vill2-第27章
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t practically amounts to a denial of the possibility of manumission； and such a denial we cannot accept。 His way of treating the question may possibly be explained by old notions as to the inability of a master to put a slave by a mere act of his will on the same level with free men。 However this may be； our survivals arrange themselves with this single possible exception in the direction of freedom。 Perhaps such facts as the villain's capacity to take legal action against third persons； and his position in the criminal and police law； ought not to be called survivals。 They are certain sides of the subject。 They are indissolubly allied to such features of the civil law as the occasional recognition of villainage as a protected tenure； and the villain's admitted standing against the lord when the lord had bound himself by covenant。 In the light of these facts villainage assumes an entirely different aspect from that which legal theory tries to give it。 Procedural disability comes to the fore instead of personal debasement。 A villain is to a great extent in the power of his lord； not because he is his chattel； but because the courts refuse him an action against the lord。 He may have rights recognised by morality and by custom； but he has no means to enforce them； and he has no means to enforce them because feudalism disables the State and prevents it from interfering。 The political root of the whole growth becomes apparent； and it is quite clear； on the one hand； that liberation will depend to a great extent on the strengthening of the State； and； on the other hand； that one must look for the origins of enslavement to the political conditions before and after the Conquest。 One undoubtedly encounters difficulties in tracing and grouping facts with regard to those elements of freedom which appear in the law of villainage。 Sometimes it may not be easy to ascertain whether a particular trait must be connected with legal progress making towards modern times； or with the remnants of archaic institutions。 As a matter of fact； however； it will be found that； save in very few cases； we possess indications to show us which way we ought to look。 Another difficulty arises from the fact that the law of this period was fashioned by kings of French origin and lawyers of Norman training。 What share is to be assigned to their formal influence？ and what share comes from that old stock of ideas and facts which they could not or would not destroy？ We may hesitate as to details in this respect。 It is possible that the famous paragraph of the so…called Laws of William the Conqueror； prescribing in general terms that peasants ought not to be taken from the land or subjected to exactions；（3*） is an insertion of the Norman period； although the great majority of these Laws are Saxon gleanings。 It is likely that the notion of wainage was worked out under the influence of Norman ideas； the name seems to show it； and perhaps yet more the fact that the plough was specially privileged in the duchy。 It is to be assumed that the king； not because he was a Norman but because he was a king； was interested in the welfare of subjects on whose back the whole structure of his realm was resting。 But the influence of the strangers went broadly against the peasantry； and it has been repeatedly shown that Norman lawyers were prompted by anything but a mild spirit towards them。 The Dialogus de Scaccario is very instructive on this point； because it was written by a royal officer who was likely to be more impartial than the feudatories or any one who wrote in their interest would be； and yet it makes out that villains are mere chattels of their lord； and treats them throughout with the greatest contempt。 And so； speaking generally； it is to the times before the Conquest that the stock of liberty and legal independence inherent in villainage must be traced； even if we draw inferences merely on the strength of the material found on this side of the Conquest。 And when we come to Saxon evidence； we shall see how intimately the condition of the ceorl connects itself with the state of the villain along the main lines and in detail。 The case of ancient demesne is especially interesting in this light。 It presents； as it were； an earlier and less perfect crystallisation of society on a feudal basis than the manorial system of Common Law。 It steps in between the Saxon soc and tun on the one hand； and the manor on the other。 It owes to the king's privilege its existence as an exception。 The procedure of its court is organised entirely on the old pattern and quite out of keeping with feudal ideas； as will be shown by…and…by。 Treating of it only in so far as it illustrates the law of status； it presents in separate existence the two classes which were fused in the system of the Common Law； villain socmen are carefully distinguished from the villains； and the two groups are treated differently in every way。 A most interesting fact； and one to be taken up hereafter； is the way of treating the privileged group as the normal one。 Villain socmen are the men of ancient demesne； villains are the exception； they appear only on the lord's demesne； and seem very few； so far as we can make a calculation of numbers。 Villain socmen enjoy a certainty of condition which becomes actual tenant…right when the manor passes from the crown into a private lord's hand。 As to its origin there can be no doubt ancient demesne is traced back to Saxon times in as many words and by all our authorities。 A careful analysis of the law of ancient demesne may even give us valuable clues to the condition of the Saxon peasantry。 The point just noticed； namely； that the number of villain socmen is exceedingly large and quite out of proportion to that of other tenants； gives indirect testimony that the legal protection of the tenure was not due merely to an influx of free owners deprived of their lands by conquest。 This is the explanation given by Bracton； but it is not sufficient to account for the privileged position of almost all the tenants within the manor。 A considerable part of them surely held before the Conquest not as owners and not freely； but as tenants by base services； and their fixity of tenure is as important in the constitution of ancient demesne as is the influx of free owners。 If this latter cause contributed to keep up the standard of this status； the former cause supplied that tradition of certainty to which ancient demesne right constantly appeals。 Another point to be kept firmly in view is that the careful distinction kept up on the ancient demesne between villain socmen and villains； proves the law on this subject to have originated in the general distribution of classes and rights during the Saxon period； and not in the exceptional royal privilege which preserved it in later days； I mean； that if certainty of condition had been granted to the tenantry merely because it was royal tenantry； which is unlikely enough in itself； the certainty would have extended to tenants of all sorts and kinds。 It did not； because it was derived from a general right of one class of peasants to be protected at law； a right which did not in the least preclude the lord from using his slaves as mere chattels。 And so I may conclude： an investigation into the legal aspect of villainage discloses three elements in its complex structure。 Legal theory and political disabilities would fain make it all but slavery； the manorial system ensures it something of the character of the Roman colonatus； there is a stock of freedom in it which speaks of Saxon tradition。
NOTES：
1。 Brunner； Entstehung der Schwurgericht； has made an epoch on the discussion of this phenomenon。
2。 I shall treat at length of the Norman Conquest in my third essay。
3。 Leg。 Will。 Conq。 i； 29 （Schmid； p。 340）。
Chapter 5
The Servile Peasantry of Manorial Records
It would be as wrong to restrict the study of villainage to legal documents as to disregard them。 The jurisprudence and practice of the king's courts present a one…sided； though a very important view of the subject； but it must be supplemented and verified by an investigation of manorial records。 With one class of such documents we have had already to deal； name
