Though Christian serfs were too scattered to be a self-conscious
‘commonalty’, as the Jews were,^165 their working of the land was so
basic to the feudal economy that definition of their status in relation to
their landlords bulked large in custom and could not in the end be
ignored by legislators. Serfs (bondmen, villeins) were nativi, ‘born’ into
their servile status, but legal complications arose from marriages and
occupational mobility across the divide between free and unfree
peasants. Beaumanoir explained in the 1280s that where one parent was
free and the other bond, children followed the mother’s status. The
status of a knight or gentleman was inherited from his father: but a
knight could no more make free his children by a serf than a gentle
mother could confer gentility on her children by a servile husband. A
peasant could claim freedom on the grounds that his mother had lived
‘en estat de franchise’, or else that his lord had enfranchised him, or that
he had been ‘en estat de clergie’ for at least ten years or been made free
by residence in a town for a year and a day.^166
Fifty years before Beaumanoir, Bracton set the villein’s status under
English law firmly within the realities of the land-holding system. The
villein was not like a domestic slave. He was a serf because he was part
of his landlord’s agricultural equipment, and he needed a tenement him-
self to live from while he worked the lord’s demesne. In fact some lords
rented out all their demesne to their peasants, and the more enterprising
farmers amongst the villeins took up tenements outside their lord’s
potestates—thus becoming, in Bracton’s terms, statuliberi, free to the
rest of the world.^167 A villein was denied an action for disseisin only
against his manorial lord, because he had an absolute right to take back
land that was his; a peasant’s failure in a suit against his lord would be
taken as proof of his bondage. On the other hand, the landlord had to
go to the king’s court to prove the bondage of an absconding villein and
recover him.^168 Villeins had public rights. According to Magna Carta
courts were to fine people according to their offences, and not so heavily
that a freeman had to give up his tenement, a merchant the stock which
provided his livelihood, or the villein his cart. Villeins might serve on
juries when freemen were lacking.^169
The servitude which villeins sought to escape was an economic servi-
tude, which was degrading enough in its requirement of open-ended
224 Legal Ordering of ‘the State of the Realm’
King’s Bench, i, pp. cxx (n. 2), clvi–clvii, clxi; ii., 30–4; iii, cxiii–cxiv; J. R. Strayer, The Reign
of Philip the Fair(Princeton UP, 1980), 83, 148, 150, 162–3, 287.
(^165) Select Cases in the Court of King’s Bench, iii, p. cxiv.
(^166) Beaumanoir, Coutumes de Beauvaisis, ii. 222–34; Les Olim, iii. 180 (lxiii), 793
(lxxviii).
(^167) Bracton on the Laws and Customs of England, tr. Thorne, ii. 30–8, iii. 99–113.
(^168) Harding, England in the Thirteenth Century, 74–6.
(^169) Holt, Magna Carta, 457 (c. 20).