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$Title{History Of Europe During The Middle Ages
Part XXIV}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part XXIV

     The preservation of order throughout the country was originally intrusted
not only to the sheriff, coroner, and constables, but to certain magistrates
called conservators of the peace.  These, in conformity to the democratic
character of our Saxon government, were elected by the freeholders in their
county court. ^b But Edward I. issued commissions to carry into effect the
statute of Winton; and from the beginning of Edward III.'s reign the
appointment of conservators was vested in the crown, their authority gradually
enlarged by a series of statutes, and their titles changed to that of
justices.  They were empowered to imprison and punish all rioters and other
offenders, and such as they should find by indictment or suspicion to be
reputed thieves or vagabonds, and to take sureties for good behavior from
persons of evil fame. ^c Such a jurisdiction was hardly more arbitrary than,
in a free and civilized age, it has been thought fit to vest in magistrates;
but it was ill endured by a people who placed their notions of liberty in
personal exemption from restraint rather than any political theory.  An act
having been passed (2 R. II. stat. 2, c. 6), in consequence of unusual riots
and outrages, enabling magistrates to commit the ringleaders of tumultuary
assemblies without waiting for legal process till the next arrival of justices
of jail delivery, the commons petitioned next year against this "horrible
grievous ordinance," by which "every freeman in the kingdom would be in
bondage to these justices," contrary to the great charter, and to many
statutes, which forbid any many to be taken without due course of law. ^d So
sensitive was their jealousy of arbitrary imprisonment, that they preferred
enduring riot and robbery to chastising them by any means that might afford a
precedent to oppression, or weaken men's reverence for Magna Charta.

[Footnote b: Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203.]

[Footnote c: 1 E. III. stat.  2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; 7 R.
II. c. 5.  The institution excited a good deal of ill-will, even before these
strong acts were passed.  Many petitions of the commons in the 28th E. III.,
and other years, complain of it.  Rot. Parl. vol. ii.]

[Footnote d: Rot. Parl. vol. iii. p. 65.  It may be observed that this act, 2
E. II. c. 16, was not founded on a petition, but on the king's answer; so that
the commons were not real parties to it, and accordingly call it an ordinance
in their present petition.  This naturally increased their animosity in
treating it as an infringement of the subject's right.]

     There are two subjects remaining to which this retrospect of the state of
manners naturally leads us, and which I would not pass unnoticed, though not
perhaps absolutely essential to a constitutional history; because they tend in
a very material degree to illustrate the progress of society, with which civil
liberty and regular government are closely connected.  These are, first, the
servitude or villenage of the peasantry, and their gradual emancipation from
that condition; and, secondly, the continual increase of commercial
intercourse with foreign countries.  But as the latter topic will fall more
conveniently into the next part of this work, I shall postpone its
consideration for the present.

     In a former passage, I have remarked of the Anglo-Saxon ceorls that
neither their situation nor that of their descendants for the earlier reigns
after the Conquest appears to have been mere servitude.  But from the time of
Henry II., as we learn from Glanvil, the villein, so called, was absolutely
dependent upon his lord's will, compelled to unlimited services, and destitute
of property, not only in the land he held for his maintenance, but in his own
acquisitions. ^e If a villein purchased or inherited land, the lord might
seize it; if he accumulated stock, its possession was equally precarious.
Against his lord he had no right of action; because his indemnity in damages,
if he could have recovered any, might have been immediately taken away.  If he
fled from his lord's service, or from the land which he held, a writ issued de
nativitate probanda, and the master recovered his fugitive by law.  His
children were born to the same state of servitude; and, contrary to the rule
of the civil law, where one parent was free and the other in villenage, the
offspring followed their father's condition. ^f

[Footnote e: Glanvil, l. v. c. 5.]

[Footnote f: According to Bracton, the bastard of a nief, or female villein,
was born in servitude; and where the parents lived on a villein tenement, the
children of a nief, even though married to a freeman, were villeins, l. iv. c.
21; and see Beames' translation of Glanvil, p. 109. But Littleton lays down an
opposite doctrine, that a bastard was necessarily free; because, being the
child of no father in the contemplation of law, he could not be presumed to
inherit servitude from any one; and makes no distinction as to the parent's
residence.  Sect. 188. I merely take notice of this change in the law between
the reigns of Henry III. and Edward IV. as an instance of the bias which the
judges showed in favor of personal freedom.  Another, if we can rely upon it,
is more important.  In the reign of Henry II. a freeman marrying a nief, and
settling on a villein tenement, lost the privileges of freedom during the time
of his occupation; legem terrae quasi nativus amittit.  Glanvil, l. v. c. 6.
This was consonant to the customs of some other countries, some of which went
further, and treated such a person forever as a villein.  But, on the
contrary, we find in Britton, a century later, that the nief herself by such a
marriage became free during the coverture.  c. 31.  [Note XXVIII.]]

     This was certainly a severe lot; yet there are circumstances which
materially distinguish it from slavery.  The condition of villenage, at least
in later times, was perfectly relative; it formed no distinct order in the
political economy.  No man was a villein in the eye of law, unless his master
claimed him; to all others he was a freeman, and might acquire, dispose of, or
sue for property without impediment.  Hence Sir E. Coke argues that villeins
are included in the 29th article of Magna Charta: "No freeman shall be
disseized nor imprisoned." ^g For murder, rape, or mutilation of his villein,
the lord was indictable at the king's suit; though not for assault or
imprisonment, which were within the sphere of his seignorial authority. ^h

[Footnote g: I must confess that I have some doubts how far this was law at
the epoch of Magna Charta.  Glanvil and Bracton both speak of the status
villenagii as opposed to that of liberty, and seem to consider it as a civil
condition, not a merely personal relation.  The civil law and the French
treatise of Beaumanoir hold the same language.  And Sir Robert Cotton
maintains without hesitation that villeins are not within the 29th section of
Magna Charta, "being excluded by the word liber." Cotton's Posthuma, p. 223.
Britton, however, a little after Bracton, says that in an action the villein
is answerable to all men, and all men to him.  P. 79. And later judges, in
favorem libertatis, gave this construction to the villein's situation, which
must therefore be considered as the clear law of England in the fourteenth and
fifteenth centuries.]

[Footnote h: Littleton, sect. 189, 190, speaks only of an appeal in the two
former cases; but an indictment is a fortiori; and he says, sect. 194, that an
indictment, though not an appeal, lies against the lord for maiming his
villein.]

     This class was distinguished into villeins regardant, who had been
attached from time immemorial to a certain manor, and villeins in gross, where
such territorial prescription had never existed, or had been broken. In the
condition of these, whatever has been said by some writers, I can find no
manner of difference; the distinction was merely technical, and affected only
the mode of pleading. ^i The term in gross is appropriated in our legal
language to property held absolutely and without reference to any other.  Thus
it is applied to rights of advowson or of common, when possessed simply and
not as incident to any particular lands.  And there can be no doubt that it
was used in the same sense for the possession of a villein. ^j But there was a
class of persons, sometimes inaccurately, confounded with villeins, whom it is
more important to separate.  Villenage had a double sense, as it related to
persons or to lands.  As all men were free or villeins, so all lands were held
by a free or villein tenure.  As a villein might be enfeoffed of freeholds,
though they lay at the mercy of his lord, so a freeman might hold tenements in
villenage.  In this case his personal liberty subsisted along with the burdens
of territorial servitude. He was bound to arbitrary service at the will of the
lord, and he might by the same will be at any moment dispossessed; for such
was the condition of his tenure.  But his chattels were secure from seizure,
his person from injury, and he might leave the land whenever he pleased. ^k

[Footnote i: Gurdon, on Courts Baron, p. 592, supposes the villein in gross to
have been the Lazzus or Servus of early times, a domestic serf, and of an
inferior species to the cultivator, or villein regardant.  Unluckily Bracton
and Littleton do not confirm this notion, which would be convenient enough;
for in Domesday Book there is a marked distinction between the Servi and
Villani.  Blackstone expresses himself inaccurately when he says the villein
in gross was annexed to the person of the lord, and transferable by deed from
one owner to another.  By this means indeed a villein regardant would become a
villein in gross, but all villeins were alike liable to be sold by their
owners.  Littleton, sect. 181. Blomefield's Norfolk, vol. iii. p. 860.  Mr.
Hargrave supposes that villeins in gross were never numerous (Case of
Somerset, Howell's State Trials, vol. xx. p. 42); drawing this inference from
the few cases relative to them that occur in the Year-books.  And certainly
the form of a writ de nativitate probanda, and the peculiar evidence it
required, which may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s
argument, are only applicable to the other species.  It is a doubtful point
whether a freeman could, in contemplation of law, become a villein in gross;
though his confession in a court of record, upon a suit already commenced (for
this was requisite), would estop him from claiming his liberty; and hence
Bracton speaks of this proceeding as a mode by which a freeman might fall into
servitude.]

[Footnote j: [Note XXIX.]]

[Footnote k: Bracton, l. ii. c. 8; l. iv. c. 28; Littleton, sect. 172.]

     From so disadvantageous a condition as this of villenage it may cause
some surprise that the peasantry of England should have ever emerged.  The law
incapacitating a villein from acquiring property, placed, one would imagine,
an insurmountable barrier in the way of his enfranchisement.  It followed from
thence, and is positively said by Glanvil, that a villein could not buy his
freedom, because the price he tendered would already belong to his lord. ^l
And even in the case of free tenants in villenage it is not easy to comprehend
how their uncertain and unbounded services could ever pass into slight
pecuniary commutations; much less how they could come to maintain themselves
in their lands and mock the lord with a nominal tenure, according to the
custom of the manor.

[Footnote l: Glanvil, l. iv. c. 5.]

     This, like many others relating to the progress of society, is a very
obscure inquiry.  We can trace the pedigree of princes, fill up the catalogue
of towns besieged and provinces desolated, describe even the whole pageantry
of coronations and festivals, but we cannot recover the genuine history of
mankind.  It has passed away with slight and partial notice by contemporary
writers; and our most patient industry can hardly at present put together
enough of the fragments to suggest a tolerably clear representation of ancient
manners and social life.  I cannot profess to undertake what would require a
command of books as well as leisure beyond my reach; but the following
observations may tend a little to illustrate our immediate subject, the
gradual extinction of villenage.

     If we take what may be considered as the simplest case, that of a manor
divided into demesne lands of the lord's occupation and those in the tenure of
his villeins, performing all the services of agriculture for him, it is
obvious that his interest was to maintain just so many of these as his estate
required for its cultivation.  Land, the cheapest of articles, was the price
of their labor; and though the law did not compel him to pay this or any other
price, yet necessity, repairing in some degree the law's injustice, made those
pretty secure of food and dwellings who were to give the strength of their
arms for his advantage.  But in course of time, as alienations of small
parcels of manors to free tenants came to prevail, the proprietors of land
were placed in a new situation relatively to its cultivators.  The tenements
in villenage, whether by law or usage, were never separated from the lordship,
while its domain was reduced to a smaller extent through subinfeudations,
sales, or demises for valuable rent.  The purchasers under these alienations
had occasion for laborers; and these would be free servants in respect of such
employers, though in villenage to their original lord.  As he demanded less of
their labor, through the diminution of his domain, they had more to spare for
other masters; and retaining the character of villeins and the lands they held
by that tenure, became hired laborers in husbandry for the greater part of the
year.  It is true that all their earnings were at the lord's disposal, and
that he might have made a profit of their labor when he ceased to require it
for his own land.  But this, which the rapacity of more commercial times would
have instantly suggested, might escape a feudal superior, who, wealthy beyond
his wants, and guarded by the haughtiness of ancestry against the desire of
such pitiful gains, was better pleased to win the affection of his dependants
than to improve his fortune at their expense.

     The services of villenage were gradually rendered less onerous and
uncertain.  Those of husbandry, indeed, are naturally uniform, and might be
anticipated with no small exactness.  Lords of generous tempers granted
indulgences which were either intended to be or readily became perpetual. And
thus, in the time of Edward I., we find the tenants in some manors bound only
to stated services, as recorded in the lord's book. ^m Some of these, perhaps,
might be villeins by blood; but free tenants in villenage were still more
likely to obtain this precision in their services; and from claiming a
customary right to be entered in the court-roll upon the same terms as their
predecessors, prevailed at length to get copies of it for their security. ^n
Proofs of this remarkable transformation from tenants in villenage to
copyholders are found in the reign of Henry III.  I do not know, however, that
they were protected, at so early an epoch, in the possession of their estates.
But it is said in the Year Book of the 42d of Edward III. to be "admitted for
clear law, that, if the customary tenant or copyholder does not perform his
services, the lord may seize his land as forfeited." ^o It seems implied
herein, that, so long as the copyholder did continue to perform the regular
stipulations of his tenure, the lord was not at liberty to divest him of his
estate; and this is said to be confirmed by a passage in Britton, which has
escaped my search; though Littleton intimates that copyholders could have no
remedy against their lord. ^p However, in the reign of Edward IV. this was put
out of doubt by the judges, who permitted the copyholder to bring his action
to trespass against the lord for dispossession.

[Footnote m: Dugdale's Warwickshire, apud Eden's State of the Poor, vol. i. p.
13.  A passage in another local history rather seems to indicate that some
kind of delinquency was usually alleged, and some ceremony employed, before
the lord entered on the villein's land.  In Gissing manor, 39 E. III., the
jury present, that W. G., a villein by blood, was a rebel and ungrateful
toward his lord, for which all his tenements were seized.  His offence was the
having said that the lord kept four stolen sheep in his field.  Blomefield's
Norfolk, vol. i. p. 114.]

[Footnote n: Gurdon on Courts Baron, p. 574.]

[Footnote o: Brooke's Abridgm.  Tenant par copie, I.  By the extent-roll of
the manor of Brisingham in Norfolk, in 1254, it appears that there were then
ninety-four copyholders and six cottagers in villenage; the former performing
many, but determinate services of labor for the lord. Blomefield's Norfolk,
vol. i. p. 34.]

[Footnote p: Littl. sect. 77.  A copyholder without legal remedy may seem
little better than a tenant in mere villenage, except in name.  But though,
from the relation between the lord and copyholder, the latter might not be
permitted to sue his superior, yet it does not follow that he might not bring
his action against any person acting under the lord's direction, in which the
defendant could not set up an illegal authority; just as, although no writ
runs against the king, his ministers or officers are not justified in acting
under his command contrary to law.  I wish this note to be considered as
correcting one in my first volume, p. 198, where I have said that a similar
law in France rendered the distinction between a serf and a homme de poote
little more than theoretical.]

     While some of the more fortunate villeins crept up into property as well
as freedom under the name of copyholders, the greater part enfranchised
themselves in a different manner.  The law, which treated them so harshly, did
not take away the means of escape; nor was this a matter of difficulty in such
a country as England.  To this, indeed, the unequal progression of agriculture
and population in different counties would have naturally contributed.  Men
emigrated, as they always must, in search of cheapness or employment,
according to the tide of human necessities.  But the villein, who had no
additional motive to urge his steps away from his native place, might well
hope to be forgotten or undiscovered when he breathed a freer air, and engaged
his voluntary labor to a distant master. The lord had indeed an action against
him; but there was so little communication between remote parts of the
country, that it might be deemed his fault or singular ill-fortune if he were
compelled to defend himself. Even in that case the law inclined to favor him;
and so many obstacles were thrown in the way of these suits to reclaim
fugitive villeins, that they could not have operated materially to retard
their general enfranchisement. ^q In one case, indeed, that of unmolested
residence for a year and a day within a walled city or borough, the villein
became free, and the lord was absolutely barred of his remedy.  This provision
is contained even in the laws of William the Conqueror, as contained in
Hoveden, and, if it be not an interpolation, may be supposed to have had a
view to strengthen the population of those places which were designed for
garrisons.  This law, whether of William or not, is unequivocally mentioned by
Glanvil. ^r Nor was it a mere letter.  According to a record in the sixth of
Edward II., Sir John Clavering sued eighteen villeins of his manor of Cossey,
for withdrawing themselves therefrom with their chattels; whereupon a writ was
directed to them; but six of the number claimed to be freemen, alleging the
Conqueror's charter, and offering to prove that they had lived in Norwich,
paying scot and lot, about thirty years; which claim was admitted. ^s

[Footnote q: See the rules of pleading and evidence in questions of villenage
fully stated in Mr. Hargrave's argument in the case of Somerset. Howell's
State Trials, vol. xx. p. 38.]

[Footnote r: L. v. c. v.]

[Footnote s: Blomefield's Norfolk, vol. i. p. 657.  I know not how far this
privilege was supposed to be impaired by the statute 34 E. III. c. 11; which,
however, might, I should conceive, very well stand along with it.]

     By such means a large proportion of the peasantry before the middle of
the fourteenth century had become hired laborers instead of villeins.  We
first hear of them on a grand scale in an ordinance made by Edward III. in the
twenty-third year of his reign.  This was just after the dreadful pestilence
of 1348, and it recites that, the number of workmen and servants having been
greatly reduced by that calamity, the remainder demanded excessive wages from
their employers.  Such an enhancement in the price of labor, though founded
exactly on the same principles as regulate the value of any other commodity,
is too frequently treated as a sort of crime by lawgivers, who seem to grudge
the poor that transient melioration of their lot which the progress of
population, or other analogous circumstances, will, without any interference,
very rapidly take away.  This ordinance therefore enacts that every man in
England, of whatever condition, bond or free, of able body, and within sixty
years of age, not living of his own, nor by any trade, shall be obliged, when
required, to serve any master who is willing to hire him at such wages as were
usually paid three years since, or for some time preceding; provided that the
lords of villeins or tenants in villenage shall have the preference of their
labor, so that they retain no more than shall be necessary for them.  More
than these old wages is strictly forbidden to be offered, as well as demanded.
No one is permitted, under color of charity, to give alms to a beggar.  And,
to make some compensation to the inferior classes for these severities, a
clause is inserted, as wise, just, and practicable as the rest, for the sale
of provisions at reasonable prices. ^t

[Footnote t: Stat. 23 E. III.]

     This ordinance met with so little regard that a statute was made in
parliament two years after, fixing the wages of all artificers and husbandmen,
with regard to the nature and season of their labor.  From this time it became
a frequent complaint of the commons that the statute of laborers was not kept.
The king had in this case, probably, no other reason for leaving their
grievance unredressed than his inability to change the order of Providence.  A
silent alteration had been wrought in the condition and character of the lower
classes during the reign of Edward III.  This was the effect of increased
knowledge and refinement, which had been making a considerable progress for
full half a century, though they did not readily permeate the cold region of
poverty and ignorance.  It was natural that the country people, or uplandish
folk, as they were called, should repine at the exclusion from that enjoyment
of competence, and security for the fruits of their labor, which the
inhabitants of towns so fully possessed.  The fourteenth century was, in many
parts of Europe, the age when a sense of political servitude was most keenly
felt.  Thus the insurrection of the Jacquerie in France about the year 1358
had the same character, and resulted in a great measure from the same causes,
as that of the English peasants in 1382.  And we may account in a similar
manner for the democratical tone of the French and Flemish cities, and for the
prevalence of a spirit of liberty in Germany and Switzerland. ^u

[Footnote u: [Note XXX.]]

     I do not know whether we should attribute part of this revolutionary
concussion to the preaching of Wicliffe's disciples, or look upon both one and
the other as phenomena belonging to that particular epoch in the progress of
society.  New principles, both as to civil rule and religion, broke suddenly
upon the uneducated mind, to render it bold, presumptuous, and turbulent.  But
at least I make little doubt that the dislike of ecclesiastical power, which
spread so rapidly among the people at this season, connected itself with a
spirit of insubordination and an intolerance of political subjection.  Both
were nourished by the same teachers, the lower secular clergy; and however
distinct we may think a religious reformation from a civil anarchy, there was
a good deal common in the language by which the populace were inflamed to
either one or the other.  Even the scriptural moralities which were then
exhibited, and which became the foundation of our theatre, afforded fuel to
the spirit of sedition.  The common origin and common destination of mankind,
with every other lesson of equality which religion supplies to humble or to
console, were displayed with coarse and glaring features in these
representations. The familiarity of such ideas has deadened their effects upon
our minds; but when a rude peasant, surprisingly destitute of religious
instruction during that corrupt age of the church, was led at once to these
impressive truths, we cannot be astonished at the intoxication of mind they
produced. ^v

[Footnote v: I have been more influenced by natural probabilities than
testimony in ascribing this effect to Wicliffe's innovations, because the
historians are prejudiced witnesses against him.  Several of them depose to
the connection between his opinions and the rebellion of 1382; especially
Walsingham, p. 288.  This implies no reflection upon Wicliffe, any more than
the crimes of the anabaptists in Munster do upon Luther.  Every one knows the
distich of John Ball, which comprehends the essence of religious democracy:

     "When Adam delved and Eve span,
     Where was then the gentleman?"

     The sermon of this priest, as related by Walsingham, p. 275, derives its
argument for equality from the common origin of the species.  He is said to
have been a disciple of Wicliffe.  Turner's Hist. of England, vol. ii. p.
420.]