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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.