(c. 70). But this expression argues an Anglo-Saxon source; and, in fact, so much in that treatise seems to be copied, without regard to the change of times, from old authorities, mixed up with provisions of a feudal or Norman character, that we hardly know how to distinguish what belongs to each period. It is far from improbable that villenage, in the sense the word afterwards bore, that is, an absolutely servile tenure of lands, not only without legal rights over them, but with an incapacity of acquiring either immovable or movable property against the lord, may have made considerable strides before the reign of Henry II.[476] But unless light should be thrown on its history by the publication of more records, it seems almost impossible to determine the introduction of predial villenage more precisely than to say it does not appear in the laws of England at the Conquest, and it does so in the time of Glanvil.
Mr. Wright"s Memoir in the Archaeologia, above quoted, contains some interesting matter; but he has too much confounded the _theow_, or Anglo-Saxon slave, with the _ceorl_; not even mentioning the latter, though it is indisputable that _villa.n.u.s_ is the equivalent of _ceorl_, and _servus_ of _theow_.
But I suspect that we go a great deal too far in setting down the descendants of these ceorls, that is, the whole Anglo-Saxon population except thanes and burgesses, as almost universally to be counted such villeins as we read of in our law-books, or in concluding that the cultivators of the land, even in the thirteenth century, were wholly, or at least generally, servile. It is not only evident that small freeholders were always numerous, but we are, perhaps, greatly deceived in fancying that the occupiers of villein tenements were usually villeins. _Terre-tenants en villenage_ and tenants _par copie_, who were undoubtedly free, appear in the early Year-books, and we know not why they may not always have existed.[477] This, however, is a subject which I am not sufficiently conversant with records to explore; it deserves the attention of those well-informed and diligent antiquaries whom we possess. Meantime it is to be observed that the lands occupied by _villani_ or _bordarii_, according to the Domesday survey, were much more extensive than the copyholds of the present day; and making every allowance for enfranchis.e.m.e.nts, we can hardly believe that all these lands, being, in fact, by far the greater part of the soil, were the _villenagia_ of Glanvil"s and Bracton"s age. It would be interesting to ascertain at what time the latter were distinguished from _libera tenementa_; at what time, that is, the distinction of territorial servitude, independent as it was of the personal state of the occupant, was established in England.
NOTE XIV. Page 173.
This ident.i.ty of condition between the villein regardant and in gross appears to have been, even lately, called in question, and some adhere to the theory which supposes an inferiority in the latter. The following considerations will prove that I have not been mistaken in rejecting it:--
I. It will not be contended that the words "regardant" and "in gross"
indicate of themselves any specific difference between the two, or can mean anything but the t.i.tle by which the villein was held; prescriptive and territorial in one case, absolute in the other. For the proof, therefore, of any such difference we require some ancient authority, which has not been given. II. The villein regardant might be severed from the manor, with or without land, and would then become a villein in gross. If he was sold as a domestic serf, he might, perhaps, be practically in a lower condition than before, but his legal state was the same. If he was aliened with lands, parcel of the manor, as in the case of its descent to coparceners who made part.i.tion, he would no longer be regardant, because that implied a prescriptive dependence on the lord, but would occupy the same tenements and be in exactly the same position as before. "Villein in gross," says Littleton, "is where a man is seised of a manor whereunto a villein is regardant, and granteth the same villein by deed to another; then he is a villein in gross, and not regardant." (Sect. 181.) III. The servitude of all villeins was so complete that we cannot conceive degrees in it. No one could purchase lands or possess goods of his own; we do not find that any one, being strictly a villein, held by certain services; "he must have regard,"
says c.o.ke, "to that which is commanded unto him; or, in the words of Bracton, "a quo praestandum servitium incertum et indeterminatum, ubi scire non poterit vespere quod servitium fieri debet mane."" (Co. Lit.
120, b.) How could a villein in gross be lower than this? It is true that the villein had one inestimable advantage over the American negro, that he was a freeman, except relatively to his lord; possibly he might be better protected against personal injury; but in his incapacity of acquiring secure property, or of refusing labour, he was just on the same footing. It may be conjectured that some villeins in gross were descended from the _servi_, of whom we find 25,000 enumerated in Domesday. Littleton says, "If a man and his ancestors, whose heir he is, have been seised of a villein and of his ancestors, as of villeins in gross, time out of memory of man, these are villeins in gross." (Sect.
182.)
It has been often a.s.serted that villeins in gross seem not to have been a numerous cla.s.s, and it might not be easy to adduce distinct instances of them in the fourteenth and fifteenth centuries, though we should scarcely infer, from the pains Littleton takes to describe them, that none were left in his time. But some may be found in an earlier age. In the ninth of John, William sued Ralph the priest for granting away lands which he held to Canford priory. Ralph pleaded that they were his freehold. William replied that he held them in villenage, and that he (the plaintiff) had sold one of Ralph"s sisters for four shillings.
(Blomefield"s Norfolk, vol. iii. p. 860, 4to. edition.) And Mr. Wright has found in Madox"s Formulare Anglicanum not less than five instances of villeins sold with their family and chattels, but without land.
(Archaeologia, x.x.x. 228.) Even where they were sold along with land, unless it were a manor, they would, as has been observed before, have been villeins in gross. I have, however, been informed that in valuations under escheats in the old records a separate value is never put upon villeins; their alienation without the land was apparently not contemplated. Few cases concerning villeins in gross, it has been said, occur in the Year-books; but villenage of any kind does not furnish a great many; and in several I do not perceive, in consulting the report, that the party can be shown to have been regardant. One reason why villeins in gross should have become less and less numerous was that they could, for the most part, only be claimed by showing a written grant, or by prescription through descent; so that, if the t.i.tle-deed were lost, or the descent unproved, the villein became free.
Manumissions were often, no doubt, gratuitous; in some cases the villein seems to have purchased his freedom. For though in strictness, as Glanvil tells us, he could not "libertatem suam suis denariis quaerere,"
inasmuch as all he possessed already belonged to the lord, it would have been thought a meanness to insist on so extreme a right. In order, however, to make the deed more secure, it was usual to insert the name of a third person as paying the consideration-money for the enfranchis.e.m.e.nt. (Archaeologia, x.x.x. 228.)
It appears not by any means improbable that regular money payments, or other fixed liabilities, were often subst.i.tuted instead of uncertain services for the benefit of the lord as well as the tenant. And when these had lasted a considerable time in any manor, the villenage of the latter, without any manumission, would have expired by desuetude. But, perhaps, an entry of his tenure on the court-roll, with a copy given to himself, would operate of itself, in construction of law, as a manumission. This I do not pretend to determine.
NOTE XV. Page 179.
The public history of Europe in the middle ages inadequately represents the popular sentiment, or only when it is expressed too loudly to escape the regard of writers intent sometimes on less important subjects. But when we descend below the surface, a sullen murmur of discontent meets the ear, and we perceive that mankind was not more insensible to wrongs and sufferings than at present. Besides the various outbreakings of the people in several counties, and their complaints in parliament, after the commons obtained a representation, we gain a conclusive insight into the spirit of the times by their popular poetry. Two very interesting collections of this kind have been lately published by the Camden Society, through the diligence of Mr. Thomas Wright; one, the Poems attributed to Walter Mapes; the other, the Political Songs of England, from John to Edward II.
Mapes lived under Henry II., and has long been known as the reputed author of humorous Latin verses; but it seems much more probable, that the far greater part of the collection lately printed is not from his hand. They may pa.s.s, not for the production of a single person, but rather of a cla.s.s, during many years, or, in general words, a century, ending with the death of Henry III. in 1272. Many of them are professedly written by an imaginary Golias.
"They are not the expressions of hostility of one man against an order of monks, but of the indignant patriotism of a considerable portion of the English nation against the encroachments of civil and ecclesiastical tyranny." (Introduction to Poems ascribed to Walter Mapes, p. 21.) The poems in this collection reflect almost entirely on the pope and the higher clergy. They are all in rhyming Latin, and chiefly, though with exceptions, in the loose trochaic metre called Leonine. The authors, therefore, must have been clerks, actuated by the spirit which, in a church of great inequality in its endowments, and with a very numerous body of poor clergy, is apt to gain strength, but certainly, as ecclesiastical history bears witness, not one of mere envious malignity towards the prelates and the court of Rome. These deserved nothing better, in the thirteenth century, than biting satire and indignant reproof, and the poets were willing enough to bestow both.
But this popular poetry of the middle ages did not confine itself to the church. In the collection ent.i.tled "Political Songs" we have some reflecting on Henry III., some on the general administration. The famous song on the battle of Lewes in 1264 is the earliest in English; but in the reign of Edward I. several occur in that language. Others are in French or in Latin; one complaining of the taxes is in an odd mixture of these two languages; which, indeed, is not without other examples in mediaeval poetry. These Latin songs could not, of course, have been generally understood. But what the priests sung in Latin, they said in English; the lower clergy fanned the flame, and gave utterance to what others felt. It may, perhaps, be remarked, as a proof of general sympathy with the democratic spirit which was then fermenting, that we have a song of exultation on the great defeat which Philip IV. had just sustained at Courtrai, in 1302, by the burgesses of the Flemish cities, on whose liberties he had attempted to trample (p. 187). It is true that Edward I. was on ill terms with France, but the political interests of the king would not, perhaps, have dictated the popular ballad.
It was an idle exaggeration in him who said that, if he could make the ballads of a people, any one might make their laws. Ballads, like the press, and especially that portion of the press which bears most a.n.a.logy to them, generally speaking, give vent to a spirit which has been at work before. But they had, no doubt, an influence in rendering more determinate, as well as more active, that resentment of wrong, that indignation at triumphant oppression, that belief in the vices of the great, which, too often for social peace and their own happiness, are cherished by the poor. In comparison, indeed, with the efficacy of the modern press, the power, of ballads is trifling. Their lively sprightliness, the humorous tone of their satire, even their metrical form, sheathe the sting; and it is only in times when political bitterness is at its height that any considerable influence can be attached to them, and then it becomes undistinguishable from more energetic motives. Those which we read in the collection above mentioned appear to me rather the signs of popular discontent than greatly calculated to enhance it. In that sense they are very interesting, and we cannot but desire to see the promised continuation to the end of Richard II."s reign.[478] They are said to have become afterwards less frequent, though the wars of the Roses were likely to bring them, forward.
Some of the political songs are written in France, though relating to our kings John and Henry III. Deducting these, we have two in Latin for the former reign; seven in Latin, three in French (or what the editor calls Anglo-Norman, which is really the same thing), one in a mixture of the two, and one in English, for the reign of Henry III. In the reigns of Edward I. and Edward II. we have eight in Latin, three in French, nine in English, and four in mixed languages; a style employed probably for amus.e.m.e.nt. It must be observed that a large proportion of these songs contain panegyric and exultation on victory rather than satire; and that of the satire much is general, and much falls on the church; so that the animadversions on the king and the n.o.bility are not very frequent, though with considerable boldness; but this is more shown in the Latin than the English poems.
FOOTNOTES:
[460] This hypothetical clause is somewhat remarkable. Grand serjeanty is of course included by parity under military service. But did any hold of the king in socage, except on his demesne lands? There might be some by petty serjeanty. Yet the committee, as we have just seen, absolutely exclude these from any share in the great councils of the Conqueror and his immediate descendants.
[461] Mr. Spence has ingeniously conjectured, observing that in some pa.s.sages of Domesday (he quotes two, but I only find one) the barons who held more than six manors paid their relief directly to the king, while those who had six or less paid theirs to the sheriff (Yorkshire, 298, b), that "this may tend to solve the disputed question as to what const.i.tuted one of the greater barons mentioned in the Magna Charta of John and other early Norman doc.u.ments; for, by a.n.a.logy to the mode in which the relief was paid, the greater barons were summoned by particular writs, the rest by one general summons through the sheriff."
History of Equitable Jurisdiction, p. 40.
[462] See quotation from Spence"s Equitable Jurisdiction, a little above. The barony of Berkeley was granted in 1 Ric. I., to be holden by the service of five knights, which was afterwards reduced to three.
Nicolas"s Report of Claim to Barony of L"Isle, Appendix, p. 318.
[463] A charter of Henry I., published in the new edition of Rymer (i.
p. 12), fully confirms what is here said. Sciatis quod concedo et praecipio, ut a modo comitatus mei et hundreda in illis locis et iisdem terminis sedeant, sicut sederunt in tempore regis Edwardi, et non aliter. Ego enim, quando voluero, faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam. Et si modo exurgat placitum de divisione terrarum, si est inter barones meos dominicos, tractetur placitum in curea mea. Et si est inter vava.s.sores duorum dominorum, tractetur in comitatu. Et hoc duello fiat, nisi in eis remanserit. Et volo et praecipio, ut omnes de comitatu eant ad comitatus et hundreda, sicut fecerunt in tempore regis Edwardi. But it is also easily proved from the Leges Henrici Primi.
[464] See the ensuing part of this note.
[465] This pedigree is elaborately, and with pious care, traced by Mr.
Stapleton, in his excellent introduction to the old chronicle of London, already quoted. The name Alwyn appears rather Saxon than Norman, so that we may presume the first mayor to have been of English descent; but whether he were a merchant, or a landholder living in the city, must be undecided.
[466] Hist. de Paris, vol. iii. p. 231.
[467] John of Troyes says, in 1467, that from sixty to eighty thousand men appeared in arms. Dulaure (Hist. de Paris, vol. iii. p. 505) says this gives 120,000 for the whole population; but it gives double, which is incredible. In the thirteenth and fourteenth centuries the houses were still cottages: only four streets were paved; they were very narrow and dirty, and often inundated by the Seine. Ib. p. 198.
[468] This doubt was soon afterwards changed into a proposition, strenuously maintained by the supposed compiler of these Reports, lord Redesdale, on the claim to the barony of L"Isle in 1829. The ancestor had been called by writ to several parliaments of Edw. III.; and having only a daughter, the negative argument from the omission of his posterity is of little value; for though the husbands of heiresses were frequently summoned, this does not seem to have been an universal practice. It was held by lord Redesdale, that, at least until the statute of 5 Richard II. c. 4, no hereditary or even personal right to the peerage was created by the writ of summons. The house of lords rejected the claim, though the language of their resolution is not conclusive as to the principle. The opinion of lord R. has been ably impugned by Sir Harris Nicolas, in his Report of the L"Isle Peerage, 1829.
[469] The Lords" committee (Second Report, p. 436) endeavour to elude the force of this authority; but it manifestly appears that the Nevilles were preferred to the Fanes for the particular barony in question; though some satisfaction was made to the claimant of the latter family by calling her to a different peerage.
[470] The continuance of barony by tenure has been controverted by Sir Harris Nicolas, in some remarks on such a claim preferred by the present earl Fitzharding while yet a commoner, in virtue of the possession of Berkeley castle, published as an Appendix to his Report of the L"Isle Peerage. In the particular case there seem to have been several difficulties, independently of the great one, that, in the reign of Charles II., barony by tenure had been finally condemned. But there is surely a great general difficulty on the opposite side, in the hypothesis that, while it is acknowledged that there were, in the reigns of Edward I. and Edward II., certain known persons holding by barony and called peers of the realm, it could have been agreeable to the feudal or to the English const.i.tution that the king, by refusing to the posterity of such barons a writ of summons to parliament, might deprive them of their n.o.bility, and reduce them for ever to the rank of commoners.
[471] It has been doubted, notwithstanding the authority of Spelman, and some earlier but rather precarious testimony, whether the chancellor before the Conquest was any more than a scribe or secretary. Palgrave, in the Quarterly Review, x.x.xiv. 291. The Anglo-Saxon charters, as far as I have observed, never mention him as a witness; which seems a very strong circ.u.mstance. Ingulfus, indeed, has given a pompous account of chancellor Turketul; and, if the history ascribed to Ingulfus be genuine, the office must have been of high dignity. Lord Campbell a.s.sumes this in his Lives of the Chancellors.
[472] The words of the pet.i.tion and answer are the following:--
"Item, que nul franc homme ne soit mys a respondre de son franc tenement, ne de riens qui touche vie et membre, fyns ou redemptions, par apposailles devant le conseil notre seigneur le roi, ne devant ses ministres queconques, sinoun par proces de ley de ces en arere use."
"Il plest a notre seigneur le roi que les leies de son roialme soient tenuz et gardez en lour force, et que nul homme soit tenu a respondre de son fraunk tenement, sinoun par processe de ley: mes de chose que touche vie ou membre, contemptz ou excesse, soit fait come ad este use ces en arere." Rot. Par. ii. 228.
It is not easy to perceive what was reserved by the words "chose que touche vie ou membre;" for the council never determined these. Possibly it regarded accusations of treason or felony, which they might entertain as an inquest, though they would ultimately be tried by a jury.
Contempts are easily understood; and by excesses were meant riots and seditions. These political offences, which could not be always safely tried in a lower court, it was the constant intention of the government to reserve for the council.
[473] See Note in p. 145, for the statute 31 H. VI. c. 2.
[474] See Const.i.tutional History of England, vol. i. p. 49. (1842.)
[475] It has been mentioned in a former note, on Mr. Allen"s authority, that the folcland had acquired the appellation _terra regis_ before the Conquest.
[476] A presumptive proof of this may be drawn from a chapter in the Laws of Henry I. c. 81, where the penalty payable by a villein for certain petty offences is set at thirty pence; that of a _cotset_ at fifteen; and of a theow at six. The pa.s.sage is extremely obscure; and this proportion of the three cla.s.ses of men is almost the only part that appears evident. The cotset, who is often mentioned in Domesday, may thus have been an inferior villein, nearly similar to what Glanvil and later law-books call such.
[477] The following pa.s.sage in the Chronicle of Brakelond does not mention any manumission of the ceorl on whom abbot Samson conferred a manor:--Unum solum manerium carta sua confirmavit cuidam Anglico natione, _glebae adscripto_, de cujus fidelitate plenius confidebat quia bonus agricola erat, et quia nesciebat loqui Gallice. p. 24.
[478] Mr. Wright has given a few specimens in Essays on the Literature and Popular Superst.i.tions of England in the Middle Ages, vol. i. p. 257.
In fact we may reckon Piers Plowman an instance of popular satire, though far superior to the rest.
CHAPTER IX.[479]
ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES.