villenage, privileged or not, might always perform the services by deputy if he could find one.

Thus in Bracton it is quite clear that the conditions of the tenure and the personal status of the tenant have no necessary connection. Not only a free man may hold servile land, but a serf may hold and deal with free land as against everybody but his own lord (fo. 26b). And in Littleton, and Coke's commentary on his text, the distinction is equally clear, (compare Co. Litt. 576, 58a, with Litt., s. 172, and Co. Litt., 116, 117). There is already a source of confusion, however, in the double meaning of villanus. At the time of Domesday the serf by blood was called servus (later nativus), never villanus. But gradually, by a kind of euphemism, the word servus was dropped, and villanus came to mean sometimes, as aforetime, a man holding by a certain kind of service, but often a man personally unfree. In Glanvill we see the terminology in a state of transition. He always calls the serf nativus, but his condition (not merely the tenure, but his personal state) is called villenagium; a reclaimed serf is said to be in villenagio positus or in villenagium clamatus. Bracton freely uses villanus as synonymous with nativus. By Littleton's time the word villein seems as a rule to have imported personal servitude, though a careful man might speak of a “villein in blood" if he meant to secure himself against mistake. The distinction in substance, as above said, is still perfectly clear. Coke, I think, misinterprets Littleton in one place, s. 209. Littleton says that the lord of a manor cannot prescribe for a fine payable by every tenant within the manor who marries a daughter without the lord's licence : "for none ought to make such fine but only villeins." Coke's gloss on this is as follows: "that is, either villeins of blood, or freemen holding in villenage or base tenure." Comparing Bracton's more explicit statement, I think Littleton must have meant to exclude, not to include,

freemen holding in villenage. But if Coke is wrong, it is only on a detail. When we come to Blackstone (Comm. 2, 92-96) the confusion is complete. He writes as if wholly unaware that villanus ever meant anything but a personal serf: the liber homo tenens in villenagio somehow escapes his notice altogether, and the early copyholder is represented by him as an enfranchised serf and nothing else. Blackstone's confused and misleading account has been adopted, so far as I know, by all modern text-writers before Mr. Kenelm Digby, who, going back to Littleton and Bracton, restored the distinction which Blackstone had obscured. He would have done still better, I venture to think, if he had more pointedly called attention to it.* The blundering of Blackstone's Commentaries on this point is the more remarkable, inasmuch as his Considerations on Copyholds show that he at one time read and to some extent appreciated the earlier authorities. Putting the tract and the Commentaries together, his theory, so far as he had one, appears to have been that personally free men holding in villenage existed, but were a very small class, and were ultimately represented by the customary tenants not said to hold at the will of the lord; that the ordinary copyholder always represented a nativus; and that the tenure of the nativus was not only burdensome but wholly precarious until long after the Conquest. This would be as pretty a theory as another if it were not flatly contradicted by the facts, as it is the moment we go at all below the surface.

As to the personal condition of the serfs, modern scholars seem pretty well agreed that legally it might have been one of great hardship, but in practice they were for the most part not so very badly off. The least favourable view of their position I have met with is Nasse's, the most

* Mr. Taswell-Langmead has done this in his Constitutional History, Pp. 291-300, Second Edition.

favourable, Mr. Larking's (Domesday of Kent, note 57) and Mr. Thorold Rogers' (History of Prices, vol. 1). These last writers appear, however, as much concerned, or more, to make out the state of the modern labourer worse, as to make out the state of the old nativus better, for Mr. Thorold Rogers certainly underrates the positive evidence that personal servitude, as distinct from attachment to the soil, was known long after the Conquest. For example it was elaborately discussed in 1302 whether a neif marrying a free man became free absolutely or only during the coverture (Y. B. 30 & 31 Ed. 1, p. 164). Again, in 1305, it is pointedly stated by the Court, the question being whether free or villein service is due from certain land, that a plea of the tenant's personal freedom is irrelevant as regards the land (Y. B. 33 Ed. 1, p. 10). Probably it was not common for serfs to be sold apart from the land, but there is no doubt that it was sometimes done (Madox, Form. Anglic. nos. 756-762). In the absence of evidence it would be a plausible theory that the ignorance or carelessness of Norman surveyors and judges confused the lowest classes of free men with the serfs, in which process the dependent free man lost something, but the serf who formerly had no rights at all ultimately gained much. Such a view is taken by Professor Stubbs (Const. Hist. I., 429) and also by Mr. Freeman. But the evidence shows a displacement and shifting rather than a confusion of the names, and possibly

some extent the actual state, of different classes, a Standesverschiebung as one might say in German. In the Exchequer Domesday we find on the manors of St. Paul's four distinct kinds of tenants, Villani, Bordarii, Cotarii, Servi. In the Domesday of St. Paul's, A.D. 1222, or in round numbers a century and a quarter later, we find Tenentes of several descriptions (libere tenentes, ten. per vilenagium, ten. terras operarias, ten. de terra assisa, and others), Cotarii, and Nativi. Archdeacon Hale's inference

is best given in his own words. "The ancient names, that of the Cotarii excepted, had, as it appears, fallen into desuetude; the relations, however, in which the services and persons of the Libere tenentes, the Tenentes terras operarias, and the Nativi, stood with respect to each other, and to the lord of the manor, are so distinctly marked as to leave but little doubt that in those three classes we have the representatives of the Villani, Bordarii, and Servi of the earlier age, under titles of a higher order, and which less plainly indicated the servile character of the services which were due" (Introd. to Domesday of St. Paul's, p. xxvi). It seems hardly rash to suppose that in the relatively favourable case of tenancy under an ecclesiastical corporation there had been some real improvement in the condition of every class of tenants. Anyhow there is the fact that in the thirteenth century the minuter distinctions which the Conquest might be supposed to efface were as far from having disappeared as ever, and went on under changed or shifted names. It by no means follows, of course, that all these terms imply differences of personal status. It is at least doubtful whether bordarius and cotarius signify anything but the general nature and size of the holding. But the leading types are well enough marked. In the eleventh century there was the free man in the fullest sense compatible with having a lord at all, who might "go where he would with his land." Then there was the dependent free man who might seek a new lord if he chose, but at the cost of leaving the land: potuit ire quo volebat, sed non cum terra." Such are the coliberti of Domesday in Dorset, elsewhere called "sokemen" (Eyton, p. 46).* Then we have the still more dependent

*Mr. Eyton treats the villani, in Dorset at any rate, as an unfree class; but I fail to see why. Doubtless they were inferior to the censores, who already paid a fixed money rent for all service; but payment of labour-rents is quite compatible with personal freedom, otherwise no free man could ever have held in villenage.

holder (ascriptitius in the language of the 12th-13th century authorities, such as Dial. Scacc. II., 14), who cannot quit the land without the lord's consent. Last of all comes the thrall or servus. In the thirteenth century, I apprehend, these distinctions were by no means out of use, except that the power of seeking a new lord "cum terra sua" had disappeared as being repugnant to feudal principles, and was replaced by the more convenient power of alienating the land to a purchaser. The liber homo, ascriptitius, and servus, were still separate and defined conditions of men. The "ascriptitii qui villani dicuntur" of Dial. Scacc. I., X., seem to be not serfs but degraded free men. Again, we know that villenage by blood, as distinct from villein or customary tenure, existed and was recognised not only in books but in practice down to the seventeenth century. "Queen Elizabeth in 1574 issued a commission for the enfranchisement of most of the bond-servants in the manors belonging to the Crown. And there is a case reported as late as the 15th year of James I. in which an issue as to villenage was tried" (Elton, "Custom and Tenant-right," p. 29). In the face of this it is impossible to hold that the sections of Littleton on villenage, for example, are the mere survival of legal pedantry describing obsolete institutions as if they were still alive.

It

Thus much of the persons. Now for the tenure. should really be needless at this day to contradict Blackstone's story that all our customary tenures were invented after the Conquest by the more or less capricious indulgence of the lords of manors. Only Blackstone's story was adopted in unquestioning faith by Mr. Joshua Williams (in days long before he learnt of the historians and wrote his excellent book on "Rights of Common "), and so continues, it must be presumed, to be taken for gospel by the majority of law students. Therefore it may be worth while to recapitulate the facts.