CHAPTER I.

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Villainage in England

VINOGRADOFF

Villainage in England

ESSAYS IN

ENGLISH MEDIAEVAL HISTORY

BY

SIR PAUL VINOGRADOFF

OXFORD

AT THE CLARENDON PRESS

_Oxford University Press, Ely House, London W. 1_

GLASGOW NEW YORK TORONTO MELBOURNE WELLINGTON

CAPE TOWN SALISBURY IBADAN NAIROBI LUSAKA ADDIS ABABA

BOMBAY CALCUTTA MADRAS KARACHI LAHORE DACCA

KUALA LUMPUR HONG KONG TOKYO

FIRST PUBLISHED 1892

REPRINTED LITHOGRAPHICALLY IN GREAT BRITAIN

AT THE UNIVERSITY PRESS, OXFORD

BY VIVIAN RIDLER

PRINTER TO THE UNIVERSITY

1968

PREFACE

A foreigner's attempt to treat of difficult and much disputed points of

English history requires some justification. Why should a Russian

scholar turn to the arduous study of English mediaeval documents? Can he

say anything of sufficient general interest to warrant his exploration

of so distant a field?

The first question is easier to answer than the second.

There are many reasons why we in Russia are especially keen to study

what may be called social history--the economic development of nations,

their class divisions and forms of co-operation. We are still living in

surroundings created by the social revolution of the peasant

emancipation; many of our elder contemporaries remember both the period

of serfdom and the passage from it to modern life; some have taken part

in the working out and putting into practice of the emancipating acts.

Questions entirely surrendered to antiquarian research in the West of

Europe are still topics of contemporary interest with us.

It is not only the civil progress of the peasantry that we have to

notice, but the transformation and partial decay of the landed gentry,

the indirect influence of the economic convulsions on politics, ideas,

and morality, and, in a more special way, the influence of free

competition on soil and people that had been fettered for ages, the

passage from 'natural husbandry' to the money system, the substitution

of rents for labour, above all, the working of communal institutions

under the sway of the lord and in their modern free shape. Government

and society have to deal even now with problems that must be solved in

the light of history, if in any light at all, and not by instinct

groping in the dark. All such practical problems verge towards one main

question: how far legislation can and should act upon the social

development of the agrarian world. Are economic agencies to settle for

themselves who has to till land and who shall own it? Or can we learn

from Western history what is to be particularly avoided and what is to

be aimed at? I do not think that anybody is likely to maintain at the

present day, that, for instance, a study of the formation and

dissolution of the village community in the West would be meaningless

for politicians and thinkers who have to concern themselves with the

actual life of the village community in the East.

Another powerful incitement comes from the scientific direction lately

assumed by historical studies. They have been for a long time very

closely connected with fine literature: their aim was a lifelike

reproduction of the past; they required artistic power, and stirred up

feelings as well as reflective thought. Such literary history has a

natural bent towards national tradition, for the same reason that

literature is attracted by national life: the artist gains by being

personally in touch with his subject; it is more easy for him to cast

his material into the right mould. Ancient history hardly constitutes an

exception, because the elements of classical civilisation have been

appropriated by European nations so as to form part of their own past.

What I call literary history has by no means done all its work. There is

too much in the actions of men that demands artistic perception and even

divination on the part of the historian, to allow this mode of treatment

to fall into decay. But nobody will deny that historical study is

extending more and more in the direction of what is now called

anthropology and social science. Historians are in quest of laws of

development and of generalisations that shall unravel the complexity of

human culture, as physical and biological generalisations have put into

order our knowledge of the phenomena of nature.

There is no subject more promising from this point of view than the

history of social arrangements. It borders on political economy, which

has already attained a scientific standing; part of its material has

been fashioned by juridical doctrine and practical law, and thereby

moulded into a clear, well-defined shape; it deals with facts recurring

again and again with much uniformity, and presenting great facilities

for comparison; the objects of its observation are less complex than the

phenomena of human thought, morality, or even political organisation.

And from the point of view of the scientific investigator there can be

no other reason for taking up a particular epoch or nation, but the hope

of getting a good specimen for analysis, and of making use of such

analysis for purposes of generalisation.

Now I think that there can be no better opportunity for studying early

stages of agrarian development than that afforded by English mediaeval

history. The sources of information are comparatively abundant in

consequence of the powerful action of central authority; from far back

in the feudal time we get legal and fiscal documents to enlighten us,

not only about general arrangements but even about details in the

history of landed property and of the poorer classes. And the task of

studying the English line of development is rendered especially

interesting because it stands evidently in close connexion with the

variations of the same process on the continent. Scandinavian, German,

French, Italian, and Spanish history constantly present points of

comparison, and such differences as there are may be traced to their

origins just because so many facts are in common to start with. I think

that all these considerations open a glorious vista for the enquirer,

and the interest excited by such publications as those of Fustel de

Coulanges proves that the public is fully alive to the importance of

those studies in spite of their dry details.

What could I personally undertake to further the great objects of such

investigation? The ground has been surveyed by powerful minds, and many

controversies show that it is not an easy one to explore. Two main

courses seemed open in the present state of the study. A promising

method would have been to restrict oneself to a definite provincial

territory, to get intimately acquainted with all details of its

geography, local history, peculiarities of custom, and to trace the

social evolution of this tract of land as far back as possible, without

losing sight of general connexions and analogies. How instructive such

work may become may be gathered from Lamprecht's monumental monograph on

the Moselland, which has been rightly called by its author 'Deutsches

Wirthschaftsleben im Mittelalter.' Or else, one might try to gather the

general features of the English mediaeval system as embodied in the

numerous, one might almost say innumerable, records of the feudal

period, and to work back from them into the imperfectly described

pre-feudal age. Such enquiry would necessarily leave out local

peculiarities, or treat them only as variations of general types. From

the methodical point of view it has the same right to existence as any

other study of 'universalities' which are always exemplified by

individual beings, although the latter are not made up by them, but

appear complicated in every single case by additional elements.

Being a foreigner, I was driven to take the second course. I could not

trust myself to become sufficiently familiar with local life, even if I

had the time and opportunity to study it closely. I hope such

investigations may be taken up by scholars in every part of England and

may prosper in their hands; the gain to general history would be simply

invaluable. And I was not sorry of the necessity of going by the second

track, because I could hope to achieve something useful even if I went

wrong on many points. Every year brings publications of Cartularies,

Surveys, Court-rolls; the importance of these legal and economic records

has been duly realised, and historians take them more and more into

account by the side of annals and statutes. But surely some attempt

ought to be made to concentrate the results of scattered investigation

in this field. The Cartularies of Ramsey, Battle, Bury St. Edmunds, St.

Paul's, the Hundred Rolls, the Manorial Records of Broughton and King's

Ripton, give us material of one and the same kind, which, for all its

wealth and variety, presents great facilities for classification and

comparison[1]. I have seen a good many of these documents, both

published and in manuscript, and I hope that my book may be of some

service in the way of concentrating this particular study of manorial

records. I am conscious how deficient my work is in many respects; but

if by the help of corrections, alterations, additions, it may be made to

serve to some extent for the purpose, I shall be glad to have written

it. I may say also that it is intended to open the way, by a careful

study of the feudal age, for another work on the origins of English

peasant life in the Norman and pre-Norman periods.

One pleasant result the toil expended on mediaeval documents has brought

me already. I have come into contact with English scholars, and I can

say that I have received encouragement, advice, and support in every

case when I had to apply for them, and in so large and liberal a measure

as I could hardly hope for or expect. Of two men, now dead, I have to

repeat what many have said before me. Henry Bradshaw was the first to

lay an English MS. cartulary before me in the Cambridge University

Library; and in all my travels through European libraries and archives I

never again met such a guide, so ready to help from his inexhaustible

store of palaeographical, linguistic and historical learning. Walford

Selby was an invaluable friend to me at the Record Office--always

willing and able to find exactly what was wanted for my researches.

It would be impossible to mention all those from whom I have received

help in one way or another, but I should like to speak at least of a

few. I have the pleasant duty of thanking the Marquis of Bath for the

loan of the Longleat MS. of Bracton, which was sent for my use to the

Bodleian Library. Lord Leigh was kind enough to allow of my coming to

Stoneleigh Abbey to work at a beautiful cartulary in his possession, and

the Hon. Miss Cordelia Leigh took the pains of making for me some

additional extracts from that document. Sir Frederick Pollock and Mr.

York Powell have gone through the work of reading my proofs, and I owe

to them many suggestions for alterations and improvements. I have

disputed some of Mr. Seebohm's opinions on mediaeval history; but I

admit freely that nobody has exercised a stronger influence on the

formation of my own views, and I feel proud that personal friendship has

given me many opportunities of admiring the originality and width of

conception of one who has done great things for the advancement of

social history. As for F.W. Maitland, I can only say that my book would

hardly have appeared at all if he had not taken infinite trouble to

further its publication. He has not only done everything in his power to

make it presentable to English readers in style and wording, but as to

the subject-matter, many a friendly suggestion, many a criticism I have

had from him, and if I have not always profited by them, the blame is to

be cast entirely on my own obstinacy.

PAUL VINOGRADOFF.

CONTENTS

PAGE

INTRODUCTION 1

FIRST ESSAY.

_The Peasantry of the Feudal Age._

CHAPTER I.

THE LEGAL ASPECT OF VILLAINAGE. GENERAL CONCEPTIONS 43

CHAPTER II.

RIGHTS AND DISABILITIES OF THE VILLAIN 59

CHAPTER III.

ANCIENT DEMESNE 89

CHAPTER IV.

LEGAL ASPECT OF VILLAINAGE. CONCLUSIONS 127

CHAPTER V.

THE SERVILE PEASANTRY OF MANORIAL RECORDS 138

CHAPTER VI.

FREE PEASANTRY 178

CHAPTER VII.

THE PEASANTRY OF THE FEUDAL AGE. CONCLUSIONS 211

SECOND ESSAY.

_The Manor and the Village Community._

CHAPTER I.

THE OPEN FIELD SYSTEM AND THE HOLDINGS 223

CHAPTER II.

RIGHTS OF COMMON 259

CHAPTER III.

RURAL WORK AND RENTS 278

CHAPTER IV.

THE LORD, HIS SERVANTS AND FREE TENANTS 313

CHAPTER V.

THE MANORIAL COURTS 354

CHAPTER VI.

THE MANOR AND THE VILLAGE COMMUNITY. CONCLUSIONS 397

APPENDIX 411

INDEX 461

FOOTNOTES

INTRODUCTION.

When the time comes for writing a history of the nineteenth century, one

of the most important and attractive chapters will certainly be devoted

to the development of historical literature. The last years of a great

age are fast running out: great has been the strife and the work in the

realm of thought as well as in the material arrangement of life. The

generations of the nineteenth century have witnessed a mighty revival of

religious feeling; they have attempted to set up philosophical systems

as broad and as profound as any of the speculations of former times;

they have raised the structure of theoretical and applied science to a

height which could hardly have been foreshadowed some two hundred years

ago. And still it is to historical study that we have to look as the

most characteristic feature of the period. Medieval asceticism in its

desperate struggle against the flesh, and Puritanism with its sense of

individual reconciliation with God, were both more vigorous forms of

religious life than the modern restorations of faith and Church, so

curiously mixed up with helplessness, surrender of acquired truth,

hereditary instincts, and utilitarian reflection. In philosophy, Hegel's

metaphysical dialectic, Schopenhauer's transformation of Kant's

teaching, and the attempts of English and French positivism at

encyclopaedical science may be compared theoretically with Plato's

poetical idealism or with the rationalistic schools of the seventeenth

and eighteenth centuries. But it would be difficult to deny, that in

point of influence on men's minds, those older systems held a more

commanding position than these: Hegel seems too arbitrary and

phantastical, Schopenhauer too pessimistic, positivism too incomplete

and barren as to ultimate problems to suit the practical requirements of

philosophy; and people are already complaining of the decay of

philosophical study. In science, again, the age of Darwin is certainly

second to none, but it has to share its glory with the age of Newton,

and it may be reasonably doubted whether the astronomer, following in

the footsteps of Galileo and Kepler, was not actuated by even greater

thirst and pride of knowledge than the modern biologist or geologist. It

is otherwise with regard to history.

[Progress of historical methods.]

Students of science are wont to inveigh against the inexact character of

historical research, its incoherence and supposed inability to formulate

laws. It would be out of place here to discuss the comparative value of

methods and the one-sided preference given by such accusers to

quantitative analysis; but I think that if these accusers were better

acquainted with the subject of their attacks, or even more attentive to

the expressions of men's life and thought around them, they would hardly

dare to maintain that a study which in the short space of a century has

led to a complete revolution in the treatment of all questions

concerning man and society, has been operating only by vague assumptions

and guesses at random. An investigation into methods cannot be

undertaken in these introductory pages, but a general survey of results

may be attempted. If we merely take a single volume, Tocqueville's

Ancien Regime, and ask ourselves whether anything at all like it could

have been produced even in the eighteenth century, we shall have a sense

of what has been going on in the line of historical study during the

nineteenth. Ever since Niebuhr's great stroke, historical criticism has

been patiently engaged in testing, sifting, and classifying the original

materials, and it has now rendered impossible that medley of discordant

authorities in which eighteenth-century learning found its confused

notions of Romans in French costume, or sought for modern constitutional

ideas as manifest in the policy of the Franks. Whole subjects and

aspects of social life which, if treated at all, used to be sketchily

treated in some appendix by the historian, or guessed at like a puzzle

by the antiquarian, have come to the fore and are recognised as the

really important parts of history. In a word, the study of the past

vacillates no longer between the two extremes of minute research leading

to no general results and general statements not based on any real

investigation into facts. The laws of development may still appear only

as dim outlines which must be more definitely traced by future

generations of workers, but there is certainly a constant progress of

generalisation on firmly established premises towards them.

[Growing influence of history on kindred subjects.]

What is more striking, the great change in the ways and results of

history has made itself felt on all the subjects which surround it.

Political economy and law are assuming an entirely new shape under the

influence of historical conceptions: the tendency towards building up

dogmatic doctrine on the foundation of abstract principle and by

deductive methods is giving way to an exact study of facts in their

historical surroundings, and to inquiries into the shifting conditions

under which the problems of social economy and law are solved by

different epochs. As a brilliant representative of legal learning has

ironically put it, it would be better for one nowadays to be convicted

of petty larceny than to be found deficient of 'historical-mindedness.'

The influence of historical speculation on politics is yet more definite

and direct: even the most devoted disciples of particular creeds, the

most ardent advocates of reform or reaction dare not simply take up the

high standing ground of abstract theory from which all political

questions were discussed less than a hundred years ago: the socialist as

well as the partisan of aristocracy is called on to make good his

contention by historical arguments.

It may be urged that the new turn thus taken is not altogether

beneficial for practical life. Men of fanatical conviction were more

likely to act and die for the eternal truth revealed to them, than

people reflecting on the relative character of human arrangements. But

can one get blissfully onesided by merely wishing to be so? And is it

not nobler to seek knowledge in the hope that it will right itself in

the end, than to reject it for the sake of being comfortable? However

this may be, the facts can hardly be denied: the aspiration of our age

is intensely historical; we are doing more for the relative, than for

the absolute, more for the study of evolution than for the elucidation

of principles which do not vary.

[Sketch of the literary development of social history as a necessary

introduction to its treatment.]

It will not be my object to give a sketch of the gradual rise of

historical study in the present century: such an undertaking must be

left to later students, who will command a broader view of the subject

and look at it with less passion and prejudice than we do now. But Lord

Acton's excellent article[2] has shown that the task is not quite

hopeless even now, and I must try, before starting on my arduous inquiry

into the social history of the middle ages in England, to point out what

I make of the work achieved in this direction, and what object I have in

view myself. Quite apart from any questions of detail which may come

under consideration as the treatment of the subject requires it, I have

to say in what perspective the chief schools of historians present

themselves to my view, in what relation they stand to each other, to

show how far they have pushed the inquiry, and what problems still

remain unsolved. Such a preliminary sketch must not be carried out with

a view to criticism and polemics, but rather as the general estimate of

a literary movement in its various phases.

[Late recognition of the value of social history.]

It is a remarkable fact, that the vast importance of the social side of

history has been recognised later than any other aspect of that study.

Stating things very broadly, one may say that it was pushed to the fore

about the middle of our century by the interests and forces at play in

actual life: before 1848 the political tendency predominates; after 1848

the tide turns in favour of the social tendency. I mean that in the

first half of the century men were chiefly engaged in reorganising the

State, in trying to strike a balance between the influence of government

and the liberties of the people. The second half of the century is

engrossed by the conflict between classes, by questions of economical

organisation, by reforms of civil order. Historical literature, growing

as it was in the atmosphere of actual life, had to start from its

interests, to put and solve its problems in accordance with them. But it

is no wonder that the preceding period had already touched upon a number

of questions that were fated to attract most attention in later

research. The rise of the Constitution, for instance, could not be

treated without some regard being paid to the relative position of

classes; it would have been out of the question to speak of political

feudalism without taking into account the social bearing of the system.

And so a sketch of the literary treatment of social questions must begin

with books which did not aim directly at a description of social

history.

[Characteristics of the work done in the seventeenth and eighteenth

centuries.]

I shall not detain the reader over the work achieved in the seventeenth

and eighteenth centuries. The learning of a Selden or of a Madox is

astounding, and a student of the present day has to consult them

constantly on particular questions; but they never had in mind to

embrace the history of their country as a whole. Facts are brought into

a system by Coke, but the system is strictly a legal one; undigested

historical knowledge is made to yield the necessary store of leading

cases, and, quite apart from the naive perversion of most particulars,

the entire view of the subject is thoroughly opposed to historical

requirements, for it makes the past an illustration of the present, and

regards it as planned on the same lines. There is no lack of books

setting forth historical proof for some favourite general thesis or

arranging facts according to some general idea, but such attempts were

distinguished by unbounded imagination and by endless sacrifices of fact

to the object of the writer's devotion. The curious literary byplay to

the struggle of political party which Aug. Thierry[3] has artistically

illustrated in France from the writings of Boulainvilliers and Dubos,

Mably and Lezardiere, could certainly be matched in England by a tale

of the historical argumentation of Brady[4], or Petyt[5], or Granville

Sharp. Nothing can be more eloquent in a sense than the title given by

this last author to his book on the system of frankpledge:--"An account

of the Constitutional English Polity of Congregational Courts, and more

particularly of the great annual court of the people, called the View of

Frankpledge, wherein the whole body of the Nation was arranged into the

regular divisions of Tythings, Hundreds, etc.:--the happy effect of that

excellent institution, in preventing robberies, riots, etc., whereby, in

law, it was justly deemed 'Summa et maxima securitas:'--that it would be

equally beneficial to all other nations and countries, as well under

monarchical as republican establishments; and that, to the English

Nation in particular, it would afford an effectual means of reforming

the corruption of Parliament by rendering the representation of the

people perfectly equal, in exact numerical proportion to the total

number of householders throughout the whole realm[6]."

Historical research, in the true sense of the word, was indeed making

its first appearance in the eighteenth century, and it was more fruitful

in England than in any other country, because England was so far ahead

of the Continent in its political condition: the influence of an

intelligent society in political affairs had for its counterpart a

greater insight into the conditions of political development. But the

great English historians of the eighteenth century were looking to

problems in other fields than that of social history. Robertson was

prompted by an interest in the origins of that peculiar community called

Western Europe, so distinctly dismembered in its component States and so

closely united by ideal and material ties; Gibbon could see the shadows

of the old world in which the new world was living; both had been

attracted to research by an admirable sense of influences deeper and

stronger than nationality, or State, or class, and both remained

indifferent to the humbler range of English social history. Hume took

his stand on England, but he had to begin with a general outline and the

explanation of the more apparent changes in State and Church.

[Blackstone's Commentaries.]

In this way current notions on our questions remained towards the close

of the eighteenth century still undisturbed by writers of a high order.

We may take as a fair sample of such current notions Sir William

Blackstone's historical digressions, especially those in the second

volume of his Commentaries[7]. There is no originality about them, and

the lack of this quality is rather an advantage in this case: it enables

us through one book to glance at an entire literature. I may be allowed

to recall its most striking points to the mind of my readers.

The key to the whole medieval system and to the constitution emerging

from it is to be found in feudalism. 'The constitution of feuds had its

original from the military policy of the northern or Celtic nations, the

Goths, the Huns, the Franks, the Vandals, and the Lombards, who poured

themselves into all the regions of Europe, at the declension of the

Roman Empire. It was brought by them from their own countries, and

continued in their respective colonies as the most likely means to

secure their new acquisitions, and to that end large districts or

parcels of land were allotted by the conquering general to the superior

officers of the army, and by them dealt out again in smaller parcels or

allotments to the inferior officers and most deserving soldiers.'

'Scarce had these northern conquerors established themselves in their

new dominions, when the wisdom of their constitutions, as well as their

personal valour, alarmed all the princes of Europe. Wherefore most, if

not all, of them thought it necessary to enter into the same or a

similar plan of policy. And thus, in the compass of a very few years,

the feudal constitution, or the doctrine of tenure, extended itself over

all the western world.'

'But this feudal polity, which was thus by degrees established over all

the Continent of Europe, seems not to have been received in this part of

our island, at least not universally and as a part of our national

constitution, till the reign of William the Norman. This introduction,

however, of the feudal tenures into England by King William does not

seem to have been effected immediately after the Conquest, nor by the

mere arbitrary will and power of the Conqueror, but to have been

gradually established by the Norman barons, and afterwards universally

consented to by the great Council of the nation.' 'The new polity

therefore seems not to have been _imposed_ by the Conqueror, but

nationally and freely adopted by the general assembly of the whole

realm.' 'By thus consenting to the introduction of feudal tenures, our

English ancestors probably meant no more than to put the kingdom in a

state of defence by establishing a military system. But whatever their

meaning was, the Norman interpreters ... gave a very different

construction to this proceeding, and thereupon took a handle to

introduce, not only the rigorous doctrine which prevailed in the duchy

of Normandy, but also such fruits and dependencies, such hardships and

services, as were never known to other nations.' 'And from hence arises

the inference, that the liberties of Englishmen are not (as some

arbitrary writers would represent them) mere infringements of the king's

prerogative, but a restoration of the ancient constitution, of which our

ancestors had been defrauded by the art and finesse of the Norman

lawyers, rather than deprived by the force of the Norman arms.'

The structure of the component parts is (for Blackstone) as ancient as

the constitution of the whole. The English manor is of Saxon origin in

all its essential characteristics, but the treatment of the people

within the manor underwent a very notable change in consequence of the

Norman invasion. In Saxon times the common people settled on folkland

were immersed in complete slavery. Their condition was improved by the

Conquest, because the Normans admitted them to the oath of fealty. And

the improvement did not stop there: although the peasantry held their

plots only by base tenure and at the lord's will, the lord allowed in

most cases a hereditary possession. In this way out of the lord's will

custom arose, and as custom is the soul or vital principle of common

law, the Courts undertook in the end to protect the base tenure of the

peasantry against the very lord whose will had created it. Such was the

rise of the copyhold estate of modern times.

Blackstone's work is a compilation, and it would be out of the question

to reduce its statements to anything like consistency. The rationalistic

mode of thought which has left such a peculiar stamp on the eighteenth

century, appears in all its glory in the laying out of the wise military

polity of feudalism. But scarcely has our author had time to show the

rapid progress of this plan all round Europe, when he starts on an

entirely new tack, suggested by his wish to introduce a historical

justification of Constitutional Monarchy. Feudal polity is of late

introduction in England, and appears as a compact between sovereign and

subjects; original freedom was not destroyed by this compact, and later

infringements of contractual rights by kings ultimately led to a

restoration and development of ancient liberties. In the parts of the

treatise which concern Private Law the keynote is given throughout by

that very Norman jurisprudence on which such severe condemnation is

passed with regard to Public Law. The Conquest is thus made to appear

alternately as a source of danger, struggle, and hardship from one point

of view, and as the origin of steady improvement in social condition

from another. In any case the aristocratic cast of English life is

deduced from its most ancient origins, and all the rights of the lower

orders are taken as the results of good-humoured concession on the part

of the lords of the soil and of quiet encroachment against them.

[Revolution in Historical literature. The Romantic school.]

Statements and arguments in Blackstone's style could hold water only

before that great crisis in history and historical literature by which

the nineteenth century was ushered into the world. The French

Revolution, and the reaction against it, laid open and put to the test

the working of all the chief forces engaged in historical life.

Government and social order, nationality and religion, economic

conditions and modes of thought, were thrown into the furnace to be

consumed or remoulded. Ideas and institutions which had towered over

centuries went down together, and their fall not only brought home the

transitory character of human arrangements, but also laid bare the

groundwork of society, which however held good in spite of the

convulsions on its surface. The generation that witnessed these storms

was taught to frame its politics and to understand history in a new

fashion[8]. The disorderly scepticism of the eighteenth century was

transformed by Niebuhr into a scientific method that paved the way by

criticism to positive results. On the other hand, the Utopian doctrines

of political rationalism were shattered by Savigny's teaching on the

fundamental importance of tradition and the unconscious organic growth

of nations. In his polemic with Thibaut, the founder of the historical

school of law enters a mighty protest against wanton reform on the

ground of a continuity of institutions not less real than the continuity

of language, and his 'History of Roman Law during the Middle Ages'

demonstrated that even such a convulsion as the Barbarian Invasion was

not sufficient to sweep away the foundations of law and social order

slowly formed in the past. Eichhorn's 'History of German Public and

Private Law' gave detailed expression to an idea which occurs also in

some of Savigny's minor works--to the idea, namely, that the German

nations have had to run through their history with an engrained tendency

in their character towards political dismemberment and social

inequality. This rather crude attempt at generalising out some

particular modern features and sanctioning them by the past is of

historical interest, because it corresponds to the general problem

propounded to history by the Romantic school: viz. to discover in the

various manifestations of the life of a nation its permanent character

and the leading ideas it is called to embody in history.

The comparative soundness of the English system had arrayed it from the

very beginning on the side of Conservatism against Revolution, and Burke

was the first to sound the blast of a crusade against subversive

theories. No wonder the historical discoveries on the Continent found a

responsive echo in English scholarship. Allen[9] took up the

demonstration that the Royal power in England had developed from the

conceptions of the Roman Empire. Palgrave[10] gave an entirely new

construction of Anglo-Saxon history, which could not but exercise a

powerful influence on the study of subsequent periods. His book is

certainly the first attempt to treat the problems of medieval social

history on a large scale and by new methods. It deserves special

attention[11].

[Sir Francis Palgrave.]

The author sat down to his work before the Revolution of 1830, although

his two volumes were published in 1832. He shares the convictions of

very moderate Liberalism, declares in favour of the gradual introduction

of reforms, and against any reform not framed as a compromise between

actual claims. Custom and tradition did not exclude change and

development in England, and for this reason the movement towards

progress did not tear that people from the inheritance of their

ancestors, did not disregard the mighty agency of historical education.

In order to study the relative force of the elements of progress and

conservatism in English history, Palgrave goes behind the external play

of institutions, and tries to connect them with the internal growth of

legal principles. It is a great, though usual, mistake to begin with

political events, to proceed from them to the study of institutions, and

only quite at the end to take up law. The true sequence is the inverse

one. And in England in particular the Constitution, with all its showy

and famous qualities, was formed under the direct influence of judicial

and legal institutions. In accordance with this leading view Palgrave's

work begins by a disquisition on classes, forms of procedure and

judicial organisation, followed up by an estimate of the effects of the

different Conquests, and ultimately by an exposition of the history of

government. We need not feel bound by that order, and may start from the

conclusion which gives the key to Palgrave's whole system.

The limited monarchy of England is a result of the action of two

distinct elements, equally necessary for its composition. It is a

manifestation of the monarchical power descended both in principle and

in particular attributes from the Roman Empire. If this political idea

had not been at work the kingdoms of the barbarians would have presented

only loose aggregates of separate and self-sufficient political bodies;

on the other hand, if this political idea had been supreme, medieval

kings would have been absolute. The principles of Teutonic and of Roman

polity had to work together, and the result was the medieval State with

an absolute king for its centre, and a great independence of local

parts. The English system differed from the continental in this way,

that in England the free judicial institutions of the localities reacted

on the central power, and surrounded it by constitutional limitations,

while the Continent had to content itself with estates of a very

doubtful standing and future. It is easy to see in this connexion how

great an importance we must assign to the constitution of local Courts:

the shires, hundreds, and townships are not mere administrative

divisions, but political bodies. That the kingdom formed itself on their

basis, not as an absolute but as a parliamentary monarchy, must be

explained in a great measure by the influence of the Norman Conquest,

which led to a closer union of the isolated parts, and to a

concentration of local liberty in parliament.

But (such is Palgrave's view) the importance of Conquests has been

greatly overrated in history. The barbarian invasion did not effect

anything like a sudden or complete subversion of things; it left in

force and action most of the factors of the preceding period. The

passage from one rule to another was particularly easy in England, as

most tribes which occupied the island were closely related to each

other. Palgrave holds that the Britons, Anglo-Saxons, Danes, and Normans

all belong to one and the same Teutonic race. There were, of course (he

allows), Celtic elements among the Britons, but the greater part

consisted of Belgian Kymrys, whose neighbours and kin are to be found on

the Continent as Saxons and Frisians. The conquest of the island by

bands of seafaring Saxons did not lead by any means to the wholesale

destruction and depopulation which the legendary accounts of the

chronicles report. The language of the Britons has not been preserved,

but then no more has the Celtic language in Gaul. The Danish and Norman

invasions had even less influence on social condition than the Saxon. It

is only the Roman occupation that succeeded in introducing into the life

of this island important and indestructible traits.

If we look at the results of all these migrations and ethnographical

mixtures, we have first to notice the stratifications of English

society according to rank. It is settled definitely enough in the Saxon

period on an aristocratic basis. In the main, society consists of eorls

and ceorls, noblemen and serfs. The difference does not consist merely

in a diversity of legal value, social influence and occupation, but also

in the fact that the ceorl may economically and legally be dependent on

the eorl, and afterwards on the thane. How did this aristocratic

constitution arise? Social distinctions of this kind may sometimes

originate in the oppression of the weak by the strong, and in voluntary

subjection, but, as a rule, they go back to conquest. There is every

reason to believe that the Anglo-Saxon conquerors, who were very few in

number, became the privileged class of the new States, and reduced the

Britons to serfdom; a corroboration of this assumption may be found in

the fact that the services of Celtic and Saxon peasantry are extremely

alike.

It is more difficult to trace the influence of different races in the

agrarian system, of which the township or manor is the unit. It is by

comparing it with the forms in its immediate neighbourhood that one gets

to understand its origin. The Roman organisation of husbandry and

ownership on the basis of individualism is too well known to be

described. In marked contrast with it stands the Celtic community, of

which survivals were lingering for a long time in Ireland and Wales.

Here the land is in the ownership of tribal groups: rights of

individuals and families expand and collapse according to the

requirements and decisions of the entire tribe; there is no hereditary

succession, but every grown-up clansman has a claim to be endowed with a

plot of land, and as a consequence of this, all land in separate

possession is constantly liable to be divided by the tribal community.

The Anglo-Saxon system is an intermediate stage between Roman

individualism and Celtic communalism. No wonder that the Saxons, who at

home followed a system closely resembling the Celtic, modified it when

they got acquainted with Roman forms and entered into their Roman

inheritance in Great Britain. The mixed organisation of the township

was the result of the assimilation.

[Estimate of Palgrave's work.]

Such are in the main those conclusions of Palgrave which have a direct

bearing on the questions before us. It is easy to perceive that they are

permeated by certain very general historical conceptions. He is greatly

impressed by the 'Vis inertiae' of social condition, and by the

continuity of historical development arising from it. And so in his work

the British population does not disappear without leaving any traces of

its existence; the Roman dominion exercises a most conspicuous influence

on important aspects of later condition--on central power, feudalism,

and agrarian organisation: the most recent of the Conquests--the Norman

invasion--is reduced to a comparatively secondary share in the framing

of society. The close connexion between Palgrave's ideas and the

currents of thought on the Continent is not less notable in his attempts

to determine the peculiarities of national character as manifested in

unconscious leanings towards certain institutions. The Teutonic system

is characterised by a tendency towards federalism in politics and an

aristocratic arrangement of society. The one tendency explains the

growth of the Constitution as a concentration of local self-government,

the other leads from the original and fundamental distinction between a

privileged class and a servile peasantry to the original organisation of

the township under a lord.

There can be no question as to the remarkable power displayed in

Palgrave's work, or as to the value of his results. He had an enormous

and varied store of erudition at his command, and the keenest eye for

observation. No wonder that many of his theories on particular subjects

have been eagerly taken up and worked out by later scholars. But apart

from such successful solutions of questions, his whole conception of

development was undoubtedly very novel and fruitful. One of Palgrave's

main positions--the intimate connexion between the external history of

the Constitution and the working of private law in the courts--opened a

wholly new perspective for the study of social history. But naturally

enough the first cast turned out rather rough and distorted. Palgrave is

as conspicuous for his arbitrary and fanciful treatment of his matter,

as for his learning and ingenuity. He does not try to get his data into

order or completeness, and has no notion of the methods of systematic

work. Comparisons of English facts with all kinds of phenomena in the

history of kindred and distant peoples sometimes give rise to suggestive

combinations, but, in most cases, out of this medley of incongruous

things they lead only to confusion of thought. In consequence of all

these drawbacks, Palgrave's attempt only started the inquiry in most

directions, but could not exhaust it in any.

[Romanists and Germanists.]

The two great elements of Western civilisation--Roman tradition and

Teutonic tendencies--were more or less peacefully brought together in

the books of Savigny, Eichhorn, and Palgrave. But in process of time

they diverged into a position of antagonism. Their contrast not only

came out as a result of more attention and developed study; it became

acute, because in the keen competition of French and German scholarship,

historians, consciously and unconsciously, took up the standpoint of

national predilection, and followed their bias back into ancient times.

Aug. Thierry, while protesting against the exaggerations of

eighteenth-century systems, considered the development of European

nations almost entirely as a national struggle culminating in conquest,

but underlying most facts in the history of institutions. He began, for

the sake of method, by tracing the conflict on English ground where

everything resolved itself to his eye into open or hidden strife between

Norman and Saxon[12]. But William the Bastard's invasion led him by a

circuitous way to the real object of his interest--to the gradual rise

of Gallo-Roman civilisation against the Teutonic conquest in France:

historical tendencies towards centralised monarchy and municipal

bourgeoisie were connected by him with the present political condition

of France as the abiding legacy of Gallo-Roman culture[13].

Men of great power and note, from Raynouard[14] and B. Guerard[15] down

to Fustel de Coulanges[16] in our own days, have followed the same track

with more or less violence and exaggeration. They are all at one in

their animosity towards Teutonic influence in the past, all at one in

lessening its effects, and in trying to collect the scattered traces of

Romanism in principle and application. The Germans did not submit meekly

to the onslaught, but went as far as the Romanists on the other side.

Loebell[17], Waitz[18], and Roth[19]--to speak only of the heads of the

school--have held forth about the mighty part which the Teutons have

played in Europe; they have enhanced the beneficial value of Germanic

principles, and tried to show that there is no reason for laying to

their account certain dark facts in the history of Europe. The Germanist

school had to fight its way not only against Romanism, but against

divers tenets of the Romantic school as represented by Savigny and

Eichhorn, of which Romanists had availed themselves. The whole doctrine

was to be reconsidered in the light of two fundamental assumptions. The

foundations of social life were sought not in aristocracy, but in the

common freedom of the majority of the people: the German middle class,

the 'Buergers,' who form the strength of contemporary Germany, looked to

the past history of their race as vouching for their liberty; the

destinies of that particular class became the test of social

development. Then again the disruptive tendency of German national

character was stoutly denied, and all the historical instances of

disruption were demonstrated to be quite independent of any leaning of

the race. In the great fermentation of thought which led indirectly to

the unification of Germany, the best men in the country refused to

believe that Western Europe had fallen to pieces into feudalism because

Teutonic development is doomed to strife and helplessness by deeply

engrained traits of character[20]. German scholarship found a most

powerful ally in this period of its history in the literature of kindred

England: German and English investigators stood side by side in the same

ranks. Kemble, K. Maurer, Freeman, Stubbs, and Gneist form the goodly

array of the Germanist School on English soil.

[Kemble.]

Kemble's position is, strictly speaking, an intermediate one: in some

respects he is very near to Eichhorn and Grimm; although his chief work

was published in 1849, he was not acquainted with Waitz's first books.

But Kemble is mostly in touch with those parts of Eichhorn's theory

which could be accepted by later Germanists; other important tenets of

the Romantic School are left in the shade or rejected, and as a whole

Kemble's teaching is essentially Germanistic. Kemble's 'Saxons in

England' takes its peculiar shape and marks an epoch in English

historical literature, mainly because it presents the first attempt to

utilise the enormous material of Saxon Charters, in the collection of

which Kemble has done such invaluable work. With this copious and exact,

but very onesided, material at his disposal, our author takes little

notice of current tales about the invasion of Great Britain by Angles

and Saxons. Such tales may be interesting from a mythological or

literary point of view, but the historian cannot accept them as

evidence. At the same time one cannot but wish to try and get certain

knowledge of an historical fact, which, as far as the history of England

is concerned, appears as the first manifestation of the Teutonic race in

its stupendous greatness. Luckily enough we have some means to judge of

the invasion in the names of localities and groups of population. Read

in this light the history of Conquest appears very gradual and ancient.

It began long before the recorded settlements, and while Britain was

still under Roman sway. The struggle with the Celts was a comparatively

easy one; the native population was by no means destroyed, but remained

in large numbers in the lower orders of society. Notwithstanding such

remnants, the history of the Anglo-Saxon period is entirely Teutonic in

its aspect, and presents only one instance of the general process by

which the provinces of the Empire were modified by conquerors of

Teutonic race.

The root of the whole social system is to be found in the Mark, which is

a division of the territory held jointly by a certain number of freemen

for the purposes of cultivation, mutual help and defence. The community

began as a kinship or tribe, but even when the original blood ties were

lost sight of and modified by the influx of heterogeneous elements, the

community remained self-sufficient and isolated. The whole fabric of

society rested on property in land: as its political divisions were

based on the possession of common lands, even so the rank of an

individual depended entirely on his holding. The Teutonic world had no

idea of a citizen severed from the soil. The curious fact that the

normal holding, the hide, was equal all over England (33-1/2 acres) can

be explained only by its origin; it came full-formed from Germany and

remained unchanged in spite of all diversities of geographical and

economical conditions.

The transformation of medieval society is, for Kemble, intimately

connected with the forms of ownership in land. The scanty population of

ancient times had divided only a very small part of the country into

separate holdings. The rest remained in the hands of the people to

supply the wants of coming generations. The great turn towards feudalism

was given by the fact that this reserve-fund lapsed into the hands of a

few magnates: the mass of free people being deprived of its natural

sphere of expansion was forced to seek its subsistence at the hands of

private lords (loaf-givers). From the point of view of personal status

the same process appears in the decrease of freedom among the people and

in the increase of the so-called Gesieth. According to Teutonic principles

a man is free only if he has land to feed upon, strength to work, and

arms to defend himself. The landless man is unfree; and so is the

Gesiethcundman, the follower, however strong and wealthy he may be

through his chief's grace. The contrast between the free ceorls tilling

their own land and the band of military followers, who are always

considered as personally dependent--this contrast is a marked one. From

the first this military following had played an important part in German

history. Most raids and invasions had been its work, and sometimes whole

tribes were attracted into its organisation, but during the first period

of Saxon history the free people were sufficiently strong to hold down

the power of military chiefs within certain bounds. Not so in later

development. With the growth of population, of inequalities, of social

competition, the relations of dependency are seen constantly gaining on

the field of freedom. The spread of commendation leads not only to a

change in the distribution of ranks, but to a dismemberment of political

power, to all kinds of franchises and private encroachments on the

State.

I may be excused for marshalling all these well-known points before the

public by the consideration that they must serve to show how intimately

these views are connected with the general principles of a great school.

The stress laid by Kemble on property in land ought to be noticed

especially: land gets to be the basis of all political and social

condition. This is going much further than Palgrave ever went; though

not further than Eichhorn. What actually severs Kemble from the

Romantics is his estimate of the free element in the people. He does not

try to picture a kind of political Arcadia in Saxon England, but there

is no more talk about the rightless condition of the ceorls or the

predominance of aristocracy. The Teutonic race towers above everything.

Although the existence of Celts after the Conquests is admitted, neither

Celtic nor Roman elements appear as exercising any influence in the

course of history. Everything takes place as if Germanic communities had

been living and growing on soil that had never before been appropriated.

Curiously enough the weakest point of Kemble's doctrine seems to lie in

its very centre--in his theory of social groups. One is often reminded

of Grimm by his account of the Mark, and it was an achievement to call

attention to such a community as distinct from the tribal group, but the

political, legal, and economical description of the Mark is very vague.

As to the reasoning about gilds, tithings, and hundreds, it is based on

a constant confusion of widely different subjects.

Generally speaking, it is not for a lawyer's acuteness and precision

that one has to look in Kemble's book: important distinctions very often

get blurred in his exposition, and though constantly protesting against

abstract theories and suppositions not based on fact, he indulges in

them a great deal himself. Still Kemble's work was very remarkable: his

extensive, if not very critical study of the charters opened his eyes to

the first-rate importance of the law of real property in the course of

medieval history: this was a great step in advance of Palgrave, who had

recognised law as the background of history, but whose attention had

been directed almost exclusively to the formal side--to judicial

institutions. And Kemble actually succeeded in bringing forward some of

the questions which were to remain for a long time the main points of

debate among historians.

[K. Maurer.]

The development of the school was evidently to proceed in the direction

of greater accuracy and improved methods. Great service has been done in

this respect by Konrad Maurer[21]. He is perhaps sometimes inclined to

magnify his own independence and dissent from Kemble's opinions, but he

has undoubtedly contributed to strengthen and clear up some of Kemble's

views, and has gone further than his predecessor on important subjects.

He accepts in the main Kemble's doctrines as to the Mark, the allotment

of land, the opposition of folkland and book-land, and expounds them

with greater fulness and better insight into the evidence. On the other

hand he goes his own way as to the Gesieths (Gefolgschaft), and the part

played by large estates in the political process. Maurer reduces the

importance of the former and lays more stress on the latter than

Kemble[22]. Altogether the German scholar's investigations have been of

great moment, and this not only for methodical reasons, but also because

they lead to a complete emancipation of the school from Eichhorn's

influence.

[Freeman.]

As to the Conquests, Germanist views have been formulated with great

authority by Freeman. A comparison of the course of development in

Romance countries with the history of England, and a careful study of

that evidence of the chronicles which Kemble disregarded, has led the

historian of the Norman Conquest to the conclusion, that the Teutonic

invaders actually rooted out most of the Romanised Celtic population of

English Britain, and reduced it to utter insignificance in those western

counties where they did not destroy it. It is the only inference that

can be drawn from the temporary disappearance of Christianity, from the

all but complete absence of Celtic and Latin words in the English

tongue, from the immunity of English legal and social life from Roman

influence. The Teutonic bias which was given to the history of the

island by the Conquest of Angles and Saxons has not been altered by the

Conquest of the Normans. The foreign colouring imparted to the language

is no testimony of any radical change in the internal structure of the

people: it remained on the surface, and the history of the island

remained English, that is, Teutonic. Even feudalism, which appears in

its full shape after William the Bastard's invasion, had been prepared

in its component parts by the Saxon period. In working out particulars

Freeman had to reckon largely with Kemble's work and to strike the

balance between the conflicting and onesided theories of Thierry and

Palgrave. Questions of legal and social research concern him only so far

as they illustrate the problem of the struggle and fusion of national

civilisations. His material is chiefly drawn from chronicles, and the

history of external facts of war, government, and legislation comes

naturally to the fore. But all the numberless details tend towards one

end: they illustrate the Teutonic aspect of English culture, and assign

it a definite place in the historical system of Europe.

[Stubbs.]

Stubbs' 'Constitutional History,' embracing as it does the whole of the

Middle Ages, is not designed to trace out some one idea for the sake of

its being new or to take up questions which had remained unheeded by

earlier scholars. Solid learning, critical caution and accuracy are the

great requirements of such an undertaking, and every one who has had

anything to do with the Bishop of Oxford's publications knows to what

extent his work is distinguished by these qualities. If one may speak of

a main idea in such a book as the Constitutional History of a people,

Stubbs' main idea seems to be, that the English Constitution is the

result of administrative concentration in the age of the Normans of

local self-govermment formed in the age of the Saxons. This conclusion

is foreshadowed in Palgrave's work, but what appears there as a mere

hypothesis and in confusion with all kinds of heterogeneous elements,

comes out in the later work with the overwhelming force of careful and

impartial induction. Stubbs' point of view is a Germanist one. The book

begins with an estimate of Teutonic influence in the different countries

of Europe, and England is taken in one sense as the most perfect

manifestation of the Teutonic historical tendency. The influx of

Frenchmen and French ideas under William the Conqueror and after him

had important effects in rousing national energy, contributing to

national unification, settling the forms of administration and justice,

but at bottom there remained the Teutonic character of the nation. The

'Constitutional History' approaches the question of the village

community, but its object is strictly limited to the bearing of the

problem on general history and to the testimony of direct authority. It

starts from the community in land as described by Caesar and Tacitus, and

notices that Saxon times present only a few scattered references to

communal ownership. Most of the arable land was held separately, but the

woods, meadow, and pasture still remained in the ownership of village

groups. The township with its rights and duties as to police, justice,

and husbandry was modified but not destroyed by feudalism. The change

from personal relations to territorial, and from the freedom of the

masses to their dependency, is already very noticeable in the Saxon

period. The Norman epoch completed the process by substituting

proprietary rights in the place of personal subordination and political

subjection. Still even after conquest and legal theory had been over the

ground, the compact self-government of the township is easily

discernible under the crust of the manorial system, and the condition of

medieval villains presents many traces of original freedom.

[Gneist.]

Gneist's work is somewhat different in colouring and closely connected

with a definite political theory. Tocqueville in France has done most to

draw attention to the vital importance of local self-government in the

development of liberal institutions; and Stubbs' history goes far to

demonstrate Tocqueville's general view by a masterly statement as to the

origins of English institutions. In Gneist's hands the doctrine of

decentralisation assumes a particular shape by the fact that it is

constructed on a social foundation; the German thinker has been trying

all along to show that the English influence is not one of

self-government only, but of aristocratical self-government. The part

played by the gentry in local and central affairs is the great point of

historical interest in Gneist's eyes. Even in the Saxon period he lays

stress chiefly on the early rise of great property, and the great

importance of 'Hlafords' in social organisation. He pays no attention to

the village community, and chiefly cares for the landlord. But still

even Gneist admits the original personal freedom of the great mass of

the people, and his analysis of the English condition is based on the

assumption, that it represents one variation of Teutonic development:

this gives Gneist a place among the Germanists, although his views on

particular subjects differ from those of other scholars of the same

school.[23]

[The Mark system.]

Its chief representatives have acquired such a celebrity that it is

hardly necessary to insist again, that excellent work has been done by

them for the study of the past. But the direction of their work has been

rather one-sided; it was undertaken either from the standpoint of

political institutions or from that of general culture and external

growth; the facts of agriculture, of the evolution of classes, of legal

organisation were touched upon only as subsidiary to the main objects of

general history. And yet, even from the middle of the century, the

attention of Europe begins to turn towards those very facts. The

'masses' come up with their claims behind the 'classes,' the social

question emerges in theory and in practice, in reform and revolution;

Liberals and Conservatives have to reckon with the fact that the great

majority of the people are more excited, and more likely to be moved by

the problems of work and wages than by problems of political influence.

The everlasting, ever-human struggle for power gets to be considered

chiefly in the light of the distribution of wealth; the distribution of

society into classes and conditions appears as the connecting link

between the economical process and the political process. This great

change in the aspect of modern life could not but react powerfully on

the aspect of historical literature. G.F. von Maurer and Hanssen stand

out as the main initiators of the new movement in our studies. The many

volumes devoted by G.F. Maurer[24] to the village and the town of

Germany are planned on a basis entirely different from that of his

predecessors. Instead of proceeding from the whole to the parts, and of

using social facts merely as a background to political history, he

concentrates everything round the analysis of the Mark, as the

elementary organisation for purposes of husbandry and ownership. The

Mark is thus taken up not in the vague sense and manner in which it was

treated by Kemble and his followers; it is described and explained on

the strength of copious, though not very well sifted, evidence. On the

other hand, Hanssen's masterly essays[25] on agrarian questions, and

especially on the field-systems, gave an example of the way in which

work was to be done as to facts of husbandry proper.

[Nasse.]

Nasse's pamphlet on the village community[26] may be considered as the

first application of the new methods and new results to English history.

The importance of his little volume cannot easily be overrated: all

subsequent work has had to start from its conclusions.

Nasse's picture of the ancient English agricultural system, though drawn

from scanty sources, is a very definite one. Most of the land is

enclosed only during the latter part of the year, and during the rest of

the year remains in the hands of the community. Temporary enclosures

rise upon the ploughed field while the crop is growing; their object,

however, is not to divide the land between neighbours but to protect the

crop against pasturing animals; the strips of the several members of the

township lie intermixed, and their cultivation is not left to the views

and interests of the owners, but settled by the community according to

a general plan. The meadows are also divided into strips, but these

change hands in a certain rotation determined by lot or otherwise. The

pasture ground remains in the possession of the whole community. The

notion of private property, therefore, can be applied in this system

only to the houses and closes immediately adjoining them.

Then the feudal epoch divides the country into manors, a form which

originated at the end of the Saxon period and spread everywhere in

Norman times. The soil of the manor consists of demesne lands and

tributary lands. These two classes of lands do not quite correspond to

the distinction between land cultivated by the lord himself and soil

held of him by dependants; there may be leaseholders on the demesne, but

there the lord is always free to change the mode of cultivation and

occupation, while he has no right to alter the arrangements on the

tributary portion. This last is divided between free socmen holding on

certain conditions, villains and cottagers. The villains occupy equal

holdings; their legal condition is a very low one, although they are

clearly distinguished from slaves, and belong more to the soil than to

the lord. The cottagers have homesteads and crofts, but no holdings in

the common fields; the whole group presents the material from which, in

process of time, the agricultural labourers have been developed.

The common system of husbandry manifests itself in many ways: the small

holders club together for ploughing; four virgates or yardlands have to

co-operate in order to start an eight-oxen plough. The services are

often laid upon the whole village and not on separate householders; on

the other hand the village, as a whole, enters into agreement with the

lord about leases or commutation of services for money.

Each holding is formed of strips which lie intermixed with the component

parts of other holdings in different fields, and this fact is intimately

connected with the principle of joint ownership. The whole system begins

to break up in the thirteenth century, much earlier than in France or

Germany. As soon as services get commuted for money rents, it becomes

impossible to retain the labouring people in serfdom. Hired labourers

and farmers take the place of villains, and the villain's holding is

turned into a copyhold and protected by law. Although the passage to

modern forms begins thus early, traces of the original communalism may

be found everywhere, even in the eighteenth century.

[Maine.]

Nasse's pamphlet is based on a careful study of authorities, and despite

its shortness must be treated as a work of scientific research. But if

all subsequent workers have to reckon with it in settling particular

questions, general conceptions have been more widely influenced by Sir

Henry Maine's lectures, which did not aim at research, and had in view

the broad aspects of the subject. Their peculiar method is well known to

be that of comparing facts from very different environments--from the

Teutonic, the Celtic, the Hindu world; Maine tries to sketch a general

process where other people only see particular connexions and special

reasons. The chapters which fall within the line of our inquiry are

based chiefly on a comparison between Western Europe and India. The

agrarian organisation of many parts of India presents at this very day,

in full work and in all stages of growth and decay, the village

community of which some traces are still scattered in the records of

Europe. There and here the process is in the main the same, the passage

from collective ownership to individualism is influenced by the same

great forces, notwithstanding all the differences of time and place. The

original form of agrarian arrangement is due to the settlement of a

group of free men, which surrenders to its individual members the use of

arable land, meadows, pasture and wood, but retains the ownership and

the power to control and modify the rights of using the common land.

There can be no doubt that the legal theory, which sees in the modern

rights of commoners mere encroachments upon the lord, carries feudal

notions back into too early a period.

The real question as conceived by Maine is this--By what means was the

free village community turned into the manor of the lord? The petty

struggles between townships must have led to the subjugation of some

groups by others; in each particular village the headman had the means

to use his authority in order to improve his material position; and when

a family contrived to retain an office in the hands of its members this

at once gave matters an aristocratical turn. In Western Europe external

causes had to account for a great deal in the gradual rise of

territorial lordship. When the barbarian invaders came into contact with

Roman civilisation and took possession of the provincial soil, they

found private ownership and great property in full development, and

naturally fell under the influence of these accomplished facts; their

village community was broken up and transformed gradually into the

manorial system[27].

Maine traces economic history from an originally free community; Nasse

takes the existence of such a community for granted. The statements of

one are too general, however, and sometimes too hypothetical, the other

has in view husbandry proper rather than the legal development of social

classes. Maurer's tenets, to which both go back, present a very coherent

system in which all parts hold well together; but each part taken

separately is not very well grounded on fact. The one-sided preference

given to one element does not allow other important elements to appear;

the wish to find in the authorities suitable arguments for a favourite

thesis leads to a confusion of materials derived from different epochs.

These defects naturally called for protest and rectification; but the

reaction against Maurer's teaching has gone so far and comes from such

different quarters, that one has to look for its explanation beyond the

range of historical research.

[Reactionary movement.]

Late years have witnessed everywhere in Europe a movement of thought

which would have been called reactionary some twenty years ago[28]. Some

people are becoming very sceptical as to principles which were held

sacred by preceding generations; at the same time elements likely to be

slighted formerly are coming to the front in great strength nowadays.

There have been liberals and conservatives at all times, but the

direction of the European mind, saving the reaction against the French

Revolution and Napoleon, has been steadily favourable to the liberal

tendency. For two centuries the greatest thinkers and the course of

general opinion have been striving for liberty in different ways, for

the emancipation of individuals, and the self-government of communities,

and the rights of masses. This liberal creed has been, on the whole, an

eminently idealist one, assuming the easy perfectibility of human

nature, the sound common sense of the many, the regulating influence of

consciousness on instinct, the immense value of high political

aspirations for the regeneration of mankind. In every single attempt at

realising its high-flying hopes the brutal side of human nature has made

itself felt very effectually, and has become all the more conspicuous

just by reason of the ironical contrast between aims and means. But the

movement as a whole was certainly an idealist one, not only in the

eighteenth but even in the nineteenth century, and the necessary

repressive tendency appeared in close alliance with officialism, with

unthinking tradition, and with the egotism of classes and individuals.

Many events have contributed of late years to raise a current of

independent thought which has gone far in criticising and stemming back

liberal doctrines, if not in suppressing them. The brilliant

achievements of historical monarchy in Germany, the ridiculous misery to

which France has been reduced by conceited and impotent politicians, the

excesses of terrorist nihilism in Russia, the growing sense of a coming

struggle on questions of radical reform--all these facts have worked

together to generate a feeling which is far from being propitious to

liberal doctrines. Socialism itself has been contributing to it directly

by laying an emphatic stress on the conditions of material existence,

and treating political life merely as subordinate to economic aims. In

England the repressive tendency has been felt less than on the

Continent, but even here some of the foremost men in the country are

beginning, in consequence of social well-known events, to ask

themselves: Whither are we drifting? The book which best illustrates the

new direction of thought is probably Taine's 'Origines de la France

Contemporaine.' It is highly characteristic, both in its literary

connexion with the profound and melancholy liberalism of Tocqueville,

and in its almost savage onslaught on revolutionary legend and doctrine.

In the field of historical research the fermentation of political

thought of which I have been speaking has been powerfully seconded by a

growing distrust among scholars for preconceived theories, and by the

wish to reconsider solutions which had been too easily taken for

granted. The combined action of these forces has been curiously

experienced in the particular subject of our study. The Germanist school

had held very high the principle of individual liberty, had tried to

connect it with the Teutonic element in history, had explained its

working in the society described by Tacitus, and had regretfully

followed its decay in later times. For the representatives of the New

School this 'original Teutonic freedom' has entirely lost its

significance, and they regard the process of social development as

starting with the domination of the few and the serfdom of the many. The

votaries of the free village community have been studying with interest

epochs and ethnographical variations unacquainted with the economic

individualism of modern Europe, they have been attentive in tracing out

even the secondary details of the agrarian associations which have

directed the husbandry of so many centuries, but the New School

subordinates communal practice to private property and connects it with

serfdom. We may already notice the new tendency in Inama-Sternegg's

Wirthschaftsgeschichte[29]: he enters the lists against Maurer, denies

that the Mark ever had anything to do with political work, reduces its

influence on husbandry, and enhances that of great property. The most

remarkable of French medievalists--Fustel de Coulanges--has been

fighting all along against the Teutonic village community, and for an

early development of private property in connexion with Roman influence.

English scholarship has to reckon with similar views in Seebohm's

well-known work.

[Seebohm.]

Let us recall to mind the chief points of his theory. The village

community of medieval England is founded on the equality of the holdings

in the open fields of the village. The normal holding of a peasant

family is not only equal in each separate village, but it is

substantially the same all over England. Variations there are, but in

most cases by far it consists of the virgate of thirty acres, which

makes the fourth part of the hide of a hundred and twenty acres, because

the peasant holder owns only the fourth part of the ploughteam of eight

oxen corresponding to the hide. The holders of virgates or yardlands are

not the only people in the village; their neighbours may have more or

less land, but there are not many classes as a rule, all the people in

the same class are equalised, and the virgate remains the chief

manifestation of the system. It is plain that such equality could be

maintained only on the principle that each plot was a unit which was

neither to be divided nor thrown together with other plots. Why did such

a system spread all over Europe? It could not develop out of a free

village community, as has been commonly supposed, because the Germanic

law regulating free land does not prevent its being divided; indeed,

where this law applies, holdings get broken up into irregular plots. If

the system does not form itself out of Germanic elements, it must come

from Roman influence; one has only the choice between the two as to

facts which prevail everywhere in Western Europe. Indeed, the Roman

villa presents all the chief features of the medieval manor. The lord's

demesne acted as a centre, round which _coloni_ clustered--cultivators

who did not divide their tenancies because they did not own them. The

Roman system was the more readily taken up by the Germans, as their own

husbandry, described by Tacitus, had kindred elements to show--the

condition of their slaves, for instance, was very like that of Roman

coloni. It must be added, that we may trace in Roman authorities not

only the organisation of the holdings, but such features as the

three-field partition of the arable and the intermixed position of the

strips belonging to a single holding.

The importance of these observations taken as a whole becomes especially

apparent, if we compare medieval England with Wales or Ireland, with

countries settled by the Celts on the principle of the tribal community:

no fixed holdings there; it is not the population that has to conform

itself to fixed divisions of land, but the divisions of land have to

change according to the movement of the population. Such usage was

prevalent in Germany itself for a time, and would have been prevalent

there as long as in Celtic countries, if the Germans had not come under

Roman influence. And so the continuous development of society in

England starts from the position of Roman provincial soil.

The Saxon invasion did not destroy what it found in the island. Roman

villas and their labourers passed from one lord to the other--that is

all. The ceorls of Saxon times are the direct descendants of Roman

slaves and coloni, some of them personally free, but all in agrarian

subjection. Indeed, social development is a movement from serfdom to

freedom, and the village community of its early stages is connected not

with freedom, but with serfdom.

Seebohm's results have a marked resemblance to some of the views held by

the eighteenth-century lawyers, and also to those held by Palgrave and

by Coote, but his theory is nevertheless original, both in the connexion

of the parts with the whole, and in its arguments: he knows how to place

in a new light evidence which has been known and discussed for a long

time, and for this reason his work will be suggestive reading even to

those who do not agree with the results. The chief strength of his work

lies in the chapters devoted to husbandry; but if one accepts his

conclusions, what is to be done with the social part of the question?

Both sides, the economic and the social, are indissolubly allied, and at

the same time the extreme consequences drawn from them give the lie

direct to everything that has hitherto been taken for granted and

accepted as proved as to this period. Can it really be true that the

great bulk of free men was originally in territorial subjection, or

rather that there never was such a thing as a great number of free men

of German blood, and that the German conquest introduced only a cluster

of privileged people which merged into the habits and rights of Roman

possessors? If this be not true and English history testifies on every

point to a deeper influence exercised by the German conquerors, does not

the collapse of the social conclusion call in question the economical

premisses? Does not a logical development of Seebohm's views lead to

conclusions that we cannot accept? These are all perplexing questions,

but one thing is certain; this last review of the subject has been

powerful enough to necessitate a reconsideration of all its chief

points.

[Results attained by conflict between successive theories.]

Happily, this does not mean that former work has been lost. I have not

been trying the patience of my readers by a repetition of well-known

views without some cogent reasons. The subject is far too wide and

important to admit of a brilliantly unexpected solution by one mind or

even one generation of workers. A superficial observer may be so much

struck by the variations and contradictions, that he will fail to

realise the intimate dependence of every new investigator on his

predecessors. 'The subjective side of history,' as the Germans would

say, has been noticed before now and the taunt has been administered

with great force: 'Was Ihr den Geist der Zeiten heisst, das ist im Grund

der Herren eigener Geist, in dem die Zeiten sich bespiegeln.' Those who

do not care to fall a prey to Faust's scepticism, will easily perceive

that individual peculiarities and political or national pretensions will

not account for the whole of the process. Their action is powerful

indeed: the wish to put one's own stamp on a theory and the reaction of

present life on the past are mighty incitements to work. But new schools

do not rise in order to pull down everything that has been raised by

former schools, new theories always absorb old notions both in treatment

of details and in the construction of the whole. We may try, as

conclusion of our review of historical literature, to notice the

permanent gains of consecutive generations in the forward movement of

our studies. The progress will strike us, not only if we compare the

state of learning at both ends of the development, but even if we take

up the links of the chain one by one.

The greatest scholars of the time before the French Revolution failed in

two important respects: they were not sufficiently aware of the

differences between epochs; they were too ready with explanations drawn

from conscious plans and arrangements. The shock of Revolution and

Reaction taught people to look deeper for the laws of the social and

political organism. The material for study was not exactly enlarged,

but instead of being thrown together without discrimination, it was

sifted and tried. Preliminary criticism came in as an improvement in

method and led at once to important results. Speaking broadly, the field

of conscious change was narrowed, the field of organic development and

unconscious tradition widened. On this basis Savigny's school

demonstrated the influence of Roman civilisation in the Middle Ages,

started the inquiry as to national characteristics, and shifted the

attention of historians from the play of events on the surface to the

great moral and intellectual currents which direct the stream.

Palgrave's book bears the mark of all these ideas, and it may be noticed

especially that his chief effort was to give a proper background to

English history by throwing light on the abiding institutions of the

law.

None of these achievements was lost by the next generation of workers.

But it had to start from a new basis, and had a good deal to add and to

correct. Modern life was busy with two problems after the collapse of

reaction had given way to new aspirations: Europe was trying to strike a

due balance between order and liberty in the constitutional system;

nationalities that had been rent by casual and artificial influences

were struggling for independence and unity. The Germanist School arose

to show the extent to which modern constitutional ideas were connected

with medieval facts, and the share that the German element has had in

the development of institutions and classes. As to material, Kemble

opened a new field by the publication of the Saxon charters, and the

gain was felt at once in the turn given towards the investigation of

private law, which took the place of Palgrave's vague leaning towards

legal history. The methods of careful and cautious inquiry as to

particular facts took shape in the hands of K. Maurer and Stubbs, and

the school really succeeded, it seems to me, in establishing the

characteristically Germanic general aspect of English history, a result

which does not exclude Roman influence, but has to be reckoned with in

all attempts to estimate definitely its bearing and strength.

The rise of the social question about the middle of our century had, as

its necessary consequence, to impress upon the mind of intelligent

people the vast importance of social conditions, of those primary

conditions of husbandry, distribution of wealth and distribution of

classes, which ever, as it were, loom up behind the pageant of political

institutions and parties. Nasse follows up the thread of investigation

from the study of private law towards the study of economic conditions.

G.F. v. Maurer and Maine enlarge it in scope, material, and means by

their comparative inquiry, taking into view, first, all varieties of the

Teutonic race, and then the development of other ethnographical

branches. The village community comes out of the inquiry as the

constitutive cell of society during an age of the world, quite as

characteristic of medieval structure, as the town community or 'civitas'

was of ancient polity.

The consciousness that political and scientific construction has been

rather hasty in its work, that it has often been based upon doctrines

instead of building on the firm foundation of facts--the widely spread

perception of these defects has been of late inciting statesmen and

thinkers to put to use some of those very elements which were formerly

ignored or rejected. The manorial School--if I may be allowed to use

this expression--has brought forward the influence of great landed

estates against the democratical conception of the village community.

The work spent upon this last phenomenon is by no means undone; on the

contrary, it was received in most of its parts. But new material was

found in the manorial documents of the later middle ages, the method of

investigation 'from the known to the unknown' was used both openly and

unconsciously, comparative inquiry was handled for more definite, even

if more limited purposes. Great results cannot be contested: to name

one--the organising force of aristocratic property has been acknowledged

and has come to its rights.

But the new impetus given to research has caused its originators to

overleap themselves, as it were. They have occupied so exclusively the

point of view whence the manor of the later middle ages is visible that

they have disregarded the evidence which comes from other quarters

instead of finding an explanation which will satisfy all the facts. The

investigation 'from the known to the unknown' has its definite danger,

against which one has to be constantly on one's guard: its obvious

danger is to destroy perspective and ignore development by carrying into

the 'unknown' of early times that which is known of later conditions.

Altogether the attempt to overthrow some of the established results of

investigation as to race and classes does not seem to be a happy one.

And so, although great work has been done in our field of study, it

cannot be said that it has been brought to a close--'bis an die Sterne

weit.' Many things remain to be done, and some problems are especially

pressing. The legal and the economical side of the inquiry must be

worked up to the same level; manorial documents must be examined

systematically, if not exhaustively, and their material made to fit with

the evidence established from other sources of information; the whole

field has to be gone over with an eye for proof and not for doctrine. A

review of the work already done, and of the names of scholars engaged in

it, is certainly an incitement to modesty for every new reaper in the

field, but it is also a source of hope. It shows that schools and

leading scholars displace one another more under the influence of

general currents of thought than of individual talent. The ferment

towards the formation of groups comes from the outside, from the modern

life which surrounds research, forms the scholar, suggests solutions.

Moreover, theoretical development has a continuity of its own; all the

strength of this manifold life cannot break or turn back its course, but

is reduced to drive it forward in ever new bends and curves. The present

time is especially propitious to our study: one feels, as it were, that

it is ripening to far-reaching conclusions. So much has been done

already for this field of enquiry in the different countries of Europe,

that the hope to see in our age a general treatment of the social

origins of Western Europe will not seem an extravagant one. And such a

treatment must form as it were the corner-stone of any attempt to trace

the law of development of human society. It is in this consciousness of

being borne by a mighty general current, that the single scholar may

gather hope that may buoy him against the insignificance of his forces

and the drudgery of his work.

FIRST ESSAY.

THE PEASANTRY OF THE FEUDAL AGE.

CHAPTER I.

THE LEGAL ASPECT OF VILLAINAGE. GENERAL CONCEPTIONS.

[Medieval serfdom.]

It has become a commonplace to oppose medieval serfdom to ancient

slavery, one implying dependence on the lord of the soil and attachment

to the glebe, the other being based on complete subjection to an owner.

There is no doubt that great landmarks in the course of social

development are set by the three modes hitherto employed of organising

human labour: using the working man (1) as a chattel at will, (2) as a

subordinate whose duties are fixed by custom, (3) as a free agent bound

by contract. These landmarks probably indicate molecular changes in the

structure of society scarcely less important than those political and

intellectual revolutions which are usually taken as the turning-points

of ancient, medieval, and modern history.

And still we must not forget, in drawing such definitions, that we reach

them only by looking at things from such a height that all lesser

inequalities and accidental features of the soil are no longer sensible

to the eyesight. In finding one's way over the land one must needs go

over these very inequalities and take into account these very features.

If, from a general survey of medieval servitude, we turn to the actual

condition of the English peasantry, say in the thirteenth century, the

first fact we have to meet will stand in very marked contrast to our

general proposition.

[Importance of legal treatment.]

The majority of the peasants are villains, and the legal conception of

villainage has its roots not in the connexion of the villain with the

soil, but in his personal dependence on the lord.

If this is a fact, it is a most important one. It would be reckless to

treat it as a product of mere legal pedantry[30]. The great work

achieved by the English lawyers of the twelfth and thirteenth centuries

was prompted by a spirit which had nothing to do with pedantry. They

were fashioning state and society, proudly conscious of high aims and

power, enlightened by the scholastic training of their day, but

sufficiently strong to use it for their own purposes; sound enough not

to indulge in mere abstractions, and firm enough not to surrender to

mere technicalities[31]. In the treatment of questions of status and

tenure by the lawyers of Henry II, Henry III, and Edward I, we must

recognise a mighty influence which was brought to bear on the actual

condition of things, and our records show us on every page that this

treatment was by no means a matter of mere theory. Indeed one of the

best means that we have for estimating the social process of those times

is afforded by the formation and the break up of legal notions in their

cross influences with surrounding political and economic facts.

[Definition and terminology of villainage at Common Law.]

As to the general aspect of villainage in the legal theory of English

feudalism there can be no doubt. The 'Dialogus de Scaccario' gives it in

a few words: the lords are owners not only of the chattels but of the

bodies of their _ascripticii_, they may transfer them wherever they

please, 'and sell or otherwise alienate them if they like[32].'

Glanville and Bracton, Fleta and Britton[33] follow in substance the

same doctrine, although they use different terms. They appropriate the

Roman view that there is no difference of quality between serfs and

serfs: all are in the same abject state. Legal theory keeps a very firm

grasp of the distinction between status and tenure, between a villain

and a free man holding in villainage, but it does not admit of any

distinction of status among serfs: _servus_, _villanus_, and _nativus_

are equivalent terms as to personal condition, although this last is

primarily meant to indicate something else besides condition, namely,

the fact that a person has come to it by birth[34]. The close connexion

between the terms is well illustrated by the early use of _nativa_,

nieve, 'as a feminine to _villanus_.'

[Treatment of villainage in legal practice.]

These notions are by no means abstractions bereft of practical import.

Quite in keeping with them, manorial lords could remove peasants from

their holdings at their will and pleasure. An appeal to the courts was

of no avail: the lord in reply had only to oppose his right over the

plaintiff's person, and to refuse to go into the subject-matter of the

case[35]. Nor could the villain have any help as to the amount and the

nature of his services[36]; the King's Courts will not examine any

complaint in this respect, and may sometimes go so far as to explain

that it is no business of theirs to interfere between the lord and his

man[37]. In fact any attempt on the part of the dependant to assert

civil rights as to his master will be met and defeated by the 'exceptio

villenagii[38].' The state refuses to regulate the position of this

class on the land, and therefore there can be no question about any

legal 'ascription' to the soil. Even as to his person, the villain was

liable to be punished and put into prison by the lord, if the punishment

inflicted did not amount to loss of life or injury to his body[39]. The

extant Plea Rolls and other judicial records are full of allusions to

all these rights of the lord and disabilities of the villain, and it

must be taken into account that only an infinitely small part of the

actual cases can have left any trace in such records, as it was almost

hopeless to bring them to the notice of the Royal Courts[40].

[Identification with Roman slavery.]

It is not strange that in view of such disabilities Bracton thought

himself entitled to assume equality of condition between the English

villain and the Roman slave, and to use the terms _servus_, _villanus_,

and _nativus_ indiscriminately. The characteristics of slavery are

copied by him from Azo's commentary on the Institutes, as material for a

description of the English bondmen, and he distinguishes them carefully

even from the Roman _adscripticii_ or _coloni_ of base condition. The

villains are protected in some measure against their lord in criminal

law; they cannot be slain or maimed at pleasure; but such protection is

also afforded to slaves in the later law of the Empire, and in fact it

is based in Bracton on the text of the Institutes given by Azo, which in

its turn is simply a summary of enactments made by Hadrian and Antonine.

The minor law books of the thirteenth century follow Bracton in this

identification of villainage with slavery. Although this identification

could not but exercise a decisive influence on the theory of the

subject, it must be borne in mind that it did not originate in a wanton

attempt to bring together in the books dissimilar facts from dissimilar

ages. On the contrary, it came into the books because practice had

paved the way for it. Bracton was enabled to state it because he did not

see much difference between the definitions of Azo and the principles of

Common Law, as they had been established by his masters Martin of

Pateshull and William Raleigh. He was wrong, as will be shown by-and-by,

but certainly he had facts to lean upon, and his theory cannot be

dismissed on the ground of his having simply copied it from a

foreigner's treatise.

[Villains in gross and villains regardant.]

Most modern writers on the subject have laid stress upon a difference

between _villains regardant_ and _villains in gross_, said to be found

in the law books[41]. It has been taken to denote two degrees of

servitude--the predial dependence of a _colonus_ and the personal

dependence of a true slave. The villain _regardant_ was (it is said) a

villain who laboured under disabilities in relation to his lord only,

the villain in gross possessed none of the qualities of a freeman. One

sub-division would illustrate the debasement of freemen who had lost

their own land, while the other would present the survival of ancient

slavery.

In opposition to these notions I cannot help thinking that Hallam was

quite right in saying: 'In the condition of these (villains regardant

and villains in gross), whatever has been said by some writers, I can

find no manner of difference; the distinction was merely technical, and

affected only the mode of pleading. The term _in gross_ is appropriated

in our legal language to property held absolutely and without reference

to any other. Thus it is applied to rights of advowson or of common,

when possessed simply, and not as incident to any particular lands. And

there can be no doubt that it was used in the same sense for the

possession of a villein.' (Middle Ages, iii. 173; cf. note XIV.)

Hallam's statement did not carry conviction with it however, and as the

question is of considerable importance in itself and its discussion will

incidentally help to bring out one of the chief points about villainage,

I may be allowed to go into it at some length.

[Littleton's view.]

Matters would be greatly simplified if the distinction could really be

traced through the authorities. In point of fact it turns out to be a

late one. We may start from Coke in tracing back its history. His

commentary upon Littleton certainly has a passage which shows that he

came across opinions implying a difference of status between villains

regardant and villains in gross. He speaks of the right of the villain

to pursue every kind of action against every person except his lord, and

adds: 'there is no diversity herein, whether he be a villain regardant

or in gross, although some have said to the contrary[42]' (Co. Lit. 123

b). Littleton himself treats of the terms in several sections, and it is

clear that he never takes them to indicate status or define variation of

condition. As has been pointed out by Hallam, he uses them only in

connexion with a diversity in title, and a consequent diversity in the

mode of pleading. If the lord has a deed or a recorded confession to

prove a man's bondage, he may implead him as his villain in gross; if

the lord has to rely upon prescription, he has to point out the manor to

which the party and his ancestors have been regardant, have belonged,

time out of mind[43]. As it is a question of title and not of condition,

Littleton currently uses the mere 'villain' without any qualification,

whereas such a qualification could not be dispensed with, if there had

been really two different classes of villains. Last but not least, any

thought of a diversity of condition is precluded by the fact, that

Littleton assumes the transfer from one sub-division to the other to

depend entirely on the free will of the lord (sections 175, 181, 182,

185). But still, although even Littleton does not countenance the

classification I am now analysing, it seems to me that some of his

remarks may have given origin to the prevalent misconception on the

subject.

[The 'villain regardant' of the Year Books.]

Let us take up the Year Books, which, even in their present state,

afford such an inestimable source of information for the history of

legal conceptions in the fourteenth and fifteenth centuries[44]. An

examination of the reports in the age of the Edwards will show at once

that the terms _regardant_ and _in gross_ are used, or rather come into

use, in the fourteenth century as definitions of the mode of pleading in

particular cases. They are suggested by difference in title, but they do

not coincide with it, and any attempt to make them coincide must

certainly lead to misapprehension. I mean this--the term 'villain

regardant' applied to a man does not imply that the person in question

has any status superior to that of the 'villain in gross,' and it does

not imply that the lord has acquired a title to him by some particular

mode of acquisition, e.g. by prescription as contrasted with grant or

confession; it simply implies that for the purpose of the matter then in

hand, for the purpose of the case that is then being argued, the lord is

asserting and hoping to prove a title to the villain by relying on a

title to a manor with which the villain is or has been connected--title

it must be remembered is one thing, proof of title is another. As the

contrast is based on pleading and not on title, one and the same person

may be taken and described in one case as a villain regardant to a

manor, and in another as a villain in gross. And now for the proof.

The expression 'regardant' never occurs in the pleadings at all, but

'regardant to a manor' is used often. From Edward III's time it is used

quite as a matter of course in the formula of the 'exceptio' or special

plea of villainage[45]. That is, if the defendant pleaded in bar of an

action that the plaintiff was his bondman he generally said, I am not

bound to answer A, because he is my villain and I am seised of him as of

my villain as regardant to my manor of C. Of course there are other

cases when the term is employed, but the plea in bar is by far the most

common one and may stand for a test. This manner of pleading is only

coming gradually into use in the fourteenth century, and we actually see

how it is taking shape and spreading. As a rule the Year Books of Edward

I's time have not got it. The defendant puts in his plea unqualified.

'He ought not to be answered because he is our villain' (Y.B. 21/22

Edward I, p. 166, ed. Horwood). There is a case in 1313 when a

preliminary skirmish between the counsel on either side took place as to

the sufficiency of the defendant's plea in bar, the plaintiff contending

that it was not precise enough. Here, if any where, we should expect

the term '_regardant_,' but it is not forthcoming[46]. What is more, and

what ought to have prevented any mistake, the official records of trials

on the Plea Rolls up to Edward II always use the plain assertion,

'villanus ... et tenet in villenagio[47].' The practice of naming the

manor to which a villain belonged begins however to come in during the

reign of Edward II, and the terminology is by no means settled at the

outset; expressions are often used as equivalent to 'regardant' which

could hardly have misled later antiquaries as to the meaning of the

qualification[48]. In a case of 1322, for instance, we have 'within the

manor' where we should expect to find 'regardant to the manor[49].' This

would be very nearly equivalent to the Latin formula adopted by the Plea

Rolls, which is simply _ut de manerio_[50]. Every now and then cases

occur which gradually settle the terminology, because the weight of

legal argumentation in them is made to turn on the fact that a

particular person was connected with a particular manor and not with

another. A case from 1317 is well in point. B.P. the defendant excepts

against the plaintiff T.A. on the ground of villainage (_qil est nostre

vileyn_, and nothing else). The plaintiff replies that he was

enfranchised by being suffered to plead in an assize of mort d'ancestor

against B.P.'s grandmother. By this the defendant's counsel is driven to

maintain that his client's right against T.A. descended not from his

grandmother but from his grandfather, who was seised of the manor of H.

to which T.A. belonged as a villain[51]. The connexion with the manor is

adduced to show from what quarter the right to the villain had

descended, and, of course, implies nothing as to any peculiarity of this

villain's status, or as to the kind of title, the mode of acquiring

rights, upon which the lord relies--it was ground common to both parties

that if the lord had any rights at all he acquired them by inheritance.

[Prior of the Hospitalers _v._ Thomas Barentyn and Ralph Crips.]

Another case seems even more interesting. It dates from 1355, that is

from a time when the usual terminology had already become fixed. It

arose under that celebrated Statute of Labourers which played such a

prominent part in the social history of the fourteenth century. One of

the difficulties in working the statute came from the fact that it had

to recognise two different sets of relations between the employer and

the workman. The statute dealt with the contract between master and

servant, but it did not do away with the dependence of the villain on

the lord, and in case of conflict it gave precedence to this latter

claim; a lord had the right to withdraw his villain from a stranger's

service. Such cross influences could not but occasion a great deal of

confusion, and our case gives a good instance of it. Thomas Barentyn has

reclaimed Ralph Crips from the service of the Prior of the Hospitalers,

and the employer sues in consequence both his former servant and

Barentyn. This last answers, that the servant in question is his villain

regardant to the manor of C. The plaintiff's counsel maintains that he

could not have been regardant to the manor, as he was going about at

large at his free will and as a free man; for this reason A. the former

owner of the manor was never seised of him, and not being seised could

not transfer the seisin to the present owner, although he transferred

the manor. For the defendant it is pleaded, that going about freely is

no enfranchisement, that by the gift of the manor every right connected

with the manor was also conferred and that consequently the new lord

could at any moment lay hands on his man, as the former lord could have

done in his time. Ultimately the plaintiff offers to join issue on the

question, whether the servant had been a villain regardant to the manor

of C. or not. The defendant asserts, rather late in the day, that even

if the person in question was not a villain regardant to the manor of C.

the mere fact of his being a villain in gross would entitle his lord to

call him away. This attempt to start on a new line is not allowed by the

Court because the claim had originally been traversed on the ground of

the connexion with the manor[52].

The peculiarity of the case is that a third person has an interest to

prove that the man claimed as villain had been as a free man. Usually

there were but two parties in the contest about status; the lord pulling

one way and the person claimed pulling the other way, but, through the

influence of the Statute of Labourers, in our case lord and labourer

were at one against a third party, the labourer's employer. The

acknowledgment of villainage by the servant did not settle the question,

because, though binding for the future, it was not sufficient to show

that villainage had existed in the past, that is at the time when the

contract of hire and service was broken through the interference of the

lord. Everything depended on the settlement of one question--was the

lord seised at the time, or not? Both parties agree that the lord was

not actually seised of the person, both agree that he was seised of the

manor, and both suppose that if the person had as a matter of fact been

attached to the manor it would have amounted to a seisin of the person.

And so the contention is shifted to this point: can a man be claimed

through the medium of a manor, if he has not been actually living,

working and serving in it? The court assumes the possibility, and so the

parties appeal to the country to decide whether in point of fact Ralph

Crips the shepherd had been in legal if not in actual connexion with the

manor, i.e. could be traced to it personally or through his relatives.

[Results as to 'villain regardant' and 'villain in gross.']

The case is interesting in many ways. It shows that the same man could

be according to the point of view considered both as a villain in regard

to a manor, and as a villain in gross. The relative character of the

classification is thus illustrated as well as its importance for

practical purposes. The transmission of a manor is taken to include the

persons engaged in the cultivation of its soil, and even those whose

ancestors have been engaged in such cultivation, and who have no special

plea for severing the connexion.

As to the outcome of the whole inquiry, we may, it seems to me, safely

establish the following points: 1. The terms 'regardant' and 'in gross'

have nothing to do with a legal distinction of status. 2. They come up

in connexion with the modes of proof and pleading during the fourteenth

century. 3. They may apply to the same person from different points of

view. 4. 'Villain in gross' means a villain without further

qualification; 'villain regardant to a manor' means villain by reference

to a manor. 5. The connexion with a manor, though only a matter of fact

and not binding the lord in any way, might yet be legally serviceable to

him, as a means of establishing and proving his rights over the person

he claimed.

[The astrier.]

I need hardly mention, after what has been said, that there is no such

thing as this distinction in the thirteenth century law books. I must

not omit, however, to refer to one expression which may be taken to

stand in the place of the later 'villain regardant to a manor.' Britton

(ii. 55) gives the formula of the special plea of villainage to the

assize of mort d'ancestor in the following words: 'Ou il poie dire qe il

est soen vileyn et soen astrier et demourrant en son villenage.' There

can be no doubt that residence on the lord's land is meant, and the term

_astrier_ leads even further, it implies residence at a particular

hearth or in a particular house. Fleta gives the assize of novel

disseisin to those who have been a long time away from their villain

hearth[53] ('extra astrum suum villanum,' p. 217). If the term 'astrier'

were restricted to villains it would have proved a great deal more than

the 'villain regardant' usually relied upon. But it is of very wide

application. Britton uses it of free men entitled to rights of common by

reason of tenements they hold in a township (i. 392). Bracton speaks of

the case of a nephew coming into an inheritance in preference to the

uncle because he had been living at the same hearth or in the same hall

(in _atrio_ or _astro_) with the former owner[54], and in such or a

similar sense the word appears to have been usually employed by

lawyers[55]. On the other hand, if we look in Bracton's treatise for

parallel passages to those quoted from the Fleta and Britton about the

villain astrier, we find only a reference to the fact that the person in

question was a serf and holding in villainage and under the sway of a

lord[56], and so there is nothing to denote special condition in the

_astrier_. When the term occurs in connexion with villainage it serves

to show that a person was not only a bondman born, but actually living

in the power of his lord, and not in a state of liberty. The allusion to

the hearth cannot possibly mean that the man sits in his own homestead,

because only a few of the villains could have been holders of separate

homesteads, and so it must mean that he was sitting in a homestead

belonging to his lord, which is quite in keeping with the application of

the term in the case of inheritance.

[The territorial hold of villainage.]

The facts we have been examining certainly suppose that in the villains

we have chiefly to do with peasants tilling the earth and dependent on

manorial organisation. They disclose the working of one element which is

not to be simply deduced from the idea of personal dependence.

It may be called subjection to territorial power. The possession of a

manor carries the possession of cultivators with it. It is always

important to decide whether a bondman is in the seisin of his lord or

not, and the chief means to show it is to trace his connexion with the

territorial lordship. The interposition of the manor in the relation

between master and man is, of course, a striking feature and it gives a

very characteristic turn to medieval servitude. But if it is not

consistent with the general theory laid down in the thirteenth century

law books, it does not lead to anything like the Roman _colonatus_. The

serf is not placed on a particular plot of land to do definite services

under the protection of the State. He may be shifted from one plot

within the jurisdiction of his lord to another, from one area of

jurisdiction to another, from rural labour to industrial work or house

work, from one set of customs and services to another. He is not

protected by his predial connexion against his lord, and in fact such

predial connexion is utilised to hold and bind him to his lord. We may

say, that the unfree peasant of English feudalism was legally a personal

dependant, but that his personal dependence was enforced through

territorial lordship.

Villainage in England: Essays in English Mediaeval History · 第 1 / 12 章