Villainage in England Part 17

The characteristic mixture of different elements which we notice in the criminal jurisdiction of the manorial court may be seen also if we examine its civil jurisdiction. We find the halimot treating in its humble region all the questions of law which may be debated in the courts of common law. Seisin, inheritance, dower, leases, and the like are discussed, and the pleading, though subject to the custom of the manor, takes very much the shape of the contentions before the royal judges. Now this civil litigation is interesting from two points of view: it involves statements of law and decisions as to the relative value of claims. In both respects the parties have to refer to the body of the court, to its a.s.sessors or suitors. The influence of the 'country' on the judgment goes further here than in the Common Law Courts, because there is no independent common law to go by, and the custom of the manor has generally to be made out by the manorial tenants themselves. And so a party 'puts himself on his country,' not only in order to decide some issue of fact, but also in regard to points of customary law. Inquisitions are made and juries formed quite as much to establish the jurisprudence of the court as to decide who has the better claim under the said jurisprudence. Theoretically it is the full court which is appealed to, but in ordinary cases the decision rests with a jury of twelve, or even of six. The authority of such a verdict goes back however to the supposed juridical sense or juridical knowledge of the court as a body. Now it cannot be contested that such an organisation of justice places all the weight of the decision with the body of the suitors as a.s.sessors. The presiding officer and the lord whom he represents have not much to do in the course of the deliberation. If we may take up the comparison which Mr. Maitland has drawn with German procedure[812], we shall say that the 'Urtheilfinder'

have all the best of it in the trial as against the 'Richter.' This 'Richter' is seemingly left with the duties of a chairman, and the formal right to draw up and p.r.o.nounce a decision which is materially dependent on the ruling of the court. But a special reserve of equity is left with the lord, and in consequence of its operation we find some decisions and sentences altered, or their execution postponed[813]. I have to endorse one more point of Mr. Mainland's exposition, namely, his view of the presentment system as of a gradual modification of the original standing of the manorial suitors as true a.s.sessors of the court. Through the influence of the procedure of royal courts, on the one hand, of the stringent cla.s.sifications of the tenantry in regard to status on the other, the presenters were gradually debased, and legal learning came to maintain that the only judge of a customary court was its steward. But a presentment of the kind described in the manorial rolls vouches for a very independent position of the suitors, and indeed for their prevalent authority in the const.i.tution of the tribunal.

[Surrender and admittance.]

The conveyancing entries, although barren and monotonous at first sight, are very important, in so far as they show, better perhaps than anything else, the part played by the community and by its testimony in the transmission of rights. It has become a common-place to argue that the practice of surrender and admittance characterises the absolute owners.h.i.+p that the lord has in the land held in villainage, and proceeds from the fact that every holder of servile land is in truth merely an occupier of the plot by precarious tenure. Every change of occupation has to be performed through the medium of the lord who 're-enters' the tenement, and concedes it again as if there had been no previous occupation at all and the new tenant entered on a holding freshly created for his use. None the less, a theory which lays all the stress in the case on the surrender into the hand of the lord, and explains this act from the point of view of absolute owners.h.i.+p, is wrong in many respects.

[Meaning of surrender.]

To begin with the legal transmission of a free holding, although the element of surrender has as it were evaporated from it, it is quite as much bound up with the fiction of the absolute owners.h.i.+p of the lord as is the surrender and admittance of villains and copyholders. The ceremony of invest.i.ture had no other meaning but that of showing that the true owner re-entered into the exercise of his right, and every act of homage for land was connected with an act of feoffment which, though obligatory, first by custom and then by law, was nevertheless no mere pageant, because it gave rise to very serious claims of service and casual rights in the shape of wards.h.i.+p, marriage, and the like. The king who wanted to be everybody's heir was much too consequent an exponent of the feudal doctrine, and his successors were forced into a gentler practice. But the fiction of higher owners.h.i.+p was lurking behind all these contentions of the upper cla.s.s quite as much as behind the conveyancing ceremonies of the manorial court. And in both cases the fiction stretched its standard of uniformity over very different elements: allodial owners.h.i.+p was modified by a subjection to the 'dominium dir.e.c.t.u.m,' on the one hand; leases and precarious occupation were crystalised into tenure, on the other. It is not my object to trace the parallel of free and peasant holding in its details, but I lay stress on the principle that the privileged tenure involved the notion of a personal concession quite as much as did the base tenure, and that this fundamental notion made itself felt both in conveyancing formalities and in practical claims.

[The rod and the festuca.]

I am even inclined to go further: it seems to me that the manorial ceremony of surrender and admittance, as considered from the point of view of legal archaeology, may have gone back to a practice which has nothing to do with the lord's owners.h.i.+p, although it was ultimately construed to imply this notion. The tenant enfeoffed of his holding on the conditions of base tenure was technically termed tenant by copy of court roll or tenant by the rod--_par la verge_. This second denomination is connected with the fact that, in cases of succession as well as in those of alienation, the holding pa.s.sed by the ceremonial action of the steward handing a rod to the person who was to have the land. Now, this formality looks characteristic enough; it is exactly the same as the action of the 'salman' in Frankish law where the transmission of property is effected by the handing of a rod called 'festuca.' The important point is, that the 'salman' was by no means a representative of lords.h.i.+p or owners.h.i.+p, but the necessary middleman prescribed by customary law, in order to give the transaction its consecration against all claims of third persons. The Salic law, in its t.i.tle 'de affatomire,' presents the ceremony in a still earlier stage: when a man wants to give his property to another, he has to call in a middleman and witnesses; into the hands of this middleman he throws a rod to show that he relinquishes all claim to the property in question.

The middleman then behaves as owner and host, and treats the witnesses to a meal in the house and on the land which has been entrusted to him.

The third and last act is, that this intermediate person pa.s.ses on the property to the donee designated by the original owner, and this by the same formal act of throwing the rod[814]. The English practice has swerved from the original, because the office of the middleman has lapsed into the hands of the steward. But the characteristic handing of the rod has well preserved the features of the ancient 'laisuwerpitio'

('the throwing on to the bosom'), and, indeed, it can hardly be explained on any other supposition but that of a survival of the practice. I beg the reader to notice two points which look decisive to me: the steward when admitting a tenant does not use the rod as a symbol of his authority, because he does not keep it--he gives it to the person admitted. Still more, in the surrender the rod goes from the peasant-holder to the steward. Can there be a doubt that it symbolises the plot of land, or rather the right over the plot, and that in its pa.s.sage from hand to hand there is nothing to show that the steward as middleman represents absolute owners.h.i.+p, while the peasants at both ends are restricted to mere occupation on sufferance[815]? Is it necessary to explain that these ceremonial details are not trifles from a historical point of view? Their arrangement is not a matter of chance but of tradition, and if later generations use their symbols mechanically, they do not invent them at haphazard. Symbols and ceremonies are but outward expressions of ideas, and therefore their combinations are ruled by a certain logic and are instinct with meaning.

In a sense their meaning is deeper and more to be studied than that supplied by theories expressed in so many words: they give an insight into a more ancient order of things. It may be asked, in conclusion, why a Frankish form should be found prevalent in the customary arrangement of the English manorial system? The fact will hardly appear strange when we consider, firstly, that the symbolical acts of invest.i.ture and conveyancing were very similar in Old English and Old Frankish law[816], and that many practices of procedure were imported into England from France, through the medium of Normandy. It is impossible at the present date to trace conclusively the ceremonies of surrender and admittance in all their varieties and stages of development, but the most probable course of progress seems to have been a pa.s.sage from symbolical invest.i.ture in the folk-law of free English ceorls through the Frankish practice of 'affatomire,' to the feudal ceremony of surrender and admittance by the steward.

[The court roll.]

And now let us take up the second thread of our inquiry into the manorial forms of conveyancing. A tenant by the verge is also a tenant by copy of court roll. The steward who presided at the court had to keep a record of its proceedings, and this record had a primary importance for the servile portion of the community. While the free people could enter into agreements and perform legal acts in their own name and by charter, the villains had to content themselves with ceremonial actions before the court. They were faithful in this respect to old German tradition, while the privileged people followed precedents which may be ultimately traced to a Roman origin. The court roll or record of manorial courts enabled the base tenant to show, for instance, that some piece of land was his although he had no charter to produce in proof of his contention. And we find the rolls appealed to constantly in the course of manorial litigation[817]. But the rolls were nothing else than records of actions in the court and before the court. They could actually guide the decision, but their authority was not independent; it was merely derived from the authority of the court. For this reason the evidence of the rolls, although very valuable, was by no means indispensable. A claimant could go past them to the original fount, that is, to the testimony of the court. And here we must keep clear of a misconception suggested by a first-sight a.n.a.lysis of the facts at hand.

It would seem that the verdict of neighbours, to which debateable claims are referred to in the manorial courts, stands exactly on a par with the verdicts of jurymen taken by the judges of the Royal Courts. This is not so, however. It is true that the striving of manorial officers to make the procedure of halimotes as much like the common law procedure as possible, went far to produce similarity between forms of actions, presentments, verdicts and juries, in both sets of tribunals. But nevertheless, characteristic distinctions remained to show that the import of some inst.i.tutions brought near each other in this way was widely different. I have said already that the peasant suitors of the halimote are appealed to on questions of law as well as on questions of fact. But the most important point for our present purpose is this: the jurors called to substantiate the claim of a party in a trial are mere representatives of the whole court. The testimony of the court is taken indirectly through their means, and very often resort is had to that testimony without the intermediate stage of a jury. Now this is by no means a trifle from the point of view of legal a.n.a.lysis. The grand and petty juries of the common law are means of information, and nothing more. They form no part of the tribunal, strictly speaking; the court is const.i.tuted by the judges, the lawyers commissioned by the king, who adopt this method in investigating the facts before them, because a knowledge of the facts at issue, and an understanding of local conditions surrounding them, is supposed to reside naturally in the country where the facts have taken place[818]. Historically the inst.i.tution is evolved from examinations of witnesses and experts, and has branched off in France into the close formalism of inquisitorial process. The manorial jury, on the other hand, represents the court, and interchanges with it[819]. For this reason, we may speak directly of the court instead of treating of its delegates. And if the verdict of the court is taken, it is not on account of the chance knowledge, the presumable acquaintance of the suitors with facts and conditions, but as a living remembrance of what took place before this same court, or as a re-a.s.sertion of its power of regulating the legal standing of the community. The verdict of the suitors is only another form of the entry on the rolls, and both are means of securing the continuity of an inst.i.tution and not merely of providing information to outsiders. Of course, claims may not be always reduced to such elementary forms that they can be decided by a mere reference to memory, the memory of the const.i.tuted body of the court. A certain amount of reasoning and inference may be involved in their settlement, a set of juridical doctrines is necessary to provide the general principles of such reasoning. And in both respects the manorial court is called upon to act. It is considered as the repository of legal lore, and the exponent of its applications. This means that the court is, what its name implies, a tribunal and not a set of private persons called upon to a.s.sist a judge by their knowledge of legal details or material facts[820].

[Communal testimony.]

The whole exposition brings us back to a point of primary importance.

The t.i.tle by which land is held according to manorial custom is derived from communal authority quite as much as from the lord's grant. Without stepping out of the feudal evidence into historical inquiry, we find that civil arrangements of the peasantry are based on acts performed through the agency of the steward, and before the manorial court, which has a voice in the matter and vouches for its validity and remembrance.

The 'full court' is noticed in the records as quite as necessary an element in the conveyancing business as the lord and his steward, although the legal theory of modern times has affected to take into account only these latter[821]. Indeed, it is the part a.s.sumed by the court which appears as the distinctive, if not the more important factor. A feoffment of land made on the basis of free tenure proceeds from the grantor in the same way as a grant on the conditions of base tenure; freehold comes from the lord, as well as copyhold. But copyhold is necessarily transferred in court, while freehold is not. And if we speak of the presentment of offences through the representatives of towns.h.i.+ps, as of the practice of communal accusation, even so we have to call the t.i.tle by which copyhold tenure is created a claim based on communal testimony.

[Courts on the ancient demesne.]

All the points noticed in the rolls of manors held at common law are to be found on the soil of ancient demesne, but they are stated more definitely there, and the rights of the peasant population are a.s.serted with greater energy. Our previous a.n.a.lysis of the condition of ancient demesne has led us to the conclusion, that it presents a crystallisation of the manorial community in an earlier stage of development than in the ordinary manor, but that the const.i.tutive elements in both cases are exactly the same. For this reason, every question arising in regard to the usual arrangements ought to be examined in the light of the evidence that comes from the ancient demesne.

We have seen that it would be impossible to maintain that originally the steward was the only judge of the manorial tribunal; the whole court with its free and unfree suitors partic.i.p.ates materially in the administration of justice, and its office is extended to questions of law as well as to issues of fact. On the other hand, it was clear that the steward and the lord were already preparing the position which they ultimately a.s.sumed in legal theory, that in the exercise of their functions they were beginning to monopolise the power of ultimate decision and to restrict the court to the duty of preliminary presentment. The same parties are in presence in the court of ancient demesne, but the right of the suitors has been summed up by legal theory in quite the opposite direction. The suitors are said to be the judges there; legal dogmatism has set up its hard and fast definitions, and drawn its uncompromising conclusions as if all the historical facts had always been arrayed against each other without the possibility of common origins and gradual development. Is it necessary to say that the historical reality was very far from presenting that neat opposition?

The ancient demesne suitors are villains in the main, though privileged in many respects, and the lord and steward are not always playing such a subordinate part that one may not notice the transition to the state of things that exists in common law manors. It is curious, anyhow, that later jurisprudence was driven to set up as to the ancient demesne court a rule which runs exactly parallel to the celebrated theory that there must be a plurality of free tenants to const.i.tute a manor. c.o.ke expresses it in the following way: 'There cannot be ancient demesne unless there is a court and suitors. So if there be but one suitor, for that the suitors are the judges, and therefore the demandant must sue at common law, there being a failure of justice within the manor[822].' We shall have to speak of this rule again when treating of cla.s.ses in regard to manorial organisation. But let us notice, even now, that in this view of the ancient demesne court the suitors are considered as the cardinal element of its const.i.tution. The same notion may be found already in trials of the fourteenth and even of the thirteenth century.

A curious case is reported in the Year Books of 11/12 Edw. III[823].

Herbert of St. Quentyn brought a writ of false judgment against John of Batteley and his wife, the judgment having been given in the court of Cookham, an ancient demesne manor. The suitors, or suit-holders as they were called there, sent up their record to the King's Bench, and many things were brought forward against the conduct of the case by the counsel for the plaintiff, the defendant trying to s.h.i.+eld himself by pleading the custom of the manor to account for all unusual practices.

The judges find, however, that one point at least cannot be defended on that ground. The suitors awarded default against the plaintiff because he had not appeared in person before them, and had sent an attorney, who had been admitted by the steward alone and not in full court. Stonor, C.J., remarks, 'that it is against law that the person who holds the court is not suffered to record an attorney for a plea which will be discussed before him.' The counsel for the plaintiff offer to prove that the custom of the manor did not exclude an attorney appointed before the steward, on condition that the steward should tell it to the suitors in the next court after receiving him. The case is interesting, not merely because it exhibits the suit-holders in the undisputed position of judges, but also because it shows the difficulties created by the presence of the second element of the manorial system, the seignorial element, which would neither fit exactly into an entirely communal organisation nor be ousted from it[824]. The difficulty stands quite on the same line with that which meets us in the common law manor, where the element of the communal a.s.sessors has been ultimately suppressed and conjured away, as it were, by legal theory. The results are contradictory, but on the same line, as I say. And the more we go back in time, the more we find that both elements, the lord and the community, are equally necessary to the const.i.tution of the court. In the thirteenth century we find already that the manorial bailiffs are made responsible for the judgment along with the suitors and even before them[825].

The rolls of ancient demesne manors present a considerable variety of types, shading off from an almost complete independence of the suitors to forms which are not very different from those of common law manors.

Stoneleigh may be taken as a good specimen of the first cla.s.s.

[The court at Stoneleigh.]

The manor was divided into six hamlets, and every one of these consisted of eight virgates of land which were originally held by single socmen; although the regularity of the arrangement seems to have been broken up very soon in consequence of increase of population, extension of the cultivated area, and the sale of small parcels of the holdings. The socmen met anciently to hold courts in a place called Motstowehill, and afterwards in a house which was built for the purpose by the Abbot. The way in which the Register speaks of the admission of a socman to his holding is very characteristic: 'Every heir succeeding to his father ought to be admitted to the succession in his fifteenth year, and let him pay relief to the lord, that is, pay twice his rent. And he will give judgments with his peers the socmen; and become reeve for the collection of the lord's revenue, and answer to writs and do everything else as if he was of full age at common law.' The duty and right to give judgment in the Court of Stoneleigh is emphatically stated on several occasions, and altogether the jurisdictional independence of the court and of its suitors is set before us in the smallest but always significant details. If somebody is bringing a royal close writ of right directed to the bailiffs of the manor it cannot be opened unless in full court. When the bailiff has to summon anybody by order of the court he takes two socmen to witness the summons. Whenever a trial is terminated either by some one's default in making his law or by non-defence the costs are to be taxed by the court. The alienation of land and admittance of strangers are allowed only upon the express consent of the court[826]. In one word, every page of the Stoneleigh Register shows a closely and powerfully organised community, of which the lord is merely a president.

[Rolls of King's Ripton.]

The rolls of King's Ripton are not less explicit in this respect. People are fined for selling land without the licence of the court, for selling it 'outside the court[827].' The judgment depends entirely on the verdict given by the community of suitors or its representatives the jurors. When the parties rely on some former decision, arrangement, or statement of law, they appeal to the rolls of the court, which, as has been said already, present nothing else but the recorded jurisprudence of the body of suitors[828]. The extent of the legal self-government of this little community may be well seen in the record of a trial in which the Abbot of Ramsey, the lord of the manor, is impleaded upon a little writ of right by one of his tenants[829]. But it is hardly necessary to dwell on so normal an event. I should like to take up for once the opposite standpoint, and to show that in these very communities on the ancient demesne elements are apparent which have thrived and developed in ordinary manors to such an extent as to obscure their self-government. In the Rolls of King's Ripton we might easily notice a number of instances in which the influence of the lord makes itself felt directly or indirectly through the means of his steward. We come, for instance, on the following forms of pleading: An action of dower is brought, and the defendants ask that the laws and customs. .h.i.therto used in the court should be observed in regard to them--they have a right to three summonses, three distraints, and three essoins, and if they make default after that, the land ought to be taken into the lord's hand, when, but only if it is not replevied in the course of fifteen days, it will be lost for good and all. All these demands are granted by the steward, with whom the decision, at least formally, rests[830]. Again, when we hear that the whole court craves leave to defer its judgment till the next meeting, it is clear that it rests with the steward to grant this request[831]. We may find now and then a consideration for the interests of the lord which transcends the limits of mere formal right, as in a case where a certain Margery asks the court, without any writ of right or formal action, that an inquest may be held as to a part of her messuage which is detained in the hands of the Abbot, although she performs the service due for it. The inquest is held, and apparently ends in her favour, but she is directed at the same time to go and speak with the lord about the matter. Ultimately she gets what she wants after this private interview[832]. The proceedings are irregular and interesting: the usual forms of action are disregarded; a verdict is given, but the material decision is left with the lord, and is to be sought for by private intercession. Quite close to this entry we find an instance which is in flagrant contradiction with such a considerate treatment of all parties. The jurors of the court are called upon to decide a question of testament and succession. They say that none of them was present when the testament was made, and that they know nothing about it, and will say nothing about it. 'And so leaving their business undone, and in great contempt of the lord and of his bailiffs, they leave the court. And therefore it is ordered that the bailiffs do cause to be levied a sum of 40 s. to the use of the lord from the property of the said jurors by distress continued from day to day[833].' This case may stand as a good example both of the st.u.r.dy self-will which the peasantry occasionally a.s.serted in their dealings with the lord, and of the opportunities that the lord had of a.s.serting his superiority in a very high-handed manner.

But we need not even turn to any egregious instances in which the lord's power is thus displayed. The usual forms of surrender are there to show that, as regards origins, we have the same thing here as in ordinary manors, although the peculiarities of the ancient demesne have brought forward the features of communal organisation in a very marked way, and have held the element of lords.h.i.+p in check.

[Free suitors in the halimot.]

We have seen that there was only one halimot in the thirteenth and the preceding centuries, and that the division into customary court and court baron developed at a later time. We have seen, secondly, that this halimot was a meeting of the community under the presidency of the steward, and that the relative functions of community and steward became very distinct only in later days. It remains to be seen how far the fundamental cla.s.s division between free tenants and villains affected the management of the court. As there was but one halimot and not two, both cla.s.ses had to meet and to act concurrently in it. The free people now and then a.s.sert separate claims: a chaplain wages his law on the manor of Brightwaltham that he did not defame the lord's butler, but when he gets convicted by a good inquest of jurors of having broken the lord's hedges and carried away the lord's fowls, he will not justify himself of these trespa.s.ses and departs in contempt, doubtless because he will not submit to the judgment of people who are not on a par with him[834]. Freeholders object to being placed on ordinary juries of the manor[835], although they will serve as jurors on special occasions, and as a sort of controlling body over the common presenters[836].

Amercements are sometimes taxed by free suitors[837]. But although some division is apparent in this way, and the elements for a separation into two distinct courts are gathering, the normal condition is one which does not admit of any distinction between the two cla.s.ses. We come here across the same peculiarity that we have seen in police and criminal law, namely, that the fundamental line of civil condition seems disregarded. Even when a court is mainly composed of villains, and in fact called curia villanorum, some of its suitors may be freeholders[838]. Even in a court composed of free people, like that of Broughton, there may be villains among them[839]. The parson, undoubtedly a free man, may appear as a villain in some rolls[840].

Altogether, the fact has to be noticed as a very important one, that whatever business the freeholders may have had in connexion with the manorial system, this business was transacted by courts which consisted chiefly of servile tenants[841]. In fact the presenting inquests, on which the free tenants refused to serve, would not be prevented by their composition from attainting these free tenants.

[Requirement of free suitors.]

This seems strange and indeed anomalous. One point remains to be observed which completes the picture: although the great majority of the thirteenth century peasantry are mere villains, although on some manors we hardly distinguish freeholders, there is a legal requirement that there should be at least a few freeholders on every manor. Later theory does not recognise as a manor an estate composed only of demesne land and copyhold. Freeholds are declared to be a necessary element, and should they all escheat, the manor would be only a reputed one[842]. We have no right to treat this notion as a mere invention of later times.

It comes forward again and again in the shape of a rule, that there can be no court unless there are some free tenants to form it. The number required varies. In Henry VIII's reign royal judges were contented with two. In John's time as many as twelve were demanded, if a free outsider was to be judged. The normal number seems to have been four, and when the record of the proceedings was sent up to the King's tribunal four suitors had to carry it. The difference between the statement of c.o.ke and the earlier doctrine lies in the subst.i.tution of the manor for the court. c.o.ke and his authorities, the judges of Henry VIII's reign, speak of the manor where the older jurisprudence spoke of the court. Their rule involves the more ancient one and something in addition, namely, the inference that if there be no court baron there is no manor. Now this part of the doctrine, though interesting by itself, must stand over for the present. Let us simply take the a.s.sertion that free suitors are necessary to const.i.tute a court, and apply it to a state of things when there was but one strictly manorial court, the halimot. In 1294 it is noted in the report of a trial that, 'in order that one may have a court he must have at least four free tenants, without borrowing the fourth tenant[843].' Now a number of easy explanations seem at hand: four free tenants at least were necessary, because four such tenants were required to take the record up to the king's court and to answer for any false judgment; a free tenant could protest against being impleaded before unfree people; some of the franchises could not be exercised unless there were free suitors to form a tribunal. But all these explanations do not go deep enough: they would do very well for the later court baron, but not for the halimot. It is not a.s.serted that free suitors are necessary only in those cases where free tenants are concerned--it is the court as such which depends on the existence of such free suitors, the court which has largely, if not mostly, to deal with customary business, and consists to a great extent of customary tenants. And, curiously enough, when the court baron disengages itself from the halimot, the rule as to suitors, instead of applying in a special way to this court baron, for which it seems particularly fitted, extends to the notion of the manor itself, so that we are driven to ask why the manor is a.s.sumed to contain a certain number of free tenants and a court for them. Why is its existence denied where these elements are wanting? Reverting to the thirteenth century, we have to state similar puzzling questions: thus if one turns to the manorial surveys of the time, the freehold element seems to be relatively insignificant and more or less severed from the community; if one takes up the manorial rolls, the halimot is there with the emphatically expressed features and even the name of a court of villains; but when the common law is concerned, this same tribunal appears as a court of freeholders. The manors of the Abbey of Bec on English soil contained hardly any freeholders at all.

Had the Abbey no courts? Had it no manors from the standpoint of c.o.ke's theory? What were the halimots whose proceedings are recorded in the usual way on its manorial rolls? In presence of these flagrant contradictions I cannot help thinking that we here come across one of those interesting points where the two lines of feudal doctrine do not meet, and where different layers of theory may be distinguished.

[Free suitors and freeholders.]

Without denying in the least the practical importance of such notions as that which required that one's judges should be one's peers, or of such inst.i.tutions as the bringing up of the manorial record to the King's Court, I submit that they must have exercised their influence chiefly by calling forth occasions when the main principle had to be a.s.serted. Of course they could not create this principle: the idea that the halimot was a communal court const.i.tuted by free suitors meeting under the presidency of the steward, must have existed to support them. That idea is fully embodied in the const.i.tution of the ancient demesne tribunal, where the suitors were admitted to be the judges, although they were villains, privileged villains and nothing else. Might we not start from the original similarity between ancient demesne and ordinary manors, and thus explain how the rule as to the necessary const.i.tution of the manorial court was formed? It seems to me a mere application of the higher rule that a court over free people must contain free people, to a state of things where the distinction between free and unfree was not drawn at the same level as in the feudal epoch, but was drawn at a lower point. We have seen that a villain was in many respects a free man; that he was accepted as such in criminal and police business; that he was free against everybody but his lord in civil dealings; that the frank-pledge system to which he belonged was actually taken to imply personal freedom, although the freeholders ultimately escaped from it. I cannot help thinking that a like transformation of meaning as in the case of frank-pledge did take place in regard to the free suitors of the manorial court. The original requirement cannot have concerned freeholders in the usual legal sense, but free and lawful men, 'worthy of were and wite'--a description which would cover the great bulk of the villains and exclude slaves and their progeny. When the definitions of free holding and villainage got to be very stringent and marked, the _libere tenentes_ a.s.sumed a more and more overbearing att.i.tude and got a separate tribunal, while the common people fell into the same condition as the progeny of slaves. In a word, I think that the general movement of social development which obliterated the middle cla.s.s of Saxon ceorls or customary free tenants (leaving only a few scattered indications of its existence) made itself felt in the history of the manorial court by the subst.i.tution of exceptional freeholders for the free suitors of the halimot. Such a subst.i.tution had several results: the diverging history of the ancient demesne from that of the ordinary manorial courts, the elevation of the court baron, the growth of the notion that in the customary court the only judge was the steward. One significant little trait remains to be observed in this context. It has been noticed[844]

that care seems to be taken that there should be certain Freemen or Franklains in every manor. The feature has been mentioned in connexion with the doctrine of free suitors necessary to a court. But these people are by no means free tenants; in the usual legal sense they are mostly holding in villainage, and their freedom must be traced not to the dual division of feudal times, but to survivals of the threefold division which preceded feudalism, and contrasted slave, free ceorl, and military landowner.

[Honorial Courts.]

Before concluding this chapter I have to say a few words upon those forms of the manorial court which appear as a modification of the normal inst.i.tution. Of the ancient demesne tribunal I have already spoken, but there are several other peculiar formations which help to bring out the main ideas of manorial organisation, just because they swerve from it in one sense or another. Mr. Maitland has spoken so well of one of these variations, that I need not do anything more than refer the reader to his pages about the Honour and its Court[845]. He has proved that it is no mere aggregate of manors, but a higher court, constructed on the feudal principle, that every lord who had free tenants under him could summon them to form a court for their common dealings. It ought to be observed, however, that the instance of Broughton, though its main basis is undoubtedly this feudal doctrine, still appears complicated by manorial business, which is brought in by way of appeal and evocation, as well as by a mixture between the court of the great fief and the halimot of Broughton.

[The soke.]

A second phenomenon well worth consideration is the existence in some parts of the country of a unit of jurisdiction and management which does not fall in with the manor,--it is called the _soke_, and comprises free tenantry dispersed sometimes over a very wide area. A good example of this inst.i.tution is given by Mr. Clark's publication on the Soke of Rothley in Lincolns.h.i.+re[846]. We need not go into the details of the personal status of the tenants, they clearly come under the description of free sokemen. Our present concern is that they are not simply arranged into the manor of Rothley as usual, but are distinguished as forming the soke of this manor. They are rather numerous-- twenty-three--and come to the lord's court, but their services are trifling as compared with those of the customers, and their possessions are so scattered, that there could be no talk of their joining the agrarian unit of the central estate. What unites them to the manor is evidently merely jurisdiction, although in feudal theory they are a.s.sumed to hold of the lord of Rothley. But they are set apart as forming the soke, and this shows them clearly to be subjected to jurisdiction rather than anything else. It is interesting to note such survivals in the thirteenth century, and within the realm of feudal law the case of Rothley is of course by no means the only one[847]. If we contrast this exceptional appearance of the soke outside the manor with the normal arrangement by which all the free tenants are fitted into the manor, we shall come to the conclusion that originally the element of jurisdiction over freeholders might exist separately from the management of the estate, but that in the general course of events it was merged into the estate and formed one of the component elements of the manorial court. The case of Rothley is especially interesting because the men of the soke or under the soke do not go to a court of their own, but simply join the manorial meetings. If they are still kept apart, it is evident that their relation to the court, and indeed to the manor, was what made them distinct from everybody else. In short, to state the difference in a pointed form, the other people were tenants and they were subjects.

[The Aston case.]

One more point remains to be noticed. In order to make it clear we must by way of exception start from the arrangements of a later epoch than that which we have been discussing. The manor of Aston and Cote, which may have been carved out with several others from the manor of Bampton, presents a very good instance of a village meeting which does not coincide with the manorial divisions, and appears constructed on the lines of a village community which has preserved its unity, although several manors have grown out of it. It was stated by the lord of the manor of Aston and Cote in 1657, that 'there hath been a custom time out of mind that a certain number of persons called the _Sixteen_, or the greater part of them, have used to make orders, set penalties, choose officers, and lot meadows, and do all such things as are usually performed or done in the courts baron of other manors.' All the details of this case are interesting, but we need not go into them, because they have been set out with sufficient care in the existing literature, and summed up by Mr. Gomme in his book on the Village Community[848]. It is the main point which we must consider. Here is an a.s.sembly meeting to transact legal and economic business, which acts on the pattern of manorial courts. And if not a manorial court, what is it? I think it is difficult to escape the conclusion that it is a meeting of the village community outside the lines of manorial division. The supposition that it represents the old manor of Bampton, to which Aston, Cote, Bampton Pogeys, Bampton Priory are subordinated, is entirely insufficient to explain the case, because then we should not have had to recognise new manors in the fractions which were detached from Bampton, and there would have been no call to speak of a peculiar a.s.sembly a.s.suming the competence of a court baron--we should have had the manorial court and the lord of Bampton, and not the Sixteen to speak of. The fact is patent and significant. It shows by itself that there may have been cases where the village community and the manor did not coincide, and the village community had the best of it.

[Manor and Towns.h.i.+p.]

The first proposition does not admit of doubt. It was of quite common occurrence that the land of one village should be broken up between several manors, although its open field system and all its husbandry arrangements remained undivided. The question arises, how was that system to work? There could be express agreement between the owners[849]; ancient custom and the interference of manorial officers chosen from the different parts could help on many occasions. But it is impossible to suppose, in the light of the Bampton instance, that meetings might not sometimes exist in such divided villages which took into their hands the management of the many economic questions arising out of common husbandry: questions about hedges, rotation of crops, commonable animals, usage as to wood, moor, pasture, and so forth. A diligent search in the customs of manors at a later period, say in the sixteenth and seventeenth centuries, must certainly disclose a number of similar instances. Our own material does not help us, because it pa.s.ses over questions of husbandry, and touches merely jurisdiction, owners.h.i.+p, and tenant-right. And so we must restrict ourselves to notice the opening for an inquiry in that direction.

[Towns.h.i.+p and Manor.]

Such an inquiry must also deal with the converse possibility, namely, the cases in which the manor is so large that several village units fit into it. We may find very frequently in some parts of the country large manors which are composed of several independent villages and hamlets[850]. On large tracts of land these villages would form separate open field groups. Although the economic evidence is not within our reach in early times, we have indications of separate village meetings under the manorial court even from the legal point of view taken by the court-rolls. In several instances the entries printed in the second volume of the Selden Society publications point to the action of towns.h.i.+ps as distinct from the manorial court, and placed under it. In Broughton a man distrained for default puts himself on the verdict of the whole court and of the towns.h.i.+p of Hurst, both villains and freemen, that he owes no suit to the court of Broughton, save twice a year and to afforce the court. Be it noted that the court of Hurst is distinguished from the towns.h.i.+p, which appears subordinated to it, probably because there were other towns.h.i.+ps in the manor of Hurst. At the same time the towns.h.i.+p is called upon to act as an independent unit in the matter.

Even so in the rolls of Hemingford, the towns.h.i.+p which forms the centre of the manor and gives its name to it, is sometimes singled out from the rest of the court as an organised corporation[851]. When towns.h.i.+p and t.i.thing coincided, as in the case of Brightwaltham, the t.i.thing gets opposed to the general court in the same way[852]. Altogether the corporate unity of towns.h.i.+ps is well perceivable behind the feudal covering of the manor. Mr. Maitland says with perfect right, 'the manor was not a unit in the governmental system; the county was such a unit, so was the hundred. So again was the vill, for the towns.h.i.+p had many police duties to perform; it was an amerciable, punishable unit; not so the manor, unless it coincided with the vill[853].' And then he proceeds to suggest that the true explanation of the manor is that it represents an estate which could be and was administered as a single economic and agrarian whole. I am unable to follow him entirely as to this last point, because it seems pretty clear that the open field arrangements followed the division into towns.h.i.+ps, and not those into manors. From the point of view of the services, of the concentration of duties of the tenantry in regard to the lord, the manor was a whole, and for this very reason it was a whole as regards geldability, but this is only one side of the economic structure of society, the upper side, if one may be allowed to say so. The arrangement of actual cultivation is the other side, and it is represented by the towns.h.i.+p with its communal open fields. Now in a great many cases the estate and the community fitted into each other; and of these instances there is no need to speak any further. But if both did not fit, the agrarian unity is the towns.h.i.+p and not the manor. The open field system appears in this connexion as outside the manor, and proceeding from the rural community by itself.

Let us sum up the results obtained in this chapter.

1. The village communities contained in the manorial system are organised on a system of self-government which affords great help to the lord in many ways, but certainly limits his power materially, and reduces him to the position of a const.i.tutional ruler.

2. The original court of the manor was one and the body of its suitors was one. The distinction between courts for free tenants and customary courts grows up very gradually in the fourteenth century, and later.

3. The steward was not the only judge of the halimot. The judgment came from the whole court, and its suitors, without distinction of cla.s.s, were necessary judicial a.s.sessors.