Serfs by force or power are not those comprised in the first class of these divisions, or serfs by the fortune of war: these of course have lost their freedom through superior force. But the class under consideration are such as have been reduced to servitude by the legal act of those who had a right to dispose of them; as, for instance, a son or daughter by the act of the father[[351]]. It is painful to record a fact so abhorrent to our Christian feelings, but there cannot be the least doubt that this right was both admitted and acted upon. The father, upon whose will it literally depended whether his child should live or not, had a right at a subsequent period to decide whether the lot of that child should be freedom or bondage[[352]]. Illegitimate children, the offspring of illicit intercourse with his wyln or þeówen, may have formed the majority of those thus disposed of by a father: but in times of scarcity, it is to be feared that even the issue of legitimate marriage was not always spared[[353]]. The Frisians, when oppressed by the amount of Roman tribute, sold their wives and children: “Ac primo boves ipsos, mox agros, postremo corpora coniugum aut liberorum servitio tradebant[[354]]:” this is however an exceptional case, and the sale of wives and children appears only to have been resorted to as a last resource. But the very restriction to the exercise of this right, within particular limits of time—which we may believe the merciful intervention of the church to have brought about—speaks only too plainly for its existence in England. Even as late as the end of the seventh century, and after Christianity had been established for nearly one hundred years in this country, we find the following very distinct and clear recognitions of the right, in books of discipline compiled by two several archbishops for the guidance of their respective clergy. In the Poenitential of Theodore, archbishop of Canterbury, occurs this passage: “Pater filium suum septem annorum, necessitate compulsus, potestatem habet tradere in servitium; deinde, sine voluntate filii, licentiam tradendi non habet[[355]].” In the somewhat later Confessionale of Ecgberht, archbishop of York, we find: “Pater potest filium suum, magna necessitate compulsus, in servitutem tradere, usque ad septimum annum; deinde, sine voluntate filii, eum tradere non potest[[356]].” It is however very remarkable that in the Poenitential of the same Ecgberht the sale of a child or near relative is put down as an offence punishable by excommunication[[357]]. These are the servi alterius datione of Henry the First.
The next head includes the serfs by reason of crime. The distinction between these and the class of criminals who became slaves through compact or redemption, is that in their case servitude was the direct punishment of their offence, and not merely an indirect and mediate consequence. It seems to me at least that this sense strictly lies at the foundation of two laws of Eádweard, Ælfred’s son; of these the former says[[358]], “If any one through conviction of theft forfeit his freedom, and deliver himself up, and his kindred forsake him, and he know not who shall make bót for him; let him then be worthy of the þeówwork which thereunto appertained; and let the wer abate from the kindred.” Again, “If a freeman work upon a festival day, let him lose his freedom, or pay the wíte or lahslite[[359]].” This alternative is an alleviation of the strict law: but as forfeiture undoubtedly followed upon theft and other offences, the thief could not expect to make bót for himself, and was always exposed to the danger of incurring slavery, should another make it for him. It is however possible that his relations may have interfered to save him, without the reducing him to a servus dedititius; or even if he were so reduced, he became the serf of him that engaged (þingode) for him; whereas, if not rescued at all, he must have been a fiscal serf, in the hands of the crown or the geréfa, its officer. There exists therefore a perceptible difference between the wíteþeów whom the law made so, (even though it permitted a merciful alternative,) and the wíteþeów whose punishment would have been a mulct which exceeded his means. The law of other German tribes numbers slavery among its punishments without any reservation at all: thus among the Visigoths, he that assisted in the escape of a serf, and neither restored him nor his worth to the owner, was to become a slave in his place[[360]]. By the Bavarian law, he that could not pay a wergyld due from him, was to be enslaved together with his wife and children[[361]]. Grimm[[362]] cites the following case: “Richilda, quae libertatem suam fornicando polluit, amisit ... filiae illorum liberae permaneant, ... nisi forte adulterio vel fornicatione polluantur.” It is true that the Anglosaxon laws do not give us any enactment of a corresponding nature: nevertheless I entertain no doubt that incontinence was a ground of slavery in the case both of man and woman. Toward the end of the ninth century, Denewulf, bishop of Winchester, leased the lands of Alresford to a relative of his own, on condition of a yearly rent: “Is equidem insipiens, adulterans, stuprum, propriam religiose pactatam abominans, scortum diligens, libidinose commisit. Quo reatu, omni substantia peculiali recte privatus est, et praefatum rus ab eo abstractum rex huius patriae suae ditioni avidus devenire iniuste optavit[[363]].” However unjust the canons of Winchester might think it, it is clear that the Witena-gemót did not; for the bishop was obliged to pay 120 mancusses in gold to the king, to have back his own land. Again in the year 1002, we hear of a lady forfeiting her lands to the king, by reason of incontinence[[364]]. The consequences of this destitution can hardly have been other than servitude; and it may be at once admitted that where there were no lands to forfeit, servitude was the recognized punishment of the offence. Theodore[[365]] when apportioning the penance due to it, says, “Si intra viginti annos puella et adolescens peccaverint, i annum, et in secundo iii quadragesimas ac legitimas ferias. Si propter hoc peccatum servitio humano addicti sunt, iii quadragesimas.” Again, “Maritus si ipse seipsum in furto aut fornicatione servum facit, vel quocunque peccato[[366]],” etc.
The last division of the servi casu comprises those who have been reduced to slavery by violence or fraud, in short illegally. Illegitimate children, poor relations, unfriended strangers, young persons without power of self-defence, may thus have been seduced or forced into a servile condition of life, escape from which was always difficult, inasmuch as there is necessarily a prima facie case against the serf, and he can have no standing in the court composed only of the free. To this head seem referable the passages I have already alluded to in Theodore’s Poenitential[[367]], and which I will now cite at length: “Si quis Christianus alterum Christianum suaserit, ac in alteram regionem seduxerit, ibique eum vendiderit pro proprio servo, ille non est dignus inter Christianos requiem habere, donec redimat eum et reducat ad proprium locum.” And again: “Si quis Christianus alterum Christianum vagantem reppererit, eumque furatus fuerit ac vendiderit, non debet habere inter Christianos requiem, donec redimat eum, et pro illo furto septem annos poeniteat[[368]].”
The other great division includes all the servi natura, nativi, or serfs by reason of unfree birth; and as these are necessarily the children either of parents who are both unfree, or (under particular circumstances) of one unfree parent, it follows that their hereditary condition may arise from any one of the conditions heretofore under examination. All the legitimate children of two serfs are themselves irrevocably serfs[[369]]: but some distinctions arise where the parents are of unequal condition, as where the mother is free, the father unfree, and vice versa. In this respect the law was very different among the different tribes: the Swedish law declared in favour of liberty[[370]], the German generally the other way[[371]]. The Sachsenspiegel decides that the children follow the father’s right[[372]], and similarly the law of Henry the First[[373]] has, “Si quis de servo patre natus sit et matre libera, pro servo reddatur occisus;” and again, “Si pater sit liber et mater ancilla, pro libero reddatur occisus;” on the general principle that “semper a patre non a matre generacionis ordo texitur,” which Fortescue confirms, saying[[374]], “Lex Angliae nunquam matris, sed semper patris conditionem imitari partum iudicat, ut ex libera etiam ex nativa non nisi liberum liber generet, et non nisi servum in matrimonio procreare potest servus.” Fleta’s argument rests upon the same doctrine[[375]]. Glanville however appears to adopt the contrary view[[376]], which agrees with the maxim of the civil law, “Partus sequitur ventrem.” To the English principle I am bound to give my adhesion, inasmuch as the natural and the original social law can recognize none but the father, either in the generation, or in the subsequent rule, of the family: whatever alleviation the practices of chivalry, the worship of the Virgin mother, and the Christian doctrine of the equality of man and woman before God, may have introduced, the original feeling is on the father’s side, and the foundations of our law are based upon the all-sufficiency of his right. A woman is in the mund or keeping of a man; society exists for men only, that is, for women merely as far as they are represented by a man.
That this original right was interfered with by the law of property is not denied. But here different cases are to be considered. First, whether the serf or nativa is the property of the party who unites with him or her. Secondly whether the free party unite with some other owner’s serf or neif; next, whether the issue are born in wedlock or not; and lastly how far the public law and right is involved in the question of freedom and servitude. The last consideration in fact involves the first, because, under the first, except in the case of hardly intelligible neglect, marriage could never take place between two unequal parties at all: emancipation must have preceded the ceremony; while the civil law would of course rule that the ceremony itself, taking place by consent, was an act of emancipation not to be gainsaid. It is therefore with regard to third parties only that a question can arise[[377]]. There is no proof that such a question ever did arise among the Anglosaxons, or that it was thought needful to provide for it by law: and the earlier evidences with which this book has especially to do are either entirely silent, or so general in their expressions that we cannot decide from them upon a particular case. In fact the whole argument is reduced to the second head, viz. where one parent is the property of a third party, and where the child is born in lawful wedlock; for a child not so born is not subject to any law which binds the parents, is nullius filius, and can as little be injured as advantaged by the law.
In the strict Anglosaxon law there is no definite decision on these points: the codes of other German races, at the oldest period, are equally silent. In later times indeed we have determinations; but these, as we have observed, are contradictory. Perhaps we may take the doctrine of the Sachsenspiegel, coinciding as it does with the opinion of many, probably a majority, of our own law-sages, as the original one, especially as it is the only one in accordance with other details of family life, and with the supreme law of nature itself which leaves to the father the decision as to the life or death of the child, as to its liberty or slavery. In this sense then I agree with Sir John Fortescue and Sir Edward Coke[[378]]. It is to be remembered that we are dealing now with the condition of the offspring, not of the parent: the uncertainty that prevails with respect to the latter, in the Anglosaxon law, and the contradictory enactments of other German codes have been already noticed.
But all that has been said applies solely to the case of children born in lawful wedlock; and almost all the apparent contradictions which have been noticed in our own law, arise from a want of clear distinction on this point. The child of a free father and unfree mother, if the parents were not married, remained to the lord of the neif, according to our expressive proverb, “Mine is the calf that is born of my cow[[379]].” In Fleta’s words[[380]] the distinction is drawn most clearly, and they may therefore stand here in place of my own: “Servi autem aut nascuntur aut fiunt; nascuntur quidem ex nativo et nativa solutis vel copulatis, et eius erit servus in cuius potestate nasci contigerit[[381]]; dum tamen de soluta nativa, domini loci, quia sequitur conditionem matris, a quocunque fuerit genitus, libero vel nativo[[382]]. Si autem copulati fuerint et genitus fuerit partus a libero, licet a nativa, partus erit liber; et si de servo et libera in matrimonio, servus erit.” Thus, here again the offspring follows the father, as soon as there is a marriage to determine that there is an offspring at all, in law; but if there be no marriage, the chattel thrown into the world, like any other waif or stray belongs domino loci; it has a value, can be worked or sold; it is treasure-trove of a sort, and as it belongs to nobody else, falls to the lord, as a compensation probably for the loss of his neif’s services during pregnancy and the nonage of the child[[383]].
Whatever the origin of serfage may have been, it can hardly be questioned that the lot of the serf was a hard one; and this perhaps not so much from the amount of labour required of him, as from the total irresponsibility of the master, in the eye of the law, as to all dealings between himself and his þeów. The Christian clergy indeed did all they could to mitigate its hardships, but when has even Christianity itself been triumphant over the selfishness and the passions of the mass of men! The early pagan Germans, though in general they treated their serfs well, yet sometimes slew them, under the influence of unbridled passion: “Verberare servum ac vinculis et opere coercere rarum. Occidere solent, non disciplina et severitate, sed impetu et ira, ut inimicum, nisi quod impune est[[384]].” The church affixed a special penance to the manslaughter of a woman by her mistress, impetu et ira,—an event which probably was not unusual, considering the power of a lord over his þeówen or female slave,—and generally, a penance for the slaughter of a serf by his lord without judicial authority[[385]].
In contemplation of law, in fact, the slave is the absolute property of his lord, a chattel to be disposed of at the lord’s pleasure, and having a value only for the benefit of the lord, or of some public authority in his place. The serf cannot represent himself or others: his interests must be guarded by others, for he himself has no standing in any public court. He is not in any friðborh, or association for mutual guarantee, for he has nothing of his own to defend, and no power to defend what another has. If he be slain by a stranger, his lord claims the damages, and not his children: if the lord himself slay him, it is but the loss of so much value,—a horse, an ox, gone—more or less. Out of his death no feud can arise, for the relatives who allowed him to fall into, or remain in slavery, have renounced the family bond, and forfeited both the wergyld and the mund. If he be guilty of wrong, he cannot make compensation in money or in chattels; for he can have no property of his own save his skin: thus his skin must pay for him[[386]], and the lash be his bitter portion. He cannot defend himself by his own oath or the oaths of friends and compurgators, but, if accused, must submit to the severe, uncertain and perilous test of the ordeal. And if, when thus hunted down, he be found guilty, severe and ignominious punishment,—amounting, in a case of theft, to death by flogging for men, by burning for women,—is reserved for him[[387]]. Naturally and originally there can be no limitation in the amount or the character of labour imposed upon him, and no stipulation for reciprocal advantage in the form of protection, food or shelter. Among the Saxons the wíteþeów at least appears to have been bound to the soil, adscriptus glebae[[388]], conveyed with it under the comprehensive phrase “mid mete and mid mannum:” though in some few cases we can trace a power, vested perhaps only in certain public authorities, of transferring the slave from one estate to another[[389]]. Last, but most fearful of all, the taint of blood descended to his offspring, and the innocent progeny, to the remotest generations, were born to the same miserable fate as bowed down the guilty or unfortunate parent.
But yet there was a gleam of hope: one solitary ray that made even the surrounding darkness tolerable, and may have cheered the broken-hearted serf through years of unrequited toil and suffering. The law that reduced him to slavery made it also possible that he should be restored to freedom. It did not shut from him this blessing, however distant it might seem. Tacitus knew of liberti among the Germans, men who had been slaves, had been manumitted, and were free[[390]]. Thus in yet pagan times, general kindliness of disposition, habits of domestic intercourse, perhaps the suggestions of self-interest, may have tended to raise the condition of the serf even to the restoration of freedom: but it was the especial honour and glory of Christianity, that while it broke the spiritual bonds of sin, it ever actively laboured to relieve the heavy burthen of social servitude. We are distinctly told that Bishop Wilfrið, on receiving the grant of Selsey from Caedwealha of Wessex, immediately manumitted two hundred and fifty unfortunates, whom he found there attached to the soil,—that those, whom by baptism he had rescued from servitude to devils, might by the grant of liberty be rescued from servitude to man[[391]]. In this spirit of charity, the clergy obtained respite from labour for the þeów on the Sabbath, on certain high festivals and on the days which preceded or followed them[[392]]; the lord who compelled his þeów to labour between the sunset on Saturday and the sunset on Sunday, forfeited him altogether[[393]]; probably at first to the king or the geréfa; but in the time of Cnut the serf thus forfeited was to become folkfree[[394]]. To their merciful intervention it must also be ascribed that the will of a Saxon proprietor, laic as well as clerical, so constantly directs the manumission of a number of serfs, for the soul’s health of the testator[[395]]; Ælfred even goes so far as to give free power to the serf of bequeathing to whomsoever he pleases, whatever may have been given him for God’s sake, or he may have earned in his own moments of leisure[[396]]; and this provision, which probably implies a prohibition to the lord of removing his labourer arbitrarily from a plot of ground well cultivated by his own efforts, tends to secure to the unfortunate serf some interest in the produce of his industry: the Hungarian will recognize in it the spirit of Maria Theresia’s Urbarium. It is moreover obvious from many surviving documents, that, in the later periods, the serf could purchase his own release[[397]], at least with the lord’s consent[[398]], or be bought by another for the purpose of manumission[[399]], or even be borrowed on pledge for a term of years[[400]], during which his labour might be actively employed in laying up the means of future freedom. It cannot indeed be denied that the slave might be sold like any other chattel, and that even as late as Æðelred and Cnut, the law ventured to prohibit no more than the selling him into heathendom, or without some fault on his part[[401]]: nor can we believe that acts of the grossest oppression and tyranny were unfrequent. But from what has been already cited, it must be evident that there was a constantly growing tendency in favour of freedom, that the clergy suggested every motive, and the law made every possible effort, at least to diminish the more grievous circumstances of servitude. It is moreover to be borne in mind that a very large proportion of the þeówas at any given time, were in reality criminal serfs, convicts expiating their offences by their sufferings. Taking all the circumstances into consideration, I am disposed to think that the mere material condition of the unfree population was not necessarily or generally one of great hardship. It seems doubtful whether the labour of the serf was practically more severe, or the remuneration much less than that of an agricultural labourer in this country at this day: his lord was bound to feed him for his own sake, and if, when old and worn out, he wished to rid himself of a useless burthen, he could by an act of emancipation hand over his broken-down labourer to the care of a Church which, with all its faults, never totally lost sight of the divine precepts of charity[[402]]. We are not altogether without the means of judging as to the condition of the serf, and the provision made for him; although the instances which we may cite are not all either of one period, or one country, or indeed derived from compilations having the authority of law, they show sufficiently what opinion was entertained on this subject by some among the ruling class. In the prose version of Salomon and Saturn[[403]], it is said that every serf ought to receive yearly seven hundred and thirty loaves, that is, two loaves a day, beside morning meals and noon meals; this cannot be said to be a very niggardly portion. Again, the valuable document entituled, “Rectitudines singularum personarum[[404]],” gives details respecting the allowances made to the serfs in various prædial or domestic capacities, which would induce a belief not only that they were tolerably provided for, but even enabled by the exertion of skill and industry to lay up funds of their own towards the purchase of their freedom, the redemption of their children, or the alleviation of their own poverty. From the same authority and others, we may conclude that on an estate in general, serfs discharged the functions of ploughman, shepherd, goatherd, swineherd, oxherd and cowherd, barn-man, sower, hayward, woodward, dairymaid, and beadle or messenger; while the geneát, cotsetla, gebúr, beócere and gafolswán were probably poor freemen from whom a certain portion of labour could be demanded in consideration of their holdings[[405]], or a certain rent (gafol) reserved out of the produce of the hives, flocks or herds committed to their care: and these formed the class of the Læt and Esne, poor mercenaries, serving for hire or for their land, but not yet reduced so low in the scale as the þeów or wealh. It is not only probable that there would be distinctions in the condition of various serfs upon the same estate, but even demonstrable: it can hardly be doubted that men placed in situations of some trust, as the ploughman, oxherd or beadle, were in a somewhat higher class, and of better condition, than the mere hewers of wood and drawers of water. Now in a charter of the year 902, we find an interesting statement, which I must take leave to cite[[406]]: Denewulf bishop of Winchester and his Chapter had leased land at Eblesburne to Beornwulf, a relative of the bishop: the Chapter sent word to Beornwulf that the men, that is the serfs, were to remain attached to the land—“ðæt ða men móston on ðam lande wunian”—whether he, or any other, held it: “ðonne wǽron ðǽr þreo wíteþeówe men búrbǽrde, ⁊ þreo þeówbǽrde, ða me salde bisceop ⁊ ða hiwan tó rihtre ǽhte ⁊ hira teám:” “Now there were three convicts búrbǽrde and three þeówbǽrde, whom the bishop and the brethren gave me, together with their offspring.” The expressions used in this passage seem to show that some of the wíteþeówe men upon this estate enjoyed a higher condition than others[[407]], being cultivators or boors, while the others were more strictly slaves. The very curious and instructive dialogue of Ælfríc numbers among the serfs the yrðling or ploughman, whose occupation the author nevertheless places at the head of all the crafts, with perhaps a partial exception in favour of the smith’s[[408]].