LEGAL ASPECT OF VILLAINAGE. CONCLUSIONS.
[Method of investigation.]
I have been trying to make out what the theories of the lawyers were
with regard to villainage in its divers ramifications. Were we to
consider this legal part of the subject merely as a sort of crust
superposed artificially over the reality of social facts, we should have
to break through the crust in order to get at the reality. But, of
course, the law regulating social conditions is not merely an external
superstructure, but as to social facts is both an influence and a
consequence. In one sense it is a most valuable product of the forces at
play in the history of society, most valuable just by reason of the
requirements of its formalism and of those theoretical tendencies which
give a very definite even if a somewhat distorted shape to the social
processes which come within its sphere of action.
The formal character of legal theory is not only important because it
puts things into order and shape; it suggests a peculiar and efficient
method of treating the historical questions connected with law. The
legal intellect is by its calling and nature always engaged in analysing
complex cases into constitutive elements, and bringing these elements
under the direction of principles. It is constantly struggling with the
confusing variety of life, and from the historian's point of view it is
most interesting when it succumbs in the struggle. There is no law,
however subtle and comprehensive, which does not exhibit on its logical
surface seams and scars, testifying to the incomplete fusing together of
doctrines that cannot be brought under the cover of one principle. And
so a dialectic examination of legal forms which makes manifest the
contradictions and confused notions they contain actually helps us to an
insight into the historical stratification of ideas and facts, a
stratification which cannot be abolished however much lawyers may crave
for unity and logic.
[Uncertainty and contradictions of legal theory.]
In the particular case under discussion medieval law is especially rich
in such historical clues. The law writers are trying hard to give a
construction of villainage on the basis of the Roman doctrine of
slavery, but their fabric gives way at every point. It would be hardly a
fair description to say that we find many survivals of an older state of
things and many indications of a new development. Everything seems in a
state of vacillation and fermentation during the thirteenth century. As
to the origin of the servile status the law of bastards gets inverted;
in the case of matrimony the father-rule is driving the mother-rule from
the ground; the influence of prescription is admitted by some lawyers
and rejected by others. As to the means whereby persons may issue out of
that condition, the views of Glanville and Bracton are diametrically
opposed, and there are still traces in practice of the notion that a
villain cannot buy his freedom and that he cannot be manumitted by the
lord himself in regard to third persons. In their treatment of services
in their reference to status the courts apply the two different tests of
certainty and of kind. In their treatment of tenure they still hesitate
between a complete denial of protection to villainage and the
recognition of it as a mode of holding which is protected by legal
remedies. And even when the chief lines are definitely drawn they only
disclose fundamental contradictions in all their crudeness.
In civil law, villains are disabled against their lords but evenly
matched against strangers; even against a lord legal protection is
lingering in the form of an action upon covenant and in the notion that
the villain's wainage should be secure. In criminal and in police law
villains are treated substantially as free persons: they have even a
share, although a subordinate one, in the organisation of justice. The
procedure in questions of status is characterised by outrageous
privileges given to the lord against a man in 'a villain nest,' and by
distinct favour shown to those out of the immediate range of action of
the lord. The law is quite as much against giving facilities to prove a
man's servitude as it is against granting that man any rights when once
his servitude has been established. The reconciliation of all these
contradictions and anomalies cannot be attempted on dogmatic grounds.
The law of villainage must not be constructed either on the assumption
of slavery, or on that of liberty, or on that of _colonatus_ or
ascription. It contains elements from each of these three conditions,
and it must be explained historically.
[Influence of lawyers.]
The material hitherto collected and discussed enables us to distinguish
different layers in its formation. To begin with, the influence of
lawyers must be taken into account. This is at once to be seen in the
treatment of distinctions and divisions. The Common Law, as it was
forming itself in the King's Court, certainly went far to smoothe down
the peculiarities of local custom. Even when such peculiarities were
legally recognised, as in the case of ancient demesne, the control and
still more the example of the Common Law Courts was making for
simplification and reducing them more or less to a generally accepted
standard. The influence of the lawyers was exactly similar in regard to
subdivisions on the vertical plane (if I may use the expression): for
these varieties of dependence get fused into general servitude, and in
this way classes widely different in their historical development are
brought together under the same name. The other side of this process of
simplification is shown where legal theory hardens and deepens the
divisions it acknowledges. In this way the chasm between liberty and
servitude increases as the notion of servitude gets broader. In order to
get sharp boundaries and clear definitions to go by, the lawyers are
actually driven to drop such traits of legal relations as are difficult
to manage with precision, however great their material importance, and
to give their whole attention to facts capable of being treated clearly.
This tendency may account for the ultimate victory of the quantitative
test of servitude over the qualitative one, or to put it more plainly,
of the test of certainty of services over the discussion of kind of
services. Altogether the tendency towards an artificial crystallisation
of the law cannot be overlooked.
[Roman law, Norman law, and royal jurisdiction.]
In the work of simplifying conditions artificially the lawyers had
several strong reagents at their disposal. The mighty influence of Roman
law has been often noticed, and there can be no doubt that it was
brought to bear on our subject to the prejudice of the peasantry and to
the extinction of their independent rights. It would not have been so
strong if many features of the vernacular law had not been brought half
way to meet it. Norman rules, it is well known, exercised a very potent
action on the forms of procedure[245]; but the substantive law of status
was treated very differently in Normandy and in England, and it is not
the influx of Norman notions which is important in our case, but the
impetus given by them to the development of the King's Courts. This
development, though connected with the practice of the Duchy, cannot be
described simply or primarily as Norman. Once the leaven had been
communicated, English lawyers did their own work with great independence
as well as ingenuity of thought, and the decision of the King's Court
was certainly a great force. I need not point out again to what extent
the law was fashioned by the writ procedure, but I would here recall to
attention the main fact, that the opposition between 'free' and 'unfree'
rested chiefly on the point of being protected or not being protected by
the jurisdiction of the King's Court.
[Social bias of legal theories.]
If we examine the action of lawyers as a whole, in order to trace out,
as it were, its social bias, we must come to the conclusion that it was
exercised first in one direction and then in the opposite one. The
refusal of jurisdiction may stand as the central fact in the movement in
favour of servitude, although that movement may be illustrated almost in
every department, even if one omits to take into account what may be
mere instances of bad temper or gross partiality. But the wave begins to
rise high in favour of liberty even in the thirteenth century. It does
not need great perspicuity to notice that, apart from any progress in
morals or ideas, apart from any growth of humanitarian notions, the law
was carried in this direction by that development of the State which
lays a claim to and upon its citizens, and by that development of social
intercourse which substitutes agreement for bondage. Is it strange that
the social evolution, as observed in this particular curve, does not
appear as a continuous _crescendo_, but as a wavy motion? I do not think
it can be strange, if one reflects that the period under discussion
embraces both the growth and the decay of feudalism, embraces, that is,
the growth of the principle of territorial power on the ruins of the
tribal system and also the disappearance of that principle before the
growing influence of the State.
[Influence of conquest.]
Indirectly we have had to consider the influence of feudalism, as it was
transmitted through the action of its lawyers. But it may be viewed in
its direct consequences, which are as manifest as they are important. In
England, feudalism in its definite shape is bound up with conquest[246],
and it is well known that, though very much hampered on the political
side by the royal power, it was exceptionally complete on the side of
private law by reason of its sudden, artificial, and enforced
introduction. One of the most important results of conquest from this
point of view was certainly the systematic way in which the subjection
of the peasantry was worked out. If we look for comparison to France as
the next neighbour of England and a country which has influenced
England, we shall find the same elements at work, but they combine in a
variety of modes according to provincial and local peculiarities.
Although the political power of the French baron is so much greater than
that of an English lord, the _roturier_ often keeps his distance from
the serf better than was the case in England. In France everything
depends upon the changing equilibrium of local forces and circumstances.
In England the Norman Conquest produced a compact estate of aristocracy
instead of the magnates of the continent, each of whom was strong or
weak according to the circumstances of his own particular case; it
produced Common Law and the King's Courts of Common Law; and it reduced
the peasantry to something like uniform condition by surrounding the
_liberi et legales homines_ with every kind of privilege. The national
colouring given by the _Dialogus de Scaccario_ to the social question of
the time is not without meaning in this light:--the peasants may be
regarded as the remnant of a conquered race, or as the issue of rebels
who have forfeited their rights.
[English feudalism.]
The feudal system once established produced certain effects quite apart
from the Conquest, effects which flowed from its own inherent
properties. The Conquest had cast free and unfree peasantry together
into the one mould of villainage; feudalism prevented villainage from
lapsing into slavery. I have shown in detail how the manor gives a
peculiar turn to personal subjection. Its action is perceivable in the
treatment of the origin of the servile status. The villain, however near
being a chattel, cannot be devised by will because he is considered as
an annex to the free tenement of the lord. The connexion with a manor
becomes the chief means of establishing and proving seisin of the
villain. On the other hand, in the trial of _status_, manorial
organisation led to the sharp distinction between persons in the power
of the lord and out of it. This fact touches the very essence of the
case. The more powerful the manor became, the less possible was it to
work out subjection on the lines of personal slavery. Without entering
into the economic part of the question for the present, merely from the
legal point of view it was a necessary consequence of the rise of a
local and territorial power that the working people under its sway were
subjected by means of its territorial organisation and within its
limited sphere of local action. Of course, the State upheld some of the
lord's rights even outside the limits of the manor, but these were only
a pale reflection of what took place within the manor, and they were
more difficult to enforce in proportion as the barriers between the
manors rose higher; it became very difficult for one lord to reclaim
runaways who were lying within the manor of another lord.
[Survivals of pre-feudal condition.]
If we remove those strata of the law of villainage which owe their
origin to the action of the feudal system and to the action of the
State, which rises on the ruins of the feudal system, we come upon
remnants of the pre-feudal condition. They are by no means few or
unimportant, and it is rather a wonder that so much should be preserved
notwithstanding the systematic work of conquest, feudalism, and State.
When I speak of pre-feudal condition I do not mean to say, of course,
that feudalism had not been in the course of formation before the Norman
Conquest. I merely wish to oppose a social order grounded on feudalism
to a social order which was only preparing for it and developing on a
different basis. The Conquest brought together the free and unfree. Our
survivals of the state of things before the Conquest group themselves
naturally in one direction, they are manifestations of the free element
which went into the constitution of villainage. It is not strange that
it should be so, because the servile element predominated in those parts
of the law which had got the upper hand and the official recognition. A
trait which goes further than the accepted law in the direction of
slavery is the difficulties which are put by Glanville in the way of
manumission. His statement practically amounts to a denial of the
possibility of manumission, and such a denial we cannot accept. His way
of treating the question may possibly be explained by old notions as to
the inability of a master to put a slave by a mere act of his will on
the same level with free men.
[Elements of freedom.]
However this may be, our survivals arrange themselves with this single
possible exception in the direction of freedom. Perhaps such facts as
the villain's capacity to take legal action against third persons, and
his position in the criminal and police law, ought not to be called
survivals. They are certain sides of the subject. They are indissolubly
allied to such features of the civil law as the occasional recognition
of villainage as a protected tenure, and the villain's admitted standing
against the lord when the lord had bound himself by covenant. In the
light of these facts villainage assumes an entirely different aspect
from that which legal theory tries to give it. Procedural disability
comes to the fore instead of personal debasement. A villain is to a
great extent in the power of his lord, not because he is his chattel,
but because the courts refuse him an action against the lord. He may
have rights recognised by morality and by custom, but he has no means to
enforce them; and he has no means to enforce them because feudalism
disables the State and prevents it from interfering. The political root
of the whole growth becomes apparent, and it is quite clear, on the one
hand, that liberation will depend to a great extent on the strengthening
of the State; and, on the other hand, that one must look for the origins
of enslavement to the political conditions before and after the
Conquest.
One undoubtedly encounters difficulties in tracing and grouping facts
with regard to those elements of freedom which appear in the law of
villainage. Sometimes it may not be easy to ascertain whether a
particular trait must be connected with legal progress making towards
modern times, or with the remnants of archaic institutions. As a matter
of fact, however, it will be found that, save in very few cases, we
possess indications to show us which way we ought to look.
Another difficulty arises from the fact that the law of this period was
fashioned by kings of French origin and lawyers of Norman training.
What share is to be assigned to their formal influence? and what share
comes from that old stock of ideas and facts which they could not or
would not destroy? We may hesitate as to details in this respect. It is
possible that the famous paragraph of the so-called Laws of William the
Conqueror, prescribing in general terms that peasants ought not to be
taken from the land or subjected to exactions[247], is an insertion of
the Norman period, although the great majority of these Laws are Saxon
gleanings. It is likely that the notion of _wainage_ was worked out
under the influence of Norman ideas; the name seems to show it, and
perhaps yet more the fact that the plough was specially privileged in
the duchy. It is to be assumed that the king, not because he was a
Norman but because he was a king, was interested in the welfare of
subjects on whose back the whole structure of his realm was resting. But
the influence of the strangers went broadly against the peasantry, and
it has been repeatedly shown that Norman lawyers were prompted by
anything but a mild spirit towards them. The _Dialogus de Scaccario_ is
very instructive on this point, because it was written by a royal
officer who was likely to be more impartial than the feudatories or any
one who wrote in their interest would be, and yet it makes out that
villains are mere chattels of their lord, and treats them throughout
with the greatest contempt. And so, speaking generally, it is to the
times before the Conquest that the stock of liberty and legal
independence inherent in villainage must be traced, even if we draw
inferences merely on the strength of the material found on this side of
the Conquest. And when we come to Saxon evidence, we shall see how
intimately the condition of the ceorl connects itself with the state of
the villain along the main lines and in detail.
[Ancient demesne.]
The case of ancient demesne is especially interesting in this light. It
presents, as it were, an earlier and less perfect crystallisation of
society on a feudal basis than the manorial system of Common Law. It
steps in between the Saxon _soc_ and _tun_ on the one hand, and the
manor on the other. It owes to the king's privilege its existence as an
exception. The procedure of its court is organised entirely on the old
pattern and quite out of keeping with feudal ideas, as will be shown
by-and-by. Treating of it only in so far as it illustrates the law of
status, it presents in separate existence the two classes which were
fused in the system of the Common Law; villain socmen are carefully
distinguished from the villains, and the two groups are treated
differently in every way. A most interesting fact, and one to be taken
up hereafter, is the way of treating the privileged group as the normal
one. Villain socmen are _the_ men of ancient demesne; villains are the
exception, they appear only on the lord's demesne, and seem very few, so
far as we can make a calculation of numbers. Villain socmen enjoy a
certainty of condition which becomes actual tenant-right when the manor
passes from the crown into a private lord's hand. As to its origin there
can be no doubt--ancient demesne is traced back to Saxon times in as
many words and by all our authorities.
[Clues as to the condition of Saxon peasantry.]
A careful analysis of the law of ancient demesne may even give us
valuable clues to the condition of the Saxon peasantry. The point just
noticed, namely, that the number of villain socmen is exceedingly large
and quite out of proportion to that of other tenants, gives indirect
testimony that the legal protection of the tenure was not due merely to
an influx of free owners deprived of their lands by conquest. This is
the explanation given by Bracton, but it is not sufficient to account
for the privileged position of almost all the tenants within the manor.
A considerable part of them surely held before the Conquest not as
owners and not freely, but as tenants by base services, and their fixity
of tenure is as important in the constitution of ancient demesne as is
the influx of free owners. If this latter cause contributed to keep up
the standard of this status, the former cause supplied that tradition of
certainty to which ancient demesne right constantly appeals.
Another point to be kept firmly in view is that the careful distinction
kept up on the ancient demesne between villain socmen and villains,
proves the law on this subject to have originated in the general
distribution of classes and rights during the Saxon period, and not in
the exceptional royal privilege which preserved it in later days; I
mean, that if certainty of condition had been granted to the tenantry
merely because it was royal tenantry, which is unlikely enough in
itself, the certainty would have extended to tenants of all sorts and
kinds. It did not, because it was derived from a general right of one
class of peasants to be protected at law, a right which did not in the
least preclude the lord from using his slaves as mere chattels.
And so I may conclude: an investigation into the legal aspect of
villainage discloses three elements in its complex structure. Legal
theory and political disabilities would fain make it all but slavery;
the manorial system ensures it something of the character of the Roman
_colonatus_; there is a stock of freedom in it which speaks of Saxon
tradition.