vill2-第25章
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facta est inquisitio diligens； qui fuerint qui contra regem in bello dimicantes per fugam Se salvaverint。 His omnibus et item haeredibus eorum qui in bello occubuerunt； spes omnis terrarum et fundorum atque redituum； quos ante possederant； praeclusa est； magnum namque reputabant frui vitae beneficio sub inimicis。 Verum qui vocati ad bellum nec dum convenerant； vel familiaribus vel quibuslibet necessariis occupati negotiis non interfuerant； cum tractu temporis devotis obsequiis gratiam dominorum possedissent； sine spe successionis； sibi tantum pro voluptate （voluntate？） tamen dominorum possidere coeperunt。 Succedente vero tempore cum dominis suis odiosi passim a possessionibus pellerentur； nec esset qui ablata restitueret； communis indigenarum ad regem pervenit querimonia； quasi sic omnibus exosi et rebus spoliati ad alienigenas transire cogerentur。 Communicato tandem super his consilio； decretum est； ut quod a dominis suis exigentibus meritis interveniente pactione legitima poterant obtinere； illis inviolabili jure concederentur； ceterum autem nomine successionis a temporibus subactae gentis nihil sibi vendicarent。'
104。 Stoneleigh Reg。； 4 a： 'Que quidem maneria existencia in possessione et manu domini regis Edwardi per universum regnum vocantur antiquumn dominicum corone regis Anglie prout in libro de Domesdav continetur。'
105。 'Loquebantur de tempore Sti Edwardi Regis coram W。 de Wilton。'
106。 The men of King's Ripton。
107。 I do not think there is any ground for the suggestion thrown out by M。 Kovalevsky in the Law Quarterly； iv。 p。 271； namely； that the law of ancient demesne was imported from Normandy。 Whatever the position of the villains was in the Duchy； Norman influence in England made for subjection； because it was the influence of conquest。 It must be remembered that in a sense the feudal law of England was the hardest of all in Western Europe； and this on account of the invasion。
108。 Stubbs； Const。 Hist。 I。 454： 'In those estates； which； when they had been held by the crown since the reign of Edward the Confessor； bore the title of manors in ancient demesne； very much of the ancient popular process had been preserved without any change； and to the present day some customs are maintained in them which recall the most primitive institutions。' I shall have to speak about the mode of holding the courts in another chapter。
Chapter 4
Legal Aspect of Villainage。 Conclusions
I have been trying to make out what the theories of the lawyers were with regard to villainage in its divers ramifications。 Were we to consider this legal part of the subject merely as a sort of crust superposed artificially over the reality of social facts； we should have to break through the crust in order to get at the reality。 But； of course； the law regulating social conditions is not merely an external superstructure； but as to social facts is both an influence and a consequence。 In one sense it is a most valuable product of the forces at play in the history of society； most valuable just by reason of the requirements of its formalism and of those theoretical tendencies which give a very definite even if a somewhat distorted shape to the social processes which come within its sphere of action。 The formal character of legal theory is not only important because it puts things into order and shape； it suggests a peculiar and efficient method of treating the historical questions connected with law。 The legal intellect is by its calling and nature always engaged in analysing complex cases into constitutive elements； and bringing these elements under the direction of principles。 It is constantly struggling with the confusing variety of life； and from the historian's point of view it is most interesting when it succumbs in the struggle。 There is no law； however subtle and comprehensive； which does not exhibit on its logical surface seams and scars； testifying to the incomplete fusing together of doctrines that cannot be brought under the cover of one principle。 And so a dialectic examination of legal forms which makes manifest the contradictions and confused notions they contain actually helps us to an insight into the historical stratification of ideas and facts； a stratification which cannot be abolished however much lawyers may crave for unity and logic。 In the particular case under discussion medieval law is especially rich in such historical clues。 The law writers are trying hard to give a construction of villainage on the basis of the Roman doctrine of slavery； but their fabric gives way at every point。 It would be hardly a fair description to say that we find many survivals of an older state of things and many indications of a new development。 Everything seems in a state of vacillation and fermentation during the thirteenth century。 As to the origin of the servile status the law of bastards gets inverted； in the case of matrimony the father…rule is driving the mother…rule from the ground； the influence of prescription is admitted by some lawyers and rejected by others。 As to the means whereby persons may issue out of that condition； the views of Glanville and Bracton are diametrically opposed； and there are still traces in practice of the notion that a villain cannot buy his freedom and that he cannot be manumitted by the lord himself in regard to third persons。 In their treatment of services in their reference to status the courts apply the two different tests of certainty and of kind。 In their treatment of tenure they still hesitate between a complete denial of protection to villainage and the recognition of it as a mode of holding which is protected by legal remedies。 And even when the chief lines are definitely drawn they only disclose fundamental contradictions in all their crudeness。 In civil law； villains are disabled against their lords but evenly watched against strangers； even against a lord legal protection is lingering in the form of an action upon covenant and in the notion that the villain's wainage should be secure。 In criminal and in police law villains are treated substantially as free persons： they have even a share； although a subordinate one； in the organisation of justice。 The procedure in questions of status is characterised by outrageous privileges given to the lord against a man in 'a villain nest；' and by distinct favour shown to those out of the immediate range of action of the lord。 The law is quite as much against giving facilities to prove a man's servitude as it is against granting that man any rights when once his servitude has been established。 The reconciliation of all these contradictions and anomalies cannot be attempted on dogmatic grounds。 The law of villainage must not be constructed either on the assumption of slavery； Or on that of liberty； or on that of colonatus or ascription。 It contains elements from each of these three conditions； and it must be explained historically。 The material hitherto collected and discussed enables us to distinguish different layers in its formation。 To begin with； the influence of lawyers must be taken into account。 This is at once to be seen in the treatment of distinctions and divisions。 The Common Law； as it was forming itself in the King's Court； certainly went far to smoothe down the peculiarities of local custom。 Even when such peculiarities were legally recognised； as in the case of ancient demesne； the control and still more the example of the Common Law Courts was making for simplification and reducing them wore or less to a generally accepted standard。 The influence of the lawyers was exactly similar in regard to subdivisions on the vertical plane （if I may use the expression）： for these varieties of dependence get fused into general servitude； and in this way classes widely different in their historical development are brought together under the same name。 The other side of this process of simplification is shown where legal theory hardens and deepens the divisions it acknowledges。 In this way the chasm between liberty and servitude increases as the notion of servitude gets broader。 In order to get sharp boundaries and clear definitions to go by； the lawyers are actually driven to drop such traits of legal relations as are difficu
