Kitabı oku: «Villainage in England: Essays in English Mediaeval History», sayfa 8

Saxon origin of ancient demesne tenure.

Reverting now to the question of ancient demesne, we shall have to consider what light these statements throw on the origin of the tenure. I have noticed several times that ancient demesne socage was connected in principle with the condition of things in Saxon times, immediately before the Conquest. The courts had to impose limitations in order to control evidence; the whole institution was in a way created by limitation, because it restricted itself to the T.R.E. of Domesday as the only acceptable test of Saxon condition. But, notwithstanding all these features imposed by the requirements of procedure, ancient demesne drew its origin distinctly from pre-Conquest conditions. The manors forming it are taken as the manors of St. Edward²⁴⁰; the tenants, whenever they want to make a solemn claim, set forth their rights from the time of St. Edward²⁴¹, or even Cnut²⁴². But does this mean that the actual privileges of the tenure were extant in Saxon times? Surely not. Such things as freedom from common taxation, exemption from toll, separate jurisdiction, certainly existed in behalf of the king's demesnes before the Conquest, but there is no intimation whatever that the king's tenants enjoyed any peculiar right or protection as to their holdings and services. The 'little writ of right' and the 'Monstraverunt' are as Norman, in a wide sense of the word, as the freedom from serving on assizes or sending representatives to parliament. But although there is no doubt that this tenure grew up and developed several of its peculiarities after the Conquest, it had to fall back on Saxon times for its substance²⁴³, which may be described in few words—legal protection of the peasantry. The influence of Norman lawyers was exercised in shaping out certain actionable rights, the effect of conquest was to narrow to a particular class a protection originally conferred broadly, and the action of Saxon tradition was to supply a general stock of freedom and independent right, from which the privileged condition of Norman times could draw its nourishment, if I may put it in that way. It would be idle now to discuss in what proportion the Saxon influence on the side of freedom has to be explained by the influx of men who had been originally owners of their lands, and what may be assigned to the contractual character of Saxon tenant-right. This subject must be left till we come to examine the evidence supplied by Saxon sources of information. My present point is that the ancient demesne tenure of the Conquest is a remnant of the condition of things before the Conquest²⁴⁴.

It may well be asked why the destructive effects of Norman victory were arrested on ancient demesne soil? Was not the king as likely to exercise his discretion in respect of the peasantry as any feudal lord, and is it likely that he would have let himself be fettered by considerations and obligations which did not bind his subjects? In view of such questions one is tempted to treat the protection of the tenants on the ancient demesne merely as a peculiar boon granted to the people whom the king had to give away. I need not say that such an interpretation would be entirely wrong. I hope I have been able to make out convincingly that legal protection given against private lords on manors which had been alienated was only an outgrowth from that certainty of condition which was allowed on the king's own lands. I will just add now that one very striking fact ought to be noticed in this connexion; certainty of tenure and service is limited to one particular class in the manor, although that class is the most numerous one. If this privilege came into being merely by the fixation of status at the time when a manor passed from the crown, the state of the villain pure would have got fixed in the same way as that of the villain socman. But it did not, and so one cannot shirk the difficult question, What gave rise to the peculiar protection against the lord when the lord happened to be king?

I think that three considerations open the way out of the difficulty. To begin with, the king was decidedly considered as the one great safeguard of Saxon tradition and the one defender against Norman encroachments. He had constantly to hear the cry about 'the laws of Edward the Confessor,' and although the claim may be considered as a very vague one in general matters, it became substantiated in this case of tenure and services by the Domesday record. Then again, the proportion of free owners who had lapsed into territorial dependence must have been much greater on the king's land than anywhere else; it was quite usual to describe an allodial owner from the feudal point of view as holding under the king in a particular way, and villain socage was only one of several kinds of socage after all. Last, but not least, the protection against exactions was in reality directed not against the king personally but against his officers, and the king personally was quite likely to benefit by it almost as much as his men. It amounted after all only to a recognition of definite customs in general, to a special judicial organisation of the manor which made it less dependent upon the steward, and to the facilities afforded for complaint and revision of judgments. As to this last it must be noted that the king's men were naturally enough in a better position than the rest of the English peasantry; the curse of villainage was that manorial courts were independent of superior organisation as far as the lower tenants were concerned. But courts in royal manors were the king's courts after all, and as such they could hardly be severed from the higher tribunals held in the king's name.

I may be allowed to sum up the conclusions of this chapter under the following heads:—

1. The law of ancient demesne is primarily developed in regard to the manors in the king's own hand.

2. The special protection granted to villain socmen in ancient demesne is a consequence of a certainty of condition as much recognised in manors which the king still holds as in those which he has alienated.

3. This certainty of condition is derived from the Conquest as the connecting link between the Norman and the Saxon periods.

CHAPTER IV.
LEGAL ASPECT OF VILLAINAGE. CONCLUSIONS

Method of investigation.

I have been trying to make out what the theories of the lawyers were with regard to villainage in its divers ramifications. Were we to consider this legal part of the subject merely as a sort of crust superposed artificially over the reality of social facts, we should have to break through the crust in order to get at the reality. But, of course, the law regulating social conditions is not merely an external superstructure, but as to social facts is both an influence and a consequence. In one sense it is a most valuable product of the forces at play in the history of society, most valuable just by reason of the requirements of its formalism and of those theoretical tendencies which give a very definite even if a somewhat distorted shape to the social processes which come within its sphere of action.

The formal character of legal theory is not only important because it puts things into order and shape; it suggests a peculiar and efficient method of treating the historical questions connected with law. The legal intellect is by its calling and nature always engaged in analysing complex cases into constitutive elements, and bringing these elements under the direction of principles. It is constantly struggling with the confusing variety of life, and from the historian's point of view it is most interesting when it succumbs in the struggle. There is no law, however subtle and comprehensive, which does not exhibit on its logical surface seams and scars, testifying to the incomplete fusing together of doctrines that cannot be brought under the cover of one principle. And so a dialectic examination of legal forms which makes manifest the contradictions and confused notions they contain actually helps us to an insight into the historical stratification of ideas and facts, a stratification which cannot be abolished however much lawyers may crave for unity and logic.

Uncertainty and contradictions of legal theory.

In the particular case under discussion medieval law is especially rich in such historical clues. The law writers are trying hard to give a construction of villainage on the basis of the Roman doctrine of slavery, but their fabric gives way at every point. It would be hardly a fair description to say that we find many survivals of an older state of things and many indications of a new development. Everything seems in a state of vacillation and fermentation during the thirteenth century. As to the origin of the servile status the law of bastards gets inverted; in the case of matrimony the father-rule is driving the mother-rule from the ground; the influence of prescription is admitted by some lawyers and rejected by others. As to the means whereby persons may issue out of that condition, the views of Glanville and Bracton are diametrically opposed, and there are still traces in practice of the notion that a villain cannot buy his freedom and that he cannot be manumitted by the lord himself in regard to third persons. In their treatment of services in their reference to status the courts apply the two different tests of certainty and of kind. In their treatment of tenure they still hesitate between a complete denial of protection to villainage and the recognition of it as a mode of holding which is protected by legal remedies. And even when the chief lines are definitely drawn they only disclose fundamental contradictions in all their crudeness.

In civil law, villains are disabled against their lords but evenly matched against strangers; even against a lord legal protection is lingering in the form of an action upon covenant and in the notion that the villain's wainage should be secure. In criminal and in police law villains are treated substantially as free persons: they have even a share, although a subordinate one, in the organisation of justice. The procedure in questions of status is characterised by outrageous privileges given to the lord against a man in 'a villain nest,' and by distinct favour shown to those out of the immediate range of action of the lord. The law is quite as much against giving facilities to prove a man's servitude as it is against granting that man any rights when once his servitude has been established. The reconciliation of all these contradictions and anomalies cannot be attempted on dogmatic grounds. The law of villainage must not be constructed either on the assumption of slavery, or on that of liberty, or on that of colonatus or ascription. It contains elements from each of these three conditions, and it must be explained historically.

Influence of lawyers.

The material hitherto collected and discussed enables us to distinguish different layers in its formation. To begin with, the influence of lawyers must be taken into account. This is at once to be seen in the treatment of distinctions and divisions. The Common Law, as it was forming itself in the King's Court, certainly went far to smoothe down the peculiarities of local custom. Even when such peculiarities were legally recognised, as in the case of ancient demesne, the control and still more the example of the Common Law Courts was making for simplification and reducing them more or less to a generally accepted standard. The influence of the lawyers was exactly similar in regard to subdivisions on the vertical plane (if I may use the expression): for these varieties of dependence get fused into general servitude, and in this way classes widely different in their historical development are brought together under the same name. The other side of this process of simplification is shown where legal theory hardens and deepens the divisions it acknowledges. In this way the chasm between liberty and servitude increases as the notion of servitude gets broader. In order to get sharp boundaries and clear definitions to go by, the lawyers are actually driven to drop such traits of legal relations as are difficult to manage with precision, however great their material importance, and to give their whole attention to facts capable of being treated clearly. This tendency may account for the ultimate victory of the quantitative test of servitude over the qualitative one, or to put it more plainly, of the test of certainty of services over the discussion of kind of services. Altogether the tendency towards an artificial crystallisation of the law cannot be overlooked.

Roman law, Norman law, and royal jurisdiction.

In the work of simplifying conditions artificially the lawyers had several strong reagents at their disposal. The mighty influence of Roman law has been often noticed, and there can be no doubt that it was brought to bear on our subject to the prejudice of the peasantry and to the extinction of their independent rights. It would not have been so strong if many features of the vernacular law had not been brought half way to meet it. Norman rules, it is well known, exercised a very potent action on the forms of procedure²⁴⁵; but the substantive law of status was treated very differently in Normandy and in England, and it is not the influx of Norman notions which is important in our case, but the impetus given by them to the development of the King's Courts. This development, though connected with the practice of the Duchy, cannot be described simply or primarily as Norman. Once the leaven had been communicated, English lawyers did their own work with great independence as well as ingenuity of thought, and the decision of the King's Court was certainly a great force. I need not point out again to what extent the law was fashioned by the writ procedure, but I would here recall to attention the main fact, that the opposition between 'free' and 'unfree' rested chiefly on the point of being protected or not being protected by the jurisdiction of the King's Court.

Social bias of legal theories.

If we examine the action of lawyers as a whole, in order to trace out, as it were, its social bias, we must come to the conclusion that it was exercised first in one direction and then in the opposite one. The refusal of jurisdiction may stand as the central fact in the movement in favour of servitude, although that movement may be illustrated almost in every department, even if one omits to take into account what may be mere instances of bad temper or gross partiality. But the wave begins to rise high in favour of liberty even in the thirteenth century. It does not need great perspicuity to notice that, apart from any progress in morals or ideas, apart from any growth of humanitarian notions, the law was carried in this direction by that development of the State which lays a claim to and upon its citizens, and by that development of social intercourse which substitutes agreement for bondage. Is it strange that the social evolution, as observed in this particular curve, does not appear as a continuous crescendo, but as a wavy motion? I do not think it can be strange, if one reflects that the period under discussion embraces both the growth and the decay of feudalism, embraces, that is, the growth of the principle of territorial power on the ruins of the tribal system and also the disappearance of that principle before the growing influence of the State.

Influence of conquest.

Indirectly we have had to consider the influence of feudalism, as it was transmitted through the action of its lawyers. But it may be viewed in its direct consequences, which are as manifest as they are important. In England, feudalism in its definite shape is bound up with conquest²⁴⁶, and it is well known that, though very much hampered on the political side by the royal power, it was exceptionally complete on the side of private law by reason of its sudden, artificial, and enforced introduction. One of the most important results of conquest from this point of view was certainly the systematic way in which the subjection of the peasantry was worked out. If we look for comparison to France as the next neighbour of England and a country which has influenced England, we shall find the same elements at work, but they combine in a variety of modes according to provincial and local peculiarities. Although the political power of the French baron is so much greater than that of an English lord, the roturier often keeps his distance from the serf better than was the case in England. In France everything depends upon the changing equilibrium of local forces and circumstances. In England the Norman Conquest produced a compact estate of aristocracy instead of the magnates of the continent, each of whom was strong or weak according to the circumstances of his own particular case; it produced Common Law and the King's Courts of Common Law; and it reduced the peasantry to something like uniform condition by surrounding the liberi et legales homines with every kind of privilege. The national colouring given by the Dialogus de Scaccario to the social question of the time is not without meaning in this light:—the peasants may be regarded as the remnant of a conquered race, or as the issue of rebels who have forfeited their rights.

English feudalism.

The feudal system once established produced certain effects quite apart from the Conquest, effects which flowed from its own inherent properties. The Conquest had cast free and unfree peasantry together into the one mould of villainage; feudalism prevented villainage from lapsing into slavery. I have shown in detail how the manor gives a peculiar turn to personal subjection. Its action is perceivable in the treatment of the origin of the servile status. The villain, however near being a chattel, cannot be devised by will because he is considered as an annex to the free tenement of the lord. The connexion with a manor becomes the chief means of establishing and proving seisin of the villain. On the other hand, in the trial of status, manorial organisation led to the sharp distinction between persons in the power of the lord and out of it. This fact touches the very essence of the case. The more powerful the manor became, the less possible was it to work out subjection on the lines of personal slavery. Without entering into the economic part of the question for the present, merely from the legal point of view it was a necessary consequence of the rise of a local and territorial power that the working people under its sway were subjected by means of its territorial organisation and within its limited sphere of local action. Of course, the State upheld some of the lord's rights even outside the limits of the manor, but these were only a pale reflection of what took place within the manor, and they were more difficult to enforce in proportion as the barriers between the manors rose higher; it became very difficult for one lord to reclaim runaways who were lying within the manor of another lord.

Survivals of pre-feudal condition.

If we remove those strata of the law of villainage which owe their origin to the action of the feudal system and to the action of the State, which rises on the ruins of the feudal system, we come upon remnants of the pre-feudal condition. They are by no means few or unimportant, and it is rather a wonder that so much should be preserved notwithstanding the systematic work of conquest, feudalism, and State. When I speak of pre-feudal condition I do not mean to say, of course, that feudalism had not been in the course of formation before the Norman Conquest. I merely wish to oppose a social order grounded on feudalism to a social order which was only preparing for it and developing on a different basis. The Conquest brought together the free and unfree. Our survivals of the state of things before the Conquest group themselves naturally in one direction, they are manifestations of the free element which went into the constitution of villainage. It is not strange that it should be so, because the servile element predominated in those parts of the law which had got the upper hand and the official recognition. A trait which goes further than the accepted law in the direction of slavery is the difficulties which are put by Glanville in the way of manumission. His statement practically amounts to a denial of the possibility of manumission, and such a denial we cannot accept. His way of treating the question may possibly be explained by old notions as to the inability of a master to put a slave by a mere act of his will on the same level with free men.

Elements of freedom.

However this may be, our survivals arrange themselves with this single possible exception in the direction of freedom. Perhaps such facts as the villain's capacity to take legal action against third persons, and his position in the criminal and police law, ought not to be called survivals. They are certain sides of the subject. They are indissolubly allied to such features of the civil law as the occasional recognition of villainage as a protected tenure, and the villain's admitted standing against the lord when the lord had bound himself by covenant. In the light of these facts villainage assumes an entirely different aspect from that which legal theory tries to give it. Procedural disability comes to the fore instead of personal debasement. A villain is to a great extent in the power of his lord, not because he is his chattel, but because the courts refuse him an action against the lord. He may have rights recognised by morality and by custom, but he has no means to enforce them; and he has no means to enforce them because feudalism disables the State and prevents it from interfering. The political root of the whole growth becomes apparent, and it is quite clear, on the one hand, that liberation will depend to a great extent on the strengthening of the State; and, on the other hand, that one must look for the origins of enslavement to the political conditions before and after the Conquest.

One undoubtedly encounters difficulties in tracing and grouping facts with regard to those elements of freedom which appear in the law of villainage. Sometimes it may not be easy to ascertain whether a particular trait must be connected with legal progress making towards modern times, or with the remnants of archaic institutions. As a matter of fact, however, it will be found that, save in very few cases, we possess indications to show us which way we ought to look.

Another difficulty arises from the fact that the law of this period was fashioned by kings of French origin and lawyers of Norman training. What share is to be assigned to their formal influence? and what share comes from that old stock of ideas and facts which they could not or would not destroy? We may hesitate as to details in this respect. It is possible that the famous paragraph of the so-called Laws of William the Conqueror, prescribing in general terms that peasants ought not to be taken from the land or subjected to exactions²⁴⁷, is an insertion of the Norman period, although the great majority of these Laws are Saxon gleanings. It is likely that the notion of wainage was worked out under the influence of Norman ideas; the name seems to show it, and perhaps yet more the fact that the plough was specially privileged in the duchy. It is to be assumed that the king, not because he was a Norman but because he was a king, was interested in the welfare of subjects on whose back the whole structure of his realm was resting. But the influence of the strangers went broadly against the peasantry, and it has been repeatedly shown that Norman lawyers were prompted by anything but a mild spirit towards them. The Dialogus de Scaccario is very instructive on this point, because it was written by a royal officer who was likely to be more impartial than the feudatories or any one who wrote in their interest would be, and yet it makes out that villains are mere chattels of their lord, and treats them throughout with the greatest contempt. And so, speaking generally, it is to the times before the Conquest that the stock of liberty and legal independence inherent in villainage must be traced, even if we draw inferences merely on the strength of the material found on this side of the Conquest. And when we come to Saxon evidence, we shall see how intimately the condition of the ceorl connects itself with the state of the villain along the main lines and in detail.

Ancient demesne.

The case of ancient demesne is especially interesting in this light. It presents, as it were, an earlier and less perfect crystallisation of society on a feudal basis than the manorial system of Common Law. It steps in between the Saxon soc and tun on the one hand, and the manor on the other. It owes to the king's privilege its existence as an exception. The procedure of its court is organised entirely on the old pattern and quite out of keeping with feudal ideas, as will be shown by-and-by. Treating of it only in so far as it illustrates the law of status, it presents in separate existence the two classes which were fused in the system of the Common Law; villain socmen are carefully distinguished from the villains, and the two groups are treated differently in every way. A most interesting fact, and one to be taken up hereafter, is the way of treating the privileged group as the normal one. Villain socmen are the men of ancient demesne; villains are the exception, they appear only on the lord's demesne, and seem very few, so far as we can make a calculation of numbers. Villain socmen enjoy a certainty of condition which becomes actual tenant-right when the manor passes from the crown into a private lord's hand. As to its origin there can be no doubt—ancient demesne is traced back to Saxon times in as many words and by all our authorities.

Clues as to the condition of Saxon peasantry.

A careful analysis of the law of ancient demesne may even give us valuable clues to the condition of the Saxon peasantry. The point just noticed, namely, that the number of villain socmen is exceedingly large and quite out of proportion to that of other tenants, gives indirect testimony that the legal protection of the tenure was not due merely to an influx of free owners deprived of their lands by conquest. This is the explanation given by Bracton, but it is not sufficient to account for the privileged position of almost all the tenants within the manor. A considerable part of them surely held before the Conquest not as owners and not freely, but as tenants by base services, and their fixity of tenure is as important in the constitution of ancient demesne as is the influx of free owners. If this latter cause contributed to keep up the standard of this status, the former cause supplied that tradition of certainty to which ancient demesne right constantly appeals.

Another point to be kept firmly in view is that the careful distinction kept up on the ancient demesne between villain socmen and villains, proves the law on this subject to have originated in the general distribution of classes and rights during the Saxon period, and not in the exceptional royal privilege which preserved it in later days; I mean, that if certainty of condition had been granted to the tenantry merely because it was royal tenantry, which is unlikely enough in itself, the certainty would have extended to tenants of all sorts and kinds. It did not, because it was derived from a general right of one class of peasants to be protected at law, a right which did not in the least preclude the lord from using his slaves as mere chattels.

And so I may conclude: an investigation into the legal aspect of villainage discloses three elements in its complex structure. Legal theory and political disabilities would fain make it all but slavery; the manorial system ensures it something of the character of the Roman colonatus; there is a stock of freedom in it which speaks of Saxon tradition.