1

of the court leet, with criminal jurisdiction. "Whenever the lord has a doubt concerning the heir of the tenants, whether or not he be the rightful heir, he may hold the land until the matter be established according to law." But even the villain had some privileges, which lessened the lord's right in the estate to some degree. Thus on fixed days he drank scotale with the lord-at his own expense. He received some annual favors from the lord. Thus the swineherd of Glastonbury Abbey received one suckling pig a year, the interior parts of the best pig, and the tails of all the other pigs slaughtered in the abbey. But there were substantial rights. Thus the lord could not remove the tenant as long as he rendered the service due. The serf who would have been in former times a slave, now might get "seisin of liberty," when the lord could not recover him without a writ; he might defend himself in a king's court. He might serve as presentor or juror in courts. The same person was treated by the law now as a free person, now as a slave or chattel. The laws of William the Conquerer provided: "Those who cultivate the land ought not to be harassed beyond their proper fixed amount; nor is it lawful for the lords to remove the cultivators from the land so long as they are able to render the due service." The lord could not alienate in perpetuity any part of the inheritance of his tenant. The lord was bound to warrant his man, who did him homage, against

1 Digby, op. cit., p. 91.

2 Vinogradoff, Villeinage in England, p. 164.

3 Cheyney, "Recent Tendencies in Land Tenure," in Annals Amer. Acad., Sept., 1891.

4 Pollock and Maitland, op. cit., i, p. 215.

5 Ibid., i, p. 401.

7 Digby, op. cit., p. 88.

6 Ibid., i, p. 404.

all men "that can live or die." The lord was liable for his men's good conduct.1 Aids were fixed at 2s. for each 20s. of rental value; and reliefs at 100s. by Henry I. and by Magna Charta at £100 for a barony and 100s. for a knight's fee.

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Thus ownership was an equilibrium.

2

The position of

the villein was one of precarious, but real ownership. 'The grinding and hopeless poverty just above the verge of actual starvation so often prevalent in the present time did not belong to medieval life." The stronger lords were indeed more powerful than they might have been with private property. But the attachment of political power directly to ownership weakens the tenure of ownership. Although feudal incidents were made a system of extortion, by William Rufus (1087-1100), although under Stephen the feudal nobles became tyrants in their fortified castles, their very power was their weakness. They did not have the modern state-supported property.

As ownership was feudalized, corporations were modified in form. The free Roman corporations had become distrusted on account of their political character, then utilized as state instrumentalities to supply the public needs, and were strictly limited in their powers. Members of corporations which were necessary for public interests were compelled to remain in them; their property was subject to implied hypothecation for its debts. Their children were compelled to succeed them. Private business was a public trust. Certain corporations, originally private, were compelled to supply grain and bake bread as a public duty. The individual was merged and the "college" was re

1 Holmes, op. cit., pp. 19-28.

2 Gibbins, Industry in England, p. 177.

3 Baldwin, Modern Political Institutions, p. 157.

3

sponsible for his debts and his crimes. The corporations of Rome, both private and public, disappeared perhaps in feudalism; perhaps in some cases existed continuously throughout that period, becoming gilds.

The manors, the churches and the towns of feudalism were a network of associative ownership. The manor was itself a quasi-corporation, since all its members shared in the land; all the tenants of the land were regarded as one, as a fictitious personality, by the lord when he amerced it for damage or for waste.1 The community was liable for the collection of duties. Estates were sometimes let to real communities. But the manors did not constitute corporations in the modern sense, since the liability was one jointly and severally. When ownership was universally associative; when a religious association offered to its members greater security than that under individual masters, and was able to acquire material goods by spiritual labors, it is not surprising that the religious houses engrossed a large proportion of the land in time. But membership in these corporations of "God and the saints" gave neither rights of possession nor of disposition, only of use, and the number of the saints was kept limited to the capacity of the land and the peasantry for supporting ease. In the eleventh century incorporation was extended to religious fraternities outside of the church, such as the Poor Soldiers of the Temple of Solomon, later the Knights Templars. The towns, like the manors, were responsible for a lump toll to the king in return for their charters, by which they had privileged tenures. This body of privileges and properties grew in the thirteenth and the four

3

1 Vinogradoff, Villeinage in England, p. 356.

2 Pollock and Maitland, op. cit., vol. i, p. 615.

3 Baldwin, op. cit., p. 160.

teenth centuries into the conception of a corporation like that of the churches. But individual initiative was limited in these corporations. Thus the markets of the towns were sometimes granted to the burgesses or to a neighboring knight or abbey, to whom the buyers and sellers must pay toll for booths, for weighing and the like. The non-payment of a merchant of one town by a merchant of another town made any fellow townsman of the latter liable to seizure. This inter-municipal reprisal caused closer organization into the merchant gilds, a privileged class within the borough and finally ruling it. The earlier voluntary gilds, descended from the frithborh, or neighborhood association for protection, once independent of the government of the town slowly absorbed the town government. Association through similarity of occupations produced within the towns craft gilds, with power to govern their trades, such as the goldsmiths (1327), the mercers (1373), the haberdashers (1401). But membership in the gilds under which trade in the towns must be exercised was little like modern corporate ownership. There was no freedom of possession of gild privileges, for admission was jealously guarded; their object was monopoly. Nor was there freedom of use, " for every one who is of the gild merchant may share in all the merchandise which another gildman shall buy." Each member traded independently under the rules. Religious, municipal and social duties were charged upon them. And the medieval lawyer distinguished between these aggregates, which were like corporations, and the persona ficta, or created corporation.1 Freedom of ownership was not practicable in times of civil commotion, when there was no national guarantee of security. Political unification precedes economic and individual lib

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1 Pollock and Maitland, op. cit., vol. i, p. 474.

erty. Speaking after Spencer, the "integration" of feudalism precedes the "disintegration" of modern private property. Unity is the transition between two periods of liberty. Before a form of private property can be developed, there must be a central power to guarantee its security. The guarantee of the central government towards any class under its jurisdiction tends to uniformity. Uniformity of social forms is essential to social sanction. The lord of one estate, who holds dependents under one set of conditions, is outraged at the oppression of servants held under another set of conditions. The social integration into feudal units was the first stage of the integration of the political unity which accompanied and conditioned the slow growth of modern private property.

Liberty to own men as things never became so marked in England as in Rome. Although feudalism as an institution for the subjection of men made outright slavery in England unnecessary, slavery existed wherever it was desirable property. The traces of an early slavery seem again to indicate the prevalence of some approach to private property in England before feudalism. When St. Patrick set about christianizing the Brehon law in 430 A. D., Fergus, son of Leide, king of Uladh, was receiving twenty

one

"cumhals," female slaves, as compensation for the killing of Echaidh Belbundhe, a criminal under his protection.1 The Welsh penalty for cutting off a thumb was "half a bond maid." To draw blood from an abbot cost seven pounds and a female of the criminal's family to be a washerwoman." In England John bought Gunilda from Goda for half a pound of silver and gave her to the church of St. Peter. Wilfric bought Elfgitha for half a pound. Egilsig bought Cynric for an eyre of gold. The mother of

2

1 Brownlow, op. cit., p. 120.

2 Ibid., p. 131.