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

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СКАЧАТЬ constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman arms.'

      The structure of the component parts is (for Blackstone) as ancient as the constitution of the whole. The English manor is of Saxon origin in all its essential characteristics, but the treatment of the people within the manor underwent a very notable change in consequence of the Norman invasion. In Saxon times the common people settled on folkland were immersed in complete slavery. Their condition was improved by the Conquest, because the Normans admitted them to the oath of fealty. And the improvement did not stop there: although the peasantry held their plots only by base tenure and at the lord's will, the lord allowed in most cases a hereditary possession. In this way out of the lord's will custom arose, and as custom is the soul or vital principle of common law, the Courts undertook in the end to protect the base tenure of the peasantry against the very lord whose will had created it. Such was the rise of the copyhold estate of modern times.

      Blackstone's work is a compilation, and it would be out of the question to reduce its statements to anything like consistency. The rationalistic mode of thought which has left such a peculiar stamp on the eighteenth century, appears in all its glory in the laying out of the wise military polity of feudalism. But scarcely has our author had time to show the rapid progress of this plan all round Europe, when he starts on an entirely new tack, suggested by his wish to introduce a historical justification of Constitutional Monarchy. Feudal polity is of late introduction in England, and appears as a compact between sovereign and subjects; original freedom was not destroyed by this compact, and later infringements of contractual rights by kings ultimately led to a restoration and development of ancient liberties. In the parts of the treatise which concern Private Law the keynote is given throughout by that very Norman jurisprudence on which such severe condemnation is passed with regard to Public Law. The Conquest is thus made to appear alternately as a source of danger, struggle, and hardship from one point of view, and as the origin of steady improvement in social condition from another. In any case the aristocratic cast of English life is deduced from its most ancient origins, and all the rights of the lower orders are taken as the results of good-humoured concession on the part of the lords of the soil and of quiet encroachment against them.

      Revolution in Historical literature. The Romantic school.

      Statements and arguments in Blackstone's style could hold water only before that great crisis in history and historical literature by which the nineteenth century was ushered into the world. The French Revolution, and the reaction against it, laid open and put to the test the working of all the chief forces engaged in historical life. Government and social order, nationality and religion, economic conditions and modes of thought, were thrown into the furnace to be consumed or remoulded. Ideas and institutions which had towered over centuries went down together, and their fall not only brought home the transitory character of human arrangements, but also laid bare the groundwork of society, which however held good in spite of the convulsions on its surface. The generation that witnessed these storms was taught to frame its politics and to understand history in a new fashion8. The disorderly scepticism of the eighteenth century was transformed by Niebuhr into a scientific method that paved the way by criticism to positive results. On the other hand, the Utopian doctrines of political rationalism were shattered by Savigny's teaching on the fundamental importance of tradition and the unconscious organic growth of nations. In his polemic with Thibaut, the founder of the historical school of law enters a mighty protest against wanton reform on the ground of a continuity of institutions not less real than the continuity of language, and his 'History of Roman Law during the Middle Ages' demonstrated that even such a convulsion as the Barbarian Invasion was not sufficient to sweep away the foundations of law and social order slowly formed in the past. Eichhorn's 'History of German Public and Private Law' gave detailed expression to an idea which occurs also in some of Savigny's minor works—to the idea, namely, that the German nations have had to run through their history with an engrained tendency in their character towards political dismemberment and social inequality. This rather crude attempt at generalising out some particular modern features and sanctioning them by the past is of historical interest, because it corresponds to the general problem propounded to history by the Romantic school: viz. to discover in the various manifestations of the life of a nation its permanent character and the leading ideas it is called to embody in history.

      The comparative soundness of the English system had arrayed it from the very beginning on the side of Conservatism against Revolution, and Burke was the first to sound the blast of a crusade against subversive theories. No wonder the historical discoveries on the Continent found a responsive echo in English scholarship. Allen9 took up the demonstration that the Royal power in England had developed from the conceptions of the Roman Empire. Palgrave10 gave an entirely new construction of Anglo-Saxon history, which could not but exercise a powerful influence on the study of subsequent periods. His book is certainly the first attempt to treat the problems of medieval social history on a large scale and by new methods. It deserves special attention11.

      Sir Francis Palgrave.

      The author sat down to his work before the Revolution of 1830, although his two volumes were published in 1832. He shares the convictions of very moderate Liberalism, declares in favour of the gradual introduction of reforms, and against any reform not framed as a compromise between actual claims. Custom and tradition did not exclude change and development in England, and for this reason the movement towards progress did not tear that people from the inheritance of their ancestors, did not disregard the mighty agency of historical education. In order to study the relative force of the elements of progress and conservatism in English history, Palgrave goes behind the external play of institutions, and tries to connect them with the internal growth of legal principles. It is a great, though usual, mistake to begin with political events, to proceed from them to the study of institutions, and only quite at the end to take up law. The true sequence is the inverse one. And in England in particular the Constitution, with all its showy and famous qualities, was formed under the direct influence of judicial and legal institutions. In accordance with this leading view Palgrave's work begins by a disquisition on classes, forms of procedure and judicial organisation, followed up by an estimate of the effects of the different Conquests, and ultimately by an exposition of the history of government. We need not feel bound by that order, and may start from the conclusion which gives the key to Palgrave's whole system.

      The limited monarchy of England is a result of the action of two distinct elements, equally necessary for its composition. It is a manifestation of the monarchical power descended both in principle and in particular attributes from the Roman Empire. If this political idea had not been at work the kingdoms of the barbarians would have presented only loose aggregates of separate and self-sufficient political bodies; on the other hand, if this political idea had been supreme, medieval kings would have been absolute. The principles of Teutonic and of Roman polity had to work together, and the result was the medieval State with an absolute king for its centre, and a great independence of local parts. The English system differed from the continental in this way, that in England the free judicial institutions of the localities reacted on the central power, and surrounded it by constitutional limitations, while the Continent had to content itself with estates of a very doubtful standing and future. It is easy to see in this connexion how great an importance we must assign to the constitution of local Courts: the shires, hundreds, and townships are not mere administrative divisions, but political bodies. That the kingdom formed itself on their basis, not as an absolute but as a parliamentary monarchy, must be explained in a great measure by the influence of the Norman Conquest, which led to a closer union of the isolated parts, and to a concentration of local liberty in parliament.

      But (such is Palgrave's view) the importance of Conquests has been greatly overrated in history. The barbarian invasion did not effect anything like a sudden or complete subversion of things; it left in force and action most of the factors of the preceding period. The passage from one rule to another СКАЧАТЬ