vill2 [89]
and innovation alone -- it proceeds from a pre-feudal classification of holdings which started from the contrast between rent and labour, and not from that between certain and uncertain tenure. Again, the law of gavelkind, although not extending over the whole of Kent, belongs to so important and numerous a portion of the population, that, as in the case of ancient demesne, it comes to be considered as the typical custom of the county, and attracts all other variations of local usage into its sphere of influence. The Custumal published among the Statutes speaks of the personal freedom of all Kentish-men, although it has to concern itself specially with the gavelkind tenantry. The notion of villainage gets gradually eliminated from the soil of the province, although it was by no means absent from it in the beginning. Thirteenth-century law evidently makes the contrast between Kent and adjoining shires more sharp than it ought to have been, if all the varieties within the county were taken into account. But, if it was possible from the legal standpoint to draw a hard and fast line between Kent on one side, Sussex or Essex on the other, it is quite impossible, from the historian's point of view, to grant that social condition has developed in adjoining places out of entirely different elements, without gradations and intermediate shades. Is there the slightest doubt that the generalising jurisprudence of the thirteenth century went much too far in one direction, the generalising scribes of the eleventh century having gone too far in the other? Domesday does not recognise any substantial difference between the state of Kent and that of Sussex; the courts of the thirteenth century admitted a complete diversity of custom, and neither one nor the other extreme can be taken as a true description of reality. The importance of the custom of Kent can hardly be overrated: it shows conclusively what a mistake it would be to accept without criticism the usual generalising statement as to the different currents of social life in mediaeval England. It will hardly be doubted moreover, that the Kentish case proves that elements of freedom bequeathed by history but ignored by the Domesday Survey come to the fore in consequence of certain facts which remain more or less hidden from view and get recognised and protected in spite of feudalism. If so, can the silence of Domesday or the absence of legal protection in the thirteenth century stand as sufficient proof against the admission of freedom as an important constitutive element in the historical process leading to feudalism? Is it not more natural to infer that outside Kent there were kindred elements of freedom, kindred remnants of a free social order which never got adequate recognition in the Domesday terminology or left definite traces in the practice of the Royal courts? One more subject remains to be touched upon, and it may be approached safely now that we have reviewed the several social groups on the border between freeholders and villains. It is this -- to what extent can the existence of a class of freeholders among the peasantry of feudal England be maintained? It has been made a test question in the controversy between the supporters of the free and those of the servile community, and it would seem, at first sight, on good ground. Stress has been laid on the fact, that such communities as are mentioned in Domesday and described in later documents are (if we set aside the Danish counties) almost entirely peopled by villains, that free tenants increase in number through the agency of commutation and grants of demesne land, whereas they are extremely few immediately after Domesday, and that in this way there can be no talk of free village communities this side of the Conquest.(77*) This view of the case may be considered as holding the field at the present moment: its chief argument has been briefly summarised by the sentence-the villains of Domesday are not the predecessors in title of later freeholders.(78*) I cannot help thinking that a good deal has to be modified in