ter of fact； however； it will be found that； save in very few cases； we possess indications to show us which way we ought to look。 Another difficulty arises from the fact that the law of this period was fashioned by kings of French origin and lawyers of Norman training。 What share is to be assigned to their formal influence？ and what share comes from that old stock of ideas and facts which they could not or would not destroy？ We may hesitate as to details in this respect。 It is possible that the famous paragraph of the so…called Laws of William the Conqueror； prescribing in general terms that peasants ought not to be taken from the land or subjected to exactions；（3*） is an insertion of the Norman period； although the great majority of these Laws are Saxon gleanings。 It is likely that the notion of wainage was worked out under the influence of Norman ideas； the name seems to show it； and perhaps yet more the fact that the plough was specially privileged in the duchy。 It is to be assumed that the king； not because he was a Norman but because he was a king； was interested in the welfare of subjects on whose back the whole structure of his realm was resting。 But the influence of the strangers went broadly against the peasantry； and it has been repeatedly shown that Norman lawyers were prompted by anything but a mild spirit towards them。 The Dialogus de Scaccario is very instructive on this point； because it was written by a royal officer who was likely to be more impartial than the feudatories or any one who wrote in their interest would be； and yet it makes out that villains are mere chattels of their lord； and treats them throughout with the greatest contempt。 And so； speaking generally； it is to the times before the Conquest that the stock of liberty and legal independence inherent in villainage must be traced； even if we draw inferences merely on the strength of the material found on this side of the Conquest。 And when we come to Saxon evidence； we shall see how intimately the condition of the ceorl connects itself with the state of the villain along the main lines and in detail。 The case of ancient demesne is especially interesting in this light。 It presents； as it were； an earlier and less perfect crystallisation of society on a feudal basis than the manorial system of Common Law。 It steps in between the Saxon soc and tun on the one hand； and the manor on the other。 It owes to the king's privilege its existence as an exception。 The procedure of its court is organised entirely on the old pattern and quite out of keeping with feudal ideas； as will be shown by…and…by。 Treating of it only in so far as it illustrates the law of status； it presents in separate existence the two classes which were fused in the system of the Common Law； villain socmen are carefully distinguished from the villains； and the two groups are treated differently in every way。 A most interesting fact； and one to be taken up hereafter； is the way of treating the privileged group as the normal one。 Villain socmen are the men of ancient demesne； villains are the exception； they appear only on the lord's demesne； and seem very few； so far as we can make a calculation of numbers。 Villain socmen enjoy a certainty of condition which becomes actual tenant…right when the manor passes from the crown into a private lord's hand。 As to its origin there can be no doubt ancient demesne is traced back to Saxon times in as many words and by all our authorities。 A careful analysis of the law of ancient demesne may even give us valuable clues to the condition of the Saxon peasantry。 The point just noticed； namely； that the number of villain socmen is exceedingly large and quite out of proportion to that of other tenants； gives indirect testimony that the legal protection of the tenure was not due merely to an influx of free owners deprived of their lands by conquest。 This is the explanation given by Bracton； but it is not sufficient to account for the privileged position of almost all the tenants within the manor。 A considerable part of them surely held before the Conquest not as owners and not freely； but as tenants by base services； and their fixity of tenure is as important in the constitution of ancient demesne as is the influx of free owners。 If this latter cause contributed to keep up the standard of this status； the former cause supplied that tradition of certainty to which ancient demesne right constantly appeals。 Another point to be kept firmly in view is that the careful distinction kept up on the ancient demesne between villain socmen and villains； proves the law on this subject to have originated in the general distribution of classes and rights during the Saxon period； and not in the exceptional royal privilege which preserved it in later days； I mean； that if certainty of condition had been granted to the tenantry merely because it was royal tenantry； which is unlikely enough in itself； the certainty would have extended to tenants of all sorts and kinds。 It did not； because it was derived from a general right of one class of peasants to be protected at law； a right which did not in the least preclude the lord from using his slaves as mere chattels。 And so I may conclude： an investigation into the legal aspect of villainage discloses three elements in its complex structure。 Legal theory and political disabilities would fain make it all but slavery； the manorial system ensures it something of the character of the Roman colonatus； there is a stock of freedom in it which speaks of Saxon tradition。
NOTES：
1。 Brunner； Entstehung der Schwurgericht； has made an epoch on the discussion of this phenomenon。
2。 I shall treat at length of the Norman Conquest in my third essay。
3。 Leg。 Will。 Conq。 i； 29 （Schmid； p。 340）。
Chapter 5
The Servile Peasantry of Manorial Records
It would be as wrong to restrict the study of villainage to legal documents as to disregard them。 The jurisprudence and practice of the king's courts present a one…sided； though a very important view of the subject； but it must be supplemented and verified by an investigation of manorial records。 With one class of such documents we have had already to deal； namely with the rolls of manorial courts； which form as it were the stepping…stone between local arrangements and the general theories of Common Law。 So…called manorial 'extents' and royal inquisitions based on them lead us one step further； they were intended to describe the matter…of…fact conditions of actual life； the distribution of holdings； the amount and nature of services； the personal divisions of the peasantry； their evidence is not open to the objection of having been artificially treated for legal purposes。 Treatises on farming and instructions to manorial officers reflect the economic side of the system； and an enormous number of accounts of expenditure and receipts would enable the modern searcher； if so minded； to enter even into the detail of agricultural management。（1*） We need not undertake this last inquiry； but some comparison between the views of lawyers and the actual facts of manorial administration must be attempted。 Writers on Common Law invite one to the task by recognising a great variety of local customs； Bracton； for instance； mentioning two notable deviations from general rules in the department of law under discussion。 In Cornwall the children of a villain and of a free woman were not all unfree； but some followed the father and others the mother。（2*） In Herefordshire the master was not bound to produce his serfs to answer criminal charges。（3*） If such customs were sufficiently strong to counteract the influence of general rules of Common Law； the vitality of local distinctions was even more felt in those cases where they had no rules to break through； It may be even asked at the very outset of the inquiry whether there is not a danger of our being distracted by endless details。 I hope that the following pages will show how the varieties naturally fall into certain classes and converge towards a few definite positions； which appear the more important as they were not produced by artificial arrangement from above。 We must be careful however； and distinguish between isolated facts and widely…spread conditions。 Another possible objection to the method of our study may be also noticed here； as it is connected with the same difficulty。 Suppose we get in one case the explanation of a custom or institution which recurs in many other cases； are we entitled to generalise our explanation？ This seems methodically sound as long as the contrary cannot be established； for the plain reason that the variety of local facts is a variety of combinations and of effects； not of constitutive elements and of causes。 The agents of development are not many； though their joint work shades off into a great number of variations。 We may be pretty sure that a result repeated several times has been effected by the same factors in the same way； and if in some instances these factors appear manifestly； there is every reason to suppose them to have existed in all the cases。 Such reflections are never convincing by themselves； however； and the best thing to test them will be to proceed from these broad statements to an inquiry into the particulars of the case。 The study of manorial evidence must start from a discussion as to terminology。 The names of the peasantry will show the natural subdivisions of the class。 If we look only to the unfree villagers； we shall notice that all the varieties of denomination can easily be arranged into four classes： one of these classes has in view social standing； another economic condition； a third starts from a difference of services； and a fourth from a difference of holdings。 The line may not be drawn sharply between the several divisions； but the general contrast cannot be mistaken。 The term of most common occurrence is； of course； villanus。 Although its etymology points primarily to the place of dwelling； and indirectly to specific occupations； it is chiefly used during the feudal period to denote servitude。 It takes in both the man who is personally unfree and stands in complete subjection to the lord； and the free person settled on servile land。 Both classes mentioned and distingu