But the general current went Steadily against the peasantry.
The disruption of political unity at the time of the great civil war, and the systematic resumption of royal rights by Henry II, must have led to a settlement which impaired the social standing of the villain in the sense of feudal law. The immediate connexion between the lower class and the royal power could not be kept up during the troubled reign of Stephen, when England all but lapsed into the political dismemberment of the neighbouring continental states. Government and law were restored by Henry II, but he had to set a limit to his sphere of action in order that within that sphere he might act efficiently. The very growth of the great system of royal writs necessitated the drawing a sharp line between the people admitted to use them and those excluded from this benefit. One part of the revolution effected by the development of royal jurisdiction is very noticeable in our documents: the struggle between king and magnates as to the right of judging freeholders has left many traces, of which the history of the 'breve quod vocatur praecipe' is perhaps the most remarkable. But the victorious progress of royal jurisdiction in regard to freeholders was counter-balanced by an all but complete surrender of it in regard to villains. The celebrated tit. 29 of William the Conqueror's laws providing that the cultivators of the land are not to be subjected to new exactions, had lost its sense in the reign of Henry II, and so soon as it was settled that one class of tenants was to be protected, while another was to be unprotected in the king's court, the lawyers set themselves thinking over the problem of a definite and plain division of classes. Their work in this direction bears all the marks of a fresh departure. They are wavering between the formal and the material test: instead of setting up at once the convenient doctrine that villainage is proved by stock, and that in regard to service and tenure the question is decided by their certainty or uncertainty, they try for a long time to shape conclusive rules as to the kind of services and incidents which imply villainage, and for a time distinction between rural labour and rent becomes especially important.
On the whole, I think that an analysis of the legal and manorial evidence belonging to the feudal age leads forcibly to the conclusion that the general classification of society under the two heads of freeholders and villains is an artificial and a late one. A number of important groups appear between the two)and if we try to reduce them to some unity, we may say that a third class is formed by customary freeholders. Another way of stating the same thing would be to say, that the feudal notion of a freehold from which the modern notion has developed must be supplemented from the point of view of the historian by a more ancient form which is hidden, as it were, inside the class distinction of villainage. By the side of the freeholder recognised by later law there stands the villain as a customary freeholder who has lost legal protection. I do not think that the problems resulting from the ambiguous position of the feudal villain can be solved better than on the supposition of this 'third estate.'
NOTES:
1. Chandler, Court Rolls of Great Cressingham, p. 14: '20 solidi de toto Homagio quia recusaverunt preparare fenum domini. Debitum ponatur in respectum usque proximam curiam et interea scrutatur le Domesday.' A manorial extent is evidently meant. Comp.
Domesday of St. Paul's.
2. Ely Inq., Cotton MSS., Claudius, C. xi. 60, a: 'Anelipemen, Anelipewyman et coterellus manens super terram episcopi vel terram alicuius custumariorum suorum metet unam sellionem in autumpno ex consuetudine que vocatur luuebene.' Cp. 42, a, 'quilibet anlepiman et anlepiwyman et quiibet undersetle metet dimidiam acram bladi,' etc., and Ramsey, Cart.i 50. -- I have not been able to find a satisfactory etymological explanation of, anelipeman,; but he seems a small tenant, and sometimes settled on the land of a villain.
3. Of course in later times the test applied in drawing the line between freehold and baser tenure was much rather the mode of conveyance than anything else. The commutation into money rent of labour services due from a tenement, held by copy of court roll, (a commutation which in some cases was not effected before the fifteenth century), did not convert the tenement into freehold;had it done so, there would have been no copyhold tenure at the present day. But I am here speaking of the thirteenth century when this, conveyancing test, could not be readily applied, when the self-same ceremony might be regarded either as the feoffment by subinfeudation of a freehold tenant or the admittance of a customary tenant, there being neither charter on the one hand nor entry on a court roll on the other hand. Thus the nature of the services due from the tenement had to be considered, and, at least in general, a tenement which merely paid a money rent was deemed freehold.
The Open Field System and the Holdings My first essay has been devoted to the peasantry of feudal England in its social character. We have had to examine its classes or divisions in their relation to freedom, personal slavery, and praedial serfage. The land system was touched upon only so far as it influenced such classification, or was influenced by it.
