第63章

There has been some debate on the question whether the lord could sell his villains. It has been urged that we have no traces of such transactions during the feudal period, and that therefore personal serfdom did not exist even in law.(46*) It can be pointed out, on the other side, that deeds of sale conveying villains apart from their tenements, although rare, actually exist. The usual form of enfranchisement was a deed of sale, and it cannot be argued that this treatment of manumission is a mere relic of former times, because both the Frank and the Saxon manumissions of the preceding period assume a different shape;they are not effected by sale. The existing evidence entitles one to maintain that a villain could be lawfully sold, with all his family, his sequela, but that in practice such transactions were uncommon.(47*) The fact is a most important one in itself. The whole aspect of society and of its work would have been different if the workman had been a saleable commodity passing easily from hand to hand. Nothing of the kind is to be noticed in the medieval system. There is no slave market, and no slave trade, nothing to be compared with what took place in the slave states of North America, or even to the restricted traffic in Russia before the emancipation. The reason is a curious one, and forcibly suggested by a comparison between the cases when such trade comes into being, and those when it does not. The essential condition for commercial transfer is a protected market, and such a market existed more or less in every case when men could be bought and sold. An organised state of some kind, however slightly built, is necessary as a shelter for such transfer. The feudal system proved more deficient in this respect than very raw forms of early society, which make up for deficiencies in State protection by the facilities of acquiring slaves and punishing them. The landowner had enough political independence to prevent the State from exercising an efficient control over the dependent population, and for this very reason he had to rely on his own force and influence to keep those dependents under his sway.

Personal dependence was locally limited, and not politically general, if one may use the expression. It was easy for the villain to step out of the precincts of bondage; it was all but impossible for the lord to treat his man as a transferable chattel. The whole relation got to be regulated more by internal conditions than by external pressure, by a customary modus vivendi, and not by commercial and state-protected competition.

This explains why in some cases political progress meant a temporary change for the worse, as in some parts of Germany and in Russia: the State brought its extended influence to bear in favour of dependence, and rendered commercial transactions possible by its protection. In most cases, however, the influence of moral, economical, and political conceptions made itself felt in the direction of freedom, and we have seen already that in England legal doctrine created a powerful check on the development of servitude by protecting the actual possession of liberty, and throwing the burden of proof in questions of status on the side contending against such liberty.

But not all the consequences of personal servitude could be removed in the same way by the conditions of actual life. Of all manorial exactions the most odious was incontestably the merchetum, a fine paid by the villain for marrying his daughter.(48*) It was considered as a note of servile descent, and the man free by blood was supposed to be always exempted from it, however debased his position in every other respect. Our authorities often allude to this payment by the energetic expression 'buying one's blood' (servus de sanguine suo emendo).

It seems at first sight that one may safely take hold of this distinction in order to trace the difference between the two component parts of the villain class. In the status of the socman, developed from the law of Saxon free-men, there was usually nothing of the kind. The maritagium of military tenure of course has nothing in common with it, being paid only by the heiress of a fee, and resulting from the control of the military lord over the land of his retainer. The merchetum must be paid for every one of the daughters, and even the granddaughters of a villain; it bad nothing to do with succession, and sprang from personal subjection.