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.