208
THE SAXONS IN ENGLAND.
[book I.
genitus fuerit partus a libero, licet a nativa, partus
erit liber ; et si de servo et libera in matrimonio,
servus erit.” Thus, here again the offspring fol-
lows the father, as soon as there is a marriage to
determine that there is an offspring at all, in law ;
but if there be no marriage, the chattel thrown into
the world, like any other waif or stray belongs
domino loci ; it has a value, can be worked or sold ;
it is treasure-trove of a sort, and as it belongs to
nobody else, falls to the lord, as a compensation
probably for the loss of his neif’s services during
pregnancy and the nonage of the child ɪ.
Whatever the origin of serfage may have been,
it can hardly be questioned that the lot of the serf
was a hard one ; and this perhaps not so much
from the amount of labour required of him, as
from the total irresponsibility of the master, in the
eye of the law, as to all dealings between himself
and his J>eow. The Christian clergy indeed did all
they could to mitigate its hardships, but when has
even Christianity itself been triumphant over the
selfishness and the passions of the mass of men 1
The early pagan Germans, though in general they
treated their serfs well, yet sometimes slew them,
under the influence of unbridled passion : “ Verbe-
rare servum ac vinculis et opere coercere rarum.
Occidere soient, non disciplina et severitate, sed
ɪ Mr. Alien in his valuable notes upon the law of Henry the First
(published by Thorpe in his Anglosaxon Laws, i. 609-631) has some
remarks upon the whole subject, as considered by our Normanjurists.
His conclusions coincide generally with mine, and he says (p. 628),
“ The Mirror [Sachsenspiegelj makes the marriage of the parents an
essential condition,to the liberty of the offspring,” etc.
CH. VIII. j
THE UNFREE. THE SERF.
209
impetu et ira, ut inimicum, nisi quod impune est1.”
The church affixed a special penance to the man-
slaughter of a woman by her mistress, impetu et
ira,—an event which probably was not unusual,
considering the power of a lord over his peðwen
or female slave,—and generally, a penance for the
slaughter of a serf by his lord without judicial au-
thority2.
In contemplation of law, in fact, the slave is the
absolute property of his lord, a chattel to be dis-
posed of at the lord’s pleasure, and having a value
only for the benefit of the lord, or of some public
authority in his place. The serf cannot represent
himself or others : his interests must be guarded by
others, for he himself has no standing in any public
court. He is not in any fri,δborh, or association
for mutual guarantee, for he has nothing of his
own to defend, and no power to defend what another
has. If he be slain by a stranger, his lord claims
the damages, and not his children : if the lord him-
self slay him, it is but the loss of so much value,
—a horse, an ox, gone—more or less. Out of his
‘ Tac. Germ. xxv.
2 “ Si faemina, furore zeli accensa, Aagellis verberaverit ancillam
suam, ita ut infra diem tertium ιvnimam cruciatu effundat, et quod in-
certum sit, Voluntate an casu occident ; si voluntate, vii annos ; si casu,
per quinquennii tempora, ac légitima poenitentia, a Communione pla-
cuit abstinere.” Poen. Theod. xxi. § 13. “ Si quis servum proprium,
sine Conscientia iudicis, occident, excommuuicatione vel poenitentia
biennii reatum sanguinis emundabit.” Ibid. § 12. Even as late as the
seventeenth century in France, it appears that it was usual to Aog the
valets, pages and maids, in noble houses. Tallemant des Reaux men-
tions a riot which arose in Paris from a woman’s being whipped to
death by her mistress, in August 1651. See his Historiettes, viii. 80 ;
x. 2δδ, etc.
VOL. I. P