon, while the other had to appeal to the communal testimony of his fellow-suitors in the court of the manor, and in later days to an entry on the court-roll. Freehold appeared as chartered land (book-land), while socage was in truth copyhold secured by communal custom410. The necessary surrender and admittance was performed in open court, and the presence of fellow-tenants was as much a requisite of it as the action of the lord or his steward.

If we look now to the socmen outside the ancient demesne, we shall find their condition so closely similar, that the documents constantly confuse them with the tenants of the ancient demesne. The free men under soke in the east of England have best kept the tradition, but even their right is often treated as a mere variation of ancient demesne411. For this reason we should be fairly entitled, I think, to extend to them the notion of customary freehold. There is direct evidence in this respect. In extents of manors socmen are often distinguished from freeholders412. True, as already said, that in the king's courts 'free socage' came to be regarded as one of the freehold tenures, and as such (when not on the ancient demesne) was protected by the same actions which protected knight-service and frankalmoign; but we have only here another proof of the imperfect harmony between legal theory and manorial administration. What serves in the manorial documents to distinguish the 'socman' from the 'freeholder' is the fact that the former holds without charter413. We are naturally led to consider him as holding, at least originally, by ancient custom and communal testimony in the same sense as the socmen of ancient demesne. In most cases only the negative side, namely the absence of a charter, is mentioned, but there are entries which disclose the positive side, and speak of tenants or even free tenants holding without charter by ancient tenure414. It is to be added, that we find such people in central and western counties, that is outside of the Danelagh. In Domesday their predecessors were entered as villains, but their tenure is nevertheless not only a free but an ancient one.

Bond socmen.

It must also be added that it is not only free socmen that one finds outside the ancient demesne; bond socmen are mentioned as well. Now this seems strange at first sight, because the usual and settled terminology treats villain socage as a peculiarity of ancient demesne. My notion is that it is not 'bond' that qualifies the 'socmen,' but vice versa. To put it in a different way, the documents had to name a class which held by certain custom, although by base service, and they added the 'socman' to qualify the 'bond' or the 'villain.'

Two cases from the Hundred Rolls may serve as an illustration of this not unimportant point. The vill of Soham in Cambridgeshire415 was owned in 1279 partly by the King, partly by the Earl Marshall, and partly by the Bishop of Ely. There are two socmen holding from the King thirty acres each, fourteen socmen holding fifteen acres each, and twenty-six 'toftarii' possessed of small plots. No villains are mentioned, but the socmen are designated on the margin in a more definite way as bond socmen. The manor had been in the possession of the Crown at the time of the Conquest, and it is to be noticed, to begin with, that the chief population of the part which remained with the King appears as socmen—a good illustration of the principle that the special status did not originate when the manor was granted out by the Crown. The sixteen peasants first mentioned are holders of virgates and half-virgates, and form as it were the original stock of the tenantry—it would be impossible to regard them as a later adjunct to the village. Their status is not a result of commutation—they are still performing agricultural work, and therefore bond socmen. The Domesday Survey speaks only of villains and 'bordarii,' and it is quite clear that it calls villains the predecessors of the 'bond socmen' of the Hundred Rolls. And now let us examine the portion of the manor which had got into the hands of the Earl Marshall. We find there several free socmen whose holdings are quite irregular in size: they pay rent, and are exempted from agricultural work. Then come five bond socmen, holding thirty acres each, and nine bonds holding fifteen acres each: all these perform the same services as the corresponding people of the King's portion. And lastly come twenty-two tofters. Two facts are especially worth notice: the free socman appears by the side of the bond socman, and the opposition between them reduces itself to a difference between rentpaying people and labourers; the holdings of the rentpayers are broken up into irregular plots, while the labourers still remain bound up by the system of equalised portions. The second significant fact is, that the term 'socman,' which has evidently to be applied to the whole population except the tofters, has dropped out in regard to the half-virgate tenants of the Earl Marshall. If we had only the fragment relating to his nine bondmen, we might conclude perhaps that there was no certain tenure in the manor. The inference would have been false, but a good many inferences as to the social standing of the peasantry are based on no better foundation. In any case the most important part of the population of Soham, as far as it belonged to the king and to the earl, consisted of socmen who at the same time are called bondmen, and were called villains in Domesday.

Soham is ancient demesne. Let us now take Crowmarsh in Oxfordshire416. Two-thirds of it belonged to the Earl of Oxford in 1279, and one-third to the Lord de Valence. At the time of the Domesday Survey it was in the hands of Walter Giffard, and therefore not ancient demesne. On the land of the Earl of Oxford we find in 1279 nine servi socomanni holding six virgates, there are a few cotters and a few free tenants besides; the remaining third is occupied by two 'tenentes per servicium socomannorum,' and by a certain number of cotters and free tenants. It can hardly be doubted that the opposition between servi and liberi is not based on the certainty of the tenure; the socmen hold as securely as the free tenants, but they are labourers, while these latter are exempted from the agricultural work of the village. The terms are used in the same way as the 'terra libera' and the 'terra operabilis' of the Glastonbury inquest.

Servile duties of socmen and freeholders.

I need not say that the socmen of ancient demesne, privileged villains as Bracton calls them, are sometimes subjected to very burdensome services and duties. Merchet is very common among them; it even happens that they have to fine for it at the will of the lord417. But all the incidents of base tenure are to be found also outside the ancient demesne in connexion with the class under discussion. If we take the merchet we shall find that at Magna Tywa, Oxon418, it is customary to give the steward a sword and four pence for licence to give away one's daughter within twenty miles in the neighbourhood; in Haneberg, Oxon419, a spear and four pence are given in payment. The socmen of Peterborough Abbey420 have to pay five shillings and four pence under the name of merchet as a fine for incontinence (the legerwite properly so-called), and there is besides a marriage payment (redempcio sanguinis) equal for socmen and villains. The same payment occurs in the land of Spalding Priory, Lincoln421. The same fact strikes us in regard to tallage and aids, i.e. the taxes which the lord had a right to raise from his subjects. In Stoke Basset, Oxon422, the socmen are placed in this respect on the same footing with the villains. The Spalding Cartulary adds that their wainage is safe in any case423. On the lands of this priory the classes of the peasantry are generally very near to each other, so that incidents and terms often get confused424.

And not only socmen have to bear such impositions: we find them constantly in all shapes and gradations in connection with free tenantry. The small freeholder often takes part in rural work425, sometimes he has to act as a kind of overseer426, and in any case this base labour would not degrade him from his position427. Already in Bracton's day the learned thought that the term 'socage' was etymologically connected with the duty of ploughing:—a curious proof both of the rapidity with which past history had become unintelligible, and of the perfect compatibility of socage with labour services. Merchet, heriot, and tallage occur even more often428. All such exactions testify to the fact that the conceptions of feudal law as to the servile character of particular services and payments were in a great measure artificial. Tallage, even arbitrary tallage, was but a tax after all, and did not detract from personal freedom or free tenure in this sense. Then heriot often occurs among free people in the old Saxon form of a surrender of horse and arms as well as in that of the best ox429. Merchet is especially interesting as illustrating the fusion of different duties into one. It is the base payment par excellence, and often used in manorial documents as a means to draw the line between free and unfree men430. Nevertheless free tenants are very often found to pay it431. In most cases they have only to fine in the case when their daughters leave the manor, and this, of course, has nothing degrading in it: the payment is made because the lord loses all claim as to the progeny of the woman who has left his dominion. But there is evidence besides to show that free tenants had often to pay in such a case to the hundred, and the lords had not always succeeded in dispossessing the hundred432. Such a fine probably developed out of a payment to the tribe or to a territorial community in the case when a woman severed herself from it. It had nothing servile in its origin. And still, if the documents had not casually mentioned these instances, we should have been left without direct evidence as to a difference of origin in regard to merchet or gersum. Is it not fair to ask, whether the merchet of the villains themselves may not in some instances have come from a customary recompense paid originally to the community of the township into the rights of which the lord has entered? However this may be, one fact can certainly not be disputed: men entirely free in status and tenure were sometimes subjected to an exaction which both public opinion and legal theory considered as a badge of servitude.