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.