Tribal Custom in Anglo-Saxon Law / Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'

by Frederic Seebohm

The fact that in exceptional cases family holdings were able to maintain their own under manorial management must not be allowed to lead us to underrate the power of the manorial element. There were in tribal custom itself as described by Tacitus elements of what we have elsewhere spoken of as the embryo manor, but this must not blind our eyes to the fact that something more was required to produce the general uniformity of holdings and single succession upon manorial estates than tribal custom working alone.

If from a tribal point of view we try to understand the growth of manorial serfdom and see how on the Continent it was seemingly the result of the combination of two leading factors, tribal custom and Roman methods of land management, it becomes hardly possible to ignore the presence of something like the same combination of two interacting factors on British or English ground.

With the manorial side of serfdom in its connection with the widely prevalent open field system we have already attempted to deal in a former volume. That there may have been some continuity and continuance of estates managed on the Roman system can hardly be denied. However far the policy of extermination of the old inhabitants was carried, it never extended over the whole area. And the whole of Britain was not conquered in the same century. Even if the continuity of estates in Britain should be considered to have been entirely broken by the Anglo-Saxon invasions (which is hardly conceivable), it must be admitted that continuity and likeness between England and the Continent as to land management was very soon restored on monastic and other ecclesiastical estates, and perhaps also upon what was Royal domain. Nor can it be doubted that herein was a force greatly strengthening the manorial element.

Tribal custom only would not meet the whole case.

If we limit our view to the tribal side only of the problem, we recognise that in Scandinavia and in the Cymric districts of our own island and in Ireland tribal principles working alone tended powerfully, without help from the Roman side, to produce a class of tenants becoming adscripti glebæ after four generations of occupation, but it did not produce either in Norway or in Wales or Ireland or in Celtic Scotland that general and typical form of occupation in uniform yardlands or ‘huben’ so prevalent in England and Germany on manorial estates with ostensibly single succession and services in so many points resembling those of the Roman colonate.

Whether the manor was the indirect or direct successor of the Roman Villa—i.e. whether the continuity was broken or not—the manorial use of the open-field system of agriculture seems to be required to produce the uniformity of holdings in yardlands and the single succession which marked what is roughly called the serfdom of the manorial estate.

The open-field system not of manorial origin.

It is hardly necessary to repeat that the open-field system itself was not of manorial origin. It was essentially an economic result and differed very greatly in its forms. Its main object seems to have been fairness and equality of occupation. Under tribal custom, in Wales, it arose out of coaration of portions of the waste or pasture by the common plough-team to which the tribesmen or the taeogs, as the case might be, contributed oxen. The strips were day-works of the plough taken in rotation by the contributors according to the place of their oxen in the plough-team for the season, and they returned into common pasture when the crop had been removed. The tribesman in the pastoral stage was the owner of oxen but not of the strips ploughed by them. They were merged again in the common pasture of the district in which he had rights of grazing for his cattle. And the cattle, and not the corn crops, were the main thing upon which the system turned.

Whatever method of distribution may have been followed, as arable farming increased and the strips became more and more permanently arable, mostly on the two-field or the three-field system, the area of unploughed land was more and more restricted and the pasture over the stubbles and fallows obviously became more and more essential. The cattle, on the one hand, required the pasture on the stubbles and fallows, and the land, before being ploughed again, required the manure arising from the pasturing of the flocks and herds upon it.

Where open-field husbandry still subsists in Western Europe, whether on this or the other side of the Channel, the owner of the strips has still no right of grazing upon his own strips till upon the appointed day when the common right begins of all the holders to graze their cattle in a common herd or flock over the whole area. This right is known in France as the ‘vaine pâture,’ and it is still the most important and indestructible element in the open-field husbandry. In the great open fields around Chartres a man may plant his strips with vines if he likes, but to this day, if he does so, he must let the sheep of the commune graze over them after a certain date, in exercise of the immemorial right of the vaine pâture.