vill2-第49章
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ws exactly on what days he bas to appear personally or by representative at ploughings and reapings； how many loads he is bound to carry； and how many eggs he is expected to bring at Easter；（1*） in most cases he knows also what will be required from him when he inherits from his father or marries his daughter。 This customary arrangement of duties does not find any expression in common law； and vice versa the rule of common law dwindles down in daily life to a definition of power which may be exercised in exceptional cases。 The opposition between our two sets of records is evidently connected in this case with their different way of treating facts。 Manorial extents and inquests give in themselves only a one…sided picture of mediaeval village life； because they describe it only from the point of view of the holding； people who do not own land are very seldom noticed； and among the population settled on the land only those persons are named who 'defend' the tenement in regard to the lord。 Only the chief of the household appears； this is a matter of course。 He may have many or few children； many or few women engaged on his plot： the extent will not make any difference in the description of the tenement and of its services。 But although very incomplete in this important respect； manorial records allow us many a glimpse at the process which was preparing a great change in the law Hired labourers are frequently mentioned in stewards' accounts； and the 'undersette' and 'levingmen' and 'anelipemen'（2*） of the extents correspond evidently to this fluctuating population of rural workmen and squatters gathering behind the screen of recognised peasant holders。 The very foundation of the mediaeval system； its organisation of work according to equalised holdings and around a manorial centre； is in course of time undermined by the process of commutation。 Villains are released from ploughings and reapings； from carriage…duties and boon work by paying certain rents； they bargain with the lord for a surrender of his right of arbitrary taxation and arbitrary amercement； they take leases of houses； arable and meadows。 This important movement is directly noticed by the law in so far as it takes the shape of an increase in the number of freeholders and of freehold tenements； charters and instruments of conveyance may be concerned with it。 But the process is chiefly apparent in a standing contradiction with the law。 Legally an arrangement with a villain either ought not to bind the lord or else ought to destroy his power。 Even in law books； however； the intermediate form of a binding covenant with the villain emerges； as we have seen； in opposition to the consistent theory。 In practice the villains are constantly found possessed of 'soclands；' 'forlands；' and freeholds。 The passage from obligatory labour to proprietary rights is effected in this way without any sudden emancipation； by the gradual accumulation of facts which are not strictly legal and at the same time tend to become legal。 Again； the Royal courts do not know anything about 'molmen；' 'gavelmen；' or 'censuarii；' They keep to the plain distinction between free and bond。 Nevertheless； all these groups exist in practice； and are constantly growing in consequence of commutation。 The whole law of status gets transformed by their growth as the law of tenure gets transformed by the growth of leases。 Molmen； though treated as villains by Royal courts； are already recognised as more 'free' than the villains by manorial juries。 The existence of such groups testifies to something more than a precarious passage from service to rent； namely to a change from servile subjection to a status closely resembling that of peasant freeholders； and actually leading up to it。 In one word； our manorial records give ample notice of the growth of a system based on free contract and not on customary labour。 But the old forms of tenure and service are still existent in law； and the contradiction involved in this fact is not merely a technical one： it lies at the root of the revolutionary movement at the close of the fourteenth century。 In this manner facts were slowly paving the way towards a modification of the law。 But now； turning from what is in the future； to what is in the past； let us try to collect those indications which throw light on the condition of things preceding feudal law and organisation。 The one…sided conception of feudal law builds up the entire structure of social divisions on the principle of the lord's will。 Custom； however sacred； is not equivalent to actionable right； and a person who has nothing but custom to lean upon is supposed to be at the will and mercy of his lord and of base or servile condition； But we find even in the domain of legal doctrine other notions less convenient for the purpose of classification； and more adapted to the practice of daily life。 Servile persons and servile land are known from the nature of the services to which they are subject。 This test is applied in two directions： （1） regular rural work； 'with pitch…fork and flail；' is considered servile； and this would exclude the payment of rents and occasional help in the performance of agricultural labour； （2） certain duties are singled out as marking servitude because they imply the idea of one person being owned by another； and this would exclude subjection derived from the possession of land； however burdensome and arbitrary such subjection might be。 Turning next to manorial records； we find these abortive features of feudal law resting on a very broad basis。 Only that land is considered servile which owes labour； if it renders nothing but rent it is termed free。 We have here no mere commutation： the notion is an old one； and rather driven back by later law than emerging from it。 It is natural enough that the holder of a plot is considered free if his relations with the lord are restricted to occasional appearances at court； occasional fines； and the payment of certain rents two or three times a year。 It is natural enough that the holder of another plot should be treated as a serf because he is bound to perform work which is fitted as a part into the arrangement of his lord's husbandry； and constantly brought under the control and the coercive power of the steward。 This matter…of…fact contrast comes naturally to the fore in documents which are drawn up as descriptions of daily transactions and not as evidence for a lawsuit。 But the terms 'free' and 'servile' are not used lightly even in such documents。 We may be sure that manorial juries and bailiffs would not have been allowed to displace at their pleasure terminological distinctions which might lead people to alter their legal position。 The double sense of these terms cannot be taken as arranging society under the same two categories and yet in two entirely different ways： it must be construed as implying the two sides of one and the same thing； the substance in manorial records and the formal distinction in legal records。 That is to say； when the test of legal protection was applied； the people who had to perform labour were deprived of it and designated as holding in villainage； and to the people who paid rent protection was granted and they were considered as holding freely。 For this very reason the process of commutation creating mol…land actually led to an increase in the number of free tenancies。（3*） The courts made some attempts to utilise personal subjection as a distinctive feature of born villains。 If it had been possible to follow out the principle； we should have been able to distinguish between villains proper and men of free blood holding in villainage。 The attempt miscarried in practice； although the King's courts were acting in this case in conjunction with local custom and local juries。 The reason of the failure is disclosed by manorial documents。 Merchet； the most debasing incident of personal villainage； appears so widely spread in the Hundred Rolls that there can be no question； at least at the close of the thirteenth century； of treating it as a sure test of personal subjection。 We cannot admit even for one moment that the whole peasant population of entire counties was descended from personal slaves； as the diffusion of me
