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
In the work of simplifying conditions artificially the lawyers had
several strong reagents at their disposal. The mighty influence of Roman
law has been often noticed, and there can be no doubt that it was
brought to bear on our subject to the prejudice of the peasantry and to
the extinction of their independent rights. It would not have been so
strong if many features of the vernacular law had not been brought half
way to meet it. Norman rules, it is well known, exercised a very potent
action on the forms of procedure[245]; but the substantive law of status
was treated very differently in Normandy and in England, and it is not
the influx of Norman notions which is important in our case, but the
impetus given by them to the development of the King's Courts. This
development, though connected with the practice of the Duchy, cannot be
described simply or primarily as Norman. Once the leaven had been
communicated, English lawyers did their own work with great independence
as well as ingenuity of thought, and the decision of the King's Court
was certainly a great force. I need not point out again to what extent
the law was fashioned by the writ procedure, but I would here recall to
attention the main fact, that the opposition between 'free' and 'unfree'
rested chiefly on the point of being protected or not being protected by
the jurisdiction of the King's Court.
[Social bias of legal theories.]
If we examine the action of lawyers as a whole, in order to trace out,
as it were, its social bias, we must come to the conclusion that it was
exercised first in one direction and then in the opposite one. The
refusal of jurisdiction may stand as the central fact in the movement in
favour of servitude, although that movement may be illustrated almost in
every department, even if one omits to take into account what may be
mere instances of bad temper or gross partiality. But the wave begins to
rise high in favour of liberty even in the thirteenth century. It does
not need great perspicuity to notice that, apart from any progress in
morals or ideas, apart from any growth of humanitarian notions, the law
was carried in this direction by that development of the State which
lays a claim to and upon its citizens, and by that development of social
intercourse which substitutes agreement for bondage. Is it strange that
the social evolution, as observed in this particular curve, does not
appear as a continuous _crescendo_, but as a wavy motion? I do not think
it can be strange, if one reflects that the period under discussion
embraces both the growth and the decay of feudalism, embraces, that is,
the growth of the principle of territorial power on the ruins of the
tribal system and also the disappearance of that principle before the
growing influence of the State.
[Influence of conquest.]
Public-domain text, read in full here on John Shaqi.
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