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 cla.s.ses as a rule, all the people in the same cla.s.s 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_ cl.u.s.tered--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 part.i.tion 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 pa.s.sed 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. .h.i.therto 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 cl.u.s.ter 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 repet.i.tion 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 inst.i.tutions 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 const.i.tutional 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 const.i.tutional ideas were connected with medieval facts, and the share that the German element has had in the development of inst.i.tutions and cla.s.ses. 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 cla.s.ses, which ever, as it were, loom up behind the pageant of political inst.i.tutions and parties. Na.s.se 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 const.i.tutive 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 doc.u.ments 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 cla.s.ses 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 doc.u.ments 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. .h.i.therto 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_, _villa.n.u.s_, 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 ill.u.s.trated by the early use of _nativa_, nieve, 'as a feminine to _villa.n.u.s_.'

[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 a.s.sert 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 cla.s.s 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 ent.i.tled to a.s.sume equality of condition between the English villain and the Roman slave, and to use the terms _servus_, _villa.n.u.s_, and _nativus_ indiscriminately. The characteristics of slavery are copied by him from Azo's commentary on the Inst.i.tutes, 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 Inst.i.tutes 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 ill.u.s.trate the debas.e.m.e.nt 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 c.o.ke in tracing back its history. His commentary upon Littleton certainly has a pa.s.sage 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 t.i.tle, 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 t.i.tle 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 cla.s.ses of villains. Last but not least, any thought of a diversity of condition is precluded by the fact, that Littleton a.s.sumes 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 cla.s.sification I am now a.n.a.lysing, 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 t.i.tle, 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 t.i.tle 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 a.s.serting and hoping to prove a t.i.tle to the villain by relying on a t.i.tle to a manor with which the villain is or has been connected--t.i.tle it must be remembered is one thing, proof of t.i.tle is another. As the contrast is based on pleading and not on t.i.tle, 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 a.s.sertion, 'villa.n.u.s ... 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 a.s.size 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 t.i.tle, 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 enfranchis.e.m.e.nt, 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 a.s.serts, 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 ent.i.tle 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 a.s.sumes 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.