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I have been speaking hitherto of the ideas dominating feudal jurisprudence, and not of the many indications of the fact that this jurisprudence was welding together and transforming very different conceptions and conditions. But it is difficult to read the thirteenth century records of cases relating to villain tenure without being impressed by the notion that we are facing a new departure, a jurisprudence hesitating, feeling its way on freshly occupied ground. Already the fact that people fasten on many and discordant tests goes far to prove it; merchet, reeveship, borough English, alienation of cattle, examination of week-work, food obligations of the manor are produced concurrently and simultaneously, and sometimes jury and judges find themselves nevertheless at a standstill. There is some dispute about every one of the tests applied, not even excluding merchet, the plainest. Sometimes the courts declare principles which, if applied with consequence, would obliterate the distinction between villainage and socage; sometimes, again, they "favour liberty." One thing seems pretty clear in the midst of all this confusion; the division between certain and uncertain services as it was gradually evolved by legal theory, and the practice of the courts was, to a great extent, an artificial one, momentous in its consequences, but built up on rather slight foundations. It divided the peasantry on the right and the left into classes as far apart from each other as the sheep and goats of Scripture, but it was not easy to see how the original difference between sheep and goat arose-it was not a thing of nature.

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The theory propounded by the lawyers looked merely as an extension of the doctrine of serfdom to the whole class of villains. "Villain service is when a man does not know in the evening what he may be ordered to do in the morning," wrote the leading exponent of feudal law. Everything a villain has belongs to his lord," was another feudal saying which occasionally gave rise to very unpleasant consequences for the peasant. "To hold in villainage is nothing else but to say that one holds at the will of the lord" was a third one, and in all these dicta the theory of the servile condition of the peasantry at large got sharpened into legal points. The consoling feature about it is that all these statements were too absolute for everyday life. The peasantry were aware, through custom, of the work they had to perform in the course of the year. The villains enjoyed such clearly defined rights of possession that their goods were considered and taxed separately by the State. The distribution and occupation of their holdings was much more a result of custom

than of arbitrary interference on the part of the lord. The real meaning of all the dicta was to show to what extreme consequences the legal construction of certain relations might lead, not to present either a fair appreciation of their usual working, or the easiest tests for discriminating them in practice.

If we want to get behind the feudal doctrine, our safest clue lies in the fact that the whole system is made dependent in the practice of the early thirteenth century on the point of granting, or not granting, the assizes and the great writ of right. In its legal completeness, it is hardly older than these remedies, and we observe it on its way to formation. I will not revert to the curious aberrations from the highway leading to the exclusion of the villains from the Royal courts,' but I should like to lay stress in this connection on a point noticed by others, and embodied in no less a document than Magna Charta, namely on the qualification "free," which was brought in into the clause about disseisin in the Confirmation of Henry III. in 1217.2 It squares exactly with the formula of the writ of novel disseisin, which was rightly considered and applied as excluding villains and tenants in villainage. But was there no material distinction to go by in the discrimination by the courts between the people they were to protect and those to whom protection was refused? Surely it was no matter of arbitrary selection on the part of the judges. I think that the analysis of cases, as previously given, goes to show that the material distinction from which the lawyers started, was that of agricultural service, not more and not less. They assumed that agricultural service, as such, was villain service and a presumption of villain tenure, unless proof of the contrary was forthcoming. It would have been nice and clear indeed, if the whole of English society could have been arranged under the headings of villains holding by rural work, socagers holding by rent, knights and serjeants holding by military service, clergy holding by ecclesiastical obligations! The reality of things did not quite admit of such simplicity, and produced variations which puzzled lawyers and confuse modern learning. But the general drift of jurisprudence, 1 Villainage in England, 78 ff.

2 Confirmation of 1217: Nullus liber homo . . . dissaisietur de libero tenemento suo vel liberatibus vel liberis consuetudinibus, etc. Cf. Pollock and Maitland, I., 341.

3 I cannot discuss in this paper the very interesting symptoms of social condition at the time of Domesday. Still, I should like to call the attention of the reader, in connection with the uncertainty of ancient distinctions, to the curious customs of Sokemen in the Inquisitio Com. Cantebrig. (ed. Hamilton) 192–195. Cf. Round Feudal England. These Sokemen should go for villains in the light of later definitions.

following, as it did, on the lines of the ascendency of conquerors and military landlords, produced a system in which the great mass of the peasantry was left rightless and unprotected, rightless because unprotected.

I am anxious to present this view of the legal situation, because I think that it is the only one which accounts for historical development. It has been said that the denial of legal protection is the consequence and not the cause of the uncertainty of villain tenure. This might have been true, if we could suppose that it was all settled before the thirteenth century what certain and uncertain services were. As a matter of fact, we find the courts of that age in the process of settling it by their grant and refusal of protection, and thereby contributing powerfully towards the spread of servile customs and of uncertainty in the arrangement of peasant life. A jurisprudence developing on old prefeudal lines would have considered the slave only as uncertain in his will and work, and would not have shrunk from discussing the conditions of rural economy. The turn towards other views was reached when the liberties conferred by the reforms of Henry II. and by the Great Charter were restricted to the narrow strip of territory formed by free tenements. Henceforward the course of development lay in the gradual enlargement of this privileged shore. What the refusal of jurisdiction meant may be illustrated by the words of an ancient French jurist, who had to tell of similar facts in his own country: "Et ce qu'en dit que totes les choses que vileins a sont son seignor, c'est voirs a garder; car s'eles estoient a son seignor propres, il n'auroit quant a ce null difference entre serf et vilein; mès par nostre usage n'a-il, entre toi et ton vilein, juge fors Deu." P. VINOGRADOFF

1

Appendix. Trin. 15 Joh. r. 20, Middlesex (Cecilia folia Alexandri v. Balduinum Juvenem). Juratores dicunt quod ipsi certi sunt quod predictus Balduinus fuit seisitus de una vergata terre unde hæc assisa arraniata est et quod ipsi eum disseisiverunt, set nesciunt, si sit liberum tenementum vel non. Quia si ipse habuerit carucam, ipsa arabit Domino suo tres acras ad cibum suum proprium, ita tamen quod in estate dum arat habeat herbagium ad boves suos, tan tum modo dum arat. Dicunt eciam quod ipse et alii debent falcare tres turnos et introducent fenum in grangiam Domini sui et habebunt pro hoc meliorem multonem quem eligere possint in falda Domini sui. Item ad aliam falcationem debent similiter ipse et alii homines ejusdem ville tenentes eodem modo, et fenum introducere in grangiam domini sui, et pro hoc solebant antiquitus habere unum mullonem de feno, set postea se comperuit Dominus quod hoc fuit ad gravamen, et communia (cōā) locutus fuit cum eis, quod ipsi ex sua voluntate concesserunt ei quod daret eis duodecim denarios loco mullonis.

1 Pierre de Fontaines, Conseil à un ami.

Debent eciam in autumpno facere precarias ad cibum Domini et reddere ad Pascha de qualibet acra quam tenent unum ovum. Dicunt eciam quod nunquam audiverunt dici de filiabus eorum quod finem facerent cum Domino de eis maritando neque de bobus suis vendendis. Dicunt eciam quod antiquitus in septennio solebat Dominus eorum petere auxilium et ei auxliebantur. Dicunt eciam quod plures sunt in villa illa consuetudinarii qui debent trahere feces et alia servilia opera, et alii predicto modo tenentes non faciunt. Consideratum est quod per servicia illa non est tenementum illud villanum, et ideo ipse habeat seisinam suam, et predicti in misericordia.

SOME ECONOMIC CONSEQUENCES OF THE SOUTH AFRICAN WAR.1

IT has sometimes been remarked that men are prone to attach an unreal importance to divisions like those which separate one century from another. Certainly the expression fin de siècle has recently echoed in our ears until we have wearied of its iteration. We have seen many attempts to express in some comprehensive, but striking, phrase the characteristics of the century, which is dying. We have witnessed not a few endeavours to delineate the features of the new century, which is coming to its birth. And we have been reminded by cool, detached observers that after all the minds and manners of men do not alter, and the inevitable sequence of events does not change, because we write nineteen where once we used a lower figure. The fact indeed that we make this particular change before the new period strictly commences, and the controversy, which has arisen, on the precise moment, at which we leave the nineteenth, and enter the twentieth century, may serve to recall the arbitrary nature of such chronological boundaries. Yet it is natural that their presence should stimulate at once to reflection and prophecy. An occasion is offered when we may pause, looking back on the past and on to the future. We may try to discern the hidden meaning of movements and forces obscured or bewildering when first they made their appearance. We may indulge in the tempting occupation of pushing to their ultimate effects causes which have only begun to operate. Such essays may indeed be undertaken at all seasons. But they are

perhaps more often, and appropriately, made when one epoch is ending and another is commencing. Nor is it irrational to suppose that the very occurrence, or approach, of such a period may exert a subtle, but appreciable, influence on actual practice.

1 A Paper read before the Economic Science and Statistics Section of the British Association at Bradford, September, 1900.

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