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diff --git a/38876.txt b/38876.txt new file mode 100644 index 0000000..f867d8b --- /dev/null +++ b/38876.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: 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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