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+The Project Gutenberg EBook of Villainage in England, by Paul Vinogradoff
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Villainage in England
+       Essays in English Mediaeval History
+
+Author: Paul Vinogradoff
+
+Release Date: February 14, 2012 [EBook #38876]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK VILLAINAGE IN ENGLAND ***
+
+
+
+
+Produced by David Clarke, Rory OConor and the Online
+Distributed Proofreading Team at https://www.pgdp.net (This
+file was produced from images generously made available
+by The Internet Archive/Canadian Libraries)
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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'.
+
+
+
+
+
+End of Project Gutenberg's Villainage in England, by Paul Vinogradoff
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+
+The Project Gutenberg EBook of Villainage in England, by Paul Vinogradoff
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+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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+*** START OF THIS PROJECT GUTENBERG EBOOK VILLAINAGE IN ENGLAND ***
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+</pre>
+
+<p><span class="pagenum"><a name="Page_i" id="Page_i"></a></span></p>
+
+<h1>Villainage in England</h1>
+
+<h3>VINOGRADOFF</h3>
+<p><span class="pagenum"><a name="Page_ii" id="Page_ii"></a></span></p>
+
+<h1 class="p6">Villainage in England</h1>
+
+<p class="center">ESSAYS IN<br />
+ENGLISH MEDIAEVAL HISTORY</p>
+
+<h3><small>BY</small><br />
+SIR PAUL VINOGRADOFF</h3>
+
+<p class="center p6">OXFORD<br />
+AT THE CLARENDON PRESS</p>
+<p><span class="pagenum"><a name="Page_iv" id="Page_iv"></a></span></p>
+
+<p class="center p6"><i>Oxford University Press, Ely House, London W. 1</i></p>
+
+<p class="center">GLASGOW &nbsp; NEW&nbsp;YORK &nbsp; TORONTO &nbsp; MELBOURNE &nbsp; WELLINGTON &nbsp;
+CAPE&nbsp;TOWN &nbsp; SALISBURY &nbsp; IBADAN &nbsp; NAIROBI &nbsp; LUSAKA &nbsp; ADDIS&nbsp;ABABA &nbsp;
+BOMBAY &nbsp; CALCUTTA &nbsp; MADRAS &nbsp; KARACHI &nbsp; LAHORE &nbsp; DACCA &nbsp;
+KUALA&nbsp;LUMPUR &nbsp; HONG&nbsp;KONG &nbsp; TOKYO</p>
+
+<p class="center p6">FIRST PUBLISHED 1892<br />
+REPRINTED LITHOGRAPHICALLY IN GREAT BRITAIN<br />
+AT THE UNIVERSITY PRESS, OXFORD<br />
+BY VIVIAN RIDLER<br />
+PRINTER TO THE UNIVERSITY<br />
+1968
+</p>
+<hr class="chap" /><p><span class="pagenum"><a name="Page_v" id="Page_v"></a></span></p>
+
+<h2 class="p6"><a name="PREFACE" id="PREFACE"></a>PREFACE</h2>
+
+<hr class="r5" />
+
+
+<p>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?</p>
+
+<p>The first question is easier to answer than the second.</p>
+
+<p>There are many reasons why we in Russia are especially
+keen to study what may be called social history&mdash;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.</p>
+
+<p>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<span class="pagenum"><a name="Page_vi" id="Page_vi">vi</a></span>
+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.</p>
+
+<p>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<span class="pagenum"><a name="Page_vii" id="Page_vii">vii</a></span>
+and biological generalisations have put into order our knowledge
+of the phenomena of nature.</p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_viii" id="Page_viii">viii</a></span>
+fully alive to the importance of those studies in spite of
+their dry details.</p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_ix" id="Page_ix">ix</a></span>
+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<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a>. 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_x" id="Page_x">x</a></span>
+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&mdash;always willing
+and able to find exactly what was wanted for my researches.</p>
+
+<p>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.</p>
+
+<p class="right">
+PAUL VINOGRADOFF.
+</p>
+<hr class="chap" /><p><span class="pagenum"><a name="Page_xi" id="Page_xi">xi</a></span></p>
+
+
+
+
+<h2><a name="CONTENTS" id="CONTENTS"></a>CONTENTS</h2>
+
+
+
+<div class="center">
+<table border="0" cellpadding="4" cellspacing="0" summary="Table of Contents">
+<tr><td align="left"></td><td align="right">PAGE</td></tr>
+<tr><td align="left"><a href="#INTRODUCTION">INTRODUCTION</a></td><td align="right">1</td></tr>
+<tr><td align="center" colspan="2"><big><a href="#FIRST_ESSAY">FIRST ESSAY.</a></big></td></tr>
+<tr><td align="center" colspan="2"><i>The Peasantry of the Feudal Age.</i></td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_1_I">CHAPTER I.</a></td></tr>
+<tr><td align="left"><span class="smcap">The Legal Aspect of Villainage. General Conceptions</span></td><td align="right">43</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_1_II">CHAPTER II.</a></td></tr>
+<tr><td align="left"><span class="smcap">Rights and Disabilities of the Villain</span></td><td align="right">59</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_1_III">CHAPTER III.</a></td></tr>
+<tr><td align="left"><span class="smcap">Ancient Demesne</span></td><td align="right">89</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_1_IV">CHAPTER IV.</a></td></tr>
+<tr><td align="left"><span class="smcap">Legal Aspect of Villainage. Conclusions</span></td><td align="right">127</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_1_V">CHAPTER V.</a></td></tr>
+<tr><td align="left"><span class="smcap">The Servile Peasantry of Manorial Records</span></td><td align="right">138</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_1_VI">CHAPTER VI.</a></td></tr>
+<tr><td align="left"><span class="smcap">Free Peasantry</span></td><td align="right">178</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_1_VII">CHAPTER VII.</a></td></tr>
+<tr><td align="left"><span class="smcap">The Peasantry of the Feudal Age. Conclusions</span></td><td align="right">211<span class="pagenum"><a name="Page_xii" id="Page_xii">xii</a></span></td></tr>
+<tr><td align="center" colspan="2"><big><a href="#SECOND_ESSAY">SECOND ESSAY.</a></big></td></tr>
+<tr><td align="center" colspan="2"><i>The Manor and the Village Community.</i></td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_2_I">CHAPTER I.</a></td></tr>
+<tr><td align="left"><span class="smcap">The Open Field System and the Holdings</span></td><td align="right">223</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_2_II">CHAPTER II.</a></td></tr>
+<tr><td align="left"><span class="smcap">Rights of Common</span></td><td align="right">259</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_2_III">CHAPTER III.</a></td></tr>
+<tr><td align="left"><span class="smcap">Rural Work and Rents</span></td><td align="right">278</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_2_IV">CHAPTER IV.</a></td></tr>
+<tr><td align="left"><span class="smcap">The Lord, his Servants and Free Tenants</span></td><td align="right">313</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_2_V">CHAPTER V.</a></td></tr>
+<tr><td align="left"><span class="smcap">The Manorial Courts</span></td><td align="right">354</td></tr>
+<tr><td align="center" colspan="2"><a href="#CHAPTER_2_VI">CHAPTER VI.</a></td></tr>
+<tr><td align="left"><span class="smcap">The Manor and the Village Community. Conclusions</span></td><td align="right">397</td></tr>
+<tr><td align="left"><a href="#APPENDIX">APPENDIX</a></td><td align="right">411</td></tr>
+<tr><td align="left"><a href="#INDEX">INDEX</a></td><td align="right">461</td></tr>
+<tr><td align="left"><a href="#FOOTNOTES">FOOTNOTES</a></td></tr>
+</table></div>
+
+<hr class="chap" /><p><span class="pagenum"><a name="Page_1" id="Page_1"></a></span></p>
+
+
+
+
+<h2><a name="INTRODUCTION" id="INTRODUCTION"></a>INTRODUCTION.</h2>
+
+
+<p>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<span class="pagenum"><a name="Page_2" id="Page_2">2</a></span>
+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.</p>
+
+<div class="sidenote">Progress of historical methods.</div>
+
+<p>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<span class="pagenum"><a name="Page_3" id="Page_3">3</a></span>
+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.</p>
+
+<div class="sidenote">Growing influence of history on kindred subjects.</div>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_4" id="Page_4">4</a></span>
+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.</p>
+
+<div class="sidenote">Sketch of the literary development of social history as a necessary introduction to its treatment.</div>
+
+<p>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<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">[2]</a> 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.</p>
+
+<div class="sidenote">Late recognition of the value of social history.</div>
+
+<p>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<span class="pagenum"><a name="Page_5" id="Page_5">5</a></span>
+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.</p>
+
+<div class="sidenote">Characteristics of the work done in the seventeenth and eighteenth centuries.</div>
+
+<p>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<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[3]</a>
+has artistically illustrated in France from the writings of
+Boulainvilliers and Dubos, Mably and Lézardière, could<span class="pagenum"><a name="Page_6" id="Page_6">6</a></span>
+certainly be matched in England by a tale of the historical
+argumentation of Brady<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[4]</a>, or Petyt<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">[5]</a>, 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:&mdash;"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.:&mdash;the happy effect of that excellent institution, in preventing
+robberies, riots, etc., whereby, in law, it was justly
+deemed 'Summa et maxima securitas:'&mdash;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<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">[6]</a>."</p>
+
+<p>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<span class="pagenum"><a name="Page_7" id="Page_7">7</a></span>
+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.</p>
+
+<div class="sidenote">Blackstone's Commentaries.</div>
+
+<p>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<a name="FNanchor_7_7" id="FNanchor_7_7"></a><a href="#Footnote_7_7" class="fnanchor">[7]</a>. 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_8" id="Page_8">8</a></span>
+compass of a very few years, the feudal constitution, or the
+doctrine of tenure, extended itself over all the western
+world.'</p>
+
+<p>'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 <i>imposed</i> 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.'</p>
+
+<p>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<span class="pagenum"><a name="Page_9" id="Page_9">9</a></span>
+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.</p>
+
+<p>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.</p><p><span class="pagenum"><a name="Page_10" id="Page_10">10</a></span></p>
+
+<div class="sidenote">Revolution in Historical literature. The Romantic school.</div>
+
+<p>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<a name="FNanchor_8_8" id="FNanchor_8_8"></a><a href="#Footnote_8_8" class="fnanchor">[8]</a>. 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&mdash;to the idea, namely, that the<span class="pagenum"><a name="Page_11" id="Page_11">11</a></span>
+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.</p>
+
+<p>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<a name="FNanchor_9_9" id="FNanchor_9_9"></a><a href="#Footnote_9_9" class="fnanchor">[9]</a>
+took up the demonstration that the Royal power in
+England had developed from the conceptions of the
+Roman Empire. Palgrave<a name="FNanchor_10_10" id="FNanchor_10_10"></a><a href="#Footnote_10_10" class="fnanchor">[10]</a> 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<a name="FNanchor_11_11" id="FNanchor_11_11"></a><a href="#Footnote_11_11" class="fnanchor">[11]</a>.</p>
+
+<div class="sidenote">Sir Francis Palgrave.</div>
+
+<p>The author sat down to his work before the Revolution
+of 1830, although his two volumes were published in 1832.<span class="pagenum"><a name="Page_12" id="Page_12">12</a></span>
+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.</p>
+
+<p>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<span class="pagenum"><a name="Page_13" id="Page_13">13</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>If we look at the results of all these migrations and
+ethnographical mixtures, we have first to notice the<span class="pagenum"><a name="Page_14" id="Page_14">14</a></span>
+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.</p>
+
+<p>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.<span class="pagenum"><a name="Page_15" id="Page_15">15</a></span>
+The mixed organisation of the township was the result of
+the assimilation.</p>
+
+<div class="sidenote">Estimate of Palgrave's work.</div>
+
+<p>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&mdash;on central power, feudalism, and agrarian
+organisation: the most recent of the Conquests&mdash;the
+Norman invasion&mdash;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.</p>
+
+<p>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&mdash;the
+intimate connexion between the external history of the
+Constitution and the working of private law in the courts&mdash;opened<span class="pagenum"><a name="Page_16" id="Page_16">16</a></span>
+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.</p>
+
+<div class="sidenote">Romanists and Germanists.</div>
+
+<p>The two great elements of Western civilisation&mdash;Roman
+tradition and Teutonic tendencies&mdash;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<a name="FNanchor_12_12" id="FNanchor_12_12"></a><a href="#Footnote_12_12" class="fnanchor">[12]</a>. But
+William the Bastard's invasion led him by a circuitous
+way to the real object of his interest&mdash;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<span class="pagenum"><a name="Page_17" id="Page_17">17</a></span>
+him with the present political condition of France as the
+abiding legacy of Gallo-Roman culture<a name="FNanchor_13_13" id="FNanchor_13_13"></a><a href="#Footnote_13_13" class="fnanchor">[13]</a>.</p>
+
+<p>Men of great power and note, from Raynouard<a name="FNanchor_14_14" id="FNanchor_14_14"></a><a href="#Footnote_14_14" class="fnanchor">[14]</a> and
+B. Guérard<a name="FNanchor_15_15" id="FNanchor_15_15"></a><a href="#Footnote_15_15" class="fnanchor">[15]</a> down to Fustel de Coulanges<a name="FNanchor_16_16" id="FNanchor_16_16"></a><a href="#Footnote_16_16" class="fnanchor">[16]</a> 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<a name="FNanchor_17_17" id="FNanchor_17_17"></a><a href="#Footnote_17_17" class="fnanchor">[17]</a>,
+Waitz<a name="FNanchor_18_18" id="FNanchor_18_18"></a><a href="#Footnote_18_18" class="fnanchor">[18]</a>, and Roth<a name="FNanchor_19_19" id="FNanchor_19_19"></a><a href="#Footnote_19_19" class="fnanchor">[19]</a>&mdash;to speak only of the heads of the
+school&mdash;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,<span class="pagenum"><a name="Page_18" id="Page_18">18</a></span>
+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<a name="FNanchor_20_20" id="FNanchor_20_20"></a><a href="#Footnote_20_20" class="fnanchor">[20]</a>. 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.</p>
+
+<div class="sidenote">Kemble.</div>
+
+<p>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<span class="pagenum"><a name="Page_19" id="Page_19">19</a></span>
+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.</p>
+
+<p>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&frac12; 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_20" id="Page_20">20</a></span>
+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&mdash;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.</p>
+
+<p>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.<span class="pagenum"><a name="Page_21" id="Page_21">21</a></span>
+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&mdash;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.</p>
+
+<p>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&mdash;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.</p>
+
+<div class="sidenote">K. Maurer.</div>
+
+<p>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<a name="FNanchor_21_21" id="FNanchor_21_21"></a><a href="#Footnote_21_21" class="fnanchor">[21]</a>. He is perhaps sometimes inclined to magnify<span class="pagenum"><a name="Page_22" id="Page_22">22</a></span>
+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<a name="FNanchor_22_22" id="FNanchor_22_22"></a><a href="#Footnote_22_22" class="fnanchor">[22]</a>. 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.</p>
+
+<div class="sidenote">Freeman.</div>
+
+<p>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<span class="pagenum"><a name="Page_23" id="Page_23">23</a></span>
+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.</p>
+
+<div class="sidenote">Stubbs.</div>
+
+<p>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<span class="pagenum"><a name="Page_24" id="Page_24">24</a></span>
+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.</p>
+
+<div class="sidenote">Gneist.</div>
+
+<p>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<span class="pagenum"><a name="Page_25" id="Page_25">25</a></span>
+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.<a name="FNanchor_23_23" id="FNanchor_23_23"></a><a href="#Footnote_23_23" class="fnanchor">[23]</a></p>
+
+<div class="sidenote">The Mark system.</div>
+
+<p>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<span class="pagenum"><a name="Page_26" id="Page_26">26</a></span>
+Maurer and Hanssen stand out as the main initiators of
+the new movement in our studies. The many volumes
+devoted by G.F. Maurer<a name="FNanchor_24_24" id="FNanchor_24_24"></a><a href="#Footnote_24_24" class="fnanchor">[24]</a> 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<a name="FNanchor_25_25" id="FNanchor_25_25"></a><a href="#Footnote_25_25" class="fnanchor">[25]</a> 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.</p>
+
+<div class="sidenote">Nasse.</div>
+
+<p>Nasse's pamphlet on the village community<a name="FNanchor_26_26" id="FNanchor_26_26"></a><a href="#Footnote_26_26" class="fnanchor">[26]</a> 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_27" id="Page_27">27</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_28" id="Page_28">28</a></span>
+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.</p>
+
+<div class="sidenote">Maine.</div>
+
+<p>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&mdash;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<span class="pagenum"><a name="Page_29" id="Page_29">29</a></span>
+the lord, carries feudal notions back into too early a
+period.</p>
+
+<p>The real question as conceived by Maine is this&mdash;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<a name="FNanchor_27_27" id="FNanchor_27_27"></a><a href="#Footnote_27_27" class="fnanchor">[27]</a>.</p>
+
+<p>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<span class="pagenum"><a name="Page_30" id="Page_30">30</a></span>
+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.</p>
+
+<div class="sidenote">Reactionary movement.</div>
+
+<p>Late years have witnessed everywhere in Europe a
+movement of thought which would have been called
+reactionary some twenty years ago<a name="FNanchor_28_28" id="FNanchor_28_28"></a><a href="#Footnote_28_28" class="fnanchor">[28]</a>. 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<span class="pagenum"><a name="Page_31" id="Page_31">31</a></span>
+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&mdash;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.</p>
+
+<p>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<span class="pagenum"><a name="Page_32" id="Page_32">32</a></span>
+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<a name="FNanchor_29_29" id="FNanchor_29_29"></a><a href="#Footnote_29_29" class="fnanchor">[29]</a>: 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&mdash;Fustel de Coulanges&mdash;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.</p>
+
+<div class="sidenote">Seebohm.</div>
+
+<p>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<span class="pagenum"><a name="Page_33" id="Page_33">33</a></span>
+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 <i>coloni</i>
+clustered&mdash;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&mdash;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.</p>
+
+<p>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<span class="pagenum"><a name="Page_34" id="Page_34">34</a></span>
+of society in England starts from the position of Roman
+provincial soil.</p>
+
+<p>The Saxon invasion did not destroy what it found in
+the island. Roman villas and their labourers passed from
+one lord to the other&mdash;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.</p>
+
+<p>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<span class="pagenum"><a name="Page_35" id="Page_35">35</a></span>
+subject has been powerful enough to necessitate a reconsideration
+of all its chief points.</p>
+
+<div class="sidenote">Results attained by conflict between successive theories.</div>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_36" id="Page_36">36</a></span>
+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.</p>
+
+<p>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<span class="pagenum"><a name="Page_37" id="Page_37">37</a></span>
+reckoned with in all attempts to estimate definitely its
+bearing and strength.</p>
+
+<p>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.</p>
+
+<p>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&mdash;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&mdash;if I may be
+allowed to use this expression&mdash;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&mdash;the organising force of aristocratic
+property has been acknowledged and has come to its rights.</p><p><span class="pagenum"><a name="Page_38" id="Page_38">38</a></span></p>
+
+<p>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&mdash;'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<span class="pagenum"><a name="Page_39" id="Page_39">39</a></span>
+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.</p>
+<hr class="chap" /><p><span class="pagenum"><a name="Page_40" id="Page_40"></a><br /><a name="Page_41" id="Page_41"></a></span></p>
+
+
+
+
+<h2><a name="FIRST_ESSAY" id="FIRST_ESSAY"></a>FIRST ESSAY.</h2>
+
+<h2>THE PEASANTRY OF THE FEUDAL AGE.</h2>
+<hr class="chap" />
+<p><span class="pagenum"><a name="Page_42" id="Page_42"></a><br /><a name="Page_43" id="Page_43"></a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_1_I" id="CHAPTER_1_I"></a>CHAPTER I.</h2>
+
+<p class="center">THE LEGAL ASPECT OF VILLAINAGE. GENERAL
+CONCEPTIONS.</p>
+
+
+<div class="sidenote">Medieval serfdom.</div>
+
+<p>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.</p>
+
+<p>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.</p><p><span class="pagenum"><a name="Page_44" id="Page_44">44</a></span></p>
+
+<div class="sidenote">Importance of legal treatment.</div>
+
+<p>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.</p>
+
+<p>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<a name="FNanchor_30_30" id="FNanchor_30_30"></a><a href="#Footnote_30_30" class="fnanchor">[30]</a>.
+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<a name="FNanchor_31_31" id="FNanchor_31_31"></a><a href="#Footnote_31_31" class="fnanchor">[31]</a>.
+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.</p>
+
+<div class="sidenote">Definition and terminology of villainage at Common Law.</div>
+
+<p>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 <i>ascripticii</i>,
+they may transfer them wherever they please, 'and
+sell or otherwise alienate them if they like<a name="FNanchor_32_32" id="FNanchor_32_32"></a><a href="#Footnote_32_32" class="fnanchor">[32]</a>.' Glanville and
+Bracton, Fleta and Britton<a name="FNanchor_33_33" id="FNanchor_33_33"></a><a href="#Footnote_33_33" class="fnanchor">[33]</a> follow in substance the same
+doctrine, although they use different terms. They appropriate<span class="pagenum"><a name="Page_45" id="Page_45">45</a></span>
+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: <i>servus</i>, <i>villanus</i>, and
+<i>nativus</i> 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<a name="FNanchor_34_34" id="FNanchor_34_34"></a><a href="#Footnote_34_34" class="fnanchor">[34]</a>. The close connexion between the
+terms is well illustrated by the early use of <i>nativa</i>, nieve,
+'as a feminine to <i>villanus</i>.'</p>
+
+<div class="sidenote">Treatment of villainage in legal practice.</div>
+
+<p>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<a name="FNanchor_35_35" id="FNanchor_35_35"></a><a href="#Footnote_35_35" class="fnanchor">[35]</a>. Nor could the villain have any help<span class="pagenum"><a name="Page_46" id="Page_46">46</a></span>
+as to the amount and the nature of his services<a name="FNanchor_36_36" id="FNanchor_36_36"></a><a href="#Footnote_36_36" class="fnanchor">[36]</a>; 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<a name="FNanchor_37_37" id="FNanchor_37_37"></a><a href="#Footnote_37_37" class="fnanchor">[37]</a>. 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<a name="FNanchor_38_38" id="FNanchor_38_38"></a><a href="#Footnote_38_38" class="fnanchor">[38]</a>.' The state refuses to regulate the<span class="pagenum"><a name="Page_47" id="Page_47">47</a></span>
+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<a name="FNanchor_39_39" id="FNanchor_39_39"></a><a href="#Footnote_39_39" class="fnanchor">[39]</a>. 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<a name="FNanchor_40_40" id="FNanchor_40_40"></a><a href="#Footnote_40_40" class="fnanchor">[40]</a>.</p>
+
+<div class="sidenote">Identification with Roman slavery.</div>
+
+<p>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 <i>servus</i>, <i>villanus</i>, and <i>nativus</i> 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 <i>adscripticii</i> or <i>coloni</i> 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<span class="pagenum"><a name="Page_48" id="Page_48">48</a></span>
+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.</p>
+
+<div class="sidenote">Villains in gross and villains regardant.</div>
+
+<p>Most modern writers on the subject have laid stress upon
+a difference between <i>villains regardant</i> and <i>villains in gross</i>,
+said to be found in the law books<a name="FNanchor_41_41" id="FNanchor_41_41"></a><a href="#Footnote_41_41" class="fnanchor">[41]</a>. It has been taken to
+denote two degrees of servitude&mdash;the predial dependence
+of a <i>colonus</i> and the personal dependence of a true slave.
+The villain <i>regardant</i> 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_49" id="Page_49">49</a></span>
+affected only the mode of pleading. The term <i>in gross</i> 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.</p>
+
+<div class="sidenote">Littleton's view.</div>
+
+<p>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<a name="FNanchor_42_42" id="FNanchor_42_42"></a><a href="#Footnote_42_42" class="fnanchor">[42]</a>' (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<span class="pagenum"><a name="Page_50" id="Page_50">50</a></span>
+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<a name="FNanchor_43_43" id="FNanchor_43_43"></a><a href="#Footnote_43_43" class="fnanchor">[43]</a>. 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.</p>
+
+<div class="sidenote">The 'villain regardant' of the Year Books.</div>
+
+<p>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<a name="FNanchor_44_44" id="FNanchor_44_44"></a><a href="#Footnote_44_44" class="fnanchor">[44]</a>. An examination of the reports in
+the age of the Edwards will show at once that the terms
+<i>regardant</i> and <i>in gross</i> 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&mdash;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<span class="pagenum"><a name="Page_51" id="Page_51">51</a></span>
+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&mdash;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.</p>
+
+<p>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<a name="FNanchor_45_45" id="FNanchor_45_45"></a><a href="#Footnote_45_45" class="fnanchor">[45]</a>. 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<span class="pagenum"><a name="Page_52" id="Page_52">52</a></span>
+the term '<i>regardant</i>,' but it is not forthcoming<a name="FNanchor_46_46" id="FNanchor_46_46"></a><a href="#Footnote_46_46" class="fnanchor">[46]</a>. 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<a name="FNanchor_47_47" id="FNanchor_47_47"></a><a href="#Footnote_47_47" class="fnanchor">[47]</a>.' 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<a name="FNanchor_48_48" id="FNanchor_48_48"></a><a href="#Footnote_48_48" class="fnanchor">[48]</a>. In a case of 1322, for instance, we have<span class="pagenum"><a name="Page_53" id="Page_53">53</a></span>
+'within the manor' where we should expect to find
+'regardant to the manor<a name="FNanchor_49_49" id="FNanchor_49_49"></a><a href="#Footnote_49_49" class="fnanchor">[49]</a>.' This would be very nearly
+equivalent to the Latin formula adopted by the Plea Rolls,
+which is simply <i>ut de manerio</i><a name="FNanchor_50_50" id="FNanchor_50_50"></a><a href="#Footnote_50_50" class="fnanchor">[50]</a>. 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 (<i>qil est nostre
+vileyn</i>, 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<a name="FNanchor_51_51" id="FNanchor_51_51"></a><a href="#Footnote_51_51" class="fnanchor">[51]</a>. 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&mdash;it was ground common to both
+parties that if the lord had any rights at all he acquired
+them by inheritance.</p>
+
+<div class="sidenote">Prior of the Hospitalers <i>v.</i> Thomas Barentyn and Ralph Crips.</div>
+
+<p>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<span class="pagenum"><a name="Page_54" id="Page_54">54</a></span>
+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<a name="FNanchor_52_52" id="FNanchor_52_52"></a><a href="#Footnote_52_52" class="fnanchor">[52]</a>.</p>
+
+<p>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<span class="pagenum"><a name="Page_55" id="Page_55">55</a></span>
+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&mdash;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.</p>
+
+<div class="sidenote">Results as to 'villain regardant' and 'villain in gross.'</div>
+
+<p>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.</p>
+
+<p>As to the outcome of the whole inquiry, we may, it
+seems to me, safely establish the following points: 1.&nbsp;The
+terms 'regardant' and 'in gross' have nothing to do with
+a legal distinction of status. 2.&nbsp;They come up in connexion
+with the modes of proof and pleading during
+the fourteenth century. 3.&nbsp;They may apply to the same
+person from different points of view. 4.&nbsp;'Villain in gross'<span class="pagenum"><a name="Page_56" id="Page_56">56</a></span>
+means a villain without further qualification; 'villain
+regardant to a manor' means villain by reference to a
+manor. 5.&nbsp;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.</p>
+
+<div class="sidenote">The astrier.</div>
+
+<p>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 <i>astrier</i> 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<a name="FNanchor_53_53" id="FNanchor_53_53"></a><a href="#Footnote_53_53" class="fnanchor">[53]</a> ('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 <i>atrio</i> or
+<i>astro</i>) with the former owner<a name="FNanchor_54_54" id="FNanchor_54_54"></a><a href="#Footnote_54_54" class="fnanchor">[54]</a>, and in such or a similar
+sense the word appears to have been usually employed
+by lawyers<a name="FNanchor_55_55" id="FNanchor_55_55"></a><a href="#Footnote_55_55" class="fnanchor">[55]</a>. On the other hand, if we look in Bracton's
+treatise for parallel passages to those quoted from the Fleta<span class="pagenum"><a name="Page_57" id="Page_57">57</a></span>
+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<a name="FNanchor_56_56" id="FNanchor_56_56"></a><a href="#Footnote_56_56" class="fnanchor">[56]</a>, and
+so there is nothing to denote special condition in the <i>astrier</i>.
+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.</p>
+
+<div class="sidenote">The territorial hold of villainage.</div>
+
+<p>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.</p>
+
+<p>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 <i>colonatus</i>. 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<span class="pagenum"><a name="Page_58" id="Page_58">58</a></span>
+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.</p>
+<hr class="chap" /><p><span class="pagenum"><a name="Page_59" id="Page_59">59</a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_1_II" id="CHAPTER_1_II"></a>CHAPTER II.</h2>
+
+<p class="center">RIGHTS AND DISABILITIES OF THE VILLAIN.</p>
+
+
+<p>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.</p>
+
+<div class="sidenote">Villainage by birth.</div>
+
+<p>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<a name="FNanchor_57_57" id="FNanchor_57_57"></a><a href="#Footnote_57_57" class="fnanchor">[57]</a>, and that a<span class="pagenum"><a name="Page_60" id="Page_60">60</a></span>
+bastard was to be accepted as <i>filius nullius</i> and presumed
+free<a name="FNanchor_58_58" id="FNanchor_58_58"></a><a href="#Footnote_58_58" class="fnanchor">[58]</a>. 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<a name="FNanchor_59_59" id="FNanchor_59_59"></a><a href="#Footnote_59_59" class="fnanchor">[59]</a>. 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<a name="FNanchor_60_60" id="FNanchor_60_60"></a><a href="#Footnote_60_60" class="fnanchor">[60]</a>.
+The Roman lawyer merely looked to the question of
+status and decided it on the ground of material demonstrability
+of origin<a name="FNanchor_61_61" id="FNanchor_61_61"></a><a href="#Footnote_61_61" class="fnanchor">[61]</a>, 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&mdash;one applicable to legitimate
+children, the other to bastards. In case of <i>bastardy</i>
+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<a name="FNanchor_62_62" id="FNanchor_62_62"></a><a href="#Footnote_62_62" class="fnanchor">[62]</a>. In
+case of <i>legitimacy</i> 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<span class="pagenum"><a name="Page_61" id="Page_61">61</a></span>
+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<a name="FNanchor_63_63" id="FNanchor_63_63"></a><a href="#Footnote_63_63" class="fnanchor">[63]</a>. 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<a name="FNanchor_64_64" id="FNanchor_64_64"></a><a href="#Footnote_64_64" class="fnanchor">[64]</a>, 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.</p>
+
+<p>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,<span class="pagenum"><a name="Page_62" id="Page_62">62</a></span>
+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<a name="FNanchor_65_65" id="FNanchor_65_65"></a><a href="#Footnote_65_65" class="fnanchor">[65]</a>. 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<a name="FNanchor_66_66" id="FNanchor_66_66"></a><a href="#Footnote_66_66" class="fnanchor">[66]</a>. 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<a name="FNanchor_67_67" id="FNanchor_67_67"></a><a href="#Footnote_67_67" class="fnanchor">[67]</a>. In any case,
+however, the instances which we have been discussing<span class="pagenum"><a name="Page_63" id="Page_63">63</a></span>
+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.</p>
+
+<div class="sidenote">Prescription.</div>
+
+<p>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<a name="FNanchor_68_68" id="FNanchor_68_68"></a><a href="#Footnote_68_68" class="fnanchor">[68]</a>
+were strangers.</p>
+
+<p>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<a name="FNanchor_69_69" id="FNanchor_69_69"></a><a href="#Footnote_69_69" class="fnanchor">[69]</a>. 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<span class="pagenum"><a name="Page_64" id="Page_64">64</a></span>
+to go back to the sixth generation to establish his freedom.<a name="FNanchor_70_70" id="FNanchor_70_70"></a><a href="#Footnote_70_70" class="fnanchor">[70]</a>
+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.<a name="FNanchor_71_71" id="FNanchor_71_71"></a><a href="#Footnote_71_71" class="fnanchor">[71]</a> 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.</p>
+
+<div class="sidenote">Criminal law in its relation to villainage.</div>
+
+<p>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,<a name="FNanchor_72_72" id="FNanchor_72_72"></a><a href="#Footnote_72_72" class="fnanchor">[72]</a> but this feature seems to have become<span class="pagenum"><a name="Page_65" id="Page_65">65</a></span>
+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<a name="FNanchor_73_73" id="FNanchor_73_73"></a><a href="#Footnote_73_73" class="fnanchor">[73]</a>. The main fact remains, that both
+villains and free men were alike able to prosecute anybody
+by way of 'appeal'<a name="FNanchor_74_74" id="FNanchor_74_74"></a><a href="#Footnote_74_74" class="fnanchor">[74]</a> for injury to their life, honour,
+and even property<a name="FNanchor_75_75" id="FNanchor_75_75"></a><a href="#Footnote_75_75" class="fnanchor">[75]</a>, 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.</p>
+
+<p><span class="pagenum"><a name="Page_66" id="Page_66">66</a></span></p><div class="sidenote">Police in relation to villainage.</div>
+
+<p>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 (<i>plegium liberale</i>), which
+should have included every one 'worthy of his <i>were</i> and
+his <i>wite</i>,' is, as a matter of fact, a system which all through
+the feudal period is chiefly composed of villains<a name="FNanchor_76_76" id="FNanchor_76_76"></a><a href="#Footnote_76_76" class="fnanchor">[76]</a>. 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<a name="FNanchor_77_77" id="FNanchor_77_77"></a><a href="#Footnote_77_77" class="fnanchor">[77]</a>, 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
+<i>history</i> of the classes.</p>
+
+<p>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<span class="pagenum"><a name="Page_67" id="Page_67">67</a></span>
+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<a name="FNanchor_78_78" id="FNanchor_78_78"></a><a href="#Footnote_78_78" class="fnanchor">[78]</a>, with their important
+duties in the administration of justice, serve as a
+counterpoise to the exclusive employment of 'liberi et
+legales homines' on juries.</p>
+
+<div class="sidenote">Civil disability of a villain as to his lord.</div>
+
+<p>And now I come to the most intricate and important
+part of the subject&mdash;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<a name="FNanchor_79_79" id="FNanchor_79_79"></a><a href="#Footnote_79_79" class="fnanchor">[79]</a>. But<span class="pagenum"><a name="Page_68" id="Page_68">68</a></span>
+the working of these rules was limited by the medieval
+doctrine of possession. Land or goods acquired by the
+serf do not <i>eo ipso</i> lapse into his lord's possession, but only
+if the latter has taken them into his hand<a name="FNanchor_80_80" id="FNanchor_80_80"></a><a href="#Footnote_80_80" class="fnanchor">[80]</a>. 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<a name="FNanchor_81_81" id="FNanchor_81_81"></a><a href="#Footnote_81_81" class="fnanchor">[81]</a> 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<a name="FNanchor_82_82" id="FNanchor_82_82"></a><a href="#Footnote_82_82" class="fnanchor">[82]</a>. 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<span class="pagenum"><a name="Page_69" id="Page_69">69</a></span>
+actions<a name="FNanchor_83_83" id="FNanchor_83_83"></a><a href="#Footnote_83_83" class="fnanchor">[83]</a>. This of course does not mean that he has any
+action for recovering or defending his possession of the
+tenements which he holds <i>in villainage</i>, 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<a name="FNanchor_84_84" id="FNanchor_84_84"></a><a href="#Footnote_84_84" class="fnanchor">[84]</a>, 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<a name="FNanchor_85_85" id="FNanchor_85_85"></a><a href="#Footnote_85_85" class="fnanchor">[85]</a>. Again we come to
+an anomaly: the slave is free against everybody but his
+lord.</p>
+
+<p><span class="pagenum"><a name="Page_70" id="Page_70">70</a></span></p><div class="sidenote">Convention with the lord.</div>
+
+<p>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<a name="FNanchor_86_86" id="FNanchor_86_86"></a><a href="#Footnote_86_86" class="fnanchor">[86]</a>.
+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<a name="FNanchor_87_87" id="FNanchor_87_87"></a><a href="#Footnote_87_87" class="fnanchor">[87]</a>. 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<a name="FNanchor_88_88" id="FNanchor_88_88"></a><a href="#Footnote_88_88" class="fnanchor">[88]</a>.<span class="pagenum"><a name="Page_71" id="Page_71">71</a></span>
+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&mdash;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
+'<i>sibi et heredibus suis</i>.' We know what their meaning is&mdash;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<a name="FNanchor_89_89" id="FNanchor_89_89"></a><a href="#Footnote_89_89" class="fnanchor">[89]</a>. 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<a name="FNanchor_90_90" id="FNanchor_90_90"></a><a href="#Footnote_90_90" class="fnanchor">[90]</a>, 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<a name="FNanchor_91_91" id="FNanchor_91_91"></a><a href="#Footnote_91_91" class="fnanchor">[91]</a>. 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<span class="pagenum"><a name="Page_72" id="Page_72">72</a></span>
+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<a name="FNanchor_92_92" id="FNanchor_92_92"></a><a href="#Footnote_92_92" class="fnanchor">[92]</a>:&mdash;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<a name="FNanchor_93_93" id="FNanchor_93_93"></a><a href="#Footnote_93_93" class="fnanchor">[93]</a>.</p>
+
+<div class="sidenote">Legal practice as to conventions.</div>
+
+<p>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<span class="pagenum"><a name="Page_73" id="Page_73">73</a></span>
+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<a name="FNanchor_94_94" id="FNanchor_94_94"></a><a href="#Footnote_94_94" class="fnanchor">[94]</a>. 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<a name="FNanchor_95_95" id="FNanchor_95_95"></a><a href="#Footnote_95_95" class="fnanchor">[95]</a> 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<span class="pagenum"><a name="Page_74" id="Page_74">74</a></span>
+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<a name="FNanchor_96_96" id="FNanchor_96_96"></a><a href="#Footnote_96_96" class="fnanchor">[96]</a>.'
+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<a name="FNanchor_97_97" id="FNanchor_97_97"></a><a href="#Footnote_97_97" class="fnanchor">[97]</a>.</p>
+
+<div class="sidenote">Waynage.</div>
+
+<p>Again, we find in the beginning of Bracton's treatise a remark<a name="FNanchor_98_98" id="FNanchor_98_98"></a><a href="#Footnote_98_98" class="fnanchor">[98]</a>
+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 <i>intollerabilis
+injuria</i>, 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 <i>waynage</i>, i.e. plough
+and plough-team, the villain has an action.' It is true that<span class="pagenum"><a name="Page_75" id="Page_75">75</a></span>
+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<a name="FNanchor_99_99" id="FNanchor_99_99"></a><a href="#Footnote_99_99" class="fnanchor">[99]</a>.
+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<a name="FNanchor_100_100" id="FNanchor_100_100"></a><a href="#Footnote_100_100" class="fnanchor">[100]</a>.' 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<a name="FNanchor_101_101" id="FNanchor_101_101"></a><a href="#Footnote_101_101" class="fnanchor">[101]</a>. Of course, the protection of the
+peasant's prosperity, guaranteed by the courts in such<span class="pagenum"><a name="Page_76" id="Page_76">76</a></span>
+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.</p>
+
+<div class="sidenote">Villains not to be devised.</div>
+
+<p>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<a name="FNanchor_102_102" id="FNanchor_102_102"></a><a href="#Footnote_102_102" class="fnanchor">[102]</a>.' 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<a name="FNanchor_103_103" id="FNanchor_103_103"></a><a href="#Footnote_103_103" class="fnanchor">[103]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_77" id="Page_77">77</a></span></p><div class="sidenote">Villain tenure and villain service.</div>
+
+<p>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<a name="FNanchor_104_104" id="FNanchor_104_104"></a><a href="#Footnote_104_104" class="fnanchor">[104]</a>. The villain is a man belonging to his lord personally;
+a villain holding (<i>villenagium</i>) 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<a name="FNanchor_105_105" id="FNanchor_105_105"></a><a href="#Footnote_105_105" class="fnanchor">[105]</a>. 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 <i>villenagium</i>;
+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<span class="pagenum"><a name="Page_78" id="Page_78">78</a></span>
+plot he is using are free, and the tenure may be defended
+at law<a name="FNanchor_106_106" id="FNanchor_106_106"></a><a href="#Footnote_106_106" class="fnanchor">[106]</a>.</p>
+
+<p>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.</p>
+
+<div class="sidenote">Martin of Bestenover's case.</div>
+
+<p>Martin of Bestenover's case is used by Bracton in his
+treatise as illustrating the view that tenure has no influence
+on status<a name="FNanchor_107_107" id="FNanchor_107_107"></a><a href="#Footnote_107_107" class="fnanchor">[107]</a>. 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<a name="FNanchor_108_108" id="FNanchor_108_108"></a><a href="#Footnote_108_108" class="fnanchor">[108]</a>. 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<a name="FNanchor_109_109" id="FNanchor_109_109"></a><a href="#Footnote_109_109" class="fnanchor">[109]</a>. 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<i>s.</i> 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.<span class="pagenum"><a name="Page_79" id="Page_79">79</a></span>
+Proceedings break out again at the beginning of Henry
+III's reign.</p>
+
+<p>In 1219 John of Montacute is again maintaining that
+Martin is his villain, in answer as it seems to an action <i>de
+libertate probanda</i> 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<a name="FNanchor_110_110" id="FNanchor_110_110"></a><a href="#Footnote_110_110" class="fnanchor">[110]</a> 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<a name="FNanchor_111_111" id="FNanchor_111_111"></a><a href="#Footnote_111_111" class="fnanchor">[111]</a>.' 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<a name="FNanchor_112_112" id="FNanchor_112_112"></a><a href="#Footnote_112_112" class="fnanchor">[112]</a>.<span class="pagenum"><a name="Page_80" id="Page_80">80</a></span>
+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.</p>
+
+<div class="sidenote">Tenant right of free man holding in villainage.</div>
+
+<p>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&mdash;non-performance
+of services<a name="FNanchor_113_113" id="FNanchor_113_113"></a><a href="#Footnote_113_113" class="fnanchor">[113]</a>. There can be no
+question as to the importance of such a view; it contains, as
+it were, the germ of copyhold tenure<a name="FNanchor_114_114" id="FNanchor_114_114"></a><a href="#Footnote_114_114" class="fnanchor">[114]</a>. 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<a name="FNanchor_115_115" id="FNanchor_115_115"></a><a href="#Footnote_115_115" class="fnanchor">[115]</a>. 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<a name="FNanchor_116_116" id="FNanchor_116_116"></a><a href="#Footnote_116_116" class="fnanchor">[116]</a>. Undoubtedly the decision before<span class="pagenum"><a name="Page_81" id="Page_81">81</a></span>
+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 <i>v.</i> Montacute, and
+the case decided by Raleigh<a name="FNanchor_117_117" id="FNanchor_117_117"></a><a href="#Footnote_117_117" class="fnanchor">[117]</a>. 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.</p>
+
+<div class="sidenote">The test of services.</div>
+
+<p>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<span class="pagenum"><a name="Page_82" id="Page_82">82</a></span>
+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<a name="FNanchor_118_118" id="FNanchor_118_118"></a><a href="#Footnote_118_118" class="fnanchor">[118]</a>,
+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<a name="FNanchor_119_119" id="FNanchor_119_119"></a><a href="#Footnote_119_119" class="fnanchor">[119]</a>, 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.</p>
+
+<p>All this was held to be servile and characteristic of
+villainage<a name="FNanchor_120_120" id="FNanchor_120_120"></a><a href="#Footnote_120_120" class="fnanchor">[120]</a>. 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<span class="pagenum"><a name="Page_83" id="Page_83">83</a></span>
+of Ripley <i>v.</i> 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<a name="FNanchor_121_121" id="FNanchor_121_121"></a><a href="#Footnote_121_121" class="fnanchor">[121]</a>.</p>
+
+<p>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.</p>
+
+<div class="sidenote">The procedure in questions of <i>status</i>.</div>
+
+<p>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&mdash;absolute
+proof that the kinsfolk of the person claimed were
+villains by descent<a name="FNanchor_122_122" id="FNanchor_122_122"></a><a href="#Footnote_122_122" class="fnanchor">[122]</a>. The verdict of a jury was not
+sufficient to settle the question<a name="FNanchor_123_123" id="FNanchor_123_123"></a><a href="#Footnote_123_123" class="fnanchor">[123]</a>, and a man who had been
+refused an assize in consequence of the defendant pleading<span class="pagenum"><a name="Page_84" id="Page_84">84</a></span>
+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<a name="FNanchor_124_124" id="FNanchor_124_124"></a><a href="#Footnote_124_124" class="fnanchor">[124]</a>. 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<a name="FNanchor_125_125" id="FNanchor_125_125"></a><a href="#Footnote_125_125" class="fnanchor">[125]</a>. 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.</p>
+
+<p>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<a name="FNanchor_126_126" id="FNanchor_126_126"></a><a href="#Footnote_126_126" class="fnanchor">[126]</a>.' 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<a name="FNanchor_127_127" id="FNanchor_127_127"></a><a href="#Footnote_127_127" class="fnanchor">[127]</a>.
+When villainage was pleaded in bar against a person out
+of the power of the lord, the special question was very<span class="pagenum"><a name="Page_85" id="Page_85">85</a></span>
+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<a name="FNanchor_128_128" id="FNanchor_128_128"></a><a href="#Footnote_128_128" class="fnanchor">[128]</a>. 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<a name="FNanchor_129_129" id="FNanchor_129_129"></a><a href="#Footnote_129_129" class="fnanchor">[129]</a>.</p>
+
+<p>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<a name="FNanchor_130_130" id="FNanchor_130_130"></a><a href="#Footnote_130_130" class="fnanchor">[130]</a>. 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 <i>A</i> 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 <i>B</i> or within the privileged<span class="pagenum"><a name="Page_86" id="Page_86">86</a></span>
+town <i>C</i>. 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<a name="FNanchor_131_131" id="FNanchor_131_131"></a><a href="#Footnote_131_131" class="fnanchor">[131]</a>. 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.</p>
+
+<div class="sidenote">Enfranchisement.</div>
+
+<p>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<a name="FNanchor_132_132" id="FNanchor_132_132"></a><a href="#Footnote_132_132" class="fnanchor">[132]</a>.
+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,<span class="pagenum"><a name="Page_87" id="Page_87">87</a></span>
+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 <i>de
+facto</i> 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<a name="FNanchor_133_133" id="FNanchor_133_133"></a><a href="#Footnote_133_133" class="fnanchor">[133]</a>. 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<a name="FNanchor_134_134" id="FNanchor_134_134"></a><a href="#Footnote_134_134" class="fnanchor">[134]</a>, but
+the practice of selling them for manumission to a stranger
+is mentioned both in Bracton's Treatise<a name="FNanchor_135_135" id="FNanchor_135_135"></a><a href="#Footnote_135_135" class="fnanchor">[135]</a> and in his Notebook.<span class="pagenum"><a name="Page_88" id="Page_88">88</a></span>
+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<a name="FNanchor_136_136" id="FNanchor_136_136"></a><a href="#Footnote_136_136" class="fnanchor">[136]</a>. 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&mdash;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.</p>
+
+<hr class="chap" /><p><span class="pagenum"><a name="Page_89" id="Page_89">89</a></span></p>
+
+
+<h2><a name="CHAPTER_1_III" id="CHAPTER_1_III"></a>CHAPTER III.</h2>
+
+<p class="center">ANCIENT DEMESNE.</p>
+
+
+<div class="sidenote">Definition.</div>
+
+<p>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<a name="FNanchor_137_137" id="FNanchor_137_137"></a><a href="#Footnote_137_137" class="fnanchor">[137]</a>. 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.</p>
+
+<p>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<a name="FNanchor_138_138" id="FNanchor_138_138"></a><a href="#Footnote_138_138" class="fnanchor">[138]</a>. This includes manors which had been given
+away subsequently, and excludes such as had lapsed to the<span class="pagenum"><a name="Page_90" id="Page_90">90</a></span>
+king after the Conquest by escheat or forfeiture<a name="FNanchor_139_139" id="FNanchor_139_139"></a><a href="#Footnote_139_139" class="fnanchor">[139]</a>. Possessions
+granted away by Saxon kings before the Conquest
+are equally excluded<a name="FNanchor_140_140" id="FNanchor_140_140"></a><a href="#Footnote_140_140" class="fnanchor">[140]</a>. In order to ascertain what these
+manors were the courts reverted to the Domesday description
+of <i>Terra Regis</i>. 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<a name="FNanchor_141_141" id="FNanchor_141_141"></a><a href="#Footnote_141_141" class="fnanchor">[141]</a>. And so 1066 and not 1086 is the
+decisive year for the legal formation of this class of manors<a name="FNanchor_142_142" id="FNanchor_142_142"></a><a href="#Footnote_142_142" class="fnanchor">[142]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_91" id="Page_91">91</a></span></p><div class="sidenote">Tenure in ancient demesne a kind of villainage.</div>
+
+<p>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<a name="FNanchor_143_143" id="FNanchor_143_143"></a><a href="#Footnote_143_143" class="fnanchor">[143]</a>; 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<a name="FNanchor_144_144" id="FNanchor_144_144"></a><a href="#Footnote_144_144" class="fnanchor">[144]</a>. We often come across such base customs
+as the payment of merchet in connexion with the 'villain
+socmen' of ancient demesne<a name="FNanchor_145_145" id="FNanchor_145_145"></a><a href="#Footnote_145_145" class="fnanchor">[145]</a>. 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.</p>
+
+<div class="sidenote">Privileges of ancient demesne.</div>
+
+<p>The side of privilege is not less conspicuous. The indications
+given by the law books must be largely supplemented<span class="pagenum"><a name="Page_92" id="Page_92">92</a></span>
+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<a name="FNanchor_146_146" id="FNanchor_146_146"></a><a href="#Footnote_146_146" class="fnanchor">[146]</a>, they
+are not assessed with the rest for danegeld or common
+amercements or the murder fine<a name="FNanchor_147_147" id="FNanchor_147_147"></a><a href="#Footnote_147_147" class="fnanchor">[147]</a>, they are exempted from
+the jurisdiction of the sheriff<a name="FNanchor_148_148" id="FNanchor_148_148"></a><a href="#Footnote_148_148" class="fnanchor">[148]</a>, and do not serve on juries
+and assizes before the king's justices<a name="FNanchor_149_149" id="FNanchor_149_149"></a><a href="#Footnote_149_149" class="fnanchor">[149]</a>; they are free from
+toll in all markets and custom-houses<a name="FNanchor_150_150" id="FNanchor_150_150"></a><a href="#Footnote_150_150" class="fnanchor">[150]</a>. 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<a name="FNanchor_151_151" id="FNanchor_151_151"></a><a href="#Footnote_151_151" class="fnanchor">[151]</a>. 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<span class="pagenum"><a name="Page_93" id="Page_93">93</a></span>
+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<a name="FNanchor_152_152" id="FNanchor_152_152"></a><a href="#Footnote_152_152" class="fnanchor">[152]</a>. 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:&mdash;the
+person living on land of this description could not be taxed
+with the county<a name="FNanchor_153_153" id="FNanchor_153_153"></a><a href="#Footnote_153_153" class="fnanchor">[153]</a>, 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<a name="FNanchor_154_154" id="FNanchor_154_154"></a><a href="#Footnote_154_154" class="fnanchor">[154]</a>. 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<span class="pagenum"><a name="Page_94" id="Page_94">94</a></span>
+not want his land and his men to be subjected to any
+vexatious burdens which would lessen their power of
+yielding income<a name="FNanchor_155_155" id="FNanchor_155_155"></a><a href="#Footnote_155_155" class="fnanchor">[155]</a>. 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.</p>
+
+<div class="sidenote">Parvum breve de recto.</div>
+
+<p>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<a name="FNanchor_156_156" id="FNanchor_156_156"></a><a href="#Footnote_156_156" class="fnanchor">[156]</a>.</p>
+
+<p>It does not concern freehold estate, but only land of base
+though privileged tenure. An action for freehold also may<span class="pagenum"><a name="Page_95" id="Page_95">95</a></span>
+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<a name="FNanchor_157_157" id="FNanchor_157_157"></a><a href="#Footnote_157_157" class="fnanchor">[157]</a>.'</p>
+
+<p>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<a name="FNanchor_158_158" id="FNanchor_158_158"></a><a href="#Footnote_158_158" class="fnanchor">[158]</a>. 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<a name="FNanchor_159_159" id="FNanchor_159_159"></a><a href="#Footnote_159_159" class="fnanchor">[159]</a> in land to ancient
+demesne, peculiarities which, however, are not universally
+found<a name="FNanchor_160_160" id="FNanchor_160_160"></a><a href="#Footnote_160_160" class="fnanchor">[160]</a>, 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<span class="pagenum"><a name="Page_96" id="Page_96">96</a></span>
+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.</p>
+
+<p>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<a name="FNanchor_161_161" id="FNanchor_161_161"></a><a href="#Footnote_161_161" class="fnanchor">[161]</a>. Surely this could
+happen only because the tenure in ancient demesne,
+although a kind of villainage, closely resembled freehold.</p>
+
+<div class="sidenote">The 'little writ' in manors alienated from the Crown.</div>
+
+<p>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<a name="FNanchor_162_162" id="FNanchor_162_162"></a><a href="#Footnote_162_162" class="fnanchor">[162]</a>, and when a socman was opposed
+to his lord as a plaintiff<a name="FNanchor_163_163" id="FNanchor_163_163"></a><a href="#Footnote_163_163" class="fnanchor">[163]</a>. 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<span class="pagenum"><a name="Page_97" id="Page_97">97</a></span>
+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<a name="FNanchor_164_164" id="FNanchor_164_164"></a><a href="#Footnote_164_164" class="fnanchor">[164]</a>.</p>
+
+<p>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<a name="FNanchor_165_165" id="FNanchor_165_165"></a><a href="#Footnote_165_165" class="fnanchor">[165]</a>. 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<span class="pagenum"><a name="Page_98" id="Page_98">98</a></span>
+exception, that it applies quite as much to those which remain
+in the crown as to those which have been alienated
+from it<a name="FNanchor_166_166" id="FNanchor_166_166"></a><a href="#Footnote_166_166" class="fnanchor">[166]</a>. 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<a name="FNanchor_167_167" id="FNanchor_167_167"></a><a href="#Footnote_167_167" class="fnanchor">[167]</a>.</p>
+
+<p>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<a name="FNanchor_168_168" id="FNanchor_168_168"></a><a href="#Footnote_168_168" class="fnanchor">[168]</a> 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<a name="FNanchor_169_169" id="FNanchor_169_169"></a><a href="#Footnote_169_169" class="fnanchor">[169]</a>.</p>
+
+<div class="sidenote">Procedure of revision.</div>
+
+<p>Actions as to personal estate could be pleaded without<span class="pagenum"><a name="Page_99" id="Page_99">99</a></span>
+writ, and as for the crown pleas they were reserved to the
+high courts<a name="FNanchor_170_170" id="FNanchor_170_170"></a><a href="#Footnote_170_170" class="fnanchor">[170]</a>. But even in actions regarding the soil a
+removal to these latter was not excluded<a name="FNanchor_171_171" id="FNanchor_171_171"></a><a href="#Footnote_171_171" class="fnanchor">[171]</a>. Evocation
+to a higher court followed naturally if the manorial
+court refused justice and such removal made the land
+frank fee<a name="FNanchor_172_172" id="FNanchor_172_172"></a><a href="#Footnote_172_172" class="fnanchor">[172]</a>. 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<a name="FNanchor_173_173" id="FNanchor_173_173"></a><a href="#Footnote_173_173" class="fnanchor">[173]</a>. Instances of examination
+and revision are frequent in our records<a name="FNanchor_174_174" id="FNanchor_174_174"></a><a href="#Footnote_174_174" class="fnanchor">[174]</a>. 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<a name="FNanchor_175_175" id="FNanchor_175_175"></a><a href="#Footnote_175_175" class="fnanchor">[175]</a>; they
+allowed a great latitude for the peculiarities of customary<span class="pagenum"><a name="Page_100" id="Page_100">100</a></span>
+law; but the difficulty was that a line had to be drawn somewhere<a name="FNanchor_176_176" id="FNanchor_176_176"></a><a href="#Footnote_176_176" class="fnanchor">[176]</a>.
+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<a name="FNanchor_177_177" id="FNanchor_177_177"></a><a href="#Footnote_177_177" class="fnanchor">[177]</a>. 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 <i>parvum breve</i><a name="FNanchor_178_178" id="FNanchor_178_178"></a><a href="#Footnote_178_178" class="fnanchor">[178]</a>. It is not
+without interest to notice in this connexion that the <i>parvum
+breve</i> 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<a name="FNanchor_179_179" id="FNanchor_179_179"></a><a href="#Footnote_179_179" class="fnanchor">[179]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_101" id="Page_101">101</a></span></p><div class="sidenote">Breve de 'Monstraverunt'.</div>
+
+<p>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,'<a name="FNanchor_180_180" id="FNanchor_180_180"></a><a href="#Footnote_180_180" class="fnanchor">[180]</a> 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<a name="FNanchor_181_181" id="FNanchor_181_181"></a><a href="#Footnote_181_181" class="fnanchor">[181]</a>.
+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<a name="FNanchor_182_182" id="FNanchor_182_182"></a><a href="#Footnote_182_182" class="fnanchor">[182]</a>.
+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<a name="FNanchor_183_183" id="FNanchor_183_183"></a><a href="#Footnote_183_183" class="fnanchor">[183]</a>. These
+exceptional features were evidently meant to facilitate the
+action of humble people against a powerful magnate<a name="FNanchor_184_184" id="FNanchor_184_184"></a><a href="#Footnote_184_184" class="fnanchor">[184]</a>. But
+it seems to me that the deviation from the rules governing<span class="pagenum"><a name="Page_102" id="Page_102">102</a></span>
+writs at common law is to be explained not only by the
+general aim of the writ, but also by its origin.</p>
+
+<div class="sidenote">Petition.</div>
+
+<p>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; <i>monstravit</i> or
+<i>monstraverunt N.N.</i>; <i>ex parte N.N. ostensum est</i>:&mdash;these
+are the opening words of the king's injunctions consequent
+upon the humble remonstrations of his aggrieved subjects<a name="FNanchor_185_185" id="FNanchor_185_185"></a><a href="#Footnote_185_185" class="fnanchor">[185]</a>.
+Again, we find that the application for the writ by privileged
+villains is actually described as a plaint<a name="FNanchor_186_186" id="FNanchor_186_186"></a><a href="#Footnote_186_186" class="fnanchor">[186]</a>. In some cases it
+would be difficult to tell on the face of the initiatory document,
+whether we have to do with a '<i>breve de monstraverunt</i>'
+to coerce the manorial lord, or with an extraordinary
+measure taken by the king with a view to settling his own
+interests<a name="FNanchor_187_187" id="FNanchor_187_187"></a><a href="#Footnote_187_187" class="fnanchor">[187]</a>.</p>
+
+<div class="sidenote">The 'Monstraverunt' on the king's own land.</div>
+
+<p>And this brings me to the main point. Although the
+writ under discussion seems at first sight to meet the<span class="pagenum"><a name="Page_103" id="Page_103">103</a></span>
+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.'<a name="FNanchor_188_188" id="FNanchor_188_188"></a><a href="#Footnote_188_188" class="fnanchor">[188]</a> 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<span class="pagenum"><a name="Page_104" id="Page_104">104</a></span>
+high and low<a name="FNanchor_189_189" id="FNanchor_189_189"></a><a href="#Footnote_189_189" class="fnanchor">[189]</a>. 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.</p>
+
+<p>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<a name="FNanchor_190_190" id="FNanchor_190_190"></a><a href="#Footnote_190_190" class="fnanchor">[190]</a>.</p>
+
+<p>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.<span class="pagenum"><a name="Page_105" id="Page_105">105</a></span>
+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<a name="FNanchor_191_191" id="FNanchor_191_191"></a><a href="#Footnote_191_191" class="fnanchor">[191]</a>, 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.</p>
+
+<div class="sidenote">Alienation of Royal Manors.</div>
+
+<p>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<a name="FNanchor_192_192" id="FNanchor_192_192"></a><a href="#Footnote_192_192" class="fnanchor">[192]</a>. In order to<span class="pagenum"><a name="Page_106" id="Page_106">106</a></span>
+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<a name="FNanchor_193_193" id="FNanchor_193_193"></a><a href="#Footnote_193_193" class="fnanchor">[193]</a>.
+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<a name="FNanchor_194_194" id="FNanchor_194_194"></a><a href="#Footnote_194_194" class="fnanchor">[194]</a>, and his bailiff continued
+to exercise functions by the side of, and in conjunction
+with, the officers of the Abbot<a name="FNanchor_195_195" id="FNanchor_195_195"></a><a href="#Footnote_195_195" class="fnanchor">[195]</a>. In the 50th year
+of Henry III a remarkable case occurred:&mdash;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<a name="FNanchor_196_196" id="FNanchor_196_196"></a><a href="#Footnote_196_196" class="fnanchor">[196]</a>. 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<a name="FNanchor_197_197" id="FNanchor_197_197"></a><a href="#Footnote_197_197" class="fnanchor">[197]</a>.</p>
+
+<p>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<span class="pagenum"><a name="Page_107" id="Page_107">107</a></span>
+the bailiffs of the Abbot<a name="FNanchor_198_198" id="FNanchor_198_198"></a><a href="#Footnote_198_198" class="fnanchor">[198]</a>. The royal writs again are
+directed not to the Abbot, but to his bailiff. The same was
+the case at Stoneleigh<a name="FNanchor_199_199" id="FNanchor_199_199"></a><a href="#Footnote_199_199" class="fnanchor">[199]</a>, and indeed this seems to have been
+the regular course on ancient demesne manors<a name="FNanchor_200_200" id="FNanchor_200_200"></a><a href="#Footnote_200_200" class="fnanchor">[200]</a>. 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.</p>
+
+<p>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<a name="FNanchor_201_201" id="FNanchor_201_201"></a><a href="#Footnote_201_201" class="fnanchor">[201]</a>. 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:&mdash;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<a name="FNanchor_202_202" id="FNanchor_202_202"></a><a href="#Footnote_202_202" class="fnanchor">[202]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_108" id="Page_108">108</a></span></p><div class="sidenote">Services certain on Royal Manors.</div>
+
+<p>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<a name="FNanchor_203_203" id="FNanchor_203_203"></a><a href="#Footnote_203_203" class="fnanchor">[203]</a>. 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<a name="FNanchor_204_204" id="FNanchor_204_204"></a><a href="#Footnote_204_204" class="fnanchor">[204]</a>. The notion from
+which all inquiry consequent upon a 'Monstraverunt'
+starts is always this, that the tenants were holding by <i>certain</i>
+(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<span class="pagenum"><a name="Page_109" id="Page_109">109</a></span>
+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<a name="FNanchor_205_205" id="FNanchor_205_205"></a><a href="#Footnote_205_205" class="fnanchor">[205]</a>; 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 (<i>incrementum</i>) levied in addition to the old 'ferm'
+(<i>assisa</i>; <i>redditus antiquitus assisus</i>), can be easily reconciled
+with this doctrine<a name="FNanchor_206_206" id="FNanchor_206_206"></a><a href="#Footnote_206_206" class="fnanchor">[206]</a>. 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<a name="FNanchor_207_207" id="FNanchor_207_207"></a><a href="#Footnote_207_207" class="fnanchor">[207]</a>.</p>
+
+<div class="sidenote">Trial of services in 'Monstraverunt'.</div>
+
+<p>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<span class="pagenum"><a name="Page_110" id="Page_110">110</a></span>
+for this purpose nothing short of a direct mention in
+Domesday was held to be sufficient<a name="FNanchor_208_208" id="FNanchor_208_208"></a><a href="#Footnote_208_208" class="fnanchor">[208]</a>. 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<a name="FNanchor_209_209" id="FNanchor_209_209"></a><a href="#Footnote_209_209" class="fnanchor">[209]</a>,
+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<a name="FNanchor_210_210" id="FNanchor_210_210"></a><a href="#Footnote_210_210" class="fnanchor">[210]</a>.<span class="pagenum"><a name="Page_111" id="Page_111">111</a></span>
+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<a name="FNanchor_211_211" id="FNanchor_211_211"></a><a href="#Footnote_211_211" class="fnanchor">[211]</a>. Metingham demanded
+that the claimants should make good their
+contention even for a single day in Richard C&#339;ur de
+Lion's time<a name="FNanchor_212_212" id="FNanchor_212_212"></a><a href="#Footnote_212_212" class="fnanchor">[212]</a>. 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<a name="FNanchor_213_213" id="FNanchor_213_213"></a><a href="#Footnote_213_213" class="fnanchor">[213]</a>.</p>
+
+<div class="sidenote">Nature of tenancy in ancient demesne.</div>
+
+<p>Now all that has been said hitherto applied to 'the tenants<span class="pagenum"><a name="Page_112" id="Page_112">112</a></span>
+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<a name="FNanchor_214_214" id="FNanchor_214_214"></a><a href="#Footnote_214_214" class="fnanchor">[214]</a>. 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.</p>
+
+<p>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<a name="FNanchor_215_215" id="FNanchor_215_215"></a><a href="#Footnote_215_215" class="fnanchor">[215]</a>.' 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<a name="FNanchor_216_216" id="FNanchor_216_216"></a><a href="#Footnote_216_216" class="fnanchor">[216]</a>;
+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<a name="FNanchor_217_217" id="FNanchor_217_217"></a><a href="#Footnote_217_217" class="fnanchor">[217]</a>. And<span class="pagenum"><a name="Page_113" id="Page_113">113</a></span>
+to take up the special point mentioned by Mr. Elton&mdash;conveyance
+by surrender and admittance is a quite necessary
+feature of the tenure<a name="FNanchor_218_218" id="FNanchor_218_218"></a><a href="#Footnote_218_218" class="fnanchor">[218]</a>: conveyance by charter makes
+the land freehold and destroys its ancient demesne condition<a name="FNanchor_219_219" id="FNanchor_219_219"></a><a href="#Footnote_219_219" class="fnanchor">[219]</a>.
+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.</p>
+
+<div class="sidenote">Classes of tenantry.</div>
+
+<p>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<a name="FNanchor_220_220" id="FNanchor_220_220"></a><a href="#Footnote_220_220" class="fnanchor">[220]</a>. 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<a name="FNanchor_221_221" id="FNanchor_221_221"></a><a href="#Footnote_221_221" class="fnanchor">[221]</a>. On the other hand,<span class="pagenum"><a name="Page_114" id="Page_114">114</a></span>
+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<a name="FNanchor_222_222" id="FNanchor_222_222"></a><a href="#Footnote_222_222" class="fnanchor">[222]</a>. 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<a name="FNanchor_223_223" id="FNanchor_223_223"></a><a href="#Footnote_223_223" class="fnanchor">[223]</a>. 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<a name="FNanchor_224_224" id="FNanchor_224_224"></a><a href="#Footnote_224_224" class="fnanchor">[224]</a>. It is of<span class="pagenum"><a name="Page_115" id="Page_115">115</a></span>
+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<a name="FNanchor_225_225" id="FNanchor_225_225"></a><a href="#Footnote_225_225" class="fnanchor">[225]</a>. 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<a name="FNanchor_226_226" id="FNanchor_226_226"></a><a href="#Footnote_226_226" class="fnanchor">[226]</a>. 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<span class="pagenum"><a name="Page_116" id="Page_116">116</a></span>
+make distinctions. It speaks of three species of socage&mdash;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<a name="FNanchor_227_227" id="FNanchor_227_227"></a><a href="#Footnote_227_227" class="fnanchor">[227]</a>. 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.</p>
+
+<div class="sidenote">Villain socage.</div>
+
+<p>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&mdash;free, villains, and socmen<a name="FNanchor_228_228" id="FNanchor_228_228"></a><a href="#Footnote_228_228" class="fnanchor">[228]</a>. In order to
+be quite accurate people spoke of <i>villain socmen</i> or <i>little
+socage</i><a name="FNanchor_229_229" id="FNanchor_229_229"></a><a href="#Footnote_229_229" class="fnanchor">[229]</a> 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<a name="FNanchor_230_230" id="FNanchor_230_230"></a><a href="#Footnote_230_230" class="fnanchor">[230]</a>.
+But still the fundamental notion of free men holding<span class="pagenum"><a name="Page_117" id="Page_117">117</a></span>
+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<a name="FNanchor_231_231" id="FNanchor_231_231"></a><a href="#Footnote_231_231" class="fnanchor">[231]</a>.
+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<a name="FNanchor_232_232" id="FNanchor_232_232"></a><a href="#Footnote_232_232" class="fnanchor">[232]</a>. 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<a name="FNanchor_233_233" id="FNanchor_233_233"></a><a href="#Footnote_233_233" class="fnanchor">[233]</a>. This was done primarily in
+the interests of the lord, but the tenantry also seem to have<span class="pagenum"><a name="Page_118" id="Page_118">118</a></span>
+sometimes been jealous of their prerogatives<a name="FNanchor_234_234" id="FNanchor_234_234"></a><a href="#Footnote_234_234" class="fnanchor">[234]</a>, and it is only
+in the course of the fourteenth century that they begin to
+open their gates to strangers, 'adventicii<a name="FNanchor_235_235" id="FNanchor_235_235"></a><a href="#Footnote_235_235" class="fnanchor">[235]</a>.' 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_119" id="Page_119">119</a></span>
+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<a name="FNanchor_236_236" id="FNanchor_236_236"></a><a href="#Footnote_236_236" class="fnanchor">[236]</a>. 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<span class="pagenum"><a name="Page_120" id="Page_120">120</a></span>
+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<a name="FNanchor_237_237" id="FNanchor_237_237"></a><a href="#Footnote_237_237" class="fnanchor">[237]</a>.' 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.</p>
+
+<p>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&mdash;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<span class="pagenum"><a name="Page_121" id="Page_121">121</a></span>
+the fact that they were always capable of leaving their tenements
+and going away at pleasure.</p>
+
+<div class="sidenote">Bracton's historical explanation.</div>
+
+<p>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<a name="FNanchor_238_238" id="FNanchor_238_238"></a><a href="#Footnote_238_238" class="fnanchor">[238]</a>.'</p>
+
+<p>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<span class="pagenum"><a name="Page_122" id="Page_122">122</a></span>
+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<a name="FNanchor_239_239" id="FNanchor_239_239"></a><a href="#Footnote_239_239" class="fnanchor">[239]</a>. 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 <i>de facto</i>, 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.</p>
+
+<div class="sidenote">Saxon origin of ancient demesne tenure.</div>
+
+<p>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<span class="pagenum"><a name="Page_123" id="Page_123">123</a></span>
+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<a name="FNanchor_240_240" id="FNanchor_240_240"></a><a href="#Footnote_240_240" class="fnanchor">[240]</a>; the
+tenants, whenever they want to make a solemn claim, set
+forth their rights from the time of St. Edward<a name="FNanchor_241_241" id="FNanchor_241_241"></a><a href="#Footnote_241_241" class="fnanchor">[241]</a>, or even
+Cnut<a name="FNanchor_242_242" id="FNanchor_242_242"></a><a href="#Footnote_242_242" class="fnanchor">[242]</a>. 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<a name="FNanchor_243_243" id="FNanchor_243_243"></a><a href="#Footnote_243_243" class="fnanchor">[243]</a>, which may be described in few words&mdash;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<span class="pagenum"><a name="Page_124" id="Page_124">124</a></span>
+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<a name="FNanchor_244_244" id="FNanchor_244_244"></a><a href="#Footnote_244_244" class="fnanchor">[244]</a>.</p>
+
+<p>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<span class="pagenum"><a name="Page_125" id="Page_125">125</a></span>
+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?</p>
+
+<p>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.</p><p><span class="pagenum"><a name="Page_126" id="Page_126">126</a></span></p>
+
+<p>I may be allowed to sum up the conclusions of this
+chapter under the following heads:&mdash;</p>
+
+<p>1. The law of ancient demesne is primarily developed in
+regard to the manors in the king's own hand.</p>
+
+<p>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.</p>
+
+<p>3. This certainty of condition is derived from the Conquest
+as the connecting link between the Norman and the
+Saxon periods.</p>
+<hr class="chap" /><p><span class="pagenum"><a name="Page_127" id="Page_127">127</a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_1_IV" id="CHAPTER_1_IV"></a>CHAPTER IV.</h2>
+
+<p class="center">LEGAL ASPECT OF VILLAINAGE. CONCLUSIONS.</p>
+
+
+<div class="sidenote">Method of investigation.</div>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_128" id="Page_128">128</a></span>
+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.</p>
+
+<div class="sidenote">Uncertainty and contradictions of legal theory.</div>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_129" id="Page_129">129</a></span>
+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 <i>colonatus</i> or ascription.
+It contains elements from each of these three conditions,
+and it must be explained historically.</p>
+
+<div class="sidenote">Influence of lawyers.</div>
+
+<p>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<span class="pagenum"><a name="Page_130" id="Page_130">130</a></span>
+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.</p>
+
+<div class="sidenote">Roman law, Norman law, and royal jurisdiction.</div>
+
+<p>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<a name="FNanchor_245_245" id="FNanchor_245_245"></a><a href="#Footnote_245_245" class="fnanchor">[245]</a>; 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.</p>
+
+<div class="sidenote">Social bias of legal theories.</div>
+
+<p>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<span class="pagenum"><a name="Page_131" id="Page_131">131</a></span>
+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 <i>crescendo</i>, 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.</p>
+
+<div class="sidenote">Influence of conquest.</div>
+
+<p>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<a name="FNanchor_246_246" id="FNanchor_246_246"></a><a href="#Footnote_246_246" class="fnanchor">[246]</a>,
+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<span class="pagenum"><a name="Page_132" id="Page_132">132</a></span>
+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 <i>roturier</i>
+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 <i>liberi et legales homines</i> with
+every kind of privilege. The national colouring given
+by the <i>Dialogus de Scaccario</i> to the social question
+of the time is not without meaning in this light:&mdash;the
+peasants may be regarded as the remnant of a conquered
+race, or as the issue of rebels who have forfeited their
+rights.</p>
+
+<div class="sidenote">English feudalism.</div>
+
+<p>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 <i>status</i>, 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<span class="pagenum"><a name="Page_133" id="Page_133">133</a></span>
+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.</p>
+
+<div class="sidenote">Survivals of pre-feudal condition.</div>
+
+<p>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<span class="pagenum"><a name="Page_134" id="Page_134">134</a></span>
+of a master to put a slave by a mere act of his will
+on the same level with free men.</p>
+
+<div class="sidenote">Elements of freedom.</div>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>Another difficulty arises from the fact that the law of
+this period was fashioned by kings of French origin and<span class="pagenum"><a name="Page_135" id="Page_135">135</a></span>
+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<a name="FNanchor_247_247" id="FNanchor_247_247"></a><a href="#Footnote_247_247" class="fnanchor">[247]</a>, is an insertion of the Norman period,
+although the great majority of these Laws are Saxon gleanings.
+It is likely that the notion of <i>wainage</i> 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 <i>Dialogus de Scaccario</i> 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.</p>
+
+<div class="sidenote">Ancient demesne.</div>
+
+<p>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<span class="pagenum"><a name="Page_136" id="Page_136">136</a></span>
+Saxon <i>soc</i> and <i>tun</i> 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 <i>the</i> 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&mdash;ancient demesne is traced back to
+Saxon times in as many words and by all our authorities.</p>
+
+<div class="sidenote">Clues as to the condition of Saxon peasantry.</div>
+
+<p>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.</p><p><span class="pagenum"><a name="Page_137" id="Page_137">137</a></span></p>
+
+<p>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.</p>
+
+<p>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 <i>colonatus</i>; there
+is a stock of freedom in it which speaks of Saxon tradition.</p>
+
+<hr class="chap" /><p><span class="pagenum"><a name="Page_138" id="Page_138">138</a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_1_V" id="CHAPTER_1_V"></a>CHAPTER V.</h2>
+
+<p class="center">THE SERVILE PEASANTRY OF MANORIAL RECORDS.</p>
+
+
+<div class="sidenote">Manorial documents.</div>
+
+<p>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<a name="FNanchor_248_248" id="FNanchor_248_248"></a><a href="#Footnote_248_248" class="fnanchor">[248]</a>. 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;<span class="pagenum"><a name="Page_139" id="Page_139">139</a></span>
+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<a name="FNanchor_249_249" id="FNanchor_249_249"></a><a href="#Footnote_249_249" class="fnanchor">[249]</a>. In Herefordshire the
+master was not bound to produce his serfs to answer
+criminal charges<a name="FNanchor_250_250" id="FNanchor_250_250"></a><a href="#Footnote_250_250" class="fnanchor">[250]</a>. 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.</p>
+
+<p><span class="pagenum"><a name="Page_140" id="Page_140">140</a></span></p><div class="sidenote">Terminological classification.</div>
+
+<p>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.</p>
+
+<div class="sidenote">Terms to indicate social standing.</div>
+
+<p>The term of most common occurrence is, of course,
+<i>villanus</i>. 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 <i>villanus</i> and <i>libere tenens</i>,
+not between <i>villanus</i> and <i>liber homo</i>. 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 <i>villanus</i>, that is
+to say, it is contrasted with <i>libere tenens</i><a name="FNanchor_251_251" id="FNanchor_251_251"></a><a href="#Footnote_251_251" class="fnanchor">[251]</a>.</p>
+<p><span class="pagenum"><a name="Page_141" id="Page_141">141</a></span></p>
+<div class="sidenote">Villains personally unfree.</div>
+
+<p>The fundamental distinction of personal status has left
+some traces in terminology. The Hundred Rolls,
+especially the Warwickshire one<a name="FNanchor_252_252" id="FNanchor_252_252"></a><a href="#Footnote_252_252" class="fnanchor">[252]</a>, mention <i>servi</i> very often.
+Sometimes the word is used exactly as <i>villanus</i> would be<a name="FNanchor_253_253" id="FNanchor_253_253"></a><a href="#Footnote_253_253" class="fnanchor">[253]</a>.
+<i>Tenere in servitute</i> and <i>tenere in villenagio</i> are equivalent<a name="FNanchor_254_254" id="FNanchor_254_254"></a><a href="#Footnote_254_254" class="fnanchor">[254]</a>.
+But other instances show that <i>servus</i> has also a special
+meaning. Cases where it occurs in an 'extent' immediately
+after <i>villanus</i>, and possibly in opposition to it, are
+not decisive<a name="FNanchor_255_255" id="FNanchor_255_255"></a><a href="#Footnote_255_255" class="fnanchor">[255]</a>. 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 <i>servi</i> would
+not be necessarily opposed to a <i>villani</i> 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: <i>item
+dictus R. de N. habet de proparte sua septem servos villanos</i>.
+(Rot. Hundr. ii. 781, b: cf. 775, b, <i>Servi Custumarii</i>.)
+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.</p>
+
+<p><span class="pagenum"><a name="Page_142" id="Page_142">142</a></span></p><p>The term <i>nativus</i> has a similar sense. But the relation
+between it and <i>villanus</i> is not constant; sometimes this
+latter marks the genus, while the former applies to a
+species; but sometimes they are used interchangeably<a name="FNanchor_256_256" id="FNanchor_256_256"></a><a href="#Footnote_256_256" class="fnanchor">[256]</a>,
+and the feminine for villain is <i>nieve</i> (<i>nativa</i>). But while
+<i>villanus</i> is made to appear both in a wide and in a restricted
+sense, and for this reason cannot be used as a
+special qualification, <i>nativus</i> has only the restricted sense
+suggesting status<a name="FNanchor_257_257" id="FNanchor_257_257"></a><a href="#Footnote_257_257" class="fnanchor">[257]</a>. In connection with other denominations
+<i>nativus</i> is used for the personally unfree<a name="FNanchor_258_258" id="FNanchor_258_258"></a><a href="#Footnote_258_258" class="fnanchor">[258]</a>. When
+we find <i>nativus domini</i>, the personal relation to the
+lord is especially noticed<a name="FNanchor_259_259" id="FNanchor_259_259"></a><a href="#Footnote_259_259" class="fnanchor">[259]</a>. The sense being such, no
+wonder that the nature of the tenure is sometimes described
+in addition<a name="FNanchor_260_260" id="FNanchor_260_260"></a><a href="#Footnote_260_260" class="fnanchor">[260]</a>. 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&mdash;<i>forinsecus</i>,
+<i>extraneus</i><a name="FNanchor_261_261" id="FNanchor_261_261"></a><a href="#Footnote_261_261" class="fnanchor">[261]</a>. In this sense again the Domesday<span class="pagenum"><a name="Page_143" id="Page_143">143</a></span>
+of St. Paul's speaks of 'nativi a principio' in Navestock<a name="FNanchor_262_262" id="FNanchor_262_262"></a><a href="#Footnote_262_262" class="fnanchor">[262]</a>.
+But the fact of being born to the condition supposes personal
+subjection, and this explains why <i>nativi</i> are sometimes
+mentioned in contrast with freemen<a name="FNanchor_263_263" id="FNanchor_263_263"></a><a href="#Footnote_263_263" class="fnanchor">[263]</a>, 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 <i>de nativo habendo</i>. One such pedigree preserved
+in the Record Office is especially interesting, because
+it starts from some stranger, <i>extraneus</i><a name="FNanchor_264_264" id="FNanchor_264_264"></a><a href="#Footnote_264_264" class="fnanchor">[264]</a>, who came
+into the manor as a freeman, and whose progeny lapses
+into personal villainage; apparently it is a case of villainage
+by prescription.</p>
+
+<div class="sidenote">Free men holding villain land.</div>
+
+<p>The other subdivision of the class&mdash;freemen holding
+unfree land<a name="FNanchor_265_265" id="FNanchor_265_265"></a><a href="#Footnote_265_265" class="fnanchor">[265]</a>&mdash;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<span class="pagenum"><a name="Page_144" id="Page_144">144</a></span>
+every other respect, as to services, mode of holding, etc.,
+there was no distinction. No wonder that the common
+term <i>villanus</i> is used quite broadly, and aims at the tenure
+more than at personal status.</p>
+
+<div class="sidenote">Terms to indicate economic condition.</div>
+
+<p>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 <i>villanus</i> seems to have been <i>niet</i> or
+<i>neat</i><a name="FNanchor_266_266" id="FNanchor_266_266"></a><a href="#Footnote_266_266" class="fnanchor">[266]</a>. It points to the regular cultivators of the arable,
+possessed of holdings of normal size and performing the
+typical services of the manor<a name="FNanchor_267_267" id="FNanchor_267_267"></a><a href="#Footnote_267_267" class="fnanchor">[267]</a>. 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<a name="FNanchor_268_268" id="FNanchor_268_268"></a><a href="#Footnote_268_268" class="fnanchor">[268]</a> that
+neats are more free than cottagers, and that they hold<span class="pagenum"><a name="Page_145" id="Page_145">145</a></span>
+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<a name="FNanchor_269_269" id="FNanchor_269_269"></a><a href="#Footnote_269_269" class="fnanchor">[269]</a>, and, being the
+main population of the village, <i>neats</i> are treated sometimes
+as if they were the only people there<a name="FNanchor_270_270" id="FNanchor_270_270"></a><a href="#Footnote_270_270" class="fnanchor">[270]</a>. The name
+may be explained etymologically by the Anglo-Saxon
+<i>geneat</i>, 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.</p>
+
+<p>Another Saxon term&mdash;<i>gebúr</i>&mdash;has left its trace in the
+<i>burus</i> and <i>buriman</i> of Norman records. The word does
+not occur very often, and seems to have been applied in
+two different ways&mdash;to the chief villains of the township
+in some places, and to the smaller tenantry, apparently in
+confusion with the Norman <i>bordarius</i>, in some other<a name="FNanchor_271_271" id="FNanchor_271_271"></a><a href="#Footnote_271_271" class="fnanchor">[271]</a>. The
+very possibility of such a confusion shows that it was
+going out of common use. On the other hand, the Danish
+equivalent <i>bondus</i> is widely spread. It is to be found constantly
+in the Danish counties<a name="FNanchor_272_272" id="FNanchor_272_272"></a><a href="#Footnote_272_272" class="fnanchor">[272]</a>. The original meaning
+is that of cultivator or 'husband'&mdash;the same in fact as that<span class="pagenum"><a name="Page_146" id="Page_146">146</a></span>
+of <i>gebúr</i> 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 <i>servus</i> and <i>villanus</i>, and sometimes
+opposed to them<a name="FNanchor_273_273" id="FNanchor_273_273"></a><a href="#Footnote_273_273" class="fnanchor">[273]</a>. Another word of kindred meaning,
+chiefly found in eastern districts, is <i>landsettus</i>, with the
+corresponding term for the tenure<a name="FNanchor_274_274" id="FNanchor_274_274"></a><a href="#Footnote_274_274" class="fnanchor">[274]</a>; this of course according
+to its etymology simply means an occupier, a man
+sitting on land.</p>
+
+<div class="sidenote">Terms to indicate the nature of services.</div>
+
+<p>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 <i>operarii</i><a name="FNanchor_275_275" id="FNanchor_275_275"></a><a href="#Footnote_275_275" class="fnanchor">[275]</a>. Another designation
+which may be found everywhere is <i>consuetudinarii</i> or
+<i>custumarii</i><a name="FNanchor_276_276" id="FNanchor_276_276"></a><a href="#Footnote_276_276" class="fnanchor">[276]</a>. 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<a name="FNanchor_277_277" id="FNanchor_277_277"></a><a href="#Footnote_277_277" class="fnanchor">[277]</a>. As the name does
+not give any indication as to the importance of the holding<span class="pagenum"><a name="Page_147" id="Page_147">147</a></span>
+a qualification is sometimes added to it, which determines
+the size of the tenement<a name="FNanchor_278_278" id="FNanchor_278_278"></a><a href="#Footnote_278_278" class="fnanchor">[278]</a>.</p>
+
+<p>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 <i>akermanni</i> or <i>carucarii</i><a name="FNanchor_279_279" id="FNanchor_279_279"></a><a href="#Footnote_279_279" class="fnanchor">[279]</a>,
+are mostly selected among the customary holders, and
+enjoy an immunity from ordinary work as long as they
+have to perform their special duty<a name="FNanchor_280_280" id="FNanchor_280_280"></a><a href="#Footnote_280_280" class="fnanchor">[280]</a>. On some occasions the
+records mention <i>gersumarii</i>, that is peasants who pay a
+<i>gersuma</i>, a fine for marrying their daughters<a name="FNanchor_281_281" id="FNanchor_281_281"></a><a href="#Footnote_281_281" class="fnanchor">[281]</a>. This payment
+being considered as the badge of personal serfdom,
+the class must have consisted of men personally unfree.</p>
+
+<div class="sidenote">Terms to indicate the size of the holding.</div>
+
+<p>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 <i>hidarii</i><a name="FNanchor_282_282" id="FNanchor_282_282"></a><a href="#Footnote_282_282" class="fnanchor">[282]</a>. This does
+not mean that every tenant held a whole hide. On the<span class="pagenum"><a name="Page_148" id="Page_148">148</a></span>
+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. <i>Virgatarius</i><a name="FNanchor_283_283" id="FNanchor_283_283"></a><a href="#Footnote_283_283" class="fnanchor">[283]</a> 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 <i>terra</i>,
+and holders of virgates&mdash;<i>yerdlings</i><a name="FNanchor_284_284" id="FNanchor_284_284"></a><a href="#Footnote_284_284" class="fnanchor">[284]</a>. Peasants possessed of
+half virgates are <i>halfyerdlings</i> accordingly. The expressions
+'a full villain<a name="FNanchor_285_285" id="FNanchor_285_285"></a><a href="#Footnote_285_285" class="fnanchor">[285]</a>' 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. <i>Ferlingseti</i> are to be met with now
+and then in connexion with the <i>ferling</i> or <i>ferdel</i>, the fourth
+part of a virgate<a name="FNanchor_286_286" id="FNanchor_286_286"></a><a href="#Footnote_286_286" class="fnanchor">[286]</a>.</p>
+
+<p>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' (<i>cotsetle</i>, <i>cottagiarii</i>,
+<i>cottarii</i><a name="FNanchor_287_287" id="FNanchor_287_287"></a><a href="#Footnote_287_287" class="fnanchor">[287]</a>, etc.). They get opposed to villains as to
+owners of normal holdings<a name="FNanchor_288_288" id="FNanchor_288_288"></a><a href="#Footnote_288_288" class="fnanchor">[288]</a>. Exceptionally the term is
+used for those who have very small holdings in the open<span class="pagenum"><a name="Page_149" id="Page_149">149</a></span>
+fields. In this case the authorities distinguish between
+greater and lesser cotters<a name="FNanchor_289_289" id="FNanchor_289_289"></a><a href="#Footnote_289_289" class="fnanchor">[289]</a>, between the owners of a 'full
+cote' and of 'half a cote<a name="FNanchor_290_290" id="FNanchor_290_290"></a><a href="#Footnote_290_290" class="fnanchor">[290]</a>.' The <i>bordarii</i>, so conspicuous
+in Domesday, and evidently representing small tenants of
+the same kind as the cottagers, disappear almost entirely
+in later times<a name="FNanchor_291_291" id="FNanchor_291_291"></a><a href="#Footnote_291_291" class="fnanchor">[291]</a>.</p>
+
+<div class="sidenote">Results as to terminology.</div>
+
+<p>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 <i>villani</i> and <i>bordarii</i>. 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 <i>ceorl</i>, <i>geneat</i>, and probably <i>gebúr</i>. 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 '<i>bordier</i>,' 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&mdash;<i>ceorl</i>&mdash;disappears
+entirely, and all the others taken together cannot balance
+the diffusion of the 'villains.' The disappearance of
+<i>ceorl</i> may be accounted for by the important fact that
+it was primarily the designation of a free man, and had not<span class="pagenum"><a name="Page_150" id="Page_150">150</a></span>
+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<a name="FNanchor_292_292" id="FNanchor_292_292"></a><a href="#Footnote_292_292" class="fnanchor">[292]</a>. A new turn had been given
+towards centralisation and organisation from above, and
+<i>villanus</i>, the Latin record term, illustrates very aptly the
+remodelling of the lower stratum of society by the influence
+of the curiously centralised English feudalism.</p>
+
+<p>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 <i>custumarii</i> at the worst&mdash;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.</p>
+
+<div class="sidenote">Rights of the lord.<br />
+Classification.</div>
+
+<p>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<span class="pagenum"><a name="Page_151" id="Page_151">151</a></span>
+aspects of the manorial relation. There were customs
+and services clearly derived from the <i>personal subjection of
+the villain</i>, which had its historical root in slavery. Some
+burdens again lay on the <i>land</i>, and not on the <i>person</i>.
+And finally, manorial exactions could grow from the <i>political
+sway</i> 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.</p>
+
+<div class="sidenote">Sale of villains.</div>
+
+<p>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<a name="FNanchor_293_293" id="FNanchor_293_293"></a><a href="#Footnote_293_293" class="fnanchor">[293]</a>. 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 <i>sequela</i>, but that in practice
+such transactions were uncommon<a name="FNanchor_294_294" id="FNanchor_294_294"></a><a href="#Footnote_294_294" class="fnanchor">[294]</a>. 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<span class="pagenum"><a name="Page_152" id="Page_152">152</a></span>
+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 <i>modus vivendi</i>, 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<span class="pagenum"><a name="Page_153" id="Page_153">153</a></span>
+proof in questions of status on the side contending against
+such liberty.</p>
+
+<div class="sidenote">Merchet.</div>
+
+<p>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 <i>merchetum</i>, a fine paid by the villain for marrying
+his daughter<a name="FNanchor_295_295" id="FNanchor_295_295"></a><a href="#Footnote_295_295" class="fnanchor">[295]</a>. 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 <i>maritagium</i> 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 <i>merchetum</i> 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.</p>
+
+<p>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<a name="FNanchor_296_296" id="FNanchor_296_296"></a><a href="#Footnote_296_296" class="fnanchor">[296]</a>. When the case is mentioned<span class="pagenum"><a name="Page_154" id="Page_154">154</a></span>
+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<a name="FNanchor_297_297" id="FNanchor_297_297"></a><a href="#Footnote_297_297" class="fnanchor">[297]</a>.</p>
+
+<div class="sidenote">Origin and modifications of merchet.</div>
+
+<p>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 <i>status</i>. Although it is often treated
+expressly as a note of serfdom<a name="FNanchor_298_298" id="FNanchor_298_298"></a><a href="#Footnote_298_298" class="fnanchor">[298]</a>, 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.</p>
+
+<p>If, on the one hand, not all the serfs paid merchet, on<span class="pagenum"><a name="Page_155" id="Page_155">155</a></span>
+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.</p>
+
+<p>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,&mdash;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<a name="FNanchor_299_299" id="FNanchor_299_299"></a><a href="#Footnote_299_299" class="fnanchor">[299]</a>, 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<span class="pagenum"><a name="Page_156" id="Page_156">156</a></span>
+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.</p>
+
+<div class="sidenote">Servile customs.</div>
+
+<p>The same observations hold good in regard to other
+customs which come to be considered as implying personal
+servitude<a name="FNanchor_300_300" id="FNanchor_300_300"></a><a href="#Footnote_300_300" class="fnanchor">[300]</a>. 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<a name="FNanchor_301_301" id="FNanchor_301_301"></a><a href="#Footnote_301_301" class="fnanchor">[301]</a>.
+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<a name="FNanchor_302_302" id="FNanchor_302_302"></a><a href="#Footnote_302_302" class="fnanchor">[302]</a>; as for the rule of<span class="pagenum"><a name="Page_157" id="Page_157">157</a></span>
+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.</p>
+
+<div class="sidenote">Control over the movements of the peasantry.</div>
+
+<p>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<a name="FNanchor_303_303" id="FNanchor_303_303"></a><a href="#Footnote_303_303" class="fnanchor">[303]</a>. 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<a name="FNanchor_304_304" id="FNanchor_304_304"></a><a href="#Footnote_304_304" class="fnanchor">[304]</a>. 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<span class="pagenum"><a name="Page_158" id="Page_158">158</a></span>
+territory&mdash;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<a name="FNanchor_305_305" id="FNanchor_305_305"></a><a href="#Footnote_305_305" class="fnanchor">[305]</a>, 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<a name="FNanchor_306_306" id="FNanchor_306_306"></a><a href="#Footnote_306_306" class="fnanchor">[306]</a>. Every kind of personal commendation to
+influential people is also forbidden<a name="FNanchor_307_307" id="FNanchor_307_307"></a><a href="#Footnote_307_307" class="fnanchor">[307]</a>.</p>
+
+<p>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<a name="FNanchor_308_308" id="FNanchor_308_308"></a><a href="#Footnote_308_308" class="fnanchor">[308]</a>. It is by
+no means exceptional to find mention of enterprising
+landlords drawing away the population from their neighbours'
+manors<a name="FNanchor_309_309" id="FNanchor_309_309"></a><a href="#Footnote_309_309" class="fnanchor">[309]</a>. The fugitive villain and the settler who<span class="pagenum"><a name="Page_159" id="Page_159">159</a></span>
+comes from afar are a well-marked feature of this feudal
+society<a name="FNanchor_310_310" id="FNanchor_310_310"></a><a href="#Footnote_310_310" class="fnanchor">[310]</a>.</p>
+
+<div class="sidenote">Limitations as to property.</div>
+
+<p>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<a name="FNanchor_311_311" id="FNanchor_311_311"></a><a href="#Footnote_311_311" class="fnanchor">[311]</a>. 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<a name="FNanchor_312_312" id="FNanchor_312_312"></a><a href="#Footnote_312_312" class="fnanchor">[312]</a>. In both instances the principle is laid down expressly,
+but in other cases peasants were deprived of their
+property without any formal explanation.</p>
+
+<div class="sidenote">Heriot.</div>
+
+<p>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<span class="pagenum"><a name="Page_160" id="Page_160">160</a></span>
+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 <i>heriot</i> 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<a name="FNanchor_313_313" id="FNanchor_313_313"></a><a href="#Footnote_313_313" class="fnanchor">[313]</a>. The villains of St. Alban's
+have to give the best head of cattle, and all house furniture<a name="FNanchor_314_314" id="FNanchor_314_314"></a><a href="#Footnote_314_314" class="fnanchor">[314]</a>.
+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<a name="FNanchor_315_315" id="FNanchor_315_315"></a><a href="#Footnote_315_315" class="fnanchor">[315]</a>. The Cartulary of Battle is exceptionally
+lenient as to one of the Abbey's manors<a name="FNanchor_316_316" id="FNanchor_316_316"></a><a href="#Footnote_316_316" class="fnanchor">[316]</a>: 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<a name="FNanchor_317_317" id="FNanchor_317_317"></a><a href="#Footnote_317_317" class="fnanchor">[317]</a>. Such 'free bench' is regulated very
+differently by different customs. The most common requirement<span class="pagenum"><a name="Page_161" id="Page_161">161</a></span>
+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<a name="FNanchor_318_318" id="FNanchor_318_318"></a><a href="#Footnote_318_318" class="fnanchor">[318]</a>.</p>
+
+<p>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'&mdash;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<a name="FNanchor_319_319" id="FNanchor_319_319"></a><a href="#Footnote_319_319" class="fnanchor">[319]</a>: 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<span class="pagenum"><a name="Page_162" id="Page_162">162</a></span>
+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.</p>
+
+<div class="sidenote">Relief.</div>
+
+<p>It is otherwise with the <i>relief</i> (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<a name="FNanchor_320_320" id="FNanchor_320_320"></a><a href="#Footnote_320_320" class="fnanchor">[320]</a>. Fixed sums occur also,
+and they vary according to the size and quality of the
+holding<a name="FNanchor_321_321" id="FNanchor_321_321"></a><a href="#Footnote_321_321" class="fnanchor">[321]</a>.</p>
+
+<div class="sidenote">Political rights.</div>
+
+<p>On the boundary between personal subjection and
+political subordination we find the liability of the peasantry
+to pay <i>tallage</i>. It could be equally deduced from the<span class="pagenum"><a name="Page_163" id="Page_163">163</a></span>
+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<a name="FNanchor_322_322" id="FNanchor_322_322"></a><a href="#Footnote_322_322" class="fnanchor">[322]</a>. 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<a name="FNanchor_323_323" id="FNanchor_323_323"></a><a href="#Footnote_323_323" class="fnanchor">[323]</a>, although the
+amount remains uncertain.</p>
+
+<p>As a holder of political power the lord has a right to
+inflict fines and amercements on transgressors<a name="FNanchor_324_324" id="FNanchor_324_324"></a><a href="#Footnote_324_324" class="fnanchor">[324]</a>. 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.</p>
+
+<p>Lastly, we may classify under the head of political exactions,
+monopolies and privileges such as those which were
+called <i>banalités</i> 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<span class="pagenum"><a name="Page_164" id="Page_164">164</a></span>
+their corn<a name="FNanchor_325_325" id="FNanchor_325_325"></a><a href="#Footnote_325_325" class="fnanchor">[325]</a>; there is also the manorial fold in which all the
+sheep of the township had to be enclosed<a name="FNanchor_326_326" id="FNanchor_326_326"></a><a href="#Footnote_326_326" class="fnanchor">[326]</a>. 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 <i>Scotale</i><a name="FNanchor_327_327" id="FNanchor_327_327"></a><a href="#Footnote_327_327" class="fnanchor">[327]</a>,
+that is ale supplied by the lord&mdash;for a good price, of
+course.</p>
+
+<div class="sidenote">Villain tenure.</div>
+
+<p>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<a name="FNanchor_328_328" id="FNanchor_328_328"></a><a href="#Footnote_328_328" class="fnanchor">[328]</a>. 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<span class="pagenum"><a name="Page_165" id="Page_165">165</a></span>
+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.</p>
+
+<p>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<a name="FNanchor_329_329" id="FNanchor_329_329"></a><a href="#Footnote_329_329" class="fnanchor">[329]</a>. The owner may take it away when
+he pleases, and alter its condition at will. The Abingdon
+Chronicle tells us<a name="FNanchor_330_330" id="FNanchor_330_330"></a><a href="#Footnote_330_330" class="fnanchor">[330]</a> 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&mdash;its
+insecurity&mdash;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<a name="FNanchor_331_331" id="FNanchor_331_331"></a><a href="#Footnote_331_331" class="fnanchor">[331]</a>. 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<span class="pagenum"><a name="Page_166" id="Page_166">166</a></span>
+were removed from eight hides of land by one of the contracting
+parties<a name="FNanchor_332_332" id="FNanchor_332_332"></a><a href="#Footnote_332_332" class="fnanchor">[332]</a>.</p>
+
+<div class="sidenote">Control of the lord over the villain's land.</div>
+
+<p>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<a name="FNanchor_333_333" id="FNanchor_333_333"></a><a href="#Footnote_333_333" class="fnanchor">[333]</a>. 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<a name="FNanchor_334_334" id="FNanchor_334_334"></a><a href="#Footnote_334_334" class="fnanchor">[334]</a>. 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<a name="FNanchor_335_335" id="FNanchor_335_335"></a><a href="#Footnote_335_335" class="fnanchor">[335]</a>.
+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<a name="FNanchor_336_336" id="FNanchor_336_336"></a><a href="#Footnote_336_336" class="fnanchor">[336]</a>. A<span class="pagenum"><a name="Page_167" id="Page_167">167</a></span>
+default in paying rents or in the performance of services,
+and any other transgression against the interests of the lord,
+may lead to forfeiture<a name="FNanchor_337_337" id="FNanchor_337_337"></a><a href="#Footnote_337_337" class="fnanchor">[337]</a>. 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<a name="FNanchor_338_338" id="FNanchor_338_338"></a><a href="#Footnote_338_338" class="fnanchor">[338]</a>. 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<a name="FNanchor_339_339" id="FNanchor_339_339"></a><a href="#Footnote_339_339" class="fnanchor">[339]</a>.</p>
+
+<div class="sidenote">Tenure by rent considered free; tenure by agricultural work, servile.</div>
+
+<p>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<a name="FNanchor_340_340" id="FNanchor_340_340"></a><a href="#Footnote_340_340" class="fnanchor">[340]</a> 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<span class="pagenum"><a name="Page_168" id="Page_168">168</a></span>
+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.</p>
+
+<p>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<a name="FNanchor_341_341" id="FNanchor_341_341"></a><a href="#Footnote_341_341" class="fnanchor">[341]</a>?' 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<span class="pagenum"><a name="Page_169" id="Page_169">169</a></span>
+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<a name="FNanchor_342_342" id="FNanchor_342_342"></a><a href="#Footnote_342_342" class="fnanchor">[342]</a>. The opposition is quite clear, and
+entirely suited to the list of questions addressed to the jury.
+The meaning of the terms <i>free</i> and <i>freedom</i> 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<a name="FNanchor_343_343" id="FNanchor_343_343"></a><a href="#Footnote_343_343" class="fnanchor">[343]</a>.</p>
+
+<p>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<a name="FNanchor_344_344" id="FNanchor_344_344"></a><a href="#Footnote_344_344" class="fnanchor">[344]</a>.' 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 (<i>liberae</i>, <i>ad
+opus</i><a name="FNanchor_345_345" id="FNanchor_345_345"></a><a href="#Footnote_345_345" class="fnanchor">[345]</a>).</p>
+
+<p><span class="pagenum"><a name="Page_170" id="Page_170">170</a></span></p><div class="sidenote">Terra ad furcam et flagellum.</div>
+
+<p>In opposition to free service, that is rent, we find both the
+<i>villenagium</i><a name="FNanchor_346_346" id="FNanchor_346_346"></a><a href="#Footnote_346_346" class="fnanchor">[346]</a> and the <i>terra consuetudinaria</i> or <i>customaria</i><a name="FNanchor_347_347" id="FNanchor_347_347"></a><a href="#Footnote_347_347" class="fnanchor">[347]</a>,
+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<a name="FNanchor_348_348" id="FNanchor_348_348"></a><a href="#Footnote_348_348" class="fnanchor">[348]</a>; 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&mdash;<i>terra ad furcam et flagellum</i><a name="FNanchor_349_349" id="FNanchor_349_349"></a><a href="#Footnote_349_349" class="fnanchor">[349]</a>,
+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<a name="FNanchor_350_350" id="FNanchor_350_350"></a><a href="#Footnote_350_350" class="fnanchor">[350]</a>, instead of simply
+paying rent. In view of such a phraseology the same<span class="pagenum"><a name="Page_171" id="Page_171">171</a></span>
+tenement could alternately be considered as a free or a
+servile one, according to its changing obligations<a name="FNanchor_351_351" id="FNanchor_351_351"></a><a href="#Footnote_351_351" class="fnanchor">[351]</a>. Some
+surveys insert two parallel descriptions of duties which are
+meant to fit both eventualities; when the land is <i>ad opus</i>,
+it owes such and such services; when it is <i>ad censum</i>,
+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, <i>vice versâ</i>, land subjected to village-work
+pays small rents<a name="FNanchor_352_352" id="FNanchor_352_352"></a><a href="#Footnote_352_352" class="fnanchor">[352]</a>; the general quality of the holding is
+made to depend on the prevailing character of the duties.</p>
+
+<p>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<span class="pagenum"><a name="Page_172" id="Page_172">172</a></span>
+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.</p>
+
+<div class="sidenote">Custom in the exercise of manorial rights.</div>
+
+<p>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,
+<i>if it can be done conveniently and honestly</i><a name="FNanchor_353_353" id="FNanchor_353_353"></a><a href="#Footnote_353_353" class="fnanchor">[353]</a>. 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<a name="FNanchor_354_354" id="FNanchor_354_354"></a><a href="#Footnote_354_354" class="fnanchor">[354]</a>. '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<a name="FNanchor_355_355" id="FNanchor_355_355"></a><a href="#Footnote_355_355" class="fnanchor">[355]</a>.' 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,<span class="pagenum"><a name="Page_173" id="Page_173">173</a></span>
+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<a name="FNanchor_356_356" id="FNanchor_356_356"></a><a href="#Footnote_356_356" class="fnanchor">[356]</a>. An Essex
+villain claims succession by hereditary right, for himself and
+his heirs<a name="FNanchor_357_357" id="FNanchor_357_357"></a><a href="#Footnote_357_357" class="fnanchor">[357]</a>. 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<a name="FNanchor_358_358" id="FNanchor_358_358"></a><a href="#Footnote_358_358" class="fnanchor">[358]</a>. 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 <i>tenere per virgam aut
+per rotulum Curie</i><a name="FNanchor_359_359" id="FNanchor_359_359"></a><a href="#Footnote_359_359" class="fnanchor">[359]</a>.</p>
+
+<div class="sidenote">Customary duties of the lord in regard to the peasantry.</div>
+
+<p>I ought perhaps to treat here of the different and interesting
+forms assumed by services and rents as consequences<span class="pagenum"><a name="Page_174" id="Page_174">174</a></span>
+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<a name="FNanchor_360_360" id="FNanchor_360_360"></a><a href="#Footnote_360_360" class="fnanchor">[360]</a>,'
+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.</p>
+
+<p>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<a name="FNanchor_361_361" id="FNanchor_361_361"></a><a href="#Footnote_361_361" class="fnanchor">[361]</a>. When the villain brings his yearly rent to
+his lord, the latter often invites him to his table<a name="FNanchor_362_362" id="FNanchor_362_362"></a><a href="#Footnote_362_362" class="fnanchor">[362]</a>. Very
+common is the practice of providing a meal for the
+labourers on the <i>boon-days</i>, 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<span class="pagenum"><a name="Page_175" id="Page_175">175</a></span>
+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<a name="FNanchor_363_363" id="FNanchor_363_363"></a><a href="#Footnote_363_363" class="fnanchor">[363]</a>.'</p>
+
+<p>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<a name="FNanchor_364_364" id="FNanchor_364_364"></a><a href="#Footnote_364_364" class="fnanchor">[364]</a>. 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.</p>
+<p><span class="pagenum"><a name="Page_176" id="Page_176">176</a></span></p>
+<div class="sidenote">Customs in the arrangement of agricultural work.</div>
+
+<p>These regularly recurring <i>liberationes</i> or <i>liberaturae</i> 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<a name="FNanchor_365_365" id="FNanchor_365_365"></a><a href="#Footnote_365_365" class="fnanchor">[365]</a>. A baker belonging to Glastonbury Abbey is
+not bound to carry loads unless a cart is provided him<a name="FNanchor_366_366" id="FNanchor_366_366"></a><a href="#Footnote_366_366" class="fnanchor">[366]</a>. 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<a name="FNanchor_367_367" id="FNanchor_367_367"></a><a href="#Footnote_367_367" class="fnanchor">[367]</a>. 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&mdash;to riots and desertion.</p>
+
+<p>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
+<i>servi</i> 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.<span class="pagenum"><a name="Page_177" id="Page_177">177</a></span>
+And still the lord does not tallage them at pleasure&mdash;they
+are secure in the possession of their waynage (<i>salvo contenemento</i>)<a name="FNanchor_368_368" id="FNanchor_368_368"></a><a href="#Footnote_368_368" class="fnanchor">[368]</a>.</p>
+
+<p>We may sum up the results already obtained by our
+analysis of manorial documents in the following propositions:&mdash;</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+<hr class="chap" /><p><span class="pagenum"><a name="Page_178" id="Page_178">178</a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_1_VI" id="CHAPTER_1_VI"></a>CHAPTER VI.</h2>
+
+<p class="center">FREE PEASANTRY.</p>
+
+
+<p>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 <i>villains</i>;
+a smaller, but by no means an insignificant or scanty one,
+will present itself as <i>free</i>, 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.</p>
+
+<div class="sidenote">General condition of England.</div>
+
+<p>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<span class="pagenum"><a name="Page_179" id="Page_179">179</a></span>
+pay money, whereas they used to do work, and who have
+thus emancipated themselves from the most onerous form
+of subjection<a name="FNanchor_369_369" id="FNanchor_369_369"></a><a href="#Footnote_369_369" class="fnanchor">[369]</a>. 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<a name="FNanchor_370_370" id="FNanchor_370_370"></a><a href="#Footnote_370_370" class="fnanchor">[370]</a>. 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,&mdash;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<span class="pagenum"><a name="Page_180" id="Page_180">180</a></span>
+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.</p>
+
+<p>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 <i>natural husbandry</i>
+to the <i>money-system</i>.</p><p><span class="pagenum"><a name="Page_181" id="Page_181">181</a></span></p>
+
+<div class="sidenote">Commutation.</div>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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&mdash;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<span class="pagenum"><a name="Page_182" id="Page_182">182</a></span>
+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.</p>
+
+<div class="sidenote">Social results of commutation.</div>
+
+<p>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<a name="FNanchor_371_371" id="FNanchor_371_371"></a><a href="#Footnote_371_371" class="fnanchor">[371]</a>: 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<a name="FNanchor_372_372" id="FNanchor_372_372"></a><a href="#Footnote_372_372" class="fnanchor">[372]</a>.</p>
+
+<p>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<span class="pagenum"><a name="Page_183" id="Page_183">183</a></span>
+from certain duties by charter<a name="FNanchor_373_373" id="FNanchor_373_373"></a><a href="#Footnote_373_373" class="fnanchor">[373]</a>, 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<a name="FNanchor_374_374" id="FNanchor_374_374"></a><a href="#Footnote_374_374" class="fnanchor">[374]</a>. 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<a name="FNanchor_375_375" id="FNanchor_375_375"></a><a href="#Footnote_375_375" class="fnanchor">[375]</a>.</p>
+
+<div class="sidenote">Molmen.</div>
+
+
+
+<p>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<a name="FNanchor_376_376" id="FNanchor_376_376"></a><a href="#Footnote_376_376" class="fnanchor">[376]</a>. 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<a name="FNanchor_377_377" id="FNanchor_377_377"></a><a href="#Footnote_377_377" class="fnanchor">[377]</a>. Kentish documents use 'mala' or 'mal' for a<span class="pagenum"><a name="Page_184" id="Page_184">184</a></span>
+particular species of rent, and explain the term as a payment
+in commutation of servile customs<a name="FNanchor_378_378" id="FNanchor_378_378"></a><a href="#Footnote_378_378" class="fnanchor">[378]</a>. In this sense
+it is sometimes opposed to <i>gafol</i> or <i>gable</i>&mdash;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<a name="FNanchor_379_379" id="FNanchor_379_379"></a><a href="#Footnote_379_379" class="fnanchor">[379]</a>. Etymologically there is
+reason to believe that the term <i>mal</i> is of Danish origin<a name="FNanchor_380_380" id="FNanchor_380_380"></a><a href="#Footnote_380_380" class="fnanchor">[380]</a>,
+and the meaning has been kept in practice by the Scotch
+dialect<a name="FNanchor_381_381" id="FNanchor_381_381"></a><a href="#Footnote_381_381" class="fnanchor">[381]</a>. 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.<span class="sidenote">Improvement of condition.</span> 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<a name="FNanchor_382_382" id="FNanchor_382_382"></a><a href="#Footnote_382_382" class="fnanchor">[382]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_185" id="Page_185">185</a></span></p><p>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<a name="FNanchor_383_383" id="FNanchor_383_383"></a><a href="#Footnote_383_383" class="fnanchor">[383]</a>. 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<a name="FNanchor_384_384" id="FNanchor_384_384"></a><a href="#Footnote_384_384" class="fnanchor">[384]</a>. Borough English was
+very widely held in medieval England to imply servile
+occupation of land<a name="FNanchor_385_385" id="FNanchor_385_385"></a><a href="#Footnote_385_385" class="fnanchor">[385]</a>, and the privilege enjoyed by molmen<span class="pagenum"><a name="Page_186" id="Page_186">186</a></span>
+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:&mdash;</p>
+
+<p class="blockquot">
+Liberi tenentes per cartam.<br />
+Liberi tenentes qui vocantur fresokemen.<br />
+Sokemanni qui vocantur molmen.<br />
+Custumarii qui vocantur werkmen.<br />
+Consuetudinarii tenentes 4 acras terre.<br />
+Consuetudinarii tenentes 2 acras terre<a name="FNanchor_386_386" id="FNanchor_386_386"></a><a href="#Footnote_386_386" class="fnanchor">[386]</a>.<br />
+</p>
+
+<p>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.</p>
+
+<div class="sidenote">Censuarii and gavelmen.</div>
+
+<p>The same group appears in manorial documents under the
+name of <i>censuarii</i><a name="FNanchor_387_387" id="FNanchor_387_387"></a><a href="#Footnote_387_387" class="fnanchor">[387]</a>. Both terms interchange, and we find the
+same fluctuation between free and servile condition in regard
+to the <i>censuarii</i> as in regard to <i>molmen</i>. The thirteenth-century<span class="pagenum"><a name="Page_187" id="Page_187">187</a></span>
+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 <i>liberi</i> and <i>villani</i>, 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 <i>liberi et censuarii</i><a name="FNanchor_388_388" id="FNanchor_388_388"></a><a href="#Footnote_388_388" class="fnanchor">[388]</a>.</p>
+
+<p>A similar condition is indicated by the term <i>gavelmanni</i>,
+which occurs sometimes, although not so often as either of
+the designations just mentioned<a name="FNanchor_389_389" id="FNanchor_389_389"></a><a href="#Footnote_389_389" class="fnanchor">[389]</a>. It comes evidently from
+<i>gafol</i> or <i>gafel</i>, 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 <i>mal</i> be taken as a
+commutation rent, and <i>gafol</i> 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. <i>Vice versa</i>, it is very probable
+indeed that the groups of <i>censuarii</i> and <i>molmen</i> are not to
+be taken exclusively as the outcome of commutation. If
+<i>gafol</i> gets to be rather indistinct in its meaning, so does
+<i>mal</i>, and as to <i>census</i>, there is nothing to show whether it
+arises in consequence of commutation or of original agreement.<span class="pagenum"><a name="Page_188" id="Page_188">188</a></span>
+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 <i>free</i> 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.</p>
+
+<div class="sidenote">Hundredarii.</div>
+
+<p>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<a name="FNanchor_390_390" id="FNanchor_390_390"></a><a href="#Footnote_390_390" class="fnanchor">[390]</a>. 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<a name="FNanchor_391_391" id="FNanchor_391_391"></a><a href="#Footnote_391_391" class="fnanchor">[391]</a>. And although
+the name does not occur often even in the Ely Surveys,
+and is very rare indeed elsewhere<a name="FNanchor_392_392" id="FNanchor_392_392"></a><a href="#Footnote_392_392" class="fnanchor">[392]</a>, the thing is quite<span class="pagenum"><a name="Page_189" id="Page_189">189</a></span>
+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<a name="FNanchor_393_393" id="FNanchor_393_393"></a><a href="#Footnote_393_393" class="fnanchor">[393]</a>. The same
+people have to attend the County Court and to meet the
+King's justices when they are holding an eyre<a name="FNanchor_394_394" id="FNanchor_394_394"></a><a href="#Footnote_394_394" class="fnanchor">[394]</a>. 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<a name="FNanchor_395_395" id="FNanchor_395_395"></a><a href="#Footnote_395_395" class="fnanchor">[395]</a>. They are exempted from other services in
+regard to this 'external,' this 'forinsec' duty, which was
+considered as by no means a light one<a name="FNanchor_396_396" id="FNanchor_396_396"></a><a href="#Footnote_396_396" class="fnanchor">[396]</a>.</p>
+
+<div class="sidenote">Hundredors as villains.</div>
+
+<p>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 <i>prima facie</i> impossible that it
+should be performed everywhere by freeholders in <i>the
+usual sense of the word</i>. 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<span class="pagenum"><a name="Page_190" id="Page_190">190</a></span>
+peasants or yeomen<a name="FNanchor_397_397" id="FNanchor_397_397"></a><a href="#Footnote_397_397" class="fnanchor">[397]</a>. 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<a name="FNanchor_398_398" id="FNanchor_398_398"></a><a href="#Footnote_398_398" class="fnanchor">[398]</a>.
+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<a name="FNanchor_399_399" id="FNanchor_399_399"></a><a href="#Footnote_399_399" class="fnanchor">[399]</a>. 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.</p>
+
+<div class="sidenote">Hundredors as free tenants.</div>
+
+<p>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<span class="pagenum"><a name="Page_191" id="Page_191">191</a></span>
+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<a name="FNanchor_400_400" id="FNanchor_400_400"></a><a href="#Footnote_400_400" class="fnanchor">[400]</a>. 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<a name="FNanchor_401_401" id="FNanchor_401_401"></a><a href="#Footnote_401_401" class="fnanchor">[401]</a>. 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<span class="pagenum"><a name="Page_192" id="Page_192">192</a></span>
+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.</p>
+
+<div class="sidenote">The Hundred Courts.</div>
+
+<p>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 <i>of them</i> to swear that they will
+make presentment according to the articles. Afterwards
+the <i>rest</i> shall be sworn by dozens and by townships, that
+they will make lawful presentment to the <i>first twelve
+jurors</i><a name="FNanchor_402_402" id="FNanchor_402_402"></a><a href="#Footnote_402_402" class="fnanchor">[402]</a>.' 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<a name="FNanchor_403_403" id="FNanchor_403_403"></a><a href="#Footnote_403_403" class="fnanchor">[403]</a>, 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<span class="pagenum"><a name="Page_193" id="Page_193">193</a></span>
+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<a name="FNanchor_404_404" id="FNanchor_404_404"></a><a href="#Footnote_404_404" class="fnanchor">[404]</a>:' this expression seems an equivalent to the 'free<span class="pagenum"><a name="Page_194" id="Page_194">194</a></span>
+and lawful' men of other cases, and at the same time it
+includes distinctly the great bulk of the villain population
+as personally free.</p>
+
+<div class="sidenote">Results as to hundredors.</div>
+
+<p>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<a name="FNanchor_405_405" id="FNanchor_405_405"></a><a href="#Footnote_405_405" class="fnanchor">[405]</a>. 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<span class="pagenum"><a name="Page_195" id="Page_195">195</a></span>
+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<a name="FNanchor_406_406" id="FNanchor_406_406"></a><a href="#Footnote_406_406" class="fnanchor">[406]</a>. 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<a name="FNanchor_407_407" id="FNanchor_407_407"></a><a href="#Footnote_407_407" class="fnanchor">[407]</a>. 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)&nbsp;that the administrative<span class="pagenum"><a name="Page_196" id="Page_196">196</a></span>
+constitution of hundred and county is derived from a
+social system which did not recognise the feudal opposition
+between freeholder and villain; (2)&nbsp;that we must look
+upon feudal villainage as representing to a large extent
+a population originally free; (3)&nbsp;that this original freedom
+was not simply one of personal status, but actually influenced
+the conception of tenure even in later days<a name="FNanchor_408_408" id="FNanchor_408_408"></a><a href="#Footnote_408_408" class="fnanchor">[408]</a>.</p>
+
+<div class="sidenote">Socmen.</div>
+
+<p>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&mdash;the <i>socmen</i>. 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&mdash;even in the thirteenth century&mdash;'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&mdash;free
+men, villains, and socmen. These last are said<span class="pagenum"><a name="Page_197" id="Page_197">197</a></span>
+to occupy an intermediate position, because they are as
+<i>statu liberi</i> in regard to their lords<a name="FNanchor_409_409" id="FNanchor_409_409"></a><a href="#Footnote_409_409" class="fnanchor">[409]</a>. 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 <i>free</i> socage: this fact
+will give us a second clue in analysing the condition.</p>
+
+<div class="sidenote">Charter and communal testimony.</div>
+
+<p>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),<span class="pagenum"><a name="Page_198" id="Page_198">198</a></span>
+while socage was in truth copyhold secured by communal
+custom<a name="FNanchor_410_410" id="FNanchor_410_410"></a><a href="#Footnote_410_410" class="fnanchor">[410]</a>. 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.</p>
+
+<p>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<a name="FNanchor_411_411" id="FNanchor_411_411"></a><a href="#Footnote_411_411" class="fnanchor">[411]</a>. 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<a name="FNanchor_412_412" id="FNanchor_412_412"></a><a href="#Footnote_412_412" class="fnanchor">[412]</a>.
+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<span class="pagenum"><a name="Page_199" id="Page_199">199</a></span>
+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<a name="FNanchor_413_413" id="FNanchor_413_413"></a><a href="#Footnote_413_413" class="fnanchor">[413]</a>. 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<a name="FNanchor_414_414" id="FNanchor_414_414"></a><a href="#Footnote_414_414" class="fnanchor">[414]</a>. 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.</p>
+
+<div class="sidenote">Bond socmen.</div>
+
+<p>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 <i>vice versa</i>. 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.'</p>
+
+<p>Two cases from the Hundred Rolls may serve as an illustration
+of this not unimportant point. The vill of Soham
+in Cambridgeshire<a name="FNanchor_415_415" id="FNanchor_415_415"></a><a href="#Footnote_415_415" class="fnanchor">[415]</a> was owned in 1279 partly by the King,
+partly by the Earl Marshall, and partly by the Bishop<span class="pagenum"><a name="Page_200" id="Page_200">200</a></span>
+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&mdash;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&mdash;it
+would be impossible to regard them as a later adjunct to
+the village. Their status is not a result of commutation&mdash;they
+are still performing agricultural work, and therefore
+<i>bond</i> 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 <i>free socmen</i> whose holdings
+are quite irregular in size: they pay rent, and are exempted
+from agricultural work. Then come five <i>bond socmen</i>, holding
+thirty acres each, and nine <i>bonds</i> 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<span class="pagenum"><a name="Page_201" id="Page_201">201</a></span>
+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.</p>
+
+<p>Soham is ancient demesne. Let us now take Crowmarsh
+in Oxfordshire<a name="FNanchor_416_416" id="FNanchor_416_416"></a><a href="#Footnote_416_416" class="fnanchor">[416]</a>. 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 <i>servi socomanni</i>
+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 <i>servi</i> and <i>liberi</i> 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.</p>
+
+<div class="sidenote">Servile duties of socmen and freeholders.</div>
+
+<p>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<a name="FNanchor_417_417" id="FNanchor_417_417"></a><a href="#Footnote_417_417" class="fnanchor">[417]</a>. 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<a name="FNanchor_418_418" id="FNanchor_418_418"></a><a href="#Footnote_418_418" class="fnanchor">[418]</a>, 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,<span class="pagenum"><a name="Page_202" id="Page_202">202</a></span>
+Oxon<a name="FNanchor_419_419" id="FNanchor_419_419"></a><a href="#Footnote_419_419" class="fnanchor">[419]</a>, a spear and four pence are given in payment. The
+socmen of Peterborough Abbey<a name="FNanchor_420_420" id="FNanchor_420_420"></a><a href="#Footnote_420_420" class="fnanchor">[420]</a> 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<a name="FNanchor_421_421" id="FNanchor_421_421"></a><a href="#Footnote_421_421" class="fnanchor">[421]</a>. 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<a name="FNanchor_422_422" id="FNanchor_422_422"></a><a href="#Footnote_422_422" class="fnanchor">[422]</a>, 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<a name="FNanchor_423_423" id="FNanchor_423_423"></a><a href="#Footnote_423_423" class="fnanchor">[423]</a>.
+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<a name="FNanchor_424_424" id="FNanchor_424_424"></a><a href="#Footnote_424_424" class="fnanchor">[424]</a>.</p>
+
+<p>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<a name="FNanchor_425_425" id="FNanchor_425_425"></a><a href="#Footnote_425_425" class="fnanchor">[425]</a>, sometimes he has to act as a kind
+of overseer<a name="FNanchor_426_426" id="FNanchor_426_426"></a><a href="#Footnote_426_426" class="fnanchor">[426]</a>, and in any case this base labour would not
+degrade him from his position<a name="FNanchor_427_427" id="FNanchor_427_427"></a><a href="#Footnote_427_427" class="fnanchor">[427]</a>. Already in Bracton's
+day the learned thought that the term 'socage' was
+etymologically connected with the duty of ploughing:&mdash;a
+curious proof both of the rapidity with which past history
+had become unintelligible, and of the perfect compatibility<span class="pagenum"><a name="Page_203" id="Page_203">203</a></span>
+of socage with labour services. Merchet, heriot, and tallage
+occur even more often<a name="FNanchor_428_428" id="FNanchor_428_428"></a><a href="#Footnote_428_428" class="fnanchor">[428]</a>. 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<a name="FNanchor_429_429" id="FNanchor_429_429"></a><a href="#Footnote_429_429" class="fnanchor">[429]</a>.
+Merchet is especially interesting as illustrating the fusion
+of different duties into one. It is the base payment <i>par
+excellence</i>, and often used in manorial documents as a
+means to draw the line between free and unfree men<a name="FNanchor_430_430" id="FNanchor_430_430"></a><a href="#Footnote_430_430" class="fnanchor">[430]</a>.
+Nevertheless free tenants are very often found to pay it<a name="FNanchor_431_431" id="FNanchor_431_431"></a><a href="#Footnote_431_431" class="fnanchor">[431]</a>.
+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<a name="FNanchor_432_432" id="FNanchor_432_432"></a><a href="#Footnote_432_432" class="fnanchor">[432]</a>. 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,<span class="pagenum"><a name="Page_204" id="Page_204">204</a></span>
+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.</p>
+
+<div class="sidenote">Feudal oppression in the direction of servitude.</div>
+
+<p>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<a name="FNanchor_433_433" id="FNanchor_433_433"></a><a href="#Footnote_433_433" class="fnanchor">[433]</a>,
+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<a name="FNanchor_434_434" id="FNanchor_434_434"></a><a href="#Footnote_434_434" class="fnanchor">[434]</a> 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<a name="FNanchor_435_435" id="FNanchor_435_435"></a><a href="#Footnote_435_435" class="fnanchor">[435]</a>, the tenantry complain of new
+exactions on the part of the lord; in King's Ripton<a name="FNanchor_436_436" id="FNanchor_436_436"></a><a href="#Footnote_436_436" class="fnanchor">[436]</a>,
+Hunts, merchet is introduced which was never paid before;
+in Collecot, Berks<a name="FNanchor_437_437" id="FNanchor_437_437"></a><a href="#Footnote_437_437" class="fnanchor">[437]</a>, 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<span class="pagenum"><a name="Page_205" id="Page_205">205</a></span>
+than for them, and their grievances are represented in our
+documents rather less than fairly<a name="FNanchor_438_438" id="FNanchor_438_438"></a><a href="#Footnote_438_438" class="fnanchor">[438]</a>.</p>
+
+<div class="sidenote">Law of Kent.</div>
+
+<p>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<a name="FNanchor_439_439" id="FNanchor_439_439"></a><a href="#Footnote_439_439" class="fnanchor">[439]</a>, 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<a name="FNanchor_440_440" id="FNanchor_440_440"></a><a href="#Footnote_440_440" class="fnanchor">[440]</a>,
+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<span class="pagenum"><a name="Page_206" id="Page_206">206</a></span>
+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<a name="FNanchor_441_441" id="FNanchor_441_441"></a><a href="#Footnote_441_441" class="fnanchor">[441]</a>. 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<a name="FNanchor_442_442" id="FNanchor_442_442"></a><a href="#Footnote_442_442" class="fnanchor">[442]</a>.</p>
+
+<p>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,<span class="pagenum"><a name="Page_207" id="Page_207">207</a></span>
+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<a name="FNanchor_443_443" id="FNanchor_443_443"></a><a href="#Footnote_443_443" class="fnanchor">[443]</a>. 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 <i>gafol</i>, and as such stands in opposition
+to the usages of those who hold their land by fork
+and flail<a name="FNanchor_444_444" id="FNanchor_444_444"></a><a href="#Footnote_444_444" class="fnanchor">[444]</a>. 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&mdash;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.</p>
+
+<p>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<span class="pagenum"><a name="Page_208" id="Page_208">208</a></span>
+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 <i>custom of Kent</i> 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?</p>
+
+<div class="sidenote">Peasant freeholders.</div>
+
+<p>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&mdash;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<span class="pagenum"><a name="Page_209" id="Page_209">209</a></span>
+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<a name="FNanchor_445_445" id="FNanchor_445_445"></a><a href="#Footnote_445_445" class="fnanchor">[445]</a>. 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&mdash;the villains of Domesday
+are not the predecessors in title of later freeholders<a name="FNanchor_446_446" id="FNanchor_446_446"></a><a href="#Footnote_446_446" class="fnanchor">[446]</a>.
+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<span class="pagenum"><a name="Page_210" id="Page_210">210</a></span>
+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.</p>
+
+<hr class="chap" /><p><span class="pagenum"><a name="Page_211" id="Page_211">211</a></span></p>
+
+
+<h2><a name="CHAPTER_1_VII" id="CHAPTER_1_VII"></a>CHAPTER VII.</h2>
+
+<p class="center">THE PEASANTRY OF THE FEUDAL AGE. CONCLUSIONS.</p>
+
+
+<div class="sidenote">Legal and manorial records.</div>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_212" id="Page_212">212</a></span>
+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 <i>curial</i> (if I may use that term) and the
+<i>manorial</i> 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.</p>
+
+<div class="sidenote">The will of the lord and the custom of the manor.</div>
+
+<p>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<span class="pagenum"><a name="Page_213" id="Page_213">213</a></span>
+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<a name="FNanchor_447_447" id="FNanchor_447_447"></a><a href="#Footnote_447_447" class="fnanchor">[447]</a>; 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 <i>vice versa</i> 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.</p>
+
+<div class="sidenote">Movement towards free contract and money rents.</div>
+
+<p>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<a name="FNanchor_448_448" id="FNanchor_448_448"></a><a href="#Footnote_448_448" class="fnanchor">[448]</a>'
+of the extents correspond evidently to this fluctuating<span class="pagenum"><a name="Page_214" id="Page_214">214</a></span>
+population of rural workmen and squatters gathering
+behind the screen of recognised peasant holders.</p>
+
+<p>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.</p>
+
+<div class="sidenote">Emancipation.</div>
+
+<p>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<span class="pagenum"><a name="Page_215" id="Page_215">215</a></span>
+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.</p>
+
+<div class="sidenote">Contrast between labour and rent.</div>
+
+<p>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)&nbsp;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)&nbsp;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.</p>
+
+<p>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<span class="pagenum"><a name="Page_216" id="Page_216">216</a></span>
+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<a name="FNanchor_449_449" id="FNanchor_449_449"></a><a href="#Footnote_449_449" class="fnanchor">[449]</a>.</p>
+<p><span class="pagenum"><a name="Page_217" id="Page_217">217</a></span></p>
+<div class="sidenote">Personal subjection.</div>
+
+<p>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.</p>
+
+<div class="sidenote">Three tests of serfdom.</div>
+
+<p>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<span class="pagenum"><a name="Page_218" id="Page_218">218</a></span>
+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.</p>
+
+<div class="sidenote">History of free peasantry.</div>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_219" id="Page_219">219</a></span>
+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.</p>
+
+<p>On the whole, I think that an analysis of the legal and<span class="pagenum"><a name="Page_220" id="Page_220">220</a></span>
+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.'</p><hr class="chap" /><p><span class="pagenum"><a name="Page_221" id="Page_221"></a></span></p>
+
+
+
+
+<h2><a name="SECOND_ESSAY" id="SECOND_ESSAY"></a>SECOND ESSAY.</h2>
+
+<h2>THE MANOR
+AND THE VILLAGE COMMUNITY.</h2><hr class="chap" />
+<p><span class="pagenum"><a name="Page_222" id="Page_222"></a><br /><a name="Page_223" id="Page_223"></a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_2_I" id="CHAPTER_2_I"></a>CHAPTER I.</h2>
+
+<p class="center">THE OPEN FIELD SYSTEM AND THE HOLDINGS.</p>
+
+
+<div class="sidenote">Structure of the manor.</div>
+
+<p>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.</p>
+
+<p>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 <i>manor</i>, 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.</p>
+
+<p>The structure of the ordinary manor is always the same.
+Under the headship of the lord we find two layers of
+population&mdash;the villains and the freeholders; and the territory
+occupied divides itself accordingly into demesne land<span class="pagenum"><a name="Page_224" id="Page_224">224</a></span><a name="FNanchor_450_450" id="FNanchor_450_450"></a><a href="#Footnote_450_450" class="fnanchor">[450]</a>
+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 <i>holding of the peasant</i> 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 <i>in severalty</i> but used <i>in common</i>.
+The <i>agrarian obligations</i> with regard to the lord and the
+<i>cultivation of the demesne land</i> may be taken up afterwards.
+The position of <i>privileged people</i>, either servants or freeholders,
+must be discussed by itself, as an exceptional case.
+And, lastly, the question will have to be put&mdash;to what extent
+were all these elements welded together in the <i>village community</i>,
+and under the sway of the <i>manorial court</i>?</p>
+
+<div class="sidenote">Field systems.</div>
+
+<p>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<a name="FNanchor_451_451" id="FNanchor_451_451"></a><a href="#Footnote_451_451" class="fnanchor">[451]</a>; a two-field<span class="pagenum"><a name="Page_225" id="Page_225">225</a></span>
+system is also found very often<a name="FNanchor_452_452" id="FNanchor_452_452"></a><a href="#Footnote_452_452" class="fnanchor">[452]</a>; there are some
+instances of more complex arrangements<a name="FNanchor_453_453" id="FNanchor_453_453"></a><a href="#Footnote_453_453" class="fnanchor">[453]</a>, but they are
+very rare, and appear late&mdash;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<a name="FNanchor_454_454" id="FNanchor_454_454"></a><a href="#Footnote_454_454" class="fnanchor">[454]</a>.
+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<a name="FNanchor_455_455" id="FNanchor_455_455"></a><a href="#Footnote_455_455" class="fnanchor">[455]</a>. 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.</p>
+
+<p><span class="pagenum"><a name="Page_226" id="Page_226">226</a></span></p><div class="sidenote">Inhoke.</div>
+
+<p>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
+(<i>inhoc facere</i>). 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<a name="FNanchor_456_456" id="FNanchor_456_456"></a><a href="#Footnote_456_456" class="fnanchor">[456]</a>. The case is interesting in two
+respects: it shows the intimate connexion between the
+construction of the inclosure (<i>inhoc</i>) 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<span class="pagenum"><a name="Page_227" id="Page_227">227</a></span>
+for a crop of wheat, oats, or barley<a name="FNanchor_457_457" id="FNanchor_457_457"></a><a href="#Footnote_457_457" class="fnanchor">[457]</a>. The Gloucester
+Survey, in describing one of the manors belonging to the
+Abbey, arranges its land into four fields (<i>campi</i>), 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<a name="FNanchor_458_458" id="FNanchor_458_458"></a><a href="#Footnote_458_458" class="fnanchor">[458]</a>.
+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<a name="FNanchor_459_459" id="FNanchor_459_459"></a><a href="#Footnote_459_459" class="fnanchor">[459]</a>,<span class="pagenum"><a name="Page_228" id="Page_228">228</a></span>
+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.</p>
+
+<div class="sidenote">The 'Campus.'</div>
+
+<p>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' (<i>campus</i>) 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' (<i>campi</i>) 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 <i>campus</i> had to remain in fallow, and could
+be inclosed or taken under 'inhoc.' Had the <i>campus</i> as a
+whole been reserved for one of the three courses, there
+would have been room for the 'inhoc' only every three
+years.</p>
+
+<p>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&mdash;the manured plot under 'inhoc'&mdash;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<span class="pagenum"><a name="Page_229" id="Page_229">229</a></span>
+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' (<i>campus</i>) 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<a name="FNanchor_460_460" id="FNanchor_460_460"></a><a href="#Footnote_460_460" class="fnanchor">[460]</a>. The charter does not contain any description
+of <i>campi</i> 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&mdash;R.A.
+holds a virgate consisting of forty-two acres
+in both fields<a name="FNanchor_461_461" id="FNanchor_461_461"></a><a href="#Footnote_461_461" class="fnanchor">[461]</a>. 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<a name="FNanchor_462_462" id="FNanchor_462_462"></a><a href="#Footnote_462_462" class="fnanchor">[462]</a>. 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<span class="pagenum"><a name="Page_230" id="Page_230">230</a></span>
+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<a name="FNanchor_463_463" id="FNanchor_463_463"></a><a href="#Footnote_463_463" class="fnanchor">[463]</a>. 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.</p>
+
+<div class="sidenote">Compulsory rotation of crops.</div>
+
+<p>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<a name="FNanchor_464_464" id="FNanchor_464_464"></a><a href="#Footnote_464_464" class="fnanchor">[464]</a>. 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<a name="FNanchor_465_465" id="FNanchor_465_465"></a><a href="#Footnote_465_465" class="fnanchor">[465]</a>. The freeholders<span class="pagenum"><a name="Page_231" id="Page_231">231</a></span>
+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.</p>
+
+<div class="sidenote">Intermixture of strips.</div>
+
+<p>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 (<i>seliones</i>), mostly half an acre or a rood (quarter
+acre) in width; some of these strips get shortened, however
+(<i>seliones curtae</i>), or sharpened (<i>gorae</i>), according to the<span class="pagenum"><a name="Page_232" id="Page_232">232</a></span>
+shape of the country. At right angles with the strips in
+the fields lie the 'headlands' (<i>capitales</i>), which admit to
+other strips when there is no special road for the purpose<a name="FNanchor_466_466" id="FNanchor_466_466"></a><a href="#Footnote_466_466" class="fnanchor">[466]</a>.
+When the area under tillage abuts against some obstacles, as
+against a highway, a river, a neighbouring furlong, the strips
+are stunted (<i>buttae</i>). Every strip is separated from the next
+by <i>balks</i> on even ground, and <i>linches</i> 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<a name="FNanchor_467_467" id="FNanchor_467_467"></a><a href="#Footnote_467_467" class="fnanchor">[467]</a>. 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.</p>
+
+<p>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<a name="FNanchor_468_468" id="FNanchor_468_468"></a><a href="#Footnote_468_468" class="fnanchor">[468]</a>,
+and our surveys mention curious misunderstandings
+in this respect: it happens that as much as three<span class="pagenum"><a name="Page_233" id="Page_233">233</a></span>
+acres belonging to a particular person get mislaid somehow
+and cannot be identified<a name="FNanchor_469_469" id="FNanchor_469_469"></a><a href="#Footnote_469_469" class="fnanchor">[469]</a>. 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.</p>
+
+<div class="sidenote">Division of the land in Segheho.</div>
+
+<p>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<a name="FNanchor_470_470" id="FNanchor_470_470"></a><a href="#Footnote_470_470" class="fnanchor">[470]</a>. 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.<span class="pagenum"><a name="Page_234" id="Page_234">234</a></span>
+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.</p>
+
+<div class="sidenote">Intermixture produced by the wish to equalise the shares.</div>
+
+<p>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<span class="pagenum"><a name="Page_235" id="Page_235">235</a></span>
+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.</p>
+
+<div class="sidenote">Possible modes of dividing the land.</div>
+
+<p>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<span class="pagenum"><a name="Page_236" id="Page_236">236</a></span>
+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.</p>
+
+<div class="sidenote">Individual occupation of arable and communal rights.</div>
+
+<p>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<a name="FNanchor_471_471" id="FNanchor_471_471"></a><a href="#Footnote_471_471" class="fnanchor">[471]</a>. The<span class="pagenum"><a name="Page_237" id="Page_237">237</a></span>
+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<span class="pagenum"><a name="Page_238" id="Page_238">238</a></span>
+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.</p>
+
+<div class="sidenote">Arrangement of holdings.</div>
+
+<p>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<a name="FNanchor_472_472" id="FNanchor_472_472"></a><a href="#Footnote_472_472" class="fnanchor">[472]</a> 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<a name="FNanchor_473_473" id="FNanchor_473_473"></a><a href="#Footnote_473_473" class="fnanchor">[473]</a>. 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<a name="FNanchor_474_474" id="FNanchor_474_474"></a><a href="#Footnote_474_474" class="fnanchor">[474]</a>, of the
+Abbey of Eynsham, Oxfordshire<a name="FNanchor_475_475" id="FNanchor_475_475"></a><a href="#Footnote_475_475" class="fnanchor">[475]</a>, and many other places.</p>
+
+<p><span class="pagenum"><a name="Page_239" id="Page_239">239</a></span></p><p>The so-called Domesday of St. Paul's reports<a name="FNanchor_476_476" id="FNanchor_476_476"></a><a href="#Footnote_476_476" class="fnanchor">[476]</a>, 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<a name="FNanchor_477_477" id="FNanchor_477_477"></a><a href="#Footnote_477_477" class="fnanchor">[477]</a>. 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<a name="FNanchor_478_478" id="FNanchor_478_478"></a><a href="#Footnote_478_478" class="fnanchor">[478]</a>. 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<a name="FNanchor_479_479" id="FNanchor_479_479"></a><a href="#Footnote_479_479" class="fnanchor">[479]</a>. Bovates of<span class="pagenum"><a name="Page_240" id="Page_240">240</a></span>
+ten, twelve, and sixteen acres are to be found in the same
+locality<a name="FNanchor_480_480" id="FNanchor_480_480"></a><a href="#Footnote_480_480" class="fnanchor">[480]</a>. 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.</p>
+
+<div class="sidenote">The holdings not strictly equal in acreage.</div>
+
+<p>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<a name="FNanchor_481_481" id="FNanchor_481_481"></a><a href="#Footnote_481_481" class="fnanchor">[481]</a>. The
+Huntingdon Hundred Rolls mentions a locality where
+some of the half-virgates have got houses on their plots
+and some have not<a name="FNanchor_482_482" id="FNanchor_482_482"></a><a href="#Footnote_482_482" class="fnanchor">[482]</a>. 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<a name="FNanchor_483_483" id="FNanchor_483_483"></a><a href="#Footnote_483_483" class="fnanchor">[483]</a>.
+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<a name="FNanchor_484_484" id="FNanchor_484_484"></a><a href="#Footnote_484_484" class="fnanchor">[484]</a>.</p>
+
+<p>This last case makes it especially clear that the object<span class="pagenum"><a name="Page_241" id="Page_241">241</a></span>
+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.</p>
+
+<div class="sidenote">Acre ware.</div>
+
+<p>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<span class="pagenum"><a name="Page_242" id="Page_242">242</a></span>
+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 <i>de ware</i>; 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<a name="FNanchor_485_485" id="FNanchor_485_485"></a><a href="#Footnote_485_485" class="fnanchor">[485]</a>. The virgate <i>de ware</i> 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<a name="FNanchor_486_486" id="FNanchor_486_486"></a><a href="#Footnote_486_486" class="fnanchor">[486]</a>. Such 'acre ware' are to
+be found, though rarely, in other manors besides those of
+Ely minster<a name="FNanchor_487_487" id="FNanchor_487_487"></a><a href="#Footnote_487_487" class="fnanchor">[487]</a>. 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<a name="FNanchor_488_488" id="FNanchor_488_488"></a><a href="#Footnote_488_488" class="fnanchor">[488]</a>? 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<span class="pagenum"><a name="Page_243" id="Page_243">243</a></span>
+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.</p>
+
+<p>The conclusion we have come to is corroborated by the
+meaning of the word 'wara.' The etymological connexion
+with <i>warectum</i> 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
+<i>ad inwaram</i>, 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<a name="FNanchor_489_489" id="FNanchor_489_489"></a><a href="#Footnote_489_489" class="fnanchor">[489]</a>. 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&mdash;'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<a name="FNanchor_490_490" id="FNanchor_490_490"></a><a href="#Footnote_490_490" class="fnanchor">[490]</a>, and for the weir,
+which prevents the fish from escaping into the river<a name="FNanchor_491_491" id="FNanchor_491_491"></a><a href="#Footnote_491_491" class="fnanchor">[491]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_244" id="Page_244">244</a></span></p><div class="sidenote">Hides of assessment.</div>
+
+<p>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.</p>
+
+<p>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<a name="FNanchor_492_492" id="FNanchor_492_492"></a><a href="#Footnote_492_492" class="fnanchor">[492]</a>. The Ramsey Cartulary tells<span class="pagenum"><a name="Page_245" id="Page_245">245</a></span>
+us that the land in Hulme was not divided into hides and
+virgates<a name="FNanchor_493_493" id="FNanchor_493_493"></a><a href="#Footnote_493_493" class="fnanchor">[493]</a>. 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<a name="FNanchor_494_494" id="FNanchor_494_494"></a><a href="#Footnote_494_494" class="fnanchor">[494]</a>.' 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<a name="FNanchor_495_495" id="FNanchor_495_495"></a><a href="#Footnote_495_495" class="fnanchor">[495]</a>.</p>
+
+<p>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 <i>acreware</i><a name="FNanchor_496_496" id="FNanchor_496_496"></a><a href="#Footnote_496_496" class="fnanchor">[496]</a> 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<span class="pagenum"><a name="Page_246" id="Page_246">246</a></span>
+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.</p>
+
+<div class="sidenote">Rules of inheritance.</div>
+
+<p>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<a name="FNanchor_497_497" id="FNanchor_497_497"></a><a href="#Footnote_497_497" class="fnanchor">[497]</a>.
+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;<span class="pagenum"><a name="Page_247" id="Page_247">247</a></span>
+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<a name="FNanchor_498_498" id="FNanchor_498_498"></a><a href="#Footnote_498_498" class="fnanchor">[498]</a>. The unity of the holding
+was not disturbed in the case; there was no division, and
+only the right heir, the &#7953;&#963;&#964;&#953;&#959;&#960;&#8049;&#956;&#969;&#957; 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.</p>
+
+<div class="sidenote">Kentish system.</div>
+
+<p>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
+<i>sulung</i>, that is, on the Kentish ploughland corresponding
+to the hide of feudal England. No regular sub-divisions<span class="pagenum"><a name="Page_248" id="Page_248">248</a></span>
+corresponding to the virgates and bovates are
+mentioned, and the reckoning starts not from separate
+tenements, but from their combination into sulungs<a name="FNanchor_499_499" id="FNanchor_499_499"></a><a href="#Footnote_499_499" class="fnanchor">[499]</a>.
+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<a name="FNanchor_500_500" id="FNanchor_500_500"></a><a href="#Footnote_500_500" class="fnanchor">[500]</a>. 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 (<i>juga</i>)<a name="FNanchor_501_501" id="FNanchor_501_501"></a><a href="#Footnote_501_501" class="fnanchor">[501]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_249" id="Page_249">249</a></span></p><p>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?</p>
+
+<div class="sidenote">Connecting links between the two systems.</div>
+
+<p>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&mdash;the
+description of the Essex manors of Kirby, Horlock, and
+Thorpe&mdash;does not differ from the Kentish surveys in
+anything but the terminology<a name="FNanchor_502_502" id="FNanchor_502_502"></a><a href="#Footnote_502_502" class="fnanchor">[502]</a>. 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.</p>
+
+<p>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<a name="FNanchor_503_503" id="FNanchor_503_503"></a><a href="#Footnote_503_503" class="fnanchor">[503]</a>. The<span class="pagenum"><a name="Page_250" id="Page_250">250</a></span>
+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<a name="FNanchor_504_504" id="FNanchor_504_504"></a><a href="#Footnote_504_504" class="fnanchor">[504]</a>. Indications are not wanting that sometimes
+virgates crumbled up into cotlands, bordlands, and crofts.
+The denomination of some peasants in Northumberland
+is characteristic enough&mdash;they are 'selfoders,' obviously
+dwelling 'self-other' on their tenements<a name="FNanchor_505_505" id="FNanchor_505_505"></a><a href="#Footnote_505_505" class="fnanchor">[505]</a>. 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.</p>
+
+<div class="sidenote">United and partible holdings.</div>
+
+<p>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<a name="FNanchor_506_506" id="FNanchor_506_506"></a><a href="#Footnote_506_506" class="fnanchor">[506]</a>. The English case has its parallel on the Continent
+in this respect. In Alsace, for instance, the holding<span class="pagenum"><a name="Page_251" id="Page_251">251</a></span>
+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<a name="FNanchor_507_507" id="FNanchor_507_507"></a><a href="#Footnote_507_507" class="fnanchor">[507]</a>. 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<span class="pagenum"><a name="Page_252" id="Page_252">252</a></span>
+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.</p>
+
+<div class="sidenote">The holding and the team.</div>
+
+<p>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<a name="FNanchor_508_508" id="FNanchor_508_508"></a><a href="#Footnote_508_508" class="fnanchor">[508]</a>. The dependent
+people, when they have to help in the cultivation of the
+demesne, club together in order to make up full plough
+teams<a name="FNanchor_509_509" id="FNanchor_509_509"></a><a href="#Footnote_509_509" class="fnanchor">[509]</a>. It is also obvious that the peasantry had to associate<span class="pagenum"><a name="Page_253" id="Page_253">253</a></span>
+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<a name="FNanchor_510_510" id="FNanchor_510_510"></a><a href="#Footnote_510_510" class="fnanchor">[510]</a>. 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<a name="FNanchor_511_511" id="FNanchor_511_511"></a><a href="#Footnote_511_511" class="fnanchor">[511]</a>. 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<a name="FNanchor_512_512" id="FNanchor_512_512"></a><a href="#Footnote_512_512" class="fnanchor">[512]</a>. 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&mdash;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<span class="pagenum"><a name="Page_254" id="Page_254">254</a></span>
+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.</p>
+
+<div class="sidenote">Terms of exceptional occurrence.</div>
+
+<p>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<span class="pagenum"><a name="Page_255" id="Page_255">255</a></span>
+the usual hides and virgates<a name="FNanchor_513_513" id="FNanchor_513_513"></a><a href="#Footnote_513_513" class="fnanchor">[513]</a>. Of the <i>sulung</i> 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<a name="FNanchor_514_514" id="FNanchor_514_514"></a><a href="#Footnote_514_514" class="fnanchor">[514]</a>.' The most probable explanation
+seems to be that the hide or unit of assessment is
+contrasted with the <i>solanda</i> or <i>sulland</i> (sulung), that is
+with the actual ploughland, and two hides are reckoned as
+a single solanda.</p>
+
+<p>The yokes (juga) of Battle Abbey<a name="FNanchor_515_515" id="FNanchor_515_515"></a><a href="#Footnote_515_515" class="fnanchor">[515]</a> 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 <i>tenmanlands</i><a name="FNanchor_516_516" id="FNanchor_516_516"></a><a href="#Footnote_516_516" class="fnanchor">[516]</a> of 120 acres
+in the possession of several copartitioners, <i>participes</i>. 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 <i>wista</i><a name="FNanchor_517_517" id="FNanchor_517_517"></a><a href="#Footnote_517_517" class="fnanchor">[517]</a>; it corresponds to the
+virgate: a great wista is as much as half-a-hide, or two
+virgates<a name="FNanchor_518_518" id="FNanchor_518_518"></a><a href="#Footnote_518_518" class="fnanchor">[518]</a>.</p>
+
+<p>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<span class="pagenum"><a name="Page_256" id="Page_256">256</a></span>
+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 <i>ferdel</i>, or fourth part of a virgate, is usually
+mentioned among them because there are no plough-beasts
+on it<a name="FNanchor_519_519" id="FNanchor_519_519"></a><a href="#Footnote_519_519" class="fnanchor">[519]</a>. Another name for the <i>ferdel</i> is <i>nook</i><a name="FNanchor_520_520" id="FNanchor_520_520"></a><a href="#Footnote_520_520" class="fnanchor">[520]</a>. Next
+come the crofters, whose gardens sometimes extend to a
+very fair size&mdash;as much as ten acres in one enclosed
+patch<a name="FNanchor_521_521" id="FNanchor_521_521"></a><a href="#Footnote_521_521" class="fnanchor">[521]</a>. 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<a name="FNanchor_522_522" id="FNanchor_522_522"></a><a href="#Footnote_522_522" class="fnanchor">[522]</a>,' '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<a name="FNanchor_523_523" id="FNanchor_523_523"></a><a href="#Footnote_523_523" class="fnanchor">[523]</a>. 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<a name="FNanchor_524_524" id="FNanchor_524_524"></a><a href="#Footnote_524_524" class="fnanchor">[524]</a>. The <i>bordae</i> mentioned by the documents
+are simply cottages or booths without any land
+belonging to them<a name="FNanchor_525_525" id="FNanchor_525_525"></a><a href="#Footnote_525_525" class="fnanchor">[525]</a>. The manorial police keeps a look-out<span class="pagenum"><a name="Page_257" id="Page_257">257</a></span>
+that such houses may not arise without licence and
+service<a name="FNanchor_526_526" id="FNanchor_526_526"></a><a href="#Footnote_526_526" class="fnanchor">[526]</a>.</p>
+
+<p>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<a name="FNanchor_527_527" id="FNanchor_527_527"></a><a href="#Footnote_527_527" class="fnanchor">[527]</a>. Those
+tenements which are singled out for the special duty of
+carrying the proceeds of the manorial cultivation get the
+name of <i>averlands</i><a name="FNanchor_528_528" id="FNanchor_528_528"></a><a href="#Footnote_528_528" class="fnanchor">[528]</a>. The terms <i>lodland</i><a name="FNanchor_529_529" id="FNanchor_529_529"></a><a href="#Footnote_529_529" class="fnanchor">[529]</a>, <i>serland</i><a name="FNanchor_530_530" id="FNanchor_530_530"></a><a href="#Footnote_530_530" class="fnanchor">[530]</a> or
+<i>sharland</i>, 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 <i>akermanland</i><a name="FNanchor_531_531" id="FNanchor_531_531"></a><a href="#Footnote_531_531" class="fnanchor">[531]</a>. Sometimes, though rarely,
+the holding gets its name from the money rent it has to
+pay. We hear of <i>denerates</i><a name="FNanchor_532_532" id="FNanchor_532_532"></a><a href="#Footnote_532_532" class="fnanchor">[532]</a> and <i>nummates</i><a name="FNanchor_533_533" id="FNanchor_533_533"></a><a href="#Footnote_533_533" class="fnanchor">[533]</a> of land in
+this connexion.</p>
+
+<div class="sidenote">Conclusions.</div>
+
+<p>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:&mdash;</p>
+
+<p>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<span class="pagenum"><a name="Page_258" id="Page_258">258</a></span>
+inequality according to certain degrees, but it aimed at
+putting all the people of one degree into approximately
+similar conditions.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+<hr class="chap" /><p><span class="pagenum"><a name="Page_259" id="Page_259">259</a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_2_II" id="CHAPTER_2_II"></a>CHAPTER II.</h2>
+
+<p class="center">RIGHTS OF COMMON.</p>
+
+
+<div class="sidenote">Meadows.</div>
+
+<p>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<a name="FNanchor_534_534" id="FNanchor_534_534"></a><a href="#Footnote_534_534" class="fnanchor">[534]</a>.
+The tenants divide the rest according to some settled
+rotation. Very often lots are drawn to indicate the portions<span class="pagenum"><a name="Page_260" id="Page_260">260</a></span>
+of the several households<a name="FNanchor_535_535" id="FNanchor_535_535"></a><a href="#Footnote_535_535" class="fnanchor">[535]</a>. 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 <i>minimum</i> 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.</p>
+
+<div class="sidenote">Allotment of pasture.</div>
+
+<p>Land for pasture also occurs in private hands and in
+severalty, but such cases are much rarer<a name="FNanchor_536_536" id="FNanchor_536_536"></a><a href="#Footnote_536_536" class="fnanchor">[536]</a>. Sometimes<span class="pagenum"><a name="Page_261" id="Page_261">261</a></span>
+the pasture gets separated and put under 'defence' for one
+part of the year, and merges into communal ownership
+afterwards<a name="FNanchor_537_537" id="FNanchor_537_537"></a><a href="#Footnote_537_537" class="fnanchor">[537]</a>. 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<a name="FNanchor_538_538" id="FNanchor_538_538"></a><a href="#Footnote_538_538" class="fnanchor">[538]</a>. 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<span class="pagenum"><a name="Page_262" id="Page_262">262</a></span>
+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<a name="FNanchor_539_539" id="FNanchor_539_539"></a><a href="#Footnote_539_539" class="fnanchor">[539]</a>. According to a common rule the
+only cattle allowed to use the village pasture was that
+which was constantly kept in the village, <i>levant e couchant
+en le maner</i>. 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<a name="FNanchor_540_540" id="FNanchor_540_540"></a><a href="#Footnote_540_540" class="fnanchor">[540]</a>.</p>
+
+<div class="sidenote">Pasture an adjunct to holding.</div>
+
+<p>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<span class="pagenum"><a name="Page_263" id="Page_263">263</a></span>
+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<a name="FNanchor_541_541" id="FNanchor_541_541"></a><a href="#Footnote_541_541" class="fnanchor">[541]</a>. And for this
+reason the laxer right had to conform to the stricter one,
+and came to be considered as appendant to it.</p>
+
+<div class="sidenote">Common in special cases.</div>
+
+<p>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<span class="pagenum"><a name="Page_264" id="Page_264">264</a></span>
+stranger<a name="FNanchor_542_542" id="FNanchor_542_542"></a><a href="#Footnote_542_542" class="fnanchor">[542]</a>; it may also proceed from continuous use from
+time beyond legal memory<a name="FNanchor_543_543" id="FNanchor_543_543"></a><a href="#Footnote_543_543" class="fnanchor">[543]</a>: 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<a name="FNanchor_544_544" id="FNanchor_544_544"></a><a href="#Footnote_544_544" class="fnanchor">[544]</a>. 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<a name="FNanchor_545_545" id="FNanchor_545_545"></a><a href="#Footnote_545_545" class="fnanchor">[545]</a>. Neighbours deem it often
+advantageous to establish a certain reciprocity in this
+respect<a name="FNanchor_546_546" id="FNanchor_546_546"></a><a href="#Footnote_546_546" class="fnanchor">[546]</a>. By special agreement or by tacit allowance<span class="pagenum"><a name="Page_265" id="Page_265">265</a></span>
+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<a name="FNanchor_547_547" id="FNanchor_547_547"></a><a href="#Footnote_547_547" class="fnanchor">[547]</a>. 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<a name="FNanchor_548_548" id="FNanchor_548_548"></a><a href="#Footnote_548_548" class="fnanchor">[548]</a>.</p>
+
+<p>These different modes of treating the pasture present
+rather an incongruous medley, and may be classified in
+several ways and deduced from divers sources.</p>
+
+<div class="sidenote">Modern classification of commons.</div>
+
+<p>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<span class="pagenum"><a name="Page_266" id="Page_266">266</a></span>
+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<a name="FNanchor_549_549" id="FNanchor_549_549"></a><a href="#Footnote_549_549" class="fnanchor">[549]</a>.' 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<a name="FNanchor_550_550" id="FNanchor_550_550"></a><a href="#Footnote_550_550" class="fnanchor">[550]</a>, 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<span class="pagenum"><a name="Page_267" id="Page_267">267</a></span>
+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.</p>
+
+<p>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<span class="pagenum"><a name="Page_268" id="Page_268">268</a></span>
+and secondary features, are capriciously brought
+together.</p>
+
+<p>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.</p>
+
+<div class="sidenote">Foundations of later classification in early law.</div>
+
+<p>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 <i>especialté</i> or special grant or title, he must
+show "fraunc tenement en la ville a ques commune est
+appendant." Thus we have the question:&mdash;"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<span class="pagenum"><a name="Page_269" id="Page_269">269</a></span>
+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.</p>
+
+<div class="sidenote">Bracton's doctrine.</div>
+
+<p>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 <i>a priori</i> 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<a name="FNanchor_551_551" id="FNanchor_551_551"></a><a href="#Footnote_551_551" class="fnanchor">[551]</a>. What is more,
+it cannot belong to a tenement reclaimed from the<span class="pagenum"><a name="Page_270" id="Page_270">270</a></span>
+waste<a name="FNanchor_552_552" id="FNanchor_552_552"></a><a href="#Footnote_552_552" class="fnanchor">[552]</a>, 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<a name="FNanchor_553_553" id="FNanchor_553_553"></a><a href="#Footnote_553_553" class="fnanchor">[553]</a> 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<a name="FNanchor_554_554" id="FNanchor_554_554"></a><a href="#Footnote_554_554" class="fnanchor">[554]</a>,'
+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<span class="pagenum"><a name="Page_271" id="Page_271">271</a></span>
+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<a name="FNanchor_555_555" id="FNanchor_555_555"></a><a href="#Footnote_555_555" class="fnanchor">[555]</a>.' 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.</p>
+
+<div class="sidenote">Restrictions on the lord as to common pasture.</div>
+
+<p>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<span class="pagenum"><a name="Page_272" id="Page_272">272</a></span>
+owner of the waste<a name="FNanchor_556_556" id="FNanchor_556_556"></a><a href="#Footnote_556_556" class="fnanchor">[556]</a>, 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<a name="FNanchor_557_557" id="FNanchor_557_557"></a><a href="#Footnote_557_557" class="fnanchor">[557]</a>. 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<a name="FNanchor_558_558" id="FNanchor_558_558"></a><a href="#Footnote_558_558" class="fnanchor">[558]</a>. 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<a name="FNanchor_559_559" id="FNanchor_559_559"></a><a href="#Footnote_559_559" class="fnanchor">[559]</a>. 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.</p>
+
+<div class="sidenote">Approvement.</div>
+
+<p>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<span class="pagenum"><a name="Page_273" id="Page_273">273</a></span>
+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<a name="FNanchor_560_560" id="FNanchor_560_560"></a><a href="#Footnote_560_560" class="fnanchor">[560]</a>. 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<span class="pagenum"><a name="Page_274" id="Page_274">274</a></span>
+the plaintiff had common, this latter has still sufficient
+pasture left to him. And thereupon the plaintiff withdraws<a name="FNanchor_561_561" id="FNanchor_561_561"></a><a href="#Footnote_561_561" class="fnanchor">[561]</a>.
+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<a name="FNanchor_562_562" id="FNanchor_562_562"></a><a href="#Footnote_562_562" class="fnanchor">[562]</a>. 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<a name="FNanchor_563_563" id="FNanchor_563_563"></a><a href="#Footnote_563_563" class="fnanchor">[563]</a>. 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<a name="FNanchor_564_564" id="FNanchor_564_564"></a><a href="#Footnote_564_564" class="fnanchor">[564]</a>, 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<span class="pagenum"><a name="Page_275" id="Page_275">275</a></span>
+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<a name="FNanchor_565_565" id="FNanchor_565_565"></a><a href="#Footnote_565_565" class="fnanchor">[565]</a>.
+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.</p>
+
+<div class="sidenote">Rights of common in woods, etc.</div>
+
+<p>Besides the land regularly used for pasture, the cattle of
+the village were sent grazing along the roads<a name="FNanchor_566_566" id="FNanchor_566_566"></a><a href="#Footnote_566_566" class="fnanchor">[566]</a> and in the<span class="pagenum"><a name="Page_276" id="Page_276">276</a></span>
+woods<a name="FNanchor_567_567" id="FNanchor_567_567"></a><a href="#Footnote_567_567" class="fnanchor">[567]</a>. 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<a name="FNanchor_568_568" id="FNanchor_568_568"></a><a href="#Footnote_568_568" class="fnanchor">[568]</a>. 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<a name="FNanchor_569_569" id="FNanchor_569_569"></a><a href="#Footnote_569_569" class="fnanchor">[569]</a>. Whenever the right had
+to be apportioned more or less strictly, the size of the
+holdings was always the main consideration<a name="FNanchor_570_570" id="FNanchor_570_570"></a><a href="#Footnote_570_570" class="fnanchor">[570]</a>.</p>
+
+<p>It would be strange to my purpose to discuss the details
+of common of estovers, of turbary<a name="FNanchor_571_571" id="FNanchor_571_571"></a><a href="#Footnote_571_571" class="fnanchor">[571]</a>, 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:&mdash;</p>
+
+<p>1. Rights of common are either a consequence of the<span class="pagenum"><a name="Page_277" id="Page_277">277</a></span>
+communal husbandry of the manor, or else they proceed
+from special agreement or long use.</p>
+
+<p>2. The legal arrangement of commons depends on a
+customary arrangement, in which free and unfree tenants
+take equal part<a name="FNanchor_572_572" id="FNanchor_572_572"></a><a href="#Footnote_572_572" class="fnanchor">[572]</a>.</p>
+
+<p>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.</p>
+<hr class="chap" /><p><span class="pagenum"><a name="Page_278" id="Page_278">278</a></span></p>
+
+
+
+<h2><a name="CHAPTER_2_III" id="CHAPTER_2_III"></a>CHAPTER III.</h2>
+
+<p class="center">RURAL WORK AND RENTS.</p>
+
+
+<div class="sidenote">Arrangement of work and rent.</div>
+
+<p>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.</p>
+
+<div class="sidenote">Operations:</div><div class="sidenote">Ploughing.</div>
+
+<p>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<a name="FNanchor_573_573" id="FNanchor_573_573"></a><a href="#Footnote_573_573" class="fnanchor">[573]</a>.' The duties<span class="pagenum"><a name="Page_279" id="Page_279">279</a></span>
+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<a name="FNanchor_574_574" id="FNanchor_574_574"></a><a href="#Footnote_574_574" class="fnanchor">[574]</a>. 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<a name="FNanchor_575_575" id="FNanchor_575_575"></a><a href="#Footnote_575_575" class="fnanchor">[575]</a>. 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<a name="FNanchor_576_576" id="FNanchor_576_576"></a><a href="#Footnote_576_576" class="fnanchor">[576]</a>. 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<a name="FNanchor_577_577" id="FNanchor_577_577"></a><a href="#Footnote_577_577" class="fnanchor">[577]</a>. 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<a name="FNanchor_578_578" id="FNanchor_578_578"></a><a href="#Footnote_578_578" class="fnanchor">[578]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_280" id="Page_280">280</a></span></p><p>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<a name="FNanchor_579_579" id="FNanchor_579_579"></a><a href="#Footnote_579_579" class="fnanchor">[579]</a>, or the lord might lose them if
+the time assigned for them was quite unsuitable for work<a name="FNanchor_580_580" id="FNanchor_580_580"></a><a href="#Footnote_580_580" class="fnanchor">[580]</a>.
+There is another form of ploughing called <i>gafol-earth</i>,
+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<a name="FNanchor_581_581" id="FNanchor_581_581"></a><a href="#Footnote_581_581" class="fnanchor">[581]</a>.</p>
+
+<p>A third species of ploughing-duty is the so-called <i>aver-earth</i>
+or <i>grass-earth</i>. 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<a name="FNanchor_582_582" id="FNanchor_582_582"></a><a href="#Footnote_582_582" class="fnanchor">[582]</a>. Sometimes the<span class="pagenum"><a name="Page_281" id="Page_281">281</a></span>
+same imposition is levied when more cattle are sent to the
+commons than a holding has a right to drive on them<a name="FNanchor_583_583" id="FNanchor_583_583"></a><a href="#Footnote_583_583" class="fnanchor">[583]</a>.
+It is not impossible that in some cases the very use of
+rights of common was made dependent on the performance
+of such duties<a name="FNanchor_584_584" id="FNanchor_584_584"></a><a href="#Footnote_584_584" class="fnanchor">[584]</a>. A kindred exaction was imposed
+for the use of the meadows<a name="FNanchor_585_585" id="FNanchor_585_585"></a><a href="#Footnote_585_585" class="fnanchor">[585]</a>. 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.</p>
+
+<p>Manorial records mention a fourth variety of ploughing-work
+under the name of <i>ben-earth</i>, <i>precariae carucarum</i>.
+This is extra work in opposition to the common ploughings
+described before<a name="FNanchor_586_586" id="FNanchor_586_586"></a><a href="#Footnote_586_586" class="fnanchor">[586]</a>. 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<span class="pagenum"><a name="Page_282" id="Page_282">282</a></span>
+and asked-work, we find much rougher terms in the speech
+of some districts&mdash;it is deemed <i>unlawenearth</i> and <i>godlesebene</i><a name="FNanchor_587_587" id="FNanchor_587_587"></a><a href="#Footnote_587_587" class="fnanchor">[587]</a>.
+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.</p>
+
+<p>Other expressions occur in certain localities, which are
+sometimes difficult of explanation. <i>Lentenearth</i><a name="FNanchor_588_588" id="FNanchor_588_588"></a><a href="#Footnote_588_588" class="fnanchor">[588]</a>, in the
+manors of Ely Minster, means evidently an extra ploughing
+in Lent. The same Ely records exhibit a ploughing
+called <i>Filstnerthe</i> or <i>Filsingerthe</i><a name="FNanchor_589_589" id="FNanchor_589_589"></a><a href="#Footnote_589_589" class="fnanchor">[589]</a>, which may be identical
+with the Lentenearth just mentioned: a <i>fastnyngseed</i><a name="FNanchor_590_590" id="FNanchor_590_590"></a><a href="#Footnote_590_590" class="fnanchor">[590]</a>
+occurs at any rate which seems connected with the ploughing
+under discussion. The same extra work in Lent is
+called <i>Tywe</i><a name="FNanchor_591_591" id="FNanchor_591_591"></a><a href="#Footnote_591_591" class="fnanchor">[591]</a> in the Custumal of Bleadon, Somersetshire.
+When the ploughing-work is paid for it may receive the
+name of <i>penyearth</i><a name="FNanchor_592_592" id="FNanchor_592_592"></a><a href="#Footnote_592_592" class="fnanchor">[592]</a>. The Gloucester survey speaks of the
+extra cultivation of an acre called Radacre, and the Ely
+surveys of an extra rood 'de Rytnesse<a name="FNanchor_593_593" id="FNanchor_593_593"></a><a href="#Footnote_593_593" class="fnanchor">[593]</a>.' I do not venture
+to suggest an explanation for these last terms; and<span class="pagenum"><a name="Page_283" id="Page_283">283</a></span>
+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.</p>
+
+<div class="sidenote">Reaping.</div>
+
+<p>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 (<i>mederipe</i>) 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<a name="FNanchor_594_594" id="FNanchor_594_594"></a><a href="#Footnote_594_594" class="fnanchor">[594]</a>. As to the corn-harvest, every holding has
+its number of acres assigned to it<a name="FNanchor_595_595" id="FNanchor_595_595"></a><a href="#Footnote_595_595" class="fnanchor">[595]</a>, or else it is enacted that
+every house has to send so many workmen during a certain
+number of days<a name="FNanchor_596_596" id="FNanchor_596_596"></a><a href="#Footnote_596_596" class="fnanchor">[596]</a>. 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.</p>
+
+<p>Harvest-time is the most pressing time in the year for
+rural work; it is especially important not to lose the<span class="pagenum"><a name="Page_284" id="Page_284">284</a></span>
+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 <i>precariae</i> is even more developed
+on these occasions than in the case of ploughing<a name="FNanchor_597_597" id="FNanchor_597_597"></a><a href="#Footnote_597_597" class="fnanchor">[597]</a>. All
+the forces of the village are strained to go through the
+task; all the houses which open on the street send their
+labourers<a name="FNanchor_598_598" id="FNanchor_598_598"></a><a href="#Footnote_598_598" class="fnanchor">[598]</a>, 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<a name="FNanchor_599_599" id="FNanchor_599_599"></a><a href="#Footnote_599_599" class="fnanchor">[599]</a>. The landlord
+treats the harvesters to food in order to make these
+exertions somewhat more palatable to them<a name="FNanchor_600_600" id="FNanchor_600_600"></a><a href="#Footnote_600_600" class="fnanchor">[600]</a>. 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 (<i>precariae
+cerevisiae</i>). The mutual obligations of lords and tenantry
+are settled very minutely<a name="FNanchor_601_601" id="FNanchor_601_601"></a><a href="#Footnote_601_601" class="fnanchor">[601]</a>; the latter may have to mow<span class="pagenum"><a name="Page_285" id="Page_285">285</a></span>
+a particular acre with the object of saying 'thanks' for
+some concession on the part of the lord<a name="FNanchor_602_602" id="FNanchor_602_602"></a><a href="#Footnote_602_602" class="fnanchor">[602]</a>. 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<a name="FNanchor_603_603" id="FNanchor_603_603"></a><a href="#Footnote_603_603" class="fnanchor">[603]</a>. On the
+other hand, a poor woman holds a messuage, and need do
+no more than carry water to the mowers<a name="FNanchor_604_604" id="FNanchor_604_604"></a><a href="#Footnote_604_604" class="fnanchor">[604]</a>.</p>
+
+<div class="sidenote">Carriage duties.</div>
+
+<p>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<a name="FNanchor_605_605" id="FNanchor_605_605"></a><a href="#Footnote_605_605" class="fnanchor">[605]</a>. These <i>averagia</i> are laid out for short and<span class="pagenum"><a name="Page_286" id="Page_286">286</a></span>
+long distances, and the peasants have to take their turn
+at them one after the other<a name="FNanchor_606_606" id="FNanchor_606_606"></a><a href="#Footnote_606_606" class="fnanchor">[606]</a>. They were bound to carry
+corn to London or Bristol according to the size of their
+holdings<a name="FNanchor_607_607" id="FNanchor_607_607"></a><a href="#Footnote_607_607" class="fnanchor">[607]</a>. Special importance was attached to the carriage
+of the 'farm,' that is of the products designed for
+the consumption of the lord<a name="FNanchor_608_608" id="FNanchor_608_608"></a><a href="#Footnote_608_608" class="fnanchor">[608]</a>. 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<a name="FNanchor_609_609" id="FNanchor_609_609"></a><a href="#Footnote_609_609" class="fnanchor">[609]</a>. 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<a name="FNanchor_610_610" id="FNanchor_610_610"></a><a href="#Footnote_610_610" class="fnanchor">[610]</a>. 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<a name="FNanchor_611_611" id="FNanchor_611_611"></a><a href="#Footnote_611_611" class="fnanchor">[611]</a>. Such small people are also made to
+drive the swine or geese to the market<a name="FNanchor_612_612" id="FNanchor_612_612"></a><a href="#Footnote_612_612" class="fnanchor">[612]</a>. The lord and
+his chief stewards must look sharp after the distribution<span class="pagenum"><a name="Page_287" id="Page_287">287</a></span>
+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<a name="FNanchor_613_613" id="FNanchor_613_613"></a><a href="#Footnote_613_613" class="fnanchor">[613]</a>.</p>
+
+<p>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<a name="FNanchor_614_614" id="FNanchor_614_614"></a><a href="#Footnote_614_614" class="fnanchor">[614]</a>, 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<a name="FNanchor_615_615" id="FNanchor_615_615"></a><a href="#Footnote_615_615" class="fnanchor">[615]</a>. 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<a name="FNanchor_616_616" id="FNanchor_616_616"></a><a href="#Footnote_616_616" class="fnanchor">[616]</a>. 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<a name="FNanchor_617_617" id="FNanchor_617_617"></a><a href="#Footnote_617_617" class="fnanchor">[617]</a>.</p>
+
+<div class="sidenote">Classification of labour-services.</div>
+
+<p>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 <i>araturae</i>, <i>averagia</i>, and <i>manuoperationes</i>. These last<span class="pagenum"><a name="Page_288" id="Page_288">288</a></span>
+are also called <i>hand-dainae</i> or <i>daywerke</i><a name="FNanchor_618_618" id="FNanchor_618_618"></a><a href="#Footnote_618_618" class="fnanchor">[618]</a>; 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<a name="FNanchor_619_619" id="FNanchor_619_619"></a><a href="#Footnote_619_619" class="fnanchor">[619]</a>,
+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.</p>
+
+<div class="sidenote">Payments in kind.</div>
+
+<p>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&mdash;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 <i>gavelseed</i>, in addition to the money-rent paid
+for their land<a name="FNanchor_620_620" id="FNanchor_620_620"></a><a href="#Footnote_620_620" class="fnanchor">[620]</a>; as <i>foddercorn</i>, of oats for the feeding of<span class="pagenum"><a name="Page_289" id="Page_289">289</a></span>
+horses<a name="FNanchor_621_621" id="FNanchor_621_621"></a><a href="#Footnote_621_621" class="fnanchor">[621]</a>; as <i>gathercorn</i>, which a manorial servant has to
+collect or gather from the several homesteads<a name="FNanchor_622_622" id="FNanchor_622_622"></a><a href="#Footnote_622_622" class="fnanchor">[622]</a>; as <i>corn-bole</i>,
+a best sheaf levied at harvest-time<a name="FNanchor_623_623" id="FNanchor_623_623"></a><a href="#Footnote_623_623" class="fnanchor">[623]</a>. Of other provender
+supplied to the lord's household honey is the most
+common, both in combs and in a liquid form<a name="FNanchor_624_624" id="FNanchor_624_624"></a><a href="#Footnote_624_624" class="fnanchor">[624]</a>. Ale is
+sometimes brewed for the same purpose, and sometimes
+malt and <i>braseum</i> furnished as material to be used in the
+manorial farm<a name="FNanchor_625_625" id="FNanchor_625_625"></a><a href="#Footnote_625_625" class="fnanchor">[625]</a>. 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<a name="FNanchor_626_626" id="FNanchor_626_626"></a><a href="#Footnote_626_626" class="fnanchor">[626]</a>. If no suitable lamb is to be
+found, eight pence are paid instead of it as mail (<i>mala</i>).
+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<i>d.</i>, and besides, 12 pence in money are to be
+hung in a purse on the animal's neck<a name="FNanchor_627_627" id="FNanchor_627_627"></a><a href="#Footnote_627_627" class="fnanchor">[627]</a>. Poultry is brought<span class="pagenum"><a name="Page_290" id="Page_290">290</a></span>
+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<a name="FNanchor_628_628" id="FNanchor_628_628"></a><a href="#Footnote_628_628" class="fnanchor">[628]</a>: 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<a name="FNanchor_629_629" id="FNanchor_629_629"></a><a href="#Footnote_629_629" class="fnanchor">[629]</a>. 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<a name="FNanchor_630_630" id="FNanchor_630_630"></a><a href="#Footnote_630_630" class="fnanchor">[630]</a>.
+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<a name="FNanchor_631_631" id="FNanchor_631_631"></a><a href="#Footnote_631_631" class="fnanchor">[631]</a>. 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<a name="FNanchor_632_632" id="FNanchor_632_632"></a><a href="#Footnote_632_632" class="fnanchor">[632]</a>.
+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<span class="pagenum"><a name="Page_291" id="Page_291">291</a></span>
+material in Hazlitt's 'Tenures of Land and Customs
+of Manors.'</p>
+
+<div class="sidenote">Money-payments.</div>
+
+<p>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<a name="FNanchor_633_633" id="FNanchor_633_633"></a><a href="#Footnote_633_633" class="fnanchor">[633]</a>, etc. The
+same may be the case in regard to produce: <i>barlick-silver</i>
+is paid instead of barley, <i>fish-silver</i> evidently instead
+of fish, <i>malt-silver</i> instead of malt; a certain payment
+instead of salt, and so on<a name="FNanchor_634_634" id="FNanchor_634_634"></a><a href="#Footnote_634_634" class="fnanchor">[634]</a>. 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 <i>fald-silver</i>. Even
+so the <i>scythe-penny</i> from every scythe, the <i>bosing-silver</i>
+from every horse and cart, the <i>wood-penny</i>, probably for
+the use of wood as fuel, must be regarded as original
+taxes and not quit-rents or commutation-rents<a name="FNanchor_635_635" id="FNanchor_635_635"></a><a href="#Footnote_635_635" class="fnanchor">[635]</a>. <i>Pannage</i>
+is paid in the same way for the swine grazing in the
+woods<a name="FNanchor_636_636" id="FNanchor_636_636"></a><a href="#Footnote_636_636" class="fnanchor">[636]</a>. <i>Ward-penny</i> 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<a name="FNanchor_637_637" id="FNanchor_637_637"></a><a href="#Footnote_637_637" class="fnanchor">[637]</a>.</p>
+
+<div class="sidenote">Classification of money payments.</div>
+
+<p>I must acknowledge that in a good many cases I have
+been unable to find a satisfactory explanation for various<span class="pagenum"><a name="Page_292" id="Page_292">292</a></span>
+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<a name="FNanchor_638_638" id="FNanchor_638_638"></a><a href="#Footnote_638_638" class="fnanchor">[638]</a>. 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<a name="FNanchor_639_639" id="FNanchor_639_639"></a><a href="#Footnote_639_639" class="fnanchor">[639]</a>.
+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<a name="FNanchor_640_640" id="FNanchor_640_640"></a><a href="#Footnote_640_640" class="fnanchor">[640]</a>. A division of rents into old
+and new ones does not require any particular explanation<a name="FNanchor_641_641" id="FNanchor_641_641"></a><a href="#Footnote_641_641" class="fnanchor">[641]</a>.
+But several other subdivisions are worth notice. The rent
+paid from the land often appears separately as <i>landgafol</i> or
+<i>landchere</i>. It is naturally opposed to payments that fall
+on the person as poll taxes<a name="FNanchor_642_642" id="FNanchor_642_642"></a><a href="#Footnote_642_642" class="fnanchor">[642]</a>. These last are considered
+as a return for the personal protection guaranteed by the
+lord to his subjects. Of the contrast between <i>gafol</i> as a
+customary rent and <i>mál</i> as a payment in commutation I
+have spoken already, and I have only to add now, that <i>gild</i><span class="pagenum"><a name="Page_293" id="Page_293">293</a></span>
+is sometimes used in the same sense as <i>mál</i><a name="FNanchor_643_643" id="FNanchor_643_643"></a><a href="#Footnote_643_643" class="fnanchor">[643]</a>. Another
+term in direct opposition to <i>gafol</i> is the Latin <i>donum</i><a name="FNanchor_644_644" id="FNanchor_644_644"></a><a href="#Footnote_644_644" class="fnanchor">[644]</a>.
+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<a name="FNanchor_645_645" id="FNanchor_645_645"></a><a href="#Footnote_645_645" class="fnanchor">[645]</a>. 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 <i>mál</i> or <i>gild</i>, in fact<a name="FNanchor_646_646" id="FNanchor_646_646"></a><a href="#Footnote_646_646" class="fnanchor">[646]</a>. In
+close connexion with the <i>donum</i> we find the <i>auxilium</i><a name="FNanchor_647_647" id="FNanchor_647_647"></a><a href="#Footnote_647_647" class="fnanchor">[647]</a>,
+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<a name="FNanchor_648_648" id="FNanchor_648_648"></a><a href="#Footnote_648_648" class="fnanchor">[648]</a>: 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<a name="FNanchor_649_649" id="FNanchor_649_649"></a><a href="#Footnote_649_649" class="fnanchor">[649]</a>. As I have said already, the <i>auxilium</i> is<span class="pagenum"><a name="Page_294" id="Page_294">294</a></span>
+in every respect like the <i>donum</i>. 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<a name="FNanchor_650_650" id="FNanchor_650_650"></a><a href="#Footnote_650_650" class="fnanchor">[650]</a>. 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.</p>
+
+<div class="sidenote">Payments to State and Church.</div>
+
+<p>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 <i>scutage</i> and <i>hidage</i> 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 <i>ward-penny</i> is bound
+up with it, probably as a substitute for the duty of keeping
+watch and ward<a name="FNanchor_651_651" id="FNanchor_651_651"></a><a href="#Footnote_651_651" class="fnanchor">[651]</a>. In the north the hidage is replaced<span class="pagenum"><a name="Page_295" id="Page_295">295</a></span>
+by <i>cornage</i><a name="FNanchor_652_652" id="FNanchor_652_652"></a><a href="#Footnote_652_652" class="fnanchor">[652]</a>, a tax which has given rise to learned controversy
+and doubt; it looks like an assessment according to
+the number of horns of cattle, <i>pro numero averiorum</i>, as
+our Latin extents would say. The Church has also an
+ancient claim on the help of the faithful; the <i>churchscot</i>
+of Saxon times often occurs in the feudal age under
+the name of <i>churiset</i> or <i>cheriset</i><a name="FNanchor_653_653" id="FNanchor_653_653"></a><a href="#Footnote_653_653" class="fnanchor">[653]</a>. It is mostly paid in
+kind, but may be found occasionally as a money-rent.</p>
+
+<div class="sidenote">Questions suggested by a survey of work and rents.</div>
+
+<p>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.</p>
+
+<div class="sidenote">Cases where the usual order was not adhered to.</div>
+
+<p>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<span class="pagenum"><a name="Page_296" id="Page_296">296</a></span>
+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<a name="FNanchor_654_654" id="FNanchor_654_654"></a><a href="#Footnote_654_654" class="fnanchor">[654]</a>, 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<a name="FNanchor_655_655" id="FNanchor_655_655"></a><a href="#Footnote_655_655" class="fnanchor">[655]</a>. 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&mdash;a certain percentage
+of free days must have occurred during the winter at least.
+And what is even more to be considered&mdash;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<span class="pagenum"><a name="Page_297" id="Page_297">297</a></span>
+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.</p>
+
+<div class="sidenote">Relation between the customary system and the arbitrary authority of the lord.</div>
+
+<p>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<a name="FNanchor_656_656" id="FNanchor_656_656"></a><a href="#Footnote_656_656" class="fnanchor">[656]</a>. 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<a name="FNanchor_657_657" id="FNanchor_657_657"></a><a href="#Footnote_657_657" class="fnanchor">[657]</a>. Again,
+the lord had some latitude in selecting one or the other
+kind of service to be performed by his men<a name="FNanchor_658_658" id="FNanchor_658_658"></a><a href="#Footnote_658_658" class="fnanchor">[658]</a>. 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<a name="FNanchor_659_659" id="FNanchor_659_659"></a><a href="#Footnote_659_659" class="fnanchor">[659]</a>. The tenacity of<span class="pagenum"><a name="Page_298" id="Page_298">298</a></span>
+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<a name="FNanchor_660_660" id="FNanchor_660_660"></a><a href="#Footnote_660_660" class="fnanchor">[660]</a>. 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<a name="FNanchor_661_661" id="FNanchor_661_661"></a><a href="#Footnote_661_661" class="fnanchor">[661]</a>. 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<a name="FNanchor_662_662" id="FNanchor_662_662"></a><a href="#Footnote_662_662" class="fnanchor">[662]</a>.<span class="pagenum"><a name="Page_299" id="Page_299">299</a></span>
+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<a name="FNanchor_663_663" id="FNanchor_663_663"></a><a href="#Footnote_663_663" class="fnanchor">[663]</a>' 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<span class="pagenum"><a name="Page_300" id="Page_300">300</a></span>
+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.</p>
+
+<div class="sidenote">The holdings and the population.</div>
+
+<p>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 (<i>sequela</i>)<a name="FNanchor_664_664" id="FNanchor_664_664"></a><a href="#Footnote_664_664" class="fnanchor">[664]</a>, 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&mdash;the boon-days namely.
+The description of the <i>precariae</i> 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<a name="FNanchor_665_665" id="FNanchor_665_665"></a><a href="#Footnote_665_665" class="fnanchor">[665]</a>.
+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<span class="pagenum"><a name="Page_301" id="Page_301">301</a></span>
+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.</p>
+
+<div class="sidenote">Stages in the arrangement of duties.</div>
+
+<p>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.</p>
+
+<div class="sidenote">Farm-system.</div>
+
+<p>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 <i>farm</i> being used in the original sense of the Saxon
+<i>feorm</i>, food, and not in the later meaning of fixed rent,
+although these two meanings appear intimately connected
+in history. The <i>farm</i> 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,<span class="pagenum"><a name="Page_302" id="Page_302">302</a></span>
+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, &amp;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<a name="FNanchor_666_666" id="FNanchor_666_666"></a><a href="#Footnote_666_666" class="fnanchor">[666]</a>.
+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<a name="FNanchor_667_667" id="FNanchor_667_667"></a><a href="#Footnote_667_667" class="fnanchor">[667]</a>.
+The firmae of St. Alban's were reckoned to provide for
+the fifty-two weeks of the year, and one in advance<a name="FNanchor_668_668" id="FNanchor_668_668"></a><a href="#Footnote_668_668" class="fnanchor">[668]</a>.
+The practice of arranging the produce-rents according to
+farms was by no means restricted to ecclesiastical management;<span class="pagenum"><a name="Page_303" id="Page_303">303</a></span>
+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 <i>firmae
+unius noctis</i>, at which some of the royal manors were
+assessed<a name="FNanchor_669_669" id="FNanchor_669_669"></a><a href="#Footnote_669_669" class="fnanchor">[669]</a>. 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<a name="FNanchor_670_670" id="FNanchor_670_670"></a><a href="#Footnote_670_670" class="fnanchor">[670]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_304" id="Page_304">304</a></span></p><div class="sidenote">Decay of the farm-system.</div>
+
+<p>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.</p>
+
+<p>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>i.e.</i> 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.</p><p><span class="pagenum"><a name="Page_305" id="Page_305">305</a></span></p>
+
+<div class="sidenote">Assessment under the farm-system.</div>
+
+<p>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<a name="FNanchor_671_671" id="FNanchor_671_671"></a><a href="#Footnote_671_671" class="fnanchor">[671]</a>. 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.</p>
+
+<div class="sidenote">Labour-service system.</div>
+
+<p>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<span class="pagenum"><a name="Page_306" id="Page_306">306</a></span>
+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<a name="FNanchor_672_672" id="FNanchor_672_672"></a><a href="#Footnote_672_672" class="fnanchor">[672]</a>. 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.</p>
+
+<div class="sidenote">Money-rents system.</div>
+
+<p>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<span class="pagenum"><a name="Page_307" id="Page_307">307</a></span>
+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 <i>rentals</i> are as much the rule from the fourteenth
+century downwards as <i>custumals</i> 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<a name="FNanchor_673_673" id="FNanchor_673_673"></a><a href="#Footnote_673_673" class="fnanchor">[673]</a>, 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<a name="FNanchor_674_674" id="FNanchor_674_674"></a><a href="#Footnote_674_674" class="fnanchor">[674]</a>. 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<a name="FNanchor_675_675" id="FNanchor_675_675"></a><a href="#Footnote_675_675" class="fnanchor">[675]</a>.</p>
+
+<p>One more subject remains to be discussed. Is there<span class="pagenum"><a name="Page_308" id="Page_308">308</a></span>
+in the surveys any marked difference between different
+classes of the peasantry in point of rural duties?</p>
+
+<div class="sidenote">Influence of social distinction on the distribution of duties.</div>
+
+<p>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&mdash;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 (<i>precariae</i>), 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<a name="FNanchor_676_676" id="FNanchor_676_676"></a><a href="#Footnote_676_676" class="fnanchor">[676]</a>. 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<span class="pagenum"><a name="Page_309" id="Page_309">309</a></span>
+chiefly distinguished by the fact that the first pay rent and
+the last perform labour.</p>
+
+<div class="sidenote">Free and servile duties as rent and labour.</div>
+
+<p>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<a name="FNanchor_677_677" id="FNanchor_677_677"></a><a href="#Footnote_677_677" class="fnanchor">[677]</a>. 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 <i>juga averagiantia</i>,
+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<span class="pagenum"><a name="Page_310" id="Page_310">310</a></span>
+more heavily taxed than the rest. Still they were exempted
+from the most unpopular and inconvenient labour-services.</p>
+
+<p>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<span class="pagenum"><a name="Page_311" id="Page_311">311</a></span>
+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.</p>
+
+<div class="sidenote">Difference in quantity between the impositions of free and unfree population.</div>
+
+<p>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<a name="FNanchor_678_678" id="FNanchor_678_678"></a><a href="#Footnote_678_678" class="fnanchor">[678]</a>. The<span class="pagenum"><a name="Page_312" id="Page_312">312</a></span>
+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.</p>
+
+<p>Three main points seem established by the survey of
+rural work and rents.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p><hr class="chap" /><p><span class="pagenum"><a name="Page_313" id="Page_313">313</a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_2_IV" id="CHAPTER_2_IV"></a>CHAPTER IV.</h2>
+
+<p class="center">THE LORD, HIS SERVANTS AND FREE TENANTS.</p>
+
+
+<div class="sidenote">Medieval rural system.</div>
+
+<p>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 <i>latifundia</i> 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.</p>
+
+<p>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&mdash;it is time to see how the lord's demesne which
+acted as their centre was constituted.</p>
+
+<div class="sidenote">The home-farm.</div>
+
+<p>Bracton mentions as the distinguishing trait of the
+demesne, that it is set aside for the lord's own use, and<span class="pagenum"><a name="Page_314" id="Page_314">314</a></span>
+ministers to the wants of his household<a name="FNanchor_679_679" id="FNanchor_679_679"></a><a href="#Footnote_679_679" class="fnanchor">[679]</a>. 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<a name="FNanchor_680_680" id="FNanchor_680_680"></a><a href="#Footnote_680_680" class="fnanchor">[680]</a>. 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.</p>
+
+<p>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<a name="FNanchor_681_681" id="FNanchor_681_681"></a><a href="#Footnote_681_681" class="fnanchor">[681]</a>. 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<a name="FNanchor_682_682" id="FNanchor_682_682"></a><a href="#Footnote_682_682" class="fnanchor">[682]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_315" id="Page_315">315</a></span></p><div class="sidenote">Bockyng, Essex.</div>
+
+<p>The following description of Bockyng in Essex<a name="FNanchor_683_683" id="FNanchor_683_683"></a><a href="#Footnote_683_683" class="fnanchor">[683]</a>, 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.</p>
+
+<p>The manorial house and close cover five acres. The
+grass within its precincts which may serve as food for
+cattle is valued at 8<i>d.</i> a year. Corn is also sold there to
+the value of 12<i>d.</i> a year, sometimes more and sometimes
+less, according to the quantity sown. The orchard provides
+fruit and vegetables worth 13<i>s.</i> 4<i>d.</i> a year; the duty
+levied from the swine gives 6<i>d.</i></p>
+
+<p>The pigeon-house is worth 4<i>d.</i></p>
+
+<p>Two mills, 7<i>l.</i> 1<i>s.</i> 8<i>d.</i></p>
+
+<p>A fishery, 12<i>d.</i></p>
+
+<p>A wood called Brekyng Park, containing 480 acres, and
+the brushwood there is worth 40<i>s.</i></p>
+
+<p>Grass in the wood 12<i>d.</i>, because it grows only in a few
+places.</p>
+
+<p>Pannage duty from the swine, 10<i>s.</i></p>
+
+<p>Another wood called Le Flox contains 10 acres, and the
+brushwood is worth 6<i>d.</i></p>
+
+<p>Pannage from the swine, 6<i>d.</i></p>
+
+<p>Grass, 6<i>d.</i></p>
+
+<p>Arable, in all fields, 510 acres, the acre being assessed at
+6<i>d.</i> all round.</p>
+
+<p>Each plough may easily till one acre a day, if four horses
+and two oxen are put to it.</p>
+
+<p>Two meadows, one containing eight acres, of which
+every single acre yields 4<i>s.</i> a year; the other meadow
+contains seven acres of similar value.</p>
+
+<p>Pasture in severalty&mdash;30 acres, at 12<i>d.</i> an acre.</p>
+
+<p>Of these, 16 acres are set apart for oxen and horses, and
+14 for cows.</p>
+
+<p>Some small particles of pasture leased out to the tenants,
+4<i>s.</i></p>
+
+<p>The prior and the convent are lords of the common<span class="pagenum"><a name="Page_316" id="Page_316">316</a></span>
+pasture in Bockyng, and may send 100 sheep to these
+commons, and to the fields when not under crop. Value
+20<i>s.</i></p>
+
+<p>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
+<i>consuetudines villae</i>, that is by the customary work performed
+on different days by the peasantry<a name="FNanchor_684_684" id="FNanchor_684_684"></a><a href="#Footnote_684_684" class="fnanchor">[684]</a>. 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.</p>
+
+<div class="sidenote">The demesne and the village.</div>
+
+<p>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.<a name="FNanchor_685_685" id="FNanchor_685_685"></a><a href="#Footnote_685_685" class="fnanchor">[685]</a>). 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<a name="FNanchor_686_686" id="FNanchor_686_686"></a><a href="#Footnote_686_686" class="fnanchor">[686]</a>: 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.</p>
+
+<p><span class="pagenum"><a name="Page_317" id="Page_317">317</a></span></p><p>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<a name="FNanchor_687_687" id="FNanchor_687_687"></a><a href="#Footnote_687_687" class="fnanchor">[687]</a>. 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.</p>
+
+<div class="sidenote">'Ministeriality.'</div>
+
+<p>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<a name="FNanchor_688_688" id="FNanchor_688_688"></a><a href="#Footnote_688_688" class="fnanchor">[688]</a>. Great lords usually confided<span class="pagenum"><a name="Page_318" id="Page_318">318</a></span>
+the general supervision of their estates to a <i>seneschal</i>,
+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 <i>firmarius</i><a name="FNanchor_689_689" id="FNanchor_689_689"></a><a href="#Footnote_689_689" class="fnanchor">[689]</a>.
+By his side appears the reeve, or <i>praepositus</i>, nominated
+from among the peasants of a particular township, and
+mostly chosen by them<a name="FNanchor_690_690" id="FNanchor_690_690"></a><a href="#Footnote_690_690" class="fnanchor">[690]</a>. Manorial instructions add sometimes
+that no villain has a right to hold aloof from such
+an appointment, if it is conferred on him<a name="FNanchor_691_691" id="FNanchor_691_691"></a><a href="#Footnote_691_691" class="fnanchor">[691]</a>. 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<span class="pagenum"><a name="Page_319" id="Page_319">319</a></span>
+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.</p>
+
+<p>Next after the reeve comes, on large estates, the <i>messor</i>,
+who takes charge of the harvest, and sometimes acts as
+collector of fines imposed for the benefit of the lord<a name="FNanchor_692_692" id="FNanchor_692_692"></a><a href="#Footnote_692_692" class="fnanchor">[692]</a>. The
+<i>akermanni</i> or <i>carucarii</i> are the leaders of the unwieldy
+ploughs of the time<a name="FNanchor_693_693" id="FNanchor_693_693"></a><a href="#Footnote_693_693" class="fnanchor">[693]</a>, and they are helped by a set of
+drivers and boys who have to attend to the oxen or horses<a name="FNanchor_694_694" id="FNanchor_694_694"></a><a href="#Footnote_694_694" class="fnanchor">[694]</a>.
+Shepherds for every kind of cattle are also mentioned<a name="FNanchor_695_695" id="FNanchor_695_695"></a><a href="#Footnote_695_695" class="fnanchor">[695]</a>, as
+well as keepers and warders of the woods and fences<a name="FNanchor_696_696" id="FNanchor_696_696"></a><a href="#Footnote_696_696" class="fnanchor">[696]</a>.
+In the Suffolk manors of Bury St. Edmund's we find the
+curious term <i>lurard</i> to designate a person superintending
+the hay harvest<a name="FNanchor_697_697" id="FNanchor_697_697"></a><a href="#Footnote_697_697" class="fnanchor">[697]</a>.</p>
+
+<p>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<a name="FNanchor_698_698" id="FNanchor_698_698"></a><a href="#Footnote_698_698" class="fnanchor">[698]</a>'.
+A 'vagiator' (vadiator?) serves writs and distrains
+goods for rents<a name="FNanchor_699_699" id="FNanchor_699_699"></a><a href="#Footnote_699_699" class="fnanchor">[699]</a>. 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<span class="pagenum"><a name="Page_320" id="Page_320">320</a></span>
+system and imposed on all the officers of the demesne
+who own horses<a name="FNanchor_700_700" id="FNanchor_700_700"></a><a href="#Footnote_700_700" class="fnanchor">[700]</a>.</p>
+
+<p>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
+<i>ministeriales</i>, as they were called in Germany, came into
+being. In England they are termed sergeants and
+servants, <i>servientes</i>. In Glastonbury Abbey there were
+sixty-six servants besides the workmen and foremen
+employed on the farm<a name="FNanchor_701_701" id="FNanchor_701_701"></a><a href="#Footnote_701_701" class="fnanchor">[701]</a>. 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<a name="FNanchor_702_702" id="FNanchor_702_702"></a><a href="#Footnote_702_702" class="fnanchor">[702]</a>.</p>
+
+<div class="sidenote">Formation of the class.</div>
+
+<p>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<a name="FNanchor_703_703" id="FNanchor_703_703"></a><a href="#Footnote_703_703" class="fnanchor">[703]</a>, etc.<span class="pagenum"><a name="Page_321" id="Page_321">321</a></span>
+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<a name="FNanchor_704_704" id="FNanchor_704_704"></a><a href="#Footnote_704_704" class="fnanchor">[704]</a>.
+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.</p>
+
+<div class="sidenote">Remuneration of the class.</div>
+
+<p>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<a name="FNanchor_705_705" id="FNanchor_705_705"></a><a href="#Footnote_705_705" class="fnanchor">[705]</a>.<span class="pagenum"><a name="Page_322" id="Page_322">322</a></span>
+The chief scullion (<i>scutellarius</i>) had a right to all remnants
+of viands,&mdash;but not of game,&mdash;to the feathers and the bowels
+of geese<a name="FNanchor_706_706" id="FNanchor_706_706"></a><a href="#Footnote_706_706" class="fnanchor">[706]</a>. Again, all the household and workmen constantly
+employed had certain quantities of food, drink, and
+clothing assigned to them<a name="FNanchor_707_707" id="FNanchor_707_707"></a><a href="#Footnote_707_707" class="fnanchor">[707]</a>. Of one of the Glastonbury
+clerks we hear that he received one portion (<i>liberacio</i>) 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<a name="FNanchor_708_708" id="FNanchor_708_708"></a><a href="#Footnote_708_708" class="fnanchor">[708]</a>.</p>
+
+<p>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<a name="FNanchor_709_709" id="FNanchor_709_709"></a><a href="#Footnote_709_709" class="fnanchor">[709]</a>. The performance of the specific duties<span class="pagenum"><a name="Page_323" id="Page_323">323</a></span>
+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&mdash;it was
+indissolubly connected with land-holding.</p>
+
+<div class="sidenote">Importance of the 'ministeriality.'</div>
+
+<p>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<a name="FNanchor_710_710" id="FNanchor_710_710"></a><a href="#Footnote_710_710" class="fnanchor">[710]</a>. 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,<span class="pagenum"><a name="Page_324" id="Page_324">324</a></span>
+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 <i>libertini</i> had
+to fulfil kindred functions in the ancient world, but
+their importance was hardly so great as that of medieval
+sergeants or <i>ministeriales</i>. 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<a name="FNanchor_711_711" id="FNanchor_711_711"></a><a href="#Footnote_711_711" class="fnanchor">[711]</a>. In Glastonbury five cooks
+shared in the kitchen-fee<a name="FNanchor_712_712" id="FNanchor_712_712"></a><a href="#Footnote_712_712" class="fnanchor">[712]</a>. The head of the cellar, the
+gatekeeper, and the chief shepherd enter into agreements
+in regard to extensive plots of land<a name="FNanchor_713_713" id="FNanchor_713_713"></a><a href="#Footnote_713_713" class="fnanchor">[713]</a>. 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<span class="pagenum"><a name="Page_325" id="Page_325">325</a></span>
+resort to a regular <i>coup d'état</i> in order to displace the privileged
+families which had got hold of the offices and treated
+them as hereditary property<a name="FNanchor_714_714" id="FNanchor_714_714"></a><a href="#Footnote_714_714" class="fnanchor">[714]</a>. 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.</p>
+
+<div class="sidenote">Free tenants in the manor.</div>
+
+<p>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<span class="pagenum"><a name="Page_326" id="Page_326">326</a></span>
+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 <i>prima
+facie</i> 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_327" id="Page_327">327</a></span>
+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<a name="FNanchor_715_715" id="FNanchor_715_715"></a><a href="#Footnote_715_715" class="fnanchor">[715]</a>.</p>
+
+<div class="sidenote">Free tenements carved out of the demesne.</div>
+
+<p>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<span class="pagenum"><a name="Page_328" id="Page_328">328</a></span>
+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<a name="FNanchor_716_716" id="FNanchor_716_716"></a><a href="#Footnote_716_716" class="fnanchor">[716]</a>. 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.</p>
+
+<p>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<a name="FNanchor_717_717" id="FNanchor_717_717"></a><a href="#Footnote_717_717" class="fnanchor">[717]</a>. Sometimes a plot of the lord's land
+is given to compensate the bad quality of the peasant's
+land<a name="FNanchor_718_718" id="FNanchor_718_718"></a><a href="#Footnote_718_718" class="fnanchor">[718]</a>. 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<a name="FNanchor_719_719" id="FNanchor_719_719"></a><a href="#Footnote_719_719" class="fnanchor">[719]</a>. In a number
+of cases these grants of demesne are actual leases, and
+probably the result of hard bargains.</p>
+
+<div class="sidenote">Inland.</div>
+
+<p>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<span class="pagenum"><a name="Page_329" id="Page_329">329</a></span>
+them from the regular customary holdings<a name="FNanchor_720_720" id="FNanchor_720_720"></a><a href="#Footnote_720_720" class="fnanchor">[720]</a>.
+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<a name="FNanchor_721_721" id="FNanchor_721_721"></a><a href="#Footnote_721_721" class="fnanchor">[721]</a>.
+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<a name="FNanchor_722_722" id="FNanchor_722_722"></a><a href="#Footnote_722_722" class="fnanchor">[722]</a>. The Domesday of St. Paul's is<span class="pagenum"><a name="Page_330" id="Page_330">330</a></span>
+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<a name="FNanchor_723_723" id="FNanchor_723_723"></a><a href="#Footnote_723_723" class="fnanchor">[723]</a>.'</p>
+
+<div class="sidenote">Leases.</div>
+
+<p>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<a name="FNanchor_724_724" id="FNanchor_724_724"></a><a href="#Footnote_724_724" class="fnanchor">[724]</a>.</p>
+
+<p>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<span class="pagenum"><a name="Page_331" id="Page_331">331</a></span>
+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<a name="FNanchor_725_725" id="FNanchor_725_725"></a><a href="#Footnote_725_725" class="fnanchor">[725]</a>. 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<a name="FNanchor_726_726" id="FNanchor_726_726"></a><a href="#Footnote_726_726" class="fnanchor">[726]</a>. 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<a name="FNanchor_727_727" id="FNanchor_727_727"></a><a href="#Footnote_727_727" class="fnanchor">[727]</a>.<span class="pagenum"><a name="Page_332" id="Page_332">332</a></span>
+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&mdash;whether
+they were provided by the landlord or by the
+tenant.</p>
+
+<div class="sidenote">Forlands.</div>
+
+<p>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 '<i>subsecivae</i>,' as the Romans would
+have said, were always distributed for small rents in kind
+or in money<a name="FNanchor_728_728" id="FNanchor_728_728"></a><a href="#Footnote_728_728" class="fnanchor">[728]</a>. 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<a name="FNanchor_729_729" id="FNanchor_729_729"></a><a href="#Footnote_729_729" class="fnanchor">[729]</a>.
+Plots of this kind are called <i>forlands</i><a name="FNanchor_730_730" id="FNanchor_730_730"></a><a href="#Footnote_730_730" class="fnanchor">[730]</a>. In close connexion
+with them we find the <i>essarts</i> or <i>assarts</i>&mdash;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&mdash;the
+old and the new essarts<a name="FNanchor_731_731" id="FNanchor_731_731"></a><a href="#Footnote_731_731" class="fnanchor">[731]</a>. The documents show<span class="pagenum"><a name="Page_333" id="Page_333">333</a></span>
+also that the spread of the area under cultivation was
+effected in different ways; sometimes by a single settler
+with help from the lord<a name="FNanchor_732_732" id="FNanchor_732_732"></a><a href="#Footnote_732_732" class="fnanchor">[732]</a>, and sometimes by the entire village,
+or at any rate by a large group of peasants who club
+together for the purpose<a name="FNanchor_733_733" id="FNanchor_733_733"></a><a href="#Footnote_733_733" class="fnanchor">[733]</a>. 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 <i>emphyteusis</i> as a contract in favour of the pioneers of
+cultivation, the French feudal law endowed the <i>hôtes</i> (<i>hospites</i>)
+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.</p>
+
+<p>Of <i>mol-land</i> 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&mdash;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 <i>terra assisa</i> or <i>ad censum</i>. This class,<span class="pagenum"><a name="Page_334" id="Page_334">334</a></span>
+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 '<i>Socagium ad placitum</i>' and '<i>Socagium villani</i><a name="FNanchor_734_734" id="FNanchor_734_734"></a><a href="#Footnote_734_734" class="fnanchor">[734]</a>.'
+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 <i>socage</i>, but it is not defended by feoffment and
+charter; it is not recognised by law, and therefore it
+remains <i>at the will</i> of the lord and unfree<a name="FNanchor_735_735" id="FNanchor_735_735"></a><a href="#Footnote_735_735" class="fnanchor">[735]</a>. The grant
+of a charter would raise it to the legal standing of free
+land.</p>
+
+<div class="sidenote">Ancient freeholds.</div>
+
+<p>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<span class="pagenum"><a name="Page_335" id="Page_335">335</a></span>
+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<i>s.</i> 6<i>d.</i>,
+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.</p>
+
+<p>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<span class="pagenum"><a name="Page_336" id="Page_336">336</a></span>
+these inferences are natural enough, and all have been
+actually drawn.</p>
+
+<p>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.</p>
+
+<p>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<a name="FNanchor_736_736" id="FNanchor_736_736"></a><a href="#Footnote_736_736" class="fnanchor">[736]</a>,
+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.</p>
+
+<div class="sidenote">Free virgates.</div>
+
+<p>And a little attention will show us many cases in which<span class="pagenum"><a name="Page_337" id="Page_337">337</a></span>
+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<a name="FNanchor_737_737" id="FNanchor_737_737"></a><a href="#Footnote_737_737" class="fnanchor">[737]</a>. 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<span class="pagenum"><a name="Page_338" id="Page_338">338</a></span>
+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<a name="FNanchor_738_738" id="FNanchor_738_738"></a><a href="#Footnote_738_738" class="fnanchor">[738]</a>. 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<a name="FNanchor_739_739" id="FNanchor_739_739"></a><a href="#Footnote_739_739" class="fnanchor">[739]</a>, 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<span class="pagenum"><a name="Page_339" id="Page_339">339</a></span>
+of every week from Michaelmas to the 1st of August, four
+weeks being excepted in honour of Christmas, Easter, and
+Trinity<a name="FNanchor_740_740" id="FNanchor_740_740"></a><a href="#Footnote_740_740" class="fnanchor">[740]</a>. 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<a name="FNanchor_741_741" id="FNanchor_741_741"></a><a href="#Footnote_741_741" class="fnanchor">[741]</a>. 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<a name="FNanchor_742_742" id="FNanchor_742_742"></a><a href="#Footnote_742_742" class="fnanchor">[742]</a>. 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<a name="FNanchor_743_743" id="FNanchor_743_743"></a><a href="#Footnote_743_743" class="fnanchor">[743]</a>. Bidenham, Bedfordshire, also presents an assessment
+of four shillings per free virgate<a name="FNanchor_744_744" id="FNanchor_744_744"></a><a href="#Footnote_744_744" class="fnanchor">[744]</a>. 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<a name="FNanchor_745_745" id="FNanchor_745_745"></a><a href="#Footnote_745_745" class="fnanchor">[745]</a>,
+while in the fee of Maud Passelewe we find only four
+and five shillings as the rent for the half-virgate<a name="FNanchor_746_746" id="FNanchor_746_746"></a><a href="#Footnote_746_746" class="fnanchor">[746]</a>. Papworth
+Anneys exhibits a ferdel of seven and a half acres, for
+which ten to twelve shillings are paid<a name="FNanchor_747_747" id="FNanchor_747_747"></a><a href="#Footnote_747_747" class="fnanchor">[747]</a>. 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<span class="pagenum"><a name="Page_340" id="Page_340">340</a></span>
+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.</p>
+
+<div class="sidenote">Free shareholders.</div>
+
+<p>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.</p>
+
+<div class="sidenote">Origins of free shareholding.</div>
+
+<p>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:&mdash;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<span class="pagenum"><a name="Page_341" id="Page_341">341</a></span>
+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.</p>
+
+<p>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
+<i>ad censum</i><a name="FNanchor_748_748" id="FNanchor_748_748"></a><a href="#Footnote_748_748" class="fnanchor">[748]</a>, 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<span class="pagenum"><a name="Page_342" id="Page_342">342</a></span>
+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.</p>
+
+<p>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<a name="FNanchor_749_749" id="FNanchor_749_749"></a><a href="#Footnote_749_749" class="fnanchor">[749]</a>.
+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<a name="FNanchor_750_750" id="FNanchor_750_750"></a><a href="#Footnote_750_750" class="fnanchor">[750]</a>. 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,<span class="pagenum"><a name="Page_343" id="Page_343">343</a></span>
+the villains perform labour duties valued at 9<i>s.</i> 4<i>d.</i>
+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<i>s.</i> 6<i>d.</i>
+per bovate<a name="FNanchor_751_751" id="FNanchor_751_751"></a><a href="#Footnote_751_751" class="fnanchor">[751]</a>. 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<a name="FNanchor_752_752" id="FNanchor_752_752"></a><a href="#Footnote_752_752" class="fnanchor">[752]</a>. 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<a name="FNanchor_753_753" id="FNanchor_753_753"></a><a href="#Footnote_753_753" class="fnanchor">[753]</a>. 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.</p>
+
+<p>In Brandone, Warwickshire, the typical villain, William
+Bateman, pays for his virgate 5<i>s.</i> 3<i>d.</i>, 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<a name="FNanchor_754_754" id="FNanchor_754_754"></a><a href="#Footnote_754_754" class="fnanchor">[754]</a>. In Bathekynton,
+Warwickshire, the difference in favour of the free
+is also noticeable, but not so great<a name="FNanchor_755_755" id="FNanchor_755_755"></a><a href="#Footnote_755_755" class="fnanchor">[755]</a>. And these are by no<span class="pagenum"><a name="Page_344" id="Page_344">344</a></span>
+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<a name="FNanchor_756_756" id="FNanchor_756_756"></a><a href="#Footnote_756_756" class="fnanchor">[756]</a>.</p>
+
+<p>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,<span class="pagenum"><a name="Page_345" id="Page_345">345</a></span>
+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 <i>en bloc</i> 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.</p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_346" id="Page_346">346</a></span>
+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.</p>
+
+<p>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<span class="pagenum"><a name="Page_347" id="Page_347">347</a></span>
+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 <i>raison d'être</i> 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_348" id="Page_348">348</a></span>
+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<a name="FNanchor_757_757" id="FNanchor_757_757"></a><a href="#Footnote_757_757" class="fnanchor">[757]</a>. They can only
+have one meaning&mdash;that of 'recognitions<a name="FNanchor_758_758" id="FNanchor_758_758"></a><a href="#Footnote_758_758" class="fnanchor">[758]</a>.' 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<span class="pagenum"><a name="Page_349" id="Page_349">349</a></span>
+suit<a name="FNanchor_759_759" id="FNanchor_759_759"></a><a href="#Footnote_759_759" class="fnanchor">[759]</a>. 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.'</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>Let us take the manor of Chesterton, in Cambridgeshire<a name="FNanchor_760_760" id="FNanchor_760_760"></a><a href="#Footnote_760_760" class="fnanchor">[760]</a>.
+It is royal, but let out in feefarm to the Prior of Barnwell,
+and its men make use of the <i>parvum breve de recto</i>. There is
+one free tenant of eighty-eight acres holding <i>de antiquitate</i>
+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<span class="pagenum"><a name="Page_350" id="Page_350">350</a></span>
+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.</p>
+
+<p>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&mdash;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&mdash;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<a name="FNanchor_761_761" id="FNanchor_761_761"></a><a href="#Footnote_761_761" class="fnanchor">[761]</a>. I would especially direct the attention of<span class="pagenum"><a name="Page_351" id="Page_351">351</a></span>
+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.</p>
+
+<p>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<a name="FNanchor_762_762" id="FNanchor_762_762"></a><a href="#Footnote_762_762" class="fnanchor">[762]</a>, 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<i>s.</i> 2<i>d.</i> per holding, and obliged to assist at reaping
+and to bring chicken, one socman of nine acres paying
+10<i>d.</i>, one of seven acres also assessed at 10<i>d.</i>, two of eleven
+acres paying 15<i>d.</i>, etc.</p>
+
+<p>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<a name="FNanchor_763_763" id="FNanchor_763_763"></a><a href="#Footnote_763_763" class="fnanchor">[763]</a>.
+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<i>s.</i> each and performing various labour services.
+These services have been considerably increased by
+the Prior. Mixed cases are much more usual&mdash;I mean
+cases in which the original regularity has suffered some<span class="pagenum"><a name="Page_352" id="Page_352">352</a></span>
+modifications, though a little attention will discover traces
+of the ancient communal arrangement<a name="FNanchor_764_764" id="FNanchor_764_764"></a><a href="#Footnote_764_764" class="fnanchor">[764]</a>.</p>
+
+<p>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&mdash;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.</p>
+
+<p>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.</p>
+
+<p>Three conclusions have been arrived at in this chapter.</p>
+
+<p>1. The home-farm, though the necessary central unit of<span class="pagenum"><a name="Page_353" id="Page_353">353</a></span>
+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.</p>
+
+<p>2. The peculiar feature of medieval husbandry&mdash;the
+grouping of small households round an aristocratic centre&mdash;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.</p>
+
+<p>3. The position of free tenements within the manor may
+be ascribed to one of three causes: (<i>a</i>) they have been
+the tenements of serfs, but, in consequence either of some
+general commutation or of special feoffments, they have
+become free; or (<i>b</i>) 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 (<i>c</i>) they represent free shares in a
+village community upon which the manorial structure has
+been superimposed.</p><hr class="chap" /><p><span class="pagenum"><a name="Page_354" id="Page_354">354</a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_2_V" id="CHAPTER_2_V"></a>CHAPTER V.</h2>
+
+<p class="center">THE MANORIAL COURTS.</p>
+
+
+<div class="sidenote">The village community.</div>
+
+<p>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<a name="FNanchor_765_765" id="FNanchor_765_765"></a><a href="#Footnote_765_765" class="fnanchor">[765]</a>. He had practically to<span class="pagenum"><a name="Page_355" id="Page_355">355</a></span>
+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.</p>
+
+<div class="sidenote">The village and the manorial officers.</div>
+
+<p>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<span class="pagenum"><a name="Page_356" id="Page_356">356</a></span>
+to points of law; very often they concerned facts of the
+same nature as those enrolled in the surveys<a name="FNanchor_766_766" id="FNanchor_766_766"></a><a href="#Footnote_766_766" class="fnanchor">[766]</a>.</p>
+
+<div class="sidenote">Village officers.</div>
+
+<p>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<a name="FNanchor_767_767" id="FNanchor_767_767"></a><a href="#Footnote_767_767" class="fnanchor">[767]</a>.
+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<a name="FNanchor_768_768" id="FNanchor_768_768"></a><a href="#Footnote_768_768" class="fnanchor">[768]</a>. 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<a name="FNanchor_769_769" id="FNanchor_769_769"></a><a href="#Footnote_769_769" class="fnanchor">[769]</a>. The economic tracts of the thirteenth century
+state the same principle in even a more explicit manner.</p>
+
+<div class="sidenote">Communal liability.</div>
+
+<p>From the manorial point of view the whole village is
+responsible for the collection of duties. There are payments<span class="pagenum"><a name="Page_357" id="Page_357">357</a></span>
+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<a name="FNanchor_770_770" id="FNanchor_770_770"></a><a href="#Footnote_770_770" class="fnanchor">[770]</a>. 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<a name="FNanchor_771_771" id="FNanchor_771_771"></a><a href="#Footnote_771_771" class="fnanchor">[771]</a>. 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<a name="FNanchor_772_772" id="FNanchor_772_772"></a><a href="#Footnote_772_772" class="fnanchor">[772]</a>. 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<a name="FNanchor_773_773" id="FNanchor_773_773"></a><a href="#Footnote_773_773" class="fnanchor">[773]</a>.</p>
+
+<p>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.</p>
+
+<div class="sidenote">Village and manor.</div>
+
+<p>I have already spoken of the curious fact that the village
+is legally recognised as a unit, separated from the manor<span class="pagenum"><a name="Page_358" id="Page_358">358</a></span>
+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<a name="FNanchor_774_774" id="FNanchor_774_774"></a><a href="#Footnote_774_774" class="fnanchor">[774]</a>. The documents tell us of craftsmen
+who have to work for the village as well as for the
+lord<a name="FNanchor_775_775" id="FNanchor_775_775"></a><a href="#Footnote_775_775" class="fnanchor">[775]</a>. On a parallel with services due to the landowner,
+we find sometimes kindred services reserved for the village
+community<a name="FNanchor_776_776" id="FNanchor_776_776"></a><a href="#Footnote_776_776" class="fnanchor">[776]</a>. 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<a name="FNanchor_777_777" id="FNanchor_777_777"></a><a href="#Footnote_777_777" class="fnanchor">[777]</a>. 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.</p>
+
+<div class="sidenote">The village as a juristic person.</div>
+
+<p>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<span class="pagenum"><a name="Page_359" id="Page_359">359</a></span>
+and in a wood called Trendale<a name="FNanchor_778_778" id="FNanchor_778_778"></a><a href="#Footnote_778_778" class="fnanchor">[778]</a>. 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<a name="FNanchor_779_779" id="FNanchor_779_779"></a><a href="#Footnote_779_779" class="fnanchor">[779]</a>, and of a feoffment made
+by them on behalf of the lord.</p>
+
+<p>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.</p><p><span class="pagenum"><a name="Page_360" id="Page_360">360</a></span></p>
+
+<div class="sidenote">The village as a farmer.</div>
+
+<p>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<a name="FNanchor_780_780" id="FNanchor_780_780"></a><a href="#Footnote_780_780" class="fnanchor">[780]</a>. 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<a name="FNanchor_781_781" id="FNanchor_781_781"></a><a href="#Footnote_781_781" class="fnanchor">[781]</a>. 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.</p>
+
+<div class="sidenote">The village and agricultural arrangements.</div>
+
+<p>One great drawback of investigations into the history<span class="pagenum"><a name="Page_361" id="Page_361">361</a></span>
+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<a name="FNanchor_782_782" id="FNanchor_782_782"></a><a href="#Footnote_782_782" class="fnanchor">[782]</a>. 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<a name="FNanchor_783_783" id="FNanchor_783_783"></a><a href="#Footnote_783_783" class="fnanchor">[783]</a>.
+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&mdash;the
+juridical organisation of the manor&mdash;affords
+very interesting clues towards an understanding of the
+system and of its origins.</p>
+
+<div class="sidenote">Collegiate decisions and seignorial power.</div>
+
+<p>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<span class="pagenum"><a name="Page_362" id="Page_362">362</a></span>
+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.</p>
+
+<div class="sidenote">Village Courts.</div>
+
+<p>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&mdash;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.</p>
+
+<div class="sidenote">Court Leet.</div>
+
+<p>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&mdash;Norfolk&mdash;even at the time of
+the Hundred Rolls<a name="FNanchor_784_784" id="FNanchor_784_784"></a><a href="#Footnote_784_784" class="fnanchor">[784]</a>. The foundation of the court was
+laid by the frank-pledge system and the necessity of<span class="pagenum"><a name="Page_363" id="Page_363">363</a></span>
+keeping it in working order. We find the Leet Court
+sometimes under the names 'Curia Visus franci plegii,' or
+'Visus de borchtruning<a name="FNanchor_785_785" id="FNanchor_785_785"></a><a href="#Footnote_785_785" class="fnanchor">[785]</a>,' 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&mdash;the 'Capitales plegii<a name="FNanchor_786_786" id="FNanchor_786_786"></a><a href="#Footnote_786_786" class="fnanchor">[786]</a>.' 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<a name="FNanchor_787_787" id="FNanchor_787_787"></a><a href="#Footnote_787_787" class="fnanchor">[787]</a>. 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<a name="FNanchor_788_788" id="FNanchor_788_788"></a><a href="#Footnote_788_788" class="fnanchor">[788]</a>.</p>
+
+<div class="sidenote">View of Frank-pledge.</div>
+
+<p>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<a name="FNanchor_789_789" id="FNanchor_789_789"></a><a href="#Footnote_789_789" class="fnanchor">[789]</a>. 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<a name="FNanchor_790_790" id="FNanchor_790_790"></a><a href="#Footnote_790_790" class="fnanchor">[790]</a>. 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<span class="pagenum"><a name="Page_364" id="Page_364">364</a></span>
+under the pledge of the person with whom they were
+staying.</p>
+
+<div class="sidenote">Communal accusation.</div>
+
+<p>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<a name="FNanchor_791_791" id="FNanchor_791_791"></a><a href="#Footnote_791_791" class="fnanchor">[791]</a>. 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<a name="FNanchor_792_792" id="FNanchor_792_792"></a><a href="#Footnote_792_792" class="fnanchor">[792]</a>.</p>
+
+<div class="sidenote">Court baron and customary court.</div>
+
+<p>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<span class="pagenum"><a name="Page_365" id="Page_365">365</a></span>
+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<a name="FNanchor_793_793" id="FNanchor_793_793"></a><a href="#Footnote_793_793" class="fnanchor">[793]</a>. 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 <i>Sockemanemot</i> to designate a court
+attended by free sokemen<a name="FNanchor_794_794" id="FNanchor_794_794"></a><a href="#Footnote_794_794" class="fnanchor">[794]</a>, 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&mdash;the <i>halimot</i>.</p>
+
+<div class="sidenote">The halimot.</div>
+
+<p>It met generally once every three weeks, but it happens<span class="pagenum"><a name="Page_366" id="Page_366">366</a></span>
+sometimes that it is called together without a definite
+limit of time at the pleasure of the lord<a name="FNanchor_795_795" id="FNanchor_795_795"></a><a href="#Footnote_795_795" class="fnanchor">[795]</a>. 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<a name="FNanchor_796_796" id="FNanchor_796_796"></a><a href="#Footnote_796_796" class="fnanchor">[796]</a>. The common suitors are
+the peasants living within the manor&mdash;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&mdash;mostly small free
+tenants who have entered into an agreement about a
+certain number of suits to the court<a name="FNanchor_797_797" id="FNanchor_797_797"></a><a href="#Footnote_797_797" class="fnanchor">[797]</a>. These foreign
+suitors appear once every six weeks, twice a year, for
+special trials upon a royal writ, for the hanging of
+thieves<a name="FNanchor_798_798" id="FNanchor_798_798"></a><a href="#Footnote_798_798" class="fnanchor">[798]</a>, 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<a name="FNanchor_799_799" id="FNanchor_799_799"></a><a href="#Footnote_799_799" class="fnanchor">[799]</a>. 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<a name="FNanchor_800_800" id="FNanchor_800_800"></a><a href="#Footnote_800_800" class="fnanchor">[800]</a>. When a
+holding was divided into several parts, the most common
+thing was that one suit remained due from the whole<a name="FNanchor_801_801" id="FNanchor_801_801"></a><a href="#Footnote_801_801" class="fnanchor">[801]</a>.<span class="pagenum"><a name="Page_367" id="Page_367">367</a></span>
+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.</p>
+
+<div class="sidenote">Procedure of the halimot.</div>
+
+<p>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<a name="FNanchor_802_802" id="FNanchor_802_802"></a><a href="#Footnote_802_802" class="fnanchor">[802]</a>. 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<a name="FNanchor_803_803" id="FNanchor_803_803"></a><a href="#Footnote_803_803" class="fnanchor">[803]</a>.
+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<a name="FNanchor_804_804" id="FNanchor_804_804"></a><a href="#Footnote_804_804" class="fnanchor">[804]</a>. Indeed, the very name of 'halimot'
+can hardly be explained otherwise than as the moot
+held in the hall<a name="FNanchor_805_805" id="FNanchor_805_805"></a><a href="#Footnote_805_805" class="fnanchor">[805]</a>. The point is of some interest,
+because the hall is not regarded as a purely material
+contrivance for keeping people protected against the cold<span class="pagenum"><a name="Page_368" id="Page_368">368</a></span>
+and the rain, but appears in close connexion with the
+manor, and as its centre and symbol.</p>
+
+<div class="sidenote">The halimot and agriculture.</div>
+
+<p>We hear very little of husbandry arrangements made by
+the courts<a name="FNanchor_806_806" id="FNanchor_806_806"></a><a href="#Footnote_806_806" class="fnanchor">[806]</a>, and even of the repartition of duties and
+taxes<a name="FNanchor_807_807" id="FNanchor_807_807"></a><a href="#Footnote_807_807" class="fnanchor">[807]</a>. Entries relating to the election of officers are
+more frequent<a name="FNanchor_808_808" id="FNanchor_808_808"></a><a href="#Footnote_808_808" class="fnanchor">[808]</a>, but the largest part of the rolls is taken
+up by legal business of all sorts.</p>
+
+<div class="sidenote">Presentments.</div>
+
+<p>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&mdash;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<span class="pagenum"><a name="Page_369" id="Page_369">369</a></span>
+on the lord's land, to wit, William Cobbler, Maud Robins,
+widow (fined 12<i>d.</i>), John Shepherd (fined 12<i>d.</i>).... Therefore
+they are in mercy<a name="FNanchor_809_809" id="FNanchor_809_809"></a><a href="#Footnote_809_809" class="fnanchor">[809]</a>.' 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<a name="FNanchor_810_810" id="FNanchor_810_810"></a><a href="#Footnote_810_810" class="fnanchor">[810]</a>. 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<a name="FNanchor_811_811" id="FNanchor_811_811"></a><a href="#Footnote_811_811" class="fnanchor">[811]</a>. 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.</p>
+
+<div class="sidenote">Civil jurisdiction.</div>
+
+<p>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<span class="pagenum"><a name="Page_370" id="Page_370">370</a></span>
+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<a name="FNanchor_812_812" id="FNanchor_812_812"></a><a href="#Footnote_812_812" class="fnanchor">[812]</a>, 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<a name="FNanchor_813_813" id="FNanchor_813_813"></a><a href="#Footnote_813_813" class="fnanchor">[813]</a>. I have to endorse one more<span class="pagenum"><a name="Page_371" id="Page_371">371</a></span>
+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.</p>
+
+<div class="sidenote">Surrender and admittance.</div>
+
+<p>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.</p>
+
+<div class="sidenote">Meaning of surrender.</div>
+
+<p>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<span class="pagenum"><a name="Page_372" id="Page_372">372</a></span>
+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.</p>
+
+<div class="sidenote">The rod and the festuca.</div>
+
+<p>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&mdash;<i>par la verge</i>. 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<span class="pagenum"><a name="Page_373" id="Page_373">373</a></span>
+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<a name="FNanchor_814_814" id="FNanchor_814_814"></a><a href="#Footnote_814_814" class="fnanchor">[814]</a>.
+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&mdash;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<a name="FNanchor_815_815" id="FNanchor_815_815"></a><a href="#Footnote_815_815" class="fnanchor">[815]</a>? Is it necessary<span class="pagenum"><a name="Page_374" id="Page_374">374</a></span>
+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<a name="FNanchor_816_816" id="FNanchor_816_816"></a><a href="#Footnote_816_816" class="fnanchor">[816]</a>, 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.</p>
+
+<div class="sidenote">The court roll.</div>
+
+<p>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<span class="pagenum"><a name="Page_375" id="Page_375">375</a></span>
+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<a name="FNanchor_817_817" id="FNanchor_817_817"></a><a href="#Footnote_817_817" class="fnanchor">[817]</a>. 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<span class="pagenum"><a name="Page_376" id="Page_376">376</a></span>
+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<a name="FNanchor_818_818" id="FNanchor_818_818"></a><a href="#Footnote_818_818" class="fnanchor">[818]</a>. 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<a name="FNanchor_819_819" id="FNanchor_819_819"></a><a href="#Footnote_819_819" class="fnanchor">[819]</a>. 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<span class="pagenum"><a name="Page_377" id="Page_377">377</a></span>
+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<a name="FNanchor_820_820" id="FNanchor_820_820"></a><a href="#Footnote_820_820" class="fnanchor">[820]</a>.</p>
+
+<div class="sidenote">Communal testimony.</div>
+
+<p>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<a name="FNanchor_821_821" id="FNanchor_821_821"></a><a href="#Footnote_821_821" class="fnanchor">[821]</a>. Indeed,<span class="pagenum"><a name="Page_378" id="Page_378">378</a></span>
+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.</p>
+
+<div class="sidenote">Courts on the ancient demesne.</div>
+
+<p>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.</p>
+
+<p>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,<span class="pagenum"><a name="Page_379" id="Page_379">379</a></span>
+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<a name="FNanchor_822_822" id="FNanchor_822_822"></a><a href="#Footnote_822_822" class="fnanchor">[822]</a>.' 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<a name="FNanchor_823_823" id="FNanchor_823_823"></a><a href="#Footnote_823_823" class="fnanchor">[823]</a>. Herbert of St. Quentyn brought a writ of false<span class="pagenum"><a name="Page_380" id="Page_380">380</a></span>
+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<a name="FNanchor_824_824" id="FNanchor_824_824"></a><a href="#Footnote_824_824" class="fnanchor">[824]</a>.<span class="pagenum"><a name="Page_381" id="Page_381">381</a></span>
+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<a name="FNanchor_825_825" id="FNanchor_825_825"></a><a href="#Footnote_825_825" class="fnanchor">[825]</a>.</p>
+
+<p>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.</p>
+
+<div class="sidenote">The court at Stoneleigh.</div>
+
+<p>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<span class="pagenum"><a name="Page_382" id="Page_382">382</a></span>
+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<a name="FNanchor_826_826" id="FNanchor_826_826"></a><a href="#Footnote_826_826" class="fnanchor">[826]</a>. In one word, every page of the Stoneleigh
+Register shows a closely and powerfully organised
+community, of which the lord is merely a president.</p>
+<p><span class="pagenum"><a name="Page_383" id="Page_383">383</a></span></p>
+<div class="sidenote">Rolls of King's Ripton.</div>
+
+<p>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<a name="FNanchor_827_827" id="FNanchor_827_827"></a><a href="#Footnote_827_827" class="fnanchor">[827]</a>.'
+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<a name="FNanchor_828_828" id="FNanchor_828_828"></a><a href="#Footnote_828_828" class="fnanchor">[828]</a>. 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<a name="FNanchor_829_829" id="FNanchor_829_829"></a><a href="#Footnote_829_829" class="fnanchor">[829]</a>. 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<span class="pagenum"><a name="Page_384" id="Page_384">384</a></span>
+in the court should be observed in regard to them&mdash;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<a name="FNanchor_830_830" id="FNanchor_830_830"></a><a href="#Footnote_830_830" class="fnanchor">[830]</a>. 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<a name="FNanchor_831_831" id="FNanchor_831_831"></a><a href="#Footnote_831_831" class="fnanchor">[831]</a>. 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<a name="FNanchor_832_832" id="FNanchor_832_832"></a><a href="#Footnote_832_832" class="fnanchor">[832]</a>. 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.<span class="pagenum"><a name="Page_385" id="Page_385">385</a></span>
+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<a name="FNanchor_833_833" id="FNanchor_833_833"></a><a href="#Footnote_833_833" class="fnanchor">[833]</a>.' 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.</p>
+
+<p>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.</p>
+
+<div class="sidenote">Free suitors in the halimot.</div>
+
+<p>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,<span class="pagenum"><a name="Page_386" id="Page_386">386</a></span>
+doubtless because he will not submit to the judgment
+of people who are not on a par with him<a name="FNanchor_834_834" id="FNanchor_834_834"></a><a href="#Footnote_834_834" class="fnanchor">[834]</a>. Freeholders
+object to being placed on ordinary juries of the manor<a name="FNanchor_835_835" id="FNanchor_835_835"></a><a href="#Footnote_835_835" class="fnanchor">[835]</a>,
+although they will serve as jurors on special occasions,
+and as a sort of controlling body over the common
+presenters<a name="FNanchor_836_836" id="FNanchor_836_836"></a><a href="#Footnote_836_836" class="fnanchor">[836]</a>. Amercements are sometimes taxed by free
+suitors<a name="FNanchor_837_837" id="FNanchor_837_837"></a><a href="#Footnote_837_837" class="fnanchor">[837]</a>. 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<a name="FNanchor_838_838" id="FNanchor_838_838"></a><a href="#Footnote_838_838" class="fnanchor">[838]</a>.
+Even in a court composed of free people, like
+that of Broughton, there may be villains among them<a name="FNanchor_839_839" id="FNanchor_839_839"></a><a href="#Footnote_839_839" class="fnanchor">[839]</a>.
+The parson, undoubtedly a free man, may appear as a
+villain in some rolls<a name="FNanchor_840_840" id="FNanchor_840_840"></a><a href="#Footnote_840_840" class="fnanchor">[840]</a>. 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<a name="FNanchor_841_841" id="FNanchor_841_841"></a><a href="#Footnote_841_841" class="fnanchor">[841]</a>. In fact the presenting<span class="pagenum"><a name="Page_387" id="Page_387">387</a></span>
+inquests, on which the free tenants refused to serve,
+would not be prevented by their composition from attainting
+these free tenants.</p>
+
+<div class="sidenote">Requirement of free suitors.</div>
+
+<p>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<a name="FNanchor_842_842" id="FNanchor_842_842"></a><a href="#Footnote_842_842" class="fnanchor">[842]</a>.
+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<span class="pagenum"><a name="Page_388" id="Page_388">388</a></span>
+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<a name="FNanchor_843_843" id="FNanchor_843_843"></a><a href="#Footnote_843_843" class="fnanchor">[843]</a>.' 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&mdash;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<span class="pagenum"><a name="Page_389" id="Page_389">389</a></span>
+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.</p>
+
+<div class="sidenote">Free suitors and freeholders.</div>
+
+<p>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'&mdash;a<span class="pagenum"><a name="Page_390" id="Page_390">390</a></span>
+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 <i>libere tenentes</i> 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<a name="FNanchor_844_844" id="FNanchor_844_844"></a><a href="#Footnote_844_844" class="fnanchor">[844]</a> 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.</p>
+
+<div class="sidenote">Honorial Courts.</div>
+
+<p>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<span class="pagenum"><a name="Page_391" id="Page_391">391</a></span>
+about the Honour and its Court<a name="FNanchor_845_845" id="FNanchor_845_845"></a><a href="#Footnote_845_845" class="fnanchor">[845]</a>. 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.</p>
+
+<div class="sidenote">The soke.</div>
+
+<p>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,&mdash;it is called the <i>soke</i>, 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<a name="FNanchor_846_846" id="FNanchor_846_846"></a><a href="#Footnote_846_846" class="fnanchor">[846]</a>. 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&mdash;twenty-three&mdash;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<a name="FNanchor_847_847" id="FNanchor_847_847"></a><a href="#Footnote_847_847" class="fnanchor">[847]</a>.<span class="pagenum"><a name="Page_392" id="Page_392">392</a></span>
+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.</p>
+
+<div class="sidenote">The Aston case.</div>
+
+<p>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 <i>Sixteen</i>, 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<a name="FNanchor_848_848" id="FNanchor_848_848"></a><a href="#Footnote_848_848" class="fnanchor">[848]</a>. It is the main point which<span class="pagenum"><a name="Page_393" id="Page_393">393</a></span>
+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&mdash;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.</p>
+
+<div class="sidenote">Manor and Township.</div>
+
+<p>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<a name="FNanchor_849_849" id="FNanchor_849_849"></a><a href="#Footnote_849_849" class="fnanchor">[849]</a>; 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<span class="pagenum"><a name="Page_394" id="Page_394">394</a></span>
+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.</p>
+
+<div class="sidenote">Township and Manor.</div>
+
+<p>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<a name="FNanchor_850_850" id="FNanchor_850_850"></a><a href="#Footnote_850_850" class="fnanchor">[850]</a>. 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<span class="pagenum"><a name="Page_395" id="Page_395">395</a></span>
+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<a name="FNanchor_851_851" id="FNanchor_851_851"></a><a href="#Footnote_851_851" class="fnanchor">[851]</a>. When township and tithing coincided, as
+in the case of Brightwaltham, the tithing gets opposed to
+the general court in the same way<a name="FNanchor_852_852" id="FNanchor_852_852"></a><a href="#Footnote_852_852" class="fnanchor">[852]</a>. 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<a name="FNanchor_853_853" id="FNanchor_853_853"></a><a href="#Footnote_853_853" class="fnanchor">[853]</a>.' 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.<span class="pagenum"><a name="Page_396" id="Page_396">396</a></span>
+The open field system appears in this connexion as outside
+the manor, and proceeding from the rural community by
+itself.</p>
+
+<p>Let us sum up the results obtained in this chapter.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p><hr class="chap" /><p><span class="pagenum"><a name="Page_397" id="Page_397">397</a></span></p>
+
+
+
+
+<h2><a name="CHAPTER_2_VI" id="CHAPTER_2_VI"></a>CHAPTER VI.</h2>
+
+<p class="center">THE MANOR AND THE VILLAGE COMMUNITY.</p>
+
+<p class="center"><i>Conclusions.</i></p>
+
+
+<p>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.<span class="pagenum"><a name="Page_398" id="Page_398">398</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_399" id="Page_399">399</a></span>
+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.</p>
+
+<p>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?</p>
+
+<p>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<span class="pagenum"><a name="Page_400" id="Page_400">400</a></span>
+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.</p>
+
+<p>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&mdash;these
+are the chief features of open-field husbandry, and all
+point to one source&mdash;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.</p>
+
+<p>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<span class="pagenum"><a name="Page_401" id="Page_401">401</a></span>
+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&mdash;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?</p>
+
+<p>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<span class="pagenum"><a name="Page_402" id="Page_402">402</a></span>
+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.</p>
+
+<p>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<span class="pagenum"><a name="Page_403" id="Page_403">403</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_404" id="Page_404">404</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>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.<span class="pagenum"><a name="Page_405" id="Page_405">405</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>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 <i>firma unius noctis</i>, 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 (<i>consuetudines villae</i>), 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.</p><p><span class="pagenum"><a name="Page_406" id="Page_406">406</a></span></p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_407" id="Page_407">407</a></span>
+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.</p>
+
+<p>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.<span class="pagenum"><a name="Page_408" id="Page_408">408</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_409" id="Page_409">409</a></span>
+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.</p><hr class="chap" /><p><span class="pagenum"><a name="Page_410" id="Page_410"></a><br /><a name="Page_411" id="Page_411"></a></span></p>
+
+
+
+
+<h2><a name="APPENDIX" id="APPENDIX"></a>APPENDIX.</h2>
+
+<hr class="r5" />
+
+<h3><a name="APPENDIX_I" id="APPENDIX_I"></a>I.</h3>
+
+<p class="center"><a href="#Footnote_47_47">See p. 52, n. 2.</a></p>
+
+<p class="center">[Y.B. Pasch. 1 Edw. II, pl. 4. f. 4.]</p>
+
+<div class="sidenote">Trans.</div>
+
+<p>Symon de Paris porta breve de transgression vers <i>H.</i> bailliffe sire
+Robert Tonny et plusours autres, et se pleint, qe <i>W.</i> et <i>H.</i> certein
+jour luy pristrent et emprisonerent etc. a tort encountre la pees
+etc. <i>Pass</i> 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 <i>S.</i> si est villeine lavandit <i>R.</i> qi bailliffe yl
+est, et fuist trove a <i>N.</i> en soun mes, le quel vint a lui tendist office
+de Provoist et il la refusa et ne se voilleit justicier etc. <i>Tond.</i>
+rehercea le avowery, et dit qe a cele avowery ne doit il estre
+resceve pur ceo qe <i>S.</i> 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.
+<i>Herle.</i> A ceo qil dient qil est citezen de Londre nous navoms qe
+faire, mes nous vous dioms, qil est villein <i>R.</i> de Eve et de Treve,
+et les Auncestres Ael et Besayel et toux ces Auncestres ses <i>terres
+tennantz deinz le manoire de N.</i> et ces Auncestres seisitz des villeins
+services des Auncestres <i>S.</i> come affaire Rechat de Char et de Sank
+et de fille marier, et de euz tailler haut et bas, <i>etc.</i>, 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. <i>Tond.</i> Fraunc homme et de
+fraunc estat et eux nient seisi de luy, come de lour villein prest etc.
+<i>Ber.</i> Jeo ai oi dire qe un homme fuist prist en la bordel, et fuist<span class="pagenum"><a name="Page_412" id="Page_412">412</a></span>
+prist et pendu, et sil eust demorre a lostiel, il neust en nul mal <i>etc.</i>
+auxient de ceste parte, sil eust este fraunc Citezen pur qe neust il
+demorre en la Citee? <i>Ad alium diem</i>; <i>Tond.</i> se tient qil ne fuist
+seisi de lui come de soun villein ne de ses villeins services etc.
+<i>Pass.</i> 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. <i>Ber.</i> Vous pledietz sour la seisine, et il pleident
+sour le droit issint naverrez james bon issue de plee. <i>Herle.</i> Seisi
+en la fourme qe nous avoms dit. <i>Ber.</i> La Court ne restreinera tiel
+travers sanz ceo qe vous dietz, que vous estez seisitz de lui <i>come de
+vostre villein et de ses villeinz services</i>, et sic fecit. <i>Et alii e contra.</i></p>
+
+
+<h3><a name="APPENDIX_II" id="APPENDIX_II"></a>II.</h3>
+
+<p class="center"><a href="#Footnote_52_52">See p. 54, n. 1.</a></p>
+
+<p class="center">[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.]</p>
+
+<div class="sidenote">Sur l'estatut de labourer.</div>
+
+
+<p>Le servant suit par attorney, et le Master in propre persone.
+Que dit qe le servant fuit soun villein regardant al Manoire de <i>C.</i>
+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 <i>etc.</i>
+tort in nostre party par tiel reteignement puit assigner. <i>Et nota</i>,
+qil fist protestacion, qil ne conust pas qil fuit in le service le
+plaintiffe etc. <i>Et nota</i>, 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. <i>Burt.</i>
+Le servant est par attorney, qe ne puit par soun ple faire sans
+Master villein. Purqe ceo ple ne gist in soun bouche. <i>Et non
+allocatur</i> par <i>Wilb.</i> 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. <i>Et alii e contra.</i> <i>Et
+nota</i>, 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.
+<i>Sed Burt. negavit</i>, eo qe ce vient de sa folie qil voilleit faire covenant
+dautre servir, qant il fuit appris qil fuit autry villein. <i>Et ideo quere.</i><span class="pagenum"><a name="Page_413" id="Page_413">413</a></span>
+Qant al' plea le Master <i>Burt.</i> challange ceo qil navoit pas
+alleger qil fuit seisi de luy come de soun villein. <i>Et non allocator</i>
+par <i>Wilb.</i> Qui dit, sil soit soun villein, soun plee est assez fort: car
+seisi et nient seisi ne fera pas issue.<span class="sidenote">Op. Curiae.</span> <i>Et sic nota.</i> Puis <i>Burt.</i> dit
+que l'on allege est quil est soun villein regardant a soun manoire de
+<i>C.</i> nous dioms qe mesme le manoire fuit in le seisin un <i>A.</i> 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 <i>A.</i> 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. <i>Finch.</i> Et nous Jugement, depuis qil ne dedit pas qil
+nest nostre villein de nostre manoire de <i>C.</i> et le quel nous fuit
+seisis de luy devant, ou non, ou nostre feffor seisi, <i>etc.</i> ou ce ne
+puit my estre a purpose: car il alast alarge, purtant ne fuit il
+enfranchy. Purque <i>etc.</i> <i>Th.</i> 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 <i>etc.</i>
+<i>Jer.</i> 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. <i>Th.</i> 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 <i>xx</i> ou <i>xxx</i> 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, <i>causa ut
+supra</i>. <i>Gr.</i> Per mesme le reason qe vous luy purrets retenir
+tanque al' fine de terme, si poit un autre: <i>et sic de singulis, et sic
+in infinitum</i>: issint le Seignour ouste de soun villein a toujours, et
+ce ne seroit pas reason. Puis <i>Th.</i> n'osa pas demurrer; mes dit
+qil ne fuit pas soun villein de soun manoire de <i>C.</i> Prest etc. <i>Fiff.</i>
+Ceo n'est pas respons:<span class="sidenote">Op. Curiae.</span> <i>car coment qil nest pas soun villein del'
+manoire, etc. sil fuit soun villein in gros, asses suffist</i>. <i>Et non
+allocatur</i> pur ce quel avoit traverse soun respons in le manere come
+ce fuit livere, etc.</p><p><span class="pagenum"><a name="Page_414" id="Page_414">414</a></span></p>
+
+
+<p class="center">Common Pleas Roll (Record Office).</p>
+
+<p class="center">[Trin. 29 E. III, r. 203, v. Oxon.]</p>
+
+<p>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<span class="pagenum"><a name="Page_415" id="Page_415">415</a></span>
+Prioris grave dampnum ac contra ordinacionem etc. unde dicit
+quod deteriorates est et dampnum habet ad valenciam viginti
+librorum. Et inde producit sectam.</p>
+
+<p>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
+<i>villanus suus ut de manerio suo de Chalgrave</i> 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 <i>dicit quod predictus Radulfus non est
+villanus ipsius Thome ut de manerio suo predicto</i> prout idem
+Thomas superius allegat. Et hoc petit quod inquiratur per patriam.
+Et predictus Thomas similiter. Preceptum etc.</p>
+
+
+<h3><a name="APPENDIX_III" id="APPENDIX_III"></a>III.</h3>
+
+<p class="center">See <a href="#Footnote_77_77">p. 66, n. 2.</a>, and <a href="#Footnote_103_103">p. 78, n. 2.</a></p>
+
+<p>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<span class="pagenum"><a name="Page_416" id="Page_416">416</a></span>
+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.</p>
+
+<p>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<a name="FNanchor_854_854" id="FNanchor_854_854"></a><a href="#Footnote_854_854" class="fnanchor">[854]</a>. Another boon consists in the<span class="pagenum"><a name="Page_417" id="Page_417">417</a></span>
+fact, that the trial must be reserved for the decision of the Royal
+Courts and cannot be entertained in the County<a name="FNanchor_855_855" id="FNanchor_855_855"></a><a href="#Footnote_855_855" class="fnanchor">[855]</a>. So far the
+Mirror falls in with the usual exposition of our Authorities&mdash;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.</p>
+
+<p>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<a name="FNanchor_856_856" id="FNanchor_856_856"></a><a href="#Footnote_856_856" class="fnanchor">[856]</a>. 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.</p>
+<p><span class="pagenum"><a name="Page_418" id="Page_418">418</a></span></p>
+<p>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<a name="FNanchor_857_857" id="FNanchor_857_857"></a><a href="#Footnote_857_857" class="fnanchor">[857]</a>.</p>
+
+<p>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<a name="FNanchor_858_858" id="FNanchor_858_858"></a><a href="#Footnote_858_858" class="fnanchor">[858]</a>, 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<a name="FNanchor_859_859" id="FNanchor_859_859"></a><a href="#Footnote_859_859" class="fnanchor">[859]</a>.</p>
+
+<p>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<a name="FNanchor_860_860" id="FNanchor_860_860"></a><a href="#Footnote_860_860" class="fnanchor">[860]</a>, and, what is more, he insists on the necessity
+of their being excluded from the system of frank-pledge, which<span class="pagenum"><a name="Page_419" id="Page_419">419</a></span>
+ought to be restricted entirely to free men<a name="FNanchor_861_861" id="FNanchor_861_861"></a><a href="#Footnote_861_861" class="fnanchor">[861]</a>. 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.</p>
+
+<p>The villain is no serf, in any sense of the word. He is a free
+man<a name="FNanchor_862_862" id="FNanchor_862_862"></a><a href="#Footnote_862_862" class="fnanchor">[862]</a>, his tenure is a free tenure<a name="FNanchor_863_863" id="FNanchor_863_863"></a><a href="#Footnote_863_863" class="fnanchor">[863]</a>. 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<a name="FNanchor_864_864" id="FNanchor_864_864"></a><a href="#Footnote_864_864" class="fnanchor">[864]</a>. 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<a name="FNanchor_865_865" id="FNanchor_865_865"></a><a href="#Footnote_865_865" class="fnanchor">[865]</a>. The author
+undoubtedly hits here on a point where the usual feudal theory<span class="pagenum"><a name="Page_420" id="Page_420">420</a></span>
+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.</p>
+
+<p>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&mdash;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<a name="FNanchor_866_866" id="FNanchor_866_866"></a><a href="#Footnote_866_866" class="fnanchor">[866]</a>. 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<a name="FNanchor_867_867" id="FNanchor_867_867"></a><a href="#Footnote_867_867" class="fnanchor">[867]</a>. It is needless again to point<span class="pagenum"><a name="Page_421" id="Page_421">421</a></span>
+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.</p>
+
+
+<h3><a name="APPENDIX_IV" id="APPENDIX_IV"></a>IV.</h3>
+
+<p class="center"><a href="#Footnote_133_133">See p. 87, n. 1.</a></p>
+
+<p class="center">[Coram Rege 10 Henry III, N. 26. m. 4. d.]</p>
+
+<p>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.</p>
+
+<p>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.</p><p><span class="pagenum"><a name="Page_422" id="Page_422">422</a></span></p>
+
+<p>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.</p>
+
+
+<h3><a name="APPENDIX_V" id="APPENDIX_V"></a>V.</h3>
+
+<p class="center"><a href="#Footnote_142_142">See p. 90, n. 4.</a></p>
+
+<p class="center">[De Banco Roll, Michaelmas, 15 Edw. II, m. 271.]</p>
+
+<p>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<span class="pagenum"><a name="Page_423" id="Page_423">423</a></span>
+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.</p>
+
+<p>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.&mdash;Suffolk&mdash;Inter terras Stigandi quas Willelmus Denvers
+servat in manu Regis.&mdash;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<span class="pagenum"><a name="Page_424" id="Page_424">424</a></span>
+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&mdash;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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+
+<p class="center"><a href="#Footnote_165_165">See p. 97, n. 2.</a></p>
+
+<p>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<span class="pagenum"><a name="Page_425" id="Page_425">425</a></span>
+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 (<a href="#Page_118">pp. 118 <i>et sqq.</i></a>). 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.</p>
+
+<p>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 <i>writ of right</i> 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&mdash;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 <i>Monstraverunt</i> 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.</p><p><span class="pagenum"><a name="Page_426" id="Page_426">426</a></span></p>
+
+
+<h3><a name="APPENDIX_VI" id="APPENDIX_VI"></a>VI.</h3>
+
+<p class="center"><a href="#Footnote_145_145">See p. 91, n. 3.</a></p>
+
+<p>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.</p>
+
+<p>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 <i>usque ad
+presens videlicet usque ad feriam quartam in festo Sancti Gregorii
+pape anno domini millesimo trecentesimo nonagesimo secundo</i>, 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.</p><p><span class="pagenum"><a name="Page_427" id="Page_427">427</a></span></p>
+
+<p>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.</p>
+
+
+<p class="center"><a href="#Footnote_230_230">See p. 116, n. 4.</a></p>
+
+<p>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 <i>qui sequitur pro Rege</i> dicunt
+quod, cum manerium de Stonle fuit antiquum dominicum domini
+Regis ... quilibet tenens ipsius manerii unam virgatam terre
+<i>consuevit reddere ipsi domino Regi per annum</i> 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 [<i>folio</i> 22] suas, scilicet pro una uirgata
+30 denarios et de maiori tenura plus et de minori minus. Et de
+totis assartis capit totum seruicium....</p>
+
+<p>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<span class="pagenum"><a name="Page_428" id="Page_428">428</a></span>
+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 ... [<i>folio</i> 23] Dicunt eciam quod
+idem Robertus de Canle coram iusticiariis domini Regis ultimo
+itinerantibus in comitatu isto tulit <i>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</i>.... Et ideo consideratum est, quod
+dominus Rex recuperet seysinam suam ... et predictus Alexander
+Hugo et alii sint <i>intendentes domino Regi et balliuis suis uel illis quibus
+dominus Rex eos dare voluerit</i>.... 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
+<i>octo virgatas terre de domino Rege et postea de Abbate de Stonle</i>
+[<i>folio</i> 23d] Anno regni Regis Henrici ... quinquagesimo primo ...
+<i>Dominus Rex habuit seysinam dicti hameletti per duas ebdomadas
+et deinde dominus Rex per vicecomitem suum posuit prefatum<span class="pagenum"><a name="Page_429" id="Page_429">429</a></span>
+Abbatem in plenam seysinam dicti hameletti de</i> Stonle die Sti Clementis
+eodem anno ad magnam crucem ville de Stonle.</p>
+
+
+<p class="center"><a href="#Footnote_231_231">See p. 117, n. 1.</a></p>
+
+<p>The Stoneleigh Register has the following entry on f. 12:
+Memorandum quod tempore fundacionis fuerunt in manerio de
+Stonle lx et xiij <i>villani</i> quatuor <i>bordarii</i> cum duobus presbyteris
+tenentes <i>xxx carucatas</i> terre prout continetur in libro de
+Domesday, fuerunt eciam tunc quatuor <i>natiui siue serui</i> in le lone
+(<i>sic</i>) 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 <i>quatuor liberi tenentes</i> 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....</p><p><span class="pagenum"><a name="Page_430" id="Page_430">430</a></span></p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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<span class="pagenum"><a name="Page_431" id="Page_431">431</a></span>
+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.</p>
+
+<p>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 <i>servi
+vel nativi</i>. 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&mdash;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.</p>
+
+
+<h3><a name="APPENDIX_VII" id="APPENDIX_VII"></a>VII.</h3>
+
+<p class="center"><a href="#Footnote_184_184">See p. 101, n. 5.</a></p>
+
+<p class="center">[County Placita, Norfolk, No. 5, 21 Ed. III.]</p>
+
+<p>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<span class="pagenum"><a name="Page_432" id="Page_432">432</a></span>
+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.</p>
+
+<p>Placita coram Domino Rege de termino Sancti Michaelis. Anno
+regni Regis Edwardi filii Regis Henrici xxj finiente incipiente
+xxii<sup>o</sup>.</p>
+
+<p>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<span class="pagenum"><a name="Page_433" id="Page_433">433</a></span>
+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.</p>
+
+<p>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<sup>o</sup> nec eciam aliqua tenementa tenent in praedicto Manerio
+nec tenuerunt die praedicto nec antea per magnum tempus unde
+petit iudicium etc.</p>
+
+<p>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<span class="pagenum"><a name="Page_434" id="Page_434">434</a></span>
+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<sup>o</sup> 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.</p>
+
+<p>[In dorso:]</p>
+
+<p>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<span class="pagenum"><a name="Page_435" id="Page_435">435</a></span>
+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.</p>
+
+
+<h3><a name="APPENDIX_VIII" id="APPENDIX_VIII"></a>VIII.</h3>
+
+<p class="center"><a href="#Footnote_189_189">See p. 104, n. 1.</a></p>
+
+<p class="center">[Exch. Memoranda Q.R. 20 Edw. I, Trin. m. 21 d.]</p>
+
+<p>Baronibus pro hominibus de manerio de Costeseye.</p>
+
+<p>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<sup>o</sup>.</p>
+
+<p><i>Peticio hominum de manerio de Costeseye.</i> 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<span class="pagenum"><a name="Page_436" id="Page_436">436</a></span>
+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.</p>
+
+
+<h3><a name="APPENDIX_IX" id="APPENDIX_IX"></a>IX.</h3>
+
+<p class="center"><a href="#Footnote_203_203">See p. 108, n. 1.</a></p>
+
+<p class="center">[Augmentation Court Rolls, XIV. 38.]</p>
+
+<p class="center">(Havering atte Bower, Essex.)</p>
+
+<p>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.</p>
+
+<p>Hec est finalis concordia facta in curia Thome archiepiscopi<span class="pagenum"><a name="Page_437" id="Page_437">437</a></span>
+Cantuar et Edwardi Comitis Roteland apud Hauering atte Boure&mdash;coram
+Ricardo Wytl ... tunc senescallo et Ricardo Wylde tunc
+ballivo et aliis domini Regis fidelibus tunc ibi presentibus inter
+etc.</p>
+
+<p>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.</p>
+
+<p>Inquisicio ex officio coram Ricardo Wythmerssh senescallo de
+Haueryng atte Boure per sacramentum Walteri Herstman&mdash;&mdash;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.</p>
+
+<p>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.</p>
+
+<p>Curia ibidem tenta die Iouis proxima post festum S. Martini
+anno r. r. Ricardi secundi post conquestum vicesimo primo.</p><p><span class="pagenum"><a name="Page_438" id="Page_438">438</a></span></p>
+
+<p>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.</p>
+
+<p>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 ... <i>Et dictum est pro domino
+Rege</i> 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<span class="pagenum"><a name="Page_439" id="Page_439">439</a></span>
+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.</p>
+
+<p>Curia ibidem tenta die Iouis in festo S. Iohannis Apostoli et
+Evangeliste anno r. r. Ricardi post Conquestum vicesimo primo.</p>
+
+<p>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....</p>
+
+<p>Curia tenta ibidem die Iouis proxima ... vicesimo tercio.</p>
+
+<p>Dominus Rex mandauit breue suum clausum Ballivis suis de
+Haueryng atte Boure.</p>
+
+<p>Curia ibidem tenta die Iouis proxima ante festum S. Laurencii
+martiris anno r. r. Ricardi secundi post conquestum vicesimo
+tercio....</p>
+
+<p>Ricardus Dei gratia Rex Anglie ... Ballivis suis de Haueryng,
+etc.</p>
+
+<p>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.</p><p><span class="pagenum"><a name="Page_440" id="Page_440">440</a></span></p>
+
+
+<h3><a name="APPENDIX_X" id="APPENDIX_X"></a>X.</h3>
+
+<p class="center"><a href="#Footnote_264_264">See p. 143, n. 3.</a></p>
+
+<p class="center">Exchequer Q.R. Ancient Miscellanea.</p>
+
+<p class="center">902/77 (No date, about 1300.)</p>
+
+
+
+<div class="center">
+<table border="0" cellpadding="2" cellspacing="0" summary="appendix x1">
+<tr><td align="left">Inquisitio:</td><td align="left">Will's Frere</td><td align="left">Walt's Michel</td><td align="left">Joh'es Broket</td><td class="brt">&nbsp;</td></tr>
+<tr><td align="left"></td><td align="left">Rob's Diaconus</td><td align="left">Elias de Leyes</td><td align="left">Thomas Coker</td><td class="liner">&nbsp;</td></tr>
+<tr><td align="left"></td><td align="left">Rob's Snellyng</td><td align="left">Elias Pany</td><td align="left">Will's Hardyng</td><td class="liner">&nbsp;</td></tr>
+<tr><td align="left"></td><td align="left">Joh'es Longus</td><td align="left">Godefrid' Newman</td><td align="left">Will's Walysce</td><td class="liner">&nbsp;</td></tr>
+<tr><td align="left" colspan="3"></td><td align="left">Joh'es Ordmar</td><td class="brb">&nbsp;</td></tr>
+</table></div>
+
+<p class="center">Qui dicunt subscripta per sacramentum suum.</p>
+
+<div class="center">
+<table border="0" cellpadding="2" cellspacing="0" summary="appendix x2">
+<tr><td colspan="4" rowspan="10"></td><td class="liner" rowspan="9">&nbsp;</td><td class="blt">&nbsp;</td><td align="left" rowspan="2">Maur' ate Neuthon'</td><td class="brb">&nbsp;</td><td class="blt">&nbsp;</td><td align="left" rowspan="2">
+ <table border="0" cellpadding="2" cellspacing="0" summary="nest1"><tr><td>Estrelda</td><td class="brt">&nbsp;</td><td class="linel" rowspan="2">&nbsp;</td><td rowspan="2">man' apud Machynge</td></tr>
+ <tr><td align="left">Agnes</td><td class="brb">&nbsp;</td></tr></table></td></tr>
+<tr><td class="linel" rowspan="18">&nbsp;</td><td class="brt">&nbsp;</td><td class="blb">&nbsp;</td></tr>
+<tr><td rowspan="2"></td><td>&nbsp;</td></tr>
+<tr><td class="brb">&nbsp;</td><td class="blt">&nbsp;</td><td align="left" rowspan="3">
+ <table border="0" cellpadding="2" cellspacing="0" summary="nest2">
+ <tr><td align="left">Joh'es Rotlonde</td><td class="brt">&nbsp;</td><td class="linel" rowspan="3">&nbsp;</td><td rowspan="3">man' London'.</td></tr>
+ <tr><td align="left">Walt's Rotlonde</td><td class="liner">&nbsp;</td></tr>
+ <tr><td align="left">Thomas Rotlonde</td><td class="brb">&nbsp;</td></tr></table></td></tr>
+<tr><td align="left">Joh'es Rotlonde</td><td class="brt">&nbsp;</td><td class="linel">&nbsp;</td></tr>
+<tr><td rowspan="4"></td><td class="liner">&nbsp;</td><td class="blb">&nbsp;</td></tr>
+<tr><td>&nbsp;</td></tr>
+<tr><td class="liner">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Joh'es Pany</td></tr>
+<tr><td class="brb">&nbsp;</td><td class="linel" rowspan="3">&nbsp;</td><td align="left">Will's Pany</td></tr>
+<tr><td class="brb">&nbsp;</td><td align="left" rowspan="2">Will's Pany</td><td class="brt">&nbsp;</td><td align="left">Ric's Pany</td></tr>
+<tr><td align="right">Nativus&mdash;</td><td class="liner" rowspan="11">&nbsp;</td><td class="blt">&nbsp;</td><td align="left" rowspan="2">Nich's ate Neuthon'</td><td class="brt">&nbsp;</td><td class="liner" rowspan="2">&nbsp;</td><td align="left">Elias Pany&mdash;modo tenens</td></tr>
+<tr><td rowspan="8"></td><td class="linel" rowspan="20">&nbsp;</td><td class="liner" rowspan="9">&nbsp;</td><td></td><td class="blb">&nbsp;</td><td align="left">Agnes Pany</td></tr>
+<tr><td rowspan="9"></td><td align="left">Simon ate Neuthon'</td><td>.</td><td>.</td><td align="left">nullus ab eo.</td></tr>
+<tr><td></td><td class="liner">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Ric's le Couper</td></tr>
+<tr><td align="left" rowspan="2">Thomas le Couper</td><td class="brb">&nbsp;</td><td class="linel" rowspan="2">&nbsp;</td><td align="left">Simon le Couper</td></tr>
+<tr><td class="brt">&nbsp;</td><td align="left">Jo&#x0127;es le Couper</td></tr>
+<tr><td></td><td class="liner">&nbsp;</td><td class="blb">&nbsp;</td><td align="left">Isabella la Couper</td></tr>
+<tr><td align="left">Joh'es Bate</td><td>.</td><td>.</td><td align="left">Walt's ate Neuthon'&mdash;modo tenens</td></tr>
+<tr><td align="left">Cristina</td><td>.</td><td>.</td><td align="left">Will's</td></tr>
+<tr><td align="right" rowspan="7">Pater extraneus<br />ignotus adhuc<br />propter diurnitatem<br />temporis</td><td class="blb">&nbsp;</td><td align="left">Wymarks</td><td>.</td><td>.</td><td align="left">nullus ab eo</td></tr>
+<tr><td>&nbsp;</td></tr>
+<tr><td class="brb">&nbsp;</td><td align="left" rowspan="3">Joh'es Woderove</td><td></td><td></td><td align="left" rowspan="3">Galfr's Woderove</td><td class="brb">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Will's Woderove</td></tr>
+<tr><td class="brt">&nbsp;</td><td>.</td><td>.</td><td class="brt">&nbsp;</td><td class="linel">&nbsp;</td><td align="left">n.</td></tr>
+<tr><td class="liner" rowspan="9">&nbsp;</td><td></td><td></td><td class="liner">&nbsp;</td><td class="blb">&nbsp;</td><td align="left">n.</td></tr>
+<tr><td align="left">Will's Vaccarius</td><td>.</td><td>.</td><td align="left" colspan="3">nullus ab eo</td></tr>
+<tr><td rowspan="6"></td><td rowspan="2" colspan="3"></td><td class="liner" rowspan="2">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Steph's Pistor</td></tr>
+<tr><td rowspan="5"></td><td class="linel" rowspan="4">&nbsp;</td><td align="left">Will's Pistor</td></tr>
+<tr><td class="liner" rowspan="3">&nbsp;</td><td class="blt">&nbsp;</td><td align="left" rowspan="2">Will's Pistor</td><td class="brb">&nbsp;</td><td align="left">Rog's Pistor</td></tr>
+<tr><td class="linel" rowspan="6">&nbsp;</td><td class="brt">&nbsp;</td><td align="left">Joh'es Pistor</td></tr>
+<tr><td></td><td class="liner" rowspan="2">&nbsp;</td><td align="left">Cristina Pistor</td></tr>
+<tr><td class="brb">&nbsp;</td><td></td><td class="blb">&nbsp;</td><td align="left">Isabella</td></tr>
+<tr><td align="right">Nativus&mdash;</td><td class="blb">&nbsp;</td><td align="left">Rog's ate Neuthon'</td><td class="brt">&nbsp;</td><td align="left">Cristina ate Neuthon'</td><td>.</td><td>.</td><td align="left">nullus ab eo (<i>sic</i>)</td></tr>
+<tr><td colspan="4" rowspan="5"></td><td class="liner" rowspan="3">&nbsp;</td><td></td><td class="liner">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Joh'es Broket</td></tr>
+<tr><td align="left" rowspan="2">Agnes ate Neuthon'</td><td class="brb">&nbsp;</td><td class="linel" rowspan="3">&nbsp;</td><td align="left">Joh'es Broket Junior</td></tr>
+<tr><td class="blb">&nbsp;</td><td class="brt">&nbsp;</td><td align="left">Matild' Broket</td></tr>
+<tr><td></td><td></td><td></td><td class="liner" rowspan="2">&nbsp;</td><td align="left">Isabella Broket</td></tr>
+<tr><td></td><td></td><td></td><td class="blb">&nbsp;</td><td align="left">Agnes Broket</td></tr>
+<tr><td align="right">Nativus&mdash;</td><td class="liner" rowspan="9">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Alanus ate Hache</td><td>.</td><td>.</td><td align="left" colspan="3">nullus ab eo</td></tr>
+<tr><td rowspan="8"></td><td class="linel" rowspan="21">&nbsp;</td><td rowspan="8"></td><td rowspan="5" colspan="3"></td><td class="liner" rowspan="4">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Ric's ate Hache Junior</td></tr>
+<tr><td class="linel" rowspan="9">&nbsp;</td><td align="left">Nich's ate Hache</td></tr>
+<tr><td align="left">Rog's ate Hache</td></tr>
+<tr><td align="left">Will's ate Hache</td></tr>
+<tr><td class="brb">&nbsp;</td><td align="left">Will's ate Hache</td></tr>
+<tr><td class="liner" rowspan="2">&nbsp;</td><td class="blt">&nbsp;</td><td align="left" rowspan="2">Adam ate Hache</td><td class="brt">&nbsp;</td><td align="left">Will's ate Hache</td></tr>
+<tr><td class="linel" rowspan="5">&nbsp;</td><td class="liner" rowspan="5">&nbsp;</td><td align="left">Joh'es ate Hache</td></tr>
+<tr><td class="brb">&nbsp;</td><td rowspan="4"></td><td align="left">Alic' ate Hache</td></tr>
+<tr><td align="right">Nativus&mdash;</td><td class="brb">&nbsp;</td><td align="left" rowspan="2">Rog's ate Hache</td><td class="brt">&nbsp;</td><td align="left">Matild' ate Hache</td></tr>
+<tr><td align="right" rowspan="2">Editha la Daye</td><td class="brt">&nbsp;</td><td class="liner" rowspan="3">&nbsp;</td><td align="left">Emmot' ate Hache</td></tr>
+<tr><td class="liner" rowspan="12">&nbsp;</td><td rowspan="2"></td><td class="blb">&nbsp;</td><td align="left">Marger' ate Hache</td></tr>
+<tr><td rowspan="10"></td><td class="blb">&nbsp;</td><td align="left">Matild' ate Hache</td><td>.</td><td>.</td><td align="left">nullus ab eo</td></tr>
+<tr><td align="left">Orgor' ate Hache</td><td>.</td><td>.</td><td align="left" colspan="3">nullus ab eo</td></tr>
+<tr><td rowspan="7"></td><td rowspan="3" colspan="3"></td><td class="liner" rowspan="2">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Will's ate Broke</td></tr>
+<tr><td class="linel" rowspan="5">&nbsp;</td><td align="left">Walt's ate Broke</td></tr>
+<tr><td class="brb">&nbsp;</td><td align="left">Walt's ate Broke</td></tr>
+<tr><td class="liner" rowspan="4">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Ranulfus ate Broke</td><td class="brt">&nbsp;</td><td align="left">Ric's ate Broke&mdash;London'</td></tr>
+<tr><td class="linel" rowspan="8">&nbsp;</td><td rowspan="5"></td><td class="liner" rowspan="3">&nbsp;</td><td align="left">Cristin' ate Broke</td></tr>
+<tr><td align="left">Matild' ate Broke</td></tr>
+<tr><td class="blb">&nbsp;</td><td align="left">Agnes ate Broke</td></tr>
+<tr><td align="left" rowspan="2">Walt's ate Hache</td><td class="brb">&nbsp;</td><td></td><td></td><td align="left">&nbsp;</td></tr>
+<tr><td align="right">Nativus&mdash;</td><td class="blb">&nbsp;</td><td class="brt">&nbsp;</td><td class="liner">&nbsp;</td><td class="blt">&nbsp;</td><td align="left">Walterus Mathy</td></tr>
+<tr><td colspan="4" rowspan="4"></td><td class="liner" rowspan="4">&nbsp;</td><td align="left" rowspan="2">Matheus ate Broke</td><td class="brb">&nbsp;</td><td class="linel" rowspan="2">&nbsp;</td><td align="left">Will's Mathy</td></tr>
+<tr><td class="brt">&nbsp;</td><td align="left">Agnes Mathy</td></tr>
+<tr><td></td><td class="liner">&nbsp;</td><td class="blb">&nbsp;</td><td align="left">Emmot' Mathy</td></tr>
+<tr><td class="blb">&nbsp;</td><td align="left">Mathild' ate Broke</td><td>.</td><td>.</td><td align="left">nullus ab ea.</td></tr>
+</table></div>
+
+
+
+
+<p><span class="pagenum"><a name="Page_441" id="Page_441">441</a></span></p>
+
+
+<h3><a name="APPENDIX_XI" id="APPENDIX_XI"></a>XI.</h3>
+
+<p class="center"><a href="#Footnote_391_391">See p. 188, n. 2.</a></p>
+
+<p>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.</p>
+
+<p>Both Ely Surveys&mdash;that of 1222 (Tiberius, B. ii) and that of
+1277 (Claudius, C. xi)&mdash;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.</p>
+
+<p>In the manor of Wilburton belonging to the Ely Minster we find
+the following classification of the tenantry<a name="FNanchor_868_868" id="FNanchor_868_868"></a><a href="#Footnote_868_868" class="fnanchor">[868]</a> [f. 49 sqq.]</p>
+
+
+<p class="center"><i>De hundredariis. Et libere tenentibus.</i></p>
+
+<p>Philippus de insula tenet 16 acras de mara et debet sectas ad
+curiam Elyensem et ad curiam de Wilbartone, <i>et in quolibet hundredo
+per totum annum</i>. 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<sup>ma</sup> 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.</p>
+
+<p>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....</p>
+<p><span class="pagenum"><a name="Page_442" id="Page_442">442</a></span></p>
+
+<p class="center"><i>De operariis et plenis terris.</i></p>
+
+<p>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.</p>
+
+
+<p class="p2">In Lyndon the division of the tenantry is somewhat more complex
+[f. 52 sqq.].</p>
+
+
+<p class="center"><i>De militibus.</i></p>
+
+<p>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<sup>ma</sup> ... Et
+dominus Philippus de Insula debet sectam ad curiam Elyensem.
+Et ad curiam de Lyndon, in aduentu senescalli.</p>
+
+<p>Nigellus de Cheucker tenet 2 carucatas terre per seruicium
+unius militis cum terra sua de Harefeud ... Et liberi tenentes sui
+<i>qui tenent per soccagium debent unam sectam ad frendlese hundred</i>,
+scilicet ad diem sabbati proximum post festum S<sup>ti</sup> Michaelis.</p>
+
+
+<p class="center"><i>De hundredariis.</i></p>
+
+<p>Robertus de Aula tenet 40 acras terre de wara per <i>seruicium
+sequendi curiam Elyensem</i>. <i>Et quodlibet hundredum et curiam de
+Lyndon</i>.... 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 <i>ueniet
+coram justiciariis ad custum suum proprium ... Et sciendum quod
+iste et quilibet hundredarius</i> 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.</p>
+
+<p>Galfridus le Sokeman tenet 12 acras et dimidiam de wara....</p>
+
+
+<p class="center"><i>De consuetudinariis qui vocantur Molmen.</i></p>
+
+<p>Patrik filius Henrici le frankeleyn tenet 10 acras terre in hylle
+pro duobus solidis ... Et ueniet ad precariam carucarum cum<span class="pagenum"><a name="Page_443" id="Page_443">443</a></span>
+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.</p>
+
+
+<p class="center"><i>De operariis qui tenent plenas terras.</i></p>
+
+<p>Radulfus filius Osbern tenet unam plenam terram que continet
+10 acras de wara.</p>
+
+
+<p class="p2">The next survey is that of Dudington (f. 63 sqq.).</p>
+
+
+<p class="center"><i>De libere tenentibus et hundredariis in Dudlingtone et
+Wimblingtone.</i></p>
+
+<p>(The typical hundredor is made to pay merchet, leyrwite, and
+heriet as above.)</p>
+
+
+<p class="center"><i>De consuetudinibus censuariorum in Dudingtone.</i></p>
+
+<p>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.</p>
+
+
+<p class="center"><i>De consuetudinibus operariorum in Dudington.</i></p>
+
+<p>(They hold 'full lands' of 12 acres, and perform all kinds of
+agricultural work.)</p>
+
+
+<p class="p2">If we turn now to the Survey of Wyvelingham (f. 111 sqq.), we
+shall not find the heading '<i>hundredarii</i>,' but it will not be difficult
+to discern the tenants who correspond to the hundredors of the
+former Surveys.</p>
+
+
+<p class="center"><i>De libere tenentibus.</i></p>
+
+<p>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.</p><p><span class="pagenum"><a name="Page_444" id="Page_444">444</a></span></p>
+
+<p>Willelmus Nuncius tenet dimidiam virgatam pro 18 denariis
+equaliter. Et faciet omnia alia sicuti predictus Henricus Torel.</p>
+
+<p>Thomas filius Oliue tenet unam virgatam terre pro 6 denariis
+equ. ad festum S<sup>ti</sup> 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 <i>debet sectam Comitatus hundredi, et curie</i>, et molendini. Oues
+sue iacebunt in faldo domini ut supra....</p>
+
+
+<p class="center"><i>De operariis.</i></p>
+
+<p>Thomas Wecheharm tenet dimidiam virgatam terre que continet
+15 acras terre.</p>
+
+
+<p class="p2">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.</p>
+
+
+<p class="center"><i>De militibus.</i></p>
+
+<p>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.</p>
+
+<p>Johannes filius Nicholai Collogne tenet dimidiam hydam terre
+<i>per seruicium sequendi comitatum et hundredum</i>. Idem tenet quartam
+partem curie sue pro uno niso (<i>sic</i>) uel duobus solidis....</p>
+
+
+<p class="p2">In Stratham the Molmen are reckoned with the freeholders and
+hundredors (f. 44).</p><p><span class="pagenum"><a name="Page_445" id="Page_445">445</a></span></p>
+
+
+<p class="center"><i>De libere tenentibus et censuariis.</i></p>
+
+<p>Walterus de Ely miles tenet 50 acras de wara unde debet sectam
+<i>ad curiam de Ely. Et ad curiam de Stratham. Et in hundredum
+de Wycheford</i>.... Et faciet omnes consuetudines sicut Johannes
+filius Henrici subscriptus.</p>
+
+<p>Johannes filius Henrici Folke tenet 10 acras de wara. Et debet
+<i>sectam hundredi per totum annum, scilicet ad quodlibet hundredum
+et sectam ad curiam de Ely et de Stratham</i>.... Et dabit gersumam
+pro filia sua maritanda.</p>
+
+
+<p class="center"><i>De consuetudinibus operariorum</i>, etc.</p>
+
+<p>The entries quoted are sufficient, it seems, to establish the
+following facts:&mdash;</p>
+
+<p>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.</p>
+
+<p>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.)</p>
+
+<p>3. A free tenant is not <i>eo ipso</i> a hundredor. Some holdings
+are singled out for the duty. (Henry Torel, William 'Nuncius,'
+and Thomas filius Olive in Wyvelingham. Cf. Lyndon.)</p>
+
+<p>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.)</p>
+
+<p>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 <i>territorial</i> system. But another conception is<span class="pagenum"><a name="Page_446" id="Page_446">446</a></span>
+lingering behind it&mdash;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 <i>personal</i> 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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>I. 180: Omnes liberi tenentes et quatuor homines et prepositus
+de Morton Valence subtraxerunt sectam ad turnum vicecomitis bis
+in anno ad idem hundredum.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>II. 131: Dicunt quod una decena de Borewyk et alia decena
+Chyletone cum liberis hominibus subtrahuntur de hundredo domini
+Regis de la Hane.</p><p><span class="pagenum"><a name="Page_447" id="Page_447">447</a></span></p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>I. 105: Villata de Monston per 2 annos et villata de Stratton
+per 10 annos subtraxerunt sectam hundredi.</p>
+
+<p>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 (<i>corr.</i> 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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>The inquest in the beginning of Edward I's reign gives us a
+very good insight into the inroads from which the organisation had<span class="pagenum"><a name="Page_448" id="Page_448">448</a></span>
+to suffer, especially in troubled times<a name="FNanchor_869_869" id="FNanchor_869_869"></a><a href="#Footnote_869_869" class="fnanchor">[869]</a>. 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.</p>
+
+<p>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.</p>
+
+<p>I. 143: Dicunt quod Johannes de Boneya tenuit quoddam tenementum
+in Stocke quod solet facere sectam ad comitatum et hundredum,<span class="pagenum"><a name="Page_449" id="Page_449">449</a></span>
+que secta postea subtracta fuit per Regem Alemanniae,
+etc.</p>
+
+<p>Was John de Boneya a socman bound to attend personally, or a
+hundredor, a hereditary representative of the village of Stocke?</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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).</p>
+
+<p>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.</p>
+
+<p>II. 66: Dicunt quod Rogerus Hunger de Preston solebat sequi
+comitatum et hundredum <i>pro villa de Preston</i> 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 (<i>corr.</i> subtraxit) predictam sectam 20<sup>ti</sup> annis elapsis
+nesciunt quo warranto, unde dominus Rex dampnificatus est per
+illam subtraxionem, si idem Abbas warrantum inde non habet de
+40 solidis.</p>
+
+<p>I. 21: Johannes de Grey subtraxit se de secta curie pro villata
+de Chilton de uno anno et die (<i>corr.</i> et dimidio), unde dominus
+Rex dampnificatus est in 18 denariis.</p><p><span class="pagenum"><a name="Page_450" id="Page_450">450</a></span></p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.)</p>
+
+
+<p class="center">Hundred Rolls, Oxford.</p>
+
+<p class="center">Chancery Series, No. 1, m. 3.</p>
+
+
+<div class="center">
+<table border="0" cellpadding="4" cellspacing="0" summary="Hundred Rolls">
+<tr>
+<td align="center" rowspan="2">§ Tenentes Abbatis in eadem.<br />
+§ Hundr' in Aston'.</td>
+<td class="liner">&nbsp;</td>
+<td class="blt">&nbsp;</td>
+<td align="left">§ Robertus le Caus tenet in eadem j. mesuagium et
+ij. virgatas terræ de Abbate de Eygn', et reddit per
+annum dicto Abbati Eygn' iij.<i>s.</i></td>
+</tr><tr>
+<td class="liner" rowspan="2">&nbsp;</td>
+<td class="linel" rowspan="2">&nbsp;</td>
+<td align="left">§ Stephanus le Niwe tenet in eadem j. mesuagium
+et ij. virgatas terræ de eodem, et reddit per annum
+dicto Abbati xv.<i>s.</i> vij.<i>d.</i> ob. q.</td>
+</tr><tr>
+<td>&nbsp;</td>
+<td align="left">§ 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.<i>d.</i></td>
+</tr><tr>
+<td align="center" rowspan="2">§ Servi.</td>
+<td class="brb">&nbsp;</td>
+<td class="linel">&nbsp;</td>
+<td align="left">§ Henricus Toni tenet in eadem j. mesuagium [et]
+j. virgatam terræ de Abbate de Eygn', et reddit
+eidem pro redditu iiij.<i>s.</i> pro opere iiij.<i>s.</i>
+iiij.<i>d.</i> ob. q.</td>
+</tr><tr>
+<td class="brt">&nbsp;</td>
+<td class="linel">&nbsp;</td>
+<td align="left">§ Willelmus Toni tenet in eadem j. mesuagium [et]
+j. virgatam terræ de dicto Abbate, et reddit per annum
+eidem pro redditu iiij.<i>s.</i>, pro opere iiij.<i>s.</i>
+ix.<i>d.</i> ob. q.</td>
+</tr><tr>
+<td rowspan="2">&nbsp;</td>
+<td class="liner">&nbsp;</td>
+<td class="linel">&nbsp;</td>
+<td align="left">§ Nicholaus Toni tenet in eadem consimile tenementum
+de eodem pro consimili servicio faciendo
+eidem.</td>
+</tr><tr>
+<td class="liner">&nbsp;</td>
+<td class="blb">&nbsp;</td>
+<td align="left">§ Emma Lovel tenet in eadem j. mesuagium et
+dimidiam virgatam terræ cum v. acras de eodem,
+et reddit per annum dicto Abbati xj.<i>s.</i> iij.<i>d.</i><span class="pagenum"><a name="Page_451" id="Page_451">451</a></span></td>
+</tr><tr>
+<td>&nbsp;</td>
+</tr><tr>
+<td align="center" rowspan="2">§ Lib[ere] tenentes.</td>
+<td class="brb">&nbsp;</td>
+<td class="blt">&nbsp;</td>
+<td align="left">§ Johanna Galard tenet in eadem dimidiam virgatam
+terræ de dono Willelmi fratris sui, et reddit
+eidem per annum vj.<i>d.</i>; et idem Willelmus tenet
+de hereditate per defensum antecessorum suorum,
+qui dictam dimidiam virgatam terrae habuerunt
+de dono Reg[is], cujus nomen ignoramus.</td>
+</tr><tr>
+<td class="brt">&nbsp;</td>
+<td class="blb">&nbsp;</td>
+<td align="left">§ 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.<i>d.</i></td>
+</tr>
+</table></div>
+
+<p class="center">[The Abbot above mentioned was the Abbot of Eynsham.]</p>
+
+<p>The <i>Hundr. in Aston</i> in the margin can hardly admit of
+any other extension but <i>hundredarius</i> or <i>hundredarii</i>. 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 <i>servi</i>, 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_452" id="Page_452">452</a></span>
+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.'</p>
+
+<p>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.</p>
+
+
+<h3><a name="APPENDIX_XII" id="APPENDIX_XII"></a>XII.</h3>
+
+<p class="center"><a href="#Footnote_413_413">See p. 199, n. 1.</a></p>
+
+<p>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 <i>per cartam</i>, 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.</p>
+
+<p>One of the questions addressed to the jurors&mdash;from whose
+verdicts the Hundred Rolls were made, was&mdash;Si aliquis liber
+sokemannus de antiquo dominico alii sokemanno vendiderit vel
+alio modo alienaverit aliquid tenendum libere per cartam<a name="FNanchor_870_870" id="FNanchor_870_870"></a><a href="#Footnote_870_870" class="fnanchor">[870]</a>? The
+<i>free</i> sokeman's tenure is meant, although the inquest is taken<span class="pagenum"><a name="Page_453" id="Page_453">453</a></span>
+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.</p>
+
+<p>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<a name="FNanchor_871_871" id="FNanchor_871_871"></a><a href="#Footnote_871_871" class="fnanchor">[871]</a>. 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.<a name="FNanchor_872_872" id="FNanchor_872_872"></a><a href="#Footnote_872_872" class="fnanchor">[872]</a>
+Robert de Aula holds two virgates of the Abbot of Ramsey <i>de
+antiquo conquestu</i> and seven virgates <i>de antiquo</i>. Further on a
+certain Robert Mariot is mentioned holding five virgates of Robert
+de Aula <i>de antiquo feffamento</i>. The weight falls, in all these expressions,
+on the <i>de antiquo</i>, which may even appear without any<span class="pagenum"><a name="Page_454" id="Page_454">454</a></span>
+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 <i>de conquestu</i> in contrast with the mesne tenants
+who are said to hold <i>per cartam</i>. 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<a name="FNanchor_873_873" id="FNanchor_873_873"></a><a href="#Footnote_873_873" class="fnanchor">[873]</a>.</p>
+
+<p>Another terminological opposition which finds expression in the
+surveys is that between men who hold <i>per homagium</i> and those
+who hold <i>per fidelitatem</i>. 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 <i>libere tenentes</i> are said to hold
+<i>per fidelitatem et nullum faciunt homagium</i><a name="FNanchor_874_874" id="FNanchor_874_874"></a><a href="#Footnote_874_874" class="fnanchor">[874]</a>. 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.</p>
+
+<p>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<span class="pagenum"><a name="Page_455" id="Page_455">455</a></span>
+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?</p>
+
+<p>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<a name="FNanchor_875_875" id="FNanchor_875_875"></a><a href="#Footnote_875_875" class="fnanchor">[875]</a>. 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<a name="FNanchor_876_876" id="FNanchor_876_876"></a><a href="#Footnote_876_876" class="fnanchor">[876]</a>. But can we say that the warranty of the lord is less
+prominent in this case than in the <i>liberum tenementum</i> 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<a name="FNanchor_877_877" id="FNanchor_877_877"></a><a href="#Footnote_877_877" class="fnanchor">[877]</a>.</p>
+
+<p><span class="pagenum"><a name="Page_456" id="Page_456">456</a></span></p><p>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&mdash;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<a name="FNanchor_878_878" id="FNanchor_878_878"></a><a href="#Footnote_878_878" class="fnanchor">[878]</a>. 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.'</p>
+<p><span class="pagenum"><a name="Page_457" id="Page_457">457</a></span></p>
+
+<h3><a name="APPENDIX_XIII" id="APPENDIX_XIII"></a>XIII.</h3>
+
+<p class="center"><a href="#Page_233">See pp. 233, 234.</a></p>
+
+<p>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).</p>
+
+<p class="center">Harl. MS. 1885, f. 7.</p>
+
+<p>§ 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<span class="pagenum"><a name="Page_458" id="Page_458">458</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>He terre prenominate sunt in campo qui dicitur Hestfeld.
+Summa, xix acre et tres rode.</p>
+
+
+<h3><a name="APPENDIX_XIV" id="APPENDIX_XIV"></a>XIV.</h3>
+
+<p class="center"><a href="#Footnote_666_666">See p. 302, n. 1.</a></p>
+
+<p class="center">Cotton MS. Galba E. X. f. 19.</p>
+
+<p>Hec est firma unius cuiusque uille que reddit plenam firmam
+duarum ebdomadarum.</p>
+
+<p>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<span class="pagenum"><a name="Page_459" id="Page_459">459</a></span>
+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.</p>
+
+<p>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.&mdash;Et 14 agni. Agnus pro denario&mdash;Et 120 galline, 6 pro
+den.&mdash;Et 2000 ovorum. Precium unius mille 2 sol. sunt.&mdash;Et 2 tine
+butiri. Precium unius tine 40 den.&mdash;Et 2 treie fabarum. Prec.
+1 treie 8 den. sunt. Et 24 misse prebende. Precium unius misse
+8 den.&mdash;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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+
+<h3><a name="APPENDIX_XV" id="APPENDIX_XV"></a>XV.</h3>
+
+<p class="center"><a href="#Footnote_756_756">See p. 344, n. 1.</a></p>
+
+<p>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<span class="pagenum"><a name="Page_460" id="Page_460">460</a></span>
+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 (<a href="#Page_453">sup. p. 453</a>).</p>
+
+<p>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 <i>virgatae operariae</i> and <i>virgatae positae ad censum</i>, the population
+is divided into <i>operarii</i> and <i>censuarii</i>, 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 <i>molmen</i>, and this would seem to imply that they
+were <i>libere tenentes</i> only in consequence of commutation.</p>
+
+<p>It seems to me that there is no occasion for such an inference.
+The <i>molmen</i> in the passage quoted are evidently the same as the
+<i>censuarii</i> of other passages, and although, in a general way, the
+expression <i>mal</i> was probably employed of quit-rents, still it was
+wide enough to interchange with <i>gafol</i>, and to designate all kinds
+of rents, without any regard to their origin. And of course, this
+is even more the case with <i>census</i>. 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.</p><hr class="chap" /><p><span class="pagenum"><a name="Page_461" id="Page_461">461</a></span></p>
+
+
+
+<h2><a name="INDEX" id="INDEX"></a>INDEX.</h2>
+
+
+<ul class="index">
+
+
+<li class="ifrst">Agreement as the origin of free tenure, <a href="#Page_335">335</a>;</li>
+<li class="isub1">between lord and village, <a href="#Page_359">359</a>.</li>
+
+<li class="indx">Akerman, <a href="#Page_147">147</a>.</li>
+
+<li class="indx">Amercement, <a href="#Page_163">163</a>.</li>
+
+<li class="indx">Ancient conquest, <a href="#Page_453">453</a>.</li>
+
+<li class="indx">Ancient demesne, definition, <a href="#Page_89">89</a>, <a href="#Page_90">90</a>;</li>
+<li class="isub1">privileges, <a href="#Page_92">92</a>;</li>
+<li class="isub1">tenantry, <a href="#Page_114">114</a>;</li>
+<li class="isub1">Saxon origin, <a href="#Page_123">123</a>, <a href="#Page_136">136</a>;</li>
+<li class="isub1">courts, <a href="#Page_379">379</a>.</li>
+
+<li class="indx">Ancient freehold, <a href="#Page_344">344</a>, <a href="#Page_352">352</a>.</li>
+
+<li class="indx">Anelipeman, <a href="#Page_213">213</a>.</li>
+
+<li class="indx">Approvement, <a href="#Page_273">273</a>.</li>
+
+<li class="indx">Assarts, <a href="#Page_332">332</a>.</li>
+
+<li class="indx">Assessment, <a href="#Page_244">244</a>.</li>
+
+<li class="indx">Assisa terra, <a href="#Page_333">333</a>.</li>
+
+<li class="indx">Aston and Cote, Oxon, <a href="#Page_392">392</a>, <a href="#Page_450">450</a>.</li>
+
+<li class="indx">Astrier, <a href="#Page_56">56</a>.</li>
+
+<li class="indx">Auxilium, <a href="#Page_293">293</a>.</li>
+
+<li class="indx">Averagium, <a href="#Page_285">285</a>, <a href="#Page_286">286</a>, <a href="#Page_309">309</a>.</li>
+
+<li class="indx">Aver-earth, <a href="#Page_280">280</a>.</li>
+
+<li class="indx">Aver-land, <a href="#Page_257">257</a>.</li>
+
+<li class="indx">Ayllington (Elton), Hunts, <a href="#Page_337">337</a>, <a href="#Page_460">460</a>.</li>
+
+
+<li class="ifrst">Bailiff, <a href="#Page_318">318</a>.</li>
+
+<li class="indx">Balk, <a href="#Page_232">232</a>.</li>
+
+<li class="indx">Barlick-silver, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Beadle, <a href="#Page_318">318</a>.</li>
+
+<li class="indx">Ben-earth, <a href="#Page_281">281</a>.</li>
+
+<li class="indx">Birth, influence on status, <a href="#Page_59">59</a>.</li>
+
+<li class="indx">Blackstone, view of English history, <a href="#Page_7">7</a>;</li>
+<li class="isub1">on copyholds, <a href="#Page_80">80</a>;</li>
+<li class="isub1">on ancient demesne tenure, <a href="#Page_112">112</a>.</li>
+
+<li class="indx">Board-lands, <a href="#Page_314">314</a>.</li>
+
+<li class="indx">Bockyng, Essex, <a href="#Page_315">315</a>.</li>
+
+<li class="indx">Bondus, <a href="#Page_145">145</a>.</li>
+
+<li class="indx">Boonwork, <a href="#Page_174">174</a>.</li>
+
+<li class="indx">Borda, <a href="#Page_256">256</a>.</li>
+
+<li class="indx">Bordarius, <a href="#Page_145">145</a>, <a href="#Page_149">149</a>.</li>
+
+<li class="indx">Borough English, <a href="#Page_82">82</a>, <a href="#Page_157">157</a>, <a href="#Page_185">185</a>.</li>
+
+<li class="indx">Bosing-silver, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Bovati, <a href="#Page_238">238</a>.</li>
+
+<li class="indx">Bracton, on villainage, <a href="#Page_47">47</a>;</li>
+<li class="isub1">on status, <a href="#Page_60">60</a>;</li>
+<li class="isub1">on convention between villain and lord, <a href="#Page_71">71</a>;</li>
+<li class="isub1">on waynage, <a href="#Page_74">74</a>;</li>
+<li class="isub1">on villain tenure and villain services, <a href="#Page_77">77</a>;</li>
+<li class="isub1">on villain socage, <a href="#Page_89">89</a>, <a href="#Page_115">115</a>, <a href="#Page_121">121</a>;</li>
+<li class="isub1">on rights of common, <a href="#Page_269">269</a>.</li>
+
+<li class="indx">Braseum, <a href="#Page_289">289</a>.</li>
+
+<li class="indx">Britton, on prescription, <a href="#Page_63">63</a>;</li>
+<li class="isub1">on the prohibition against devising villains, <a href="#Page_76">76</a>;</li>
+<li class="isub1">on privileged villainage, <a href="#Page_109">109</a>.</li>
+
+<li class="indx">Butta, <a href="#Page_232">232</a>.</li>
+
+
+<li class="ifrst">Campus, <a href="#Page_228">228</a>.</li>
+
+<li class="indx">Carriage duties, <a href="#Page_285">285</a>.</li>
+
+<li class="indx">Carta, <a href="#Page_199">199</a>, <a href="#Page_452">452</a>.</li>
+
+<li class="indx">Carucarius, <a href="#Page_147">147</a>.</li>
+
+<li class="indx">Censuarius, <a href="#Page_186">186</a>.</li>
+
+<li class="indx">Ceorls, Palgrave on, <a href="#Page_14">14</a>;</li>
+<li class="isub1">connexion with villains, <a href="#Page_135">135</a>;</li>
+<li class="isub1">history of the term, <a href="#Page_149">149</a>.</li>
+
+<li class="indx">Chevagium, <a href="#Page_157">157</a>.</li>
+
+<li class="indx">Churchscot, <a href="#Page_295">295</a>.</li>
+
+<li class="indx">Common, of pasture, <a href="#Page_263">263</a>;</li>
+<li class="isub1">appendant and appurtenant, <a href="#Page_265">265</a>;</li>
+<li class="isub1">intrinsec and forinsec, <a href="#Page_270">270</a>;</li>
+<li class="isub1">of wood, <a href="#Page_275">275</a>.</li>
+
+<li class="indx">Communal liability, <a href="#Page_357">357</a>.</li>
+
+<li class="indx">Communitas villanorum, <a href="#Page_359">359</a>.</li>
+
+<li class="indx">Commutation, <a href="#Page_179">179</a>, <a href="#Page_307">307</a>.</li>
+
+<li class="indx">Conquest, Norman, <a href="#Page_123">123</a>, <a href="#Page_130">130</a>, <a href="#Page_133">133</a>, <a href="#Page_135">135</a></li>
+
+<li class="indx">Conquest, Saxon, Palgrave on, <a href="#Page_13">13</a>;</li>
+<li class="isub1">Kemble on, <a href="#Page_18">18</a>;</li>
+<li class="isub1">Freeman on, <a href="#Page_22">22</a>;</li>
+<li class="isub1">Seebohm on, <a href="#Page_34">34</a>.</li>
+
+<li class="indx">Conveyancing, <a href="#Page_216">216</a>, <a href="#Page_371">371</a>.</li>
+
+<li class="indx">Copyhold, <a href="#Page_80">80</a>, <a href="#Page_115">115</a>, <a href="#Page_216">216</a>, <a href="#Page_310">310</a>.</li>
+
+<li class="indx">Cornage, <a href="#Page_295">295</a>.</li>
+
+<li class="indx">Cornbote, <a href="#Page_289">289</a>.</li>
+
+<li class="indx">Costeseye, Norfolk, <a href="#Page_435">435</a>.</li>
+
+<li class="indx">Cotland, <a href="#Page_256">256</a>.</li>
+
+<li class="indx">Cottarius, cotsetle, cottagiarius, <a href="#Page_148">148</a>.</li>
+
+<li class="indx">Court Baron, <a href="#Page_365">365</a>.</li>
+
+<li class="indx">Court leet, <a href="#Page_362">362</a>.</li>
+
+<li class="indx">Court of ancient demesne, <a href="#Page_378">378</a>.</li>
+
+<li class="indx">Court roll, <a href="#Page_173">173</a>, <a href="#Page_374">374</a>.</li>
+
+<li class="indx">Criminal law, <a href="#Page_64">64</a>.</li>
+
+<li class="indx">Curia, plena curia, <a href="#Page_375">375</a>, <a href="#Page_377">377</a>.</li>
+
+<li class="indx">Custom, <a href="#Page_172">172</a>, <a href="#Page_174">174</a>, <a href="#Page_181">181</a>, <a href="#Page_213">213</a>, <a href="#Page_297">297</a>.</li>
+
+<li class="indx">Custumarius, consuetudinarius, <a href="#Page_146">146</a>, <a href="#Page_170">170</a>.<span class="pagenum"><a name="Page_462" id="Page_462">462</a></span></li>
+
+
+<li class="ifrst">Day-work, <a href="#Page_288">288</a>.</li>
+
+<li class="indx">Defence, <a href="#Page_260">260</a>.</li>
+
+<li class="indx">Demesne, <a href="#Page_223">223</a>, <a href="#Page_313">313</a>;</li>
+<li class="isub1">free tenements carved out of it, <a href="#Page_327">327</a>;</li>
+<li class="isub1">its development, <a href="#Page_406">406</a>.</li>
+
+<li class="indx">Denerata, <a href="#Page_257">257</a>.</li>
+
+<li class="indx">Dialogus de Scaccario, on villainage, <a href="#Page_44">44</a>;</li>
+<li class="isub1">on Englishry, <a href="#Page_64">64</a>;</li>
+<li class="isub1">on the Conquest, <a href="#Page_121">121</a>, <a href="#Page_122">122</a>.</li>
+
+<li class="indx">Domesday Survey of Kent, <a href="#Page_205">205</a>;</li>
+<li class="isub1">on classes, <a href="#Page_209">209</a>.</li>
+
+<li class="indx">Donum, <a href="#Page_293">293</a>.</li>
+
+
+<li class="ifrst">Election of manorial officers, <a href="#Page_355">355</a>.</li>
+
+<li class="indx">Elton, C.I., on ancient demesne tenure, <a href="#Page_112">112</a>;</li>
+<li class="isub1">on shifting ownership of arable, <a href="#Page_236">236</a>.</li>
+
+<li class="indx">Ely Surveys, <a href="#Page_441">441</a>.</li>
+
+<li class="indx">Emphyteusis, <a href="#Page_333">333</a>.</li>
+
+<li class="indx">Enfranchisement, by feoffment, <a href="#Page_70">70</a>;</li>
+<li class="isub1">modes of manumission, <a href="#Page_86">86</a>;</li>
+<li class="isub1">by convention, <a href="#Page_183">183</a>;</li>
+<li class="isub1">as gradual emancipation, <a href="#Page_184">184</a>, <a href="#Page_214">214</a>.</li>
+
+<li class="indx">Essartum, <a href="#Page_332">332</a>.</li>
+
+<li class="indx">Exemption from labour, <a href="#Page_296">296</a>, <a href="#Page_322">322</a>.</li>
+
+<li class="indx">Extraneus, <a href="#Page_142">142</a>.</li>
+
+
+<li class="ifrst">Fald-silver, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Farm, feorm, <a href="#Page_301">301</a>, <a href="#Page_459">459</a>.</li>
+
+<li class="indx">Fastnyng-seed, <a href="#Page_282">282</a>.</li>
+
+<li class="indx">Fealty, <a href="#Page_164">164</a>, <a href="#Page_454">454</a>.</li>
+
+<li class="indx">Feoffment, <a href="#Page_347">347</a>, <a href="#Page_455">455</a>.</li>
+
+<li class="indx">Ferdel, <a href="#Page_256">256</a>.</li>
+
+<li class="indx">Ferlingsetus, <a href="#Page_148">148</a>.</li>
+
+<li class="indx">Festuca, <a href="#Page_372">372</a>.</li>
+
+<li class="indx">Feudalism, Kemble on, <a href="#Page_20">20</a>;</li>
+<li class="isub1">influence on villainage, <a href="#Page_131">131</a>;</li>
+<li class="isub1">oppression, <a href="#Page_204">204</a>.</li>
+
+<li class="indx">Field systems, <a href="#Page_224">224</a>.</li>
+
+<li class="indx">Filstnerthe, Filsingerthe, <a href="#Page_282">282</a>.</li>
+
+<li class="indx">Firmarius, <a href="#Page_305">305</a>.</li>
+
+<li class="indx">Fish-silver, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Fleta on the hide, <a href="#Page_241">241</a>.</li>
+
+<li class="indx">Fleyland, <a href="#Page_170">170</a>.</li>
+
+<li class="indx">Foddercorn, <a href="#Page_288">288</a>.</li>
+
+<li class="indx">Food-rents, <a href="#Page_304">304</a>.</li>
+
+<li class="indx">Forinsecus, <a href="#Page_142">142</a>.</li>
+
+<li class="indx">Forland, <a href="#Page_332">332</a>.</li>
+
+<li class="indx">Frank pledge, villains in, <a href="#Page_66">66</a>, <a href="#Page_418">418</a>;</li>
+<li class="isub1">and leet, <a href="#Page_363">363</a>.</li>
+
+<li class="indx">Free bench, <a href="#Page_160">160</a>.</li>
+
+<li class="indx">Freeman, Edw., <a href="#Page_22">22</a>.</li>
+
+<li class="indx">French Revolution, <a href="#Page_10">10</a>.</li>
+
+<li class="indx">Fustel de Coulanges, <a href="#Page_17">17</a>, <a href="#Page_32">32</a>.</li>
+
+
+<li class="ifrst">Gafol, <a href="#Page_184">184</a>, <a href="#Page_187">187</a>.</li>
+
+<li class="indx">Gafol-earth, <a href="#Page_280">280</a>.</li>
+
+<li class="indx">Gathercorn, <a href="#Page_289">289</a>.</li>
+
+<li class="indx">Gavelkind, <a href="#Page_207">207</a>.</li>
+
+<li class="indx">Gavelman, <a href="#Page_187">187</a>.</li>
+
+<li class="indx">Gavelseed, <a href="#Page_288">288</a>.</li>
+
+<li class="indx">Gebur, <a href="#Page_145">145</a>.</li>
+
+<li class="indx">Geneat, <a href="#Page_145">145</a>.</li>
+
+<li class="indx">Gersumarius, <a href="#Page_147">147</a>.</li>
+
+<li class="indx">Gild, <a href="#Page_293">293</a>.</li>
+
+<li class="indx">Glanville, on status, <a href="#Page_59">59</a>;</li>
+<li class="isub1">on manumission, <a href="#Page_87">87</a>.</li>
+
+<li class="indx">Gneist, R., <a href="#Page_24">24</a>.</li>
+
+<li class="indx">Godlesebene, <a href="#Page_282">282</a>.</li>
+
+<li class="indx">Gomme, on early folk-mots, <a href="#Page_367">367</a>.</li>
+
+<li class="indx">Gora, <a href="#Page_231">231</a>.</li>
+
+<li class="indx">Grass-earth, <a href="#Page_280">280</a>.</li>
+
+
+<li class="ifrst">Hale, Archdeacon, on the farm system, <a href="#Page_305">305</a>.</li>
+
+<li class="indx">Halimote, <a href="#Page_364">364</a>, <a href="#Page_370">370</a>.</li>
+
+<li class="indx">Hallam, his work on the Middle Ages, <a href="#Page_11">11</a>;</li>
+<li class="isub1">on villainage, <a href="#Page_48">48</a>.</li>
+
+<li class="indx">Hand-dainae, <a href="#Page_288">288</a>.</li>
+
+<li class="indx">Havering atte Bower, Essex, <a href="#Page_108">108</a>, <a href="#Page_436">436</a>.</li>
+
+<li class="indx">Headland, <a href="#Page_232">232</a>.</li>
+
+<li class="indx">Heriot, <a href="#Page_159">159</a>.</li>
+
+<li class="indx">Hidage, <a href="#Page_294">294</a>.</li>
+
+<li class="indx">Hide, <a href="#Page_239">239</a>, <a href="#Page_241">241</a>, <a href="#Page_244">244</a>;</li>
+<li class="isub1">Kemble on, <a href="#Page_19">19</a>.</li>
+
+<li class="indx">Hidarius, <a href="#Page_147">147</a>.</li>
+
+<li class="indx">Hitchin, Herts, <a href="#Page_394">394</a>.</li>
+
+<li class="indx">Holding, <a href="#Page_238">238</a>, <a href="#Page_241">241</a>, <a href="#Page_249">249</a>, <a href="#Page_263">263</a>, <a href="#Page_300">300</a>;</li>
+<li class="isub1">origin, <a href="#Page_401">401</a>.</li>
+
+<li class="indx">Homagium, <a href="#Page_455">455</a>.</li>
+
+<li class="indx">Hundred, <a href="#Page_67">67</a>, <a href="#Page_192">192</a>, <a href="#Page_445">445</a>.</li>
+
+<li class="indx">Hundredarius, <a href="#Page_188">188</a>, <a href="#Page_194">194</a>, <a href="#Page_441">441</a>, <a href="#Page_450">450</a>.</li>
+
+<li class="indx">Hundred Rolls, on merchet, <a href="#Page_154">154</a>;</li>
+<li class="isub1">on free tenements, <a href="#Page_336">336</a>.</li>
+
+<li class="indx">Huntenegeld, <a href="#Page_292">292</a>.</li>
+
+<li class="indx">Husfelds, <a href="#Page_314">314</a>.</li>
+
+
+<li class="ifrst">Inheritance, <a href="#Page_246">246</a>.</li>
+
+<li class="indx">Inhoc, <a href="#Page_226">226</a>.</li>
+
+<li class="indx">Inland, <a href="#Page_328">328</a>.</li>
+
+<li class="indx">Intermixture of strips, <a href="#Page_234">234</a>, <a href="#Page_254">254</a>, <a href="#Page_317">317</a>.</li>
+
+
+<li class="ifrst">Jugum, <a href="#Page_248">248</a>, <a href="#Page_309">309</a>.</li>
+
+<li class="indx">Juratores curiae, <a href="#Page_376">376</a>.</li>
+
+
+<li class="ifrst">Kemble, <a href="#Page_18">18</a>.</li>
+
+<li class="indx">Kentish custom, <a href="#Page_205">205</a>, <a href="#Page_248">248</a>.</li>
+
+<li class="indx">King's Ripton, Hunts, <a href="#Page_93">93</a>, <a href="#Page_106">106</a>, <a href="#Page_110">110</a>, <a href="#Page_383">383</a>.</li>
+
+
+<li class="ifrst">Labourers, hired, <a href="#Page_321">321</a>.</li>
+
+<li class="indx">Lammas-meadow, <a href="#Page_260">260</a>.</li>
+
+<li class="indx">Landchere, <a href="#Page_290">290</a>.</li>
+
+<li class="indx">Landgafol, <a href="#Page_292">292</a>.</li>
+
+<li class="indx">Landsettus, <a href="#Page_146">146</a>.</li>
+
+<li class="indx">Leases, of demesne land, <a href="#Page_329">329</a>;</li>
+<li class="isub1">for life and term of years, <a href="#Page_330">330</a>.</li>
+
+<li class="indx">Legal theory, <a href="#Page_44">44</a>, <a href="#Page_127">127</a>.</li>
+
+<li class="indx">Lentenearth, <a href="#Page_282">282</a>.<span class="pagenum"><a name="Page_463" id="Page_463">463</a></span></li>
+
+<li class="indx">Levingman, <a href="#Page_213">213</a>.</li>
+
+<li class="indx">Liberaciones, liberaturae, <a href="#Page_176">176</a>, <a href="#Page_322">322</a>.</li>
+
+<li class="indx">Liber homo, <a href="#Page_140">140</a>;</li>
+<li class="isub1">as suitor of halimote, <a href="#Page_389">389</a>.</li>
+
+<li class="indx">Libere tenens, <a href="#Page_140">140</a>, <a href="#Page_169">169</a>, <a href="#Page_178">178</a>, <a href="#Page_311">311</a>;</li>
+<li class="isub1">customary freeholder, <a href="#Page_220">220</a>, <a href="#Page_456">456</a>;</li>
+<li class="isub1">as overseer of labour, <a href="#Page_368">368</a>, <a href="#Page_407">407</a>;</li>
+<li class="isub1">subjected to the manorial arrangement, <a href="#Page_325">325</a>;</li>
+<li class="isub1">forinsecus, <a href="#Page_327">327</a>;</li>
+<li class="isub1">as suitor of halimote, <a href="#Page_386">386</a>.</li>
+
+<li class="indx">Linch, <a href="#Page_232">232</a>.</li>
+
+<li class="indx">Littleton, on villains regardant and in gross, <a href="#Page_49">49</a>.</li>
+
+<li class="indx">Lodland, <a href="#Page_257">257</a>.</li>
+
+<li class="indx">Lord, origin of his rights, <a href="#Page_151">151</a>;</li>
+<li class="isub1">amercements, <a href="#Page_163">163</a>;</li>
+<li class="isub1">control over villain land, will and pleasure, <a href="#Page_212">212</a>, <a href="#Page_297">297</a>;</li>
+<li class="isub1">as owner of the waste, <a href="#Page_272">272</a>;</li>
+<li class="isub1">equity, <a href="#Page_384">384</a>;</li>
+<li class="isub1">growth of his power, <a href="#Page_404">404</a>.</li>
+
+<li class="indx">Lundinarium, <a href="#Page_256">256</a>.</li>
+
+<li class="indx">Lurard, <a href="#Page_319">319</a>.</li>
+
+
+<li class="ifrst">Maine, Sir Henry, <a href="#Page_28">28</a>.</li>
+
+<li class="indx">Maitland, F.W., on John Fitz Geoffrey's case, <a href="#Page_98">98</a>;</li>
+<li class="isub1">on hundred and county courts, <a href="#Page_189">189</a>, <a href="#Page_192">192</a>;</li>
+<li class="isub1">on the leet, <a href="#Page_362">362</a>;</li>
+<li class="isub1">on the division of manorial courts, <a href="#Page_364">364</a>;</li>
+<li class="isub1">on manorial presentments, <a href="#Page_371">371</a>;</li>
+<li class="isub1">on court of honor, <a href="#Page_390">390</a>;</li>
+<li class="isub1">on the manor, <a href="#Page_395">395</a>.</li>
+
+<li class="indx">Mal, <a href="#Page_184">184</a>, <a href="#Page_187">187</a>.</li>
+
+<li class="indx">Malt-silver, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Manor, Blackstone's theory, <a href="#Page_8">8</a>, <a href="#Page_9">9</a>;</li>
+<li class="isub1">influence on status, <a href="#Page_57">57</a>, <a href="#Page_61">61</a>, <a href="#Page_85">85</a>;</li>
+<li class="isub1">general organisation, <a href="#Page_223">223</a>;</li>
+<li class="isub1">husbandry, <a href="#Page_316">316</a>;</li>
+<li class="isub1">in relation to the township, <a href="#Page_394">394</a>;</li>
+<li class="isub1">its elements, <a href="#Page_405">405</a>.</li>
+
+<li class="indx">Manuoperationes, <a href="#Page_287">287</a>.</li>
+
+<li class="indx">Mark, <a href="#Page_19">19</a>.</li>
+
+<li class="indx">Marriage, <a href="#Page_62">62</a>, <a href="#Page_139">139</a>.</li>
+
+<li class="indx">Martin of Bertenover <i>v.</i> John Montacute, <a href="#Page_78">78</a>.</li>
+
+<li class="indx">Maurer, G.F. von, <a href="#Page_26">26</a>.</li>
+
+<li class="indx">Maurer, Konrad, <a href="#Page_21">21</a>.</li>
+
+<li class="indx">Meadows, <a href="#Page_259">259</a>.</li>
+
+<li class="indx">Mederipe, <a href="#Page_283">283</a>.</li>
+
+<li class="indx">Men of Halvergate <i>v.</i> Roger Bigod, earl of Norfolk, <a href="#Page_431">431</a>.</li>
+
+<li class="indx">Men of King's Ripton <i>v.</i> Abbot of Ramsey, <a href="#Page_110">110</a>, <a href="#Page_425">425</a>.</li>
+
+<li class="indx">Men of Tavistock <i>v.</i> Henry of Tracy, <a href="#Page_119">119</a>.</li>
+
+<li class="indx">Men of Wycle <i>v.</i> Mauger le Vavasseur, <a href="#Page_102">102</a>, <a href="#Page_111">111</a>.</li>
+
+<li class="indx">Merchet, <a href="#Page_82">82</a>, <a href="#Page_153">153</a>, <a href="#Page_202">202</a>.</li>
+
+<li class="indx">Messarius, messor, <a href="#Page_319">319</a>.</li>
+
+<li class="indx">Ministeriales, <a href="#Page_319">319</a>, <a href="#Page_323">323</a>, <a href="#Page_406">406</a>.</li>
+
+<li class="indx">Mirror of justice, <a href="#Page_415">415</a>.</li>
+
+<li class="indx">Molland, <a href="#Page_183">183</a>.</li>
+
+<li class="indx">Molmen, <a href="#Page_183">183</a>.</li>
+
+<li class="indx">Mondayland, <a href="#Page_256">256</a>.</li>
+
+<li class="indx">Monopolies, manorial, <a href="#Page_163">163</a>.</li>
+
+<li class="indx">Monstraverunt, writ of, <a href="#Page_101">101</a>, <a href="#Page_104">104</a>, <a href="#Page_108">108</a>, <a href="#Page_110">110</a>, <a href="#Page_116">116</a>.</li>
+
+
+<li class="ifrst">Nasse, E., <a href="#Page_26">26</a>.</li>
+
+<li class="indx">Nativus, <a href="#Page_45">45</a>, <a href="#Page_142">142</a>, <a href="#Page_440">440</a>.</li>
+
+<li class="indx">Neat, niet, <a href="#Page_144">144</a>.</li>
+
+<li class="indx">Ne injuste vexes, writ of, <a href="#Page_420">420</a>.</li>
+
+<li class="indx">Nook, <a href="#Page_256">256</a>.</li>
+
+<li class="indx">Note-book of Bracton, on conventions of lord with villain, <a href="#Page_73">73</a>;</li>
+<li class="isub1">on Martin of Bestenover's case, <a href="#Page_79">79</a>;</li>
+<li class="isub1">on manumission, <a href="#Page_88">88</a>;</li>
+<li class="isub1">on the Tavistock case, <a href="#Page_119">119</a>.</li>
+
+<li class="indx">Nummata, <a href="#Page_257">257</a>.</li>
+
+
+<li class="ifrst">Oath of fealty, <a href="#Page_164">164</a>.</li>
+
+<li class="indx">Open field systems, <a href="#Page_225">225</a>, <a href="#Page_237">237</a>;</li>
+<li class="isub1">Nasse on, <a href="#Page_27">27</a>;</li>
+<li class="isub1">Seebohm on, <a href="#Page_231">231</a>;</li>
+<li class="isub1">origin, <a href="#Page_399">399</a>.</li>
+
+<li class="indx">Operarius, <a href="#Page_146">146</a>.</li>
+
+
+<li class="ifrst">Palgrave, Sir Francis, <a href="#Page_12">12</a>.</li>
+
+<li class="indx">Pannage, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Parvum breve de recto, <a href="#Page_94">94</a>, <a href="#Page_100">100</a>.</li>
+
+<li class="indx">Pasture, <a href="#Page_261">261</a>.</li>
+
+<li class="indx">Pedigree of villains, <a href="#Page_440">440</a>.</li>
+
+<li class="indx">Pell, O., on acrewara, <a href="#Page_242">242</a>.</li>
+
+<li class="indx">Penyearth, <a href="#Page_282">282</a>.</li>
+
+<li class="indx">Petitions to the King, <a href="#Page_102">102</a>.</li>
+
+<li class="indx">Ploughing work, <a href="#Page_278">278</a>.</li>
+
+<li class="indx">Plough team, <a href="#Page_238">238</a>, <a href="#Page_252">252</a>.</li>
+
+<li class="indx">Police, in relation to villainage, <a href="#Page_66">66</a>, <a href="#Page_139">139</a>.</li>
+
+<li class="indx">Pollock, Sir Frederic, on conventions with villains, <a href="#Page_72">72</a>.</li>
+
+<li class="indx">Precariae, <a href="#Page_281">281</a>, <a href="#Page_284">284</a>, <a href="#Page_308">308</a>.</li>
+
+<li class="indx">Prepositus, <a href="#Page_318">318</a>.</li>
+
+<li class="indx">Prescription, <a href="#Page_63">63</a>.</li>
+
+<li class="indx">Presentments in the halimote, <a href="#Page_368">368</a>.</li>
+
+<li class="indx">Prior of Hospitalers <i>v.</i> Ralph Crips and Thomas Barentyn, <a href="#Page_54">54</a>, <a href="#Page_412">412</a>.</li>
+
+<li class="indx">Prior of Ripley <i>v.</i> Thomas Fitz-Adam, <a href="#Page_83">83</a>.</li>
+
+<li class="indx">Prohibition against selling animals, <a href="#Page_156">156</a>.</li>
+
+
+<li class="ifrst">Quare ejecit infra terminum, writ of, <a href="#Page_330">330</a>.</li>
+
+<li class="indx">Quit-rent, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Quo jure, writ of, <a href="#Page_265">265</a>, <a href="#Page_270">270</a>.</li>
+
+
+<li class="ifrst">Radacre, <a href="#Page_282">282</a>.</li>
+
+<li class="indx">Reaping work, <a href="#Page_283">283</a>.</li>
+
+<li class="indx">Recognition, <a href="#Page_348">348</a>.</li>
+
+<li class="indx">Reeveship, <a href="#Page_157">157</a>.</li>
+
+<li class="indx">Regular arrangement, of villain holdings, <a href="#Page_334">334</a>, <a href="#Page_345">345</a>;</li>
+<li class="isub1">of free holdings, <a href="#Page_337">337</a>;</li>
+<li class="isub1">of socmen's holdings, <a href="#Page_349">349</a>.<span class="pagenum"><a name="Page_464" id="Page_464">464</a></span></li>
+
+<li class="indx">Relief, <a href="#Page_162">162</a>.</li>
+
+<li class="indx">Remuneration of servants, <a href="#Page_321">321</a>.</li>
+
+<li class="indx">Rent, <a href="#Page_181">181</a>, <a href="#Page_188">188</a>, <a href="#Page_215">215</a>;</li>
+<li class="isub1">trifling, <a href="#Page_290">290</a>;</li>
+<li class="isub1">of free tenants, <a href="#Page_342">342</a>.</li>
+
+<li class="indx">Revision of procedure, <a href="#Page_99">99</a>.</li>
+
+<li class="indx">Rofliesland, <a href="#Page_334">334</a>.</li>
+
+<li class="indx">Roger Fitz William <i>v.</i> Abbot of Bury St. Edmunds, <a href="#Page_422">422</a>.</li>
+
+<li class="indx">Rogers, J. Thorold, on legal theory, <a href="#Page_44">44</a>;</li>
+<li class="isub1">on manorial documents, <a href="#Page_138">138</a>.</li>
+
+<li class="indx">Roman influence, Palgrave's view, <a href="#Page_14">14</a>;</li>
+<li class="isub1">French scholars, <a href="#Page_16">16</a>;</li>
+<li class="isub1">Seebohm, <a href="#Page_33">33</a>.</li>
+
+<li class="indx">Rotation of crops, <a href="#Page_230">230</a>.</li>
+
+<li class="indx">Royal jurisdiction, <a href="#Page_219">219</a>.</li>
+
+
+<li class="ifrst">Scrutton, T.E., <a href="#Page_266">266</a>.</li>
+
+<li class="indx">Scutage, <a href="#Page_294">294</a>.</li>
+
+<li class="indx">Scythepenny, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Seebohm, F., <a href="#Page_32">32</a>.</li>
+
+<li class="indx">Segheho, Beds, <a href="#Page_233">233</a>, <a href="#Page_457">457</a>.</li>
+
+<li class="indx">Self-government, communal, <a href="#Page_355">355</a>, <a href="#Page_361">361</a>.</li>
+
+<li class="indx">Selio, <a href="#Page_231">231</a>.</li>
+
+<li class="indx">Seneschal, <a href="#Page_318">318</a>.</li>
+
+<li class="indx">Sequela, <a href="#Page_300">300</a>.</li>
+
+<li class="indx">Serfdom, <a href="#Page_43">43</a>, <a href="#Page_152">152</a>.</li>
+
+<li class="indx">Serland, <a href="#Page_257">257</a>.</li>
+
+<li class="indx">Servientes, <a href="#Page_320">320</a>.</li>
+
+<li class="indx">Services, implying villainage, <a href="#Page_82">82</a>;</li>
+<li class="isub1">uncertain, <a href="#Page_83">83</a>;</li>
+<li class="isub1">certain on ancient demesne, <a href="#Page_110">110</a>;</li>
+<li class="isub1">labour, <a href="#Page_167">167</a>, <a href="#Page_215">215</a>, <a href="#Page_305">305</a>.</li>
+
+<li class="indx">Servus, <a href="#Page_45">45</a>, <a href="#Page_141">141</a>.</li>
+
+<li class="indx">Shareholding, <a href="#Page_340">340</a>, <a href="#Page_347">347</a>.</li>
+
+<li class="indx">Sixteen of Aston and Cote, <a href="#Page_393">393</a>.</li>
+
+<li class="indx">Slavery, <a href="#Page_43">43</a>, <a href="#Page_47">47</a>.</li>
+
+<li class="indx">Socagium ad placitum, <a href="#Page_334">334</a>.</li>
+
+<li class="indx">Sockemanemot, <a href="#Page_365">365</a>.</li>
+
+<li class="indx">Soke, <a href="#Page_391">391</a>.</li>
+
+<li class="indx">Socmen, free, <a href="#Page_196">196</a>, <a href="#Page_204">204</a>, <a href="#Page_456">456</a>;</li>
+<li class="isub1">on ancient demesne, <a href="#Page_113">113</a>, <a href="#Page_197">197</a>, <a href="#Page_456">456</a>;</li>
+<li class="isub1">villain, <a href="#Page_89">89</a>, <a href="#Page_91">91</a>, <a href="#Page_199">199</a>;</li>
+<li class="isub1">nature of tenure, <a href="#Page_113">113</a>, <a href="#Page_116">116</a>.</li>
+
+<li class="indx">Solanda, <a href="#Page_255">255</a>.</li>
+
+<li class="indx">Status, <a href="#Page_83">83</a>.</li>
+
+<li class="indx">Statute of labourers, <a href="#Page_54">54</a>, <a href="#Page_412">412</a>.</li>
+
+<li class="indx">Statute of Merton, <a href="#Page_273">273</a>.</li>
+
+<li class="indx">Statute of Westminster II, <a href="#Page_273">273</a>, <a href="#Page_274">274</a>.</li>
+
+<li class="indx">Steward, <a href="#Page_318">318</a>, <a href="#Page_354">354</a>.</li>
+
+<li class="indx">Stoneleigh Abbey, <a href="#Page_91">91</a>, <a href="#Page_93">93</a>, <a href="#Page_105">105</a>, <a href="#Page_116">116</a>, <a href="#Page_381">381</a>, <a href="#Page_426">426</a>.</li>
+
+<li class="indx">Stubbs, W., <a href="#Page_23">23</a>.</li>
+
+<li class="indx">Suitors of halimote, <a href="#Page_370">370</a>;</li>
+<li class="isub1">in ancient demesne court, <a href="#Page_380">380</a>;</li>
+<li class="isub1">free, <a href="#Page_386">386</a>.</li>
+
+<li class="indx">Sulung, <a href="#Page_247">247</a>.</li>
+
+<li class="indx">Surrender and admittance, <a href="#Page_371">371</a>, <a href="#Page_455">455</a>.</li>
+
+<li class="indx">Symon of Paris <i>v.</i> H. bailiff of Sir R. Tonny, <a href="#Page_411">411</a>.</li>
+
+
+<li class="ifrst">Tallage, <a href="#Page_163">163</a>.</li>
+
+<li class="indx">Tenmanland, tunmanland, <a href="#Page_255">255</a>.</li>
+
+<li class="indx">Teutonic influence, Palgrave on, <a href="#Page_13">13</a>;</li>
+<li class="isub1">German scholars, <a href="#Page_17">17</a>;</li>
+<li class="isub1">Kemble, <a href="#Page_19">19</a>;</li>
+<li class="isub1">Freeman, <a href="#Page_22">22</a>;</li>
+<li class="isub1">Stubbs, <a href="#Page_23">23</a>;</li>
+<li class="isub1">Gneist, <a href="#Page_24">24</a>.</li>
+
+<li class="indx">Township, <a href="#Page_394">394</a>.</li>
+
+<li class="indx">Turnbedellus, <a href="#Page_329">329</a>.</li>
+
+<li class="indx">Tywe, <a href="#Page_282">282</a>.</li>
+
+
+<li class="ifrst">Undersette, <a href="#Page_213">213</a>.</li>
+
+<li class="indx">Unlawenearth, <a href="#Page_282">282</a>.</li>
+
+
+<li class="ifrst">Vagiator, <a href="#Page_319">319</a>.</li>
+
+<li class="indx">Village community, Nasse on, <a href="#Page_27">27</a>;</li>
+<li class="isub1">Maine, <a href="#Page_28">28</a>;</li>
+<li class="isub1">Seebohm, <a href="#Page_33">33</a>;</li>
+<li class="isub1">acting in the interest of the lord, <a href="#Page_355">355</a>;</li>
+<li class="isub1">acting independently of the lord, <a href="#Page_357">357</a>;</li>
+<li class="isub1">as a farmer, <a href="#Page_360">360</a>;</li>
+<li class="isub1">its relation to the manor, <a href="#Page_404">404</a>.</li>
+
+<li class="indx">Villain, sold, <a href="#Page_151">151</a>;</li>
+<li class="isub1">opposed to serf, <a href="#Page_419">419</a>;</li>
+<li class="isub1">civil disabilities, <a href="#Page_67">67</a>, <a href="#Page_159">159</a>,166;</li>
+<li class="isub1">free as to third persons, <a href="#Page_68">68</a>;</li>
+<li class="isub1">convention with the lord, <a href="#Page_70">70</a>, <a href="#Page_182">182</a>;</li>
+<li class="isub1">waynage, <a href="#Page_74">74</a>, <a href="#Page_420">420</a>;</li>
+<li class="isub1">not to be devised, <a href="#Page_76">76</a>;</li>
+<li class="isub1">claimed by kinship, <a href="#Page_84">84</a>, <a href="#Page_417">417</a>;</li>
+<li class="isub1">on ancient demesne, <a href="#Page_114">114</a>;</li>
+<li class="isub1">in manorial documents, <a href="#Page_140">140</a>, <a href="#Page_150">150</a>.</li>
+
+<li class="indx">Villainage, definitions, <a href="#Page_44">44</a>;</li>
+<li class="isub1">exception of, <a href="#Page_46">46</a>;</li>
+<li class="isub1">in gross and regardant, <a href="#Page_48">48</a>, <a href="#Page_411">411</a>, <a href="#Page_413">413</a>.</li>
+
+<li class="indx">Villain tenure, <a href="#Page_77">77</a>, <a href="#Page_165">165</a>;</li>
+<li class="isub1">free man holding in villainage, <a href="#Page_80">80</a>, <a href="#Page_81">81</a>, <a href="#Page_143">143</a>;</li>
+<li class="isub1">held by labour services, <a href="#Page_167">167</a>.</li>
+
+<li class="indx">Virga, <a href="#Page_173">173</a>, <a href="#Page_372">372</a>.</li>
+
+<li class="indx">Virgata, virgatarius, <a href="#Page_148">148</a>, <a href="#Page_238">238</a>.</li>
+
+
+<li class="ifrst">Walter of Henley, on field systems, <a href="#Page_225">225</a>;</li>
+<li class="isub1">on the hide, <a href="#Page_241">241</a>.</li>
+
+<li class="indx">Wara, <a href="#Page_242">242</a>.</li>
+
+<li class="indx">Ward-penny, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Waynage, <a href="#Page_74">74</a>, <a href="#Page_420">420</a>.</li>
+
+<li class="indx">Week-work, <a href="#Page_280">280</a>.</li>
+
+<li class="indx">William Fitz Henry <i>v.</i> Bartholomew Fitz Eustace, <a href="#Page_80">80</a>.</li>
+
+<li class="indx">William Fitz Robert <i>v.</i> John Cheltewynd, <a href="#Page_421">421</a>.</li>
+
+<li class="indx">William Taylor <i>v.</i> Roger of Sufford, <a href="#Page_73">73</a>.</li>
+
+<li class="indx">Wista, <a href="#Page_255">255</a>.</li>
+
+<li class="indx">Wood-penny, <a href="#Page_291">291</a>.</li>
+
+<li class="indx">Workman, <a href="#Page_186">186</a>.</li>
+
+<li class="indx">Wye, Kent, <a href="#Page_309">309</a>.</li>
+
+
+<li class="ifrst">Yerdling, <a href="#Page_148">148</a>.</li>
+
+<li class="indx">York Powell, F., on manumission, <a href="#Page_87">87</a>.</li>
+</ul>
+
+
+
+<div class="footnotes"><a name="FOOTNOTES" id="FOOTNOTES"></a><h3>FOOTNOTES:</h3>
+
+<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[2]</span></a> English Historical Review, No. 1.</p></div>
+
+<div class="footnote"><p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[3]</span></a> In his Considérations sur l'histoire de France.</p></div>
+
+<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> History of Boroughs.</p></div>
+
+<div class="footnote"><p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[5]</span></a> Ancient Rights of the Commons of England.</p></div>
+
+<div class="footnote"><p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">[6]</span></a> Quoted by Palgrave, English Commonwealth, i. 192, from the second
+edition of 1786. The first appeared in 1784.</p></div>
+
+<div class="footnote"><p><a name="Footnote_7_7" id="Footnote_7_7"></a><a href="#FNanchor_7_7"><span class="label">[7]</span></a> The first edition of the Commentaries appeared in 1765. I have been
+using that of 1800.</p></div>
+
+<div class="footnote"><p><a name="Footnote_8_8" id="Footnote_8_8"></a><a href="#FNanchor_8_8"><span class="label">[8]</span></a> '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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_9_9" id="Footnote_9_9"></a><a href="#FNanchor_9_9"><span class="label">[9]</span></a> Enquiry into the Rise and Progress of the Royal Prerogative, 1831.</p></div>
+
+<div class="footnote"><p><a name="Footnote_10_10" id="Footnote_10_10"></a><a href="#FNanchor_10_10"><span class="label">[10]</span></a> History of the English Commonwealth, 1832; Normandy and England,
+1840.</p></div>
+
+<div class="footnote"><p><a name="Footnote_11_11" id="Footnote_11_11"></a><a href="#FNanchor_11_11"><span class="label">[11]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_12_12" id="Footnote_12_12"></a><a href="#FNanchor_12_12"><span class="label">[12]</span></a> Histoire de la conquête de l'Angleterre par les Normands.</p></div>
+
+<div class="footnote"><p><a name="Footnote_13_13" id="Footnote_13_13"></a><a href="#FNanchor_13_13"><span class="label">[13]</span></a> Histoire du tiers état.</p></div>
+
+<div class="footnote"><p><a name="Footnote_14_14" id="Footnote_14_14"></a><a href="#FNanchor_14_14"><span class="label">[14]</span></a> Histoire du droit municipal.</p></div>
+
+<div class="footnote"><p><a name="Footnote_15_15" id="Footnote_15_15"></a><a href="#FNanchor_15_15"><span class="label">[15]</span></a> Prolégomènes au polyptyque de l'abbé Irminon.</p></div>
+
+<div class="footnote"><p><a name="Footnote_16_16" id="Footnote_16_16"></a><a href="#FNanchor_16_16"><span class="label">[16]</span></a> Histoire des institutions de la France; Recherches sur quelques problèmes
+d'histoire.</p></div>
+
+<div class="footnote"><p><a name="Footnote_17_17" id="Footnote_17_17"></a><a href="#FNanchor_17_17"><span class="label">[17]</span></a> Gregor von Tours und seine Zeit.</p></div>
+
+<div class="footnote"><p><a name="Footnote_18_18" id="Footnote_18_18"></a><a href="#FNanchor_18_18"><span class="label">[18]</span></a> Deutsche Verfassungsgeschichte.</p></div>
+
+<div class="footnote"><p><a name="Footnote_19_19" id="Footnote_19_19"></a><a href="#FNanchor_19_19"><span class="label">[19]</span></a> Geschichte des Beneficialwesens, 1856; Feudalität und Unterthanenverband,
+1863.</p></div>
+
+<div class="footnote"><p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[20]</span></a> Roth is very strong on this point.</p></div>
+
+<div class="footnote"><p><a name="Footnote_21_21" id="Footnote_21_21"></a><a href="#FNanchor_21_21"><span class="label">[21]</span></a> Ueber angelsächsische Rechtsverhältnisse, in the Munich Kritische
+Ueberschau, i. sqq. (1853).</p></div>
+
+<div class="footnote"><p><a name="Footnote_22_22" id="Footnote_22_22"></a><a href="#FNanchor_22_22"><span class="label">[22]</span></a> K. Maurer is very near Waitz in this respect.</p></div>
+
+<div class="footnote"><p><a name="Footnote_23_23" id="Footnote_23_23"></a><a href="#FNanchor_23_23"><span class="label">[23]</span></a> See especially his Englische Verfassungsgeschichte.</p></div>
+
+<div class="footnote"><p><a name="Footnote_24_24" id="Footnote_24_24"></a><a href="#FNanchor_24_24"><span class="label">[24]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_25_25" id="Footnote_25_25"></a><a href="#FNanchor_25_25"><span class="label">[25]</span></a> Collected in 2 volumes of Agrarhistorische Untersuchungen.</p></div>
+
+<div class="footnote"><p><a name="Footnote_26_26" id="Footnote_26_26"></a><a href="#FNanchor_26_26"><span class="label">[26]</span></a> Zur Geschichte der mittelalterlichen Feldgemeinschaft in England, 1869.</p></div>
+
+<div class="footnote"><p><a name="Footnote_27_27" id="Footnote_27_27"></a><a href="#FNanchor_27_27"><span class="label">[27]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_28_28" id="Footnote_28_28"></a><a href="#FNanchor_28_28"><span class="label">[28]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_29_29" id="Footnote_29_29"></a><a href="#FNanchor_29_29"><span class="label">[29]</span></a> The last great German work on our questions, Lamprecht, Deutsches
+Wirthschaftsleben im Mittelalter, is nearer Maurer than Sternegg.</p></div>
+
+<div class="footnote"><p><a name="Footnote_30_30" id="Footnote_30_30"></a><a href="#FNanchor_30_30"><span class="label">[30]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_31_31" id="Footnote_31_31"></a><a href="#FNanchor_31_31"><span class="label">[31]</span></a> Stubbs, Seventeen Lectures, 304, 305; Maitland, Introduction to the
+Note-book of Bracton, 4 sqq.</p></div>
+
+<div class="footnote"><p><a name="Footnote_32_32" id="Footnote_32_32"></a><a href="#FNanchor_32_32"><span class="label">[32]</span></a> Dial. de Scacc. ii. 10 (Select Charters, p. 222). Cf. i. 10; p. 192.</p></div>
+
+<div class="footnote"><p><a name="Footnote_33_33" id="Footnote_33_33"></a><a href="#FNanchor_33_33"><span class="label">[33]</span></a> Glanville, v. 5; Bracton, 4, 5; Fleta, i. 2; Britton, ed. Nichols, i. 194.</p></div>
+
+<div class="footnote"><p><a name="Footnote_34_34" id="Footnote_34_34"></a><a href="#FNanchor_34_34"><span class="label">[34]</span></a> 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 <i>servus</i>, <i>nativus</i>, and <i>villanus</i> (i. 195) has a
+different etymology in a marginal note to Bracton. 'Nativus dicitur a
+nativitate&mdash;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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_35_35" id="Footnote_35_35"></a><a href="#FNanchor_35_35"><span class="label">[35]</span></a> 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.&mdash;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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_36_36" id="Footnote_36_36"></a><a href="#FNanchor_36_36"><span class="label">[36]</span></a> 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.&mdash;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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_37_37" id="Footnote_37_37"></a><a href="#FNanchor_37_37"><span class="label">[37]</span></a> Note-book of Bracton, pl. 1237: 'dominus Rex non vult se de eis
+intromittere.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_38_38" id="Footnote_38_38"></a><a href="#FNanchor_38_38"><span class="label">[38]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_39_39" id="Footnote_39_39"></a><a href="#FNanchor_39_39"><span class="label">[39]</span></a> 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.
+</p>
+<p>
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_40_40" id="Footnote_40_40"></a><a href="#FNanchor_40_40"><span class="label">[40]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_41_41" id="Footnote_41_41"></a><a href="#FNanchor_41_41"><span class="label">[41]</span></a> Stubbs, Constitutional History, ii. 652, 654; Freeman, Norman Conquest,
+v. 477; Digby, Introduction to the Law of Real Property, 244.</p></div>
+
+<div class="footnote"><p><a name="Footnote_42_42" id="Footnote_42_42"></a><a href="#FNanchor_42_42"><span class="label">[42]</span></a> Sir Thomas Smith, The Commonwealth of England, ed. 1609, p. 123,
+shows that the notion of two classes corresponding to the Roman <i>servus</i> and
+the Roman <i>adscriptus glebae</i> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_43_43" id="Footnote_43_43"></a><a href="#FNanchor_43_43"><span class="label">[43]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_44_44" id="Footnote_44_44"></a><a href="#FNanchor_44_44"><span class="label">[44]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_45_45" id="Footnote_45_45"></a><a href="#FNanchor_45_45"><span class="label">[45]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_46_46" id="Footnote_46_46"></a><a href="#FNanchor_46_46"><span class="label">[46]</span></a> 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.'
+<i>Migg.</i>: 'defent tort et force, ou et quant il devera et dit qil fuist le vilein
+Labbe, per qi il ne deveroit estre resceve.' <i>Devom.</i>: 'il covient qe vous
+disez plus qe vous estes seisi, ut supra,' etc. <i>Migg.</i>: 'il est nostre vileyn, et
+nous seisi de luy come de nostre vileyn.' <i>Ber.</i>: 'Coment seisi come,' etc.?
+<i>Migg.</i>: '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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_47_47" id="Footnote_47_47"></a><a href="#FNanchor_47_47"><span class="label">[47]</span></a> 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 <i>in
+gross</i> and <i>regardant</i> existed. I give in <a href="#APPENDIX_I">App. I</a> the report of the interesting
+case quoted from 1 Edw. II.</p></div>
+
+<div class="footnote"><p><a name="Footnote_48_48" id="Footnote_48_48"></a><a href="#FNanchor_48_48"><span class="label">[48]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_49_49" id="Footnote_49_49"></a><a href="#FNanchor_49_49"><span class="label">[49]</span></a> Y.B. Hil. 14 Edw. II, f. 417: 'R. est bailli ... del manoir de Clifton
+... deins quel manoir cesti J. est villein.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_50_50" id="Footnote_50_50"></a><a href="#FNanchor_50_50"><span class="label">[50]</span></a> See <a href="#APPENDIX_I">App. I</a> and <a href="#APPENDIX_II">II.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_51_51" id="Footnote_51_51"></a><a href="#FNanchor_51_51"><span class="label">[51]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_52_52" id="Footnote_52_52"></a><a href="#FNanchor_52_52"><span class="label">[52]</span></a> Y.B. Trin. 29 Edw. III, f. 41. For the report of this case and the
+corresponding entry in the Common Pleas Roll, <a href="#APPENDIX_II">see Appendix II.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_53_53" id="Footnote_53_53"></a><a href="#FNanchor_53_53"><span class="label">[53]</span></a> Cf. Annals of Dunstaple, Ann. Mon. iii. 371: 'Quia astrarius eius fuit,'
+in the sense of a person living on one's land.</p></div>
+
+<div class="footnote"><p><a name="Footnote_54_54" id="Footnote_54_54"></a><a href="#FNanchor_54_54"><span class="label">[54]</span></a> Bracton, f. 267, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_55_55" id="Footnote_55_55"></a><a href="#FNanchor_55_55"><span class="label">[55]</span></a> 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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_56_56" id="Footnote_56_56"></a><a href="#FNanchor_56_56"><span class="label">[56]</span></a> Bracton, f. 190.</p></div>
+
+<div class="footnote"><p><a name="Footnote_57_57" id="Footnote_57_57"></a><a href="#FNanchor_57_57"><span class="label">[57]</span></a> Littleton, sect. 187. Cf. Fortescue, 'De laudibus legum Angliae,' c. 42.</p></div>
+
+<div class="footnote"><p><a name="Footnote_58_58" id="Footnote_58_58"></a><a href="#FNanchor_58_58"><span class="label">[58]</span></a> Littleton, sect. 188.</p></div>
+
+<div class="footnote"><p><a name="Footnote_59_59" id="Footnote_59_59"></a><a href="#FNanchor_59_59"><span class="label">[59]</span></a> Bracton, ff. 5, 193, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_60_60" id="Footnote_60_60"></a><a href="#FNanchor_60_60"><span class="label">[60]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_61_61" id="Footnote_61_61"></a><a href="#FNanchor_61_61"><span class="label">[61]</span></a> Mater certa est. Gai. Inst. i. 82.</p></div>
+
+<div class="footnote"><p><a name="Footnote_62_62" id="Footnote_62_62"></a><a href="#FNanchor_62_62"><span class="label">[62]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_63_63" id="Footnote_63_63"></a><a href="#FNanchor_63_63"><span class="label">[63]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_64_64" id="Footnote_64_64"></a><a href="#FNanchor_64_64"><span class="label">[64]</span></a> 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 <i>ny</i> ov ses chateux apres la mort de son baroun.' Bracton, f.
+26, 'Quasi avis in nido.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_65_65" id="Footnote_65_65"></a><a href="#FNanchor_65_65"><span class="label">[65]</span></a> Bract. Note-book, pl. 702: 'Nota quod libera femina maritata uillano non
+recuperat partem alicuius hereditatis quamdiu uillanus uixerit.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_66_66" id="Footnote_66_66"></a><a href="#FNanchor_66_66"><span class="label">[66]</span></a> 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 <i>vers le seignior</i> uiuant leur barons pur ce que ils sont villens.'
+Cf. Bracton, f. 202.</p></div>
+
+<div class="footnote"><p><a name="Footnote_67_67" id="Footnote_67_67"></a><a href="#FNanchor_67_67"><span class="label">[67]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_68_68" id="Footnote_68_68"></a><a href="#FNanchor_68_68"><span class="label">[68]</span></a> 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 <i>ayle</i> here to be a simple error for <i>ayl</i>
+or <i>ael</i>, grandfather.</p></div>
+
+<div class="footnote"><p><a name="Footnote_69_69" id="Footnote_69_69"></a><a href="#FNanchor_69_69"><span class="label">[69]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_70_70" id="Footnote_70_70"></a><a href="#FNanchor_70_70"><span class="label">[70]</span></a> Britton, i. 196, 206.</p></div>
+
+<div class="footnote"><p><a name="Footnote_71_71" id="Footnote_71_71"></a><a href="#FNanchor_71_71"><span class="label">[71]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_72_72" id="Footnote_72_72"></a><a href="#FNanchor_72_72"><span class="label">[72]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_73_73" id="Footnote_73_73"></a><a href="#FNanchor_73_73"><span class="label">[73]</span></a> Glanville, xiv. 1: 'Per ferrum callidum si fuerit homo liber, per aquam
+si fuerit rusticus.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_74_74" id="Footnote_74_74"></a><a href="#FNanchor_74_74"><span class="label">[74]</span></a> Lighter offences committed by the lord could not give rise to prosecution,
+but the <i>persona standi in iudicio</i> 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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_75_75" id="Footnote_75_75"></a><a href="#FNanchor_75_75"><span class="label">[75]</span></a> The lord had power over their property, but against everybody else they
+were protected by the criminal law.</p></div>
+
+<div class="footnote"><p><a name="Footnote_76_76" id="Footnote_76_76"></a><a href="#FNanchor_76_76"><span class="label">[76]</span></a> 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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_77_77" id="Footnote_77_77"></a><a href="#FNanchor_77_77"><span class="label">[77]</span></a> 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 <a href="#APPENDIX_III">Appendix III.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_78_78" id="Footnote_78_78"></a><a href="#FNanchor_78_78"><span class="label">[78]</span></a> <a href="#CHAPTER_1_VI">See below, Essay I. chap. vi.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_79_79" id="Footnote_79_79"></a><a href="#FNanchor_79_79"><span class="label">[79]</span></a> 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 <i>de religiosis</i>
+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 <i>Persey</i> 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.&mdash;<i>Wich.</i> 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.
+<i>Sanke</i>: 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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_80_80" id="Footnote_80_80"></a><a href="#FNanchor_80_80"><span class="label">[80]</span></a> 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 <i>Thorp.</i> dit
+que terre demurt terre tout temps, mes biens come boefs ou vache puit estre
+mange.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_81_81" id="Footnote_81_81"></a><a href="#FNanchor_81_81"><span class="label">[81]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_82_82" id="Footnote_82_82"></a><a href="#FNanchor_82_82"><span class="label">[82]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_83_83" id="Footnote_83_83"></a><a href="#FNanchor_83_83"><span class="label">[83]</span></a> 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 <i>feoffati fuerunt a conquestu Anglie</i> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_84_84" id="Footnote_84_84"></a><a href="#FNanchor_84_84"><span class="label">[84]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_85_85" id="Footnote_85_85"></a><a href="#FNanchor_85_85"><span class="label">[85]</span></a> A different view is taken by Stubbs, i. 484.</p></div>
+
+<div class="footnote"><p><a name="Footnote_86_86" id="Footnote_86_86"></a><a href="#FNanchor_86_86"><span class="label">[86]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_87_87" id="Footnote_87_87"></a><a href="#FNanchor_87_87"><span class="label">[87]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_88_88" id="Footnote_88_88"></a><a href="#FNanchor_88_88"><span class="label">[88]</span></a> 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, <i>sibi et haeredibus
+suis</i>. 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_89_89" id="Footnote_89_89"></a><a href="#FNanchor_89_89"><span class="label">[89]</span></a> The freehold would be given and still 'non recuperet per assisam no.
+diss. quia domino competit assisa et non villano.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_90_90" id="Footnote_90_90"></a><a href="#FNanchor_90_90"><span class="label">[90]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_91_91" id="Footnote_91_91"></a><a href="#FNanchor_91_91"><span class="label">[91]</span></a> The Cambridge MSS. have been inspected for me by Mr. Maitland.</p></div>
+
+<div class="footnote"><p><a name="Footnote_92_92" id="Footnote_92_92"></a><a href="#FNanchor_92_92"><span class="label">[92]</span></a> Comp. Bracton, f. 194 b: 'Quia ex quo mentionem fecit de heredibus
+praesumitur vehementer, quod dominus voluit servum esse liberum <i>quod
+quidem non esset, si de heredibus mentionem non fecerit</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_93_93" id="Footnote_93_93"></a><a href="#FNanchor_93_93"><span class="label">[93]</span></a> Bracton, f. 208 b: 'Est etiam villenagium non ita purum, sive concedatur
+libero homini <i>vel villano</i> 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 <i>manumissus vel alienatus</i>
+(<i>corr. alienus</i> 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 <i>villanum manumittere et feoffare</i>
+multo fortius poterit <i>ei quandam conventionem facere</i>, 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 '<i>villanus
+manumissus vel alienus</i>' correct, and lays stress on the fact, that personal
+condition does not matter in this case: that even though the tenant be free
+or <i>quoad</i> 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 <i>villanus (suus)</i> to <i>villanus alienus</i> and back to <i>villanus
+(suus)</i> without any intimation that the subject under discussion had been
+altered.</p></div>
+
+<div class="footnote"><p><a name="Footnote_94_94" id="Footnote_94_94"></a><a href="#FNanchor_94_94"><span class="label">[94]</span></a> 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?</p></div>
+
+<div class="footnote"><p><a name="Footnote_95_95" id="Footnote_95_95"></a><a href="#FNanchor_95_95"><span class="label">[95]</span></a> 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, <i>quia liberum tenementum in hoc casu non mutat statum</i>, 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
+<i>liberum tenementum</i> 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?</p></div>
+
+<div class="footnote"><p><a name="Footnote_96_96" id="Footnote_96_96"></a><a href="#FNanchor_96_96"><span class="label">[96]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_97_97" id="Footnote_97_97"></a><a href="#FNanchor_97_97"><span class="label">[97]</span></a> F.W. Maitland tells me, that Concanen's Report of <i>Rowe</i> v. <i>Brenton</i>
+describes <i>bond conventioners</i> in Cornwall.</p></div>
+
+<div class="footnote"><p><a name="Footnote_98_98" id="Footnote_98_98"></a><a href="#FNanchor_98_98"><span class="label">[98]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_99_99" id="Footnote_99_99"></a><a href="#FNanchor_99_99"><span class="label">[99]</span></a> See my article in the L.Q.R., i. 195.</p></div>
+
+<div class="footnote"><p><a name="Footnote_100_100" id="Footnote_100_100"></a><a href="#FNanchor_100_100"><span class="label">[100]</span></a> Bracton, f. 196-202.</p></div>
+
+<div class="footnote"><p><a name="Footnote_101_101" id="Footnote_101_101"></a><a href="#FNanchor_101_101"><span class="label">[101]</span></a> 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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_102_102" id="Footnote_102_102"></a><a href="#FNanchor_102_102"><span class="label">[102]</span></a> Spence, Equitable Jurisdiction, i. 136.</p></div>
+
+<div class="footnote"><p><a name="Footnote_103_103" id="Footnote_103_103"></a><a href="#FNanchor_103_103"><span class="label">[103]</span></a> 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 <a href="#APPENDIX_III">App. III.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_104_104" id="Footnote_104_104"></a><a href="#FNanchor_104_104"><span class="label">[104]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_105_105" id="Footnote_105_105"></a><a href="#FNanchor_105_105"><span class="label">[105]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_106_106" id="Footnote_106_106"></a><a href="#FNanchor_106_106"><span class="label">[106]</span></a> Bracton, f. 168.</p></div>
+
+<div class="footnote"><p><a name="Footnote_107_107" id="Footnote_107_107"></a><a href="#FNanchor_107_107"><span class="label">[107]</span></a> Ibid., f. 199 b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_108_108" id="Footnote_108_108"></a><a href="#FNanchor_108_108"><span class="label">[108]</span></a> Palgrave, Rotuli Curiae Regis, ii. 192.</p></div>
+
+<div class="footnote"><p><a name="Footnote_109_109" id="Footnote_109_109"></a><a href="#FNanchor_109_109"><span class="label">[109]</span></a> 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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_110_110" id="Footnote_110_110"></a><a href="#FNanchor_110_110"><span class="label">[110]</span></a> Bract. Note-book, pl. 88.</p></div>
+
+<div class="footnote"><p><a name="Footnote_111_111" id="Footnote_111_111"></a><a href="#FNanchor_111_111"><span class="label">[111]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_112_112" id="Footnote_112_112"></a><a href="#FNanchor_112_112"><span class="label">[112]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_113_113" id="Footnote_113_113"></a><a href="#FNanchor_113_113"><span class="label">[113]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_114_114" id="Footnote_114_114"></a><a href="#FNanchor_114_114"><span class="label">[114]</span></a> 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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_115_115" id="Footnote_115_115"></a><a href="#FNanchor_115_115"><span class="label">[115]</span></a> Bract, f. 200.</p></div>
+
+<div class="footnote"><p><a name="Footnote_116_116" id="Footnote_116_116"></a><a href="#FNanchor_116_116"><span class="label">[116]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_117_117" id="Footnote_117_117"></a><a href="#FNanchor_117_117"><span class="label">[117]</span></a> 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.'&mdash;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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_118_118" id="Footnote_118_118"></a><a href="#FNanchor_118_118"><span class="label">[118]</span></a> Bracton, f. 208 b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_119_119" id="Footnote_119_119"></a><a href="#FNanchor_119_119"><span class="label">[119]</span></a> Ibid., f. 200.</p></div>
+
+<div class="footnote"><p><a name="Footnote_120_120" id="Footnote_120_120"></a><a href="#FNanchor_120_120"><span class="label">[120]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_121_121" id="Footnote_121_121"></a><a href="#FNanchor_121_121"><span class="label">[121]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_122_122" id="Footnote_122_122"></a><a href="#FNanchor_122_122"><span class="label">[122]</span></a> Example&mdash;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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_123_123" id="Footnote_123_123"></a><a href="#FNanchor_123_123"><span class="label">[123]</span></a> Bracton, f. 199. The jury came in only by consent of the parties.</p></div>
+
+<div class="footnote"><p><a name="Footnote_124_124" id="Footnote_124_124"></a><a href="#FNanchor_124_124"><span class="label">[124]</span></a> Britton, i. 207; Fitzherbert, Abr. Villen. 37.</p></div>
+
+<div class="footnote"><p><a name="Footnote_125_125" id="Footnote_125_125"></a><a href="#FNanchor_125_125"><span class="label">[125]</span></a> Court Rolls of Havering atte Bower, Essex, Augment. Off. Rolls, xiv. 38.
+(Curia&mdash;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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_126_126" id="Footnote_126_126"></a><a href="#FNanchor_126_126"><span class="label">[126]</span></a> Fitzherbert, Abr. Villen. 32 (H. 19 Edw. II).</p></div>
+
+<div class="footnote"><p><a name="Footnote_127_127" id="Footnote_127_127"></a><a href="#FNanchor_127_127"><span class="label">[127]</span></a> Ibid. 5 (13 Edw. I).</p></div>
+
+<div class="footnote"><p><a name="Footnote_128_128" id="Footnote_128_128"></a><a href="#FNanchor_128_128"><span class="label">[128]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_129_129" id="Footnote_129_129"></a><a href="#FNanchor_129_129"><span class="label">[129]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_130_130" id="Footnote_130_130"></a><a href="#FNanchor_130_130"><span class="label">[130]</span></a> Bracton, 201; Britton, i. 202 sq.</p></div>
+
+<div class="footnote"><p><a name="Footnote_131_131" id="Footnote_131_131"></a><a href="#FNanchor_131_131"><span class="label">[131]</span></a> Bracton, f. 6, and on many other occasions.</p></div>
+
+<div class="footnote"><p><a name="Footnote_132_132" id="Footnote_132_132"></a><a href="#FNanchor_132_132"><span class="label">[132]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_133_133" id="Footnote_133_133"></a><a href="#FNanchor_133_133"><span class="label">[133]</span></a> 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. <a href="#APPENDIX_IV">See App. IV.</a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_134_134" id="Footnote_134_134"></a><a href="#FNanchor_134_134"><span class="label">[134]</span></a> Note-book, pl. 31, 343.</p></div>
+
+<div class="footnote"><p><a name="Footnote_135_135" id="Footnote_135_135"></a><a href="#FNanchor_135_135"><span class="label">[135]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_136_136" id="Footnote_136_136"></a><a href="#FNanchor_136_136"><span class="label">[136]</span></a> Note-book, pl. 1749: 'Iudicatum est quod liber sit quantum ad heredem
+manumittentis et non quantum ad alios, quod iudicium non est uerum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_137_137" id="Footnote_137_137"></a><a href="#FNanchor_137_137"><span class="label">[137]</span></a> Bracton, 209; cf. 7 and 200. Britton, ii. 13.</p></div>
+
+<div class="footnote"><p><a name="Footnote_138_138" id="Footnote_138_138"></a><a href="#FNanchor_138_138"><span class="label">[138]</span></a> Bracton, 209: 'Villenagium privilegiatum ... tenetur de Rege a Conquestu
+Angliae.' Cf. Blackstone, Law Tracts, ii. 128.</p></div>
+
+<div class="footnote"><p><a name="Footnote_139_139" id="Footnote_139_139"></a><a href="#FNanchor_139_139"><span class="label">[139]</span></a> Madox, History of the Exchequer, i. 704: 'Tallagium dominiorum et
+escaetarum et custodiarum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_140_140" id="Footnote_140_140"></a><a href="#FNanchor_140_140"><span class="label">[140]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_141_141" id="Footnote_141_141"></a><a href="#FNanchor_141_141"><span class="label">[141]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_142_142" id="Footnote_142_142"></a><a href="#FNanchor_142_142"><span class="label">[142]</span></a> Very curious pleadings occurred in 1323. Y.B. 15 Edw. II, p. 455:
+'<i>Ber(wick)</i> Ils dient en l'Exchequer que serra (<i>corr.</i> 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 (<i>corr.</i> mes une <i>or</i> mesqe?)
+R. fuit escript sur le margin de chescun foille apres, e tout ceo la est anciene
+demene a ceo quil nient (<i>corr.</i> 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 <i>Terra Regis</i>, at least T.R.E., is absolutely required to prove a
+manor ancient demesne. I give the entry on the Plea Roll in <a href="#APPENDIX_V">App. V.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_143_143" id="Footnote_143_143"></a><a href="#FNanchor_143_143"><span class="label">[143]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_144_144" id="Footnote_144_144"></a><a href="#FNanchor_144_144"><span class="label">[144]</span></a> Blackstone, Law Tracts, ii. 153: 'They cannot alienate tenements otherwise
+than by surrender into the lord's hand.' Bracton, 209.</p></div>
+
+<div class="footnote"><p><a name="Footnote_145_145" id="Footnote_145_145"></a><a href="#FNanchor_145_145"><span class="label">[145]</span></a> 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, <a href="#APPENDIX_VI">see App. VI.</a> 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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_146_146" id="Footnote_146_146"></a><a href="#FNanchor_146_146"><span class="label">[146]</span></a> 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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_147_147" id="Footnote_147_147"></a><a href="#FNanchor_147_147"><span class="label">[147]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_148_148" id="Footnote_148_148"></a><a href="#FNanchor_148_148"><span class="label">[148]</span></a> Viner, Abr. v. Anc. Dem. C<sup>2</sup>, 1; cf. E, 20. Madox, Hist. of Exch., i.
+418, note <i>l</i>: 'Quieti de auxilio vicecomitis et baillivorum suorum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_149_149" id="Footnote_149_149"></a><a href="#FNanchor_149_149"><span class="label">[149]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_150_150" id="Footnote_150_150"></a><a href="#FNanchor_150_150"><span class="label">[150]</span></a> Viner, Abr. Anc. Dem. B. 1, 4, 6.</p></div>
+
+<div class="footnote"><p><a name="Footnote_151_151" id="Footnote_151_151"></a><a href="#FNanchor_151_151"><span class="label">[151]</span></a> Madox, Exch., i. 412, 698.</p></div>
+
+<div class="footnote"><p><a name="Footnote_152_152" id="Footnote_152_152"></a><a href="#FNanchor_152_152"><span class="label">[152]</span></a> Stubbs, ii. 566, 567 (Libr. ed.); Madox, Exch., i. 751.</p></div>
+
+<div class="footnote"><p><a name="Footnote_153_153" id="Footnote_153_153"></a><a href="#FNanchor_153_153"><span class="label">[153]</span></a> 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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_154_154" id="Footnote_154_154"></a><a href="#FNanchor_154_154"><span class="label">[154]</span></a> 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.' <i>Th.</i>: 'Entend
+qe les feoffes le roy auront taile?' quasi diceret non, 'car cest un regalte
+qui proprement attient al roy et a nul auter.' <i>Clam.</i>: '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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_155_155" id="Footnote_155_155"></a><a href="#FNanchor_155_155"><span class="label">[155]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_156_156" id="Footnote_156_156"></a><a href="#FNanchor_156_156"><span class="label">[156]</span></a> Natura Brevium, f. 3 b (ed. Pynson).</p></div>
+
+<div class="footnote"><p><a name="Footnote_157_157" id="Footnote_157_157"></a><a href="#FNanchor_157_157"><span class="label">[157]</span></a> Y.B. H. 49 E. III, pl. 12 (Fitzherbert, Abr. Aunc. Dem. 42, quotes pl. 7
+instead of 12 by mistake): <i>Belk(nap)</i>, 'Verite est qe le terre est demandable
+par le briefe de droit patent en le court le seigniour apres la confirmacion
+(<i>sc.</i> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_158_158" id="Footnote_158_158"></a><a href="#FNanchor_158_158"><span class="label">[158]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_159_159" id="Footnote_159_159"></a><a href="#FNanchor_159_159"><span class="label">[159]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_160_160" id="Footnote_160_160"></a><a href="#FNanchor_160_160"><span class="label">[160]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_161_161" id="Footnote_161_161"></a><a href="#FNanchor_161_161"><span class="label">[161]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_162_162" id="Footnote_162_162"></a><a href="#FNanchor_162_162"><span class="label">[162]</span></a> Britton, ii, 142.</p></div>
+
+<div class="footnote"><p><a name="Footnote_163_163" id="Footnote_163_163"></a><a href="#FNanchor_163_163"><span class="label">[163]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_164_164" id="Footnote_164_164"></a><a href="#FNanchor_164_164"><span class="label">[164]</span></a> Y.B., M. 41 Edw. III, 22: '<i>Chold</i>: 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: '<i>Wichingham</i>: 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_165_165" id="Footnote_165_165"></a><a href="#FNanchor_165_165"><span class="label">[165]</span></a> 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. <a href="#APPENDIX_V">See
+App. V.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_166_166" id="Footnote_166_166"></a><a href="#FNanchor_166_166"><span class="label">[166]</span></a> 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
+<i>firmarius</i>, 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 <i>nomine proprio</i> in strict law, is compelled to answer without the
+King in the manorial court and by the manorial writ.</p></div>
+
+<div class="footnote"><p><a name="Footnote_167_167" id="Footnote_167_167"></a><a href="#FNanchor_167_167"><span class="label">[167]</span></a> I need not say that the 'little writ' did not lie against the King himself.
+No writs did. Cp. Fleta, p. 4.</p></div>
+
+<div class="footnote"><p><a name="Footnote_168_168" id="Footnote_168_168"></a><a href="#FNanchor_168_168"><span class="label">[168]</span></a> Y.B., 11/12 Edw. III, 325 (Rolls Ser.).</p></div>
+
+<div class="footnote"><p><a name="Footnote_169_169" id="Footnote_169_169"></a><a href="#FNanchor_169_169"><span class="label">[169]</span></a> I shall have to speak of the constitution and usages of the court in
+another chapter.</p></div>
+
+<div class="footnote"><p><a name="Footnote_170_170" id="Footnote_170_170"></a><a href="#FNanchor_170_170"><span class="label">[170]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_171_171" id="Footnote_171_171"></a><a href="#FNanchor_171_171"><span class="label">[171]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_172_172" id="Footnote_172_172"></a><a href="#FNanchor_172_172"><span class="label">[172]</span></a> Viner, Abr., I. 21.</p></div>
+
+<div class="footnote"><p><a name="Footnote_173_173" id="Footnote_173_173"></a><a href="#FNanchor_173_173"><span class="label">[173]</span></a> Y.B., H. 3 Edw. III, 29: '<i>Caunt</i>: Si le jugement soit une foitz revers,
+la court auncien demesne ad perdu conusance de ce ple a touts jours.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_174_174" id="Footnote_174_174"></a><a href="#FNanchor_174_174"><span class="label">[174]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_175_175" id="Footnote_175_175"></a><a href="#FNanchor_175_175"><span class="label">[175]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_176_176" id="Footnote_176_176"></a><a href="#FNanchor_176_176"><span class="label">[176]</span></a> Y.B., 11/12 Edw. III, p. 325 (Rolls Ser.): '<i>Stonore</i>: 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_177_177" id="Footnote_177_177"></a><a href="#FNanchor_177_177"><span class="label">[177]</span></a> Bract. Note-book, pl. 834 and 1122 concern the royal manors of Havering
+and Kingston.</p></div>
+
+<div class="footnote"><p><a name="Footnote_178_178" id="Footnote_178_178"></a><a href="#FNanchor_178_178"><span class="label">[178]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_179_179" id="Footnote_179_179"></a><a href="#FNanchor_179_179"><span class="label">[179]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_180_180" id="Footnote_180_180"></a><a href="#FNanchor_180_180"><span class="label">[180]</span></a> Natura brevium, f. 4 b (ed. Pynson).</p></div>
+
+<div class="footnote"><p><a name="Footnote_181_181" id="Footnote_181_181"></a><a href="#FNanchor_181_181"><span class="label">[181]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_182_182" id="Footnote_182_182"></a><a href="#FNanchor_182_182"><span class="label">[182]</span></a> Viner, Abr. Anc. Dem. C<sup>2</sup>, 3.</p></div>
+
+<div class="footnote"><p><a name="Footnote_183_183" id="Footnote_183_183"></a><a href="#FNanchor_183_183"><span class="label">[183]</span></a> Fitzherbert, Abr. Monstraverunt, 5 (P. 19, Edw. III): '<i>Seton</i>: 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_184_184" id="Footnote_184_184"></a><a href="#FNanchor_184_184"><span class="label">[184]</span></a> 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;
+<a href="#APPENDIX_VII">see App. VII.</a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_185_185" id="Footnote_185_185"></a><a href="#FNanchor_185_185"><span class="label">[185]</span></a> Madox, History of the Exch., i. 723, c, d; 724, e; 725, f.</p></div>
+
+<div class="footnote"><p><a name="Footnote_186_186" id="Footnote_186_186"></a><a href="#FNanchor_186_186"><span class="label">[186]</span></a> Bract. Note-book, pl. 1237: 'Homines prioris S<sup>ti</sup> Swithini ... questi
+fuerunt Dom. Regi.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_187_187" id="Footnote_187_187"></a><a href="#FNanchor_187_187"><span class="label">[187]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_188_188" id="Footnote_188_188"></a><a href="#FNanchor_188_188"><span class="label">[188]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_189_189" id="Footnote_189_189"></a><a href="#FNanchor_189_189"><span class="label">[189]</span></a> Exch. Memoranda, Q.R. Trin. 20 Edw. I, m. 21, d. I give the documents
+in full in <a href="#APPENDIX_VIII">App. VIII.</a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_190_190" id="Footnote_190_190"></a><a href="#FNanchor_190_190"><span class="label">[190]</span></a> 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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_191_191" id="Footnote_191_191"></a><a href="#FNanchor_191_191"><span class="label">[191]</span></a> 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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_192_192" id="Footnote_192_192"></a><a href="#FNanchor_192_192"><span class="label">[192]</span></a> Dugdale, Monasticon. v. 443; Stonleigh Reg. f. 14 b. Cf. Court Rolls of
+Ledecumbe Regis (Chapter House, County Bags, Berks, A. 3): 'Anno domini
+<span class="smcap">MCCLXVIII</span>, 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_193_193" id="Footnote_193_193"></a><a href="#FNanchor_193_193"><span class="label">[193]</span></a> 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 (<i>sic</i>) 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_194_194" id="Footnote_194_194"></a><a href="#FNanchor_194_194"><span class="label">[194]</span></a> Stoneleigh Reg. f. 13 a: 'Isti duo tenent (burgagia in Warrwick) per
+seruicium sustinendi unum plumbum in manerio de Stonle competens
+monasterio Regis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_195_195" id="Footnote_195_195"></a><a href="#FNanchor_195_195"><span class="label">[195]</span></a> Placita de Quo Warranto, 778: 'Item clamat quod Ballivus dom. Regis
+in manerio de Stonleye nullam faciet districtionem seu attachiamenta sine
+presencia Ballivi Abbatis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_196_196" id="Footnote_196_196"></a><a href="#FNanchor_196_196"><span class="label">[196]</span></a> <a href="#APPENDIX_VI">See App. VI.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_197_197" id="Footnote_197_197"></a><a href="#FNanchor_197_197"><span class="label">[197]</span></a> Stoneleigh Reg. 13 a: 'W.W. tenet unum burgagium per seruicium
+inveniendi domino regi seniori domino de Stonle quartam partem unius
+tripodis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_198_198" id="Footnote_198_198"></a><a href="#FNanchor_198_198"><span class="label">[198]</span></a> 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.&mdash;pro defectu ipsius Margarete. Eadem Matildis optulit se uersus
+Willelmum vicarium&mdash;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.&mdash;Qui venit et quantum ad aliam acram dicit, quod
+non est tenens set quod Abbas seysiuit illam in manum suam. (Curia&mdash;in
+festo Assumpcionis&mdash;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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_199_199" id="Footnote_199_199"></a><a href="#FNanchor_199_199"><span class="label">[199]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_200_200" id="Footnote_200_200"></a><a href="#FNanchor_200_200"><span class="label">[200]</span></a> Natura brevium, 13: 'Balliuis suis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_201_201" id="Footnote_201_201"></a><a href="#FNanchor_201_201"><span class="label">[201]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_202_202" id="Footnote_202_202"></a><a href="#FNanchor_202_202"><span class="label">[202]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_203_203" id="Footnote_203_203"></a><a href="#FNanchor_203_203"><span class="label">[203]</span></a> 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 <a href="#APPENDIX_IX">see App. IX.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_204_204" id="Footnote_204_204"></a><a href="#FNanchor_204_204"><span class="label">[204]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_205_205" id="Footnote_205_205"></a><a href="#FNanchor_205_205"><span class="label">[205]</span></a> Bracton, f. 209: 'Ad quemcumque manerium peruenerit.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_206_206" id="Footnote_206_206"></a><a href="#FNanchor_206_206"><span class="label">[206]</span></a> Madox, Firma Burgi, 54; Pipe Rolls, passim. Cf. Rot. Cur. Regis Ric.,
+p. 15: 'Homines de Kingestone&mdash;c. sol. ... pro respectu tenendi villam
+suam ad eandem firmam quam reddere solebant tempore Henrici Regis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_207_207" id="Footnote_207_207"></a><a href="#FNanchor_207_207"><span class="label">[207]</span></a> 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.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_208_208" id="Footnote_208_208"></a><a href="#FNanchor_208_208"><span class="label">[208]</span></a> Y.B., Trin., 49 E. III, pl. 8 (Fitzherbert, Abr. Monstrav. 4): '<i>Han.</i>
+mist auant record de Domesday qui parla <i>ut supra</i>:&mdash;<i>Terra sancti Stephani</i>
+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 <i>inspeximus</i> 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
+<i>inspeximus cartam domini Edwardi Regis Anglie</i> 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. <i>Belknap</i>:
+Le comen fesance de chartres est de faire parolle en le chartre <i>dedimus
+concessimus et confirmauimus</i> et uncore le chartre est bon assets al part,
+mesque le roy nauer riens a ceo temps, issint que riens passe par ceo paroll
+<i>dedimus</i> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_209_209" id="Footnote_209_209"></a><a href="#FNanchor_209_209"><span class="label">[209]</span></a> Fitzherbert, Abr. Cause de remover ple, 18 (Y.B., M., 21 Edw. III):
+'<i>Wilby</i>: Il conuient que il count en le <i>monstrauerunt</i> que il luy distreint pur
+auters customes que ses auncestres ne fecerunt en temps W. Conquerour,
+cas le <i>monstrauerunt</i> ne gist pas forsque en cas ou plusiours services sont
+demandez que ces auncestres ne solent faire en cel temps.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_210_210" id="Footnote_210_210"></a><a href="#FNanchor_210_210"><span class="label">[210]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_211_211" id="Footnote_211_211"></a><a href="#FNanchor_211_211"><span class="label">[211]</span></a> Y.B., M., 15 Edw. II, p. 455: '<i>Bereford</i>: 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 <i>corr.</i>) si vos feistes touz services en
+temps le Roy S<sup>t</sup>. Edward, ou non de temps que vos avez pris title? <i>Devon</i>:
+Sir navyl (nanyl <i>corr.</i>), mais nous disons qe touz les tenants qui tindrent en
+temps S<sup>t</sup>. Edward tinderent, etc. (par certains services) ... tanqe a ore xv
+ans devant le brief purchace etc. e ceo puit home enquere.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_212_212" id="Footnote_212_212"></a><a href="#FNanchor_212_212"><span class="label">[212]</span></a> Y.B., 21/22 Edw. I, 499 et sqq.</p></div>
+
+<div class="footnote"><p><a name="Footnote_213_213" id="Footnote_213_213"></a><a href="#FNanchor_213_213"><span class="label">[213]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_214_214" id="Footnote_214_214"></a><a href="#FNanchor_214_214"><span class="label">[214]</span></a> I will here cite Bract. Note-book, pl. 1237, as an instance, although there is
+hardly any call for quotation on this point.</p></div>
+
+<div class="footnote"><p><a name="Footnote_215_215" id="Footnote_215_215"></a><a href="#FNanchor_215_215"><span class="label">[215]</span></a> Law of Copyhold, 8. Cf. the same author's Tenures in Kent, 182.</p></div>
+
+<div class="footnote"><p><a name="Footnote_216_216" id="Footnote_216_216"></a><a href="#FNanchor_216_216"><span class="label">[216]</span></a> Blackstone, Law Tracts, ii., especially pp. 128, 129.</p></div>
+
+<div class="footnote"><p><a name="Footnote_217_217" id="Footnote_217_217"></a><a href="#FNanchor_217_217"><span class="label">[217]</span></a> Bracton: 'liberi de condicione ... tenentes villenagium.' Britton:
+'hommes de franc saunc.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_218_218" id="Footnote_218_218"></a><a href="#FNanchor_218_218"><span class="label">[218]</span></a> 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 <i>corr.</i>?) 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_219_219" id="Footnote_219_219"></a><a href="#FNanchor_219_219"><span class="label">[219]</span></a> Placitorum Abbrev. 233, Berks. Cf. Britton, i. 287, note c.</p></div>
+
+<div class="footnote"><p><a name="Footnote_220_220" id="Footnote_220_220"></a><a href="#FNanchor_220_220"><span class="label">[220]</span></a> Bracton, f. 7.</p></div>
+
+<div class="footnote"><p><a name="Footnote_221_221" id="Footnote_221_221"></a><a href="#FNanchor_221_221"><span class="label">[221]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_222_222" id="Footnote_222_222"></a><a href="#FNanchor_222_222"><span class="label">[222]</span></a> 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<sup>ti</sup>. Michaelis scilicet ayde et facere braseum Domini et alia seruicia seruilia.'
+As to some details, see Dugdale, Antiquities of Warwickshire, i. 176.</p></div>
+
+<div class="footnote"><p><a name="Footnote_223_223" id="Footnote_223_223"></a><a href="#FNanchor_223_223"><span class="label">[223]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_224_224" id="Footnote_224_224"></a><a href="#FNanchor_224_224"><span class="label">[224]</span></a> Y.B., M., 15 Edw. II, p. 455: '<i>Bouser</i>: 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. <i>Herle</i>: 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_225_225" id="Footnote_225_225"></a><a href="#FNanchor_225_225"><span class="label">[225]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_226_226" id="Footnote_226_226"></a><a href="#FNanchor_226_226"><span class="label">[226]</span></a> Fitzherbert, Abr. Monstrav. 3 (Pasch. 41 Edw. III). '<i>Kirt</i>: 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_227_227" id="Footnote_227_227"></a><a href="#FNanchor_227_227"><span class="label">[227]</span></a> Natura Brevium, f. 105. Cf. 16.</p></div>
+
+<div class="footnote"><p><a name="Footnote_228_228" id="Footnote_228_228"></a><a href="#FNanchor_228_228"><span class="label">[228]</span></a> Y.B., 21/22 Edw. I, p. 499: 'Treis maners de gents.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_229_229" id="Footnote_229_229"></a><a href="#FNanchor_229_229"><span class="label">[229]</span></a> Bracton, f. 209: Fitzherbert, Monstrav. 3 (Pasch. 41 Edw. III): '<i>Belknap</i>:
+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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_230_230" id="Footnote_230_230"></a><a href="#FNanchor_230_230"><span class="label">[230]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_231_231" id="Footnote_231_231"></a><a href="#FNanchor_231_231"><span class="label">[231]</span></a> A comparison of the data in the Stoneleigh Register and in the Roll is
+given <a href="#APPENDIX_VI">in App. VI.</a> Cf. Bract. Note-book, pl. 834: 'Legales homines de manerio
+de Havering.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_232_232" id="Footnote_232_232"></a><a href="#FNanchor_232_232"><span class="label">[232]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_233_233" id="Footnote_233_233"></a><a href="#FNanchor_233_233"><span class="label">[233]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_234_234" id="Footnote_234_234"></a><a href="#FNanchor_234_234"><span class="label">[234]</span></a> Court Rolls of King's Ripton, Augment. Off. xxiii. 94, m. 15: 'Curia de
+Kingsripton tenta die Jovis proxima post translacionem S<sup>ti</sup>. Benedicti anno
+r. r. E. xxix<sup>n</sup> 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 <i>extranei</i>
+legitime procreatorum de Katerina filia Thome prepositi que est de con[dicione
+sokemannorum?] <i>bondorum</i> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_235_235" id="Footnote_235_235"></a><a href="#FNanchor_235_235"><span class="label">[235]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_236_236" id="Footnote_236_236"></a><a href="#FNanchor_236_236"><span class="label">[236]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_237_237" id="Footnote_237_237"></a><a href="#FNanchor_237_237"><span class="label">[237]</span></a> Bract. Note-book, pl. 1237.</p></div>
+
+<div class="footnote"><p><a name="Footnote_238_238" id="Footnote_238_238"></a><a href="#FNanchor_238_238"><span class="label">[238]</span></a> Bracton, f. 7.</p></div>
+
+<div class="footnote"><p><a name="Footnote_239_239" id="Footnote_239_239"></a><a href="#FNanchor_239_239"><span class="label">[239]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_240_240" id="Footnote_240_240"></a><a href="#FNanchor_240_240"><span class="label">[240]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_241_241" id="Footnote_241_241"></a><a href="#FNanchor_241_241"><span class="label">[241]</span></a> 'Loquebantur de tempore S<sup>ti</sup> Edwardi Regis coram W. de Wilton.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_242_242" id="Footnote_242_242"></a><a href="#FNanchor_242_242"><span class="label">[242]</span></a> The men of King's Ripton.</p></div>
+
+<div class="footnote"><p><a name="Footnote_243_243" id="Footnote_243_243"></a><a href="#FNanchor_243_243"><span class="label">[243]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_244_244" id="Footnote_244_244"></a><a href="#FNanchor_244_244"><span class="label">[244]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_245_245" id="Footnote_245_245"></a><a href="#FNanchor_245_245"><span class="label">[245]</span></a> Brunner, Entstehung der Schwurgerichte, has made an epoch in the
+discussion of this phenomenon.</p></div>
+
+<div class="footnote"><p><a name="Footnote_246_246" id="Footnote_246_246"></a><a href="#FNanchor_246_246"><span class="label">[246]</span></a> I shall treat at length of the Norman Conquest in my third essay.</p></div>
+
+<div class="footnote"><p><a name="Footnote_247_247" id="Footnote_247_247"></a><a href="#FNanchor_247_247"><span class="label">[247]</span></a> Leg. Will. Conq. i. 29 (Schmid, p. 340).</p></div>
+
+<div class="footnote"><p><a name="Footnote_248_248" id="Footnote_248_248"></a><a href="#FNanchor_248_248"><span class="label">[248]</span></a> Thorold Rogers has made great use of this last class of manorial documents
+in his well-known books.</p></div>
+
+<div class="footnote"><p><a name="Footnote_249_249" id="Footnote_249_249"></a><a href="#FNanchor_249_249"><span class="label">[249]</span></a> Bracton, 271 b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_250_250" id="Footnote_250_250"></a><a href="#FNanchor_250_250"><span class="label">[250]</span></a> Bracton, 124.</p></div>
+
+<div class="footnote"><p><a name="Footnote_251_251" id="Footnote_251_251"></a><a href="#FNanchor_251_251"><span class="label">[251]</span></a> Cartulary of Malmesbury (Rolls Series), ii. 186: 'Videlicet quod prefatus
+Ricardus concessit praedictis abbati et conventui et eorum tenentibus,
+tam rusticis, quam liberis&mdash;quod ipsi terras suas libere pro voluntate sua
+excolant.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_252_252" id="Footnote_252_252"></a><a href="#FNanchor_252_252"><span class="label">[252]</span></a> As to the Warwickshire Hundred Roll in the Record Office, see my
+letter in the Athenæum, 1883, December 22.</p></div>
+
+<div class="footnote"><p><a name="Footnote_253_253" id="Footnote_253_253"></a><a href="#FNanchor_253_253"><span class="label">[253]</span></a> Rot. Hundred. ii. 471, a: '<i>Libere tenentes</i> prioris de Swaveseia.... Henricus
+Palmer&mdash;1 mesuagium et 3 rodas terre reddens 12 d. et 2 precarias.
+<i>Servi</i> Adam scot tenet 10 acras reddens 4 s. et 6 precarias.... <i>Cotarii</i>....'</p></div>
+
+<div class="footnote"><p><a name="Footnote_254_254" id="Footnote_254_254"></a><a href="#FNanchor_254_254"><span class="label">[254]</span></a> Rot. Hundred. ii. 715, a: 'In <i>servitute</i> tenentes. Assunt et ibidem 10
+tenentes qui tenent 10 virgatas terre in <i>villenagio</i> et operantur ad voluntatem
+domini et reddunt per annum 25 s.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_255_255" id="Footnote_255_255"></a><a href="#FNanchor_255_255"><span class="label">[255]</span></a> Rot. Hundred. ii. 690, 691: 'Villani&mdash;servi&mdash;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&mdash;et faciet per annum 144 opera et metet 2 acras. De
+aliis servis ... De cotariis ... De aliis cotariis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_256_256" id="Footnote_256_256"></a><a href="#FNanchor_256_256"><span class="label">[256]</span></a> Rot. Hundred. ii. 528, a: 'Henr. de Walpol habet latinos (<i>corr. nativos</i>),
+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 <i>villenagio</i>.' Chapter House,
+County Boxes, Salop. 14, c: 'Libere tenentes ... Coterelli ... Nativi.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_257_257" id="Footnote_257_257"></a><a href="#FNanchor_257_257"><span class="label">[257]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_258_258" id="Footnote_258_258"></a><a href="#FNanchor_258_258"><span class="label">[258]</span></a> Domesday of St. Paul's, 157 (Articuli visitationis): 'An villani sive custumarii
+vendant terras. Item, an <i>nativi custumarii</i> maritaverunt filias&mdash;vel
+vendiderint vitulum&mdash;vel arbores&mdash;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 <i>nativus</i> est.... Antecessor
+recognovit se nativum domini abbatis in curia domini regis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_259_259" id="Footnote_259_259"></a><a href="#FNanchor_259_259"><span class="label">[259]</span></a> Cartulary of Eynsham in Oxfordshire, MS. of the Chapter of Christ Church
+in Oxford, N. 27, p. 25, a: 'In primis Willelmus le Brewester <i>nativus domini</i>
+tenet de dictis prato et terris...'</p></div>
+
+<div class="footnote"><p><a name="Footnote_260_260" id="Footnote_260_260"></a><a href="#FNanchor_260_260"><span class="label">[260]</span></a> Eynsham Cartulary, 49. b: 'Johannes Kolyns nativus domini tenet 1 virgatam
+terre cum pertinenciis in bondagio.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_261_261" id="Footnote_261_261"></a><a href="#FNanchor_261_261"><span class="label">[261]</span></a> Cartulary of St. Mary of Worcester (Camden Series), 15. a: 'Nativi, cum
+ad aetatem pervenerint nisi immediate serviant patri&mdash;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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_262_262" id="Footnote_262_262"></a><a href="#FNanchor_262_262"><span class="label">[262]</span></a> Domesday of St. Paul's, 80: 'Nativi a principio. Isti tenent terras
+operarias.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_263_263" id="Footnote_263_263"></a><a href="#FNanchor_263_263"><span class="label">[263]</span></a> Queen's Remembrancer's Miscellanies, 902-62: 'Rotuli de libertate de
+Tynemouth, de liberis hominibus, non de nativis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_264_264" id="Footnote_264_264"></a><a href="#FNanchor_264_264"><span class="label">[264]</span></a> Queen's Remembrancer's Miscellanies, 902-77: 'Nativi de Sebrighteworth
+(Proavus extraneus).' <a href="#APPENDIX_X">See App. X.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_265_265" id="Footnote_265_265"></a><a href="#FNanchor_265_265"><span class="label">[265]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_266_266" id="Footnote_266_266"></a><a href="#FNanchor_266_266"><span class="label">[266]</span></a> Glastonbury Inquisitions of 1189 (Roxburghe Series), 48: 'Radulfus
+niet tenet dimidiam virgatam.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_267_267" id="Footnote_267_267"></a><a href="#FNanchor_267_267"><span class="label">[267]</span></a> 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.'&mdash;'<i>De
+netis.</i> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_268_268" id="Footnote_268_268"></a><a href="#FNanchor_268_268"><span class="label">[268]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_269_269" id="Footnote_269_269"></a><a href="#FNanchor_269_269"><span class="label">[269]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_270_270" id="Footnote_270_270"></a><a href="#FNanchor_270_270"><span class="label">[270]</span></a> Glastonbury Inquis. 51: 'Et nieti tenent 9 acras unde reddunt 3 s.'
+Ibid. 47: 'Nieti habent unum pratum pro 5 s.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_271_271" id="Footnote_271_271"></a><a href="#FNanchor_271_271"><span class="label">[271]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_272_272" id="Footnote_272_272"></a><a href="#FNanchor_272_272"><span class="label">[272]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_273_273" id="Footnote_273_273"></a><a href="#FNanchor_273_273"><span class="label">[273]</span></a> Rot. Hundred. ii. 486, a: 'Tenentes Alicie la Blunde. <i>Bondi</i>, A. habet in
+eadem villa 2 villanos, quorum quilibet tenet mesuagium cum 30 a. Id. Al.
+hab. 1 bondum qui ten. 20 a. <i>Custumarii</i>, Id. Al. habet 1 villanum, qui tenet
+1 mes. cum 44 a.' Rot. Hundred. ii. 486, a: 'De W. le Blunde. <i>Villani</i>, R.
+de Badburnham. <i>Bondi cotarii.</i>' Cf. Ibid. 422, b; 423, a: 'Libere tenentes ...
+Custumarii ... Bondi.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_274_274" id="Footnote_274_274"></a><a href="#FNanchor_274_274"><span class="label">[274]</span></a> 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 <i>salvo corpore
+suo</i> et quod faciet omnes consuetudines serviles ... <i>lancectus nacione</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_275_275" id="Footnote_275_275"></a><a href="#FNanchor_275_275"><span class="label">[275]</span></a> Domesday of St. Paul's, 17: 'Item omnes operarii dimidiae virgatae debent
+invenire vasa et utensilia ter in anno ad braciandum.' Cf. 28.</p></div>
+
+<div class="footnote"><p><a name="Footnote_276_276" id="Footnote_276_276"></a><a href="#FNanchor_276_276"><span class="label">[276]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_277_277" id="Footnote_277_277"></a><a href="#FNanchor_277_277"><span class="label">[277]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_278_278" id="Footnote_278_278"></a><a href="#FNanchor_278_278"><span class="label">[278]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_279_279" id="Footnote_279_279"></a><a href="#FNanchor_279_279"><span class="label">[279]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_280_280" id="Footnote_280_280"></a><a href="#FNanchor_280_280"><span class="label">[280]</span></a> Rot. Hundred ii. 602, a. Cf. Exch. Q.R. Alien Priories, 2/2: 'Item sunt
+in eadem villata de Wardeboys 6 dimidias virgatas&mdash;que vocantur Akermannelondes,
+quorum W.L. tenet &frac12; 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_281_281" id="Footnote_281_281"></a><a href="#FNanchor_281_281"><span class="label">[281]</span></a> 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&mdash;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 <i>landsettus</i> (land-seti),
+as well as <i>akermannus</i> (aker-maðr) and <i>gersuma</i> (görsemi), are certainly
+Danish loan-words, which accounts for their occurrence in Danish districts.</p></div>
+
+<div class="footnote"><p><a name="Footnote_282_282" id="Footnote_282_282"></a><a href="#FNanchor_282_282"><span class="label">[282]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_283_283" id="Footnote_283_283"></a><a href="#FNanchor_283_283"><span class="label">[283]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_284_284" id="Footnote_284_284"></a><a href="#FNanchor_284_284"><span class="label">[284]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_285_285" id="Footnote_285_285"></a><a href="#FNanchor_285_285"><span class="label">[285]</span></a> Black Book of Peterborough, 164: 'In Scotere et in Scaletorp&mdash;24 plenarii
+villani et 2 dimidii villani&mdash;Plenarii villani operantur 2 diebus in ebdomada.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_286_286" id="Footnote_286_286"></a><a href="#FNanchor_286_286"><span class="label">[286]</span></a> Glastonbury Inqu. (Roxburghe Series), 23: 'Operatur ut alii ferlingseti.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_287_287" id="Footnote_287_287"></a><a href="#FNanchor_287_287"><span class="label">[287]</span></a> 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&frac12; d.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_288_288" id="Footnote_288_288"></a><a href="#FNanchor_288_288"><span class="label">[288]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_289_289" id="Footnote_289_289"></a><a href="#FNanchor_289_289"><span class="label">[289]</span></a> Cartulary of Battle, Augment. Office, Misc. Books, 57, f. 37, b: 'Virgarii ... Cotarii,
+qui tenent dimid. virgatam.' Ibid. 36, b: 'Cottarii majores
+et minores.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_290_290" id="Footnote_290_290"></a><a href="#FNanchor_290_290"><span class="label">[290]</span></a> Glastonbury Inquis. (Roxburghe Series), 114: 'Rad. Forest. &frac12; cotsetland
+pro 18 d. et operatur sicut dimidius cotarius sed non falcat.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_291_291" id="Footnote_291_291"></a><a href="#FNanchor_291_291"><span class="label">[291]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_292_292" id="Footnote_292_292"></a><a href="#FNanchor_292_292"><span class="label">[292]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_293_293" id="Footnote_293_293"></a><a href="#FNanchor_293_293"><span class="label">[293]</span></a> Thorold Rogers, History of Agriculture and Prices, i. p. 71.</p></div>
+
+<div class="footnote"><p><a name="Footnote_294_294" id="Footnote_294_294"></a><a href="#FNanchor_294_294"><span class="label">[294]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_295_295" id="Footnote_295_295"></a><a href="#FNanchor_295_295"><span class="label">[295]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_296_296" id="Footnote_296_296"></a><a href="#FNanchor_296_296"><span class="label">[296]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_297_297" id="Footnote_297_297"></a><a href="#FNanchor_297_297"><span class="label">[297]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_298_298" id="Footnote_298_298"></a><a href="#FNanchor_298_298"><span class="label">[298]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_299_299" id="Footnote_299_299"></a><a href="#FNanchor_299_299"><span class="label">[299]</span></a> How very difficult it was sometimes to decide the question, whether
+merchet had been paid or not, may be seen from the following instances:&mdash;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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_300_300" id="Footnote_300_300"></a><a href="#FNanchor_300_300"><span class="label">[300]</span></a> Y.B. 21/22 Edw. I, p. 107.</p></div>
+
+<div class="footnote"><p><a name="Footnote_301_301" id="Footnote_301_301"></a><a href="#FNanchor_301_301"><span class="label">[301]</span></a> Note-book of Bracton, pl. 1230.</p></div>
+
+<div class="footnote"><p><a name="Footnote_302_302" id="Footnote_302_302"></a><a href="#FNanchor_302_302"><span class="label">[302]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_303_303" id="Footnote_303_303"></a><a href="#FNanchor_303_303"><span class="label">[303]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_304_304" id="Footnote_304_304"></a><a href="#FNanchor_304_304"><span class="label">[304]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_305_305" id="Footnote_305_305"></a><a href="#FNanchor_305_305"><span class="label">[305]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_306_306" id="Footnote_306_306"></a><a href="#FNanchor_306_306"><span class="label">[306]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_307_307" id="Footnote_307_307"></a><a href="#FNanchor_307_307"><span class="label">[307]</span></a> Cart. Glouc. (Rolls Ser.), iii. 217: 'Item, inhibeatur nativis domini
+manerii ne aliquid alicui dent per annum in recognitione, ut aliquo gaudeant
+patrocinio.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_308_308" id="Footnote_308_308"></a><a href="#FNanchor_308_308"><span class="label">[308]</span></a> Lancaster Court Rolls, Bundle 62, No. 756, m. 1: 'Nativus receptatus
+apud Latfeld sine licentia domini.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_309_309" id="Footnote_309_309"></a><a href="#FNanchor_309_309"><span class="label">[309]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_310_310" id="Footnote_310_310"></a><a href="#FNanchor_310_310"><span class="label">[310]</span></a> Coram Rege, Pasch. 7 Edw. I, m. 7: 'Villanus fugitivus an in villenagio
+tenens et adventicius.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_311_311" id="Footnote_311_311"></a><a href="#FNanchor_311_311"><span class="label">[311]</span></a> Eynsham Inqu. (Chapter of Christ Church, Oxford), 25, a: 'Quas Adam
+pater ipsius adquisivit et quia <i>quicquid servis adquiritur domino adquiritur</i>
+faciat inde dominus quod sibi videatur expediens.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_312_312" id="Footnote_312_312"></a><a href="#FNanchor_312_312"><span class="label">[312]</span></a> Register of St. Mary of Barnwell, Harl. MSS. 3601, f. 60: 'Quidam
+villanus de Bertone tenuit unum mesuagium de duobus dominis ...
+<i>quicquid servus acquirit acquiritur domino suo</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_313_313" id="Footnote_313_313"></a><a href="#FNanchor_313_313"><span class="label">[313]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_314_314" id="Footnote_314_314"></a><a href="#FNanchor_314_314"><span class="label">[314]</span></a> Formulary of St. Alban's, Camb. Univ., Ee. iv. 20.</p></div>
+
+<div class="footnote"><p><a name="Footnote_315_315" id="Footnote_315_315"></a><a href="#FNanchor_315_315"><span class="label">[315]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_316_316" id="Footnote_316_316"></a><a href="#FNanchor_316_316"><span class="label">[316]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_317_317" id="Footnote_317_317"></a><a href="#FNanchor_317_317"><span class="label">[317]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_318_318" id="Footnote_318_318"></a><a href="#FNanchor_318_318"><span class="label">[318]</span></a> 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.'&mdash;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.)&mdash;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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_319_319" id="Footnote_319_319"></a><a href="#FNanchor_319_319"><span class="label">[319]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_320_320" id="Footnote_320_320"></a><a href="#FNanchor_320_320"><span class="label">[320]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_321_321" id="Footnote_321_321"></a><a href="#FNanchor_321_321"><span class="label">[321]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_322_322" id="Footnote_322_322"></a><a href="#FNanchor_322_322"><span class="label">[322]</span></a> Rot. Hundred. ii. 747, a: 'Debet talliari ad voluntatem domini quolibet
+anno.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_323_323" id="Footnote_323_323"></a><a href="#FNanchor_323_323"><span class="label">[323]</span></a> Ibid. ii. 528, b: 'Et debet talliari ad voluntatem domini semel in anno
+et debet gersummare filiam et fieri prepositus ad voluntatem domini.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_324_324" id="Footnote_324_324"></a><a href="#FNanchor_324_324"><span class="label">[324]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_325_325" id="Footnote_325_325"></a><a href="#FNanchor_325_325"><span class="label">[325]</span></a> Formulary of St. Alban's, Cambridge Univ., Ee. iv. 20, f. 165, a: 'Servilia&mdash;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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_326_326" id="Footnote_326_326"></a><a href="#FNanchor_326_326"><span class="label">[326]</span></a> Bury St. Edmund's, Registrum album, Cambridge Univ., Ee. iii. 60, f.
+155, b: 'Liberi excepti a falda domini.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_327_327" id="Footnote_327_327"></a><a href="#FNanchor_327_327"><span class="label">[327]</span></a> As to Scotale, see Stubbs, Const. Hist. § 165.</p></div>
+
+<div class="footnote"><p><a name="Footnote_328_328" id="Footnote_328_328"></a><a href="#FNanchor_328_328"><span class="label">[328]</span></a> Reg. Cellararii of Bury St. Edmund's, Cambridge Univ., Gg. iv. 4. 30, b:
+'Per fidelitatem custumarii ... et per alias consuetudines serviles.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_329_329" id="Footnote_329_329"></a><a href="#FNanchor_329_329"><span class="label">[329]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_330_330" id="Footnote_330_330"></a><a href="#FNanchor_330_330"><span class="label">[330]</span></a> Chron. Mon. de Abingdon, ii. 25 (Rolls Series).</p></div>
+
+<div class="footnote"><p><a name="Footnote_331_331" id="Footnote_331_331"></a><a href="#FNanchor_331_331"><span class="label">[331]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_332_332" id="Footnote_332_332"></a><a href="#FNanchor_332_332"><span class="label">[332]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_333_333" id="Footnote_333_333"></a><a href="#FNanchor_333_333"><span class="label">[333]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_334_334" id="Footnote_334_334"></a><a href="#FNanchor_334_334"><span class="label">[334]</span></a> Suffolk Court Rolls (Bodleian), 2, a: 'Rob. Gl. assertavit pomaria sua et
+fecit wastum super vilenagium Comitis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_335_335" id="Footnote_335_335"></a><a href="#FNanchor_335_335"><span class="label">[335]</span></a> Suffolk Court Rolls (Bodleian): 'Quia Henricus bercarius plegios non
+potuit invenire ad heredificandum mesuagium quod fuit W.C. et ibi attractum
+suum facere.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_336_336" id="Footnote_336_336"></a><a href="#FNanchor_336_336"><span class="label">[336]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_337_337" id="Footnote_337_337"></a><a href="#FNanchor_337_337"><span class="label">[337]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_338_338" id="Footnote_338_338"></a><a href="#FNanchor_338_338"><span class="label">[338]</span></a> Glastonbury Inqu. (Roxburghe Series), 65; Gloucester Cartulary (Rolls
+Series), iii. 196.</p></div>
+
+<div class="footnote"><p><a name="Footnote_339_339" id="Footnote_339_339"></a><a href="#FNanchor_339_339"><span class="label">[339]</span></a> Capitula halimoti, Bodleian MSS., Wood, i. f. <span class="smcap">111</span>, 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_340_340" id="Footnote_340_340"></a><a href="#FNanchor_340_340"><span class="label">[340]</span></a> Rot. Hundred, ii. 321, a: In villenagio tres virgatae et dimidia.... Et
+sunt tenentes illarum servi de sanguine suo emendo.... In libere tenentibus
+<i>pro certis serviciis</i> per annum,' etc.</p></div>
+
+<div class="footnote"><p><a name="Footnote_341_341" id="Footnote_341_341"></a><a href="#FNanchor_341_341"><span class="label">[341]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_342_342" id="Footnote_342_342"></a><a href="#FNanchor_342_342"><span class="label">[342]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_343_343" id="Footnote_343_343"></a><a href="#FNanchor_343_343"><span class="label">[343]</span></a> Ibid. 121: 'De dono xxix solidi et vi denarii. Et de Anderdo deficiunt
+vj den. quia tenet liberius quam predecessores sui solebant tenere.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_344_344" id="Footnote_344_344"></a><a href="#FNanchor_344_344"><span class="label">[344]</span></a> Ramsey Cartulary (Rolls Series), i. 364: 'De his septem hydis est
+una <i>hyda libera</i>. De sex hydis, quae restant, tenet Marsilia filia A. de R.
+duas virgatas ad censum. Quinque hydae et tres virgatae, quae restant,
+tenentur <i>in puro villenagio</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_345_345" id="Footnote_345_345"></a><a href="#FNanchor_345_345"><span class="label">[345]</span></a> Galba, E. x. f. 38.</p></div>
+
+<div class="footnote"><p><a name="Footnote_346_346" id="Footnote_346_346"></a><a href="#FNanchor_346_346"><span class="label">[346]</span></a> Extensio de terris Roberti de Sto. Georgio (Lincoln) Inquis. p. mort.
+30 Henry III, No. 36: 'Idem habuit in <i>villenagio</i> 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 <i>liberis serviciis</i> unam bovatam quam Radulfus
+filius G. de eo tenuit per cartam pro 2 solidis per annum pro omni
+servicio.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_347_347" id="Footnote_347_347"></a><a href="#FNanchor_347_347"><span class="label">[347]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_348_348" id="Footnote_348_348"></a><a href="#FNanchor_348_348"><span class="label">[348]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_349_349" id="Footnote_349_349"></a><a href="#FNanchor_349_349"><span class="label">[349]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_350_350" id="Footnote_350_350"></a><a href="#FNanchor_350_350"><span class="label">[350]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_351_351" id="Footnote_351_351"></a><a href="#FNanchor_351_351"><span class="label">[351]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_352_352" id="Footnote_352_352"></a><a href="#FNanchor_352_352"><span class="label">[352]</span></a> Domesday of St. Paul's (Camden Series), 49.</p></div>
+
+<div class="footnote"><p><a name="Footnote_353_353" id="Footnote_353_353"></a><a href="#FNanchor_353_353"><span class="label">[353]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_354_354" id="Footnote_354_354"></a><a href="#FNanchor_354_354"><span class="label">[354]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_355_355" id="Footnote_355_355"></a><a href="#FNanchor_355_355"><span class="label">[355]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_356_356" id="Footnote_356_356"></a><a href="#FNanchor_356_356"><span class="label">[356]</span></a> Extractus Rotulorum de Halimotis, Cambridge Univ, Dd. vii. 22, f. 1, a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_357_357" id="Footnote_357_357"></a><a href="#FNanchor_357_357"><span class="label">[357]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_358_358" id="Footnote_358_358"></a><a href="#FNanchor_358_358"><span class="label">[358]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_359_359" id="Footnote_359_359"></a><a href="#FNanchor_359_359"><span class="label">[359]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_360_360" id="Footnote_360_360"></a><a href="#FNanchor_360_360"><span class="label">[360]</span></a> Note-book of Bracton, pl. 1237.</p></div>
+
+<div class="footnote"><p><a name="Footnote_361_361" id="Footnote_361_361"></a><a href="#FNanchor_361_361"><span class="label">[361]</span></a> Ely Register, Cotton, Claudius, C. xi. f. iii. b: 'Habebit duas pugillatas
+avene ex gratia, ut juratores dicunt, per longum tempus usitata.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_362_362" id="Footnote_362_362"></a><a href="#FNanchor_362_362"><span class="label">[362]</span></a> Warwickshire Roll, Exch. Q.R. No. 29, f. 94, b: 'Servus ... cum
+fecerit exennium ... comedet cum domino.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_363_363" id="Footnote_363_363"></a><a href="#FNanchor_363_363"><span class="label">[363]</span></a> Christ Church, Canterbury, Cartulary, Add. MSS. 6159, f. 22, b. Cf.
+Gloucester Cartulary (Rolls Series), iii. 203.</p></div>
+
+<div class="footnote"><p><a name="Footnote_364_364" id="Footnote_364_364"></a><a href="#FNanchor_364_364"><span class="label">[364]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_365_365" id="Footnote_365_365"></a><a href="#FNanchor_365_365"><span class="label">[365]</span></a> Coram Rege, Pasch., 14 Edw. I, Lege, 18: 'Villani circulare (sic) non
+consueverunt nisi ex voluntate.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_366_366" id="Footnote_366_366"></a><a href="#FNanchor_366_366"><span class="label">[366]</span></a> Glastonbury Inqu. (Roxburghe Series), 82: 'Sed non debet carriare
+nisi dominus prestaverit suum plaustrum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_367_367" id="Footnote_367_367"></a><a href="#FNanchor_367_367"><span class="label">[367]</span></a> Cotton MSS., Claudius, C. xi, f. 30, b: 'Sed juratores dicunt quod nunquam
+hoc fecerunt nec de iure facere debent.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_368_368" id="Footnote_368_368"></a><a href="#FNanchor_368_368"><span class="label">[368]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_369_369" id="Footnote_369_369"></a><a href="#FNanchor_369_369"><span class="label">[369]</span></a> Rot. Hundred. ii. 528, b: 'Et modo omnia illa arrentata sunt et dant
+per annum 14 sol. 8 d.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_370_370" id="Footnote_370_370"></a><a href="#FNanchor_370_370"><span class="label">[370]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_371_371" id="Footnote_371_371"></a><a href="#FNanchor_371_371"><span class="label">[371]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_372_372" id="Footnote_372_372"></a><a href="#FNanchor_372_372"><span class="label">[372]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_373_373" id="Footnote_373_373"></a><a href="#FNanchor_373_373"><span class="label">[373]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_374_374" id="Footnote_374_374"></a><a href="#FNanchor_374_374"><span class="label">[374]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_375_375" id="Footnote_375_375"></a><a href="#FNanchor_375_375"><span class="label">[375]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_376_376" id="Footnote_376_376"></a><a href="#FNanchor_376_376"><span class="label">[376]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_377_377" id="Footnote_377_377"></a><a href="#FNanchor_377_377"><span class="label">[377]</span></a> 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. ... <i>Custumarii</i>.
+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<sup>xx</sup>xii (i.e. 132) et valet in denariis 5 sol.' etc.</p></div>
+
+<div class="footnote"><p><a name="Footnote_378_378" id="Footnote_378_378"></a><a href="#FNanchor_378_378"><span class="label">[378]</span></a> Black Book of St. Augustine, Canterbury, Cotton MSS. Faustina, A. i.
+31: 'De quolibet sullung (<i>ploughland</i>) 20 solidos de mala ad quatuor terminos
+quos antecessores nostri dederunt pro omnibus iniustis et incausacionibus
+(<i>sic</i>) quas uobis ore plenius exponemus.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_379_379" id="Footnote_379_379"></a><a href="#FNanchor_379_379"><span class="label">[379]</span></a> 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&mdash;hoc est <i>Mal</i>. In media quadragesima 40 d. Hoc
+est <i>Gable</i>.' The Cartulary of Christ Church, Canterbury, in the British
+Museum (Add. MSS. 6159) always gives the rents under the two different
+headings of <i>Gafol</i> and <i>Mal</i>.</p></div>
+
+<div class="footnote"><p><a name="Footnote_380_380" id="Footnote_380_380"></a><a href="#FNanchor_380_380"><span class="label">[380]</span></a> The etymology of the word is traced by Stevenson, l. c.</p></div>
+
+<div class="footnote"><p><a name="Footnote_381_381" id="Footnote_381_381"></a><a href="#FNanchor_381_381"><span class="label">[381]</span></a> Ashley, Economic History, i. pp. 56, 57.</p></div>
+
+<div class="footnote"><p><a name="Footnote_382_382" id="Footnote_382_382"></a><a href="#FNanchor_382_382"><span class="label">[382]</span></a> 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&mdash;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 <i>tenentes de molland solebant esse custumarii</i>
+et fuerunt, sed Abbas Hugo primus et Abbas Sampson posterum et alii
+<i>Abbates relaxarunt eis seruicia maiora et consuetudines pro certa pecunia</i>; 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_383_383" id="Footnote_383_383"></a><a href="#FNanchor_383_383"><span class="label">[383]</span></a> Exch. Treas. of Rec. 59/66. The classes follow each other in this way:
+'Liberi tenentes, Molmen, Custumarii.' Cf. Rot. Hundred, ii. 425, a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_384_384" id="Footnote_384_384"></a><a href="#FNanchor_384_384"><span class="label">[384]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_385_385" id="Footnote_385_385"></a><a href="#FNanchor_385_385"><span class="label">[385]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_386_386" id="Footnote_386_386"></a><a href="#FNanchor_386_386"><span class="label">[386]</span></a> Q.R. Min. Acc. Box 587.</p></div>
+
+<div class="footnote"><p><a name="Footnote_387_387" id="Footnote_387_387"></a><a href="#FNanchor_387_387"><span class="label">[387]</span></a> Ramsey Cartulary (Rolls Series), i. 267: 'Decem hidae, ex quibus persona,
+liberi et censuarii tenent tres hidas et dimidiam, et villani tenent sex hidas.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_388_388" id="Footnote_388_388"></a><a href="#FNanchor_388_388"><span class="label">[388]</span></a> Domesday Book, i. 204; Ramsey Cartulary, i. 270, 330-40.</p></div>
+
+<div class="footnote"><p><a name="Footnote_389_389" id="Footnote_389_389"></a><a href="#FNanchor_389_389"><span class="label">[389]</span></a> Rochester Cartulary (Thorpe), 2, a: 'Gavelmanni de Suthflete.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_390_390" id="Footnote_390_390"></a><a href="#FNanchor_390_390"><span class="label">[390]</span></a> Cotton MSS. Tiberius B. ii, and Claudius C. xi.</p></div>
+
+<div class="footnote"><p><a name="Footnote_391_391" id="Footnote_391_391"></a><a href="#FNanchor_391_391"><span class="label">[391]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_392_392" id="Footnote_392_392"></a><a href="#FNanchor_392_392"><span class="label">[392]</span></a> In the description of Aston and Cote, a submanor of Bampton, Oxfordshire,
+<i>hundredarii</i> are mentioned in Rot. Hundr. ii. 689.</p></div>
+
+<div class="footnote"><p><a name="Footnote_393_393" id="Footnote_393_393"></a><a href="#FNanchor_393_393"><span class="label">[393]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_394_394" id="Footnote_394_394"></a><a href="#FNanchor_394_394"><span class="label">[394]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_395_395" id="Footnote_395_395"></a><a href="#FNanchor_395_395"><span class="label">[395]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_396_396" id="Footnote_396_396"></a><a href="#FNanchor_396_396"><span class="label">[396]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_397_397" id="Footnote_397_397"></a><a href="#FNanchor_397_397"><span class="label">[397]</span></a> Seebohm, Village Community, 37, 38; Scrutton, Common Fields, 39.</p></div>
+
+<div class="footnote"><p><a name="Footnote_398_398" id="Footnote_398_398"></a><a href="#FNanchor_398_398"><span class="label">[398]</span></a> See the instances collected by Maitland, Introduction to Rolls of Manorial
+Courts, Selden Soc., Ser. II, p. xxix, note 2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_399_399" id="Footnote_399_399"></a><a href="#FNanchor_399_399"><span class="label">[399]</span></a> Maitland, op. c.</p></div>
+
+<div class="footnote"><p><a name="Footnote_400_400" id="Footnote_400_400"></a><a href="#FNanchor_400_400"><span class="label">[400]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_401_401" id="Footnote_401_401"></a><a href="#FNanchor_401_401"><span class="label">[401]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_402_402" id="Footnote_402_402"></a><a href="#FNanchor_402_402"><span class="label">[402]</span></a> Britton, i. 177 sqq. See Maitland's Introd. to Manorial Rolls, p. xxvii.</p></div>
+
+<div class="footnote"><p><a name="Footnote_403_403" id="Footnote_403_403"></a><a href="#FNanchor_403_403"><span class="label">[403]</span></a> Maitland, op. c. pp. xxix, xxx.</p></div>
+
+<div class="footnote"><p><a name="Footnote_404_404" id="Footnote_404_404"></a><a href="#FNanchor_404_404"><span class="label">[404]</span></a> 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'?</p></div>
+
+<div class="footnote"><p><a name="Footnote_405_405" id="Footnote_405_405"></a><a href="#FNanchor_405_405"><span class="label">[405]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_406_406" id="Footnote_406_406"></a><a href="#FNanchor_406_406"><span class="label">[406]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_407_407" id="Footnote_407_407"></a><a href="#FNanchor_407_407"><span class="label">[407]</span></a> Cf. Maitland, Suitors of the County Court, Eng. Hist. Review, July,
+1888.</p></div>
+
+<div class="footnote"><p><a name="Footnote_408_408" id="Footnote_408_408"></a><a href="#FNanchor_408_408"><span class="label">[408]</span></a> 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
+(<i>corr.</i> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_409_409" id="Footnote_409_409"></a><a href="#FNanchor_409_409"><span class="label">[409]</span></a> Y.B. 21/22 Edw. I. (ed. Horwood), pp. xix, 499.</p></div>
+
+<div class="footnote"><p><a name="Footnote_410_410" id="Footnote_410_410"></a><a href="#FNanchor_410_410"><span class="label">[410]</span></a> I may be excused for again referring to the Stoneleigh Reg. f. 32, d:
+'Quidam tenentes eiusdem manerii tenent terras et tenementa sua in <i>Sokemannia
+in feodo et hereditate</i> de qua quidem tenura talis habetur et omne tempore
+habebatur consuetudo videlicet quod quando aliquis tenens eiusdem
+tenure terram suam alicui alienare voluerit veniat <i>in curiam</i> 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
+<i>in curia</i> in forma predicta, quod terra <i>sic extra curia</i> alienata domino dicti
+manerii erit forisfacta in perpetuum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_411_411" id="Footnote_411_411"></a><a href="#FNanchor_411_411"><span class="label">[411]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_412_412" id="Footnote_412_412"></a><a href="#FNanchor_412_412"><span class="label">[412]</span></a> Rot. Hundr. ii. 608, a: 'Liberi tenentes ... liberi sokemanni.' Cf. 752, a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_413_413" id="Footnote_413_413"></a><a href="#FNanchor_413_413"><span class="label">[413]</span></a> 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. <a href="#APPENDIX_XII">See Appendix xii.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_414_414" id="Footnote_414_414"></a><a href="#FNanchor_414_414"><span class="label">[414]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_415_415" id="Footnote_415_415"></a><a href="#FNanchor_415_415"><span class="label">[415]</span></a> Rot. Hundr. ii. 501, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_416_416" id="Footnote_416_416"></a><a href="#FNanchor_416_416"><span class="label">[416]</span></a> Rot Hundr. ii. 774.</p></div>
+
+<div class="footnote"><p><a name="Footnote_417_417" id="Footnote_417_417"></a><a href="#FNanchor_417_417"><span class="label">[417]</span></a> Coram Rege, Hill. 30 Edw. I, m. 17 '(servicia sokemannorum) ...
+merchet ad voluntatem.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_418_418" id="Footnote_418_418"></a><a href="#FNanchor_418_418"><span class="label">[418]</span></a> Rot. Hundr. ii. 846, a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_419_419" id="Footnote_419_419"></a><a href="#FNanchor_419_419"><span class="label">[419]</span></a> Rot. Hundr. ii. 781, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_420_420" id="Footnote_420_420"></a><a href="#FNanchor_420_420"><span class="label">[420]</span></a> Peterborough Cart., Cotton MSS., Faustina, B. iii. f. 97, 98.</p></div>
+
+<div class="footnote"><p><a name="Footnote_421_421" id="Footnote_421_421"></a><a href="#FNanchor_421_421"><span class="label">[421]</span></a> Spalding Priory Cart., Cole MSS., xliii. p. 296.</p></div>
+
+<div class="footnote"><p><a name="Footnote_422_422" id="Footnote_422_422"></a><a href="#FNanchor_422_422"><span class="label">[422]</span></a> Rot. Hundr. ii. 780 b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_423_423" id="Footnote_423_423"></a><a href="#FNanchor_423_423"><span class="label">[423]</span></a> Spalding Cart. p. 295.</p></div>
+
+<div class="footnote"><p><a name="Footnote_424_424" id="Footnote_424_424"></a><a href="#FNanchor_424_424"><span class="label">[424]</span></a> Ibid. p. 283: '<i>bondus</i> dat auxilium ... scil. omnes <i>sokemanni</i> unam
+marcam.' Cf. 292.</p></div>
+
+<div class="footnote"><p><a name="Footnote_425_425" id="Footnote_425_425"></a><a href="#FNanchor_425_425"><span class="label">[425]</span></a> Ely Inqu., Cotton MS., Claudius, C. xi. 50, b: 'Tota villata tam liberi,
+quam alii debent facere 40 perticatas super Calcetum de <i>Alderhe</i> [Aldreth's
+Causeway] sine cibo et opere.' Cf. Domesday of St. Paul's, 75.</p></div>
+
+<div class="footnote"><p><a name="Footnote_426_426" id="Footnote_426_426"></a><a href="#FNanchor_426_426"><span class="label">[426]</span></a> Domesday of St. Paul's, 76, 77; Rot. Hundr. ii. 764, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_427_427" id="Footnote_427_427"></a><a href="#FNanchor_427_427"><span class="label">[427]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_428_428" id="Footnote_428_428"></a><a href="#FNanchor_428_428"><span class="label">[428]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_429_429" id="Footnote_429_429"></a><a href="#FNanchor_429_429"><span class="label">[429]</span></a> Gloucester Cart. iii. 49 and 46; Battle Cart., Augm. Off. Misc. Books,
+N. 57, f. 10, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_430_430" id="Footnote_430_430"></a><a href="#FNanchor_430_430"><span class="label">[430]</span></a> Ely Inqu., Cotton MSS., Claudius, C. xi. f. 186, b: 'Omnes custumarii
+preter liberos qui non dant gersumam pro filiis et filiabus ...'</p></div>
+
+<div class="footnote"><p><a name="Footnote_431_431" id="Footnote_431_431"></a><a href="#FNanchor_431_431"><span class="label">[431]</span></a> E. g. ibid. 44, a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_432_432" id="Footnote_432_432"></a><a href="#FNanchor_432_432"><span class="label">[432]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_433_433" id="Footnote_433_433"></a><a href="#FNanchor_433_433"><span class="label">[433]</span></a> Rot. Hundr. ii 484, b; 485, a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_434_434" id="Footnote_434_434"></a><a href="#FNanchor_434_434"><span class="label">[434]</span></a> Ibid. ii 749, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_435_435" id="Footnote_435_435"></a><a href="#FNanchor_435_435"><span class="label">[435]</span></a> Ibid. i. 6.</p></div>
+
+<div class="footnote"><p><a name="Footnote_436_436" id="Footnote_436_436"></a><a href="#FNanchor_436_436"><span class="label">[436]</span></a> Coram Rege, Trin., 3 Edw. I, m. 14, d.</p></div>
+
+<div class="footnote"><p><a name="Footnote_437_437" id="Footnote_437_437"></a><a href="#FNanchor_437_437"><span class="label">[437]</span></a> Rot. Hundr. i. 19.</p></div>
+
+<div class="footnote"><p><a name="Footnote_438_438" id="Footnote_438_438"></a><a href="#FNanchor_438_438"><span class="label">[438]</span></a> Cf. a very definite case of oppression, Placit. Abbrev., 150.</p></div>
+
+<div class="footnote"><p><a name="Footnote_439_439" id="Footnote_439_439"></a><a href="#FNanchor_439_439"><span class="label">[439]</span></a> Statutes of the Realm, i. 224.</p></div>
+
+<div class="footnote"><p><a name="Footnote_440_440" id="Footnote_440_440"></a><a href="#FNanchor_440_440"><span class="label">[440]</span></a> Notebook of Bracton, pl. 1334 and 1644.</p></div>
+
+<div class="footnote"><p><a name="Footnote_441_441" id="Footnote_441_441"></a><a href="#FNanchor_441_441"><span class="label">[441]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_442_442" id="Footnote_442_442"></a><a href="#FNanchor_442_442"><span class="label">[442]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_443_443" id="Footnote_443_443"></a><a href="#FNanchor_443_443"><span class="label">[443]</span></a> Cf. Elton, Tenures of Kent.</p></div>
+
+<div class="footnote"><p><a name="Footnote_444_444" id="Footnote_444_444"></a><a href="#FNanchor_444_444"><span class="label">[444]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_445_445" id="Footnote_445_445"></a><a href="#FNanchor_445_445"><span class="label">[445]</span></a> Seebohm, Village Community, 103; followed by Scrutton, Commons and
+Common Fields, 38; and Ashley, Economic History, i. 18.</p></div>
+
+<div class="footnote"><p><a name="Footnote_446_446" id="Footnote_446_446"></a><a href="#FNanchor_446_446"><span class="label">[446]</span></a> Maitland, Introduction to Manorial Rolls, lxix.</p></div>
+
+<div class="footnote"><p><a name="Footnote_447_447" id="Footnote_447_447"></a><a href="#FNanchor_447_447"><span class="label">[447]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_448_448" id="Footnote_448_448"></a><a href="#FNanchor_448_448"><span class="label">[448]</span></a> 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.&mdash;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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_449_449" id="Footnote_449_449"></a><a href="#FNanchor_449_449"><span class="label">[449]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_450_450" id="Footnote_450_450"></a><a href="#FNanchor_450_450"><span class="label">[450]</span></a> It should be observed that the word demesne (<i>dominicum</i>) is constantly
+used in two different senses, (<i>a</i>) 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 (<i>b</i>) 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 <i>dominicum</i> is contrasted
+with the <i>villenagium</i> or <i>bondagium</i>. 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 (<i>in dominico suo</i>). 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_451_451" id="Footnote_451_451"></a><a href="#FNanchor_451_451"><span class="label">[451]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_452_452" id="Footnote_452_452"></a><a href="#FNanchor_452_452"><span class="label">[452]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_453_453" id="Footnote_453_453"></a><a href="#FNanchor_453_453"><span class="label">[453]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_454_454" id="Footnote_454_454"></a><a href="#FNanchor_454_454"><span class="label">[454]</span></a> 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.'&mdash;(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<sup>xx</sup> acres' (sic, corr. ix<sup>xx</sup>). '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<sup>xx</sup> acres.' Cf.
+Thorold Rogers, Six Centuries, 75.</p></div>
+
+<div class="footnote"><p><a name="Footnote_455_455" id="Footnote_455_455"></a><a href="#FNanchor_455_455"><span class="label">[455]</span></a> Fleta, ii. 72.</p></div>
+
+<div class="footnote"><p><a name="Footnote_456_456" id="Footnote_456_456"></a><a href="#FNanchor_456_456"><span class="label">[456]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_457_457" id="Footnote_457_457"></a><a href="#FNanchor_457_457"><span class="label">[457]</span></a> 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.' <a href="#APPENDIX_XII">See App. xii.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_458_458" id="Footnote_458_458"></a><a href="#FNanchor_458_458"><span class="label">[458]</span></a> 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.'&mdash;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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_459_459" id="Footnote_459_459"></a><a href="#FNanchor_459_459"><span class="label">[459]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_460_460" id="Footnote_460_460"></a><a href="#FNanchor_460_460"><span class="label">[460]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_461_461" id="Footnote_461_461"></a><a href="#FNanchor_461_461"><span class="label">[461]</span></a> Gloucester Cart., iii. 194: 'Robertus Abovetun tenet unam virgatam terre
+continentem 44 acras in utroque campo.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_462_462" id="Footnote_462_462"></a><a href="#FNanchor_462_462"><span class="label">[462]</span></a> 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 &frac12; in uno campo et 12 et dimidiam in alio.
+T. le F. tenet unam virgatam, 16 acras in uno campo et 12 in alio.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_463_463" id="Footnote_463_463"></a><a href="#FNanchor_463_463"><span class="label">[463]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_464_464" id="Footnote_464_464"></a><a href="#FNanchor_464_464"><span class="label">[464]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_465_465" id="Footnote_465_465"></a><a href="#FNanchor_465_465"><span class="label">[465]</span></a> Eynsham Cart., Christ Church, Oxford, MSS., N. 27, f. 74, b: 'Placitum
+de Haneberge in recordo de banco de termino S<sup>ti</sup> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_466_466" id="Footnote_466_466"></a><a href="#FNanchor_466_466"><span class="label">[466]</span></a> Some of these expressions are interesting. <i>Balk</i> is the O.N. <i>b&#551;lkr</i>; <i>gora</i>
+is the spear-head or its long triangular shape, O.E. <i>g&#551;r</i>, O.N. <i>geírr</i>. These
+linguistic affinities have been pointed out to me by Mr. F. York Powell.</p></div>
+
+<div class="footnote"><p><a name="Footnote_467_467" id="Footnote_467_467"></a><a href="#FNanchor_467_467"><span class="label">[467]</span></a> Alvingham Priory Cart., Laud MSS. 642 (Bodleian), f. 12. Cf. Malmesbury
+Cart. ii. 294; Madox, History of the Exchequer, 258.</p></div>
+
+<div class="footnote"><p><a name="Footnote_468_468" id="Footnote_468_468"></a><a href="#FNanchor_468_468"><span class="label">[468]</span></a> Eynsham Cart., 5, a: 'I.I. virgatarius ... Idem tenet unam selionem
+terre apud Blakelond non mensuratam.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_469_469" id="Footnote_469_469"></a><a href="#FNanchor_469_469"><span class="label">[469]</span></a> Domesday of St. Paul's, 11: 'Laurencius de hospitale dimidiam virgatam
+pro 40 denariis; tres acre quas tenuit Laurencius sine servicio inveniri
+non possunt.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_470_470" id="Footnote_470_470"></a><a href="#FNanchor_470_470"><span class="label">[470]</span></a> Dunstable Priory Cart., Harleian MSS. 1885, f. 7, d. <a href="#APPENDIX_XIII">See Appendix xiii.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_471_471" id="Footnote_471_471"></a><a href="#FNanchor_471_471"><span class="label">[471]</span></a> Elton, English Historical Review, i. 435.</p></div>
+
+<div class="footnote"><p><a name="Footnote_472_472" id="Footnote_472_472"></a><a href="#FNanchor_472_472"><span class="label">[472]</span></a> The expressions are not identical, but they ought both to correspond to
+the ploughteam.</p></div>
+
+<div class="footnote"><p><a name="Footnote_473_473" id="Footnote_473_473"></a><a href="#FNanchor_473_473"><span class="label">[473]</span></a> As to all this, see Seebohm, Village Community.</p></div>
+
+<div class="footnote"><p><a name="Footnote_474_474" id="Footnote_474_474"></a><a href="#FNanchor_474_474"><span class="label">[474]</span></a> Glastonbury Inqu. (Roxburghe Ser.), 144. v. Hide, virgate.</p></div>
+
+<div class="footnote"><p><a name="Footnote_475_475" id="Footnote_475_475"></a><a href="#FNanchor_475_475"><span class="label">[475]</span></a> Eynsham Cart., 4, a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_476_476" id="Footnote_476_476"></a><a href="#FNanchor_476_476"><span class="label">[476]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_477_477" id="Footnote_477_477"></a><a href="#FNanchor_477_477"><span class="label">[477]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_478_478" id="Footnote_478_478"></a><a href="#FNanchor_478_478"><span class="label">[478]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_479_479" id="Footnote_479_479"></a><a href="#FNanchor_479_479"><span class="label">[479]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_480_480" id="Footnote_480_480"></a><a href="#FNanchor_480_480"><span class="label">[480]</span></a> Chapter-house Boxes, A. 4/22, m. 31-33.</p></div>
+
+<div class="footnote"><p><a name="Footnote_481_481" id="Footnote_481_481"></a><a href="#FNanchor_481_481"><span class="label">[481]</span></a> Ramsey Cart. (Rolls Ser.), i. 354: 'Aliquando 48 acre faciunt virgatam
+et aliquando pauciores.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_482_482" id="Footnote_482_482"></a><a href="#FNanchor_482_482"><span class="label">[482]</span></a> Rot. Hundr., ii. 628, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_483_483" id="Footnote_483_483"></a><a href="#FNanchor_483_483"><span class="label">[483]</span></a> Glastonbury Inqu. (Roxburghe Ser.), 134: '... R. de W. unam virgatam
+pro 4 solidis pro omni servicio quia terra parva est.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_484_484" id="Footnote_484_484"></a><a href="#FNanchor_484_484"><span class="label">[484]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_485_485" id="Footnote_485_485"></a><a href="#FNanchor_485_485"><span class="label">[485]</span></a> O.C. Pell in the Transactions of the Cambridge Archaeological Society,
+vi. 17 sqq., 63 sqq.</p></div>
+
+<div class="footnote"><p><a name="Footnote_486_486" id="Footnote_486_486"></a><a href="#FNanchor_486_486"><span class="label">[486]</span></a> Ely Inqu., Claudius, C xi. 30, a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_487_487" id="Footnote_487_487"></a><a href="#FNanchor_487_487"><span class="label">[487]</span></a> Duchy of Lancaster Court Rolls, B<sup>le</sup> 62, N. 750; 3, b. Burton Cartulary,
+Transactions of the Staffordshire William Salt Society, pp. 22, 28.</p></div>
+
+<div class="footnote"><p><a name="Footnote_488_488" id="Footnote_488_488"></a><a href="#FNanchor_488_488"><span class="label">[488]</span></a> Ely Inqu., 31, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_489_489" id="Footnote_489_489"></a><a href="#FNanchor_489_489"><span class="label">[489]</span></a> Burton Cart. (William Salt Ser.), 22, 28. Compare Peoples, Ranks and
+Laws, cap. 3 (Schmid, p. 388).</p></div>
+
+<div class="footnote"><p><a name="Footnote_490_490" id="Footnote_490_490"></a><a href="#FNanchor_490_490"><span class="label">[490]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_491_491" id="Footnote_491_491"></a><a href="#FNanchor_491_491"><span class="label">[491]</span></a> Beaulieu Cart., 103: 'Et inveniet hominem ad gurgitem faciendum et
+waram.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_492_492" id="Footnote_492_492"></a><a href="#FNanchor_492_492"><span class="label">[492]</span></a> Rot. Hundr., ii. 323: 'Tenementum quod non est hidatum nec feodatum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_493_493" id="Footnote_493_493"></a><a href="#FNanchor_493_493"><span class="label">[493]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_494_494" id="Footnote_494_494"></a><a href="#FNanchor_494_494"><span class="label">[494]</span></a> Ramsey Cart. i. 441: 'Terrae quae sunt extra hydam et quae non dant
+hydagium.' 355: 'Virgatam extra hydam firmarius appropriavit.' 324:
+'Ponere extra hydam.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_495_495" id="Footnote_495_495"></a><a href="#FNanchor_495_495"><span class="label">[495]</span></a> Ibid. 473: 'Villata defendit, etc. versus Regem pro 10 hydis et versus
+abbatem pro 11 hydis et dimidia.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_496_496" id="Footnote_496_496"></a><a href="#FNanchor_496_496"><span class="label">[496]</span></a> Ely Inqu., Cotton MSS., Claudius, C. xi. 38, b: 'Plena terra que facit
+12 acras de ware.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_497_497" id="Footnote_497_497"></a><a href="#FNanchor_497_497"><span class="label">[497]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_498_498" id="Footnote_498_498"></a><a href="#FNanchor_498_498"><span class="label">[498]</span></a> Duchy of Lancaster, B<sup>le</sup> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_499_499" id="Footnote_499_499"></a><a href="#FNanchor_499_499"><span class="label">[499]</span></a> 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<sup>ti</sup>
+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<sup>ti</sup> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_500_500" id="Footnote_500_500"></a><a href="#FNanchor_500_500"><span class="label">[500]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_501_501" id="Footnote_501_501"></a><a href="#FNanchor_501_501"><span class="label">[501]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_502_502" id="Footnote_502_502"></a><a href="#FNanchor_502_502"><span class="label">[502]</span></a> Domesday of St Paul's, 38 sqq. Comp. Ramsey Cart., i. 413.</p></div>
+
+<div class="footnote"><p><a name="Footnote_503_503" id="Footnote_503_503"></a><a href="#FNanchor_503_503"><span class="label">[503]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_504_504" id="Footnote_504_504"></a><a href="#FNanchor_504_504"><span class="label">[504]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_505_505" id="Footnote_505_505"></a><a href="#FNanchor_505_505"><span class="label">[505]</span></a> Inqu. post mort. 55 Henry III, N. 33: 'Redditarii qui vocantur selfoders.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_506_506" id="Footnote_506_506"></a><a href="#FNanchor_506_506"><span class="label">[506]</span></a> 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]).</p></div>
+
+<div class="footnote"><p><a name="Footnote_507_507" id="Footnote_507_507"></a><a href="#FNanchor_507_507"><span class="label">[507]</span></a> See Hanauer, Les paysans de l'Alsace au Moyen Age.</p></div>
+
+<div class="footnote"><p><a name="Footnote_508_508" id="Footnote_508_508"></a><a href="#FNanchor_508_508"><span class="label">[508]</span></a> Domesday of St. Paul's, xv. 7; Gloucester Cartulary, iii. 55, 61; Cartulary
+of Christ Church, Canterbury, Add. MSS. 6759, f. 21, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_509_509" id="Footnote_509_509"></a><a href="#FNanchor_509_509"><span class="label">[509]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_510_510" id="Footnote_510_510"></a><a href="#FNanchor_510_510"><span class="label">[510]</span></a> Ely Inqu., 72 b; comp. 24, b; Gloucester Cart., iii. 183.</p></div>
+
+<div class="footnote"><p><a name="Footnote_511_511" id="Footnote_511_511"></a><a href="#FNanchor_511_511"><span class="label">[511]</span></a> 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<sup>le</sup> 513, N. 97: 'Estimatur quod communiter
+tres custumarii possunt facere unam carucam (tenent 20 acras).'</p></div>
+
+<div class="footnote"><p><a name="Footnote_512_512" id="Footnote_512_512"></a><a href="#FNanchor_512_512"><span class="label">[512]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_513_513" id="Footnote_513_513"></a><a href="#FNanchor_513_513"><span class="label">[513]</span></a> Black Book of St. Augustine's, 53.</p></div>
+
+<div class="footnote"><p><a name="Footnote_514_514" id="Footnote_514_514"></a><a href="#FNanchor_514_514"><span class="label">[514]</span></a> Domesday of St. Paul's, 58.</p></div>
+
+<div class="footnote"><p><a name="Footnote_515_515" id="Footnote_515_515"></a><a href="#FNanchor_515_515"><span class="label">[515]</span></a> Augm. Off. Misc. Books, N. 57, f. 65, b. See Cartulary of Battle Abbey
+(Camd. Soc.), p. 133.</p></div>
+
+<div class="footnote"><p><a name="Footnote_516_516" id="Footnote_516_516"></a><a href="#FNanchor_516_516"><span class="label">[516]</span></a> 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<i>u</i>nmanland, or else it
+may be a mark of a beginning of cultivation in Danish times.</p></div>
+
+<div class="footnote"><p><a name="Footnote_517_517" id="Footnote_517_517"></a><a href="#FNanchor_517_517"><span class="label">[517]</span></a> Chapter-house Books, A. 4/22, p. 21: 'Custumarii tenent 22 virgatas
+quas vocant wistas.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_518_518" id="Footnote_518_518"></a><a href="#FNanchor_518_518"><span class="label">[518]</span></a> Battle Abbey Cart., Augment. Off. Misc. Books, N. 57, f. 27, a; comp.
+15, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_519_519" id="Footnote_519_519"></a><a href="#FNanchor_519_519"><span class="label">[519]</span></a> Glastonbury Inqu. (Roxburghe Ser.), 66, 90.</p></div>
+
+<div class="footnote"><p><a name="Footnote_520_520" id="Footnote_520_520"></a><a href="#FNanchor_520_520"><span class="label">[520]</span></a> Worcester Cart., 41, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_521_521" id="Footnote_521_521"></a><a href="#FNanchor_521_521"><span class="label">[521]</span></a> Glastonbury Inqu., 67, 70; Rot. Hundr., ii. 404, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_522_522" id="Footnote_522_522"></a><a href="#FNanchor_522_522"><span class="label">[522]</span></a> Gloucester Cart., iii. 207.</p></div>
+
+<div class="footnote"><p><a name="Footnote_523_523" id="Footnote_523_523"></a><a href="#FNanchor_523_523"><span class="label">[523]</span></a> Abingdon Cart., ii. 304: 'In dominio camerae sunt 4 hidae uno cotsettel
+minus.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_524_524" id="Footnote_524_524"></a><a href="#FNanchor_524_524"><span class="label">[524]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_525_525" id="Footnote_525_525"></a><a href="#FNanchor_525_525"><span class="label">[525]</span></a> Domesday of St. Paul's, 19; Ramsey Cart. (Rolls Ser.), i. 309.</p></div>
+
+<div class="footnote"><p><a name="Footnote_526_526" id="Footnote_526_526"></a><a href="#FNanchor_526_526"><span class="label">[526]</span></a> Gloucester Cart., iii. 61.</p></div>
+
+<div class="footnote"><p><a name="Footnote_527_527" id="Footnote_527_527"></a><a href="#FNanchor_527_527"><span class="label">[527]</span></a> Black Book of St. Augustine's, 57.</p></div>
+
+<div class="footnote"><p><a name="Footnote_528_528" id="Footnote_528_528"></a><a href="#FNanchor_528_528"><span class="label">[528]</span></a> Ibid.</p></div>
+
+<div class="footnote"><p><a name="Footnote_529_529" id="Footnote_529_529"></a><a href="#FNanchor_529_529"><span class="label">[529]</span></a> Domesday of St. Paul's, 49.</p></div>
+
+<div class="footnote"><p><a name="Footnote_530_530" id="Footnote_530_530"></a><a href="#FNanchor_530_530"><span class="label">[530]</span></a> Gloucester Cart., ii. 109.</p></div>
+
+<div class="footnote"><p><a name="Footnote_531_531" id="Footnote_531_531"></a><a href="#FNanchor_531_531"><span class="label">[531]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_532_532" id="Footnote_532_532"></a><a href="#FNanchor_532_532"><span class="label">[532]</span></a> Glastonbury Inqu., 2: 'In marisco 110 acras terrae et quoddam molendinum,
+et octo deneratas terrae secus molendinum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_533_533" id="Footnote_533_533"></a><a href="#FNanchor_533_533"><span class="label">[533]</span></a> 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<sup>ti</sup> Michaelis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_534_534" id="Footnote_534_534"></a><a href="#FNanchor_534_534"><span class="label">[534]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_535_535" id="Footnote_535_535"></a><a href="#FNanchor_535_535"><span class="label">[535]</span></a> A very good instance is supplied by Williams, Rights of Common, 89,
+90. Cf. Birkbeck, Sketch of the Distribution of Land in England, 19.</p></div>
+
+<div class="footnote"><p><a name="Footnote_536_536" id="Footnote_536_536"></a><a href="#FNanchor_536_536"><span class="label">[536]</span></a> Gloucester Cart. iii. 67 (Extenta de Berthona Regis): 'De pastura separabili
+dicunt quod Rex habet quandam moram quae continet 4&frac12; 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_537_537" id="Footnote_537_537"></a><a href="#FNanchor_537_537"><span class="label">[537]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_538_538" id="Footnote_538_538"></a><a href="#FNanchor_538_538"><span class="label">[538]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_539_539" id="Footnote_539_539"></a><a href="#FNanchor_539_539"><span class="label">[539]</span></a> 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<sup>to</sup> ... 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_540_540" id="Footnote_540_540"></a><a href="#FNanchor_540_540"><span class="label">[540]</span></a> In a case of 1233 (Note-book of Bracton, 749) it is complained,&mdash;'Cum
+idem Robertus non possit aliena aueria in pasturam illam recolligere, scil.
+hominum alterius religionis,' etc.</p></div>
+
+<div class="footnote"><p><a name="Footnote_541_541" id="Footnote_541_541"></a><a href="#FNanchor_541_541"><span class="label">[541]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_542_542" id="Footnote_542_542"></a><a href="#FNanchor_542_542"><span class="label">[542]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_543_543" id="Footnote_543_543"></a><a href="#FNanchor_543_543"><span class="label">[543]</span></a> 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 <i>horn unherhorn</i> 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&mdash;durcheinander.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_544_544" id="Footnote_544_544"></a><a href="#FNanchor_544_544"><span class="label">[544]</span></a> 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<sup>ti</sup> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_545_545" id="Footnote_545_545"></a><a href="#FNanchor_545_545"><span class="label">[545]</span></a> 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<sup>ti</sup> Martini, cum villatis vero de Astone Cote
+et Elcforde a festo S<sup>ti</sup> Michaelis usque dictum festum S<sup>ti</sup> Martini.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_546_546" id="Footnote_546_546"></a><a href="#FNanchor_546_546"><span class="label">[546]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_547_547" id="Footnote_547_547"></a><a href="#FNanchor_547_547"><span class="label">[547]</span></a> 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 <i>Quo Jure</i> was an 'actio negatoria.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_548_548" id="Footnote_548_548"></a><a href="#FNanchor_548_548"><span class="label">[548]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_549_549" id="Footnote_549_549"></a><a href="#FNanchor_549_549"><span class="label">[549]</span></a> Scrutton, Commons and Common Fields, 42.</p></div>
+
+<div class="footnote"><p><a name="Footnote_550_550" id="Footnote_550_550"></a><a href="#FNanchor_550_550"><span class="label">[550]</span></a> Page 37.</p></div>
+
+<div class="footnote"><p><a name="Footnote_551_551" id="Footnote_551_551"></a><a href="#FNanchor_551_551"><span class="label">[551]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_552_552" id="Footnote_552_552"></a><a href="#FNanchor_552_552"><span class="label">[552]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_553_553" id="Footnote_553_553"></a><a href="#FNanchor_553_553"><span class="label">[553]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_554_554" id="Footnote_554_554"></a><a href="#FNanchor_554_554"><span class="label">[554]</span></a> 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, <i>secundum consuetudinem
+locorum</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_555_555" id="Footnote_555_555"></a><a href="#FNanchor_555_555"><span class="label">[555]</span></a> Scrutton, 55.</p></div>
+
+<div class="footnote"><p><a name="Footnote_556_556" id="Footnote_556_556"></a><a href="#FNanchor_556_556"><span class="label">[556]</span></a> Cartulary of Christ Church, Harl. MSS. 1006, p. 3: 'Prior et conventus
+est capitalis dominus commune pasture de B.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_557_557" id="Footnote_557_557"></a><a href="#FNanchor_557_557"><span class="label">[557]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_558_558" id="Footnote_558_558"></a><a href="#FNanchor_558_558"><span class="label">[558]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_559_559" id="Footnote_559_559"></a><a href="#FNanchor_559_559"><span class="label">[559]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_560_560" id="Footnote_560_560"></a><a href="#FNanchor_560_560"><span class="label">[560]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_561_561" id="Footnote_561_561"></a><a href="#FNanchor_561_561"><span class="label">[561]</span></a> Note-book of Bracton, 1975.</p></div>
+
+<div class="footnote"><p><a name="Footnote_562_562" id="Footnote_562_562"></a><a href="#FNanchor_562_562"><span class="label">[562]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_563_563" id="Footnote_563_563"></a><a href="#FNanchor_563_563"><span class="label">[563]</span></a> See Scrutton, 63, 64.</p></div>
+
+<div class="footnote"><p><a name="Footnote_564_564" id="Footnote_564_564"></a><a href="#FNanchor_564_564"><span class="label">[564]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_565_565" id="Footnote_565_565"></a><a href="#FNanchor_565_565"><span class="label">[565]</span></a> This is directly stated by Bracton, f. 228, b; vide supra.</p></div>
+
+<div class="footnote"><p><a name="Footnote_566_566" id="Footnote_566_566"></a><a href="#FNanchor_566_566"><span class="label">[566]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_567_567" id="Footnote_567_567"></a><a href="#FNanchor_567_567"><span class="label">[567]</span></a> Rot. Hundr. 613, b: 'Et omnes libere tenentes ... communicant in
+bosco de A. cum omnibus bestiis suis libere per totum annum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_568_568" id="Footnote_568_568"></a><a href="#FNanchor_568_568"><span class="label">[568]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_569_569" id="Footnote_569_569"></a><a href="#FNanchor_569_569"><span class="label">[569]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_570_570" id="Footnote_570_570"></a><a href="#FNanchor_570_570"><span class="label">[570]</span></a> Worcester Cart. (Camden Ser.), 62, b: 'Quaelibet virgata tenet 3 feorthendels
+de Bruera, et dimidia virgata 1 feorthendel et dimidium.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_571_571" id="Footnote_571_571"></a><a href="#FNanchor_571_571"><span class="label">[571]</span></a> For instance, Madox, Exch. 1, 27, n. 47: 'Habebunt turbas sufficientes
+in predicta mora ad focalium fratrum ... secundum quantitatem terrarum
+suarum in eadem villa.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_572_572" id="Footnote_572_572"></a><a href="#FNanchor_572_572"><span class="label">[572]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_573_573" id="Footnote_573_573"></a><a href="#FNanchor_573_573"><span class="label">[573]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_574_574" id="Footnote_574_574"></a><a href="#FNanchor_574_574"><span class="label">[574]</span></a> Add. MSS. 6159, f. 44, a: '(Leyesdon) ... debet quelibet caruca coniuncta
+arrare unam acram et habebunt 3 denarios pro acra et quadrantem.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_575_575" id="Footnote_575_575"></a><a href="#FNanchor_575_575"><span class="label">[575]</span></a> Glastonbury Inqu. of 1189 (Roxburghe Ser.), 64: '(Virgatarius) a festo
+S<sup>ti</sup> Michaelis qualibet ebdomada arat unam acram donec tota terra domini
+sit culta.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_576_576" id="Footnote_576_576"></a><a href="#FNanchor_576_576"><span class="label">[576]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_577_577" id="Footnote_577_577"></a><a href="#FNanchor_577_577"><span class="label">[577]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_578_578" id="Footnote_578_578"></a><a href="#FNanchor_578_578"><span class="label">[578]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_579_579" id="Footnote_579_579"></a><a href="#FNanchor_579_579"><span class="label">[579]</span></a> Ramsey Cart. i. 345: 'Qualibet autem septimana, a festo S<sup>ti</sup> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_580_580" id="Footnote_580_580"></a><a href="#FNanchor_580_580"><span class="label">[580]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_581_581" id="Footnote_581_581"></a><a href="#FNanchor_581_581"><span class="label">[581]</span></a> 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: '<i>Gauilherth</i>: 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_582_582" id="Footnote_582_582"></a><a href="#FNanchor_582_582"><span class="label">[582]</span></a> 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 (<i>sic. corr.</i> a die) ad Vincula S<sup>ti</sup> Petri usque ad
+festum beate Marie in Marcio et prata dominica postquam fenum fuerit
+cariatum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_583_583" id="Footnote_583_583"></a><a href="#FNanchor_583_583"><span class="label">[583]</span></a> Glastonbury Cart., Wood MSS. 1, f. 44, b: 'Tenens dimidiam hidam
+habet 4 animalia in pascius quieta, et si plus habuerit&mdash;arabit et herciabit
+pro unoquoque dimidiam acram.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_584_584" id="Footnote_584_584"></a><a href="#FNanchor_584_584"><span class="label">[584]</span></a> 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<sup>ti</sup> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_585_585" id="Footnote_585_585"></a><a href="#FNanchor_585_585"><span class="label">[585]</span></a> Exch. Q.R. Min. Acc. Bk. 514; T.G. 41, 173: '(Extenta manerii de
+Burgo) medwelond ... debent arare tantam terram quantum habent de prato.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_586_586" id="Footnote_586_586"></a><a href="#FNanchor_586_586"><span class="label">[586]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_587_587" id="Footnote_587_587"></a><a href="#FNanchor_587_587"><span class="label">[587]</span></a> Gloucester Cart. iii. 115: 'Johannes Barefoth tenet dimidiam virgatam
+terre continentem 24 acras ... et debet arare qualibet secunda septimana
+a festo S<sup>ti</sup> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_588_588" id="Footnote_588_588"></a><a href="#FNanchor_588_588"><span class="label">[588]</span></a> Ely Inqu., Cotton MSS. Claudius, C. xi, f. 45, a: 'Preterea idem arabit
+de Lentenerþe dimidiam acram.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_589_589" id="Footnote_589_589"></a><a href="#FNanchor_589_589"><span class="label">[589]</span></a> 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 (<i>sic</i>). Item arabit in estate
+3 acras et de beneerthe 3 rodas ut in hyeme, set nihil arabit de filsingerþe.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_590_590" id="Footnote_590_590"></a><a href="#FNanchor_590_590"><span class="label">[590]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_591_591" id="Footnote_591_591"></a><a href="#FNanchor_591_591"><span class="label">[591]</span></a> Custumal of Bleadon, 189.</p></div>
+
+<div class="footnote"><p><a name="Footnote_592_592" id="Footnote_592_592"></a><a href="#FNanchor_592_592"><span class="label">[592]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_593_593" id="Footnote_593_593"></a><a href="#FNanchor_593_593"><span class="label">[593]</span></a> 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?&mdash;Ely Inqu., Cotton MSS.
+Claudius, C. xi. f. 133, a: 'Et arabit qualibet die a festo S<sup>ti</sup> Michaelis usque
+ad gulam Augusti dimidiam rodam, que faciunt per totum quinque acras....
+Et praeterea arabit unam rodam de Rytnesse.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_594_594" id="Footnote_594_594"></a><a href="#FNanchor_594_594"><span class="label">[594]</span></a> Add. MSS. 6159, f. 53, b: 'Item tota villata de Bocayng debet falcare
+12 acras prati et dimidiam, et valet 4 solidos.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_595_595" id="Footnote_595_595"></a><a href="#FNanchor_595_595"><span class="label">[595]</span></a> Domesday of St. Paul's, 47: 'Et preter hec unaquaque domus hide debet
+metere 3 dimidias acras avene et colligere unum sellionem fabarum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_596_596" id="Footnote_596_596"></a><a href="#FNanchor_596_596"><span class="label">[596]</span></a> Gloucester Cart. iii. 84, 85: 'Ricardus Bissop tenet unum messuagium
+et 10 acras terre ... (operabitur) in messe domini cum 24 hominibus.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_597_597" id="Footnote_597_597"></a><a href="#FNanchor_597_597"><span class="label">[597]</span></a> 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).'</p></div>
+
+<div class="footnote"><p><a name="Footnote_598_598" id="Footnote_598_598"></a><a href="#FNanchor_598_598"><span class="label">[598]</span></a> Ramsey Cart. i. 488: 'Quaelibet domus habens ostium apertum versus
+vicum tam de malmannis quam de cotmannis et operariis inveniet unum
+hominem ad louebone.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_599_599" id="Footnote_599_599"></a><a href="#FNanchor_599_599"><span class="label">[599]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_600_600" id="Footnote_600_600"></a><a href="#FNanchor_600_600"><span class="label">[600]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_601_601" id="Footnote_601_601"></a><a href="#FNanchor_601_601"><span class="label">[601]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_602_602" id="Footnote_602_602"></a><a href="#FNanchor_602_602"><span class="label">[602]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_603_603" id="Footnote_603_603"></a><a href="#FNanchor_603_603"><span class="label">[603]</span></a> Gloucester Cart. i. 110: 'Idem Thomas cum virga sua debet interesse
+operationibus quo ad metebederipas.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_604_604" id="Footnote_604_604"></a><a href="#FNanchor_604_604"><span class="label">[604]</span></a> Glastonbury Inqu. of 1189, p. 91: 'Editha tenet unam mesuagium et
+unam croftam pro 6 d. et fert aquam falcatoribus.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_605_605" id="Footnote_605_605"></a><a href="#FNanchor_605_605"><span class="label">[605]</span></a> Add. MSS. 6159, f. 53, a: 'Item sunt in dicto manerio 22 virgate et
+debent invenire in proxima septimana post festum S<sup>ti</sup> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_606_606" id="Footnote_606_606"></a><a href="#FNanchor_606_606"><span class="label">[606]</span></a> Ely Inqu., Cotton MSS. Claudius C. xi. 38, b: 'Averagium secundum
+turnum vicinorum suorum curtum et longum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_607_607" id="Footnote_607_607"></a><a href="#FNanchor_607_607"><span class="label">[607]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_608_608" id="Footnote_608_608"></a><a href="#FNanchor_608_608"><span class="label">[608]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_609_609" id="Footnote_609_609"></a><a href="#FNanchor_609_609"><span class="label">[609]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_610_610" id="Footnote_610_610"></a><a href="#FNanchor_610_610"><span class="label">[610]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_611_611" id="Footnote_611_611"></a><a href="#FNanchor_611_611"><span class="label">[611]</span></a> Rot. Hundr. ii. 605, b: 'Et faciet averagium super dorsum suum ad
+voluntatem domini.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_612_612" id="Footnote_612_612"></a><a href="#FNanchor_612_612"><span class="label">[612]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_613_613" id="Footnote_613_613"></a><a href="#FNanchor_613_613"><span class="label">[613]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_614_614" id="Footnote_614_614"></a><a href="#FNanchor_614_614"><span class="label">[614]</span></a> See, for instance, Glastonbury Inqu. of 1189, pp. 22, 29; Gloucester
+Cart. iii. 17; Domesday of St. Paul's, 54.</p></div>
+
+<div class="footnote"><p><a name="Footnote_615_615" id="Footnote_615_615"></a><a href="#FNanchor_615_615"><span class="label">[615]</span></a> Cart. of Bury St. Edmunds, Harl. MSS. 3977, f. 82: '(Debet) metere pro
+porcis quilibet dimidiam acram siliginis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_616_616" id="Footnote_616_616"></a><a href="#FNanchor_616_616"><span class="label">[616]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_617_617" id="Footnote_617_617"></a><a href="#FNanchor_617_617"><span class="label">[617]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_618_618" id="Footnote_618_618"></a><a href="#FNanchor_618_618"><span class="label">[618]</span></a> Gloucester Cart. iii. 54: 'Debet a festo S<sup>ti</sup> Michaelis usque ad festum
+S<sup>ti</sup> 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<sup>ti</sup> Petri ad Vincula usque ad festum S<sup>ti</sup> Michaelis nisi festum
+intercurrat qualibet die faciet unam dainam.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_619_619" id="Footnote_619_619"></a><a href="#FNanchor_619_619"><span class="label">[619]</span></a> Add. MSS. 6159, f. 25, a; 53, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_620_620" id="Footnote_620_620"></a><a href="#FNanchor_620_620"><span class="label">[620]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_621_621" id="Footnote_621_621"></a><a href="#FNanchor_621_621"><span class="label">[621]</span></a> Domesday of St. Paul's, 6: 'Et unum quarterium de auena ad foddercorn.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_622_622" id="Footnote_622_622"></a><a href="#FNanchor_622_622"><span class="label">[622]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_623_623" id="Footnote_623_623"></a><a href="#FNanchor_623_623"><span class="label">[623]</span></a> Ely Inqu., Cotton MSS., Claudius, C. xi. 185, b; Bury St. Edmunds
+Cart., Harl. MSS. 3977, f. 84, b.</p></div>
+
+<div class="footnote"><p><a name="Footnote_624_624" id="Footnote_624_624"></a><a href="#FNanchor_624_624"><span class="label">[624]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_625_625" id="Footnote_625_625"></a><a href="#FNanchor_625_625"><span class="label">[625]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_626_626" id="Footnote_626_626"></a><a href="#FNanchor_626_626"><span class="label">[626]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_627_627" id="Footnote_627_627"></a><a href="#FNanchor_627_627"><span class="label">[627]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_628_628" id="Footnote_628_628"></a><a href="#FNanchor_628_628"><span class="label">[628]</span></a> Exch. Q.R. Treas. of Rec. 59 69: 'Capones ... pro warentia.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_629_629" id="Footnote_629_629"></a><a href="#FNanchor_629_629"><span class="label">[629]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_630_630" id="Footnote_630_630"></a><a href="#FNanchor_630_630"><span class="label">[630]</span></a> Domesday of St. Paul's, 51: 'Et ad pascha ova ad libitum tenencium et
+ad honorem domini.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_631_631" id="Footnote_631_631"></a><a href="#FNanchor_631_631"><span class="label">[631]</span></a> 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<sup>ti</sup> Michaelis pretii 8 den. pro omni servitio.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_632_632" id="Footnote_632_632"></a><a href="#FNanchor_632_632"><span class="label">[632]</span></a> Warwickshire Hundr. Roll, Exch. Q.R. Misc. Books, N. 18, f. 2, a: 'Per
+servicium unius radicis gyngibrii ... unius rose.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_633_633" id="Footnote_633_633"></a><a href="#FNanchor_633_633"><span class="label">[633]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_634_634" id="Footnote_634_634"></a><a href="#FNanchor_634_634"><span class="label">[634]</span></a> Add. MSS. 6159, f. 53, a: 'Barlicksilver. Item debet Willelmus de B.
+per annum 6 quarteria ordei et 6 quarteria auene,' etc.</p></div>
+
+<div class="footnote"><p><a name="Footnote_635_635" id="Footnote_635_635"></a><a href="#FNanchor_635_635"><span class="label">[635]</span></a> 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<sup>ti</sup> Martini si habeat equum et carectam.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_636_636" id="Footnote_636_636"></a><a href="#FNanchor_636_636"><span class="label">[636]</span></a> Add. Charters, 5, 629: '(Stephanus) retraxit et abduxit porcos suos
+tempore pannagii.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_637_637" id="Footnote_637_637"></a><a href="#FNanchor_637_637"><span class="label">[637]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_638_638" id="Footnote_638_638"></a><a href="#FNanchor_638_638"><span class="label">[638]</span></a> What may be, for instance, the explanation of the <i>huntenegild</i>, 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<sup>ti</sup> Michaelis 17 denarios.'
+The payment is a very important one and hardly connected with
+hunting.</p></div>
+
+<div class="footnote"><p><a name="Footnote_639_639" id="Footnote_639_639"></a><a href="#FNanchor_639_639"><span class="label">[639]</span></a> Domesday of St. Paul's, 140 (Inqu. of 1181): 'Keneswetha ... summa
+denariorum 10 libre et 7 sol. et obolus.' Cf. xx.</p></div>
+
+<div class="footnote"><p><a name="Footnote_640_640" id="Footnote_640_640"></a><a href="#FNanchor_640_640"><span class="label">[640]</span></a> Battle Cart., Augment. Off. Misc. Books, N. 18, f. 5, a: 'Juga que sunt
+in sex libris in Wy.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_641_641" id="Footnote_641_641"></a><a href="#FNanchor_641_641"><span class="label">[641]</span></a> Christ Church Reg., Harl. MSS. 1006, f. 56: 'Newerentes.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_642_642" id="Footnote_642_642"></a><a href="#FNanchor_642_642"><span class="label">[642]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_643_643" id="Footnote_643_643"></a><a href="#FNanchor_643_643"><span class="label">[643]</span></a> Archaeologia, xlvii. 127: '(Soke of Rothley) Gildi hoc est quietum de
+consuetudinibus servilibus quae quondam dare consueverint sicuti Hornchild
+et hiis similibus.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_644_644" id="Footnote_644_644"></a><a href="#FNanchor_644_644"><span class="label">[644]</span></a> Glastonbury Inqu. of 1189, p. 4: '... unam virgatam et dimidiam et
+5 acras pro 5 solidis de gabulo et 7 denariis de dono.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_645_645" id="Footnote_645_645"></a><a href="#FNanchor_645_645"><span class="label">[645]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_646_646" id="Footnote_646_646"></a><a href="#FNanchor_646_646"><span class="label">[646]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_647_647" id="Footnote_647_647"></a><a href="#FNanchor_647_647"><span class="label">[647]</span></a> Gloucester Cart. iii. 78: 'Dicta terra consuevit dare de auxilio 14 denarios
+et obolum qui modo allocantur consuetudinario in solutione octo
+marcarum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_648_648" id="Footnote_648_648"></a><a href="#FNanchor_648_648"><span class="label">[648]</span></a> Exch. Q.R. Treas. Rec. 20/68: 'Item debent domino ad festum S<sup>ti</sup>
+Michaelis auxilium ad placitum suum et ad forinsecum servitium.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_649_649" id="Footnote_649_649"></a><a href="#FNanchor_649_649"><span class="label">[649]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_650_650" id="Footnote_650_650"></a><a href="#FNanchor_650_650"><span class="label">[650]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_651_651" id="Footnote_651_651"></a><a href="#FNanchor_651_651"><span class="label">[651]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_652_652" id="Footnote_652_652"></a><a href="#FNanchor_652_652"><span class="label">[652]</span></a> Exch. Esch. Ultra Trentam, 1/49: 'Pro cornagio de feodis militum 17
+sol. 8 den.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_653_653" id="Footnote_653_653"></a><a href="#FNanchor_653_653"><span class="label">[653]</span></a> Glastonbury Inqu. of 1189, p. 65: 'In die S<sup>ti</sup> Martini debet dimidiam
+dainam frumenti de cheriset.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_654_654" id="Footnote_654_654"></a><a href="#FNanchor_654_654"><span class="label">[654]</span></a> Domesday of St. Paul's, 66: 'Beatrix relicta Osberti Casse tenet 15
+acras et a festo S<sup>ti</sup> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_655_655" id="Footnote_655_655"></a><a href="#FNanchor_655_655"><span class="label">[655]</span></a> Glastonbury Inqu. of 1189, p. 64: 'A festo S<sup>ti</sup> Petri ad Vincula debent
+qualibet ebdomada metere uel aliud opus facere usque ad festum S<sup>ti</sup> Michaelis
+nisi festum intercurrat, die lune, die martis et die mercurii.' Ibid. 62: 'Ab
+Hoccadei usque ad festum S<sup>ti</sup> Johannis qualibet ebdomada arabit dimidiam
+acram, si possit propter duritiem.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_656_656" id="Footnote_656_656"></a><a href="#FNanchor_656_656"><span class="label">[656]</span></a> Glastonbury Inqu. of 1189, p. 59: 'Willelmus filius Osanore (tenet)
+unam virgatam eodem servitio, sed non potest perficere servitium.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_657_657" id="Footnote_657_657"></a><a href="#FNanchor_657_657"><span class="label">[657]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_658_658" id="Footnote_658_658"></a><a href="#FNanchor_658_658"><span class="label">[658]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_659_659" id="Footnote_659_659"></a><a href="#FNanchor_659_659"><span class="label">[659]</span></a> Rot. Hundr. ii. 757, a: 'Set isti tenentes memorati ut asserunt ad alias
+consuetudines et servitia antiquitus esse consueverunt.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_660_660" id="Footnote_660_660"></a><a href="#FNanchor_660_660"><span class="label">[660]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_661_661" id="Footnote_661_661"></a><a href="#FNanchor_661_661"><span class="label">[661]</span></a> Seebohm, Village Community.</p></div>
+
+<div class="footnote"><p><a name="Footnote_662_662" id="Footnote_662_662"></a><a href="#FNanchor_662_662"><span class="label">[662]</span></a> 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<sup>ti</sup> 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 ... <i>quodcumque opus praeceptum fuerit</i>; 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 <i>nisi ex gratia</i>. Quodcunque <i>aliud genus operis
+facere</i> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_663_663" id="Footnote_663_663"></a><a href="#FNanchor_663_663"><span class="label">[663]</span></a> Glastonbury Inqu. of 1189, p. 41: 'Et herciat semel sine mensura aliqua
+ei assignata cum hoc quod habet in carruca.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_664_664" id="Footnote_664_664"></a><a href="#FNanchor_664_664"><span class="label">[664]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_665_665" id="Footnote_665_665"></a><a href="#FNanchor_665_665"><span class="label">[665]</span></a> 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: '<i>Servi</i>: Dabit ad exennium
+contra Natale 6 panes ... et venit ad prandium domini pro predicto exennio
+sexta manu si voluerit.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_666_666" id="Footnote_666_666"></a><a href="#FNanchor_666_666"><span class="label">[666]</span></a> Cotton MSS., Galba, E. x. f. 19. <a href="#APPENDIX_XIV">See Appendix xiv.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_667_667" id="Footnote_667_667"></a><a href="#FNanchor_667_667"><span class="label">[667]</span></a> Domesday of St. Paul's, Hale's Introduction, pp. xxxviii, xxxix.</p></div>
+
+<div class="footnote"><p><a name="Footnote_668_668" id="Footnote_668_668"></a><a href="#FNanchor_668_668"><span class="label">[668]</span></a> Gesta Abbatum (Rolls Ser.), 74. Cf. Glastonbury Inqu. of 1189, p. 145.</p></div>
+
+<div class="footnote"><p><a name="Footnote_669_669" id="Footnote_669_669"></a><a href="#FNanchor_669_669"><span class="label">[669]</span></a> See, for instance, the beginning of the description of Dorsetshire.</p></div>
+
+<div class="footnote"><p><a name="Footnote_670_670" id="Footnote_670_670"></a><a href="#FNanchor_670_670"><span class="label">[670]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_671_671" id="Footnote_671_671"></a><a href="#FNanchor_671_671"><span class="label">[671]</span></a> See about this point, Hale's Introduction. It is generally very good on
+the subject of the farm.</p></div>
+
+<div class="footnote"><p><a name="Footnote_672_672" id="Footnote_672_672"></a><a href="#FNanchor_672_672"><span class="label">[672]</span></a> Domesday of St. Paul's, 21: 'Potest wainagium fieri cum tribus caruciis
+octo capitum cum consuetudinibus villate.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_673_673" id="Footnote_673_673"></a><a href="#FNanchor_673_673"><span class="label">[673]</span></a> The Templar's Book of 1185 at the Record Office (Q.R. Misc. Books,
+N. 16) is already a rental in substance.</p></div>
+
+<div class="footnote"><p><a name="Footnote_674_674" id="Footnote_674_674"></a><a href="#FNanchor_674_674"><span class="label">[674]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_675_675" id="Footnote_675_675"></a><a href="#FNanchor_675_675"><span class="label">[675]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_676_676" id="Footnote_676_676"></a><a href="#FNanchor_676_676"><span class="label">[676]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_677_677" id="Footnote_677_677"></a><a href="#FNanchor_677_677"><span class="label">[677]</span></a> Custumals of Battle Abbey (Camd. Soc), p. 122.</p></div>
+
+<div class="footnote"><p><a name="Footnote_678_678" id="Footnote_678_678"></a><a href="#FNanchor_678_678"><span class="label">[678]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_679_679" id="Footnote_679_679"></a><a href="#FNanchor_679_679"><span class="label">[679]</span></a> Bracton, iv. 9. 5, f. 263: 'Est autem dominicum quod quis habet ad
+mensam suam et proprie, sicut sunt Bordlands Anglice.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_680_680" id="Footnote_680_680"></a><a href="#FNanchor_680_680"><span class="label">[680]</span></a> Madox, History of the Exchequer, i. 407: 'Concessisse unam virgatam
+terrae in Husfelds, scilicet 20 acras uno anno et 20 acras alio.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_681_681" id="Footnote_681_681"></a><a href="#FNanchor_681_681"><span class="label">[681]</span></a> 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 [<i>sic</i>] et in magno bosco bene vestito quinquies 20 acre et in
+duabus granis Dorile et Langele 16 acras.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_682_682" id="Footnote_682_682"></a><a href="#FNanchor_682_682"><span class="label">[682]</span></a> 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.).</p></div>
+
+<div class="footnote"><p><a name="Footnote_683_683" id="Footnote_683_683"></a><a href="#FNanchor_683_683"><span class="label">[683]</span></a> Harl. MSS. 1006, f. 2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_684_684" id="Footnote_684_684"></a><a href="#FNanchor_684_684"><span class="label">[684]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_685_685" id="Footnote_685_685"></a><a href="#FNanchor_685_685"><span class="label">[685]</span></a> As an instance, Bury St. Edmund's Register, Harl. MSS. 743, f. 194:
+'(Bucham) abbas S<sup>ti</sup> Edmundi capitalis dominus ... tenet in eadem villa
+preter homagium liberorum nihil.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_686_686" id="Footnote_686_686"></a><a href="#FNanchor_686_686"><span class="label">[686]</span></a> Domesday of St. Paul's, 58.</p></div>
+
+<div class="footnote"><p><a name="Footnote_687_687" id="Footnote_687_687"></a><a href="#FNanchor_687_687"><span class="label">[687]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_688_688" id="Footnote_688_688"></a><a href="#FNanchor_688_688"><span class="label">[688]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_689_689" id="Footnote_689_689"></a><a href="#FNanchor_689_689"><span class="label">[689]</span></a> 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<i>d.</i> et pro una
+parva firma panis et cervisiae cum denariis elemosine. Deinceps vero
+singulis annis pro duabus firmis brevibus panis et cervisiae.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_690_690" id="Footnote_690_690"></a><a href="#FNanchor_690_690"><span class="label">[690]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_691_691" id="Footnote_691_691"></a><a href="#FNanchor_691_691"><span class="label">[691]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_692_692" id="Footnote_692_692"></a><a href="#FNanchor_692_692"><span class="label">[692]</span></a> Harl. MSS. 1006, f. 18: 'Debet esse messor ad frumentum et amerciamenta
+domini colligendum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_693_693" id="Footnote_693_693"></a><a href="#FNanchor_693_693"><span class="label">[693]</span></a> Shaftesbury Inqu., Harl. MSS. 61, f. 60: 'Arator ... debet invenire
+omnia instrumenta aratri ante rotas.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_694_694" id="Footnote_694_694"></a><a href="#FNanchor_694_694"><span class="label">[694]</span></a> Ibid., f. 54: 'Bubulci et gadince.' Glastonbury Inqu. of 1189: 'Petras
+bovarius ... custodit boves domini et vadit ad aratrum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_695_695" id="Footnote_695_695"></a><a href="#FNanchor_695_695"><span class="label">[695]</span></a> 'Hereward,' Glastonbury Inqu., 24, 105, etc.; Domesday of St. Paul's,
+53.</p></div>
+
+<div class="footnote"><p><a name="Footnote_696_696" id="Footnote_696_696"></a><a href="#FNanchor_696_696"><span class="label">[696]</span></a> Cartul. of Battle (Camden Ser.), f. 39, b: 'wodeward.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_697_697" id="Footnote_697_697"></a><a href="#FNanchor_697_697"><span class="label">[697]</span></a> Bury St. Edmund's Reg., Cambr. Univ., Gg. iv. 4, f. 322, a: 'Ad istud
+pertinet tenementum falcacio claustri sed cum falce lurardi.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_698_698" id="Footnote_698_698"></a><a href="#FNanchor_698_698"><span class="label">[698]</span></a> Glastonbury Inqu. of 1189, p. 36: 'Reginaldus thernebedellus tenet
+dimidiam virgatam terre et summonet homines ad comitatum et hundredum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_699_699" id="Footnote_699_699"></a><a href="#FNanchor_699_699"><span class="label">[699]</span></a> Ibid., 7; cf. 156.</p></div>
+
+<div class="footnote"><p><a name="Footnote_700_700" id="Footnote_700_700"></a><a href="#FNanchor_700_700"><span class="label">[700]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_701_701" id="Footnote_701_701"></a><a href="#FNanchor_701_701"><span class="label">[701]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_702_702" id="Footnote_702_702"></a><a href="#FNanchor_702_702"><span class="label">[702]</span></a> Bury St. Edmund's Register, Harl. MSS., 743, f. 260: 'Scriptum Johannis
+Northwold abbatis de quinque servanciis' (<span class="smcap">A.D.</span> 1294); f. 260, d:
+'... de minutis officiis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_703_703" id="Footnote_703_703"></a><a href="#FNanchor_703_703"><span class="label">[703]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_704_704" id="Footnote_704_704"></a><a href="#FNanchor_704_704"><span class="label">[704]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_705_705" id="Footnote_705_705"></a><a href="#FNanchor_705_705"><span class="label">[705]</span></a> Glastonbury Inqu. of 1189, 16, 17.</p></div>
+
+<div class="footnote"><p><a name="Footnote_706_706" id="Footnote_706_706"></a><a href="#FNanchor_706_706"><span class="label">[706]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_707_707" id="Footnote_707_707"></a><a href="#FNanchor_707_707"><span class="label">[707]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_708_708" id="Footnote_708_708"></a><a href="#FNanchor_708_708"><span class="label">[708]</span></a> Glastonbury Inqu. of 1189, p. 3. Cf. 16: 'Vinitor habet talem liberacionem
+sicut prepositus grangie.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_709_709" id="Footnote_709_709"></a><a href="#FNanchor_709_709"><span class="label">[709]</span></a> 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<sup>to</sup>.
+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<sup>ti</sup> Petri exceptis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_710_710" id="Footnote_710_710"></a><a href="#FNanchor_710_710"><span class="label">[710]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_711_711" id="Footnote_711_711"></a><a href="#FNanchor_711_711"><span class="label">[711]</span></a> 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<sup>ti</sup> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_712_712" id="Footnote_712_712"></a><a href="#FNanchor_712_712"><span class="label">[712]</span></a> Glastonbury Inqu. of 1189, p. 13.</p></div>
+
+<div class="footnote"><p><a name="Footnote_713_713" id="Footnote_713_713"></a><a href="#FNanchor_713_713"><span class="label">[713]</span></a> Glastonbury Cart., Wood MSS., 1, f. 125: 'Carta Murielle Pasturel facta
+Galfrido Abbati Glastoniensi de tenementis et redditibus pertinentibus (ad)
+servanciam de la lauandrie.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_714_714" id="Footnote_714_714"></a><a href="#FNanchor_714_714"><span class="label">[714]</span></a> 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 (<span class="smcap">A.D.</span> 1294).'</p></div>
+
+<div class="footnote"><p><a name="Footnote_715_715" id="Footnote_715_715"></a><a href="#FNanchor_715_715"><span class="label">[715]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_716_716" id="Footnote_716_716"></a><a href="#FNanchor_716_716"><span class="label">[716]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_717_717" id="Footnote_717_717"></a><a href="#FNanchor_717_717"><span class="label">[717]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_718_718" id="Footnote_718_718"></a><a href="#FNanchor_718_718"><span class="label">[718]</span></a> Ibid. 39: 'unam acram pro 4 d. ad emendacionem terre sue.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_719_719" id="Footnote_719_719"></a><a href="#FNanchor_719_719"><span class="label">[719]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_720_720" id="Footnote_720_720"></a><a href="#FNanchor_720_720"><span class="label">[720]</span></a> Domesday of St. Paul's, p. 118: 'Anno domini 1240 Hugone de S<sup>to</sup>
+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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_721_721" id="Footnote_721_721"></a><a href="#FNanchor_721_721"><span class="label">[721]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_722_722" id="Footnote_722_722"></a><a href="#FNanchor_722_722"><span class="label">[722]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_723_723" id="Footnote_723_723"></a><a href="#FNanchor_723_723"><span class="label">[723]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_724_724" id="Footnote_724_724"></a><a href="#FNanchor_724_724"><span class="label">[724]</span></a> Bracton, f. 220. See F.W. Maitland in the Harvard Law Review, iii.
+173.</p></div>
+
+<div class="footnote"><p><a name="Footnote_725_725" id="Footnote_725_725"></a><a href="#FNanchor_725_725"><span class="label">[725]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_726_726" id="Footnote_726_726"></a><a href="#FNanchor_726_726"><span class="label">[726]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_727_727" id="Footnote_727_727"></a><a href="#FNanchor_727_727"><span class="label">[727]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_728_728" id="Footnote_728_728"></a><a href="#FNanchor_728_728"><span class="label">[728]</span></a> Domesday of St. Paul's, 25: 'Robertus filius Roger filii mercatoris unam
+acram et dimidiam pro 6 d. Item paruum augmentum pro 1 d.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_729_729" id="Footnote_729_729"></a><a href="#FNanchor_729_729"><span class="label">[729]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_730_730" id="Footnote_730_730"></a><a href="#FNanchor_730_730"><span class="label">[730]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_731_731" id="Footnote_731_731"></a><a href="#FNanchor_731_731"><span class="label">[731]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_732_732" id="Footnote_732_732"></a><a href="#FNanchor_732_732"><span class="label">[732]</span></a> Worc. Cart., 13: 'Idem tenet assartum pro medietate fructus et Prior
+invenit medietatem seminis.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_733_733" id="Footnote_733_733"></a><a href="#FNanchor_733_733"><span class="label">[733]</span></a> 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&mdash;all indications that the clearing was made according to a general
+plan and by the whole village.</p></div>
+
+<div class="footnote"><p><a name="Footnote_734_734" id="Footnote_734_734"></a><a href="#FNanchor_734_734"><span class="label">[734]</span></a> Worcester Cart., 47, 48: 'de soccagiis et forlandis villanorum.' Cf. 49.</p></div>
+
+<div class="footnote"><p><a name="Footnote_735_735" id="Footnote_735_735"></a><a href="#FNanchor_735_735"><span class="label">[735]</span></a> A curious species of land tenure is the so-called <i>rofliesland</i> (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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_736_736" id="Footnote_736_736"></a><a href="#FNanchor_736_736"><span class="label">[736]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_737_737" id="Footnote_737_737"></a><a href="#FNanchor_737_737"><span class="label">[737]</span></a> Rot. Hundr. ii. 656.</p></div>
+
+<div class="footnote"><p><a name="Footnote_738_738" id="Footnote_738_738"></a><a href="#FNanchor_738_738"><span class="label">[738]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_739_739" id="Footnote_739_739"></a><a href="#FNanchor_739_739"><span class="label">[739]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_740_740" id="Footnote_740_740"></a><a href="#FNanchor_740_740"><span class="label">[740]</span></a> The Ramsey Cartulary has simply: 'Et virgatarius arabit et herciabit
+qualibet septimana per unum diem sicut operarius.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_741_741" id="Footnote_741_741"></a><a href="#FNanchor_741_741"><span class="label">[741]</span></a> Rot. Hundr. ii. 348.</p></div>
+
+<div class="footnote"><p><a name="Footnote_742_742" id="Footnote_742_742"></a><a href="#FNanchor_742_742"><span class="label">[742]</span></a> Ib. 443, 444. Isabel, the daughter of William le Frend, is taken as a
+typical half-virgater.</p></div>
+
+<div class="footnote"><p><a name="Footnote_743_743" id="Footnote_743_743"></a><a href="#FNanchor_743_743"><span class="label">[743]</span></a> Rot. Hundr. ii. 326.</p></div>
+
+<div class="footnote"><p><a name="Footnote_744_744" id="Footnote_744_744"></a><a href="#FNanchor_744_744"><span class="label">[744]</span></a> Ib. ii. 327.</p></div>
+
+<div class="footnote"><p><a name="Footnote_745_745" id="Footnote_745_745"></a><a href="#FNanchor_745_745"><span class="label">[745]</span></a> Ib. ii. 436.</p></div>
+
+<div class="footnote"><p><a name="Footnote_746_746" id="Footnote_746_746"></a><a href="#FNanchor_746_746"><span class="label">[746]</span></a> Ib ii. 438.</p></div>
+
+<div class="footnote"><p><a name="Footnote_747_747" id="Footnote_747_747"></a><a href="#FNanchor_747_747"><span class="label">[747]</span></a> Ib. ii. 473.</p></div>
+
+<div class="footnote"><p><a name="Footnote_748_748" id="Footnote_748_748"></a><a href="#FNanchor_748_748"><span class="label">[748]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_749_749" id="Footnote_749_749"></a><a href="#FNanchor_749_749"><span class="label">[749]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_750_750" id="Footnote_750_750"></a><a href="#FNanchor_750_750"><span class="label">[750]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_751_751" id="Footnote_751_751"></a><a href="#FNanchor_751_751"><span class="label">[751]</span></a> Rot. Hundr. ii. 542.</p></div>
+
+<div class="footnote"><p><a name="Footnote_752_752" id="Footnote_752_752"></a><a href="#FNanchor_752_752"><span class="label">[752]</span></a> Ib. 348.</p></div>
+
+<div class="footnote"><p><a name="Footnote_753_753" id="Footnote_753_753"></a><a href="#FNanchor_753_753"><span class="label">[753]</span></a> Ib. 508.</p></div>
+
+<div class="footnote"><p><a name="Footnote_754_754" id="Footnote_754_754"></a><a href="#FNanchor_754_754"><span class="label">[754]</span></a> Exch. Q.R. Misc. Books, N 29, f. 11 a.</p></div>
+
+<div class="footnote"><p><a name="Footnote_755_755" id="Footnote_755_755"></a><a href="#FNanchor_755_755"><span class="label">[755]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_756_756" id="Footnote_756_756"></a><a href="#FNanchor_756_756"><span class="label">[756]</span></a> 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 <i>liber tenentes</i> as <i>malmanni</i>. The expression was probably
+in use for all rent-paying people, although properly a designation of those
+who had commuted their services. <a href="#APPENDIX_XV">See Appendix XV.</a></p></div>
+
+<div class="footnote"><p><a name="Footnote_757_757" id="Footnote_757_757"></a><a href="#FNanchor_757_757"><span class="label">[757]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_758_758" id="Footnote_758_758"></a><a href="#FNanchor_758_758"><span class="label">[758]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_759_759" id="Footnote_759_759"></a><a href="#FNanchor_759_759"><span class="label">[759]</span></a> See e.g. Ramsey Cartul. i. 138, 142.</p></div>
+
+<div class="footnote"><p><a name="Footnote_760_760" id="Footnote_760_760"></a><a href="#FNanchor_760_760"><span class="label">[760]</span></a> R.H. ii. 402, 403.</p></div>
+
+<div class="footnote"><p><a name="Footnote_761_761" id="Footnote_761_761"></a><a href="#FNanchor_761_761"><span class="label">[761]</span></a> R.H. ii. 466. Cf. 609.</p></div>
+
+<div class="footnote"><p><a name="Footnote_762_762" id="Footnote_762_762"></a><a href="#FNanchor_762_762"><span class="label">[762]</span></a> R.H. ii. 502.</p></div>
+
+<div class="footnote"><p><a name="Footnote_763_763" id="Footnote_763_763"></a><a href="#FNanchor_763_763"><span class="label">[763]</span></a> R.H. ii. 484, 485.</p></div>
+
+<div class="footnote"><p><a name="Footnote_764_764" id="Footnote_764_764"></a><a href="#FNanchor_764_764"><span class="label">[764]</span></a> R.H. 469, 470, 475.</p></div>
+
+<div class="footnote"><p><a name="Footnote_765_765" id="Footnote_765_765"></a><a href="#FNanchor_765_765"><span class="label">[765]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_766_766" id="Footnote_766_766"></a><a href="#FNanchor_766_766"><span class="label">[766]</span></a> Seld. Soc. ii. 22: 'Et dicit curia quod tenementum et una acra servilis
+condicionis sunt et una acra libere.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_767_767" id="Footnote_767_767"></a><a href="#FNanchor_767_767"><span class="label">[767]</span></a> Coram Rege, Pascha 9 Edw. I, 34, 6: 'Messarius abbatis et messarius
+villate.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_768_768" id="Footnote_768_768"></a><a href="#FNanchor_768_768"><span class="label">[768]</span></a> Okeburn Inqu. 56 (Add. MSS. 24316): 'Eligere debent unum messarium
+de se ipsis et domini de ipso electo poterunt facere prepositum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_769_769" id="Footnote_769_769"></a><a href="#FNanchor_769_769"><span class="label">[769]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_770_770" id="Footnote_770_770"></a><a href="#FNanchor_770_770"><span class="label">[770]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_771_771" id="Footnote_771_771"></a><a href="#FNanchor_771_771"><span class="label">[771]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_772_772" id="Footnote_772_772"></a><a href="#FNanchor_772_772"><span class="label">[772]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_773_773" id="Footnote_773_773"></a><a href="#FNanchor_773_773"><span class="label">[773]</span></a> Glastonbury Cart., Wood MSS. i. f. 111: 'Si nul soit enfraunchi de ses
+ouvrages dont la ville est le plus charge.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_774_774" id="Footnote_774_774"></a><a href="#FNanchor_774_774"><span class="label">[774]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_775_775" id="Footnote_775_775"></a><a href="#FNanchor_775_775"><span class="label">[775]</span></a> Custumal of Bleadon, 257: 'Invenit fabrum pro ferdello domino et toti
+villae.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_776_776" id="Footnote_776_776"></a><a href="#FNanchor_776_776"><span class="label">[776]</span></a> Shaftesbury Cart., Harl. MSS. 61, f. 63: 'Ibit ad scotaliam domine sicut
+ad scotaliam vicinorum.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_777_777" id="Footnote_777_777"></a><a href="#FNanchor_777_777"><span class="label">[777]</span></a> Ramsey Cart. i. 425: 'Ponitur in respectu quousque videatur quomodo
+se gerat versus dominum abbatem et suos vicinos.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_778_778" id="Footnote_778_778"></a><a href="#FNanchor_778_778"><span class="label">[778]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_779_779" id="Footnote_779_779"></a><a href="#FNanchor_779_779"><span class="label">[779]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_780_780" id="Footnote_780_780"></a><a href="#FNanchor_780_780"><span class="label">[780]</span></a> 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<i>s.</i> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_781_781" id="Footnote_781_781"></a><a href="#FNanchor_781_781"><span class="label">[781]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_782_782" id="Footnote_782_782"></a><a href="#FNanchor_782_782"><span class="label">[782]</span></a> Cf. Prof. Maitland's Introduction to the rolls of the Abbey of Ramsey.
+Seld. Soc. ii. 87.</p></div>
+
+<div class="footnote"><p><a name="Footnote_783_783" id="Footnote_783_783"></a><a href="#FNanchor_783_783"><span class="label">[783]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_784_784" id="Footnote_784_784"></a><a href="#FNanchor_784_784"><span class="label">[784]</span></a> Introduction to Seld. Soc. ii. p. xvi.</p></div>
+
+<div class="footnote"><p><a name="Footnote_785_785" id="Footnote_785_785"></a><a href="#FNanchor_785_785"><span class="label">[785]</span></a> Add. MSS. 6159, f. 54, a: 'Visus de borchtruning.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_786_786" id="Footnote_786_786"></a><a href="#FNanchor_786_786"><span class="label">[786]</span></a> Gloucester Cart. iii. 221; Malmesbury Cart. ii. 17. Cf. Kovalevsky,
+'History of police administration in England' (Russian), 137.</p></div>
+
+<div class="footnote"><p><a name="Footnote_787_787" id="Footnote_787_787"></a><a href="#FNanchor_787_787"><span class="label">[787]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_788_788" id="Footnote_788_788"></a><a href="#FNanchor_788_788"><span class="label">[788]</span></a> Rot. Hundr. ii. 461, b: 'Et predicti Radulfus et Robertus habent suas
+duodenas.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_789_789" id="Footnote_789_789"></a><a href="#FNanchor_789_789"><span class="label">[789]</span></a> Y.B. 21-22 Edw. I, 399: 'Presence a vewe de franc pledge demande
+par la reson de la persone, non de la tenure.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_790_790" id="Footnote_790_790"></a><a href="#FNanchor_790_790"><span class="label">[790]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_791_791" id="Footnote_791_791"></a><a href="#FNanchor_791_791"><span class="label">[791]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_792_792" id="Footnote_792_792"></a><a href="#FNanchor_792_792"><span class="label">[792]</span></a> Introduction to Seld. Soc. ii. p. xviii.</p></div>
+
+<div class="footnote"><p><a name="Footnote_793_793" id="Footnote_793_793"></a><a href="#FNanchor_793_793"><span class="label">[793]</span></a> Seld. Soc. ii. p. lxx.</p></div>
+
+<div class="footnote"><p><a name="Footnote_794_794" id="Footnote_794_794"></a><a href="#FNanchor_794_794"><span class="label">[794]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_795_795" id="Footnote_795_795"></a><a href="#FNanchor_795_795"><span class="label">[795]</span></a> Eynsham Inqu., Christ Church MSS. 15, a: 'Curia debet ibi teneri si
+dominus voluerit.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_796_796" id="Footnote_796_796"></a><a href="#FNanchor_796_796"><span class="label">[796]</span></a> Seld. Soc. ii. 49, etc.</p></div>
+
+<div class="footnote"><p><a name="Footnote_797_797" id="Footnote_797_797"></a><a href="#FNanchor_797_797"><span class="label">[797]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_798_798" id="Footnote_798_798"></a><a href="#FNanchor_798_798"><span class="label">[798]</span></a> Rot. Hundr. ii. 710, a; Ramsey Cart. i. 491.</p></div>
+
+<div class="footnote"><p><a name="Footnote_799_799" id="Footnote_799_799"></a><a href="#FNanchor_799_799"><span class="label">[799]</span></a> Warwick Hundred Roll, Exch. Q.R. Misc. Books, 29, p. 10: 'Quidam
+de tenentibus dicunt quod nunquam fecerunt sectam.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_800_800" id="Footnote_800_800"></a><a href="#FNanchor_800_800"><span class="label">[800]</span></a> Gloucester Cart. iii. 208.</p></div>
+
+<div class="footnote"><p><a name="Footnote_801_801" id="Footnote_801_801"></a><a href="#FNanchor_801_801"><span class="label">[801]</span></a> Chapter-house Box 152, No. 14: 'Hereditas de qua una secta debetur.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_802_802" id="Footnote_802_802"></a><a href="#FNanchor_802_802"><span class="label">[802]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_803_803" id="Footnote_803_803"></a><a href="#FNanchor_803_803"><span class="label">[803]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_804_804" id="Footnote_804_804"></a><a href="#FNanchor_804_804"><span class="label">[804]</span></a> Selden Soc. ii. p. 67.</p></div>
+
+<div class="footnote"><p><a name="Footnote_805_805" id="Footnote_805_805"></a><a href="#FNanchor_805_805"><span class="label">[805]</span></a> Introduction to Seld. Soc. vol. ii. p. 76.</p></div>
+
+<div class="footnote"><p><a name="Footnote_806_806" id="Footnote_806_806"></a><a href="#FNanchor_806_806"><span class="label">[806]</span></a> The Durham halimot books (Surtees Society) supply some instances.</p></div>
+
+<div class="footnote"><p><a name="Footnote_807_807" id="Footnote_807_807"></a><a href="#FNanchor_807_807"><span class="label">[807]</span></a> Glastonbury Inqu. of 1189, p. 33: 'De dono 73 solidos sicut homines
+ville illud statuunt.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_808_808" id="Footnote_808_808"></a><a href="#FNanchor_808_808"><span class="label">[808]</span></a> Selden Soc. ii. 36, 168.</p></div>
+
+<div class="footnote"><p><a name="Footnote_809_809" id="Footnote_809_809"></a><a href="#FNanchor_809_809"><span class="label">[809]</span></a> Selden Society, vol. ii. 6, 7, 8.</p></div>
+
+<div class="footnote"><p><a name="Footnote_810_810" id="Footnote_810_810"></a><a href="#FNanchor_810_810"><span class="label">[810]</span></a> Ibid. 31: 'Johannes Smert ... Henricus Coterel maritavit se sine
+licencia domini, ideo distringantur ad faciendum voluntatem domini.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_811_811" id="Footnote_811_811"></a><a href="#FNanchor_811_811"><span class="label">[811]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_812_812" id="Footnote_812_812"></a><a href="#FNanchor_812_812"><span class="label">[812]</span></a> Introduction to Seld. Soc. ii. p. lxv.</p></div>
+
+<div class="footnote"><p><a name="Footnote_813_813" id="Footnote_813_813"></a><a href="#FNanchor_813_813"><span class="label">[813]</span></a> Ibid. pp. 163, 166.</p></div>
+
+<div class="footnote"><p><a name="Footnote_814_814" id="Footnote_814_814"></a><a href="#FNanchor_814_814"><span class="label">[814]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_815_815" id="Footnote_815_815"></a><a href="#FNanchor_815_815"><span class="label">[815]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_816_816" id="Footnote_816_816"></a><a href="#FNanchor_816_816"><span class="label">[816]</span></a> See Pollock, Land-laws, 199, 208 (2nd ed.).</p></div>
+
+<div class="footnote"><p><a name="Footnote_817_817" id="Footnote_817_817"></a><a href="#FNanchor_817_817"><span class="label">[817]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_818_818" id="Footnote_818_818"></a><a href="#FNanchor_818_818"><span class="label">[818]</span></a> These points have been conclusively settled by the masterly investigations
+of Brunner, Zeugen- und Inquisitions-beweis (Abhandlungen der Wiener
+Akademie) and Entstehung der Schwurgerichte.</p></div>
+
+<div class="footnote"><p><a name="Footnote_819_819" id="Footnote_819_819"></a><a href="#FNanchor_819_819"><span class="label">[819]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_820_820" id="Footnote_820_820"></a><a href="#FNanchor_820_820"><span class="label">[820]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_821_821" id="Footnote_821_821"></a><a href="#FNanchor_821_821"><span class="label">[821]</span></a> Seld. Soc. ii. 41: 'Et 12 juratores curie ... dicunt super sacramentum
+suum quod predicta Agnes venit in <i>plena curia</i> 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 <i>nisi fuerit in plena curia</i> una cum
+marito suo de huiusmodi <i>perquisito conjunctim seisita</i>.' Cf. p. 40: 'Unde
+Willelmus pro <i>premissis in plena curia recordatis et inrotulatis</i> dat domino
+10 solidos.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_822_822" id="Footnote_822_822"></a><a href="#FNanchor_822_822"><span class="label">[822]</span></a> 4 Inst. 270, cap. 58.</p></div>
+
+<div class="footnote"><p><a name="Footnote_823_823" id="Footnote_823_823"></a><a href="#FNanchor_823_823"><span class="label">[823]</span></a> 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 ... <i>Stonore</i>: 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. <i>Trew</i>: 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_824_824" id="Footnote_824_824"></a><a href="#FNanchor_824_824"><span class="label">[824]</span></a> Y.B. 11/12 Edw. III (Rolls Ser.), p. 517: '<i>Trew.</i> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_825_825" id="Footnote_825_825"></a><a href="#FNanchor_825_825"><span class="label">[825]</span></a> 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 <i>noluerunt consentire judicio</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_826_826" id="Footnote_826_826"></a><a href="#FNanchor_826_826"><span class="label">[826]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_827_827" id="Footnote_827_827"></a><a href="#FNanchor_827_827"><span class="label">[827]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_828_828" id="Footnote_828_828"></a><a href="#FNanchor_828_828"><span class="label">[828]</span></a> 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<i>d.</i>' (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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_829_829" id="Footnote_829_829"></a><a href="#FNanchor_829_829"><span class="label">[829]</span></a> Seld. Soc. ii. 112.</p></div>
+
+<div class="footnote"><p><a name="Footnote_830_830" id="Footnote_830_830"></a><a href="#FNanchor_830_830"><span class="label">[830]</span></a> 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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_831_831" id="Footnote_831_831"></a><a href="#FNanchor_831_831"><span class="label">[831]</span></a> Seld. Soc. ii. 111.</p></div>
+
+<div class="footnote"><p><a name="Footnote_832_832" id="Footnote_832_832"></a><a href="#FNanchor_832_832"><span class="label">[832]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_833_833" id="Footnote_833_833"></a><a href="#FNanchor_833_833"><span class="label">[833]</span></a> Selden Soc. ii. 127.</p></div>
+
+<div class="footnote"><p><a name="Footnote_834_834" id="Footnote_834_834"></a><a href="#FNanchor_834_834"><span class="label">[834]</span></a> Selden Soc. ii. 173.</p></div>
+
+<div class="footnote"><p><a name="Footnote_835_835" id="Footnote_835_835"></a><a href="#FNanchor_835_835"><span class="label">[835]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_836_836" id="Footnote_836_836"></a><a href="#FNanchor_836_836"><span class="label">[836]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_837_837" id="Footnote_837_837"></a><a href="#FNanchor_837_837"><span class="label">[837]</span></a> Seld. Soc. ii. 44.</p></div>
+
+<div class="footnote"><p><a name="Footnote_838_838" id="Footnote_838_838"></a><a href="#FNanchor_838_838"><span class="label">[838]</span></a> Introduction to Seld. Soc. ii. p. lxx.</p></div>
+
+<div class="footnote"><p><a name="Footnote_839_839" id="Footnote_839_839"></a><a href="#FNanchor_839_839"><span class="label">[839]</span></a> Seld. Soc. ii. 67.</p></div>
+
+<div class="footnote"><p><a name="Footnote_840_840" id="Footnote_840_840"></a><a href="#FNanchor_840_840"><span class="label">[840]</span></a> Ibid. 164.</p></div>
+
+<div class="footnote"><p><a name="Footnote_841_841" id="Footnote_841_841"></a><a href="#FNanchor_841_841"><span class="label">[841]</span></a> See as to all this Mr. Maitland's Introduction to the Selden volume (ii),
+pp. lxix, lxx.</p></div>
+
+<div class="footnote"><p><a name="Footnote_842_842" id="Footnote_842_842"></a><a href="#FNanchor_842_842"><span class="label">[842]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_843_843" id="Footnote_843_843"></a><a href="#FNanchor_843_843"><span class="label">[843]</span></a> Y.B. 21-22 Edw. I, 526 (Rolls Series).</p></div>
+
+<div class="footnote"><p><a name="Footnote_844_844" id="Footnote_844_844"></a><a href="#FNanchor_844_844"><span class="label">[844]</span></a> Comp. Mr. Maitland in his often-quoted Introduction, p. lxxi.</p></div>
+
+<div class="footnote"><p><a name="Footnote_845_845" id="Footnote_845_845"></a><a href="#FNanchor_845_845"><span class="label">[845]</span></a> Introduction to Seld. Soc. ii. p. lxvi.</p></div>
+
+<div class="footnote"><p><a name="Footnote_846_846" id="Footnote_846_846"></a><a href="#FNanchor_846_846"><span class="label">[846]</span></a> Archaeologia, vol. 47, p. 27, and following.</p></div>
+
+<div class="footnote"><p><a name="Footnote_847_847" id="Footnote_847_847"></a><a href="#FNanchor_847_847"><span class="label">[847]</span></a> Rot. Hundr., Cartulary of Ramsey, i.</p></div>
+
+<div class="footnote"><p><a name="Footnote_848_848" id="Footnote_848_848"></a><a href="#FNanchor_848_848"><span class="label">[848]</span></a> Gomme, Village Community, 162, etc.</p></div>
+
+<div class="footnote"><p><a name="Footnote_849_849" id="Footnote_849_849"></a><a href="#FNanchor_849_849"><span class="label">[849]</span></a> Cart. of Malmesbury (Rolls Ser.), ii. 221.</p></div>
+
+<div class="footnote"><p><a name="Footnote_850_850" id="Footnote_850_850"></a><a href="#FNanchor_850_850"><span class="label">[850]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_851_851" id="Footnote_851_851"></a><a href="#FNanchor_851_851"><span class="label">[851]</span></a> Seld. Soc. ii. 68, 90.</p></div>
+
+<div class="footnote"><p><a name="Footnote_852_852" id="Footnote_852_852"></a><a href="#FNanchor_852_852"><span class="label">[852]</span></a> Ibid. 162, 166.</p></div>
+
+<div class="footnote"><p><a name="Footnote_853_853" id="Footnote_853_853"></a><a href="#FNanchor_853_853"><span class="label">[853]</span></a> Introd. to Seld. Soc. ii. p. xxxix.</p></div>
+
+<div class="footnote"><p><a name="Footnote_854_854" id="Footnote_854_854"></a><a href="#FNanchor_854_854"><span class="label">[854]</span></a> '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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_855_855" id="Footnote_855_855"></a><a href="#FNanchor_855_855"><span class="label">[855]</span></a> P. 168.</p></div>
+
+<div class="footnote"><p><a name="Footnote_856_856" id="Footnote_856_856"></a><a href="#FNanchor_856_856"><span class="label">[856]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_857_857" id="Footnote_857_857"></a><a href="#FNanchor_857_857"><span class="label">[857]</span></a> P. 167: 'ou si son seignior luy eject de son fief, et luy done sustenance
+(<i>corr.</i> 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 <i>my serf forsque tant come il est en gard</i>, et de sicome
+nul ne poet challenger son serf pur serf tout soit il en sa garde s'il
+retrouve (<i>corr.</i> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_858_858" id="Footnote_858_858"></a><a href="#FNanchor_858_858"><span class="label">[858]</span></a> Cf. p. 155.</p></div>
+
+<div class="footnote"><p><a name="Footnote_859_859" id="Footnote_859_859"></a><a href="#FNanchor_859_859"><span class="label">[859]</span></a> P. 166.</p></div>
+
+<div class="footnote"><p><a name="Footnote_860_860" id="Footnote_860_860"></a><a href="#FNanchor_860_860"><span class="label">[860]</span></a> P. 294.</p></div>
+
+<div class="footnote"><p><a name="Footnote_861_861" id="Footnote_861_861"></a><a href="#FNanchor_861_861"><span class="label">[861]</span></a> Ib. p. 294. 'Abusion est que serfs sont frank pledges ou pledges de frank
+home.' Cf. 110.</p></div>
+
+<div class="footnote"><p><a name="Footnote_862_862" id="Footnote_862_862"></a><a href="#FNanchor_862_862"><span class="label">[862]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_863_863" id="Footnote_863_863"></a><a href="#FNanchor_863_863"><span class="label">[863]</span></a> P. 291: 'Abusion est que lon dit que villenage neste my frank tenement ... car
+villein et serf ne sont my en (<i>corr.</i> un) voice, ne en (<i>corr.</i> un)
+signification, eins poet chascun frank home tenir villenage a luy et a ses
+heires fesant le servage et le charge del fiew.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_864_864" id="Footnote_864_864"></a><a href="#FNanchor_864_864"><span class="label">[864]</span></a> 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 <i>ne eient point de chartres, ne monuments</i> sils soient
+nequident engettes ou disturbes de lour possessions a tort, <i>droit les succort
+per l'assize de novel disseisine</i> attenir en le state come devant per cy que
+ils puissent <i>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</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_865_865" id="Footnote_865_865"></a><a href="#FNanchor_865_865"><span class="label">[865]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_866_866" id="Footnote_866_866"></a><a href="#FNanchor_866_866"><span class="label">[866]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_867_867" id="Footnote_867_867"></a><a href="#FNanchor_867_867"><span class="label">[867]</span></a> 171: 'Et de <i>ceo soy entremist Seint Edward</i> 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 <i>par tortious distresses chasses
+a faire a lour seignours le service de Rechat de sank</i>, et plusors autre
+customes voluntaries pur mener les en servage a lour poiar, dont <i>lour
+remedie per le ne injuste vexes per les negligence des Royes</i>' (the end of the
+sentence is evidently omitted or 'is falling into disuse' must have been
+meant).&mdash;p. 305: '<i>abusion est que le briefe de ne injuste vexes va issint en
+decline</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_868_868" id="Footnote_868_868"></a><a href="#FNanchor_868_868"><span class="label">[868]</span></a> It ought to be mentioned that the hundreds to which suit is due belonged
+to the Church of Ely.</p></div>
+
+<div class="footnote"><p><a name="Footnote_869_869" id="Footnote_869_869"></a><a href="#FNanchor_869_869"><span class="label">[869]</span></a> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_870_870" id="Footnote_870_870"></a><a href="#FNanchor_870_870"><span class="label">[870]</span></a> R.H. ii. 597. Cf. 469, 470.</p></div>
+
+<div class="footnote"><p><a name="Footnote_871_871" id="Footnote_871_871"></a><a href="#FNanchor_871_871"><span class="label">[871]</span></a> Exch. Q.R. Misc. Books A. 29, f. 64, b: 'Nota&mdash;predictus Ricardus (de
+Loges) dicit se <i>non habere Warentum aliquem nisi per antiquam tenuram
+sine carta</i>.... 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 <i>de hereditate per defensum antecessorum suorum qui dictam
+dimidiam virgatam terrae habuerunt de dono Regis cujus nomen ignoramus</i>.'
+Thomas Wyteman tenet in eadem I virgatam terrae de Philippo de Lenettale,
+<i>et est de confirmacione Regis, ut dicta dimidia virgata terrae prescripta</i>.
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_872_872" id="Footnote_872_872"></a><a href="#FNanchor_872_872"><span class="label">[872]</span></a> R.H. ii. 477, 478. '<i>Libere tenentes.</i> 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.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_873_873" id="Footnote_873_873"></a><a href="#FNanchor_873_873"><span class="label">[873]</span></a> Rot. Hundr. ii. 656, 660. Cf. as to the meaning of antiqua tenura, etc.
+Rot. Hundr. i. 79, 354.</p></div>
+
+<div class="footnote"><p><a name="Footnote_874_874" id="Footnote_874_874"></a><a href="#FNanchor_874_874"><span class="label">[874]</span></a> 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 <i>per fidelitatem et nullum faciunt
+homagium</i>.'</p></div>
+
+<div class="footnote"><p><a name="Footnote_875_875" id="Footnote_875_875"></a><a href="#FNanchor_875_875"><span class="label">[875]</span></a> Bracton, f. 33 b. Madox, Formulare Anglicanum.</p></div>
+
+<div class="footnote"><p><a name="Footnote_876_876" id="Footnote_876_876"></a><a href="#FNanchor_876_876"><span class="label">[876]</span></a> 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).</p></div>
+
+<div class="footnote"><p><a name="Footnote_877_877" id="Footnote_877_877"></a><a href="#FNanchor_877_877"><span class="label">[877]</span></a> 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 <i>quia curia tenens acceptatur</i> 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 <i>sine
+licencia curie</i>.' 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 <i>rotulos ad Warantum</i>. 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_878_878" id="Footnote_878_878"></a><a href="#FNanchor_878_878"><span class="label">[878]</span></a> Rot. Hundr. i. p. 104: 'Sokemanni <i>domini Regis de Soka de</i> 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.</p></div>
+
+</div>
+
+<div class="transnote">
+<p>Transcriber's Notes:</p>
+<p>Page 199. n 1. [413] 'See Appendix x' changed to 'See Appendix xii'.</p>
+</div>
+
+
+
+
+
+
+
+
+<pre>
+
+
+
+
+
+End of Project Gutenberg's Villainage in England, by Paul Vinogradoff
+
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+The Project Gutenberg EBook of Villainage in England, by Paul Vinogradoff
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Villainage in England
+       Essays in English Mediaeval History
+
+Author: Paul Vinogradoff
+
+Release Date: February 14, 2012 [EBook #38876]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK VILLAINAGE IN ENGLAND ***
+
+
+
+
+Produced by David Clarke, Rory OConor and the Online
+Distributed Proofreading Team at https://www.pgdp.net (This
+file was produced from images generously made available
+by The Internet Archive/Canadian Libraries)
+
+
+
+
+
+
+
+
+
+  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 Regime, 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 Lezardiere, 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. Guerard[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.
+Loebell[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 'Buergers,' 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 Gesieth. 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
+Gesiethcundman, 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 Gesieths (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 Caesar 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--_gebur_--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
+_gebur_ 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 _gebur_. 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 _banalites_ 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 versa_,
+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 {hestiopamon} 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 'Traeger' 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 _especialte_ 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 especialte,' while Hengham, J. says: 'prescription de terre est
+assez bon especialte"' (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 _mal_ 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 _mal_[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
+_mal_ 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'etat_ 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 _hotes_ (_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'etre_
+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 gemots 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 archaeology, 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 six[thorn]epany 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.
+
+Sec. Tenentes Abbatis  { Sec. Robertus le Caus tenet in eadem j. mesuagium et
+  in eadem.         {   ij. virgatas terrae de Abbate de Eygn', et reddit
+                    {   per annum dicto Abbati Eygn' iij._s._
+Sec. Hundr' in         { Sec. Stephanus le Niwe tenet in eadem j. mesuagium
+  Aston'.           {   et ij. virgatas terrae de eodem, et reddit per
+                    {   annum dicto Abbati xv._s._ vij._d._ ob. q.
+                    { Sec. Robertus de Haddon' tenet in eadem j. mesuagium
+                    {   [et] j virgatam terrae de Domino W. de Valencia,
+                    {   et reddit per annum dicto W. de Valencia j._d._
+  Sec. Servi.          { Sec. Henricus Toni tenet in eadem j. mesuagium [et]
+                    {   j. virgatam terrae de Abbate de Eygn', et reddit
+                    {   eidem pro redditu iiij._s._ pro opere iiij._s._
+                    {   iiij._d._ ob. q.
+                    { Sec. Willelmus Toni tenet in eadem j. mesuagium [et]
+                    {   j. virgatam terrae de dicto Abbate, et reddit per
+                    {   annum eidem pro redditu iiij._s._, pro opere
+                    {   iiij._s._ ix._d._ ob. q.
+                    { Sec. Nicholaus Toni tenet in eadem consimile
+                    {   tenementum de eodem pro consimili servicio
+                    {   faciendo eidem.
+                    { Sec. Emma Lovel tenet in eadem j. mesuagium et
+                    {   dimidiam virgatam terrae cum v. acras de eodem,
+                    {   et reddit per annum dicto Abbati xj._s._ iij._d._
+
+                    { Sec. Johanna Galard tenet in eadem dimidiam virgatam
+                    {   terrae de dono Willelmi fratris sui, et reddit
+                    {   eidem per annum vj._d._; et idem Willelmus tenet
+                    {   de hereditate per defensum antecessorum suorum,
+Sec. Lib[ere]          {   qui dictam dimidiam virgatam terrae habuerunt
+  tenentes.         {   de dono Reg[is], cujus nomen ignoramus.
+                    { Sec. Thomas Wyteman tenet in eadem j. virgatam terrae
+                    {   de Philippo de Lenethale, et est de confirmatione
+                    {   Reg[is], ut dicta dimidia virgata terrae
+                    {   praescripta; et tenetur de Willelmo Gallard
+                    {   praedicto, 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.
+
+Sec. 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 Considerations 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 Unerhoertes 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 conquete de l'Angleterre par les Normands.
+
+[13] Histoire du tiers etat.
+
+[14] Histoire du droit municipal.
+
+[15] Prolegomenes au polyptyque de l'abbe Irminon.
+
+[16] Histoire des institutions de la France; Recherches sur quelques
+problemes d'histoire.
+
+[17] Gregor von Tours und seine Zeit.
+
+[18] Deutsche Verfassungsgeschichte.
+
+[19] Geschichte des Beneficialwesens, 1856; Feudalitaet und
+Unterthanenverband, 1863.
+
+[20] Roth is very strong on this point.
+
+[21] Ueber angelsaechsische Rechtsverhaeltnisse, 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
+Staedteverfassung in Deutschland, 1 vol.; Geschichte der Frohnhoefe, 4
+vol.; Geschichte der Dorfverfassung, 1 vol.; Geschichte der
+Markenverfassung, 1 vol.; Geschichte der Staedteverfassung, 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 heoreth-faest, i. cap. 47, Sec. 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, Sec. 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 Athenaeum, 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-maethr) and _gersuma_ (goersemi), 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. Sec. 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.
+_balkr_; _gora_ is the spear-head or its long triangular shape, O.E.
+_gar_, O.N. _geirr_. 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 unlawenher[thorn]e.' 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 Lentener[thorn]e 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 filsinger[thorn]e.'
+
+[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
+peniher[thorn]e 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 [thorn]anc 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'.
+
+
+
+
+
+End of Project Gutenberg's Villainage in England, by Paul Vinogradoff
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