The Domesday Survey puts before us the state of things in England as it was at the very beginning of the Norman and at the close of the Saxon period. The development of feudal society, of centralizing kingship and ultimately of a system of common law, brought about great changes which all hinge on the f unda mental fact that the kings, while increasing the power of the State in other respects, surrendered it completely as regards the relations between the peasants and their lords. The protection of the assizes was tendered in civil matters to free tenants and refused to villeins. The royal courts refused to entertain suits of villeins against their lords, although there was a good deal of vacillation before this position was definitely taken up. Bracton speaks in his treatise of the possibility of interference by the courts against intolerable cruelty on the part of the lord in volving the destruction of the villein's waynage, that is, of his tillage, and in the Notebook of Bracton may be found a couple of cases which prove that 13th century judges occasionally allowed themselves to entertain actions by persons holding in villeinage against their lords. Gradually, however, the exception of villeinage became firmly settled. As the historical and practical position was developing on these lines the lawyers who fashioned English common law in the 12th and 13th centuries did not hesitate to apply to it the teaching of Roman law on slavery. Bracton fits his definition of villeinage into the Romanesque scheme of Azo's Summa of the Institutes, and the judges of the royal courts made sweeping inferences from this general position. To begin with, the relation between the villein and his lord was regarded as a personal and not a praedial one. Everyone born of villein stock belonged to his master and was bound to undertake any service which might be imposed on him by the master's or the steward's command. The distinction between villeins in gross and villeins regardant, of which much is made by modern writers, was sug gested by modes of pleading and does not make its appearance in the Year-Books before the 15th century. Secondly, all in dependent proprietary rights were denied to the villein as against his lord, and the legal rule "quicquid servo acquiritur domino acquiritur" was extended to villeins. The fact that a great number of these serfs had been enjoying protection as free ceorls in former ages made itself felt, however, in three directions. (I) In criminal matters the villein was treated by the King's Court irrespectively of any consideration as to his debased condition. More especially the police association, organized for the keeping of the peace and the presentation of criminals—the frankpledge groups—were formed of all "worthy of were and wite," villeins as well as freemen. (2) Politically the villeins were not eliminated from the body of citizens ; they had to pay taxes, to serve in great emergencies in the militia, to serve on inquests, etc., and although there was a tendency to place them on a lower footing in all these respects yet the fact of their being lesser members of the common wealth did not remove the fundamental 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. 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 men tioned 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 cus tomary 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 have 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. Of course, persons born from villein parents in lawful wedlock were villeins, but as to the con dition 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 was determined by the free or villein condition of the tenement in which it was born. This notion of the influence of the tenement is in accord with feudal ideas 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 are past, the fugitive is maintained provisionally in posses sion 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 so far 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.