The Online Library of Liberty

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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.

II.

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.

NOTES.

THE HISTORY OF A CAMBRIDGESHIRE MANOR1

It is not often that one has the good fortune of being able to study a series of mediaeval documents at one's own time and in one's own house; but this was given to me by the late Mr O. C. Pell, lord of the manor of Wilburton, in the county of Cambridge. He committed to my care a splendid line of court and account rolls which, though there were some gaps in it, stretched from Edward I to Henry VII, and now, the consent of his successor, Mr Albert Pell, having been very kindly given, I am able to lay before the readers of this Review a fairly continuous history of a particular English manor during the later middle ages; and to me it seems that at the present time we have some need for histories of particular manors, for I am convinced that the time has not yet come when generalities about the English manor and its fortunes will be safe or sound.

The manor of Wilburton, on the edge of the fen, formed part of the ancient estates of the church of Ely. It is fully described in two “extents,” the one made in 1221, the other in 12771 . Of these its late lord, who was deeply interested in its history, gave an account in the Proceedings of the Cambridge Antiquarian Society2 . I shall here speak of them very briefly, for they are but the prelude to those documents which are the theme of this essay.

The two extents begin by describing the demesne land—that is, the land which is in the lord's own hand. In the extent of 1277 he has 216 acres (“by the lesser hundred and the perch of 16 ½ feet”) of arable land, and besides this he has meadow land and a wide expanse of fen. In the next place an account is given of the holdings of the “freeholders” and “hundredors” (de hundredariis et libere tenentibus). Of these there are nine, one with 16 acres de wara, four with 12 acres de wara apiece, two with 6 acres apiece, two with 2 ½ acres apiece. This arrangement remained constant during the half-century which elapsed between the two surveys. These “freeholders and hundredors” pay small money rents—the holder of 12 acres pays 2d. a year—they owe two days’ ploughing in Lent and two in winter, for which they receive 1d. a day; they have to attend the great boon day in autumn. They owe suit to the court of Wilburton and must attend the hundred court, which is in the bishop's hand; hence their designation as hundredarii. In the later extent it is expressly stated that they owe a heriot (best beast, or 32d.), a fine for marrying their daughters (32d.), leyrwite and tallage; the gersuma, or fine for marrying a daughter, is mentioned in the earlier extent.

In the court rolls the existence of freeholders can from time to time be detected. They owe suit of court; they are often amerced for not doing it or compound for it with a small sum of money. There are entries also which show that they still owe ploughing service and that some of them are very lax in performing it. Again, descents and alienations are sometimes presented and the heriot is still due. But on the whole these freeholders seem to have played only a small part in the manor; the names which occur on the court rolls are chiefly those of customary tenants.

In the extents the description of the freehold tenements is followed by the heading “De Operariis et Plenis Terris.” The full land (plena terra) consists of 12 acres de wara. Of this thorny phrase de wara I will here say nothing—its interest lies in a remote past—save this, that as a matter of fact the full land at Wilburton really consisted of 24 acres. Of these full lands there are fifteen and a half. The holder of such a tenement pays 19d. a year—12d. as wite penny, 6d. as sedge silver, 1d. as ward penny. From Michaelmas to Hokeday he does two works a week according to the earlier survey, three according to the later; from Hokeday to Lammas three works a week, from Lammas to Michaelmas five works a week; and besides all this there is a good deal to be done which is not computed as part of the regular week work. On the whole the services, which are more elaborately described in the later than in the earlier of the two surveys, and which perhaps have become heavier during the interval, are of the familiar type1 .

Then there were 10 ½ cottage tenements, which even in Henry VII's day still preserved a relic of the Domesday terminology in the name “cossetles.” The holder of each such tenement paid 7d. a year—4d. for wite pound, 2d. for sedge silver, 1d. for ward penny—and did two works in every week. The holders of the full lands and the cottiers owe suit to the lord's mill, a fine for marrying their daughters, leyrwite and tallage; they cannot sell colt or ox without the lord's leave.

We already see that a basis has been fixed for the commutation of labour into money. Every “work” in autumn is, we are told, worth one penny, and out of autumn every work is worth a halfpenny; we also see that one half-cotaria is held by a tenant who “at the will of the lord” pays 2s. a year in lieu of his labours; but the profit of the manor is reckoned mainly in “works.” In the way of money rents the lord draws but 31s. a year from the manor, besides some small dues; on the other hand 3773 ½ “works” are owed to him, by a “work” being meant the work of one man for one day.

From 1221 down to the very end of the middle ages the manor seems to have kept with wonderful conservatism what we may call its external shape—that is to say, at the end of this period the distribution of the customary tenements into “full lands” and “cossetles,” or cottier tenements, was still preserved, though the “full land” was often broken into two “half-lands.”

At the beginning of the fourteenth century we see that some of the “works” were done in kind, while others were “sold to the homage.” Thus there is an account for seventeen weeks in the winter of 1303–4 during which the temporalities of the see of Ely were in the king's hand; in this the bailiff and reeve, after charging themselves with the rents of assize (i.e. the fixed money rents), proceed to account for 10s. 10d. for 260 “winter works sold to the homage at the rate of a halfpenny per work.” In a later part of the account we see how this number of “works” is arrived at:—the officers account for 1385 works arising from 15 ½ “full lands” and 10 cottier tenements; they then set against this number the 260 works sold to the homage, 355 works sold to the executors of the late bishop, 57 works excused to the reeve and reaper, 38 works excused to the smith, 19 works due from a half-cotaria which has been let at a fixed rent, 14 ½ works excused on account of the Christmas holiday, 363 ½ works the amount of ploughing done, 258 works the amount of harrowing done, 20 works in repairing the ditch round the park at Downham, thus getting out the total of 1385 works.

A little later comes a series of accounts for some consecutive years in Edward II's reign. The basis of these accounts, so far as works come in question, is that 2943 winter and summer works, valued at a half-penny apiece, are due, and 845 autumn works valued at a penny. These numbers seem subject to some slight fluctuations, due to the occurrence of leap years and other causes. Then the accountants have to show how in one way or another these works have been discharged, and in the first place they must account for “works sold.” In the year ending at Michaelmas 1322 the accountants charge themselves with the value of 1213 winter and summer works and 60 ½ autumn works which have been “sold”; in the next year with the value of 1297 ½ winter and summer works and 170 ½ autumn works; in the next year with the value of 1496 winter and summer works and 149 autumn works; in the next year with the value of 1225 ½ winter and summer works and 218 ½ autumn works; in the next year with the value of 1023 winter and summer works and 247 ½ autumn works; in the next year with the value of 1381 winter and summer works and 63 ½ autumn works. In these and in the later accounts it is not usual to state to whom or in what manner these “works” were “sold”; but there can be little doubt that they were sold to those who were bound to do them—that is to say, when the lord did not want the full number of works he took money instead at the rate of a halfpenny for a winter or summer work and of a penny for an autumn work. The phrase “works sold to the homage,” which occurs in the accounts of Edward I's time, may perhaps suggest that the whole body of tenants were jointly liable for the money which thus became due in lieu of works.

It will be seen that the number of “works sold” does not amount to half the number of works due. How were the rest discharged? In the first place some were released; thus the reeve, the reaper, and the smith stood excused; and then again holidays were allowed on festivals; thus the occurrence of the feasts of St Lawrence and St Bartholomew serves to discharge a certain number of the autumn works. But very many of the works were actually done; thus in one year 203 “diets” of ploughing between Michaelmas and Hokeday discharge 406 works; in the previous year 377 works had been discharged in similar fashion, in the year before that 406, in the year before that 420 ½. Ploughing, mowing, harrowing, and the like are always wanted; other works are accounted for now in one fashion, now in another. In one year 26 works were spent on the vineyard at Ely, in another 3 works were spent in catching rabbits; but on the whole the opera are laid out in much the same manner in each successive year.

I have examined the accounts for the last six years of Edward II's reign; their scheme is as follows: the accountant is the reeve; his year runs from Michaelmas to Michaelmas. He begins by debiting himself with the arrears of previous years. The next item consists of “Rents of Assize.” These are the old money dues payable by freeholders and customary tenants; they amount to no great sum—about £2—but show a slight tendency to increase, owing to the “arrentation” of some of the minor services; for instance, 19d. is accounted for in respect of a release of the duty of collecting sticks in the park at Somersham. Next comes “Farm of Land,” a single item of 32s. in respect of 24 acres of demesne land which have been let at a rent. By far the most important item is “Sale of Crops,” a very variable item, fluctuating between £8 and £54. Then follows “Sale of Stock.” Then comes “Issues of the Manor” (“Exitus Manerii”). Under this head the reeve accounts for the number of “works” that have been “sold,” also on occasion for the price of fowls and turf. The “Perquisites of the Court” comprise not only the amercements, but also the fines payable on alienation of the customary tenements and the like. The last item consists of “Sales accounted for on the back of the Roll”; these seem to consist chiefly of sales of malt. The total income varies between very wide limits, rising to £66, falling to less than £20.

On the credit side the first heading is “Allowances” or “Acquittances.” A sum of 3d. has to be allowed because the reeve is excused that sum from his rent. Under “Custus Carucarum” stand the cost of making and repairing ploughs, shoeing horses, and so forth. About 5s. per annum is spent in paying 2d. per plough per day for every one of the sixteen ploughs of the tenants engaged in the “boon ploughing” for winter seed and for spring seed. The “Cost of Carts” is sometimes separately accounted for; the cost of “Repairs of Buildings” is by no means heavy. Under “Minute Necessaries” fall the price of various articles purchased, also the wages of the only money-wage-receiving labourers who are employed on the manor—namely, a swineherd at 4s. 4d. per annum and an occasionally employed shepherd at 5s. a year. “Threshing and Winnowing” are paid for as piece work. “Purchase of Corn” and “Purchase of Stock” are headings that need no comment. Under “Mowing and Harvesting” (“Falcatio et Autumpnus”) we find no heavy charge; all that has to be paid for is the tenant's harvest dinner, and the wages during harvest of the reeve and “repereve.” Sometimes under the head of “Forinsec” (or Foreign) “Expenses” occur a few small sums not expended directly on the manor.

The reeve then accounts for the money that he has paid into the exchequer at Ely, and then the account is balanced and generally leaves him in debt. Apparently the annual profit of the manor varied between very wide limits. The reason of this fluctuation is to be found chiefly in the sales of corn. The highest prices of the wheat sold in these six years are as follows:—

Such figures as these, though they may be familiar enough to economists, are worth notice, for they show us that however stable an institution the manor may have been from century to century, agriculture involved a very high degree of risk.

On the back of the account roll the reeve proceeds to account for the produce of the manor and the “works” of the tenants. First comes “Compotus Grangie” (“Barn Account”). The reeve has received so many quarters of wheat from the barn; so many have gone in seed, so many in provender for the manorial servants, so many remain in the barn. Rye, barley, pease, oats, and malt have to be similarly accounted for; the account is checked by tallies between the reeve, the reaper, and the barn-keeper. There are four ploughmen and one shepherd who are famuli manerii and in receipt of corn, each of them getting one quarter per week during some twelve weeks of the year. Next comes “Compotus Stauri” (“Account of Live Stock”), under which heading the horses, oxen, and pigs are enumerated. Then under “Compotus Operum” (“Account of Works”) the reeve has to show, as explained above, how some 3700 works have been discharged, the autumn works, worth a penny apiece, being distinguished from the winter and summer works, worth a halfpenny. Thus in one of these years he has to account for 814 autumn works; he does so thus:—

Thus out of this batch of works more than half have actually been done.

Now, glancing at the manor as a whole, we see that to a very large extent it is still dependent on the labours of its villains. The whole amount received by way of rent is but £2. 10s., or thereabouts, while the price of works sold brings in some £3 or £4. Almost all the regular agricultural work, with the exception of threshing and winnowing, is done for the lord by his tenants. He is as yet no great “employer of labour” in the modern sense; wages are a comparatively trifling item in his accounts. He generally employs a hired swineherd and a hired shepherd, and during some part of the year he has ploughmen, who are paid in grain. But the main part of his ploughing, reaping, mowing, harrowing is done by those who are bound to do it by status or tenure.

From the reign of Edward III there are no accounts; but turning to those of Richard II's time we find that the theory of the account, so far as “works” are concerned, is still the same. It is now reckoned that there are 2970 winter and summer works, worth a halfpenny apiece, and 813 autumn works, worth a penny apiece, to be accounted for. Some of these works are “sold,” some not sold; thus in the year ending Michaelmas 1393 we find 183 works of the one class and 93 of the other class accounted for as sold. The number of works sold varies much from year to year. Many hundred works are still done in kind; but the number so done has been diminished, because no less than four full lands and nine cottier tenements “are in the lord's hand” and have been let out at money rents. This has introduced into the account a new element— namely, “Rent of Bond Land” (“Firma Terre Native” or “Firma Terre Nativorum”), which brings in about £9 a year. A large number of opera has, therefore, to be subtracted on this score, e.g. 528 winter and summer works in respect of the said 4 full lands and 836 similar works in respect of the said 9 cottier tenancies. Exactly when or how the change occurred the extant accounts do not show. Already in the first year of Richard II there were 3 full lands and 8 ½ cottier tenements let at a rent for short terms of years and doing no work. But by connecting the accounts with the court rolls we are enabled to infer that these lands were vacated by villains who fled late in the reign of Edward III; thus the first full land on the list is that of John Thorold, who fled in 1376 or thereabouts, and of whose flight the court rolls continue to talk for the next forty years.

Turning, therefore, to the court rolls, we find many entries which seem to show that during the last half of the fourteenth century and the first quarter of the fifteenth the lord had great difficulty in keeping and finding customary tenants on the old terms. Some examples shall be given.

(1364) J. W., who held a full land, has eloigned himself outside the dominion of the lord, and altogether relinquished the said land, which has, therefore, remained in the lord's hand for default of a tenant; N. R. now comes and takes the land. (1365) N. R., mentioned in the last entry, has now relinquished (omnino reliquit) the land; his goods are seized into the lord's hand; they include beasts, swine, household utensils, &c., valued at 33s. 10d., exclusive of the corn. (1366) H. G., who held a half-land and cottage, has eloigned himself outside the lord's demesne; his goods and crops are seized into the lord's hand. (1366) R. O., who held a full land, has eloigned himself and abandoned his land, taking with him a plough and a pair of quern stones, against the custom of the manor; let him be attached. (1370) J. C. held a cottage, but has relinquished it because of his poverty (propter impotenciam); so it has been seized into the lord's hand and is now let to J. G. for twelve years at a money rent. The tenement abandoned by R. O, is let in the same way. (1370) J. W. takes for twenty years a full land which is in the lord's hand for default of a tenant. In similar circumstances A. L. takes a half-land for twelve years. Several similar entries follow. (1371) S. T. takes for his life a half-land which is in the lord's hand for default of a tenant; he pays no fine, for he takes it unwillingly (quia invito capit). Other lands which are in the lord's hands are granted out provisionally until permanent tenants can be found. (1372) One full land, three half-lands, three cottages, and six half-cottages are in the lord's hand for default of tenants, but some of them have been temporarily let; tenants ought to be found for them, and let proclamation be made that any heir or other person who has any right in them do come and claim them. Proclamations to this effect are made at several successive courts. (1380) W. W., who held a messuage and a full virgate of customary land, has left the manor, waived his land, and carried off his chattels to Chesterton [which is ancient demesne]. J. M. removed the chattels for him, knowing him to be the lord's tenant. Let J. M. be distrained to answer for these chattels, and let a writ be sued out against W. W. [for being on the ancient demesne there can be no talk of seizing him]. (1384) W. S. surrenders a cottage and two acres of “native land,” which he held for 5s. a year, for that this was too dear (eo quod nimis cara), as the whole homage testifies; it is granted to J. P. and his wife and their sequel at 3s. a year. A case of surrender follows, in which the new tenant is to pay 3s., instead of 5s., paid by his predecessor, the whole homage again testifying that the rent had been too high. (1387) It is ordered in many successive courts that a tenant be found for the lands lately held by J. A., which he has abandoned (reliquit fugitive). (1392) It is presented by the reeve that S. T., who holds a messuage and half a “cossetle,” is unable to maintain the said tenement and do the services (impotens est predictam terram et tenementum manutenere et defendere versus dominum); therefore the lord's officers must find a new tenant, and in the meantime answer for the issues.

Throughout the court rolls of Henry IV's reign cases continue to occur in which lands have been abandoned or “waived,” and other cases in which rents are reduced. Thus (1401) it is presented that Agnes D., who holds a half-land, is unable to maintain it and do the services due to the lord, and that the jurors have provided R. N. to take the land; he is to pay 12s. rent instead of doing the services which Agnes did, and only pays 2s. by way of fine for admittance, because he is an unwilling tenant. The house is ruinous; the land is out of cultivation; one of his neighbours provides him with the requisite seed. (1409) Mariota, widow of J. N., who held a full virgate for life, has left the lord's domain, gone to Haddenham, taken a husband, and “waived” the land, so that it has come to the lord's hand. (1410) A cottier tenement formerly held at a rent of 4s. is granted out at a rent of 2s.

It is not necessary, perhaps not justifiable, to infer from this evidence that the customary tenants of Wilburton were in any absolute sense badly off, that they could not live and thrive upon their tenements. The true explanation may be, not that they were in distress, but that they saw a more attractive prospect elsewhere. An increased demand for hired labour and a consequent rise of wages may have been the forces which drove the peasantry to desert their holdings. Unfortunately there are neither accounts nor court rolls which testify to the immediate effects of the Black Death; but, so far as I can see, the bishop's difficulty in finding tenants, who will take the full lands on the old terms, begins at a somewhat later time and thenceforth increases.

Nor need we suppose that none of the tenants were contented with their lot. During the same period we find cases in which an heir or surrenderee is willing to promise the old services and to pay a fine on admission. To give a fair idea of the situation I will make notes of the various entries which relate to changes among the tenants of the 15 ½ full lands between 1364, when the court rolls begin, and the accession of Henry of Lancaster.

(1364) William Starling surrenders half a full land to the use of John Osbern. John Walter, who held a full land, late that of Andrew Cateson, has eloigned himself and relinquished his land; Nicholas of Roydon takes it, to hold at the accustomed services. (1366) Nicholas of Roydon has relinquished a full land; it is seized into the lord's hand. Aubin Willay has eloigned himself and relinquished one half-land; Henry Greneleaf has relinquished another. (1367) Richard Leycester takes the half-land formerly Aubin Willay's, to hold at a rent of 13s. until a permanent tenant can be found. (1367) Robert Osbern, who held a half-land, has deserted it. (1368) There are now in the lord's hand for default of tenants a full land late of Nicholas of Roydon, a full land late of John Thorold, a full land late of Robert Osbern, a half-land late of Aubin Willay, a half-land late of Henry Greneleaf, and two cottage tenements. (1369) Robert Tates takes the full land of Nicholas of Roydon for a term of seven years; he is to pay 5s. rent and to spend 2s. a year on improvements; he pays a fine of 3d. (1370) John Frost takes the half-land late of Robert Osbern for a term of twelve years at a rent of 13s. 4d.; he pays a fine of 6d. Aubin Willay takes as tenant for life a half-land, seemingly that which he relinquished in 1366. For half of it he is to pay a rent of 6s.; for the other he is to do the accustomed services. He pays a fine of 6s. John Atwell takes the full land late of John Thorold for twenty years at a rent of 26s. 8d.; fine, 12d. Andrew Lessi takes the half-land late that of Edmund Prat, now in the lord's hand for default of a tenant, to hold for twelve years at a rent of 14s.; fine, 12d. Richard Cokayne takes the halfland late of Henry Greneleaf for twelve years at a rent of 15s.; fine, 12d. John Downham takes a half-land late that of Nicholas of Roydon for twelve years, rendering in the first year 4s. for half of it and the accustomed services for the other half, and afterwards the accustomed services for the whole; fine, 12d. (1371) Simon Teye takes a half-land, late that of Nicholas of Roydon, for his life at the accustomed services; no fine, for he is unwilling. John Downham, junior, takes a half-land, late that of Nicholas of Roydon, until a tenant shall be found who will do the accustomed services, to hold at a rent of 15s.; fine, 6d. There are now in the lord's hand a full land late of John Thorold, a full land late of Robert Osbern, a half-land late of Richard in the Lane, a half-land late of Henry Greneleaf, a half-land late of Nicholas of Roydon, besides seven of the cottage tenements

[Hiatus in the rolls.]

(1379) Walter Wiseman marries Alice, widow of Richard Sewyne, tenant of a full land, and is admitted for his wife's life; fine, 2s. (1381) Walter Wiseman has fled with his chattels to Chesterton; let a writ be sued out against him. The full land known as Thorold's is divided into four portions; one is granted to Richard Tates, another to Nicholas Dony, another to Richard Walter and John Scot, another to John Downham, senior, and John Parsce; in each case the tenure is for ten years at a rent of 6s. 8d.; fine, 6d. John Atwell has been holding the lands, but he could not do the services. (1382) Alice Cokayne surrenders a half-land, late that of Henry Greneleaf; it is granted to Aubin Willay and John Scot, at a rent of 14s., to hold for their lives or until a tenant be found who will do the ancient services. (1382) Richard Downham marries Ellen, widow of John Newman, tenant of a full land; he is admitted; fine, 13s. 4d. The full land “waived” by Walter Wiseman is granted to John Arnold and Margaret, his daughter, for their lives, and the life of the survivor, at a rent of 26s. 8d. and suit of court in lieu of all service. (1382) John Atwell surrenders a full land to the use of John Warwick, who takes it from the lord for a term of twelve years at the accustomed services; fine, 18d. (1384) The tenement relinquished by John Arnold is in the lord's hand; the manorial officers answer for the issues. (1385) Anna Foldyng surrenders a messuage and a full land, for which she has been paying a rent of 29s. 4d., to the use of John Pontefyssche, who is admitted to hold at the same rent; fine, 8s.; John is to erect a chamber which Anna is to hold for her life, and is to demise to her an acre of the said land for life. (1386) Alice Cokayne, who held a full land for life as widow of Richard Cokayne, is dead; her son Andrew is admitted; fine, 6s. 8d. The tenement relinquished by John Arnold is still vacant. Nicholas Dony surrenders a parcel of a full land held by him at a rent of 6s. 8d. to the use of Richard Downham, who is admitted to hold to him and his at the said rent; fine, 12d. Simon Teye, who holds a half-land at the ancient services, is too feeble to do them; John Crombred takes the tenement to hold to him and his at the ancient services; fine, 6s. 8d. (1387) John Arnold's tenement is still vacant. (1389) John Downham, senior, tenant of a full land, is dead; his widow, Anna, is to hold for her life. Richard Downham and Ellen his wife, who in Ellen's right hold a full land, are too feeble to maintain the said land, and they surrender it, Ellen being separately examined; the lord grants it to Jacob Frost, to hold to him and his sequela at the accustomed services; fine, 3s. 4d., and no more, for he is an unwilling tenant; and since Richard and Ellen have let the tenement go out of repair and cultivation, Jacob is to have from them two mares (iumenta), price 15s., and four quarters of drage, price 8s., and they are to hear no more about the waste of which they have been guilty. Aubin Willay, who holds a half-land jointly with John Scot, surrenders his moiety to the use of John Downham, junior, who is admitted to hold at a rent of 7s. until a tenant be found who will do the ancient services; fine, 8d. Richard Downham surrenders his share of Thorold's tenement to the use of William Breche and Catherine his wife, who are admitted to hold to them and their sequela, at the rent of 6s. 8d., at which Richard held; fine, 8d. (1389) John Arnold's tenement is still vacant. (1390) John Atwell surrenders a full land, since he is too feeble to maintain it, to the use of John Warwick, who is admitted to hold to him and his sequela at the accustomed services; fine, 6s. 8d. John Arnold's tenement is still vacant. (1392) John Arnold's tenement is still vacant. (1393) Anna, widow of John Downham, senior, who held a full land for her life, is dead; her son, John Downham, junior, is admitted to hold to him and his sequela at the accustomed services; fine, 6s. 8d. John Arnold's tenement is still vacant. (1396) At the last court it was presented that Aubin Willay, who held a half-land, had gone away and waived it. He is now present, and on being examined states that he refuses and relinquishes the land, and he surrenders it to the use of Richard Scot, to whom it is granted at a rent of 12s., to hold to him and his sequela until some one shall come to take it at the accustomed services; and in case such a one appears, Richard is to have an option of continuing to hold at the said services, and should he reject this option is to receive from the incoming tenant the costs that he has laid out on the tenement; fine, 12d., and no more, because he is to build. John Arnold's tenement is still vacant. (1398) John Crombred, who held a full land, is dead; his widow, Ellen, is admitted to hold for her life; no fine. Richard Dony and Ellen, his wife, late widow of John Crombred, who hold a full land for the life of the said Ellen, surrender their estate, and the lord grants the said land to them and their heirs at the accustomed services; fine 2s. Nicholas Dony, holder of a half-land, is dead; his widow, Agnes, is admitted to hold for her life at the accustomed services; no fine. (1399) John Starling, holder of a full land, is too feeble to maintain the land, and surrenders it; the lord grants it to John Newman, to hold to him and his sequela at the accustomed services; fine, 6s. 8d. The outgoing tenant “demises” to the incoming tenant farming utensils and tillages, and pays 60s. to the incoming tenant in respect of waste, which money the incoming tenant is to spend in repairs. John Arnold's tenement is still vacant.

On the whole, after reading these entries our conclusion will probably be that, in the then state of the markets for land, labour, and food, the value of a full land copyhold of the manor of Wilburton, to be held by the ancient services, was extremely small, and was often accounted a negative quantity by the tenant—that is to say, he would rather not have the land than have it. Happy in their posterity were those who endured and got their services commuted into rents.

We may now compare the accounts of Richard II's reign with those of Edward II's. The scheme remains the same, but some new headings have made their appearance. The “Rents of Assize” now bring in £2. 3s. 0 ¾d.; there is here a trifling increase. The old “Farm of Land,” which brought in £1. 12s., is replaced by two headings—“Farm of Demesne Land” and “Farm of the Natives’ Land.” Under the former there is an increase during Richard's reign from 6s. 9d. to £1. 1s. 11 ½d. A good many small pieces, two or three acres apiece, of the old demesne have been granted out by entries on the court roll at money rents of about 1s. per acre. Under the “Farm of the Natives’ Land” fall the rents paid for those relinquished full lands, half-lands, and cottages which have fallen into the lord's hand and been granted out at money rents; the amount of these rents rises during the reign from £7. 10s. to near £10. “Sale of Corn” brings in some £20, and “Sale of Stock” a very variable amount. The “Issues of the Manor” bring in some £2 and the “Sale of Wool” some £3. The “Sale of Works” is separately accounted for, and at the beginning of the reign still brings in £3 or £4. The “Perquisites of the Court” have fallen rather than risen, and cannot be relied on for more than £2. There are now some sundry receipts which may raise the total by £1 or £2.

The credit side of the account presents some new phenomena. Under “Acquittances and Decay of Rent” we find that the rents with which the reeve now debits himself are by no means pure gain. As tenements fall into the lord's hand and are let out at new rents—rack rents—the old dues have to be forborne; they are not at once struck out of the account, but appear on both sides: it is conceived that the old rents have “decayed.” Under this heading also various allowances to the tenants are comprised, and a sum is thus shown which rises from 9s. to 15s. Other headings of discharge are “Purchase of Corn and Stock” (very variable), “Cost of Ploughs” (£1 to £2), “Cost of Carts,” “Repair of Buildings and Gates” (usually less than 10s., but rising to £5 when a new pigeon house is built), “Cost of Sheep and Fold” (less than £1), “Necessaries,” “Threshing,” “Servants’ Wages” (there is a shepherd, sometimes a boy to help him; the whole of this item is 10s. to 15s.), and besides this there is the cost of the “Boon Ploughing” and of the “Harvesting” (the tenants’ dinner).

An attempt has been made to bring out the net result of these accounts in a tabular form, in which are stated (1) the total of the items of charge, less arrears, (2) the total of the items of discharge, less money paid to the lord's use. During the fifteen years of Richard's reign for which accounts exist the excess of income over outgo varies between £23 and £50; its average is about £37.

On the back of the roll, as of old, appear the “Barn Account,” “Stock Account,” and “Account of Works.” The “Account of Works” for the year ending Michaelmas 1381, the year which saw the peasants’ rebellion, is as follows:—

Ploughings:—[He accounts for] 232 ½ diets of ploughing, proceeding from 15 ½ full lands for 30 weeks and two days between Michaelmas and Hokeday, falling this year on the last day of April, from each full land every other week one diet of ploughing reckoned as two works.

Total, 232 ½ diets.

Of which in acquittance of the reeve and reaper, each of whom holds a half-land in respect of his office, 15 diets; and in default of 4 full lands in the lord's hand and at farm, 60 diets; and in acquittance of 10 ½ full lands which are in work, in respect of the fortnight at Christmas, 10 ½ diets; and in ploughing the demesne land for wheat seed, 12 diets; and for spring sowing, 17 diets; and for diets sold, 118 diets.

Balanced.

Somererthe:—15 ½ diets of ploughing, called Somererthe, proceeding from the said 15 ½ full lands; to wit, for each full land, 1 acre ploughed and reckoned as 1 work as per the terrier.

Total, 15 ½ diets.

Of which in acquittance of the reeve and reaper, each of whom holds a half-land in respect of his office, and of the 4 full lands in the lord's hand and at farm, 5 diets of ploughing; and in ploughing the demesne land 10 ½ diets.

Balanced.

Benerthe:—56 diets of ploughing proceeding from the custumarii, as well free as native, according to the teams that they yoke; in the year from each custumarius with all the beasts that he yokes, 4 diets, at 1d. per diet, as per the terrier.

Total, 56 diets, accounted for by ploughing of the demesne land.

Nederthe:—15 ½ acres of ploughing and harrowing proceeding from 15 ½ full lands at two seasons called Nederthe, from each full land at each season ½ acre ploughed and harrowed without food and without being reckoned as a work.

Total, 15½ acres.

Of which in acquittance of the reeve and reaper, each of whom holds a half-land in respect of his office, and of the 4 full lands in the lord's hand and at farm, 5 acres ploughed and harrowed; and in ploughing of the demesne land 10 ½ acres.

Balanced.

Winter and summer works:—[He accounts] for 2936 ¼ works proceeding from 15 ½ full lands and 10 ½ cottaries, from Michaelmas to Lammas (1 Aug.); from each full land 3 works per week and from each cottary 2 works per week; price of each work, a halfpenny.

Total, 2936¼ works; price of a work, one halfpenny.

Whereof in acquittance of the reeve and reaper, each of whom holds a half-land in respect of his office, 130 ½ works; and in default of the 4 full lands in the lord's hand and at farm, together with the full land of Walter Wiseman, which fell this year into the lord's hand at the end of November, 498 ½ works; and in default of the 8 ½ cottaries in the lord's hand and at farm 639 ½ works, and in acquittance of 10 ½ full lands which are in opere for 147 diets of ploughing, arising from the same as mentioned above, at 2 works per diet, 294 works; and in acquittance of the said 10 ½ full lands which are in opere for “somererthe” as per the terrier, 10 ½ works; and in cutting 760 bundles of thatch, called lawthatch, among the full lands that are in opere—to wit, each 100 bundles reckoned as 1 work—9 works; in cleansing wheat and rye for seed, 12 works; in harrowing the demesne land for sowing wheat and rye, 46 works; in making a new murs1 for enlarging the lord's sheepfold, 37 works; in covering the same sheepfold, 32 works; in cutting the brushwood in the grove at Hadenham for inclosing the gardens, rabbit warren, “et le ponyerd,” 36 (?) works; in aiding the carrying of the said brushwood to the carts which had been brought there, 6 works; in aid in “shredding” (shridando) of the said brushwood at the rabbit warren at Wilburton and drawing it inside, 12 works; in securing the ditch round the said warren, 3 works; in carrying dung outside the manor to the fields within the Christmas fortnight, 40 works; in repairing the wall round the manor, which had fallen down, 61 works; in scouring the ditch round the ponyard, 13 works; in digging the lord's vineyard at Ely, 13 works; in harrowing the lord's land for spring sowing, 102 works; in breaking the ground for the same sowing, 22 works; in carrying pease from the rick in the manor to the barn for threshing, 6 works; in weeding the lord's corn, 60 works; in shearing 173 sheep of the lord, 32 works; in scouring the ditch round the park at Downham, 15 works; in mowing, 7a. 3r. of meadow in Emedwe, 20 works; in cutting, binding, and shocking the forage there, 20 works; in mowing 24 ½ acres in Landmedwe, 38 works; in making the hay there, in addition to the help given by the servants, 38 works; in carriage of the said forage and hay with two carts for two days, 20 works; in stacking the forage and hay in the manor, 8 works; in collecting dung in the manor in July, 6 works; in winnowing 161 qrs. 2 bus. of divers grain of the issue of the barn, as above, besides the 30 qrs. of barley for malting, 62 works; and in works sold, 484 ¾ works; and in 23 ½ works upon the account.

Balanced.

Autumn works:—[He accounts] for 814 works proceeding from the said 15 ½ full lands and 10 ½ cottages from Lammas to Michaelmas, during 8 weeks and 3 days, during which each full land works 5 days per week—to wit, Monday, Tuesday, Wednesday, Thursday, and Friday—and each cottaria works two days per week on days chosen by the bailiff.

Total, 814 works; price of each work, one penny.

Of which in acquittance of the reeve and reaper, each of whom holds a half-land in respect of his office, 41 works; and in default of 4 full lands in the hands of the lord, and at farm, 164 works; and in default of 8 ½ cottaries in the hands of the lord and at farm, 144 ½ works; and in acquittance of the 10 ½ full lands which are in opere for two festivals falling on their work days within the said time—to wit, the Assumption of St Mary, on a Thursday, and the Decollation of St John, on a Thursday [21 works]; and in reaping, binding, and shocking 96 ½ acres of divers grain at two works per acre, 193 works; and in carrying the lord's corn, 28 works, besides the help of the manor carts; and in stacking the lord's corn, as well in the barn as outside, 12 works; and in driving the lord's plough while the servant (famulus) of the manor was thatching a rick of pease, 3 works; and in carrying dung out of the manor, 38 works; and in works sold, 169 ½ works.

Balanced.

We see, then, that at the very end of the fourteenth century many of the old “works” were exacted. In some years more were “sold,” in some less. In the year ending Michaelmas 1397 only 8 out of 2970 winter and summer works were sold: some 800 were actually done; many of the others were discharged by the fact that four of the full lands and no less than ten of the cottage tenements had fallen into the lord's hand and had been let by him either permanently or temporarily at money rents. And on the whole the economy of the manor is far from being an economy of cash payments. The lord is no great payer of wages. For the regular field work he has no need of hired labourers; his only permanent wage-receiving hind is a shepherd, but there are ploughmen who receive allowances of grain.

Passing on now to Henry IV's reign, we find that the old mode of reckoning is still preserved. There are still 2970 winter and summer works due, but 5 full lands and 10 cottier tenements have fallen into the lord's hand and bring in nothing but money; more than £10 has now to be accounted for as “Rent of Bond Lands,” and a proportionate number of works has to be subtracted. Of the other works some are sold; in one year 204 of the winter and summer works are sold, while 114 have been discharged by harrowing. In 1407, however, the basis of the account was changed; it became a recognised fact that 6 full lands were no longer in opere, and the total number of winter and summer works to be accounted for was reduced to 1188, and that of autumn works to 378.

A great change seems to have taken place soon after this, during a period for which we have no accounts. In the first year of Henry VI (1423) the “Rent of Bond Lands” has risen to £22. All the “works” seem now to be released (relaxantur custumariis domini) except the boon ploughing:—76 “diets” of ploughing due from the customers, whether free or bond. Very shortly after this, in or about 1426, another great change was made. The demesne of the manor, containing 246 acres of arable land and 42 acres of meadow, was let to farm at a rent of £8, and the demise of the land which had been actually in the lord's hand seems to have carried with it the right to the ploughing service; that service, therefore, no longer concerns the bishop while the lease lasts (nichil hic quia conceditur firmario terre dominice cum firma sua). The demesne land is let cum operibus et consuetudinibus omnium custumariorum operabilium. This soon leads to a great simplification and abbreviation of the accounts, an abbreviation to be measured in feet. The receipts are now the old assize rents, the rent of the demesne, the rents of the bond lands, the perquisites of the court; the opera are no longer brought into the account, and the purchases and sales of stock and crops disappear, for these of course concern the firmarius, not the lord. The firmarius, it may be noted, is just one of the men of the vill, one of the copyholders, as we now may call them; in the first instance he is the same man who is acting as reeve.

Thenceforward the bishop seems to have been able to keep the demesne land in lease, now one and now another of the copyholders taking it for a term of years: thus under Edward IV it was let for 16 years at a rent of £7. It is always recognised that the subject of this demise comprises “the customs and works of the customary tenants of the lord.” Meanwhile the “Rent of Bond” or “Natives” Land,” which has declined from £22 to about £17, remains constant.

Under Henry VII the situation is but little altered; the bond land brings in its £17, the demesne land £8, the demises of the latter are still described as including “all the works and customs of the customary tenants of the lord.”

The evidence, therefore, seems to point to a great change under Henry V (1413–22). In the last year of Henry IV the rent of bond lands is entered at £11. 5s. 6d.; it is still reckoned that 1056 halfpenny works and 336 penny works are due; many of these are actually done in kind, though some are “sold.” When the accounts begin again under Henry VI the rent of bond lands is £22. 2s. 10d., almost exactly double the old amount, and all the works that are accounted for are 76 diets of ploughing. This change was immediately followed by another—namely, the letting of the demesne—the scitus manerii, as it is sometimes called—together with the benefit of whatever opera remained uncommuted. Whether the commutation under Henry V was originally regarded as more than a temporary or revocable measure does not appear; practically it seems to have been a final step.

Two cases of commutation which occurred in the reign of Henry IV are noticed on the court rolls. J. N., who holds a full land by services and customs, has requested the lord that he may have his land at farm and not for customs and services, and the lord, seeing his weakness and poverty (inopiam et debilitatem) of his special grace has granted that he may hold his land at farm; and upon this comes J. N. and takes the land to hold to him and his by the rod at the will of the lord, according to the custom of the manor, rendering yearly to the lord 20s. rent for all labour services to the said lord belonging, and he gives the lord 2s. The other case is of a similar character: the lord of his special grace grants to J. D. a half-land, to hold to him and his sequela at a rent of 12s. for all services and customs, which land the said J. D. hitherto held by services and customs. It is specially noticed in this case that no fine (gersuma) is taken for this new grant.

Then, as already said, we find that in the first year of Henry VI (1422–3) all the customary tenants are paying money rents. It may be interesting to note the fate of the full lands.

The reeve accounts for 26s. 8d. from John Downham and his fellows for the full land late of John Thorold.

For 13s. 4d. from Andrew Somerset for a half-land.

For 13s. 0d. from Thomas Stoney for a half-land, formerly Pratt's.

For 12s. 0d. from Simon Dauntre and William Philip for a half-land, formerly of Henry in the Lane, demised to them for life.

For 13s. 0d. from John Downham, senior, for a half-land, formerly of Henry Greneleaf.

For 26s. 0d. from the full land called Sewyne's, demised to various tenants.

For 12s. 0d. from Robert Scot for a half-land.

For 12s. 0d. from Robert Newman for a half-land demised to him and his.

For 12s. 0d. from Thomas Downham for a half-land demised to him and his sequela.

For 24s. 0d. from John Newman for a full land.

For 24s. 0d. from John Downham, senior, for the works of a full land recently released to him.

For 24s. 0d. from Andrew Cokayne for the works of a full land recently released to him.

For 24s. 0d. from John Frost for the works of a full land recently released to him.

For 24s. 0d. from John Downham for the works of a full land recently released to him.

For 24s. 0d. from Richard Dony for the works of a full land recently released to him.

For 24s. 0d. from Andrew Frost for the works of a full land recently released to him.

For 24s. 0d. from Andrew Lessy for the works of a full land recently released to him.

For 24s. 0d. from Jacob Frost for the works of a full land recently released to him.

For 24s. 0d. from John Warwick for the works of a full land recently released to him.

Thus the basis of the commutation effected under Henry IV and Henry V seems to have been 24s. for the full land—that is to say, a shilling per acre with the messuage thrown in. During the fourteenth century the lord seems to have been able to obtain a higher rent—namely, 26s. 8d.—for the full land, and 13s. 4d. for the half-land. But even 24s. was too high a rent to be permanently maintained; before the end of Henry VI's reign it had been very generally reduced of 20s., and the total “Rent of Natives’ Land” had fallen from £22 to £17. It might be an anachronism to say that these copyholders of the fifteenth century were paying “rack rents,” but they were paying “the best rents that could reasonably be gotten.”

When once the commutation has been effected and the demesne demised to a farmer, the manorial accounts cease to have any great legal interest. The lord of the manor has, in effect, become a landlord of the modern type. It can be no part of my undertaking to trace the ups and downs of his income; many of its items were now irrevocably fixed, while the rent that could be obtained for the demesne varied from time to time and lease to lease. On the whole his income seems to have fallen. About the years 1428 to 1432 the excess of income over outgo generally amounts to £30 or little less; thirty years later it has fallen to some £25, and it seems never to recover from this fall. An abstract of the account for the year ending Michaelmas 1507 will show how the matter stood at the beginning of another century.

The manor was granted by Bishop Martin Heton to Queen Elizabeth in the forty-second year of her reign (1599–1600). This appears from a survey of 8th Aug. 1609, when the manor was in the hand of King James. Its revenue was then estimated as follows:—

But the surveyor adds, “Ther is yearly allowed and deducted out of the value aforsayde for a decay of rente within the sayde mannor the some of xvij.^s 9^d ob. but whether it may be repayred or not I have noe knowledge.”

A good many of the ancient tenements have still to all appearance kept their shape; they are still held as integral wholes, though several are sometimes in the hand of one man. The full tenement, or “virgate,” still pays in general a rent of 20s.; it consists of a house and curtilage, of twenty-four acres of arable scattered about in the common fields, of a few acres of meadow, and of rights of common of pasture. What is more, it still owes some labour service, the remains, so it would seem, of the old “boon works.” Against the names of several of the tenants, in addition to the amounts of their rents, is set “j. opera seminand’ tritici et alt’ pro seminand’ ordei,” “j. opera tritici alt’ ordei ut supra,” “iiij. opera ut supra,” “4 daye workes cum carucca firmarii,” “iiij. opera cum caruca.” The benefit of these is enjoyed by the farmer (firmarius) of the demesne, of the scitus manerii. But while rents have remained fixed, the annual values of the copyholds, reckoned in money, have in all probability increased enormously. Against each tenement is set not only its rent but what seems to be an estimate of the amount beyond its rent that it might be expected to bring in if let at a rack rent. Thus of one small tenement the rent is 12d., while after this stands ann’ val’ dimittend’ 9s. ultra r—that is, the annual value of it if demised at a full rent is 9s. beyond the rent actually paid; in other words, the actual rent is but a tenth of the possible rack rent. In some cases the virgate which brings in £1 per annum is reckoned as worth £6 or £7 more. Even the demesne seems to be held by the termor on very beneficial terms (probably he has paid a substantial fine); as of old he pays but £8, while the annual value of his tenement seems to be estimated at £66. 13s. 4d. From a copy of the deed whereby King James sold the manor it would seem that he got £1261. 18s. 4d. for it, an absurdly large price if the purchaser was going to get but £33 a year. But whatever the purchaser could get by reletting the demesne or cultivating it himself, the time was past when he could hope to increase his receipts from the “natives’ lands,” and the evidence goes to show that the economic catastrophe of the sixteenth century, the influx of the precious metals, not to mention the debasement of the coinage, had greatly benefited the representatives of the “natives” at the cost of their lord.

At the risk of making this paper intolerably long I must add a few words about the legal status of the villains of Wilburton. There can be no doubt that in the thirteenth century the customary tenants, the holders of the full lands, half-lands, and other tenements, were serfs, nativi. This theory was kept up during the whole of the next century, and was brought home to them in practice. Thus in or about the fiftieth year of Edward III a number of nativi relinquished their lands and fled; for many years afterwards orders were given at every successive court for their recapture.

(1369) Andrew Thorold, a nativus of the lord, dwells at Lindon, Andrew in the Lane at Hidingham, Nicholas Bande at Hempstead, William Coppe at Cottenham; let them be seized and brought to the next court. (1372) Andrew in the Lane, Nicholas Bande, John Thorold and Robert his brother, Andrew Thorold, John and Nicholas, sons of Andrew Frost, nativi domini, are missing and ought to be seized. Such entries as these are found on the rolls of the fifteenth century also. (1467) Several nativi domini dwell at Crowland, Isleham, and elsewhere, and pay no clevage (head money); let them be attached. (1480) A similar entry. In Henry VII's day care is taken to record the fact that certain persons are serfs, and to state the whereabouts of their progeny. (1491) A. C., a native by blood of the lord, dwells on the lord's demesne, and has three sons and one daughter, whose names and ages are stated; J. B., another native, has two sons and one daughter; R. F., another native, has one daughter; another R. F. has a daughter; Agnes D., a nieve, dwells with W. B.; Joan D., a nieve, dwells at Chatteris; Ellen D., a nieve, dwells at Wilburton; let them be attached by their bodies to do fealty to the lord. Such an entry as this suggests that by this time it has become necessary to enumerate the “natives”; it is no longer to be assumed that all holders of customary lands are serfs; the difficulty that there had been of finding tenants had probably brought into the manor a number of outsiders who were not the bishop's born bondmen.

The practical incidents of servility are enforced during the fourteenth century. True that when a serf has once run away he is not recaptured; but there is a good deal of talk about recapturing him, though nothing seems to come of it. The “natives,” however, who remain behind cannot marry their daughters, educate their sons, or sell their beasts without the lord's leave.

(1364) It is presented that H. N. sold a foal of his own increase (de proprio incremento) without the lord's licence; therefore he is amerced. (1367–9) Several similar entries. So in 1384 an amercement for selling foals to strangers without leave of the lord or supervision of the bailiff. (1372) Presentment that Richard Cokaygne has put his son John, aged eight years, to school without the lord's leave; he is amerced in 40d. At a later court Richard is licensed to send his son to school on condition that he does not take any holy orders without the lord's leave, the condition being enforced by a penalty of 100s. (1380) A. L., a nativus of the lord, at the time when he was reeve acquired, without leave of the lord, a messuage and some freeholdland from W. S.; he now makes fine to the lord with 20s., that he may hear no more about this matter (ne occasionetur). (1384) A nativus pays 13s. 4d. for leave to marry a nativa, a widow who holds a full land, and for leave to hold that land jointly with his wife. (1385) Presentment that A. L. married his daughter to R. H., a nativus of the lord; A. L. pays 3s. 4d. that he may hear no more of this (ne occasionetur de maritacione predicta). (1394) J. F., a nativus domini de corpore, pays 18d. for leave to marry his daughter, nativam domini, to J. C., nativo domini; he pays no more because his daughter has been guilty of fornication—comisit leyrwyght—by reason whereof the lord had 5s. These marks of servility seem to disappear in the fifteenth century.

The terminology employed in the earliest surrenders and admittances is not stereotyped. The land is sometimes terra nativa, sometimes terra custumaria, sometimes simply a “full land” or “half-land,” as the case may be. The tenendum is sometimes sibi et suis, sometimes sibi et sequele sue; “secundum consuetudinem manerii “appears at times, and occasionally “ad voluntatem domini.” In Richard II's day, in the case of a grant to a man and his wife, we already find the full form, tenendum J. et M. et heredibus et assignatis eorundem per virgam et ad voluntatem domini secundum consuetudinem manerii faciendo servicia antiqua pro predicto integro cotagio. Thenceforward it is common to mention the rod, the will of the lord, and the custom of the manor; but the phrases “sibi et sequele sue,” “sibi et suis “do not at once give way before “sibi et heredibus suis.” In the middle of the fifteenth century it became common to describe the tenant as holding per copiam.

The conclusions to which these rolls would lead us may now be stated in a summary fashion.

Before 1350 or thereabouts. The lord gets very little by way of money rent. His demesne is cultivated for him by the “works” of his customary tenants. More works are due than are wanted, and each year he “sells” a certain number of works at a customary rate—that is to say, he takes from the person liable to work a penny or, as the case may be, a halfpenny in respect of each work that he does not want. The customary tenants are for the more part, if not altogether, unfree men, and are treated as such.

From 1350 to 1410 or thereabouts. There is as yet no permanent commutation of work for rent. The lord, however, finds the greatest difficulty in keeping old and obtaining new tenants; his tenants, more especially the cottagers, run away and relinquish their tenements. The lord still hopes to obtain tenants on the old terms, but in the meanwhile has to make temporary grants or leases at money rents, and from time to time to reduce those rents. From the tenants who still hold on the old terms he still exacts a considerable number of works, while other works he “sells” to them year by year. Many of the tenants are still unfree, and are treated as such.

After 1410 or thereabouts. It having at last been recognised that many of the tenements are no longer in opere, and that there is no prospect of a return to the old state of things, a general commutation of all works (except some ploughing) takes place. Perhaps this is not at once conceived as a final change, but practically it is irrevocable. The rents are the best rents that the lord can get, and in course of time it is necessary to reduce them. The demesne land, together with the benefit of such works as are uncommuted, is now let, for short terms of years, to a farmer. The lord of the manor becomes, in effect, little more than a receiver of rent. Very few practical traces of personal servitude remain, but we read of no formal emancipation of the bondmen, and the lord is careful to preserve a record of their bondage.

In the sixteenth century. Owing to the fall in the value of money, the copyholder gradually acquires a valuable right in his holding. His rent—less than a shilling an acre—becomes light. I will not generalise, but to me it seems that in this instance the copyholder's vendible interest is almost entirely an unearned increment, the product of American mines.

THE ORIGIN OF USES1

The following account of the origin of our English Use forms part of a projected sketch of English law as it stood at the accession of Edward I. It will there follow some remarks upon the late growth of any doctrine of informal agency, by which I mean an agency which is not solemnly created by a formal attornatio. I have long been persuaded that every attempt to discover the genesis of our use in Roman law breaks down, and I have been led to look for it in another direction by an essay which some years ago Mr Justice Holmes wrote on Early English Equity (Law Quarterly Review, vol. i.). Whether I have been successful, it is not for me to say. I will first state my theory and then adduce my evidence.

The germ of agency is hardly to be distinguished from the germ of another institution which in our English law has an eventful future before it, the “use, trust or confidence.” In tracing its embryonic history we must first notice the now established truth that the English word use when it is employed with a technical meaning in legal documents is derived, not from the Latin word usus, but from the Latin word opus, which in Old French becomes os or oes. True that the two words are in course of time confused, so that if by a Latin document land is to be conveyed to the use of John, the scribe of the charter will write ad opus Johannis or ad usum Johannis indifferently, or will perhaps adopt the fuller formula ad opus et ad usum, nevertheless the earliest history of “the use” is the early history of the phrase ad opus. Now this both in France and in England we may find in very ancient days. A man will sometimes receive money to the use (ad opus) of another person; in particular money is constantly being received for the king's use. Kings must have many ministers and officers who are always receiving money, and we have to distinguish what they receive for their own proper use (ad opus suum proprium) from what they receive on behalf of the king. Further, long before the Norman Conquest we may find a man saying that he conveys land to a bishop to the use of a church, or conveys land to a church to the use of a dead saint. The difficulty of framing a satisfactory theory touching the whereabouts of the ownership of what we may loosely call “the lands of the churches” (a difficulty that I cannot here pause to explain) gives rise to such phrases. In the thirteenth century we commonly find that where there is what to our eyes is an informal agency, this term ad opus is used to describe it. Outside the ecclesiastical sphere there is but little talk of “procuration”; there is no current word that is equivalent to our agent; John does not receive money or chattels “as agent for” Roger; he receives it to the use of Roger (ad opus Rogeri).

Now in the case of money and chattels a certain haziness in the conception of ownership, which I hope to discuss elsewhere, prevents us from making a satisfactory analysis of the notion that this ad opus implies. William delivers two marks or three oxen to John, who receives them to the use of Roger. In whom, we may ask, is the ownership of the coins or of the beasts? Is it already in Roger; or, on the other hand, is it in John, and is Roger's right a merely personal right against John? In the thirteenth century this question does not arise in a clear form, because possession is far more important than ownership. We will suppose that John is the bailiff of one of Roger's manors, that in the course of his business he has gone to a market, has sold Roger's corn, has purchased cattle with the price of the corn and is now driving them home. We take it that if a thief or trespasser swoops down and drives off the beasts, John can bring an appeal or an action and call the beasts his own proper chattels. We take it that he himself cannot steal the beasts; even in the modern common law he cannot steal them until he has in some way put them in his employer's possession. We are not very certain that if he appropriates them to his own use Roger has any remedy except in an action of debt or of account, in which his claim can be satisfied by a money payment. And yet the notion that the beasts are Roger's, not John's, is growing and destined to grow. In course of time the relationship expressed by the vague ad opus will in this region develop into a law of agency. In this region the phrase will appear in our own day as expressing rights and duties which the common law can protect and enforce without the help of any “equity.” The common law will know the wrong that is committed when a man “converts to his use” (ad opus suum proprium) the goods of another; and in course of time it will know the obligation which arises when money is “had and received to the use” of some person other than the recipient.

It is otherwise in the case of land, for there our old law had to deal with a clearer and intenser ownership. But first we must remark that at a very remote period one family at all events of our legal ancestors have known what we may call a trust, a temporary trust, of lands. The Frank of the Lex Salica is already employing it; by the intermediation of a third person, whom he puts in seisin of his land and goods, he succeeds in appointing or adopting an heir. Along one line of development we may see this third person, this “saleman,” becoming the testamentary executor of whom this is not the place to speak; and our English law by forbidding testamentary dispositions of land has prevented us from obtaining many materials in this quarter. However, in the England of the twelfth century we sometimes see the lord intervening between the vendor and the purchaser of land. The vendor surrenders the land to the lord “to the use” of the purchaser by a rod, and the lord by the same rod delivers the land to the purchaser. Freeholders, it is true, have soon acquired so large a liberty of alienation that we seldom read of their taking part in such surrenders; but their humbler neighbours, for instance, the king's sokeman, are constantly surrendering land “to the use” of one who has bought it. What if the lord when the symbolic stick was in his hand refused to part with it? Perhaps the law had never been compelled to consider so rare an event; and in these cases the land ought to be in the lord's seisin for but a moment. However, we soon begin to see what we cannot but call permanent “uses.” A slight but unbroken thread of cases, beginning while the Conquest is yet recent, shows us that a man will from time to time convey his land to another “to the use” of a third. For example, he is going on a crusade, and wishes that his land shall be held to the use of his children, or he wishes that his wife or his sister shall enjoy the land, but doubts, it may be, whether a woman can hold a military fee or whether a husband can enfeoff his wife. Here there must be at the least an honourable understanding that the trust is to be observed, and there may be a formal “interposition of faith.” Then, again, we see that some of the lands and revenues of a religious house have often been devoted to some special object; they have been given to the convent “to the use” of the library or “to the use” of the infirmary, and we can hardly doubt that a bishop will hold himself bound to provide that these dedications, which are sometimes guarded by the anathema, shall be maintained. Lastly, in the early years of the thirteenth century the Franciscan friars came hither. The law of their being forbade them to own anything; but they needed at least some poor dormitory, and the faithful were soon offering them houses in abundance. A remarkable plan was adopted. They had come as missionaries to the towns; the benefactor who was minded to give them a house, would convey that house to the borough community “to the use of” or “as an habitation for” the friars. Already when Bracton was writing, a considerable number of plots of land in London had been thus conveyed to the city for the benefit of the Franciscans. The corporation was becoming a trustee. It is an old doctrine that the inventers of “the use” were “the clergy” or “the monks.’ We should be nearer the truth if we said that to all seeming the first persons who in England employed “the use” on a large scale were, not the clergy, nor the monks, but the friars of St Francis.

Now in few, if any, of these cases can the ad opus be regarded as expressing the relation which we conceive to exist between a principal and an agent. It is intended that the “feoffee to uses” (we can employ no other term to describe him), shall be the owner or legal tenant of the land, that he shall be seised, that he shall bear the burdens incumbent on owners or tenants, but he is to hold his rights for the benefit of another. Such transactions seem to have been too uncommon to generate any definite legal theory. Some of them may have been enforced by the ecclesiastical courts. Assuredly if the citizens of London had misappropriated the lands conveyed to them for the use of the friars, those darlings of popes and kings, they would have known what an interdict meant. Again, in some cases the feoffment might perhaps be regarded as a “gift upon condition,” and in others a written agreement about the occupation of the land might be enforced as a covenant. But at the time when the system of original writs was taking its final form “the use” had not become common enough to find a comfortable niche in the fabric. And so for a while it lives a precarious life until it finds protection in the “equitable” jurisdiction of the chancellors. If in the thirteenth century our courts of common law had already come to a comprehensive doctrine of contract, if they had been ready to draw an exact line of demarction between “real” and “personal” rights, they might have reduced “the use” to submission and found a place for it in their scheme of actions; in particular, they might have given the feoffor a personal, a contractual, action against the feoffee. But this was not quite what was wanted by those who took part in these transactions; it was not the feoffor, it was the person whom he desired to benefit (the cestui que use of later days) who required a remedy, and moreover a remedy that would secure him not money compensation but the specific enjoyment of the thing granted. “The use” seems to be accomplishing its manifest destiny when at length after many adventures it appears as “equitable ownership.”

I will now put in some of the evidence that I have collected:—

I. The employment of the phrase ad opus meum (tuum, suum) as meaning on my (your, his) behalf, or for my (your, his) profit or advantage can be traced back into very early Frankish formulas. See Zeumer's quarto edition of the Formulae Merovingici et Karolini Aevi (Monumenta Germaniae), index s.v. opus. Thus, e.g.:—

p. 115 “ut nobis aliquid de silva ad opus ecclesiae nostrae...dare iubeatis.” (But here opus ecclesiae may mean the fabric of the church.)

p. 234 “per quem accepit venerabilis vir ille abbas ad opus monasterio suo [=monasterii sui]....masas ad commanendum.”

p. 208 “ad ipsam iam dictam ecclesiam ad opus sancti illius.... dono.”

p. 315 (An emperor is speaking) “telonium vero, excepto ad opus nostrum inter Q et D vel ad C [place names] ubi ad opus nostrum decima exigitur, aliubi eis ne requiratur.”

II. So in Carolingian laws for the Lombards. Mon. Germ. Leges, IV. Liber Papiensis Pippini 28 (p. 520): “De compositionibus quae ad palatium pertinent: si comites ipsas causas convenerint ad requirendum, illi tertiam partem ad eorum percipiant opus, duos vero ad palatium.” (The comes gets “the third penny of the county” for his own use.)

Lib. Pap. Ludovici Pii 40 (p. 538): “Ut de debito quod ad opus nostrum fuerit wadiatum talis consideratio fiat.”

III. From Frankish models the phrase has passed into AngloSaxon land-books. Thus, e.g.:—

Coenulf of Mercia, A.D. 809, Kemble, Cod. Dipl. v. 66: “Item in alio loco dedi eidem venerabili viro ad opus praefatae Christi ecclesiae et monachorum ibidem deo servientium terram...”

Beornwulf of Mercia, A.D. 822, Kemble, Cod. Dipl. v. 69: “Rexdedit ecclesiae Christi et Wulfredo episcopo ad opus monachorum....villam Godmeresham.”

IV. It is not uncommon in Domesday Book. Thus, e.g.:—

D. B. I. 209: “Inter totum reddit per annum xxii. libras...ad firmam regis....Ad opus reginae duas uncias auri...et i. unciam auri ad opus vicecomitis per annum.”

D.B.I. 60 b:“Duae hidae non geldabant quia de firma regis erant et ad opus regis calumniatae sunt.”

D. B. II. 311:“Soca et saca in Blideburh ad opus regis et comitis.”

V. A very early instance of the French al os occurs in Leges Willelmi, I. 2. §3: “E cil francs hom...seit mis en forfeit el cuné afert al os le vescunte en Denelahe xl. ores....De ces xxxii ores averad le vescunte al os le rei x. ores.” The sheriff takes certain sums for his own use, others for the king's use. This document can hardly be of later date than the early years of cent. xii.

VI. In order to show the identity of opus and os or oes we may pass to Britton, II. 13: “Villenage est tenement de demeynes de chescun seignur baillé a tenir a sa volunté par vileins services de emprouwer al oes le seignur.”

VII. A few examples of the employment of this phrase in connection with the receipt of money or chattels may now be given.

Liberate Roll 45 Hen. III (Archaeologia, XXVIII. 269): Order by the king for payment of 600 marks which two Florentine merchants lent him, to wit, 100 marks for the use (ad opus) of the king of Scotland and 500 for the use of John of Brittanny.

Liberate Roll 53 Hen. III (Archaeologia, XXVIII. 271): Order by the king for payment to two Florentines of money lent to him for the purpose of paying off debts due in respect of cloth and other articles taken “to our use (ad opus nostrum)” by the purveyors of our wardrobe.

Bracton's Note Book, pl. 177 (A.D. 1222): A defendant in an action of debt confesses that he has received money from the plaintiff, but alleges that he was steward of Roger de C. and received it ad opus eiusdem Rogeri. He vouches Roger to warranty.

Selby Coucher Book, II. 204 (A.D. 1285): “Omnibus.... R. de Y. ballivus domini Normanni de Arcy salutem. Noveritis me recepisse duodecim libras...de Abbate de Seleby ad opus dicti Normanni, in quibus idem Abbas ei tenebatur..... Et ego....dictum abbatem...versus dominum meum de supradicta pecunia indempnem conservabo et adquietabo.”

Y. B. 21–2 Edw. I, p. 23: “Richard ly bayla les chateus a la oeus le Eveske de Ba.”

Y. B. 33–5 Edw. I, p. 239: “Il ad conté qe eux nous livererent meyme largent al oes Alice la fille B.”

VIII. We now turn to cases in which land is concerned:—

Whitby Cartulary, I. 203–4 (middle of cent. xii.): Roger Mowbray has given land to the monks of Whitby; in his charter he says “Reginaldus autem Puer vendidit ecclesiae praefatae de Wyteby totum ius quod habuit in praefata terra et reliquit michi ad opus illorum, et ego reddidi eis, et saisivi per idem lignum per quod et recepi illud.”

Burton Cartulary, p. 21, from an “extent” which seems to come to us from the first years of cent. xii.: “tenet Godfridus viii. bovatae [corr. bovatas] pro viii. sol. praeter illam terram quae ad ecclesiam iacet quam tenet cum ecclesia ad opus fratris sui parvuli, cum ad id etatis venerit ut possit et debeat servire ipsi ecclesiae.”

Ramsey Cartulary, II. 257–8, from a charter dated by the editors in 1080–7: “Hanc conventionem fecit Eudo scilicet Dapifer Regis cum Ailsio Abbate Rameseiae....de Berkeforde ut Eudo habere deberet ad opus sororis suae Muriellae partem Sancti Benedicti quae adiacebat ecclesiae Rameseiae quamdiu Eudo et soror eius viverent, ad dimidium servitium unius militis, tali quidem pacto ut post Eudonis sororisque decessum tam partem propriam Eudonis quam in eadem villa habuit, quam partem ecclesiae Rameseiae, Deo et Sancto Benedicto ad usum fratrum eternaliter....possidendam.....relinqueret.” In D. B. 1. 210 b, we find “In Bereforde tenet Eudo dapifer v. hidas de feodo Abbatis [de Ramesy].” So here we have a “Domesday tenant” as “feoffee to uses.”

Ancient Charters (Pipe Roll Soc. p. 21) (circ.A.D. 1127); Richard Fitz Pons announces that having with his wife's concurrence disposed of her marriage portion, he has given other lands to her; “et inde saisivi Milonem fratrem eius loco ipsius ut ipse eam manuteneat et ab omni defendat iniuria.”

Curia Regis Roll No. 81, Trin. 6 Hen. III, m. I d. Assize of mort d’ancestor by Richard de Barre on the death of his father William against William's brother Richard de Roughal for a rent. Defendant alleges that William held it in custodia, having purchased it to the use of (ad opus) the defendant with the defendant's money. The jurors say that William bought it to the use of the defendant, so that William was seised not in fee but in wardship (custodia). An attempt is here made to bring the relationship that we are examining under the category of custodia.

Bracton's Note Book, pl. 999 (A.D. 1224): R, who is going to the Holy Land, commits his land to his brother W to keep to the use of his (R's) sons (commisit terram illam W ad opus puerorum suorum); on R's death his eldest son demands the land from W, who refuses to surrender it; a suit between them in a seignorial court is compromised; each of them is to have half the land.

Bracton's Note Book, pl. 1683 (A.D. 1225): R is said to have bought land from G to the use of the said G. Apparently R received the land from G on the understanding that he (R) was to convey it to G and the daughter of R (whom G was going to marry) by the way of a marriage portion.

Bracton's Note Book, pl. 1851 (A.D. 1226–7): A man who has married a second wife is said to have bought land to the use of this wife and the heirs of her body begotten by him.

Bracton's Note Book, pl. 641 (A.D. 1231): It is asserted that E impleaded R for certain lands, that R confessed that the land was E's in consideration of 12 marks, which M paid on behalf of E, and that M then took the land to the use (ad opus) of E. Apparently M was to hold the land in gage as security for the 12 marks.

Bracton's Note Book, pl. 754 (A.D. 1233): Jurors say that R desired to enfeoff his son P, an infant seven years old; he gave the land in the hundred court and took the child's homage; he went to the land and delivered seisin; he then committed the land to one X to keep to the use of P (ad custodiendum ad opus ipsius Petri) and afterwards he committed it to Y for the same purpose; X and Y held the land for five years to the use of P.

Bracton's Note Book, pl. 1244 (A.D. 1238–9): A woman, mother of H, desires a house belonging to R; H procures from R a grant of the house to H to the use (ad opus) of his mother for her life.

Assize Roll No. 1182, m. 8 (one of Bracton's Devonshire rolls): “Iuratores dicunt quod idem Robertus aliquando tenuit hundredum illud et quod inde cepit expleta. Et quaesiti ad opus cuius, utrum ad opus proprium vel ad opus ipsius Ricardi, dicunt quod expleta inde cepit, sed nesciunt utrum ad opus suum proprium vel ad opus ipsius Ricardi quia nesciunt quid inde fecit.”

Chronicon de Melsa, II. 116 (an account of what happened in the middle of cent. xiii. compiled from charters): Robert confirmed to us monks the tenements that we held of his fee; “et insuper duas bovatas cum uno tofto...ad opus Ceciliae sororis suae et heredum suorum de corpore suo procreatorum nobis concessit; ita quod ipsa Cecilia ipsa toftum et ii. bovatas terrae per forinsecum servitium et xiv. sol. et iv. den. annuos de nobis teneret. Unde eadem toftum et ii. bovatas concessimus dictae Ceciliae in forma praescripta.”

IX. The lands and revenues of a religious house were often appropriated to various specific purposes, e.g. ad victum monachorum, ad vestitum monachorum, to the use of the sacrist, cellarer, almoner or the like, and sometimes this appropriation was designated by the donor. Thus, e.g. Winchcombe Landboc, I. 55, “ad opus librorum”; I. 148, “ad usus infirmorum monachorum”; I. 73, certain tithes are devoted “in usum operationis ecclesiae,” and in 1206 this devotion of them is protected by a ban pronounced by the abbot; only in case of famine or other urgent necessity may they be diverted from this use. So land may be given “to God and the church of St German of Selby to buy eucharistic wine (ad vinum missarum emendum)”; Selby Coucher, II. 34.

In the ecclesiastical context just mentioned usus is a commoner term than opus. But the two words are almost convertible. On Curia Regis Roll No. 115 (18–9 Hen. III), m. 3 is an action against a royal purveyor. He took some fish ad opus Regis and converted it in usus Regis.

X. In the great dispute which raged between the archbishops of Canterbury and the monks of the cathedral monastery one of the questions at issue was whether certain revenues, which undoubtedly belonged to “the church” of Canterbury, had been irrevocably devoted to certain specific uses, so that the archbishop, who was abbot of the house, could not divert them to other purposes. In 1185 Pope Urban III pronounces against the archbishop. He must restore certain parochial churches to the use of almonry. “Ecclesiae de Estreia et de Munechetun...ad usus pauperum provide deputatae fuissent, et a...praedecessoribus nostris eisdem usibus confirmatae...Monemus quatenus....praescriptas ecclesias usibus illis restituas.” So the prior and convent are to administer certain revenues which are set apart “in perpetuos usus luminarium, sacrorum vestimentorum et restaurationis ipsius ecclesiae, et in usus hospitum et infirmorum.” At one stage in the quarrel certain representatives of the monks in the presence of Henry II received from the archbishop's hand three manors “ad opus trium obedientiariorum, cellerarii, camerarii et sacristae.” See Epistolae Cantuarienses, pp. 5, 38, 95.

XI. We now come to the very important case of the Franciscans.

Thomas of Eccleston, De adventu Fratrum Minorum (Monumenta Franciscana, I.), p. 16: “Igitur Cantuariae contulit eis aream quandam et aedificavit capellam..... Alexander magister Hospitalis Sacerdotum; et quia fratres nihil omnino appropriare sibi voluerunt, facta est communitati civitatis propria, fratribus vero pro civium libitu commodata...... Londoniae autem hospitatus est fratres dominus Johannes Ywim, qui emptam pro fratribus aream communitati civium appropriavit, fratrum autem usumfructum eiusdem pro libitu dominorum devotissime designavit.... Ricardus le Muliner contulit aream et domum communitati villae [Oxoniae] ad opus fratrum.” This account of what happened in or about 1225 is given by a contemporary.

Prima Fundatio Fratrum Minorum Londoniae (Monumenta Franciscana, I.), p. 494. This document gives an account of many donations of land made to the city of London in favour of the Franciscans. The first charter that it states is one of 1225, in which John Iwyn says that for the salvation of his soul he has given a piece of land to the communitas of the city of London in Frankalmoin “ad inhospitandum [a word missing] pauperes fratres minorum [minores?] quamdiu voluerint ibi esse.”

XII. The attempt of the early Franciscans to live without property of any sort or kind led to subtle disputations and in the end to a world-shaking conflict. At one time the popes sought to distinguish between ownership and usufruct or use; the Franciscans might enjoy the latter but could not have the former; the dominium of all that was given to their use was deemed to be vested in the Roman church and any litigation about it was to be carried on by papal procurators. This doctrine was defined by Nicholas III in 1279. In 1322 John XXII did his best to overrule it, declaring that the distinction between use and property was fallacious and that the friars were not debarred from ownership. Charges of heresy about this matter were freely flung about by and against him, and the question whether Christ and His Apostles had owned goods became a question between Pope and Emperor, between Guelph and Ghibelline. In the earlier stages of the debate there was an instructive discussion as to the position of the third person, who was sometimes introduced as an intermediary between the charitable donor and the friars who were to take the benefit of the gift. He could not be treated as agent or procurator for the friars unless the ownership was ascribed to them. Gregory IX was for treating him as an agent for the donor. See Lea, History of the Inquisition, III. 5–7, 29–31, 129–154.

XIII. It is very possible that the case of the Franciscans did much towards introducing among us both the word usus and the desire to discover some expedient which would give the practical benefits of ownership to those who could yet say that they owned nothing. In every large town in England there were Minorites who knew all about the stormy controversy, who had heard how some of their foreign brethren had gone to the stake rather than suffer that the testament of St Francis should be overlaid by the evasive glosses of lawyerly popes, and who were always being twitted with their impossible theories by their Dominican rivals. On the continent the battle was fought with weapons drawn from the armoury of Roman law. Among these were usus and usufructus. It seems to have been thought at one time that the case could be met by allowing the friars a usufructus or usus, these terms being employed in a sense that would not be too remote from that which they had borne in the old Roman texts. Thus it is possible that there was a momentary contact between Roman law—mediaeval, not classical, Roman law—and the development of the English use. Englishmen became familiar with an employment of the word usus which would make it stand for something that just is not, though it looks exceedingly like, dominium. But we hardly need say that the use of our English law is not derived from the Roman “personal servitude”; the two have no feature in common. Nor can I believe that the Roman fideicommissum has anything to do with the evolution of the English use. In the first place, the English use in its earliest stage is seldom, if ever, the outcome of a last will, while the fideicommissum belongs essentially to the law of testaments. In the second place, if the English use were a fideicommissum it would be called so, and we should not see it gradually emerging out of such phrases as ad opus and ad usum. What we see is a vague idea, which developing in one direction becomes what we now know as agency and developing in another direction becomes that use which the common law will not, but equity will, protect. Of course, again, our “equitable ownership” when it has reached its full stature has enough in common with the praetorian bonorum possessio to make a comparison between the two instructive; but an attempt to derive the one from the other would be too wild for discussion.

OUTLINES OF ENGLISH LEGAL HISTORY, 560—16001

[1]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.

[2]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.

[1]“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.

[1]R. H. II. 688; and see 703, where the manor of Shifford appears. A correcter transcript is given by Vinogradoff, Villainage, p. 450.

[2]The title is traced in Archaeologia, XXXIII. 270.

[3]It is difficult to discover from the record which of the virgates mentioned in it are in the Aston fields.

[1]Williams, Rights of Common, p. 87. “The hundred and manor of Bampton, which comprised all those three several manors, was a superior lordship.”

[1]D. B. I. 154 b.

[2]P. Q. W. 664.

[3]P. Q. W. 668; Giles, History of Bampton, p. 128.

[4]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.”

[1]R. H. II. 690.

[2]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.

[1]Besides this Aston there are at least three others in Oxfordshire—North Aston, Steeple Aston, and Aston Rowant.

[1]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.

[1]English Historical Review, July, 1894.

[1]MS. Cott. Tib. B. 2; Claud. C. II.

[2]Report and Communications, 1887, p. 162.

[1]As it seemed that in 1277 the bishop was exacting from the Wilburton tenants a greater amount of “week work” than he exacted in 1221, I looked through some of the extents of other manors given in the two Cottonian manuscripts, and I found the same phenomenon at Lyndon, Stretham, and Thriplow. Apparently in all these cases the bishop had put on an extra work-day in every week between Michaelmas and Hoketide—and this in the thirteenth century. These Ely extents ought to be printed as soon as possible.

[1]I can only read the word thus.

[1]Harvard Law Review, 1894.

[1]Social England, ed. H. D. Traill. Cassell & Co., 1893.