Villainage in England: Essays in English Mediaeval History. Paul Vinogradoff
of classes, which ever, as it were, loom up behind the pageant of political institutions and parties. Nasse follows up the thread of investigation from the study of private law towards the study of economic conditions. G.F. v. Maurer and Maine enlarge it in scope, material, and means by their comparative inquiry, taking into view, first, all varieties of the Teutonic race, and then the development of other ethnographical branches. The village community comes out of the inquiry as the constitutive cell of society during an age of the world, quite as characteristic of medieval structure, as the town community or 'civitas' was of ancient polity.
The consciousness that political and scientific construction has been rather hasty in its work, that it has often been based upon doctrines instead of building on the firm foundation of facts—the widely spread perception of these defects has been of late inciting statesmen and thinkers to put to use some of those very elements which were formerly ignored or rejected. The manorial School—if I may be allowed to use this expression—has brought forward the influence of great landed estates against the democratical conception of the village community. The work spent upon this last phenomenon is by no means undone; on the contrary, it was received in most of its parts. But new material was found in the manorial documents of the later middle ages, the method of investigation 'from the known to the unknown' was used both openly and unconsciously, comparative inquiry was handled for more definite, even if more limited purposes. Great results cannot be contested: to name one—the organising force of aristocratic property has been acknowledged and has come to its rights.
But the new impetus given to research has caused its originators to overleap themselves, as it were. They have occupied so exclusively the point of view whence the manor of the later middle ages is visible that they have disregarded the evidence which comes from other quarters instead of finding an explanation which will satisfy all the facts. The investigation 'from the known to the unknown' has its definite danger, against which one has to be constantly on one's guard: its obvious danger is to destroy perspective and ignore development by carrying into the 'unknown' of early times that which is known of later conditions. Altogether the attempt to overthrow some of the established results of investigation as to race and classes does not seem to be a happy one. And so, although great work has been done in our field of study, it cannot be said that it has been brought to a close—'bis an die Sterne weit.' Many things remain to be done, and some problems are especially pressing. The legal and the economical side of the inquiry must be worked up to the same level; manorial documents must be examined systematically, if not exhaustively, and their material made to fit with the evidence established from other sources of information; the whole field has to be gone over with an eye for proof and not for doctrine. A review of the work already done, and of the names of scholars engaged in it, is certainly an incitement to modesty for every new reaper in the field, but it is also a source of hope. It shows that schools and leading scholars displace one another more under the influence of general currents of thought than of individual talent. The ferment towards the formation of groups comes from the outside, from the modern life which surrounds research, forms the scholar, suggests solutions. Moreover, theoretical development has a continuity of its own; all the strength of this manifold life cannot break or turn back its course, but is reduced to drive it forward in ever new bends and curves. The present time is especially propitious to our study: one feels, as it were, that it is ripening to far-reaching conclusions. So much has been done already for this field of enquiry in the different countries of Europe, that the hope to see in our age a general treatment of the social origins of Western Europe will not seem an extravagant one. And such a treatment must form as it were the corner-stone of any attempt to trace the law of development of human society. It is in this consciousness of being borne by a mighty general current, that the single scholar may gather hope that may buoy him against the insignificance of his forces and the drudgery of his work.
FIRST ESSAY.
THE PEASANTRY OF THE FEUDAL AGE
CHAPTER I.
THE LEGAL ASPECT OF VILLAINAGE. GENERAL CONCEPTIONS
Medieval serfdom.
It has become a commonplace to oppose medieval serfdom to ancient slavery, one implying dependence on the lord of the soil and attachment to the glebe, the other being based on complete subjection to an owner. There is no doubt that great landmarks in the course of social development are set by the three modes hitherto employed of organising human labour: using the working man (1) as a chattel at will, (2) as a subordinate whose duties are fixed by custom, (3) as a free agent bound by contract. These landmarks probably indicate molecular changes in the structure of society scarcely less important than those political and intellectual revolutions which are usually taken as the turning-points of ancient, medieval, and modern history.
And still we must not forget, in drawing such definitions, that we reach them only by looking at things from such a height that all lesser inequalities and accidental features of the soil are no longer sensible to the eyesight. In finding one's way over the land one must needs go over these very inequalities and take into account these very features. If, from a general survey of medieval servitude, we turn to the actual condition of the English peasantry, say in the thirteenth century, the first fact we have to meet will stand in very marked contrast to our general proposition.
Importance of legal treatment.
The majority of the peasants are villains, and the legal conception of villainage has its roots not in the connexion of the villain with the soil, but in his personal dependence on the lord.
If this is a fact, it is a most important one. It would be reckless to treat it as a product of mere legal pedantry30. The great work achieved by the English lawyers of the twelfth and thirteenth centuries was prompted by a spirit which had nothing to do with pedantry. They were fashioning state and society, proudly conscious of high aims and power, enlightened by the scholastic training of their day, but sufficiently strong to use it for their own purposes; sound enough not to indulge in mere abstractions, and firm enough not to surrender to mere technicalities31. In the treatment of questions of status and tenure by the lawyers of Henry II, Henry III, and Edward I, we must recognise a mighty influence which was brought to bear on the actual condition of things, and our records show us on every page that this treatment was by no means a matter of mere theory. Indeed one of the best means that we have for estimating the social process of those times is afforded by the formation and the break up of legal notions in their cross influences with surrounding political and economic facts.
Definition and terminology of villainage at Common Law.
As to the general aspect of villainage in the legal theory of English feudalism there can be no doubt. The 'Dialogus de Scaccario' gives it in a few words: the lords are owners not only of the chattels but of the bodies of their ascripticii, they may transfer them wherever they please, 'and sell or otherwise alienate them if they like32.' Glanville and Bracton, Fleta and Britton33 follow in substance the same doctrine, although they use different terms. They appropriate the Roman view that there is no difference of quality between serfs and serfs: all are in the same abject state. Legal theory keeps a very firm grasp of the distinction between status and tenure, between a villain and a free man holding in villainage, but it does not admit of any distinction of status among serfs: servus, villanus, and nativus are equivalent terms as to personal condition, although this last is primarily meant to indicate something else besides condition, namely, the fact that a person has come to it by birth34. The close connexion between the terms is well illustrated by the early use of nativa, nieve, 'as a feminine to villanus.'
Treatment of villainage in legal practice.
These notions are by no means abstractions bereft of practical import. Quite in keeping with them, manorial lords could remove peasants from their holdings at their will and pleasure. An appeal to the courts was of no avail: the lord in reply had only to oppose his right over the plaintiff's person, and to refuse to go into the subject-matter of the case
Thorold Rogers, History of Agriculture and Prices, i. 70; Six Centuries of Work and Wages, 44. Cf. Chandler, Five Court Rolls of Great Cressingham in the county of Norfolk, 1885, pp. viii, ix.
Stubbs, Seventeen Lectures, 304, 305; Maitland, Introduction to the Note-book of Bracton, 4 sqq.
Dial. de Scacc. ii. 10 (Select Charters, p. 222). Cf. i. 10; p. 192.
Glanville, v. 5; Bracton, 4, 5; Fleta, i. 2; Britton, ed. Nichols, i. 194.
Bracton, 5; Britton, i, 197. Pollock, Land-laws, App. C, is quite right as to the fundamental distinction between status and tenure, but he goes too far, I think, in trying to trace the steps by which names originally applying to different things got confused in the terminology of the Common Law. Annotators sometimes indulged in distinctions which contradict each other and give us no help as to the law. The same Cambridge MS. from which Nichols gives an explanation of