Integration and Growth
Although there were many interrelated features of manorial law which helped to give it the character of an integrated system of rules and procedures, yet it lacked the high degree of logical coherence and the consciously principled character of canon law, and certainly of the Roman law taught in the universities.
Manorial law, indeed, was customary law, that is, it was largely unwritten (or more precisely, unenacted). Even compared with feudal law, however, which was also largely customary law, manorial law was much less consciously integrated, much more particularistic and diffuse. This was reflected in the absence of contemporary scholarly writings on manorial law. It appears that few professional jurists were concerned with its development.The relative lack of sophistication of manorial law was also connected with the fact that it took part of its character from the other systems of law which impinged on it. When the manorial court decided cases of slander, for example, it was usually applying -- perhaps in a very crude and unlearned manner -- the canon law; when it decided cases of assault or theft or trespass to land or to chattels, it was usually imitating the tort law and criminal law of the locality or dukedom or principality in which it was situated; when it laid down rules concerning rights and duties attached to peasant land holding it borrowed many concepts from feudal (that is, lord-vassal) law. In addition, the procedure of manorial courts was strongly influenced by the local law. In short, one would not expect to find in the manorial courts innovations in branches of law that were being developed concurrently by other legal systems.
Yet there were certain distinctive elements of manorial law that did receive conscious legal formulation in terms of principles and concepts. In the eleventh and twelfth centuries the legal concept of serfdom was formulated for the first time.
Serfs were called glebae adscriptae ("[persons] attached to the soil"). This meant that they could not leave except under certain conditions. It also meant that they could not be evicted -- again, except under certain conditions. Perry Anderson has written that the first use of the term glebae adscriptae in the eleventh and twelfth centuries reflected a characteristic "lag" in the "juridical codification of economic and social relationships" that had been in existence for centuries. 22 But the new legal term actually changed the preexisting situation, if only by giving it a new legal character. Henceforth the bondage-328
of serfs was legally defined, which meant that serfdom became a matter of rights and duties and not merely a matter of habit and will and bargaining power. On the one hand, the lord had a right to many things that had previously been subject to challenge. On the other hand, the serf's duties, legally classified in terms of specific labor services, rents in kind, and customary dues, became fixed and could not legally be increased or varied by the lord.
Moreover, the serf was given the possibility of buying off his bondage; he could become a free man through the legal process of manumission. This typically involved a symbolic ceremony or written charter granted on condition of immediate payment of a sum of money or of a perpetual commitment, binding upon heirs, to pay certain charges or perform certain services.
This is not to say that the serf did not remain poor and oppressed. It is only to say that he had acquired rights under a system of law. He was henceforth a person, a member of the manorial community, part of "the whole homage." 23 He coexisted on the manor with free peasants, with other freemen holding under various forms of tenure involving only honorable services, with manorial officials, knights, the lord of the manor and his household -- all being members of a community divided according to status but united as suitors in the manorial court, that is, as citizens of the manor.
This unity was the foundation of manorial law. It was linked with the very mode of production, the open-field system of agriculture.The unity of the manor was reflected in the capacity of its inhabitants, sometimes collectively and sometimes individually, to lease the manor from the lord and to dispose of it at their will. Between the late eleventh and the fourteenth and fifteenth centuries such leases became more and more common. They were a way out for lords who were being increasingly pressured by peasant demands, peasant uprisings, and peasant desertions.
The legal definitions of peasant obligation also had important economic consequences, since they contributed to the tendency to substitute fixed cash payments for labor services and rents in kind. Since a similar tendency to commute services into monetary obligations characterized feudal legal relations between vassals and lords, the lord of the manor had an interest in collecting from his tenants a sufficient cash income to enable him to meet his obligations to his superior lord. As early as the thirteenth century in many if not most parts of Europe, manors came to be considered incomeÂproducing enterprises, and persons were appointed to manage them, with the duty to collect and pay over the required income, called firma or feorm, from which is derived the word "farm. In addition "farmers" responsible for fixed returns were often replaced by professional managers who were expected to maximize
-329- manorial cash profits and to render annual accounts. Thus the gradual conversion of peasants into lessees (or alternatively, hired laborers) was connected with the gradual transformation of the manor itself from a community into a business; and these two processes were linked with the increasing reification of both feudal (lord_vassal) rights and obligations and manorial (lord_peasant) rights and obligations.
These developments did not, of course, take place uniformly throughout Europe, although everywhere there was a general process of absorption of the manor by the peasants.
In France and western Germany, however, the nobility succeeded in maintaining quasi-manorial domination over all classes living within their private jurisdictions, whether or not they were tenants. This was accomplished chiefly through numerous small taxes and services (banatites,corvees, and others), no one of which, taken alone, was excessively onerous, but all of which, taken together, were extremely oppressive. These included: payments for crushing grapes at the lord's wine press, baking bread in the lord's oven, and grinding corn at the lord's mill, over all of which the landlords maintained a monopoly; labor services in repairing roads, constructing bridges, and the like; and tolls on roads, fairs, and markets, fines for transfers of land and goods, and other assorted aids and taxes.Despite these and many other variations in different regions and different countries, manorial law underwent the same general pattern of development throughout the West during the period from the eleventh to the fifteenth centuries. This remarkable fact bears witness to the Western concept of manorial law as an integrated body of concepts and procedures. It also bears witness to the related concept of manorial law as a system capable of incremental growth. As in feudal law, so in manorial law the characteristics attributed to the system became tendencies of the system, and the tendencies were self-fulfilling. Growth, once believed in, became inevitable. Manorial legal concepts and institutions had a certain life of their own, which was just as "basic" and just as much a part of the infrastructure as the economics of production and distribution of goods. Even so, it is striking that despite extreme diversity of local conditions manorial law underwent the same general movements from stage to stage virtually everywhere in western Europe.
Perhaps the most significant stage in this development was the widespread emancipation of the serfs in the thirteenth, fourteenth, and fifteenth centuries, which must be seen in part as a culmination of the greater legalization of lord-peasant relations introduced in the late eleventh and twelfth centuries.
Here manorial law was in tension with feudal law, for under feudal law, emancipation of a serf by his lord could only be accomplished with the consent of the lord's superior; without that consent, a serf whose lord had emancipated him simply escheated to the superior, and the lord who had granted the emancipation was estopped from330- claiming him again. 24 Thus for a serf to buy his freedom required that he pay off both his immediate lord and all superiors in the feudal chain. Nevertheless, in the long run both the economic and the legal circumstances favored emancipation. In many places the resistance of superior lords to the freeing of serfs was counteracted by a strong movement for collective
emancipation. In Italy the initiative came from urban communes, whose motive was partly to increase the number of free taxpayers and partly to attract workers from the countryside; as early as 1256_57, Bologna enfranchised all serfs within its jurisdiction. In France the initiative came from the crown itself, whose motive was partly to derive revenue from redemption payments and partly to appease peasant unrest and forestall the peasant revolts that were endemic in France as well as in England, Italy, Spain, and elsewhere. Thus in 1290 and again after 1310 French kings offered freedom to serfs on various crown lands____________________________ for a price. By 1450 serfdom had been abolished in
almost all of the western parts of Europe, though not in the central and eastern parts.
It would be a profound mistake to discount the moral and legal aspects of enfranchisement, for it was not only the economic hardships of serfdom which caused European peasants to rebel in the thirteenth, fourteenth, and fifteenth centuries but also the gross injustices of their servitude. In the era after the Papal Revolution, which was fought in the name of the freedom of the church, and especially of the clergy, it is not surprising that demands for freedom were raised by other polities and other classes as well.
One revolutionary cry for freedom in the twelfth and thirteenth centuries was for freedom of the cities. Concurrently came the cry for freedom of the peasantry, which grew much louder in the fourteenth century; and in that connection freedom was said to be the natural condition of all men. Thus in declaring the enfranchisement of the serfs of Bologna in 1256-57, the city authorities declared that serfdom was a consequence of the fall of man, that man's natural conditon was freedom. Similarly, in proclaiming the enfranchisement of serfs on certain crown lands in 1315 and 1318, the kings Louis X and Philip the Long of France declared, in language that would be echoed in succeeding centuries:As according to the law of nature everyone should be born free, but by certain usages and customs of great age preserved in our kingdom... and also perhaps because of the misdeeds of their predecessors, many persons of our common people have fallen into the bonds of servitude and into various conditions, which much displeased us, considering that our kingdom is called the Kingdom of the Franks... we have ordered... that these servitudes shall be brought to freedom and to those who by birth or long standing or recently through marriage or residence have fallen into servile condition, or could so fall, freedom shall be given on good and convenient terms. 25
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Even if one assumes that the French kings were hypocrites, they were nevertheless appealing to ideals and values that were widely shared. The peasants, surely, would have agreed that serfdom was against the law of nature, that by the law of nature "everyone should be born free," and that freedom was man's natural condition. The peasants also hoped, no doubt, that the abolition of serfdom wo uld lead to a better economic life; but even if that hope proved ill_founded, emancipation was required. It was required by the moral order of the universe.
This conviction was not, however, simply a product of a theory of natural law. It was much more the product of historical experience, and especially the experience of the development of manorial law during the late eleventh, twelfth, and early thirteenth centuries. The grant of legal personality to serfs within the manor, that is, the recognition of them as "citizens" of the manorial community, with the duty and right of suit of court, was itself an implicit challenge to serfdom long before any movement arose to abolish it. The challenge was nurtured, in turn, by the belief in and the experience of the integrity and growth of legal systems, including the system of manorial law. The belief in and experience of the integrity of manorial law required that serfs be treated on an equal basis with free peasants. The belief in and experience of the growth of manorial law required that in the course of time such equality be given full legal expression.
Thus it was the consciousness of the injustice of serfdom in a legal sense, its fundamental illegality, coupled with the belief in the capacity to correct that injustice by law, that changed the mere fact of the economic exploitation of serfs into a social and political cause in which members of all classes could eventually unite.
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