Kitabı oku: «Villainage in England: Essays in English Mediaeval History», sayfa 15

Kentish system.

Let us take a Kentish survey, the Black Book of St. Augustine's, Canterbury, for instance: it describes the peasant holdings in a way which differs entirely from other surveys. It begins by stating what duties lie on each sulung, that is, on the Kentish ploughland corresponding to the hide of feudal England. No regular sub-divisions corresponding to the virgates and bovates are mentioned, and the reckoning starts not from separate tenements, but from their combination into sulungs⁴⁹⁹. Then follow descriptions of the single sulungs, and it turns out that every one of them consists of a very great number of component parts, because the progeny of the original holders has clustered on them, and parcelled them up in very complicated combinations⁵⁰⁰. The portions are sometimes so small, that an independent cultivation of them would have been quite impossible. In order to understand the description it must be borne in mind that the fact of the tenement being owned by several different persons in definite but undivided shares did not preclude farming in common; while on the other hand, in judging of the usual feudal arrangement of holdings we must remember that the artificial unity and indivisibility of the tenement may be a mere screen behind which there exists a complex mass of rights sanctioned by morality and custom though not by law. The surveys of the Kentish possessions of Battle Abbey are drawn up on the same principle as those of St. Augustine's; the only difference is, that the individual portions are collected not in sulungs, but in yokes (juga)⁵⁰¹.

And so we have in England two systems of dividing the land of the peasant, of regulating its descent and its duties. In one case the tenant-right is connected with rigid holdings descending to a single heir; in another the tenements get broken up, and the heirs club together in order to meet the demands of the manorial administration. The contrast is sharp and curious enough. How is one to explain, that in conditions which were more or less identical, the land was sometimes partitioned and sometimes kept together, the people were dispersed in some instances and kept together in others?

Connecting links between the two systems.

Closer inspection will show that however sharp the opposition in law may have been, in point of husbandry and actual management the contrast was not so uncompromising. Connecting links may be found between the two. The Domesday of St. Paul's, for instance, is compiled in the main in the usual way, but one section of it—the description of the Essex manors of Kirby, Horlock, and Thorpe—does not differ from the Kentish surveys in anything but the terminology⁵⁰². The services are laid on hides, and not on the actual tenements. Each hide includes a great number of plots which do not fall in with any constant subdivisions of the same kind as the virgates and bovates. Some of these plots are very small, all are irregular in their formation. It happens that one and the same person holds in several hides. In one word, the Kentish system has found a way for some unexplained reason into the possessions of St. Paul's, and we find subjected to it some Essex manors which do not differ much in their husbandry arrangements from other properties in Essex, and have no claim to the special privileges of Kentish soil.

Once apprised of the possible existence of such intermediate forms, we shall find in most surveys facts tending to connect the two arrangements. The Gloucester Cartulary, for instance, mentions virgates held by four persons⁵⁰³. The plots of these four owners are evidently brought together into a virgate for the purpose of assessing the services. Two peasants on the same virgate are found constantly. It happens that one gets the greater part of the land and is called the heir, while his fellow appears as a small cotter who has to co-operate in the work performed by the virgate⁵⁰⁴. Indications are not wanting that sometimes virgates crumbled up into cotlands, bordlands, and crofts. The denomination of some peasants in Northumberland is characteristic enough—they are 'selfoders,' obviously dwelling 'self-other' on their tenements⁵⁰⁵. On the other hand, it is to be noticed that the gavelkind rule of succession, although enacting the partibility of the inheritance, still reserves the hearth to the youngest born, a trace of the same junior right which led to Borough English.

United and partible holdings.

I think that upon the whole we must say that in practice the very marked contrast between the general arrangement of the holdings and the Kentish one is more a difference in the way of reckoning than in actual occupation, in legal forms than in economical substance. The general arrangement admitted a certain subdivision under the cover of an artificial unity which found its expression in the settlement of the services and of the relations with the lord⁵⁰⁶. The English case has its parallel on the Continent in this respect. In Alsace, for instance, the holding was united under one 'Träger' or bearer of the manorial duties; but by the side of him other people are found who participate with this official holder in the ownership and in the cultivation⁵⁰⁷. The second system also kept up the artificial existence of the higher units, and obvious interests prevented it from leading to a 'morcellement' of land into very small portions in practice. The economic management of land could not go as far as the legal partition. In practice the subdivision was certainly checked, as in the virgate system, by the necessity of keeping together the cattle necessary for the tillage. Virgates and bovates would arise of themselves: it was not advantageous to split the yoke of two oxen, the smallest possible plough; and co-heirs had to think even more when they inherited one ox with its ox-gang of land. The animal could not be divided, and this certainly must have stopped in many cases the division of land. When the documents speak of plots containing two or three acres, it must be remembered that such crofts and cotlands occur also in the usual system, and I do not see any reason to suppose that the existence of such subdivided rights always indicated a real dispersion of the economic unit: they may have stood as a landmark of the relative rights of joint occupiers. I do not mean to say, of course, that there was no real basis for the very great difference which is assumed by the two ways of describing the tenements. No doubt the hand of the lord lay heavier on the Essex people than on the Kentish men, their occupation and usage of the land was more under the control of the lord, and assumed therefore an aspect of greater regularity and order. Again, the legal privileges of the Kentish people opened the way towards a greater development of individual freedom and a certain looseness of social relations. Still it would be wrong to infer too much from this formal opposition. In both cases the centripetal and the centrifugal tendency are working against each other in the same way, although one case presents the stronger influence of disruptive forces, and the other gives predominance to the collective power. In the history of socage and military tenure the system of unity arose gradually, and without any sudden break, out of the system of division. The intimate connexion between both forms is even more natural in peasant ownership, which had to operate with small plots and small agricultural capital, and therefore inclined naturally towards the artificial combination of divided interests. In any case there is no room in practice for the rigid and consequent operation of either rule of ownership, and, if so, there is no actual basis for the inference that the unification of the holding is to be taken as a direct consequence of a servile origin of the tenement and a sure proof of it. Unification appears on closer inspection as a result of economic considerations as well as of legal disabilities, and for this reason the tendency operated in the sphere of free property as well as among the villains; among these last it could not preclude the working of the disruptive elements, but in many cases only hid them from sight by its artificial screen of rigid holdings.

The holding and the team.

We have seen that the size and distribution of the holdings are connected with the number of oxen necessary for the tillage, and its relation to the full plough. The hide appears as the ploughland with eight oxen, the virgate corresponds to one yoke of oxen, and the bovate to the single head. It need not be added that such figures are not absolutely settled, and are to be accepted as approximate terms. The great heavy plough drawn by eight or ten oxen is certainly often mentioned in the records, especially on demesne land⁵⁰⁸. The dependent people, when they have to help in the cultivation of the demesne, club together in order to make up full plough teams⁵⁰⁹. It is also obvious that the peasantry had to associate for the tilling of their own land, as it was very rare for the single shareholder to possess a sufficient number of beasts to work by himself. But it must be noticed that alongside of the unwieldy eight-oxen plough we find much lighter ones. Even on the demesne we may find them drawn by six oxen. And as for the peasantry, they seem to have very often contented themselves with forming a plough team of four heads⁵¹⁰. It is commonly supposed by the surveys that the holder of a yardland joins with one of his fellows to make up the team. This would mean on the scale of the hide of 120 acres that the team consists of four beasts⁵¹¹. It happens even that a full plough is supposed to belong to two or three peasants, of which every one is possessed only of five acres; in such cases there can be no talk of a big plough; it is difficult to admit even a four-oxen team, and probably those people only worked with one yoke or pair of beasts⁵¹². Altogether it would be very wrong to assume in practice a strict correspondence between the size of the holding and the parts of an eight-oxen plough. The observation that the usual reckoning of the hide and of its subdivisions, according to the pattern of the big team, cannot be made to fit exactly with the real arrangement of the teams owned by the peasantry—this firmly established observation leads us once more to the conclusion that the system of equal holdings had become very artificial in process of time and was determined rather by the relation between the peasants and the manorial administration than by the actual conditions of peasant life. Unhappily the artificial features of the system have been made by modern inquirers the starting-point of very far-reaching theories and suppositions. Seebohm has proposed an explanation of the intermixture of strips as originating in the practice of coaration. He argues that it was natural to divide the land tilled by a mixed plough-team among the owners of the several beasts and implements. Every man got a strip according to a certain settled and ever-recurring succession. I do not pretend to judge of the value of the interesting instances adduced by Seebohm from Celtic practices, but whatever the arrangement in Wales or Ireland may have been, the explanation does not suit the English case. A doubt is cast on it already by the fact that such a universal feature as the intermixture of strips appears connected with the occurrence of such a special instrument as the eight-oxen plough. The intermixture is quite the same in Central Russia, where they till with one horse, and in England where more or less big ploughs were used. The doubt increases when we reflect that if the strips followed each other as parts of the plough-team, the great owners would have been possessed of compact plots. Every holder of an entire hide would have been out of the intermixture, and every virgater would have stood in conjunction with a sequence of three other tenants. Neither the one nor the other inference is supported by the facts. The observation that the peasantry are commonly provided with small ploughs drawn by four beasts ruins Seebohm's hypothesis entirely. One would have to suppose that most fields were divided into two parts, as the majority of the tenements are yardlands with half a team. The only adequate explanation of the open-field intermixture has been given above; it has its roots in the wish to equalise the holdings as to the quantity and quality of the land assigned to them in spite of all differences in the shape, the position, and the value of the soil.

Terms of exceptional occurrence.

Before I leave the question as to the holdings of the feudal peasantry, I must mention some terms which occur in different parts of England, although more rarely than the usual hides and virgates⁵¹³. Of the sulung I have spoken already. It is a full ploughland, and 200 acres are commonly reckoned to belong to it. The name is sometimes found out of Kent, in Essex for instance. In Tillingham, a manor of St. Paul's of London, we come across six hides 'trium solandarum⁵¹⁴.' The most probable explanation seems to be that the hide or unit of assessment is contrasted with the solanda or sulland (sulung), that is with the actual ploughland, and two hides are reckoned as a single solanda.

The yokes (juga) of Battle Abbey⁵¹⁵ are not virgates, but carucates, full ploughlands. This follows from the fact that a certain virgate mentioned in the record is equivalent only to one fourth of the yoke. In the Norfolk manors of Ely Minster we find tenmanlands⁵¹⁶ of 120 acres in the possession of several copartitioners, participes. The survey does not go into a detailed description of tenements and rights, and the reckoning of services starts from the entire combination, as in the Kentish documents. A commonly recurrent term is wista⁵¹⁷; it corresponds to the virgate: a great wista is as much as half-a-hide, or two virgates⁵¹⁸.

The terms discussed hitherto are applied to the tenements in the fields of the village; but besides those there are other names for the plots occupied by a numerous population which did not find a place in the regular holdings. There were craftsmen and rural labourers working for the lord and for the tenants; there were people living by gardening and the raising of vegetables. This class is always contrasted with the tenants in the fields. The usual name for their plots is cote, cotland, or cotsetland. The so-called ferdel, or fourth part of a virgate, is usually mentioned among them because there are no plough-beasts on it⁵¹⁹. Another name for the ferdel is nook⁵²⁰. Next come the crofters, whose gardens sometimes extend to a very fair size—as much as ten acres in one enclosed patch⁵²¹. The cotters proper have generally one, two, and sometimes as much as five acres with their dwellings; they cannot keep themselves on this, as a rule, and have to look out for more on other people's tenements. A very common name for their plots is 'lundinaria⁵²²,' 'Mondaylands,' because the holders are bound to work for the lord only one day in the week, usually on Monday. Although the absence of plough-beasts, of a part in coaration, and of shares in the common fields draws a sharp line between these men and the regular holders, our surveys try sometimes to fit their duties and plots into the arrangement of holdings; the cotland is assumed to represent one sixteenth or even one thirty-second part of the hide⁵²³. The Glastonbury Survey of 1189 contains a curious hint that two cottages are more valuable than one half-virgate: two cotlands were ruined during the war, and they were thrown together into half a virgate, although it would have been more advantageous to keep two houses on them, that is two households⁵²⁴. The bordae mentioned by the documents are simply cottages or booths without any land belonging to them⁵²⁵. The manorial police keeps a look-out that such houses may not arise without licence and service⁵²⁶.

A good many terms are not connected in any way with the general arrangement of the holdings, but depend upon the part played by the land in husbandry or the services imposed upon it. To mention a few among them. A plot which has to provide cheese is called Cheeseland⁵²⁷. Those tenements which are singled out for the special duty of carrying the proceeds of the manorial cultivation get the name of averlands⁵²⁸. The terms lodland⁵²⁹, serland⁵³⁰ or sharland, are also connected with compulsory labour. The first is taken from the duty to carry loads or possibly to load waggons; the second may be employed in reference to work performed with the sithe or reap-hook. A plot reserved for the leader of the plough-team, the akerman, was naturally called akermanland⁵³¹. Sometimes, though rarely, the holding gets its name from the money rent it has to pay. We hear of denerates⁵³² and nummates⁵³³ of land in this connexion.

Conclusions.

All these variations in detail do not avail to modify to any considerable extent the chief lines on which the medieval system of holdings is constructed. I presume that the foregoing exposition has been sufficient to establish the following points:—

1. The principle upon which the original distribution depended was that of equalizing the shares of the members of the community. This led to the scattering and to the intermixture of strips. The principle did not preclude inequality according to certain degrees, but it aimed at putting all the people of one degree into approximately similar conditions.

2. The growth of population, of capital, of cultivation, of social inequalities led to a considerable difference between the artificial uniformity in which the arrangement of the holdings was kept and the actual practice of farming and ownership.

3. The system was designed and kept working by the influence of communal right, but it got its artificial shape and its legal rigidity from the manorial administration which used it for the purpose of distributing and collecting labour and rent.

4. The holdings were held together as units, not merely by the superior property of the lord, but by economic considerations. They were breaking up under the pressure of population, not merely in the case of free holdings, but also where the holdings were servile.

CHAPTER II.
RIGHTS OF COMMON

Meadows.

The influence of the village community is especially apparent in respect of that portion of the soil which is used for the support of cattle. The management of meadows is very interesting because it presents a close analogy to the treatment of the arable, and at the same time the communal features are much more clearly brought out by it. We may take as an instance a description in the Eynsham Survey. The meadow in Shifford is divided into twelve strips, and these are distributed among the lord and the tenantry, but they are not apportioned to any one for constant ownership. One year the lord takes all the strips marked by uneven numbers, and the next year he moves to those distinguished by even numbers⁵³⁴. The tenants divide the rest according to some settled rotation. Very often lots are drawn to indicate the portions of the several households⁵³⁵. It must be added that the private right of the single occupiers does not extend over the whole year: as in the case of the arable all inclosures fall after the harvest, so in regard to meadows the separate use, and the boundaries protecting it, are upheld only till the mowing of the grass: after the removal of the hay the soil relapses into the condition of undivided land. The time of the 'defence' extends commonly to 'Lammas day:' hence the expression 'Lammas-meadow' to designate such land. It is hardly necessary to insist on the great resemblance between all these features and the corresponding facts in the arrangement of the arable. The principle of division is supplied by the tendency to assign an equal share to every holding, and the system of scattered strips follows as a necessary consequence of the principle. The existence of the community as a higher organising unit is shewn in the recurrence of common use after the 'defence,' and in the fact that the lord is subjected to the common rotation, although he is allowed a privileged position in regard to it. The connexion in which the whole of these rights arises is made especially clear by the shifting ownership of the strips: private right appears on communal ground, but it is reduced to a minimum as it were, has not settled down to constant occupation, and assumes its definite shape under the influence of the idea of equal apportionment. Of course, by the side of these communal meadows we frequently find others that were owned in severalty.

Allotment of pasture.

Land for pasture also occurs in private hands and in severalty, but such cases are much rarer⁵³⁶. Sometimes the pasture gets separated and put under 'defence' for one part of the year, and merges into communal ownership afterwards⁵³⁷. But in the vast majority of cases the pasture is used in common, and none of the tenants has a right to fence it in or to appropriate it for his own exclusive benefit. It ought to be noted, that the right to send one's cattle to the pasture on the waste, the moors, or in the woods of a manor appears regularly and intimately connected with the right to depasture one's cattle on the open fields of the village⁵³⁸. Both form only different modes of using communal soil. As in the case of arable and meadow the undivided use cannot be maintained and gets replaced by a system of equalised shares or holdings, so in the case of pasture the faculty of sending out any number of beasts retires before the equalisation of shares according to certain modes of 'stinting' the common. We find as an important manorial arrangement the custom to 'apportion' the rights of common to the tenements, that is to decide in the manorial Court, mostly according to verdicts of juries, how many head of cattle, and of what particular kind, may be sent to the divers pasture-grounds of the village by the several holdings. From time to time these regulations are revised. One of the Glastonbury Surveys contains, for instance, the following description from the 45th year of Henry III. Each hide may send to the common eighteen oxen, sixteen cows, one bull, the offspring of the cows of two years, two hundred sheep with four rams, as well as their offspring of one year, four horses and their offspring of one year, twenty swine and their offspring of one year⁵³⁹. According to a common rule the only cattle allowed to use the village pasture was that which was constantly kept in the village, levant e couchant en le maner. In order to guard against the fraudulent practice of bringing over strange cattle and thus making money at the expense of the township, it was required sometimes that the commonable cattle should have wintered in the manor⁵⁴⁰.

Pasture an adjunct to holding.

These last rules seem at first sight difficult of explanation: one does not see in what way the bringing in of strange cattle could damage the peasantry of the village, as nobody could drive more than a certain number of beasts to the common, and as the overburdening of it depended entirely on the excess of this number, and not on the origin of the beasts. And so one has to look to something else besides the apprehension that the common would get overburdened, in order to find a suitable explanation of the rule. An explanation is readily supplied by the notion that the use of the common was closely connected with the holding. Strange cattle had nothing to do with the holding, and were to be kept off from the land of the community; it is as representatives of a community whose territory has been invaded that the individual commoners have cause to complain. In fact, the common pasture, as well as the meadows, were thought of merely as a portion of the holding. The arrangements did not admit of the same certainty or rather of the same kind of determination as the division of the arable, but the main idea which regulated the latter was by no means cut short in its operation, if one may say so: it was not bound up with the exact measurement of arable acres. The holding was the necessary agricultural outfit of a peasant family, and of this outfit the means of feeding the cattle were quite as important a part as the means of raising crops. It is only inaccurately that we have been speaking of a virgate of 30 acres, and of a ploughland of 180 or 160. The true expression would be to speak of a virgate of 30 acres of arable and the corresponding rights to pasture and other common uses. And the records, when they want to give something like a full description, do not omit to mention the 'pertinencia,' the necessary adjuncts of the arable. The term is rather a vague one, quite in keeping with the rights which, though tangible enough, cannot be cut to so certain a pattern as in the case of arable⁵⁴¹. And for this reason the laxer right had to conform to the stricter one, and came to be considered as appendant to it.

Common in special cases.

We have considered till now the different aspects assumed by common of pasture, when it arises within the manor, and as a consequence of the arrangement of its holdings. But this is not the only way in which common of pasture may arise. It may originate in an express and special grant by the lord either to a tenant or to a stranger⁵⁴²; it may also proceed from continuous use from time beyond legal memory⁵⁴³: it must have been difficult in many cases to prevent strangers from establishing such a claim by reason of long occupation in some part of a widely stretching moor or wood pasture⁵⁴⁴. It was not less difficult in such cases to draw exact boundaries between adjoining communities, and we find that large tracts of country are used as a common pasture-ground by two villages, and even by more⁵⁴⁵. Neighbours deem it often advantageous to establish a certain reciprocity in this respect⁵⁴⁶. By special agreement or by tacit allowance lords and tenants intercommon on each other's lands: this practice extends mostly to the waste only, but in some cases the arable and meadow are included after the removal of the crop and of the hay. The procedure of the writ 'quo jure' was partly directed to regulate these rights and to prevent people from encroaching wantonly upon their neighbours⁵⁴⁷. When land held in one fee or one manor was broken up for some reason into smaller units, the rights of pasture were commonly kept up according to the old arrangements⁵⁴⁸.

These different modes of treating the pasture present rather an incongruous medley, and may be classified in several ways and deduced from divers sources.

Modern classification of commons.

The chief distinctions of modern law are well known: 'Common Appendant is the right which every freehold tenant of the manor possesses, to depasture his commonable cattle, levant and couchant on his freehold tenement anciently arable, on the wastes of the manor, and originally on all (common) pasture in the manor. Common appurtenant on the other hand is against common right, becoming appurtenant to land either by long user or by grant express or implied. Thus it covers a right to common with animals that are not commonable, such as pigs, donkeys, goats, and geese; or a right to common claimed for land not anciently arable, such as pasture, or land reclaimed from the waste within the time of legal memory, or for land that is not freehold, but copyhold⁵⁴⁹.' Common in gross is a personal right to common pasture in opposition to the praedial rights. Mr. Scrutton has shown from the Year Books that these terms and distinctions emerge gradually during the fourteenth century, and appear substantially settled only in Littleton's treatise. Bracton and his followers, Fleta and Britton, do not know them. These are important facts, but they hardly warrant the inferences which have been drawn from them. The subject has been in dispute in connexion with discussions as to the free village community. Joshua Williams, in his Rights of Common⁵⁵⁰, had assumed common appendant to originate in ancient customary right bestowed by the village community and not by the lord's grant; Scrutton argues that such a right is not recognised by the documents. He lays stress on the fact, that Bracton speaks only of two modes of acquiring common, namely, express grant by the lord, and long usage understood as constant sufferance on the part of the lord amounting to an express grant. But this is only another way of saying that Bracton's exposition is based on feudal notions, that his land law is constructed on the principle 'nulle terre sans seigneur,' and that every tenement, as well as every right to common, is considered in theory as granted by the lord of the manor. It may be admitted that Bracton does not recognise just that kind of title which later lawyers knew as appendancy, does not recognise that a man can claim common by showing merely that he is a freeholder of the manor. Unless he relies on long continued user, he must rely upon grant or feoffment. But the distinction between saying 'I claim common because I am a freeholder of the manor' and saying 'I claim common because I or my ancestors have been enfeoffed of a freehold tenement of the manor and the right of common passed by the feoffment,' though it may be of juristic interest and even of some practical importance as regulating the burden of proof and giving rise to canons for the interpretation of deeds, is still a superficial distinction which does not penetrate deeply into the substance of the law. On the whole we find that the freeholder of Bracton's time and of earlier times does normally enjoy these rights which in after time were described as 'appendant' to his freehold; and it is well worth while to ask whether behind the general assumptions of feudal theory there do not lie certain data which, on the one hand, prepare and explain later terminology, and are connected, on the other, with the historical antecedents of the feudal system.