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Note A.: THE GENS. - Sir Henry Sumner Maine, Dissertations on Early Law and Custom 
Dissertations on Early Law and Custom, chiefly selected from Lectures delivered at Oxford (London: John Murray, 1883).
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The passage in the text respecting the ancient groups more or less answering to the still extant House Community has been somewhat altered since it was first printed in the ‘Nineteenth Century.’
It will be seen that, in the present state of these inquiries, I do not accept the account of the origin of the Gens given either by Mr. McLennan or by Mr. Morgan as universally true. I do not, for example, venture to dissent from the view which the Romans themselves took of the history of this peculiar group as known to themselves. What this view was may be inferred from a passage in Varro (‘De Linguâ Latinâ,’ viii. 4) which has been often quoted. The grammarian observes that there is a certain ‘agnation’ and ‘gentility’ among words. All the cases of the noun ‘Æmilius’ are descended from the nominative, just as all the members of the Gens Æmilia, all the Æmilii, are descended from a single original Æmilius. The Romans, therefore, regarded ‘gentility’ as a kinship among men not essentially different from ‘agnation.’ The Agnati were a group of actual or adoptive descendants, through males, from a known and remembered ancestor; the Gentiles were a similar group of descendants from an ancestor long since forgotten. It is true that some learned Romans seem to have perceived or thought that this Gentile relationship was to some extent fictitious; but, on the whole, they figured it to themselves as a form of kinship arising from descent, through males, from a common male ancestor. For reasons given in Chapter VII., I think that the Roman theory of the origin of the Roman Gens was at least probable. I see no reason to doubt that, though some of the gentes may have been fictitious, and others partially fictitious, there was a real core of agnatic consanguinity in most of them from the very first. The probable character of the fictions which clustered round this core may be gathered from the latter part of the preceding chapter. As Sir Alfred Lyall’s description of the mode in which groups simulating true tribal groups are formed is now printed in his ‘Asiatic Studies,’ I might have omitted my abridgment of it; but I retain it, because nothing seems to me to have more affected primitive society, and yet to have been more neglected by those who have theorised on it, than the imitative faculty which man has always possessed and which Sir Alfred Lyall has witnessed in actual employment by barbarous men.
On superficial consideration, we are apt to think that man’s mimetic faculty confines itself to matters of taste and personal habit. But, in truth, there is no successful, or conspicuous, or simply fashionable model which men, in the various stages of their progress, will not endeavour to imitate. The habit of political imitation, which has always been strong, still survives. ‘Make us a King to judge us, like all the nations,’ said the Israelites to Samuel (1 Sam. viii. 5). ‘Give us a Constitution to regulate our liberty, like that of one particular nation,’ is the corresponding modern and Western demand. If anybody is inclined to think that the process of copying models by entire societies is extinct, he should look at the way in which the British Constitution, which was once regarded by men more civilised than the English as an eccentric political oddity, has spread over nearly all Europe in less than seventy years. What Sir Alfred Lyall has shown from his own observations is the activity of this process of imitation in barbarous stages of society. Barbarous men will copy any successful or fashionable social type—a Tribe, a Sept, a Gens, a Village Community, the rules of ‘exogamy’ or ‘endogamy,’ the practice of infanticide or suttee. The agency by which the imitation is carried out is Fiction, sometimes of the most audacious kind, and through it an old order is constantly giving place to a new, and even broken hordes, mere miscellanies of men, are transmuted into definite social forms, which afterwards might seem as if they had all sprung together from roots deep in the Past.
The important lesson is that in sociological investigation it is never possible to discover more than the way in which the Type has been formed. If an institution is once successful, it extends itself through the imitative faculty, which is stronger in barbarous than in civilised man. It follows from this that no universal theory, attempting to account for all social forms by supposing an evolution from within, can possibly be true. A person perfectly ignorant of European history might suppose that the British Constitution and the Belgian Constitution, which are extremely like one another, were produced by analogous courses of development; yet the Belgian Constitution is really the copy of a copy, and the true growth of constitutionalism can only be traced in the history of the English Constitution.
The eminent writers I have named, if I have rightly understood them, are of opinion that the Roman Gens and all similar bodies are derived, without exception, from older groups still to be observed among savages. Among the so-called aborigines of Australia, among the North and South American Indians, and elsewhere, but always among slightly advanced communities, there are found groups of men and women tracing kinship exclusively through the female parent, and not through the male. Wherever they have any tradition of human ancestry, they trace their parentage, according to Mr. Morgan, to a common ancestress, and not to an ancestor. Their most distinct characteristics are that they mark their bodies with some common mark or ‘totem,’ and that the members of the same group never intermarry; and thus, as I have said in the text, they resemble a Sex rather than any other combination of human beings now familiar to us. On the other hand, among several barbarous or semi-barbarous communities we can still observe, and in the ancient history of several civilised or semi-civilised societies we can still detect, another class of groups having a close resemblance to the Roman Gens. They attribute their origin to a single common male ancestor, and they trace kinship through the male parent, real or adoptive, alone. The members of such groups much more frequently intermarry than do the members of the savage group; but occasionally they will not intermarry, at all events as a matter of theory. Such is the Hindu theory with reference to kinsmen and kinswomen belonging to the same Gotra, and there is some faint evidence of a similar feeling once existing in the Roman Gens. Even among savages, examples of groups tracing relationship through males are found intermingled with groups acknowledging female descents only; and Mr. Morgan insists that the first groups are merely the last in a transmuted shape, and that the transformation occurred everywhere, in the societies now civilised as well as in those still savage or barbarous. He several times thus describes the process: ‘Descent in the Gens was changed from the female to the male line,’ giving the name Gens indifferently to both groups.
Whatever the facts may have been, the language of Mr. Morgan seems to me to be open to much objection. One of these two groups did not really succeed the other, but the two co-existed from all time, and were always distinct from one another. We must be careful, in theorising on these subjects, not to confound mental operations with substantive realities. The ‘Agnatic’ Gentile groups, consisting of all the descendants, through males, of a common male ancestor, began to exist in every association of men and women which held together for more than a single generation. They existed because they existed in nature. Similarly the group consisting of the descendants, through women, of a single ancestress still survives, and its outline may still be marked out, if it be worth anybody’s while to trace it. What was new at a certain stage of the history of all or of a portion of the human race must have occurred, not in connection with the Gens, but in connection with the Family. There was always one male parent of each child born, but prevalent habits prevented his being individualised in the mind. At some point of time, some change of surrounding facts enabled paternity, which had always existed, to be mentally contemplated; and further, as a consequence of its recognition, enabled the kinship flowing from common paternity to be mentally contemplated also. As to the new facts which led to this recognition, all that, in my opinion, can be said of them is that they must have been such as again to give free play to an overmastering emotional force. Believing, as I do, that when Paternity reappeared, it reappeared in association with Power and Protection, I require no explanation of the fact that the kinship then recognised was kinship through male descents only.
Mr. Morgan’s application of the same name to the group mentally formed by attending solely to female descents and to the group constituted by looking only at male descents, seems to me unfortunate, because it tends to put out of sight the essential differences between the two. It is hard to see how the savage group can be self-existing, or indeed anything but an organisation for matrimonial purposes spread over a larger tribal community. The men born of the women belonging to it are themselves members of it, but the sons of these men leave it because they belong to the same group as their mothers. But the other group, formed by male descents from males, retains uninterruptedly the flower of its masculine strength, and this strength is constantly reproducing itself. Hence it tends to be a self-existent militant body. The famous exploit of the Fabian Gens at Rome, when they collectively attacked Veii, and were all but extirpated, is thus in itself perfectly credible. No doubt it is said that Australian savages will sometimes travel great distances to join in the quarrels of men having the same ‘totem;’ but these contests between people who have hardly any interests in common can be scarcely more than faction-fights between men wearing different colours. At the same time, I admit that further information of the precise way in which these peculiar organisations affect the practical life of the communities subject to them is greatly needed; and I regret that Mr. Morgan’s death prevented his communicating to me the result of some investigations on the subject which he had promised to make. As to the South Slavonian communities, the actual origin of many of them has been recorded or is otherwise known. With the limitations mentioned in the text, they are composed of the descendants, through males, of a common male ancestor.
I have said above that workers in the new field of investigation opened by the life and usages of savage societies seem to me to be under some temptation to take mental operations for substantive realities. Mr. Morgan, it is well known, considered that the savage habit of grouping relatives in large classes, without reference to degree—of grouping, for instance, a man’s father and his uncles together and calling them all his fathers, or forming his brothers and male cousins in one class and calling them all his brothers—is a relic of a state of society in which the relations of the sexes were very unlike those to which we are accustomed. Earnest, and indeed bitter, controversies have already arisen on this theory of Classificatory Relationship, and ingenious efforts are from time to time made to identify and recover the lost forms of marriage. May I suggest that it is at least worthy of consideration whether all or part of the explanation may not lie in an imperfection of mental grasp on the part of savages? The reader of Dr. Macfarlane’s remarkable ‘Analysis of Relationships of Consanguinity and Affinity’ (‘Journal of Anthropological Institute,’ xii. 1) will require no further proof that the comprehension of a large body of complex relationships demands a prodigious mental effort, even now requiring for its success the aid of a special notation. Some communities have surmounted a part of the difficulty by giving separate names to the nearer relationships, which is what Mr. Morgan calls the Descriptive System; but is there not ground for a suspicion that the savage classification is after all nothing more than a rude and incomplete attempt at the mental contemplation of a tolerably numerous tribal body? Is it more than a conception of complex relationship, reached by looking only at generations and by eliminating the idea of grade or degree? The rough view of a community as consisting of generations is common enough. It appears alike in the Hindu sacerdotal distribution of life into that of the Student, the Householder, and the Ascetic, and in the fine Greek song of the militant Dorians which makes the men boast that they are warriors, the children that they will be warriors some day, and the old men that they were warriors once.
THE DECAY OF FEUDAL PROPERTY IN FRANCE AND ENGLAND.
Considering the immense space which the first French Revolution filled in the eyes of the generation which immediately succeeded it, it is surprising at first sight that the search after authentic materials for an opinion concerning its causes, course, and character was for a while but slackly prosecuted. A virtually inexhaustible store of such materials existed in the cahiers—the statements of grievances which, according to the ancient practice of the French States-General, were sent up from every administrative subdivision of France to the body which became the first Constituent Assembly. Yet it is only in comparatively recent days that this and other similar stores of historical wealth have been critically examined. The story runs (I do not know whether it has found its way into print) that a well-known German historian once expressed his amazement at having pointed out to him in Paris some dusty bundles of papers, with the remark that they had lain undisturbed since they were deposited in the Archives on the reconstruction, after the close of the Reign of Terror, of the gloomily famous Committees of Public Salvation and General Security. ‘But you have classical histories of the Revolution,’ he said; ‘have not these documents been examined by their writers?’ ‘No,’ was the reply, ‘that is the dust of 1794.’
There is, however, some account to be given of this neglect, especially as regards the cahiers. One cause of it has undoubtedly been that preference for general explanations of phenomena which has always been a heavy drawback on French genius; and the general explanations of the first French Revolution current in France are a multitude. But another, and probably the most powerful, cause is the nearness of the Revolution itself. De Tocqueville, who first dug deep into the cahiers, and showed what great results might be obtained by thoroughly exploring that mine, has left the striking remark that no foreigner can properly appreciate the state of sentiment in one section of French society, where there is scarcely a single family in which the guillotining of a parent or a near relative is not a recollection or a fresh tradition; and one of the fruits of this condition of feeling is a strong reluctance to connect the France of the Revolution with the France of the Monarchy. Another, and a much larger, portion of the nation traces its political and social rights to the period during which all this blood was shed; and hence arises a manifest disposition to regard the Revolution as a historical catastrophe, terrible but inevitable, and to look on the society which succeeded it as no more closely related to that which preceded it than is the vegetation which has grown on the sides of Vesuvius after an eruption to the vegetation which the lava destroyed. Between unwillingness to find the parentage of the Revolution in the old régime before it, and unwillingness to have its crimes placed in full light, the first condition of scientific history, the critical examination of its sources was too much and too long overlooked. But of late, and mainly owing to the influence of that invaluable work on the relations between Old and New France, on which De Tocqueville was still engaged at his death, the business of correcting preconceived opinions by the aid of authentic historical materials has been rapidly proceeding. Two interesting books, one by M. Chassin (‘Le Génie de la Révolution’), and the other by M. Doniol (‘La Révolution Française et la Féodalité’), are among the first-fruits of renewed examination of the cahiers; and in the three volumes of his ‘Origins of Contemporary France,’ which M. Taine has lately published, he has given us instalments of a work which, apart from its great literary merits, is not unworthy to be compared with De Tocqueville’s fragment in the originality and carefulness of the research of which it gives proof. M. Doniol states that great quantities of the original cahiers are to be found in the French Archives; but, though some of them were separately printed in 1789, I am not acquainted with any collection of them fuller than that published, many years ago, by Prudhomme and Laurent de Mézières.
But although the diligent prosecution of these inquiries is comparatively recent, it has already led to considerable results. Some new facts have been discovered, some already known have been brought into clearer light, and several errors have been detected. Among the passages in the Revolution hitherto obscure which may now be better understood, one or two deserve especial remark. The hostility of the cultivating peasantry to the territorial nobility in all provinces of France except Brittany and Anjou, has generally been recognised, not merely as one of the causes of the Revolution, but as the chief cause of the rapidity with which it gathered head and of the comparative stability which it manifested. The provincial cities and towns were slowly drawn into the movement through the action of Jacobin clubs, gradually established in them, and taking their instructions from the central body in Paris, which no doubt from the first was a furnace of revolutionary agitation. But the peasantry, always excepting those of the western provinces, were from the very beginning enthusiasts for the destruction of the ancient institutions, and so they remained until they gained their objects. This universal hatred of the peasants had for one of its effects a condition of the country which, no doubt, has often perplexed the reader of the ordinary histories. After a while France became hermetically closed, and escape from the guillotine became almost impossible. Some writers, in explaining this, have attributed to Robespierre a special genius for police organisation; but the truth seems to be that the cultivating classes, who at first witnessed with pleasure the emigration of the nobility, constituted themselves a voluntary police as soon as they found that, by detaining the nobles in France, they would probably send them to the scaffold. This extremity of detestation is not sufficiently accounted for by assigning general reasons for it. The complicity of the peasants with the rulers of the Reign of Terror was undoubtedly connected with a wish to preserve certain advantages which they had obtained just at the very period when France became a republic; and similarly an earlier series of incidents, which testify to the same unqualified bitterness of feeling, are now shown to have had a special rather than a general cause. M. Taine has described in the subdivision of his work called ‘L’Anarchie Spontanée’ those terrible outbreaks of violence which occurred even as early as 1789, and which are sometimes designated collectively the ‘burning of the châteaux.’ What is now seen clearly, but had only been suspected before, is that the acts of the incendiaries had a distinct object.1 The object in setting fire to a château was to burn the muniment-room; and the object of burning the muniment-room was to destroy the titres or title-deeds of the seigneur of the fief—as we should say, of the lord of the manor. All this would be hardly intelligible but for a fact, now established, which possibly requires a lawyer rather than an historian to appreciate it—the fact that the French nobility were everywhere engaged in never-ceasing litigation with the peasants. The majority of the French nobles, it should be understood, had little or no analogy to what we understand by a landed aristocracy. A certain number of them, relatively but a few, had great estates; but the largest part of them had little or no land let for rent to lessees or tenants-at-will. The multitude of petty noblemen and gentlemen—classes indistinguishable from one another in Old France—lived on the money produce of the small incidental services due, as we should say, from owners of land held in copyhold to the lord of the manor. Thus they had their finances, the ‘fines’ of our copyhold tenure, the dues payable to the lord by the peasant proprietor on death or on the sale of his land. They had also their monopolies, such as the obligation of the peasant to send his grain to the lord’s mill for grinding, or his beast to the lord’s market for sale. And they had a number of miscellaneous and nondescript sources of income, such as a sole right to have a dovecote stocked with pigeons, which fed on the peasants’ corn. Now on the legal foundations of these privileges a strong controversy was proceeding among the French lawyers during the half-century preceding the Revolution. Some maintained the legal doctrine which had made great way in France at the period when feudalism was really strong—Nulle terre sans seigneur, ‘No lord, no land.’ On this principle, the presumption was always in favour of the liability to feudal dues, and the right to them could always be established by prescription. But another school, no doubt unconsciously influenced by the economical doctrines which had excited such interest among the educated classes in the latter part of the eighteenth century, contended that the lord must show his titres, and almost went the length of arguing that no feudal rights had a legal basis unless documentary evidence of title could be produced. The struggle between the competing principles produced an enormous amount of litigation, sometimes the lord encroaching on the strength of one view, sometimes the peasant on the strength of the other. In any event, the title-deeds of the lord had become of the greatest importance, and the advantage which the tenants gained by their destruction is obvious enough. At a later date it lost its value in the eyes of the peasantry, because more drastic remedies for their grievances had then been devised. The legislation of the Constituent Assembly swept away the greatest part of the feudal dues, and provided compensation for only a part of them. The Legislative or Second Assembly abolished the residue and withdrew the compensation. The Convention, or Third, found almost nothing to destroy, though it was passionately eager to fasten on a hated institution, and though the Revolutionary lawyers, who abounded in it, were the real authors of the legislative provisions, afterwards engrafted on the Code Napoléon, which for ever prevented the revival of feudal ownership in France. The transfer of property from one class to another through the abolition of the feudal dues was much more important than has been commonly supposed, and had much greater influence over the course of the Revolution. When in fact the Revolution ceased to be a social movement, it lost the greatest part of its aliment, and nothing remained for its authors except to tear one another to pieces.
While, however, the re-examination of the cahiers has placed beyond question the character of the grievances of the French peasantry, it has raised some new problems. Bitterly and strongly as these grievances were felt, were they of extraordinary proportions? Does the comparison of the relations between the French peasant and his lord with similar relations in other countries suggest that the small cultivator in France had exceptional and intolerable burdens to bear?
If I were to say that the first French Revolution took place because a great part of the soil of France was held on Copyhold Tenure, the statement would doubtless sound like a paradox. Those who have any practical knowledge of Copyhold, know it to be certainly an inconvenient form of landed property, but hold it probably to be, like all property, rather a privilege than a grievance. Those again who have paid any attention to its history, have possibly heard that Copyhold Tenure has descended from the precarious holdings of Bondmen or Slaves, a condition to which the greatest part of the Anglo-Saxon population is supposed to have been reduced after the alleged destruction of the ancient land-law of England and confiscation of its soil by William the Conqueror. The popular theory of the origin of Copyhold, or at all events the theory in which most lawyers are educated, is explicitly set forth in a tract on the ‘Use of the Law,’ commonly printed in collections of the writings of Lord Bacon (Spedding’s edition, vol. vii. pp. 481 et seq.) The Conqueror is described as having ‘got by conquest all the land of the realm (except Church lands and the lands of Kent) into his own hands in demesne, taking from every man all estate, tenure, property, and liberty of and in the same.’ He then distributed the soil of England among his tenants in capite, ‘reserving some retribution of rents or services or both to him and his heirs’; and ‘by example and resemblance of the king’s policy in these institutions of tenures, the great men and gentlemen of the realm did the like as near as they could.’ Each of them, after reserving to himself the land in the immediate neighbourhood of his mansion-house, or manor, gave a certain portion of the ‘uttermost parts’ of his estate to some ‘trusty servants, to find a horse for war and go with him when he went with the king to the wars, . . . which tenant is called a tenant of knight-service.’ Smaller parcels of land he assigned to socage tenants, who were to plough part of the domain of the lord and bring home the harvest; and the remainder of this domain, ‘which he kept to himself,’ he cultivated by his bondmen, and ‘he appointed them at the courts of his manor how they should hold it, making an entry of it into the roll of his court; yet still in the lord’s power to take it away; and therefore they were called tenants-at-will by copy of court-roll, being in truth bondmen at the beginning; but, having attained freedom of their persons, they are now called copyholders, are and so privileged by the custom that the lord cannot put them out.’ The writer adds that ‘Manors being in this sort at first made, it grew out of reason that the lord of the manor should hold a court, which is no more than to assemble his tenants at times to be by him appointed. . . . This court is called a Court Baron; and herein a man may sue for any debt or trespass under forty shillings’ value; and the freeholders are to judge of the cause upon the proofs produced on both sides.’
The tract on the ‘Use of the Law’ appears to be wrongly attributed to Lord Bacon, who has elsewhere shown that he had much sounder ideas than its writer of the true history of English institutions. The account, however, which it gives of the origin of Manors and of copyhold tenures is the one which, on the whole, has generally prevailed, and there is undoubtedly a good deal in the received authorities on copyhold to suggest it. Yet it is certainly not true, and perhaps the least drawback on it is that it is not true. For, by substituting for the truth a set of plausible fictions, it gives a wrong point to some instructive political lessons, and has besides the mischievous indirect effect of disguising from us that institutions, like forms of organic life, are subject to the great law of evolution.
The real facts are being gradually, though but slowly, established by very recent researches, but, so far as they can be stated in the space at our command, they are as follows:—
When Western Europe has settled down into comparative peace after the deadly strife which followed, first, the irruption of the Germanic races into the Roman provinces, and next, the disruption of the Carlovingian Empire, and when the feudal world has at last been constituted, it wears superficially a variety and irregularity of outline very unlike the apparent uniformity of the Roman Empire. But, on close inspection, all feudal society is seen to be a reproduction of a single typical form. This unit consists of a group of men settled on a definite space of land, and forming what we Englishman call a Manor, and what in France was called a Fief. The great misconception which runs through the account of this group which I took from the tract passing under Bacon’s name, is as follows: the writer regards the Manor entirely as a mode of property, the manorial organisation as a mere proprietary arrangement. But the Manor or Fief, in its origin, was as much a political as a proprietary body, as nearly akin to a State as to an Estate. It retained even in its decay some of the characteristic and curiously persistent marks of Aryan political organisms. The Lord is the βασιλεύς, the rex, the king.2 The free tenants are the γερουσία, the senate, the council. The villeins are the mass of the people; and below them are the true bondmen, the slaves, or thralls, or, in later legal language, the villeins in gross. The Signorial Court, the Court Baron, is the ancient village assembly, in which the administration of justice has now taken precedence of other public concerns, but in which those public concerns continue to be discussed, the lord presiding, the free tenants advising, the villeins attending without definite share or voice in the deliberations, like the crowd in the Homeric Agora. Those fines, dues, and monopolies which still annoy the English copyholder of our day, which went far to cause the first French Revolution, and which had to be cleared away by a timely stroke of statesmanship before Prussia could begin a struggle to relieve herself from French military despotism, were in their origin rather in the nature of taxes than in the nature of rent. They represent the ancient provision for the service of the little village commonwealth. Some of them may have sprung from the oppressions of the lord, and some from agreement with him; but the greatest part had their origin in regulated force, the sovereignty of the little State.
The Lord, the Seigneur of France, is answerable for the conduct of the whole manorial group to its superiors and its neighbours. He is the manager or governor of the little society, with the advice of his free tenants. He is arbiter of its affairs in the signorial court. He is not the owner of all the land of the Manor; but he generally owns some of it under the name of his domain. Much, however, of his revenues, and here and there the most important part of them, consists of the various dues payable to him from all classes of his tenants. Immediately under him are his freeholders, who render him military or other honourable service and do suit, which involves giving an opinion on the judicial or other matters arising in the Court Baron. But the greatest part of the land included in the Manor or Fief, in some cases much the largest part of it, is in the hands of the Villeins. It was inevitable that the position of this stratum of the manorial community should be much misunderstood until the Comparative Method of Inquiry let in light upon it through observation of those more backward societies which have preserved to our days the life and social forms of the eleventh and twelfth centuries. The villeins owe to the lord all sorts of dues and services, personal labour, among others, on the lands which form his domain; they may not leave the Manor without his permission; no one of them can succeed to the land of another without his assent; and the legal theory even is that the movable property of the villein belongs to the lord. Yet it may confidently be laid down that, in the light of modern research, none of these disadvantages prove an absolutely servile status, and that all may be explained without reference to it.3 Those who remember that, twenty-five years ago, the Russian serfs were popularly supposed in England to be as much slaves as the negroes of a Mississippi planter, but nevertheless are aware that under the great measure of 1861 the serfs, and not the lords, obtained much the largest part of the land, may be prepared for the assertion that the villeins of the middle ages were never in the strict sense of the word slaves, and never ceased to be in some sense landed proprietors.
To the typical form which I have described, Kingdoms were adjusted no less than Manors. The sovereign who became the most powerful in Europe, the King of France, was the lord of an exalted Manor. His free tenants were the Dukes of Normandy and Burgundy, the Counts of Toulouse and Champagne; his domain consisted of Paris and of the old Duchy of France. These continental institutions were reproduced in England, but, as has often been the case, with a difference. The great power of the early Anglo-Norman kings came from their allowing nobody to be absolutely interposed, like a Duke of Burgundy, between themselves and their subjects, and from their exacting fealty and therefore military service from all Englishmen (Freeman, ‘Norman Conquest,’ iv. 694). We can trace the Manorial group backwards to an earlier social form, a body of men democratically or rather aristocratically governed, in which the free tenants had as yet no lord, the village community.4 We can also trace its gradual dissolution, until the forms of landed property were established with which we are all familiar. The exact point before us is, Why did the Manor in its decay produce such different results in England and France? Why did its transformation end in one country in a revolution which is an epoch of history? Why, in another, in a somewhat inconvenient form of landed property?
It is, in the first place, to be observed that the French peasant tenures of 1789 wear, externally, the strongest resemblance to the copyhold tenures which were found at the same date in England, and which indeed still survive, though their area is much limited. From my own researches, I should be inclined to doubt whether there is a single service of the French peasantry established by authentic evidence of which at least a trace cannot be discovered among the incidents of English copyholds. Arthur Young, who travelled just before and just after the outbreak of the Revolution, singles out certain French services for their especial grotesqueness, but feudal obligations nearly answering to several of them are mentioned by one or other of the witnesses examined by the Select Committee of the House of Commons on Copyholds which sat in 1850 and 1851. There are, no doubt, certain alleged incidents of the French tenure, implying an extreme degradation of the tenant, which do not appear to have ever had their counterparts in England, though they have been thought to be discoverable in the half-legendary history of Scotland; but the evidence of them has of late been considered to be extremely doubtful, and it certainly consists in some cases of a misapprehension of the meaning of old French juridical terms. On the whole, the correspondence of the French and English tenures is remarkably close; and nothing can exceed the surprise of M. Doniol—the first of his countrymen, I believe, who has become alive to this correspondence—that grievances which all his authorities declare to have brought about the great Revolution, are in England grievances of no political significance whatever. M. Doniol has imagined the following ingenious illustration of the disadvantages of the existing English copyhold tenure. He supposes a capitalist from the South of England beginning negotiations for the purchase of an estate in the North which has struck his fancy. His solicitor tells him that Manors abound in the Northern counties, and that the estate is mostly copyhold. On further inquiry, he is informed that the land is subject to arbitrary fines—the finances of old French law—and that a sum of money is therefore payable to the lord of the manor every time a copyholder dies or sells his land; and every time the lord dies, a similar sum must be paid to his successor. These arbitrary fines were once really arbitrary, but the King’s Court long ago declared that (save in some very exceptional cases) they must be reasonable and must not exceed two years’ value of the land. The consequence, however, is, that every time any one in a series of hereditary copyhold tenants (father, son, or grandson) dies, and every time a death occurs in a similar series of lords of the manor, two years’ value of the land must be paid. Hence, M. Doniol’s would-be purchaser is warned that it never can be worth his while to make improvements on his property, since they would only add to the standard of the fine leviable in these eventualities. He is further warned that, on his death, the most valuable piece of personal property he possesses will be liable to be seized by the lord under the name of a Heriot; and it is a fact that the Pitt Diamond and the famous picture of Rubens, the ‘Chapeau de Paille,’ which is the gem of the Peel Collection in the National Gallery, were barely saved from seizure as Heriots, and the most valuable racehorse of its time was actually seized, their owners happening to have some fragments of copyhold amid their estates. M. Doniol’s solicitor then goes on to enumerate a number of smaller inconveniences of the tenure. One of them was in France one of the chief grievances of the peasantry. On being properly summoned the copyholder must supply a man to assist in reaping the lord’s harvest. In old France, the peasant went himself, but in England it merely comes to this, that the copyholder loses a day’s work of one of his labourers; the lord, however, does not gain it, for the labourer sent to him does as little work as possible, and by the custom he is entitled to a dinner, which is worth more than the value of his labour at its best.
M. Doniol concludes by asking who in his senses could buy such a property. The incidents of copyhold which he specifies have a real existence and are very familiar to lawyers; many others equally singular in the eyes of a foreigner were described to the Select Committees of the House of Commons. Nevertheless, as M. Doniol himself admits, there is a certain fallacy in his account. For purposes of illustration, he assumes that all copyhold land is burdened everywhere with these onerous services. The truth is that, the picture is made up by uniting burdens spread over a great number of manors; and it may be asserted generally that in the southern counties of England manorial liabilities are seldom of much importance; and everywhere they have been extinguished in great quantities during the last five-and-twenty years by the proceedings of the Copyhold Commissioners.
The reasons which may ultimately lead to the compulsory enfranchisement on equitable terms of all English copyhold land are not at all likely to be the grievances of the copyholder. If he were to urge them, the answer openly or tacitly given would be that he is fortunate to have even an inconvenient kind of property, and that he is no more entitled to the public pity than a shareholder in a railway which pays intermittent dividends or none at all. Very probably he would be told that, whatever be the disadvantages of his property, they were doubtless allowed for in the price which he or his predecessors paid for it. The grounds on which enfranchisement will be enforced, if at all, will be, that copyhold tenure is an obstacle to agricultural improvement, on which it entails a direct penalty, and that it is a restraint on the productiveness of the soil. It is to be remarked, however, that this reasoning, or at least its cogency, is extremely modern. As recently as two centuries ago, an observer, not over-sensitive to other people’s interests, described the grievances of copyholders in language curiously like that used of the wrongs of the French peasantry in the cahiers sent up to the French States-General. Roger North, in his delightful book, ‘The Lives of the Norths,’ tells us that the Lord Keeper Guilford qualified himself for practice at the bar by acting as the steward of various manors, and he quotes a good deal of the Lord Keeper’s conversation on the subject of manorial rights. Guilford was in the habit of saying that he found himself the executioner of the cruelty of the Lords and Ladies of Manors upon poor men; that small tenements and pieces of land which had been men’s inheritances for generations were devoured by fines; that it was wonderful how Parliament, which took away the royal tenures in capite, had never relieved the poorest landowners of the nation from extortion and oppression, and that the tenure ought to be abolished. Here is the very muttering of the volcano before the French revolutionary eruption; but there is this difference, that the class compassionated by North is a relatively small one as well as a poor one, for he goes on to observe on the large number of manors which had become altogether or partially extinct in England.
Now, if a hundred years ago, a great part of the class which, as a fact, consisted of agricultural labourers, and a considerable part of the class which, as a fact, consisted of tenant farmers, had been made up of copyholders standing to the Lord of the Manor in the relations which North describes, and if, under the law of the equal division of property these copyholders were constantly multiplying their numbers without severing themselves from the land, there would have been in this country a state of agrarian society very nearly resembling that of France. It must be allowed, I think, that if no similar convulsion had resulted from it, it would not have been for want of explosive material. As a matter of fact, nothing of the kind occurred, and the very suggestion of an English Revolution caused by the oppression of copyhold tenants strikes every one as an absurdity. How then came the feudal edifice of which the outline had been extremely similar in England and France, to break into such different shapes? How came the same institution to become a grievance of the first order in one country, at most an inconvenience in the other? The answer to this question divides itself into many branches; some of them I could not follow without retracing much of the long and intricate history of English land-law, and without using much technical language, but the consideration of a few may not be out of place here.
One powerful cause of the difference lay in the strong distinction between the judicial organisation of France and of England. In both countries, a considerable part of the popular law, the law which affected the mass of the people in most of their concerns, had been once administered by the local courts, the Manor courts, and signorial courts, presided over theoretically by the lord, but practically by an expert deputy, the steward, attorney, or bailli. The French signorial court is extinct, and the only picture which remains is a caricature, in the play of Beaumarchais called the ‘Mariage de Figaro.’ Yet even the sketch of Beaumarchais is a sketch of a tribunal in its way powerful and important, and thus very unlike those Manor courts which, though still summoned in our day for the transaction of business, betray in every part of their proceeding their extreme decay. A century since, the English Manor court was very much what it now is; but the signorial court of France was a comparatively flourishing institution. The English country gentleman, who was lord of the manor, was administratively a person of great authority and influence; but his ancient jurisdiction was in extreme decrepitude, and the only judicial powers which he prized were probably those which he derived, as a Justice of the Peace, from the King. The French Seigneur, on the other hand, was administratively a cipher; as Tocqueville has pointed out, the agents of the centralised royal authority had usurped all serious administrative functions; but then the court of his signory, though it had lost much, had retained a good deal of its ancient authority and activity.
The different condition of the local jurisdictions in the two countries was certainly due to the different action upon them of courts outside and above them. In England the King’s Courts at Westminster Hall constantly corrected the jurisdiction of the manorial courts, limiting the area of land subject to it, confining it rigorously to specific cases, and strictly prescribing the manner in which it should be exercised. The heads of the little manorial societies long struggled against what they deemed to be an usurpation. Too few manor rolls have been published; but in those which have been made accessible you frequently find the lord and the homage (that is, the assembly of free tenants) making rules against resort to the King’s Court. Thus, if we turn to page 239 of Mr. Scrope’s ‘History of the Manor of Castle Combe,’ we find an entry of a distress made on the goods of a copyholder for violating the constitutional rule (communis ordinatio) of the Manor, that ‘no tenant is in any way or for any reason to implead, or procure the impleading of any other tenant, in any external court.’ Not only did the King’s Courts disregard all such rules, but they established the principle that the lord might be made to answer to the King for any excess of his authority, or of his customary privileges. Some of the best-known principles limiting manorial rights were settled in this way; among others, the doctrine which in its origin must have been most beneficial to the copyholder, that all so-called arbitrary fines must be reasonable, the standard of reasonableness being taken at two years’ value. The most destructive influence exercised by the King’s Courts over the manorial jurisdictions consisted probably in the inclination of the higher tribunal to narrow the area of land held on tenures traceable to the ancient villenage. The King’s Court would bind a lord to prove strictly that a particular piece of land was copyhold. The free tenure, technically called socage, was thus always extending at the expense of servile tenures; and Roger North expressly tells us that, at the time of which he writes—that is, about the middle of the seventeenth century—‘most manors in England were more than half lost.’
What the Courts at Westminster Hall were to the English Manor, the French Parliaments were to the French Fief. They were originally creations of the King; the pedigree of the Parliament of Paris is as distinctly traceable as that of the Queen’s Bench to the ancient Curia Regis; and originally the Parliaments were as untiring as the Courts of the English Kings, and in the teeth of far fiercer protests from the French nobility, in extending the authority of royal law at the cost of local law. Not only did they employ against the signorial courts the same weapons which were used by the English judges, but they borrowed a special instrument of attack from the Roman law, by insisting on their right to hear appeals from all subordinate jurisdictions. Yet there is no doubt that this hostility slackened after a while. Although, as I before said, a special current of decision set in in the latter half of the eighteenth century, yet, on the whole, the later doctrine of the French Parliaments was ‘Nulle terre sans seigneur;’ and thus there was always a presumption against the existence of the free tenure most nearly corresponding to our socage. The Parliament of Paris, just before the Revolution, ordered the work of Boncerf, ‘On the Inconveniences of Feudal Rights,’ to be publicly burnt; and the decree no doubt testifies to the opinions most strongly and permanently held by the majority of the French judges.
There is a general agreement among historians of French law that this later tenderness of the French Parliaments to signorial rights and signorial jurisdictions is attributable to the interest which the French ‘nobility of the gown’ had acquired in signorial privileges. The change of feeling is connected with the innovation, generally regarded as disastrous, by which offices in the great French judicial assemblies became purchasable and hereditary. Thenceforward, as M. Fustel de Coulanges has observed, a judge was almost invariably a man of inherited wealth; in the France of that day, the only investment for wealth was land or interests in land, and proprietorship was just as likely to consist in a right to signorial dues as in ownership of the soil. I am not in a position to controvert this view; yet I may venture to interpose the remark that the student of English history will perhaps doubt whether in all states of society the saleableness of judicial office is an unmixed evil. Our associations with the French Parliaments do them a certain amount of injustice. They had in fact inherited, from a time when legislative and judicial power were not clearly separated from one another, a claim to check the legislation of the Kings of France, by refusing to register their edicts when they were, as we should say, unconstitutional. Their not always wise and almost always feeble efforts to stand in the way of high-handed legislation, are apt to lead us into contrasting them unfavourably with that famous body bearing the same name which has so long made laws for Englishmen. But, as courts of justice, they were extremely remarkable, more especially for having much of that independence which we are used to consider a natural and necessary characteristic of legislatures. The very defects of their constitution contributed to this independence. While the justice administered in the English Courts was from very early times more emphatically than in any other European country the King’s Justice—while each of the four Stuart Kings found no difficulty in packing the English bench with his creatures—the seats in a French Parliament were filled by men who retained a certain measure of independence, exactly because they had purchased or inherited their offices. The Parliaments may be justly taxed with many faults, but they were never servile instruments or pliant nominees of the King, down to the day when the States-General, which had not met since 1614, again assembled in 1789, and ground the King and the Parliaments and all French institutions to powder.
There were other causes, besides the tendency of judicial decision in the King’s Courts, which helped to prevent the growth in this country of that spirit of discontent which exploded among the French peasantry in 1789 and 1790. I have no doubt that we must reckon among them that aggregation of property in large estates which is of old date in this country, though the pace at which it has proceeded has greatly increased of late. It may have produced other evils, but it reduced the particular evil of which I have been speaking to insignificant proportions. I could not fully account for this aggregation without entering upon the technical history of land-law; but one of its economical causes may be noticed here. The English Lords of Manors—a class which, it must be borne in mind, includes the forerunners of both the English nobility and the English gentry—had been originally much poorer than the corresponding order in France. The forerunners of the French nobility had settled or risen to power in some of the wealthiest, most populous, and most highly cultivated provinces of the Roman empire; and the imposts which afterwards became their feudal dues gave them no doubt great relative opulence. But England was a country of large forests and wastes, as indeed might be inferred from Macaulay’s famous Third Chapter, describing its condition in comparatively modern times. Now one of the best ascertained incidents in the growth of feudalism is the falling of the waste lands of the manor into the hands of the lord, and a particular circumstance gave an especial importance to this gradually acquired property. England in the middle ages had a source of national wealth which can only be compared with our present coal and iron, with the wines of modern France, or with the gold of Australia and California. Her soil, her climate, and doubtless her tenures, were specially fitted for the production of wool—those ‘wools of England’ which the King, in the Roll of the Ordinance of the Staple, is made to call ‘the sovereign merchandise and jewel of our realm.’ The English wool supplied the industrious cities of Flanders with material for their looms, and was carried to all points of the Mediterranean seaboard. This it was which turned a poor nobility into a rich nobility; and, when the Wars of the Roses have closed, a popular movement which has attracted too little attention and which has been much misunderstood shows the English lords of manors rapidly acquiring land, and acquiring it for purposes of sheep-farming and of agriculture on a great scale. But the French noblesse seem to have never been able to buy up the holdings of their former villeins. A certain number of them had the vast estates described in M. Taine’s recently published volumes; but, taking France as a whole, and excluding Church and Crown lands, the sense of property in land was not in the seigneur but in the peasant. It is one of the most vulgar of errors to suppose that small properties in France date from the Revolution; immediately before it, Arthur Young, one of the most observant of English travellers, expresses himself as amazed at their multitude. And this multitude was increasing, since the peasants were buying up the domains of the richer nobility, ruined by the court life at Versailles. But all this mass of petty proprietors was subject to the payment of feudal dues and to the curtailment of their profits by small monopolies; and we may gain a feeble notion of the exasperation which the system caused by recalling the days when the English farmer had to allow the tithe-owner’s agent to take every tenth sheaf from his field. But perhaps fiction is even more instructive on the point than history. Turn to the ‘Bride of Lammermoor,’ and gather from it the opinion which the feudal tenants of the Lord of Ravenswood had of the raids of Caleb Balderstone on Wolfshope—extend this to a whole population and understand that a legion of Caleb Balderstones overran France—and one may be able to bring home to oneself the view which the French peasantry took of the institutions under which they lived.
If we turn to England, we have reason to think that, by the end of the last century, the bulk of the class corresponding to the French peasantry consisted either of agricultural labourers or of tenant farmers. Doubtless much might be said on the excessive multiplication in this country, as compared with others, of the first portion of this class, the agricultural labourers; but the tenant farmers, though not given to hide their grievances, have never been politically dangerous. It is not indeed to be supposed that the Copyholder, cultivating his own land, is never found even now; probably a part of the very considerable number of small landowners which the so-called new Domesday Book shows to be left to us consists of this class. Several of them were examined by the Committees of the House of Commons which inquired into copyhold tenures, and they were pressed with the question whether they were not at all events better off than the farmer holding on lease who paid a rent, not at irregular periods, but regularly every half-year. The true answer is, that a copyholder is not a hirer but an owner of land, but the comparison implied in the question is significant. No doubt the status of the tenant farmer has had much effect on the feeling of cultivating copyholders. It has served as a standard with which to compare their own condition; and indeed it is a fact now known to lawyers that copyholders in the sixteenth and seventeenth centuries frequently impaired their legal position by accepting leases of their land from the lord of the manor. But the French peasant, holding by servile tenure, never compared himself with the farmers of the domain land of the nobles, who were a very special class, the metayers, not only hiring their land from the lord, but having it stocked by him. The peasant compared his lot with that of the nobles themselves, and bitterly chafed at the contrast.
I have yet to mention one cause which perhaps more than any other prevented not only manorial rights but all rights in land from being seen in England at the end of the last century in precisely the same light in which they were viewed in Continental countries. It is a fact of great political and juridical interest that from very early times landed property changed hands by purchase and sale more frequently in England than elsewhere. The unusual legal facilities for this which existed here belong to that technical history of law from which, as before, I abstain; but it was certainly the early wealth of the country which led chiefly to these transfers. Some jurists have laid down, as a general principle, that every acquisition of property is founded on a previous contract or agreement. This no doubt is historically untrue, but the mistake is one which is closely connected with some of the most widely received ideas of the eighteenth century. The sacredness of contract was one of the fundamental ideas of the French philosophical creed, and it strongly influenced the proceedings by which the manorial rights of the French nobility were taken away. In the end, the nobles received no compensation for the loss of these rights; as the flame of revolution gathered head, it was as much as they could do if they saved their lives. But this was not at all intended by the First or Constituent Assembly. It abolished without compensation those rights only which it supposed to have sprung from the ancient helplessness of the villein; but wherever any class of rights seemed to it to have originated in a contract between the lord and his vassal, it abolished them indeed but provided for the lord’s receiving their money-value. The distinction did some honour to the spirit of justice prevailing in the First Assembly, but no doubt it was founded on historical error. There is no reason for supposing that manorial rights originated in simple violence, but there is equally little for supposing that any large number of them originated in agreement.
What, however, was untrue of France, was true in a certain sense of England, and is still truer now. The title of the Lord of the Manor and the title of the Copyholder were then, as now, far more deeply rooted in agreement than in any other deeply feudalised country. The lord had often, personally, or through his predecessors, purchased his rights; the copyholder had constantly obtained his land subject to manorial rights, by purchase from somebody else. It will be found that English political economy and English popular notions are very deeply and extensively pervaded by the assumption that all property has been acquired through an original transaction of purchase, and that, whatever be the disadvantages of the form it takes, they were allowed for in the consideration for the original sale. I cannot doubt that this assumption, to a very great extent a true one, is a very valuable safeguard to property; perhaps in our day not less valuable than the general sense of its expediency and than that feeling, as old as the oldest rudiments of civilisation, which has translated itself into the legal rules of prescription and into the respect of the most permanently powerful section of every society for its established institutions. If this be so, the immediate practical lesson is that we owe our best wishes to those attempts, hitherto not very successful, which have been made to give an impetus to the exchangeableness of land. If they ever succeed, they will facilitate one of the most conservative and reparative of processes, the purification by contract of the title to property.
I do not wish to be understood that the contrast between the view of feudal obligations and rights taken in England and France is wholly to be explained by the causes which I have analysed in this paper. This set of causes appears to me to have been kept too much in the background, and therefore I have thought them not undeserving of attention. It belongs to the civil historian to bring to light others which are intermingled with the whole structure of French society. De Tocqueville has strongly suggested, and others after him will probably demonstrate, that the enormous social prestige of the French Court and its constant indulgence of its military tastes had at length turned the French territorial nobility into a caste as distinct from the cultivating peasantry as is the Rajput from the Sudra, as distinct as was the white planter of the Southern States from the negro who laboured in his cane-fields. The effect of this deep alienation was completely to alter the normal or natural character of the social group of which I have spoken, the Manor or Fief. Left to itself, it is one of the most conservative of all institutions. In our own country the Manor is in extreme decay, and chiefly survives in its ecclesiastical organisation as the Parish. In France a revolution has passed over the Fief, and it has become a mere administrative subdivision, the Commune. But, as we move eastwards through the German and Sclavonic countries, this primitive social organism grows stronger and stronger. It is plainly discernible under the superficial crust of Mussulman institutions, until in India it emerges in its most ancient form, as the Village-Community, a brotherhood of self-styled kinsmen, settled on a space of land. Everywhere, however, it offers a more or less stubborn resistance to change; whether the instrument of change be military conquest or the centralising legislation of well-intentioned rulers, who from the nature of the case can only look on nations as miscellaneous aggregates of individuals, and can at most aim at the greatest happiness of the greatest number. Nobody who knows England outside cities and towns will think that deference to the Squire and the Parson is a phenomenon only fit to point a sarcasm or a joke. No Frenchman, except a Parisian, will laugh at what Frenchmen call the patriotism of the Steeple. But in the latter half of the eighteenth century, the normal operation of the Fief was reversed in France. Many causes, and among them that personal friction which is the despair of all who would make History a science, had produced among the peasantry such intensity of hatred to their lord that they were ready to find allies against him anywhere—before the Revolution, in the despotic King and his usurping agents—after the Revolution, in the Convention, in the Jacobin Club, in the Directory, in the First Consul, who was soon to be the Emperor. And even now the tradition of the feudal dues and the fear of their revival are political influences of the first order, tending to make a great part of the nation ready, or not reluctant, to throw itself (as a great French orator said) into the arms of the first lucky corporal who makes it believe that he can preserve the institutions created by the Revolution, without bringing back the Revolution itself.
NOTES AND ILLUSTRATIONS.
[1 ]See Taine, vol. i. of La Révolution (vol. ii. of the entire work), pp. 94 et seq. It will be observed in how many cases the attack on the château ends with the burning or pillage of the muniments. M. Taine observes that the anarchy was sure to spread. ‘Remarquez,’ he writes, ‘que les chartriers et les titres féodaux sont encore intacts dans les trois quarts de France, que le paysan a besoin de les voir disparaître, et qu’il est toujours armé.’
[2 ]In the series of papers, called ‘Souvenirs d’Enfance,’ which M. Renan is publishing in the Revue des Deux Mondes, he describes a class of territorial nobles who were found in Brittany, just before the Revolution, and who were quite distinct from the later nobility of royal creation. They had fallen into great poverty, but they received much consideration from the peasantry, who regarded them as the lay chiefs of the parishes of which the curés were the ecclesiastical heads. M. Renan mentions the remarkable fact that they touched for the king’s evil. He says of one of them: ‘On croyait que comme chef il était dépositaire de la force de son sang, qu’il possédait éminemment les dons de sa race, et qu’il pouvait avec sa salive et ses attouchements la relever quand elle était affaiblie. On était persuadé que pour opérer des guérisons de cette sorte il fallait un nombre énorme de quartiers de noblesse.’—Revue des Deux Mondes, March 15, 1876.
[3 ]Bracton most clearly explains that in the thirteenth century Villenage was a tenure and not a personal status. Either a freeman or a bondman might hold in villenage, but ‘the tenement changes not the condition of a freeman any more than of a slave. For a freeman may hold in mere villenage, doing whatever service thereto belongs, and shall not the less be free since he does this in regard of his villenage and not in regard of his person.’ I give the whole passage in Note A to this chapter.
[4 ]See Note A to this chapter, ‘Village Communities and Manors.’