Villainage in England: Essays in English Mediaeval History. Paul Vinogradoff

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СКАЧАТЬ and followed it in many instances besides those just quoted. It was held, for instance, that in defending liberty every means ought to be admitted. The counsel pleading for it sometimes set up two or three pleas against his adversary and declined to narrow his contention, thus transgressing the rules against duplicity of plea 'in favour of liberty126.' In the case of a stranger settling on the land, his liberty was always assumed, and the court declined to construe any uncertainty of condition against him127. When villainage was pleaded in bar against a person out of the power of the lord, the special question was very often examined by a jury from the place where the person excepted to had been lately resident, and not by a jury from the country where he had been born128. This told against the lord, of course, because the jurors might often have very vague notions as to the previous condition of their new fellow-countryman129.

      It would be impossible to say in what particular cases this partiality of the law is to be taken as a consequence of enlightened and humanitarian views making towards the liberation of the servile class, and in what cases it may be traced to the fact that an original element of freedom had been attracted into the constitution of villainage and was influencing its legal development despite any general theory of a servile character. There is this to be noticed in any case, that most of the limitations we have been speaking of are found in full work at the very time when villainage was treated as slavery in the books. One feature, perhaps the most important of all, is certainly not dependent on any progress of ideas: however complete the lord's power over the serf may have been, it was entirely bound up with the manorial organisation. As soon as the villain had got out of its boundaries he was regularly treated as a free man and protected in the enjoyment of liberty so long as his servile status had not been proved130. Such protection was a legal necessity, a necessary complement to the warranty offered by the state to its real free men. There could be no question of allowing the lord to seize on any person whom he thought fit to claim as his serf. And, again, if the political power inherent in the manor gave the lord A great privileges and immunities as to the people living under his sway, this same manorial power began to tell against him as soon as such people had got under the sway of lord B or within the privileged town C. The dependant could be effectually coerced only if he got back to his unfree nest again or through the means of such kinsfolk as he had left in the unfree nest131. And so the settlement of disputed rights connected with status brings home forcibly two important positions: first the theory of personal subjection is modified in its legal application by influence in favour of liberty; and next this influence is not to be traced exclusively to moral and intellectual progress, but must be accounted for to a great extent by peculiarities in the political structure of feudalism.

      Enfranchisement.

      One point remains to be investigated in the institution of villainage, namely modes in which a villain might become free. I have had occasion to notice the implied manumission which followed from a donation of land to a bondman and his heirs, which in process of time was extended to all contracts and concords between a lord and his serf. A villain was freed also, as is well known, by remaining for a year and a day on the privileged soil of a crown manor or a chartered town132. As to direct manumission, its usual mode was the grant of a charter by which the lord renounced all rights as to the person of his villain. Traces of other and more archaic customs may have survived in certain localities, but, if so, they were quite exceptional. Manumission is one of the few subjects touched by Glanville in the doctrine of villainage, and he is very particular as to its conditions and effects. He says that a serf cannot buy his freedom, because he has no money or goods of his own. His liberty may be bought by a third person however, and his lord may liberate him as to himself, but not as regards third persons. There seems to be a want of clearness in, if not some contradiction between these two last statements, because one does not see how manumission by a stranger could possibly be wider than that effected by the lord. Again, the whole position of a freed man who remains a serf as regards everybody but his lord is very difficult to realize, even if one does not take the later view into account, which is exactly the reverse, namely that a villain is free against everybody but his lord. I may be allowed to start a conjecture which will find some support in a later chapter, when we come to speak about the treatment of freedom and serfdom in manorial documents. It seems to me that Glanville has in mind liberation de facto from certain duties and customs, such as agricultural work for instance, or the payment of merchet. Such liberation would not amount to raising the status of a villain, although it would put him on a very different footing as to his lord133. However this may be, if from Glanville's times we come down to Bracton and to his authorities, we shall find all requirements changed, but distinct traces of the former view still lingering in occasional decisions and practices. There are frequent cases of villains buying their freedom with their own money134, but the practice of selling them for manumission to a stranger is mentioned both in Bracton's Treatise135 and in his Notebook. A decision of 1226 distinctly repeats Glanville's teaching that a man may liberate his serf as to himself and not as to others. The marginal note in the Note-book very appropriately protests against such a view, which is certainly quite inconsistent with later practice136. Such flagrant contradictions between authorities which are separated barely by some sixty or seventy years, and on points of primary importance too, can only tend to strengthen the inference previously drawn from other facts—that the law on the subject was by no means square and settled even by the time of Bracton, but was in every respect in a state of transition.

       CHAPTER III.

      ANCIENT DEMESNE

      Definition.

      The old law books mention one kind of villainage which stands out in marked contrast with the other species of servile tenure. The peasants belonging to manors which were vested in the crown at the time of the Conquest follow a law of their own. Barring certain exceptions, of which more will be said presently, they enjoy a certainty of condition protected by law. They are personally free, and although holding in villainage, nobody has the right to deprive them of their lands, or to alter the condition of the tenure, by increasing or changing the services. Bracton calls their condition one of privileged villainage, because their services are base but certain, and because they are protected not by the usual remedies supplied at common law to free tenants, but by peculiar writs which enforce the custom of the manor137. It seems well worth the while to carefully investigate this curious case with a view to get at the reasons of a notable deviation from the general course, for such investigation may throw some reflected light on the treatment of villainage in the common law.

      Legal practice is very explicit as to the limitation of ancient demesne in time and space. It is composed of the manors which belonged to the crown at the time of the Conquest138. This includes manors which had been given away subsequently, and excludes such as had lapsed to the king after the Conquest by escheat or forfeiture139. Possessions granted away by Saxon kings before the Conquest are equally excluded140. In order to ascertain what these manors were the courts reverted to the Domesday description of Terra Regis. As a rule these lands were entered as crown lands, T.R.E. and T.R.W., that is, were considered to have been in the hand of King Edward in 1066, and in the hand of King William in 1086. But strictly and legally they were crown lands at the moment when King William's claim inured, or to use the contemporary phrase, 'on the day when King Edward was alive and dead.' The important point evidently was that the Norman king's right in this case bridged over the Conquest, and for this reason such possessions СКАЧАТЬ