qualification of citizenship. (3) Even in civil matters villeins were deemed free as regards third persons. They could sue and be sued in their own name, and although they were able to call in their lords as defendants when proceeded against, there was nothing in law to prevent them from appearing in their own right. The state even afforded them protection against extreme cruelty on the part of their masters in respect of life and limb, but in laying down this rule English lawyers were able to follow the precedents set by late Roman jurisprudence, especially by measures of Hadrian, Antonine and Constantine the Great.
There was one exception to this harsh treatment of villeins, namely, the rustic tenantry in manors of ancient demesne, that is, in estates which had belonged to the crown before the Conquest; had a standing-ground even against their lords as regards the tenure of their plots and the fixity of their services. Technically this right was limited to the inhabitants of manors entered in the Domesday Survey as terra regis of Edward the Confessor. On the other hand the doctrine became effective if the manors in question had been granted by later kings to subjects, because if they remained in the hand of the king the only remedy against ejectment and exaction lay in petitioning for redress without any definite right to the latter. If, however, the two conditions mentioned were forthcoming, villeins, or, as they were technically called, villein socmen of ancient demesne manors, could resist any attempt of their lords to encroach on their rights by depriving them of their holdings or increasing the amount of their customary services. Their remedy was to apply for a little writ of right in the first case and for a writ of monstraverunt in the second. These writs entitled them to appear as plaintiffs against the lord in his own manorial court and, eventually, to have the question at issue examined by way of appeal, on a writ of error, or by reservation on some legal points in the upper courts of the king. A number of cases arising from these privileges of the men of ancient demesne are published in the Notebook of Bracton and in the Abbreviatio placitorum. This exceptional procedure does not simply go back to the rule that persons who had been tenants of the king ought not to have their condition altered for the worse in consequence of a royal grant. If this were the only doctrine applicable in the case there would be no reason why similar protection should be denied to all those who held under grantees of manors escheated after the Conquest. A material point for the application of the privilege consists in the fact that ancient demesne has to be proved from the time before the Conquest, and this shows clearly that the theory was partly derived from the recognition of tenant right in villeins of the Anglo-Saxon period who, as we hive said above, were mostly ceorls, that is, freeborn men.
In view of the great difference in the legal position of the free man and of the villein in feudal common law, it became very important to define the exact nature of the conditions on which the status of a villein depended. The legal theory as to these conditions was somewhat complex, because it had to take account of certain practical considerations and of a rather abrupt transition from a previous state of things based on different premises. Of course, persons born from villein parents in lawful wedlock were villeins, but as to the condition of illegitimate children there was a good deal of hesitation. There was a tendency to apply the rule that a bastard follows the mother, especially in the case of a servile mother. In the case of mixed marriages, the condition of the child is determined by the free or villein condition of the tenement in which it was born. This notion of the influence of the tenement is well adapted to feudal notions and makes itself felt again in the case of the pursuit of a fugitive villein. He can be seized without further formalities if he is caught in his “nest,” that is, in his native place. If not, the lord can follow him in fresh pursuit for four days; once these days past, the fugitive is maintained provisionally in possession of his liberty, and the lord has to bring an action de nativo habendo and has to assume the burden of proof.
So much as to the proof of villeinage by birth or previous condition. But there were numbers of cases when the discussion as to servile status turned not on these formal points but on an examination of the services performed by the person claimed as a villein or challenged as holding in villeinage. In both cases the courts had often recourse to proof derived not from direct testimony but from indirect indications as to the kind of services that had been performed by the supposed villein. Certain services, especially the payment of merchet—the fine for marrying a daughter—were considered to be the badge of serfdom. Another service, the performance of which established a presumption as to villeinage, was compulsory service as a reeve. The courts also tried to draw a distinction from the amount and regularity of agricultural services to which a tenant was subjected. Bracton speaks of the contrast between the irregular services of a serf, “who could not know in the evening what he would have to do in the morning,” and services agreed upon and definite in their amount. The customary arrangements of the work of villeins, however, render this contrast rather fictitious. The obligations of downright villeins became to that degree settled and regular that one of the ordinary designations of the class was custumarii. Therefore in most cases there were no arbitrary exactions to go by, except perhaps one or the other tallage imposed at the will of the lord. The original distinction seems to have been made not between arbitrary and agreed but between occasional services and regular agricultural week-work. While the occasional services, even when agricultural, in no way established a presumption of villeinage, and many socmen, freemen and holders by serjeanty submitted to them, agricultural week-work was primarily considered as a trait of villeinage and must have played an important part in the process of classification of early Norman society. The villein was in this sense emphatically the man holding “by the fork and the flail.”
This point brings us to consider the matter-of-fact conditions of the villeins during the feudal period, especially in the 12th, 13th and 14th centuries. As is shown by the Hundred Rolls, the Domesday of St Paul, the Surveys of St Peter, Glouc., Glastonbury Abbey, Ramsey Abbey and countless other records of the same kind, the customary conditions of villeinage did not tally by any means with the identification between villeinage and slavery suggested by the jurists. It is true that in nomenclature the word “servi” is not infrequently used (e.g. in the Hundred Rolls) where villani might have been mentioned, and the feminine nief (nativa) appears as the regular parallel of villanus, but in the descriptions of usages and services we find that the power of the lord loses its discretionary character and is in every respect moderated by custom. As personal dependents of the lord native villeins were liable to be sold, and we find actual sales recorded: Glastonbury Abbey e.g. sells a certain Philipp Hardyng for 20 shillings. But such transfers of human chattels occur seldom, and there is nothing during the English feudal period corresponding to the brisk trade in men characteristic of the ancient world. Merchet was regarded, as has been stated already, as a badge of serfdom in so far as it was said to imply a “buying of one’s own blood” (servus de sanguine suo emando). The explanation is even more characteristic than the custom itself, because fines on marriage may be levied and were actually levied from people of different condition, from the free as well as from the serf. Still the tendency to treat merchet as a distinctive feature of serfdom has to be noted, and we find that the custom spread for this very reason in consequence of the encroachments of powerful lords: in the Hundred Rolls it is applied indiscriminately to the whole rustic population of certain hundreds in a way which can hardly be explained unless by artificial extension. Heriot, the surrender of the best horse or ox, is also considered as the common incident of villein tenure, although, of course, its very name proves its intimate connexion with the outfit of soldiers (here-geatu).
Economically the institution of villeinage was bound up
