Lower classes can be of different kinds. Where they are [[34]]only considered inferior to the upper classes, or excluded from governmental functions, it is easy to see that they are not slaves. Greater difficulties are presented by some other cases. Sometimes a lower class consists of free labourers. Now theoretically free labourers are easy to distinguish from slaves: the slave is compelled to work, the free labourer voluntarily submits to it. But the accounts of the ethnographers do not always make it clear, which of these two kinds of labourers we have to deal with in any particular case. When a labourer lives in the house of his master and is wholly dependent on him, it may be rather difficult at first sight to decide whether he is free or a slave. Sometimes the details given are sufficient to settle the question; if not, we shall have to leave it undecided.
A lower class can also consist of serfs. What they are, and what is the difference between them and slaves, will be shown in the next paragraph.
§ 8. Distinction of slavery from kindred phenomena.
V. Serfs.
What we have said of free labourers applies also to serfs: to draw the theoretical line of demarcation between them and slaves is not so very difficult; but practically it is not always easy to decide, whether a subjected class we get some information about consists of slaves or of serfs; sometimes even, because of the unstable terminology and the scanty information, it is quite impossible. But there are several unequivocal cases of serfdom, too, on record in history. Mentioning a few of these will suffice to give the reader a clear idea of its nature as distinct from slavery.
In Germany Leibeigene was, in the earliest times, synonymous with slave. The law placed the Leibeigenen on a level with the domestic animals. The master had the ius vitae ac necis, an unlimited right to sell them, the right to exact from them all possible services, to marry and divorce them. The owner of the Leibeigene was also owner of his goods and chattels. The lord was responsible for any damages caused by his servant, as for those caused by his horse, and might claim indemnity [[35]]if any one injured his man. But gradually this slavery was mitigated into a state of subserviency. First the claim to unlimited services was waived, and on the Leibeigene were imposed definite Roboten (labour dues) and tributes. He had to work on fixed days, to perform fixed services, to pay fixed sums. His earnings legally still belonged to the lord, and the latter succeeded to his goods; but from the 13th century the lord’s right of inheritance dwindled into a present (mortuarium). From the 14th century the serfs acquired a usufruct of the soil they tilled, and so their obligations assumed more or less the character of a quit-rent. Sometimes they were even allowed to choose another lord. In the Frankish empire the lords were already forbidden to sell them abroad; from the 13th century they lost the right to kill them, and afterwards also the right to whip them. The church took away from the lord the right to divorce his serfs, if the marriage had been contracted with his consent. The ius primae noctis remained longer. Moreover, the relations of the serfs towards others were gradually recognized by law, at first only as to unjust acts, later on as to contracts. And so, when at last serfdom was abolished, the only changes effected by this were: allowing of the right of emigrating, abolition of the marriage-consent and of the court-services and personal tributes.
Thus Siegel describes the development of serfdom in Germany[49]. Other writers come to nearly the same conclusions. According to Brunner, there was among the Western Germans a class between freemen and slaves, called Liten or Aldien, a hereditary class, whose position was secured by law. They had the right of acquiring property and making contracts; they could by emancipation become fully free, or purchase their own liberty. To marry they wanted the consent of their lord. They had the right of feud (Fehderecht), and when they were killed a wergild was paid, that fell partly to the lord. Their right of inheritance was originally not recognized[50].
Schröder remarks, that the difference between freemen and subservients (Hörigen) consisted in this, that the landed possessions [[36]]of the latter were smaller and liable to tribute. Moreover, they had no connubium with freemen, nor any political rights; the wergild paid for them was one half of that paid for a freeman[51].
In medieval France a similar state of things prevailed. There were no longer slaves, but serfs. “Serfdom is a transitory stage between slavery and entire liberty. The serf of the middle ages is not, like the ancient slave, indissolubly riveted to his condition, deprived of rights by his very birth, placed on a level with the beasts of burden of his lord’s estate. Public opinion is favourable to him.” “The facts agree with the doctrine. The serf has some means of acquiring property; he may marry and have legitimate descendants, who will succeed to his goods; he may give evidence in the courts; he may purchase his liberty by means of his peculium. By getting some profits he is interested in the cultivation of the soil. Giving his labour to the land, he may expect to enjoy the fruits of it, by paying fixed tributes. By marrying his children to free women he secures the liberty of his offspring. By paying an indemnity he acquires the succession to his father’s inheritance, and the right of property over his savings.… He may dispute the tributes (tallies et cens) which the lord levies on the tenement he cultivates, invoke an enquiry of experts who attest his means, contract to pay a fixed annuity and so know beforehand what profit he may depend upon”[52].