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a locus classicus: "But Brian, chief justice, said that his opinion hath always been, and ever shall be, that if such tenant by custom paying his services be ejected by the lord, he shall have an action of trespass against him, H. 21 Ed. IV. And so was the opinion of Danby, chief justice, in 7 Ed. IV. For he saith that tenant by the custom is as well inheritor to have his land according to the custom, as he which hath a freehold at the common law." But it is significant that this passage does not appear either in an edition of Littleton, printed about the year of his death, or in the issues of Pynson, in 1516 and 1525. It occurs for the first time in the edition of Redmayne, in 1530. What this would seem to indicate is, that the point of law was even in 1530 not yet absolutely determined. We may fairly conjecture that the editor of that year shared in the general indignation which the evictions excited, and that he disinterred a couple of forgotten dicta half a century old, and gave them a place in what had become an established text-book. It does not follow from their appearing where they are, that during all that half century these dicta had been well-settled law. The very form of Brian's opinion-which, it will be noticed, is ascribed to as late a date as 1482, and concerns what we should regard as the most extreme display of arbitrary power, the ejectment of an actual tenant-marks it as personal and as consciously opposed to a general belief: "his opinion hath always been and ever shall be."
Some light may be thrown on these utterances of Yorkist judges by a consideration of the position of the Yorkist government. The Lancastrian rule had received the support of the landed gentry: the Yorkists were the party of the towns and of the lower classes. When we find that the precisely similar eviction of peasants which went on in many parts of Germany in the sixteenth century was
1 In the law-French original; "Mes Brian chiefe justice dit, que son opinion ad touts foits este, et enquez serra, si tiel tenant per le custome, etc."-Co. Litt.,
only prevented from running its full course because the princes, for their own interests, interfered to hinder it,' it does not seem extravagant to ascribe to the Yorkist government, and the judges as part of it, a desire to modify the law in such a way as to increase their own popularity, and weaken their enemies the squirearchy. How far they succeeded is an altogether different matter.
That the Yorkist judgments did but little to stem the current of change is manifest from what took place in later reigns. Among the most detailed pieces of information which we possess is a return made in 1517 by the Commissioners of Inquest appointed in that year. Many of the entries simply run as follows: "That A B, knight (or gentleman, or clerk) has enclosed and put in pasture so many acres in the vill (or township) of C, which were under tillage during the period of the commission." We are told nothing as to the tenure of the land in question. But it is observable that the areas are generally either 30 acres or fractions or multiples of 30; so that they probably represent wholes or portions of virgates-the ordinary customary holding. Another series of entries run: "A B has in the vill of C a tenement with so many acres (e. g., 20, 25, 37, 40) of land, which were in tillage since the time of the commission; and now that tenement is fallen, and the land is turned to pasture." This looks like the evidence of a customary tenant, who still says he "has" the land, though his acres have been taken away from him. In one such instance we even find the phrase “a certain person has enclosed them"; a hint which the witness was perhaps too frightened to explain. More interesting still,
1 Roscher, Geschichte der National Oekonomik, pp. 122-3.
2 Brit. Mus., Lansdowne MSS., i. p. 153. A very short and imperfect abstract is given at the end of the second volume of Schanz, Englische Handelspolitik. I hope soon to be able to print the whole.
3 Thus, among the first few cases are 60 acres, 30, 60, 22 (= virgate?); and iater, in 5 vills following one another, we have 120, 60, 60, 60, 45.
* In Haughboys Magna, in Hund. Harpyngham, Co. Norf: "Stephanus Bolt babet unum tenementum cum xl acris terrae, de quibus quidam xl acras inclusit,
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 towns," 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 conceptions of medieval 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 commissionis, et tenementum illud decidit."
1 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 eadem mansiones ccc acrae terrae, quarum x arantur, residuae vero in pastura; et per decasum predictum ecclesia ibidem decidit." We are not surprised 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.
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 comparatively modern days, the cultivators of the soil were always in a condition of serfdom, and held their lands at the arbitrary 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 altogether 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 way to become law, backed by public sentiment and by the policy of the Government.
Much the same tendencies were at work in other countries, especially in Germany. But there the sixteenth century 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.1 In Mecklenburg a decree of 1606 declared that the peasants were not emphyteutae but coloni, whom their lords could compel to give up the lands allotted to them, and who could claim no right of inheritance even when their ancestors had held the land from time immemorial.2 In Holstein, again, a great number of the peasants were expelled from their holdings, and such
1 Roscher, u. s., pp. 82.
2 Quoted in Bilguer, Ländliche Besitzverhältnisse in Mecklenburg-Schwerin, pp. 73; from Boll, Mecklenburgische Geschichte, p. 354.
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.2
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 very 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 confused 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 satisfaction 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.
1 Hanssen, Agrarhistorische Abhandlungen, i. pp. 431-2.
2 E. g. "But NOW magistra rerum experientia hath made this clear." Co. Litt. 60 b and such phrases as Note that Littleton alloweth," etc., ib. 62 a,