Front Page Titles (by Subject) A NEW POINT ON VILLEIN TENURE 1 - The Collected Papers of Frederic William Maitland, vol. 2
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A NEW POINT ON VILLEIN TENURE 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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A NEW POINT ON VILLEIN TENURE1
In this paper, which was read before the Economic Section of the British Association at its meeting in 18902 , Mr Ashley, who in his little book on Economic History has given the best popular sketch of “the Manor and Village Community” that has yet been published, discusses a few points in the history of villeinage. As regards remote times, he seems to be now more decisively inclined than he was three years ago to accept Mr Seebohm's theory, but seems to have no new evidence to offer. As regards the thirteenth century, he “purposely omits all reference to Bracton,” on the ground that “so long as we are without a critical edition, and unable to distinguish Bracton's text from later accretions, it is possible to support by his authority almost any opinion as to villein tenure.” This, as we think, goes much too far. No one has a worse opinion of the vulgate text of Bracton than that which we hold; but still, though a few details may be doubtful, Bracton's general theory of villein status and villein tenure becomes clearer, more definite, and more consistent every time that one reads it, and (at least so it seems to us) proves beyond doubt that early in Henry III's reign the king's judges were within an ace of granting to the free man who held in villeinage that protection of common law and royal justice which—the opportunity having once been lost—he did not gain for some centuries afterwards. For how many centuries afterwards?—in other words—When was it that the copyholder acquired an action against his lord? Now it is on this question of comparatively recent history that Mr Ashley has something to say that seems to us new and startling. We all know the famous section of Littleton's Tenures (sec. 77), which enshrines the dicta of Danby and Brian, and probably we have all been wont to think that those dicta solved a great question for good and all. But did Littleton write that section, or rather the latter half of it? “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.” This opens a very serious question, one upon which we shall not be in a hurry to make up our minds; and though we are not very favourably inclined towards Mr Ashley's explanation of the celebrated dicta as the attempts of Yorkist judges to gain favour with the poorer sort by whom their master was supported, still true it is that these dicta were, if the phrase be allowed us, as obiter as dicta could be, and if the Year Books fairly represent this matter, they long remained isolated dicta. We must confess that at the moment we have no answer ready for Mr Ashley, and that in our opinion one more point in our legal history must now be considered doubtful. On the other hand, we think that Mr Ashley has made too light of the customary heritability of customary estates. It is quite true that some of the great religious houses were careful to prevent the dead tenant's heir from succeeding his ancestor. Thus, for example, in the lately published Literae Cantuarienses we find the monks of Christ Church in 1340 resisting an attempt of their villein tenants to establish a customary inheritance; and if in recent days the Dean and Chapter of Durham have had no copyholders, while the Bishop has had plenty, this seems due to the fact that the corporation aggregate was more far-sighted than the corporation sole, that the Prior and Convent enforced the rule that there should be no inheritance of their bondagia. Still in Court rolls of the thirteenth and fourteenth centuries, it is common enough to find a demandant claiming a villein tenement by inheritance “according to the custom of the manor,” and alleging descent from heir to heir with all the same strict accuracy that would have been required of him had he been a freeholder pleading before the Common Bench. However, Mr Ashley's great point is, to our minds, the point about Danby, Brian and Littleton, and we are very glad that he has made it.
Law Quarterly Review, January, 1891.
“The Character of Villein Tenure,” by W. J. Ashley (Annals of the American Academy of Political and Social Science, Jan. 1891).