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Les diagrammes suivants illustrent la mdthode. 1 2 3 4 5 6 32X ^H i iMM &i a t F j g ltl THE CHARACTER OF VILLEIN TENURE/ Students of Economic History have of late years begun to awake to the fact that during the period of the Tudors, and over a considerable area of England, there took place an agrarian revolution which altered the whole aspect of country life. This revolution was the substitu- tion of pasture for tillage, of pasture with large and enclosed farms for tillage on the old intermixed or open-field system. Its significance we still further appreciate when we notice that, after a time, the new generation of farmers set- tled down to what is known as a " convertible husbandry." To devote their lands continuously to sheep-breeding did not turn out quite so profitable as was at first expected ; and it was seen to be expedient to plough up the pasture every few years for a harvest or two. What took place at this time in England was, accordingly, only the English phase of the great movement from open-field tillage to enclosed convertible husbandry, which manifested itself during the same or a somewhat later period over a large part of Western Europe. I propose in this paper to deal with but a part of this revolution, and that in only one of its aspects. It has been recently said by an eminent writer,^ that while there is plenty of work still to be dc^ on earlier social history, for this middle period Httlr > can be desired. Its main features, we are told, are a. . uy quite clear ; the materials necessary for the student's purpose have been printed, and are easily accessiblf^. But as soon as we begin to look ' A paper read before the Economic Section of the British Association at its Leeds Meeting, September 5, 1890. ' Sir Frederick Pollock, in a paper on " Early Landholding," in Macmillan's Magazine. For April, 1890. (412) Tim Character ok Villein Tenure. 413 more minutely into the accounts of the matter which are to be found in our usual authorities, we discover that this is somewhat too contented a view. For— to mention but one reason for misgiving— it maybe doubted whether we have yet quite incorporated into our current thoughts the picture of media:val husbandry which we owe to Mr. Scebohm. Or rather, though we may have grasped the manorial or- ganization of the thirteenth century, when we get to Tudor times we are apt somehow to imagine that we are in the world of to-day. " Farm " and " Field " and " Tenant " sound as if we knew all about them ; the chief difference that occurs to us is that there were a good many more small farmers than there are now ; and we make them picturesque by calling them "yeomen." But when we come to read the documents of the sixteenth century, we hardly get beyond the well-worn quotation about Latimer's father— which everybody must be heartily sick of by this time— without suspecting that familiar terms did not ex- actly denote then what they denote now. Tedious as it may be, we have to go back to the rudiments— the manor and its constituent parts : first the land in demesne, culti- vated bv the lord or his bailiff for the lord's use ; then the land in freehold; then, and most important, the land in vil- leinage or "customary" tenure; next, the separate pasture closes; next, the meadows; and lastly, the common pasture and waste. The organization of rural society had become much more complicated since the thirteenth century ; the frequent partitions of manors, on the one side, and the oc- cupation of villein or customary holdings by men of posi- tion and wealth, on the other, had gone far to destroy the symmetry of the manorial system. Yet modern history is much more mediaeval than we suppose. Our only safe course is to take the normal manor for our guide; and when we are told, for instance, of a case of " enclosure," to ask, which of these diverse elements of the manor did it affect, and by what means was it able to affect them ? Bl- /i4 '[• .< I. Hi 414 Annals of the American Academy. According as we answer these questione must we conceive of the social consequences of the particular change. Each of the various ways in which the new sheep-farming was introduced needs to be investigated afresh ; and \ye may well begin with that which was most far-reaching in its consequences— the removal from the soil of the customary tenants. It is hardly necessary to explain that the kernel of the mediceval manor was a group of teuants, called in earlier times vti/cins, and known in the fifteenth and sixteenth cen- turies as customary tenants and copyholders. These copy- holders did not hold their arable lands in continuous stretches, in considerable pieces, such as we noiv call " fields," grouped round a farm-house ; they held them in a number of acre or half-acre strips, scattered over the two or three enormous areas, each some hundreds of acres in size, then known as "the fields." In earlier times no villein had more than from twenty to fifty (usually thirty) of these acres ; and no two .strips held by one man were contiguous : and, although a good deal of consolidation had since taken place, the customary holdings were still as a rule small, and held in scattered pieces. But if sheep- farming was to be introduced instead of tillage, it was necessary that the great stretches of " fields " should be, partially at least, hedged or fenced in ; and the open acres of corn, oats, or fallow superseded by pasture. And this did actually take place to a very considerable extent. But here a distinction has to be drawn. In the period from the accession of Elizabeth to the middle of the seventeenth century — when the agrarian revolution .stopped for a time, to be renewed a hundred years later— during that period enclosures were usually effected with the consent of all the land-holders concerned. The result, so far as regards the tenants, was only that they now obtained, instead of some thirty scattered strips, which they had been obliged to cul- tivate in a particular way, four or five fields of six or seven acres each, which they were free henceforward to employ The Character of Villein Tenure. 415 as they pleased. Even these enclosures had further and less satisfactory consequences, so far as other classes of the agricultural population were concerned ; though on these w'e cannot now dwell. But in the earlier part of the same movement, during the period which may be roughly defined as from 145010 1550, enclosure meant to a large extent the actual dispossession of the copyhold or cus- tomary tenants by their manorial lords. This took place either in the form of the violent ousting of the sitting tenant, or of a refusal on the death of one tenant to admit the son, who in earlier centuries would have been treated as his natural successor. Proofs abound ; there is, for in- stance, the well-known passage in More's Utopia : " That on covetous and unsatiable cormoraunte .... maye compasse aboute and inclose many thousand akers of grounde together within one pale or hedge, the hus- bandmen be thrust owte of their owne, or els either by coueyne and fraude, or by violent oppression they be put besydes it, or by wrongs and iniuries they be so weried that they be compelled to sell all." ' Now the question which I wish especially to raise is this : What was the contemporary legal theory as to the position of the majority of customary tenants, and what was the practical effect of the theory ? It is usually held that, whatever may have been the original insecurity of the villein's position, his successor had by this time arrived at a security of tenure guaranteed by law ; so that when a lord ousted a customary tenant he knew he was violating the law, and trusted to the man's ignorance, or poverty, or fear, to escape its enforcement. It is sometimes granted that the law may not have been quite clear, but it is implied that, even if this were the case, that the lords did not know it. Both positions seem to me questionable, especially the > Ralph Robinson's translation, in Arber's Reprint, p. 41. Moore's own Latin text runs " cjiciuntur co/ani quidam suis." As to the nature of the clearances, see also Bacon, Hist, of Hon, VU. (Uohn ed. p. 359), and Select Works of Crowley (E. E.T.S.) p. 12a. I 416 Annals of the American .Academv. first. No doubt the dispossession of the tenants was re- garded by the tenants themselves and by most observers as a violation of customary right; no doubt also many tenants were evicted by the strong hand, the term of whose tenure was such that they could have maintained them- selves had they been able to go to law. But I hope to be able to show that, so far as the mass of copyhi^lders were concerned, they had, at the beginning of the period, no legal security ; that the lords knew this and acted upon it; and that the government knew it and were influenced by it. It follows from this that the law as we find it toward the end of the period in Coke, which does give the cus- tomary tenant a security of tenure, must be regarded as itself the product of the Sturm tind Drang of the preceding century and a half There was a time, we can hardly doubt, when the great body of villeins all over the Midland and Southern coun- ties^ held their lands on much the same terms, whatever these may have been. But with the growth of royal courts of justice, and of a body of professional lawyers, distinc- tions came to be drawn between the tenure of this or that villein, this or that district. All their holdings were still nominally "at the will of the lord," "ad voluntatem domini,"— a phrase which must surely have meant what it says at some time.^ But some were now expressly " for life," " ad vitam " ; while other customary tenants, still more fortunate, held "to themselves and their heirs."' The » This limit.Uion is added to avoid the necessity of considering for the present the peculiar tenures of some parts of Ealern and Western England. » There seems no reason, if we put aside the unproved " mark theory," why we should not agree with what Coke says in the matter, especially as he seems to point to a survival of the earlier conditions as cxi't ng in his own time: " These tenants in their birth, n.f wcUat the Customary Tcnuhts upon the Borders of Scot- land who have the name of Tcin.nts.W'CKC mere T»nants at will ; and tliough they kept the Customs inviolate, yet the Lord might, s.^ns control!, eject them." —Complete Copyholder. Sec. 32, cd. i663, p. O7. 8 This isfound as e.irly as ryw«wrwBW- The Character of Villein Tenure.. 433 in one or two cases we get glimpses of wholesale evictions. Thus, " within the vill of Choysell the houses aforetime of John Willyers are laid waste, and the inhabitants have departed ; and there pertain to the said houses 300 acres of land, whereof 30 are (now ?) arable, and the rest are in pasture. And the houses of Burton Lazars in the same vill are laid waste, and the inhabitants have departed; and there belong to the same houses 300 acres of land, whereof 40 are (still ?) ploughed,, but the rest are in pasture : and by this downfall the church has fallen into ruins."^ Instances of this kind show us that the language of the statutes concerning " the pulling down and destruction of toiuns," so that where once two hundred persons had been employed," there were now but two or three herdsmen, is no exaggeration, but a sober description of what had really taken place. And yet the Acts never imply that these evictions were in violation of the rights of the tenants. They lay down that " houses of husbandry " ought to be maintained, on the ground that it is desirable that men should find employment; but they never provide means by which the copyholders could enforce their legal rights, if they had any. The natural explanation would seem to be that they had none. My conclusion, then, is this: Of late years our concep- tions of mediaeval history have been unduly colored by a theory which, as we are now finding, has yet to be proved — the theory, namely, that the group of customary tenants represent an originally free " mark " community, and that the powers of lords of manors are so many encroachments et posuit ad pasturam xii acras quae fuerunt in cultura post tempus comtnissionis, et tenementum illuil ticcidit." • It may be well to give the text of the second paragraph : " Item Mansiones de Burton Lazars in villa predicta devastantur, et inhabitantes ibidem recesserunt ; et spectant ad cadem mansiones ceo aerae terrae, quarum x arantur, rosiduae vero in pastura ; et per docasum predictum ecclesia ibidem dccidit." We are not sur- prised to find that according to the Imperial Gazetteer, Chosely has now but one house and a population of seven. • See especially 4 Hen. VII. c. 19, and 7 Henry VIII. c. i. Statutes of the Realm, ii. p. 542; iii. p. 176. 424 Annals of the American Academy. which have only acquired a legal authority during the last five or six centuries. The proposition seems far more tenable that, during historical times and until compara- tively modern days, the cultivators of the soil were always in a condition of serfdom, and held their lands at the arbi- trary will of their lords. For centuries the lord knew no other way of getting his land cultivated, and had no wish to get rid of a tenant ; whenever he did so, it was alto- gether exceptional. But with the tendency to limitation and definition so characteristic of the feudal period, custom tended to harden into law; and it was just on the point of becoming law when a change in the economic situation, the increasing advantage of pasture over tillage, prompted the lords to fall back on their old rights. Then followed a struggle between a legal theory becoming obsolete, but backed by the influence of the landowners, and a custom on its ivay to become law, backed by public sentiment and by the policy of the Government. Much the same tendencies were at work in other coun- tries, especially in Germany. But there the sixteenth cen- tury also witnessed a wide extension of the influence of Roman law. The Roman law, with its sharply-defined conception of property, came to the aid of the lords; and this additional weight was just sufficient in many districts to turn the balance. Thus, the Bavarian code of 1518 laid down that the peasant had no hereditary right to his holding, and not even a life-interest unless he could show some documentary evidence.' In Mecklenburg a decree of 1606 declared that the peasants were not evtphytcutae but coloni, whom their lords could compel to give up the lands allotted to them, and who could claim no right of inheri- tance even when their ancestors had held the land from time immemorial." In Holstein, again, a great number of the peasants were expelled from their holdings, and such • Roscher, «. s., pp. 82. » Quoted in Bilguer, Liindliche Besitzverhaltnisse m Mecklenburg-Sdiwerin, pp. 73 i from Boll, Mecklcnburgische Geschichte, p. 354. i. «nMfMMir»«««lHuMtawMn^ Nt.f»0C»r»W>O|»'e« The Character of Villein Tenure. 42s •ing the far more ompara- i always the arbi- knew no no wish ras alto- mitation I, custom he point situation, rompted illowed a it backed 7« on its d by the ler coun- snth cen- uence of y-defined rds; and ■ districts of 1518 bt to his uld show decree of aitac but the lands jf inheri- ind from lumber of and such rg-Schwerin, as remained became tenants at will.' In England, on the contrary, custom and public sentiment and royal policy had no such counteracting influence to contend with, and the outcome of the contest was the law as we find it in Coke. But even there, in many of Coke's phrases, we can discern how recent and how severe the struggle had been.^ Before I sit down I should like to express the feeling which, I am sure, from time to time comes over those who are working at economic history. It is of how veiy little we as yet know about it. I will not venture to discuss what may be the value of historical work as an aid in handling the problems of the present; nor to distinguish between the half a dozen different things which are commonly con- fused together under the name of "the historical method." Our President, in the treatise we have all been reading, has held out the olive branch,^ and even those whose general position is most undeductive will do well do listen to his overtures of peace. But he confesses that it is, after all, very much a matter of temperament whether a man works at economic history or economic theory.* Well, if a time should ever come — I do not say it ought — when, after puzzling over "final utility" and "disutility," it should, even mistakenly, occur to anyone that the abstract method scarcely gives him results sufficiently tangible to satisfy his particular temperament, he will not do amiss to remember that there is an alternative field of work. Putting it on what some will regard as the lowest ground— the satisfac- tion of intelligent curiosity — it is not worth while to try to remove some part of the veil which still conceals from us the life of our forefathers. W. J. Ashley. University of Toronto. • Hanssen, Agrarhistorische Abhandlungen, i. pp. 431-2. ' l^.g. " But NOW mai'istra rerum exjcrienua ^ath made this clear." Co. Litt. 60 b : and such phrases as " Note that Littletcn alloweth, " etc., ii. 6a a, 63 b. ' Marshall, Principles of Economics, especially p. 70. « Ibid., p. 93. 98 ^