The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Second Edition
• Preface to the First Edition
• List of Abbreviations
• List of Texts Used. 1
• Additions and Corrections
• Book I: Sketch of Early English Legal History
• Chapter I: The Dark Age In Legal History
• Chapter II: Anglo-saxon Law
• Chapter III: Norman Law 1
• Chapter IV: England Under the Norman Kings
• Chapter V: Roman and Canon Law
• Chapter VI: The Age of Glanvill
• Chapter VII: The Age of Bracton
• Book II: The Doctrines of English Law In the Early Middle Ages
• Chapter I: Tenure
• Chapter II: The Sorts and Conditions of Men
• Chapter III: Jurisdiction and the Communities of the Land

BOOK II

THE DOCTRINES OF ENGLISH LAW IN THE EARLY MIDDLE AGES

CHAPTER I

Tenure

Arrangement of this book.How best to arrange a body of medieval law for the use of modern readers is a difficult question. Of the two obvious methods each has its disadvantages. On the one hand, if we were to adopt the arrangement which would be the best for a code or digest of our modern law, though we might possibly succeed in forcing the old rules into new pigeon-holes, we should run a great risk of ignoring distinctions which our ancestors saw, and a yet greater risk of insisting on distinctions which for them had no existence. On the other hand, were we to aim at such an arrangement as a medieval lawyer would have adopted, the result would be to hide those matters which interest us behind the intricate mass of procedural rules which interested him. The nature of both these dangers may be explained by a few words.

Possible methods of arrangement.The arrangement of Bracton’s treatise will for a moment seem one that is familiar enough to every lawyer; it is the most famous of all schemes. Following the Institutes, he treats of Persons, Things, Actions. But if we may take the number of folios given to each of these topics as an indication of its importance in his eyes,(1)The medieval scheme of law. we find that the relation between them may be expressed by the figures 7: 91: 356.1 Nor is this all. It is to his “law of actions” that we must often look for substantive English law. To a high degree in his treatment of “persons,” to a less, but marked, degree in his treatment of “things,” he is dependent on Azo and Roman Law. It is only as he approaches the law of “actions” that we begin to know that he is giving us practicable English law and not speculative jurisprudence. As to Glanvill, the whole of his book is, we may say, devoted to the law of actions; he plunges at once into an account of the writ of right; and such arrangement as the Leges Henrici have, puts jurisdiction and procedure in the forefront. That characteristic mark of ancient jurisprudence, the prominent place given to what we sometimes speak of as “adjective law,” the apparent subordination of rights to remedies, is particularly noticeable in our own case, and endures until modern times: and naturally, for our common law is the law of courts which gradually acquired their jurisdiction by the development and interpretation of procedural formulas. Still, though we shall have to say much about the “forms of action,” we need not introduce the rules of property law as though they were but subsidiary to the law about assizes, writs of right and actions of trespass.

(2)The modern scheme.The danger that would be run were we to follow the other of the two courses may be illustrated by reference to that division of law into “public” and “private” which seems eminently well suited to be among the first outlines of any institutional work on modern law. Bracton knew of the distinction and could notice it as a matter of scholastic learning; but he makes little use of it.2 He could hardly have used it and yet dealt fairly with his materials. Feudalism, we may say, is a denial of this distinction. Just in so far as the ideal of feudalism is perfectly realized, all that we call public law is merged in private law: jurisdiction is property, office is property, the kingship itself is property; the same word dominium has to stand now for ownership and now for lordship. Again, the theory urged by a modern writer,3 that “public law” is but a department of the “law of persons,” however inapplicable to modern states, may sometimes be applied with advantage to the middle ages. Any such conception as that of “the state” hardly appears on the surface of the law; no line is drawn between the king’s public and private capacities, or it is drawn only to be condemned as treasonable. The king, it is true, is a highly privileged as well as a very wealthy person; still his rights are but private rights amplified and intensified. He has greater rights than any other lord; but it is a matter of degree; many lords have some “regalities”; the Earl of Gloucester has many, and the Earl of Chester more. Certainly it would be easy for us to exaggerate the approach made in any country, more especially in En gland, to the definite realization of this feudal ideal; but just in so far as it is realized, “public law” appears as a mere appendix to “real property law” modified in particular cases by a not very ample “law of persons.”

Our own course.Now albeit we cannot adopt either of these two methods to the neglect of the other and must consider both medieval lawyers and modern readers, we need not work without a plan. In any body of law we are likely to find certain ideas and rules that may be described as elementary. Their elementary character consists in this, that we must master them if we are to make further progress in our study; if we begin elsewhere, we are likely to find that we have begun at the wrong place. Only some experience of the particular body of law that is in question will direct us to the proper quarter; but as regards the law of the feudal time we can hardly do wrong in turning to the law of land tenure as being its most elementary part. We shall begin therefore by speaking of land tenure, but in the first instance we shall have regard to what we may call its public side; its private side we may for a while postpone, though we must not forget that this distinction between the two sides of property law is one that we make for our own convenience, not one that is imposed upon us by our authorities. From land tenure we shall pass to consider the law of personal condition. The transition will be easy, for the broadest distinction between classes of men, the distinction between freemen and men who are not free, is intricately connected with land tenure, in so much that the same word villenagium is currently used to denote both a personal status and a mode of tenure. Then we shall turn to the law of jurisdiction, for this again we shall find to be intertwined with the land law; and along with the law of jurisdiction we must examine “the communities of the land.” Having dealt with these topics we shall, it is hoped, have said enough of political structure and public affairs, for those matters which are adequately discussed by historians of our constitution we shall avoid. Turning then to the more private branches of our law, we shall take as our chief rubrics, “Ownership and Possession,” “Contract,” “Inheritance” and “Family Law,” while our two last chapters will be devoted, the one to “Crime and Tort,” the other to “Procedure.” We are well aware that this arrangement may look grotesque to modern eyes; since, for example, it thrusts the law of persons into the middle of the law of property. Our defence must be that, after many experiments, we have planned this itinerary as that which will demand of us the least amount of repetition and anticipation, and therefore enable us to say most in the fewest words. We shall speak for the more part of the law as it stood in the period that lies between 1154 and 1272. This will not prevent us from making occasional excursions into earlier or later times when to do so seems advisable, nor from looking now and again at foreign countries; but with the age of Glanvill and the age of Bracton, we shall be primarily concerned. Again, we shall be primarily concerned with the evolution of legal doctrines, but shall try to illustrate by real examples some of the political and economic causes and effects of those rules that are under our examination. We have not to write a practical hand-book of medieval law, nor, on the other hand, have we to describe the whole of medieval life.—But an abstract discourse about method is seldom very profitable. Therefore, without more ado, we turn to the law of land tenure and begin with its fundamental dogma.

§ 1.

Tenure in General

Derivative and dependent tenure.Every acre of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus:— Z tenet terram illam de . . . domino Rege. The king himself holds land which is in every sense his own; no one else has any proprietary right in it; but if we leave out of account this royal demesne, then every acre of land is “held of” the king. The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately. In the simplest case he holds it immediately of the king; only the king and he have rights in it. But it well may happen that between him and the king there stand other persons; Z holds immediately of Y, who holds of X, who holds of V, who holds . . . of A, who holds of the king. Let us take one real instance:—in Edward I.’s day Roger of St. German holds land at Paxton in Huntingdonshire of Robert of Bedford, who holds of Richard of Ilchester, who holds of Alan of Chartres, who holds of William le Boteler, who holds of Gilbert Neville, who holds of Devorguil Balliol, who holds of the king of Scotland, who holds of the king of England.4 A feudal ladder with so many rungs as this has is uncommon; but theoretically there is no limit to the possible number of rungs, and practically, as will be seen hereafter, men have enjoyed a large power, not merely of adding new rungs to the bottom of the ladder, but of inserting new rungs in the middle of it. The person who stands at the lower end of the scale, the person who seems most like an owner of the land, and who has a general right of doing what he pleases with it, is said to hold the land in demesne; Z tenet terram in dominico, or in dominico suo.5 We suppose that he holds it of Y; in that case Y is the lord (dominus) of Z, and Z is the tenant (tenens) of Y. But Y again is said to hold the land; he holds it however not in demesne but in service (tenet terram illam, non tamen in dominico sed in servitio); and Y again must hold it of someone—let us say of X —whose tenant he will be, who will be his lord, and who also will be said to hold the land in service. Ultimately we shall reach the king; A, or some other person, will hold the land immediately of the king and be his tenant in chief (in capite). Every person who stands between the king and him who holds in demesne, every mesne lord or mesne, is both lord and tenant, lord as regards those who stand below him, tenant as regards those who stand above.6

Universality of dependent tenure.Before attempting to analyze this notion of dependent and derivative tenure, let us first observe how universally it has been applied.7 Not only has every acre of land been brought within its scope, so that the English lawyer cannot admit even a bare possibility of land being holden of no one, but the self-same formula has been made to cover relationships which have little in common. An Earl of Chester, who may at times behave like a sovereign prince, holds his county palatine of the king; the cottier, who like enough is personally unfree, holds his little croft of some mesne lord, or of the king himself. Even when of late a new mode of cultivating the soil has made its appearance and lords have let land to farmers for terms of years at substantial money rents, this new relationship has been brought within the old formula: the lessee holds the land of the lessor. Even when the tenant has no rent to pay, no temporal service to perform, even when the land has been devoted to God and the saints and is possessed by a religious house in free alms, still the formula has been found equal to the occasion: the religious community holds the land of the donor. We see at once therefore that the formula must be very elastic, that the notion of tenure must be in the highest degree an abstract notion. In England tenure is no mark of a class, and we may say the same of “feudal” tenure.

Feudal tenure.The term feodum, which in Anglo-French is represented by fe, fie, fee and in English by fee, is one of the words which came in with the Conqueror, and perhaps for a short while it carried about with it a sense of military or noble tenure; but very soon it was so widely used as to imply no more than heritability.8 This is its settled sense in the thirteenth century. To say of a tenant that he holds in fee (tenet in feodo) means no more than that his rights are inheritable. He does not hold for life, he does not hold for a term of years, he does not hold as guardian of an heir, or as one to whom the land has been gaged as security for money; he holds heritably and for his own behoof.9 But nothing more is implied as to the terms of his holding, the relation between him and his lord. His duties to his lord may be onerous or nominal, noble or humble, military or agricultural, but if his rights are heritable, then he holds in fee and the land is feodum suum, at all events if his tenure has about it no taint of villeinage.10 Thus we cannot, as continental writers do, treat feudal law as distinct from the ordinary law of the land, a law to be administered by special courts, a law which regulates some but not all of the proprietary rights that men have in land. We can hardly translate into English the contrast which Germans draw between Lehnrecht and Landrecht. Our Landrecht is Lehnrecht; in so far as feudalism is mere property law, England is of all countries the most perfectly feudalized. But this truth has another aspect:—our Lehnrecht is Landrecht; feudal law is not a special law applicable only to one fairly definite set of relationships, or applicable only to one class or estate of men; it is just the common law of England. That extensive application of the feudal formula (Y tenet in feodo de X) which is characteristic of England, and which perhaps was possible only in a conquered country, must have impaired its intensive force.11 If it has to describe the relation between the king and the palatine earl, the relation (slight enough in England) between the pious founder and the religious house that he has endowed, the relation between the lord of a manor and the tenants who help to plough and reap his fields, the mere “cash nexus” between a lessor and a lessee who has taken the land heritably at a full money rent, it cannot mean very much. But this collection of the most diverse relationships under one head will have important effects; the lower “tenures” will be assimilated to the higher, the higher to the lower; the “feud” must lose half its meaning by becoming universal.12

Analysis of dependent tenure.It is clear then that of dependent or of feudal tenure in general, little can be said: but still some analysis of it is possible. We may at least notice that it seems to be a complex of personal rights and of real rights. On the one hand, the lord has rights against his tenant, the tenant rights against his lord: the tenant owes services to his lord, the lord, at least normally, owes defence and warranty to his tenant. On the other hand, both lord and tenant have rights in the land, in the tenement, the subject of the tenure.13 The tenant in demesne, the tenant on the lowest step of the feudal scale, obviously has rights in the land, amounting to a general, indefinite right of using it as he pleases. But his lord also is conceived as having rights in the land. We have not adequately described his position by saying that he has a right to services from his tenant. Of him as well as of his tenant it may be said that he holds the land, not indeed in demesne but in service, that the land is his land and his fee, and even that he is seised, that is, possessed of the land.14 What has been said of the demesne tenant’s immediate lord, may be said also of that lord’s lord; he also has rights in the land and the land is in some sort his. This, when regarded from the standpoint of modern jurisprudence, is perhaps the most remarkable characteristic of feudalism:—several different persons, in somewhat different senses, may be said to have and to hold the same piece of land. We have further to conceive of the service due from the tenant to his lord as being a burden on the tenement. It is service owed by the tenement. This idea is so deeply engrained in the law that the tenement is often spoken of as though it were a person who could be bound by obligations and perform duties: hides and virgates must send men to the war, must reap and mow and do suit of court; “these two half-hides ought to carry the king’s writs whenever they come into the county.”15 But the vast liberty that men have enjoyed of creating new tenures and sub-tenures gives us wonderful complications: the obligation of the tenement has to be kept distinct from the obligation of the tenant. The tenement may be burdened with military service, and yet, as between lord and tenant, the lord and not the tenant may be bound to do it: all the same the land itself is burdened with the duty and the lord’s overlord may have his remedy against the land.

Obligations of the tenant and of the tenement.To take a simple case:—The king has enfeoffed A to hold by military service; A can now proceed to enfeoff B (whether he can do so without the king’s leave is a question which we postpone), and may enfeoff B by some quite other service; B for example is to pay A a money rent. Now as regards the king, the land is burdened with and owes the military service, the king can enforce the service by distraining the land for its performance, that is, by seizing any chattels that are found on it, which chattels will probably belong to B, or (at least in some cases) by seizing the land itself. But A and B on the occasion of the feoffment, though they cannot destroy the king’s right or free the land from the military service, may none the less, as between themselves, settle the incidence of that service: A may agree that he will do it, or the bargain may be that B is to do it, besides paying his money rent to A. The terminology of Bracton’s day and of yet earlier times neatly expresses the distinction between the service which the tenant owes to his immediate lord by reason of the bargain which exists between them, and the service which was incumbent on the tenement whilst it was in the lord’s hand.Intrinsec and forinsec service. The former is intrinsec service, the latter forinsec service; the former is the service which is created by, which (as it were) arises within, the bargain between the two persons, A and B, whose rights and duties we are discussing; the latter arises outside that bargain, is “foreign” to that bargain; nothing that the bargainers do will shift it from the land, though, as between themselves, they can determine its incidence. Suppose that A has undertaken to discharge this burden, then if the king attacks the land in B’ s hand, B will have a remedy against A; there is a special form of action by which such remedy is sought, the action of mesne (breve de medio), very common in the thirteenth century; A who is mesne (medius) between the king and B is bound to “acquit” B of this “forinsec service,” to hold him harmless against the king’s demands.16 And then, if B enfeoffs C, the problem will reappear in a more complicated shape; some new service will perhaps be created; for instance C, who is a parson, is to pray for the soul of B’ s ancestors; but there are two other services incumbent on the land, the rent that B owes to A, the military service that A owes to the king, and in one way or another those services must be provided for. As between themselves, B and C can settle this matter by the terms of their bargain, but without prejudice to the rights of A, and of the king. It is no impossibility that Edward should hold in villeinage of Ralph, who holds in free socage of the Prior of Barnwell, who holds in frankalmoin of Earl Alan, who holds by knight’s service of the king.17 Just as at the present day one and the same acre of land may be leasehold, copy-hold and freehold—for there is no land without a freeholder—so in the past one and the same acre might be holden by many different tenures. It owed many and manifold services, the incidence of which, as between its various lords and tenants, had been settled by complicated bargaining.18

Classification of tenures. Little more could at this moment be said of tenure in general—an abstraction of a very high order. Efforts, however, had been made to classify the tenures, to bring the infinite modes of service under a few heads, and before the end of the twelfth century the great outlines which were to endure for long ages had been drawn, though neither in Glanvill, nor even in Bracton, do we find just that scheme of tenures which became final and classical. In particular, “fee farm” and “bur-gage” threaten to be coordinate with, not subordinate to, “free socage”; “tenure by barony” is spoken of as something different from “tenure by knight’s service”; and in the north there are such tenures as “thegnage” and “drengage” which are giving the lawyers a great deal of trouble. Still, subject to some explanations which can be given hereafter, we may say that in Bracton’s day tenures are classified thus:—they are either free or not free; the free tenures are (1) frankalmoin, (2) military service, (3) serjeanty, (4) free socage. In this order we will speak of them.19

§ 2.

Frankalmoin

Frankalmoin.At the beginning of the thirteenth century an ever-increasing quantity of land was held by ecclesiastics, regular and secular, in right of their churches by a tenure commonly known as frankalmoin, free alms, libera elemosina. The service implied by this tenure was in the first place spiritual, as opposed to secular service, and in the second place it was an indefinite service. Such at least was the doctrine of later days.20 We may take the second characteristic first. At all events in later days,21 if land was given to a churchman and there was a stipulation for some definite service albeit of a spiritual kind (for example a stipulation that the donee should sing a mass once a year or should distribute a certain sum of money among the poor), the tenure thus created was called, not frankalmoin, but tenure by divine service; the tenant might perhaps be compelled to swear fealty to his lord, and the performance of the service might be exacted by distress or by action in the king’s courts.22 On the other hand, if the tenant held in frankalmoin, that is, if the terms of the gift (as was often the case) said nothing of service or merely stipulated in a general way for the donee’s prayers, then no fealty was due; and only by ecclesiastical censures could the tenant be compelled to perform those good offices for the donor’s soul that he had impliedly or expressly undertaken. Perhaps this distinction was admitted during the later years of the period with which we are now dealing; but we shall hereafter see that in this region of law there was a severe struggle between the temporal and the ecclesiastical courts, and very possibly an attempt on the part of the former to enforce any kind of service that could be called spiritual would have been resented. The question is of no great importance, because stipulations for definite spiritual services were rare when compared with gifts in frankalmoin.23

Meaning of “alms.”Here, as in France, the word elemosina became a technical word, but it was not such originally. At first it would express rather the motive of the gift than a mode of tenure that the gift creates. And so in Domesday Book it is used in various senses and contexts. In some cases a gift has been made by the king in elemosina, but the donee is to all appearance a layman; in one case he is blind, in another maimed; he holds by way of charity, and perhaps his tenure is precarious. To hold land “in charity” might well mean to hold during the giver’s pleasure, and it may be for this reason that the charters of a later day are careful to state that the gift has been made, not merely in alms, but “in perpetual alms.”24 Then, again, in some parts of the country it is frequently noted that the parish priest has a few acres in elemosina; in one case we learn that the neighbours gave the church thirty acres in alms.25 There are, however, other cases in which the term seems to bear a more technical sense: some religious house, English or French, holds a considerable quantity of land in alms; we can hardly doubt that it enjoys a certain immunity from the ordinary burdens incumbent on landholders in general, including among such landholders the less favoured churches.26 And so again in the early charters the word seems to be gradually becoming a word of art; sometimes we miss it where we should expect to find it, and instead get some other phrase capable of expressing a complete freedom from secular burdens.27 In the twelfth century, the century of new monastic orders, of lavish endowments, of ecclesiastical law, the gift in free, pure, and perpetual alms has a well-known meaning.28

Spiritual service.The notion that the tenant in frankalmoin holds his land by a service done to his lord seems to grow more definite in course of time as the general theory of tenure hardens and the church fails in its endeavour to assert a jurisdiction over disputes relating to land that has been given to God. The tenure thus becomes one among many tenures, and must conform to the general rule that tenure implies service. Still this notion was very old.29 In charters of the twelfth century it is common to find the good of the donor’s soul and the souls of his kinsfolk, or of his lord, or of the king, mentioned as the motive for the gift: the land is bestowed pro anima mea, pro salute animae meae. Sometimes the prayers of the donees are distinctly required, and occasionally they are definitely treated as services done in return for the land:30 thus, for example, the donor obliges himself to warrant the gift “in consideration of the said service of prayers.”31 Not unfrequently, especially in the older charters, the donor along with the land gives his body for burial;32 sometimes he stipulates that, should he ever retire from the world, he shall be admitted to the favoured monastery; sometimes he binds himself to choose no other place of retirement; often it is said that the donees receive him into all the benefits of their prayers.33

Gifts to God and the saints.We have spoken as though gifts in frankalmoin were made to men; but, according to the usual tenour of their terms, they were made to God. As Bracton says, they were made primo et principaliter to God, and only secundario to the canons or monks or parsons.34 A gift, for example, to Ramsey Abbey would take the form of a gift “to God and St. Benet of Ramsey and the Abbot Walter and the monks of St. Benet,” or simply “to God and the church of St. Benet of Ramsey,” or yet more briefly “to God and St. Benet.”35 The fact that the land was given to God was made manifest by appropriate ceremonies. Often the donor laid the charter of feoffment, or some knife or other symbol of possession upon the altar of the church.36 Clauses denouncing excommunication and damnation against all who should disturb the donee’s possession did not go out of use at the Norman Conquest, but may be found in charters of the twelfth century,37 nor was it uncommon for a religious house to obtain a papal bull confirming gifts already made and thereafter to be made, and, whatever might be the legal effect of such instruments, the moral effect must have been great.38 We are not entitled to treat these phrases which seem to make God a landowner as of no legal value. Bracton more than once founds arguments upon them,39 and they suggest that land given in frankalmoin is outside the sphere of merely human justice.

Free alms and forinsec service.In later days the feature of tenure in frankalmoin which attracts the notice of lawyers is a merely negative feature, namely, the absence of any service that can be enforced by the secular courts. But some distinctions must be drawn. The king might give land to a religious house “in free, pure, and perpetual alms,” and in that case not only would no secular service be due from the donee to the donor, but the land in the donee’s hand would owe no secular service at all. But tenure in frankalmoin is by no means necessarily a tenure in chief of the crown; indeed the quantity of land held in chief of the crown by frankalmoin was never very large. It will be understood that an ecclesiastical person might well hold lands, and hold them in right of his church, by other tenures. The ancient endowments of the bishops’ sees and of the greater and older abbeys were held by knight’s service; the bishop, the abbot, held a barony. Beside this, we constantly find religious houses taking lands in socage or in fee farm at rents and at substantial rents, and though a gift in frankalmoin might proceed from the king, it often proceeded from a mesne lord. In this case the mere gift could not render the land free from all secular service; in the donor’s hand it was burdened with such service, and so burdened it passed into the hands of the donee.40 If the donee wished to get rid of the service altogether, he had to go to the donor’s superior lords and ultimately to the king for charters of confirmation and release. But, as between themselves, the donor and donee might arrange the incidence of this “forinsec service” as pleased them best. The words “in free, pure, and perpetual alms” seems to have implied that the tenant was to owe no secular service to his lord; but they did not necessarily imply that, as between lord and tenant, the lord was to do the forinsec service. And so we find the matter settled in various ways by various charters of donation:— sometimes it is stipulated that the tenant is to do the forinsec service,41 sometimes the lord burdens himself with this,42 often nothing is said, and apparently in such case the service falls on the lord.

Pure alms.Another rule of interpretation appears, though somewhat dimly. In accordance with later books, we have spoken as though a gift in frankalmoin, in free alms, always implied that no secular service was due from the donee to the donor. But the words generally used in such gifts were “free, pure, and perpetual alms,” and in Bracton’s day much might turn on the use of the word “pure.”43 Seemingly there was no contradiction between a gift in “free and perpetual alms” and the reservation of a temporal service, and many instances may be found of such gifts accompanied by such reservations. This will give us cause to believe that the exemption from secular service had not been conceived as the core of tenure in frankalmoin; and if we find, as well we may, that a donor sometimes stipulates for secular service, though he makes his gift not only in free but even in pure alms, our belief will be strengthened.44

Free alms and ecclesiastical jurisdiction.The key to the problem is given by the Constitutions of Clarendon (1164). Freedom from secular jurisdiction rather than freedom from secular service has been the focus of frankalmoin. “If,” says the famous document, “a dispute shall arise between a clerk and a layman, or between a layman and a clerk, concerning any tenement which the clerk asserts to be elemosina and the layman asserts to be lay fee, it shall be determined by a recognition of twelve lawful men and the judgment of the chief justiciar whether (utrum) the tenement belongs to elemosina or belongs to lay fee. And if it be found to belong to elemosina, then the plea shall go forward in the ecclesiastical court: but if it be lay fee, then in the king’s court, or, in case both litigants claim to hold of the same lord, then in the lord’s court. And in consequence of such a recognition, the person who is seised is not to lose his seisin until it has been deraigned by the plea.”45 Let us observe how large a concession to the church the great Henry is compelled to make, even before the murder of Becket has put him in the wrong. This is all that those avitae leges, of which he talks so frequently, will give him, and he claims no more. The clergy have established this principle:—All litigation concerning land held in almoin belongs of right to the ecclesiastical courts. All that the king insists on is this: that, if there is dispute whether the land be almoin or no, this preliminary question must be decided by an assize under the eye of his justiciar. Thus the assize Utrum is established. It is a preliminary process; it will not even serve to give the claimant a possession ad interim; the possessor is to remain possessed; it decides not the title to land, but the competence of courts. Here then we find the essence of almoin as understood in the middle of the twelfth century:—the land is subject to no jurisdiction save that of the tribunals of the church. Even to maintain his royal right to decide the preliminary question of competence was no easy matter for Henry. Alexander III. freely issued rescripts which ordered his delegates to decide as between clerk and layman the title to English land, or at least the possessory right in English lands: he went further, he bade his delegates award possession even in a dispute between layman and layman, though afterwards he apologized for so doing. The avitae leges, therefore, were far from conceding all that the clergy, all that the pope demanded.46

The Assize Utrum. They conceded, however, more than the church could permanently keep. If as regards criminous clerks the Constitutions of Clarendon are the high-water-mark of the claims of secular justice, as regards the title to lands they are the low-water-mark. In Normandy the procedure instituted by Henry, the Breve de Feodo et Elemosina, which was the counterpart, and perhaps the model, of our own Assisa Utrum, seems to have maintained its preliminary character long after Henry’s son had forfeited the duchy: that is to say, there were cases in which it was a mere prelude to litigation in the spiritual forum.47 In England it gradually and silently changed its whole nature; the Assisa Utrum or action Juris Utrum48 became an ordinary proprietary action in the king’s court, an action enabling the rectors of parochial churches to claim and obtain the lands of their churches: it became “the parson’s writ of right.”49 Between the time of Glanvill and the time of Bracton this great change was effected and the ecclesiastical tribunals suffered a severe defeat.50

Defeat of the ecclesiastical claims.The formal side of this process seems to have consisted in a gradual denial of the assize Utrum to the majority of the tenants in frankalmoin, a denial which was justified by the statement that they had other remedies for the recovery of their lands. If a bishop or an abbot thought himself entitled to lands which were with-holden from him, he might use the ordinary remedies competent to laymen, he might have recourse to a writ of right. But one class of tenants in frankalmoin was debarred from this remedy, namely, the rectors of parish churches. Bracton explains the matter thus:— When land is given to a religious house, though it is in the first place given to God and the church, it is given in the second place to the abbot and monks and their successors, or to the dean and canons and their successors; so also land may be given to a bishop and his successors. If then a bishop or an abbot has occasion to sue for the land, he can plead that one of his predecessors was seised of it, just as a lay claimant might rely on the seisin of his ancestor. But with the parish parson it is not so; we do not make gifts to a parson and his successors; we make them to the church, e.g. “to God and the church of St. Mary of Dale.”51 True, that if the parson is ejected from possession, he may have an assize of novel disseisin, for he himself has been seised of a free tenement; but a proprietary (as opposed to possessory) action he cannot bring. He can have no writ of right, for the land has not been given to a parson and his successors, it has been given to the church; he cannot therefore plead that his predecessor was seised and that on his predecessor’s death the right of ownership passed to him; thus the assize Utrum is his only remedy of a proprietary kind.52

The parson and his land.In another context it might be interesting to consider the meaning of this curious argument; it belongs to the nascent law about “corporations aggregate” and “corporations sole.” The members of a religious house can already be regarded as constituting an artificial person; the bishop also is regarded as bearing the persona of his predecessors; the vast temporal possessions of the bishops must have necessitated the formation of some such idea at an early time. But to the parish parson that idea has not yet been applied. The theory is that the parish church itself is the landowner and that each successive parson (persona ecclesiae) is the guardian and fleeting representative of this invisible and immortal being.53 It has been difficult to find a “subject” who will bear the ownership of the lands appropriated to parish churches, for according to a view which is but slowly being discarded by the laity, the landowner who builds a church owns that church and any land that he may have devoted to the use of its parson.54 However, our present point must be that legal argument takes this form—(1) No one can use the assize Utrum who has the ordinary proprietary remedies for the recovery of land; (2) All or almost all the tenants in frankalmoin, except the rectors of parish churches, have these ordinary remedies; (3) The assize Utrum is essentially the parson’s remedy; it is singulare beneficium, introduced in favour of parsons.55 This argument would naturally involve a denial that the assize could be brought by the layman against the parson. According to the clear words of the Constitutions of Clarendon, it was a procedure that was to be employed as well when the claimant was a layman as when he was a clerk. But soon the doctrine of the courts began to fluctuate. Martin Pateshull at one time allowed the layman this action; then he changed his opinion, because the layman had other remedies; Bracton was for retracing this step, because trial by battle and the troublesome grand assize might thus be avoided.56 One curious relic of the original meaning of this writ remained until 1285, when the Second Statute of Westminster gave an action to decide whether a piece of land was the elemosina of one or of another church.57 The assize had originally been a means of deciding disputes between clerks and laymen, or rather of sending such disputes to the competent courts temporal or spiritual, and the Constitutions of Clarendon contain a plain admission that if both parties agree that the land is elemosina, any dispute between them is no concern of the lay courts.

Meaning of frankalmoin in the thirteenth century.We have been speaking of the formal side of a legal change, but must not allow this to conceal the grave importance of the matters that were at stake. The argument that none but parochial rectors have need of the Utrum, and the conversion of the Utrum from a preliminary procedure settling the competence of courts, into a proprietary action deciding, and deciding finally, a question of title to land, involve the assertion that all tenants in frankalmoin (except such rectors) can sue and be sued and ought to sue and be sued for lands in the temporal courts by the ordinary actions. And this, we may add, involves the assertion that they ought not to sue or be sued elsewhere. The ecclesiastical courts are not to meddle in any way with the title to land albeit held in frankalmoin. To prevent their so doing, writs are in common use prohibiting both litigants and ecclesiastical judges from touching “lay fee” (laicum feodum) in the courts Christian; and in Bracton’s day it is firmly established that for this purpose land may be lay fee though it is held in free, pure, and perpetual alms.58 The interference of the spiritual courts with land has been hemmed within the narrowest limits. The contrast to “lay fee” is no longer (as in the Constitutions of Clarendon) elemosina, but consecrated soil, the sites of churches and monasteries and their churchyards, to which, according to Bracton, may be added lands given to churches at the time of their dedication.59 The royal court is zealous in maintaining its jurisdiction; the plea rolls are covered with prohibitions directed against ecclesiastical judges;60 and it is held that this is a matter affecting the king’s crown and dignity—no contract, no oath to submit to the courts Christian, will stay the issue of a writ.61 But the very frequency of these prohibitions tells us that to a great part of the nation they were distasteful. As a matter of fact, a glance at any monastic annals of the twelfth century is likely to show us that the ecclesiastical tribunals, even the Roman curia, were constantly busy with the title to English lands, especially when both parties to the litigation were ecclesiastics. Just when Bracton was writing, Richard Marsh at the instance of Robert Grosseteste was formulating the claims of the clergy:—“He who does any injury to the frankalmoin of the church, which therefore is consecrated to God, commits sacrilege; for that it is res sacra, being dedicated to God, exempt from secular power, subject to the ecclesiastical forum, and therefore to be protected by the laws of the church.”62 It is with such words as these in our minds that we ought to contemplate the history of frankalmoin. A gift in free and pure alms to God and his saints has meant not merely, perhaps not principally, that the land is to owe no rent, no military service to the donor, but also and in the first place that it is to be subject only to the laws and courts of the church.63

§ 3.

Knight’s Service

Military tenure.We now turn to military tenure, and in the first place should warn ourselves not to expect an easy task. In some of our modern books military tenure has a definiteness and a stability which it never had elsewhere. An army is settled on the land, is rooted in the land. The grades in “the service” correspond to, and indeed are, the grades of landholdership; the supreme landlord is commander-in-chief; each of his immediate tenants is the general of an army corps; the regiments, squadrons, companies, answer to honours or manors or knight’s fees. All is accurately defined; each man knows his place, knows how many days he must fight and with what arms. This “feudal system” is the military system of England from the Norman Conquest onwards throughout the middle ages; by means of it our land is defended and our victories are won in Wales and in Ireland, in Scotland and in France.—When however we look at the facts, all this definiteness, all this stability, vanish. We see growth and decay: we see decay beginning before growth is at an end. Before there is much law about military tenure it has almost ceased to be military in any real sense. We must have regard to dates. Every one knows that the military tenure of Charles I.’s reign was very different from the military tenure of Edward I.’s; but this again was very different from the military tenure of Henry I.’s or even of Henry II.’s reign.

Growth and decay of military tenure.Soon after the Conquest a process begins whereby the duty of service in the army becomes rooted in the tenure of land. This goes on for a century; but before it is finished, before the system of knight’s fees has been well ordered and arranged, the kings are already discovering that the force thus created is not what they want, or is not all that they want. It may serve to defend a border, to harry Wales or Scotland for a few weeks in the summer, but for continuous wars in France it will not serve; the king would rather have money; he begins to take scutages. This, as we shall soon see, practically alters the whole nature of the institution. Another century goes by and scutage itself has become antiquated and unprofitable; another, and scutage is no longer taken. Speaking roughly we may say that there is one century (1066–1166) in which the military tenures are really military, though as yet there is little law about them; that there is another century (1166–1266) during which these tenures still supply an army, though chiefly by supplying its pay; and that when Edward I. is on the throne the military organization which we call feudal has already broken down and will no longer provide either soldiers or money save in very inadequate amounts. However, just while it is becoming little better than a misnomer to speak of military tenure, the law about military tenure is being evolved, but as a part rather of our private than of our public law. The tenant will really neither fight nor pay scutage, but there will be harsh and intricate law for him about the reliefs and wardships and marriages that his lord can claim because the tenure is military. Thus in speaking of tenure by knight’s service as it was before the days of Edward I., we have to speak not of a stable, but of a very unstable institution, and if of necessity we describe it in general terms, this should not be done without a preliminary protest that our generalities will be but approximately true. As to scutage, in the whole course of our history this impost was levied but some forty times, and we cannot be certain that the method of assessing and collecting it remained constant. An English lawyer turning to study the history of these matters should remember that if Littleton had cared to know much about them, he would have had to devote his time to antiquarian research.64

Units of military service.By far the greater part of England is held of the king by knight’s service (per servitium militare): it is comparatively rare for the king’s tenants in chief to hold by any of the other tenures. In order to understand this tenure we must form the conception of a unit of military service. That unit seems to be the service of one knight or fully armed horseman (servitium unius militis) to be done to the king in his army for forty days in the year, if it be called for. In what wars such service must be done, we need not here determine; nor would it be easy to do so, for from time to time the king and his barons have quarrelled about the extent of the obligation, and more than one crisis of constitutional history has this for its cause. It is a question, we may say, which never receives any legal answer.65

The forty days.Even the limit of forty days seems to have existed rather in theory than in practice, and its theoretic existence can hardly be proved for England out of any authoritative document.66 But we hear of some such limit in Norman, French and German law, and attempts have been made to trace it back to the days of the Karlovingian emperors. From the Touraine of the thirteenth century we have a definite statement. “The barons or men of the king are bound, if summoned, to follow him in his host and to serve at their own cost forty days and forty nights with as many knights as they owe him . . . And if the king will keep them more than forty days and forty nights at their cost, they need not stay unless they will; but if the king will keep them at his cost for the defence of the realm, they ought by rights to stay; but if the king would take them out of the realm, they need not go unless they like, after they have done their forty days and forty nights.”67 But the force of such a rule is feeble; when in 1226 the Count of Champagne appealed to it and threatened to quit the siege of Avignon, Louis VIII. swore that if he did so his lands should be ravaged.68 In England when a baron or knight is enfeoffed, his charter, if he has one, says no more than that he is to hold by the service of one knight or of so many knights. When the king summons his tenants to war, he never says how long they are to serve. The exception to this rule is that they are told by John that they are to serve for two quadragesims, eighty days, at the least.69 Occasionally in the description of a military serjeanty, it is said that the serjeant is to serve for forty days, but to this are often added the words “at his own cost,” and we are left to guess whether he is not bound to serve for a longer time at his lord’s cost.70 In 1198 Richard summoned a tenth part of the feudal force to Normandy; nine knights were to equip a tenth; the Abbot of St. Edmunds confessed to having forty knights; he hired four knights (for his own tenants had denied that they were bound to serve in Normandy) and provided them with pay for forty days, namely, with 36 marks; but he was told by the king’s ministers that the war might well endure for a year or more, and that, unless he wished to go on paying the knights their wages, he had better make fine with the king; so he made fine for £100.71 In 1277 the knights of St. Albans served in a Welsh campaign for eight weeks; during the first forty days they served at their own cost; afterwards the king paid them wages.72 No serious war could be carried on by a force which would dissipate itself at the end of forty days, and it seems probable that the king could and did demand longer service, and was within his right in so doing, if he tendered wages, or if, as was sometimes the case, he called out but a fractional part of the feudal force.73 We have to remember that the old duty of every man to bear arms, at least in defensive warfare, was never—not even in France—completely merged in, or obliterated by, the feudal obligation.74 Just when there seems a chance that this obligation may become strictly defined by the operation of the law courts, the king is beginning to look to other quarters for a supply of soldiers, to insist that all men shall be armed, to compel men of substance to become knights, even though they do not hold by military tenure, and to issue commissions of array.

Knight’s fees.But these units of military service, however indeterminate they may be, have become, if we may so speak, territorialized. A certain definite piece of land is a knight’s fee (feodum militis); another tract is conceived as made up of five or ten knight’s fees; another is half, or a quarter, or a fortieth part of a knight’s fee, or, to use the current phrase, it is the fee of half, or a quarter, or a fortieth part of one knight (feodum quadragesimae partis unius militis).75 The appearance of small fractional parts of a knight’s fee could hardly be explained, were it not that the king has been in the habit of taking money in lieu of military service, of taking scutage or escuage (scutagium), a sum of so much money per knight’s fee. Without reference to this we might indeed understand the existence of halves of knight’s fees, for practice has sanctioned the equation duo servientes = unus miles, two serjeants will be accepted in lieu of one knight;76 but a fortieth part of the service of one knight would be unintelligible, were it not that from time to time the service of one knight can be expressed in terms of money. Already in Henry II.’s reign we hear of the twelfth, the twenty-fourth part of a knight’s fee;77 in John’s reign of the fortieth;78 and we soon hear of single acres which owe a definite quantum of military service, or rather of scutage.

Varying size of knight’s fees.To represent to ourselves the meaning and effect of this apportionment is no easy matter. In the first place, we have to observe that the term “knight’s fee” does not imply any particular acreage of land. Some fees are much larger than others. This truth has long been acknowledged and is patent.79 We may indeed see in some districts, for example among the knights of Glastonbury, many fees of five hides apiece;80 but in a single county we may find a hide of land reckoned as a half, a third, a fourth, a fifth, and a sixth of a knight’s fee.81 In the north of England one baron holds sixteen carucates by the service of ten knights, while in another barony the single knight’s fee has as many as fourteen carucates.82 The fees held of the Abbot of Peterborough were extremely small; in some cases he seems to have got a full knight’s service from a single hide or even less;83 on the other hand, a fee of twenty-eight carucates may be found;84 and of Lancashire it is stated in a general way that in this county twenty-four carucates go to the knight’s fee.85 In one case, perhaps in other cases, the law had made some effort to redress this disparity: the fees of the honour of Mortain were treated as notoriously small; three of them were reckoned to owe as much service as was owed by two ordinary fees.86 Perhaps a vague theory pointed to twenty librates of land as the proper provision for a knight; but even this is hardly proved.87

Nature of the apportionment.Another difficulty arises when we ask the question, what was the effect of this apportionment, and in particular what persons did it bind? Modern lawyers will be familiar with the notion that an apportionment of a burden on land may be effectual among certain persons, ineffectual as regards others. Let us suppose that A owns land which is subject to a rent-charge of £100 in favour of M and a land-tax of £10 per annum; he sells certain acres to X; A and X settle as between themselves how the burdens shall be borne; they agree that each shall pay a half, or perhaps one of them consents to accept the whole burden. Now, allowing that this is an effectual agreement between them, we still have the question whether it can in any way affect the rights of M or of the king, who have hitherto been able to treat the whole land as subject to the whole rent-charge and the whole tax. It will not therefore surprise us if we find that the apportionment of military service was not absolute.

The apportionment between the king and his tenant in chief.We may begin by considering the relation between the king and his tenants in chief. We have good reason to believe that the Conqueror when he enfeoffed his followers with tracts of forfeited land defined the number of knights with which they were to supply him, and also that he defined the number of knights that were to be found by the cathedral and monastic churches whose land had not been forfeited. It would not be true to say that in this way the whole of England was, as between the king and his immediate tenants, cut up into knights’ fees. From the Conquest onwards he had immediate tenants who held of him by frankalmoin, by serjeanty, in socage; still in this manner a very large part of England was brought within the scope of military contracts or what could be regarded as such. How definite these contracts were we cannot say, for to all seeming they were not expressed in writing. The only documentary evidence that the great lord of the Conqueror’s day could have produced by way of title-deed, was, in all probability, some brief writ which commanded the royal officers to put him in seisin of certain lands and said nothing about the tenure by which he was to hold them. And again, in the case of the churches, if we speak of a contract, we are hardly using the right word; it was in the king’s power to dictate terms, and he dictated them. Whether in so doing he paid much or any regard to the Old English law and the ancient land-books, is a question not easily decided, for we know little of the legal constitution of Harold’s army. The result was capricious. The relative wealth of the abbeys of Peterborough, St. Edmund’s, St. Albans and Ramsey cannot have been expressed by the figures 60 : 40 : 6 : 4, which represented their fighting strength in the twelfth century; St. Albans may have profited by a charter of King Offa, at which modern diplomatists have looked askance.88 But, at any rate as regards the forfeited lands of the English nobles, William had a free hand; he could stipulate for so many units of military service from this count and so many from that baron. Apparently he portioned out these units in fives and tens. The number of knights for which a great baron is answerable in the twelfth century is generally some multiple of five, such as twenty, or fifty. The total number of knights to which the king was entitled has been extravagantly overrated. It was certainly not 60,000, nor was it 32,000; we may doubt whether it exceeded 5,000. The whole feudal array of England would in our eyes have been but a handful of warriors. He was a powerful baron who owed as many as sixty knights. We are not arguing that William introduced a kind of tenure that was very new in England; but there seems to be no room for doubt that the actual scheme of apportionment which we find existing in the twelfth and later centuries, the scheme which as between king and tenant in chief makes this particular tract of land a fee of twenty or of thirty knights, is, except in exceptional cases, the work of the Conqueror.89

Honours and baronies.At any rate in Henry II.’s day the allotment of military service upon the lands of the tenants in chief may be regarded as complete. It is already settled that this tenant in chief owes the king the service of one knight, while another owes the service of twenty knights. Historians have often observed that the tenants in chief of the Norman king, even his military tenants in chief, form a very miscellaneous body, and this is important in our constitutional history; a separation between the greater and the lesser tenants must be effected in course of time, and the king has thus a power of defining what will hereafter be the “estate” of the baronage. In Henry II.’s day the king had many tenants each of whom held of him but one knight’s fee, or but two or three knights’ fees. On the other hand, there were nobles each of whom had many knights’ fees; a few had fifty and upwards. Now to describe the wide lands held of the king by one of his mightier tenants, the terms honour and barony were used. Between these two terms we can draw no hard line; honour seems to be generally reserved for the very largest complexes of land, and perhaps we may say that every honour was deemed a barony, while not every barony was usually called an honour; but this seems a matter settled by fashion rather than by law; for instance, it is usual to give the name barony, not honour, to the lands which a bishop holds by military service, though some of these baronies were very large.90 To mark the inferior limit of the honours and baronies is not easy. We cannot say that any particular number of knights’ fees was either necessary or sufficient to constitute a barony; in particular, we cannot accept the theory current in after times, that a barony contains thirteen knights’ fees and a third, and therefore is to a knight’s fee as a mark is to a shilling.91 This equation seems to have been obtained, not by an inductive process, but by a deduction, which started with the rule that while the relief paid for a single knight’s fee was a hundred shillings, that paid for a barony was a hundred marks. But neither can we make the facts square with this theory, nor, as will be seen below, can we treat the rule about reliefs as being so ancient as the constitution of baronies.92 Nor must we think of the barony or honour as surrounded by a ring-fence; fragments of it will often lie scattered about in various counties, though there is some castle or some manor which is accounted its “head.”

The barony or honour as a complex of knights’ fees.We find it said of a man not only that he holds a barony (tenet baroniam), but also that he holds by barony (tenet per baroniam). This phrase will deserve discussion hereafter; for the present it is only necessary to notice that every military tenant in chief of the king, whether he has a barony or no, is deemed to owe the service of a certain number of knights. That number may be large or small. Let us suppose that in a given case it is fifty. Then in a sense this tenant may be said to hold fifty knights’ fees. But all the land, at least if all of it be held by one title, and every part of it, is answerable to the king for the fifty knights. This tenant may enfeoff some fifty knights, making each of them liable to serve in the army; he may enfeoff more, giving each feoffee but a fractional part of a fee, that is to say, making him answerable for but a fractional part of one knight’s service; he may enfeoff fewer, making each of them answerable for the service of several knights; he may retain much land in his own hand, and look to hiring knights when they are wanted. But, as between the king and himself, he has fifty knights’ fees; he is answerable, and the land that he holds is answerable, for the production of fifty men. Every acre in the honour of Gloucester was liable to the king for the service of some two hundred knights and more. If the Earl of Gloucester makes default in providing the due number of knights, the king may distrain throughout the honour, or seize the honour into his hands. The exact nature of the power which a lord had of exacting service due to him from a tenement need not be here considered; but the main principle, which runs through the whole law on this subject, is that the service due from the tenant is due also from the tenement, and can be enforced against the tenement into whosesoever hands it may come, regardless of any arrangement that the tenant may have made with his subtenants.

Relativity of the knight’s fee.This may be illustrated by the case of lands held in frankalmoin of a mesne lord, who himself holds by military service. In this case something like an exception was occasionally admitted. The canons of Wroxton held land in frankalmoin of John Montacute; the land was distrained for scutage; but on the petition of the canons, the sheriff was bidden to cease from distraining, “because the frankalmoin should not be distrained for scutages so long as John or his heirs have other lands in the county whence the scutages may be levied.” This is an exception, and a carefully guarded exception; if the tenant has given land in frankalmoin, the king will leave that land free from distress, provided that there be other land whence he can get his service.93 Thus, let us say that a baron holds twenty knights’ fees, and has twenty knights each enfeoffed of a single fee; the boundaries between these fees in no way concern the king; the whole tract of land must answer for twenty knights. An early example of this may be given:—at some time before 1115 the Bishop of Hereford gave Little Hereford and Ullingswick to Walter of Gloucester for the service of two knights; Walter gave Ullingswick as a marriage portion for his daughter Maud free from all knight’s service, and thus, as between all persons claiming under him, the whole service of two knights was thrown on to Little Here ford. Thus really “a knight’s fee” is a relative term; what is two knights’ fees as between C and B, is but part of two as between B and A.94 In the time of Henry II. when the king was beginning to take stock of the amount of military service due to him, it was common for a tenant in chief to answer that he confessed the service of, for example, ten knights, that he had five knights enfeoffed each of a knight’s fee, and that the other five he provided from his demesne.95 In one case, even at the end of the thirteenth century, a lord had not carved out his land into geographically distinct knights’ fees. Somehow or another the Abbot of Ramsey held his broad lands by the service of only four knights, and we may therefore say that he had four knights’ fees. But those fees were not separated areas; he had a number of tenants owing him military service; they chose the four who on any particular occasion should go to the war, and the others contributed to defray the expense by an assessment on the hide.96 Thus the statement that a man holds a barony, or a parcel of knights’ fees, of the king, tells us nothing as to the relationship between him and his tenants, and does not even tell us that he has any tenants at all.

Duty of the military tenant in chief.The military tenant in chief of the crown was as a general rule bound to go to the war in person. If he held by the service of fifty knights, he was bound to appear in person with forty-nine. If he was too ill or too old to fight, he had to send not only a substitute but also an excuse.97 Women might send substitutes and so might ecclesiastics.98 The monks of St. Edmunds thought it a dangerous precedent when in 1193 Abbot Samson in person led his knights to the siege of Windsor.99 How the nature of this obligation was affected by the imposition of scutage is a question that we are not as yet prepared to discuss.

Position of the military subtenant.We must first examine the position of a tenant who holds by knight’s service of a mesne lord, and we will begin with a simple case. One A holds a mass of lands, it may be a barony or no, of the king in chief by the service of twenty knights, and B holds a particular portion of these lands of A by the service of one knight. Now in the first place, B’ s tenement, being part of A’ s tenement, owes to the king the service of twenty knights; it can be distrained by the king for the whole of that service. But, as between A and B, it owes only the service of one knight, and if the king distrains it for more, then A is bound to acquit B of this surplus service; this obligation can be enforced by an action of “mesne.”100 On the other hand, B has undertaken to do for A the service of one knight. The nature of this obligation demands a careful statement:— B is bound to A to do for A a certain quantum of service in the king’s army. We say that B is bound to A; B is not bound to the king; the king it is true can distrain B’ s tenement; but between B and the king there is no personal obligation.101 The king cannot by reason of tenure call upon B to fight; if somehow or other A provides his twenty knights, it is not for the king to complain that B is not among them.102 None the less, the service that B is bound to do, is service in the king’s army. Here we come upon a principle of great importance. According to the law of the king’s court, no tenant is bound to fight in any army but the king’s army, or in any quarrel but the king’s quarrel. It might well have been otherwise; we may see that it nearly was otherwise; we may be fairly certain that in this respect the law was no adequate expression of the current morality; still we cannot say that the law of England ever demanded private warfare.103 Indubitably the military tenant often conceived himself bound to fight for his lord in his lord’s quarrel; but the law enforced no such obligation. True, the obligation which it sanctioned was one that bound the man to the lord, and in a certain sense bound him to fight for his lord. It was at the lord’s summons that the man came armed to the host, and if the lord had many knights, the man fought under the lord’s banner; still he was only bound to fight in the king’s army and the king’s quarrel; his service was due to his lord, still in a very real sense it was done for the king and only for the king:—in short, all military service is regale servitium. It is the more necessary to lay stress upon this principle, for it had not prevailed in Normandy. The Norman baron had knights who were bound to serve him, and the service due from them to him had to be distinguished from the service that he was bound to find for the duke. The Bishop of Coutances owed the duke the service of five knights, but eighteen knights were bound to serve the bishop. The honour of Montfort contained twenty-one knights’ fees and a half for the lord’s service; how many for the duke’s service the jurors could not say. The Bishop of Bayeux had a hundred and nineteen knights’ fees and a half; he was bound to send his ten best knights to serve the king of the French for forty days, and, for their equipment, he took twenty Rouen shillings from every fee; he was bound to find forty knights to serve the duke of Normandy for forty days, and for their equipment he took forty Rouen shillings from every fee; but all the hundred and nineteen knights were bound to serve the bishop with arms and horses.104

Knight’s service due to a lord who owes none.As a matter of fact, however, we sometimes find, even in England, that knight’s service is due, at least that what is called knight’s service is due, to a lord who owes no knight’s service to the king or that more knight’s service is due to the lord than he owes to the king. One cause of this phenomenon may be that the lord is an ecclesiastic who has once held by military service, but has succeeded in getting his tenure changed to frankalmoin by the piety of the king or the negligence of the king’s officers. The chronicler of the Abbey of Meaux tells us how the abbot proved that he held all his lands in Yorkshire by frankalmoin and owed no military service, and then how he insisted that lands were held of him by military tenure and sold the wardships and marriages of his tenants.105 Since he was not bound to find fighting men, his tenants were not bound to fight; still their tenure was not changed; he was entitled to the profitable casualties incident to knight’s service. A similar result might be obtained by other means. The Abbot of St. Edmunds held his barony of the king by the service of forty knights; such at least was the abbot’s view of the matter; but he had military tenants who, according to his contention, owed him altogether the service of fifty-two knights: or, to put it another way, fifty-two knights’ fees were held of him, though as between him and the king his barony consisted of but forty.106 The view taken by the knights was that the abbot was entitled to the service of forty knights and no more; the fifty-two fees had to provide but forty warriors or the money equivalent for forty. But in Richard I.’s day Abbot Samson, according to the admiring Jocelin, gained his point by suing each of his military tenants in the king’s court. Each of the fees that they held owed the full contribution to every scutage and aid, so that when a scutage of 20 shillings was imposed on the knight’s fee, the abbot made a clear profit of £12.107 Bracton says distinctly that the tenant in socage can create a military subtenure. This, however, seems to mean that a feoffor may, if he chooses, stipulate for the payment of scutage, even though the tenement owes none to the king. In such case the scutage may seem to us but a rent capriciously assessed, but apparently Bracton would call the tenure military, and it would serve to give the lord the profitable rights of wardship and marriage.108 The extraordinary licence which men enjoyed of creating new tenures gave birth to some wonderful complications. If B holds a knight’s fee of A, then A can put X between himself and B, so that B will hold of X and X of A; but further, the service by which X will hold of A need not be the service by which B has hitherto been holding of A and will now hold of X. In Richard’s reign Henry de la Pomerai places William Briwere between himself and a number of tenants of his who altogether owe the service of 5⁵⁄24 knights or thereabouts; but William is to hold of Henry by the service of one knight.109 To “work out the equities” arising between these various persons would be for us a difficult task: still no good would come of our representing our subject-matter as simpler than really it is. Lastly, as already hinted, we must not suppose that the barons or even the prelates of the Norman reigns were always thinking merely of the king’s rights when they surrounded themselves with enfeoffed knights. They also had their enemies, and among those enemies might be the king. Still the only military service demanded by anything that we dare call English law was service in the king’s host. It would further seem, that Henry II., not without some success, endeavoured to deduce from this principle the conclusion that if a tenant in chief enfeoffed more knights than he owed to the king, he thereby increased the amount of the service that the king could demand from him. Such a tenant in chief had, we may say, been making evidence against himself: this was the opinion of his royal lord.110

Scutage.The practice of taking scutages must have introduced into the system a new element of precision and have occasioned a downward spread of the tenure that was called military. The extent of the obligation could now be expressed in terms of pounds, shillings and pence; and tenants who were not really expected to fight might be bound to pay scutage. On the other hand, the history of scutage is full of the most perplexing difficulties. Before approaching these we will once more call to mind the fact that scutage is an impost of an occasional kind, that there never were more than forty scutages or thereabouts.

Nature of scutage. We are wont to think of scutage as of a tax introduced by Henry II. in the year 1159, a tax imposed in the first instance on the military tenants in chief by way of commutation for personal service, a tax which they in their turn might collect from their subtenants. But it seems extremely probable that at a much earlier date payments in lieu of military service were making their appearance, at all events in what we may call the outer circles of the feudal system.111 In no other way can we explain the existence, within a very few years after 1159, of small aliquot parts of knights’ fees. When it is said that a man holds the twentieth part of a fee, this cannot mean that he is bound to serve for two days in the army; it must mean that he and others are bound to find a warrior who will serve for forty days, and that some or all of them will really discharge their duty by money payments. We read too in very ancient documents of payments for the provision of knights112 and of an auxilium exercitus, the aid for a military expedition.113 In Normandy the equivalent for our scutage is generally known as the auxilium exercitus.114 In England the two terms seem in course of time to have acquired different meanings; the lord exacted a scutage from his military, his nominally military tenants, while he took an “army aid” from such of his tenants as were not military even in name.115 But what we may call the natural development of a system of commutation and subscription between tenants in the outer circles of feudalism, was at once hastened and perplexed by a movement having its origin in the centre of the system, which thence spread outwards. The king began to take scutages. At this point we must face some difficult questions.

Scutage between the king and the tenant in chief. In what, if any, sense is it true that the military service of the tenants in chief was commuted into scutage? The king’s ban goes forth summoning the host to a campaign. It says no word of scutage. Can the baron who owes twenty knights sit at home and say, “I will not go to the war; and if I do not go, no worse can befall me than that I shall have to pay scutage for my twenty fees, and this indeed will be no heavy burden, for I shall be entitled to take a scutage from the knights whom I have enfeoffed”—can the baron say this? Even if he can, we must notice that his self-interested calculations involve one unknown quantity. It may be that on some occasions the king really did give the baron an option between leading his knights to battle and paying some fixed sum. But such was not the ordinary course, at all events in the thirteenth century. The rate at which the scutage was to be levied was not determined until after the defaulters had committed their defaults and the campaign was over; the baron therefore who stayed at home did not know whether he would have to pay twenty marks, or twenty pounds, or forty pounds. But as a matter of fact, we find that in Henry III.’s day and Edward I.’s the tenant in chief who does not obey the summons must pay far more than the scutage; he must pay a heavy fine. No option has been given him; he has been disobedient; in strictness of law he has probably forfeited his land; he must make the best terms that he can with the king. Thus in respect of the campaign of 1230, a scutage of three marks (£2) was imposed upon the knight’s fee; but the Abbot of Evesham had to pay for his 4½ fees, not £9, but £20; the Abbot of Pershore for his 2 fees, not £4, but £10; the Abbot of Westminster for his 15 fees, not 45 marks, but 100 marks.116 In Edward I.’s day the fine for default is an utterly different thing from the scutage; in 1304 he announces that he will take but moderate fines from ecclesiastics and women, if they prefer to pay money rather than send warriors.117 We hear of such fines as £20 on the fee when the scutage is but £2 on the fee.118 Furthermore it seems evident that if an option had been given between personal service and scutage, every one would have preferred the latter and the king would have been a sad loser. Perhaps it is not absolutely impossible that Henry II. when he took two marks by way of scutage from each fee, took a sum which would pay a knight for forty days; in other words, that he could hire knights for eightpence a day.119 But while the rate of scutage never exceeded £2 on the fee, the price of knights seems to have risen very rapidly as the standard of military equipment was raised and the value of money fell. In 1198 the Abbot of St. Edmunds hired knights for Normandy at the rate of three shillings a day.120 In 1257 the Abbot of St. Albans put into the field an equivalent for his due contingent of six knights, by hiring two knights and eight esquires, and this cost him hard upon a hundred marks, while, as between his various tenants, the rule seems to have been that a knight, who was bound to serve, required two shillings a day for his expenses.121 At about the same date the knights of Ramsey received four shillings a day from their fellow tenants.122 We may be sure that the king did not take from the defaulting baron less than the market value of his military service.

The tenant in chief’s service cannot be discharged by scutage.Thus, so soon as our records become abundant, it seems plain that the tenant in chief has no option between providing his proper contingent of armed men and paying a scutage. The only choice that is left to him is that between obeying the king’s call and bearing whatever fine the barons of the exchequer may inflict upon him for his disobedience. Therefore it seems untrue to say that as between him and the king there is any “commutation of military service,” and indeed for a moment we may fail to see that the king has any interest in a scutage. If he holds himself strictly bound by principles that are purely feudal, the scutage should be nothing to him. From his immediate tenant he will get either military service or a heavy fine, and we may think that the rate of scutage will only determine the amount that can be extracted from the undertenants by lords who have done their service or paid their fines. But this is not so.

The scutage of undertenants.We must speak with great diffidence about this matter, for it has never yet been thoroughly examined, and we are by no means sure that all scutages were collected on the same principle. But from the first the king seems to have asserted his right to collect a scutage from the “tenant in demesne” who holds his land by knight’s service. There are two conflicting elements in the impost; it is in part the equivalent for a feudal, a tenurial service; it is in part a royal tax. The king will regard it now as the one, and now as the other, as suits him best. He refuses to be a mere lord of lords; he is also a king of subjects. The undertenant of a mesne lord, if he owes military service, owes a service that is to be done for the king; the king will, if this seems profitable, deal directly with him and excuse him from service on his paying money. And so in the thirteenth century the king, while he is exacting military service or fines from his tenants in chief, will also collect scutage from their military tenants. Theoretically he is not entitled to be paid for the same thing twice over. If a baron has either produced the requisite number of knights or compounded for his breach of contract, it is he and not the king who ought to receive scutage; in the one case he ought to get a scutage from any military tenants of his who have disobeyed his call to arms, in the other all his military tenants may have to pay, though he has not given them a chance of going to the war in person. That this ought to be so, seems to be admitted. Such a baron, having proved that he fulfilled his contract or paid his fine, will have a royal writ de scutagio habendo, whereby the sheriff will be ordered to cause him to have the scutage due from his tenants. Still, before he can get his scutage, he has to obtain something that the king is apt to treat as a favour. Meanwhile the sheriffs will be taking scutage for the king’s use from those who are in occupation of lands on which military service is incumbent, and leaving the various persons who are interested in those lands to settle the incidence of the burden as best they may. What comes into the king’s hands generally stays there. But further, in Henry III.’s time, the barons, assuming to act on behalf of the whole community, will on occasion grant to the king a scutage in respect of some military expedition that has taken place, and the meaning of this, at least in some instances, seems to be that in response to the king’s demands, they make over to him the right to collect and to keep the scutages due from their undertenants, scutages which the feudal principle would have brought into their own coffers.123 A national tax is imposed which the undertenants pay to the king. Much will remain obscure until the exchequer rolls have been carefully analyzed; but this at least seems clear, that the tenant in chief’s duty of providing an armed force is not commuted into a duty of paying scutage. Indeed the demand conceded by the Charter of 1215, namely, that no scutage be imposed without the common counsel of the realm, would be barely intelligible, if John had merely been giving his tenants in chief an option between furnishing the due tale of warriors and paying two marks for every fee.124

The military subtenants.We must now turn to a simple case and ask a simple question. What was the duty of a man who held by knight’s service of a mesne lord? We will suppose him to hold a single knight’s fee. In the days before scutage his duty probably was to serve in person if summoned by his lord to the king’s host; only with a good excuse might he send a substitute;125 but women and ecclesiastics would do their service by able-bodied representatives. Failure to perform this duty would be punished by a forfeiture of the tenement.126 But the practice of taking scutages seems to have set up a change, and how far that change went it is hard to decide. The knights began to allege that they were not bound to serve, but were only bound to pay a scutage, and only to pay a scutage when their lords had obtained from the king permission to levy it.127 It would further seem that many of them made good this assertion by steady perseverance. The lords were often compelled to hire soldiers because their knights—their knights so called, for many a tenant by knight’s service was in habit but a yeoman—would not fight. It would even seem that the tenants as a body got the better in the struggle, and established the rule that if they did not choose to serve, no worse could happen to them, than to be compelled to pay a scutage at the rate fixed by royal decree, a sum much less than they would have spent had they hired substitutes to fill their places. In short, “tenure by knight’s service” of a mesne lord, becomes first in fact, and then in law, “tenure by escuage.”128

Tenure by escuage.The stages of this process we cannot trace distinctly, but it was closely connected with the gradual decline and fall of the feudal courts. The lord who kept an efficient court of and for his military tenants might in early days enforce a forfeiture of the tenement for default of service; but the king’s court seems to have given him little or no assistance, and by degrees the remedies afforded by the royal tribunal became the standard of English law.129 The process must have been hastened by the subdivision of knights’ fees. We come across persons who hold no more than aliquot parts of fees; we find them even in what we may call the primary circle of feudalism, the circle of tenants in chief; they are common in the secondary circle. Sometimes a fee preserves a notional integrity though it has become divided into aliquot parts by subinfeudation or by partition among co-heiresses. The Abbot of St. Albans confessed to holding six scuta or knights’ fees. Each of these scuta was divided among several tenants holding of the abbot. When the king summoned his host, the various tenants of each scutum had to meet and provide a knight; sometimes they did this by hiring a knight, or two serjeants; sometimes they elected one of their number to serve and contributed towards his expenses.130 But we soon come upon small fractional parts, the twentieth part or the fortieth part, of fees, which fees have no longer any existence as integral wholes. Such fractions could hardly have come into being but for the practice of taking a scutage in lieu of personal service, and the tenant’s obligation is often expressed in merely pecuniary terms; the charter of feoffment says, not that he is to hold the fortieth part of a knight’s fee, but that when scutage is levied at the rate of 40 shillings on the fee he is to pay a shilling.131 When the holder of a knight’s fee has cut up a great part of it into little tenements each owing him some small amount of scutage, the understanding probably is that he is to do, or to provide, the requisite military service, and is then to take scutage from his tenants. All this must have tended to change the true nature of the obligation even of those tenants who held integral fees. If to hold the fortieth part of a fee merely meant that the tenant had to pay one shilling when a scutage of two pounds per fee was exacted, the tenant of a whole fee would easily come to the conclusion that a payment of forty shillings would discharge his obligation. Thus a permanent commutation into money of the personal service due from the subvassals seems to have taken place.132

The lord’s right to scutage.What is more, the right of a mesne lord to take scutage seems hardly to have been regarded, at least in the thirteenth century, as a right given by the common law. A lord who had done his service, or made fine for not doing it, could with some trouble to himself obtain a writ de scutagio habendo, which ordered the sheriff to collect for him the scutage from his knights’ fees.133 The king is said to grant to the lords their scutage; until the king has fixed the amount there is nothing that they can collect, and few if any of them attempted to collect it without obtaining the king’s writs. Indeed it would seem that, at least in Henry III.’s day, they had no right to collect it. If they did not obtain a grant of scutage from the king, then the king himself took the scutage from their tenants for his own use.134 As already said, there is in scutage an element of royal and national taxation which is incompatible with purely feudal principles.

Service instead of scutage.Whether the tenant of a mesne lord could insist upon his right to do service in the army instead of paying scutage is a question that we are absolved from discussing, for perhaps it was never raised.135 But as regards that duty of “castle-guard” which was a common incident of military tenure, the Great Charter lays down the rule that, if the tenant is willing to do the service in person, he cannot be compelled to pay money instead of doing it.136 However, in the course of the thirteenth century this duty also seems to have been very generally commuted for money payments.

Reduction in the number of knights’ fees.One more exceedingly obscure process must be noticed. Somehow or another in the second half of the thirteenth century the tenants in chief succeeded in effecting a very large reduction in the number of fees for which they answered to the king.137 When, for example, Edward I. called out the feudal host in 1277, his ecclesiastical barons, who, according to the reckoning of the twelfth century, were holding about 784 fees, would account, and were suffered to account, for but little more than 100, while some 13 knights and 35 serjeants—two serjeants being an equivalent for one knight— were all the warriors that the king could obtain from the lands held by the churches. The Archbishop of York had reduced his debt from twenty knights to five, the Bishop of Ely from forty to six, the Abbot of Peterborough from sixty to five. The lay barons seem to have done much the same. Humphry de Bohun offers three knights as due from his earldom of Essex; Gilbert of Clare, Earl of Gloucester and Hertford, offers ten knights, with a promise that he will send more if it be found that more are due. While, however, the lay barons will generally send as many men as they professedly owe, the prelates do not even produce the very small contingents which they acknowledge to be due. Now these magnates were not cheating the king, nor endeavouring to cheat him. It was well known in the exchequer, notorious throughout Cambridgeshire,138 that the Bishop of Ely, who would confess to but six fees, had forty at the least. The king was not deceived. The bishop, having sent no knights at all, had to pay a fine of 240 marks, that is, 40 marks for each of the six fees. Some of the prelates, we are told, had to pay as much as 50 marks for every fee,139 and yet the scutage for this war was but two pounds, that is, three marks, on the fee. The reduction in the nominal amount of fees for which the baron is compelled to answer is accompanied by an at least proportional increase of the amount that he pays in respect of every fee.

Meaning of the change.This change seems to tell us three things. In the first place, it was impossible for the prelate to get military service out of his military tenants. The practice of subinfeudation, fostered by the king’s court, had ruined the old system. His fees were now split up into small fractions, and they were in the hands of yeomen and small squires. Secondly, he was willing to pay a large sum rather than hire knights. The knight with his elaborate panoply had become a costly article. In the third place, the king by this time wanted money more than he wanted knights; if he had money, he could get soldiers of all sorts and kinds as pleased him best. And so he seems to have winked at the introduction of a new terminology, for really there was little else that was new. Provided that the Bishop of Ely paid him £160 for his Welsh campaign, he did not care whether this was called a fine of six marks for each of forty fees, or a fine of forty marks for each of six fees; while the bishop, who would hardly find six tenants willing to fight, prefers the new set of phrases. But then, our already confused system is further confounded, for the bishop, who has but six fees for the king’s service when the call is for warriors or a fine, will assuredly assert that he has, as of old, forty fees when the time comes for him to take a scutage from his tenants, and in this way he may, at the rate of three marks per fee, recover, if he is lucky and persistent, about half the sum that he has had to pay to the king. But in truth, the whole system is becoming obsolete. If tenure by knight’s service had been abolished in 1300, the kings of the subsequent ages would have been deprived of the large revenue that they drew from wardships, marriages and so forth; really they would have lost little else.140

Military service combined with other services.We have next to observe that a lord when enfeoffing a tenant was free to impose other services in addition to that military service which was incumbent on the land. Suppose that B holds a knight’s fee of A; B may enfeoff C of the fee, stipulating that C shall do the military service and also pay him a rent. Perhaps it was usual that a tenant who held a whole knight’s fee should have no serious service to perform in addition to the military service, though, in such a case as we have put, B would often stipulate for some honorary rent, a pair of spurs, a falcon, or the like. But when we get among the holders of small plots, we constantly find that they must pay scutage while they also owe substantial rents.141 A few entries on the Oxfordshire Hundred Roll will illustrate this. At Rycote, Adam Stanford holds the whole vill of the Earl of Oxford for half a knight’s fee; he has a number of freeholders holding small plots; they pay substantial rents and “owe scutage”; one has a virgate, pays 7 s. 6 d. a year and owes scutage; another holds three acres for the rent of a penny and owes scutage.142 Often it is said of the small freeholders that beside their rent they owe royal or forinsec service (debent regale, debent forinsecum)143 and, at least in general, this seems to mean that they pay scutage and are nominally tenants by knight’s service; for Bracton’s rule is clear, namely, that if the tenant owes but one hap’orth of scutage (licet ad unum obolum), his tenure is military, and this rule is fully borne out by pleadings and decisions.144 This point is important:—the division between tenants in socage and tenants by knight’s service does not correspond, save in the roughest manner, to any political, social or economic division. The small yeoman often holds his little tenement by a tenure which is nominally and legally the same tenure as that by which the knight holds his manor.145

Castle-guard.With the duty of attending the king in his wars was often coupled the duty of helping to garrison his castles; more rarely the latter duty appears without the former. The knights of the Abbey of Abingdon were bound to guard the king’s castle of Windsor,146 the knights of the Abbey of Peterborough his castle of Rockingham,147 the knights of the Abbey of St. Edmund his castle of Norwich. In Henry I.’s day the Bishop of Ely purchased for his knights the privilege of doing ward within the isle instead of at Norwich.148 Such service was well known in Normandy149 and France,150 and is mentioned in Domesday Book.151 The forty or fifty knights of St. Edmunds were divided into four or five troops (constabiliae), each of which had to guard Norwich castle for three months in the year.152 Often a tenement owed “ward” to a far-off castle; thus in Cambridgeshire were lands held of the Count of Aumâle which owed ward to his castle of Craven,153 and lands held of the Count of Britanny which owed ward to his castle of Richmond.154 We speak as though these castles belonged to their tenants in chief; but the kings were wont to regard all castles as in a sense their own, and the duty of castle-guard, like the duty of service in the host, though due to the lord, was to be done for the king. Before the end of the thirteenth century, however, payments in money had usually taken the place of garrison duty.155

Thegnage and drengage.While the military system of feudalism is thus falling into decay there still may be found in the north of England scattered traces of an older military system. The Norman milites are already refusing to do the service to which their tenure binds them, but there are still in the ancient kingdom of Northumbria thegns holding in thegnage, drengs holding in drengage, thegns who are nominally bound to do the king’s “útware.” Were these tenures military or were they not? That was a puzzle for the lawyers. They had some features akin to tenure by knight’s service, for thegns and drengs had been summoned to fight John’s battles in Normandy; in other respects they were not unlike the serjeanties; they were sometimes burdened with services which elsewhere were considered as marks of villeinage; finally, as it would seem, they were brought under the heading of free socage. In truth they were older than the lawyers’ classification, older than the Norman Conquest.156

Tenure by barony.Above we have made mention of tenure by barony and passed it by with few words; and few seem needed. True, we may find it said of a man, not only that he holds a barony (tenet baroniam), but also that he holds by barony (tenet per baroniam), and this may look as though tenure by barony should be accounted as one of the modes of tenure.157 But so far as the land law is concerned there seems no difference between tenure by barony and tenure by knight’s service, save in one point, namely, the amount of the relief, about which we shall speak below. So far as regards the service due from the tenant, the barony is but an aggregate of knights’ fees. There is no amount of military service that is due from a tenant by barony as such; but his barony consists of knights’ fees; if it consists of twenty knights’ fees he is answerable for the service of twenty knights, if it consists of fifty knights’ fees, then he must produce fifty. And so, again, with the various incidents of tenure, aids, wardship, marriage, escheat, all save relief; there seem to be no special rules for tenure by barony or for the tenure of a barony; it is but tenure by knight’s service of a certain number of knights’ fees, unless indeed it be—and in some cases it is—tenure by grand serjeanty. The fact that a certain mass of lands is deemed a barony has some few legal consequences of a subordinate kind. Always or generally some castle or some manor is regarded as the head of the barony, and it would seem that for some fiscal and administrative purposes the whole barony was treated as lying in the county that contained its head. Then, again, a widow is not to be endowed with the caput baroniae, and the caput baroniae is not to be partitioned among co-heiresses.158 Such rules as these may necessitate an inquiry whether a certain manor is the head of a barony or a single knight’s fee held by a separate title;159 but they will not justify us in co-ordinating tenure by barony with the other tenures, such as knight’s service and serjeanty.

The baronage.Of course, however, “barony” cannot be treated as a mere matter of land tenure. The barons, together with the earls, have become an estate of the realm, and to make a man a member of this estate it is not sufficient that he should be a military tenant in chief of the crown. A line has been drawn which cuts the body of such tenants into two classes. The question by what means and in accordance with what principle that line was drawn has been much debated. We shall probably be near the truth if, in accordance with recent writers, we regard the distinction as one that is gradually introduced by practice and has no precise theory behind it.160 The heterogeneous mass of military tenants in chief could not hold together as an estate of the realm. The greater men dealt directly with the king, paid their dues directly to the exchequer, brought their retainers to the host under their own banners, were summoned to do suit in the king’s court by writs directed to them by name; the smaller men dealt with the sheriff, paid their dues to him, fought under his banner, were summoned through him and by general writs. Then two rules emphasized the distinction:—the knight’s fee paid a fixed relief of 100 shillings, the baron made the best bargain he could for his barony; the practice of summoning the greater people by name, the smaller by general writs was consecrated by the charter of 1215. The greater people are maiores barones, or simply barones, the lesser are for a while barones secundae dignitatis, and then lose the title altogether; the estates of the greater people are baronies, those of the smaller are not; but the line between great and small has been drawn in a rough empirical way and is not the outcome of any precise principle. The summons to court, the political status of the baron, we have not here to consider, while, as regards the land law, it is to all appearance the relief, and the relief only, that distinguishes the barony from an aggregate of knights’ fees, or makes it necessary for us to speak of tenure by barony.

Escheated honours.When, however, a certain territory had been recognized as a barony or an honour, this name stuck to it through all its fortunes. Honours and baronies were very apt to fall into the hands of the king by way of forfeiture or escheat owing to the tenant’s treason. When this happened they still kept their names the honour of Wallingford might have escheated to the king, but it was still the honour of Wallingford and did not lose its identity in the general mass of royal rights. Nor was this a mere matter of words. In the first place, the escheated honour would probably come out of the king’s hands; the general expectation was that the king would not long keep it to himself, but would restore it to the heir of its old tenant, or use it for the endowment of some new family, or make it an appanage for a cadet of the royal house.161 But the continued existence of the honour had a more definite, and a legal meaning. Normally, as we shall see hereafter, the military tenant in chief of the king was subject to certain exceptional burdens from which the tenants of mesne lords were free. A tenant holds of the lord of the honour of Boulogne: that honour escheats to the king; the tenant will now hold immediately of the king; but is he to be subject to the peculiar burdens which are generally incident to tenancy in chief? No, that would be unfair, it would be changing the terms of his tenure. This was recognized by the practice of the exchequer under Henry II.,162 and the rule was confirmed by the Great Charter.163 Thus it becomes necessary to distinguish between those tenants in chief who are conceived as having always held immediately of the king, and those who hold of the king merely because a mesne lordship has escheated: in other words, between those who hold of the king as of his crown (ut de corona) and those who hold of him as of an escheated honour (ut de escaeta, ut de honore, ut de baronia).164 On the other hand, the relief for a barony having been fixed, two baronies do not become one merely because they are held by one person; the honour of Clare, the honour of Gloucester, the honour of St. Hilary and a moiety of Earl Giffard’s honour meet in the hands of Earl Gilbert; he has to pay for his three and a half honours a relief of £350.165 An honour or barony is thus regarded as a mass of lands which from of old have been held by a single title.166

§ 4.

Serjeanty

Difficulty of defining serjeanty.The idea of a serjeanty as conceived in the thirteenth century is not easily defined. Here as elsewhere we find several different classes of men grouped together under one heading so that the bond that connects them is slight; also we find it difficult to mark off serjeanty from knight’s service on the one hand and socage on the other. The tests suggested by Littleton are inapplicable to the documents of this age.167 We cannot say that the duty of serjeanty must be performed by the tenant in his proper person, we cannot say that “petty serjeanty” has necessarily any connexion with war, or that one cannot hold by serjeanty of a mesne lord, or that petty serjeanty is “but socage in effect.”168 Even the remark that “ serjeantia in Latin is the same as servitium ”169 is not strictly true.

Serjeanty and service.Here indeed lies the difficulty:—while every tenure implies a service (servitium), it is not every tenure that is a serjeanty (seriantia, serianteria): every tenant owes service, but not every tenant is a servant or serjeant (serviens), still less of course is every tenant a servus. A single Latin stock has thrown out various branches; the whole of medieval society seems held together by the twigs of those branches. Here we have to deal with one special group of derivative words, not forgetting that it is connected with other groups.170

Types of serjeanty owed by the king’s tenants in chief.We may begin by casting our eye over the various “serjeanties” known in the thirteenth century. First we see those forms of service which are the typical “grand serjeanties” of later days, “as to carry the banner of the king or his lance, or to lead his army, or to be his marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of the chamberlains of the receipt of his exchequer.”171 Some of the highest offices of the realm have become hereditary; the great officers are conceived to hold their lands by the service or serjeanty of filling those offices. It is so with the offices of the king’s steward or seneschal, marshal, constable, chamberlain; and, though the real work of governing the realm has fallen to another set of ministers whose offices are not hereditary, to the king’s justiciar, chancellor and treasurer, still the marshal and constable have serious duties to perform.172 Many of the less exalted offices of the king’s household have become hereditary serjeanties; there are many men holding by serjeanties to be done in the kitchen, the larder and the pantry.173 Even some of the offices which have to do with national business, with the finance of the realm, have become hereditary; there are already hereditary chamberlains of the exchequer who do their service by deputy.174 We observe that all these offices, if we regard only their titles, have something menial about them, in the old and proper sense of the word “menial”; their duties are servitia mansionalia, they are connected with the king’s household. It may be long since the predecessors in title of these men really cooked the king’s dinner or groomed the king’s horses: but they glory in titles which imply, or have implied, that their duties are of this menial kind; nor is it always easy to say when or whether the duty has become honorary. When the Conqueror gives half a hide of land in Gloucestershire to his cook,175 it were bold to say that this tenant did not really roast and boil; and what shall we say of the cook of the Count of Boulogne?176 Then scattered about England we find many men who are said to hold by serjeanty and are bound by their tenure to do other services, which are not so distinctly menial, that is to say, are not so closely connected with the king’s household. They are bound to carry the king’s letters, to act as the king’s summoners when the barons of the neighbourhood are to be summoned, to aid in conveying the king’s treasure from place to place, or the like. Again, and this is very common, theirs is some serjeanty of the forest, they are chief foresters, or under foresters. The king’s sport has given rise to numerous serjeanties; men are bound by tenure to keep hounds and hawks for him, to find arrows for him when he goes a-shooting; and we cannot say that these are honorary or particularly honourable services: to find a truss of straw for the king’s outer chamber when he stays at Cambridge, this also is a serjeanty.177 The carpenter, the mason, or the gardener who holds land in the neighbourhood of some royal castle in return for his work holds a serjeanty.178 But, again, many serjeanties are connected with warfare. The commonest of all is that of finding a servant or serjeant (servientem) to do duty as a soldier in the king’s army. Sometimes he is to be a foot-soldier, sometimes a horse-soldier (servientem peditem, servientem equitem); often the nature of the arms that he is to bear is prescribed; often he is bound to serve for forty days and no more, sometimes only for a shorter period; often to serve only against the Welsh, sometimes to serve only within his own county. It would be a mistake to think that tenure supplied the king only with knights or fully armed horsemen; it supplied him also with a force, though probably a small force, of light horse-men and infantry, of bowmen and cross-bowmen. It supplied him also with captains and standard-bearers for the national militia; men were bound by their tenure to lead the infantry of particular hundreds.179 It supplied him also with the means of military transport, with a baggage train; few serjeanties seem commoner than that of sending a “serjeant” with horse, sack and buckle for the carriage of armour and the like.180 It supplied him, to some small degree, with munitions of war; if one was bound by tenure to find lances, arrows or knives, this was reckoned a serjeanty.

Serjeanty of mesne lords.A man may well hold by serjeanty of a mesne lord. Bracton speaks clearly on this point. The tenant of a mesne lord may be enfeoffed by serjeanty, and the serjeanty may be one which concerns the lord, or one which concerns the king. Thus, for example, he may be enfeoffed as a “rodknight” bound to ride with his lord, or he may be bound to hold the lord’s pleas, that is, to act as president in the lord’s court, or to carry the lord’s letters, or to feed his hounds, or to find bows and arrows, or to carry them: we cannot enumerate the various possible serjeanties of this class. But there are, says Bracton, other serjeanties which concern the king and the defence of the realm, even though the tenant holds of a mesne lord; as if he be enfeoffed by the serjeanty of finding so many horse- or foot-soldiers with armour of such or such a kind, or of finding a man with horse, sack and buckle for service in the army.181

Types of serjeanty owed to mesne lords.All this is fully borne out by numerous examples. The grand serjeanties of the king’s household were represented in the economy of lower lords. Thus John of Fletton held land at Fletton in Huntingdonshire by the service of being steward in the abbot’s hall at Peterborough;182 at Cottesford in Oxfordshire John White is bound by tenure to hold the lord’s court twice a year;183 in the same county a tenant of the Earl of Lincoln must place the last dish before the earl, and shall have a rod from the earl like other free serjeants.184 The Abbot of Gloucester has tenants who spread his table, who hold towels and pour water on his hands.185 In the twelfth century the stewardship of the Abbey of St. Edmunds was hereditary in the family of Hastings, but was executed by deputy.186 On the whole, however, the prelates and barons seem to have followed the policy of their royal master and seldom permitted substantial power to lapse into the hands of hereditary officers; the high steward of a monastery, like the high steward of the realm, was a man for pageants rather than for business.187 Still such serjeanties existed. The service of carrying the lord’s letters was not uncommon and may have been very useful;188 the service of looking after the lord’s wood was reckoned a serjeanty.189 In various parts of England we find a considerable class of tenants bound to go a-riding with their lords or on their lord’s errands, and doubtless, as Bracton suggests, we have here the radchenistres and radmanni of Domesday Book;190 on some estates they are known as “esquires,” and their tenure is a “serjeanty of esquiry.”191

Military serjeanties held of mesne lords.But again, there may, as Bracton says, be warlike service to be done. A tenant, for example, of the Abbot of Ramsey is bound to find horse, sumpter saddle, sack and fastening pin to carry the harness of the knights bound for the Welsh war;192 the prior of St. Botolph at Colchester is bound to the same service by mesne tenure.193 Again, the tenant may go to the war in his lord’s train to fight, not as a miles but as a serviens; Reginald de Bracy is bound by the service of serjeanty to follow William de Barentin as a serviens at William’s cost.194

Essence of serjeanty.Now it may be impossible to bring all these very miscellaneous tenures under one definition which shall include them, but exclude knight’s service and socage. However, the central notion seems what we may call “servantship”; we cannot say “service,” for that word is used to cover every possible return which one man can make to another for the right of enjoying land. Obviously in many cases the tenant by serjeanty not only owes “service” in this large sense, but is a servant (serviens); he is steward, marshal, constable, chamberlain, usher, cook, forester, falconer, dog keeper, messenger, esquire; he is more or less of a menial servant bound to obey orders within the scope of his employment. Modern efforts to define a “servant” may illustrate old difficulties as to the limits of “serjeanty”; it may be hard to draw the line between the duty of habitually looking after the king’s bed-chamber and that of providing him with litter when he comes to a particular manor. But the notion of servantship, free servantship, as opposed to any form of serfdom, seems to be the notion which brings the various serjeanties under one class name, and it points to one of the various sources of what in the largest sense of the term we call the feudal system. One of the tributaries which swells the feudal stream is that of menial service; it meets and mingles with other streams, and in England the intermixture is soon very perfect; still we can see that serjeanty has come from one quarter, knight’s service from another, socage from yet a third, and we may understand how, but for the unifying, generalizing action of our king’s court, a special law of serjeanty might have grown up, distinct from the ordinary law of land tenure.195

As regards the military serjeanties we must remember that in the language of military affairs serviens had acquired a distinct meaning.The serjeants in the army. An army is largely made up of milites and servientes, of fully armed horsemen, and of men who, whether they serve on foot or on horse, have not the full knightly panoply.196 Now when a tenant by serjeanty is bound to go to the war as a serviens with horse, purpoint, iron cap and lance, the difference between his tenure and knight’s service seems to resolve itself into a mere difference between one kind of armour and another, or one position in the army and another; and it is possible that a certain ambiguity in the word serviens, which will stand for servant, and will stand for light armed soldier, may have attracted within the sphere of serjeanty certain tenures which had about them no strong trace of what we have called “servantship.” Still originally the servientes of the army were so called because they were attendants on the milites, whose shields they carried, and whose esquires they were—for the esquire (scutifer, armiger) of those times was one who carried the shield or arms of his lord. Thus by one way or another we come back to the idea of “servantship” as the core of serjeanty.197

Serjeanty in Domesday Book.Looking back towards the Norman Conquest we run no risk in seeing the predecessors of these tenants by serjeanty in the servientes of Domesday Book. Near the end of the survey of a county we sometimes meet with a special section devoted to Servientes Regis. Thus in Wiltshire after the Terra Tainorum Regis comes the Terra Servientium Regis;198 it is so in Dorsetshire;199 in Devonshire and Leicestershire the Servientes Regis have a special section;200 in Oxfordshire we find Terra Minis-trorum Regis,201 and when elsewhere we meet with Famuli Regis202 we may suppose that this is but another name for the Servientes and Ministri. We can tell something of their offices. Among the Wiltshire Servientes are three chamberlains (camerarii), a hoarder (granetarius) and a cross-bowman (arbalistarius); elsewhere are an archer, an usher, a goldsmith, a baker, a bedchamber man; near the end of the survey of Hampshire we find a treasurer, two chamberlains, a hunter, a marshal, a physician and a barber holding in chief of the king.203 In some cases it is possible to trace the estates of these persons until we find them definitely held by serjeanty. Again, there can be little risk in finding the ancestors in law of Bracton’s rodknightes204 and the Abbot of Ramsey’s ridemanni in the radchenistres and radmanni of Domesday Book. It is true that in the western counties these radchenistres are occasionally found in large groups; there may be even twenty of them on a manor;205 but in what was for Bracton the leading case on serjeanty the abbess of Barking asserted that she had full thirty tenants on one manor bound to ride about with her wherever she would.206 However, the makers of Domesday Book were not concerned to specify the terms on which the tenants, especially the tenants of mesne lords, held their lands; of serjeanties we read little just as we read little of knightly service. So soon, however, as any attempt is made to classify tenures, the serjeanties appear in a class by themselves. Glanvill, after defining the relief payable for knights’ fees and for socage tenements, adds that as to baronies nothing has been definitely settled, the amount of the relief being at the will and mercy of the king; the same, he says, is true of serjeanties.207 In 1198 the distinction was enforced by the great fiscal measure of that year; from the general land tax the serianteriae were excepted, but they were to be valued and the servientes who held them were to be summoned to meet the king at Westminster to hear and do his bidding.208

Serjeanty and other tenures.Other distinctions appear in course of time. Even in Bracton’s day the amount of the relief for a serjeanty was not yet fixed; it was to be “reasonable” but no more than this could be said.209 In later days we find it fixed at one year’s value of the land; but how or when this definition was arrived at we do not know.210 That the serjeant’s relief remains uncertain long after the reliefs of barons, knights and socagers are fixed is another fact which points to the peculiar nature of the relationship which had been involved in the tenure. It was not the mere relation between lord and tenant, or between lord and man, but was also the relation between master and servant, and, though a feoffment had been made to the tenant and his heirs, the law was slow to dictate the terms upon which the lord must receive the heir into his service. Again, we find that a tenement held by serjeanty is treated as inalienable and impartible. As regards alienation we shall be better able to speak hereafter, but will premise this much, that the king is rigorously enforcing the rule that his serjeants cannot without his leave alienate their land, even by way of subinfeudation, at a time when he is not, or is not systematically, enforcing the same rule against his other tenants. We have some proof that so late as John’s reign it was thought that a serjeanty could not be partitioned among co-heiresses; the eldest daughter would take the whole:211 —this also is an intelligible rule if we have regard to the “serviential” character of the tenure; a serjeanty must not be “lacerated.”212 As to the wardship and marriage of tenants by serjeanty there was much dispute, and in course of time a line was drawn between what were called “grand” and what were called “petty” serjeanties. To this matter we must return; but by means of the rules to which allusion has here been made, tenure by serjeanty was kept apart from tenure by knight’s service on the one hand and tenure by socage on the other, and even in the middle of the thirteenth century it still had an importance which is but faintly represented by the well-known sections of Littleton’s book.

§ 5.

Socage

Socage.Any tenure that on the one hand is free and on the other hand is not spiritual, nor military nor “serviential,” is called tenure in free socage:—to this result lawyers are gradually coming. Obviously therefore this term socage will cover a large field; it will include various relationships between men, which, if we regard their social or economic or even their purely legal aspects, seem very different from each other. We may look at a few typical cases.

Types of socage.(a) The service which the tenant owes to his lord may be merely nominal: he has no rent to pay or has to give but a rose every year just by way of showing that the tenure exists. Such a case may be the effect of one of various causes. It may originate in what we should call a family settlement: a landowner sometimes provides for a daughter or a younger son by a gift of land to be held by a nominal service. Or again, the gift may be a reward to some dependant for past services, or a retaining fee for services to be rendered hereafter, which services however are not defined and are not legally exigible. Or again, there may well have been what in truth was a sale of the land: in return for a gross sum a landowner has created a nominal tenure. To have put the purchaser in the vendor’s place might have been difficult, perhaps impossible; so the purchaser is made tenant to the vendor at an insignificant rent.

(b) Such cases gradually shade off into others in which a substantial rent has been reserved. We pass through the very numerous instances in which the lord is to receive yearly some small article of luxury, a sparrowhawk, a pair of gloves, a pair of gilt spurs, a pound of pepper or of incense or of wax, to other cases in which the rent, if we cannot call it a “rack rent,” is “the best rent that can reasonably be gotten.” We thus enter the sphere of commerce, of rents fixed by supply and demand.

Such tenures as these may be found in every zone of the territorial system. The tenant may be holding of the king in chief; the king has, as we should say, granted perpetual leases at substantial rents of some of his manors, the lessees being sometimes lay barons, sometimes religious houses.213 Again, from the Conquest onward, to say nothing of an earlier time, very great men have not thought it beneath them to hold church lands at easy rents.214 It is an accusation common in monastic annals that the abbots of the Norman time dissipated the lands of their houses by improvident grants to their foreign kinsmen or by taking fines instead of reserving adequate rents. In such cases these tenants in socage may have other tenants in socage below them, who will pay them heavier rents. Ultimately we come to the actual occupant of the soil, whose rent will in many cases represent the best offer that his landlord could obtain for the land. Occasionally he may be paying more for the land than can be got from the villeins of the same village.

(c) Sometimes we find in charters of feoffment that the feoffee, besides paying rent, is to do or get done a certain amount of agricultural labour on his lord’s land, so much ploughing, so much reaping. The feoffee may be a man of mark, an abbot, a baron, who will have many tenants under him and will never put his hand to the plough.215 These cases are of importance because they seem to be the channel by which the term socage gradually spreads itself.

(d) Finally, within a manor there often are tenants bound to pay divers dues in money and in kind and bound to do or get done a fixed quantity of agricultural service for their lords. Their tenure is often regarded as very old; often they have no charters which express its terms.216 Hereafter we shall see that it is not always easy to mark the exact line which separates them from the tenants in villeinage among whom they live and along with whom they labour for the lord’s profit. Some of them are known as free sokemen (sokemanni, sochemanni); but this name is not very common except on “the ancient demesne” of the crown. Of their position we must speak hereafter, for it can only be discussed in connexion with the unfree tenures.

Gradual extension of the term socage.Now to all appearance the term socage, a term not found in Normandy, has been extending itself upwards; a name appropriate to a class of cultivating peasants has begun to include the baron or prelate who holds land at a rent but is not burdened with military service. Of such a man it would seem natural to say that he holds at a rent (tenet ad censum), and for a century and more after the Norman Conquest it is rare to call his tenure socage. He is sometimes said to have feodum censuale;Fee farm. far more commonly he is said to hold “in fee farm.” This term has difficulties of its own, for it appears in many different guises; a feoffee is to hold in feofirma, in feufirmam, in fedfirmam,217in feudo firmam, in feudo firma,218ad firmam feodalem,219 but most commonly, in feodi firma. The Old English language had both of the words of which this term is compounded, both feoh (property) and feorm (rent);220 but so had the language of France, and in Norman documents the term may be found in various shapes, firmam fedium, feudifirmam.221 But, whatever may be the precise history of the phrase, to hold in fee farm means to hold heritably, perpetually, at a rent; the fee, the inheritance, is let to farm. This term long struggles to maintain its place by the side of socage; the victory of the latter is not perfect even in Bracton’s day; the complete merger of fee farm in socage is perhaps due to a statute of Edward I., though the way towards this end had long been prepared.222

Meaning of “socage.”As to the word socage, a discussion of it would open a series of difficult problems about the administration of justice in the days before the Conquest. These have been discussed elsewhere.223 We must here notice two points. Bracton believed—erroneously no doubt, but erroneous etymology is a force in the history of the law—that socage had to do with soc, the French word for a plough-share;224 tenants in socage therefore are essentially agriculturists, and the duty of ploughing the lord’s demesne is the central feature of socage. In the second place, if we turn to the true derivation, we come to much the same result; socage is at starting the tenure of those sokemen of whom we read in Domesday Book; socage is an abstract term which describes their condition. Gradually it has been extended and therefore attenuated until it is capable of expressing none but negative characteristics:—socage is a tenure which is not spiritual, not military, not serviential. No similar extension has been given to the word sokeman; in the thirteenth century many persons hold in socage who would be insulted were they called sokemen; for the sokemen are a humble, though it may be a well-to-do class.225

Socage in contrast to military tenure.That they have been a numerous class we may gather as from other evidence so from this, that socage becomes the one great standing contrast to military tenure, and, as the oppressive incidents of military tenure are developed, every man who would free his holding from the burdens of wardship and marriage is anxious to prove that he holds in socage. To gain this end he is full willing to sink somewhat of dignity; he will gladly hold by the peasant’s tenure when the most distinctive marks of that tenure are immunities— no scutage, no wardship, no marriage.226

Socage as the residuary tenure.Thus free socage, when that term has attained its full compass, appears as the great residuary tenure, if we may so speak; it is nonmilitary, non-serviential, non-elemosinary. If, however, we go back to the first half of the twelfth century, we begin to doubt whether we can strictly insist on the most characteristic of these negative attributes. The army is but gradually taking its new shape; the sokemen of the Abbot of Peterborough serve along with the knights.227 In Edward I.’s day the tradition among the Oxfordshire jurors was that the ancestors of many of the Bishop of Lincoln’s socage tenants were free sokemen or “quasi sokemen” who served the king in the war for forty days at their own cost with purpoints, lances and iron caps.228 It is not in the past that we must look for clear definitions.

Burgage.Tenure in burgage, if we examine but one specimen of it, may seem to differ in no essential from free socage.229 The service due from the tenant to his lord is very generally a mere money rent, though there may be a little ploughing or the like to be done. But if we thus isolate a single tenant from his fellows, the spirit of burgage escapes us. The tenant is, at least normally, a burgess, a member of a privileged community, which already aspires to become a municipal corporation. This is not the place in which to discuss the history of the boroughs, still we ought just to notice that tenure has been an important element in it. From a remote time there have been in the greater and older boroughs men who paid rents for their houses but did no other service. Their tenure becomes distinctive of the boroughs, and when in later days a manor is to become a borough, the abolition of labour services and the introduction of burgage tenure is one main feature of the process.230

Burgage and borough customs. Regarded merely as a tenure, the chief characteristic of burgage is its subjection to local custom. Other free tenures, socage for example, may be affected by local custom, but what is exceptional in their case is normal in the case of burgage. The lord has made over to the men of the borough his court and the profits of his court; very frequently a royal charter has conceded that actions for burgage tenements shall not be tried except in the court of the borough; thus local custom has room within which it can grow and is not liable to be set aside in favour of common law. It is chiefly within the domain of private law, it is about such matters as inheritance and dower, that the borough customs have their say. The point that most concerns us here is their tendency to treat the burgage tenement as an article of commerce; it is likened to a chattel; not only can it be disposed of by will, but “it can be sold like a chattel.”

One man may hold by many tenures.A man might hold of many different lords by many different tenures. This no one would deny; but some of the classical expositions of “the feudal system” and “the manorial system” are apt to make the texture of medieval society look simpler than really it was, and we think it part of our duty to insist that the facts which the lawyers of the thirteenth century had to bring within their theories were complicated. Therefore let us fix our eyes on one man. Sir Robert de Aguilon, and see what he held on the day of his death in 1286. He held lands at Greatham in Hampshire of the king at a rent of 18 s.; he held lands at Hoo in Kent of the Abbot of Reading at a money rent; he held lands at Crofton in Buckinghamshire of William de Say by some service that the jurors did not know; he held a manor in Norfolk of the Bishop of Norwich by the service of a sixth part of a knight’s fee and by castle-guard; he held a manor in Sussex of the Earl of Warenne by the service of one knight; he held a manor in Hertfordshire of the king in chief by the serjeanty of finding a foot-soldier for forty days; he held tenements in London of the king in chief by socage and could bequeath them as chattels.231 So we must not think that each man fills but one place in the legal structure of feudalism. In a remote past this may have been so; but it is not so in the age that defines the various tenures. Often enough the man who holds of the king in chief will hold also of other lords; he will hold by knight’s service, by serjeanty, in fee farm, in socage and in burgage.

§ 6.

Homage and Fealty

Homage and fealty.Very generally the mere bond of tenure is complicated with another bond, that of homage and fealty; the tenant either has done homage and sworn fealty, or is both entitled and compellable to perform these ceremonies. The right and the duty go together; in one particular case it may be the lord, in another it may be the tenant, who will desire that these solemnities should be observed, for each of them may thereby gain something.

Legal and extra-legal effects of homage.When we read what the law-books say of these matters, we feel that they are dealing with institutions, the real importance of which lies but partly within the field of law. The law of homage as administered, or even as tolerated, by the king’s court of the thirteenth century is but a pale reflection of moral sentiments which still are strong but have been stronger. Glanvill and Bracton seem to lower their voices to a religious whisper when they speak of homage; it is in this context that Glanvill introduces a word very rare in English legal documents, the antique word vassallus.232 The ceremony of homage is as solemn as ceremony can be. But when we ask for the effects of homage, we get on the one hand some rules of private law about warranty and so forth, rules which may seem to us of no great importance, and on the other hand some vague though impressive hints that these legal rules express but a small part of what is, or has been, the truth.

The ceremony of homage.The ceremony of homage (in some of the older books hominium, hominatio,233 but usually homagium) is much the same all Europe over.234 According to Bracton, the tenant puts his hands between the hands of the lord—this symbolical subjection seems from the first to have been the very essence of the transaction235 —and says: “I become your man of the tenement that I hold of you, and faith to you will bear of life and member and earthly worship [or, as some say, of body and chattels and earthly worship], and faith to you shall bear against all folk [some add, who can live and die], saving the faith that I owe to our lord the king.”236 Britton adds that the lord shall then kiss his tenant;237 Littleton adds that the lord sits, while the tenant kneels on both knees, ungirt and with his head uncovered; and these we may accept as ancient traits.238 Everything seems done to tell us that the man has come helpless to the lord and has been received into the lord’s protection.

The oath of fealty.Homage is “done,” fealty is “sworn,” and it is worthy of observation that the oath is conceived as less solemn than the symbolic act and can be exacted in many cases in which homage is not exigible. The tenant now stands up with his hand on the gospels and says: “Hear this my lord: I will bear faith to you of life and member, goods, chattels and earthly worship, so help me God and these holy gospels of God”; some add an express promise to do the service due for the tenement.239 Bracton does not here mention any saving clause for the faith due to the king; but doubtless this was added.240 The oath of fealty thus omits the words “I become your man,” a significant omission. Fealty, of course, is the Latin fidelitas; but it is interesting to notice that on manorial rolls written by clerks who were no great Latinists, the word becomes feodelitas or feoditas, so close is the connexion between faith and fee.

Liegeance.The forms that have here been given are those of liege homage and of fealty sworn to a liege lord. The word liege seems to mean simple, unconditional, though very likely at a quite early time a false derivation from the Latin ligare (to bind) began to obscure this.241 The man who has but one lord does unconditioned homage. If now he acquires a fee from another lord, his homage must be conditioned, he must save the faith that he owes to his first lord.242 If tenements held of several lords descend to one heir, his liege homage seems due either to the lord from whom he claims his principal dwelling-place— cuius residens et ligius est243 —or to that lord who made the oldest of those feoffments under which he claims.244 The person to whom liege homage is done is by no means necessarily the king; but the king has been insisting with ever greater success that there is a direct bond between him and every one of his subjects; the growth of national feeling has favoured this claim.245 Not only has he insisted that in every expression of homage or fealty to another there shall be a saving for the faith that is due to him,246 but he has insisted that every male of the age of twelve years shall take an oath of fealty to him and his heirs, an oath “to bear faith and loyalty of life and limb, of body and chattels and of earthly honour,” an oath which of course makes no reference to any tenement, an oath which promises a fealty so unconditioned that it becomes known as the oath of ligeance or allegiance (ligeantia).247 William the Conqueror, it would seem, had exacted, not only an oath of fealty, but an act of homage from all the considerable tenants of his kingdom, no matter whose men they were, for so we may fairly construe the words of the chronicler, “they bowed themselves and were this man’s men”;248 later kings as well as earlier had exacted the oath of fealty from their subjects in general. But this is a strong testimony to the force of vassalism. It suggests that an oath is necessary in order to constitute the relation between ruler and subject; it suggests that the mere omission of a saving clause might make it a man’s duty to follow his lord even against the king; it makes the relation between king and subject look like a mere copy of the relation between lord and vassal. This we can see even if we look back to the first days of incipient feudalism: “All shall swear in the name of the Lord fealty to King Edmund as a man ought to be faithful to his lord”;249 the obligation of man to lord is better known, more strongly felt, than the obligation of subject to king. At the accession of Edward I. the danger seems past, at least for a while; the feudal force seems to have well-nigh spent itself; but obviously homage and fealty, liege homage and liege fealty, have meant a great deal.

Vassalism in the Leges Henrici.In the Leges Henrici we may find the high-water-mark of English vassalism. Every man owes faith to his lord of life and limb and earthly worship, and must observe his lord’s command in all that is honourable and proper, saving the faith due to God and the ruler of the land; but theft, treason, murder, or anything that is against God and the catholic faith, such things are to be commanded to none, and done by none. Saving these, however, faith must be kept to lords, more especially to a liege lord, and without his consent one may have no other lord.250 If the lord takes away his man’s land or deserts him in mortal peril, he forfeits his lordship; but the man must be long suffering, he must bear with his lord’s maltreatment of him for thirty days in war, for year and day in peace.251 Every one may aid his lord when attacked and obey him in all things lawful; and so too the lord is bound to help his man with aid and counsel in all things, and may be his warrant—at least in certain cases—if he attacks or molests another.252 To kill one’s lord is compared to blasphemy against the Holy Ghost; it is a crime to be punished by a death cruel enough to seem a fit beginning for the torments of hell.253 If, on the other hand, the lord slays his man who has done no wrong, the offence can be paid for with money.254

Bracton on homage.Bracton defines homage thus:—Homage is a bond of law (vinculum iuris) by which one is holden and bound to warrant, defend and acquit the tenant in his seisin against all men, in return for a certain service (per certum servitium) named and expressed in the gift, and vice versa whereby the tenant is “really” bound (re obligatur) to keep faith to his lord and do the due service; and such is the connexion by homage between lord and tenant that the lord owes as much to the tenant as the tenant to the lord, save only reverence.255 Such a definition tends to bring the whole matter within the legitimate province of the law of contract: there is a bargain about a tenement; the lessee is to do certain services, the lessor is to warrant the title. Warranty is still an important matter, and the doing and receipt of homage still have important results in the law about warranty; but even here the courts are beginning to neglect homage and to lay stress merely on the relation which exists, whether homage has or has not been done, between a feoffor and his feoffee. And, as Bracton here hints, the feoffee’s obligation to perform the services is beginning to be conceived rather as the outcome of a “real” contract than as an outcome of the act of homage. To this point we may return hereafter, since it lies within the domain of private law. What had been the public, the political or anti-political, force of homage may best be seen by comparing passages in the text-books which deal with the problems which may arise when a man holds different tenements of different lords and those lords quarrel.

Homage and private war.Such problems were possible even at the beginning of the twelfth century, for a man might hold land of divers lords.256 Glanvill, though he distinctly says that the tenant may have to fight against his lord at the king’s command, says also that if a man has done divers homages for his divers fees to divers lords who “infest” each other, and if his chief lord orders him to go in his proper person against another of his lords, he must obey the command, “saving the service to that other lord from the fee that is held of him.”257 This can hardly be read otherwise than as a statement that private warfare may conceivably be lawful. Bracton dealing with a like case uses more ambiguous words:—If enmities arise between his different lords, the tenant must in his proper person stand with him (stabit cum eo) to whom he has done ligeance, while he must stand with his other lords by attorney.258 There is a great difference between Bracton’s stare cum and Glanvill’s ire contra. Bracton’s words may be satisfied by supposing a tenant bound to do suit to the courts of two lords who have quarrelled; he must go in person to the one court, by attorney to the other. In Britton’s book, however, or at least in some manuscripts thereof, it is written that the tenant may have to serve one lord “against the other”;259 and we are hardly entitled to say that this doctrine, even as a legal doctrine, was of no force. It is probable that even the king’s courts would have held that the man was justified, or at least excused, in defending his lord and his lord’s property against hostile attacks, and such defence might easily become defensive warfare. The great case which proves that Edward I. had the will and the power to put down private war with a heavy hand, even when it was levied between the most powerful men of his realm, the case in which he sent an Earl of Gloucester and an Earl of Hereford to prison, proves also that in the eyes of contemporaries the full enormity of their offence was found in their having gone on with the war contrary to a royal prohibition, and that the morality of the time would hardly suffer any severe punishment to be inflicted upon those of their men who had followed their banners in ignorance of the king’s command. Such persons, if guilty of homicide, robbery, arson or the like, might doubtless be dealt with as common criminals; but for the mere fact that they had gone out with banner displayed, it would be hard to bring to bear upon them that prerogative procedure which was set in motion in order to crush the disobedient earls. At any rate, private war was an offence which might be enormously exaggerated by breach of a royal prohibition.260

Sanctity of homage.The same feeling may be seen in another quarter. That a lord should make an attack on his man or a man on his lord, even under the forms of law, is scarcely to be tolerated. If the man will bring an appeal, a criminal charge, against his lord, he must first “waive the tenement.”261 When a king is going to declare war upon his barons he first defies them, for there should be no attack while there is affiance. Henry III. in 1233 defied the Marshal, who then was no longer his man, but “outside his homage;”262 before the battle of Lewes he defied the earls of Leicester and Gloucester, who thereupon renounced homage and fealty.263 We can hardly say that all this lies outside the sphere of law, for rebellions and wars are conducted on quasi-legal principles: that is a characteristic of the time. Bracton fully admits that a man who holds land both in England and in France may be bound to aid both kings when they make war on each other; his liege lord he must serve in person, but none the less he must discharge the service due to his other lord.264

Homage and felony.But the most curious limitation to the force of vassalism will be found in the fact that a man can hardly “go against” any one at his lord’s command without being guilty of the distinctively feudal crime, without being guilty of “felony.” Common law, royal and national law, has, as it were, occupied the very citadel of feudalism. Whatever may be the etymology of felony (and of this we shall speak hereafter), there can be no doubt that the word came to us from France, and that in France and elsewhere it covered only the specifically feudal crimes, those crimes which were breaches of the feudal nexus and which would work a forfeiture or escheat of the fief, or as the case might be, of the lordship; for the lord might be guilty of felony against his man just as the man might be guilty of felony against his lord. A mere common crime, however wicked and base, mere wilful homicide, or theft, is not a felony; there must be some breach of that faith and trust which ought to exist between lord and man. Now it would seem that for a while the word was used here as well as elsewhere in this restricted sense; in the Leges Henrici felonia is one among many crimes.265 A little later it seems to cover every crime of any considerable gravity, and seems to have no reference whatever to the feudal bond, save in one respect, namely, that the felon’s land escheats to his lord; nay, a charge of felonia has become an indispensable part of every charge of every crime that is to be punished by death or mutilation.266 The details of this process are obscure. Possibly the lords saw no harm in a change which brought them abundant escheats; but an attack had been made upon vassalism at its very centre. To be true to your lord when there was any real strain on the feudal bond, to go out with him when he “went against” some one else, would end, like enough, in your finding that you had committed a felony. This of course is no superficial change in the use of words; it bears witness to a deep change in thought and feeling. All the hatred and contempt which are behind the word felon are enlisted against the criminal, murderer, robber, thief, without reference to any breach of the bond of homage and fealty.

Feudal felony.We can find traces of an older way of thinking. So late as 1225 William Blunt brought an action against Roger Gernon demanding homage, relief and scutage; Roger denied holding of the demandant and asserted that he held of William Briwere; the demandant replied “with words of felony”—wickedly and in felony had Roger denied his service and done homage to another.267 Such a use of the term felonia may have been belated, still felony in its more modern sense is not the only cause for an escheat. Glanvill speaks briefly:— the tenant will break the bond of homage if he does anything that may turn to the disherison of his lord or the disgrace of his lord’s person.268 Bracton’s phrase is “anything that may turn to the disherison of the lord or any other atrocious injury.” We cannot prove from decided cases that any delict falling short of a “felony” in the modern sense of that term, and unconnected with the tenure of the land, would have been regarded by the king’s courts of the thirteenth century as a cause of escheat; but it would be rash to deny that the tenant might lose the land by reviling his lord, particularly if the lord kept a court and the tenant were duly forjudged the land by his peers; and Bracton distinctly says that any violent laying of hands upon the lord will cause a loss of the tenement.269 As to the dealings with the tenement which might work a disherison, lord or tenant might well lose his rights in the land by disavowing the tenure. In Bracton’s day this principle was being degraded into a mere rule of property law, one of the complicated mass of rules about warranty and so forth; but we have just seen how in 1225 such a disavowal was still spoken of as a felony.270

Homage, by whom done and received.In other quarters we may see that homage has been losing its meaning. It has been connected with military tenure. According to Bracton it is due if the tenement is held by knight’s service, even though but one half-penny of scutage be payable; it is due also if the tenure is a serjeanty, at all events if the serjeanty be one that concerns the king; but it is not due from tenants in socage, though as a matter of fact they sometimes do it; if the tenure were villeinage, it would be dangerous to take the tenant’s homage, as this might imply an enfranchisement.271 Glanvill gives us an important clue when he says that a woman cannot do, though she may receive homage;272 in Bracton’s day this is otherwise, a woman may well do homage.273 Homage has implied a willingness to fight if need be, and even when it had become admitted that women might hold military fiefs—here in England they seem, as will be remarked hereafter, to have held such fiefs from the Conquest onwards—they could not say the words which imported an obligation to risk life itself in the lord’s service.274 But all this was passing away, and, despite what Bracton says, it seems to have been common for the socage tenant to do homage.275

The lord’s obligation.The contract was not one-sided. The lord was bound to defend and warrant his gift. When we hear of “warranty,” we are wont to think of a mere institute of private law common enough at the present day, the obligation of a seller to compensate a buyer who is evicted by superior title, and the covenants for title expressed or implied in our modern purchase deeds appear as the representatives of the ancient warranty. But the primary obligation of the warrantor in old times was not that of making compensation. His obligation to give his tenant a tenement equal in value to that whence he had been ejected was but a secondary obligation arising upon the breach of the primary obligation, namely, the duty of defending the tenant in his possession “against all men who can live and die.” If the tenant was attacked by process of law, he vouched his lord, he called upon his lord to defend the action, and the lord if he did his duty defended it. Now here we see a great force at work. Do what we may to make all men equal before the law, a rich man has and must always have advantages in litigation; he can command the best advice, the best advocacy. But in the middle ages the advantages of the rich and powerful must have been enormous. Happy then was the tenant who could say to any adverse claimant:—“Sue me if you will, but remember that behind me you will find the earl or the abbot.” Such an answer would often be final. We must understand this if we are to understand the history of commendation. The owner of land who gives it up to a great man and takes it back to hold by rent and services receives a “valuable consideration” for the surrender and submission. This is so even within the sphere of law and litigation; he has made his hold upon the land secure, for he has at his back a warrantor whom no one will rashly sue. We must add that he has a lord who may use carnal weapons or let loose the thunders of the church in defence of his tenant.276

§ 7.

Relief and Primer Seisin

The incidents of tenure.The lord’s rights cannot be summed up by saying that he is entitled to service of one kind or another from his tenant. Blackstone in a well-known passage enumerates “seven fruits and consequences inseparably incident to the tenure in chivalry, viz aids, relief, primer seisin, wardship, marriage, fines for alienation and escheat.”277 Of all of these we must speak, but we shall speak of them in a somewhat different order, and in the course of our discussion we must point out how far they were peculiar to military tenure.

Heritable rights in land.In the thirteenth century the rights of a person who holds land are usually heritable; when he dies the land will descend to his heir. We must not here discuss the canons of inheritance; it will be sufficient if we notice a few salient points. In the first place, the “heir” of English law is an essentially different person from the Roman “heres”:—he never claims under a will. With few exceptions, the broad rule holds good that no one can give rights in land by his will, and even in those cases in which such rights are thus given the person who gets them does not get them as “heir.” Only God, says Glanvill, can make an heir, not man.278 A distinction between land and movables is thus established; even when the dead man has not bequeathed his movables, the heir as such has no claim to them. In the second place, one main rule of the law of inheritance is the primogenitary rule:—among males of equal degree only the eldest inherits. This rule has been gradually extending itself; once appropriate to the military tenures, it is becoming the common law for all. Women can inherit even though the tenure be military; they are postponed to males of equal degree; several women of equal degree will share the inheritance between them, will be co-heiresses, coheredes. Lastly, though the rights of a tenant of land are usually heritable, this is not always the case: A may give land to B merely for his (B’ s) life; on the death of this tenant for life there will be nothing for his heir; the land will “return” or “revert” to A. But more, to make the rights of the donee heritable rights, the giver must use words which make this plain; if he merely gives the land “to B, ” then B is only a tenant for life; he must give it “to B and his heirs.”279

Reliefs.But the heir, whom we will suppose to be of full age, does not come to his inheritance without having to pay for it; he has to pay to his lord—and this is what concerns us here—a relief (relevium, or in earlier documents relevatio or relevamen). In Glanvill’s day the relief for a knight’s fee is fixed at 100 s.; for socage land it is one year’s rent; as to baronies and serjeanties, there is no settled rule; the heir must make the best bargain that he can.280 The Dialogue on the Exchequer tells us that the relief for the knight’s fee is 100 s.; that for the barony is in the king’s discretion.281 Excessive reliefs stood foremost amongst the grievances alleged by the barons in 1215; they asked that the heir should have his inheritance by “the ancient relief,” which relief was to be defined by the charter. And by the charter of 1215 it was defined; the heir of an earl’s barony was to pay £100, the heir of a baron’s barony £100, the heir to a knight’s fee 100 s.282 This was repeated in the charters of 1216, 1217 and 1225; but at some time or another the relief for a baron’s barony was reduced by one-third, namely, from £100 to 100 marks, and thus the notion that a barony consists of 131⁄₃ knights’ fees was engendered. The change, however and whenever it was introduced, was sanctioned by the charter of Edward I.283 Bracton states the law as to earldoms, baronies and knights’ fees in its final form; the relief for serjeants is still in the discretion of the lords.284 As to socage, he seems to doubt whether anything that can properly be called a relief is payable; for the lord has no wardship of the sokeman’s heir, and in general relief and wardship are connected rights. However, the heir has to make a certain payment (quaedam praestatio), namely, an additional year’s rent. Then as to fee farm, Bracton says that no fixed rule has been established; but a reasonable payment should be made, regard being had to the needs of the lord and the means of the tenant.285 In Normandy the relief seems to have had much the same history. In the oldest statement of Norman law the reliefs of counts, barons and knights are mentioned but their amount is not defined, while tenements that are not held by military service are rated at 5 shillings for the capital messuage and 12 pence per acre for the land.286 A little later we read that baronies pay £100 and knights’ fees £15.287 As in England, so in Normandy a relief was payable by every heir, even though he were the direct descendant of the dead tenant. This is noteworthy, for, according to a very common French custom, a relief was only exigible when the land descended to a collateral heir; but in France, as in England, we often find that one year’s rent, or one year’s profit, of the land, is deemed the due relief.288

Rights of the lord on the tenant’s death.The amount of the due relief is not the only, perhaps not the most important, point that has been in debate. A tenant dies: his heir was living in the same house with him: or his heir was not living on the tenement but at once presents himself: or his heir has gone to the wars, or has gone on pilgrimage: or two claimants appear, each asserting that he is heir: or a stranger intrudes himself into the tenement, setting up a claim as heir, or relying on some title adverse to the ancestor, or on his strong right arm: what in all these cases are the rights of the lord? To simplify the question, What is the general notion of the lord’s right—is he entitled to take the land and hold it until the true heir asks for it, does homage and pays relief, or is he only entitled to receive the relief having no concern with the land? There has been a conflict between inconsistent theories representing inconsistent interests. Already in Glanvill’s day it is settled that if the heir is in seisin the lord may not turn him out; the heir may resist the lord. Still the lord is entitled to a certain recognition of the fact that, though the tenement belongs to the tenant, it belongs also to the lord; he may enter and go through the ceremony of taking seisin, but he must do no damage.289 Bracton repeats this: in the case just put the lord may have “a simple seisin” of the land which does not disturb the heir’s seisin. But other cases must be discussed:—for example, at the ancestor’s death the heir may be absent, the tenement left vacant. In this case the lord may enter, and then the heir when he appears must not oust the lord by force; if he does so, the lord will have an action against him and will be restored to possession. So again, if there are two rival claimants of the inheritance neither of whom is yet in possession, the lord may enter and hold the land until one of the two has proved his right.290 We must remember that if no heir appears, the tenement will belong to the lord for good and all; also that if there is a dispute between several would-be heirs, the lord’s court is, at least in theory, the proper tribunal for its decision, and the lord who takes homage from a pretender runs great risk in so doing: he may have to warrant that pretender’s seisin, unless he has been careful to declare that the homage is received without prejudice to the rights of other claimants. A conflict between two sets of proprietary rights, those of the lord and those of the tenant, is thus complicated by the lord’s jurisdictional powers. In the struggle which precedes the Barons’ War the grievances of the tenants who stand low in the feudal scale become audible; and this is one chief grievance—on the tenant’s death the lord enters the tenement and wastes it; the heir can get no damages. An attempt to redress this grievance was made by the Provisions of 1259; a more successful attempt by the Statute of 1267; the heir is to have damages if the lord does any harm, for if the heir is forthcoming and in possession of the land, the lord is entitled to no more than “a simple” or as we should say a formal, “seisin.”291

Prerogative rights of the king.But here, as in many other cases, the king is outside the common law. This is fully recognized by the Statute of Marlborough (1267)292 and made yet clearer by the document known as Praerogativa Regis.293 When a tenant in chief of the crown dies, the king’s escheator seizes the land and inquires who is next heir (inquisitio post mortem); not until the heir’s right has been established by inquest, not until he has done homage, and paid, or given security for, his relief, will he be put in seisin; and if, impatient of delay, he puts himself in seisin, this will be a mere intrusion upon the king; for the king is entitled to the primer seisin (prima seisina).294 The machinery for enforcing this right seems to have been slowly perfected under Henry III.; but there is no room for doubt that the right itself had been enforced, though perhaps with less regularity, at a much remoter time.295 On the Pipe Roll of 1130 the reliefs that are mentioned are in some cases high,296 and the payment of relief is spoken of as though it were a condition precedent to the enjoyment of the land.297

Earlier history of reliefs. We are thus brought within seventy years of the Conquest. As to what had happened in that interval, we have two emphatic declarations. Henry I. in his coronation charter said, “When any of my barons, earls or others, who hold of me shall die, his heir shall not redeem, or buy back (heres suus non redimet) his land, as he used to do in the time of my brother, but shall relieve it with a just and lawful relief; and in like wise the men of my barons shall relieve their lands from their lords by a just and lawful relief.”298 In the second place, the chronicler when telling how Rufus kept bishoprics and abbeys vacant and made profit out of their temporalities, adds that he desired to be the heir of every man in England hallowed or lay.299 We see then that there already was an idea of a just and lawful relief, that William Rufus had exceeded its measure, and had in effect required the heir to purchase his ancestor’s land.300 In order to discover what was the just and lawful relief, we naturally turn to the Leges of the time, and we find that the compilers of them consider that the modern relief is but the ancient English heriot under a new name.

Relief and heriot.We are told that the ancient heriot (heregeatu, military apparel) had at one time consisted of the horses and arms lent by the lord to his man which on the man’s death were returned to the lord. In the laws of Cnut it is said that if by negligence or in consequence of sudden death any one quits this life intestate, the lord shall take no more of his property than his rightful heriot. The heriot of an earl is eight horses, four saddled and four unsaddled, four helms, four hauberks, eight spears, as many shields, four swords and 200 mancusses of gold; that of a king’s immediate thegn (cyninges þe-genes þe him nyhste syndon) is four horses, two swords, four spears, as many shields, helm, hauberk and 50 mancusses of gold; that for a mesne thegn (medemra þegna) a horse and harness, his weapons, and a sum of money.301 If a man falls before his lord in battle, no heriot is to be demanded.302 We see from this and from other evidence that it was expected of the thegn that he would make provision for the heriot in his will. Now it is likely that for a long time before William’s landing the old theory had ceased to describe the facts; the lord no longer provided armour for his dependent warriors; he gave them land instead, and very possibly the horses, arms and money rendered to the lord on his man’s death were by this time considered as a due paid by the heir in respect of the land. At all events the Normans had no difficulty in regarding the heriot as a relief. On the first page of Domesday Book we read how, when a Kentish alodiarius dies, the king has the relevationem terrae, except on the lands of certain great lords.303 In Berkshire when a king’s own thegn or knight died he used to leave as a relief to the king all his arms and one saddled and one unsaddled horse.304 In Nottinghamshire a thegn who has more than six manors pays £8 for the relief of his land to the king; if he has but six or fewer, he pays 3 marks to the sheriff;305 a similar rule prevailed in Yorkshire.306 But the most instructive entry is that which concerns the English (as opposed to the French) burgesses of Hereford. When a burgess who did service on horseback died, the king used to have his horse and arms; from one who had no horse the king had either 10 shillings or his land with the houses. If he died without a will, the king had all his movables (pecuniam).307 Probably if we could now unravel the knot of the old English land tenures, we should find that several different “death duties”—to use a large phrase—proceeding from different principles were becoming intermixed and consolidated, and that this process was hastened by the Norman Conquest. However, it is on the basis of Cnut’s law about heriots that the compilers of the Leges attempt to construct a law of reliefs. The Leges Henrici define the relevationes of the earl, the king’s thegn and the mediate thegn (mediocris thayni) by translating the words of Cnut.308 The Leis Williame follow the same model, but add that the relief of the villein is his best beast, and that a year’s rent is the relief of one who holds land at a yearly rent.309 Passing by for the moment this mention of the agricultural classes, we seem entitled to the inference that Cnut’s law appeared as the only measure by which the “just and lawful relief” of Henry’s charter could be determined. Of any competing Norman measure we hear nothing. In Normandy, as in England, the relief sometimes consisted of the dead man’s armour, and was therefore, in the oldest sense of the word, a “heriot.”310 But that Henry observed, or promised to observe Cnut’s law, we may not infer; its terms were fast becoming obsolete. Perhaps he considered, and was justified by Norman law in considering, that, at least in the case of earldoms and baronies, there was no fixed rule. The reliefs mentioned in the one Pipe Roll of his reign that has come down to us suggest that he allowed himself a liberal discretion and paid little regard to the antique rules about heriots.

Heritability of fees in the Conqueror’s reign.We are thus led to the question whether the followers of the Conqueror who received great gifts of English lands held those lands heritably. It is certain that they did; but this answer may require qualification and the difficulty of the question should be seen. As a matter of fact, their heirs in some cases succeeded them, and we even find women succeeding to baronies and military fees. But the number of tenures existing at a later day that can be traced back to the Conqueror’s reign by an unbroken thread of inheritance might easily be exaggerated. The great honours were frequently falling into the king’s hand by way of escheat. True, that in all or most cases the cause why the heir did not inherit may have been the treason or felony of his ancestor, or something that the king chose to treat as such.311 But this practical precariousness of tenure would check the formation of a law of inheritance applicable to military fees, and we have to remember that new canons of inheritance, primogenitary canons, were being evolved. Primogeniture was new in England, perhaps it was not very old in Normandy; near the end of the twelfth century both in England and in Normandy some of the most elementary points in the new system were still unsettled.312 Any uncertainty about the rules of descent would give an opening for the king’s interference.313 Add to this that the line between office and property is long an uncertain, fluctuating line. Are the earldoms, the counties, comitatus, to be hereditary; are the sheriffdoms, the vice-counties, vice-comitatus, to be hereditary; is the comes to be the successor of the ancient ealdorman; is the sheriff to be like the Norman viscount?314 And what of the new castles that the king has erected? The very caput honoris, is it not a royal fortress? Any reminiscence of precarious beneficia that was latent in Norman law would bear fruit when such questions as these had to be answered by a conquering king who was building up a kingdom for himself and his heirs. No doubt his followers believed that they obtained hereditary estates, though we do not know that they had any warrant for this belief on parchment. But they knew that their heirs must relieve their lands. What would be the measure and conditions of the relief, time would show.

Mesne lords and heritable fees.And as with the king, so with the mesne lords. The Abbot of Abingdon soon after the Conquest enfeoffed knights to fill the places of the thegns who fell at Hastings, regardless of any rights that the heirs of those thegns might have. Perhaps they were disinherited on the score of what was accounted the felony of their ancestors. This, however, is not the defence relied on by the chronicler of the abbey, who was not without patriotism; the thegns, he thinks, had little enough right to the possession of lands that had been given to the church. Then in the days of Rufus one of the new knights died leaving three daughters; the abbot of the day stoutly denied that there had been any hereditary feoffment, and at last would only admit the heiresses and their husbands as tenants for life on their abjuring all heritable rights.315 Dare we say that he was obviously in the wrong? A historian of law may easily credit his characters with too much foresight; the truth is that men gave lands and took lands and left the terms of the tenure to be decided thereafter by the course of events and their own strong wills.316 And so the feoda of the Norman reigns are indubitably hereditary: the very word is beginning to imply, even if it does not already clearly denote, heritability; but the lord has rights and to define them is difficult. The past history of the precaria which became beneficia, the beneficia which became feoda, the evolution of primogenitary rules, the conquest of England and consequent clash of laws, the ever renewed “treasons” and “felonies” perpetrated by the barons, all tended to keep the matter in uncertainty, and when finally the king’s rights emerge into clear daylight, they are large: the heir of the baron must make the best bargain that he can. To ascribe the law of reliefs and primer seisins to the covetousness of Rufus and the cunning of Flambard is to look only at the surface.

History of the heriot.The heriot was not suppressed by the relief, though in course of time it underwent a transformation. Glanvill tells us that the freeman who makes a will is bound to “recognize” his lord with the best and principal thing that he has and then to “recognize” the church.317 Bracton repeats this: the lord should have the best chattel, the church the second best, or the third best, or it may be the church is entitled to nothing, for customs vary.318 This will remind us of the gifts of arms and money made to the king by his thegns in the old days with a request that their wills may be allowed “to stand.” Elsewhere Bracton calls these testamentary gifts to the lords “heriots”; he tells us that the lord gets them by grace rather than by right, that they are regulated by local customs, that they do not touch the inheritance and that they must not be compared to reliefs. Britton adds that in general they are paid rather by villeins than by freemen.319 Turning to manorial surveys, we find it among the commonest of customs that when a tenant in villeinage dies, the lord shall have the best beast; sometimes a similar due is taken from the goods of the dead freeholder, and it is to these customary dues that the name “heriot” permanently attaches itself. Occasionally we still hear of the freeholder’s horse and armour going to his lord; but far more commonly the tenement that is burdened by a heriot is a peasant’s holding, the lord gets the best ox, and in this case the term heriot must in the eyes of the etymologist be inappropriate.320 We may guess that in the heriot of the later middle ages no less than four ancient elements have met:—(1) the warrior who has received arms from his lord should on his death return them; (2) the peasant who has received the stock on his farm from his lord should return it, and if his representatives are allowed to keep it, they must recognize the lord’s right to the whole by yielding up one article and that the best; (3) all the chattels of a serf belong in strictness of law to his lord and the lord takes the best of them to manifest his right; (4) in the infancy of testamentary power it has been prudent, if not necessary, that the would-be testator, however high his rank, should purchase from the king or some other lord that favour and warranty without which his bequests will hardly “stand.” But at any rate in course of time the heriot is separated from the relief.

Relief on the lord’s death.If a relief is payable when the original tenant dies and his heir takes up the inheritance, should not a similar payment be made when the original lord dies? We are told that, in the early days of the vassalic beneficium, the death of either party to the contract put an end to the tenancy, and on the continent the new lord on succeeding to his ancestor could often exact a payment from the tenant.321 A remarkable document has come down to us in which William Rufus fixes the relevamen which is to be paid to him by the knights of the episcopal barony of Worcester; Hugh de Lacy is to pay £20, Gilbert FitzTurold 100 shillings, the Abbot of Evesham £30, and so forth. The occasion of the relief seems this, that the Bishop of Worcester is dead and Rufus chooses to regard himself as the successor of St. Wulfstan, since the temporalities of the see are in his hand; “for he would be the heir of every man whether hallowed or lay.”322 This we may regard as an act of oppression, but the legal excuse for it probably is that a relief is due from the tenants to their new lord. Of such payments we do not hear much more under the name of reliefs; but in Normandy one of the regular “aids” payable to the lord was an aid towards helping him to pay his own relief; half the relief that he had to pay he might obtain from his tenants by way of aid.323 In England we do not reckon this among the regular aids, but Glanvill distinctly sanctions the lord’s claim,324 and we may see that the new bishop or abbot often expected that his knights and other tenants would “recognize” him handsomely when he entered into possession of his temporalities.325

§ 8.

Wardship and Marriage

Wardship and marriage.Of great and increasing importance as men grow wealthier and begin to traffic in all manner of rights, are the rights of the lord to wardship (custodia, warda) and marriage (maritagium), and these have been among the chief causes of that classification of tenures which has come before us.

Bracton’s rules.In Bracton’s day they had reached their full stature. Their nature may be illustrated by a simple case. A tenant, who has but one tenement, and who holds it by knight’s service or military serjeanty326 of a mesne lord, dies leaving as heir a son who is under the age of twenty-one years. The lord will have the wardship of the land until the heir attains that age or dies without having attained it. He will take the rents and profits of the tenement for his own use, but ought thereout to provide for the youth’s maintenance and pay the dead man’s debts;327 he must not commit waste; if he does so, he forfeits the wardship.328 But, besides the wardship of the land, he will be entitled to the wardship of the body of the heir; if the heir escapes from his custody, if another takes the heir from his custody, this is a wrong to him; by legal process he can compel the restoration of the heir’s body.329 But further, as guardian of the heir’s body he is entitled to the boy’s “marriage”; he can sell him in marriage;330 but the marriage must not be of a disparaging kind.331 The law does not go so far as actively to constrain the ward to marry the mate provided by the guardian, nor does it declare null a marriage solemnized without the lord’s consent, though we have a hint that early in Henry III.’s reign such an union might not have all those legal results that a marriage usually has.332 The maxim was admitted, strange as this may seem to us, that “marriages should be free,”333 and the church would neither have solemnized nor annulled a sacrament at the bidding of the lay tribunals. Still if the ward married without the lord’s consent, he wronged the lord, and so did any one who took part in procuring such a marriage.334 Without making any great change in the substantive law, the Statute of Merton (1236) defined the lord’s right by giving him new and efficient remedies:— the current of legislation had in this instance set in his favour.

Wardship of female heirs.If the heir was a woman, the lord’s right of wardship was much the same; but whether the wardship of a woman was to endure until she attained the age of twenty-one, or was to cease when she attained the age of fourteen, seems to have been a moot point.335 Marriage with her lord’s consent put an end to the wardship of a woman. But according to old law, which Bracton regarded as still in force, no woman holding by military service could lawfully marry without her lord’s consent, and even a father holding by military service could not in his lifetime lawfully give his daughter in marriage without his lord’s consent.336 This right the king rigorously enforces over widows who hold of him in chief; to marry such a widow without the king’s licence is a grave offence.337 The lord’s rights, it will be understood, were proof against any claim on the part of even the nearest of kin; the heir fell into the lord’s hands even though his mother were alive. An apparent exception existed when the heir inherited from his mother while his father was living; but this was hardly an exception, for in this case the father, according to an opinion that was gradually prevailing, continued in possession of his late wife’s land, not as guardian of the heir, but in his own right.338

Priority among lords.If the dead man held by knight’s service or military serjeanty of several mesne lords, each of them got the wardship of the tenement that was holden of him. As to which of them should have the wardship of the heir’s body and with it the right of marriage, there was intricate law; the general rule traced back the titles under which the dead man held the various tenements and preferred that lord from whom, or from whose ancestors, the most ancient title was derived; that lord would usually have been, not merely the dead man’s lord, but his liege lord.339

What tenures give wardship.If the dead man held his one tenement in socage, burgage, or fee farm, or by a non-military serjeanty, his lord had no right to wardship or marriage: such was the general rule. As a matter of fact, however, we find socage tenure subjected to these burdens. This seems to have been the case throughout the Bishop of Winchester’s barony;340 the dean and chapter of Hereford claimed wardship of the heirs of all their freehold tenants;341 the Archbishop of Canterbury, the prior of Christ Church, the monks of Dover claimed the same right over the heirs of their gavelkinders.342 This Bracton regarded as an abuse, though one that might be sanctioned by prescription.343 The ordinary rule was that the guardianship both of the land and of the child should go to the nearest of those relations who could have no hope of inheriting the land. Thus, in the common case, when the dead tenant in socage left a son and a widow, the widow would have the wardship of her son and of his land; she would be “guardian in socage,” for she never could be his heir. To state the main upshot of the rule—maternal kinsfolk have the wardship of a paternal inheritance, paternal kinsfolk of a maternal inheritance.344 When the heir attained his fifteenth year, guardianship in socage came to an end.345 If the dead man held one tenement by knight’s service, another by socage, the wardship of the one would belong to its lord, that of the other to a kinsman of the heir; as to the wardship of the heir’s body, this and his marriage would belong to the lord of whom he held by military tenure.346

Prerogative wardship.Once more we see the king above the common rules.347 If the dead man held in chief of the crown by knight’s service or by grand serjeanty, the king was entitled to the wardship of the heir’s body and to his marriage, no matter how many other lords there might be, and no regard being had to the relative antiquity of the various titles by which the tenements were holden: no one can compete with the king. But further, the king was entitled to the wardship of all the lands which this dead man held, no matter of whom he held them. Such was the right of “prerogative wardship,” and a clause in the Great Charter had been necessary to keep it within these spacious bounds.348 The king was thereby excluded from a prerogative wardship when the tenement holden in chief of the crown was holden in socage, burgage, fee farm or by a petty serjeanty. He was also excluded when the dead man, though a tenant in chief of the king, held not “as of the crown” but “as of an honour” which was temporarily or permanently in the king’s hands. It is this last rule that chiefly serves to establish a difference between tenure ut de corona and tenure ut de honore.349

The lord’s rights vendible.The guardian’s rights in the person, in the marriage, in the lands of the heir are regarded as property; they are saleable, assignable rights; large sums are paid for the wardships and marriages of wealthy heirs;350 indeed so thoroughly proprietary and pecuniary are these rights that they can be disposed of by will; they pass like chattels to the guardian’s executors.351 In Bracton’s day no distinction in this respect seems drawn between the guardian in chivalry and the guardian in socage. Neither one nor the other need account to the heir for the profits of the land; the one like the other can sell the ward’s marriage.352 This was so until the eve of the Barons’ War, when one of the Provisions of Westminster, afterwards confirmed by the Statute of Marlborough, laid down the rule that the guardian in socage must, when the heir has attained majority, account to him or her for the profits of the land, and is not to give or sell the ward in marriage save to the profit of the ward.353 This should be had in mind if we are to understand the rights of the guardian in chivalry. The morality of the twelfth century saw nothing shameful in the sale of a marriage; the law of the time looked upon guardianship as a profitable right and would hardly have had the means of compelling a guardian to render accounts, even had it wished so to do.354

Wardship and the serjeanties.One small point remains to be mentioned. It is the law about wardships and marriages that gradually divides the serjeanties into two classes, known as “grand” and “petty.” In the Great Charter, John was forced to say that he would claim no prerogative wardship in respect of “any small serjeanty such as that of supplying us with knives or arrows or the like.”355 The term “small serjeanty” seems one which is not yet technical, and the nature of those serjeanties which are too trivial to justify the royal claim is indicated in the rudest manner. In Bracton’s day one opinion would have applied a merely pecuniary test; a great serjeanty is one that is worth 100 shillings;356 but gradually a different line seems to have been drawn: the tenant by grand serjeanty must do his service in person, and his service must not consist of a mere render.357 Another question was whether tenure by serjeanty of a mesne lord would give the lord wardship and marriage. Here also a line had to be drawn, but where it should be drawn was a question between Raleigh and Segrave. The “rodknight’s” serjeanty of riding with his lord, will this give wardship and marriage? Raleigh decided that it would; Segrave dissented. Bracton seems inclined to hold that the lord’s rights only arise when the serjeanty is one which concerns the defence of the realm.358

The law in Glanvill.Looking back from Bracton to Glanvill we see but little change. In his treatment of these matters Bracton has but revised and expanded his forerunner’s text.359 The Statute of Merton has at a few points given a sharper edge to the lord’s rights; the Great Charter has suppressed some abuses which had grown up under Richard and John, in the main abuses of the prerogatival rights. To speak of the English lords as groaning under the burdens of wardship and marriage is hardly permissible;360 we do not hear their groans. In the days of their power, in 1215 and in 1258, they had little to suggest; it was enough that the heir’s land should not be wasted, that wards should not be married below their station.361 Certainly there was at one time a tradition that in or about the year 1222 “the magnates of England granted to King Henry the wardship of their heirs and of their lands, which was the beginning of many evils in England.”362 This story, however, has not been traced beyond chronicles which in this context must be styled modern, and as it is absolutely certain that the king’s right to wardship was much older than Henry III.’s day, we may well doubt whether there is even a grain of truth in the tale.363 More important is it for us to notice with many recent writers that Glanvill says nothing about the lord’s right to the marriage of a male ward; he speaks only of the marriages of women. This is remarkable, but we cannot adopt the popular opinion that this new right, if new we must call it, “was based simply on a strained construction of the general word heredes in a section of Magna Carta.”364 We can trace the sale of the marriages of boys back to a very few years after Glanvill’s death; in 1193 the Bishop of Ely, William Longchamp, for 220 marks buys from the king the wardship of Stephen Beauchamp and the right to marry him wherever he may please.365 Such transactions are common enough throughout the reigns of Richard and John. Archbishop Hubert gives 4,000 marks for the wardship and marriage of Robert Stuteville, though the king reserves a certain veto on the choice of a bride.366 If two men who have filled the office of chief justiciar invest their money thus, the security is fairly good. We must suspect that under Henry II. the sale of the male ward’s marriage was a growing practice. As to earlier days, the one extant Pipe Roll of Henry I.’s reign shows us the king selling wardships,367 and selling the marriages of women;368 it seems to show that even the male ward could not lawfully marry without his lord’s consent.369

Earlier law.Then however in our backward progress we come to the declaration of Henry I. in his coronation charter:—“If any of my barons or other men wishes to give his daughter, or sister, or niece, or cousin in marriage, let him speak with me; but I will neither take anything of his for the licence, nor will I forbid him to give her away, unless it be to an enemy of mine. And if on the death of one of my barons or other men he leaves a daughter as heir, I will give her with her land by the counsel of my barons. If he leaves a widow, who is without children, she shall have her dower and marriage portion, and I will not give her in marriage against her will. If she has children, she shall have her dower and marriage portion while she remains chaste, and I will not give her unless with her consent. And the wife or some other relative who has the best claim shall be guardian of the land and of the children. And I bid my barons keep within the same bounds as regards the sons, daughters and wives of their men.”370 That Henry made these promises is certain, that he broke them is equally certain; but here again, as in the matter of reliefs, the question arises whether his promises represent the old law as it stood before the tyranny of Rufus and Flambard, or whether he is buying support by relaxations of ancient rules. The question is difficult, for of the Conqueror’s practice we know little, and of the Norman law of the eleventh century we know, if that be possible, less.

Norman law.In later days, Norman law and English law agree; they agree even in some of the minuter details of prerogative wardship, for as in England no lord can compete with the king, so in Normandy none can compete with the duke. Perhaps under French dominion some of the worst characteristics of the Anglo-Norman law were mitigated. In Glanvill’s day the rule that a ward might not lawfully marry without the lord’s consent was applied in Normandy to male as well as to female wards; in later statements of the rule we hear only of female wards.371 From a Norman lawyer, a contemporary of Glanvill, we have, what no English lawyer gives us, namely, a defence of the law, and a curious defence it is:—“A fatherless heir must be in ward to some one. Who shall be his guardian? His mother? No. Why not? She will take another husband and have sons by him, and they, greedy of the heritage, will slay their firstborn brother, or the step-father will slay his step-son. Who then shall be the guardian? The child’s blood kinsmen? No. Why not? Lest, thirsting for his heritage, they destroy him. For the prevention of such faithless cruelty, it is established that the boy be in ward to one who was bound to his father by the tie of homage. And who is such an one? The lord of the land who never can inherit that land in demesne; for heirs of a noble race always have many heirs. Besides they should be brought up in good houses and honourably educated. Those who are brought up in their lords’ houses are the apter to serve their lords faithfully and love them in truth; and the lords cannot look with hatred on those whom they have reared, but will love them and faithfully guard their woods and tenements and apply the profits of their land to their advancement.” As to prerogative wardship, the duke, who is bound to rule all his people, is more especially bound to have a care for the orphan.372

The Norman apology.That this quaint apology is mere nonsense we are not entitled to say. There was a strong feeling that to commit the care of a child to the custody of his expectant heir was to set the wolf to guard the lamb. Fortescue, when he sang the lauds of the laws of England, made boast of the wisdom of our rules about socage guardianship. Some French customs managed the matter yet more prudently, giving the custody of the lands to those who might inherit, the custody of the child’s person to those who could not inherit from him. Still we cannot regard the rights of English and Norman lords as instituted for the protection of infant life, or for the advancement of the ward by education in a “good house,” though here we may see some set-off for what we are wont to regard as tyrannous exactions. The real question is whether we are entitled to find the explanation of the English and Norman, and (it should be added) the Scottish, law of wardship in the ancient history of the precarious beneficium.

Origin of these rights.The history of the law has been pictured thus:—Gradually the “benefice” lost its precarious character; it became a usufruct for the tenant’s life; the heirs male of his body, if competent to perform the lord’s service, acquired first a claim, then a right to succeed him; female heirs, collateral heirs, were slowly admitted; even an infant heir has a claim to succeed, a claim to succeed hereafter when he shall be able to serve the lord; meanwhile the lord will hold the land and train the heir. As to female heirs, if they are to be admitted at all, it is certain that they must not marry without their lord’s consent. Gradually tenants at will are making themselves absolute owners. The English and Norman law of the twelfth century represent a particular stage in this process. In the duchy, in the island kingdom, under pressure of strong government, customs have crystallized at an early time, while the financial necessities of the king, the wealth of his subjects, the early development of commercial ideas, give to the law its most repulsive features:—if any one has a right in England, that right must be a saleable commodity. When French and German law become definite in the thirteenth century they represent a later stage in the transformation of the beneficium; yet further encroachments have been made upon the lord’s rights, though of their once wider compass there are many memorials. The lord has a certain influence on the choice of the heir’s guardian; he confers the fief upon the guardian and sees that his own rights are not thereby impaired; if no kinsman is forthcoming, then he keeps the fief in his own hands; he has also a word to say about the marriage of his female tenants. These French and German phenomena find their best explanation in the law of England and Normandy.373

The precarious beneficium. How far this hypothetical history can be verified in the scanty annals of the Norman duchy is a question about which we dare say no more than has been said above.374 There seems however to be just enough evidence to show that the Conqueror both in Normandy and in England expected that he would be consulted before any of his female tenants in chief—he had but few—took to herself a husband, and, as already remarked, the inheritance of great fiefs, at least where an office was bound up with the land, was not altogether beyond his control.375 There were cases in his own family which might support such a claim; had not Richard the Fearless been in ward to his lord King Louis: had not William himself been claimed by King Henry? Men said so.376 If the kings of the French had been compelled to abandon all hopes of contesting the heritability of the great fiefs, they had yielded slowly and reluctantly, and perhaps had hardly yet brought themselves to acknowledge the full import of the unpleasant facts.377 The king of the English was to be not less of a king than the king of the French, and rights of wardship and marriage were necessary to him if he was to keep any hold upon his feudatories. The use or abuse of such rights for merely fiscal purposes may begin at a later time; but there the rights were. As to the mesne lords, they seem to have taken the first opportunity that occurred of asserting similar rights; in the reign of Rufus the Abbot of Abingdon was already claiming the wardship of an infant tenant.378 On the whole it seems to us that the old is the true story, and that the rights of wardship and marriage are, if we look at Europe as a whole, the outcome of a process which is benefiting the feudatory at the expense of his lord, though it may also be reducing to the level of feudatories men whose predecessors had no landlords above them. Unfortunately in England feudalism itself becomes commercial.

§ 9.

Restraints on Alienation

Historical theories about the power of alienation.In the middle of the thirteenth century the tenant enjoyed a large power of disposing of his tenement by act inter vivos, though this was subject to some restraints in favour of his lord. About the history of these restraints different opinions have been held. The old English tradition, represented by Coke, regarded it as a process by which limits were gradually set to ancient liberty.379 On the other hand, the cosmopolitan “learning of feuds,” which Blackstone made popular, assumed the inalienability of the fief as a starting point:—gradually the powers of the tenant grew at the expense of the lord.380 Of late years a renewed attention to the English authorities has occasioned a reaction in favour of Coke’s doctrine.381 The evidence deserves a patient examination, the result of which may be that we shall see some truth in both of the rival opinions, and come to the conclusion that the controversy has been chiefly occasioned by an attempt, common to all parties, to make the law of the Norman reigns more definite than really it was.

Modes of alienation.Some distinctions must first be drawn. The tenant may desire to alienate the whole, or only some part of the tenement, by substituting for himself some new tenant who will hold the tenement, or the part so alienated, of his, the alienator’s, lord; or again, he may desire to add a new rung to the bottom of the scale of tenure, to have a tenant who will hold the whole or part of the land of him, and in this case the services for which he stipulates may be different from those by which he himself holds of his lord;—we have to contrast “substitution” and “subinfeudation.”382 Now each of these two processes may harm the lord, but the harm done by the one will, to a lawyer’s eye, be different from that done by the other. First, however, we have to notice that nothing that the tenant can do without his lord’s concurrence will remove from the land the burden of that service which is due to his lord from him and from it. The tenement itself owes the service; the “reality,” if we may so speak, of the burden can be brought home by means of distress to any one into whose hands the land may come. But though this be so, an alienation of any kind may make against the lord’s interest. If a new is substituted for an old tenant, a poor may take the place of a rich, a dishonest that of an honest man, a foe that of a friend, and the solemn bond of homage will be feeble if the vassal has a free power of putting another man in his room. If the substitution affects part only of the tenement, the lord may suffer in another way, and it is hardly to be supposed that he can be bound by an apportionment of the service effected without his concurrence, so that instead of being able to look to one man and six hides for his scutage or rent, he can be compelled to look to one man and four hides for two-thirds of it, to another man and two hides for the residue.383 The harm done by subinfeudation is of a different kind. There will still be the old tenant liable as before; on his death the lord will get a relief or possibly a wardship and marriage, on his death without heirs, an escheat. These rights will not be destroyed by the subinfeudation, but their value may be seriously lessened. Suppose that A enfeoffed B to hold by knight’s service, and that B enfeoffed C to hold at a rent of a pound of pepper; B dies leaving an heir within age; A is entitled to a wardship; but it will be worth very little: instead of being entitled to enjoy the land itself until the heir is of age, he will get a few annual pounds of pepper. And so in case of an escheat, instead of enjoying the land for ever he may have but a trifling rent.384 Obviously the case is at its worst when the tenant makes a gift in frankalmoin; a wardship will now be of no value at all; an escheat will give but a nominal seignory over a corporation which pays no rent, which never dies, nor marries, nor commits felony. Still, it is plausible to say with Bracton, that the lord is not injured; his rights remain what they were, though their value is diminished; he suffers damnum, but there is no iniuria.385

Preliminary distinctions.Also in our investigation we must keep our eyes open to differences between the various tenures. As just said, a gift in frankalmoin, though a very common, is yet an extreme case; it reduces the value of the feudal casualties to nothing. Tenure by serjeanty again may require special treatment, for is a servant to alienate the fund which should sustain him in his lord’s service? Lastly, though pure feudal theory can draw no distinction between the king and other lords, still we have already seen that the English king has very exceptional rights within the feudal sphere. Even if no exceptional rules were applied to him, still his position would be unique. Too often in discussions of questions about feudal law we are wont to speak of lords and tenants as though they were two different classes of persons with conflicting interests. Therefore it is necessary to remember that the king was the only person who was always lord and never tenant; that his greatest feudatories had one interest as lords, another as tenants; that the baron, who did not like to see his vassals creating new sub-tenancies, could not forget that he himself had a lord. The conflict of interests takes place within the mind of every magnate of the realm, and the result is that the development of definite law is slow.

This premised, we turn to our history, and first to that part of it which lies within legal memory; of the earlier time we shall be better able to speak when we have seen its outcome. Now the main facts of which account must be taken are as follows:

Glanvill.(1) Glanvill nowhere says that the tenant cannot alienate his land without his lord’s consent, though, as he speaks at some length of the restraints on alienation that are set by the rights of expectant heirs, he has an excellent opportunity for saying that the rights of the lord also must be considered.386

The Great Charter.(2) The Great Charter of 1217 is the first document of a legislative kind that expressly mentions any restraint in favour of the lord. It says—“No free man shall henceforth give or sell so much of his land as that out of the residue he may not sufficiently do to the lord of the fee the service which pertains to that fee.”387 This has all the appearance of being a rule which imposes a new or defines a preexisting restraint; to read it as mitigating a pre-existing restraint would do violence to its words. Coke speaks as though its only effect was to make the excessive gift voidable by the donor’s heir;388 but it certainly could be avoided by the donor’s lord; this we learn both from Bracton and from a decision on which he relies.389

Bracton.(3) Throughout his work Bracton shows a strong leaning in favour of free alienation. As regards subinfeudation, he argues laboriously that it does no wrong, though it may do damage, to the lords.390 The very earnestness of his argument shows that he has to combat a strong feeling, still we must take his opinion as that of the royal court. The rule laid down by the third edition of the Charter he mentions only in a very casual way, as though it were directed chiefly, if not solely, against gifts in frankalmoin;391 collections of charters and collections of pleas from his time seem to show that it produced little effect.392 The strength of Bracton’s inclination in favour of subinfeudation may be shown by a passage in which he goes so far as to question the justice of the rule which treated service as a burden on land. He supposes that A enfeoffs B to hold by a certain service; and that B enfeoffs C to hold the whole or part of the tenement by a less service; the rigour of the law, he says, permits A to distrain C for all the service due from B, but this is against equity.393 Then as to substitutions, he holds that even when B has done homage to A, nevertheless B may give A a new tenant by enfeoffing C to hold of A, and C will then hold of A whether A likes it or no.394 Bracton does not even expressly allow A to object that C is his personal enemy or too poor to do the service, which is very remarkable, since he does allow that the lord cannot substitute for himself in the bond of homage a new lord who is the enemy of the tenant, or too needy to fulfil the duties of warranty.395 He does not even say that the tenant cannot give a fragment of the tenement to be holden of the lord by a proportional part of the service, though we may take it that in his opinion the inequitable rigour of the law396 would prevent the tenant and his feoffee from making an apportionment which would bind the lord.

Legislation as to mortmain.(4) Just in Bracton’s time alienations in mortmain were beginning to cause murmurs. The charter of 1217 had struck at certain collusive practices to which the churches had been privy.397 In 1258 at the Oxford parliament the barons prayed remedy, that men of religion may not enter the fees of earls and barons and others without their will, whereby they lose for ever their wardships, marriages, reliefs and escheats.398 In 1259 the Provisions of Westminster ordained that it shall not be lawful for men of religion to enter the fee of any one without the licence of the lord of whom the land is holden.399 These Provisions were now law, now not law, as the barons or the king obtained the mastery. Most of them were reenacted by the Statute of Marlborough in 1267, but not the provision now in question; from which we may gather that the clergy were influential enough with the king, who was enjoying his own again, to put off the evil day. But not for long, for in 1279 the Statute De Viris Religiosis,400 after referring to the Provisions of Westminster as though they were or had been law,401 put a check upon alienations in mort-main. No religious persons were to acquire land; if they did, the land was to be forfeited to the lord, and he had a brief term given him for taking advantage of the forfeiture; if he failed to do so, the lord next above him in the feudal scale had a similar opportunity; and so on up to the king. The statute does not merely condemn gifts in frankalmoin; the religious are not to acquire more land, even though they are willing to pay a full rent for it. However, the king and the other lords, if any, whose interests were concerned could bind themselves to take no advantage of the statute, and licences to acquire land in mortmain were somewhat easily obtained.

Alienation of serjeanties.(5) From a comparatively early date we learn that serjeanties were inalienable. Already in 1198 the itinerant justices were directed to make inquest touching the king’s serjeanties.402 In 1205 John ordered an inquest as to the serjeanties, thegnages, drengages and other services and lands of the honour of Lancaster, which honour was then in his hands; the sheriffs were to seize all such as had been alienated since the coronation of Henry II. without licence from the king or other good warrant.403 This claim was steadily maintained by Henry III.404 Towards the middle of his reign it was enforced with retrospective rigour; Robert Passelew was sent through England to “arrent” the alienated serjeanties, that is to say, to change the tenure from serjeanty into knight’s service or socage. One instance out of a very large number will serve to show what was done. Walter Devenish held land by the serjeanty of finding three arrows when the king should hunt on Dartmoor; he had alienated parts of the tenement to subtenants, his services were now changed into a rent of three shillings, one-third of which was to be paid to him by his subtenants.405 That many of the king’s tenants by serjeanty had alienated parts of their tenements by way of subinfeudation is instructive: we learn that a restraint on alienation might exist in theory and yet be much disregarded in practice. Our evidence chiefly concerns serjeanties held of the king; but we may guess that other lords thought that a similar rule might be applied to their serjeants; and the serjeants of the honour of Lancaster, whose alienations John attacked, were not tenants in chief of the crown.

Special law for the king’s immediate tenants.(6) Bracton nowhere says that any special restriction is imposed on the tenants in chief of the crown; the utmost that he does is to suggest, and this not very definitely, that the Charter of 1217 has been construed favourably to the king. The tenant in chief by knight’s service of the king may not make a gift in frankalmoin, or a feoffment which reserves a less service than that due to the king.406 But just about the time when Bracton was writing Henry III. issued an important ordinance. It takes the form of a writ dated the 15th of July, in the fortieth year of the reign (1256). The king asserts that it is an intolerable invasion of royal rights that men should without his special consent enter by way of purchase or otherwise the baronies and fees that are holden of him in chief. He declares that for the future no one is to do this, and bids the sheriff seize the land upon which any one enters in contravention of this decree. This writ, however, remained unknown to our historians until it was published in 1896, and, as we shall see hereafter, even the lawyers of the fourteenth century seem to have been ignorant of its existence.407 Perhaps the king did not wish or did not dare to enforce in all cases the broad rule that he had laid down; the Barons’ War was at hand. The apocryphal Statute Praerogativa Regis, which may represent the practice of the earlier years of Edward I., says that no one who holds of the king in chief by knight’s service may without the king’s licence alienate the greater part of his land so that the residue is not sufficient to do the service, “but this is not wont to be understood of members or parcels of the said lands.” It adds that the king has been accustomed to set to rent (arrentare) serjeanties that have been alienated.408 In 1290 a petitioner says that the king has a prerogative that those who hold of him in chief cannot give or alienate their lands without his licence; certainly they cannot alienate all that they so hold.409 Britton states that earls, barons, knights and serjeants who hold of the king in chief cannot without his licence alienate their fees, but the king may eject the purchasers, no matter how ancient the alienation, since time does not run against the king.410 Fleta states broadly that no tenements holden of the king can be given without his assent.411 This becomes the law of after times. Before the end of Edward’s reign both theory and practice draw a marked distinction between the king and other lords, and the king is making a considerable revenue out of licences to alienate and fines for alienations effected without licence.412

Growth of the prerogative right.(7) The growth of the royal right may be traced also in the articles delivered to the itinerant justices. Already in Richard’s reign they are to inquire “of the king’s serjeanties, who has them, and through whom, and how much, and what they are worth.”413 A similar inquiry is found among the articles of Henry III.’s reign; but, though there were divers other inquiries about royal rights, wardships, escheats and the like, there seems to have been none as yet into alienations of lands not holden by serjeanty.414 But in or about 1254 a special commission was issued,415 which was a forerunner of the more famous Quo Waranto inquiry of Edward I.’s reign, and among the articles, besides that about serjeanties, there seems to have been one “of knights, freeholders, men of religion or others, holding land on the king’s demesne by gift or sale of the sokemen or by provision of the warden or bailiffs,” and another “of men of religion who have entered the king’s fee so that the king loses wards, reliefs and tallage.”416 The right asserted is growing more ample; and two years later the king issued the decisive writ. And so the inquiry becomes more extensive. In 1274 it runs thus:—“of the fees of the king and of his tenants, who now holds of him in chief, and how many fees each holds, and what fees were wont to be holden of the king in chief but now are held through a mesne lord (per medium), and what mesne lord, and when they were alienated, and how and by whom.”417 Thenceforth this is one of the usual articles of the eyre, and as such it is given by Fleta and Britton;418 it formed one of the Nova Capitula which were distinguished from the more ancient articles.

Quia emptores.(8) The famous statute of 1290, the Quia Emptores Terrarum,419 lies outside our limits, but a word must be said of it. It declared that every freeman might sell his tenement or any part of it, but so that the feoffee should hold of the same lord and by the same services, of whom and by which the feoffor held. In case only a part was sold, the services were to be apportioned between the part sold and the part retained according to their quantities; this apportionment was binding on the lord. The statute is a compromise; the great lords had to concede to their tenants a full liberty of alienation by way of substitution—substitution even of many tenants for one tenant—and thus incur a danger of losing their services by the process of apportionment; on the other hand, subinfeudation with its consequent depreciation of escheats, wardships and marriages was stopped. Nothing was said about the king’s rights and no one seems to have imagined that the tenants in chief of the crown were set free to alienate without royal licence; on the contrary, it is just at the moment when all other tenants are gaining perfect freedom, that the king’s claim to restrain any and every alienation by his tenants in chief attains its full amplitude.420

Disputed origin of the prerogative right.(9) What was the legal basis of this prerogative right? Already in the middle of the fourteenth century the lawyers had no certain answer for this question. The writ of 1256 they seem to have forgotten or but vaguely remembered and incorrectly dated; also their speculations are obscured and vitiated by the belief that the Praerogativa Regis was a statute. Already in Edward II.’s day it was clear that the royal claims were too extensive to be covered by the clause in the Charter of 1217. In 1325 complaint was made in parliament that the rule applicable to tenants in chief of the crown was being extended to tenants who held of honours which had fallen into the king’s hands; the king acknowledged the distinction; as lord of an honour he had only such rights as were given to all lords by the Charter.421 In 1327 a statute was required to settle that, on an alienation without licence, the king was entitled only to a reasonable fine and not to a forfeiture of the land.422 In 1341 it was suggested in court that before the thirtieth year of Henry III. a tenant in chief might alienate without licence.423 In 1346 it was asserted and denied by pleaders that before the twentieth year of Henry III. a tenant in chief of the crown could alienate like any other tenant. The reporter apparently has his doubts and tells us to consider the date of the Praerogativa Regis.424 In 1352 the question was discussed whether in Henry III.’s reign the tenant in chief could subinfeudate without licence, and apparently the decision was to the effect that he could.425 In 1355 the lawyers are once more debating whether something happened in the twentieth year of Henry III. to prevent the tenant in chief from subinfeudating.426 Why do they single out the twentieth or thirtieth year (1235–36, 1245–46) of Henry III. as important? To say with Coke427 that in the twentieth (or rather in the following) year Magna Carta was confirmed, is not satisfactory; the same might be said of so many years, and the Magna Carta of the lawyers’ statute books was the charter of 9 Henry III. (1225), confirmed by Edward I. To say that they referred the Praerogativa Regis to the twentieth or thirtieth year of Henry seems impossible, since that enigmatical document mentions King Edward. Probably they were thinking of the writ of the fortieth year (1256). The discussion, however, was taken up in parliament, and there the king’s right was treated as the outcome of the Praerogativa Regis, and was said to have had its beginning in the reign of King Edward I.428 A declaration of the law was demanded; but the king desired further information. The question was of practical importance, for it came to this:—Could the king attack a possessor of land on the ground of an alienation made without licence in the days of King Henry—or, more generally, was there any limit of time that could be set to this prerogative right? In 1360 a statute confirmed all subinfeudations made by the tenants in chief under Henry III. and earlier kings.429 As we can hardly believe that Edward III. gave up any right to which he considered himself justly entitled, we may infer that the result of repeated discussions in the courts and in parliament was to date the change in the law at the accession of Edward I. in 1272, about sixteen years after what we may now regard as the decisive ordinance.430

Summary as to law after the date of the Charter.On the whole then, we may be inclined to accept, with some modification, Coke’s theory of this episode. We may believe that the only restraint on the alienation of tenements holden of mesne lords that existed after the year 1217 was the somewhat vague restraint imposed or defined by the charter of that year; that, apart from this, the tenant might alienate the whole or any part of the land by way of subinfeudation, and the whole, though perhaps not a part of it, by way of substitution; that the king’s prerogative right gradually grew out of the right allowed to all lords by the charter, though it exceeded the words of that compact; that it was first asserted in all its breadth in the writ or ordinance of 1256, and may not have been stringently enforced until the accession of Edward I.431 But as to an earlier period, there is much to be said on the other side; there are the once fashionable arguments drawn from “the learning of feuds,” while more solid arguments may be derived from English and Norman deeds.

Older law.As regards “the original constitution of feuds” little need here be said: it was an old story long before the battle of Hastings. Very generally the continental vassal could not substitute a new vassal for himself without his lord’s consent; but commonly he had some power of subinfeudation.432 Wherever we look in the twelfth century we see differences of practice and in some cases the law is becoming more favourable to the lords, less favourable to the tenants.433 In this instance however we have no need to look beyond England and Normandy. For the period between 1066 and 1217 we have hundreds of English charters,Anglo-Norman charters. and at first sight they seem to go the full length of proving that from the Conquest onward no tenant could alienate his land without his lord’s consent. It so happens also that in Normandy we can trace this restraint on alienation back to the time when the duke of the Normans was not yet king of the English.434 The chronicle of Orderic is full of gifts made to the Abbey of St. Evroul, and in case after case the chronicler is careful to tell us how the gift was confirmed by the donor’s lord or lords; in seeking confirmation the monks ascend the scale of tenure and do not stop until they reach the duke.435 Then, after the Conquest, they acquire lands in England; for instance, they acquire lands from some of the men of the Earl of Chester; they seek the earl’s confirmation and the king’s. The abbot journeys to England and obtains from the Conqueror a liberal charter confirming the gifts and confirmations of his barons.436 This is no solitary phenomenon. Every collection of monastic charters tells the same tale. No gift is considered safe until it has been confirmed by the king and all who stand between the king and the donor.437 Often the donor’s lord joins in the gift itself; it is made annuente domino meo, concedente domino meo; still more often he confirms it after it has been made. What is more, he sometimes confirms prospectively whatever gifts any of his men may make to the favoured monastery. For a while we do not hear much of money being paid for such confirmations; lands are plentiful and lords are pious; but already in Henry I.’s day men are paying for confirmations,438 and now and again we read stories which seem to show that a lord would sometimes call in question a feoffment to which he had not consented.439

Discussion of the charters.But considerable care is necessary in drawing inferences from these documents. Most of the very early charters that we possess relate to gifts in frankalmoin, and, when examined, they will often appear to be confirmations and something more. In royal confirmations it is common to find words that are not merely confirmatory. Sometimes the king denounces a penalty, a forfeiture of £10, against any who shall disturb the donees; often he wills that the donees may enjoy “sake and soke” and other liberties, which, at least in his opinion, none but he can grant. Then again, words which look merely confirmatory, demand a careful criticism. For instance if B holds of A by knight’s service and enfeoffs the abbot of C in free alms, then, when A confirms the gift, we must be diligent to observe whether he reserves his right to exact the service from the land, or uses words importing that the land is to be frankalmoin, not merely as between B and the abbot, but even as regards the confirmer himself. Thus, to take a real example, when Robert Earl of Gloucester confirms a gift which one of his tenants has made to St. Peter’s Abbey, he adds “I will that the said monks hold the same freely, quietly and honourably in frankalmoin for ever.”440 Such words, which are very commonly found, will in all likelihood debar the earl and his heirs from ever exacting any service from this land. Indeed in Bracton’s day a lord confirming a tenant’s gift had to be extremely cautious if he wished to retain the service due from the land; if B who held of A at a rent of a hundred shillings enfeoffed C at a rent of one shilling, the mere word confirmo used by A might, if unexplained, deprive him of ninety-nine shillings a year.441 Again, at least in Norman documents, there is much to suggest that a subinfeudation effected without the lord’s consent was neither void nor voidable by the lord so long as the mesne seignory of the donor endured; the donee’s danger lay in this, that by the donor’s felony or want of heirs this seignory would escheat and the donor’s lord would then be able to avoid the gift.442 Again, we must remark that in this context little stress can be laid on confirmations when the confirmer is the king, for, quite apart from all feudal theory, a royal charter was a very efficient protection against litigation. When once such a charter was produced by the person in possession, the king’s justices would stay their hands; they would proceed no further rege inconsulto.443 We find too that religious houses are not content with one royal confirmation; they obtain a fresh charter from each successive king, for, be the law what it may, no prudent man will trust to the king’s respect for his ancestor’s promises. Lastly, to complete the picture, we may add that the usual practice of the monasteries was, not to apply to the king whenever they received a gift, but to wait until they had a considerable number of gifts and then get all of them confirmed by one instrument.

Conclusions as to the law of the Norman time.In the teeth however of the long series of diplomata stretching back to the Conquest, and in Normandy beyond the Conquest, some of which deal with cases in which the donee is a layman and the confirming lord is not the king, it is quite impossible for us to hold that the restriction expressed in the charter of 1217 was a new thing, or that the free alienability of “the fee simple” is the starting point of English law. We must be content with a laxer principle: with some such idea as this, that the tenant may lawfully do anything that does not seriously damage the interests of his lord. He may make reasonable gifts, but not unreasonable. The reasonableness of the gift would be a matter for the lord’s court; the tenant would be entitled to the judgment of his peers. The charter of 1217 is a fair, though a vague compromise of conflicting claims. That it should have been so favourable to the tenants as it was, may fairly surprise us, if we have regard to other countries, and to the extreme severity of our English law about reliefs, primer seisins, wardships and marriages.444 But the Norman Conquest must for a while have favoured “free trade in land.” William, when he conferred the forfeited estates of English earls and thegns on his French followers, must have known and intended that there should be some reasonable amount of subinfeudation. This was absolutely required by the new military system; the count or baron was to have knights to follow his banner, and the services of knights could only be secured by feoffments. For a long time it would be possible for the vassals to endow sub-vassals, for the sub-vassals to endow other sub-vassals, without any loss being inflicted on the great lords or on the king. We must add to this that for a full century after the Conquest, despite occasional quarrels, the king was in close league with the church; as against his too rebellious barons he relied on the prelates, and the prelates of course desired that men should be free to make gifts to pious uses. And just when the interests of the church as an acquirer of land were beginning to come into serious conflict with the needs of the state, the function of declaring the law of England was being committed to a group of professional lawyers who for several reasons were likely to favour free alienation. Often they were ecclesiastics; always they were the king’s servants, and as such inclined to loosen the feudal bond whenever this could be done without prejudice to their master’s rights. But, besides all this, it seems clear that merely as jurists, and all considerations of political expediency apart, they were disposed to concede to every tenant the fullest possible power of dealing with his land. Just when they were deciding that the common law put no restriction on this power in favour of the lord, they were rapidly and finally destroying the restrictions which had existed in favour of the tenant’s expectant heirs. This process will come before us hereafter, but should be noticed in this context. If the English lawyers are shutting their ears to the claims of the lords, they are shutting their ears to the claims of the kindred also, and this just at a time when in Normandy and other countries the claims of the lord and the claims of the expectant heir are finding a formal recognition in the new jurisprudence. Whether we ascribe this result to the precocious maturity of our system of royal justice, or to some cause deep-seated in our national character, we must look at these two facts together:—if the English law knows no retrait féodal, it knows no retrait lignager.

Usual form of alienation.As regards the form that alienation took, subinfeudation was certainly much commoner than substitution. Still we find the latter at an early date, if not in charters, at least in fines levied before the king’s court. Not unfrequently in John’s reign one party to the transaction grants a tenement to the other party to hold “of the chief lords of the fee.”445 It is not always possible for us to discover the real meaning of such a transaction, as we cannot always tell whether the fine is the settlement of a genuine dispute, or a mere piece of conveyancing machinery; but it seems clear that fines were levied with little, if any, regard for the lord’s interest, and that their effect often was to give him a new immediate tenant of the whole, or even (for so it would seem) of part only of the tenement. As regards modes of conveyance less solemn than a fine, had it not been for Bracton’s distinct assertion, we should probably have come to the opinion that a new tenant, even of the whole tenement, could not be forced upon an unwilling lord. Whether we look to collections of charters or to collections of pleadings, we find the lord’s consent frequently mentioned;446 indeed sometimes the transaction takes the form of a surrender by the old tenant to the lord and a feoffment by the lord of the new tenant. When about the middle of the twelfth century Reginald Puer sells land to Whitby Abbey, he resigns all his right into the hand of Roger Mowbray to the use (ad opus) of the monks, to whom Roger gives it, putting them in seisin by the same rod (lignum) by which the resignation had been made.447 When Alexander Buddicombe sells that fifth part of a knight’s fee which he holds of Hawise Gurney to Thomas FitzWilliam, he “demises himself” in Hawise’s court and renders the land to her by the branch of a tree, whereupon she gives seisin to Thomas by the same branch.448 Still there are Bracton’s plain words:—albeit the tenant has done homage (and this of course makes the case extreme) he may put a new tenant in his place, and the lord must accept him, will he, nill he.449

General summary as to alienation by the tenant.To sum up the whole of a lengthy argument, the sound conclusion seems to be that, in treating the matter as one of purely English history, we must start not from the absolute inalienability of “the fief,” nor from the absolute alienability of “the fee simple,” but from something much less satisfactory, an indeterminate right of the lord to prevent alienations which would seriously impair his interests, a right which might remain in abeyance so long as there was plenty of scope for subinfeudation and the liberty of endowing churches was not abused, a right on which the king’s court was seldom if ever called upon to pronounce, since the lord could enforce it in his own court, a right which was at length defined, though in loose terms, by the charter of 1217. But very probably the king’s legal position was from the first exceptional, and it certainly became exceptional in the course of the thirteenth century; with no text of law to rely upon but the charter, he succeeded, under stress of pecuniary troubles, in gradually establishing a right which could not be justified by the terms of that instrument.

Gifts made by a lord with the consent of his court.That we may be right in taking as the starting point of our law principles so vague as those just stated, may appear from this, that if we often find a lord confirming his tenants’ gifts, we sometimes find a lord consulting or professing to consult his tenants before he makes a feoffment. When Aubrey de Vere gives land to the Abbey of Abingdon, “all his knights” are said to join in the grant;450 Earl Hugh of Chester speaks with “his barons” before he makes a similar gift;451 Roger de Merlay when he endows Newminster does so with the consent of “his men”;452 “the knights” and the “good men” of the Abbot of Abingdon give their consent to an exchange which he is making with one of his tenants,453 and so the Abbot of Ramsey by the counsel of his barons retains the homage of Robert Foliot at the cost of two thousand eels a year.454 Each feudal group strives to be a little state; its ruler and his subjects alike have an interest in all that concerns its territory. Still this notion, that the lord ought to hold a parliament before he makes a feoffment, never hardens into law.

Alienation of a seignory.But now another question arises. Can a lord dispose of his rights over a tenant and his tenement without that tenant’s consent? We will suppose that A has enfeoffed B who has enfeoffed C, and ask whether B can, without C’ s concurrence, either put X in his (B’ s) place, so that C will hold of X who will hold of A, or place X between himself and C, so that C will hold of X, who will hold of B, who will hold of A. Now here we have to consider two different difficulties. First there is what we may call the feudal difficulty, that of giving C a new lord, of holding him bound to serve X when he has contracted to serve B. Secondly there is a difficulty that is quite unconnected with the nature of the feudal bond but may be thus stated:—Every gift, every transfer of rights, involves a transfer of seisin, of possession. When a tenant is to be enfeoffed as a tenant in demesne, then in order to complete the feoffment it is absolutely necessary that the feoffor should deliver possession of the land to the feoffee, and this act is performed on the land; the feoffor solemnly puts the feoffee in seisin and then quits the land. But there can be no such delivery of possession in the case that is under our notice; C is tenant in demesne; it is not intended that X shall become tenant in demesne; B and X have no business to go onto the land and disturb C in his possession; what is to be given to X is not the right to take the fruits of the land but the right to C’ s services. We cannot in this place discuss this notion that a gift or a transfer of rights involves a transfer of possession; but it is deeply engrained in the law of the thirteenth century. It would seem then, that the only mode in which B can complete his gift to X, is by persuading or compelling C to recognize X as his lord. When such a recognition has taken place, then we may say that X possesses the object of the transfer; he is seised of C’ s services, he is also seised of the land “in service” (seisitus in servitio). The two difficulties then, though in a given case they may conspire, are essentially different; the difference is brought out by the question: Has B any legal process for compelling C to accept X as his lord?

Law of attornment.According to Bracton, we must distinguish. If C has done homage to B, then C may, for good cause, object to having his homage made over to X. He may object that X is his enemy—a light enmity says Bracton is not a sufficient cause—or that X is too poor to fulfil the duty of warranty, or again that homage is indivisible, and that he cannot be bound to do homage to X for part of the tenement, while he still holds the other part of B; but unless such cause is shown, C’ s homage can be transferred to X. As regards the service due from the tenement, as distinct from homage, this can always be transferred, even against the tenant’s will; the court has a process for compelling the tenant to acknowledge that he holds of the new lord; it has a process for “attorning,” i.e. turning over, the tenant to the new lord.455 He gives a case from 1223:— X demanded homage from C, saying that B had attorned C’ s homage and service to him, X; thereupon C said that he held nothing of X and that he would not depart from B who was his lord; then B was summoned and stated that he had made the gift to X; but C still objected that he held two tenements of B by a single homage and service, only one of which tenements had been given to X, and that he would not divide his homage; whereupon the court adjudged that X should have seisin of C’ s service, but that C could not be compelled to do homage to X. Service, says Bracton, can always, but homage cannot always be attorned.456

Objections to attornment.It is somewhat curious, as noticed above, that Bracton should allow the tenant to object to his homage being transferred, for he does not allow, at least expressly, any similar objection on the part of a lord whose tenant desires to put a new tenant in his place. Possibly the necessity for an attornment, which really rested on quite other grounds, kept alive one side of an ancient rule while the other side had withered. But Bracton is very favourable to tenants. He holds, for example, that the tenant can always waive or resign his tenement and so free himself from the duties of service and homage, while the lord cannot waive the homage or refuse the service, and so free himself from the duty of warranty; and the tenant may object if any attempt be made to substitute an insolvent for a solvent warrantor.457

Practice of alienating seignories.On the whole we have little reason to suppose that the rights of the tenants had ever in this country been a serious obstacle to alienations by the lords.458 In the charters we find the lords apparently exercising the fullest power of giving away the homages and the services of their tenants. If there was any reason to suppose that the tenant would object to recognizing a new lord, then a fine would be levied, and the tenant would be called on by a writ known as Per quae servitia to show cause why he should not be attorned.459 Fines transferring services are quite common; the subject-matter of the transfer is usually described as the service, or the homage and service of such an one.460 It would be a mistake to suppose that the lofty feudal ladders that we find in the thirteenth century, had been always, or even generally, manufactured only by the process of adding new rungs at their nether ends; new rungs were often inserted in their middles.

§ 10.

Aids

Duty of aiding the lord.The duties implied in the relation between man and lord are but slowly developed and made legal duties. There long remains a fringe of vague obligations. The man should come to the aid of the lord in all his necessities; the man’s purse as well as his body should be at his lord’s disposal if the lord is in a strait. Gradually the occasions on which an aid of money may be demanded are determined. Glanvill mentions the aid which helps a lord to pay the relief due to his overlord, the aid for knighting the lord’s eldest son and marrying his eldest daughter; also he raises the question whether the lord may not demand an aid for the maintenance of a war in which he is concerned; such a demand, he thinks, cannot be pressed.461 From the Normandy of Glanvill’s time we hear of the aid for the lord’s relief, for marrying his daughter and knighting his eldest son.462 The charter of 1215 mentioned as the three aids, which the king might take without the common counsel of the realm, that for redeeming his body, that for marrying his daughter and that for knighting his son; and such aids were to be reasonable.463 As is well known, the clause which dealt with this matter appeared in no later edition of the charter. During John’s reign the prior of St. Swithin’s took an aid from his freeholders, farmers and villeins for the payment of his debts;464 the Bishop of Winchester took an aid for the expenses to which he had been put in the maintenance of the king’s honour and the dignity of the church;465 the Abbot of Peterborough took an aid to enable him to pay a fine to the king;466 the Earl of Salisbury to enable him to stock his land.467 Nor do such aids cease with the year 1215; in Henry III.’s reign the Bishop of Bath took an aid for the support of his knights in the king’s service.468 In 1217, after a Welsh war, the king’s military tenants who had done their service received permission, not only to collect the scutage from their knights, but also to raise a reasonable aid from all their freemen.469 However, the clause expunged from the charter seems practically to have fixed the law. We learn also that it was next to impossible for the lords to collect aids without obtaining the king’s writ and the sheriff’s assistance. That writ would name no sum; the aid was to be “reasonable.” So late as 1235 we see Henry Tracey, having first obtained the king’s writ, holding a little parliament of his knights in Devonshire; they grant him an aid of 20 shillings on the knight’s fee for the marriage of his eldest daughter.470 Bracton speaks of these aids as due rather of grace than of right; they are the outcome of a personal not of a predial obligation; they are not to be reckoned as “services.”471 This is the ancient theory; but it must already have been obsolescent. A statute of 1275 fixed the rate of the aid to be taken for marrying the eldest daughter and knighting the eldest son at 20 shillings for the knight’s fee and 20 shillings for 20 librates of socage land,472 and thus in effect destroyed the doctrine of the lord’s need and the tenant’s gracious help. This statute bound the mesne lords; a later statute was required to bind the king.473 The constitutional side of the history of aids we need not here discuss, but the aid is one of the most widely distributed of the feudal phenomena.474

§ 11.

Escheat and Forfeiture

Escheat.In the background but ever ready to become prominent stands the lord’s right to escheats. This forms as it were a basis for all his other rights. The superiority which he always has over the land may at any time become once more a full ownership of it. Though he has given the land to the tenant and his heirs, still there may well be a failure of heirs, for the tenant cannot institute an heir; only God makes heirs; and in this case the land falls to, escheats (excadere) to the lord. Already in Glanvill’s day a lawyer may sometimes speak of the lord as the tenant’s ultimus heres;475 but such a phrase hardly expresses the law. When land escheats the lord’s superiority swells into simple ownership; all along he has had rights in the land.476 Nor is a failure of heirs the only cause of an escheat. If the tenant is outlawed or convicted of felony then, after the king has exercised the very ancient right of wasting the criminal’s land for year and day, the tenement returns to its lord. A distinction is established between treason and felony; if a tenant commits treason all his lands, of whomsoever they were holden, are forfeited to the king, while the felon’s lands escheat to his lord. How far back this distinction can be traced seems doubtful; but John and his successors apparently insisted upon it when they enriched themselves by seizing the terrae Normannorum, the English lands of those who preferred to be Frenchmen rather than Englishmen when the victories of Philip Augustus forced upon them the choice between two nationalities. As regards felony, we have seen that the idea implied by that term had been changing; it now stood for “serious crime,” it had once stood for “breach of the feudal bond.” On the one hand, the lords had gained; they got escheats if their tenants committed such crimes as homicide or theft; on the other hand they had lost. By openly disavowing his lord the tenant might indeed lose his tenement; even in Bracton’s day such a disavowal was sometimes called felonious,477 and in much later times a disavowal and a consequent forfeiture might be found in the fact that the tenant had paid his rent, or done his homage, to a wrongful, instead of to the rightful, claimant of the seignory. But, on the other hand, the lord seems to have had very little power of ejecting a tenant for the mere non-performance, even the wilful and protracted non-performance of his services. This is a matter which requires some examination.

Lord’s remedies against defaulting tenant.In Bracton’s day the lord when the services are in arrear has three courses open to him. (1) We may mention first—though this is not his readiest remedy—an action in the king’s court for the recovery of customs and services. This is a laborious action. It is regarded as proprietary, not possessory. A lord will hardly use it unless there is some dispute between him and his tenant about the nature or quantity of the services.Action in the king’s court. In that case it will conclusively establish the lord’s title, and the victorious lord will have the sheriff’s aid in distraining for the arrears. But, unless there has been some disavowal of the tenure on the tenant’s part, there is no action in the king’s court that will give the lord the land in demesne. Feoffors and feoffees are indeed free to make the express bargain that if the services are in arrear the feoffor may enter once more on the land and take it to himself; but we shall see few such bargains made before the middle of the thirteenth century.478 Such then is our common law, and it is well worthy of remark; it does not turn out the tenant from the land because he cannot or will not perform his services. Two statutes of Edward I. were required to give the lord an ampler remedy:—the action called cessavit per biennium was invented; if the tenant allowed his services to fall into arrear for two years, the lord might claim the land in demesne.479 There can, we think, be little doubt that this new action was borrowed immediately from the canon law and mediately from the legislation of Justinian. It is one of the very few English actions that we can trace directly to a foreign model.480

Distress.(2) The lord’s handiest remedy is that of distraining his tenant to perform the services that are in arrear. This means that, carefully observing certain rules as to when and where and what he may seize, he takes the chattels that are found upon the tenement and keeps them until the tenant either tenders the arrears or finds security to contest in a court of law the justice of the seizure. The idea of distress (districtio) is that of bringing compulsion to bear upon a person who is thereby to be forced into doing something or leaving something undone; it is not a means whereby the distrainor can satisfy the debt that is due to him. He may not appropriate the namium, the thing that he has taken, nor may he sell it; he must keep it as a gage (vadium) so that the person from whom it has been taken may be constrained to perform his duty. This right to distrain for services in arrear is in the latter half of the thirteenth century a right that is freely exercised by every landlord, and he exercises it although he has as yet taken no judicial proceedings of any kind against his tenant. Nevertheless, we may see much to make us think that this power of extra-judicial distraint is not very old. Bracton speaks as though it were still usual for a lord to obtain a judgment in his own court before he distrains a tenant into the performance of his services; and we may see that in his day some lords were still taking this course.481

Proceedings in the lord’s own court.(3) This leads us to speak of the possibility of proceedings being taken in the lord’s own court for the exaction of the rent or the expulsion of the defaulting tenant. It is possible that at one time the non-performance of services was regarded as a sufficient cause of forfeiture. Against any disseising of the tenant “without a judgment,” there had for a long time past been a strong feeling; it finds utterance in the most famous words of the Great Charter. But probably the lord who kept a court was entitled to demand of it a judgment “abjudicating” from the tenement a tenant who, after sufficient warnings, would not render his due service.482 However, it seems that our king’s court will not sanction so strong a measure. The most that it permits the lord to do is this:—after distraining the tenant by his chattels, the lord may obtain from his seignorial tribunal a judgment authorizing him to distrain the tenant by his land. This obtained, he can seize the land into his own hand, but only by way of distress, only as a mere gage (simplex namium), and as a mode of coercing the tenant into the path of duty. He may take no fruits from the land, he may make no profit of it, he must ever be ready to give it up if the tenant will satisfy all just demands.483 Even this is possible only to the lord who is great enough to keep up an efficient court for his freeholders. In England the aboriginal weakness and rapid degeneration of the feudal tribunals, and the dominance of a royal court which does not love seignorial justice secure to the freeholding tenant a very tight grip on the land. At the end of Henry III.’s reign he is too well off. If he chooses to let the land “lie fresh,” to keep no distrainable chattels on it, his lord is powerless. An action must be borrowed from the canonists in order that he may be constrained to fulfil his engagements or be turned out of his tenement.484

However, in the thirteenth century the possibility, never very remote, that the land would escheat, was, when coupled with the power of distress, a quite sufficient manifestation of the idea that the land, though it was the tenant’s, was also the lord’s. The tenant’s interest in it might at any time expire and leave the lord’s interest subsisting.

Survey of the various tenures.We are now in a position to foresee that of the four great free tenures one is destined to grow at the expense of the rest. For a moment it might be thought that the trenchant statute of 1290, the Quia emptores terrarum, would stereotype the tenures for ever. To some extent this is true in law but only to some extent. Even after the statute a new tenure might sometimes be created. Every feoffment made by a tenant in frankalmoin in favour of a layman would create a tenure between the donee and the donor’s lord which could not be frankalmoin, since the donee was a layman, and which was reckoned a tenure in socage; thus in a perfectly regular way socage would grow at the expense of frankalmoin.485 We have seen also that in the course of the thirteenth century many of the serjeanties were deliberately commuted for less archaic tenures, in some cases by the consent of both parties, still more often against the tenant’s will: he had put himself into the wrong by alienating without the king’s licence, and the king exercised the right of “arrenting the serjeanty.”486 But we will here speak of changes less definitely made. When once it was established that the little serjeanties gave the king no prerogative wardship, “petty serjeanty” came to be regarded as but “socage in effect.”487 A similar cause gave rise to the doctrine that tenure of a mesne lord is never tenure by serjeanty;488 the rights of a mesne lord to the wardship and marriage of his tenant by serjeanty seem to have become doubtful, and to have finally disappeared, and by this time the term socage already covered so heterogeneous a mass of tenures that it could be easily stretched yet a little further so as to include what Bracton would certainly have called serjeanties.489 Again, there can be little doubt that a very large number of military tenures became tenures in socage, and this without anyone observing the change. In Bracton’s day the test of military tenure is the liability to scutage, and, as already said, the peasant or yeoman very often had to pay it; if he had not to pay it, this was because his lord had consented to bear the burden. In Edward I.’s day scutage was becoming, under his grandson it became, obsolete. There was nothing then in actual fact to mark off the services of the yeoman who was liable to pay scutage as well as to pay rent, from those of the yeoman who was free even in law from this never collected tax. The one was theoretically a military tenant, the other was not; in the one case the lord might have claimed wardship and marriage, in the other he could not; but then we have to observe, that, if the tenant held at a full or even a substantial rent, wardship and marriage would be unprofitable rights. The lord wanted rent-paying tenants; he did not want land thrown on his hands together with a troop of girls and boys with claims for food and clothing. Thus, scutage being extinct, wardships and marriages unprofitable, mere oblivion would do the rest; many a tenure which had once been, at least in name, a military tenure would become socage. Thus socage begins to swallow up the other tenures, and preparation is already made for the day when all, or practically all, tenants will hold by the once humble tenure of the sokemanni.

§ 12.

Unfree Tenure

Freehold tenure.The tenures of which we have hitherto spoken are free tenures. To free tenure is opposed villein tenure, to the free tenement the villein tenement, to the freeholder (libere tenens) the tenant in villeinage. This is the contrast suggested by the word “free”; but the terms “free tenement” and “freeholder” are becoming the centre of technical learning. We may well find that a man holds land and that there is no taint of villeinage or unfreedom in the case, and yet that he has no freehold and is not a freeholder. These terms have begun to imply that the tenant holds heritably, or for life. Perhaps we shall be truer to history if we state this doctrine in a negative form:— these terms imply that the tenant does not hold merely at the will of another, and that he does not hold for some definite space of time: a tenant at will is not a freeholder, a tenant for years is not a freeholder. Such tenancies as these are becoming common in every zone of the social system, and they imply no servility, nothing that is inconsistent with perfect freedom. Thus, for example, King John will provide for his foreign captains by giving them lands “for their support in our service so long as we shall think fit,” and in such a case this tenancy at will by a soldier is from some points of view the best representative of the beneficia and feoda of past centuries.490 But now-a-days such tenancies are sharply contrasted with feoda; the tenant has no fee and no free tenement. And so again we may see a great man taking lands for a term of years at a money rent; he has done nothing in derogation of his freedom; the rent may be trifling; still he is no freeholder.

Technical meaning of “freehold.”A full explanation of this phenomenon, that a man should hold land, and hold it not unfreely, and yet not hold it freely, cannot be given in this context since it would involve a discussion of the English theory of possession or seisin. But we must not fail to notice that the term “free tenement” has ever since Henry II.’s day implied possessory protection by the king’s court. This is of great moment. From our statement of the relation between the freehold tenant and his lord we have as yet omitted the element of jurisdiction. The existence of this element our law fully admitted and at one time it threatened to become of vital importance. It was law that the lord might hold a court of and for his tenants; it was law that if A was holding land of M and X desired to prove that he and not A ought to be M’ s tenant, M’ s court (if he held one) was the tribunal proper to decide upon the justice of this claim; only if M made default in justice, could X (perhaps after recourse to all M’ s superior lords) bring his case before the king’s court. This principle of feudal justice is admitted, though its operation has been hampered and controlled; in particular, the king has given in his court a possessory remedy to every ejected freeholder. Every one who can say that he has been “disseised unjustly and without a judgment of his free tenement” shall be restored to his seisin by the king’s justices. Thus the term “free tenement” becomes the pivot of a whole system of remedies. Clearly they are denied to one who has been holding “unfreely,” who has been holding in villeinage; but a doctrine of possession now becomes necessary and has many problems before it. What if the ejected person was holding at the will of another? Perhaps it is natural to say that, albeit he occupied or “detained” the tenement, still he was not possessed of it. At any rate this was said. The tenant at will tenet nomine alieno; possidet cuius nomine possidetur; eject the tenant at will, you disseise (dispossess) not him, but his lord, and his lord has the remedy. And what of the tenant for years? The same was said. He holds on behalf of another; eject him, you disseise that other. Such was the doctrine of the twelfth century; but already before the middle of the thirteenth the lawyers had discovered that they had made a mistake, that the “termor” or tenant for years deserved possessory protection, and they invented a new action for him. The action however was new, and did not interfere with the older actions which protected the seisin of free tenement; it was too late to say that the termor had a free tenement or was a freeholder. This episode in our legal history had important consequences; it rules the terminology of our law even at the present day and hereafter we shall speak of it more at large: it is an episode in the history of private law. In the thirteenth century the main contrast suggested by the phrase “free tenement” was still the villein tenement, and tenure in villeinage is intimately connected with some of the main principles of public law; indeed from one point of view it may be regarded as a creature of the law of jurisdiction, of the law which establishes courts of justice and assigns to each of them its proper sphere.

Villeinage as tenure and as status.The name “villeinage” at once tells us that we are approaching a region in which the law of tenure is as a matter of fact intertwined with the law of personal status: “villeinage” is a tenure, it is also a status. On the one hand, the tenant in villeinage is normally a villein; the unfree tenements are held by unfreemen; on the other hand, the villein usually has a villein tenement; the unfreeman is an unfree tenant. Then a gain, the villanus gets his name from the villa, and this may well lead us to expect that his condition cannot be adequately described if we isolate him from his fellows; he is a member of a community, a villein community. The law of tenure, the law of status, the law which regulates the communal life of vills or townships are knotted together. Still the knot may be unravelled. It is very possible, as Bracton often assures us, for a freeman to hold in villeinage, and thus we may speak of villein tenure as something distinct from villein status. Again, as we shall hereafter see, the communal element which undoubtedly exists in villeinage, is much neglected by the king’s courts, and is rather of social and economic than of legal importance.

Villein tenure.We may suppose therefore that the tenant in villeinage is a freeman. What then are the characteristics of his tenure?491 Now in the first place we may notice that it is not protected in the king’s courts. For a moment perhaps there was some little doubt about this,Unprotected by the king’s courts. some chance that Pateshull and Raleigh would forestall by two long centuries the exploits ascribed to Brian and Danby, and would protect the predecessor of the copyholder even against his lord.492 This would have been a bold stroke. The ready remedy for the ejected freeholder laid stress on the fact that he had been disseised of his “free” tenement, and, however free the tenant in villeinage might be, his tenement was unfree. A quite new remedy would have been necessary for his protection; the opportunity for its invention was lost, and did not recur until the middle ages were expiring.493 It was law then, that if the tenant in villeinage was ejected, either by his lord or by a third person, the king’s court would not restore him to the land, nor would it give him damages against his lord in respect of the ejectment. He held the land nomine alieno, on his lord’s behalf; if a third person ejected him, the lord was disseised. Before the end of the thirteenth century, the king’s courts were beginning to state their doctrine in a more positive shape:—the tenant in villeinage is in our eyes a tenant at will of the lord.494

Want of remedy and want of right.The shade of meaning which such words bear at any given moment is hard to catch, for this depends on the relation between the king’s courts and other courts. At a time when the feudal courts have become insignificant, denial of remedy in the king’s court will be equivalent to a denial of right, and to say that the tenant in villeinage is deemed by the king’s court to hold at his lord’s will is in effect to say that the lord will do nothing illegal in ejecting him. At an earlier time the royal tribunal was but one among many organs of the law, and the cause for our wonder should be that it has undertaken to protect in his possession every one who holds freely, not that it has stopped at this point and denied protection to those who, albeit freemen, are doing what are deemed villein services. We have but to look abroad to see this. By its care for every freeholder, though he were but a socage tenant with many lords above him, our king’s court would gradually propagate the notion that those whom it left uncared for were rightless. But this would be an affair of time. Even in the thirteenth century, the freeholder could not always bring a proprietary action before the royal tribunal without the help of some legal fiction, and in Bracton’s day men had not yet forgotten that the royal remedies which were in daily use were new indulgences conceded by the prince to his people.495

Protection of villein tenure by manorial courts.As a matter of fact, tenure in villeinage is protected, and if we choose to say that it is protected by “positive morality” rather than by “law properly so called,” we are bound to add that it is protected by a morality which keeps a court, which uses legal forms, which is conceived as law, or as something akin to law.496 The lord has a court; in that court the tenant in villeinage, even though he be personally unfree, appears as no mere tenant at will, but as holding permanently, often heritably, on fairly definite terms. He is a customary tenant, custumarius, consuetudinarius; he holds according to the custom of the manor. Were we Germans, we might say that he holds under Hofrecht, the law of the manor, though his rights are not recognized by Landrecht, the general law of the realm. This we cannot say; the manorial custom very rarely, if ever, dignifies itself with the name of law; but still it is a custom which has been and ought to be enforced by a court, enforced if need be by compulsory processes which will eject the wrongful in favour of the rightful occupant. The tenant in villeinage does not scruple to say that he is seised of the land de iure “according to the custom of the manor,”497 though his lord may be seised of it according to the law of the king’s courts. Such evidence as we have goes to show that, when his lord was not concerned, he was well enough protected in his holding. The rolls of manorial courts bear witness to a great deal of litigation concerning the villein tenements; it seems to be conducted with strict regularity; the procedure does not err on the side of formlessness; it is rigid, it is captious; the court is no court of equity which can overlook a pleader’s blunder and do natural justice; it administers custom. No doubt there are cash transactions between the lord and the litigants; the lord has procedural advantages for sale; but then so has the king. There is nothing disgraceful, nothing illegal, in buying the right to have an inquest, a good inquest, nor even in promising an augmented price if the verdict be favourable. Then as to the case between lord and tenant, the tenant cannot sue the lord in the lord’s court; the tenant in villeinage ejected by the lord has no remedy anywhere. But is this, we may ask, a denial of legal right? The king disseises the Earl of Gloucester; the earl has no remedy, no remedy anywhere; yet we do not deny that the honour of Gloucester is the earl’s by law or that in disseising him the king will break the law.

Evidence of the “extents.”A good proof that the lords in general felt themselves bound more or less conclusively by the terms of the customary tenures is to be found in the care they took that those terms should be recorded. From time to time an “extent” was made of the manor. A jury of tenants, often of unfreemen, was sworn to set forth the particulars of each tenancy and its verdict condescended to the smallest details. Such extents were made in the interest of the lords, who were anxious that all due services should be done; but they imply that other and greater services are not due, and that the customary tenants, even though they be unfreemen, owe these services for their tenements, no less and no more. Statements to the effect that the tenants are not bound to do services of a particular kind are not very uncommon.

Attempt to define villein tenure.As characteristics of villein tenure we have therefore these two features:—it is not protected by the king’s courts; in general it is protected by another court, the court of the lord, though even there it is not protected against the lord. Still as a matter of legal theory we cannot regard these features as the essence of the tenure. We should invert the order of logic were we to say that this tenure is villein because the king’s justices treat it as a mere tenure at will; rather they treat it as a mere tenure at will because it is a villein, an unfree, tenure. We must look therefore in this as in other cases to the services which the tenant performs, if we are to define the nature of his tenure. He holds in villeinage because he performs villein services.

The manorial arrangement.A brief digression into a domain which belongs rather to economic than to legal history here becomes inevitable. The phenomena of medieval agriculture are now attracting the attention that they deserve: here we are only concerned with them in so far as some knowledge of them must be presupposed by any exposition of the law of the thirteenth century.498 Postponing until a later time any debate as to whether the term manor bore a technical meaning, we observe that this term is constantly used to describe a proprietary unit of common occurrence:—the well-to-do landholder holds a manor or many manors. Now speaking very generally we may say that a man who holds a manor has in the first place a house or homestead which is occupied by himself, his bailiffs or servants. Along with this he holds cultivable land, which is in the fullest sense (so far as feudal theory permits) his own; it is his demesne land. Then also, as part of the same complex of rights, he holds land which is holden of him by tenants, some of whom, it may be, are freeholders, holding in socage or by military service, while the remainder of them, usually the large majority of them, hold in villeinage, by a merely customary tenure. In the terms used to describe these various lands we notice a certain instructive ambiguity. The land that the lord himself occupies and of which he takes the fruits he indubitably holds “in demesne”; the land holden of him by his freehold tenants he indubitably does not hold “in demesne”; his freehold tenants hold it in demesne, unless indeed, as may well be the case, they have yet other freeholders below them. But as to the lands holden of him by villein tenure, the use of words seems to fluctuate; at one moment he is said to hold and be seised of them in demesne, at the next they are sharply distinguished from his demesne lands, that term being reserved for those portions of the soil in which no tenant free or villein has any rights. In short, language reflects the dual nature of tenure in villeinage; it is tenure and yet it is not tenure. The king’s courts, giving no protection to the tenant, say that the lord is seised in demesne; but the manorial custom must distinguish between the lands holden in villeinage and those lands which are occupied by the lord and which in a narrower sense of the word are his demesne.499

The field system. We have usually therefore in the manor lands of three kinds, (1) the demesne strictly so called, (2) the land of the lord’s freehold tenants, (3) the villenagium, the land holden of the lord by villein or customary tenure. Now in the common case all these lands are bound together into a single whole by two economic bonds. In the first place, the demesne lands are cultivated wholly or in part by the labour of the tenants of the other lands, labour which they are bound to supply by reason of their tenure. A little labour in the way of ploughing and reaping is got out of the freehold tenants; much labour of many various kinds is obtained from the tenants in villeinage, so much in many cases that the lord has but small, if any, need to hire labourers. Then in the second place, these various tenements lie intermingled; neither the lord’s demesne nor the tenant’s tenement can be surrounded by one ring-fence. The lord has his house and homestead; each tenant has his house with more or less curtilage surrounding it; but the arable portions of the demesne and of the various other tenements lie mixed up together in the great open fields. There will be two or three or perhaps more great fields, and each tenement will consist of a number of small strips, of an acre or half-acre apiece, dissipated about in each of these fields.500 These fields are subjected to a common course of agriculture, a two-field system or a three-field system, so that a whole field will lie idle at one time, or be sown with winter seed or, as the case may be, with spring seed. After harvest and until the time for tilling comes, the lord and the tenants turn their beasts to graze over the whole field.

The virgates.Then we further notice that the various tenements, at least those held in villeinage, are supposed to be of equal extent and of equal value, or rather to fall into a few classes, the members of each class being equal among themselves. Thus it is usual to find a number of tenants in villeinage each of whom is said to hold a virgate or yard of land. Each of them has his house and the same number of strips of arable land; each of them does precisely the same service to his lord. Then there may appear a class of half-virgaters, each of whom does about half what is done by a virgater; and there may be classes which have smaller tenements but which yet have some arable land. Then, most likely, there will be a class of cottagers without any arable; but the cottage and croft of one of them will be regarded as equal to the cottage and croft of another and will provide the lord with the same services. And we sometimes seem to see that the distribution of the arable strips is so arranged as to equalize the value of the various tenements. All the virgates are to be equal in value as well as equal in acreage so far as is possible. One virgater must not have more than his share of the best land. The strips have been distributed with some regularity, so that a strip of B’ s virgate will always have a strip of A’ s to the right and a strip of C’ s to the left of it. Then again, the manor will probably comprise meadow land and pasture land. Each virgate may have a piece of meadow annexed to it, the meadow being treated as an appurtenance of the arable land; or again, some of the meadows may be divided each year by lot between the various tenants, and the lord may have certain strips thereof in one year and other strips in another year;501 but, when the grass has been mown, all the strips will be thrown open to the cattle of the lord and his tenants. There is also land permanently devoted to pasturage; a right to turn out beasts upon it is commonly annexed to every tenement or to every considerable tenement. Lastly, we must just notice that in the lord’s court the manor has an organ capable of regulating all these matters, capable for example of deciding how many beasts each tenement may send to the pasture, and, when the rights of the freehold tenants are not concerned, the decrees and judgments of this court will be binding, for the king’s courts will give no help to those who hold in villeinage.

Villein services. Now speaking generally we may say that the services which the tenant in villeinage owes to his lord consist chiefly of the duty of cultivating the lord’s demesne. Before the thirteenth century is over we may indeed find numerous cases in which the payment of a money rent forms a substantial part of his service and he is hardly bound to do more labour than is exacted from many of the freeholders, some ploughing and some reaping. It is very possible that there are some classes of tenants now reckoned to hold in villeinage, whose predecessors were in this same position at a remote time; they are gavel-manni, men who pay gafol, or they are censuarii, and such their forefathers may have been all along.502 To suppose that in all cases the system of rents paid in money or in produce has grown out of a system of labour services is to make an unverified assumption. On the other hand, in very many cases we can see that the money rent is new. We may see the process of commutation in all its various stages, from the stage in which the lord is beginning to take a penny or a halfpenny instead of each “work” that in that particular year he does not happen to want, through the stage in which he habitually takes each year the same sum in respect of the same number of works but has expressly reserved to himself the power of exacting the works in kind, to the ultimate stage in which there is a distinct understanding that the tenant is to pay rent instead of doing work. But we may for a moment treat as typical the cases in which the tenant hardly pays anything. Of such cases there are plenty. The tenant may pay some small sums, but these are not regarded as the rent of his tenement. They bear English names; sometimes they seem to have their origin in the lord’s jurisdictional powers rather than in his rights as a landowner, as when we read of tithingpenny, wardpenny, witepenny; sometimes they look like a return made to the lord, not for the tenement itself, but for rights over the wastes and waters, as when we read of fishsilver, woodsilver, sedgesilver. But in the main the tenant must work for his tenement.

A typical case of villein services.Now the labour that he has to do is often minutely defined by the manorial custom and described in the manorial “extent.” Let us take one out of a thousand examples. In the Abbot of Ramsey’s manor of Stukeley in Huntingdonshire the services of a virgater are these:503 —From the 29th of September until the 29th of June he must work two days a week, to wit on Monday and Wednesday; and on Friday he must plough with all the beasts of his team; but he has a holiday for a fortnight at Christmas and for a week at Easter and at Whitsuntide. If one of the Fridays on which he ought to plough is a festival or if the weather is bad, he must do the ploughing on some other day. Between the 29th of September and the 11th of November he must also plough and harrow half an acre for wheat, and for sowing that half-acre he must give of his own seed the eighth part of a quarter: whether that quantity be more or less than is necessary for sowing the half-acre he must give that quantity, no more, no less: and on account of this seed he is excused one day’s work. At Christmas time he must make two quarters of malt and for each quarter he is excused one day’s work. At Christmas he shall give three hens and a cock or four pence and at Easter ten eggs. He must also do six carryings (averagia) in the year within the county between the 29th of June and the end of harvest at whatever time the bailiff shall choose, or, if the lord pleases, he shall between the 29th of June and the 29th of September work five days a week, working the whole day at whatever work is set him, besides carrying corn, for he shall carry but four cartloads of corn for a day’s work. If at harvest time the lord shall have two or three “boon works” (precationes), he shall come to them with all the able-bodied members of his family save his wife, so that he must send at least three men to the work. He pays sheriff’s aid, hundredpenny and wardpenny, namely 6¼ d.

Week work and boon days.Now the main features of this arrangement we find repeated in countless instances. The tenant has to do “week work,” as it has been called: to work two or three days in every week during the greater part of the year, four or five during the busy summer months. Then at harvest time there are also some “boon days” (precariae, precationes); at the lord’s petition or boon the tenant must bring all his hands to reap and carry the crops and on these days the lord often has to supply food; at Stukeley it is bread, beer and cheese on the first day, meat on the second, herrings on the third. But matters are yet more minutely fixed. Our Stukeley tenant has to “work” so many days a week; the choice of work rests with the lord, but custom has fixed the amount that shall be accounted a day’s work. For instance on the neighbouring manor of Warboys gathering and carrying three bundles of thorns are regarded as a day’s work.504 At Stukeley if the tenant has to fell timber, the day’s work is over at noon, unless the lord provides dinner, and then the work lasts all day. Sometimes it is remarked that a task which counts as a day’s work can really be done in half a day.505 The exact distance that he must go with his lord’s wagons in order that he may claim to have performed an averagium is well known, and, when the lord is bound to supply food or drink, the quantity and quality thereof are determined. On the Ramsey manors a sick tenant will be excused a whole year’s work if his illness lasts so long; after the year he must get his work done for him as best he may. A half-virgater will do proportionately less work, a cottager still less; thus at Stukeley the cottager works on Mondays throughout the year and on Fridays also in harvest time.

Merchet and tallage.There is more to be said. Our Stukeley virgater pays “merchet” as best he may, that is to say, if he wishes to give his daughter in marriage he must pay money to the lord and the amount that he has to pay is not fixed. If he has a foal or calf born of his own mare or cow, he must not sell it without the lord’s leave. If he has an oak, ash or pear-tree growing in his court, he must not fell it, except for the repair of his house, without the lord’s leave. When he dies his widow shall pay a heriot of five shillings and be quit of work for thirty days. These are common features, and the merchet is of peculiar importance, as will be seen hereafter. Sometimes it is only paid if the girl is married outside the vill; sometimes the amount is fixed. And so as to selling beasts; occasionally the lord’s right is but a right of preemption. And then in many cases the villein tenants are liable to be tallaged, sometimes once a year, sometimes twice in seven years; sometimes the amount of this tax is defined, sometimes they can be “tallaged high and low” (de haut en bas). Often they are bound to “suit of mill,” that is to say, they must not grind their corn elsewhere than at the lord’s mill. About all these matters we sometimes find rules which set certain definite limits to the tenant’s duty and the lord’s right.506

What is the essence of villein tenure.Such were some of the commonest services due from the holder of a villein tenement. As yet, however, we have attained to nothing that can be called a definition of the tenure. To say that it is a tenure defined by custom but not protected by the king’s courts is no satisfactory definition, for this, as already said, is to mistake the consequence for the cause. Now Bracton constantly assumes that everyone will understand him when he speaks of villein services, but he never undertakes to tell us precisely what it is that makes them villein, and, when we turn to the manorial extents, we not unfrequently meet with tenures that we know not how to classify. Apart from the tenants who certainly are freeholders and the tenants who certainly hold in villeinage, we see here and there a few men whose position seems very doubtful; we do not like to predict either that they will or that they will not find protection in the royal courts. We have to remember that the test which in later days will serve to mark off freehold from copyhold tenure is as yet inapplicable. No one as yet holds land “by copy of court roll”; the lords are only just beginning to keep court rolls and it is long ere the court roll becomes a register of title. If alienations and descents are entered upon it, this is done merely to show that the steward has received or has yet to collect a fine or a heriot, and the terms on which a new tenant takes land are seldom mentioned. If from a modern conveyance of a copyhold tenement we abstract the copy of the court roll and even the court roll itself, we still have left the intermediation of the lord between the vendor and the purchaser: the land is supposed to pass through the lord’s hand. But when dealing with the thirteenth, to say nothing of the twelfth, century, we cannot make the lord’s intervention a proof of villein tenure. We may well find the conveyance of a freehold taking in all essentials the form of “surrender and admittance”; the old tenant yields up the land to the lord, the lord gives it to the new tenant; the transaction takes place in court; the symbolical rod is employed; no charter is necessary.507 Indeed when there was to be no subinfeudation but a substitution of a new for an old tenant, we may well be surprised that this could ever be effected without a double conveyance. Moreover if we say that the lord can prevent the alienation of villein, but cannot prevent the alienation of free tenements we still have not solved the question; to say that a tenement is villein because it cannot be alienated without the lord’s consent is to put the cart before the horse.

“The will of the lord.”Nor again can we find the solution in the phrase “to hold at the will of the lord.” If for a moment we take this phrase merely to denote that the tenure is unprotected by the king’s court, we are brought once more to the fruitless proposition that it is unprotected because it is unprotected. If, on the other hand, we take the phrase to imply that there is no court which protects the tenure, or that the lord can at any moment eject the tenant without breach of any custom, then, to say the least, the great mass of villein tenures will escape from our definition. Tenures which really are tenures “at will,” unprotected by any custom, are to be found, and that too in high places, but then they are in general carefully distinguished from the villein tenures. In the extents and manorial rolls of the thirteenth century it is rare to find that the tenants in villeinage are said to hold at the will of the lord.508 Still when we turn, as we now must, to find the element in villein services which makes them villein, this phrase “at the lord’s will” must again meet us.

Villeinage and labour.That a tenure which compels to agricultural labour is unfree, this we certainly cannot say. The philology of the time made ploughing service the characteristic feature of socage,509 and often enough a freeholder had to give his aid in ploughing and reaping his lord’s demesne; nor can we say for certain that he could always do his work by deputy, for the duty cast upon him was sometimes such as could not well be delegated, in particular that of riding after the labourers “with his rod” and keeping them up to their work.510 There is nothing servile in having to do such a duty in person. In general, no doubt, the freeholder only aids his lord’s agriculture during a few weeks in the year; he helps at the “boon works” but does no “week work”; still it is difficult to make the distinction between freedom and unfreedom turn upon the mere amount of work that has to be done. If there is no villeinage in labouring ten days in the year why should there be any villeinage in labouring three days a week? On the whole our guides direct us not to the character, nor to the amount of the work, but to its certainty or uncertainty.511 The typical tenant in villeinage does not know in the evening what he will have to do in the morning.512 Now this, when properly understood, is very generally true of the tenants who are bound to do much labour, to do “week work.” They know a great deal about the amount of work that they will have to do in each year, in each week, on each day; they know, for example, that the custom exacts from them three and no more “works” in every week, that Tuesday is not a work day, that if they are set to ditch they must ditch so many perches before the “work” will be accomplished, that to drive a cart to one place is “one work,” to another place “two works”; they know whether when set to thresh they can stop at nones or must go on to vespers. Still there is a large element of real uncertainty; the lord’s will counts for much; when they go to bed on Sunday night they do not know what Monday’s work will be: it may be threshing, ditching, carrying; they cannot tell. This seems the point that is seized by law and that general opinion of which law is the exponent: any considerable uncertainty as to the amount or the kind of the agricultural services makes the tenure unfree. The tenure is unfree, not because the tenant “holds at the will of the lord,” in the sense of being removable at a moment’s notice, but because his services, though in many respects minutely defined by custom, cannot be altogether defined without frequent reference to the lord’s will. This doctrine has good sense in it. The man who on going to bed knows that he must spend the morrow in working for his lord and does not know to what kind of work he may be put, though he may be legally a freeman, free to fling up his tenement and go away, is in fact for the time being bound by his tenure to live the same life that is led by the great mass of unfreemen. Custom sets many limits to his labours; custom sets many limits to theirs; the idea of abandoning his home never enters his head; the lord’s will plays a large part in shaping his life.

Definition of villein services.This then seems to have been the test usually applied by the king’s court. If the labour services are “uncertain,” the tenure is unfree; and it is a test which condemns as unfree the great bulk of the tenures which obliged men to perform any considerable amount of agricultural labour for their lord, because, however minutely some particulars of those services may be defined, there is generally a spacious room left for the play of the lord’s will. Thus the test roughly coincides with another:—labour service is not necessarily unfree, but a service which consists of much labour, of labour to be done all the year round, is almost of necessity unfree; for almost of necessity the tenant will be bound to obey, within wide limits, whatever commands the lord or the lord’s bailiff may give him. Thus to hold land by “fork and flail,” by work done day by day, or week by week on the lord’s demesne, is to hold in villeinage.513

Tests of villein tenure.Other tests are in use. Any service which stamps the tenant as an unfreeman, stamps his tenure as unfree; and in common opinion such services there are, notably the merchetum. Now among the thousands of entries in English documents relating to this payment,The merchet. it would we believe be utterly impossible to find one which gave any sanction to the tales of a ius primae noctis.514 The context in which this duty is usually mentioned explains at least one of the reasons which underlie it. The tenant may not give his daughter (in some cases his son or daughter) in marriage—at least not outside the manor,—and he may not have his son ordained, and he may not sell horse or ox, without the lord’s leave:—the stock on the tenement is not to be diminished. No doubt a subjection to this restraint was regarded as very base, and sometimes it is described in vigorous words which express a freeman’s loathing for servility:—“he must buy, he must make ransom for, his flesh and blood.” This is intelligible; a payment for leave to give one’s daughter in marriage or for leave to send one’s son to school, naturally suggests bondage, personal bondage, bondage which is in one’s blood. It is constantly used as a test of personal serfage and a fortiori of unfree tenure. Bracton will just allow that the man who has to pay a merchet need not be a bondman; it may in a given case be an incident of unfree tenure rather than of personal servility. However, though this test was commonly applied, we cannot say that it was conclusive even of the unfreedom of the tenure. In Northumberland there certainly were lords of manors, lords of entire vills, who paid merchet,515 and then we have to remember that in Scotland, at least according to the Regiam Maiestatem, every woman, were she noble, were she serf, paid “merchet,” paid it in kine (an earl’s daughter paid twelve cows),516 while in Wales a similar payment was made on the marriage of every girl.517 Very possibly several different payments originating at different times, perhaps among different races, and expressive of different ideas have been fused together; but in England the merchet is generally regarded as a base payment, a mark, though not a conclusive mark, of personal unfreedom.518

Other tests of villein tenure.Other tests are at times suggested. The duty of serving as the lord’s reeve whenever the lord pleases, the liability to be tallaged “high and low,” these also are treated as implying personal bondage.519 If the tenement descends to the youngest son instead of to the eldest son or to all the sons, the inference is sometimes drawn that it is not free. On the whole, however, our books constantly bring us back to the “uncertainty” of the service as the best criterion of villein tenure. Certainty and uncertainty, however, are, as we have seen, matters of degree. In few, if any, cases is there no custom setting bounds to the tenant’s duty of working for his lord; in most cases many bounds are set; the number of days in every week which he must spend on the demesne is ascertained; often the amount of any given kind of labour that will pass for a day’s work is determined; but yet there is much uncertainty, for the tenant knows not in the evening whether in the morning he will be kept working in the fields or sent a long journey with a cart. We need not be surprised therefore if in the thirteenth century “freehold” and “villeinhold” are already becoming technical ideas, matters of law; jurors who can describe the services are unwilling to say whether they are free or unfree, but will leave this question for the justices.520 And next we have to note that though labour service, indefinite or but partially defined labour service, seems to be the original essence of villein tenure, this does not remain so for long. When once it has been established that a tenement is unfree, that tenement will not become free, at least in the eyes of lawyers, even though the services are modified or transformed. Without any definite agreement, a lord begins to take money instead of exacting labour, and gradually it becomes the custom that he shall take money, and a precisely fixed sum of money, in lieu of all the week-work. This change does not give the tenant a freehold, a right in the land which the king’s courts will protect; something far more definite would be required for that purpose, an enfranchisement, a feoffment. Thus it falls out that a tenant who according to the custom of the manor pays a money rent and does no more labour for his lord than is owed by many a freeholder, may still be no freeholder but a tenant in villeinage; he still is protected only by custom and in the view of the royal justices is but a tenant at will. Then gradually what has been called “the conveyancing test” becomes applicable. Dealings with villein tenements are set forth upon the rolls of the lord’s court; the villein tenement is conceived to be holden “by roll of court,” or even “by copy of court roll,” and the mode of conveyance serves to mark off the most beneficial of villein-holds from the most onerous of freeholds; the one passes by “surrender and admittance,” the other by “feoffment.” In Henry III.’s time this process which secured for the tenant in villeinage a written, a registered title, and gave him the name of “copyholder,” was but beginning, and it is possible that in some cases the lord by taking money instead of labour did as a matter of fact suffer his tenants to become freeholders; but probably he was in general careful enough to prevent this, for him undesirable, consequence, by retaining and enforcing a right to some distinctively servile dues. But our definition of villein tenure must be wide enough to include cases in which there has been a commutation of labour service into rent, and on the whole we may do well in saying that villein tenure is the tenure of one who owes to his lord in respect of his tenement “uncertain” labour services, or who (by himself or his predecessors) has owed such services in the past, or who is subject to distinctively servile burdens such as merchet, arbitrary tallage, or the duty of serving as reeve. This we believe to be the main idea; but we must receive it subject to two remarks, namely, that, as so often said, “uncertainty” is a matter of degree, and that in some cases a tenure which all along had been tenure at a money rent may have been brought within the sphere of villeinage by some untrue, or at all events unverified, theory as to its past history. Here as elsewhere law has done its work of classification by means of types rather than by means of definitions.521

Binding force of manorial custom. To fix in precise words the degree of binding force that the lords in their thoughts and their deeds ascribed to the manorial custom would be impossible. Generalizations about the moral sentiments of a great and heterogeneous class of men are apt to be fallacious, and, when a lord pays respect to a custom which cannot be enforced against him by any compulsory process, it will be hard for us to choose between the many possible motives by which he may have been urged; provident self-interest, a desire for a quiet life, humane fellow-feeling for his dependants, besides a respect for the custom as a custom may all have pulled one way. There is some evidence to show that the mere reverence for the custom as a custom grew weaker during the thirteenth century. When early in that age the king’s justices were considering whether they would not protect the villein tenant against his lord,522 they must have felt that the custom was very like law. On the other hand, when they had definitely abandoned this enterprise, the lords must have been more and more tempted to regard the custom as but a revocable expression of their own wills.523 Certainly the lawyers began to use language which must have suggested to the lords that they might eject their tenants whenever they pleased.524 On the whole, however, the two clauses of the formula which is in after times to describe the position of the copyholder, grew into definiteness side by side:—the tenant in villeinage holds “at the will of the lord,” but “according to the custom of the manor.”

Treatment of villein tenure in practice.Our task is the more difficult because fully developed copyhold tenure, even as it exists in the nineteenth century, allows that there are many acts and defaults by which a tenant may forfeit his tenement. Now a strict definition of these causes of forfeiture only appears late in the day; little of the kind is to be found in the “extents” of the thirteenth century. Seldom, if ever, were the lords brought to acknowledge that the causes of forfeiture were definable. Many admissions against their own interests the “extents” of their manors may contain; they suffer it to be recorded that “a day’s work” ends at noon, that in return for some works they must provide food, even that the work is not worth the food that has to be provided; but they do not admit that for certain causes and for certain causes only may they take the tenements into their own hands.

Ejectment of villeins.As a matter of fact, it is seldom of an actual ejectment that the peasant has to complain. If he makes default in his services, he in general suffers no more than a small amercement; seldom does it exceed six pence. Even if he commits waste, if, for example, he lets his house go out of repair, he generally has full warning and an opportunity for amending his conduct before the lord takes the extreme measure of ejecting him. An extreme measure it was, for tenants were valuable; then as now “it paid to be a good landlord.” Two motives, and perhaps two only, might make a lord wish to clear the cultivators from his land; he might wish to fill their place with beasts of the chase or with monks. Happily for the peasantry, rights of sporting were franchises which had to be purchased from the king, while we may hope that the pious founder dealt generously with his tenants. One of the stories which best illustrates the nature of their customary rights tells how when Henry II. was founding the Carthusian priory of Witham in Somersetshire he cleared the villeins off the land, but gave each of them the choice of becoming free or receiving a tenement in any royal manor that he might choose. But the holy Hugh was not content with this, he made Henry pay compensation to the villeins for their houses; nor did he stop there; they must be allowed to carry away the materials, though for these they have already received a money equivalent.525 At an earlier date an Earl of Lincoln, clearing the ground for Revesby Abbey, had given the dispossessed rustics a choice between freedom and other tenements.526

Increased services.What the tenant in villeinage had to fear was not so much arbitrary ejectment as an attempt to raise his rent, or to exact from him new and degrading services which would make him an unfreeman. We cannot altogether acquit the lords of such attempts. The fact that the services described in the later “extents” seem heavier than those described in the earlier, the fact that the debasing merchetum seems to become far commoner as time goes on, these facts are not very cogent, for the extents become more minute and particular and we seldom can be quite sure that what is expressed in the later documents was not implied in the earlier.527 We cannot so easily dispose of the evidence that late in the thirteenth century large masses of the tenants believed and sought to prove that their lords had broken the custom and imposed new burdens upon them. They sought to show in case after case that they were living on the ancient demesne of the crown, and that therefore they were protected against any increase of services. Generally they failed; Domesday Book was produced and proved that they had no right to claim the king’s help. The fact remains that they had hoped to prove that the lords were breaking the custom. To this we must add that in many of these cases the lord was a religious house.528 Now there is plenty of evidence that of all landlords the religious houses were the most severe—not the most oppressive, but the most tenacious of their rights; they were bent on the maintenance of pure villein tenure and personal villeinage. The immortal but soulless corporation with her wealth of accurate records would yield no inch, would enfranchise no serf, would enfranchise no tenement. In practice the secular lord was more humane, because he was more human, because he was careless, because he wanted ready money, because he would die. Still it is to the professed in religion that we may fairly look for a high theory of justice, and when we find that it is against them that the peasants make their loudest complaints, we may be pretty sure that the religion of the time saw nothing very wrong in the proceedings of a lord who without any cruelty tried to get the most that he could out of his villein tenements. We may well doubt whether the best morality of the time required him to regard the villein services as fixed for good and all, or as variable only by means of some formal agreement such as never could have been made had but one tenant refused his consent. The process of commutation, which in the end was to give the copyholder his valuable rights, was set going by the lord’s will; he chose to exact money instead of labour, and, if he took but a fair sum, he was not to be condemned. We cannot contend therefore that the lord’s will was fettered by rigid custom, or that any man conceived that it ought to be so fettered. On the other hand, as we shall soon see, there is in the king’s treatment of his peasants, the men of “the ancient demesne,” a convincing proof that the just landlord was expected to pay heed to the custom and not to break through it save for good cause.

Heritable rights in villein tenements.Had the tenant in villeinage heritable rights? Of rights recognized by the king’s courts we have not to speak; but the manorial court frequently admitted that his rights were heritable, at least as against all but the lord. Often a claimant comes into court and declares in set terms how he is the rightful heir and how some one else is wrongfully withholding his inheritance. Thus, for example: “John of Bagmere demands against John son of Walter of Wells one virgate of land with the appurtenances in the vill of Combe as his right according to the custom of the manor, and therefore as his right, for he says that one John of Bagmere his grandfather died seised thereof as his right according to the custom of the manor, and from that John the right descended according to the custom of the manor to his son William, the demandant’s father, whose heir the demandant is according to the custom of the manor.”529 This is just the formula which a man would use in the king’s court were he claiming a freehold inheritance, save that at every turn reference is made to the custom of the manor; according to the custom inheritance is a matter of strict right as against all but the lord. The documents are much more chary of admitting that as against the lord the heir has any rights. On the death of a tenant a heriot becomes due, usually the best beast or best chattel or a fixed sum of money; but this is regarded less as a “relief” to be paid by an heir than as a payment due out of the dead man’s estate, and if an “extent” speaks of the heir at all, this is in general to tell us that he must “do the lord’s will,” or must “redeem the land at the will of the lord.”530 The court rolls seem to show that as a matter of fact heirs were admitted on fairly easy terms, the lord taking an additional year’s rent or the like, and the pleadings in which hereditary right is asserted against others than the lord testify to a strong feeling that the villein tenements are heritable; still as against the lord the heir has rather a claim to inherit than an inheritance. The records of this age but rarely say that a tenant is admitted “to hold to him and his heirs,” generally they say no more than that the lord has given the land to A. B. When, as would generally be the case, the tenants were personally unfree, the lord would have run some danger in talking about their heirs, for lawyers were saying that the serf could have no heir but his lord and drawing thence the deduction that a serf might be enfranchised by unguarded words.531 This may be the reason why early court rolls, when they do expressly allow that a new tenant is to have transmissible rights, do so by speaking not of his heirs but of his sequela. This is not a pretty word to use of a man, for it is the word that one uses of pigs and the like; the tenant is to hold to him and his brood, his litter.532 We shall better understand the nature of the heir’s right against the lord, a right to inherit if the lord pleases, if we are persuaded that in many a case the inheritance was not very valuable. Certainly in the fourteenth century there were lords who would but too gladly have found heirs to take up the villein tenements at the accustomed services.533 We may hardly argue thence to an earlier time; but no doubt the services were often as good a return for the land as could have been obtained. A strong man with strong sons might do them and thrive; the weak and needy could not, and were removed with the full approbation of the other men of the vill, whose burdens had been increased by the impotence of their fellow-labourer.

Unity of the tenement.Further the lord took care that the tenements should not be broken up among co-heirs. Often the tenant’s widow enjoyed the whole tenement during her life or until she married a second time without the lord’s leave.534 Often the customary rule of inheritance gave the land to the dead man’s youngest son, and this was accounted a mark of villein tenure.535 Perhaps in some cases the family kept together, and the son who was admitted as tenant was regarded as representing his brothers; but this must have been a matter of morals rather than of law or of enforceable custom. By one means or another the unity of the tenement was preserved and it is rare to find it held by a party of co-heirs. Exceptions there doubtless were, but on the evidence afforded by the “extents” and the Hundred Rolls it is hard to believe that in the thirteenth century the lords held themselves bound by custom to admit the heir on his tendering a fixed fine.536 “Precarious inheritance,” if we may use such a term, was of common occurrence in all zones of society. The baronial relief had but lately been determined; the tenant by serjeanty still relieved his land “at the will of the lord.” We know too that in later days the heir of a copyhold tenant very often had to pay an “arbitrary” fine, while in other cases lords have succeeded in proving that the successors of the villein tenants were but tenants for life.537

Alienation of villein tenements. Of the alienation, of the sale and purchase, of villein tenements we read little. We may be sure that this could not be effected without the lord’s leave; the seller came into the lord’s court and surrendered the land into the steward’s hand, who thereupon admitted the new tenant and gave him seisin. The new tenant paid a fine; often it would be one year’s value of the tenement. But in this region there seems to have been but little custom, and we may be fairly certain that the lords of this period did not allow that new tenants could be forced upon them against their will. If the tenant attempted to alienate the tenement without the lord’s leave, this was a cause of forfeiture;538 if he attempted to make a lease of it, this, if not a cause of forfeiture, subjected him to an amercement.539

Villein tenure and villein status.Finally we must note that the tenant in villeinage was usually regarded as an unfreeman, a bondman, villanus, nativus, servus. That a freeman should hold in villeinage was possible, and up and down the country there may have been many freemen with villein tenements; what is more, there likely enough were many men whose status was dubious. This is one of the most remarkable points in villeinage; villein tenure is of far greater practical importance than villein status. To prove that a man was personally unfree was, as we shall see in the next chapter, a difficult matter, and a case in which a lord had in his own interest to undertake this proof was not very common. So long as the tenant did not make up his mind to quit hearth and home, leaving the means of his livelihood behind him, the lord had seldom to fall back upon an assertion of personal bondage in order to get what he wanted. If the tenant was refractory the lord could distrain him, could take the tenement away for a time or for good and all. For all this however, the “extents” of the thirteenth century show that in the estimation of their lords—and, we must add, of their neighbours,—the holders of unfree tenements were as a general rule unfreemen. This is apparent in “extents” to which the tenants themselves pledge their oaths; it is plain upon the face of the Hundred Rolls. The juries of different hundreds may choose different phrases; but in one way or another, either by using such terms as nativus and servus, which imply personal unfreedom, or by laying stress on the payment of the merchet, they generally show that in their opinion the case of a freeman holding in villeinage is uncommon and may fairly be neglected by those who are dealing with large masses of men.

§ 13.

The Ancient Demesne540

The ancient demesne and the other royal estates.The king is a great landowner. Besides being the supreme lord of all land, he has many manors of his own; there is a constant flow of lands into and out of the royal hands; they come to him by escheat and forfeiture, they leave him by gifts and restorations. Now a distinction is drawn among the manors that he has. Some of them constitute, so to speak, the original endowment of the kingship, they are that ancient demesne of the crown which the Conqueror held when the great settlement of the Conquest was completed and was registered in Domesday Book.541 What has fallen in since that time is not considered as so permanently annexed to the kingly office; it is not expected of the king that he will keep in his own hands the numerous honours, baronies and manors with which felony and treason and want of heirs are constantly supplying him; rather it is expected that he will give these away again. On the other hand, he ought not to dissipate the old demesne manors. He does give them out, and that too to be held of him heritably, but often he reserves a substantial money rent; they are to be held of him in “fee farm.” This is hardly a matter of law; all the king’s manors are the king’s to give upon what terms he pleases; still his ancient patrimony is regarded as more closely bound up with his office than are those mere windfalls which now and again come to his hands.542

Immunities of the ancient demesne. But in law also the distinction is important. We are accustomed to define a “franchise” as a portion of royal power in the hands of a subject, so that to speak of the king as having franchises would be a contradiction in terms. Nevertheless in early history the king appears as the first of all franchise holders, the first in point of greatness and the first, it well may be, in point of time. The king’s estates are (to borrow a word from abroad) “immunities,” perhaps the oldest of all immunities; they stand outside the normal, national system of justice, police and finance. Inside them there prevails a royal, which is also a seignorial, justice, and which remains distinct from the ordinary justice of the realm, even when that is done in the king’s name. The tenants on the ancient, the permanent, manors of the crown enjoy many “liberties” which flow from the king’s rights, they are to a very high degree exempt from all justice, save that which is done among them by a court which they constitute and which is presided over by a royal bailiff, exempt to a very high degree even from the justice of the king’s “courts of common law” when those courts have come into existence. They know little of the sheriff; they have not to attend the moots of the shire or the hundred; they need not serve as jurors; wherever they go they pay no toll; they are not taxed like other folk; on the other hand they are liable to be tallaged by the king. The king profits by these immunities; his manors are governed from within; the cultivators of his demesnes cannot be distracted from their duties to him.543 He attracts men to his land; the serf who lives there unclaimed for year and day is privileged against recapture.

Once ancient demesne, always ancient demesne.When new manors come to the king’s hands they do not enjoy these immunities. On the other hand, when the king gives away in fee farm or otherwise one of the ancient manors, the donee takes it with all its privileges. This we may say is an illustration of a general rule of law:—the escheat of a mesne lordship should leave unaltered the rights and duties of those who are the subjects of that lordship, and if a lord puts a mesne between himself and his tenant, that tenant should neither gain nor lose by the change. Thus, once ancient demesne, always ancient demesne. The tenants who have been free of toll but liable to tallage should still be free of toll but liable to tallage, though the king has ceased to be and the Prior of Barnwell has become their immediate lord.

Peculiar tenures on the ancient demesne.All this would make the ancient demesne of importance in the history of political arrangements, in the history of the franchises, of justice, police and finance, though here the franchises and immunities enjoyed by the king’s estates would have to take their place beside the very similar franchises and immunities enjoyed by the estates of other privileged persons. But we do not at once see why there should be any form of land tenure peculiar to the ancient demesne. However, such a form of land tenure there is.

The problem stated.Briefly stated, the phenomenon which deserves investigation is this:—On the ancient demesne there is a large class of persons whose economic and social position is much the same, if not quite the same, as that of the ordinary holders in villeinage, but who are very adequately protected by law, or by custom which has all the force of law, in the enjoyment of their tenements. This protection is given to them by two remedies specially adapted to meet their case; the one is “the little writ of right close according to the custom of the manor,” the other is the writ of Monstraverunt. We will speak first of these remedies and then of the class for whose sake they exist.

The little writ of right.The “little writ of right close” is not unlike the “great writ of right patent.” This latter is the ordinary proprietary remedy for one who thinks that he ought to hold land by free tenure of a mesne lord. The writ patent is directed by the king to the mesne lord; it bids him “hold full right” (plenum rectum teneas) to the demandant and adds a threat that if he is remiss, the king’s sheriff will interfere.544 The lord then, if he has a court, holds a court, and justice can there be done to the demandant, though there are several ways in which the case can be withdrawn from his tribunal and removed first into the county court and then into the king’s court. Now the little writ is a similar writ. It is directed by the king to the bailiffs of the manor545 —this will be so whether the king is himself the immediate lord of the manor or whether it is in the hands of a mesne— and it bids the bailiffs do full right to the demandant “according to the custom of the manor.”546 It contains no threat of the sheriff’s interference, and this may be the reason why it is a “close writ” and not a “patent writ,” since no one but the recipient, who is not a public official, is required to act upon it. Thereupon the court of the manor proceeds to hear and is fully competent to determine the cause. Still it acts under surveillance. If it is going wrong, the sheriff can be sent with four knights of the county to watch its proceedings,547 and there are means by which the matter can be brought before the king’s central court.548 This writ, we say, is in use both when the manor is in the king’s hand, so that the demandant is claiming to hold immediately of him, and also when the manor has been given to a mesne lord. In the latter case the lord himself may be the defendant. So long as the king is the immediate lord, there can be no writ against the lord; of course not; but the would-be tenant of a few acres on the ancient demesne is in this respect no worse off than the mightiest of the barons; he who would get justice out of the king must petition for it in humble wise. But when the manor has been given to a subject, then the writ will lie against him; he can be required to do justice in a case in which, if the complaint be true, he himself is the evil doer. This is a remarkable point. The Abbot of Ramsey holds the manor of King’s Ripton, which is part of the ancient demesne. Joan of Alconbury thinks that she ought to hold eight acres which are in the abbot’s hand. The abbot is summoned once, twice, thrice and then distrained once, twice, thrice, to appear in his own court and answer her demand.549

Meaning of the little writ.Now so long as the manor is in the king’s hand, the case of the persons of whom we are speaking may not seem to differ radically from the case of villein tenants. Any one who claims to hold in villeinage is likely to get good enough justice in the lord’s court, provided that his opponent be not the lord. The difference may seem to be merely procedural. When a man claims villein land in an ordinary manor, he proceeds without any writ; ordinary lords do not keep chanceries; when he claims unfree land (for so we will for the moment suppose it to be) in a manor of which the king is the immediate lord, and which is regarded as part of the permanent endowment of the crown, he must use a writ. This is but a detail. For a moment we may even feel inclined to say that there is nothing in the distinction but that love for parchment and wax which is natural to a government office. Even when it is added that the court of a manor on the ancient demesne acts under the supervision of the courts of common law, we may find analogies for this on the estates of prelates and other great lords. Such a lord sometimes has a central court, an “honorial” court, which controls the doings of his manorial courts; the so-called courts of common law, it may be said, are the king’s central court, the court of the great honour of England. Still, though there may be some truth in these suggestions, they must not be suffered to conceal a really important distinction. In the case of the ancient demesne, even while the manor is immediately subject to the king, the consuetudo manerii is put on a level with the law of the realm; it is enforced by the highest of all tribunals; indeed it is lex et consuetudo manerii.550 Nor is the mere use of a writ of no importance; it solemnly sanctions the custom. We have far more reason for saying that the distinction between “great” and “little,” between “close” and “open” than that the distinction between “writ” and “no writ” is trivial. But when the manor goes out of the king’s hand, then there is a truly abnormal state of affairs; the king compels the lord to do justice to claimants of land who yet claim no freehold. A climax is reached when the lord himself has to answer in the manorial court and submit himself to its process.

The Monstraverunt.This is not all. The little writ serves the turn of a man who claims land according to the custom of the manor; but the tenants of whom we are speaking are protected, and protected collectively, against any increase of their services. This is very plain when the manor is in the hands of a mesne lord. If he attempts to increase the customary services, some of the tenants, acting on behalf of all, will go to the royal chancery and obtain a writ against him. Such a writ begins with the word Monstraverunt.551 The king addresses the lord:—“ A, B and C, men of your manor of X, which is of the ancient demesne of the crown of England, have shown us that you exact from them other customs and services than those which they owe, and which their ancestors did in the time when that manor was in the hands of our predecessors, kings of England; therefore we command you to cease from such exactions, otherwise we shall order our sheriff to interfere.” The lord being deaf to this command, another writ is sent compelling him to come and answer for his disobedience before the king or before the justices of the Bench. When the case comes before the royal court, the complainants have in the first place to show that the manor is part of the ancient demesne; Domesday Book is used for this purpose as a conclusive test. Then, if this fact is proved or admitted, there arises the question whether the lord has exacted unaccustomed services, and if this is answered against him, it is adjudged that he shall do so no more. Here then we see a class of tenants who are not freeholders, but who are fully protected in the king’s court against their lord. Of course if the manor is in the king’s hand, there is no place for this procedure.552 Still if the tenants allege that they are being oppressed by the king’s bailiffs, they can present a petition to the king and the matter will be investigated in the exchequer.553

The classes of tenants. Bracton’s statement. And now we may ask, who are the persons for whose sake these remedies exist. Bracton in a classical passage tells us that on the king’s demesne there are several kinds of men. In the first place there are serfs or born bondmen who were (i.e. in the persons of their ancestors) serfs before the Conquest, at the Conquest and after the Conquest, and to this day they perform villein services and uncertain services and they are bound to do whatever is commanded to them, provided it be lawful and right. And at the Conquest there were freemen who freely held their tenements by free services or free customs, and, when they were ejected by the mighty, they came back and received the same tenements to hold in villeinage by doing servile works, but certain and specified works; and they are called glebae ascriptitii and none the less are they freemen, for, albeit they do servile works, still they do these, not by reason of personal status, but by reason of their tenure; and for this reason they cannot bring the assizes of novel disseisin or mort d’ancestor [the freeholder’s possessory remedies], for their tenement is villeinage, though privileged villeinage; they can only bring the little writ of right according to the custom of the manor; and for this reason are they called glebae ascriptitii, for they enjoy the privilege of not being removed from the soil so long as they do their right services—no matter to whose hands the king’s demesne may come; nor can they be compelled to hold their tenements against their will. Then there is another set of men on the king’s manors who hold of the demesne by the same customs and villein services as the above, and they do not hold in villeinage nor are they serfs, nor were they such at or before the Conquest, but they hold under covenant which they have made with the lord, and some of them have charters and some have not, and, if they are ejected from their tenements, they shall (according to some) have the assize of novel disseisin, and their heirs shall have the assize of mort d’ancestor. And there are other sorts of men in the king’s manors and demesnes, who there, as might be the case elsewhere, hold freely in free socage or by military service under some modern feoffment made since the Conquest.554

Bracton’s statement discussed.Whereas then on ordinary manors we have, according to legal theory, but two tenures that must for our present purpose be distinguished, on the ancient demesne we have at least three. There are freeholders of the common kind, holding in free socage or by military service, and they require no special remedies. There are serfs holding in absolute villeinage. But between them there is a class of tenants whom Bracton oddly enough calls glebae ascriptitii because they cannot be ejected from their holdings; they are freemen; they can leave their tenements when they will; they hold by villein services, but services which are certain; they use the little writ of right. Lastly there is a class to which we may be allowed to give the name of “conventioners.”555 They differ from the ascriptitii rather in the origin of their holding and in the nature of their remedies than in the substance of their rights and duties. The ascriptitii are supposed to trace the origin of their class back to the Conquest; they hold by customary tenure; the “conventioners” hold under modern agreements, and it is arguable that, though they do villein services, they have the ordinary remedies of freeholders.

A second statement.In another and equally well known passage we hear of the same four classes. Bracton is speaking now without special reference to the ancient demesne, and remarks that villeinage may be either absolute or privileged. Absolute villeinage is the tenure of one who, be he free or be he serf, is bound to do whatever is commanded him, and does not know in the evening what he must do in the morning. Then there is a villeinage which is not so absolute; as when land is granted by covenant to a freeman or a serf for fixed, though villein, customs and services. If such a “conventioner” is ejected, Bracton (disallowing the opinion which would give him the freeholder’s assizes) holds that his proper remedy is an action on the covenant. Then, says he, there is another kind of villeinage which is held of the king from the Conquest of England, which is called villein socage, and is villeinage though privileged villeinage; for the tenants of the king’s demesnes have this privilege that they may not be removed from the soil so long as they can and will do their due service, and these “villein sokemen” are properly called glebae ascriptitii; they do villein, but fixed and specified, services. Lastly, he once more remarks that in a royal manor there may be knights and freeholders, holding by military service or by free socage.556

The four classes of tenants.These freeholders we may dismiss from our minds; they have and they require no peculiar remedies; indeed, the term “ancient demesne” having begun to imply peculiar remedies, we find it contrasted with “freehold,” and in a judgment of Edward I.’s reign we are told that the lord of the manor, be he the king or no, can change “ancient demesne” into “freehold” by enfeoffing a tenant;557 after such a feoffment the tenement is no longer ancient demesne, but “is at the common law.”558 The case also of the “conventioners” we may for a while postpone, for it is not very important, though it is very curious. There remain two classes of tenants: those who hold in absolute villeinage and those who in Bracton’s terms hold in privileged villeinage, or in villein socage, and who are villein sokemen and “ascript to [i.e. irremovable from] the soil.” It is the men of this last class who use the little writ of right.

The theory borne out by practice.Such is the legal doctrine, and at some points it corresponds well with what we can learn of actual arrangements. On an ordinary manor we rarely find more than two classes of tenants that can be called legal classes. We may find more than two economic classes:—in the common case there will be a class of virgaters, a class of half-virgaters, a class of crofters and cotters, and there may well be a class of tenants who pay rents and do but little labour, while other classes must do “week work”—we find censuarii as well as operarii. Also, as already said, we may find some tenants (but hardly classes of tenants) about whose tenure we may doubt whether it be freehold or no. Still in general there is a clear dichotomy; there are freeholders and then there is one other great class. The latter may be called by different names according to the taste of the jurors; its members may be termed servi, nativi, bondi, villani, custumarii, consuetudinarii; but legally their tenure is always the same; they hold according to the custom of the manor but their tenure is unrecognized by the king’s courts. When, however, in turning over the Hundred Rolls we come upon a manor of the ancient demesne, we often see a more elaborate stratification, and in particular we read of sokemen; and conversely when we see this more elaborate stratification and discover sokemen, we can usually learn that we are on the ancient demesne. Thus at Soham in Cambridgeshire, besides ordinary freeholders, there are free sokemen, bond sokemen, and villani, and at Fordham there are ordinary freeholders, sokemen and villani.559 We hardly need the testimony of Domesday Book: Saham manerium Regis, Fordeham dominica villa Regis.560 In Huntingdonshire at Brampton there are freeholders, free sokemen, and bond sokemen, at Alconbury numerous sokemen;561 the natural inference may be verified in Domesday Book.562 No one could look through the Oxfordshire surveys without singling out the manor of Bensington563 with its many liberi sokemanni, who are kept apart from its libere tenentes, and inferring that it was a manor of no ordinary kind. It is so with the court rolls. To say nothing of the “little writs of right” which are stitched to their membranes, the rolls of a manor on the ancient demesne are distinguished by entries which show that land is freely bought and sold,564 and if in the Hundred Rolls we are told that the custumarii of Chesterton have sold their half-virgates, we hardly need look to see whether Chesterton be not dominica villa Regis.565

Difficulty of classifying the tenants.We have, however, no little difficulty in marking off Bracton’s “absolute villeinage” from his “privileged villeinage.” His test is the “certainty” or “uncertainty” of the services due from the tenant. But, as we have already seen, there lurks an ambiguity in these simple terms. If by saying that a tenant owes servitia certa et nominata, we mean that the terms of his tenure are defended by legal remedies, remedies the administration of which either belongs to, or is at least supervised by, the highest court in the land, then we are treading a vicious circle: the remedies are given because the services are certain, the services are certain because the remedies are given. If, on the other hand, we look at the nature of the services, and say that they are certain if they can be defined without any reference to the lord’s will, then we exact too much from those who are to claim the law’s protection. The men of King’s Ripton in Huntingdonshire used the little writ of right, they used the Monstraverunt, they distrained their lord, the Abbot of Ramsey, to answer them in the manorial court; but, according to an “extent” made by their representatives, they were bound to work one day a week all the year round “at whatever work he commanded them” and three days a week during August and September. Of them it might well be said that when they went to bed on Sunday night they did not know what they would have to do on Monday. In short, here as when we were outside the ancient demesne we come upon a matter of degree. There is hardly a tenant of whom it can be said that no custom prevents him from having to do just whatever services the lord may command; on the other hand, there is hardly a tenant doing any substantial amount of agricultural labour, of whom it can be said that he has never to attend to the lord’s will; even the true freeholder must do his boon works in autumn, and the very essence of a boon work is that, within some spacious limit, described by such a word as “harvest-time,” it must be done when it is asked for. How low down in the social and economic scale the protection given by the little writ and the Monstraverunt would go is excellently shown by the case of Ripton Regis. When pressed in pleading, the tenants admitted that ever since Henry I.’s day they had been paying arbitrary reliefs, arbitrary tallages, arbitrary merchet; but still they used the little writ and the Monstraverunt, and, if the abbot sought to make them work two days a week instead of one, they had their remedy in the king’s court.566

Practical difficulties.This being so, the lawyers never seem able to obtain any firm hold for their theory. They can repeat that there are three classes of tenants, freemen, villeins and sokemen; but how to draw the line between mere villeinage and the socage tenure of ancient demesne is a difficult problem.567 It is not as though we had merely to fix the distinction at some one point in a single scale of degrees; there are many scales as well as many degrees. Besides the scale of agricultural labour with its infinite particulars, there are the scales of tallage, of relief, of heriot, of merchet. Even if, following Bracton, we say that the sokeman should at least be personally free and free to quit his tenement, the men of King’s Ripton will appeal against our judgment, for at least they do all that freemen ought not to do according to legal theories. They pay arbitrary tallage, arbitrary merchet, they cannot have their sons ordained, they may not leave the manor without the lord’s licence; and yet, when all this has been proved against them, they go on using the little writ of right and distraining their lord.568 Our law never surmounted these difficulties until tenure in villeinage was protected by the king’s court under the name of copyhold tenure, and the line between common copyhold and the privileged villeinage of the ancient demesne had become of little significance. Even then many a curious, if unimportant, problem was left for lawyers to fight over.

Sokemanry and socage.On the other hand, to mark off the tenure of the sokeman, which is sometimes called “sokemanry,”569 from the freehold tenure known as free socage was no easy task: the very words that we employ in stating the problem show that this was so. The question whether “the customary freeholders” who appear in our later books were really freeholders and as such entitled to vote in the election of knights of the shire, the question which required for its solution, not merely the learning of a Blackstone, but the authority of an act of parliament,570 was a question prepared of old. The sokeman on the ancient demesne cannot usually be accounted a freeholder; the liberi sokemanni are marked off in the “extents” from the libere tenentes; they use the little writ of right: they cannot use the great writ or the possessory assizes which speak of seisin of free tenement. But is this so always? There is extant an elaborate opinion given by a lawyer of Edward I.’s day, one Aunger of Ripon, and it is found in so many manuscripts that certainly it must have been considered very sound and useful.571 He says that, according to his masters, there are three cases in which a tenant, who holds part of the soil of the ancient demesne, may use the assize of novel disseisin. The first is the case of a freeholder who holds in an ancient demesne manor, and this we may pass by. The second is where one of the sokemen has enfeoffed some free “outsider” (liber homo extrinsecus) and this feoffee has been left undisturbed for a while by the lord; if after this he is ejected by the lord or any other, he can bring the assize. This case is quite intelligible because if my villein makes a feoffment, I must eject the feoffee at once or not at all, since otherwise he will be able to bring the assize against me:572 —for the law of the thirteenth century is rigorous against self-help. But thirdly, if any “outsider” ejects a sokeman, the latter can bring the assize; this must be so (argues Aunger) for if someone ejects my mere villein, that villein by my leave will be able to recover in an assize; a fortiori we argue to the case of a sokeman whose estate is superior to that of a villein.573 Thus, according to this remarkable opinion, the term “free” when applied to a tenement is a relative term—we shall see in the next chapter that the term “free” when applied to a person is a relative term—for while as between himself and his lord the sokeman is no freeholder, still as regards all “outsiders” he can say that he has a free tenement, and, if ejected by them, he can make good the assertion that he has been disseised de libero tenemento suo. Thus we see that the perplexing terminology of later days which knows of “customary freeholds” which are “privileged copyholds,” has a very ancient root. Even the lawyers of the thirteenth century, or some of them, maintained that for certain purposes the sokeman had “a free tenement.”574 Nor is this strange, for the class which was using the little writ of right was miscellaneous. If, on the one hand, it included men like those of King’s Ripton who were stamped with every common mark of personal servility, it included on the other hand men who had valuable interests in tenements, which they sold and mortgaged and settled upon their families without any interference on the part of their lord. Such men are brought before us by a judgment of Edward I.’s day; when they sell their lands they do not even surrender them into the lord’s hand, they make a feoffment as a freeholder would; they make charters of feoffment, and then the alienation is enrolled in the manorial court; for all this, however, “no writ runs among them but the little writ of right.”575

Later theory and practice.We must not here recount the subsequent fate of the tenants on the ancient demesne, nor would this be easy, for it is clear that, if the law itself did not undergo much change, the terms in which it was expressed were unstable. But we may note that an opinion grew up that the class protected by the little writ of right was really a class of freeholders, and then the inference was drawn that tenants who alienated their tenements, not in the freeholder’s method by feoffment, but by a surrender into the hands of the lord, could not use the little writ because they were not freeholders. This doctrine comes to the front early in the fifteenth century, at a time, that is, when it was no longer capable of doing much harm to those “sokemen of base tenure” whom it excluded from the benefits of the little writ, since under the name of copyholders they were on the point of obtaining a perfectly adequate protection under other writs. But, as already said, the difficulty was prepared of old.576

Why is a special treatment of the ancient demesne necessary? And now two questions may occur to us. First, why should there be a peculiar class of customary tenants on those manors which have been in the king’s hand ever since the Norman Conquest? Secondly, why should the king interfere for the protection of customary tenants even when those manors have passed out of his own hand? The second question is the more easily answered. There has been an application of a very general rule of law which has come before us on more than one occasion. It may be thus stated:—the transfer of a lordship from one person to another should not affect the position of the tenants; as regards them it is res inter alios acta. When an honour escheats to the king, the tenants of that honour do not become liable to the special burdens which lie on those who are regarded as having held immediately of the crown from all time; the honour has still a notional existence for their benefit. Even so when the king parts with one of his ancient manors and puts a mesne lord over it, the tenants are neither to gain nor to lose by this transaction; as regards them, their rights and duties, the manor is still conceived as part of the royal demesne. A bye motive may secure the observance of this general rule in the case that is now before us. The king hardly regards these manors as having utterly ceased to be his, for, to say nothing of a possible act of resumption577 and to say nothing of escheats and forfeitures, many of these manors are let out to the mesne lords at substantial rents; they are held at “fee farm” and the king is concerned to see that the security for his rent is not impaired. It would be impaired were the tenants ill treated. This point, of importance in social history, is brought out by many actions for “waste” sued by wards against their guardians; the guardian has not merely cut down trees and pulled down houses, but he has “destroyed,” “exiled” or impoverished the villeins.578 Still the desire to keep well stocked and well managed the manors which supply the king with his fee farm rents, can serve but to give a little additional force to a general rule of law. It is a rule which cuts both ways. If we find tenants eagerly contending that they are on the privileged soil, we may also find, though hardly so often, a lord affirming that his manor is on the ancient demesne while the tenant denies this. The special law for the old patrimony of the king will profit now one and now the other party to the tenure.579

The king preserves an old settlement.We come then to the main question. Why on those manors which have never left the king’s hand is there a large class of tenants such as are hardly to be found elsewhere, a class of “sokemen,” holding in “privileged villeinage” ? All the evidence that we have conspires to tell us that there has been less change on these manors than elsewhere, and that the phenomenon before us is an unusual degree of conservatism. In the first place, the very name of “ancient demesne” shows us that the law supposes itself to be conservative. It is maintaining the Conquest settlement. To decide the question whether a manor be ancient demesne or no, it will go back far beyond all ordinary terms of limitation and prescription, far beyond “the beginning of legal memory”; it will be content with no evidence save that of the great survey. Nay in theory the ancient demesne gained its specific quality before Domesday Book was made. The lawyers of the fourteenth century had some doubts as to the exact moment of time at which the manor must have been in the king’s hand in order to make it ancient demesne for good and all, and the rule of evidence that they had adopted, namely that no testimony was admissible save that of Domesday Book, must have tended to cause some little confusion; still on the whole they think that the privileged manors are “the manors of St. Edward.”580 In this, though hardly in any other, context they will go behind the Norman Conquest. In the second place, Bracton regards these sokemen as an ancient race; it holds its lands under a great concession made to it soon after the Conquest. If new settlers come onto the ancient demesne, whatever rights they may gain under agreements made with their lords, they are not sokemen nor entitled to the peculiar privileges of sokemen. This theory, however difficult of application two centuries after the Conquest, was no idle theory; we are constantly reminded that the special characteristics of the ancient demesne, if they inhere in certain tenements, inhere also in “the blood of the sokemen.” Thus when the men of Tavistock have recourse to a Monstraverunt, it is objected that many of them are adventitii.581 Thus the men of King’s Ripton hold themselves to be a privileged race; even the ordinary rules of inheritance must yield when the choice is between a claimant who is not “of the blood of the vill” and one who is.582 Thus again, Aunger of Ripon treats the little writ of right as a remedy which has place only where both parties are born sokemen, or where one is a born sokeman and the other the lord; against an extrinsecus or forinsecus there may be an assize.583 Thirdly, without examining at any length the terminology of Domesday Book, we can say at once that the ancient demesne manors of the thirteenth century have preserved, while other manors have lost, some features which in the Conqueror’s survey are by no means peculiar to the royal villages; it is on the ancient demesne that we find more than one legal class of tenants who are not freeholders; it is on the ancient demesne that we find large groups of tenants still rejoicing in the ancient name of sokemen.

Why the king protects his tenants.Why has the king here shown himself as a conservative? Certainly we cannot answer that it is in the nature of kings to be conservative or solve the problem by an allusion to the inertness of a government bureau. In matters of law the royal power has been the great disturbing force, the king has been the radical reformer. Of course it is well to observe that on a royal manor there hardly can be any of those “half-rights” (if such a term may be invented) that may exist elsewhere. The custom of a royal manor, if the king recognizes it at all, must stand on much the same level as the law of the land; it will be administered by royal officers, and in the last resort it will be administered by royal officers who happen to be the judges of the supreme court of law. Still the king suffers this, and holds himself bound to suffer it, and his judges, for example, Bracton, say that he is bound to suffer it, say that the sokemen are irremovable so long as they do their services, say that their services are servitia certa et nominata. What we have to attribute to the king in a special degree is no mere inertness, nor is it enlightened self-interest (for this we should look to the monastic rather than to the royal estates) but it is a respect for custom, an acknowledgment that the rules administered in his manorial courts have all the force of law. Perhaps it is no paradox that he keeps the custom best because there can be no talk of his being forced to keep it. Another lord will draw a firm line between the rights of his freehold tenants, which he can be compelled to observe, and the rights, if such they are to be called, of his customary tenants, which he can ignore with impunity, and, as a remedy in the king’s supreme court is more and more regarded as a touchstone of every would-be right, he will begin to reason that there is no right where there is no compulsion. It is otherwise with the king. If he ejects his sokeman, no action will lie against him; none will lie against him if he disseises the palatine earl. In either case the person wronged can but petition for right; in either case the wrongdoer must answer for his act before the one tribunal competent to try him; he must appear before the throne of God. Morally the king can never be as irresponsible as is another lord of a manor, just because legally no bounds, or no definite bounds, are set to his irresponsibility. Men will not easily distinguish between his two capacities. If a landlord, he is still the king, the supreme judge over all men, the fountain of justice; he has sworn to do justice; the abbot, the baron, the knight have taken no such oath. We may add that the king is bound to maintain the laws and customs of “the glorious king St. Edward his predecessor.” Should he not then begin at home? It is as the tenants of St. Edward that the men of the ancient demesne claim his protection.584

Customary freehold.Speaking generally we have said that outside the ancient demesne all the tenures of the non-freeholding peasantry are in law one tenure, tenure in villeinage. This is the doctrine of the lawyers of the thirteenth century, and on the whole it is well borne out by the manorial “extents.” Economically considered there are many modes of peasant tenure, for the tenement may be large or small, the agricultural services may be light or heavy, “week work” may be exacted or money may be taken; but just as the modern lawyer makes “leasehold tenure” cover such economically different things as a lease of a house in London and a lease of a farm, a lease for a year and a lease for a thousand years, beneficial leases and leases at rack rent, so all these modes of peasant tenure can be brought under one head. The legal quality which they have in common and which keeps them together, is, we may say, their customary quality; they are not protected by the law of the king’s courts, but they are protected, more or less perfectly, by the customs administered in the manorial courts. Legally they form one tenure, because in all cases the kind of protection that they receive is the same. In this quality there are no degrees, or none that can be fixed with legal precision. Of course there are good and bad landlords, landlords who respect the custom, landlords who break it, conservative landlords and improving landlords; but all this is no matter of law. What we do not see is that one and the same landlord in one and the same manor admits that he has divers classes of non-freeholding tenants, which differ from each other in the validity of their tenure; what we do not see is a “privileged” beside an “absolute” villeinage. Still there are exceptions, and perhaps, were they all collected, they would form a considerable mass: in particular if the documents concerning Kent, East Anglia and Northumbria were patiently examined. In a cartulary of the twelfth century, in the Black Book of Peterborough, we still find on one and the same manor various classes of tenants bearing the names which are familiar to all who read Domesday Book. There are large groups of sochemanni who are kept well apart from the villani, but who very probably could not have made good a claim to be considered as freeholders in the king’s court.585 Even in the Hundred Rolls we may, though as a rarity, find a class of sokemen marked off from the freeholders on the one hand and the tenants in villeinage on the other, though the manor is not on the ancient demesne. It is so at Swavesey in Cambridgeshire. When Domesday Book was made Count Alan held it, and it is still held by Ellen de la Zouche “as of the honour of Britanny.” She has freehold tenants, a group of villani who hold de villenagio, a group of cotters; but besides these a group of sokemanni who hold sokelond.586 In the north the “tenants in drengage” are severed from the freeholders and from the “tenants in bondage”;587 and, if the Kentish “gavel-men” succeeded in making “gavelkind” a freehold tenure, and in some respects a privileged freehold tenure, since peculiarly cheap and easy remedies for its protection were allowed them, their tenure was still spoken of as though it were not absolutely “free”; it may be contrasted with “frank fee” just as the tenure of the king’s sokemen may be contrasted with “frank fee.”588

Customary freehold in modern times.To this we must add that modern courts of law have from time to time been puzzled by the appearance before them of classes of tenants seeming to occupy a middle state between that of freeholders and that of copyholders. They are said to hold “according to the custom of the manor,” but not “at the will of the lord”; they convey their tenements sometimes by surrender and admittance in the lord’s court, sometimes by a deed of bargain and sale followed by an admittance; often they are subject to some of the usual burdens of copyhold tenure. They have come sometimes from manors which formed part of the ancient demesne, sometimes from other manors; in particular they have often come from a part of England in which, if Domesday Book be the final test, there can be no ancient demesne, namely, from the northernmost counties. Now it would be foolish to argue that the ancestors in law of any given group of such tenants enjoyed in the thirteenth century a condition superior to that of the ordinary tenants in villeinage. The full formula which is supposed to describe the tenure of the copyholder—“to hold at the will of the lord according to the custom of the manor”—is seldom found on the earliest court rolls. Any set of early court rolls is likely to show many variations in the phrases used about one and the same set of tenements, and in any particular case the omission of all allusion to the will of the lord from the formula which became current in the manorial court or the steward’s office, may be of recent origin and the outcome of an accident. An example may show how rash such inferences may be. The Dean and Chapter, successors of the Prior and Convent, of Durham have (it is said) no copyholders, having succeeded in proving that their peasant tenants held only for life and without any right of renewal. The Bishop of Durham has, or lately had, plenty of copyholders. But in all probability the explanation of this difference is to be found in what from our point of view are comparatively modern times. The convent, like many other religious houses, took steps to prevent its villein or “bondage” tenements from being heritable in fact; the “corporation sole” was less far-sighted than the “corporation aggregate.”589 And again, the modern cases which introduce us to “customary freeholders” seldom tell us of more than one class of customary tenants on the manor that is in question:—on that manor there are no tenants who are said to hold “at the will of the lord.” Still when all the modern evidence is taken in the mass, it supports the inference that we should have drawn from the state of the ancient demesne. That inference is that the very general absence in the thirteenth century of any class of tenants mediate between the freeholders, who enjoy full and immediate royal protection, and the customary tenants, who (as men are beginning to say) hold at the will of the lord, is of late origin, the effect of legal rules and legal theories rather than of ancient economic facts.

No place for a tenure between freehold and villeinage.With its newly centralized royal justice, the law of the thirteenth century has no place for the sokeman. Even when he is preserved on the royal demesne, it hardly knows how to deal with him, can hardly decide whether he is a freeholder, thinks that he may be a freeholder as regards some and not as regards others. Outside the ancient demesne it proposes the dilemma, “Protected by the king or not protected by the king, and if not protected by him, then held at the will of the lord.” But if we strive to go behind the amazing activity of the king’s court, as behind a new thing, if we think of the freeholder as having to go in the first instance to his lord’s court and hardly able as a matter of fact to get much further, then the edge of the dilemma is blunted. That the application of this logical weapon did some immediate harm to the higher classes of peasants can hardly be doubted. Our legal terminology does indeed suggest that not a few of them, in particular not a few of the sokemen, fell at once on the right side of the line. How else can it happen that “free socage” became the name of a free tenure, a tenure by which even in Bracton’s day barons and knights are well content to hold? But, on the whole, the doctrine of the lawyers seems to have been that any considerable amount of labour service must be villein service, must make the tenure unfree and unprotected, because it cannot but be service which in many particulars will be done at the will of the lord. Such a doctrine must have condemned many a sokeman of the twelfth century to hold in villeinage.

The “conventioners.”But of the past history of those tenures which are not freehold we must not speak in this place, for, however sharply the lawyers may contrast the two, villein tenure is, as a matter of fact, closely connected with villein status, a topic which will come before us in the next chapter. We have, however, yet to say a few words about a class of tenants who passed under our notice when we were transcribing Bracton’s account of the ancient demesne. Marked off from the “privileged villeinage” of the sokeman stands the tenure of certain adventitii, who, though they perform services similar to those of the sokemen, do not belong to that privileged race. They are regarded as “outsiders” who have recently come to the manor, who have taken tenements under agreements (conventiones), who must perform agricultural services and who are protected by law; but their title to protection is given them not by the custom of the manor, but by the terms of the agreement; we have called them “conventioners.”590 Bracton’s own opinion seems to be that their rights are not “real” rights; on the contrary, they are personal, contractual rights, to be enforced not by possessory or proprietary actions but by an action on the covenant. However, he admits that others thought differently, would have allowed these men the possessory assizes and therefore, for this would follow, would have treated them as freeholders. Bracton’s doctrine about this matter represents, so we may guess, rather a passing inclination than a settled practice. Two great causes made against its perdurance. In the first place, the theory that the sokemen were a privileged race, that the privilege ran, if we may so speak, rather in their blood than in their tenure, though we may find many traces of it, could not be permanently maintained. The day for racial laws was past, and as a matter of practice no barrier could be kept up between the natural progeny of the sokemen and these “adventitious” conventioners. In the second place, the whole tendency of English land law was setting strongly in favour of the principle that any one who has a right to be in the occupation of land has a right in the land, and whilst in occupation has a true possession of the land. This is seen most clearly in the treatment of tenants for terms of years. For a short while an attempt had been made to treat them as having rights, but merely personal, contractual rights; but, before Bracton wrote, the attempt had broken down, and the termor was considered as possessing the land and as having rights in it. And so with these conventioners:—Bracton’s suggestion is very interesting, especially because he thinks that even an unfreeman may have a remedy upon a covenant against the covenantor; but we cannot find that it struck deep root.591 On the whole, outside the ancient demesne, the law maintains the dilemma, “Freehold, or unprotected by law”; while even on the ancient demesne, “Freehold, Absolute Villeinage, Privileged Villeinage (Sokemanry)” exhaust all the possible cases.

Conclusion.Thus at the end of this prolonged account of the law of tenure we are brought back to a remark with which we started. Everywhere we see at first sight a simplicity that is truly marvellous. All the variegated facts of landholdership have been brought under the sway of a single formula, “the formula of dependent tenure,” and the only modes of tenure which the law distinguishes are very few. If the reader does not think that our law is simple, he should look abroad or he should look at the facts which our law has endeavoured to master. Has endeavoured to master, we say, for it has not succeeded at every point in its grand undertaking. It has dealt rudely with the facts, it has neglected many a distinction of great social and economic importance, it has driven its trenchant dilemmas through the middle of natural classes and athwart some lines of customary morality; but it has been bold and strong and therefore simple.

CHAPTER II

The Sorts and Conditions of Men

Law of personal condition.Of the divers sorts and conditions of men our law of the thirteenth century has much to say; there are many classes of persons which must be regarded as legally constituted classes. Among laymen the time has indeed already come when men of one sort, free and lawful men (liberi et legales homines) can be treated as men of the common, the ordinary, we may perhaps say the normal sort, while men of all other sorts enjoy privileges or are subject to disabilities which can be called exceptional. The lay Englishman, free but not noble, who is of full age and who has forfeited none of his rights by crime or sin, is the law’s typical man, typical person. But besides such men there are within the secular order noble men and unfreemen; then there are monks and nuns who are dead to the world; then there is the clergy constituting a separate “estate”; there are Jews and there are aliens; there are excommunicates, outlaws and convicted felons who have lost some or all of their civil rights; also we may here make mention of infants and of women, both married and unmarried, even though their condition be better discussed in connexion with family law, and a word should perhaps be said of lunatics, idiots and lepers. Lastly, there are “juristic persons” to be considered, for the law is beginning to know the corporation.

But if for a while we fix our attention on the lay order, it may seem to us that, when compared with the contemporary law of France or at any rate of Germany, our law of status is poor: in other words, it has little to say about estates or ranks of men. Men are either freemen or serfs; there is not much more to be said. When compared with tenure, status is unimportant.

Status and estate.This much we might learn from the history of a technical term. Our modern English writers on jurisprudence are constantly put to shifts for a word which shall translate the Latin status and frequently have to leave it untranslated; estate would make us think of rights in land, and condition also has hard work to do in our law of property and of obligations. The fate in England of the word status or estate is very curious. Bracton could still sharply oppose it to rights in land. A favourite maxim of his is that a man’s free or villein tenure of a tenement does not affect his free or villein estate.1 But very soon after his death we hear of a man having a status in fee simple or a status for life, and though such a phrase as “the three estates of the realm” may endure, and our church may bid us pray “for all estates of men,” still the English lawyer when he hears of estates will think first of rights in land, while the English layman will, like enough, think of land itself, of fields and houses. This means that our land law has been vastly more important than our law of ranks. And so it is at an early time; we read much more in the law-books of tenants by knight’s service, serjeanty, burgage, socage, than of knights, serjeants, burgesses and sokemen; nay, even the great distinction between bond and free is apt to appear in practice rather as a distinction between tenures than as a distinction between persons.

§ 1.

The Earls and Barons

The baronage.Our law hardly knows anything of a noble or of a gentle class; all freemen are in the main equal before the law. For a moment this may seem strange. A conquered country is hardly the place in which we should look for an equality, which, having regard to other lands, we must call exceptional. Yet in truth it is the result of the Conquest, though a result that was slowly evolved. The compiler of the Leges Henrici would willingly have given us a full law of ranks or estates of men; but the materials at his command were too heterogeneous: counts, barons, earls, thegns, Norman milites, English radknights, vidames, vavassors, sokemen, villeins, ceorls, serfs, two-hundred men, six-hundred men—a text writer can do little with this disorderly mass. But a strong king can do with it what he pleases; he can make his favour the measure of nobility; they are noble whom he treats as such. And he does not choose that there shall be much nobility. Gradually a small noble class is formed, an estate of temporal lords, of earls and barons. The principles which hold it together are far rather land tenure and the king’s will than the transmission of noble blood. Its members have political privileges which are the counterpart of political duties; the king consults them, and is in some sort bound to consult them, and they are bound to attend his summons and give him counsel. They have hardly any other privileges. During the baron’s life his children have no privileges; on his death only the new baron becomes noble.

Privileges of the barons.The privileges of the earl or the baron are, we say, extremely few. Doubtless from of old every freeman was entitled to be judged by his peers:2 that is to say, he was entitled to insist that those who were to sit as his judges should not be of a legal rank lower than his own. Under the dominance of the law of tenure this rule would take the form that a vassal is not to be judged by sub-vassals. So long as the king’s court was a court of tenants in chief any man would have found there those who were at least his equals, and even in a county court there would have been barons enough to judge any baron. As the administration of royal justice gradually became the function of professional lawyers, the cry for a iudicium parium was raised by the nobles, and in words this was conceded to them.3 For a long time, however, the concession had no very marked effect, because the court held coram Rege, though for every-day purposes but a bench of professional justices, might at any moment assume a shape to which no baron could have taken exception; even a parliament to which all the barons had been summoned might still be regarded as this same court taking for the nonce a specially solemn form. And the meaning of the rule was not very plain. On the one hand, we hear the assertion that even in civil suits the earl or baron should have the judgment of his peers,4 on the other hand Peter des Roches, the king’s minister, can say that the king’s justices are the peers of any man,5 and the very title of the “barons” of the exchequer forbids us to treat this as mere insolence. And so Bracton gives us no doctrine as to the privilege of the barons. He does recognize the distinction between the king’s court of justices and the king’s court of “peers,” but for the sake of a quite other doctrine, which left but few traces in later law. When there is a charge of treason, the king himself is the accuser, and life, limb and inheritance are at stake; therefore it is not seemly that the king, either in person or by his justices, who represent his person, should be judge; so Bracton throws out the suggestion that the cause should come before the “peers.”6 We have here no privilege of peerage, but a special rule for all cases of high treason, based on the maxim that no one should be judge in his own cause. Under the Edwards the privilege of peerage was gradually ascertained, as the court of law held coram Rege, which by this time was known as the King’s Bench, became more utterly distinct from the assembly of the barons. But in the end the baron had gained very little. If charged with treason or felony, he was tried by his peers; if charged with a misdemeanour (transgressio), if sued in a civil suit by high or low, if the king challenged his choicest franchises, there was no special court for him; he had to abide the judgment of the king’s justices.7 A certain freedom from arrest in civil causes we may perhaps allow him; but in Bracton’s age arrest in civil causes was as yet no common event. That the tenant in chief could not be excommunicated without the king’s leave was a privilege of the king rather than of the baronage. One other privilege the baron had, but it was of questionable value. When he was adjudged to be in the king’s mercy, the amount of the amercement was fixed, or “affeered,” not by his merely “free and lawful” neighbours but by his peers. For this purpose, however, his peers were found in the “barons” of the exchequer8 and these experts in finance were not likely to spare him.9 There are a few little rules of procedure which distinguish the noble from the non-noble. Thus we are told that a summons to court should allow an earl one month, a baron three weeks, a freeman a fortnight;10 and we may see some traces of a rule which exempts a baron from the necessity of swearing.11 Even the members of the king’s family are under the ordinary law, though in their “personal” actions they have the same benefit of expeditious procedure that is enjoyed by merchants.12 Very different is the case of the king, who in all litigation “is prerogative.”

§ 2.

The Knights

The knights.Below the barons stand the knights; the law honours them by subjecting them to special burdens; but still knighthood can hardly be accounted a legal status. In the administration of royal justice there is a great deal of work that can be done only by knights, at all events if there are knights to be had. Four knights, twelve knights, are constantly required as representatives of the county court or as recognitors. For some purposes mere free and lawful men will serve, for others knights must be employed. On the whole we may say that knights are required for the more solemn, the more ancient, the more decisive processes. To swear to a question of possession, free and lawful men are good enough; to give the final and conclusive verdict about a matter of right, knights are needed. They are treated as an able, trustworthy class; but we no longer find any such rule as that the oath of one thegn is equivalent to the oath of six ceorls. In administrative law therefore the knight is liable to some special burdens; in no other respect does he differ from the mere freeman. Even military service and scutage have become matters of tenure rather than matters of rank, and, though the king may strive to force into knighthood all men of a certain degree of wealth, we have no such rule as that none but a knight can hold a knight’s fee. Still less have we any such rule as that none but a knight or none but a baron can keep a seignorial court.

§ 3.

The Unfree

The unfree.In the main, then, all freemen are equal before the law. Just because this is so the line between the free and the unfree seems very sharp. And the line between freedom and unfreedom is the line between freedom and servitude.13 Bracton accepts to the full the Roman dilemma: Omnes homines aut liberi sunt aut servi.14 He will have no mere unfreedom, no semi-servile class, no merely praedial serfage, nothing equivalent to the Roman colonatus.15 All men are either freemen or serfs, and every serf is as much a serf as any other serf.16 We use the word serf, not the word slave; but it is to be remembered that Bracton had not got the word slave. He used the worst word that he had got, the word which, as he well knew, had described the Roman slave whom his owner might kill. And the serf has a dominus; we may prefer to render this by lord and not by master or owner, and it is worthy of observation that medieval Latin cannot express this distinction; if the serf has a dominus, the palatine earl, nay, the king of England, so long as he is duke of Aquitaine, has a dominus also, and this is somewhat in the serf’s favour; but still Bracton uses the only words by which he could have described a slave and a slave-owner. True that servus is neither the commonest nor yet the most technical name for the unfreeman; more commonly he is called villanus or nativus, and these are the words used in legal pleadings; but for Bracton these three terms are interchangeable, and though efforts, not very consistent or successful efforts, might be made to distinguish between them,17 and some thought it wrong to call the villeins serfs,18 still it is certain that nativus always implied personal unfreedom, that villanus did the same when employed by lawyers, and that Bracton was right in saying that the law of his time knew no degrees of personal unfreedom. Even in common practice and by men who were not jurists the word servus was sometimes used as an equivalent for nativus or villanus. The jurors of one hundred will call all the unfree people servi, while in the next hundred they will be villani.19 In French villein is the common word; but the feminine of villein is nieve (nativa).20

General idea of serfage.There are no degrees of personal unfreedom; there is no such thing as merely praedial serfage. A freeman may hold in villeinage; but that is an utterly different thing; he is in no sort a serf; so far from being bound to the soil he can fling up his tenement and go whithersoever he pleases.21 In later centuries certain niceties of pleading gave rise to the terms “villein in gross” and “villein regardant,” and in yet later times, when villeinage of any kind was obsolescent, these were supposed to point to two different classes of men, the villein regardant being inseverable from a particular manor, while the villein in gross might be detached from the soil and sold as a chattel. The law of Bracton’s time recognizes no such distinction.22 As a matter of fact and a matter of custom, English serfage may well be called praedial. In the first place, it rarely if ever happens that the serfs are employed in other work than agriculture and its attendant processes; their function is to cultivate their lord’s demesne. In the second place, the serf usually holds more or less land, at least a cottage, or else is the member of a household whose head holds land, and the services that he does to his lord are constantly regarded in practice as the return which is due from him in respect of this tenement or even as the return due from the tenement itself; such services, as we have already seen, are often minutely defined by custom. In the third place, his lord does not feed or clothe him; he makes his own living by cultivating his villein tenement, or, in case he is but a cottager, by earning wages at the hand of his wealthier neighbours. In the fourth place, he is seldom severed from his tenement; he is seldom sold as a chattel, though this happens now and again;23 he passes from feoffor to feoffee, from ancestor to heir as annexed to the soil. For all this, the law as administered by the king’s court permits his lord to remove him from the tenement. It could hardly have done otherwise, for he held in villeinage, and even a freeman holding in villeinage could be ejected from his tenement whenever the lord pleased without finding a remedy before the king’s justices. But as to the serf, not only could he be removed from one tenement, he could be placed in another; his lord might set him to work of any kind; the king’s court would not interfere; for he was a servus and his person belonged to his lord; “he was merely the chattel of his lord to give and sell at his pleasure.”24

Relativity of serfage.But, whatever terms the lawyers may use, their own first principles will forbid us to speak of the English “serf” as a slave: their own first principles, we say, for what we find is not a general law of slavery humanely mitigated in some details, but a conception of serfdom which at many points comes into conflict with our notion of slavery. In his treatment of the subject Bracton frequently insists on the relativity of serfdom. Serfdom with him is hardly a status; it is but a relation between two persons, serf and lord. As regards his lord the serf has, at least as a rule, no rights; but as regards other persons he has all or nearly all the rights of a freeman; it is nothing to them that he is a serf.25 Now this relative serfdom we cannot call slavery. As regards mankind at large the serf so far from being a mere thing is a freeman. This seems to be the main principle of the law of Bracton’s day. We must now examine each of its two sides: the serfs rightlessness as regards his lord, his freedom or “quasi-freedom” as regards men in general. It will then remain to speak of his relation to the state.

(1)The serf in relation to his lord.In relation to his lord the general rule makes him rightless. Criminal law indeed protects him in life and limb. Such protection however need not be regarded as an exception to the rule. Bracton can here fall back upon the Institutes:—the state is concerned to see that no one shall make an ill use of his property.26 Our modern statutes which prohibit cruelty to animals do not give rights to dogs and horses, and, though it is certain that the lord could be punished for killing or maiming his villein, it is not certain that the villein or his heir could set the law in motion by means of an “appeal.”27 The protection afforded by criminal law seems to go no further than the preservation of life and limb. The lord may beat or imprison his serf, though of such doings we do not hear very much.28

Rightlessness of the serf.As against his lord the serf can have no proprietary rights. If he holds in villeinage of his lord, of course he is not protected in his holding by the king’s courts; but then this want of protection we need not regard as a consequence of his serfdom, for, were he a freeman, he still would be unprotected; and then, just as the freeman holding in villeinage is protected by custom and manorial courts, so the serf is similarly protected.29 His rightlessness appears more clearly as regards his chattels and any land that he may have acquired from one who is not his master. As regards any movable goods that he has, the lord may take these to himself. We hear indeed hints that his “wainage,” his instruments of husbandry, are protected even against his lord,30 and that his lord can be guilty against him of the crime of robbery;31 but these hints are either belated or premature; the lord has a right to seize his chattels. But it is a right to seize them and so become owner of them: until seizure, the serf is their owner and others can deal with him as such.32 As a matter of fact we hear little of arbitrary seizures, much of seizures which are not arbitrary but are the enforcement of manorial customs. The villeins are constantly amerced and distrained; the lord in his court habitually treats them as owners of chattels, he even permits them to make wills, and when they die he contents himself with a heriot.33 So here again, when we look at the facts, the serf’s condition seems better described as unprotectedness than as rightlessness, though doubtless a lord may from time to time seize goods without being able to justify the seizure by reference to custom. Then, if the serf acquires land from some third person to hold by free tenure, he whose serf he is may seize it and hold it; but until such seizure the serf is tenant and others may and must treat him as such.

Serfdom de iure and de facto.And then we find that all this rightlessness or unprotectedness exists only where serfdom exists de facto. The learning of seisin or possession and the rigid prohibition of self-help have come to the aid of the serfs. Serfdom and liberty are treated as things of which there may be possession, legally protected possession.34 A fugitive serf may somewhat easily acquire a “seisin” of liberty. When he is seised of liberty the lord’s power of self-help is gone; he can no longer capture the fugitive without a writ; he can no longer take any lands or chattels that the fugitive may have acquired since his flight.35 He must have recourse to a writ, and the fugitive will have an opportunity of asserting that by rights he is a freeman, and of asserting this in the king’s court before justices who openly profess a leaning in favour of liberty.36 We need not suppose that this curious extension of the idea of possession is due to this leaning; it is part and parcel of one of the great constructive exploits of medieval law:—relationships which exist de facto are to be protected until it be proved that they do not exist de iure. Still the doctrine, though it had a double edge, told against the lords. Apparently in Bracton’s day a serf who fled had to be captured within four days; otherwise he could not be captured, unless within year and day he returned to “his villein nest”:37 a parallel rule gave the ejected landholder but four days for self-help.38 Of course, however, every absence from the lord’s land was not a flight; the serf might be living elsewhere and making some periodic payment, chevagium, head-money, in recognition of his lord’s rights: if so, he was not in seisin of his liberty. What the Institutes say about domesticated animals can be regarded as to the point.39

Covenant between lord and serf. Yet another qualification of rightlessness is suggested. More than once Bracton comes to the question whether the lord may not be bound by an agreement, or covenant, made with his serf. He is inclined to say Yes. His reasoning is this:—the lord can manumit his serf, make him free for all purposes; but the greater includes the less; therefore the serf may be made a freeman for a single purpose, namely that of exacting some covenanted benefit, and yet for the rest may remain a serf.40 Such reasoning is natural if once we regard serfdom as a mere relationship between two persons. It does not, however, seem to have prevailed for any long time, for our law came to a principle which was both more easily defensible and more hostile to serfdom, namely that if the lord makes a covenant with his serf, this implies a manumission; he becomes free because his lord has treated him as free.41 Bracton’s doctrine very possibly had facts behind it and was no empty speculation, for we do find lords making formal agreements with their serfs;42 but it ran counter to a main current of English land law. The agreements that Bracton had in view were in the main agreements relating to the tenure of land, and as we have already seen,43 our law was strongly disinclined to recognize any contract concerning the occupation of land which was merely a contract and not a bestowal of “real” rights: it urged the dilemma—no right to occupy land or some one of the known forms of legal tenure.

(2)The serf in relation to third persons.The serf’s position in relation to all men other than his lord is simple:—he is to be treated as a freeman.44 When the lord is not concerned, criminal law makes no difference between bond and free, and apparently the freeman may have to do battle with the bond. A blow given to a serf is a wrong to the serf. It may also give his lord a cause of action against the striker; but here also the law makes no difference between bond and free. If my serf is assaulted so that I lose his services or so that I suffer contumely, I have an action for damages; but it would be no otherwise had the assaulted person been my free servant.45 So also in defining the master’s liability for wrongful acts done by his dependants, the same principles as regards authorization and ratification seem to be applied whether the dependants be free servants or serfs.46 It is rather for the acts of members, free or bond, of his household (manupastus, mainpast) that a man can be held liable than for the acts of his serfs.47

The serf’s property.Then in relation to men in general, the serf may have lands and goods, property and possession, and all appropriate remedies. Of course if he is ejected from a villein tenement, he has no action; the action belongs to the lord of whom he holds the tenement, who may or may not be his personal lord; were he a freeman holding in villeinage he would be no better off.48 But the serf can own and possess chattels and hold a tenement against all but his lord. This general proposition may require some qualifications or explanations in particular instances. We read in the Dialogue on the Exchequer that if the lord owes scutage to the crown his serf’s chattels can be seized, but ought not to be seized until his own chattels have been exhausted;49 we read in Bracton that when a lord is to be distrained his villein’s chattels should be the very first object of attack;50 but in these cases we may say that the serf, having no proprietary rights against his lord, is treated as having none against those who by virtue of legal process are enabled to claim what the lord himself could seize:—the general principle is hardly impaired by such qualifications, and it is a most important principle.

Relative serfdom.Still it is not a natural principle. This attempt to treat a man now as a chattel and now as a free and lawful person, or rather to treat him as being both at one and the same moment, must give rise to difficult problems such as no law of true slavery can ever have to meet. Suppose for example that a villein makes an agreement with one who is not his lord; it seems certain that the villein can enforce it; but can the other contractor enforce it? To this question we have a definite answer from Britton:51 —a contract cannot be enforced against a villein; if he is sued and pleads “I was the villein of X when this agreement was made and all that I have belongs to him,” then the plaintiff, unless he will contradict this plea, must fail and his action will be dismissed; nor can he sue X, for (unless there is some agency in the case) the lord is not bound by his serf’s contract. In later times this rule must have been altered; the plea “I am the villein of X and hold this land of him in villeinage” was often urged in actions for land, but we do not find the plea “I am the villein of X ” set up in purely “personal” actions, as assuredly it would have been had it been a good plea.52 But, even if we admit that a villein may be sued upon a contract, the creditor’s remedy is precarious, for the lord can seize all the lands and chattels of his serf, and an action against his serf is just what will arouse his usually dormant right. Thus the law, in trying to work out its curious principle of “relative servitude,” is driven to treat the serf as a privileged person, as one who can sue but cannot be sued upon a contract; and, even when it allows that he can be sued, it can give the creditor but a poor chance of getting paid and will hardly prevent collusion between villeins and friendly lords. Again, we see the ecclesiastical courts condemning the villein to pay money for his sins, fornication and the like, and then we see the villein getting into trouble with his lord for having thus expended money which in some sort was his lord’s.53 The law with its idea of relative servitude seems to be fighting against the very nature of things and the very nature of persons.

(3)The serf in relation to the state.Lastly, we should notice the serf’s position in public law. It is highly probable that a serf could not sit as the judge of a freeman, though it may be much doubted whether this rule was strictly observed in the manorial courts.54 He could not sit as a judge in the communal courts, though he often had to go to them in the humbler capacity of a “presenter.” So too he could not be a juror in civil causes; this he probably regarded as a blessed exemption from a duty which fell heavily on freemen. But in criminal matters and in fiscal matters he had to make presentments. At least in the earlier part of the century, the verdict or testimony which sends freemen to the gallows is commonly that of twelve freemen endorsed by that of the representatives of four townships, and such representatives were very often, perhaps normally, born villeins. Such representatives served on coroners’ inquests, and the king took their testimony when he wished to know the extent of his royal rights.55 In the “halimoots” or manorial courts the serfs are busy as presenters, jurors, affeerers of amercements, if not as judges; they fill the manorial offices; the reeve of the township is commonly a serf. What is more, the state in its exactions pays little heed to the line between free and bond; it expects all men, not merely all freemen, to have arms;56 so soon as it begins to levy taxes on movables, the serfs, if they have chattels enough, must pay for them.57 It is but a small set-off for all this onerous freedom that a serf cannot be produced as champion or as compurgator; and even this rule is made to operate in favour of liberty; if a lord produces a serf as champion or compurgator this is an implied manumission.58 The serfs have to bear many of the burdens of liberty. The state has a direct claim upon their bodies, their goods, their time and their testimony, and if for a moment this seems to make their lot the less tolerable, it prevents our thinking of them as domestic animals, the chattels of their lords.

How men become serfs.Having seen what serfdom means, we may ask how men become serfs. The answer is that almost always the serf is a born serf; nativus and villanus were commonly used as interchangeable terms.59 But as to the course by which serfdom is transmitted from parent to child we find more doubts than we might have expected.Servile birth. If both parents are serfs, of course the child is a serf; but if one parent is free and the other a serf, then difficulties seem to arise. The writer of the Leges Henrici holds that the child follows the father; but he quotes the proverb, “Vitulus matris est cuiuscunque taurus alluserit,” and seems to admit that in practice the child is treated as a serf if either of the parents is unfree.60 Glanvill is clear that the child of an unfree woman is a serf and seems to think that the child of an unfreeman is no better off.61 Thus we should get the rule, which had been approved by the church, namely, that, whenever free and servile blood are mixed, the servile prevails.62 Bracton, however, has a more elaborate scheme. A bastard follows the mother; the child of a bondwoman, if born out of wedlock, is a serf; if born in wedlock and of a free father, then another distinction must be taken; if a freeman takes a bondwoman to wife and they dwell in her villein tenement, then their offspring will be born serfs, but if she follows him to “a free couch” then their children will be born free. So also when a bondman marries a free woman, the character of the tenement in which they dwell determines the character of their offspring.63 The influence thus ascribed to the tenement is very curious; it shows that to keep villein status and villein tenure apart was in practice a difficult matter, even for a lawyer ever ready to insist that in theory they had nothing to do with each other. In later days the courts seem to have adopted the simple rule that the condition of the father is the decisive fact, and to have pressed this rule to the absurd, if humane, conclusion that a bastard is always born free since he has no father.64

Mixed marriages. “Mixed marriages” indeed gave a great deal of trouble throughout the middle ages by raising questions as to the rights and remedies of the husband and wife.65 Ultimately “the better opinion of our books” was that the marriage of a female serf with a freeman, other than her lord, did not absolutely enfranchise her, but merely made her free during the marriage.66 In 1302, however, we find two justices denouncing this doctrine as false, “and worse than false, for it is heresy”; apparently they think that such a marriage has all the effect of a manumission; but their opinion did not go undisputed.67 Such a marriage would not at any rate drag down the freeman into personal servitude, though according to Bracton the issue of it would be serfs if they were born in the villein tenement. In the converse case in which a bondman marries a free woman, he of course is not enfranchised, though Bracton’s doctrine would make their children free if born in her free tenement. On the contrary, it might be thought that, at all events if she went to live along with her villein husband in his villein tenement and to bear him villein children, she herself would be accounted a villein. But this was not the rule. How far during the marriage she could make good any rights against her husband’s lord (and it will be remembered that as against all others her husband was a freeman) was very doubtful; she could not sue without her husband, and if he joined in the action, the lord would say, “You are my villein.”68 But on her husband’s death she would be free once more, or rather her freedom would once more become apparent and operative.69

Influence of place of birth.Faint traces may be found of an opinion that birth in a certain district or a certain tenement will make the child unfree, or as the case may be free, no matter the condition of its parents; but, except in the well-known privilege of Kentish soil, it seems to have found no legal sanction.70

Villeins by confession.A person born free rarely becomes a serf. When Bracton speaks of prisoners of war being held as slaves and of a freedman being reduced to slavery on account of his ingratitude, this is but romanesque learning.71 We do not in this age hear of servitude as a punishment, though the Welsh marchers claim the right of selling criminals as slaves,72 and King John can threaten all men with slavery if they do not take arms to resist an invasion.73 Nor do we any longer hear of freemen selling themselves into slavery. But it is a principle of law that if a person has once confessed himself the serf of another in a court of record, he can never thereafter be heard to contradict this assertion, and so “confession” takes its place beside “birth” as one of the origins of servility. There are abundant cases in our records which suggest that this talk about confession is not idle;74 a defendant sometimes seeks to evade a plaintiff’s demand by confessing that he is the villein of a third person, and thus, even in the later middle ages, men may sometimes have purchased peace and protection at the cost of liberty.75

Serfdom by prescription.Whether prolonged serfdom de facto will generate serfdom de iure was in Edward I.’s day a moot point. Some justices laid down as a maxim that no prescription can ever make servile, blood that once was free. Others flatly denied this rule, and apparently held that if from father to son a succession of freemen went on doing villein services, the time would come when an unfree child would be born to a free father. One opinion would have condemned to servitude the fifth generation in a series of persons performing base services, while a Scottish law-book mentions the fourth generation, and a common form of pleading made a lord assert that he had been seised of the grandfather and great-great-grandfather of the man whose liberty was in dispute. Opinion might fluctuate about this question, because procedural rules prevented it from being often brought to a decision. The general rule as to the means by which free or servile status could be conclusively proved was that it must be proved per parentes. If the burden of proof lay on the person whose status was in question, he had to produce free kinsmen; if it lay on the would-be lord, he had to produce kinsmen of the would-be freeman who would confess themselves serfs. A mere verdict of the country might settle the question provisionally and, as we may say, for possessory purposes, but could not settle it conclusively except as against one who had voluntarily submitted to this test. The burden of the proof is thrown on one side or on the other by seisin; the man who is in de facto enjoyment of liberty continues to be free until his servility is proved; the man who is under the power of a lord must remain so until he has shown his right to liberty. On the whole the procedural rules seem favourable to freedom. In Bracton’s day a four days’ flight76 might throw the burden of proof upon the lord, and he would have to make out his title, not by the testimony of free and lawful neighbours, who would naturally infer serfdom de iure from serfdom de facto, but by the testimony of the fugitive’s own kinsfolk as to the fugitive’s pedigree, and they must confess themselves serfs before their testimony can be of any avail.77 On the other hand, if a man has been doing villein services, he may as a matter of fact easily fall into serfage, unless he is willing to run from hearth and home and risk all upon a successful flight and an action at law. If for generation after generation his stock has held a villein tenement and done villein services he will be reckoned a villein, that is, a serf; even his kinsfolk will not dare to swear that he is free. There is no form of service so distinctively servile that it must needs be ascribed to servile status and not to villein tenure; even the merchet, which is regarded as the best test, may sometimes be paid ratione tenementi and not ratione personae;78 but a prolonged performance of villein services must put a family’s free status in jeopardy. That this is not so as a matter of law seems the opinion of the highest authorities; but the fact that a contrary opinion was current both in England and in Scotland may well make us think that in common life there had been a close connexion between villein tenure and villein status.79

How serfdom ceases.And now as to manumission:—A lord can easily enfranchise his serf. He can do so expressly by a charter of manumission; he does so impliedly by a grant of land to be held freely by the serf and his heirs,Manumission. for a serf can have no heir but his lord;80 he does so impliedly by certain acts which treat the serf as free, by producing him in the king’s court as his champion or his compurgator;81 it is becoming dangerous for a lord to make any written agreement with his serf.82 There has been a difficulty as to a direct purchase of liberty. If the serf paid money to the lord for the grant of freedom, the lord might, it would seem, revoke the grant on the ground that his serf’s money was his own money. This technical difficulty, for perhaps it was no more, was evaded by the intervention of a third person who made the purchase nominally with his own but really with the serf’s money, and the serf having been sold and delivered (the ownership did not pass until delivery) was then set free by his new owner.83

The freedman.In Bracton’s day every act of manumission by the lord seems to have conferred full and perfect freedom; the freedman was in all respects the equal of the free born. This could hardly have been otherwise since, as we have seen, serfdom was regarded for the more part as a mere relation between two persons. Glanvill seems to have held a different opinion. He speaks as though the liberation would make the serf free as regards his former lord but leave him a serf as regards all other men.84 The chief, if not the only, point that Glanvill had before his mind when he wrote this, seems to have been that the freed villein could not be produced as champion or as compurgator. It is possible also that he had in view acts of enfranchisement which were merely private and would not have denied that there were solemner methods by which absolute freedom could be conferred. In the Leges Henrici the man who wishes to free his serf must do so in public, “in a church or a market or a county court or a hundred court, openly and before witnesses”; lance and sword are bestowed on the new freeman and a ceremony is enacted which shows him that all ways lie open to his feet.85 Glanvill may have required some such public act if perfect liberty was to be conferred; but Bracton, who habitually regards serfdom as a mere relationship, sees no difficulty; the lord by destroying the relationship destroys serfdom. Here we seem to see a modern notion of relative serfdom growing at the expense of an older notion of true slavery. To turn a thing into a person is a feat that cannot be performed without the aid of the state but to make free as against yourself one who is already free as against all but you, this you can easily do, for it is hardly a matter of public law.86

Other modes of enfranchisement.A serf will also become free (1) by dwelling for year and day on the king’s demesne or in a privileged town—this is an assertion of a prerogative right which peoples the king’s manors and boroughs;87 (2) by being knighted—knighthood confers but a provisional freedom, for the knighted serf can be degraded when his servility is proved;88 (3) by entering religion or receiving holy orders; it is unlawful to ordain a serf—this is forbidden by canon as well as by temporal law,89 —but, when once ordained, he is free, though his serfdom revives if he resumes a secular life.90 The lord’s right of action for the recovery of a serf was subject to a prescriptive term; in 1236 the year 1210 was chosen as the limit, and this limit was not altered until 1275;91 we have already seen that his right of self-help the lord lost somewhat easily, though less easily as time went on.92

Summary.Such briefly stated is the English law of villeinage or serfage in the thirteenth century. Its central idea, that of the relativity of serfage, is strange. It looks artificial: that is to say, it seems to betray the handiwork of lawyers who have forced ancient facts into a modern theory. Slavery is very intelligible; so is slavery tempered by humane rules which will forbid an owner to maltreat his human chattel; so again is a praedial serfage, and the ancient laws of our race compel us to admit that there may be a half-free class, men who are neither liberi homines nor yet servi;93 but a merely relative serfdom is a juristic curiosity.94 In defining it we have ever to be using the phrases “in relation to,” “as regards,” “as against,” phrases which would not easily occur to the unlettered, and law which allows my serf to sue any freeman but me, even to sue my lord, does not look like a natural expression of any of those deep-seated sentiments which demand that divers classes of men shall be kept asunder. Then this idea of relative servitude has to be further qualified before it will square with facts and customs and current notions of right and wrong. When a lord allows it to be recorded that on the death of his servile tenant he is entitled to the best beast, he goes very far towards admitting that he is not entitled to seize the chattels of his serf without good cause. We hesitate before we describe the serf as rightless even as against his lord, and, if we infer want of right from want of remedy, we feel that we may be doing violence to the thoughts of a generation which saw little difference between law and custom. On the whole looking at the law of Bracton’s day we might guess that here as elsewhere the king’s court has been carrying out a great work of simplification; we might even guess that its “serf-villein,” rightless against his lord, free against all but his lord, is as a matter of history a composite person, a serf and a villein rolled into one.95

Retrospect.That this simplifying process greatly improved the legal position of the serf can hardly be doubted.Fusion of villeins and slaves. We need not indeed suppose that the theow or servus of earlier times had been subjected to a rigorously consistent conception of slavery. Still in the main he had been rightless, a chattel; and we may be sure that his rightlessness had not been the merely relative rightlessness of the “serf-villein” of later days, free against all but his lord. Indeed we may say that in the course of the twelfth century slavery was abolished. That on the other hand the villani suffered in the process is very likely. Certainly they suffered in name. A few of them, notably those on the king’s manors, may have fallen on the right side of the Roman dilemma “aut liberi aut servi,” and as freemen holding by unfree tenure may have become even more distinctively free than they were before; but most of them fell on the wrong side; they got a bad name and were brought within the range of maxims which described the English theow or the Roman slave.

The levelling process.Probably we ought not to impute to the lawyers of this age any conscious desire to raise the serf or to debase the villein. The great motive force which directs their doings in this as in other instances is a desire for the utmost generality and simplicity. They will have as few distinctions as possible. All rights in land can be expressed by the formula of dependent tenure; all conceivable tenures can be brought under some half-dozen heads; so also the lines which have divided men into sorts and conditions may with advantage be obliterated, save one great line. All men are free or serfs; all freemen are equal; all serfs are equal:—no law of ranks can be simpler than that. In this instance they had Roman law to help them; but even that was not simple enough for them; the notion of coloni who are the serfs of a tenement rather than of a person, though it might seem to have so many points of contact with the facts of English villeinage, was rejected in the name of simplicity.96 They will carry through all complexities a maxim of their own:—the serf is his lord’s chattel but is free against all save his lord. They reck little of the interests of any classes, high or low; but the interests of the state, of peace and order and royal justice are ever before them.

The number of the serfs.We have spoken at some length of the “serf-villeins” of the thirteenth century, for they formed a very large class. For several reasons precise calculations are impossible. In the first place, tenure is so much more important than status, at least so much more important as a matter of manorial economy, that the “extents” and surveys are not very careful to separate the personally free from the personally unfree. In the second place, it is highly probable that large numbers of men did not know on which side of the legal gulf they stood; they and their ancestors had been doing services that were accounted villein, paying merchet and so forth; but this was not conclusive, and if they escaped from their lord it might be very difficult for him to prove them his “natives.” On the other hand, while they remained in his power, they could have little hope of proving themselves free, and if they fled they left their all behind them. In the third place, a great part of our information comes from the estates of the wealthiest abbeys, and while admitting to the full that the monks had no wish to ill-treat their peasantry, we cannot but believe that of all lords they were the most active and most farsighted. Lastly, we have as yet in print but little information about certain counties which we have reason to suppose were the least tainted with servitude, about Kent (already in Edward I.’s time it was said that no one could be born a villein in Kent97 ), about Norfolk and Suffolk, about the Northumbrian shires. Still, when all is said, there remain the Hundred Rolls for the counties of Bedford, Buckingham, Cambridge, Huntingdon and Oxford, and no one can read them without coming to the conclusion that the greater half of the rural population is unfree. The jurors of various hundreds may tell us this in different ways; but very commonly by some name such as nativi or servi, by some phrase about “ransom of flesh and blood” or the like, they show their belief that taken in the lump those peasants, who are not freeholders and are not royal sokemen, are not freemen.

Rise of villeins.Occasionally a man who was born a villein might find a grand career open to him. It was said that John’s trusty captain Gerard de Athée, whose name is handed down to infamy by Magna Carta, was of servile birth;98 in 1313 the Bishop of Durham manumitted a scholar of Merton who was already a “master”;99 in 1308 Simon of Paris, mercer and alderman, who had been sheriff of London, was arrested as a fugitive villein, after being required to serve as reeve of his native manor.100

§ 4.

The Religious

Civil death.Another large part of medieval society is made up of men and women who have “entered religion and become professed,” of monks, nuns, “regular” canons and friars who have taken vows of poverty and obedience and quitted this world. Now a transition from the villein to the monk seems harsh. Bracton however makes it:—the villein being under the power of his lord may, like the monk, be considered as “civilly dead.”101 From the lawyer’s point of view the analogy that is thus suggested will not seem altogether fanciful and profitless. It is not as a specially holy person but as a property-less and a specially obedient person that law knows the monk. He has no will of his own (non habet velle, neque nolle102 ) because he is subject to the will of another, and, though as a matter of religion that will may be thought of as the divine will expressed in the rule of St. Benet or St. Bernard, still within the sphere of temporal law it is represented by the will of the abbot. It could not be suffered that by a mere declaration of his intention to live a holy life untroubled by mundane affairs a man should shuffle off not only the rights but the duties that the law has cast upon him; but a vow of obedience is a different matter; it is not very unlike a submission to slavery.

Growth of the idea of civil death.The fiction of “civil death” seems called in to explain and define rules of law which have been gradually growing up.103 By the dooms of Æthelred and of Cnut the cloister-monk is forbidden to pay or to receive the feud money, that is to say, the money payable by the kindred of a manslayer to the kindred of the slain, “for he leaves behind his kin-law when he submits to rule-law”; he ceases to be a member of a natural family when he puts himself under the monastic rule and enters a spiritual family.104 Already Alfred had decreed that if I entrust goods to “another man’s monk” without the leave of that monk’s “lord” and the goods are lost, I must go without remedy.105 At a later time we find the same principle applied if the monk to whom I have entrusted the goods denies the receipt of them, and the monk is here classed along with the slave, the wife, the infant child. These passages presuppose that we cannot sue the monk without his prelate, his “lord,” and they declare that the monk cannot make his prelate liable for the safety, or the return, or the price of goods, unless he has been expressly authorized to do so.106 But it is very doubtful whether in the days before the Conquest or even for some years afterwards the principle that is hinted at by the term “civil death” was rigorously enforced. The older and laxer forms of monasticism could not be overcome by one blow. In Æthelred’s day the cloisterless monk who recked not of the rule but was trying to make the best of both worlds was well known.107 We find too in Domesday Book that a monk will sometimes hold land of his house, or of his abbot, and the state seems to regard him as being the responsible tenant of that land.108

Meaning of civil death.But stricter notions began to prevail and to find expression in the term “civil death.” In one large department of law the fiction is elegantly maintained. A monk or nun cannot acquire or have any proprietary rights. When a man becomes “professed in religion,” his heir at once inherits from him any land that he has,109 and, if he has made a will, it takes effect at once as though he were naturally dead. If after this a kinsman of his dies leaving land which according to the ordinary rules of inheritance would descend to him, he is overlooked as though he were no longer in the land of the living; the inheritance misses him and passes to some more distant relative. The rule is not that what descends to him belongs to the house of which he is an inmate; nothing descends to him for he is already dead.110 In the eye of ecclesiastical law the monk who became a proprietarius, the monk, that is, who arrogated to himself any proprietary rights or the separate enjoyment of any wealth, committed about as bad an offence as he could commit.111

Difficulties arising from civil death.A fiction, however, which would regard a living man as dead must find that limits are set to it by this material world. A monk does wrong or suffers wrong; we cannot treat the case as though wrong had been done to a corpse or by a ghost. A monk of Ramsey assaults and beats a monk of Thorney; the law is not content that the injury should go unredressed. As regards those grave crimes which are known as felonies, the monk is dealt with as though he were an ordained clerk; he enjoys that “benefit of clergy” of which we must speak hereafter. For smaller offences, the “misdemeanours” of later law, monks, like secular clerks, could be tried by the temporal courts and imprisoned.112 As to torts or civil wrongs, the rule was that the monk could neither sue nor be sued without his “sovereign.” The man assaulted by a monk would bring his action against that monk and that monk’s abbot, while, if a monk were assaulted, his abbot and he could bring the action.113 The abbot seems to have been entitled to receive any compensation that became due for damage done to the monk, and to have been compelled to make amends for damage that the monk did. Our law did not say that a monk could not sue or be sued, it said that he could not sue or be sued without his sovereign. Nor did it say that a wrong done to a monk was the same as a wrong done to his abbot, or that a wrong done by a monk was the same as a wrong done by his abbot. It is not all one whether a monk of Ramsey has beaten a monk of Thorney, or the abbot of Ramsey has beaten the abbot of Thorney. The maxim Actio personalis moritur cum persona seems to have been applied as though the two monks were truly personae. The action died with the offending monk and with the offended. Often enough the analogy afforded by the law of husband and wife is brought into the debate. A blow given by John’s wife to Peter’s wife is not the same as a blow given by John to Peter; yet John may have to pay money because his wife is a striker and Peter may receive money because his wife has been stricken. If we may judge from the Year Books, a long time elapsed before accurate rules about this matter were evolved, and perhaps some questions were still open when the day came for the suppression of the monasteries. But the main principle that guides our lawyers in this region is, not that the monk is dead, but that, though he can do wrong and suffer wrong, he has not and cannot have any property. Problems which in themselves were difficult were made yet more difficult by the slow growth of the idea that the head of the monastery, though he is a natural person, is also in a certain sense an immortal, non-natural person, or “corporation sole,” and is likewise the head of a “corporation aggregate.”114

The monk as agent.A monk could make no contract; but he was fully capable of acting as the agent of his sovereign, and even in litigation he would often appear as the abbot’s attorney. A monk might be another man’s executor, for the execution of testaments is a spiritual matter.115 It would be a mistake to suppose that monks never took part in worldly affairs. The obedientiaries of a great abbey must often have been keen men of business, largely engaged in buying and selling, and the manorial courts of the abbey were frequently held by the cellarer or some other person who was civilly dead. Whatever the ecclesiastical law may do, the temporal law does not attempt to keep the monks out of courts and fairs and markets; it merely says that a monk has not and cannot have any property of his own.

Abbatial monarchy.The manner in which the monks were treated by the ecclesiastical law we shall not discuss; but the temporal law seems to have assumed that every monk was the absolute subject of some “sovereign”—normally an abbot, but in some cases a prior or a bishop.116 Whatever degree of “constitutional government,” of government in accordance with “the rule” or the statutes of the order, of government by an assembly, by a chapter, might prevail within the house, was no affair of the secular power. It treated the sovereign as an absolute monarch and would hardly be persuaded to step between him and his subjects. Against him they could urge no complaint. We may indeed suppose that he might have been indicted for slaying or maiming them; but even in this case he would have enjoyed the benefit of clergy and been sent for trial to an ecclesiastical court. So long as he did not deprive them of life or limb he committed no crime of which the lay tribunals would take any account, and undoubtedly the penances that were inflicted were sometimes extremely rigorous.117 According to the common law of the church the monks might appeal from their abbot to the bishop of the diocese, but some of the great houses were exempt from the bishop’s control and then there was no help to be had save from Rome. Occasionally the monks would unite to resist their abbot, and fierce and protracted litigation before the Roman curia would be the result.118 But the individual monk was helpless; if he escaped from his cloister, the temporal power would come to the aid of the church and deliver up this “apostate” to his ecclesiastical superiors.119

Return to civil life.Late in the day we hear discussions as to the possibility of the dead coming to life. In the fifteenth century lawyers said that, though the “sovereign” might release the monk from his obedience, none but the pope could restore him to the world of civil rights.120 Rules about such a point had not been very necessary, for dispensations from monastic vows had been uncommon. Of course in a manner the monk came back to legal life if he became the sovereign of a religious house, still more if, as well he might, he became a bishop; but it may be much doubted whether the lawyers of the thirteenth century would have seen in this the new birth of a natural person. They had not drawn any clear line between “natural” and “juristic” persons, and the monk who was elected to an abbacy became thereby persona ecclesiae, the human representative of a personified institution. Only by virtue of papal bull and royal charter could an abbot make a valid will, for “by the common law an abbot cannot have property or executors.”121 We are not sure that an abbot could have inherited from a kinsman. The dual personality of a bishop seems to have been more readily admitted, still, as we shall remark below, there had been much controversy as to whether a bishop had anything to leave by his will. It is not easily that lawyers come to think of one man as two persons, or to talk of “official capacities” and “corporations sole.”

Civil death as a development of the abbot’s mund.We cannot take leave of the monks without noticing that in medieval law monasticism is no such isolated phenomenon as it would be in modern law. Of course the relationship that exists between abbot and monk is not just that which exists between lord and villein, still less is it that which we see between husband and wife. But to compare these three relationships together is not the mere fetch of an advocate at a loss for arguments nor the fancy of a too subtle jurist. As a matter of history they well may have a common element. They all may be off-shoots of one radical idea, that of the Germanic mund, a word which we feebly render by guardianship or protection. Certain it is that our common law of husband and wife curiously reproduces some features of the law of abbot and monk, and we might understand the legal history of villeinage and the legal history of monasticism the better if we brought them into connexion with each other.

§ 5.

The Clergy

Legal position of the ordained clerk.Collectively the clergy are an estate of the realm. With this constitutional doctrine we are not here concerned, nor are we called upon to describe the organization of the clerical body; but, taken individually, every ordained clerk has a peculiar legal status; he is subject to special rules of ecclesiastical law and to special rules of temporal law. We cannot say that the clerk is subject only to ecclesiastical, while the layman is subject only to temporal law. Neither half of such a dogma would have been accepted by state or church. Every layman, unless he were a Jew, was subject to ecclesiastical law. It regulated many affairs of his life, marriages, divorces, testaments, intestate succession; it would try him and punish him for various offences, for adultery, fornication, defamation; it would constrain him to pay tithes and other similar dues; in the last resort it could excommunicate him and then the state would come to its aid. Even the Jews, though of course they were not members of the church, were (at least so the clergy contended) within the sphere of ecclesiastical legislation and subject to some of the processes of the spiritual courts.122 In general terms we can say no more than that the ordained clerk was within many rules of ecclesiastical law which did not affect the layman, and that it had a tighter hold over him, since it could suspend him from office, deprive him of benefice and degrade him from his orders. So, on the other hand, the clerk was subject to temporal law. It had some special rules for him, but they were not many.

The clerk under temporal law.At the end of Henry III.’s reign, with one great and a few petty exceptions, the clerk was protected by and subject to the same rules of temporal law which guarded and governed the layman. If a clerk was slain, wounded, robbed or assaulted, the wrong-doer would be punished by the temporal law just as though the injured person had been of the laity. The clerk could own chattels, he could hold land by any tenure, he could make contracts; the temporal law protected his possession and his proprietary rights, it enforced his contracts, without taking any note of his peculiar status. Even when he had to assert possessory or proprietary rights which belonged to him as the rector or persona of a church, he had to do this in the lay courts, usually by the very same actions that were competent to laymen, but sometimes by an action specially adapted to the needs of parsons.123 We count it no real exception that a clerk who had attained to the subdiaconate could not marry, for the validity of any marriage was a matter for ecclesiastical law; and on the other hand, though the canons forbad the clergy to engage in trade, we are not aware that the lay courts attempted to enforce this rule by holding that their trading contracts were void. Then the clerk was subject to the temporal law. All the ordinary civil actions could be brought against him; he could be sued on a contract, he could be sued for a tort, he could be sued as a disseisor, he could be sued as one who held what did not belong to him, and this although he was holding it in the name of his church. Moreover, for any crime that fell short of felony he could be tried and punished in the common way.

Exceptional rules applied to the clerk.There are a few small exceptions. As a general rule the ecclesiastical courts may not take cognizance of an act of violence. If a layman is assaulted, they will be prohibited from inflicting punishment or penance upon the offender. But violence done to the person of a clerk is within their competence. As already said it is also within the competence of the temporal tribunals. He who has assaulted a clerk may be fined or imprisoned for his breach of the king’s peace; he may be compelled to pay damages for the wrong that he has done; he may be put to penance for his sin;124 indeed he is already excommunicate lata sententia, and, except at the hour of death, can only be absolved by the pope or one who wields papal authority.125 In such a case the clergy do not care to urge their favourite maxim that no one is to be punished twice for the same offence. But this is a small matter. In civil causes a clerk enjoys a certain freedom from arrest,126 but this as yet is of no great importance. On the other hand, the lay courts have invented a special machinery for compelling the appearance of clerks who are sued in personal actions. They direct the bishop of the diocese to produce such clerks, and will proceed against his barony if he is negligent in this matter. For this purpose the clergy are treated as forming part of his familia —as being within his mund, we might say,—and the episcopal barony is a material pledge for their appearance.127 But this again is a small matter, and is far from being a privilege of the clergy; indeed they vigorously, but vainly, protest against this treatment.128

Benefit of clergy.It remains for us to speak of the one great exception, namely, that which is to be known for centuries as the “benefit of clergy.”129 It comes to this, that an ordained clerk, who commits any of those grave crimes that are known as felonies, can be tried only in an ecclesiastical court, and can be punished only by such punishment as that court can inflict. But we must descend to particulars, for generalities may be misleading. A clerk is charged with a murder; it is the sheriff’s duty to arrest him. Probably his bishop will demand him. If so, he will be delivered up; but the bishop will become bound in a heavy sum, a hundred pounds, to produce him before the justices in eyre. The bishop can keep him in prison and very possibly will do so, for, should he escape, the hundred pounds will be forfeited. In the middle of the thirteenth century it is matter of complaint among the clergy that owing to this procedure clerks may languish for five or six years in the episcopal gaol without being brought to trial.130 At last the justices come, and this clerk is brought before them, or some other clerk, who has not yet been arrested, is indicted or appealed before them. In the end it comes about by one means or another that they have before them a clerk indicted or appealed of felony. And now we may follow the words of the enrolment that will be made:—“And the said A. B. comes and says that he is a clerk and that he cannot— or, that he will not—answer here. And the official of the bishop of X comes and demands him as a clerk— or, comes and craves the bishop’s court.” In Bracton’s day the clerk will thereupon be delivered to the bishop or his officer and no inquest will be made by the justices touching guilt or innocence.131 But before the end of Henry III.’s reign the procedure will not be so simple.132 The roll of the court will go on to say—“Therefore let him be delivered; but in order that it may be known in what character (qualis) he is to be delivered [or, in order that the king’s peace may be preserved,] let the truth of the matter be inquired of the country. And the twelve jurors and the four neighbouring townships say upon their oath, that he is guilty, [or, not guilty] and therefore as such let him be delivered.” In other words the justices proceed to take “an inquest ex officio. ” This is not a trial; the clerk has not submitted to it; he has not pleaded; but a verdict is taken. If this is favourable to the accused, he is acquitted, at least in so far as a secular court can acquit him; but if the jurors are against him, then he is delivered to the bishop.133 In the one case his lands and goods, if they have been seized by the royal officers, are at once restored to him, unless he has been guilty of flight and has thus forfeited his chattels;134 in the other case they will be retained until he has been tried, and their fate will depend on the result of his trial.135 For tried he has not yet been. He will be tried in the bishop’s court.

Trial in the courts of the church.Of what went on in the bishop’s court we unfortunately know very little; but we have reason to believe that before the end of the century its procedure in these cases was already becoming little better than a farce. In criminal cases the canon law had adopted the world-old process of compurgation, and here in England the ecclesiastical courts had never reformed away this ancient mode of proof. The blame for this should not fall wholly upon the prelates. Very possibly the lay courts would have prevented them from introducing in criminal cases any newer or more rational form of trial. Had any newer form been introduced, it would have been that “inquisitorial” procedure which historians trace to the decretals of Innocent III.136 In the twelfth century we find an archdeacon who is accused of poisoning his archbishop directed to purge himself with three archdeacons and four deacons.137 Lucius III. told the Bishop of Winchester that he was too severe in investigating the character of compurgators.138 Bishop Jocelin of Salisbury cleared himself of complicity in the murder of Becket with four or five oath-helpers.139 Hubert Walter, sitting as archbishop, forbad that more compurgators than the canonical twelve should be demanded.140 Shortly before this we find the Bishop of Ely offering to prove with a hundred swearers that he took no part in the arrest of the Archbishop of York.141 No doubt in theory the ecclesiastical judge was not in all cases strictly bound to send the clerk to “his purgation.” If there was what was technically known as an accusatio, a definite written charge preferred by the person who was injured, the judge might hold that the accusation was fully proved by the accuser’s witnesses and might convict the accused.142 But the proof required of an accuser by the canon law was rigorous,143 and, from all we can hear, the common practice in England seems to have been to allow the clerk to purge himself. Archbishop Peckham at the instance of Edward I. vaguely ordered that this should not be done too readily;144 in the middle of the fourteenth century Archbishop Islip made a not very earnest effort for the same end;145 but the whole procedure was falling into contempt. Already in certain bad cases the lay courts were forbidding the bishops to admit the accused clerks to their purgation,146 that is, according to the old theory, were forbidding that these accused clerks should be tried at all. So early as 1238 we find the Bishop of Exeter in trouble for having sent to purgation a subdeacon who had been outlawed on a charge of murder, and, though the clerk has purged himself, he is compelled to abjure the realm.147 In Edward I.’s day the king’s justices could treat a canonical purgation with the scorn that it deserved.148

Punishment for felonious clerks.If he failed in his purgation the clerk was convicted and punished. At least in theory there were many punishments at the bishop’s disposal. The chief limit to his power was set by the elementary rule that the church would never pronounce a judgment of blood. He could degrade the clerk from his orders, and, as an additional punishment, relegate him to a monastery or keep him in prison for life. A whipping might be inflicted,149 and Becket, it seems, had recourse even to the branding iron.150 One of the minor questions in the quarrel between Thomas and Henry was whether an ecclesiastical court could exile a convicted clerk or compel him to abjure the realm.151 Innocent III. told the Bishop of London that clerks convicted of larceny or other great crimes were to be first degraded and then closely imprisoned in monasteries.152 In 1222 a church council under Stephen Langton seems to have condemned two of the laity to that close imprisonment which was known as immuration; the culprits had been guilty of fanatical blasphemy.153 In 1261 the constitutions of Archbishop Boniface required that every bishop should keep a proper prison, and declared that every clerk convicted of a capital crime should be kept in gaol for the rest of his life.154 This then was the punishment due to felonious clerks; we fear that but few of them suffered it.

What persons were entitled to the privilege.The privilege was not confined to clerks in orders, for it was shared with them by the monks, and there seems no reason for doubting that nuns were entitled to the same privilege, though, to their credit be it said, we have in our period found no cases which prove this.155 On the other hand, it had not as yet become the privilege of every one who could read or pretend to read a verse in the bible. The justices insist that ordination must be proved by the bishop’s letters. It is still regarded rather as the privilege of the church than of the accused clerk; if his bishop does not claim him he will be kept in prison, perhaps he will be compelled, as a layman would be compelled, to stand his trial.156 We are not able, however, to indulge the hope that the bishop allowed the criminal law to take its course unless he had some reason for believing that the clerk was innocent.157 The plea rolls seem to prove that his official sits day after day in the court of the justices in eyre and as mere matter of course “demands” every clerk who is accused; and in every eyre many clerks will be accused of the worst crimes and their neighbours will swear that they are guilty. By marrying a second time, or by marrying a widow, the clerk, who thus became bigamus, forfeited his immunities:—this rule, promulgated by the council of Lyons under Gregory X., was at once received in England and a retrospective force was attributed to it by a statute of Edward I.158

What offences were within the privilege. It is probable that already in the thirteenth century a clerk charged with high treason, at all events with one of the worst forms of high treason, such as imagining the king’s death or levying war against him, would in vain have relied on the liberties of the church.159 There seems even to have been some doubt as to whether counterfeiting the king’s seal was not a crime so high as to exceed the limits of the clerical immunity.160 At the other end of the scale the clerk charged with a mere transgressio, a misdemeanour we may say, enjoyed no exceptional privilege but could be fined or imprisoned like another man. Henry II. within a very few years after Becket’s death and while the whole of Christendom was ringing with the fame of the new martyr, was able to insist with the assent of a papal legate that forest offences were not within the benefit of clergy,161 and before the end of the next century the lay courts were habitually punishing the clergy for their transgressiones. However, it should be understood that the full extent of the clerical claim had been and was that, not merely every criminal charge, but every personal action, against a clerk was a matter which lay outside the competence of the temporal tribunal. This claim died hard; it was asserted near the end of Henry III.’s reign by a constitution of Archbishop Boniface; Bracton had to treat it with respect, though he rejected it. His doctrine even as to the felonies of clerks is a curious and we may say a very unclerical one. The king’s court does not try the accused clerk; but there is no sound principle which prevents its doing so. Still the appropriate punishment for the felonious clerk is degradation, and this the lay tribunal cannot inflict. The logical result of this would be that the king’s court should try the clerk and, should he be convicted, hand him over to the ordinary, not for trial, but for punishment. However at present this is not the practice.162 Probably it is in consequence of such reasoning as this that a few years later the king’s justices will not deliver up a clerk until they have first taken an “inquest of office” as to his guilt. Thereby they do their best to lessen the harm that is done by an invidious and mischievous immunity. The criminal will purge himself in the court Christian, but a jury of his neighbours will have sworn that he is guilty. Further we must remember that all along the justices insist that, though the clerk is not tried by a secular tribunal, none the less he can be and ought to be accused before it, and that he can be outlawed if he does not appear when he has been accused. In this way the criminal law has some hold over the clerk, though for centuries yet to come the benefit of clergy will breed crime and impede the course of reasonable and impartial justice.163

The Constitutions of Clarendon.Here we might prudently leave “the benefit of clergy,” for to speak of its earlier history is to meddle with the quarrel between Henry II. and Becket. Protesting however that it is not our part to criticize men or motives or policies, we are none the less bound to state, and if possible to answer, certain purely legal questions. These are in the main three:—(1) What was the scheme for the treatment of criminous clerks that Henry proposed in the most famous of the Constitutions of Clarendon? (2) What was the relation of that scheme to the practice of his ancestors? (3) What was its relation to the law of the catholic church as understood in the year 1164?

Henry II.’s scheme.(1) To the first question our answer will be brief.164 We must admit that historians have read the celebrated clause165 in various ways; but for our own part we cannot doubt that it means this:—A clerk who is suspected of a crime is to be brought before the temporal court and accused there; unless he will admit the truth of the charge, he must in formal terms plead his innocence; this done, he will be sent to the ecclesiastical court for trial; if found guilty he is to be deposed from his orders and brought back to the temporal court; royal officers will have been present at his trial and will see that he does not make his escape; when they have brought him back to the temporal court, he will then—perhaps without any further trial, but this is not clear—be sentenced to the layman’s punishment, to death or mutilation. Henry does not claim a right to try or to pronounce judgment upon the criminous clerk; on the contrary, he admits that the trial must take place in the ecclesiastical court; but he does insist upon three principles: (i) that the accusation must be made in the lay court, which will thus obtain seisin of the cause and be enabled to watch its further progress; (ii) that royal officers are to be present at the trial; (iii) that the clerk—or rather the layman, for such he will really be—who has been deposed from his orders for a crime, can be punished for that crime by the temporal power.166

To this scheme Becket objected in the name of the church’s law, and it is certain that he objected, not merely to the first two of these three rules, but also to the third, and this on the ground that it would punish a man twice over for one offence and thus infringe the maxim, Nec enim Deus iudicat bis in idipsum.167

(2) We turn to our second question. Did this scheme fairly represent the practice of Henry I.’s day?Henry’s scheme and past history. We note that it does not profess to represent the practice of Stephen’s day. For legal purposes Stephen’s reign is to be ignored, not because he was an usurper, but because it was a time of war and of “unlaw.” Sixty years later this doctrine still prevails; a litigant cannot rely on what happened in Stephen’s reign, for it was not a time of peace.168 Still, though the son of the Empress is but applying a general doctrine to a particular case, his pregnant assertion that the constitutions express his grandfather’s customs seems an admission that those customs had in some particulars gone out of use under his immediate predecessor.

Henry’s allegations not contested.So sparse is the evidence directly bearing on this question that we gladly catch at any admission made by either of the parties to the quarrel, and we may not unfairly urge that in this case judgment should go by default. Henry did assert repeatedly and emphatically with the concurrence of his barons and with the approval of many bishops that he was but restoring the old customs. Becket and his friends, so far as we can see, would not meet this allegation.169 When one of the martyr’s biographers reminds us that Christ said, not “I am the custom,” but “I am the truth,” we cannot but infer that on the question of fact Henry was substantially in the right. The archbishop and his partizans are fond of speaking of “the so-called customs,” as “pravities” and “abuses”; but they will not meet the king on his own ground.170

Earlier law. The Conqueror’s ordinance.This premised, we look for direct evidence to the reigns of the Norman kings. First we read how the Conqueror ordained that no bishop or archdeacon should administer the episcopal laws in the hundred court, nor bring to the judgment of secular men any cause relating to the rule of souls. Such causes the bishops are to decide, not according to hundred law, but according to the canons and the episcopal laws. The secular power is to aid the church against those whom she has excommunicated. The conduct of the ordeal as a specially ecclesiastical process is declared to be the bishop’s business.171 This tells us little that is to our point. William assumes that all men know what causes are spiritual, what secular. The only matter on which he speaks definitely is the ordeal, and here the two powers will cooperate harmoniously; the bishop will preside at the ceremony, but doubtless the order that sends a man to the fire or to the water will, at least in very many cases, be the order of the hundred court. Of any immunity of clerks from secular jurisdiction or temporal punishment there is no word.

The Leges Henrici.The author of the Leges Henrici is already borrowing from foreign canonists and we cannot tell how far he is stating customs that actually prevail in England. He says plainly enough that no accusation, be it for grave crime, be it for light offence, is to be brought against any ordained clerk save before his bishop.172 This certainly is at variance with one part of Henry II.’s claim, for Henry insisted that the first step in a criminal cause should be taken in the king’s court; but it does not touch the greater question of double punishment.

Precedents for the trial of clerks.We turn from general statements to recorded cases. We can find very few. Most of them may be called “state trials,” and it is not to state trials that we can trust for impartial applications of medieval law; but Domesday Book seems to tell of a clerk who was in peril of death or mutilation, for his body was in the king’s mercy.173 Lanfranc had no difficulty in advising the Conqueror that he might condemn his half-brother Odo to imprisonment and disherison on a charge of rebellion and treason, though Odo pleaded an immunity from secular justice.174 The king, so the great lawyer thought, might distinguish between the Earl of Kent and the Bishop of Bayeux though these two persons happened to be one man. But the case is not decisive, for the punishment did not touch life or member, and very probably Lanfranc could have shown to the satisfaction of all canonists that the warlike Odo had forfeited every clerical privilege by his scandalously military life.175 Of the trial of Bishop William of Durham for a treacherous rebellion against Rufus a long and lively report has come down to us.176 The bishop repeatedly and in strong, clear terms asserted his exemption from temporal justice:—he should be tried according to the sacred canons in a canonically constituted court. It will not satisfy him that among his judges there are his own metropolitan and the Archbishop of Canterbury and many bishops, for they are not clad in their episcopal vestments, they are mixed up with the lay nobles and are sitting under the king’s presidency. Lanfranc baffles and defeats him; judgment is pronounced upon him and pronounced by a layman, Hugh of Beaumont. The bishop appealed to Rome, but never prosecuted his appeal. Here the sentence merely was that the bishop’s fief was forfeited, and the severest canonist could not deny that a purely feudal cause was within the competence of the king’s court, nor perhaps could he have refuted Lanfranc’s opinion that if, after the judgment of forfeiture, the bishop would not surrender his fief, he might lawfully be arrested.177 Still less can be made of King Stephen’s proceedings against Bishop Roger of Salisbury, his nephews and his son. The king took advantage of an affray between the men of the bishops and the men of Earl Alan; he impleaded the bishops because their men had broken his peace, and by way of satisfaction demanded a surrender of their castles. This they refused. He then imprisoned them, maltreated them in gaol and went so far as to put a rope round the chancellor’s neck; he thus obtained the desired fortresses. An ecclesiastical council held by his brother, the legate, cited him; the immunity of clerks was strongly asserted; the king’s proceedings were condemned, and it is even said that he did penance for them; also at one time or another he appealed to Rome; but he kept the castles.178 However, before this Stephen had made a momentous concession: he had sworn that justice and power over ecclesiastical persons and over all clerks and their possessions should belong to the bishops; and by this oath he must, so we think, be taken to have admitted whatever claims of immunity could be fairly made in the name of canon law.179 Then concerning the treatment of criminous clerks in his reign we have a valuable story, which John of Salisbury, writing in the name of Archbishop Theobald, reported to the pope. Osbert, an archdeacon, was accused of having poisoned Archbishop William of York. The charge was preferred by a clerk who had been in the service of the dead prelate. It was made in the presence of King Stephen and the bishops and barons of England. The accuser was ready to prove his case by the hot iron or the boiling water, by battle, or by any other proof. Osbert relied on his clerical privilege and refused to be judged by laymen. Pledges were given on both sides for the further prosecution of the suit; they were given to the king, for the king insisted that, because of the atrocity of the crime and because it was in his presence that the accusation had been made, the case was within his jurisdiction. We and our brethren, says Theobald, protested. Now Stephen is dead and we have had the utmost difficulty in getting Osbert out of King Henry’s hands. We ordered him to purge himself; but he has appealed to you.180

Summary.From such isolated instances as these it would be impossible to extract any definite results for the history of law; but, while they are not inconsistent with Henry’s allegation about the customs of his grandfather, they seem to show that the canonical trial, which Henry was willing to grant, had not always been granted, even by Stephen.181 As to the law that prevailed in England before the Conquest little is known and little could be profitably said in this context, for the Conqueror’s ordinance must be treated as the beginning of a new era.182 However, when King Alfred ordains that the man-slaying priest is to be unhallowed by his bishop and then delivered up from the church, unless his lord will compound for the wergild, he is laying down one of the main principles for which Henry contended.183 If we would pursue the question behind the Norman Conquest, it is much rather the law of France than the law of England that should be studied. At least in this matter the Conqueror was an innovator, and the terms which he made with those who were to be the rulers of the English church were terms made by one who was not an Englishman with those who were not Englishmen. The early history of clerical privileges on the continent of Europe is a long and a dark tale and one that we cannot pretend to tell. Henry II.’s scheme was not unlike that which Justinian had sanctioned.184 In Henry’s day this resemblance was perceived by the learned and was much in his favour:—he was offering the clergy what the leges, the almost sacred leges, gave them.185 But the practice which had prevailed in Gaul was connected rather with the Theodosian Code than with Justinian’s legislation, and under the Merovingian and Karlovingian kings the Frankish clergy had not been able to obtain such liberal terms as Henry was willing to concede at Clarendon.186 During the age which saw the Pseudo-Isidore and his fellows at their work, the age which leads up to the pontificate of Gregory VII., the clerical claims were advancing. We think it very possible that Lanfranc would have demanded and the Conqueror conceded the general principle that the trial of the accused clerk must take place before the spiritual forum; but we may well doubt whether more than this would have been conceded or even demanded, whether as much as this could always be obtained. Of what happened during Stephen’s troubled reign we know too little, but the clerical claims were still advancing, were taking an accurate shape in the Decretum Gratiani, and it is not unlikely that Stephen was forced to allow that only before a spiritual court can a clerk be accused, though from this rule he might hope to maintain some exceptions.187

Henry’s scheme and canon law.(3) This leads us to our third question: Was Becket compelled by the law of the church, as it was understood in the year 1164, to reject Henry’s constitution? We must distinguish. There were two particulars in the plan, to which a canonist bred in the school of Gratian was entitled and bound to refuse his assent.188 A clerk in orders ought not to be accused of crime before the temporal judge, and the mission of royal officers to the church’s court can be regarded as an insult to the church’s justice. We cannot say that these matters were matters of detail; Henry thought them of grave importance; but they become insignificant when set beside the question of double punishment. Now as regards this vital point, Becket propounded a doctrine which, so far as we are aware, had neither been tolerated by the state nor consecrated by the church. He asserted that the state must not punish the criminous clerk for that crime for which he has already suffered degradation. In 1164 a good deal had lately been written about this matter by the most renowned canonists of the age. We do not say that there was no room for doubt; there were obscure passages in the Decretum which needed comment; but we can say that two of the most famous masters of the canon law had considered and overruled the opinion of St. Thomas, while we can name no writer who had maintained it. What is more, that opinion, though owing to his martyrdom it was suffered to do immeasurable mischief in England by fostering crime and crippling justice, was never consistently maintained by the canonists; had it been maintained, no deposed or degraded clerk would ever have been handed over to the lay power as a heretic or a forger of papal bulls. As a general principle of law, Becket’s theory about double punishment was condemned by Innocent III.; the decree which condemns it is to this day part of the statute law of the catholic church.189

Curiously enough that point in Henry’s scheme which in the eyes of the canonist must have seemed the least defensible, was successfully defended. As we have seen, his successors maintained the rule that clerks can be haled before the king’s justices and accused of capital crimes. On the other hand, the not uncanonical principle which would have brought back the degraded clerk to hear a sentence in the royal court was abandoned. The result was lamentable.

The murderers of clerks.One small matter remains to be noticed. It has sometimes been assumed by English writers that the clergy were willing to admit a certain measure of reciprocity, that they were willing that their own lives should be protected only by ecclesiastical law and ecclesiastical tribunals and that this is proved by the fate of the archbishop’s murderers. Now it is true that a clerk was forbidden by the law of the church to go before a lay court and seek a judgment of blood; but to say this is one thing, to say that the lay murderer of a clerk is not to be punished by the lay prince is quite another thing, and we are not persuaded that any one ever said it except when he was in a logical strait. As we read the chronicles, Henry was blamed by his contemporaries for not having brought the murderers to justice and put them to death, though it was admitted by some that he was in a very awkward position:—he would be blamed if he let them escape, he would be blamed if he punished them, for this would be casting upon them the burden of a crime of which in common opinion he himself was not guiltless. He thought it best that they should go to the pope.190 Afterwards he declared that he had been unable to arrest them.191 It would seem indeed that for a very few years some English ecclesiastics were driven by the stress of Becket’s logic to say that they would be content if the murderers of clerks were handed over to the mild judgments of the church; or perhaps the true story is that this assertion was put into their mouths as a reductio ad absurdum of their demands by those who, though clerks and bishops, were the king’s clerks. At any rate very soon after the martyrdom Archbishop Richard, the martyr’s successor, wrote to three of the martyr’s most deadly foes, who were by this time three prelates of the English church and the three principal justices of King Henry’s court, he wrote to Richard of Ilchester, John of Oxford and Geoffrey Ridel, and told them that the doctrine which would deal thus tenderly with lay offenders was a damnable opinion and utterly at variance with canon law.192 Repudiating the line of argument favoured by his sainted predecessor, he assured his three suffragans that a layman might be first excommunicated by the church and then hanged by the state without being punished twice for one offence.193 Henry could now make terms; he had something to sell. In 1176 a papal legate conceded that he might punish clerks for breaches of the forest law, and in return the king granted that the lives of clerks should be protected as well as, or even better than, the lives of laymen.194

§ 6.

Aliens

The classical common law.When our common law issues from the middle ages both its tests of nationality and its treatment of aliens are hardly such as we might have expected them to be.

Who are aliens?1. As regards the definition of the two great classes of men which have to be distinguished from each other, the main rule is very simple. The place of birth is all-important. A child born within any territory that is subject to the king of England is a natural-born subject of the king of England, and is no alien in England. On the other hand, with some exceptions, every child born elsewhere is an alien, no matter the nationality of its parents.

The full extent of the first half of this rule was settled in 1608 by the famous decision in Calvin’s case:—a child born in Scotland after the moment when King James the Sixth became King James the First is no alien in England.195 The decision was one which pleased the king and displeased many of his subjects; but no other judgment could have been given, unless many precedents derived from times when our kings had large territories on the continent of Europe had been disregarded.

The other half of the rule takes us back to the middle of the fourteenth century. In 1343 a great debate has sprung up among men of the law and others as to the national character of the children born to English parents in foreign parts. The king seems to fear that this may touch even the succession to the throne; the prelates and barons reassure him; there never has been any doubt that the king’s children wherever born are capable of inheriting from their ancestors. But as regards other children they hesitate. It is agreed in parliament that children “born in the king’s service,” no matter the place of their birth, can inherit; but time is short, this difficult matter requires further discussion, and so it is also agreed that no statute shall be made upon the present occasion.196 Then in 1350 the debate is resumed. Once more there is a solemn protest that as to the king’s children there is not and has never been any doubt at all. For the rest, it is ordained by statute that “children born without the ligeance of the king, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the king of England, shall have and enjoy the same benefits and advantages to have and bear inheritance within the same ligeance as [certain children in whose favour this rule was being retrospectively applied], so always that the mothers of such children do pass the sea by the licence and wills of their husbands.”197 Certain children already born, were then declared capable of inheriting. The inference which we should draw from the proceedings of 1343 and 1350 is that the parliament thought that it was defining a somewhat debatable point in the common law, not that it was introducing a new rule. There is very little in the earlier Year Books that bears on this point: just enough, it may be, to suggest that the usual forms of pleading threw difficulties in the way of any one born “out of the king’s ligeance,” and that “the king’s ligeance” was regarded as a geographical tract.198

Disabilities of the alien.2. An alien cannot hold land in England. If the person to whom land would descend according to the common rules of inheritance is an alien, it misses him and passes to some remoter kinsman of the dead man. If, on the other hand, an alien obtains land by gift, sale, lease or the like, the transaction is not a nullity, but the king can seize the land and keep it for himself. Late in the middle ages we hear of a narrow exception:—an alien merchant may hire a house for the purposes of his trade.199 Also it is said that an alien may have goods and chattels; he may make a will of them, and, should he die intestate, they will be administered for the benefit of his kinsfolk. But it is very noticeable that according to Littleton an alien can bring no action whether real or personal, and when his great commentator explains this to mean that no alien can bring a real action, that no alien enemy can bring a personal action, but that an alien whose sovereign is in league with our own may bring personal actions, we cannot but feel that this is a bold treatment of a carefully worded text.200

Naturalization.3. Nothing short of a statute can give to an alien all the rights of a natural born subject; but some of these can be conferred by the king’s letters patent making the alien a “denizen.” A denizen thus made can hold land, and he can acquire land by gift, sale or the like, but he cannot inherit, and a child of his born before the act of denization cannot inherit from him.201

Law of earlier times.Now there is room for serious doubt whether these rules can be traced far beyond the end of the thirteenth century. Very ancient law may regard every stranger as an enemy; but it will lay far more stress upon purity of blood than on place of birth; it will be tribal rather than territorial law. At a later time the friendly stranger will have no strict legal rights, no rights given him by the folk-law, but will live under the protection, the mund, of the ruler or some other great man. There is much in the treatment received by Jews and foreign merchants in the thirteenth century which suggests this doctrine. But feudalism is opposed to tribalism and even to nationalism: we become a lord’s subjects by doing homage to him, and this done, the nationality of our ancestors and the place of our birth are insignificant. The law of feudal contract attempts for a while to swallow up all other law. In England, however, a yet mightier force than feudalism came into play. A foreigner at the head of an army recruited from many lands conquered England, became king of the English, endowed his followers with English lands. For a long time after this there could be little law against aliens, there could hardly be such a thing as English nationality. Even had the king claimed a right to seize the lands of aliens, he would not have exercised it. Again, the territory within which, according to later law, subjects would be born to the king of England, was large; under Henry II. it became vast. It comprehended Ireland; at times (to say the least) it comprehended Scotland; it stretched to the Pyrenees. Then again, the law even of Bracton’s day acknowledged that a man might be a subject of the French king and hold land in France and yet be a subject of the English king and hold land in England. It was prepared to meet the case of a war between the two kings: the amphibious baron must fight in person for his liege lord, but he must also send his due contingent of knights to the opposite army.202 In generation after generation a Robert Bruce holds land on both sides of the Scottish border; no one cares to remember on which side of it he was born.203 Simon de Montfort obtained the Leicester inheritance; where he was born historians cannot tell us; it matters not. He obtained the Leicester inheritance though his elder brother Almaric was living. Almaric was adhering to the French king, the enemy of our king, and that might be a good reason for passing him by; but Almaric must solemnly resign his claim before Simon’s can be entertained.204

Growth of the law disabling aliens.It is, we believe, in the loss of Normandy that our law of aliens finds its starting point. In the first place, John seized the lands of those of his nobles who adhered to Philip, and preferred to be French rather than English. This was a forfeiture for treason. At the same time we see traces of that curious dislike of perpetual disherison which meets us in other quarters. Some of these lands, the terraeNormannorum, are given to new tenants in fee simple, but subject to a proviso that they may be taken away again if ever the Normans come back to their allegiance.205 In the second place, a permanent relation of warfare is established between England and France. It endures from the beginning of John’s reign until 1259 when Henry resigned his claim to Normandy. True that during this long half-century there was very little fighting and there were many truces; but all along the English theory was that Henry was by right Duke of Normandy and Count of Anjou, that the king of France was deforcing him of his inheritance, and that the day would come when the rebellious, or the invaded, provinces would obey their lawful lord. Thus a man who is living in obedience to the king of France is an enemy. If, says Bracton, such an one claims land against you, you may except against him; your exception however is not “peremptory,” it is “dilatory”; it may lose its force when our king enjoys his own again.206 What he says is fully borne out by recorded cases from the early years of Henry III. A claimant of land is met, not by the simple “You are an alien,” but by the far more elaborate “You are within the power of the king of France and resident in France, and it has been provided by the council of our lord the king that no subject of the king of France is to be answered in England until Englishmen are answered in France.”207 Then Matthew Paris tells us how in 1244 Saint Louis, urging that “no man may serve two masters,” insisted that all persons living in France must make choice between him and Henry, how Henry retorted by seizing the English lands of the Frenchmen, especially of the Normans, without giving them any chance of choosing an English nationality, and how Louis treated this retort as a breach of truce.208

The king and the alien.Blackstone is at no loss for reasons why an alien should not hold land in England, but when he has to explain why the king should seize the land which aliens acquire, we feel that he is in difficulties. He suggests that this forfeiture “is intended by way of punishment for the alien’s presumption in attempting to acquire any landed property.”209 The truth seems to be that in the course of the thirteenth century our kings acquired a habit of seizing the lands of Normans and other Frenchmen. The Normans are traitors; the Frenchmen are enemies. All this will be otherwise if a permanent peace is ever established. But that permanent peace never comes, and it is always difficult to obtain a restoration of lands which the king has seized. France is the one foreign country that has to be considered in this context; Germans and Italians come here as merchants, but they have no ancestral claims to urge and do not want English lands, while as to Scotland, owing to the English king’s claim to an overlordship or to some other reason, Balliols and Bruces hold land on both sides of the border until a long war breaks out between the two countries. To us it seems that the king’s claim to seize the lands of aliens is an exaggerated generalization of his claim to seize the lands of his French enemies. Such an exaggerated generalization of a royal right will not seem strange to those who have studied the growth of the king’s prerogatives.210

Growth of the king’s claim to the alien’s land.And so too Bracton’s “dilatory exception” becomes peremptory: “You are an alien and your king is at war with our king” becomes “You are an alien.” An English nation is gradually forming itself. Already there is a cry of “England for the English.” The king’s foreign favourites are detested; glad enough would Englishmen be if he would but seize their lands impartially and indiscriminately, and never endow another alien, be he Norman or Poitevin or Savoyard, with another inch of land. A trace of this feeling we may see when Bracton says that while the state of war endures the king cannot enable the alien to bring an action.211 Probably in Edward I.’s day the law is, not merely that an alien enemy cannot sue, but that an alien cannot acquire land. A curious story comes to us which is worthy of repetition. A tenant in chief of the crown died leaving two co-heiresses; King Henry granted the wardship and marriage of these two young ladies to Elyas de Rabayn; Elyas took one of them to wife and sent the other to be married beyond the seas so that he might obtain the whole inheritance. In 1290 her son, though born abroad, claimed his mother’s share; and claimed it successfully. The court defeated the scheme of the fraudulent guardian, but declared that its judgment was to form no precedent in favour of other aliens.212 From Edward’s day also we have letters of denization or of naturalization: the two would hardly as yet be distinguished. Though Elyas Daubeny was born beyond the seas, the king holds him for a pure Englishman and wills that he shall be held as such by all men and that he may sue in all courts notwithstanding any “exception” of alienage.213

The kinds of aliens.The law of Henry III.’s reign has to deal as a matter of fact with two and only two great classes of aliens. The first consists of Frenchmen who have claims to English lands. Such claims are in some cases ancestral, and these, as we have seen, cannot be heard while there is war or an abiding cause for war between France and England. In other cases the claimants are recipients of royal favours; they are the king’s half-brothers, the queen’s uncles or the attendants of these exalted persons; the king gives them lands and, except at a revolutionary moment, they hold their lands safely; some of them were born in provinces which de iure (so Englishmen think) belong to the king; all of them by doing homage to the king become his men, and this must be naturalization enough. The other great class consists of alien merchants; they do not come here to settle; they do not want land; they would be well content were they permitted to lodge where they pleased.

The alien merchant.Mere common law has little to do with these foreign merchants. Their business takes them into the chartered towns. The law under which they live is a mesh of privileges and of privileges that are hardly consistent. They themselves will have charters derived from the king; but they will be living in boroughs which have charters derived from the king, and first and foremost among the rights for which the burghers long is the right of confining the activity of foreign merchants within narrow bounds. The conflict goes on with varying fortunes from century to century. On the whole the king, the prelates and barons support the merchants; they are useful, they lend money, they lower prices, they will pay for favours; but often a weak king must give way and yield to the complaints of the burghers. Already the Great Charter provides that merchants may freely enter and dwell in and leave the realm; but the same Great Charter confirms all the ancient liberties and customs of London and the other boroughs, and thus takes away with one hand what it gives with the other.214 The burghers have a very strong opinion that their liberties and customs are infringed if a foreign merchant dwells within their walls for more than forty days, if he hires a house, if he fails to take up his abode with some reponsible burgher, if he sells in secret, if he sells to foreigners, if he sells in detail. In Henry III.’s day the struggle is but beginning. It reaches the first of its many climaxes in 1303 when Edward I. grants the great Carta Mercatoria.215 It will interest rather the economist than the lawyer, and rather the student of the fourteenth and fifteenth centuries than the student of earlier times.216

The alien and common law.We may perhaps regard Coke’s doctrine that the alien friend is protected by “personal actions” as ancient common law. In Edward I.’s day we even find that an Italian merchant resident in England, who as a Ghibelline had been ejected from his house in Florence by victorious Guelfs, hoped to recover damages for this wrong in the courts of the king of England; he failed, because “it is not the custom of England that any one should answer in England for a trespass committed in a foreign country in time of war or in any other manner.”217 The Carta Mercatoria of Edward I., the validity of which did not pass unquestioned, and statutes of Edward III. secured to aliens the benefit of a jury composed wholly or in part of aliens.218 In 1454 it is said that a foreign merchant may hire a house and defend his possession of it by an action of trespass.219 If we suppose this to have been ancient common law, still it must have been law which had but little chance of asserting itself; the burghers have steadily fought against it and very commonly have been successful.220 Littleton’s bold assertion that an alien can bring no action real or personal may be less open to exception than his commentator supposed,221 for in Littleton’s day we hear that the proper court for aliens who have come here under the king’s safe conduct is the Court of Chancery; “they are not bound to sue according to the law of the land, nor to abide the trial by twelve men and other solemnities of the law of the land, but shall sue in the Chancery and the matter shall be determined by the law of nature.”222 This is a doctrine characteristic of the fifteenth century. But all along it is as men privileged by the king rather than as men subject to ordinary law, that the foreign merchants get a hearing. They can seldom make their way to the king’s justices because the courts of the towns in which they live claim an exclusive cognizance of actions brought against the burgesses, and when the foreigners do get to the royal courts there is a contest between privilege and privilege. Probably the king can banish them at any time; his loyal subjects in the boroughs would not be sorry if he did, for these aliens are always taking the bread out of the mouths of honest folk. Then, at least in the thirteenth century, the common belief is that they are all usurers and therefore living in mortal sin. We are told that in 1240 Henry III. banished the so-called Caursini; but that they only lay hid for a time, the king conniving at their presence. A little while afterwards they are acquiring splendid palaces in London; no one dares attack them, for they call themselves the pope’s merchants; now and again the king will imprison a few, to the delight of their Jewish rivals; but he is half-hearted. And so there is little common law for these people.223

Has the merchant a peculiar status?Ought we to reckon merchants of all kinds, English and foreign, as forming one of the sorts or conditions of men known to the law? Hardly, though as the historian of our constitution has shown, they nearly become for political purposes one of the estates of the realm.224 Still they do not become this. Then in private law “merchantship,” if we may make that word, seems too indefinite and also seems to have too few legal consequences to permit of our calling it a status. We might illustrate this from modern law. Until lately no one but “a trader” could be made bankrupt; still we should hardly say that in 1860 “tradership” was a status. There was, so far as we are aware, but this one rule which marked off the “trader” from the “non-trader,” and a man became and ceased to be a trader without any solemnity by a process that we may call indefinite, though a court of law might have had to decide whether at a given moment that process had been accomplished.

The law merchantBefore the end of the thirteenth century “the law merchant” was already conceived as a body of rules which stood apart from the common law.225 But it seems to have been rather a special law for mercantile transactions than a special law for merchants. It would we think have been found chiefly to consist of what would now be called rules of evidence, rules about the proof to be given of sales and other contracts, rules as to the legal value of the tally and the God’s penny; for example, the law merchant took one view of the effect of an “earnest,” the common law another. These special mercantile rules were conceived as being specially known to merchants; in the courts of fairs and markets the assembled merchants declare the law; in Edward II.’s day twelve merchants are summoned from each of four cities to testify before the king’s bench about a doubtful point in the “lex mercatoria.” Also these rules are not conceived to be purely English law; they are, we may say, a ius gentium known to merchants throughout Christendom, and could we now recover them we might find some which had their origin on the coasts of the Mediterranean. But this is not the place for their discussion, for we take the law merchant to be not so much the law for a class of men as the law for a class of transactions.

§ 7.

The Jews226

General idea of the Jew’s position.The Jew came to England in the wake of the Norman Conqueror. That no Israelites had ever dwelt in this country before the year 1066 we dare not say; but if so, they have left no traces of their presence that are of any importance to us.227 They were brought hither from Normandy, brought hither as the king’s dependants and (the word will hardly be too strong) the king’s serfs. In the first half of the twelfth century their condition was thus described by the author of the Leges Edwardi in a passage which suggests that among the regalia to which the Norman barons aspired was the privilege of keeping Jews of their own:—“It is to be known that all the Jews wheresoever they be in the realm are under the liege wardship and protection of the king; nor may any of them without the king’s licence subject himself to any rich man, for the Jews and all that they have are the king’s, and should any one detain them or their chattels, the king may demand them as his own.”228 This gives us one of the two main ideas that our law in later times has about the Jew:—he with all that he has belongs to the king. Bracton puts the same thought in these words:—“The Jew can have nothing that is his own, for whatever he acquires, he acquires, not for himself, but for the king; for the Jews live not for themselves but for others, and so they acquire not for themselves but for others.”229 The other main idea is one which will not seem strange to us after what we have said of villeinage. This servility is a relative servility; in relation to all men, save the king, the Jew is free. He will require some special treatment, for if he is to be here at all and do any good, he must be allowed to do things that are forbidden to Christians, notably to take interest on money lent. And courts of justice must pay some regard to his religion; for example, they must suffer him to swear upon the roll of the law instead of the gospels; but in general, if his royal master’s interests are not concerned, he is to be dealt with as though he were a Gentile. A third principle is accepted—the Jews themselves would desire its acceptance—namely, that when the interests of neither the king nor any other Christian are concerned, the Jews may arrange their own affairs and settle their own disputes in their own way and by their own Hebrew law.230

The exchequer of the Jews.For about a century and a half they were an important element in English history. In spite of the king’s exactions and of occasional outbursts of popular fury, they throve. They were wealthy; they bore an enormous weight of taxation.231 We may say that at times they “financed” the kingdom; there were few great nobles who had not at one time or another borrowed money from the Israelite, and paid the two pence per pound per week that was charged by way of usury. What the great folk did, the smaller folk did also. This money-lending business required some governmental regulation. In the first place, the king had a deep interest in it, for whatever was owed to a Jew was potentially owed to the king, and he would naturally desire to have ready at hand written evidence that he could use against his debtors. In the second place, this matter could hardly be left to the ordinary English tribunals. For one thing, they would do but scant justice to the Jew, and therefore but scant justice to the king, who stood behind the Jew. For another thing, it is highly probable that the Jewish “gage” was among Englishmen a novel and an alien institution, since it broke through the old law by giving rights in land to a creditor who did not take possession. In 1194 therefore an edict was issued about these Jewish loans.232 In every town in which the Jews lived, an office, as we should say, was established for the registration of their deeds. All loans and payments of loans were to be made under the eye of certain officers, some of them Christians, some of them Jews, and a copy or “part” of every deed was to be deposited in an “ark” or chest under official custody. A few years later a department of the royal exchequer— the exchequer of the Jews—was organized for the supervision of this business.233 At its head were a few “Justices of the Jews.” We hear for a while that some of these justices are themselves Jews, and all along Jews filled subordinate offices in the court; and this was necessary, for many of the documents that came before it were written in the Hebrew language. This exchequer of the Jews was, like the great exchequer, both a financial bureau and a judicial tribunal. It managed all the king’s transactions—and they were many—with the Jews, saw to the exaction of tallages, reliefs, escheats and forfeitures, and also acted judicially, not merely as between king and Jew, but also as between king and Gentile when, as often happened, the king had for some cause or another “seized into his hand” the debts due to one of his Jews by Christian debtors. Also it heard and determined all manner of disputes between Jew and Christian. Such disputes, it is true, generally related to loans of money, but the court seems to have aimed at and acquired a competence, and an exclusive competence, in all causes whether civil or criminal in which a Jew was implicated, unless it was some merely civil cause between two Hebrews which could be left to a purely Jewish tribunal. For this reason we can read very little of the Jews in the records of any other court, and until such rolls of the Jewish exchequer as exist have been published, we shall be more ignorant than we ought to be.234

Vice of the law applied to Jews.The system could not work well; it oppressed both Jew and Englishmen. Despised and disliked the once chosen people would always have been in a society of medieval Christians; perhaps they would have been accused of crucifying children and occasionally massacred; but they would not have been so persistently hated as they were, had they not been made the engines of royal indigence. From the middle of the thirteenth century onwards the king was compelled to rob them of their privileges, to forbid them to hold land, to forbid them even to take interest.235 This last prohibition could not be carried into effect; there was little or nothing that the Jews could profitably do if they were cut off from lending money. Their expulsion in 1290 looks like the only possible solution of a difficult problem.

A few more words may be said about their legal condition for it was curious and may serve to illustrate some general principles of our medieval law.

Relation of the Jew to the king.The Jew’s relation to the king is very much like the villein’s relation to his lord. In strictness of law whatever the Jew has belongs to the king; he “acquires for the king” as the villein “acquires for his lord.” But, just as the lord rarely seizes his villein’s chattels save for certain reasons, so the king rarely seizes the Jew’s chattels save for certain reasons; until the seizure has been made, the villein or the Jew is treated as an owner and can behave as such. Again, as the lord is wont to be content with the customary services, heriots, merchets and so forth of his villeins and to tallage them only at regular intervals, so the king, unless he is in some unusual strait, will treat his Jews by customary rules; for example he will not exact from the heir by way of relief more than one-third of the inheritance.236 The king respects the course and practice of his Scaccarium Iudaeorum, the custom of his Jewry, much as the lord respects the custom of the manor. Again, the king does justice upon and between his Jews, as the lord does justice upon and between his villeins. The maxim that what is the Jew’s is the king’s is not infringed when the king after a judicial hearing decides that for a certain offence a certain Jew must pay a certain sum, and just so the lord keeps in the background his right to seize all the goods of every villein while his court is condemning this or that villein to a fine, a forfeiture or an amercement. Again, the king can grant privileges to his Jews— Henry II. gave them a charter and John a magnificent charter—without emancipating them or fundamentally changing their legal condition.237 Lastly the lord when his own interests are not at stake is content that his villeins should settle their own disputes in their own way under the supervision of his steward, and so the king is content that, as between Jews, Jewish law shall be administered by Jewish judges.

The Jew’s servility.The analogy may not be perfect. It is but too possible that in his dealings with his Jews the king’s rapacity was checked by few considerations that were not prudential, and that the course and practice of his Jewry extracted from them the utmost that a farsighted selfishness could allow itself to demand. The villein was a Christian; the custom of the manor had ancient roots and was closely akin to the common law. The relation between king and Jew was new, at least in England, and it was in many respects unique; the Jew belonged to a despicable race and professed a detestable creed. For all this, the analogy holds good at the most important point: the Jew, though he is the king’s serf, is a freeman in relation to all other persons. We call him a serf. We have no direct authority for so doing, for we have seen no text in which he is called servus; but Bracton has gone very near this word when he said that what the Jew acquires he acquires for the king. Not only can the king mortgage or lease his Jewry, his Iudaismum, as a whole,238 but there is one known case in which an individual Jew was first given by the king to his son and afterwards enfranchised; donavimus libertati was the phrase used; hereafter in consideration of an honorary rent of a pair of gilt spurs he is to be free from all tallages, aids, loans and demands.239

The Jew in relation to the world at large.The Jew’s freedom in relation to all others than his master seems to have been amply protected by the exchequer. So far as we can see he found there a favourable audience. He could sue and be sued, accuse and be accused, and the rules of procedure, which in the main were the ordinary, English rules, were not unduly favourable to his Christian adversary. He “made his law” upon the books of Moses; he was not required to do battle; he might put himself upon a jury one half of which would consist of men of his own race and creed. He enjoyed a splendid monopoly; he might frankly bargain for interest on his loans and charge about forty-three per cent per annum.240 Unless we are mistaken, no law prevented him from holding lands,241 though it is not until late in the day that he appears as a landholder on a large scale, and when this happens it is a scandal that cries aloud for removal. He had a house, sometimes a fine house, in the town. His choice of a dwelling place seems to have been confined to those towns which had “arks,” or as we might say “loan registries”; he would hardly have wished to live elsewhere; but there were boroughs which had obtained royal charters enabling them to exclude him.242 Many lands were gaged to him, but, though we do not fully understand the nature of these gages, it seems to us that the Hebrew creditor seldom took, or at all events kept, possession of the land, and that his gage was not conceived as giving him any place in the scale of lords and tenants. However, late in Henry III.’s reign it became apparent that the Jews were holding lands in fee and that they had military tenants below them; they were claiming the wardships and marriages of infant heirs, and were even daring to present Christian clerks to Christian bishops for induction into Christian churches.243 This was not to be borne. In 1271 the edict went forth that they were no longer to hold free tenement, though they might keep their own houses.244 Some galling restrictions had already been laid upon them at the instance of the church; they were to fast in Lent; they were to wear distinctive badges upon their garments; they were not to keep Christian servants or have intercourse with Christian women; they were not to enter the churches; they were to acquire no more schools or synagogues than they already possessed.

Law between Jew and Jew.As between Jew and Jew, if the king’s interests were in no wise concerned, Jewish tribunals administered the Jewish law (lex Iudaica). Questions of inheritance, for example, do not come before the ordinary English tribunals, and come but rarely and incidentally before the exchequer of the Jews. When Hebrew dealt with Hebrew the document, the shetar (Lat. starrum, Fr. estarre) which recorded the transaction was written in the Hebrew language and the parties to it, instead of affixing their seals (some Jews had seals), signed their names.245 Often such a document was executed in the presence of official witnesses and was sanctioned by an oath upon the law. The precise nature of the tribunals which did justice between Jews we cannot here discuss; it is a matter for those who are learned in Hebrew antiquities; but to all appearance they were not mere boards of arbitrators but courts with coercive power.246 Whether they aspired to execute their decrees by physical force we do not know; but apparently, like our own ecclesiastical courts, they could wield the weapon of excommunication, and this spiritual sword may have been sufficient for the accomplishment of all their purposes.247 To Gentiles at all events it seemed that the Jews had “priests” and “bishops” (presbyteri, sacerdotes, episcopi) who did justice among them. Over the appointment of these officers the king exercised a control, not very unlike that which he exercised over the appointment of English bishops.248 The Jews of each town, or of each synagogue, and again all the Jews of England, constituted a communa with which he could deal as a single whole. He could impose a tax or a penalty upon it, and leave it to settle as between its various members the final incidence of the impost.

Influence of the Jew on English law.Whether the sojourn of the Jews in England left any permanent marks upon the body of our law is a question that we dare not debate, though we may raise it. We can hardly suppose that from the Lex Iudaica, the Hebrew law which the Jews administered among themselves, anything passed into the code of the contemptuous Christian. But that the international Lex Iudaismi249 perished in 1290 without leaving any memorial of itself is by no means so certain. We should not be surprised to learn that the practice of preserving in the treasury one “part” (the pes or “foot”) of every indenture which recorded a fine levied in the royal court, was suggested by the practice of depositing in an official ark one copy of every bond given to a Jew. Both practices can be traced to the same year, the year 1194.250 Again, very early in Edward I.’s day we hear that “according to the assize and statutes of the king’s Jewry, his Jews ought to have one moiety of the lands, rents and chattels of their Christian debtors until they shall have received their debts.”251 A few years afterwards, and just before the banishment of the Jews, a famous statute gave a Christian creditor a very similar remedy, the well-known writ of elegit, which therefore may be a lasting monument of the Hebrew money-lender.252 But at any rate we ought to remember the Jew when we make our estimate of the thirteenth century. Landowners are borrowing large sums, and the enormous rate of interest that they contract to pay, if it shows the badness of the security that is offered for the loan—the Jew holds his all at the king’s will and usury does not run against infants; the security therefore is very bad—shows also the intensity of the demand for money. Many an ancient tie between men,—the tie of kinship, the tie of homage—is being dissolved or transmuted by the touch of Jewish gold; land is being brought to market and feudal rights are being capitalized.

§ 8.

Outlaws and Convicted Felons

Outlawry.We must now glance briefly at certain classes of men who for their offences or their contumacy are deprived of some of those rights which their “lawful” neighbours enjoy. Among them we reckon outlaws, convicted felons and excommunicates.

The history of outlawry can be better told in connexion with the criminal law than in the present context. Outlawry is the last weapon of ancient law, but one that it must often use. As has been well said, it is the sentence of death pronounced by a community which has no police constables or professional hangmen.253 To pursue the outlaw and knock him on the head as though he were a wild beast is the right and duty of every law-abiding man. “Let him bear the wolf’s head”:254 this phrase is in use even in the thirteenth century. But as the power of the state and the number of its weapons increase, outlawry loses some of its gravity; instead of being a substantive punishment, it becomes mere “criminal process,” a means of compelling accused persons to stand their trial. Just in Bracton’s day it is undergoing a further degradation. In one place he says that recourse can be had to outlawry only when there is an accusation of one of those crimes which are punished by loss of life or member. This, no doubt, is the old doctrine, and his whole exposition of the effects of outlawry is in harmony with it. At a later time he has glossed his text:—there may, he says, be outlawry even when the offence is no felony but a mere transgressio, provided that it be a breach of the king’s peace.255 This is important. In course of time our law is going to know two kinds of outlawry; with allusion to the analogous process of excommunication we might call them the greater and the less. A man outlawed on a charge of felony is as one attainted of that felony; while if outlawed for a misdemeanour or in a civil action (for in the course of the fourteenth century the process of outlawry spreads rapidly through many of the personal actions) he is in no such evil plight. But this distinction belongs to the future. The learning of outlawry as it is in Bracton is still the learning of outlawry for felony.

Condition of the outlaw.The outlaw’s life is insecure. In Bracton’s day he ought not to be slain unless he is resisting capture or fleeing from it; but it is every one’s duty to capture him. And out in Gloucestershire and Here-fordshire on the Welsh march custom allows that he may be killed at any time.256 If knowing his condition we harbour him, this is a capital crime.257 He is a “lawless man” and a “friendless man.”258 Of every proprietary, possessory, contractual right he is deprived; the king is entitled to lay waste his land and it then escheats to his lord; he forfeits his chattels to the king; every contract, every bond of homage or fealty in which he is engaged is dissolved. If the king in-laws him, he comes back into the world like a new-born babe, quasi modo genitus, capable indeed of acquiring new rights, but unable to assert any of those that he had before his outlawry. An annihilation of the outlawry would have a different operation, but the inlawed outlaw is not the old person restored to legal life; he is a new person.259 The law of forfeiture and escheat for felony is taking an extremely severe form. It is held that the conviction or the outlawry “relates back” to the moment at which the crime was perpetrated, so that acts done by the felon in the interim are avoided.260 It is held that the felon’s blood is corrupt and that a child born to him after the felony is incapable of inheriting, not merely from him, but from any one else.261 Though we speak but briefly of outlawry, we are speaking of no rarity; the number of men outlawed at every eyre is very large; ten men are outlawed for one who is hanged.

§ 9.

Excommunicates

Excommunication.Closely allied to outlawry is excommunication; it is in fact an ecclesiastical outlawry,262 and, like temporal outlawry, though once it was the law’s last and most terrible weapon against the obstinate offender, it is now regarded as a normal process for compelling the appearance in court of those who are accused. Indeed as regards the laity, since the spiritual courts cannot direct a seizure of body, lands or goods, those courts must, if mere citations fail to produce an appearance, at once have recourse to their last weapon. Then, as ordained by William the Conqueror, the lay power comes to their aid.263 If the excommunicate does not seek absolution within forty days (this period seems to be fixed already in the twelfth century264 ), the ordinary will signify this to the king; a writ for the arrest of the offender will be issued, and he will be kept in prison until he makes his submission.265

Spiritual leprosy.The excommunicate is, says Bracton, a spiritual leper; he can do no valid act in the law; he cannot sue; but he can be sued, for he must not take advantage by his own wrong-doing; one may not pray with him, talk with him, eat with him.266 The clergy from time to time complain that this precept is not well observed and that the king is backward in the arrest of excommunicates.267 In spite of the condemnation which had fallen on the Constitutions of Clarendon, our kings seem to have stedfastly asserted the Conqueror’s principle that their tenants in chief, at all events their ministers, sheriffs and bailiffs, were not to be excommunicated without royal licence. Edward I. compelled Archbishop Peckham to withdraw a general sentence pronounced against those ministers who were remiss in their duty of capturing excommunicates268 and in 1293 the Archbishop of York made fine with four thousand marks for having excommunicated the Bishop of Durham; he had failed to take the distinction between what was done by his suffragan bishop and what was done by a palatine earl.269 A practice of the lay courts yet more objectionable to the clergy was that of directing a bishop to absolve an excommunicate. They did not treat the spiritual courts as inferior courts, they did not entertain appeals or evoke causes; but still they had to protect their own jurisdiction. A suit would be instituted in the bishop’s court about some matter, which, according to the thinking of the king’s justices, did not lie within its sphere; to those justices the defendant would come for a writ of prohibition; meanwhile he would be excommunicated, and then the plaintiff and the ecclesiastical judges, when called before the royal court, would refuse to answer one who was outside the pale of the church. In such a case it is not an unheard of thing that the lay court should command the bishop to pronounce an absolution;270 but much the same end may be attained if the lay court simply ignores a sentence which in its opinion has been obtained in fraud of its rights.271 On the whole, however, before the end of Henry III.’s reign the two sets of courts are working together harmoniously. There is always a brisk border warfare simmering between them, in which, as is natural, the tribunal which has the direct command of physical force is apt to gain the victory; but this is no longer a world-shaking conflict between church and state, it is rather a struggle between two professional classes, each of which likes power and business and has no dislike for fees and perquisites. In the eyes of the secular lawyers the baronies of the bishops are a pledge that the censures of the church will not be used so as to deprive the king of his rights.272 Even an appeal to Rome is duly respected by the lay power—more than duly respected, some English churchmen may have thought, for thereby the wealthy excommunicate is often enabled to postpone to an indefinite date the evil day when he must go to prison or submit himself.273

Excommunication and civil rights.We have compared excommunication to outlawry; but, at least in this world, the consequences of the temporal were far more severe than those of the spiritual ban. The excommunicate forfeited none of those rights which were sanctioned by lay tribunals. He became incapable of asserting them by action; but the “exception of excommunication” was only a dilatory, not a peremptory, plea, and the plaintiff might go on with his action so soon as he had made his peace with the church.274 Despite their adoption of the bold phrase “The excommunicate can do no act in law,” our secular judges seem to have thought that they had given sufficient aid to the spiritual power when they had shut their ears to the funesta vox of the church’s outlaw.275 They stopped short of declaring that he could not acquire rights or dispose of his property, but those, who knowing of his condition had dealings with him, were guilty of an offence which the ecclesiastical courts might punish if they pleased.

§ 10.

Lepers, Lunatics and Idiots

The leper.This would not be the place in which to speak at any length of the legal disability of those who are suffering from mental or bodily disease; but a few words should be said of lepers and of idiots. Bracton compares the excommunicate to the leper, and the leper is excommunicate in a very real sense. He is put outside the community of mankind; the place for him is the lazar house.276 Not only is he incapable of suing and of making gifts or contracts, but he is even incapable of inheriting. He still remains the owner of what was his before his “segregation,” but he cannot inherit.277

The idiot.Among the insane our law draws a marked distinction; it separates the lunatic from the idiot or born fool.278 About the latter there is a curious story to be told. In Edward I.’s day the king claims a wardship of the lands of all natural fools, no matter of whom such lands may be holden. He is morally bound to maintain the idiots out of the income of their estates, but still the right is a profitable right analogous to the lord’s wardship of an infant tenant. But there is reason to believe that this is a new right, or that at any rate there has been a struggle for it between the lords and the king. If idiocy be treated as similar to infancy, this analogy is in favour of the lords; at all events if the idiot be a military tenant, feudal principles would give the custody of his land not to the king, but to the lord, while of socage land some kinsman of the fool might naturally claim a wardship. Edward I. was told that by the law of Scotland the lord had the wardship of an idiot’s land.279 But in England a different rule had been established, and this, as we think, by some statute or ordinance made in the last days of Henry III. If we have rightly read an obscure tale, Robert Walerand, a minister, justice and favourite of the king, procured this ordinance foreseeing that he must leave an idiot as his heir and desirous that his land should fall rather into the king’s hand than into the hands of his lords.280 The king’s right is distinctly stated in the document known as Praerogativa Regis, which we believe to come from the early years of Edward I. The same document seems to be the oldest that gives us any clear information about a wardship of lunatics.The lunatic. The king is to provide that the lunatic and his family are properly maintained out of the income of his estate, and the residue is to be handed over to him upon his restoration to sanity, or, should he die without having recovered his wits, is to be administered by the ordinary for the good of his soul; but the king is to take nothing to his own use.281 Once more we see prerogatival rights growing, while feudal claims fall into the background; and in the case of lunacy we see a guardianship, a mund, which is not profitable to the guardian, and this at present is a novel and a noteworthy thing.282

§ 11.

Women

Legal position of women.We have been rapidly diminishing the number of “normal persons,” of free and lawful men. We have yet to speak of half the inhabitants of England. No text-writer, no statute, ever makes any general statement as to the position of women.283 This is treated as obvious, and we believe that it can be defined with some accuracy by one brief phrase:—private law with few exceptions puts women on a par with men; public law gives a woman no rights and exacts from her no duties, save that of paying taxes and performing such services as can be performed by deputy.

Women in private law.A very different doctrine is suggested by one ancient rule. A woman can never be outlawed, for a woman is never in law. We may well suppose this to come from a very remote time. But in Bracton’s day it means nothing, for a woman, though she cannot be outlawed, can be “waived,” declared a “waif,” and “waiver” seems to have all the effects of outlawry.284 Women are now “in” all private law, and are the equals of men. The law of inheritance, it is true, shows a preference for males over females; but not a very strong preference, for a daughter will exclude a brother of the dead man, and the law of wardship and marriage, though it makes some difference between the male and the female ward, is almost equally severe for both. But the woman can hold land, even by military tenure, can own chattels, make a will, make a contract, can sue and be sued. She sues and is sued in person without the interposition of a guardian; she can plead with her own voice if she pleases; indeed— and this is a strong case—a married woman will sometimes appear as her husband’s attorney.285 A widow will often be the guardian of her own children; a lady will often be the guardian of the children of her tenants.

Women in public law.The other half of our proposition, that which excludes women from all public functions, was subject to few if any real exceptions. In the thirteenth century the question whether a woman could inherit the crown of England must have been extremely doubtful, for the Empress had never been queen of England. Queens-consort and queens-dowager had acted as regents during the absence of their husbands or sons and presided in court and council.286 The line between office and property cannot always be exactly marked; it has been difficult to prevent the shrievalties from becoming hereditary; if a woman may be a comitissa, why not a vice-comitissa?287 Ornamental offices, hereditary grand serjeanties, women are allowed to carry to their husbands and to transmit to their heirs. So also, when the constitution of the House of Lords takes shape, the husbands of peeresses are summoned to sit there as “tenants by the curtesy,”288 but peeresses are not summoned. “The nearest approach to such a summons,” says Dr. Stubbs, “is that of four abbesses, who in 1306 were cited to a great council held to grant an aid on the knighting of the prince of Wales.”289

Women in court.In the nineteenth century our courts have more than once considered the question whether women did suit to the local moots, more especially to the county court, and have come to what we think the right conclusion.290 Undoubtedly a woman might owe suit to the hundred or the county,291 or rather (for this we think to be the truer phrase) the land that she held might owe suit. Also it is certain that some sheriffs in the latter part of Henry III.’s reign had insisted on the personal attendance of women, not indeed at the county courts, but at those plenary meetings of the hundred courts that were known as the sheriff’s turns. But it is equally certain that this exaction was regarded as an abuse and forbidden.292 We cannot doubt, though the evidence on this point is rather tacit than express, that women did the suit due from their land by deputy. Again, we never find women as jurors, except when, as not unfrequently happened, some expectant heir alleged that there was a plot to supplant him by the production of a supposititious child, in which case a jury of matrons was employed.293 To say that women could not be jurors is in this period almost equivalent to saying that they could not give evidence, but their names sometimes appear among the witnesses of charters.294 In all actions a plaintiff had to produce a suit (secta) of persons who in theory were prepared to testify on his behalf; we cannot find that he ever brought women. One of the actions in which such “suitors” were of importance was the action for deciding whether a person was free or villein, and here Britton expressly tells us that a woman’s testimony was not received, “for the blood of a man shall not be tried by women”; the word of women, we are elsewhere told, cannot be admitted as proof, “because of their frailty.”295 In the ecclesiastical courts the rule seems to have been that a woman’s compurgators ought to be women,296 just as a man’s compurgators ought to be men, but apparently in the king’s court a woman had to find male oath-helpers.297 In one respect a woman’s capacity of suing was curtailed by her inability to fight. A rule older than, but sanctioned by, the Great Charter prevented her from bringing an appeal of felony unless the crime of which she complained was violence to her person or the slaughter of her husband.298 In these excepted cases the accused must submit to trial by jury; at an earlier time one or other of the parties would have been sent to the ordeal.299 In the thirteenth century this limitation of the right to make criminal charges was already becoming of little importance, since the procedure by way of appeal (that is, of private accusation) was giving place to the indictment.

Summary.On the whole we may say that, though it has no formulated theory about the position of women, a sure instinct has already guided the law to a general rule which will endure until our own time. As regards private rights women are on the same level as men, though postponed in the canons of inheritance; but public functions they have none. In the camp, at the council board, on the bench, in the jury box there is no place for them.300

Married women.We have been speaking of women who are sole, who are spinsters or widows. Women who have husbands are in a different position. This, however, can be best discussed as part of family law, and under that title we shall also say what has to be said of infants. But here it may be well to observe that the main idea which governs the law of husband and wife is not that of an “unity of person,” but that of the guardianship, the mund, the profitable guardianship, which the husband has over the wife and over her property.

§ 12.

Corporations and Churches301

The corporation.Every system of law that has attained a certain degree of maturity seems compelled by the ever-increasing complexity of human affairs to create persons who are not men, or rather (for this may be a truer statement) to recognize that such persons have come and are coming into existence, and to regulate their rights and duties. In the history of medieval Europe we have to watch on the one hand the evolution of groups (in particular, religious groups and groups of burgesses) which in our eyes seem to display all or many of the characteristics of corporations, and on the other hand the play of thought around that idea of an universitas which was being slowly discovered in the Roman law-books.

Analysis of the corporation.We have become so familiar with the idea of “a corporation aggregate of many” that we have ceased to wonder at it. When we are told by statute that the word “person” is to include “body politic,” that seems to us a very natural rule.302 Nevertheless, this idea was gradually fashioned, and when we attempt to analyze it we find that it is an elastic because it is, if we may so say, a very contentless idea, a blank form of legal thought. Little enough in common have the divers corporations known to English law: for example, the Ecclesiastical Commissioners for England; the Dean and Chapter of Ely; the Chancellor, Masters and Scholars of the University of Oxford; the Mayor, Aldermen and Burgesses of the Borough of Cambridge; the Governor and Company of the Bank of England; the Great Northern Railway Company; Styles, Nokes and Company (Limited). Among “natural persons” the law for a long time past has been able to single out one class as being normal or typical and to treat other classes as exceptional; and to this we may add that in course of time some of the exceptional classes disappear; the noble class disappears, the unfree class disappears. Far otherwise is it with the “artificial persons” or “group-persons”; we can hardly call one corporation more normal than another and modern legislation is constantly supplying us with new kinds. Thus we are not likely to find the essence of a corporation in any one rule of law. If, for example, an English lawyer would make all turn on the common seal, he would be setting up a merely English rule as a necessary maxim of jurisprudence; nor only so, for he would be begging an important question about the early history of corporations in England. Some again may feel inclined to say that a corporation must have its origin in a special act of the State, for example, in England a royal charter; but they again will be in danger of begging a question about ancient history, while they will have difficulty in squaring their opinion with the modern history of joint-stock companies. Modern legislation enables a small group of private men to engender a corporation by registration, and to urge that this is the effect of “statute” and not of “common law” is to insist upon a distinction which we hardly dare carry beyond the four seas. Or, to come to a more vital point, shall we demand that an individual corporator shall not be liable for the debts of the corporation? “Si quid universitati debetur singulis non debetur; nec quod debet universitas singuli debent”303 —is not this the very core of the matter? Once more modern legislation bids us pause:—there is no reason why a statute should not say that a judgment obtained against a corporation can be enforced against all the lands and all the goods of every single corporator, and this although the corporation still exists:—in ordering that this be so, the legislature does not contradict itself.304 Nor again is it only from modern statute, that we receive this warning; our ancient common law gives us the same warning in unmistakable terms. If we insist that common law cannot hold the singuli liable for the debt of the universitas, we shall find little to say about corporations in any century earlier than the fifteenth.

Beginnings of corporateness.Hitherto the lesson that we have been taking to ourselves is that we are not to deny the presence of the idea of a corporation merely because it is not producing all of what we consider its natural effects. The warning is equally necessary that in remote times we may somewhat easily discover corporations that never existed. The history of the earlier part of our own century proves that large commercial enterprises may be conducted and much done in the way of subordinate government by aggregates of men that are not incorporated. The law of tenancy in common and joint tenancy, the law of partnership, these have been found equal to many heavy and novel demands. And when we turn to a far-off past we may be in great danger of too readily seeing a corporation in some group of landholders, which, if modern distinctions are to be applied at all, would be better classed as a group of joint tenants than as a corporation.

Personality of the corporation.The core of the matter seems to be that for more or less numerous purposes some organized group of men305 is treated as an unit which has rights and duties other than the rights and duties of all or any of its members. What is true of this whole need not be true of the sum of its parts, and what is true of the sum of the parts need not be true of the whole. The corporation, for example, can own land and its land will not be owned by the sum of the corporators; and, on the other hand, if all the corporators are co-owners of a thing, then that thing is not owned by the corporation. This being so, lawyers from the thirteenth century onwards have been wont to attribute to the corporation a “personality” that is “fictitious” or “artificial.” Now “person” and “personality” seem to be appropriate words, and, if they were not at our disposal, we should be driven to coin others of a similar import.306 The corporate unit has become a subject of rights and duties. On the other hand, the adjectives which are often used to qualify this personality are open to serious objection, since they seem to speak to us of some trick or exploit performed by lawyers and to suggest a wide departure of legal theory from fact and common opinion. It may at least be plausibly maintained that the subject of those rights and duties which we ascribe to the corporation is no figment but the organized group of men, though this group is treated as pure unit. Unless all social and political organization deserves to be called fictitious, a contract between a municipal corporation and a joint-stock company is not a relationship between two fictions; it is a relationship between two groups, but between two groups each of which is so organized that for the purpose of the matter in hand, and for many other purposes, it can be treated as an indivisible unit and compared to a man.

The anthropomorphic picture of a corporation.One of the difficulties that beset us at this point is that we are tempted or compelled to seek the aid of those inadequate analogies that are supplied to us by the objects which we see and handle. First we picture to ourselves a body made up of men as a man’s body is made up of members. Then we find ourselves rejecting some of the inferences which this similitude, this crude anthropomorphism,307 might suggest. For instance, we have to admit that every “member” may be injured while the whole “body” suffers no injury. And then perhaps we say in our haste that the corporation which has rights and duties can be no better than fiction or artifice. But all that is proved by the collapse of such analogical reasoning is that social organization differs from, if it also resembles, that organization which the biologist studies; and this should hardly need proof.

Is the personality fictitious?Were we to digress to modern times, we might be able to show that the theory which speaks of the corporation’s personality as fictitious, a theory which English lawyers borrowed from medieval canonists, has never suited our English law very well. It should at all events be known that on the continent of Europe this doctrine no longer enjoys an undisputed orthodoxy either among the students of the Roman universitas308 or among the students of medieval and modern corporations. But here we are dealing with a time when in our own country the need for any idea of a corporation, whether as persona ficta or as “group-person,” has hardly become evident.

The corporation at the end of the middle ages. Now if for a moment we take our stand in Edward IV.’s reign, when the middle ages are nearing their end, we can say that the idea of a corporation is already in the minds of our lawyers; it may trouble them,—this is shown by their frequent discussions about its nature—but still it is there.309 First we notice that they already have a term for it, namely, corporacion, for which corps corporat and corps politik are equivalents. Then under this term several entities which have little in common have been brought: in particular, abbot and convent, dean and chapter, mayor and commonalty. With such “incorporated bodies” they contrast aggregates of men that are not incorporated, townships, parishes, gilds.310 They demand that incorporatedness shall have some definite and authoritative commencement; the corporation does not grow by nature; it must be made, by the act of parliament, or of the king, or of the pope,311 though prescription may be equivalent to royal charter. The rule that the corporation can do no act save by a writing under its common seal they enforce with severity; it is an anomaly, a concession to practical necessities, that the commands of the corporation about petty affairs can come to its servants through less formal channels.312 The corporation is invisible, incorporeal, immortal; it cannot be assaulted, or beaten or imprisoned; it cannot commit treason; a doubt has occurred as to whether it can commit a trespass,313 but this doubt (though it will give trouble so late as the year 1842314 ) has been rejected by practice, if not removed by any consistent theory.315 We even find it said that the corporation is but a name.316 On the other hand, it is a person.317 It is at once a person and yet but a name; in short, it is persona ficta.

The corporation and its head. Anthropomorphism.The main difficulty that the lawyers have in manipulating this idea is occasioned by the fact that almost every corporation has a “head,” which head is separately and expressly designated by the formal title of the juristic person. It is regarded as an anomaly that at Ripon there should be a corporation of canons without a head;318 normally there is a head; the ideal person is not the Convent of St. Albans, the Chapter of Lincoln, the Commonalty of Norwich, but the Abbot and Convent of St. Albans, the Dean and Chapter of Lincoln, the Mayor, Sheriffs and Commonalty of Norwich. This keeps alive the anthropomorphic idea. In 1481 a puzzling question arose as to whether when a dean and chapter brought an action, a juror might be challenged on the ground that he was brother to one of the canons. An advocate who urges that the juror is “a stranger to the chapter, for it is a body of such a nature that it can have neither brother nor cousin,” none the less concedes that peradventure it might have been otherwise had the juror been brother to the dean.319 Elsewhere the relation between dean and chapter is compared to that between husband and wife; “the chapter is covert by the dean as the wife is coverte by her husband.”320 From the same year, 1481, we get one of the most interesting cases in all the Year Books:321 —The Abbot of Holme sued the Mayor, Sheriffs and Commonalty of Norwich on a bond, and they pleaded that when the bond was made the then abbot had got the then mayor in prison and extorted the bond by duress.322 The lawyers very generally admit that the corporation itself cannot be in prison or suffer duress, and that it would be no defence to urge that when the bond was made some few of the citizens of Norwich were (as they generally would be) in gaol. But then in this case “the head” of the corporation was incarcerated. “I tell you, Sir,” says counsel for the city,323 “that every body politic is made up of natural men. And as regards what has been said touching its inseverability, I do not admit that; for they allow that mayor, sheriffs and commonalty make up a single body; here then are members, namely, the mayor is one member . . . the sheriffs another member . . . the third is the commonalty . . . In this case there is an alleged imprisonment of one of the distinct members named in the title of the corporation, to wit, the mayor, who is the head and (as in a body natural) the principal member . . . and if one member of the body natural be restrained or beaten, that is a restraint or battery of the whole body.” This idea that a corporation consists of head and members, that every act of the corporation requires the assent of its head, that, if for a while it is headless, it is capable of no act save that of electing a new head, has given trouble in more recent times and is perhaps capable of giving trouble even at the present day;324 it is a relic of what we have called anthropomorphism. In Edward IV.’s day we are told325 that the Mayor and Commonalty of Newcastle gave a bond to the person who happened to be mayor, naming him by his personal name. It was held void, for a man cannot be bound to himself. So long as such a decision for such a reason is possible, the modern idea of a corporation is not secure; at any rate it is hampered by an inconsistent and older idea. Still in the Year Books of Edward IV. that idea is present, nay, prominent, and some important rules of law in which it is implied have already been settled. In particular it is established that if the corporation becomes liable upon contract or for tort, this does not give a remedy against the persons, lands or goods of the corporators; the corporation itself is liable; execution will be done only on its lands and its goods.

The corporation vanishes as we pursue it.We go back but a little way in the Year Books and the idea that we have been watching begins to disappear. The figure of the ideal person vanishes, or rather it seems at times to become a mere mass of natural persons. One instance will serve to illustrate this change. So late as 1429 an action of trespass was brought against the Mayor, Bailiffs and Commonalty of Ipswich and one J. Jabe.326 The defendants pleaded the marvellous plea that Jabe was one of the commonalty and therefore was named twice over. If the defendants are found guilty, then (it was urged) Jabe will be charged twice over; besides he may be found not guilty and the commonalty guilty: that is to say, he may be found both guilty and not guilty. We do not know how the case was decided; but it was twice discussed. Incidentally a fundamental question of corporation law was raised. Suppose that judgment is given against the commonalty, can the goods of the members be taken in execution? On the whole the judges think that they cannot, but are not very sure. They make an admission of great importance to us, namely, that it is the common course in the King’s Bench that if a community be amerced, the amercement shall be levied from all the goods of the members of the community.327 The obvious tendency of this admission they seek to avoid by saying that there is a great difference between the king and anyone else. As we shall hereafter see this admission was unavoidable; the goods of the members of municipal communities were constantly treated as liable to satisfy the king for debts due by the community as a whole. And a mere doubt about the general principle of corporate liability occurring at so late a date as 1429 is remarkable.328 We have indeed observed before now that the non-liability of individual corporators for the debts of the corporation cannot be regarded as of the essence of a corporation. Still unless such non-liability had been common, the modern idea of a corporation would hardly have been formed.

Gradual appearance of the group-person.In all this there is nothing to surprise us. Surprising it would have been had the English lawyers of Bracton’s day obtained a firm hold of the notion of an universitas. In that case they would have been ahead of their Italian contemporaries, who had Code and Digest to set them thinking. It would be a mistake to suppose that what we are wont to consider the true theory of universitates lay so plainly written on the face of the Roman law-books that no one could read them attentively without grasping it. The glossators did not grasp it. Bracton’s master Azo had not grasped it. They were by no means certain about the difference between the universitas and the societas or partnership. The canonists of the thirteenth century were just beginning to proclaim that the universitas is a persona and a persona ficta. Bracton’s contemporary, Pope Innocent IV. (Sinibaldus Fliscus), has been called the father of the modern theory of corporations. We now begin to hear the dogma (of which all English lawyers know a vulgar version) that the universitas can be punished neither in this world nor in the next, for that it has nor soul nor body. And yet, when these steps had been taken, many an elementary question lay open for the civilians and canonists.329

The law of Bracton’s time.This premised, we turn to the law of Henry III.’s day for the, purpose of hearing what it has to say (1) of corporations in general, and (2) of the more important kinds into which corporations may be divided. But at once we discover that of corporations in general little is said, and the law is not dividing corporations into various kinds, thus proceeding from the abstract to the concrete; rather it is slowly coming to the idea of a corporation by dealing with corporations (if so we may call them) of very different kinds.

The communitas.In the first place we can find in our law-books no such terms as corporation, body corporate, body politic, though we may read much of convents, chapters, and communities. The largest term in general use is community, commonalty, or commune, in Latin communitas or communa. It is a large, vague word; in the fourteenth century it is often applied to the English nation, “the community” or “the commune of the land”; it is applied to the Cistercian order;330 it is applied to the University of Cambridge, for “in the vill of Cambridge there are two communes, one of clerks and one of lay men”;331 it can be applied to “the community of merchants who hold the king’s staple of wools”;332 it was applied to the “bachelors” of England who in 1259 had joined together to obtain concessions from the king.333 But we dare not translate it by corporation, for if on the one hand it is describing cities and boroughs which already are, or at least are on their way to become, corporations, it will stand equally well for counties, hundreds and townships, which in the end have failed to acquire a corporate character, and we should be unwilling to suppose that the corporate character once definitely acquired was afterwards lost. One term there was (so it may seem to us) capable of binding together all the groups of men that were personified, namely, the word universitas. But its fate has been curious and instructive. In our modern languages the Roman term that most nearly answered to our corporation stands for the corporations of one small class, the learned corporations that were founded in the twelfth and thirteenth centuries and others that in later days were fashioned after their likeness. These were in the middle ages the corporations by preeminence, and if the universities of Oxford and Cambridge cared to assert that they are the oldest of English corporations something might be said in favour of their claim. For the rest, the word universitas is of common use in legal documents; but only in one context, and one which shows how vague a term it could be. The maker of a charter salutes “All the faithful in Christ,” or “All the sons of Holy Church,” and then requests their attention by Noverit universitas vestra. Now the idea of the Church as the mystical body of Christ has had an important influence on the growth of the law of corporations; it did much towards fashioning for us the anthropomorphic picture of the many members in one body. Still in days when the word universitas was put to its commonest use in describing a world-wide, divinely created organization, it could be of small service to lawyers as an accurate word of art.

Bracton and the universitas.Bracton has a little to say about universitates; it is meagre, it is vague, it is for the more part borrowed from Azo, but none the less it is instructive. In the first place, the cities and boroughs are the only examples of universitates which occur to him. In the second place, following the Institutes,334 he admits that there are res universitatis which are to be contrasted with res singulorum. Thirdly, no definite examples of res universitatis does he give save those that are given by the Institutes, namely, the theatrum and stadium. The inference is obvious that, though he allowed the possibility of an universitas holding land, he knew little of the English city or borough as a landowner; it is not in his manner to give Roman examples when he can give English, while as to our medieval boroughs having stadia et theatra, that is nonsense. Fourthly, he knows that if the English universitas, the city or borough, has but little land and few goods, it has magnificent libertates, franchises, governmental powers and immunities, and these are a common subject of litigation. Fifthly, when he speaks of such litigation he speaks vaguely, and hardly distinguishes between the universitas and the aggregate of singuli. Sixthly, he nowhere makes an act of royal or public power necessary to the existence of an universitas. Lastly, he does not bring any ecclesiastical bodies under this heading; they fall within another form of thought.335

No law as yet for corporations in general.Being unable to find any theory about corporations in general, we are obliged to descend to the various kinds of corporations: to consider, that is, the manner in which the law of the thirteenth century treated those various groups of men which seem to us to have a more or less corporate existence. They are either ecclesiastical or temporal.

Church lands.For many centuries before Bracton’s day there have been in England what we may call “church lands.”336 In some sort or another they have “belonged” to “churches.” But to fashion a satisfactory theory as to the ownership of these lands has been a task beset by practical and intellectual difficulties. The scheme of church-property-law which had prevailed in the Roman world before the German deluge had been a system of centralized and official administration. All the ecclesiastical property within a diocese was under the control and at the disposal of a single officer, the bishop of the civitas. His powers were very large; his subordinates, the diocesan clergy, received the stipends that he allowed them. Such a scheme was adapted only to an age that was far advanced in commerce and orderly government, and we may doubt whether it served even as an ideal in England where the thread of ecclesiastical tradition had been broken. It implies an easy transmission of wealth and messages from place to place; it was thoroughly civic and could not be maintained in a world of villages and manors inhabited by rude barbarians. If there is to be much Christianity in the land, not only must there be village churches, but the village church must be a proprietary centre, an economically self-sufficing institution.

The owned church.Then, as we are beginning to understand, the German has brought with him into the Roman and Christian world the notion that, if he builds a church upon his land, it is his church. If in the days of heathenry he had built a god-house on his land, it would have been his god-house, and he would have made profit out of it.337 This is the origin of ecclesiastical patronage. The right which from the twelfth century onwards appears as a mere right of patronage, an advocatio or advowson, is in origin an ownership of the soil upon which the church stands and an ownership of any lands or goods that have been set apart for the sustenance of a priest who offers sacrifice at the shrine. By slow degrees, which are now being traced, this church-founder and his heirs have to be taught that they cannot do just what they like with their own; and, for example, that they cannot have their church worked for them by ordained slaves. The bishop will not consecrate the altar unless a sufficient provision of worldly goods is secured for the priest. The owner or patron, whichever we call him, must hand over the church and an appurtenant glebe to the priest by way of “loan.” In modern England it is in this context and this context only that we still know, though only in name, the “land-loan” of the old Frankish world: the parson still has a “benefice,” a beneficium. It is long before the founder’s ownership is whittled down to patronage. We may be fairly sure that the famous ceorl who throve to thegn-right by “having” five hides of his own land, “church and kitchen, bell-house and burhgeat,” was conceived to “have” the church in no very different sense from that in which he “had” the bell-house and the kitchen.338 In Domesday Book the village church is apt to appear as an owned thing if also as an owning person: “There are here a church and seven serfs and one mill”: “There are here a chapel and three serfs and one mill”: “There is one chapel which renders eight shillings”:339 “Culling the burgess has a church of St. Mary of 26 acres, Leofstan the priest has a church of St. Augustin of 11 acres, Leoflet a free woman had a church of St. Laurence of 12 acres.”340 Even Bracton must complain that the layman will talk of giving a church when he means that he is giving an advowson.341 Hence the strongly proprietary element that there is in the right of patronage, an element of which the “religious” take full advantage when they engulf the parish churches in the property of their minsters. Modern ecclesiastical reformers who would curtail such rights as the patron still enjoys may fairly say that they are consummating the work of a thousand years; but they should not talk of “restoration.”342

The saint as owner.The early history of church-property in England has never yet been written, and we cannot aspire to write it. We do not, for example, know how the parish church became an owning unit with rights distinct from those of the bishop and his cathedral church on the one hand and from those of the founder or patron on the other. But there is a supernatural element in the story. Great changes take place behind a mystic veil. At least for the purposes of popular thought and speech, God and the saints become the subjects of legal rights, if not of legal duties. “God’s property and the church’s twelve fold”:—such were the first written words of English law. In the old land-books this notion is put before us in many striking phrases. In the oldest of them the newly converted Æthelbert says, “To thee Saint Andrew and to thy church at Rochester where Justus the Bishop presides do I give a portion of my land.”343 The saint is the owner; his church at this place or that is mentioned because it is necessary to show of which of his many estates the gift is to form part. If a man will give land to the chief of the Apostles he should give it to St. Peter and his church at Gloucester, or to St. Peter and his church at Westminster; Justinian himself had been obliged to establish a rule for the interpretation of testaments by which the Saviour or some archangel or martyr was nominated heir and no church or monastery was named.344 The Anglo-Saxon charters and Domesday Book seem to suppose even a physical connexion between the land given to a saint and the particular church with which it is, or is to be, legally connected; geography must yield to law; the acres may be remote from the hallowed spot, nevertheless they “lie in the church.”345 Just as the earl or thegn may have many manors and a piece of land remote from the manorial centre may “lie in” or “be of” one of those manors, so the saint will have many churches each with land belonging to it. Gradually (if we may so speak) the saint retires behind his churches; the church rather than the saint is thought of as the holder of lands and chattels. When it comes to precise legal thinking the saint is an impracticable person, for if we ascribe rightful we may also have to ascribe wrongful possession to him, and from this we shrink, though Domesday Book courageously charges St. Paul with an “invasion” of land that is not his own.346 But how is the church conceived? In the first instance very grossly as a structure of wood and stone. Land belongs to a church, is an appurtenance of a church, just as other land belongs to or is appurtenant to some hall or dwelling-house. But, as the saint retires, the idea of the church is spiritualized; it becomes a person and, we may say, an ideal, juristic person.

The saint’s administrators.All this while there are human beings who are directing the affairs of the saint and the church, receiving, distributing, enjoying the produce of the land. They are the saint’s administrators; they are the rectores of his church. Some of them, notably the bishops, since their powers of administration are very large, may be spoken of as landholders; but still the land which the bishop has as bishop is hardly his own; when he demands it, he demands it not ut ius suum, but ut ius ecclesiae suae.

Illustrations from Domesday Book.Very often in Domesday Book the saint is the landowner; Saint Paul holds land, Saint Constantine holds land, the Count of Mortain holds land of Saint Petroc.347 Leofstan held land under “the glorious king Edmund.”348 Often a particular ecclesia, or an abbatia, holds land. Sometimes the land is described as that of the saint, but the church is said to hold it;349 sometimes this relation is reversed, the land is the land of the church but the saint holds it.350 Often, again, the land is spoken of as that of the ruler of the church; this is frequently the case when a bishop is concerned:—the land is the land of the Bishop of Exeter and the Bishop of Exeter holds it. Still this is no invariable rule; the church of Worcester, an episcopal church, has lands and St. Mary of Worcester holds them;351 and it is not the Bishop of Rome, but the Roman church of St. Peter the Apostle who holds land in Somerset.352 Sometimes the abbey holds land, sometimes the abbot; sometimes again a distinction is drawn between abbey and abbot; the demesne manors are held by the church itself, but the manors given to knights are held of the abbot.353 There are cases (not very many) in which groups of canons are said to hold lands,354 to hold them in common.355

The church as person.We have said that the “church” becomes a person. If, however, we ask how the “church” is to be conceived, we obtain very various answers from canonists, divines and philosophers. Materialism and mysticism are closely allied. At one moment a theorist will maintain that between the death of a parish priest and the induction of his successor the possession of the glebe is being held and retained by the walls of the church;356 at the next moment we hear of the body or the bride of the Redeemer. With the more exalted of such doctrines the lawyer has little concern; but he should notice that the ecclesia particularis which stands on a certain spot is conceived as a part and member of the ecclesia universalis, for this theory leaves a strong mark on that notion of a corporation, an universitas, which the canonist propagates. He is by the law of his being a centralizer, and perhaps will not shrink from the conclusion that, if analysis be carried to its logical limit, the dominium of all church-property is in the pope. At any rate the will of the ecclesia particularis, the episcopal or parochial church, is not to be found wholly within it. It lives a life that is not its own; the life of a “member.”357

The church as universitas and persona ficta.Meanwhile the legists, exploring Code and Digest, were slowly discovering the universitas and endeavouring to mark it off from the partnership and the group of co-proprietors. The canonists seized this new learning and carried it further. The greater churches had about them a certain collegiateness; there was a group composed of bishop and canons, or abbot and monks. Here then was an idea that they wanted. The ecclesia is an universitas, and the universitas is a persona. That they should go on to add (as Innocent IV. did) that it is persona ficta was not unnatural. The organized group was distinct from the “church”; its will might not be the church’s will. To this we must add that the canonist’s law aspired to deal not only with wrong and crime, reparation and punishment, but also with sin and damnation. In his eyes a person who cannot sin and cannot be damned can only be persona ficta. So the universitas is not the organized group, but a feigned substratum for rights. This theory will easily lead to a denial that a corporation can commit either crime or wrong, and Innocent went this length; but both practice and theory rejected his doctrine.358 The relationship between the group and the feigned substratum could never be fully explained. The leading idea, however, was that the group was not, but only represented, and at times (if we may so speak) misrepresented, the corporation. How little of corporateness, of collegiateness, there is in the canonical idea of a corporation is shown by the ease with which this same idea is extended to a case in which there is no plurality, no group. Our curious phrase “corporation sole” only appears late in the day and seems to be exclusively English; but the canonists had come very near to it in their treatment of the cases in which an ecclesia had but one cleric connected with it; the dignitas or the sedes or the like could be personified.359 Here, as in the case of a “corporation aggregate,” there is “fictitious” personality. So the canonist’s corporation is rather a personified institution than an unified group of men.

The temporal courts and the churches.With the evolution of these ideas the English temporal courts of the thirteenth century were not concerned. The canonical theory of the persona ficta was to bear fruit, some good, some bad, in the English common law of later days; but the internal affairs of the ecclesiastical groups could seldom or never be brought before the lay tribunals, and at the time of which we speak municipal growth had hardly reached that stage at which there would be a crying need for some theory or another of a town’s personality. As yet we hear nothing in the secular courts of corporations whether aggregate or sole, and though we hear much of “churches” the lawyers at Westminster have no occasion to analyze the idea that they are employing.

The parish church.From their point of view we may look at the churches, and first at the parish church. When the rector dies or resigns his post there is no breach in the ownership or even in the possession. It is common to find a rector pleading “I found my church seised of that land.” The theory is well stated in a judgment of 1307:—A church is always under age and is to be treated as an infant, and it is not according to law that infants should be disinherited by the negligence of their guardians or be barred of an action in case they would complain of things wrongfully done by their guardians while they are under age.360 Here we have a juristic person, the church, with a natural person as its guardian, and with the patron and the ordinary to check that guardian in his administrative acts, for some things the rector cannot do without the consent of patron and ordinary. Had this principle been held fast, our later law-books would have been relieved of some cumbrous disputations about “the kind of fee” that a parson has.361

The abbatial church.The case of an abbey was less simple in theory, though the monarchical character of abbatial rule deprived some speculative questions of their importance. The ecclesia or abbatia succeeded the saint as the subject of proprietary rights. But, at least in the view of the king’s courts, the abbot’s power was almost that of an absolute owner. Already in Domesday Book we see that it matters little whether one says that the land is held by the church of Ely, the abbey of Ely, or the abbot of Ely. True that when lands are given to an abbey it is rare to find no mention of “the convent” or “the monks” as well as of God, the saint and the abbot. True also that when the abbey lands are alienated the feoffment is usually said to be made either by the abbot and convent, or by the abbot with the consent of the convent. For all this, the temporal courts are apt to treat the abbot as the one and only natural person who has anything to do with the proprietary rights of the abbey. To the complete exclusion of convent or monks he fully represents the abbey before the law; he sues and is sued alone.362 A rule of ecclesiastical law forbidding prelates to dissipate the lands of their churches363 was so far enforced by the temporal courts that they would give to an abbot an action for recovering lands that had been alienated by his predecessor without the consent of the convent. But this action was given to the successor, not to the convent. Had the convent raised its voice, it would have been told that all its members were dead in law; and even the succeeding abbot could not get back the land without a law-suit; the alienation was voidable, not void.364 And so with obligations: the question commonly takes the form “when and how can an abbot bind his successors?” rather than “when and how can an abbot bind his church or the convent?” In short, owing to the legal deadness of the monks, the abbey property seems to be administered by, and represented by (and we may easily pass thence to possessed by and owned by), the series of successive abbots. In the hands of the king’s justices even this series is apt to break up into a set of disconnected links, each of which is a man. Each successive abbot might sue for lands of which the church had been dispossessed during the abbacy of one of his predecessors; but if a claim for compensation in respect of some unlawful act, such as an abstraction of the church’s goods, accrued to one abbot, it died with him and was not competent to his successor. Actio personalis moritur cum persona, and here the person wronged is dead, for he was a natural person and could die. To make the law otherwise, a clause in the statute of 1267 was necessary.365 Thus, though even in the legal notion of an abbey there is an element that we may call “communal,” an element which is recognized by the ordinary forms of conveyances and obligations, and sanctioned by the rule that alienations of land are voidable if made without the consent of the convent, still this element is by no means prominent, and the abbot’s powers of dealing with property and of binding the abbey (that is his successors) by contract are limited much rather by the idea of the church itself as the true subject of rights and duties, than by any principle that would make him but one among a number of corporators.

The episcopal church.The case of a bishop is not essentially unlike that of an abbot. True that the lands of the see are very often, from Domesday Book downwards, spoken of simply as the lands of the bishop; the fact that they constituted a barony made such language the more natural;366 none the less they were the lands of his church.367 And in the bishop’s case it is at least necessary to distinguish the man from the bishop.368 All the abbot’s lands are the abbey lands, but a bishop may hold lands and goods which in no wise belong to his see; he will have “heirs” as well as official “successors” and may make a will; occasionally he has a great private fortune. In recognizing the possibility of one man having, as we should say, two capacities, a natural and a politic or official capacity, the law made an important step; there are signs that it was not easily made;369 but the idea of the church as the true owner of the episcopal lands made this step the easier, for in one of his two capacities the bishop was no owner but merely a rector or custos. Again, there was a communal element to be considered. The lands of the see, if they were the lands of the bishop, were also in some sort the lands of the cathedral convent or chapter, and this, though it might be a group of monks dead to the law, might also be a group of secular canons, each of whom was a fully competent legal person. To a small extent the law recognized the interest of this group; without its consent the bishop could make no alienation of the church’s lands that would not be voidable by his successor. Still the members of the chapter had no action if the bishop without their consent dissipated the wealth of the see, and this shows us that the person wronged by such dissipation was not a community of which the bishop was the head, but rather the church, an ideal person, whose guardian he was. He might do nothing to the disherison of his ward without the advice of his council, his constitutional advisers.

Disintegration of ecclesiastical groups.There is, however, within the ecclesiastical sphere a well marked movement towards individualism; it goes on from century to century. The clerical groups begin to divide their property. As a first stage we may notice the permanent allotment of lands to specific wants of the group; one manor supplies the monks with food, another with clothing, one in some sort belongs to the cellarer, another to the almoner, sacrist, vestiary. Such arrangements, though they seem to have been regarded as solemn and permanent, were matters of internal economy and, at least as regards the outside world, had no legal effect: the abbot still represented all the lands and all the affairs of the abbey before the law. But sometimes, even in a monastic society, the process went further; often when a bishop’s church was monastic, as for example at Canterbury, Durham and Worcester, a partition of lands was made between the bishop and the monks, and even the temporal law took notice of such a partition; the Prior of Canterbury became the legal representative of one section, if we may so speak, of the now divided ecclesia of Canterbury.370 Even in the case of an abbey such partitions were sometimes made, and the Prior of Westminster sued the Abbot.371 When the group was not monastic but secular the process often went much further; prebends were created; the bishop held lands in right of his bishopric, the dean in right of his deanery, the prebendary in right of his prebend.372 Though for ecclesiastical purposes the group might be organic, it as an unit had little to do within the sphere of lay justice, and, if we may use the terms of a later day, the “corporation aggregate” was almost resolved into a mere collection of “corporations sole.”

Communal groups of secular clerks.Still throughout the middle ages there were groups of ecclesiastics which, as we should say, were corporations aggregate and which, being composed of seculars, were not subject to the monarchical rule of an abbot. The number and wealth of such bodies, and therefore their importance in the history of our law, might easily be exaggerated, but still they existed, and took part in litigation; suits, for example, are said to be brought by and against the canons or the dean and canons of a church.373 In these cases we seem to see all the elements of a corporation aggregate. In the first place, there is personality; the lands, the affairs, administered by dean and canons, master and brethren, are the lands, the affairs, of a church or a hospital. In the second place, the administrators for the time being are a legally organized body, a body which perdures while its members come and go.374 In the third place, this body transacts business as a body by means of meetings and votings and resolutions; the motive power is not (as it is in the case of an abbey) the will of a single man. Our lawyers, however, learnt from the ecclesiastical groups fewer valuable lessons than we might have expected. The groups which were compact were despotically ruled, and the groups which were not despotically ruled were not very numerous nor very wealthy and seldom came before the courts as organized bodies.

Internal affairs of clerical groups.As regards the internal economy of the ecclesiastical groups, our common law of the thirteenth century had little to say. Not only was this a matter for ecclesiastical law, but a deep-seated reverence for a seal served to adjourn some difficult questions which otherwise must have come before the king’s courts. A natural person is bound by his seal; he has himself to blame if some one else, at all events some one whom he has trusted, puts his seal to a bad use.375 So with the church. If Brother Walter, the sacrist of St. Edmunds, gets hold of the seal which usually hangs beside the holy bier and therewith seals a bond for forty marks to Benedict the Jew of Norwich, there is nothing for an enraged abbot to do but to depose Brother Walter.376 It would seem that normally the abbot kept the seal and thus could bind the house. In 1321 it was said that many a priory in England had no common seal; the prior’s seal served all purposes.377

A remarkable attempt was made by Edward I. and his barons to protect the house against the abbot, not so much in the interest of the monks, as in the interest of pious founders, who saw their good intentions brought to naught and the fruits of their donations sent across the sea to the profit of the alien. The common seal, said the Statute of Carlisle (1307), was to remain in the custody of the prior and four discreet inmates of the house and be laid up in safety under the privy seal of the abbot. This statute should be famous, for it was one of the very few illustrations that Coke could give of his doctrine that a statute may be void for unreasonableness;378 and certainly it would seem that in 1449 the court took upon itself to call this statute void, partly because it was self-contradictory (for how can one use a seal at all if it is always locked up?) but also “because if the statute were observed every common seal might be defeated by a mere surmise which could not be the subject of a trial.”379 From this we may gather that the statute had little effect.

The power of majorities.The canonists had by this time much to say about the manner in which legal acts can be done by or on behalf of corporations aggregate. They had a theory of duly convened meetings, and a theory of the powers of majorities. The most noticeable point in their doctrine is that the will of the universitas was expressed, not necessarily by the maior pars conventus, but by the maior et sanior pars. Presumably the major was also the saner part, but an opening was given for dissentients to represent to the rulers of the church (for after all an ecclesia particularis was but a member of the ecclesia universalis) that the resolution of the majority was not the will of the church.380 Much of this learning about corporate acts must have been fairly well known to many educated Englishmen, including some of the king’s judges, and must have been frequently discussed in the chapterhouses, for chapters were quarrelsome and the last word about their quarrels could be said by Italian lawyers. But the influence of all this doctrine upon English temporal law was as yet indirect and subtle and we have not the knowledge that would enable us to trace it.

The ecclesiastical and the temporal communities.It is in no wise strange that the English lawyers of this age had not as yet brought the ecclesiastical and the temporal corporations under one heading; so different were they. This we see at once when we have asked the question “What temporal groups of men are there which can have any claim to be corporate?” and have answered it by saying “Chiefly counties, hundreds, townships, manors, cities and boroughs, in a word (since we can coin no better term) land communities. ” The church, the religious order, the hospital, exists for a definite purpose: for the honour of a patron saint, the defence of the Holy Land, the relief of lepers. The ideal person has a permanent ideal will expressed in the rule of St. Benedict or in some foundation charter. But for what purpose do townships and boroughs exist? Where is the permanent will of a city to be found? Again, the group of monks or canons is a voluntary society; of their own free choice and by a definite act men become members of chapters or convents; but, at least normally, the member of a township can hardly be said to have chosen to be a member; it may be that he has inherited a tenement; it may be that he has bought one; but even in the latter case the main thing that he bought was a tenement, not a place in a community. In these respects the chapters and convents stood nearer to our modern joint-stock companies than to the medieval boroughs. The company is a voluntary society and has a definite aim expressed in its memorandum and articles. But the township or the borough has come into being no one knows when, and exists no one knows why.

The boroughs and other land communities.Bracton seems to feel—to feel perhaps rather than to know— that among these communities a line should be drawn, that cities and boroughs display some phenomenon, some degree of organic unity, that is not to be found in the open country, that the civic or burghal community is no mere community but an universitas civiumvel burgensium.381 But at this point we must for a while break off our discussion. The question whether and in what sense these land communities or some of them deserve to be called corporate units can only be approached after we have examined their structure and functions, and to this examination we must devote another chapter. Only at its end and, it is to be feared, after many digressions, can we return to the person who is not a man. That person, if he exists, is implicated in a system of local self-government.

§ 13.

The King and The Crown

Is there a Crown?The legal position of the king has been fully discussed by historians of our constitution, and on the province which they have made their own we do not intend to trespass. Nor do we think that a chapter on the law of persons is the proper place in which to collect all or nearly all that can be said of the king. Still there is a question concerning him to which we are naturally led by what we have recently said about “fictitious” persons:—Is the king merely a natural person, or does the law see beside or behind the natural Henry or Edward some non-natural, ideal person, some “corporation sole”?382

Sixteenth century theories of the king’s two bodies.In the sixteenth century our lawyers will use mystical language of the king. At times they will seem bent on elaborating a creed of royalty which shall take no shame if set beside the Athanasian symbol. The king has a body corporate in a body natural and a body natural in a body corporate. They can dispute as to whether certain attributes which belong to the king belong to him in his natural or in his politic capacity. Some of their grandiose phrases may be due to nothing better than a desire to stand well with the reigning prince; some of their subtle distinctions may be due to that love of mystery which is natural to us all; nevertheless we must allow that there were real difficulties to be solved, and that the personification of the kingly office in the guise of a corporation sole was in the then state of the law an almost necessary expedient for the solution of those difficulties. Also we might show that if, on the one hand, this lawyerly doctrine was apt to flatter the vanity of kings, it was, on the other hand, a not very clumsy expression of those limits which had gradually been set to the king’s lawful power and that it served to harmonize modern with ancient law. But we are now to deal with ancient times, in particular with the thirteenth century. The metaphysical king, the corporation sole, does not yet exist; the difficulties which are met by his creation are only beginning to arise.

Personification of the kingship not necessary.In the first place, let us notice that a great deal can be done without any personification of the kingly office. The mere amount of the business that is performed in the king’s name but without his knowledge does not demand any such feat of jurisprudence as the creation of a new person. The ordinary law of agency is equal to the occasion. To this we may add that the gulf between the king and the greatest of his subjects is by no means so wide as it will afterwards become. A great prelate or a palatine earl will like the king have many high placed officers, stewards, chancellors, treasurers and the like, who will do many acts in his name, judicial acts and governmental acts, of which in all probability he will hear no word.

The king’s rights as intensified private rights.Then again, the rights of the king are conceived as differing from the rights of other men rather in degree than in kind. At the beginning of Edward I.’s reign this is expressed by lawyers in their common saying, “The king is prerogative.” As yet the term prerogative is hardly used except in this adjectival manner. It suggests to us that the king has the rights which are given to others by the ordinary law, but that we are likely to find that each particular right is intensified when it is the king’s; the usual definition of it is exceeded, “for the king is prerogative.” For example, he has the rights of a feudal lord to wardships and marriages, but in his case these rights are augmented. If the whole law were written down, we should not be sent to one great chapter of it to learn the law of the kingship; rather we should see at the end of every proposition of private law or procedural law some note to the effect that this proposition must be modified before it is applied to the king’s case. “Prerogativity” is exceptionality.383

The king and other lords.Such is the general conception; and, turning to particulars, we shall usually see that the king’s rights can be brought under it. He has hardly a power for which an analogy cannot be found elsewhere. If he holds a court of his tenants in chief, his barons will do the like; if he asks an aid from them, they will ask an aid from their knights; if he tallages his demesne land, they can exercise a similar right. It is with difficulty that they are restrained from declaring war. If he prosecutes criminals, this is because his peace has been broken, and other lords are often proceeding against offenders who have done them “shame and damage” by breaking their peace. In pardoning a criminal, the king only waives his rights, and he cannot waive the rights of others; he cannot prevent a private prosecutor from urging an appeal of felony.384

The kingship as property.The kingly power is a mode of dominium; the ownership of a chattel, the lordship, the tenancy, of lands, these also are modes of dominium. We may argue backwards and forwards between the kingly right and the rights of private landholders. This is the more remarkable in the case of inheritance, for, as is well known, the notion that the kingship is in some sort elective is but slowly dying.385 For all this, the king is conceived to hold his lands by a strict hereditary right, and between his lands and the kingship it would be hard to distinguish. This is the way in which King Edward asserts his title to land in Lincolnshire:—“Richard my ancestor was seised thereof in his demesne as of fee, and from the said Richard, because he died without an heir of his body, the right descended to a certain King John as his brother and heir, and from him to King Henry as his son and heir, and from the said Henry to me as his son and heir.”386 Such a declaration may seem strange, for nothing is said of Arthur, and in Edward I.’s day the ordinary law of inheritance would have preferred Arthur to John. But this brings out another point:—We may argue from the whole kingdom to each acre of land. The problem which was opened by the death of Richard was at that time an unsolved question—primogenitary rules were as yet new—Glanvill did not know how it should be answered.387 John obtained the crown. This was a precedent in favour of the uncle against the nephew, and as such it was treated by Bracton in the case of private inheritances. The nephew may have the better right, but if the uncle is the first to take possession, the nephew cannot succeed in an action “because of the king’s case.”388 In Edward I.’s day lawyers know that there is something odd in the king’s pedigree: we must not argue about it.389 Still the descent of the crown was not so unique a phenomenon then as it is now-a-days. No one, it may be, would have proposed to divide England among several co-heiresses, and we cannot say with certainty that a woman could have inherited the crown; but the question whether the county of Chester was partible had lately been treated as open,390 while in Scotland not only was the crown claimed for the Maid of Norway, but Bruce and Hastings urged that the kingdom was divisible and should be divided between them and Balliol.391

The king’s rights can be exercised by him.Even if we find that the king has some unique rights, rights for which analogies will be sought in vain, still they are rights that a natural person can exercise. Thus the royal lawyers are bent on establishing the doctrine that all justiciary powers are derived from the king. In terms made familiar by the canonists, they assert that the king is the “judge ordinary” of the whole realm and that all others who administer justice are “judges delegate.”392 They have difficulty enough in making good this assertion in the teeth of feudal claims; but, when it is made, it does not attribute justiciary powers to a fictitious person, it attributes them to a real Henry or Edward. Bracton is in earnest when he says that, were the king strong enough, he would do all justice in person.393 Far distant is the thought that the king may not sit as the active president of his own court. King Henry sits there and important cases will be adjourned if he be not present.394 Justices have been fined for proceeding in the king’s absence.395 There is something anomalous in the ascription to a king of powers that he may not lawfully exercise in person, something which may suggest that our “king” is rather a figment of the law than a man; but that a man should be able to do by delegate what he may do himself if he pleases—there is nothing strange in that. Then again, the doctrine that the king’s will can only be expressed by formal documents, sealed, or signed and countersigned, does not belong to the twelfth or thirteenth centuries. On the contrary, the king’s will expressed by word of mouth is more potent than any writ.396

The king can do wrong, but no action lies against him.The rule which in later times will be expressed by the phrase “The king can do no wrong” causes no difficulty. That you can neither sue nor prosecute the king is a simple fact, which does not require that we shall invest the king with any non-natural attributes or make him other than the sinful man that he is. The king can do wrong; he can break the law; he is below the law, though he is below no man and below no court of law. It is quite conceivable that he should be below a court of law.397 In the second half of the century some lawyers are already arguing that this is or ought to be the case.398 What is more, a pious legend of Westminster Hall tells how “in ancient times every writ of right droiturel or possessory lay against the king.”399 The lawyer who said this in Edward I.’s day was careful to leave the ancient times indefinite; probably he was referring to the good old days of the Confessor and, like Blackstone after him, saw “our Saxon ancestors” impleading each other by writs of entry.400 But the legend grew, and, as legends will, became more definite. In the middle of the fourteenth century the common belief was that down to the time of Edward I. the king could be sued like a private person, and a judge said that he had seen a writ beginning with Praecipe Henrico Regi Angliae.401 If he had seen anything of the kind, it was some joke, some forgery, or possibly some relic of the Barons’ War. About this matter there should be no doubt at all. Bracton, no mere text writer, but an experienced judge of the highest court, says plainly that writs do not run against the king.402 “Our lord the king cannot be summoned or receive a command from any one”—this comes from a judgment of the king’s court in 1234.403 “Our court is not above us and cannot summon nor compel us against our will”—this comes from a writ tested by Hubert de Burgh in 1223.404 This positive evidence is strong; the negative evidence is overwhelming. If Henry III. had been capable of being sued, he would have passed his life as a defendant. In the opinion of many of his subjects he was for ever breaking the law. Plea rolls from his reign there are plenty, and in the seventeenth century they were jealously scanned by eyes which did not look kindly upon kings. Where are the records of cases in which King Henry issued writs against himself? We cannot but believe that Praecipe Henrico Regi is what Francis Bacon called it, an old fable.405 To this must be added that the king has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the king disseises A and transfers the land to X, then X when he is sued will say that he cannot answer without the king, and the action will be stayed until the king orders that it shall proceed. So if the king’s bailiff is charged with a disseisin done in the king’s name, the justices will indeed take a verdict about the facts, but they will give no judgment Rege inconsulto.406 Still all this “prerogativity” is compatible with humanity, and when the king appears as a plaintiff or submits to be treated as a defendant the difference between him and a private person is less marked in the thirteenth century than it is in later times. When he is a plaintiff he will often employ one of the ordinary writs. A defendant, instead of using what even in Bracton’s day was becoming the proper formula “I cannot answer without the king,” will sometimes boldly say “I vouch the king to warranty.”407 “In the pleadings and proceedings of the king’s suits,” exclaims Bacon, “what a garland of prerogatives doth the law put upon them!”408 This garland is not woven all at once and some of its flowers were but buds in the days of Henry III. But our main point must be that there is as yet little in the law of procedure to suggest that the king is other than a natural person, nothing to suggest that he has two capacities. He enjoys the same privileges whether the matter under discussion is what we should call “an act of state” or whether it is a private bargain. And, after all, the grandest of his immunities is no anomaly. He cannot be compelled to answer in his own court, but this is true of every petty lord of every petty manor; that there happens to be in this world no court above his court is, we may say, an accident.

King’s lands and crown lands.Then again, no line is drawn, at least no marked line, between those proprietary rights which the king has as king and those which he has in his private capacity. The nation, the state, is not personified; there are no lands which belong to the nation or to the state. The king’s lands are the king’s lands; the king’s treasure is the king’s treasure: there is no more to be said. True that a distinction is made between “the ancient demesne of the crown” and lands that have come to the king by modern title. The main import of this distinction is to be found in the strong sentiment—it is rather a sentiment than a rule of law—that the ancient demesne should not be given away, and that, if it be given away, some future king may resume it.409 But even here private law affords or has afforded an analogy. It is only of late years, only since Glanvill wrote, that a tenant in fee simple has been able utterly to disappoint his expectant heirs by alienating his land; his power over land which he himself has purchased has been greater than his power over lands which have descended to him and which constitute the ancient demesne of his family. The king, who asserts a right to revoke the improvident grants of his ancestors, is relying on an antique rule of family law, rather than upon any such doctrine as that kings are trustees for the nation. The idea that a man may hold land or goods in two different capacities is not easily formed.

Slow growth of a law of “capacities.”We may see this even in the ecclesiastical region. Though here the personality of the saint or of the church makes the distinction easier, still in age after age people find much difficulty in marking off office from property, and in separating the lands and goods which a man enjoys or uses because he is the ruler of a church from those which, as we should say, belong to him in his private capacity. On the one hand, it is hard to prevent the ecclesiastical benefice from becoming hereditary. On the other hand, it is not readily admitted that a bishop or a parson can have property which is in no sense the property of his church. This difficulty it is which provides an excuse for that interference by the king with the goods of dead bishops, which historians are too apt to treat as sufficiently explained by mere rapacity. An abuse we are willing to call it, but there is an excuse for it. On the death of the bishop, the king is guardian of the temporalities of the church; the dead bishop’s goods are the goods of the church.410 This idea is well brought out by what is told of St. Hugh of Lincoln. He did not approve the new custom that bishops should make wills. Still he consented to make one lest otherwise his goods should be seized by the king. Evidently the saintly bishop thought that his goods were his church’s goods; he made a will in order to defeat, if possible, the all too logical, if impious, deduction which kings were ready to draw from this pious doctrine.411 King Stephen had to promise that he would not interfere with the testaments of the bishops, and that, on the death of a bishop intestate, his goods should be distributed for the benefit of his soul by the counsel of the church; but then he was also making something very like a renunciation of his right to a profitable guardianship of the temporalities of the vacant see.412 His successors seize the goods of intestate bishops and expect bishops to apply for a licence if they want to make wills. When Archbishop Roger of York died in 1182, Henry II. enjoyed a windfall of £11,000, to say nothing of the spoons and salt-cellars. A very just retribution, says the dean of St. Paul’s, and quotes from his Digest “quod quisque iuris in alterum statuerit, uti debet eodem iure,” for this Roger had obtained a papal bull enabling him to seize the goods of any clerk in his diocese who, even though he made a testament, did not before his death distribute his goods with his own hands.413 The pope was just as bad as the king in this matter. In 1246 he proclaimed that the goods of all intestate clerks belonged to him, though in the next year he retired from an indefensible position.414 No doubt the canonists could distinguish well enough between the property of the church and the property of the prelate; still we can see that this is a lawyerly distinction; a saintly bishop, like Hugh of Lincoln, will scout it in the interest of his church, a covetous bishop will make light of it in the interest of himself and his kinsfolk, a needy king will know how and when it can be profitably ignored.

No lay corporations sole other than the crown.If these things be done within the ecclesiastical sphere where dead saints still are active, where the canon law with its Roman traditions prevails, what may we not expect in the temporal sphere? Far easier for us is it to personify a church, which actually holds the body, and is guarded by the soul, of the saint, than to personify a nation, a state. No medieval king is tempted to say “I am the state,” for “ Ego sum status ” would be nonsense. On the other hand, no one will say to him “This land, though it may be called your land, is really the land of the state.” And so the king’s land is the king’s land and there is no more to be said about it. It should be remembered that in our fully developed common law the king, or crown, is the only corporation sole of a lay kind. The temporal law of the thirteenth century will aid us with no analogy if we would distinguish between the king’s private property and his official property. Often enough has office become property, or rather (for this we believe to be nearer the truth) rights which older and vaguer law had regarded as half official, half proprietary, have become definitely proprietary. Earldoms and serjeanties belong to this category; but we cannot distinguish between the lands which the earl has as earl and those which he has as man. On the other hand, those offices which have not fallen into this category do not comprise or carry with them any proprietary rights of any kind. The shrievalty is an office, but the sheriff as sheriff has no lands, no goods.415 What is more, trusteeship, at all events a permanent trusteeship, is as yet unknown to the law and can supply us with no analogy. No form of legal thought that is at our disposal will enable us to separate the lands of the nation from the lands of the king.

Is the kingdom alienable?But at least, it will be urged, the king cannot devise the kingdom by his will. No, but the general law is that a landowner cannot devise his land by his will: only God can make an heir, not man. And, after all, this impotence of the king has not been very clearly demonstrated. If standing in the thirteenth century we ask why on the Conqueror’s death Rufus became king of the English, while Robert became duke of the Normans, it is not plain that there is any better answer forthcoming than that the Conqueror, like other lords who had lands on both sides of the sea, partitioned his estates among his sons. But, as already said, the fact that land cannot be devised by testament is a sufficient reply to any who would draw distinctions between kingdoms and other estates. Moreover in the middle of the thirteenth century it is by no means so clear as a patriotic Englishman might wish it to be that the king of England does not hold his kingdom of the pope at an annual rent by virtue of John’s surrender and Innocent’s regrant.416 And, as we saw above, if the king ought to consult his barons before he grants away any large tract of his kingdom, common opinion has expected that a great baron will consult his men, or at least profess to consult them, before he makes large grants out of his honour.417 As to the king’s treasure, it is the king’s treasure and he may do what he pleases with it, though very likely his successor may find an excuse for disregarding some or all of his bequests. Edward III. in his will, draws a marked distinction between the debts that he owes as a private person and the debts that he owes as a king; his executors are to pay the former, while the latter will fall upon his heir and successor. We shall hardly find such a distinction in earlier times.418

The king can die.As yet no king has succeeded to another without there being an interregnum. In the case that is just happening when we make our survey this interregnum is very short. Edward I. far away in the Holy Land began to reign on the day, not of his father’s death, but of his father’s funeral.419 But there is here no legal fiction, nothing that demands any mysterious phrase about the king’s immortality. Edward I. really reigns, before he is crowned, and Edward II. will really reign so soon as his father has ceased to breathe. There is less excuse here for a fiction than there is in the case of a bishop; also there are fewer materials ready to the hand of the constructive lawyer. The bishop’s throne must be vacant at least for a few days, and meanwhile the eternally infant church has other guardians, a guardian of its temporalities, a guardian of its spiritualities. But looking back a little way to cases in which there has been an interregnum of considerable duration, we see that lawyers have not been prepared to stop the gap with a metaphysical king, the personified kingship. When the king dies, his peace dies, and there is no king’s peace until another king is crowned. The king then who has a peace is a mortal man. The evil consequences of this principle may have been somewhat lessened by a proclamation of the peace of one who, though he is not yet king of England, is by hereditary right lord of England. Still such a shift tells us that the only king known to the law is a natural person.420

The king can be under age. A case has lately occurred which, so we may think, must have put the old theory of the kingship to a severe strain. A child but nine years old was crowned. The coronation of Henry III. was an important event. It was, if we may so speak, a two-edged event. On the one hand, it confirmed the doctrine of pure hereditary right; it applied to the kingship the common land law. On the other hand, it showed that a king capable of ruling was no necessity; all that a king could do might be done by a regent and a council in the name of an infant. How William Marshall became “rector regis et regni” is in this context a question of no great interest. There was a grave national crisis; there was civil war; a foreign enemy was in the land. Those barons who had not rejected John did the obvious thing, chose the obvious man as their leader. It was not a time for constitutional dissertations. What happened during Henry’s minority is of greater significance. In litigation which touches royal rights the ordinary rule of private law is applied. An action for land is brought; the person in possession alleges that the king is his warrantor; the action must remain in suspense until the king is of full age.421 Then, when Henry was of full age, he insisted that all charters granted in his name during his minority required confirmation, even the Great Charter and the Forest Charter. He did this we are told by the advice of Hubert de Burgh.422 To exclaim against his faithlessness, his greed, his imprudence, is far easier than to discover any then admitted principle of law which would condemn him. Suppose that his guardians have improvidently alienated some piece of his demesne land, is he not to have the ordinary right which every infant enjoys on attaining his majority?423 Donations, we might say, are one thing, laws another, and Magna Carta is a code of laws. But where and how could the line be drawn? In form the Great Charter was a charter, and between it and the mere gift of single knight’s fee there was a long and gently graduated series of charters granting “liberties” of various kinds to individuals and to larger or smaller classes of men.424 A claim to revoke what is in fact a body of general laws is one which will set men thinking, and may lead them in the end to some mystical dogma such as that the king is never under age; but no such dogma has as yet been fashioned. The king of the thirteenth century is a natural person and may be “under disability.”

Germs of a doctrine of “capacities.”In course of time we see the beginnings of a doctrine of public or official capacities. Lanfranc hints at it when he suggests that the Conqueror, though he may not arrest the Bishop of Bayeux, may lawfully arrest the Earl of Kent.425 Some progress has been made before the end of the thirteenth century. In a carefully worded judgment our king’s court declares that the Bishop of Durham “has a double status, to wit, a temporal and a spiritual status.” The Archbishop of York has excommunicated the bishop for imprisoning some of his metropolitan’s men. But to imprison men belongs to the bishop’s temporal status. Therefore the archbishop has excommunicated not his suffragan bishop but the king’s tenant in chief and must pay a fine.426 A still more interesting case concerns King Edward himself. He in his father’s life time was holding the vill of Stamford and was exercising in it the franchise known as the return of writs. He granted the vill to the Earl of Warenne. Having become king, he demanded by what warrant the earl claimed the franchise. The earl replied “By your own gift; you gave me all that you had in Stamford.” The king’s counsel then pleads that Edward himself had no title to the franchise, and that, being king, he is bound to resume all rights unlawfully detached from the crown, even though he himself, while as yet no king, was the guilty person. “He is now of another estate than he was then and is quasi another person.” The earl combats this theory—“He is one and the same person that he was when he made the gift.” Judgment is given for the king.427 Thus the idea of dual personality may already prevail when the king relies upon it. To enforce it when it would tell against his interests would be a harder task. And as yet this idea looks very new. If there is to be a personification, something material, something as visible as a church, must be personified.

Personification of the crown.We can see the beginnings, but only the beginnings, of a process which personifies the king’s “crown.” And here it may be remarked that even in our own day this process has never gone so far as to modify the formal language of our law. Of course lawyers and judges and even statutes have now for a long time spoken of the rights of the Crown, have spoken of the Crown as doing this, that, and the other act. Still in the strictest language of the law, the language of pleading, the Crown does nothing; it does not sue, it does not prosecute; the king or queen does it all. A personification of the crown has been required, not so much by any purely “juristic necessities,” as by constitutional doctrines which, though they may now-a-days be as well observed as any laws could be, are none the less no laws. Under the cover of the crown—that “metaphor kept in the Tower,” as Tom Paine called it—our slow revolution is accomplishing itself. In the thirteenth century this golden circlet is beginning to be useful. We first hear talk of it when crimes are committed, not only against the king’s peace, but also against “his crown and dignity.” Then we hear of rights which are inseverably annexed to the crown; they indeed make the crown, for the king’s crown is to do justice and keep the peace.428 This is pleasant doctrine for the king, if it is also a sound doctrine for the state; it enables him to resume “liberties” which have been alienated from the crown and check the growth of seignorial justice. In the fourteenth century it is possible to say that the crown, like a church, is always under age and that no lapse of time will bar the demands of this quasi infant.429 But as yet to distinguish between the crown and the king, between the king and the man, is to teach a treasonable doctrine. In Edward II.’s day that doctrine becomes prominent and charges of holding it are bandied to and fro. The barons who are leagued against one of the king’s favourites, Piers Gaveston, are said to hold that allegiance is due rather to the crown than to the person of the king. A few years afterwards the barons who are leagued against another of the king’s favourites, the younger Despenser, accuse him of having held this very doctrine, and, owing to their success, it becomes for all time, to use Coke’s phrase, “a damnable and damned opinion.” But all this lies in the future.430

Retrospect.We are not contending that the proprietary theory of the kingship—if we may give that name to the doctrine which we have been endeavouring to expound—is the most ancient theory, or that it ever fully expresses all the facts and thoughts and feelings which determine what a king shall be and what a king shall do. Probably there has been a one-sided development of those elements in the ancient ideas which have been found capable of legal treatment, while other elements have been forgotten or extruded from the sphere of law. The Conquest of England, the strong monarchy, the tyranny (if we please to call it so) which was founded by the Norman kings, have favoured those and only those notions which exalt the king and give him a property in his kingdom. Still the phenomenon in question is not purely English and cannot be explained without reference to the history of jurisprudence.431 The elements in the old tribal kingship which survived in the struggle for existence were those which in the then state of legal thought were capable of being accurately expressed and defined. For vague thoughts, for half thoughts, the lawyer can find no place. What, for example, is he to make of a title to the crown which is partly hereditary, partly elective? The elective element cannot be developed, for no one can define who are the electors, no one as yet has rules about the powers of majorities. Therefore the elective element must perish or become a mere form. And so with the king’s lands. Either they belong to him or they belong to some other person or persons. Say for a moment that they belong to the nation, how can such a doctrine be enforced when as yet we have no idea, or but the vaguest idea of official capacities, of trusteeship, of corporations aggregate and corporations sole? We do not wish to prejudge any debatable questions of early English history, but that men had clear ideas about these matters in the tenth century and lost them during the twelfth and thirteenth, those ages of brilliant intellectual progress, is not easily to be believed. The one general result to which we come at the end of this long and variegated chapter is that even in Bracton’s day the number of legal ideas is very small and public law has hardly an idea of its own.

CHAPTER III

Jurisdiction and the Communities of the Land

Place of the law of jurisdiction in the medieval scheme.In an exposition of any system of law, ancient or modern, a large space must be given to the composition and competence of courts. In a statement of modern law, however, we should hardly place this topic in the forefront. Courts exist for the purpose of defining and enforcing the rules of substantive law. But when we are dealing with the middle ages, we cannot thus regard what we may call the “law of jurisdiction” as merely subsidiary or “adjective.” It is intertwined with the law of property and the law of personal status and this in many different ways. In the first place, jurisdiction is a proprietary right, or the subject matter of proprietary rights, profitable, alienable, inheritable rights, which are often bound up with the tenure of land. In the second place, jurisdiction is one of the main ties which keeps society together; the man is bound to his lord by this as well as other bonds; he is not merely his lord’s man and his lord’s tenant, but he is also his lord’s “justiciable”; his lord is his “sovereign”; he owes to his lord not merely service but also suit; and thus once more the law of jurisdiction is implicated with the land law.1 Turning again to the masses of unfreemen, we see another connexion between jurisdiction and ownership. If we examine the rights of the lord over his villein we find it difficult to decide where ownership leaves off and where jurisdiction begins; we may have to say, either that the idea of ownership, the master’s ownership of the slave, has been tempered by the idea of jurisdiction, or that rights of jurisdiction are being converted into rights of ownership. Again, we have to form the notion of different spheres of jurisdiction, and this must colour our treatment of important private rights. It is not enough to say that a man has a right in land: we must add that it is, or is not, a right protected by the king’s courts, for although it may be ignored there, still it may be protected by other courts, for example by the court of the manor. Nor is this the result of a mere division of labour such as at the present day may send petty cases to petty tribunals. The various courts have their roots in various principles, in various rights, the rights of the king, of the church, of feudal lords, of ancient communities. Lastly, we have been compelled to break off our discussion of the “land communities,” as we have called them, because we could not describe their organization without speaking at some length of courts, their constitution and competence. In the main the organization of these communities is justiciary; the shire has a court, the hundred a court, the manor a court, the borough a court, and in a large measure it is this that makes the shire, the hundred, the manor, the borough into a communitas. Thus in speaking of jurisdiction we shall naturally be led to describe the nature of these communities and to consider why some of them are, while others of them are not, attaining personality.

The principle that all temporal justice proceeds from the king.If we leave out of sight the courts of the church and concentrate our attention upon secular justice, we see at first sight a certain theoretical unity. Who, asks Bracton, ought to be judge in temporal causes? The king; no one else:—this is the meaning of the kingship, that the king should do justice to all. It is want of time and strength that authorizes and compels him to depute his duties to others. All temporal judges are his delegates.2 But Bracton was a royal justice, and, though he could easily show that he and his fellows derived their authority from the king, he does not attempt to prove, and could hardly have succeeded in proving, that, even in legal theory, all the jurisdictional powers of the feudal lords were delegated to them by the king. The law of his time is obliged to distinguish the “regalities” that are delegated from the powers that have another origin. Easier would it have been to show that as a mere matter of fact, despite all theories, despite the words of the Great Charter, the king’s court was mastering all the justice of the land, was subordinating to itself the feudal courts, was making them insignificant; but in so doing some startling contrasts between facts and theories would have been disclosed. Even the ancient courts of the shire and the hundred, courts which had no lords, courts which were presided over by royal officers, might have occasioned doubts:—could the suitors who made the judgments in these courts be called the king’s deputies? Bracton takes the easiest of courses, that of ignoring difficulties; he asserts the broad principle that all temporal jurisdiction is the king’s, and leaves us to discover how far either facts or legal theories can be brought under this principle. Still the assertion is important; the principle is not the mere speculation of a lawyer; it has been making itself good as against other principles which in part were older, in part were newer, making itself good against tribalism, communalism, feudalism.

Scheme of the courts.It is not, however, with a discussion of this dogma that all “ordinary,” i.e. non-delegated, jurisdiction is in the king3 that we can begin our investigation. We must look at the courts as they exist at the close of Henry III.’s reign, prefacing any further remarks by a summary statement, which may show the main outlines of the system, though it will neglect exceptional cases.

Division of the land.For the purposes of temporal justice England is divided into counties; the county is divided into hundreds; the hundred is divided into vills or townships.4 The county has a court, the hundred has a court, the vills or township as such, has no court; but the vill is an important unit in the administration of the law. Again, the vill is very often coincident with a manor and the manor has a court.

The county court. The county court meets once a month. It is presided over by a royal officer, the sheriff, who in some matters is assisted and checked by elective officers, the coroners. It is attended by suitors (sectatores), certain freeholders of the shire who are bound to attend it, to do suit (facere sectam) to it. They are the judges or doomsmen (iudicatores) of the court. It entertains some of the initial proceedings in criminal cases, but for the more part it is a civil, non-criminal court; it has an original jurisdiction in personal actions; real actions come to it when the feudal courts make default in justice; cases are sent down to it for trial by jury from the king’s court.

The hundred court.The hundred court meets once in three weeks. Normally its president should be the sheriff or a bailiff to whom the sheriff has committed the hundred; but many of the hundred courts are in private hands, and, when this is so, the lord’s steward presides. Freeholders of the hundred owe suit to it; these suitors are the dooms-men. Its competence seems much the same as that of the county court, though its powers are confined within narrower geographical limits; but real actions do not come to it, nor do we hear of actions being transmitted to it by the king’s court.

The sheriff’s turn.Twice a year the sheriff makes a tour or turn (turnus vicecomitis) through all the hundreds of the county. He holds each of the hundred courts and on these occasions many persons besides the ordinary suitors ought to be present. One of his objects is to hold a view of frankpledge (visus franciplegii), to see that all persons who ought to be, are in a tithing. For this purpose strict law might require that all such persons should be present, but often they seem to be sufficiently represented by the chief pledges (capitales plegii), the heads of their tithings, the tithingmen (decennarii). The curious organization of frankpledge is interlaced with the organization of townships and of manors, and the townships also have to be represented at the sheriff’s turn, each by its reeve and four of its men; for another object of the turn is that the sheriff may hold what we may call a “police court.” Presentments respecting crimes and minor offences are there made by the representatives of the townships and a jury of freeholders. The presentments of minor offences are disposed of on the spot; presentments of crimes merely serve to initiate proceedings against the accused who will be tried by the king’s justices. In his “turn” the sheriff acts as a judge with powers delegated from the king, and seemingly the suitors of the hundred have nothing to do with the judgments.

Seignorial courts.This we may say is the national system of local courts, and these courts for want of a better title we may call “communal”—thereby meaning that the court represents, though it is not elected by, a communitas. From them we must distinguish courts which in a wide sense of the word we might call feudal, but which it may be better to call seignorial; they are courts which have lords. These seignorial courts do not form a system comprising the whole land, but are dotted about sporadically. We must divide their powers into two classes. It would seem that the mere fact that a man had tenants gave him a right to hold a court of and for them.Feudal courts. A court authorized by this principle, which we may call the feudal principle, would have, at least over the freehold tenants, but a purely civil, that is, non-criminal, non-penal, jurisdiction; it would be competent for personal actions and also for real actions in which freehold lands were demanded; but the latter could only be begun by a royal writ (breve de recto tenendo) and might easily be removed from it by a similar mandate. Over unfree persons and unfree tenements its authority would be more ample; about the title to lands held in villeinage it would be able to say the last word, it could enforce the manorial custom and inflict minor punishments upon the villeins. Probably there was nothing in law to prevent a lord standing high in the feudal scale from holding a single court for all his tenants, and occasionally we read of the court of a wide-spread honour. Usually, however, the lord’s court is the court of a single manor and very frequently the manor is a single vill. The legal theory of later times distinguished between the court for freeholders and the court for customary tenants, calling the former a court baron, the latter a customary court; in the court baron, it is said, the freehold suitors (sectatores) were the judges; in the customary court the lord’s steward was the only judge; but it is very doubtful whether we can carry back this distinction into the age of which we are now speaking.

Franchise courts.Contrasted with the jurisdictional powers which a lord has merely because he is a lord with tenants, stand the franchises, liberties, royalties (libertates, regalia), powers and immunities which can only be possessed by those to whom the king has granted them. These franchises were of the most various orders, ranging from the powers of the palatine earl to those of the lord of a petty manor who had merely the view of frankpledge and the police jurisdiction that was incident to it. This last franchise was common, and the court in which the lord exercised it twice a year was acquiring the name of a leet (leta);Leets. it was a police court for the presentment of offences and for the punishment of minor offences; it was coordinate with the sheriff’s turn. Sometimes the lord had yet higher justice in his hands and might hang thieves taken in the act of theft; and thus gradually we ascend the scale of “royalties” which leads up to the palatine earldoms.

Borough courts.The cities and boroughs—vills, that is, which have attained a certain degree of organization and independence—have courts of their own. But of these municipal courts very little can be said in general terms; they are the outcome not of laws but of privileges.

The king’s court.Above all other courts rises the king’s court, which has gradually been dividing itself into three permanent courts, the King’s Bench, the Common Bench, the Exchequer. But, besides these permanent and central, it assumes temporary and local forms. Royal justices are sent into the counties under divers commissions; it may be to take the assizes (possessory actions) of the county, it may be to deliver the gaol, it may be as justices in eyre (in itinere) to hold all the pleas of the county, civil and criminal. In this last case the justices preside over a very full, solemn and prolonged meeting of the county court. In one way and another, now by the evocation of causes, now by the invention of new actions, the king’s courts are not merely reducing all other courts into subordination, but are making them petty courts, courts for the smaller affairs of the smaller folk.

Such being the main outlines, we may endeavour to fill in certain parts of the picture, avoiding much repetition of those matters which have been sufficiently discussed by historians of the English constitution.

§ 1.

The County

The county.Of the origin of the various counties we shall therefore say nothing;5 but there is one phenomenon which deserves a few words, namely, the “detached part of a county.” The map of England has never shown such striking examples of dissipated counties as those displayed by the map of Scotland; still the total number of cases in which a county has had outlying members is by no means small.6 It seems certain that many of these anomalies are due to very ancient causes; possibly in a few cases they take us back to the days of intertribal warfare; more probably they illustrate the connexion between property and jurisdiction. The lord of a hundred in one had an estate lying in another shire; he obliged all his men to attend his hundred court; such a proceeding may or may not have been warranted by some royal charter. Thus Domesday Book includes in Worcestershire islands which are surrounded by other counties. These islands belong to the hundred of Oswaldslaw, which belongs to the church of Worcester; but then these islands themselves belong, in a somewhat different sense, to the same church; the church is lord of the land, lord also of the hundredal jurisdiction. These “detached portions of counties” seem to bring before our eyes the struggle between national and private justice; their small significance in English history and their rapid descent into the category of petty nuisances show how that struggle was decided.7

The county officers.Of the county officers, again, we need say but little since constitutional history has taken them under her protection. The earl, except in the case of the palatine earldoms, has little to do with the government of the county which gives him his title; even before the beginning of legal memory he has, we may say, nothing to do with the county, save to be girt with its sword and to receive a third of its pleas, “the third penny of the county.”8 On the other hand, the sheriff, who, despite the fact that in Latin he is vicecomes and in French le viscount, has never been the vice-gerent of the earl, is the governor of the shire, the captain of its forces, the president of its court, a distinctively royal officer, appointed by the king, dismissible at a moment’s notice, strictly accountable to the Exchequer.9 A danger that sheriffdoms would become hereditary offices has been surmounted; at the end of the thirteenth century a danger (if such we think it) that sheriffdoms will become elective offices is being surmounted in spite of popular demands which gradually die out, and pious forgeries which long trouble the stream of legal history.10 Already before the beginning of the thirteenth century the sheriff is losing some of his powers; before the end we see the first germs of an institution which is destined to grow at his expense, the knights assigned to keep the peace of the county whose successors will be justices of the peace. But the sheriff of this century, still more the sheriff of the twelfth, is a great man with miscellaneous functions, military and financial, executive and judicial. Below him in rank and of more recent origin stand the coroners, or, to give them their full title, the keepers of the pleas of the crown (custodes placitorum coronae). Normally the county has four coroners who are elected by the county in the county court. Their origin is traced to an ordinance of 1194. The function implied by their title is that of keeping (custodire) as distinguished from that of holding (tenere) the pleas of the crown; they are not to hear and determine causes, but are to keep record of all that goes on in the county and concerns the administration of criminal justice, and more particularly must they guard the revenues which will come to the king if such justice be duly done.11

The county community.The “county” is not a mere stretch of land, a governmental district; it is an organized body of men; it is a communitas. We must stop short of saying that it is a corporation. The idea of a corporation is being evolved but slowly, and our shires never become corporations, so that in later days the term “county corporate” is employed to distinguish certain municipal boroughs, which have been endowed with the organization of counties, from the ordinary shires or “counties at large.” With such “counties corporate” we have not to deal; they belong to another age. But attending only to the “counties at large,” we notice that the law and the language of our period seem at first sight to treat them much as though they were corporations, and in this respect to draw no hard line between them and the chartered towns; the borough is a communitas, so is the county. It would even seem that under Edward I. the county of Devon had a common seal.12 This may have been an exceptional manifestation of unity; but John had granted to Cornwall and to Devonshire charters which in form differed little from those that he granted to boroughs:—if a grant of liberties might be made to the men of a town and their heirs, so also a grant of liberties, a grant of freedom from forestal exactions, a grant of the right to elect a sheriff, might be made to the men of a county and their heirs.13 But the county was apt to find its unity brought home to it in the form of liabilities rather than in the form of rights. The county was punished for the mistakes and misdoings of its assembly, the county court.14

The county court.In the language of the time this proposition that the county must answer for the acts and defaults of the county court appears as a truism, for it can only be expressed by saying that the county must answer for the acts and defaults of the county. County and county court are so thoroughly one that the same word stands for both. Rarely, if ever, do we meet with any such term as curia comitatus or curia de comitatu; the assembly is the comitatus, and every session of the assembly is a comitatus; for example, when a man is to be outlawed, a proclamation commanding him to present himself must be made in “five successive counties,” that is at five successive sessions of the county court. The actual assembly of men sitting at a certain time and place is the county; the permanent institution of which that particular assembly is, as it were, a fleeting representation, is the county; the county again is a tract of ground; the county is the whole body of persons who hold lands or reside within that tract, whether they participate in the doings of the assembly or no. And so with the word shire, which is maintaining its ground alongside county; if an abbot and his tenants are to be freed from the duty of attending the county court, it is quite enough to say that they are to be “quit of all shires” (quieti ab omnibus schiris). What we say of the county is true also of the hundred; our law Latin has no such term as “the court of the hundred”; the “hundred” is a district, a body of landholders and residents, a court, the session of a court.

Identity of county and county court.This absolute identity of the county and its court might be abundantly illustrated from the rolls which describe the proceedings of the justices in eyre. They come into the county; the whole county is convened to meet them; the county gives evidence, answers questions, records its customs, expresses its suspicions, is believed or disbelieved, is punished. Thus the justices visit Lincolnshire in 1202; the county gives one account of proceedings which took place in the county, the coroners’ rolls give another account; the testimony of the latter is treated as conclusive; the justices therefore are on the point of fining or amercing the county, but the county forestalls their judgment by offering a sum of £200 to be paid by the county.15 But not merely is the county thus visited in its home; it has often to appear at Westminster and answer touching its misdeeds, in particular the miscarriages of justice which have taken place in its court. A writ of false judgment (de falso iudicio) is brought against the county; thereby the sheriff is directed to “record” the proceedings that have taken place in the county, that is to cause those proceedings to be recited or recapitulated in the county court, and then to send four knights to bear the “record,” written or unwritten, to Westminster. The knights come there; they bear record, or rather the county bears record through their mouths, for what they say the county says. The complainant disputes this record and offers battle; the county maintains the truth of its record and offers to prove it by the body of a freeman of the county, who—so we fear—is no better than a hired champion.16 The county must pay for its false judgments.17

Constitution of the county court.The constitution of the body which thus represented, and indeed was, the county has been the theme of sharp controversies;18 but it has usually been discussed in its relation to the history of parliament. Two opinions have prevailed; some would make the county court an assembly of all the freeholders of the shire, others would make it an assembly of the tenants in chief. Both of these theories have the merit of being simple, but the demerit of being too simple to meet the facts disclosed by documents of the thirteenth century. Of the county court as it was at that time we will first speak, and, this done, we may be the better able to understand the sparse evidence that comes to us from an earlier age.19

Suit of court no right but a burden.And first we must notice that of any right of attending the county court we read no word. Of the duty of attending it we read much, and obviously this duty was irksome. Men seek for charters which shall absolve them from it. In the twelfth century immunities of this kind were frequently granted to religious houses and occasionally to laymen, and, at least in some cases, not merely the grantees themselves but all their tenants were delivered from the burden of doing suit to the communal courts.20 Precise calculations about such a matter are impossible; it must suffice therefore to say that before the beginning of Edward I.’s reign large tracts of England enjoyed a chartered liberty from this burden. To chartered we must add prescriptive liberties; to immunities that were legally valid we must add others that were actually enjoyed. Prelates and barons “subtracted the suit”—such was the phrase—due from themselves and their tenants whenever they saw a chance of doing this with impunity, and a long continued subtraction would ripen into a lawful franchise.

Suit of court is laborious.Nor is this cause for surprise. Let us try to picture to ourselves the position of some petty freeholder whose lands lie on the north coast of Devon. Once a month he must attend the county court; once a month, that is, he must toil to Exeter, and we cannot always allow him a horse. Even if the court gets through its business in one day, he will be away from home for a week at least and his journeyings and sojournings will be at his own cost. When he returns he will have to remember that the hundred court meets once in three weeks, the manorial court once in three weeks, and that he owes suit to both of them. Is it credible that all freeholders discharge these duties?

Sessions of the court.In Henry III.’s reign the county court is usually holden once a month. The third edition of Magna Carta, that of 1217, says that it is not to be holden oftener, but adds that in counties in which it has not sat so frequently the old rule is to prevail.21 The Lincolnshire court met every forty days;22 but monthly sessions seem to have been usual elsewhere; in 1219 the county of Surrey was amerced for holding more frequent sessions.23 As to the hundred court, an ordinance of 1234 declared that it was to meet but once in three weeks.24 We thus learn that before 1217 the county courts had sometimes been holden at intervals of less than a month, while the ordinance of 1234 expressly tells us that in Henry II.’s day the hundred courts and baronial courts had sat once a fortnight. It is difficult to make these tidings fit into a consistent story with our earlier evidence. A law of Edward the Elder had said in general terms that every reeve is to have a moot in every four weeks.25 Edgar commanded that the hundreds were to meet once a month;26 elsewhere he adds that the burgh-moot shall be held thrice a year, the shire-moot twice.27 This last rule is repeated by Cnut with the qualification that the moots are to be held oftener if need be.28 Henry I. ordains that the counties and hundreds are to sit as they did in the Confessor’s day and not otherwise; if more frequent sessions are required for any royal business they will be summoned.29 An exposition of this ordinance, which seems to be the work of a contemporary, declares it to mean that the shire-moot and burgh-moot are to be holden twice, the hundred-moot twelve times a year, seven days’ notice being given unless royal business demands a departure from this rule. To these assemblies are to come all the lords of lands. Twice a year, however, a specially full hundred court (the sheriff’s turn of later days) is to be holden, at which all the freemen (liberi) are to be present, whether they be householders or dependants, in order that the tithings may be examined and found full.30 To this exposition we must return; for the moment we have only to notice that the county court is to all seeming held but twice in the year. How to reconcile this with the state of things existing a century later and presupposed by the Charter of 1217 is a difficult question. Has the burden of suit been multiplied sixfold?

Full courts and intermediate courts.Now that a court with much judicial business will sit but twice a year we can hardly believe. Medieval procedure required that a suit should come before the court on many occasions before a judgment could be given. The parties must appear in person, not by attorney; roads are bad; simple justice requires that a defendant should have ample opportunity of appearing before he is treated as contumacious.31 According to the law of the thirteenth century no man could be outlawed until he was quinto exactus, that is until his appearance had been demanded in five successive county courts. If we suppose that the court sat but once in six months, then the process of outlawry, which we may well suppose to be very ancient, could not be accomplished in less than two years and a half.32 We can hardly avoid one of two suppositions and perhaps both should be combined, namely, that in the days before the Conquest the shire-moot had done little of the ordinary judicial work, this being usually disposed of by the hundred courts, and secondly that between the solemn half-yearly meetings of the county court, at which all the suitors were required to be present, there intervened less solemn meetings attended only by a smaller group of suitors before whom the formal and preliminary steps in litigation, the “interlocutory proceedings” as we should call them, could be taken. This latter theory is supported by numerous entries upon the Hundred Rolls. Just as there are many men who owe suit to the two half-yearly meetings of the hundred court which are known as the sheriff’s turns but owe no suit to the intervening sessions, so, at least in certain shires, the suitors of the county court fall into two classes; many are bound to go month by month, while others are bound to go but twice a year; they go to two meetings which are distinguished as “the great counties” or “the general counties.”33 The suitors of the manorial courts fall into two similar classes; some must appear every three weeks, others twice a year.34

The suitors.But whichever of these two classes we examine, we cannot say that it is constituted either by all the freeholders of the shire or merely by the tenants in chief. A more complex idea must be introduced, but one which will not be unfamiliar to us after what we have seen of scutage. Suit to the county and hundred is a burden incumbent on land. It has taken root in particular acres. Feoffments and private bargains cannot shift that burden from the land, nor will they increase the number of suits that are due; but, as between the various persons interested in that land, they can and will determine who is to do the suit. We will suppose that A holds a tract of land for which he owes a suit to the county; he enfeoffs B, C and D with parcels of that land. One suit and no more is due. Probably as regards the king and his sheriff all four persons are liable for that suit; all or any of them can be attacked if the suit be not done; but, as between themselves, the terms of the feoffments decide which of them ought to do it.

Suit is a “real” burden.We may be pardoned for spending some little time over this doctrine, for it illustrates the complicated texture of medieval society and the large liberty that men enjoyed of regulating by private bargains what we might deem matters of public law.

And in the first place we notice that suit to the communal courts is often spoken of as the whole or part of the service by which a man holds his land; it is mentioned in the same breath with suit to the lord’s court, rent and scutage.35 A man may hold his land by the service of finding one doomsman for the hundred court, or may hold it for 9 s. 2½ d. and half a doomsman.36 Then again we find such cases as the following. In the vill of Bottisham the Earl of Gloucester has some forty freehold tenants; two of them do suit to the hundred and county courts for the earl and the whole township.37 The Abbot of Ramsey has a manor at Burwell: the jurors do not know that he does any service for it except two suits to every county court; but these two are actually done by two tenants of his; J. A. holds a hide and does one suit, B. B. holds ninety acres and does the other. Any number of similar instances might be found. As regards suit to the hundred court, we have yet more explicit tidings. The opinion of the jurors from whose verdicts the Hundred Rolls were compiled was distinctly this, that suit was a burden on particular tenements, a burden not to be increased by any subdivision of those tenements. They complain that the Earl of Surrey who holds the hundred of Gallow has not observed this rule. There was, for instance, a tenement in South Creake containing 100 acres; it owed a single suit; it has been divided into 40 tenements and 40 suits are exacted.38 And so, again, if the tenement becomes partible among co-heiresses, the number of suits, at least in the jurors’ opinion, should not be increased; the burden should lie on the share of the eldest sister.39

“Reality” of suit.Once more, the king sets the law in motion against someone who has “subtracted his suit.” Now were this duty incumbent on all freeholders, nothing would be simpler than the king’s case; he would merely have to say “You are a freeholder of the county and you are not doing suit.” But the king’s advocates do not adopt this easy course; they make it a matter of seisin. The king demands a suit because he has, or his ancestors have, been seised of a suit done by the defendant or his predecessors in title. King Edward I. demands a suit to the hundred court from the Earl of Norfolk and relies on the seisin of King Henry III. The earl comes and denies the king’s right and the seisin of King Henry. A jury gives the earl a verdict and he goes quit.40 If the mere fact that the earl was a freeholder would have made him liable to do suit, the king’s counsel sadly mismanaged their case. This is but one example from among many.

The vill as a suit-owing unit.Now all this seems inconsistent with the notion that a freeholder as such owes suit. Somehow or another the court, or the king—for it is in the king’s name that the duty must be enforced— has become entitled to a fixed number of suits, each of which is incumbent on a certain tract of land. Of the size and nature of these suit-owing tracts our evidence only permits us to say that there is no uniformity, but that often a whole vill or manor is represented by a single suitor. It would seem that even “the great counties” or “general counties” were not very large assemblies, while the court which met once a month was, at least in some shires, much smaller. Possibly different opinions as to the nature of the duty prevailed in different counties. In Yorkshire, for example, where suits exigible from all freeholders would have been an intolerable burden, the usual attendants at the county court seem to be the stewards of the tenants in chief.41 But in general the assembly was formed out of miscellaneous elements; there were tenants by military service and socage tenants, tenants in chief of the king and tenants of mesne lords, great men and small men. Many of them were knights, the predecessors of the country gentlemen who for centuries to come will do justice and manage the county business because they like the work; but there were also yeomen, holders of but a virgate or so apiece, who went there because they were bound to go by their tenure; they pay little or no rent because they discharge a duty which otherwise would fall upon their lords.

Inconsistent theories of suit.At the same time we must not credit the men of the thirteenth century with a thoroughly consistent doctrine as to the “real” character of the duty.42 There is a conflict of interests and therefore a clash of theories. In 1258, when the Barons’ War was at hand, there was an outcry about suit of court; new-fangled suits are exacted as well to counties and hundreds as to franchise courts.43 The provision made in answer to this outcry spoke only of suits due to the courts of the lords and does not seem to touch the county courts or such of the hundred courts as were not in private hands.44 Among other points it decides that, when a tenement which owes a suit descends to co-heirs or is divided by feoffment, no more than one suit is due. This may be the decision of a question that had been open, and we find that the converse case had been debatable. If a division of the tenement does not increase the number of suits, the union of several tenements, we might argue, ought not to decrease that number. But we find it otherwise decided, “for it is not consonant to law that when two inheritances descend to one heir, or when one person acquires divers tenements, more suits than one should be due for these several inheritances or tenements to one and the same court.”45 “Reality” and “personality,” if we may so speak, are contending for the mastery, and the result which emerges after the days of Lewes and Evesham seems favourable to the freeholders. When a tenement is divided, the suit is considered as annexed to the land; when two tenements meet, it is deemed a personal duty. It is not impossible that early in the fourteenth century the attempt to compel reluctant suitors to attend the county court was already being abandoned. In the other local courts it was usual to receive and enrol the “essoins,” that is the excuses for non-attendance, of the suitors who did not appear. But this, we are told, was not done in the county courts, whence we may infer that those who did not attend were not at pains to excuse themselves.46 There is much in the later history of parliamentary elections to make us believe that little trouble was taken to enforce the appearance of those who were bound to come, and that no trouble was taken to exclude the presence of others.47

The court in its fullest form.Besides the shape that it took once in every four weeks and the fuller shape that it took once in every six months, the county court may have taken a yet ampler shape upon great occasions, in particular when it was summoned to meet the justices in eyre, an event which, according to the opinion of the suitors of Henry III.’s day, was not to occur more than once in seven years and which as a matter of fact did not occur much oftener. That the common immunity “from shires and hundreds” did not discharge its possessors from having to appear at these grand meetings is clear. It may even be argued that on these rare occasions all the freeholders of the county had to present themselves. But the writs which summon these meetings hardly prove this;48 we find some traces of persons bound by tenure to discharge the suit due from vills and manors even when that suit is to be done before the justices in eyre,49 and the lists of persons who either sent excuses for not coming or were amerced for being absent without excuse do not point to assemblages so large as those which must have come together had every freeholder of the shire been bound to attend them.

The communal courts in earlier times. From a time remoter than the thirteenth century we have little evidence; indeed the passage in the Leges Henrici to which reference has already been made50 seems to tell us all that we can learn. It gives us a list of the persons who are to attend the shire-moot— episcopi, comites, vicedomini, vicarii, centenarii, aldermanni, praefecti, praepositi, barones, vavassores, tungrevii, et ceteri terrarum domini. Of some of the titles here mentioned an explanation is to be sought rather in France than in England; we may doubt whether to the writer’s mind they conveyed any precise meaning, whether he meant much more than that all persons of distinction, all the great, ought to come.51 But who are the terrarum domini? That they are not merely the tenants in chief may fairly be argued from the fact that vavassors as well as barons are among them, though we cannot be certain that either of a baron or of a vavassor any exact definition could have been given.52 Whether the term “lords of lands” or “owners of lands” was intended to comprise the humbler freeholders (for example, the considerable class of persons who appear in Domesday Book as liberi homines), may be doubtful; dominus is a flexible word; but we have some proof that in Henry I.’s time “small men,” minuti homines, owed suit to the county court and served as doomsmen.53 Altogether the words of our text are vague; they point to no one clearly established rule, but rather to a struggle between various principles.54

A struggle between various principles.One principle might be found in personal rank: the rank of a baron, knight, vavassor, thegn. Another in the characters of the various tenures: military and non-military, serjeanty and socage. A third in the grades of tenure, tenancy in chief of the king being contrasted with mesne tenures. Probably a fourth was already being found in what we take leave to call mere “realism” and private bargainings; suit is becoming a debt owed by manors and acres, and those who represent the burdened land may adjust the burden as seems to them best. If a lord attends, we are told, he thereby discharges all the land that he holds in demesne.55 Suppose him to make a feoffment of part of this land; why should a second suit become due? The court is entitled only to such suits as it has been seised of in the past.

Suit by attorney.The privilege of doing his suit by attorney to the courts of the county, the trithing, the hundred and to the seignorial courts was conceded to every freeman by the Statute of Merton in 1236.56 This general concession we may treat as new, though for a long time past the greater men were privileged to send their stewards or a deputation of villagers from their villages,57 and sometimes the tenant who was bound by his tenure to discharge the suit due from the land was spoken of as the enfeoffed attorney or attorned feoffee of his lord.58 As to the deputation of villagers, we read nothing of this in documents later than the Leges Henrici, though, as will be seen hereafter, the reeve and four men of the township have to attend the sheriff’s turn and the coroner’s inquests, and they must go to the county court if they have a crime to present. Nor do the Leges Henrici contemplate their appearance as normal:—if neither the lord nor his steward can be present, then the reeve, priest and four men may appear and acquit the vill of its suit. Still this draws our attention to yet another principle that has been at work: the county court represents not merely all the lands, but also all the vills of the shire, and it is quite in conformity with this that in the thirteenth century the suit-owing unit of land should frequently be a vill.59

Representative character of county court.Perhaps it is this heterogeneous character of the county and hundred courts which makes it possible for men to regard them as thoroughly representative assemblies and to speak of them as being the counties and hundreds. They do not represent one well-defined class or condition of men, and they do represent all the lands of the shire, franchises excepted. Every landholder who holds his land freely may be deemed to be present there, if not in person then by someone who represents his land, it may be by his lord, or it may be by his tenant. At any rate the whole shire, franchises excepted, seems responsible for the misdoings and defaults of its court, even for those which take place in the thinly attended meetings that are holden month by month.

The suitors as doomsmen. The suitors were the doomsmen of the court. The evidence that they bore this English title is indeed slight, but some such term we must use.60 Occasionally in Latin documents they are spoken of as iudices, more commonly as iudicatores;61iusticiarii they are not; iudicatores is a word which serves to distinguish them from ecclesiastical iudices and royal iusticiarii.62 But whatever may have been their English title, their function is put before us as that of “making the judgments.” If for a moment we adopt German terms, we can say that they are die Urteilfinder, while the sheriff or (as the case may be) the bailiff of the hundred, or the steward of the franchise is der Richter. He is, we may say, the presiding magistrate; he summons the court, he “holds the court,” he “holds the pleas,” he regulates the whole procedure, he issues the mandates; but he does not make the judgments: when the time for a judgment has come he demands it from the suitors. During the Norman period this seems the constitution of all courts, high and low. When there is a trial in the king’s court, the king demands a judgment from the assembled prelates and barons.63 But the gradual intrusion of the sworn inquest, of the nascent trial by jury, soon begins to transfigure those courts in which the king presides by himself or his commissioners; justices and jurors begin to take the place of president and doomsmen, and this process is so rapid that we have now-a-days some difficulty in describing the ancient courts without using foreign or archaic terms. Still the communal courts preserve their ancient form. Under Edward I. Hengham says that if a false judgment is given in the county court, the sheriff ought not to be punished: “the county, that is, the commune of the county” is to be punished; therefore, he adds, let the suitors beware. Perhaps in his day some explanation of this state of things was thought necessary, at any rate he gives one:—sheriffs might err from partiality or from ignorance; besides sheriffs are sometimes men of little substance and would be unable to pay an amercement if convicted of a false judgment. Therefore, says he, it is ordained that the judgment be given by the whole county.64

A session of the county court.That even in the thirteenth century the participation of the suitors in the judgments was no mere formality we may learn from records which give us valuable glimpses of the county courts and their procedure. In 1226 there was a quarrel between the sheriff of Lincolnshire and the suitors. The version of the story favourable to the sheriff is this:—One day he held pleas in the county court from early morn to vespertide and then, since many pleas remained unheard for lack of daylight, he told the “stewards and knights and others of the county” that they must come again next morning, hear the plaints and make the judgments. On the following morning the sheriff took his seat; the knights and stewards remained outside the house; he bade them come in, hear the plaints and make the judgments. They refused, and even those who had entered the house left it saying that the county court should only be holden for one day at a time. Therefore the sheriff, since he alone could not make the judgments, adjourned the plaintiffs and defendants to the wapentake courts; seven score cases were left unheard. Then he held a court for the ten wapentakes of Ancaster, to which came many, both knights and others; among them Theobald Hauteyn and Hugh of Humby; and, the pleadings having been heard, the sheriff told the knights to make the judgments. Then Theobald arose and said that they ought not to make the judgments there nor elsewhere outside the county court, for he had lately been in the king’s court talking with the Archbishop and the Earl of Chester and other magnates and he was certain that before three weeks were out they would have the king’s writ freeing them from these exactions. Thereupon the sheriff answered that for all this he should not stay his hand from doing justice to the poor until he received some command to the contrary; and once more he bade the knights and others make the judgments. They then asked leave to talk the matter over by themselves and went out. While they were in conference, Theobald and Hugh came to them, and protested that the sheriff was infringing Magna Carta and the franchises of the magnates, and advised them to make no judgments. Then they entered the house, and Theobald as their spokesman said that they were not bound to make any judgments, and abused the sheriff and demanded his warrant for holding pleas in the wapentake. The sheriff answered that he thought that he as sheriff and bailiff of the king had warrant enough, and then departed, his business undone. Then arose Thomas Fitz Simon, the steward of John Marshall, and said that Hugh was wrong in demanding the sheriff’s warrant and that it was rather for Hugh to show why the sheriff should not hold pleas. And then Thomas deemed a doom (et unum iudicium fecit idem Thomas). “That’s your doom,” was the scornful answer; “we shall have your lord here presently and will tell him how you behave yourself in this county.”65

The suitors and the dooms.We have told this curious story at length because it illustrates several points, the constitution of the court by “the stewards, knights and others,” the amount of business that it has to do, such that after a long day’s work a hundred and forty causes must stand adjourned, the unwillingness of the suitors to do anything that may increase the burden of the suit, the position of the sheriff as the presiding officer, his incompetence to make judgments. Over and over again the function of the suitors is defined as that of making judgments. And it is much rather as “judges of law” than as “judges of fact”—if into such a context we may introduce these modern terms—that the suitors are expected to be active. In the seventeenth century John Smyth could boast of the good justice done by the free suitors of the hundred of Berkeley where “there had not been in any age any trials by jury.”66 A collection of precedents designed for the use of the stewards of the manorial courts has come down to us. In most of the hypothetical cases all is supposed to go smoothly; the plaintiff pleads, the defendant pleads, and then the steward as a matter of course gives the judgment of the court, to the effect that there must be an inquest or that the defendant is to bring compurgators to prove his case. We may indeed read through almost the whole tract without discovering that the steward has assessors. But in one case the defendant does not deny the plaintiff’s plaint with adequate particularity. Thereupon the steward bids the parties retire and addresses the doomsmen:—“Fair sirs, ye who are of this court, how seemeth it to you that the defendant hath defended this?” A spokesman answers that the defence was insufficient. The parties are then recalled and the steward informs them of the judgment of the court.67 Probably in a manorial court the steward would often have his own way; but a sheriff might find that some of the suitors of the county knew more law than he did, and our story from Lincolnshire will show that they might have opinions of their own about the meaning of Magna Carta. To give one more example:—In Edward I.’s day the palatinate of Chester had fallen into the king’s hand; the justiciar of Chester was the king’s officer. On one occasion he was presiding in the palatine court and Ralph Hengham, one of the royal justices of England, had been sent thither to act as his assessor. An assize of last presentation came before them; certain usual words were missing from the writ. Thereupon arose one John of Whetenhall, who was sitting among the doomsmen of the county, and asserted that the Earl of Chester had delivered to them a register of original writs and that the writ in the present case conformed to that register. The doomsmen then demanded an adjournment until the morrow, and then one of them pronounced the judgment. Hengham declared that the judgment was against law and departed. Thus, even in the presence of a royal justice, the doomsmen of Chester decided questions of law.68 On other occasions we find these “doomsmen and suitors” asserting that before a judgment of their court is evoked to the king’s court, all the barons and their stewards and all the doomsmen of the county must be summoned to decide whether they will stand by the judgment or amend it.69

Powers of a majority.We learn from one passage in the Leges Henrici that if the judges disagreed the opinion of the majority prevailed;70 in another passage we are told that the opinion which is to prevail is that of the better men and that which is most acceptable to the justice. The latter text, though not unambiguous, seems to mean that, if the dooms-men differ about the doom, the sheriff or other president of the court may adopt the ruling that he thinks best, but should have regard to the rank and repute of those who have offered their opinions.71 A case would not necessarily be heard by the whole body of suitors. In the first place, some might be rejected from the judgment-seat for divers reasons, in particular as not being the “peers” of the parties; for it is in this context that we first hear the phrase that became famous at a later time, iudicium parium suorum. Every one is to be judged by his peers and by men of the same district; there are to be no “foreign judgments,” that is to say, judgments by strangers; the great man is not to perish by the judgment of those of lower degree.72 How far this dangerously aristocratic principle was carried we cannot say; to all appearance the old scheme of estates of men, which recognized such equations as 1 thegn = 6 ceorls, gave way before feudal influences, while those influences were not powerful enough to substitute in its stead a classification based on the various kinds or the various grades of tenure. The small are not to judge the great:—no more accurate principle can be stated. In the second place, it seems to have been a common practice, at least in certain districts, for the parties to elect from among the suitors a few judges to decide their dispute; both parties might agree in choosing the same men, or the one party would choose half of the whole number, the other party the other half.73

The buzones.We may well suppose that the ordinary business of the court was transacted by a small group of active men. Of such a group we hear something, and the members of it seem to bear the strange name busones or buzones. Bracton tells us that, when the king’s justices in eyre come into the county and have proclaimed the object of their mission, they shall go apart, taking with them some four or six or more of the great folk of the county, who are called the busones of the county and whose opinions carry weight with the rest, and shall have a colloquy with them.74 To suggest that in the place of this curious word we should read barones is easy; but the same word occurs elsewhere. In John’s reign the county of Gloucester was amerced for a false judgment; the roll which records this adds, “And let the knights of the county who are wont to take part in false judgments and are buzones iudiciorum, be arrested.”75 Neither passage would suggest that this title was official, or more than a cant name for the active doomsmen of the shire-moot; but the context into which Bracton introduces it may serve to show how the way was paved for the justices of the peace of a later time.

Business of the court.To what we have said above concerning the competence of this court little can here be added. Seemingly its jurisdiction in actions for land had become of small importance in the course of the thirteenth century. It formed a stepping-stone between the feudal court and the royal court, and he who brought his case thus far meant to carry it further. As regards personal actions, in Edward I.’s day its competence was restricted within a limit of forty shillings.76 When, how and why this limit was imposed is a difficult question. Possibly we may trace it to an exposition which the king’s justices had given of the Statute of Gloucester (1278), though this statute on the face of it seems to favour the local tribunals, for it merely says that none shall have a writ of trespass in the king’s court unless he will affirm that the goods taken away were worth forty shillings at the least.77 But the sum of forty shillings is mentioned at a much earlier time. In the Irish Register of Writs of John’s day a writ directing the sheriff to hold a plea of debt (in technical language “a Justicies for debt”) is given with the remark that if the debt be less than forty shillings this writ can be obtained without gift, that is without payment to the king, while if the debt is greater the plaintiff must find security to pay the king a third of the sum that he recovers.78 In a treatise of somewhat later date79 we find the same rule, but the limiting sum has been raised from forty shillings to thirty marks. In general a plaintiff who went to the county court to recover a debt did not want any writ at all, though the royal missive might be useful, since it would urge a dilatory and not impartial sheriff to do his duty. Perhaps some combination between a rule about the fees to be paid for writs and the rule laid down by the Statute of Gloucester produced that limitation of the competence of our local courts which in the end was their ruin. However, in Edward I.’s day ruin was a long way off; forty shillings was as yet a good round sum.

Outlawry in the county court.One act of jurisdiction, one supreme and solemn act, could be performed only in the county courts and in the folk-moot of London, the act of outlawry. Even the king’s court did not perform it. The king’s justices could order that a man should be “exacted,” that is, that proclamation should be made bidding him come in to the king’s peace, and could further order that in case of his not appearing he should be outlawed; but the ceremony of exaction and outlawry could take place only in a shire-moot or folk-moot. And so it is even in our own day, or rather so it would be, had not outlawry become a mere name.80

Governmental functions.In the main the county court is a court of law; but in the middle ages jurisdiction is never very clearly separated from government, and, as has been sufficiently shown elsewhere,81 the assembly of the shire sometimes has fiscal, military and administrative business before it. It can even treat with the king about the grant of a tax, and ultimately, as all know, it sends chosen knights to represent it in the parliaments. Still we should have but little warrant for calling it a governmental assembly. It can declare the custom of the county, but we do not often hear of its issuing ordinances or by-laws, though, with the sanction of the justices in eyre, the county of Northumberland, all the freemen thereof unanimously consenting, institutes a close time for the precious salmon.82 Nor must we endow this assembly with any inherent power of imposing taxes, though the liability of the county for the repair of certain bridges appears at an early time and may occasionally have necessitated a vote and resolution. Thus in John’s reign the Abbot of Lilleshall says that the sheriff and other magnates provided that he should build a bridge at Atcham and in return might take certain tolls.83 Still in Edward II.’s reign the communities of Shropshire and Cheshire go to the king for leave to levy a pavage for the improvement of a ford,84 and, as we shall see below, even the boroughs did not at this time aspire to much liberty of self-taxation.

Place of session.Hengham speaks as though the county court was sometimes held in the open air and in out-of-the-way places.85 Usually it was held in the county town; but in Edward II.’s day the sheriff of Sussex had been holding it at divers places, and to fix it at Chichester required a royal ordinance.86 In Henry II.’s reign the county court of Derbyshire was held at Nottingham until the king established it at Derby on the petition of the Derbyshire folk.87 Some moots may still have assembled in the open air; the Lincolnshire court sat in doors;88 Earl Edmund built a great hall at Lostwithiel for the county court of Cornwall;89 but we still hear of “a green place” in which the court of Essex was holden.90 Apparently in old times the dooms-men of the court sat upon four benches arranged in a square; what was done in court was done “within the four benches.”91

§ 2.

The Hundred

The hundred as a district.The county is divided into hundreds or into wapentakes or into wards, the term “wapentake” appearing in Yorkshire, Lincolnshire, Derbyshire, Nottinghamshire, the term “ward” in the northern-most counties. It is well known that the size of the hundred varies very greatly, but that it varies according to a certain general rule. “Thus Kent and Sussex at the time when Domesday Book was compiled, each contained more than sixty hundreds, as they do at present; and in the counties which composed the ancient kingdom of Wessex, the hundreds are almost as numerous, while the irregularity of size, and the scattered confusion of the component parts of these ancient hundreds must have been the result of usurpation or of improvident grants . . . On the contrary, Norfolk and Suffolk (the East-Anglian counties) maintain a regularity of division still applicable in many instances to the administration of justice. In the midland counties the hundreds increase in size, but are not deficient in regularity. In Lancashire (a county of greater extent than any of the Wessex counties) there are no more than six hundreds—in Cheshire, seven:—and upon the whole so irregular is this distribution of territory, that while some of the southern hundreds do not exceed two square miles . . . the hundreds of Lancashire average at three hundred square miles in area.”92 If we consider not acreage but a more significant fact, namely, the number of vills in the hundred, we are brought to similar results. A Kentish hundred will often contain but two, three or four vills; there seem to be instances in which vill and hundred are coterminous.93 A “detached part” of a hundred is commoner than a “detached part” of a county; some hundreds have from a remote time been extremely discrete.

The hundred court.The hundred had a court. According to the Leges Henrici it was held twelve times a year;94 but in 1234, an ordinance states that in Henry II.’s time it was held at fortnightly intervals and declares that for the future it is to sit but once in every three weeks.95 It seems to have been supplied with suitors in the same way that the county court was supplied:—the duty of suit had taken root in the soil. In some cases the number of suitors was small. We read that in the wapentake of Bingham in Nottinghamshire there were but twelve persons who owed suit; each of them had been enfeoffed to do the suit due from a barony; the baronies of Tutbury, Peverel, Lovetot, Paynel, Dover, Richmond, Gaunt and Byron were represented each by a suitor, the baronies of Basset and Deyncourt by two suitors apiece.96 On the other hand so late as the reign of Charles I. the court of the hundred of Berkeley in Gloucestershire had four hundred suitors, of whom “seldom or never less than twenty and commonly many more attended.”97 It was a court for civil, that is non-criminal, causes; but, unlike the county court, it did not hold plea of lands; thus the actions which came before it were chiefly actions of debt and trespass. It does not seem to have been in any accurate sense inferior to the county court: that is to say, no appeal or complaint for default of justice could be taken from the one to the other.

Hundreds in the king’s hands.Those hundreds which had not fallen into other hands were “in the king’s hands.” The sheriff seems usually to have let them at farm to bailiffs; the bailiff presided in the court and after paying his rent made what gain he could from fees and amercements. Complaints are frequent that the sheriffs have raised the old rents; the bailiffs who have to pay advanced rents indemnify themselves by new exactions. In Sussex each hundred seems to have had a beadle, that is a summoner, who was called an alderman. We are told in Edward I.’s day that in time past these officers had been elected by those who paid the hundred-scot; but now, at least in one case, they buy their offices and make a profit by extortion.98 We hear further that such of the tenants of the barony of L’Aigle as owed suit to the hundred court paid the sheriff £9. 17 s. 6 d. a year in order that their suit to the county court might be done for them by the aldermen of the hundreds, and this new hint as to the actual composition of a shire-moot is welcome.99

Hundreds in private hands.But many of the hundreds had been granted to private persons. From 1255 we have an account of the thirty-nine hundreds of Wiltshire; sixteen and a half were in the king’s hand; twenty-two and a half were in the hands of others. What is more, in thirteen cases the lord of the hundred claimed to exclude the sheriff from holding a turn; he himself had the view of frankpledge throughout the hundred save where this was in the hands of the lords of manors.100 In 1320 the men of Devon said that almost all the hundreds of their shire belonged to the magnates.101 In this sense a “hundred” is an “incorporeal thing”; the lord of a hundred need not be lord or tenant of a single acre of land within the precinct.

Duties of the hundred.The hundred, like the county, was conceived to be fully represented by its court. If the court gave a false judgment, the hundred had to pay for it. And the hundred, like the county, had communal duties and could be fined for neglect of them. The chief example is the famous murder fine. If a person was slain and the slayer was not produced, then the hundred was fined, unless the kinsfolk of the dead man would come and “present his Englishry,” that is to say, prove him to be an Englishman by birth. The Statute of Winchester (1285) made the hundred liable for robberies committed within its borders in case the robbers were not produced.102 On the other hand, we do not in this age hear of the hundred as having any communal property, though a pasture that was “common” to a whole hundred may still have existed.103

The sheriff’s turn.Twice a year the sheriff makes a progress or “turn” through the hundreds, or rather through those which are not in the hands of such lords as have the right to exclude him. The Leges Henrici tell us how twice a year a specially full hundred court is to be held for the purpose of seeing that the tithings are full and that all men are in frankpledge.104 Henry II. by the Assize of Clarendon ordered the sheriffs to inquire of robbers, murderers and thieves by the oath of twelve men of each hundred and of four men of each vill, and at the same time he directed that the sheriffs should hold the view of frankpledge as well within the franchises of the magnates as without. These purposes are answered by the sheriff’s “turn” (the word occurs in the charter of 1217)105 —the object of the turn is “quod pax nostra teneatur et quod tethinga integra sit.” The procedure of the turn at the end of the thirteenth century was this:—Each vill in the hundred was represented by its reeve and four men, or each tithing was represented by its tithing-man, or perhaps in some places both systems of representation prevailed concurrently:—the representatives would for the more part be villani. Then besides them a jury of freeholders was wanted. It is probable that in strict theory every freeholder should have been present, but twelve there had to be. Then the sheriff set before the representatives of the vills or tithings a set of inquiries known as “the articles of the view.” The list seems to have varied from place to place and time to time. Its object was threefold, (1) to see that the system of frankpledge (of which we shall speak below) was in proper working order, (2) to obtain accusations against those suspected of grave crimes, in order that the sheriff might capture them and keep them imprisoned or on bail until the king’s justices should come to hold an eyre or deliver the gaol (for by this time the sheriff had lost the power of holding pleas of the crown), and (3) to obtain accusations against those suspected of minor offences in order that they might be amerced by the sheriff. With this last object in sight the articles specified many petty misdeeds: hue and cry wrongfully raised, watercourses impeded, roads diverted, brawls and affrays, breaches of the assize of bread and beer, and so forth. The representatives of the vills or tithings in answer to these articles made presentments which were laid before the twelve freeholders, who had power to reject or supply omissions in them. Upon the presentments thus endorsed by the freeholders, the sheriff took action, issuing orders for the arrest of those charged with felony and declaring those charged with pettier misdeeds to be in the king’s mercy. He seems to have been the only judge in this court,106 but the amercements were “affeered”— that is to say, the amount to be paid by each person who had fallen into the king’s mercy was fixed—by two or more of the suitors who were sworn to do the work justly.107

§ 3.

The Vill and The Township

England mapped out into vills.It seems nearly true, though not quite true, to say that the whole of England is divided into vills: nearly true, for it is commonly assumed that every spot of land must lie within some vill: not quite true, for it may be that there are spots so highly endowed with immunities, so much outside the ordinary rules of police law and fiscal law, that they are not accounted to form part of any vill, while in all probability there are some tracts, which are deemed to belong to two, three, or more vills in common. Even a city or borough is a vill, or perhaps in some cases a group of vills.108

Vill and parish. Of the varying size of the vills it is needless to speak, for in general the vill of the thirteenth century is the “civil parish” of the nineteenth. The parish is originally a purely ecclesiastical district, and during the middle ages it is no unit in the geography of our temporal law, though from time to time the secular courts must notice it when disputes arise about tithes and the like.109 In southern England the parish normally coincided with the vill; in the northern counties the parishes were large; often a parish consisted of a group of vills. In our modern law the parish has, at least in name, supplanted the vill or township; but this is due to causes which did not come into play until the Tudor time when the rate for the relief of the poor was imposed. The law then began to enforce a duty which had theretofore been enforced by religion and naturally it adopted for this purpose the geography of the church. Then in course of time other rates were imposed, and the poor’s rate was taken as their model. Thus the parish became the important district for most of the purposes of local government. But this victory of the parish over the township was hardly more than a change of name. The townships of northern England insisted that, albeit they were not parishes, they ought to be treated as units in the poor law system, as parishes for the purposes of the poor law, and then by force of statutory interpretations the old vill got a new name and appeared as the “civil parish.”110

Discrete vills.As the county or hundred may be discrete, so also the vill may be discrete and apparently some of our vills were composed of scattered fragments. In certain parts of Gloucestershire, for example, until scientific frontiers were established by a modern commission, a parish consisted of a large number of small strips of land lying intermingled with the lands of other parishes, in such a way as forcibly to suggest that at some remote time some one agricultural community split up into several communities, each of which was given a share of land of every quality.111 A detached portion of a parish lying ten miles away from the main body is by no means an unknown phenomenon, while of certain parts of the north of England we are told that the townships are intermixed “so that there is the most complete jumble which it is possible to conceive.”112 The “extra-parochial place” finds its explanation in the history of the church; in many cases that explanation need go back no further than some papal bull of recent date; but when, lying outside any known ecclesiastical division we find a single acre known as No Man’s Land, and then another small patch bearing the same name which has but two inhabitants, and then a No Man’s Heath of nine acres,113 we shall be strongly tempted to believe that as there were extra-parochial places, so also (if we may coin a new term) there were “extra-villar” places, odds and ends which no township would acknowledge as its own. So also in our own day some large moors in the north of England are, or have lately been, deemed to be territory common to several different townships.114

Hamlets.Besides vills there were hamlets; but the hamlet seems always to have lain within the boundaries of a vill, and, though the law might for some purposes take note of its existence,115 still it seems to have been but rarely treated as more than a mere geographical tract. On the other hand, the vill or township was no mere part of the earth’s surface, it was a community.116

Vill and village.We have little reason for believing that all our English vills conformed to a single type, or that their histories had been approximately identical. But there is a type to which many conformed and which we must keep before our minds. It is that of the nucleated village with open fields. All the houses of the vill are collected into one cluster. Around and inside this cluster there may be many little “closes,” crofts and paddocks; but by far the larger part of the territory of the vill lies uninclosed by any permanent fences. The arable lies in two, three or more great “fields,” each of which is cut up into multitudinous strips. These strips are reckoned to be acres, half-acres and roods. A villager who has in all but thirty arable acres will have perhaps some forty or fifty strips scattered about in all parts of the territory. A rude rotation of crop and fallow, the two-course or the three-course system, is observed, and, so soon as a crop has been garnered, the whole of the “field” which has borne it is depastured by the cattle of the villagers. Often the meadows are similarly treated: that is to say, for the purpose of growing a hay-crop they are enjoyed in severalty, but after the hay-harvest they become pasture for the beasts of many “commoners.” Then there are permanent pastures which are never inclosed or enjoyed in severalty but lie open at all seasons. Villages of this kind were numerous in southern and eastern England. Others there were which did not widely depart from the same type though they already contained some large closes and some severed pastures. In the west there was more ring-fenced property, and sometimes the vill looks like a group of small hamlets which is being kept together merely by legal and governmental bonds. The questions of remote history that are suggested by the maps of our villages we must not here discuss or even raise; but in many, perhaps in most, cases the township or community of the vill cannot but be compacter and in some sort more communal than is the community of a hundred or a county. Even if there is no corporate and no common property, there is at least a great deal of common enjoyment, and the economic affairs of every villager are closely intertwined with those of his neighbours.117

Vill and township.Modern usage may treat the two words vill and township as though they were synonymous; but in this respect medieval Latin was a more accurate language than our own; it distinguished between the villa and the villata, between the tract of land and the organized body of inhabitants. Doubtless the English word which answered to the Latin villa was tún, ton, town, a word which in comparatively modern times we have allowed the larger towns to appropriate to themselves. We cannot say that the distinction between villa and villata was always, still it was very generally, observed. If a crime takes place in the villa, the town of Trumpington, the villata, the township of Trumpington, may get into trouble. And so in what follows we shall use vill as an equivalent for villa, and township as an equivalent for villata, thus distinguishing the plot of ground from the community that inhabits it.118

Duties of township.For the township is a communitas,119 which, even if it has not rights, certainly has duties. We may reckon up the most important of them. It ought to attend the court held by the justices in eyre.120 It ought to attend the sheriff’s turn. It ought to attend the hundred and county courts whenever it has any crime to present.121 It must come at the coroner’s call to make inquest when a dead man’s body is found.122 It is bound to see that all its members who ought to be in frankpledge are in frankpledge. In some parts of the country the township is itself a frankpledge, a tithing, a borgh, and in this case it is responsible for the production of any of its members who is accused of crime.123 Apart from this, it was bound to arrest malefactors; at all events if a person was slain within its boundaries during the daytime and the slayer was not arrested, it was liable to an amercement. In the thirteenth century this liability was frequently enforced by the justices in their eyres; it must be distinguished from the liability of the hundred for the murder fine and seems to flow from no known act of legislation but to be based on immemorial custom.124 Again, from of old it was the duty of the township to raise the hue and cry and follow the trail of stolen cattle. In 1221 the jurors of Bridgnorth complained to the justices that the sheriff required of them the impossible task of following the trail through the middle of the town.125 Moreover, it was a common practice to commit prisoners to the charge of the villata, and then, if the prisoners escaped, the villata was amerced. So if a malefactor took sanctuary, the neighbouring townships had to watch the church and prevent his escape.126

Early examples of its duties.Most of these liabilities can be traced back into the reign of Henry II. A few examples of amercements may be given from among the many collected by Madox.127 The men of Tixover are amerced for refusing to swear the king’s assize, the township of Isle for not making suit after a murderer, the township of Rock for doing nothing when a man was slain in their vill, the township of Midwinter for receiving a man who was not in frankpledge, and the township of Newbold for a concealment and for burying a dead man without the view of the sheriff’s serjeant.

During the thirteenth century the activity of the township was further developed by legislation. An ordinance of 1233 provided that in every villa watch should be kept throughout the night by four men at the least.Statutory duties of township. This was repeated in 1252 and at the same time new provision was made for enforcing the assize of arms. The original assize of 1181 had not treated the villata as an organized entity; it had required that individuals should have the armour suitable to their station. The ordinance of 1252 decreed that in every township a constable or two constables should be appointed, and a chief constable in each hundred to convene the iurati ad arma. In 1253 this is supplemented by a provision that arms necessary for the pursuit of malefactors are to be provided at the cost of the township and are to remain to the use of the township.128 The whole system of the assize of arms and of watch and ward was consolidated in 1285 by the Statute of Winchester; the constabulary and the militia took the form that they were to keep during the rest of the middle ages.129

Contribution of township to general fines.Again, we see the vill as a district bound to contribute to the fines and amercements which are imposed upon the county and the hundred, for instance, the murder fines for which the hundred is liable. In the Hundred Rolls we read numerous complaints about vills and parts of vills which have been “subtracted” from these duties by lords, who have or pretend to have immunities. The effect of such subtraction was to increase the burden that fell on the neighbouring vills. Every extension of the “franchises” damaged “he geldable,” that is to say, the lands and vills which enjoyed no privilege.

Unjust exactions from townships.The township again is constantly brought before us as having had to bear all manner of unlawful exactions. The Hundred Rolls teem with complaints. Not only have the townships been amerced, according to their own account unjustly amerced, for the neglect of their police duties, but the royal officers have refused to do their own duties without being paid by the townships. Sheriffs will not take prisoners off their hands and coroners will not suffer them to bury their dead until there had been payment. One typical instance will be enough. A criminal took sanctuary in the church at Fos-dike; the township was bound to watch the church until the coroner came; the coroner would not come for less than a mark; so the township had to watch the church forty days to its great damage.130

Miscellaneous offences of the township.The practice of amercing the township for neglect of its police duties may have begotten the practice, which certainly prevailed in the thirteenth century, of treating the township as an amerciable unit capable of committing misdeeds of many kinds. Already in Henry II.’s day the township of Maltby owes four marks for having ploughed up the king’s highway.131 In 1235 certain townships are to be amerced for having helped a man to put himself in seisin without waiting for the presence of the sheriff’s officer; their amercement is to be affeered by other townships.132 On the Hundred Rolls we may find such entries as the following;—the township of God-manchester has made a purpresture upon the king’s highway and has appropriated therefrom the third of a rod; the whole township of Eynesbury has dug in the king’s highway and obstructed it to the nuisance of the country.133 In one part of Cambridgeshire the hundredors speak of the townships as communes (communae) and accuse them of sundry transgressions; the commune of Ely has occupied a fishery which used to belong to the manor of Soham; the commune of Reach has broken through the big dike (the Devil’s Ditch), so has the commune of Swaffham Bulbeck, which also neglects to repair its bridge; the commune of Exning has ploughed up the waste of Burwell, has obstructed the highway and diverted a watercourse. On the other hand, Thomas of Bodenham has appropriated land from the commune of Burwell.134 Even an assault and battery may be attributed to a township, for the whole township of Kennet has beaten and wounded two bailiffs.135

Organization of the township.All this seems to set before us the township as a legal entity which has, if not rights, at all events many and multifarious duties, and we might naturally suppose that in order to perform these duties it must have had some permanent organization: for example, some court or assembly in which the incidence of these duties could be apportioned among its members. When however we search for such organization we fail; at least for a while we seem to fail. Organization we find, but it is manorial; courts we find in plenty, but they are courts of manors. The township as such has no court, no assembly. And so with the officers of the township:—the constable is a new officer, his importance lies in the future, while as to the reeve we only know him in real life as the reeve of a lord, the reeve of a manor, usually a villein elected by his fellows in the lord’s court, presented to and accepted by the lord’s steward, compelled to serve the office because he is not a freeman. We must turn therefore from the township to the manor, but before that can be reached we must traverse the whole field of seignorial justice. The facts that we have to study are intricate; the legal principles have tied themselves into knots; we must pull out the threads one by one.

§ 4.

The Tithing

Frankpledge.A good example of this intricacy is afforded by the system of frank-pledge. We have had to mention it when speaking of the sheriff’s turn, and again when speaking of the township’s duties. But also it is closely connected in many ways with manorial affairs, with the relation between lord and men. Taken by itself it is a remarkable institution and one that suggests difficult questions.

The system in century xiii.And first we may look at the law as stated by Bracton.136 Every male of the age of twelve years, be he free, be he serf, ought to be in a frankpledge and a tithing (in franco plegio et in decenna). To this rule there are numerous exceptions according to the varying customs of different districts. The magnates, knights and their kinsmen, clerks and the like need not be in frankpledge; the freeholder (in one passage Bracton even says the freeman137 ) need not be in frankpledge, nor need the citizen who has fixed property:—his land is equivalent to a frankpledge. Again, instead of being in frankpledge one may be in the mainpast of another. The head of a household answers for the appearance in court of the members of his household, his servants, his retainers, those whom his hand feeds, his manupastus or mainpast —we may use a very Old English word and say his loaf-eaters.138 They are in his frith-borgh and need no other pledge.139 But, these exceptions being made, a male of the age of twelve years or upwards ought to be, and it is the duty of the township in which he dwells to see that he is, in frankpledge and tithing. If he is accused of a crime and not forthcoming and the township has failed in this duty, then it will be amerced. If on the other hand he was in a tithing, then the amercement will fall upon the tithing.

Township and tithing.The strict enforcement of these rules is abundantly proved by the rolls of the itinerant justices. When an accused person is not produced, his township is amerced if he was not in a tithing (decenna, theothinga, thuthinga etc.), and, if he was in a tithing, then that tithing is amerced. But to all seeming the “tithing” meant different things in different parts of the country. There can be no doubt that over a large part of England the persons subject to the law of frankpledge were distributed into groups, each consisting of ten, or in some cases of twelve or more, persons; each group was known as a “tithing”; each was presided over by one of the associated persons who was known as the chief-pledge, tithing-man, head-borough, borsholder, head or elder, that is, of the borh or pledge.140 The township discharged its duty by seeing that all who were resident within its boundaries were in these groups. On the other hand, in the southernmost and some western counties there seems to be a different arrangement:—the vill is a tithing, or in some cases a group of geographically separated tithings; the tithing is a district, even the borgha or pledge is a district;141 the tithing-man is the tithing-man of a place, of a vill or hamlet; the personal groups of ten or a dozen men are not found. In this part of the country the two duties, which elsewhere we see as two, seem fused into one: the township discharges its duty of having all its members in frankpledge and tithing by being itself a tithing and a frankpledge.142 But further, there were large parts of England in which there was no frank-pledge. In the middle of the thirteenth century the men of Shrop-shire asserted that within their boundaries no one was in a tithing; at the end of the century the jurors of Westmoreland declared that the law of Englishry, of murder fines, of tithing, of frankpledge, of mainpast, did not prevail and never had prevailed north of the Trent; at any rate it did not prevail in their county. Probably they drew the line at too southerly a point; but it is, to say the least, doubtful whether the system of frankpledge extended to any part of the ancient kingdom of Northumbria.143

The view of frankpledge.The maintenance of this system is enforced, not merely by amercements inflicted when the township or the tithing has failed in its duty and a criminal has escaped from justice, but also by periodical inspections and what we might call “field-days” of the frank-pledges. Twice a year the sheriff holds in each hundred a specially full hundred court to see that all men who ought to be are in frank-pledge. These half-yearly meetings we can trace back to the reign of Henry I.; they may be much older; in course of time they acquire the name of the sheriff’s “turn.” But though Henry II. in the Assize of Clarendon (1166) had strictly decreed that this business was to be in the sheriff’s hands,144 we find in the thirteenth century that there are large masses of men who never go near the sheriff’s turn. They are the men of lords who rightfully or wrongfully exercise the franchise that is known as “view of frankpledge”: that is to say, of lords who in their own courts see that their tenants are in frankpledge and take the profits which arise from the exercise of this jurisdiction; sometimes they allow the sheriff to be present, very often they exclude him altogether. Of all the franchises, the royal rights in private hands, view of frankpledge is perhaps the commonest.

Attendance at the view.The strict theory of the law seems to have required that all the frankpledges should attend the view; but as a matter of fact it was usual for none but the chief pledges to attend; often however they had to bring with them a sum of money which was accepted in lieu of the production of their tithings. Thus a system of representation of the tithing arose and very naturally it became bound up in intricate combinations with the representation of the township by its reeve and four men. Especially when the “view” is in private hands, we often find that the duty of presenting offenders is performed by the chief pledges, who thus form themselves into a jury. Under the influence of the Assize of Clarendon, the duty of producing one’s fellow-pledges to answer accusations seems to have been enlarged into a duty of reporting their offences and making presentments of all that went wrong in the tithing.

Constitution of tithings.Of the means by which men were “brought into tithings,” into the groups of ten or a dozen, we know very little. Could a youth choose his tithing? Could a tithing expel or refuse to admit a member whose bad character would make him burdensome? The answer to these and to similar questions seems to be that the men who had to be in tithings were generally unfreemen. They were brought into tithings by the lord or his steward and they could not resist.145 We may find a chief pledge paying a few pence to his lord in order that a certain man, presumably a bad subject, may be removed from his tithing. The chief pledge seems to have exercised a certain authority over his subordinate pledges; they owed him some obedience,146 and probably in the southern counties the tithing-man of the tithing, the borhsealdor of the borh, was also normally the reeve of the vill; but it is only in legal legends that he has any judicial powers.147

§ 5.

Seignorial Jurisdiction

Regalities and feudal rights.According to the legal theory of the thirteenth century seignorial jurisdiction has two roots—(1) the delegation of royal powers, (2) the relation between lord and tenants. Jurisdictional rights are divided into two classes. On the one hand, there are the franchises and regalities (libertates, regalia) which, at least according to the opinion of the king’s lawyers, can only exist in the hands of a subject by virtue of a grant from the crown. On the other hand, there is jurisdiction involved in the mere possession of a manor or in the mere fact of having tenants; we may briefly characterize it as being of a civil, non-criminal kind.148 Bracton in the statement of his general theory of temporal justice seems to neglect it. In this we cannot follow him. As to the franchises he speaks very positively. Who can bestow them? The king, and only he, for all justice and judgment, all that concerns the peace, all coercive power are his. Those things therefore that concern jurisdiction or that concern the peace belong to no one, but only to the king’s crown and dignity, and they cannot be separated from the crown, since they make the crown, for the king’s crown is to do judgment and justice and keep the peace. Such jurisdictional rights cannot be held by a private person “unless it be given him from above.” Then he lays down two maxims:—“Iurisdictio delegata non potest delegari”:—“Nullum tempus occurrit regi.”149

Acquisition of the regalities.Two very wholesome maxims; but it is clear that they have not been observed and we may doubt whether the kings themselves have made strenuous efforts to maintain them. Our information about the franchises must be drawn for the more part from pleadings of Edward I.’s reign; but these, despite their wealth of detail, are not very satisfactory, or rather disclose a state of things that is not easily described. Early in his reign Edward began a vigorous attack upon the franchises. First by means of inquests, the results of which are recorded on the Hundred Rolls, he ascertained what franchises were actually exercised, and then he sent out his judges and pleaders to demand by what warrant (quo waranto) the lords were wielding these powers. His advocates took the highest ground, propounded extreme doctrines, doctrines which would have destroyed a large half of the existing “liberties.” But the king did not proceed to extremities; few judgments were given; he had gained his main object; any further growth of the franchises was stopped; in 1290 he consented to a compromise. A continuous seisin for the last hundred years—the coronation of Richard I. was chosen as a limiting date—was to be a sufficient answer to the inquiry quo waranto.150

Theories of the royal lawyers.Thus we hear no statements of the law which can claim to be impartial. On the one hand, we have the doctrines of the king’s law officers, on the other hand, a mass of facts which prove that these doctrines, if they are not new, have been ignored. Let us see how far the royal advocates can go. The Bishop of Ely is defending his egregious liberties by charters of Edgar, the Confessor, the Conqueror, and Henry III. Gilbert Thornton to all his other objections adds this—“Allow for one moment that all these liberties are expressly mentioned in the charters, still the king has an action for revoking them, since he has never confirmed them. As regards the franchises of his crown each successive king is to be deemed an infant. His case is like that of a church. Each successive rector can revoke the lands of the church if they have been alienated by his predecessor.”151 That the franchises are inalienable is constantly asserted. Robert FitzNicholas took upon himself to grant the view of frank-pledge of two-thirds of a vill to John Giffard; this, says Thornton, is a cause of forfeiture; he was bound to exercise the jurisdiction in person and not to give it to another.152 If you urge long seisin, you aggravate your offence.153 Your usurpation cannot have had an innocent beginning; every one, says Bracton, must know that these things belong to the crown.154 It is plain to all, says Thornton, that upon the conquest of England every jurisdiction was united to the crown:155 —this historical theory is of great use when Anglo-Saxon charters are propounded. Even if it be allowed that there are cases in which user can beget title, this concession can only be made in favour of those whose ancestors came in with the Conqueror; no churchman can take advantage of it.156 And, if it comes to charters, the king is entitled to the benefit of every doubt; he is not to be ousted of his rights by “obscure and general words.”157 He is the giver and it is for him to interpret his gift.158 “Liberties” are easily forfeited by abuse or by mere non-use. The grantee must take the first opportunity that occurs of getting seisin of the franchise and must maintain his seisin. In Edward I.’s day he loses his right unless he claims it before the justices in eyre whenever they come round. Unfortunately the forfeited liberties are easily restored in consideration of a sum of money. It is this that prevents a modern reader from heartily taking the king’s side in the controversy. Despite all that is said about the inseparability of justice from the crown, the king sells liberties and compels the purchasers to buy them over and over again.

Various kinds of franchises.We may now glance at the franchises, first mentioning briefly those which have least to do with justice and then speaking more at length of the jurisdictional powers.

Fiscal immunities.(i)Fiscal Immunities. The grantees, their men, and their lands are freed from every imaginable form of taxation, “imperial and local”—if we may use such modern terms:—from all scots and gelds, danegelds, neatgelds, horngelds, footgelds, woodgelds, felgelds, scutage, carucage, hidage, tallage, aids for the king, aids for the sheriff and his bailiffs, wardpenny, averpenny, hundredpenny, tithing-penny, borghhalfpenny, chevage, headpenny;159 further, from all indirect taxes:—from passage, pontage, peage, lastage, stallage, vinage, weitage, toll; further from all fines and amercements imposed upon the shires and the hundreds, in particular from the murder fine.

Immunities from personal service.(ii)Immunities from personal service. They are freed from military service, “from hosts and summonses to the host,” from suit of court, from all shires, trithings, lathes, wapentakes and hundreds, from jury service, from tithings and frankpledge, from the duty of repairing castles, parks, roads and bridges, from the duty of carrying the king’s treasure and victuals, from carriage and summage and navige.

Immunities from forest law.(iii)Immunities from forest law. These are usually the subject of special bargains and are not thrown about with a lavish hand; but sometimes the grantees succeed in freeing themselves, their lands, men and dogs from some or all of the forestal regulations, from the swainmotes, regards of the forest, amercements of the forest, “waste and assart.”160 The immunities shade off into licences, such as that of keeping eight brachets and a pair of greyhounds and hunting the fox, the hare and the wild cat in the king’s forest of Essex.161

Fiscal powers.(iv)Fiscal powers. The king, it will be remembered, from time to time grants to his tenants the power of taking an aid or a scutage from their tenants, and, though these imposts may be regarded as feudal services, yet in practice they cannot be collected without a royal writ, and in course of time even theory seems to require that the king should have granted his tenants “their scutages” and given them leave to levy their aids.162 Again, the king can make a permanent grant of the produce of a tax and of the right to collect it; thus John gave to the Bishop of Ely and his successors the patronage over the Abbot of Thorney and “the aid of sheriffs and their bailiffs from all the men and tenements belonging to the said abbey,” so that the bishops became entitled to the due known as the sheriff’s aid.163 It is by no means improbable that a similar result was sometimes produced by mere words of immunity. When the king frees an abbey from scots and gelds, do the tenants, free and villein, of the abbey get the benefit of this exemption purchased by their lord’s money, or do they not now have to pay to the abbot what formerly they paid to the royal officers? John had granted that the monks of Ramsey and their demesnes and all the men of their demesnes should be free of all aids and demands of sheriffs and reeves and bailiffs;164 but at a later time we find the tenants of the abbey paying “sheriff’s aid”; doubtless they pay it to the abbot, and thus a tax becomes something very like a feudal service.165 If we may infer that the same process had been at work for a long time past, one of the sources of feudalism is here laid bare.166

Jurisdictional powers.(v)Jurisdictional powers. A royal charter of the thirteenth century very often, though by no means always, declares that the donee and his heirs are to hold the land with certain rights or powers which are described by English words. Of such words the commonest are “cum saca et soca et toll et theam”; often “infangenethef” is added; more rarely “utfangenethef” also; while in some cases there is a long list.167 The less usual of the words are the more intelligible; primarily they denote certain crimes, certain punishments, certain modes of procedure; in the charters they mean that the donee is to have jurisdiction over these crimes, power to inflict these punishments, power to use these modes of procedure. Thus he is to have housebreaking, breach of a special peace, waylaying, receipt of outlaws, the wites for bloodshed, for fighting, for flying from battle, for neglect of military service, for fornication, for suffering an escape from prison, he is to have the ordeal and the judicial combat. The list is careful to include just those crimes which Cnut had declared to be reserved pleas of the crown, those jurisdictional rights which the king has over all men unless he has seen fit to grant them away by express words.168 Under the old law a grant accompanied by these words would seemingly have stripped the king of all jurisdiction, except, it may be, a certain justice of last resort. And the Norman Conquest made no sudden change; the criminal law revealed by Domesday Book is of the old type and the pleas of the crown are just those which are included in the lists that are before us. But during the latter half of the twelfth century criminal law rapidly took a new shape; the doctrine of felony was developed, capital punishment supplanted the old wites, and the specially royal processes of indictment and inquest were introduced. The result seems to have been that the powers conferred by these old words became antiquated, the very meaning of the terms became disputable and those who wished for grants of high justice were compelled to purchase less dubious phrases. The most liberal grants were not unfrequently qualified by reservations the meaning of which grew ampler as time went on. The king declares that he reserves nothing for himself “except those things which belong to the king’s crown,” “except justice of life and member,” “except murder, treasure trove, rape, and breach of the peace.”169 As the king’s peace extends itself, as all serious crimes become felonies and deserve punishment of life and member, the reservation grows at the expense of the grant. Little in the thirteenth century was to be got out of these ancient words beyond the proceeds of a few minor offences, scuffles, affrays, fornication. Thus infangenethef might give one power to hang one’s own thief if caught within one’s own territory, and utfangenethef the power to hang him wherever caught; but it seems essential that he should be caught “handhaving or backbearing,” that is, with the stolen goods upon him and that he should be prosecuted by the loser of the goods. The manorial gallows was a common object of the country, but under these restrictions it cannot have been very useful.170

Contrast between immunities and powers.Now these antique words occur in two different contexts. At first sight we may even say that two formulas which seem to us contradictory are used as though they were equivalent. Sometimes the charter says that the donee is to hold his land with bloodwite, fightwite and so forth; more often that he is to hold it free and quit of bloodwite, fightwite and so forth; yet we can hardly doubt that the two phrases mean the same thing. To declare that a lord is to hold his lands free of bloodwite is to declare that if blood be shed by his tenants the king will not be entitled to the wite or fine; this, however, seems regarded as implying as matter of course that the lord will get the wite, for crimes are not to go unpunished. The principle thus brought out is one that is of service to us when we are dealing with a time the charters of which are couched in yet vaguer terms:—to free a lord’s land from royal jurisdiction or from the exactions which are appurtenant to the exercise of royal jurisdiction is to create a seignorial jurisdiction. The king’s lawyers sometimes protest against this principle, protest that a grant of immunity from frankpledge is not equivalent to a grant of view of frankpledge; but the lords refuse to recognize the distinction and may have history upon their side.171

Sake and soke; toll and team. But the four commonest words are the most interesting. In the thirteenth century there is already much doubt as to their meaning, and among the lawyers we see a strong tendency to make them mean as little as possible. Thus toll is sometimes the right to take toll, sometimes the right to be free of toll; but often it is merely the right to tallage one’s villeins, a right which every lord of villeins enjoys without the need of a royal grant.172 Then team is taken to mean the brood, the offspring, the “sequela” of one’s villeins;173 but this we may be sure is a mistake. Apparently it ought to mean the right to hold a court into which outsiders may be vouched as warrantors, or, to use a more technical term, the right to enforce a “foreign voucher.” The word sac (or, as we had better spell it, sake), the Anglo-Saxon sácu, the modern German Sache, means thing, cause, matter; the glossarists of the thirteenth century have not forgotten this and refer to the English phrase “for which sake”; in legal language it means a cause, a matter, an action, or as the Germans say Rechtssache; a grant then of sake should be a grant—by a very general term—of jurisdiction.174 Most important of all is soke or soken, which is used as a very large word to denote justiciary rights and the area within which they are exercised.

Sake and soke in the thirteenth century.The remote history of these terms has been discussed elsewhere.175 Here we have only to observe that in the thirteenth century the words sake and soke are regarded as describing jurisdiction, but jurisdiction of a kind that every lord has although he has no such words in his charter and although he has no charter from the king. Like the “general words” common in conveyances of a later date (“together with all easements, commons” and the like) they only serve to describe rights which the donee would have though no such words were employed; they give no franchise, they merely point to the feudal or manorial jurisdiction which every one may have if he holds a manor, or which every one may have if he has tenants.176 On the whole the prevailing doctrine seems to have been that sake and soke did nothing, that toll and theam did nothing, that infangenethef and utfangenethef merely gave the right to hang “hand-having” thieves, thieves taken “with the mainour” (cum manuopere), while the other old words could not be trusted to do much, though they might serve to define and possibly to increase the ordinary powers of a feudal court.177

View of frankpledge.The serious franchises of a jurisdictional kind were claimed under other words, or still more frequently were claimed by prescription. As the most serious, though the least exalted, we must reckon “view of frankpledge and all that to view of frankpledge doth belong”—as the most serious, because it was extremely common. Occasionally we find a clear grant of “view of frankpledge,” occasionally a grant of immunity from frankpledge which may or may not have amounted to the same thing,178 and perhaps a grant of frithsoken, —the word is not very common—would have the same operation.179 Far more commonly a lord prescribed for the “view,” and prescribed for it successfully. The right thus named comprised not merely the right to execute the law of frankpledge and take the profits thence arising, but also the right to hold twice a year a court coordinate with the sheriff’s turn, a police court, a court for the presentment of offences and the punishment of offences that fell short of felony. Towards the end of the thirteenth century the word leetLeet. (leta)—which seems to have spread outwards from the East Anglian counties—was becoming a common name for such a court, but to the last visus franciplegii remained the most formal and correct of titles. The lord who had this franchise claimed to swear in a body of jurors—often they were the chief pledges or heads of the tithings—and to put before them those same “articles of the view” (capitula visus) which the sheriff employed in his “turn.” The minor offences were punished on the spot by amercements which went to swell the lord’s revenue. But probably the pecuniary profit was in the eyes of the lords a small matter when compared with the power that was thus secured to them. Twice a year the villagers, bond and free, had to report themselves and tell tales one of another, while no tale went outside the manor to the ears of jealous neighbours or rapacious officials. Probably the tenants also were gainers by the franchise; they could manage their own affairs without the interference of “foreigners.”180

The vill and the view.The king’s advocates at times protested that only the tenant of a whole vill could enjoy this regality; the view, they say, must be a view for a vill, a view for a manor will not do, nor may a lord collect in his tithings tenants from divers vills;181 again, he ought to have at least twelve whole tithings, twelve chief pledges, so that none may be punished without the oath of twelve.182 These contentions were sometimes successfully urged, and the theory which connects the view of frankpledge with the organization of a perfect township (villa integra) may be a clue to past history; but as a matter of fact the franchise had been subinfeudated and was sometimes exercised over collections of men resident on various pieces of land geographically detached from each other and connected only by the fact that they were all holden of the same lord. Thus the view is sometimes divided between immediate lord and overlord; John Engaine holds manors at Gidding and Dillington of the Abbot of Ramsey; when the day for the view comes, the abbot’s bailiff appears, hands to John’s steward the articles of the view, and takes two shillings out of the proceeds of the day, while John keeps the rest.183 In Rutland the Prior of the Hospitallers holds the whole vill of Whitwell, he has twelve tenants in Dreystoke, one in Gunthorpe, two in Martinstoke, one in Barnardshill and twelve in Uppingham, for these he holds a view twice a year at Whitwell and Uppingham;184 tenants from several Bedfordshire villages go to the view held by Humphrey de Bohun at Kimbolton in Huntingdonshire.185

The assize of bread and beer.The lord who has the view of frankpledge usually has also “the assize of beer,” that is, the power of enforcing the general ordinances which from time to time fix the prices at which beer may be sold; sometimes, but much more rarely, he claims the assize of bread. Out of beer the lords made some considerable profit. It is common to find manorial jurors presenting as a matter of course that all the brewers, or rather alewives, of the village have “brewed against the assize”; whereupon all of them are amerced; and it is common to find the king’s advocates complaining that the lords inflict pecuniary amercements upon those hardened offenders who ought by rights to suffer in their persons by means of pillory and tumbrell. Pillory and tumbrell are the outward and visible signs of this jurisdiction, just as a gallows is the manifestation of “infangenethef”; the lord who does not keep proper instruments of justice, proper iudicialia, is liable to lose his franchise. Express grants of the assize of beer are uncommon; on the other hand many lords claim it by prescription, while the lords of Northumberland, Cumberland, Yorkshire and Lincolnshire assert that they are not even bound to prescribe for it, since it is theirs by the common custom of their counties.186 We have therefore come upon the line which divides those seignorial powers which are deemed regalities from those which have their justification in the mere relation between lord and tenants, and we find it a vague, fluctuating line settled in some cases by local customs.

High justice.Many were the lords who held the view of frankpledge, (the leet of later days) and the assize of beer; comparatively few were the lords who had more exalted jurisdictional powers. Still of such powers we find a gradually ascending scale. At the top are the two palatinates, the county of Chester, the bishopric of Durham; but below them stand lordships which are almost palatine and which leave their mark on the map of England for many centuries. When in 1888 the day has come for remodelling the government of our shires, the liberties of St. Edmund, of St. Etheldreda of Ely, of St. Peter of Medeshamstead are still respected.187 These together with the marcherships on the Welsh border are the most splendid instances. Sometimes the lord exercised the highest justice only within a small territory immediately surrounding his castle or monastery, a leugata, banlieu, lowy. Among these powers we may notice the following:

(a)Amerciamenta hominum. The lord has a right to the amercements of his men, even though those amercements are inflicted in the king’s court. The amercements are paid into the royal exchequer, and then the lord petitions that they may be paid out to him.

(b)Catalla felonum et fugitivorum. The lord, though he does not try felons, unless they be handhaving thieves, gets the forfeited chattels of condemned felons and outlaws which ordinarily would belong to the king. With this is sometimes coupled the right to hang felons sentenced by the king’s justices.

(c)Returnus188brevium. This is a highly valued right. Within the lord’s territory the “return of writs” belongs to him: that is to say, if the sheriff receives a writ (“original” or “judicial”) bidding him summon, attach or distrain one resident within that territory, or seize lands or goods, he must deliver that writ to the bailiff of the liberty who will execute the precept. Only in case the lord or his bailiff has been guilty of default and a second writ comes to the sheriff containing the clause “ quod non omittas propter aliquam libertatem, ” will he be justified in entering the privileged precinct.

(d) Some lords have, and prescribe to have, coroners of their own—a remarkable fact, since to the best of our knowledge coroners were first instituted on this side of the limit of legal memory.

(e) Some lords compel the king’s justices in eyre to come and sit within their precincts and even to occupy a secondary position. They come there—such at least is the lord’s theory—merely to see that the lord’s court makes no default in justice; but the business of the court, even though it consist of pleas of the crown, is conducted by the lord himself, his bailiffs or justices. Sometimes the lord claims that for the time being he himself is iustitiarius domini Regis.189

(f) Some lords have a civil jurisdiction within their territories which excludes the jurisdiction of the king’s courts. If an action concerning anything within the precinct is begun before the Bench at Westminster, the lord sends a bailiff to “crave cognizance” of the cause and he is allowed it (petit curiam suam et habet).

High franchises claimed by prescription.Some of the highest powers were claimed by prescription; for example, the Archbishop of York declared that he and his predecessors had wielded them from time immemorial; not one scrap of parchment did he deign to produce. He even claimed to coin money by prescription.190 And we may state as a general rule that just the very highest jurisdictional powers were seldom claimed by any other title. Occasionally a bishop or an abbot would rely on the vague, large words of some Anglo-Saxon land-book. But this was a false move; the king’s lawyers were not astute palaeographers or diplomatists, but any charter couched in terms sufficiently loose to pass for one moment as belonging to the age before the Conquest could be met by the doctrine that the king was not to be deprived of his rights by “obscure and general words.” For their markets and fairs, their chases and warrens, for amerciamenta hominum and catalla felonum the lords have charters; but when they hold all the pleas of the crown, when they appoint justices and coroners, when they coin money, when they treat the king’s justices as distinguished visitors to be “accommodated with a seat upon the bench,” then they prescribe:—they and all their predecessors have done the like; so they say and so the country says.

The properly feudal jurisdiction.But apart from all franchises, a lord has jurisdiction over his tenants. This he does not claim by royal grant, nor does he prescribe for it; in its exercise we cannot call him the king’s delegate. En glish law of the thirteenth century seems to have admitted the broad rule that every lord with tenants enough to form a court may, so far as the king is concerned, hold a court of and for his tenants. We say “so far as the king is concerned.” Whether a lord enfeoffing a tenant had to stipulate for suit of court if he wished to oblige the feoffee to serve as a doomsman is a different question. Only late in the day was that question brought before the royal justices. Some seem to have held that an express stipulation was necessary if more suit was to be exacted than such as was necessary to enable the lord to exercise any regal jurisdiction with which he had been entrusted. Others were of a different opinion. The matter was settled by the Statute of Marlborough (1267):191 —the lord who exacts suit to his feudal court must rely upon express stipulation or upon a somewhat brief prescriptive title.192 This, however, is a matter of comparatively little importance; the greater matter is that mere tenure gives to every lord, who has the means of exercising it, a jurisdiction over his tenant; his tenant is his justiciable.

The feudal court is usually a manorial court.This jurisdiction, if the tenant is a freeholder, is not of a high order, nor is it very lucrative. It is but a civil jurisdiction, and it is hampered and controlled by royal justice. What is more, the feudal court is generally a manorial court, a court for a small district. Even though we cannot at the moment explain the full import of this proposition, we may dwell on it for a moment. We shall beg no question by saying that the manor usually is but a small space of ground: small, that is, when we compare it with the total amount of land which a great noble will hold “either in demesne or in service.” A rich religious house may have twenty manors in demesne; a lay noble will not have so many in demesne, but he will have some few in demesne and many more in service; his honour will consist of a large number of manors scattered about in divers parts of England; of some few he will be the immediate lord, while others will be holden of him by his knights. Now the simple principle of feudal justice that we have lately stated would authorize such a lord to hold a court for his honour, to hold one court for all his immediate tenants; or, again, if his tenants were widely scattered, he might hold several honorial courts, one, let us say, for his Kentish tenants, another in Gloucestershire, another in Yorkshire. And thus between the actual occupant of a tenement and the king there might stand a whole hierarchy of courts. We have seen above how between Roger of St. German who held land in Huntingdonshire and the king there were no less than seven mesne lords.193 The principle which is now before us would in such a case permit the existence of seven feudal courts. That such was the law we can hardly doubt; no narrower principle will explain the facts. Very often the lord of a manor who had a court of his own was himself bound to do suit at his lord’s court. The petition which the barons presented at the Oxford parliament of 1258 assumes that not seldom three feudal courts tower one above the other. Complaint is made that the Abbot of Peterborough does not allow his freeholders to hold courts for their tenants, whereas this is sanctioned by law and custom throughout the realm. The Prior of Dunstable was compelled to concede that his burgesses might hold courts for their tenants. Furthermore, it seems to have been a common practice for a wealthy abbey to keep a court, known as a halimoot, on each of its manors, while in addition to these manorial courts it kept a central court, a libera curia for all its greater freehold tenants. And we may now and again meet with courts which are distinctly called courts of honours. The rule then was, not merely that the lord of a manor may hold a court for the manor, but that a lord may hold a court for his tenants.

Nevertheless it must be allowed that in the thirteenth century full advantage was not taken of the principle. Subinfeudation had gone far indeed and, as said above, the jurisdiction over freeholders was no longer very valuable; it brought the lord little money and did not add much to his power. The feudal courts that we see in active work are for the more part manorial courts, and the affairs with which they are concerned are mainly the affairs of tenants in villeinage, even the affairs of villeins. As a matter of fact, feudal jurisdiction seems intimately connected with the entities known as manors and these manors again seem to be intimately connected with townships. Still these links exist rather in the world of fact than in the world of law; the legal principle is the simple principle that tenure implies jurisdiction. The Abbot of Ramsey may bring to his court at Broughton his freehold tenants from seven counties; the burgess of Dunstable may hold a court for his tenants.194

Jurisdiction of feudal court.Of these feudal,—they will in general be manorial—courts we may now give a brief account; first we will speak of their competence and then of their constitution.

I. Civil Litigation. (i) Personal Actions. They entertain personal actions, at least when the amount at stake is less than forty shillings; in particular, actions of debt, detinue, trespass and covenant. This jurisdiction seems to be considered as arising out of the relationship between man and lord. On the other hand, the action of replevin (de vetito namii) is royal and few lords claim to entertain it. Perhaps in theory the defendant ought to be an immediate tenant of the lord, but it is very likely that a lord often compelled any resident on his land to answer in his court, at all events when there was between them no lower lord with a court of his own. That the plaintiff also should be the lord’s man would not be necessary. This jurisdiction was a useful, thriving reality. We may well find a manorial court which generally has some ten to twenty personal actions depending before it, and, as we shall see later on, these humble courts seem to have recognized certain causes of action for which the king’s courts offered no remedy; they gave damages in cases of slander and libel and possibly they enforced some agreements to which the king’s courts would have paid no heed.

(ii) Actions for the recovery of freehold land. Since the days of Henry II. the rule had been that no one could be compelled to answer for his freehold without the king’s writ.195 On the other hand stood the rule, sanctioned by Magna Carta, that for a true proprietary action for land admittedly held of a certain lord, that lord’s court was the proper tribunal, and, though the king’s judges and chancellors gradually impaired the force of this rule by the invention of new actions which were in effect proprietary, though they may have been nominally possessory, still throughout the thirteenth century and even in the fourteenth we hear of a good many actions begun in the feudal courts by “writ of right.” Very seldom however, unless our books mislead us, were such actions finally disposed of in those courts; to get them removed first into the county courts and then into the king’s court was easy, and if the tenant (the passive party in the litigation) chose to reject the duel and put himself upon the grand assize, the competence of the lord’s court was at an end. Hengham tells us that in his day the lords rarely asserted this jurisdiction over freehold land, for they could get little or no profit out of it.196

(iii) Actions relating to customary or villein tenements. In all matters which concerned a merely customary title to land the lord’s court was the only competent tribunal, for of such a title the king’s judges would know nothing. No royal writ was necessary. Still we see the lord’s court doing strict justice in due form of law; there is no formless arbitration, there are formal pleadings which are strictly construed. Before the end of the century pleaders in manorial courts are making use of phrases which seem to have their origin at Westminster;197 but all along they have been using technical phrases, tracing the descent of the customary tenement from heir to heir, alleging “seisin as of right,” alleging the taking of “esplees,” adding however at every turn “according to the custom of the manor.”198 The justice which the customary tenants got was strict justice; it was not “equity” on the one hand, but on the other it was not “the will of the lord.”

(iv) Litigation between lord and man. That the lord could sue his tenant seems plain; the entries on a court roll largely consist of such as show how the lord’s bailiff made accusations against the tenants and how the lord recovered damages from them; the tenants are charged with trespasses, or with breaches of the manorial custom.199 It is late in the day before we hear any suggestion that such a course of procedure is inequitable since it makes the lord a judge in his own cause, and even then it is admitted to be “the common course throughout the land.”200 There is much to show that in the past one of the main uses of a feudal court had been that it enabled the lord to compel his tenants to perform their services; this will appear from what has been said about the law of distress.201 As to the objection that the lord is both judge and party, that fails, for the lord is not judge; the defendant has the judgment of his peers. On the other hand, the lord cannot be sued in his court; this is true of him as it is true of the king. The proper feudal course for one who claims to hold land of X but cannot get that land is to demand justice from X, and if this demand fails, to go to the court of X’ s lord. A lord distrained to answer in his own court is the most startling anomaly of the ancient demesne.

II. Presentments. Even though the lord does not aspire to, or on this particular day is not exercising, the franchise of view of frank-pledge, he often makes use of a procedure which involves presentment. Jurors are sworn in, sometimes twelve, but often less than twelve, to present offences. Perhaps in theory they have no business to present any offences which touch the king’s peace, such as assaults, since in adjudicating on these the lord would be usurping a franchise, and ought to confine themselves to breaches of the manorial custom and invasions of the lord’s proprietary rights. But it is difficult to maintain or even to draw the line, difficult to prevent a lord from making his feudal court a police court. Especially is this so when the tenants are unfree; if the lord amerces a serf for drawing his knife, pilfering his neighbour’s goods, using bad words, he is after all but demanding money which already is his own; even if he puts the man in the stocks or turns him out of the vill, this, if it can be regarded as an act of justice, can also be regarded as an act of ownership. And so we find that the presentments are miscellaneous:— A has assaulted B;C has abused D; E is a scolding wife; F’ s daughter has been guilty of fornication and so he owes a leyrwite; G, a freeholder, is dead and his son owes a relief; H is the lord’s nativus and has left the manor; J came late to the boon works; K keeps his dung-heap before his door; L has fished in the lord’s pond; M sells sour beer; N puts more beasts on the pasture than the by-law allows him; O rescued his impounded beasts; and so forth. As a rule when there is no question touching freehold the accused seems to get little chance of denying these charges, but is at once amerced; sixpenny and threepenny amercements are common.

III. Governmental Power and By-laws. Within narrow limits a feudal court might be, not merely a court of justice, but also an assembly capable of discussing and arranging the affairs of the tenurial group. To such an assembly the lord would in old times appeal when he wanted an aid from his military tenants,202 or when he wanted them, or some of them on behalf of all, to go to the war.203 But among the knights of an honour there was little communalism; each individual had his rights and duties; the one could not be impaired, the other could not be aggravated by any resolution of his peers. As to manorial by-laws we must speak hereafter. Over unfreemen, even over the freemen who hold unfree lands, such by-laws, being made with the lord’s approval, would have great power; a breach of them might be punished by a forfeiture of the tenement; a recalcitrant bondman might be set in the stocks; but to enforce by-laws against a freeholding freeman was a more difficult matter.

IV. Appellate Jurisdiction. When a great lord had many halimoots and one libera curia, difficult cases which arose in the former were sometimes reserved for the latter. But the magnates had aimed at more than this. They had wished for an appellate jurisdiction, or rather a “jurisdiction in error” over the courts of their tenants. Had the first principle of feudal justice been allowed free play, their demand must have been conceded. But it failed. If the court of the lower lord made default in justice, the case could be removed at once into the county court and thence to the king’s court, and none but the king’s court could hear a charge of false judgment.204 After a severe struggle these rules were established; to their operation it is due that in England we hear little of exalted feudal courts, courts of baronies and honours.

V. Conveyancing Business. In later ages the work of a manorial court will chiefly consist in witnessing transfers of copyhold land; the court roll will become a register of title for the copyholders. At the accession of Edward I., however, the practice of keeping court rolls was still new, and, though from time to time we may hear how a tenant in villeinage “puts himself upon the roll” by way of proving his title,205 still on such rolls as we have seen entries of “surrenders and admittances” are so few and so irregular that we cannot believe that they were of much importance. However, such power of alienation as the custom of the manor gives to the tenant in villeinage is often exercised in court. He can only alienate his tenement by surrendering it to the lord, and, if this is done in open court, the lord’s acceptance of a new tenant will be witnessed by the men of the court, and their testimony will be useful at a future time. We have no reason, however, for saying that only in court could a lord give villein land to a new tenant or concede to a dead tenant’s heir the tenement of his ancestor, for, according to the law of the king’s court, the land was the lord’s to do what he liked with. From an ancient demesne manor we may already hear how a tenant who was too ill to come to court made a surrender to the bailiff out of court to the intent that the bailiff might make the surrender in court.206 With the transfer of freehold land the court had in general little to do; the tenants subinfeudated their tenements without going to the court, and in the thirteenth century they already thrust new immediate tenants upon their lord without asking for his cooperation;207 still a careful lord would oblige the manorial jury to present deaths and descents which took place among his freeholders, in order that he might secure his reliefs, wardships and marriages. As homage had to be done to the lord in his proper person, it was more usually done in his house than in the manorial court.

Constitution of the feudal court. The president.And now as to the constitution of the court. There seems no reason why the lord should not preside over it in person, and occasionally an abbot or prior would do this.208 Often the cellarer of the abbey, himself a monk, would hold the courts; but generally they were held by the lord’s steward. Some abbots and other lords had allowed the stewardship to become hereditary; they had enfeoffed knights who were to hold their lands by the serjeanty of stewardship. But before the end of the thirteenth century the work was falling into the hands of lawyers. Very great lawyers did not scorn it. A little later, in 1335, we find the prior of Christ Church offering the office of steward to no less a person than Sir John Stonor, who had been for some years one of the king’s justices;209 he would not accept, but he was in no wise offended by, the proposal. And then, when a weighty cause is to be heard in the court of Merstham, the prior sends down one of his counsel to afforce the court.210 At an earlier time, when the Abbot of St. Alban’s had quarrelled with his knights, he induced one of the king’s justices, who had come to deliver the gaol, to preside over the feudal assembly under the ash tree.211 And, as we have said before, men were beginning to write books which should teach stewards how to hold plea, and very technical books they are.212

The suitors.As in the communal so in the feudal courts, the president has doomsmen at his side. When he is making the view of frankpledge, when (to use the terms of a later day) the court is acting as a “court leet,” he—like the sheriff in his “turn”—seems to be the only judge: the procedure by way of presentment is not easily compatible with the action of a body of doomsmen; the view of frankpledge is a royal franchise, and for the time being the steward is quasi a royal justice.213 But “in the court baron the suitors are the judges”—this rule is well maintained throughout the middle ages. At their end it is said that two suitors will suffice; we may well doubt whether so small a number would have been adequate at an earlier time.214 Heriet, a justice of John’s reign, seems to have demanded twelve.215 How far any distinction was drawn in practice between cases which affected freemen and those which affected unfreemen is a doubtful question.216 In Coke’s day it was said that the lord of a manor had one court, “a court baron,” for his freeholders and another court, “a customary court,” for his copyholders, and that in the latter the lord or his steward was the judge. Now over his unfreemen the lord had, according to the law of the king’s court, almost unlimited power; short of maiming them he might do what he liked with them; and every tenant of an unfree tenement was a tenant at will. Nevertheless in the court rolls and the manuals for stewards which come to us from the thirteenth and fourteenth centuries we cannot discover two courts or two methods of constituting the court. Freeholders and serfs are said to owe suit to the same halimoot, and, so far as we can see, the curia which pronounces judgment is always the same body. Occasionally distinctions of status are noticed. When the lord is holding a view of frankpledge, if he has many tenants, he will sometimes copy the procedure of the sheriff’s turn; the presentments will be made in the first instance by villani, and will then be revised by a jury of freeholders.217 Sometimes two bondmen will be appointed to affeer the amercements of the bond, while two freemen will affeer the amercements of the free.218 No doubt, again, a freeman might have objected if among his dooms-men he saw a serf. No doubt, again, the theory that the villein tenements were held at the will of the lord was by no means idle; the lord could not be compelled to accept a new tenant against his will. Still, so far as we can see, when the lord’s interests were not being actively asserted, the serf who sued or was sued in the manorial court got the same justice as that which the freeman got; he got in theory the judgment, not of his lord, but of a body of dooms-men who were at least his peers. We say that such a judgment he got in theory; in practice the question became of less and less moment, for trial by jury gradually forced its way into the manorial courts. In strictness of law the lord could not compel his freemen to serve as jurors in civil causes; they and the king were agreed that none but the king should make them swear; but the lord could force his bondmen to swear, and many a small freeholder would serve rather than quarrel with his lord. At any rate trial by jury made its way into these courts, and it hardly leaves a place for the doomsman; indeed in course of time the cry for a iudicium parium is (to the great distortion of history) supposed to find its satisfaction in trial by jury. Very late in the day (for we cannot trace this further back than a Star Chamber case of Henry VIII.’s reign) we hear a doctrine which, if it has any historical warrant at all, suggests that no lord could hold a court even for his bondmen unless he had free doomsmen, for it is said that there can be no manor without at least two freeholders owing suit of court. Interpret this doctrine how we may, we cannot believe it ancient. As to the question about the use of words we shall speak below; but we do not believe that all the maneria of the twelfth and thirteenth centuries comprised freeholders. As to the questions of law, we cannot find that a lord’s jurisdiction over freemen was in any wise dependent upon his having villein tenants, or that his jurisdiction over his villeins demanded the existence of freeholders. Very little weight should be ascribed to the unreasoned, unexplained dictum of the Star Chamber delivered at a time when the feudal courts were senile and villeinage was all but dead, and yet this dictum seems to be the only source of the famous doctrine that a manor cannot exist without two freeholders.219

§ 6.

The Manor

The manor.And now at length we may go up against the manor. We may make our task the easier if we observe that “the manor” is more prominent in modern theories than in medieval texts. Bracton rarely uses the term manerium. Only in one context does he give anything that can be called an explanation of that word and it explains very little. A person who brings an action for land must specify the land that he claims. In so doing, he will perhaps use the word manerium, and therefore it is necessary to note that manors and vills are not all one, that sometimes a manor and a vill bear the same name, that sometimes a manor contains several vills, and again that a manor is not the same thing as a mansion.220 But what is the essence of a manerium we are never told. Such records of litigation as we have in print give us no further help. Sometimes, though not very often, the object demanded in an action is a manor, and we may find disputes as to whether a particular tenement is or is not a part, or “a member” of a particular manor. The word is used in conveyances, and doubts may arise as to what has passed to the donee by a gift of “the manor of Dale.” But in conveyances the term is much less common than we with our theories of “a manorial system” might expect. Even when we turn to the Hundred Rolls and read the detailed descriptions of tenures and tenements, of the groups formed by lords and tenants, though we may well think that we are reading of manors, still we may often read through many pages without seeing the word manerium. May we hope that we have shown, as Bracton showed, that much may be said of the law of tenure, of status, of jurisdiction, though that word be never employed?

Manor not a technical word.In a sense therefore we must deny that in the thirteenth century the word manerium was a technical term, that it could be placed in the same category with villa, feodum unius militis, liberum tenementum, villenagium. There are reasons for thinking that in a remoter past and especially in Domesday Book, this term had borne a definite legal sense which was concerned with the levy of the danegeld.221 Be that as it may, we believe that in the thirteenth century no strict definition of a manor could have been fashioned. Any word that is commonly used in the transaction of business is likely to come before the law-courts and to be discussed by pleaders and judges. A modern court may be called upon to decide whether a four-roomed cottage was fairly described as “a country house”; but still, “country house” is not a technical term. In our own day the term “estate” is used by Englishmen to describe tracts of land; but who can accurately define its meaning? If we read in a biography that the hero had “an estate in Kent” we should expect him to have had more than a rood of cabbage-garden; but how much more? Must there have been a house and some fields? Must he have had land “in hand”? Must he have had tenant farmers and cottagers? And what of “a country seat”?

Indefiniteness of the term manor.In the thirteenth century the term manerium seems to have been no more precise than the term “estate” (as commonly used by laymen) is at the present day. It implied, for example, a certain geographical extent, neither too small, nor too large, and a certain geographical continuity; but the requisite size, the requisite continuity could not be defined. A manor in Cambridgeshire might have a member in Suffolk; a manor in Kent could not have a member in Northumberland; but the exact degree of discontinuity that would have rendered the term inappropriate could not be fixed. Modern attempts to define a manor break down before this difficulty. Most, if not all, of them would suffer or even compel us to describe many a vast honour scattered about over all England as being a single manor.222

A typical manor.Therefore to ask for a definition of a manor is to ask for what cannot be given. We may however draw a picture of a typical manor, and, this done, we may discuss the deviations from this type.

(1) The typical manor is geographically coincident with a vill; the lord of the manor is also the lord of the vill; manor and vill have one name; the group of men, which, when regarded from one point, appears as the villata or township, if regarded from another point appears as a group of tenants; all persons who have lands in the vill hold of one and the same lord. This gives unity to the manor, for the township has many public duties, and the question whether a given acre is part of the vill or whether a given person is a member of the township is, we may say, a question of public law. (2) The inhabited and cultivated lands of the manor are divisible into three portions; the lord holds land in demesne (in the narrowest sense of that term223 ) and on this stand his house and homestead, and these are sometimes called preeminently the manerium; then there are lands held of him by freehold tenure, and there are lands held of him by unfree or customary tenure. The arable portion of the manor usually lies in two or three great open fields, and the strips which are held by the lord, by the freeholders, by the customary tenants lie intermingled. There is also pasture land; much of it is held by the lord in demesne, but over it the tenants have rights of common. The manor is an economic unit; the lord’s demesne lands in that manor are to a considerable extent cultivated by means of the labour services which are due from the tenants. (3) If the lord is a great man with several manors, even though these be contiguous, the accounts of each are separately kept; very generally each manor will have its bailiff and its reeve. (4) Lastly, the lord holds a court for the manor; if he is a great man, besides having a court for each manor, he may hold a central court for all his principal freeholders, but each manor will usually have a court of its own.

Thus we may regard the typical manor (1) as being, qua vill, an unit of public law, of police and fiscal law, (2) as being an unit in the system of agriculture, (3) as being an unit in the management of property, (4) as being a jurisdictional unit. But we have now to see that hardly one of these traits can be considered as absolutely essential. The most important is the connexion between the manor and the vill; a consideration of this we must for a while postpone; but this much may be premised that in very many instances the manor is not geographically coincident with a vill nor yet with any group of vills.

The manor house.We may begin by saying that the manor comprises a house, or at all events a homestead, occupied by the lord, his servants or lessees. This from the etymologist’s point of view appears as the essence of the manor. The term manor (manerium) is one of the many words which have their origin in the Latin verb manere; mansus, mansa (common in the Anglo-Saxon land-books), mansio, mansura or masura, messuagium are other examples, and it would seem that each of these has but slowly acquired a shade of meaning peculiar to itself. In our thirteenth century “manor,” “mansion” and “messuage” are no longer convertible terms, though “manor” is still occasionally used to signify just the lord’s house or homestead and no more: the porta manerii is the door of the house or of the court-yard; the situs manerii is the site of the house together with its curtilage;224 indeed in France the word manoir seems seldom, if ever, to bear a more extended meaning. Still the word is commonly used so as to include much more than a house, as, for example, when Bracton tells us that a chief manor may contain several sub-manors, that a manerium may be composed of several vills.225

Sometimes a phrase seems to halt between the narrower and the wider meaning and shows us the relation between the two. When it is written that certain lands “belong to” such a manor, a connexion legal and economic between them and a certain building is, or may be, in the writer’s mind. Occasionally the word “hall,” which may have been common in English speech, is used in the same way— “he owes suit to the hall (aula) of Horningsheath,” “it is customary land of the hall (aula) of Packenham.”226

Occupation of the manor house.However, we dare not say that it is indispensably necessary that the manor should include a house occupied by the lord. On a strictly personal occupation of course we cannot insist. Many manors were in the hands of the religious, and neither did the monks live on the manors, nor was it usual for a bishop or abbot to reside on all his manors in turn; if he had three or four residences, this was enough; but he might have thirty or forty manors. The centre of the typical manor is often a homestead or farmyard with but humble buildings placed under the charge of a bailiff, rather than a fine dwelling for the lord and his family. But it is doubtful whether we can even insist upon the homestead. Often we may find that the situs manerii has been let to a tenant at a rent; we cannot be certain that there are any longer any buildings upon it, and if there are, they are no longer occupied by the lord or his servants.

Demesne land.A similar doubt must be suggested as to the necessity of land held in demesne. Undoubtedly it is a normal feature of a manor that there should be land the fruits (not the rents but the actual fruits) of which come to the lord’s garners; the unfree, and often the free, tenants assist in the cultivation of this land, the raising of these fruits; the economist is apt to consider this as the essence of the manorial arrangement. But suppose that the lord, more or less permanently, parts with this land in exchange for a rent; has he ceased to hold a manor, to be lord of a manor, to have the right to hold a court for all the tenants of the manor? To all these questions we must answer, No, at least if the supposed alienation be no more than a lease for years. Towards the end of the century it was becoming common for the lord to let the land that he had held in demesne; but the farmer (firmarius) of the demesne land did not become lord of the manor, the lessor did not cease to be lord, the tenants still held immediately of him, he still kept a court for them and took its profits. As to the effect of more permanent alienations, there may be more doubt, and we must distinguish a question about the use of words from a question about the existence of rights. If the lord of a manor enfeoffed another person with all the demesne lands, this gift, we may be sure, did not necessarily carry with it a lordship over the tenants of the free and unfree tenements, a right to all their rents and services, a jurisdiction over them. Men were very free to make what arrangements they pleased. We have, for example, an instructive verdict concerning the history of a Cambridgeshire vill. The Earl of Gloucester holds Bottisham of the king. But his predecessors gave “the whole manor of Bottisham with all lands, demesnes and tenements, villeinages, coterells, pastures, meadows, mills, franchise of bull and ram and all appurtenances and easements to two houses of religion, to wit, a moiety to Anglesey Priory and a moiety to Tonbridge Priory, saving to himself and his successors the free rents of the free tenants in the same vill, and saving suit of court from three weeks to three weeks, and saving the homages and reliefs of the free tenants and wardships and escheats and all pleas.” The result is that the prior of Anglesey has 200 acres and 6 villeins and 5 coterells, the prior of Tonbridge has a like holding, while the earl has some 40 freehold tenants for whom he holds a court; the view of frankpledge for the whole vill is in his hand.227 Here we have the lord of a manor giving half his demesnes and half his villein tenements to one priory, half to another, but retaining to himself an immediate lordship over the freeholders, his right to receive their rents and to hold a court for them. An endless variety of such arrangements was possible, the only legal limit being that which would have protected freehold tenants against any aggravation of their services. Probably, while the labour services of the villeins remained uncommuted, a lord did not often part with the whole, or nearly the whole, of his demesne land without giving along with this a right to those services which his villeins had been accustomed to do on that land; to have done so would have been to lighten or even to abolish the services; but when those services were commuted into money dues, there was nothing to prevent the lord conveying away his demesne and retaining his immediate lordship over the villeins and his right to their rents.

The freehold tenants.To give positive proof that no freehold tenants were necessary to constitute a manerium is difficult, for, as already said, we may turn many pages of the Hundred Rolls without seeing that word, and certain it seems that towards the end of the thirteenth century a lord seldom had many villein tenants without having just a few freeholders intermingled with them. Still instances may be found in which a lord has a considerable group of villein tenants with whom no freeholder is associated. Thus, on the Abbot of Gloucester’s estates we find that in village after village, in which he has demesne land and many tenants in villeinage and in which he holds a court with villein suitors, he has no freeholders, or but one freeholder; yet in these villages he has maneria.228 Again, a comparison between the surveys of the thirteenth century and the earlier documents seems to show that many of the freehold tenancies are of modern origin. As regards two of the Abbot of Peterborough’s manors we may compare the Hundred Roll with the ancient Black Book. On the “manor” of Alwalton, according to the younger of these documents, there are two libere tenentes, the one is the parish parson, the other holds but a messuage with a rood and three acres; the Black Book tells of no freeholders. It is so also on the “manor” of Fletton; the Black Book mentions no freeholders; the Hundred Roll mentions two, one of whom gets his land from his grandfather, who was steward in the abbot’s hall.229 Indeed in the Black Book we come across vill after vill in which the abbot has many villeins and no freehold tenant. The theory that freehold tenants are necessary to constitute a manor will allow to some mighty lords of the twelfth century very few manors indeed.

Tenants in villeinage.One limit may perhaps be set to our scepticism:—there must be villein tenements, there must at all events be some tenants holding “of” the manor. As a matter of fact this probably was so. In the then state of agriculture a tract of any considerable size held in demesne almost of necessity implied a group of persons whose tenure of other lands obliged them to aid their lord in his husbandry. Still when we find the word “manor” used, as sometimes it is, to denote just the lord’s house and homestead, and when we consider the close connexion that there is between “manor,” “manse,” “mansion,” “messuage,” we may doubt whether there is any severe rule of fashion, to say nothing of law, about the use of these terms. Again, we are not able to produce any example from the thirteenth century of an estate which is called a manor but which has no villein or customary tenements bound up in it or with it; still we should not be surprised to find that if a lord enfranchised all his villein tenements he still was said to hold a manor; he might get a good deal of occasional labour out of his freeholders, so that their lands would still be knotted to his demesne lands so as to form an economic unit. Nor have we any warrant for supposing that this state of things could be produced only by enfranchisement. In the account of eastern England given in Domesday Book it is possible to find maneria which have no tenants who are below the rank of sokemen, and some of these manors may still have been “manors” in the thirteenth century, manors with freehold tenants, but without tenants of a baser kind.

The manor court.Again, to turn to another point, we hardly dare say that a person who has villein or customary tenants must have a manor or must have a court. What can we make of the numerous cases in which a man has but three or four such tenants? Does he hold a court for them? Let us examine the vill of Upton in Huntingdonshire:— A has a messuage and half a carucate in demesne and the sixth part of a wood and “the sixth part of one free tenant,” John the Freeman, who pays him 8 d. and holds one carucate; and A has also one virgate and a half in villeinage which three villeins hold of him, each of whom pays him 10 s. and merchet, and he has “the sixth part of two villeins,” and each of them pays him 19 d. for the sixth part of one carucate; and he has two coterells each of whom pays him 3 s. 8 d., and “half one coterell” who pays him 10 d., and “the sixth part of two coterells” each of whom pays him 6 d.: — B and C and D have estates similar to A’ s and there are some other holdings.230 Whether A would have said that he had a manor we do not know, but we can hardly believe that he kept a court for his tenants and fractional parts of tenants. Obviously in this case there has been a descent among co-heiresses: part of the estate that descended to them has been partitioned, part remains unpartitioned.

But similar results might be caused by subinfeudation. Once upon a time the king held Great Wilbraham: he gave half of it to Nigel the Chamberlain, who gave half that half as his daughter’s marriage portion; this quarter of the vill is now held by Robert de l’Isle, who has 10 customary tenants. Nigel gave away another piece to the Abbot of Warden; the residue of his moiety descended to his five daughters. Then the king gave a quarter of the other moiety to one Picot, and the remaining three-eighths to Hubert de Burgh, who gave them to the Templars. The consequence is that the custumarii of Wilbraham are divided among many lords, one of whom has but three.231 A case may be found in which a man has a few freehold tenants and just one customary tenant (a servus),232 many cases in which he has two or three villeins and two or three cottagers. In these cases we cannot easily believe that the villeins are protected by any court or by any custom. When a great lord detaches a few of his customary tenants to form an endowment for some retainer, they can hardly keep their old condition; in course of time they must rise or they must fall: their services being commuted into money, they may make good their claim to be freeholders, or on the other hand they may become tenants at will in the strictest sense of the term.

Size of the manor.To the size of the manor we can set neither an inferior nor a superior limit. Occasionally diminutive words are coined to indicate manors which are of less than the normal size; thus Domesday Book tells us how the bishop had a maneriolum in Lincoln with one carucate of land and sake and soke and toll and team;233 and the Hundred Rolls tell us of a manerettum in Devonshire.234 In Domesday Book the word manerium often covers an exceedingly small quantity of land; the so-called manor is only a peasant’s tenement.235 In the thirteenth century we shall hardly find the word given to such little estates. On the other hand, the very largest manors which then meet us have all the appearance of being old.

Four cases may be mentioned. The ancient demesne manor of Bensington in Oxfordshire has according to the jurors been vast; Henley-on-Thames, Nettlebed, Wyfold, Huntercombe, Warborough, Shillingford, Holcombe and Crowmarsh have been its hamlets, and four hundreds and a half have been appurtenant to it.236 In Domesday Book Bensington pays the king the large sum of £80 and 100 shillings “and the soke of four and a half hundreds pertains to this manor.”237 In Suffolk lies the huge royal “manor” of Lothingland, containing the towns of Gorleston and Lowestoft, which lie some nine miles apart;238 this represents a great estate held by Earl Gurth in the time of the Confessor.239 In Lincolnshire the king’s manor of Castor includes many adjacent villages or parts of them;240 this had been a great estate of Earl Morcar with 240 sokemen, 24 villani, 28 bordarii.241 The manor of Taunton Dean covered numerous villages; in the Conqueror’s day it brought the Bishop of Winchester £154 a year;242 it has become the classical example of manors abnormally large.

Administrative unity.We may probably insist that the unity of the manor implies a certain unity in its administration. A lord may have many manors lying side by side, and yet they are separate manors, because he treats them as separate. It may, no doubt, be true that the manor generally had one set of open fields to itself, one set and no more; but exceptions on both sides of this rule must have been common. Each of the vast maneria of Domesday Book cannot have had just one set of fields and no more, and some of these vast maneria still existed in the thirteenth century. On the other hand, when in Cambridgeshire we find several manors in almost every vill and then look at maps that were made before the inclosure of the open fields, we shall learn to doubt whether in this part of England the lands of the manor could, even normally, be brought within a ring fence; they seem to have lain intermixed in the common fields with the lands of the other manors of the same vill. The delimitation of one manor from other manors of the same lord seems to be a matter of convenience: one may become two, two may become one, as the lord chooses to have his accounts kept, his rents collected, his produce garnered in this way or in that. At least with the consent of his freehold tenants, a lord may “attorn” a piece of land to this manor or that, decide that the tenants shall pay their rents at this house or at that, while as to his villeins, their consent need not be asked.243

Summary.On the whole therefore we come to the conclusion that in the thirteenth century the word “manor,” like the “estate” of our own day, was a vague, though common and useful word. Applied to a given instance it might be definite enough; no one would doubt that certain acres belonged to the manor of Dale, just as now-a-days it may be notorious throughout the countryside that certain acres are part of the Dale estate; but to have inquired what it was that gave the manor of Dale its unity, what made it one manor not two manors (to be called perhaps Upper Dale and Lower Dale), what were the characteristics a loss of which would have been fatal to its existence as a single manor, would have been to ask questions no clear answer to which could have been had, because they would seldom have been useful questions. They could only arise in a practical form when there was a dispute as to how much land had passed by some feoffment or lease, and on such occasions they would be settled by general repute:—the jurors would say that the plot in question had always, or had never, been accounted part of the manor. In other words, we are inclined to think that the mere fact that a certain tract of land or a certain complex of rights was a manerium had no immediate legal consequences. In particular, it seems to us that the men of the time would generally have argued from the court to the manor, rather than from the manor to the court, and would have said “A single court is held for it, therefore it is a manor,” rather than “It is a manor and therefore it has a court.”

§ 7.

The Manor and the Township

Coincidence of manor and vill.In a famous passage Ordericus Vitalis asserts the identity of the manerium and the villa: —the Bishop of Coutances held by the Conqueror’s gift two hundred and eighty “villas quas a manendo manerios vulgo vocamus,”244 An assumption to the same effect seems to be made by the writ which ordered the Domesday Inquest; the priest, the reeve and six villani of every villa are to swear, in the first place how the mansio is called, who held it under the Confessor, who holds it now, how many ploughs there are in demesne, how many the men have—and so forth. It is assumed that England is, and has been, held in villae, that each villa has its mansio. The answering verdicts do not altogether bear out this assumption. The local names which are used (when they are not names of counties or hundreds) seem to be with few, if any, exceptions the names of places which were accounted villae; they are names of villages, and generally there is no difficulty about finding them as names of villages upon the modern map. Now very commonly it is true that a single lord holds the whole place which bears one of these names. The formula used is “ A (name of a tenant in chief) tenet X (place name),” and we do not find that any person, other than A and tenants of his, holds anything in X. But this rule is subject to so many exceptions that in some parts of the country it ceases to be the rule. Such is the case in the neighbourhood of Cambridge. For example, there are five tenancies in chief in Trumpington and six in Grantchester; no one therefore could call himself the lord of Trumpington or of Grantchester, save the king, and he only in the sense in which he was lord of every vill in England. In documents that are later than Domesday Book we sometimes find the same assumption, which in French we might express thus: Nulle ville sans seigneur. In the Leges Henrici245 the priest, reeve and four of the best men of the vill appear as representatives of the lord. Of what lord? The lord of the vill. The Saladin tithe of 1188 is to be assessed in each parish in the presence of the serjeant and clerk of the baron. Of what baron? The lord of the parish. For the assessment of the tax of 1198 the presence is required of the lord of each vill or the bailiff of the vill.246 Even the statute book of the fourteenth century seems sometimes to assume that every vill will have its lord.247

Coincidence assumed as normal.All this is significant, for it seems to testify to a common belief that normally vill and manor are but two names for one thing: the villa of public law is the manerium of property law. In favour of the assumption that this is the common and typical, we may add that it is the simple and explicable case. When vill and manor coincide, then we see an organization which will enable the township to discharge its public duties. It now has a court, in which a reeve and constable may be appointed and in which all questions relating to the apportionment of public duties can be decided. We can also see how in this case the township can have “common” rights, the right for example to turn out beasts on a common pasture; the soil of that pasture belongs to the lord of the vill and regulations concerning its use can be made in his court. All will go smoothly, for the communitas or communa of the township has a governing body, a representative assembly which meets periodically. Very frequently this case is put before us in the rolls of manorial courts:—the body of persons who attend the court represent the township and indeed are the township, and so we read how the villata gives evidence, gives judgments, makes presentments, makes by-laws.248 The lord’s court in such a case was not merely the court of a manor, it was the court of a vill, of a township; in English speech it may often have been called the town-moot or township-moot.249

This coincidence not always found.Such was the simple, and we have seen some reason for calling it the typical, case. But in many parts of the country it cannot have been the common case. In the thirteenth century the terms “manor” and “vill” were not equivalent. The legal principles which shape the manor are not those which shape the vill. For a moment we may even be tempted to say that the vill is an unit of public, the manor an unit of private law; the one an unit for police purposes and fiscal purposes, the other a complex of proprietary rights and of the mutual obligations which bind lord to tenants and tenants to lord. And there is truth here. To all appearance the boundaries of the vills are matters of public law, not to be disturbed by conveyance or contract. New townships cannot be created or old townships abolished by the lord of the soil, for in so doing he would disarrange the fiscal, administrative, justiciary scheme of the hundred, the county, the kingdom, and might aggravate the burdens incumbent on his neighbours.250 The power of making new vills without licence from above must cease as the centralization of government and justice becomes more perfect, probably had ceased before the end of the twelfth century. But the next century was near its end before landowners had lost the power of creating new manors. The process of subinfeudation went on rapidly; it was governed by rules of private law; it created new manors. Partition among co-heiresses was another source of new manors; even in later centuries when legal doctrines had collected round the word “manor,” and the general theory was that a manor must have existed from before the beginning of legal memory, it was still admitted that a partition among co-parceners might make two manors out of one.251 But serviceable though this general idea may be, this contrast between the units of public and of private law, we cannot press it home. At least according to our modern ideas, a court is an institute of public not of private law; but it is rather the manor than the township that has a court; the township as such has none. Still, though it may be impossible for us to explain the distinction by any general terms of modern jurisprudence, it existed.252

Nonmanorial vills.Bracton expressly tells us that a manor may contain several vills.253 The Bishop of Durham seems to have held sixty-seven vills distributed into ten manors, so that on an average each manor contained more than six vills.254 Such cases, common in the north, we may at the moment pass by as raising no great difficulty; the lord may keep but one court for several vills, still there is a court which can act as a governing body for every vill. Far more perplexing is the case in which there was no court with authority over the whole vill. Yet such a case was common. If we may trust our county histories, there are often, at least in the south of England, two, three or four manors in the same vill. When we have made large allowances for the vanity of modern landowners, who have liked the sound of the word “manor,” the case remains common, and, at least in Cambridgeshire, the Hundred Rolls show that it was common in the reign of Edward I., while Domesday Book shows that it had been common ever since the Conquest. When there are several manors in a vill, the names that they bear are often not true local names but family names, the names of the persons who held them in the thirteenth or some later century.

Manor and sub-manor.There is, however, a difficulty before us when we attempt to define the cases that are under discussion. We must in the first place mark off the instances in which there is a chief manor with several sub-manors, for in these instances the whole vill may be subject mediately or immediately to one and the same court, the court of the chief manor. That court will be attended by the lords of the sub-manors or their representatives and may be able to act as a governing assembly for a whole vill or for a group of vills.255 But, though it is hard to fix the limit, we come upon cases which we can no longer describe as presenting the phenomenon of manor and sub-manor. The difficulty is occasioned by the vagueness of the term “manor” and the fact that in a certain sense every vill in England must have a lord who is lord of the whole vill; at all events the king will be lord of the vill; all the titles of all the landholders may meet at some point short of the king; the whole vill may belong to the honour of Gloucester; but at any rate they will meet in the king. Now when in a single vill we find three or four lords each with land in desmesne, freehold tenants and villeins, and each lord holds immediately of the king, or traces his title from the king through a different series of mesne lords, and when we find that the king himself has no demesne land and no villein tenants in or near the vill, we feel that any talk of chief manor and sub-manors will be out of place:—the king has no manor there, and no one has a manor which contains the whole vill. The case is much the same if the titles of the various lords meet in the Earl of Gloucester; the whole vill forms part of the honour of Gloucester; the lords may be bound to attend the court, or one of the courts of that honour; but if the earl has no demesne land and no villein tenants in the neighbourhood, we shall not say that any of the Earl’s manors comprises this vill. But we have to use vague phrases such as “in the neighbourhood.” In Oxfordshire Robert Danvers has a considerable estate at Tetsworth, John Clifford at Milton, Henry de Bruyli at Waterstoke, Jordan Forester at Ascot, the Abbot of Thame at Affington, Nicholas Segrave at Moreton, William Quatermains at Weston; each of them has many tenants; most of them have what according to any definition must be manors; their holdings lie in various vills, some lying more than five miles from Thame; yet each of them holds “of the manor of Thame,” which belongs to the Bishop of Lincoln.256 However, we have already said our say about the verbal question; the point now of importance is that to all appearance there were many cases in which there was no feudal court that could in any sense claim authority over the whole vill and many other cases in which the only feudal unity of the whole vill was due to the fact that every part of it was remotely held of some great lord and was, or might be, represented in the court of some wide-spread honour. England was not composed of manors. In many a vill we may find a few tenements which in the feudal or tenurial system stand far apart from the tenements with which they are intermixed. Their holders are small people who are the immediate tenants of the king, or of some magnate who has no other land in that vill or in its neighbourhood.

The affairs of the nonmanorial vill.How then were the internal affairs of the vill regulated? It may seem to us that here we ought to detect some organization of the vill that is not manorial, not feudal, some “township-moot,” or some intermanorial organization. The township must have a reeve, the township must send four good men to court, the township must capture felons and keep them in custody, the township must make all manner of payments, periodic and occasional. How can these duties be apportioned if there be no court, assembly, governing body of the vill?

Permanent apportionment of the township’s duties.We have looked for such organization in our documents without finding it. To say that it must have existed is an expedient from which at present we shrink. Such evidence as we have points, not to any village assembly, but to permanent arrangements made once for all, arrangements under which, at least as between the various manors, lords of manors and extramanorial freeholders, the communal burdens of the township have become “real” burdens. Once more we come upon the “realism” of the time; one manor owes an aliquot share of all imposts exacted from the vill, another manor another share. The duty of sending representatives to the courts has been permanently apportioned. To represent Dodford in Buckinghamshire one lord supplies three men, another the fourth man and the reeve.257 The vill of Thurlby and Morton used to appear before the justices as an entire vill; but now the Templars “subtract” one man whereby the king’s business is impeded.258 The fourth part of the vill of Willingham, namely the fee of Cantilupe, does not make its accustomed suit, to the king’s damage of 2 d. per annum.259 The township of Abingdon Parva used to come to the eyre and the sheriff’s turn by four men and the reeve, but now John of Girund withdraws one man and the Prioress of St. Radegund another, so that but three come.260 Such entries as these seem to show that the burden of providing the five representatives, like every similar burden, tended to become a permanent charge on particular acres of land.

Allotment of financial burdens.And so with the duty of contributing to fines and amercements. The aliquot share that each hundred must contribute towards a fine imposed on the county is known, and the aliquot share that each vill must pay to a fine imposed on the hundred is known. Thus it is known that if a fine is imposed on the hundred of Hoo in Kent, the Abbot of Reading ought to pay one third of it, “for he stands for a third in the said hundred as the third lord of the said hundred.”261 What is to happen if he procures a charter exempting his lands from these fines is not very clear; the men of the hundred hold one opinion, the officers of the exchequer another. So again it is not certain how far these apportionments are unalterable:—the men of Marshland declare that they ought to bear one third of the charges cast upon the hundred of Freebridge, while the other men of Freebridge assert that new assessments should be made from time to time.262 And so it is within the vill. In an ancient survey of the lands of St. Edmund we read that the vill of Risby is divided into four parts; the hall of the convent with its men is one fourth, the land of Ralph Breton another, the land of Norman another, the land of William and of the sokemen another.263 Thus when we are told that a township contributes this or that amount to some ancient impost, towards the danegeld, the sheriff’s aid, the hundred-scot or the like, we must not at once assume that any organization of the township was requisite for the assessment of this due. These taxes seem to be radicated in the soil. In the Lincolnshire Hundred Rolls we often read how “ A. B. has subtracted service due to the king, to wit, the sheriff’s aid from one carucate, or from six bovates, or from a half-bovate of land, to the king’s damage 20 d., or to the king’s damage 1¼ d. ”264 In the case of some of these dues the men of the township may have been jointly and severally liable for the whole amount which is said to be paid by or due from it; still, as between the various parts of the vill, there was a permanent apportionment. We often hear complaints that the financial affairs of the township have been disordered by claims of immunity from taxation, and they show that, if one lord shuffles off his burden, he increases, at least for a time, the burden of his neighbours. Hugh de Gornay gave one carucate out of his manor of Houghton to the prior of Dunstable; the tenants of this carucate used to contribute to the amercements of the township of Houghton; but now they claim franchise under the king’s charter; the township has been amerced for an escape to the amount of 100 s.; the sum was to be collected rateably according to the extents of lands (per porciones et extentas terrarum); the prior’s share was 20 s.; he will not pay; but the vill has to pay instead.265 But, though a gross sum is charged on the vill and the men of the vill may be jointly and severally liable for the whole sum, still within the vill the shares of the several tenements have been fixed once and for all.

The church rate.Such was, we suspect, or in the past had been, the case with the church-rate or its precursor. We here tread on ground every inch of which has been undermined by bitter controversy; we will traverse it rapidly.266 Whether or no the church-rate has a remote origin, whether it is connected with ancient church-scots and light-scots, whether, on the other hand, the clergy have shuffled off a burden which once fell on them, we do not inquire. We think it however quite plain that in the thirteenth century the general custom of the church of England, swerving in this from the ius commune of the catholic church, cast the burden of repairing the nave of the parish church and providing the main part of the ecclesiastical apparatus, not upon the parson, but upon the parishioners, and that the lay power left the spiritual tribunals free to enforce this custom by spiritual censures. But we are by no means satisfied that this custom demanded any permanent organization of the parishioners, any “vestry” that would meet and grant a rate. So far as we can see, the burden is a “real burden,” incumbent on land. The ecclesiastical power can, we take it, deal directly with each individual landowner, can excommunicate him and procure his imprisonment if he will not contribute his proper share to whatever expenditure has become necessary for the due repair of the fabric, and the question of necessity is decided by the ecclesiastical court. The duty of repairing the parish church is analogous to the duty of repairing the county bridges; it is planted in the soil and to the soil it has ceded; it is apportioned according to hidage or acreage. No doubt, the occasional nature of the charge almost compels the rector or the archdeacon to deal with the parishioners as a body, to call them together and endeavour to persuade them that a wall is crumbling or that a new missal is wanted. The parishioners will make terms with him; they may vote him a rate to be assessed in this way or in that; and very likely, as they will have to pay, they will hire the workmen and buy the materials. The splendour and costliness of the churches and their furniture increase very rapidly; the parson’s demands grow heavier and more frequent. What goes on in the kingdom at large is going on in each parish. Money-voting vestries became as indispensable to the rector as money-voting parliaments are to the king. Movable wealth must be brought within the sphere of taxation. To our minds it would be as rash to argue from the “vestries” or parishioners’ meetings of the fourteenth and fifteenth centuries to similar assemblies of an earlier time, as it would be to argue that the commons of the realm were represented in the councils of Henry II. because they were represented in the parliaments of Edward I. And so with the church-wardens. We are not persuaded that as a general rule there were church-wardens in the thirteenth century. They and their legal powers are, to our thinking, the outcome of two movements, one in the world of fact, the other in the world of legal thought. If the parishioners are compelled to provide precious books, robes, vessels, they will naturally desire to have their say about the custody of these articles; parsons have been known to sell the church plate. Secondly, as we have seen, in the later middle ages a dead saint or a personified ecclesia would no longer serve as a persona capable of proprietary and possessory rights. The lawyers are beginning to hold that the rector is in some sort the owner or tenant of the church-yard and the glebe; they have to find an owner, at all events a possessor, for what in the past had been the chattels owned and possessed by a saint or a personified ecclesia; the church-wardens present themselves as claimants for property and possession.267

Apportionment of taxes on movables.A curious glimpse into medieval habits and thoughts is given us by the history of those royal taxes upon movable goods which are becoming common at the end of our period. Upon the face of the documents which prescribe how the tax is to be levied we see little enough of “realism.” Every man in England is to pay a fifteenth of his movables and therefore every man of Littleton must do so. In order to reveal the amount of his wealth, some of his neighbours must be examined, and for the purpose of the requisite assessment the vill will be taken as its unit. Four or six men must come from each vill to meet the chief taxers whom the king has appointed. It is possible that in some of the early instances these representatives were chosen by their fellow villagers—even this would not entitle us to imagine any standing assembly of the township—but so soon as the procedure becomes perfectly clear, the villar representatives are not elected by their neighbours.268 The king appoints “chief taxers” for the county; they are to cause to come before them so many men from each vill that they, the chief taxers, may be able to choose out four or six, who are thereupon to appraise the goods of every man of their vill.269 Of any sum of money cast upon the vill as a whole we read no word; each individual man of the kingdom is to pay a fifteenth of his movables. However, in Edward III.’s reign the effect of repeated taxations is that certain quotas have already struck root in the soil of the vills. Frequently a township complains that it is assessed too highly, for it is not so rich as once it was. Arundel has suffered by fire, Frismark by water; in Bradway there used to live a rich man who paid two-thirds of the taxes, but now he is dead; men are leaving Derby to live at Nottingham because the burden of tenths and fifteenths lies heavy on the former town; the men of Newport complain that the pressure of the fifteenth upon them is increased because the Prior of Newport has acquired lands in their vill and is free from taxation.270 Now all this means that a given vill is rated at a certain sum, and that, whenever a fifteenth or a tenth of movables is payable, the chief taxers insist that a fifteenth or a tenth of that sum must come from that vill. There is in this case nothing that we can with accuracy call communal or common liability. The sub-taxers have to apportion this fixed sum among the men of their vill, and the individual man will be liable only for the amount which they cast upon him. Still there is a localized allotment of the tax among the vills. The case is the more instructive because the growth of this system seems but half recognized. If a township is impoverished by flood or fire or the death of a wealthy member, it demands a new taxation and seems to regard this as matter of right. This is a remarkable example of the “realism” of medieval law. Even a tax on movables cannot live without roots; it must attach itself to the land. We see this happening in the full light of the fourteenth century to the detriment of the royal exchequer, which is forced to regard the wealth of England as a fixed quantity. We may be fairly sure that in earlier days this realism was yet stronger, and where it prevailed no permanent communal machinery was required for the apportionment of public burdens.

Actions against the hundred. The student of the middle ages will at first sight see communalism everywhere. It seems to be an all pervading principle. Communities rather than individual men appear as the chief units in the governmental system. A little experience will make him distrust this communalism; he will begin to regard it as the thin cloak of a rough and rude individualism. He reads of an action for damages given against a hundred which has neglected its police duties.271 At first he may think that the hundred as an universitas has property out of which the damages can be paid. He will soon be persuaded that this is not so. He next imagines the hundred-moot levying a rate for the payment of a sum that has been adjudged to be due from the hundred. But, turning to his books, he finds that there is nothing in the case that ought to be called communal liability; there is merely a joint and several liability. The person who has been injured picks out two or three wealthy inhabitants of the district, sues them for the whole sum and recovers it from them. But at all events (so he may think) these men will be able to claim a contribution from their fellow inhabitants. No, the burden lies where it originally falls. This is so until Elizabeth’s day, when for the first time a more equitable and a more communal principle is introduced, and all the inhabitants are rated for the relief of those who have suffered for the sins of the hundred.272 What we begin by calling the permanent charges on the community turn out to be “real” burdens apportioned for good and all upon manors and virgates and acres of land, while, at least in some cases, as we have just seen, the occasional charges are distributed by chance.

Economic affairs of the nonmanorial vill.But (to return to the township) the unity which public law demands from it is not the only unity that it displays. Having read, for example, in the Hundred Rolls, how in Cambridgeshire the vill contained two, three, four manors, having verified this in Domesday Book, having seen for instance how ever since the Conquest there have been five tenancies in chief in Trumpington, six in Grantchester, we turn to maps which show that very often these manors were not continuous tracts of land. Each village has its great open fields; the fields take their names from the villages, not from the manors; the lands of the various manors lie intermixed in the fields. Now this we cannot treat as a mere geographical fact. Cultivation of the common fields implies a system of agriculture which must in some degree be communal. To this we must add that in the thirteenth century rights of pasture are far more commonly attributed to the men or the community of a vill than to the tenants of a manor. In some cases it must have been difficult enough to say to whom belonged the soil of the waste land over which these rights were exercised. If a manor coincides with the vill, there is no difficulty; the lord of the manor owns the waste land; and again if there is a chief manor coincident with the vill, then the lord of the chief manor owns the waste, or such parts of it as have not been allotted in severalty to the various sub-manors. But, as we have seen, these cases do not exhaust all possibilities or all realities. There might be four or five manors in the vill between which there was no subordination: each lord might trace his title up to the king along a different feudal thread. We may take as an instance the vill of Gamlingay in Cambridgeshire, not because it is abnormally elaborate, but because it attracted Nasse’s attention.273 “The whole township (villata not villa) of Gamlingay has twelve score acres of common pasture and heath.” According to the jurors the whole township came to King Stephen by way of escheat, and out of it he enfeoffed three men, namely the predecessor of John Avenel, the predecessor of William of Leicester, and the predecessor of Hugh of Babington, besides which he gave a certain tenement to his steward Walkelin which has now come to the Abbot of Sawtrey. John Avenel has a well-marked manor with demesne, customary tenants and many freeholders, who have other freeholders under them. The same is true of Hugh of Babington. William of Leicester sold his part to Walter of Merton, and it has gone to endow his house of scholars at Oxford; they have demesne land and many freehold tenants. All these tenements are accounted to belong to the honour of Boulogne; but there is yet another tenement with a hide of land which Richard of Edensore holds of the honour of Gloucester.274 Who then owned those twelve score acres of pasture and heath over which “the whole township of Gamlingay” had rights of common? Perhaps this question has never yet been considered by the lords or tenants of Gamlingay. So long as certain land is regarded as doomed for ever to be pasture land, and so long as every one knows how many beasts he may turn out on it, the question as to the ownership of the soil does not arise. We must not be quick to say that in the past the township of Gamlingay has owned this soil; far truer may it be to say that the idea of ownership had never been applied to it. But we are now dealing with the thirteenth century, and our present point must be that in Gamlingay we see no court, no assembly, capable of dealing with this waste. We do not see it in our documents. Shall we say that none the less it must be there?

Intercommoning vills.Before we give an affirmative answer we ought to observe that there were many cases in which two, three, or more vills intercommoned. Of such cases we read much in the thirteenth century, but they grow ever rarer as time goes on.275 Sometimes the boundaries of vills were uncertain; between lay a waste over which the cattle roamed indiscriminately and no one could fix the spot where the territory of one vill left off and that of another began.276 Now, when we see this, we do not feel compelled to suppose that there was some permanent “intervillar” organization, some assembly in which the several townships met each other to regulate the affairs of the common. So when there are several manors in one vill; the rights of the various lords in “the common of the vill” seem regarded as having been determined once for all by the terms of their feoffments, and, if there is to be any new regulation of them, this is accomplished, not by the action of any court or assembly, but by a treaty. Each lord can represent himself and his villeins; his freeholders give their consent. Such treaties were not unknown. The Abbot of Malmesbury wished to enclose part of a great moor called Corsgrave. Twelve deeds were necessary for this purpose. By one the lord of Foxley “on behalf of himself and all his men of servile condition” released his right of common; by the others various freehold tenants of Foxley released their rights.277 As to the customary course of agriculture, that needs no regulation; it maintains itself, as it will maintain itself in the eighteenth century when the manorial courts are perishing. As yet men do not wish to break through it. What could one do with one’s scattered strips of land if one set the custom at naught? They must lie profitless.278

Return to the manorial vill.But that the township had and needed little permanent organization we shall better understand if we return to the case in which a vill and a manor are coincident. Here at first sight we may seem to see an effective organization; the vill is no mere administrative district; the township is a “village community.” Certainly this is so; the township is a communa, a communitas, and this village community has a moot, a court and assembly of its own; the communitas villae is the communitas halimoti. Still under the influence of modern theories about “archaic” facts we might exaggerate the amount of communalism or even of self-government which exists in the township.

Rights of common.This will become apparent if we examine the rights that are known as rights of common. Here if anywhere we ought to see the communalism of the township at its strongest. The houses and arable acres, it may be said, are by this time owned in severalty, though a man’s ownership of his arable is still subject to the rights of the township which are expressed in the programme of agriculture, the two-course system, or the three-course system; but the waste land with its pastures and woods and waters belongs to the township as a whole. True, it may be added, a lord has now assumed to himself the rights or many of the rights of the village corporation; legal theory supposes that the waste belongs to him; but then the members of the township, free and unfree, still enjoy this waste in common and regulate its enjoyment in their moot. Remove the lord, who is an aftergrowth, the township appears as a landowning community.

Rights of common and communal rights.But does our evidence point this way? Let us take the case of the freeholders, which should be comparatively undisturbed by the effects of seignorial dominion. Are their rights “of common” in any sense communal rights? Of course there is just this element of community about them:—they are rights to be enjoyed in common. A right of common is a right to enjoy something along with someone else, to turn out one’s beasts on a pasture where the beasts of the lord and of one’s fellow-tenants feed, to take sticks from a wood, turf from a moor, fish from a pond in which others are entitled to do similar acts. But, for all this, the right may be an individual’s several right, a right that he has acquired by a several title, a right that he can enforce against his fellow-commoners, a right that he without aid from his fellow-commoners can enforce against strangers, a right over which his fellow-commoners have little or no control.

The freeholder’s rights.Such really are the freeholder’s rights. At a later time our law definitely laid down the rule that the freehold tenant of a manor is entitled to “common appendant,” which is defined as “the right which every freehold tenant of a manor possesses, to depasture his commonable cattle, levant and couchant on his freehold tenement anciently arable, in the wastes of the manor.”279 To entitle himself to this right, a man merely has to show that he is a freehold tenant of the manor; he has not to show that this right has been granted by the lord to him or to his predecessors, nor has he to show that he has gained it by long-continued use. With common appendant is contrasted “common appurtenant.” If a man claims some right which exceeds or swerves from the definition of common appendant, then he must make a title to it by grant or prescription. Such is the case, for example, if he would turn onto the waste beasts that are not commonable, donkeys, goats, swine or geese, if he would turn onto the waste more oxen or horses than are “levant and couchant” on his tenement, or if he would claim common in respect of land that is not “ancient arable.” Now, it has, so we think, been sufficiently shown that the terms in which this distinction is expressed are pretty modern; an accurate discrimination between “appendancy” and “appurtenancy” belongs rather to Littleton’s day than to Bracton’s.280 Also it must be confessed that the substance of the distinction hardly appears in Bracton’s text. His doctrine is that these rights of common are iura in re aliena and are to be gained either by grant or by adverse user, though he seems to admit a class of cases, not very easily definable, in which it is unnecessary for a claimant to prove any such title.281 On the whole, however, a comparison of charters of feoffment with manorial surveys will bring us to the conclusion that in substance the distinction between appendancy and appurtenancy, between rights of common which require specific description and rights of common which arise whenever a tenement is given, unless they be excluded by negative words, is very old.282

The freeholder and the community. But, be this as it may, the freeholder’s right of common is his several right, as much his several right as is his tenancy of his house. His “seisin” of this right is fully protected by the king’s court, protected by a similar action to that which guards his seisin of his house; the assize of novel disseisin is supplemented by an assize of common. It seems fairly clear that before the Statute of Merton (1236) any single freeholder who had a right of common could prevent his lord from subtracting from that right any part of the land over which it had been exercisable.283 That statute gave the lord a right to “approve,” that is, to make his profit of,284 and hence to enclose, to subtract, the waste land, provided that he left sufficient pasture for the commoners. How did matters stand before the statute? The individual freeholder addresses his lord and his fellows:—“True it is that the waste is superabundant; true that I am only entitled to turn out four oxen on it; true that if half of it were enclosed I should be none the worse off; true that all of you wish the enclosure made; true that I am selfish:—nevertheless I defy you to enclose one square yard; I defy you severally; I defy you jointly; you may meet in your court; you may pass what resolutions you please; I shall contemn them; for I have a right to put my beasts on this land and on every part of it; the law gives me this right and the king protects it.” This is not communalism; it is individualism in excelsis.

Freedom of the freeholder.Over the freeholder the manorial court has little power; for him it is a court of law (though very generally he can evade its action and go straight to the king’s court), but it is hardly a governmental assembly. He is very free of custom, he is very free of by-laws. The following brief record tells us much:—In 1223 Richard of Beseville and Joan his wife brought an assize of novel disseisin against Peter of Goldington and thirty-six others for land in Ravensthorpe. “And all of them come and confess that the tenement is the free tenement of Richard and Joan, but they [Richard and Joan] were not able to cultivate that tenement that year, for in that year the field lay fallow, and because contrary to the custom of the vill the plaintiffs cultivated that tenement, these defendants pastured the corn when it had sprouted.” Richard and Joan are not at pains to deny the custom; they abide the judgment of the court. “And therefore it is considered that the said Richard and Joan remain in their seisin and that Peter and the others be in mercy.”285 We would willingly know more of this case; but on the face of it we seem to read that a freeholder cannot be compelled by mere custom to allow his neighbours to pasture their beasts on his land, and that, to say the least, “there cannot be a custom for inhabitants as such to have a profit a prendre in the soil of another.”286 To justify his act each of the defendants should have prescribed for a right of pasture, and prepared himself to prove that he and his predecessors had enjoyed such right time out of mind. But to require this is to deny the title of the community, to make each member of it plead and prove his own title; what is more, it is to require of him a difficult task. And so with the force of by-laws; what we read will make us think that against the freeholder they are weak. In the name of a custom or by-law the “community” of a Nottinghamshire township turn their beasts onto the land where the parson has grown a crop; they are told that this is manifestly wrongful and not to be supported by any by-law; they must pay damages.287 Some small power of regulating the rights of common belonging to the freeholders we may allow to the manorial court and its by-laws, but to all seeming it was small.288

But the cases of freeholders holding land within a manor if they are important, and by no means uncommon, are (it may be said) not sufficiently numerous to disturb the reign of communalism.Communalism among the villeins. The freeholder, though he is in the township, is hardly of the township; he does not share all the communal burdens; he is not “at scot and lot” with the township.289 The “community of the vill” is generally a body of men whom the lawyers call serfs, who have been reduced to something that is very like serfage by the action of their lords, and these men, who must be treated as the normal shareholders in the village, form a community, a commune, something that might not unfairly be called a corporation.

The villein community.Certainly there is truth in this. Between the various members of the village community which is also a villein community there is a strong bond of economic interdependance. Not only do they cooperate when they are tilling the lord’s demesne, but in all probability there is cooperation in the culture of their own holdings. Very seldom will the peasant be able to plough his strips without the aid of his neighbours; he will not have oxen enough.290 In some manors a tenant is bound by the express terms of his tenure as entered upon the court rolls to discharge, not only the duties which he will owe to the lord, but also the duties which he will owe to his neighbours;291 and we may find a man forfeiting a tenement because he will neither dwell in it nor cultivate it nor “do any neighbourliness to his neighbours”:292 that is to say, he will take no share in the communal duties. In accordance with this idea we find that the lord treats the community of the vill as an entity that has duties towards him. It is constantly falling into his mercy for breach of duty; it is amerced for coming late to court, for committing waste, for damaging his crops, for not cleansing the pond, for not selling him poultry, for not having a common pinder, for not repairing the sheepfold, the mill, the smithy, when commanded to do so.293 All the tenants of the vill owe one mark for an axletree delivered to them and lost by their default.294 The lord sells the herbage of his land to the tenants of the vill, he leases the demesne land to them as a body. The community contracts with him and with others. The community of the vill of Monkton, except T. T. and W. T., is compelled to pay damages to W. S. for damage done in his corn.295 On the other hand, Fair John has broken a covenant with the community of the vill of Wolviston by not paying the shepherd his salary, to the damage of the community, 6 s. 8 d.296 All manner of commands are given to the community, and the community itself makes all manner of by-laws (byrlawes, bileges).297 To mark off the sphere of the commands issued by the lord or his steward from that of the by-laws made by the community would be hard: as hard as to mark off the sphere of royal ordinances from that of parliamentary statutes.298 The lord is a constitutional king, and, when there is to be drastic and permanent legislation, he acts with the counsel and consent of his court; but still over the villeins and the villein tenements he is every inch a king. If the common is to be stinted, the consent of the court will be obtained; but a simple injunction will serve to tell all the tenants that they are not to keep geese in the vill,299 not to buy beer save at the lord’s brewhouse,300 not to sell growing crops,301 that they must offer their fish and poultry to the lord before they look for other purchasers,302 that they must find beds for his officers,303 that they must not associate with John Lollis, who has made too free with his knife,304 that they must not sue in other courts,305 that they must not throw about such words as nativi or rustici, though nativi and rustici they assuredly are.306 Indeed here lies the legal possibility of all this communal organization of the township’s economy. When the freeholders are left out of sight, it appears as a mass of villeins, or at any rate as a mass of men holding their lands by villein tenure. Let one of them rebel against the community, its customs or its by-laws, his body, it may be, is safe against imprisonment or exile (exile from the vill is by no means uncommon),307 but his land is at the lord’s mercy and will be taken from him, the community sanctioning and applauding the punishment.308

The freeholders and the village.In dealing with freeholders one must be careful, otherwise they will be off to the king’s court, which shows little favour to restrictive customs and by-laws, which will not open its doors to the community as such, but will make each individual asserter of communal rights answer why he has entered on another man’s soil or impounded another man’s cattle. Of course there can be no talk of enforcing against freeholders the mere commands of the lord, even though they be backed by the common assent of the township, at all events when such commands have nothing to do with the tenement. The freeholder may sell fish and poultry to whom he pleases; he may associate with John Lollis if he pleases, provided that John be a lawful man; it will be difficult to make him take his corn to the common mill,309 impossible to make him lend the steward his bed. But further, as we have already seen, it will be by no means easy to diminish his right of pasture or to prevent him from cultivating his land when and how he chooses if he can do this without trespass. When injunctions are laid upon the vill, when by-laws are made for the vill, the freeholders must be treated as exceptions. It is ordained that no tenant of the vill of Ferry Hill shall put horses in the oxen’s pasture, save the four liberi, each of whom may put there the horse on which he rides.310 All the tenants of the same vill, except the four liberi, are amerced because they refused to have a common reaper appointed for them by the lord’s officer.311 The mill fell into disre-pair. In 1366 order was given to distrain the free tenants to repair it, while all the other tenants were ordered to repair it by the next court day. In 1368 the freeholders, despite all orders for distraining them, had not done their share of the work; the customary tenants had done theirs.312 But of the exceptional position of the freeholders we have said enough; over the customary tenants, especially if they are unfreemen, the village court has great power, for it is the lord’s court. The lord can treat them as a community because he can treat them as villeins.

Communalism and collective liability.Still it would be easy for us to overestimate the communalism that there is in the vill, even when there are no freeholders to be considered. In the first place, we must notice that mere collective liability for transgressions implies little communalism, little permanent organization, while it certainly does not imply, though it does not exclude, the idea of corporate unity. If the vill can be fined and amerced for neglect of duties owed to the state or to the lord, so also the county and the hundred can be fined and amerced for false judgments, for murders, for robberies; but yet it has no common purse, no property. The county community has no property; the hundred community has no property. So likewise the township normally has no property. When a judgment for damages, fine or amercement is given against it, this “it” at once becomes a mere mass of individuals who are jointly and severally liable for the whole amount, while, as between themselves, their proper shares are settled by the system of commensurable tenements; all virgaters pay equally, all cottagers equally.

The community as farmer.Even when the manor is farmed by the villeins, as is sometimes the case, we may overstate the degree of communalism that there is in the arrangement. Sometimes the king lets one of his manors to the men of that manor;313 sometimes other lords do the same. The lease in such a case seems generally to have been a lease at will; but there may have been some places with no pretensions to be called boroughs where the men of the vill farmed the vill in fee. Sometimes the lease, if such we must call it, seems to have comprised all the sources of revenue that the lord had in the manor, sometimes some of these were excepted out of it. Thus the Prior and Convent of Worcester have a manor at Hallow; “the court” with the appurtenances, and two carucates of the demesne have been let to the villeins at a corn rent together with the meadows and casualties and heriots and the villeinage,314 though the convent still retains in its hand a barn, a moor, some meadow and some arable land. But we must not jump to the conclusion that the villani are carrying on the cultivation of the demesne land as “a joint stock affair” by means of beasts and implements which belong to them in common or to a corporation of which they are the members. At Hallow the arable part of the demesne which has been handed over to them seems to be broken up into physically distinct shares, each of which is held by an individual villanus at a several rent. The upshot of the arrangement seems to be this:—the villagers, instead of being placed under a bailiff of the lord’s choosing, are given the right to elect their own firmarius, and to him each pays the rent due from his ancient villein tenement and also the rent due in respect of any part of the quondam demesne that he has taken, and out of these rents, the profits of the court, and such casualties as heriots, the elected farmer must pay “the farm” of the manor.315 The lord obtains the joint and several guarantees (if we may use so definite a term) of all his tenants for the whole “farm.” If the farmer cannot pay the rent, the lord can attack all or any of the tenants; if on the contrary the farmer occasionally makes more than the “farm,” very likely he keeps the surplus to himself or possibly it is expended in festivity; if a surplus becomes normal, then the rents of the individual tenants will perhaps be reduced. But the lords, we may be sure, took good care that these ventures should not be very profitable.

The manorial custom gives several rights not communal rights.But, to return to the usual case in which there is no farming, we see that the