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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/38876-8.txt b/38876-8.txt new file mode 100644 index 0000000..812d1c9 --- /dev/null +++ b/38876-8.txt @@ -0,0 +1,19082 @@ +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) + + + + + + + + + + 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 + +*** END OF THIS PROJECT GUTENBERG EBOOK VILLAINAGE IN ENGLAND *** + +***** This file should be named 38876-8.txt or 38876-8.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/8/8/7/38876/ + +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) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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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) + + + + + + +</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 NEW YORK TORONTO MELBOURNE WELLINGTON +CAPE TOWN SALISBURY IBADAN NAIROBI LUSAKA ADDIS ABABA +BOMBAY CALCUTTA MADRAS KARACHI LAHORE DACCA +KUALA LUMPUR HONG KONG 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—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—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:—"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<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—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—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.</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—the +intimate connexion between the external history of the +Constitution and the working of private law in the courts—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—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<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—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>—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,<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 (33½ 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—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—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—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—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—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—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—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.</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—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.</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—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—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.</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—'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—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—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—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—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—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. 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'<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. 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—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—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—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—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>:—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—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—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—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:—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>:—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:—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:—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 Cœur 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—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—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—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—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—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:—</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:—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—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—<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—freemen holding +unfree land<a name="FNanchor_265_265" id="FNanchor_265_265"></a><a href="#Footnote_265_265" class="fnanchor">[265]</a>—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—<i>gebúr</i>—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—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'—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—<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—<i>ceorl</i>—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—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,—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—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'—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—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—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<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—<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—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—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:—</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,—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—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>—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:—</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) 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) 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<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—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—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<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—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 +<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:—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—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—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—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) 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.</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—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—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—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—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<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—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—'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 ἑστιοπάμων 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—the +description of the Essex manors of Kirby, Horlock, and +Thorpe—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—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—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—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:—</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:—"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:—</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—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—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—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<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—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, &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—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—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—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,—but not of game,—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—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—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>—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<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—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:—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—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—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<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—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—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—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.</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—the +juridical organisation of the manor—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—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—Norfolk—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—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—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—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<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—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—<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—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—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—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'—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,—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—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<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—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—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.</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—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—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—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.—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<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—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—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—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—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——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"> </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"> </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"> </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"> </td></tr> +<tr><td align="left" colspan="3"></td><td align="left">Joh'es Ordmar</td><td class="brb"> </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"> </td><td class="blt"> </td><td align="left" rowspan="2">Maur' ate Neuthon'</td><td class="brb"> </td><td class="blt"> </td><td align="left" rowspan="2"> + <table border="0" cellpadding="2" cellspacing="0" summary="nest1"><tr><td>Estrelda</td><td class="brt"> </td><td class="linel" rowspan="2"> </td><td rowspan="2">man' apud Machynge</td></tr> + <tr><td align="left">Agnes</td><td class="brb"> </td></tr></table></td></tr> +<tr><td class="linel" rowspan="18"> </td><td class="brt"> </td><td class="blb"> </td></tr> +<tr><td rowspan="2"></td><td> </td></tr> +<tr><td class="brb"> </td><td class="blt"> </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"> </td><td class="linel" rowspan="3"> </td><td rowspan="3">man' London'.</td></tr> + <tr><td align="left">Walt's Rotlonde</td><td class="liner"> </td></tr> + <tr><td align="left">Thomas Rotlonde</td><td class="brb"> </td></tr></table></td></tr> +<tr><td align="left">Joh'es Rotlonde</td><td class="brt"> </td><td class="linel"> </td></tr> +<tr><td rowspan="4"></td><td class="liner"> </td><td class="blb"> </td></tr> +<tr><td> </td></tr> +<tr><td class="liner"> </td><td class="blt"> </td><td align="left">Joh'es Pany</td></tr> +<tr><td class="brb"> </td><td class="linel" rowspan="3"> </td><td align="left">Will's Pany</td></tr> +<tr><td class="brb"> </td><td align="left" rowspan="2">Will's Pany</td><td class="brt"> </td><td align="left">Ric's Pany</td></tr> +<tr><td align="right">Nativus—</td><td class="liner" rowspan="11"> </td><td class="blt"> </td><td align="left" rowspan="2">Nich's ate Neuthon'</td><td class="brt"> </td><td class="liner" rowspan="2"> </td><td align="left">Elias Pany—modo tenens</td></tr> +<tr><td rowspan="8"></td><td class="linel" rowspan="20"> </td><td class="liner" rowspan="9"> </td><td></td><td class="blb"> </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"> </td><td class="blt"> </td><td align="left">Ric's le Couper</td></tr> +<tr><td align="left" rowspan="2">Thomas le Couper</td><td class="brb"> </td><td class="linel" rowspan="2"> </td><td align="left">Simon le Couper</td></tr> +<tr><td class="brt"> </td><td align="left">Joħes le Couper</td></tr> +<tr><td></td><td class="liner"> </td><td class="blb"> </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'—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"> </td><td align="left">Wymarks</td><td>.</td><td>.</td><td align="left">nullus ab eo</td></tr> +<tr><td> </td></tr> +<tr><td class="brb"> </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"> </td><td class="blt"> </td><td align="left">Will's Woderove</td></tr> +<tr><td class="brt"> </td><td>.</td><td>.</td><td class="brt"> </td><td class="linel"> </td><td align="left">n.</td></tr> +<tr><td class="liner" rowspan="9"> </td><td></td><td></td><td class="liner"> </td><td class="blb"> </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"> </td><td class="blt"> </td><td align="left">Steph's Pistor</td></tr> +<tr><td rowspan="5"></td><td class="linel" rowspan="4"> </td><td align="left">Will's Pistor</td></tr> +<tr><td class="liner" rowspan="3"> </td><td class="blt"> </td><td align="left" rowspan="2">Will's Pistor</td><td class="brb"> </td><td align="left">Rog's Pistor</td></tr> +<tr><td class="linel" rowspan="6"> </td><td class="brt"> </td><td align="left">Joh'es Pistor</td></tr> +<tr><td></td><td class="liner" rowspan="2"> </td><td align="left">Cristina Pistor</td></tr> +<tr><td class="brb"> </td><td></td><td class="blb"> </td><td align="left">Isabella</td></tr> +<tr><td align="right">Nativus—</td><td class="blb"> </td><td align="left">Rog's ate Neuthon'</td><td class="brt"> </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"> </td><td></td><td class="liner"> </td><td class="blt"> </td><td align="left">Joh'es Broket</td></tr> +<tr><td align="left" rowspan="2">Agnes ate Neuthon'</td><td class="brb"> </td><td class="linel" rowspan="3"> </td><td align="left">Joh'es Broket Junior</td></tr> +<tr><td class="blb"> </td><td class="brt"> </td><td align="left">Matild' Broket</td></tr> +<tr><td></td><td></td><td></td><td class="liner" rowspan="2"> </td><td align="left">Isabella Broket</td></tr> +<tr><td></td><td></td><td></td><td class="blb"> </td><td align="left">Agnes Broket</td></tr> +<tr><td align="right">Nativus—</td><td class="liner" rowspan="9"> </td><td class="blt"> </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"> </td><td rowspan="8"></td><td rowspan="5" colspan="3"></td><td class="liner" rowspan="4"> </td><td class="blt"> </td><td align="left">Ric's ate Hache Junior</td></tr> +<tr><td class="linel" rowspan="9"> </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"> </td><td align="left">Will's ate Hache</td></tr> +<tr><td class="liner" rowspan="2"> </td><td class="blt"> </td><td align="left" rowspan="2">Adam ate Hache</td><td class="brt"> </td><td align="left">Will's ate Hache</td></tr> +<tr><td class="linel" rowspan="5"> </td><td class="liner" rowspan="5"> </td><td align="left">Joh'es ate Hache</td></tr> +<tr><td class="brb"> </td><td rowspan="4"></td><td align="left">Alic' ate Hache</td></tr> +<tr><td align="right">Nativus—</td><td class="brb"> </td><td align="left" rowspan="2">Rog's ate Hache</td><td class="brt"> </td><td align="left">Matild' ate Hache</td></tr> +<tr><td align="right" rowspan="2">Editha la Daye</td><td class="brt"> </td><td class="liner" rowspan="3"> </td><td align="left">Emmot' ate Hache</td></tr> +<tr><td class="liner" rowspan="12"> </td><td rowspan="2"></td><td class="blb"> </td><td align="left">Marger' ate Hache</td></tr> +<tr><td rowspan="10"></td><td class="blb"> </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"> </td><td class="blt"> </td><td align="left">Will's ate Broke</td></tr> +<tr><td class="linel" rowspan="5"> </td><td align="left">Walt's ate Broke</td></tr> +<tr><td class="brb"> </td><td align="left">Walt's ate Broke</td></tr> +<tr><td class="liner" rowspan="4"> </td><td class="blt"> </td><td align="left">Ranulfus ate Broke</td><td class="brt"> </td><td align="left">Ric's ate Broke—London'</td></tr> +<tr><td class="linel" rowspan="8"> </td><td rowspan="5"></td><td class="liner" rowspan="3"> </td><td align="left">Cristin' ate Broke</td></tr> +<tr><td align="left">Matild' ate Broke</td></tr> +<tr><td class="blb"> </td><td align="left">Agnes ate Broke</td></tr> +<tr><td align="left" rowspan="2">Walt's ate Hache</td><td class="brb"> </td><td></td><td></td><td align="left"> </td></tr> +<tr><td align="right">Nativus—</td><td class="blb"> </td><td class="brt"> </td><td class="liner"> </td><td class="blt"> </td><td align="left">Walterus Mathy</td></tr> +<tr><td colspan="4" rowspan="4"></td><td class="liner" rowspan="4"> </td><td align="left" rowspan="2">Matheus ate Broke</td><td class="brb"> </td><td class="linel" rowspan="2"> </td><td align="left">Will's Mathy</td></tr> +<tr><td class="brt"> </td><td align="left">Agnes Mathy</td></tr> +<tr><td></td><td class="liner"> </td><td class="blb"> </td><td align="left">Emmot' Mathy</td></tr> +<tr><td class="blb"> </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—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.</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:—</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—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"> </td> +<td class="blt"> </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"> </td> +<td class="linel" rowspan="2"> </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> </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"> </td> +<td class="linel"> </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"> </td> +<td class="linel"> </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"> </td> +<td class="liner"> </td> +<td class="linel"> </td> +<td align="left">§ Nicholaus Toni tenet in eadem consimile tenementum +de eodem pro consimili servicio faciendo +eidem.</td> +</tr><tr> +<td class="liner"> </td> +<td class="blb"> </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> </td> +</tr><tr> +<td align="center" rowspan="2">§ Lib[ere] tenentes.</td> +<td class="brb"> </td> +<td class="blt"> </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"> </td> +<td class="blb"> </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—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<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—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.—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.</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—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.—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.—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.—<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.'—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—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—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.—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.</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—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>:—<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—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—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—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.'</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—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 <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—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.'—'<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—que vocantur Akermannelondes, +quorum W.L. tenet ½ 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—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—24 plenarii +villani et 2 dimidii villani—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 13½ 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. ½ 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:—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.'—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.</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—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—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—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.—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.'—(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.'—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 ½ 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>bȧlkr</i>; <i>gora</i> +is the spear-head or its long triangular shape, O.E. <i>gȧr</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 4½ 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,—'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—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—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?—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—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).—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—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 + +*** END OF THIS PROJECT GUTENBERG EBOOK VILLAINAGE IN ENGLAND *** + +***** This file should be named 38876-h.htm or 38876-h.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/8/8/7/38876/ + +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) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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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 + +*** END OF THIS PROJECT GUTENBERG EBOOK VILLAINAGE IN ENGLAND *** + +***** This file should be named 38876.txt or 38876.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/8/8/7/38876/ + +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) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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