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• The Materials For English Legal History 1
• Possession For Year and Day 1
• The Introduction of English Law Into Ireland 1
• The Surnames of English Villages 1
• Northumbrian Tenures 1
• The History of the Register of Original Writs 1
• Remainders After Conditional Fees 1
• The “praerogativa Regis 1 ”
• A Conveyancer In the Thirteenth Century 1
• A New Point On Villein Tenure 1
• Frankalmoign In the Twelfth and Thirteenth Centuries 1
• Review of “the Gild Merchant 1 ”
• Henry Ii and the Criminous Clerks 1
• Tenures In Roussillon and Namur 1
• Glanvill Revised 1
• The Peace of God and the Land-peace 1
• History From the Charter Roll 1
• Taltarum's Case 1
• The Survival of Archaic Communities 1
• I.: The Malmesbury Case.
• II.: The Aston Case.
• The History of a Cambridgeshire Manor 1
• The Origin of Uses 1
• Outlines of English Legal History, 560—1600 1
• Old English Law.
• English Aw Under Norman and Angevin.
• The Growth of Jurisprudence. 1154–1273.
• Legal Reform Under Edward I.
• English Law , 1307–1600.

NORTHUMBRIAN TENURES1

In the thirteenth century there might be found in Northumbria—by which name I intend to include our five northernmost counties—certain tenures of land bearing very ancient names; there were still thegns holding in thegnage and drengs holding in drengage. These tenures, though common enough in the north, seem to have given the lawyers at Westminster a great deal of trouble by refusing to fit neatly into that scheme of holdings—frankalmoign, knight's service, serjeanty, socage, villeinage—which was becoming the classical, legal, scheme. Were they military tenures or were they not? They had features akin to those of serjeanty, other features akin to those of socage; nor were there wanting yet other features which according to some generally accepted rules would have been deemed to be marks of villeinage. I propose to collect here a little of what may be learnt about them.

And in the first place let us remark that in Northumbria the duty of military service occasionally appears under a very antique name; it is still “the king's utware.” When a man is making a feoffment, it is of course a very common thing that besides reserving some service to be done to himself, he should also stipulate that the feoffee should discharge the service which the land owes to any overlords that there may be, and in particular the service, usually military service, that it owes to the king. Such a stipulation is, we may say, the medieval equivalent for the clause common in modern leases which throws on the tenant the burden of rates and taxes. So the feoffor stipulates for rent, or it may be for prayers, pro omni servicio salvo regali servicio, or salvo forinseco servicio; for, as Bracton explains, the service which was due from the tenement to the king while it was in the feoffor's hands is “forinsec service” as between the feoffor and the feoffee; it, so to speak, stands outside and is foreign to the bargain that they are making1 . On the other hand, the feoffor may undertake that he himself will see to the discharge of this forinsec service. Now in Northumbrian charters, instead of reading about “royal service” or “forinsec service,” we frequently read of the king's “utware”:—thus one gives land liberam et quietam ab auxilio et ab omni alia consuetudine excepta uthware quae ad dominum Regem pertinet2 —libere et quiete nominatim a servicio Regis quod dicitur utware3 —et a servicio Regis quod dicitur Wtware4 . Sometimes as between feoffor and feoffee it is the one of them, sometimes it is the other of them, who is to be answerable for the “utware.” On meeting with such clauses our thoughts will at once go back to the well-known fragments of ancient English law, which teach us the rights of the thegn who had five hides to the king's utware, and of the ceorl who was so rich that he had five hides to the king's utware1 . That this term had once referred to military duty there seems no doubt, and I think that it must have the same meaning in the charters of the twelfth and thirteenth centuries. It is a northern equivalent for regale servicium or forinsecum servicium, and though these terms were wide enough to cover other services besides military service, though they would for example cover the duty of doing suit to the communal courts, still the pleadings of the thirteenth century constantly put before us scutage as the typical royal and forinsec service, the incidence of which feoffors and feoffees have to settle by their agreements. Even in the fourteenth century the drengage tenants of the bishop of Durham were still nominally liable to do “outward,” though whether they well knew what this meant may perhaps be doubted2 .

Another term frequently meets us which demands some explanation since it has become a progenitor of myths, namely, “cornage.” Every one knows Littleton's tale about the tenants by cornage in the marches of Scotland, who are bound to wind their horns when they hear that the Scots will enter the realm3 . Obviously it is an idle tale; one glance at the Boldon Book will teach us that. We cannot suppose that vast masses of men held by this horn-blowing tenure; but they paid cornage. It will be shown hereafter that near two centuries before Littleton's day, the origin of the payment had become obscure, and that the Northumbrians had already invented another fable about it, quite as marvellous as that which Littleton repeated. A passage in the one extant Pipe Roll of Henry I's day will direct our eyes to a more hopeful quarter. The see of Durham is vacant and the custodian of the temporalities accounts to the king for 110l. 5s. 5d.de cornagio animalium episcopatus1 . A charter of Henry I is pleaded in John's day by which the king gives land which belonged to certain of his drengs to Hildred of Carlisle, “rendering to me yearly the gablum animalium as my other free men both French and English who hold of me in chief in Cumberland render it2 .” Often in northern charters we read of neutegeld et horngeld. In 1200, Gilbert fitz Roger fitz Reinfred held land in Westmoreland and Kendal by paying 14l. 6s. 3d. per annum of neutegeld. He obtained the king's charter commuting his service into that of one knight3 . In 1238 a Cumbrian tenant holds by cornage quod Anglice dicitur horngeld4 . Cornage, horngeld, neutgeld, beasts’ gafol, must in all probability have originally been a payment of so much per horn, or per head for the beasts which the tenant kept and turned out on the common pasture. But we only know it as a fixed sum, a sum which does not vary from year to year; very commonly a township as a whole is liable to pay a lump sum for cornage. Name and thing were known in Normandy also. Delisle gives an instance from 1451: Jean du Merle says that in his land of Briouse he has a right called cornage, that is to say, so much for every beast1 . A much earlier instance may be found in a charter of 1099 by which Richer de Laigle grants the monks of St Evroul freedom from cornage, passage, and toll2 . The interest of Littleton's fable does not lie within the fable itself, for that belongs to a very common class of antiquarian legends3 , but in the necessity for it. We only know cornage as a fixed and substantial money rent; as such it appears even in surveys of the fourteenth century; but according to Littleton tenure by cornage is not reckoned as a mode of socage, it is accounted sometimes a tenure by grand serjeanty, sometimes a tenure by knight's service4 . How can this be?

We turn to the fate of the northern thegns and drengs. Thegns, of course, are to be found in all parts of Domesday Book; but we have special information as to certain thegns who held of the king in the land between the Ribble and the Mersey. Here the thegn is generally described as holding a manerium—one of them holds six maneria—though the hidage of their manors is small. They pay a rent of 2 ores per carucate; “by custom” they, “like the villani,” make houses for the king, and fisheries, and inclosures, and buckstalls (stabilituras) in the woods, and on one day in August they send their reapers to reap the king's crops; the heir pays forty shillings for his father's land; if one of them wishes to quit the king's land he must pay forty shillings, and may then go where he pleases; the criminal tariff applicable to them is in some respects unusually mild; they attend the shiremoot and the hundredmoot. They seem bound to obey the orders of the serjeant of the hundred when he bids them go upon the king's service—this probably implies military duty—but if they make default they only pay a fine of four shillings. In close contact with these thegns we find a group of “drengs”—a name rare in Domesday Book—they hold a manor apiece, but of their service we have no particulars1 . The tenure of these Lancashire thegns, if it is continued, will certainly provide a pretty puzzle for lawyers.

Next in the Boldon Book we may read much of the bishop of Durham's drengs. The typical dreng is described as feeding a dog and a horse, going to the bishop's great chase with two greyhounds and five cords, doing suit of court and carrying messages (sequitur placita et vadit in legationibus); sometimes he does boon works with all his men2 .

We soon come upon entries which, when read together, are perplexing. In Henry I's time the guardian of the temporalities of Durham, after accounting for the cornage of beasts and the donum of the knights, accounts for what is due de tainis et dreinnis et smalemannis inter Tinam et Teodam1 . Are not the smalemanni of Durham the compeers of the minuti homines of Yorkshire and other counties? In Henry II's reign an account is rendered of “the aid of the boroughs and vills and drengs and thegns” of Northumberland2 . Some years earlier the knights and thegns of the same county had joined in a donum3 . Under Richard I the thegns and drengs of Northumberland paid tallage^21. Under Henry III the thegns of Lancashire paid fifty marks to be quit of the tallage that had been imposed upon them4 . A mandate of 1205 speaks of the serjeanties, thegnages, and drengages of the honour of Lancaster that have been alienated5 . In John's reign thegns and drengs of Westmoreland and Northumberland paid fines to save themselves from military service in Normandy6 ; and this was early in the reign, while the law of the land was still respected. But a tenant who is bound to attend the king's banner even in Normandy, and who is subjected to tallage when he is at home, is not he a living contradiction in terms? But what shall we say of a tenant who must pay a fine when his daughter marries, and whose heir will be in ward to the lord? Is not this an amazing confusion of tenures, of the noblest with the basest, of chivalry with servility?

Opinion fluctuates. In 1224 a general summons for military service was issued for the siege of Bedford, then occupied by Fawkes of Breauté. The sheriff of Cumberland was forbidden to distrain Richard of Levinton, since he did not hold of the king in chief by military service, but held by cornage only1 . A few years later we hear of a tenant who holds by cornage, and is bound to follow the king against the Scots, leading the van when the army is advancing, bringing up the rear during its returns2 . This looks like an ancient trait, for at the time of the Conquest there were men on the Welsh march who were bound to a similar service, to occupy the post of honour when the army marched into Wales or out of Wales3 . Among the documents which have been published under the title Testa de Neville are some important entries. One which seems to belong to Edward I's time mentions a number of tenants by cornage in Cumberland, and then adds, “All these tenants by cornage shall go at the king's command in the van of the army in the march to Scotland, and in the rear on its return.” Some of them are considerable persons holding entire vills4 . In Northumberland, we are told, the barony of Hephale was held by thegnage until King John commuted the thegnage into a knight's fee5 . John's charter we have; the holder of the barony had formerly paid the king fifty shillings nomine thenagii6 . We read of men who hold whole vills in thegnage, and who yet pay merchet and heriot. Comparing two documents, we find that in the thirteenth century the distinction between thegnage and drengage is but little understood. One John of Halton holds three vills, Halton, Claverworth, and Whittington, in drengage (another account says thegnage), of the king; he pays forty shillings a year, pays merchet and aids, and does all customs belonging to thegnage1 . Often the Northumbrian tenant in drengage or thegnage pays cornage, and must do truncage, i.e. must carry timber to Bamborough castle—a relic, is it not, of that arcis constructio which was a member of the trinoda necessitas2 ? Sometimes it is distinctly said that his services have not been changed since the days of William the Bastard. In Lancashire, also, there are many men who hold in thegnage; the duties mentioned are the payment of money rents and the finding of one judge (judicem), seemingly for the hundred and county courts. In passing, we notice a Lancashire entry about a serjeanty, which consists in blowing a horn before the king when he enters or leaves the county3 :—are men already beginning to dabble in etymology and to seek an origin for cornage?

By comparing one of the entries with the Hundred Roll of 1275, we get the result that, in the opinion of some, drengage is free socage. A certain Henry of Millisfen holds Millisfen in chief of the king. One account of his tenure is that he holds in drengage, paying thirty shillings rent, doing truncage to Bamborough, paying tallage, cornage, merchet of sixteen shillings, heriot of sixteen shillings, relief of sixteen shillings, and forfeit of sixteen shillings; he ploughs once a year with six ploughs, reaps for three days with three men, owes suit of mill and pannage1 . Elsewhere his services are described in much the same way, though merchet and heriot are not mentioned, and he is said to hold in free socage2 .

All this is extremely puzzling at Westminster. There the question takes this shape: Shall the lord have wardship and marriage of tenants in drengage and tenants in thegnage? Wardship and marriage have become extremely important things; service in the army by reason of tenure is fast becoming an archaism, for the time for distraint of knighthood and commissions of array is at hand. In 1238–9, it was decided that the wardship of the land of Odard of Wigginton belonged to the king, for Odard held of the king by serjeanty, to wit, that of going to Scotland in the van of the king's army and returning in the rear; “besides, he paid cornage3 .” In or about 1275, the barons of the Exchequer certified that a man, lately dead, held of the king in chief the vill of Little Rihull in Northumberland by a rent of twenty shillings, and a payment of fourteen pence for cornage, and that they could not find that the king had ever had wardship of any of this man's ancestors; but this proved little, for no minority had occurred for some while past. They add, “Of all your tenants in chief by cornage in Cumberland and Westmoreland wardship and marriage are due to you; but we have not yet discovered whether they are due to you of those who hold of you by cornage in Northumberland1 .” Then in 1278 a case, which evidently was regarded as very difficult, came before the justices of the bench, and afterwards before the king's council. Robert de Fenwick held two manors in Northumberland of Otnel de l’Isle in drengagio. Agreement was made between them that the service of drengage should be remitted, and that Fenwick should hold of Otnel, rendering an annual rent of one hundred shillings, and doing whatever forinsec service was due from the said manors. The question was whether this tenure gave wardship in chivalry, to which the answer was that it did not. All depended on the nature of the “forinsec service” (if any) that Fenwick had to do. The jurors were asked what this forinsec service was. They replied, cornage and fine of court (finis curiae). Questioned as to what they meant by this, they told a wonderful story. Cornage and court fine, said they, are payments made to the king by the suitors of the county, hundred, and baronial courts for the remission of certain royal rights. A sum of fifty pounds a year is paid in respect of cornage (seemingly by some group of suitors, for the payment is a heavy one) to be quit of the following custom, namely, that if a man be impleaded and do not “defend” (i.e. deny) the plaint word by word he shall be at once convicted. For “fine of court” fifty pounds was paid to the king twice in seven years for freedom from the following custom, namely, that the king's bailiff should come and sit in the baron's court and hear the pleas, and that so soon as the suitors should do anything against the law and custom of the realm, the king's bailiff should amerce them. The case was heard by eight justices and some other members of the council. They held that drengage is certum servitium et non servitium militare, also that cornage and fine of court are certa servitia et non servitium militare1 . That the origin of cornage had been forgotten seems pretty plain. About the winding of horns there is no word2 .

The later history of these once common tenures might be an interesting theme. Probably many of them fell into the evergrowing mass of free socage; a few, by aid of the fable of the hornblowers, may have been still regarded as serjeanties, or as military tenures, at a time (and this occurred long before Littleton's day) when the military tenures were no longer military, except in name and in legal tradition. Again, it may be strongly suspected that many of the tenures in drengage went to swell the mass of “customary free holds” which appear in the north of England. In Bishop Hatfield's Survey, the tenants in dringagio are kept apart from the libere tenentes on the one hand, and from the bondi on the other. Indeed it might, I believe, be shown that the successors of these thegns and drengs went on doing their military, but not knightly, service in the Tudor age long after a summons of the feudal array had become a mere name. It was thus that in 1577 the council of the North spoke of certain tenants of the dean and chapter of Durham: “The said tenants be bounde by the custome of the countreye, and the orders of the borders of Englande annenst Scotlande to serve her majesty, her heirs and successors at everie tyme, when they be commanded in warrelike manner upon the fronteres or elsewhere in Scotlande by the space of fyftene daies without waiges1 .” And the tenants, who were disputing with their lords whether they had a right to the renewal of their lifehold estates, insisted on this same military feature of their tenure, namely, “serveing the Quene's Majestie and her noble progenitors upon the borders of Skotland at the burneinge of the Beken, or upon comaundment from the Lord Warden with horse and man upon their oune charges, by the space of fiftene daies at every time accordinge to the laudable use and custome of tennant right their used2 .” It looks as if the king's utware had outlived knight's service; but these tenants failed in their endeavour to establish a laudable use and custom of tenant right, and seem ultimately to have sunk into the position of mere tenants for life without right of renewal.

However it is rather of early than of late times that I would here speak. In Northumbria we seem to see the new tenure by knight's service, that is by heavy cavalry service, superimposed upon other tenures which have been, and still are in a certain sort, military. In Northumbria there are barons and knights with baronies and knights’ fees; but there are also, thegns and drengs holding in thegnage and drengage, doing the king's utware, taking the post of honour and of danger when there is fighting to be done against the Scots. But as with the Lancashire thegns of Domesday Book, so with these thegns and drengs of a somewhat later day, military service is not the chief feature of their tenure—in a remote past it may have been no feature of their tenure, rather their duty as men than their duty as tenants—they pay substantial rents, they help the king or their other lord in his ploughing and his reaping, they must ride on his errands. They even make fine when they give their daughters in marriage; they, these holders of whole manors and of whole vills, of whose unfreedom there can be no talk, pay merchet. They puzzle the lawyers because they belong to an old world which has passed away. Perhaps Northumbria is hardly the part of England to which we should have looked for the most abundant relics of this old world; but surely it is only as such that we can explain the thegnage and drengage of the twelfth and thirteenth centuries.

[1]English Historical Review, Oct. 1890.

[1]Bracton, f. 36: “et ideo forinsecum dici potest quia sit [corr. fit] et capitur foris sive extra servitium quod sit [corr. fit] domino capitali.” Note that a tenant's dominus capitalis is his immediate lord.

[2]Rievaulx Cartulary (Surtees Soc.), p. 215.

[3]Newminster Cartulary (Surtees Soc.), p. 19.

[4]Newminster Cartulary, pp. 86, 87, 118, 119.

[1]Schmid, Gesetze, Anh. v. 3; Anh. VII. 2, § 9.

[2]Bp. Hatfield's Survey (Surtees Soc.), p. 9: et facit outeward in episcopatu quantum pertinet ad iiij. partes unius dringagii; p. 10: et faciunt oughtward quantum pertinet ad iiij. partes j. dringagii.

[3]Tenures, sec. 156.

[1]Pipe Roll, 31 Hen. I, p. 131.

[2]Plac. Abbrev. p. 67. The printed book has Tablum animalium.

[3]Rot. Cart. p. 50.

[4]Bracton's Note Book, pl. 1270.

[1]Études sur la condition de la classe agricole en Normandie, p. 65.

[2]Appendix to Prevost's edition of Ordericus Vitalis, vol. v. p. 195.

[3]See in Whitby Cartulary (Surtees Soc.), I. 129, Mr Atkinson's very interesting note about the duty of horngarth.

[4]Littleton, Tenures, sec. 156.

[1]Domesday, I. 269 b.

[2]Ibid. IV. e.g. pp. 574, 580, 581, 583.

[1]Pipe Roll, 31 Hen. I, p. 101.

[2]Madox, Exch. I. 130.

[3]Ibid. 698.

[4]Ibid. 417.

[5]Rot. Cl. I. 55.

[6]Madox, Exch. I. 659.

[1]Rot. Cl. I. 614.

[2]Bracton's Note Book, pl. 1270.

[3]Domesday, I. 179.

[4]Testa, pp. 379–381.

[5]Rot. Cart. p. 51.

[6]Testa, p. 393.

[1]Testa, pp. 389, 393.

[2]The Newminster Cartulary, p. 269, contains an interesting charter by Edgar, son of Earl Gospatric; he confirms to his sister a gift, made by his father, of land to be held in frankmarriage, exceptis tribus serviciis, videlicet, communis exercitus in com[itatu] et cornagio et commune opus castelli in com[itatu]. Here, we may say, is a modern version of the old clause about the trinoda necessitas. By a charter of King John the lands of the Abbey of Holmcoltram are freed from “castelwerks”; Monasticon, v. 506.

[3]Testa, p. 409.

[1]Testa, p. 389.

[2]Rot. Hund. II. 18.

[3]Bracton's Note Book, pl. 1270.

[1]Cal. Geneal. 501.

[1]Coram Rege Roll, Pasch. 6 Edw. I, No. 37, m. 14d., No. 38, m. 7; imperfectly reported in Plac. Abbrev. p. 194.

[2]In a charter of Gospatric, son of Orm, for Holmcoltram, as given in the Monasticon, v. 609, the grantor undertakes to do for the monks omne forense et terrenum servicium quodcunque ad dominum regem pertinet, scilicet de Noutegeld et Ondemot. Noutegeld is probably the same as cornage; what ondemot may be I cannot guess, though it must be a moot of some kind; is it simply the hundred-moot?

[1]Rolls of the Halmotes of the Prior and Convent of Durham (Surtees Soc.), p. xxxviii.

[2]Ibid. p. xliii.