Front Page Titles (by Subject) THE SURVIVAL OF ARCHAIC COMMUNITIES 1 - The Collected Papers of Frederic William Maitland, vol. 2
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THE SURVIVAL OF ARCHAIC COMMUNITIES 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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THE SURVIVAL OF ARCHAIC COMMUNITIES1
The Malmesbury Case.
That land was owned by communities before it was owned by individuals, is nowadays a fashionable doctrine. I am not going to dispute it, nor even to discuss it, for in my judgment no discussion of it that does not deal very thoroughly with the history of legal ideas is likely to do much good. I must confess, however, to thinking that if the terms “community” and “ownership” be precisely used,—if ownership, the creature of private law, be distinguished from a governmental dominion conferred by public law, and if ownership by a public community (universitas, persona ficta) be distinguished from co-ownership (condominium, joint tenancy or tenancy in common),—then this doctrine is as little proved and as little probable as would be an assertion that the first four rules of arithmetic are modern when compared with the differential calculus. But this by the way, for my present purpose is merely that of raising a gentle protest against what I think the abuse of a certain kind of argument concerning “village communities”—the argument from survivals. Some quaint group of facts having been discovered in times that are yet recent, some group of facts which seems to be out of harmony with its modern surroundings, we are—so I venture to think—too often asked to infer without sufficient investigation that these phenomena are and must be enormously ancient, primitive, archaic, pre-historic, “pre-Aryan.”
Of course I am not saying that there is no place in the history of law for inferences drawn from the present to the past. A historian who, when dealing with a particular age, let us say the eleventh century, refused to look at any documents that were not so old as that age, would not merely place himself under a self-denying ordinance of unnecessary rigour, he would often be casting away his most trustworthy materials. The student of Anglo-Saxon law, for example, who refused to look at Domesday Book, because it did not belong to “his period,” would be guilty of pedantry and worse. The surest fact that we know of Anglo-Saxon land law is that it issued in the state of things, more or less intelligently, more or less fairly, chronicled by Norman clerks as having existed on the day when King Edward was alive and dead. But obviously the method which would argue from what is in one century to what was in an earlier century, requires of him who employs it the most circumspect management. I need not expand this warning into a lengthy sermon; it has been given once for all in words that shall never be forgotten—“Praetorian here! Praetorian there! I mind the bigging o't.”
If these words should be always in the ears of every one who is hunting for “survivals,” they should, so it seems to me, be more especially remembered by those who, not content with the phenomena which they can find in the open country, are looking for exceedingly ancient and even pre-historic remains within the walls of our English boroughs. Here if anywhere the danger of mistaking the new for the old is an everbesetting danger.
To come to particulars:—When we see burgesses occupying land in severalty by a communal title—that is to say, occupying because they are burgesses and so long as they are burgesses—and when we see further that their occupation is subject to communal regulations, subject to the bye-laws made by the governing body of the corporation in the name of the corporation—we must not at once infer that this is a very ancient arrangement. In a very large number of instances the title by which a borough corporation holds its land—even land within or adjacent to the borough—is known to be a modern title; indeed it will I think be found that the borough “communitas” of the thirteenth century was but rarely a landowner; it generally owned valuable “franchises,” but not land. In some cases the boroughs of the later middle ages profited by the liberality of individual burgesses; in other cases they profited by the Protestant Reformation, they acquired lands which had belonged to monasteries and to religious or semi-religious gilds; in yet other cases they obtained from the king or some other lord the ownership of soil over which they had for a long time past been exercising rights of pasture.
Now when land was thus acquired, what was to be done with it? Let it at a rack rent, we moderns may say, carry the proceeds to the account of the borough fund, and then expend them on some object useful to the town at large, upon paving, lighting, water-supply, elementary education, or the like. But this is to impose upon our ancestors our own notions of right and wrong, and very modern notions they are. If we go back but a little way we find that the property of the corporation is regarded as being, not indeed the property of the corporators, but still property which the corporators may enjoy very much as they think best. Of course the corporators are neither joint tenants nor tenants in common of this property; they are to enjoy it because they are corporators, and “shares” in the corporation (if we may use that term) do not obey the common rules of private law applicable to cases of co-ownership, though often enough “birth” and “marriage” are titles to “freedom”:—still they are to enjoy it. There is no other purpose for which it exists. No doubt the great reform of 1835 was a sadly needed reform; but the historian of our towns will have to point out that the harm that was to be remedied had been done much rather by the oligarchic constitution of the corporations,—in many cases a constitution deliberately fashioned for the purpose of making them the instruments or the playthings of politicians,—than by the prevalence of the notion that the property of the corporation should be enjoyed by the corporators. That notion was a very natural one, and we cannot blame our forefathers for having entertained it. The property of the corporation was not (except in quite exceptional cases) “impressed with a trust.” No one had ever laid down the rule that the only possible “ideal will” of this persona ficta must be that of keeping a well-lit, well-paved, well-watched, healthy and cleanly town. And so if the borough had land the burgesses meant to enjoy it. If they let it they would divide the proceeds among them, perhaps in equal shares, perhaps bestowing preferential shares on their aldermen or chief burgesses. But they might well like to enjoy it in specie, to cut it up into allotments, to allow every burgess to hold an allotment so long as he was a burgess, paying no rent or a rent much lower than that which a stranger would have given:—a score of intricate variations on this theme might be devised. Especially if the corporation of a small borough acquired land hard by the houses of the corporators, some plan of allotting the land among the burgesses would very probably be adopted at some time or another. A burgess of such a borough would much rather have some little plot which during his lifetime he could call his own, than a dividend of a few shillings or a right to turn out beasts upon a waste.
If I am not mistaken, we can see this in our own day. At Bishop's Castle in Shropshire—so the commissioners of 1835 reported—the burgesses had a right of common on a pasture containing from ninety to one hundred acres, called the Moat Hill or Burgesses’ Hill. “It is a right of common without stint, but being merely adapted for a sheep walk, it is represented to be of inconsiderable value1 .” Before 1880 this pasture had been turned into arable land, cut up into small portions held in severalty by several burgesses, each of them holding under a lease from the corporation at a rent of 5s. per acre for a term of sixty years, renewable for ever on a fine of £51 . How had this come about? There had been some dispute between the corporation and some of the burgesses. Some of the burgesses had enclosed pieces of the land, and then the matter was settled on the terms just mentioned.
At West Looe the members of the corporation had turned out their cattle over a certain down. The corporation, having passed through every stage of degradation, finally became extinct. In 1828 the commoners, without any Act of Parliament, enclosed two-thirds of the common, cutting that part up into seventy-three little plots which they let at small rents to certain members of their body, mostly poor fishermen of the village. “Did all the inhabitants have these inclosures?” “Many of the inhabitants had these inclosures; they were let at a yearly rent.” “But how were they chosen?” .... “They settled it among themselves; they never disputed it.” “But some got back an equivalent [for their pasture right] by taking a piece which they rented, and others apparently got nothing?” “Quite so.” “How was that settled?” “I think that it was settled in this way, that after paying a certain amount of money for the expenses and other matters, the general income was handed over to the overseers for the poor-rate.” “The whole population had a certain benefit out of it?” “They all had a benefit from it.” Then in stepped the Duke of Cornwall with seignorial claims to this soil, but seemingly very willing to do what was fair by the men of Looe; and by means of a conveyance to trustees all was, we may hope, settled for the good of all1 .
Now the question that I would ask is whether it is not very possible and even probable that what we see the men of Bishop's Castle and West Looe doing in the full glare of the nineteenth century, has been done by the burgesses of other boroughs in times that we cannot call archaic or primitive or prehistoric, times which lie well within the limit of legal memory.
Let us observe some few of the divers modes in which our burgesses have used the lands belonging to the boroughs, placing ourselves at the date of the great municipal reform.
Very often of course “burgesses” or “freemen” as such claim rights of pasture over soil of which the corporation is the owner, or (to speak more nicely) the tenant in fee simple. Sometimes the right of pasture is regarded as an appurtenance to a tenement in the borough. Thus in Clitheroe2 the right to be a burgess was given by the tenure of certain burgage tenements. There were seventy-eight “free-borough houses,” ten “borough houses,” and fourteen “borough crofts.” “The free borough houses formerly conferred a right of common of pasture for one horse and one cow, on the moors or commons within the borough. These are now inclosed. Borough houses and borough crofts were not entitled to such horse-gate and cow-gate.”
Very often again all the “resident freemen” as such have pasture rights. Sometimes they have to pay small sums for it, sometimes not. Thus at Beverley1 “the burgesses residing within the town have the privilege of depasturing cattle, being their own property, on lands belonging to the corporation, containing about 4217 acres. They are allowed to depasture three cows in Westwood pasture; one horse in Hurn Pasture; three beasts in Figham Pasture, and six beasts in Swinemoor Pasture from the 14th of May to the 14th of February. This privilege, if enjoyed to its utmost extent, would be worth £25 a year. Few enjoy it to that extent. Indeed the land would not support the cattle if all who were entitled so used it. Persons depasturing are subject to the payment of a small sum on every head of cattle depastured. This sum varies from 5s. 6d. to 16s. 6d. a head.” At Doncaster2 “every resident freeman is entitled to turn two head of cattle upon a tract of land belonging to the corporation, containing 142 acres, called the Low Pastures, during the summer season. This privilege is worth, to each freeman, about £1 per annum. A resident freeman may let this privilege to another resident freeman. The freemen are also entitled to the aftermath in a meadow called Crimpsall Meadow, containing about sixty-five acres. This privilege is worth very little; the eatage is soon consumed, it being without stint; it does not last more than a week or ten days.” ... “The Neatherd looks after the cattle depasturing on the low pasture, being the freeman's pasture. He is allowed 13s. 4d. a year, a pair of boots every year, a house and two acres of land rent free, of the value of about £10, and two cattle gates on the low pasture worth about 10s. a year each.”
Then at York1 we find that the rights of the freemen vary from ward to ward. They “exercise a right of pasturage over several pieces of waste land in the neighbourhood of the city. Their rights in this respect vary according to the several wards in which they inhabit. The freemen inhabitants of ancient messuages in Bootham Ward are entitled to a right of pasturage for three head of cattle, either cows or horses, on a tract of land in the parishes of Clifton and Huntingdon, containing about 180 acres, subject to the payment of 10s. a year for every cow, and 12s. for every horse depastured;; the number of freemen who exercise this right is about seventy. The freemen occupiers of houses in Monk Ward are entitled to depasture two heads of cattle, either horses, cows, or other beasts, on a tract of about 131 acres, subject to annual payment of 10s. for each beast; about 100 freemen generally exercise this right, and the number of cattle depastured is generally about 150. Freemen occupiers of houses in Walmgate Ward are entitled to pasturage for one head of cattle only, i.e. one cow with a calf, one mare with a foal, or one gelding, on about seventy-five acres of land, subject to the payment of 20s. for each beast; about 100 freemen exercise this right. The freemen inhabitants in Micklegate Ward, and certain parts of Bootham Ward, Monk Ward, and Walmgate Ward are entitled to pasturage for one gelding, or one mare with a foal, and two cows, upon several tracts of land, containing together 437 acres, subject to an annual payment of 8s. for each horse, and 6s. for each cow; about 400 head of cattle are usually depastured on these lands. These annual payments for depasturing cattle are received by the pasture masters, and by them applied about the necessary expenses of guarding the cattle and keeping the lands in order.”
Elsewhere we may find that not all, but only some of the burgesses, are entitled to pasture. At Lancaster1 “the free burgesses are entitled to a right of common on Lancaster Moor; but in practice this common is used by almost every one who has property adjoining it. The eighty senior burgesses are entitled to an equal share in the net income, arising from some ground, called Lancaster Marsh, the property of the corporation. Lancaster Marsh was formerly a stinted pasture; and by an old custom, of the commencement of which there is no record in the corporation books, the senior eighty resident freemen were alone entitled to the herbage. The Marsh was inclosed in 1796, and the rents, still called Marsh-grasses, are now apportioned among the freemen, according to the old custom. This property is exclusively under the management of the Bailiff of the Commons: the leases are for seven years, at rack rent. The rents now produce about £4 to each of the eighty persons, and greatly exceed the value which the land possessed before the inclosure.”
With these cases in our minds, we turn to others in which burgesses as such occupy land in severalty. The constitution of the corporation of Berwick1 was democratic. There was no “select body”; but the whole corporation, consisting of the mayor, the four bailiffs and the other burgesses, assembled in guild managed the affairs of the corporation, made bye-laws and disposed of property in the same way as was generally done in other places by the common council. The number of burgesses was indefinite; men became entitled to be burgesses (1) by birth, (2) by servitude, and (3) by grant from the corporation. “There is a large tract of land lying near the town, which was granted to the corporation by charter 2 James I. The First Portion of this land consists of several farms, which are demised to tenants by the mayor, bailiffs and burgesses, the rent being reserved to the said mayor, bailiffs and burgesses, or their treasurer for the time being, and collected by him. The rent together with the proceeds of other property now forms a separate fund, out of which the salaries of the officers and other corporate expenses, are defrayed. These farms are called Treasurer's Farms. The Second Portion is subdivided into several parcels varying in quantities from an acre and a quarter to two acres and a half, and in value from £1. 13s. 9d. to £9 per annum. These are called meadows, and at an annual meeting of the burgesses, called a meadow-guild, are distributed as they become vacant by the death or nonresidence of the last occupiers (or in case of widows, by subsequent marriage of the last occupiers), among the senior resident burgesses, and widows of burgesses, who succeed to the rights of their husbands as to meadows and stints, though the charter has no provision in behalf of the widows; the most ancient resident burgess is entitled to choose the most valuable vacant meadow, and so on in succession down to the youngest, till the number of vacant meadows is exhausted. The number of these meadows is twenty-four. The burgesses may either occupy these meadows themselves, or let them to tenants, reserving rents to themselves. In practice they are generally let. The lands forming the Third Portion were, up to the year 1761, open fields, upon which each burgess was entitled to a certain right of pasture, but at that period they were inclosed, and have ever since been let, in guild, as farms to tenants for various terms of years, and are now demised by leases under the corporation seal, generally in farms of forty acres, or thereabouts. The rent of each farm is divided into a certain number of equal portions, generally eleven, but in a few instances twenty-two. At another annual meeting, called a Stint-guild, a portion is allotted upon a specific farm to each resident burgess or burgess's widow, or to as many of these as there are vacant portions. These portions are called stints, and like the meadows vary in value from £8 to £9 per annum. The number of these stints was increased about thirty years ago, by appropriating another portion of land to that purpose. The number of stints thus added is forty-four, making the total amount 561. The more ancient burgesses are in like manner entitled to a preference, as the more valuable stints become vacant, and the younger burgesses succeed to them, as vacancies occur by the death, removal, or promotion of their seniors. The portions of the rents called stints are paid annually by the treasurer of the corporation to the burgesses who are entitled to them. The burgesses in guild have, by their charter, a power of making byelaws for the good rule and government of the corporation, and for preserving, governing, disposing, letting and demising of their lands, &c. In the exercise of this right the burgesses assembled in guilds make byelaws to regulate the enjoyment of the meadows and stints, and have prescribed the conditions of husbandry under which meadows and stint lands may be broken up, and converted into tillage, and (in the case of meadows) the terms for which they may be let by the individual burgesses to whom they are allotted. They also decide upon the title of those who claim to enjoy meadows and stints, according to their bye-laws; and instances occur upon their records, of forfeitures both of meadows and stints, either absolute or for limited periods, inflicted by the burgesses in guild, for infraction of bye-laws, or other gross misconduct. But unless there be such forfeiture, or the party either become non-resident or relinquish his stint or meadow by choosing one of more value, he may remain in the enjoyment of the stint or meadow which has at the first been allotted to him, for the term of his life. Some burgesses are permitted to enjoy one stint only, others two stints, and others again one meadow and one stint.”
At Nottingham1 “the burgesses are entitled to a considerable right of pasture.... They are also entitled, if resident, to take in order of seniority what is called a burgess-part, that is, an allotment of land in the fields or meadows at a small ground rent payable to the corporation, or a yearly sum in lieu of the allotment, at the discretion of the corporation. These burgess-parts are 254 in number. They are unequal in value and form, in fact, a sort of ‘lottery.’...The rental of the proper estates of the corporation, free from any specific trust, and commonly called the Chamber Estate, for the year 1831–2 [amounted to more than £5000 and included a sum of £144. 18s. 6d., being the rents of burgess-parts]... The number of burgess-parts on the Chamber Estate amounts at present to 112.... They are either allotments of land in the fields or meadows, for which a small groundrent, charged without reference to the actual value of the burgess-part, is paid to the corporation; or a yearly sum in lieu of the allotment, at the discretion of the corporation. These allotments are not considered as freeholds; but the common hall exercise the right of resuming them if they think proper during the life of the burgess. Resumptions of the burgess-parts have been frequent in late years. Instances have formerly occurred in which the parts were resumed without any money payment in lieu being made to the burgess. At present, a compensation in money is always given in the shape of an annual payment, which is fixed at rather more than the burgess could have made out of the land. These resumptions have taken place when the corporation were enabled to make more of the land than the burgesses could do, and have proved beneficial to the corporation estate.”
Now that arrangements of this kind may really be pretty modern, we get various hints. I will speak more especially of the case of Stafford1 . The corporation are possessed of a piece of land called the Coton Field, containing about 192 acres. It appears that in ancient times the burgesses of Stafford claimed a right of common over three open fields, composing the manor of Coton, called Coton Field, Broad Field and Kingston-hill Field; but the claim was disputed by the owners of the Coton manor. In 1705 the differences between them and the corporation were arranged in the following manner. The corporation gave up all claim to the right of common over Broad Field and Kingston-hill Field, and William Fowler, the owner of the manor, in consideration thereof demised to trustees the Coton Field, for ninety-nine years, in trust, to pay him a yearly rent of £12, and then in trust for the mayor and burgesses, subject to the payment by the latter of £28 a year, for the support of the poor in the almshouse.... The Coton Field is divided into portions containing each an acre, each of which is allotted to a burgess. Small rents, varying from four to six shillings are received from the occupiers, each of whom also pays, on his first entrance, 5s. on a tillage acre, and 10s. on any other acre. The gift of these acres is vested in the mayor for the time being. They are by no means confined to the poorer order of burgesses. Each of the members of the common council [mayor, ten aldermen and ten capital burgesses] invariably receive an acre; formerly they each held two, but of late years they have given up the one.”
I can not but think that had the manner in which Coton Field was occupied in 1835 been brought to the notice of some of our “survivalists,” they would have pronounced it to be an interesting relic of archaic times. But the archaic times of which it tells are in truth the archaic times of Queen Anne or some king of that primeval dynasty, the illustrious house of Hanover. My reason for thinking that it would have been attributed to a much earlier age is to be found in what has been written concerning the borough of Malmesbury, more especially in what has been written about it by one to whom we all owe many thanks for his courageous and ingenious speculations, I mean Mr Gomme1 .
The facts are in brief these2 :—In Malmesbury, as in many other boroughs, the titles to freedom are birth and marriage; that is to say, a son or a son-in-law of a free burgess is entitled “to take out his freedom.” On so doing he becomes one of a class known as “the commoners.” Before 1832 this would have given him a right to turn out beasts on certain unenclosed land. But in that year by Act of Parliament this land was enclosed, and dealt with in a somewhat elaborate fashion. Fifty acres of it were given to trustees, who were to apply the income in maintaining roads, fences, and the like. The rest was cut up into 280 allotments, the average size of which is an acre and a quarter; but though they vary in size their value is approximately equal, since it was arranged that the size of the allotments should vary inversely with their proximity to the town, the smaller pieces being those nearest to the town. When one becomes a freeman of Malmesbury one becomes entitled to succeed in order of seniority to one of these 280 plots; until one gets a plot one receives 8s. a year out of the income of the fifty acres held by the trustees. Now all this arrangement, primitive though it may seem to us, is quite new, the result of an Act of Parliament coeval with the Reform Act; before that Act such of the freemen of Malmesbury as were but “commoners” had, as their name implies, rights of common and no more.
But there is an older arrangement and there are other lands to be considered. A freeman may aspire to be a “landholder.” The landholders are a body of fifty-five (formerly there were but forty-eight) persons, each of whom holds a several plot; these plots vary in size; together they make up about forty acres; they are divided into six “hundreds”; the number of plots in the hundred varies. The freeman who wishes for a plot puts down his name at the bottom of a list; a list of applicants is kept for each hundred; he can put his name on one of these lists or on several of them; if at the same meeting of the corporation several persons wish to enter their names on the same list, then they cast lots for priority. When a vacancy occurs in one of the hundreds owing to the death of a “landholder,” the applicant whose name stands highest on the list of that hundred gets the vacant plot, and if his name is on the list of a second hundred it is struck off that second list, for he is not to have two plots. So much as to the “landholders.” Above them in rank stand the twenty-four “assistant burgesses,” each of whom has an acre in addition to his “landholder's part” and his “commoner's part.” Vacancies in this body of twenty-four assistant burgesses are filled from among the “landholders” by co-optation1 ; “in practice they are self-elected, though it is said that the aldermen and capital burgesses have a right to interfere.” Then above the twenty-four stand the twelve “capital burgesses,” who are elected by co-optation. On becoming a capital burgess one gives up one's “assistant burgess's part” and one's “landholder's part,” but one retains the “commoner's part” and becomes entitled to a “burgess's part.” These “burgess's parts” vary in size from five to sixteen acres. There are but twelve of these, and as there are thirteen capital burgesses, including the aldermen, the junior capital burgess for the time being has to do without a part, and instead thereof receives a small sum of money; but when another vacancy occurs he takes the vacant part. This he keeps, be it large or small, though other vacancies subsequently occur, but it is said that in the past there might be a general shifting of parts among the capital burgesses when one of the plots fell vacant. Then every year the capital burgesses elect an alderman (generally the aldermanship goes in rotation among them in order of seniority), and the alderman for the time being, in addition to his “burgess's part,” enjoys a plot of five acres, known as “the alderman's kitchen”; out of the profits of it he is expected to provide a feast. The corporation also holds thirty-nine small leasehold properties, which are said to be vested in the capital burgesses and alderman; they are let at quit rents, at about £1 each, upon premiums which are paid to the alderman and capital burgesses. The various allotments lie together without fences or ditches between them; each man grows what he pleases, “wheat and potatoes and beans, and all sorts of things.” “Very like a parish allotment?” “Yes, something of everything.”
Very curious all this is, but I do not think that we have any warrant for supposing that any part of this elaborate system of allotment is of very great antiquity. When Domesday Book was made the burgesses of Malmesbury, as was often the case, were divided between the king and other lords, but most of them held of the king1 . Then John granted the borough in fee farm to the Abbot of Malmesbury2 , and the abbey thenceforth drew a considerable revenue of burgage rents3 . In the thirteenth century the burgesses of Malmesbury of the Merchant Gild held the heath known as “Portmaneshethe,” and granted part of it to the abbot4 , but that they held any arable land by any communal title we do not know. With magnificent impudence they forged a charter whereby King Æthelstan, in consideration of their services against the Danes, granted them five hides of heath near his vill of Norton, by the counsel of Master Wolsinus his Chancellor and Odo his Treasurer1 . To make free with Æthelstan's name was becoming fashionable in the boroughs: had not the men of Beverley, of Axbridge, of Barnstaple, charters from the same illustrious monarch2 ? Of this charter the men of Malmesbury procured a confirmation from Richard II, and another from Henry IV3 . It is amazing that the king's chancery should have been deceived by this extravagantly clumsy imposture. Other royal charters, so far as I can learn, they had none until they obtained an elaborate instrument from Charles I and another from William III4 . I am not disputing their title to the heath. Very probably they did but forge in support of ancient usage and prescriptive right. But as to the system of arable allotments we may well doubt whether any part of it belongs to the middle ages. In Charles I's day there was, and “from time immemorial” had been, a class of burgesses known as the “landholders.” In William III's day the aldermen and capital burgesses were, and “for time immemorial” had been, holding certain tenements apart from the lands held by the burgesses, and to confirm their title a second corporation, to be called “The Alderman and Capital Burgesses,” was erected by the side of the old corporation, known as “The Alderman and Burgesses,” and was provided with a seal of its own. But we know what “from time immemorial” means in such a context. Why should not what happened in 1832 have happened more than once in earlier centuries? The burgesses have been using land as pasture ground, and somehow or another, by ancient or modern title, by purchase or prescription, the corporation which they form has become—or at all events they think that it has become—the owner of the ground. They enclose part of it and invent a scheme (even in 1832 such schemes could be invented) for providing alderman, capital burgesses, assistant burgesses, ordinary burgesses, with cultivable allotments. My own belief is that were the pressure of the Municipal Corporations Act removed, and had our borough corporations nowadays as few members as they had sixty years ago, such schemes would be very fashionable at the present moment, and were I a burgess, and were the choice given to me of receiving my “dividend” in the form of money, or in the form of pasture rights, or in the form of a small “severalty,” I for my part should choose a several close. And then if there were not enough land to provide for all the burgesses without reducing each plot to an unprofitably small size, recourse would be had to some plan of rotation, or perhaps to the “archaic” drawing of lots.
Then to my eyes the scheme that came down into modern times at Malmesbury does not look very ancient; it speaks to us of the last of the middle ages or of the Tudor time, for it speaks to us of an elaborately differentiated corporation, a constitution in which class rises above class, a tripartite or quadripartite corporation. Now I think that those who have made a study of our boroughs will bear me out if I say that this will hardly be as old as the thirteenth century. In that age many boroughs have as their governing body (under the mayor or the bailiffs) a body of twelve “law-men,” twelve “capital port-men,” twelve “chief burgesses,” or the like. Such a body as this may in some cases be very ancient, though in others we can actually see its birth; but the appearance of a second and subordinate class of ruling burgesses is characteristic of a later time. Some boroughs, even great and opulent boroughs, never get beyond the first stage in the evolution of a governing body; to the end they have but a mayor and twelve aldermen. Most boroughs go further than this; below the twelve they develop a twenty-four (other numbers are sometimes found, but this duodecimal system is very common); below the twelve or twenty-four aldermen will appear the twenty-four or forty-eight common councillors, or perhaps there will be twelve capital burgesses and twenty-four assistant burgesses, or again these bodies will be known simply as “The Twelve” and “The Twenty-Four,” or “The Twenty-Four” and “The Forty-Eight1 .” Occasionally, though this is much rarer, there are three classes: thus at Derby, nine aldermen, fourteen brethren, fourteen capital burgesses; at Lancaster seven aldermen, twelve capital burgesses, twelve common councillors; at York twelve aldermen, a body called the Twenty-Four, and seventy-two common councilmen; at Bury (to take a smaller town) six assistants, twelve capital burgesses, twenty-four burgesses of the common council. Now on the whole we may safely say that the more complex the ruling body, the later is its constitution—later that is according to the normal order of events. Judged by this standard the constitution of Malmesbury, with its alderman, capital burgesses, assistant burgesses, landowners and commoners, is a modern constitution, and those who regard it as of great antiquity should admit that the burden of the proof lies upon them. There is nothing in the charters of Richard II and Henry IV, nothing in that wondrous document the forged charter of Æthelstan, to prove or even to suggest that it existed in the fourteenth century. When asked to call it or any part or trait of it prehistoric, I feel as if I were being told that Henry VII's chapel at Westminster was the work of “neo-lithic man1 .”
I am not contending that we must read this Malmesbury inscription as A[iken] D[rum's] L[ang] L[adle], but certainly there seems to me to be an almost infinite number of modes in which it may be deciphered without our being compelled to refer it to the age of Agricola. There are many reasons why the Monkbarns who is digging in an English borough should be careful to have an Edie by his side, or, still better, be his own Edie. In the first place, as I have been trying to explain, arrangements which may look to us very quaint—quaint because the number of landowning boroughs will not be very large—can in quite modern times be the natural outcome of the fact that the borough owns land while the burgesses for the time being are entitled to get profit or enjoyment out of that land. In the second place, our English boroughs have been exercising for a long time past not merely a considerable power of regulating by express bye-laws the use of their proprietary rights, but also (and here lies the snare for the archaeologist) a large and indefinite power of declaring their own customs, of making the old look new and the new look old, of ascribing to time immemorial—even to the reign of King Æthelstan or, for the matter of that, King Arthur—arrangements which have existed for but eighty years or less. In the third place, whatever may be the case in a court of law, in a court of history the borough that would trace back its ownership of land even into the thirteenth century, should, so I think, be called upon to prove its assertion. This I say because in very many instances we know that a borough's title to its land is not so old as that century, and because in the voluminous records which bear on the manner in which land was owned in that century, we can, if I am not much mistaken, read but very little of land being owned by communitates. Lastly, when we are speaking of the boroughs a leap from any century later than the thirteenth to any much earlier age is the most hazardous of all leaps, for the time which is thus skipped is, or at all events seems to me, the time when Englishmen are gradually and painfully, under the teaching of canonists and civilians, not without many a slip and blunder, learning to frame and use a new idea, that of the universitas, the persona ficta, learning (even Bracton could hardly do this) to distinguish between res civitatis and res omnium civium—a grand intellectual achievement comparable to the discovery of the differential calculus. I am not saying that until that achievement had been performed an ownership of land that might in some sort be called a communal ownership was impossible (far from it), but I do say that inferences drawn from an age when the borough “community” is a definite person, quite distinct from the mass of men who are the burgesses for the time being, to an age when this distinction was hardly, if at all, perceived, are perilous inferences1 .
The Aston Case.
The hunter after relics of very ancient times—I speak of those spiritual things that we call “institutions, “not of material potsherds—is, for reasons that I have tried to give, much less likely to be deceived by the pseudo-archaic when he is at work in the open country than when he is within the walls of a borough. Life has been slower in the village than it has been in the town; changes have been fewer; the piles of débris are neither so numerous nor so variegated; there will be fewer faults in the stratification: nevertheless, even when we are out in the fields it behoves us to be cautious. There is, or there should be, a broad gulf between the “Here is a funny old custom” of the antiquarian amateur and the “Here is a survival from the Norman, the Anglo-Saxon, the Celtic, the pre-Celtic, the pre-Aryan, the pre-historic age” of the scientific explorer. Nowadays many things are old, too old to be easily explicable, which none the less are not even mediaeval. Six centuries divide us from the Hundred Rolls, eight from Domesday Book, near thirteen from the laws of Æthelbert, and even the tiller of the soil sometimes—but I am wasting ink in these generalities.
The famous case of the Aston “village community” deserves a careful discussion, for the interpretation that we put upon it is likely to tinge our conception of large tracts of English history, economic and legal.
The English township of the fourteenth and later centuries, if it be not one of those privileged and befranchised townships that are called boroughs, is no corporation; the law does not personify it; it cannot hold land; it cannot sue or be sued. But further, it is not a “jurisdictional community.” By this I mean that it has no court in which its members, or its “best and most lawful” members, can declare and enforce the common law or the village custom. Nay, the vill is not even a jurisdictional district, though it is a police district: there is no court of any sort or kind of or for the vill as such. Lastly (so far as I can see) the township is not a self-governing community; it has no governing body; it has no assembly. Often, it is true, the vill is also a parish, and during the last of the middle ages, as the permanent endowments of the parish churches, tithes and lands are absorbed by the religious houses, church rates become necessary, and with church rates assemblies of parishioners collected in the vestry of the church and presided over by the parson or church-wardens; but mediaeval law does not confuse the parish with the township; for it the parish is a purely ecclesiastical institution.
Would it were so nowadays! Why are we to be cursed with “parish councils”? I hasten to say that I am not about to meddle with any burning question of contemporary politics—I know my place—this is but an outbreak of pedantry. And yet perhaps there is something a little better than pedantry in it. Is our legal geography so rational, so simple, that we can afford to throw good words away? Is it necessary, now that the legal relief of the poor is no longer a semi-ecclesiastical matter, that we should ever be distinguishing (with such help as interpretation clauses may give) between the ecclesiastical parish and the civil parish and condemning ourselves to live in two parishes at once. “Civil parish” is about as good a term as “lay bishop” or “civil archdeacon” or “temporal diocese” would be. Might we not profitably learn a lesson from America; might we not restore the township? This however is ultra-crepidation.
To return to our middle ages—it is well known that much that we have denied to the township, we must concede to the manor. It has a court, and that court is not merely a court of justice, it is also a bye-law-making and a precept-issuing assembly; the manor, we may say, has certain powers of self-government. True that when we examine it in the thirteenth century, the jurisdictional, legislative and governmental powers which this court has over one class of its “justiciables”—the freeholders, if any freeholders there be, are exceedingly feeble (upon very slight provocation the freeholder will be off to the king's court, where his individualistic complaints will find favourable audience), while over the other class of its justiciables—the holders in villainage—its powers, which are mighty enough, are regarded by the law as the mere will of the lord; but then it is possible for us to represent this state of things as being pretty modern, as the outcome in part of recent seignorial usurpations and in part of the yet more recent activity of a distinctively royal or national justice. The lord, it may be said, has mastered or even dispossessed the village assembly, but in so doing has been compelled to let slip from all effective control those lucky members of the community who can persuade the king's justices that their tenure is freehold.
I will not here argue either for or against this theory; rather I will point out one of the limits within which it is confined. Where manor and vill are coincident, it will give us what is in some sort a village assembly. But manor and vill are by no means always coincident. I am not referring to the cases, common in the north of England, in which the manor comprised several vills. These might be accounted for by the supposition that the lord for his convenience had succeeded in fusing several village assemblies into one manorial court. But it might very well happen that the manor would comprise only a part of a village, that the manor would be made up of parts of different villages, that some part of the village would be in no manor at all.
I am not speaking of rarities. If when we take all England as a whole we can treat the coincidence of manor and vill as normal, this we cannot do if we confine our view to certain large districts of England. One of these districts is Cambridgeshire. Of many a Cambridgeshire village we may safely say that never—at all events never since some time remoter than that of the Norman Conquest—has the whole village coincided with a single manor or formed part of a single manor, that never has it had a single lord, save that lord of all lords, the king. The various freeholders who had land in it, including those who had villain tenants and kept courts for them, often traced their titles up to the king by very different routes, and it was a common thing that part of the village territory should belong to one great honour and part to another.
But more; there can I think be very little doubt that in the Cambridgeshire village the arable lands of the various manors and even of the various honours were often intermixed; that the manor like the virgate lay scattered about in the common fields—an acre here and an acre there. So far as I can see on maps made before the modern inclosures, the village, though it may contain three or four manors, will usually have but one expanse of arable land, an expanse unbroken by ditch or hedge, an expanse that is known as “the field” of that village.
Now these cases seem to me to be cases of critical importance. They seem to put us to our choice between two paths, and, whether we pursue the one or the other we shall come to a conclusion which must govern our whole notion of of English village history. Either, despite the provoking silence of our documents, we must find, or if we cannot find, then we must postulate, some organization of the township that is not manorial, some assembly of the township that cannot be explained by feudal principles; or else we must admit that the system of common field husbandry may be carried on from century to century—perhaps for six or seven centuries—though there is no village tribunal, no village assembly, capable of regulating and controlling it.
It is in this context that the famous case of the village of Aston in Oxfordshire should teach us something. What we know of it is gathered partly from a statement, which in 1657 was submitted to two eminent lawyers, Sir Orlando Bridgman and. Mr Jeffrey Palmer, partly from a custumal compiled in 15831 . I will briefly set forth the principal facts, as I understand them, premising a few words as to the whereabouts of Aston.
In the county of Oxford lies the hundred of Bampton, which contains some 42,070 acres. It comprises seventeen parishes, one of which is Bampton. The whole parish of Bampton with its hamlets contains 8,750 acres, and is composed of the following parts:—
Aston with Cote, then, is a hamlet of Bampton; in 1831 it contained 157 inhabited houses, while the whole parish contained 523.
Now in 1657 there were in Aston and Cote 16 hides of arable land, and four yard-lands or virgates were reckoned to the hide, so that there were 64 yard-lands. The size of an arable yard-land varied from 24 to 28 ¾ acres2 . The affairs of the owners of these lands were regulated by a body of sixteen persons known as “the sixteens.” “The sixteens” was not, I think, an elected body; each hide had a representative in it, and the practice seems to have been that the various persons interested in each particular hide should take it in turns to represent that hide for one year1 . On the eve of Lady Day all “the inhabitants” of Aston and Cote met at Aston Cross “to understand who should serve for the sixteens for that year coming, and to choose other officers for the same year.” These elected officers seem at this time to have been three grass-stewards and two “water-haywards.” Before electing them the tenants divided themselves into two parties: the “hundred tenants” chose one grass-steward and one water-hayward; the “lord tenants” chose two grass-stewards and one water-hayward. The meaning of these terms “hundred tenants” and “lord tenants” will become plainer hereafter; meanwhile let us see what “the sixteens” had to do. Each yard-land consisted, as we have seen, of some 27 acres of arable land; these acres were intermixed in the common fields in strips of half an acre or less; but besides this, each yard-land comprised or had annexed to it a right of common for twelve rother-beasts or six horses and also for forty sheep. Then also each yard-land carried with it a right to a lot-mead. The meadow was laid out in sixty-four portions, and in every year each yard-land had one of these portions assigned to it. This assignment was effected by a lottery. Each yard-land had a wooden mark belonging to it, bearing some device; the marks were placed in a hat and the owner of the first mark that came out of the hat became entitled to the piece of meadow that was known as “the first set.” Each owner then went to the meadow and cut in the grass of the portion allotted to him the device proper to his yard-land; he possessed that portion in severalty from the 1st of March to the 3rd of May, and was entitled to the crop of hay. Then also there were certain hams or home-closes of meadow, namely the Bull-ham, the Hayward's ham, the Worden-ham, the Wonter's-ham, the Grass-Stewards-ham, the Water-haywards-ham, the Homage-ham, the Smith's-ham, the Penny-ham, and the Brander's-ham, &c., which were “disposed of at the discretion of the sixteens; some to the officers whose names they bear, some to the public use of the town, as for the making of gates, bridges, &c., and some were sold [that is to say, the crops off them were sold] to buy ale for the merry-meeting of the inhabitants.” Then also lying in the common fields were “several leyes of greensward...two years mowed and the other fed” that were disposed of at the discretion of the sixteens.
Thus the function of the sixteens was to supervise the allotment of the lot-meads, and to dispose according to their discretion of the hams and the leyes of greensward. We further find attributed to them a power of making such orders as they should “conceive beneficial for the inhabitants of Aston and Cote.” They were to hold ordinary meetings three times a year, in Rogation week, in Whitsun week and upon Lammas Eve; but special meetings might be summoned for the redress of grievances, and the sixteens, or a majority of them, might inflict amercements for breaches of their orders; they themselves also might be amerced “by the stewards and the body of the town,” though the sum exacted was not to exceed fourpence. From the evidence before us it is impossible to say exactly what limits were conceived to exist to this power of making ordinances and decreeing punishments, but the sixteens do not seem to have aspired to act as a court of law; nor can we tell what authority they claimed over such of the “inhabitants” of Aston and Cote as had no proprietary interest in any of the sixty-four yard-lands. The custumal of 1593 was signed “by most of the substantial inhabitants of Aston and Cote”; the number of signatures was but eighteen. On the whole we have little reason for calling this community a governing community; rather it is a proprietary community.
The amount of communalism that is involved in it should neither be understated nor yet overstated. Each holder of a yard-land holds his arable land by a separate title, a title that is in no sense communal. Annexed to his arable land he has a right of pasture; this also he holds by a title that is in no sense communal. Again his title to a lot-mead is communal only in this sense, that the whereabouts for the time being of his “moveable freehold” or “moveable copyhold” is determined by a process of casting lots in which he takes part with his fellows. On the other hand “the sixteens” deal at their discretion with the “hams” and the “leyes of greensward.” To judge by the names of the hams, there had at one time been more village officers than there were in the seventeenth century; for instance, there had been a village smith and a village wonter or mole-catcher, and to each of these a ham had been allotted. Even in the seventeenth century there were grass-stewards, who were bound to see that the mounds and fences were in good repair, and who also had to provide four bulls to run on the common pasture, in return for which provision they received eighteenpence for every cow that fed on the common. But whether we suppose the sixteens to have had all along a free power to decide who should occupy and take the profit of these hams, or whether we suppose that each ham had been devoted to the endowment of some communal office, we have in either case a state of things that cannot easily be expressed in the forms of our common law. Who owned these hams?
From the device of placing the ownership of the soil in some obvious lord of a manor we are precluded. This is the most remarkable feature of this remarkable case—the community at Aston was not a manorial community. Of the sixty-four yard-lands, forty belonged to the manor of Aston-Boges, or more correctly Aston-Pugeys, which was then held by a Mr Horde. Of these forty yard-lands, twelve were in the hands of copyholders, while the others had been let by the lord to tenants for terms of years from which we may gather that they had formerly been in his own hand. Of the remaining twenty-four yard-lands, nine were parcel of the manor of Shifford—they had formerly been copyhold, but of late had been enfranchised; four more yard-lands belonged to the manor of Bampton-Deanery, while “about twelve yard-lands” were “ancient freehold” held by some yet other title or set of titles not fully explained by the documents that are before us. Those members of the community who were tenants of the manor of Aston-Pugeys seem to have been known as “the lords tenants,” while the others were known as “the hundred tenants,” probably because though they owed no suit to the manor of Aston-Pugeys, they did owe suit to the court of the hundred of Bampton.
If now we turn to the Hundred Rolls1 and look for this community, though we shall fail in being able to identify with accuracy all of our sixty-four yard-lands and shall read nothing about the sixteens, we shall see the manor of Aston-Pugeys, or Bampton-Pugeys, which is in the hands of Robert Pugeys, Mr Horde's predecessor in title2 , the manor of Shifford which is held by the Abbot of Eynsham, and the manor of Bampton-Deanery, or Bampton-Exoniae, which belongs to the Dean and Chapter of Exeter. On the whole it seems that the occupants of the Aston fields are for the more part customary tenants of these three manors; those of the Pugeys manor are called “servi,” those of the Exeter manor “villani”; but probably there are among them a few freeholders, some holding of the Abbot of Eynsham, while a very few may hold either immediately of the king, or of William of Valence, who has a manor of Bampton, to which the Pugeys manor is subordinate3 .
Now it has been stated by a learned and careful writer, who seems to have had access to documents not open to the public, that the manors of AstonPugeys, Bampton-Deanery, and Shifford were all of them held of this superior manor of Bampton1 . Were this so, then the curiosity of the phenomenon that is before us would be much diminished. We might then explain the case in the following way—Once upon a time there was a great manor of Bampton which comprised (as great manors sometimes did) various sets of common fields, and therefore various groups of cultivators; one of these groups was the Aston group; the owner of this great manor created various sub-manors by interposing various mesne lords between himself and the cultivators. Let us say, for example, that the king has the manor of Bampton, he gives part of it to Imbert de Pugeys, part to Eynsham Abbey, part to the Dean of Exeter; each of the sub-manors thus created comprises part of the Aston group; the members of that group were then divided between various lords—no one court had a direct control over them all; some organization was necessary for the regulation of the course of agriculture, the definition of pasture rights and the like, and either by some definite treaty the lords created that organization of “the sixteens” which we see in the seventeenth century, or else they suffered it to grow up as a convenient machinery for preventing the disputes which would arise among their tenants, disputes which being inter-manorial could not have been determined by any manorial court. As to the few freeholding occupants of the Aston lands, if (as seems possible) they did not hold of any of these submanors, their presence might none the less be easily accounted for: if at any time after the passing of the statute Quia Emptores one of the lords enfranchised a yard-land, that yard-land would no longer be held of him, but would fall out of his manor.
One part of this hypothetical story is true. William the Conqueror had as part of the ancient demesne of the crown a great manor at Bampton (Bentone) worth the very large sum of £82 a year1 . Out of this Henry III carved the Pugeys manor, by enfeoffing Imbert de Pugeys with thirty librates of land2 . Then the same king granted the superior manor and the hundred of Bampton to William of Valence3 . But in the face of such documents as have been accessible to me, it is not proved that either the Abbot of Eynsham's manor of Shifford or the Dean of Exeter's manor of Bampton-Deanery were held of the royal manor of Bampton. It is true that both the Abbot's men and the Dean's men had to attend the court of William of Valence; but then that court was a hundred court. The Abbot of Eynsham claimed the “villa” of Shifford under a charter of Æthelred the Unready, which confirmed yet earlier grants: but whether that charter comprised all or any of the Aston lands it would now be hard to say4 . The case of the Exeter manor is somewhat clearer—the church of Exeter seems to have claimed it under a gift of Æthelstan1 , and we have a charter whereby William the Conqueror confirming a gift of Edwy gave to the church of Exeter a stretch of land at Bampton, Aston and Chimney2 . If then we look for a time (I am far from saying we ought to do this) when the sixty-four yard-lands of Aston were all at the disposal of a single man, it is probable that we must go back far behind the Norman Conquest.
Still of course the question arises—Why should we not go back to an extremely remote age? And here it is that the argument from “survivals” shows its weakness. The case before us may be explained as readily by the hypothesis of an originally servile community which attained an unusual degree of freedom by being partitioned among various lords, as by the hypothesis of an originally free village upon which the manorial system has been clumsily superimposed. Then on the other hand we have no warrant for saying that our sixty-four arable yard-lands had any existence as arable lands even at the date of Domesday Book. We read of Bampton and of Shifford, but it seems very doubtful whether this Aston is mentioned1 . Is it not possible that the village or hamlet of Aston is of comparatively modern origin, that some time after the Conquest the lords of several neighbouring manors combined to “assart” a tract of waste land, partitioned it among their manors in such wise that each should have land of every quality—good, bad, indifferent—and for the settlement of their intermanorial affairs instituted an intermanorial congress of tenants or suffered such congress to institute itself? Such suppositions are easily made. Further research may at any moment disprove many of them; but others will grow in their places. The antiquary has always to be learning that an infinite number of meanings may be set on the mystical letters “A.D.L.L.”
But the lessons that a prudent antiquary may learn from the village of Aston are not unimportant. In the first place we see that a cultivating group, and one which displays some unusually communal traits, may exist without a court capable of deciding disputes as to the titles by which the various members hold their shares. Some little power of imposing pecuniary penalties for breaches of customary rules may be requisite, will at all events be useful; but the power of imposing penalties, which is freely exercised in modern clubs of all sorts and kinds, must be carefully distinguished from a power of issuing execution for penalties, seizing the offender's goods or the like, and it is not said that the Aston “sixteens” aspired to this latter, this coercive, power. At any rate, over questions concerning title they had no jurisdiction. This being so, what at first sight looks to modern eyes like a very remarkable communalism, becomes less communal when it is examined. Each member holds his arable land, his pasture rights, even his lot-mead by a several title. He does not hold them because he is a member of this “field-community”; on the contrary, he is a member of this community because he holds them, because he has come to them by inheritance, by purchase, by devise, or by the grant of a manorial lord. Thus we conclude that it is possible for a village community to exist and to go on existing for some centuries, and to exhibit all those peculiar features that we see at Aston, though it is not a jurisdictional community, or at all events has but very few and very slight jurisdictional powers. All this is so, though the acres lie intermixed in the open fields, though this acre is copyhold of one manor, the next acre copyhold of another manor, the next ancient freehold which, so far as any one knows, belongs to no manor at all.
But more, so I think, can be learnt. When we speak of a “survival” we seem to imply that the phenomenon in question, though now it be rare and curious, has in the past been common; what is abnormal in one age was normal in another. In every particular case however the inference, which is thus shrouded from view by a fashionable term, may be required to make itself explicit and may be put upon its defence. In any particular case our curio—be it potsherd, be it institution—may turn out to have always been a curio, may turn out to have been from first to last as unique a thing as any thing can be in this imitative world. Now to say that so far as one's own reading goes, the Aston case stands alone, would—this I fully admit—be no very grave argument. Besides retorts of a more personal kind, it is open to the answer—and in this I can see some plausibility—that while from the thirteenth century onwards the proceedings of courts of law, even of very petty courts, have been diligently recorded and preserved in large numbers, the proceedings of such a body as the Aston “sixteens” would not be put into writing, or no great heed would be taken of the books in which they were noted. Reasons again might be given—I am not sure that they would be very good reasons—why these non-manorial village assemblies have left hardly a mark in such cartularies, monastic annals and Year Books, as have yet been published. But these attempts to shift the burden of the proof backwards and forwards, and to draw inferences from silence, are not likely to compass any very satisfactory conclusion. It seems to me, however, that of the rarity of any institution or arrangement which can in any degree affect men's legal rights, we have one good test. If it be not rare, the law will have an obvious place for it, and will know exactly what to make of it. Of course some arrangement, some mode of conducting business, some class of transactions may, as it were, stand outside the sphere of law for a considerable time. Its legal consequences remain uncertain, possibly there will even be doubts as to whether it be lawful or unlawful. So far from denying this, I think that just in this context we ought to insist upon it. Litigious as Englishmen are and have been for many centuries past, a great deal will always be going on even in England about which the law, if I may so speak, will have not yet made up its mind; but I think that in such cases if we have not to deal with rarities we have to deal with novelties. I think, for example, that if at the end of the middle ages our law, our exceedingly conservative common law, has no obvious place for a certain institution, we must, until the contrary be proved, incline to the conclusion that this institution cannot have been both very ancient and very common.
And now returning to Aston, we will ask once more the question—it is far from being a frivolous question—Who owned these “hams” and “leyes of green-sward” which “the sixteens” claimed to dispose of “at their discretion”? or, to be more technical—Who was seised of them? In whom were the freehold and the fee? Mr Horde, when he sought Sir Orlando's advice, observed that the sixteens, being no corporation, could have no legal estate in the said hams. Bridgman, one is happy to say it, found an answer—“If the custom be a good custom, as I take it to be, the same custom will give the officers an interest as incident to their offices and [such an interest] may belong to an office, as in the case of the Warden of the Fleet.” The great lawyer has recourse to the notion of official property; the owners of these hams are the sixteens; not the community itself, but the officers of the community; each year the land passes from one set of sixteen cotenants to another set of sixteen co-tenants, as the tenancy of the Fleet gaol and (so it seems) certain satellitic shops passes from warden to warden. Now this may have been a very happy use of the only category that was at Bridgman's command, the only category by means of which the common law of his day could have done substantial justice to the men of Aston. Still we cannot but feel that its application to the facts in question is an artifice; an artifice worthy of a great lawyer, it well may be, an artifice that the courts may approve, and which will bring them to a much desired result; but still an artifice. Our “village community” is saved, because the relation in which its “archaic moot” stands to its land, is so like the governorship of a gaol.
That Sir Orlando had to fetch his analogy from a remote field seems plain enough; but to this we must add—so I think—that he had to find it in an unfertile field, and in one that had but recently been brought under cultivation. Of course in his day it was undoubted law that “land may be appurtenant to an office”; but if we look for the cases which illustrated this proposition, we shall, I believe, find very few. There is just one standing illustration of it which does duty in report after report and text-book after text-book—there is land appurtenant to the Wardenship of the Fleet. Now I think that we have grave cause for doubting whether this classical instance was a very old one; but I am more concerned to insist upon its extreme rarity than upon its novelty. Our mediaeval law had little, if any, room for “official property.” Within the sphere of ecclesiastical arrangements, it had by slow degrees developed the notion of the “corporation sole.” At first the saint owns the land that has been given to him; in later and more rationalistic times his ownership is transferred to the personified “church”; and thence in yet later days it is transferred either to a “corporation aggregate” or to a somewhat analogous creature of the law, which here in England bears the odd title “corporation sole,” while elsewhere it appears as the personified dignitas or sedes. But outside the ecclesiastical sphere, there has been no need, little room, for these feats of “juristic construction.” Even the personification of “the crown” has been a slow process, and has never gone very far; he who would distinguish between “the crown” and the king, unless he be very cautious, is likely even in Coke's day to fall into “a damned and damnable opinion,” is likely in earlier times to lose his head as a traitor. We got on well enough without official property, without “corporations sole” of a temporal kind. The non-hereditary royal officer, whose office involved an occupation of or a control over land, was seldom, if ever, conceived as being the owner, or to speak more accurately, the freeholder, of that land; he was but its custos, and the freehold was in the king. On the other hand, the offices—they were chiefly ornamental offices—which had become hereditary—were but seldom connected in any inseverable fashion with the tenancy of lands, save where the discharge of the office was regarded as the service due from the land, and in that case it was the office that was appurtenant to—or rather that was due from or issuing out of—the land, and not the land that was appurtenant to the office. I cannot but think that there must have been some highly peculiar and almost unique facts in the case of the Warden of the Fleet, which prevented it from falling into one of these well-known categories. But at any rate the title “land appurtenant to an office” has, so far as I can see, been from first to last somewhat of a caput mortuum in our books; and yet it is under this heading that Sir Orlando Bridgman is constrained to bring the case of the Aston villagers.
Could he have worked out his theory in the thirteenth century? I seriously doubt it. If “the sixteens” existed in the Aston of that age—and I am not denying that they did—most of them were unfree men. Would it not have been grotesque to attribute to men, who had but precariously customary rights in their arable virgates, the freehold in the accessory hams and leyes? And then is it not law that if my villain acquires a freehold, I may seize it and appropriate it? And what if the sixteen co-owners misconduct themselves and refuse to perform their “official” duties? Has thirteenth-century law any mode of bringing them to book? Court of Chancery there is none for the enforcement of a trust. The king will hardly be induced to set in motion those prerogative processes of administrative law which can be brought to bear upon royal officers, including the ruling officers of the boroughs. The villagers must trust to pure common law, to the writs that are “of course,” and I think that in easily conceivable circumstances they will have the greatest difficulty in enforcing their custom against their freeholding “officers.”
Now the argument that the law of the later middle ages had no place, or at all events no obvious and convenient place, for such an arrangement as is discovered at Aston, might, were it tendered as a direct proof that such an arrangement cannot be very ancient, be encountered by the assertion that, on the contrary, the incapacity of the law to explain the phenomena may well be the incapacity of modern law to explain ancient phenomena, may well, in this particular instance, be the incapacity of feudal law to compass facts that belong to a prefeudal age, or (to use another set of terms) the incapacity of individualistic law to compass facts that belong to a communistic age. In the debate that would thus be raised much might be said on the one side and on the other; in particular, were I to enter into the discussion, I should like to raise the question whether it is very probable that these ideas of corporate ownership and official ownership, which we seem to see our English lawyers laboriously constructing in the fourteenth and fifteenth centuries, are in truth very ancient and even primitive ideas which have for a while been submerged and even destroyed by a flood of feudalism and individualism. But waiving this general question, we may yet learn a valuable lesson from the grave difficulties that our common law finds in the Aston case. Whatever we may think of very remote times, we seem to be driven to the conclusion that for several centuries before Bridgman's day arrangements similar to those which existed in this Oxfordshire village, had been exceedingly uncommon. The learned conveyancer, the future chief justice and lord keeper, does not tell Mr Horde that what is seen at Aston may be seen in a hundred other villages, that the ownership of land by “sixteens” or similar officers is a well-known thing; he does not suggest that the Aston community could make itself a corporation by prescription; he sends his client all the way to the Fleet gaol for an analogy. But during the past centuries the open field system of husbandry had been, and in Bridgman's day it still was, exceedingly common, and this too in many a village which as a whole was not subject to any manorial control.
It seems to me that some of our guides in these matters are in danger of exaggerating the amount of communalism that is necessarily implied in the open field system of husbandry. We have of course the clearest proof that the system can go on subsisting in days when manorial control has become hardly better than a name, that it can subsist even in the eighteenth and nineteenth centuries. We have also, so I think, fairly clear proof that it can subsist from century to century in many a village that has no court, no communal assembly. No communal bye-laws and indeed no legal recognition of the communal custom are absolutely necessary for the maintenance of the wonted course of agriculture; the common law of trespass maintains it. As a matter of fact, a man cannot cultivate his own strips without trespassing on the intermixed strips of his neighbours. He must let them trespass on his land at the usual times and seasons, because at the usual times and seasons he will want to trespass on their land. The effect of this may be that his right to till his land as and when he thinks best will be much restricted; but the restraint will be set by the rights of other individuals, not by the rights or the bye-laws of a community1 . In the village which has open fields we may see each of the neighbours owning his arable strips by a several title, enjoying his pasture rights by a several title. Even if there be lot-meads, each of these “moveable freeholds” may be held by a several title, and their rotation may be regarded as having been fixed once for all, and as being alterable by nothing short of an unanimous agreement or a statute of the realm. Open field husbandry has shown itself to be not incompatible with a very perfect individualism, a very complete denial that the village community has any proprietary rights whatever or even any legal organization.
This having been so in modern times, this (to all appearance) having been so throughout the later middle ages, are we quite certain that it has not been so from the beginning? I do not aspire to answer this question, still I cannot but think that some of our current theories are finding it too simple a question, are failing to notice the ease with which a common field husbandry, when once established by some original allotment of land, can maintain itself even though there be in the case nothing that we dare call a proprietary corporation or a self-governing community.
For my own part I cannot assume, as some in the heat of controversy seem apt to assume, that concerning the ancient history of the typical English village (I say “typical,” for no one supposes that all our townships have had a similar history), we have just two theories to choose between and no more; that if we cannot accept as the normal starting point “great property,” widespread servility and the Roman villa, we must begin by ascribing land-ownership to free village communities. The free village, the village which as a whole is free from seignorial control, I can somewhat easily believe in, for—so it seems to me—I can see many such a village in the pages of Domesday Book, many a village full of sokemen, who may fairly be described as free land-owners, though they have been commending themselves, one to this lord, another to that. Whether such a state of things is common or rare, typical or abnormal, a survival or a novelty—these are serious questions; but the village full of free land-owners we can readily conceive. On the other hand the village land-owning corporation, can we conceive this and carry back our concept into—I will not say archaic, I will say—Anglo-Saxon times? Did men distinguish between co-ownership (which in truth is just as “individualistic” as any several ownership can be) and ownership vested in corporations? Did they distinguish between the corporation and the group of corporators, between the universitas and the aggregate of singuli? Did the villager feel that when he reaped a crop, or turned out his beasts to pasture, he was exercising not a dominium but a jus in re aliena, that he was using land that belonged neither to him, nor yet to him and his neighbours, but to a quite other person, an invisible being, a thought? Did he again distinguish between manifestations of proprietary right and manifestations of governmental power? Was he certain—are we certain—that when the village moot (if any village moot there was) prescribed a particular course of agriculture, it was exercising land-ownership and not merely governing a district, not merely behaving as a modern town council behaves when it decides what buildings may be set up within the limits of the borough? May it not again be that such communalism as we find in the ordinary village of later times is in a large measure the result of seignorial pressure? In fine, is it not very possible that the formula of development should be neither “from communalism to individualism,” nor yet “from individualism to communalism,” but “from the vague to the definite”?—England, owing to its theoretically perfect feudalism, may not be so good a field for the pursuit of these questions as some other countries in which they are being diligently discussed. There is all the more reason why we should expressly raise them and keep them before our minds; otherwise it may fall out that we shall turn history topsy-turvey, and attribute to primitive man many an idea that he could not for the life of him have grasped.
Township-moot and Vestry.
So far as I am aware our only authorities for the term “township-moot” are a very few charters of the Angevin kings, such as Richard's for Wenlock Priory (Eyton, Shropshire, III. 237), Richard's for Chertsey Abbey (Monasticon, I. 433), and John's for Chertsey Abbey (Rot. Cart. Joh. p. 6), in which the grantees are freed “ab omnibus schiris et hundredis requirendis, et placitis et querelis, et hustingis et portmanemot et tunsipemot.” This will seem very remarkable when we consider the hundreds and thousands of instances in which the English names of other local assemblies, shire, hundred and halimot, are mentioned. The occurrence of the “tunsipemot,” in close connexion with the “hustings” and the “portmanemot” suggests, so I think, that it was chiefly within the cities and boroughs that an assembly called a “townshipmoot” was to be found. But I am quite ready to believe that a manorial court sometimes bore this name. Often enough a manorial court was as a matter of fact a court of and for a vill. In Latin it will be called Curia villae de X, and, since we know that down to the end of the middle ages the word “moot” was the common English equivalent for “curia,” it would be somewhat strange if a manorial court was never called a “townshipmoot.” But though this be granted, we are still far enough from the proposition that every township as such has a moot, while the leap from the “townshipmoot” to the vestry seems to me a most perilous feat. After weighing all that has been said to the contrary by that able and zealous pioneer of history, Mr Toulmin Smith, it still seems to me that the vestry is a pretty modern institution; that we shall hardly trace it beyond the fourteenth century, that it belongs to the parish, a purely ecclesiastical entity, not to the township; that it is the outcome of the church rate, which in its turn is the outcome of the appropriation of tithes and the poverty of the parochial clergy; that the churchwardens also are pretty modern. Gradually the vestry may take upon itself to interfere with many things; the manorial courts are falling into decay, and the assembly which can impose a church rate may easily aspire to impose other rates; but the germ of the vestry is an ecclesiastical germ. The vestry belongs to the parish, and the temporal law of the thirteenth century knows nothing of the parish. If we take up a plea roll of that period we shall find the villa mentioned on almost every membrane; of the parochia we shall read no word unless we happen to stumble upon a dispute about tithes.
The Warden of the Fleet.
The Wardenship of the King's House and the Fleet Gaol was a hereditary office which was held in fee. In Edward I's day it was so held by one Ralph of Grendon (Calend. Genealog. I. 294). In Edward IV's day it seems to have been so held by a woman, Elizabeth Venur (Y. B. 4 Edw. IV, f. 6. Pasch. pl. 7). Charles II made a grant of the fee simple; Mr Huggins, of infamous memory, held it for two lives. I cannot say that never during the middle ages was it held at the king's will, but I believe that the well-known dicta about it refer to an office that is usually held in fee simple by one who not unfrequently demises it for lives or for years. I do not know of any very ancient dicta about it; but in the Year Books of Henry VII we come upon the now familiar example more than once. “Land may be appendant to an office as in the case of the Warden of the Fleet” (I Hen. VII, f. 29. Trin. pl. 6). This is said in a case which seems to show that the same doctrine had been, and could be applied to some other offices, such as the wardenship of certain royal forests. “The Wardenship of the Fleet has land annexed to it, and this passes by grant of the office without any livery of seisin of the land” (8 Hen. VII, f. 4. Trin. pl. x). “It has often been seen that the Warden of the Fleet has pleaded that he was seised of the office of the Fleet by the king's grant, and that he and all those whose estate he has have used to take a certain sum of money from everyone who had a place in this Hall for the sale of his merchandise” (12 Hen. VII, f. 15. Pasch. pl. I). I should not be surprised if the shops in Westminster Hall were the main foundation for the whole doctrine. There, under the very eyes of the justices, the warden, his deputy or lessee, was taking rent from the occupants of the stalls. One had to ascribe to him some sort of interest in those stalls, but this sort had to be an odd sort, for it would have been impossible to hold that he was seised of the soil on which the king's palace was built. He has an official interest in the shops; it is a freehold interest, for he holds his office in fee or for life; and yet he is not seised of the land. There may have been some forest wardens, who were in much the same position, having a right to let land and pocket the rent arising therefrom, though the king was seised of that land; but I do not believe that the case was common. For the more part in our mediaeval law the link between land and office is tenure by serjeanty; a man holds the land by the service of filling the office.
Law Quarterly Review, Jan. 1893.
Municipal Corporations Report, 1835, vol. IV. p. 2598.
Report of 1880, p. 15, Evidence, p. 503.
Municipal Corporations Report, 1880, Minutes of Evidence, pp. 362–8.
Report of 1835, vol. III. p. 1483.
Report of 1835, vol. III. p. 1459.
Ibid. p. 1493.
Report of 1835, vol. III. p. 1745.
Report of 1835, vol. III. p. 1597.
Report of 1835, vol. III. p. 1435.
Report of 1835, vol. III. pp. 1993–7.
Report of 1835, vol, III. p. 2028.
Gomme, Village Community, p. 187.
Municipal Corporations Commission, 1880, Report, p. 73, Evidence, pp. 127, 292, 831.
On pp. 74, 75 in their Report the Commissioners make two inconsistent statements about this. In one place they speak as though the assistant burgesses were a self-elected body, in another they speak as though the landholders became assistant burgesses in order of seniority. It is clear, however, from the evidence that the former statement is the more correct; see Questions, 5396–5400, 6286–6300, 6495–6500.
D. B. I. 64 b.
Rot. Cart. I. 213.
Registr. Malmesb. I. 117.
Ibid. II. 150–5.
Kemble, Cod. Dipl. No. 1128 (vol. 5, p. 251).
For Beverley see Municipal Corporations Report of 1835, p. 1453; for Axbridge, ibid. 1091; for Barnstaple, Hallam, Middle Ages (ed. 1837), vol. III. p. 46.
Charter Roll, 12 Henry IV (2 July), memb. I.
Patent Roll, II Car. I (24 July) part 30; Patent Roll, 8 Will. III (14 Nov.) part I.
Thus at Beccles the Twelve and the Twenty-Four; at Salisbury the Twenty-Four and the Forty-Eight.
Mr Gomme supposes (pp. 197–8) that the 280 commoners and the 24 assistant burgesses are relatively modern, so that “we have left as representatives of the archaic tribal constitution of Malmesbury the forty-eights and the thirteen.” I cannot myself see any proof or probability that the forty-eight “landowners” are older than the twenty-four “assistant burgesses”; nor can I follow Mr Gomme in his argument that the commoners are a new class, a class that has come into existence since 1685, for it seems to flatly contradict the evidence that he has himself adduced on p. 188. Nor can I follow him in treating as “archaic” a certain rhyming formula about Ætheistan, which the burgesses are said to repeat when the plots of land are transferred, for even if we consent to call Æthelstan “archaic” we can hardly do the same for an English verse that rhymes. The one trait of the Malmesbury constitution that seems to me very rare is the division of the burgesses into six “hundreds.”
I cannot follow Mr Gomme in his account of the Chippenham case; for one thing because he refers (p. 180) to Chippenham in Wiltshire a passage in the Hundred Rolls (II. 506) that belongs to the less known Chippenham in Cambridgeshire. This triumph over space seems to me hardly bolder than some of his triumphs over time.
See the papers by Benjamin Williams in Archaeologia, vol. XXXIII. p. 269, vol. XXXV. p. 470; the case and opinion printed by Joshua Williams in The Jurist, New Series, vol. XII. pt. 2, p. 103, also Joshua Williams, Rights of Common, p. 86; Giles, History of Bampton; Gomme, Village Community, p. 157.
Archaeologia, XXXIII. 270–1. It seems evident that a considerable part of the lands with which we have to deal cannot have lain in what now is deemed the hamlet of Aston with Cote, for if, as Mr Benjamin Williams says, the arable yard-land at Aston contained on an average twenty-seven acres, then the sixty-four yard-lands contained 1,728 acres, but according to modern computation Aston with Cote contains but 1,870 acres, and so hardly any room is left for the meadows and the commons, which we are told were extensive.
“Sixteen persons, one for every hide, take their turn yearly in the authority of the sixteen”: Case for the opinion of Sir O. Bridgman. But the case goes on to speak of the sixteen as chosen, so this point is not very clear.
R. H. II. 688; and see 703, where the manor of Shifford appears. A correcter transcript is given by Vinogradoff, Villainage, p. 450.
The title is traced in Archaeologia, XXXIII. 270.
It is difficult to discover from the record which of the virgates mentioned in it are in the Aston fields.
Williams, Rights of Common, p. 87. “The hundred and manor of Bampton, which comprised all those three several manors, was a superior lordship.”
D. B. I. 154 b.
P. Q. W. 664.
P. Q. W. 668; Giles, History of Bampton, p. 128.
Kemble, Cod. Dip. No. 714 (III. p. 339). Shifford was given to the Abbey by Æthelmar, to whom it was given by Leofwin; King Edgar had given it to Brithnoth. See D. B. I. 155, where, for reasons given in Monast. III. I, the land appears as held by the Bishop of Lincoln. As Æthelred's book seems to treat the estate at Shifford as lying in a ring fence, as Domesday estimates this estate at but three hides, and as in Edward I's day the Abbot had at least twelve hides at Shifford apart from what he had at Aston, it seems probable that the Aston lands came to him in other ways, and in the Monasticon are notices of several charters giving him lands at “Estone.” One virgate at Aston he held of Robert Pugeys, another he held in frankalmoigne “quo warranto nescimus.”
R. H. II. 690.
This charter is No. 16 among the Exeter documents reproduced in Part II of the Anglo-Saxon MSS. (Ordnance Facsimiles). The land comprised in it seems to lie within a ring fence. See also D. B. I. 155.
Besides this Aston there are at least three others in Oxfordshire—North Aston, Steeple Aston, and Aston Rowant.
Report on Commons Enclosure, Parl. Papers, 1844, vol. v. Qn. 4100, “The horses of one party ploughing, would unavoidably tread down and destory the crop which was growing on his neighbour's land?” Mr T. S. Woolley—“Yes; it is almost impossible that land so intermixed should be cultivated with different crops; it same crops, and at the same time; unless all the lands be cultivated by one horse.” This “almost necessary consequence” is one that is drawn by the common law of trespass.