vill2-第9章
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nuance of the services； although the procedure for establishing a forfeiture in that case would be a far more elaborate one。 And it must be understood that Bracton's deduction by no means rests on the single case before us。 He appeals also to a decision of William Raleigh； who granted an assize of mort d'ancestor to a free man holding in villainage。* Unfortunately the original record of this case has been lost。 The decision in a case of 1225 goes even further。 It is an assize of novel disseisin brought by a certain William the son of Henry against his lord Bartholomew the son of Eustace。 The defendant excepts against the plaintiff as his villain； the court finds； on the strength of a verdict； that he is a villain； and still they decide that William may hold the land in dispute； if he consents to perform the services； if not； he forfeits his land。* Undoubtedly the decision before us is quite isolated； and it goes against the rules of procedure in such cases。 Once the exception proved； nothing ought to have been said as to the conditions of the tenure。 Still the mistake is characteristic of a state of things which had not quite been brought under the well…known hard and fast rule。 And the best way to explain it is to suppose that the judges had in their mind the more familiar case of free men holding in villainage； and gave decision in accordance with Martin of Bestenover v。 Montacute； and the case decided by Raleigh。* All these instances go clean against the usually accepted doctrine； that holding in villainage is the same as holding at the will of the lord： the celebrated addition 'according to the custom of the manor' would quite fit them。 They bring home forcibly one main consideration； that although in the thirteenth century the feudal doctrine of non…interference of the state between lord and servile tenantry was possessed of the field； its victory was by no means complete。 Everywhere we come across remnants of a state of things in which one portion at least of the servile class had civil rights as well as duties in regard to the lord。 Matters were even more unsettled as to customs and services in their relation to status and tenure。 What services； what customs are incompatible with free status； with free tenure？ Is the test to be the kind of services or merely their certainty？ Bracton remarks that the payment of merchet； i。e。 of a fine for giving away one's daughter to be married； is not in keeping with personal freedom。 But he immediately puts in a kind of retractation；* and indeed in the case of Martin of Bestenover it was held that the peasant was free although paying merchet。 To tenure； merchet； being a personal payment； should have no relation whatever。 In case of doubt as to the character of the tenure； the inquiry ought to have been entirely limited to the question whether rents and services were certain or not；* because it was established that even a free tenement could be encumbered with base services。 In reality the earlier practice of the courts was to inquire of what special kind the services and customs were； whether merchet and fine for selling horses and oxen had been paid； whether a man was liable to be tallaged at will or bound to serve as reeve； whether he succeeded to his tenancy by 'junior right' （the so…called Borough English rule）； and the like。 All this was held to be servile and characteristic of villainage。* I shall have to discuss the question of services and customs again； when I come to the information supplied by manorial documents。 It is sufficient for my present purpose to point out that two contradictory views were taken of it during the thirteenth century； 'certain or uncertain？' was the catchword in one case； 'of what kind？' in the other。 A good illustration of the unsettled condition of the law is afforded by the case Prior of Ripley v。 Thomas Fitz…Adam。 According to the Prior； the jurors called to testify as to services and tenures had； while admitting the payment of tallage and merchet； asked leave to take the advice of Robert Lexington； a great authority on the bench； whether a holding encumbered by such customs could be free。 The subject is important； not only because its treatment shows to what extent the whole law of social distinctions was still in a state of fermentation； but also because the classification of tenures according to the nature of customs may afford valuable clues to the origin of legal disabilities in economic and political facts。 The plain and formal rule of later law； which is undoubtedly quite fitted to test the main issue as to the power of the lord； is represented in earlier times by a congeries of opinions； each of which had its foundation in some matter of fact。 We see here a state of things which on the one hand is very likely to invite an artificial simplification； by an application of some one…sided legal conception of serfdom； while on the other hand it seems to have originated in a mixture and confusion of divers classes of serfs and free men； which shaded off into each other by insensible degrees。 The procedure in trials touching the question of status was decidedly favourable to liberty。 To begin with； only one proof was accepted as conclusive against it absolute proof that the kinsfolk of the person claimed were villains by descent。* The verdict of a jury was not sufficient to settle the question；* and a man who had been refused an assize in consequence of the defendant pleading villainage in bar had the right notwithstanding such decision to sue for his liberty。 When the proof by kinship came on； two limitations were imposed on the party maintaining servitude： women were not admitted to stand as links in the proof because of their frailty and of the greater dignity of a man； and one man was not deemed sufficient to establish the servile condition of the person claimed。* If the defendant in a plea of niefty； or a plaintiff in an action of liberty； could convincingly show that his father or any not too remote ancestor had come to settle on the lord's land as a stranger； his liberty as a descendant was sufficiently proved。* In this way to prove personal villainage one had to prove villainage by birth。 Recognition of servile status in a court of record and reference to a deed are quite exceptional。 The coincidence in all these points against the party maintaining servitude is by no means casual； the courts proclaimed their leaning 'in favour of liberty' quite openly； and followed it in many instances besides those just quoted。 It was held； for instance； that in defending liberty every means ought to be admitted。 The counsel pleading for it sometimes set up two or three pleas against his adversary and declined to narrow his contention； thus transgressing the rules against duplicity of plea 'in favour of liberty。'* In the case of a stranger settling on the land； his liberty was always assumed； and the court declined to construe any uncertainty of condition against him。4 When villainage was pleaded in bar against a person out of the power of the lord； the special question was very often examined by a jury from the place where the person excepted to had been lately resident； and not by a jury from the country where he had been born。* This told against the lord； of course； because the jurors might often have very vague notions as to the previous condition of their new fellow…countryman。* It would be impossible to say in what particular cases this partiality of the law is to be taken as a consequence of enlightened and humanitarian views making towards the liberation of the servile class； and in what cases it may be traced to the fact that an original element of freedom had been attracted into the constitution of villainage and was influencing its legal development despite any general theory of a servile character。 There is this to be noticed in any case； that most of the limitations we have been speaking of are found in full work at the very time when villainage was treated as slavery in the books。 One feature； perhaps the most important of all； is certainly not dependent on any progress of ideas； however complete the lord's power over the serf may have been； it was entirely bound up with the manorial organisation。 As soon as the villain had
