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• The Materials For English Legal History 1
• Possession For Year and Day 1
• The Introduction of English Law Into Ireland 1
• The Surnames of English Villages 1
• Northumbrian Tenures 1
• The History of the Register of Original Writs 1
• Remainders After Conditional Fees 1
• The “praerogativa Regis 1 ”
• A Conveyancer In the Thirteenth Century 1
• A New Point On Villein Tenure 1
• Frankalmoign In the Twelfth and Thirteenth Centuries 1
• Review of “the Gild Merchant 1 ”
• Henry Ii and the Criminous Clerks 1
• Tenures In Roussillon and Namur 1
• Glanvill Revised 1
• The Peace of God and the Land-peace 1
• History From the Charter Roll 1
• Taltarum's Case 1
• The Survival of Archaic Communities 1
• I.: The Malmesbury Case.
• II.: The Aston Case.
• The History of a Cambridgeshire Manor 1
• The Origin of Uses 1
• Outlines of English Legal History, 560—1600 1
• Old English Law.
• English Aw Under Norman and Angevin.
• The Growth of Jurisprudence. 1154–1273.
• Legal Reform Under Edward I.
• English Law , 1307–1600.

TENURES IN ROUSSILLON AND NAMUR1

Such books as these2 , appearing as they do along with Dr Vinogradoff's Villainage in England, should make us Englishmen ashamed of our old-fashioned “county histories” and persuade us that we have hardly come in sight of the true method of making our super-abundant local records tell their most interesting tales.

France will be fortunate when all the lands which lie between the Channel and the Pyrenees are covered by books such as those which now illustrate her uttermost departments. Just outside her limits lies the country that M. Errera has studied. Châtelineau near the Sambre—canton de Châtelet, arrondissement de Charleroi—is the centre from which he starts for his researches among “les masuirs,” the mansionarii, the messuagers, we may say, of Belgium.

Both M. Brutails and M. Errera have felt the influence of Léopold Delisle, and both of them, though they approach their subject-matter by different routes, endeavour to unravel some of those problems of medieval history which are in part economical in part legal problems. That neither the social economy, nor yet the law, of the middle ages can be profitably studied by itself is a truth the full meaning of which is always becoming more clearly apparent. A little while ago a German jurist writing a Lehrbuch der deutschen Rechtsgeschichte would hardly have thought that a map of a typical German village was one of the things that might be expected of him. Nowadays it is otherwise: he will give the map and discourse about methods of agriculture. Medieval land law is not to be understood apart from medieval agriculture. Both M. Brutails and M. Errera know this, and they also know the other half of the truth—namely, that we can only get at the economic facts of the middle ages through the medium of legal documents, documents which can only be interpreted by those who have studied the law. Indeed, in M. Errera's case the juridical interest of the problems is apt to get the upper hand; but this predominant jurisprudence, if it will perhaps deprive him of some English readers, who are like to be impatient of what they will call his “legal technicalities,” will teach some others a very wholesome lesson—how little is gained by our easy talk of “village communities,” how elaborate an analysis of the legal thought of the middle ages is necessary if we are really to understand the commonest economic facts. Both of our authors speak with reverence of Sir Henry Maine. It would seem as if Maine's teaching bore better fruit in France and Belgium than in England. But then both of our authors have before their eyes those terrible pulverising, macadamising methods of Fustel de Coulanges.

Even to one who knows next to nothing of Roussillon and its history it is plain enough that M. Brutails’ book is the work of a scholar who has collected evidence industriously, weighed it soberly, and arranged it lucidly. He gives us what we want where we expect to find it, and is careful to support his opinions by extracts from the numerous medieval cartularies that he has examined. His general theory of the law that prevailed in Roussillon during the later middle ages is that it was Frankish feudal law. It was not Visigothic, though a certain theoretical respect was paid to the Forum Judicum. The Saracens destroyed what was Visigothic, and for their own part contributed nothing towards the law of later times. When they were expelled they left behind them a tabula rasa, and thenceforth feudal law of the Frankish type reigned in Roussillon. Roman law, even after the Bolognese revival, exercised but little influence. Such a phrase as les prétendus pays de droit écrit will perhaps give some Englishmen a slight shock. M. Brutails, however, contends, and seems to represent a strong current of modern learning in contending, that la division de la France en pays de droit écrit et en pays de droit coutumier, quelque ancienne qu’elle soit d’ailleurs, est une grave erreur historique. To repeat a phrase already used, a certain theoretical respect is professed for Roman law, and some of its phrases, half understood, will adorn the style of the notary; but at bottom the law is not Roman. We would willingly have heard a little more than M. Brutails tells us about the famous “Usatici Barchinonensis patriae,” for the relation between them and the medieval Roman law book known as the “Exceptiones Petri,” or rather, perhaps, between them and the yet earlier books whence “Petrus” took his matter, is an important point in the general history of European law and one which will not be settled until the “Usatici” has been carefully dissected. Our author is content to tell us that, according to common opinion, they were promulgated by Count Raymond Bérenger in 1068 (it interests us Englishmen to find a contemporary of William the Conqueror ready with quia quod principi placuit legis habet vigorem), but that some of the articles, notably some of the Roman articles, were inserted at a later date. However, his general conclusion is—Le droit romain représentait dans nos pays le droit par excellence, jura, la plus haute expression de la justice; mais dans la pratique il ne fut jamais qu’un droit supplétoire. He makes us think that if an English lawyer of the thirteenth century had wandered as far as the Spanish march, he would have found little to surprise him; and we are constantly reminded of the opinion which our kind neighbours, French and German, are for ever pressing upon us, namely, that English common law is a Tochterrecht of Frankish law, is, in short, just one more French provincial custom.

Thus one of the institutions with which he has to deal is the alleu. Whatever may be the original meaning of the term alodium, and whatever may have been the relation between it and the beneficium or feudum, it seems quite certain that there are ages into which we must not carry that sharp distinction between alodial ownership and dependent tenure which modern theorists have discovered or invented. M. Brutails remarks that if a tenant at a rent, instead of sub-letting or sub-infeodating, transfers his whole interest to another person, substitutes that person for himself as tenant, he will say that he transfers the tenement in alodium, ad alodem, or the like. Even so we know that Norman clerks of the eleventh century, in their own country and in England, made no difficulty about saying A tenet terram illam de B in alodio. We are apt, as M. Brutails says, to give too sharp an edge to the legal terms of the middle ages, to treat them as fixed, whereas they were vague and fluid. The same term dominium has to serve for sovereignty and for ownership; the king's supremacy, the state's supremacy, has to appear as a directité féodale or not to appear at all. Thence spring the inept controversies of later lawyers. Louis XV has succeeded to the rights of Charlemagne in Roussillon, and, if we are to define the rights of Louis, we ought to know—which means in the present context that we ought to construct—the rights of Charles. M. Brutails is juge au tribunal supérieur d’Andorre, and as such must have ever in his mind a splendid example of that fusion of private property with political dominion which is characteristic of the middle ages. He is at his best when he is explaining how ancient law gets perverted when it is forced to solve modern problems. M. Errera has much to say about the same topic, much that is good; but by a practical example he shows us how unavoidable this process of perversion is. If alodium cannot always be translated by dominium, property, ownership, what shall we say of tréfonds? Is it not an intensified form of absolute property: does it not answer to our English “very own”? Must not the tréfoncier of a piece of land be, among all the various people who have rights in or over that land, that one who is in a superlative sense its owner, fundarius, seu, ut ita loquar, fundariissimus? But then it was the use of this word in a document of 1479, which in these last years gave rise to a long dispute between the masuirs of Châtelineau and one of the departments of the Belgian government, of which dispute M. Errera's work is likely to be for the world at large the most important outcome. He contends that in the document in question the word tréfonds did not mean the ownership of the soil, but meant a seignory over the soil, and in this he may be right; still he more easily convinces us that in a given context the word does not stand for the ownership known to modern private law, than that it ever pointed to rights which we could correctly call purely political. And yet a modern court of justice has to make its choice, to force its dilemmas through all historical obstacles, and to decide that a disputed tract of land belongs to these masuirs, or to the commune of Châtelineau, or to the Belgian state as representative of a dissolved abbey.

As to the legal and economic condition of the individual peasant, we hear more from Roussillon than from Namur. When M. Brutails speaks of this he constantly reminds us of England. He hardly mentions a service or a due for which any reader of Seebohm or Vinogradoff could not supply a parallel. Such a passage as the following will seem very familiar—if we except two or three outlandish words—to those who have glanced at English custumals:—

“Hec sunt consuetudines castri de Taltavolio [Tautavel] que sunt inter homines predicti castri et domini regis Majoricarum, scilicet quod homines qui non sunt domini Regis qui manent in predicto castro faciunt dicto domino Regi duas iovas quolibet anno, scilicet unam iovam in ciminterio et aliam in stivo, tamen si habent animalia cum quibus possint laborare. Item, homines qui sunt dicti domini Regis qui laborant cum animalibus faciunt dicto domino Regi in ciminterio et in estate et iuvant seminare bladum castri quousque sit seminatum; tamen in istis non intelligimus illos qui sunt avenidissi. Item, omnes homines dicti domini Regis debent triturare bladum castri de Taltavolio in area et debent eum mundare quousque sit pulcrum et debent eum deferre cum suis bestiis ad castrum predictum, cum pane et vino tantum dicti castri. Item debent amenar molas molendinorum dicti castri de Taltavolio, cum pane et vino dicti castri,” and so forth.

But if M. Brutails has discovered the whole, or anything like the whole, truth—and he seems to have been indefatigable in his search for it—it certainly follows that the labour which the peasant of Roussillon had to do for his lord was trivial when compared with that which was due from the English villanus. The English virgater would have made light of it. He would have said, “Here are ‘boon-days,’ it is true, but there is none of that steady ‘week work’ which oppresses me at home.” Some of these peasants of Roussillon were, like the Roman coloni, bound to the soil; they were affocati; they were homines de remensa; they were obliged to a continua statica. M. Brutails seeks the origin of this in contract. A man binds himself facere in dicta grangia residenciam personalem cum tota familia sua, et facere fochum et locum, prout in mansis est consuetum. He may promise this for a term of six years, or he may promise it for all eternity. But true slavery, we are told, disappeared in the eleventh century, or rather after that the only slaves were the infidels—very curious is this list of things sold, mansus et fumus et ortus cum pertinenciis eorum et sarracenus et asinus et census denariorum et aliarum rerum—and nothing that could be called servage, nothing that Beaumanoir would have called servage, took the place of slavery. This book comes just at the right moment to enforce what Vinogradoff has been telling us, that, “in a sense, the feudal law of England was the hardest of all in western Europe.”

In a valuable chapter M. Brutails speaks of the communes of Roussillon, denying by the way that they can be connected with the Roman municipia; still, according to the picture that he draws, communes and communal property have not played so large a part in the agricultural economy of this part of the world as some of us might have expected. The commune, in his eyes, has long been capable of owning, and has owned, land, but he does not allow himself any speculations about a time when lands normally belonged rather to communities than to individuals. He holds, as already said, that the profitable history of Roussillon goes back only to what, having regard to some other countries, we may call a pretty recent date. The evicted Saracens leave behind them a void, and this void is filled by conquerors who are already far gone in feudalism. Therefore it is not to Roussillon that we must look for any primitive communalism. Communal property and communal droits d’usage, rights of pasture and the like, he would trace chiefly to grants made, or encroachments suffered, by feudal lords, lords who were already by law the lords of the land. On the other hand, M. Errera, who tells us comparatively little about the individual peasant, has a great deal to say about the village community. He has been brought to the study of medieval affairs by certain modern facts and modern difficulties. These he discusses at very great length, giving in full all the documents that bear upon them. Still, he cannot be charged with describing them too minutely. We best see the real complexity of the problems of medieval communalism when they are brought into contact with modern law, when a court of justice or a governmental bureau unravels all the known facts, and then confesses that it knows not how to deal with them. Very briefly, let us try to state the nature of the cases which have arisen of late years in Belgium, and which have made M. Errera an historian.

Within the territory of a certain village there is a large wood. This, to use an English phrase, has been dealt with as “a timber estate”; the timber periodically cut down upon it has been sold. This wood has not been treated as forming part of the ordinary biens communaux of the village. The profits of it have not been enjoyed by the commune, nor have they been divided among all the members of the commune; they have been enjoyed by a group of persons having some such name as masuirs. This group is defined in various ways in various villages. At Châtelineau, for example, in order to be a masuir one must be domiciled and resident (manant et habitant) within the limits of the commune: one must have a house. To be a mansionarius one must have a mansus; also one must own within the ancient jurisdiction of the Court of St Bartholomew (the court which once belonged to the collegiate church of St Bartholomew at Liège) a mesure of meadow or a jurnal of arable land. The mesure being equal to some 23, the jurnal to some 31 ares, the number of these privileged persons may bear but a small ratio to the number of the inhabitants of the commune. At Châtelineau there were recently but 108 masuirs, while the sum of the population exceeded 8000. But though only a few of the inhabitants will get any profit out of the wood, still it is usual to find that, in some way or another, the communal assembly has taken some part in its management.

Well now, to whom does this wood belong; in whom is the ownership of it? The question is not one of a merely theoretical interest—far from it: the masuirs want to sell the land and divide the price amongst them, or they want to divide the land itself, so that each masuir may become the owner of a separate strip. In such a case several solutions may be possible. We may attribute the ownership (a) to the masuirs as a corporation, (b) to the masuirs as a group of co-proprietors, (c) to the commune. It is with problems such as this in his mind that M. Errera has been exploring the past history of many different villages.

Each case, of course, has its own peculiarities, and, as we understand, its inherent difficulty is sometimes complicated by laws of the revolutionary age which suppressed all “lay corporations,” and handed over their property to the state. A theory therefore which would make the masuirs of old times a corporation has to be rejected unless we do not shrink from the conclusion that ever since the beginning of this century these woods have been enjoyed by those who had no title to them. For the rest, we seem brought face to face in a practical fashion with, among other problems, the question that has been much debated in Germany ever since Beseler drew his famous contrast between Volksrecht and Juristenrecht. What is the true nature of the land-holding community of the middle ages? Is it a universitas, a juristic person; is it, on the other hand, just a group of co-owners; or is it a tertium quid? M. Errera will make us think of Gierke's answer and Heusler's answer and Sohm's trenchant dogma, “Vermögensgemeinschaft mit körperschaftlicher Verwaltungsorganisation.” M. Errera is much against any solution individualiste. In this, if foreigners may dare to take a side, we shall probably be at one with him so long as he is arguing as to what is expedient, or what ought to be. We may well think that a solution communaliste which treated these lands as biens communaux would make for the general good; still better would be legislation which provided a fair compensation for the “vested interests” of the masuirs. But when M. Errera argues that this solution communaliste is required by history, we are by no means certain that we can agree with him, though he has stated his case with skill and learning.

When we speak of one of two solutions of a practical legal difficulty as being the more historical, we are using a somewhat ambiguous term. We may mean that this solution will best reproduce, so far as modern means will allow, some state of affairs which we regard as having been original and rightful, and as having never been rightfully altered. On the other hand, we may mean that, so far from recurring to the old, we are completing the as yet unfinished work of history. A political revolution is in progress, one of those slow revolutions, let us suppose, which are always going on in England; shall we say that history requires a restoration or shall we say that history will only be satisfied when the revolutionary principles which have hitherto been but partially triumphant have attained to a full realisation? But let the term be taken in either sense, we have many doubts as to the superior “historicalness” of the solution communaliste. The conclusion to which, if we mistake not, M. Errera would like to bring us is that at some period these lands belonged to the village commune, that all the inhabitants of a given district had some right to enjoy them, and that the restrictions which have excluded many of the inhabitants to the profit of the few are of later date. We do not think that the documents industriously collected by him prove this, and yet a student of the parallel English documents would say that it requires much proof. At all events, in England, so soon as the curtain rises and we have clear history, the rights of the villagers in woods, wastes, and waters are normally bound up with the tenure by them as individuals of arable lands and houses; the commoners are, we may say, masuirs.

We cannot help suspecting that if M. Errera had been able to obtain a more copious supply of documents from the early middle ages he would have found that so far back as he could trace these droits d’usage, they were intimately connected with the individualistic ownership of manses, and that he would have relegated any more definitely communal arrangement to the realm of prehistoric guess-work. As to the acquisition of the ownership of the soil, the evidence that he tenders seems to show that the masuirs and the communes alike rely for their title on pretty modern events. The masuirs of Châtelineau, for example, are the successors in the title of the chapter of St Bartholomew of Liège, and of the abbey of Soleilmont; it is only since 1749 that they have owned the debatable wood. Then if, on the other hand, the requisite historical solution is to be one in which historical tendencies are to achieve their accomplishment, we shall find much in M. Errera's book, and very much elsewhere, which will make us think that in these village affairs the tendency towards individualism has been until very lately the main historical tendency. So, at least, an Englishman is likely to think. Our own insular experience seems to be that out of a vague undifferentiated somewhat, which was neither merely a universitas, nor yet merely a group of co-owners, nor yet again any definite tertium quid, co-proprietorship, or, in other words, individualism, emerged as the most powerful, and, in course of time, as the all-absorbing, element. We could wish that foreign writers when they discuss the village community would face the fact that the term biens communaux has no English equivalent. The English village owns no land, and, according to our common law, it is incapable of owning land. It never definitely attained to a “juristic personality.” Far be it from us to say that this is other than a misfortune; but we are speaking of medieval history, and the English common law has some right to be regarded as an extremely conservative exponent of medieval principles; it has been stupid and clumsy, if you please, but, at any rate, it has kept a tenacious grip of ancient ideas. No doubt, too, it has been onesided: it has utterly ignored all that it could not bring within narrow ancient formulas. All that we are concerned to urge is that already in the thirteenth century the corporative element was so feeble that law could ignore it and draw a hard line between the borough which can hold land and the village which cannot. Already the villagers, if they held land in undivided shares, treated themselves, and were treated by law, as a group of co-owners, each with his own proprietary right. We may have lost much by our individualism, but we evaded many most intricate difficulties. In one place M. Errera suggests as a solution of the problem of Châtelineau—la propriété appartenait aux masuirs ut universi et la jouissance ut singuli. This is a curious variation on Dr Sohm's formula—Vermögensgemein-schaft mit körperschaftlicher Verwaltungsorganisation. Sometimes it may seem to us that such phrases attribute legal theories to men who had none, and who were quite willing to accept any one of the many possible solutions of those practical questions which arose from time to time. At any rate, in England the solution individualiste long ago presented itself as the obvious solution.

If in speaking of these books we have said too little of Roussillon and Namur, too much of England, we may seek to excuse ourselves in the eyes of M. Brutails and M. Errera by saying, as we can with truth, that their work will be of great value to all Englishmen who are studying the history of property in land, and even to those who have England more especially in their minds.

[1]English Historical Review, Oct. 1892.

[2]Étude sur la Condition des Populations Rurales du Roussillon au Moyen Age. Par Jean-Auguste Brutails. Les Masuirs: Recherches historiques et juridiques sur quelques Vestiges des Formes anciennes de la Propriété en Belgique. 2 vols., par Paul Errera.