1 was the assumption upon which all early German law is based. But M. de Coulanges' criticisms, valuable as they are, do not disprove altogether the existence of some form of common ownership of land in the remoter periods of Teutonic or of British history; for the proof of this common ownership lies more in survivals and customs 1 than in stray references in legal documents. And Professor Lamprecht, a follower of von Maurer, was quite right in pointing out 2 that nothing depends on the word "mark" itself. It matters very little after all whether we find the word in documents or not; it even matters very little whether the mark ever existed as it is depicted by von Maurer or Stubbs. The fact remains that there are extensive evidences of communal ownership (as well as tenancy) in English manors, and these evidences point back to a state of things which the theory of private property in land and a dependent body of cultivators in the earliest times cannot satisfactorily explain. § 28. Vinogradoff's Evidence on the Manorial System. The most recent, and certainly one of the most learned, investigators of this difficult question has concluded, as the result of his researches, that "the communal organisation of the peasantry is more ancient and more deeply laid than the manorial order. Even the feudal period shows everywhere traces of a peasant class living and working in economically self-dependent communities under the loose authority of a lord, whose claims may proceed from political sources, and affect the semblance of ownership, but do not give rise to the manorial connection between estate and village." " The so-called manorial system consists in the peculiar connection of two entirely distinct agrarian bodies or parties the community of villagers cultivating their own fields, and the home-estate (sometimes loosely called the demesne) of the lord "tacked on to" this settlement. This expression "tacked on" gives the key to the solution of the question. The manorial 1 As shown e.g., in Gomme's Village Community. 3 Vinogradoff, Villeinage, pp. 408, 409. 4 Ib., p. 404. system, as we find in late Saxon and Norman times, contains a seigneurial element which has evidently been superimposed upon an originally communal element. Originally there was an independent village community (whether living exactly according to the "mark" system or not does not matter), but in later times we find a dependent community working for a home-farm, which is the lord's. How did the independent community become subject to this lord? The holders of the older "mark" theory seem to have supposed that the subjection was due to political and social causes gradually enhancing the "The power of some local man of note or authority. relation of dependence on a lord may have been entered into by a free landowner for the sake of honour or protection"; and there are abundant evidences of this to those who were "commendation" of weaker men politically and socially more powerful 2—though, as a matter of fact, the practice was generally the result of the police The man who had organisation, not of the land system.3 land judged the man who had not," and there was a constant assimilation going on between the really servile But dependents of a lord and the smaller landowners. however the practice of commendation arose, it undoubtedly had great effect in reducing the originally free status of At the same time, the many of the smaller landowners. main features of the manorial subjection to a lord are probably due more to the influence of conquest than to that of social or judicial requirements, though these latter cannot be neglected or minimised. The number of servile dependents is too large to be accounted for by peaceful influences. Moreover, it has been till recently overlooked that in many cases the services rendered by dependants were rendered not to a lord living on a home farm, but to one living at some considerable distance. This is specially 1 Stubbs, Const. Hist., vol. I. ch. v. p. 79; cf. also p. 273. 2 Especially in Domesday; see Ellis, Introd. to Domesday, i. 64-66. 3 Stubbs, ut ante, p. 79, note, and p. 189. Ib., p. 189. The landless man was compelled to choose a lord for his surety and protector, ib., p. 153. 5 Vinogradoff, Villeinage, p. 405, the case in the furnishing of provisions for the lord's table and other wants, for we constantly find that provisions were sent by the dependents to a castle a long way off. There is also the matter of the firma unius noctis, as it is called, the payment of "provisions for one night" made to the king's household by a borough or village, which seems to point to a community "standing entirely by itself and taxed to a certain tribute, without any superior land-estate necessarily engrafted upon it." Vinogradoff thinks this implies an over-lordship exacting tribute, but not the close manorial relationships which we see under a later system. Again, the fact that the lord's demesne land is often found in strips, mixed up with the strips of the peasantry (p. 82), seems also to imply a time when the tenants or subject class did not collect to work for the lord upon a separate home farm, as we find them doing later, but merely devoted one part of their labour upon their own ground in the common fields to the use and payment of the lord.2 This shows an intermediate stage between the tribute paid by a practically self-dependent community (as in the case of the firma unius noctis) and the services rendered when the village was linked more closely with a manorial estate.3 Once again, we note the existence of a special class of servants 4 "who collect and supervise the dues and services of the peasants" in early times, but who are not to be found so frequently in the thirteenth and fourteenth centuries, when the number of "home farms" was becoming greater. Besides these special servants (radmen, rodknights or ridingbailiffs), we also note that in many cases the "free" tenants or socmen (see p. 75) have a kind of supervision over the rest while they are doing some of the services for the lord, and their position indicates that, though the village is already set to work for the lord, it manages this work as much as possible by itself as a self-dependent community.5 1 Vinogradoff, Villeinage, p. 405, and see Pearson, Hist. of Eng., vol. I., Appx. D. Thus the community of Badwen in Essex rendered a payment of eight nights, Saham and Fordham in Cambs. gave three nights, and many other instances are found in Domesday. 2 Vinogradoff, Villeinage, p. 406. • Ib., p. 407. 3 lb., p. 406. 5 Ib., p. 407. § 29. Evidence from Manorial Courts and Customs. All this seems to imply the subjection of originally free communities to an overlord, a subjection that proceeded first by reducing them to a more or less loose and tributepaying relationship, and later by the introduction of a resident lord on a home farm (the demesne), or at least of a home farm superintended by a bailiff representing a lord. The internal constitution of the manor gives the strongest evidence for this original freedom. In the manorial courts (p. 80) the tenants were the jurors and suitors, while the lord or his steward was not the judge, but merely the recorder of their decisions. It was the suitors and jurors, the tenants in fact, who constituted the court and pronounced the judgments.1 It was not till much later, under Norman influence, that the status of the tenants in their own courts became debased, and the lord or his bailiff was regarded as the judge.2 This Another very important piece of evidence, showing that ceremonies, which have been erroneously regarded as proving the original servility of tenants prove in reality their original freedom, is the manorial form of surrender and admittance. When a tenant was admitted into his holding "in base tenure," the steward handed to him a rod. was till lately thought to symbolise the lord's authority, but Vinogradoff shows that, on the contrary, it was a survival of the old custom, requiring that important transactions should be performed before witnesses and a middleman, and that the steward had taken the place of the middleman and did not really represent the lord at all.1 A case like this shows us at once how archaic are the constitutions and customs of the village community, and how easily, when these customs are no longer understood, they may be erroneously construed as evidences of seigneurial power. 1 Vinogradoff, Villeinage, p. 370. 2 It may be added that the village as a body frequently acts as an organised community in disposing of rights connected with the soil. Cf. the case of Brightwaltham, Vinogradoff, p. 359. 3 Villeinage, pp. 372, 373. 4 Cf. Gomme, Vill. Comm., p. 191, who quotes a similar transference of a rod, or twig, in the Malmesbury village community. The twig here (as in the other cases mentioned by Vinogradoff) represents the land itself, certainly not a lord's authority. 3 The position of "free" tenants (p. 75) in the later manors is, again, a matter of some difficulty. It is as erroneous to imagine that at (say) the time of Domesday there was no intermediate grade between the lord and his serfs or villeins, as it is to hold that all the Saxons and those who came over with them were entirely free. In Domesday we find traces of a large number of tenants of various degrees of freedom, and it is these traces, together with those derived from the legal procedure of the Norman period, that Vinogradoff has explained with masterly insight. It is now pretty evident that the classification of society into villeins and freedholders is comparatively late and artificial,1 and that between these two distinct classes there was a third class, and a very large one, of "customary "2 freeholders, who had originally formed the great mass of the peasantry. The Anglo-Saxon world was ordered and governed by custom to an extent quite unappreciated by the Norman lawyer and surveyor, and hardly to be realised at all by Englishmen of the present day. But this customary" life, and all that it implied, was perfectly well understood by the inhabitants of the village who lived under it. The villagers cared nothing for abstract legal definitions of tenure and status, though they all knew the conditions under which they and their forefathers held their land. But the Normans, with their fixed ideas of "free " and "unfree" tenancies, tried to reduce everyone into one of these two sharply-defined categories, and hence it comes that "villeinage " must not be taken too literally as a clear definition of a tenant's status or tenure, but we must remember that it was really "a complex mould into which several heterogeneous elements had been fused." 5 Hence 1 Villeinage, pp. 132, 177. 2 The word custumarius is found in Rot. Hundred., ii. 422, 507a. 3 Vinogradoff, p. 220. 4 The fact that free men in Kent and on the Danish manors of Essex were all classed by Domesday as villani shows what mistakes the Normans made. Vinogradoff, p. 208. 5 Vinogradoff, p. 177; cf. also "The life of the villein is chiefly dependent on custom, which is the great characteristic of mediaval relations and which stands in sharp contrast with slavery on the one hand and freedom on the other." |