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liberty. If the serf paid money to the lord for the grant of freedom, the lord might, it would seem, revoke the grant on the ground that the serf's money was his own money. This technical difficulty, for perhaps it was no more, was evaded by the intervention of a third person who made the purchase nominally with his own but really with the serf's money, and the serf having been sold and delivered (the ownership did not pass until delivery) was set free by his new

owner.

In Bracton's day every act of manumission by the lord seems to have conferred full and perfect freedom; the freed man was in all respects the equal of the free born. This could hardly have been otherwise since, as we have seen, serfdom was regarded for the more part as a mere relation between two persons. Glanvill seems to have held a different opinion. He speaks as though the liberation would make the serf free as regards his former lord, but leave him a serf as regards all other men. The chief, if not the only, point that Glanvill had before his mind when he wrote this seems to have been that the free villein could not be produced as champion or compurgator. It is possible, also, that he had in view acts of enfranchisement which were merely private and would not have denied that there were solemner methods by which absolute freedom could be conferred. In the Leges Henrici the man who wishes to free his serf must do so in public, "in a church or a market or a county court or a hundred court, openly and before witnesses”; lance and sword are bestowed upon the new free man, and a ceremony is enacted which shows him that all ways lie open to his feet. Glanvill may have required some such public act if perfect liberty was to be conferred; but Bracton, who habitually regards serfdom as a mere relationship, sees no difficulty; the lord by destroying relationship destroys serfdom. Here we seem to see a modern notion of relative serfdom growing at the expense of an older notion of true slavery. To turn a thing into a person is a feat that cannot be performed without the aid of the State; but to make free as against yourself one who is already free as against all but you, this you can easily do, for it is hardly a matter of public law.

The serf will also become free (1) by dwelling for a year and a day on the king's demesne or in a privileged town - this is an assertion of prerogative right which peoples the king's manors and boroughs; (2) by being knighted knighthood confers but a provisional freedom, for the knighted serf can be degraded when his servility is proved; (3) by entering religion or receiving holy orders;

it is unlawful to ordain a serf - this is forbidden by canon as well as by temporal law; but when he is once ordained, he is free, though his serfdom revives if he resumes a secular life. The lord's right of action for the recovery of a serf was subject to a prescriptive term; in 1236 the year 1210 was chosen as the limit and this limit was not altered until 1275; we have already seen that his right of self-help the lord lost somewhat easily, though less easily as time went on.

Such, briefly stated, is the English law of villeinage or serfage in the thirteenth century. Its central idea, that of the relativity of serfage, is strange. It looks artificial: that is to say, it seems to betray the handiwork of lawyers who have forced ancient facts into a modern theory. Slavery is very intelligible; so is slavery tempered by humane rules which will forbid an owner to maltreat his human chattel; so again is a prædial serfage, and the ancient laws of our race compel us to admit that there may be a half-free class - men who are neither liberi homines nor yet servi; but a merely relative serfdom is a juristic curiosity. In defining it we have ever to be using the phrases, "in relation to," "as regards," "as against" phrases which would not easily occur to the unlettered, and law which allows my serf to sue any free man but me, even to sue my lord, does not look like a natural expression of any of those deep-seated sentiments which demand that divers classes of men shall be kept asunder. Then this idea of relative servitude has to be further qualified before it will square with facts and customs and current notions of right and wrong. When a lord allows it to be recorded that on the death of his servile tenant he is entitled to the best beast, he goes very far toward admitting that he is not entitled to seize the chattels of his serf without good cause. We hesitate before we describe the serf as rightless even as against his lord, and, if we infer want of right from want of remedy, we feel that we may be doing violence to the thoughts of a generation which saw little difference between law and custom. On the whole, looking at the law of Bracton's day, we might guess that here as elsewhere the king's court has been carrying out a great work of simplification; we might even guess that its "serf-villein," rightless against his lord, free against all but his lord, is as a matter of history a composite person, a serf and a villein rolled into one.

That this simplifying process greatly improved the legal position of the serf can hardly be doubted. We need not indeed suppose that the theow or servus of earlier times had been subjected to a rigorously consistent conception of slavery. Still in the main he

had been rightless, a chattel; and we may be sure that his rightlessness had not been the merely relative rightlessness of the "serfvillein" of later days, free against all but his lord. Indeed, we may say that in the courts of the twelfth century slavery was abolished. That, on the other hand, the villani suffered in the process, is very likely. Certainly they suffered in name. A few of them, notably those on the king's manors, may have fallen on the right side of the Roman dilemma, aut liberi aut servi, and as free men holding by unfree tenure may have become even more distinctively free than they were before; but most of them fell on the wrong side they got a bad name and were brought within the range of maxims which described the English theow or the Roman slave.

Probably we ought not to impute to the lawyers of this age any conscious desire to raise the serf or to debase the villein. The great motive force which directs their doings in this as in other instances is a desire for the utmost generality and simplicity. They will have as few distinctions as possible. All rights in land can be expressed by the formula of dependent tenure; all conceivable tenures can be brought under some half-dozen heads; so also the lines which have divided men into sorts and conditions may with advantage be obliterated, save one great line. All men are free or serfs; all free men are equal; all serfs are equal — no law of ranks can be simpler than that. In this instance they had Roman law to help them; but even that was not simple enough for them; the notion of coloni who are the serfs of a tenement rather than of a person, though it might seem to have so many points of contact with the facts of English villeinage, was rejected in the name of simplicity. They will carry through all complexities a maxim of their own, the serf is his lord's chattel, but is free against all but his lord. They reck little of the interests of any classes, high or low; but the interests of the State, of peace and order and royal justice, are ever before them.

We have spoken at some length of the "serf-villeins" of the thirteenth century, for they formed a very large class. For several reasons precise calculations are impossible. In the first place, tenure is so much more important than status, at least so much more important as a matter of manorial economy, that the "extents" and surveys are not very careful to separate the personally free from the personally unfree. In the second place, it is highly probable that large numbers of men did not know on which side of the legal gulf they stood; they and their ancestors had been

doing services that were accounted villein, paying merchet, and so forth; but this was not conclusive, and if they escaped from their lord it might be very difficult for him to prove them his "natives." On the other hand, while they remained in his power, they could have little hope of proving themselves free, and if they fled they left their all behind them. In the third place, a great part of our information comes from the estates of the wealthiest abbeys, and while admitting to the full that the monks had no wish to illtreat their peasantry, we cannot but believe that of all lords they were the most active and most far-sighted. Lastly, we have as yet in print but little information about certain counties which we have reason to suppose were the least tainted with servitude, about Kent (already in Edward I's time it was said that no one could be born a villein in Kent), about Norfolk and Suffolk, about the Northumbrian shires. Still, when all is said, there remain the Hundred Rolls for the counties of Bedford, Buckingham, Cambridge, Huntingdon, and Oxford, and no one can read them without coming to the conclusion that the greater half of the rural population is unfree. The jurors of various hundreds may tell us this in different ways; but very commonly by some name such as nativi or servi, by some phrase about "ransom of flesh and blood" or the like, they show their belief that taken in the lump those peasants, who are not freeholders and are not royal sokemen, are not free men.

Occasionally a man who was born a villein might find a grand career open to him. It was said that John's trusty captain, Gerard de Athée, whose name is handed down to infamy by Magna Carta, was of servile birth; in 1313 the Bishop of Durham manumitted a scholar of Merton who was already a "master"; in 1308 Simon of Paris, mercer and alderman, who had been sheriff of London, was arrested as a fugitive villein, after being required to serve as reeve of his native manor.

BIBLIOGRAPHICAL NOTE

Gneist, History of the English Constitution, chaps. vi and xx. Vinogradoff, The Growth of the Manor, pp. 332 ff. Stubbs, Constitutional History of England, Vol. I, chap. xi, §§ 124, 132.

CHAPTER IV

REFORMS IN CHURCH AND STATE UNDER HENRY II

THE true nature of feudalism, in its logical consequences, was demonstrated in the anarchy of Stephen's reign, and when Henry II came to the throne he found sovereign power shared by many factions and interests in the State. The Church claimed for its courts extensive jurisdiction over laymen and clergy in matters which we now regard as rightly belonging to secular powers. Furthermore, under the Hildebrandine ideas on the exalted powers of the Church, the latter claimed an independence from secular authority, which, however righteous it may have been, was regarded by the king as wholly incompatible with national unity. In addition to the great strength of the Church, there were the barons who enjoyed within their respective domains almost regal powers. Finally the governmental machinery for executing the law, maintaining police control, and administering royal justice had fallen so badly into disorder that Henry II had to reorganize it and define its sphere of action in order to make his will effective throughout his realm. In other words, the ideal towards which he was working was the subjection of all men and all institutions to the supremacy of the secular State of which the king was the personal embodiment. In this work he met the stoutest opposition in the mighty champion of the Church, Thomas Becket.

1. Thomas Becket as an Ecclesiastic1

Thomas Becket, who had been selected by Archbishop Theobald as the fittest adviser of the young king, was endowed with many brilliant and serviceable gifts. He was an able man of business,

1 Stubbs, Constitutional History of England, Vol. I, chap. xii. By permission of the Delegates of the Clarendon Press, Oxford.

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