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CHAPTER III: Jurisdiction and the Communities of the Land - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 1 
The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 1.
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Select bibliography and notes by Professor S. F. C. Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I. Reprinted by permission of Cambridge University Press.
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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.
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
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
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.
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
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
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.”
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 rights given by the manorial custom are, at least for the more part, several rights given to individuals. The tenant in villeinage holds his house and his virgate by a title that is in no sense communal, and to this tenement are annexed rights of pasture, customary rights of pasture; he enjoys them, not because he is an inhabitant of the vill, but because they are annexed as appurtenances to the tenement that he holds. He transmits an inheritance to his heir as the freeholder does, nor, so far as we can learn, does custom give the court much power to regulate these rights. When a statement of them is made and enrolled, it generally professes to be, not a new ordinance, but an ancient custom, and the function of the by-laws that are made is, at least in theory, rather that of confirming and sanctioning old, than that of introducing new rules, though new rules can be made from time to time about minor matters.
Rights of the township disappear when examined.Looking at the vill from the outside, contrasting it with other vills, men naturally use phrases which seem to attribute rights to the community as a whole. The township of Sutton, or the community of the vill of Norton, is said to pasture its or their cattle (often enough the verb that follows villata is in the plural number) over a particular moor. But just so a sheriff’s bailiff will be charged by jurors with taking the beasts of the vill of Weston. The township as a community has no beasts; the beasts that have been taken belonged in severalty to certain individual men.316 Even so with the rights of pasture; on analysis they are found to be the rights of certain individual men; they are exercised in common, but they are several rights.
Co-ownership and corporate property.Lastly, when, as may sometimes happen, the ownership of a tract of land seems to be attributed to a community, we have still to face that difficult question which has of late been exercising the minds of continental historians:—Have we before us a corporate unit or have we merely a group of co-owners?317 England affords but few materials for an answer to this important question, for anything that even by a stretch of language could be called a communal ownership of land, if it had ever existed, had become rare and anomalous before the stream of accurate documents begins to flow. But what we see will tend to make us believe that it was rather as a group of co-owning individuals than as a corporation that the members of the vill thought of themselves when they had a chance of applying either the one idea or the other.
An illustration.The manner in which the “quasi-corporateness” of the township was dissolved at the touch of law may be illustrated by a story from Dunstable Priory. In 1293 the Prior brought an assize of novel disseisin against seventeen defendants concerning land at Toddington. Some of the defendants confessed themselves the villeins of John Peivere; others, who were freeholders, sought to justify what they had done. Thereupon the Prior pleaded that the lands in question, which seem to have consisted of many disconnected strips, had been in the seisin of the men of the township of Toddington, and that they by their unanimous will and assent enfeoffed his predecessor, Prior Simon, to hold to him and his successors for ever. The jurors endorsed this statement, adding that all the persons who had any right in the said land were congregated in one place at a court held at Toddington, and with one consent granted the land to Prior Simon and his successors, at a rent of six pence a year payable to the said men of Toddington. Prior Simon (the jurors say) held the land and paid the rent; the present Prior for several years held the land and paid the rent; the defendants have dispossessed him.318 The Prior recovered his seisin. Now this was a possessory action; the Prior had only to prove (and he did prove) his seisin and disseisin; the soundness of his title was not in question. Still his title was a feoffment by the men of the township made in the court of Toddington. But then we also learn that when this feoffment was made the lord of Toddington, John Peivere, was an infant in ward to the queen. The men of Toddington who were defendants in the assize relied on this; their case was that the Prior obtained the land, not from them, but from the queen’s bailiff. Then the Prior by expending a considerable sum obtained from John Peivere a confirmation of the land “into which we had entry by the community of the men of Toddington,” and for the future the Prior “by the attornment of the men of Toddington” paid the rent of six pence, not to them, but to their lord.319 We see therefore the men of Toddington making a feoffment, the Prior dealing with them as capable of making a feoffment, of receiving rent, and then we see this title melting away before the claims of the lord. But further, we see the defendants endeavouring to avoid a feoffment made by the community in its court, and one of the reasons that they urge is this:—When the feoffment was made, some of us were under age. Such a plea gives us an instructive glimpse into their minds. The men of Toddington suppose that they have land; they ignore their lord. Let us do the same; let us suppose that John Peivere’s rights have been gained by modern usurpations. What then, we may ask, is the men of Toddington’s theory of their own title? That they form a corporation? That “the community” in its court can alienate its land? No, but that they hold this land as co-owners, and that unless every tenant is of full age and joins in the act there can be no alienation.320
The township rarely has rights.However, except by way of rare exception, the men of the vill do not hold any property as joint tenants or tenants in common. Each of them has his house, his virgate or croft; each of them has or may have certain rights of pasture, of turbary, of fishing or the like in the lord’s wastes or waters; but that is all. The consequence is that they rarely come before the courts as co-plaintiffs. This is not due to any speculative doctrine about the way in which corporations ought to sue. It is not due to the rule that an unincorporated group of persons cannot sue under a general name. At present there is no such rule. As we shall see below when the boroughs come before us, the courts are ready to listen to complaints preferred in the name of classes of men who have some common interest to assert; the lawyers do not yet demand the appointment of an attorney under a common seal. “The citizens” of A, “the burgesses” of B can sue; their mayor or their bailiffs attend the court on their behalf; and even so “the men” of C —which is a mere rural township, or which is a hundred—can sue and be sued, their bailiff or their reeve with four men will represent them. They can sue and be sued under a general name, if there is anything for them to sue and be sued about. But then this rarely happens. They hold no lands, they own no franchises, they, taken as a group, have no rights to assert or to defend. The great exception to this rule is that the practice of assessing taxes and imposing fines upon communities may give rights to a community. Thus we may read how certain named men of the hamlet of Bordesdon had to answer in the Exchequer to “the men of the vill of Little Hormead” for not contributing to a fifteenth; it was a disputed question whether this hamlet should contribute towards the amount assessed on Little Hormead or to the amount assessed on Braughing.321 Such disputes the exchequer must often have had to decide, and in so doing it considered that “the men” of a vill were sufficiently represented by a few of their number. So also one township in the fens would sue its neighbour for a contribution towards the cost of maintaining and repairing the sewers, and would base its claim on the custom and use of the marsh.322 But within the sphere of private law we seldom see the men of the vill joining to bring an action under the general name which covers them. Some exceptional cases may be found upon the plea rolls. The line which divides the men of a vill from the burgesses of a borough is being drawn not by speculative theories but by practical needs. There is great need for actions by “the burgesses,” for the burgesses have valuable franchises to assert, franchises which can hardly be regarded as the sum of the rights of individuals; but with the mere township it is otherwise. The community of the township is not incapable of suing, but it rarely sues, for it has nothing to sue about; it is not incapable of rights, but generally it is rightless. No lawyer’s theory keeps it out of the courts. What is lacking is not a common seal but common property.323
Transition to the boroughs.It is difficult to discuss these matters at length without making some disputable assumptions touching the origin of “the English village community” and its history in centuries much earlier than the thirteenth. Some see in those centuries free communities that are becoming servile, while others see servile communities whose servility is being alleviated. We incline, for reasons that have been elsewhere given, to think that the former is the truer view.324 But we do not regard the old community as a landowning corporation. That peculiar kind and degree of union which permits or begets a distinction between what is owned by many men ut singuli and what is owned by them ut universi is not primitive, nor native in our villages. It is slowly developed in our boroughs.
The city.Certain vills are more than vills; they are boroughs (burgi); certain boroughs are more than boroughs; they are cities (civitates). The latter of these two distinctions has little or no meaning in law. A habit, which seems to have its roots in the remote history of Gaul, will give the name city to none but a cathedral town.325 This usage is in general well observed. In 1302 the sheriff of Cornwall, returning the names of the burgesses of Launceston and Bodmin who are to appear in parliament, says that there are no cities in his bailiwick; the sheriff of Essex and Hertfordshire says the like when he announces the result of elections at Colchester and Hertford.326 However, the usage was not very rigid; Shrewsbury is called a city in a judicial record of Edward I.’s reign;327 at an earlier date Cambridge was called a city;328 and in Domesday Book the name city is given rather to county towns than to cathedral towns. But at any rate the civitas was also a burgus, the cives might be called burgenses, and the communitas civium or communitas burgensium was a villata and communitas villae.329
The vill and the borough.Now, at least from the early years of the thirteenth century onwards, the distinction between the mere villa and the burgus was a familiar, if not a very precise, outline of public law. At recurring intervals the justices in eyre came into the county; each vill was to be represented by its reeve and four men, while each city or borough was to be represented by a jury of twelve. Thus when at a later day the sheriffs were bidden to cause every city and borough to send representatives to parliament, they knew what the command meant. If, however, we could bring one of these sheriffs to life and cross-question him over the definition of a borough, very possibly his answers would disappoint us; very possibly we should get little more from him than—“This place is a borough, for it has always been treated as such; that place is not a borough, for I can not remember its having ever sent twelve representatives to meet the justices in their eyres.” If we could induce our sheriff to go behind practice, and tell us what in his opinion it was that made a borough to be a borough, he would probably refer us, not to just one attribute, but to many attributes. In particular, if we talked to him of incorporation or artificial personality, unless he were an unusually learned sheriff, he would be puzzled. He would tell us that the boroughs had franchises (libertates), some more, some fewer, and he would in the end refuse to consecrate any particular libertas or any combination of libertates as at once the necessary and the sufficient essence of a borough.
The borough and its community.We have not to write a history of the English boroughs.330 That task, even if accomplished only in outline, would be long, so various from first to last have been the fortunes of our towns. We shall merely attempt to detect the more important of the legal elements which make a borough something other than a mere rural township and to raise some of those questions which the coming historian must answer. He will, so we think, consider the borough from two different points of view, and indeed, were this possible, he should occupy both at the same time; for the borough is both organ and organism. On the one hand, we have here a piece of England which is governed in a somewhat peculiar way. To use our modern terms, there is within it a “local authority” of a somewhat unusual type and there is more “local self-government” here than elsewhere. On the other hand, we have here a community which differs from the other communities of the land in that it is attaining the degree and kind of organization which we call corporate, so that, for example, it will be capable of appearing as an individual landowner among individual landowners, as a single contractor and as a single wrong-doer. Neither point of view should be neglected. In a still recent past various causes have induced Englishmen to think of the borough much rather as a piece of the constitutional machinery of the English state than as an organism and a person that has life and property. Also it must be confessed that throughout the middle ages the central power was stronger in England than elsewhere and the boroughs served the state as its organs and its instruments. Still, if we ignore the peculiarly corporate character of the burgensic community, we fail to record one of the greatest moral and legal achievements of the middle ages, an achievement which made possible the countless and variegated corporations of modern days.331
Preliminary sketch of early history.In order that we may find a starting-point for what we have to say of the boroughs of the thirteenth century, we are compelled to premise a slight sketch of the boroughs of an older time. That it will be an imaginary sketch we fully admit; but some reasons have been given elsewhere for the belief that it is founded upon fact, and may be roughly true of those towns which set an example for others.332
Borough and shire.For at least a century and a half before the Norman Conquest, English law has known the borough as something different from the ordinary tún or vill. The typical borough has been (i) the burh, (ii) the port, and (iii) the moot-stow of a shire.333 (i) It has been a fastness and place of refuge whose earth-works have, at least in some cases, been maintained by the men of the shire. It may even have been in some sort a garrison town: the great people of the shire may have been bound to keep in it houses or “haws,” as they were called, and “knights” of the old English kind.334 (ii) A market has been held in it: that is to say, it has been one of the few places in which men might buy cattle and other goods without putting their necks in jeopardy; their bargains were attested by official witnesses and toll was taken from them. (iii) It has been the meeting-place, the moot-stow of the shire, and perhaps because it was the county’s town, it was in no hundred, but had a court of its own, a burh-moot or port-moot, which was co-ordinate with the hundred-moots. Moreover, a severe and exalted peace, the king’s burhgrið, had reigned within it. This seems to be in origin the peace of the king’s own palisaded homestead, and has been extended to those towns which are the military, commercial and political centres of national life.335
The borough as vill.But the borough has been a tún, and we may believe that in many cases its soil has been laid out in the old rural fashion: there have been wide open fields, meadows and pastures; there have been intermixed hides and yardlands. The borough community is a township, and, if in its moot it has the organization of a hundred, it none the less has for its territory several square miles of land on which corn is grown and beasts are depastured.
The borough’s heterogeneity.The texture of this community is unusually heterogeneous. We suspect that there are within it the knights or other dependants of the shire-thegns. As the military element becomes less prominent, these thegns will let their houses to chapmen and craftsmen at money rents, but will endeavour to maintain as long as possible a jurisdictional control (sake and soke) over their tenants. Also there may be free and lordless house-owners and land-owners in the borough who increase this heterogeneity by commending themselves, their houses and their lands to the king or some other magnate: in particular, many will pay a little haw-gavel or land-gavel (house-rent or land-rent) to the king in return for his patronage. Thus it is likely that the borough, if it flourishes, will escape the fate that awaits many a common village: it will not as a whole become the king’s or any one else’s manor. On the other hand, strips of its arable fields may be worked into manors whose centres lie either within or without the town-ditch. At this point numerous variations are possible; but, whatever happens to the arable, it is probable that the town community will retain some control over and use of the green pasture, and also that just in these vills the claims upon the pasture will begin to take a new shape. The “men” of important people will be turning out their horses to graze and yet have no interest in the arable, and the opportunity for sale and purchase of corn and hay which the market offers may cause a rapid disintegration of the old self-sufficing hides and yardlands. Then in having a moot of its own, a moot established by national law, whose profits are received by king and earl, the borough has an organ capable of deeming dooms about this pasture, and, at least in some instances about the arable land also, and this power of “right-speaking” cannot be sharply distinguished from a power of regulation.
The borough and the king.Thus to the eyes of the Conqueror’s officers, whose heads are full of the formula of dependent tenure, the old borough presents itself as a knot that cannot be untied. Unit it is; but they scruple to describe it as being Terra Regis, and clearly it is not any one else’s land. It is not part of any one’s fief, and yet it is not like one of the king’s demesne manors, for (since commendation is hardening into tenure) there are in it pieces of many fiefs. The king is not its landlord, except in that wide and lordly, rather than landlordly, sense in which he is landlord of all England. On the other hand, the king, though sometimes in conjunction with the earl, is the immediate lord of those institutions which give the borough its specific character: lord of its court and lord of its market, with a large fund of liberties to bestow upon its burgesses. As time goes on, the burgesses, who are coalescing in a new type of community, will be treated as an unit which has no lord but the king, and will pay tallages when the king’s demesne manors are tallaged: but they will make their profit of their communal “immediacy” by depriving all landlordship of its lordly character and reducing it to the level of a mere right to rent.336
The borough court.As an organ, the borough has its moot, which is held by the sheriff or some portreeve who is his farmer. Perhaps all the freemen or the house-holders are entitled and bound to sit as doomsmen. On the other hand, in some boroughs which have been Danish, there seems to be a group of hereditary law-men or doomsmen. Also we must reckon with the possibility that the military organization of the borough has caused the formation of wards (custodiae), at the head of each of which stands an alderman whose office, like every other office, is apt to pass to his son. But the little evidence that we have suggests that a close and definite college of doomsmen was exceptional, and we have small warrant for supposing the existence of any legally constituted “patriciate.”
The borough and the gilds.The burghal community being heterogeneous, voluntary societies are formed within it. Gilds spring up in the town. The festive and religious gild may be very old, may even be traced back to the days of heathenry;337 it is likely to flourish in the soil of a borough. In particular, the “knights” (of the old English type) who are in the borough form gilds, and the knights’ gild may become an important factor in the life and even in the government of the town. The sphere of association and private enterprise cannot at this time be marked off from the sphere of government and public power. The contractual or associative principle when it first manifests itself is unruly; we see how the vassalic contract threatens for a while to make itself the one bond between men; and even so a club of thegns or knights, or at a later day of merchants, may aspire (the phrase must be pardoned, for it seems apt) to “boss” the town.338 But at any rate gilds and gild-like structure have a great future before them in the boroughs.
Transition to the thirteenth century.It is probable that some of these traits of the old English borough were vanishing or ceasing to be distinctive even before the Norman Conquest. In the new age that then opened many changes tended to produce this effect. Castle-guard was substituted for the older burh-bót; markets were established in many places; the ordinary village had a court, a manorial court; the old burh-grið was merged in an ubiquitous and homogeneous royal peace. Another class of boroughs was coming into existence, the enfranchised manors. Perhaps the free-tenure of houses at fixed and light rents which was to be found in the old shire-towns, served as a model and generated the idea that, where such tenure is, there is a liber burgus; but just in this quarter a French strain may be sought and perhaps detected.339 Be this as it may, the number of so-called burgi increased rapidly. A lord created a liber burgus if he abolished villein services, heriot and merchet, and instead thereof took money-rents, as, for example, twelve pence from each house. Moreover, he might allow his tenants, his burgenses, to farm the court, to farm a market bestowed on him by the king, and to elect a bailiff. It was difficult or impossible to mark the lowest degree of privilege or exceptionality which would make a township no mere township but a borough.
The inferior limit of burgality.We may dwell upon this difficulty for a short while since it illustrates the slow growth of that new type of community which we call municipal and corporate. We cannot define a borough as a vill in which burgage tenure prevails, for of this we hear in places which were not called boroughs.340 We cannot say that a borough is a vill which is held in farm by the men of the vill, for this “self-farming” may be found in some little villages. Nor again can we say that the borough is a township exempt from the jurisdiction of the hundred court; many a mere rural township was quite as extra-hundredal as was the normal borough, indeed it might well be more exempt from the interference of the county officers than was many a small borough, for its lord (let us say the Abbot of Westminster) had “the return of writs” in all his manors. Nor again can the test afforded by the practice of the eyres have been applied except in a one-sided way. Probably a place which had never sent twelve, instead of four, men to meet the justices would have had to show some recent grant of new liberties before it could pretend to be more than a township; but there seem to have been in some counties many places which sent twelve men to the eyre and which yet were not called boroughs or summoned to send burgesses to parliament.341 And when the parliamentary test became applicable the line that was drawn was irregular. It has been calculated that under the first two Edwards 166 boroughs were summoned once or more often; that on an average under Edward I. no more than 75, under Edward II. no more than 60 boroughs were actually represented.342 At any rate the number rapidly decreased. That the sheriffs had an immense power in this matter is certain. In 1320 the sheriff of Bedford and Buckingham said that Bedford was the one borough in his bailiwick, though in 1316 five others had been summoned, namely, Amersham, Wendover, Aylesbury, Wycombe and Marlow.343
Representation in parliament.The truth seems to be that the summons to parliament engendered a force which diminished the number of the would-be boroughs. Theretofore it had been well to be a borough; the townsfolk when they went before the justices in eyre had enjoyed the privilege of “swearing by themselves,” of not being mixed up with “foreigners”; but now they were called on to send to parliament representatives whom they would have to pay:—at such a price they would no longer be burgesses. Another force was making in the same direction; abbots and other far-sighted lords were beginning to discover that it was not well to have burgesses. Long ago the men of Bury St. Edmund’s had been freed from all servile works; the vill had received nomen et libertatem burgi from the abbot; a portman-moot was held in it; Abbot Sampson had chartered it.344 In 1302 the sheriff of Suffolk bade it return members, sending the mandate, as he was bound to do, to the abbot’s steward. The steward made no answer.345 Then from 1304 we hear how the men of Bury have been making a “conspiracy” and holding “conventicles” among themselves; they have been pretending to have an alderman and a merchant gild and to be “free burgesses.” They must pay heavy damages to the abbot, and those who are too poor to pay must go to prison for a month.346 They have not a gild merchant, nor a community, nor a common seal, nor a mayor. Thus Bury soon drops out from the list of English boroughs, though long before this, Jocelin of Brakeland, no friend of the townsfolk, had allowed it “the title and franchise of a borough.”347 The short-sightedness of some burgesses who would not pay representatives, the far-sightedness of some lords who just at the critical moment perceived that burgesses would not be good tenants, the inertness of sheriffs who did not care to enter, for no gain to themselves, upon an arduous struggle, the indifference of the king who had no need of the men of little towns, all made for the same result. Before the end of the fourteenth century the number of towns represented in parliament had fallen to a hundred, and these were most unevenly distributed among the various counties. We are not called upon to explain this phenomenon, for it belongs to the fourteenth century; but it forcibly suggests that in the thirteenth no strict definition of a borough was possible. And in the end what is the legal definition? The effect is put in place of the cause:—“A burgh is an ancient towne, holden of the king or any other lord, which sendeth burgesses to the parliament . . . and it is called a burgh because it sendeth members to parliament.”348
The typical boroughs and their franchises.Every note in the gamut whose two extremes are the mere rural township and the great community of London might be found and sounded by the patient historian, and some of the small boroughs, whose inhabitants never attain to a truly urban life, are of great interest as archaeological museums; but we must here glance only at the towns which lead the van, and on the whole we shall find that those old English shire-boroughs, of whose early days we have spoken, remain in the front rank throughout the middle ages, though a few other towns, especially some seaports, become prominent. We may first look at the “liberties” or “franchises” which are bestowed by the charters of the twelfth and thirteenth centuries, and then we may say a little of the corporate character of the borough community.349
Jurisdictional privileges.(i)Jurisdictional privileges. Usually there is no need for the charter to grant the right to hold a court, for the court exists already either in the form of an ancient borough-moot or in that of a manorial court. Indeed one of the “liberties” that the burghers sometimes seek is that their court, their port-moot, or borough-moot, shall not be held too often—not more frequently than once a week. On the other hand, a common clause provides that the burgesses, except the king’s moneyers and servants, “shall not plead beyond the walls” of the town, unless it be for tenements which lie elsewhere. Then sometimes a further attempt is made to define the competence of the court in a manner advantageous to the burgesses:—if a debt is incurred in the town, the plea upon it is to belong to the borough court. Franchises of this kind are of importance in the history of the boroughs because they give occasion for communal action. If a burgess is impleaded in the king’s court, it behoves the officers of the borough to appear there and “claim their court,” and any negligence in this matter is likely to be prejudicial to the borough as showing that it is not “seised” of its franchises. Not unfrequently the burgesses enjoyed in their court a procedure differing from that of the royal tribunal; they were protected against innovations and reforms. When we find that trial by battle is excluded, we may think that civic is in advance of royal justice; when on the other hand we find that trial by jury is excluded, and that the accused burgess of the thirteenth century even in criminal cases will wage his law, while the non-burgess must abide the verdict of burgesses, we know that from Henry II.’s day onwards civic has been falling behind royal justice, has been becoming antiquated and selfish.350 This may not always be its own fault; it has not been permitted to improve itself; it is a chartered justice and must carefully keep within the limits of its charter.
Civil jurisdiction.Valuable though these courts may have been to the townsfolk, they were not suffered to do much harm to the cause of common law. Some of the boroughs developed a possessory procedure of their own; an “assize of fresh force” took the place of the king’s as-size of novel disseisin;351 but even in London a proprietary action for a burgage was begun by the king’s writ of right, and when that writ was sent to less favoured towns it contained the usual threat of the sheriff’s interference.352 The party dissatisfied by the judgment of the borough court could bring the matter before the king’s tribunal by a writ of false judgment. From time to time justices commissioned by the king held a session at St. Martin’s le Grand to correct the errors of the London husting. The Londoners held their privilege so high that they would refuse to answer even in the court of a fair that they frequented: burgesses of other boroughs, though they had the same words in their charters, were less haughty or more politic.353
Criminal jurisdiction.The criminal justice of the boroughs seldom stretched to any higher point than that of infangthief and utfangthief, or, in other words, the punishment of criminals caught in the act. The boroughs had to appear before the king’s justices in eyre. It was privilege enough for them that they should appear there by twelve of their own men as though they were hundreds, and that thus no foreigners should make presentments about what had happened within the walls. Even the city of London underwent visitations; the gaol of Newgate was delivered by royal commissioners, and an occasional eyre held at the Tower would serve to bring the citizens to reason, for they were like to find that in the eyes of the king’s advocates their choicest liberties had been endangered by abuse.354
Return of writs.Some of the more important boroughs had also acquired the franchise known as “the return of writs.” It was valuable to them, for, so long as they had it not, the sheriff’s officers were constantly entering the town in order to serve writs and execute the processes of the king’s court. Nevertheless it was not acquired until late in the day. John was, to say the least, chary of granting it.355
Privileged tenure.(ii)Tenurial Privileges. When the period of charters begins, burgage tenure already prevails in many of the large towns; the townsfolk already hold their lands and houses at money rents, and merely as tenants they require no further favours. Otherwise is it when what has hitherto been but a rural manor is to become a liber burgus. In such a case there will be a commutation of services, a release from agricultural labour. Sometimes a free power of alienating his tenement is conceded to every burgess, sometimes it is distinctly said that he may make a will or make an heir; but in general the power, very commonly assumed, of bequeathing burgage tenements “like chattels” seems to have been ascribed to custom rather than to express grant.
Mesne tenure in the boroughs.In the great towns the existence of a court enjoying royal franchises seems to have reduced the mesne tenures to political insignificance. At the time of the Conquest the burgesses of a county town were in many cases a heterogeneous mass; some of them held directly of the king, but others were the tenants, the justiciables and the burgesses of this prelate or of that baron. Seldom were the men of such a town “peers of a tenure”; seldom was the soil an unbroken stretch of royal demesne. Not only might its bounds comprise many a private soke, but some of the townsfolk were accounted to belong to the rural manors of their lords. When therefore the king under pain of his full forfeiture ordains that none of them need answer in any court outside the borough for any tenement within the borough, he is practically detaching these burgesses from the manors to which they have belonged and is defying the principle of feudal justice. The men who have settled round his burh and his market are his burgesses, whosesoever tenants they may be. Here and there a lord who held some considerable quarter of a borough might keep a court for his tenants, and, as he had acquired for himself and them some immunity from taxation, they would refuse to mix with, to be at scot and lot with, their fellow townsmen. But a small group of men who formerly were reckoned to belong to some distant manor would soon be merged in the general mass of burgesses. They would still pay rent, not to the king, nor to the king’s farmers, but as of old to their lord; still no other connexion would bind them to him, and he would soon sink into the position of a mere recipient of rent.356 Where tenements can be devised by will escheats are rare; the rights of the mesne lords are forgotten, and then it is said that if any tenement in the borough escheats, it escheats to the king. Such in Edward II.’s day was the rule in the city of London where many “barons” had once had sake and soke.357
Seignorial rights in the boroughs.The rapidity of this process varied from borough to borough. In some of the smaller towns that were chartered by mesne lords it never took place at all. The burghal court was a seignorial court, which assumed now the form of “court leet” and now that of “court baron”; and such it continued to be until the end. But even in some great boroughs seignorial justice was a hardy plant. In Stamford, which was an old royal borough, though it had come to the hands of the Earl of Warenne, four prelates and five other lords claimed to have court of all their tenants; and this in the year 1275.358 In London nearer the beginning of the century there were many sokes, and it seems to have been usual that an action for land should be begun in a feudal court, and should only come before the civic husting after a default in justice had been made.359 Even in Edward II.’s reign many lords have to say by what warrant they claim franchises in London. The Bishop, Dean and Chapter of St. Paul’s have three sokes in Cornhill, Bishopsgate and Holborn where they exercise the right of infangthief, though the actual hanging is done outside the city at Finsbury and Stepney.360 The Prior of Trinity Church, as representing the estate of the old English Knight-gild, holds the Portsoken and is an alderman by tenure; even civic jurors admit that his men and tenants sue and are sued in his courts.361 There is feudalism in the gildhall itself. Robert FitzWalter still represents the lords of Baynard’s castle, though the castle itself has been sold to the Archbishop of Canterbury. He must be summoned to every meeting of the common council; when he enters the gildhall, the mayor must rise to do him honour, and while he is there all the judgments that are to be delivered shall be delivered by his mouth. Such at all events is his opinion.362
Customary private law.At a few points of private law the borough custom would swerve from the ordinary rules. Often the tenant of a burgage could give it by last will, at least if he had not inherited it, for some customs drew a distinction between inherited and purchased tenements. Then the customary rules of inheritance might differ from those of the common law. A custom which gives the whole tenement to the youngest son has gotten the name “borough English,” and has therefore been supposed to be peculiarly appropriate to the circumstances of townsfolk. Really, however, this name seems due to a single instance. At Nottingham in the days of the Conquest a new French borough grew up beside the old English borough, and the customs of the Burgus Franciscus as to dower, inheritance and the like had to be distinguished from those of the Burgus Anglicus.363 Among the customs of the “borough English” was the rule in question, and after the “borough English” of Nottingham the lawyers baptized it. As a matter of fact, there is no reason for supposing that it had a burghal origin. It is not very often found in the boroughs, while it was common in rural manors. Nottingham supplies us also with a rarer custom, namely (we must borrow a term from France), the retrait lignager, the right of the heir apparent (or perhaps of any kinsman) of one who sells his tenement to come forward within year and day after the sale and buy back the tenement at the price given for it.364 At Dover the expectant heir had to pay no more than nineteen shillings for every pound that the stranger had paid.365 On the continent of Europe such a right was common; a mitigation it was of old law which required the heir’s consent to an alienation made by his ancestor. The English common law seems to have leapt over this stage of development, and to have passed at once from the rules laid down by Glanvill, who in many cases requires the heir’s consent, to the state of things described by Bracton in which such consent is never necessary. Now in a borough we should look for a greater and not for a less power of selling lands than prevailed elsewhere, and it is not impossible that the custom of some boroughs fell behind just because at an earlier time it had been in advance of the common law. The borough obtains from the king a charter saying that if any one holds a tenement in the town for year and day, the claims of every person to that tenement shall be barred, unless he was in prison, under age or beyond the seas.366 The main object of this is to preclude the claims of expectant heirs. This puts the custom in advance of the common law of Glanvill’s day. But some boroughs stop here; Nottingham at least stops here for a while; its custom falls behind the common law and develops a retrait lignager. At Northampton we find not only the retrait lignager, but also the retrait féodal.367 Then, again, the custom sometimes provided for a landlord, whose rent was in arrear for year and day, a readier mode of ejecting his tenant than the common law would have given.368 But we do not find many peculiarities of this sort.
Freedom of serfs.In this context we may mention another privilege that was sometimes granted to a borough:—the serf who dwells in it for a year and a day, at all events if he has become a burgess or a member of the merchant gild, becomes free, or at least cannot be claimed by his lord so long as he remains within the borough. In its origin this seems an assertion of royal right. The king treats his borough, the whole of his borough, as though it were one of his ancient manors. If a serf comes to dwell there, his lord must claim him at once or not at all, for the king will not allow the lords to interfere with his lands. As regards a borough, an express declaration of this principle is necessary, for, as we have seen above, the land within the walls of one of the greater towns was seldom an unbroken stretch of royal demesne land. Nevertheless “the borough” as a whole is the king’s, and he announces that those who come there and form part of the burghal community, although they may not be holding their burgage tenements immediately of him, are to enjoy the security that is conferred by the soil of the ancient demesne.369 The first declarations of this right are pitched in a royal key. Henry II. in his charter for Nottingham declares that “if any one, whencesoever he be, shall dwell in the borough a year and a day in time of peace, no one, except the king, shall have any right in him.”370 We are not told that the serf is to be free; but what remains in the king’s hands for year and day becomes the king’s. As the borough grows more independent of the king, the rule begins to take the shape of a privilege conceded to the burgesses instead of being a royal prerogative. The burgesses are glad of the concession; it keeps their town free from the interference of foreigners, and someone thought fit to add to the Conqueror’s laws a clause stating in the widest terms that, if a serf lives for year and day in a city, borough or walled town, he shall become free.371 Nevertheless, it would be a mistake to think that the townsfolk wished to obliterate the distinction between free and bond; on the contrary, they were careful to prevent men of servile birth from becoming citizens.372
Freedom from toll.(iii)Mercantile Privileges. The borough is not merely a governmental and in a certain measure a self-governing district, it is a possessor of mercantile privileges, and, as will be remarked below, it is chiefly in this character that it becomes a person in the eye of the law. When a borough had obtained the right to farm itself, one of the most important sources of its revenue was toll. Of this we must speak hereafter when we discuss the firma burgi. Sometimes this fount of income was protected not merely by a rule of common law, which would have prevented even the king from setting up a new to the damage of an old market, but also by a royal ban which compelled the folk of the neighbourhood to do their buying and selling in the borough.373 But those who took toll were anxious to be quit of toll, and perhaps the burgesses regarded freedom from toll as the most vital of all their rights. Already in Domesday Book we read how the man who was domiciled in Dover and there paid the king’s dues was quit of toll throughout all England.374 Subsequent charters threw about such favours with a liberal hand; sometimes the burgesses were to be immune throughout all England, sometimes they carried their immunity into all the king’s lands beyond the sea. In our eyes, it may be, the best outcome of this privilege was that it provided an ever-recurring theme for inter-municipal litigation and aroused in the boroughs a consciousness of their personality.
The Firma Burgi.(iv)The Firma Burgi. Often the borough farmed itself, or perhaps we had better say for the present that the burgesses farmed the borough. They might hold their town under a lease for years or during the lessor’s pleasure; they might hold it in fee farm: that is, under a perpetual lease. Important as this step towards independence might be, it was not taken by some towns of high rank until late in the day; it would seem, for example, that the citizens of Winchester did not obtain a perpetual lease or grant of their city until the reign of Edward III.,375 while on the other hand at a much earlier date many a rural manor was being farmed by “the men of the manor,” though hardly farmed in fee.
What was farmed?Now in these cases the charter says that the king has granted the burgus or the villa to the burgesses.376 What was the effect of such a grant? As we understand it, “the burgesses,” taken in some collective fashion, were to step into the shoes of the sheriff. They were to be entitled to certain revenues which he had previously collected. These would be chiefly the tolls, the profits of the court and such house-rents as had therefore been paid to the sheriff as the king’s farmer; and there might also be the profits of a royal mill or the like. On the other hand, the king had not parted with all his land-lordly rights. The burgesses, taken collectively, had not obtained a place in the scale of land-tenure. They had not become collectively or corporatively the domini or the tenentes of the soil that lay within the boundary of the town. This seems to be proved by the law of escheat. Each burgess still holds his tenement either of the king in chief or of some other man; he does not hold of the community, and, if there is an escheat, the community will not profit by it.377 This is the situation that is set before us by that minute description of Cambridge which appears upon the Hundred Rolls. “The burgesses of Cambridge hold the vill of Cambridge with all its appurtenances in fee farm of the king in chief, as in meadows, pastures, mills, waters and mill-pools with all franchises and free customs belonging to the said vill.” Nevertheless the burgesses, taken collectively, are not conceived as being the lord of the individual burgess or of his tenement. If he pays rent to them, or rather to their bailiffs, the phrase used with wearisome iteration is—not “he holds of the borough,” nor “he holds of the burgesses,” but—“he pays to the bailiffs of Cambridge, who hold the said vill at fee farm of our lord the king, so many pence for haw-gavel, or so many for land-gavel towards their farm.”378 Bonenfant the Jew held an open place in the town of Cambridge; but he has lately been hanged for clipping coin, and that place has escheated, not to the burgesses, but to the king.379 The general theory of the law seems to be that, in becoming a farmer, the burgesses become rather a bailiff than a tenant, though a bailiff who, like many other medieval bailiffs, has to account each year for a fixed sum and may make a profit or a loss out of his office. In short, when a “borough” is granted to the burgesses, this “borough” belongs to the category of “things incorporeal,” a category which comprises “counties” and “hundreds.” When a man is appointed sheriff, the king commits to him “our county of X ”; and so the king will grant to a baron “the hundred of Y. ” The sheriff will not own the soil of the county; the lord of the hundred need not be tenant or lord of the soil of the hundred; in each case what is given is not an ownership or tenancy of any land but a complex of royal rights and powers to be exercised within the limits of a certain tract.
The farm of the vill and the soil of the vill.This question is of some importance; we have heard of its being raised in these last times between a municipal corporation and a telephone company—Did the firma burgi comprise any ownership, any tenancy of the soil? Therefore we will add one further argument. The citizens of London farmed not only the city of London but also the county of Middlesex. Now, not only does no one suppose that the civic corporation has a place in the scale of tenure between every Middlesex freeholder and the king, but no one supposes that the civic corporation became the tenant of all the roads and open spaces within the boundary of the shire.380 So again, the citizens of York farmed the wapentake of Ainsty, and, if what was said be true, very ill they treated it. They sub-let it at an advanced rent to a bailiff, who used his subjects so vilely that they talked of selling their tenements and leaving the country.381 But, as we understand the matter, the citizens of York held the wapentake in the same sense that the archbishop might have held it without being owner, lord or tenant of a rood of land. Should a question arise about these matters in our own day, great weight would very properly be ascribed to acts of user,382 and (to say nothing of modern statutes) many boroughs now have ampler charters than those that were granted in the thirteenth century. But as to the historical question, we cannot think that the grant which made the burgesses firmarii of the burgus, made them domini or tenentes of the land that lay within the burgus.
The lands of the borough.(v)Property of the Borough. But the “borough” or “vill” which the king “granted” to the burgesses often comprised in some sense or another a large tract of arable and pasture lying without the wall or the ditch, for the borough occupied the shell of an old agrarian community. The charter will purport to concede the whole vill “with all meadows, pastures and waters thereto pertaining.” Now as regards the arable, this was holden by individuals and the most that the king could give away was his seignory. Apparently he did not give away even that; the escheats were still to come to him, though the burgesses might now receive such rents as had formerly been paid to the sheriff. As to the pastures, which were often of wide extent, it is very probable that no exact idea of ownership was yet applied to them. On the one hand, rights of common were being exercised over this land, and we may believe that such rights were no longer so closely connected with the arable as once they were, but were being more and more regarded as annexed to membership of the feudally heterogeneous burgensic community which in its moot had an organ for their regulation. On the other hand, the king was lord of the vill, and the right to “approve,” or make profit of, its waste was rather in him than in the community. This continued to be so even when “the burgesses” had become the farmers of their town, for the right of approvement was not one which the sheriff could have exercised for his own behoof while he farmed the royal revenues.
The intramural waste.The same seems to have been true of the intramural “waste,” and of this there was often a goodly supply which would be profitable at a later day. The walls, ditches, streets and open spaces of the borough were not as yet conceived to be “holden by” the community. They were still the king’s, and he who encroached upon them committed a “purpresture” against the king.383 The grant of the vill has not entitled the burgesses to approve this “waste”; a more explicit licence is requisite, and such a licence they will sooner or later obtain. The men of Bristol acquired it early; on the other hand we may find Edward I. specially authorizing the citizens of London to let certain vacant spots within the walls in order that the rents may be applied to the maintenance of the bridge,384 and other towns were asking for a similar permission at a much later time.385
The community and the waste.None the less, subject to this royal lordship, the waste, both intramural and extramural, had from the first belonged in some vague sort to the community, and there are instances in which the community dealt with it. Thus, for example, in 1200 the community of Ipswich granted that their twelve chief portmen might have a certain meadow for the support of their horses;386 and at an earlier time the men of Oxford gave an island to the alderman of their gild who gave it to Oseney Abbey;387 also we may find the men of Cambridge erecting a hospital on a piece of common land in the middle of their town.388 But before there could be much freely proprietary dealing with the pasture land on the part of the burgensic universitas, the rights of the commoners had to take the form of a mere usage which the corporator is permitted to make of the land which the universitas owns. So long as the rights of pasture are conceived to be rooted in the possession of arable strips or burgage houses, they are an impediment to those transactions, leases or sales, which would demonstrate that a corporation is owner of the soil.389 On the whole we believe that in the thirteenth century the burgensic community, taken as unit, was rarely drawing any pecuniary revenue390 out of the land which in this vague sort belonged to it, and seldom was there any land which belonged to it in any other sort: the community was but rarely a purchaser of land, and burgesses were not as yet devising land to a municipal corporation. A statute of Richard II. forbids the borough corporations to acquire land without licence, and proclaims the discovery that they are “as perpetual as men of religion.”391 When we consider that ever since 1279, and indeed at an earlier time, the churches had been debarred by law from augmenting their territories,392 we may draw the inference that only in the course of the fourteenth century was the attention of the king and magnates drawn to any diminution of their feudal revenues occasioned by the “perpetuity” of municipal corporations.393
The borough’s revenue.Moreover, it appears to us that the community or corporation of the thirteenth century rarely had any considerable revenue of which it could freely dispose. The farming of the vill was a more individualistic arrangement than we are wont to suppose. The burgesses were jointly and severally answerable to the king for the whole fee-farm rent; but, as between themselves, the plan was that their annually elected bailiffs should collect what the sheriffs had theretofore collected and should be solely liable if this sum fell short of that which was due to the king.394 Perhaps too the bailiffs were entitled to any profit that they could make; but we fancy that a normal surplus of income over expenditure was not to be looked for. In order to get rid of the sheriff from their court, the burgesses had promised a heavy rent.395 Thus the old revenue consisting of the haw-gavel rents, and the profits of the court and market, was no free revenue, but was appropriated to the satisfaction of a chiefrent which it would hardly meet. In course of time other sources of income reveal themselves; fees are paid by those who acquire the freedom of the borough; mercantile privileges are sold; bits of waste land are let to tenants; a treasurer or chamberlain begins to appear beside the bailiffs and to keep an account with the community; there is a common chest. But all this is the work of time,396 and even at the end of the middle ages the freely disposable annual income of a great borough was not very large.397 The growth of such an income, though it has as yet been little studied, is of much importance in legal history, for the town’s personality only begins to stand out clearly when “the town” has a revenue which is not going to be divided among the townsfolk.398
Chattels of the borough. If the community owned chattels, these must have been few and of no great value. Perhaps already some sword, some staff, some chain of office was handed on from mayor to mayor, and there may have been drinking horns and casks of wine and beer for which it would have been hard to find an owner in the world of natural persons. There was a muniment chest and there was a common seal. But it is not for the sake of such trifles as these that law will undergo the pain of giving birth to the juristic person. Sometimes, again, there would be a box with money in it; but, had a thief stolen box or money, we suspect that he would have been charged with stealing the proper goods and chattels of some natural man, the mayor or the chamberlain of the borough. That those who collect rents and taxes should misappropriate the monies that they receive is, if we believe the jurors, a common event; but no one, so far as we know, ever speaks in this context of theft or felony. We shall see in another chapter that the question whether the treasurer (1) owned the money and owed a debt to the community, or (2) merely possessed money that was owned by the community might long be shrouded from view.399
Elective officers.(vi)Election of Officers and Government of the Borough. Already Henry I. had promised the Londoners that they might elect a sheriff and a justiciar from among themselves.400 But London was in advance of other towns. Gradually some of the greater boroughs obtain the right of electing their reeve or their bailiffs, who however do not enter on their offices until they have been presented to and approved by the king’s justiciar. Sometimes this step is taken before the burgesses have obtained the right of farming the borough in fee. In such a case the bailiffs, though elected by the towns-folk, are still much rather the officers of the sheriff than the officers of the community. They begin to look more like the officers of the burgesses when the burgesses themselves have become answerable for the firma; but even then, as we have lately said, it is the bailiffs who, as between themselves and their fellow townsmen, bear the loss if the farmed revenues fall short of the king’s rent. Some towns stop here for a long time; many following the example of London buy the right to have an elected mayor. No doubt this step also was important. No doubt the Londoners, influenced by what was happening abroad, set great store by the election of a maior who should be the head of their communa; “come what might they would have no king but the mayor.”401 Even if we take no account of such aspirations as were never fulfilled, it was important that the town should have some one man as its chief; the anthropomorphic picture of a body corporate required that there should be a “head.”402 Still it seems clear that a large and wealthy city might get on well enough without a mayor; until 1403 the citizens of Norwich were content with their four bailiffs.403
Borough leets.Beyond conceding the liberty to elect mayor and bailiffs and the liberty to elect coroners “who shall see that the bailiffs of the borough deal justly and lawfully with rich and poor,” the charters of this age seldom define any constitution for the borough. They make no class of councillors, aldermen, chief burgesses; they do not say how or by whom the dooms of the burghal court shall be rendered. As we might expect, the active organ of the borough is rather a court than a council. The frankpledge system prevails in the boroughs. A view of frankpledge is sometimes held for the whole borough (a “mickletorn” it is called in some towns), whereat the mayor or the bailiffs preside,404 or else the borough is divided into wards or into “leets,” each of which has its separate court.405 The business of viewing the tithings and presenting offences seems to have been conducted within borough walls much as it was conducted in the open country. Naturally, however, the system of tithings sometimes took a territorial form; each small district of the town or each street had its tithing-man.406 Occasionally in boroughs which have little other organization a “court leet” will in course of time assume the character of a regulative and governmental organ of a humble kind,407 and in some large towns the lower orders will give voice in “presentments” to complaints against their rulers;408 but in its origin the leet or view of frankpledge is much rather a royal police court than a communal assembly.
The borough court.Then there is the old borough court holding frequent sessions. Often it sat once a week, and when “foreigners” were concerned it would sit from day to day. Often it had no other name than “the court of the borough (curia burgi)”; sometimes it was the “husting,” the “burwaremote,” “portmote” or “portmanmote.” Over it the mayor or the bailiffs presided, and perhaps in some places any burgess was capable of sitting in it as a doomsman. But the amount of business that it had to do would inevitably deprive it sooner or later of its popular character; the miscellaneous mass of burgesses would not easily be brought to do weekly suit of court. Already in Henry I.’s day there was in London a “husting” distinct from the “folk-moot.” Already before the Conquest there were twelve lawmen, twelve iudices, in some of the boroughs.
Court and council.In 1200 John granted to the men of Ipswich a liberal charter. In pursuance of its terms they forthwith elected two bailiffs and four coroners. But they did not stop there. They decided that there should be in the borough twelve chief portmen “as there are in the other free boroughs of England,” who should have full power to govern and maintain the borough and render the judgments of the town. Thereupon they chose twelve men,—among them were the four coroners, two of whom were also the two bailiffs—and these twelve were sworn to guard and govern the borough, to maintain its liberties and to render the judgments of its courts. Thereupon all the men of the town swore to be obedient to them and to every of them, save as against the king and the king’s power.409 We discover at a little later time that the twelve chief portmen hold their offices for life, though they may be removed for misbehaviour by the judgment of their fellows. Vacancies again are filled, not by popular election, but by co-optation.410 Now certainly it would be rash to draw any wide inferences from the few clear cases that come before us; nevertheless it would seem that very commonly some select body was formed, some body of twelve or twenty-four chief citizens, chief burgesses, chief portmen; formed by definite act as at Ipswich or formed by a practice of summoning to the court only “the more discreet and more legal men.” This body at first is rather a judicial than a governing body, for the powers entrusted to the burgesses by their charter are much rather justiciary than governmental. But municipal life grows intenser and more complex; the court has to ordain and to tax as well as to adjudge, and it is apt to become a council, the governing body of the borough. Then, as trial by jury penetrates the boroughs, it sets up an important change. The old pattern of a court with doomsmen who are there to declare the law gives way before the new pattern with jurors who bear witness to facts. In the town, as in the realm at large, “court” and “council” are slowly differentiated; the borough court becomes a mere tribunal, and by its side a distinctly conciliar organ is developed. This, however, except perhaps in exceptional London and a few other towns,411 seems to be rather the work of the fourteenth than of the thirteenth century.412 The power of acting in the name of the borough passed little by little from a general assembly of burgesses to a council or “select body”; but even until 1835 there were towns, and towns with long histories, in which all the most important business of the corporation had to be brought before a meeting in which every corporator, every burgess or freeman, had a vote: such was the case at Winchester, Maidstone, Cambridge, Ipswich.413 In the thirteenth century we may sometimes suspect that grants, ordinances and agreements to which “the burgesses” or “the community” are said to be parties may not have been sanctioned by any general assembly; but this should be no more than a suspicion until it can be verified in the history of the town that is in question.414
Powers of self-government.(vii)By-laws and Self-government. The charters do not expressly grant any power of legislation; but no doubt such power in varying degrees was often exercised:—in varying degrees, for however little distinction the law might make in this respect between borough and borough, there must have been a marked difference in fact between the city of London and some small market-town which had just attained to burghal rank. Not that we can at once ascribe greater powers to the wealthiest towns. On the contrary, in the petty borough whose governing court was still the court of its lord, the lord with the assent of his court would still be able to make ordinances almost as easily as, with the assent of his court, he could make ordinances for his rural manors, and the validity of such edicts would often pass unquestioned. But as an enfranchised town grew in trade, in wealth and in population, its folk would be tempted or compelled to enter on the regulation of affairs which had no existence in less busy places. Its “customs” had been guaranteed to it, and the function of declaring custom could not always be marked off from that of imposing new rules. In London definite legislation begins at an early time. In 1189 Fitz-Alwyne’s Assize was issued. It has been well called the earliest English “Building Act”;415 it contains stringent provisions about the houses that men may erect. A somewhat similar ordinance was issued in 1212 after a great fire, and it did not scruple to fix the rate of wages for masons, carpenters, tilers and the like.416 Thenceforward ambitious attempts were made to regulate the price of commodities and the business of the various crafts. Now it is the poulterers who require attention, and now a code must be issued for the saddlers or the cordwainers; and then again exceptional privileges are conceded to foreign merchants; such a grant, for example, is made to the men of Amiens, Corbie and Nesle, for which they are to pay an annual sum of fifty marks towards the farm of the city.417 The mayor and aldermen of London seem to conceive themselves to be endowed with almost unlimited legislative power over the whole province of trade and handicraft. And no doubt their ordinances were obeyed. The individual citizen, the individual “foreigner,” dared not quarrel with them.
Limits to legislative powers.For all this, however, many doubts may occur to us touching the limits set by common law to their powers. Over against their wide claims we must set the wide claims of the king. Now and again some knot of traders, which thought itself oppressed, would be rich enough to stir the king to action, and when the king takes action even the City of London is apt to look powerless. In Edward II.’s day a dispute broke out between the civic authorities and the body of fishmongers on the one hand and certain fishmongers who did business at the Fish Wharf on the other.418 Ordinances had been made prohibiting the sale of fish by retail at the wharf. The king was induced to dispute their validity. Much was said about their good and bad effects; but the king’s counsel took high ground:— “The city of London is the city of our lord the king, and of his demesne, and it is not lawful for the mayor and commonalty, nor for any other, to make any ordinances in the said city without consulting the king.”419 So, again, at an earlier time Walter Hervey, mayor of London, had issued ordinances regulating the affairs of various crafts and affecting to confer on the craftsmen power to make yet other rules for their trade; but the validity of these ordinances was disputed, not only on the ground that the aldermen had not been consulted, but also because the regulations favoured unduly the richer men of the crafts.420
Enforcement of by-laws.During the period now before us the common law does not come to close quarters with municipal by-laws; it is rarely, if ever, called upon to uphold them, for they are enforced in the municipal courts by those who made them;421 it is rarely called upon to condemn them, for he must be both a bold and a rich citizen who will call in the king against the city. And so we obtain no jurisprudence of by-laws, no established tests for their validity.
The one thing that we can say with some certainty is that in theory no one in England can claim to legislate unless that power has been given him by the king—to say nothing of parliament. Those who claim to make by-laws must show that such power has been given to them by royal charter, or else they must show (and this they will hardly prove to the satisfaction of the king’s justices) that they have been exercising it from time immemorial. On the whole, we may doubt whether in the majority of English towns much was done by way of legislation that might not be represented as being no more than a necessary definition and development of ancient customs. No decent person would consider himself aggrieved if a sharper edge was given to old rules directed against the wickedness of the “forestaller” who enhanced the price of victuals.422
Rates and taxes.(viii)Self-taxing powers. Powers of taxation are not expressly conceded by the charters of this age, and they must have been confined within narrow limits. If the burgesses wished to repair their walls, their bridges, their streets, they had to apply to the king for a grant of murage, pontage or pavage; and such grants were not to be had as matters of course.423 In Edward I.’s day the petition came before the royal council in parliament, and the “local rate,” we may say, was frequently a “parliamentary tax”; but as the king had not yet lost the right to tallage his boroughs, he could permit them to tallage themselves. The royal nature of the power to tax is well illustrated by the loud complaints which come to our ears from almost every ward in the city of London:—The great men of the city have purchased charters exempting them from tallages and thus the burden is thrown upon the smaller folk. “Not just once, twice, thrice or four times have the mayor and aldermen set tallages upon us without the special command of the king or the assent and consent of the whole community; they have spared the rich and distrained the poor, to the disherison of the king and the destruction of his city.”424 A certain power in “the whole community” to tallage its members, these London citizens are willing to admit, but how far they would have allowed a majority to tax a dissentient minority is doubtful. The heavy imposts to which they had recently been compelled to submit were occasioned by the fines to which the city had been subjected owing to the share which its citizens had taken in the Barons’ War. Speaking generally we may say that tallages, fines and amercements imposed upon the borough from without, were (together with the murages, pontages and pavages which, if not imposed from without, were at least licensed from above) the main causes for municipal taxes.
Borough expenditure.The borough community had few other expenses to meet, it was not an “improving corporation” with hosts of paid servants.425 The individual burghers had to serve as officers, as constables, aleconners and the like, or find and pay fit substitutes, while small fees taken from suitors in the borough court, or from the youths admitted into frankpledge, would serve as a remuneration for the town clerk. On the whole, the burgher’s duty of paying “scot and lot” with his fellows came home to him chiefly, if not solely, as a duty of contributing towards sums exacted from the borough by a “not-itself,” and the question as to the legality of rates made for other purposes was seldom raised.426 Had it been raised, the recalcitrant burgher would have found no favour in the borough court, while an appeal to the king’s court was only open to one who could afford to begin a small civil war against his neighbours. But even the city of London thought fit to obtain from Edward II. an express power of imposing tallages for its own use.427
Tolls.A large part of the borough’s revenue was derived from tolls, if we use that term in its largest sense to include “passage, pontage, lastage, stallage, bothage, ewage, tronage, scavage” and the like. Naturally a borough community intrusted with the farm of tolls was tempted to impose a stringent and protective tariff: its ideal of a perfectly “free” trade was an unlimited power to tax other people. Nevertheless we may doubt whether it had any right to create new tolls. The charge of levying new tolls is extremely common; and those against whom it is brought seem always concerned to deny that there has been innovation. The land, it must be remembered, was full of private lords who were toll-takers, and there hardly could be one rule for them and another for the boroughs.
The Gild Merchant.(ix)The Gild Merchant. In a large number of towns one of the privileges that has been granted to the burgesses and their heirs is that of having their gild merchant or market gild. If we attempt to expand the brief phrase used in the charter, we seem brought to some such result as the following:—The king gives to the burgesses a right to form or retain an association for the purpose of employing to the best advantage those mercantile immunities which by other words of his charter he has conferred upon them. They are to be toll free; they may organize themselves for the purpose of maintaining this freedom.
The formation of a gild.A detailed story comes to us from Ipswich. In 1200 King John granted a charter to the burgesses; they were to hold the borough in fee farm; they were to be quit of toll and all similar dues throughout the king’s lands; they were not to be impleaded outside their town; they were to have their gild merchant and their hanse; they were to elect two fit men to keep the reeveship of the borough; they were to elect four coroners. Thereupon the whole community met in the churchyard and elected two bailiffs and four coroners, and ordained, as we have said before, that there should be twelve chief portmen who should guard and govern their borough and give its judgments. Then on a later day the chief portmen were elected and sworn. Then the bailiffs, coroners and chief portmen held a meeting and resolved that an alderman of the gild merchant should be elected by the community and that four men should be associated with him and that they should swear to maintain the said gild and all that appertained to it. Then the whole community met again and elected an alderman and four associates, who swore faithfully to govern the gild merchant and faithfully to deal with all the brethren. Then the alderman and his four associates in the presence of the people proclaimed that all who were of the liberty of the town should come before them and put themselves in the gild and give their hanse to the gild. Then the bailiffs, coroners, portmen and the whole community took counsel how the gild might best be maintained, and they decreed that the alderman and his successors should have a monopoly of gravestones, pavingstones and the like, and that of the proceeds of this monopoly he should render account to the bailiffs and coroners.428
The gild and the government of the borough.Thus, having got their charter, the burgesses of Ipswich proceed to form two different organizations; there is the governmental and justiciary organization with its bailiffs, coroners, twelve chief port-men; there is the gild organization with its alderman and his four associates. Certainly the two are closely connected. The gild is to be no mere private club. Every burgess is to place himself in the gild and pay his hanse, his entrance fee, to the gild, or otherwise, as we gather, he will lose some at least of the advantages, notably the mercantile advantages, that the words of the charter give to the burgesses of Ipswich and their heirs. No doubt it would be imprudent were we to base any large generalities upon a few cases. Not all the charters of even date are exactly like the Ipswich charter. Thus in the same year the same king granted a charter to the men of Gloucester. In this the privilege of not being impleaded without the walls and the privilege of being free of toll were expressly confined to “the burgesses of Gloucester who are of the merchant gild.”429 In one place the merchant gild may have been of more, in another of less importance; in one place it may have become in practice, though hardly in theory, the governing body of the borough, while in another place there was no such gild at all. In London itself traces of a merchant gild are, to say the least, very faint, while Norwich stands out as an example of the flourishing cities which to all seeming never had a merchant gild.430 The mercantile privileges granted to the burgesses could be maintained and enforced without any such organization, while with the public justice and police of the borough the gild as a general rule had nothing to do. In boroughs which had a gild merchant the burgess was not necessarily a gildsman, the gildsman was not necessarily a burgess.
Objects of the gild.The main object that the gild merchant has in view is the maintenance of the mercantile privileges that have been granted by charter. This is an important and a difficult matter. A few merchants of the town go to some distant fair or market; toll is taken from them; the lord of the fair, the bailiffs of the rival city to which they have gone, scoff at their charters, or temperately and reasonably set charter against charter and seisin against seisin. In such a case a solitary trader far from home needs all the help that his fellows can give. And they are interested in his cause, for once let it be established that the burgesses of X are in seisin of taking toll from the burgesses of Y, then only by litigation, if at all, will the burgesses of Y recover seisin of their immunity. If the privilege is to be preserved intact, the individual merchant must be backed by a community of merchants which will take immediate action, which will complain to the king and support its complaint with a handsome gift, or which will forthwith make reprisals against the aggressors. To make reprisals they are encouraged by their charters. It is thus for example that the king speaks in his charter to the men of Gloucester— and similar clauses are not uncommon—“And if any one in our whole land takes toll from the men of Gloucester of the gild merchant, and shall refuse justice, the sheriff of Gloucestershire or the reeve of Gloucester shall for this take a nam at Gloucester.”431 If a gildsman of Gloucester be subjected to toll in another town, the men of that other town had better not bring their wares to Gloucester. The merchants of the borough must be organized in order that this inter-municipal warfare may be conducted vigorously and prudently. Both vigour and prudence are needful; all those who are not exempt from toll should be forced to pay it, while it is perilous to touch those who are exempt. In order that their action may be both prompt and deliberate, the merchants must be organized, must constantly meet, must have executive officers and a common purse.
The gild and the burgesses.Still these mercantile privileges are not of equal importance to all the burgesses. Many of them are not traders; but few of them will carry goods to distant markets, though those few are likely to be rich and powerful. Thus the gild organization may remain quite distinct from the governmental organization; men may be burgesses who are not gildsmen. On the other hand, it would certainly seem that rightly or wrongly the gildsmen take upon themselves to receive as brethren men who are not burgesses, men who do not live in, who do not hold property in, the town, but who desire to share the immunities which the traders of the town enjoy.432 Thus, though according to the terms of the charters “the gild merchant” is a liberty, a franchise, conceded to the burgesses, the gild comes to be a body of persons which does not include all the burgesses and does not exclude all who are not burgesses.
The gild court.Further, at least in some cases, the gild merchant evolves out of itself a court of justice which exists beside the law court of the borough. This can hardly be prevented; the craft gilds of London evolve courts of justice, the French and German merchants in London evolve courts of justice, the learned universities evolve courts of justice; there can hardly exist a body of men permanently united by any common interest that will not make for itself a court of justice if it be left for a few years to its own devices. The gild-brethren at their “morning-speeches” do not merely take counsel for the maintenance of their privileges and the regulation of their trade, but they assume to do justice. In the first place, they decide questions of inheritance and succession. A person’s gilda, that is, his right as a member of the gild, is treated as an object of ownership. With the consent of the court a man may give it or sell it. If he dies possessed of it, then it will descend to his heir. And so at the morning-speech one person will come and demand against another the “gild” of a dead ancestor “as his right and inheritance,” using the very form of words by which he would have demanded ancestral lands. Such disputes, such actions we must call them, the gildsmen hear and determine at their morning-speeches. But besides this they entertain actions of debt and covenant and trespass, and hardly dare we call such assemblies mere courts of arbitration, for they can enforce their own decrees; if it comes to extremities, the contumacious brother can be expelled. The right of each gildsman to claim a share in any bargain that he sees one of his fellows making is another cause for litigation.433
The borough as a franchise-holder.Such in brief were the main franchises that the boroughs enjoyed, and these franchises, some or all of them, made the borough to be a borough. This gave the king a tight hold upon the towns-folk. The group of burgesses was a franchise-holder in a land full of franchise-holders, and had to submit to the rules which governed the other possessors of royal rights. It might lose its privileges by abuse or non-use; it might lose them by not claiming them before the justices in eyre, though in this case a moderate fine would procure their restoration. Four times at least within eleven years did Henry III. seize the city of London into his hands, once “for receiving Walter Buriler without warrant for so doing,” once because of a false judgment in the hustings, once because the citizens prevented the mayor and aldermen from discussing certain matters with the king’s justices, and once because the assize of bread and ale was not kept.434 No doubt Henry was tyrannical and greedy, but these seizures show how weak was the most powerful of all the English cities. Then Edward I. kept London for many years without a mayor, and during this time he legislated for it in royal fashion:—“ le Roy voet, ” such is the formula by which by-laws are made.435 And the king’s inquests searched out the secrets of the borough; he was not to be put off with the story told by the rulers of the community. If he desired to know what had passed at Lincoln, he heard one jury of the great, another of the “secondary,” a third of the “lesser” folk.436
Corporate character of the borough community.We ought now to inquire whether the borough community differs from the other “land communities” in exhibiting all or any of those peculiar characteristics to which we make reference when we speak of corporateness or personality. And at once it must be confessed that in the scale of “towns” which begins with the common village and ends with London no break can be found. This does not, however, absolve us from the inquiry: black and white are different, though nature displays every shade of grey.
Corporateness not bestowed by the king.The doctrine that some act of public power is necessary if a corporation is to come into being had not as yet been accepted. Probably we must wait for the fourteenth century to hear a king’s advocate proclaim that the burgesses cannot have a communitas unless this be granted to them by the king.437 As yet the charters contain no creative words. Nothing is said, as in the charters of the fifteenth century, about the erection of a “corporation” or “body politic”; nothing, as in the charters of the fourteenth, about the formation or confirmation of a communitas.438 The communitas is already there; it may want privileges, but it exists. The notion that there is some “feigning” to be done, some artifice to be applied, has not as yet been received from the canonists,439 and perhaps we ought to regret its reception; the corporation which exists “by prescription” seems to defy it or to require that one fiction be explained by another.440 The foundation, however, is being laid for a rule which will require a royal licence when a new corporation is to be formed. This work is being done partly by legists and decretists, who are discussing the collegia illicita of Roman law, partly by English statesmen. The king had begun to interfere with the creation of new communitates, with the creation of voluntary associations or gilds. Such intervention was dictated not by any “juristic necessity,” any theory of personality, but by political expedience and financial needs. Gilds may give trouble; they may become aggressive communae of the French type. The Londoners from of old are a community, but they must not form a sworn communa unless the king consents. “Adulterine gilds”441 must be suppressed for much the same reason as that which decrees the destruction of “adulterine castles.” Besides, here lies a not disreputable source of income. Men will pay for leave to form clubs; and it is to be remembered that the medieval gild is never content with the purely private position of a modern club, but aspires to exercise some jurisdiction and coercive power over its members, and perhaps over outsiders. Thus the notion is propagated that gild-like structure must not exist without royal licence, and this at a time when the structure of the burgensic community is assuming a gild-like shape.442
Gild-like traits of the borough community.For that was happening. The idea of voluntary association was moulding the community. In the great boroughs large sums of money were subscribed in order that privileges might be bought from the king, and the subscribing townsfolk naturally conceived that they purchased those privileges for themselves. Some definition of the privileged, the franchised, body was necessary, and yet in the great boroughs that body could not assume any of the old accustomed forms. The hide or the yardland could no longer be the groundwork of membership. Even the freehold tenure of a house would not serve to mark the line, for leases for years were becoming fashionable in the big towns. The gilds, especially perhaps the gilds of merchants, set an example. The community of burgesses is a voluntary association. Some men, it may be, have a right to join it, while others have no such right; but every member of it has joined it by a definite act. He has entered the community, been admitted to it, paid an entrance-fee, “sued out” or “taken up” his liberty.
Admission of burgesses.A step is being made towards corporateness. The borough begins to look somewhat like a religious house or an order of knights. Just as the monk or the templar becomes professed of his own free will and is solemnly received into the order, so the new burgess enters “the borough” (not the physical borough, but an ideal borough) of his own free will and is solemnly received into the community. If the monk took vows, so did the burgess: at Ipswich he swore upon his father’s sword to maintain the freedom and conceal the secrets of the town.443 This process of transformation is still exceedingly obscure.444 Besides the influence of the gild, the influence of the sworn communa of the French town may be suspected.445 But also the freedom from toll which has been granted to the burgesses may have played an important part at this crisis. The townsfolk perceived that they had enviable “liberties” which were communicable to others, that they could, at least for some intents, make burgesses out of non-burgesses, that by so doing they could raise money, and that within limits which were not precisely ascertained they could themselves define the class which should enjoy the chartered liberties.446 The task of tracing this change must be left to those who can afford to treat each borough separately, for doubtless it went further in some towns than in others; but it helps to transmute the idea of burgherhood.
The title to burgher-hood.In course of time a definite right to burgherhood is established. Though there were many small variations, there was ultimately among our greater boroughs a remarkably unanimous agreement that this right was communicated by a father to his sons, or at least to his firstborn son, and by a master to his apprentices. We have not here a case of inheritance, for the son may claim “his freedom” in his father’s lifetime; but the community continues its existence by virtue of an individualistic communication of right by an old to a new member. The right seems to flow downwards in blood and craft. It is a curious idea and has not been subjected to the careful exploration that it deserves. Despite its universality, we may, at least as regards the apprentices, doubt its great antiquity, and should not be surprised if it had its origin in a practice which exacted from the son of a burgess a smaller entrance-fee than was demanded from other applicants.447 When and where this right to burgherhood was established, the privileged body might become by degrees very different from and much smaller than the sum of the substantial men of the town; but we have little reason to suppose that during the age of which we are here speaking this effect had become prominent. No doubt from the first there were in the town many people who were not deemed to be “burgesses” or active and fully qualified members of the community of the vill. There were women, sons living with fathers, menial servants, apprentices: in a word the “mainpast” of the burgesses. Persons of this sort there were in every community, in every township. Nor is it impossible that some others were left out on the score of their poverty: they had contributed nothing to those heavy sums which were the price of the charters, and could pay no entrance-fee to the common chest. It is likely that from the remotest period our ancestors were familiar with the idea that a class of men may be within a community and yet have no right to share in the conduct of its affairs. Such probably was the position of the bordarii and cotarii in the villages of old time.448 This idea bore new fruit in the borough; many men might be within the community of the town and yet have no vote in any burgensic assembly.
The “subject” in the borough charters.These changes take place in a darkness which is unilluminated by legal theory. Legal thought and legal phrases seem to be lagging behind the facts. If we examine the form of a borough charter we see that the king or some other lord is conceived as making a gift of franchises to “the burgesses” or “the men” of a certain town “and their heirs.” But in what mode, we may ask, does this gift operate? (1) It may possibly give to each person, who at this moment is a burgess of the town, a several right which he will enjoy in severalty and transmit to his heirs. Or (2) it may confer on all the now burgesses of the town a right of which they are to be joint tenants or tenants in common, and may thus institute some kind of coproprietorship. Or (3) it may be placing the right in some corporation or group-person in which the burgesses of the town are organized and unified. And if we have to consider rights we have also to consider duties. “The burgesses and their heirs” become liable for the farm of their borough. What does this mean? Who is liable to pay what? What goods or lands can the king seize if the rent of the borough be not duly paid to him?
Discussion of the charters.The difficulty of these questions will best be seen if beside a borough charter we place three other instruments, very similar to it in form, however different they may be from it and from each other in substance. The Abbot and Convent of Malmesbury declare that they have granted a certain piece of ground at Pilton near Barn-staple “to the men who have taken it of our house—our cell—of Pilton for the purpose of building houses, to have and to hold to them and their heirs of our said house of Pilton by rendering to the said church twelve pence yearly from each burgage.”449 Now in this case we can hardly doubt that the rights given by the charter are rights given to each tenant severally, and rights that he is to enjoy in severalty. He has taken a plot of building land and is to hold it heritably on the terms of burgage tenure, though Pilton is not, and is not to be, a borough. There is to be no corporation; nor only so, there is to be (so far as we can see) no co-ownership, no common enjoyment. We turn to another case. King John would have it known that he has granted to his men of Cornwall that certain moors shall be disafforested and that the said men may hunt thereon; also that without their consent their serfs shall not be received into the liberties of the king’s boroughs; also that the fees of the honour of Mortain (which are small450 )shall not pay the full rate of scutage. “Therefore,” he says, “we will that the said men of Cornwall and their heirs shall hold all the premises of us and our heirs with all liberties and free customs.”451 The third charter to which we would ask attention is one by which this same King John made a grant to all the freemen of England and their heirs; it is no other than what will be known for all time as the Great Charter. At the end of its famous clauses we read how all the men of England are to have and to hold certain liberties to them and their heirs of King John and his heirs for ever.
Charters for the borough, the county, the whole land.Now these last two instruments, the Cornish charter and the Great Charter, are in form just like an ordinary borough charter. The king grants libertates to the men of Nottingham, the men of Cornwall, the men of England and their heirs. In what mode do the grantees hold the liberties? Does each “man” acquire a several right to be enjoyed in severalty? Do all the “men” become tenants in common or joint tenants; or again, is the true recipient of the grant a group-person, a corporation? The form of the Great Charter and the charter for the men of Cornwall compel us to say that these questions have not been faced. If we take the Great Charter and work out any theory as to its grantees and the mode in which they received the boon, we are brought to absurdities. The modern Englishman who would take advantage of its provisions must show himself heir of some one who lived in 1215; or, if a clause of the charter be broken, then either all Englishmen must join in an action against the offender, or the corporation of England must appear by its attorney. There remains the possibility that this is a gift to uncertain persons, to all and singular who at any time shall answer the description “men of the realm of England”:—but is such a gift conceivable?
Charters and laws.It may be replied that Magna Carta, whatever its form, is in substance no deed of grant but a code of law. That is true; but the fact remains that the form of this solemn instrument is that of a deed of grant. That was the form which to the prelates, clerks and lawyers of the time seemed the most apt for the purpose. The king was to grant liberties to the men of England as he had granted them to the men of Cornwall and the men of London. Or let us look at the other side of this similitude:—Henry III., if he grants liberties to the men of Nottingham, will execute an instrument whose jural form will be exactly the same as that of the charters which he seals in favour of the men of England. This makes the borough of Nottingham look, not like a corporation, but merely like a portion of the earth’s surface within which certain laws are to prevail.
Criticism of the borough charters.Now it can hardly be doubted that certain clauses in the borough charters should be read as grants made to individuals of rights that are to be enjoyed by them in severalty. Such, for example, would be a clause declaring that the burgesses and their heirs shall hold their tenements in free burgage. It is like the Abbot of Malmesbury’s charter for the men of Pilton. Each burgess gets a right to hold his tenement heritably at a burgage rent. “The burgesses of X and their heirs” is here but a compendious phrase which saves us the trouble of naming many men by their proper names. And may this not also be true of other clauses: for instance, of the clause which declares how the burgesses and their heirs are to be free of toll throughout all England? Suppose the grant made to the burgesses of X; a certain burgess of X goes into the town of Y; toll is demanded from him; he refuses to pay; his chattels are seized. Now who is wronged, who can bring an action against the offender? Has this injury been done to the individual merchant, or to the mass of the men of X as co-owners of a franchise, or to the corporation known as “the borough of X ”; or again, have there been several wrongs? There is good cause for doubting whether the lawyers of this age were ready with an answer to these questions. On the one hand, we may find two citizens of Lincoln, who have been distrained in the town of Lynn, bringing their action against the bailiff of Lynn and relying on a charter granted to the citizens of Lincoln.452 On the other hand, the plaintiffs who take action for such a cause will often be described as “the citizens,” or “the burgesses,” or “the bailiffs,” or “the mayor and commonalty” of the town whose charter has been infringed;453 and yet we cannot be certain that the courts would have given one action to the individual trader and another to the community, and compelled the offenders to pay first for unlawfully seizing a merchant’s chattels and then for infringing a city’s charter. Modern lawyers may be inclined to say that when such a clause is treated as conferring rights on each individual burgess it is treated as an act of legislation, not as an act of donation; that the burgess who brings the action is not required to prove (very possibly he could not prove) that he was heir to one of the original donees; that in reality a law or an ordinance has been made declaring that any person who at any time shall be a citizen of Lincoln shall be quit of toll; but then this distinction between laws and grants is not one that we find in our records.
Rights conferred on the burgesses jointly.There are, however, other clauses in the borough charters which cannot be thus treated. For example, there is the clause relating to the fee farm of the “borough,” which certainly does not mean that each burgess is to hold a certain share of the “borough,” paying for that share a certain rent to the king. Again, so far as we have observed, the important clause which declares that the burgesses shall not be impleaded outside the borough is rarely, if ever, construed to mean that a right of refusing to answer in foreign courts is conferred on each burgess. On the contrary, when a burgess is impleaded in the king’s court, the regular practice is that the officers or “the burgesses” of the borough should intervene and claim cognizance of the cause, or (to use the language of the time) “crave their court and obtain it.”454 Once more, if we take such a franchise as the return of writs, we cannot possibly treat this as having been conferred on individuals to be enjoyed by them in severalty. In some sense or another it must belong to the community as a whole. But then in what sense?
The community as bearer of rights.This brings us to the great problem. Is the right conceived as inhering in many men or in an organized group which is for this purpose an indivisible unit? The best answer that we can suggest for this difficult question is that the lawyers are trying to retain old forms of speech and thought and to regard the burgesses as a set of co-proprietors, while at the same time they are beginning to know that the borough community differs in kind from all other “land communities” and that Bracton has got hold of the right idea when he calls it an universitas.
Inheritance, succession and organization.In the first place, they are beginning to recognize the fact that the idea of inheritance will no longer serve to describe the means by which the existence of “the burgesses” is perpetuated. The words “and their successors” begin to supplant the old formula “and their heirs.”455 This is a step in advance, for on the one hand the burgensic community is separated from the set of co-proprietors, and on the other hand it is brought into line with religious bodies. Even this novel phrase, however, is not very good, for the new burgess or new monk does not of necessity “succeed” any other burgess or other monk. Our forefathers found it hard to conceive that one and the same community can continue to exist unless each new member steps into the place of some departed member. We have seen how in modern times there was within our boroughs an individualistic communication of right by father to son or master to apprentice, and this can be vaguely pictured as a kind of succession or perhaps of inheritance.456 Down even to the present day the formal language of our law but ill expresses what has long ago become our thought. A transaction which would be commonly and aptly described as a contract between the University and the Town of Cambridge will become upon parchment a contract between Chancellor, Master and Scholars of the one part and Mayor, Aldermen and Burgesses of the other.457 This retention by legal documents of a style or title which seems to lay stress rather on the plurality than on the unity of the group has set snares for those who would penetrate beneath style and title to the thought that is struggling to express itself.458
Criminal liability of the borough.But we must pass from form to substance. Our law felt no difficulty about attributing misdeeds of many sorts and kinds to communities. The counties, hundreds and townships are always being fined and amerced for wrongful acts and defaults. So too the boroughs can be punished. Every borough in England from the city of London downwards lives in daily peril of forfeiting its charters, of seeing its mercantile privileges annulled, of seeing its elected magistrates displaced and itself handed over to the mercies of some royal custos or firmarius. If Londoners insult the queen or take the wrong side in the Barons’ War, the city will have to redeem its privileges with an immense sum.459 If in the town of Derby “superfluous” tolls are taken and the members of the gild merchant are unduly favoured, the liberties of the borough will be seized.460 The city of York claimed to farm the Ainsty; in support of this claim the mayor produced a charter which purported to be of the fourth year of King John; but the word quarto was written over an erasure. Judgment was given that the mayor should go to prison, that the charter should be quashed, and that the citizens should lose all that they claimed thereunder.461 The mayor of Sandwich was found guilty of asserting by acts of violence certain supposed franchises of his town; “and because he is convicted of the said trespass, and because whatever is done by the mayor in matters affecting the community is the act of the community itself, it is adjudged that the community of Sandwich lose its liberty.”462 Now between the punishment of a borough and the punishment of a county or village little difference would at first be seen. The one can be fined; the other can be fined. The fact that the burden of the impost will distribute itself much more automatically in the rural district than in the borough, where movable wealth will probably be assessed, is a fact of which no account need be taken by the court which inflicts the penalty. Still it must become evident sooner or later that the borough community can be punished in a peculiar fashion; it has liberties and it can forfeit them. It can be equated with other franchise-holders and punished as one of them would be punished if he abused his franchise. Taken merely as unit it can be punished, and the punishment may continue to operate while old members are yielding place to new, whereas a fine inflicted on a hundred divides itself immediately into punishments inflicted upon certain men who are now living. Sharp distinctions are not to be looked for in this quarter. Even in the nineteenth century a county may be indicted for non-repair of highways and until the other day a hundred might be sued if rioters did damage.463 But still the “liberties” of the borough give the law an opportunity of enforcing here more clearly than elsewhere the thought that if the organized community acting organically breaks the law, it in its unity can be and should be punished.464
Civil liability.In the region of civil liability little advance was possible. The burgesses may “farm” the borough; but an ordinary township may farm its vill.465 When the king accepted the burgesses as farmers in place of the sheriff, he certainly did not mean to exchange the liability of a well-to-do man for that of an unit which had few, if any, chattels. On the contrary, instead of looking to the wealth of one man, he now looked to the wealth of many. If the rent of the borough fell into arrear, he could proceed against all the burgesses or any burgess. A common practice of the exchequer was to attack the rich. The sheriff would be ordered to summon six of the richer burgesses to answer for the rent.466 This was for the king a convenient procedure. He could exact payment of his rent, his fines and amercements from those who had money, and then could say to the burgesses at large—“Now you can settle the ultimate incidence of this impost among yourselves; the settlement is your concern, not mine; at all events, it is not my concern so long as I am acting, not as judge, but as creditor; for all of you are, and each of you is, liable to me for the whole sum.” Then inside the borough, or the manor, there would be a settlement. To meet the annual rent there were funds which normally would be sufficient; the burgage rents, the tolls, the profits of the court should be applied for this purpose, and the elected bailiffs might be bound to make good the deficiency.467 If a fine or amercement had been inflicted, then a rate might become necessary. The men of a rural manor would probably be charged according to the scheme of commensurable tenements; the burgesses would be assessed according to their wealth in goods and chattels. If really there were any lands or goods which we could properly describe as belonging to the borough corporation, these also might be taken, but they would be only a part, and usually a very small part, of the property of the community; for the property of the community comprised, at least for this purpose, all the lands and all the goods of every burgess. Development was especially slow in this quarter, for not until 1285468 could land, as distinct from the profits of land, be regarded as an “available asset” for the satisfaction of debts, and the nascent municipal corporation had few, if any, chattels, and little, if any, land that bore crops.469
The communities in litigation.Nor as yet can we find any marked distinction between the various communities when they take part in litigation. The doctrine that a community can appear in court only by attorney, that it cannot possibly appear in person, has certainly not been grasped. “The citizens of X ” or “the burgesses of Y ” are said to appear, and they are not said to appear by attorney. Or again, the mayor, or the bailiffs, or the mayor and bailiffs appear to urge the claims and defend the rights of the community. It is so with communities to which we cannot ascribe incorporation.470 In the exchequer “the men” of this hundred, “the men” of that township, are sued for fines, taxes and amercements. “The fullers and dyers of Lincoln” sue “the aldermen and reeves of Lincoln.”471 In Edward II.’s time Emery Gegge and Robert Wawayn “on behalf of themselves and the other poor and middling burgesses of Scarborough” sue Roger atte Cross, John Hugh’s son, Warin Draper “and the other rich burgesses of the said town.”472 John Abel is attached to answer Betino Frescobaldi “and his companions merchants of the firm (societas) of the Frescobaldi of Florence.”473 At a later time when an action was brought against “the Fellowship of the Lombard Merchants of Florence in London” and the sheriff, by way of making that society appear, distrained two of its members, the argument was advanced that this was an illegal act;474 but in the thirteenth century we hear no such arguments; no one seems to think that they can be used. Much rather we are inclined to say that if there is any group of men having a permanent common interest, and if an unlawful act is done which can be regarded as a lesion of that interest, even though it does actual damage only to some one member of the group, then the members of it may join in an action, or one of them may sue on behalf of himself and all the other members:—as Bracton says “Omnes conqueri possunt et unus sub nomine universitatis.”475 This is so within wide and indefinite limits. In the case of a borough attacked from without, it is natural that the complaint should be lodged by the chief officers of the community. The burghers compose a body, and what the head does in matters concerning the community, the whole body does.476 But this is hardly more than a special instance of a general rule. Instead of being attacked from without, the borough may be divided within. If so, then A and B “on behalf of the poor burgesses” can sue C and D “and all other the rich burgesses.”
Debts owed to communities.Everywhere we find the same uncertain grasp of principles which we are wont to regard as elementary. Henry III., when he died, owed £400 to the community of Northampton:—so say the jurors of Northampton. Here at last, we may say, is a distinct case of a debt due to a corporation. But how was it incurred? Thus, say the jurors:—during the twenty last years of his reign the king’s purveyors (captores) took to his use peltry to that value in the fairs of Northampton, Stamford, St. Ives, Boston, Winchester and St. Edmunds; what is more he owes the drapers of Northampton £100 for goods taken in the same fairs. The story, if true, is sad, for “many of the townsfolk are dying of hunger and begging their bread and have abandoned their tenements in the town and the town itself.”477 But King Henry has not been taking the goods of a corporation; we much doubt whether there has been any joint-stock trading by all the burgesses or all the drapers of Northampton; he has taken the goods of individual traders. Nevertheless, in popular estimation he has incurred a debt to the community by taking goods from the stalls of Northampton merchants who were exercising “liberties” of trading which were granted to all the men of Northampton and their heirs. Again, if a merchant of X owes a trading debt to a merchant of Y, then if other merchants of X go to the town of Y, or to some fair where the creditor finds them, they will like enough be held answerable for the debt—at all events if he proves that he has made a fruitless effort to obtain justice in the court of X: —they are the communares of the principal debtor, they are “his peers and parceners,” they are “in scot and lot” with him, and they, and each of them, must answer for his trading debts: for debts, that is, incurred in the exercise of trading privileges which they all enjoy in common.478 And should a bailiff of X take unlawful toll from a merchant of Y, then woe betide the merchant of X who enters the town of Y. “Collective liability”—this seems the best phrase—we may see everywhere, in so much that we are tempted to say, not merely Quod communitas debet, debent singuli, but also Quod singulus debet, debet communitas. In all seriousness we are driven to some such proposition as the following:—If several men have some permanent common interest, and in any matter relating to the prosecution of that interest one of them commits a wrong or incurs a debt, all and each of them will be liable. This is not the outcome of any doctrine of “implied agency,” it expresses the nature of a communitas. But pure corporate liability—that we shall not easily find.479
The common seal.Nevertheless (and here we must turn to the other side of the picture) the burgensic community is attaining that kind of unity which is personality. When in 1200 the community of Ipswich received its charter from King John, one of their first acts was to obtain a common seal and commit it to the care of the two bailiffs and one other of the chief portmen; they were sworn to set it to no letter or instrument save for the common honour and profit of the burgesses of the town, and only to use it with the assent of their peers, that is, of the other chief portmen.480 No doubt by this time the greater boroughs were getting themselves seals.481 Now we would not exaggerate the importance of this step—and we have seen how in Edward I.’s day the county of Devon had a seal482 —still it was important. In the first place, it was a step towards the co-ordination of the boroughs with the religious houses, which in their turn were being co-ordinated with individual men. In the second place, there was now an outward and visible sign of the borough’s unity.483 A mode of conveying rights and creating obligations is established which goes far to confute the notion that the communitas is a mere sum of men with joint rights and joint liabilities. If the communitas be this, then the act by which it conveys away its rights or subjects itself to an obligation should, so we naturally suppose, be some act done by all its members. And so we have seen how the men of Toddington, thinking that they had land to give to the Priory of Dunstable, met in one place at a court holden for Toddington and there by their unanimous consent made the grant. And then we have seen how afterwards they asserted that the transaction did not bind them because some of them were infants when the grant was made.484 This is not the way in which corporators behave; it is the way in which co-owners behave. No doubt there are other fashions in which a corporation can become bound beside the apposition of a common seal; we must not make our English formalism a measure for all mankind; still a formality which somewhat distinctly marks off some communitates from others, and a formality which is never used by co-owners who have come to co-ownership by the operation of merely private law, which is never used by co-heirs, is important. What is more the seal is intrusted to the guardianship of a few. The community at Ipswich which has just received its charter, which has just exercised its new right of electing bailiffs, which is in the act of establishing a council of chief portmen and a gild merchant, seems to feel that not only is it passing from a lower to a higher rank among the communities of the land, but that some new degree or even kind of unity has been attained: it must have a seal that is its, for it may now come before the law as pure unit and live as a person among persons. Rules as to when and by whom this seal may be affixed will be developed in course of time, and a definite theory about the power of majorities will take the place of some loose notion which demands unanimity but is content if the voices of a dissentient few are overwhelmed by the shout of the assentient many. The unanimity of ancient moots is wonderful. Unconscious fiction begins its work at an early time. With one voice all the people say “Yea, yea” or “Nay, nay.” But now there is to be a small deliberative assembly “to govern and maintain the borough” and the votes of the twelve will be counted.485
The borough’s property.What now is necessary is that the community, acting as unit, should begin to develop its property. As regards rights in land, critically decisive acts are hardly to be expected at this early time. In some sort the “waste” land, intramural and extramural, may belong to the community. But on the one hand this community must come to terms with the king about the right of “approvement,” which is rather in him than in it,486 and, on the other hand, it must come to terms with the singuli about their rights of “common”; and this may be a long process. The early examples in which a community disposes of land have a strong tinge of co-proprietorship about them.487 Apparently the fourteenth century had come before there was any considerable quantity of land that was paying rent into municipal chests; and until this was happening, the notion of a true corporate ownership of town lands was insecure.
The borough’s property in its tolls.Unless we are mistaken, the property that was most important in the evolution of corporate unity was the property that the borough had in its franchises, but more especially in its tolls. Already in 1225 “the burgesses” of Nottingham under their common seal had demised to “the burgesses” of Retford the tolls “belonging to the borough of Nottingham” and arising within certain geographical limits—“to have and to hold at farm to the said burgesses of Retford and their successors of us and our successors for ever” at a rent of twenty marks.488 Now this we can hardly regard otherwise than as a transaction between two persons. It can scarcely be thought that the now burgesses of Nottingham are in any tolerable sense co-owners of the right of taking toll. No one of them is entitled to an aliquot share of the tolls; no one of them has anything that he could demise to a burgess of Derby or of Retford; nay, if the Retford folk took a separate deed from each man of Nottingham they would get nothing thereby. What is wanted is not joint action but constitutional action; a common seal must be affixed by those who according to the constitution of the borough are entitled to affix it. Very possibly no man of Nottingham had yet said to himself “Our borough is a person.” Had he done so he would have been in advance of the acutest English lawyers of his time, for Bracton and his master Azo were not very clear that the res civitatis were not the res omnium civium. But had he heard how a pope was ascribing a “fictitious personality” to the universitas, he would perhaps have said: “Yes, the Holy Father is right; our borough of Nottingham is a person.”
The ideal will of the borough.It is in this region that we may find “the ideal will” of the borough, a permanent purpose that keeps it together just as a religious house is kept together by the purpose of glorifying God according to the Benedictine or Cistercian rule. The borough wills to maintain and profit by its franchises, notably to take toll and be quit of toll. “The franchises and liberties of the City of Norwich I will maintain and sustain with my body and goods”—such is the oath which the freeman of Norwich will take from century to century. The county, the hundred, the township, has no such will, no such definite, abiding purpose. It has no franchises, or, if it has a few, not such as must be vigorously “maintained and sustained” by the bodies and goods of its members and anxiously guarded and administered by its rulers.
Last words on the borough’s corporateness.We may now sum up the whole of a long discussion which has strayed into regions that are insufficiently explored. The question, When did our English boroughs become incorporate? is one to which no precise answer can be given. It is a question about the evolution of a theory on the one hand and the appearance of certain political, social and economic facts on the other, and then it is a question about the application of the theory to the facts. The process was slow, and those who were concerned in it were unconscious of it. But this we may say, that before the end of the thirteenth century the organization that was to be found in our greater towns was of a kind which imperatively demanded (so it will seem to us) some new idea. Such old categories of legal thought as the vague communitas were no longer adequate to express the relationships and habits that were being formed, and a new line had to be drawn between the boroughs and the other communitates. We may add too that Bracton saw this, though he saw it dimly.489 And if the facts were ready for the theory, a theory was being fashioned for the facts, though those who were preparing it were Italian lawyers. But as yet there had been no junction between English life and Italian thought. “Church” and “borough” are still standing far apart from each other; the English courts are not yet co-ordinating “mayor, aldermen and burgesses” with “abbot and monks” under the rubric of Corporations. What happened in the fourteenth and fifteenth centuries must some day be told us by one who is adequately learned. If we may venture a guess, he will say that, along with some ideas which were of the highest value, there stole into our temporal law others which should have been left in that ecclesiastical sphere which was their native home.490 But for us at the moment all this lies in the future. At present we have not heard those negative propositions which will give a keen edge to the law of corporations. We listen in vain for any one to say that the lands of the city are not simply the lands of the citizens, or that a debt owed by the borough is not a debt owed by the burgesses. So long as such sayings are not said, the personality of the group-person is latent and insecure.
The communities and the nation.At the present time there is perhaps some danger that a little too much stress will be laid on the communal traits of medieval history. It is a hard task to see old times just as they were. To a school which could only perceive individual men and a “sovereign one or many” succeeds another which, at least when dealing with medieval history, exalts the independence and autonomy of some or all of those communities which lie within a nation. Certainly it was high time that this reaction should be felt; but it must not carry us beyond the truth, and in this chapter we may have seen enough to give us pause before we assent to any grand dogma which would make “communalism” older than “individualism.” The apparent communalism of old law covers an individualism which has deep and ancient roots. Every right, every duty, however communal its character, spontaneously becomes the right, the duty, of an individual by attaching itself to the land that he holds. Because he holds a certain messuage he may turn out two oxen on “the common of the vill”: because he holds a certain messuage he is a doomsman of the county court. And then again in the twelfth and thirteenth centuries we have seen some mighty forces, making not against, but for communalism of a certain sort. In many quarters we have seen their play. The county is amerced for false judgments, the hundred is fined for murders, the townships are compelled to attend the justices, men are forced into frankpledge, the burghers are jointly and severally liable for the firma burgi, the manorial lord treats his villeins as one responsible group. Men are drilled and regimented into communities in order that the state may be strong and the land may be at peace. Much of the communal life that we see is not spontaneous. The community is a community, not because it is a self-sufficient organism, but because it is a subordinate member of a greater community, of a nation. The nation is not a system of federated communities; the king is above all and has a direct hold on every individual. The communities are far more often the bearers of duties than of rights; they appear before the courts chiefly as punishable units; the proudest city will lose its liberties if it exceeds or abuses those powers that are given to it from above. But above the king himself—thus even a royal justice may think—is the greatest of all communities, “the university of the realm.”491 The England that saw the birth of English law, the England of Magna Carta and the first parliaments, was a much governed and a little England.
end of vol. i
[p. 585, note 91.] Add a reference to J. H. Round, The Hundred and the Geld, E. H. R. x. 732.
[1 ] Y. B. 18 Edw. II. f. 571: “le Priour fuit son justisable.” Stat. 28 Edw. III. c. 11: “celui qe est sovereign de la ville.”
[2 ] Bracton, f. 107–8.
[3 ] Bracton, f. 108: “Dictum est in proximo de ordinaria iurisdictione quae pertinet ad regem, consequenter dicendum est de iurisdictione delegata.”
[4 ] This is not strictly true, for the vill may well extend into two or three hundreds and into two counties. For some examples see Committee on Parish Boundaries, Parl. Pap. 1873, vol. 8, p. 225.
[5 ] See Stubbs, Const. Hist. i. 122.
[6 ] A great deal of information may be gained from Schedule M to the Statute 2–3 Will. IV. c. 64.
[7 ] In 1269 the under-sheriff of Staffordshire is charged with taking a vill out of one hundred to put it in another which he farmed in fee; Staffordshire Collections (Salt Soc.), iv. 170.
[8 ] Stubbs, Const. Hist. i. 389–94; Round, Geoffrey de Mandeville, 287.
[9 ] The continued use of the English title sheriff might be sufficiently proved by its reappearance on the surface of legal history in later days; but even in the thirteenth century we hear of local exactions which are known as shirreves welcome, scirrewescot, chiryveschot, i.e. auxilium vicecomitis; R. H. i. 157, 454, 484.
[10 ] Reference is here made to the chapter De heretochiis (Schmid, cap. 32 a) interpolated into some copies of the Leges Edwardi Confessoris. As to hereditary sheriffs, see Stubbs, Const. Hist. i. 295; as to elective sheriffs, ibid. ii. 206–8.
[11 ] Stubbs, Const. Hist. i. 505. Though we see no reason to reject the common doctrine that the general institution of coroners is due to the measure of 1194, still the office of keeping the pleas of the crown may have been known at an earlier time. See Gross, Coroners’ Rolls (Seld. Soc.) Introduction.
[12 ] Calendarium Genealogicum, p. 487; a lady ends a document with these words “In cuius rei testimonium sigillum meum praesentibus apposui, et quia sigillum meum est incognitum sigillum comitatus Devoniae apponi procuravi.” At a later time the hundreds have seals, but these are the outcome of a statute relating to the transmission of vagrants.
[13 ] Rot. Cart. 122, 132. Rot. Cl. i. 457; ii. 25, 169. Henry II. by charter granted to the men of Derbyshire that their county court should be held at Derby instead of at Nottingham.
[14 ] It will be remembered that to this day the county is an indictable unit, though no corporation. The difficulty occasioned by the fact that the county could not hold land was met by a statute of 1858 (21 and 22 Vic. c. 92), which provided for lands being held by the clerk of the peace. At a much earlier time we find the judges puzzled by the question how damages under the Statute of Winchester can be recovered from the county; Y. B. Pasch. 17 Edw. II. f. 539.
[15 ] Select Pleas of the Crown, i. pl. 38. This volume contains many other illustrations of the same principle. See also Madox, Exch. i. 567.
[16 ] Note Book, pl. 40, 212, 243, 445, 955, 1019, 1130, 1412, 1436, 1672, 1730. Observe in pl. 1019 “Et comitatus hoc defendit praecise,” and in pl. 1412 “Et comitatus dicit quod tale fuit recordum.”
[17 ] Madox, Exch. i. 556 (31 Hen. III.); the whole county of Norfolk owes £11 for a false judgment.
[18 ] See Stubbs, Const. Hist. ii. 208–232.
[19 ] Maitland, The Suitors of the County Court, E. H. R. iii. 418.
[20 ] In some cases it is quite clear that the immunity excuses not only the grantee himself but also his tenants from suit of court; in other cases this is left in some doubt. See our first edition, i. 523.
[21 ] Charter of 1217, cap. 42: “Nullus comitatus de cetero teneatur nisi de mense in mensem, et ubi maior terminus esse solebat, maior sit.”
[22 ] Note Book, pl. 1730: “Comitatus Lincolniae semper solet sedere de xl. diebus in xl. dies.”
[23 ] Note Book, pl. 40.
[24 ] Statutes, i. 118; Ann. Dunstap. p. 139.
[25 ] Edward ii. 8.
[26 ] Edgar i. 1.
[27 ] Edgar iii. 5.
[28 ] Cnut ii. 18.
[29 ] Writ in Select Charters; Liebermann, Quadripartitus, 165.
[30 ] Leg. Henr. 7, 8, 51 § 2.
[31 ] In an action for land in a local court, the person in possession was often allowed “three summonses, three defaults and three essoins before appearance” (Select Pleas in Manorial Courts, i. 107, 112–20) so that if the court sat but twice a year he would have some four years before the day for answering the demandant would arrive. The ms Book of Cerne in Camb. Univ. Libr. tells of a suit between the Abbot of Cerne and the Prior of St. Swithin’s which has come before ten successive county courts and yet seems far from a judgment.
[32 ] Bracton, f. 125 b. This rule which required that the outlawry should not take place until the fifth, or according to another mode of reckoning the fourth, county court, is recognized in a case of 1221: Select Pleas of the Crown, vol. i. pl. 129. So also there is constant mention in the A.-S. dooms of the voucher of successive warrantors, and each voucher must have involved at least one adjournment.
[33 ] See e.g. the account of Oxfordshire, R. H. ii. 835–77; of many of the landowners it is said “facit duos adventus ad magnos comitatus Oxoniae,” or “facit bis sectam ad duos magnos comitatus Oxoniae.” So in Yorkshire; “facere solebant unum adventum singulis annis ad generalem comitatum Eboraci”; P. Q. W. 217.
[34 ] The difficulty noticed in this paragraph is discussed by Stubbs, Const. Hist. i. 649. All that we can add to his explanations is the fact that long after 1217 two half-yearly meetings of the county court are distinguished as “the great counties” from the ordinary monthly meetings, and the suggestion that, though the Leges Henrici speak only of the great half-yearly meetings, there may also have been monthly meetings attended only by a small body of suitors. The history of the Frankish courts supplies analogies.
[35 ] R. H. ii. 483: “W. G. holds two virgates of the Abbot of Ramsey. For one virgate he does suit to the county of Cambridge and the hundred and pays 12 d. towards the sheriff’s aid. For the other virgate he pays 5 s. a year to the Abbot and does suit to the Abbot’s court at Broughton.” Y. B. Trin. 7 Edw. II. f. 243: “Your predecessor enfeoffed William of the one virgate to hold by homage, fealty, three shillings a year and suit to his court, and for the other virgate, to do suit to the hundred of A. and the county of Hertford for the vill of L.”
[36 ] Testa de Nevill, 404–5. The word translated as doomsman is iudex, instead of which index is too frequently printed.
[37 ] R. H. ii. 488.
[38 ] R. H. i. 455. See also the hundred of Humbleyard, ibid. 471.
[39 ] R. H. i. 498.
[40 ] P. Q. W. 730.
[41 ] Thus Baldwin Wake holds a manor of Nicholas de Meynill who holds of Peter de Maulay; Peter does suit to the county of York by his steward for all his tenants; therefore none is due from Baldwin; P. Q. W. 199. In the fifteenth century the stewards of the great lords seem to have been the electors for the county of York. See Stubbs, Const. Hist., iii. 424, as to the peculiar character of the Yorkshire elections.
[42 ] It may be necessary to warn the reader that the “suit real” of old books, which is contrasted with “suit service,” suggests a falsehood to us moderns. The word “real” in this context means “royal,” and an attempt was made at times to prevent this “suit royal” from becoming “real” in the sense in which we use that word. See Y. B. 33–35 Edw. I. p. 91.
[43 ] Petition of the Barons, c. 24.
[44 ] Provisions of Westminster, c. 1, 2, 3; Stat. Marlb. c. 9.
[45 ] Writ of 43 Hen. III. found in ms Registrum Brevium; Camb. Univ. Lib. Kk. v. 33.
[46 ] The Court Baron (Selden Soc.), pp. 80–81.
[47 ] See Riess, Geschichte des Wahlrechts, cap. 3; but Riess, to our thinking, passes too lightly by the duty of suit of court.
[48 ] For the form of the summons see Rot. Cl. i. 380, 473, 476; ii. 151, 213; Bracton, f. 109 b. It runs thus:—“Summone per bonos summonitores omnes archiepiscopos, episcopos, comites, et barones, milites et libere tenentes de tota bailliva tua et de qualibet villa iiij. legales homines et praepositum et de quolibet burgo xij. legales burgenses per totam ballivam tuam et omnes alios de bailliva tua qui coram iusticiariis nostris itinerantibus venire solent et debent.” Now to say “Summon all the archbishops, bishops, earls, barons, knights and freeholders of your bailiwick and all others of your bailiwick who are wont and ought to attend the justices” is to use a phrase which is not too precise. May it not mean “Summon those (freeholders and others) who are wont and ought to come”?
[49 ] Thus a tenant of the Abbot of Gloucester is bound to acquit the whole vill from suit to all courts of the hundred or of the county or of justices and all other suits which pertain to the said vill; Cart. Glouc. i. 386. At Northleach a tenant of the abbot is bound to do suit for his lord to the county and the hundred and must remain before the justices in eyre during the whole of their session; ibid. iii. 180.
[50 ] Leg. Hen. 7 § 2.
[51 ] The vicedomini may possibly be the vicecomites, the sheriffs, who, if this be not so, are omitted from the list; but the three titles vicedomini, vicarii, centenarii coming together suggest that the writer is using up all the titles that he knows, whether French or English. Neither the vidame nor the viguier took root in En gland; the centenarii may be the bailiffs of the hundreds, but the conjunction of these three titles is rather French or Frankish than English. Stapleton, Norman Exchequer Rolls, i. xxxv, says that the titles vicarius and centenarius are not met with in Norman diplomas of a later date than the eleventh century.
[52 ] Neither the theory that the vavassor must needs be a vassal’s vassal, nor the derivation of his name from vassi vassorum can be regarded as certain. In England the word is rare. We said somewhat more of it in our first edition, i. 532. It is very remarkable that in the list of titles now under discussion milites does not occur.
[53 ] Thus in the Pipe Roll of 31 Hen. I., p. 28, there is mention of the “minuti iudices et iuratores,” whose misdoings have rendered them liable for a sum of more than 300 marks. Elsewhere the same document uses the terms “minuti homines” and “smalemanni” as though they represent a well-recognized class: thus p. 103, “iuratores et minuti homines”; p. 132, “de tainis et dreinnis [thegns and drengs] et smalemannis inter Tinam et Teodam.”
[54 ] The difficulty is increased by Leg. Hen. Prim. 29 § 1, where it is said that the king’s judges are to be the barons of the county who have free lands, while villeins, cotsets, farthinglanders (ferdingi) and other unsubstantial folk (viles vel inopes personae) are not to act as judges. This passage seems to contemplate the existence of no class intermediate between barones and villani; but, unless both of these terms are used with enormous licence, such a class there certainly was.
[55 ] Leg. Hen. 7 § 7.
[56 ] Stat. Mert. c. 10.
[57 ] Leg. Hen. c. 7 § 7.
[58 ] Thus the Prior of Deerhurst owes a single suit to the county of Oxford for his manor of Taynton; this is done for him by J. S., his attorney enfeoffed for this purpose in ancient times; R. H. ii. 733.
[59 ] In one of the Phillipps mss of Bracton, No. 3510, f. 36 d., a note from the early years of the fourteenth century says that when the county is fined for false judgment, “tunc soli liberi homines per quos iudicia talia redduntur divites et pauperes pro aequalibus portionibus contribuunt, nullo modo disenarii, i.e. custumarii”; but “soli custumarii et non liberi homines” pay the murder fine.
[60 ] See Hazlitt’s edition of Blount’s Tenures, p. 174, citing the Hundred Roll of Hereford; “solebat facere sectam ad hundredum praedictum et esse unus doomsman de eodem hundredo.” But this has not been found in the printed Hundred Roll.
[61 ] Hazlitt’s Blount, pp. 46, 152, “per servitium inveniendi unum iudicatorem”; Select Pleas in Manorial Courts, i. p. lxv, “pro defectu iudicatorum.” In the Pipe Roll of 31 Hen. I. we find p. 27, “iudicatores comitatus,” p. 28 “minuti iudices,” p. 34 “iudices et iuratores de Eborascira,” p. 97 “de iudicibus comitatus et hundretorum.”
[62 ] In Normandy the contrast is between the iusticiarius and the iudiciarii. See Somma, pp. 31–32.
[63 ] When a peccant vicar choral of Salisbury is brought before the dean and chapter, the dean asks the canons for a judgment: Reg. St. Osmund, ii. 24.
[64 ] Hengham Magna, cap. iv.
[65 ] Note Book, pl. 1730. See also pl. 212.
[66 ] Smyth, Lives of the Berkeleys, iii. 12.
[67 ] The Court Baron (Selden Soc.), p. 48.
[68 ] Placit. Abbrev. 268–69.
[69 ] Placit. Abbrev. 229, 287.
[70 ] Leg. Henr. c. 5 § 6.
[71 ] Leg. Henr. c. 31 § 2: “vincat sententia meliorum et cui iustitia magis acquieverit.” Even if iustitia here means “justice” and not “the justice,” still it would be for the justice to decide on which side justice lay. In these Leges the title iustitia seems to be often given to the sheriff or other president of the court. The general theory of the time demands that the prevailing opinion shall be that of the maior et sanior pars. See above p. 536. Also see the Norman Somma, p. 33: if the discreter folk are in the minority, judgment shall be deferred to another session.
[72 ] Leg. Henr. c. 31 § 7: “Unusquisque per pares suos est iudicandus, et eiusdem provinciae; peregrina vero iudicia modis omnibus submovemus.” Ibid. c. 32 § 1: “nec summorum quispiam minorum iudicatione dispereat.”
[73 ] Leg. Henr. c. 31 § 8: “In quibusdam locis utrumque eligitur iudicium, medietas ab eis quorum est negotium.” The history of Ramsey Abbey, c. xlvii. p. 79, describes an action brought in the days before the Conquest: “xxxvi barones de amicis utriusque partis pari numero electos ipsi iudices constituerunt.”
[74 ] Bracton, f. 115 b.
[75 ] Placit. Abbrev. p. 85. The word occurs twice in the record.
[76 ] Britton, i. 155; Fleta, 133.
[77 ] Stat. 6 Edw. I. c. 8.
[78 ] Maitland, History of the Register, Harv. L. R., iii. 112.
[79 ] Maitland, Glanvill Revised, Harv. L. R. vol. vi.
[80 ] John Wilkes was outlawed in the county court of Middlesex “at the Three Tons in Brook Street near Holborne in the county of Middlesex”: Burrow’s Reports, p. 2530.
[81 ] Stubbs, Const. Hist. ii. 208–216.
[82 ] Northumberland Assize Rolls, p. 208.
[83 ] Select Pleas of the Crown, pl. 176.
[84 ] Rot. Parl. i. 397.
[85 ] Hengham Magna, cap. 4: “quia frequenter evenit quod comitatus tenentur in silvis et campestribus foris villis et alibi.”
[86 ] Rot. Parl. i. 379; see also Stat. 19 Hen. VII. c. 24.
[87 ] P. Q. W. 159.
[88 ] See above, p. 578.
[89 ] Rot. Parl. i. 296.
[90 ] R. H. i. 142.
[91 ] Northumberland Assize Rolls (Surtees Soc.), p. 196: “infra quatuor bancos.” In the borough court at Totnes proceedings take place “inter quatuor scamna gildhallae”; Third Rep. Hist. mss Ap. 342. In later days the suitors of a court baron are sometimes called its “benchers.”
[92 ] Population Abstract, 1831, vol. i. pp. xiv–xv.
[93 ] Thus the hundred of Barclay seems to consist of the parish of Biddenden: ibid. i. 266.
[94 ] Leg. Hen. 7 § 4.
[95 ] See above, pp. 566–67.
[96 ] R. H. ii. 318.
[97 ] Smyth, Lives of the Berkeleys, iii. 13.
[98 ] R. H. ii. 214, 217.
[99 ] R. H. ii. 204–5.
[100 ] R. H. ii. 230–38.
[101 ] Rot. Parl. i. 381.
[102 ] Stat. Wint. 13 Edw. I.
[103 ] Maitland, Domesday Book and Beyond, p. 355.
[104 ] Leg. Henr. c. 8.
[105 ] Charter of 1217, c. 42.
[106 ] So in the court leet the bailiff is sole judge—“judge for the day”: Y. B. 21–22 Edw. I. p. 25: “le baylif en ceo jor ad le regal e dorra jugement.”
[107 ] Select Pleas in Manorial Courts, pp. xxvii–xxxviii.
[108 ] Fortescue, De Laudibus, cap. 24: “Hundreda vero dividuntur per villas, sub quarum appellatione continentur et burgi atque civitates . . . Vix in Anglia est locus aliquis qui non infra villarum ambitus contineatur, licet privilegiati loci infra villas de eisdem villis pars esse non censentur.” The general theory appears in the rule which expects that everyone who brings an action for land will be able to name the vill or vills in which the land lies. The law about this matter, however, was elaborate; in some actions it was enough to name a hamlet, not so in others; see Y. B. Mich. 15 Edw. II. f. 450. We hear of a spot in which the sheriff held his turn which was in no vill but was common to several vills, Y. B. Pasch. 17 Edw. II. f. 536 (a folio so numbered which seemingly ought to be numbered 544).
[109 ] That the Saladin tithe of 1188 was collected from the parishes is no real exception; payment of it was enforced as a religious duty by excommunication.
[110 ] This process begins with Stat. 14 Car. II. c. 12, sec. 21. At length in 1889 the rule is laid down that in statutes the word “parish” is to mean prima facie “a place for which a separate poor rate is or can be made, or for which a separate overseer is or can be appointed”; Stat. 52 and 53 Vic. c. 63, sec. 5; see also 29 and 30 Vic. c. 113, sec. 18. We could wish our newly invented “parish councils” a better name.
[111 ] See the very interesting map of Donisthorpe given in Gomme, Village Community, p. 288, and at the end of the Report of the Committee on Commons’ Inclosure, Parl. Pap. 1844, vol. 5. See also Report of Committee on Boundaries of Parishes, Parl. Pap. 1873, vol. 8, Minutes of Evidence, p. 85, where Col. Leach mentions a case in Gloucestershire, of which the present writer has some knowledge:— some ten parishes were intermixed in the most intricate fashion.
[112 ] Col. Leach, loc. cit. p. 85.
[113 ] Report of Committee on Parish Boundaries, Appendix, pp. 217–19.
[114 ] Ibid. App. p. 242.
[115 ] Y. B. 15 Edw. II. f. 450.
[116 ] The so-called Statute of Exeter, Statutes of the Realm, vol. i. p. 210, ordains an inquiry which is to be made by vills, demi-vills and hamlets, a vill being represented by eight men, a demi-vill by six, a hamlet by four. But this seems exceptional. The meaning of a demi-vill will become plainer hereafter.
[117 ] Domesday and Beyond, pp. 10 ff.
[118 ] The notion that villata is a diminutive of villa is groundless. North Riding Records, vol. iv. [N.S.] p. 174: “et si villate villarum predictarum non veniant . . .”
[119 ] Thus P. Q. W. 293, the communitas of a vill goes to the sheriff’s turn by its tithing-man; R. H. i. 275, the coroner’s clerk exacted money from the communa of the vill of Sutton.
[120 ] Summons of the Eyre, Stubbs, Select Charters, ann. 1231; Maitland, Pleas of the Crown for the County of Gloucester, passim.
[121 ] See writ of 1234, Ann. Dunstap. p. 139; R. H. ii. 29, presentments of the crown are made in the county court by the four neighbouring vills (i.e. neighbouring the scene of the crime) and if they do not come they are amerced; they are amerced once more when the justices in eyre come round; this is matter of complaint.
[122 ] Bracton, f. 121 b. Gross, Coroners’ Rolls, passim.
[123 ] See below, p. 598.
[124 ] See Statute 3 Hen. VII. c. 1; Coke, 3rd Institute, 53; Hale, Pleas of the Crown, i. 448. The rule seems to be an ancient one; see Gloucestershire Pleas of the Crown, pp. 60, 147.
[125 ] Select Pleas of the Crown, pl. 173.
[126 ] Ibid. pl. 135.
[127 ] Madox, Hist. Exch. i. 541–68.
[128 ] Stubbs, Select Charters: “cum arcubus et sagittis et aliis levibus armis quae debent provideri ad custum totius villae et quae semper remaneant ad opus praedictae villae.”
[129 ] The documents of 1181, 1233, 1252, 1253, 1285 are all printed in the Select Charters.
[130 ] R. H. i. 308.
[131 ] Pipe Roll, 12 Hen. II. p. 49.
[132 ] Note Book, pl. 1170.
[133 ] R. H. ii. 666.
[134 ] R. H. ii. 497–98: “Thomas de Bodeham appropriavit sibi de communa de Borewelle.” This is a little ambiguous and perhaps should be translated by “T. de B. has appropriated part of Burwell common.”
[135 ] R. H. i. 54.
[136 ] Bracton, f. 124–25.
[137 ] Bracton, f. 124 b; “clericus, liber homo et huiusmodi.”
[138 ] Du Cange’s examples s.v. manupastus are almost exclusively from England or Normandy.
[139 ] Bracton, f. 124 b. He is here making use of Leg. Edw. Conf. 20 (19).
[140 ] See the facsimile of a part of a Norwich frankpledge roll in Leet Jurisdiction in Norwich (Selden Soc.), p. xlvii.
[141 ] See the Hundred Roll for Kent, where the borgha seems often to be a tract of land. Thus, p. 202, a murder has been committed “in borgha de Patrichesburn.”
[142 ] Palgrave, Engl. Commonwealth, vol. ii. pp. cxx–cxxvi; Stubbs, Const. Hist. i. 91–95; Maitland, Pleas of the Crown for Gloucester, p. xxxi.
[143 ] Palgrave, Engl. Commonwealth, vol. i. pp. cxxiii–iv; Stubbs, Const. Hist. i. 95. In Leg. Edw. Conf. 20 (19), it is said that what the English (Angli) call frithborgas the Yorkshiremen (Eboracenses) call tenmannetale. But whatever may be the origin of this latter word, we only find it elsewhere as the name of a money payment. Thus Hoveden, iii. 242: in 1194 Richard imposed a tax of two shillings on the carucate “quod ab antiquis nominatur Temantale.” See Rievaulx Cartulary, p. 142: “Danegeld id est Themanetele”; compare Whitby Cartulary, i. 196–97. In northern charters the word occurs commonly enough in the list of immunities.
[144 ] Ass. Clarend. c. 9. There is to be no one within castle or without, no, not even in the honour of Wallingford, who shall deny the sheriff’s right to enter his court or his land to view the frankpledges; all are to be under pledges and are to be placed in free pledge before the sheriff.
[145 ] Sometimes the tithing-man was elected by the men of the tithing. Rot. Hund. i. 212 (Kent): “J. B. distrinxit J. de E. ut esset borgesaldre sine electione borgae suae.” In some boroughs, e.g. Norwich, men who were in every sense freemen were in frankpledge, see Hudson, Leet Jurisdiction in Norwich (Selden Soc.), p. lxvii. But on the plea rolls of some counties, e.g. Staffordshire, we find entries which state that a man is not in frankpledge “quia liber.”
[146 ] Select Pleas in Manorial Courts, p. 169.
[147 ] Leg. Edw. Conf. 26 (28). This in all probability is mere fable.
[148 ] A similar distinction is drawn for France by Esmein, Histoire du droit français, ed. 2, p. 259.
[149 ] Bracton, f. 55 b.
[150 ] Select Pleas in Manorial Courts, pp. xviii–xxii, lxxvii.
[151 ] P. Q. W. 308. Thornton makes the same point against the Abbot of Ramsey; P. Q. W. 305.
[152 ] P. Q. W. 86; see also 10, 87, 88, 105, 242.
[153 ] P. Q. W. 4.
[154 ] Bracton, f. 56.
[155 ] P. Q. W. 4, 259, 303.
[156 ] This curious argument is used by William Inge against the Abbot of St. Mary’s, York; P. Q. W. 122: by Gilbert Thornton, ibid. 671: and more than once by Hugh Lowther, ibid. 676–77. Thus against the Bishop of Coventry, Lowther says, “The bishop can not show that any of his predecessors came with the Conqueror and obtained these liberties by [the] conquest (per conquestum), for the bishop and all his predecessors were, as one may say, men of religion (quasi religiosi, i.e. in the same category as professed monks) and they and their church were enfeoffed by others, and therefore they cannot claim these franchises from time immemorial.” These arguments about liberties obtained by conquest afforded some ground for the Earl of Warenne’s famous assertion that the sword was his warantus.
[157 ] P. Q. W. 305.
[158 ] Bracton, f. 34 § 3.
[159 ] Thus the charter of 1199 for the Templars (Rot. Cart. p. 1) specially mentions, besides the minor local dues, aids of the king and of the sheriffs, hidage, carucage, danegeld, horngeld, scutage, and tallage. See also the charter of the Hospitallers, ibid. p. 15, and that for Sempringham, p. 18.
[160 ] See the charters of the Templars and Hospitallers and the Peterborough charter, Rot. Cart. 82.
[161 ] Rot. Cart. 49.
[162 ] See above, pp. 290, 370.
[163 ] Rot. Cart. 204 (ad 1215).
[164 ] Cart. Rams. ii. 62 (ad 1202).
[165 ] Cart. Rams. passim, e.g. i. 456: “et sciendum quod omnes terrae hydatae praeter dominicum et terras liberorum dant ad auxilium vicecomitis; terris autem liberorum remisit . . . Hugo Abbas . . . praedictum auxilium.”
[166 ] Maitland, Domesday Book and Beyond, 278 ff.
[167 ] Charter of the Hospitallers (1199), Rot. Cart. p. 15: “et hamsoka et grithbrige et blodwita et ficthwita et flictwita et fredwita et hengwita et leirwita et flemenesfrith et murdro et latrocinio et ordel et oreste.”
[168 ] Cnut, ii. 12–15.
[169 ] Rot. Cart. 2, 20, 22, 32, 33.
[170 ] A comparison of the Exposiciones Vocabulorum or glossaries of Anglo-Saxon law terms will be found in the Red Book of the Exchequer iii. 1032. It is clear that in the thirteenth century there was but little agreement as to the meaning of these terms, whence we may draw the inference that they had become of small value. Thus Henry III. granted a charter to the Abbot of Colchester for the purpose of explaining the words frithsokne, infangenethef and flemenefremth contained in a charter of Richard I.; see Rot. Cart. Introduction p. xxxvii. There was much doubt as to what was meant by hengwite and as to the exact limits of the right of utfangenethef. In cases of quo waranto the king’s advocates are fond of puzzling their adversaries by asking them to explain what they mean by these old words. Thus the Prior of Drax is asked to construe sak sok tol et them; “et Prior nichil dicit”; P. Q. W. 211. Still on examination of the Charter Rolls it will appear that these words were not thrown about quite at haphazard; thus utfangenethef was much rarer than infangenethef. William Marshall makes a liberal grant of jurisdiction to Tintern Abbey, but expressly reserves utfangenethef to himself; Monast. v. 269.
[171 ] Thus compare in Rot. Cart. the charters for the Temple (p. 1), the Hospital (p. 15), Christ Church, Canterbury (p. 24), St. Edmunds (p. 38), which convey grithbrice etc., with those for Dereham (p. 22), Fontevraud (p. 72), Norwich (p. 81), which declare that the land is to be free of these things. Sometimes we find an intermediate formula, e.g. in the charter for Sempringham (p. 18); the land is to be held free of gritbriche, blodwite etc., and the monks are to have flemenesfrit etc. The point to which attention is drawn is well illustrated by the charter for the Bishop of Salisbury (p. 66); the land is to be exempt from blodwite etc. and frankpledge; but on this follows the qualification “but so that the view of frankpledge be made in the bishop’s court before our serjeant.” The natural result of declaring the bishop’s land to be free of frankpledge would be to give the bishop the right of holding the view without the interference of any royal official. The Bishop of Winchester is asked by what warrant he claims view of frankpledge; he produces a charter acquitting his lands of frankpledge; the king’s advocate insists that this does not give him the view and craves judgment: judgment is reserved; P. Q. W. 83. The same point is taken against the Hospitallers, ibid. 92: and against the Prior of Coventry, ibid. 242: but in each case judgment is reserved.
[172 ] Leg. Edw. Conf. 22: “ Tol, quod nos vocamus theloneum, scilicet libertatem emendi et vendendi in terra sua”; P. Q. W. 275: “ Thol, quite de toun doner”; P. Q. W. 511: “ Tol . . . pro voluntate sua tallagium de villanis suis.”
[173 ] P. Q. W. 275: “ Them, aver progeny de vos humes”; Fleta, f. 62: “ Them acquietantiam amerciamentorum sequelae propriorum suorum.”
[174 ] Hoveden, ii. 242: “Sackke, interpretatur iurisdictio, id est, curt et justise.” Camb. Univ. Lib. ms Dd. vii. 6. f. 63 b: “quia sake anglice encheson gallice, et dicitur for wych sake pur quele encheson.” At Manchester we find a payment called sakfe (sake-fee): “debet ei sakfe et sectam ad curiam”; Roll for Pasch. 34 Hen. III. (No. 140) m. 7.
[175 ] Maitland, Domesday Book and Beyond, pp. 80, 258.
[176 ] P. Q. W. 245: “sak, sok, toll et theam quae quidem verba habent referri ad cur[iam] baron[is] et non ad visum franciplegii.” Keilway’s Reports, 150 b: “chescun seignior de commen droit avera tiels choses.”
[177 ] The use that could be made of such a word as bloodwite is shown by a case in P. Q. W. 381–82. The Earl of Lincoln claims to hold plea of all trespasses committed within his fee, and to proceed either at the suit of a plaintiff or ex officio, provided that the word bloodwite be not mentioned: if it is mentioned, then his court does not meddle with the case any more, but leaves it for the county court. Thereupon he is asked whether he claims to punish a trespasser for wounds or bloodshed. Yes, he answers, provided that the plaintiff makes no mention of bloodwite. This from Edward I.’s day.
[178 ] See above p. 608. An early instance is found in Henry II.’s charter for Hurley, Monast. iii. 434: “Praeterea praecipio et firmiter defendo ne francos suos plegios prior et homines sui alibi annuatim recenseant nisi in eadem curia S. Mariae et sua.”
[179 ] P. Q. W. 235 (Abbot of Colchester), 275 (Abbot of Westminster); Rot. Cart. Introd. p. xxxvii.
[180 ] Rot. Cart. 80; John grants to the monks of Norwich “quod visus franciplegii fiat in curia eorum coram serviente nostro sine admixtione hominum alieni homagii.”
[181 ] P. Q. W. 85, 89, 90, 91, 293–95.
[182 ] P. Q. W. 5, 6, 7, 293.
[183 ] P. Q. W. 297.
[184 ] P. Q. W. 672.
[185 ] P. Q. W. 12.
[186 ] P. Q. W. 125–26, 189, 191–93, 196, 220, 226, 417, 599.
[187 ] Local Government Act 1888, sec. 46; the eastern division of Suffolk (which represents the liberty of St. Edmund), the isle of Ely, the soke of Peterborough, are still “administrative counties.”
[188 ] In old documents returnus is certainly commoner than returna.
[189 ] Select Pleas in Manorial Courts, pp. xxv–xxvi; but it was the Abbot of By-land, not of Kirkstall, who required the king’s justices to sit at Clifton.
[190 ] P. Q. W. 198.
[191 ] Stat. Marlb. c. 9.
[192 ] Select Pleas in Manorial Courts, p. xlviii.
[193 ] See above, p. 247.
[194 ] As to all this matter, see Select Pleas in Manorial Courts, Introduction. A good instance of the abandonment of a honorial court is given in Winchcombe Landboc, i. 13: “Aliquando autem omnes liberi maneriorum solebant sequi curiam Winchecombe de tribus septimanis in tres. Et Abbas Johannes concessit quod face-rent sectam illam in maneriis.”
[195 ] See above, p. 156.
[196 ] See Hengham Magna, cap. 3. See also Note Book, e.g. pl. 26, proceedings in the court of the Earl of Warenne carried as far as the first blows of the duel when a concord was made; pl. 40, proceedings in the court of Margery de Sumery irregularly removed into the county court; pl. 212, proceedings in the court of the Earl of Warenne removed into the county court; pl. 1436, lengthy and repeated litigation in the court of the Bp. of Bath; in one instance the first blows of the duel were struck; pl. 1847, proceedings in the court of the Constable of Chester stayed by a forged writ. Then see Y. B. Edw. II., f. 263 (Droit), 524 (Droit), 633 (Faux jugement), and 244 (Droit); in this last case a judgment was given in the lord’s court. Though the process of removing a writ of right from the feudal court was easily accomplished, it involved an assertion that the lord had made default in justice, and to this the demandant pledged his oath. A Registrum Brevium in the Cambridge Library, Mm. i. 27, describes the process thus—The demandant shall come with the bailiff of the hundred to the lord’s court and bring in his hand his writ and a book [presumably the gospels] and shall stand on the threshold of the court and swear on the book that he will plead no further in that court by the writ which he holds in his hand, since the court has failed to do him justice; and then he shall have a writ to the bailiffs and the sheriff stating that he has abjured the court and proved its default.
[197 ] See The Court Baron (Selden Soc.), p. 119, where the form of a writ of entry ad terminum qui praeteriit is adopted.
[198 ] Select Pleas in Manorial Courts, pp. 17, 34, 39, 123, 173.
[199 ] See the precedents in The Court Baron.
[200 ] Y. B. 44 Edw. III. f. 19 (Trin. pl. 14). The same suggestion is made in Y. B. 21–22 Edw. I. p. 157. The answer is “The court is judge.”
[201 ] See above, p. 373.
[202 ] See above, p. 370.
[203 ] Select Pleas in Manorial Courts, i. 49, 50; Mat. Par. Chron. Maj. vi. 438.
[204 ] Select Pleas in Manorial Courts, Introduction, p. lviij. See also Rot. Cur. Regis, i. 357.
[205 ] The Court Baron, pp. 121, 134.
[206 ] Select Pleas in Manorial Courts, i. 126 (ad 1301).
[207 ] See above, p. 365.
[208 ] Durham Halmotes, i. pp. xi, xii.
[209 ] Lit. Cantuar. ii. 84, 86, 98, 108.
[210 ] Ibid. 272.
[211 ] Mat. Par. Chron. Maj. vi. 438.
[212 ] See The Court Baron (Selden Soc.).
[213 ] Bracton, f. 98.
[214 ] Select Pleas in Manorial Courts, vol. i. p. lxii; add to the references Y. B. 7 Edw. II. f. 238: six suitors are not enough for a little writ of right in a manor on the ancient demesne.
[215 ] Munimenta Gildhallae, i. 116.
[216 ] Select Pleas in Manorial Courts, vol. i. pp. lx–lxxiii.
[217 ] The Court Baron, pp. 100, 110.
[218 ] Ibid. p. 101.
[219 ] Select Pleas in Manorial Courts, vol. i. pp. lx–lxxiii.
[220 ] Bracton, f. 212, 434 b.
[221 ] Maitland, Domesday Book and Beyond, 107 ff; and, to the contrary, Tait, E. H. R. xii. 768.
[222 ] Thus Scriven, Copyholds, i. 1:—“A manor . . . is the district . . . granted by the ancient kings of this realm to the lords or barons, with liberty to parcel the land out to inferior tenants, reserving such duties and services as they thought convenient, and with power to hold a court (from thence called a court baron), for redressing misdemeanours, punishing the offences of their tenants and settling any disputes of property between them.” With such a definition as this we cannot face the question—Why is it said of some tenant in chief that he has fifteen manors, no more and no less?
[223 ] See above, p. 384.
[224 ] See the instances given by Blakesley in L. Q. R. v. 114–15. Select Pleas in Manorial Courts, p. 44: “et insuper ad portam manerii dicti domini . . . hutesium levavit.” Durham Halmote Rolls, p. 11: “homines de Dalton solebant habere communam cum animalibus suis a porta manerii versus viam de Hesilden.” Ibid. p. 36: “et portas eiusdem manerii fregerunt.” R. H. ii. 578; the Abbot of G holds a manor in the vill of S which contains 5 acres, and he has in the same vill a garden which contains 3 acres, and he has there in demesne 8 score acres of land, 20 acres of pasture, and 4 acres of meadow, and he holds the said manor in almoin; he has also freehold and servile tenants. At the present day such a name as Dale Manor is often enough the name of a house.
[225 ] Bracton, f. 212, 434 b.
[226 ] Bodleian, Suffolk Court Rolls, No. 3. It is not here implied that the Eng. hall, A.-S. heal, has any etymological connexion with Lat. aula; nevertheless the two words seem to have been treated as exactly equivalent.
[227 ] R. H. ii. 487.
[228 ] Cart. Glouc. iii. 103, et passim. See also in R. H. ii. 695, the Templars’ estate at Bradwell; ibid. 714, Sampson Foliot holds the manor (expressly so called) of Albury but has no free tenant; ibid. 715, the Templars’ estate at Merton; ibid. 723, the Templars’ estate at Littlemore, they have no freeholder, the customary tenants attend their court.
[229 ] R. H. ii. 638–39; Chron. Petrob. (Camden Soc.), 160, 165.
[230 ] R. H. ii. 620.
[231 ] R. H. ii. 491.
[232 ] R. H. ii. 875.
[233 ] D. B. i. 336.
[234 ] R. H. i. 66.
[235 ] Maitland, Domesday Book and Beyond, 116.
[236 ] R. H. ii. 751.
[237 ] D. B. i. 154.
[238 ] R. H. ii. 160–69.
[239 ] D. B. ii. 283.
[240 ] R. H. i. 265.
[241 ] D. B. i. 338 b.
[242 ] D. B. i. 87 b.
[243 ] See Note Book, pl. 695.
[244 ] Ord. Vital. ii. 223.
[245 ] Leg. Hen. c. 7 § 7.
[246 ] See the documents of 1188 and 1198 in Stubbs, Select Charters.
[247 ] Stat. 28 Edw. III. c. 11: “et enquestes soient auxint prises en villes . . . par celui qe est sovereign de la ville.” Compare Stat. 23 Edw. III. (of Labourers) c. 4: “et si domini villarum vel maneriorum.”
[248 ] Bodleian, Suffolk Court Rolls No. 3:—“Villata dicit quod P. S. et E. C. fodierunt communam de H. . . . et quia consuetudo villae non est talis, consideratum est quod P. et E. distringantur.” Duchy of Lancaster Court Rolls, Bundle 62, No. 750:—“Consideratum est per totam villatam.” Select Pleas in Manorial Courts, i. 11: “Villata presentat.”
[249 ] As a matter of fact the title of the court on its roll will seldom use any of these terms. The court is simply the court of Mickleton or of Littleton.
[250 ] Bracton, f. 211, speaks of the formation of new vills. Seemingly if in the vill of A a new group of houses is formed, this may come to be known as the vill of B; but these houses will be also in the vill of A. In pleading one may describe them indifferently as in A or in B.
[251 ]Sir Moyle Finch’s Case, 6 Co. Rep. 64. The Statute Quia Emptores had the effect of preventing the creation (otherwise than by “act of law”) of new manors. But, in laying down the rule that even the king could not create a new manor, lawyers, being in this case unable to rely on the statute, invented the wholesome, if unhistorical, principle that a manor can only come to perfection by continuance of time.
[252 ] The differentiation of the two terms is marked by a case in Y. B. Edw. II. f. 65. Counsel says that in ancient times a man might levy a fine of a vill. This remark, which is true (for see e.g. Fines, ed. Hunter, i. 259), seems to imply that a vill was no longer regarded as a subject for conveyance. In the case before the court Henry Percy pleaded that the Abp. of Canterbury held of him four vills. This was rejected, and he tried to amend his plea by substituting for the four vills a manor to which three vills are appurtenant.
[253 ] Bracton, f. 434.
[254 ] Durham Halmote Rolls, Introd. p. viii.
[255 ] Thus the tenants of the manor of Bampton Pogeys which is held by Robert Pogeys must once a year appear in the court of Robert’s lord William of Valence; R. H. ii. 689.
[256 ] R. H. ii. 821.
[257 ] R. H. i. 33.
[258 ] R. H. i. 286.
[259 ] R. H. i. 364.
[260 ] R. H. i. 52.
[261 ] R. H. i. 220.
[262 ] Rot. Parl. i. 428.
[263 ] Gage, History of Suffolk, p. xii. ff.
[264 ] R. H. i. 255–56.
[265 ] R. H. i. 8. Entries which seem to imply that if a lord withdraws his land or his men from the scot and lot of the vill, the rest of the vill suffers, are common enough; thus e.g. R. H. i. 18, the whole of Eton from Baldwin’s bridge to Windsor bridge used to be at scot and lot with Windsor, but now it is “subtracted” by the King of Almain.
[266 ] Among the best of the many pamphlets on this subject are, W. H. Hale, The Antiquity of the Church Rate System (1837); W. Goode, A Brief History of Church Rates (1838); Robert Swan, The Principle of Church Rates (1837).
[267 ] The first clear tidings that we get as to the incidence of the duty that is cast upon the parishioners tell us that they contribute “secundum portionem terrae quam possident in eadem parochia”; Synod of Exeter (1287), Wilkins, Concilia, ii. 138. John de Athona, Const. Othoboni, can. improbam, gloss. ad v. peragendam, doubts whether the burden is “real” or “personal,” decides in favour of reality, but on either side alleges nothing beyond ineptitudes out of Cole and Digest. In 1275 the township of Graveley contracts with a mason for the repair of a wall of the church; he is to have 3 s. 2 d. for the work and a garb of wheat from every house; “the attorney of the township” sued him in the fair of St. Ives; Select Pleas in Manorial Courts, p. 150. In 1370 we see parishioners assembled, making a regular rate and distraining for it; but it seems exceedingly doubtful whether their resolution binds one who has not assented to it; Y. B. 44 Edw. III. f. 18 (Trin. pl. 13). This case does not look as if a “vestry” had an old and well-established power of granting, assessing and enforcing a rate. As to the church-wardens, they become prominent enough in the Year Books of the fifteenth century; but even then some elementary principles seem to be in dispute; see e.g. Y. B. 11 Hen. IV. f. 12 (Mich. pl. 23); 8 Hen. V. f. 4 (Hil. pl. 15); 37 Hen. VI. f. 30 (Trin. pl. 11). The Synod of Exeter in 1287 (see above) had said, “Ornamenta ecclesiae securae custodiae committantur, non tamen sub custodia laicorum, nisi id necessitas maior expostulaverit.” The Church-wardens’ Accounts edited by Bishop Hobhouse in 1890 for the Somerset Record Society point to the conclusion that in the fourteenth and fifteenth centuries the making and enforcement of a compulsory church-rate was a rare event; indeed the learned editor (p. 231) says that he knows of but one case before the reign of Elizabeth. The church-wardens seem to have got the money that they needed by means of voluntary gifts and legacies and of “church-ales” which opened the purses of the parishioners.
[268 ] The very fact that the mode of assessment was often changed points to the conclusion that there was no permanent organization apt for the purpose. In 1188 the individual taxpayer assesses himself but is liable to be checked by the lord’s steward and the parish priest; if they dispute the correctness of his estimate, four or six of his fellow parishioners are sworn to assess him. In 1198 the vill is represented by the lord of the vill or his bailiff, the reeve and four men. In 1207 the taxpayers declare their own liability. So in 1225 the taxpayer swears as to his own goods and those of two of his next neighbours, differences being referred to a jury of twelve. In 1232 four men are to be chosen (eligantur) in each vill, and they with the reeve are to make the assessment. In 1237 four men are to be chosen (eligi) in each vill to make the assessment. See the writs in Stubbs, Select Charters.
[269 ] Rot. Parl. i. 239, 240, 269, 442, 445, 450, 457; ii. 447.
[270 ] Rot. Parl. ii. 184–89, 213.
[271 ] Statute of Winchester, 13 Edw. I.
[272 ] Stat. 27 Eliz. c. 13. sec. 4: “And although the whole hundred where such robberies and felonies are committed . . . are by the said statutes . . . charged with the answering to the party robbed his damages; yet nevertheless the recovery and execution . . . is had against one or a very few persons of the said inhabitants, and he and they . . . have not heretofore by law had any mean or way to have any contribution of or from the residue of the said hundred.”
[273 ] Agricultural Community (transl. Ouvry), p. 60.
[274 ] R. H. ii. 529–34.
[275 ] Note Book, pl. 174, 330, 628, 839, 971, 1721; Year Book, Edw. II. f. 170, 183, 314, 327, 330. In Somersham the Bp of Ely had a great wood of 300 acres in which the men of the townships of Warboys, Woodhurst, Waldhurst, St. Ives, Needingworth and Holywell, all of which belonged to the Abbot of Ramsey, had common together with the men of the bishop’s large soke of Somersham; R. H. ii. 605; Cart. Rams. i. 283. See also Domesday Book and Beyond, 355.
[276 ] Note Book, pl. 174. The jurors cannot tell the limits of Billinghay and North Kyme in Lincolnshire, for there are marshes in which the men of these two vills intercommon.
[277 ] Reg. Malmesb. ii. 153–65. For another instance see ibid. ii. 185.
[278 ] In general a man could not get to a strip in the middle of an open field without crossing the strips of his neighbours. Only as a rare exception was the strip bounded by a cart-track.
[279 ] Williams, Rights of Common, p. 31.
[280 ] Scrutton, Commons and Common Fields, ch. 2.
[281 ] Bracton, f. 230, 230 b; Note Book, pl. 561. Bracton says that if in the same vill there are two neighbours who hold of the same barony and the same fee, then there is common between them, or rather not common, but a right which he prefers to call vicinitas, vicinage. Strictly construed this will mean that if in the same vill there are two freehold tenements held of the same manor there will be this “vicinage-right” between them, for if the two tenements are of the same manor then they must be of the same barony and the same [great] fee, unless indeed there is no barony or honour in the case at all. Also strictly construed it will mean that a freehold tenant of a manor will always have common or “vicinage-right” over any waste of his lord that lies in the same vill, and that the lord will have a similar right over his tenant’s waste, for lord and tenant will be neighbours holding of the same barony or honour, though they stand on different degrees of the feudal scale. Thus we should get the rule that in any usual case the freeholder has a right to turn out beasts on his lord’s waste without proving grant or prescription. It may be doubted, however, whether Bracton meant so much as this. The case that he had in view seems to have been that of two peers of the same tenure each of whom has a manor in one and the same vill. But his doctrine is not very plain.
[282 ] Vinogradoff, Villainage, 265–72.
[283 ] It is true that the often-discussed case Fitz. Abr. Comen, 26 (now printed in Bracton’s Note Book, pl. 1975), may look the other way; but the language of the Statute, of Bracton’s text, of the note in Note Book, pl. 1881, and the following extract from a plea roll of 1221, are in favour of what is here said. “De illis qui habent magnas terras et non possunt essartare de terra sua vel pastura pro illis qui habent unam virgatam terrae cum sufficienter habere poterunt communam.” This is found on a roll which was formerly numbered as Coram Rege Roll, Hen. III. No. 14, m. 31. It seems to be a note made by justices in eyre of a matter that requires reform.
[284 ] Oxford English Dictionary.
[285 ] Note Book, pl. 1662.
[286 ]Gateward’s Case, 6 Co. Rep. 59 b.
[287 ] We gave an account of this case in our first edition, vol. i. p. 623.
[288 ] See Fitz. Abridg. Assise, pl. 413, an extremely ill-printed case, seemingly of Edward I.’s time. Apparently however a freeholder was held bound by a by-law to which he had not assented, directing that trenches in the fen in which he had a right of cutting turf should be filled up. See also Y. B. 44 Edw. III. f. 18, 19 (Trin. pl. 13), where it is asserted and denied that commoners would be bound by a by-law to the effect that no one should turn out his beasts before a certain day.
[289 ] This point is brought out by some of the manorial extents, e.g. those in Cart. Rams., where it is specially noted of some freeholder that he participates wholly or in part “cum villata.”
[290 ] Nasse, Agricultural Community (transl. Ouvry), pp. 42–45. But we cannot find any evidence of oxen that belonged to the community. As to the “common boat” of Newton, which Nasse mentions, doubtless the lord was the owner of it.
[291 ] Durham Halmotes, pp. 23, 29, 34 etc.:—“reddendo antiquam firmam et faciendo domino et vicinis quae incumbunt.” In this paragraph we shall cite these interesting rolls, though they belong to the fourteenth century.
[292 ] Ibid. pp. 56, 63:—“nec aliqua vicinitas inde fit vicinis”; “nec invenire unum tenentem qui potest tenere vicinitatem.”
[293 ] Durham Halmotes, passim.
[294 ] Ibid. p. 83.
[295 ] Ibid. p. 20.
[296 ] Ibid. p. 22.
[297 ] See Skeat, Dict. s.v. by-law. There seems no doubt that the word bylaw means townshiplaw; it often occurs in the form byrlawe.
[298 ] See e.g. Durham Halmotes, where two formulas are constantly repeated, “Iniunctum est omnibus tenentibus villae,” “Ordinatum est ex communi assensu.”
[299 ] Durham Halmotes, p. 45.
[300 ] Ibid. p. 45.
[301 ] Ibid. p. 90.
[302 ] Ibid. pp. 39, 49.
[303 ] Ibid. p. 35.
[304 ] Ibid. pp. 49, 50.
[305 ] Ibid. pp. 35, 39.
[306 ] Ibid. pp. 33, 40. Two men have just been proved to be nativi when a command against the use of this word is issued.
[307 ] There are many cases on the Littleport rolls in which offenders are “removed from the vill.”
[308 ] Durham Halmotes, p. 46: G. F. is ordered to manure his land and to remove the crops that are growing on it without the lord’s licence and to behave like his neighbours on pain of losing the land.
[309 ] Note Book, pl. 161: “Nota quod liber homo non tenetur sequi molendinum domini sui nisi gratis velit.”
[310 ] Durham Halmotes, p. 69.
[311 ] Ibid. p. 109.
[312 ] Ibid. pp. 51, 73, 75.
[313 ] Madox, Firma Burgi, 54–56.
[314 ] Worcester Register, p. 47 a: “Curia cum pertinenciis et duae carucatae terrae de dominico cum pratis et proventibus et herietis et vilenagio traditae sunt villanis ad firmam.”
[315 ] See the survey of Hallow; on p. 49 b the firmarius is mentioned.
[316 ] R. H. ii. 307: “ballivi de Tychill nunquam cessaverunt occasionare villatam de Blida, gravando illam villatam per plures districtiones iniustas sibi factas.”
[317 ] What is the legal nature of the old German community (Genossenschaft)? Is it a group of co-owners? Is it an universitas? Is it tertium quid? This question raised by Beseler (Volksrecht und Juristenrecht, Leipzig, 1843, pp. 158 ff.) has of late found many answers. See Gierke, Deutsche Genossenschaftsrecht; Heusler, Institutionen, i. 253 ff.; Sohm, Die deutsche Genossenschaft, Leipzig, 1889.
[318 ] Ann. Dunstap. 378.
[319 ] Ibid. 392.
[320 ] See also Madox, Firma Burgi, 41. Under Edward III. it was alleged that the community of the vill of Tetsworth, in Oxfordshire, had given a house and garden to the church of that vill; but the Bishop of Lincoln proved that this was untrue; he and his predecessors had always been seised of the premises.
[321 ] Firma Burgi, 110.
[322 ] Assize Roll, Lincoln, No. 481 (57 Hen. III.): “ A. B. et C. D. pro se et tota communitate villatae de Helpingham optulerunt se versus E. F. et totam communitatem villae de Donyngton, et G. H., J. K. de Bykere et totam communitatem eiusdem villae de placito, quare cum mariscus de Helpingham exaquari vel assewari debeat et soleat per cursum cuiusdam aquae in mariscum in Donington et Bykere secundum consuetudinem et usum marisci quem cursum praedicti A. B. et alii et praedictae communitates reparare et sustinere debent et solebant etc.” The necessity of maintaining sewers, sluices, and water-gates sometimes gave rise to elaborate treaties between the freeholders of a large district. See, e.g. Selby Coucher, ii. 286.
[323 ] Actions by or against “the men” of places that are not boroughs will be found in Placit. Abbrev. pp. 2, 3, 24, 32, 95, 133, 140. The case on p. 95 is instructive:— ”The men of Thanet” complain that the Abbot of St. Augustine’s has exacted undue services, and they put in their place thirty named men to sue for them; their claim fails and they are adjudged to be in mercy, “save the other men of Thanet who took the abbot’s part.” Thus, after all, the plaintiffs are not all the men of Thanet, nor do they represent all. Then on p. 140 there is an action of trespass by the Abbot of Faversham against “the alderman and the whole community of that vill.” Judgment for damages is given against “all the men of Faversham” except four named persons. Here again, each individual “man” is acquitted or convicted on his own merits. See also Madox, Firma Burgi, 65: the king and “the king’s men of Headington” complain in the Exchequer that the Prior of St. Frideswide has withheld from the said men a customary dinner. No doubt many other instances might be found; but, having regard to the number of vills in England and to the frequency of actions in which the boroughs take part, such instances seem very rare.
[324 ] Domesday Book and Beyond, pp. 221 ff.
[325 ] E. A. Freeman, Macmillan’s Magazine, 1889, p. 20.
[326 ] Parl. Writs, i. 119, 120.
[327 ] Madox, Firma Burgi, p. 128.
[328 ] Placit. Abbrev. p. 98; Co. Lit. 109 b.
[329 ] Firma Burgi, chap. vi.
[330 ] See Gross, Bibliography of Municipal History (Harvard Historical Studies, 1897).
[331 ] In Gierke’s Genossenschaftsrecht the student will find an admirable model for the work that has yet to be done for England; it has induced us to recast this section of our book. Many sides of the subject have been excellently treated by Madox, Dr. Stubbs, Dr. Gross and Mrs. Green; but just the legal side has received too little attention. The History of Boroughs by Merewether and Stephens seems to us, for all its industry, to be a long mistake.
[332 ] See Maitland, Domesday Book, p. 172; also Maitland, Township and Borough, Cambridge, 1898.
[333 ] Not necessarily of one of the counties of a later time.
[334 ] For these knights, see Gross, Gild Merchant, i. 183. For arguments against this theory see Tait, E. H. R. xii. 773.
[335 ] It is not implied that all of these characteristics would be found in every borough. It is highly improbable that strict definition was possible in the tenth and impossible in the thirteenth century.
[336 ] The king can convey away his lordship; but in England it is not common to find a borough of high rank that has been mediatized. Leicester is the great example.
[337 ] See Liebermann, Das englische Gilde im achten Jahrhundert, Archiv für das Studium der neueren Sprachen, xcvi. 333; also Gross, Gild Merchant, i. 174 ff.
[338 ] In very recent days Ipswich was “bossed” by a Wellington Club and Cambridge by a Rutland Club. See also the story of Coventry as told by Mrs. Green, Town Life, ii. 205 ff.
[339 ] See Flach, Les origines de l’ancienne France, ii. 213 ff., especially 348. Also the entry touching Rhuddlan in D. B. i. 269, and Somma, p. 98. At this point Les Coutumes de Lorris, ed. Prou, 1884, are full of instructive matter.
[340 ] Thus the Abbot of Bec has burgage tenants at Atherstone in Warwickshire: Select Pleas in Manorial Courts, i. 40–41. So the Abbot of Malmesbury had burgage tenants at Pilton in Devonshire, Reg. Malmesb. ii. 34.
[341 ] In Edward III.’s reign the men of Bakewell in Derbyshire successfully prove their right to appear by twelve men; P. Q. W. 138. The eyre and hundred rolls show a good many “manors,” especially ancient demesne manors, appearing in this way, and it must be remembered that the manors of the ancient demesne were in some respects taxed like cities and boroughs.
[342 ] Riess, Geschichte des Wahlrechts zum englischen Parlament, 19, 20.
[343 ] Riess, op. cit. 23.
[344 ] Jocelin of Brakeland, p. 73. The charter is given in a Bury Register; Camb. Univ. Lib. Ff. ii. 33, f. 64 b.
[345 ] Parl. Writs, i. 123.
[346 ] Gross, Gild Merchant, ii. 33–35.
[347 ] See Pike, Introduction to Y. B. 16 Edw. III., Vol. 1, for an interesting discussion of the case of Wells.
[348 ] Co. Lit. 108 b. See Stubbs, Const. Hist. iii. 448–50; Riess, Geschichte des Wahlrechts.
[349 ] Besides the various borough charters we shall rely on the Munimenta Gildhallae, the Domesday of Ipswich (Black Book of the Admiralty, vol. ii.), the Records of Nottingham (ed. Stevenson), the Records of Northampton (ed. 1898), the Records of Leicester, of which by Miss Bateson’s permission we have seen proof-sheets, the Leet Jurisdiction in Norwich (Selden Soc.), a Norwich Custumal, a manuscript copy of which has been kindly lent to us by the Rev. W. Hudson, the Winchester Custumal (the French version of which is given by Smirke, Archaeol. Journal, ix. 69, and the English version by Toulmin Smith, English Gilds, 349), the Custumals of the Cinque Ports printed at the end of Lyon’s History of Dover, vol. ii., and the Custumal of Preston, printed in Dobson and Harland, History of Preston Guild. Dr. Gross’s Bibliography of Municipal History, New York, 1897, is an admirable guide.
[350 ] Munimenta Gildhallae, i. 102–12. Mr. Riley in his marginal notes misses the distinction between compurgation and trial by jury. Select Pleas of the Crown, i. pl. 82.
[351 ] Munim. Gild. i. 114, 195; Ipswich Domesday, p. 66; Norwich Custumal, c. 17; Records of Northampton, i. 234, 477.
[352 ] Reg. Brev. Orig. f. 2 b.
[353 ] Riley, Chronicle, p. 51. Select Pleas in Manorial Courts, i. 138–60.
[354 ] See the account of the eyre of Edward II.’s day at the Tower of London which lasted for twenty-four weeks; Munimenta Gildhallae, vol. ii. pp. lxxxiv–c., 285–432.
[355 ] Records of Nottingham, i. 40. Only in 1255 did Nottingham acquire it. Northampton in 1257: Records of Northampton, i. 46. Cambridge in 1256: Cooper, Annals, i. 46.
[356 ] Maitland, Township and Borough, p. 71.
[357 ] Placit. Abbrev. 310 (London).
[358 ] R. H. i. 354.
[359 ] Munim. Gild. i. 64–65.
[360 ] P. Q. W. 456.
[361 ] P. Q. W. 472.
[362 ] P. Q. W. 472. Munim. Gild. ii. 149–51.
[363 ] Records of Nottingham, i. 124, 186.
[364 ] Records of Nottingham, i. 70, 100.
[365 ] Lyon, Dover, ii. 274.
[366 ] Maitland, Possession for Year and Day, Law Quarterly Review, v. 253. This privilege was granted to Bury by the abbot; the person protected must have “legally acquired” the tenement; Registrum Sacristae, Camb. Univ. Libr. Ff. ii. 33. f. 64 b. See also Customs of Winchester, Archaeol. Journal, ix. 74; apparently when a citizen of Winchester wishes to make a conveyance of land he presents the charter to the aldermen; thereupon “the ban” is cried; then after three days the charter is sealed with the city’s seal; then after quiet possession for year and day the purchaser is safe. See also as to the custom of Northampton, a note by Mr. Green in L. Q. R. xiii. 116, and Records of Northampton, i. 459 ff.
[367 ] Records of Northampton, i. 214.
[368 ] As to the London “gavelet” see Muniment. Gildh. i. 62; see also the Winchester custom, Archaeol. Journal, ix. 76, and the Reading custom, Cunningham, Growth of English Industry, ed. 3, i. 618, and the Northampton custom, Records of Northampton, i. 218.
[369 ] See above, p. 453.
[370 ] Records of Nottingham, i. 1.
[371 ] Leg. Will. Conq. iii. c. 13 (Schmid, p. 356.)
[372 ] On this subject see Stubbs, Hoveden, vol. ii. p. xxxviii. It is true that we read in Glanvill and a few charters of the privilege as existing in certain boroughs before we hear of it as existing on the royal demesne lands; but in general the peculiarities of the ancient demesne are regarded as very ancient; they are supposed to represent the conquest settlement. In 1313 the would-be law or charter of the Conqueror was pleaded by persons who were living in Norwich: Placit. Abbrev. p. 316. In 1308 Simon of Paris was imprisoned as a villein; he brought an action and the plea that he was a citizen and alderman of London was not received: Y. B. 1 Edw. II. f. 4. At Norwich no one could become a citizen unless he was already a freeman: Norwich Custumal, cap. 36. This was true of London also: Munim. Gildh. i. 33. See Gross, Gild Merchant, i. 30.
[373 ] Maitland, Township and Borough, p. 213.
[374 ] D. B. i. 1.
[375 ] Firma Burgi, 18–20; Gross, Gild Merchant, i. 6.
[376 ] The transaction is sometimes called a feoffment; e.g. R. H. i. 61: King John enfeoffed the burgesses of Derby.
[377 ] As to the escheat of lauds in London, see above, pp. 679–80.
[378 ] R. H. ii. 356 ff.
[379 ] R. H. ii. 392.
[380 ] The doctrine which gives the soil of high-ways to the owners of the adjoining lands is not, we are persuaded, of very ancient origin; but this matter cannot be discussed here.
[381 ] R. H. i. 124–26.
[382 ] See Beckettv.Corporation of Leeds, L. R. 7 Ch. 421.
[383 ] See the account of Lincoln, R. H. i. 397–98. Ibid. i. 203, Canterbury.
[384 ] Munimenta Gildhallae, ii. 95, 274.
[385 ] As to all this matter see Maitland, Township and Borough, 185 ff.
[386 ] Gross, Gild Merchant, ii. 122.
[387 ] Ibid. ii. 192.
[388 ] Maitland, Township and Borough, 161.
[389 ] It is in this quarter that Bracton, f. 228 b, already sees some specific peculiarity of the cities and boroughs, “Item [servitus poterit esse] personalis tantum . . . item localis et non certis personis, sicut alicuius universitatis burgensium et civium.” The context shows that he is thinking of pasture rights. In the case of a borough you have a right of pasture that is not “real,” nor “personal,” but “local.” It is not annexed to a house, nor granted to specific persons, but is exercised by all members of an universitas.
[390 ] Small fees taken from those who turned out beasts might go toward the provision of a town bull.
[391 ] Stat. 15 Ric. II. c. 5.
[392 ] See above, p. 353.
[393 ] In our first edition too little notice was taken of the right which the burgensic community (ut universitas) may have in the “waste” or “common” land of the vill. See Green, Town Life, ii. 237. An attempt has been made to repair the default elsewhere: Maitland, Township and Borough.
[394 ] Maitland, Township and Borough, pp. 77–79. See also Records of Northampton, i. 96.
[395 ] At a later time many of the rents were reduced on the score of the poverty of the towns, and, though we must not believe all the plaintive tales that the burgesses tell about the “destruction” of their bailiffs, it seems fairly plain that the rents were heavy. See e.g. the story of Bedford, where the rent was reduced from £46 to £20; Munic. Com. Rep. 1835, iv. 2104; also Maitland, Township and Borough, 77; Hist. ms Com. xi. 3, p. 4, Southampton.
[396 ] The Records of Leicester are especially valuable at this point.
[397 ] Maitland, Township and Borough, 205 ff.; for Lynn, Hist. ms Com. xi. 3, p. 213 ff.
[398 ] See Gierke, D. G. R. ii. 754.
[399 ] See the section on Movable Goods in our second volume. The quasi-corporateness of our modern clubs etc. is rendered possible by a law of trusts which is not medieval.
[400 ] Schmid, Gesetze, p. 434. See Round, Geoffrey de Mandeville, p. 347.
[401 ] Stubbs, Const. Hist. i. 674.
[402 ] See above, p. 517.
[403 ] Hudson, Archaeological Journal, vol. xlvi. p. 293.
[404 ] See the extracts from the Mickletorn rolls in Records of Nottingham, vol. i.
[405 ] Norwich was divided into four leets. See Leet Jurisdiction in Norwich (Selden Soc.).
[406 ] See Nottingham Records, e.g. vol. i. p. 315, and compare Hudson’s Introduction to Leet Jurisdiction in Norwich.
[407 ] Manchester Court Leet Records; Leader, Records of Sheffield, p. xl.
[408 ] Green, Town Life, ii. 341 (Nottingham); Dormer Harris, Life in an Old English Town (Coventry).
[409 ] Gross, Gild Merchant, ii. 115.
[410 ] Ipswich Domesday, p. 167.
[411 ] For London, see Stubbs, Const. Hist. iii. § 809.
[412 ] Perhaps we may have to distinguish cases in which an old body of dooms-men or lawmen develops into a council from others in which a council is newly and deliberately instituted. In Germany the relation of the Stadtrat to an older Schöffenkolleg has been much discussed. See Keutgen, Ursprung der deutschen Stadtverfas-sung, 218 ff.
[413 ] Munic. Corp. Rep. 1835, vol. ii. p. 899 (Winchester); p. 760 (Maidstone, where the general assembly bears the name of Burghmote); vol. iv. p. 2188 (Cambridge); p. 2306 (Ipswich).
[414 ] We must carefully distinguish between (a) the development of a council within the burgensic body, and (b) the differentiation of a definite, and it may be small, burgensic body from the mass of inhabitants. Of the latter change we shall speak below. Though both processes may result in “oligarchy,” they are very different. For the town councils of the fifteenth century, see Green, Town Life, ii. 268 ff.
[415 ] Munim. Gildh. i. pp. xxx. 319.
[416 ] Ibid. ii. 86.
[417 ] Munim. Gild. ii. 64.
[418 ] Ibid. ii. 385–407.
[419 ] Ibid. ii. 405.
[420 ] Riley, Chronicles of Old London, p. 171.
[421 ] Munim. Gildh. ii. 386. The fishmongers of the Fish Wharf say that they can get no redress in the city courts for their adversaries “sount mestres et menours de la dite cité.”
[422 ] See Select Pleas of the Crown, pl. 137, for an early instance. In 1221 the men of Worcester confess to having “provided” that no one shall sell victuals before the hour of prime. At Norwich there might be no buying or selling until the bell had rung for the mass of our Lady: Norwich Custumal, c. 37. The Ipswich Domesday contains a good many rules which are said to be ordained by the commonalty, though as a whole it was regarded as a statement of ancient customs. It was to contain (p. 18) “the laws and usages of the town beforetime used so near as the same could be set forth (a plus pres que hom les peot par bon avisement estimer).”
[423 ] R. H. i. 108: the citizens of Scarborough have taken murage for two years beyond the time for which it was granted to them. In 1325 a request for murage preferred by the same burgesses is refused by the king; Rot. Parl. i. 423.
[424 ] R. H. i. 403 ff. especially 411. There is a great deal about this matter in the Liber de Antiquis Legibus. See also the complaint from Northampton, R. H. ii. 2.
[425 ] However in 1237 the Londoners had already been engaged in making a conduit to bring the Tyburn water to the city; Munimenta Gildhallae, vol. ii. p. 66.
[426 ] See the passages descriptive of scot and lot in Gross, Gild Merchant, i. 53–59.
[427 ] Munim. Gildh. vol. ii. p. 273.
[428 ] Gross, Gild Merchant, ii. 115–23.
[429 ] Rot. Cart. 56.
[430 ] Gross, Gild Merchant, i. 22; Hudson, Constitution of Norwich, Archaeol. Journ. vol. xlvi. p. 324. See also Mr. Stevenson’s remark in Records of Nottingham, i. 188. The Ipswich Domesday seems to show that in that town the gild had nothing to do with governmental affairs.
[431 ] Rot. Cart. 57.
[432 ] See the complaint against the community of Lynn; R. H. i. 461; also the complaint against the men of Bedford; P. Q. W. 18.
[433 ] See in Gross, Gild Merchant, vol. ii. under Andover, Guildford, Leicester, Totnes; also Records of Leicester (ed. Bateson) passim, e.g. p. 180.
[434 ] Riley, Chronicles, pp. 11, 15, 18, 22.
[435 ] Munim. Gildh. i. 251 ff.; see especially pp. 280–98.
[436 ] R. H. i. 309, 315, 322.
[437 ] P. Q. W. 18. See the assertion of the Abbot of Bury, Gross, Gild Merchant, ii. 34.
[438 ] See Gross, Gild Merchant, i. 93.
[439 ] See above, p. 529.
[440 ] Must we say, for example, that the University of Cambridge (which is a corporation by prescription) is feigned by the law to be a person, because the law first feigns that by some charter granted before the time of Richard I. some king said in effect that there was to be this fiction? That this story would contradict some known facts in the history of the University seems the least of its demerits.
[441 ] Stubbs, Const. Hist. i. 454.
[442 ] Even the Italian lawyers, whose doctrines at a later time affect our English law, are inclined to admit that there are certain kinds of corporations which are permitted by the general law, and which therefore can and may be formed without any special licence from the ruler. The universitas requires at his hands approbation, rather than creation, and this approbation may be considered as given in advance and by general law to corporations formed for certain laudable objects. See Gierke, D. G. R. iii. 206, 288, 368, 436. Many legists admitted that the corporate character can be acquired by prescription. Ibid. 369.
[443 ] Ipswich Domesday, p. 129.
[444 ] For the parallel process in Germany, see Gierke, D. G. R. ii. 692. King John had licensed the sworn commune in many French towns; see Giry, Établissements de Rouen, passim.
[445 ] It seems highly improbable that the oath to maintain the liberties of the town was developed out of the oath of allegiance.
[446 ] See the early instances from Ipswich in Gross, Gild Merchant, ii. 123 ff. See also Ipswich Domesday, p. 153; Norwich Customal, c. 36. For a complaint of the sale of citizenship in London, see R. H. i. 405.
[447 ] Sometimes a charter bestows privileges on the son of a burgess in his father’s lifetime; see for Newcastle, Acts of Parl. of Scotland, i. 33, 34; Records of Chesterfield, 33. Compare Gierke, D. G. R. ii. 694; and Records of Leicester, p. 219.
[448 ] They were Schutzgenossen, but not Vollgenossen. So in the German towns there will be “passive burghers,” Bürger ohne Bürgerrecht. See Gierke, D. G. R. ii. 299, 702. The position of the Scholars in the universitas of Masters and Scholars is similar.
[449 ] Registr. Malmesbur. ii. 34.
[450 ] See above, p. 272.
[451 ] Rot. Cart. 206.
[452 ] Y. B. 49 Edw. III. f. 6 (Hil. pl. 10); Gross, Gild Merchant, ii. 177 ff.
[453 ] Note Book, pl. 16, 145.
[454 ] Note Book, 294, 314, 489, 577, 589, 952, 1429. The Norwich Custumal c. 13 provides that when cognizance is claimed for the civic court the costs of the proceeding shall be paid by the defendant, but, if he cannot pay, then the chamberlain of the city must pay. The claim of cognizance is treated as a matter which is of great importance to all the citizens.
[455 ] An early example, from 1225, will be found in Nottingham Records, i. 18– 20: the burgesses of Retford and their successors are to hold of the burgesses of Nottingham and their successors. See Gross, Gild Merchant, i. 95. The new phrase makes its way but slowly into royal charters; the chancery was conservative. However, for an early example of “heirs and successors” in a royal document see John’s charter for Waterford: Chartae, Privilegia et Immunitates, Irish Record Commission, p. 13.
[456 ] The phrase which tells us how a corporation may “hold land in succession” is a misdescription of what really happens. Littleton and Coke make some good remarks about the use of the words “and their successors” in Y. B. 39 Hen. VI. f. 13 (Mich. pl. 17).
[457 ] Apparently in Germany the style which purports to grant liberties “to the citizens, their heirs and successors” yielded at what Englishmen must call a very early date to the style which treats “the city” as the recipient of the chartered rights. See Gierke, D. G. R. ii. 627 ff.
[458 ] Thus, in spite of Mrs. Green’s able arguments (Town Life, ii. 231), we are inclined to think that in early documents the same thought can be and is expressed by (1) Nos maior et burgenses, (2) Nos maior et communitas villae, (3) Nos maior et burgenses et tota communitas villae. The last of these phrases aims at showing that the mayor and burgesses are not to be taken ut singuli, but are, as we should say, “acting in their corporate capacity.”
[459 ] Riley, Chronicles, p. 84: the Londoners prayed that only the guilty might be punished.
[460 ] P. Q. W. 160.
[461 ] Placit. Abbrev. 199.
[462 ] Placit. Abbrev. 273.
[463 ] Stat. 49 & 50 Vic. c. 38. The claim for compensation is now made to “the police authority” and paid out of the police rate.
[464 ] The talk about “fictitious” personality did not prevent the legists nor, with some exceptions, the canonists from holding that an universitas can commit a crime and be punished for it. On the contrary, they went great lengths in the punishment of corporations; some of them were prepared to say that if a civitas commits a capital crime, such as treason, aratro decapitetur. See Gierke, D. G. R. iii. 234, 342, 402, 491, 738. In modern America the old doctrines which would deprive a corporation of corporate existence if it abused its power have borne new fruit, and joint-stock companies have learned the meaning of quo waranto.
[465 ] Firma Burgi, c. 3. See above, p. 661.
[466 ] Firma Burgi, p. 157.
[467 ] See above, p. 689.
[468 ] Stat. West. ii. c. 18, which introduces the writ of elegit.
[469 ] In the fifteenth century the notion of pure corporate liability was being grasped; see above, p. 520. For the growth of Italian doctrine, see Gierke, D. G. R. iii. 214, 379. A subsidiary liability of the singuli for the debt of the universitas was maintained by many writers.
[470 ] Note Book, pl. 16: the burgesses of Scarborough complain of the bailiffs of York; the complaint is answered by the mayor, reeve and bailiffs; pl. 145: the burgesses of Beverley complain of the bailiffs of Lincoln; the complaint is answered by the mayor and bailiffs. Placit. Abbrev. p. 148: the whole county of Huntingdonshire sues the burgesses of Huntingdon. See Firma Burgi, ch. 7. For cases in which the homines of places that are not boroughs appear, see above, p. 666. In 1275 the little township of Graveley “by its attorney” brings an action in the court of the Fair of St. Ives; Select Pleas in Manorial Courts, p. 150.
[471 ] Placit. Abbrev. 65 (temp. Joh.).
[472 ] Firma Burgi, p. 96.
[473 ] Firma Burgi, p. 97 (temp. Edw. II.).
[474 ] Y. B. 19 Hen. VI. f. 80 (Trin. pl. 11).
[475 ] Bracton, f. 228 b.
[476 ] Placit. Abbrev. 273 (temp. Edw. I.): “et factum maioris in hiis que tangunt communitatem est factum ipsius communitatis.”
[477 ] R. H. ii. 5.
[478 ] Select Pleas in Manorial Courts, pp. 134–35; but the remarks there made about the gild merchant are withdrawn. This is the point of a clause common in borough charters to the effect that a burgess shall not be distrained for a debt for which he is neither principal debtor nor pledge. See in particular Records of Nottingham, i. 40. In 1275 (Stat. West. I. c. 23) this was made a general statutory rule so far as Englishmen were concerned. Not until 1353 was the benefit of the new rule extended to alien merchants. See Stat. 27 Edw. III. st. 2, c. 17; Fleta, p. 136; Coke, Second Institute, 204.
[479 ] Madox, Firma Burgi, c. 8: “Anciently a corporate community might be answerable for the trespass or debt of particular persons members thereof; and particular members for the trespass or debt of the community.” Sohm, Die deutsche Genossenschaft, p. 19: “Die Genossenschaft haftet für die Schulden der Genossen, und der Genosse haftet für die Schulden der Genossenschaft. Beide Sätze gehen durch das ganze Mittelalter.”
[480 ] Gross, Gild Merchant, ii. 119, 121.
[481 ] An impression of the common seal used at Nottingham in 1225 may be seen in the frontispiece of Nottingham Records, vol. i.
[482 ] See above, p. 563.
[483 ] Merewether and Stephens, History of Boroughs, p. 443, mention fifteen places which had seals, but “which have never been incorporated.” But most, if not all, of them had at one time or another a claim to be called boroughs, and many of them were told to send members to Parliament in Edward I.’s reign. As early as 1296 the parishioners of St. Mary Magdalen at Oxford had a common seal. See Blakiston, Durham College Rolls, Oxford Hist. Soc. Collectanea, iii. pp. vi, 26.
[484 ] See above, pp. 663–64.
[485 ] For the development of practice and theory touching the power of majorities, see Gierke, D. G. R. ii. 478; iii. 220, 322, 392, 470.
[486 ] See above, p. 687.
[487 ] Take for instance the transaction chronicled in Reg. Malmesb. ii. 150–55. The abbot and convent quit-claim “to the burgesses who are of the gild merchant of Malmesbury their heirs and assigns” all right of pasture in certain land. On the other hand, A. B, alderman of the gild, C. D and E. F, stewards of the gild, seventeen other named persons, “and the whole intrinsic community of the said vill and of the gild merchant,” declare that “they” have quit-claimed to the abbey part of “their” heath called Portmanneshethe, and that none of the said community nor any of their successors or heirs will claim any right therein, and thereto they set their common seal.
[488 ] Records of Nottingham, i. 19.
[489 ] See above, pp. 523, 688.
[490 ] We are not hinting at any formal or thorough reception of the Italian doctrine, but certain of its phrases became part of the common inheritance of educated mankind. Every one knew that a corporation is persona ficta, or even nomen iuris, that it cannot sin, will not be damned, and so forth.
[491 ] Bracton, f. 171 b.