When the bride married out of the power of the lord a new element was brought to bear on the case: the lord was entitled to a special compensation for the loss of a subject and of her progeny[296]. When the case is mentioned in manorial documents, the fine gets heightened accordingly, and sometimes it is even expressly stated that an arbitrary payment will be exacted. The fine for incontinence naturally connects itself with the merchet, and a Glastonbury manorial instruction enjoins the Courts to present such cases to the bailiffs; the lord loses his merchet from women who go wrong and do not get married[297].
Origin and modifications of merchet.
Such is the merchet of our extents and Court rolls. As I said, it has great importance from the point of view of social history. Still it would be wrong to consider it as an unfailing test of status. Although it is often treated expressly as a note of serfdom[298], some facts point to the conclusion that its history is a complex one. In the first place this merchet fine occurs in the extents sporadically as it were. The Hundred Rolls, for instance, mention it almost always in Buckinghamshire, and in some hundreds of Cambridgeshire. In other hundreds of this last county it is not mentioned. However much we lay to the account of casual omissions of the compilers, they are not sufficient to explain the general contrast. It would be preposterous to infer that in the localities first mentioned the peasants were one and all descended from slaves, and that in those other localities they were one and all personally free. And so we are driven to the inference, that different customs prevailed in this respect in places immediately adjoining each other, and that not all the feudal serfs descended from Saxon slaves paid merchet.
If, on the one hand, not all the serfs paid merchet, on the other there is sufficient evidence to show that it was paid in some cases by free people. A payment of this kind was exacted sometimes from free men in villainage, and even from socage tenants. I shall have to speak of this when treating of the free peasantry; I advert to the fact now in order to show that the most characteristic test of personal servitude does not cover the whole ground occupied by the class, and at the same time spreads outside of its boundary.
This observation leads us to several others which are not devoid of importance. As soon as the notion arose that personal servitude was implied by the payment of merchet,—as soon as such a notion got sanctioned by legal theory, the fine was extended in practice to cases where it did not apply originally. We have direct testimony to the effect that feudal lords introduced it on their lands in places where it had never been paid[299], and one cannot help thinking that such administrative acts as the survey of 1279-1280, the survey represented by the Hundred Rolls, materially helped such encroachments. The juries made their presentments in respect of large masses of peasantry, under the preponderating influence of the gentry and without much chance for the verification of particular instances. The description was not false as a whole, but it was apt to throw different things into the same mould, and to do it in the interest of landed proprietors. Again, the variety of conditions in which we come across the merchet, leads us to suppose that this term was extended through the medium of legal theory to payments which differed from each other in their very essence: the commutation of the 'jus primae noctis,' the compensation paid to the lord for the loss of his bondwoman leaving the manor, and the fine for marriage to be levied by the township or the hundred, were all thrown together. Last, but not least, the vague application of this most definite of social tests corroborates what has been already inferred from terminology, namely, that the chief stress was laid in all these relations, not on legal, but on economic distinctions. The stratification of the class and the determination of the lord's rights both show traits of legal status, but these traits lose in importance in comparison with other features that have no legal meaning, or else they spread over groups and relations which come from different quarters and get bound up together only through economic conditions.
Servile customs.
The same observations hold good in regard to other customs which come to be considered as implying personal servitude[300]. Merchet was the most striking consequence of unfreedom, but manorial documents are wont to connect it with several others. It is a common thing to say that a villain by birth cannot marry his daughter without paying a fine, or permit his son to take holy orders, or sell his calf or horse, that he is bound to serve as a reeve, and that his youngest son succeeds to the holding after his death[301]. This would be a more or less complete enumeration, and I need not say that in particular cases sometimes one and sometimes another item gets omitted. The various pieces do not fit well together: the prohibition against selling animals is connected with disabilities as to property, and not derived directly from the personal tie[302]; as for the rule of succession, it testifies merely to the fact that the so-called custom of Borough English was most widely spread among the unfree class. The obligation of serving as a reeve or in any other capacity is certainly derived from the power of a lord over the person of his subject; he had it always at his discretion to take his man away from the field, and to employ him at pleasure in his service. Lastly, the provision that the villain may not allow his son to receive holy orders stands on the same level as the provision that he may not give his daughter in marriage outside the manor: either of these prohibited transactions would have involved the loss of a subject.
Control over the movements of the peasantry.
We must place in the same category all measures intended to prevent directly or indirectly the passage of the peasantry from one place to the other. The instructions issued for the management of the Abbot of Gloucester's estates absolutely forbid the practice of leaving the lord's land without leave[303]. Still, emigration from the manor could not be entirely stopped; from time to time the inhabitants wandered away in order to look out for field-work elsewhere, or to take up some craft or trade. In this case they had to pay a kind of poll-tax (chevagium), which was, strictly speaking, not rent: very often it was very insignificant in amount, and was replaced by a trifling payment in kind, for instance, by the obligation to bring a capon once a year[304]. The object was not so much to get money as to retain some hold over the villain after he had succeeded in escaping from the lord's immediate sway. There are no traces of a systematic attempt to tax and ransom the work of dependents who have left the lord's territory—nothing to match the thorough subjection in which they were held while in the manor. And thus the lord was forced in his own interest to accept nominal payments, to concentrate his whole attention on the subjects under his direct control, and to prevent them as far as possible from moving and leaving the land. In regulations for the management of estates we often find several paragraphs which have this object in view. Sometimes the younger men get leave to work outside the lord's possessions, but only while their father remains at home and occupies a holding. Sometimes, again, the licence is granted under the condition that the villain will remain in one of his lord's tithings[305], an obligation which could be fulfilled only if the peasant remained within easy reach of his birth-place. Special care is taken not to allow the villains to buy free land in order to claim their freedom on the strength of such free possession[306]. Every kind of personal commendation to influential people is also forbidden[307].
Notwithstanding all these rules and precepts, every page of the documents testifies to frequent migrations from the manors in opposition to the express will of the landowners. The surveys tell of serfs who settle on strange land even in the vicinity of their former home[308]. It is by no means exceptional to find mention of enterprising landlords drawing away the population from their neighbours' manors[309]. The fugitive villain and the settler who comes from afar are a well-marked feature of this feudal society[310].