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Title: Villainage in England
Essays in English Mediaeval History
Author: Paul Vinogradoff
Release Date: February 14, 2012 [EBook #38876]
Language: English
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Villainage in England
VINOGRADOFF
Villainage in England
ESSAYS IN
ENGLISH MEDIAEVAL HISTORY
BY
SIR PAUL VINOGRADOFF
OXFORD
AT THE CLARENDON PRESS
_Oxford University Press, Ely House, London W. 1_
GLASGOW NEW YORK TORONTO MELBOURNE WELLINGTON
CAPE TOWN SALISBURY IBADAN NAIROBI LUSAKA ADDIS ABABA
BOMBAY CALCUTTA MADRAS KARACHI LAHORE DACCA
KUALA LUMPUR HONG KONG TOKYO
FIRST PUBLISHED 1892
REPRINTED LITHOGRAPHICALLY IN GREAT BRITAIN
AT THE UNIVERSITY PRESS, OXFORD
BY VIVIAN RIDLER
PRINTER TO THE UNIVERSITY
1968
PREFACE
A foreigner's attempt to treat of difficult and much disputed points of
English history requires some justification. Why should a Russian
scholar turn to the arduous study of English mediaeval documents? Can he
say anything of sufficient general interest to warrant his exploration
of so distant a field?
The first question is easier to answer than the second.
There are many reasons why we in Russia are especially keen to study
what may be called social history--the economic development of nations,
their class divisions and forms of co-operation. We are still living in
surroundings created by the social revolution of the peasant
emancipation; many of our elder contemporaries remember both the period
of serfdom and the passage from it to modern life; some have taken part
in the working out and putting into practice of the emancipating acts.
Questions entirely surrendered to antiquarian research in the West of
Europe are still topics of contemporary interest with us.
It is not only the civil progress of the peasantry that we have to
notice, but the transformation and partial decay of the landed gentry,
the indirect influence of the economic convulsions on politics, ideas,
and morality, and, in a more special way, the influence of free
competition on soil and people that had been fettered for ages, the
passage from 'natural husbandry' to the money system, the substitution
of rents for labour, above all, the working of communal institutions
under the sway of the lord and in their modern free shape. Government
and society have to deal even now with problems that must be solved in
the light of history, if in any light at all, and not by instinct
groping in the dark. All such practical problems verge towards one main
question: how far legislation can and should act upon the social
development of the agrarian world. Are economic agencies to settle for
themselves who has to till land and who shall own it? Or can we learn
from Western history what is to be particularly avoided and what is to
be aimed at? I do not think that anybody is likely to maintain at the
present day, that, for instance, a study of the formation and
dissolution of the village community in the West would be meaningless
for politicians and thinkers who have to concern themselves with the
actual life of the village community in the East.
Another powerful incitement comes from the scientific direction lately
assumed by historical studies. They have been for a long time very
closely connected with fine literature: their aim was a lifelike
reproduction of the past; they required artistic power, and stirred up
feelings as well as reflective thought. Such literary history has a
natural bent towards national tradition, for the same reason that
literature is attracted by national life: the artist gains by being
personally in touch with his subject; it is more easy for him to cast
his material into the right mould. Ancient history hardly constitutes an
exception, because the elements of classical civilisation have been
appropriated by European nations so as to form part of their own past.
What I call literary history has by no means done all its work. There is
too much in the actions of men that demands artistic perception and even
divination on the part of the historian, to allow this mode of treatment
to fall into decay. But nobody will deny that historical study is
extending more and more in the direction of what is now called
anthropology and social science. Historians are in quest of laws of
development and of generalisations that shall unravel the complexity of
human culture, as physical and biological generalisations have put into
order our knowledge of the phenomena of nature.
There is no subject more promising from this point of view than the
history of social arrangements. It borders on political economy, which
has already attained a scientific standing; part of its material has
been fashioned by juridical doctrine and practical law, and thereby
moulded into a clear, well-defined shape; it deals with facts recurring
again and again with much uniformity, and presenting great facilities
for comparison; the objects of its observation are less complex than the
phenomena of human thought, morality, or even political organisation.
And from the point of view of the scientific investigator there can be
no other reason for taking up a particular epoch or nation, but the hope
of getting a good specimen for analysis, and of making use of such
analysis for purposes of generalisation.
Now I think that there can be no better opportunity for studying early
stages of agrarian development than that afforded by English mediaeval
history. The sources of information are comparatively abundant in
consequence of the powerful action of central authority; from far back
in the feudal time we get legal and fiscal documents to enlighten us,
not only about general arrangements but even about details in the
history of landed property and of the poorer classes. And the task of
studying the English line of development is rendered especially
interesting because it stands evidently in close connexion with the
variations of the same process on the continent. Scandinavian, German,
French, Italian, and Spanish history constantly present points of
comparison, and such differences as there are may be traced to their
origins just because so many facts are in common to start with. I think
that all these considerations open a glorious vista for the enquirer,
and the interest excited by such publications as those of Fustel de
Coulanges proves that the public is fully alive to the importance of
those studies in spite of their dry details.
What could I personally undertake to further the great objects of such
investigation? The ground has been surveyed by powerful minds, and many
controversies show that it is not an easy one to explore. Two main
courses seemed open in the present state of the study. A promising
method would have been to restrict oneself to a definite provincial
territory, to get intimately acquainted with all details of its
geography, local history, peculiarities of custom, and to trace the
social evolution of this tract of land as far back as possible, without
losing sight of general connexions and analogies. How instructive such
work may become may be gathered from Lamprecht's monumental monograph on
the Moselland, which has been rightly called by its author 'Deutsches
Wirthschaftsleben im Mittelalter.' Or else, one might try to gather the
general features of the English mediaeval system as embodied in the
numerous, one might almost say innumerable, records of the feudal
period, and to work back from them into the imperfectly described
pre-feudal age. Such enquiry would necessarily leave out local
peculiarities, or treat them only as variations of general types. From
the methodical point of view it has the same right to existence as any
other study of 'universalities' which are always exemplified by
individual beings, although the latter are not made up by them, but
appear complicated in every single case by additional elements.
Being a foreigner, I was driven to take the second course. I could not
trust myself to become sufficiently familiar with local life, even if I
had the time and opportunity to study it closely. I hope such
investigations may be taken up by scholars in every part of England and
may prosper in their hands; the gain to general history would be simply
invaluable. And I was not sorry of the necessity of going by the second
track, because I could hope to achieve something useful even if I went
wrong on many points. Every year brings publications of Cartularies,
Surveys, Court-rolls; the importance of these legal and economic records
has been duly realised, and historians take them more and more into
account by the side of annals and statutes. But surely some attempt
ought to be made to concentrate the results of scattered investigation
in this field. The Cartularies of Ramsey, Battle, Bury St. Edmunds, St.
Paul's, the Hundred Rolls, the Manorial Records of Broughton and King's
Ripton, give us material of one and the same kind, which, for all its
wealth and variety, presents great facilities for classification and
comparison[1]. I have seen a good many of these documents, both
published and in manuscript, and I hope that my book may be of some
service in the way of concentrating this particular study of manorial
records. I am conscious how deficient my work is in many respects; but
if by the help of corrections, alterations, additions, it may be made to
serve to some extent for the purpose, I shall be glad to have written
it. I may say also that it is intended to open the way, by a careful
study of the feudal age, for another work on the origins of English
peasant life in the Norman and pre-Norman periods.
One pleasant result the toil expended on mediaeval documents has brought
me already. I have come into contact with English scholars, and I can
say that I have received encouragement, advice, and support in every
case when I had to apply for them, and in so large and liberal a measure
as I could hardly hope for or expect. Of two men, now dead, I have to
repeat what many have said before me. Henry Bradshaw was the first to
lay an English MS. cartulary before me in the Cambridge University
Library; and in all my travels through European libraries and archives I
never again met such a guide, so ready to help from his inexhaustible
store of palaeographical, linguistic and historical learning. Walford
Selby was an invaluable friend to me at the Record Office--always
willing and able to find exactly what was wanted for my researches.
It would be impossible to mention all those from whom I have received
help in one way or another, but I should like to speak at least of a
few. I have the pleasant duty of thanking the Marquis of Bath for the
loan of the Longleat MS. of Bracton, which was sent for my use to the
Bodleian Library. Lord Leigh was kind enough to allow of my coming to
Stoneleigh Abbey to work at a beautiful cartulary in his possession, and
the Hon. Miss Cordelia Leigh took the pains of making for me some
additional extracts from that document. Sir Frederick Pollock and Mr.
York Powell have gone through the work of reading my proofs, and I owe
to them many suggestions for alterations and improvements. I have
disputed some of Mr. Seebohm's opinions on mediaeval history; but I
admit freely that nobody has exercised a stronger influence on the
formation of my own views, and I feel proud that personal friendship has
given me many opportunities of admiring the originality and width of
conception of one who has done great things for the advancement of
social history. As for F.W. Maitland, I can only say that my book would
hardly have appeared at all if he had not taken infinite trouble to
further its publication. He has not only done everything in his power to
make it presentable to English readers in style and wording, but as to
the subject-matter, many a friendly suggestion, many a criticism I have
had from him, and if I have not always profited by them, the blame is to
be cast entirely on my own obstinacy.
PAUL VINOGRADOFF.
CONTENTS
PAGE
INTRODUCTION 1
FIRST ESSAY.
_The Peasantry of the Feudal Age._
CHAPTER I.
THE LEGAL ASPECT OF VILLAINAGE. GENERAL CONCEPTIONS 43
CHAPTER II.
RIGHTS AND DISABILITIES OF THE VILLAIN 59
CHAPTER III.
ANCIENT DEMESNE 89
CHAPTER IV.
LEGAL ASPECT OF VILLAINAGE. CONCLUSIONS 127
CHAPTER V.
THE SERVILE PEASANTRY OF MANORIAL RECORDS 138
CHAPTER VI.
FREE PEASANTRY 178
CHAPTER VII.
THE PEASANTRY OF THE FEUDAL AGE. CONCLUSIONS 211
SECOND ESSAY.
_The Manor and the Village Community._
CHAPTER I.
THE OPEN FIELD SYSTEM AND THE HOLDINGS 223
CHAPTER II.
RIGHTS OF COMMON 259
CHAPTER III.
RURAL WORK AND RENTS 278
CHAPTER IV.
THE LORD, HIS SERVANTS AND FREE TENANTS 313
CHAPTER V.
THE MANORIAL COURTS 354
CHAPTER VI.
THE MANOR AND THE VILLAGE COMMUNITY. CONCLUSIONS 397
APPENDIX 411
INDEX 461
FOOTNOTES
INTRODUCTION.
When the time comes for writing a history of the nineteenth century, one
of the most important and attractive chapters will certainly be devoted
to the development of historical literature. The last years of a great
age are fast running out: great has been the strife and the work in the
realm of thought as well as in the material arrangement of life. The
generations of the nineteenth century have witnessed a mighty revival of
religious feeling; they have attempted to set up philosophical systems
as broad and as profound as any of the speculations of former times;
they have raised the structure of theoretical and applied science to a
height which could hardly have been foreshadowed some two hundred years
ago. And still it is to historical study that we have to look as the
most characteristic feature of the period. Medieval asceticism in its
desperate struggle against the flesh, and Puritanism with its sense of
individual reconciliation with God, were both more vigorous forms of
religious life than the modern restorations of faith and Church, so
curiously mixed up with helplessness, surrender of acquired truth,
hereditary instincts, and utilitarian reflection. In philosophy, Hegel's
metaphysical dialectic, Schopenhauer's transformation of Kant's
teaching, and the attempts of English and French positivism at
encyclopaedical science may be compared theoretically with Plato's
poetical idealism or with the rationalistic schools of the seventeenth
and eighteenth centuries. But it would be difficult to deny, that in
point of influence on men's minds, those older systems held a more
commanding position than these: Hegel seems too arbitrary and
phantastical, Schopenhauer too pessimistic, positivism too incomplete
and barren as to ultimate problems to suit the practical requirements of
philosophy; and people are already complaining of the decay of
philosophical study. In science, again, the age of Darwin is certainly
second to none, but it has to share its glory with the age of Newton,
and it may be reasonably doubted whether the astronomer, following in
the footsteps of Galileo and Kepler, was not actuated by even greater
thirst and pride of knowledge than the modern biologist or geologist. It
is otherwise with regard to history.
[Progress of historical methods.]
Students of science are wont to inveigh against the inexact character of
historical research, its incoherence and supposed inability to formulate
laws. It would be out of place here to discuss the comparative value of
methods and the one-sided preference given by such accusers to
quantitative analysis; but I think that if these accusers were better
acquainted with the subject of their attacks, or even more attentive to
the expressions of men's life and thought around them, they would hardly
dare to maintain that a study which in the short space of a century has
led to a complete revolution in the treatment of all questions
concerning man and society, has been operating only by vague assumptions
and guesses at random. An investigation into methods cannot be
undertaken in these introductory pages, but a general survey of results
may be attempted. If we merely take a single volume, Tocqueville's
Ancien Régime, and ask ourselves whether anything at all like it could
have been produced even in the eighteenth century, we shall have a sense
of what has been going on in the line of historical study during the
nineteenth. Ever since Niebuhr's great stroke, historical criticism has
been patiently engaged in testing, sifting, and classifying the original
materials, and it has now rendered impossible that medley of discordant
authorities in which eighteenth-century learning found its confused
notions of Romans in French costume, or sought for modern constitutional
ideas as manifest in the policy of the Franks. Whole subjects and
aspects of social life which, if treated at all, used to be sketchily
treated in some appendix by the historian, or guessed at like a puzzle
by the antiquarian, have come to the fore and are recognised as the
really important parts of history. In a word, the study of the past
vacillates no longer between the two extremes of minute research leading
to no general results and general statements not based on any real
investigation into facts. The laws of development may still appear only
as dim outlines which must be more definitely traced by future
generations of workers, but there is certainly a constant progress of
generalisation on firmly established premises towards them.
[Growing influence of history on kindred subjects.]
What is more striking, the great change in the ways and results of
history has made itself felt on all the subjects which surround it.
Political economy and law are assuming an entirely new shape under the
influence of historical conceptions: the tendency towards building up
dogmatic doctrine on the foundation of abstract principle and by
deductive methods is giving way to an exact study of facts in their
historical surroundings, and to inquiries into the shifting conditions
under which the problems of social economy and law are solved by
different epochs. As a brilliant representative of legal learning has
ironically put it, it would be better for one nowadays to be convicted
of petty larceny than to be found deficient of 'historical-mindedness.'
The influence of historical speculation on politics is yet more definite
and direct: even the most devoted disciples of particular creeds, the
most ardent advocates of reform or reaction dare not simply take up the
high standing ground of abstract theory from which all political
questions were discussed less than a hundred years ago: the socialist as
well as the partisan of aristocracy is called on to make good his
contention by historical arguments.
It may be urged that the new turn thus taken is not altogether
beneficial for practical life. Men of fanatical conviction were more
likely to act and die for the eternal truth revealed to them, than
people reflecting on the relative character of human arrangements. But
can one get blissfully onesided by merely wishing to be so? And is it
not nobler to seek knowledge in the hope that it will right itself in
the end, than to reject it for the sake of being comfortable? However
this may be, the facts can hardly be denied: the aspiration of our age
is intensely historical; we are doing more for the relative, than for
the absolute, more for the study of evolution than for the elucidation
of principles which do not vary.
[Sketch of the literary development of social history as a necessary
introduction to its treatment.]
It will not be my object to give a sketch of the gradual rise of
historical study in the present century: such an undertaking must be
left to later students, who will command a broader view of the subject
and look at it with less passion and prejudice than we do now. But Lord
Acton's excellent article[2] has shown that the task is not quite
hopeless even now, and I must try, before starting on my arduous inquiry
into the social history of the middle ages in England, to point out what
I make of the work achieved in this direction, and what object I have in
view myself. Quite apart from any questions of detail which may come
under consideration as the treatment of the subject requires it, I have
to say in what perspective the chief schools of historians present
themselves to my view, in what relation they stand to each other, to
show how far they have pushed the inquiry, and what problems still
remain unsolved. Such a preliminary sketch must not be carried out with
a view to criticism and polemics, but rather as the general estimate of
a literary movement in its various phases.
[Late recognition of the value of social history.]
It is a remarkable fact, that the vast importance of the social side of
history has been recognised later than any other aspect of that study.
Stating things very broadly, one may say that it was pushed to the fore
about the middle of our century by the interests and forces at play in
actual life: before 1848 the political tendency predominates; after 1848
the tide turns in favour of the social tendency. I mean that in the
first half of the century men were chiefly engaged in reorganising the
State, in trying to strike a balance between the influence of government
and the liberties of the people. The second half of the century is
engrossed by the conflict between classes, by questions of economical
organisation, by reforms of civil order. Historical literature, growing
as it was in the atmosphere of actual life, had to start from its
interests, to put and solve its problems in accordance with them. But it
is no wonder that the preceding period had already touched upon a number
of questions that were fated to attract most attention in later
research. The rise of the Constitution, for instance, could not be
treated without some regard being paid to the relative position of
classes; it would have been out of the question to speak of political
feudalism without taking into account the social bearing of the system.
And so a sketch of the literary treatment of social questions must begin
with books which did not aim directly at a description of social
history.
[Characteristics of the work done in the seventeenth and eighteenth
centuries.]
I shall not detain the reader over the work achieved in the seventeenth
and eighteenth centuries. The learning of a Selden or of a Madox is
astounding, and a student of the present day has to consult them
constantly on particular questions; but they never had in mind to
embrace the history of their country as a whole. Facts are brought into
a system by Coke, but the system is strictly a legal one; undigested
historical knowledge is made to yield the necessary store of leading
cases, and, quite apart from the naive perversion of most particulars,
the entire view of the subject is thoroughly opposed to historical
requirements, for it makes the past an illustration of the present, and
regards it as planned on the same lines. There is no lack of books
setting forth historical proof for some favourite general thesis or
arranging facts according to some general idea, but such attempts were
distinguished by unbounded imagination and by endless sacrifices of fact
to the object of the writer's devotion. The curious literary byplay to
the struggle of political party which Aug. Thierry[3] has artistically
illustrated in France from the writings of Boulainvilliers and Dubos,
Mably and Lézardière, could certainly be matched in England by a tale
of the historical argumentation of Brady[4], or Petyt[5], or Granville
Sharp. Nothing can be more eloquent in a sense than the title given by
this last author to his book on the system of frankpledge:--"An account
of the Constitutional English Polity of Congregational Courts, and more
particularly of the great annual court of the people, called the View of
Frankpledge, wherein the whole body of the Nation was arranged into the
regular divisions of Tythings, Hundreds, etc.:--the happy effect of that
excellent institution, in preventing robberies, riots, etc., whereby, in
law, it was justly deemed 'Summa et maxima securitas:'--that it would be
equally beneficial to all other nations and countries, as well under
monarchical as republican establishments; and that, to the English
Nation in particular, it would afford an effectual means of reforming
the corruption of Parliament by rendering the representation of the
people perfectly equal, in exact numerical proportion to the total
number of householders throughout the whole realm[6]."
Historical research, in the true sense of the word, was indeed making
its first appearance in the eighteenth century, and it was more fruitful
in England than in any other country, because England was so far ahead
of the Continent in its political condition: the influence of an
intelligent society in political affairs had for its counterpart a
greater insight into the conditions of political development. But the
great English historians of the eighteenth century were looking to
problems in other fields than that of social history. Robertson was
prompted by an interest in the origins of that peculiar community called
Western Europe, so distinctly dismembered in its component States and so
closely united by ideal and material ties; Gibbon could see the shadows
of the old world in which the new world was living; both had been
attracted to research by an admirable sense of influences deeper and
stronger than nationality, or State, or class, and both remained
indifferent to the humbler range of English social history. Hume took
his stand on England, but he had to begin with a general outline and the
explanation of the more apparent changes in State and Church.
[Blackstone's Commentaries.]
In this way current notions on our questions remained towards the close
of the eighteenth century still undisturbed by writers of a high order.
We may take as a fair sample of such current notions Sir William
Blackstone's historical digressions, especially those in the second
volume of his Commentaries[7]. There is no originality about them, and
the lack of this quality is rather an advantage in this case: it enables
us through one book to glance at an entire literature. I may be allowed
to recall its most striking points to the mind of my readers.
The key to the whole medieval system and to the constitution emerging
from it is to be found in feudalism. 'The constitution of feuds had its
original from the military policy of the northern or Celtic nations, the
Goths, the Huns, the Franks, the Vandals, and the Lombards, who poured
themselves into all the regions of Europe, at the declension of the
Roman Empire. It was brought by them from their own countries, and
continued in their respective colonies as the most likely means to
secure their new acquisitions, and to that end large districts or
parcels of land were allotted by the conquering general to the superior
officers of the army, and by them dealt out again in smaller parcels or
allotments to the inferior officers and most deserving soldiers.'
'Scarce had these northern conquerors established themselves in their
new dominions, when the wisdom of their constitutions, as well as their
personal valour, alarmed all the princes of Europe. Wherefore most, if
not all, of them thought it necessary to enter into the same or a
similar plan of policy. And thus, in the compass of a very few years,
the feudal constitution, or the doctrine of tenure, extended itself over
all the western world.'
'But this feudal polity, which was thus by degrees established over all
the Continent of Europe, seems not to have been received in this part of
our island, at least not universally and as a part of our national
constitution, till the reign of William the Norman. This introduction,
however, of the feudal tenures into England by King William does not
seem to have been effected immediately after the Conquest, nor by the
mere arbitrary will and power of the Conqueror, but to have been
gradually established by the Norman barons, and afterwards universally
consented to by the great Council of the nation.' 'The new polity
therefore seems not to have been _imposed_ by the Conqueror, but
nationally and freely adopted by the general assembly of the whole
realm.' 'By thus consenting to the introduction of feudal tenures, our
English ancestors probably meant no more than to put the kingdom in a
state of defence by establishing a military system. But whatever their
meaning was, the Norman interpreters ... gave a very different
construction to this proceeding, and thereupon took a handle to
introduce, not only the rigorous doctrine which prevailed in the duchy
of Normandy, but also such fruits and dependencies, such hardships and
services, as were never known to other nations.' 'And from hence arises
the inference, that the liberties of Englishmen are not (as some
arbitrary writers would represent them) mere infringements of the king's
prerogative, but a restoration of the ancient constitution, of which our
ancestors had been defrauded by the art and finesse of the Norman
lawyers, rather than deprived by the force of the Norman arms.'
The structure of the component parts is (for Blackstone) as ancient as
the constitution of the whole. The English manor is of Saxon origin in
all its essential characteristics, but the treatment of the people
within the manor underwent a very notable change in consequence of the
Norman invasion. In Saxon times the common people settled on folkland
were immersed in complete slavery. Their condition was improved by the
Conquest, because the Normans admitted them to the oath of fealty. And
the improvement did not stop there: although the peasantry held their
plots only by base tenure and at the lord's will, the lord allowed in
most cases a hereditary possession. In this way out of the lord's will
custom arose, and as custom is the soul or vital principle of common
law, the Courts undertook in the end to protect the base tenure of the
peasantry against the very lord whose will had created it. Such was the
rise of the copyhold estate of modern times.
Blackstone's work is a compilation, and it would be out of the question
to reduce its statements to anything like consistency. The rationalistic
mode of thought which has left such a peculiar stamp on the eighteenth
century, appears in all its glory in the laying out of the wise military
polity of feudalism. But scarcely has our author had time to show the
rapid progress of this plan all round Europe, when he starts on an
entirely new tack, suggested by his wish to introduce a historical
justification of Constitutional Monarchy. Feudal polity is of late
introduction in England, and appears as a compact between sovereign and
subjects; original freedom was not destroyed by this compact, and later
infringements of contractual rights by kings ultimately led to a
restoration and development of ancient liberties. In the parts of the
treatise which concern Private Law the keynote is given throughout by
that very Norman jurisprudence on which such severe condemnation is
passed with regard to Public Law. The Conquest is thus made to appear
alternately as a source of danger, struggle, and hardship from one point
of view, and as the origin of steady improvement in social condition
from another. In any case the aristocratic cast of English life is
deduced from its most ancient origins, and all the rights of the lower
orders are taken as the results of good-humoured concession on the part
of the lords of the soil and of quiet encroachment against them.
[Revolution in Historical literature. The Romantic school.]
Statements and arguments in Blackstone's style could hold water only
before that great crisis in history and historical literature by which
the nineteenth century was ushered into the world. The French
Revolution, and the reaction against it, laid open and put to the test
the working of all the chief forces engaged in historical life.
Government and social order, nationality and religion, economic
conditions and modes of thought, were thrown into the furnace to be
consumed or remoulded. Ideas and institutions which had towered over
centuries went down together, and their fall not only brought home the
transitory character of human arrangements, but also laid bare the
groundwork of society, which however held good in spite of the
convulsions on its surface. The generation that witnessed these storms
was taught to frame its politics and to understand history in a new
fashion[8]. The disorderly scepticism of the eighteenth century was
transformed by Niebuhr into a scientific method that paved the way by
criticism to positive results. On the other hand, the Utopian doctrines
of political rationalism were shattered by Savigny's teaching on the
fundamental importance of tradition and the unconscious organic growth
of nations. In his polemic with Thibaut, the founder of the historical
school of law enters a mighty protest against wanton reform on the
ground of a continuity of institutions not less real than the continuity
of language, and his 'History of Roman Law during the Middle Ages'
demonstrated that even such a convulsion as the Barbarian Invasion was
not sufficient to sweep away the foundations of law and social order
slowly formed in the past. Eichhorn's 'History of German Public and
Private Law' gave detailed expression to an idea which occurs also in
some of Savigny's minor works--to the idea, namely, that the German
nations have had to run through their history with an engrained tendency
in their character towards political dismemberment and social
inequality. This rather crude attempt at generalising out some
particular modern features and sanctioning them by the past is of
historical interest, because it corresponds to the general problem
propounded to history by the Romantic school: viz. to discover in the
various manifestations of the life of a nation its permanent character
and the leading ideas it is called to embody in history.
The comparative soundness of the English system had arrayed it from the
very beginning on the side of Conservatism against Revolution, and Burke
was the first to sound the blast of a crusade against subversive
theories. No wonder the historical discoveries on the Continent found a
responsive echo in English scholarship. Allen[9] took up the
demonstration that the Royal power in England had developed from the
conceptions of the Roman Empire. Palgrave[10] gave an entirely new
construction of Anglo-Saxon history, which could not but exercise a
powerful influence on the study of subsequent periods. His book is
certainly the first attempt to treat the problems of medieval social
history on a large scale and by new methods. It deserves special
attention[11].
[Sir Francis Palgrave.]
The author sat down to his work before the Revolution of 1830, although
his two volumes were published in 1832. He shares the convictions of
very moderate Liberalism, declares in favour of the gradual introduction
of reforms, and against any reform not framed as a compromise between
actual claims. Custom and tradition did not exclude change and
development in England, and for this reason the movement towards
progress did not tear that people from the inheritance of their
ancestors, did not disregard the mighty agency of historical education.
In order to study the relative force of the elements of progress and
conservatism in English history, Palgrave goes behind the external play
of institutions, and tries to connect them with the internal growth of
legal principles. It is a great, though usual, mistake to begin with
political events, to proceed from them to the study of institutions, and
only quite at the end to take up law. The true sequence is the inverse
one. And in England in particular the Constitution, with all its showy
and famous qualities, was formed under the direct influence of judicial
and legal institutions. In accordance with this leading view Palgrave's
work begins by a disquisition on classes, forms of procedure and
judicial organisation, followed up by an estimate of the effects of the
different Conquests, and ultimately by an exposition of the history of
government. We need not feel bound by that order, and may start from the
conclusion which gives the key to Palgrave's whole system.
The limited monarchy of England is a result of the action of two
distinct elements, equally necessary for its composition. It is a
manifestation of the monarchical power descended both in principle and
in particular attributes from the Roman Empire. If this political idea
had not been at work the kingdoms of the barbarians would have presented
only loose aggregates of separate and self-sufficient political bodies;
on the other hand, if this political idea had been supreme, medieval
kings would have been absolute. The principles of Teutonic and of Roman
polity had to work together, and the result was the medieval State with
an absolute king for its centre, and a great independence of local
parts. The English system differed from the continental in this way,
that in England the free judicial institutions of the localities reacted
on the central power, and surrounded it by constitutional limitations,
while the Continent had to content itself with estates of a very
doubtful standing and future. It is easy to see in this connexion how
great an importance we must assign to the constitution of local Courts:
the shires, hundreds, and townships are not mere administrative
divisions, but political bodies. That the kingdom formed itself on their
basis, not as an absolute but as a parliamentary monarchy, must be
explained in a great measure by the influence of the Norman Conquest,
which led to a closer union of the isolated parts, and to a
concentration of local liberty in parliament.
But (such is Palgrave's view) the importance of Conquests has been
greatly overrated in history. The barbarian invasion did not effect
anything like a sudden or complete subversion of things; it left in
force and action most of the factors of the preceding period. The
passage from one rule to another was particularly easy in England, as
most tribes which occupied the island were closely related to each
other. Palgrave holds that the Britons, Anglo-Saxons, Danes, and Normans
all belong to one and the same Teutonic race. There were, of course (he
allows), Celtic elements among the Britons, but the greater part
consisted of Belgian Kymrys, whose neighbours and kin are to be found on
the Continent as Saxons and Frisians. The conquest of the island by
bands of seafaring Saxons did not lead by any means to the wholesale
destruction and depopulation which the legendary accounts of the
chronicles report. The language of the Britons has not been preserved,
but then no more has the Celtic language in Gaul. The Danish and Norman
invasions had even less influence on social condition than the Saxon. It
is only the Roman occupation that succeeded in introducing into the life
of this island important and indestructible traits.
If we look at the results of all these migrations and ethnographical
mixtures, we have first to notice the stratifications of English
society according to rank. It is settled definitely enough in the Saxon
period on an aristocratic basis. In the main, society consists of eorls
and ceorls, noblemen and serfs. The difference does not consist merely
in a diversity of legal value, social influence and occupation, but also
in the fact that the ceorl may economically and legally be dependent on
the eorl, and afterwards on the thane. How did this aristocratic
constitution arise? Social distinctions of this kind may sometimes
originate in the oppression of the weak by the strong, and in voluntary
subjection, but, as a rule, they go back to conquest. There is every
reason to believe that the Anglo-Saxon conquerors, who were very few in
number, became the privileged class of the new States, and reduced the
Britons to serfdom; a corroboration of this assumption may be found in
the fact that the services of Celtic and Saxon peasantry are extremely
alike.
It is more difficult to trace the influence of different races in the
agrarian system, of which the township or manor is the unit. It is by
comparing it with the forms in its immediate neighbourhood that one gets
to understand its origin. The Roman organisation of husbandry and
ownership on the basis of individualism is too well known to be
described. In marked contrast with it stands the Celtic community, of
which survivals were lingering for a long time in Ireland and Wales.
Here the land is in the ownership of tribal groups: rights of
individuals and families expand and collapse according to the
requirements and decisions of the entire tribe; there is no hereditary
succession, but every grown-up clansman has a claim to be endowed with a
plot of land, and as a consequence of this, all land in separate
possession is constantly liable to be divided by the tribal community.
The Anglo-Saxon system is an intermediate stage between Roman
individualism and Celtic communalism. No wonder that the Saxons, who at
home followed a system closely resembling the Celtic, modified it when
they got acquainted with Roman forms and entered into their Roman
inheritance in Great Britain. The mixed organisation of the township
was the result of the assimilation.
[Estimate of Palgrave's work.]
Such are in the main those conclusions of Palgrave which have a direct
bearing on the questions before us. It is easy to perceive that they are
permeated by certain very general historical conceptions. He is greatly
impressed by the 'Vis inertiae' of social condition, and by the
continuity of historical development arising from it. And so in his work
the British population does not disappear without leaving any traces of
its existence; the Roman dominion exercises a most conspicuous influence
on important aspects of later condition--on central power, feudalism,
and agrarian organisation: the most recent of the Conquests--the Norman
invasion--is reduced to a comparatively secondary share in the framing
of society. The close connexion between Palgrave's ideas and the
currents of thought on the Continent is not less notable in his attempts
to determine the peculiarities of national character as manifested in
unconscious leanings towards certain institutions. The Teutonic system
is characterised by a tendency towards federalism in politics and an
aristocratic arrangement of society. The one tendency explains the
growth of the Constitution as a concentration of local self-government,
the other leads from the original and fundamental distinction between a
privileged class and a servile peasantry to the original organisation of
the township under a lord.
There can be no question as to the remarkable power displayed in
Palgrave's work, or as to the value of his results. He had an enormous
and varied store of erudition at his command, and the keenest eye for
observation. No wonder that many of his theories on particular subjects
have been eagerly taken up and worked out by later scholars. But apart
from such successful solutions of questions, his whole conception of
development was undoubtedly very novel and fruitful. One of Palgrave's
main positions--the intimate connexion between the external history of
the Constitution and the working of private law in the courts--opened a
wholly new perspective for the study of social history. But naturally
enough the first cast turned out rather rough and distorted. Palgrave is
as conspicuous for his arbitrary and fanciful treatment of his matter,
as for his learning and ingenuity. He does not try to get his data into
order or completeness, and has no notion of the methods of systematic
work. Comparisons of English facts with all kinds of phenomena in the
history of kindred and distant peoples sometimes give rise to suggestive
combinations, but, in most cases, out of this medley of incongruous
things they lead only to confusion of thought. In consequence of all
these drawbacks, Palgrave's attempt only started the inquiry in most
directions, but could not exhaust it in any.
[Romanists and Germanists.]
The two great elements of Western civilisation--Roman tradition and
Teutonic tendencies--were more or less peacefully brought together in
the books of Savigny, Eichhorn, and Palgrave. But in process of time
they diverged into a position of antagonism. Their contrast not only
came out as a result of more attention and developed study; it became
acute, because in the keen competition of French and German scholarship,
historians, consciously and unconsciously, took up the standpoint of
national predilection, and followed their bias back into ancient times.
Aug. Thierry, while protesting against the exaggerations of
eighteenth-century systems, considered the development of European
nations almost entirely as a national struggle culminating in conquest,
but underlying most facts in the history of institutions. He began, for
the sake of method, by tracing the conflict on English ground where
everything resolved itself to his eye into open or hidden strife between
Norman and Saxon[12]. But William the Bastard's invasion led him by a
circuitous way to the real object of his interest--to the gradual rise
of Gallo-Roman civilisation against the Teutonic conquest in France:
historical tendencies towards centralised monarchy and municipal
bourgeoisie were connected by him with the present political condition
of France as the abiding legacy of Gallo-Roman culture[13].
Men of great power and note, from Raynouard[14] and B. Guérard[15] down
to Fustel de Coulanges[16] in our own days, have followed the same track
with more or less violence and exaggeration. They are all at one in
their animosity towards Teutonic influence in the past, all at one in
lessening its effects, and in trying to collect the scattered traces of
Romanism in principle and application. The Germans did not submit meekly
to the onslaught, but went as far as the Romanists on the other side.
Löbell[17], Waitz[18], and Roth[19]--to speak only of the heads of the
school--have held forth about the mighty part which the Teutons have
played in Europe; they have enhanced the beneficial value of Germanic
principles, and tried to show that there is no reason for laying to
their account certain dark facts in the history of Europe. The Germanist
school had to fight its way not only against Romanism, but against
divers tenets of the Romantic school as represented by Savigny and
Eichhorn, of which Romanists had availed themselves. The whole doctrine
was to be reconsidered in the light of two fundamental assumptions. The
foundations of social life were sought not in aristocracy, but in the
common freedom of the majority of the people: the German middle class,
the 'Bürgers,' who form the strength of contemporary Germany, looked to
the past history of their race as vouching for their liberty; the
destinies of that particular class became the test of social
development. Then again the disruptive tendency of German national
character was stoutly denied, and all the historical instances of
disruption were demonstrated to be quite independent of any leaning of
the race. In the great fermentation of thought which led indirectly to
the unification of Germany, the best men in the country refused to
believe that Western Europe had fallen to pieces into feudalism because
Teutonic development is doomed to strife and helplessness by deeply
engrained traits of character[20]. German scholarship found a most
powerful ally in this period of its history in the literature of kindred
England: German and English investigators stood side by side in the same
ranks. Kemble, K. Maurer, Freeman, Stubbs, and Gneist form the goodly
array of the Germanist School on English soil.
[Kemble.]
Kemble's position is, strictly speaking, an intermediate one: in some
respects he is very near to Eichhorn and Grimm; although his chief work
was published in 1849, he was not acquainted with Waitz's first books.
But Kemble is mostly in touch with those parts of Eichhorn's theory
which could be accepted by later Germanists; other important tenets of
the Romantic School are left in the shade or rejected, and as a whole
Kemble's teaching is essentially Germanistic. Kemble's 'Saxons in
England' takes its peculiar shape and marks an epoch in English
historical literature, mainly because it presents the first attempt to
utilise the enormous material of Saxon Charters, in the collection of
which Kemble has done such invaluable work. With this copious and exact,
but very onesided, material at his disposal, our author takes little
notice of current tales about the invasion of Great Britain by Angles
and Saxons. Such tales may be interesting from a mythological or
literary point of view, but the historian cannot accept them as
evidence. At the same time one cannot but wish to try and get certain
knowledge of an historical fact, which, as far as the history of England
is concerned, appears as the first manifestation of the Teutonic race in
its stupendous greatness. Luckily enough we have some means to judge of
the invasion in the names of localities and groups of population. Read
in this light the history of Conquest appears very gradual and ancient.
It began long before the recorded settlements, and while Britain was
still under Roman sway. The struggle with the Celts was a comparatively
easy one; the native population was by no means destroyed, but remained
in large numbers in the lower orders of society. Notwithstanding such
remnants, the history of the Anglo-Saxon period is entirely Teutonic in
its aspect, and presents only one instance of the general process by
which the provinces of the Empire were modified by conquerors of
Teutonic race.
The root of the whole social system is to be found in the Mark, which is
a division of the territory held jointly by a certain number of freemen
for the purposes of cultivation, mutual help and defence. The community
began as a kinship or tribe, but even when the original blood ties were
lost sight of and modified by the influx of heterogeneous elements, the
community remained self-sufficient and isolated. The whole fabric of
society rested on property in land: as its political divisions were
based on the possession of common lands, even so the rank of an
individual depended entirely on his holding. The Teutonic world had no
idea of a citizen severed from the soil. The curious fact that the
normal holding, the hide, was equal all over England (33-1/2 acres) can
be explained only by its origin; it came full-formed from Germany and
remained unchanged in spite of all diversities of geographical and
economical conditions.
The transformation of medieval society is, for Kemble, intimately
connected with the forms of ownership in land. The scanty population of
ancient times had divided only a very small part of the country into
separate holdings. The rest remained in the hands of the people to
supply the wants of coming generations. The great turn towards feudalism
was given by the fact that this reserve-fund lapsed into the hands of a
few magnates: the mass of free people being deprived of its natural
sphere of expansion was forced to seek its subsistence at the hands of
private lords (loaf-givers). From the point of view of personal status
the same process appears in the decrease of freedom among the people and
in the increase of the so-called Gesíð. According to Teutonic principles
a man is free only if he has land to feed upon, strength to work, and
arms to defend himself. The landless man is unfree; and so is the
Gesíðcundman, the follower, however strong and wealthy he may be
through his chief's grace. The contrast between the free ceorls tilling
their own land and the band of military followers, who are always
considered as personally dependent--this contrast is a marked one. From
the first this military following had played an important part in German
history. Most raids and invasions had been its work, and sometimes whole
tribes were attracted into its organisation, but during the first period
of Saxon history the free people were sufficiently strong to hold down
the power of military chiefs within certain bounds. Not so in later
development. With the growth of population, of inequalities, of social
competition, the relations of dependency are seen constantly gaining on
the field of freedom. The spread of commendation leads not only to a
change in the distribution of ranks, but to a dismemberment of political
power, to all kinds of franchises and private encroachments on the
State.
I may be excused for marshalling all these well-known points before the
public by the consideration that they must serve to show how intimately
these views are connected with the general principles of a great school.
The stress laid by Kemble on property in land ought to be noticed
especially: land gets to be the basis of all political and social
condition. This is going much further than Palgrave ever went; though
not further than Eichhorn. What actually severs Kemble from the
Romantics is his estimate of the free element in the people. He does not
try to picture a kind of political Arcadia in Saxon England, but there
is no more talk about the rightless condition of the ceorls or the
predominance of aristocracy. The Teutonic race towers above everything.
Although the existence of Celts after the Conquests is admitted, neither
Celtic nor Roman elements appear as exercising any influence in the
course of history. Everything takes place as if Germanic communities had
been living and growing on soil that had never before been appropriated.
Curiously enough the weakest point of Kemble's doctrine seems to lie in
its very centre--in his theory of social groups. One is often reminded
of Grimm by his account of the Mark, and it was an achievement to call
attention to such a community as distinct from the tribal group, but the
political, legal, and economical description of the Mark is very vague.
As to the reasoning about gilds, tithings, and hundreds, it is based on
a constant confusion of widely different subjects.
Generally speaking, it is not for a lawyer's acuteness and precision
that one has to look in Kemble's book: important distinctions very often
get blurred in his exposition, and though constantly protesting against
abstract theories and suppositions not based on fact, he indulges in
them a great deal himself. Still Kemble's work was very remarkable: his
extensive, if not very critical study of the charters opened his eyes to
the first-rate importance of the law of real property in the course of
medieval history: this was a great step in advance of Palgrave, who had
recognised law as the background of history, but whose attention had
been directed almost exclusively to the formal side--to judicial
institutions. And Kemble actually succeeded in bringing forward some of
the questions which were to remain for a long time the main points of
debate among historians.
[K. Maurer.]
The development of the school was evidently to proceed in the direction
of greater accuracy and improved methods. Great service has been done in
this respect by Konrad Maurer[21]. He is perhaps sometimes inclined to
magnify his own independence and dissent from Kemble's opinions, but he
has undoubtedly contributed to strengthen and clear up some of Kemble's
views, and has gone further than his predecessor on important subjects.
He accepts in the main Kemble's doctrines as to the Mark, the allotment
of land, the opposition of folkland and book-land, and expounds them
with greater fulness and better insight into the evidence. On the other
hand he goes his own way as to the Gesíðs (Gefolgschaft), and the part
played by large estates in the political process. Maurer reduces the
importance of the former and lays more stress on the latter than
Kemble[22]. Altogether the German scholar's investigations have been of
great moment, and this not only for methodical reasons, but also because
they lead to a complete emancipation of the school from Eichhorn's
influence.
[Freeman.]
As to the Conquests, Germanist views have been formulated with great
authority by Freeman. A comparison of the course of development in
Romance countries with the history of England, and a careful study of
that evidence of the chronicles which Kemble disregarded, has led the
historian of the Norman Conquest to the conclusion, that the Teutonic
invaders actually rooted out most of the Romanised Celtic population of
English Britain, and reduced it to utter insignificance in those western
counties where they did not destroy it. It is the only inference that
can be drawn from the temporary disappearance of Christianity, from the
all but complete absence of Celtic and Latin words in the English
tongue, from the immunity of English legal and social life from Roman
influence. The Teutonic bias which was given to the history of the
island by the Conquest of Angles and Saxons has not been altered by the
Conquest of the Normans. The foreign colouring imparted to the language
is no testimony of any radical change in the internal structure of the
people: it remained on the surface, and the history of the island
remained English, that is, Teutonic. Even feudalism, which appears in
its full shape after William the Bastard's invasion, had been prepared
in its component parts by the Saxon period. In working out particulars
Freeman had to reckon largely with Kemble's work and to strike the
balance between the conflicting and onesided theories of Thierry and
Palgrave. Questions of legal and social research concern him only so far
as they illustrate the problem of the struggle and fusion of national
civilisations. His material is chiefly drawn from chronicles, and the
history of external facts of war, government, and legislation comes
naturally to the fore. But all the numberless details tend towards one
end: they illustrate the Teutonic aspect of English culture, and assign
it a definite place in the historical system of Europe.
[Stubbs.]
Stubbs' 'Constitutional History,' embracing as it does the whole of the
Middle Ages, is not designed to trace out some one idea for the sake of
its being new or to take up questions which had remained unheeded by
earlier scholars. Solid learning, critical caution and accuracy are the
great requirements of such an undertaking, and every one who has had
anything to do with the Bishop of Oxford's publications knows to what
extent his work is distinguished by these qualities. If one may speak of
a main idea in such a book as the Constitutional History of a people,
Stubbs' main idea seems to be, that the English Constitution is the
result of administrative concentration in the age of the Normans of
local self-govermment formed in the age of the Saxons. This conclusion
is foreshadowed in Palgrave's work, but what appears there as a mere
hypothesis and in confusion with all kinds of heterogeneous elements,
comes out in the later work with the overwhelming force of careful and
impartial induction. Stubbs' point of view is a Germanist one. The book
begins with an estimate of Teutonic influence in the different countries
of Europe, and England is taken in one sense as the most perfect
manifestation of the Teutonic historical tendency. The influx of
Frenchmen and French ideas under William the Conqueror and after him
had important effects in rousing national energy, contributing to
national unification, settling the forms of administration and justice,
but at bottom there remained the Teutonic character of the nation. The
'Constitutional History' approaches the question of the village
community, but its object is strictly limited to the bearing of the
problem on general history and to the testimony of direct authority. It
starts from the community in land as described by Cæsar and Tacitus, and
notices that Saxon times present only a few scattered references to
communal ownership. Most of the arable land was held separately, but the
woods, meadow, and pasture still remained in the ownership of village
groups. The township with its rights and duties as to police, justice,
and husbandry was modified but not destroyed by feudalism. The change
from personal relations to territorial, and from the freedom of the
masses to their dependency, is already very noticeable in the Saxon
period. The Norman epoch completed the process by substituting
proprietary rights in the place of personal subordination and political
subjection. Still even after conquest and legal theory had been over the
ground, the compact self-government of the township is easily
discernible under the crust of the manorial system, and the condition of
medieval villains presents many traces of original freedom.
[Gneist.]
Gneist's work is somewhat different in colouring and closely connected
with a definite political theory. Tocqueville in France has done most to
draw attention to the vital importance of local self-government in the
development of liberal institutions; and Stubbs' history goes far to
demonstrate Tocqueville's general view by a masterly statement as to the
origins of English institutions. In Gneist's hands the doctrine of
decentralisation assumes a particular shape by the fact that it is
constructed on a social foundation; the German thinker has been trying
all along to show that the English influence is not one of
self-government only, but of aristocratical self-government. The part
played by the gentry in local and central affairs is the great point of
historical interest in Gneist's eyes. Even in the Saxon period he lays
stress chiefly on the early rise of great property, and the great
importance of 'Hlafords' in social organisation. He pays no attention to
the village community, and chiefly cares for the landlord. But still
even Gneist admits the original personal freedom of the great mass of
the people, and his analysis of the English condition is based on the
assumption, that it represents one variation of Teutonic development:
this gives Gneist a place among the Germanists, although his views on
particular subjects differ from those of other scholars of the same
school.[23]
[The Mark system.]
Its chief representatives have acquired such a celebrity that it is
hardly necessary to insist again, that excellent work has been done by
them for the study of the past. But the direction of their work has been
rather one-sided; it was undertaken either from the standpoint of
political institutions or from that of general culture and external
growth; the facts of agriculture, of the evolution of classes, of legal
organisation were touched upon only as subsidiary to the main objects of
general history. And yet, even from the middle of the century, the
attention of Europe begins to turn towards those very facts. The
'masses' come up with their claims behind the 'classes,' the social
question emerges in theory and in practice, in reform and revolution;
Liberals and Conservatives have to reckon with the fact that the great
majority of the people are more excited, and more likely to be moved by
the problems of work and wages than by problems of political influence.
The everlasting, ever-human struggle for power gets to be considered
chiefly in the light of the distribution of wealth; the distribution of
society into classes and conditions appears as the connecting link
between the economical process and the political process. This great
change in the aspect of modern life could not but react powerfully on
the aspect of historical literature. G.F. von Maurer and Hanssen stand
out as the main initiators of the new movement in our studies. The many
volumes devoted by G.F. Maurer[24] to the village and the town of
Germany are planned on a basis entirely different from that of his
predecessors. Instead of proceeding from the whole to the parts, and of
using social facts merely as a background to political history, he
concentrates everything round the analysis of the Mark, as the
elementary organisation for purposes of husbandry and ownership. The
Mark is thus taken up not in the vague sense and manner in which it was
treated by Kemble and his followers; it is described and explained on
the strength of copious, though not very well sifted, evidence. On the
other hand, Hanssen's masterly essays[25] on agrarian questions, and
especially on the field-systems, gave an example of the way in which
work was to be done as to facts of husbandry proper.
[Nasse.]
Nasse's pamphlet on the village community[26] may be considered as the
first application of the new methods and new results to English history.
The importance of his little volume cannot easily be overrated: all
subsequent work has had to start from its conclusions.
Nasse's picture of the ancient English agricultural system, though drawn
from scanty sources, is a very definite one. Most of the land is
enclosed only during the latter part of the year, and during the rest of
the year remains in the hands of the community. Temporary enclosures
rise upon the ploughed field while the crop is growing; their object,
however, is not to divide the land between neighbours but to protect the
crop against pasturing animals; the strips of the several members of the
township lie intermixed, and their cultivation is not left to the views
and interests of the owners, but settled by the community according to
a general plan. The meadows are also divided into strips, but these
change hands in a certain rotation determined by lot or otherwise. The
pasture ground remains in the possession of the whole community. The
notion of private property, therefore, can be applied in this system
only to the houses and closes immediately adjoining them.
Then the feudal epoch divides the country into manors, a form which
originated at the end of the Saxon period and spread everywhere in
Norman times. The soil of the manor consists of demesne lands and
tributary lands. These two classes of lands do not quite correspond to
the distinction between land cultivated by the lord himself and soil
held of him by dependants; there may be leaseholders on the demesne, but
there the lord is always free to change the mode of cultivation and
occupation, while he has no right to alter the arrangements on the
tributary portion. This last is divided between free socmen holding on
certain conditions, villains and cottagers. The villains occupy equal
holdings; their legal condition is a very low one, although they are
clearly distinguished from slaves, and belong more to the soil than to
the lord. The cottagers have homesteads and crofts, but no holdings in
the common fields; the whole group presents the material from which, in
process of time, the agricultural labourers have been developed.
The common system of husbandry manifests itself in many ways: the small
holders club together for ploughing; four virgates or yardlands have to
co-operate in order to start an eight-oxen plough. The services are
often laid upon the whole village and not on separate householders; on
the other hand the village, as a whole, enters into agreement with the
lord about leases or commutation of services for money.
Each holding is formed of strips which lie intermixed with the component
parts of other holdings in different fields, and this fact is intimately
connected with the principle of joint ownership. The whole system begins
to break up in the thirteenth century, much earlier than in France or
Germany. As soon as services get commuted for money rents, it becomes
impossible to retain the labouring people in serfdom. Hired labourers
and farmers take the place of villains, and the villain's holding is
turned into a copyhold and protected by law. Although the passage to
modern forms begins thus early, traces of the original communalism may
be found everywhere, even in the eighteenth century.
[Maine.]
Nasse's pamphlet is based on a careful study of authorities, and despite
its shortness must be treated as a work of scientific research. But if
all subsequent workers have to reckon with it in settling particular
questions, general conceptions have been more widely influenced by Sir
Henry Maine's lectures, which did not aim at research, and had in view
the broad aspects of the subject. Their peculiar method is well known to
be that of comparing facts from very different environments--from the
Teutonic, the Celtic, the Hindu world; Maine tries to sketch a general
process where other people only see particular connexions and special
reasons. The chapters which fall within the line of our inquiry are
based chiefly on a comparison between Western Europe and India. The
agrarian organisation of many parts of India presents at this very day,
in full work and in all stages of growth and decay, the village
community of which some traces are still scattered in the records of
Europe. There and here the process is in the main the same, the passage
from collective ownership to individualism is influenced by the same
great forces, notwithstanding all the differences of time and place. The
original form of agrarian arrangement is due to the settlement of a
group of free men, which surrenders to its individual members the use of
arable land, meadows, pasture and wood, but retains the ownership and
the power to control and modify the rights of using the common land.
There can be no doubt that the legal theory, which sees in the modern
rights of commoners mere encroachments upon the lord, carries feudal
notions back into too early a period.
The real question as conceived by Maine is this--By what means was the
free village community turned into the manor of the lord? The petty
struggles between townships must have led to the subjugation of some
groups by others; in each particular village the headman had the means
to use his authority in order to improve his material position; and when
a family contrived to retain an office in the hands of its members this
at once gave matters an aristocratical turn. In Western Europe external
causes had to account for a great deal in the gradual rise of
territorial lordship. When the barbarian invaders came into contact with
Roman civilisation and took possession of the provincial soil, they
found private ownership and great property in full development, and
naturally fell under the influence of these accomplished facts; their
village community was broken up and transformed gradually into the
manorial system[27].
Maine traces economic history from an originally free community; Nasse
takes the existence of such a community for granted. The statements of
one are too general, however, and sometimes too hypothetical, the other
has in view husbandry proper rather than the legal development of social
classes. Maurer's tenets, to which both go back, present a very coherent
system in which all parts hold well together; but each part taken
separately is not very well grounded on fact. The one-sided preference
given to one element does not allow other important elements to appear;
the wish to find in the authorities suitable arguments for a favourite
thesis leads to a confusion of materials derived from different epochs.
These defects naturally called for protest and rectification; but the
reaction against Maurer's teaching has gone so far and comes from such
different quarters, that one has to look for its explanation beyond the
range of historical research.
[Reactionary movement.]
Late years have witnessed everywhere in Europe a movement of thought
which would have been called reactionary some twenty years ago[28]. Some
people are becoming very sceptical as to principles which were held
sacred by preceding generations; at the same time elements likely to be
slighted formerly are coming to the front in great strength nowadays.
There have been liberals and conservatives at all times, but the
direction of the European mind, saving the reaction against the French
Revolution and Napoleon, has been steadily favourable to the liberal
tendency. For two centuries the greatest thinkers and the course of
general opinion have been striving for liberty in different ways, for
the emancipation of individuals, and the self-government of communities,
and the rights of masses. This liberal creed has been, on the whole, an
eminently idealist one, assuming the easy perfectibility of human
nature, the sound common sense of the many, the regulating influence of
consciousness on instinct, the immense value of high political
aspirations for the regeneration of mankind. In every single attempt at
realising its high-flying hopes the brutal side of human nature has made
itself felt very effectually, and has become all the more conspicuous
just by reason of the ironical contrast between aims and means. But the
movement as a whole was certainly an idealist one, not only in the
eighteenth but even in the nineteenth century, and the necessary
repressive tendency appeared in close alliance with officialism, with
unthinking tradition, and with the egotism of classes and individuals.
Many events have contributed of late years to raise a current of
independent thought which has gone far in criticising and stemming back
liberal doctrines, if not in suppressing them. The brilliant
achievements of historical monarchy in Germany, the ridiculous misery to
which France has been reduced by conceited and impotent politicians, the
excesses of terrorist nihilism in Russia, the growing sense of a coming
struggle on questions of radical reform--all these facts have worked
together to generate a feeling which is far from being propitious to
liberal doctrines. Socialism itself has been contributing to it directly
by laying an emphatic stress on the conditions of material existence,
and treating political life merely as subordinate to economic aims. In
England the repressive tendency has been felt less than on the
Continent, but even here some of the foremost men in the country are
beginning, in consequence of social well-known events, to ask
themselves: Whither are we drifting? The book which best illustrates the
new direction of thought is probably Taine's 'Origines de la France
Contemporaine.' It is highly characteristic, both in its literary
connexion with the profound and melancholy liberalism of Tocqueville,
and in its almost savage onslaught on revolutionary legend and doctrine.
In the field of historical research the fermentation of political
thought of which I have been speaking has been powerfully seconded by a
growing distrust among scholars for preconceived theories, and by the
wish to reconsider solutions which had been too easily taken for
granted. The combined action of these forces has been curiously
experienced in the particular subject of our study. The Germanist school
had held very high the principle of individual liberty, had tried to
connect it with the Teutonic element in history, had explained its
working in the society described by Tacitus, and had regretfully
followed its decay in later times. For the representatives of the New
School this 'original Teutonic freedom' has entirely lost its
significance, and they regard the process of social development as
starting with the domination of the few and the serfdom of the many. The
votaries of the free village community have been studying with interest
epochs and ethnographical variations unacquainted with the economic
individualism of modern Europe, they have been attentive in tracing out
even the secondary details of the agrarian associations which have
directed the husbandry of so many centuries, but the New School
subordinates communal practice to private property and connects it with
serfdom. We may already notice the new tendency in Inama-Sternegg's
Wirthschaftsgeschichte[29]: he enters the lists against Maurer, denies
that the Mark ever had anything to do with political work, reduces its
influence on husbandry, and enhances that of great property. The most
remarkable of French medievalists--Fustel de Coulanges--has been
fighting all along against the Teutonic village community, and for an
early development of private property in connexion with Roman influence.
English scholarship has to reckon with similar views in Seebohm's
well-known work.
[Seebohm.]
Let us recall to mind the chief points of his theory. The village
community of medieval England is founded on the equality of the holdings
in the open fields of the village. The normal holding of a peasant
family is not only equal in each separate village, but it is
substantially the same all over England. Variations there are, but in
most cases by far it consists of the virgate of thirty acres, which
makes the fourth part of the hide of a hundred and twenty acres, because
the peasant holder owns only the fourth part of the ploughteam of eight
oxen corresponding to the hide. The holders of virgates or yardlands are
not the only people in the village; their neighbours may have more or
less land, but there are not many classes as a rule, all the people in
the same class are equalised, and the virgate remains the chief
manifestation of the system. It is plain that such equality could be
maintained only on the principle that each plot was a unit which was
neither to be divided nor thrown together with other plots. Why did such
a system spread all over Europe? It could not develop out of a free
village community, as has been commonly supposed, because the Germanic
law regulating free land does not prevent its being divided; indeed,
where this law applies, holdings get broken up into irregular plots. If
the system does not form itself out of Germanic elements, it must come
from Roman influence; one has only the choice between the two as to
facts which prevail everywhere in Western Europe. Indeed, the Roman
villa presents all the chief features of the medieval manor. The lord's
demesne acted as a centre, round which _coloni_ clustered--cultivators
who did not divide their tenancies because they did not own them. The
Roman system was the more readily taken up by the Germans, as their own
husbandry, described by Tacitus, had kindred elements to show--the
condition of their slaves, for instance, was very like that of Roman
coloni. It must be added, that we may trace in Roman authorities not
only the organisation of the holdings, but such features as the
three-field partition of the arable and the intermixed position of the
strips belonging to a single holding.
The importance of these observations taken as a whole becomes especially
apparent, if we compare medieval England with Wales or Ireland, with
countries settled by the Celts on the principle of the tribal community:
no fixed holdings there; it is not the population that has to conform
itself to fixed divisions of land, but the divisions of land have to
change according to the movement of the population. Such usage was
prevalent in Germany itself for a time, and would have been prevalent
there as long as in Celtic countries, if the Germans had not come under
Roman influence. And so the continuous development of society in
England starts from the position of Roman provincial soil.
The Saxon invasion did not destroy what it found in the island. Roman
villas and their labourers passed from one lord to the other--that is
all. The ceorls of Saxon times are the direct descendants of Roman
slaves and coloni, some of them personally free, but all in agrarian
subjection. Indeed, social development is a movement from serfdom to
freedom, and the village community of its early stages is connected not
with freedom, but with serfdom.
Seebohm's results have a marked resemblance to some of the views held by
the eighteenth-century lawyers, and also to those held by Palgrave and
by Coote, but his theory is nevertheless original, both in the connexion
of the parts with the whole, and in its arguments: he knows how to place
in a new light evidence which has been known and discussed for a long
time, and for this reason his work will be suggestive reading even to
those who do not agree with the results. The chief strength of his work
lies in the chapters devoted to husbandry; but if one accepts his
conclusions, what is to be done with the social part of the question?
Both sides, the economic and the social, are indissolubly allied, and at
the same time the extreme consequences drawn from them give the lie
direct to everything that has hitherto been taken for granted and
accepted as proved as to this period. Can it really be true that the
great bulk of free men was originally in territorial subjection, or
rather that there never was such a thing as a great number of free men
of German blood, and that the German conquest introduced only a cluster
of privileged people which merged into the habits and rights of Roman
possessors? If this be not true and English history testifies on every
point to a deeper influence exercised by the German conquerors, does not
the collapse of the social conclusion call in question the economical
premisses? Does not a logical development of Seebohm's views lead to
conclusions that we cannot accept? These are all perplexing questions,
but one thing is certain; this last review of the subject has been
powerful enough to necessitate a reconsideration of all its chief
points.
[Results attained by conflict between successive theories.]
Happily, this does not mean that former work has been lost. I have not
been trying the patience of my readers by a repetition of well-known
views without some cogent reasons. The subject is far too wide and
important to admit of a brilliantly unexpected solution by one mind or
even one generation of workers. A superficial observer may be so much
struck by the variations and contradictions, that he will fail to
realise the intimate dependence of every new investigator on his
predecessors. 'The subjective side of history,' as the Germans would
say, has been noticed before now and the taunt has been administered
with great force: 'Was Ihr den Geist der Zeiten heisst, das ist im Grund
der Herren eigener Geist, in dem die Zeiten sich bespiegeln.' Those who
do not care to fall a prey to Faust's scepticism, will easily perceive
that individual peculiarities and political or national pretensions will
not account for the whole of the process. Their action is powerful
indeed: the wish to put one's own stamp on a theory and the reaction of
present life on the past are mighty incitements to work. But new schools
do not rise in order to pull down everything that has been raised by
former schools, new theories always absorb old notions both in treatment
of details and in the construction of the whole. We may try, as
conclusion of our review of historical literature, to notice the
permanent gains of consecutive generations in the forward movement of
our studies. The progress will strike us, not only if we compare the
state of learning at both ends of the development, but even if we take
up the links of the chain one by one.
The greatest scholars of the time before the French Revolution failed in
two important respects: they were not sufficiently aware of the
differences between epochs; they were too ready with explanations drawn
from conscious plans and arrangements. The shock of Revolution and
Reaction taught people to look deeper for the laws of the social and
political organism. The material for study was not exactly enlarged,
but instead of being thrown together without discrimination, it was
sifted and tried. Preliminary criticism came in as an improvement in
method and led at once to important results. Speaking broadly, the field
of conscious change was narrowed, the field of organic development and
unconscious tradition widened. On this basis Savigny's school
demonstrated the influence of Roman civilisation in the Middle Ages,
started the inquiry as to national characteristics, and shifted the
attention of historians from the play of events on the surface to the
great moral and intellectual currents which direct the stream.
Palgrave's book bears the mark of all these ideas, and it may be noticed
especially that his chief effort was to give a proper background to
English history by throwing light on the abiding institutions of the
law.
None of these achievements was lost by the next generation of workers.
But it had to start from a new basis, and had a good deal to add and to
correct. Modern life was busy with two problems after the collapse of
reaction had given way to new aspirations: Europe was trying to strike a
due balance between order and liberty in the constitutional system;
nationalities that had been rent by casual and artificial influences
were struggling for independence and unity. The Germanist School arose
to show the extent to which modern constitutional ideas were connected
with medieval facts, and the share that the German element has had in
the development of institutions and classes. As to material, Kemble
opened a new field by the publication of the Saxon charters, and the
gain was felt at once in the turn given towards the investigation of
private law, which took the place of Palgrave's vague leaning towards
legal history. The methods of careful and cautious inquiry as to
particular facts took shape in the hands of K. Maurer and Stubbs, and
the school really succeeded, it seems to me, in establishing the
characteristically Germanic general aspect of English history, a result
which does not exclude Roman influence, but has to be reckoned with in
all attempts to estimate definitely its bearing and strength.
The rise of the social question about the middle of our century had, as
its necessary consequence, to impress upon the mind of intelligent
people the vast importance of social conditions, of those primary
conditions of husbandry, distribution of wealth and distribution of
classes, which ever, as it were, loom up behind the pageant of political
institutions and parties. Nasse follows up the thread of investigation
from the study of private law towards the study of economic conditions.
G.F. v. Maurer and Maine enlarge it in scope, material, and means by
their comparative inquiry, taking into view, first, all varieties of the
Teutonic race, and then the development of other ethnographical
branches. The village community comes out of the inquiry as the
constitutive cell of society during an age of the world, quite as
characteristic of medieval structure, as the town community or 'civitas'
was of ancient polity.
The consciousness that political and scientific construction has been
rather hasty in its work, that it has often been based upon doctrines
instead of building on the firm foundation of facts--the widely spread
perception of these defects has been of late inciting statesmen and
thinkers to put to use some of those very elements which were formerly
ignored or rejected. The manorial School--if I may be allowed to use
this expression--has brought forward the influence of great landed
estates against the democratical conception of the village community.
The work spent upon this last phenomenon is by no means undone; on the
contrary, it was received in most of its parts. But new material was
found in the manorial documents of the later middle ages, the method of
investigation 'from the known to the unknown' was used both openly and
unconsciously, comparative inquiry was handled for more definite, even
if more limited purposes. Great results cannot be contested: to name
one--the organising force of aristocratic property has been acknowledged
and has come to its rights.
But the new impetus given to research has caused its originators to
overleap themselves, as it were. They have occupied so exclusively the
point of view whence the manor of the later middle ages is visible that
they have disregarded the evidence which comes from other quarters
instead of finding an explanation which will satisfy all the facts. The
investigation 'from the known to the unknown' has its definite danger,
against which one has to be constantly on one's guard: its obvious
danger is to destroy perspective and ignore development by carrying into
the 'unknown' of early times that which is known of later conditions.
Altogether the attempt to overthrow some of the established results of
investigation as to race and classes does not seem to be a happy one.
And so, although great work has been done in our field of study, it
cannot be said that it has been brought to a close--'bis an die Sterne
weit.' Many things remain to be done, and some problems are especially
pressing. The legal and the economical side of the inquiry must be
worked up to the same level; manorial documents must be examined
systematically, if not exhaustively, and their material made to fit with
the evidence established from other sources of information; the whole
field has to be gone over with an eye for proof and not for doctrine. A
review of the work already done, and of the names of scholars engaged in
it, is certainly an incitement to modesty for every new reaper in the
field, but it is also a source of hope. It shows that schools and
leading scholars displace one another more under the influence of
general currents of thought than of individual talent. The ferment
towards the formation of groups comes from the outside, from the modern
life which surrounds research, forms the scholar, suggests solutions.
Moreover, theoretical development has a continuity of its own; all the
strength of this manifold life cannot break or turn back its course, but
is reduced to drive it forward in ever new bends and curves. The present
time is especially propitious to our study: one feels, as it were, that
it is ripening to far-reaching conclusions. So much has been done
already for this field of enquiry in the different countries of Europe,
that the hope to see in our age a general treatment of the social
origins of Western Europe will not seem an extravagant one. And such a
treatment must form as it were the corner-stone of any attempt to trace
the law of development of human society. It is in this consciousness of
being borne by a mighty general current, that the single scholar may
gather hope that may buoy him against the insignificance of his forces
and the drudgery of his work.
FIRST ESSAY.
THE PEASANTRY OF THE FEUDAL AGE.
CHAPTER I.
THE LEGAL ASPECT OF VILLAINAGE. GENERAL CONCEPTIONS.
[Medieval serfdom.]
It has become a commonplace to oppose medieval serfdom to ancient
slavery, one implying dependence on the lord of the soil and attachment
to the glebe, the other being based on complete subjection to an owner.
There is no doubt that great landmarks in the course of social
development are set by the three modes hitherto employed of organising
human labour: using the working man (1) as a chattel at will, (2) as a
subordinate whose duties are fixed by custom, (3) as a free agent bound
by contract. These landmarks probably indicate molecular changes in the
structure of society scarcely less important than those political and
intellectual revolutions which are usually taken as the turning-points
of ancient, medieval, and modern history.
And still we must not forget, in drawing such definitions, that we reach
them only by looking at things from such a height that all lesser
inequalities and accidental features of the soil are no longer sensible
to the eyesight. In finding one's way over the land one must needs go
over these very inequalities and take into account these very features.
If, from a general survey of medieval servitude, we turn to the actual
condition of the English peasantry, say in the thirteenth century, the
first fact we have to meet will stand in very marked contrast to our
general proposition.
[Importance of legal treatment.]
The majority of the peasants are villains, and the legal conception of
villainage has its roots not in the connexion of the villain with the
soil, but in his personal dependence on the lord.
If this is a fact, it is a most important one. It would be reckless to
treat it as a product of mere legal pedantry[30]. The great work
achieved by the English lawyers of the twelfth and thirteenth centuries
was prompted by a spirit which had nothing to do with pedantry. They
were fashioning state and society, proudly conscious of high aims and
power, enlightened by the scholastic training of their day, but
sufficiently strong to use it for their own purposes; sound enough not
to indulge in mere abstractions, and firm enough not to surrender to
mere technicalities[31]. In the treatment of questions of status and
tenure by the lawyers of Henry II, Henry III, and Edward I, we must
recognise a mighty influence which was brought to bear on the actual
condition of things, and our records show us on every page that this
treatment was by no means a matter of mere theory. Indeed one of the
best means that we have for estimating the social process of those times
is afforded by the formation and the break up of legal notions in their
cross influences with surrounding political and economic facts.
[Definition and terminology of villainage at Common Law.]
As to the general aspect of villainage in the legal theory of English
feudalism there can be no doubt. The 'Dialogus de Scaccario' gives it in
a few words: the lords are owners not only of the chattels but of the
bodies of their _ascripticii_, they may transfer them wherever they
please, 'and sell or otherwise alienate them if they like[32].'
Glanville and Bracton, Fleta and Britton[33] follow in substance the
same doctrine, although they use different terms. They appropriate the
Roman view that there is no difference of quality between serfs and
serfs: all are in the same abject state. Legal theory keeps a very firm
grasp of the distinction between status and tenure, between a villain
and a free man holding in villainage, but it does not admit of any
distinction of status among serfs: _servus_, _villanus_, and _nativus_
are equivalent terms as to personal condition, although this last is
primarily meant to indicate something else besides condition, namely,
the fact that a person has come to it by birth[34]. The close connexion
between the terms is well illustrated by the early use of _nativa_,
nieve, 'as a feminine to _villanus_.'
[Treatment of villainage in legal practice.]
These notions are by no means abstractions bereft of practical import.
Quite in keeping with them, manorial lords could remove peasants from
their holdings at their will and pleasure. An appeal to the courts was
of no avail: the lord in reply had only to oppose his right over the
plaintiff's person, and to refuse to go into the subject-matter of the
case[35]. Nor could the villain have any help as to the amount and the
nature of his services[36]; the King's Courts will not examine any
complaint in this respect, and may sometimes go so far as to explain
that it is no business of theirs to interfere between the lord and his
man[37]. In fact any attempt on the part of the dependant to assert
civil rights as to his master will be met and defeated by the 'exceptio
villenagii[38].' The state refuses to regulate the position of this
class on the land, and therefore there can be no question about any
legal 'ascription' to the soil. Even as to his person, the villain was
liable to be punished and put into prison by the lord, if the punishment
inflicted did not amount to loss of life or injury to his body[39]. The
extant Plea Rolls and other judicial records are full of allusions to
all these rights of the lord and disabilities of the villain, and it
must be taken into account that only an infinitely small part of the
actual cases can have left any trace in such records, as it was almost
hopeless to bring them to the notice of the Royal Courts[40].
[Identification with Roman slavery.]
It is not strange that in view of such disabilities Bracton thought
himself entitled to assume equality of condition between the English
villain and the Roman slave, and to use the terms _servus_, _villanus_,
and _nativus_ indiscriminately. The characteristics of slavery are
copied by him from Azo's commentary on the Institutes, as material for a
description of the English bondmen, and he distinguishes them carefully
even from the Roman _adscripticii_ or _coloni_ of base condition. The
villains are protected in some measure against their lord in criminal
law; they cannot be slain or maimed at pleasure; but such protection is
also afforded to slaves in the later law of the Empire, and in fact it
is based in Bracton on the text of the Institutes given by Azo, which in
its turn is simply a summary of enactments made by Hadrian and Antonine.
The minor law books of the thirteenth century follow Bracton in this
identification of villainage with slavery. Although this identification
could not but exercise a decisive influence on the theory of the
subject, it must be borne in mind that it did not originate in a wanton
attempt to bring together in the books dissimilar facts from dissimilar
ages. On the contrary, it came into the books because practice had
paved the way for it. Bracton was enabled to state it because he did not
see much difference between the definitions of Azo and the principles of
Common Law, as they had been established by his masters Martin of
Pateshull and William Raleigh. He was wrong, as will be shown by-and-by,
but certainly he had facts to lean upon, and his theory cannot be
dismissed on the ground of his having simply copied it from a
foreigner's treatise.
[Villains in gross and villains regardant.]
Most modern writers on the subject have laid stress upon a difference
between _villains regardant_ and _villains in gross_, said to be found
in the law books[41]. It has been taken to denote two degrees of
servitude--the predial dependence of a _colonus_ and the personal
dependence of a true slave. The villain _regardant_ was (it is said) a
villain who laboured under disabilities in relation to his lord only,
the villain in gross possessed none of the qualities of a freeman. One
sub-division would illustrate the debasement of freemen who had lost
their own land, while the other would present the survival of ancient
slavery.
In opposition to these notions I cannot help thinking that Hallam was
quite right in saying: 'In the condition of these (villains regardant
and villains in gross), whatever has been said by some writers, I can
find no manner of difference; the distinction was merely technical, and
affected only the mode of pleading. The term _in gross_ is appropriated
in our legal language to property held absolutely and without reference
to any other. Thus it is applied to rights of advowson or of common,
when possessed simply, and not as incident to any particular lands. And
there can be no doubt that it was used in the same sense for the
possession of a villein.' (Middle Ages, iii. 173; cf. note XIV.)
Hallam's statement did not carry conviction with it however, and as the
question is of considerable importance in itself and its discussion will
incidentally help to bring out one of the chief points about villainage,
I may be allowed to go into it at some length.
[Littleton's view.]
Matters would be greatly simplified if the distinction could really be
traced through the authorities. In point of fact it turns out to be a
late one. We may start from Coke in tracing back its history. His
commentary upon Littleton certainly has a passage which shows that he
came across opinions implying a difference of status between villains
regardant and villains in gross. He speaks of the right of the villain
to pursue every kind of action against every person except his lord, and
adds: 'there is no diversity herein, whether he be a villain regardant
or in gross, although some have said to the contrary[42]' (Co. Lit. 123
b). Littleton himself treats of the terms in several sections, and it is
clear that he never takes them to indicate status or define variation of
condition. As has been pointed out by Hallam, he uses them only in
connexion with a diversity in title, and a consequent diversity in the
mode of pleading. If the lord has a deed or a recorded confession to
prove a man's bondage, he may implead him as his villain in gross; if
the lord has to rely upon prescription, he has to point out the manor to
which the party and his ancestors have been regardant, have belonged,
time out of mind[43]. As it is a question of title and not of condition,
Littleton currently uses the mere 'villain' without any qualification,
whereas such a qualification could not be dispensed with, if there had
been really two different classes of villains. Last but not least, any
thought of a diversity of condition is precluded by the fact, that
Littleton assumes the transfer from one sub-division to the other to
depend entirely on the free will of the lord (sections 175, 181, 182,
185). But still, although even Littleton does not countenance the
classification I am now analysing, it seems to me that some of his
remarks may have given origin to the prevalent misconception on the
subject.
[The 'villain regardant' of the Year Books.]
Let us take up the Year Books, which, even in their present state,
afford such an inestimable source of information for the history of
legal conceptions in the fourteenth and fifteenth centuries[44]. An
examination of the reports in the age of the Edwards will show at once
that the terms _regardant_ and _in gross_ are used, or rather come into
use, in the fourteenth century as definitions of the mode of pleading in
particular cases. They are suggested by difference in title, but they do
not coincide with it, and any attempt to make them coincide must
certainly lead to misapprehension. I mean this--the term 'villain
regardant' applied to a man does not imply that the person in question
has any status superior to that of the 'villain in gross,' and it does
not imply that the lord has acquired a title to him by some particular
mode of acquisition, e.g. by prescription as contrasted with grant or
confession; it simply implies that for the purpose of the matter then in
hand, for the purpose of the case that is then being argued, the lord is
asserting and hoping to prove a title to the villain by relying on a
title to a manor with which the villain is or has been connected--title
it must be remembered is one thing, proof of title is another. As the
contrast is based on pleading and not on title, one and the same person
may be taken and described in one case as a villain regardant to a
manor, and in another as a villain in gross. And now for the proof.
The expression 'regardant' never occurs in the pleadings at all, but
'regardant to a manor' is used often. From Edward III's time it is used
quite as a matter of course in the formula of the 'exceptio' or special
plea of villainage[45]. That is, if the defendant pleaded in bar of an
action that the plaintiff was his bondman he generally said, I am not
bound to answer A, because he is my villain and I am seised of him as of
my villain as regardant to my manor of C. Of course there are other
cases when the term is employed, but the plea in bar is by far the most
common one and may stand for a test. This manner of pleading is only
coming gradually into use in the fourteenth century, and we actually see
how it is taking shape and spreading. As a rule the Year Books of Edward
I's time have not got it. The defendant puts in his plea unqualified.
'He ought not to be answered because he is our villain' (Y.B. 21/22
Edward I, p. 166, ed. Horwood). There is a case in 1313 when a
preliminary skirmish between the counsel on either side took place as to
the sufficiency of the defendant's plea in bar, the plaintiff contending
that it was not precise enough. Here, if any where, we should expect
the term '_regardant_,' but it is not forthcoming[46]. What is more, and
what ought to have prevented any mistake, the official records of trials
on the Plea Rolls up to Edward II always use the plain assertion,
'villanus ... et tenet in villenagio[47].' The practice of naming the
manor to which a villain belonged begins however to come in during the
reign of Edward II, and the terminology is by no means settled at the
outset; expressions are often used as equivalent to 'regardant' which
could hardly have misled later antiquaries as to the meaning of the
qualification[48]. In a case of 1322, for instance, we have 'within the
manor' where we should expect to find 'regardant to the manor[49].' This
would be very nearly equivalent to the Latin formula adopted by the Plea
Rolls, which is simply _ut de manerio_[50]. Every now and then cases
occur which gradually settle the terminology, because the weight of
legal argumentation in them is made to turn on the fact that a
particular person was connected with a particular manor and not with
another. A case from 1317 is well in point. B.P. the defendant excepts
against the plaintiff T.A. on the ground of villainage (_qil est nostre
vileyn_, and nothing else). The plaintiff replies that he was
enfranchised by being suffered to plead in an assize of mort d'ancestor
against B.P.'s grandmother. By this the defendant's counsel is driven to
maintain that his client's right against T.A. descended not from his
grandmother but from his grandfather, who was seised of the manor of H.
to which T.A. belonged as a villain[51]. The connexion with the manor is
adduced to show from what quarter the right to the villain had
descended, and, of course, implies nothing as to any peculiarity of this
villain's status, or as to the kind of title, the mode of acquiring
rights, upon which the lord relies--it was ground common to both parties
that if the lord had any rights at all he acquired them by inheritance.
[Prior of the Hospitalers _v._ Thomas Barentyn and Ralph Crips.]
Another case seems even more interesting. It dates from 1355, that is
from a time when the usual terminology had already become fixed. It
arose under that celebrated Statute of Labourers which played such a
prominent part in the social history of the fourteenth century. One of
the difficulties in working the statute came from the fact that it had
to recognise two different sets of relations between the employer and
the workman. The statute dealt with the contract between master and
servant, but it did not do away with the dependence of the villain on
the lord, and in case of conflict it gave precedence to this latter
claim; a lord had the right to withdraw his villain from a stranger's
service. Such cross influences could not but occasion a great deal of
confusion, and our case gives a good instance of it. Thomas Barentyn has
reclaimed Ralph Crips from the service of the Prior of the Hospitalers,
and the employer sues in consequence both his former servant and
Barentyn. This last answers, that the servant in question is his villain
regardant to the manor of C. The plaintiff's counsel maintains that he
could not have been regardant to the manor, as he was going about at
large at his free will and as a free man; for this reason A. the former
owner of the manor was never seised of him, and not being seised could
not transfer the seisin to the present owner, although he transferred
the manor. For the defendant it is pleaded, that going about freely is
no enfranchisement, that by the gift of the manor every right connected
with the manor was also conferred and that consequently the new lord
could at any moment lay hands on his man, as the former lord could have
done in his time. Ultimately the plaintiff offers to join issue on the
question, whether the servant had been a villain regardant to the manor
of C. or not. The defendant asserts, rather late in the day, that even
if the person in question was not a villain regardant to the manor of C.
the mere fact of his being a villain in gross would entitle his lord to
call him away. This attempt to start on a new line is not allowed by the
Court because the claim had originally been traversed on the ground of
the connexion with the manor[52].
The peculiarity of the case is that a third person has an interest to
prove that the man claimed as villain had been as a free man. Usually
there were but two parties in the contest about status; the lord pulling
one way and the person claimed pulling the other way, but, through the
influence of the Statute of Labourers, in our case lord and labourer
were at one against a third party, the labourer's employer. The
acknowledgment of villainage by the servant did not settle the question,
because, though binding for the future, it was not sufficient to show
that villainage had existed in the past, that is at the time when the
contract of hire and service was broken through the interference of the
lord. Everything depended on the settlement of one question--was the
lord seised at the time, or not? Both parties agree that the lord was
not actually seised of the person, both agree that he was seised of the
manor, and both suppose that if the person had as a matter of fact been
attached to the manor it would have amounted to a seisin of the person.
And so the contention is shifted to this point: can a man be claimed
through the medium of a manor, if he has not been actually living,
working and serving in it? The court assumes the possibility, and so the
parties appeal to the country to decide whether in point of fact Ralph
Crips the shepherd had been in legal if not in actual connexion with the
manor, i.e. could be traced to it personally or through his relatives.
[Results as to 'villain regardant' and 'villain in gross.']
The case is interesting in many ways. It shows that the same man could
be according to the point of view considered both as a villain in regard
to a manor, and as a villain in gross. The relative character of the
classification is thus illustrated as well as its importance for
practical purposes. The transmission of a manor is taken to include the
persons engaged in the cultivation of its soil, and even those whose
ancestors have been engaged in such cultivation, and who have no special
plea for severing the connexion.
As to the outcome of the whole inquiry, we may, it seems to me, safely
establish the following points: 1. The terms 'regardant' and 'in gross'
have nothing to do with a legal distinction of status. 2. They come up
in connexion with the modes of proof and pleading during the fourteenth
century. 3. They may apply to the same person from different points of
view. 4. 'Villain in gross' means a villain without further
qualification; 'villain regardant to a manor' means villain by reference
to a manor. 5. The connexion with a manor, though only a matter of fact
and not binding the lord in any way, might yet be legally serviceable to
him, as a means of establishing and proving his rights over the person
he claimed.
[The astrier.]
I need hardly mention, after what has been said, that there is no such
thing as this distinction in the thirteenth century law books. I must
not omit, however, to refer to one expression which may be taken to
stand in the place of the later 'villain regardant to a manor.' Britton
(ii. 55) gives the formula of the special plea of villainage to the
assize of mort d'ancestor in the following words: 'Ou il poie dire qe il
est soen vileyn et soen astrier et demourrant en son villenage.' There
can be no doubt that residence on the lord's land is meant, and the term
_astrier_ leads even further, it implies residence at a particular
hearth or in a particular house. Fleta gives the assize of novel
disseisin to those who have been a long time away from their villain
hearth[53] ('extra astrum suum villanum,' p. 217). If the term 'astrier'
were restricted to villains it would have proved a great deal more than
the 'villain regardant' usually relied upon. But it is of very wide
application. Britton uses it of free men entitled to rights of common by
reason of tenements they hold in a township (i. 392). Bracton speaks of
the case of a nephew coming into an inheritance in preference to the
uncle because he had been living at the same hearth or in the same hall
(in _atrio_ or _astro_) with the former owner[54], and in such or a
similar sense the word appears to have been usually employed by
lawyers[55]. On the other hand, if we look in Bracton's treatise for
parallel passages to those quoted from the Fleta and Britton about the
villain astrier, we find only a reference to the fact that the person in
question was a serf and holding in villainage and under the sway of a
lord[56], and so there is nothing to denote special condition in the
_astrier_. When the term occurs in connexion with villainage it serves
to show that a person was not only a bondman born, but actually living
in the power of his lord, and not in a state of liberty. The allusion to
the hearth cannot possibly mean that the man sits in his own homestead,
because only a few of the villains could have been holders of separate
homesteads, and so it must mean that he was sitting in a homestead
belonging to his lord, which is quite in keeping with the application of
the term in the case of inheritance.
[The territorial hold of villainage.]
The facts we have been examining certainly suppose that in the villains
we have chiefly to do with peasants tilling the earth and dependent on
manorial organisation. They disclose the working of one element which is
not to be simply deduced from the idea of personal dependence.
It may be called subjection to territorial power. The possession of a
manor carries the possession of cultivators with it. It is always
important to decide whether a bondman is in the seisin of his lord or
not, and the chief means to show it is to trace his connexion with the
territorial lordship. The interposition of the manor in the relation
between master and man is, of course, a striking feature and it gives a
very characteristic turn to medieval servitude. But if it is not
consistent with the general theory laid down in the thirteenth century
law books, it does not lead to anything like the Roman _colonatus_. The
serf is not placed on a particular plot of land to do definite services
under the protection of the State. He may be shifted from one plot
within the jurisdiction of his lord to another, from one area of
jurisdiction to another, from rural labour to industrial work or house
work, from one set of customs and services to another. He is not
protected by his predial connexion against his lord, and in fact such
predial connexion is utilised to hold and bind him to his lord. We may
say, that the unfree peasant of English feudalism was legally a personal
dependant, but that his personal dependence was enforced through
territorial lordship.
CHAPTER II.
RIGHTS AND DISABILITIES OF THE VILLAIN.
Legal theory as we have seen endeavoured to bring the general conception
of villainage under the principles of the Roman law of slavery, and
important features in the practice of the common law went far to support
it in so doing. On the other hand, even the general legal theory
discloses the presence of an element quite foreign to the Roman
conception. If we proceed from principles to their application in
detail, we at once find, that in most cases the broad rules laid down on
the subject do not fit all the particular aspects of villainage. These
require quite different assumptions for their explanation, and the whole
doctrine turns out to be very complex, and to have been put together out
of elements which do not work well together.
[Villainage by birth.]
We meet discrepancies and confusion at the very threshold in the
treatment of the modes in which the villain status has its origin. The
most common way of becoming a villain was to be born to this estate, and
it seems that we ought to find very definite rules as to this case. In
truth, the doctrine was changing. Glanville (v. 6) tried in a way to
conform to the Roman rule of the child following the condition of the
mother, but it could not be made to work in England, and ever since
Bracton, both common law and jurisprudence reject it. At the close of
the Middle Ages it was held that if born in wedlock the child took after
his father[57], and that a bastard was to be accepted as _filius
nullius_ and presumed free[58]. Bracton is more intricate; the bastard
follows the mother, the legitimate child follows the father; and there
is one exception, in this way, that the legitimate child of a free man
and a nief born in villainage takes after the mother[59]. It is not
difficult to see why the Roman rule did not fit; it was too plain for a
state of things which had to be considered from three different
sides[60]. The Roman lawyer merely looked to the question of status and
decided it on the ground of material demonstrability of origin[61], if
such an expression may be used. The Medieval lawyer had the Christian
sanctification of marriage to reckon with, and so the one old rule had
to be broken up into two rules--one applicable to legitimate children,
the other to bastards. In case of _bastardy_ the tendency was decidedly
in favour of retaining the Roman rule, equally suiting animals and
slaves, and the later theory embodied in Littleton belongs already to
the development of modern ideas in favour of liberty[62]. In case of
_legitimacy_ the recognition of marriage led to the recognition of the
family and indirectly to the closer connexion with the father as the
head of the family. In addition to this a third element comes in, which
may be called properly feudal. The action of the father-rule is
modified by the influence of territorial subjection. The marriage of a
free man with a nief may be considered from a special point of view, if,
as the feudal phraseology goes, he enters to her into her
villainage[63]. By this fact the free man puts his child under the sway
of the lord, to whose villainage the mother belongs. It is not the
character of the tenement itself which is important in this case, but
the fact of subjection to a territorial lord, whose interest it is to
retain a dependant's progeny in a state of dependency. The whole system
is historically important, because it illustrates the working of one of
the chief ingredients of villainage, an ingredient entirely absent from
ancient slavery; whereas medieval villainage depends primarily on
subjection to the territorial power of the lord. Once more we are shown
the practical importance of the manorial system in fashioning the state
of the peasantry. Generally a villain must be claimed with reference to
a manor, in connexion with an unfree hearth; he is born in a nest[64],
which makes him a bondman. The strict legal notion has to be modified to
meet the emergency, and villainage, instead of indicating complete
personal subjection, comes to mean subjection to a territorial lord.
This same territorial element not only influences the status of the
issue of a marriage, it also affects the status of the parties to a
marriage, when those parties are of unequal condition. Most notable is
the case of the free wife of a villain husband lapsing into servitude,
when she enters the villain tenement of her consort; her servitude
endures as long as her husband is in the lord's power, as long as he is
alive and not enfranchised. The judicial practice of the thirteenth
century gives a great number of cases where the tribunals refuse to
vindicate the rights of women entangled in villainage by a
mesalliance[65]. Such subjection is not absolute, however. The courts
make a distinction between acquiring possession and retaining it. The
same woman who will be refused a portion of her father's inheritance
because she has married a serf, has the assize of novel disseisin
against any person trying to oust her from a tenement of which she had
been seised before her marriage[66]. The conditional disabilities of the
free woman are not directly determined by the holding which she has
entered, but by her marital subordination to an unfree husband ('sub
virga,' Bract. Note-book, pl. 1685). For this reason the position of a
free husband towards the villainage of his wife a nief is not exactly
parallel. He is only subject to the general rules as to free men holding
in villainage[67]. In any case, however, the instances which we have
been discussing afford good illustrations of the fact, that villainage
by no means flows from the simple source of personal subjection; it is
largely influenced by the Christian organisation of the family and by
the feudal mixture of rights of property and sovereignty embodied in the
manorial system.
[Prescription.]
There are two other ways of becoming a villain besides being born to the
condition; the acknowledgment of unfree status in a court of record, and
prescription. We need not speak of the first, as it does not present any
particulars of interest from a historical point of view. As to
prescription, there is a very characteristic vacillation in our sources.
In pleadings of Edward III's time its possibility is admitted, and it is
pointed out, that it is a good plea if the person claimed by
prescription shows that his father and grandfather[68] were strangers.
There is a curious explanatory gloss, in a Cambridge MS. of Bracton,
which seems to go back at least to the beginning of the fourteenth
century, and it maintains that free stock doing villain service lapses
into villainage in the fifth generation only[69]. On the other hand,
Britton flatly denies the possibility of such a thing; according to him
no length of time can render free men villains or make villains free
men. Moreover he gives a supposed case (possibly based on an actual
trial), in which a person claimed as a villain is made to go back to
the sixth generation to establish his freedom.[70] It does not seem
likely that people could often vindicate their freedom by such elaborate
argument, but the legal assumption expounded in Britton deserves full
attention. It is only a consequence of the general view, that neither
the holding nor the services ought to have any influence on the status
of a man, and in so far it seems legally correct. But it is easy to see
how difficult it must have been to keep up these nice distinctions in
practice, how difficult for those who for generations had been placed in
the same material position with serfs to maintain personal freedom.[71]
For both views, though absolutely opposed to each other, are in a sense
equally true: the one giving the logical development of a fundamental
rule of the law, the other testifying to the facts. And so we have one
more general observation to make as to the legal aspect of villainage.
Even in the definition of its fundamental principles we see notable
discrepancies and vacillations, which are the result of the conflict
between logical requirements and fluctuating facts.
[Criminal law in its relation to villainage.]
The original unity of purpose and firmness of distinction are even more
broken up when we look at the criminal and the police law where they
touch villainage. In the criminal law of the feudal epoch there is
hardly any distinction between free men and villains. In point of
amercements there is the well-known difference as to the 'contenement'
of a free landholder, a merchant and a villain, but this difference is
prompted not by privilege but by the diversity of occupations. The
Dialogus de Scaccario shows that villains being reputed English are in a
lower position than free men as regards the presumption of Englishry and
the payment of the murder-fine,[72] but this feature seems to have
become obliterated in the thirteenth century. In some cases corporal
punishment may have differed according to the rank of the culprit, and
the formalities of ordeal were certainly different[73]. The main fact
remains, that both villains and free men were alike able to prosecute
anybody by way of 'appeal'[74] for injury to their life, honour, and
even property[75], and equally liable to be punished and prosecuted for
offences of any kind. Their equal right was completely recognized by the
criminal law, and as a natural sequence of this, the pleas of the crown
generally omit to take any notice of the status of parties connected
with them. One may read through Mr. Maitland's collection of Pleas of
the Crown edited for the Selden Society, or through his book of
Gloucestershire pleas, without coming across any but exceptional and
quite accidental mentions of villainage. In fact were we to form our
view of the condition of England exclusively on the material afforded by
such documents, we might well believe that the whole class was all but
an extinct one. One glance at Assize Rolls or at Cartularies would teach
us better. Still the silence of the Corona Rolls is most eloquent. It
shows convincingly that the distinction hardly influenced criminal law
at all.
[Police in relation to villainage.]
It is curious that, as regards police, villains are grouped under an
institution which, even by its name, according to the then accepted
etymology, was essentially a free institution. The system of frank
pledge (_plegium liberale_), which should have included every one
'worthy of his _were_ and his _wite_,' is, as a matter of fact, a system
which all through the feudal period is chiefly composed of villains[76].
Free men possessed of land are not obliged to join the tithing because
they are amenable to law which has a direct hold on their land[77], and
so the great mass of free men appear to be outside these arrangements,
for the police representation of the free, or, putting it the other way,
feudal serfs actually seem to represent the bulk of free society. The
thirteenth-century arrangements do not afford a clue to such paradoxes,
and one has to look for explanation to the _history_ of the classes.
The frankpledge system is a most conspicuous link between both sections
of society in this way also, that it directly connects the subjugated
population with the hundred court, which is the starting-point of free
judicial organisation. Twice a year the whole of this population, with
very few exceptions, has to meet in the hundred in order to verify the
working of the tithings. Besides this, the class of villains must appear
by representatives in the ordinary tribunals of the hundred and the
shire: the reeve and the four men, mostly unfree men[78], with their
important duties in the administration of justice, serve as a
counterpoise to the exclusive employment of 'liberi et legales homines'
on juries.
[Civil disability of a villain as to his lord.]
And now I come to the most intricate and important part of the
subject--to the civil rights and disabilities of the villain. After what
has been said of the villain in other respects, one may be prepared to
find that his disabilities were by no means so complete as the strict
operation of general rules would have required. The villain was able in
many cases to do valid civil acts, to acquire property and to defend it
in his own name. It is true that, both in theory and in practice, it was
held that whatever was acquired by the bondman was acquired by the lord.
The bondman could not buy anything but with his lord's money, as he had
no money or chattels of his own[79]. But the working of these rules was
limited by the medieval doctrine of possession. Land or goods acquired
by the serf do not _eo ipso_ lapse into his lord's possession, but only
if the latter has taken them into his hand[80]. If the lord has not done
so for any reason, for want of time, or carelessness, or because he did
not choose to do so, the bondman is as good as the owner in respect of
third persons. He can give away[81] or otherwise alienate land or
chattels, he has the assize of novel disseisin to defend the land, and
leaves the assize of mort d'ancestor to his heirs. In this case it would
be no good plea to object that the plaintiff is a villain. In fact this
objection can be raised by a third person only with the addition that,
as villain, the plaintiff does not hold in his own name, but in the name
of his lord[82]. A third person cannot except against a plaintiff merely
on the ground of his personal status. As to third persons, a villain is
said to be free and capable to sue all actions[83]. This of course does
not mean that he has any action for recovering or defending his
possession of the tenements which he holds _in villainage_, but this
disability is no consequence of his servile blood, for he shares it with
the free man who holds in villainage; it is a consequence of the
doctrine that the possession of the tenant in villainage is in law the
possession of him who has the freehold. It may be convenient for a
villain as defendant to shelter himself behind the authority of his
lord[84], and it was difficult to prevent him from doing so, although
some attempts were made by the courts even in this case to distinguish
whether a person had been in possession as a dependant or not. But there
was absolutely nothing to prevent a villain from acting in every respect
like a free man if he was so minded and was not interrupted by his lord.
There was no need of any accessory action to make his acts complete and
legal[85]. Again we come to an anomaly: the slave is free against
everybody but his lord.
[Convention with the lord.]
Even against his lord the bondman had some standing ground for a civil
action. It has rightly been maintained, that he could implead his master
in consequence of an agreement with him. The assertion is not quite easy
to prove however, and has been put forward too sweepingly[86]. At first
sight it seems even that the old law books, i.e. those of Bracton and
his followers, teach the opposite doctrine. They deal almost exclusively
with the case of a feoffment made by the lord to a villain and his
heirs, and give the feoffee an action only on the ground of implied
manumission. The feoffor enfranchises his serf indirectly, even if he
does not say so in as many words, because he has spoken of the feoffee's
heirs, and the villain has no other heirs besides the lord[87]. The
action eventually proceeds in this case, because it is brought not by a
serf but by a freed man. One difficult passage in Bracton points another
way; it is printed in a foot-note[88]. There can be no doubt, that in
it Bracton is speaking of a covenant made by the lord not with a free
man or a freed man, but with a villain. This comes out strongly when it
is said, that the lord, and not the villain, has the assize against
intruders, and when the author puts the main question--is the feoffor
bound to hold the covenant or not? The whole drift of the quotation can
be understood only on the fundamental assumption that we have lord and
villain before us. But there are four words which militate against this
obvious explanation; the words '_sibi et heredibus suis_.' We know what
their meaning is--they imply enfranchisement and a freehold estate of
inheritance. They involve a hopeless contradiction to the doctrine
previously stated, a doctrine which might be further supported by
references to Britton, Fleta and Bracton himself[89]. In short, if we
accept them, we can hardly get out of confusion. Were our text of
Bracton much more definitely and satisfactorily settled than it is[90],
one would still feel tempted to strike them out; as it is we have a text
studded with interpolations and errors, and it seems quite certain that
'sibi et heredibus suis' has got into it simply because the compositor
of Tottell's edition repeated it from the conclusion of the sentence
immediately preceding, and so mixed up two cases, which were to be
distinguished by this very qualification. The four words are missing in
all the MSS. of the British Museum, the Bodleian and the Cambridge
University Library[91]. I have no doubt that further verification will
only confirm my opinion. On my assumption Bracton clearly distinguishes
between two possibilities. In one case the deed simply binds the lord as
to a particular person, in the other it binds him in perpetuity; and in
this latter case, as there ought not to be any heirs of a bondman but
the lord, bondage is annihilated by the deed. It is not annihilated when
one person is granted a certain privilege as to a particular piece of
land, and in every other respect the grantee and all his descendants
remain unfree[92]:--he has no freehold, but he has a special covenant to
fall back upon. This seems to lie at the root of what Bracton calls
privileged villainage by covenant as distinguished from villain
socage[93].
[Legal practice as to conventions.]
The reader may well ask whether there are any traces of such an
institution in practice, as it is not likely that Bracton would have
indulged in mere theoretical disquisitions on such an important point.
Now it would be difficult to find very many instances in point; the line
between covenant and enfranchisement was so easily passed, and an
incautious step would have such unpleasant consequences for landlords,
that they kept as clear as possible of any deeds which might indirectly
destroy their claims as to the persons of their villains[94]. On the
other hand, even privileged serfs would have a great difficulty in
vindicating their rights on the basis of covenant if they remained at
the same time under the sway of the lord in general. The difficulties on
both sides explain why Fleta and Britton endorse only the chief point of
Bracton's doctrine, namely, the implied manumission, and do not put the
alternative as to a covenant when heirs are not mentioned. Still I have
come across some traces in legal practice[95] of contracts in the shape
of the one discussed. A very interesting case occurred in Norfolk in
1227, before Martin Pateshull himself. A certain Roger of Sufford gave a
piece of land to one of his villains, William Tailor, to hold freely by
free services, and when Roger died, his son and heir William of Sufford
confirmed the lease. When it pleased the lord afterwards to eject the
tenant, this latter actually brought an assize of novel disseisin and
recovered possession. Bracton's marginal note to the case runs thus:
'Note, that the son of a villain recovered by an assize of novel
disseisin a piece of land which his father had held in villainage,
because the lord of the villain by his charter gave it to the son [i.e.
to the plaintiff], even without manumission[96].' The court went in this
case even further than Bracton's treatise would have warranted: the
villain was considered as having the freehold, and an assize of novel
disseisin was granted; but although such a treatment of the case was
perhaps not altogether sound, the chief point on which the contention
rested is brought out clearly enough. There was a covenant, and in
consequence an action, although there was no manumission; and it is to
this point that the marginal note draws special attention[97].
[Waynage.]
Again, we find in the beginning of Bracton's treatise a remark[98] which
is quite out of keeping with the doctrine that the villain had no
property to vindicate against his lord; it is contradicted by other
passages in the same book, and deserves to be considered the more
carefully on that account. Our author is enumerating the cases in which
the serf has an action against his lord. He follows Azo closely, and
mentions injury to life or to limb as one cause. Azo goes on to say that
a plaint may be originated by _intollerabilis injuria_, in the sense of
corporeal injury. Bracton takes the expression in a very different
sense; he thinks that economic ruin is meant, and adds, 'Should the lord
go so far as to take away the villain's very _waynage_, i.e. plough and
plough-team, the villain has an action.' It is true that Bracton's
text, as printed in existing editions, contains a qualification of this
remark; it is said that only serfs on ancient demesne land are possessed
of such a right. But the qualification is meaningless; the right of
ancient demesne tenants was quite different, as we shall see by-and-by.
The qualifying clause turns out to be inserted only in later MSS. of the
treatise, is wanting in the better MSS., and altogether presents all the
characters of a bad gloss[99]. When the gloss is removed, we come in
sight of the fact that Bracton in the beginning of his treatise admits a
distinct case of civil action on the part of a villain against his lord.
The remark is in contradiction with the Roman as well as with the
established English doctrine, it is not supported by legal practice in
the thirteenth century, it is omitted by Bracton when he comes to speak
again of the 'persona standi in judicio contra dominum[100].' But there
it is, and it cannot be explained otherwise than as a survival of a time
when some part of the peasantry at least had not been surrendered to the
lord's discretion, but was possessed of civil rights and of the power to
vindicate them. The notion that the peasant ought to be specially
protected in the possession of instruments of agricultural labour comes
out, singularly enough, in the passage commented upon, but it is not a
singular notion in itself. It occurs, as every one knows, in the clause
of the Great Charter, which says that the villain who falls into the
king's mercy is to be amerced 'saving his waynage.' We come across it
often enough in Plea Rolls in cases against guardians accused of having
wasted their ward's property. One of the special points in such cases
often is, that a guardian or his steward has been ruining the villains
in the ward's manors by destroying their waynage[101]. Of course, the
protection of the peasant's prosperity, guaranteed by the courts in
such trials, is wholly due to a consideration of the interests of the
ward; and the care taken of villains is exactly parallel to the
attention bestowed upon oaks and elms. Still, the notion of waynage is
in itself a peculiar and an important one, and whatever its ultimate
origin may be, it points to a civil condition which does not quite fall
within the lines of feudal law.
[Villains not to be devised.]
Another anomaly is supplied by Britton. After putting the case as
strongly as possible against serfs, after treating them as mere chattels
to be given and sold, he adds, 'But as bondmen are annexed to the
freehold of the lord, they are not devisable by testament, and therefore
Holy Church can take no cognisance of them in Court Christian, although
devised in testament.' (I. 197.) The exclusion of villains is not
peculiar to them; they share it with the greater part of landed
possessions. 'As all the courts of civil jurisdiction had been
prohibited from holding jurisdiction as to testamentary matters, and the
Ecclesiastical Courts were not permitted to exercise jurisdiction as to
any question relating to freehold, there was no court which could
properly take cognisance of a testamentary gift of land as such[102].'
The point to be noted is, that villains are held to be annexed to the
freehold, although in theory they ought to be treated as chattels. The
contradiction gives us another instance of the peculiar modification of
personal servitude by the territorial element. The serf is not a
colonus, he is not bound up with any particular homestead or plot of
land, but he is considered primarily as a cultivator under manorial
organisation, and for this reason there is a limitation on the lord's
power of alienating him. Let it be understood, however, that the
limitation in this case does not come before us as a remnant of
independent rights of the peasant. It is imposed by those interests of
the feudal suzerain and of the kin which precluded the possibility of
alienating land by devise[103].
[Villain tenure and villain service.]
An inquiry into the condition of villains would be altogether
incomplete, if it did not touch on the questions of villain tenure and
villain services. Both are intimately connected with personal status, as
may be seen from the very names, and both have to be very carefully
distinguished from it. I have had to speak of prescription as a source
of villainage. Opinions were very uncertain in this respect, and yet,
from the mere legal point of view, there ought not to have been any
difficulty about the matter. Bracton takes his stand firmly on the
fundamental difference between status and tenure in order to distinguish
clearly between serfs and free men in a servile position[104]. The
villain is a man belonging to his lord personally; a villain holding
(_villenagium_) is land held at the will of the lord, without any
certainty as to title or term of enjoyment, as to kind or amount of
services[105]. Serfs are mostly, though not necessarily, found on
villain land; it does not follow that all those seated on villain land
are serfs. Free men are constantly seen taking up a _villenagium_; they
do not lose by it in personal condition; they have no protection against
the lord, if he choose to alter their services or oust them from the
holding, but, on the other hand, they are free to go when they please.
There is still less reason to treat as serfs such free peasants as are
subjected to base services, i.e. to the same kind of services and
payments as the villains, but on certain conditions, not more and not
less. Whatever the customs may be, if they are certain, not only the
person holding by them but the plot he is using are free, and the
tenure may be defended at law[106].
Such are the fundamental positions in Bracton's treatise, and there can
be no doubt that they are borne out in a general way by legal practice.
But if from the general we turn to the particular, if we analyse the
thirteenth-century decisions which are at the bottom of Bracton's
teaching, we shall find in many cases notions cropping up, which do not
at all coincide with the received views on the subject. In fact we come
across many apparent contradictions which can be attributed only to a
state of fermentation and transition in the law of the thirteenth
century.
[Martin of Bestenover's case.]
Martin of Bestenover's case is used by Bracton in his treatise as
illustrating the view that tenure has no influence on status[107]. It
was a long litigation, or rather a series of litigations. Already in the
first year of King John's reign we hear of a final concord between John
of Montacute and Martin of Bestenover as to a hundred acres held by the
latter[108]. The tenant is ejected however, and brings an assize of mort
d'ancestor against Beatrice of Montacute, who, as holding in dower,
vouches her son John to warranty. The latter excepts against Martin as a
villain. A jury by consent of the parties is called in, and we have
their verdict reported three times in different records[109]. They say
that Martin's father Ailfric held of John Montacute's father a hundred
acres of land and fifty sheep besides, for which he had to pay 20_s._ a
year, to be tallaged reasonably, when the lord tallaged his subjects,
and that he was not allowed to give his daughter away in marriage before
making a fine to the lord according to agreement. We do not know the
decision of the judges in John's time, but both from the tenor of the
verdict and from what followed, we may conclude that Martin succeeded in
vindicating his right to the land. Proceedings break out again at the
beginning of Henry III's reign.
In 1219 John of Montacute is again maintaining that Martin is his
villain, in answer as it seems to an action _de libertate probanda_
which Martin has brought against him. The court goes back to the verdict
of the jury in John's time, and finds that by this verdict the land is
proved to be of base tenure, and the person to be free. The whole is
repeated again[110] on a roll of 1220; whether we have two decisions,
one of 1219 and the other of 1220, or merely two records of the same
decision, is not very clear, nor is it very important. But there are
several interesting points about this case. The decision in 1220 is
undoubtedly very strong on the distinction between status and tenure:
'nullum erat placitum in curia domini Regis de villenagio corporis
ipsius Martini nisi tantum de villenagio et consuetudinibus terre,' etc.
As to tenure, the court delivers an opinion which is entitled to special
consideration, and has been specially noticed by Bracton both in his
Note-book and in his treatise. 'If Martin,' say the judges on the roll
of 1219, 'wishes to hold the land, let him perform the services which
his father has been performing; if not, the lord may take the land into
his hands[111].' The same thing is repeated almost literally on the roll
of 1220. Bracton draws two inferences from these decisions. One is
suggested by the beginning of the sentence; 'If Martin wishes to hold
the land.' Both in the Note-book and in the treatise Bracton deduces
from it, that holding and remaining on the land depended on the wish of
Martin, who as a free man was entitled to go away when he pleased[112].
The judgment does not exactly say this, but as to the right of a free
person to leave the land there can be no doubt.
[Tenant right of free man holding in villainage.]
The second conclusion is, that if a free man hold in villainage by
villain services he cannot be ejected by the lord against his will,
provided he is performing the services due from the holding. What
Bracton says here is distinctly implied by the decisions of 1219 and
1220, which subject the lord's power of dealing with the land to a
condition--non-performance of services[113]. There can be no question as
to the importance of such a view; it contains, as it were, the germ of
copyhold tenure[114]. It places villainage substantially on the same
footing as freehold, which may also be forfeited by discontinuance of
the services, although the procedure for establishing a forfeiture in
that case would be a far more elaborate one. And it must be understood
that Bracton's deduction by no means rests on the single case before us.
He appeals also to a decision of William Raleigh, who granted an assize
of mort d'ancestor to a free man holding in villainage[115].
Unfortunately the original record of this case has been lost. The
decision in a case of 1225 goes even further. It is an assize of novel
disseisin brought by a certain William the son of Henry against his lord
Bartholomew the son of Eustace. The defendant excepts against the
plaintiff as his villain; the court finds, on the strength of a verdict,
that he is a villain, and still they decide that William may hold the
land in dispute, if he consents to perform the services; if not, he
forfeits his land[116]. Undoubtedly the decision before us is quite
isolated, and it goes against the rules of procedure in such cases. Once
the exception proved, nothing ought to have been said as to the
conditions of the tenure. Still the mistake is characteristic of a state
of things which had not quite been brought under the well-known hard and
fast rule. And the best way to explain it is to suppose that the judges
had in their mind the more familiar case of free men holding in
villainage, and gave decision in accordance with Martin of Bestenover
_v._ Montacute, and the case decided by Raleigh[117]. All these
instances go clean against the usually accepted doctrine, that holding
in villainage is the same as holding at the will of the lord: the
celebrated addition 'according to the custom of the manor' would quite
fit them. They bring home forcibly one main consideration, that although
in the thirteenth century the feudal doctrine of non-interference of the
state between lord and servile tenantry was possessed of the field, its
victory was by no means complete. Everywhere we come across remnants of
a state of things in which one portion at least of the servile class had
civil rights as well as duties in regard to the lord.
[The test of services.]
Matters were even more unsettled as to customs and services in their
relation to status and tenure. What services, what customs are
incompatible with free status, with free tenure? Is the test to be the
kind of services or merely their certainty? Bracton remarks that the
payment of merchet, i.e. of a fine for giving away one's daughter to be
married, is not in keeping with personal freedom. But he immediately
puts in a kind of retractation[118], and indeed in the case of Martin of
Bestenover it was held that the peasant was free although paying
merchet. To tenure, merchet, being a personal payment, should have no
relation whatever. In case of doubt as to the character of the tenure,
the inquiry ought to have been entirely limited to the question whether
rents and services were certain or not[119], because it was established
that even a free tenement could be encumbered with base services. In
reality the earlier practice of the courts was to inquire of what
special kind the services and customs were, whether merchet and fine for
selling horses and oxen had been paid, whether a man was liable to be
tallaged at will or bound to serve as reeve, whether he succeeded to his
tenancy by 'junior right' (the so-called Borough English rule), and the
like.
All this was held to be servile and characteristic of villainage[120]. I
shall have to discuss the question of services and customs again, when I
come to the information supplied by manorial documents. It is sufficient
for my present purpose to point out that two contradictory views were
taken of it during the thirteenth century; 'certain or uncertain?' was
the catchword in one case; 'of what kind?' in the other. A good
illustration of the unsettled condition of the law is afforded by the
case Prior of Ripley _v._ Thomas Fitz-Adam. According to the Prior, the
jurors called to testify as to services and tenures had, while admitting
the payment of tallage and merchet, asked leave to take the advice of
Robert Lexington, a great authority on the bench, whether a holding
encumbered by such customs could be free[121].
The subject is important, not only because its treatment shows to what
extent the whole law of social distinctions was still in a state of
fermentation, but also because the classification of tenures according
to the nature of customs may afford valuable clues to the origin of
legal disabilities in economic and political facts. The plain and formal
rule of later law, which is undoubtedly quite fitted to test the main
issue as to the power of the lord, is represented in earlier times by a
congeries of opinions, each of which had its foundation in some matter
of fact. We see here a state of things which on the one hand is very
likely to invite an artificial simplification, by an application of some
one-sided legal conception of serfdom, while on the other hand it seems
to have originated in a mixture and confusion of divers classes of serfs
and free men, which shaded off into each other by insensible degrees.
[The procedure in questions of _status_.]
The procedure in trials touching the question of status was decidedly
favourable to liberty. To begin with, only one proof was accepted as
conclusive against it--absolute proof that the kinsfolk of the person
claimed were villains by descent[122]. The verdict of a jury was not
sufficient to settle the question[123], and a man who had been refused
an assize in consequence of the defendant pleading villainage in bar
had the right notwithstanding such decision to sue for his liberty. When
the proof by kinship came on, two limitations were imposed on the party
maintaining servitude: women were not admitted to stand as links in the
proof because of their frailty and of the greater dignity of a man, and
one man was not deemed sufficient to establish the servile condition of
the person claimed[124]. If the defendant in a plea of niefty, or a
plaintiff in an action of liberty, could convincingly show that his
father or any not too remote ancestor had come to settle on the lord's
land as a stranger, his liberty as a descendant was sufficiently
proved[125]. In this way to prove personal villainage one had to prove
villainage by birth. Recognition of servile status in a court of record
and reference to a deed are quite exceptional.
The coincidence in all these points against the party maintaining
servitude is by no means casual; the courts proclaimed their leaning 'in
favour of liberty' quite openly, and followed it in many instances
besides those just quoted. It was held, for instance, that in defending
liberty every means ought to be admitted. The counsel pleading for it
sometimes set up two or three pleas against his adversary and declined
to narrow his contention, thus transgressing the rules against duplicity
of plea 'in favour of liberty[126].' In the case of a stranger settling
on the land, his liberty was always assumed, and the court declined to
construe any uncertainty of condition against him[127]. When villainage
was pleaded in bar against a person out of the power of the lord, the
special question was very often examined by a jury from the place where
the person excepted to had been lately resident, and not by a jury from
the country where he had been born[128]. This told against the lord, of
course, because the jurors might often have very vague notions as to the
previous condition of their new fellow-countryman[129].
It would be impossible to say in what particular cases this partiality
of the law is to be taken as a consequence of enlightened and
humanitarian views making towards the liberation of the servile class,
and in what cases it may be traced to the fact that an original element
of freedom had been attracted into the constitution of villainage and
was influencing its legal development despite any general theory of a
servile character. There is this to be noticed in any case, that most of
the limitations we have been speaking of are found in full work at the
very time when villainage was treated as slavery in the books. One
feature, perhaps the most important of all, is certainly not dependent
on any progress of ideas: however complete the lord's power over the
serf may have been, it was entirely bound up with the manorial
organisation. As soon as the villain had got out of its boundaries he
was regularly treated as a free man and protected in the enjoyment of
liberty so long as his servile status had not been proved[130]. Such
protection was a legal necessity, a necessary complement to the warranty
offered by the state to its real free men. There could be no question of
allowing the lord to seize on any person whom he thought fit to claim as
his serf. And, again, if the political power inherent in the manor gave
the lord _A_ great privileges and immunities as to the people living
under his sway, this same manorial power began to tell against him as
soon as such people had got under the sway of lord _B_ or within the
privileged town _C_. The dependant could be effectually coerced only if
he got back to his unfree nest again or through the means of such
kinsfolk as he had left in the unfree nest[131]. And so the settlement
of disputed rights connected with status brings home forcibly two
important positions: first the theory of personal subjection is modified
in its legal application by influence in favour of liberty; and next
this influence is not to be traced exclusively to moral and intellectual
progress, but must be accounted for to a great extent by peculiarities
in the political structure of feudalism.
[Enfranchisement.]
One point remains to be investigated in the institution of villainage,
namely modes in which a villain might become free. I have had occasion
to notice the implied manumission which followed from a donation of land
to a bondman and his heirs, which in process of time was extended to all
contracts and concords between a lord and his serf. A villain was freed
also, as is well known, by remaining for a year and a day on the
privileged soil of a crown manor or a chartered town[132]. As to direct
manumission, its usual mode was the grant of a charter by which the lord
renounced all rights as to the person of his villain. Traces of other
and more archaic customs may have survived in certain localities, but,
if so, they were quite exceptional. Manumission is one of the few
subjects touched by Glanville in the doctrine of villainage, and he is
very particular as to its conditions and effects. He says that a serf
cannot buy his freedom, because he has no money or goods of his own. His
liberty may be bought by a third person however, and his lord may
liberate him as to himself, but not as regards third persons. There
seems to be a want of clearness in, if not some contradiction between
these two last statements, because one does not see how manumission by
a stranger could possibly be wider than that effected by the lord.
Again, the whole position of a freed man who remains a serf as regards
everybody but his lord is very difficult to realize, even if one does
not take the later view into account, which is exactly the reverse,
namely that a villain is free against everybody but his lord. I may be
allowed to start a conjecture which will find some support in a later
chapter, when we come to speak about the treatment of freedom and
serfdom in manorial documents. It seems to me that Glanville has in mind
liberation _de facto_ from certain duties and customs, such as
agricultural work for instance, or the payment of merchet. Such
liberation would not amount to raising the status of a villain, although
it would put him on a very different footing as to his lord[133].
However this may be, if from Glanville's times we come down to Bracton
and to his authorities, we shall find all requirements changed, but
distinct traces of the former view still lingering in occasional
decisions and practices. There are frequent cases of villains buying
their freedom with their own money[134], but the practice of selling
them for manumission to a stranger is mentioned both in Bracton's
Treatise[135] and in his Notebook. A decision of 1226 distinctly
repeats Glanville's teaching that a man may liberate his serf as to
himself and not as to others. The marginal note in the Note-book very
appropriately protests against such a view, which is certainly quite
inconsistent with later practice[136]. Such flagrant contradictions
between authorities which are separated barely by some sixty or seventy
years, and on points of primary importance too, can only tend to
strengthen the inference previously drawn from other facts--that the law
on the subject was by no means square and settled even by the time of
Bracton, but was in every respect in a state of transition.
CHAPTER III.
ANCIENT DEMESNE.
[Definition.]
The old law books mention one kind of villainage which stands out in
marked contrast with the other species of servile tenure. The peasants
belonging to manors which were vested in the crown at the time of the
Conquest follow a law of their own. Barring certain exceptions, of which
more will be said presently, they enjoy a certainty of condition
protected by law. They are personally free, and although holding in
villainage, nobody has the right to deprive them of their lands, or to
alter the condition of the tenure, by increasing or changing the
services. Bracton calls their condition one of privileged villainage,
because their services are base but certain, and because they are
protected not by the usual remedies supplied at common law to free
tenants, but by peculiar writs which enforce the custom of the
manor[137]. It seems well worth the while to carefully investigate this
curious case with a view to get at the reasons of a notable deviation
from the general course, for such investigation may throw some reflected
light on the treatment of villainage in the common law.
Legal practice is very explicit as to the limitation of ancient demesne
in time and space. It is composed of the manors which belonged to the
crown at the time of the Conquest[138]. This includes manors which had
been given away subsequently, and excludes such as had lapsed to the
king after the Conquest by escheat or forfeiture[139]. Possessions
granted away by Saxon kings before the Conquest are equally
excluded[140]. In order to ascertain what these manors were the courts
reverted to the Domesday description of _Terra Regis_. As a rule these
lands were entered as crown lands, T.R.E. and T.R.W., that is, were
considered to have been in the hand of King Edward in 1066, and in the
hand of King William in 1086. But strictly and legally they were crown
lands at the moment when King William's claim inured, or to use the
contemporary phrase, 'on the day when King Edward was alive and dead.'
The important point evidently was that the Norman king's right in this
case bridged over the Conquest, and for this reason such possessions are
often simply said to have been royal demesne in the time of Edward the
Confessor. This legal view is well illustrated by a decision of the
King's Council, quoted by Belknap, Chief Justice of the Common Pleas, in
1375. It was held that the manor of Tottenham, although granted by
William the Conqueror to the Earl of Chester before the compilation of
Domesday, was ancient demesne, as having been in the hands both of St.
Edward and of the Conqueror[141]. And so 1066 and not 1086 is the
decisive year for the legal formation of this class of manors[142].
[Tenure in ancient demesne a kind of villainage.]
In many respects the position of the peasantry in ancient demesne is
nearly allied to that of men holding in villainage at common law. They
perform all kinds of agricultural services and are subject to duties
quite analogous to those which prevail in other places; we may find on
these ancient manors almost all the incidents of servile custom.
Sometimes very harsh forms of distress are used against the
tenants[143]; forfeiture for non-performance of services and
non-payments of rents was always impending, in marked contrast with the
considerate treatment of free tenantry in such cases[144]. We often come
across such base customs as the payment of merchet in connexion with the
'villain socmen' of ancient demesne[145]. And such instances would
afford ample proof of the fact that their status has branched off from
the same stem as villainage, if such proof were otherwise needed.
[Privileges of ancient demesne.]
The side of privilege is not less conspicuous. The indications given by
the law books must be largely supplemented from plea rolls and
charters. The special favour shown to the population on soil of ancient
demesne extends much further than a regulation of manorial duties would
imply, it resolves itself to a large extent into an exemption from
public burdens. The king's manor is treated as a franchise isolated from
the surrounding hundred and shire, its tenants are not bound to attend
the county court or the hundred moot[146], they are not assessed with
the rest for danegeld or common amercements or the murder fine[147],
they are exempted from the jurisdiction of the sheriff[148], and do not
serve on juries and assizes before the king's justices[149]; they are
free from toll in all markets and custom-houses[150]. Last, but not
least, they do not get taxed with the country at large, and for this
reason they have originally no representatives in parliament when
parliament forms itself. On the other hand, they are liable to be
tallaged by the king without consent of parliament, by virtue of his
private right as opposed to his political right[151]. This last
privilege gave rise to a very abnormal state of things, when ancient
demesne land had passed from the crown to a subject. The rule was, that
the new lord could not tallage his tenants unless in consequence of a
royal writ, and then only at the same time and in the same proportion as
the king tallaged the demesnes remaining in his hand[152]. This was an
important limitation of the lord's power, and a consequence of the wish
to guard against encroachments and arbitrary acts. But it was at the
same time a curious perversion of sovereignty:--the person living on
land of this description could not be taxed with the county[153], and if
he was taxed with the demesnes, his lord received the tax, and not the
sovereign. I need not say that all this got righted in time, but the
anomalous condition described did exist originally. There are traces of
a different view by which the power of imposing tallage would have been
vested exclusively in the king, even when the manor to be taxed was one
that had passed out of his hand[154]. But the general rule up to the
fourteenth century was undoubtedly to relinquish the proceeds to the
holder of the manor. Such treatment is eminently characteristic of the
conception which lies at the bottom of the whole institution of ancient
demesne. It is undoubtedly based on the private privilege of royalty.
All the numerous exceptions and exemptions from public liabilities and
duties flow from one source: the king does not want his land and his
men to be subjected to any vexatious burdens which would lessen their
power of yielding income[155]. Once fenced in by royal privilege, the
ancient demesne manor keeps up its private immunity, even though it
ceases to be royal. And this is the second fact, with which one has to
reckon. If the privileged villainage of ancient demesne is founded on
the same causes as villainage pure and simple, the distinguishing
element of 'privilege' is supplied to it by the private interest of the
king. This seems obvious enough, but it must be insisted upon, because
it guards against any construction which would pick out one particular
set of rights, or one particular kind of relations as characteristic of
the institution. Legal practice and later theory concerned themselves
mostly with peculiarities of procedure, and with the eventuality of a
subject owning the manor. But the peculiar modes of litigation
appropriate to the ancient demesne must not be disconnected from other
immunities, and the ownership of a private lord is to be considered only
as engrafted on the original right of the king. With this preliminary
caution, we may proceed to an examination of those features which are
undoubtedly entitled to attract most attention, namely, the special
procedure which is put in action when questions arise in any way
connected with the soil of ancient demesne.
[Parvum breve de recto.]
Bracton says, that in such cases the usual assizes and actions do not
lie, and the 'little writ of right close' must be used 'according to the
custom of the manor.' The writ is a 'little and a close' one, because it
is directed by the king to the bailiffs of the manor and not to the
justices or to the sheriff[156].
It does not concern freehold estate, but only land of base though
privileged tenure. An action for freehold also may be begun in a
manorial court, but in that case the writ will be 'the writ of right
patent' and not 'the little writ of right close[157].'
The exclusion of the tenants from the public courts is a self-evident
consequence of their base condition; in fact, pleading ancient demesne
in bar of an action is, in legal substance, the same thing as pleading
villainage[158]. Of course, an outlet was provided by the manorial writ
in this case, and there was no such outlet for villains outside the
ancient demesne; but as to the original jurisdiction in common law
courts, jurisdiction that is in the first instance, the position was
identical. Though legally self-evident, this matter is often specially
noticed, and sometimes stress is laid on peculiarities of procedure,
such as the inapplicability of the duel and the grand assize[159] in
land to ancient demesne, peculiarities which, however, are not
universally found[160], and which, even if they were universally found,
would stand as consequence and not as cause. This may be accounted for
by the observation that the legal protection bestowed on this particular
class of holdings, notwithstanding its limitations, actually imparted to
them something of the nature of freehold, and led to a great confusion
of attributes and principles. Indeed, the difficulty of keeping within
the lines of privileged 'villainage' is clearly illustrated by the fact
that the 'little writ,' with all its restrictions, and quite apart from
any contention with the lord, recognises the tenant in ancient demesne
as capable of independent action.
Villains, or men holding in villainage, have no writ, either manorial or
extra-manorial, for the protection or recovery of their holdings, and
the existence of such an action for villain socmen is in itself a
limitation of the power of lord and steward, even when they are no
parties to the case. And so the distinction between freehold and ancient
demesne villainage is narrowed to a distinction of jurisdiction and
procedure. This is so much the case that if, by a mere slip as it were,
a tenement in ancient demesne has been once recovered by an assize of
novel disseisin, the exclusive use of the 'little writ' is broken, and
assizes will ever lie hereafter, that is, the tenement can be sued for
as 'freehold' in common law courts[161]. Surely this could happen only
because the tenure in ancient demesne, although a kind of villainage,
closely resembled freehold.
[The 'little writ' in manors alienated from the Crown.]
One has primarily to look for an explanation of these great privileges
to manors, which had been granted by the king to private lords. On such
lands the 'little writ' lay both when 'villain socmen' were pleading
against each other[162], and when a socman was opposed to his lord as a
plaintiff[163]. This last eventuality is, of course, the most striking
and important one. There were some disputes and some mistakes in
practice as to the operation of the rule. The judges were much exercised
over the question whether an action was to be allowed against the lord
in the king's court. The difficulty was, that the contending parties had
different estates in the land, the one being possessed of the customary
tenancy in ancient demesne, and the other of the frank fee. There are
authoritative fourteenth-century decisions to the effect that, in such
an action, the tenant had the option between going to the court at
Westminster or to the ancient demesne jurisdiction[164].
The main fact remains, that a privileged villain had 'personam standi in
judicio' against his lord, and actually could be a plaintiff against
him. Court rolls of ancient demesne manors frequently exhibit the
curious case of a manorial lord who is summoned to appear, distrained,
admitted to plead, and subjected to judgment by his own court[165]. And
as I said, one looks naturally to such instances of egregious
independence, in order to explain the affinity between privileged
villainage and freehold. The explanation would be insufficient, however,
and this for two simple reasons. The passage of the manor into the hands
of a subject only modifies the institution of ancient demesne, but does
not constitute it; the 'little writ of right' is by no means framed to
suit the exceptional case of a contention between lord and tenant; its
object is also to protect the tenants against each other in a way which
is out of the question where ordinary villainage is concerned. The two
reasons converge, as it were, in the fact that the 'little writ of
right' is suable in all ancient demesne manors without exception, that
it applies quite as much to those which remain in the crown as to those
which have been alienated from it[166]. And this leads us to a very
important deduction. If the affinity of privileged villainage and
freehold is connected with the 'little writ of right' as such, and not
merely with a particular application of it, if the little writ of right
is framed for all the manors of ancient demesne alike, the affinity of
privileged villainage and freehold is to be traced to the general
condition of the king's manors in ancient demesne[167].
Although the tenants in ancient demesne are admitted to use the 'little
writ of right' only, their court made it go a long way; and in fact, all
or almost all the real actions of the common law had their parallel in
its jurisdiction. The demandant, when appearing in court, made a
protestation to sue in the nature of a writ of mort d'ancestor or of
dower[168] or the like, and the procedure varied accordingly, sometimes
following very closely the lines of the procedure in the high courts,
and sometimes exhibiting tenacious local usage or archaic
arrangements[169].
[Procedure of revision.]
Actions as to personal estate could be pleaded without writ, and as for
the crown pleas they were reserved to the high courts[170]. But even in
actions regarding the soil a removal to these latter was not
excluded[171]. Evocation to a higher court followed naturally if the
manorial court refused justice and such removal made the land frank
fee[172]. The proceedings in ancient demesne could be challenged, and
thereupon a writ of false judgment brought the case under the cognizance
of the courts of common law. If on examination an error was found, the
sentence of the lower tribunal was quashed and the case had to proceed
in the higher[173]. Instances of examination and revision are frequent
in our records[174]. The examination of the proceedings by the justices
was by no means an easy matter, because they were constantly confronted
by appeals to the custom of the manor and counter appeals to the
principles of the common law of England. It was very difficult to adjust
these conflicting elements with nicety. As to the point of fact, whether
an alleged custom was really in usage or not, the justices had a good
standing ground for decision. They asked, as a rule, whether precedents
could be adduced and proved as to the usage[175]; they allowed a great
latitude for the peculiarities of customary law; but the difficulty was
that a line had to be drawn somewhere[176]. This procedure of revision
on the whole is quite as important a manifestation of the freehold
qualities of privileged villainage as pleading by writ. Men holding in
pure villainage also had a manorial court to go to and to plead in, but
its judicial organisation proceeded entirely from the will and power of
the lord, and it ended where his will and power ended; there was no
higher court and no revision for such men. The writ of false judgment in
respect of tenements in ancient demesne shows conclusively that the
peculiar procedure provided for the privileged villains was only an
instance and a variation of the general law of the land, maintaining
actionable rights of free persons. And be it again noted, that there was
no sort of difference as to revision between those manors which were in
the actual possession of the crown and those which were out of it[177].
Revision and reversal were provided not as a complement to the legal
protection of the tenant against the lord, but as a consequence of that
independent position of the tenant as a person who has rights against
all men which is manifested in the _parvum breve_[178]. It is not
without interest to notice in this connexion that the _parvum breve_ is
sometimes introduced in the law books, not as a restriction put upon the
tenant, nor as the outcome of villainage, but as a boon which provides
the tenant with a plain form of procedure close at hand instead of the
costly and intricate process before the justices[179].
[Breve de 'Monstraverunt'.]
If protection against the lord had been the only object of the procedure
in cases of ancient demesne, one does not see why there should be a
'little writ' at all, as there was a remedy against the lord's
encroachments in the writ of 'Monstraverunt,'[180] pleaded before the
king's justices. As it is, the case of disseisin by the lord, to whom
the manor had come from the crown, was treated simply as an instance of
disseisin, and brought under the operation of the writ of right, while
the 'Monstraverunt' was restricted to exaction of increased services and
change of customs[181]. The latter writ was a very peculiar one, in fact
quite unlike any other writ. The common-law rule that each tenant in
severalty has to plead for himself did not apply to it; all join for
saving of charges, albeit they be several tenants[182]. What is more,
one tenant could sue for the rest and his recovery profited them all; on
the other hand, if many had joined in the writ and some died or
withdrew, the writ did not abate for this reason, and even if but one
remained able and willing to sue he could proceed with the writ[183].
These exceptional features were evidently meant to facilitate the action
of humble people against a powerful magnate[184]. But it seems to me
that the deviation from the rules governing writs at common law is to
be explained not only by the general aim of the writ, but also by its
origin.
[Petition.]
In form it was simply an injunction on a plaint. When for some reason
right could not be obtained by the means afforded by the common law, the
injured party had to apply to the king by petition. One of the most
common cases was when redress was sought for some act of the king
himself or of his officers, when the consequent injunction to the common
law courts or to the Exchequer to examine the case invariably began with
the identical formula which gave its name to the writ by which
privileged villains complained of an increase of services; _monstravit_
or _monstraverunt N.N._; _ex parte N.N. ostensum est_:--these are the
opening words of the king's injunctions consequent upon the humble
remonstrations of his aggrieved subjects[185]. Again, we find that the
application for the writ by privileged villains is actually described as
a plaint[186]. In some cases it would be difficult to tell on the face
of the initiatory document, whether we have to do with a '_breve de
monstraverunt_' to coerce the manorial lord, or with an extraordinary
measure taken by the king with a view to settling his own
interests[187].
[The 'Monstraverunt' on the king's own land.]
And this brings me to the main point. Although the writ under discussion
seems at first sight to meet the requirement of the special case of
manors alienated from the crown, on closer inspection it turns out to be
a variation of the peculiar process employed to insist upon a right
against the crown. Parallel to the 'Monstraverunt' against a lord in the
Common Pleas we have the 'Monstraverunt' against the king's bailiff in
the Exchequer. The following mandate for instance is enrolled in the
eventful year 1265: 'Monstraverunt Regi homines castri sui de Brambur et
Schotone quod Henricus Spring constabularius castri de Brambur injuste
distringit eos ad faciendum alia servicia et alias consuetudines quam
facere consueverunt temporibus predecessorum Regis et tempore suo. Ideo
mandatum est vicecomiti quod venire etc. predictum Henricum a die Pasche
in xv dies ad respondendum Regi et predictis hominibus de predicta terra
et breve etc.'[188] There is not much to choose between this and the
enrolment of a 'breve de monstraverunt' in the usual sense beyond the
fact that it is entered on a Roll of Exchequer Memoranda. In 1292 a
mandate of King Edward I to the Barons of the Exchequer is entered in
behalf of the men of Costeseye in Norfolk who complained of divers
grievances against Athelwald of Crea, the bailiff of the manor. The
petition itself is enrolled also, and it sets forth, that whereas the
poor men of the king of the base tenure in the manor of Costeseye held
by certain usages, from a time of which memory runs no higher, as well
under the counts of Brittany as under the kings to whom the manor was
forfeited, now bailiff Athelwald distrains them to do other services
which ought to be performed by pure villains. They could sell and lease
their lands in the fields at pleasure, and he seizes lands which have
been sold in this way and amerces them for selling; besides this he
makes them serve as reeves and collectors, and the bailiff of the late
Queen Eleanor tallaged them from year to year to pay twenty marks, which
they were not bound to do, because they are no villains to be tallaged
high and low[189]. Such is the substance of this remarkable document, to
which I shall have to refer again in other connexions. What I wish to
establish now is, that we have on the king's own possessions the exact
counterpart of the 'breve de monstraverunt.' The instances adduced are
perhaps the more characteristic because the petitioners had not even the
strict privilege of ancient demesne to lean upon, as one of the cases
comes from Northumberland, which is not mentioned in Domesday, and the
other concerns tenants of the honour of Richmond.
There can be no doubt that the tenantry on the ancient demesne had even
better reasons for appealing to immemorial usage, and certainly they
knew how to urge their grievances. We may take as an instance the notice
of a trial consequent upon a complaint of the men of Bray against the
Constable of Windsor. Bray was ancient demesne and the king's tenants
complained that they were distrained to do other services than they were
used to do. The judgment was in their favour[190].
The chief point is that the writ of 'Monstraverunt' appears to be
connected with petitions to the king against the exactions of his
officers, and may be said in its origin to be applicable as much to the
actual possessions of the crown as to those which had been granted away
from it. This explains a very remarkable omission in our best
authorities. Although the writ played such an important part in the law
of ancient demesne, and was so peculiar in its form and substance,
neither Bracton nor his followers mention it directly. They set down
'the little writ of right close' as the only writ available for the
villain socmen. As the protection in point of services is nevertheless
distinctly affirmed by those writers, and as the 'Monstraverunt' appears
in full working order in the time of Henry III and even of John[191],
the obvious explanation seems to be that Bracton regarded the case as
one not of writ but of petition, a matter, we might say, rather for
royal equity than for strict law. Thus both the two modes of procedure
which are distinctive of the ancient demesne, namely the 'parvum breve'
and the 'Monstraverunt,' though they attain their full development on
the manors that have been alienated, seem really to originate on manors
which are in the actual possession of the crown.
[Alienation of Royal Manors.]
If we now examine the conditions under which the manors of the ancient
demesne were alienated by the crown, we shall at once see that no very
definite line could be drawn between those which had been given away and
those which remained in the king's hand. The one class gradually shades
off into the other. A very good example is afforded by the history of
Stoneleigh Abbey. In 1154 King Henry II gave the Cistercian monks of
Radmore in Staffordshire his manor of Stoneleigh in exchange for their
possessions in Radmore. The charter as given in the Register of the
Abbey seems to amount to a complete grant of the land and of the
jurisdiction. Nevertheless, we find Henry II drawing all kinds of
perquisites from the place all through his reign, and it is specially
noticed that his writs were directed not to the Abbot or the Abbot's
bailiffs, but to his own bailiffs in Stoneleigh[192]. In order to get
rid of the inconveniences consequent upon such mixed ownership, Abbot
William of Tyso bought a charter from King John, granting to the Abbey
all the soke of Stoneleigh[193]. But all the same the royal rights did
not yet disappear. There were tenants connected with the place who were
immediately dependent on the king[194], and his bailiff continued to
exercise functions by the side of, and in conjunction with, the officers
of the Abbot[195]. In the 50th year of Henry III a remarkable case
occurred:--a certain Alexander of Canle was tried for usurping the
rights of the Abbot as to the tenantry in the hamlet of Canle, and it
came out that one of his ancestors had succeeded in improving his
position of collector of the revenue into the position of an owner of
the rents. Although the rights which were vindicated against him were
the rights of the Abbot, still the king entered into possession and
afterwards transferred the possession to the Abbot[196]. In one word,
the king is always considered as 'the senior lord' of Stoneleigh; his
lordship is something more direct than a mere feudal over-lordship[197].
We find a similar state of things at King's Ripton. The manor had been
let in fee farm to the Abbots of Ramsey. In case of a tenement lapsing
into the lord's hands, it is seized sometimes by the bailiff of the
king, sometimes by the bailiffs of the Abbot[198]. The royal writs
again are directed not to the Abbot, but to his bailiff. The same was
the case at Stoneleigh[199], and indeed this seems to have been the
regular course on ancient demesne manors[200]. This curious way of
ignoring the lord himself and addressing the writ directly to his
officers seems an outcome of the fundamental assumption that of these
manors there was no real lord but the king, and that the private lord's
officers were acting as the king's bailiffs.
According to current notions the demesnes of the crown ought not to have
been alienated at all. Although alienated by one king they were
considered as liable to be resumed by his successors[201]. And as a
matter of fact such resumptions were by no means unusual. Edward I gave
an adequate expression to this doctrine when he ordered an inquisition
into the state of the tenantry at Stoneleigh:--he did not wish any
encroachment made on the old constitution of the manor, for he had
always in mind the possibility that his royal rights would be resumed by
himself or by one of his successors[202].
[Services certain on Royal Manors.]
If we turn to the court rolls of a manor which is actually in the king's
hand and compare them with those of a manor which he has granted to some
convent or some private lord, we see hardly any difference between them.
The rolls of the manor of Havering at the Record Office, although
comparatively late, afford a good insight into the constitution of a
manor retained in the king's own hand. They contain a good many writs of
right, and though, naturally enough, the tenants do not bring actions
against the king, we find an instance in which the king brings an action
against his tenant, and pleads before a court which is held in his own
name[203]. This is good proof that the condition of the tenants was by
no means dependent on the arbitrary action of the manorial officers.
When King Henry II granted Stoneleigh to the Cistercians he displaced a
number of 'rustics' from their holdings, and while doing this he
recognised their right and enjoined the sheriff of Warwickshire to give
them an equivalent for what they had lost in consequence of the
grant[204]. The notion from which all inquiry consequent upon a
'Monstraverunt' starts is always this, that the tenants were holding by
_certain_ (i.e. by fixed) services at the time when the manor was in
the king's own hand. The certainty is not created by the fact that the
manor passes away from the king to some one else; it exists when the
land is royal land and therefore cannot be destroyed on land that has
been alienated. So true is this that Bracton and Britton give their
often cited description of privileged villainage without alluding to the
question whether or no the manor is still in the king's hand[205];
Britton even applies this description primarily to the king's own
possessions by his way of stating the law as the direct utterance of the
king's command. The well-known fact that the 'ferm' or rent of royal
manors was not always fixed, that we constantly hear of an increased
rental (_incrementum_) levied in addition to the old 'ferm' (_assisa_;
_redditus antiquitus assisus_), can be easily reconciled with this
doctrine[206]. The prosperity of the country was gradually rising; both
in agricultural communities and in towns, new tenements and houses, new
occupations and revenues were growing, and it was not the interest
either of the communities or of the lord to compress this development
within an unelastic bond. In principle the increased payments fell on
this new growth on the demesne, although this may in some cases have
been due to exactions against which the people could remonstrate only in
the name of immemorial custom, and only by way of petition since nobody
could judge the king. In principle, too, certainty of condition was
admitted as to the privileged villains on the king's demesnes[207].
[Trial of services in 'Monstraverunt'.]
This serves to explain the procedure followed by the court when a
question of services was raised by a writ of 'Monstraverunt.' The first
thing, of course, was to ascertain whether the manor was ancient demesne
or not, and for this purpose nothing short of a direct mention in
Domesday was held to be sufficient[208]. When this question had been
solved in the affirmative, a jury had to decide what the customs and
duties were, by which the ancestors of the plaintiffs held at the time
when the crown was possessed of the manor. In principle it was always
considered that such had been the services at the time of the
Conquest[209], but practically, of course, there could be no attempt to
examine into such ancient history. The men of King's Ripton actually
pleaded back to the time of King Cnut, and maintained that no
prescription was available against their rights as no prescription could
avail against the king[210]. The courts naturally declined to go higher
than men could remember, but they laid down this limitation entirely as
one of practice and not of principle[211]. Metingham demanded that the
claimants should make good their contention even for a single day in
Richard Coeur de Lion's time[212]. The men of Wycle combine both
assertions in their contention against Mauger; they appeal to the age of
the first Norman kings, but offer to prove the certainty of their
services in the reigns of Richard and John[213].
[Nature of tenancy in ancient demesne.]
Now all that has been said hitherto applied to 'the tenants in ancient
demesne' indiscriminately, without regard to any diversity of classes
among them. Hitherto I have not noticed any such diversity, and in so
doing I am warranted by the authorities. Those authorities commonly
speak of 'men' or 'tenants in ancient demesne' without any further
qualification[214]. Sometimes the expression 'condition of ancient
demesne' also is used. But closer examination shows a variety of classes
on the privileged soil, and leads to a number of difficult and
interesting problems.
To begin with, the nature of the tenancy in general has been much
contested. As to the law of later times Mr. Elton puts the case in this
way: 'There is great confusion in the law books respecting this tenure.
The copyholders of these manors are sometimes called tenants in ancient
demesne, and land held in this tenure is said to pass by surrender and
admittance. This appears to be inaccurate. It is only the freeholders
who are tenants in ancient demesne, and their land passes by common law
conveyances without the instrumentality of the lord. Even Sir W.
Blackstone seems to have been misled upon this point. There are however,
as a rule, in manors of ancient demesne, customary freeholders and
sometimes copyholders at the will of the lord, as well as the true
tenants in ancient demesne[215].' Now such a description seems strangely
out of keeping with the history of the tenure. Blackstone speaks of
privileged copyhold as descended from privileged villainage[216]; and as
to the condition in the thirteenth century of those 'men' or 'tenants in
ancient demesne' of whom we have been speaking, there can be no doubt.
Bracton and his followers lay down quite distinctly that their tenure is
villainage though privileged villainage. The men of ancient demesne are
men of free blood holding in villainage[217]. And to take up the
special point mentioned by Mr. Elton--conveyance by surrender and
admittance is a quite necessary feature of the tenure[218]: conveyance
by charter makes the land freehold and destroys its ancient demesne
condition[219]. But although this is so clear in the authorities of the
thirteenth century, there is undoubtedly a great deal of confusion in
later law books, and reasons are not wanting which may account for this
fact and for the doctrine propounded by Mr. Elton in conformity with
certain modern treatises and decisions.
[Classes of tenantry.]
We may start with the observation, that privileged villains or villain
socmen are not the only people to be found on the soil of the ancient
demesne. There are free tenants there and pure villains too[220]. Free
socage is often mentioned in these manors, and it is frequently pleaded
in order to get a trial transferred to the Common Law Courts. When the
question is raised whether a tenement is free or villain socage, the
fact that it has been conveyed by feoffment and charter is treated, as
has just been pointed out, as establishing its freehold character and
subjecting it to the ordinary common law procedure[221]. On the other
hand, registers and extents of ancient demesne manors sometimes treat
separately of 'nativi' or 'villani' as distinguished from the regular
customary tenants, and describe their services as being particularly
base[222]. In trials it is quite a common thing for a lord, when accused
of having altered the services, to plead that the plaintiffs were his
villains to be treated at will. Attempts were made in such cases to take
advantage of the general term 'men of ancient demesne,' and to argue
that all the population on the crown manors must be of the same
condition, the difference of rank applying only to the amount and the
kind of services, but not to their certainty, which ought to be taken
for granted[223]. But strictly and legally the lord's plea was
undoubtedly good: the courts admitted it, and when it was put forward
proceeded to examine the question of fact whether the lord had been
actually seised of certain or of uncertain services[224]. It is of
considerable importance to note that the difference between villains
pure and villains privileged was sometimes connected with the
distinction between the lord's demesne and the tenant's land in the
manor[225]. The demesne proper was frank fee in the hands of the lord,
and could be used by him at his pleasure. If he chose to grant it away
to villains in pure villainage, the holdings thus formed could have no
claim to rank as privileged land. It was assumed that some such holdings
had been formed at the very beginning, as it were, that is at a time
beyond memory of man, but tenements at will could be created at a later
time on approved waste or on soil that had escheated to the lord and in
this way passed through his demesne[226]. One of the reasons of later
confusion must be looked for in the fact that the pure villain holdings
gradually got to be recognised at law as copyhold or base customary
tenures. They were thus brought dangerously near to ancient demesne
socage, which was originally nothing but base customary tenure. The very
fact of copyhold thus gaining on villain socage may have pushed this
last on towards freehold. Already the Old Natura Brevium does not know
exactly how to make distinctions. It speaks of three species of
socage--free, ancient demesne, and base. The line is soon drawn between
the first two, but the third kind is said to be held by uncertain
services, and sued by writ of 'Monstraverunt' instead of having the
writs of right and 'Monstraverunt' of ancient demesne socage[227].
Probably what is meant is a species of copyhold which is not socage, and
the writ of 'Monstraverunt' attributed to it may perhaps be the plaint
or petition which is the initial move in a suit for the protection of
copyhold in the manorial court.
[Villain socage.]
In the time of Henry III and of the Edwards the nature of ancient
demesne tenure was better understood. At the close of the thirteenth
century the lawyers distinguish three kinds of men--free, villains, and
socmen[228]. In order to be quite accurate people spoke of _villain
socmen_ or _little socage_[229] in opposition to free. But even at that
time there were several confusing features about the case. The certainty
of condition made the tenure of the villain socmen so like a freehold
that it was often treated as such in the manorial documents. In the
Stoneleigh Register the peculiar nature of socage in ancient demesne is
described fully and clearly. It is distinguished in so many words from
tenancy at will, and a detailed description of conveyance by surrender
in contrast with conveyance by charter seems to give the necessary
material for the distinction between it and freehold[230]. But still the
fundamental notion of free men holding in villainage gets lost sight
of. Only some of the cottiers are said to hold in villainage. The more
important tenants, the socmen holding virgates and half-virgates, are
not only currently described as freeholders in the Register, but they
are entered as such on the Warwickshire Hundred Roll[231]. The term
'parva sokemanria' is applied in the Stoneleigh Register only to a few
subordinate holdings which are undoubtedly above the level of pure
villainage, but cannot be definitely distinguished from the other kinds
of socage in the Register. This may serve as an indication of the
tendency of manorial communities to consider privileged villainage as a
free tenure, but legal pleadings and decisions were also creating
confusion for another reason, because they tended, as has been said, to
consider the whole body of men on the ancient demesne in one lump as it
were. The courts very often applied as the one test of tenure and
service the question whether a person was a descendant by blood of men
of ancient demesne or a stranger[232]. In connexion with this the court
rolls testify to the particular care taken to control any intrusion of
strangers into the boundaries of a privileged manor[233]. This was done
primarily in the interests of the lord, but the tenantry also seem to
have sometimes been jealous of their prerogatives[234], and it is only
in the course of the fourteenth century that they begin to open their
gates to strangers, 'adventicii[235].' However this may be, the practice
of drawing the line between native stock and strangers undoubtedly
countenanced the idea that all the tenants of native stock were alike,
and in this way tended to confuse the distinction between freeholders,
pure villains, and villain socmen.
The courts made several attempts to insist on a firm classification, but
some of these were conceived in such an unhappy spirit that they
actually embroiled matters. The conduct of the king's judges was
especially misdirected in one famous case which came up several times
before the courts during the thirteenth century. The tenants of
Tavistock in Devonshire were seeking protection against their lords, and
appealing to the right of ancient demesne. The case was debated two or
three times during Henry III's reign, and in 1279 judgment was given
against the plaintiffs by an imposing quorum, as many as eight judges
with the Chief Justice Ralph Hengham at their head. It was conceded that
Tavistock was ancient demesne, but the claimants were held to be
villains and not villain socmen, and this on the ground that the
Domesday description did not mention socmen, but only villains[236]. It
seems strange to dispute a decision given with such solemnity by men who
were much better placed to know about these things than we are, but
there does not seem to be any possible doubt that Hengham and his
companions were entirely wrong. Their decision is in contradiction with
almost all the recorded cases; it was always assumed that the stiff
Domesday terminology was quite insufficient to show whether a man was a
pure villain or a free man holding in villainage, which last would be
the villain socman in ancient demesne. If Hengham's doctrine had been
taken as a basis for decision in these cases, no ancient demesne tenancy
would have been recognised at all out of the Danelaw counties, that is
in far the greater part of England, as Domesday never mentions socmen
there at all. In the Danelaw counties, on the other hand, the privilege
would have been of no use, as those who were called socmen there were
freeholders protected without any reference to ancient demesne.
Altogether the attempt to make Domesday serve the purpose of
establishing the mode of tenure for the thirteenth century must be
called a misdirected one. It was quite singular, as the courts generally
went back upon Domesday only with the object of finding out whether a
particular manor had been vested in the crown at the time of the
Conquest or not. It should be noted that Bracton considered the case
from a very different point of view, as one may judge by the note he
jotted down on the margin of his Note-book against a trial of 1237-8. He
says: 'Nota de villanis Henrici de Tracy de Tawystoke qui nunquam
fuerunt in manu Domini Regis nec antecessorum suorum et loquebantur de
tempore Regis Edwardi coram W. de Wiltona[237].' Wilton's decision must
have been grounded on the assumption that the ancestors of the claimants
were strangers to the manor, or else that the manor had never formed
part of the ancient demesne. This would, of course, be in direct
contradiction to the opinion that the Tavistock tenants were descended
from the king's born villains.
I cannot help thinking that Hengham's decision may have been prompted
either by partiality towards the lord of the manor or by an
ill-considered wish to compress the right of ancient demesne within the
narrowest bounds possible. In any case this trial deserves attention by
reason of the eminent authorities engaged in drawing up the judgment,
and as illustrating the difficulties which surround the points at issue
and lead to confusion both in the decisions and in the treatment of them
by law writers. In order to gain firm ground we must certainly go back
again to the fundamental propositions laid down with great clearness by
Bracton. It was not all the tenants on ancient demesne soil that had a
right to appeal to its peculiar privileges--some had protection at
Common Law and some had no protection at all. But the great majority of
the tenants enjoyed special rights, and these men of ancient demesne
were considered to be free by blood and holding in villainage. If the
books had not noticed their personal freedom in so many words, it would
have been proved by the fact that they were always capable of leaving
their tenements and going away at pleasure.
[Bracton's historical explanation.]
Bracton does not restrict himself to this statement of the case; he adds
a few lines to give a historical explanation of it. 'At the time of the
Conquest,' says he, 'there were free men holding their lands freely, and
by free services or free customs. When they were ejected by stronger
people, they came back and received the same lands to be held in
villainage and by villain services, which were specified and
certain[238].'
The passage is a most interesting one, but it calls for some comment.
How is it that the special case of ancient demesne gets widened into a
general description of the perturbations consequent upon the Conquest?
For a general description it is; by the 'stronger folk,' the
'potentiores,' are certainly not meant the king and his officers only.
On the other hand, how can it be said of any but the ancient demesne
tenants that they resumed their holdings by certain though base
services? The wording is undoubtedly and unfortunately rather careless
in this most important passage, still the main positions which Bracton
intended to convey are not affected by his rather clumsy way of stating
them. Ancient demesne tenure, notwithstanding its peculiarities, is one
species of a mode of holding which was largely represented everywhere,
namely of the status of free men holding in villainage; this condition
had been strongly affected if not actually produced by the Conquest. It
is interesting to compare the description of the Conquest, as given at
greater length but in a looser way, in the Dialogus de Scaccario. It is
stated there that those who had actually fought against the Conqueror
were deprived of their lands for ever after. Those who for some reason
had not actually joined in the contest were suffered to hold their lands
under Norman lords, but with no claim to hereditary succession. Their
occupation being uncertain, their lords very often deprived them of
their lands and they had no means to procure restitution. Their
complaints gave rise to a discussion of the matter before the king, and
it was held that nothing could be claimed by these people by way of
succession from the time preceding the Conquest, and that actionable
rights could originate only in deeds granted by the Norman lords[239].
The Dialogus as compared with Bracton lays most stress on the opposite
side of the picture; the disabilities of persons holding at will are set
forth not only as a consequence of the state of things following
conquest _de facto_, but as the result of a legal reconsideration of the
facts. As a classification of tenures the passage would not be complete,
of course, since neither the important species of free socage recognised
by Domesday nor the ancient demesne tenure appears. It is only the
contrast between villainage and holding by charter that comes out
strongly. But in one way the Dialogus reinforces Bracton, if I may be
allowed to use the expression: for it traces back the formation of a
very important kind of villainage to the Conquest, and connects the
attempts of persons entangled into it to obtain protection with their
original rights before the Conquest.
[Saxon origin of ancient demesne tenure.]
Reverting now to the question of ancient demesne, we shall have to
consider what light these statements throw on the origin of the tenure.
I have noticed several times that ancient demesne socage was connected
in principle with the condition of things in Saxon times, immediately
before the Conquest. The courts had to impose limitations in order to
control evidence; the whole institution was in a way created by
limitation, because it restricted itself to the T.R.E. of Domesday as
the only acceptable test of Saxon condition. But, notwithstanding all
these features imposed by the requirements of procedure, ancient demesne
drew its origin distinctly from pre-Conquest conditions. The manors
forming it are taken as the manors of St. Edward[240]; the tenants,
whenever they want to make a solemn claim, set forth their rights from
the time of St. Edward[241], or even Cnut[242]. But does this mean that
the actual privileges of the tenure were extant in Saxon times? Surely
not. Such things as freedom from common taxation, exemption from toll,
separate jurisdiction, certainly existed in behalf of the king's
demesnes before the Conquest, but there is no intimation whatever that
the king's tenants enjoyed any peculiar right or protection as to their
holdings and services. The 'little writ of right' and the
'Monstraverunt' are as Norman, in a wide sense of the word, as the
freedom from serving on assizes or sending representatives to
parliament. But although there is no doubt that this tenure grew up and
developed several of its peculiarities after the Conquest, it had to
fall back on Saxon times for its substance[243], which may be described
in few words--legal protection of the peasantry. The influence of Norman
lawyers was exercised in shaping out certain actionable rights, the
effect of conquest was to narrow to a particular class a protection
originally conferred broadly, and the action of Saxon tradition was to
supply a general stock of freedom and independent right, from which the
privileged condition of Norman times could draw its nourishment, if I
may put it in that way. It would be idle now to discuss in what
proportion the Saxon influence on the side of freedom has to be
explained by the influx of men who had been originally owners of their
lands, and what may be assigned to the contractual character of Saxon
tenant-right. This subject must be left till we come to examine the
evidence supplied by Saxon sources of information. My present point is
that the ancient demesne tenure of the Conquest is a remnant of the
condition of things before the Conquest[244].
It may well be asked why the destructive effects of Norman victory were
arrested on ancient demesne soil? Was not the king as likely to exercise
his discretion in respect of the peasantry as any feudal lord, and is it
likely that he would have let himself be fettered by considerations and
obligations which did not bind his subjects? In view of such questions
one is tempted to treat the protection of the tenants on the ancient
demesne merely as a peculiar boon granted to the people whom the king
had to give away. I need not say that such an interpretation would be
entirely wrong. I hope I have been able to make out convincingly that
legal protection given against private lords on manors which had been
alienated was only an outgrowth from that certainty of condition which
was allowed on the king's own lands. I will just add now that one very
striking fact ought to be noticed in this connexion; certainty of tenure
and service is limited to one particular class in the manor, although
that class is the most numerous one. If this privilege came into being
merely by the fixation of status at the time when a manor passed from
the crown, the state of the villain pure would have got fixed in the
same way as that of the villain socman. But it did not, and so one
cannot shirk the difficult question, What gave rise to the peculiar
protection against the lord when the lord happened to be king?
I think that three considerations open the way out of the difficulty. To
begin with, the king was decidedly considered as the one great safeguard
of Saxon tradition and the one defender against Norman encroachments. He
had constantly to hear the cry about 'the laws of Edward the Confessor,'
and although the claim may be considered as a very vague one in general
matters, it became substantiated in this case of tenure and services by
the Domesday record. Then again, the proportion of free owners who had
lapsed into territorial dependence must have been much greater on the
king's land than anywhere else; it was quite usual to describe an
allodial owner from the feudal point of view as holding under the king
in a particular way, and villain socage was only one of several kinds of
socage after all. Last, but not least, the protection against exactions
was in reality directed not against the king personally but against his
officers, and the king personally was quite likely to benefit by it
almost as much as his men. It amounted after all only to a recognition
of definite customs in general, to a special judicial organisation of
the manor which made it less dependent upon the steward, and to the
facilities afforded for complaint and revision of judgments. As to this
last it must be noted that the king's men were naturally enough in a
better position than the rest of the English peasantry; the curse of
villainage was that manorial courts were independent of superior
organisation as far as the lower tenants were concerned. But courts in
royal manors were the king's courts after all, and as such they could
hardly be severed from the higher tribunals held in the king's name.
I may be allowed to sum up the conclusions of this chapter under the
following heads:--
1. The law of ancient demesne is primarily developed in regard to the
manors in the king's own hand.
2. The special protection granted to villain socmen in ancient demesne
is a consequence of a certainty of condition as much recognised in
manors which the king still holds as in those which he has alienated.
3. This certainty of condition is derived from the Conquest as the
connecting link between the Norman and the Saxon periods.
CHAPTER IV.
LEGAL ASPECT OF VILLAINAGE. CONCLUSIONS.
[Method of investigation.]
I have been trying to make out what the theories of the lawyers were
with regard to villainage in its divers ramifications. Were we to
consider this legal part of the subject merely as a sort of crust
superposed artificially over the reality of social facts, we should have
to break through the crust in order to get at the reality. But, of
course, the law regulating social conditions is not merely an external
superstructure, but as to social facts is both an influence and a
consequence. In one sense it is a most valuable product of the forces at
play in the history of society, most valuable just by reason of the
requirements of its formalism and of those theoretical tendencies which
give a very definite even if a somewhat distorted shape to the social
processes which come within its sphere of action.
The formal character of legal theory is not only important because it
puts things into order and shape; it suggests a peculiar and efficient
method of treating the historical questions connected with law. The
legal intellect is by its calling and nature always engaged in analysing
complex cases into constitutive elements, and bringing these elements
under the direction of principles. It is constantly struggling with the
confusing variety of life, and from the historian's point of view it is
most interesting when it succumbs in the struggle. There is no law,
however subtle and comprehensive, which does not exhibit on its logical
surface seams and scars, testifying to the incomplete fusing together of
doctrines that cannot be brought under the cover of one principle. And
so a dialectic examination of legal forms which makes manifest the
contradictions and confused notions they contain actually helps us to an
insight into the historical stratification of ideas and facts, a
stratification which cannot be abolished however much lawyers may crave
for unity and logic.
[Uncertainty and contradictions of legal theory.]
In the particular case under discussion medieval law is especially rich
in such historical clues. The law writers are trying hard to give a
construction of villainage on the basis of the Roman doctrine of
slavery, but their fabric gives way at every point. It would be hardly a
fair description to say that we find many survivals of an older state of
things and many indications of a new development. Everything seems in a
state of vacillation and fermentation during the thirteenth century. As
to the origin of the servile status the law of bastards gets inverted;
in the case of matrimony the father-rule is driving the mother-rule from
the ground; the influence of prescription is admitted by some lawyers
and rejected by others. As to the means whereby persons may issue out of
that condition, the views of Glanville and Bracton are diametrically
opposed, and there are still traces in practice of the notion that a
villain cannot buy his freedom and that he cannot be manumitted by the
lord himself in regard to third persons. In their treatment of services
in their reference to status the courts apply the two different tests of
certainty and of kind. In their treatment of tenure they still hesitate
between a complete denial of protection to villainage and the
recognition of it as a mode of holding which is protected by legal
remedies. And even when the chief lines are definitely drawn they only
disclose fundamental contradictions in all their crudeness.
In civil law, villains are disabled against their lords but evenly
matched against strangers; even against a lord legal protection is
lingering in the form of an action upon covenant and in the notion that
the villain's wainage should be secure. In criminal and in police law
villains are treated substantially as free persons: they have even a
share, although a subordinate one, in the organisation of justice. The
procedure in questions of status is characterised by outrageous
privileges given to the lord against a man in 'a villain nest,' and by
distinct favour shown to those out of the immediate range of action of
the lord. The law is quite as much against giving facilities to prove a
man's servitude as it is against granting that man any rights when once
his servitude has been established. The reconciliation of all these
contradictions and anomalies cannot be attempted on dogmatic grounds.
The law of villainage must not be constructed either on the assumption
of slavery, or on that of liberty, or on that of _colonatus_ or
ascription. It contains elements from each of these three conditions,
and it must be explained historically.
[Influence of lawyers.]
The material hitherto collected and discussed enables us to distinguish
different layers in its formation. To begin with, the influence of
lawyers must be taken into account. This is at once to be seen in the
treatment of distinctions and divisions. The Common Law, as it was
forming itself in the King's Court, certainly went far to smoothe down
the peculiarities of local custom. Even when such peculiarities were
legally recognised, as in the case of ancient demesne, the control and
still more the example of the Common Law Courts was making for
simplification and reducing them more or less to a generally accepted
standard. The influence of the lawyers was exactly similar in regard to
subdivisions on the vertical plane (if I may use the expression): for
these varieties of dependence get fused into general servitude, and in
this way classes widely different in their historical development are
brought together under the same name. The other side of this process of
simplification is shown where legal theory hardens and deepens the
divisions it acknowledges. In this way the chasm between liberty and
servitude increases as the notion of servitude gets broader. In order to
get sharp boundaries and clear definitions to go by, the lawyers are
actually driven to drop such traits of legal relations as are difficult
to manage with precision, however great their material importance, and
to give their whole attention to facts capable of being treated clearly.
This tendency may account for the ultimate victory of the quantitative
test of servitude over the qualitative one, or to put it more plainly,
of the test of certainty of services over the discussion of kind of
services. Altogether the tendency towards an artificial crystallisation
of the law cannot be overlooked.
[Roman law, Norman law, and royal jurisdiction.]
In the work of simplifying conditions artificially the lawyers had
several strong reagents at their disposal. The mighty influence of Roman
law has been often noticed, and there can be no doubt that it was
brought to bear on our subject to the prejudice of the peasantry and to
the extinction of their independent rights. It would not have been so
strong if many features of the vernacular law had not been brought half
way to meet it. Norman rules, it is well known, exercised a very potent
action on the forms of procedure[245]; but the substantive law of status
was treated very differently in Normandy and in England, and it is not
the influx of Norman notions which is important in our case, but the
impetus given by them to the development of the King's Courts. This
development, though connected with the practice of the Duchy, cannot be
described simply or primarily as Norman. Once the leaven had been
communicated, English lawyers did their own work with great independence
as well as ingenuity of thought, and the decision of the King's Court
was certainly a great force. I need not point out again to what extent
the law was fashioned by the writ procedure, but I would here recall to
attention the main fact, that the opposition between 'free' and 'unfree'
rested chiefly on the point of being protected or not being protected by
the jurisdiction of the King's Court.
[Social bias of legal theories.]
If we examine the action of lawyers as a whole, in order to trace out,
as it were, its social bias, we must come to the conclusion that it was
exercised first in one direction and then in the opposite one. The
refusal of jurisdiction may stand as the central fact in the movement in
favour of servitude, although that movement may be illustrated almost in
every department, even if one omits to take into account what may be
mere instances of bad temper or gross partiality. But the wave begins to
rise high in favour of liberty even in the thirteenth century. It does
not need great perspicuity to notice that, apart from any progress in
morals or ideas, apart from any growth of humanitarian notions, the law
was carried in this direction by that development of the State which
lays a claim to and upon its citizens, and by that development of social
intercourse which substitutes agreement for bondage. Is it strange that
the social evolution, as observed in this particular curve, does not
appear as a continuous _crescendo_, but as a wavy motion? I do not think
it can be strange, if one reflects that the period under discussion
embraces both the growth and the decay of feudalism, embraces, that is,
the growth of the principle of territorial power on the ruins of the
tribal system and also the disappearance of that principle before the
growing influence of the State.
[Influence of conquest.]
Indirectly we have had to consider the influence of feudalism, as it was
transmitted through the action of its lawyers. But it may be viewed in
its direct consequences, which are as manifest as they are important. In
England, feudalism in its definite shape is bound up with conquest[246],
and it is well known that, though very much hampered on the political
side by the royal power, it was exceptionally complete on the side of
private law by reason of its sudden, artificial, and enforced
introduction. One of the most important results of conquest from this
point of view was certainly the systematic way in which the subjection
of the peasantry was worked out. If we look for comparison to France as
the next neighbour of England and a country which has influenced
England, we shall find the same elements at work, but they combine in a
variety of modes according to provincial and local peculiarities.
Although the political power of the French baron is so much greater than
that of an English lord, the _roturier_ often keeps his distance from
the serf better than was the case in England. In France everything
depends upon the changing equilibrium of local forces and circumstances.
In England the Norman Conquest produced a compact estate of aristocracy
instead of the magnates of the continent, each of whom was strong or
weak according to the circumstances of his own particular case; it
produced Common Law and the King's Courts of Common Law; and it reduced
the peasantry to something like uniform condition by surrounding the
_liberi et legales homines_ with every kind of privilege. The national
colouring given by the _Dialogus de Scaccario_ to the social question of
the time is not without meaning in this light:--the peasants may be
regarded as the remnant of a conquered race, or as the issue of rebels
who have forfeited their rights.
[English feudalism.]
The feudal system once established produced certain effects quite apart
from the Conquest, effects which flowed from its own inherent
properties. The Conquest had cast free and unfree peasantry together
into the one mould of villainage; feudalism prevented villainage from
lapsing into slavery. I have shown in detail how the manor gives a
peculiar turn to personal subjection. Its action is perceivable in the
treatment of the origin of the servile status. The villain, however near
being a chattel, cannot be devised by will because he is considered as
an annex to the free tenement of the lord. The connexion with a manor
becomes the chief means of establishing and proving seisin of the
villain. On the other hand, in the trial of _status_, manorial
organisation led to the sharp distinction between persons in the power
of the lord and out of it. This fact touches the very essence of the
case. The more powerful the manor became, the less possible was it to
work out subjection on the lines of personal slavery. Without entering
into the economic part of the question for the present, merely from the
legal point of view it was a necessary consequence of the rise of a
local and territorial power that the working people under its sway were
subjected by means of its territorial organisation and within its
limited sphere of local action. Of course, the State upheld some of the
lord's rights even outside the limits of the manor, but these were only
a pale reflection of what took place within the manor, and they were
more difficult to enforce in proportion as the barriers between the
manors rose higher; it became very difficult for one lord to reclaim
runaways who were lying within the manor of another lord.
[Survivals of pre-feudal condition.]
If we remove those strata of the law of villainage which owe their
origin to the action of the feudal system and to the action of the
State, which rises on the ruins of the feudal system, we come upon
remnants of the pre-feudal condition. They are by no means few or
unimportant, and it is rather a wonder that so much should be preserved
notwithstanding the systematic work of conquest, feudalism, and State.
When I speak of pre-feudal condition I do not mean to say, of course,
that feudalism had not been in the course of formation before the Norman
Conquest. I merely wish to oppose a social order grounded on feudalism
to a social order which was only preparing for it and developing on a
different basis. The Conquest brought together the free and unfree. Our
survivals of the state of things before the Conquest group themselves
naturally in one direction, they are manifestations of the free element
which went into the constitution of villainage. It is not strange that
it should be so, because the servile element predominated in those parts
of the law which had got the upper hand and the official recognition. A
trait which goes further than the accepted law in the direction of
slavery is the difficulties which are put by Glanville in the way of
manumission. His statement practically amounts to a denial of the
possibility of manumission, and such a denial we cannot accept. His way
of treating the question may possibly be explained by old notions as to
the inability of a master to put a slave by a mere act of his will on
the same level with free men.
[Elements of freedom.]
However this may be, our survivals arrange themselves with this single
possible exception in the direction of freedom. Perhaps such facts as
the villain's capacity to take legal action against third persons, and
his position in the criminal and police law, ought not to be called
survivals. They are certain sides of the subject. They are indissolubly
allied to such features of the civil law as the occasional recognition
of villainage as a protected tenure, and the villain's admitted standing
against the lord when the lord had bound himself by covenant. In the
light of these facts villainage assumes an entirely different aspect
from that which legal theory tries to give it. Procedural disability
comes to the fore instead of personal debasement. A villain is to a
great extent in the power of his lord, not because he is his chattel,
but because the courts refuse him an action against the lord. He may
have rights recognised by morality and by custom, but he has no means to
enforce them; and he has no means to enforce them because feudalism
disables the State and prevents it from interfering. The political root
of the whole growth becomes apparent, and it is quite clear, on the one
hand, that liberation will depend to a great extent on the strengthening
of the State; and, on the other hand, that one must look for the origins
of enslavement to the political conditions before and after the
Conquest.
One undoubtedly encounters difficulties in tracing and grouping facts
with regard to those elements of freedom which appear in the law of
villainage. Sometimes it may not be easy to ascertain whether a
particular trait must be connected with legal progress making towards
modern times, or with the remnants of archaic institutions. As a matter
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[247], 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.
[Ancient demesne.]
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.
[Clues as to the condition of Saxon peasantry.]
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.
CHAPTER V.
THE SERVILE PEASANTRY OF MANORIAL RECORDS.
[Manorial documents.]
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[248]. 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[249]. In Herefordshire the
master was not bound to produce his serfs to answer criminal
charges[250]. 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.
[Terminological classification.]
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.
[Terms to indicate social standing.]
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 distinguished by Bracton are
covered by it. The common opposition is between _villanus_ and _libere
tenens_, not between _villanus_ and _liber homo_. It is not difficult to
explain such a phraseology in books compiled either in the immediate
interest of the lords or under their indirect influence, but it must
have necessarily led to encroachments and disputes: it has even become a
snare for later investigators, who have sometimes been led to consider
as one compact mass a population consisting of two different classes,
each with a separate history of its own. The Latin 'rusticus' is applied
in the same general way. It is less technical however, and occurs
chiefly in annals and other literary productions, for which it was
better suited by its classical derivation. But when it is used in
opposition to other terms, it stands exactly as _villanus_, that is to
say, it is contrasted with _libere tenens_[251].
[Villains personally unfree.]
The fundamental distinction of personal status has left some traces in
terminology. The Hundred Rolls, especially the Warwickshire one[252],
mention _servi_ very often. Sometimes the word is used exactly as
_villanus_ would be[253]. _Tenere in servitute_ and _tenere in
villenagio_ are equivalent[254]. But other instances show that _servus_
has also a special meaning. Cases where it occurs in an 'extent'
immediately after _villanus_, and possibly in opposition to it, are not
decisive[255]. They may be explained by the fact that the persons
engaged in drawing up a custumal, jotted down denominations of the
peasantry without comparing them carefully with what preceded. A
marginal note _servi_ would not be necessarily opposed to a _villani_
following it; it may only be a different name for the same thing. And it
may be noted that in the Hundred Rolls these names very often stand in
the margin, and not in the text. But such an explanation would be out of
place when both expressions are used in the same sentence. The
description of Ipsden in Oxfordshire has the following passage: _item
dictus R. de N. habet de proparte sua septem servos villanos_. (Rot.
Hundr. ii. 781, b: cf. 775, b, _Servi Custumarii_.) It is clear that it
was intended, not only to describe the general condition of the
peasantry, but to define more particularly their status. This
observation and the general meaning of the word will lead us to believe
that in many cases when it is used by itself, it implies personal
subjection.
The term _nativus_ has a similar sense. But the relation between it and
_villanus_ is not constant; sometimes this latter marks the genus, while
the former applies to a species; but sometimes they are used
interchangeably[256], and the feminine for villain is _nieve_
(_nativa_). But while _villanus_ is made to appear both in a wide and in
a restricted sense, and for this reason cannot be used as a special
qualification, _nativus_ has only the restricted sense suggesting
status[257]. In connection with other denominations _nativus_ is used
for the personally unfree[258]. When we find _nativus domini_, the
personal relation to the lord is especially noticed[259]. The sense
being such, no wonder that the nature of the tenure is sometimes
described in addition[260]. Of course, the primary meaning is, that a
person has been born in the power of the lord, and in this sense it is
opposed to the stranger--_forinsecus_, _extraneus_[261]. In this sense
again the Domesday of St. Paul's speaks of 'nativi a principio' in
Navestock[262]. But the fact of being born to the condition supposes
personal subjection, and this explains why _nativi_ are sometimes
mentioned in contrast with freemen[263], without any regard being paid
to the question of tenure. Natives, or villains born, had their
pedigrees as well as the most noble among the peers. Such pedigrees were
drawn up to prevent any fraudulent assertion as to freedom, and to guide
the lord in case he wanted to use the native's kin in prosecution of an
action _de nativo habendo_. One such pedigree preserved in the Record
Office is especially interesting, because it starts from some stranger,
_extraneus_[264], who came into the manor as a freeman, and whose
progeny lapses into personal villainage; apparently it is a case of
villainage by prescription.
[Free men holding villain land.]
The other subdivision of the class--freemen holding unfree
land[265]--has no special denomination. This deprives us of a very
important clue as to the composition of the peasantry, but we may gather
from the fact how very near both divisions must have stood to each other
in actual life. The free man holding in villainage had the right to go
away, while the native was legally bound to the lord; but it was
difficult for the one to leave land and homestead, and it was not
impossible for the other to fly from them, if he were ill-treated by his
lord or the steward. Even the fundamental distinction could not be drawn
very sharply in the practice of daily life, and in every other respect,
as to services, mode of holding, etc., there was no distinction. No
wonder that the common term _villanus_ is used quite broadly, and aims
at the tenure more than at personal status.
[Terms to indicate economic condition.]
Terms which have in view the general economic condition of the peasant,
vary a good deal according to localities. Even in private documents they
are on the whole less frequent than the terms of the first class, and
the Hundred Rolls use them but very rarely. It would be very wrong to
imply that they were not widely spread in practice. On the contrary,
their vernacular forms vouch for their vitality and their use in common
speech. But being vernacular and popular in origin, these terms cannot
obtain the uniformity and currency of literary names employed and
recognised by official authority. The vernacular equivalent for
_villanus_ seems to have been _niet_ or _neat_[266]. It points to the
regular cultivators of the arable, possessed of holdings of normal size
and performing the typical services of the manor[267]. The peasant's
condition is here regarded from the economical side, in the mutual
relation of tenure and work, not in the strictly legal sense, and men of
this category form the main stock of the manorial population. The
Rochester Custumal says[268] that neats are more free than cottagers,
and that they hold virgates. The superior degree of freedom thus
ascribed to them is certainly not to be taken in the legal sense, but is
merely a superiority in material condition. The contrast with cottagers
is a standing one[269], and, being the main population of the village,
_neats_ are treated sometimes as if they were the only people
there[270]. The name may be explained etymologically by the Anglo-Saxon
_geneat_, which in documents of the tenth and eleventh century means a
man using another person's land. The differences in application may be
discussed when we come to examine the Saxon evidence.
Another Saxon term--_gebúr_--has left its trace in the _burus_ and
_buriman_ of Norman records. The word does not occur very often, and
seems to have been applied in two different ways--to the chief villains
of the township in some places, and to the smaller tenantry, apparently
in confusion with the Norman _bordarius_, in some other[271]. The very
possibility of such a confusion shows that it was going out of common
use. On the other hand, the Danish equivalent _bondus_ is widely spread.
It is to be found constantly in the Danish counties[272]. The original
meaning is that of cultivator or 'husband'--the same in fact as that of
_gebúr_ and boor. Feudal records give curious testimony of the way in
which the word slid down into the 'bondage' of the present day. We see
it wavering, as it were, sometimes exchanging with _servus_ and
_villanus_, and sometimes opposed to them[273]. Another word of kindred
meaning, chiefly found in eastern districts, is _landsettus_, with the
corresponding term for the tenure[274]; this of course according to its
etymology simply means an occupier, a man sitting on land.
[Terms to indicate the nature of services.]
Several terms are found which have regard to the nature of services.
Agricultural work was the most common and burdensome expression of
economical subjection. Peasants who have to perform such services in
kind instead of paying rents for them are called _operarii_[275].
Another designation which may be found everywhere is _consuetudinarii_
or _custumarii_[276]. It points to customary services, which the people
were bound to perform. When such tenants are opposed to the villains,
they are probably free men holding in villainage by customary work[277].
As the name does not give any indication as to the importance of the
holding a qualification is sometimes added to it, which determines the
size of the tenement[278].
In many manors we find a group of tenants, possessed of small plots of
land for the service of following the demesne ploughs. These are called
_akermanni_ or _carucarii_[279], are mostly selected among the customary
holders, and enjoy an immunity from ordinary work as long as they have
to perform their special duty[280]. On some occasions the records
mention _gersumarii_, that is peasants who pay a _gersuma_, a fine for
marrying their daughters[281]. This payment being considered as the
badge of personal serfdom, the class must have consisted of men
personally unfree.
[Terms to indicate the size of the holding.]
Those names remain to be noticed which reflect the size of the holding.
In one of the manors belonging to St. Paul's Cathedral in London we find
_hidarii_[282]. This does not mean that every tenant held a whole hide.
On the contrary, they have each only a part of the hide, but their
plots are reckoned up into hides, and the services due from the whole
hide are stated. _Virgatarius_[283] is of very common occurrence,
because the virgate was considered as the normal holding of a peasant.
It is curious that in consequence the virgate is sometimes called simply
_terra_, and holders of virgates--_yerdlings_[284]. Peasants possessed
of half virgates are _halfyerdlings_ accordingly. The expressions 'a
full villain[285]' and 'half a villain' must be understood in the same
sense. They have nothing to do with rank, but aim merely at the size of
the farm and the quantity of services and rents. _Ferlingseti_ are to be
met with now and then in connexion with the _ferling_ or _ferdel_, the
fourth part of a virgate[286].
The constant denomination for those who have no part in the common
arable fields, but hold only crofts or small plots with their
homesteads, is 'cotters' (_cotsetle_, _cottagiarii_, _cottarii_[287],
etc.). They get opposed to villains as to owners of normal
holdings[288]. Exceptionally the term is used for those who have very
small holdings in the open fields. In this case the authorities
distinguish between greater and lesser cotters[289], between the owners
of a 'full cote' and of 'half a cote[290].' The _bordarii_, so
conspicuous in Domesday, and evidently representing small tenants of the
same kind as the cottagers, disappear almost entirely in later
times[291].
[Results as to terminology.]
We may start from this last observation in our general estimate of the
terminology. One might expect to find traces of very strong French
influence in this respect, if in any. Even if the tradition of facts had
not been interrupted by the Conquest, names were likely to be altered
for the convenience of the new upper class. And the Domesday Survey
really begins a new epoch in terminology by its use of _villani_ and
_bordarii_. But, curiously enough, only the first of these terms takes
root on English soil. Now it is not a word transplanted by the Conquest;
it was in use before the Conquest as the Latin equivalent of _ceorl_,
_geneat_, and probably _gebúr_. Its success in the thirteenth and
fourteenth centuries is a success of Latin, and not of French, of the
half-literary record language over conversational idioms, and not of
foreign over vernacular notions. The peculiarly French '_bordier_,' on
the other hand, gets misunderstood and eliminated. Looking to Saxon and
Danish terms, we find that they hold their ground tenaciously enough;
but still the one most prevalent before the Conquest--_ceorl_--
disappears entirely, and all the others taken together cannot balance
the diffusion of the 'villains.' The disappearance of _ceorl_ may be
accounted for by the important fact that it was primarily the
designation of a free man, and had not quite lost this sense even in
the time immediately before the Conquest. The spread of the Latin term
is characteristic enough in any case. It is well in keeping with a
historical development which, though it cannot be reduced to an
importation of foreign manners, was by no means a mere sequel to Saxon
history[292]. A new turn had been given towards centralisation and
organisation from above, and _villanus_, the Latin record term,
illustrates very aptly the remodelling of the lower stratum of society
by the influence of the curiously centralised English feudalism.
The position of the peasantry gets considered chiefly from the point of
view of the lord's interests, and the classification on the basis of
services comes naturally to the fore. The distribution of holdings is
also noticed, because services and rents are arranged according to them.
But the most important fact remains, that the whole system, though
admitting theoretically the difference between personal freedom and
personal subjection, works itself out into uniformity on the ground of
unfree tenure. Freemen holding in villainage and born villains get mixed
up under the same names. The fact has its two sides. On the one hand it
detracts from the original rights of free origin, on the other it
strengthens the element of order and legality in the relations between
lord and peasant. The peasants are _custumarii_ at the worst--they work
by custom, even if custom is regulated by the lord's power. In any case,
even a mere analysis of terminological distinctions leads to the
conclusion that the simplicity and rigidity of legal contrasts was
largely modified by the influence of historical tradition and practical
life.
[Rights of the lord.]
[Classification.]
Our next object must be to see in what shape the rights of the lord are
presented by manorial documents. All expressions of his power may be
considered under three different heads, as connected with one of the
three fundamental aspects of the manorial relation. There were customs
and services clearly derived from the _personal subjection of the
villain_, which had its historical root in slavery. Some burdens again
lay on the _land_, and not on the _person_. And finally, manorial
exactions could grow from the _political sway_ conferred by feudal
lordship. It may be difficult to distinguish in the concrete between
these several relations, and the constant tendency in practice must have
been undoubtedly directed towards mixing up the separate threads of
subjection. Still, a general survey of manorial rights has undoubtedly
to start from these fundamental distinctions.
[Sale of villains.]
There has been some debate on the question whether the lord could sell
his villains. It has been urged that we have no traces of such
transactions during the feudal period, and that therefore personal
serfdom did not exist even in law[293]. It can be pointed out, on the
other side, that deeds of sale conveying villains apart from their
tenements, although rare, actually exist. The usual form of
enfranchisement was a deed of sale, and it cannot be argued that this
treatment of manumission is a mere relic of former times, because both
the Frank and the Saxon manumissions of the preceding period assume a
different shape; they are not effected by sale. The existing evidence
entitles one to maintain that a villain could be lawfully sold, with all
his family, his _sequela_, but that in practice such transactions were
uncommon[294]. The fact is a most important one in itself; the whole
aspect of society and of its work would have been different if the
workman had been a saleable commodity passing easily from hand to hand.
Nothing of the kind is to be noticed in the medieval system. There is no
slave market, and no slave trade, nothing to be compared with what took
place in the slave states of North America, or even to the restricted
traffic in Russia before the emancipation. The reason is a curious one,
and forcibly suggested by a comparison between the cases when such trade
comes into being, and those when it does not. The essential condition
for commercial transfer is a protected market, and such a market existed
more or less in every case when men could be bought and sold. An
organised state of some kind, however slightly built, is necessary as a
shelter for such transfer. The feudal system proved more deficient in
this respect than very raw forms of early society, which make up for
deficiencies in State protection by the facilities of acquiring slaves
and punishing them. The landowner had enough political independence to
prevent the State from exercising an efficient control over the
dependent population, and for this very reason he had to rely on his own
force and influence to keep those dependents under his sway. Personal
dependence was locally limited, and not politically general, if one may
use the expression. It was easy for the villain to step out of the
precincts of bondage; it was all but impossible for the lord to treat
his man as a transferable chattel. The whole relation got to be
regulated more by internal conditions than by external pressure, by a
customary _modus vivendi_, and not by commercial and state-protected
competition. This explains why in some cases political progress meant a
temporary change for the worse, as in some parts of Germany and in
Russia: the State brought its extended influence to bear in favour of
dependence, and rendered commercial transactions possible by its
protection. In most cases, however, the influence of moral, economical,
and political conceptions made itself felt in the direction of freedom,
and we have seen already that in England legal doctrine created a
powerful check on the development of servitude by protecting the actual
possession of liberty, and throwing the burden of proof in questions of
status on the side contending against such liberty.
[Merchet.]
But not all the consequences of personal servitude could be removed in
the same way by the conditions of actual life. Of all manorial exactions
the most odious was incontestably the _merchetum_, a fine paid by the
villain for marrying his daughter[295]. It was considered as a note of
servile descent, and the man free by blood was supposed to be always
exempted from it, however debased his position in every other respect.
Our authorities often allude to this payment by the energetic expression
'buying one's blood' (servus de sanguine suo emendo). It seems at first
sight that one may safely take hold of this distinction in order to
trace the difference between the two component parts of the villain
class. In the status of the socman, developed from the law of Saxon
free-men, there was usually nothing of the kind. The _maritagium_ of
military tenure of course has nothing in common with it, being paid only
by the heiress of a fee, and resulting from the control of the military
lord over the land of his retainer. The _merchetum_ must be paid for
every one of the daughters, and even the granddaughters of a villain; it
had nothing to do with succession, and sprang from personal subjection.
When the bride married out of the power of the lord a new element was
brought to bear on the case: the lord was entitled to a special
compensation for the loss of a subject and of her progeny[296]. When the
case is mentioned in manorial documents, the fine gets heightened
accordingly, and sometimes it is even expressly stated that an arbitrary
payment will be exacted. The fine for incontinence naturally connects
itself with the merchet, and a Glastonbury manorial instruction enjoins
the Courts to present such cases to the bailiffs; the lord loses his
merchet from women who go wrong and do not get married[297].
[Origin and modifications of merchet.]
Such is the merchet of our extents and Court rolls. As I said, it has
great importance from the point of view of social history. Still it
would be wrong to consider it as an unfailing test of _status_. Although
it is often treated expressly as a note of serfdom[298], some facts
point to the conclusion that its history is a complex one. In the first
place this merchet fine occurs in the extents sporadically as it were.
The Hundred Rolls, for instance, mention it almost always in
Buckinghamshire, and in some hundreds of Cambridgeshire. In other
hundreds of this last county it is not mentioned. However much we lay to
the account of casual omissions of the compilers, they are not
sufficient to explain the general contrast. It would be preposterous to
infer that in the localities first mentioned the peasants were one and
all descended from slaves, and that in those other localities they were
one and all personally free. And so we are driven to the inference, that
different customs prevailed in this respect in places immediately
adjoining each other, and that not all the feudal serfs descended from
Saxon slaves paid merchet.
If, on the one hand, not all the serfs paid merchet, on the other there
is sufficient evidence to show that it was paid in some cases by free
people. A payment of this kind was exacted sometimes from free men in
villainage, and even from socage tenants. I shall have to speak of this
when treating of the free peasantry; I advert to the fact now in order
to show that the most characteristic test of personal servitude does not
cover the whole ground occupied by the class, and at the same time
spreads outside of its boundary.
This observation leads us to several others which are not devoid of
importance. As soon as the notion arose that personal servitude was
implied by the payment of merchet,--as soon as such a notion got
sanctioned by legal theory, the fine was extended in practice to cases
where it did not apply originally. We have direct testimony to the
effect that feudal lords introduced it on their lands in places where it
had never been paid[299], and one cannot help thinking that such
administrative acts as the survey of 1279-1280, the survey represented
by the Hundred Rolls, materially helped such encroachments. The juries
made their presentments in respect of large masses of peasantry, under
the preponderating influence of the gentry and without much chance for
the verification of particular instances. The description was not false
as a whole, but it was apt to throw different things into the same
mould, and to do it in the interest of landed proprietors. Again, the
variety of conditions in which we come across the merchet, leads us to
suppose that this term was extended through the medium of legal theory
to payments which differed from each other in their very essence: the
commutation of the 'jus primae noctis,' the compensation paid to the
lord for the loss of his bondwoman leaving the manor, and the fine for
marriage to be levied by the township or the hundred, were all thrown
together. Last, but not least, the vague application of this most
definite of social tests corroborates what has been already inferred
from terminology, namely, that the chief stress was laid in all these
relations, not on legal, but on economic distinctions. The
stratification of the class and the determination of the lord's rights
both show traits of legal status, but these traits lose in importance in
comparison with other features that have no legal meaning, or else they
spread over groups and relations which come from different quarters and
get bound up together only through economic conditions.
[Servile customs.]
The same observations hold good in regard to other customs which come to
be considered as implying personal servitude[300]. Merchet was the most
striking consequence of unfreedom, but manorial documents are wont to
connect it with several others. It is a common thing to say that a
villain by birth cannot marry his daughter without paying a fine, or
permit his son to take holy orders, or sell his calf or horse, that he
is bound to serve as a reeve, and that his youngest son succeeds to the
holding after his death[301]. This would be a more or less complete
enumeration, and I need not say that in particular cases sometimes one
and sometimes another item gets omitted. The various pieces do not fit
well together: the prohibition against selling animals is connected with
disabilities as to property, and not derived directly from the personal
tie[302]; as for the rule of succession, it testifies merely to the
fact that the so-called custom of Borough English was most widely spread
among the unfree class. The obligation of serving as a reeve or in any
other capacity is certainly derived from the power of a lord over the
person of his subject; he had it always at his discretion to take his
man away from the field, and to employ him at pleasure in his service.
Lastly, the provision that the villain may not allow his son to receive
holy orders stands on the same level as the provision that he may not
give his daughter in marriage outside the manor: either of these
prohibited transactions would have involved the loss of a subject.
[Control over the movements of the peasantry.]
We must place in the same category all measures intended to prevent
directly or indirectly the passage of the peasantry from one place to
the other. The instructions issued for the management of the Abbot of
Gloucester's estates absolutely forbid the practice of leaving the
lord's land without leave[303]. Still, emigration from the manor could
not be entirely stopped; from time to time the inhabitants wandered away
in order to look out for field-work elsewhere, or to take up some craft
or trade. In this case they had to pay a kind of poll-tax (chevagium),
which was, strictly speaking, not rent: very often it was very
insignificant in amount, and was replaced by a trifling payment in kind,
for instance, by the obligation to bring a capon once a year[304]. The
object was not so much to get money as to retain some hold over the
villain after he had succeeded in escaping from the lord's immediate
sway. There are no traces of a systematic attempt to tax and ransom the
work of dependents who have left the lord's territory--nothing to match
the thorough subjection in which they were held while in the manor. And
thus the lord was forced in his own interest to accept nominal payments,
to concentrate his whole attention on the subjects under his direct
control, and to prevent them as far as possible from moving and leaving
the land. In regulations for the management of estates we often find
several paragraphs which have this object in view. Sometimes the younger
men get leave to work outside the lord's possessions, but only while
their father remains at home and occupies a holding. Sometimes, again,
the licence is granted under the condition that the villain will remain
in one of his lord's tithings[305], an obligation which could be
fulfilled only if the peasant remained within easy reach of his
birth-place. Special care is taken not to allow the villains to buy free
land in order to claim their freedom on the strength of such free
possession[306]. Every kind of personal commendation to influential
people is also forbidden[307].
Notwithstanding all these rules and precepts, every page of the
documents testifies to frequent migrations from the manors in opposition
to the express will of the landowners. The surveys tell of serfs who
settle on strange land even in the vicinity of their former home[308].
It is by no means exceptional to find mention of enterprising landlords
drawing away the population from their neighbours' manors[309]. The
fugitive villain and the settler who comes from afar are a well-marked
feature of this feudal society[310].
[Limitations as to property.]
The limitations of rights of property have left as distinct traces in
the cartularies as the direct consequences of personal unfreedom. These
two matters are connected by the principle that everything acquired by
the slave is acquired by his master; and this principle finds both
expression and application in our documents. On the strength of it the
Abbot of Eynsham takes from his peasant land which had been bought by
the latter's father[311]. The case dates from the second half of the
fourteenth century, from a time when the social conflict had become
particularly acute in consequence of the Black Death, and of the
consequent attempts on the part of landlords to stretch their rights to
the utmost. But we have a case from the thirteenth century: the Prior of
Barnwell quotes the above-mentioned rule in support of a confiscation of
his villain's land[312]. In both instances the principle is laid down
expressly, but in other cases peasants were deprived of their property
without any formal explanation.
[Heriot.]
Of course, one must look upon such treatment as exceptional. But an
important and constant result of the general conception is to be found
in some of the regular feudal exactions. The villain has no property of
his own, and consequently he cannot transmit property. Strictly
speaking, there is no inheritance in villainage. As a matter of fact the
peasant's property did not get confiscated after his death, but the
heirs had to surrender a part of it, sometimes a very considerable one.
A difference is made between chattels and land. As to the first, which
are supposed to be supplied by the lord, the duty of the heir is
especially onerous. On the land of the Bishopric of Lichfield, for
instance, he has to give up as _heriot_ the best head of horned cattle,
all horses, the cart, the caldron, all woollen cloth, all the bacon, all
the swine except one, and all the swarms of bees[313]. The villains of
St. Alban's have to give the best head of cattle, and all house
furniture[314]. But in most cases only the best beast is taken, and if
there be no cattle on the tenement, then money has to be paid
instead[315]. The Cartulary of Battle is exceptionally lenient as to one
of the Abbey's manors[316]: it liberates from all duty of the kind those
who do not own any oxen. It sometimes happens, on the other hand, that
the payment is doubled; one beast is taken from the late occupier by way
of heriot, and the other from his widow for the life interest which is
conceded to her after the death of her husband[317]. Such 'free bench'
is regulated very differently by different customs. The most common
requirement is, that the widow may not marry again and must remain
chaste. In Kent the widow has a right to half the tenement for life,
even in case of a second marriage; in Oxfordshire, if she marries
without the lord's leave, she is left in possession only during a year
and a day[318].
In all these instances, when a second payment arises alongside of the
heriot, such a payment receives also the name of heriot because of this
resemblance, although the two dues are grounded on different claims. The
true heriot is akin in name and in character to the Saxon
'here-geat'--to the surrender of the military outfit supplied by the
chief to his follower. In feudal times and among peasants it is not the
war-horse and the armour that are meant, ox and harness take their
place, but the difference is not in the principle, and one may even
catch sometimes a glimpse of the process by which one custom shades off
into the other. On the possessions of St. Mary of Worcester, for
instance, we find the following enactment[319]: Each virgate has to give
three heriots, that is a horse, harness, and two oxen; the half-virgate
two heriots, that is a harnessed horse and one ox; other holdings give
either a horse or an ox. In such connexion the payment has nothing
servile about it, and simply appears as a consequence of the fact or
assumption that the landlord has provided his peasant with the necessary
outfit for agricultural work. And still the heriot is constantly
mentioned along with the merchet as a particularly base payment, and
though it might fall on the succession of a free man holding in
villainage, it is not commonly found on free land. The fact that this
old Saxon incident of dependence becomes in the feudal period a mark of
servile tenure, is a fact not without significance.
[Relief.]
It is otherwise with the _relief_ (relevium), the duty levied for the
resumption of the holding by the heir: it extends equally to military
tenure and to villainage. Although the heriot and relief get mixed up
now and then, their fundamental difference is realised by the great
majority of our documents and well grounded on principle. In one case
the chattels are concerned, in the other the tenement; one is primarily
a payment in kind, the other a money-fine. As to the amount of the
relief the same fluctuations may be traced as in the case of the heriot.
The most common thing is to give a year's rent; but in some instances
the heir must settle with the lord at the latter's will, or ransom the
land as a stranger, that is by a separate agreement in each single
case[320]. Fixed sums occur also, and they vary according to the size
and quality of the holding[321].
[Political rights.]
On the boundary between personal subjection and political subordination
we find the liability of the peasantry to pay _tallage_. It could be
equally deduced from the principle that a villain has nothing of his
own and may be exploited at will by his master or from the political
grant of the power of taxation to the representative of feudal
privilege. The payment of arbitrary tallage is held during the
thirteenth century to imply a servile status[322]. Such tallage at will
is not found very often in the documents, although the lord sometimes
retained his prerogative in this respect even when sanctioning the
customary forms of renders and services. Now and then it is mentioned
that the tallage is to be levied once a year[323], although the amount
remains uncertain.
As a holder of political power the lord has a right to inflict fines and
amercements on transgressors[324]. The Court-rolls are full of entries
about such payments, and it seems that one of the reasons why very great
stress was laid on attendance at the manorial Courts was connected with
the liability to all sorts of impositions that was enforced by means of
these gatherings. Tenants had to attend and to make presentments, to
elect officers, and to serve on juries; and in every case where there
was a default or an irregularity of any kind, fines flowed into the
lord's exchequer.
Lastly, we may classify under the head of political exactions,
monopolies and privileges such as those which were called _banalités_ in
France: they were imposed on the peasantry by the strong hand, although
there was no direct connexion between them and the exercise of any
particular function of the State. English medieval documents often refer
to the privileged mill, to which all the villains and sometimes the
freemen of the Soke were bound to bring their corn[325]; there is also
the manorial fold in which all the sheep of the township had to be
enclosed[326]. In the latter case the landlord profited by the dung for
manuring his land. Special attention was bestowed on supervising the
making of beer: Court-rolls constantly speak of persons fined for
brewing without licence. Every now and then we come across the wondrous
habit of collecting all the villagers on fixed days and making them
drink _Scotale_[327], that is ale supplied by the lord--for a good
price, of course.
[Villain tenure.]
Let us pass now to those aspects of manorial usage which are directly
connected with the mode of holding land. I may repeat what I said
before, that it would be out of the question to draw anything like a
hard and fast line between these different sides of one subject. How
intimately the personal relation may be bound up with the land may be
gathered, among other things, from the fact that there existed an oath
of fealty which in many places was obligatory on villains when entering
into possession of a holding. This oath, though connected with tenure,
bears also on the personal relation to the lord[328]. The oath of fealty
taken by the tenant in villainage differed from that taken by the
freeholder in that it contained the words, 'I will be justified by you
in body and goods'; and again the tenant in villainage, though he swore
fealty, did no homage; the relationship between him and his lord was not
a merely feudal relationship; the words, 'I become your man,' would have
been out of place, and there could be no thought of the lord kissing his
villain. But however intimate the connexion between both aspects of the
question, in principle the tenure was quite distinct from the status,
and could influence the condition of people who were personally free
from any taint of servility.
The legal definition of villainage as unfree tenure does not take into
account the services or economic quality of the tenure, and lays stress
barely on the precarious character of the holding[329]. The owner may
take it away when he pleases, and alter its condition at will. The
Abingdon Chronicle tells us[330] that before the time of Abbot Faritius
it was held lawful on the manors of the Abbey to drive the peasants away
from their tenements. The stewards and bailiffs often made use of this
right, if anybody gave them a fee out of greed, or out of spite against
the holder. Nor was there any settled mode of succession, and when a man
died, his wife and children were pitilessly thrown out of their home in
order to make place for perfect strangers. An end was put to such a
lawless condition of things by Faritius' reforms: he was very much in
want of money, and found it more expedient to substitute a settled
custom for the disorderly rule of the stewards. But he did not renounce
thereby any of his manorial rights: he only regulated their application.
The legal feature of base tenure--its insecurity--was not abolished on
the Abingdon estates. Our documents sometimes go the length of
explaining that particular plots are held without any sort of security
against dispossession. We find such remarks in the Warwickshire Hundred
Rolls for instance[331]. Sometimes the right is actually enforced: in
the Cartulary of Dunstable Priory we have the record of an exchange
between two landlords, in consequence of which the peasants were
removed from eight hides of land by one of the contracting parties[332].
[Control of the lord over the villain's land.]
The villain is in no way to be considered as the owner of the plot of
land he occupies; his power of disposing of it is stinted accordingly,
and he is subjected to constant control from the real owner. He cannot
fell timber; oaks and elms are reserved to the lord[333]. He cannot
change the cultivation of the land of his own accord; it would be out of
the question, for instance, to turn a garden-close into arable without
asking for a licence[334]. He is bound to keep hedges and ditches in
good order, and is generally responsible for any deterioration of his
holding. When he enters into possession of it, he has to find a pledge
that he will perform his duties in a satisfactory manner[335]. There can
be no thought of a person so situated alienating the land by an act of
his own will; he must surrender it into the hand of the lord, and the
latter grants it to the new holder after the payment of a fine. The same
kind of procedure is followed when a tenement is passed to the right
heir in the lifetime of the former possessor[336]. A default in paying
rents or in the performance of services, and any other transgression
against the interests of the lord, may lead to forfeiture[337]. The lord
takes also tenements into his hand in the way of escheat, in the absence
of heirs. Court-rolls constantly mention plots which have been resumed
in this way by the lord[338]. The homage has to report to the steward as
to all changes of occupation, and as to the measures which are thought
necessary to promote the interests of the landowner and of the
tenantry[339].
[Tenure by rent considered free; tenure by agricultural work, servile.]
As to the treatment of tenure in manorial documents, it is to be noticed
that a distinction which has no juridical meaning at all becomes all
important in practice. At common law, as has been said repeatedly, the
contrast between free land and servile land resolves itself into a
contrast between precarious occupation and proprietary right. This
contrast is noticed occasionally and as a matter of legal principle by
manorial documents[340] quite apart from the consequences which flow
from it, and of which I have been speaking just now. But in actual life
this fundamental feature is not very prominent; all stress is laid on
the distinction between land held by rent and land held by labour. In
the common phraseology of surveys and manorial rolls, the tenements on
which the rent prevails over labour are called 'free tenements,' and
those on the contrary which have to render labour services, bear the
names of 'servile holdings.' This fact is certainly not to be treated
lightly as a mere result of deficient classification or terminology. It
is a very important one and deserves to be investigated carefully.
In the ancient survey of Glastonbury Abbey, compiled in 1189, the
questions to be answered by the jury are enumerated in the following
way: 'Who holds freely, and how much, and by what services, and by whose
warrant, and from what time? Has land which ought to perform work been
turned into free land in the time of Bishop Henry, or afterwards? By
whose warrant was this change made, and to what extent is the land free?
Is the demesne land in cultivation, or is it given away in free tenure
or villain tenure; is such management profitable, or would it be better
if this land was taken back by the lord[341]?' The contrast is between
land which provides labour and land which does not; the former is
unfree, and villain tenure is the tenure of land held by such services;
portions of the demesne given away freely may eventually be reclaimed.
The scheme of the survey made in answer to these questions is entirely
in keeping with this mode of classification. All holdings are considered
exclusively from the economic point of view; the test of security and
precarious occupation is never applied. It is constantly noticed, on the
other hand, whether a plot pays rent or provides labour, whether it can
be transferred from one category into the other, on what conditions
demesne land has been given to peasants, and whether it is expedient to
alter them. Let us take the following case as an instance: John Clerk
had in the time of Bishop Henry one virgate in Domerham and holds it
now, and another virgate in Stapelham for ten shillings. When he farmed
the Domerham manor he left on his own authority the virgate in Stapelham
and took half a virgate in Domerham, as it was nearer. This half
virgate ought to work and is now free. And the virgate in Stapelham,
though it was free formerly, has to work now, after the exchange[342].
The opposition is quite clear, and entirely suited to the list of
questions addressed to the jury. The meaning of the terms _free_ and
_freedom_ is also brought out by the following example. Anderd Budde
holds half a virgate of demesne land, from the time of Bishop Henry, by
the same services as all who hold so much. The village has to render as
gift twenty-nine shillings and six pence. Six pence are wanting (to
complete the thirty shillings?) because Anderd holds more freely than
his ancestors used to[343].
Such phraseology is by no means restricted to one document or one
locality. In a Ramsey Cartulary we find the following entry in regard to
a Huntingdonshire manor: 'Of seven hides one is free; of the remaining
six two virgates pay rent. The holder pays with the villains; he pays
merchet and joins in the boon-work as the villains. The remaining five
hides and three virgates are in pure villainage[344].' The gradation is
somewhat more complex here than in the Somersetshire instance: besides
free land and working land we have a separate division for mixed cases.
But the foundation is the same in both documents. Earlier surveys of
Ramsey Abbey show the same classification of holding into free and
working virgates (_liberae_, _ad opus_[345]).
[Terra ad furcam et flagellum.]
In opposition to free service, that is rent, we find both the
_villenagium_[346] and the _terra consuetudinaria_ or _customaria_[347],
burdened with the usual rural work. Sometimes the document points out
that land has been freed or exempted from the common duties of the
village[348]; in regard to manorial work the village formed a compact
body. The notion which I have been explaining lies at the bottom of a
curious designation sometimes applied to base tenure in the earlier
documents of our period--_terra ad furcam et flagellum_[349], fleyland.
The Latin expression has been construed to mean land held by a person
under the lord's jurisdiction, under his gallows and his whip, but this
explanation is entirely false. The meaning is, that a base holding is
occupied by people who have to work with pitchfork and flail, and may-be
other instruments of agriculture[350], instead of simply paying rent. In
view of such a phraseology the same tenement could alternately be
considered as a free or a servile one, according to its changing
obligations[351]. Some surveys insert two parallel descriptions of
duties which are meant to fit both eventualities; when the land is _ad
opus_, it owes such and such services; when it is _ad censum_, it pays
so much rent. It must be added, that in a vast majority of cases
rent-paying land retains some remnants of services, and, _vice versâ_,
land subjected to village-work pays small rents[352]; the general
quality of the holding is made to depend on the prevailing character of
the duties.
The double sense in which the terms 'free tenure' and 'servile tenure'
are used should be specially noticed, because it lays bare the intimate
connexion between the formal divisions of feudal law and the conditions
of economic reality. I have laid stress on the contrast between the two
phraseologies, but, of course, they could not be in use at the same time
without depending more or less on each other. And it is not difficult to
see, that the legal is a modification of the economic use of terms, that
it reduces to one-sided simplicity those general facts which the
evidence of every day life puts before us in a loose and complex manner:
that land is really free which is not placed in a constant working
submission to the manor, in constant co-operation with other plots,
similarly arranged to help and to serve in the manor. However heavy the
rent, the land that pays it has become independent in point of
husbandry, its dependence appears as a matter of agreement, and not an
economic tie. When a tenement is for economic purposes subordinated to
the general management of the manor, there is almost of necessity a
degree of uncertainty in its tenure; it is a satellite whose motions are
controlled by the body round which it revolves. On the other hand, mere
payments in money look like the outcome of some sort of agreement, and
are naturally thought of as the result of contract.
[Custom in the exercise of manorial rights.]
Everything is subject to the will and pleasure of the lord; but this
will and pleasure does not find expression in any capricious
interference which would have wantonly destroyed order and rule in
village life. Under cover of this will, customs are forming themselves
which regulate the constantly recurring events of marriage, succession,
alienation, and the like. Curious combinations arise, which reflect
faithfully the complex elements of village life. An instruction for
stewards provides, for instance, that one person ought not to hold
several tenements; where such agglomerations exist already they ought to
be destroyed, _if it can be done conveniently and honestly_[353]. In one
of the manors of St. Paul of London the plots held by the ploughmen are
said to be resumable by the lord without any injury to hereditary
succession[354]. 'The rule of hereditary succession' is affirmed in
regard to normal holdings by this very exception. We find already the
phrase of which the royal courts availed themselves, when in later days
they extended their protection to this base tenure: the tenants hold 'by
the custom of the manor[355].' On the strength of such custom the life
of the unfree peasantry takes a shape closely resembling that of the
free population; transactions and rights spring into being which find
their exact parallel in the common law of the 'free and lawful' portion
of the community. Walter, a villain of St. Alban's, surrenders into the
hand of the monastery two curtilages, which are thereupon granted to
his daughter and her husband for life, upon condition that after their
death the land is to revert to Walter or to his heirs[356]. An Essex
villain claims succession by hereditary right, for himself and his
heirs[357]. I have already spoken of the 'free bench' to be found
equally on free and unfree land. In the same way there exists a parallel
to the so-called 'Curtesy of England' in the practice of manorial
courts; if the son inherits land from his mother during his father's
life, the latter enjoys possession during his life, or, it may be, only
until his son comes of age. In view of all this manorial documents have
to draw a distinction between tenements in villainage and land held at
the will of the lord, not in the general, but in the special and literal
sense of the term[358]. From a formal point of view, villain tenure by
custom obtained its specific character and its name from a symbolical
act performed in open Court by the steward; a rod was handed over to the
new holder by the lord's representative, and a corresponding entry made
in the roll of the Court. Hence the expression _tenere per virgam aut
per rotulum Curie_[359].
[Customary duties of the lord in regard to the peasantry.]
I ought perhaps to treat here of the different and interesting forms
assumed by services and rents as consequences of manorial organisation.
But I think that this subject will be understood better in another
connexion, namely as part of the agrarian system. One side only of it
has to be discussed here. Everywhere customs arise which defend the
villains from capricious extortions on the part of the lord and steward.
These customs mostly get 'inbreviated[360],' described in surveys and
cartularies, and although they have no legally binding power, they
certainly represent a great moral authority and are followed in most
cases.
A very characteristic expression of their influence may be found in the
fact that the manorial rolls very often describe in detail, not only
what the peasants are bound to do for the lord, but what the lord must
do for the peasants; especially when and how he is to feed them. Of
course, the origin of such usage cannot be traced to anything like a
right on the part of the villain; it comes from the landlord's
concessions and good-will, but grace loses its exceptional aspect in
this case and leads to a morally binding obligation[361]. When the
villain brings his yearly rent to his lord, the latter often invites him
to his table[362]. Very common is the practice of providing a meal for
the labourers on the _boon-days_, the days on which the whole population
of the village had to work for the lord in the most busy time of the
summer and autumn. Such boon-work was considered as a kind of surplus
demand; it exceeded the normal distribution of work. It is often
mentioned accordingly that such service is performed out of affection
for the lord, and sometimes it gets the eloquent name of 'love-bene.' In
proportion as the manorial administration gets more work done in this
exceptional manner, it becomes more and more gracious in regard to the
people. 'Dry requests' (siccae precariae) are followed by 'requests with
beer' (precariae cerevisiae). But it was not beer alone that could be
got on such days. Here is a description of the customs of Borle, a manor
belonging to Christ Church, Canterbury, in Essex. 'And let it be known
that when he, the villain, with other customers shall have done cutting
the hay on the meadow in Raneholm, they will receive by custom three
quarters of wheat for baking bread, and one ram of the price of eighteen
pence, and one pat of butter, and one piece of cheese of the second sort
from the lord's dairy, and salt, and oatmeal for cooking a stew, and all
the morning milk from all the cows in the dairy, and for every day a
load of hay. He may also take as much grass as he is able to lift on the
point of his scythe. And when the mown grass is carried away, he has a
right to one cart. And he is bound to carry sheaves, and for each
service of this kind he will receive one sheaf, called "mene-schef." And
whenever he is sent to carry anything with his cart, he shall have oats,
as usual, so much, namely, as he can thrice take with his hand[363].'
All such customs seem very strange and capricious at first sight. But it
is to be noticed that they occur in different forms everywhere, and that
they were by no means mere oddities; they became a real and sometimes a
heavy burden for the landlord. The authorities, the so-called
'Inquisitiones post mortem' especially, often strike a kind of balance
between the expense incurred and the value of the work performed. By the
end of the thirteenth century it is generally found that both ends are
just made to meet in cases of extra work attended by extra feeding, and
in some instances it is found that the lord has to lay out more than he
gets back[364]. The rise in the prices of commodities had rendered the
service unprofitable. No wonder that such 'boon-work' has to be given up
or to be commuted for money.
[Customs in the arrangement of agricultural work.]
These regularly recurring _liberationes_ or _liberaturae_ as they are
called, that is, meals and provender delivered to the labourers, have
their counterpart in the customary arrangement of the amount and kind of
services. I shall have to speak of their varieties and usual forms in
another connexion, but it must be noticed now, that these peasants
unprotected at law were under the rule of orderly custom. We have seen
already that the payments and duties which followed from the subjection
of the villains were for the most part fixed according to constant rules
in each particular case. The same may be said of the economical pressure
exercised in the shape of service and rent. It did not depend on the
caprice of the lord, although it depended theoretically on his will. The
villains of a manor in Leicestershire are not bound to work at weeding
the demesne fields unless by their own consent, that is by
agreement[365]. A baker belonging to Glastonbury Abbey is not bound to
carry loads unless a cart is provided him[366]. A survey of Ely mentions
that some peasants are made to keep a hedge in order as extra work and
without being fed. But it is added that the jurors of the village
protest against such an obligation, as heretofore unheard of[367]. All
these customs and limitations may, of course, be broken and slighted by
the lord, but such violent action on his part will be considered as
gross injustice, and may lead to consequences unpleasant for him--to
riots and desertion.
It is curious that the influence of custom makes itself felt slowly but
surely among the most debased of the villains. The Oxfordshire Hundred
Roll treats for instance of the _servi_ of Swincombe. They pay merchet;
if any of them dies without making his will the whole of his moveable
property falls to the lord. They are indeed degraded. And still the
lord does not tallage them at pleasure--they are secure in the
possession of their waynage (_salvo contenemento_)[368].
We may sum up the results already obtained by our analysis of manorial
documents in the following propositions:--
1. The terminology of the feudal period and the treatment of tenure in
actual life testify to the fact that the chief stress lay more on tenure
than on status, more on economical condition than on legal distinctions.
2. The subdivisions of the servile class and the varieties of service
and custom show that villainage was a complex mould into which several
heterogeneous elements had been fused.
3. The life of the villain is chiefly dependent on custom, which is the
great characteristic of medieval relations, and which stands in sharp
contrast with slavery on the one hand and with freedom on the other.
CHAPTER VI.
FREE PEASANTRY.
I hope the heading of this chapter may not be misunderstood. It would be
difficult to speak of free peasantry in the modern sense at the time
with which we are now dealing. Some kind or form of dependence often
clings even to those who occupy the best place among villagers as
recognised free tenants, and in most cases we have a very strong
infusion of subjection in the life of otherwise privileged peasants. But
if we keep to the main distinctions, and to the contrast which the
authorities themselves draw between the component elements of the
peasant class, its great bulk will arrange itself into two groups: the
larger one will consist of those ordinarily designated as _villains_; a
smaller, but by no means an insignificant or scanty one, will present
itself as _free_, more or less protected by law, and more or less
independent of the bidding of the lord and his steward. There is no
break between the two groups; one status runs continuously into the
other, and it may be difficult to distinguish between the intermediate
shades; but the fundamental difference of conception is clearly
noticeable as soon as we come to look at the whole, and it is not only
noticeable to us but was noticed by the contemporary documents.
[General condition of England.]
In very many cases we are actually enabled to see how freedom and legal
security gradually emerge from subjection. One of the great movements in
the social life of the thirteenth and fourteenth centuries is the
movement towards the commutation of services for money rents. In every
survey we find a certain number of persons who now pay money, whereas
they used to do work, and who have thus emancipated themselves from the
most onerous form of subjection[369]. In the older documents it is
commonly specified that the lord may revert to the old system, give up
the rents, and enforce the services[370]. In later documents this
provision disappears, having become obsolete, and there is only a
mention of certain sums of money. The whole process, which has left such
distinct traces in the authorities, is easily explained by England's
economic condition at that time. Two important factors co-operated to
give the country an exceptionally privileged position. England was the
only country in Europe with a firmly constituted government. The Norman
Conquest had powerfully worked in the sense of social feudalism, but it
had arrested the disruptive tendencies of political feudalism. The
opposition between the two races, the necessity for both to keep
together, the complexity of political questions which arose from
conquest and settlement on the one hand, from the intercourse with
Normandy and France on the other,--all these agencies working together
account for a remarkable intensity of action on the part of the
centripetal forces of society, if I may use the expression: there was in
England a constant tendency towards the concentration and organisation
of political power in sharp contrast with the rest of Europe where the
state had fallen a prey to local and private interests. One of the
external results of such a condition was the growth of a royal power
supported by the sympathy of the lower English-born classes, but
arranging society by the help of Norman principles of fiscal
administration. Not less momentous was the formation of an aristocracy
which was compelled to act as a class instead of acting as a mere
collection of individuals each striving for his own particular
advantage; as a class it had to reckon with, and sometimes represent,
the interests and requirements of other classes. In all these respects
England was much ahead of Germany, where tribal divisions were more
powerful than national unity, and the state had to form itself on feudal
foundations in opposition to a cosmopolitan Imperial power; it was not
less in advance of France, where the work of unification, egotistically
undertaken by the king, had hardly begun to get the upper hand in its
conflict with local dynasties; not less in advance of Italy, so well
situated for economic progress, but politically wrecked by its unhappy
connexion with Germany, the anti-national influence of the Papacy, and
the one-sided development of municipal institutions. By reason of its
political advantages England had the start of other European countries
by a whole century and even by two centuries. The 'silver streak' acted
already as a protection against foreign inroads, the existence of a
central power insured civil order, intercourse between the different
parts of the island opened outlets to trade, and reacted favourably on
the exchange of commodities and the circulation of money.
Another set of causes operated in close alliance with these political
influences. The position of England in relation to the European market
was from the first an advantageous one. Besides the natural development
of seafaring pursuits which lead to international trade, and always tend
to quicken the economic progress, there were two special reasons to
account for a speedy movement in the new direction: the woollen trade
with Flanders begins to rise in the twelfth century, and this is the
most important commercial feature in the life of North-Western Europe;
then again, the possession of Normandy and the occupation of Aquitaine
and other provinces of France by the English opened markets and roads
for a very brisk commercial intercourse with the Continent. As an
outcome of all these political and economical conditions we find the
England of the thirteenth century undoubtedly moving from _natural
husbandry_ to the _money-system_.
[Commutation.]
The consequences are to be seen on every side in the arrangements of
state and society. The means of government were modified by the economic
change. Hired troops took the place of feudal levies; kings easily
renounced the military service of their tenants and took scutages which
give them the means of keeping submissive and well-drilled soldiers. The
same process took place all through the country on the land of secular
and ecclesiastical lords. They all preferred taking money which is so
readily spent and so easy to keep, which may transform itself equally
well into gorgeous pageants and into capital for carrying on work,
instead of exacting old-fashioned unwieldly ploughings and reapings or
equally clumsy rents in kind.
On the other hand, the peasants were equally anxious to get out of the
customary system: through its organisation of labour it involved
necessarily many annoyances, petty exactions and coercion; it involved a
great waste of time and energy. The landlord gained by the change,
because he received an economic instrument of greater efficiency; the
peasant gained because he got rid of personal subjection to control;
both gained; for a whole system of administration, a whole class of
administrators, stewards, bailiffs, reeves, a whole mass of cumbrous
accounts and archaic procedure became unnecessary.
In reality the peasantry gained much more than the lord. Just because
money rents displaced the ploughings and reapings very gradually, they
assumed the most important characteristic of these latter--their
customary uniformity; tradition kept them at a certain level which it
was very difficult to disturb, even when the interests of the lord and
the conditions of the time had altered a great deal. Prices fluctuate
and rise gradually, the buying strength of money gets lowered little by
little, but customary rents remain much the same as they were before.
Thus in process of time the balance gets altered for the benefit of the
rent payer. I do not mean to say that such views and such facts were in
full operation from the very beginning: one of the chief reasons for
holding the Glastonbury inquest of 1189 was the wish to ascertain
whether the rents actually corresponded to the value of the plots, and
to make the necessary modifications. But such fresh assessments were
very rare, it was difficult to carry them into practice, and the general
tendency was distinctly towards a stability of customary rents.
[Social results of commutation.]
The whole process has a social and not merely an economical meaning.
Commutation, even when it was restricted to agricultural services,
certainly tended to weaken the hold of the lord on his men. Personal
interference was excluded by it, the manorial relation resolved itself
into a practice of paying certain dues once or several times a year; the
peasant ceased to be a tool in the husbandry arrangements of his master.
The change made itself especially felt when the commutation took place
in regard to entire villages[371]: the new arrangement developed into
the custom of a locality, and gathered strength by the number of
individuals concerned in it, and the cohesion of the group. In order not
to lose all power in such a township, the lords usually reserved some
cases for special interference and stipulated that some services should
still be rendered in kind[372].
Again, the conversion of services into rents did not always present
itself merely in the form just described: it was not always effected by
the mere will of the lord, without any legally binding acts. Commutation
gave rise to actual agreements which came more or less under the notice
of the law. We constantly find in the Hundred Rolls and in the
Cartularies that villains are holding land by written covenant. In this
case they always pay rent. Sometimes a villain, or a whole township,
gets emancipated from certain duties by charter[373], and the
infringement of such an instrument would have given the villains a
standing ground for pleading against the lord. It happened from time to
time that bondmen took advantage of such deeds to claim their liberty,
and to prove that the lord had entered into agreement with them as with
free people[374]. To prevent such misconstruction the lord very often
guards expressly against it, and inserts a provision to say that the
agreement is not to be construed against his rights and in favour of
personal freedom[375].
[Molmen.]
[Improvement of condition.]
The influence of commutation makes itself felt in the growth of a number
of social groups which arrange themselves between the free and the
servile tenantry without fitting exactly into either class. Our manorial
authorities often mention mol-land and mol-men[376]. The description of
their obligations always points one way: they are rent-paying tenants
who may be bound to some extra work, but who are very definitely
distinguished from the 'custumarii,' the great mass of peasants who
render labour services[377]. Kentish documents use 'mala' or 'mal' for
a particular species of rent, and explain the term as a payment in
commutation of servile customs[378]. In this sense it is sometimes
opposed to _gafol_ or _gable_--the old Saxon rent in money or in kind,
this last being considered as having been laid on the holding from all
time, and not as the result of a commutation[379]. Etymologically there
is reason to believe that the term _mal_ is of Danish origin[380], and
the meaning has been kept in practice by the Scotch dialect[381]. What
immediately concerns our present purpose is, that the word mal-men or
mol-men is commonly used in the feudal period for villains who have been
released from most of their services by the lord on condition of paying
certain rents. Legally they ought to remain in their former condition,
because no formal emancipation has taken place; but the economical
change reacts on their status, and the manorial documents show clearly
how the whole class gradually gathers importance and obtains a firmer
footing than was strictly consistent with its servile origin[382].
In the Bury St. Edmund's case just quoted in a foot-note the
fundamental principle of servility is stated emphatically, but the
statement was occasioned by gradual encroachments on the part of the
molmen, who were evidently becoming hardly distinguishable from
freeholders[383]. And in many Cartularies we find these molmen actually
enumerated with the freeholders, a very striking fact, because the clear
interest of the lord was to keep the two classes asunder, and the
process of making a manorial 'extent' and classifying the tenants must
have been under his control. As a matter of fact, the village juries
were independent enough to make their presentments more in accordance
with custom than in accordance with the lord's interests. In a
transcript of a register of the priory of Eye in Suffolk, which seems to
have been compiled at the time of Edward I, the molmen are distinguished
from villains in a very remarkable manner as regards the rule of
inheritance, Borough English being considered as the servile mode, while
primogeniture is restricted to those holding mol-land[384]. Borough
English was very widely held in medieval England to imply servile
occupation of land[385], and the privilege enjoyed by molmen in this
case shows that they were actually rising above the general condition of
villainage, the economical peculiarities of their position affording a
stepping-stone, as it were, towards the improvement of their legal
status. It is especially to be noticed, that in this instance we have to
reckon with a material difference of custom, and not merely with a
vacillating terminology or a general and indefinite improvement in
position. An interesting attempt at an accurate classification of this
and other kinds of tenantry is displayed by an inquisition of 19 Edward
I preserved at the Record Office. The following subdivisions are
enumerated therein:--
Liberi tenentes per cartam.
Liberi tenentes qui vocantur fresokemen.
Sokemanni qui vocantur molmen.
Custumarii qui vocantur werkmen.
Consuetudinarii tenentes 4 acras terre.
Consuetudinarii tenentes 2 acras terre[386].
The difference between molmen and workmen lies, of course, in the fact
that the first pay rent and the second perform week-work. But what is
more, the molmen are ranged among the sokemen, and this supposes a
certainty of tenure and service not enjoyed by the villains. In this way
the intermediate class, though of servile origin, connects itself with
the free tenantry.
[Censuarii and gavelmen.]
The same group appears in manorial documents under the name of
_censuarii_[387]. Both terms interchange, and we find the same
fluctuation between free and servile condition in regard to the
_censuarii_ as in regard to _molmen_. The thirteenth-century extent of
the manor of Broughton, belonging to the Abbey of Ramsey in
Huntingdonshire, when compared with Domesday, shows clearly the origin
of the group and the progress which the peasantry had made in two
hundred years. The Domesday description mentions ten sokemen and twenty
villains; the thirteenth-century Cartulary speaks in one place of
_liberi_ and _villani_, sets out the services due from the latter, but
says that the Abbot can 'ponere omnia opera ad censum;' while in another
place it speaks as though the whole were held by _liberi et
censuarii_[388].
A similar condition is indicated by the term _gavelmanni_, which occurs
sometimes, although not so often as either of the designations just
mentioned[389]. It comes evidently from _gafol_ or _gafel_, and applies
to rent-paying people. It ought to be noticed, however, that if we
follow the distinction suggested by the Kentish documents, there would
be an important difference in the meaning. Rent need not always appear
as a result of commutation; it may be an original incident of the
tenure, and there are facts enough to show that lands were held by rent
in opposition to service even in early Saxon time. Should _mal_ be taken
as a commutation rent, and _gafol_ strictly in the sense of original
rent, the gavelmen would present an interesting variation of social
grouping as the progeny of ancient rent-holding peasantry. I do not
think, however, that we are entitled to press terminological
distinctions so closely in the feudal period, and I should never enter a
protest against the assumption that most gavelmen were distinguished
from molmen only by name, and in fact originated in the same process of
commutation. But, granting this, we have to grant something else. _Vice
versa_, it is very probable indeed that the groups of _censuarii_ and
_molmen_ are not to be taken exclusively as the outcome of commutation.
If _gafol_ gets to be rather indistinct in its meaning, so does _mal_,
and as to _census_, there is nothing to show whether it arises in
consequence of commutation or of original agreement. And so the Kentish
distinction, even if not carried out systematically, opens a prospect
which may modify considerably the characteristic of the status on which
I have been insisting till now. Commutation was undoubtedly a most
powerful agency in the process of emancipation; our authorities are very
ready to supply us with material in regard to its working, and I do not
think that anybody will dispute the intimate connexion between the
social divisions under discussion and the transition from labour
services to rent. Yet a money rent need not be in every case the result
of a commutation of labour services, although such may be its origin in
most cases. We have at least to admit the possibility and probability of
another pedigree of rent-paying peasants. They may come from an old
stock of people whose immemorial custom has been to pay rent in money or
in kind, and who have always remained more or less _free_ from base
labour. This we should have to consider as at all events a theoretic
possibility, even if we restricted our study to the terminology
connected with rent; though it would hardly give sufficient footing for
definite conclusions. But there are groups among the peasantry whose
history is less doubtful.
[Hundredarii.]
There are at the British Museum two most curious Surveys of the
possessions of Ely Minster, one drawn up in 1222 and the other in
1277[390]. In some of the manors described we find tenants called
'hundredarii.' Their duties vary a good deal, but the peculiarity which
groups them into a special division and gives them their name is the
suit of court they owe to the hundred[391]. And although the name does
not occur often even in the Ely Surveys, and is very rare indeed
elsewhere[392], the thing is quite common. The village has to be
represented in the hundred court either by the lord of the manor, or by
the steward, or by the reeve, the priest, and four men[393]. The same
people have to attend the County Court and to meet the King's justices
when they are holding an eyre[394]. It is not a necessary consequence,
of course, that certain particular holdings should be burdened with the
special duty of sending representatives to these meetings, but it is
quite in keeping with the general tendency of the time that it should be
so; and indeed one finds everywhere that some of the tenants, even if
not called 'hundredarii,' are singled out from the rest to 'defend' the
township at hundred and shire moots[395]. They are exempted from other
services in regard to this 'external,' this 'forinsec' duty, which was
considered as by no means a light one[396].
[Hundredors as villains.]
And now as to their status. The obligation to send the reeve and four
men is enforced all through England, and for this reason it is _prima
facie_ impossible that it should be performed everywhere by freeholders
in _the usual sense of the word_. There can be no doubt that in many, if
not in most, places the feudal organisation of society afforded little
room for a considerable class of freeholding peasants or yeomen[397].
If every township in the realm had to attend particular judicial
meetings, to perform service for the king, by means of five
representatives, these could not but be selected largely from among the
villain class. The part played by these representatives in the Courts
was entirely in keeping with their subordinate position. They were not
reckoned among the 'free and lawful' men acting as judges or assessors
and deciding the questions at issue. They had only to make presentments
and to give testimony on oath when required to do so. The opposition is
a very marked one, and speaks of itself against the assumption that the
five men from the township were on an equal standing with the
freeholders[398]. Again, four of these five were in many cases
especially bound by their tenure to attend the meetings, and the reeve
came by virtue of his office, but he is named first, and it does not
seem likely that the leader should be considered as of lower degree than
the followers. Now the obligation to serve as reeve was taken as a mark
of villainage. All these facts lead one forcibly to the conclusion that
the hundredors of our documents represent the village people at large,
and the villains first of all, because this class was most numerous in
the village. This does not mean, of course, that they were all
personally unfree: we know already, that the law of tenure was of more
importance in such questions than personal status[399]. It does not even
mean that the hundredors were necessarily holding in villainage: small
freeholders may have appeared among them. But the institution could not
rest on the basis of legal freehold if it was to represent the great
bulk of the peasantry in the townships.
[Hundredors as free tenants.]
This seems obvious and definite enough, but our inquiry would be
incomplete and misleading if it were to stop here. We have in this
instance one of those curious contradictions between two
well-established sets of facts which are especially precious to the
investigator because they lead him while seeking their solution to
inferences far beyond the material under immediate examination. In one
sense the reeve and the four men, the hundredors, seem villains and not
freeholders. In another they seem freeholders and not villains. Their
tenure by the 'sergeanty' of attending hundreds and shires ranks again
and again with freehold and in opposition to base tenure[400].
Originally the four men were made to go not only with the reeve but with
the priest; and if the reeve was considered in feudal times as unfree,
the priest, the 'mass-thane,' was always considered as free[401]. It is
to be noticed that the attendance of the priest fell into abeyance in
process of time, but that it was not less necessary for the
representation of the township according to the ancient constitution of
the hundred than the attendance of the reeve. This last fact is of great
importance because it excludes an explanation which would otherwise look
plausible enough. Does it not seem at first sight that the case of the
hundredors is simply a case of exemption and exactly on a parallel with
the commutation of servile obligations for money? We have seen that
villains discharged from the most onerous and opprobrious duties of
their class rise at once in social standing, and mix up with the smaller
freeholders. Hundredors are relieved from these same base services in
order that they may perform their special work, and this may possibly be
taken as the origin of their freedom. Should we look at the facts in
this way, the classification of this class of tenants as free would
proceed from a lax use of the term and their privileges would have to be
regarded as an innovation. The presence of the priest warns us that we
have to reckon in the case with a survival, with an element of tradition
and not of mere innovation. And it is not only the presence of the
priest that points this way.
[The Hundred Courts.]
At first sight the line seems drawn very sharply between the reeve and
the four men on the one hand, and the freehold suitors of the hundred
court on the other: while these last have to judge and to decide, the
first only make presentments. But the distinction, though very clear in
later times, is by no means to be relied upon even in the thirteenth
century. In Britton's account of the sheriff's tourn the two bodies,
though provided with different functions, are taken as constituted from
the same class: 'the free landowners of the hundred are summoned and the
first step is to cause twelve _of them_ to swear that they will make
presentment according to the articles. Afterwards the _rest_ shall be
sworn by dozens and by townships, that they will make lawful presentment
to the _first twelve jurors_[402].' The wording of the passage certainly
leads one to suppose that both sets of jurors are taken from the
freeholder class, and the difference only lies in the fact that some are
selected to act as individuals, and the rest to do so by representation.
The Assize of Clarendon, which Mr. Maitland has shown to be at the
origin of the sheriff's tourn[403], will only strengthen the inference
that the two bodies were intended to belong to the same free class: the
inquiry, says the Assize, shall be made by twelve of the most lawful
men of the county, and by four of the most lawful men of every township.
What is there in these words to show that the two sets were to be taken
from different classes? And does not the expression 'lawful,' extending
to both sets, point to people who are 'worthy of their law,' that is to
free men? The Assize of Clarendon and the constitution of the tourn are
especially interesting because they give a new bearing to an old
institution: both divisions of the population which they have in view
appear in the ordinary hundred and county court, and in the 'law day' of
the 'great' hundred instituted for the view of frankpledge. In the
ordinary court the lord, his steward, and the reeve, priest, and four
men, interchange, according to the clear statement of Leg. Henrici I. c.
7, that is to say, the vill is to be represented either by the lord, or
by his steward, or again by the six men just mentioned. They are not
called out as representing different classes and interests, but as
representing the same territorial unity. If the landlord does not attend
personally or by his personal representative, the steward, then six men
from the township attend in his place. The question arises naturally,
where is one to look for the small freeholders in the enactment? However
much we may restrict their probable number, their existence cannot be
simply denied or disregarded. It does not seem likely that they were
treated as landlords (terrarum domini), and one can hardly escape the
inference that they are included in the population of the township,
which appears through the medium of the six hundredors: another hint
that the class division underlying the whole structure did not coincide
with the feudal opposition between freeholder and villain. Again, in the
great hundred for the view of frankpledge, which is distinguished from
the ordinary hundred by fuller attendance, and not by any fundamental
difference in constitution, all men are to appear who are 'free and
worthy of their wer and their wite[404]:' this expression seems an
equivalent to the 'free and lawful' men of other cases, and at the same
time it includes distinctly the great bulk of the villain population as
personally free.
[Results as to hundredors.]
I have not been able, in the present instance, to keep clear of the
evidence belonging to the intermediate period between the Saxon and the
feudal arrangements of society; this deviation from the general rule,
according to which such evidence is to be discussed separately and in
connexion with the Conquest, was unavoidable in our case, because it is
only in the light of the laws of Henry I that some important feudal
facts can be understood. In a trial as to suit of court between the
Abbot of Glastonbury and two lay lords, the defendants plead that they
are bound to appear at the Abbot's hundred court personally or by
attorney only on the two law-days, whereas for the judgment of thieves
their freemen, their reeves and ministers have to attend in order to
take part in the judgment[405]. It is clearly a case of substitution,
like the one mentioned in Leg. Henrici, c. 7, and the point is, that the
representatives of the fee are designated as reeves and freemen.
Altogether the two contradictory aspects in which the hundredors are
made to appear can hardly be explained otherwise than on the assumption
of a fluctuation between the conception of the hundred as of an assembly
of freemen, and its treatment under the influence of feudal notions as
to social divisions. In one sense the hundredors are villains: they come
from the vill, represent the bulk of its population, which consists of
villains, and are gradually put on a different footing from the greater
people present. In another sense they are free men, and even treated as
freeholders, because they form part of a communal institution intended
to include the free class and to exclude the servile class[406]. If
society had been arranged consistently on the feudal basis, there would
have been no room for the representation of the vill instead of the
manor, for the representation of the vill now by the lord and now by a
deputation of peasants, for a terminology which appears to confuse or
else to neglect the distinction between free and servile holding. As it
is, the intricate constitution of the hundred, although largely modified
and differentiated by later law, although cut up as it were by the
feudal principle of territorial service, looks still in the main as an
organisation based on the freedom of the mass of the people[407]. The
free people had to attend virtually, if not actually, and a series of
contradictions sprang up from the attempt to apply this principle to a
legal state which had almost eliminated the notion of freedom in its
treatment of peasantry on villain land. As in these feudal relations all
stress lay on tenure and not on status, the manorial documents seem to
raise the hundredors almost or quite to the rank of freeholders,
although in strict law they may have been villains. The net results seem
to be: (1) that the administrative constitution of hundred and county
is derived from a social system which did not recognise the feudal
opposition between freeholder and villain; (2) that we must look upon
feudal villainage as representing to a large extent a population
originally free; (3) that this original freedom was not simply one of
personal status, but actually influenced the conception of tenure even
in later days[408].
[Socmen.]
If in manorial documents these 'hundredors' occupy as it were an
ambiguous position, the same may be said of another and a very important
class--the _socmen_. The socage tenure has had a very curious
terminological history. Everybody knows that it appears in Domesday as a
local peculiarity of Danish districts; in modern law it came to be a
general name for any freehold that was neither knight service,
frankalmoign, nor grand sergeanty. It became in fact the normal and
typical free tenure, and as such it was treated by the Act of Charles II
abolishing military tenure. Long before this--even in the thirteenth
century--'free socage' was the name of a freehold tenure fully protected
by the King's Courts. Very great men occasionally held land in free
socage (per liberum socagium); they even held of the King in chief by
free socage, and the tenure had many advantages, since it was free from
the burdensome incidents of wardship and marriage. But no one would have
called these men socmen (sokemanni, socomanni). On the other hand, the
socmen, free socmen, were to be found all over England and not in the
Danish country only. It is of the tenure of these socmen that we have to
speak now. In a trial of Edward the First's time the counsel distinguish
three manners of persons--free men, villains, and socmen. These last are
said to occupy an intermediate position, because they are as _statu
liberi_ in regard to their lords[409]. The passage occurs in a case
relating to ancient demesne, but the statement is made quite broadly,
and the term 'socmen' is used without any qualification. As there were
many socmen outside the King's possessions on the land of lay and
spiritual lords, such usage may be taken as proof that the position of
all these people was more or less identical. And so in our inquiry as to
the characteristic traits of socage generally we may start from the
ancient demesne. Further, we see that the socman's tenure is
distinguished from free tenure, socmen from freeholders. In the law
books of the time the free but non-military tenure has to be
characterised not merely as socage, but as _free_ socage: this fact will
give us a second clue in analysing the condition.
[Charter and communal testimony.]
There are two leading features in ancient demesne socage: it is certain
in tenure and service, and it is held by the custom of the manor and not
by feoffment. The certainty of the tenure severs the class of socmen
from the villains, and is to be found as well in the case of socmen
outside the crown demesne as in the case of socmen on the crown demesne.
What is to be said of the second trait? It seems especially worthy of
notice, because it cannot be said to belong to freehold generally. As to
its existence on ancient demesne land I have already had occasion to
speak, and it can hardly be doubted. I will just recall to the reader's
mind the fundamental facts: that the 'little writ of right' was to
insure justice according to the custom of the manor, and that our
documents distinguish in as many words between the customary admittance
of the socman and the feoffment of the freeholder. This means, that in
case of litigation the one had warranty and charter to lean upon, while
the other had to appeal to the communal testimony of his fellow-suitors
in the court of the manor, and in later days to an entry on the
court-roll. Freehold appeared as chartered land (book-land), while
socage was in truth copyhold secured by communal custom[410]. The
necessary surrender and admittance was performed in open court, and the
presence of fellow-tenants was as much a requisite of it as the action
of the lord or his steward.
If we look now to the socmen outside the ancient demesne, we shall find
their condition so closely similar, that the documents constantly
confuse them with the tenants of the ancient demesne. The free men under
soke in the east of England have best kept the tradition, but even their
right is often treated as a mere variation of ancient demesne[411]. For
this reason we should be fairly entitled, I think, to extend to them the
notion of customary freehold. There is direct evidence in this respect.
In extents of manors socmen are often distinguished from
freeholders[412]. True, as already said, that in the king's courts 'free
socage' came to be regarded as one of the freehold tenures, and as such
(when not on the ancient demesne) was protected by the same actions
which protected knight-service and frankalmoign; but we have only here
another proof of the imperfect harmony between legal theory and
manorial administration. What serves in the manorial documents to
distinguish the 'socman' from the 'freeholder' is the fact that the
former holds without charter[413]. We are naturally led to consider him
as holding, at least originally, by ancient custom and communal
testimony in the same sense as the socmen of ancient demesne. In most
cases only the negative side, namely the absence of a charter, is
mentioned, but there are entries which disclose the positive side, and
speak of tenants or even free tenants holding without charter by ancient
tenure[414]. It is to be added, that we find such people in central and
western counties, that is outside of the Danelagh. In Domesday their
predecessors were entered as villains, but their tenure is nevertheless
not only a free but an ancient one.
[Bond socmen.]
It must also be added that it is not only free socmen that one finds
outside the ancient demesne; bond socmen are mentioned as well. Now this
seems strange at first sight, because the usual and settled terminology
treats villain socage as a peculiarity of ancient demesne. My notion is
that it is not 'bond' that qualifies the 'socmen,' but _vice versa_. To
put it in a different way, the documents had to name a class which held
by certain custom, although by base service, and they added the 'socman'
to qualify the 'bond' or the 'villain.'
Two cases from the Hundred Rolls may serve as an illustration of this
not unimportant point. The vill of Soham in Cambridgeshire[415] was
owned in 1279 partly by the King, partly by the Earl Marshall, and
partly by the Bishop of Ely. There are two socmen holding from the King
thirty acres each, fourteen socmen holding fifteen acres each, and
twenty-six 'toftarii' possessed of small plots. No villains are
mentioned, but the socmen are designated on the margin in a more
definite way as bond socmen. The manor had been in the possession of the
Crown at the time of the Conquest, and it is to be noticed, to begin
with, that the chief population of the part which remained with the King
appears as socmen--a good illustration of the principle that the special
status did not originate when the manor was granted out by the Crown.
The sixteen peasants first mentioned are holders of virgates and
half-virgates, and form as it were the original stock of the
tenantry--it would be impossible to regard them as a later adjunct to
the village. Their status is not a result of commutation--they are still
performing agricultural work, and therefore _bond_ socmen. The Domesday
Survey speaks only of villains and 'bordarii,' and it is quite clear
that it calls villains the predecessors of the 'bond socmen' of the
Hundred Rolls. And now let us examine the portion of the manor which had
got into the hands of the Earl Marshall. We find there several _free
socmen_ whose holdings are quite irregular in size: they pay rent, and
are exempted from agricultural work. Then come five _bond socmen_,
holding thirty acres each, and nine _bonds_ holding fifteen acres each:
all these perform the same services as the corresponding people of the
King's portion. And lastly come twenty-two tofters. Two facts are
especially worth notice: the free socman appears by the side of the bond
socman, and the opposition between them reduces itself to a difference
between rentpaying people and labourers; the holdings of the rentpayers
are broken up into irregular plots, while the labourers still remain
bound up by the system of equalised portions. The second significant
fact is, that the term 'socman,' which has evidently to be applied to
the whole population except the tofters, has dropped out in regard to
the half-virgate tenants of the Earl Marshall. If we had only the
fragment relating to his nine bondmen, we might conclude perhaps that
there was no certain tenure in the manor. The inference would have been
false, but a good many inferences as to the social standing of the
peasantry are based on no better foundation. In any case the most
important part of the population of Soham, as far as it belonged to the
king and to the earl, consisted of socmen who at the same time are
called bondmen, and were called villains in Domesday.
Soham is ancient demesne. Let us now take Crowmarsh in Oxfordshire[416].
Two-thirds of it belonged to the Earl of Oxford in 1279, and one-third
to the Lord de Valence. At the time of the Domesday Survey it was in the
hands of Walter Giffard, and therefore not ancient demesne. On the land
of the Earl of Oxford we find in 1279 nine _servi socomanni_ holding six
virgates, there are a few cotters and a few free tenants besides; the
remaining third is occupied by two 'tenentes per servicium
socomannorum,' and by a certain number of cotters and free tenants. It
can hardly be doubted that the opposition between _servi_ and _liberi_
is not based on the certainty of the tenure; the socmen hold as securely
as the free tenants, but they are labourers, while these latter are
exempted from the agricultural work of the village. The terms are used
in the same way as the 'terra libera' and the 'terra operabilis' of the
Glastonbury inquest.
[Servile duties of socmen and freeholders.]
I need not say that the socmen of ancient demesne, privileged villains
as Bracton calls them, are sometimes subjected to very burdensome
services and duties. Merchet is very common among them; it even happens
that they have to fine for it at the will of the lord[417]. But all the
incidents of base tenure are to be found also outside the ancient
demesne in connexion with the class under discussion. If we take the
merchet we shall find that at Magna Tywa, Oxon[418], it is customary to
give the steward a sword and four pence for licence to give away one's
daughter within twenty miles in the neighbourhood; in Haneberg,
Oxon[419], a spear and four pence are given in payment. The socmen of
Peterborough Abbey[420] have to pay five shillings and four pence under
the name of merchet as a fine for incontinence (the legerwite properly
so-called), and there is besides a marriage payment (redempcio
sanguinis) equal for socmen and villains. The same payment occurs in the
land of Spalding Priory, Lincoln[421]. The same fact strikes us in
regard to tallage and aids, i.e. the taxes which the lord had a right to
raise from his subjects. In Stoke Basset, Oxon[422], the socmen are
placed in this respect on the same footing with the villains. The
Spalding Cartulary adds that their wainage is safe in any case[423]. On
the lands of this priory the classes of the peasantry are generally very
near to each other, so that incidents and terms often get confused[424].
And not only socmen have to bear such impositions: we find them
constantly in all shapes and gradations in connection with free
tenantry. The small freeholder often takes part in rural work[425],
sometimes he has to act as a kind of overseer[426], and in any case this
base labour would not degrade him from his position[427]. Already in
Bracton's day the learned thought that the term 'socage' was
etymologically connected with the duty of ploughing:--a curious proof
both of the rapidity with which past history had become unintelligible,
and of the perfect compatibility of socage with labour services.
Merchet, heriot, and tallage occur even more often[428]. All such
exactions testify to the fact that the conceptions of feudal law as to
the servile character of particular services and payments were in a
great measure artificial. Tallage, even arbitrary tallage, was but a tax
after all, and did not detract from personal freedom or free tenure in
this sense. Then heriot often occurs among free people in the old Saxon
form of a surrender of horse and arms as well as in that of the best
ox[429]. Merchet is especially interesting as illustrating the fusion of
different duties into one. It is the base payment _par excellence_, and
often used in manorial documents as a means to draw the line between
free and unfree men[430]. Nevertheless free tenants are very often found
to pay it[431]. In most cases they have only to fine in the case when
their daughters leave the manor, and this, of course, has nothing
degrading in it: the payment is made because the lord loses all claim as
to the progeny of the woman who has left his dominion. But there is
evidence besides to show that free tenants had often to pay in such a
case to the hundred, and the lords had not always succeeded in
dispossessing the hundred[432]. Such a fine probably developed out of a
payment to the tribe or to a territorial community in the case when a
woman severed herself from it. It had nothing servile in its origin. And
still, if the documents had not casually mentioned these instances, we
should have been left without direct evidence as to a difference of
origin in regard to merchet or gersum. Is it not fair to ask, whether
the merchet of the villains themselves may not in some instances have
come from a customary recompense paid originally to the community of the
township into the rights of which the lord has entered? However this may
be, one fact can certainly not be disputed: men entirely free in status
and tenure were sometimes subjected to an exaction which both public
opinion and legal theory considered as a badge of servitude.
[Feudal oppression in the direction of servitude.]
The passage from one great class of society to the other was rendered
easy in this way by the variety of combinations in which the
distinguishing features of both classes appear. No wonder that we hear
constantly of oppression which tended to substitute one form of
subjection for another, and thus to lower the social standing of
intermediate groups. The free socmen of Swaffham Prior, in
Cambridgeshire[433], complain that they are made to bind sheaves while
they did not do it before; they used to pay thirty-two pence for licence
to marry a daughter, and to give a twofold rent on entering an
inheritance, and now the lord fines them at will. One of the tenants of
the Bishop of Lincoln[434] declares to the Hundred Roll Commissioners
that his ancestors were free socmen and did service to the king for
forty days at their own cost, whereas now the Bishop has appropriated
the royal rights. The same grievances come from ancient demesne people.
In Weston, Bedfordshire[435], the tenantry complain of new exactions on
the part of the lord; in King's Ripton[436], Hunts, merchet is
introduced which was never paid before; in Collecot, Berks[437], the
lord has simply dispossessed the socmen. In some instances the claims of
the peasantry may have been exaggerated, but I think that in all
probability the chances were rather against the subjected people than
for them, and their grievances are represented in our documents rather
less than fairly[438].
[Law of Kent.]
In speaking of those classes of peasants who were by no means treated as
serfs to be exploited at will, I must not omit to mention one group
which appears, not as a horizontal layer spread over England, but in the
vertical cut, as it were. I mean the Kentish gavelkind tenantry. The
Domesday Survey speaks of the population of this county quite in the
same way as of the people of neighbouring shires; villains form the
great bulk of it, socmen are not even mentioned, and to judge by such
indications, we have here plain serfdom occupying the whole territory of
the county. On the other hand the law of the thirteenth century puts the
social standing of Kentish men in the most decided opposition to that of
the surrounding people. The 'Consuetudines Kanciae,' the well-known list
of special Kentish customs[439], is reported to have been drawn up
during an eyre of John of Berwick in the twenty-first year of Edward I.
Be its origin what it may, we come across several of its rules at much
earlier times[440], and they are always considered of immemorial custom.
The basis of Kentish social law is the assumption that every man born in
the county is entitled to be considered as personally free, and the
Common Law Courts recognised the notion to the extent of admitting the
assertion that a person was born in Kent as a reply against the
'exceptio villenagii.' The contrast with other counties did not stop
there. The law of tenure was as different as the law of status. It would
be needless to enumerate all the points set forth as Kentish custom.
They show conclusively that the lord was anything but omnipotent in this
county. Interference with the proprietary right of the peasantry is not
even thought of; the tenants may even alienate their plots freely; the
lord can only claim the accustomed rents and services; if the tenants
are negligent in performing work or making payments, distress and
forfeiture are awarded by the manorial court according to carefully
graduated forms; wardship in case of minority goes to the kin and not to
the lord, and heiresses cannot be forced to marry against their wish. As
a case of independence the Kentish custom is quite complete, and
manorial documents show on every page that it was anything but a dead
letter. The Rochester Custumal, the Black Book of St. Augustine, the
customs of the Kentish possessions of Battle Abbey, the registers of
Christ Church, Canterbury, all agree in showing the Kentish tenantry as
a privileged one, both as to the quantity and as to the quality of their
services[441]. And so the great bulk of the Kentish peasantry actually
appears in the same general position as the free socmen of other
counties, and sometimes they are even called by this name[442].
What is more, the law of Kent thus favourable to the peasantry connects
itself distinctly with the ancient customs of Saxon ceorls: the quaint
old English proverbs enrolled in it look like sayings which have kept it
in the memory of generations before it was transmitted to writing. The
peculiarities in the treatment of wardship, of dower, of inheritance,
appear not only in opposition to the feudal treatment of all these
subjects, but in close connexion with old Saxon usage. It would be very
wrong, however, to consider the whole population of Kent as living
under one law. As in the case of ancient demesne, there were different
classes on Kentish soil: tenants by knight-service and sergeanty on one
side, villains on the other[443]. The custom of Kent holds good only for
the tenantry which would have been called gavelmen in other places. It
is a custom of gavelkind, of the rent-paying peasantry, the peasantry
which pays _gafol_, and as such stands in opposition to the usages of
those who hold their land by fork and flail[444]. The important point is
that we may lay down as certain in this case what was only put forward
hypothetically in the case of molmen and gavelmen in the rest of
England: the freehold quality of rent-paying land is not due to
commutation 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?
[Peasant freeholders.]
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[445]. 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[446]. I cannot help thinking
that a good deal has to be modified in this estimate of the evidence.
Without touching the subject in all its bearings, I may say at once that
I do not see sufficient reason to follow the testimony of Domesday very
closely as to names of classes. If we find in a place many free tenants
mentioned in the Hundred Roll, and none but villains in Domesday, it
would be wrong to infer that there were none but villains in the later
sense at the time of the Survey, or that all the free tenements of the
Hundred Rolls were of later creation than the Conquest. It would be
especially dangerous to draw such an inference in a case where the
freeholders of the thirteenth century are possessed of virgates,
half-virgates, etc., and not of irregular plots of land. Such cases may
possibly be explained by sweeping commutation, which emancipated the
entire village at one stroke, instead of making way for the freehold by
the gradual enfranchisement of plot after plot. But it is not likely
that all the many instances can be referred to such sweeping
emancipation. In the light of Kentish evidence, of free and villain
socage, it is at least probable that the thirteenth-century freeholders
were originally customary freeholders entered as villains in Domesday,
and rising to freedom again in spite of the influence of feudalism. Such
an assumption, even if only possible and hypothetical, would open the
way for further proof and investigation on the lines of a decline of
free village communities, instead of imposing a peremptory termination
of the whole inquiry for the period after the Conquest. If the Domesday
villains are in no case predecessors in title of freeholders, this fact
would go a long way to establish the serfdom of the village community
for all the period after the Conquest, and we should have to rely only
on earlier evidence to show anything else. Our case would be a hard one,
because the earlier evidence is scanty, scattered, obscure, and
one-sided. But if the villains of Domesday may be taken to include
customary freeholders, then we may try to illustrate our conceptions of
the early free village by traits drawn from the life of the later
period.
CHAPTER VII.
THE PEASANTRY OF THE FEUDAL AGE. CONCLUSIONS.
[Legal and manorial records.]
I have divided my analysis of the condition of the feudal peasantry into
two parts according to a principle forcibly suggested, as I think, by
the material at hand. The records of trials in the King's Court, and the
doctrines of lawyers based on them, cannot be treated in the same way as
the surveys compiled for the use of manorial administration. There is a
marked difference between the two sets of documents as to method and
point of view. In the case of legal records a method of dialectic
examination could be followed. Legal rules are always more or less
connected between themselves, and the investigator has to find out,
first, from the application of what principles they flow, and to find
out, secondly, whether fundamental contradictions disclose a fusion of
heterogeneous elements. The study of manorial documents had to proceed
by way of classification, to establish in what broad classes the local
variations of terms and notions arrange themselves, and what variations
of daily life these groups or classes represent.
It is not strange, of course, that things should assume a somewhat
different aspect according to the point of view from which they are
described. Legal classification need not go into details which may be
very important for purposes of manorial administration; neither the size
of the holdings nor the complex variations of services have to be looked
to in cases where the law of status is concerned. Still it may be taken
for granted that the distinctions and rules followed by the courts had
to conform in a general way with matter-of-fact conditions. Lawyers
naturally disregarded minute subdivisions, but their broad classes were
not invented at fancy; they took them from life as they did the few
traits they chose from among many as tests for the purpose of laying
down clear and convenient rules. A general conformity is apparent in
every point. At the same time there is undoubtedly an opposition between
the _curial_ (if I may use that term) and the _manorial_ treatment of
status and tenure, which does not resolve itself into a difference
between broad principle and details. Just because the lawyer has to keep
to distinct rules, he will often be behind his age and sometimes in
advance of it. His doctrine, once established, is slow to follow the
fluctuations of husbandry and politics: while in both departments new
facts are ever cropping up and gathering strength, which have to fight
their way against the rigidity of jurisprudence before they are accepted
by it. On the other hand, notions of old standing and tenacious
tradition cannot be put away at once, so soon as some new departure has
been taken by jurists; and even when they die out at common law such
notions persist in local habits and practical life. For these reasons,
which hold good more or less everywhere, and are especially conspicuous
in mediaeval history, the general relation between legal and manorial
documents becomes especially important. It will widen and strengthen
conclusions drawn from the analysis of legal theory. We may be sure to
find in thirteenth-century documents of practical administration the
foundations of a system which prevailed at law in the fifteenth. And
what is much more interesting, we may be sure to find in local
customaries the traces of a system which had its day long before the
thirteenth century, but was still lingering in broken remains.
[The will of the lord and the custom of the manor.]
Bracton defines villainage as a condition of men who do not know in the
evening what work and how much they will have to perform next morning.
The corresponding tenure is entirely precarious and uncertain at law.
But these fundamental positions of legal doctrine we find opposed in
daily life to the all-controlling rule of custom. The peasant knows
exactly on what days he has to appear personally or by representative at
ploughings and reapings, how many loads he is bound to carry, and how
many eggs he is expected to bring at Easter[447]; in most cases he knows
also what will be required from him when he inherits from his father or
marries his daughter. This customary arrangement of duties does not find
any expression in common law, and _vice versa_ the rule of common law
dwindles down in daily life to a definition of power which may be
exercised in exceptional cases. The opposition between our two sets of
records is evidently connected in this case with their different way of
treating facts.
[Movement towards free contract and money rents.]
Manorial extents and inquests give in themselves only a one-sided
picture of mediaeval village life, because they describe it only from
the point of view of the holding: people who do not own land are very
seldom noticed, and among the population settled on the land only those
persons are named who 'defend' the tenement in regard to the lord. Only
the chief of the household appears; this is a matter of course. He may
have many or few children, many or few women engaged on his plot: the
extent will not make any difference in the description of the tenement
and of its services. But although very incomplete in this important
respect, manorial records allow us many a glimpse at the process which
was preparing a great change in the law. Hired labourers are frequently
mentioned in stewards' accounts, and the 'undersette' and 'levingmen'
and 'anelipemen[448]' of the extents correspond evidently to this
fluctuating population of rural workmen and squatters gathering behind
the screen of recognised peasant holders.
The very foundation of the mediaeval system, its organisation of work
according to equalised holdings and around a manorial centre, is in
course of time undermined by the process of commutation. Villains are
released from ploughings and reapings, from carriage-duties and boon
work by paying certain rents; they bargain with the lord for a surrender
of his right of arbitrary taxation and arbitrary amercement; they take
leases of houses, arable and meadows. This important movement is
directly noticed by the law in so far as it takes the shape of an
increase in the number of freeholders and of freehold tenements;
charters and instruments of conveyance may be concerned with it. But the
process is chiefly apparent in a standing contradiction with the law.
Legally an arrangement with a villain either ought not to bind the lord
or else ought to destroy his power. Even in law books, however, the
intermediate form of a binding covenant with the villain emerges, as we
have seen, in opposition to the consistent theory. In practice the
villains are constantly found possessed of 'soclands,' 'forlands,' and
freeholds. The passage from obligatory labour to proprietary rights is
effected in this way without any sudden emancipation, by the gradual
accumulation of facts which are not strictly legal and at the same time
tend to become legal.
[Emancipation.]
Again, the Royal courts do not know anything about 'molmen,' 'gavelmen,'
or 'censuarii,' They keep to the plain distinction between free and
bond. Nevertheless, all these groups exist in practice, and are
constantly growing in consequence of commutation. The whole law of
status gets transformed by their growth as the law of tenure gets
transformed by the growth of leases. Molmen, though treated as villains
by Royal courts, are already recognised as more 'free' than the villains
by manorial juries. The existence of such groups testifies to something
more than a precarious passage from service to rent, namely to a change
from servile subjection to a status closely resembling that of peasant
freeholders, and actually leading up to it. In one word, our manorial
records give ample notice of the growth of a system based on free
contract and not on customary labour. But the old forms of tenure and
service are still existent in law, and the contradiction involved in
this fact is not merely a technical one: it lies at the root of the
revolutionary movement at the close of the fourteenth century. In this
manner facts were slowly paving the way towards a modification of the
law. But now, turning from what is in the future, to what is in the
past, let us try to collect those indications which throw light on the
condition of things preceding feudal law and organisation.
[Contrast between labour and rent.]
The one-sided conception of feudal law builds up the entire structure of
social divisions on the principle of the lord's will. Custom, however
sacred, is not equivalent to actionable right, and a person who has
nothing but custom to lean upon is supposed to be at the will and mercy
of his lord and of base or servile condition. But we find even in the
domain of legal doctrine other notions less convenient for the purpose
of classification, and more adapted to the practice of daily life.
Servile persons and servile land are known from the nature of the
services to which they are subject. This test is applied in two
directions: (1) regular rural work, 'with pitch-fork and flail,' is
considered servile; and this would exclude the payment of rents and
occasional help in the performance of agricultural labour; (2) certain
duties are singled out as marking servitude because they imply the idea
of one person being owned by another, and this would exclude subjection
derived from the possession of land, however burdensome and arbitrary
such subjection might be.
Turning next to manorial records, we find these abortive features of
feudal law resting on a very broad basis. Only that land is considered
servile which owes labour, if it renders nothing but rent it is termed
free. We have here no mere commutation: the notion is an old one, and
rather driven back by later law than emerging from it. It is natural
enough that the holder of a plot is considered free if his relations
with the lord are restricted to occasional appearances at court,
occasional fines, and the payment of certain rents two or three times a
year. It is natural enough that the holder of another plot should be
treated as a serf because he is bound to perform work which is fitted as
a part into the arrangement of his lord's husbandry, and constantly
brought under the control and the coercive power of the steward. This
matter-of-fact contrast comes naturally to the fore in documents which
are drawn up as descriptions of daily transactions and not as evidence
for a lawsuit. But the terms 'free' and 'servile' are not used lightly
even in such documents. We may be sure that manorial juries and bailiffs
would not have been allowed to displace at their pleasure terminological
distinctions which might lead people to alter their legal position. The
double sense of these terms cannot be taken as arranging society under
the same two categories and yet in two entirely different ways: it must
be construed as implying the two sides of one and the same thing, the
substance in manorial records and the formal distinction in legal
records. That is to say, when the test of legal protection was applied,
the people who had to perform labour were deprived of it and designated
as holding in villainage, and to the people who paid rent protection was
granted and they were considered as holding freely. For this very reason
the process of commutation creating mol-land actually led to an increase
in the number of free tenancies[449].
[Personal subjection.]
The courts made some attempts to utilise personal subjection as a
distinctive feature of born villains. If it had been possible to follow
out the principle, we should have been able to distinguish between
villains proper and men of free blood holding in villainage. The attempt
miscarried in practice, although the King's courts were acting in this
case in conjunction with local custom and local juries. The reason of
the failure is disclosed by manorial documents. Merchet, the most
debasing incident of personal villainage, appears so widely spread in
the Hundred Rolls that there can be no question, at least at the close
of the thirteenth century, of treating it as a sure test of personal
subjection. We cannot admit even for one moment that the whole peasant
population of entire counties was descended from personal slaves, as the
diffusion of merchet would lead us to suppose. The appearance of the
distinction is quite as characteristic as its gradual collapse. The
original idea underlying it was to connect villain status with personal
slavery, and it failed because the incidents of personal slavery were
confused with other facts which were quite independent of it and which
were expanded over a very large area instead of a very restricted one.
[Three tests of serfdom.]
And now we have ready the several links of one chain. The three tests of
serfdom applied by our documents are connected with each other by the
very terms in which they are stated, and at the same time they present
three consecutive stages of development. The notion of serfdom is
originally confined to forms of personal subjection and to the
possession of land under the bane of personal subjection: in this sense
servitude is a narrow term, and the condition denoted by it is
exceptional. In its second meaning it connects itself with rural labour
and spreads over the whole class of peasants engaged in it. In its last
and broadest sense it includes all the people and all the land not
protected by the Common Law. We have no evidence as to the chronological
landmarks between these several epochs, and it is clear that the passage
from one to another was very gradual, and by no means implied the
absolute disappearance of ancient terms. But it seems hardly doubtful
that the movement was effected in the direction described; both the
intrinsic evidence of the notions under discussion and their appearance
in our documents point this way.
[History of free peasantry.]
This being so, we may expect to find some traces of the gradual spread
of serfdom in the subdivisions of that comprehensive class called
villainage. And, indeed, there are unmistakable signs of the fact that
the flood was rising slowly and swamping the several groups of the
peasantry which hitherto had been of very various conditions. The
Domesday classification will have to be discussed by itself, but it may
be noticed even now that its fundamental features are the distinction
between serfs and villains, and the very limited number of these first.
Judging by this, the bulk of the peasantry was not considered unfree.
The inference is corroborated for the epoch of the early Norman kings by
the laws of Henry I, in which the villain is still treated on the same
footing as the ceorl of Saxon times, is deemed 'worthy of his were and
of his wite,' and is called as a free man to the hundred court, although
not a landlord, 'terrarum dominus.' The hundredors of later times kept
up the tradition: degraded in many ways, they were still considered as
representatives of a free population. Ancient demesne tenure is another
proof of the same freedom in villainage; it is protected though base,
and supposes independent rights on the part of the peasantry. The
position of the group of socmen outside the ancient demesne points the
same way: their tenure is originally nothing more and nothing less than
a customary freehold or a free copyhold, if one may say so. The law of
Kent is constructed on this very basis: it is the law of free ceorls
subjected to a certain manorial authority which has not been able to
strike very deep roots in this soil.
But the general current went steadily against the peasantry. The
disruption of political unity at the time of the great civil war, and
the systematic resumption of royal rights by Henry II, must have led to
a settlement which impaired the social standing of the villain in the
sense of feudal law. The immediate connexion between the lower class and
the royal power could not be kept up during the troubled reign of
Stephen, when England all but lapsed into the political dismemberment of
the neighbouring continental states. Government and law were restored by
Henry II, but he had to set a limit to his sphere of action in order
that within that sphere he might act efficiently. The very growth of the
great system of royal writs necessitated the drawing a sharp line
between the people admitted to use them and those excluded from this
benefit. One part of the revolution effected by the development of royal
jurisdiction is very noticeable in our documents: the struggle between
king and magnates as to the right of judging freeholders has left many
traces, of which the history of the 'breve quod vocatur praecipe' is
perhaps the most remarkable. But the victorious progress of royal
jurisdiction in regard to freeholders was counterbalanced by an all but
complete surrender of it in regard to villains. The celebrated tit. 29
of William the Conqueror's laws providing that the cultivators of the
land are not to be subjected to new exactions, had lost its sense in the
reign of Henry II, and so soon as it was settled that one class of
tenants was to be protected, while another was to be unprotected in the
king's court, the lawyers set themselves thinking over the problem of a
definite and plain division of classes. Their work in this direction
bears all the marks of a fresh departure. They are wavering between the
formal and the material test: instead of setting up at once the
convenient doctrine that villainage is proved by stock, and that in
regard to service and tenure the question is decided by their certainty
or uncertainty, they try for a long time to shape conclusive rules as to
the kind of services and incidents which imply villainage, and for a
time distinction between rural labour and rent becomes especially
important.
On the whole, I think that an analysis of the legal and manorial
evidence belonging to the feudal age leads forcibly to the conclusion
that the general classification of society under the two heads of
freeholders and villains is an artificial and a late one. A number of
important groups appear between the two, and if we try to reduce them to
some unity, we may say that a third class is formed by customary
freeholders. Another way of stating the same thing would be to say, that
the feudal notion of a freehold from which the modern notion has
developed must be supplemented from the point of view of the historian
by a more ancient form which is hidden, as it were, inside the class
distinction of villainage. By the side of the freeholder recognised by
later law there stands the villain as a customary freeholder who has
lost legal protection. I do not think that the problems resulting from
the ambiguous position of the feudal villain can be solved better than
on the supposition of this 'third estate.'
SECOND ESSAY.
THE MANOR AND THE VILLAGE COMMUNITY.
CHAPTER I.
THE OPEN FIELD SYSTEM AND THE HOLDINGS.
[Structure of the manor.]
My first essay has been devoted to the peasantry of feudal England in
its social character. We have had to examine its classes or divisions in
their relation to freedom, personal slavery, and praedial serfage. The
land system was touched upon only so far as it influenced such
classification, or was influenced by it.
But no correct estimate of the social standing of the peasantry can stop
here, or content itself with legal or administrative definitions. In no
degree of society do men stand isolated, and a description of individual
status alone would be thoroughly incomplete. Men stand arranged in
groups for economical and political co-operation, and these groups are
composed according to the laws of the division and hierarchical
organisation of labour, composed, that is, of heterogeneous elements, of
members who have to fulfil different functions, and to occupy higher and
lower positions. The normal group which forms as it were the
constitutive cell of English mediaeval society is the _manor_, and we
must try to make out in what way it was organised, and how it did its
work in the thirteenth century, at the time of fully developed
feudalism.
The structure of the ordinary manor is always the same. Under the
headship of the lord we find two layers of population--the villains and
the freeholders; and the territory occupied divides itself accordingly
into demesne land[450] and 'tributary land' (if I may use that phrase)
of two different classes. The cultivation of the demesne depends to a
certain extent on the work supplied by the tenants of the tributary
land. Rents are collected, labour supervised, and all kinds of
administrative business transacted, by a set of manorial officers or
servants. The entire population is grouped into a village community
which centres round the manorial court or halimote, which is both
council and tribunal. My investigation will necessarily conform to this
typical arrangement. The _holding of the peasant_ is the natural
starting-point: it will give us the clue to the whole agrarian system.
Next may come that part of the territory which is not occupied _in
severalty_ but used _in common_. The _agrarian obligations_ with regard
to the lord and the _cultivation of the demesne land_ may be taken up
afterwards. The position of _privileged people_, either servants or
freeholders, must be discussed by itself, as an exceptional case. And,
lastly, the question will have to be put--to what extent were all these
elements welded together in the _village community_, and under the sway
of the _manorial court_?
[Field systems.]
The chief features of the field-system which was in operation in England
during the middle ages have been sufficiently cleared up by modern
scholars, especially by Nasse, Thorold Rogers, and Seebohm, and there is
no need for dwelling at length on the subject. Everybody knows that the
arable of an English village was commonly cultivated under a three years
rotation of crops[451]; a two-field system is also found very
often[452]; there are some instances of more complex arrangements[453],
but they are very rare, and appear late--not earlier than the fourteenth
century. Walter of Henley's treatise on farming, which appears to belong
to the first half of the thirteenth, mentions only the first two
systems, and its estimate of the plough-land is based on them. In the
case of a three-field rotation a hundred and eighty acres are reckoned
to the plough; a hundred and sixty in a system of two courses[454]. We
find the same estimate in the chapters on husbandry and management of an
estate which are inserted in the law-book known as Fleta[455]. The
strips in the fields belonging to the several tenants were divided by
narrow balks of turf, and when the field lay fallow, or after the
harvest had been removed, the entire field was turned into a common
pasture for the use of the village cattle. The whole area was protected
by an inclosure while it was under crop.
[Inhoke.]
A curious deviation is apparent in the following instance, taken from
the cartulary of Malmesbury. The Abbey makes an exchange with a
neighbour who has rights of common on some of the convent's land, and
therefore does not allow of its being cultivated and inclosed (_inhoc
facere_). In return for certain concessions on the part of the Abbey,
this neighbouring owner agrees that fallow pasture should be turned into
arable on the condition that after the harvest it should return to
common use, as well as the land not actually under seed. Lastly comes a
provision about the villains of the person entering into agreement with
the Abbey: if they do not want to conform to the new arrangement of
cultivation, they will be admitted to their strips for the purpose of
ploughing up or using the fallow[456]. The case is interesting in two
respects: it shows the intimate connexion between the construction of
the inclosure (_inhoc_) and the raising of the crop; the special
paragraph about the villains gives us to understand that something more
than the usual rotation of crops was meant: the 'inhokare' appears in
opposition either to the ordinary ploughing up of the fallow, or in a
general sense to its use for pasture; it seems to indicate
extra-cultivation of such land as ought to have remained uncultivated.
These considerations are borne out by other documents. In a trial of
Edward I's time the 'inheche' is explained in as many words as the
ploughing up of fallow for a crop of wheat, oats, or barley[457]. The
Gloucester Survey, in describing one of the manors belonging to the
Abbey, arranges its land into four fields (_campi_), each consisting of
several parts: the first field is said to contain 174 acres, the second
63, the third 109, the fourth 69 acres. Two-thirds of the whole are
subjected to the usual modes of cultivation under a three-course system,
and one-third remains for pasture. But out of this last third, 40 acres
of the first field (of 174 acres) get inclosed and used for crop in one
year, and 20 acres of the second in another[458]. In this way the
ordinary three-course alternation becomes somewhat more complicated, and
it will be hardly too bold a guess to suppose that such
extra-cultivation implied some manuring of such patches as were deprived
of their usual rest once in three years. In contradiction to the
customary arrangement which did not require any special manuring except
that which was incident to the use of arable as pasture for the cattle
after the harvest, we find plots set apart for more intense
cultivation[459], and it is to be noticed that the reckoning in
connexion with them does not start from the division according to three
parts, but supposes a separate classification in two sections.
[The 'Campus.']
Another fact worth noticing in the Gloucester instance is the irregular
distribution of acres in the 'fields,' and the division of the entire
arable into four unequal parts. The husbandry is conducted on the
three-course system, and still four fields are mentioned, and there is
no simple relation between the number of acres which they respectively
contain (174, 63, 109, 69). It seems obvious that the expression 'field'
(_campus_) is used here not in the ordinary sense suggested by such
records as spring-field, winter-field, and the like, but in reference to
the topography of the district. The whole territory under cultivation
was divided into a number of squares or furlongs which lay round the
village in four large groups. The alternation of crops distributed the
same area into three according to a mode not described by the Survey,
and it looks probable at first glance that each of the 'fields'
(_campi_) contained elements of all three courses. The supposition
becomes a certainty, if we reflect that it gives the only possible
explanation of the way in which the twofold alternation of the 'inhoc'
is made to fit with the threefold rotation of crops: every year some of
the land in each _campus_ had to remain in fallow, and could be inclosed
or taken under 'inhoc.' Had the _campus_ as a whole been reserved for
one of the three courses, there would have been room for the 'inhoc'
only every three years.
I have gone into some details in connexion with this instance because it
presents a deviation from ordinary rules, and even a deviation from the
usual phraseology, and it is probable that the exceptional use of words
depended on the exceptional process of farming. A new species of
arable--the manured plot under 'inhoc'--came into use, and naturally
disturbed the plain arrangement of the old-fashioned three courses; the
lands had to be grouped anew into four sections which went under the
accustomed designation of 'fields,' although they did not fit in with
the 'three fields' of the old system. In most cases, however, our
records use the word 'field' (_campus_) in that very sense of land under
one of the 'courses,' which is out of the question in the case taken
from the Gloucester Cartulary. The common use is especially clear when
the documents want to describe the holding of a person, and mention the
number of acres in each 'field,' The Abbot of Malmesbury, e.g., enfeoffs
one Robert with a virgate formerly held 'in the fields' by A.,
twenty-one acres in one field and twenty-one in another[460]. The
charter does not contain any description of _campi_ in the territorial
sense, and it is evident that the expression 'in the fields' is meant to
indicate a customary and well-known husbandry arrangement. The same
meaning must be put on sentences like the following--R.A. holds a
virgate consisting of forty-two acres in both fields[461]. The question
may be raised whether we have to look for 'both fields' in the winter
and spring-field of the three courses rotation, or in the arable and
fallow of the two courses. In the first of these eventualities, the
third reserved for pasture and rest would be left out of the reckoning;
it would be treated as an appurtenance of the land that was in
cultivation. Cases in which the portions in the several fields are
unequal seem to point to the second sense[462]. It was impossible to
divide the whole territory under cultivation like a piece of paper:
conformation of the soil had, of course, much to do with the shape of
the furlongs and their distribution, and the courses of the husbandry
could not impress themselves on it without some inequalities and stray
remnants. It may happen for this reason that a man holds sixteen acres
in one field and fourteen in the other. There is almost always, however,
a certain correspondence between the number of acres in each field;
instances of very great disparity are rare, and suppose some local and
special reasons which we cannot trace. Such disparities seem to point,
however, to a rotation according to two courses, because the fallow of
the three courses could have been left out of the reckoning only if all
the parts in the fields were equal[463]. I think that a careful
inspection of the surveys from this point of view may lead to the
conclusion that the two courses rotation was very extensively spread in
England in the thirteenth century.
[Compulsory rotation of crops.]
A most important feature of the mediaeval system of tillage was its
compulsory character. The several tenants, even when freeholders, could
not manage their plots at their own choice[464]. The entire soil of the
township formed one whole in this respect, and was subjected to the
management of the entire village. The superior right of the community
found expression in the fact that the fields were open to common use as
pasture after the harvest, as well as in the regulation of the modes of
farming and order of tillage by the township. Even the lord himself had
to conform to the customs and rules set up by the community, and
attempts to break through them, although they become frequent enough at
the close of the thirteenth century, and especially in the fourteenth,
are met by a resistance which sometimes actually leads to
litigation[465]. The freeholders alone have access to the courts, but
in practice the entire body of the tenantry is equally concerned. The
passage towards more efficient modes of cultivation was very much
obstructed by these customary rules as to rotation of crops, which flow
not from the will and interest of single owners, but from the decision
of communities.
[Intermixture of strips.]
The several plots and holdings do not lie in compact patches, but are
formed of strips intermixed with each other. The so-called open-field
system has been treated so exhaustively and with such admirable
clearness by Seebohm, that I need not detain my readers in order to
discuss it at length. I shall merely take from the Eynsham Cartulary the
general description of the arable of Shifford, Oxon. It consists of
several furlongs or areas, more or less rectangular in shape; each
furlong divided into a certain number of strips (_seliones_), mostly
half an acre or a rood (quarter acre) in width; some of these strips get
shortened, however (_seliones curtae_), or sharpened (_gorae_),
according to the shape of the country. At right angles with the strips
in the fields lie the 'headlands' (_capitales_), which admit to other
strips when there is no special road for the purpose[466]. When the area
under tillage abuts against some obstacles, as against a highway, a
river, a neighbouring furlong, the strips are stunted (_buttae_). Every
strip is separated from the next by _balks_ on even ground, and
_linches_ on the steep slopes of a hill. The holding of a peasant, free
or villain, has been appropriately likened to a bundle of these strips
of different shapes, the component parts of which lie intermixed with
the elements of other holdings in the different fields of the township.
There is e.g. in the Alvingham Cartulary a deed by which John Aysterby
grants to the Priory of Alvingham in Lincolnshire his villain Robert and
half a bovate of land[467]. The half-bovate is found to consist of
twelve strips west of Alvingham and sixteen strips east of the village;
the several plots lie among similar plots owned by the priory and by
other peasants. The demesne land of the priory is also situated not in
compact areas, but in strips intermixed with those of the tenantry, in
the 'communal fields' according to the phraseology of our documents.
Such a distribution of the arable seems odd enough. It led undoubtedly
to very great inconvenience in many ways: it was difficult for the owner
to look after his property in the several fields, and to move constantly
from one place to another for the purposes of cultivation. A thrifty
husbandman was more or less dependent for the results of his work on his
neighbours, who very likely were not thrifty. The strips were not always
measured with exactness[468], and our surveys mention curious
misunderstandings in this respect: it happens that as much as three
acres belonging to a particular person get mislaid somehow and cannot be
identified[469]. It is needless to say that disputes among the
neighbours were rendered especially frequent by the rough way of
dividing the strips, and by the cutting up of the holdings into narrow
strips involving a very long line of boundary. And still the open-field
system, with the intermixed strips, is quite a prevalent feature of
mediaeval husbandry all over Europe. It covers the whole area occupied
by the village community; it is found in Russia as well as in England.
[Division of the land in Segheho.]
Before we try to find an explanation for it, I shall call the attention
of the reader to the following tale preserved by an ancient survey of
Dunstable Priory. I think that the record may suggest the explanation
with the more authority as it will proceed from well-established facts
and not from suppositions[470]. The story goes back to the original
division of the land belonging to the Wahull manor by the lords de
Wahull and de la Lege. The former had to receive two-thirds of the manor
and the latter one-third: a note explains this to mean, that one had to
take twenty knight-fees and the other ten. The lord de Wahull took all
the park in Segheho and the entire demesne farm in 'Bechebury.' As a
compensation for the surrender of rights on the part of his fellow
parcener, he ordered the wood and pasture called Northwood to be
measured, as also the neighbouring wood called Churlwood. He removed all
the peasants who lived in these places, and had also the arable of
Segheho measured, and it was found that there were eight hides of
villain land. Of these eight hides one-fourth was taken, and it was
reckoned that this fourth was an equivalent to the one-third of the park
and of the demesne farm, which ought by right to have gone to the lord
de la Lege. On the basis of this estimation an exchange was effected.
In the time of the war (perhaps the rebellion of 1173) the eight hides
and other hides in Segheho were encroached upon and appropriated
unrighteously by many, and for this reason a general revision of the
holdings was undertaken before Walter de Wahull and Hugh de la Lege in
full court by six old men; it was made out to which of the hides the
several acres belonged. At that time, when all the tenants in Segheho
(knights, freeholders, and others) did not know exactly about the land
of the village and the tenements, and when each man was contending that
his neighbours held unrighteously and more than they ought, all the
people decided by common agreement and in the presence of the lords de
Wahull and de la Lege, that everybody should surrender his land to be
measured anew with the rood by the old men as if the ground had been
occupied afresh: every one had to receive his due part on consideration
of his rights. At that time R.F. admitted that he and his predecessors
had held the area near the castle unrighteously. The men in charge of
the distribution divided that area into sixteen strips (buttos), and
these were divided as follows: there are eight hides of villain land in
Segheho and to each two strips were apportioned.
[Intermixture produced by the wish to equalise the shares.]
The narrative is curious in many respects. It illustrates beautifully
the extent to which the intermixture of plots was carried, and the
inconveniences consequent upon it. Although the land had been measured
and divided at the time when the lord de Wahull took the land,
everything got into confusion at the time of the civil war, and the
disputes originated not in violence from abroad but in encroachments of
the village people among themselves: the owners of conterminous strips
were constantly quarrelling. A new division became necessary, and it
took place under circumstances of great solemnity, as a result of an
agreement effected at a great meeting of the tenantry before both lords.
The new distribution may stand for all purposes in lieu of the original
parcelling of the land on fresh occupation. The mode of treating one of
the areas shows that the intermixture of the strips was a direct
consequence of the attempt to equalise the portions. Instead of putting
the whole of this area into one lot, the old men divide it into strips
and assign to every great holding, to every hide, two strips of this
area. Many inconveniences follow for some of the owners, e.g. for the
church which, it is complained, cannot put its plot to any use on
account of its lying far away, and in intermixture with other people's
land. But the guiding principle of equal apportionment has found a
suitable expression.
[Possible modes of dividing the land.]
We may turn now from the analysis of this case to general
considerations. The important point in the instance quoted was, that the
assignment of scattered strips to every holding depended on the wish to
equalise the shares of the tenants. I think it may be shown that the
treatment adopted in Segheho was the most natural, and therefore the
most widely-spread one. To begin with, what other form of allotment
appears more natural in a crude state of society? To employ a simile
which I have used already, the territory of the township is not like a
homogeneous sheet of paper out of which you may cut lots of every
desirable shape and size: the tilth will present all kinds of accidental
features, according to the elevation of the ground, the direction of the
watercourses and ways, the quality of the soil, the situation of
dwellings, the disposition of wood and pasture-ground, etc. The whole
must needs be dismembered into component parts, into smaller areas or
furlongs, each stretching over land of one and the same condition, and
separated from land of different quality and situation. Over the
irregular squares of this rough chess-board a more or less entangled
network of rights and interests must be extended. There seem to be only
two ways of doing it: if you want the holding to lie in one compact
patch you will have to make a very complicated reckoning of all the many
circumstances which influence husbandry, will have to find some
numerical expression for fertility, accessibility, and the like; or else
you may simply give every householder a share in every one of the
component areas, and subject him in this way to all the advantages and
drawbacks which bear upon his neighbours. If the ground cannot be made
to fit the system of allotment, the system must conform itself to the
ground. There can be no question that the second way of escaping from
the difficulty is much the easier one, and very suitable to the practice
of communities in an early stage of development. This second way leads
necessarily to a scattering and an intermixture of strips. The
explanation is wide enough to meet the requirements of cases placed in
entirely different local surroundings and historical connexions; the
tendency towards an equalising of the shares of the tenantry is equally
noticeable in England and in Russia, in the far west and in the far east
of Europe. In Russia we need not even go into history to find it
operating in the way described; the practice is alive even now.
[Individual occupation of arable and communal rights.]
This intermixture of strips in the open fields is also characteristic in
another way: it manifests the working of a principle which became
obliterated in the course of history, but had to play a very important
part originally. It was a system primarily intended for the purpose of
equalising shares, and it considered every man's rights and property as
interwoven with other people's rights and property: it was therefore a
system particularly adapted to bring home the superior right of the
community as a whole, and the inferior, derivative character of
individual rights. The most complete inference from such a general
conception would be to treat individual occupation of the land as a
shifting ownership, to redistribute the land among the members of the
community from time to time, according to some system of lot or
rotation. The western village community does not go so far, as a rule,
in regard to the arable, at least in the time to which our records
belong. But even in the west, and particularly in England, traces of
shifting ownership, 'shifting severalty,' may be found as scattered
survivals of a condition which, if not general, was certainly much more
widely spread in earlier times[471]. The arable is sometimes treated as
meadows constantly are: every householder's lot is only an 'ideal' one,
and may be assigned one year in one place, and next year in another. The
stubborn existence of intermixed ownership, even as described by feudal
and later records, is in itself a strong testimony to the communal
character of early property. The strips of the several holders were not
divided by hedges or inclosures, and a good part of the time, after
harvest and before seed, individual rights retreated before common use;
every individualising treatment of the soil was excluded by the
compulsory rotation of crops and the fact that every share consisted of
a number of narrow strips wedged in among other people's shares. The
husbandry could not be very energetic and lucrative under such pressure,
and a powerful consideration which kept the system working, against
convenience and interest, was its equalising and as it were communal
tendency. I lay stress on the fact: if the open-field system with its
intermixture had been merely a reflection of the original allotment, it
would have certainly lost its regularity very soon. People could not be
blind to its drawbacks from the point of view of individual farming; and
if the single strips had become private property as soon as they ceased
to be shifting, exchanges, if not sales, would have greatly destroyed
the inconvenient network. The lord had no interest to prevent such
exchanges, which could manifestly lead to an improvement of husbandry;
and in regard to his own strips, he must have perceived soon enough that
it would be better to have them in one compact mass than scattered about
in all the fields. And still the open-field intermixture holds its
ground all through the middle ages, and we find its survivals far into
modern times. This can only mean, that even when the shifting, 'ideal,'
share in the land of the community had given way to the permanent
ownership by each member of certain particular scattered strips, this
permanent ownership did by no means amount to private property in the
Roman or in the modern sense. The communal principle with its equalising
tendency remained still as the efficient force regulating the whole,
and strong enough to subject even the lord and the freeholders to its
customary influence. By saying this I do not mean to maintain, of
course, that private property was not existent, that it was not breaking
through the communal system, and acting as a dissolvent of it. I shall
have to show by-and-by in what ways this process was effected. But the
fact remains, that the system which prevailed upon the whole during the
middle ages appears directly connected in its most important features
with ideas of communal ownership and equalised individual rights.
[Arrangement of holdings.]
These ideas are carried out in a very rough way in the mediaeval
arrangement of the holding, which is more complicated in England than on
the continent. According to a very common mode of reckoning, the hide
contains four virgates, every virgate two bovates, and every bovate
fifteen acres. The bovate (oxgang) shows by its very name that not only
the land is taken into account, but the oxen employed in its tillage,
and the records explain the hide or carucate[472] to be the land of the
eight-oxen plough, that is so much land as may be cultivated by a plough
drawn by eight oxen. The virgate, or yard-land, being the fourth part of
a hide, corresponds to one-fourth part of the plough, that is, to two
oxen, contributed by the holder to the full plough-team; the bovate or
oxgang appears as the land of one ox, and the eighth part of the
hide[473]. Such proportions are, as I said, very commonly found in the
records, but they are by no means prevalent everywhere. On the
possessions of Glastonbury Abbey, for instance, we find virgates of
forty acres, and a hide of 160; and the same reckoning appears in manors
of Wetherall Priory, Westmoreland[474], of the Abbey of Eynsham,
Oxfordshire[475], and many other places.
The so-called Domesday of St. Paul's reports[476], that in Runwell
eighty acres used to be reckoned to the hide, but in course of time new
land was acquired (for tillage) and measured, and so the hide was raised
to 120 acres. Altogether the supposition of an uniform acre-measurement
of bovates, virgates, hides, and knights' fees all over England would be
entirely misleading. The oxen were an important element in the
arrangement, but, of course, not the only one. The formation of the
holding had to conform also to the quality of the soil, the density of
the population, etc. We find in any case the most varying figures. The
knight's fee contained mostly four or five full ploughs or carucates,
and still in Lincolnshire sixteen carucates went to the knight's
fee[477]. The carucate was not identical with the hide, but carucate and
hide alike had originally meant a unit corresponding to a plough-team.
Four virgates were mostly reckoned to the hide, but sometimes six,
eight, seven are taken[478]. The yardlands (virgates) or full lands, as
they are sometimes called, because they were considered as the typical
peasant holdings, consist of fifteen, sixteen, eighteen, twenty-four,
forty, forty-eight, fifty, sixty-two, eighty acres, although thirty is
perhaps the figure which appears more often than any other[479]. Bovates
of ten, twelve, and sixteen acres are to be found in the same
locality[480]. We cannot even seize hold of the acre as the one constant
unit among these many variables; the size of the acre itself varied from
place to place. In this way any attempt to establish a normal reckoning
of the holdings will not only seem hazardous, but will actually stand in
contradiction with patent facts.
[The holdings not strictly equal in acreage.]
Another circumstance seems of yet greater import: even within the
boundaries of one and the same community the equality was an agrarian
one and did not amount to a strict correspondence in figures. It was
obviously impossible to cut up the land among the holdings in such a way
as to make every one contain quite the same number of acres as the rest.
In the Cartulary of Ramsey it is stated, that in one of the manors the
virgate contains sometimes forty-eight acres and sometimes less[481].
The Huntingdon Hundred Rolls mentions a locality where some of the
half-virgates have got houses on their plots and some have not[482]. In
the Dorsetshire manor of Newton, belonging to Glastonbury, we find a
reduction of the duties of one of the virgates because it is a small
one[483]. A curious instance is supplied by the same Glastonbury survey
as to the Wiltshire manor of Christian Malford: one of the virgates was
formed out of two former virgates, which were found insufficient to
support two separate households[484].
This last case makes it especially clear that the object was to make
the shares on the same pattern in point of quality, and not of mere
quantity. It is only to be regretted that manorial surveys, hundred
rolls, and other documents of the same kind take too little heed of such
variations, and consider the whole arrangement merely in regard to the
interests of the landlord. For this purpose a rough quantitative
statement was sufficient. They give very sparing indications as to the
facts underlying the system of holdings; their aim is to reduce all
relations to artificial uniformity in order to make them a fitter basis
for the distribution of rents and labour services. But very little
attention is required to notice a very great difference between such
figures and reality. In most of the cases, when the virgate is described
in its component parts, we come across irregularities. Again, each
component part is more or less irregular, because instead of the acres
and half-acres the real ground presents strips of a very capricious
shape. And so we must come to the conclusion, that the hide, the
virgate, the bovate, in short every holding mentioned in the surveys,
appears primarily as an artificial, administrative, and fiscal unit
which corresponds only in a very rough way to the agrarian reality.
[Acre ware.]
This conclusion coincides with the most important fact, that the
reckoning of acres in regard to the plough-team is entirely different in
the treatises on husbandry from what it is in the manorial records drawn
up for the purpose of an assessment of duties and payments. Walter of
Henley and Fleta reckon 180 acres to the plough in a three-field system,
and 160 in a two-field system. Now these figures are quite exceptional
in surveys, whereas 120 acres is most usual without any distinction as
to the course of rotation of crops. The relation between the three-field
ploughland of 180 acres and the hide of 120 suggests the inference that
the official assessment started from the prevalence of the three-field
rotation, and disregarded the fallow. But the inference is hardly
sufficient to explain the facts of the case. The way towards a solution
of the problem is indicated by the terminology of the Ely surveys in the
British Museum. These documents very often mention virgates and full
yardlands of twelve acres _de ware_; on the other hand, the Court Rolls
from Edward I's time till Elizabeth's, and a survey of the reign of
Edward III, show the virgate to consist of twenty-four acres[485]. The
virgate _de ware_ corresponds usually to one-half of the real virgate; I
say usually, because in one case it is reckoned to contain eighteen
acres in the place of twenty-four mentioned in the rolls and the later
survey[486]. Such 'acre ware' are to be found, though rarely, in other
manors besides those of Ely minster[487]. The contradiction between the
documents may be taken at first glance to originate in a difference
between the number of acres under actual tillage and the number of acres
comprised in the holding: perhaps the first reckoning leaves out the
fallow. This explanation has been tried by Mr. O. Pell, the present
owner of one of the Ely manors: he started it in connexion with an
etymology which brought together 'ware' and 'warectum': on this
assumption twelve acres appeared instead of twenty-four, because the
fallow of the two-field system was left out of the reckoning. But this
reading of the evidence does not seem satisfactory; it is one-sided at
the least. Why should the holding from which the 'warectum' has been
left out get its name from the 'warectum'? How is one to explain either
from the two-field or from the three-field system the case when eighteen
'acre ware' correspond to twenty-four common acres, or the even more
perplexing case when eighteen acres of 'ware' go to the full land and
twelve to half-a-full land[488]? In fact, this last instance does not
admit of any explanation from natural conditions, because in the natural
course of things twelve will never come to be one-half of eighteen.
Thus we are driven to assume that the 'ware' reckoning is an artificial
one: as such it could, of course, treat the half-holdings in a different
way from the full holdings. Now the only possible basis for an
artificial distribution seems to be the assessment of rents and labour.
Starting from this assumption we shall have to say that the virgate 'de
wara' represents a unit of assessment in which twelve really existing
acres have been left out of the reckoning. The assessment stretches only
over half the area occupied by the real holding.
The conclusion we have come to is corroborated by the meaning of the
word 'wara.' The etymological connexion with _warectum_ is not sound;
the meaning may be best brought out by a comparison with those instances
where the word is used without a direct reference to the number of
acres. We often find the expression 'ad inwaram' in Domesday, and it
corresponds to the plain 'ad gildam Regis.' If a manor is said to
contain seven hides _ad inwaram_, it is meant that it pays to the king
for seven hides, although there may have been more than seven
ploughteams and ploughlands. Another expression of like import is, 'pro
sextem hidis se defendit erga Regem.' The Burton Cartulary, the earliest
survey after Domesday, employed the word 'wara' in the same sense[489].
It is not difficult to draw the inference from the above-mentioned
facts: the etymological connexion for 'wara' is to be sought in the
German word for defence--'wehre.' The manor defends itself or answers to
the king for seven hides. The expression could get other special
significations besides the one discussed: we find it for the poll-tax,
by which a freeman defends himself in regard to the state[490], and for
the weir, which prevents the fish from escaping into the river[491].
[Hides of assessment.]
This origin and use of the term is of considerable importance, because
it shows the artificial character of the system and its close connexion
with the taxation by the State. This is a disturbing element which ought
to be taken into account by the side of the agrarian influence. There
cannot be the slightest doubt that the assessment started from actual
facts, from existing agrarian conditions and divisions. The hide, the
yardland, the oxgang existed not only in the geld-rolls, but in fact and
on the ground. But in geld-rolls they appeared with a regularity they
did not possess in real fact; the rolls express all modifications in the
modes of farming and all exemptions, not in the shape of any
qualification or lighter assessment of single plots, but by way of
striking off from the number of these plots, or from the number of acres
in them; the object which in modern times would be effected by the
registration of a 'rateable value' differing from the 'actual value' was
effected in ancient times by the registration of a 'rateable size'
differing from the 'actual size'; lastly, the surveys and rolls of
assessment do not keep time with the actual facts, and often reflect, by
their figures and statistics, the conditions of bygone periods. The
hides of the geld or of the 'wara' tend to become constant and rigid: it
is difficult for the king's officers to alter their estimates, and the
people subjected to the tax try in every way to guard against novelties
and encroachments. The real agrarian hide-area is changing at the same
time because the population increases, new tenements are formed, and new
land is reclaimed.
We find at every step in our records that the assessment and the
agrarian conditions do not coincide. If a manor has been given to a
convent in free almoign (in liberam et perpetuam eleemosynam), that is,
free from all taxes and payments to the State, there is no reason to
describe it in units of assessment, and in fact such property often
appears in manorial records without any 'hidation' or reckoning of
knight-fees[492]. The Ramsey Cartulary tells us that the land in Hulme
was not divided into hides and virgates[493]. There are holdings, of
course, and they are equal, but they are estimated in acres. When the
hidation has been laid on the land and taxes are paid from it, the
smaller subdivisions are sometimes omitted: the artificial system of
taxation does not go very deep into details. Even if most part of the
land has been brought under the operation of that system, some plots are
left which do not participate in the common payments, and therefore are
said to be 'out of the hide[494].' Such being the case, there can be no
wonder that one of the Ramsey manors answers to the king for ten hides,
and to the abbot for eleven and a-half[495].
It is to be noted especially, that although in a few cases a difference
is made between the division for royal assessment and for the manorial
impositions, in the great majority of cases no such difference exists,
and the duties in regard to the king and to the lord are reckoned
according to the same system of holdings. On the manors of Ely, for
instance, the 12 _acreware_[496] form the basis of all the reckoning of
rents and work. And so if the royal assessment appear with the features
of an artificial fiscal arrangement, the same observation has to be
extended to the manorial assessment; and thus we reach by another way
the same conclusion which we drew from an analysis of the single holding
and of its component parts. No doubt the whole stands in close relation
to the reality of cultivation and land-holding, but the rigidity,
regularity, and correctness of the system present a necessary contrast
to the facts of actual life. As the soil could not be made to fit into
geometrical squares, even so the population could not remain without
change from one age to the other within the same boundaries. Thus in
course of time the plough-land of 160 and 180 acres, which is the
plough-land of practical farming, appears by the side of the statutory
hide of 120 acres; and so again inside every single holding there comes
up the contrast between its real conformation and distribution, and the
outward form it assumed in regard to the king, the lord, and the
steward.
[Rules of inheritance.]
The inquiry as to the relation between the holding and the population on
it is, of course, of the utmost importance for a general estimate of the
arrangement. From a formal point of view the question is soon solved: on
the one hand, the holding of the villain remains undivided and entire;
it does not admit of partition by sale or descent; on the other, the
will of the lord may alter, if necessary, the natural course of
inheritance and possession; the socage tenure is often free from the
first of these limitations, and always free from the second. The
indivisibility of villain tenements is chiefly conspicuous in the law of
inheritance: all the land went to one of the sons if there were several;
very often the youngest inherited; and this custom, to which mere chance
has given the name of Borough English, was considered as one of the
proofs of villainage[497]. It is certainly a custom of great importance,
and probably it depended on the fact that the elder brothers left the
land at the earliest opportunity, and during their father's life. Where
did they go? It is easy to guess that they sought work out of the manor,
as craftsmen or labourers; that they served the lord as servants,
ploughmen, and the like; that they were provided with holdings, which
for some reason did not descend to male heirs; that they were endowed
with some demesne land, or fitted out to reclaim land from the waste. We
may find for all these suppositions some supporting quotation in the
records. And still it would be hard to believe that the entire increase
of population found an exit by these by-paths. If no exit was found, the
brothers had to remain on their father's plot, and the fact that they
did so can be proved, if it needs proof, from documents[498]. The unity
of the holding was not disturbed in the case; there was no division, and
only the right heir, the {hestiopamôn} as they said in Sparta, had to
answer for the services; the lord looked to him and no further; but in
point of fact the holding contained more than one family, and perhaps
more than one household. However this may be, in regard to the lord the
holding remained one and undivided. This circumstance draws a sharp line
between the feudal arrangement of most counties and that which prevailed
in Kent. The gavelkind or tributary tenure there was subjected to equal
partition among the heirs.
[Kentish system.]
Let us take a Kentish survey, the Black Book of St. Augustine's,
Canterbury, for instance: it describes the peasant holdings in a way
which differs entirely from other surveys. It begins by stating what
duties lie on each _sulung_, that is, on the Kentish ploughland
corresponding to the hide of feudal England. No regular sub-divisions
corresponding to the virgates and bovates are mentioned, and the
reckoning starts not from separate tenements, but from their combination
into sulungs[499]. Then follow descriptions of the single sulungs, and
it turns out that every one of them consists of a very great number of
component parts, because the progeny of the original holders has
clustered on them, and parcelled them up in very complicated
combinations[500]. The portions are sometimes so small, that an
independent cultivation of them would have been quite impossible. In
order to understand the description it must be borne in mind that the
fact of the tenement being owned by several different persons in
definite but undivided shares did not preclude farming in common; while
on the other hand, in judging of the usual feudal arrangement of
holdings we must remember that the artificial unity and indivisibility
of the tenement may be a mere screen behind which there exists a complex
mass of rights sanctioned by morality and custom though not by law. The
surveys of the Kentish possessions of Battle Abbey are drawn up on the
same principle as those of St. Augustine's; the only difference is, that
the individual portions are collected not in sulungs, but in yokes
(_juga_)[501].
And so we have in England two systems of dividing the land of the
peasant, of regulating its descent and its duties. In one case the
tenant-right is connected with rigid holdings descending to a single
heir; in another the tenements get broken up, and the heirs club
together in order to meet the demands of the manorial administration.
The contrast is sharp and curious enough. How is one to explain, that in
conditions which were more or less identical, the land was sometimes
partitioned and sometimes kept together, the people were dispersed in
some instances and kept together in others?
[Connecting links between the two systems.]
Closer inspection will show that however sharp the opposition in law may
have been, in point of husbandry and actual management the contrast was
not so uncompromising. Connecting links may be found between the two.
The Domesday of St. Paul's, for instance, is compiled in the main in the
usual way, but one section of it--the description of the Essex manors of
Kirby, Horlock, and Thorpe--does not differ from the Kentish surveys in
anything but the terminology[502]. The services are laid on hides, and
not on the actual tenements. Each hide includes a great number of plots
which do not fall in with any constant subdivisions of the same kind as
the virgates and bovates. Some of these plots are very small, all are
irregular in their formation. It happens that one and the same person
holds in several hides. In one word, the Kentish system has found a way
for some unexplained reason into the possessions of St. Paul's, and we
find subjected to it some Essex manors which do not differ much in their
husbandry arrangements from other properties in Essex, and have no claim
to the special privileges of Kentish soil.
Once apprised of the possible existence of such intermediate forms, we
shall find in most surveys facts tending to connect the two
arrangements. The Gloucester Cartulary, for instance, mentions virgates
held by four persons[503]. The plots of these four owners are evidently
brought together into a virgate for the purpose of assessing the
services. Two peasants on the same virgate are found constantly. It
happens that one gets the greater part of the land and is called the
heir, while his fellow appears as a small cotter who has to co-operate
in the work performed by the virgate[504]. Indications are not wanting
that sometimes virgates crumbled up into cotlands, bordlands, and
crofts. The denomination of some peasants in Northumberland is
characteristic enough--they are 'selfoders,' obviously dwelling
'self-other' on their tenements[505]. On the other hand, it is to be
noticed that the gavelkind rule of succession, although enacting the
partibility of the inheritance, still reserves the hearth to the
youngest born, a trace of the same junior right which led to Borough
English.
[United and partible holdings.]
I think that upon the whole we must say that in practice the very marked
contrast between the general arrangement of the holdings and the Kentish
one is more a difference in the way of reckoning than in actual
occupation, in legal forms than in economical substance. The general
arrangement admitted a certain subdivision under the cover of an
artificial unity which found its expression in the settlement of the
services and of the relations with the lord[506]. The English case has
its parallel on the Continent in this respect. In Alsace, for instance,
the holding was united under one 'Träger' or bearer of the manorial
duties; but by the side of him other people are found who participate
with this official holder in the ownership and in the cultivation[507].
The second system also kept up the artificial existence of the higher
units, and obvious interests prevented it from leading to a
'morcellement' of land into very small portions in practice. The
economic management of land could not go as far as the legal partition.
In practice the subdivision was certainly checked, as in the virgate
system, by the necessity of keeping together the cattle necessary for
the tillage. Virgates and bovates would arise of themselves: it was not
advantageous to split the yoke of two oxen, the smallest possible
plough; and co-heirs had to think even more when they inherited one ox
with its ox-gang of land. The animal could not be divided, and this
certainly must have stopped in many cases the division of land. When the
documents speak of plots containing two or three acres, it must be
remembered that such crofts and cotlands occur also in the usual system,
and I do not see any reason to suppose that the existence of such
subdivided rights always indicated a real dispersion of the economic
unit: they may have stood as a landmark of the relative rights of joint
occupiers. I do not mean to say, of course, that there was no real basis
for the very great difference which is assumed by the two ways of
describing the tenements. No doubt the hand of the lord lay heavier on
the Essex people than on the Kentish men, their occupation and usage of
the land was more under the control of the lord, and assumed therefore
an aspect of greater regularity and order. Again, the legal privileges
of the Kentish people opened the way towards a greater development of
individual freedom and a certain looseness of social relations. Still it
would be wrong to infer too much from this formal opposition. In both
cases the centripetal and the centrifugal tendency are working against
each other in the same way, although one case presents the stronger
influence of disruptive forces, and the other gives predominance to the
collective power. In the history of socage and military tenure the
system of unity arose gradually, and without any sudden break, out of
the system of division. The intimate connexion between both forms is
even more natural in peasant ownership, which had to operate with small
plots and small agricultural capital, and therefore inclined naturally
towards the artificial combination of divided interests. In any case
there is no room in practice for the rigid and consequent operation of
either rule of ownership, and, if so, there is no actual basis for the
inference that the unification of the holding is to be taken as a direct
consequence of a servile origin of the tenement and a sure proof of it.
Unification appears on closer inspection as a result of economic
considerations as well as of legal disabilities, and for this reason the
tendency operated in the sphere of free property as well as among the
villains; among these last it could not preclude the working of the
disruptive elements, but in many cases only hid them from sight by its
artificial screen of rigid holdings.
[The holding and the team.]
We have seen that the size and distribution of the holdings are
connected with the number of oxen necessary for the tillage, and its
relation to the full plough. The hide appears as the ploughland with
eight oxen, the virgate corresponds to one yoke of oxen, and the bovate
to the single head. It need not be added that such figures are not
absolutely settled, and are to be accepted as approximate terms. The
great heavy plough drawn by eight or ten oxen is certainly often
mentioned in the records, especially on demesne land[508]. The dependent
people, when they have to help in the cultivation of the demesne, club
together in order to make up full plough teams[509]. It is also obvious
that the peasantry had to associate for the tilling of their own land,
as it was very rare for the single shareholder to possess a sufficient
number of beasts to work by himself. But it must be noticed that
alongside of the unwieldy eight-oxen plough we find much lighter ones.
Even on the demesne we may find them drawn by six oxen. And as for the
peasantry, they seem to have very often contented themselves with
forming a plough team of four heads[510]. It is commonly supposed by the
surveys that the holder of a yardland joins with one of his fellows to
make up the team. This would mean on the scale of the hide of 120 acres
that the team consists of four beasts[511]. It happens even that a full
plough is supposed to belong to two or three peasants, of which every
one is possessed only of five acres; in such cases there can be no talk
of a big plough; it is difficult to admit even a four-oxen team, and
probably those people only worked with one yoke or pair of beasts[512].
Altogether it would be very wrong to assume in practice a strict
correspondence between the size of the holding and the parts of an
eight-oxen plough. The observation that the usual reckoning of the hide
and of its subdivisions, according to the pattern of the big team,
cannot be made to fit exactly with the real arrangement of the teams
owned by the peasantry--this firmly established observation leads us
once more to the conclusion that the system of equal holdings had become
very artificial in process of time and was determined rather by the
relation between the peasants and the manorial administration than by
the actual conditions of peasant life. Unhappily the artificial features
of the system have been made by modern inquirers the starting-point of
very far-reaching theories and suppositions. Seebohm has proposed an
explanation of the intermixture of strips as originating in the practice
of coaration. He argues that it was natural to divide the land tilled by
a mixed plough-team among the owners of the several beasts and
implements. Every man got a strip according to a certain settled and
ever-recurring succession. I do not pretend to judge of the value of the
interesting instances adduced by Seebohm from Celtic practices, but
whatever the arrangement in Wales or Ireland may have been, the
explanation does not suit the English case. A doubt is cast on it
already by the fact that such a universal feature as the intermixture of
strips appears connected with the occurrence of such a special
instrument as the eight-oxen plough. The intermixture is quite the same
in Central Russia, where they till with one horse, and in England where
more or less big ploughs were used. The doubt increases when we reflect
that if the strips followed each other as parts of the plough-team, the
great owners would have been possessed of compact plots. Every holder of
an entire hide would have been out of the intermixture, and every
virgater would have stood in conjunction with a sequence of three other
tenants. Neither the one nor the other inference is supported by the
facts. The observation that the peasantry are commonly provided with
small ploughs drawn by four beasts ruins Seebohm's hypothesis entirely.
One would have to suppose that most fields were divided into two parts,
as the majority of the tenements are yardlands with half a team. The
only adequate explanation of the open-field intermixture has been given
above; it has its roots in the wish to equalise the holdings as to the
quantity and quality of the land assigned to them in spite of all
differences in the shape, the position, and the value of the soil.
[Terms of exceptional occurrence.]
Before I leave the question as to the holdings of the feudal peasantry,
I must mention some terms which occur in different parts of England,
although more rarely than the usual hides and virgates[513]. Of the
_sulung_ I have spoken already. It is a full ploughland, and 200 acres
are commonly reckoned to belong to it. The name is sometimes found out
of Kent, in Essex for instance. In Tillingham, a manor of St. Paul's of
London, we come across six hides 'trium solandarum[514].' The most
probable explanation seems to be that the hide or unit of assessment is
contrasted with the _solanda_ or _sulland_ (sulung), that is with the
actual ploughland, and two hides are reckoned as a single solanda.
The yokes (juga) of Battle Abbey[515] are not virgates, but carucates,
full ploughlands. This follows from the fact that a certain virgate
mentioned in the record is equivalent only to one fourth of the yoke. In
the Norfolk manors of Ely Minster we find _tenmanlands_[516] of 120
acres in the possession of several copartitioners, _participes_. The
survey does not go into a detailed description of tenements and rights,
and the reckoning of services starts from the entire combination, as in
the Kentish documents. A commonly recurrent term is _wista_[517]; it
corresponds to the virgate: a great wista is as much as half-a-hide, or
two virgates[518].
The terms discussed hitherto are applied to the tenements in the fields
of the village; but besides those there are other names for the plots
occupied by a numerous population which did not find a place in the
regular holdings. There were craftsmen and rural labourers working for
the lord and for the tenants; there were people living by gardening and
the raising of vegetables. This class is always contrasted with the
tenants in the fields. The usual name for their plots is cote, cotland,
or cotsetland. The so-called _ferdel_, or fourth part of a virgate, is
usually mentioned among them because there are no plough-beasts on
it[519]. Another name for the _ferdel_ is _nook_[520]. Next come the
crofters, whose gardens sometimes extend to a very fair size--as much as
ten acres in one enclosed patch[521]. The cotters proper have generally
one, two, and sometimes as much as five acres with their dwellings; they
cannot keep themselves on this, as a rule, and have to look out for more
on other people's tenements. A very common name for their plots is
'lundinaria[522],' 'Mondaylands,' because the holders are bound to work
for the lord only one day in the week, usually on Monday. Although the
absence of plough-beasts, of a part in coaration, and of shares in the
common fields draws a sharp line between these men and the regular
holders, our surveys try sometimes to fit their duties and plots into
the arrangement of holdings; the cotland is assumed to represent one
sixteenth or even one thirty-second part of the hide[523]. The
Glastonbury Survey of 1189 contains a curious hint that two cottages are
more valuable than one half-virgate: two cotlands were ruined during the
war, and they were thrown together into half a virgate, although it
would have been more advantageous to keep two houses on them, that is
two households[524]. The _bordae_ mentioned by the documents are simply
cottages or booths without any land belonging to them[525]. The manorial
police keeps a look-out that such houses may not arise without licence
and service[526].
A good many terms are not connected in any way with the general
arrangement of the holdings, but depend upon the part played by the land
in husbandry or the services imposed upon it. To mention a few among
them. A plot which has to provide cheese is called Cheeseland[527].
Those tenements which are singled out for the special duty of carrying
the proceeds of the manorial cultivation get the name of
_averlands_[528]. The terms _lodland_[529], _serland_[530] or _sharland_,
are also connected with compulsory labour. The first is taken from the
duty to carry loads or possibly to load waggons; the second may be
employed in reference to work performed with the sithe or reap-hook. A
plot reserved for the leader of the plough-team, the akerman, was
naturally called _akermanland_[531]. Sometimes, though rarely, the
holding gets its name from the money rent it has to pay. We hear of
_denerates_[532] and _nummates_[533] of land in this connexion.
[Conclusions.]
All these variations in detail do not avail to modify to any
considerable extent the chief lines on which the medieval system of
holdings is constructed. I presume that the foregoing exposition has
been sufficient to establish the following points:--
1. The principle upon which the original distribution depended was that
of equalizing the shares of the members of the community. This led to
the scattering and to the intermixture of strips. The principle did not
preclude inequality according to certain degrees, but it aimed at
putting all the people of one degree into approximately similar
conditions.
2. The growth of population, of capital, of cultivation, of social
inequalities led to a considerable difference between the artificial
uniformity in which the arrangement of the holdings was kept and the
actual practice of farming and ownership.
3. The system was designed and kept working by the influence of communal
right, but it got its artificial shape and its legal rigidity from the
manorial administration which used it for the purpose of distributing
and collecting labour and rent.
4. The holdings were held together as units, not merely by the superior
property of the lord, but by economic considerations. They were breaking
up under the pressure of population, not merely in the case of free
holdings, but also where the holdings were servile.
CHAPTER II.
RIGHTS OF COMMON.
[Meadows.]
The influence of the village community is especially apparent in respect
of that portion of the soil which is used for the support of cattle. The
management of meadows is very interesting because it presents a close
analogy to the treatment of the arable, and at the same time the
communal features are much more clearly brought out by it. We may take
as an instance a description in the Eynsham Survey. The meadow in
Shifford is divided into twelve strips, and these are distributed among
the lord and the tenantry, but they are not apportioned to any one for
constant ownership. One year the lord takes all the strips marked by
uneven numbers, and the next year he moves to those distinguished by
even numbers[534]. The tenants divide the rest according to some settled
rotation. Very often lots are drawn to indicate the portions of the
several households[535]. It must be added that the private right of the
single occupiers does not extend over the whole year: as in the case of
the arable all inclosures fall after the harvest, so in regard to
meadows the separate use, and the boundaries protecting it, are upheld
only till the mowing of the grass: after the removal of the hay the soil
relapses into the condition of undivided land. The time of the 'defence'
extends commonly to 'Lammas day:' hence the expression 'Lammas-meadow'
to designate such land. It is hardly necessary to insist on the great
resemblance between all these features and the corresponding facts in
the arrangement of the arable. The principle of division is supplied by
the tendency to assign an equal share to every holding, and the system
of scattered strips follows as a necessary consequence of the principle.
The existence of the community as a higher organising unit is shewn in
the recurrence of common use after the 'defence,' and in the fact that
the lord is subjected to the common rotation, although he is allowed a
privileged position in regard to it. The connexion in which the whole of
these rights arises is made especially clear by the shifting ownership
of the strips: private right appears on communal ground, but it is
reduced to a _minimum_ as it were, has not settled down to constant
occupation, and assumes its definite shape under the influence of the
idea of equal apportionment. Of course, by the side of these communal
meadows we frequently find others that were owned in severalty.
[Allotment of pasture.]
Land for pasture also occurs in private hands and in severalty, but such
cases are much rarer[536]. Sometimes the pasture gets separated and put
under 'defence' for one part of the year, and merges into communal
ownership afterwards[537]. But in the vast majority of cases the pasture
is used in common, and none of the tenants has a right to fence it in or
to appropriate it for his own exclusive benefit. It ought to be noted,
that the right to send one's cattle to the pasture on the waste, the
moors, or in the woods of a manor appears regularly and intimately
connected with the right to depasture one's cattle on the open fields of
the village[538]. Both form only different modes of using communal soil.
As in the case of arable and meadow the undivided use cannot be
maintained and gets replaced by a system of equalised shares or
holdings, so in the case of pasture the faculty of sending out any
number of beasts retires before the equalisation of shares according to
certain modes of 'stinting' the common. We find as an important manorial
arrangement the custom to 'apportion' the rights of common to the
tenements, that is to decide in the manorial Court, mostly according to
verdicts of juries, how many head of cattle, and of what particular
kind, may be sent to the divers pasture-grounds of the village by the
several holdings. From time to time these regulations are revised. One
of the Glastonbury Surveys contains, for instance, the following
description from the 45th year of Henry III. Each hide may send to the
common eighteen oxen, sixteen cows, one bull, the offspring of the cows
of two years, two hundred sheep with four rams, as well as their
offspring of one year, four horses and their offspring of one year,
twenty swine and their offspring of one year[539]. According to a common
rule the only cattle allowed to use the village pasture was that which
was constantly kept in the village, _levant e couchant en le maner_. In
order to guard against the fraudulent practice of bringing over strange
cattle and thus making money at the expense of the township, it was
required sometimes that the commonable cattle should have wintered in
the manor[540].
[Pasture an adjunct to holding.]
These last rules seem at first sight difficult of explanation: one does
not see in what way the bringing in of strange cattle could damage the
peasantry of the village, as nobody could drive more than a certain
number of beasts to the common, and as the overburdening of it depended
entirely on the excess of this number, and not on the origin of the
beasts. And so one has to look to something else besides the
apprehension that the common would get overburdened, in order to find a
suitable explanation of the rule. An explanation is readily supplied by
the notion that the use of the common was closely connected with the
holding. Strange cattle had nothing to do with the holding, and were to
be kept off from the land of the community; it is as representatives of
a community whose territory has been invaded that the individual
commoners have cause to complain. In fact, the common pasture, as well
as the meadows, were thought of merely as a portion of the holding. The
arrangements did not admit of the same certainty or rather of the same
kind of determination as the division of the arable, but the main idea
which regulated the latter was by no means cut short in its operation,
if one may say so: it was not bound up with the exact measurement of
arable acres. The holding was the necessary agricultural outfit of a
peasant family, and of this outfit the means of feeding the cattle were
quite as important a part as the means of raising crops. It is only
inaccurately that we have been speaking of a virgate of 30 acres, and of
a ploughland of 180 or 160. The true expression would be to speak of a
virgate of 30 acres of arable and the corresponding rights to pasture
and other common uses. And the records, when they want to give something
like a full description, do not omit to mention the 'pertinencia,' the
necessary adjuncts of the arable. The term is rather a vague one, quite
in keeping with the rights which, though tangible enough, cannot be cut
to so certain a pattern as in the case of arable[541]. And for this
reason the laxer right had to conform to the stricter one, and came to
be considered as appendant to it.
[Common in special cases.]
We have considered till now the different aspects assumed by common of
pasture, when it arises within the manor, and as a consequence of the
arrangement of its holdings. But this is not the only way in which
common of pasture may arise. It may originate in an express and special
grant by the lord either to a tenant or to a stranger[542]; it may also
proceed from continuous use from time beyond legal memory[543]: it must
have been difficult in many cases to prevent strangers from establishing
such a claim by reason of long occupation in some part of a widely
stretching moor or wood pasture[544]. It was not less difficult in such
cases to draw exact boundaries between adjoining communities, and we
find that large tracts of country are used as a common pasture-ground by
two villages, and even by more[545]. Neighbours deem it often
advantageous to establish a certain reciprocity in this respect[546]. By
special agreement or by tacit allowance lords and tenants intercommon
on each other's lands: this practice extends mostly to the waste only,
but in some cases the arable and meadow are included after the removal
of the crop and of the hay. The procedure of the writ 'quo jure' was
partly directed to regulate these rights and to prevent people from
encroaching wantonly upon their neighbours[547]. When land held in one
fee or one manor was broken up for some reason into smaller units, the
rights of pasture were commonly kept up according to the old
arrangements[548].
These different modes of treating the pasture present rather an
incongruous medley, and may be classified in several ways and deduced
from divers sources.
[Modern classification of commons.]
The chief distinctions of modern law are well known: 'Common Appendant
is the right which every freehold tenant of the manor possesses, to
depasture his commonable cattle, levant and couchant on his freehold
tenement anciently arable, on the wastes of the manor, and originally on
all (common) pasture in the manor. Common appurtenant on the other hand
is against common right, becoming appurtenant to land either by long
user or by grant express or implied. Thus it covers a right to common
with animals that are not commonable, such as pigs, donkeys, goats, and
geese; or a right to common claimed for land not anciently arable, such
as pasture, or land reclaimed from the waste within the time of legal
memory, or for land that is not freehold, but copyhold[549].' Common in
gross is a personal right to common pasture in opposition to the
praedial rights. Mr. Scrutton has shown from the Year Books that these
terms and distinctions emerge gradually during the fourteenth century,
and appear substantially settled only in Littleton's treatise. Bracton
and his followers, Fleta and Britton, do not know them. These are
important facts, but they hardly warrant the inferences which have been
drawn from them. The subject has been in dispute in connexion with
discussions as to the free village community. Joshua Williams, in his
Rights of Common[550], had assumed common appendant to originate in
ancient customary right bestowed by the village community and not by the
lord's grant; Scrutton argues that such a right is not recognised by the
documents. He lays stress on the fact, that Bracton speaks only of two
modes of acquiring common, namely, express grant by the lord, and long
usage understood as constant sufferance on the part of the lord
amounting to an express grant. But this is only another way of saying
that Bracton's exposition is based on feudal notions, that his land law
is constructed on the principle 'nulle terre sans seigneur,' and that
every tenement, as well as every right to common, is considered in
theory as granted by the lord of the manor. It may be admitted that
Bracton does not recognise just that kind of title which later lawyers
knew as appendancy, does not recognise that a man can claim common by
showing merely that he is a freeholder of the manor. Unless he relies on
long continued user, he must rely upon grant or feoffment. But the
distinction between saying 'I claim common because I am a freeholder of
the manor' and saying 'I claim common because I or my ancestors have
been enfeoffed of a freehold tenement of the manor and the right of
common passed by the feoffment,' though it may be of juristic interest
and even of some practical importance as regulating the burden of proof
and giving rise to canons for the interpretation of deeds, is still a
superficial distinction which does not penetrate deeply into the
substance of the law. On the whole we find that the freeholder of
Bracton's time and of earlier times does normally enjoy these rights
which in after time were described as 'appendant' to his freehold; and
it is well worth while to ask whether behind the general assumptions of
feudal theory there do not lie certain data which, on the one hand,
prepare and explain later terminology, and are connected, on the other,
with the historical antecedents of the feudal system.
A little reflection will show that the divisions of later law did not
spring into being merely as results of legal reasoning and casuistry.
Indeed, from a lawyer's point of view, nothing can be more imperfect
than a classification which starts from three or four principles of
division seemingly not connected with each other. Common appendant
belongs to a place anciently arable, common appurtenant may belong to
land of any kind; the first is designed for certain beasts, the second
for certain others; one is bound up with freehold, the other may go with
copyhold; in one case the right proceeds from common law, in the other
from 'specialty.' One may reasonably ask why a person sending a cow to
the open fields or to the waste from a freehold tenement can claim
common appendant, and his neighbour sending a cow to the same fields
from a copyhold has only common appurtenant. Or again, why does a plot
of arable reclaimed from the waste confer common appurtenant, and
ancient arable common appendant? Or again, why are the goats or the
swine of a tenement sent to pasture by virtue of common appurtenant, and
the cows and horses by virtue of common appendant? And, above all, what
have the several restrictions and definitions to do with each other?
Such a series of contrasted attributes defies any attempt to simplify
the rules of the case according to any clearly defined principle: it
seems a strange growth in which original and later elements, important
and secondary features, are capriciously brought together.
In order to explain these phenomena we have to look to earlier and not
to later law. What seems arbitrary and discordant in modern times,
appears clear and consistent in the original structure of the manor.
[Foundations of later classification in early law.]
The older divisions may not be so definitely drawn and so developed as
the later, but they have the advantage of being based on fundamental
differences of fact. Even when the names and terms do not appear well
settled, the subject-matter arranges itself according to some natural
contrasts, and it is perhaps by too exclusive study of names and terms
that Mr. Scrutton has been prevented from duly appreciating the
difference in substance. He says of the end of the thirteenth century:
'In the reports about this time it seems generally to be assumed that if
the commoner cannot show an _especialté_ or special grant or title, he
must show "fraunc tenement en la ville a ques commune est appendant."
Thus we have the question:--"Coment clamez vous commune? Com appendant,
ou par especialté,' while Hengham, J. says: 'prescription de terre est
assez bon especialté"' (p. 50). This is really the essence of all the
rules regarding common of pasture, and, what is more, the contrast
follows directly from arrangements which did not come into use in the
fourteenth century, but were in full work at the time of Bracton and
long before it. What is called in later law common appendant, appears as
the normal adjunct to the holding, that is, to a share in the system of
village husbandry. If a bovate is granted to a person, so much of the
rights of pasture as belongs to every bovate in the village is presumed
to be granted with the arable. 'So much as belongs to every bovate in
the village;' this means, that the common depends in this case on a
general arrangement of the pasture in the village. Such an arrangement
exists in every place; it is regulated by custom and by the decisions of
the manorial court or halimote, it extends equally over the free and
over the unfree land, over the waste, the moor and wood, and over the
fallow; it admits a certain number and certain kinds of beasts, and
excludes others. Only because such a general arrangement is supposed to
exist, is the right to common treated in so vague a manner; the
documents present, in truth, only a reference to relations which are
substantiated in the husbandry system of the manor. But the right of
common may exceed these lines in many ways: it may be joined to a
tenement which lies outside the manorial system, or a plot freshly
reclaimed from the waste, or to a holding belonging to some other manor.
It may admit a greater number and other kinds of beasts than those which
were held commonable in the usual course of manorial husbandry. In such
cases the right to pasture had to proceed from some special agreement or
grant, and, of course, had to be based on something different from the
ordinary reference to the existing system of common husbandry. If there
was no deed to go by, such a right could only be established by long
use.
[Bracton's doctrine.]
I think that all this must follow necessarily as soon as the main fact
is admitted, that common is normally the right to pasture of a
shareholder of the manor. The objection may be raised, that such _a
priori_ reasoning is not sufficient in the case, because the documents
do not countenance it by their classification. Would the objection be
fair? Hardly, if one does not insist on finding in Bracton the identical
terms used in Coke upon Littleton. It is true that Bracton speaks of
common in general, and not of common appendant, appurtenant, and in
gross, but the right of common which he treats as normal appears to be
very peculiar on a closer examination of his rules. It is praedial and
not personal; to begin with, it is always thought of as belonging to a
tenement[551]. What is more, it cannot belong to a tenement reclaimed
from the waste[552], and in this way the requirement of 'ancient
arable' is established, that is, the pasture is considered as one of the
rights conceded to the original shares of a manorial community. The use
of the open field outside the time of reasonable defence[553] is
primarily meant, and the common pasture appears from this point of view
as one of the stages in the process of common farming. To make up the
whole, the right to common is defined by a 'quantum pertinet[554],'
which has a sense only in connexion with the admeasurement of claims
effected by the internal organisation of the manor. Such is evidently
the normal arrangement presupposed by Bracton's description, and his
only fault is, that he does not distinguish with clearness between the
consequences of the normal arrangement, and of grants or usurpations
which supplement and modify it. It must be remembered that he only gives
the substantive law about common rights in the course of a discussion of
the pleadings in actions 'quo jure' and assizes of pasture. If we
compare with Bracton's text the rules and decisions laid down in the
legal practice of the thirteenth century, we shall find that the same
facts are implied by them. They all suppose a contrast between
'intrinsec' and 'forinsec' claims to common, that is between the rights
of those who are members of the manorial group, and the rights, if any,
of those who are outside it, and again a contrast between the normal
rights of commoners and any more extensive rights acquired by special
grant or agreement. Only the freeholders are protected in the enjoyment
of their commons; only the freeholders are protected in the enjoyment of
their tenements; but their claims are based on arrangements in which the
unfree land participates in everything with the free. It may be added
that litigation mostly arises from the adjustment of 'forinsec' claims
under the writ 'Quo jure.' The intercommoning between neighbours gives
rise to a good many disputes, and is much too frequent to be considered,
as it was by later law, a mere 'excuse for trespassing[555].' This
common 'pur cause de vicinage' may be a relic of a time when adjoining
villages formed a part of a higher unit of some kind, of the Mark, of a
hundred, for example. It may be explained also by the difficulty of
setting definite boundaries in wide tracts of moor and forest. However
this may be, its constant occurrence forms another germ of a necessary
contrast between the two classes which afterwards developed into common
appendant and common appurtenant. It could not be brought under the same
rules as those which flowed from the internal arrangement of the manor.
A special difficulty attended it as to admeasurement: the customary
treatment of other holdings could not in this case serve as a standard.
The very laxity of the principle naturally gave occasion to very
different interpretations and deductions. And so we are justified in
saying, that the chief distinctions of later law are to be found in
their substance in the thirteenth century, and that although a good deal
of confusion occurs in details, the earlier documents give even better
clues than the later to the reasons which led to the well-known
classification.
[Restrictions on the lord as to common pasture.]
Common appendant, if we may use the modern term for the sake of brevity,
is indissolubly connected with the system of husbandry followed by the
village community. A very noticeable feature of it is, that, in one
sense, it towers over the lord of the manor as well as over the tenants.
Of course, legally the lord is considered as the owner of the
waste[556], but even from the point of view of pure law his ownership is
restricted by his own grants. In so much as he has conceded freehold
tenements to certain persons, he is bound by his own deed not to
withhold from these persons the necessary adjuncts of such tenements,
and especially the rights of pasture bound up with them. The free
tenants share with the lord, if he wants to turn his common pasture to
some special and lucrative use; if, for instance, strangers are admitted
to it for money, one part of the proceeds goes to the tenantry[557].
Again, the lord may not overburden the common, and sometimes freeholders
try their hand at litigation against the lord on the ground that he
sends his cattle to some place where they ought not to go[558]. The
point cannot be overlooked, that the lord of the manor appears subjected
to certain rules set up by custom and common decision in the meetings of
his tenantry. The number and kind of beasts which may come to the common
from his land is fixed, as well as the number that may come from the
land of a cottager[559]. The freeholders alone can enforce the rule
against him, but it is set up not by the freeholders, but by the entire
community of the manor, and practically by the serfs more than by the
freeholders, because they are so much more numerous.
[Approvement.]
As the common of pasture appears as an outcome of a system of husbandry
set up by the village community, so every change in the use of the
pasture ought in the natural course to proceed from a decision of this
community. Such a change may be effected in one of two manners: the
customary rotation of crops may be altered, or else a part of the waste
may be reclaimed for tillage. In the first case, a portion of the open
arable and meadow, which ought to have been commonable at a certain
time, ceases to be so; in the second, the right to send cattle to the
waste is stinted in so much as the arable is put under defence, or the
land is used for the construction of dwellings. By the common law the
free tenants alone could obtain a remedy for any transgression in this
respect. I have mentioned already that suits frequently arose when the
old-fashioned rotation of crops was modified in accordance with the
progress of cultivation. As to the right of approving from the waste,
the relative position of lord and tenants was for a long time
debateable, and, as everybody knows, the lord was empowered to approve
by the Statute of Merton of 20 Henry III, with the condition that he
should leave sufficient pasture to his free tenants according to the
requirements of their tenements. The same power was guaranteed by the
Statute of Westminster II against the claims of neighbours. It has been
asked whether, before the Statute of Merton, the lord had power to
enclose against commoners, if he left sufficient common to satisfy their
rights. Bracton's text in the passage where he treats of the Statute is
distinctly in favour of the view that this legislative enactment did
actually alter the common law, and that previously it was held that a
lord could not approve without the consent of his free-tenants[560].
Turning to the practice of the thirteenth-century courts, we find that
the lawyers were rather doubtful as to this point. In a case of 1221 the
jurors declare, that although the defendant has approved about two acres
of land from the waste where the plaintiff had common, this latter has
still sufficient pasture left to him. And thereupon the plaintiff
withdraws[561]. In 1226 a lord who has granted pasture everywhere,
'ubique,' and has inclosed part of it, succumbs in a suit against his
tenant, and we are led to suppose that if the qualification 'ubique' had
been absent, his right of approvement would have been maintained. It
must be noticed, however, that the marginal note in Bracton's Note-book
does not lay stress on the 'ubique,' and regards the decision as
contrary to the law subsequently laid down by the Constitution of
Merton[562]. In a case of 1292 one of the counsel for the defendant took
it for granted that the Statute of Merton altered the previously
existing common law[563]. The language of the Statutes themselves is
certainly in favour of such a construction: in the Merton Constitution
it is stated as a fact that the English magnates were prevented from
making use of their manors[564], and the Westminster Statute is as
positive as to neighbours; 'multi domini hucusque ... impediti
extiterunt,' etc. It seems hardly possible to doubt that the enactments
really represent a new departure, although the way towards it had been
prepared by the collision of interests in open Court. The condition
negatively indicated by the documents in regard to the time before these
enactments cannot be dismissed by the consideration that the lord would
derogate from his grant by approving. Although a single trial may bear
directly on the relation between the lord and only one of the tenants
or a few of them, every change in the occupation of the land touches all
those who are members of the manorial community. The removal of
difficulties as to approvement was, before the Statute of Merton, not a
question of agreement between two persons, but a question as to the
relative position of the lord and of the whole body of the tenantry. The
lord might possibly settle with every tenant singly, but it seems much
more probable that he brought the matter, when it arose, before the
whole body with which the management of the village husbandry rested,
that is, before the halimote, with its free and unfree tenants. In any
case, the influence of the free tenants as recognised by the common law
was decisive, and hardly to be reconciled with the usual feudal notions
as to the place occupied by the lord in the community. It must be noted
that even that order of things which came into being in consequence of
the Statute contains an indirect testimony as to the power of the
village community. The Act requires the pasture left to the free tenants
to be sufficient, and it may be asked at once, what criterion was there
of such a sufficiency, if the number of beasts was not mentioned in the
instrument by which the common was held. Of course, in case of dispute,
a jury had to give a verdict about it, but what had the jury to go by?
It was not the actual number of heads of cattle on a tenement that could
be made the starting-point of calculation. Evidently the size of the
holding, and its relation to other holdings, had to be taken into
account. But if so, then the legal admeasurement had to conform to the
customary admeasurement defined by the community[565]. And so again the
openly recognised law of the kingdom had to be set in action according
to local customs, which in themselves had no legally binding force.
[Rights of common in woods, etc.]
Besides the land regularly used for pasture, the cattle of the village
were sent grazing along the roads[566] and in the woods[567]. These
last were mostly used for feeding swine. In other respects, also, the
wood was subjected to a treatment analogous to that of the pasture land.
The right of hunting was, of course, subjected to special regulations,
which have to be discussed from the point of view of forest law. But,
apart from that right, the wood was managed by the village community
according to certain customary rules. Every tenant had a right to fell
as many young trees as he wanted to keep his house and his hedges in
order[568]. It sometimes happens, that the lord and the homage enter
into agreement as to the bigger trees, and for every trunk taken by the
lord the tenantry are entitled to take its equivalent[569]. Whenever the
right had to be apportioned more or less strictly, the size of the
holdings was always the main consideration[570].
It would be strange to my purpose to discuss the details of common of
estovers, of turbary[571], or of fishery. The chief points which touch
upon the problems of social origins are sufficiently apparent in the
subject of pasture. The results of our investigation may, I think, be
summed up under the following heads:--
1. Rights of common are either a consequence of the communal husbandry
of the manor, or else they proceed from special agreement or long use.
2. The legal arrangement of commons depends on a customary arrangement,
in which free and unfree tenants take equal part[572].
3. The feudal theory of the lord's grant is insufficient to explain the
different aspects assumed by rights of common, and especially the
opposition between lord and free commoners.
CHAPTER III.
RURAL WORK AND RENTS.
[Arrangement of work and rent.]
Our best means of judging of the daily work in an English village of the
thirteenth century is to study the detailed accounts of operations and
payments imposed on the tenants for the benefit of a manorial lord.
Surveys, extents, or inquisitions were drawn up chiefly for the purpose
of settling these duties, and the wealth of material they afford enables
us to form a judgment as to several interesting questions. It tells
directly of the burden which rural workmen had to bear in the
aristocratical structure of society; it gives indirectly an insight into
all the ramifications of labour and production since the dues received
by the lord were a kind of natural percentage upon all the work of the
tenants; the combination of its details into one whole affords many a
clue to the social standing and history of the peasant classes of which
we have been treating.
[Operations:]
[Ploughing.]
Let us begin by a survey of the different kinds of labour duties
performed by the dependent holdings which clustered round the manorial
centre. Foremost stands ploughing and the operations connected with it.
The cultivation of the demesne soil of a manor depended largely on the
help of the peasantry. By the side of the ploughs and plough-teams owned
by the lord himself, the plough-teams of his villains are made to till
his land, and manorial extents commonly mention that the demesne portion
has to be cultivated by the help of village customs, 'cum
consuetudinibus villae[573].' The duties of every householder in this
respect are reckoned up in different ways. Sometimes every dependent
plough has its number of acres assigned to it, and the joint owners of
its team are left to settle between themselves the proportions in which
they will have to co-operate for the performance of the duty[574]. In
most cases the 'extent' fixes the amount due from each individual
holder. For instance, every virgater is to plough one acre in every
week. This can only mean that one acre of the lord's land is reckoned on
every single virgate in one week, without any reference to the fact that
only one part of the team is owned by the peasant. If, for example,
there were four virgaters to share in the ownership of the plough, the
expression under our notice would mean that every team has to plough
four acres in the week[575]. But the ploughs may be small, or the
virgaters exceptionally wealthy, and their compound plough team may have
to cultivate only three acres or even less. The lord in this case
reckons with labour-weeks and acres, not with teams and days-work. A
third possibility would be to base the reckoning on the number of days
which a team or a holder has to give to the lord[576]. A fourth, to lay
on the imposition in one lump by requiring a certain number of acres to
be tilled, or a certain number of days of ploughing[577]. It must be
added, that the peasants have often to supplement their ploughing work
by harrowing, according to one of these various systems of
apportionment[578].
The duties here described present only a variation of the common
'week-work' of the peasant, its application to a certain kind of labour.
They could on occasion be replaced by some other work[579], or the lord
might lose them if the time assigned for them was quite unsuitable for
work[580]. There is another form of ploughing called _gafol-earth_,
which has no reference to any particular time-limits. A patch of the
lord's land is assigned to the homage for cultivation, and every tenant
gets his share in the work according to the size of his holding.
Gafol-earth is not only ploughed but mostly sown by the peasantry[581].
A third species of ploughing-duty is the so-called _aver-earth_ or
_grass-earth_. This obligation arises when the peasants want more
pasture than they are entitled to use by their customary rights of
common. The lord may grant the permission to use the pasture reserved
for him, and exacts ploughings in return according to the number of
heads of cattle sent to the pasturage[582]. Sometimes the same
imposition is levied when more cattle are sent to the commons than a
holding has a right to drive on them[583]. It is not impossible that in
some cases the very use of rights of common was made dependent on the
performance of such duties[584]. A kindred exaction was imposed for the
use of the meadows[585]. Local variations have, of course, to be taken
largely into account in all such matters: the distinction between
gafol-earth and grass-earth, for instance, though drawn very sharply in
most cases, gets somewhat confused in others.
Manorial records mention a fourth variety of ploughing-work under the
name of _ben-earth_, _precariae carucarum_. This is extra work in
opposition to the common ploughings described before[586]. It is assumed
that the subject population is ready to help the lord for the tillage of
his land, even beyond the customary duties imposed on it. It sends its
ploughs three or four times a year 'out of love,' and 'for the asking.'
It may be conjectured how agreeable this duty must have been in reality,
and indeed by the side of its common denominations, as boon-work and
asked-work, we find much rougher terms in the speech of some
districts--it is deemed _unlawenearth_ and _godlesebene_[587]. It must
be said, however, that the lord generally provided food on these
occasions, and even went so far as to pay for such extra work.
Other expressions occur in certain localities, which are sometimes
difficult of explanation. _Lentenearth_[588], in the manors of Ely
Minster, means evidently an extra ploughing in Lent. The same Ely
records exhibit a ploughing called _Filstnerthe_ or _Filsingerthe_[589],
which may be identical with the Lentenearth just mentioned: a
_fastnyngseed_[590] occurs at any rate which seems connected with the
ploughing under discussion. The same extra work in Lent is called
_Tywe_[591] in the Custumal of Bleadon, Somersetshire. When the
ploughing-work is paid for it may receive the name of _penyearth_[592].
The Gloucester survey speaks of the extra cultivation of an acre called
Radacre, and the Ely surveys of an extra rood 'de Rytnesse[593].' I do
not venture to suggest an explanation for these last terms; and I need
not say that it would be easy to collect a much greater number of such
terms in local use from the manorial records. It is sufficient for my
purpose to mark the chief distinctions.
[Reaping.]
All the other labour-services are performed more or less on the same
system as the ploughings, with the fundamental difference that the
number of men engaged in them has to be reckoned with more than the
number of beasts. The extents are especially full of details in their
descriptions of reaping or mowing corn and grass; the process of
thrashing is also mentioned, though more rarely. In the case of meadows
(_mederipe_) sometimes their dimensions are made the basis of
calculation, sometimes the number of work-days which have to be employed
in order to cut the grass[594]. As to the corn-harvest, every holding
has its number of acres assigned to it[595], or else it is enacted that
every house has to send so many workmen during a certain number of
days[596]. If it is said that such and such a tenant is bound to work on
the lord's field at harvest-time with twenty-eight men, it does not mean
that he has to send out such a number every time, but that he has to
furnish an amount of work equivalent to that performed by twenty-eight
grown-up labourers in one day; it may be divided into fourteen days'
work of two labourers, or into seven days' of four, and so forth.
Harvest-time is the most pressing time in the year for rural work; it is
especially important not to lose the opportunity presented by fine
weather to mow and garner in the crop before rain, and there may be only
a few days of such weather at command. For this reason extra labour is
chiefly required during this season, and the village people are
frequently asked to give extra help in connexion with it. The system of
_precariae_ is even more developed on these occasions than in the case
of ploughing[597]. All the forces of the village are strained to go
through the task; all the houses which open on the street send their
labourers[598], and in most cases the entire population has to join in
the work, with the exception of the housewives and perhaps of the
marriageable daughters[599]. The landlord treats the harvesters to food
in order to make these exertions somewhat more palatable to them[600].
These 'love-meals' are graduated according to a set system. If the men
are called out only once, they get their food and no drink: these are
'dry requests.' If they are made to go a second time, ale is served to
them (_precariae cerevisiae_). The mutual obligations of lords and
tenantry are settled very minutely[601]; the latter may have to mow a
particular acre with the object of saying 'thanks' for some concession
on the part of the lord[602]. The same kind of 'requests' are in use for
mowing the meadows. The duties of the peasants differ a great deal
according to size of their holdings and their social position. The
greater number have of course to work with scythe and sickle, but the
more wealthy are called upon to supervise the rest, to ride about with
rods in their hands[603]. On the other hand, a poor woman holds a
messuage, and need do no more than carry water to the mowers[604].
[Carriage duties.]
A very important item in the work necessary for medieval husbandry was
the business of carrying produce from one part of the country to the
other. The manors of a great lord were usually dispersed in several
counties, and even in the case of small landowners it was not very easy
to arrange a regular communication with the market. The obligation to
provide horses and carts gains in importance accordingly[605]. These
_averagia_ are laid out for short and long distances, and the peasants
have to take their turn at them one after the other[606]. They were
bound to carry corn to London or Bristol according to the size of their
holdings[607]. Special importance was attached to the carriage of the
'farm,' that is of the products designed for the consumption of the
lord[608]. In some surveys we find the qualification that the peasants
are not obliged to carry anything but such material as may be put on the
fire, i.e. used in the kitchen[609]. In the manor itself there are many
carriage duties to be performed: carts are required for the grain, or
for spreading the dung. The work of loading and of following the carts
is imposed on those who are not able to provide the implements[610]. And
alongside of the duties of carriage by horses or oxen we find the
corresponding manual duty. The 'averagium super dorsum suum' falls on
the small tenant who does not own either horses or oxen[611]. Such small
people are also made to drive the swine or geese to the market[612]. The
lord and his chief stewards must look sharp after the distribution of
these duties in order to prevent wealthy tenants from being put to light
duties through the protection of the bailiffs, who may be bribed for the
purpose[613].
It would be hard to imagine any kind of agricultural work which is not
imposed on the peasantry in these manorial surveys. The tenants mind the
lord's ploughs, construct houses and booths for him, repair hedges and
dykes, work in vineyards, wash and shear the sheep[614], etc. In some
cases the labour has to be undertaken by them, not in the regular run of
their services, but by special agreement, as it were, in consideration
of some particular right or permission granted to them[615]. Also it
happens from time to time that the people of one manor have to perform
some services in another, for instance, because they use pasture in that
other manor[616]. Such 'forinsec' labour may be due even from tenants of
a strange lord. By the side of purely agricultural duties we find such
as are required by the political or judicial organisation of the manor.
Peasants are bound to guard and hang thieves, to carry summonses and
orders, to serve at the courts of the superior lord and of the
king[617].
[Classification of labour-services.]
In consequence of the great variety of these labour-services they had to
be reduced to some chief and plain subdivisions for purposes of a
general oversight. Three main classes are very noticeable
notwithstanding all variety: the _araturae_, _averagia_, and
_manuoperationes_. These last are also called _hand-dainae_ or
_daywerke_[618]; and the records give sometimes the exact valuation of
the work to be performed during a day in every kind of labour. Sometimes
all the different classes are added up under one head for a general
reckoning, and without any distinction as to work performed by hand or
with the help of horse or ox. Among the manors of Christ Church,
Canterbury[619], for instance, we find at Borle '1480 work-days divided
into 44 weeks of labour from the virgaters, 88 from the cotters, 320
from the tofters holding small tenements in the fields.' In Bockyng the
work-days of 52 weeks are reckoned to be 3222. It must be added, that
when such a general summing up appears, it is mostly to be taken as an
indication that the old system based on labour in kind is more or less
shaken. The aim of throwing together the different classes of work is to
get a general valuation of its worth, and such a valuation in money is
commonly placed by the side of the reckoning. The single day-work yields
sometimes only one penny or a little more, and the landlord is glad to
exchange this cumbrous and cheap commodity for money-rents, even for
small ones.
[Payments in kind.]
We must now proceed to examine the different forms assumed by payments
in kind and money: they present a close parallel to the many varieties
of labour-service. Thirteenth-century documents are full of allusions to
payments in kind--that most archaic form of arranging the relations
between a lord and his subjects. The peasants give corn under different
names, and for various reasons: as _gavelseed_, in addition to the
money-rent paid for their land[620]; as _foddercorn_, of oats for the
feeding of horses[621]; as _gathercorn_, which a manorial servant has
to collect or gather from the several homesteads[622]; as _corn-bole_, a
best sheaf levied at harvest-time[623]. Of other provender supplied to
the lord's household honey is the most common, both in combs and in a
liquid form[624]. Ale is sometimes brewed for the same purpose, and
sometimes malt and _braseum_ furnished as material to be used in the
manorial farm[625]. Animals are also given in rent, mostly sheep, lambs,
and sucking-pigs. The mode of selection is peculiar in some cases. In
the Christ Church (Canterbury) manor of Monckton each sulung has to
render two lambs, and the lord's servant has the right to take those
which he pleases, whereupon the owner gets a receipt, evidently in view
of subsequent compensation from the other co-owners of the sulung[626].
If no suitable lamb is to be found, eight pence are paid instead of it
as mail (_mala_). On one of the estates of Gloucester Abbey a freeman
has to come on St. Peter's and Paul's day with a lamb of the value of
12_d._, and besides, 12 pence in money are to be hung in a purse on the
animal's neck[627]. Poultry is brought almost everywhere, but these
prestations are very different in their origin. The most common reason
for giving capons is the necessity for getting the warranty of the
lord[628]: in this sense the receipt and payment of the rent constitute
an acknowledgment on the part of the lord that he is bound to protect
his men, and on the part of the peasant that he is the lord's villain.
'Wood hens' are given for licence to take a load of wood in a forest;
similar prestations occur in connexion with pasture and with the use of
a moor for turbary[629]. At Easter the peasantry greet their protectors
by bringing eggs: in Walton, a manor of St. Paul's, London, the custom
is said to exist in honour of the lord, and at the free discretion of
the tenants[630]. Besides all those things which may be 'put on the fire
and eaten,' rents in kind sometimes take the shape of some object for
permanent use, especially of some implement necessary for the
construction of the plough[631]. Trifling rents, consisting of flowers
or roots of ginger, are sometimes imposed with the object of testifying
to the lord's seignory; but the payers of such rents are generally
freeholders[632]. I need not dwell long on the enumeration of all the
strange prestations which existed during the Middle Ages, and partly
came down to our own time: any reader curious about them will find an
enormous mass of interesting material in Hazlitt's 'Tenures of Land and
Customs of Manors.'
[Money-payments.]
In opposition to labour and rents in kind we find a great many payments
in money. Some of these are said in as many words to have stept into the
place of labour services; of mowing, carrying, making hedges[633], etc.
The same may be the case in regard to produce: _barlick-silver_ is paid
instead of barley, _fish-silver_ evidently instead of fish,
_malt-silver_ instead of malt; a certain payment instead of salt, and so
on[634]. But sometimes the origin of the money rent is more difficult to
ascertain. We find, for instance, a duty on sheep, which is almost
certainly an original imposition when it appears as _fald-silver_. Even
so the _scythe-penny_ from every scythe, the _bosing-silver_ from every
horse and cart, the _wood-penny_, probably for the use of wood as fuel,
must be regarded as original taxes and not quit-rents or
commutation-rents[635]. _Pannage_ is paid in the same way for the swine
grazing in the woods[636]. _Ward-penny_ appears also in connexion with
cattle, but with some special shade of meaning which it is difficult to
bring out definitely; the name seems to point to protection, and also
occurs in connexion with police arrangements[637].
[Classification of money payments.]
I must acknowledge that in a good many cases I have been unable to find
a satisfactory explanation for various terms which occur in the records
for the divers payments. An attentive study of local usages will
probably lead to definite conclusions as to most of them[638]. From a
general point of view it is interesting to notice, that we find already
in our records some attempts to bring all the perplexing variety of
payments to a few main designations. Annual rents are, of course,
reckoned out under the one head of 'census.' Very obvious reasons
suggested the advisability of computing the entire money-proceed yielded
by the estate[639]. It sometimes happens that the general sum made up in
this way, fixed as it is at a constant amount, is used almost as a name
for a complex of land[640]. A division of rents into old and new ones
does not require any particular explanation[641]. But several other
subdivisions are worth notice. The rent paid from the land often appears
separately as _landgafol_ or _landchere_. It is naturally opposed to
payments that fall on the person as poll taxes[642]. These last are
considered as a return for the personal protection guaranteed by the
lord to his subjects. Of the contrast between _gafol_ as a customary
rent and _mál_ as a payment in commutation I have spoken already, and I
have only to add now, that _gild_ is sometimes used in the same sense
as _mál_[643]. Another term in direct opposition to _gafol_ is the Latin
_donum_[644]. It seems to indicate a special payment imposed as a kind
of voluntary contribution on the entire village. To be sure, there was
not much free will to be exercised in the matter; all the dependent
people of the township had to pay according to their means[645]. But the
tax must have been considered as a supplementary one in the same sense
as supplementary boon-work. It may have been originally intended in some
cases as an equivalent for some rights surrendered by the lord, as a
_mál_ or _gild_, in fact[646]. In close connexion with the _donum_ we
find the _auxilium_[647], also an extraordinary tax paid once a year,
and distinguished from the ordinary rent. It appears as a direct
consequence of the political subjection of the tenantry[648]: it is, in
fact, merely an expression of the right to tallage. Our records mention
it sometimes as apportioned according to the number of cattle owned by
the peasant, but this concerns only the mode of imposition of the duty
and hardly its origin[649]. As I have said already, the _auxilium_ is
in every respect like the _donum_. One very characteristic trait of both
taxes is, that they are laid primarily on the whole village, which is
made to pay a certain round sum as a body[650]. The burden is divided
afterwards between the several householders, and the number of cattle,
and more particularly of the beasts of plough kept on the holding, has
of course to be taken into account more than anything else. But the
manorial administration does not much concern itself with these details:
the township is answerable for the whole sum.
[Payments to State and Church.]
It is to be added that the payment is sometimes actually mentioned as a
political one in direct connexion with 'forinsec' duties towards the
king. The burdens which lay on the land in consequence of the
requirements of State and Church appear not unfrequently in the
documents. Among those the _scutage_ and _hidage_ are the most
important. The first of these taxes is so well known that I need not
stop to discuss it. It may be noticed however that in relation to the
dependent people scutage is not commonly spoken of; the tax was levied
under this name from the barons and the armed gentry, and was mostly
transmitted by these to the lower strata of society under some other
name, as an aid or a tallage. Hidage is historically connected with the
old English Danegeld system, and in some cases its amount is set out
separately from other payments, and the tenants of a manor have to pay
it to the bailiff of the hundred and not to the steward. A smaller
payment called _ward-penny_ is bound up with it, probably as a
substitute for the duty of keeping watch and ward[651]. In the north the
hidage is replaced by _cornage_[652], a tax which has given rise to
learned controversy and doubt; it looks like an assessment according to
the number of horns of cattle, _pro numero averiorum_, as our Latin
extents would say. The Church has also an ancient claim on the help of
the faithful; the _churchscot_ of Saxon times often occurs in the feudal
age under the name of _churiset_ or _cheriset_[653]. It is mostly paid
in kind, but may be found occasionally as a money-rent.
[Questions suggested by a survey of work and rents.]
A survey of the chief aspects assumed by the work and the payments of
the dependent people was absolutely necessary, in order to enable us to
understand the descriptions of rural arrangements which form the most
instructive part of the so-called extents. But every survey of terms and
distinctions (even if it were much more detailed than the one I am able
to present), will give only a very imperfect idea of the obligations
actually laid on the peasantry. It must needs take up the different
species one by one and consider them separately, whereas in reality they
were meant to fit together into a whole. On the other hand it may create
a false impression by enumerating in systematic order facts which
belonged to different localities and perhaps to different epochs. To
keep clear of these dangers we have to consider the deviations of
practical arrangements from the rules laid down in the books and the
usual combinations of the elements described.
[Cases where the usual order was not adhered to.]
When one reads the careful notices in the cartularies as to the number
of days and the particular occasions when work has to be performed for
the lord, a simple question is suggested by the minuteness of detail.
What happened when this very definite arrangement came into collision
with some other equally exacting order? One of the three days of
week-work might, for instance, fall on a great feast; or else the
weather might be too bad for out-of-doors work. Who was to suffer or to
gain by such casualties? The question is not a useless one. The manorial
records raise it occasionally, and their ways of settling it are not
always the same. We find that in some cases the lord tried to get rid of
the inconveniences occasioned by such events, or at least to throw one
part of the burden back on the dependent population; in Barling, for
instance, a manor of St. Paul's, London[654], of two feasts occurring in
one week and even in two consecutive weeks, one profits to the villains
and the other to the lord; that is to say, the labourer escapes one
day's work altogether. But the general course seems to have been to
liberate the peasants from work both on occasion of a festival and if
the weather was exceptionally inclement[655]. Both facts are not without
importance: it must be remembered that the number of Church festivals
was a very considerable one in those days. Again, although the stewards
were not likely to be very sentimental as to bad weather, the usual test
of cold in case of ploughing seems to have been the hardness of the
soil--a certain percentage of free days must have occurred during the
winter at least. And what is even more to be considered--when the men
were very strictly kept to their week-work under unfavourable
circumstances, the landlord must have gained very little although the
working people suffered much. The reader may easily fancy the effects of
what must have been a very common occurrence, when the village
householders sent out their ploughs on heavy clay in torrents of rain.
The system of customary work on certain days was especially clumsy in
such respects, and it is worth notice that in harvest-time the
landlords rely chiefly on boon-days. These were not irrevocably fixed,
and could be shifted according to the state of the weather. Still the
week-work was so important an item in the general arrangement of
labour-services that the inconveniences described must have acted
powerfully in favour of commutation.
[Relation between the customary system and the arbitrary authority of
the lord.]
Of course, the passage from one system to the other, however desirable
for the parties concerned, was not to be effected easily and at once: a
considerable amount of capital in the hands of the peasantry was
required to make it possible, and another necessary requirement was a
sufficient circulation of money. While these were wanting the people had
to abide by the old labour system. The facts we have been discussing
give indirect proof that there was not much room for arbitrary changes
in this system. Everything seems ruled and settled for ever. It may
happen, of course, that notwithstanding the supposed equality between
the economic strength of the different holdings, some tenants are unable
to fulfil the duties which their companions perform[656]. As it was
noticed before, the shares could not be made to correspond absolutely to
each other, and the distribution of work and payments according to a
definite pattern was often only approximate[657]. Again, the lord had
some latitude in selecting one or the other kind of service to be
performed by his men[658]. But, speaking generally, the settlement of
duties was a very constant one, and manorial documents testify that
every attempt by the lord to dictate a change was met by emphatic
protests on the part of the peasantry[659]. The tenacity of custom may
be gathered from the fact that when we chance to possess two sets of
extents following each other after a very considerable lapse of time,
the renders in kind and the labour-services remain unmodified in the
main[660]. One has to guard especially against the assumption that such
expressions as 'to do whatever he is bid' or 'whatever the lord
commands' imply a complete servility of the tenant and unrestricted
power on the part of the lord to exploit his subordinate according to
his pleasure. Such expressions have been used as a test of the degree of
subjection of the villains at different epochs; it has been contended,
that the earlier our evidence is, the more complete the lord's sway
appears to be[661]. The expressions quoted above may seem at first
glance to countenance the idea, but an attentive and extended study of
the documents will easily show that, save in exceptional cases, the
earlier records are by no means harder in their treatment of the
peasantry than the later. The eleventh century is, if anything, more
favourable to the subjected class as regards the imposition of
labour-services than the thirteenth, and we shall see by-and-by that the
observation applies even more to Saxon times. In the light of such a
general comparison, we have to explain the above-mentioned phrases in a
different way. 'Whatever he is bid' applies to the quality and not to
the quantity of the work[662]. It does not mean that the steward has a
right to order the peasant about like a slave, to tear him at pleasure
from his own work, and to increase his burden whenever he likes. It
means simply that such and such a virgater or cotter has to appear in
person or by proxy to perform his week-work of three days, or two days,
or four days, according to the case, and that it is not settled
beforehand what kind of work he is to perform. He may have to plough, or
to carry, or to dig trenches, or to do anything else, according to the
bidding of the steward. A similar instance of uncertainty may be found
in the expression 'without measure[663]' which sometimes occurs in
extents. It would be preposterous to construe it as an indication of
work to be imposed at pleasure. It is merely a phrase used to suit the
case when the work had to be done by the day and not by a set quantity;
if, for instance, a man had to plough so many times and the number of
acres to be ploughed was not specified. It is true that such vague
descriptions are mostly found in older surveys, but the inference to be
drawn from the fact is simply that manorial customs were developing
gradually from rather indefinite rules to a minute settlement of
details. There is no difference in the main principle, that the
dependent householder was not to be treated as a slave and had a
customary right to devote part of his time to the management of his own
affairs.
[The holdings and the population.]
Another point is to be kept well in view. The whole arrangement of a
manorial survey is constructed with the holding as its basis. The names
of virgaters and cotters are certainly mentioned for the sake of
clearness, but it would be wrong to consider the duties ascribed to them
as aiming at the person. John Newman may be said to hold a virgate, to
join with his plough-oxen in the tillage of twenty acres, to attend at
three boon-days in harvest time, and so forth. It would be misleading to
take these statements very literally and to infer that John Newman was
alone to use the virgate and to work for it. He was most probably
married, and possibly had grown-up sons to help him; very likely a
brother was there also, and even servants, poor houseless men from the
same village or from abroad. Every householder has a more or less
considerable following (_sequela_)[664], and it was by no means
necessary for the head of the family to perform all manorial work in his
own person. He had to appear or to send one workman on most occasions
and to come with all his people on a few days--the boon-days namely. The
description of the _precariae_ is generally the only occasion when the
extents take this into account, namely, that there was a considerable
population in the village besides those tenants who were mentioned by
name[665]. I need not point out, that the fact has an important meaning.
The medieval system, in so far as it rested on the distribution of
holdings, was in many respects more advantageous to the tenantry than
to the lord. It was superficial in a sense, and from the point of view
of the lord did not lead to a satisfactory result; he did not get the
utmost that was possible from his subordinates. The factor of population
was almost disregarded by it, households very differently constituted in
this respect were assumed to be equal, and the tenacity of custom
prevented an increase of rents and labour-services in proportion to the
growth of resource and wealth among the peasants. Some attempts to get
round these difficulties are noticeable in the surveys: they are mostly
connected with the regulation of boon-works. But these exceptional
measures give indirect proof of the very insufficient manner in which
the question was generally settled.
[Stages in the arrangement of duties.]
The liabilities of the peasantry take the shape of produce, labour, and
money-rents. Almost in every manor all three kinds of impositions are to
be found split up into a confusing variety of customary obligations. It
is out of the question to trace at the present time, with the help of
fragmentary and later material, what the original ideas were which
underlie these complicated arrangements. But although a reduction to
simple guiding principles accounting for every detail cannot be
attempted, it is easy to perceive that chance and fancy were not
everything in these matters. The several duties are brought together so
as to form a certain whole, and some of the aims pursued in the grouping
may be perceived even now.
[Farm-system.]
The older surveys often show the operation of a system which is adapted
by its very essence to a very primitive state of society; it may be
called the farm-system, the word _farm_ being used in the original sense
of the Saxon _feorm_, food, and not in the later meaning of fixed rent,
although these two meanings appear intimately connected in history. The
_farm_ is a quantity of produce necessary for the maintenance of the
lord's household during a certain period: it may be one night's or
week's or one fortnight's farm accordingly. A very good instance of the
system may be found in an ancient cartulary of Ramsey, now at the
British Museum, which though compiled in the early thirteenth century,
constantly refers to the order of Henry II's time. The estates of the
abbey were taxed in such a way as to yield thirteen full farms of a
fortnight, and each of these was to be used for the maintenance of the
monks through a whole month. The extension of the period is odd enough,
and we do not see its reason clearly; it followed probably on great
losses in property and income at the time of Abbot Walter. However this
may be, the thirteen fortnights' farms were made to serve all the year
round, and to cover fifty-two weeks instead of twenty-six. A very minute
description of the single farm is given as it was paid by the manor of
Ayllington (i.e. Elton). Every kind of produce is mentioned: flour and
bread, beer and honey, bacon, cheese, lambs, geese, chicken, eggs,
butter, &c. The price of each article is mentioned in pence, and it is
added, that four pounds have to be paid in money. By the side of the
usual farm there appears a 'lent' farm with this distinction, that only
half as much bacon and cheese has to be given as usual, and the
deficiency is to be made up by a money payment. Some of the manors of
the abbey have to send a whole farm, some others only one half, that is
one week's farm, but all are assessed to pay sixteen pence for every
acre to be used as alms for the poor[666]. This description may be taken
as a standard one, and it would be easy to supplement it in many
particulars from the records of other monastic institutions. The records
of St. Paul's, London, supply information as to a distribution of the
farms at the close of the eleventh century, which covered fifty-two
weeks, six days, and five-sixths of a day[667]. The firmae of St.
Alban's were reckoned to provide for the fifty-two weeks of the year,
and one in advance[668]. The practice of arranging the produce-rents
according to farms was by no means restricted to ecclesiastical
management; it occurs also on the estates of the Crown, and was
probably in use on those of lay lords generally. Every person a little
conversant with Domesday knows the _firmae unius noctis_, at which some
of the royal manors were assessed[669]. In the period properly called
feudal, that is in the twelfth and thirteenth centuries, the
food-revenue had very often become only the starting-point for a
reckoning of money-rents. The St. Alban's farms, for example, are no
longer delivered in kind; their equivalent in money has taken their
place. But the previous state of things has left a clear trace in the
division by weeks. Altogether it seems impossible to doubt that the
original idea was to provide really the food necessary for consumption.
One cannot help thinking that such practice must have come from the very
earliest times when a Saxon or a Celtic chieftain got his income from
the territory under his sway by moving from one place to another with
his retinue and feeding on the people for a certain period. This very
primitive mode of raising income and consuming it at the same time may
occasionally strike our eye even in the middle of the thirteenth
century. The tenants of the Abbot of Osulveston in Donington and Byker
are bound to receive their lord during one night and one day when he
comes to hold his court in their place. They find the necessary food and
beverage for him and for his men, provender for his horses, and so
forth. If the abbot does not come in person, the homage may settle about
a commutation of the duties with the steward or the sergeant sent for
the purpose. If he refuses to take money, they must bring everything in
kind[670].
[Decay of the farm-system.]
This is an exceptional instance: generally the farm has to be sent to
the lord's residence, probably after a deduction for the requirements of
the manor in which it was gathered. When it had reached this stage the
system is already in decay. It is not only difficult to provide for the
carriage, but actually impossible to keep some of the articles from
being spoilt. Bread sent to Westminster from some Worcestershire
possession of the minster would not have been very good when it reached
its destination. The step towards money-payments is natural and
necessary.
Before leaving the food-rents we must take notice of one or two more
peculiarities of this system. It is obvious that it was arranged from
above, if one may use the expression. The assessment does not proceed in
this case by way of an estimate of the paying or producing strength of
each unit subjected to it, _i.e._ of each peasant household. The result
is not made up by multiplying the revenue from every holding by the
number of such holdings. The whole reckoning starts from the other end,
from the wants of the manorial administration. The requirements of a
night or of a week are used as the standard to which the taxation has to
conform. This being the case, the correspondence between the amount of
the taxes and the actual condition of the tax-payer was only a very
loose one. Manors of very different size were brought into the same
class in point of assessment, and the rough distinctions between a whole
farm and half-a-farm could not follow at all closely the variety of
facts in real life, even when they were supplemented by the addition of
round sums of money.
[Assessment under the farm-system.]
These observations lead at once to important questions; how was the
farm-assessment distributed in every single manor, and what was its
influence on the duties of the single householder? It seems hardly
doubtful, to begin with, that the food-rent changed very much in this
respect. Originally, when the condition of things was more or less like
the Osulvestone example, the farm must have been the result of
co-operation on the part of all the householders of a township, who had
to contribute according to their means to furnish the necessary
articles. But the farm of St. Paul's, London, even when it is paid in
produce, is a very different thing: it is the result of a convention
with the firmarius, or may be with the township itself in the place of a
firmarius[671]. It depends only indirectly on the services and payments
of the peasantry. Part of the flour, bread, beer, etc., may come from
the cultivation of the demesne lands; another portion will appear as the
proceed of week-work and boon-work performed by the villains, and only
one portion, perhaps a very insignificant one, will be levied directly
as produce. In this way there is no break between the food-rent system
and the labour-system. One may still exist for purposes of a general
assessment when the other has already taken hold of the internal
arrangement of the manor.
[Labour-service system.]
Most of our documents present the labour arrangement in full operation.
Each manor may be regarded as an organised group of households in which
the central body represented by the lord's farm has succeeded in
subordinating several smaller bodies to its directing influence. Every
satellite has a movement of its own, is revolving round its own centre,
and at the same time it is attracted to turn round the chief planet, and
is carried away in its path. The constellation is a very peculiar one
and most significant for the course of medieval history. Regarded from
the economic standpoint it is neither a system of great farming nor one
of small farming, but a compound of both. The estate of the lord is in
a sense managed on a great scale, but the management is bound up with a
supply and a distribution of labour which depend on the conditions of
the small tributary households. It would be impossible now-a-days to say
for certain how much of the customary order of week-work and boon-work
was derived from a calculation of the requirements of the manorial
administration, and how much of it is to be regarded as a percentage
taken from the profits of each individual tenant[672]. Both elements
probably co-operated to produce the result: the operations performed for
the benefit of the lord were ordered in a certain way partly because so
many acres had to be tilled, so much hay and corn had to be reaped on
the lord's estate; and partly because the peasant virgaters or cotters
were known to work for themselves in a certain manner and considered
capable of yielding so much as a percentage of their working power. But
although we have a compromise before us in this respect, it must be
noted that the relation between the parts and the whole is obviously
different under the system of labour services from what it was under the
farm-system. It has been pointed out that the food-rent arrangement was
imposed from above without much trouble being taken to ascertain the
exact value and character of the tributary units subjected to it. This
later element is certainly very prominent in the customary
labour-system, which on the whole appears to be constructed from below.
Is it necessary to add that this second form of subjection was by no
means the lighter one? The very differentiation of the burden means that
the aristocratical power of the landlord has penetrated deep enough to
attempt an exact evaluation of details.
[Money-rents system.]
I have had occasion so many times already to speak of the process of
commutation, that there is no call now to explain the reasons which
induced both landlords and peasants to exchange labour for money-rents.
I have only to say now that the same remark which applied to the
passage from produce 'farms' to labour holds good as to the passage from
labour to money payments. There is no break between the arrangements. In
a general way the money assessment follows, of course, as the third mode
of settling the relation between lord and tenant, and we may say that
_rentals_ are as much the rule from the fourteenth century downwards as
_custumals_ are the rule in the thirteenth and earlier centuries. But if
we take up the Domesday of St. Paul's of 1222, or the Glastonbury
Inquest of 1189, or even the Burton Cartulary of the early twelfth
century, in every one of these documents we shall find a great number of
rent-paying tenants[673], and even a greater number of people
fluctuating, as it were, between labour and rent. In some cases peasants
passed directly from the obligation of supplying produce to the payment
of corresponding rents in money. The gradual exemption from labour is
even more apparent in the records. It is characteristic that the first
move is generally a substitution of the money arrangement with the tacit
or even the expressed provision that the assessment is not to be
considered as permanent and binding[674]. It remains at the pleasure of
the lord to go back to the duties in kind. But although such a
retrogressive movement actually takes place in some few cases, the
general spread of money payments is hardly arrested by these exceptional
instances[675].
One more subject remains to be discussed. Is there in the surveys any
marked difference between different classes of the peasantry in point of
rural duties?
[Influence of social distinction on the distribution of duties.]
An examination of the surveys will show at once that the free and the
servile holdings differ very materially as to services, quite apart from
their contrast, in point of legal protection and of casual exactions
such as marriage fines, heriots, and the like. The difference may be
either in the kind of duties or in their quantity. Both may be traced in
the records. If we take first the diversities in point of quality we
shall notice that on many occasions the free tenants are subjected to an
imposition on the same occasion as the unfree, but their mode of
acquitting themselves of it is slightly different--they have, for
instance, to bring eggs when the villains bring hens. The object cannot
be to make the burden lighter; it amounts to much the same, and so the
aim must have been to keep up the distinctions between the two classes.
It is very common to require the free tenants to act as overseers of
work to be performed by the rest of the peasantry. They have to go about
or ride about with rods and to keep the villains in order. Such an
obligation is especially frequent on the boon-days (_precariae_), when
almost all the population of the village is driven to work on the field
of the lord. Sometimes free householders, who have dependent people
resident under them, are liberated from certain payments; and it may be
conjectured that the reason is to be found in the fact that they have to
superintend work performed by their labourers or inferior tenants[676].
All such points are of small importance, however, when compared with the
general opposition of which I have been speaking several times. The free
and the servile holdings are chiefly distinguished by the fact that the
first pay rent and the last perform labour.
[Free and servile duties as rent and labour.]
Whenever we come to examine closely the reason underlying the cases when
the classification into servile and free is adopted, we find that it
generally resolves itself into a contrast between those who have to
serve, in the original sense of the term, and those who are exempted
from actual labour-service. Being dependent nevertheless, these last
have to pay rent. I need not repeat that I am speaking of main
distinctions and not of the various details bound up with them. In order
to understand thoroughly the nature of such diversities, let us take up
a very elaborate description of duties to be performed by the peasants
in the manor of Wye, Kent, belonging to the Abbey of Battle[677]. Of the
sixty-one yokes it contains thirty are servile, twenty-nine are free,
and two occupy an intermediate position. The duties of the two chief
classes of tenants differ in many respects. The servile people have to
pay rent and so have the free, but while the first contribute to make up
a general payment of six pounds, each yoke being assessed at seven
shillings and five-pence, the free people have to pay as much as
twenty-three shillings and seven-pence per yoke. Both sets have to
perform ploughings, reapings, and carriage duties, but the burden of the
servile portion is so much greater in regard to the carriage-work, that
the corresponding yokes sometimes get their very name from it, they are
_juga averagiantia_, while the free households are merely bound to help
a few times during the summer. Every servile holding has a certain
number of acres of wood assigned to it, or else corresponding rights in
the common wood, while the free tenants have to settle separately with
the lord of the manor. And lastly, the relief for every unfree yoke is
fixed at forty pence, and for every free one is equal to the annual
rent. This comparison of duties shows that the peasants called free were
by no means subjected to very light burdens: in fact it looks almost as
if they were more heavily taxed than the rest. Still they were exempted
from the most unpopular and inconvenient labour-services.
Altogether, the study of rural work and rents leads to the same
conclusion as the analysis of the legal characteristics of villainage.
The period from the Conquest onwards may be divided into two stages. In
later times, that is from the close of the thirteenth century downwards,
the division between the two great classes of tenants and tenements, a
contrast strictly legal, is regulated by the material test of the
certainty or uncertainty of the service due, and the formal test of the
mode of conveyance. In earlier times the classification depends
primarily on the economic relation between the manorial centre and the
tributary household, labour is deemed servile, rent held to be free. It
is only by keeping these two periods clearly distinct, that one is
enabled to combine the seemingly conflicting facts in our surveys. If we
look at the most ancient of these documents, we shall have to admit that
a rent-paying holding is free, nevertheless it would be wrong to infer
that when commutation became more or less general, classification was
settled in the same way. A servile tenement no longer became free
because rent was taken instead of labour; it was still held 'at the will
of the lord,' and conveyed by surrender and admittance. When all
holdings were fast exchanging labour for rent, the old notions had been
surrendered and a new basis for classification found in those legal
incidents just mentioned. The development of copyhold belongs to the
later period, copyhold being mostly a rent-paying servile tenure. Again,
if we turn to the earlier epoch we shall have to remember that the
contrast between labour and rent is not to be taken merely as a result
of commutation. Local distinctions are fitted on to it in a way which
cannot be explained by the mere assumption that every settlement of a
rent appeared in the place of an original labour obligation. The
contrast is primordial, as one may say, and based on the fact that the
labour of a subject appears directly subservient to the wants and
arrangements of the superior household, while the payment of rent severs
the connexion for a time and leaves each body to move in its own
direction till the day when the tributary has to pay again.
[Difference in quantity between the impositions of free and unfree
population.]
There can be no doubt also that the more ancient surveys disclose a
difference in point of quantity between free and servile holdings, and
this again is a strong argument for the belief that free socage must not
be considered merely as an emancipated servile tenancy. Where there has
been commutation we must suppose that the labour services cannot have
been more valuable than the money rent into which they were changed. The
free rent into which labour becomes converted is nothing but the price
paid for the services surrendered by the lord. It must have stood
higher, if anything, than the real value of the labour exchanged,
because the exchange entailed a diminution of power besides the giving
up of an economic commodity. No matter that ultimately the quit-rents
turned out to the disadvantage of the lord, inasmuch as the buying
strength of money grew less and less. This was the result of a very long
process, and could not be foreseen at the time when the commutation
equivalents were settled. And so we may safely lay down the general
rule, that when there is a conspicuous difference between the burdens of
assessment of free and unfree tenants, such a difference excludes the
idea that one class is only an emancipated portion of the other, and
supposes that it was from the first a socially privileged one. The
Peterborough Black Book, which, along with the Burton Cartulary,
presents the most curious instance of an early survey, describes the
services of socmen on the manors of the abbey as those of a clearly
privileged tenantry[678]. The interesting point is, that these socmen
are even subjected to week-work and not distinguishable from villains so
far as concerns the quality of their services. Nevertheless the contrast
with the villains appears throughout the Cartulary and is substantiated
by a marked difference in point of assessment: a socman has to work one
or two days in the week when the villain is made to work three or four.
Three main points seem established by the survey of rural work and
rents.
1. Notwithstanding many vexatious details, the impositions to which the
peasantry had to submit left a considerable margin for their material
progress. This system of customary rules was effectively provided
against general oppression.
2. The development from food-farms to labour organisation, and lastly to
money-rents, was a result not of one-sided pressure on the part of the
landlords, but of a series of agreements between lord and tenants.
3. The settlement of the burdens to which peasants were subjected
depended to a great extent on distinctions as to the social standing of
tenants which had nothing to do with economic facts.
CHAPTER IV.
THE LORD, HIS SERVANTS AND FREE TENANTS.
[Medieval rural system.]
Descriptions of English rural arrangements in the age we are studying
always suppose the country to be divided into manors, and each of these
manors to consist of a central portion called the demesne, and of a
cluster of holdings in different tributary relations to this central
portion. Whether we take the Domesday Survey, or the Hundred Rolls, or
the Custumal of some monastic institution, or the extent of lands
belonging to some deceased lay lord, we shall again and again meet the
same typical arrangement. I do not say that there are no instances
swerving from this beaten track, and that other arrangements never
appear in our records. Still the general system is found to be such as I
have just mentioned, and a very peculiar system it is, equally different
from the ancient _latifundia_ or modern plantations cultivated by gangs
of labourers working on a large scale and for distant markets, from
peasant ownership scattered into small and self-dependent households,
and even from the conjunction between great property and farms taken on
lease and managed as separate units of cultivation.
The characteristic feature of the medieval system is the close connexion
between the central and dominant part and the dependent bodies arranged
around it. We have had occasion to speak in some detail of these
tributary bodies--it is time to see how the lord's demesne which acted
as their centre was constituted.
[The home-farm.]
Bracton mentions as the distinguishing trait of the demesne, that it is
set aside for the lord's own use, and ministers to the wants of his
household[679]. Therefore it is sometimes called in English 'Board
Lands.' The definition is not complete, however, because all land
occupied by the owner himself must be included under the name of
demesne, although its produce may be destined not for his personal use,
but for the market. 'Board lands' are only one species of domanial land,
so also are the 'Husfelds' mentioned in a charter quoted by Madox[680].
This last term only points to its relation to the house, that is the
manorial house. And both denominations are noteworthy for their very
incompleteness, which testifies indirectly to the restricted area and to
the modest aims of domanial cultivation. Usually it lies in immediate
connexion with the manorial house, and produces almost exclusively for
home consumption.
This is especially true as to the arable, which generally forms the most
important part of the whole demesne land. There is no exit for a corn
trade, and therefore everybody raises corn for his own use, and possibly
for a very restricted local market. Even great monastic houses hold only
300 or 400 acres in the home farm; very rarely the number rises to 600,
and a thousand acres of arable in one manor is a thing almost unheard
of[681]. Husbandry on a large scale appears only now and then in places
where sheep-farming prevails, in Wiltshire for instance. Exceptional
value is set on the demesne when fisheries are connected with it or salt
found on it[682].
[Bockyng, Essex.]
The following description of Bockyng in Essex[683], a manor belonging to
the Chapter of Christ Church, Canterbury, may serve as an example of the
distribution and relative value of demesne soil. The cartulary from
which it is drawn was compiled in 1309.
The manorial house and close cover five acres. The grass within its
precincts which may serve as food for cattle is valued at 8_d._ a year.
Corn is also sold there to the value of 12_d._ a year, sometimes more
and sometimes less, according to the quantity sown. The orchard provides
fruit and vegetables worth 13_s._ 4_d._ a year; the duty levied from the
swine gives 6_d._
The pigeon-house is worth 4_d._
Two mills, 7_l._ 1_s._ 8_d._
A fishery, 12_d._
A wood called Brekyng Park, containing 480 acres, and the brushwood
there is worth 40_s._
Grass in the wood 12_d._, because it grows only in a few places.
Pannage duty from the swine, 10_s._
Another wood called Le Flox contains 10 acres, and the brushwood is
worth 6_d._
Pannage from the swine, 6_d._
Grass, 6_d._
Arable, in all fields, 510 acres, the acre being assessed at 6_d._ all
round.
Each plough may easily till one acre a day, if four horses and two oxen
are put to it.
Two meadows, one containing eight acres, of which every single acre
yields 4_s._ a year; the other meadow contains seven acres of similar
value.
Pasture in severalty--30 acres, at 12_d._ an acre.
Of these, 16 acres are set apart for oxen and horses, and 14 for cows.
Some small particles of pasture leased out to the tenants, 4_s._
The prior and the convent are lords of the common pasture in Bockyng,
and may send 100 sheep to these commons, and to the fields when not
under crop. Value 20_s._
As important an item in the cultivation of the home farm as the soil
itself is afforded by the plough-teams. The treatises on husbandry give
very minute observations on their composition and management. And almost
always we find the manorial teams supplemented by the _consuetudines
villae_, that is by the customary work performed on different days by
the peasantry[684]. As to this point the close connexion between demesne
and tributary land is especially clear; but after all that has been said
in the preceding chapter it is hardly necessary to add that it was not
only the ploughing-work that was carried on by the lord with the help of
his subjects.
[The demesne and the village.]
As a matter of fact, villages without a manorial demesne or without some
dependence from it are found only exceptionally and in those parts of
England where the free population had best kept its hold on the land,
and where the power of the lord was more a political than an economical
one (Norfolk and Suffolk, Lincoln, Northumberland, Westmoreland,
etc.[685]). And there are hardly any cases at all of the contrary, that
is of demesne land spreading over the whole of a manor. Tillingham, a
manor of St. Paul's, London, comes very near it[686]: it contains 300
acres as home farm, and only 30 acres of villain land. But as a set-off,
a considerable part of the demesne is distributed to small leaseholders.
It must be noted that, as a general rule, the demesne arable of the
manor did not lie in one patch apart from the rest, but consisted of
strips intermixed with those of the community[687]. This fact would show
by itself that the original system, according to which property and
husbandry were arranged in manorial groups, was based on a close
connexion between the domanial and the tributary land. We might even go
further and point out that the mere facilities of intercourse and joint
work are not sufficient to account for this intermixture of the strips
of the lord and of the homage. The demesne land appears in fact as a
share in the association of the village, a large share but still one
commensurate with the other holdings. In two respects this subjection to
a higher unit must necessarily follow from the intermixture of strips:
inasmuch as the demesne consists of plots scattered in the furlongs of
the township, it does not appropriate the best soil or the best
situation, but has to gather its component parts in all the varied
combinations in which the common holdings have to take theirs. And
besides this, the demesne strips were evidently meant to follow the same
course of husbandry as the land immediately adjoining them, and to lapse
into undivided use with such land when the 'defence' season was over.
Separate or private patches exempted from the general arrangement are to
be found on many occasions, but the usual treatment of demesne land in
the thirteenth century is certainly more in conformity with the notion
that the lord's land is only one of the shares in the higher group of
the village community.
['Ministeriality.']
The management of the estate, the collection of revenue, the supervision
of work, the police duties incumbent on the manor, etc., required a
considerable number of foremen and workmen of different kinds[688].
Great lords usually confided the general supervision of their estates
to a _seneschal_, steward or head manager, who had to represent the lord
for all purposes, to preside at the manorial courts, to audit accounts,
to conduct sworn inquests and extents, and to decide as to the general
husbandry arrangements. In every single manor we find two persons of
authority. The bailiff or beadle was an outsider appointed by the lord,
and had to look to the interests of his employer, to collect rents and
enforce duties, to manage the home farm, to take care of the domanial
cattle, of the buildings, agricultural implements, etc. These functions
were often conferred by agreement in consideration of a fixed rent, and
in this case the steward or beadle took the name of _firmarius_[689]. By
his side appears the reeve, or _praepositus_, nominated from among the
peasants of a particular township, and mostly chosen by them[690].
Manorial instructions add sometimes that no villain has a right to hold
aloof from such an appointment, if it is conferred on him[691]. The
reeve acts as the representative of the village community, as well in
regard to the lord as on public occasions. He must, of course, render
help to the steward in all the various duties of the latter. The reeve
has more especially to superintend the performance of labour imposed on
the peasantry. Manorial ploughings, reapings, and the other like
operations are conducted by him, sometimes with the help of the free
tenants in the place. Of the public duties of the reeve we have had
occasion to speak. Four men, acting as representatives of the village,
accompany him.
Next after the reeve comes, on large estates, the _messor_, who takes
charge of the harvest, and sometimes acts as collector of fines imposed
for the benefit of the lord[692]. The _akermanni_ or _carucarii_ are the
leaders of the unwieldy ploughs of the time[693], and they are helped by
a set of drivers and boys who have to attend to the oxen or horses[694].
Shepherds for every kind of cattle are also mentioned[695], as well as
keepers and warders of the woods and fences[696]. In the Suffolk manors
of Bury St. Edmund's we find the curious term _lurard_ to designate a
person superintending the hay harvest[697].
By the side of a numerous staff busy with the economic management of the
estate, several petty officers are found to be concerned with the
political machinery of the manor. The duty to collect the suitors of the
hundred and of the county court is sometimes fulfilled by a special
'turnbedellus[698]'. A 'vagiator' (vadiator?) serves writs and distrains
goods for rents[699]. The carrying of letters and orders is very often
treated as a service imposed on particular tenements. It must be noted
that sometimes all these duties are intimately connected with those of
the husbandry system and imposed on all the officers of the demesne who
own horses[700].
A third category is formed by the house-servants, who divide among
themselves the divers duties of keeping accounts, waiting on the lord
personally, taking charge of the wardrobe, of the kitchen, etc. The
military system and the lack of safety called forth a numerous retinue
of armed followers and guards. All-in-all a mighty staff of
_ministeriales_, as they were called in Germany, came into being. In
England they are termed sergeants and servants, _servientes_. In
Glastonbury Abbey there were sixty-six servants besides the workmen and
foremen employed on the farm[701]. Such a number was rendered necessary
by the grand hospitality of the monastery, which received and
entertained daily throngs of pilgrims. In Bury St. Edmund's the whole
staff was divided into five departments, and in each department the
employments were arranged according to a strict order of
precedence[702].
[Formation of the class.]
The material for the formation of this vast and important class was
supplied by the subject population of the estates. The Gloucester
manorial instruction enjoins the stewards to collect on certain days the
entire grown-up population and to select the necessary servants for the
different callings. It is also enacted that the men should not be left
without definite work, that in case of necessity they should be moved
from one post to the other[703], etc. The requirements of the manorial
administration and of the lord's household opened an important outlet
for the village people. Part of the growing population thus found
employment outside the narrow channel of rural arrangements. The elder
or younger brothers, as it might be, took service at the lord's court.
The husbandry treatises of the thirteenth century go further and mention
hired labourers as an element commonly found on the estate. We find, for
instance, an elaborate reckoning of the work performed by gangs of such
labourers hired for the harvest[704]. In documents styled 'Minister's
Accounts' we may also find proof, that from the thirteenth century
downwards the requirements of the lord's estate are sometimes met by
hiring outsiders to perform some necessary kind of work. These phenomena
have to be considered as exceptional, however, and in fact as a new
departure.
[Remuneration of the class.]
The officers and servants were remunerated in various ways. Sometimes
they were allowed to share in the profits connected with their charges.
The swine-herd of Glastonbury Abbey, for instance, received one
sucking-pig a year, the interior parts of the best pig, and the tails of
all the others which were slaughtered in the abbey[705]. The chief
scullion (_scutellarius_) had a right to all remnants of viands,--but
not of game,--to the feathers and the bowels of geese[706]. Again, all
the household and workmen constantly employed had certain quantities of
food, drink, and clothing assigned to them[707]. Of one of the
Glastonbury clerks we hear that he received one portion (_liberacio_) as
a monk and a second as a servant, and that by reason of this last he was
bound to provide the monastery with a goldsmith[708].
Those of the foremen and labourers of estates who did not belong to the
immediate following of the lord and did not live in his central court
received a gratification of another kind. They were liberated from the
labour and payments which they would have otherwise rendered from their
tenements[709]. The performance of the specific duties of
administration took the place of the ordinary rural work or rent, and in
this way the service of the lord was feudalised on the same principle as
the king's service--it was indissolubly connected with land-holding.
[Importance of the 'ministeriality.']
In manorial extents we come constantly across such exempted tenements
conceded without any rural obligations or with the reservation of a very
small rent. It is important to notice, that such exemptions, though
temporary and casual at first, were ultimately consolidated by custom
and even confirmed by charters. A whole species of free tenements, and a
numerous one, goes back to such privileges and exemptions granted to
servants[710]. And so this class of people, in the formation of which
unfree elements are so clearly apparent, became one of the sources in
the development of free society. Such importance and success are to be
explained, of course, by the influence of this class in the
administration and economic management of the estates belonging to the
secular and ecclesiastical aristocracy. It is very difficult at the
present time to realise the responsibility and strength of this element.
We live in a time of free contract, credit, highly mobilised currency,
easy means of communication, and powerful political organisation. There
is no necessity for creating a standing class of society for the purpose
of mediating between lord and subject, between the military order and
the industrial order. Every feature of the medieval system which tended
to disconnect adjoining localities, to cut up the country into a series
of isolated units, contributed at the same time to raise a class which
acted as a kind of nervous system, connecting the different parts with a
common centre and establishing rational intercourse and hierarchical
relations. The _libertini_ had to fulfil kindred functions in the
ancient world, but their importance was hardly so great as that of
medieval sergeants or _ministeriales_. We may get some notion of what
that position was by looking at the personal influence and endowments of
the chief servants in a great household of the thirteenth century. The
first cook and the gatekeeper of a celebrated abbey were real magnates
who held their offices by hereditary succession, and were enfeoffed with
considerable estates[711]. In Glastonbury five cooks shared in the
kitchen-fee[712]. The head of the cellar, the gatekeeper, and the chief
shepherd enter into agreements in regard to extensive plots of
land[713]. They appear as entirely free to dispose of such property, and
at every step we find in the cartularies of Glastonbury Abbey proofs of
the existence of a numerous and powerful 'sergeant' class. John of
Norwood, Abbot of Bury St. Edmund's, had to resort to a regular _coup
d'état_ in order to displace the privileged families which had got hold
of the offices and treated them as hereditary property[714]. In fact the
great 'sergeants' ended by hampering their lords more than serving them.
And the same fact of the rise of a 'ministerial' class may be noticed on
every single estate, although it is not so prominent there as in the
great centres of feudal life. The whole arrangement was broken by the
substitution of the 'cash nexus' for more ancient kinds of economic
relationship, and by the spread of free agreements: it is not difficult
to see that both these facts acted strongly in favour of driving out
hereditary and customary obligations.
[Free tenants in the manor.]
We have considered the relative position of the unfree holdings, of the
domanial land around which they were grouped, and of the class which had
to put the whole machinery of the manor into action. But incidentally we
had several times to notice a set of men and tenements which stood in a
peculiar relation to the arrangement we have been describing: there were
in almost every manor some free tenants and some free tenements that
could not be considered as belonging to the regular fabric of the whole.
They had to pay rents or even to perform labour services, but their
obligations were subsidiary to the work of the customary tenants on
which the husbandry of the manorial demesne leaned for support. From the
economic point of view we can see no inherent necessity for the
connexion of these particular free tenements with that particular
manorial unit. The rent, large or small, could have been sent directly
to the lord's household, or paid in some other manor without any
perceptible alteration in favour of either party; the work, if there was
such to perform, was without exception of a rather trifling kind, and
could have been easily dispensed with and commuted for money. Several
reasons may be thought of to explain the fact that free tenements are
thus grouped along with the villain holdings and worked into that single
unit, the manor. It may be urged that the division into manors is not
merely and perhaps not chiefly an economic one, but that it reflects a
certain political organisation, which had to deal with and to class free
tenants as well as servile people. It may be conjectured that even from
the economic point of view, although the case of free tenants would
hardly have called the manorial unit into existence, it was convenient
to use that class when once created for the grouping of villain land and
work: why should the free tenants not join the divisions formed for
another purpose but locally within easy reach and therefore conveniently
situated for such intercourse with the lord as was rendered necessary by
the character of the tenement? Again, the grouping of free tenants may
have originated in a time when the connexion with the whole was felt
more strongly than in the feudal period; it may possibly go back to a
community which had nothing or little to do with subjection, and in
which the free landowners joined for mutual support and organisation. It
is not impossible to assume, on the other hand, that in many cases the
free tenant was left in the manorial group because he had begun by being
an unfree and therefore a necessary member of it. All such suppositions
seem _prima facie_ admissible and reasonable enough, and at the same
time it is clear, that by deciding in favour of one of them or by the
relative importance assigned to each we shall very materially influence
the solution of interesting historical problems.
In order to appreciate rightly the position of the free tenements in the
manor we have to examine whether these tenements are all of one and the
same kind or not, and this must be done not from the legal standpoint
whence it has already been reviewed, but in connexion with the
practical management of the estate. I think that a survey of the
different meanings which the term bears in our documents must lead us to
recognise three chief distinctions: first there is free land which once
formed part of the demesne but has been separated from it; then there is
the land held by villagers outside the regular arrangements of the rural
community, and lastly there are ancient free holdings of the same shape
as the servile tenements, though differing from the latter in legal
character. Each class will naturally fall into subdivisions[715].
[Free tenements carved out of the demesne.]
Under the first head it is to be observed that domanial land very often
lost its direct connexion with the lord's household, and was given away
to dependent people on certain conditions. One of the questions
addressed to the juries by the Glastonbury Inquest of 1189 was prompted
by this practice: it was asked what demesne land had been given out
under free agreement or servile conditions, and whether it was
advantageous to keep to the arrangement or not. One of the reasons which
lay at the root of the process has been already touched upon. Grants of
domanial land occur commonly in return for services rendered in the
administration of the manor: reeves, ploughmen, herdsmen, woodwards are
sometimes recompensed in this manner instead of being liberated from the
duties incumbent on their holding. A small rent was usually affixed to
the plot severed from the demesne, and the whole arrangement may be
regarded as very like an ordinary lease. An attenuated form of the same
thing may be noticed when some officer or servant was permitted to use
certain plots of domanial land during the tenure of his office. It
happened, for instance, that a cotter was entrusted to take care of a
team of oxen belonging to the lord or obliged to drive his plough. He
might be repaid either by leave to use the manorial plough on his own
land on specified occasions, or else by an assignment to him of the crop
on certain acres of the home farm[716]. Such privileges are sometimes
granted to villagers who do not seem to be personally employed in the
manorial administration, but such cases are rare, and must be due to
special reasons which escape our notice.
It is quite common, on the other hand, to find deficiencies in the
normal holdings made up from the demesne, e.g. a group of peasants hold
five acres apiece in the fields, and one of the set cannot receive his
full share: the failing acres are supplied by the demesne. Even an
entire virgate or half-virgate may be formed in this way[717]. Sometimes
a plot of the lord's land is given to compensate the bad quality of the
peasant's land[718]. Of course, such surrenders of the demesne soil were
by no means prompted by disinterested philanthropy. They were made to
enable the peasantry to bear its burdens, and may-be to get rid of
patches of bad soil or ground that was inconveniently situated[719]. In
a number of cases these grants of demesne are actual leases, and
probably the result of hard bargains.
[Inland.]
However this might be, we find alongside of the estate farmed for the
lord's own account a great portion of the demesne conceded to the
villagers. The term 'inland,' which ought properly to designate all the
land belonging directly to the lord, is sometimes applied to plots which
have been surrendered to the peasantry, and so distinguishes them from
the regular customary holdings[720]. Such concessions of demesne land
were not meant to create freehold tenements. Their tenure was
precarious, the right of resumption was more expressly recognised in the
case of such plots than in that of any other form of rural occupation,
but the rights thus acquired tended to become perpetual, like everything
else in this feudal world; and as they were founded on agreement and
paid for with money rents, their transformation into permanent tenures
led to an increase of free tenements and not of villainage. We catch a
glimpse of the process in the Domesday of St. Paul's. In 1240 a covenant
was made between the Chapter of the Cathedral and its villagers of the
manor of Beauchamp in Essex: in consequence of the agreement all the
concessions of demesne land which had been made by the farmers were
confirmed by the Chapter. The inquests show that those who farmed the
estates had extensive rights as to the use of domanial land, but their
dealings with the customary tenants were always open to a revision by
the landlords. A confirmation like this Beauchamp one transferred the
plot of demesne land into the class of free tenements, and created a
tenure defensible at law[721]. All such facts increase in number and
importance with the increase of population: under its pressure the area
of direct cultivation for the lord is gradually lessened, and in many
surveys we find a sort of belt formed around the home farm by the
intrusion of the dependent people into the limits of the demesne[722].
The Domesday of St. Paul's is especially instructive on this point.
Every estate shows one part of the lord's land in the possession of the
peasants; sometimes the 'dominicum antiquitus assisum' is followed by
'terrae de novo traditae[723].'
[Leases.]
A second group of free tenements consists of plots which did not belong
either to the demesne or to the regular holdings in the fields, but lay
by the side of these holdings and were parcelled out in varying quantity
and under various conditions. We may begin by noticing the growth of
leases. There is no doubt that the lease-system was growing in the
thirteenth century, and that it is not adequately reflected in our
documents. An indirect proof of this is given by the fact, that legal
practice was labouring to discover means of protection for possession
based on temporary agreement. The writ 'Quare ejecit infra terminum'
invented by William Raleigh between 1236 and 1240 protected the
possession of the 'tenant for term of years' who formerly had been
regarded as having no more than a personal right enforceable by an
action of covenant[724].
Manorial extents are sparing in their notices of leases because their
object is to picture the distribution of ownership, and temporary
agreements are beyond their range. But it is not uncommon to find a man
holding a small piece of land for his life at a substantial rent. In
this case his tenure is reckoned freehold, but still he holds under what
we should now call a lease for life; the rent is a substantial return
for the land that he has hired. That English law should regard these
tenants under leases for life as freeholders, should, that is, throw
them into one great class with tenants who have heritable rights, who
do but military service or nominal service, who are in fact if not in
name the owners of the land, is very remarkable; hirers are mingled with
owners, because according to the great generalisation of English
feudalism every owner is after all but a hirer. Still we can mark off
for economic purposes a class of tenants whom we may call
'life-leaseholders,' and we can see also a smaller class of leaseholders
who hold for terms of years[725]. They often seem to owe their existence
to the action of the manorial bailiffs or the farmers to whom the
demesne has been let. We are told that such and such a person has
'entered' the tenement by the leave of such and such a farmer or
bailiff, or that the tenement does not belong to the occupier by
hereditary right, but by the bailiff's precept[726]. Remarks of that
kind seem to mean that these rent-paying plots, liberated from servile
duties, were especially liable to the interference of manorial officers.
Limits of time are rarely mentioned, and leases for life seem to be the
general rule[727]. The tenure is only in the course of formation, and
by no means clearly defined. One does not even see, for instance, how
the question of implements and stock was settled--whether they were
provided by the landlord or by the tenant.
[Forlands.]
We feel our way with much greater security in another direction. The
fields of the village contain many a nook or odd bit which cannot be
squeezed into the virgate arrangement and into the system of work and
duties connected with it. These '_subsecivae_,' as the Romans would have
said, were always distributed for small rents in kind or in money[728].
The manorial administration may also exclude from the common arrangement
entire areas of land which it is thought advantageous to give out for
rent. Those who take it are mostly the same villagers who possess the
regular holdings, but their title is different; in one case it is based
on agreement, in the other on custom[729]. Plots of this kind are called
_forlands_[730]. In close connexion with them we find the _essarts_ or
_assarts_--land newly reclaimed from the waste, and therefore not mapped
out according to the original plan of possession and service. The
Surveys often mark the different epochs of cultivation--the old and the
new essarts[731]. The documents show also that the spread of the area
under cultivation was effected in different ways; sometimes by a single
settler with help from the lord[732], and sometimes by the entire
village, or at any rate by a large group of peasants who club together
for the purpose[733]. In the first case there was no reason for bringing
the reclaimed space under the sway of the compulsory rotation of crops
or the other regulations of communal agriculture. In the second, the
distribution of the acres and strips among the various tenants was
proportioned to their holdings in the ancient lands of the village. The
rents on essart land seem very low, and no wonder: everywhere in the
world the advance of cultivation has been made the starting-point of
privileged occupation and light taxation. The Roman Empire introduced
the _emphyteusis_ as a contract in favour of the pioneers of
cultivation, the French feudal law endowed the _hôtes_ (_hospites_) on
newly reclaimed land with all kinds of advantages. English practice is
not so explicit on this point, but it is not difficult to gather from
the Surveys that it was not blind to the necessity of patronising
agricultural progress and encouraging it by favourable terms.
Of _mol-land_ I have already spoken in another chapter. I will only
point out now that this class of tenements appears to have been a very
common one. Thirteenth-century surveys often describe certain holdings
in two different ways--on the supposition of their paying rent, and also
on that of their rendering labour-services; when they pay rent they pay
so much, when they supply labour they supply so much. By the side of
such holdings, which are wavering, as it were, between the two systems,
we find the _terra assisa_ or _ad censum_. This class, to which molland
evidently belongs, is distinguished from free tenure by the fact that
its rent is regarded as a manorial arrangement; there is no formal
agreement and no charter, and therefore no action before the king's
courts to guard against disseisin or increase of services. In practice
the difference is not felt very keenly, and these tenements gradually
came to be regarded as 'free' in every sense. A characteristic feature
of the movement may be noticed in the terms '_Socagium ad placitum_' and
'_Socagium villani_[734].' These expressions occur in the documents,
although they are not very common. It would be hard to explain them
otherwise than from the point of view indicated just now. The tenement
is paying a fixed and certain rent and therefore _socage_, but it is not
defended by feoffment and charter; it is not recognised by law, and
therefore it remains _at the will_ of the lord and unfree[735]. The
grant of a charter would raise it to the legal standing of free land.
[Ancient freeholds.]
Every student of manorial documents will certainly be struck by one
well-marked difference between villain tenements and free tenements as
described in the extents and surveys. The tenants in villainage
generally appear arranged into large groups, in which every man holds,
works, and pays exactly as his fellows; so that when the tenement and
services of some one tenant have been described we then read that the
other tenants hold similar tenements and owe similar services. On the
other hand, the freeholds seem scattered at random without any definite
plan of arrangement, parcelled up into unequal portions, and subjected
to entirely different duties. One man holds ten acres and pays three
shillings for them; another has eight and a half acres and gives a pound
of pepper to his lord; a third is possessed of twenty-three acres, pays
4_s._ 6_d._, and sends his dependants to three boonworks; a fourth
brings one penny and some poultry in return for his one acre. The
regularity of the villain system seems entirely opposed to the
capricious and disorderly phenomena of free tenure.
And this fact seems naturally connected with some remarkable features of
social organisation. No wonder that free land is cut up into irregular
plots: we know that it may be divided and accumulated by inheritance and
alienation, whereas villain land is held together in rigid unity by the
fact that it is, properly speaking, the lord's and not the villain's
land. Besides, all the variations of free tenure which we have discussed
hitherto have one thing in common, they are produced by express
agreement between lord and tenant as to the nature and amount of
services required from the tenant. Whether we take the case of a villain
receiving a few acres in addition to his holding, or that of a servant
recompensed by the grant of a privileged plot, or that of a peasant
confirmed in the possession of soil newly reclaimed from the waste, or
that of a bondman who has succeeded in liberating his holding from the
burdensome labour service of villainage, in all these instances we come
across the same fundamental notion of a definite agreement between lord
and tenant. And again, the capricious aspect of free tenements seems
well in keeping with the fact that they are produced by separate and
private agreements, by consecutive grants and feoffments, while the
villain system of every manor is mapped out at one stroke, and managed
as a whole by the lord and his steward. This contrast between the two
arrangements may even seem to widen itself into a difference between a
communal organisation which is servile, and a system of freeholding
which is not communal. All these inferences are natural enough, and all
have been actually drawn.
A close inspection of the Surveys will, however, considerably modify our
first impressions, and suggest conclusions widely different from those
which I have just now stated. The importance of the subject requires a
detailed discussion, even at the risk of tediousness. I shall take my
instances from the Hundred Rolls, as from a survey which reflects the
state of things in central counties and gives an insight into the
organisation of secular as well as ecclesiastical estates.
We need not dwell much on the observation that the servile tenements
sometimes display no perfect regularity. Sometimes the burdens incumbent
on them are not quite equal. Sometimes again the holdings themselves are
not quite equal. In Fulborne, Cambridgeshire, e.g., the villains of Alan
de la Zuche are assessed very irregularly[736], although their tenements
are described as virgates and half-virgates. Of course, the general
character of the virgate system remains unaltered by these exceptional
deviations, which may be easily explained by the consideration that the
social order was undergoing a process of change. The disruption of some
of the villain holdings and the modification of certain duties are
perhaps less strange than the fact that such alterations should be so
decidedly exceptional. Still, the occurrence of irregularities even
within the range of villainage warns us not to be too hasty in our
inferences about free tenements; it shows, at any rate, that
irregularities may well arise even where there has once been a definite
plan, and that it is worth while to enquire whether some traces of such
an original plan may not still be discovered amidst the apparent
disorder of free tenements.
[Free virgates.]
And a little attention will show us many cases in which free tenements
are arranged on the virgate system. There is hardly any need for
quotations on this point: the Hundred Rolls of all the six counties of
which we possess surveys, supply an unlimited number of instances. True,
fundamental divisions of land and service may often be obscured and
confused by the existence of plots which do not fit into the system; but
as in the case of servile tenements we occasionally find irregularities,
so in the case of free tenements we often see that below the superficial
irregularities there lie traces of an ancient plan. The manor of
Ayllington (Elton), Huntingdonshire, belonging to the Abbey of Ramsey,
presents a good example in point[737]. It is reckoned to contain
thirteen hides and a half, each hide comprising six virgates, and each
virgate twenty-four acres. The actual distribution of the holdings
squares to a fraction with this computation, if we take into the
reckoning the demesne, the free and the villain tenements. Three hides
are in the lord's hand, one is held by a large tenant, John of
Ayllington, eleven virgates and a half by other freeholders, forty-two
virgates and a half by the villains; the grand total being exactly
thirteen hides. The numerous cotters are not taken into account, and
evidently left 'outside the hides' (extra hidam); this is a very common
thing in the Surveys. If we neglect them, and turn to the holdings in
the 'hidated' portion of the manor, we shall notice that the greater
part of the free tenements are arranged on the same system as the
servile tenements. We find six free tenants with a virgate apiece, one
with half a virgate, three with a virgate and a half, and three jointly
possessed of two virgates. In contrast with this principal body of
tenants stand several small freeholders endowed with irregular plots
reckoned in acres and so much varying in size that it is quite
impossible to arrange them according to any plan, not to speak of the
virgate system. But these small tenants are all sub-tenants enfeoffed by
the principal freeholders whose own tenements are distributed into
regular agrarian unity. It is easy to see that even when the stock of
free tenancies stood arranged according to a definite plan, deviations
from this plan would easily arise owing to new feoffments made by the
lord out of the demesne land or out of the waste[738]. What I am
concerned to say is, not that the Hundred Rolls show a distribution of
free holdings quite as regular as that of the servile tenements, but
that amidst all the irregularities of the freehold plots we frequently
come across unmistakable traces of a system similar to that which
prevailed on villain soil. These traces are not always of the same kind,
and present various gradations. In a comparatively small number of
instances the duties imposed on the shareholders are equal, or nearly
so; much more often the rent and labour rendered by them to the lord
vary a great deal, although their tenements are equal. The Ayllington
instance, quoted above, belongs to the former class, but the
proportionate distribution of duties is somewhat obscured by the fact
that part of them is reckoned in labour. The normal rent is computed at
six shillings per virgate[739], though there are a few noticeable
exceptions, but the duty of ploughing is imposed according to two
different standards, and it is not easy to reduce these to unity. The
freeholders of one group have to plough eight acres per virgate for the
lord, while for the members of the other group the ploughing work is
reckoned in the same way as in the case of the villains, each placing
his team at the disposal of the lord one day of every week from
Michaelmas to the 1st of August, four weeks being excepted in honour of
Christmas, Easter, and Trinity[740]. Ravenston, in Buckinghamshire, is a
much clearer example. Twelve villains hold of the Prior of Ravenston
twelve acres each, and their service is worth eighteen shillings per
holding; four villains hold six acres each, and their service is valued
at nine shillings. One free tenant has twelve acres and pays sixteen
shillings; six have six acres each, and pay seven shillings. There are
three other tenants whose duties cannot be brought within the
system[741]. The portion of Fulborne, in Cambridgeshire, belonging to
Baldwin de Maneriis, may also serve as an illustration of an almost
regular distribution of land and service among the freeholders[742].
Instances in which the duties, although not exactly, are still very
nearly equal, are very frequent. In Radewelle, Bedfordshire, the mean
rent of the six is two shillings per half-virgate, although the villains
perform service to the amount of eight shillings per virgate[743].
Bidenham, Bedfordshire, also presents an assessment of four shillings
per free virgate[744]. In that part of Fulborne which is owned by Alan
de la Zuche the virgates and half-virgates of the free holders are
variously rented; but twelve shillings per half-virgate is of common
occurrence[745], while in the fee of Maud Passelewe we find only four
and five shillings as the rent for the half-virgate[746]. Papworth
Anneys exhibits a ferdel of seven and a half acres, for which ten to
twelve shillings are paid[747]. As to the cases in which the service
varies a great deal, although the land is held in shares, I need not
give quotations because they are to be found on every page of the
printed Hundred Rolls. We may say, in conclusion, that the process of
disruption acts much more potently in the sphere of free holding than
it does in regard to villainage; but that it has by no means succeeded
in destroying all regularity even there.
[Free shareholders.]
Thus, even among the freeholders, landholding is often what I shall take
leave to call 'shareholding,' Now, whatever ultimate explanation we may
give of this fact, it has one obvious meaning. That part of the free
population which holds in regular shares is not governed entirely by the
rules of private ownership, but is somehow implicated in the village
community. Bovates and virgates exist only as parts of carucates or
hides, and the several carucates or hides themselves fit together,
inasmuch as they suppose a constant apportionment of some kind. Two sets
of important questions arise from this proposition, both intimately
connected with each other, although they suggest different lines of
enquiry. We may start from an examination of the single holding, and ask
whether its regular shape can be explained by the requirements of its
condition or by survivals of a former condition. Or again, we may start
from the whole and inquire whether the equality the elements of which we
detect is equality in ownership or equality in service. Let us take up
the first thread of the inquiry.
[Origins of free shareholding.]
How can we account for the occurrence of regular 'shareholding' among
the freeholders? Two possibilities have to be considered: the free
character of the tenements may be newly acquired and the 'shareholding'
may be a relic of a servile past; or, on the other hand, the freehold
character of the tenements may be coeval with the 'shareholding,' and in
this latter case we shall have to admit the existence of freeholds which
from of old have formed an element in the village community. In the
first of these cases again we shall have to distinguish between two
suppositions:--Servile tenements have become free; this may be due
either to some general measure of enfranchisement, a lord having
preferred to take money rents in lieu of the old labour services, and
these money rents being the modern equivalent for those old services, or
else to particular and occasional feoffments made in favour of those
who, for one reason or another, have earned some benefit at the lord's
hand. To put it shortly, we may explain the phenomenon either by a
process of commutation such as that which turned 'workland' into
'molland,' or by special privileges which have exempted certain shares
in the land from a general scheme of villainage; or, lastly, by the
existence of freeholds as normal factors in the ancient village
community.
Let us test these various suppositions by the facts recorded in our
surveys. At first sight it may seem possible to account for the freehold
virgates by reference to the process which converted 'workland' into
'molland.' We have seen above that if a lord began to demand money
instead of work, the result might, in some cases, be the evolution of
new tenures which gradually lost their villain character and became
recognised as genuine freeholds. And no doubt one considerable class of
cases can be explained by this process. But a great many instances seem
to call for some other explanation. To begin with, the mere acceptance
of rent in lieu of labour did not make the tenement a freehold; servile
tenements were frequently put _ad censum_[748], and it seems difficult
to believe that many lords allowed a commutation of labour for rent to
have the effect of turning villainage into freehold. Another difficulty
is found on the opposite side. What force kept the shares together when
they had become free? Why did they not accumulate and disperse according
to the chances of free development? It may be thought that custom, and
express conditions of feoffment, must have acted against disruption. I
do not deny the possibility, but I say that it is not easy to explain
the very widely diffused phenomenon of free shareholding by a
commutation which tended to break up the shares and to make them useless
for the purposes of assessment. Still I grant that these considerations,
though they should have some weight, are not decisive, and I insist
chiefly on the following argument.
The peculiar trait which distinguishes 'molland' is the transition from
labour service to money rent, and the rent is undoubtedly considered as
an equivalent for the right to labour services which the lord abandons.
It must be admitted that in some cases the lord may have taken less than
the real equivalent in order to get such a convenient commodity as
money, or because for some reason or another he was in need of current
coin. Still I am not afraid to say that, in a general way, commutation
supposes an exchange against an equivalent. Indeed the demand for money
rents was considered rather as increasing than as decreasing the burden
incumbent on the peasantry[749]. Now, although it would be preposterous
to try and make out in every single case whether the rent of the free
virgate is an adequate equivalent for villain services or not, there is
a very sufficient number of instances in which a rough reckoning may be
made without fear of going much astray[750]. And if we attempt such a
reckoning we shall be struck by the number of cases in which the rent of
the free virgate falls considerably short of what it yielded by the
virgate of the villain. We have seen that in Ravenston, Bedfordshire,
the villain service is valued at eight shillings per virgate, and that
the free assessment amounts only to four shillings. In Thriplow,
Cambridgeshire, the villains perform labour duties valued at 9_s._
4_d._ per bovate, the freeholders are assessed variously; but there is a
certain number among them which forms, as it were, the stock of that
class, and their average rent is 5_s._ 6_d._ per bovate[751]. In
Tyringham, Buckinghamshire, the villain holding is computed at six acres
and one rood, and its service at five shillings; the free virgates have
a like number of acres and pay various rents, but almost without
exception less than the villains[752]. In Croxton, Cambridgeshire, there
are customers with twenty acres, and others with ten acres; the first
have to pay ten shillings and to assist at four boonworks. The free
holders are possessed of plots of irregular size, and their rent is also
irregular; but on the average much lower than that of the
customers[753]. Let it be noted that the customary tenants have commuted
their labour services into money payments, and, in fact, they are to be
considered as molmen in the first stage of development. Still, their
payments are computed on a different scale from those of the free.
In Brandone, Warwickshire, the typical villain, William Bateman, pays
for his virgate 5_s._ 3_d._, and sends one man to work twice a week from
the 29th of June until the 1st of August, and thence onward his man has
to work two days one week and three days the next. The free half-virgate
merely pays five shillings, and does suit to the manorial court. This
last point makes no difference, because the villain had to attend the
manorial court quite as regularly as the freeholder, and indeed more
regularly, because he was obliged to serve on inquests[754]. In
Bathekynton, Warwickshire, the difference in favour of the free is also
noticeable, but not so great[755]. And these are by no means
exceptional cases. Nothing is more common than to find free tenements
held by trifling services, and whatever we may think of single cases, it
would be absurd to explain such arrangements in the aggregate as the
results of a bargain between lord and serfs. It is evident, therefore,
that a reference to 'molland,' to a commutation of labour into rent,
does not suit these cases[756].
Can we explain these cases of 'free shareholding' by feoffments made to
favoured persons? We have seen that the lord used to recompense his
servants by grants of land and that he favoured the spread of
cultivation by exacting but a light rent from newly reclaimed land. Such
transactions would undoubtedly produce free tenements held on very
advantageous terms, but still they seem incapable of solving our
problem. Tenements created by way of beneficial feoffment are in general
easily recognised. The holdings of servants and other people endowed by
favour are always few and interspersed among the plots of the regular
occupiers of the land, be they free or serfs. The 'essarted' fields are
sometimes numerous, but usually cut up into small strips and as it were
engrafted on the original stock of tenements. Altogether privileged land
mostly appears divided into irregular plots and reckoned by acres and
not by shares. And what we have to account for is a vast number of
instances in which what seem to be some of the principal and original
shares in the land are held freely and by comparatively light services.
I do not think that we can get rid of a very considerable residue of
cases without resorting to the last of the suppositions mentioned above.
We must admit that some of the freeholders in the Hundred Rolls are
possessed of shares in the fields not because they have emerged from
serfdom, but because they were from the first members of a village
community over which the lord's power spread. It would be very hard to
draw absolute distinctions in special cases, because the terminology of
our records does not take into account the history of tenure and only
indicates net results. But a comparison of facts _en bloc_ points to at
least three distinct sources of the freehold virgates. Some may be due
to commutation, others to beneficial feoffments, but there are yet
others which seem to be ancient and primitive. The traits which mark
these last are 'shareholding' and light rents. The light rents do not
look like the result of commutation, the 'shareholding' points to some
other cause than favours bestowed by the lord.
We shall come to the same conclusion if we follow the other line of our
inquiry. It may be asked, whether the community into which the share is
made to fit should be thought of primarily as a community in ownership
or a community in assessment, whether the shares are constructed for the
purpose of satisfying equal claims or for the purpose of imposing equal
duties? The question is a wide one, much wider than the subject
immediately in hand, but it is connected with that subject and some of
the material for its solution must be taken up in the course of our
present inquiry.
I have been constantly mentioning the assessment of free tenements,
their rents and their labour services. The question of their weight as
compared with villain services has been discussed, but I have not
hitherto taken heed of the varying and irregular character of these
rents and services. But the variety and irregularity are worthy of
special notice. One of the most fundamental differences between the free
and servile systems is to be found in this quarter. The villains are
equalised not only as regards their shares in the fields, but also as
regards their duties towards the lord; indeed, both facts appear as the
two sides of one thing. The virgate of the villain is quite as much, if
not more, a unit of assessment as it is a share of the soil. Matters
look more complex in the case of free land. As I have said before, there
are instances in which the free people are not only possessed of equal
shares but also are rented in proportion to those shares. In much the
greater number of instances, however, there is no such proportion. All
may hold virgates, but one will pay more and the other less; one will
perform labour duties, and the other not; one will pay in money, and the
other bring a chicken, or a pound of pepper, or a flower. Whatever we
may think of the gradual changes which have distorted conditions that
were originally meant to be equal, it is impossible to get rid of the
fact that, in regard to free tenements, equal shares do not imply equal
duties or even duties of one and the same kind.
One of two things, either the shares exist only as a survival of the
servile arrangement out of which the free tenements may have grown, or
else they exist primarily for the purpose not of assessing duties but of
apportioning claims. In stating these possibilities I must repeat what I
said before, that it would be quite wrong to bring all the observed
phenomena under one head. I do not intend in the least to deny that the
freer play of economic and legal forces within the range of free
ownership must have produced combinations infinitely more varying,
irregular and complicated than those which are to be found in
villainage. A large margin must be allowed for such modifications which
dispersed and altered the duties that were originally proportioned to
shares. But a few simple questions will serve to show that other
elements must be brought into the reckoning. Why should the disruptive
tendency operate so much more against proportionate assessment than
against the distribution into shares itself; in other words, why are
equal tenements so much commoner than equal rents? If shareholding and
equal rents were indissolubly connected as the two sides of one thing,
or even as cause and effect, why should one hold its ground when the
other had disappeared, and how could the dependent element remain widely
active when the principal one had lost its meaning? If the
discrepancies between rent and shares had been casual, we might try to
explain them entirely by later modifications. But these discrepancies
are a standing feature of the surveys, and it seems to me that we can
hardly escape the inference that shareholding has its _raison d'être_
quite apart from the duties owed to the lord, and in this case we have
to look to the communal arrangement of proprietary rights for its
explanation; it was a means of giving to every man his due. If this
principle is granted, all the observable facts fall into their right
places. One can easily imagine how free holdings came to exist within
the village community in spite of their loose connexion with the manor.
In regard to duties, they were practically outside the community; not so
as to proprietary rights and the agricultural arrangements proceeding
from them, for example such arrangements as affected the rotation of
crops, the use of commons and fallow pasture, the setting up of hedges,
the repair of dykes, etc. There is no real contradiction between the
facts, that in relation to the lord every free shareholder was, as it
were, bound by a separate and private agreement, while in relation to
the village he had to conform to communal rule.
This last remark may require some further development. The striking
differences between the duties of the several freeholders of one manor
seem to show that these people were not enfeoffed by the lord at the
same time and under the same conditions. If A is in every respect a
fellow of B, and still has to pay twice as much as B, it is clear that
his relation to the lord has been settled under different circumstances
from those which governed the settlement of B's position. Now, from the
point of view of later law this meant that the two freeholds were
created each by a special feoffment. But this would be a very formal and
inadequate way of considering the case. Very often the differences might
be produced by subsequent arrangements which, though not giving rise to
new title, destroyed the original uniformity of condition. Often again
we may suspect that the relation between lord and tenant had its origin
not really in a gift of land made by the former to the latter but in a
submission made by the latter to the former. I make bold to prefer this
view, chiefly on account of those trifling and indeed fictitious duties
which are constantly found in the Surveys[757]. They can only have one
meaning--that of 'recognitions[758].' Trifling in themselves, they
establish the subordinate relation of one owner to the other; and
although their imposition must be considered from the formal standpoint
of feudal law as the result of a feoffment, it is clear that their real
foundation must often have been a submission to patronage. The subject
is a wide one and includes all kinds of free tenure, communal as well as
other. When a knight was enfeoffed by a monastery in consideration of
some infinitesimal payment, there might be several reasons for such a
transaction. The abbot may have thought it good policy to acquire the
support of a considerable person, he may have been forced to give the
land and only glad to obtain some recognition, however trifling, of the
gift; or again, he may have made a beneficial feoffment in return for a
sum of ready money paid by way of gersuma or fine, but he may also have
extended his supremacy over a piece of land which did not belong to him
originally at all. Even in feudal times this could be done by means of a
fictitious lawsuit ending in 'a final concord'; or even simply by an
instrument of quit claim and feoffment without any suit[759]. At the
time when feudalism was only settling itself, in the twelfth and
thirteenth centuries, this must have been a common thing, even if we do
not take into account the Saxon practice of 'commendation.'
However this may be, the trifling duties imposed on freeholds lead to
the inference that the agreement between lord and tenant had been made
on the basis of the latter's independent right, and not on that of the
lord's will and power. They testify to a subjection of free people and
not to the liberation of serfs. And as they are found constantly allied
with shareholding, we have to say that they imply manorial relations
superimposed on a community which, if not entirely free, contained free
elements within it. The manorial duties are more varied and capricious
than are the shares just because they are a later growth.
I should not like to leave this intricate inquiry without testing its
results by yet another standard. I have been trying to prove two things:
that some of the feudal freeholds are ancient freeholds, not liberated
from servitude but originally based on the recognised right of the
holders; that such ancient freeholds were included in the communal
arrangement of ownership, although the assessment of their duties was
not communal. To what extent are these propositions supported by an
analysis of that admittedly ancient tenure, the tenure of the socmen? We
must look chiefly to the 'free' socmen; but I may be allowed, on the
strength of the chapter on Ancient Demesne, to take the bond socmen also
into account.
Let us take the manor of Chesterton, in Cambridgeshire[760]. It is
royal, but let out in feefarm to the Prior of Barnwell, and its men make
use of the _parvum breve de recto_. There is one free tenant of
eighty-eight acres holding _de antiquitate_ and the Scholars of Merton
hold forty-four acres freely. They have clearly taken the place of some
freeman, whether by purchase or by gift I do not know; they are bound to
perform ploughings and to carry corn. Both tenements are worthy of
notice because charters are not mentioned and still the holdings are set
apart from the rest. In the one case the tenure is expressly stated to
be an ancient one, and presumably the title of the other tenement is of
the same kind. The number of acres is peculiar and points to some
agrarian division of which eighty-eight and forty-four were fractions or
multiples. The bulk of the population are described as customers. They
used to hold half-virgates, it is said, but some of them have sold part
of their land according to the custom of the manor. And so their
tenements have lost their original regularity of construction, although
it seems possible to fix the average holdings at twelve or fifteen
acres. Anyhow, it is impossible to reduce them to fractions of
eighty-eight; for some reason or another, the reckoning is made on a
different basis. The duties vary a good deal, and it would be even more
difficult to conjecture what the original services may have been than to
make out the size of the virgate.
The example is instructive in many ways. It is a stepping-stone from
villainage to socage, or rather to socman's tenure. There can be no
question of differences of feoffment. The manorial power is fully
recognised, and on the other hand the character of ancient demesne is
also conspicuous with its protection of the peasantry. And still the
whole fabric is giving way--the holdings get dispersed and the service
loses its uniformity. All these traits are a fair warning to those who
argue from the irregularity of free tenements and the inequality of
their rents against the possibility of their development out of communal
ownership. Here is a well-attested village community; its members hold
by custom and have not changed their condition either for the better or
for the worse in point of title. Later agencies are at work to distort
the original arrangement--a few steps more in that direction and it
would be impossible to make out even the chief lines of the system.
Stanton, in Cambridgeshire, is a similar case[761]. I would especially
direct the attention of the reader to the capricious way in which the
services are assessed. And still the titles of the tenants are the
result not of various grants but of manorial custom applied to the whole
community. I repeat, that irregularity in the size of holdings and in
the services that they owe is no proof that these holdings have not
formed part of a communal arrangement or that their free character (if
they have a free character) must be the result of emancipation; these
irregularities are found on the ancient demesne where there has been no
enfranchisement or emancipation, and where on the other hand the tenants
have all along been sufficiently 'free' to enjoy legal protection in
their holdings.
If we have to say so much with regard to ancient demesne and bond
socmen, we must not wonder that free socmen are very often placed in
conditions which it would be impossible to reduce to a definite plan. On
the fee of Robert le Noreys, in Fordham[762], we find some scattered
free tenants burdened with entirely irregular rents, four villains
holding eighteen acres each and subjected to heavy ploughing work, three
socmen of twenty acres each paying a rent of 4_s._ 2_d._ per holding,
and obliged to assist at reaping and to bring chicken, one socman of
nine acres paying 10_d._, one of seven acres also assessed at 10_d._,
two of eleven acres paying 15_d._, etc.
It is no cause for wonder that such instances occur at the end of the
thirteenth century. It is much more wonderful that, in a good many
cases, we are still well able to perceive a great deal of the original
regularity. Swaffham Prior, in Cambridgeshire, is a grand example of an
absolutely regular arrangement in a community of free socmen[763]. The
Prior of Ely holds it for three hides and has 220 acres on his
home-farm. The rest is divided among sixteen free socmen paying 5_s._
each and performing various labour services. These services have been
considerably increased by the Prior. Mixed cases are much more usual--I
mean cases in which the original regularity has suffered some
modifications, though a little attention will discover traces of the
ancient communal arrangement[764].
On the whole, I think that the notices of socmen's tenure in the Hundred
Rolls are especially precious, because they prove that the observations
that we have made as regards freehold generally are not merely ingenious
suggestions about what may conceivably have happened. There is
undoubtedly one weak point in those observations, which is due to the
method which we are compelled to adopt. It is difficult, if not
impossible, to classify the actual cases which come before us, to
say--in this case freehold is the result of commutation, in that case
the lord has enfeoffed a retainer or a kinsman, while in this third
case, the freehold virgate has always been freehold. The edge of the
inquiry is blunted, if I may so say, by the vagueness of terminological
distinctions, and we must rely upon general impressions. The socman's
tenure, on the contrary, stands out as a clear case, and a careful
analysis of it abundantly verifies the conclusions to which we have
previously come by a more circuitous route.
It seems to me that the general questions with which we started in our
inquiry may now be approached with some confidence. The relation of free
tenancies to the manorial system turns out to be a complex one. The
great majority of such tenements appears as a later growth engrafted on
the system when it was already in decay. Commutation of services, the
spread of cultivation over the waste, and the surrender of portions of
the demesne to the increasing dependent population, must largely account
for the contrast between Domesday and the Hundred Rolls. But an
important residue remains, which must be explained on the assumption
that in many cases the shares of the community were originally
distributed among free people who had nothing or little to do with
manorial work.
Three conclusions have been arrived at in this chapter.
1. The home-farm, though the necessary central unit of the manorial
group, did not, as a rule, occupy a large area, and the break-up of
feudalism tended to lessen its extension in favour of the dependent
population.
2. The peculiar feature of medieval husbandry--the grouping of small
households round an aristocratic centre--entailed the existence of a
large class engaged in collecting revenue, superintending work, and
generally conducting the machinery by which the tributary parts were
joined with their centre.
3. The position of free tenements within the manor may be ascribed to
one of three causes: (_a_) they have been the tenements of serfs, but,
in consequence either of some general commutation or of special
feoffments, they have become free; or (_b_) their connexion with the
manor has all along been rather a matter of jurisdiction than a matter
of proprietary right, that is to say, they form part of the manor
chiefly because they are within the scope of the manorial court; or
(_c_) they represent free shares in a village community upon which the
manorial structure has been superimposed.
CHAPTER V.
THE MANORIAL COURTS.
[The village community.]
The communal organisation of the village is made to subserve the needs
of manorial administration. We feel naturally inclined to think and to
speak of the village community in opposition to the lord and to notice
all points which show its self-dependent character. But in practice the
institution would hardly have lived such a long life and played such a
prominent part if it had acted only or even chiefly as a bulwark against
the feudal owner. Its development has to be accounted for to a great
extent by the fact that lord and village had many interests in common.
They were natural allies in regard to the higher manorial officers. The
lord had to manage his estates by the help of a powerful ministerial
class, but there was not much love lost between employers and
administrators, and often the latent antagonism between them broke out
into open feuds. If it is always difficult to organise a serviceable
administration, the task becomes especially arduous in a time of
undeveloped means of communication and of weak state control. It was
exceedingly difficult to audit accounts and to remove bad stewards. The
strength and self-government of the village group appeared, from this
point of view, as a most welcome help on the side of the owner[765]. He
had practically to surrender his arbitrary power over the peasant
population and their land, he had to conform to fixed rules as to civil
usage, manorial claims and distribution of territory; but the common
standards established by custom did not only hamper his freedom of
disposition, they created a basis on which he could take his stand above
and against his stewards. He had precise arrangements to go by in his
supervision of his ministers, and there was something more than his own
interest and energy to keep guard over the maintenance of these forms:
the village communities were sure to fight for them from beneath. The
facilities for joint action and accumulation of strength derived from
communal self-government vouched indirectly for the preservation of the
chief capital invested by the lord in the land: it was difficult for the
steward to destroy the economic stays of the villainage.
[The village and the manorial officers.]
There are many occasions when the help rendered by the village
communities to the lord may be perceived directly. I need hardly mention
the fact that the surveys, which form the chief material of our study,
were compiled in substance by sworn inquests, the members of which were
considered as the chief representatives of the community, and had to
give witness to its lore. The great monastic and exchequer surveys do
not give any insight into the mode of selection of the jurors: it may be
guessed with some probability that they were appointed for the special
purpose, and chosen by the whole court of the manor. In some cases the
ordinary jurors of the court, or chief pledges, may have been called
upon to serve on the inquest. There is another point which it is
impossible to decide quite conclusively, namely, whether questions about
which there was some doubt or the jurors disagreed were referred to the
whole body of the court. But, although we do not hear of such instances
in our great surveys, it is surely an important indication that the
extant court-rolls constantly speak of the whole court deciding
questions when the verdict of ordinary jurors seemed insufficient. And
such reserved cases were by no means restricted to points of law; very
often they concerned facts of the same nature as those enrolled in the
surveys[766].
[Village officers.]
On a parallel with the stewards and servants appointed by the lord,
although in subordination to them, appear officers elected by the
village. As we have seen, the manorial beadle was matched by the
communal reeve, and a like contrast is sometimes found on the lower
degrees[767]. In exceptional cases the lord nominates the reeve,
although he still remains the chief representative of village interests
and the chief collector of services. But in the normal course the office
was elective, and curious intermediate forms may be found. For instance,
the village selects the messarius (hayward), and the lord may appoint
him reeve[768]. This is a point, again, which shows most clearly the
intimate connexion between the interests of the lord and those of the
village. The peasants become guarantors for the reeve whom they chose. A
formula which comes from Gloucester Abbey requires, that only such
persons be chosen as have proved their capacity to serve by a good
conduct of their own affairs: all shortcomings and defects are to be
made good ultimately by the rural community that elected the officer,
and no excuses are to be accepted unless in cases of exceptional
hardship[769]. The economic tracts of the thirteenth century state the
same principle in even a more explicit manner.
[Communal liability.]
From the manorial point of view the whole village is responsible for the
collection of duties. There are payments expressly imposed on the
whole. Such is the case with the yearly auxilium or donum. The partition
of these between the householders is naturally effected in a meeting of
the villagers[770]. Most services are laid on the virgaters separately.
But they are all held answerable for the regularity and completeness
with which every single member of the community performs his duties. As
to free holdings, it is sometimes noticed especially to what extent they
are subjected to the general arrangement: whether they participate with
the rest in payments, and whether the tenants have to work in the same
way as the villains[771]. Very often the documents point out that such
and such a person ought to take part in certain obligations but has been
exempted or fraudulently exempts himself, and that the village community
has to bear a relative increase of its burdens[772]. A Glastonbury
formula orders the steward to make inquiries about people who have been
freed from the performance of their services in such a way that their
responsibility has been thrown on the village[773].
But it would be very wrong to assume that the rural community could act
only in the interest of the lord. Its solidarity is recognised in
matters which do not concern him, or even which call forth an opposition
between him and the peasantry.
[Village and manor.]
I have already spoken of the curious fact that the village is legally
recognised as a unit, separated from the manor although existing within
it. When the reeve and the four men attend the sheriff's tourn or the
eyre, they do not represent the lord only, but also the village
community. Part of their expenses are borne by the lord and part by
their fellow villagers[774]. The documents tell us of craftsmen who have
to work for the village as well as for the lord[775]. On a parallel with
services due to the landowner, we find sometimes kindred services
reserved for the village community[776]. If a person has been guilty of
misdemeanours and is subjected to a special supervision, this
supervision applies to his conduct in regard both to the lord and to the
fellow villagers[777]. No doubt the relations of the village to its lord
are much more fully described in the documents than the internal
arrangement of the community, but this could not be otherwise in surveys
compiled for the use of lords and stewards. Even the chance indications
we gather as to these internal arrangements are sufficient to give an
insight into the powerful ties of the village community.
[The village as a juristic person.]
Indeed, the rural settlement appears in our records as a 'juridical
person.' The Court Rolls of Brightwaltham, edited for the Selden Society
by Mr. Maitland, give a most beautiful example of this. The village of
Brightwaltham enters into a formal agreement with the lord of the manor
as to some commons. It surrenders its rights to the lord in regard to
the wood of Hemele, and gets rid in return of the rights claimed by the
lord in Estfield and in a wood called Trendale[778]. Nothing can be
more explicit: the village acts as an organised community; it evidently
has free disposition as to rights connected with the soil; it disposes
of these rights not only independently of the lord, but in an exchange
to which he appears as a party. We see no traces of the rightless
condition of villains which is supposed to be their legal lot, and a
powerful community is recognised by the lord in a form which bears all
the traits of legal definition. In the same way the annals of Dunstable
speak of the seisin of the township of Toddington[779], and of a
feoffment made by them on behalf of the lord.
I have only to say in addition to this summing up of the subject, that
the quasilegal standing of the villains in regard to the lord appears
with special clearness when they stand arrayed against him as a group
and not as single individuals. We could guess as much on general
grounds, but the self-dependent position assumed by the 'communitas
villanorum' of Brightwaltham is the more interesting, that it finds
expression in a formal and recorded agreement.
[The village as a farmer.]
We catch a glimpse of the same phenomenon from yet another point of
view. It is quite common to find entire estates let to farm to the rural
community settled upon them[780]. In such cases the mediation of the
bailiff might be dispensed with; the village entered into a direct
agreement with the lord or his chief steward and undertook a certain set
of services and payments, or promised to give a round sum. Such an
arrangement was profitable to both parties. The villains were willing to
pay dearly in order to free themselves from the bailiff's interference
with their affairs; the landowner got rid of a numerous and inconvenient
staff of stewards and servants; the rural life was organised on the
basis of self-government with a very slight control on the part of the
lord. Such agreements concern the general management of manors as well
as the letting of domain land or of particular plots and rights[781]. Of
course there was this great disadvantage for the lord, that the tie
between him and his subjects was very much loosened by such
arrangements, and sometimes he had to complain that the conditions under
which the land was held were materially disturbed under the farmer-ship
of the village. It is certain, that in a general way this mode of
administration led to a gradual improvement in the social status of the
peasantry.
[The village and agricultural arrangements.]
One great drawback of investigations into the history of medieval
institutions consists in the very incomplete manner in which the subject
is usually reflected in the documents. We have to pick up bits of
evidence as to very important questions in the midst of a vast mass of
uninteresting material, and sometimes whole sides of the subject are
left in the shade, not by the fault of the inquirer, but in consequence
of disappointing gaps in the contemporary records. Even conveyancing
entries, surrenders, admittances, are of rare occurrence on some of the
more ancient rolls, and the probable reason is, that they were not
thought worthy of enrolment[782]. As for particulars of husbandry they
are almost entirely absent from the medieval documents, and it is only
on the records of the sixteenth and yet later centuries that we have to
rely when we look for some direct evidence of the fact that the manorial
communities had to deal with such questions[783]. And so our knowledge
of these institutions must be based largely on inference. But even
granting all these imperfections of the material, it must be allowed
that the one side of manorial life which is well reflected in the
documents--the juridical organisation of the manor--affords very
interesting clues towards an understanding of the system and of its
origins.
[Collegiate decisions and seignorial power.]
Let us repeat again, that the management of the manor is by no means
dependent on capricious and onesided expressions of the lord's will. On
the contrary, every known act of its life is connected with collegiate
decisions. Notwithstanding the absolute character of the lord with
regard to his villains taken separately, he is in truth but the centre
of a community represented by meetings or courts. Not only the free, but
also the servile tenantry are ruled in accordance with the views and
customs of a congregation of the tenants in their divers classes. There
can be no doubt that the discretion of the lord was often stretched in
exceptional cases, that relations based on moral sense and a true
comprehension of interests often suffered from violence and
encroachment. But as a general rule, and with unimportant exceptions,
the feudal system is quite as much characterised by the collegiate
organisation of its parts as by their monarchical exterior. The manorial
courts were really meetings of the village community under the
presidency of the lord or of his steward.
[Village Courts.]
It is well known that later law recognises three kinds of seignorial
courts: the Leet, the Court Baron, and the Customary Court. The first
has to keep the peace of the King, the others are concerned with purely
manorial affairs. The Leet appears in possession of a police and
criminal jurisdiction in so far as that has not been appropriated by the
King's own tribunals--its parallel being the sheriff's tourn in the
hundred. The Court Baron is a court of free tenants entrusted with some
of the conveyancing and the petty litigation between them, and also with
the exercise of minor franchises. The Customary Court has in its charge
the unfree population of the manor. In keeping with this division the
Court Baron consists according to later theory of a body of free suitors
which is merely placed under the presidency of the steward, while in the
Customary Court the steward is the true and only judge, and the
copyholders, customary tenants or villains, around him are merely called
up as presenters.
[Court Leet.]
The masterly investigations of Mr. Maitland, from which any review of
the subject must start, have shown conclusively, that this latter
doctrine, as embodied in Coke, for instance, draws distinctions and
establishes definitions which were unknown to earlier practice. The Leet
became a separate institution early enough, although its name is
restricted to one province--Norfolk--even at the time of the Hundred
Rolls[784]. The foundation of the court was laid by the frank-pledge
system and the necessity of keeping it in working order. We find the
Leet Court sometimes under the names 'Curia Visus franci plegii,' or
'Visus de borchtruning[785],' and it appears then as a more solemn form
of the general meeting. It is held usually twice a year to register all
the male population from twelve years upwards, to present those who have
not joined the tithings, and sometimes to elect the heads or
representatives of these divisions--the 'Capitales plegii[786].'
Sometimes the tithing coincides with the township, is formed on a
territorial basis, as it were, so that we may find a village called a
tithing[787]. This leads to the inference, that the grouping into tens
was but an approximate one, and this view is further supported by the
fact that we hear of bodies of twelve along with those of ten[788].
[View of Frank-pledge.]
As to attending the meeting, a general rule was enforced to that effect,
that the peasantry must attend in person and not by reason of their
tenure[789]. But as it was out of the question to drive all the men of a
district to the manorial centres on such days, exceptions of different
kinds are frequent[790]. Besides the women and children, the personal
attendants of the lord get exempted, and also shepherds, ploughboys, and
men engaged in driving waggons laden with corn. Servants and aliens were
considered as under the pledge of the person with whom they were
staying.
[Communal accusation.]
The aim of its whole arrangement was to ensure the maintenance of peace,
and therefore everybody was bound on entering the tithing to swear, not
only that he would keep the peace, but that he would conceal nothing
which might concern the peace[791]. It is natural that such a meeting as
that held for the view of frank-pledge should begin to assume police
duties and a certain criminal jurisdiction. Mr. Maitland has shown how,
by its intimate connexion with the sheriff's tourn, the institution of
frank-pledge was made to serve the purpose of communal accusation in the
time of Henry II. The Assize of Clarendon (1166) gave the impulse in
regard to the Sheriff's Court, and private lords followed speedily on
the same line, although they could not copy the pattern in all its
details, and the system of double presentment described by Britton and
Fleta proved too cumbersome for their small courts with only a few
freeholders on them. In any case the jurisdiction of the Court Leet is
practically formed in the twelfth century, and the Quo Warranto
inquiries of the thirteenth only bring out its distinctions more
clearly[792].
[Court baron and customary court.]
The questions as to the opposition between Court Baron and Customary
Court are more intricate and more important. Mr. Maitland has collected
a good deal of evidence to prove that the division did not exist
originally, and that we have before us in the thirteenth century only
one strictly manorial court, the 'halimotum.' I may say, that I came to
the same conclusion myself in the Russian edition of the present work
quite independently of his argument. Indeed a somewhat intimate
acquaintance with the early Court Rolls must necessarily lead to this
doctrine. If some distinctions are made, they touch upon a difference
between ordinary meetings and those which were held under exceptional
circumstances and attended by a greater number of suitors than usual.
The expression 'libera curia' which meets us sometimes in the documents
is an exact parallel with that of 'free gallows,' and means a court held
freely by the lord and not a court of free men. Mr. Maitland adds, that
he has found mention of a court of villains and one of knights, but that
he never came across a court of barons in the sense given in later
jurisprudence to the term 'Court Baron.' Here I must put in a trifling
qualification which does not affect his main position in the least. The
Introduction to the Selden Society's second volume, which is our
greatest authority on this subject, mentions a case when the halimot was
actually divided on the principle laid down by Coke and later lawyers
generally. I mean the case of Steyning, where the Abbot holds a separate
court for free tenants and another for his villains. The instance
belongs to the time of the Edwards, but it is marked as an innovation
and a bad one[793]. It shows, however, that the separation of the courts
was beginning to set in. The Steyning case is not quite an isolated one.
I have found in the Hundred Rolls the expression _Sockemanemot_ to
designate a court attended by free sokemen[794], and it may be suggested
that the formation of the so-called Court Baron may have been
facilitated by the peculiar constitution and customs of those courts
where the unfree element was almost entirely absent. The Danish shires
and Kent could not but exercise a certain influence on the adjoining
counties. However this might be, the general rule is, undoubtedly, that
no division is admitted, and that all the suitors and affairs are
concentrated in the one manorial court--the _halimot_.
[The halimot.]
It met generally once every three weeks, but it happens sometimes that
it is called together without a definite limit of time at the pleasure
of the lord[795]. Cases like that of the manors of the Abbey of Ramsey,
in which the courts are summoned only twice a year, are quite
exceptional, and in the instance cited the fact has to be explained by
the existence of an upper court for these estates, the court of the
honour of Broughton[796]. The common suitors are the peasants living
within the manor--the owners of holdings in the fields of the manor. In
important trials, when free men are concerned, or when a thief has to be
hanged, suitors are called in from abroad--mostly small free tenants who
have entered into an agreement about a certain number of suits to the
court[797]. These foreign suitors appear once every six weeks, twice a
year, for special trials upon a royal writ, for the hanging of
thieves[798], etc. The duty of attending the court is constantly
mentioned in the documents. It involved undoubtedly great hardships,
expense, and loss of time: no wonder that people tried to exempt
themselves from it as much as possible[799]. Charters relating to land
provide for all manner of cases relating to suit of court. We find it
said, for instance, that a tenant must make his appearance on the next
day after getting his summons, even if it was brought to him at
midnight[800]. When a holding was divided into several parts, the most
common thing was that one suit remained due from the whole[801]. All
these details are by no means without importance, because they show that
fiscal reasons had as much to do with the arrangement of these meetings
as real interests: every court gave rise to a number of fines from
suitors who had made default.
[Procedure of the halimot.]
The procedure of the halimot was ruled by ancient custom. All foreign
elements in the shape of advocates or professional pleaders were
excluded. Such people, we are told by the manorial instructions, breed
litigation and dead-letter formalism, whereas trials ought to be
conducted and judged according to their substance[802]. Another
ceremonial peculiarity of some interest concerns the place where
manorial courts are held. It is certain that the ancient gemóts were
held in the open air, as Mr. Gomme shows in his book on early folk-mots.
And we see a survival of the custom in the meeting which used to be held
by the socmen of Stoneleigh on Motstowehill[803]. But in the feudal
period the right place to hold the court was the manorial hall. We find
indeed that the four walls of this room are considered as the formal
limit of the court, so that a man who has stept within them and has then
gone off without sufficient reason is charged with contempt of
court[804]. Indeed, the very name of 'halimot' can hardly be explained
otherwise than as the moot held in the hall[805]. The point is of some
interest, because the hall is not regarded as a purely material
contrivance for keeping people protected against the cold and the rain,
but appears in close connexion with the manor, and as its centre and
symbol.
[The halimot and agriculture.]
We hear very little of husbandry arrangements made by the courts[806],
and even of the repartition of duties and taxes[807]. Entries relating
to the election of officers are more frequent[808], but the largest part
of the rolls is taken up by legal business of all sorts.
[Presentments.]
The entire court, and sometimes a body of twelve jurors, present those
who are guilty of any offence or misdemeanour. Ploughmen who have
performed their ploughing on the lord's land badly, villains who have
fled from the fee and live on strange soil, a man who has not fulfilled
some injunction of the lord, a woman who has picked a lock appended to
the door of her cottage by a manorial bailiff, an inveterate adulterer
who loses the lord's chattels by being fined in the ecclesiastical
courts--all these delinquents of very different kinds are presented to
be punished, and get amerced or put into the stocks, according to the
nature of their offences. It ought to be noticed that an action
committed against the interests of the lord is not punished by any
onesided act of his will, or by the command of his steward, but treated
as a matter of legal presentment. The negligent ploughman is not taken
to task directly by the bailiff or any other overseer, but is presented
as an offender by his fellow-peasants, and according to strict legal
formality. On the other hand, the entries are worded in such a way that
the part played by the court is quite clear only as to the presenting of
misdeeds, while the amercement or punishment is decreed in some manner
which is not specified exactly. We read, for instance, in a roll of the
Abbey of Bec how 'the court has presented that Simon Combe has set up a
fence on the lord's land. Therefore let it be abated.... The court
presented that the following had encroached on the lord's land, to wit,
William Cobbler, Maud Robins, widow (fined 12_d._), John Shepherd (fined
12_d._).... Therefore they are in mercy[809].' Who has ordered the fence
to be thrown down, and who has imposed the fines on the delinquents? The
most natural inference seems to be that the penalties were imposed by
the lord or the presiding officer who represented him in the court. But
it is by no means impossible that the court itself had to decide on the
penalty or the amount of the amercement after first making the
presentment as to the fact. Its action would merely divide itself into
two independent decisions. Such a procedure would be a necessity in the
case of a free tenant who could not be fined at will; and there is
nothing to show that it was entirely different in regard to the servile
tenantry. When the lord interferes at pleasure this is noted as an
exceptional feature[810]. It is quite possible, again, that the
amercement was imposed on the advice or by a decision of certain suitors
singled out from the rest as persons of special credit, as in a case
from the same manorial rolls of Bec[811]. It is hardly necessary to draw
very precise conclusions, as the functions of the suitors do not appear
to have been sharply defined. But for this very reason it would be wrong
to speak of the onesided right of the lord or of his representative to
impose the penalty.
[Civil jurisdiction.]
The characteristic mixture of different elements which we notice in the
criminal jurisdiction of the manorial court may be seen also if we
examine its civil jurisdiction. We find the halimot treating in its
humble region all the questions of law which may be debated in the
courts of common law. Seisin, inheritance, dower, leases, and the like
are discussed, and the pleading, though subject to the custom of the
manor, takes very much the shape of the contentions before the royal
judges. Now this civil litigation is interesting from two points of
view: it involves statements of law and decisions as to the relative
value of claims. In both respects the parties have to refer to the body
of the court, to its assessors or suitors. The influence of the
'country' on the judgment goes further here than in the Common Law
Courts, because there is no independent common law to go by, and the
custom of the manor has generally to be made out by the manorial tenants
themselves. And so a party 'puts himself on his country,' not only in
order to decide some issue of fact, but also in regard to points of
customary law. Inquisitions are made and juries formed quite as much to
establish the jurisprudence of the court as to decide who has the better
claim under the said jurisprudence. Theoretically it is the full court
which is appealed to, but in ordinary cases the decision rests with a
jury of twelve, or even of six. The authority of such a verdict goes
back however to the supposed juridical sense or juridical knowledge of
the court as a body. Now it cannot be contested that such an
organisation of justice places all the weight of the decision with the
body of the suitors as assessors. The presiding officer and the lord
whom he represents have not much to do in the course of the
deliberation. If we may take up the comparison which Mr. Maitland has
drawn with German procedure[812], we shall say that the 'Urtheilfinder'
have all the best of it in the trial as against the 'Richter.' This
'Richter' is seemingly left with the duties of a chairman, and the
formal right to draw up and pronounce a decision which is materially
dependent on the ruling of the court. But a special reserve of equity is
left with the lord, and in consequence of its operation we find some
decisions and sentences altered, or their execution postponed[813]. I
have to endorse one more point of Mr. Mainland's exposition, namely,
his view of the presentment system as of a gradual modification of the
original standing of the manorial suitors as true assessors of the
court. Through the influence of the procedure of royal courts, on the
one hand, of the stringent classifications of the tenantry in regard to
status on the other, the presenters were gradually debased, and legal
learning came to maintain that the only judge of a customary court was
its steward. But a presentment of the kind described in the manorial
rolls vouches for a very independent position of the suitors, and indeed
for their prevalent authority in the constitution of the tribunal.
[Surrender and admittance.]
The conveyancing entries, although barren and monotonous at first sight,
are very important, in so far as they show, better perhaps than anything
else, the part played by the community and by its testimony in the
transmission of rights. It has become a common-place to argue that the
practice of surrender and admittance characterises the absolute
ownership that the lord has in the land held in villainage, and proceeds
from the fact that every holder of servile land is in truth merely an
occupier of the plot by precarious tenure. Every change of occupation
has to be performed through the medium of the lord who 're-enters' the
tenement, and concedes it again as if there had been no previous
occupation at all and the new tenant entered on a holding freshly
created for his use. None the less, a theory which lays all the stress
in the case on the surrender into the hand of the lord, and explains
this act from the point of view of absolute ownership, is wrong in many
respects.
[Meaning of surrender.]
To begin with the legal transmission of a free holding, although the
element of surrender has as it were evaporated from it, it is quite as
much bound up with the fiction of the absolute ownership of the lord as
is the surrender and admittance of villains and copyholders. The
ceremony of investiture had no other meaning but that of showing that
the true owner re-entered into the exercise of his right, and every act
of homage for land was connected with an act of feoffment which, though
obligatory, first by custom and then by law, was nevertheless no mere
pageant, because it gave rise to very serious claims of service and
casual rights in the shape of wardship, marriage, and the like. The king
who wanted to be everybody's heir was much too consequent an exponent of
the feudal doctrine, and his successors were forced into a gentler
practice. But the fiction of higher ownership was lurking behind all
these contentions of the upper class quite as much as behind the
conveyancing ceremonies of the manorial court. And in both cases the
fiction stretched its standard of uniformity over very different
elements: allodial ownership was modified by a subjection to the
'dominium directum,' on the one hand; leases and precarious occupation
were crystalised into tenure, on the other. It is not my object to trace
the parallel of free and peasant holding in its details, but I lay
stress on the principle that the privileged tenure involved the notion
of a personal concession quite as much as did the base tenure, and that
this fundamental notion made itself felt both in conveyancing
formalities and in practical claims.
[The rod and the festuca.]
I am even inclined to go further: it seems to me that the manorial
ceremony of surrender and admittance, as considered from the point of
view of legal archæology, may have gone back to a practice which has
nothing to do with the lord's ownership, although it was ultimately
construed to imply this notion. The tenant enfeoffed of his holding on
the conditions of base tenure was technically termed tenant by copy of
court roll or tenant by the rod--_par la verge_. This second
denomination is connected with the fact that, in cases of succession as
well as in those of alienation, the holding passed by the ceremonial
action of the steward handing a rod to the person who was to have the
land. Now, this formality looks characteristic enough; it is exactly the
same as the action of the 'salman' in Frankish law where the
transmission of property is effected by the handing of a rod called
'festuca.' The important point is, that the 'salman' was by no means a
representative of lordship or ownership, but the necessary middleman
prescribed by customary law, in order to give the transaction its
consecration against all claims of third persons. The Salic law, in its
title 'de affatomire,' presents the ceremony in a still earlier stage:
when a man wants to give his property to another, he has to call in a
middleman and witnesses; into the hands of this middleman he throws a
rod to show that he relinquishes all claim to the property in question.
The middleman then behaves as owner and host, and treats the witnesses
to a meal in the house and on the land which has been entrusted to him.
The third and last act is, that this intermediate person passes on the
property to the donee designated by the original owner, and this by the
same formal act of throwing the rod[814]. The English practice has
swerved from the original, because the office of the middleman has
lapsed into the hands of the steward. But the characteristic handing of
the rod has well preserved the features of the ancient 'laisuwerpitio'
('the throwing on to the bosom'), and, indeed, it can hardly be
explained on any other supposition but that of a survival of the
practice. I beg the reader to notice two points which look decisive to
me: the steward when admitting a tenant does not use the rod as a symbol
of his authority, because he does not keep it--he gives it to the person
admitted. Still more, in the surrender the rod goes from the
peasant-holder to the steward. Can there be a doubt that it symbolises
the plot of land, or rather the right over the plot, and that in its
passage from hand to hand there is nothing to show that the steward as
middleman represents absolute ownership, while the peasants at both ends
are restricted to mere occupation on sufferance[815]? Is it necessary
to explain that these ceremonial details are not trifles from a
historical point of view? Their arrangement is not a matter of chance
but of tradition, and if later generations use their symbols
mechanically, they do not invent them at haphazard. Symbols and
ceremonies are but outward expressions of ideas, and therefore their
combinations are ruled by a certain logic and are instinct with meaning.
In a sense their meaning is deeper and more to be studied than that
supplied by theories expressed in so many words: they give an insight
into a more ancient order of things. It may be asked, in conclusion, why
a Frankish form should be found prevalent in the customary arrangement
of the English manorial system? The fact will hardly appear strange when
we consider, firstly, that the symbolical acts of investiture and
conveyancing were very similar in Old English and Old Frankish law[816],
and that many practices of procedure were imported into England from
France, through the medium of Normandy. It is impossible at the present
date to trace conclusively the ceremonies of surrender and admittance in
all their varieties and stages of development, but the most probable
course of progress seems to have been a passage from symbolical
investiture in the folk-law of free English ceorls through the Frankish
practice of 'affatomire,' to the feudal ceremony of surrender and
admittance by the steward.
[The court roll.]
And now let us take up the second thread of our inquiry into the
manorial forms of conveyancing. A tenant by the verge is also a tenant
by copy of court roll. The steward who presided at the court had to keep
a record of its proceedings, and this record had a primary importance
for the servile portion of the community. While the free people could
enter into agreements and perform legal acts in their own name and by
charter, the villains had to content themselves with ceremonial actions
before the court. They were faithful in this respect to old German
tradition, while the privileged people followed precedents which may be
ultimately traced to a Roman origin. The court roll or record of
manorial courts enabled the base tenant to show, for instance, that some
piece of land was his although he had no charter to produce in proof of
his contention. And we find the rolls appealed to constantly in the
course of manorial litigation[817]. But the rolls were nothing else than
records of actions in the court and before the court. They could
actually guide the decision, but their authority was not independent; it
was merely derived from the authority of the court. For this reason the
evidence of the rolls, although very valuable, was by no means
indispensable. A claimant could go past them to the original fount, that
is, to the testimony of the court. And here we must keep clear of a
misconception suggested by a first-sight analysis of the facts at hand.
It would seem that the verdict of neighbours, to which debateable claims
are referred to in the manorial courts, stands exactly on a par with the
verdicts of jurymen taken by the judges of the Royal Courts. This is not
so, however. It is true that the striving of manorial officers to make
the procedure of halimotes as much like the common law procedure as
possible, went far to produce similarity between forms of actions,
presentments, verdicts and juries, in both sets of tribunals. But
nevertheless, characteristic distinctions remained to show that the
import of some institutions brought near each other in this way was
widely different. I have said already that the peasant suitors of the
halimote are appealed to on questions of law as well as on questions of
fact. But the most important point for our present purpose is this: the
jurors called to substantiate the claim of a party in a trial are mere
representatives of the whole court. The testimony of the court is taken
indirectly through their means, and very often resort is had to that
testimony without the intermediate stage of a jury. Now this is by no
means a trifle from the point of view of legal analysis. The grand and
petty juries of the common law are means of information, and nothing
more. They form no part of the tribunal, strictly speaking; the court is
constituted by the judges, the lawyers commissioned by the king, who
adopt this method in investigating the facts before them, because a
knowledge of the facts at issue, and an understanding of local
conditions surrounding them, is supposed to reside naturally in the
country where the facts have taken place[818]. Historically the
institution is evolved from examinations of witnesses and experts, and
has branched off in France into the close formalism of inquisitorial
process. The manorial jury, on the other hand, represents the court, and
interchanges with it[819]. For this reason, we may speak directly of the
court instead of treating of its delegates. And if the verdict of the
court is taken, it is not on account of the chance knowledge, the
presumable acquaintance of the suitors with facts and conditions, but as
a living remembrance of what took place before this same court, or as a
re-assertion of its power of regulating the legal standing of the
community. The verdict of the suitors is only another form of the entry
on the rolls, and both are means of securing the continuity of an
institution and not merely of providing information to outsiders. Of
course, claims may not be always reduced to such elementary forms that
they can be decided by a mere reference to memory, the memory of the
constituted body of the court. A certain amount of reasoning and
inference may be involved in their settlement, a set of juridical
doctrines is necessary to provide the general principles of such
reasoning. And in both respects the manorial court is called upon to
act. It is considered as the repository of legal lore, and the exponent
of its applications. This means that the court is, what its name
implies, a tribunal and not a set of private persons called upon to
assist a judge by their knowledge of legal details or material
facts[820].
[Communal testimony.]
The whole exposition brings us back to a point of primary importance.
The title by which land is held according to manorial custom is derived
from communal authority quite as much as from the lord's grant. Without
stepping out of the feudal evidence into historical inquiry, we find
that civil arrangements of the peasantry are based on acts performed
through the agency of the steward, and before the manorial court, which
has a voice in the matter and vouches for its validity and remembrance.
The 'full court' is noticed in the records as quite as necessary an
element in the conveyancing business as the lord and his steward,
although the legal theory of modern times has affected to take into
account only these latter[821]. Indeed, it is the part assumed by the
court which appears as the distinctive, if not the more important
factor. A feoffment of land made on the basis of free tenure proceeds
from the grantor in the same way as a grant on the conditions of base
tenure; freehold comes from the lord, as well as copyhold. But copyhold
is necessarily transferred in court, while freehold is not. And if we
speak of the presentment of offences through the representatives of
townships, as of the practice of communal accusation, even so we have to
call the title by which copyhold tenure is created a claim based on
communal testimony.
[Courts on the ancient demesne.]
All the points noticed in the rolls of manors held at common law are to
be found on the soil of ancient demesne, but they are stated more
definitely there, and the rights of the peasant population are asserted
with greater energy. Our previous analysis of the condition of ancient
demesne has led us to the conclusion, that it presents a crystallisation
of the manorial community in an earlier stage of development than in the
ordinary manor, but that the constitutive elements in both cases are
exactly the same. For this reason, every question arising in regard to
the usual arrangements ought to be examined in the light of the evidence
that comes from the ancient demesne.
We have seen that it would be impossible to maintain that originally the
steward was the only judge of the manorial tribunal; the whole court
with its free and unfree suitors participates materially in the
administration of justice, and its office is extended to questions of
law as well as to issues of fact. On the other hand, it was clear that
the steward and the lord were already preparing the position which they
ultimately assumed in legal theory, that in the exercise of their
functions they were beginning to monopolise the power of ultimate
decision and to restrict the court to the duty of preliminary
presentment. The same parties are in presence in the court of ancient
demesne, but the right of the suitors has been summed up by legal theory
in quite the opposite direction. The suitors are said to be the judges
there; legal dogmatism has set up its hard and fast definitions, and
drawn its uncompromising conclusions as if all the historical facts had
always been arrayed against each other without the possibility of common
origins and gradual development. Is it necessary to say that the
historical reality was very far from presenting that neat opposition?
The ancient demesne suitors are villains in the main, though privileged
in many respects, and the lord and steward are not always playing such a
subordinate part that one may not notice the transition to the state of
things that exists in common law manors. It is curious, anyhow, that
later jurisprudence was driven to set up as to the ancient demesne court
a rule which runs exactly parallel to the celebrated theory that there
must be a plurality of free tenants to constitute a manor. Coke
expresses it in the following way: 'There cannot be ancient demesne
unless there is a court and suitors. So if there be but one suitor, for
that the suitors are the judges, and therefore the demandant must sue at
common law, there being a failure of justice within the manor[822].' We
shall have to speak of this rule again when treating of classes in
regard to manorial organisation. But let us notice, even now, that in
this view of the ancient demesne court the suitors are considered as the
cardinal element of its constitution. The same notion may be found
already in trials of the fourteenth and even of the thirteenth century.
A curious case is reported in the Year Books of 11/12 Edw. III[823].
Herbert of St. Quentyn brought a writ of false judgment against John of
Batteley and his wife, the judgment having been given in the court of
Cookham, an ancient demesne manor. The suitors, or suit-holders as they
were called there, sent up their record to the King's Bench, and many
things were brought forward against the conduct of the case by the
counsel for the plaintiff, the defendant trying to shield himself by
pleading the custom of the manor to account for all unusual practices.
The judges find, however, that one point at least cannot be defended on
that ground. The suitors awarded default against the plaintiff because
he had not appeared in person before them, and had sent an attorney, who
had been admitted by the steward alone and not in full court. Stonor,
C.J., remarks, 'that it is against law that the person who holds the
court is not suffered to record an attorney for a plea which will be
discussed before him.' The counsel for the plaintiff offer to prove that
the custom of the manor did not exclude an attorney appointed before the
steward, on condition that the steward should tell it to the suitors in
the next court after receiving him. The case is interesting, not merely
because it exhibits the suit-holders in the undisputed position of
judges, but also because it shows the difficulties created by the
presence of the second element of the manorial system, the seignorial
element, which would neither fit exactly into an entirely communal
organisation nor be ousted from it[824]. The difficulty stands quite on
the same line with that which meets us in the common law manor, where
the element of the communal assessors has been ultimately suppressed and
conjured away, as it were, by legal theory. The results are
contradictory, but on the same line, as I say. And the more we go back
in time, the more we find that both elements, the lord and the
community, are equally necessary to the constitution of the court. In
the thirteenth century we find already that the manorial bailiffs are
made responsible for the judgment along with the suitors and even before
them[825].
The rolls of ancient demesne manors present a considerable variety of
types, shading off from an almost complete independence of the suitors
to forms which are not very different from those of common law manors.
Stoneleigh may be taken as a good specimen of the first class.
[The court at Stoneleigh.]
The manor was divided into six hamlets, and every one of these consisted
of eight virgates of land which were originally held by single socmen;
although the regularity of the arrangement seems to have been broken up
very soon in consequence of increase of population, extension of the
cultivated area, and the sale of small parcels of the holdings. The
socmen met anciently to hold courts in a place called Motstowehill, and
afterwards in a house which was built for the purpose by the Abbot. The
way in which the Register speaks of the admission of a socman to his
holding is very characteristic: 'Every heir succeeding to his father
ought to be admitted to the succession in his fifteenth year, and let
him pay relief to the lord, that is, pay twice his rent. And he will
give judgments with his peers the socmen; and become reeve for the
collection of the lord's revenue, and answer to writs and do everything
else as if he was of full age at common law.' The duty and right to give
judgment in the Court of Stoneleigh is emphatically stated on several
occasions, and altogether the jurisdictional independence of the court
and of its suitors is set before us in the smallest but always
significant details. If somebody is bringing a royal close writ of right
directed to the bailiffs of the manor it cannot be opened unless in full
court. When the bailiff has to summon anybody by order of the court he
takes two socmen to witness the summons. Whenever a trial is terminated
either by some one's default in making his law or by non-defence the
costs are to be taxed by the court. The alienation of land and
admittance of strangers are allowed only upon the express consent of the
court[826]. In one word, every page of the Stoneleigh Register shows a
closely and powerfully organised community, of which the lord is merely
a president.
[Rolls of King's Ripton.]
The rolls of King's Ripton are not less explicit in this respect. People
are fined for selling land without the licence of the court, for selling
it 'outside the court[827].' The judgment depends entirely on the
verdict given by the community of suitors or its representatives the
jurors. When the parties rely on some former decision, arrangement, or
statement of law, they appeal to the rolls of the court, which, as has
been said already, present nothing else but the recorded jurisprudence
of the body of suitors[828]. The extent of the legal self-government of
this little community may be well seen in the record of a trial in which
the Abbot of Ramsey, the lord of the manor, is impleaded upon a little
writ of right by one of his tenants[829]. But it is hardly necessary to
dwell on so normal an event. I should like to take up for once the
opposite standpoint, and to show that in these very communities on the
ancient demesne elements are apparent which have thrived and developed
in ordinary manors to such an extent as to obscure their
self-government. In the Rolls of King's Ripton we might easily notice a
number of instances in which the influence of the lord makes itself felt
directly or indirectly through the means of his steward. We come, for
instance, on the following forms of pleading: An action of dower is
brought, and the defendants ask that the laws and customs hitherto used
in the court should be observed in regard to them--they have a right to
three summonses, three distraints, and three essoins, and if they make
default after that, the land ought to be taken into the lord's hand,
when, but only if it is not replevied in the course of fifteen days, it
will be lost for good and all. All these demands are granted by the
steward, with whom the decision, at least formally, rests[830]. Again,
when we hear that the whole court craves leave to defer its judgment
till the next meeting, it is clear that it rests with the steward to
grant this request[831]. We may find now and then a consideration for
the interests of the lord which transcends the limits of mere formal
right, as in a case where a certain Margery asks the court, without any
writ of right or formal action, that an inquest may be held as to a part
of her messuage which is detained in the hands of the Abbot, although
she performs the service due for it. The inquest is held, and apparently
ends in her favour, but she is directed at the same time to go and speak
with the lord about the matter. Ultimately she gets what she wants after
this private interview[832]. The proceedings are irregular and
interesting: the usual forms of action are disregarded; a verdict is
given, but the material decision is left with the lord, and is to be
sought for by private intercession. Quite close to this entry we find an
instance which is in flagrant contradiction with such a considerate
treatment of all parties. The jurors of the court are called upon to
decide a question of testament and succession. They say that none of
them was present when the testament was made, and that they know nothing
about it, and will say nothing about it. 'And so leaving their business
undone, and in great contempt of the lord and of his bailiffs, they
leave the court. And therefore it is ordered that the bailiffs do cause
to be levied a sum of 40 s. to the use of the lord from the property of
the said jurors by distress continued from day to day[833].' This case
may stand as a good example both of the sturdy self-will which the
peasantry occasionally asserted in their dealings with the lord, and of
the opportunities that the lord had of asserting his superiority in a
very high-handed manner.
But we need not even turn to any egregious instances in which the lord's
power is thus displayed. The usual forms of surrender are there to show
that, as regards origins, we have the same thing here as in ordinary
manors, although the peculiarities of the ancient demesne have brought
forward the features of communal organisation in a very marked way, and
have held the element of lordship in check.
[Free suitors in the halimot.]
We have seen that there was only one halimot in the thirteenth and the
preceding centuries, and that the division into customary court and
court baron developed at a later time. We have seen, secondly, that this
halimot was a meeting of the community under the presidency of the
steward, and that the relative functions of community and steward became
very distinct only in later days. It remains to be seen how far the
fundamental class division between free tenants and villains affected
the management of the court. As there was but one halimot and not two,
both classes had to meet and to act concurrently in it. The free people
now and then assert separate claims: a chaplain wages his law on the
manor of Brightwaltham that he did not defame the lord's butler, but
when he gets convicted by a good inquest of jurors of having broken the
lord's hedges and carried away the lord's fowls, he will not justify
himself of these trespasses and departs in contempt, doubtless because
he will not submit to the judgment of people who are not on a par with
him[834]. Freeholders object to being placed on ordinary juries of the
manor[835], although they will serve as jurors on special occasions, and
as a sort of controlling body over the common presenters[836].
Amercements are sometimes taxed by free suitors[837]. But although some
division is apparent in this way, and the elements for a separation into
two distinct courts are gathering, the normal condition is one which
does not admit of any distinction between the two classes. We come here
across the same peculiarity that we have seen in police and criminal
law, namely, that the fundamental line of civil condition seems
disregarded. Even when a court is mainly composed of villains, and in
fact called curia villanorum, some of its suitors may be
freeholders[838]. Even in a court composed of free people, like that of
Broughton, there may be villains among them[839]. The parson,
undoubtedly a free man, may appear as a villain in some rolls[840].
Altogether, the fact has to be noticed as a very important one, that
whatever business the freeholders may have had in connexion with the
manorial system, this business was transacted by courts which consisted
chiefly of servile tenants[841]. In fact the presenting inquests, on
which the free tenants refused to serve, would not be prevented by their
composition from attainting these free tenants.
[Requirement of free suitors.]
This seems strange and indeed anomalous. One point remains to be
observed which completes the picture: although the great majority of the
thirteenth century peasantry are mere villains, although on some manors
we hardly distinguish freeholders, there is a legal requirement that
there should be at least a few freeholders on every manor. Later theory
does not recognise as a manor an estate composed only of demesne land
and copyhold. Freeholds are declared to be a necessary element, and
should they all escheat, the manor would be only a reputed one[842]. We
have no right to treat this notion as a mere invention of later times.
It comes forward again and again in the shape of a rule, that there can
be no court unless there are some free tenants to form it. The number
required varies. In Henry VIII's reign royal judges were contented with
two. In John's time as many as twelve were demanded, if a free outsider
was to be judged. The normal number seems to have been four, and when
the record of the proceedings was sent up to the King's tribunal four
suitors had to carry it. The difference between the statement of Coke
and the earlier doctrine lies in the substitution of the manor for the
court. Coke and his authorities, the judges of Henry VIII's reign, speak
of the manor where the older jurisprudence spoke of the court. Their
rule involves the more ancient one and something in addition, namely,
the inference that if there be no court baron there is no manor. Now
this part of the doctrine, though interesting by itself, must stand over
for the present. Let us simply take the assertion that free suitors are
necessary to constitute a court, and apply it to a state of things when
there was but one strictly manorial court, the halimot. In 1294 it is
noted in the report of a trial that, 'in order that one may have a
court he must have at least four free tenants, without borrowing the
fourth tenant[843].' Now a number of easy explanations seem at hand:
four free tenants at least were necessary, because four such tenants
were required to take the record up to the king's court and to answer
for any false judgment; a free tenant could protest against being
impleaded before unfree people; some of the franchises could not be
exercised unless there were free suitors to form a tribunal. But all
these explanations do not go deep enough: they would do very well for
the later court baron, but not for the halimot. It is not asserted that
free suitors are necessary only in those cases where free tenants are
concerned--it is the court as such which depends on the existence of
such free suitors, the court which has largely, if not mostly, to deal
with customary business, and consists to a great extent of customary
tenants. And, curiously enough, when the court baron disengages itself
from the halimot, the rule as to suitors, instead of applying in a
special way to this court baron, for which it seems particularly fitted,
extends to the notion of the manor itself, so that we are driven to ask
why the manor is assumed to contain a certain number of free tenants and
a court for them. Why is its existence denied where these elements are
wanting? Reverting to the thirteenth century, we have to state similar
puzzling questions: thus if one turns to the manorial surveys of the
time, the freehold element seems to be relatively insignificant and more
or less severed from the community; if one takes up the manorial rolls,
the halimot is there with the emphatically expressed features and even
the name of a court of villains; but when the common law is concerned,
this same tribunal appears as a court of freeholders. The manors of the
Abbey of Bec on English soil contained hardly any freeholders at all.
Had the Abbey no courts? Had it no manors from the standpoint of Coke's
theory? What were the halimots whose proceedings are recorded in the
usual way on its manorial rolls? In presence of these flagrant
contradictions I cannot help thinking that we here come across one of
those interesting points where the two lines of feudal doctrine do not
meet, and where different layers of theory may be distinguished.
[Free suitors and freeholders.]
Without denying in the least the practical importance of such notions as
that which required that one's judges should be one's peers, or of such
institutions as the bringing up of the manorial record to the King's
Court, I submit that they must have exercised their influence chiefly by
calling forth occasions when the main principle had to be asserted. Of
course they could not create this principle: the idea that the halimot
was a communal court constituted by free suitors meeting under the
presidency of the steward, must have existed to support them. That idea
is fully embodied in the constitution of the ancient demesne tribunal,
where the suitors were admitted to be the judges, although they were
villains, privileged villains and nothing else. Might we not start from
the original similarity between ancient demesne and ordinary manors, and
thus explain how the rule as to the necessary constitution of the
manorial court was formed? It seems to me a mere application of the
higher rule that a court over free people must contain free people, to a
state of things where the distinction between free and unfree was not
drawn at the same level as in the feudal epoch, but was drawn at a lower
point. We have seen that a villain was in many respects a free man; that
he was accepted as such in criminal and police business; that he was
free against everybody but his lord in civil dealings; that the
frank-pledge system to which he belonged was actually taken to imply
personal freedom, although the freeholders ultimately escaped from it. I
cannot help thinking that a like transformation of meaning as in the
case of frank-pledge did take place in regard to the free suitors of the
manorial court. The original requirement cannot have concerned
freeholders in the usual legal sense, but free and lawful men, 'worthy
of were and wite'--a description which would cover the great bulk of
the villains and exclude slaves and their progeny. When the definitions
of free holding and villainage got to be very stringent and marked, the
_libere tenentes_ assumed a more and more overbearing attitude and got a
separate tribunal, while the common people fell into the same condition
as the progeny of slaves. In a word, I think that the general movement
of social development which obliterated the middle class of Saxon ceorls
or customary free tenants (leaving only a few scattered indications of
its existence) made itself felt in the history of the manorial court by
the substitution of exceptional freeholders for the free suitors of the
halimot. Such a substitution had several results: the diverging history
of the ancient demesne from that of the ordinary manorial courts, the
elevation of the court baron, the growth of the notion that in the
customary court the only judge was the steward. One significant little
trait remains to be observed in this context. It has been noticed[844]
that care seems to be taken that there should be certain Freemen or
Franklains in every manor. The feature has been mentioned in connexion
with the doctrine of free suitors necessary to a court. But these people
are by no means free tenants; in the usual legal sense they are mostly
holding in villainage, and their freedom must be traced not to the dual
division of feudal times, but to survivals of the threefold division
which preceded feudalism, and contrasted slave, free ceorl, and military
landowner.
[Honorial Courts.]
Before concluding this chapter I have to say a few words upon those
forms of the manorial court which appear as a modification of the normal
institution. Of the ancient demesne tribunal I have already spoken, but
there are several other peculiar formations which help to bring out the
main ideas of manorial organisation, just because they swerve from it in
one sense or another. Mr. Maitland has spoken so well of one of these
variations, that I need not do anything more than refer the reader to
his pages about the Honour and its Court[845]. He has proved that it is
no mere aggregate of manors, but a higher court, constructed on the
feudal principle, that every lord who had free tenants under him could
summon them to form a court for their common dealings. It ought to be
observed, however, that the instance of Broughton, though its main basis
is undoubtedly this feudal doctrine, still appears complicated by
manorial business, which is brought in by way of appeal and evocation,
as well as by a mixture between the court of the great fief and the
halimot of Broughton.
[The soke.]
A second phenomenon well worth consideration is the existence in some
parts of the country of a unit of jurisdiction and management which does
not fall in with the manor,--it is called the _soke_, and comprises free
tenantry dispersed sometimes over a very wide area. A good example of
this institution is given by Mr. Clark's publication on the Soke of
Rothley in Lincolnshire[846]. We need not go into the details of the
personal status of the tenants, they clearly come under the description
of free sokemen. Our present concern is that they are not simply
arranged into the manor of Rothley as usual, but are distinguished as
forming the soke of this manor. They are rather numerous--
twenty-three--and come to the lord's court, but their services are
trifling as compared with those of the customers, and their possessions
are so scattered, that there could be no talk of their joining the
agrarian unit of the central estate. What unites them to the manor is
evidently merely jurisdiction, although in feudal theory they are
assumed to hold of the lord of Rothley. But they are set apart as
forming the soke, and this shows them clearly to be subjected to
jurisdiction rather than anything else. It is interesting to note such
survivals in the thirteenth century, and within the realm of feudal law
the case of Rothley is of course by no means the only one[847]. If we
contrast this exceptional appearance of the soke outside the manor with
the normal arrangement by which all the free tenants are fitted into the
manor, we shall come to the conclusion that originally the element of
jurisdiction over freeholders might exist separately from the management
of the estate, but that in the general course of events it was merged
into the estate and formed one of the component elements of the manorial
court. The case of Rothley is especially interesting because the men of
the soke or under the soke do not go to a court of their own, but simply
join the manorial meetings. If they are still kept apart, it is evident
that their relation to the court, and indeed to the manor, was what made
them distinct from everybody else. In short, to state the difference in
a pointed form, the other people were tenants and they were subjects.
[The Aston case.]
One more point remains to be noticed. In order to make it clear we must
by way of exception start from the arrangements of a later epoch than
that which we have been discussing. The manor of Aston and Cote, which
may have been carved out with several others from the manor of Bampton,
presents a very good instance of a village meeting which does not
coincide with the manorial divisions, and appears constructed on the
lines of a village community which has preserved its unity, although
several manors have grown out of it. It was stated by the lord of the
manor of Aston and Cote in 1657, that 'there hath been a custom time out
of mind that a certain number of persons called the _Sixteen_, or the
greater part of them, have used to make orders, set penalties, choose
officers, and lot meadows, and do all such things as are usually
performed or done in the courts baron of other manors.' All the details
of this case are interesting, but we need not go into them, because they
have been set out with sufficient care in the existing literature, and
summed up by Mr. Gomme in his book on the Village Community[848]. It is
the main point which we must consider. Here is an assembly meeting to
transact legal and economic business, which acts on the pattern of
manorial courts. And if not a manorial court, what is it? I think it is
difficult to escape the conclusion that it is a meeting of the village
community outside the lines of manorial division. The supposition that
it represents the old manor of Bampton, to which Aston, Cote, Bampton
Pogeys, Bampton Priory are subordinated, is entirely insufficient to
explain the case, because then we should not have had to recognise new
manors in the fractions which were detached from Bampton, and there
would have been no call to speak of a peculiar assembly assuming the
competence of a court baron--we should have had the manorial court and
the lord of Bampton, and not the Sixteen to speak of. The fact is patent
and significant. It shows by itself that there may have been cases where
the village community and the manor did not coincide, and the village
community had the best of it.
[Manor and Township.]
The first proposition does not admit of doubt. It was of quite common
occurrence that the land of one village should be broken up between
several manors, although its open field system and all its husbandry
arrangements remained undivided. The question arises, how was that
system to work? There could be express agreement between the
owners[849]; ancient custom and the interference of manorial officers
chosen from the different parts could help on many occasions. But it is
impossible to suppose, in the light of the Bampton instance, that
meetings might not sometimes exist in such divided villages which took
into their hands the management of the many economic questions arising
out of common husbandry: questions about hedges, rotation of crops,
commonable animals, usage as to wood, moor, pasture, and so forth. A
diligent search in the customs of manors at a later period, say in the
sixteenth and seventeenth centuries, must certainly disclose a number of
similar instances. Our own material does not help us, because it passes
over questions of husbandry, and touches merely jurisdiction, ownership,
and tenant-right. And so we must restrict ourselves to notice the
opening for an inquiry in that direction.
[Township and Manor.]
Such an inquiry must also deal with the converse possibility, namely,
the cases in which the manor is so large that several village units fit
into it. We may find very frequently in some parts of the country large
manors which are composed of several independent villages and
hamlets[850]. On large tracts of land these villages would form separate
open field groups. Although the economic evidence is not within our
reach in early times, we have indications of separate village meetings
under the manorial court even from the legal point of view taken by the
court-rolls. In several instances the entries printed in the second
volume of the Selden Society publications point to the action of
townships as distinct from the manorial court, and placed under it. In
Broughton a man distrained for default puts himself on the verdict of
the whole court and of the township of Hurst, both villains and freemen,
that he owes no suit to the court of Broughton, save twice a year and to
afforce the court. Be it noted that the court of Hurst is distinguished
from the township, which appears subordinated to it, probably because
there were other townships in the manor of Hurst. At the same time the
township is called upon to act as an independent unit in the matter.
Even so in the rolls of Hemingford, the township which forms the centre
of the manor and gives its name to it, is sometimes singled out from the
rest of the court as an organised corporation[851]. When township and
tithing coincided, as in the case of Brightwaltham, the tithing gets
opposed to the general court in the same way[852]. Altogether the
corporate unity of townships is well perceivable behind the feudal
covering of the manor. Mr. Maitland says with perfect right, 'the manor
was not a unit in the governmental system; the county was such a unit,
so was the hundred. So again was the vill, for the township had many
police duties to perform; it was an amerciable, punishable unit; not so
the manor, unless it coincided with the vill[853].' And then he proceeds
to suggest that the true explanation of the manor is that it represents
an estate which could be and was administered as a single economic and
agrarian whole. I am unable to follow him entirely as to this last
point, because it seems pretty clear that the open field arrangements
followed the division into townships, and not those into manors. From
the point of view of the services, of the concentration of duties of the
tenantry in regard to the lord, the manor was a whole, and for this very
reason it was a whole as regards geldability, but this is only one side
of the economic structure of society, the upper side, if one may be
allowed to say so. The arrangement of actual cultivation is the other
side, and it is represented by the township with its communal open
fields. Now in a great many cases the estate and the community fitted
into each other; and of these instances there is no need to speak any
further. But if both did not fit, the agrarian unity is the township and
not the manor. The open field system appears in this connexion as
outside the manor, and proceeding from the rural community by itself.
Let us sum up the results obtained in this chapter.
1. The village communities contained in the manorial system are
organised on a system of self-government which affords great help to the
lord in many ways, but certainly limits his power materially, and
reduces him to the position of a constitutional ruler.
2. The original court of the manor was one and the body of its suitors
was one. The distinction between courts for free tenants and customary
courts grows up very gradually in the fourteenth century, and later.
3. The steward was not the only judge of the halimot. The judgment came
from the whole court, and its suitors, without distinction of class,
were necessary judicial assessors.
4. The court of ancient demesne presents the same elements as the
ordinary halimot, although it lays greater stress on the communal side
of the organisation.
5. The conveyancing entries on the rolls do not prove the want of right
on the part of the peasant holders. On the contrary, they go back to
very early communal practice.
6. The rule which makes the existence of the manor dependent on the
existence of free suitors is derived from the conception of the court as
a court of free and lawful men, taking in villains and excluding slaves.
7. The manor by itself is the estate; the rural community and the
jurisdiction of the soke are generally fused with it into one whole; but
in some cases the two latter elements are seen emerging as independent
growths from behind the manorial organisation.
CHAPTER VI.
THE MANOR AND THE VILLAGE COMMUNITY.
_Conclusions._
If we look at the village life of mediaeval England, not for the purpose
of dissecting it into its constitutive elements, but in order that we
may detect the principles that hold it together and organise it as a
whole, we shall be struck by several features which make it quite unlike
the present arrangement of rural society. Even a casual observer will
not fail to perceive the contrast which it presents to that free play of
individual interests and that undisputed supremacy of the state in
political matters, which are so characteristic of the present time. And
on the other hand there is just as sharp a contrast between the manorial
system and a system of tribal relationships based on blood relationship
and its artificial outgrowths; and yet again it may be contrasted with a
village community built upon the basis of equal partnership among free
members. It is evident, at the same time, that such differences, deep
though they are, cannot be treated as primordial and absolute divisions.
All these systems are but stages of development, after all, and the most
important problem concerning them is the problem of their origins and
mutual relations. The main road towards its solution lies undoubtedly
through the demesne of strictly historical investigation. Should we
succeed in tracing with clearness the consecutive stages of the process
and the intermediate links between them, the most important part of the
work will have been done. This is simple enough, and seems hardly worth
mentioning. But things are not so plain as they look.
To begin with, even a complete knowledge of the sequence of events would
not be sufficient since it would merely present a series of arrangements
following upon each other in time and not a chain of causes and effects.
We cannot exempt ourselves from the duty of following up the
investigation by speculations as to the agencies and motives which
produced the changes. But even apart from the necessity of taking up
ultimately what one may call the dynamic thread of the inquiry, there is
considerable difficulty in obtaining a tolerably settled sequence of
general facts to start with. Any one who has had to do with such studies
knows how scanty the information about the earlier phenomena is apt to
be, how difficult it is to distinguish between the main forms and the
variations which mediate and lead from one to another. The task of
settling a definite theory of development would not have been so
arduous, and the conflicting views of scholars would not have suggested
such directly opposite results, if the early data had not been so
scattered and so ambiguous. The state of the existing material requires
a method of treatment which may to some extent supplement the defects in
the evidence. The later and well-recorded period ought to be made to
supply additional information as to the earlier and imperfectly
described ones. It is from this point of view that we must once more
survey the ground that we have been exploring in the foregoing pages.
The first general feature that meets our eye is the cultivation of
arable on the open-field system: the land tilled is not parcelled up by
enclosures, but lies open through the whole or the greater part of the
year; the plot held and tilled by a single cultivator is not a compact
piece, but is composed of strips strewn about in all parts of the
village fields and intermixed with patches or strips possessed by
fellow villagers. Now, both facts are remarkable. They do not square at
all with the rules and tendencies of private ownership and
individualistic husbandry. The individual proprietor will naturally try
to fence in his plot against strangers, to set up hedges and walls that
would render trespassing over his ground difficult, if not impossible.
And he could not but consider intermixture as a downright nuisance, and
strive by all means in his power to get rid of it. Why should he put up
with the inconvenience of holding a bundle of strips lying far apart
from each other, more or less dependent because of their narrowness on
the dealings of neighbours, who may be untidy and unthrifty? Instead of
having one block of soil to look to and a comparatively short boundary
to maintain, every occupier has a number of scattered pieces to care
for, and neighbours, who not only surround, but actually cut up,
dismember, invade his tenement. The open-field system stands in glaring
contradiction with the present state of private rights in Western
Europe, and no wonder that it has been abolished everywhere, except on
some few tracts of land kept back by geographical conditions from
joining the movement of modern civilisation. And even in mediaeval
history we perceive that the arrangement does not keep its hold on those
occasions when the rights of individuals are strongly felt: it gives way
on the demesne farm and on newly reclaimed land.
At the same time, the absence of perpetual enclosures and the
intermixture of strips are in a general way quite prevalent at the
present time in the East of Europe. What conditions do they correspond
to? Why have nations living in very different climates and on very
different soils adopted the open-field system again and again in spite
of all inconveniences and without having borrowed it from each other?
There is absolutely nothing in the manorial arrangement to occasion this
curious system. It is not the fact that peasant holdings are made
subservient to the wants of the lord's estate, that can explain why
early agriculture is in the main a culture of open fields and involves a
marvellous intermixture of rights. The absence of any logical connexion
between these two things settles the question as to historical
influence. The open-field arrangement is, I repeat it, no lax or
indifferent system, but stringent and highly peculiar. And so it cannot
but proceed from some pressing necessity.
It is evidently communal in its very essence. Every trait that makes it
strange and inconvenient from the point of view of individualistic
interests, renders it highly appropriate to a state of things ruled by
communal conceptions. It is difficult to prevent trespasses upon an open
plot, but the plot must be open, if many people besides the tiller have
rights over it, pasture rights, for instance. It involves great loss of
time and difficulty of supervision to work a property that lies in
thirty separate pieces all over the territory of a village, but such a
disposition is remarkably well adapted for the purpose of assigning to
fellow villagers equal shares in the arable. It is grievous to depend on
your neighbours for the proceeds and results of your own work, but the
tangled web of rights and boundaries becomes simple if one considers it
as the management of land by an agricultural community which has
allotted the places where its members have to work. Rights of common
usage, communal apportionment of shares in the arable, communal
arrangement of ways and times of cultivation--these are the chief
features of open-field husbandry, and all point to one source--the
village community. It is not a manorial arrangement, though it may be
adapted to the manor. If more proof were needed we have only to notice
the fact, that open-field cultivation is in full work in countries where
the manor has not been established, and in times when it has not as yet
been formed. We may take India or tribal Italy as instances.
The system as exhibited in England is linked to a division into holdings
which gives it additional significance. The holding of the English
peasant is distinguished by two characteristic features: it is a unit
which as a rule does not admit of division; it is equal to other units
in the same village. There is no need to point out at length to what
extent these features are repugnant to an individualistic order of
things. They belong to a rural community. But even in a community the
arrangement adopted seems peculiar. We must not disregard some important
contradictions. The holdings are not all equal, but are grouped on a
scale of three, four, five divisions--virgates, bovates, and cotlands
for instance. And the question may be put: why should an artificial
arrangement contrived for the sake of equality start from a flagrant
inequality which looks the more unjust, because instead of those
intermediate quantities which shade off into each other in our modern
society we meet with abrupt transitions? A second difficulty may be
found in the unchangeable nature of the holding. The equal virgates are
in fact an obstacle to a proportionate repartition of the land among the
population, because there is nothing to insure that the differences of
growth and requirements arising between different families will keep
square with the relations of the holdings. In one case the family plot
may become too large, in another too scanty an allowance for the peasant
household working and feeding on that plot. And ultimately, as we have
seen, the indivisible nature of the holding looks to some extent like an
artificial one, and one that is more apparent than real. Not to speak of
that provincial variation, the Kentish system of gavelkind, we notice
that even in the rest of England large units are breaking into
fractions, and that very often the supposed unity is only a thin
covering for material division. Why should it be kept up then?
Such serious contradictions and incongruities lead us forcibly to the
conclusion that we have a state of transition before us, an institution
that is in some degree distorted and warped from its original shape. In
this respect the manorial element comes strongly to the fore. The rough
scale of holdings would be grossly against justice for purely communal
purposes, but it is not only the occupation of land, but also the
incidence of services that is regulated by it. People would not so much
complain of holding five acres instead of thirty, if they had to work
and to pay six times less in the first case. Again, a division of
tenements fixed once and for all in spite of changes in the numbers and
wants of the population, looks anything but convenient. At the same time
the fixed scheme of the division offers a ready basis for computing
rents and assessing labour services. And for the sake of the lord it was
advisable to preserve outward unity even when the system was actually
breaking up: for dealings with the manorial administration virgates
remained undivided, even when they were no longer occupied as integral
units.
Although the holdings are undoubtedly made subservient to the wants of
the manor, it would be going a great deal too far to suppose that they
were formed with the primary object of meeting those wants. If we look
closer into the structure we find that it is based on the relation
between the plough-team and the arable, a relation which is more or less
constant and explains the gradations and the mode of apportionment. The
division of the land is no indefinite or capricious one, because the
land has to be used in certain quantities, and smaller quantities or
fractions would disarrange the natural connexion between the soil and
the forces that make it productive. The society of those days appears as
an agricultural mass consisting not of individual persons or natural
families, but of groups possessed of the implements for tilling the
land. Its unit of reckoning is not the man, but the plough-beast. As the
model plough-team happens to be a very large one, the large unit of the
hide is adopted. Lesser quantities may be formed also, but still they
correspond to aliquot parts of the full team of eight oxen. Thus the
possible gradations are not so many or so gentle as in our own time, but
are in the main the half plough-land, the virgate, and the oxgang. What
else there is can be only regarded as subsidiary to the main
arrangement: the cotters and crofters are not tenants in the fields,
but gardeners, labourers, craftsmen, herdsmen, and the like. If the
country had not been mainly cultivated as ploughland, but had borne
vines or olives or crops that required no cumbersome implements, but
intense and individualistic labour, one may readily believe that the
holdings would have been more compact, and also more irregular.
The principles of coaration give an insight into the nature of these
English village communities. They did not aim at absolute equality; they
subordinated the personal element to the agricultural one, if we may use
that expression. Not so much an apportionment of individual claims was
effected as an apportionment of the land to the forces at work upon it.
This observation helps us to get rid of the anomalies with which we
started: the holding was united because an ox could not be divided; the
plots might be smaller or larger, but everywhere they were connected
with a scheme of which the plough-team was the unit. An increasing
population had to take care of itself, and to try to fit itself into the
existing divisions by family arrangements, marriage, adoption,
reclaiming of new land, employment for hire, by-professions, and
emigration. The manorial factor comes in to make everything artificially
regular and rigid.
If we examine the open-field system and its relation to the holdings of
individual peasants, we see, as it were, the framework of a peasant
community that has swerved from the path of its original development.
The gathering of scattered and intermixed strips into holdings points to
practices of division or allotment: these practices are the very essence
of the whole, and they alone can explain the glaring inconveniencies of
scattered ownership coupled with artificial concentration. But
redivision of the arable is not seen in the documents of our period.
There is no shifting of strips, no changes in the quantities allotted to
each family. Everything goes by heredity and settled rules of family
property, as if the husbandry was not arranged for communal ownership
and re-allotment. I should like to compare the whole to the icebound
surface of a northern sea: it is not smooth, although hard and
immoveable, and the hills and hollows of the uneven plain remind one of
the billows that rolled when it was yet unfrozen.
The treatment of the arable gives the clue to all other sides of the
subject. The rights of common usage of meadow and pasture carry us back
to practices which must have been originally applied to arable also.
When one reads of a meadow being cut up into strips and partitioned for
a year among the members of the community by regular rotation or by lot,
one does not see why only the grass land should be thus treated while
there is no re-allotment of the arable plots. As for the waste, it does
not even admit of set boundaries, and the only possible means of
apportioning its use is to prescribe what and how many heads of cattle
each holding may send out upon it. The close affinity between the
different parts of the village soil is especially illustrated by the
fact, that the open-field arable is treated as common through the
greater part of the year. Such facts are more than survivals, more than
stray relics of a bygone time. The communal element of English mediaeval
husbandry becomes conspicuous in the individualistic elements that grow
out of it.
The question has been asked whether we ought not to regard these
communal arrangements as derived from the exclusive right of ownership,
and the power of coercion vested in the lord of the soil. I think that
many features in the constitution of the thirteenth century manor show
its gradual growth and comparatively recent origin. The so-called
manorial system consists, in truth, in the peculiar connexion between
two agrarian bodies, the settlement of villagers cultivating their own
fields, and the home-estate of the lord tacked on to this settlement and
dependent on the work supplied by it. I take only the agrarian side, of
course, and do not mention the political protection which stands more or
less as an equivalent for the profits received by the lord from the
peasantry. And as for the agrarian arrangement, we ought to keep it
quite distinct from forms which are sometimes confused with it through
loose terminology. A community paying taxes, farmers leasing land for
rent, labourers without independent husbandry of their own, may be all
subjected to some lord, but their subjection is not manorial. Two
elements are necessary to constitute the manorial arrangement, the
peasant village and the home farm worked by its help.
If we turn now to the evidence of the feudal period, we shall see that
the labour-service relation, although very marked and prevalent in most
cases, is by no means the only one that should be taken into account. In
a large number of cases the relation between lord and peasants resolves
itself into money payments, and this is only another way of saying that
the manorial group disaggregates itself. The peasant holding gets free
from the obligation of labouring under the supervision of the bailiff,
and the home estate may be either thrown over or managed by the help of
hired servants and labourers.
But alongside of these facts, testifying to a progress towards modern
times, we find survivals of a more ancient order of things, quite as
incompatible with manorial husbandry. Instead of performing work on the
demesne, the peasantry are sometimes made to collect and furnish produce
for the lord's table and his other wants. They send bread, ale, sheep,
chicken, cheese, etc., sometimes to a neighbouring castle and sometimes
a good way off. When we hear of the _firma unius noctis_, paid to the
king's household by a borough or a village, we have to imagine a
community standing entirely by itself and taxed to a certain tribute,
without any superior land estate necessarily engrafted upon it; a home
farm may or may not be close by, but its management is not dependent on
the customary work of the vill (_consuetudines villae_), and the
connexion between the two is casual. The facts of which I am speaking
are certainly of rare occurrence and dying out, but they are very
interesting from a historical point of view, they throw light on a
condition of things preceding the manorial system, and characterised by
a large over-lordship exacting tribute, and not cultivating land by help
of the peasantry.
We come precisely to the same conclusion by another way. The feudal
landlord is represented in the village by his demesne land, and by the
servants acting as his helpers in administration. Now, the demesne land
is often found intermixed with the strips of the peasantry. This seems
particularly fitted for a time when the peasantry did not collect to
work on a separate home farm, but simply devoted one part of the labour
on their own ground to the use of the lord. What I mean is, that if a
demesne consisted of, say, every fifth acre in the village fields, the
teams of four virgaters composing the plough would traverse this
additional acre after going over four of their own instead of being
called up under the supervision of the bailiff, to do work on an
independent estate. The work performed by the peasants when the demesne
is still in intermixture with the village land, appears as an
intermediate stage between the tribute paid by a practically
self-dependent community, and the double husbandry of a manorial estate
linked to a village.
Another feature of transition is perceivable in the history of the class
of servants or ministers who collect and supervise the dues and services
of the peasants. The feudal arrangement is quite as much characterised
by the existence of these middlemen as modern life by the agreements and
money dealings which have rendered it useless. In the period preceding
the manorial age we see fewer officers, and their interference in the
life of the community is but occasional. The gathering of tribute, the
supervision of a few labour duties in addition, did not require a large
staff of ministers. It was in the interest of the lord to dispense as
much as possible with their costly help, and to throw what obligations
there were to be performed on the community itself. It seems to me that
the feudal age has preserved several traces of institutions belonging to
that period of transition. The older surveys, especially the Kentish
ones, show a very remarkable development of carriage duties which must
have been called forth by the necessity of sending produce to the lord's
central halls or courts, while the home farms were still few and small.
The riding bailiffs appear in ancient documents in a position which is
gradually modified as time goes on. They begin by forming a very
conspicuous class among the tenants, in fact the foremost rank of the
peasantry. These radmen, radulfs, rodknights, riders, are privileged
people, and mostly rank with the free tenants, but they are selected
from among the villagers, and very closely resemble the hundredors,
whose special duties have kept up their status among the general decay.
In later times, in the second half of the thirteenth century and in the
fourteenth, it would be impossible to distinguish such a class of riding
tenants. They exist here and there, but in most cases their place has
been taken by direct dependents of the lord. Besides, as the home-farm
has developed on every manor, their office has lost some of the
importance it had at a time when there was a good deal of business to
transact in the way of communicating between the villages and the few
central courts to which rents had to be carried. And, lastly, I may
remind the reader of the importance attached in some surveys to the
supervision of the best tenants over the rest at the boon works. The
socmen, or free tenants, or holders of full lands, as the case may be,
have to ride out with rods in their hands to inspect the people cutting
the corn or making hay. These customs are mostly to be found in manors
with a particularly archaic constitution. They occur very often on
ancient demesne. And I need hardly say that they point to a still
imperfect development of the ministerial class. The village is already
set to work for the lord, but it manages this work as much as possible
by itself, with hardly any interference from foreign overseers.
One part of the village population is altogether outside the manorial
labour intercourse between village and demesne. The freeholders may
perform some labour-services, but the home-farm could never depend on
them, and when such services are mentioned, they are merely considered
as a supplement to the regular duties of the servile holders. At the
same time, the free tenants are members of the village community,
engrained in it by their participation in all the eventualities of open
field life, by their holdings in the arable, by their use of the
commons. This shows, again, that the manorial element is superimposed on
the communal, and not the foundation of it. I shall not revert to my
positive arguments in favour of the existence of ancient freehold by the
side of tenements that have become freehold by exemption from servile
duties. But I may be allowed to point out in this place, that negatively
the appearance of free elements among the peasantry presents a most
powerful check to the theory of a servile origin of the community: it
throws the burden of proof on those who contend for such an origin as
against the theory of a free village feudalized in process of time.
In a sense the partizans of the servile community are in the same
awkward position in respect to the manorial court. Its body of suitors
may have consisted to a great extent of serfs, but surely it must have
contained a powerful free admixture also, because out of serfdom could
hardly have arisen all the privileges and rights which make it a
constitutional establishment by the side of the lord. The suitors are
the judges in litigation, the conveyancing practice proceeds from the
principle of communal testimony, and in matters of husbandry, custom and
self-government prevail against any capricious change or unprecedented
exaction. And it has to be noticed that the will and influence of the
lord is much more distinct and overbearing in the documents of the later
thirteenth and of the fourteenth century, than in the earlier records;
one more hint, that the feudal conception of society took some time to
push back older notions, which implied a greater liberty of the folk in
regard to their rulers.
Whichever way we may look, one and the same observation is forced upon
us: the communal organisation of the peasantry is more ancient and more
deeply laid than the manorial order. Even the feudal period that has
formed the immediate subject of our study shows everywhere traces of a
peasant class living and working in economically self-dependent
communities under the loose authority of a lord, whose claims may
proceed from political sources and affect the semblance of ownership,
but do not give rise to the manorial connexion between estate and
village.
APPENDIX.
I.
See p. 52, n. 2.
[Y.B. Pasch. 1 Edw. II, pl. 4. f. 4.]
[Trans.]
Symon de Paris porta breve de transgression vers _H._ bailliffe sire
Robert Tonny et plusours autres, et se pleint, qe _W._ et _H._ certein
jour luy pristrent et emprisonerent etc. a tort encountre la pees etc.
_Pass_ respond pur toutz, forspris le bailliffe, qe riens nount fait
encountre la pees, et pour le bailliff yl avowea le restreinement par la
resoun qe lavantdit _S._ si est villeine lavandit _R._ qi bailliffe yl
est, et fuist trove a _N._ en soun mes, le quel vint a lui tendist
office de Provoist et il la refusa et ne se voilleit justicier etc.
_Tond._ rehercea le avowery, et dit qe a cele avowery ne doit il estre
resceve pur ceo qe _S._ est Fraunc Citizene de Londre, et ad este touz
ceux diz anz, et ad este Vicounte le Roy en mesme la Citee, et rend
accounts al Eschequer, et ceo voloms averrer par Record, et uncore huy
ceo jour est Alderman et de la Ville de Londre, et demande jugement,
sils puissent villenage en sa persone allegger. _Herle._ A ceo qil dient
qil est citezen de Londre nous navoms qe faire, mes nous vous dioms, qil
est villein _R._ de Eve et de Treve, et les Auncestres Ael et Besayel et
toux ces Auncestres ses _terres tennantz deinz le manoire de N._ et ces
Auncestres seisitz des villeins services des Auncestres _S._ come affaire
Rechat de Char et de Sank et de fille marier, et de euz tailler haut et
bas, _etc._, et uncore est seisi de ces freres de mesme le piere et de
mesme la mere et demande Jugement si sour luy, come sour soun villein en
soun mese trove, ne puisse avowere faire. _Tond._ Fraunc homme et de
fraunc estat et eux nient seisi de luy, come de lour villein prest etc.
_Ber._ Jeo ai oi dire qe un homme fuist prist en la bordel, et fuist
prist et pendu, et sil eust demorre a lostiel, il neust en nul mal
_etc._ auxient de ceste parte, sil eust este fraunc Citezen pur qe neust
il demorre en la Citee? _Ad alium diem_; _Tond._ se tient qil ne fuist
seisi de lui come de soun villein ne de ses villeins services etc.
_Pass._ la ou il dit qe nous ne sumes pas seisis de lui come de nostre
villein, il nasquit en nostre villeinage, ou commence nostre seisine, et
nous lui trova mese en soun mes, et la nostre seisine continue,
Jugement. _Ber._ Vous pledietz sour la seisine, et il pleident sour le
droit issint naverrez james bon issue de plee. _Herle._ Seisi en la
fourme qe nous avoms dit. _Ber._ La Court ne restreinera tiel travers
sanz ceo qe vous dietz, que vous estez seisitz de lui _come de vostre
villein et de ses villeinz services_, et sic fecit. _Et alii e contra._
II.
See p. 54, n. 1.
[Y.B. Trin. 29 Edw. III, f. 41. I do not give a translation of this
document because it has been explained with some detail in my text.]
[Sur l'estatut de labourer.]
[Op. Curiae.]
[Op. Curiae.]
Le servant suit par attorney, et le Master in propre persone. Que dit qe
le servant fuit soun villein regardant al Manoire de _C._ et dit qil
avoit mestre de ses services et de luy, pur qe nous luy prisoms come
nostre viliein, come list a nous. Jugement si _etc._ tort in nostre
party par tiel reteignement puit assigner. _Et nota_, qil fist
protestacion, qil ne conust pas qil fuit in le service le plaintiffe
etc. _Et nota_, qe le servant dit auxi, qil fuit le villein le Master qi
plede, et dit qil fuit distreint, et auxi les amis pur luy tanqe qil
convensist par cohercion venir a ses Seigneours. _Burt._ Le servant est
par attorney, qe ne puit par soun ple faire sans Master villein. Purqe
ceo ple ne gist in soun bouche. _Et non allocatur_ par _Wilb._ qi dit qe
le ple nest pas al breve: car mesqe il fuit icy in propre persone, et
voillet conustre qil fuit villein ce nabat pas vostre breve (le quel qil
fuit frank ou villein) si vous poies maintenir qil fuit in vostre
service, si ce ne fuit par autiel mattier (come il ad plede) ou autre
semblable. Et puis le servant weyva, et dit qil ne fist pas covenant
etc. _Et alii e contra._ _Et nota_, qe l'opinion fuit, qe si villein
fuit chace et distreint de venir a son Seignour propre, qe ce luy
excusera del' penance del l'estatut. _Sed Burt. negavit_, eo qe ce vient
de sa folie qil voilleit faire covenant dautre servir, qant il fuit
appris qil fuit autry villein. _Et ideo quere._ Qant al' plea le Master
_Burt._ challange ceo qil navoit pas alleger qil fuit seisi de luy come
de soun villein. _Et non allocator_ par _Wilb._ Qui dit, sil soit soun
villein, soun plee est assez fort: car seisi et nient seisi ne fera pas
issue. _Et sic nota._ Puis _Burt._ dit que l'on allege est quil est soun
villein regardant a soun manoire de _C._ nous dioms qe mesme le manoire
fuit in le seisin un _A._ que infeffa le defendant de mesme le manoire;
et dioms qe tout le temps que il fuit allant et walkant a large a sa
frank volunte come frankhome, sans ce qil fuit unque seisi de luy in son
temps, et cety qe ad l'estat _A._ ne fuit unques seisi de luy, tanques
ore qil de soun tort demesne luy pris hors de nostre service. Purque
nous nentendons pas que par tiel cause il nous puit ouster de nostre
accord. _Finch._ Et nous Jugement, depuis qil ne dedit pas qil nest
nostre villein de nostre manoire de _C._ et le quel nous fuit seisis de
luy devant, ou non, ou nostre feffor seisi, _etc._ ou ce ne puit my
estre a purpose: car il alast alarge, purtant ne fuit il enfranchy.
Purque _etc._ _Th._ Si vostre feffor ne fuit unques seisi de luy, coment
qil vous dona le manoire, jeo di que ce de que il navoit pas le
possession ne puit pas vestir in vous. Purque _etc._ _Jer._ Villeins
regardants al' manoires sont de droit al' Seignour de prendre les a sa
volunte, et sil face don le manoire a un autre, a quel heur que l'autre
les happa, il est asses bon. _Th._ Sir, uncre mesque il soit issint
entre luy et le grantor ou le villein, nous qe sums estrange ne serrons
pas ly purtant: car si home qi soit estrange veigne in pais, et demurges
par _xx_ ou _xxx_ ans, et nul home met debat sur luy, ne luy claime come
seruant, il list a moy de prendre soun service, et de luy recevoir in
mon service pur le terme solonque nostre covenaunt: et il nest pas
reason qe jeo soy perdant, depuis qe in moy default ne puit etre ajuge,
_causa ut supra_. _Gr._ Per mesme le reason qe vous luy purrets retenir
tanque al' fine de terme, si poit un autre: _et sic de singulis, et sic
in infinitum_: issint le Seignour ouste de soun villein a toujours, et
ce ne seroit pas reason. Puis _Th._ n'osa pas demurrer; mes dit qil ne
fuit pas soun villein de soun manoire de _C._ Prest etc. _Fiff._ Ceo
n'est pas respons: _car coment qil nest pas soun villein del' manoire,
etc. sil fuit soun villein in gros, asses suffist_. _Et non allocatur_
pur ce quel avoit traverse soun respons in le manere come ce fuit
livere, etc.
Common Pleas Roll (Record Office).
[Trin. 29 E. III, r. 203, v. Oxon.]
Thomas Barentyn et Radulfus Crips Shephird attachiati fuerunt ad
respondendum tam domino Regi quam Priori hospitalis Sancti Iohannis
Ierusalem in Anglia quare, cum per ipsum dominum Regem et consilium suum
pro communi utilitate regni Regis Anglie ordinatum sit, quod si aliquis
seruiens in seruicio alicuius retentus ante finem termini concordati a
dicto seruicio sine causa racionabili vel licencia recesserit, penam
imprisonamenti subeat et nullus sub eadem pena talem in seruicio suo
recipere vel retinere presumat, et predictus Thomas predictum Radulfum
nuper seruientem predicti Prioris in seruicio suo apud Werpesgrave
retentum qui ab eodem seruicio ante finem termini inter eos concordati
sine causa racionabili et licencia predicti Prioris recessit, in
seruicium predicti Thome quamquam memoratus Thomas de prefato Radulfo
eidem Priori restituendo requisitus fuerit admisit et retinuit in Regis
contemptum et predicti Prioris grave dampnum ac contra ordinacionem
predictam. Et unde predictus Prior per Ricardum de Fifhide attornatum
suum queritur quod cum per ipsum Regem et consilium suum etc. ordinatum
sit quod si aliquis serviens in servicium alicuius retentus ante finem
etc. a dicto seruicio sine causa etc. recesserit penam imprisonamenti
subeat et nullus sub eadem pena talem in seruicio suo recipere vel
retinere presumat, predictus Thomas predictum Radulfum nuper seruientem
predicti Prioris in seruicio suo apud Werpesgrove retentum scilicet die
Lune proxima post festum Sancti Laurentii anno regni domini Regis nunc
Anglie vicesimo octavo ad deseruiendum ei in officio pastoris etc.
scilicet die Lune in septimana Pentecostes a festo Sancti Michaelis
Archangeli tunc proximo sequenti per unum annum proximum sequentem qui
ab eodem seruicio ante finem termini ... recessit, in seruicium predicti
Thome quamquam idem Thomas de prefato Radulfo eidem Priori restituendo
requisitus fuerit admisit et retinuit in Regis contemptum et predicti
Prioris grave dampnum ac contra ordinacionem etc. et predictus Radulfus
a seruicio predicti Prioris ante finem sine causa etc. videlicet
predicto die Lune in septimana Pentecostes recessit in Regis contemptum
ad predicti Prioris grave dampnum ac contra ordinacionem etc. unde
dicit quod deteriorates est et dampnum habet ad valenciam viginti
librorum. Et inde producit sectam.
Et predicti Thomas et Radulfus per Stephanum Mebourum attornatum suum
veniunt. Et defendunt vim et iniuriam quando etc. et quicquid etc. Et
protestantur quod ipsi non cognoscunt quod predictus Radulfus fuit
seruiens predicti Prioris nec retentus cum eodem Priore prout Prior
superius versus eos narravit et predictus Thomas dicit quod predictus
Radulfus est _villanus suus ut de manerio suo de Chalgrave_ per quod
ipse seisivit eundem Radulfum tanquam villanum suum prout ei bene
licuit. Et hoc paratus est verificare unde petit iudicium si predictus
Prior injuriam in persona sua assignare possit. Et predictus Radulfus
dicit quod ipse est villanus predicti Thome ut de manerio predicto et
quia idem Radulfus extra dominium predicti Thome morabatur parentes
ipsius Radulfi districti fuerunt ad venire faciendum predictum Radulfum
ad predictum Thomam dominum suum et ad eorum sectam et excitacionem idem
Radulfus venit ad predictum Thomam absque hoc quod ipse retentus fuit
cum predicto Priore ad deseruiendum ei per tempus predictum prout idem
Prior superius versus eum narravit. Et de hoc ponit se super patriam. Et
predictus Prior similiter. Et idem Prior quo ad placitum predicti Thome
_dicit quod predictus Radulfus non est villanus ipsius Thome ut de
manerio suo predicto_ prout idem Thomas superius allegat. Et hoc petit
quod inquiratur per patriam. Et predictus Thomas similiter. Preceptum
etc.
III.
See p. 66, n. 2, and p. 78, n. 2.
The so-called Mirror of Justice is still in many respects an unsolved
riddle, and a very interesting one, as it seems to me. The French
edition of 1642 from which quotations are so frequently made presents a
text perverted to such an extent, that the gentleman from Gray's Inn to
whom we owe the English translation of 1648 took it upon himself to deal
with his original very freely, and in fact composed a version of his own
which turned out even less trustworthy than the French. Ancient MSS. of
the work are very scarce indeed; the fourteenth century MS. at Corpus
College, Cambridge, is the only one known to me; although there are also
some transcripts of the seventeenth century. This means that the work
had no circulation in its time. It is very unlike Bracton, or Britton in
this respect, and indeed in every other. Instead of giving a more or
less learned or practical exposition of the principles of Common Law it
appears as a commentary written by a partisan, acrimonious in form,
almost revolutionary in character, full of stray bits of information,
but fanciful in its way of selecting and displaying this information.
'Wahrheit und Dichtung' would have been a proper title for this
production, and no wonder that it has excited suspicion. It has
commanded the attention of the present generation of scholars
notwithstanding the odd way in which the author, Andrew Horne, or
whoever he may be, cites as authority fictitious decisions given by King
Alfred and by a number of legal worthies of Saxon times who never gave
judgment save in his own fruitful imagination. This may be accounted for
by peculiar medieval notions as to the manner in which legal discussion
may be most efficiently conducted, but altogether the Mirror, as it
stands, appears quite unique, quite unlike any other legal book of the
feudal period. It must be examined carefully by itself before the
information supplied by it can be produced as evidence on any point of
English medieval history. Such an examination should lead to interesting
results, but I must reserve it for another occasion. What I have said
now may be taken simply as a reason for the omission in my text of those
passages of the Mirror which bear on the question of villainage. I may
be allowed to discuss these passages in the present Appendix without
anticipating a general judgment on the character of the book and on its
value.
The author of the Mirror shows in many places, that he is hostile not
only to monarchical pretensions, but also to the encroachments of the
aristocracy. He is a champion of the lower orders and gladly endorses
every rule set up by the Courts 'in favour of liberty.' In this light he
considers the action 'de nativitate' as conferring an advantage upon the
defendant, the person claimed as a villain, but considered as free until
the contrary has been proved[854]. Another boon consists in the fact,
that the trial must be reserved for the decision of the Royal Courts and
cannot be entertained in the County[855]. So far the Mirror falls in
with the usual exposition of our Authorities--it takes notice of two
facts which are generally recognised as important features in trying a
question of status. But the Mirror does not stop there, but further
formulates an assertion which cannot be considered as generally accepted
in practice, though it may have emerged now and then in pleadings and
even in decisions.
It is well known, that the main argument in a trial of villainage turned
on the question of kinship. As Britton (pp. 205, 206, ed. Nichols)
states the matter, we are led to suppose that the plaintiff had to
produce the villain kinsmen of the person claimed, and the defendant
could except against them. Glanville (v. 4) says, that both parties had
the right to produce the kindred and in case of doubt or collision a
jury had to decide. If the fact of relationship were established on both
sides, it was necessary to see on which side the nearer relatives stood.
Legal practice, so far as we can judge from the extant plea rolls,
followed Glanville, although questions arising from these suits were
much more varied and complicated than his statement implied. (See, for
instance, Bracton's Note Book, 1041, 1167.) But in the Mirror we find
the distinct assertion, that if the defendant in a case of 'nativity'
succeeded in proving a free stem in any generation of his ascendants,
this was sufficient to prove him free[856]. This connects itself with
the view, that there can be no prescription against free blood, a view
which, as we have seen in the text, was in opposition to the usual
conception that people may fall into servitude in the course of several
generations of debasement. The notion embodied in the Mirror was
lingering, as it were, in the background.
In accordance with this liberal treatment of procedure, we find our
author all in favour of liberty when treating of the ways by which
bondage may be dissolved. He gives a very detailed enumeration of all
such modes of enfranchisement, and at least one of his points appears
unusual in English law. I mean his doctrine that a serf ejected from his
holding by the lord becomes free, if no means of existence are afforded
to him[857].
The motive adduced is worthy of notice by itself. 'Servus dicitur a
servando,' a serf is a man under guardianship, like a woman in this
respect[858], and so, if the guardian forgets his duty of taking care of
his subject, he forfeits his rights. The Roman derivation 'a servando'
is often met elsewhere, but instead of being applied to the bondman as a
captive who has been kept alive instead of being slain, it is here made
the starting point of a new conception and one very favourable to the
bondman. It is not the only indication that the author of the Mirror had
been speculating about the origin of servitude. By the law of nature all
men are free, of course, but yet, says he, there exists by human law a
class of men to whom nothing belongs, and who are considered as the
property of other people: an anomaly which he guesses may possibly come
from the time when Noah pronounced his malediction against Canaan, the
son of Cham, or else from the defeat of Goliath by David[859].
It is curious too, and at first sight rather inconsistent, that our
author sometimes speaks against those very serfs towards whom he seems,
as a rule, so favourably disposed. He dwells on their disability, marks
as an abuse that they are admitted to act in the courts without the help
of their lords, although nothing can be owned by them[860], and, what is
more, he insists on the necessity of their being excluded from the
system of frank-pledge, which ought to be restricted entirely to free
men[861]. All this seems rather strange at first, and certainly not in
favour of liberty. It turns out, however, that these very qualifications
are prompted by the same liberal spirit which we noticed from the first;
they are suggested by a most characteristic attempt to draw a definite
line between the serf and the villain.
The villain is no serf, in any sense of the word. He is a free man[862],
his tenure is a free tenure[863]. He is enfeoffed of his land, with the
obligation to till it, as the knight is enfeoffed of his fee in return
for military service; the burgess enfeoffed of his freehold in the
borough for a rent[864]. The right of ownership on the part of the
villain is clearly recognised in the Great Charter, which prescribes the
mode and extent of amercing villains, and thereby supposes their
independent right of property, while the serf has nothing of his own,
and could not be amerced in his own[865]. The author undoubtedly hits
here on a point where the usual feudal theory had been discountenanced
by statute: it was certainly difficult to maintain at the same time that
the villain, as serf, had nothing but what had been precariously
entrusted to him by the lord, and at the same time that he must suffer
for misdeeds in the character of an owner. Strained in one sense the
article of the Charter could be made to mean that, at the time of the
Great Charter, there was no such thing as the civil disability of
servitude in England. Strained in another sense suggested by the Mirror,
it would lead to a standing distinction between villains, as owners, and
serfs, as people devoid of civil rights. We know that legal practice
preferred a compromise which was anything but consistent in point of
doctrine, but, as I have said in my text, the notion of the civil right
of the villain, and especially in his so-called wainage, seems to have
been deep-rooted enough to counterbalance in some respects the current
feudal doctrine.
It would have been difficult for the author of the Mirror to maintain
that practice was in accordance with his theory; and he falls out of his
part now and then, as, for instance, when he speaks of the
enfranchisement of the serf from whom the lord had received homage in
addition to fealty--this is a case clearly applying to villains as well
as to those whom he calls serfs, and it is not the only time that he
forgets the distinction[866]. But when his attention is not distracted
by details he takes his ground on the assumption that the original
rights of the villains were gradually falling into disuse through the
encroachments of the stronger people. We even find in the Mirror that
the villains ought to have the assise of novel disseisin as a remedy in
case of dispossession. If they were oppressively made to render other
than the accustomed services they had to resort to the writ, 'ne injuste
vexes,' and it is a sign of bad times that they are getting deprived of
it. Edward the Confessor took good care that the legal rights of the
villains should not be curtailed[867]. It is needless again to point
out that this view of villainage is well in keeping with the fundamental
notion which I tried to bring out in my text, the notion, namely, that
the law of villainage contained heterogeneous elements, and had been
derived partly from the status of free ceorls.
IV.
See p. 87, n. 1.
[Coram Rege 10 Henry III, N. 26. m. 4. d.]
Assisa venit recognitura si Iohannes Cheltewynd iniuste etc. disseisiuit
Willelmum filium Roberti de libero tenemento suo in Cheltewynd post
ultimum etc. Et Iohannes venit et dicit quod non disseisiuit eundem
Willelmum de aliquo libero tenemento quia villanus suus est et nullum
habet liberum tenementum et quod Robertus pater suus fuit villanus. Et
Willelmus dicit quod tenementum illud liberum est et quod Robertus pater
suus libere tenuit de Ada patre Iohannis de Chetewod et per cartam quam
profert in haec verba quod Adam de Chetwud concessit Roberto filio
Wourami patri Willelmi et heredibus suis dimidiam virgatam terre cum
pertinenciis in Chetwud in feodum et hereditatem tenendam de eodem
Roberto et heredibus suis libere quiete cum omnibus consuetudinibus et
libertatibus quas ceteri franci homines habent pro 26 denariis per annum
reddendo pro omni servicio et pro omnibus rebus ad eum et heredes suos
pertinentibus.
Et Iohannes bene cognoscit cartam illam et dicit quod idem Robertus fuit
villanus patris sui et per pecuniam domini sui redemptus fuit a
seruitute et quod antequam esset liberatus a servitute fuit idem
Willelmus nativus, et petit judicium si per cartam quam pater suus ei
fecerat debeat esse liber tempore Iohannis cum redemptus esset per
pecuniam patris Iohannis et Robertus nichil proprium habuit cum esset
villanus. Et dicit quod idem Willelmus non fuit nisi custos patris sui
de eadem terra dum pater suus fuit alibi manens.
Post uenit Willelmus et retraxit se et ideo in misericordia Pauper est.
Et Iohannes dat ei III marcas et Willelmus remanet etc. Ita quod idem
Willelmus ibit quocumque uoluerit. Et Iohannes quietum clamauit
Willelmum de omni seruitute.
V.
See p. 90, n. 4.
[De Banco Roll, Michaelmas, 15 Edw. II, m. 271.]
Abbas de Sancto Edmundo attachiatus fuit ad respondendum Rogero filio
Willelmi Henri homini praedicti Abbatis de manerio de Mildenhale quod
est de antiquo dominico corone Anglie etc. de placito quare exigit ab eo
alias consuetudines et alia servicia quam facere debent et antecessores
sui tenentes de eodem manerio facere consueverunt temporibus quibus
manerium illud fuit in manibus progenitorum Regis quondam Regum Anglie
contra prohibicionem Regis etc. Et unde idem Rogerus per Petrum de
Elyngham attornatum suum dicit quod ipse et antecessores sui et quilibet
tenens unum messuagium et quindecim acras terre cum pertinenciis in
eodem Manerio sicut idem Rogerus tenet tempore quo Manerium illud fuit
in manibus Sancti Edwardi Regis quondam Regis Anglie progenitoris Domini
Regis nunc tenuit tenementa sua per fidelitatem et servicium inveniendi
unum hominem ad tenendum vel fugandum carucam Domini singulis diebus
anni quando caruce arare consueverunt tantum pro omni servicio et habere
consuevit carucam Domini qualibet altera septimana singulis annis per
diem Sabbati ad terram suam propriam arandam vel carucam illam aliis
locandam et similiter sextam partem vesture unius acre ordei et
medietatem vesture unius rode frumenti de melioribus tempore messis et
prandium suum ad nonam singulis annis per sex dies in anno in aula
Domini sumptibus ejusdem Domini scilicet in diebus Sancti Michaelis,
Omnium Sanctorum, Natalis Domini, Purificacionis Beate Marie, Pasche et
Pentecostes et oblacionem suam singulis annis per quatuor dies in anno
scilicet in diebus Natalis Domini, Purificacionis Beate Marie, Pasche et
Assumpcionis Beate Marie Virginis scilicet quolibet die unum denarium et
per hujusmodi certas consuetudines et servicia ipse et omnes
antecessores sui tenementa quae ipse modo tenet tenuerunt a tempore quo
non exstat memoria usque ad tempus istius Abbatis quod idem Abbas
praeter praedicta servicia exigit ab eo singulis vicibus quibus aliquis
Abbas est de novo creatus finem ei praestandum pro capa sua ad
voluntatem suam et pro filiis et filiabus suis maritandis et pro terris
suis dimmittendis et pro ingressu habendo in hereditatem suam post
obitum antecessoris sui finem similiter ad voluntatem suam ac idem
Rogerus die Jovis proxima ante festum Apostolorum Simonis et Jude anno
regni Domini Regis nunc quartodecimo apud Sanctum Edmundum in praesencia
Thome de Wridervill Roberti Tillote Philippi de Wangeford Roberti de
Lyvermere et aliorum liberasset praedicto Abbati breve Regis de
prohibicione et ei inhibuisset ex parte Domini Regis ne idem Abbas
exigeret ab eo alias consuetudines et alia servicia quam ipse et
antecessores sui tenentes de eodem Manerio facere consueverunt
temporibus quibus Manerium illud fuit in manibus progenitorum Regis
quondam Regum Anglie. Idem Abbas spreta regia prohibicione praedicta
nihilominus postmodum exigit ab eo praedicta superonerosas consuetudines
et ad ea sibi facienda per graves et intollerabiles districciones
distringit quominus terram suam excolere potest unde dicit quod
deterioratus est et dampnum habet ad valenciam centum librarum. Et inde
producit sectam etc.
Et Abbas per Willelmum de Bakeham attornatum suum venit. Et dicit quod
non debet praedicto Rogero ad hoc breve nec ad aliquod aliud breve
respondere. Quia dicit quod idem Rogerus est villanus ipsius Abbatis et
villanus ecclesie sue Sancti Edmundi. Et quod ipse seisitus est de ipso
tanquam de villano suo unde petit judicium etc. Et Rogerus dicit quod
ipse est homo ipsius Abbatis de Manerio de Mildenhale quod est de
antiquo dominico corone Anglie. Et quod Mildenhale sit de antiquo
dominico Corone Anglie paratus est verificare per librum Domesday. Et
super hoc inspecto libro praedicto comperta sunt in eodem verba
subscripta.--Suffolk--Inter terras Stigandi quas Willelmus Denvers
servat in manu Regis.--Lacforde Hundred. Mildenehalla dedit Rex Edwardus
Sancto Edmundo et post tenuit Stigandus sub Sancto Edmundo in vita Regis
Edwardi pro manerio xij carucate terre tunc et post xxx uillani modo
xxxiij. Tunc viij. Bordarii post et modo xv. semper xvj. servi semper vj
caruce in dominio et viij caruce hominum et xx acre prati ecclesia xl
acrarum et j molendinum et iij piscaciones et dimidiam xxxj eque
silvatice xxxvij averia et lx porci et Mille oves et viij socemanni xxx
acrarum semper dimidia caruca. Huic iacet i bervita--Et quia ex verbis
praedictis videtur Curie quod Mildenhale est de antiquo dominico corone
etc. dictum est praedicto Abbati quod respondeat quod sibi viderit
expedire etc.
Et Abbas dicit sicut prius quod praedictus Rogerus est villanus suus et
ecclesie sue praedicte et quod ipse seisitus est de ipso ut de villano
suo et quod ipse et omnes Abbates de Sancto Edmundo praedecessores
ipsius Abbatis ex tempore quo non extat memoria seisiti fuerunt de ipso
Rogero et antecessoribus suis ut de villanis suis talliando ipsos alto
et basso pro voluntate sua et faciendo de ipsis praepositos et messores
suos et capiendo ab eis merchetum pro filiis et filiabus suis maritandis
et finem pro terris suis dimittendis et pro ingressu habendo in terris
et tenementis post mortem antecessorum suorum ad voluntatem ipsorum
Abbatum. Et hoc paratus est verificare etc.
Et Rogerus dicit sicut prius quod ipse est homo de antiquo dominico
corone Anglie de praedicto Manerio de Mildenhale et quod ipse et omnes
antecessores sui a tempore quo non exstat memoria tenuerunt tenementa
sua praedicta de praedecessoribus praedicti Abbatis et de progenitoribus
Domini Regis Regum Anglie quondam Dominis ejusdem Manerii per praedicta
certa servicia et consuetudines in narracione sua superius contenta
absque hoc quod praedecessores praedicti Abbatis fuissent seisiti de
ipso Rogero aut antecessoribus suis ut de villanis suis talliando ipsos
alto et basso vel faciendo de ipsis praepositos et messores aut capiendo
de ipsis incertas consuetudines et servicia sicut praedictus Abbas
dicit. Et hoc petit quod inquiratur per patriam. Et praedictus Abbas
similiter Ideo praeceptum est Vicecomiti quod venire faciat hic a die
Pasche in tres septimanas xij etc. per quos etc. et qui nec etc. ad
recognicionem etc. Quia tam etc.
See p. 97, n. 2.
The Mildenhall trial just quoted may serve as an instance of litigation
between lord and tenant of a manor in ancient demesne, when it took
place before the Royal Courts. The Rolls of King's Ripton, Hunts, now
published by Prof. F.W. Maitland, for the Selden Society, give an
insight into the working of the Manorial Court itself when it had to
decide between lord and tenant in a question of right (pp. 118 _et
sqq._). Jane the daughter of William of Alconbury claims eight acres of
land against the Abbot of Ramsey, lord of the manor. He does not choose
to answer at once and takes advantage of all the procrastinations usual
in such matters. Three times he gets summoned and does not appear; the
Court proceeds to distrain him and after three distraints he essoins
himself three times before making up his mind to answer by attorney and
to ask a view of the land. Pleadings follow in the usual course, and
ultimately a sworn inquest has to decide on the question whether the
plaintiff was of full age at the time of a transaction through which the
land claimed came into the hands of the Abbot. The point is, that the
lord of the Manor is placed entirely on the same footing in regard to
the action of his tenant as any other suitor.
In 1296 an action of dower occurs between a certain Maud Grayling and a
number of persons holding land within the manor. It is opened by a _writ
of right_ which is bound up with the roll, but has not been printed by
Mr. Maitland as it does not contain anything of special interest. The
beginning of this writ is typical--it does not mention the abbot, but
only the bailiffs of the abbot: [Edwardus Dei gratia Rex Angliae] Dux
Aquitaniae, Ballivis Abbatis de Rameseye de Riptone Regis Salutem.
Precipimus vobis quod sine dilacione et secundum con[suetudinem manerii
de Riptone Regis ple]num rectum teneatis Matildi que fuit uxor Hugonis
Grayling de medietate sex messuagiorum sexaginta et qua[tuor acrarum] et
unius rode [terre dimidia acra prati] cum pertinenciis in Riptone Regis,
unde etc. (Court of Augmentation, Portf. XXIII, N. 94, r. 9). On pp.
100-104 Mr. Maitland gives the translation of two most valuable records
of _Monstraverunt_ in the Court of King's Bench between the men of
King's Ripton and the Abbot. The suit is very similar to that of the men
of Mildenhall; and indeed all these ancient demesne trials turn on the
same points.
VI.
See p. 91, n. 3.
The Stoneleigh Register, in the possession of Lord Leigh, is certainly
one of the most interesting surveys of a medieval manor extant, and
gives a better insight into the condition of ancient demesne than any
other document I know of. Its publication would be particularly
desirable in the interests of social history. This compilation is indeed
a late one, but it has been made with great care and evident accuracy
from the original records which go back even to Henry II's time. One
part is especially important, because it gives selections from the Court
Rolls of the Manorial Court. An extract from the compiler's Introduction
will show the nature and grouping of his material.
F. 2, a: In quorum primo libro agitur de generacione nobilium regum
Anglie incipiendo modicum ante conquestum usque ad presens sumarie
concepta. Et de possessionibus et graciis per eos nobis factis et
collatis, tam in monasterio de Rademora quam in monasterio de Stonleya.
Ac eciam de diversis memorandis consuetudinibus, placitis, feuffamentis,
diuisionibus tenementorum in villa et hamelettis de Stonle. Et de bundis
et peranbulacionibus dicti manerii de Stonle. Ac subsequenter de actis
abbatum de Stonle a tempore fundacionis quod infra intitulabitur _usque
ad presens videlicet usque ad feriam quartam in festo Sancti Gregorii
pape anno domini millesimo trecentesimo nonagesimo secundo_, anno vero
domini Regis Anglie Ricardi secundi post conquestum sexto decimo. In
secundo libro continentur memoranda de villis de Hartone, Cobsitone....
Erdyngtone.... In tertio libro continentur diversa memoranda tam nos
quam alios tangencia et alia informatiua abbatum iuniorum consilia
racionabilia secundum antiquas consuetudines, extentas, computaciones
per quas poterit a nociuis abstineri, videlicet in diuisionibus
possessionum et aliis faciendis pro bono et conseruacione juris
monasterii. In quarto libro summarie scribuntur copie diuersorum
priuilegiorum et diuersarum composicionum decimarum et placitorum. Et de
diuersis casibus et defensionibus super eisdem. Item in casu quo facta
esset commissio alicui abbati a curia Romana et a generali capitulo.
The following passage is characteristic of the conception of ancient
demesne: (4, a) Prefatus dominus Edwardus rex habuit in dominico suo
iure hereditario manerium de Stonle cum membris, videlicet Kenilworth,
Bakyngtone, Ruytone et Stratone, una cum aliis terris et maneriis. Que
quidem maneria existencia in possessione et manu domini Regis Edwardi
per universum regnum vocantur antiquum dominicum corone Regis Anglie
prout in libro de Domusday continetur.
See p. 116, n. 4.
F. 21, a: Henricus Dei gracia Rex ... venire facias coram nobis
Alexandrum de Canle ... et Hugonem le Seynsterer, ita quod sint apud
Kenilworth in octabis Sti Edwardi ostensuri quo warranto subtraxerunt
prefatis Abbati et Conventui quasdam consuetudines, libertates et jura
ad Sokam de Stonle spectantes ... anno regis nostri quinquagesimo ... Et
unde predictus Abbas pro se et Rogero Loueday _qui sequitur pro Rege_
dicunt quod, cum manerium de Stonle fuit antiquum dominicum domini Regis
... quilibet tenens ipsius manerii unam virgatam terre _consuevit
reddere ipsi domino Regi per annum_ 30 denarios et facere sectam ad
curiam suam de Stonle de tribus septimanis in tres ... predictus
Alexander qui unam virgatam terre de antiquo et tres rodas de assarto
tenet, de quibus reddit Roberto de Canle predictum redditum et 18
denarios pro predicta secta subtrahenda et pro predicto assarto denarium
et obolum ... Predictus Robertus de Canle tenet duas virgatas terre pro
5 solidis et omnes tenentes predicti secundum tenuras suas detinent
predicto Abbati predictas sectas pro quibus dictus Robertus de Canle
capit a predictis tenentibus secundum tenuras [_folio_ 22] suas,
scilicet pro una uirgata 30 denarios et de maiori tenura plus et de
minori minus. Et de totis assartis capit totum seruicium....
Et predictus Alexander Hugo et alii veniunt et defendunt vim et injuriam
etc.... et bene cognoscunt, quod antecessores eorum tenuerunt tenementa
sua in dicto hameletto de progenitoribus domini Regis per seruicium 30
denariorum pro virgata terre ... et bene cognoscunt quod ipsi reddunt
predicto Roberto de Canle redditus suos, sed qualiter ipse uel
antecessores sui huiusmodi seruicia perquisierint, ignorant.... Jurati
... per sacramentum suum dicunt, quod tempore Henrici Regis avi domini
Regis nunc tenuerunt omnes.... faciendo inde domino Regi seruicia et
consuetudines ad tenementa sua pertinentes. Quo tempore quidam
Ketelburnus antecessor Roberti predicti et vicinus ipsorum tenencium qui
tenuit de Rege sicut alii vicini sui, et quia predicti tenentes domini
Regis fuerunt exiles in bonis et predictus Ketelburnus fuit maior et
discrecior eis, locuti fuerunt cum ipso quod ipse colligeret redditum
eorum et illum deferret pro eis ad curiam regis, tanquam per manum
ipsorum. Et post mortem ipsius Ketelburni quidam heres ipsius Ketelburni
accreuit et duxit in uxorem quandam sororem cuiusdam constabularii de
castro de Kenilworth. Qui quidam heres ex permissione dicti
constabularii atraxit ad se omnia servicia vicinorum suorum et reddidit
antecessoribus domini Regis pro qualibet virgata dicte ville 30 denarios
et fecit sectam pro eis ad curiam domini Regis. Et cepit pro secta
predicta certum redditum et pro assartis predictis et ipsum redditum
penes se retinuit ... [_folio_ 23] Dicunt eciam quod idem Robertus de
Canle coram iusticiariis domini Regis ultimo itinerantibus in comitatu
isto tulit _breve de natiuitate versus predictum Alexandrum Hugonem et
alios et petiit eos, ut natiuos suos, et tunc ibidem declaratum fuit
quod liberi fuerunt et ipse Ricardus remansit in misericordia. Unde
dicunt, quod ipsi sunt adeo liberi penes se, sicut predictus Robertus
penes se et tenere debent tenementa sua de domino Rege in capite...._ Et
ideo consideratum est, quod dominus Rex recuperet seysinam suam ... et
predictus Alexander Hugo et alii sint _intendentes domino Regi et
balliuis suis uel illis quibus dominus Rex eos dare voluerit..._ Item
coram eisdem justiciariis inquisicio facta fuit per preceptum domini
Regis quod ... tempore quo rex Henricus avus domini regis Henrici filii
regis Johannis contulit abbati manerium de Stonle cum soka ... fuit idem
Rex in seysina de toto manerio integro de Stonle ... et idem Abbas
similiter in seysina ... quousque Petrus de Canle qui fuit collector
redditus de Canle ad instanciam vicinorum suorum ad redditus illos
deferendum domino Regi et pro eis soluendum, subtraxit a se per
diuturnam colleccionem suam et per remissionem et negligenciam dominorum
sine impedimento et calumpnia sectas, relevia, escaetas octo tenencium
qui tenebant _octo virgatas terre de domino Rege et postea de Abbate de
Stonle_ [_folio_ 23d] Anno regni Regis Henrici ... quinquagesimo primo
... _Dominus Rex habuit seysinam dicti hameletti per duas ebdomadas et
deinde dominus Rex per vicecomitem suum posuit prefatum Abbatem in
plenam seysinam dicti hameletti de_ Stonle die Sti Clementis eodem anno
ad magnam crucem ville de Stonle.
See p. 117, n. 1.
The Stoneleigh Register has the following entry on f. 12: Memorandum
quod tempore fundacionis fuerunt in manerio de Stonle lx et xiij
_villani_ quatuor _bordarii_ cum duobus presbyteris tenentes _xxx
carucatas_ terre prout continetur in libro de Domesday, fuerunt eciam
tunc quatuor _natiui siue serui_ in le lone (_sic_) quorum quilibet unum
mesuagium et unum quartronem terre tenebat per servicia subscripta,
videlicet leuando furcas ... et debebant ... redimere sanguinem suum et
dare auxilium domino ad festum Sti Michaelis scilicet Ayde, et facere
braseum et alia servicia seruilia, quorum nomina fuerunt Henricus Croud,
cuius heres Iohannes Shukeburghe; secundus vocabatur Robertus Bedul,
cuius heredes extincti sunt in prima pestilencia. Tercius fuit Galfridus
Dore cuius eciam heredes extincti sunt in eadem pestilencia. Quartus
fuit Robertus Stot qui eciam mortuus est sine herede. Fuerunt eciam
_quatuor liberi tenentes_ in villa de Stonle qui tenuerunt hereditarie
quinque mesuagia et quinque virgatas terre cum pertinenciis de Rege in
capite per seruicia sokemanrie, videlicet Paganus de Stonle qui tenuit
duas virgatas terre, qui Paganus abavus fuit Iohannis de Stonle, patris
Roberti le Eyr. Qui Iohannes de Stonle dedit unum quartronem terre
Iuliane filie sue et Roberto Carteri marito dicte Iuliane, cuius heres
est Iohannes Iulian. Dedit eciam prefatus Iohannes de Stonle cum alia
filia sua Alicia nomine unum mesuagium et unum quartronem terre Roberto
filio Reginaldi Baugy, marito ipsius Alicie et ipsorum heredibus. Qui
Robertus et Alicia dederunt dictum tenementum Willelmo filio Roberti
Staleworthe de Flechamstede et heredibus suis prout inferius pleniter
continetur. Quorum heres est linealiter Willelmus Staleworthe qui modo
ea tenet. Predictus vero Robertus le Eyr dedit omnia residua tenementi
sui cum redditibus et seruiciis Ioanni Sparry et Iohanni Hockele
approwatoribus Abbatis de Stonle. Et ipsi approwatores de licencia
Domini Regis per breue ad quod dampnum predicta tenementa Roberti le
Heyr dederunt Roberto de Hockele Abbati de Stonle et successoribus suis
in perpetuum anno regni Regis Edwardi tercii post conquestum
vicesimo....
Fuerunt eciam duo liberi tenentes in parva Sokemanria, qui tenuerunt
hereditarie duo mesuagia et medietatem unius virgate terre cum pratio et
pertinenciis de Rege in capite. Quorum heredes ea dederunt in feudo de
licencia domini Abbatis Alexandro Lynburgh, Henrico Rachel, Ricardo
Sheperde et Simoni Malyn. Et ipsi ea dederunt Iohanni Hockele
approwatori Thome Pype Abbatis de Stonle. Qui abbas ipsa tenementa una
cum aliis tenementis amortizauit per breue ad quod dampnum, prout in
carta regia inferius contenta plenius apparet. Item fuerunt tenentes
cottarii in predicta villa de Stonle tempore fundacionis Abbatii xxiv
tenentes xxiv cotagia in villa de Stonle pro certis redditibus.
In the description just quoted the greater bulk of the tenants is
described as villains according to the terminology of Domesday and only
a few (six in all) are said to be free socmen and little socmen. But a
remarkable passage on the constitution of the Court and the rights and
duties of its suitors describes these very villains as socmen.
F. 73. Curia de Stonle ad quam Sokemanni faciebant sectam solebat ab
antiquo teneri super montem iuxta uillam de Stonle vocatam Motstowehull.
Ideo sic dicta quia ibi placitabant. Sed postquam Abbates de Stonle
habuerunt dictam Curiam et libertatem pro aysiamento tenencium et
sectatorum fecerunt domum Curie in medio Ville de Stonle. Ad quam curiam
veniunt et sectam faciunt omnes sokemanni manerii de Stonle de tribus
septimanis in tres. Et quilibet eorum tenens unam virgatam terre solvet
domino annuatim 30 denarios, scilicet unum denarium per acram quia
quelibet virgata continet 30 acras et non plus. Et in quolibet hameletto
manerii sunt 8 virgate terre. Et si quod amplius habent, hoc utique
habent de approvacione et assartacione vastorum. Item quodlibet
hamelletum dabit domino sextam porcionem ad communem finem bis per annum
ad curiam visus franciplegii. Ad quem finem prefati socemanni sectatores
curiae nihil solvent sed inferiores tenentes, nisi in casu quod
deficiant tenentes inferiores. Item prefati sokemanni in obitibus suis
dabunt herietum integrum, scilicet unum equum et hernesium et arma si
habuerint. Sin autem melius averium integrum quod habuerint. Et quilibet
heres patri succedens debet admitti ad hereditatem suam anno etatis sue
quintodecimo et solvet domino releuium, scilicet dupplicabit redditum
suum. Et dabit iudicia cum aliis paribus suis sokemannis. Et erit
prepositus colligendo redditum domini quando eligetur per pares suos.
Et debet respondere brevibus et omnia alia facere ac si plene esset
etatis per legem communem. Item Sokemanni habebunt in forinsecis boscis
manerii per visum forestariorum estoverium, scilicet.... Et omnes
tenentes Sokemannorum simul cum tenentibus domini venient cum faucillis
ad bederipam domini ad metendum blada domini. Et ipsi etiam Sokemanni
venient ad ipsam bederipam equitantes cum virgis suis ad videndum quod
bene operantur, et ad praesentandum et ad amerciandum deficientes et
male operantes. Et si non venerint ad dictam bederipam in forma
predicta, debent graviter amerciari.
In the Warwickshire roll (Queen's Remembrancer's Miscellaneous Books, N.
29) villains are mentioned, but only exceptionally and in very small
number. It looks as if they represented that class of the tenantry which
in the Register is described as _servi vel nativi_. It would be out of
the question to print here the detailed account of the distribution and
character of the holdings given in the Hundred Roll--this must be left
to the future editor of that document. But I may say here, that the
holdings are much scattered, and that it would be difficult to trace the
original plan mentioned in the Register. Still the division into
principal tenants, mesne tenants, and cotters is clearly discernible,
and the principal tenants are called free in the manor itself as well as
in the hamlets. In two cases they are also spoken of as socmen.
VII.
See p. 101, n. 5.
[County Placita, Norfolk, No. 5, 21 Ed. III.]
Edwardus Dei gracia Rex Anglie et Francie et Dominus Hibernie
Thesaurariis et Camerariis suis salutem. Volentes certis de causis
cerciorari super tenore recordi et processus loquele que fuit inter
Willelmum de Narwegate et quosdam alios homines Rogeri Bygod nuper
Comitis Norfolk de Manerio de Haluergate quod est de antiquo dominico
corone Anglie ut dicitur, et ipsum comitem coram Domino E. nuper Rege
Anglie auo nostro anno regni sui vicesimo primo per breve ejusdem aui
nostri de eo quod idem Comes ostenderet quare a praefatis hominibus
exigebat alias consuetudines et alia seruicia quam facere deberent et
ipsi et antecessores sui tenentes de eodem Manerio facere consueverunt
temporibus quibus Manerium illud fuit in manibus progenitorum nostrorum
quondam Regum Anglie, vobis mandamus quod scrutatis rotulis praefati aui
nostri de tempore praedicto qui sunt in thesauraria nostra sub custodia
vestra (ut dicitur) tenorem recordi et processus praedictorum nobis in
Cancellaria nostra sub sigillo scaccarii nostri sine dilacione mittatis
et hoc breve. Teste Leonello filio nostro carissimo Custode Anglie apud
Redyng vi die Julii anno regni nostri Anglie vicesimo primo regni vero
nostri Francie octavo.
Placita coram Domino Rege de termino Sancti Michaelis. Anno regni Regis
Edwardi filii Regis Henrici xxj finiente incipiente xxii^{o}.
Rogerus Bygod Comes Norfolk et Marescallus Anglie attachiatus fuit ad
respondendum Willelmo de Narwegate, Henrico filio Simonis de Culyng,
Thome filio Henrici de Haluergate, Ricardo atte Howe, Roberto Sewyne et
Ricardo filio Henrici Margerie hominibus praedicti Rogeri le Bygod de
Manerio de Haluergate quod est de antiquo dominico corone Anglie de
placito quare exigit a praefatis Willelmo de Narwegate et aliis alias
consuetudines et alia seruicia quam facere debent et antecessores sui
tenentes de eodem Manerio facere consueverunt temporibus quibus Manerium
illud fuit in manibus praedecessorum Regis Regum Anglie. Et unde
queruntur cum antecessores sui tenentes de eodem Manerio tempore Domini
Willelmi Regis Conquestoris quando praedictum Manerium fuit in manum
suam tenuerunt tenementa sua per certa seruicia videlicet pro qualibet
acra terre quam in eodem Manerio tenuerunt duos denarios per annum et
qui plus tenuerunt plus dederunt et sectam ad Curiam Regis in eodem
Manerio de tribus septimanis in tres septimanas et quando aliquis eorum
in Curia praedicta pro aliqua transgressione esset amerciandus per sex
denarios tantum amerciatus esse debet, et similiter per dupplicacionem
firme sue minoris vel majoris post mortem antecessorum suorum et solent
talliari quando Dominus Rex talliare fecit dominia sua Anglie pro omni
seruicio et per praedicta certa seruicia terras et tenementa sua
tenuerunt a tempore Regis Willelmi praedicti usque ad tempus Domini
Henrici Regis patris Domini Regis nunc, quod Rogerus Bygod antecessor
praedicti Rogeri qui nunc est ab eis et antecessoribus suis alias
consuetudines et alia seruicia exigebat et ad ea facienda distrinxit
videlicet pro qualibet acra quam in praedicto Manerio tenuerunt quatuor
denarios per annum et tallagium alto et basso cariagium aueragium et
merchettum pro filiis et filiabus suis maritandis et de eisdem
propositum faciendum iniuste et pro voluntate sua distrinxit. Et
praedictus Rogerus Bygod qui nunc est illam iniuriam continuando a
praefatis Willelmo et aliis praedicta seruicia villana et incerta exigit
et eos ad ea facienda distringit et inde producunt sectam etc.
Et praedictus Rogerus Bigod venit et defendit vim et iniuriam quando
etc. Dicit quod praedicti Willelmi et alii non debent ad breve suum
respondere. Dicit enim quod ipsi in brevi suo dicunt se esse homines
ipsius Rogeri de Manerio praedicto et tenentes de eodem Manerio qui
quidem Willelmus et alii non sunt homines ipsius Rogeri de Manerio
praedicto nec fuerunt die inpetracionis brevis sui videlicet xij die
Maij Anno regni Regis nunc xxj^{o} nec eciam aliqua tenementa tenent in
praedicto Manerio nec tenuerunt die praedicto nec antea per magnum
tempus unde petit iudicium etc.
Et praedictus Willelmus de Narwegate dicit quod ipse est homo praedicti
Comitis de Manerio praedicto et tenet in eodem Manerio unum Messuagium
unum croftum et dimidiam acram Marisci et tenuit die impetracionis
brevis praedicti. Et Thomas filius Henrici dicit quod ipse est homo
praedicti Comitis et tenet in praedicto Manerio unum messuagium et octo
acras marisci et tenuit die praedicto etc. Et de hoc ponunt se super
patriam. Et praedictus Comes similiter. Ideo veniant inde Jurati coram
Rege a die Sancti Hillarii in xv dies ubicumque etc. Quia tam etc. Et
praedicti Henricus Ricardus atte Howe Robertus et Ricardus filius
Henrici dicunt quod reuera ipsi iam viginti annis elapsis inpetrauerunt
quoddam breve consimile etc. tempore quo ipsi fuerunt homines ipsius
Comitis et tenentes de Manerio praedicto coram Domino Rege versus
praedictum Comitem et ab illo tempore usque nunc illud placitum sine
interrupcione sunt prosecuti ita quod si aliquod breve amiserunt medio
tempore statim breve consimile resussitauerunt. Unde dicunt quod si
praedictus Comes pendente praedicto placito et diligenter prosecuta quod
eis pro uno placito et pro uno et eodem brevi debeat reputari ipsos a
tenementis suis in eodem Manerio eiecit homines ipsos nunc ab agendo
repellere non debet. Et quod ita sit etc. offerunt verificare etc. tam
per placita que secuntur Dominum Regem quam per placita de Banco etc. et
eciam per placita ultimi itineris Salomonis de Roffa in comitatu
Norffolk etc. Et praedictus Rogerus Comes etc. dicit quod praedicti
Henricus Ricardus, Robertus et Ricardus non continuauerunt placitum suum
praedictum sine interruptione in forma praedicta etc. et hoc offert etc.
Ideo mandatum est Thesaurariis et Camerariis etc. quod scrutatis
brevibus et rotulis de placitis que sequuntur Dominum Regem a die
praedicto usque ad festum Sancti Michaelis anno regni Regis nunc xij^{o}
et eciam brevibus et rotulis de itinere praedicti Salomonis. Et similiter
mandatum est Elye de Bekyngham quod scrutatis rotulis et brevibus de
tempore Thome de Weylaund etc. que sunt sub custodia sua etc. Et quid
inde etc. scire faciant Domino Regi a die Pasche in xv dies ubicumque
etc. Idem dies datus est partibus etc. Ad quem diem venit praedictus
Comes et praedicti Henricus filius Simonis, Ricardus atte Howe, Robertus
Sewyne et Ricardus filius Henrici non sunt prosecuti. Ideo ipsi et
plegii sui de prosequendo in misericordia videlicet Adam atte Gates,
Henricus de Blafeld et Eustachius Hose de eadem. Et praedictus Comes
inde sine die etc. Postea in octabis Sancti Hillarii Anno regni regis
nunc vicesimo quarto venerunt praedicti Willelmus de Narugate et Thomas
filius Henrici et praedictus Rogerus Bygod venit et similiter Jurati
venerunt qui dicunt super sacramentum suum quod praedicti Willelmus et
Thomas praedictis die et anno non fuerunt homines praedicti Comitis
neque tenentes de praedicto Manerio. Ideo consideratum est quod
praedicti Willelmus et Thomas nichil capiant per breve suum set sint in
misericordia pro falso clamio. Et praedictus Rogerus Comes inde sine die
etc.
[In dorso:]
Memorandum quod tenor recordi et processus infrascripti exemplificatus
fuit sub magno sigillo Domini Regis sub hac forma videlicet. Edwardus
Dei gracia Rex Anglie et Francie et Dominus Hibernie Omnibus ad quos
etc. salutem. Inspeximus tenorem recordi et processus cuiusdam placiti
quod fuit coram Domino E. quondam Rege Anglie auo nostro anno regni sui
vicesimo primo inter Willelmum de Norwegate et quosdam alios et Rogerum
Bygod nuper Comitem Norfolk quem coram nobis in Cancellaria nostra
venire facimus in hec verba Placita coram Domino Rege etc. recitando
totum tenorem praedictum usque in finem et tunc sic Nos autem tenorem
recordi et processus praedictorum tenore praesencium duximus
exemplificandum. In cuius etc. Teste Leonello filio nostro carissimo
Custode Anglie apud Redyng xx die Julii anno regni nostri Anglie
vicesimo primo regni vero nostri Francie octauo que quidem brevia non
irrotulantur aliter quam hic inseritur.
VIII.
See p. 104, n. 1.
[Exch. Memoranda Q.R. 20 Edw. I, Trin. m. 21 d.]
Baronibus pro hominibus de manerio de Costeseye.
Rex mittit Baronibus peticionem hominum manerii de Costeseye presentibus
inclusam mandantes, quod audita intellecta et diligenter examinata
peticione predicta de diversis gravaminibus et iniuriis per preceptum
baronum et per Ricardum Athelwald de Crek ballivum eiusdem manerii
eisdem hominibus multipliciter illatis, predictis hominibus iusticie
complementum inde exhiberi faciatis prout de iure et secundum legem et
consuetudinem regni Anglie fuerit faciendum Ne oporteat ipsos homines
ad Regem iterato habere recursum ex causa praedicta. Teste Rege apud
Enleford VII die Maii XX^{o}.
_Peticio hominum de manerio de Costeseye._ A nostre Seignur le Rey e a
sun conseil se pleynent les pours genz le Rey de la basse tenure de le
maner de Costeseye ce est a sauer de la foreyn sokne com de Colton,
Eston, Hiningham, Thodeham, Rongelsunde, Weston, Tauerham, Berford,
Wramplingham et Dunholt ke Richard de Crek bailif le Rey del maner
avantdit a tort lur greve e distreynt e lur met hors de lur usages en
dreyt de lur tenaunce uses del tens memore ne curt. Ce est a sauer par
la ou memes cele genz sa en arere en les tens les cuntes de Bretayne, e
en le tens le Rey Johan e le Rey Henri ke deus asoile e en le tens
nostre Seignur le Rey Edward ke deu gard e de tuz iceus a queus le maner
avaunt dit a este done ou lesse a la volunte de Reys avaunt nomes pur ke
le Cunte de Bretayne e le viscunte de Dohay mesnes le maner forfirent,
unt vendu, done e lesse lur terres champestres per aper (?) saunz conge
demaunder en curt, forpris lur mes e lur croftes, la vient mesme celuy
Richard bailif auant nome e lur terres saunz conge venduz per aper (?)
ad seysi a greuuesement les ad amercie pur les tenemenz issi uendus
solonc les usages de lur tenaunce. Estre ce memes celuy Richard a tort
greve e distreint les genz auaunt nomes pur office de prouosterie e de
coylure (collector) ne ils ne deyuent estre ne soleyent, mes les viles
de Costeseye et de Banburg seruent et deyuent servir de tel office pur
lur tenaunce charge de tel seruise. E priunt la grece lur seignur le Rey
ke il voyle fere enquere par pais si le plest coment ils deyuent tenir e
ke la duresse fete a eus par le bailif auant dit seit redresse. Estre ce
les poure genz auant nomes sunt mut enpoureriz pur un taylage voluntref
ke le bailif Alianor Reyne de Engletere la mere nostre seignur le Rey ke
deus asoile nut pris a tort de an en an ce est a sauer xx markes de hom
apele communage ke auaunt sun tens ne fut donc mes a la premere venue de
nouel signur une conisaunce de Cs. cum fu done a nostre seignur le Rey
Edward kant le maner li fu done forpris les viles de Costeseye e de
Banburg ke sunt taylables haut e bas a la volunte le Rey cum costemers
del maners. Pur ce est ke les paure genz auaunt nome priunt la grace
nostre seignur le Rey si le plest pur le regard de pite ke il empreynt
pite de eus e lur face suffrir lur usages del tens dunc memore ne curt e
grace del torteuus taylage pur le quel il sunt mut empoairiz.
IX.
See p. 108, n. 1.
[Augmentation Court Rolls, XIV. 38.]
(Havering atte Bower, Essex.)
Curia ibidem tenta die Iouis proxima ante festum S. Iohannis ante portam
latinam anno r. r. Ricardi Secundi post Conquestum vicesimo. Ricardus
Rex Ballivis Thome Archiepiscopi Ebor et Edwardi comitis de Hauering
atte Boure. Precipio vobis quod sine dilatione et secundum consuetudinem
manerii de Hauering atte Boure plenum rectum teneatis Roberto Merston de
London et Ricardo Quylter de Hauering etc.
Hec est finalis concordia facta in curia Thome archiepiscopi Cantuar et
Edwardi Comitis Roteland apud Hauering atte Boure--coram Ricardo Wytl
... tunc senescallo et Ricardo Wylde tunc ballivo et aliis domini Regis
fidelibus tunc ibi presentibus inter etc.
Curia Thome Archiepiscopi Cantuarensis et Edwardi Comitis Roteland tenta
ibidem die Iouis proxima ante festum S. Bartholomaei apostoli anno r. r.
Ricardi Secundi post conquestum vicesimo primo.
Inquisicio ex officio coram Ricardo Wythmerssh senescallo de Haueryng
atte Boure per sacramentum Walteri Herstman----juratorum qui dicunt
supra sacramentum suum quod Alicia Dyere que de domino Rege tenuit duas
acras terre in marisco obiit seisita. Et quod Thomas de Donne filius
predicte Alicie est eius heres propinquior et plene etatis, ideo
preceptum seisire dictam terram in manus domini et respondere de exitu
quali etc. Item dicunt quod idem Thomas ingressus est feodum domini
videlicet unum mesuagium cum pertinentiis in Romford quod habuit ex dono
et feofamento Iohannis Cole ideo preceptum ipsum distringere pro
fidelitate et relevio etc. Item predicta Inquisitio onerata super
sacramentum suum si aliquis homo nativus de sanguine ingressus fuerit
feodum domini nec ne et quantum feodum illud valeat per annum dicit quod
non est aliquis homo nativus de sanguine ingressus feodum domini. Set
dicunt quod est quidam Iohannes Shillyng qui sepius dictus fuerat fore
nativus. Et dicunt ultra quod quidam Iohannes Shillyng pater predicti
Iohannis fuit alienigena et quod predictus Iohannes Shillyng quo ad
eorum cognitionem est liber et libere conditionis et non nativus. Item
prefata inquisitio dicit quod Robertus Clement de London Sadelere
ingressus est feodum domini videlicet unum mesuagium cum pertinenciis in
Romford quod habuit ex dono et concessione Iohannis Cole Taillor ideo
preceptum ipsum distringere pro fidelitate et relevio etc.
Item dicunt quod quidam homo veniens in comitiva domini Regis dimisit
quemdam equum in hospicio Iohannis atte Heth et cepit ibidem unum alium
equum etc. et dimisit predictum equum ibidem stare per unum mensem
absque aliquid clamando de predicto equo ideo preceptum dictum equum
seisire ad opus domini Regis et inde Regi respondere.
Curia ibidem tenta die Iouis proxima post festum S. Martini anno r. r.
Ricardi secundi post conquestum vicesimo primo.
Compertum est per inquisicionem ex officio captam per sacramentum Thome
Olyuere ... Qui dicunt super sacramentum suum quod quidam Iohannes Pecok
quondam tenuit unam peciam terre in marisco vocatam Wattiscroft pro qua
quidem terra reparabat et reparare tenebatur quoddam murum in marisco
erga Tamisiam in defensum aque inundantis. Et idem Iohannes Pecok de
terra predicta obiit seisitus. Et quod quidam Iohannes filius predicti
Iohannis Pecok est eius heres propinquus. Et dicunt quod predictus murus
est wastatus pro defectu reparacionis ita quod aque Tamisie inundans
superfluit murum predictum et demergit mariscum predictum ad grave
dampnum domini Regis et tenencium suorum.
Et predictus Iohannes filius Iohannis Pecok in propria persona sua dicit
quod non supponitur per presentacionem predictam quod terra predicta
vocata Wattiscroft prefato Iohanni filio predicti Iohannis Pecok
descendebat post mortem Iohannis Pecok patris sui nec quod predictus
Iohannes filius Iohannis Pecok aliquo tempore fuit tenens terre predicte
vocate Wattiscroft. Et si videtur Curie quod protestacio est sufficiens,
etc. dicit per protestacionem quod ipse non fuit heres predicti Iohannis
Pecok patris sui tempore mortis sue, etc. Et ulterius protestando dicit
quod predicta terra vocata Wattiscroft tenetur ad communem legem. Et
ulterius dicit pro placito quod ipse numquam habuit poscessionem
manualem de terra predicta set dicit quod quidam Iohannes Harwere post
decessum predicti Iohannis patris sui et longo tempore ante
inquisicionem predictam captam intravit in terram predictam ad usum
cujusdam Iohannis Selman ... _Et dictum est pro domino Rege_ quod
predictus Iohannes filius predicti Iohannis Pecok fuit tenens terre
predicte die quo inquisicio predicta capta fuit. Et petitum est per
dominum Regem quod inquiratur per patriam. Et pro predicto Iohanne
filio, etc. similiter. [Jurati] dicunt super sacramentum suum quod
predictus Iohannes Pecok vivente predicto Iohanne patre suo occupavit
predictam terram vocatam Wattiscroft per voluntatem patris sui et cepit
inde exitus et proficua. Et postea predictus Iohannes Pecok pater, etc.
obiit post cujus mortem predictus Iohannes filius, etc. intrauit ut
filius et heres et terram predictam ocupavit et inde cepit exitus
proficua, etc. Et dicunt quod est eorum consuetudo quod nullus homo
adquireret sibi aliquam terram in marisco que oneratur ex reparacione
alicuius muri in marisco erga Tamisiam nisi haberet sufficientem tenuram
in eodem dominio extra mariscum que poterit portare omnes reparaciones
illius muri in marisco quum necesse fuerit. Et dicunt esciam quod
Iohannes Selman non fuit tenens terre predicte vocate Wattiscroft die
quo officium predictum captum fuit set quod predictus Iohannes filius,
etc. terram predictam occupavit usque in diem quo predictum officium
captum fuit. Et dicunt quod est ad dampnum domini Regis quod murus
predictus non fuit reparatus predicto die, etc. de triginta et octo
solidis uno obolo.
Curia ibidem tenta die Iouis in festo S. Iohannis Apostoli et
Evangeliste anno r. r. Ricardi post Conquestum vicesimo primo.
Dominus Rex mandauit breue suum clausum Ballivis Edwardi Ducis Albemarle
de Haueryng atte Boure ... Precepimus vobis quod sine dilacione et
secundum consuetudinem manerii de Haueryng atte Boure plenum rectum
teneatis Ricardo filio Iohannis Legati de uno mesuagio viginti et octo
acris terre et una acra prati cum pertinenciis, etc.... Et predictus
Ricardus invenit plegios ad prosequendum breue predictum ... Et fecit
protestacionem ad sequendum breue predictum in natura breuis de
convencione. Virtute cuius brevis preceptum Ballivo quod summonere
faciat per bonos summonitores secundum consuetudinem manerii de Haueryng
atte Boure, etc....
Curia tenta ibidem die Iouis proxima ... vicesimo tercio.
Dominus Rex mandauit breue suum clausum Ballivis suis de Haueryng atte
Boure.
Curia ibidem tenta die Iouis proxima ante festum S. Laurencii martiris
anno r. r. Ricardi secundi post conquestum vicesimo tercio....
Ricardus Dei gratia Rex Anglie ... Ballivis suis de Haueryng, etc.
Hec est finalis concordia facta in curia domini Regis de Haueryng atte
Boure die Iouis ... coram Ricardo Withmerssh tunc senescallo et Iohanne
Bokenham tunc Balliuo et aliis domini Regi fidelibus tunc presentibus
inter W., etc.
X.
See p. 143, n. 3.
Exchequer Q.R. Ancient Miscellanea.
902/77 (No date, about 1300.)
Inquisitio: Will's Frere Walt's Michel Joh'es Broket }
Rob's Diaconus Elias de Leyes Thomas Coker }
Rob's Snellyng Elias Pany Will's Hardyng }
Joh'es Longus Godefrid' Newman Will's Walysce }
Joh'es Ordmar }
Qui dicunt subscripta per sacramentum suum.
{ Estrelda } man' apud
{ Maur' ate { Agnes } Machynge
{ Neuthon'
{ { Joh'es Rotlonde }
{ Joh'es { Walt's Rotlonde } man'
{ Rotlonde { Thomas Rotlonde } London'.
{
{ { Joh'es Pany
{ { Will's Pany
{ Will's Pany { Ric's Pany
{ { Elias Pany--modo tenens
{ { Agnes Pany
{
Nativus-- { Nich's ate { Simon ate nullus ab eo.
{ Neuthon' { Neuthon'
{ { { Ric's le Couper
{ { Thomas le { Simon le Couper
{ { Couper { Joh'es le Couper
{ { { Isabella la Couper
{ {
{ { Joh'es Bate Walt's ate Neuthon'--modo
{ { tenens
{ { Cristina Will's
{ {
{ { Wymarks nullus ab eo
{
Pater extraneus { { Will's Woderove
ignotus adhuc { Joh'es Galfr's { n.
propter { Woderove Woderove { n.
diurnitatem {
temporis { Will's nullus ab eo
{ Vaccarius { Steph's Pistor
{ { Will's Pistor
{ { Will's { Rog's Pistor
{ { Pistor { Joh'es Pistor
{ { { Cristina Pistor
Nativus-- { Rog's ate { { Isabella
Neuthon' { Cristina ate nullus ab eo (_sic_)
{ Neuthon' { Joh'es Broket
{ { Joh'es Broket Junior
{ Agnes ate { Matild' Broket
Neuthon' { Isabella Broket
{ Agnes Broket
Nativus-- { Alanus ate nullus ab eo
{ Hache
{ { Ric's ate Hache Junior
{ { Nich's ate Hache
{ { Rog's ate Hache
{ { Will's ate Hache
{ { Will's ate Hache
{ { Adam ate { Will's ate Hache
{ { Hache { Joh'es ate Hache
{ { { Alic' ate Hache
{ { { Matild' ate Hache
{ { { Emmot' ate Hache
Nativus-- { Rog's ate { { Marger' ate Hache
{ Hache {
{ { Matild' ate nullus ab eo
Editha la Daye { Hache
{ Orgor' ate nullus ab eo
{ Hache { Will's ate Broke
{ { Walt's ate Broke
{ { Walt's ate Broke
{ { Ranulfus ate { Ric's ate Broke--London'
{ { Broke { Cristin' ate Broke
{ { { Matild' ate Broke
Nativus-- { Walt's ate { { Agnes ate Broke
Hache {
{ { Walterus Mathy
{ { Will's Mathy
{ Matheus ate { Agnes Mathy
{ Broke { Emmot' Mathy
{
{ Mathild' ate nullus ab ea.
Broke
XI.
See p. 188, n. 2.
The best way to form an opinion as to the position of the hundredors
among other classes will be, I think, to start from a closer examination
of the Ely Surveys, which give the term several times. They are peculiar
in this respect, and only in this. A comparison with other Cartularies
will show at once, that the same thing is to be found elsewhere over and
over again.
Both Ely Surveys--that of 1222 (Tiberius, B. ii) and that of 1277
(Claudius, C. xi)--are remarkably alike, and may serve as an
illustration of the continuity of the fundamental organisation of a
feudal village. I shall take the later Cartulary because it is a trifle
fuller, and coincides in time with the Hundred Rolls. It would not be
sufficient to give only the entries relating to the hundredors, because
the reader would not be able to judge of their position in relation to
other classes. I may be allowed in consequence to present rather large
extracts.
In the manor of Wilburton belonging to the Ely Minster we find the
following classification of the tenantry[868] [f. 49 sqq.]
_De hundredariis. Et libere tenentibus._
Philippus de insula tenet 16 acras de mara et debet sectas ad curiam
Elyensem et ad curiam de Wilbartone, _et in quolibet hundredo per totum
annum_. Et dat ad sixþepany et wardpany, et arabit cum caruca sua per
duos dies in hyeme et habebit quolibet die unum denarium. Et arabit in
XL^{ma} per 2 dies et habebit quolibet die unum denarium.... Et inveniet
omnes tenentes suos ad magnam precariam autumpni ad cibum episcopi. Et
dabit pro filia sua.
Ricardus filius Rogeri tenet 12 acras de ware et debet sectas ... (the
same as Philip). Et dabit leirwite pro filia sua et gersumam cum ipsam
maritare uoluerit, scilicet 30 et 2 den. Et tallagium cum aliis. Et de
herieto meliorem bestiam uel 30 et 2 denarios, si non habeat bestiam.
Oues sue non iacebunt in faldo domini....
_De operariis et plenis terris._
Samson filius Jordani tenet 12 acras terre de Wara que faciunt unam
plenam terram ... Et sciendum quod tota villata, tam liberi quam alii,
debent facere 40 perticatas super calcetum de Alderhe sine cibo et
opere.
In Lyndon the division of the tenantry is somewhat more complex [f. 52
sqq.].
_De militibus._
Philippus de insula tenet tres carucatas in Hinegeton per seruicium
unius militis. Et sciendum quod omnes tenentes sui ibidem debent uenire
ad precariam carucarum episcopi cum quanto iungant per duos dies in
hyeme et per 2 dies in XL^{ma} ... Et dominus Philippus de Insula debet
sectam ad curiam Elyensem. Et ad curiam de Lyndon, in aduentu
senescalli.
Nigellus de Cheucker tenet 2 carucatas terre per seruicium unius militis
cum terra sua de Harefeud ... Et liberi tenentes sui _qui tenent per
soccagium debent unam sectam ad frendlese hundred_, scilicet ad diem
sabbati proximum post festum S^{ti} Michaelis.
_De hundredariis._
Robertus de Aula tenet 40 acras terre de wara per _seruicium sequendi
curiam Elyensem_. _Et quodlibet hundredum et curiam de Lyndon...._ Et
ueniet ad precarias cum caruca sua ... Et inueniet omnes tenentes suos
ad magnam precariam episcopi in autumpno ad cibum domini. Et ipsemet
ibit ultra eos eo die. Et habebit cibum suum similiter cum balliuis
domini. Et _ueniet coram justiciariis ad custum suum proprium ... Et
sciendum quod iste et quilibet hundredarius_ dabit gersumam pro filia
sua maritanda, scilicet 32 denarios. Et dominus episcopus habebit
meliorem bestiam de domo sua pro herietto siue 32 denarios, si bestiam
non habuerit et operabitur super calcetum de Alderhe sine cibo pro se et
tenentibus suis.
Galfridus le Sokeman tenet 12 acras et dimidiam de wara....
_De consuetudinariis qui vocantur Molmen._
Patrik filius Henrici le frankeleyn tenet 10 acras terre in hylle pro
duobus solidis ... Et ueniet ad precariam carucarum cum caruca sua uel
cum quanto iungit ... Et debet sectas ad curiam de Lyndon ... Et dabit
gersumam pro filia sua maritanda ad voluntatem domini. Et in obitu suo
dominus habebit meliorem bestiam domus pro hereto uel triginta duos
denarios, si bestiam non habuerit. Et dabit tallagium. Et filius suus et
heres dabit releuium.
_De operariis qui tenent plenas terras._
Radulfus filius Osbern tenet unam plenam terram que continet 10 acras de
wara.
The next survey is that of Dudington (f. 63 sqq.).
_De libere tenentibus et hundredariis in Dudlingtone et Wimblingtone._
(The typical hundredor is made to pay merchet, leyrwite, and heriet as
above.)
_De consuetudinibus censuariorum in Dudingtone._
Radulfus filius Willelmi tenet unum mesuagium quod continet dimidiam
acram pro 12 denariis.... Et dabit gersumam pro filia sua et leyrwite ad
voluntatem domini. Et dupplicabit redditum suum pro suo releuio.
_De consuetudinibus operariorum in Dudington._
(They hold 'full lands' of 12 acres, and perform all kinds of
agricultural work.)
If we turn now to the Survey of Wyvelingham (f. 111 sqq.), we shall not
find the heading '_hundredarii_,' but it will not be difficult to
discern the tenants who correspond to the hundredors of the former
Surveys.
_De libere tenentibus._
Henricus Torel tenet dimidiam virgatam terre pro decem et octo denariis
equaliter. Et ueniet in autumpno ad magnam precariam domini cum omnibus
hominibus suis quot habuerit laborantes ad cibum domini. Et dabit
tallagium si dominus voluerit. Et gersumam pro filia sua. Et debet
sectam curie et molendini. Et ibit cum aliis extra uillam ad
districtiones faciendum.
Willelmus Nuncius tenet dimidiam virgatam pro 18 denariis equaliter. Et
faciet omnia alia sicuti predictus Henricus Torel.
Thomas filius Oliue tenet unam virgatam terre pro 6 denariis equ. ad
festum S^{ti} Andreae. Et arabit tres rodas terre per annum.... Et
herciabit cum equo suo ante Natale per unum diem integrum sine cibo et
per unum diem in quadragesima sine cibo ... Et falcabit cum uno homine
per unum diem integrum sine cibo. Et adiuuabit fenum leuandum et
cariandum sine cibo. Et sarclabit per unum diem integrum sine cibo. Et
illud quod messuerit cariabit sine cibo. Item portabit breuia domini
episcopi uel senescalli usque ad Dudington uel ad locum consimilem. Et
dabit tallagium, herietum et leyrwite, et gersumam pro filia sua. Et
_debet sectam Comitatus hundredi, et curie_, et molendini. Oues sue
iacebunt in faldo domini ut supra....
_De operariis._
Thomas Wecheharm tenet dimidiam virgatam terre que continet 15 acras
terre.
In Shelford (f. 125 sqq. Cf. Rot. Hundr. ii. 544) there are only two
main headings: 'de militibus' and 'de consuetudinariis et censuariis;'
but I think it is quite evident from the Survey that the first ought to
run 'de militibus et libere tenentibus,' or something to the same
effect, and that it includes the hundredors.
_De militibus._
Johannes de Moyne miles tenet unum mesuagium et unam rodam terre que
fuit coteria operabilis in tempore Galfridi de Burgo Elyensis episcopi
pro duobus solidis equ. Idem Johannes tenet unum mesuagium quod fuit
Michaelis de la Greue pro 14 den. equ. Et inueniet unum hominem ad
quamlibet trium precariarum ad cibum domini. Et metet dimidiam acram de
loue-bene sine cibo. Et inueniet unum hominem ad fenum leuandum et
tassandum in curia domini episcopi. Et dabit tallagium cum
consuetudinariis pro tanta portione.
Johannes filius Nicholai Collogne tenet dimidiam hydam terre _per
seruicium sequendi comitatum et hundredum_. Idem tenet quartam partem
curie sue pro uno niso (_sic_) uel duobus solidis....
In Stratham the Molmen are reckoned with the freeholders and hundredors
(f. 44).
_De libere tenentibus et censuariis._
Walterus de Ely miles tenet 50 acras de wara unde debet sectam _ad
curiam de Ely. Et ad curiam de Stratham. Et in hundredum de
Wycheford...._ Et faciet omnes consuetudines sicut Johannes filius
Henrici subscriptus.
Johannes filius Henrici Folke tenet 10 acras de wara. Et debet _sectam
hundredi per totum annum, scilicet ad quodlibet hundredum et sectam ad
curiam de Ely et de Stratham_.... Et dabit gersumam pro filia sua
maritanda.
_De consuetudinibus operariorum_, etc.
The entries quoted are sufficient, it seems, to establish the following
facts:--
1. The hundredors of the Ely Minster are people holding tenements
burdened with the obligation of representing the manor in the hundred
and in the county.
2. The tenure may be quite distinct from the personal condition of the
holder. A knight may possess the tenement of a hundredor in one place
and a military fee in another (Philip de Insula in Wilburton and in
Lyndon.)
3. A free tenant is not _eo ipso_ a hundredor. Some holdings are singled
out for the duty. (Henry Torel, William 'Nuncius,' and Thomas filius
Olive in Wyvelingham. Cf. Lyndon.)
4. In many cases the hundredors are mentioned without being expressly so
called, and such cases present the transition between the Ely Surveys
and other Cartularies which constantly speak of privileged tenants
holding by suit to the hundred and to the county. (See the quotations on
p. 189, n. 2, and p. 191, n. 1.)
But there is another side to the picture. In the cases of which we have
been speaking till now the obligation to attend the hundred and the
county is treated as a service connected with tenure, and has to meet
the requirements of the State which enforces the representation of the
villages at the Royal Courts. Such a system of representation follows
from the conception of the County and of the Hundred as political parts
of the kingdom on the one hand, and as composed of Manors and Villages
or Vills, on the other. This may be called the _territorial_ system. But
another conception is lingering behind it--that namely of the County,
as a folk, and of the Hundred, as an assembly of the free and lawful
population. The great Hundred is derived from it, but even in the
ordinary meetings all the freeholders are entitled, if not obliged, to
join. The Manor and the Vill have nothing to do with this right, which
is not one of representation, but an individual one and extends to a
whole class. This may be called the _personal_ system of the Hundred. It
is embodied in the so-called 'Leges' of Henry I. And therefore we find
constantly in the documents, that the suit to the hundred, to the
county, and also that to the sheriff's tourn and to meet the justices,
are mentioned in connection with two different classes of people. On one
hand stand the representatives of the township, on the other the free
men, free tenants or socmen bound individually to attend the hundred and
to perform other duties which are enforced on the same pattern. The
Hundred Rolls give any number of examples.
I. 55: liberi homines de Witlisford et quatuor homines et prepositus
solebant venire ad turnum vicecomitis set post bellum de Evesham per
Baldewynum de Aveny subtracta fuit illa secta, set nesciunt quo
warranto.
I. 154: Idem abbas (de Wauthan) subtraxit ad turnum vicecomitum sectam 4
hominum et prepositi de manerio suo de Esthorndone et de liberis
hominibus suis in eadem villa et in villa de Stanford.
I. 180: Omnes liberi tenentes et quatuor homines et prepositus de Morton
Valence subtraxerunt sectam ad turnum vicecomitis bis in anno ad idem
hundredum.
In Shropshire we find the question put to the jurors of the inquest (II.
69): Si homines libere tenentes et 4 homines et prepositus de singulis
villis venerint ad summonicionem sicut preceptum est.
II. 130: Dominus Ricardus Comes Gloverniae subtraxit 4 thethingas
videlicet Stockgiffard, Estharpete Stuctone et Westone de hundredo de
Wintestoke et ipsas sibi appropriavit. Item dicunt quod Thomas de Ban
... et ceteri libere tenentes predictarum 4 thethingarum solebant sequi
dictum hundredum et se subtraxerunt a termino predicto.
II. 131: Dicunt quod una decena de Borewyk et alia decena Chyletone cum
liberis hominibus subtrahuntur de hundredo domini Regis de la Hane.
I. 17: Manerium de Collecote et 8 liberi Sokemanni tenentes in dicto
manerio solebant facere sectam ad hundredum de Kenoteburie et subtracti
sunt a tempore Alani de Fornham quondam vicecomitis usque nunc.
The last instances quoted do not speak directly of the four men and the
reeve, but their meaning is quite clear and very significant. The suit
of the tithing and of the manor is contrasted with the personal suit of
the free tenants. We find often entries as to the attendance of the
manor, the township, or the tithing.
I. 181: Dicunt quod abbas de Theokesberie pro terra sua in Codrinton ...
Episcopus Wygorniensis pro manerio suo de Clyve per quatuor homines et
prepositum solebant facere sectam ad istum hundredum ad turnum
vicecomitis bis in anno usque ad provisiones Oxonienses.
I. 105: Villata de Monston per 2 annos et villata de Stratton per 10
annos subtraxerunt sectam hundredi.
I. 78: Dicunt quod idem Walterus (de Bathonia) removit villanos de
Sepwasse in forinsecum et feofavit liberos de eadem terra in quo terra
quidam tuthinmannus (_corr._ quedam tethinga?) jungi solebat et sequi ad
hundredum forinsecum predictum et est secta ejusdem tethinge subtracta
de tempore Regis Henrici patris Regis Edwardi anno ejus quarto.
It appears that the feoffment of free tenants was no equivalent for the
destruction of the tithing. The entry is remarkable but not very clear.
(Cf. I. 87, II. 133, and Maitland, Introduction to the Selden Soc. vol.
II, pp. xxxi, xxxiii.) In any case the main facts are not doubtful. The
population of the kingdom was bound to attend the assemblies of the
hundred and of the county by representatives from the villages or
tithings, which sometimes, though not always, coincided with the manors.
There were many exceptions of different kinds, but the Crown was
striving to restrict their number and to enforce general attendance at
least for the tourn and the eyre. The representation in these last
cases, though much wider and more regular than at the ordinary meetings
of the hundred and of the shire, was constructed on the same principles,
and the difference lay only in the measure in which the royal right was
put into practice against the disruptive tendencies of feudalism.
The inquest in the beginning of Edward I's reign gives us a very good
insight into the inroads from which the organisation had to suffer,
especially in troubled times[869]. This attendance of the township is
mentioned in marked contrast with the suit of the free tenants or
socmen, which is also falling into disuse on many occasions, and also
supposes a general theory, that the free people ought to attend in
person.
An important point in the process which modified the representation of
the vills in the hundred has to be noticed in the fact, that the suit
from a single village was not considered as a unit which did not admit
of any partition. When the village itself was divided among several
landlords the suit was apportioned according to their parts in the
ownership instead of remaining, as it were, outside the partition. We
might well fancy that the township of Dudesford, though divided between
the Abbots of Buttlesden and of Oseney, would send its deputies as a
whole, and would designate them in a meeting of the whole. We find in
reality, that the fee of one of the owners has to send three
representatives, and the fee of the other two (Rot. Hundr. I. 33; cf. I.
52, 102). This gives rise to a difficulty in the reading of our
evidence. The Hundred Rolls speak not only of suit due from the village,
the tithing, or the manor, but also of the suit from the tenement. In
one sense this may mean that the person holding a free tenement was
bound to attend certain meetings of the commons of the realm. In another
it was an equivalent to saying that a particular tenement was bound to
join in the duty of sending representatives to such meetings. In a third
acceptation of the words they might signify, that a particular tenement
was charged to represent the village in regard to the suits, and for
this reason privileged in other respects. A few extracts from the
Hundred Rolls will illustrate the difficulty.
I. 143: Dicunt quod Johannes de Boneya tenuit quoddam tenementum in
Stocke quod solet facere sectam ad comitatum et hundredum, que secta
postea subtracta fuit per Regem Alemanniae, etc.
Was John de Boneya a socman bound to attend personally, or a hundredor,
a hereditary representative of the village of Stocke?
II. 208: Prior de Michulham subtraxit sectas et servicia 25 tenencium in
manerio suo de Chyntynge qui solebant facere sectam et servicium
hundredo de Faxeberewe et sunt subtracti per 6 annos ad dampnum dicti
hundredi 5 sol. per annum.
The twenty-five tenants in question may be villains joining to send
representatives in scot and in lot with the village (cf. I. 214, 216),
or free socmen personally bound to attend.
II. 225: Prior de Kenilworth subtraxit, etc., de una virgata terre in
Lillington 15 annis elapsis et de 4 virgatis in Herturburie 18 annis
elapsis ... qui solent sequi ad hundredum de tribus septimanis in tres
septimanas.
Here it would be difficult to decide whether the suit is apportioned
between the tenements of the village on the principle of their
contributing jointly to perform the services, or else bound up with
these particular virgates as representing the village (cf. I. 34).
I notice this difficulty because it is my object in this Appendix to
treat the evidence as it is given in the documents, and to help those
who may wish to study them at first hand. But as we are immediately
concerned with the position of the 'hundredor,' I shall also point out
that there are cases where a doubt is hardly possible. The tenant who is
privileged on account of the duties that he performs in representing his
village in the hundred court, may be easily recognised in the following
examples.
II. 66: Dicunt quod Rogerus Hunger de Preston solebat sequi comitatum et
hundredum _pro villa de Preston_ in tempore Henrici de Audithelege tunc
vicecomitis Salop 20 annis elapsis, mortuo vero predicto Roberto Hunger,
Abbas de Lilleshul qui intratus fuit in predictam villam per donum
Roberti de Budlers de Mungomery extraxit (_corr._ subtraxit) predictam
sectam 20^{ti} annis elapsis nesciunt quo warranto, unde dominus Rex
dampnificatus est per illam subtraxionem, si idem Abbas warrantum inde
non habet de 40 solidis.
I. 21: Johannes de Grey subtraxit se de secta curie pro villata de
Chilton de uno anno et die (_corr._ et dimidio), unde dominus Rex
dampnificatus est in 18 denariis.
Though the institution of the hundredors has found expression in the
Hundred Rolls, the name is all but absent from them. The rare instances
when it occurs are especially worthy of consideration. I have three
times seen a contraction which probably stands for it, but in one case
it applies distinctly to the hundred-reeve or to a riding bailiff of the
hundred.
I. 197 (Inquest of the hundred of Hirstingstan, Hunts): dicunt etiam
quod homines ejusdem soke rescusserunt aueria que El. hundredarius
ceperat pro debito domini Regis levando et impedierunt eum ad
summoniciones faciendum de assisis et juratis et equum ipsius El.
duxerunt ad manerium de Someresham et eum ibi detinuerunt quousque
deliberavit omnia averia per ipsum capta.
The case is different in regard to the description of Aston and Cote,
Oxfordshire. It is printed on p. 689 of the second volume of the Hundred
Rolls, but printed badly. The decisive headings are not given
accurately, and I shall put it before the reader in the shape in which
it stands in the MS. at the Record Office. The passage is especially
interesting because of the peculiar constitution of the manor of
Bampton, to which Aston and Cote belong. (See Gomme, Village Community.)
Hundred Rolls, Oxford.
Chancery Series, No. 1, m. 3.
§ Tenentes Abbatis { § Robertus le Caus tenet in eadem j. mesuagium et
in eadem. { ij. virgatas terræ de Abbate de Eygn', et reddit
{ per annum dicto Abbati Eygn' iij._s._
§ Hundr' in { § Stephanus le Niwe tenet in eadem j. mesuagium
Aston'. { et ij. virgatas terræ de eodem, et reddit per
{ annum dicto Abbati xv._s._ vij._d._ ob. q.
{ § Robertus de Haddon' tenet in eadem j. mesuagium
{ [et] j virgatam terræ de Domino W. de Valencia,
{ et reddit per annum dicto W. de Valencia j._d._
§ Servi. { § Henricus Toni tenet in eadem j. mesuagium [et]
{ j. virgatam terræ de Abbate de Eygn', et reddit
{ eidem pro redditu iiij._s._ pro opere iiij._s._
{ iiij._d._ ob. q.
{ § Willelmus Toni tenet in eadem j. mesuagium [et]
{ j. virgatam terræ de dicto Abbate, et reddit per
{ annum eidem pro redditu iiij._s._, pro opere
{ iiij._s._ ix._d._ ob. q.
{ § Nicholaus Toni tenet in eadem consimile
{ tenementum de eodem pro consimili servicio
{ faciendo eidem.
{ § Emma Lovel tenet in eadem j. mesuagium et
{ dimidiam virgatam terræ cum v. acras de eodem,
{ et reddit per annum dicto Abbati xj._s._ iij._d._
{ § Johanna Galard tenet in eadem dimidiam virgatam
{ terræ de dono Willelmi fratris sui, et reddit
{ eidem per annum vj._d._; et idem Willelmus tenet
{ de hereditate per defensum antecessorum suorum,
§ Lib[ere] { qui dictam dimidiam virgatam terrae habuerunt
tenentes. { de dono Reg[is], cujus nomen ignoramus.
{ § Thomas Wyteman tenet in eadem j. virgatam terræ
{ de Philippo de Lenethale, et est de confirmatione
{ Reg[is], ut dicta dimidia virgata terræ
{ præscripta; et tenetur de Willelmo Gallard
{ prædicto, et reddit per annum dicto Philippo
{ xij._d._
[The Abbot above mentioned was the Abbot of Eynsham.]
The _Hundr. in Aston_ in the margin can hardly admit of any other
extension but _hundredarius_ or _hundredarii_. It seems then, that the
term is applied to three tenants named first. The reason for thinking so
is, that all these three are assessed at certain rents without any
mention of labour services, whereas the three tenants who are next
mentioned pay so much as rent and so much more in commutation of labour
service, 'pro servitio.' The inference would be, that the names in the
beginning apply to people burdened with suit to the hundred and to the
shire, and therefore exempted in other respects. Their rents are very
unequal, but in any case lower than those of the men immediately
following. One very important feature admits of no dispute; the
hundredors are described as _servi_, that is villains, in opposition to
the free tenants of the Abbot of Eynsham. We know already from the text
that the hundredors, if the name be applied here as in the Ely Surveys,
occupied an intermediate position, and in one sense had certainly to
rank with the villains, people of base tenure belonging to the
townships.
Even a more difficult example is contained in the fragment of the
Warwickshire Hundred Roll. The oft-mentioned description of Stoneleigh
in that document begins of course with the demesne land of the abbot,
then mentions two villains and thirty free cotters holding 'ad terminum
vitae.' Then follows a list of five more free cotters. On the margin
between the two sets we read 'de hundred de Stonle.' To whom does this
phrase apply? There is nothing in the tenure which would enable us to
make a positive distinction between the two sets, and it would seem that
the expression has in view some duties assigned in the roll to the first
thirty tenants in conjunction with the villains. It is written
immediately in front of the following passage: 'Omnes supradicti
cotarii ipsius abbatis debent sectam ad curiam suam bis in anno. Et si
contingat quod aliquis captus sit in dicto manerio debet imprisonari
apud Stanle et tunc omnes villani et cotarii supradicti ipsum servabunt
et in custodia eorum erit dum ibi fuerit sumptibus suis et sumptibus
tocius manerii.'
The uncertainty of terminology is not without its meaning: the word
'hundredarius' did not get into general use, but it was used in several
places for different purposes. It may apply to a bailiff of the hundred,
perhaps to the alderman, to the standing representative of a village at
the hundred court, and possibly to all the free men who had to do
personal suit to this court. It is not in order to impose a uniform
sense upon it, that I have treated of it at this length. But in one of
its meanings, in that which is given by the Ely Surveys, we find a
convenient starting point for discussing the position of an important
and interesting class in which the elements of freedom and servitude
appear curiously mixed.
XII.
See p. 199, n. 1.
It did not occur to the men of the thirteenth century that it would be
important to distinguish between the different modes by which free
tenements had been created. To draw the principal distinction was enough
for all practical purposes. Stray notices occur however that give some
insight into the matter. Very often we find tenements held _per cartam_,
probably because this kind of title was rather exceptional and seemed to
deserve a special mention, while commonly land was held without charter,
on the strength of a ceremonial investiture by the lord. This last mode
does not find uniform expression in the documents, but the implied
opposition to holding by charter is sometimes stated in express terms
which bring out one or the other feature of free land holding.
One of the questions addressed to the jurors--from whose verdicts the
Hundred Rolls were made, was--Si aliquis liber sokemannus de antiquo
dominico alii sokemanno vendiderit vel alio modo alienaverit aliquid
tenendum libere per cartam[870]? The _free_ sokeman's tenure is meant,
although the inquest is taken on ancient demesne soil, and the point is
that none of these persons can alienate by charter, but must use the
ceremonial surrender in the court of ancient demesne according to the
custom of the manor. I have already drawn attention to the remarkable
opposition between free customary tenure and holding by charter. It is
chiefly important because it discloses a traditional element in the
formation of the socman's tenure.
The same traditional element appears in other cases in which the special
position of the socman is not concerned. In Warwickshire a free tenant
by sergeanty is said to hold his land without charter by warrant from
ancient times, and the peculiar obligations of his sergeanty are
described at some length[871]. The charter appears here in contrast with
ancient ownership, to the origin of which no date can be assigned. A
similar case is that of Over, Cambs.[872] Robert de Aula holds two
virgates of the Abbot of Ramsey _de antiquo conquestu_ and seven
virgates _de antiquo_. Further on a certain Robert Mariot is mentioned
holding five virgates of Robert de Aula _de antiquo feffamento_. The
weight falls, in all these expressions, on the _de antiquo_, which may
even appear without any further qualification. Of these qualifications
one is interesting in itself, I mean 'de conquestu.' In the language of
those times it may stand either 1, for conquest in the sense in which
that term is now commonly used, or 2, for purchase, or 3, for
occupation. The first of these meanings is naturally out of the question
in our case. The second does not apply if we take heed how the
expressions interchange: it could be replaced by feoffamentum in the
third instance, and could not have fallen out after de antiquo in the
second. Ancient occupation fits well, and such a construction is
supported by other passages. In Ayllington (Elton), Hunts, e.g., we
find the chief free tenants all, with one exception, holding _de
conquestu_ in contrast with the mesne tenants who are said to hold _per
cartam_. The opposition is again clearly between traditional occupation
and new feoffment settled by written instrument. In Sawtrey Beaumeys, on
the other hand, the mode of holding de conquestu seems exceptional[873].
Another terminological opposition which finds expression in the surveys
is that between men who hold _per homagium_ and those who hold _per
fidelitatem_. It seems to be commonly assumed that free tenements owe
homage, but without disputing the point in a general way I shall call
attention to the description of Kenilworth in the Warwickshire Roll, in
which _libere tenentes_ are said to hold _per fidelitatem et nullum
faciunt homagium_[874]. The deviation must probably be accounted for by
the fact that the castle of Kenilworth was Royal demesne and had been
given to Edmund, the brother of King Edward I; the peculiar condition
described was certainly a species of customary freehold or socman's
tenure.
The upshot is, that we find in the Hundred Rolls traces of freeholds
possessed by ancient tenure, 'without charter and warrant,' according to
customs which came down from the time of the Conquest, or the original
occupation of the land, or from a time beyond memory. The examples given
are stray instances but important nevertheless, because we may well
fancy that in many cases such facts escaped registration. And now how
are all these traces of the 'traditional' element to be expressed in
legal language? From what source did the right of such people flow? How
did they defend it in case it was contested?
The absence of a charter is not by itself a reason to consider this kind
of tenure as separated from the usual freehold. A feoffment might well
be made without a charter[875]. As long as the form of the investiture
by the lord had been kept, it was sufficient to create or to transmit
the free tenancy. But the warranty of the lord and the feoffment were
necessary as a rule. And here we find cases in which there is no
warranty, and the lord is not appealed to as a feoffor. They must be
considered as held by surrender and admittance in court and as being in
this respect like the tenements of the sokemen. I do not see any other
alternative. As to the sokemen we find indeed, that their right is
contrasted with feoffment and at the same time considered as a kind of
free tenancy, that it is defended by manorial writs, and at the same
time well established in custom[876]. But can we say that the warranty
of the lord is less prominent in this case than in the _liberum
tenementum_ created by the usual feudal investiture? Surrender seems to
go even further in the direction of a resumption by the lord of a right
which he has conferred on the dependent. If surrender stood alone, one
would be unable to see in what way this customary procedure could be
taken as an expression of 'communal guarantee.' But the surrender is
coupled with admittance. The action of the steward called upon to
transmit by his rod the possession of a plot of land is indissolubly
connected with the action of the court which has to witness and to
approve the transaction. The suitors of the court in their collective
capacity come very characteristically to the front in the admittance of
the socman, and it is on their communal testimony that the whole
transaction has to rest. The Rolls of Stoneleigh and of King's Ripton
give many a precious hint on this subject[877].
I speak of the socmen in ancient demesne, but there can be no doubt
that originally the different classes of this group called socmen were
constantly confused and treated as one and the same condition. The free
socmen and the base or bond socmen, the population of manors in the
hands of the crown, of those which had passed from the crown to
subjects, and, last but not least, a vast number of small proprietors
who held in chief from the king without belonging to the military class,
and without a clearly settled right to a free tenement--all these were
treated more or less as variations of one main type. What held them
together was the suit owed to some court of a Royal Manor which had
'soke' over them[878]. Ultimately classification became more rigid, and
theoretically more clear; free and socman's tenure were fused into the
one 'socage' tenure, well known to later law, but we must not forget
that Common Law Socage is derived historically from a very special
relation, and that the socman appears even in terminology as distinct
from the 'libere tenens.' I must admit, however, that it is only with
the help of the documents of Saxon times and of the Conquest period,
that it will be possible to establish conclusively the character of the
tenure as that of a 'customary freehold.'
XIII.
See pp. 233, 234.
The passage on which the text of these two pages is based may be found
in a Survey of the Dunstaple Priory. The portion immediately concerned
is inscribed: 'Notulae de terris in Segheho' (ff. 7, 8). The Walter de
Wahull in question is probably the baron of that name (Dugdale, Baron.
I. 504), who joined the rebellion of 1173 along with the Earl of
Leicester, and was made a prisoner (Rad. de Diceto I. 377, 378; Ann.
Dunstapl. 21).
Harl. MS. 1885, f. 7.
§ Tempore conquestus terrae, Dominus de Wahull et Dominus de la Leie
diviserunt inter se feudum de Walhull', widelicet, Dominus de Walhull'
habuit duas partes, et Dominus de la Lee, tertiam, scilicet, unus xx.
milites, et alius x. Volens autem Dominus de Wahull' retinere ad opus
suum totum parcum de Segheho, et totum dominicum de Broccheburg', fecit
metiri tertiam partem in bosco et in plano. Postea, fecit metiri
tantumdem terrae, ad mensuram praedictae tertiae partis, in loco qui
nunc vocatur Nortwde, et in bosco vicino, qui tunc vocabatur Cherlewde;
et abegit omnes rusticos qui in praedicto loco juxta praedictum boscum
manebant. Hiis ita gestis, mensurata est terra de Segheho, et inventae
sunt viii. ydae vilenagiae. De hiis viii. ydis conputata est quarta acra
ad unam summam, et inventa est quod haec summa valebat tertiam partem
parci et dominici. Dedit ergo Dominus de Wahull' Domino de la Leie,
scilicet, Stephano, pro tertia parte quam debuit sortiri in bosco et in
dominico, culturas praedictorum rusticorum, et boscum qui nunc vocabatur
Cherlewd', nunc Nortwd'. Dominus autem de la Leie dedit hanc terram
Bald' militi suo, patri Roberti de Nortwd'. Et inter terram praedictorum
rusticorum habuimus de dono ecclesiae unam acram. Pro hac acra Robertus
pater Gileberti dedit nobis [in] escambium aliam acram quae abutiat ad
Fenmed', et jacet ad vest, juxta terram Nigelli de Chaltun'. De ista
praedicta acra in Nortwd' quae nostra fuit, jacet roda una ad lomputtes,
scilicet, roda capitalis. Alia roda jacet ad uest curiae Roberti
praedicti; quae curia ipsius Roberti primo fuit ad uest, quam post
obitum patris mutavit, transferendo horrea sua de uest usque hest. Tres
gorae jacent pro dimidia acra, et abutiant ex una parte versus viam
quae dicitur via de Nortwd', et ex alia parte versus Edmundum filium
Uctred'. Procedente tempore, tempore guerrae praedictae viii. ydae et
ceterae de Segheho fuerunt occupatae a multis injuste; et ob hoc
recognitio fuit facta coram Waltero de Wahull', et coram Hugone de Leia,
et in plena curia, per vi. senes, et per ipsum Robertum, de hac nostra
acra et de omnibus aliis terris, scilicet, quae acrae ad quas hidas
pertineant: et per hanc recognitionem, restituit nobis Robertus
praedictam acram. Uctredus drengus mansit ad uest de via de Nortwde, et
grangiae ejus fuerunt ex alia parte viae, scilicet, hest.
Tempore quo omnes tenentes de Segheho, scilicet, Milites, liberi
homines, et omnes alii incerti et nescii fuerunt de terris et tenementis
ville, et singuli dicebant alios injuste plus aliis possidere, omnes
communi consilio, coram Dominis de Wahul' et de la Leie, tradiderunt
terras suas per provisum seniorum et per mensuram pertici quasi novus
conquestus dividendas, et unicuique rationabiliter assignandas. Eo
tempore recognovit Radulfus Fretetot quod antecessores sui et ipse
injuste tenuerant placiam quandam sub castello, que placia per
distributores et per perticam mensurata est, et divisa in xvj buttos; et
jacent hii butti ad Fulevell', et abut[tant] sursum ad croftas ville.
Hii butti ita partiti sunt. Octo yde sunt in Segheho de vilenagio:
singulis ydis assignati sunt ii. butti. Ecclesiae vero dotata fuit de
dimidia yda: ad hanc dimidiam ydam assignatus fuit unus buttus: sed
postquam illum primum habuimus, bis seminatus fuit, et non amplius, quia
ceteri omnes non excol[un]t ibi terram, sed ad pascua reservant: un[de]
est, quia locus remotus est, nec pratum habemus nec bladum.
He terre prenominate sunt in campo qui dicitur Hestfeld. Summa, xix acre
et tres rode.
XIV.
See p. 302, n. 1.
Cotton MS. Galba E. X. f. 19.
Hec est firma unius cuiusque uille que reddit plenam firmam duarum
ebdomadarum.
Duodecim quarteria farine ad panem monachorum suorumque hospitum que
singula faciunt quinque treias Ramesie, et unaqueque treia appreciatur
duodecim denariis precium uniuscuiusque quarterii fuit quinque sol.
Summa precii 12 quarteriorum, 60 sol. et 2 millia panum uillarum uel 4
quarteria ad usum seruientium. Precium unius mille dimidiam marcam
argenti. Summa precii integra marca. Ad potum 24 missa de grut quarum
singulas faciunt una treia Ramesii et una ringa. Appreciatur una missa
12 den. Summa precii de brasio 32 sol. sunt et 2 septaria mellis 32 den.
sunt summa precii 5 sol. et 4 den.
Ad compadium 4 libre in denariis et decem pense lardi. Precium unius
pense 5 sol. sunt. Summa precii 5 obol. Et decem pense casei. Precium
unius pense 3 solidi sunt. Summa precii 30 sol. Et decem frenscengie
peroptime. Precium uniuscuiusque sunt 6 den.--Et 14 agni. Agnus pro
denario--Et 120 galline, 6 pro den.--Et 2000 ovorum. Precium unius mille
2 sol. sunt.--Et 2 tine butiri. Precium unius tine 40 den.--Et 2 treie
fabarum. Prec. 1 treie 8 den. sunt. Et 24 misse prebende. Precium unius
misse 8 den.--Summa precii totius supradicte firme 12 libre sunt et 15
sol. et 1 den. exceptis 4 libris supradictis, que solummodo debent dari
in denariis de unaquaque plena firma duarum ebdomadarum. Et postquam hec
omnia reddita fuerunt, firmarius persoluet 5 solidos in denariis, uno
denario minus, et sic implebuntur 17 libre plenae in dica cellerarii et
unum mille de allic sine dica et firmarius dabit present cellerario ter
in anno sine dica.
Villa que reddit firmam plenam unius ebdomade, dimidium omnium
supradictorum reddet. Excepto quod unaqueque villa cuiuslibet firme sit,
uel duarum ebdomadarum, uel unius plene firme, uel unius lente firme,
dabit equaliter ad mandatum pauperum 16 denarios de acra elemosin.
Villa que reddit lente firmam unius ebdomade, omnino sicut plena firma
unius ebdomade reddet. Exceptis quinque pensis lardis et 5 pensis casei
quas non dat set pro eis 40 solidos in denariis et alios 40 sol. sicut
plena firma.
XV.
See p. 344, n. 1.
Ayllington or Elton, Hunts, is remarkable on account of the contrast
between its free and servile holdings, as described in the Hundred
Rolls. It would be interesting to know whether the former are to be
considered as ancient free tenements, or as the outcome of modern
exemptions. The Hundred Rolls point in the first direction (ii. 656).
Some of the tenements under discussion are said to be held de conquestu,
and it would be impossible to put any other interpretation on this term
than that of 'original occupation.' It means the same as the 'de antiquo
conquestu' of other surveys (sup. p. 453).
But when we compare the inquisition published in the Ramsey Cartulary
(Rolls Ser. i. 487 sqq.) we come upon a difficulty. There the holdings
are constantly arranged under the two headings of _virgatae operariae_
and _virgatae positae ad censum_, the population is divided into
_operarii_ and _censuarii_, and in one case we find even the following
passage: 'item quaelibet domus, habens ostium apertum versus vicum, tam
de malmannis, quam de cotmannis et operariis, inveniret unum hominem ad
lovebone, sine cibo domini, praeter Ricardum Pemdome, Henricum Franceys,
Galfridum Blundy, Henricum le Monnier.' And so most of the free people
are actually called _molmen_, and this would seem to imply that they
were _libere tenentes_ only in consequence of commutation.
It seems to me that there is no occasion for such an inference. The
_molmen_ in the passage quoted are evidently the same as the _censuarii_
of other passages, and although, in a general way, the expression _mal_
was probably employed of quit-rents, still it was wide enough to
interchange with _gafol_, and to designate all kinds of rents, without
any regard to their origin. And of course, this is even more the case
with _census_. Upon the whole, I do not see sufficient reason to doubt
that we have freeholders before us who held their land and paid rent
ever since the original occupation of the soil.
INDEX.
Agreement as the origin of free tenure, 335;
between lord and village, 359.
Akerman, 147.
Amercement, 163.
Ancient conquest, 453.
Ancient demesne, definition, 89, 90;
privileges, 92;
tenantry, 114;
Saxon origin, 123, 136;
courts, 379.
Ancient freehold, 344, 352.
Anelipeman, 213.
Approvement, 273.
Assarts, 332.
Assessment, 244.
Assisa terra, 333.
Aston and Cote, Oxon, 392, 450.
Astrier, 56.
Auxilium, 293.
Averagium, 285, 286, 309.
Aver-earth, 280.
Aver-land, 257.
Ayllington (Elton), Hunts, 337, 460.
Bailiff, 318.
Balk, 232.
Barlick-silver, 291.
Beadle, 318.
Ben-earth, 281.
Birth, influence on status, 59.
Blackstone, view of English history, 7;
on copyholds, 80;
on ancient demesne tenure, 112.
Board-lands, 314.
Bockyng, Essex, 315.
Bondus, 145.
Boonwork, 174.
Borda, 256.
Bordarius, 145, 149.
Borough English, 82, 157, 185.
Bosing-silver, 291.
Bovati, 238.
Bracton, on villainage, 47;
on status, 60;
on convention between villain and lord, 71;
on waynage, 74;
on villain tenure and villain services, 77;
on villain socage, 89, 115, 121;
on rights of common, 269.
Braseum, 289.
Britton, on prescription, 63;
on the prohibition against devising villains, 76;
on privileged villainage, 109.
Butta, 232.
Campus, 228.
Carriage duties, 285.
Carta, 199, 452.
Carucarius, 147.
Censuarius, 186.
Ceorls, Palgrave on, 14;
connexion with villains, 135;
history of the term, 149.
Chevagium, 157.
Churchscot, 295.
Common, of pasture, 263;
appendant and appurtenant, 265;
intrinsec and forinsec, 270;
of wood, 275.
Communal liability, 357.
Communitas villanorum, 359.
Commutation, 179, 307.
Conquest, Norman, 123, 130, 133, 135
Conquest, Saxon, Palgrave on, 13;
Kemble on, 18;
Freeman on, 22;
Seebohm on, 34.
Conveyancing, 216, 371.
Copyhold, 80, 115, 216, 310.
Cornage, 295.
Cornbote, 289.
Costeseye, Norfolk, 435.
Cotland, 256.
Cottarius, cotsetle, cottagiarius, 148.
Court Baron, 365.
Court leet, 362.
Court of ancient demesne, 378.
Court roll, 173, 374.
Criminal law, 64.
Curia, plena curia, 375, 377.
Custom, 172, 174, 181, 213, 297.
Custumarius, consuetudinarius, 146, 170.
Day-work, 288.
Defence, 260.
Demesne, 223, 313;
free tenements carved out of it, 327;
its development, 406.
Denerata, 257.
Dialogus de Scaccario, on villainage, 44;
on Englishry, 64;
on the Conquest, 121, 122.
Domesday Survey of Kent, 205;
on classes, 209.
Donum, 293.
Election of manorial officers, 355.
Elton, C.I., on ancient demesne tenure, 112;
on shifting ownership of arable, 236.
Ely Surveys, 441.
Emphyteusis, 333.
Enfranchisement, by feoffment, 70;
modes of manumission, 86;
by convention, 183;
as gradual emancipation, 184, 214.
Essartum, 332.
Exemption from labour, 296, 322.
Extraneus, 142.
Fald-silver, 291.
Farm, feorm, 301, 459.
Fastnyng-seed, 282.
Fealty, 164, 454.
Feoffment, 347, 455.
Ferdel, 256.
Ferlingsetus, 148.
Festuca, 372.
Feudalism, Kemble on, 20;
influence on villainage, 131;
oppression, 204.
Field systems, 224.
Filstnerthe, Filsingerthe, 282.
Firmarius, 305.
Fish-silver, 291.
Fleta on the hide, 241.
Fleyland, 170.
Foddercorn, 288.
Food-rents, 304.
Forinsecus, 142.
Forland, 332.
Frank pledge, villains in, 66, 418;
and leet, 363.
Free bench, 160.
Freeman, Edw., 22.
French Revolution, 10.
Fustel de Coulanges, 17, 32.
Gafol, 184, 187.
Gafol-earth, 280.
Gathercorn, 289.
Gavelkind, 207.
Gavelman, 187.
Gavelseed, 288.
Gebur, 145.
Geneat, 145.
Gersumarius, 147.
Gild, 293.
Glanville, on status, 59;
on manumission, 87.
Gneist, R., 24.
Godlesebene, 282.
Gomme, on early folk-mots, 367.
Gora, 231.
Grass-earth, 280.
Hale, Archdeacon, on the farm system, 305.
Halimote, 364, 370.
Hallam, his work on the Middle Ages, 11;
on villainage, 48.
Hand-dainae, 288.
Havering atte Bower, Essex, 108, 436.
Headland, 232.
Heriot, 159.
Hidage, 294.
Hide, 239, 241, 244;
Kemble on, 19.
Hidarius, 147.
Hitchin, Herts, 394.
Holding, 238, 241, 249, 263, 300;
origin, 401.
Homagium, 455.
Hundred, 67, 192, 445.
Hundredarius, 188, 194, 441, 450.
Hundred Rolls, on merchet, 154;
on free tenements, 336.
Huntenegeld, 292.
Husfelds, 314.
Inheritance, 246.
Inhoc, 226.
Inland, 328.
Intermixture of strips, 234, 254, 317.
Jugum, 248, 309.
Juratores curiae, 376.
Kemble, 18.
Kentish custom, 205, 248.
King's Ripton, Hunts, 93, 106, 110, 383.
Labourers, hired, 321.
Lammas-meadow, 260.
Landchere, 290.
Landgafol, 292.
Landsettus, 146.
Leases, of demesne land, 329;
for life and term of years, 330.
Legal theory, 44, 127.
Lentenearth, 282.
Levingman, 213.
Liberaciones, liberaturae, 176, 322.
Liber homo, 140;
as suitor of halimote, 389.
Libere tenens, 140, 169, 178, 311;
customary freeholder, 220, 456;
as overseer of labour, 368, 407;
subjected to the manorial arrangement, 325;
forinsecus, 327;
as suitor of halimote, 386.
Linch, 232.
Littleton, on villains regardant and in gross, 49.
Lodland, 257.
Lord, origin of his rights, 151;
amercements, 163;
control over villain land, will and pleasure, 212, 297;
as owner of the waste, 272;
equity, 384;
growth of his power, 404.
Lundinarium, 256.
Lurard, 319.
Maine, Sir Henry, 28.
Maitland, F.W., on John Fitz Geoffrey's case, 98;
on hundred and county courts, 189, 192;
on the leet, 362;
on the division of manorial courts, 364;
on manorial presentments, 371;
on court of honor, 390;
on the manor, 395.
Mal, 184, 187.
Malt-silver, 291.
Manor, Blackstone's theory, 8, 9;
influence on status, 57, 61, 85;
general organisation, 223;
husbandry, 316;
in relation to the township, 394;
its elements, 405.
Manuoperationes, 287.
Mark, 19.
Marriage, 62, 139.
Martin of Bertenover _v._ John Montacute, 78.
Maurer, G.F. von, 26.
Maurer, Konrad, 21.
Meadows, 259.
Mederipe, 283.
Men of Halvergate _v._ Roger Bigod, earl of Norfolk, 431.
Men of King's Ripton _v._ Abbot of Ramsey, 110, 425.
Men of Tavistock _v._ Henry of Tracy, 119.
Men of Wycle _v._ Mauger le Vavasseur, 102, 111.
Merchet, 82, 153, 202.
Messarius, messor, 319.
Ministeriales, 319, 323, 406.
Mirror of justice, 415.
Molland, 183.
Molmen, 183.
Mondayland, 256.
Monopolies, manorial, 163.
Monstraverunt, writ of, 101, 104, 108, 110, 116.
Nasse, E., 26.
Nativus, 45, 142, 440.
Neat, niet, 144.
Ne injuste vexes, writ of, 420.
Nook, 256.
Note-book of Bracton, on conventions of lord with villain, 73;
on Martin of Bestenover's case, 79;
on manumission, 88;
on the Tavistock case, 119.
Nummata, 257.
Oath of fealty, 164.
Open field systems, 225, 237;
Nasse on, 27;
Seebohm on, 231;
origin, 399.
Operarius, 146.
Palgrave, Sir Francis, 12.
Pannage, 291.
Parvum breve de recto, 94, 100.
Pasture, 261.
Pedigree of villains, 440.
Pell, O., on acrewara, 242.
Penyearth, 282.
Petitions to the King, 102.
Ploughing work, 278.
Plough team, 238, 252.
Police, in relation to villainage, 66, 139.
Pollock, Sir Frederic, on conventions with villains, 72.
Precariae, 281, 284, 308.
Prepositus, 318.
Prescription, 63.
Presentments in the halimote, 368.
Prior of Hospitalers _v._ Ralph Crips and Thomas Barentyn, 54, 412.
Prior of Ripley _v._ Thomas Fitz-Adam, 83.
Prohibition against selling animals, 156.
Quare ejecit infra terminum, writ of, 330.
Quit-rent, 291.
Quo jure, writ of, 265, 270.
Radacre, 282.
Reaping work, 283.
Recognition, 348.
Reeveship, 157.
Regular arrangement, of villain holdings, 334, 345;
of free holdings, 337;
of socmen's holdings, 349.
Relief, 162.
Remuneration of servants, 321.
Rent, 181, 188, 215;
trifling, 290;
of free tenants, 342.
Revision of procedure, 99.
Rofliesland, 334.
Roger Fitz William _v._ Abbot of Bury St. Edmunds, 422.
Rogers, J. Thorold, on legal theory, 44;
on manorial documents, 138.
Roman influence, Palgrave's view, 14;
French scholars, 16;
Seebohm, 33.
Rotation of crops, 230.
Royal jurisdiction, 219.
Scrutton, T.E., 266.
Scutage, 294.
Scythepenny, 291.
Seebohm, F., 32.
Segheho, Beds, 233, 457.
Self-government, communal, 355, 361.
Selio, 231.
Seneschal, 318.
Sequela, 300.
Serfdom, 43, 152.
Serland, 257.
Servientes, 320.
Services, implying villainage, 82;
uncertain, 83;
certain on ancient demesne, 110;
labour, 167, 215, 305.
Servus, 45, 141.
Shareholding, 340, 347.
Sixteen of Aston and Cote, 393.
Slavery, 43, 47.
Socagium ad placitum, 334.
Sockemanemot, 365.
Soke, 391.
Socmen, free, 196, 204, 456;
on ancient demesne, 113, 197, 456;
villain, 89, 91, 199;
nature of tenure, 113, 116.
Solanda, 255.
Status, 83.
Statute of labourers, 54, 412.
Statute of Merton, 273.
Statute of Westminster II, 273, 274.
Steward, 318, 354.
Stoneleigh Abbey, 91, 93, 105, 116, 381, 426.
Stubbs, W., 23.
Suitors of halimote, 370;
in ancient demesne court, 380;
free, 386.
Sulung, 247.
Surrender and admittance, 371, 455.
Symon of Paris _v._ H. bailiff of Sir R. Tonny, 411.
Tallage, 163.
Tenmanland, tunmanland, 255.
Teutonic influence, Palgrave on, 13;
German scholars, 17;
Kemble, 19;
Freeman, 22;
Stubbs, 23;
Gneist, 24.
Township, 394.
Turnbedellus, 329.
Tywe, 282.
Undersette, 213.
Unlawenearth, 282.
Vagiator, 319.
Village community, Nasse on, 27;
Maine, 28;
Seebohm, 33;
acting in the interest of the lord, 355;
acting independently of the lord, 357;
as a farmer, 360;
its relation to the manor, 404.
Villain, sold, 151;
opposed to serf, 419;
civil disabilities, 67, 159,166;
free as to third persons, 68;
convention with the lord, 70, 182;
waynage, 74, 420;
not to be devised, 76;
claimed by kinship, 84, 417;
on ancient demesne, 114;
in manorial documents, 140, 150.
Villainage, definitions, 44;
exception of, 46;
in gross and regardant, 48, 411, 413.
Villain tenure, 77, 165;
free man holding in villainage, 80, 81, 143;
held by labour services, 167.
Virga, 173, 372.
Virgata, virgatarius, 148, 238.
Walter of Henley, on field systems, 225;
on the hide, 241.
Wara, 242.
Ward-penny, 291.
Waynage, 74, 420.
Week-work, 280.
William Fitz Henry _v._ Bartholomew Fitz Eustace, 80.
William Fitz Robert _v._ John Cheltewynd, 421.
William Taylor _v._ Roger of Sufford, 73.
Wista, 255.
Wood-penny, 291.
Workman, 186.
Wye, Kent, 309.
Yerdling, 148.
York Powell, F., on manumission, 87.
FOOTNOTES:
[1] Miss Lamond's edition of Walter of Henley did not appear until the
greater part of my book was in type. I had studied the work in MS. So
also I studied the Cartulary of Battle Abbey in MS. without being aware
that it had been edited by Mr. Scargill Bird. Had Mr. Gomme's Village
Communities come to my hands at an earlier date I should have made more
references to it.
[2] English Historical Review, No. 1.
[3] In his Considérations sur l'histoire de France.
[4] History of Boroughs.
[5] Ancient Rights of the Commons of England.
[6] Quoted by Palgrave, English Commonwealth, i. 192, from the second
edition of 1786. The first appeared in 1784.
[7] The first edition of the Commentaries appeared in 1765. I have been
using that of 1800.
[8] 'Es war eine Zeit, in der wir Unerhörtes und Unglaubliches erlebten,
eine Zeit, welche die Aufmerksamkeit auf viele vergessene und abgelebte
Ordnungen durch deren Zusammensturz hinzog.' Niebuhr in the preface to
the first volume of his Roman history, quoted by Wegele, Geschichte der
deutschen Historiographie, 998.
[9] Enquiry into the Rise and Progress of the Royal Prerogative, 1831.
[10] History of the English Commonwealth, 1832; Normandy and England,
1840.
[11] I do not give an analysis of Hallam's remarkable chapters on
England in his work on the Middle Ages (first edition, 1818), because
they are mostly concerned with Constitutional history, and the notes on
the classes of Saxon and Anglo-Norman Society are chiefly valuable as
discussions of technical points of law. Hallam's general position in
historical literature must not be underrated; he is the English
representative of the school which had Guizot for its most brilliant
exponent on the Continent. In our subject, however, the turning-point in
the development of research is marked by Palgrave, and not by Hallam.
Heywood (Dissertation on Ranks and Classes of Society, 1818) is sound
and useful, but cannot rank among the leaders.
[12] Histoire de la conquête de l'Angleterre par les Normands.
[13] Histoire du tiers état.
[14] Histoire du droit municipal.
[15] Prolégomènes au polyptyque de l'abbé Irminon.
[16] Histoire des institutions de la France; Recherches sur quelques
problèmes d'histoire.
[17] Gregor von Tours und seine Zeit.
[18] Deutsche Verfassungsgeschichte.
[19] Geschichte des Beneficialwesens, 1856; Feudalität und
Unterthanenverband, 1863.
[20] Roth is very strong on this point.
[21] Ueber angelsächsische Rechtsverhältnisse, in the Munich Kritische
Ueberschau, i. sqq. (1853).
[22] K. Maurer is very near Waitz in this respect.
[23] See especially his Englische Verfassungsgeschichte.
[24] Einleitung in die Geschichte der Hof-, Dorf-, Mark- und
Städteverfassung in Deutschland, 1 vol.; Geschichte der Frohnhöfe, 4
vol.; Geschichte der Dorfverfassung, 1 vol.; Geschichte der
Markenverfassung, 1 vol.; Geschichte der Städteverfassung, 4 vol.
[25] Collected in 2 volumes of Agrarhistorische Untersuchungen.
[26] Zur Geschichte der mittelalterlichen Feldgemeinschaft in England,
1869.
[27] I do not mention some well-known books treating of medieval
husbandry and social history, because I am immediately concerned only
with those works which discuss the formation of the medieval system.
Thorold Rogers, History of Agriculture and Prices, and Six Centuries of
Work and Wages, begins with the close of the thirteenth century, and the
passage from medieval organisation to modern times. Ochenkovsky, Die
wirtschaftliche Entwicklung Englands am Ende des Mittelalters, and
Kovalevsky, England's Social Organisation at the close of the Middle
Ages (Russian), start on their inquiry from even a later period.
[28] Is it necessary to say that I am speaking of general currents of
thought and not of the position of a man at the polling booth? An author
may be personally a liberal and still his work may connect itself with a
stream of opinion which is not in favour of liberalism. Again, one and
the same man may fall in with different movements in different parts of
his career. Actual life throws a peculiar light on the past: certain
questions are placed prominently in view and certain others are thrown
into the shade by it, so that the individual worker has to find his path
within relatively narrow limits.
[29] The last great German work on our questions, Lamprecht, Deutsches
Wirthschaftsleben im Mittelalter, is nearer Maurer than Sternegg.
[30] Thorold Rogers, History of Agriculture and Prices, i. 70; Six
Centuries of Work and Wages, 44. Cf. Chandler, Five Court Rolls of Great
Cressingham in the county of Norfolk, 1885, pp. viii, ix.
[31] Stubbs, Seventeen Lectures, 304, 305; Maitland, Introduction to the
Note-book of Bracton, 4 sqq.
[32] Dial. de Scacc. ii. 10 (Select Charters, p. 222). Cf. i. 10; p.
192.
[33] Glanville, v. 5; Bracton, 4, 5; Fleta, i. 2; Britton, ed. Nichols,
i. 194.
[34] Bracton, 5; Britton, i, 197. Pollock, Land-laws, App. C, is quite
right as to the fundamental distinction between status and tenure, but
he goes too far, I think, in trying to trace the steps by which names
originally applying to different things got confused in the terminology
of the Common Law. Annotators sometimes indulged in distinctions which
contradict each other and give us no help as to the law. The same
Cambridge MS. from which Nichols gives an explanation of _servus_,
_nativus_, and _villanus_ (i. 195) has a different etymology in a
marginal note to Bracton. 'Nativus dicitur a nativitate--quasi in
servitute natus, villanus dicitur a villa, quasi faciens villanas
consuetudines racione tenementi, vel sicut ille qui se recognoscit ad
villanum in curia quae recordum habet, servus vero dicitur a servando
quasi per captivitatem, per vim et injustam detentionem villanus captus
et detentus contra mores et consuetudines juris naturalis' (Cambr.
Univers. MSS. Dd. vii. 6. I have the reference from my friend F.W.
Maitland).
[35] Placita Coram Rege, Easter, 14 Edw. I, m. 9: 'Willelmus Barantyn et
Radulfus attachiati fuerunt ad respondendum Agneti de Chalgraue de
placito quare in ipsam Agnetem apud Chalgraue insultum fecerunt et ipsam
verberaverunt, vulneraverunt et male tractaverunt, et bona et catalla
sua in domibus ipsius Agnetis apud Chalgraue scilicet ordeum et avenam,
argentum, archas et alia bona ad valenciam quadraginta solidorum
ceperunt et asportaverunt; et ipsam Agnetem effugaverunt de uno mesuagio
et dimidia virgata terre de quibus fuit in seysina per predictum
Willelmum que fuerunt de antiquo dominico per longum tempus; nec
permiserunt ipsam Agnetem morari in predicta villa de Chalgraue; et
eciam quandam sororem ipsius Agnetis eo quod ipsa soror eam hospitavit
per duas noctes de domibus suis eiecit, terra et catalla sua abstulit.
Et predicti Willelmus et Radulfus veniunt. Et quo ad insultacionem et
verberacionem dicunt quod non sunt inde culpabiles. Et quo ad hoc quod
ipsa Agnes dicit quod ipsam eiecerunt de domibus et terris suis, dicunt
quod predicta Agnes est natiua ipsius Willelmi et tenuit predicta
tenementa in villenagio ad voluntatem ipsius Willelmi propter quod bene
licebat eidem Willelmo ipsam de predicto tenemento ammouere.--Juratores
dicunt ... quod predicta tenementa sunt villenagium predicti Willelmi
de Barentyn et quod predicta Agnes tenuit eadem tenementa ad voluntatem
ipsius Willelmi.' Cf. Y.B. 12/13 Edw. III (ed. Pike), p. 233 sqq., 'or
vous savez bien qe par ley de terre tout ceo qe le vileyn ad si est a
soun seignour;' 229 sqq., 'qar cest sa terre demene, et il les puet
ouster a sa volunte demene.'
[36] Coram Rege, Mich., 3 4 Edw. I, m. 1: 'Ricardus de Assheburnham
summonitus fuit ad respondendum Petro de Attebuckhole et Johanni de
eadem de placito quare, cum ipsi teneant quasdam terras et tenementa de
predicto Ricardo in Hasseburnham ac ipsi parati sunt ad faciendum ei
consuetudines et servicia que antecessores sui terras et tenementa illa
tenentes facere consueverint, predictus Ricardus diversas commoditates
quam ipsi tam in boscis ipsius Ricardi quam in aliis locis habere
consueverint eisdem subtrahens ipsos ad intollerabiles servitutes et
consuetudines faciendas taliter compellit quod ex sua duricia mendicare
coguntur. Et unde queruntur quod, cum teneant tenementa sua per certas
consuetudines et certa servicia, et cum percipere consueverunt boscum ad
focum et materiam de bosco crescente in propriis terris suis, predictus
Ricardus ipsos non permittit aliquid in boscis suis capere et eciam
capit aueria sua et non permittit eos terram suam colere.--Ricardus
dicit, quod non debet eis ad aliquam accionem respondere nisi questi
essent de vita vel membris vel de iniuria facta corpori suo. Dicit eciam
quod nativi sui sunt, et quod omnes antecessores sui nativi fuerunt
antecessorum suorum et in villenagio suo manentes.'
[37] Note-book of Bracton, pl. 1237: 'dominus Rex non vult se de eis
intromittere.'
[38] It occurs in the oldest extant Plea Roll, 6 Ric. I; Rot. Cur.
Regis, ed. Palgrave, p. 84: 'Thomas venit et dicit quod ipsa fuit
uxorata cuidam Turkillo, qui habuit duos filios qui clamabant libertatem
tenementi sui in curia domini Regis ... et quod ibi dirationavit eos
esse villanos suos, et non defendit disseisinam ... Et ipsi Elilda et
Ricardus defendunt vilenagium et ponunt se super juratam,' etc.
[39] Maitland, Select Pleas of the Crown (Selden Soc. I), pl. 3:
'Quendam nativum suum quem habuit in vinculis eo quod voluit fugere.'
Bract. Notebook, pl. 1041: 'Petrus de Herefordia attachiatus fuit ad
respondendum R. fil. Th. quare ipse cepit Ricardum et eum imprisonauit
et coegit ad redempcionem 1 marce. Et Petrus venit alias et defendit
capcionem et imprisonacionem set dicit quod villanus fuit,' etc.
It must be noted, however, that in such cases it was difficult to draw
the line as to the amount of bodily injury allowed by the law, and
therefore the King's courts were much more free to interfere. In the
trial quoted on p. 45, note 2, the defendants distinguish carefully
between the accusation and the civil suit. They plead 'not guilty' as to
the former. And so Bishop Stubbs' conjecture as to the 'rusticus
verberatus' in Pipe Roll, 31 Henry I, p. 55 (Constit. Hist. i. 487),
seems quite appropriate. The case is a very early one, and may testify
to the better condition of the peasantry in the first half of the
twelfth century.
[40] As to the actual treatment experienced by the peasants at the hands
of their feudal masters, see a picturesque case in Maitland's Select
Pleas of the Crown (Selden Soc.), 203.
[41] Stubbs, Constitutional History, ii. 652, 654; Freeman, Norman
Conquest, v. 477; Digby, Introduction to the Law of Real Property, 244.
[42] Sir Thomas Smith, The Commonwealth of England, ed. 1609, p. 123,
shows that the notion of two classes corresponding to the Roman _servus_
and the Roman _adscriptus glebae_ had taken root firmly about the middle
of the sixteenth century. 'Villeins in gross, as ye would say
immediately bond to the person and his heirs.... (The adscripti) were not
bond to the person but to the mannor or place, and did follow him who
had the mannors, and in our law are called villains regardants (sic),
for because they be as members or belonging to the mannor or place.
Neither of the one sort nor of the other have we any number in England.
And of the first I never knew any in the Realme in my time. Of the
second so fewe there bee, that it is not almost worth the speaking, but
our law doth acknowledge them in both these sorts.'
[43] Section 182 is not quite consistent with such an exposition, but I
do not think there can be any doubt as to the general doctrine.
[44] I need not say that the work done by Mr. Horwood, and especially by
Mr. Pike, for the Rolls' Series quite fulfil the requirements of
students. But in comparison with it the old Year Books in Rastall's, and
even more so in Maynard's edition, appear only the more wretchedly
misprinted.
[45] For instance, Liber Assisarum, ann. 44, pl. 4 (f. 283): 'Quil fuit
son villein et il seisi de luy come de son villein come regardant a son
maneir de B. en la Counte de Dorset.'
[46] Y.B. Hil. 5 Edw. II: 'Iohan de Rose port son [ne] vexes vers Labbe
de Seint Bennet de Holme, et il counta qil luy travaille, etc., e luy
demande.' _Migg._: 'defent tort et force, ou et quant il devera et dit
qil fuist le vilein Labbe, per qi il ne deveroit estre resceve.'
_Devom._: 'il covient qe vous disez plus qe vous estes seisi, ut supra,'
etc. _Migg._: 'il est nostre vileyn, et nous seisi de luy come de nostre
vileyn.' _Ber._: 'Coment seisi come,' etc.? _Migg._: 'de luy et de ces
auncestres come de nos vileynes, en fesant de luy nostre provost en
prenant de luy rechate de char et de saunk et redemption pur fille et
fitz marier de luy et de ces auncestres et a tailler haut et bas a
nostre volente, prest,' etc. (Les reports des cases del Roy Edward le
II. London, 1678; f. 157.)
[47] I do not think it ever came into any one's mind to look at the Plea
Rolls in this matter. Even Hargrave, when preparing his famous argument
in Somersett's case, carried his search no further than the Year Books
then in print. And in consequence he just missed the true solution. He
says (Howell's State Trials, xx. 42, 43),'As to the villeins in gross
the cases relative to them are very few; and I am inclined to think that
there never was any great number of them in England.... However, after a
long search, I do find places in the Year Books where the form of
alledging villenage in gross is expressed, not in full terms, but in a
general way; and in all the cases I have yet seen, the villenage is
alledged in the ancestors of the person against whom it was pleaded.'
And he quotes 1 Edw. II, 4; 5 Edw. II, 157 (corr. for 15); 7 Edw. II,
242, and 11 Edw. II, 344. But all these cases are of Edward II's time,
and instead of being exceptional give the normal form of pleading as it
was used up to the second quarter of the fourteenth century. They looked
exceptional to Hargrave only because he restricted his search to the
later Year Books, and did not take up the Plea Rolls. By admitting the
cases quoted to indicate villainage in gross, he in fact admitted that
there were only villains in gross before 1350 or thereabouts, or rather
that all villains were alike before this time, and no such thing as the
difference between _in gross_ and _regardant_ existed. I give in App. I
the report of the interesting case quoted from 1 Edw. II.
[48] Y.B. 32/33 Edw. I (Horwood), p. 57: 'Quant un home est seisi de son
vilein, issi qil est reseant dans son vilenage.' Fitzherbert, Abr. Vill.
3 (39 Edw. III): '... villeins sunt appendant as maners qe sount auncien
demesne.' On the other hand, 'regardant' is used quite independently of
villainage. Y.B. 12/13 Edw. III (Pike), p. 133: 'come services
regardaunts al manoir de H.'
[49] Y.B. Hil. 14 Edw. II, f. 417: 'R. est bailli ... del manoir de
Clifton ... deins quel manoir cesti J. est villein.'
[50] See App. I and II.
[51] Y.B. Trin. 9 Edw. II, f. 294: 'Le manoir de H. fuit en ascun temps
en la seisine Hubert nostre ael, a quel manoir cest vileyn est
regardant.'
[52] Y.B. Trin. 29 Edw. III, f. 41. For the report of this case and the
corresponding entry in the Common Pleas Roll, see Appendix II.
[53] Cf. Annals of Dunstaple, Ann. Mon. iii. 371: 'Quia astrarius eius
fuit,' in the sense of a person living on one's land.
[54] Bracton, f. 267, b.
[55] Bract. Note-book, pl. 230, 951, 988. Cf. Spelman, Gloss. v.
astrarius. Kentish Custumal, Statutes of the Realm, i. 224. Fleta has it
once in the sense of the Anglo-Saxon heorð-fæst, i. cap. 47, § 10 (f.
62).
[56] Bracton, f. 190.
[57] Littleton, sect. 187. Cf. Fortescue, 'De laudibus legum Angliae,'
c. 42.
[58] Littleton, sect. 188.
[59] Bracton, ff. 5, 193, b.
[60] I need not say that there were very notable variations in the
history of the Roman rule itself (cf. for instance, Puchta,
Institutionen, § 211), but these do not concern us, as we are taking the
Roman doctrine as broadly as it was taken by medieval lawyers.
[61] Mater certa est. Gai. Inst. i. 82.
[62] See Fitz. Abr. Villenage, pl. 5 (43 Edw. III): 'Ou il allege
bastardise pur ceo qe si son auncestor fuit bastard il ne puit estre
villein, sinon par connusance.' There was a special reason for turning
the tables in favour of bastardy, which is hinted at in this case. The
bastard's parents could not be produced against a bastard. He had no
father, and his mother would be no proof against him because she was a
woman [Fitz. Abr. Vill. 37 (13 Edw. I), Par ce qe la feme ne puit estre
admise pur prove par lour fraylte et ausi cest qi est demaunde est pluiz
digne person qe un feme]. It followed strictly that he could be a
villain by confession, but not by birth. The fact is a good instance of
the insoluble contradictions in which feudal law sometimes involved
itself.
[63] Bracton, f. 5: 'Servus ratione qui se copulaverit villanae in
villenagio constitutae.' Bract. Note-book, 1839: 'Juratores dicunt quod
predictus Aluredus habuit duos fratres Hugonem [medium] medio tempore
natum et Gilibertum postnatum qui nunc petit, set Hugo cepit quamdam
terram in uillenagio et duxit uxorem [uillanam] et in uillenagio illo
procreauit quemdam filium qui ad huc superest.... Et bene dicunt quod
... iste Gilibertus propinquior heres eius est, ea racione quod filius
Hugonis genitus fuit in uillenagio.'
[64] Y.B. 30/31 Edw. I, p. 167 sqq.: 'Usage de Cornwall est cecy qe la
ou neyfe deyt estre marier hors de maner ou ele est reseant, qe ele
trovera seurte ... de revenir a son _ny_ ov ses chateux apres la mort de
son baroun.' Bracton, f. 26, 'Quasi avis in nido.'
[65] Bract. Note-book, pl. 702: 'Nota quod libera femina maritata
uillano non recuperat partem alicuius hereditatis quamdiu uillanus
uixerit.'
[66] Bract. Note-book, pl. 1837: 'Nota quod mulier que est libera uel in
statu libero saltem ad minus non debet disseisiri quin recuperare possit
per assisam quamuis nupta fuerit uillano set hereditatem petere non
poterit.' Bract. Note-book, pl. 1010: 'Et uillani mori poterunt per quod
predicte sorores petere possint ius suum.' Fitzherb. Villen. 27 (P. 7
Edw. II.): 'Les femmes sont sans recouverie _vers le seignior_ uiuant
leur barons pur ce que ils sont villens.' Cf. Bracton, f. 202.
[67] Another instance of the influence of marriage on the condition of
contracting parties is afforded by the enfranchisement of the wife in
certain cases. The common law was, however, by no means settled as to
this point. Y.B. 30/31 Edw. I, p. 167 sqq.: 'La ou le seygnur espouse sa
neyfe, si est enfranchi pur toz jurs; secus est la ou un homme estrange
ly espose, qe donk nest ele enfraunchi si non vivant son baroun, et post
mortem viri redit ad pristinum statum.' Fitzherb. Vill. 21 (P. 33 Edw.
III): 'Si home espouse femme qe est son villein el est franke durant les
espousailles. Mes quand son baron est mort el est in statu quo prius, et
issint el puis estre villein a son fils demesne.' It is quite likely
that gentlemen sometimes got into a state of moral bondage to their own
bondwomen, and were even led to marriage in a few instances, but the law
had not much to feed upon in this direction, I imagine.
[68] Fitzherbert, Vill. 24 (H. 50 Edw. III; P. 40 Edw. III, 17): 'Si
home demurt en terre tenue en villenage de temps dount, etc., il sera
villen, et est bon prescripcion et encountre tel prescripcion est bon
ple a dire qe son pere ou ayle fuit adventiffe,' etc. I suppose _ayle_
here to be a simple error for _ayl_ or _ael_, grandfather.
[69] Cambridge Univ., Dd. vij. 6, f. 231: 'Nota de tempore quo servus
dicere poterit quia fecerit consuetudines villanas racione tenementi non
racione persone. Et sciendum, quod quamdiu servus poterit verificare
stipitem suam liberam non dicitur nativus, set quam citius dominus
dicere poterit villicus noster est ex auo et tritauo, tunc primo desinit
gaudere replicacione omnimoda et privilegio libertatis racione stipitis,
ut si A. primo ingressus villenagium tenuerit de F. per villana
servitia, deinde B. filius A., deinde C. filius B., deinde D. filius C.,
et sic tenuerint in villenagium de gradu in gradum usque ad quartum
gradum de F. et heredibus suis, ille uillanus inuentus in quinto gradu
descendente natiuus dicitur.' I am indebted for this passage to the
kindness of Prof. Maitland.
[70] Britton, i. 196, 206.
[71] Hale, Pleas of the Crown (ed. 1736), ii. 298, gives an interesting
record from Edward I's reign, which shows that even the general theory
was doubtful.
[72] Dial. de Scacc. i. 10. p. 193: 'Ea propter pene quicumque sic hodie
occisus reperitur, ut murdrum punitur, exceptis his quibus certa sunt ut
diximus servilis condicionis indicia.' On the other hand the Dialogus
lays stress on the fact, that if a villain's chattels get confiscated
they go to the king and not to the lord (ii. 10. p. 222), but this is
regarded as a breach of a general principle.
[73] Glanville, xiv. 1: 'Per ferrum callidum si fuerit homo liber, per
aquam si fuerit rusticus.'
[74] Lighter offences committed by the lord could not give rise to
prosecution, but the _persona standi in iudicio_ was admitted in a
general way even in this case. A curious illustration of the different
footing of villains in civil and criminal cases is afforded by a trial
of Richard I's time. Richard of Waure brings an appeal against his man
and reeve, Robert Thistleful, for conspiring with his enemies against
his person. He offers to prove it against him, 'ut dominus, vel ut homo
maimatus, sicut curia consideraverit.' Reeves were mostly villains, and
the duty of serving as a reeve was considered as a characteristic of
base condition. The lord probably goes to the King's court because he
wants his man subjected to more severe punishment than he could inflict
on him by his own power. (Rot. Cur. Regis Ricardi, 60.)
[75] The lord had power over their property, but against everybody else
they were protected by the criminal law.
[76] Sometimes the system is used so as to enforce servitude. See Court
Rolls of Ramsey Abbey. Augmentation Court Rolls, Edw. I, Portf. 34, No.
46, m. 1 d. (Aylington): 'Adhuc dicunt quod Johannes filius Ricardi
Dunning est tannator et manet apud Heyham, set dat per annum pro
recognicione duos capones. Et quia potens est et habet multa bona,
preceptum fuit Hugoni Achard et eius decennae ad ultimum visum ad
habendum ipsum ad istam curiam, et non habuit. Ideo ipse et decenna sua
in misericordia.' (This case is now being printed in Selden Soc. vol.
ii. p. 64.)
[77] Bracton, 124 b: 'Quia omnis homo siue liber siue seruus, aut est
aut debet esse in franco plegio aut de alicuius manupastu, nisi sit
aliquis itinerans de loco in locum, qui non plus se teneat ad unum quam
ad alium, vel quid habeat quod sufficiat pro franco plegio, sicut
dignitatem vel ordinem vel liberum tenementum, vel in civitatem rem
immobilem.' Nichols, Britton, i. 181, gives a note from Cambr. MS. Dd.
vii. 6, to the effect that 'Villeins and naifs ought not to be in
tithings, secundum quosdam.' This is certainly a misunderstanding, but
it can hardly be accounted for either by the enfranchisement of the
peasant or the decay of the frank-pledge. I think the annotator may have
seen the passages in Leg. Cnuti or Leg. Henrici I, which speak about
free men joining the tithings, or speculated about the meaning of
'plegium liberale.' There could be no thought of excluding the villains
in practice during the feudal period. As to the allusion in the Mirror
of Justices, I shall refer to it in Appendix III.
[78] See below, Essay I. chap. vi.
[79] Bract. Note-book, pl. 1256: 'Et Ricardus dicit quod assisa non
debet inde fieri quia predictus Iohannes dedit terram illam cuidam
uillano ipsius Ricardi, et ipse uillanus reddidit terram illam domino
suo sicut emptam catallis domini sui, et quod ita ingressum habuit per
uillanum illum in terram illam ponit se super iuratam.' Liber Assisarum,
ann. 41. pl. 4. f. 252, shows that the statute _de religiosis_ could be
evaded by the lord entering into his villain's acquest. 'Levesque
d'Exester port un Assise de no. diss. vers le tenaunt et _Persey_ pur
Leuesque en euidence dit, que un A. que fuit villeine le Evesque come de
droit de sa Eglise purchase les tenements a luy et ses heyres et morust
seisie, apres que mort entra B. come fitz et heire, sur que possession
pur cause de villeinage entra Leuesque.--_Wich._ Home de religion ne
puit pas recoverer per assise terre si title de droit ne soit troue en
luy, et ou le title que est trouue en Leuesque est pur cause de la
purchace de son villein, en quel cas Leuesque ne fuit compellable de
entre sil nust vola mes puit auer eu ses seruices, et le statute voit
Quod terrae et tenementa ad manum mortuam nullo modo deueniant, per que
il semble que nous ne possomus pas doner iudgement pur Leuesque en ceo
cas. _Sanke_: de son villein ne puit il pas leuer ses seruices, ne
accepter lesse par sa maine, car a ceo que ieo entend par acceptacion de
homage ou de fealty per sa maine il serra enfraunchi, per quey necessite
luy arcte dentre, et le statut nestoit pas fait mes de restreindre
purchaus a faire de nouel, et non pas a defaire ceo qe fuit launcien
droit dez eglises. Et sur ceo fuerent aiournes en common bank, et
illonque le judgement done pur Leuesque sans difficultie,' etc. (See
also the report of the same case in Y.B. Mich. 41 Edw. III, pl. 8. f.
21.)
[80] Bracton, f. 25: 'Si ... stipulatus sit servus sibi ipsi, et non
domino, id non statim acquiritur domino, quamuis illud (corr. ille) sit
sub voluntate et potestate sua, antequam dominus apprehensus fuerit
possessionem. Quod quidem impune facere poterit, si voluerit, propter
exceptionem,' etc. Fitz. Abr. Vill. pl. 22 (Pasch. 35 Edw. III): 'Si le
villen le roy purchase biens ou chatteux le properte de eux est en le
roy sauns seisier. Mes auter est de auter home, etc. Mes sil purchas
terre le roy doit seisier, etc. car _Thorp._ dit que terre demurt terre
tout temps, mes biens come boefs ou vache puit estre mange.'
[81] Bracton, f. 25 b: 'Sic constat, quod qui sub potestate alterius
fuerit, dare poterit. Sed qualiter hoc cum ipse, qui ab aliis
possidetur, nihil possidere possit? Ergo videtur quod nihil dare possit,
quia non potest quis dare quod non habet, et nisi fuerit in possessione
rei dandae. Respondeo, dare potest qui seisinam habet qualemcunque, et
servus dare potest,' etc. In case of an execution for debt due to the
king the goods of the villain were to be taken only when the lord's
goods were exhausted. Dialog. de Scacc. ii. 14. p. 229.
[82] Bracton, f. 190: 'Et non competit alicui hujusmodi exceptio de
villenagio, praeterquam vero domino, nisi utrumque probet, scilicet quod
villanus sit et teneat in villenagio, cum per hoc sequatur, quod ad
ipsum non pertineat querela sive assisa, sed ad verum dominum, et ideo
cadit assisa quantum ad personam suam et non quantum ad personam
domini.' Cf. Britton, i. 325.
[83] Britton, i. 199; Littleton, 189; Bract. Note-book, pl. 1025:
'Assisa venit recognitura utrum una uirgata terre cum pertinenciis in R.
sit libera elemosina pertinens ad ecclesiam Magistri Iohannis de R. de
R. an laicum feodum Gaufridi Beieudehe. Qui venit et dicit quod non
debet inde assisa fieri quia antecessores sui _feoffati fuerunt a
conquestu Anglie_ ita quod tenerent de ecclesia illa et redderent ei per
annum x. solidos.... Iuratores dicunt quod terra illa est feodum eiusdem
ecclesie ita quod idem G. et antecessores sui semper tenuerunt de
ecclesia.... Et dicunt quod idem Gaufridus est natiuus Comitis Warenne et
de eo tenet in uilenagio aliud tenementum. Postea uenit Gaufridus et
cognouit quod est uillanus Comitis Warenne. Postea concordati sunt,'
etc.
[84] Example, Fitz. Abr. Villen. 16. The proper reply to such a plea is
shown by Bract. Note-book, pl. 1833: 'Et Iohannes dicit quod hoc ei
nocere non debet, quia quicquid idem dicat de uillenagio, ipsemet ut
liber homo sine contradiccione domini sui terram illam dedit Iohanni del
Frid patri istius Iohannis pro homagio et seruicio suo ... Consideratum
est quod predictus Iohannes recuperauit seisinam suam, et Richerus in
misericordia.' Liber Assis. ann. 43. pl. 1. f. 265 gives the contrary
decision: 'Lassise agarde et prise, per quel il fuit troue quil [le
defendant] fuit villein al Counte ... mes troue fuit ouster que le Counte
ne fut unques seisie de la terre, ne onques claima riens en la terre, et
troue fuit que le plaintif fuit seisie et disseisie. Et sur ceo, le quel
le plaintif recouerer, ou que le brief abateroit sont ajornes deuant eux
mesmes a Westminster. A que jour per opinion de la Court le briefe
abatu, per que le plaintif fuit non sue,' etc.
[85] A different view is taken by Stubbs, i. 484.
[86] Digby, Real Property, 3rd ed. p. 128. I may say at once that I fail
to see any connexion between copyhold tenure and any express agreements
between lord and villain.
[87] Bracton, 192 b: 'Si autem dominus ita dederit sine manumissione,
servo et heredibus suis tenendum libere, presumi poterit de hoc quod
servum voluit esse liberum, cum aliter servus heredes habere non possit
nisi cum libertate et ita contra dominum excipientem de villenagio
competit ei replicatio.' Cf. 23 b and Britton, i. 247; Fleta, 238;
Littleton, secs. 205, 207.
[88] Bracton, 24 b: 'Si autem in charta hoc tantum contineatur, habendum
et tenendum tali (cum sit servus) per liberum servitium huiusmodi verba
non faciunt servum liberum nec dant ei liberum tenementum ... Quia
tenementum nichil confert nec detrahit personae, nisi praecedat, ut
dictum est, homagium vel manumissio, vel quod tantundem valet de
concessione domini, scilicet quod villanus libere teneat et quiete et
per liberum servitium, _sibi et haeredibus suis_. Si autem hoc solum
dicatur, quod teneat per liberum servitium [sibi et heredibus suis], si
ejectus fuerit a quocunque non recuperet per assisam noue disseisine, ut
liberum tenementum, quia domino competit assisa et non villano. Si tamen
dominus ipsum ejecerit, quaeritur, an contra dominum agere possit de
conventione, cum prima facie non habet personam standi in judicio ad
hoc, quod dominus teneat ei conventionem, videtur quod sic, propter
factum domini sui, ut si agat de conventione, et dominus excipiat de
servitute, replicare poterit de facto domini sui, sicut supra dicitur de
feoffamento. Nec debent jura juvare dominum contra voluntatem suam, quia
semel voluit conventionem, et quamvis damnum sentiat, non tamen fit ei
injuria et ex quo prudenter et scienter contraxit cum servo suo, tacite
renunciavit exceptionem villenagii.'
[89] The freehold would be given and still 'non recuperet per assisam
no. diss. quia domino competit assisa et non villano.'
[90] See my article, 'The Text of Bracton,' in the Law Quarterly Review,
i. 189, et sqq.; and Maitland, Introduction to the Note-book of Bracton,
26 sqq.
[91] The Cambridge MSS. have been inspected for me by Mr. Maitland.
[92] Comp. Bracton, f. 194 b: 'Quia ex quo mentionem fecit de heredibus
praesumitur vehementer, quod dominus voluit servum esse liberum _quod
quidem non esset, si de heredibus mentionem non fecerit_.'
[93] Bracton, f. 208 b: 'Est etiam villenagium non ita purum, sive
concedatur libero homini _vel villano_ ex conventione tenendum pro
certis servitiis et consuetudinibus nominatis et expressis, quamvis
servitia et consuetudines sunt villanae. Et unde si liber ejectus fuerit
vel villanus _manumissus vel alienatus_ (_corr. alienus_ best MSS.)
recuperare non poterunt ut liberum tenementum, cum sit villenagium et
cadit assisa, vertitur tamen in juratam ad inquirendum de conventione
propter voluntatem dimittentis et consensum, quia si quaerentes in tali
casu recuperarint villenagium, non erit propter hoc domino injuriatum
propter ipsius voluntatem et consensum, et contra voluntatem suam jura
ei non subveniunt, quia si dominus potest _villanum manumittere et
feoffare_ multo fortius poterit _ei quandam conventionem facere_, et
quia si potest id quod plus est, potest multo fortius id quod minus
est.' We have here another difficulty with the text. The wording is so
closely allied to the passage on 24 b. just quoted, and the last
sentences seem to indicate so clearly that the case of a privileged
villain is here opposed to manumission and feoffment, that the 'villanus
manumissus vel alienus' looks quite out of place. Is it a later gloss?
Even if it is retained, however, the passage points to a very material
limitation of the lord's power. The holding in question can certainly
not be described as being held 'at will.' To me the words in question
look like a gloss or an addition, although very probably they were
inserted early, perhaps by Bracton himself, who found it difficult to
maintain consistently a villain's contractual rights against the lord.
Another solution of the difficulty is suggested to me by Sir Frederick
Pollock. He thinks '_villanus manumissus vel alienus_' correct, and lays
stress on the fact, that personal condition does not matter in this
case: that even though the tenant be free or _quoad_ that lord as good
as free, the assize lies not and there shall only be an action on the
covenant. If we accept this explanation which saves the words under
suspicion, we shall have to face another difficulty: the text would turn
from _villanus (suus)_ to _villanus alienus_ and back to _villanus
(suus)_ without any intimation that the subject under discussion had
been altered.
[94] The later practice is well known. Any agreement with a bondman led
to a forfeiture of the lord's rights. It may be seen at a glance that
such could not have been the original doctrine. Otherwise why should the
old books lay such stress on the mention of heirs?
[95] Besides the case from the Note-book which I discuss in the text,
Bracton, f. 199, is in point: 'Item esto quod villanus teneat per
liberum servitium sibi tantum, nulla facta mentione de heredibus, si cum
ejectus fuerit proferat assisam, et cum objecta fuerit exceptio
villenagii, replicet quod libere teneat et petat assisam, non valebit
replicatio, ex quo nulla mentio facta est de heredibus, _quia liberum
tenementum in hoc casu non mutat statum_, si fuerit sub potestate domini
constitutus. Ut in eodem itinere (in ultimo itinere Martini de
Pateshull) in comitatu Essex, assisa noue disseisine, si Radulphus de
Goggenhal.' The villain fails in his assize and there has been no
manumission, still it seems admitted that in this case the villain has
acquired _liberum tenementum_ by the lord's act. How can this be except
on the supposition that there is a covenant enforceable by the villain
against the lord?
[96] Bract. Note-book, pl. 1814: 'Nota quod filius villani recuperat per
assisam noue disseisine terram quam pater suus tenuit in villenagio quia
dominus villani illam dedit filio suo per cartam suam eciam sine
manumissione.'
[97] F.W. Maitland tells me, that Concanen's Report of _Rowe_ v.
_Brenton_ describes _bond conventioners_ in Cornwall.
[98] Bracton, f. 6: 'Et in hoc legem habent contra dominos, quod stare
possunt in judicio contra eos de vita et membris propter saevitiam
dominorum, vel propter intollerabilem injuriam, ut si eos destruant,
quod salvum non possit eis esse waynagium suum. [Hoc autem verum est de
illis servis, qui tenent de antiquo dominico coronae, sed de aliis secus
est, quia quandocunque placuerit domino, auferre poterit a villano suo
waynagium suum et omnia bona sua.] Expedit enim reipublicae ne quis re
sua male utatur.'
[99] See my article in the L.Q.R., i. 195.
[100] Bracton, f. 196-202.
[101] Coram Rege, 15 Edw. I, m. 18: '... licet habeant alia averia per
que distringi possent distringit eos per averia de carucis suis quod est
contra statutum domini Regis.' (Record Office.)
[102] Spence, Equitable Jurisdiction, i. 136.
[103] The Mirror of Justices, p. 110, follows Britton in this matter.
This curious book is altogether very interesting on the subject of
villeinage, but as its information is of a very peculiar stamp, I have
not attempted to use it currently on the same level with other
authorities. I prefer discussing it by itself in App. III.
[104] Bracton, f. 26 b, 200. Cf. Bract. Note-book, pl. 141: 'Dicit quod
tunc temporis scilicet in itinere iusticiariorum tenuit ipse quamdam
terram in uillenagium quam emerat, et tunc cognouit quod terra illa fuit
uillenagium, et precise defendit quod nunquam cognouit se esse
uillanum.'
[105] Britton, ii. 13; Y.B. 20/21 Edw. I, p. 41: 'Kar nent plus neit a
dire, jeo tenk les tenements en vileynage de le Deen etc. ke neit a dire
ke jeo tenk les tenements ... a la volunte le Deen etc.'
[106] Bracton, f. 168.
[107] Ibid., f. 199 b.
[108] Palgrave, Rotuli Curiae Regis, ii. 192.
[109] Placitorum Abbrev. 25, 29; Note-book, pl. 88. (The father is
called Ailfricus in the Plea Roll Divers terms 2 John, 2 d., at the
Record Office.)
[110] Bract. Note-book, pl. 88.
[111] Case 70: 'Consideratum est quod terra illa est uilenagium ipsius
Hugonis (corr. Johannis), et quod si Martinus uoluerit terram tenere
faciat consuetudines quas pater suus fecit, sin autem capiat terram suam
in manum suam.'
[112] Marginal remark in the Note-book to pl. 70: 'Nota quod liber homo
potest facere uillanas consuetudines racione tenementi uillani set
propter hoc non erit uillanus, quia potest relinquere tenementum.' Comp.
Mr. Maitland's note to the case.
[113] Bracton, f. 199 b: 'Unde videtur per hoc, quod licet liber homo
teneat villenagium per villanas consuetudines, contra voluntatem suam
ejici non debet, dum tamen facere voluerit consuetudines quae pertinent
ad villenagium, et quae praestantur ratione villenagii, et non ratione
personae.'
[114] Cf. Blackstone's characteristic of copyholds: 'But it is the very
condition of the tenure in question that the lands be holden only so
long as the stipulated service is performed, quamdiu velint et possint
facere debitum servitium et solvere debitas pensiones.' (Law Tracts, ii.
153.)
[115] Bract, f. 200.
[116] Bract. Note-book, pl. 1103: 'Et ideo consideratum est quod
Willelmus conuictus est de uilenagio et si facere uoluerit predictas
consuetudines teneat illam bouatam terre per easdem consuetudines, sin
autem faciat Bartholomeus de terra et de ipso Willelmo uoluntatem suam
ut de uillano suo et ei liberatur. Cf. Mr. Maitland's note.
[117] I should like to draw attention to one more case which completes
the picture from another side. Bract. Note-book, pl. 784: 'Symon de T.
petit versus Adam de H. et Thomam P. quod faciant ei consuetudines et
recta seruicia que ei facere debent de tenemento quod de eo tenent in
uillenagio in T. Et ipsi ueniunt et cognoscunt quod uillani sunt. Et
Symon concedit eis quod teneant tenementa sua faciendo inde seruicia
quae pertinent ad uillenagium, ita tamen quod non dent plus in auxilium
ad festum St. Mich. nec per annum quam duodecim denarios scilicet
quilibet ipsorum et hoc nomine tallagii.'--The writ of customs and
services was out of place between lord and villain. The usual course was
distraint. The case is clearly one of privileged villainage, but it is
well to note that although the services are in one respect certain, the
persons remain unfree.
[118] Bracton, f. 208 b.
[119] Ibid., f. 200.
[120] Bract. Note-book, pl. 63: 'Dicunt quod idem W. nullum habuit
liberum tenementum quia ipse uillanus fuit et fecit omnimoda uilenagia
quia non potuit filiam suam maritare nec bouem suum uendere. 1819: R. de
M. posuit se in magnam assisam Dom. Reg. in comitatu de consuetudinibus
et seruiciis que Th. B. petit uersus eum, unde idem Th. exigebat ab
eodem R. quod redderet ei de uillenagio per annum 19 den. et aruram
trium dierum et messuram trium dierum ... et gersumam pro filia sua
maritanda et unam gallinam ad Natale et tot oua ad Pascha et tallagium
et quod sit prepositus suus. Set quia illa sunt servilia et ad
uillenagium spectancia et non ad liberum tenementum, consideratum est
quod magna assisa non iacet inter eos, set fiat inquisicio per xii,'
etc. Cf. 794, 1005, 1225, 1661.
[121] Bract. Note-book, 281: 'Et Prior dicit quod in parte bene
recordantur set in parte parum dicunt quia iuratores dixerunt quod
debuit dare xii. den. pro filia sua maritanda, et debuit plures alias
consuetudines et petierunt respectum ut assensum habere possent a domino
Roberto de Lexintona utrum hoc esset liberum tenementum ex quo sciunt
quid debuit facere et quid non et nullum respectum habere potuerunt.'
[122] Example--Bract. Note-book, pl. 1887. Fitzherbert, Abr. Villen. 38
(13 Ed. I): 'Quia predictus J. nullam probacionem producit neque sectam
et cognoscit quod ille est in seisina ... de patre predicti W. quem
potuit produxisse ad probacionem, consideratum est quod predicti W. et
R. liberi maneant.'
[123] Bracton, f. 199. The jury came in only by consent of the parties.
[124] Britton, i. 207; Fitzherbert, Abr. Villen. 37.
[125] Court Rolls of Havering atte Bower, Essex, Augment. Off. Rolls,
xiv. 38. (Curia--die Jovis proxima ante festum St. Bartholomaei Apostoli
anno r. r. Ricardi II, 21mo.) 'Inquisicio ... dicit ... quod non est
aliquis homo natiuus de sanguine ingressus feodum domini, set dicunt
quod est quidam Johannes Shillyng qui Sepius dictus fuerat natiuus. Et
dicunt ultra quod quidam Johannes Shillyng pater predicti Johannis fuit
alienigena et quod predictus Johannes Shillyng quod ad eorum cognitionem
est liber et libere condicionis et non natiuus.'
[126] Fitzherbert, Abr. Villen. 32 (H. 19 Edw. II).
[127] Ibid. 5 (13 Edw. I).
[128] Fitzherbert, l. c.: 'E ce issu fuit trie par gents de paiis ou le
maner est e nemi ou il nasquist par touts les justices.'
[129] Rotuli Parliam. ii. 192. Hargrave's argument in the Negro
Somerset's case is very good on all these points. Howell, State Trials,
xx. 38, 39.
[130] Bracton, 201; Britton, i. 202 sq.
[131] Bracton, f. 6, and on many other occasions.
[132] Co. Lit. 137, b. Cf. King Henry I's writ in favour of the
Monastery of Abingdon. Bigelow, Placita Anglo-Normannica, 96: 'Facias
habere F. abbati omnes homines suos qui de terra sua exierunt propter
herberiam curie mee.' Henry II puts it the other way, p. 220: 'Nisi sunt
in dominio meo.'
[133] A most curious pleading based on the conceptions of Glanville
occurs in a Cor. Rege case of 10 Henry III, which was pointed out to me
by F. Maitland. See App. IV. Mr. York Powell suggests that the
limitation may have originated in the fact, that in early times a man
could no more give away a slave from his family estate without the
consent of the family than he could give away the estate itself or part
of it. There was no reason for such limitation in the case of a slave
that had been bought with one's private money. Hence the necessity of
selling a slave in order to emancipate him. The conjecture seems a very
probable one, but the question remains, how such ancient practice could
have left a trace in the feudal period. The explanation in the text may
possibly account for the tenacity of the notion.
[134] Note-book, pl. 31, 343.
[135] Bracton, f. 194, 195. Bracton's text has been rendered almost
unintelligible here by the careless punctuation of his editors, and Sir
Travers Twiss' translation is as wrong and misleading as usual. I will
just give the passage in accordance with the reading of Digby, 222
(Bodleian Libr.), which is the best of all the MSS. I have seen: 'Quia
esto quod seruus uelit manumitti et cum nichil habeat proprium eligat
fidem alicuius qui eum emat quasi pro denariis suis, per talem emptionem
non consequitur emptus aliquam libertatem nisi tantum quod mutat
dominum. In re empta in primis solui debet pretium, postea sequitur
traditio rei: soluitur hic pretium pro natiuo, set nulla subsequitur
traditio, sed semper manet in uillenagio quo prius. Si tenementum
adquirat tenendum libere et heres manumissoris uel alius successor eum
eiciat, si petat per assisam et heres opponat uillenagium, et villanus
replicet de manumissione et emptione, heres triplicare poterit, quod
imperfecta fuit emptio siue manumissio eo quod nunquam in uita
uenditoris subsecuta fuit traditio, et ita talis semper remanebit sub
potestate heredis.'
[136] Note-book, pl. 1749: 'Iudicatum est quod liber sit quantum ad
heredem manumittentis et non quantum ad alios, quod iudicium non est
uerum.'
[137] Bracton, 209; cf. 7 and 200. Britton, ii. 13.
[138] Bracton, 209: 'Villenagium privilegiatum ... tenetur de Rege a
Conquestu Angliae.' Cf. Blackstone, Law Tracts, ii. 128.
[139] Madox, History of the Exchequer, i. 704: 'Tallagium dominiorum et
escaetarum et custodiarum.'
[140] Bract. Note-book, 1237 (the prior of St. Swithin denies a manor to
be ancient demesne): '... per cc annos ante conquestum Anglie [terre]
date fuerunt priori et conventui et ab aliis quam regibus.'
[141] Y.B. Trin. 49 Edw. III, pl. 8 (Fitzherbert, Abr. Monstraver. 4):
'... touts les demesnes qui fuerent en la maine Seint E. sont aunciens
demesne, mesque ils fuerent aliens a estraunge mains quant le liver de
Domesday se fist, come il avient del manor de Totenham qui fut en autre
maine a temps de Domesday fait, come en le dit livers fait mencion, que
il fuit adonques al Counte de Cestre.'
[142] Very curious pleadings occurred in 1323. Y.B. 15 Edw. II, p. 455:
'_Ber(wick)_ Ils dient en l'Exchequer que serra (_corr._ terra) R. serra
ecrit sur le margin en cas ou cest ancien demene en Domesday, mes ceo
fust escript sur le dyme foille apres sur un title terra R., mesine
(_corr._ mes une _or_ mesqe?) R. fuit escript sur le margin de chescun
foille apres, e tout ceo la est anciene demene a ceo quil nient (_corr._
dient), mes ascunes gens entendent que les terres qui furent les demenes
le Roy St. Edward sont auncien demene, e autres dient fors les terres
que le Conquerour conquist, que furent en la seissin St. Edward le jour
quil mourust sont anciene demene.' Although a difference of opinion is
mentioned it is not material, for this reason, that the entry as _Terra
Regis_, at least T.R.E., is absolutely required to prove a manor ancient
demesne. I give the entry on the Plea Roll in App. V.
[143] I think only distress can be implied by the remark of Bereford J.
Y.B. 30/31 Edw. I, p. 19: 'Quant vous vendrez a loustel, fetes de vostre
archevileyn ceo qe vous vodrez.' The words are strange and possibly
corrupt.
[144] Blackstone, Law Tracts, ii. 153: 'They cannot alienate tenements
otherwise than by surrender into the lord's hand.' Bracton, 209.
[145] In a most curious description of the customs of villain sokemen of
Stoneleigh, Warwick, in the Register of Stoneleigh Abbey, I find the
following entries: 'Item sokemanni predicti filias suas non possunt
maritare sine licencia domini prout patet anno viij Regis E. filii Regis
E. per rotulum curie in quo continetur quod Matildis de Canle in plena
curia fecit finem cum domino pro ij sol. quia maritauit filiam suam
Thome de Horwelle sine licencia domini.... Item anno Regis H. lvj
continetur in rotulo curie quod Willelmus Michel fuit in misericordia
quia maritauit filiam suam sine licencia domini et similiter decenarii
fuerunt in misericordia quia hoc concelauerunt.' As to the Stoneleigh
Register, see App. VI. Another instance of merchet in an ancient demesne
manor is afforded by the Ledecumbe (Letcombe) Regis Court Rolls of 1272.
Chapter House, County Bags, Berks. No. 3, m. 12: 'Johannes le Jeune se
redemit ad maritandum et fecit finem xij sol.... Johannes Atwel redemit
filiam suam anno predicto' (Record Office).
[146] Henry II's charter to Stoneleigh Abbey: 'Quieta de schiris et
hundredis, et murdro et danegeldo, et placitis et querelis, et geldis et
auxiliis, et omni consuetudine et exactione' (Dugdale, Monasticon, v.
447).
[147] Close Roll, 12 Henry III., m. 11, d: 'Monstrauerunt domino Regi
homines de Esindene et de Beyford, quod occasione misericordiae c.
librarum, in quam totus Comitatus Hertfordie incidit coram iusticiariis
ultimo itinerantibus ... hidagium quoddam assedit vicecomes super eos ad
auxilium faciendum ceteris de comitatu ad misericordiam illam
acquietandam et inde eos distringit. Quia vero predicti homines nec alii
de dominicis domini Regis sectam faciunt ad comitatum et ea racione non
tenentur ad misericordiam ceterorum de comitatu illo acquietandam
auxilium facere aut inde participes esse, mandatum est vicecomiti
Hertfordie quod homines predictos in hidagio et demanda pacem habere
permittat' (Record Office). Placita de Quo Warranto, 777, 778: 'Non
quieti de communi amerciamento nisi tantum in Stonle.'
[148] Viner, Abr. v. Anc. Dem. C^2, 1; cf. E, 20. Madox, Hist. of
Exch., i. 418, note _l_: 'Quieti de auxilio vicecomitis et baillivorum
suorum.'
[149] Cor. Rege, Mich. 5 E. II, m. 77: '(Juratores dicunt quod homines
de Wycle) in itinere respondent per quatuor et prepositum sicut cetere
ville de corpore comitatus.' This against their claim to hold in ancient
demesne.
[150] Viner, Abr. Anc. Dem. B. 1, 4, 6.
[151] Madox, Exch., i. 412, 698.
[152] Stubbs, ii. 566, 567 (Libr. ed.); Madox, Exch., i. 751.
[153] Cor. R. M. 5 E. II, m. 77: 'Quando communitas comitatus talliatur
... predicti homines taxantur sicut ceteri villani ejusdem comitatus'
(against the ancient demesne claim).
[154] Fitzherbert, Abr. Monstauerunt, 6 (H. 32 E. III): '... quant le
roi taile les burghs a taunt come ils paia a taile pur tant il nous
distreint.' _Th._: 'Entend qe les feoffes le roy auront taile?' quasi
diceret non, 'car cest un regalte qui proprement attient al roy et a nul
auter.' _Clam._: 'Tout aura il tail il serra leue en due maner sil
auront breve hors del chauncerie al viconte, sc. quod habere facias
racionable taile.' The men of King's Ripton, Hunts., who were constantly
wrangling about their rights with the Abbot of Ramsey, the lord of the
manor, maintained that they had never been tallaged nisi tantummodo ad
opus Regis, and their claim was corroborated by an inspection of the
Exchequer Rolls (Madox, Exch., i. 757, n). Before granting a writ of
tallage to the Abbot of Stoneleigh in 1253, Henry III had an inquisition
made as to the precedents. It was found that 'Nunquam predictum manerium
de Stonle talliatum fuit postquam Johannes Rex predictum manerium dedit
predicti Abbati et Conventui' (Stoneleigh Reg., f. 25).
[155] The Law-books say so distinctly. Britton, ii. 13: 'Et pur ceo qe
teus sokemans sount nos gaynours de nos terres, ne voloms mie qe teles
gentz seint a nule part somouns de travailer en jurez ne en enquestes,
for qe en maners a queus il appendent.' Cf. Fleta, p. 4.
[156] Natura Brevium, f. 3 b (ed. Pynson).
[157] Y.B. H. 49 E. III, pl. 12 (Fitzherbert, Abr. Aunc. Dem. 42, quotes
pl. 7 instead of 12 by mistake): _Belk(nap)_, 'Verite est qe le terre
est demandable par le briefe de droit patent en le court le seigniour
apres la confirmacion (_sc._ par chartre) par ce qe le brief de droit
serra commence en le court le seignior, mes apres la confirmacion il ne
serra demande en auncien demesne par brief de droit close secundum
consuetudinem,' etc.
[158] Bracton actually calls the plea of ancient demesne an exception of
villainage, f. 200: 'Si autem in sokagio villano, sicut de dominico
domini Regis, licet servitia certa sunt, obstabit ei exceptio
villenagii, quia talis sokmannus liberum tenementum non habet quia tenet
nomine alieno.' Cf. Fitzherbert, Abr. Aunc. Dem. 32.
[159] Bract. Note-book, pl. 652: 'Non debent extra manerium illud
placitare quia non possunt [ponere] se in magnam assisam nec defendunt
se per duellum.' On the cases when an assize could be taken as to
tenements in ancient demesne, see the opinion printed in Horwood's
Introduction to Y.B. 21/22 Edw. I, p. xviii.
[160] Stoneleigh Reg., f. 76 sqq: 'Item in placito terre possunt partes
si voluerint ponere jus terre sue in duello campionum vel per magnam
assisam, prout patet in recordo rotuli de anno xlv Regis Henrici inter
Walterum H. et Johannem del Hul etc. et inter Galfridum Crulefeld et
Willelmum Elisaundre anno xx Regis Edwardi filii Regis Henrici,' etc.
[161] Bract. Note-book, 1973: 'Nota quod si manerium quod solet esse de
dominico domini Regis datum fuerit alicui et postea semel capta fuerit
assisa noue uel mortis de consuetudine, iterum capiantur assise propter
consuetudinem.'
[162] Britton, ii, 142.
[163] If the lord brings an action against the tenant, ancient demesne
is no plea, Viner, Abr., Anc. Dem. G. 4. This was not quite clear
however, because ancient demesne is a good plea whenever recovery in the
action would make the land frank fee.
[164] Y.B., M. 41 Edw. III, 22: '_Chold_: Si le seigniour disseisie son
tenaunt il est en eleccion del tenant de user accion en le court le
seigniour ou en le court le roy' (Fitzherbert, Abr. Aunc. Dem. 9). Liber
assis. 41 Edw. III, pl. 7, f. 253: '_Wichingham_: Si le tenant en
auncien demesne fuit disseisi par le seignior en auncien demesne il est
a volunte le tenant de porter lassise al comen ley ou en auncien demesne
mes e contra si le seignior soit disseisi par le tenant, il ne puit
aillours aver son recoverie que en le court le roy.'
[165] Stoneleigh Register: 'Item anno regni Regis Eduardi filii Regis
Henrici vij Ricardus Peyto tulit breue de recto versus abbatem de Stonle
et alios de tenementis in Fynham in curia de Stonle.' There are several
instances in the Court Rolls of King's Ripton, Hunts. See App. V.
[166] Bract. Note-book, 834: 'Preceptum est vicecomiti quod preciperet
ballivis manerii Dom. Regis de Haueringes quod recordari facerent in
Curia Dom. Regis de H. loquelam que fuit in eadem curia per breue Dom.
Regis inter,' etc.: 652 is to the same point. I must say, however, that
I do not agree with Mr. Maitland's explanation, vol. ii. p. 501, n. 4:
'John Fitz Geoffrey (the defendant pleading ancient demesne) cannot
answer without the King. Tenet nomine alieno. Bract. f. 200. The
privileges of tenants in ancient demesne are the King's privileges.'
John Fitz Geoffrey is the King's _firmarius_, and the other defendants
vouch him to warranty. After having pleaded to the jurisdiction of the
Court he puts in a second plea, 'salvo predicto responso,' namely, that
the tenement claimed is encumbered by other and greater services than
paying 15_s._ to hold freely. This is clearly the farmer's point of view,
and as such, he cannot answer without the king. I lay stress on the
point because a person pleading ancient demesne, although not holding
_nomine proprio_ in strict law, is compelled to answer without the King
in the manorial court and by the manorial writ.
[167] I need not say that the 'little writ' did not lie against the King
himself. No writs did. Cp. Fleta, p. 4.
[168] Y.B., 11/12 Edw. III, 325 (Rolls Ser.).
[169] I shall have to speak of the constitution and usages of the court
in another chapter.
[170] Actions on statutes could not be pleaded in ancient demesne
because, it was explained, the tenantry not being represented in
parliament, were no parties in framing the statute; Viner, Abr. Anc.
Dem. E. 19. Another explanation is given in Y.B., H. 8 Edw. II, p. 265.
[171] As a matter of course, any question as to whether a manor was
ancient demesne, and whether a particular tenement was within the
jurisdiction of it, could be decided only in the high courts.
[172] Viner, Abr., I. 21.
[173] Y.B., H. 3 Edw. III, 29: '_Caunt_: Si le jugement soit une foitz
revers, la court auncien demesne ad perdu conusance de ce ple a touts
jours.'
[174] Stoneleigh Reg.: 'Item si contingat quod error sit in iudiciis
eorum et pars ex eorum errore gravetur contra consuetudines, pars
gravata habebit breve Regis, ad faciendum venire recordum et processum
inter partes factos coram justiciariis domini Regis de Banco; qui
justiciarii inspecto recordo et processu quod erratum est in processu
iusto iudicio emendabunt et ipsos sokemannos propter errorem et falsum
iudicium secundum quantitatem delicti ad multam condempnabunt.'
[175] Bract. Note-book, 834: 'Et illi de curia qui veniunt quesiti, si
unquam tale factum fuit judicium in prefata curia, et quod ostendant
exemplum, et nichil inde ostendere possunt, nec exemplum nec aliud.'
[176] Y.B., 11/12 Edw. III, p. 325 (Rolls Ser.): '_Stonore_: Dit qe
toutz les excepcions poent estre salve par usage del manoir forspris un,
cest a dire qe la ou il egarde seisine de terre par defalte apres
defalte la ou le tenant avait attourne en court qe respoundi pur lui.'
Cf. Y.B., H. 3 Edw. III, 29, and T. 3 Edw. III, 29.
[177] Bract. Note-book, pl. 834 and 1122 concern the royal manors of
Havering and Kingston.
[178] I say against all men, because in the case of a stranger's
interfering with the privileged villain's rights, it was for him to
prove any exemption, e.g. conveyance by charter, which would take the
matter out of the range of the manorial court.
[179] Britton, ii. 13: 'Et pur ceo qe nous voloms qe ils eyent tele
quiete, est ordeyne le bref de droit clos pledable par baillif del maner
de tort fet del un sokeman al autre, qe il tiegne les plaintifs a droit
selom les usages del maner par simples enquestes.'
[180] Natura brevium, f. 4 b (ed. Pynson).
[181] Stoneleigh Reg.: 'Si dominus a sokemanis tenentibus suis exigat
alias consuetudines quam facere consueuerunt quum manerium fuit in
manibus progenitorum Regis eos super hoc fatigando et distringendo,
prefati tenentes habent recuperare versus dominum et balliuos suos per
breve Regis quod vocatur Monstraverunt nobis homines de soka de Stonle,'
etc.
[182] Viner, Abr. Anc. Dem. C^2, 3.
[183] Fitzherbert, Abr. Monstraverunt, 5 (P. 19, Edw. III): '_Seton_:
Cest un cas a par luy en cest breue de Monstrauerunt qe un purra sue pur
luy e tous les autres del ville tout ne soient pas nosmes en le breve e
par la suite de un tous les autres auront auantage et cesty qe vient
purra estre resceu e respondra par attourne pur touts les auters coment
qe unque ne resceu lour attournement; issint qe cest suit ne breue nest
semblable a auter.'
[184] As it was the peasants had the greatest difficulty in conducting
these cases. In 1294 some Norfolk men tried to get justice against Roger
Bigod, the celebrated defender of English liberties. They say that they
have been pleading against him for twenty years, and give very definite
references. The jury summoned declares in their favour. The earl opposes
them by the astonishing answer that they are not his tenants at all. It
all ends by the collapse of the plaintiffs for no apparent reason; they
do not come into court ultimately, and the jurors plead guilty of having
given a false verdict; see App. VII. In the case of the men of Wycle
against Mauger le Vavasseur, to which I have referred several times, the
trial dragged on for five years; the court adjourned the case over and
over again; the defendant did not pay the slightest attention to
prohibitions, but went on ill-treating the tenantry. At last he carried
off a verdict in his favour; but the management of the trial certainly
casts much suspicion on it. Cf. Placitorum Abbreviatio, 303.
[185] Madox, History of the Exch., i. 723, c, d; 724, e; 725, f.
[186] Bract. Note-book, pl. 1237: 'Homines prioris S^{ti} Swithini ...
questi fuerunt Dom. Regi.'
[187] Madox, Exch., i. 725, u; the 'Monstraverunt' of the men of King's
Ripton quoted above on the question of tallage. This matter of tallage
could certainly be treated as an alteration of services, and sent for
trial to the Common Bench.
[188] Exch. Memoranda, Q.R. 48/49 Henry III, m. 11. The position of the
castle of Bamborough was certainly a peculiar one at the time. Cf. Close
Roll, 49 Henry III, m. 7, d.
[189] Exch. Memoranda, Q.R. Trin. 20 Edw. I, m. 21, d. I give the
documents in full in App. VIII. The petitioners are not villains, but
they are tenants of base tenure. They evidently belong to the class of
villain socmen outside the ancient demesne, of which more hereafter.
[190] Placitorum Abbrev. 25: 'Consideratum est quod constabularius de
Windesore de quo homines de Bray questi fuerunt quod ipse vexabat eos de
serviciis et consuetudinibus indebitis et tallagia insueta ab eis
exigebat accipiat ab eis tallagia consueta et ipsi homines alia servicia
et consuetudines quas facere solent faciant.' (Pasch. et Trin., 1 John.)
[191] Madox, Exch. i. 411, u: 'Homines de Branton reddunt compotum de x
libris, ut Robertus de Sachoill eis non distringat ad faciendum ei alias
consuetudines quam Regi facere consueverunt dum fuerunt in manu sua.'
(Pipe Roll 13 Jo., 7, 10 b, Devenesc).
[192] Dugdale, Monasticon. v. 443; Stonleigh Reg. f. 14 b. Cf. Court
Rolls of Ledecumbe Regis (Chapter House, County Bags, Berks, A. 3):
'Anno domini MCCLXVIII, solverunt homines de Ledecumbe Regis C. sol. ad
scaccarium domini Regis, pro redditu domini Regis et predicti homines
habent residuum in custodia sua excepta porcione prioris Montis Acuti de
tempore suo et porcione prioris de Bermundseye de tempore suo.' The
manor had been let in fee farm to the monks of Cluny, who demised it to
the Prior of Montacute, who in his turn let it to the Prior of
Bermondsey.
[193] Stoneleigh Reg. f. 15 a: 'Totam sokam de Stonleya et omnes
redditus et consuetudines et rectitudines quas Henricus rex pater noster
ibi habuit salua regali justicia nostra. Uigore quarum chartarum
prefatus Abbas et conventus habent et possident totam sokam de Stonle
que quondam pertinuit ad le Bury (_sic_) in dicta soka existens
edificatum, ubi quidam comes quondam de licencia Regis moram traxit. Qui
locus nunc edificiis carens vocatur le Burystede iuxta Crulefeld prout
fossatis includitur, et est locus nemorosus.'
[194] Stoneleigh Reg. f. 13 a: 'Isti duo tenent (burgagia in Warrwick)
per seruicium sustinendi unum plumbum in manerio de Stonle competens
monasterio Regis.'
[195] Placita de Quo Warranto, 778: 'Item clamat quod Ballivus dom.
Regis in manerio de Stonleye nullam faciet districtionem seu
attachiamenta sine presencia Ballivi Abbatis.'
[196] See App. VI.
[197] Stoneleigh Reg. 13 a: 'W.W. tenet unum burgagium per seruicium
inveniendi domino regi seniori domino de Stonle quartam partem unius
tripodis.'
[198] King's Ripton Court Rolls, Augment. Off. Rolls, xxiii. 94, m. 10:
'Dicta Matildis optulit se versus Margaretam Greylaund de placito dotis,
que non venit. Ideo preceptum est capere in manum domini Regis
medietatem mesuagii etc.--pro defectu ipsius Margarete. Eadem Matildis
optulit se uersus Willelmum vicarium--qui non uenit. Ideo preceptum est
capere in manum domini Regis medietatem quinque acrarum terre etc.
(Curia de Riptone Regis die Lune in festo sanctorum Protessi et
Marciniani anno [r. r. E. xxiv. et J. abb. x]); m. 10, d.--Qui venit et
quantum ad aliam acram dicit, quod non est tenens set quod Abbas
seysiuit illam in manum suam. (Curia--in festo Assumpcionis--anno supra
dicto).' In the first case the seizure corresponds to the 'cape in
manum' of a freehold. As there could be no such thing in the case of
villainage, and the procedural seizure was resumption by the lord, the
point is worth notice and may be explained by the King's private right
still lingering about the manor. The last case is one of escheat or
forfeiture.
[199] Stoneleigh Reg. 75 v: 'Item si aliquis deforciatur de tenemento
suo et tulerit breve Regis clausum balliuis manerii versus deforciantes,
dictum breve non debet frangi nisi in curia.'
[200] Natura brevium, 13: 'Balliuis suis.'
[201] Britton, i. 221: 'Rois aussi ne porrount rien aliener les dreits
de lour coroune ne de lour reaute, qe ne soit repellable par lour
successours.'
[202] Stoneleigh Reg. 30: 'Nos attendentes, quod huiusmodi alienaciones
et consuetudinum mutaciones eciam in nostri et heredum nostrorum
preiudicium et exheredacionem cedere possent, si manerium illud in manus
nostras aliquo casu deuenerit sustinere nolumus sicut nec debemus
manerium illud aut ea que ad illud pertinent aliter immutari quam esse
solebant temporibus predictis.'
[203] The writs are directed sometimes to the bailiffs of the Archbishop
of Canterbury and of the Duke of Albemarle, who had the manor in custody
for King Richard II, but in the twenty-third year they are inscribed to
the King's bailiffs. (Augmentation Court Rolls, xiv. 38). As to the
trial mentioned in the text see App. IX.
[204] Stoneleigh Reg. 11 a: 'Precipio tibi quod sine dilacione deliberes
Abbati de Stonleia omnes terras et tenuras quas ego dedi et carta mea
confirmaui. Et de terra quam rustici uersus calumpniantur et quam ego ei
dedi et concessi, inquire si rectum in ea habuerunt et si rectum in ea
habent, dona eis rusticis alibi in terra mea excambium ad valenciam.'
[205] Bracton, f. 209: 'Ad quemcumque manerium peruenerit.'
[206] Madox, Firma Burgi, 54; Pipe Rolls, passim. Cf. Rot. Cur. Regis
Ric., p. 15: 'Homines de Kingestone--c. sol. ... pro respectu tenendi
villam suam ad eandem firmam quam reddere solebant tempore Henrici
Regis.'
[207] Madox, Exch. 1437, z: 'Homines de Lechton x marcas pro habenda
inquisicione per proxima halimota et per legales milites et alios
homines de visneto, quas consuetudines ipsi fecerunt tempore Henrici
Regis Patris.' (Pipe Roll. 4 John.) Cf. 442, a: 'Homines de Stanleya
reddunt compotum de uno palefrido, ut inquiratur per sacramentum
legalium hominum, quas consuetudines et quae servitia homines de manerio
de Stanleia facere consueverunt Regi Henrico patri Ricardi Regis dum
essent in manu sua.' (Pipe Roll, 9 John.)
[208] Y.B., Trin., 49 E. III, pl. 8 (Fitzherbert, Abr. Monstrav. 4):
'_Han._ mist auant record de Domesday qui parla _ut supra_:--_Terra
sancti Stephani_ en le title qui parla de ceo maner que il fuit en sa
maine. Et auxi il mist auant chartre le Roy que ore est, par quel le roy
reherse quil ave viewe la chartre le roy Henri le primer, et reherce
tout le chartre, et ceo chartre voilet que Henri aue viewe par ceo
parolle _inspeximus_ la chartre le roy William Conquerour qui aue done
graunte e confirme mesme le manor a un Henri Butle, a luy, et a ces
heirs a ceo iour, quel chartre issint volent _inspeximus cartam domini
Edwardi Regis Anglie_ issint par le recorde et par les chartres est
expressement reherce par le roy qui ore est, que William Conquerour fuit
en possession de ceo maner, Seinct Edward auxint, en quel cas ceo serra
aiudge auncient demesne tantamont come si la terre ust estre en la main
Seint Edward par expresse parolx en le Domesday. _Belknap_: Le comen
fesance de chartres est de faire parolle en le chartre _dedimus
concessimus et confirmauimus_ et uncore le chartre est bon assets al
part, mesque le roy nauer riens a ceo temps, issint que riens passe par
ceo paroll _dedimus_ mes il auer par parole de confermement, issint que
il nest my proue par ce chartre que ils auoient la possession, pur ceo
que les chartres poient estre effectuels a auter entent, scilicet, en
nature de confermement, et auxi ces chartres fait par Seint E. et W.
Conquerour ne sont my monstres a ore pur record, issint que mesque il
furent monstre, et auxi purroit estre proue que le maner fuit en lour
possession, nous ne puissomus pas aiudger la terre auncien demesne, pur
ceo que auncien demesne sera aiudge par le liuer de domesday qui est de
record, et nemy en autre maner. Et puis les plaintifs fuerent nonsues.'
[209] Fitzherbert, Abr. Cause de remover ple, 18 (Y.B., M., 21 Edw.
III): '_Wilby_: Il conuient que il count en le _monstrauerunt_ que il
luy distreint pur auters customes que ses auncestres ne fecerunt en
temps W. Conquerour, cas le _monstrauerunt_ ne gist pas forsque en cas
ou plusiours services sont demandez que ces auncestres ne solent faire
en cel temps.'
[210] Coram Rege, Tr. 3 Edw. I, m. 14, d: 'Et unde predicti homines (de
Kyngesripton) queruntur quod temporibus Cnout regis quo manerium illud
fuit in manu dicti antecessoris sui tenuerunt tenementa sua per seruicia
subscripta, videlicet reddendi pro qualibet virgata terre 5 solidos,
etc. Et omnes antecessores sui tenuissent tenementa sua per predicta
seruicia usque ad conquestum Anglie, et a conquestu usque ad tempus
regis Henrici aui regis Johannis aui domini regis nunc, usque ad tempus
cuiusdam Abbatis de Rameseye Roberti Dogge nomine qui tempore Henrici
Regis distrinxit antecessores suos ad dandum relevium pro voluntate sua,
etc. Et Abbas dicit quod non debet eis ad hoc breue respondere, quia
desicut in narracione sua non faciunt mencionem quod ipsi extitissent in
tali statu in quo fuerunt tempore regis Knout, quem statum ipsi clamant
habere, tempore aliorum regum de quo memoria haberi possit nec de quo
breue de recto currit nec aliqua verificacio per patriam fieri
possit.... Et Reginaldus et alii bene cognoscunt quod ipse Abbas et
predecessores sui exstiterunt in seysina percipiendi ab ipsis et
antecessoribus suis predicta seruicia indebita a tempore predicti
Henrici regis. Set desicut istud breue quod conceditur in fauorem
dominicorum domini Regis non habet prescriptionem temporis, petunt
judicium si [racione?] alicujus longiqui termini debeant ab actione
excludi sua.'
[211] Y.B., M., 15 Edw. II, p. 455: '_Bereford_: Coment puit cest brief
vous servir la ou il (the defendant) dist qe luy et ces predecessors ont
este de vous et de vos auncestres (seisi) de tout temps come, etc., et
vos ont taille, etc. Devoms nous enguerre (enquerre _corr._) si vos
feistes touz services en temps le Roy S^t. Edward, ou non de temps que
vos avez pris title? _Devon_: Sir navyl (nanyl _corr._), mais nous
disons qe touz les tenants qui tindrent en temps S^t. Edward tinderent,
etc. (par certains services) ... tanqe a ore xv ans devant le brief
purchace etc. e ceo puit home enquere.'
[212] Y.B., 21/22 Edw. I, 499 et sqq.
[213] Coram Rege, Pasch. 1 Edw. II, m. 26: 'Postquam idem manerium ad
manus antecessorum predicti Maugeri deuenit usque ad tempus memorie,
videlicet temporibus regum Ricardi, Johannis et statum illum toto
tempore predicto pacifice continuaverunt et habuerunt.' Coram Rege, M. 5
Edw. II, m. 77: 'Unde queruntur quod cum ipsi homines et eorum
antecessores tempore Regum Anglie progenitorum domini Regis nunc,
videlicet tempore Regis Willelmi Conquestoris et Willelmi Regis filii
sui et eciam tempore Regis Henrici primi solebant tenere terras suas per
quaedam certa seruicia videlicet,' etc.
[214] I will here cite Bract. Note-book, pl. 1237, as an instance,
although there is hardly any call for quotation on this point.
[215] Law of Copyhold, 8. Cf. the same author's Tenures in Kent, 182.
[216] Blackstone, Law Tracts, ii., especially pp. 128, 129.
[217] Bracton: 'liberi de condicione ... tenentes villenagium.' Britton:
'hommes de franc saunc.'
[218] Stoneleigh Reg., 75: 'Item si quis de voluntate et assensu domini
facto fine cum domino voluerit dare tenementum suum ad opus alicuius,
ueniet in curia cum virga et sursum reddet huiusmodi tenementum ad manum
domini sine carta ad opus ementis vel cui datur et ballivus domini
habitis prius herietis et aliis de iure domino debitis dictum tenementum
emptori seu cui dabitur et heredibus suis secundum consuetudinem manerii
habendum et tenendum liberabit in (cum _corr._?) virga. Et dictus
recipiens tunc faciet finem cum domino prout possunt conuenire.... Item
extraneus non debet vocari ad warantum in placito terre in curia de
Stonle quia sokemanni non possunt feoffare alios per cartas cum ipsi
nullas habeant de rege. Set si quos feoffauerint de licencia domini sine
carta, ipsos feoffant secundum consuetudinem manerii prout continetur in
rotulo curie de anno xx Regis Edwardi filii Regis Edwardi in placito
terre inter,' etc.
[219] Placitorum Abbrev. 233, Berks. Cf. Britton, i. 287, note c.
[220] Bracton, f. 7.
[221] Jurate et Assise, 45 Henry III, Placitorum Abbr., p. 150: 'Et
Galfridus de Praule bene cognoscit quod predictum manerium est antiquum
dominicum Dom. Regis set dicit quod predictum tenementum est liberum
tenementum ita quod assisa debet inde fieri.... Dicit enim quod ipse
feofatus est de predicto tenemento de quodam Willelmo Harold per cartam
suam quam profert.... Et juratores quesiti si antecessores ejusdem
Willelmi feofati fuerunt per cartam vel si aliquis de tenura illa unquam
placitaverunt per diversa brevia vel non, dicunt quod non recolunt.'
[222] Stoneleigh Reg., 12: 'Fuerunt eciam tunc quatuor natiui siue serui
in le lone quorum quilibet nouum mesuagium et unum quartronum terre cum
pertinenciis per seruicia subscripta videlicet leuando furcas, etc. ...
et debebant ... redimere sanguinem suum et dare auxilium domino ad
festum S^{ti}. Michaelis scilicet ayde et facere braseum Domini et alia
seruicia seruilia.' As to some details, see Dugdale, Antiquities of
Warwickshire, i. 176.
[223] Coram Rege, Pasch. 1 Edw. II, m. 26: '(Maugerus) defendit vim et
injuriam quando, etc. Et dicit quod qualitercunque iidem homines
asserant se et antecessores suos tenentes, etc. certa seruicia dominis
de Wycle antecessoribus ipsius Maugeri et sibi fecisse et facere debere,
quod omnes antecessores sui domini de eodem manerio extiterunt seisiti
de predictis hominibus et eorum antecessoribus tenentibus tenementa quae
ipsi modo tenent ibidem ut de uillanis suis taillabilibus alto et basso
ad voluntatem ipsorum dominorum et redempcionem sanguinis et alia
villana seruicia et incerta et villanas consuetudines faciendo a tempore
quo non extat memoria.... Et predicti homines dicunt quod ipsi sunt
tenentes de antiquo dominico, etc., prout curie satis liquet et quod
omnes tenentes in dominico Regis per certa seruicia et certas
consuetudines tenent et tenere debent, quidam per maiora et quidam per
minora secundum consuetudinem, set semper per certa,' etc. Coram Rege,
Mich. 5 Edw. II, m. 77, v: 'Nec dedici potest quia tenentes de antiquo
dominico certa seruicia et certas consuetudines tenentur facere et non
ad voluntatem dominorum.'
[224] Y.B., M., 15 Edw. II, p. 455: '_Bouser_: Auxint bien sont tenans
en auncien demesne ascuns vileins et ascuns autres come ailleurs et les
sokemans plederent par le petit brief de droit et les vileyns nient.
_Herle_: Il semble que assets est il traverse de votre brief, car vous
dites que vous tenez par certeyn service ... et il dit que vous estes
son vilein et que il et ses predecessors ont este seisiz de tailler vous
et vos auncestres haut et bas, etc. Et stetit verificare.' Cf. Bract.
Note-book, pl. 1230.
[225] Bracton, 209: 'Item est manerium domini regis et dominicum in
manerio, et sic plura genera hominum in manerio, vel quia ab initio vel
quia mutato villenagio.' The meaning of this badly worded passage is
made clearer by a comparison with f. 7: 'In dominico domini regis plura
sunt genera hominum; sunt enim ibi servi sive nativi ante conquestum, in
conquestu, et post, et tenent villenagia et per villana servitia et
incerta qui usque in hodiernum diem villanas faciunt consuetudines et
incertas et quicquid eis preceptum fuerit (dum tamen licitum et
honestum).... Est etiam aliud genus hominum in maneriis domini regis, et
tenent de dominico et per easdem consuetudines et servitia villana, per
quae supradicti (villani socmanni) et non in villenagio, nec sunt servi
nec fuerunt in conquestu, ut primi, sed per quandam conventionem quam
cum dominis fecerunt.' Cf. Elton, Tenures of Kent, 180.
[226] Fitzherbert, Abr. Monstrav. 3 (Pasch. 41 Edw. III). '_Kirt_: Les
tenements queux ils teignent fuerent en auncien temps entre les maines
les villeins queux deuirrent sans heire perque les tenements fuerent
seisies en maine le seigneur et puis le senescal le seigneur lessa mesme
ceux terres par rolle a mesme ceux ore tenants a tener a volunte del
seigneur fesaunt certain services; issint ne sont ils forsque tenants a
volunte le seigneur.'
[227] Natura Brevium, f. 105. Cf. 16.
[228] Y.B., 21/22 Edw. I, p. 499: 'Treis maners de gents.'
[229] Bracton, f. 209: Fitzherbert, Monstrav. 3 (Pasch. 41 Edw. III):
'_Belknap_: Mesmes les tenementz en auncien temps fuerent en mains le
petit sokmans, et eux fierent teux services comme gents de petits
sokemans fierent en auncien temps et eux les teignent comme gents de
petit sokmans.'
[230] Stoneleigh Reg., 32: 'Et quod in eodem manerio sunt diuerse tenure
secundum consuetudinem manerii illius totis temporibus retroactis
usitatam, videlicet quidam tenentes eiusdem manerii tenent terras et
tenementa sua in sokemanria de feodo et hereditate de qua quidem tenura
talis habetur et omni tempore habebatur consuetudo, videlicet quod
quando aliquis tenens eiusdem tenure terram suam alicui alienare
uoluerit, veniet in curiam coram ipso Abbate vel eius senescallo et per
uirgam sursum reddat in manum domini terram sic alienandam.... Et si
aliquis terram aliquam huiusmodi tenure infra manerium predictum per
cartam uel sine carta absque licentia dicti Abbatis alienauerit aliter
quam per sursum reddicionem in curia in forma predicta, quod terra sic
extra curiam alienata domino dicti manerii erit forisfacta in perpetuum.
Dicunt eciam quod quidam sunt tenentes eiusdem manerii ad voluntatem
eiusdem Abbatis. Et si quis eorundem tenencium terram sic ad voluntatem
tentam alienauerit in feodo, quod liceat dicto Abbati terram illam
intrare et illam tanquam sibi forisfactam sibi in perpetuum retinere.'
[231] A comparison of the data in the Stoneleigh Register and in the
Roll is given in App. VI. Cf. Bract. Note-book, pl. 834: 'Legales
homines de manerio de Havering.'
[232] Coram Rege, Mich. 5 Edw. I, m. 77: '(Juratores) quesiti si
predicti Margeria et alii et omnes antecessores a tempore quo non extat
memoria terras suas successiue de heredibus in heredes tenuerint uel
ipsi aut aliquis antecessorum suorum sunt vel fuerint aduenticii, dicunt
quod ignorant.'
[233] Court Rolls of King's Ripton, Augment. Off. xxiii. 94, m. 7:
'Memorandum quod concessum est Rogero de Kenlowe habendum introitum ad
Caterinam filiam Thome prepositi cum uno quarterio terre in villa de
Ryptone Regis pro duabus solidis in gersuma, ita tamen quod mortua dicta
Katerina ille qui propinquior est heres de sanguine predicte Katerine
gersumabit dictum quarterium terre secundum consuetudinem manerii et
ville.' A. r. r. Edw. xxiii, m. 8, v: 'Nicholaus de Aula reddit sursum
unam dimidiam acram terre ad opus Willelmi ad portam de Broucton.... Et
preceptum preposito respondere de exitibus eiusdem terre quia est
extraneus.... Johannes Arnold reddit sursum duas rodas terre ad opus
Hugonis Palmeri.... Et preceptum est quod ponatur in seysinam, quia est
de sanguine de Riptone Regis.'
[234] Court Rolls of King's Ripton, Augment. Off. xxiii. 94, m. 15:
'Curia de Kingsripton tenta die Jovis proxima post translacionem S^{ti}.
Benedicti anno r. r. E. xxix^n et dom. Joh. [abb. xv. Venit] Willelmus
fil. Thome Unfroy de Kingesripton et reddidit sursum in manibus
senescalli totum jus quod [habuit] in illis tribus acris terre in campis
de Kingesriptone quondam Willelmi capellani de eadem [villa ad opus
filiorum] Rogeri de Kellawe _extranei_ legitime procreatorum de Katerina
filia Thome prepositi que est de con[dicione sokemannorum?] _bondorum_
de Kingesripton.... Rogerus de Kellawe extraneus qui se maritauit cuidam
Katerine filie Thome prepositi de Kingesripton que est de nacione et
condicione eiusdem ville venit et petiit in curia nomine filiorum suorum
ex legitimo matrimonio exeuntium de corpore prefate Katerine illas vi
acras terre.... (Juratores dicunt) quod nichil inde sciunt nec aliquid
super isto articulo presentare volunt ad presens. Et sic infecto negocio
maximo contemptu domini et balliuorum suorum extra curiam recesserunt.
Et ideo preceptum est balliuis quod die in ... faciant de eisdem juratis
xl solidos ad opus domini.'
[235] Stoneleigh Reg., 30 (Edward II injunction): 'Et quidam forinseci
qui sokemanni non sunt auctoritate sua propria et per negligenciam dicti
Abbatis et conuentus, ut dicitur, a quibusdam sokemannorum illorum
quasdam terras et tenementa alienaverunt. Nos igitur super premissis
plenius certiorari uolentes assignavimus vos una cum his, quos vobis
associaveritis, ad inquirendum qui sokemanni huiusmodi terras et
tenementa ibidem alienauerunt huiusmodi forinsecis aut extrinsecis et
quibus,' etc. Cf. the Statute of 1 Richard II, Stat. 1. cap. 6. It was
altogether a dangerous transaction for the socmen, because they were
risking their privileges thereby. It must have been lucrative.
[236] Placitorum Abbrev., p. 270 (Coram Rege, Mich. 7/8 Edw. I): 'Et
eciam comperto in libro de Domesday quod non fit aliqua mencio de
sokemannis set tantummodo de villanis et servis et eciam comperto per
inquisicionem quod multi eorum sunt adventicii quibus tenementa sua
tradita fuerunt ad voluntatem dominorum suorum ... consideraverunt quod
predictus Galfridus eat inde sine die et quod predicti homines teneant
tenementa predicta in predicto manerio per servilia servicia si
voluerint, salvo statu corporum suorum, et quod de cetero non possunt
clamare aliquod certum statum et sint in misericordia pro falso clameo.'
[237] Bract. Note-book, pl. 1237.
[238] Bracton, f. 7.
[239] Dialogus de Scaccario, i. 10: 'Post regni conquisitionem, post
justam rebellium subversionem, cum rex ipse regisque proceres loca nova
perlustrarent, facta est inquisitio diligens, qui fuerint qui contra
regem in bello dimicantes per fugam se salvaverint. His omnibus et item
haeredibus eorum qui in bello occubuerunt, spes omnis terrarum et
fundorum atque redituum, quos ante possederant, praeclusa est; magnum
namque reputabant frui vitae beneficio sub inimicis. Verum qui vocati ad
bellum nec dum convenerant, vel familiaribus vel quibuslibet necessariis
occupati negotiis non interfuerant, cum tractu temporis devotis
obsequiis gratiam dominorum possedissent, sine spe successionis, sibi
tantum pro voluptate (voluntate?) tamen dominorum possidere coeperunt.
Succedente vero tempore cum dominis suis odiosi passim a possessionibus
pellerentur, nec esset qui ablata restitueret, communis indigenarum ad
regem pervenit querimonia, quasi sic omnibus exosi et rebus spoliati ad
alienigenas transire cogerentur. Communicato tandem super his consilio,
decretum est, ut quod a dominis suis exigentibus meritis interveniente
pactione legitima poterant obtinere, illis inviolabili jure
concederentur; ceterum autem nomine successionis a temporibus subactae
gentis nihil sibi vendicarent.'
[240] Stoneleigh Reg., 4 a: 'Que quidem maneria existencia in
possessione et manu domini regis Edwardi per universum regnum vocantur
antiquum dominicum corone regis Anglie prout in libro de Domesday
continetur.'
[241] 'Loquebantur de tempore S^{ti} Edwardi Regis coram W. de Wilton.'
[242] The men of King's Ripton.
[243] I do not think there is any ground for the suggestion thrown out
by M. Kovalevsky in the Law Quarterly, iv. p. 271, namely, that the law
of ancient demesne was imported from Normandy. Whatever the position of
the villains was in the Duchy, Norman influence in England made for
subjection, because it was the influence of conquest. It must be
remembered that in a sense the feudal law of England was the hardest of
all in Western Europe, and this on account of the invasion.
[244] Stubbs, Const. Hist. i. 454: 'In those estates, which, when they
had been held by the crown since the reign of Edward the Confessor, bore
the title of manors in ancient demesne, very much of the ancient popular
process had been preserved without any change, and to the present day
some customs are maintained in them which recall the most primitive
institutions.' I shall have to speak about the mode of holding the
courts in another chapter.
[245] Brunner, Entstehung der Schwurgerichte, has made an epoch in the
discussion of this phenomenon.
[246] I shall treat at length of the Norman Conquest in my third essay.
[247] Leg. Will. Conq. i. 29 (Schmid, p. 340).
[248] Thorold Rogers has made great use of this last class of manorial
documents in his well-known books.
[249] Bracton, 271 b.
[250] Bracton, 124.
[251] Cartulary of Malmesbury (Rolls Series), ii. 186: 'Videlicet quod
prefatus Ricardus concessit praedictis abbati et conventui et eorum
tenentibus, tam rusticis, quam liberis--quod ipsi terras suas libere pro
voluntate sua excolant.'
[252] As to the Warwickshire Hundred Roll in the Record Office, see my
letter in the Athenæum, 1883, December 22.
[253] Rot. Hundred. ii. 471, a: '_Libere tenentes_ prioris de
Swaveseia.... Henricus Palmer--1 mesuagium et 3 rodas terre reddens 12
d. et 2 precarias. _Servi_ Adam scot tenet 10 acras reddens 4 s. et 6
precarias.... _Cotarii_....'
[254] Rot. Hundred. ii. 715, a: 'In _servitute_ tenentes. Assunt et
ibidem 10 tenentes qui tenent 10 virgatas terre in _villenagio_ et
operantur ad voluntatem domini et reddunt per annum 25 s.'
[255] Rot. Hundred. ii. 690, 691: 'Villani--servi--custumarii. Et tenent
ut villani, ut servi, ut libere tenentes.' Rot. Hundred. ii. 544, b: 'De
custumariis Johannes Samar tenet 1 mesuagium et 1 croft ... per
servicium 3 sol. 2 d. et secabit 2 acras et dim., falcabit per 1 diem.
De servis. Nicholaus Dilkes tenet 15 acras--et faciet per annum 144
opera et metet 2 acras. De aliis servis ... De cotariis ... De aliis
cotariis.'
[256] Rot. Hundred. ii. 528, a: 'Henr. de Walpol habet latinos (_corr.
nativos_), qui tenent 180 acras terre et redd. 10 libr. et 8 sol. et 4 d.
et ob. Nomina eorum qui tenent de Henrico de Walpol in _villenagio_.'
Chapter House, County Boxes, Salop. 14, c: 'Libere tenentes ...
Coterelli ... Nativi.'
[257] Hale, in his Introduction to the Domesday of St. Paul's, xxiv,
speaks of the 'nativi a principio' of Navestock, and distinguishes them
from the villains. 'The ordinary praedial services due from the tenentes
or villani were not required to be performed in person, and whether in
the manor or out of it the villanus was not in legal language "sub
potestate domini." Not so the nativus.' Hale's explanation is not
correct, but the twofold division is noticed by him.
[258] Domesday of St. Paul's, 157 (Articuli visitationis): 'An villani
sive custumarii vendant terras. Item, an _nativi custumarii_
maritaverunt filias--vel vendiderint vitulum--vel arbores--succidant.' A
Suffolk case is even more clear. Registrum cellararii of Bury St.
Edmunds, Cambridge University Gg. iv. 4, f. 30, b: 'Gersumarius vel
custumarius qui _nativus_ est.... Antecessor recognovit se nativum
domini abbatis in curia domini regis.'
[259] Cartulary of Eynsham in Oxfordshire, MS. of the Chapter of Christ
Church in Oxford, N. 27, p. 25, a: 'In primis Willelmus le Brewester
_nativus domini_ tenet de dictis prato et terris...'
[260] Eynsham Cartulary, 49. b: 'Johannes Kolyns nativus domini tenet 1
virgatam terre cum pertinenciis in bondagio.'
[261] Cartulary of St. Mary of Worcester (Camden Series), 15. a:
'Nativi, cum ad aetatem pervenerint nisi immediate serviant
patri--faciant 4 benripas et forinsici similiter.' Survey of Okeburn,
Q.R. Anc. Miscell. Alien Priories, 2/2: 'Aliquis nativus non potest
recedere sine licencia neque catalla amovere nec extraneus libertatem
dominorum ad commorandum ingrediat sine licentia.'
[262] Domesday of St. Paul's, 80: 'Nativi a principio. Isti tenent
terras operarias.'
[263] Queen's Remembrancer's Miscellanies, 902-62: 'Rotuli de libertate
de Tynemouth, de liberis hominibus, non de nativis.'
[264] Queen's Remembrancer's Miscellanies, 902-77: 'Nativi de
Sebrighteworth (Proavus extraneus).' See App. X.
[265] Warwickshire Hundr. Roll, Queen's Remembrancer's Miscellaneous
Books, 29, 19, b: 'Johannes le Clerc tenet 1 virg. terre pro eodem sed
est libere condicionis.' Augment. Off., Duchy of Lancaster, Court Rolls,
Bundle 32, 283: 'Unum mesuagium et 19 acre terre in Holand que sunt in
manu domini per mortem W. qui eas tenuit in bondagio. Ipse fuit liber,
quia natus fuit extra libertatem domini.'
[266] Glastonbury Inquisitions of 1189 (Roxburghe Series), 48: 'Radulfus
niet tenet dimidiam virgatam.'
[267] Glastonbury Inquis. (Roxburghe Series), 26: 'Rogerus P. tenet
virg. terre: pro una medietate dat. xxx d. et pro alia medietate
operatur sicut neth et seminat dimidiam acram pro churset et dat
hueortselver.' Ibid. 22: 'Osbertus tenet 1 virgatam terre medietatem pro
ii sol. et dono et pro alia medietate operatur quecumque jussus fuerit
sicut neth.' Cartulary of Abingdon (Rolls Series), ii. 304: 'Illi sunt
neti de villa. Aldredus de Brueria 5 sol. pro dimidia hida et arat et
varectat et seminat acram suo semine et trahit foenum et bladum.' Ibid.
ii. 302: 'Bernerius et filius suus tenent unam cotsetland unde reddunt
cellario monachorum 6 sestaria mellis et camerae 31 d.'--'_De netis._
Robertus tenet dimidiam hidam unde reddit 5 sol. et 3 den. et arabit
acram et seminabit semine suo et trahet foenum et bladum. Hoc de netis.'
[268] Black Book of Rochester Cathedral (ed. Thorpe), 10, a:
'Consuetudines de Hedenham et de Cudintone. Dominus potest ponere ad
opera quemcumque voluerit de netis suis in die St. Martini. Et sciendum
quod neti idem sunt quod Neiatmen qui aliquantulum liberiores sunt quam
cotmen, qui omnes habent virgatas ad minus.'
[269] Cartulary of Shaftesbury, Harl. MSS. 61, f. 60: 'Et habebit unum
animal quietum in pastura, si est net, et de aliis herbagium. Et si idem
fuerit cotsetle debet operari 2 diebus.' Ibid. 59: 'Tempore Henrici
Regis fuerunt in T. 18 Neti sed modo non sunt nisi 11 et ex 7 qui [non]
sunt Nicholaus tenet terram [trium] et 4 sunt in dominico; et 7 cotmanni
fuerunt tempore Henrici Regis qui non sunt modo, quorum trium tenet
terram Nicholaus et 4 sunt in dominico.' Ibid. 65: 'Cotsetle ... debet
metere quantum unus nieth ... et debet collocare messem vel ... aliud
facere ... dum Neth messem attrahat ... pannagium sicut Neth.' Ibid. 89:
'Si moriatur cotsetle pro diviso dabit 12 d. et vidua tenebit pro illo
id divisum tota vita sua. Si moriatur neatus dabit melius catellum et
pro hoc tenebit quietus.'
[270] Glastonbury Inquis. 51: 'Et nieti tenent 9 acras unde reddunt 3
s.' Ibid. 47: 'Nieti habent unum pratum pro 5 s.'
[271] Glastonbury Inquis. 105: 'Ernaldus buriman dimidiam virgatam,
Iohannes burimannus dimidiam virgatam.' Cf. Custumal of Bleadon, p. 189;
Cartulary of Shaftesbury, Harl. MSS. 61, f. 45.
[272] It is to be found sometimes out of the Danish shires, e.g. in
Oxfordshire. Rot. Hundred. ii. 842, b: 'Bondagium: Johannes Bonefaunt
tenet unam virgatam terre de eodem Roberto ... reddit ... 11 sol. pro
omni servicio et scutagium quando currit 20 d.' Of course there were
isolated Danish settlements outside the Denelaw.
[273] Rot. Hundred. ii. 486, a: 'Tenentes Alicie la Blunde. _Bondi_, A.
habet in eadem villa 2 villanos, quorum quilibet tenet mesuagium cum 30
a. Id. Al. hab. 1 bondum qui ten. 20 a. _Custumarii_, Id. Al. habet 1
villanum, qui tenet 1 mes. cum 44 a.' Rot. Hundred. ii. 486, a: 'De W.
le Blunde. _Villani_, R. de Badburnham. _Bondi cotarii._' Cf. Ibid. 422,
b; 423, a: 'Libere tenentes ... Custumarii ... Bondi.'
[274] Ramsey Inquisitions, Galba, E. x. 34: 'W.L. tenet in landsetagio
12 a. pro 9 den. et ob. R. 24 a. de landsetagio et 12 a. de novo.'
Cartulary of Ramsey (Rolls Series), i. 426: 'G.C. dat dim. marcam ut K.
filius suus fiat heusebonde de 6 a. terrae de lancetagio.' Registr.
Cellararii of Bury St. Edmund's, Cambridge University, Gg. iv. 4, f.
400, b: '9 acre unde 4 a. fuerunt libere et 5 lancettagii.' Cartulary of
Ramsey (Rolls Series), i. 425: 'S. Cl. recognovit, quod 24 a., quas
tenet, sunt in lanceagio dom. Abbatis _salvo corpore suo_ et quod faciet
omnes consuetudines serviles ... _lancectus nacione_.'
[275] Domesday of St. Paul's, 17: 'Item omnes operarii dimidiae virgatae
debent invenire vasa et utensilia ter in anno ad braciandum.' Cf. 28.
[276] Rot. Hundred. ii. 422, 423. Cf. 507, a: 'Libere tenentes ...
Nicholaus Trumpe 3 a. terre cum mesuagio et red. per ann. 20 d.
Custumarii ... Nicholaus Trumpe ten. 1 a. terre et redd. 2 sol.'
[277] Exch. Q.R. Misc. Alien Priories, 2/2. (Chilteham): '... Redditus
villanorum de 126 villanis 41 libre, 14 s. 11 d. Item sunt 70 custumarii
qui debent arare bis per annum cum 17 carucis.... Item sunt 25 villani
qui debent herciare quilibet eorum per 2 dies,' etc.
[278] Cartulary of St. Peter of Gloucester (Rolls Series), iii. 203:
'Omnes consuetudinarii majores habebunt tempore falcationis prati unum
multonem, farinam, et salem ad potagium. Et minores consuetudinarii
habebunt quilibet eorum 1 panem et omnes 1 caseum in communi, unam acr.
frumenti pejoris campi de dominico et unum carcasium multonis, et unum
panem ad Natale.'
[279] Cartulary of Malmesbury (Rolls Series), i. 154, 155. Cf. i. 186,
187. Cartulary of St. Mary of Worcester (Camden Society), 43, b; Rot.
Hundred. ii. 775, b.
[280] Rot. Hundred ii. 602, a. Cf. Exch. Q.R. Alien Priories, 2/2: 'Item
sunt in eadem villata de Wardeboys 6 dimidias virgatas--que vocantur
Akermannelondes, quorum W.L. tenet 1/2 virgatam pro qua ibit ad carucam
Abbatis si placeat abbati vel dabit sicut illi qui tenent 6 Maltlondes
preter 15 d.' Rot. Hundred, i. 208: 'Utrum akermanni debent servicium
suum vel servicii redempcionem.'
[281] Registr. Cellararii of Bury St. Edmund's, Cambridge University,
Gg. iv. 4, f. 26: 'Gersumarii (Custumarii).... Gersuma pro filia sua
maritanda.' Ibid. 108, b: 'Tenentes 15 acrarum custumarii--omnes sunt
gersumarii ad voluntatem domini.' Cartulary of Bury St. Edmund's, Harl.
MSS. 3977, f. 87, d: 'Nichol. G gersumarius tenet 30 a. pro 8 sol. que
solent esse custumarie.' I may add on the authority of Mr. F. York
Powell that _landsettus_ (land-seti), as well as _akermannus_
(aker-maðr) and _gersuma_ (görsemi), are certainly Danish loan-words,
which accounts for their occurrence in Danish districts.
[282] Hale, Introduction to the Domesday of St. Paul's, xxv: 'If we
compare the services due from the Hidarii with those of the libere
tenentes on other manors, it will be evident, that the Hidarii of
Adulvesnasa belonged to the ordinary class of villani, their distinction
being probably only this, that they were jointly, as well as severally,
bound to perform the services due from the hide of which they held
part.'
[283] Eynsham Inquest, 49, a: 'Summa (prati) xvi a. et iv perticas que
dimidebantur xi virgatariis et rectori ut uni eorum et quia jam
supersunt tantummodo 4 virgatarii et rector, dominus habet in manu sua 7
porciones dicti prati.'
[284] Cartulary of Battle, Augmentation Office, Miscell. Books, 57, f.
35, s: 'Yherdlinges ... custumarii.' Ibid. 42, b: 'Majores Erdlinges
scil. virgarii. Halferdlinges (majores cottarii) Minores cottarii.'
[285] Black Book of Peterborough, 164: 'In Scotere et in Scaletorp--24
plenarii villani et 2 dimidii villani--Plenarii villani operantur 2
diebus in ebdomada.'
[286] Glastonbury Inqu. (Roxburghe Series), 23: 'Operatur ut alii
ferlingseti.'
[287] Glastonbury Inqu. (Roxburghe Series), 137: 'Cotsetle debent
faldiare ab Hoccade usque ad festum S. Michaelis.' Cartulary of St.
Peter of Gloucester (Rolls Series), iii. 71: 'Burgenses Gloucestriae
reddunt una cum aliis tenentibus ad manerium Berthonae praedictae per
annum de coteriis cum curtillagiis in suburbio Gloucestriae quorum
nomina non recolunt 29 solidos 7 d. de redditu assiso.' Ibid. iii. 116:
'Cotlandarii: Johannes le Waleys tenet unum mesuagium cum curtillagio et
faciet 8 bederipas et 3 dies ad fenum levandum, et valent 13-1/2 d.'
[288] Norfolk Feodary, Additional MSS. 2, a: 'Et idem Thomas tenet de
predicto Roberto de supradicto feodo per predictum servicium sexaginta
mesuagia; 21 villani de eodem Thoma tenent. Item idem Thomas tenet de
predicto Roberto 9 cotarios, qui de eo tenent in villenagio,' Cf. Rot.
Hundred, ii. 440, a.
[289] Cartulary of Battle, Augment. Office, Misc. Books, 57, f. 37, b:
'Virgarii ... Cotarii, qui tenent dimid. virgatam.' Ibid. 36, b:
'Cottarii majores et minores.'
[290] Glastonbury Inquis. (Roxburghe Series), 114: 'Rad. Forest. 1/2
cotsetland pro 18 d. et operatur sicut dimidius cotarius sed non
falcat.'
[291] Glastonbury Inquis. (Roxburghe Series), 14: 'Predictus W. habet
tres bordarios in auxilium officii sui. Illi tres bord. habent corredium
suum in aula abbatis, in qua laborant.' Terrae Templariorum, Queen's
Rem. Misc. Books, 16, f. 27: 'Unusquisque bordarius debet operari una
die in ebdomada.' Cf. 27, b.
[292] The history of the terms in Saxon times and the terminology of the
Domesday Survey will be discussed in the second volume. My present
object is to establish the connexion between feudal facts and such
precedents as are generally accepted by the students of Saxon and early
Norman evidence.
[293] Thorold Rogers, History of Agriculture and Prices, i. p. 71.
[294] Glastonbury Cart., Wood MSS., i. f. 225, b (Bodleian Libr.):
'Noverit universitas vestra me vendidisse domino Ricardo vicario de
Domerham Philippum Hardyng nativum meum pro 20 solidis sterling unde ego
personam ipsius Philippi ab omni nativitate et servitute liberavi.' Cf.
Gloucester Cartulary (Rolls Series), ii. 4. Madox, Formulare Anglicanum,
416, gives several deeds of sale and enfranchisement by sale. Dr. Stubbs
had some doubts about the time of these transactions, but deeds of sale
of the twelfth and thirteenth centuries occur, and are preserved in the
Record Office. See Deputy Keeper's Reports, xxxvi. p. 178.
[295] Glastonbury Inquis., tempore abb. Michaelis, Addit. MSS. 17,450,
f. 7: 'Petrus filius Margarete tenet virgatam terre .. nec potest filiam
suam maritare sine licentia domini vel ballivorum.' Cf. Cartulary of
Newent, Add. MSS. 15,668, f. 46: 'emit filiam suam.' Cartulary of St.
Peter of Gloucester (Rolls Series), iv. 219: 'Item, quod quilibet
praepositus habeat potestatem concedendi cuicunque nativae, ut possit se
maritare tam extra terram domini quam infra, acceptis tamen salvis
plegiis pro ea de fine faciendo ad proximam curiam; cum si forte
praesentiam ballivi expectasset in partibus remotioribus agentis casu
interveniente forte nunquam gauderet promotione maritali.'
[296] Cartulary of Christ Church, Canterbury, Harl. MSS. 1006, f. 55:
'Tenens de monday land, si filiam infra villam maritaverit 16 d. et si
extra homagium 2 sol.' Black Book of Coventry, Ashmol. MSS. 864, f. 5:
'Radulfus Bedellus de 10 hidis tenet 1 virgatam terre et prati. Et dabit
merchettam pro filia sua maritanda, si eam maritaverit extra villenagium
Episcopi.'
[297] Cartulary of Glastonbury, Wood MSS. i. (Bodleian), f. 111. s: 'Si
nul de neffes folement se porte de son corps parque le seignour perd la
vente de eux.'
[298] Warwickshire Hundred Roll, Queen's Rem. Misc. Books, No. 26, f.
26, a: 'Redempcio carnis et sanguinis et alia servicia ad voluntatem
domini.' Rot. Hundred. ii. 335, b: 'In villenagio 8 virgate terre quarum
quelibet debet ei per annum 6 s. vel opera ad valorem, tenentes etiam
illarum sunt servi de sanguine suo emendo ad voluntatem dicti Abbatis et
ad alia facienda, que ad servilem condicionem pertinent. In cottariis
cotagia 6 de eadem servitute et condicione.'
[299] How very difficult it was sometimes to decide the question,
whether merchet had been paid or not, may be seen from the following
instances:--Coram Rege, 27 Henry III, m. 3: 'Et non possunt inquirere
nec scire quod tempore Johannis Regis dederunt merchettum vel heryettum
sed bene credunt quod hoc fuit ex permissione ipsius Regis et non per
aliquam convencionem, quam fecerat eis pro predictis 50 libris.'
Cartulary of Ramsey (Rolls Series), i. 441: 'De merchetto nesciunt sine
majori consilio.'
[300] Y.B. 21/22 Edw. I, p. 107.
[301] Note-book of Bracton, pl. 1230.
[302] Gloucester Cartulary (Rolls Series), iii. 218: 'Item quod non
permittitur, quod aliquis vendat equum masculum vel bovem sibi vitulatum
sine licentia, nisi consuetudo se habeat in contrarium.' Rot. Hundred.
ii. 628, a: 'Si habeat equum pullanum, bovem vel vaccam ad vendendum,
dominus propinquior erit omnibus aliis et vendere non debent sine
licentia domini.' Rochester Cartulary (ed. Thorpe), 2, a: 'Si quis
habuerit pullum de proprio jumento aut vitulum de propria vacca et
pervenerit ad perfectam etatem, non poterit illos vendere, nisi prius
ostendat domino suo et sciat utrum illos velit emere sicut alios.' Rot.
Hundred. ii. 463, a: 'Item si ipse habeat pullum vel boviculum et
laboraverit cum illo non potest vendere sine licentia domini, sed si non
laboraverit licitum.'
[303] Cartulary of St. Mary of Beaulieu, Nero, A. xii. f. 93. b: 'Pro
filio coronando et pro licencia recedendi faciet sicut illi.' Cartulary
of St. Peter of Gloucester (Rolls Series), iii. 218: 'Item quod nullo
masculo tribuatur licentia recedendi a terra domini sine licentia
superioris hoc proviso, quod consuetudines a servis dominus debitas ad
plenum recipiat, contradicentes attachiando ut inde respondeant ad
curiam.'
[304] Duchy of Lancaster Court Rolls, Bundle 85, No. 1157 (Record
Office): 'Et quia non sunt residentes dant chevagium.' Lancaster Court
Rolls, Bundle 62, No. 750, m. 1: 'Johannes le Grust dat comiti ii
solidos et ii capones ut possit manere ubi sibi placuerit.'
[305] Lancaster Court Rolls, Bundle 62, No. 750, m. 3: 'Capones de
reditu ut custumarii possint manere super terram Radulfi de Wernore sed
dictus Will. erit in visu franciplegii dom. comitis.'
[306] Suffolk Court Rolls (Bodleian), 3: 'Preceptum inquirere nomina
eorum qui terram servilem vendiderunt per cartam et quibus, et qui sunt
qui terram liberam adquisierunt et ibi resident et prolem suscitant et
ob hoc libertatem sibi vindicant.' Cartulary of St. Alban's, 454: 'Ubi
villani emunt terras liberorum de catallis nostris.'
[307] Cart. Glouc. (Rolls Ser.), iii. 217: 'Item, inhibeatur nativis
domini manerii ne aliquid alicui dent per annum in recognitione, ut
aliquo gaudeant patrocinio.'
[308] Lancaster Court Rolls, Bundle 62, No. 756, m. 1: 'Nativus
receptatus apud Latfeld sine licentia domini.'
[309] Cartulary of Shaftesbury, Harl. MSS. 61, f. 59: 'Fugitivi domine,
R. fil. Al. manet in Br. sub Willelmo.' Ramsey Inqu., Galba E. x. f. 27,
b: 'Isti sunt nativi abbatis: E. et O. manent apud Gomcestre.' Ibid. 51:
'A. est nativus domini abbatis, sed dicit se esse hominem episcopi.'
Cartulary of Shaftesbury, Harl. MSS. 61, f. 59: 'Nicholaus habet 4
nativos domine, partim terram tenentes in calumpnia domine partim super
terram Nicholai.'
[310] Coram Rege, Pasch. 7 Edw. I, m. 7: 'Villanus fugitivus an in
villenagio tenens et adventicius.'
[311] Eynsham Inqu. (Chapter of Christ Church, Oxford), 25, a: 'Quas
Adam pater ipsius adquisivit et quia _quicquid servis adquiritur domino
adquiritur_ faciat inde dominus quod sibi videatur expediens.'
[312] Register of St. Mary of Barnwell, Harl. MSS. 3601, f. 60: 'Quidam
villanus de Bertone tenuit unum mesuagium de duobus dominis ...
_quicquid servus acquirit acquiritur domino suo_.'
[313] Black Book of Coventry, Ashmol. MSS. 864, f. 6: 'Et cum obierit,
dominus habebit suum melius animal et nihilominus habebit omnes equos
masculos, carrectam ferratam, ollum eneum, pannum laneum integrum,
bacones integros, omnes porcos excepta una sue, et omnes ruscos apium,
si qua hujusmodi habuerit.'
[314] Formulary of St. Alban's, Camb. Univ., Ee. iv. 20.
[315] Lancaster Court Rolls, Bundle 32, No. 283: 'Petrus filius Gerardi
nativus domini defunctus est et habuit in bonis domino pertinentibus
unam vaccam que appreciatur ad 5 sol. et venditur W. instauratori.'
Cartulary of Christ Church, Canterbury, Addit. MSS. 6157, f. 25, b: 'Et
sciendum, quod si quis custumarius domini in ipso manerio obierit,
dominus habebit de herietto meliorem bestiam. Et si bestiam non
habuerit, dabit domino pro herietto 2 sol. 6 d.'
[316] Cartulary of Battle, Augment. Off. Misc. Books, No. 57, f. 21, a:
'Et post mortem cujuslibet predictorum nativorum dominus habebit pro
herieto melius animal, si quod habuerit, si vero nullam vivam bestiam
habeant, dominus nullum herietum habebit ut dicunt. Filii vel filiae
predictorum nativorum dabunt pro ingressu tenementi post mortem
antecessorum suorum tantum sicut dant de redditu per annum.
[317] Gloucester Cartulary, iii. 193: 'Et post decessum suum dominus
habebit melius auerium ejus nomine herieti, et de relicta similiter. Et
post mortem ejus haeres faciet voluntatem domini, antequam terram
ingrediatur.'
[318] Gloucester Cartulary (Rolls Series), iii. 208: 'Dicunt etiam quod
relicta sua non potest in dicta terra maritari sine licentia domini.'
Cartulary of Christ Church, Canterbury, Add. MSS. 6159, f. 25, b: 'Si
autem per licenciam domini se maritaverit, heredes predicti defuncti
predictum tenementum per licenciam domini intrabunt et uxorem relictam
dicti defuncti de medietate dicti tenementi dotabunt.' Rot. Hundred. ii.
768, b: 'Item si obierit, dominus habebit melius auerium nomine herietti
et per illum heriettum sedebit uxor ejus vidua per annum et unum diem et
si ulterius vidua esse voluerit faciet voluntatem domini.'--The custom
in some of the manors of St. Peter of Gloucester was peculiar.
Gloucester Cartulary (Rolls Series), iii. 88: 'Matilda relicta
Praepositi tenet dim. virg. contin. 24 a. (8 sol.)--Et tenet ad terminum
vitae abbatis.... Et debet redimere filium et filiam ad voluntatem
domini.... Et si obierit, dominus habebit melius auerium nomine domini,
et aliud melius auerium nomine rectoris, et de marito cum obierit
similiter.' When the lord was an ecclesiastical corporation he not
unfrequently got two beasts, one as a heriot and the other as a mortuary
due to him as rector of the parish.
[319] Worcester Cartulary (Camden Series), 102: 'De antiquis
consuetudinibus villanorum, quaelibet etiam virgata dabit iii heriet,
sc. equum cum hernesio et duos boves, et dimidia virgata duos heriet,
sc. equum cum hernesio et bovem. Alii autem dabunt equum vel bovem.'
[320] Glastonbury Inqu. (Roxburghe Series), 89, a: 'Item non vendet
bovem vel equum de sua nutritura sine licencia domini, nec coronare
faciet filium nec maritabit filiam sine licencia domini, dabit heriettum
melius animal, faciet finem cum domino pro ingressu habendo ad
voluntatem domini communiter per 40 solidos et omnia alia faciet que
nativo incumbunt.' The relief ought to be discussed in connexion with
the obligations of the holding. I speak of it here because the documents
mention it almost always with the heriot.
[321] Cartulary of St. Mary of Beaulieu, Nero, A. xx. f. 84, b: 'Pro
filio coronando, filia maritanda, fine terre ... secundum qualitatem
personarum et quantitatem substancie et terre.'
[322] Rot. Hundred. ii. 747, a: 'Debet talliari ad voluntatem domini
quolibet anno.'
[323] Ibid. ii. 528, b: 'Et debet talliari ad voluntatem domini semel in
anno et debet gersummare filiam et fieri prepositus ad voluntatem
domini.'
[324] Cartulary of Battle, Augment. Off. Misc. Books, No. 57, f. 93, a:
'Amerciamenta tenentium, qui redditum tempore statuto non persoluerunt.'
Reg. Cellararii of Bury St. Edmund's, Cambridge Univ., Gg. iv. 4. 52, b;
cf. Eynsham Inqu. ii. a: (Inquisitio de statu villani): 'Subtraxerunt
sectam curie a longo tempore dicendo se esse liberos.'
[325] Formulary of St. Alban's, Cambridge Univ., Ee. iv. 20, f. 165, a:
'Servilia--videlicet secta curie de tribus septimanis in tres et secta
molendini.' We find it denied in the king's court that a free man can be
bound to do suit to the lord's mill; Bracton's Note-book, p. 161: 'Nota
quod liber homo non tenetur sequi molendinum domini sui nisi gratis
velit.'
[326] Bury St. Edmund's, Registrum album, Cambridge Univ., Ee. iii. 60,
f. 155, b: 'Liberi excepti a falda domini.'
[327] As to Scotale, see Stubbs, Const. Hist. § 165.
[328] Reg. Cellararii of Bury St. Edmund's, Cambridge Univ., Gg. iv. 4.
30, b: 'Per fidelitatem custumarii ... et per alias consuetudines
serviles.'
[329] Y.B. 20/21 Edward I, p. 41: 'Kar nent plus neit a dire, Jeo tenk
les tenements en vileynage, ke neit a dire ke, Jeo tenk les tenements
demendez ver moy a la volunte le Deen,' etc. See above, Chapter II.
[330] Chron. Mon. de Abingdon, ii. 25 (Rolls Series).
[331] Exch. Q.R., Misc. Books, No. 29, f. 8, a: 'Habet 22 servos
tenentes 35 acras terre ad voluntatem domini in servagio.' f. 10, b:
'Habet ibidem 25 servos tenentes 12 virgatas terre et dimidiam in
servagio ... et possunt omnes removeri pro voluntate domini.'
[332] Harl. MSS. 1885, f. 7: 'Volens autem dominus de Wahell retinere ad
opus suum totum parcum de Segheho ... abegit omnes rusticos qui in
predicto loco iuxta predictum boscum manebant.' Cf. Cor. Rege, Pasch. 14
Edw. I, Oxon. 9.
[333] Battle Abbey, Augment. Off. Misc. Books, 57, f. 21, a: 'Et
memorandum quod omnes supradicti nativi non possunt ... prostrare
maremium crescens in tenementis que tenent sine licencia et visu ballivi
vel servientis domini et hoc ad edificandum et non aliter.' Add.
Charters, 5290 '(transgressiones Stephani Chenore) ... fecit vastum ...
in boscis quos idem Stephanus tenuit de domino in bondagio cum de
quercis fraxinis pomariis et aliis arboribus vastos (ramos?)
asportavit.'
[334] Suffolk Court Rolls (Bodleian), 2, a: 'Rob. Gl. assertavit pomaria
sua et fecit wastum super vilenagium Comitis.'
[335] Suffolk Court Rolls (Bodleian): 'Quia Henricus bercarius plegios
non potuit invenire ad heredificandum mesuagium quod fuit W.C. et ibi
attractum suum facere.'
[336] Duchy of Lancaster Court Rolls (Record Off.), Bundle 32, No. 285:
'Emma ... venit et sursum reddit 1 cotagium et 5 acras et dimidiam terre
quas tenuit de domino in bondagio. Et venit Thomas filius ejus et capit
dictam terram et dat ad ingressum 10 solidos.' B. 62, No. 750:
'Galfridus percarius venit et tradidit terram suam ... domino comiti pro
paupertate. Robertus filius eius postea venit et finem fecit pro habenda
seisina dicte terre.'
[337] Duchy of Lancaster Court Rolls, B. 43, No. 484: 'Dicit etiam quod
dicta terra capta est in manu domini Edmundi pro redditibus et serviciis
inde a retro existentibus.' Essex Court Rolls, 3 (Bodleian): 'Preceptum
est capere in manu prioris totam residuam terram custumariam quam
Matildis le Someters predicta tenet de feodo prioris quia vendidit de
terra sua custumaria ... libere per cartam contra consuetudinem
manerii.'
[338] Glastonbury Inqu. (Roxburghe Series), 65; Gloucester Cartulary
(Rolls Series), iii. 196.
[339] Capitula halimoti, Bodleian MSS., Wood, i. f. 111, b: 'Si nul soit
en un graunt tenement e ne puisse les droitures de son tenement sustener
e un aultre homme en un petit tenement que meutz tendroit le graunt
tenement al prow le seigneur e le tenement.'
[340] Rot. Hundred, ii. 321, a: In villenagio tres virgatae et
dimidia.... Et sunt tenentes illarum servi de sanguine suo emendo.... In
libere tenentibus _pro certis serviciis_ per annum,' etc.
[341] Glastonbury Inquis. (Roxburghe Series), 21: 'Quantum quisque
teneat, omne ejus servitium; quis tenet libere et quantum et quo
servitio et quo guaranto et quo tempore; si aliqua terra fuerit facta
libera in tempore Henrici episcopi, vel postea, que debuit operari; quo
guaranto hoc fuit, et in quantum sit libera; si dominicum sit occupatum
vel foras positum in libertate vel vilenagio, et si ita fuerit domino
utilius sicut est vel revocatum.'
[342] Ibid. 130: 'J. clericus tenuit in tempore Henrici episcopi apud
Domerham unam virgatam quam adhuc tenet et aliam virgatam apud Stapelham
pro 10 solidis. Recepta villa de Domerham ad firmam, ipse propria
auctoritate dimisit virgatam de Stapelham et dimidiam virgatam in
Domerham in excambium cepit quia propinquior fuit. Hec dimidia virgata
operari solet, nunc autem est libera. Virgata vero de Stapelham post
illud excambium operari solet que ante hoc libera fuit.'
[343] Ibid. 121: 'De dono xxix solidi et vi denarii. Et de Anderdo
deficiunt vj den. quia tenet liberius quam predecessores sui solebant
tenere.'
[344] Ramsey Cartulary (Rolls Series), i. 364: 'De his septem hydis est
una _hyda libera_. De sex hydis, quae restant, tenet Marsilia filia A.
de R. duas virgatas ad censum. Quinque hydae et tres virgatae, quae
restant, tenentur _in puro villenagio_.'
[345] Galba, E. x. f. 38.
[346] Extensio de terris Roberti de Sto. Georgio (Lincoln) Inquis. p.
mort. 30 Henry III, No. 36: 'Idem habuit in _villenagio_ 13 bovatas
terre et 3 partes unius bovate que 9 rustici tenent et quelibet bovata
valet per annum 5 sol. pro omni servicio ... habuit in _liberis
serviciis_ unam bovatam quam Radulfus filius G. de eo tenuit per cartam
pro 2 solidis per annum pro omni servicio.'
[347] Bury St. Edmund's, Reg. Cellararii, Cambr. Univ., Gg. iv. 4, f.
32, a: 'W. de Bruare tenet i rodam custumarie et per alias consuetudines
serviles ... alteram libere et per servicium 2 denariorum.' Cf.
Gloucester Cartulary (Rolls Series), iii. 65.
[348] Battle Abbey, Reg. Augment. Off. Misc. Books, No. 57, f. 72, b:
'Isti prenominati (liberi tenentes) sunt quieti per redditum suum de
communibus servitiis, debent tamen herietum et relevium.' Glastonbury
Cart., Wood MSS., i. p. iii.: 'Si nul soit enfraunchi de ces ouveraignes
dont la uile le est le plus charge.'
[349] Ramsey Inqu., Galba, E. x. 39, d: 'Walterus abbas fecit R. francum
de terra patris sui que fuerat ad furcam et flagellum.... Multos de
servicio rusticorum francos fecit.' Ramsey Cartulary (Rolls Series), i.
487: '... quaelibet virgata de fleyland.' The same land appears as
'quaelibet virgata operaria quae non fuerit posita ad censum.'
[350] Spalding Priory, Reg., Cole MSS., vol. 43, f. 272: 'De tenentibus
terram operariam de priore in Spalding: W. de A. tenet 40 acras terre
pro quibus debet operari qualibet die per annum ad voluntatem Domini ad
quocumque opus Dominus voluerit, cum Carecta, Cortina, Vanga, Flagello,
Tribulo, Furca, Falce.' Coram Rege, Mich., 51/52 Henry III, m. b: 'Et
similiter predictus Petrus distringit eos pro consuetudinibus et
servitiis que nec antecessores eorum nec ipsi facere consueverunt ut cum
furcis et flagellis.'
[351] Eynsham Cartulary, Christ Church MSS., No. 97, f. 6, a: 'Willelmus
F. tenet unum cotagium et quartam partem unius virgate terre qui facere
consuevit pro rata porcione sicut virgatarius. Modo ponitur ad firmam
dum domina placet ad 6 solidos, 8 d.,' etc. Cf. Domesday of St. Paul's
(Camden Series), 81. This is in substance the difference between
'bondagium et husbandland,' Inquis. p. mort. 46 Henry III, No. 25;
Hexham Priory Cartulary (Surtees Series), p. xx.
[352] Domesday of St. Paul's (Camden Series), 49.
[353] St. Alban's Formulary, Cambridge Univ., Ee. iv. 20: 'Ne uno homini
plures terre tradantur, et si modo unus plures tenet, dividantur, si
commode et honeste fieri poterit.'
[354] Domesday of St. Paul's (Camden Series), 52; Duchy of Lancaster
Court Rolls, B. 62, No. 750: 'Et quia huiusmodi tenementum nullus potest
vendicare hereditarie ut de aliis villenagiis successive.'
[355] Hereford Rolls, 8 (Bodleian): 'Et concessum est ei tenere dictum
mesuagium et unam acram terre sibi et heredibus suis secundum
consuetudinem manerii per servicia inde debita et consueta.' Essex
Rolls, 8 (Bodleian): 'Amicia de R. que tenet ex consuetudine manerii.'
[356] Extractus Rotulorum de Halimotis, Cambridge Univ, Dd. vii. 22, f.
1, a.
[357] Essex Rolls, 8 (Bodleian), m. 6: 'Johannes filius W.B. venit et
clamavit unum mesuagium et quatuor acras terre cum pertinenciis ut jus
et hereditatem suam post mortem dicti W. patris sui faciendo inde
dominis predictis servicia debita et consueta nomine villenagii et dat
domino ad inquirendum de jure suo et si sit plene etatis et heres dicti
W. nec ne,' etc.
[358] Eynsham Cartulary, Christ Church MSS., No. 27, f. 11, b: 'Matildis
B. tenet de domino unum cotagium cum curtilagio in voluntate domini.'
Cf. Glastonbury Inqu. (Roxburghe Series), 66; Gloucester Cartulary
(Rolls Series), iii. 134; Domesday of St. Paul's (Camden Series), 23.
[359] Reg. Cellararii Mon. Bury St Edmund's, Cambridge Univ., Gg. iv. 4,
f. 52, b: '(Curia 7 Edw. II) ... dicunt quod quidam Robertus Heth pater
dictorum R.W. et J. tenuit de conventu per virgam in villa de Berton
magna ... Et quia dedixerunt cepisse dictam terram per virgam ideo
potest seisiri dicta terra in manum domini.' Registr. album vestiarii
abbatiae S. Edmundi, Cambridge Univ., Ee. iii. 60, f. 188, b: 'Tenentes
de mollond ... tenent per virgam in curia.' Eynsham Cartulary, Christ
Church MSS., No. 97: 'Ricardus W. tenet unum cotagium et duas acras
terrae campestres per rotulum curie pro 3 sol.' Cf. 12, a.
[360] Note-book of Bracton, pl. 1237.
[361] Ely Register, Cotton, Claudius, C. xi. f. iii. b: 'Habebit duas
pugillatas avene ex gratia, ut juratores dicunt, per longum tempus
usitata.'
[362] Warwickshire Roll, Exch. Q.R. No. 29, f. 94, b: 'Servus ... cum
fecerit exennium ... comedet cum domino.'
[363] Christ Church, Canterbury, Cartulary, Add. MSS. 6159, f. 22, b.
Cf. Gloucester Cartulary (Rolls Series), iii. 203.
[364] Custumal of Battle Abbey (Camden Ser.), 30: 'Et debet herciare per
duos dies ... pretium operis iiij. d. Et recipiet de domino utroque die
repastus pretii iij d. Et sic erit dominus perdens j. d. Et sic nichil
valet illa herciatio ad opus domini.'
[365] Coram Rege, Pasch., 14 Edw. I, Lege, 18: 'Villani circulare (sic)
non consueverunt nisi ex voluntate.'
[366] Glastonbury Inqu. (Roxburghe Series), 82: 'Sed non debet carriare
nisi dominus prestaverit suum plaustrum.'
[367] Cotton MSS., Claudius, C. xi, f. 30, b: 'Sed juratores dicunt quod
nunquam hoc fecerunt nec de iure facere debent.'
[368] Rot. Hundred. ii. 758, a: 'Servi ... nec potest filiam maritare
nec uxorem ducere sine licencia domini; debet et salvo contenemento suo
talliari et ad omnia auxilia communia scottare et lottare secundum
facultatem suam,' etc.
[369] Rot. Hundred. ii. 528, b: 'Et modo omnia illa arrentata sunt et
dant per annum 14 sol. 8 d.'
[370] Exch. Q.R. Min. Acc., Bundle 510, No. 13: 'Et solebant facere
servicia consueta, sed per voluntatem et ad placitum domini extenta sunt
in denariis.' Cf. Abingdon Cartulary, ii. 303. Rot. Hundred. ii. 453, a:
'Omnes isti prenominati nomine villenagii sunt ad voluntatem domini de
operibus eorundem,' Cf. Ibid. 407, b.
[371] Worcester Cartulary (Camden Series), 54, b: 'Haec villa tradita
est ab antiquo villanis ad firmam, ad placitum cum omnibus ad nos
pertinentibus.' Cf. Gloucester Cartulary, iii. 37.
[372] Worcester Cartulary (Camden Series), l. c.: 'Praeterea percipimus
medietatem proventuum et herietum, praeterea debent metere, ligare et
compostare bladum de antiquo dominico de Hordewell ... et gersummabunt
filias.'
[373] Glastonbury Cartulary, Bodleian MSS., Wood, i., f. 241, a:
'Jocelynus dei gratia Bathoniensis episcopus.... Noveritis nos quietos
clamasse omnes homines abbatie Glastonie de Winterburne in perpetuam de
arruris et aliis operacionibus quas facere debebant castro Marleberghe
de terra de Winterburne, quos homines nostros Henricus illustris rex
Anglie nobis concessit.'
[374] Wartrey Priory Cartulary, Fairfax MSS. f. 19, a: 'Et Adam dicit
quod predictus Prior villenagium in persona ipsius Ade allegare non
potest quia dicit quod dudum convenit inter quemdam Johannem dudum
priorem de Wartre ... et quendam Henricum de W ... patrem ipsius Ade
videlicet quod isdem Prior ... per quoddam scriptum indenturam
concesserunt Henrico ... quoddam toftum simul cum duabus bovatis terre.'
[375] Malmesbury Cartulary (Rolls Series), ii. 199: 'Nos tradidisse ...
Roberto le H. de K. et Helenae uxori suae, et Agneti filiae eorum
primogenitae nativis nostris, omnibus diebus vitae eorum, unam domum.
Ita quod non licet praedicto Roberto alicui vendere nec occasione istius
traditionis aliquam libertatem ipsis vendicare.'
[376] As to molmen, I shall follow in substance my article in the
English Historical Review, 1886, IV. p. 734. We already find the class
in Cartularies of the twelfth century, in the Burton Cartulary, and in
the Boldon Book. See Round in the English Historical Review, 1886, V.
103, and Stevenson, ibidem, VI. 332.
[377] Any number of examples might be given. I referred in my article to
a Record Office document, Exch. Treas, of Rec. Min. Acc. 32/8: 'Rogerus
prepositus tenet 28 acras pro 13 solidis solvendis ad 4 terminos
principales. Et dat 2 gallinas at Natale domini de precio 3 den., et 18
ova ad Pascham, et debet 2 homines ad 2 precarias ad cibum domini et non
extenduntur eo quod nihil dabunt in argento si servicium illud dominus
habere noluerit. Item idem adiuvabit leuare fenum ad precariam domini
quod nihil valet ut supra. Item idem faciet 2 averagia Londinium que
valent 2 d.... _Custumarii_. Johannes Cowe tenet 13 acras et dimidiam pro
27 d.... Et debet 3 opera qualibet septimana, scilicet per 44 septimanas
videlicet a festo Natali beate Marie usque ad gulam Augusti que continet
in operibus per predictum tempus vi^{xx}xii (i.e. 132) et valet in
denariis 5 sol.' etc.
[378] Black Book of St. Augustine, Canterbury, Cotton MSS. Faustina, A.
i. 31: 'De quolibet sullung (_ploughland_) 20 solidos de mala ad quatuor
terminos quos antecessores nostri dederunt pro omnibus iniustis et
incausacionibus (_sic_) quas uobis ore plenius exponemus.'
[379] Rochester Costumal (ed. Thorpe), 2, b: 'F. habet 21 jugum terre te
Gavelland unius servicii et unius redditus. Unumquodque jugum reddit 10
solidos ad 4 terminos--hoc est _Mal_. In media quadragesima 40 d. Hoc est
_Gable_.' The Cartulary of Christ Church, Canterbury, in the British
Museum (Add. MSS. 6159) always gives the rents under the two different
headings of _Gafol_ and _Mal_.
[380] The etymology of the word is traced by Stevenson, l. c.
[381] Ashley, Economic History, i. pp. 56, 57.
[382] Registrum Album Abbatiae Sancti Edmundi de Burgo, Cambridge
University, Ee. iii. 60 f.; 188, b: 'Memorandum quod anno regni Regis
Edwardi filii Regis Henrici 18--dominus Johannes de Norwold abbas Sti.
Edmundi ad ulteriores portas manerii sui de Herlawe, ad instanciam
Cecilie le Grete de Herlawe hereditatem suam de mollond infra campum
dicte ville jacentem post mortem viri sui a pluribus tenentibus Abbatis
petentis coram eodem Abbate, eo pretextu quod vir suus adventicius
dictam hereditatem suam ipsa invita vendidit et alienauit, per
subscriptos inquisivit, utrum ipse seu alii quicumque infra villam
predictam mollond tenentes libere tenuerunt seu tenent, et per cartas
aut alio modo.... Qui omnes et singuli jurati dixerunt per sacramentum
suum quod omnes _tenentes de molland solebant esse custumarii_ et
fuerunt, sed Abbas Hugo primus et Abbas Sampson posterum et alii
_Abbates relaxarunt eis seruicia maiora et consuetudines pro certa
pecunia_; modo arentati in aliquibus operibus ceteris, sed nihil habent
inde nec tenent per cartas, sed per virgam in curia. Et sunt geldabiles
in omnibus inter custumarios et quod omnes sunt custumarie et servilis
condicionis sicut et alii.'
[383] Exch. Treas. of Rec. 59/66. The classes follow each other in this
way: 'Liberi tenentes, Molmen, Custumarii.' Cf. Rot. Hundred, ii. 425,
a.
[384] Harl. MSS. 639, f. 69, b: 'Inquisicio facta per totam socam de
Badefeud dicit quod si aliquis servus domini moritur et plures habuerit
filios, si tota terra fuerit mollond primogenitus de iure et
consuetudine debet eam retinere; si tota fuerit villana iunior; si maior
pars fuerit mollond primogenitus, is maior pars fuerit villana iunior
eam optinebit.'
[385] I cannot surrender this point (cf. Stevenson, l. c.). That Borough
English existed in many free boroughs and among free sokemen is true, of
course, and there it had nothing to do with servile status. It would
have been wrong to treat the custom of inheritance as a sure test from a
general point of view. But as a matter of fact it was treated as such a
test from a local point of view by many, if not most, manorial
arrangements. I refer again to the case from the Note-book of Bracton,
pl. 1062. The lord is adducing as proof of a plea of villainage: 'Hoc
bene patet, quia postnatus filius semper habuit terram patris sui sicut
alii villani de patria.' I have said already that the succession of the
youngest son appears with merchet, reeveship, etc., as a servile custom.
[386] Q.R. Min. Acc. Box 587.
[387] Ramsey Cartulary (Rolls Series), i. 267: 'Decem hidae, ex quibus
persona, liberi et censuarii tenent tres hidas et dimidiam, et villani
tenent sex hidas.'
[388] Domesday Book, i. 204; Ramsey Cartulary, i. 270, 330-40.
[389] Rochester Cartulary (Thorpe), 2, a: 'Gavelmanni de Suthflete.'
[390] Cotton MSS. Tiberius B. ii, and Claudius C. xi.
[391] Cotton MSS. Claudius C. xi, f. 49, a: 'De hundredariis et libere
tenentibus. Philippus de insula tenet 16 acras de wara et debet sectas
ad curiam Elyensem et ad curiam de Wilburtone et in quolibet hundredo
per totum annum,' etc. For a more detailed discussion of the position of
hundredors, see Appendix.
[392] In the description of Aston and Cote, a submanor of Bampton,
Oxfordshire, _hundredarii_ are mentioned in Rot. Hundr. ii. 689.
[393] Leg. Henrici I, c. 7. The point has been lately elucidated by
Maitland, Suitors of the County Court, Eng. Hist. Rev., July 1888, and
Round, Archaeological Review, iv.
[394] Gloucester Cart. iii. 193: 'Et dicunt quod predictus Thomas et
socii sui subscripti debent aquietare villam de quolibet hundredo
Cyrencestriae et de Respethate praeterquam ad visum franciplegii bis in
anno.' Ramsey Inqu., Cotton MSS. Galba E. x, 35: 'Sequebatur comitatum
et hundredum pro dominico abbatis.' Madox, Hist. of the Exchequer, i.
74: 'Serviet eis nominatim in omnibus placitis ad quae convenienter
summonitus erit et ad defensionem totius villae Estone aderit in
hundredis et scyris in quibus erit quantum poterit.' Warwickshire Hundr.
Roll, Q.R. Misc. Books, No. 29, f. 73, a: 'Seriancia ad comitatum et
hundredum.'
[395] Ramsey Cart. i. 438: 'J.R. tenet dimidiam hydam de veteri
feoffamento et non reddit per annum aliquem censum abbati, quia est una
de quattuor virgatis quae defendunt totam villatam de secta comitatus et
hundredi per annum.'
[396] Gloucester Cart. iii. 77: 'Henricus de Marwent tenet unam virgatam
continentem 48 acras ... et facit forinseca [servitia], scil. sectas
comitatus et hundredi, et alia forinseca.' Cf. Cart. of Shaftesbury, 65.
'... defendebat terram suam de omnibus forinsecis avencionibus.'
[397] Seebohm, Village Community, 37, 38; Scrutton, Common Fields, 39.
[398] See the instances collected by Maitland, Introduction to Rolls of
Manorial Courts, Selden Soc., Ser. II, p. xxix, note 2.
[399] Maitland, op. c.
[400] A few instances among many: Gloucester Cart. iii. 49: 'Radulfus de
E. tenet unam virgatam terrae continentem 48 acras et reddit inde per
annum non reditum aliquem, sed sequetur comitatum Warwici et hundredum
de Kingtone pro domino, et curiam de Clifforde pro omni servitio.' There
are four other 'virgatarii liberi' besides this one. Domesday of St.
Paul's (Camden Soc.), 30: 'Thomas arkarius (tenet) iv virgatas pro 28
solidis et debet facere sectam sire et hundredi.' He is a freeholder.
Worcester Cart. (Camden Soc.), 64, C: 'De liberis Ricardus de Salford
tenet dimidiam hidam de priore, quam Thomas de Ruppe tenuit de eo, et
facit regale servitium tantum, et debet esse coram justiciariis
itinerantibus pro defensione villae ad custum suum.' The Ely
'hundredarii' are distinguished from the villains, and form by
themselves a group which ranks next to the 'libere tenentes' or with
them.
[401] Ramsey, Inqu. Cotton MSS. Galba, E. x, f. 52: 'Ecclesia ipsius
ville possidet dimidiam hidam liberam et presbiter debet esse quartus
eorum qui sequuntur comitatum et hundredum cum custamento suo.' Cf. 40,
54. Instead of attending separately the priest comes to be included
among the four hundredors.
[402] Britton, i. 177 sqq. See Maitland's Introd. to Manorial Rolls, p.
xxvii.
[403] Maitland, op. c. pp. xxix, xxx.
[404] Leg. Henrici I. c. 8.; Cf. Ely Register, Cotton MSS., Claudius, C.
xi, 52, a: 'et libere tenentes sui qui tenent per socagium debent unam
sectam ad frendlese hundred, scil. ad diem Sabbati proximum post festum
St. Michaelis.' The expression 'friendless' is peculiar. It appears in
other instances in the Ely Surveys. May it not mean, that all the free
tenants, even the small ones, had to attend and could not be represented
by their fellows or 'friends'?
[405] Glastonbury Cart., Wood MSS., i. f. 233, a: 'et N. et G. veniunt
et defendunt vim et iniuriam et talem sectam qualem ab eis exigit et
bene cognoscunt quod per attornatos suos debent ipsi facere duas sectas
per annum ad duos lagedaios ... sed si aliquis latro fuerit ibi
iudicandus tunc debent liberi homines sui et prepositi uel seruientes
sui debent interesse ad predictum hundredum ad faciendum iudicium et non
ipsi in propria persona sua.' Cf. Malmesbury Cart. (Rolls Ser.), ii.
178: 'Item recognouit sectam ad hundredum de Malmesburia per se vel per
sufficientem attornatum suum. Item recognouit et concessit quod omnes
liberi homines sui de Estleye sequantur de hundredo in hundredum apud
Malmesburiam sicut aliquo tempore predecessorum suorum facere
consueverunt.'
[406] This may possibly account for the curious fact, that in every
manor there are some tenants called 'Freeman,' 'Frankleyn,' and the
like. They seem to be there to keep up the necessary tradition of the
free element. For instance: Eynsham Cart. MSS. of the Chapter of Christ
Church, Oxford, xxix. f. 4, a: 'Iohannes Freman de Shyfford tenet unam
virgatam per cartam ... facit sectam ad comitatum et hundredum et hac de
causa tenet tenementum suum.' Cf. Coram Rege 27 Henry III, m. 3: 'Dicunt
quod non est aliquis liber homo in eodem manerio nisi Willelmus filius
Radulfi qui respondet infra corpus comitatus.' The fact is well known to
all those who have had anything to do with manorial records.
[407] Cf. Maitland, Suitors of the County Court, Eng. Hist. Review,
July, 1888.
[408] Is it not possible to explain by the 'hundredor' the following
difficult passage in Domesday, ii. 100? 'Hugo de Montfort invasit tres
liberos homines ... unus ex his jacet ad feudum Sancti Petri de
Westmonasterio testimonio hundredi, sed fuit liberatus Hugoni in numero
suorum hundredorum (_corr._ hundredariorum?) ut dicunt sui homines.' It
is true that the term does not occur elsewhere in Domesday, but the
reading as it stands appears very clumsy, and the emendation proposed
would seem the easiest way to get out of the difficulty.
[409] Y.B. 21/22 Edw. I. (ed. Horwood), pp. xix, 499.
[410] I may be excused for again referring to the Stoneleigh Reg. f. 32,
d: 'Quidam tenentes eiusdem manerii tenent terras et tenementa sua in
_Sokemannia in feodo et hereditate_ de qua quidem tenura talis habetur
et omne tempore habebatur consuetudo videlicet quod quando aliquis
tenens eiusdem tenure terram suam alicui alienare voluerit veniat _in
curiam_ coram ipso Abbate vel eius senescallo et per vergam sursum
reddat in manum domini terram sic alienandam ad opus illius qui terram
illam optinebit ... Et si aliquis terram aliquam huiusmodi tenure infra
manerium predictum per cartam vel sine carta absque licentia dicti
Abbatis alienaverit aliter quam per sursum reddicionem _in curia_ in
forma predicta, quod terra _sic extra curia_ alienata domino dicti
manerii erit forisfacta in perpetuum.'
[411] Madox, Exch. i. 724, e: 'Monstraverunt Regi homines et tenentes de
soca de Oswald Kirke in Com. Nottinghamiae, quod cum soka illa dudum
fuisset antiquum dominicum coronae Angliae et dominus Henricus quondam
Rex Angliae progenitor Regis socam illam cum pertinenciis dedisset et
concessisset Henrico de Hastyngges habendam et tenendam ad communem
legem ... Ac licet homines et tenentes predicti et antecessores sui
homines et tenentes de soca illa inter homines communitatis comitatus
Nottinghamiae et non cum tenentibus de antiquis dominicis Coronae Regis
a tempore escambii predicti talliari consueverunt, assessores tamen
tallagii Regis in dominicis in Comitatu Nottinghamiae praedicto ...
(eos) una cum illis de dominicis Regis praedictis talliari fecerunt.'
Cf. 428, b, c.
[412] Rot. Hundr. ii. 608, a: 'Liberi tenentes ... liberi sokemanni.'
Cf. 752, a.
[413] Inquisit. post mortem 53 Henry III, n. 4 (Record Office): 'Libere
tenentes ad voluntatem ... libere tenentes in socagio ... libere
tenentes per cartam.' Rot. Hundr. ii. 471, a. See Appendix xii.
[414] Warwicksh. Hund. Roll. Q.R. Misc. books, xxix. p. 44, b: '(tenens)
per antiquam tenuram sine carta.' Gloucester Cart. iii. 67: 'de liberis
tenentibus dicunt quod haeredes O.G. tenent tres virgatas terrae de
antiqua tenura.' Cf. iii. 47, 69. Christ Church Cart., Canterbury, Add.
MSS. 6159, p. 70: 'isti tenent antiquo dominico ... isti tenent antiquum
tenementum ... inferius notati sunt operarii.' Domesday of St. Paul's,
46, 47: 'de antiqua hereditate.' Cf. Pollock, Land-laws (2nd ed), p.
209.
[415] Rot. Hundr. ii. 501, b.
[416] Rot Hundr. ii. 774.
[417] Coram Rege, Hill. 30 Edw. I, m. 17 '(servicia sokemannorum) ...
merchet ad voluntatem.'
[418] Rot. Hundr. ii. 846, a.
[419] Rot. Hundr. ii. 781, b.
[420] Peterborough Cart., Cotton MSS., Faustina, B. iii. f. 97, 98.
[421] Spalding Priory Cart., Cole MSS., xliii. p. 296.
[422] Rot. Hundr. ii. 780 b.
[423] Spalding Cart. p. 295.
[424] Ibid. p. 283: '_bondus_ dat auxilium ... scil. omnes _sokemanni_
unam marcam.' Cf. 292.
[425] Ely Inqu., Cotton MS., Claudius, C. xi. 50, b: 'Tota villata tam
liberi, quam alii debent facere 40 perticatas super Calcetum de
_Alderhe_ [Aldreth's Causeway] sine cibo et opere.' Cf. Domesday of St.
Paul's, 75.
[426] Domesday of St. Paul's, 76, 77; Rot. Hundr. ii. 764, b.
[427] Domesday of St. Paul's, 32: 'Omnes isti libere tenentes metunt et
arant ad precarias domini et ad cibum eius sine forisfacto.' The general
rule is, that freeholders join only in the boon-works (precariae) and
not in the regular week-work. But socmen are found engaged in this
latter also.
[428] Ely Inqu., Cotton MSS., Claudius, C. xi. f. 266: 'De feodis
militum et libere tenentibus ... heriet ... relevium ... sed non dabit
tallagium et gersumam.' 167 b: 'herietum ... relevium ... pannagium ...
tallagium.' Ramsey Cart. i. 297.
[429] Gloucester Cart. iii. 49 and 46; Battle Cart., Augm. Off. Misc.
Books, N. 57, f. 10, b.
[430] Ely Inqu., Cotton MSS., Claudius, C. xi. f. 186, b: 'Omnes
custumarii preter liberos qui non dant gersumam pro filiis et filiabus
...'
[431] E. g. ibid. 44, a.
[432] Bury St. Edmund's Registrum Album, Cambr. Univ., Ee. iii. 60, f.
154, b: 'Et nota quod si prepositus hundredi capiat gersumam de aliquo
libero, dominus habebit medietatem.' Suffolk Court Rolls, 3 (Bodleian):
'gersuma si evenerit filii vel filie, finem faciet in hundredo, sed
celerarius habebit medietatem finis.'
[433] Rot. Hundr. ii 484, b; 485, a.
[434] Ibid. ii 749, b.
[435] Ibid. i. 6.
[436] Coram Rege, Trin., 3 Edw. I, m. 14, d.
[437] Rot. Hundr. i. 19.
[438] Cf. a very definite case of oppression, Placit. Abbrev., 150.
[439] Statutes of the Realm, i. 224.
[440] Notebook of Bracton, pl. 1334 and 1644.
[441] Rochester Cart. (Thorpe), 19 a: 'Dominus non debet aliquem
operarium injuste et sine judicio a terra sua ejicere.' Ibid. 10, a: 'in
crastino Sancti Martini non ponet eos (dominus) ad opera sine consensu
eorundem.' Black Book of St. Augustine, Cotton MSS., Faustina, A. i. f.
185, d: '(Consuetudines villanorum de Plumsted) Villani de P. tenent
quatuor juga et debent inde arare quatuor acras et seminare ... et
debent metere in autumpno 8 acras de ivernagio vel 4 acras de alio
blado.... Et debent falcare 2 acras prati.... Item debent duo averagia
per annum a Plumsted ad Newenton et nihil debent averare ad tunc nisi
res que sunt ad opus conventus et que poni debent super ripam.'
[442] Notebook of Bracton, pl. 1334: '... et consuetudo est quod uxores
maritorum defunctorum habeant francum bancum suum de terris
sokemannorum.' Rot. Hundr. i. 201, 202: 'habent et vendunt maritagia
sokemannorum aliter quam deberent, quia in Kancia non est warda.'
[443] Cf. Elton, Tenures of Kent.
[444] Notebook of Bracton, pl. 1419: 'et ipsi veniunt et dicunt quid
nunquam cartam illam fecit nec facere potuit quia uillanus fuit et
terram suam defendidit per furcam et flagellum.'
[445] Seebohm, Village Community, 103; followed by Scrutton, Commons and
Common Fields, 38; and Ashley, Economic History, i. 18.
[446] Maitland, Introduction to Manorial Rolls, lxix.
[447] Chandler, Court Rolls of Great Cressingham, p. 14: '20 solidi de
toto Homagio quia recusaverunt preparare fenum domini. Debitum ponatur
in respectum usque proximam curiam et interea scrutatur le Domesday.' A
manorial extent is evidently meant. Comp. Domesday of St. Paul's.
[448] Ely Inq., Cotton MSS., Claudius, C. xi. 60, a: 'Anelipemen,
Anelipewyman et coterellus manens super terram episcopi vel terram
alicuius custumariorum suorum metet unam sellionem in autumpno ex
consuetudine que vocatur luuebene.' Cp. 42, a, 'quilibet anlepiman et
anlepiwyman et quilibet undersetle metet dimidiam acram bladi,' etc.,
and Ramsey, Cart. i. 50.--I have not been able to find a satisfactory
etymological explanation of 'anelipeman'; but he seems a small tenant,
and sometimes settled on the land of a villain.
[449] Of course in later times the test applied in drawing the line
between freehold and baser tenure was much rather the mode of conveyance
than anything else. The commutation into money rent of labour services
due from a tenement 'held by copy of court roll' (a commutation which in
some cases was not effected before the fifteenth century), did not
convert the tenement into freehold; had it done so, there would have
been no copyhold tenure at the present day. But I am here speaking of
the thirteenth century when this 'conveyancing test' could not be
readily applied, when the self-same ceremony might be regarded either as
the feoffment by subinfeudation of a freehold tenant or the admittance
of a customary tenant, there being neither charter on the one hand nor
entry on a court roll on the other hand. Thus the nature of the services
due from the tenement had to be considered, and, at least in general, a
tenement which merely paid a money rent was deemed freehold.
[450] It should be observed that the word demesne (_dominicum_) is
constantly used in two different senses, (_a_) the narrower sense in
which it stands for the land directly occupied and cultivated by the
lord or for his use, and excludes the land held by his villain tenants,
and (_b_) the wider sense in which it includes these villain tenements.
The first meaning is that which the word usually bears in manorial
documents, in which the _dominicum_ is contrasted with the _villenagium_
or _bondagium_. But in legal pleadings and documents which state the
doctrine of the common law and the king's courts the villain tenements
are part of the lord's demesne, he is seised of them in his demesne (_in
dominico suo_). This discrepancy between what I may call the manorial
and the legal uses of the term deserves notice as an indication of the
imperfect adjustment of law to fact. I shall use the term in its
narrower sense.
[451] Eynsham Cartulary, MSS. of Christ Church, Oxford, N. 27, f. 1, a:
'Est una cultura nuncupata Shyppelond, et continet in toto septem acras
dimidiam acram et dimidiam rodam, et valet acra 4 d., et bis successive
seminatur.' Inqu. p. mortem 20 Henry III, N. 14 (Record Office):
'Extensio manerii de Remdun (Lincoln). Sunt ibidem 360 acre terre et
faciunt duas carucatas. Et seminata sunt per annum 240 acre ... De
waracto per annum 12 d.'
[452] Glastonbury Survey of 1189 (Roxburghe Ser.), 99: 'Idem tenet de
dominico tres acras a tempore Henrici episcopi quas colit in uno anno et
altero non.'
[453] Eynsham Cart., 1, a: 'Est ibidem prope alia cultura nuncupata
Clay-furlong et continet cum capitali inferiore octo acras unam rodam
tres perticas cum dimidia, et potest ter seminari successive, videlicet
post warectum ordium, anno sequente cum grosso pulstro et anno tercio
cum frumento, et valet acra 8 d.... (Alia cultura) et potest ter seminari
ut supra mutato grosso pulstro in pisas.'
[454] Two husbandry treatises were chiefly in use in mediaeval England.
The fourteenth-century MS., Merton College 91, contains both, and both
mention the two systems. (Modus qualiter balliui et prepositi debent
onerari super compotum reddendum et qualiter manerium custodiri), f.
152: 'E la vu les chaumps sunt semez e parti en deus, le iuernage e le
trameys sunt tous semez en un champ.'--(Maior husbonderia, otherwise
Walter of Henley's treatise), f. 155: 'Si les terres seent partiz en
iii, la une partie en le yuernage, lautre partie en le quaremel, e la
tierce partie a warect, donqes est la charrue de terre de x^{xx} acres'
(sic, corr. ix^{xx}). 'E si vos terres seent partez en ii, com sont en
plusurs pays, la une partie a yuernage e a quaremel, e lautre partie a
waret, donqes serra la charue de terre de viii^{xx} acres.' Cf. Thorold
Rogers, Six Centuries, 75.
[455] Fleta, ii. 72.
[456] Malmesbury Cart. (Rolls Ser.), ii. 186: 'De terris inbladandis et
inhoc faciendis in campis de Brokeneberewe et de Burestone, a ponte de
Jule-brocke usque ad Halbrigge de Bremelham, ubi dictus Ricardus dicebat
se habere communam, ita quod nec abbas et conventus, nec eorum tenentes
possint inhoc facere sine consensu dicti Ricardi, nec pro voluntate sua
terras suas ibidem inbladare ... Abbas et conventus concesserunt
praedicto Ricardo ... ut cum terrae prenominatae inbladatae fuerint et
blada a terris amota, liberam et plenam communam in praefatis terris una
cum abbate et suis hominibus (habeat) sicut ipse vel praedecessores sui
unquam melius et plenius habere consueverunt.... Ita quod si de campo
predicto in quo factum est inhoc pars quaedam remaneat inculta sine
blado, in eadem parte habebunt predictus Ricardus et heredes sui
communam cum abbate et conventu et suis. Similiter si villani praedicti
Ricardi nolint inhokare terras suas infra praedictum inhoc sitas,
habebunt liberum ingressum et egressum ad warectandum eas.'
[457] Coram Rege, Hill. 3 Edw. I, m. 17, d: 'Item quicumque facit
inheche scilicet excolit warectum frumento, ordeo vel auena, dabit pro
qualibet acra unum denarium, excepta una acra quam habere debet
quietam.' See App. xii.
[458] Gloucester Cart. iii. 35, 36: 'Omnes dictae particulae jacent pro
uno campo, summa 174 acre arabiles, etc.... Et de predicto campo possunt
inhokari quolibet secundo anno 40 acre et valet inde commodum eo anno 10
solidos.... De dictis 63 acris possunt quolibet secundo anno inhokari 20
acre, et valet inde commodum eo anno 11 sol. 8 d.... Et est summa totalis
omnium acrarum arabilium 412. Et est summa dictarum acrarum in valore
denariorum 9 librae 12 solidi. De quibus subtracta tertia parte pro
campo jacente ad warectum, 64 sol. scilicet, remanent ad extentam annuam
de puro 6 librae 8 sol. et de commodo terrae quae singulis annis potest
inhokari 15 sol. 10 d.'--Cf. Minor husbanderia, Merton Coll. MS. 91, f.
152: 'E si li ad Inhom, i deit veer quele cuture i prent del Inhom, e de
quel ble est seme checune cuture, e tel semail deit il cuiler tut per ly
e respondre tut per ly, hors des autres blees.'
[459] Cart. of Boxgrave, Cotton MSS., Claudius, A. vi. p. 2: 'Debet
compostare unam helvam ad frumentum et aliam ad ordeum.' Essex Court
Rolls (Bodleian), 4: 'Milencia Tegulatrix posuit fimos in communa ad
nocumentum custumariorum.' Glastonbury Inquest of 1189 (Roxburghe Ser.),
141: 'A. de N. occupavit quendam mariscum per concessum Roberti abbatis
et illum marliavit et coluit.' Cf. Domesday of St. Paul's (Camden Ser.),
8: 'Dicunt eciam quod emendatum est manerium in 50 acris marlatis per
Willelmum Thesaurarium ad summam 10 solidorum.' Ib. 21.
[460] Malmesbury Cart. (Rolls Ser.), ii. 27: 'Concessimus ... Roberto
filio Roberti ... illam virgatam terre quam A. de C. tenuit in campis,
scilicet in uno campo 21 acras et in alio campo 21 acras.'
[461] Gloucester Cart., iii. 194: 'Robertus Abovetun tenet unam virgatam
terre continentem 44 acras in utroque campo.'
[462] Ramsey Register, Cotton MSS., Galba, E. x. 27, d: 'Radulfus tenet
11 seliones in uno campo et 5 in alio de vilenagio.' Worcester Cart.
(Camden Ser.), 62, a: 'Henricus clericus tenet unam virgatam, 16 acras
in uno campo et 14 in alio. Item tenet aliam virgatam similiter. T.T.
tenet unam virgatam, 15 acras excepto dimidio furtendello in uno campo
et 11 in alio. O. le E. tenet unam virgatam 13 a. et 1/2 in uno campo et
12 et dimidiam in alio. T. le F. tenet unam virgatam, 16 acras in uno
campo et 12 in alio.'
[463] As in Gloucester Cart., i. 246: 'Ecclesiam Omnium Sanctorum ...
cum omnibus pertinenciis suis, videlicet unam virgatam terrae, undecim
acras terrae in campo lucrabili.' Cf. 247.
[464] Dunstable Cart., Harleian MSS. 1885, f. 7, d: 'Postquam buttum
habuimus bis seminatio fuerit et non amplius, quia omnes ceteri non
excolunt ibi terram, sed at pascua reservant.'
[465] Eynsham Cart., Christ Church, Oxford, MSS., N. 27, f. 74, b:
'Placitum de Haneberge in recordo de banco de termino S^{ti} Trinitatis
anni xliij (Edw. III) ... Est quidam hamelettus vocatus Tilgerdesle
infra bundos ville de Eynesham, infra quem hamelettum tam in vastis quam
in terris, pratis et pasturis eiusdem hameletti iidem Johannes Smyth et
omnes alii habent communam cum omnibus averiis suis tanquam pertinens ad
tenementa sua que ipsi separati tenent in Hanberge, scilicet in vasto et
pastura quolibet anno per totum annum et in terris arabilibus post blada
messa et asportata quousque ... resemenentur et quolibet tercio anno
tempore warecti per totum annum eo quod omnes terrae arabiles infra
dictum hamelettum per duos annos continuos debent seminari et tercio
anno warectari, et in pratis post fenum levatum et asportatum usque ad
festum purificacionis beate Marie.... Et dicunt quod diversis vicibus
quibus predictus Abbas nunc queritur etc. diuerse parcelle terrarum
arabilium in hameletto predicto que tunc temporis warectare debuissent
per predictum abbatem et alios seminate fuerunt per quod ipsi tam in
parcellis illis sic seminatis que tunc temporis warectare debuerunt quam
in aliis vastis, pratis et pascuis hameletti predicti in communa sua cum
aueriis suis prout eis bene licuerit usi fuerunt ... Et predictus abbas
non cognoscit quod terre arabiles infra hamelettum predictum quolibet
tercio anno debent warectari, immo protestando quod eedem terre per tres
annos continuos debent seminari et quarto anno warectari.' The case is a
rather complicated one, because the persons claiming common are not
tenants of the Abbot but of the King. Still, their pretensions are
grounded on the customary order of farming in a hamlet belonging to the
manor of Eynsham, and this is the point which concerns us. Cf. Coram
Rege, Pascha, 25 Henry III: 'Abbas ... partitus fuit terras suas in tres
partes quae antea partitae fuerunt in duas partes.' See also Placit.
Abbrev. 153. The case is quoted by Scrutton, Common Fields, 57.
[466] Some of these expressions are interesting. _Balk_ is the O.N.
_bálkr_; _gora_ is the spear-head or its long triangular shape, O.E.
_gár_, O.N. _geírr_. These linguistic affinities have been pointed out
to me by Mr. F. York Powell.
[467] Alvingham Priory Cart., Laud MSS. 642 (Bodleian), f. 12. Cf.
Malmesbury Cart. ii. 294; Madox, History of the Exchequer, 258.
[468] Eynsham Cart., 5, a: 'I.I. virgatarius ... Idem tenet unam
selionem terre apud Blakelond non mensuratam.'
[469] Domesday of St. Paul's, 11: 'Laurencius de hospitale dimidiam
virgatam pro 40 denariis; tres acre quas tenuit Laurencius sine servicio
inveniri non possunt.'
[470] Dunstable Priory Cart., Harleian MSS. 1885, f. 7, d. See Appendix
xiii.
[471] Elton, English Historical Review, i. 435.
[472] The expressions are not identical, but they ought both to
correspond to the ploughteam.
[473] As to all this, see Seebohm, Village Community.
[474] Glastonbury Inqu. (Roxburghe Ser.), 144. v. Hide, virgate.
[475] Eynsham Cart., 4, a.
[476] Domesday of St. Paul's: 'Manerium istud secundum dictum juratorum
continet octo hidas, et hida continet sexcies viginti acras, set antiqua
inquisicio dixit, quod non consuevit continere nisi quater viginti, quia
postmodum exquisite sunt terre et mensuratae.'
[477] Inqu. post mort. 30 Henry III, N. 36: 'Extensio de terris Roberti
de Sancto Georgio (in com. Lincoln.) ... tenuit in capite de domino Rege
20 bovatas terre et dimidiam pro servicio sexte partis unius feodi
militis.... Et Robertus de Drayton tenet 2 bovatas et quartam partem
unius bovate terre de dicto Roberto per forinsecum servicium tantum,
unde 16 carucate terre faciunt feodum militis.'
[478] Rot. Hundred. ii. 631, b: '... et ad dictam villam pertinent sex
hide quarum quelibet continet 6 virgatas terre et quelibet virgata
continet 30 acras.' Ramsey Survey, Galba, E. x. 41: 'In una hydarum
istarum ... septem virgatae 4 acris minus.' Eynsham Cart., 21, a: 'Et
abbas habet in eodem manerio 4 carucatas terre et continent 16 virgatas
terre in dominico et in villenagio 16 virgatas terre.'
[479] Ramsey Cart. (Rolls Ser.), i. 55, 284, 295, 309, 333, 373, 380;
Ely Inqu., Claudius, xi. 82, 95, 97, 121, 129, 186; Gloucester Cart.,
iii. 128, 142, 145, 196; Coram Rege, Hill. 3 Edw. I, 17, b; Eynsham
Cart., 11, a; 88, a; Rot. Hundr., ii. 605, b.
[480] Chapter-house Boxes, A. 4/22, m. 31-33.
[481] Ramsey Cart. (Rolls Ser.), i. 354: 'Aliquando 48 acre faciunt
virgatam et aliquando pauciores.'
[482] Rot. Hundr., ii. 628, b.
[483] Glastonbury Inqu. (Roxburghe Ser.), 134: '... R. de W. unam
virgatam pro 4 solidis pro omni servicio quia terra parva est.'
[484] Ibid., 113: 'Super hanc virgatam terre fuerunt olim 2 domus et pro
duabus virgatis computata fuit terra illa, sed quia non potuerant 2
homines ibi vivere, redacte ille 2 virgate ad unam, et sicut audierant
dicere 7 solidi reddebantur, sed nunquam hoc viderunt et facit idem
servitium quod alii faciunt virgarii.'
[485] O.C. Pell in the Transactions of the Cambridge Archaeological
Society, vi. 17 sqq., 63 sqq.
[486] Ely Inqu., Claudius, C xi. 30, a.
[487] Duchy of Lancaster Court Rolls, B^{le} 62, N. 750; 3, b. Burton
Cartulary, Transactions of the Staffordshire William Salt Society, pp.
22, 28.
[488] Ely Inqu., 31, b.
[489] Burton Cart. (William Salt Ser.), 22, 28. Compare Peoples, Ranks
and Laws, cap. 3 (Schmid, p. 388).
[490] Peterborough Cart., Cotton MSS., Faustina, B. iii. 97: 'Libera
wara est unus redditus et est talis condicionis quod si non solvatur ...
dupplicabitur in crastino et sic in dies.'
[491] Beaulieu Cart., 103: 'Et inveniet hominem ad gurgitem faciendum et
waram.'
[492] Rot. Hundr., ii. 323: 'Tenementum quod non est hidatum nec
feodatum.'
[493] Ramsey Cart. (Rolls Ser.), i. 401: 'Terrae de Hulmo non sunt
distinctae per hydas vel per virgatas.' 413: 'Nescitur quot virgatae
faciunt hidam, nec quot acrae faciunt virgatam.' Cf. 405. Glastonbury
Inqu. (Roxburghe Ser.), 5: '... Nescit quantum amuntat in hida.'
[494] Ramsey Cart. i. 441: 'Terrae quae sunt extra hydam et quae non
dant hydagium.' 355: 'Virgatam extra hydam firmarius appropriavit.' 324:
'Ponere extra hydam.'
[495] Ibid. 473: 'Villata defendit, etc. versus Regem pro 10 hydis et
versus abbatem pro 11 hydis et dimidia.'
[496] Ely Inqu., Cotton MSS., Claudius, C. xi. 38, b: 'Plena terra que
facit 12 acras de ware.'
[497] St. Alban's Formulary, Cambridge Univ., E. e. iv. 20; f. 165, a:
'Item dicunt quod quando predictus Robertus fuerit mortuus quod dominus
habebit melius animal suum pro herieto et carettam suam ferro ligatam,
omnes pullos suos, omnes porculos suos, omnes pannos suos laneos, omnia
vasa sua argentea, aenea et ferrea. Et quod filius suus postnatus
habebit terram quam pater suus tenuit et dabit pro ingressu habendo
tantum quantum unus alius extraneus et faciet eadem seruilia (sic) que
et pater suus fecit.' Ramsey Cart., i. 372: 'Erit dicta terra post
mortem patris vel matris gersummata filio juniori vel propinquiori de
sanguine secundum consuetudinem ville.'
[498] Duchy of Lancaster, B^{le} 62, N. 750, m. 2: 'Siwardus cepit unam
hidam cum dimidia virgata terre et illam tenuit usque ad obitum uxoris
sue; postea venit idem Siwardus et rogauit Hugonem fratrem suum ut
auderet remanere in terra patris sui prenominati, quia fuit sine terra.
Et idem Hugo sibi concessit, saluo iure suo. Item Siwardus cepit uxorem
... de qua habuit Robertum, Radulfum et Gunnildam. Post obitum dicti
Siwardi venit Rogerus qui fuit filius Hugonis et exigebat terram
prenominatam et per consideracionem curie fuit seisitus in predicta
terra, set quia uxor dicti Siwardi pauper fuit, consideratum sibi fuit
ut haberet iv acras de predicta terra, quantum sibi custodiret. Postea
maritata fuit et revertebant predicte acre terre dicto Rogero ut de jure
suo pertinentes ad dictam virgatam terre.' Cf Q.R. Misc. 902/77.
[499] Black Book of St. Augustine's, Cotton MSS., Faustina, A. i. 15, a:
'In Taneto sunt 45 sullung 150 acre reddentes gablum denariorum. In
festo S^{ti} Martini videlicet de unoquoque sullung reddunt de Gabulo 2
solidos 2 denarios, summa quorum facit 25 libras 105 solidos 10 denarios
obolum. Ipsi qui tenent predictos sullung reddunt in equinoctio
autumpnae de unoquoque sullung pro horsarer 16 den. et de 150 acris 12
den. Ipsi idem arant pro anererthe in purificacione de unoquoque sullung
unam acram et 150 acris 3 virgatas. Ipsi idem reddunt in festo S^{ti}
Johannis de unoquoque sullung 2 agnos separabiles et de 150 acris 1
agnum et valenciam dimidii agni. Ipsi idem reddunt in natali de
unoquoque sullung unum ferendel ordei,' etc.
[500] Ibid. 60; Suolinga de Ores: 'Heredes Salomonis de Ores tenent 8
acras ... Heredes Willelmi de Ores tenent 12 acras ... Jacobus tenet 3
acras et dimidiam perchatam ... Thomas filius G. de Hores tenet 2 acras
... Ricardus et Salomon filius Augustini ... et Willelmus filius Ricardi
tenent 2 acras et dimidiam,' etc.
[501] Augment. Off. Misc. Books, N. 57, f. 96, a: 'Johannes Bairot
heredes Hamoni Daniel, heredes Johannis hugheleyn, heredes Roberti atte
mede, heredes Walteri et Willelmi Ram et Gilbertus le Rome tenent unum
jugum et dimidium de Cukulycumbe.'
[502] Domesday of St Paul's, 38 sqq. Comp. Ramsey Cart., i. 413.
[503] Gloucester Cart., iii. 213: 'Robertus Altegreue, Willelmus Godere,
Johannes Abraham, Isabella relicta Lucae tenent unam virgatam, scilicet
quilibet eorum unum quarterium et faciunt conjunctim in omnibus sicut
unus virgatarius.' Comp. 59 201. Hereford Court Rolls (Bodleian), 3, b:
'T. Hake, Ricardus de Poluchulle et Muriel filius Galfridi pyoner tenent
unam dimidiam virgatam terre consuetudinarie.'
[504] Bury St. Edmund's Cart., Cambridge University, G. g. iv. 4. f. 35,
a: 'Johannes Knop tenet cotagium et contribuit heredi qui tenet maiorem
partem tenementorum.'
[505] Inqu. post mort. 55 Henry III, N. 33: 'Redditarii qui vocantur
selfoders.'
[506] Exch. Q.R. Anc. Misc. Court Rolls, xxi. 513. 82: 'Dicunt quod
aliquis habens virgatam terre et vendiderit omnes partes excepto
capitati domo et loco focarii, tenentes locum focarii erunt sectatores
curie et alteri non. Similiter de tenentibus dimidiam virgatam et
codsetlestoftes: semper tenentes locum focarii colligent firmam et erunt
liberi de pannagio et de aliis tallagiis et alteri tenentes partes erunt
geldabiles.' (Curia de Brigstock tenta die veneris proxima ante festum
Sancti Andree Apostoli anno [r. r. Edw. xxvij]).
[507] See Hanauer, Les paysans de l'Alsace au Moyen Age.
[508] Domesday of St. Paul's, xv. 7; Gloucester Cartulary, iii. 55, 61;
Cartulary of Christ Church, Canterbury, Add. MSS. 6759, f. 21, b.
[509] Battle Cart. Augm. Off. Books, N. 18, f. 7, a: 'Aratra uertuntur
in terram domini.' Ely Inqu., Claudius, C. xi. 38 b, 86 b, etc.
[510] Ely Inqu., 72 b; comp. 24, b; Gloucester Cart., iii. 183.
[511] Eynsham Reg., 6, b: 'Robertus Tony tenet de domino unam virgatam
terre in bondagium ... Idem semel arabit cum vicino adiuncto.' Ramsey
Cart., i. 56. Comp. Q.R. Min. Acc., B^{le} 513, N. 97: 'Estimatur quod
communiter tres custumarii possunt facere unam carucam (tenent 20
acras).'
[512] Rot. Hundr., ii. 461, b: 'Robertus de Tony habet in villenagio
scil. Reginaldum Toni qui tenet 5 acras ... Item si ipse habeat cum uno
vel cum duobus sociis unam carucam, arabit unam selionem terre domini.'
Comp. 462, a. Add. MSS. 6159, f. 22, b: 'W.J. tenet de domino in
villenagio unum mesuagium et 10 acras terre.... Et arabit cum caruca sua
sive jungat sive non 4 acras.'
[513] Black Book of St. Augustine's, 53.
[514] Domesday of St. Paul's, 58.
[515] Augm. Off. Misc. Books, N. 57, f. 65, b. See Cartulary of Battle
Abbey (Camd. Soc.), p. 133.
[516] Ely Inqu., 185, a: '... tenent dimidium tenmanland, scilicet 60
acras terre ... Al. et M. et eorum participes tenent unum tenmanland,
scilicet 120 acras terre.' The expression may be corrupted from
t_u_nmanland, or else it may be a mark of a beginning of cultivation in
Danish times.
[517] Chapter-house Books, A. 4/22, p. 21: 'Custumarii tenent 22
virgatas quas vocant wistas.'
[518] Battle Abbey Cart., Augment. Off. Misc. Books, N. 57, f. 27, a;
comp. 15, b.
[519] Glastonbury Inqu. (Roxburghe Ser.), 66, 90.
[520] Worcester Cart., 41, b.
[521] Glastonbury Inqu., 67, 70; Rot. Hundr., ii. 404, b.
[522] Gloucester Cart., iii. 207.
[523] Abingdon Cart., ii. 304: 'In dominio camerae sunt 4 hidae uno
cotsettel minus.'
[524] Glastonbury Inqu., 41: 'Robertus blundus tenet dimidiam virgatam
eodem servicio. Hec terra solet esse divisa in duo cotsetlanda, set in
tempore werre deciderunt, eo ex his duabus terris facta fuit dimidia
virgata. Si esset divisa utilius esset domino.'
[525] Domesday of St. Paul's, 19; Ramsey Cart. (Rolls Ser.), i. 309.
[526] Gloucester Cart., iii. 61.
[527] Black Book of St. Augustine's, 57.
[528] Ibid.
[529] Domesday of St. Paul's, 49.
[530] Gloucester Cart., ii. 109.
[531] Exch. Q.R. Anc. Misc., xxi. 513/82 (Curia de Brigstock, Friday
after Annunciation, 27 Edw. I): 'Ille due dimidie rode prati ...
pertinent ad Hakermannislond, et nemo potest habere seysinam predictarum
sine breui Domini Regis.'
[532] Glastonbury Inqu., 2: 'In marisco 110 acras terrae et quoddam
molendinum, et octo deneratas terrae secus molendinum.'
[533] Madox, Exch., i. 155, n. 257: 'Duodecim tamen nummatas quas
Ordurcus tenuit ... usque ad 10 annos debemus tenere, singulis annis
reddentes ei 12 denarios ad festum S^{ti} Michaelis.'
[534] Eynsham Cart. 2, c: 'Est quoddam pratum nuncupatum Clayhurste et
continet de prato et pastura 35 acras dimidiam rodam 13 perticas. Est
ibidem ex parte australi una pecia prati et pasture et continet 10 acras
et 7 perticas et nuncupatur twelueacres que annuatim diuiditur in 12
parcellas per virgam equales, unde dominus habet uno anno i, iii, v,
vii, ix et xi, heredes le Freman et Walterus le Reue eodem anno habent
parcellas ii, iv, vi, viii, x et xii. Alio anno habet dominus parcellas
quas tenentes habuerunt et tenentes parcellas domini. Et sic annuatim
habet dominus quinque acras, tres perticas et dimidiam perticam.' Cf.
23, c: 'Memorandum quod in prato de Landemede sunt sex parcelle bundate
quarum prima parcella nuncupata Stubbefurlong continet 4 acras et
dimidiam rodam et est domini anno incarnacionis Domini impari et
tenencium anno incarnacionis Domini pari. Quandovero est tenencium,
diuiditur per sortem.'
[535] A very good instance is supplied by Williams, Rights of Common,
89, 90. Cf. Birkbeck, Sketch of the Distribution of Land in England, 19.
[536] Gloucester Cart. iii. 67 (Extenta de Berthona Regis): 'De pastura
separabili dicunt quod Rex habet quandam moram quae continet 4-1/2 acras
et valet 4 solidos et potest sustinere 12 boves per nouem menses. Item
de pastura inseparabili dicunt quod Abbas Gloucestriae debet invenire
pasturam ad 18 boves domini Regis, et ad 2 vaccas, et 2 afros, a vigilia
Pentecostes quousque prata sint falcata, levata et cariata.' Exch. Q.R.
Treas. of Rec. 59/69: 'item dicunt quod sunt ibi de pastura separabili
50 acrae et valet acra 3 d.'
[537] Eynsham Cart. 3, b: 'Dicunt eciam quod omnia prata pasture domini
et omnes culture non seminate et [que] deberent seminari sunt separalia
per tempus predictum.' 10, b: 'Et sunt dicte pasture separales quousque
blada circumcrescentia asportentur.' A curious case is the following;
ibid., 3, b: 'Dicunt eciam quod dominus tenetur pratum suum de
Langenhurst custodire nec potest attachiare malefactores in eodem a
solis ortu usque ad occasum, aliis temporibus ... licet, et est separale
a festo annunciacionis beate Marie usque gulam Augusti.'
[538] Domesday of St. Paul's, 69: 'Non est ibi certa pastura nisi quando
terre dominice quiescunt alternatim inculte.' Cf. 59: 'Non est ibi
pastura nisi cum quiescit dominicum per wainnagium ... possunt ibi esse
4 sues cum uno verre et suis fetibus et 4 vacce cum suis fetibus si
quiescunt pasture dominice alternatim.' Rot. Hundr. ii. 768, b: 'Item
porci eius et aliorum vicinorum suorum pascent in campis dominicis extra
tassum dum bladum domini stat in campis, et post bladum domini cariatum
ibunt in campis per totum et omnes alie bestie ejus et aliorum vicinorum
suorum pascent per totum in stipulo domini sine imparcamento.'
[539] Glastonbury Cart., Wood MSS. 1 (Bodleian), f. 182, b. Cf. f. 239,
240: 'Memorandum anni 1243 de amensuratione pasture ... dicunt precise
quod ad quamlibet hidatam terre in eadem villa pertinent 16 boues ad
terram excolendam, 4 vacce, 4 averia, 50 bidentes et 6 porci ... ad unam
virgatam terre pertinent 4 boues, et 2 vacce, et 1 auerium, et 3 porci
et 12 bidentes ad tantam terram colendam et sustinendam.' Leigerbook of
Kirkham Priory, Yorkshire, Fairfax MSS. 7, f. 8 a: 'Amensuratio pasture
de Sexendale facta anno regni regis Henrici filii regis Iohannis 36^{to}
... qui dicunt per sacramentum suum quod quelibet bouata terre in
Sexendale potest sustinere duo grossa animalia, 30 oues cum sequela
unius anni, duos porcos sine sequela et 3 aucas cum sequela dimidii
anni, et non amplius.'
[540] In a case of 1233 (Note-book of Bracton, 749) it is
complained,--'Cum idem Robertus non possit aliena aueria in pasturam
illam recolligere, scil. hominum alterius religionis,' etc.
[541] Note-book of Bracton, pl. 174: 'Dicunt eciam quod in manerio de
Billingiheie, sicut inquirere possunt, sunt 12 carucate terre tam in
certa terra quam in marisco predicto, scilicet sex carucate de certa
terra et sex carucate in marisco, et in Northkime sunt sex carucate
terre et quatuor bouate tam in certa terra quam in marisco predicto, set
nesciunt aliquam distinctionem quantum sit in certa terra et quantum in
marisco nec aliquid inquirere potuerunt de metis infra mariscos illos.'
[542] Note-book of Bracton, pl. 749: 'Robertus de Spraxtona summonitus
fuit ad warantizandum Abbati de Riuallibus 42 acras terre et pasturam ad
30 uaccas cum uno tauro et 48 boues et 40 oues cum pertinenciis in
Sproxtona que tenet et de eo tenere clamat, et unde cartam Simonis de S.
auunculi sui cuius heres ipse est habet,' etc.
[543] Note-book of Bracton, pl. 818: 'Et Saherus et Matillis per
attornatos suos ueniunt et dicunt quod semper, a conquestu Anglie usque
nunc communicauerunt cum eodem Roberto et antecessoribus suis in Locke,
et idem Robertus et antecessores semper communicauerunt in terris
ipsorum S. et M. in Gaham ... et unde dicunt quod si idem Robertus uelit
se retrahere de communa quam habet in terris ipsorum, ipsi nolunt se
retrahere et dicunt quod semper communicauerunt horn underhorn ... Et
Robertus uenit et dicit quod nec ipse nec antecessores unquam communam
habuerunt in Locke nisi post gwerram et per vim etc. scil. post gwerram
motam inter regem S. et homines suos.' Spelman renders the _horn
unherhorn_ by 'horn with horn,' but the editor of Bracton's Note-book
thinks, and I believe rightly, that the phrase means a common for all
manner of horned beasts. Brunner has translated it by
'gemeinschaftlich--durcheinander.'
[544] Rot. Hundr. ii. 605, e: 'In dicto manerio 1 magnus boscus qui
continet 300 acras in quo quidem bosco homines propinquarum villarum ut
Wardeboys, Wodehirst, Woldhirst, S^{ti} Ivonis, Niddingworth et
Halliwell communicant omnes bestias suos pascendo cum sokna de
Sumersham.' Note-book of Bracton, 1194: 'Iuratores dicunt quod mora illa
ampla est et magna et nesciunt aliquas divisas quantum pertinet ad unam
uillam, quantum ad aliam.' In the case of forest land many villages
enjoyed and still enjoy rights of intercommoning over a wide space. The
case of Epping is the familiar example.
[545] Eynsham Cart. 3, b: 'Dicunt eciam quod dominus et villata de
Shyfford intercommunicant cum villatis de Stanlake, Brytlamptone et
Herdewyk a gula Augusti usque festum S^{ti} Martini, cum villatis vero
de Astone Cote et Elcforde a festo S^{ti} Michaelis usque dictum festum
S^{ti} Martini.'
[546] Note-book of Bracton, pl. 914: 'Et Thomas venit et dicit quod
nullam communam clamat in Oure, set uerum uult dicere. Certe diuise et
mete continentur inter terram Prioris de Oure et terram ipsius Thome de
Merkwrthe et quamdiu placuit eidem Priori habere aesiam in terra ipsius
Thome in Markwrthe habuit ipse Thomas aesiam in terra ipsius Prioris de
Oure, et si Prior uult subtrahere se, ipse libenter subtrahet se.'
[547] The relation between this writ and the action 'quod reddat ei
tantam pasturam' is well illustrated by a case of 1230 (Note-book of
Bracton, pl. 392): 'Ricardus de Willeye et Iohanna de Willeye summoniti
fuerunt ad respondendum Willelmo de Kamuilla quo iure communam pasture
exigunt in terra ipsius W. in Arewe, desicut idem Willelmus nullam
communam habet in terris ipsorum Ricardi et Iohanne, nec ipsi Ricardus
et Johanna seruicium faciunt quare communam habere debeant,' etc.... 'Et
quia Willelmus cognoscit quod habet communam quantamcumque licet paruam,
consideratum est quod nichil capiat per breue istud et sit in
misericordia pro falso clamore et perquirat sibi per aliud breue sicut
per breue quod reddat ei tantam pasturam,' etc. One may say that the
_Quo Jure_ was an 'actio negatoria.'
[548] Note-book of Bracton, pl. 561: 'Et quia Simon non potest dedicere
quin terra illa ubi communa est sit de 1 feodo et una uilla,
consideratum est quod ipsa communicet cum eodem Simone in terra ipsius
Simonis,' etc.
[549] Scrutton, Commons and Common Fields, 42.
[550] Page 37.
[551] Bracton, f. 223, a: 'Non debet dici communia quod quis habuerit in
alieno ... cum tenementum non habeat ad quod possit communia pertinere,
sed potius herbagium dici debet quam communia, cum hoc posset esse
personale quid.'
[552] Bracton, f. 226, b: 'Item dicere potest quod nulla communia
pertinet ad tale tenementum, quia illud fuit aliquando foresta, boscus,
et locus vastae solitudinis et communia, et iam inde efficitur assartum,
vel redactum est in culturam, et non debet communia pertinere ad
communiam, et ubi omnes de patria solebant communicare.'
[553] Bracton, f. 229, a: 'Hoc non erit intelligendum quod omni tempore,
nisi tantum temporibus competentibus, scilicet post blada asportata et
fena levata, vel quando tenementum iacet incultum et ad waractum.'
[554] Bracton, f. 228, b: 'Item eodem modo si ita feoffatus fuerit quis,
sine expressione numeri vel generis, sed ita, cum pastura quantum
pertinet ad tantum tenementum in eadem villa, talem ligat constitutio
sicut prius cum expressione: quia cum constet de quantitate tenementi,
de facili perpendi poterit de numero aueriorum, et etiam de genere,
_secundum consuetudinem locorum_.'
[555] Scrutton, 55.
[556] Cartulary of Christ Church, Harl. MSS. 1006, p. 3: 'Prior et
conventus est capitalis dominus commune pasture de B.'
[557] Ely Cart., Cotton MSS. Claudius, xi, f. iii, a: 'In L. debet
villata communicare cum suis averiis propriis cum domino Episcopo. Et si
dominus voluerit, ibidem possunt habere extranei bestias pro denariis.
Set inde habebunt liberi homines de W. quemlibet septimum denarium
preter decimum.'
[558] Registrum cellararii of Bury St. Edmunds, Cambr. Univ., Gg. iv. 4,
f. 31, b: 'Et notandum quod inquisitio super calumpnia Egidii de
Neketona clamantis quod abbas non haberet communam infra precinctum
villate de Bertone scribitur in forma (tali),' etc.
[559] Cart. of Christ Church, Canterbury, Add. MSS. 6159, f. 21, b:
'Sciendum quod dominus potest habere in communia pasture de bosco cum
aisiamento friscorum et dominicorum domini tempore apto e bidentes per
maius centum.'
[560] Bracton, f. 228, b: 'Inprimis videndum est qualiter constitutio
illa sit intelligenda, ne male intellecta trahat utentes ad abusum ...
non omnes nec in omnibus per constitutionem restringuntur, et ideo
videndum erit utrum feoffati fuerint large, scilicet per totum, et
ubique, et in omnibus locis, et ad omnia averia et sine numero ... tales
non ligat constitutio memorata, quia feoffamentum non tollit licet
tollat abusum.'
[561] Note-book of Bracton, 1975.
[562] Note-book of Bracton, 1881. The marginal note runs: 'Nota quod
nichil includi poterit de forestis et moris licet minimum quid et quamuis
quaerens extra clausum habere possit ad sufficientiam.' And a little
higher the decision is marked as 'contra constitutionem de Merton.'
[563] See Scrutton, 63, 64.
[564] Bracton, f. 227, b: 'Quia multi sunt magnates qui feoffauerunt
milites et libere tenentes suos in maneriis suis de paruis tenementis,
et qui impediti sunt per eosdem quod commodum suum facere non possunt de
residuo maneriorum suorum.' Reference may also be made to a note on a
Plea Roll of 1221 (printed in L.Q.R. iv. 230), which shows that some
years before the statute the magnates complained that they were
prevented from assarting their pasture land by the claims of virgaters.
[565] This is directly stated by Bracton, f. 228, b; vide supra.
[566] Cartulary of Christ Church, Canterbury, Addit. MSS. 6159, f. 52,
b: 'Pastura ... de herbagiis cuiusdam vie inter curiam et ecclesiam de
Pritelwelle.' Domesday of St. Paul's, 1: 'Nulla est ibi pastura nisi in
boscis et viis.'
[567] Rot. Hundr. 613, b: 'Et omnes libere tenentes ... communicant in
bosco de A. cum omnibus bestiis suis libere per totum annum.'
[568] Eynsham Cart. 10, b: 'Est ibidem unus boscus ... cuius valor non
appreciatur pro eo quod minister regis non permittit includi si fiat
copicium, sufficiens tamen est pro housebote et heybote.' Gloucester
Cart. iii. 67: 'De boscis dicunt quod rex habet quandam costeram bosci
de fago juvene quae continet ad aestimationem 30 acras, unde rex poterit
approbare per annum dimidiam marcam, scilicet in subbosco et virgis ad
clausturam, et meremium ad carucas et alia facienda sine destructione,
et ille boscus est communis omnibus vicinis in herbagio.'
[569] Cart. of Christ Church, Canterbury, Add. MSS. 6159, f. 28, b:
'Boscus ibi est cuius medietas est ecclesie et medietatem clamant
tenentes illius denne, ut si dominus arborem unam accipiat, ipsi aliam
accipient.'
[570] Worcester Cart. (Camden Ser.), 62, b: 'Quaelibet virgata tenet 3
feorthendels de Bruera, et dimidia virgata 1 feorthendel et dimidium.'
[571] For instance, Madox, Exch. 1, 27, n. 47: 'Habebunt turbas
sufficientes in predicta mora ad focalium fratrum ... secundum
quantitatem terrarum suarum in eadem villa.'
[572] A very remarkable instance of the way in which rights of common
were divided and arranged between lords and villains is afforded by the
Court Rolls of Brightwaltham. Maitland, Manorial Rolls, Selden Soc. ii.
172. I shall have to discuss the case in the Fifth Chapter of this
Essay.
[573] Domesday of St. Paul's, 93: 'Potest wainnagium fieri cum 12 bobus
et quatuor stottis cum consuetudinibus ville.' 75: 'Item (juratores)
dicunt quod potest fieri wainnagium totius dominici cum 2 carucis bonis
habentibus 20 capita in jugo et 2 herciatoribus cum consuetudinibus
operariorum.'
[574] Add. MSS. 6159, f. 44, a: '(Leyesdon) ... debet quelibet caruca
coniuncta arrare unam acram et habebunt 3 denarios pro acra et
quadrantem.'
[575] Glastonbury Inqu. of 1189 (Roxburghe Ser.), 64: '(Virgatarius) a
festo S^{ti} Michaelis qualibet ebdomada arat unam acram donec tota
terra domini sit culta.'
[576] Ely Inqu., Cotton MSS. Claudius, c. xi. f. 185: 'Unusquisque
arabit per tres dies, si habeat sex boves; per duos, si habeat quatuor
boves; per unum, si habeat duos boves; per dimidium, si habeat unum
bovem.'
[577] Add. MSS. 6159, f. 53, a: 'Item debent predicte 22 virgate terre
arrare ad frumentum, ad auenam et ad warectum 113 acras et valent 56
solidos 6 denarios.'
[578] Gloucester Cart. iii. 92: 'Et quicquid araverit debet herciare
tempore seminis. Et faciet unam hersuram que vocatur landegginge et
valet 1 den.' iii. 194: 'Et debet herciare quotidie si necesse fuerit
quousque semen domini seminetur, et allocabitur ei pro operacione
manuali, et valet ultra obolum. Et quia non est numerus certus de diebus
herciandis, aestimant juratores 40 dies.'
[579] Ramsey Cart. i. 345: 'Qualibet autem septimana, a festo S^{ti}
Michaelis usque ad tempus sarclationis tribus diebus operatur,
quodcunque opus sibi fuerit injunctum; et quarto die arabit unum
sellionem, sive jungatur cum alio, sive non.'
[580] Glastonbury Inqu. of 1189, p. 64: 'A die circumcisionis similiter,
excepta ebdomada Pasche, si possit per gelu, et si gelu durat per 12
dies, quietus debet esse. Si amplius durat, restituet araturam.'
[581] Add. MSS. 6159, f. 49, b: 'Idem tenentes de predictis 22 et
dimidia (terris) debent arrare ad seysonam frumenti 45 acras de gable et
de qualibet terra 2 acras.' 35, b: '_Gauilherth_: Willelmus de Bergate
debet arrare dimidiam acram; Nicholaus de Jonebrigge et socii ejus unam
virgam; heredes Johannis 8 pedes; Ricardus Cutte 8 pedes ... Summa
acrarum 25 acre 1 pes. Hec debent arrare et seminare.'
[582] Rot Hundred, ii. 768, b: 'Item si habeat carucam integram vel cum
sociis conjunctam, illa caruca arabit domino 2 acras terre ad yvernagium
et herciabit quantum illa caruca araverit in die, et istud servicium
appellatur Greserthe, pro quo servicio ipse W. et omnes alii
consuetudinarii habebunt pasturas dominicas ad diem (_sic. corr._ a die)
ad Vincula S^{ti} Petri usque ad festum beate Marie in Marcio et prata
dominica postquam fenum fuerit cariatum.'
[583] Glastonbury Cart., Wood MSS. 1, f. 44, b: 'Tenens dimidiam hidam
habet 4 animalia in pascius quieta, et si plus habuerit--arabit et
herciabit pro unoquoque dimidiam acram.'
[584] Add. MSS. 6159, f. 26, b: 'De qualibet caruca arant unam acram de
averherde; et si per negligenciam alicujus remanserit acra non arata,
tunc mittet dominus semen quod sufficiat ad unam acram ad domum illius
et oportebit illum reddere bladum ad mensuram propinque acre et habebit
tum herbagium de acra assignata.' Cart. of Beaulieu, Cotton MSS. Nero,
A. xii, f. 102, b: 'Et si habeat bovem vel vaccam iunctam, arabit pro
quolibet virgo dimidiam acram ad festum S^{ti} Martini sine cibo.'
Glastonbury Inqu. of 1189, f. 116: 'De qualibet carruca debent arare ad
seminandum 7 acras, et ad warectum 7 acras, ut boves possint ire cum
bobus domini in pastura.'
[585] Exch. Q.R. Min. Acc. Bk. 514; T.G. 41, 173: '(Extenta manerii de
Burgo) medwelond ... debent arare tantam terram quantum habent de
prato.'
[586] Exch. Q.R. Min. Acc. Bk. 513, 97: 'Beinerth: 12 custumarii arabunt
6 acras terre ad semen yemale. Grasherthe: 12 arabunt cum quanto iungunt
per unum diem ad semen yemale.' Ely Inqu., Cotton MSS. Claudius, C. xi.
f. 30, a: 'Arabit de beneerthe si habeat carucam integram 3 rodas, et si
iungat cum aliis ipse et ille cum quo iungit assidue arabunt 3 rodas.'
Domesday of St. Paul's, 26: 'Et ad precariam carucarum arabit unam rodam
scil. quartam partem acre sine cibo.' Glastonbury Inqu. of 1189, p. 98:
'R. de Wttone tenet dimidiam hidam pro una marca et debet habere ad
preces per annum 12 homines et bis arare ad preces.'
[587] Gloucester Cart. iii. 115: 'Johannes Barefoth tenet dimidiam
virgatam terre continentem 24 acras ... et debet arare qualibet secunda
septimana a festo S^{ti} Michaelis usque ad festum Beati Petri ad
Vincula uno die ... Et praeterea debet quater arare in terra domini, et
vocantur ille arurae unlawenherþe.' Black Book of St Augustine's, Cotton
MSS. Faustina, A. i. f. 44: '... arare 18 acras ad frumentum de
godlesebene.'
[588] Ely Inqu., Cotton MSS. Claudius, C. xi, f. 45, a: 'Preterea idem
arabit de Lentenerþe dimidiam acram.'
[589] Ibid., 30, b: 'Item iste cum quanto iungit arabit de filstnerthe
eodem tempore (ante Natale) per unum diem ... Item arabit in
quadragesima tres acras et 3 rodas et araturam de filsingerhe (_sic_).
Item arabit in estate 3 acras et de beneerthe 3 rodas ut in hyeme, set
nihil arabit de filsingerþe.'
[590] Ibid., 35, a: 'Item per idem tempus arabit (ante Natale) dimidiam
acram pro fastningsede sine cibo et opere si habeat carucam integram. Et
si iungat cum aliis, tunc iste et socenarii sui cum quibus iunget
arabunt tantum et non amplius.'
[591] Custumal of Bleadon, 189.
[592] Gloucester Cart. ii. 134: 'Et facit unam aruram que vocatur
peniherþe et valet tres denarii, quia recipiet de bursa domini quartum
denarium.' Cf. ii. 162: 'Et praeterea faciet unam aruram que vocatur
yove (yoke?), scil. arabit dimidiam acram, et recipiet de bursa domini
unum denarium obolum, et valet ultra unum denarium obolum.'
[593] Gloucester Cart. iii. 80: '(Dimidius virgatarius) debet unam
aruram que vocatur radaker, scil. arare unam acram ad semen yemale, et
triturare semen ad eamdem acram, scil. duos bussellos frumenti.' On iii.
79 we have another reading for the same thing: 'Et arabit unam acram
quae vocatur Eadacre et [debet] triturare semen ad eamdem acram, et
valet arura cum trituracione seminis 4 denarios.' What is the right
term?--Ely Inqu., Cotton MSS. Claudius, C. xi. f. 133, a: 'Et arabit
qualibet die a festo S^{ti} Michaelis usque ad gulam Augusti dimidiam
rodam, que faciunt per totum quinque acras.... Et praeterea arabit unam
rodam de Rytnesse.'
[594] Add. MSS. 6159, f. 53, b: 'Item tota villata de Bocayng debet
falcare 12 acras prati et dimidiam, et valet 4 solidos.'
[595] Domesday of St. Paul's, 47: 'Et preter hec unaquaque domus hide
debet metere 3 dimidias acras avene et colligere unum sellionem
fabarum.'
[596] Gloucester Cart. iii. 84, 85: 'Ricardus Bissop tenet unum
messuagium et 10 acras terre ... (operabitur) in messe domini cum 24
hominibus.'
[597] Eynsham Cart. 88, b: 'Idem metet dimidiam acram bladi domini sine
cibo domini et valet opus 4 denarios et vocatur la bene. Idem faciet cum
uno homine beripam sine cibo domini et vocatur mederipe, et valet opus 4
den.... Idem veniet ad magnam bederipam domini ad cibum domini cum
omnibus famulis suis et ipse supervidebit operari in propria persona
sua. Quod si famulos non habuerit, tunc operabitur in propria
(persona).'
[598] Ramsey Cart. i. 488: 'Quaelibet domus habens ostium apertum versus
vicum tam de malmannis quam de cotmannis et operariis inveniet unum
hominem ad louebone.'
[599] Ely Inqu., Cotton MSS. Claudius, C. xi. f. 38, b: 'Ad precariam
ceruisie inveniet omnem familiam preter uxorem domus et filiam
maritabilem.... Quod si voluerint metere propria blada metent in suis
croftis et non alibi.'
[600] Domesday of St. Paul's, 75, 76: 'Et falcare dimidiam acram
sumptibus suis et postmodum falcare cum tota villata pratum domini ita
quod totum sit falcatum, et qualibet falx habebit unum panem ... et ad
siccas precarias in autumpno inveniet unum hominem, et ad precarios
ceruisie veniet cum quot hominibus habuerit ad cibum domini.' Cf. 61.
[601] Cart. of Battle, Augment. Off. Misc. Books, N. 57, f. 36, a:
'Quilibet virgarius ... debet invenire ad quemlibet precarium
autumpnalem ad metendum 2 homines et habebunt singuli singulos panes
ponderis 18 librarum cere et duo unum ferchulum carnis precii unius
denarii, si sit dies carnis et potagium ad primum precarium. Ad secundum
uero erit panis medietas de frumento et medietas ordei et cetera alia ut
supra. Ad terciam precariam erit panis totus de frumento et cetera ut
prenotatur. Ad quartam precariam quod vocatur hungerbedrip quilibet de
tenentibus domini preter Henricum de Chaus inveniet unum hominem ad
metendum et habebunt semel in die cibum, scil. panem et potum et unum
ferculum secundum quod serviens illius loci providere placuerit, et
caseum.'
[602] Ely Inqu., Cotton MSS. Claudius, C. xi. 166, b: 'Metet dimidiam
acram que vocatur þanc alfaker.' The name may possibly mean, that the
peasant earned the gratitude of the lord by ploughing the half-acre.
This construction would be supported by other instances of 'sentimental'
terminology. Cf. Warwickshire Hundr. Roll, Q.R. Misc. Books, N. 18, f.
94, b: 'Love-bene.' Cartul. of Okeburn, Al. Prior. 2/2, 17: 'Post
precarias consuetudinarias debet de gratia, ut dicitur, quocienscumque
precatus fuerit, (operare) per unum hominem.' Roch. Custum., ed. Thorp,
10, b: 'Et pro prato de Dodecote falcando, pro amore, non pro debito,
habebunt unum multonem et unum caseum de 4 d.'
[603] Gloucester Cart. i. 110: 'Idem Thomas cum virga sua debet
interesse operationibus quo ad metebederipas.'
[604] Glastonbury Inqu. of 1189, p. 91: 'Editha tenet unam mesuagium et
unam croftam pro 6 d. et fert aquam falcatoribus.'
[605] Add. MSS. 6159, f. 53, a: 'Item sunt in dicto manerio 22 virgate
et debent invenire in proxima septimana post festum S^{ti} Michaeli, per
unum diem a mane usque ad horam meridianam 44 carecta, ad fima domini
cariandum.' Domesday of St. Paul's, 62: 'Quod si boves non habuerit vel
alia animalia ad arandum faciet aliud opus quod jussum fuerit et educet
10 plaustra de fimo post Pascha et habebit dignerium de domino et infra
hundredum portabit unum plaustrum vel duas carectatas.'
[606] Ely Inqu., Cotton MSS. Claudius C. xi. 38, b: 'Averagium secundum
turnum vicinorum suorum curtum et longum.'
[607] Domesday of St. Paul's, 55: 'Rogerus dives ... cum villata ad
firmam portandam Londinium facit quantum requiritur de 20 acris.'
Glastonbury Inqu. of 1189, f. 97: 'Quater faciet summagium apud
Bristolliam.' Domesday of St. Paul's, 47: 'Preterea debet hida portare 4
summagia et dimidiam per totum ab horreo domini usque ad navem ter in
anno divisim.'
[608] Add. MSS. 6159, f. 28, a: 'Item de predictis cotariis unusquisque
habet unum horsacram et de ista acra debet unusquisque invenire unum
equum ad ducendum cum aliis frumentum de firma ad Cantuariam, et pisas,
et sal, et presencia portare.'
[609] Black Book of St. Augustine's, Cotton MSS. Faustina, A. 1, f. 186:
'Nihil debent averare ad tunc, nisi res que sunt ad opus conventus et
que poni debent super ignem.'
[610] Glastonbury Inqu. of 1189, f. 65: 'W. Sp. tenet unum fordil pro 15
den. et operatur quolibet die lune per totum annum et (debet) ladiare
cum alio ferdilario sicut dimidii virgatarii.' Domesday of St. Paul's,
19: 'Omnes isti (cotarii) debent operari semel ... Debent eciam portare
et chariare.'
[611] Rot. Hundr. ii. 605, b: 'Et faciet averagium super dorsum suum ad
voluntatem domini.'
[612] Glastonbury Inqu. of 1189, f. 71: 'Portat et fugat aucas, et
gallinas, et porcos Glastonie.' Domesday of St. Paul's, 27: '(Cotarii)
isti debent singulis diebus Lune unam operacionem et portare et fugare
porcos Londoniam.'
[613] Gloucester Cart. iii. 218: 'Item, quod nullus prepositus aliquid
ab aliquo recipiat, ut ipsum ad firmam esse permittat vel ad levem ponat
operationem mutando cariagia summagia debita in operibus manualibus.'
[614] See, for instance, Glastonbury Inqu. of 1189, pp. 22, 29;
Gloucester Cart. iii. 17; Domesday of St. Paul's, 54.
[615] Cart. of Bury St. Edmunds, Harl. MSS. 3977, f. 82: '(Debet) metere
pro porcis quilibet dimidiam acram siliginis.'
[616] Black Book of St. Augustine's, Cotton MSS. Faustina, A. 1, f. 44:
'Aratum hominum de N.' Cartul. of Battle, Augm. Off. Miscell. Books, N.
18, f. 2, a: 'Forinseca servicia ... arant ... seminant.'
[617] Domesday of St. Paul's, 38: '... et furem captum in curia
custodiet et iudicatum suspendet et sparget fimum ad cibum domini.'
Ibid. 62: 'G.G. tenet 5 acras ... (debet) qualibet septimana 2 opera et
sequitur precarias in autumpno ... R.H. 5 acras per idem servicium et
preterea defendit eas versus regem.'
[618] Gloucester Cart. iii. 54: 'Debet a festo S^{ti} Michaelis usque ad
festum S^{ti} Petri ad Vincula qualibet septimana per 4 dies operari
opus manuale cum uno homine, et valet quolibet dieta obolum.'
Glastonbury Inqu. 28: 'Si est ad opus a festo S^{ti} Petri ad Vincula
usque ad festum S^{ti} Michaelis nisi festum intercurrat qualibet die
faciet unam dainam.'
[619] Add. MSS. 6159, f. 25, a; 53, b.
[620] Domesday of St. Paul's, 33: 'Singule virgate debent per annum ...
de gavelsed 3 mensuras quarum 7 faciunt mensuram de Colcester.' Black
Book of St. Augustine's, Cotton MSS., Faustina, A. i, 31, d: 'Sunt
praeterea 5 sullungi et 50 acre in eadem hamiletto qui debent bladum de
gabulo.'
[621] Domesday of St. Paul's, 6: 'Et unum quarterium de auena ad
foddercorn.'
[622] Add. MSS. 6159, 26, b: 'Et de gadercorn reddunt de quolibet
swlinge 4 coppas de puro ordeo et de presenti gallum et gallinam de
qualibet domo ... quas serviens curie debet circumeundo querere.'
[623] Ely Inqu., Cotton MSS., Claudius, C. xi. 185, b; Bury St. Edmunds
Cart., Harl. MSS. 3977, f. 84, b.
[624] Glastonbury Inqu. of 1189, p. 67 (cf. 145): 'Henricus Wlde tenet
25 acras de prato pro stacha mellis. Utilius quod esset in manu domini.'
Gloucester Cart. ii. 128: 'Honilond T.T. tenet 6 acras terre pro 8
lagenis mellis vel pretio.'
[625] Ramsey Cart. i. 300: 'Faciet etiam unam mutam (leg. mittam) et
dimidiam braesii, quam recipiet in curia pro voluntate sua bene
mundatam, et per se ipsum, et illam carriabit apud Rameseiam. Quae si
refutetur, defectum ejus propriis sumptibus in omnibus supplebit, nisi
mensura sibi tradita sit minor.'
[626] Add. MSS. 6159, f. 26, b: 'De quolibet Swlinge duos agnos reddunt
in estate. Ita quidem quod serviens curie, si invenerit agnum in
sulungis illis qui ei placuerit, accipiat eum cuiuscumque sit, et ille
ad quem pertinebit adquietacionem. Quod si agnus inventus non fuerit 8
den. dabit quando mala persolvat.'
[627] Gloucester Cart. iii. 77: 'Walterus Fremon tenet 6 acras terrae
cum mesuagio et reddit inde per annum die Apostolorum Petri et Pauli
unum multonem pretii 12 den. vel ultra, cum 12 den. circa collum suum
ligatis.'
[628] Exch. Q.R. Treas. of Rec. 59 69: 'Capones ... pro warentia.'
[629] Gloucester Cart. iii. 71: 'Propter illam gallinam conquererunt
habere de bosco domini regis unam summam bosci, quae vocatur dayesen.'
Exch. Q.R. Min. Acc. Bk. 513, N. 97: 'Wodehennus ... ad Natale.' Suffolk
Rolls (Bodleian), 3: 'Dicet curia quod R. debet facere domino sicut alii
custumarii, scil. oues et gallinas, quia fodit etsi non pascat.' Ely
Inqu., Cotton MSS., Claudius, C. xi, f. 52, a: 'Redditus caponum per
annum pro aueriis tenmino pasche.'
[630] Domesday of St. Paul's, 51: 'Et ad pascha ova ad libitum tenencium
et ad honorem domini.'
[631] Glastonbury Inqu. of 1189, p. 35: 'Hoc est accrementum redditus
tempore Roberti; Ordricus pro 4 retiis terre altero anno 1 soccum.'
Gloucester Cart. iii. 79: 'Walterus de Hale tenet unam acram terre et
reddit inde per annum unum vomerem ad festum S^{ti} Michaelis pretii 8
den. pro omni servitio.'
[632] Warwickshire Hundr. Roll, Exch. Q.R. Misc. Books, N. 18, f. 2, a:
'Per servicium unius radicis gyngibrii ... unius rose.'
[633] Gloucester Cart. iii. 55: 'Omnes praedicti consuetudinarii ...
debent cariare molas, scil. petras molares ad molendinum domini, vel
dabunt in communi 13 den. quadrantem.' Rot. Hundr. ii. 750, b: 'Et modo
eorum servicia convertuntur in denariis.'
[634] Add. MSS. 6159, f. 53, a: 'Barlicksilver. Item debet Willelmus de
B. per annum 6 quarteria ordei et 6 quarteria auene,' etc.
[635] Roch. Custum. 4, a: 'Dabunt eciam denarium pro falce quod anglice
dicunt sithpeni.' Glastonbury Inqu. of 1189, p. 59: 'Et dabit 4 stacas
et dimidiam frumenti ad consuetudinem et eadem die 1 denarium illi qui
colligit fualia.' Ely Reg., Cotton MSS., Claudius, C. xi. f. 82, b: 'De
bosingsiluer 1 denarium ad festum S^{ti} Martini si habeat equum et
carectam.'
[636] Add. Charters, 5, 629: '(Stephanus) retraxit et abduxit porcos
suos tempore pannagii.'
[637] Rot. Hundr. ii. 453, a: 'Memorandum quod omnes isti prenominati
tam liberi quam villani qui habent bestias precii 30 den. dant domino
predicto per annum 1 den. pro quadam consuetudine que vocatur
Wartpenny.'
[638] What may be, for instance, the explanation of the _huntenegild_,
which not unfrequently appears in the records. E.g. Gloucester Cart.
iii. 22: 'Johannes Carpentarius et relicta Kammock tenent dimidiam
virgatam terrae et faciunt idem quod praescripti, exceptis huntenesilver
et gallina.' Add. MSS. 6159, f. 23, a: 'Ricardus atte mere tenet de
domino in villenagio 20 acras terre; reddit inde per annum de unthield
ad festum purificacionis 4 sol. 5 den. ob. et ad pascham 6 d. Et ad
festum S^{ti} Michaelis 17 denarios.' The payment is a very important
one and hardly connected with hunting.
[639] Domesday of St. Paul's, 140 (Inqu. of 1181): 'Keneswetha ... summa
denariorum 10 libre et 7 sol. et obolus.' Cf. xx.
[640] Battle Cart., Augment. Off. Misc. Books, N. 18, f. 5, a: 'Juga que
sunt in sex libris in Wy.'
[641] Christ Church Reg., Harl. MSS. 1006, f. 56: 'Newerentes.'
[642] Domesday of St. Paul's, 83: 'Inferius notati tenentes terras dant
landgablum. Et si habent uxores 2 denarios de havedsot quia capiunt
super dominium boscum et aquam et habent exitum, et si non habent uxorem
vel uxor virum, dabit unum denarium. Galfridus filius Ailwardi pro terra
quondam Theodori cui non attinet 5 denarios landgabuli.' Ramsey Inqu.,
Cotton MSS., Galba E. x. f. 46, b: 'S. de W. dat pro terra sua 16
denarios et 12 denarios pro se et uxore sua.' Exch. Q.R. Min. Acc. Bk.
587, T.P.R. 8109: 'Denarii ... ad existendum in warentia.'
[643] Archaeologia, xlvii. 127: '(Soke of Rothley) Gildi hoc est quietum
de consuetudinibus servilibus quae quondam dare consueverint sicuti
Hornchild et hiis similibus.'
[644] Glastonbury Inqu. of 1189, p. 4: '... unam virgatam et dimidiam et
5 acras pro 5 solidis de gabulo et 7 denariis de dono.'
[645] Glastonbury Inqu. of 1189, p. 39: 'Omnes simul dant de dono 40
solidos secundum terras quas tenent.' Ibid. 5: 'Debet dare de dono
quantum pertinet de quinque libris.' Ramsey Cart. i. 46: 'De denariis
qui vocantur 20 solidi dat dimidius virgatarius 6 denarios.'
[646] Ramsey Cart. i. 440: 'Villa dat 20 solidos, qui dantur quod cum
aliquis in misericordia domini, det ante judicium sex denarios, et post,
si expectet judicium, duodecim denarios, nisi sit pro furto, vel aliqua
maxima transgressione.'
[647] Gloucester Cart. iii. 78: 'Dicta terra consuevit dare de auxilio
14 denarios et obolum qui modo allocantur consuetudinario in solutione
octo marcarum.'
[648] Exch. Q.R. Treas. Rec. 20/68: 'Item debent domino ad festum S^{ti}
Michaelis auxilium ad placitum suum et ad forinsecum servitium.'
[649] Gloucester Cart. iii. 180: 'Et dabit pro terra 6 denarios ad
auxilium. Dabit etiam auxilium pro averiis suis secundum numerum
eorundem.' iii. 50: 'Et dabit auxilium secundum numerum animalium.' iii.
208: 'Et si impositum fuerit eidem quod in taxatione auxilii aliquod
animal concelaverit, potest cogi ad sacramentum praestandum et se super
hoc purgandum. Et si per vicinos suos convictus fuerit super hoc,
puniendus est pro voluntate domini.'
[650] Gloucester Cart. iii. 203: '... omnes isti consuetudinarii de
Colne dant in communi ad auxilium 46 solidos 8 denarios.' Rochester
Custumal, 4, a: 'De omnibus decem jugis debent scotare ad donum domini
ville et ad servicium domini Regis.'
[651] Domesday of St. Paul's, 64: 'Dicunt quod manerium de Berlinge
defendit se versus regem pro duabus hidis et dimidia ... Reddunt ... pro
hidagio baillivo hundredi de Reilee 31 denarios et 13 denarios de
Wardpeni, de quibus dominicum reddit de 20 acris 2 den. et obolem pro
hidagio et 2 denarios pro Wardpeni.'
[652] Exch. Esch. Ultra Trentam, 1/49: 'Pro cornagio de feodis militum
17 sol. 8 den.'
[653] Glastonbury Inqu. of 1189, p. 65: 'In die S^{ti} Martini debet
dimidiam dainam frumenti de cheriset.'
[654] Domesday of St. Paul's, 66: 'Beatrix relicta Osberti Casse tenet
15 acras et a festo S^{ti} Michaelis usque ad Vincula qualibet septimana
debet 3 operaciones nisi festum impedierit; quod si festum feriabile
evenerit in septimana die lune et aliud die mercurii, unum festum erit
ei utile, aliud domino. Quod si festum evenerit eadem septimana die
veneris, addito alio festo in alia septimana veniente, dividentur illi
duo dies inter dominum et operarium ut supradictum est.'
[655] Glastonbury Inqu. of 1189, p. 64: 'A festo S^{ti} Petri ad Vincula
debent qualibet ebdomada metere uel aliud opus facere usque ad festum
S^{ti} Michaelis nisi festum intercurrat, die lune, die martis et die
mercurii.' Ibid. 62: 'Ab Hoccadei usque ad festum S^{ti} Johannis
qualibet ebdomada arabit dimidiam acram, si possit propter duritiem.'
[656] Glastonbury Inqu. of 1189, p. 59: 'Willelmus filius Osanore
(tenet) unam virgatam eodem servitio, sed non potest perficere
servitium.'
[657] Domesday of St. Paul's, 51: 'Et omnes alii similiter operabuntur
sive plus teneant sive minus, pro racione 5 acrarum.' Glastonbury Inqu.
of 1189, p. 104: 'W. de H. tenet unam virgatam pro dimidia virgata ...
pro alia virgata facit sicut pro quarta parte dimidie hide.'
[658] Gloucester Cart. iii. 199: 'Et sciendum quod dominus potest
eligere utrum voluerit habere servitium predictum de Johanne Spere, uel
quod duplicet servitium R. de A. inferius inter akermannos scripti.'
[659] Rot. Hundr. ii. 757, a: 'Set isti tenentes memorati ut asserunt ad
alias consuetudines et servitia antiquitus esse consueverunt.'
[660] E.g. a comparison of the inquests contained in the Ramsey
Cartulary published in the Rolls Series with the earlier extents
contained in Cotton MS., Galba, E. x, and with the Hundred Rolls of
Huntingdonshire and Cambridgeshire, will support the opinion expressed
in the text.
[661] Seebohm, Village Community.
[662] The meaning of the expression may be gathered from the following
extracts from the Ramsey Cartulary, i. 358: 'Die autem Jovis proxima
ante Pascha et die Jovis contra festum S^{ti} Benedicti quodcunque opus
sibi fuerit injunctum operabitur.' Cf. 357: 'Et si opus fuerit, faciet
hayam in campis, habentem longitudinem duarum perticarum, et allocabitur
ei pro opere unius diei. Et die quo carriare fenum debet, ducet unam
carrectatam domi de alio feno Abbatis, uel aliud carriagium cum carrecta
faciet, si sibi fuerit injunctum.' 361: 'A gula autem Augusti usque ad
festum Sancti Michaelis qualibet septimana operabitur per unum diem
integrum, qualecunque opus sibi praecipiatur.' 365: 'Et operatur
quaelibet virgata a festo Sancti Michaelis usque ad festum Translationis
Sancti Benedicti qualibet septimana tribus diebus ... _quodcumque opus
praeceptum fuerit_; videlicet, si flagellare oportet, flagellabit infra
villam viginti quatuor garbas de frumento et siligini, de hordeo
triginta garbas, de avena triginta garbas. Extra villam flagellabit de
frumento viginti garbas, de avena viginti quatuor garbas. Nec exibit
extra hundredum ad flagellandum _nisi ex gratia_. Quodcunque _aliud
genus operis facere_ debeat, operabitur tota die si ballivus voluerit;
praeterquam in bosco, ubi si secare debeat, operabitur usque ad nonam;
et si pascere eum dominus voluerit, operabitur usque ad vesperam. Si
debeat spinas vel virgas colligere, colliget unum fesciculum, et
portabit usque ad curiam pro opere unius diei. In quadragesima autem
nullum genus operis faciet ad cibum proprium usque nonam nisi quod
herciabit tota die.' It seems quite clear that the lord has in some
cases the choice between different kinds of work, but the amount to be
required is settled once for all. When we find in the Glastonbury
Inquisition of 1189 the sentence, 'operabitur quodcumque ei praeceptum
fuerit sicut neth,' it means evident, that the peasant's work, whatever
it is, is settled according to the standard of the neat's holding.
[663] Glastonbury Inqu. of 1189, p. 41: 'Et herciat semel sine mensura
aliqua ei assignata cum hoc quod habet in carruca.'
[664] Placitorum Abbreviatio, p. 212: 'Alia carta eiusdem eidem Elie
facta et heredibus suis de dicta bovata terre una cum dicto Rogero
villano suo et secta et sequela sua.' Ramsey Cart. i. 355: 'Prior de
Sancto Ivone habet ingressum in una virgata terrae per Henricum de
Kylevile, in qua tres sunt mansiones, et unus pro caeteris facit
servitium debitum manerio.'
[665] Ramsey Inqu., Cotton MSS., Galba, E. x. f. 49: 'Quicumque
acceperit pro mercede sua 18 denarios debet operari cum domino suo
tribus diebus vel dare unum denarium.' Cf. Rot. Hundr. ii. 781, b:
'_Servi_: Dabit ad exennium contra Natale 6 panes ... et venit ad
prandium domini pro predicto exennio sexta manu si voluerit.'
[666] Cotton MSS., Galba, E. x. f. 19. See Appendix xiv.
[667] Domesday of St. Paul's, Hale's Introduction, pp. xxxviii, xxxix.
[668] Gesta Abbatum (Rolls Ser.), 74. Cf. Glastonbury Inqu. of 1189, p.
145.
[669] See, for instance, the beginning of the description of
Dorsetshire.
[670] Exch. Q.R. Min. Acc. Bk. 587, T.P.R. 8109: 'Sciendum quod tenentes
Abbatis de Osoluestone in Donington et Byker cum pertinentiis fuerunt
semel in anno pro voluntate Abbatis ad curiam suam tenendum ibidem et
invenient eidem Abbati et toti familie sue quam secum duxerit omnia
necessaria sufficientia in adventu suo per unum diem integrum et noctem
sequentem, vel noctem precedentem et diem sequentem in esculentis et
poculentis tam vino quam cervisia, feno et prebenda pro equis eorum et
equis carucariorum salem querencium, una cum candela et ceteris costis
omnimodis inter necessaria computandis. Et si abbas non venerit facient
finem cum celerario si voluerit vel cum alii quem Abbas nomine suo
miserit ad minus 20 solidis. Et si is qui nomine Abbatis missus ibidem
fuit et finem recusauit, procurabitur ut premittitur. Et si aliquid de
necessariis in administrando defuerit, omnes tenentes qui comestum
contribuere debent die crastino in plena curia super necessariorum
defectu per senescallum calumpniabuntur et graviter amerciabuntur. Et
talis fuit consuetudo ab antiquo et habetur quolibet anno pro certo
redditu, et de quo Petrus de Thedingworth quondam Abbas de Osoluestone
et predecessores sui a tempore quo non extat memoria sub forma predicta
fuerunt seisiti.'
[671] See about this point, Hale's Introduction. It is generally very
good on the subject of the farm.
[672] Domesday of St. Paul's, 21: 'Potest wainagium fieri cum tribus
caruciis octo capitum cum consuetudinibus villate.'
[673] The Templar's Book of 1185 at the Record Office (Q.R. Misc. Books,
N. 16) is already a rental in substance.
[674] Glastonbury Inqu. of 1189, p. 117: 'Nigellus capellanus tenet unam
virgatam, sed illa virgata non solet ad operacionem redigi. Cum dominus
voluerit operabitur sicut alie.' Rot. Hundr. ii. 815, a: '... dabit 8
solidos per annum pro operibus suis qui solidi poterunt mutari in aliud
servicium ad valorem pro voluntate domini.'
[675] Glastonbury Inqu. of 1189, p. 29: 'G. de P. (tenet) unum mesuagium
et tres acras et dimidiam pro 2 solidis et facit sicut homines de Mera
quando sunt ad gabulum. Hoc tenementum non solet esse ad opus.' 116:
'Leviva vidua tenet dimidiam hidam; unam virgatam tenet eodem servitio;
aliam tenet pro gabulo et non potest ad operationem poni sicut alia.'
[676] Bury St. Edmund's Reg., Harl. MSS. 3977, f. 82, d: 'Omnes liberi
et non liberi dabunt festivales exceptis illis liberis qui habent
residentes sub illos.' Glastonbury Cart., Wood MSS. i. f. 176, b: 'Abbas
et conventus remiserunt R. de W. ... omnia carriagia ... nec non et
illas custodias quae predictus R. et antecessores sui personaliter
facere consueverunt cum virga sua super bederipas ipsorum ... et super
arruras precarias que ei fieri debent in manerio de Pultone.'
[677] Custumals of Battle Abbey (Camd. Soc), p. 122.
[678] Black Book of Peterborough (Camden Ser.), 164: 'In Scotere et
Scaletoys sunt undecim carrucatae ad geldum Regis et 24 plenarii villani
... Plenarii villani operantur duobus diebus in ebdomada ... Et ibi sunt
29 sochemanni et operantur uno die in ebdomada per totum annum et in
Augusto duobus diebus. Et isti villani et omnes sochemanni habent 21
carrucas et omnes arant una vice ad hyvernage et una ad tremeis.'
[679] Bracton, iv. 9. 5, f. 263: 'Est autem dominicum quod quis habet ad
mensam suam et proprie, sicut sunt Bordlands Anglice.'
[680] Madox, History of the Exchequer, i. 407: 'Concessisse unam
virgatam terrae in Husfelds, scilicet 20 acras uno anno et 20 acras
alio.'
[681] In Beauchamp, a manor of St. Paul's, London, the home farm is one
of the largest. Domesday of St. Paul's, 28: 'In dominico tam de wainagio
veteri quam de novo essarto 676 acre terre arabilis et de prato 18 acre
et de pastura 8 acras [_sic_] et in magno bosco bene vestito quinquies
20 acre et in duabus granis Dorile et Langele 16 acras.'
[682] As to the economic aspects of the subject, see Thorold Rogers,
History of Agriculture and Prices; Ashley, Introduction to the Study of
Economic History; and Cunningham, Growth of Industry and Commerce (2nd
ed.).
[683] Harl. MSS. 1006, f. 2.
[684] Ramsey Cart. (Rolls Series), i. 282: 'Quae culturae coli possunt
sufficienter cum tribus carucis propriis et consuetudine carrucarum
ville et duabus precariis carucis (corr. carucarum?), quae consuetudo ad
valentiam trium carucarum aestimatur.' Domesday of St. Paul's, 13, 14:
'Potest ibidem fieri wainagium cum 5 carucis quarum tres habent 4 boves
et 4 equos et due singule 6 equos cum consuetudinibus villate propter
(corr. praeter?) dominicum de Luffehale et alia quae remota sunt, que
tamen sunt in dispositione firmarii.' Cf. Glastonbury Inqu. of 1189, pp.
28, 107.
[685] As an instance, Bury St. Edmund's Register, Harl. MSS. 743, f.
194: '(Bucham) abbas S^{ti} Edmundi capitalis dominus ... tenet in eadem
villa preter homagium liberorum nihil.'
[686] Domesday of St. Paul's, 58.
[687] Eynsham Inqu., Chapter of Christ Church, Oxford, N. 27, f. 5, a:
'Robertus Clement ... tenet de dominicis superius mensuratis dum domino
placet unam selionem apud Weylond atte Wyche, unam selionem apud
Blechemanfurlong, tres seliones in Wellefurlong, et unam selionem apud
Groueacres pro 11 solidis per annum.'
[688] It is well known that the second book of Fleta contains a sketch
of the functions of manorial officers. In thirteenth-century MSS. we
find also a special tract on the matter entitled de Senescalcia. See
Cunningham, Growth of Industry and Commerce (2nd ed.), p. 222. Let it be
understood that I do not attempt an exhaustive survey of the subject,
but only a general indication of its bearings.
[689] Domesday of St. Paul's, 122; forms of agreement by which the
manors were let to farm in the twelfth century: 'Haec est conventio
inter capitulum Lundoniensis ecclesiae beati Pauli et Robertum filium
Alwini sacerdotis. Capitulum concedit ei Wicham manerium suum ad firmam
quamdiu vixerit et inde bene servierit. Primo quidem anno pro 58 solidis
et 4_d._ et pro una parva firma panis et cervisiae cum denariis
elemosine. Deinceps vero singulis annis pro duabus firmis brevibus panis
et cervisiae.'
[690] Exch. Q.R. Miscell.: 'Consuetudines de Aysle: memorandum quod
homagium debet eligere prepositum et dominus manerii potest eum
retinere.... Et memorandum quod homines debent habere pastorem ovilis
per electionem curie.'
[691] The duty of serving as reeve is therefore often treated as one of
the characteristic marks of serfdom; e.g. Cambr. Univ., Gg. iv. 4, f.
26.
[692] Harl. MSS. 1006, f. 18: 'Debet esse messor ad frumentum et
amerciamenta domini colligendum.'
[693] Shaftesbury Inqu., Harl. MSS. 61, f. 60: 'Arator ... debet
invenire omnia instrumenta aratri ante rotas.'
[694] Ibid., f. 54: 'Bubulci et gadince.' Glastonbury Inqu. of 1189:
'Petras bovarius ... custodit boves domini et vadit ad aratrum.'
[695] 'Hereward,' Glastonbury Inqu., 24, 105, etc.; Domesday of St.
Paul's, 53.
[696] Cartul. of Battle (Camden Ser.), f. 39, b: 'wodeward.'
[697] Bury St. Edmund's Reg., Cambr. Univ., Gg. iv. 4, f. 322, a: 'Ad
istud pertinet tenementum falcacio claustri sed cum falce lurardi.'
[698] Glastonbury Inqu. of 1189, p. 36: 'Reginaldus thernebedellus tenet
dimidiam virgatam terre et summonet homines ad comitatum et hundredum.'
[699] Ibid., 7; cf. 156.
[700] Ely Cart., Cotton MSS., Claudius, C. xi, f. 15, d: 'Debet namiare
cum bedello et ceteris avermannis' (men provided with horses).
Glastonbury Inqu. of 1189, p. 31: 'Robertus de Eadwic sequitur hundredum
et comitatum ad suum costum.... Custodit preces arature et messis et
debet adjuvare ad namia capienda infra hundredum et est quietus de
pannagio.'
[701] Glastonbury Cart., Wood MSS., i. f. 92, 93; Compoti of Nicholas de
Wedergrave, who had charge of the monastery from the 21st of November,
16 Edward II, till the 12th of March, 16 Edw. II, as to the liberaciones
et conredia servientium: 'Et quod retinuit et necessarie oportuit
retinere in eadem abbathia 60 ministros et servientes pro hospitalitate
et aliis obsequiis faciendis in eadem abbathia.'
[702] Bury St. Edmund's Register, Harl. MSS., 743, f. 260: 'Scriptum
Johannis Northwold abbatis de quinque servanciis' (A.D. 1294); f. 260,
d: '... de minutis officiis.'
[703] Gloucester Cart. (Rolls Ser.), iii. 213, 214: 'Hoc intellecto quod
quandocumque placuerit loci ballivo amoveantur ab uno loco usque ad
alium ad commodum domini infra terminum, salvis eisdem liberationibus et
stipendiis prius provisis. Nec aliquis admittatur ad servitium domini
sine saluis plegiis de fideliter serviendo et de omittenda
satisfaciendo. Et moraturi tunc praemuniantur quod sibi provideant ad
morandum ... Item quod nullus famulus sit in curia cui plenum non
deputetur officium. Ita quod si unum officium suo statui sit
insufficiens in alio suppleatur defectus.'
[704] Merton College MSS., 91, f. 153: 'Coment hom deyt alower
oueraygnes en feyneson e en aust. Vous purrez bien auer sarcler 3 acres
pur un dener e auer fauche lacre de pre pur 4 deners.... E vous devez
sauer qe 5 hommes poent bien lyer et syer 2 acres le iour checune manere
de ble qe luns plus e lautre mens.... E la ou les 4 prenent 7 d. ob. le
iour e le quint pur ceo qil est lyour le iour 2 d., donqe devez donner
pur lacre 4 den. E pur ceo qen mouz de pays i ne sevent nient sier par
lacre si poet hom sauer par siours e par les jurnees ceo qil fount.
Mesqe vous reteignez les siours par les eez ceo est a sauer qe 5 hommes
ou 5 femmes le quel qe vous voudrez que home apele 5 home font un eez, e
25 hommes font 5 eez, e poent 25 hommes shyer e lier 10 acres le iour
entiers ouerables.... E si il accunte plus de jurnees qe ne fiert solon
ceste acounte, si ne lor deuez pas alower.'
[705] Glastonbury Inqu. of 1189, 16, 17.
[706] Glastonbury Inqu. of 1189, 14, 15 Cf. 13: 'Ernaldus C. tempore
episcopi Henrici habuit de quolibet preposito et quolibet firmario unum
denarium ad natale pro taliis quas inveniet eis et morsuras candelarum.'
[707] Bury St Edmund's Registrum Album, Cambr. Univ., Ee. iii. 60, f.
169, a: 'Isti habent biscum panem ... grangiator, bedellus, lurard.'
Glastonbury Cart., Wood MSS., 1, f. 126: 'Et quod habeat ... quolibet
anno de tota vita sua unam robam de secta armigerorum nostrorum et unam
robam competentem vel duas marcas pro uxore sua.' f. 142: 'Concessisse
Thome de Panis redditum unius robe annuatim recipiendi apud Glastoniam
de secta armigerorum nostrorum videlicet quartam partem panni cum
furrura agnina precii 2 solidorum uel duos solidos et si aliquo anno
armigeris nostris robas non dederimus, volumus et concedimus ... capiat
illo anno ... 20 solidos.' f. 146, d: '... tres panes, videlicet unum
panem uocatum priestlof et alterum panem uocatum bastardlof et tercium
panem uocatum seriauntlof de panetria predicti abbatis.... Et redditum
unius robe ... videlicet quartam partem unius panni de lecta
officiariorum cum furrura agnina. Et pro predicta Aluecia uxore sua unam
robam videlicet et octo virgas panni de secta secundorum clericorum cum
furrura de scurellis.'
[708] Glastonbury Inqu. of 1189, p. 3. Cf. 16: 'Vinitor habet talem
liberacionem sicut prepositus grangie.'
[709] Cellarer's Register of Bury St. Edmund's, Cambr. Univ., Gg. iv. 4,
f. 49, b: 'Inquisitio generalis dicit quod omnes gersumarii debent esse
prepositi vel heywardi ad voluntatem domini nec se excusare possint
racione alicuius tenementi ut patet in curia ibidem tenta anno regis
Henrici 54^{to}. Et notandum quod quicumque est prepositus aule de
Bertone magna habebit infra manerium unum equum sumptibus domini cum una
stotte et dimidiam acram ordei de meliore post terram compostatam et
habebit stipulam pisei vel fabarum sine diminucione. Et si tenet duas
terras custumarias plenas erit quietus pro operibus suis pro una terra
et habebit ad natale domini 1 den. ad oblacionem, die purificacionis
unam candelam precii quarterii et ad carnipriuium debet participari una
perna baconis inter omnes famulos curie et ad pascham habebit 1 d. pro
oblacione sua.' Eynsham Inqu. 6: 'Et quis eorum fuerit prepositus
manerii, liber erit et quietus de omnibus servitiis et consuetudinibus
quas facit Johannes Mareys predictus, auxiliis, pannagiis et denario
S^{ti} Petri exceptis.'
[710] Suffolk Court Rolls (Bodleian), 3: 'Terra debuit custodiam clauium
conuentus.' Ely Inqu., Cotton MSS., Claudius, C. xi. f. 26, a: 'Ad idem
tenementum pertinet esse coronarium et replegiare homines episcopi ...
et facere capciones et disseisinas infra insulam et extra.' Shaftesbury
Cart., Harl. MSS., 61, f. 60: 'Iacobus tenet 5 acras et servabit boves
excepta pestilencia et violencia.'
[711] Glastonbury Cart., Wood MSS., 1, f. 126: 'Carta abbatis Galfridi
facta Willelmo Pasturel (pistori) de terris et tenementis in
Glastonia:... reddendo inde per annum nobis et successoribus nostris
unam rosam ad festum nativitatis beati Johannis baptiste pro omni
seruicio saluo seruicio regali quantum pertinet ad tantam terram et
salvo nobis et successoribus nostris sectis curiarum nostrarum Glastonie
sicut alii liberi eiusdem uille nobis faciunt.' Glastonbury Inqu. of
1189, p. 10: 'Galterus portarius tenet tenementum suum scilicet portam
hereditarie cum his pertinentiis.' Shaftesbury Cart., Harl. MSS., 61, f.
90: 'Maria Dei gratia Abbatissa ecclesie S^{ti} Eadwardi.... Cum
dilectus noster Thurstanus portarius portam nostram cum omnibus ad eam
pertinentibus toto tempore vite sue libere et quiete et iure hereditario
possedisset et Robertus filius et heres eius, dum post eum contigit
Thomam heredem eiusdem Roberti post decessum patris eius eo quod minoris
esset etatis in custodiam nostram deuenire ... cumque ipsum diucius
tenuissemus in custodia pensatis predecessorum suorum obsequiis qui
nobis fideliter et laudabiliter ministrauerunt ... iura ad ipsum et ad
heredes eius racione custodie dicte porte pertinencia ... presenti
pagina duximus exprimenda.'
[712] Glastonbury Inqu. of 1189, p. 13.
[713] Glastonbury Cart., Wood MSS., 1, f. 125: 'Carta Murielle Pasturel
facta Galfrido Abbati Glastoniensi de tenementis et redditibus
pertinentibus (ad) servanciam de la lauandrie.'
[714] Bury St. Edmund's Reg., Harl. MSS., 743, f. 270 sqq.: '... ita
tamen quod nullus obedienciariorum predictorum potestatem habeat seu
auctoritatem conferendi aliquod officium seu servanciam alicui ad
terminum vite nec statum liberi tenementi alicui in premissis de cetero
concedendi, set huiusmodi seruientes officia predicta necessaria ex
collacione predictorum obedienciariorum habentes ad voluntatem
obedienciariorum predictorum removeantur quociens necesse fuerit (A.D.
1294).'
[715] A fourth class would be composed of tenements belonging to people
personally strange to the manor. Such 'forinsec' tenants were often high
and mighty persons who had nothing to do with the agrarian arrangements
of the place. I do not speak of this class, because its position is
evidently an artificial one and of no importance for the internal
organisation of the manor, though interesting from the legal point of
view.
[716] Shaftesbury Inqu., Harl. MSS., 61, f. 45, d: 'Bubulci et Gadinci
habent sabbatum per ordinem carucarum donec eorum aretur terra.'
Glastonbury Inqu. of 1189, p. 14: 'Habebit etiam unam acram in autumpno
uno anno apud Strete et alio anno aliam acram apud Waltonam.'
[717] Glastonbury Inqu. of 1180, p. 46: 'Stephanus fil. B.... de
dominico 2 acras ad implementum terre sue.' Cf. 39: '3 acras ad
perficiendum suas 5 acras.' Ibid. 81: 'Norman de Pola dimidiam virgatam.
Totum tenementum suum est de dominico.'
[718] Ibid. 39: 'unam acram pro 4 d. ad emendacionem terre sue.'
[719] Ibid. 27: 'Robertus prepositus unam acram pro quodam soc quam
magister Alured tenuit, et dicunt juratores sic esse utilius quam esset
in cultura, quia longe est a dominico.'
[720] Domesday of St. Paul's, p. 118: 'Anno domini 1240 Hugone de S^{to}
Eadmundo existente custode manerii de bello campo homines infrascripti
tenentes terras de dominico quas vocant inlandes sine auctoritate
capituli augmentaverunt redditum assizum, ut auctoritas capituli
interveniret.'
[721] Ibid., p. 121: 'Ricardus A. non feffatus nisi per firmarium
consuevit dare annuatim 4 solidos; de cetero dabit 4 sol. 7 den. et ob.'
Cf. 52: 'Subscripti sunt feffati de pasturis et frutectis usque ad
titulum in proximum.' Add. MSS. 6159, f. 70: 'Robertus Cob tenet 5 acras
pro 25 d. per capitulum ut sit perpetuum.' Domesday of St. Paul's, 60:
'Ricardus Wor 13 acras de terra arabili et unum mariscum 10 acrarum pro
4 sol. et 10 d. et per cartam capituli.'
[722] Ramsay Inqu., Cotton MSS., Galba E. x. fol. 49: 'De nova
purprestura 50 acras ... quas 4 homines de dominico tenent.' Cf.
Domesday of St. Paul's, 7. 20.
[723] Glastonbury Inqu. of 1189, 111: 'Homines tenent septem virgatas
terre de dominico de terra superius nominata, in parte erat liberata in
tempore Henrici episcopi et in parte postea cum 7 acris quas Johannes
clericus tenet.' Domesday of St. Paul's, 51: 'Tenentes de dominico
antiquitus assiso.' 53: 'Dicunt eciam quod terre de dominico de novo
tradite satis utiliter tradite sunt.'
[724] Bracton, f. 220. See F.W. Maitland in the Harvard Law Review, iii.
173.
[725] Rot. Hundr. ii. 336, a: 'In firmariis Johannes clericus tenet unam
dimidiam virgatam terre ad terminum vitae suae pro 6 solidis per annum
pro omni servicio.' Cf. 344, 346. Add. MSS. 6159, p. 70: 'Hanc terram
tenuit postmodum Thomas de Retendon et cum esset conventus a capitulo
super ingressu in illa eo quod aliquando dixisset quod tenuit eam in
feodo et non posset illud monstrare et recognovit se non habere ius in
illa et reddidit eam quietam decano et capitulo qui postmodum
concesserunt eandem terram cum manso ipsi Thomae tenendum de ipsis ad
vitam suam tantum pro 2 sol. et 6 d. per annum.' Glastonbury Cart., Wood
MSS., 1, 240, a: 'Magister Nicholaus de Malmesburi rector ecclesie de
Cristemalforde ... quod cum ego recepissem terram Ricardi de Leyweye in
manerio de Cristemalforde ... ad terminum 15 annorum et uiri religiosi
Glastonie se opposuissent dicentes (dicenti?) me esse infeodatum de
terra predicta, presenti scriptura confiteor me post predictos 18 annos
in dicta terra non posse vendicare feodum nec liberum tenementum.'
[726] Glastonbury Inqu. of 1189, p. 79: 'Johannes clericus ... idem
tenet unum cotsetle pro 16 d. pro omni servitio ex presto firmariorum
Reginaldi scilicet de Waltona.' Domesday of St. Paul's, 94: 'Gilbertus
filius N. tenet tres virgatas in quas Gilbertus avus suus habuit
ingressum per Theodoricum firmarium et modo reddit pro illis 36
solidos,' etc. Ibid. 40: 'Thomas filius Godrici 22 acras pro 22 d. cuius
medietas quondam Stephani, set habet eam per Ricardum firmarium,' Ibid.
25: 'Walterus de mora 14 acras pro 4 solidis et 8 d. quondam Elvine, cui
non attinet, cuius ingressus ignoratur.'
[727] Warwickshire Hundred Roll, Q.R. Misc. Books, 429, f. 13, b: 'Unde
Willelmus de Wexton tenet unum cotagium libere ad terminum vite sue pro
4 solidis metens in autumpno per 1 diem.' A peculiar case is found in
Glastonbury Inqu. of 1189, p. 69: 'Godwin palmer ... dimidiam virgatam
... ex tempore Roberti Abbatis per Thomam Cameriarum in cujus custodia
fuit tunc manerium.' (Later hand): 'Iste Godwin dedit Henrico abbati
dimidiam marcam et acrevit gabulum de 12 d. Hec convencio durabit dum
dominus Abbas erit.'
[728] Domesday of St. Paul's, 25: 'Robertus filius Roger filii
mercatoris unam acram et dimidiam pro 6 d. Item paruum augmentum pro 1
d.'
[729] Rot. Hundr. i. 451: 'Item Andreas prepositus tenet tantum terre
sicut dictus Goscelinus villanus in omnibus. Et preter hoc tenet 3 acras
pro libra cimini. Item Rogerus Doning facit sicut dictus Goscelinus in
omnibus et debet domino suo pro uno seillione terre 6 d. per annum.
Willelmus Mathew tenet eodem modo et preter hoc dat domino suo pro una
acra 4 capones precii 6 den.'
[730] Worcester Cart., 27, a: 'de forlandis. De Thoma de G. pro 5
acris.... De acra quam Symon Carpenter tenuit. De Alicia vidua pro
dimidia acra. De Johanne Roberti pro 4 buttis in crofta,' etc.
[731] Domesday of St. Paul's, p. 7 sqq.: '(Kenesworthe) isti tenent de
dominico et de essarto.' 21 sqq.: '(Erdelege) isti tenent de essarto
veteri.' 75: '(Nastox) nova essarta.'
[732] Worc. Cart., 13: 'Idem tenet assartum pro medietate fructus et
Prior invenit medietatem seminis.'
[733] The essarts of St. Paul, London, are divided into small portions
among the peasantry, and the same men own them who are possessed of the
regular holdings--all indications that the clearing was made according
to a general plan and by the whole village.
[734] Worcester Cart., 47, 48: 'de soccagiis et forlandis villanorum.'
Cf. 49.
[735] A curious species of land tenure is the so-called _rofliesland_
(rough lease?). Glastonbury Inqu. of 1189, 29: 'W. de W. tenet unum
Rofliesland eodem servicio; tota terra est in voluntate domini.' 65: 'W.
tenet 5 acras et filius suus 5 acras; unus eorum tenet carucam domini,
alter fugat boves. Terra quam filius eius tenet est Rofles.' 66: 'R.
fil. A. tenet unum ferdel de Rofliesland pro 2 solidis pro omni servicio
per camerarium.' 90: 'Idem tenet dimidiam virgatam de rofliesland pro
duobus solidis, quod utilius esset edificari.' Cf. 164, sub voce
Roflesland. The name is found often in old leases in Wilts and Somerset
as a 'Rough lease' or a 'Rowlease.' I think the term must indicate one
of those informal agreements of which I speak in the text. See also Reg.
Malmesbur. ii. 9, 10.
[736] Rot. Hundr. ii. 437: 'Symon et Petrus ... tenent de eodem Alano
unam virgatam terre et solvunt per annum 8 s. et debent arare tres
dimidias acras terre ... Adam Swetcoc tantum tenet de predicto Alano et
solvit 9 sol. 3 d. et facit per omnia sicut predicti Simon et Petrus et
tantum plus quod debet metere ... Thomas Alwyne tantum tenet de predicto
Alano et solvit 8 s. et debet arare 3 acras avene et metere duas acras,'
etc. Cf. 446, 473.
[737] Rot. Hundr. ii. 656.
[738] In Sawtrey le Moyne and Sawtrey Beaumeys (659, 660) the free
tenants are partly virgaters and half-virgaters, partly holders of small
plots. I need not say that all my quotations are of cases which might be
multiplied to any extent.
[739] The undated Survey of the Ramsey Cartulary (ii. 487) has a
different reckoning: 'Item omnes positi ad censum qui tenent virgatam,
vel dimidiam virgatam, dabunt per annum pro virgata octo solidos, vel
pro dimidia virgata quatuor solidos.' There are several other small
discrepancies with the Hundred Roll description. The document endorsed
in the Cartulary seems the earlier one, and the differences have to be
explained in all probability by some attempt on the part of the
Monastery to set up a higher rent at the time of its compilation. One
does not see the slightest ground for any reduction of the rent in
process of time. Generally speaking, the conditions described in the
Hundred Roll are more irregular than those mentioned in the Cartulary.
[740] The Ramsey Cartulary has simply: 'Et virgatarius arabit et
herciabit qualibet septimana per unum diem sicut operarius.'
[741] Rot. Hundr. ii. 348.
[742] Ib. 443, 444. Isabel, the daughter of William le Frend, is taken
as a typical half-virgater.
[743] Rot. Hundr. ii. 326.
[744] Ib. ii. 327.
[745] Ib. ii. 436.
[746] Ib ii. 438.
[747] Ib. ii. 473.
[748] Rot. Hundr. 470: '(villani) quilibet istorum tenet dimidiam
virgatam terre de predicta Elena de quibus xxx et 1 operantur in uno
anno et alii xxxij operantur in alio anno et in eodem anno quo operantur
dant domine per annum 8 d. et alii qui non operantur dant per annum
quilibet dimidius virgatarius 2 s. 10 d. et auxilium Vicecomitis 1 d.
obolum et quilibet dat obolum, quadrantem ad festum St. Michaelis.'
[749] Maitland, Select Pleas in Manorial Courts, vol. i. 95: A reeve
complains that Richer Jocelin's son and Richard Reeve and his wife have
insulted him, by saying among other things '... quod cepisse debuit
munera de divitibus ne essent censuarii et pauperes ad censum posuisse
debuit.'
[750] It might perhaps be objected that the difference in favour of the
free people ought to be explained by a depreciation of money which in
process of time lowered the value of quit rents. But the explanation
would hardly suit the age in which the Hundred Rolls were compiled. The
phenomenon mentioned in the text may be observed in all the Cartularies,
and there is no reason to think that the free rents which occur in them
are already antiquated survivals of agreements which had lost their
economic sense.
[751] Rot. Hundr. ii. 542.
[752] Ib. 348.
[753] Ib. 508.
[754] Exch. Q.R. Misc. Books, N 29, f. 11 a.
[755] Exch. Q.R. Misc. Books, N 29, f. 12: 'Idem Thomas habet ibidem 12
villanos tenentes 4 virgatas terre et dimidiam in villenagio, unde
Johannes Aylind tenet dimidiam virgatam terre pro 5 s. 8 d. faciens fenum
domini per unum diem cum uno homine, metens blada eiusdem domini per 1
diem cum uno homine, etc. Idem Thomas habet ibidem 11 liberos tenentes
11 virgatas terre et dimidiam. Unde Willelmus en la Nurne tenet dimidiam
virgatam et 4 acras terre pro 4 solidis faciens sectam ad curiam de
Bathekynton bis per annum pro omni demanda.'
[756] Bodekesham, Cambs. (R.H. ii. 487), is probably a case of molland.
The often-quoted instance of Ayllington is doubtful, although the Ramsey
Cartulary speaks of the _liber tenentes_ as _malmanni_. The expression
was probably in use for all rent-paying people, although properly a
designation of those who had commuted their services. See _Appendix XV_.
[757] R.H. ii. 349, 350: 'In Weston, Bucks, the service of the villain
virgater is estimated at 5 s. 2 d.... Elyas Clericus tenet dim. virgatam
et reddit Johanni de Patishull 1 d. Willelmus fil. Willelmi de
Ravenestone tenet dim. virgatam de eodem feodo et reddit per annum 1 d.
Thomas Acpelard tenet dimidiam virgatam terre et reddit dicto Willelmo
de Nodaris 3 d. Stephanus Elys tenet dimidiam virgatam et solvit eodem
Willelmo 2 d. Thomas Thebaud tenet dimidiam virgatam et reddit eidem
Willelmo 1 d.... Item Robertus le Cobeler tenet dimidiam virgatam terre
et solvit eodem 1 libram cimini. Omnes isti prescripti dant per annum
forinsecum et scutagium domino Willelmo de Nodaris quando currit.' Cf.
Torrington, Bucks, R.H. ii. 352.
[758] R.H. ii. 713 (Stanton, Oxon.): 'ad alternacionem cujuslibet domini
de Stanton debet recognoscere eundem dominum de uno spervario et dabit
dimidiam marcam eidem domino.'
[759] See e.g. Ramsey Cartul. i. 138, 142.
[760] R.H. ii. 402, 403.
[761] R.H. ii. 466. Cf. 609.
[762] R.H. ii. 502.
[763] R.H. ii. 484, 485.
[764] R.H. 469, 470, 475.
[765] A good specimen of the accusations which might be made against a
manorial agent is afforded by the Court-rolls of the Abbey of Ramsey.
Seld. Soc. ii. p. 95.
[766] Seld. Soc. ii. 22: 'Et dicit curia quod tenementum et una acra
servilis condicionis sunt et una acra libere.'
[767] Coram Rege, Pascha 9 Edw. I, 34, 6: 'Messarius abbatis et
messarius villate.'
[768] Okeburn Inqu. 56 (Add. MSS. 24316): 'Eligere debent unum messarium
de se ipsis et domini de ipso electo poterunt facere prepositum.'
[769] Gloucester Cart. iii. 221: 'Prepositus eligetur per communitatem
halimoti qui talem eligant qui ad suam terram propriam excolendum et
cetera bona sua discrete et circumspecte tractanda idoneus merite
notatur et habeatur, pro cuius defectibus et abmittendis totum halimotum
respondeat, nisi ubi urgens necessitas aut causa probabilis illud
halimotum coram loci ballivo rationabilem praetendere poterit
excusationem.' Cf. Walter of Henley, ed. Lamond, pp. 10, 64, 66.
[770] Seld. Soc. ii. 12: 'Nicholaus filius sacerdotis ... et Robertus de
Magedone ... in misericordia quia contradixerunt tallagium quod positum
fuit super eos per vicinos suos.' Glastonb. Inqu. of 1189, p. 33: 'Totum
manerium reddit de dono 73 solidos et 4 den. sicut homines ville illud
statuunt.'
[771] Ramsey Cart. i. 401: 'Sunt in scot et in lot et in omnibus cum
villata.' Spalding Priory Reg., Cole MSS. xliii. p. 283: 'Libere tenens
facit fossatum maris et omnes communas ville secundum quantitatem
bouatae.'
[772] Ramsey Cart. i. 398: 'Henricus le Freman solebat esse in communa
villatae, ut in tallagio et similibus. Nulla inde facit.' p. 394 (a
villager does not pay his part of the tallage), 'quod quidem tallagium
tota villata et ad magnum ipsorum gravamen hucusque persolvit.'
[773] Glastonbury Cart., Wood MSS. i. f. 111: 'Si nul soit enfraunchi de
ses ouvrages dont la ville est le plus charge.'
[774] Add. MSS. 6159, f. 25, b: 'Dominus debet invenire duos homines
sumptibus suis coram eisdem justiciariis et villata de Rode sumptibus
suis tres homines invenient. Et hoc per consuetudinem a tempore quo non
extat memoria ut dicitur.' Cf. Domesday of St. Paul's, 15: 'Alanus
filius Alexandri de Cassingburne tres virgatas pro 20 solidis et preter
haec 10 acras de villata et 10 de dominico propter sectam sire et
hundredi quam modo non facit.'
[775] Custumal of Bleadon, 257: 'Invenit fabrum pro ferdello domino et
toti villae.'
[776] Shaftesbury Cart., Harl. MSS. 61, f. 63: 'Ibit ad scotaliam domine
sicut ad scotaliam vicinorum.'
[777] Ramsey Cart. i. 425: 'Ponitur in respectu quousque videatur
quomodo se gerat versus dominum abbatem et suos vicinos.'
[778] Seld. Soc. ii. 172: 'Ad istam curiam venit tota communitas
villanorum de Bristwalton et de sua mera et spontanea voluntate sursum
reddidit domino totum jus et clamium quod idem villani habere clamabant
racione commune in bosco domini qui vocatur Hemele et landis
circumadjacentibus, ita quod nec aliquid juris vel clamii racione
commune in bosco predicto et landis circumadjacentibus exigere,
vendicare vel habere poterint in perpetuum. Et pro hac sursum reddicione
remisit eis dominus de sua gracia speciali communam quam habuit in campo
qui vocatur Estfeld,' etc.
[779] Annals of Dunstable (Annales Monast.) iii. 379, 380: 'Et prior
dicit, quod praedicta tenementa aliquo tempore fuerunt in seisina
hominum villate de Thodingdone, qui quidem homines, unanimi voluntate et
assensu, feofaverunt praedictum Simonem, praedecessorem praedicti
prioris, de praedictis tenementis, tenendum eidem Simoni et
successoribus suis in perpetuum. Jurati dicunt ... quod praedicta
tenementa aliquo tempore fuerunt in seisina praedictorum hominum
villatae de Thodingdone et quod omnes illi, qui aliquid habuerunt in
praedictis duabus placiis terrae, congregati in uno loco ad quandam
curiam apud Thodingdone tentam, unanimi assensu concesserunt praedicto
Symoni, quondam priori de Dunstaple, praedecessori prioris nunc,
praedictas placeas terrae, cum pertinentiis, tenendum eidem et
successoribus suis in perpetuum, reddendo inde eisdem hominibus et eorum
haeredibus per annum sex denarios temporibus falcacionis prati.'
[780] Madox, Firma Burgi, 54, f: '... statim visis litteris capiat in
manum Regis maneria de Cochame et Bray, quae sunt in manibus hominum
praedictorum maneriorum, et salvo custodiat, ita quod deinceps Regi
possit respondere de firma praedictorum maneriorum ad scaccarium.' 54,
g: 'Miramur quamplurimum quod 30_s._ quos monachi de Lyra de elemosyna
nostra constituta singulis annis per manus ballivorum villae vestrae,
antequam predictam villam caperitis ad firmam recipere.' Cf. Exch. i.
407, a, 412, b; Rot. Hundr. ii. 134: 'Benmore juxta Langport fuit de
dominico domini Regis pertinens ad Sumerton ubi omnes homines domini
Regis de Sumerton, Sutton, Puttem et Merne solebant communicare cum
omnimodis averiis suis, set per negligenciam villanorum de Sumertone qui
manerium tunc temporis ad firmam tenuerunt et Henricus de Urtiaco vetus
eandem moram sibi appropriavit.'
[781] Gloucester Cart. iii. 181: 'Omnes isti villani tenent de dominio
quoddam pratum quod vocatur Hay continens 23 acras et reddunt inde per
annum 23 solidos 3 denarios.'
[782] Cf. Prof. Maitland's Introduction to the rolls of the Abbey of
Ramsey. Seld. Soc. ii. 87.
[783] See the record of proceedings in the Court of the manor of
Hitchin, printed by Mr. Seebohm at the end of his volume on the 'Village
Community.'
[784] Introduction to Seld. Soc. ii. p. xvi.
[785] Add. MSS. 6159, f. 54, a: 'Visus de borchtruning.'
[786] Gloucester Cart. iii. 221; Malmesbury Cart. ii. 17. Cf.
Kovalevsky, 'History of police administration in England' (Russian),
137.
[787] Glastonbury Inqu. of 1189, p. 101: 'De tidinga Estone 5 solidos
vel placita que orientur.' Cf. Maitland, Introduction to Seld. Soc. ii.
pp. xxx, xxxiii.
[788] Rot. Hundr. ii. 461, b: 'Et predicti Radulfus et Robertus habent
suas duodenas.'
[789] Y.B. 21-22 Edw. I, 399: 'Presence a vewe de franc pledge demande
par la reson de la persone, non de la tenure.'
[790] Glastonbury Cart., Wood MSS. i. f. 100, b: 'Predictus Abbas
consensit quod omnes homines eorum de predictis villis qui fuerint
duodecim annorum et amplius faciant sectam ad predictum hundredum bis in
annis perpetuum ... exceptis omnibus bercariis, carrucariis predictarum
villarum et carrectariis cuiuscumque hominis fuerint et omnibus aliis
hominibus tam de predictis villis quam aliunde qui sunt de manupastis
ipsius abbatis qui nullam sectam facient ad predictum hundredum nisi
ibidem fuerint implacitati vel alios implacitent.'
[791] Glastonbury Cart., Wood MSS. i. f. 112: '... ne soit a la peis le
roi come tere tenaunt en diseine ou en fraunche pleivine.' f. 111:
'Serment de ceux qui entrent en diseine ... ne celeras chose qe apent a
la pei le roi de engleterre.'
[792] Introduction to Seld. Soc. ii. p. xviii.
[793] Seld. Soc. ii. p. lxx.
[794] Rot. Hundr. ii. 143: 'Ermoldus de Boys dominus de Asynton solebat
facere sectam ad Boxford ad Sockomanemot pro terra Ricardi Serle in
Cornerche, nunc illa secta subtracta per 4 annos.' The expression
'frank-halimote' occurs often, but it is evidently an equivalent to
'libera curia,' and interchanges with 'liberum manerium.' See Rot.
Hundr. ii. 69, 74, 127.
[795] Eynsham Inqu., Christ Church MSS. 15, a: 'Curia debet ibi teneri
si dominus voluerit.'
[796] Seld. Soc. ii. 49, etc.
[797] Beaulieu Cart., Harl. MSS. 748, f. 113: 'De sectatoribus
intrinsecis ... et qui habent terram in campis ... et ad forciamentum
curie omnes predicti tam liberi quam alii cum 12 burgensibus vel
pluribus venient ad curiam per racionabilem summonicionem.' Glastonb.
Cart., Wood MSS. i. 101, d: 'Ipse et heredes et homines sui de Acforde
facient bis in anno sectam ad hundredum abbatis de Nywentone et ad
afforciamentum curie.'
[798] Rot. Hundr. ii. 710, a; Ramsey Cart. i. 491.
[799] Warwick Hundred Roll, Exch. Q.R. Misc. Books, 29, p. 10: 'Quidam
de tenentibus dicunt quod nunquam fecerunt sectam.'
[800] Gloucester Cart. iii. 208.
[801] Chapter-house Box 152, No. 14: 'Hereditas de qua una secta
debetur.'
[802] Ramsey Cart. i. 412: 'Prohibitum est in plena curia, ne quis ducat
placitatores in curiam abbatis ad impediendum vel prorogandum judicium
domini Abbatis.' Gesta Abbatum (St. Alban's), 455: 'Non permittatur quod
in halimotis adventicii placitatores partes cum sollemnitate sustineant
sed communiter per bundos (i.e. bondos) de curia veritas inquiratur,
sine callumnia verborum.'
[803] Stoneleigh Reg. f. 75: 'Curia de Stonle ad quam sokemanni
faciebant sectam solebat ab antiquo teneri super montem iuxta villam de
Stonle vocatam Motstowehull, ideo sic dictum quia ibi placitabant sed
postquam abbates de Stonle habuerunt dictam curiam et libertatem pro
aysiamento tenencium et sectatorum fecerunt domum curie in medio ville
de Stonle.'
[804] Selden Soc. ii. p. 67.
[805] Introduction to Seld. Soc. vol. ii. p. 76.
[806] The Durham halimot books (Surtees Society) supply some instances.
[807] Glastonbury Inqu. of 1189, p. 33: 'De dono 73 solidos sicut
homines ville illud statuunt.'
[808] Selden Soc. ii. 36, 168.
[809] Selden Society, vol. ii. 6, 7, 8.
[810] Ibid. 31: 'Johannes Smert ... Henricus Coterel maritavit se sine
licencia domini, ideo distringantur ad faciendum voluntatem domini.'
[811] Ibid. p. 44: 'Postea taxata fuit dicta misericordia per Rogerum de
Suhtcote, Willelmum de Scaccario, Hugonem de Cumbe liberos sectatores
curie usque ad duas marcas.'
[812] Introduction to Seld. Soc. ii. p. lxv.
[813] Ibid. pp. 163, 166.
[814] Comp. Heussler, Institutionen des deutschen Privatrechts, i. 215;
ii. 622; but I cannot agree with him as the ceremony being employed only
where there was to be a 'donatio mortis causa.' In connexion with this
the part played by the Salman is misunderstood, as it seems to me.
[815] The court rolls of Common Law manors do not think it necessary to
give the particulars about the transmission of the rod. But the
description of the practice at Stoneleigh, which, though ancient
demesne, presents manorial customs of the same character as those
followed on ordinary estates, leaves no doubt as to the course of the
proceedings. See above the passage quoted on pp. 113-6. Comp. a parallel
ceremony as to freehold, Madox, Formulare, p. 54. The instance has been
pointed out to me by Prof. Maitland.
[816] See Pollock, Land-laws, 199, 208 (2nd ed.).
[817] Seld. Soc. ii. 33; insertion of a lease in the roll; p. 35: 'Lis
conquievit inter ipsos ita quod concordati fuerunt in hac forma de
voluntate domini et in plena curia ita videlicet quod predictus
Willelmus de Baggemere concessit, remisit et quietum clamavit pro se et
heredibus suis ... et hoc paratus est verificare per recordum rotulorum
seu 12 juratores ejusdem curie per voluntatem domini et senescalli.' p.
166: 'Et sciatis quod si haberem ad manus rotulos curie tempore Willelmi
de Lewes ego vobis certificarem et vobis monstrarem multa mirabilia non
opportune facta.'
[818] These points have been conclusively settled by the masterly
investigations of Brunner, Zeugen- und Inquisitions-beweis (Abhandlungen
der Wiener Akademie) and Entstehung der Schwurgerichte.
[819] Seld. Soc. ii. 41: 'Quod talis sit consuetudo manerii et quod
dicta Augnes sic venit in plena curia cum marito suo et totum jus et
clamium quod haberet vel aliquo modo habere poterit in toto vel in parte
hujus burgagii in manus domini ad opus ejusdem R. reddidit ponit super
curiam ... Et 12 juratores curie,' etc.
[820] I do not mean to say that the analytical distinctions which we
make between fact and law, between presenters to a tribunal and
assessors of a tribunal, were clearly perceived or consequently carried
out in the twelfth or thirteenth centuries. On the contrary there was a
good deal of confusion in details, and the instinctive logic of facts
had more to do in dividing and settling institutions than conscious
reasoning. Juries and assizes of the Royal Courts might be called upon
incidentally to decide legal questions, but, in the aggregate, there can
be hardly a doubt that the sworn inquests before the Royal judges were
working to provide the Courts with a knowledge of local facts and
perhaps conditions, while the manorial court gave legal decisions.
[821] Seld. Soc. ii. 41: 'Et 12 juratores curie ... dicunt super
sacramentum suum quod predicta Agnes venit in _plena curia_ et totum jus
et clamium quod aliquo modo habere potuit in dicto burgagio in manus
domini reddidit.' 42: 'Et juratores ... dicunt super sacramentum suum
quod Juliana per quam dicta Matildis petit hujusmodi messuagium nunquam
fuit seisita de ipso mesuagio, set Willelmus Ponfrayt maritus ipsius
Juliane, unde secundum consuetudinem manerii Juliana post mortem W.
mariti sui nichil poterit clamare nisi dotem in huiusmodi mesuagium
_nisi fuerit in plena curia_ una cum marito suo de huiusmodi _perquisito
conjunctim seisita_.' Cf. p. 40: 'Unde Willelmus pro _premissis in plena
curia recordatis et inrotulatis_ dat domino 10 solidos.'
[822] 4 Inst. 270, cap. 58.
[823] Y.B. 11/12 Edw. III (Rolls Ser.), p. 325, sqq.: '... les suters de
Cokam firent venir plein record ... les suiters agarderent seisine de
terre ... ila firent faux judgement.... _Stonore_: Cest usage est molt
encontre la ley, qe cesti qe doit tenir les plees ne poet pas recorder
un attourne en ple qe serra plede devant lui mesme. _Trew_: Nous voloms
averer qe les usages sont tiels, qe le seneschal de la court poet
resceivir un attourne, issint qil dei entre les suiters coment il ad
resceu un tiel attourne en tiel ple a la proschein court apres la
resceite, et vous dions qe cesti Adam qe respondi par attourne fut
resceu attourne en la manere.' Cf. Lysons, Magna Brit. i. 266. Y.B. 3
Edw. III. 29: 'Rob. le W. porta son brief de faux judgement devers un
home et sa feme, et apres le record avowe par les suters de la court de
Bloxham ... les suters agarderent qe Robert et ses plegis fuerent in le
mercie, et quod narratio sua fuit iniqua, et recordarent un nonsuit la
ou la partie fust en court, per qe nous prioms qe cel record soit
revers.' Viner, Abr. ii. A. 5, O. 6.
[824] Y.B. 11/12 Edw. III (Rolls Ser.), p. 517: '_Trew._ Le brief
suppose qe le defendant tint le ple et qil fut baillif, ou seuters
tenent le ple qe ont record; jugement de bref. Et non allocetur, quia
ipse tenet curiam et ei dirigitur breve.'
[825] Note Book of Bracton, pl. 1122: 'Preceptum fuit ballivis de
Kingestona quod in plena curia sua de Kingestona recordari facerent
loquelam ... et recordum venire facerent per quatuor qui recordo illi
interfuerunt, etc.... Ideo balliui inde sine die et Radulfus in
misericordia.' 834: 'Preceptum fuit vicecomiti quod preciperet balliuis
manerii Domini Regis de Haueringes quod recordari facerent in curia
domini Regis de Haueringes loquelam que fuit in eadem curia per breve
domini Regis ... unde predicte Agnes et Dyonisia queste fuerunt falsum
sibi factum fuisse iudicium in eadem curia et quod diligenter
inquirerent qui fuerunt illi de maneriis Domini Regis de Writele,
Neuport et Hatfeuld qui interfuerunt predicto iudicio faciendo simul cum
hominibus Domini Regis de Haueringes et illos venire facerent aput
Aueringe ad diem quem predicti homines et balliui Haueringe predicti
loquelam recordari facerent, ita quod tam predicti ballivi et homines de
Haueringe quam predicti homines de predictis maneriis recordum illud
haberent coram justiciariis aput Westmonasterium per 4 legales homines
de manerio de Aueringes et 6 de maneriis de Writele, de Neuport et de
Hatfeuldia ex illis qui recordo illi interfuerunt.... Consideratum est
quod illi de predictis maneriis falsum fecerunt iudicium et ideo omnes
de manerio in misericordia preter Willelmum Dun ... qui _noluerunt
consentire judicio_.'
[826] Stoneleigh Reg., f. 75: 'Item si aliquis deforciatur de tenemento
suo et tulerit breve Regis clausum ballivis manerii versus deforciantes,
dictum breve non debet frangi nisi in curia ... Item quando ballivus
aliquem summoneat ex precepto curie, tunc assumet secum duos sokemannos
quos voluerit pro testanda summonicione predicta ... Item qualitercumque
placitum terminetur in curia sive in deficiendo in lege vadiata sive per
non defensionem dampna sunt semper taxanda per curiam ... Item debent
sokemanni respondere per 12 coram justiciariis et coronatore domini
Regis. Et ipsi dabunt iudicia curie de Stonle ... Item nullus
adiudicabitur tenens terre nisi qui a curia tenens acceptatur per
fidelitatem et alias consuetudines licet tenens extra curiam aliquem
feoffaverit per cartam vel sine carta.'
[827] Selden Soc. ii. 122: 'Capiatur in manum domini quarta pars unius
rode prati jacens in Smalemade quam Rogerus Greylong vendidit Nicholao
le Neuman sine licencia curie.' Cf. 112: 'Praesentatum est quod Hugo
Graeleng solvit sursum extra curiam ad opus Thome Aspelon de Broucton
liberi unam portionem cuiusdam mesuagii ... Ideo preceptum quod capiatur
in manum domini.'
[828] We hear constantly such phrases as the following: 'Quod iuncta est
secum vocat rotulos ad warrantum; ponit se super rotulos.' But we have
also: 'Et partes pecierunt quod inquiratur per villatam que dixit quod
sufficientem duxit sectam. Postea testificatum fuit per totam villatam
quod dictus Nicolaus tenebatur dicto Bartholomeo in predictis 5_d._'
(Seld. Soc. ii. 118). In one case the party relies on the evidence of
the Register of Ramsey (p. 111), which was compiled, of course, on the
basis of sworn inquests held in the different manors.
[829] Seld. Soc. ii. 112.
[830] Augment. Court Rolls, Portf. xxiii. No. 94, m. 3: 'Quod quidem per
senescallum concessum est eisdem' (the entry is omitted in Mr.
Maitland's publication).
[831] Seld. Soc. ii. 111.
[832] Augment. Court Rolls, Portf. xxiii. No. 94, m. 25 v. (the entry is
not in the Selden volume): 'Margeria que fuit uxor Nicholai de Aula de
Kingesripton venit et petit unum parvum mesuagium existens in manu
domini quod quondam fuit de mesuagio suo proprio et quod ipsa Margeria
singulis annis defendit versus dominum Abbatem, unde petit quod ius suum
super hoc inquiratur per bonam inquisicionem. Que venit et dicit ... Et
ideo preceptum eidem quod inde habeat colloquium cum domino. Et postea
colloquio habito cum domino concessum est ei quod pacifice habeat
faciendo seruicia inde debita et consueta.'
[833] Selden Soc. ii. 127.
[834] Selden Soc. ii. 173.
[835] Ibid. 94: 'Reginaldus fil. Benedicti injuste dedicit esse unus de
12 juratoribus allegando libertatem ... Dicunt eciam quod Willelmus de
Bernewell injuste allegat libertatem propter quam contradicit esse unus
de juratis.' Cf. Cor. Rege incerti anni Johann. 5: 'Predecessores sui et
ipse tenuerunt liberum tenementum et quod quidam ex juratis sunt
consuetudinarii monialium.' Cor. Rege Pascha, 9 Edw. I, 34, b:
'(Amerciamentum sochemanni) per pares vel per liberos de curia et
vicinos ad curiam venientes.'
[836] Hereford Rolls (Bodleian), 12: 'Compertum per libere tenentes quod
custumarii falso presentant ... ideo custumarii in misericordia.' Rot.
Hundr. ii. 469: 'Quatuor homines et prepositus presentabant defaltas
predictis liberis hominibus et ipsi liberi presentabant ballivis.'
[837] Seld. Soc. ii. 44.
[838] Introduction to Seld. Soc. ii. p. lxx.
[839] Seld. Soc. ii. 67.
[840] Ibid. 164.
[841] See as to all this Mr. Maitland's Introduction to the Selden
volume (ii), pp. lxix, lxx.
[842] Introd. to Selden Soc. ii. p. lxi, and following. Comp. Coram
Rege, 27 Henry III, 2: 'Dicunt quod non est aliquis liber homo in eodem
manerio nisi Willelmus filius Radulfi qui respondet infra corpus
comitatus.'
[843] Y.B. 21-22 Edw. I, 526 (Rolls Series).
[844] Comp. Mr. Maitland in his often-quoted Introduction, p. lxxi.
[845] Introduction to Seld. Soc. ii. p. lxvi.
[846] Archaeologia, vol. 47, p. 27, and following.
[847] Rot. Hundr., Cartulary of Ramsey, i.
[848] Gomme, Village Community, 162, etc.
[849] Cart. of Malmesbury (Rolls Ser.), ii. 221.
[850] A very good case in point is presented by Hitchin, because the
boundaries and the jurisdiction of the manor comprise a great number of
villages and hamlets which managed their open fields quite independently
of the central township of Hitchin, and could not but do so, as they lay
quite apart and a good way from it, as may be seen on the Ordnance Map.
And still the manor comprises 'the township of Hitchin and the hamlet of
Walsworth, the lesser manors of the Rectory of Hitchin, of Moremead,
otherwise Charlton, and of the Priory of the Biggin, being comprehended
within the boundaries of the said manor of Hitchin, which also extends
into the hamlets of Langley and Preston in the said parish of Hitchin,
and into the parishes of Ickleford, Ipolitts, Kimpton, Kingswalden, and
Offley.' (Seebohm, Village Community, 443, 444.) As Mr. Seebohm tells
me, the contrast between the central portion, that of the township,
managed in one open field system, and the outlying parts, is probably
reflected in the curious denominations of the manor as Portman and
Foreign. It is well known how frequently our surveys mention hamlets; in
many cases these annexes of townships are so widely scattered, that it
would be impossible to suppose one open field system for them.
[851] Seld. Soc. ii. 68, 90.
[852] Ibid. 162, 166.
[853] Introd. to Seld. Soc. ii. p. xxxix.
[854] 'Cest action est mixte en favour de franchise car rarement se
sustreit nul del fief de son seiniur, s'il ne soy claime frank' (p.
165).
[855] P. 168.
[856] P. 212: 'Si le defendant puisse monstrer frank cep de ses
Anncestres en la conception ou en la nativity ou puis, y' ert le
defendant tenable pur frank a touts jours tout y soyent present pere et
mere frere et cosins et tout son parenter que soy coynossent estre serfs
al actor, et tesmoignent le defendant estre serf. Le autre notability
est, que nient pluis ne fait long tenure de villeinage franchome serf
que long tenure de frank fieu ne fait home serf frank, car franchise ne
soy defait jammes par prescription de temps.' P. 166: 'Servage est un
subjection issuant de cy grand antiquite, que nul frank ceppe ne purra
estre trouve par human remembrance.' Cf. Britton, i. 196.
[857] P. 167: 'ou si son seignior luy eject de son fief, et luy done
sustenance (_corr._ ne luy done sustenance).' 294: 'Abusion est que home
puisse challenger celuy pur son naife a que il ne trova unque
sustenance, de sicome serf nest _my serf forsque tant come il est en
gard_, et de sicome nul ne poet challenger son serf pur serf tout soit
il en sa garde s'il retrouve (_corr._ ne trouve) sustenance a son serf
que luy vault mees et terre en son fief, ou il purra gaigner sa
sustenance, ou autrement luy retient en son service.' Cf. 169.
[858] Cf. p. 155.
[859] P. 166.
[860] P. 294.
[861] Ib. p. 294. 'Abusion est que serfs sont frank pledges ou pledges
de frank home.' Cf. 110.
[862] P. 169. 'Nota que villeins ne sont my serfs car serfs sont dits de
garder sicom est dit.' 295: 'Abusion est a tenir villeins serfs, et
ceste abusion merust grand destruction de poor people, grand poverty, et
grand peche.'
[863] P. 291: 'Abusion est que lon dit que villenage neste my frank
tenement ... car villein et serf ne sont my en (_corr._ un) voice, ne en
(_corr._ un) signification, eins poet chascun frank home tenir villenage
a luy et a ses heires fesant le servage et le charge del fiew.'
[864] P. 170: 'Ascuns receverent fiefs assoubs de chescun obligation
sicome per service faire ou en pure almoigne, ascuns a tenir par homage,
et en service al defense del Realme, et ascuns par villeins customes
d'arrer, over charrier, sarclir, franchir, seier, tasser, batre ou tilt
autres manners de services, et ascun foits sans reprise de manger; et
dont plusors fines sont troves levees en le tresore que font mencion de
ceux services et viles customes faire, aussi bien come autres de pluis
curtoise services, et dount tout soit que tiels gents _ne eient point de
chartres, ne monuments_ sils soient nequident engettes ou disturbes de
lour possessions a tort, _droit les succort per l'assize de novel
disseisine_ attenir en le state come devant per cy que ils puissent
_averrer que ils scavoient lour certaintie de services et doveraignes
per an come ceux que auncestres avant eux furent astrers de pluis longe
temps per case que les disseisors nen furent seigniors_.'
[865] 169: 'Villeins sont cultivers de fief demorants en villages
uplande, car de Vile est dit Villeins, de Burgh Bourghois, et de Cite
Cittizens, et de Villeins est mencion fait en le Chartre de Franchise,
ou est dit, que villein ne soit mie cy grivement amercie que sa gaigneur
ne soit a luy salve, car de serf ne fait il my mention pur ceo que ils
ount rien propre que perdrent. Et de Villeins sont lour gaignures
appelle Villenages.'
[866] 167. On the other hand it is mentioned, that serfs cannot be
devised because they are astriers and annexed to the free tenement of
the lord.
[867] 171: 'Et de _ceo soy entremist Seint Edward_ en son temps
d'enquirer de toutes les ... que luy fesoit a tiel gaignors oustre lour
droit et en fist grande vengeance. Et puis pargents que meins doulent
pecheir que faire ne duissent sont plusiours ceux villeins _par tortious
distresses chasses a faire a lour seignours le service de Rechat de
sank_, et plusors autre customes voluntaries pur mener les en servage a
lour poiar, dont _lour remedie per le ne injuste vexes per les
negligence des Royes_' (the end of the sentence is evidently omitted or
'is falling into disuse' must have been meant).--p. 305: '_abusion est
que le briefe de ne injuste vexes va issint en decline_.'
[868] It ought to be mentioned that the hundreds to which suit is due
belonged to the Church of Ely.
[869] Rot Hundr. ii. 82: 'Walterus de Pedecorthin est dominus (de
Ingwethin), in qua est una virgata terre et facit sectam ad hundredum
bis in anno, set non ad parva hundreda nec ad comitatum, nesciunt quo
warranto.' ii. 201: 'Decena de Larncynge solebat facere sectam ad dictum
hundredum de Bretford set de consensu W. de Breuse dicta decena divisa
fuit in duas partes. Ita quod una pars secta ad curiam domini de
Brawatere et alia medietas ad dictum hundredum de Bretford ad dampnum
domini dicti hundredi 5 solidorum per annum:' ii. 195: '8 homines de
homagio Johannis le Butiler in Stones et Boxham qui debent facere sectam
ad predictum hundredum subtraxerunt sectam suam ad duo hundreda
generalia per annum et unus predictorum hominum retraxit sectam suam per
totum annum debitam.'
[870] R.H. ii. 597. Cf. 469, 470.
[871] Exch. Q.R. Misc. Books A. 29, f. 64, b: 'Nota--predictus Ricardus
(de Loges) dicit se _non habere Warentum aliquem nisi per antiquam
tenuram sine carta...._ Idem Ricardus habet visum franci plegii unde
vocat ad warantum le Domesday (!) ... Idem Ricardus tenet quicquid tenet
in Soume de comite Cestrie, ut idem Ricardus dicit, per seruicium
ducendi comitem Cestrie usque curiam Regis per medietatem foreste
predicte de Kanoke, obviando ei ad pontem de Rocford ad mandatum comitis
et idem comes dabit unam sagittam barbatam dicto Ricardo et capiat in
foresta unam feram si voluerit eundo et aliam redeundo si voluerit, et
in redeundo obviabit ei ad pontem de Repelwas ad mandatum comitis et
dabit ei aliam sagittam.' Cf. Rot. Hundr. ii. 689: '[Libere tenentes]
Johanna Galard tenet in eadem dimidiam virgatam terrae de dono Willelmi
fratris sui et reddit eidem per annum 6 d. et idem Willelmus tenet _de
hereditate per defensum antecessorum suorum qui dictam dimidiam virgatam
terrae habuerunt de dono Regis cujus nomen ignoramus_.' Thomas Wyteman
tenet in eadem I virgatam terrae de Philippo de Lenettale, _et est de
confirmacione Regis, ut dicta dimidia virgata terrae prescripta_. I have
already quoted this passage in the note on the hundredors. I give it as
corrected according to the MS. in the Record Office. In the printed
version of the Hundred Rolls it has lost its meaning.
[872] R.H. ii. 477, 478. '_Libere tenentes._ Robertus de Aula tenet in
predicta villa duas virgatas terre de Abbate de Ramesaye de antiquo
conquestu et supradictas septem virgatas similiter de antiquo et facit
sectam curie bis per annum et si brevis domini Regis ibi sit faciet
sectam de tribus septimanis.... Robertus Mariot tenet 5 virgatas terre
de Roberto de Aula de feodo Episcopi Elyensis de antiquo feffamento.'
[873] Rot. Hundr. ii. 656, 660. Cf. as to the meaning of antiqua tenura,
etc. Rot. Hundr. i. 79, 354.
[874] Exch. Q.R. Misc. Books, No. 29, f. 7: 'Idem Edmundus habet libere
tenentes subscriptos. Ricardus de Hulle tenet unum mesuagium et 8 acras
terre pro 14 solidis et secta ad curiam suam ibidem de tribus septimanis
in tres septimanas (about ten similar holdings) et sciendum quod omnes
predicti debent sectam predictam et tenent _per fidelitatem et nullum
faciunt homagium_.'
[875] Bracton, f. 33 b. Madox, Formulare Anglicanum.
[876] Coram Rege, Pascha 6 Edw. I, f. 6, 6: 'Et requisitus si aliquid
scit dicere quare predictum mesuagium quod est infra predictum manerium
esse non debeat de condicione antiqui dominici Regis, utpote per
feoffamentum domini Regis vel antecessorum suorum,' etc. Cf. Placit.
Abbrev. 150 (quoted p. 113, n. 4).
[877] Besides the extracts from the Stoneleigh Register quoted on p.
113, n. 1, and p. 198, n. 1, I may be allowed to call attention to f.
76: 'Item nullus adiudicabitur tenens terre nisi _quia curia tenens
acceptatur_ per fidelitatem et alias consuetudines licet tenens extra
curiam aliquem feoffaverit per cartam vel sine carta.' Maitland,
Manorial Rolls of King's Ripton (Selden Soc. ii). p. 122: 'Capiatur in
manum domini quarta pars unius rode prati jacens in Smalemade quam
Rogerus Greyling vendidit Nicholao le Neuman _sine licencia curie_.' Cf.
as to the references to the Court-roll in case of doubt and contention.
Augmentation Off. Court Rolls, Ripton Regis, xxiii, N. 94, f. 10: 'Et
quod iuncta est secum vocat _rotulos ad Warantum_. Et predicta Mathildis
dicit quod uxor eius non est iuncta et ponit se super rotulos.' Now the
importance of the Roll is derived from the authority of the Court of
which it records the proceedings.
[878] Rot. Hundr. i. p. 104: 'Sokemanni _domini Regis de Soka de_
Piclinton tenere solebant 3 carucatas terre et unam bovatam in Brunneby
de antecessoribus Radulfi de Lacely et ipso Radulfo. De quibus
hospitalarii habent unam bovatam de dono antecessorum dicti Radulfi....
Item prior de Elreton 4 bovatas ... que sunt de tenura sokemannorum.'
These are free men under Soke, but there is not much to distinguish them
from people on ancient demesne soil. Cf. Maddox, Exch. 428, c: 'Liberi
sokemanni de Askebi et Tinton reddunt compotum de 20 marcis et I
palefridi ut Henricus de Nevill eos juste deducat de tenementis quae
tenent in eisdem villis, nec ab eis exigat consuetudines vel servitia
quae facere non solebant tempore Henrici Regis patris Regis,' etc.
Transcriber's Notes:
{a single Greek word has been transliterated}
Pg 199. n 1. [413] 'See Appendix x' changed to 'See Appendix xii'.
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