What is there in these words to show that the two sets were to be taken from different cla.s.ses? And does not the expression 'lawful,' extending to both sets, point to people who are 'worthy of their law,' that is to free men? The a.s.size of Clarendon and the const.i.tution of the tourn are especially interesting because they give a new bearing to an old inst.i.tution: both divisions of the population which they have in view appear in the ordinary hundred and county court, and in the 'law day' of the 'great' hundred inst.i.tuted for the view of frankpledge. In the ordinary court the lord, his steward, and the reeve, priest, and four men, interchange, according to the clear statement of Leg. Henrici I. c.

7, that is to say, the vill is to be represented either by the lord, or by his steward, or again by the six men just mentioned. They are not called out as representing different cla.s.ses and interests, but as representing the same territorial unity. If the landlord does not attend personally or by his personal representative, the steward, then six men from the township attend in his place. The question arises naturally, where is one to look for the small freeholders in the enactment? However much we may restrict their probable number, their existence cannot be simply denied or disregarded. It does not seem likely that they were treated as landlords (terrarum domini), and one can hardly escape the inference that they are included in the population of the township, which appears through the medium of the six hundredors: another hint that the cla.s.s division underlying the whole structure did not coincide with the feudal opposition between freeholder and villain. Again, in the great hundred for the view of frankpledge, which is distinguished from the ordinary hundred by fuller attendance, and not by any fundamental difference in const.i.tution, all men are to appear who are 'free and worthy of their wer and their wite[404]:' this expression seems an equivalent to the 'free and lawful' men of other cases, and at the same time it includes distinctly the great bulk of the villain population as personally free.

[Results as to hundredors.]

I have not been able, in the present instance, to keep clear of the evidence belonging to the intermediate period between the Saxon and the feudal arrangements of society; this deviation from the general rule, according to which such evidence is to be discussed separately and in connexion with the Conquest, was unavoidable in our case, because it is only in the light of the laws of Henry I that some important feudal facts can be understood. In a trial as to suit of court between the Abbot of Glas...o...b..ry and two lay lords, the defendants plead that they are bound to appear at the Abbot's hundred court personally or by attorney only on the two law-days, whereas for the judgment of thieves their freemen, their reeves and ministers have to attend in order to take part in the judgment[405]. It is clearly a case of subst.i.tution, like the one mentioned in Leg. Henrici, c. 7, and the point is, that the representatives of the fee are designated as reeves and freemen.

Altogether the two contradictory aspects in which the hundredors are made to appear can hardly be explained otherwise than on the a.s.sumption of a fluctuation between the conception of the hundred as of an a.s.sembly of freemen, and its treatment under the influence of feudal notions as to social divisions. In one sense the hundredors are villains: they come from the vill, represent the bulk of its population, which consists of villains, and are gradually put on a different footing from the greater people present. In another sense they are free men, and even treated as freeholders, because they form part of a communal inst.i.tution intended to include the free cla.s.s and to exclude the servile cla.s.s[406]. If society had been arranged consistently on the feudal basis, there would have been no room for the representation of the vill instead of the manor, for the representation of the vill now by the lord and now by a deputation of peasants, for a terminology which appears to confuse or else to neglect the distinction between free and servile holding. As it is, the intricate const.i.tution of the hundred, although largely modified and differentiated by later law, although cut up as it were by the feudal principle of territorial service, looks still in the main as an organisation based on the freedom of the ma.s.s of the people[407]. The free people had to attend virtually, if not actually, and a series of contradictions sprang up from the attempt to apply this principle to a legal state which had almost eliminated the notion of freedom in its treatment of peasantry on villain land. As in these feudal relations all stress lay on tenure and not on status, the manorial doc.u.ments seem to raise the hundredors almost or quite to the rank of freeholders, although in strict law they may have been villains. The net results seem to be: (1) that the administrative const.i.tution of hundred and county is derived from a social system which did not recognise the feudal opposition between freeholder and villain; (2) that we must look upon feudal villainage as representing to a large extent a population originally free; (3) that this original freedom was not simply one of personal status, but actually influenced the conception of tenure even in later days[408].

[Socmen.]

If in manorial doc.u.ments these 'hundredors' occupy as it were an ambiguous position, the same may be said of another and a very important cla.s.s--the _socmen_. The socage tenure has had a very curious terminological history. Everybody knows that it appears in Domesday as a local peculiarity of Danish districts; in modern law it came to be a general name for any freehold that was neither knight service, frankalmoign, nor grand sergeanty. It became in fact the normal and typical free tenure, and as such it was treated by the Act of Charles II abolishing military tenure. Long before this--even in the thirteenth century--'free socage' was the name of a freehold tenure fully protected by the King's Courts. Very great men occasionally held land in free socage (per liberum socagium); they even held of the King in chief by free socage, and the tenure had many advantages, since it was free from the burdensome incidents of wardship and marriage. But no one would have called these men socmen (sokemanni, socomanni). On the other hand, the socmen, free socmen, were to be found all over England and not in the Danish country only. It is of the tenure of these socmen that we have to speak now. In a trial of Edward the First's time the counsel distinguish three manners of persons--free men, villains, and socmen. These last are said to occupy an intermediate position, because they are as _statu liberi_ in regard to their lords[409]. The pa.s.sage occurs in a case relating to ancient demesne, but the statement is made quite broadly, and the term 'socmen' is used without any qualification. As there were many socmen outside the King's possessions on the land of lay and spiritual lords, such usage may be taken as proof that the position of all these people was more or less identical. And so in our inquiry as to the characteristic traits of socage generally we may start from the ancient demesne. Further, we see that the socman's tenure is distinguished from free tenure, socmen from freeholders. In the law books of the time the free but non-military tenure has to be characterised not merely as socage, but as _free_ socage: this fact will give us a second clue in a.n.a.lysing the condition.

[Charter and communal testimony.]

There are two leading features in ancient demesne socage: it is certain in tenure and service, and it is held by the custom of the manor and not by feoffment. The certainty of the tenure severs the cla.s.s of socmen from the villains, and is to be found as well in the case of socmen outside the crown demesne as in the case of socmen on the crown demesne.

What is to be said of the second trait? It seems especially worthy of notice, because it cannot be said to belong to freehold generally. As to its existence on ancient demesne land I have already had occasion to speak, and it can hardly be doubted. I will just recall to the reader's mind the fundamental facts: that the 'little writ of right' was to insure justice according to the custom of the manor, and that our doc.u.ments distinguish in as many words between the customary admittance of the socman and the feoffment of the freeholder. This means, that in case of litigation the one had warranty and charter to lean upon, while the other had to appeal to the communal testimony of his fellow-suitors in the court of the manor, and in later days to an entry on the court-roll. Freehold appeared as chartered land (book-land), while socage was in truth copyhold secured by communal custom[410]. The necessary surrender and admittance was performed in open court, and the presence of fellow-tenants was as much a requisite of it as the action of the lord or his steward.

If we look now to the socmen outside the ancient demesne, we shall find their condition so closely similar, that the doc.u.ments constantly confuse them with the tenants of the ancient demesne. The free men under soke in the east of England have best kept the tradition, but even their right is often treated as a mere variation of ancient demesne[411]. For this reason we should be fairly ent.i.tled, I think, to extend to them the notion of customary freehold. There is direct evidence in this respect.

In extents of manors socmen are often distinguished from freeholders[412]. True, as already said, that in the king's courts 'free socage' came to be regarded as one of the freehold tenures, and as such (when not on the ancient demesne) was protected by the same actions which protected knight-service and frankalmoign; but we have only here another proof of the imperfect harmony between legal theory and manorial administration. What serves in the manorial doc.u.ments to distinguish the 'socman' from the 'freeholder' is the fact that the former holds without charter[413]. We are naturally led to consider him as holding, at least originally, by ancient custom and communal testimony in the same sense as the socmen of ancient demesne. In most cases only the negative side, namely the absence of a charter, is mentioned, but there are entries which disclose the positive side, and speak of tenants or even free tenants holding without charter by ancient tenure[414]. It is to be added, that we find such people in central and western counties, that is outside of the Danelagh. In Domesday their predecessors were entered as villains, but their tenure is nevertheless not only a free but an ancient one.

[Bond socmen.]

It must also be added that it is not only free socmen that one finds outside the ancient demesne; bond socmen are mentioned as well. Now this seems strange at first sight, because the usual and settled terminology treats villain socage as a peculiarity of ancient demesne. My notion is that it is not 'bond' that qualifies the 'socmen,' but _vice versa_. To put it in a different way, the doc.u.ments had to name a cla.s.s which held by certain custom, although by base service, and they added the 'socman'

to qualify the 'bond' or the 'villain.'

Two cases from the Hundred Rolls may serve as an ill.u.s.tration of this not unimportant point. The vill of Soham in Cambridgeshire[415] was owned in 1279 partly by the King, partly by the Earl Marshall, and partly by the Bishop of Ely. There are two socmen holding from the King thirty acres each, fourteen socmen holding fifteen acres each, and twenty-six 'toftarii' possessed of small plots. No villains are mentioned, but the socmen are designated on the margin in a more definite way as bond socmen. The manor had been in the possession of the Crown at the time of the Conquest, and it is to be noticed, to begin with, that the chief population of the part which remained with the King appears as socmen--a good ill.u.s.tration of the principle that the special status did not originate when the manor was granted out by the Crown.

The sixteen peasants first mentioned are holders of virgates and half-virgates, and form as it were the original stock of the tenantry--it would be impossible to regard them as a later adjunct to the village. Their status is not a result of commutation--they are still performing agricultural work, and therefore _bond_ socmen. The Domesday Survey speaks only of villains and 'bordarii,' and it is quite clear that it calls villains the predecessors of the 'bond socmen' of the Hundred Rolls. And now let us examine the portion of the manor which had got into the hands of the Earl Marshall. We find there several _free socmen_ whose holdings are quite irregular in size: they pay rent, and are exempted from agricultural work. Then come five _bond socmen_, holding thirty acres each, and nine _bonds_ holding fifteen acres each: all these perform the same services as the corresponding people of the King's portion. And lastly come twenty-two tofters. Two facts are especially worth notice: the free socman appears by the side of the bond socman, and the opposition between them reduces itself to a difference between rentpaying people and labourers; the holdings of the rentpayers are broken up into irregular plots, while the labourers still remain bound up by the system of equalised portions. The second significant fact is, that the term 'socman,' which has evidently to be applied to the whole population except the tofters, has dropped out in regard to the half-virgate tenants of the Earl Marshall. If we had only the fragment relating to his nine bondmen, we might conclude perhaps that there was no certain tenure in the manor. The inference would have been false, but a good many inferences as to the social standing of the peasantry are based on no better foundation. In any case the most important part of the population of Soham, as far as it belonged to the king and to the earl, consisted of socmen who at the same time are called bondmen, and were called villains in Domesday.

Soham is ancient demesne. Let us now take Crowmarsh in Oxfordshire[416].

Two-thirds of it belonged to the Earl of Oxford in 1279, and one-third to the Lord de Valence. At the time of the Domesday Survey it was in the hands of Walter Giffard, and therefore not ancient demesne. On the land of the Earl of Oxford we find in 1279 nine _servi socomanni_ holding six virgates, there are a few cotters and a few free tenants besides; the remaining third is occupied by two 'tenentes per servicium socomannorum,' and by a certain number of cotters and free tenants. It can hardly be doubted that the opposition between _servi_ and _liberi_ is not based on the certainty of the tenure; the socmen hold as securely as the free tenants, but they are labourers, while these latter are exempted from the agricultural work of the village. The terms are used in the same way as the 'terra libera' and the 'terra operabilis' of the Glas...o...b..ry inquest.

[Servile duties of socmen and freeholders.]

I need not say that the socmen of ancient demesne, privileged villains as Bracton calls them, are sometimes subjected to very burdensome services and duties. Merchet is very common among them; it even happens that they have to fine for it at the will of the lord[417]. But all the incidents of base tenure are to be found also outside the ancient demesne in connexion with the cla.s.s under discussion. If we take the merchet we shall find that at Magna Tywa, Oxon[418], it is customary to give the steward a sword and four pence for licence to give away one's daughter within twenty miles in the neighbourhood; in Haneberg, Oxon[419], a spear and four pence are given in payment. The socmen of Peterborough Abbey[420] have to pay five shillings and four pence under the name of merchet as a fine for incontinence (the legerwite properly so-called), and there is besides a marriage payment (redempcio sanguinis) equal for socmen and villains. The same payment occurs in the land of Spalding Priory, Lincoln[421]. The same fact strikes us in regard to tallage and aids, i.e. the taxes which the lord had a right to raise from his subjects. In Stoke Ba.s.set, Oxon[422], the socmen are placed in this respect on the same footing with the villains. The Spalding Cartulary adds that their wainage is safe in any case[423]. On the lands of this priory the cla.s.ses of the peasantry are generally very near to each other, so that incidents and terms often get confused[424].

And not only socmen have to bear such impositions: we find them constantly in all shapes and gradations in connection with free tenantry. The small freeholder often takes part in rural work[425], sometimes he has to act as a kind of overseer[426], and in any case this base labour would not degrade him from his position[427]. Already in Bracton's day the learned thought that the term 'socage' was etymologically connected with the duty of ploughing:--a curious proof both of the rapidity with which past history had become unintelligible, and of the perfect compatibility of socage with labour services.

Merchet, heriot, and tallage occur even more often[428]. All such exactions testify to the fact that the conceptions of feudal law as to the servile character of particular services and payments were in a great measure artificial. Tallage, even arbitrary tallage, was but a tax after all, and did not detract from personal freedom or free tenure in this sense. Then heriot often occurs among free people in the old Saxon form of a surrender of horse and arms as well as in that of the best ox[429]. Merchet is especially interesting as ill.u.s.trating the fusion of different duties into one. It is the base payment _par excellence_, and often used in manorial doc.u.ments as a means to draw the line between free and unfree men[430]. Nevertheless free tenants are very often found to pay it[431]. In most cases they have only to fine in the case when their daughters leave the manor, and this, of course, has nothing degrading in it: the payment is made because the lord loses all claim as to the progeny of the woman who has left his dominion. But there is evidence besides to show that free tenants had often to pay in such a case to the hundred, and the lords had not always succeeded in dispossessing the hundred[432]. Such a fine probably developed out of a payment to the tribe or to a territorial community in the case when a woman severed herself from it. It had nothing servile in its origin. And still, if the doc.u.ments had not casually mentioned these instances, we should have been left without direct evidence as to a difference of origin in regard to merchet or gersum. Is it not fair to ask, whether the merchet of the villains themselves may not in some instances have come from a customary recompense paid originally to the community of the township into the rights of which the lord has entered? However this may be, one fact can certainly not be disputed: men entirely free in status and tenure were sometimes subjected to an exaction which both public opinion and legal theory considered as a badge of servitude.

[Feudal oppression in the direction of servitude.]

The pa.s.sage from one great cla.s.s of society to the other was rendered easy in this way by the variety of combinations in which the distinguishing features of both cla.s.ses appear. No wonder that we hear constantly of oppression which tended to subst.i.tute one form of subjection for another, and thus to lower the social standing of intermediate groups. The free socmen of Swaffham Prior, in Cambridgeshire[433], complain that they are made to bind sheaves while they did not do it before; they used to pay thirty-two pence for licence to marry a daughter, and to give a twofold rent on entering an inheritance, and now the lord fines them at will. One of the tenants of the Bishop of Lincoln[434] declares to the Hundred Roll Commissioners that his ancestors were free socmen and did service to the king for forty days at their own cost, whereas now the Bishop has appropriated the royal rights. The same grievances come from ancient demesne people.

In Weston, Bedfordshire[435], the tenantry complain of new exactions on the part of the lord; in King's Ripton[436], Hunts, merchet is introduced which was never paid before; in Collecot, Berks[437], the lord has simply dispossessed the socmen. In some instances the claims of the peasantry may have been exaggerated, but I think that in all probability the chances were rather against the subjected people than for them, and their grievances are represented in our doc.u.ments rather less than fairly[438].

[Law of Kent.]

In speaking of those cla.s.ses of peasants who were by no means treated as serfs to be exploited at will, I must not omit to mention one group which appears, not as a horizontal layer spread over England, but in the vertical cut, as it were. I mean the Kentish gavelkind tenantry. The Domesday Survey speaks of the population of this county quite in the same way as of the people of neighbouring shires; villains form the great bulk of it, socmen are not even mentioned, and to judge by such indications, we have here plain serfdom occupying the whole territory of the county. On the other hand the law of the thirteenth century puts the social standing of Kentish men in the most decided opposition to that of the surrounding people. The 'Consuetudines Kanciae,' the well-known list of special Kentish customs[439], is reported to have been drawn up during an eyre of John of Berwick in the twenty-first year of Edward I.

Be its origin what it may, we come across several of its rules at much earlier times[440], and they are always considered of immemorial custom.

The basis of Kentish social law is the a.s.sumption that every man born in the county is ent.i.tled to be considered as personally free, and the Common Law Courts recognised the notion to the extent of admitting the a.s.sertion that a person was born in Kent as a reply against the 'exceptio villenagii.' The contrast with other counties did not stop there. The law of tenure was as different as the law of status. It would be needless to enumerate all the points set forth as Kentish custom.

They show conclusively that the lord was anything but omnipotent in this county. Interference with the proprietary right of the peasantry is not even thought of; the tenants may even alienate their plots freely; the lord can only claim the accustomed rents and services; if the tenants are negligent in performing work or making payments, distress and forfeiture are awarded by the manorial court according to carefully graduated forms; wardship in case of minority goes to the kin and not to the lord, and heiresses cannot be forced to marry against their wish. As a case of independence the Kentish custom is quite complete, and manorial doc.u.ments show on every page that it was anything but a dead letter. The Rochester Custumal, the Black Book of St. Augustine, the customs of the Kentish possessions of Battle Abbey, the registers of Christ Church, Canterbury, all agree in showing the Kentish tenantry as a privileged one, both as to the quant.i.ty and as to the quality of their services[441]. And so the great bulk of the Kentish peasantry actually appears in the same general position as the free socmen of other counties, and sometimes they are even called by this name[442].

What is more, the law of Kent thus favourable to the peasantry connects itself distinctly with the ancient customs of Saxon ceorls: the quaint old English proverbs enrolled in it look like sayings which have kept it in the memory of generations before it was transmitted to writing. The peculiarities in the treatment of wardship, of dower, of inheritance, appear not only in opposition to the feudal treatment of all these subjects, but in close connexion with old Saxon usage. It would be very wrong, however, to consider the whole population of Kent as living under one law. As in the case of ancient demesne, there were different cla.s.ses on Kentish soil: tenants by knight-service and sergeanty on one side, villains on the other[443]. The custom of Kent holds good only for the tenantry which would have been called gavelmen in other places. It is a custom of gavelkind, of the rent-paying peasantry, the peasantry which pays _gafol_, and as such stands in opposition to the usages of those who hold their land by fork and flail[444]. The important point is that we may lay down as certain in this case what was only put forward hypothetically in the case of molmen and gavelmen in the rest of England: the freehold quality of rent-paying land is not due to commutation and innovation alone--it proceeds from a pre-feudal cla.s.sification of holdings which started from the contrast between rent and labour, and not from that between certain and uncertain tenure.

Again, the law of gavelkind, although not extending over the whole of Kent, belongs to so important and numerous a portion of the population, that, as in the case of ancient demesne, it comes to be considered as the typical custom of the county, and attracts all other variations of local usage into its sphere of influence. The Custumal published among the Statutes speaks of the personal freedom of all Kentish-men, although it has to concern itself specially with the gavelkind tenantry. The notion of villainage gets gradually eliminated from the soil of the province, although it was by no means absent from it in the beginning.

Thirteenth-century law evidently makes the contrast between Kent and adjoining shires more sharp than it ought to have been, if all the varieties within the county were taken into account. But, if it was possible from the legal standpoint to draw a hard and fast line between Kent on one side, Suss.e.x or Ess.e.x on the other, it is quite impossible, from the historian's point of view, to grant that social condition has developed in adjoining places out of entirely different elements, without gradations and intermediate shades. Is there the slightest doubt that the generalising jurisprudence of the thirteenth century went much too far in one direction, the generalising scribes of the eleventh century having gone too far in the other? Domesday does not recognise any substantial difference between the state of Kent and that of Suss.e.x; the courts of the thirteenth century admitted a complete diversity of custom, and neither one nor the other extreme can be taken as a true description of reality. The importance of the _custom of Kent_ can hardly be overrated: it shows conclusively what a mistake it would be to accept without criticism the usual generalising statement as to the different currents of social life in mediaeval England. It will hardly be doubted moreover, that the Kentish case proves that elements of freedom bequeathed by history but ignored by the Domesday Survey come to the fore in consequence of certain facts which remain more or less hidden from view and get recognised and protected in spite of feudalism.

If so, can the silence of Domesday or the absence of legal protection in the thirteenth century stand as sufficient proof against the admission of freedom as an important const.i.tutive element in the historical process leading to feudalism? Is it not more natural to infer that outside Kent there were kindred elements of freedom, kindred remnants of a free social order which never got adequate recognition in the Domesday terminology or left definite traces in the practice of the Royal courts?

[Peasant freeholders.]

One more subject remains to be touched upon, and it may be approached safely now that we have reviewed the several social groups on the border between freeholders and villains. It is this--to what extent can the existence of a cla.s.s of freeholders among the peasantry of feudal England be maintained? It has been made a test question in the controversy between the supporters of the free and those of the servile community, and it would seem, at first sight, on good ground. Stress has been laid on the fact, that such communities as are mentioned in Domesday and described in later doc.u.ments are (if we set aside the Danish counties) almost entirely peopled by villains, that free tenants increase in number through the agency of commutation and grants of demesne land, whereas they are extremely few immediately after Domesday, and that in this way there can be no talk of free village communities this side of the Conquest[445]. This view of the case may be considered as holding the field at the present moment: its chief argument has been briefly summarised by the sentence--the villains of Domesday are not the predecessors in t.i.tle of later freeholders[446]. I cannot help thinking that a good deal has to be modified in this estimate of the evidence.

Without touching the subject in all its bearings, I may say at once that I do not see sufficient reason to follow the testimony of Domesday very closely as to names of cla.s.ses. If we find in a place many free tenants mentioned in the Hundred Roll, and none but villains in Domesday, it would be wrong to infer that there were none but villains in the later sense at the time of the Survey, or that all the free tenements of the Hundred Rolls were of later creation than the Conquest. It would be especially dangerous to draw such an inference in a case where the freeholders of the thirteenth century are possessed of virgates, half-virgates, etc., and not of irregular plots of land. Such cases may possibly be explained by sweeping commutation, which emanc.i.p.ated the entire village at one stroke, instead of making way for the freehold by the gradual enfranchis.e.m.e.nt of plot after plot. But it is not likely that all the many instances can be referred to such sweeping emanc.i.p.ation. In the light of Kentish evidence, of free and villain socage, it is at least probable that the thirteenth-century freeholders were originally customary freeholders entered as villains in Domesday, and rising to freedom again in spite of the influence of feudalism. Such an a.s.sumption, even if only possible and hypothetical, would open the way for further proof and investigation on the lines of a decline of free village communities, instead of imposing a peremptory termination of the whole inquiry for the period after the Conquest. If the Domesday villains are in no case predecessors in t.i.tle of freeholders, this fact would go a long way to establish the serfdom of the village community for all the period after the Conquest, and we should have to rely only on earlier evidence to show anything else. Our case would be a hard one, because the earlier evidence is scanty, scattered, obscure, and one-sided. But if the villains of Domesday may be taken to include customary freeholders, then we may try to ill.u.s.trate our conceptions of the early free village by traits drawn from the life of the later period.

CHAPTER VII.

THE PEASANTRY OF THE FEUDAL AGE. CONCLUSIONS.

[Legal and manorial records.]

I have divided my a.n.a.lysis of the condition of the feudal peasantry into two parts according to a principle forcibly suggested, as I think, by the material at hand. The records of trials in the King's Court, and the doctrines of lawyers based on them, cannot be treated in the same way as the surveys compiled for the use of manorial administration. There is a marked difference between the two sets of doc.u.ments as to method and point of view. In the case of legal records a method of dialectic examination could be followed. Legal rules are always more or less connected between themselves, and the investigator has to find out, first, from the application of what principles they flow, and to find out, secondly, whether fundamental contradictions disclose a fusion of heterogeneous elements. The study of manorial doc.u.ments had to proceed by way of cla.s.sification, to establish in what broad cla.s.ses the local variations of terms and notions arrange themselves, and what variations of daily life these groups or cla.s.ses represent.

It is not strange, of course, that things should a.s.sume a somewhat different aspect according to the point of view from which they are described. Legal cla.s.sification need not go into details which may be very important for purposes of manorial administration; neither the size of the holdings nor the complex variations of services have to be looked to in cases where the law of status is concerned. Still it may be taken for granted that the distinctions and rules followed by the courts had to conform in a general way with matter-of-fact conditions. Lawyers naturally disregarded minute subdivisions, but their broad cla.s.ses were not invented at fancy; they took them from life as they did the few traits they chose from among many as tests for the purpose of laying down clear and convenient rules. A general conformity is apparent in every point. At the same time there is undoubtedly an opposition between the _curial_ (if I may use that term) and the _manorial_ treatment of status and tenure, which does not resolve itself into a difference between broad principle and details. Just because the lawyer has to keep to distinct rules, he will often be behind his age and sometimes in advance of it. His doctrine, once established, is slow to follow the fluctuations of husbandry and politics: while in both departments new facts are ever cropping up and gathering strength, which have to fight their way against the rigidity of jurisprudence before they are accepted by it. On the other hand, notions of old standing and tenacious tradition cannot be put away at once, so soon as some new departure has been taken by jurists; and even when they die out at common law such notions persist in local habits and practical life. For these reasons, which hold good more or less everywhere, and are especially conspicuous in mediaeval history, the general relation between legal and manorial doc.u.ments becomes especially important. It will widen and strengthen conclusions drawn from the a.n.a.lysis of legal theory. We may be sure to find in thirteenth-century doc.u.ments of practical administration the foundations of a system which prevailed at law in the fifteenth. And what is much more interesting, we may be sure to find in local customaries the traces of a system which had its day long before the thirteenth century, but was still lingering in broken remains.

[The will of the lord and the custom of the manor.]

Bracton defines villainage as a condition of men who do not know in the evening what work and how much they will have to perform next morning.

The corresponding tenure is entirely precarious and uncertain at law.

But these fundamental positions of legal doctrine we find opposed in daily life to the all-controlling rule of custom. The peasant knows exactly on what days he has to appear personally or by representative at ploughings and reapings, how many loads he is bound to carry, and how many eggs he is expected to bring at Easter[447]; in most cases he knows also what will be required from him when he inherits from his father or marries his daughter. This customary arrangement of duties does not find any expression in common law, and _vice versa_ the rule of common law dwindles down in daily life to a definition of power which may be exercised in exceptional cases. The opposition between our two sets of records is evidently connected in this case with their different way of treating facts.

[Movement towards free contract and money rents.]

Manorial extents and inquests give in themselves only a one-sided picture of mediaeval village life, because they describe it only from the point of view of the holding: people who do not own land are very seldom noticed, and among the population settled on the land only those persons are named who 'defend' the tenement in regard to the lord. Only the chief of the household appears; this is a matter of course. He may have many or few children, many or few women engaged on his plot: the extent will not make any difference in the description of the tenement and of its services. But although very incomplete in this important respect, manorial records allow us many a glimpse at the process which was preparing a great change in the law. Hired labourers are frequently mentioned in stewards' accounts, and the 'undersette' and 'levingmen'

and 'anelipemen[448]' of the extents correspond evidently to this fluctuating population of rural workmen and squatters gathering behind the screen of recognised peasant holders.

The very foundation of the mediaeval system, its organisation of work according to equalised holdings and around a manorial centre, is in course of time undermined by the process of commutation. Villains are released from ploughings and reapings, from carriage-duties and boon work by paying certain rents; they bargain with the lord for a surrender of his right of arbitrary taxation and arbitrary amercement; they take leases of houses, arable and meadows. This important movement is directly noticed by the law in so far as it takes the shape of an increase in the number of freeholders and of freehold tenements; charters and instruments of conveyance may be concerned with it. But the process is chiefly apparent in a standing contradiction with the law.

Legally an arrangement with a villain either ought not to bind the lord or else ought to destroy his power. Even in law books, however, the intermediate form of a binding covenant with the villain emerges, as we have seen, in opposition to the consistent theory. In practice the villains are constantly found possessed of 'soclands,' 'forlands,' and freeholds. The pa.s.sage from obligatory labour to proprietary rights is effected in this way without any sudden emanc.i.p.ation, by the gradual acc.u.mulation of facts which are not strictly legal and at the same time tend to become legal.

[Emanc.i.p.ation.]

Again, the Royal courts do not know anything about 'molmen,' 'gavelmen,'

or 'censuarii,' They keep to the plain distinction between free and bond. Nevertheless, all these groups exist in practice, and are constantly growing in consequence of commutation. The whole law of status gets transformed by their growth as the law of tenure gets transformed by the growth of leases. Molmen, though treated as villains by Royal courts, are already recognised as more 'free' than the villains by manorial juries. The existence of such groups testifies to something more than a precarious pa.s.sage from service to rent, namely to a change from servile subjection to a status closely resembling that of peasant freeholders, and actually leading up to it. In one word, our manorial records give ample notice of the growth of a system based on free contract and not on customary labour. But the old forms of tenure and service are still existent in law, and the contradiction involved in this fact is not merely a technical one: it lies at the root of the revolutionary movement at the close of the fourteenth century. In this manner facts were slowly paving the way towards a modification of the law. But now, turning from what is in the future, to what is in the past, let us try to collect those indications which throw light on the condition of things preceding feudal law and organisation.

[Contrast between labour and rent.]

The one-sided conception of feudal law builds up the entire structure of social divisions on the principle of the lord's will. Custom, however sacred, is not equivalent to actionable right, and a person who has nothing but custom to lean upon is supposed to be at the will and mercy of his lord and of base or servile condition. But we find even in the domain of legal doctrine other notions less convenient for the purpose of cla.s.sification, and more adapted to the practice of daily life.

Servile persons and servile land are known from the nature of the services to which they are subject. This test is applied in two directions: (1) regular rural work, 'with pitch-fork and flail,' is considered servile; and this would exclude the payment of rents and occasional help in the performance of agricultural labour; (2) certain duties are singled out as marking servitude because they imply the idea of one person being owned by another, and this would exclude subjection derived from the possession of land, however burdensome and arbitrary such subjection might be.

Turning next to manorial records, we find these abortive features of feudal law resting on a very broad basis. Only that land is considered servile which owes labour, if it renders nothing but rent it is termed free. We have here no mere commutation: the notion is an old one, and rather driven back by later law than emerging from it. It is natural enough that the holder of a plot is considered free if his relations with the lord are restricted to occasional appearances at court, occasional fines, and the payment of certain rents two or three times a year. It is natural enough that the holder of another plot should be treated as a serf because he is bound to perform work which is fitted as a part into the arrangement of his lord's husbandry, and constantly brought under the control and the coercive power of the steward. This matter-of-fact contrast comes naturally to the fore in doc.u.ments which are drawn up as descriptions of daily transactions and not as evidence for a lawsuit. But the terms 'free' and 'servile' are not used lightly even in such doc.u.ments. We may be sure that manorial juries and bailiffs would not have been allowed to displace at their pleasure terminological distinctions which might lead people to alter their legal position. The double sense of these terms cannot be taken as arranging society under the same two categories and yet in two entirely different ways: it must be construed as implying the two sides of one and the same thing, the substance in manorial records and the formal distinction in legal records. That is to say, when the test of legal protection was applied, the people who had to perform labour were deprived of it and designated as holding in villainage, and to the people who paid rent protection was granted and they were considered as holding freely. For this very reason the process of commutation creating mol-land actually led to an increase in the number of free tenancies[449].