Villainage in England: Essays in English Mediaeval HistoryVinogradoff, Paul
History
Villainage in England: Essays in English Mediaeval History
Vinogradoff, Paul
Villeinage -- England -- History -- To 1500
The material hitherto collected and discussed enables us to distinguish
different layers in its formation. To begin with, the influence of
lawyers must be taken into account. This is at once to be seen in the
treatment of distinctions and divisions. The Common Law, as it was
forming itself in the King's Court, certainly went far to smoothe down
the peculiarities of local custom. Even when such peculiarities were
legally recognised, as in the case of ancient demesne, the control and
still more the example of the Common Law Courts was making for
simplification and reducing them more or less to a generally accepted
standard. The influence of the lawyers was exactly similar in regard to
subdivisions on the vertical plane (if I may use the expression): for
these varieties of dependence get fused into general servitude, and in
this way classes widely different in their historical development are
brought together under the same name. The other side of this process of
simplification is shown where legal theory hardens and deepens the
divisions it acknowledges. In this way the chasm between liberty and
servitude increases as the notion of servitude gets broader. In order to
get sharp boundaries and clear definitions to go by, the lawyers are
actually driven to drop such traits of legal relations as are difficult
to manage with precision, however great their material importance, and
to give their whole attention to facts capable of being treated clearly.
This tendency may account for the ultimate victory of the quantitative
test of servitude over the qualitative one, or to put it more plainly,
of the test of certainty of services over the discussion of kind of
services. Altogether the tendency towards an artificial crystallisation
of the law cannot be overlooked.
[Roman law, Norman law, and royal jurisdiction.]
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