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Villainage in England: Essays in English Mediaeval History

by Paul Vinogradoff

1892

First Essay

The Peasantry of the Feudal Age.

Chapter One

The Legal Aspect of Villainage. General Conceptions

It has become a commonplace to oppose medieval serfdom to ancient slavery, one implying dependence on the lord of the soil and attachment to the glebe, the other being based on complete subjection to an owner. There is no doubt that great landmarks in the course of social development are set by the three modes hitherto employed of organising human labour: using the working man (1) as a chattel at will, (2) as a subordinate whose duties are fixed by custom, (3) as a free agent bound by contract. These landmarks probably indicate molecular changes in the structure of society scarcely less important than those political and intellectual revolutions which are usually taken as the turning-points of ancient, medieval, and modern history.     And still we must not forget, in drawing such definitions, that we reach them only by looking at things from such a height that all lesser inequalities and accidental features of the soil are no longer sensible to the eyesight. In finding one's way over the land one must needs go over these very inequalities and take into account these very features. If, from a general survey of medieval servitude, we turn to the actual condition of the English peasantry, say in the thirteenth century, the first fact we have to meet will stand in very marked contrast to our general proposition.     The majority of the peasants are villains, and the legal conception of villainage has its roots not in the connexion of the villain with the soil, but in his personal dependence on the lord.     If this is a fact, it is a most important one. It would be reckless to treat it as a product of mere legal pedantry.* The great work achieved by the English lawyers of the twelfth and thirteenth centuries was prompted by a spirit which had nothing to do with pedantry. They were fashioning state and society, proudly conscious of high aims and power, enlightened by the scholastic training of their day, but sufficiently strong to use it for their own purposes; sound enough not to indulge in mere abstractions, and firm enough not to surrender to mere technicalities.* In the treatment of questions of status and tenure by the lawyers of Henry II, Henry III, and Edward I, we must recognise a mighty influence which was brought to bear on the actual condition of things, and our records show us on every page that this treatment was by no means a matter of mere theory. Indeed one of the best means that we have for estimating the social process of those times is afforded by the formation and the break up of legal notions in their cross influences with surrounding political and economic facts.     As to the general aspect of villainage in the legal theory of English feudalism there can be no doubt. The 'Dialogus de Scaccario' gives it in a few words: the lords are owners not only of the chattels but of the bodies of their ascripticii, they may transfer them wherever they please, 'and sell or otherwise alienate them if they like.'* Glanville and Bracton, Fleta and Britton* follow in substance the same doctrine, although they use different terms. They appropriate the Roman view that there is no difference of quality between serfs and serfs: all are in the same abject state. Legal theory keeps a very firm grasp of the distinction between status and tenure, between a villain and a free man holding in villainage, but it does not admit of any distinction of status among serfs: servus, villanus, and nativus are equivalent terms as to personal condition, although this last is primarily meant to indicate something else besides condition, namely, the fact that a person has come to it by birth.* The close connexion between the terms is well illustrated by the early use of nativa, nieve, 'as a feminine to villanus.'     These notions are by no means abstractions bereft of practical import. Quite in keeping with them, manorial lords could remove peasants from their holdings at their will and pleasure. An appeal to the courts was of no avail: the lord in reply had only to oppose his right over the plaintiff's person, and to refuse to go into the subject-matter of the case.* Nor could the villain have any help as to the amount and the nature of his services;* the King's Courts will not examine any complaint in this respect, and may sometimes go so far as to explain that it is no business of theirs to interfere between the lord and his man.* In fact any attempt on the part of the dependant to assert civil rights as to his master will be met and defeated by the 'exceptio villenagii.'* The state refuses to regulate the position of this class on the land, and therefore there can be no question about any legal 'ascription' to the soil. Even as to his person, the villain was liable to be punished and put into prison by the lord, if the punishment inflicted did not amount to loss of life or injury to his body The extant Plea Rolls and other judicial records are full of allusions to all these rights of the lord and disabilities of the villain, and it must be taken into account that only an infinitely small part of the actual cases can have left any trace in such records, as it was almost hopeless to bring them to the notice of the Royal Courts.*     It is not strange that in view of such disabilities Bracton thought himself entitled to assume equality of condition between the English villain and the Roman slave, and to use the terms servus, villanus, and nativus indiscriminately. The characteristics of slavery are copied by him from Azo's commentary on the institutes, as material for a description of the English bondmen, and he distinguishes them carefully even from the Roman adscripticii or coloni of base condition. The villains are protected in some measure against their lord in criminal law; they cannot be slain or maimed at pleasure; but such protection is also afforded to slaves in the later law of the Empire, and in fact it is based in Bracton on the text of the Institutes given by Azo, which in its turn is simply a summary of enactments made by Hadrian and Antonine. The minor law books of the thirteenth century follow Bracton in this identification of villainage with slavery. Although this identification could not but exercise a decisive influence on the theory of the subject, it must be borne in mind that it did not originate in a wanton attempt to bring together in the books dissimilar facts from dissimilar ages. On the contrary, it came into the books because practice had paved the way for it. Bracton was enabled to state it because he did not see much difference between the definitions of Azo and the principles of Common Law, as they had been established by his masters Martin of Pateshull and William Raleigh. He was wrong, as will be shown by-and-by, but certainly he had facts to lean upon, and his theory cannot be dismissed on the ground of his having simply copied it from a foreigner's treatise.     Most modern writers on the subject have laid stress upon a difference between villains regardant and villains in gross, said to be found in the law books.* It has been taken to denote two degrees of servitude -- the predial dependence of a colonus and the personal dependence of a true slave. The villain regardant was (it is said) a villain who laboured under disabilities in relation to his lord only, the villain in gross possessed none of the qualities of a freeman. One sub-division would illustrate the debasement of freemen who had lost their own land, while the other would present the survival of ancient slavery.     In opposition to these notions I cannot help thinking that Hallam was quite right in saying: 'In the condition of these (villains regardant and villains in gross), whatever has been said by some writers, I can find no manner of difference; the distinction was merely technical, and affected only the mode of pleading. The term in gross is appropriated in our legal language to property held absolutely and without reference to any other. Thus it is applied to rights of advowson or of common, when possessed simply, and not as incident to any particular lands. And there can be no doubt that it was used in the same sense for the possession of a villein.' (Middle Ages, iii. 173; cf. note XIV.) Hallam's statement did not carry conviction with it however, and as the question is of considerable importance in itself and its discussion will incidentally help to bring out one of the chief points about villainage, I may be allowed to go into it at some length.     Matters would be greatly simplified if the distinction could really be traced through the authorities. In point of fact it turns out to be a late one. We may start from Coke in tracing back its history. His commentary upon Littleton certainly has a passage which shows that he came across opinions implying a difference of status between villains regardant and villains in gross. He speaks of the right of the villain to pursue every kind of action against every person except his lord, and adds: 'there is no diversity herein, whether he be a villain regardant or in gross, although some have said to the contrary,* (Co. Lit. 123 b). Littleton himself treats of the terms in several sections, and it is clear that he never takes them to indicate status or define variation of condition. As has been pointed out by Hallam, he uses them only in connexion with a diversity in title, and a consequent diversity in the mode of pleading. If the lord has a deed or a recorded confession to prove a man's bondage, he may implead him as his villain in gross; if the lord has to rely upon prescription, he has to point out the manor to which the party and his ancestors have been regardant, have belonged, time out of mind.* As it is a question of title and not of condition, Littleton currently uses the mere 'villain' without any qualification, whereas such a qualification could not be dispensed with, if there had been really two different classes of villains. Last but not least, any thought of a diversity of condition is precluded by the fact, that Littleton assumes the transfer from one sub-division to the other to depend entirely on the free will of the lord (sections 175, 181, 182, 185). But still, although even Littleton does not countenance the classification I am now analysing, it seems to me that some of his remarks may have given origin to the prevalent misconception on the subject.     Let us take up the Year Books, which, even in their present state, afford such an inestimable source of information for the history of legal conceptions in the fourteenth and fifteenth centuries. An examination of the reports in the age of the Edwards will show at once that the terms regardant and in gross are used, or rather come into use, in the fourteenth century as definitions of the mode of pleading in particular cases. They are suggested by difference in title, but they do not coincide with it, and any attempt to make them coincide must certainly lead to misapprehension. I mean this the term 'villain regardant' applied to a man does not imply that the person in question has any status superior to that of the 'villain in gross,' and it does not imply that the lord has acquired a title to him by some particular mode of acquisition, e.g. by prescription as contrasted with grant or confession; it simply implies that for the purpose of the matter then in hand, for the purpose of the case that is then being argued, the lord is asserting and hoping to prove a title to the villain by relying on a title to a manor with which the villain is or has been connected-title it must be remembered is one thing, proof of title is another. As the contrast is based on pleading and not on title, one and the same person may be taken and described in one case as a villain regardant to a manor, and in another as a villain in gross. And now for the proof.     The expression 'regardant' never occurs in the pleadings at all, but 'regardant to a manor' is used often. From Edward III's time it is used quite as a matter of course in the formula of the 'exceptio' or special plea of villainage.* That is, if the defendant pleaded in bar of an action that the plaintiff was his bondman he generally said, I am not bound to answer A, because he is my villain and I am seised of him as of my villain as regardant to my manor of C. Of course there are other cases when the term is employed, but the plea in bar is by far the most common one and may stand for a test. This manner of pleading is only coming gradually into use in the fourteenth century, and we actually see how it is taking shape and spreading. As a rule the Year Books of Edward I's time have not got it. The defendant puts in his plea unqualified. 'He ought not to be answered because he is our villain' (Y.B. 21/22 Edward I, p. 166, ed. Horwood). There is a case in 1313 when a preliminary skirmish between the counsel on either side took place as to the sufficiency of the defendant's plea in bar, the plaintiff contending that it was not precise enough. Here, if any where, we should expect the term 'regardant,' but it is not forthcoming1. What is more, and what ought to have prevented any mistake, the official records of trials on the Plea Rolls up to Edward II always use the plain assertion, 'villanus... et tenet in villenagio.'* The practice of naming the manor to which a villain belonged begins however to come in during the reign of Edward II, and the terminology is by no means settled at the outset; expressions are often used as equivalent to 'regardant' which could hardly have misled later antiquaries as to the meaning of the qualification.* In a case of 1322, for instance, we have 'within the manor' where we should expect to find 'regardant to the manor.'* This would be very nearly equivalent to the Latin formula adopted by the Plea Rolls, which is simply ut de manerio.* Every now and then cases occur which gradually settle the terminology, because the weight of legal argumentation in them is made to turn on the fact that a particular person was connected with a particular manor and not with another. A case from 1317 is well in point. B.P. the defendant excepts against the plaintiff T.A. on the ground of villainage (qil est nostre vileyn, and nothing else). The plaintiff replies that he was enfranchised by being suffered to plead in an assize of mort d'ancestor against B.P.'s grandmother. By this the defendant's counsel is driven to maintain that his client's right against T.A. descended not from his grandmother but from his grandfather, who was seised of the manor of H. to which T.A. belonged as a villain.* The connexion with the manor is adduced to show from what quarter the right to the villain had descended, and, of course, implies nothing as to any peculiarity of this villain's status, or as to the kind of title, the mode of acquiring rights, upon which the lord relies -- it was ground common to both parties that if the lord had any rights at all he acquired them by inheritance.     Another case seems even more interesting. It dates from 1355, that is from a time when the usual terminology had already become fixed. It arose under that celebrated Statute of Labourers which played such a prominent part in the social history of the fourteenth century. One of the difficulties in working the statute came from the fact that it had to recognise two different sets of relations between the employer and the workman. The statute dealt with the contract between master and servant, but it did not do away with the dependence of the villain on the lord, and in case of conflict it gave precedence to this latter claim; a lord had the right to withdraw his villain from a stranger's service. Such cross influences could not but occasion a great deal of confusion, and our case gives a good instance of it. Thomas Barentyn has reclaimed Ralph Crips from the service of the Prior of the Hospitalers, and the employer sues in consequence both his former servant and Barentyn. This last answers, that the servant in question is his villain regardant to the manor of C. The plaintiffs counsel maintains that he could not have been regardant to the manor, as he was going about at large at his free will and as a free man; for this reason A. the former owner of the manor was never seised of him, and not being seised could not transfer the seisin to the present owner, although he transferred the manor. For the defendant it is pleaded, that going about freely is no enfranchisement, that by the gift of the manor every right connected with the manor was also conferred and that consequently the new lord could at any moment lay hands on his man, as the former lord could have done in his time. Ultimately the plaintiff offers to join issue on the question, whether the servant had been a villain regardant to the manor of C. or not. The defendant asserts, rather late in the day, that even if the person in question was not a villain regardant to the manor of C. the mere fact of his being a villain in gross would entitle his lord to call him away. This attempt to start on a new line is not allowed by the Court because the claim had originally been traversed on the ground of the connexion with the manor.     The peculiarity of the case is that a third person has an interest to prove that the man claimed as villain had been as a free man. Usually there were but two parties in the contest about status; the lord pulling one way and the person claimed pulling the other way, but, through the influence of the Statute of Labourers, in our case lord and labourer were at one against a third party, the labourer's employer. The acknowledgment of villainage by the servant did not settle the question, because, though binding for the future, it was not sufficient to show that villainage had existed in the past, that is at the time when the contract of hire and service was broken through the interference of the lord. Everything depended on the settlement of one question was the lord seised at the time, or not? Both parties agree that the lord was not actually seised of the person, both agree that he was seised of the manor, and both suppose that if the person had as a matter of fact been attached to the manor it would have amounted to a seisin of the person. And so the contention is shifted to this point: can a man be claimed through the medium of a manor, if he has not been actually living, working and serving in it? The court assumes the possibility, and so the parties appeal to the country to decide whether in point of fact Ralph Crips the shepherd had been in legal if not in actual connexion with the manor, i.e. could be traced to it personally or through his relatives.     The case is interesting in many ways. It shows that the same man could be according to the point of view considered both as a villain in regard to a manor, and as a villain in gross. The relative character of the classification is thus illustrated as well as its importance for practical purposes. The transmission of a manor is taken to include the persons engaged in the cultivation of its soil, and even those whose ancestors have been engaged in such cultivation, and who have no special plea for severing the connexion.     As to the outcome of the whole inquiry, we may, it seems to me, safely establish the following points: 1. The terms 'regardant' and 'in gross' have nothing to do with a legal distinction of status. 2. They come up in connexion with the modes of proof and pleading during the fourteenth century. 3. They may apply to the same person from different points of view. 4. 'Villain in gross' means a villain without further qualification; 'villain regardant to a manor' means villain by reference to a manor. 5. The connexion with a manor, though only a matter of fact and not binding the lord in any way, might yet be legally serviceable to him, as a means of establishing and proving his rights over the person he claimed.     I need hardly mention, after what has been said, that there is no such thing as this distinction in the thirteenth century law books. I must not omit, however, to refer to one expression which may be taken to stand in the place of the later 'villain regardant to a manor.' Britton (ii, 55) gives the formula of the special plea of villain ge to the assize of mort d'ancestor in the following words. 'Ou il poie dire qe il est soen vileyn et soen astrier et demourrant en son villenage.' There can be no doubt that residence on the lord's land is meant, and the term astrier leads even further, it implies residence at a particular hearth or in a particular house. Fleta gives the assize of novel disseisin to those who have been a long time away from their villain hearth* ('extra astrum suum villanum,' p, 217). If the term 'astrier' were restricted to villains it would have proved a great deal more than the 'villain regardant' usually relied upon. But it is of very wide application. Britton uses it of free men entitled to rights of common by reason of tenements they hold in a township (i, 392). Bracton speaks of the case of a nephew coming into an inheritance in preference to the uncle because he had been living at the same hearth or in the same hall (in atrio or astro) with the former owner,* and in such or a similar sense the word appears to have been usually employed by lawyers.* On the other hand, if we look in Bracton's treatise for parallel passages to those quoted from the Fleta and Britton about the villain astrier, we find only a reference to the fact that the person in question was a serf and holding in villainage and under the sway of a lord,* and so there is nothing to denote special condition in the astrer. When the term occurs in connexion with villainage it serves to show that a person was not only a bondman born, but actually living in the power of his lord, and not in a state of liberty. The allusion to the hearth cannot possibly mean that the man sits in his own homestead, because only a few of the villains could have been holders of separate homesteads, and so it must mean that he was sitting in a homestead belonging to his lord, which is quite in keeping with the application of the term in the case of inheritance.     The facts we have been examining certainly suppose that in the villains we have chiefly to do with peasants tilling the earth and dependent on manorial organisation. They disclose the working of one element which is not to be simply deduced from the idea of personal dependence.     It may be called subjection to territorial power. The possession of a manor carries the possession of cultivators with it. It is always important to decide whether a bondman is in the seisin of his lord or not, and the chief means to show it is to trace his connexion with the territorial lordship. The interposition of the manor in the relation between master and man is, of course, a striking feature and it gives a very characteristic turn to medieval servitude. But if it is not consistent with the general theory laid down in the thirteenth century law books, it does not lead to anything like the Roman colonatus. The serf is not placed on a particular plot of land to do definite services under the protection of the State. He may be shifted from one plot within the jurisdiction of his lord to another, from one area of jurisdiction to another, from rural labour to industrial work or house work, from one set of customs and services to another. He is not protected by his predial connexion against his lord, and in fact such predial connexion is utilised to hold and bind him to his lord. We may say, that the unfree peasant of English feudalism was legally a personal dependant, but that his personal dependence was enforced through territorial lordship.

NOTES:

1. Thorold Rogers, History of Agriculture and Prices, i. 70; Six Centuries of Work and Wages, 44. Cf Chandler, Five Court Rolls of Great Cressingham in the county of Norfolk, 1885, pp. viii, ix.

2. Stubbs, Seventeen Lectures, 304, 305; Maitland, Introduction to the Note-book of Bracton, 4 sqq.

3. Dial. de Scacc. Ii. 10 (Select Charters, p. 222). Cf i. 10; p. 192.

4. Glanville, v. 5; Bracton, 4, 5; Fleta, i. 2; Britton, ed. Nichols, i. 194.

5. Bracton, 5; Britton, i. 197. Pollock, Land-laws, App. C, is quite right as to the fundamental distinction between status and tenure, but he goes too far, I think, in trying to trace the steps by which names originally applying to different things got confused in the terminology of the Common Law. Annotators sometimes indulged in distinctions which contradict each other and give us no help as to the law. The same Cambridge MS. from which Nichols gives an explanation of servus, nativus, and villanus (i. 195) has a different etymology in a marginal note to Bracton. 'Nativus dicitur a nativitate-quasi in servitute natus, villanus dicitur a villa, quasi faciens villanas consuetudines racione tenementi, vel sicut ille qui se recognoscit ad villanum in curia quae recordum habet, servus vero dicitur a servando quasi per captivitatem, per vim et injustam detentionem villanus captus et detentus contra mores et consuetudines juris naturalis, (Cambr. Univers. MSS. Dd. vii. 6. I have the reference from my friend F.W. Maitland).

6. Placita Coram Rege, Easter, 14 Edw. I, m. 9: "Willelmus Barantyn et Radulfus attachiati fuerunt ad respondendum Agueti de Chalgraue de placito quare in ipsam Agnetem apud Chalgraue insultum fecerunt et ipsam verberaverunt, vulneraverunt et male tractaverunt, et bona et catalla sua in domibus ipsius Agnetis apud Chalgraue scilicet ordeum et avenam, argentum, archas et alia bona ad valenciam quadraginta solidorum ceperunt et asportaverunt; et ipsam Agnetem effugaverunt de uno mesuagio et dimidia virgata terre de quibus fuit in seysina prr predictum Willelmum que fuerunt de antiquo dominico per longum tempus; nec permiserunt ipsam Agnetem morari in predicta villa de Chalgraue; et eciam quandam sororem ipsius Agnetis eo quod ipsa soror eam hospitavit per duas noctes de domibus suis eiecit, terra et catalla sua abstulit. Et predicti Willelmus et Radulfus veniunt. Et quo ad insultacionem et verberacionem dicunt quod non sunt inde culpabiles. Et quo ad hoc quod ipsa Agnes dicit quod ipsam eiecerunt de domibus et terris suis, dicunt quod predicta Agnes est natiua ipsius Willelmi et tenuit predicta tenementa in villenagio ad voluntatem ipsius Willelmi propter quod bene licebat eidem Willelmo ipsam de predicto tenemento ammouere. -- Juratores dicunt.... quod predicta tenementa sunt villenagium predicti Willelmi de Barentyn et quod predicta Agnes tenuit eadem tenementa ad voluntatem ipsius Willelmi.' Cf. Y.B. 12/13 Edw. III (ed. Pike), p. 233 sqq., 'or vous savez bien qe par ley de terre tout ceo qe le vileyn ad si est a soun seignour;' 229 sqq., 'qar cest sa terre demene, et il les puet ouster a sa volunte demene.'

7. Coram Rege, Mich., 3/4 Edw. I, m. I: 'Ricardus de Assheburnham summonitus fuit ad respondendum Petro de Attebuckhole et Johanni de eadem de placito quare, cum ipsi teneant quasdam terras et tenementa de predicto Ricardo in Hasseburnham ac ipsi parati sunt ad faciendum ei consuetudines et servicia que antecessores sui terras et tenementa illa tenentes facere consueverint, predictus Ricardus diversas commoditates quam ipsi tam in boscis ipsius Ricardi quam in aliis locis habere consueverint eisdem subtrahens ipsos ad intollerabiles servitutes et consuetudines faciendas taliter compellit quod ex sua duricia mendicare coguntur. Et unde queruntur quod, cum teneant tenementa Sua per certas consuetudines et certa servicia, et cum percipere consueverunt boscum ad focum et materiam de bosco crescente in propriis terris suis, predictus Ricardus ipsos non permittit aliquid in boscis suis capere et eciam capit aueria sua et non permittit eos terram suam colere. -- Ricardus dicit, quod non debet eis ad aliquam accionen respondere nisi questi essent de vita vel membris vel de iniuria facta corpori suo. Dicit eciam quod nativi sui sunt, et quod omnes antecessores sui nativi fuerunt antecessorum suorum et in villenagio suo manentes.'

8. Note-book of Bracton, pl. 1237: 'dominus Rex non vult se de eis intromittere.'

9. It occurs in the oldest extant Plea Roll, 6 Ric. I; Rot. Cur. Regis, ed. Palgrave, p. 84: 'Thomas venit et dicit quod ipsa fuit uxorata cuidam Turkillo, qui habuit duos filios qui clamabant libertatem tenementi sui in curia domini Regis... et quod ibi dirationavit eos esse villanos suos, et non defendit disseisinam... Et ipsi Elilda et Ricardus defendunt vilenagium et ponunt se super juratam,' etc.

10. Maitland, Select Pleas of the Crown (Selden Soc. I), pl. 3: 'Quendam nativum suum quem habuit in vinculis eo quod voluit fugere.' Bract. Notebook, pl. 1041: 'Petrus de Herefordia attachiatus fuit ad respondendum R. fil. Th. quare ipse cepit Ricardum et eum imprisonauit et coegit ad redempcionem I marce. Et Petrus venit alias et defendit capcionem et imprisonacionem set dicit quod villanus fuit,' etc. It must be noted, however, that in such cases it was difficult to draw the line as to the amount of bodily injury allowed by the law, and therefore the King's courts were much more free to interfere. In the trial quoted on p. 45, note 2, the defendants distinguish carefully between the accusation and the civil suit. They plead 'not guilty' as to the former. And so Bishop Stubbs' conjecture as to the 'rusticus verberatus' in Pipe Roll, 31 Henry I, p. 55 (Constit. Hist. I. 487), seems quite appropriate. The case is a very early one, and may testify to the better condition of the peasantry in the first half of the twelfth century.

11. As to the actual treatment experienced by the peasants at the hands of their feudal masters, see a picturesque case in Maitland's Select Pleas of the Crown (Selden Soc.), 203.

12. Stubbs, Constitutional History, ii. 652, 654; Freeman, Norman Conquest, v. 477; Digby, Introduction to the Law of Real Property, 244.

13. Sir Thomas Smith, The Commonwealth of England, ed. 1609, p. 123, shows that the notion of two classes corresponding to the Roman servus and the Roman adscriptus glebae had taken root firmly about the middle of the sixteenth century. 'Villeins in gross, as ye would say immediately bond to the person and his heirs... (The adscripti) were not bond to the person but to the mannor or place, and did follow him who had the mannors, and in our law are called villains regardants (sic), for because they be as members or belonging to the mannor or place. Neither of the one sort nor of the other have we any number in England. And of the first I never knew any in the Realme in my time. Of the second so fewe there bee, that it is not almost worth the speaking, but our law doth acknowledge them in both these sorts.'

14. Section 182 is not quite consistent with such an exposition, but I do not think there can be any doubt as to the general doctrine.

15. I need not say that the work done by Mr Horwood, and especially by Mr Pike, for the Rolls' Series quite fulfil the requirements of students. But in comparison with it the old year Books in Rastall's, and even more so in Maynard's edition, appear only the more wretchedly misprinted.

16. For instance, Liber Assisarum, ann. 44, pl. 4 (f 283): 'Quil fuit son villein et il seisi de luy come de son villein come regardant a son maneir de B. en la Counte de Dorset.'

17. Y.B. Hil. 5 Edw. II: 'Iohan de Rose port son [ne] vexes vers Labbe de Seint Bennet de Holme, et il counta qil luy travaille, etc., e luy demande.' Migg.: 'defent tort et force, ou et quant il devera et dit qil fuist le vilein Labbe, per qi il ne deveroit estre resceve.' Devom.: 'il covient qe vous disez plus qe vous estes seisi, ut supra,' etc. Migg.: ' il est nostre vileyn, et nous seisi de luy come de nostre vileyn.' Ber.; 'Coment seisi come,' etc.? Migg.: 'de luy et de ces auncestres come de nos vileynes, en fesant de luy nostre provost en prenant de luy rechate de char et de saunk et redemption pur fille et fitz marier de luy et de ces auncestres et a tailler haut et bas a nostre volente, prest,' etc. (Les reports des cases del Roy Edward le II, London, 1678; f 157.)

18. I do not think it ever came into any one's mind to look at the Plea Rolls in this matter. Even Hargrave, when preparing his famous argument in Somersett's case, carried his search no further than the Year Books then in print. And in consequence he just missed the true solution. He says (Howell's State Trials, xx. 42, 43), 'As to the villeins in gross the cases relative to them are very few; and I am inclined to think that there never was any great number of them in England.... However, after a long search, I do find places in the Year Books where the form of alledging villenage in gross is expressed, not in full terms, but in a general way; and in all the cases I have yet seen, the villenage is alledged in the ancestors of the person against whom it was pleaded.' And he quotes 1 Edw. II, 4; 5 Edw. II, 157 (corr. for 15); 7 Edw. II, 242, and 11 Edw. II, 344. But all these cases are of Edward II's time, and instead of being exceptional give the normal form of pleading as it was used up to the second quarter of the fourteenth century. They looked exceptional to Hargrave only because he restricted his search to the later Year Books, and did not take up the Plea Rolls. By admitting the cases quoted to indicate villainage in gross, he in fact admitted that there were only villains in gross before 1350 or thereabouts, or rather that all villains were alike before this time, and no such thing as the difference between in gross and regardant existed. I give in App. I the report of the interesting case quoted from I Edw. II.

19. Y. B. 32 /33 Edw. I (Horwood), p. 57: 'Quant un home est seisi de son vilein, issl. qil est reseant dans son vilenage.' Fitzherbert, Abr. Vill. 3 (39 Edw. III): '... villeins sunt appendant as maners qe sount auncien demesne.' On the other hand, 'regardant' is used quite independently of villainage. Y. B. 12/13 Edw. III (Pike), p. 133: 'come services regardaunts al manoir de H.'

20. Y.B. Hil. 14 Edw. II, f 417: 'R. est bailli... del manoir de Clifton... deins quel manoir cesti J. est villein.'

21. See App. I and II.

22. Y.B. Trin. 9 Edw. II, f 294: 'Le manoir de H. fuit en ascun temps en la seisine Hubert nostre ael, a quel manoir cest vileyn est regardant.'

23. Y.B. Trin. 29 Edw. III, f. 41. For the report of this case and the corresponding entry in the Common Pleas Roll, see Appendix II.

24. Cf. Annals of Dunstaple, Ann. Mon. Iii. 371: 'Quia astrarius eius fuit,' in the sense of a person living on one's land.

25. Bracton, f. 267, b.

26. Bract. Note-book, pl. 230, 951, 988. Cf. Spelman, Gloss. v. astrarius Kentish Custumal, Statutes of the Realm, i. 224. Fleta has it once in the sense of the Anglo-Saxon heord-faest, i. cap. 47, 10 (f. 62).

27. Bracton, f. 190.

Chapter 2

Rights and Disabilities of the Villain

Legal theory as we have seen endeavoured to bring the general conception of villainage under the principles of the Roman law of slavery, and important features in the practice of the common law went far to support it in so doing. On the other hand, even the general legal theory discloses the presence of an element quite foreign to the Roman conception. If we proceed from principles to their application in detail, we at once find, that in most cases the broad rules laid down on the subject do not fit all the particular aspects of villainage. These require quite different assumptions for their explanation, and the whole doctrine turns out to be very complex, and to have been put together out of elements which do not work well together.     We meet discrepancies and confusion at the very threshold in the treatment of the modes in which the villain status has its origin. The most common way of becoming a villain was to be born to this estate, and it seems that we ought to find very definite rules as to this case. In truth, the doctrine was changing. Glanville (v. 6) tried in a way to conform to the Roman rule of the child following the condition of the mother, but it could not be made to work in England, and ever since Bracton, both common law and jurisprudence reject it. At the close of the Middle Ages it was held that if born in wedlock the child took after his father,* and that a bastard was to be accepted as filius nullius and presumed free.* Bracton is more intricate; the bastard follows the mother, the legitimate child follows the father; and there is one exception, in this way, that the legitimate child of a free man and a nief born in villainage takes after the mother.* It is not difficult to see why the Roman rule did not fit; it was too plain for a state of things which had to be considered from three different sides.* The Roman lawyer merely looked to the question of status and decided it on the ground of material demonstrability of origin,* if such an expression may be used. The Medieval lawyer had the Christian sanctification of marriage to reckon with, and so the one old rule had to be broken up into two rules-one applicable to legitimate children, the other to bastards. In case of bastardy the tendency was decidedly in favour of retaining the Roman rule, equally suiting animals and slaves, and the later theory embodied in Littleton belongs already to the development of modern ideas in favour of liberty.* In case of legitimacy the recognition of marriage led to the recognition of the family and indirectly to the closer connexion with the father as the head of the family. In addition to this a third element comes in, which may be called properly feudal. The action of the father-rule is modified by the influence of territorial subjection. The marriage of a free man with a nief may be considered from a special point of view, if, as the feudal phraseology goes, he enters to her into her villainage.* By this fact the free man puts his child under the sway of the lord, to whose villainage the mother belongs. It is not the character of the tenement itself which is important in this case, but the fact of subjection to a territorial lord, whose interest it is to retain a dependant's progeny in a state of dependency. The whole system is historically important, because it illustrates the working of one of the chief ingredients of villainage, an ingredient entirely absent from ancient slavery; whereas medieval villainage depends primarily on subjection to the territorial power of the lord. Once more we are shown the practical importance of the manorial system in fashioning the state of the peasantry. Generally a villain must be claimed with reference to a manor, in connexion with an unfree hearth; he is born in a nest,* which makes him a bondman. The strict legal notion has to be modified to meet the emergency, and villainage, instead of indicating complete personal subjection, comes to mean subjection to a territorial lord.     This same territorial element not only influences the status of the issue of a marriage, it also affects the status of the parties to a marriage, when those parties are of unequal condition. Most notable is the case of the free wife of a villain husband lapsing into servitude, when she enters the villain tenement of her consort; her servitude endures as long as her husband is in the lord's power, as long as he is alive and not enfranchised. The judicial practice of the thirteenth century gives a great number of cases where the tribunals refuse to vindicate the rights of women entangled in villainage by a mesalliance.* Such subjection is not absolute, however. The courts make a distinction between acquiring possession and retaining it. The same woman who will be refused a portion of her father's inheritance because she has married a serf, has the assize of novel disseisin against any person trying to oust her from a tenement of which she had been seised before her marriage.* The conditional disabilities of the free woman are not directly determined by the holding which she has entered, but by her marital subordination to an unfree husband ('sub virga,' Bract. Note-book, pl. 1685), For this reason the position of a free husband towards the villainage of his wife a nief is not exactly parallel. He is only subject to the general rules as to free men holding in villainage.* In any case, however, the instances which we have been discussing afford good illustrations of the fact, that villainage by no means flows from the simple source of personal subjection; it is largely influenced by the Christian organisation of the family and by the feudal mixture of rights of property and sovereignty embodied in the manorial system.     There are two other ways of becoming a villain besides being born to the condition; the acknowledgment of unfree status in a court of record, and prescription. We need not speak of the first, as it does not present any particulars of interest from a historical point of view. As to prescription, there is a very characteristic vacillation in our sources. In pleadings of Edward III's time its possibility is admitted, and it is pointed out, that it is a good plea if the person claimed by prescription shows that his father and grandfather* were strangers.     There is a curious explanatory gloss, in a Cambridge MS. of Bracton, which seems to go back at least to the beginning of the fourteenth century, and it maintains that free stock doing villain service lapses into villainage in the fifth generation only.* On the other hand, Britton flatly denies the possibility of such a thing; according to him no length of time can render free men villains or make villains free men. Moreover he gives a supposed case (possibly based on an actual trial), in which a person claimed as a villain is made to go back to the sixth generation to establish his freedom,* It does not seem likely that people could often vindicate their freedom by such elaborate argument, but the legal assumption expounded in Britton deserves full attention. It is only a consequence of the general view, that neither the holding nor the services ought to have any influence on the status of a man, and in so far it seems legally correct. But it is easy to see how difficult it must have been to keep up these nice distinctions in practice, how difficult for those who for generations had been placed in the same material position with serfs to maintain personal freedom.* For both views, though absolutely opposed to each other, are in a sense equally true: the one giving the logical development of a fundamental rule of the law, the other testifying to the facts. And so we have one more general observation to make as to the legal aspect of villainage. Even in the definition of its fundamental principles we see notable discrepancies and vacillations, which are the result of the conflict between logical requirements and fluctuating facts.     The original unity of purpose and firmness of distinction are even more broken up when we look at the criminal and the police law where they touch villainage. In the criminal law of the feudal epoch there is hardly any distinction between free men and villains. In point of amercements there is the well-known difference as to the 'contenement' of a free landholder, a merchant and a villain, but this difference is prompted not by privilege but by the diversity of occupations. The Dialogus de Scaccario shows that villains being reputed English are in a lower position than free men as regards the presumption of Englishry and the payment of the murder-fine,* but this feature seems to have become obliterated in the thirteenth century. In some cases corporal punishment may have differed according to the rank of the culprit, and the formalities of ordeal were certainly different.* The main fact remains, that both villains and free men were alike able to prosecute anybody by way of 'appeal'* for injury to their life, honour, and even property,* and equally liable to be punished and prosecuted for offences of any kind. Their equal right was completely recognized by the criminal law, and as a natural sequence of this, the pleas of the crown generally omit to take any notice of the status of parties connected with them. One may read through Mr Maitland's collection of Pleas of the Crown edited for the Selden Society, or through his book of Gloucestershire pleas, without coming across any but exceptional and quite accidental mentions of villainage. In fact were we to form our view of the condition of England exclusively on the material afforded by such documents, we might well believe that the whole class was all but an extinct one. One glance at Assize Rolls or at Cartularies would teach us better. Still the silence of the Corona Rolls is most eloquent. It shows convincingly that the distinction hardly influenced criminal law at all.     It is curious that, as regards police, villains are grouped under an institution which, even by its name, according to the then accepted etymology, was essentially a free institution. The system of frank pledge (plegium liberale), which should have included every one 'worthy of his were and his wite,' is, as a matter of fact, a system which all through the feudal period is chiefly composed of villains. Free men possessed of land are not obliged to join the tithing because they are amenable to law which has a direct hold on their land,* and so the great mass of free men appear to be outside these arrangements, for the police representation of the free, or, putting it the other way, feudal serfs actually seem to represent the bulk of free society. The thirteenth-century arrangements do not afford a clue to such paradoxes, and one has to look for explanation to the his tory of the classes.     The frankpledge system is a most conspicuous link between both sections of society in this way also, that it directly connects the subjugated population with the hundred court, which is the starting-point of free judicial organisation. Twice a year the whole of this population, with very few exceptions, has to meet in the hundred in order to verify the working of the tithings. Besides this, the class of villains must appear by representatives in the ordinary tribunals of the hundred and the shire: the reeve and the four men, mostly unfree men,* with their important duties in the administration of justice, serve as a counterpoise to the exclusive employment of 'liberi et legales homines' on juries.     And now I come to the most intricate and important part of the subject -- to the civil rights and disabilities of the villain. After what has been said of the villain in other respects, one may be prepared to find that his disabilities were by no means so complete as the strict operation of general rules would have required. The villain was able in many cases to do valid civil acts, to acquire property and to defend it in his own name. It is true that, both in theory and in practice, it was held that whatever was acquired by the bondman was acquired by the lord. The bondman could not buy anything but with his lord's money, as he had no money or chattels of his own.* But the working of these rules was limited by the medieval doctrine of possession. Land or goods acquired by the serf do not eo ipso lapse into his lord's possession, but only if the latter has taken them into his hand.* If the lord has not done so for any reason, for want of time, or carelessness, or because he did not choose to do so, the bondman is as good as the owner in respect of third persons. He can give away* or otherwise alienate land or chattels, he has the assize of novel disseisin to defend the land, and leaves the assize of mort d'ancestor to his heirs. In this case it would be no good plea to object that the plaintiff is a villain. In fact this objection can be raised by a third person only with the addition that, as villain, the plaintiff does not hold in his own name, but in the name of his lord.* A third person cannot except against a plaintiff merely on the ground of his personal status. As to third persons, a villain is said to be free and capable to sue all actions.* This of course does not mean that he has any action for recovering or defending his possession of the tenements which he holds in villainage, but this disability is no consequence of his servile blood, for he shares it with the free man who holds in villainage; it is a consequence of the doctrine that the possession of the tenant in villainage is in law the possession of him who has the freehold. It may be convenient for a villain as defendant to shelter himself behind the authority of his lord,* and it was difficult to prevent him from doing so, although some attempts were made by the courts even in this case to distinguish whether a person had been in possession as a dependant or not. But there was absolutely nothing to prevent a villain from acting in every respect like a free man if he was so minded and was not interrupted by his lord. There was no need of any accessory action to make his acts complete and legal.* Again we come to an anomaly: the slave is free against everybody but his lord.     Even against his lord the bondman had some standing ground for a civil action. It has rightly been maintained, that he could implead his master in consequence of an agreement with him. The assertion is not quite easy to prove however, and has been put forward too sweepingly.* At first sight it seems even that the old law books, i.e. those of Bracton and his followers, teach the opposite doctrine. They deal almost exclusively with the case of a feoffment made by the lord to a villain and his heirs, and give the feoffee an action only on the ground of implied manumission. The feoffor enfranchises his serf indirectly, even if he does not say so in as many words, because he has spoken of the feoffee's heirs, and the villain has no other heirs besides the lord,* The action eventually proceeds in this case, because it is brought not by a serf but by a freed man. One difficult passage in Bracton points another way; it is printed in a foot-note.* There can be no doubt, that in it Bracton is speaking of a covenant made by the lord not with a free man or a freed man, but with a villain. This comes out strongly when it is said, that the lord, and not the villain, has the assize against intruders, and when the author puts the main question -- is the feoffor bound to hold the covenant or not? The whole drift of the quotation can be understood only on the fundamental assumption that we have lord and villain before us. But there are four words which militate against this obvious explanation; the words 'sibi et heredibus suis,' We know what their meaning is -- they imply enfranchisement and a freehold estate of inheritance. They involve a hopeless contradiction to the doctrine previously stated, a doctrine which might be further supported by references to Britton, Fleta and Bracton himself.* In short, if we accept them, we can hardly get out of confusion. Were our text of Bracton much more definitely and satisfactorily settled than it is,* one would still feel tempted to strike them out; as it is we have a text studded with interpolations and errors, and it seems quite certain that 'sibi et heredibus suis' has got into it simply because the compositor of Tottell's edition repeated it from the conclusion of the sentence immediately preceding, and so mixed up two cases, which were to be distinguished by this very qualification. The four words are missing in all the MSS. of the British Museum, the Bodleian and the Cambridge University Library,* I have no doubt that further verification will only confirm my opinion. On my assumption Bracton clearly distinguishes between two possibilities. In one case the deed simply binds the lord as to a particular person, in the other it binds him in perpetuity, and in this latter case, as there ought not to be any heirs of a bondman but the lord, bondage is annihilated by the deed. It is not annihilated when one person is granted a certain privilege as to a particular piece of land, and in every other respect the grantee and all his descendants remain unfree:* -- he has no freehold, but he has a special covenant to fall back upon. This seems to lie at the root of what Bracton calls privileged villainage by covenant as distinguished from villain socage.*     The reader may well ask whether there are any traces of such an institution in practice, as it is not likely that Bracton would have indulged in mere theoretical disquisitions on such an important point. Now it would be difficult to find very many instances in point; the line between covenant and enfranchisement was so easily passed, and an incautious step would have such unpleasant consequences for landlords, that they kept as clear as possible of any deeds which might indirectly destroy their claims as to the persons of their villains.* On the other hand, even privileged serfs would have a great difficulty in vindicating their rights on the basis of covenant if they remained at the same time under the sway of the lord in general. The difficulties on both sides explain why Fleta and Britton endorse only the chief point of Bracton's doctrine, namely, the implied manumission, and do not put the alternative as to a covenant when heirs are not mentioned. Still I have come across some traces in legal practice* of contracts in the shape of the one discussed. A very interesting case occurred in Norfolk in 1227, before Martin Pateshull himself. A certain Roger of Sufford gave a piece of land to one of his villains, William Tailor, to hold freely by free services, and when Roger died, his son and heir William of Sufford confirmed the lease. When it pleased the lord afterwards to eject the tenant, this latter actually brought an assize of novel disseisin and recovered possession. Bracton's marginal note to the case runs thus: 'Note, that the son of a villain recovered by an assize of novel disseisin a piece of land which his father had held in villainage, because the lord of the villain by his charter gave it to the son [i.e. to the plaintiff], even without manumission.'* The court went in this case even further than Bracton's treatise would have warranted: the villain was considered as having the freehold, and an assize of novel disseisin was granted; but although such a treatment of the case was perhaps not altogether sound, the chief point on which the contention rested is brought out clearly enough. There was a covenant, and in consequence an action, although there was no manumission; and it is to this point that the marginal note draws special attention.*     Again, we find in the beginning of Bracton's treatise a remark* which is quite out of keeping with the doctrine that the villain had no property to vindicate against his lord; it is contradicted by other passages in the same book, and deserves to be considered the more carefully on that account. Our author is enumerating the cases in which the serf has an action against his lord. He follows Azo closely, and mentions injury to life or to limb as one cause. Azo goes on to say that a plaint may be originated by intollerabilis injuria, in the sense of corporeal injury. Bracton takes the expression in a very different sense; he thinks that economic ruin is meant, and adds, 'Should the lord go so far as to take away the villain's very waynage, i.e. plough and plough-team, the villain has an action,' It is true that Bracton's text, as printed in existing editions, contains a qualification of this remark; it is said that only serfs on ancient demesne land are possessed of such a right. But the qualification is meaningless; the right of ancient demesne tenants was quite different, as we shall see by-and-by. The qualifying clause turns out to be inserted only in later MSS. of the treatise, is wanting in the better MSS., and altogether presents all the characters of a bad gloss.* When the gloss is removed, we come in sight of the fact that Bracton in the beginning of his treatise admits a distinct case of civil action on the part of a villain against his lord. The remark is in contradiction with the Roman as well as with the established English doctrine, it is not supported by legal practice in the thirteenth century, it is omitted by Bracton when he comes to speak again of the 'persona standi in judicio contra dominum.'* But there it is, and it cannot be explained otherwise than as a survival of a time when some part of the peasantry at least had not been surrendered to the lord's discretion, but was possessed of civil rights and of the power to vindicate them. The notion that the peasant ought to be specially protected in the possession of instruments of agricultural labour comes out, singularly enough, in the passage commented upon, but it is not a singular notion in itself. It occurs, as every one knows, in the clause of the Great Charter, which says that the villain who falls into the king's mercy is to be amerced 'saving his waynage.' We come across it often enough in Plea Rolls in cases against guardians accused of having wasted their ward's property. One of the special points in such cases often is, that a guardian or his steward has been ruining the villains in the ward's manors by destroying their waynage.* Of course, the protection of the peasant's prosperity, guaranteed by the courts in such trials, is wholly due to a consideration of the interests of the ward; and the care taken of villains is exactly parallel to the attention bestowed upon oaks and elms. Still, the notion of waynage is in itself a peculiar and an important one, and whatever its ultimate origin may be, it points to a civil condition which does not quite fall within the lines of feudal law.     Another anomaly is supplied by Britton. After putting the case as strongly as possible against serfs, after treating them as mere chattels to be given and sold, he adds, 'But as bondmen are annexed to the freehold of the lord, they are not devisable by testament, and therefore Holy Church can take no cognisance of them in Court Christian, although devised in testament.' (I. 197) The exclusion of villains is not peculiar to them; they share it with the greater part of landed possessions.' As all the courts of civil jurisdiction had been prohibited from holding jurisdiction as to testamentary matters, and the Ecclesiastical Courts were not permitted to exercise jurisdiction as to any question relating to freehold, there was no court which could properly take cognisance of a testamentary gift of land as such.'* The point to be noted is, that villains are held to be annexed to the freehold, although in theory they ought to be treated as chattels. The contradiction gives us another instance of the peculiar modification of personal servitude by the territorial element. The serf is not a colonus, he is not bound up with any particular homestead or plot of land, but he is considered primarily as a cultivator under manorial organisation, and for this reason there is a limitation on the lord's power of alienating him. Let it be understood, however, that the limitation in this case does not come before us as a remnant of independent rights of the peasant. It is imposed by those interests of the feudal suzerain and of the kin which precluded the possibility of alienating land by devise.*     An inquiry into the condition of villains would be altogether incomplete, if it did not touch on the questions of villain tenure and villain services. Both are intimately connected with personal status, as may be seen from the very names, and both have to be very carefully distinguished from it. I have had to speak of prescription as a source of villainage. Opinions were very uncertain in this respect, and yet, from the mere legal point of view, there ought not to have been any difficulty about the matter. Bracton takes his stand firmly on the fundamental difference between status and tenure in order to distinguish clearly between serfs and free men in a servile position.* The villain is a man belonging to his lord personally; a villain holding (villenagium) is land held at the will of the lord, without any certainty as to title or term of enjoyment, as to kind or amount of services. Serfs are mostly, though not necessarily, found on villain land; it does not follow that all those seated on villain land are serfs. Free men are constantly seen taking up a villenagium; they do not lose by it in personal condition; they have no protection against the lord, if he choose to alter their services or oust them from the holding, but, on the other hand, they are free to go when they please. There is still less reason to treat as serfs such free peasants as are subjected to base services, i.e. to the same kind of services and payments as the villains, but on certain conditions, not more and not less. Whatever the customs may be, if they are certain, not only the person holding by them but the plot he is using are free, and the tenure may be defended at law.*     Such are the fundamental positions in Bracton's treatise, and there can be no doubt that they are borne out in a general way by legal practice. But if from the general we turn to the particular, if we analyse the thirteenth-century decisions which are at the bottom of Bracton's teaching, we shall find in many cases notions cropping up, which do not at all coincide with the received views on the subject. In fact we come across many apparent contradictions which can be attributed only to a state of fermentation and transition in the law of the thirteenth century.     Martin of Bestenover's case is used by Bracton in his treatise as illustrating the view that tenure has no influence on status.* It was a long litigation, or rather a series of litigations. Already in the first year of King John's reign we hear of a final concord between John of Montacute and Martin of Bestenover as to a hundred acres held by the latter.* The tenant is ejected however, and brings an assize of mort d'ancestor against Beatrice of Montacute, who, as holding in dower, vouches her son John to warranty. The latter excepts against Martin as a villain. A jury by consent of the parties is called in, and we have their verdict reported three times in different records.* They say that Martin's father Ailfric held of John Montacute's father a hundred acres of land and fifty sheep besides, for which he had to pay 20s. a year, to be tallaged reasonably, when the lord tallaged his subjects, and that he was not allowed to give his daughter away in marriage before making a fine to the lord according to agreement. We do not know the decision of the judges in John's time, but both from the tenor of the verdict and from what followed, we may conclude that Martin succeeded in vindicating his right to the land. Proceedings break out again at the beginning of Henry III's reign.     In 1219 John of Montacute is again maintaining that Martin is his villain, in answer as it seems to an action de libertate probanda which Martin has brought against him. The court goes back to the verdict of the jury in John's time, and finds that by this verdict the land is proved to be of base tenure, and the person to be free. The whole is repeated again on a roll of 1220; whether we have two decisions, one of 1219 and the other of 1220, or merely two records of the same decision, is not very clear, nor is it very important. But there are several interesting points about this case. The decision in 1220 is undoubtedly very strong on the distinction between status and tenure: 'nullum erat placitum in curia domini Regis de villenagio corporis ipsius Martini nisi tantum de villenagio et consuetudinibus terre,' etc. As to tenure, the court delivers an opinion which is entitled to special consideration, and has been specially noticed by Bracton both in his Notebook and in his treatise. 'If Martin,' say the judges on the roll of 1219, 'wishes to hold the land, let him perform the services which his father has been performing; if not, the lord may take the land into his hands.'* The same thing is repeated almost literally on the roll of 1220. Bracton draws two inferences from these decisions. One is suggested by the beginning of the sentence; 'If Martin wishes to hold the land.' Both in the Note-book and in the treatise Bracton deduces from it, that holding and remaining on the land depended on the wish of Martin, who as a free man was entitled to go away when he pleased.* The judgment does not exactly say this, but as to the right of a free person to leave the land there can be no doubt.     The second conclusion is, that if a free man hold in villainage by villain services he cannot be ejected by the lord against his will, provided he is performing the services due from the holding. What Bracton says here is distinctly implied by the decisions of 1219 and 1220, which subject the lord's power of dealing with the land to a condition -- non-performance of services.* There can be no question as to the importance of such a view; it contains, as it were, the germ of copyhold tenure.* It places villainage substantially on the same footing as freehold, which may also be forfeited by discontinuance of the services, although the procedure for establishing a forfeiture in that case would be a far more elaborate one. And it must be understood that Bracton's deduction by no means rests on the single case before us. He appeals also to a decision of William Raleigh, who granted an assize of mort d'ancestor to a free man holding in villainage.* Unfortunately the original record of this case has been lost. The decision in a case of 1225 goes even further. It is an assize of novel disseisin brought by a certain William the son of Henry against his lord Bartholomew the son of Eustace. The defendant excepts against the plaintiff as his villain; the court finds, on the strength of a verdict, that he is a villain, and still they decide that William may hold the land in dispute, if he consents to perform the services; if not, he forfeits his land.* Undoubtedly the decision before us is quite isolated, and it goes against the rules of procedure in such cases. Once the exception proved, nothing ought to have been said as to the conditions of the tenure. Still the mistake is characteristic of a state of things which had not quite been brought under the well-known hard and fast rule. And the best way to explain it is to suppose that the judges had in their mind the more familiar case of free men holding in villainage, and gave decision in accordance with Martin of Bestenover v. Montacute, and the case decided by Raleigh.* All these instances go clean against the usually accepted doctrine, that holding in villainage is the same as holding at the will of the lord: the celebrated addition 'according to the custom of the manor' would quite fit them. They bring home forcibly one main consideration, that although in the thirteenth century the feudal doctrine of non-interference of the state between lord and servile tenantry was possessed of the field, its victory was by no means complete. Everywhere we come across remnants of a state of things in which one portion at least of the servile class had civil rights as well as duties in regard to the lord.     Matters were even more unsettled as to customs and services in their relation to status and tenure. What services, what customs are incompatible with free status, with free tenure? Is the test to be the kind of services or merely their certainty? Bracton remarks that the payment of merchet, i.e. of a fine for giving away one's daughter to be married, is not in keeping with personal freedom. But he immediately puts in a kind of retractation,* and indeed in the case of Martin of Bestenover it was held that the peasant was free although paying merchet. To tenure, merchet, being a personal payment, should have no relation whatever. In case of doubt as to the character of the tenure, the inquiry ought to have been entirely limited to the question whether rents and services were certain or not,* because it was established that even a free tenement could be encumbered with base services. In reality the earlier practice of the courts was to inquire of what special kind the services and customs were, whether merchet and fine for selling horses and oxen had been paid, whether a man was liable to be tallaged at will or bound to serve as reeve, whether he succeeded to his tenancy by 'junior right' (the so-called Borough English rule), and the like.     All this was held to be servile and characteristic of villainage.* I shall have to discuss the question of services and customs again, when I come to the information supplied by manorial documents. It is sufficient for my present purpose to point out that two contradictory views were taken of it during the thirteenth century; 'certain or uncertain?' was the catchword in one case; 'of what kind?' in the other. A good illustration of the unsettled condition of the law is afforded by the case Prior of Ripley v. Thomas Fitz-Adam. According to the Prior, the jurors called to testify as to services and tenures had, while admitting the payment of tallage and merchet, asked leave to take the advice of Robert Lexington, a great authority on the bench, whether a holding encumbered by such customs could be free.     The subject is important, not only because its treatment shows to what extent the whole law of social distinctions was still in a state of fermentation, but also because the classification of tenures according to the nature of customs may afford valuable clues to the origin of legal disabilities in economic and political facts. The plain and formal rule of later law, which is undoubtedly quite fitted to test the main issue as to the power of the lord, is represented in earlier times by a congeries of opinions, each of which had its foundation in some matter of fact. We see here a state of things which on the one hand is very likely to invite an artificial simplification, by an application of some one-sided legal conception of serfdom, while on the other hand it seems to have originated in a mixture and confusion of divers classes of serfs and free men, which shaded off into each other by insensible degrees.     The procedure in trials touching the question of status was decidedly favourable to liberty. To begin with, only one proof was accepted as conclusive against it -- absolute proof that the kinsfolk of the person claimed were villains by descent.* The verdict of a jury was not sufficient to settle the question,* and a man who had been refused an assize in consequence of the defendant pleading villainage in bar had the right notwithstanding such decision to sue for his liberty. When the proof by kinship came on, two limitations were imposed on the party maintaining servitude: women were not admitted to stand as links in the proof because of their frailty and of the greater dignity of a man, and one man was not deemed sufficient to establish the servile condition of the person claimed.* If the defendant in a plea of niefty, or a plaintiff in an action of liberty, could convincingly show that his father or any not too remote ancestor had come to settle on the lord's land as a stranger, his liberty as a descendant was sufficiently proved.* In this way to prove personal villainage one had to prove villainage by birth. Recognition of servile status in a court of record and reference to a deed are quite exceptional.     The coincidence in all these points against the party maintaining servitude is by no means casual; the courts proclaimed their leaning 'in favour of liberty' quite openly, and followed it in many instances besides those just quoted. It was held, for instance, that in defending liberty every means ought to be admitted. The counsel pleading for it sometimes set up two or three pleas against his adversary and declined to narrow his contention, thus transgressing the rules against duplicity of plea 'in favour of liberty.'* In the case of a stranger settling on the land, his liberty was always assumed, and the court declined to construe any uncertainty of condition against him.4 When villainage was pleaded in bar against a person out of the power of the lord, the special question was very often examined by a jury from the place where the person excepted to had been lately resident, and not by a jury from the country where he had been born.* This told against the lord, of course, because the jurors might often have very vague notions as to the previous condition of their new fellow-countryman.*     It would be impossible to say in what particular cases this partiality of the law is to be taken as a consequence of enlightened and humanitarian views making towards the liberation of the servile class, and in what cases it may be traced to the fact that an original element of freedom had been attracted into the constitution of villainage and was influencing its legal development despite any general theory of a servile character. There is this to be noticed in any case, that most of the limitations we have been speaking of are found in full work at the very time when villainage was treated as slavery in the books. One feature, perhaps the most important of all, is certainly not dependent on any progress of ideas, however complete the lord's power over the serf may have been, it was entirely bound up with the manorial organisation. As soon as the villain had got out of its boundaries he was regularly treated as a free man and protected in the enjoyment of liberty so long as his servile status had not been proved.* Such protection was a legal necessity, a necessary complement to the warranty offered by the state to its real free men. There could be no question of allowing the lord to seize on any person whom he thought fit to claim as his serf. And, again, if the political power inherent in the manor gave the lord A great privileges and immunities as to the people living under his sway, this same manorial power began to tell against him as soon as such people had got under the sway of lord B or within the privileged town C The dependant could be effectually coerced only if he got back to his unfree nest again or through the means of such kinsfolk as he had left in the unfree nest.* And so the settlement of disputed rights connected with status brings home forcibly two important positions: first the theory of personal subjection is modified in its legal application by influence in favour of liberty; and next this influence is not to be traced exclusively to moral and intellectual progress, but must be accounted for to a great extent by peculiarities in the political structure of feudalism.     One point remains to be investigated in the institution of villainage, namely modes in which a villain might become free. I have had occasion to notice the implied manumission which followed from a donation of land to a bondman and his heirs, which in process of time was extended to all contracts and concords between a lord and his serf. A villain was freed also, as is well known, by remaining for a year and a day on the privileged soil of a crown manor or a chartered town.* As to direct manumission, its usual mode was the grant of a charter by which the lord renounced all rights as to the person of his villain. Traces of other and more archaic customs may have survived in certain localities, but, if so, they were quite exceptional. Manumission is one of the few subjects touched by Glanville in the doctrine of villainage, and he is very particular as to its conditions and effects. He says that a serf cannot buy his freedom, because he has no money or goods of his own. His liberty may be bought by a third person however, and his lord may liberate him as to himself, but not as regards third persons. There seems to be a want of clearness in, if not some contradiction between these two last statements, because one does not see how manumission by a stranger could possibly be wider than that effected by the lord. Again, the whole position of a freed man who remains a serf as regards everybody but his lord is very difficult to realize, even if one does not take the later view into account, which is exactly the reverse, namely that a villain is free against everybody but his lord. I may be allowed to start a conjecture which will find some support in a later chapter, when we come to speak about the treatment of freedom and serfdom in manorial documents. It seems to me that Glanville has in mind liberation de facto from certain duties and customs, such as agricultural work for instance, or the payment of merchet. Such liberation would not amount to raising the status of a villain, although it would put him on a very different footing as to his lord.* However this may be, if from Glanville's times we come down to Bracton and to his authorities, we shall find all requirements changed, but distinct traces of the former view still lingering in occasional decisions and practices. There are frequent cases of villains buying their freedom with their own money,* but the practice of selling them for manumission to a stranger is mentioned both in Bracton's Treatise* and in his Notebook. A decision of 1226 distinctly repeats Glanville's teaching that a man may liberate his serf as to himself and not as to others. The marginal note in the Notebook very appropriately protests against such a view, which is certainly quite inconsistent with later practice.* Such flagrant contradictions between authorities which are separated barely by some sixty or seventy years, and on points of primary importance too, can only tend to strengthen the inference previously drawn from other facts -- that the law on the subject was by no means square and settled even by the time of Bracton, but was in every respect in a state of transition.

NOTES:

1. Littleton, sect. 188.

2. Bracton, ff. 5, 193, b.

3. I need not say that there were very notable variations in the history of the Roman rule itself (cf for instance, Puchta, Institutionen, 211), but these do not concern us, as we are taking the Roman doctrine as broadly as it was taken by medieval lawyers.

4. Mater certa est. Gai. Inst. I. 82. 3 See Fitz. Abr. Villenage, pl. 5 (43 Edw. III): 'Ou il allege bastardise pur ceo qe si son auncestor fuit bastard il ne puit estre villein, sinon par connusance.' There was a special reason for turning the tables in favour of bastardy, which is hinted at in this case. The bastard's parents could not be produced against a bastard. He had no father, and his mother would be no proof against him because she was a woman [Fitz. Abr. Vill. 37 (13 Edw. I), Par ce qe la feme ne puit estre admise pur prove par lour fraylte et ausi cest qi est demaunde est pluiz digne person qe un feme]. It followed strictly that he could be a villain by confession, but not by birth. The fact is a good instance of the insoluble contradictions in which feudal law sometimes involved itself.

5. Bracton, f 5: 'Servus ratione qui se copulaverit villanae in villenagio constitutae.' Bract. Note-book, 1839: 'Juratores dicunt quod predictus Aluredus habuit duos fratres Hugonem [medium] medio tempore natum et Gilibertum postnatum qui nunc petit, set Hugo cepit quamdam terram in uillenagio et duxit uxorem [uillanam] et in uillenagio illo procreauit quemdam filium qui ad huc superest.... Et bene dicunt quod... Iste Gilibertus propinquior heres eius est, ea racione quod filius Hugonis genitus fuit in uillenagio.' 2 Y.B. 30/31 Edw. I, p. 167 sqq.: 'Usage de Cornwall est cecy qe la ou neyfe deyt estre marier hors de maner ou ele est reseant, qe ele trovera seurte... de revenir a son ny ov ses chateux apres la mort de son baroun.' Bracton, f. 26, 'Quasi avis in nido.'

6. Bract. Note-book, pl. 702: 'Nota quod libera femina maritata uillano non recuperat partem alicuius hereditatis quamdiu uillanus uixerit.'

7. Bract. Note-book, pl. 1837: 'Nota quod mulier que est libera uel in statu libero saltem ad minus non debet disseisiri quin recuperare possit per assisam quamuis nupta fuerit uillano set hereditatem petere non poterit.' Bract. Note-book, pl. 1010: 'Et uillani mori poterunt per quod predicte sorores petere possint ius suum.' Fitzherb. Villen. 27 (P. 7 Edw. II.): 'Les femmes sont sans recouverie vers le seignior uiuant leur barons pur ce que ils sont villens.' Cf Bracton, f 202.

8. Another instance of the influence of marriage on the condition of con tracting parties is afforded by the enfranchisement of the wife in certain cases. The common law was, however, by no means settled as to this point. Y. B. 30/31 Edw. I, p. I67 sqq.: 'La ou le seygnur espouse sa neyfe, si est enfranchi pur tozjurs; secus est la ou un homme estrange ly espose, qe donk nest ele enfraunchi si non vivant Son baroun, et post mortem viri redit ad pristinum statum.' Fitzherb. Vill. 21 (P. 33 Edw. III): 'Si home espouse femme qe est son villein el est franke durant les espousailles. Mes quand son baron est mort el est in statu quo prius, et issint el puis estre villein a son fils demesne.' It is quite likely that gentlemen sometimes got into a state of moral bondage to their own bondwomen, and were even led to marriage in a few instances, but the law had not much to feed upon in this direction, I imagine.

9. Fitzherbert, Vill. 24 (H. 50 Edw. III; P. 40 Edw. III, 17): 'Si home demurt en terre tenue en villenage de temps dount, etc., il sera villen, et est bon prescripcion et encountre tel prescripcion est bon ple a dire qe son pere ou ayle fuit adventiffe,' etc. I suppose ayle here to be a simple error for ayl or ael, grandfather.

10. Cambridge Univ., Dd. vij. 6, f 231: 'Nota de tempore quo servus dicere poterit quia fecerlt consuetudines villanas racione tenementi non racione persone. Et sciendum, quod quamdiu servus poterit verificare stipitem suam liberam non dicitur nativus, set quam citius dominus dlcere poterit villicus noster est ex auo et tritauo, tunc primo desinit gaudere replicacione omnimoda et privilegio libertatis racione stipitis, ut si A. primo ingressus villenagium tenuerit de F. per villana servitia, deinde B. filius A., deinde C. filius B., deinde D. filius C., et sic tenuerint in villenagium de gradu in gradum usque ad quartum gradum de F. et heredibus suis, ille uillanus inuentus in quinto gradu descendente natiuus dicitur.' I am indebted for this passage to the kindness of Prof Maitland.

11. Britton, i. 196, 206.

12. Hale, Pleas of the Crown (ed. 1736), ii. 298, gives an interesting record from Edward I's reign, which shows that even the general theory was doubtful,

13. Dial. de Scacc. I. 10. p. 193: 'Ea propter pene quicumque sic hodie occisus reperitur, ut murdrum punitur, exceptis his quibus certa sunt ut diximus servilis condicionis indicia.' On the other hand the Dialogus lays stress on the fact, that if a villain's chattels get confiscated they go to the king and not to the lord (ii. 10. p. 222), but this is regarded as a breach of a general principle.

14. Glanville, xiv. I: 'Per ferrum callidum si fuerit homo liber, per aquam si fuerit rusticus.'

15. Lighter offences committed by the lord could not give rise to prosecution, but the persona standi in iudicio was admitted in a general way even in this case. A curious illustration of the different footing of villains in civil and criminal cases is afforded by a trial of Richard I's time. Richard of Waure brings an appeal against his man and reeve, Robert Thistleful, for conspiring with his enemies against his person. He offers to prove it against him, 'ut dominus, vel ut homo maimatus, sicut curia consideraverit.' Reeves were mostly villains, and the duty of serving as a reeve was considered as a characteristic of base condition. The lord probably goes to the King's court because he wants his man subjected to more severe punishment than he could inflict on him by his own power. (Rot. Cur. Regis Ricardi, 60.)

16. The lord had power over their property, but against everybody else they were protected by the criminal law.

17. Sometimes the system is used so as to enforce servitude. See Court Rolls of Ramsey Abbey. Augmentation Court Rolls, Edw. I, Portf 34, No. 46, m. 1 d. (Aylington): 'Adhuc dicunt quod Johannes filius Ricardi Dunning est tannator et manet apud Heyham, set dat per annum pro recognicione duos capones. Et quia potens est et habet multa bona, preceptum fuit Hugoni Achard et eius decennae ad ultimum visum ad habendum ipsum ad istam curiam, et non habuit. Ideo ipse et decenna sua in misericordia.' (This case is now being printed in Selden Soc. vol. Ii. p. 64.)

18. Bracton, 124 b: 'Quia omnis homo siue liber siue seruus, aut est aut debet esse in franco plegio aut de alicuius manupastu, nisi sit aliquis itinerans de loco in locum, qui non plus se teneat ad unum quam ad alium, vel quid habeat quod sufficiat pro franco plegio, sicut dignitatem vel ordinem vel liberum tenementum, vel in civitatem rem immobilem.' Nichols, Britton, i. 181, gives a note from Cambr. MS. Dd. vii. 6, to the effect that 'Villeins and naifs ought not to be in tithings, secundum quosdam.' This is certainly a misunderstanding, but it can hardly be accounted for either by the enfranchisement of the peasant or the decay of the frank pledge. I think the annotator may have seen the passages in Leg. Cnuti or Leg. Henrici I, which speak about free men joining the tithings, or speculated about the meaning of 'plegium liberale.' There could be no thought of excluding the villains in practice during the feudal period. As to the allusion in the Mirror of Justices, I shall refer to it in Appendix III.

19. See below, Essay I. chap. vi.

20. Bract. Note-book, pl. 1256: 'Et Ricardus dicit quod assisa non debet inde fieri quia predictus lohannes dedit terram illam cuidam uillano ipsius Ricardi, et ipse uillanus reddidit terram illam domino suo sicut emptam catallis domini sui, et quod ita ingressum habuit per uillanum illum in terram illam ponit se super iuratam.' Liber Assisarum, ann. 41. pl. 4. f 252. Shows that the statute de religiosis could be evaded by the lord entering into his villain's acquest. 'Levesque d'Exester port un Assise de no. diss. vers le tenaunt et Persey pur Leuesque en euidence dit, que un A. que fuit villeine le Evesque come de droit de sa Eglise purchase les tenements a luy et ses heyres et morust seisie, apres que mort entra B. come fitz et heire, sur que possession pur cause de villeinage entra Leuesque. Wich. Home de religion ne puit pas recoverer per assise terre si title de droit ne soit troue en luy, et ou le title que est trouue en Leuesque est pur cause de la purchace de son villein, en quel cas Leuesque ne fuit compellable de entre sil nust vola mes puit auer eu ses seruices, et le statute voit Quod terrae et tenementa ad manum mortuam nullo modo deueniant, per que il semble que nous ne possomus pas doner iudgement pur Leuesque en ceo cas. Sanke: de son villein ne puit il pas leuer ses seruices, ne accepter lesse par sa maine, car a ceo que ieo entend par acceptacion de homage ou de fealty per sa maine il serra enfraunchi, per quey necessite luy arcte dentre, et le statut nestoit pas fait mes de restreindre purchaus a faire de nouel, et non pas a defaire ceo qe fuit launcien droit dez eglises. Et sur ceo fuerent aiournes en common bank, et illonque le judgement done pur Leuesque sans difficultie,' etc. (See also the report of the same case in Y.B. Mich. 4I Edw. III, pl. 8. f 21.)

21. Bracton, f 25: 'Si... stipulatus sit servus sibi ipsi, et non domino, id non statim acquiritur domino, quamuis illud (corr. Ille) sit sub voluntate et potestate sua, antequam dominus apprehensus fuerit possessionem. Quod quidem impune facere poterit, si voluerit, propter exceptionem,' etc. Fitz. Abr. Vill. pl. 22 (Pasch. 35 Edw. III): 'Si le villen le roy purchase biens ou chatteux le properte de eux est en le roy sauns seisier. Mes auter est de auter home, etc. Mes sil purchas terre le roy doit seisier, etc. Car Thorp. dit que terre demurt terre tout temps, mes biens come boefs ou vache puit estre mange.'

22. Bracton, f 25 b: 'Sic constat, quod qui sub potestate alterius fuerit, dare poterit. Sed qualiter hoc cum ipse, qui ab aliis possidetur, nihil possidere possit? Ergo videtur quod nihil dare possit, quia non potest quis dare quod non habet, et nisi fuerit in possessione rei dandae. Respondeo, dare potest qui seisinam habet qualemcunque, et servus dare potest,' etc. In case of an execution for debt due to the king the goods of the villain were to be taken only when the lord's goods were exhausted. Dialog. de Scacc. Ii. 14. p. 229.

23. Bracton, f 190: 'Et non competit alicui hujusmodi exceptio de villenagio, praeterquam vero domino, nisi utrumque probet, scilicet quod villanus sit et teneat in villenagio, cum per hoc sequatur, quod ad ipsum non pertineat querela sive assisa, sed ad verum dominum, et ideo cadit assisa quantum ad personam suam et non quantum ad personam domini.' Cf Britton, i. 325.

24. Britton, i. 199; Littleton, 189; Bract. Note-book. pl. 1025: 'Assisa venit recognitura utrum una uirgata terre cum pertinenciis ln R. sit libera elemosina pertinens ad ecclesiam Magistri Iohannis de R. de R. an laicum feodum Gaufridi Beieudehe. Qui venit et dicit quod non debet inde assisa fieri quia antecessores sui feoffati.guerunt a conquestu Anglie ita quod tenerent de ecclesia illa et redderent ei per annum x. solidos..... Iuratores dicunt quod terra illa est feodum eiusdem ecclesie ita quod idem G. et antecessores sui semper tenuerunt de ecclesia... Et dicunt quod idem Gaufridus est natiuus Comitis Warenne et de eo tenet in uilenagio aliud tenementum. Postea uenit Gaufridus et cognouit quod est uillanus Comitis Warenne. Postea concordati sunt,' etc.

25. Example, Fitz. Abr. Villen. 16. The proper reply to such a plea is shown by Bract. Note-book, pl. 1833: 'Et Iohannes dicit quod hoc ei nocere non debet, quia quicquid idem dicat de uillenagio, ipsemet ut liber homo sine contradiccione domini sui terram illam dedit Iohanni del Frid patri istius Iohannis pro homagio et seruicio suo... Consideratum est quod predictus Iohannes recuperauit seisinam suam, et Richerus in misericordia.' Liber Assis. ann. 43. pl. I. f 265 gives the contrary decision: 'Lassise agarde et prise, per quel il fuit troue quil [le defendant] fuit villein al Counte... mes troue fuit ouster que le Counte ne fut unques seisie de la terre, ne onques claima riens en la terre, et troue fuit que le plaintif fuit seisie et disseisie. Et sur ceo, le quel le plaintif recouerer, Ou que le brief abateroit sont ajornes deuant eux mesmes a Westminster. A que jour per opinion de la Court le briefe abatu, per que le plaintif fuit non sue,' etc.

26. A different view is taken by Stubbs, i. 484.

27. Digby, Real Property, 3rd ed. p. 128. I may say at once that I fail to see any connexion between copyhold tenure and any express agreements between lord and villain.

28. Bracton, 192 b: 'Si autem dominus ita dederit sine manumissione, servo et heredibus suis tenendum libere, presumi poterit de hoc quod servum voluit esse liberum, cum aliter servus heredes habere non possit nisi cum libertate et ita contra dominum excipientem de villenagio competit ei replicatio.' Cf 23 b and Britton, i. 247; Fleta, 238; Littleton, secs. 205, 207.

29. Bracton, 24 b: 'Si autem in charta hoc tantum contineatur, habendum et tenendum tali (cum sit servus) per liberum servitium huiusmodi verba non faciunt servum liberum nec dant ei liberum tenementum... Quia tenementum nichil confert nec detrahit personae, nisi praecedat, ut dictum est, homagium vel manumissio, vel quod tantundem valet de concessione domini, scilicet quod villanus libere teneat et quiete et per liberum servitium, sibi et haeredibus suis. Si autem hoc solum dicatur, quod teneat per liberum servitium [sibi et heredibus suis], si ejectus fuerit a quocunque non recuperet per assisam noue disseisine, ut liberum tenementum, quia domino competit assisa et non villano. Si tamen dominus ipsum ejecerit, quaeritur, an contra dominum agere possit de conventione, cum prima facie non habet personam standi in judicio ad hoc, quod dominus teneat ei conventionem, videtur quod sic, propter factum domini sui, ut si agat de conventione, et dominus excipiat de servitute, replicare poterit de facto domini sui, sicut supra dicitur de feoffamento. Nec debent jura juvare dominum contra voluntatem suam, quia semel voluit conventionem, et quamvis damnum sentiat, non tamen fit ei injuria et ex quo prudenter et scienter contraxit cum servo suo, tacite renunciavit exceptionem villenagii.'

30. The freehold would be given and still, non recuperet per assisam no. diss. quia domino competit assisa et non villano.'

31. See my article, 'The Text of Bracton,' in the Law Quarterly Review, i. 189, et sqq.; and Maitland, Introduction to the Note-book of Bracton, 26 sqq.

32. The Cambridge MSS. have been inspected for me by Mr Maitland.

33. Comp. Bracton, f 194 b: 'Quia ex quo mentionem fecit de heredibus praesumitur vehementer, quod dominus voluit servum esse liberum quod quidem non esset, si de heredibus mentionem nonfecerit.'

34. Bracton, f 208 b: 'Est etiam villenagium non ita purum, sive concedatur libero homini vel villano ex conventione tenendum pro certis servitiis et consuetudinibus nominatis et expressis, quamvis servitia et consuetudines sunt villanae. Et unde si liber ejectus fuerit vel villanus manumissus vel alienatus (corr. alienus best MSS.) recuperare non poterunt ut liberum tenementum, cum sit villenagium et cadit assisa, vertitur tamen in juratam ad inquirendum de conventione propter voluntatem dimittentis et consensum, quia si quaerentes in tali casu recuperarint villenagium, non erit propter hoc domino lnjuriatum propter ipsius voluntatem et consensum, et contra voluntatem suam jura ei non subveniunt, quia si dominus potest villanum manumittere et feoffare multo fortius poterit ri quandam conventionem facere, et quia si potest id quod plus est, potest multo fortius id quod minus est.' We have here another difficulty with the text. The wording is so closely allied to the passage on 24 b. just quoted, and the last sentences seem to indicate so clearly that the case of a privileged villain is here opposed to manumission and feoffment, that the 'villanus manumissus vel alienus' looks quite out of place. Is it a later gloss? Even if it is retained, however, the passage points to a very material limitation of the lord's power. The holding in question can certainly not be described as being held 'at will'. To me the words in question look like a gloss or an addition, although very probably they were inserted early, perhaps by Bracton himself, who found it difficult to maintain consistently a villain's contractual rights against the lord. Another solution of the difficulty is suggested to me by Sir Frederick Pollock. He thinks 'villanus manumissus vel alienus, correct, and lays stress On the fact, that personal condition does not matter in this case: that even though the tenant be free or quoad that lord as good as free, the assize lies not and there shall only be an action on the covenant. If we accept this explanation which saves the words under suspicion, we shall have to face another difficulty: the text would turn from villanus (suus) to villanus alienus and back to villanus (suus) without any intimation that the subject under discussion had been altered.

35. The later practice is well known. Any agreement with a bondman led to a forfeiture of the lord's rights. It may be seen at a glance that such could not have been the original doctrine. Otherwise why should the old books lay such stress on the mention of heirs?

36. Besides the case from the Note-book which I discuss in the text, Bracton, f 199, is in point: 'Item esto quod villanus teneat per liberum servitium sibi tantum, nulla facta mentione de heredibus, si cum ejectus fuerit proferat assisam, et cum objecta fuerit exceptio villenagii, replicet quod libere teneat et petat assisam, non valebit replicatio, ex quo nulla mentio facta est de heredibus, quia liberum tenementum in hoc casu non mutat statum, si fuerit sub potestate domini constitutus. Ut in eodem itinere (in ultimo itinere Martini de Pateshull) in comitatu Essex, assisa noue disseisine, si Radulphus de Goggenhal.' The villain fails in his assize and there has been no manumission, still it seems admitted that in this case the villain has acquired liberum tenementum by the lord's act. How can this be except on the supposition that there is a covenant enforceable by the villain against the lord?

37. Bract. Note-book, pl. 1814: 'Nota quod filius villani recuperat per assisam noUe disseisine terram quam pater suus tenuit in villenagio quia dominus villani illam dedit filio suo per cartam suam eciam sine manumissione.'

38. F.W. Maitland tells me, that Concanen's Report of Rowe v. Brenton describes bond conventioners in Cornwall.

39. Bracton, f 6: 'Et in hoc legem habent contra dominos, quod stare possunt in judicio contra eos de vita et membris propter saevitiam dominorum, vel propter intollerabilem injuriam, ut si eos destruant, quod salvum non possit eis esse waynagium suum. [Hoc autem verum est de illis servis; qui tenent de antiquo dominico coronae, sed de aliis secus est, quia quandocunque placuerit domino, auferre poterit a villano suo waynagium suum et omnia bona sua.] Expedit enim reipublicae ne quis re sua male utatur.'

40. See my article in the L. Q. R., i. 195.

41. Bracton, f 196 202.

42. Coram Rege, 15 Edw. I, m. 18: '... licet habeant alia averia per que distringi possent distringit eos per averia de carucis suis quod est contra statutum domini Regis.' (Record Office.)

43. Spence, Equitable Jurisdiction, i. 136.

44. The Mirror of Justices, p. 110, follows Britton in this matter. This curious book is altogether very interesting on the subject of villeinage, but as its information is of a very peculiar stamp, I have not attempted to use it currently on the same level with other authorities. I prefer discussing it by itself in App. III.

45. Bracton, f 26 b, 200. Cf Bract. Note-book, pl. 141: 'Dicit quod tunc temporis scilicet in itinere iusticiariorum tenuit ipse quamdam terram in uillenagium quam emerat, et tunc coguouit quod terra illa fuit uillenagium, et precise defendit quod nunquam cognouit se esse uillanum.'

46. Britton, ii. 13; Y.B. 20/21 Edw. I, p. 41: 'Kar nent plus neit a dire, jeo tenk les tenements en vileynage de le Deen etc. ke neit a dire ke jeo tenk les tenements..... a la volunte le Deen etc.'

47. Bracton, f 168.

48. Ibid., f I99 b.

49. Palgrave, Rotuli Curiae Regis, ii. 192.

50. Placitorum Abbrev. 25, 29; Note-book, pl. 88. (The father is called Ailfricus in the Plea Roll Divers terms 2 John, 2 d., at the Record Office.)

51. Bract. Note-book, pl. 88.

52. Case 70: 'Consideratum est quod terra illa est uilenagium ipsius Hugonis (corr. Johannis), et quod si Martinus uoluerit terram tenere faciat consuetudines quas pater suus fecit, sin autem capiat terram suam in manum suam.'

53. Marginal remark in the Note-book to pl. 70: 'Nota quod liber homo potest facere uillanas consuetudines racione tenementi uillani set propter hoc non erit uillanus, quia potest relinquere tenementum.' Comp. Mr Maitland's note to the case.

54. Bracton, f 199 b: 'Unde videtur per hoc, quod licet liber homo teneat villenagium per villanas consuetudines, contra voluntatem suam ejici non debet, dum tamen facere voluerit consuetudines quae pertinent ad villenagium, et quae praestantur ratione villenagii, et non ratione personae.'

55. Cf. Blackstone's characteristic of copyholds: 'But it is the very condition of the tenure in question that the lands be holden only so long as the stipulated service is performed, quamdiu velint et possint facere debitum servitium et solvere debitas pensiones.' (Law Tracts, ii. 153.)

56. Bract. f 200.

57. Bract. Note-book, pl. 1103: 'Et ideo consideratum est quod Willelmus conuictus est de uilenagio et si facere uoluerit predictas consuetudines teneat illam bouatam terre per easdem consuetudines, sin autem faciat Bartholomeus de terra et de ipso Willelmo uoluntatem suam ut de uillano suo et ei liberatur Cf. Mr Maitland's note.

58. I should like to draw attention to one more case which completes the picture from another side. Bract. Note book, pl. 784: 'Symon de T. petit versus Adam de H. et Thomam P. quod faciant ei consuetudines et recta seruicia que ei facere debent de tenemento quod de eo tenent in uillenagio in T. Et ipsi ueniunt et cognoscunt quod uillani sunt. Et Symon concedit eis quod teneant tenementa sua faciendo inde seruicia quae pertinent ad uillenagium, ita tamen quod non dent plus in auxilium ad festum St. Mich. nec per annum quam duodecim denarios scilicet quilibet ipsorum et hoc nomine tallagii.' -- The writ of customs and services was out of place between lord and villain. The usual course was distraint. The case is clearly one of privileged villainage, but it is well to note that although the services are in one respect certain, the persons remain unfree.

59. Bracton, f 208 b.

60. Ibid., f 200.

61. Bract. Note-book, pl. 63: 'Dicunt quod idem W. nullum habuit liberum tenementum quia ipse uillanus fuit et fecit omnimoda uilenagia quia non potuit filiam suam maritare nec bouem suum uendere. 1819. R. de M. posuit se in magnam assisam Dom. Reg. In comitatu de consuetudinibus et seruiciis que Th. B. petit uersus eum, unde idem Th. exigebat ab eodem R. quod redderet ei de uillenagio per annum 19 den. et aruram trium dierum et messuram trium dierum... et gersumam pro filia sua maritanda et unam gallinam ad Natale et tot oua ad Pascha et tallagium et quod sit prepositus suus. Set quia illa sunt servilia et ad uillenagium spectancia et non ad liberum tenementum, consideratum est quod magna assisa non iacet inter eos, set fiat inquisicio per xii,' etc. Cf. 794, 1005, 1225, 1661.

62. Bract. Note-book, 281: 'Et Prior dicit quod in parte bene recordantur set in parte parum dicunt quia iuratores dixerunt quod debuit dare xii. den pro filia sua maritanda, et debuit plures alias consuetudines et petierunt respectum ut assensum habere possent a domino Roberto de Lexintona utrum hoc esset liberum tenementum ex quo sciunt quid debuit facere et quid non et nullum respectum habere potuerunt.'

63. Example-Bract. Note-book, pl. 1887. Fitzherbert, Abr. Villen. 38 (13 Ed. I): 'Quia predictus J. nullam probacionem producit neque sectam et cognoscit quod ille est in seisina... de patre predicti W. quem potuit produxisse ad probacionem, consideratum est quod predicti W. et R. liberi maneant.'

64. Bracton, f. 199. The jury came in only by consent of the parties.

65. Britton, i. 207; Fitzherbert, Abr. Villen. 37.

66. Court Rolls of Havering atte Bower, Essex, Augment. Off. Rolls, xiv. 38. (Curia-die Jovis proxima ante festum St. Bartholomaei Apostoli anno r. r. Ricardi II, 21mo.) 'Inquisicio... dicit... quod non est aliquis homo natiuus de sanguine ingressus feodum domini, set dicunt quod est quidam Johannes Shillyllg qui Sepius dictus fuerat natiuus. Et dicunt ultra quod qnidam Johannes Shillyng pater predicti Johannis fuit alienigena et quod predictus Johannes Shillyng quod ad eorum cognitionem est liber et libere condicionis et non natiuus.'

67. Fitzherbert, Abr. Villen. 32 (H. 19 Edw. II).

68. Ibid. 5 (13 Edw. I).

69. Fitzherbert, l.c.: 'E ce issu fuit trie par gents de paiis ou le maner est e nemi ou il nasquist par touts les justices.'

70. Rotuli Parliam. Ii. 192. Hargrave's argument in the Negro Somerset's case is very good on all these points. Howell, State Trials, xx. 38, 39.

71. Bracton, 201; Britton, i. 202 sq.

72. Bracton, f 6, and on many other occasions.

73. Co. Lit. 137, b. Cf. King Henry I's writ in favour of the Monastery of Abingdon. Bigelow, Placita Anglo-Normannica, 96: 'facias habere F. abbati omnes homines suos qui de terra sua exierunt propter herberiam curie mee.' Henry II puts it the other way, p 220.. 'Nisi sunt in dominio meo.'

74. A most curious pleading based on the conceptions of Glanville occurs in a Cor. Rege case of 10 Henry III, which was pointed out to me by F. Maitland. See App. IV. Mr York Powell suggests that the limitation may have originated in the fact, that in early times a man could no more give away a slave from his family estate without the consent of the family than he could give away the estate itself or part of it. There was no reason for such limitation in the case of a slave that had been bought with one's private money. Hence the necessity of selling a slave in order to emancipate him. The conjecture seems a very probable one, but the question remains, how such ancient practice could have left a trace in the feudal period. The explanation in the text may possibly account for the tenacity of the notion.

75. Note-book, pl. 31, 343.

76. Bracton, f. 194, 195. Bracton's text has been rendered almost unintelligible here by the careless punctuation of his editors, and Sir Travers Twiss' translation is as wrong and misleading as usual. I will just give the passage in accordance with the reading of Digby, 222 (Bodleian Libr.), which is the best of all the MSS. I have seen: 'Quia esto quod seruus uelit manumitti et cum nichil habeat proprium eligat fidem alicuius qui eum emat quasi pro denariis suis, per talem emptionem non consequitur emptus aliquam libertatem nisi tantum quod mutat dominum. In re empta in primis solui debet pretium, postea sequitur traditio rei: soluitur hic pretium pro natiuo, set nulla subsequitur traditio, sed semper manet in uillenagio quo prius. Si tenementum adquirat tenendum libere et heres manumissoris uel alius successor eum eiciat, si petat per assisam et heres opponat uillenagium, et villanus replicet de manumissione et emptione, heres triplicare poterit, quod imperfecta fuit emptio siue manumissio eo quod nunquam in uita uenditoris subsecuta fuit traditio, et ita talis semper remanebit sub potestate heredis.'

77. Note book, pl. 1749: 'Iudicatum est quod liber sit quantum ad heredem manumittentis et non quantum ad alios, quod iudicium non est uerum.'

Chapter 3

Ancient Demesne

The old law books mention one kind of villainage which stands out in marked contrast with the other species of servile tenure. The peasants belonging to manors which were vested in the crown at the time of the Conquest follow a law of their own. Barring certain exceptions, of which more will be said presently, they enjoy a certainty of condition protected by law. They are personally free, and although holding in villainage, nobody has the right to deprive them of their lands, or to alter the condition of the tenure, by increasing or changing the services. Bracton calls their condition one of privileged villainage, because their services are base but certain, and because they are protected not by the usual remedies supplied at common law to free tenants, but by peculiar writs which enforce the custom of the manor.(1*) It seems well worth the while to carefully investigate this curious case with a view to get at the reasons of a notable deviation from the general course, for such investigation may throw some reflected light on the treatment of villainage in the common law.     Legal practice is very explicit as to the limitation of ancient demesne in time and space. It is composed of the manors which belonged to the crown at the time of the Conquest.(2*) This includes manors which had been given away subsequently, and excludes such as had lapsed to the king after the Conquest by escheat or forfeiture.(3*) Possessions granted away by Saxon kings before the Conquest are equally excluded.(4*) In order to ascertain what these manors were the courts reverted to the Domesday description of Terra Regis. As a rule these lands were entered as crown lands, T.R.E. and T.R.W., that is, were considered to have been in the hand of King Edward in 1066, and in the hand of King William in 1086. But strictly and legally they were crown lands at the moment when King William's claim inured, or to use the contemporary phrase, 'on the day when King Edward was alive and dead.' The important point evidently was that the Norman king's right in this case bridged over the Conquest, and for this reason such possessions are often simply said to have been royal demesne in the time of Edward the Confessor. This legal view is well illustrated by a decision of the King's Council, quoted by Belknap, Chief Justice of the Common Pleas, in 1375. It was held that the manor of Tottenham, although granted by William the Conqueror to the Earl of Chester before the compilation of Domesday, was ancient demesne, as having been in the hands both of St. Edward and of the Conqueror.(5*) And so 1066 and not 1086 is the decisive year for the legal formation of this class of manors.(6*)     In many respects the position of the peasantry in ancient demesne is nearly allied to that of men holding in villainage at common law. They perform all kinds of agricultural services and are subject to duties quite analogous to those which prevail in other places; we may find on these ancient manors almost all the incidents of servile custom. Sometimes very harsh forms of distress are used against the tenants;(7*) forfeiture for non-performance of services and non-payments of rents was always impending, in marked contrast with the considerate treatment of free tenantry in such cases.(8*) We often come across such base customs as the payment of merchet in connexion with the 'villain socmen' of ancient demesne.(9*) And such instances would afford ample proof of the fact that their status has branched off from the same stem as villainage, if such proof were otherwise needed.     The side of privilege is not less conspicuous. The indications given by the law books must be largely supplemented from plea rolls and charters. The special favour shown to the population on soil of ancient demesne extends much further than a regulation of manorial duties would imply, it resolves itself to a large extent into an exemption from public burdens. The king's manor is treated as a franchise isolated from the surrounding hundred and shire, its tenants are not bound to attend the county court or the hundred moot,(10*) they are not assessed with the rest for danegeld or common amercements or the murder fine,(11*) they are exempted from the jurisdiction of the sheriff,(12*) and do not serve on juries and assizes before the king's justices;(13*) they are free from toll in all markets and custom-houses.(14*) Last, but not least, they do not get taxed with the country at large, and for this reason they have originally no representatives in parliament when parliament forms itself. On the other hand, they are liable to be tallaged by the king without consent of parliament, by virtue of his private right as opposed to his political right.(15*) This last privilege gave rise to a very abnormal state of things, when ancient demesne land had passed from the crown to a subject. The rule was, that the new lord could not tallage his tenants unless in consequence of a royal writ, and then only at the same time and in the same proportion as the king tallaged the demesnes remaining in his hand.(16*) This was an important limitation of the lord's power, and a consequence of the wish to guard against encroachments and arbitrary acts. But it was at the same time a curious perversion of sovereignty: -- the person living on land of this description could not be taxed with the county,(17*) and if he was taxed with the demesnes, his lord received the tax, and not the sovereign. I need not say that all this got righted in time, but the anomalous condition described did exist originally. There are traces of a different view by which the power of imposing tallage would have been vested exclusively in the king, even when the manor to be taxed was one that had passed out of his hand.(18*) But the general rule up to the fourteenth century was undoubtedly to relinquish the proceeds to the holder of the manor. Such treatment is eminently characteristic of the conception which lies at the bottom of the whole institution of ancient demesne. It is undoubtedly based on the private privilege of royalty. All the numerous exceptions and exemptions from public liabilities and duties flow from one source: the king does not want his land and his men to be subjected to any vexatious burdens which would lessen their power of yielding income.(19*) Once fenced in by royal privilege, the ancient demesne manor keeps up its private immunity, even though it ceases to be royal. And this is the second fact, with which one has to reckon. If the privileged villainage of ancient demesne is founded on the same causes as villainage pure and simple, the distinguishing element of 'privilege' is supplied to it by the private interest of the king. This seems obvious enough, but it must be insisted upon, because it guards against any construction which would pick out one particular set of rights, or one particular kind of relations as characteristic of the institution. Legal practice and later theory concerned themselves mostly with peculiarities of procedure, and with the eventuality of a subject owning the manor. But the peculiar modes of litigation appropriate to the ancient demesne must not be disconnected from other immunities, and the ownership of a private lord is to be considered only as engrafted on the original right of the king. With this preliminary caution, we may proceed to an examination of those features which are undoubtedly entitled to attract most attention, namely, the special procedure, which is put in action when questions arise in any way connected with the soil of ancient demesne.     Bracton says, that in such cases the usual assizes and actions do not lie, and the 'little writ of right close' must be used 'according to the custom of the manor.' The writ is a 'little and a close' one, because it is directed by the king to the bailiffs of the manor and not to the justices or to the sheriff.(20*)     It does not concern freehold estate, but only land of base though privileged tenure. An action for freehold also may be begun in a manorial court, but in that case the writ will be 'the writ of right patent' and not 'the little writ of right close.'(21*)     The exclusion of the tenants from the public courts is a self-evident consequence of their base condition; in fact, pleading ancient demesne in bar of an action is, in legal substance, the same thing as pleading villainage.(22*) Of course, an outlet was provided by the manorial writ in this case, and there was no such outlet for villains outside the ancient demesne; but as to the original jurisdiction in common law courts, jurisdiction that is in the first instance, the position was identical. Though legally self-evident, this matter is often specially noticed, and sometimes stress is laid on peculiarities of procedure, such as the inapplicability of the duel and the grand assize (23*) in land to ancient demesne, peculiarities which, however, are not universally found,(24*) and which, even if they were universally found, would stand as consequence and not as cause. This may be accounted for by the observation that the legal protection bestowed on this particular class of holdings, notwithstanding its limitations, actually imparted to them something of the nature of freehold, and led to a great confusion of attributes and principles. Indeed, the difficulty of keeping within the lines of privileged 'villainage' is clearly illustrated by the fact that the 'little writ,' with all its restrictions, and quite apart from any contention with the lord, recognises the tenant in ancient demesne as capable of independent action.     Villains, or men holding in villainage, have no writ, either manorial or extra-manorial, for the protection or recovery of their holdings, and the existence of such an action for villain socmen is in itself a limitation of the power of lord and steward, even when they are no parties to the case. And so the distinction between freehold and ancient demesne villainage is narrowed to a distinction of jurisdiction and procedure. This is so much the case that if, by a mere slip as it were, a tenement in ancient demesne has been once recovered by an assize of novel disseisin, the exclusive use of the 'little writ' is broken, and assizes will ever lie hereafter, that is, the tenement can be sued for as 'freehold' in common law courts.(25*) Surely this could happen only because the tenure in ancient demesne, although a kind of villainage, closely resembled freehold.     One has primarily to look for an explanation of these great privileges to manors, which had been granted by the king to private lords. On such lands the 'little writ' lay both when 'villain socmen' were pleading against each other,(26*) and when a socman was opposed to his lord as a plaintiff.(27*) This last eventuality is, of course, the most striking and important one. There were some disputes and some mistakes in practice as to the operation of the rule. The judges were much exercised over the question whether an action was to be allowed against the lord in the king's court. The difficulty was, that the contending parties had different estates in the land, the one being possessed of the customary tenancy in ancient demesne, and the other of the frank fee. There are authoritative fourteenth-century decisions to the effect that, in such an action, the tenant had the option between going to the court at Westminster or to the ancient demesne jurisdiction.(28*)     The main fact remains, that a privileged villain had 'personam standi in judicio' against his lord, and actually could be a plaintiff against him. Court rolls of ancient demesne manors frequently exhibit the curious case of a manorial lord who is summoned to appear, distrained, admitted to plead, and subjected to judgment by his own court.(29*) And as I said, one looks naturally to such instances of egregious independence, in order to explain the affinity between privileged villainage and freehold. The explanation would be insufficient, however, and this for two simple reasons. The passage of the manor into the hands of a subject only modifies the institution of ancient demesne, but does not constitute it; the 'little writ of right' is by no means framed to suit the exceptional case of a contention between lord and tenant; its object is also to protect the tenants against each other in a way which is out of the question where ordinary villainage is concerned. The two reasons converge, as it were, in the fact that the 'little writ of right' is suable in all ancient demesne manors without exception, that it applies quite as much to those which remain in the crown as to those which have been alienated from it.(30*) And this leads us to a very important deduction. If the affinity of privileged villainage and freehold is connected with the 'little writ of right' as such, and not merely with a particular application of it, if the little writ of right is framed for all the manors of ancient demesne alike, the affinity of privileged villainage and freehold is to be traced to the general condition of the king's manors in ancient demesne.(31*)     Although the tenants in ancient demesne are admitted to use the 'little writ of right' only, their court made it go a long way; and in fact, all or almost all the real actions of the common law had their parallel in its jurisdiction. The demandant, when appearing in court, made a protestation to sue in the nature of a writ of mort d'ancestor or of dower(32*) or the like, and the procedure varied accordingly, sometimes following very closely the lines of the procedure in the high courts, and sometimes exhibiting tenacious local usage or archaic arrangements.(33*)     Actions as to personal estate could be pleaded without writ, and as for the crown pleas they were reserved to the high courts.(34*) But even in actions regarding the soil a removal to these latter was not excluded.(35*) Evocation to a higher court followed naturally if the manorial court refused justice and such removal made the land frank fee.(36*) The proceedings in ancient demesne could be challenged, and thereupon a writ of false judgment brought the case under the cognizance of the courts of common law. If on examination an error was found, the sentence of the lower tribunal was quashed and the case had to proceed in the higher.(37*) instances of examination and revision are frequent in our records.(38*) The examination of the proceedings by the justices was by no means an easy matter, because they were constantly confronted by appeals to the custom of the manor and counter appeals to the principles of the common law of England. It was very difficult to adjust these conflicting elements with nicety. As to the point of fact, whether an alleged custom was really in usage or not, the justices had a good standing ground for decision. They asked, as a rule, whether precedents could be adduced and proved as to the usage;(39*) they allowed a great latitude for the peculiarities of customary law; but the difficulty was that a line had to be drawn somewhere.(40*) This procedure of revision on the whole is quite as important a manifestation of the freehold qualities of privileged villainage as pleading by writ. Men holding in pure villainage also had a manorial court to go to and to plead in, but its judicial organisation proceeded entirely from the will and power of the lord, and it ended where his will and power ended; there was no higher court and no revision for such men. The writ of false judgment in respect of tenements in ancient demesne shows conclusively that the peculiar procedure provided for the privileged villains was only an instance and a variation of the general law of the land, maintaining actionable rights of free persons. And be it again noted, that there was no sort of difference as to revision between those manors which were in the actual possession of the crown and those which were out of it.(41*) Revision and reversal were provided not as a complement to the legal protection of the tenant against the lord, but as a consequence of that independent position of the tenant as a person who has rights against all men which is manifested in the parvum breve.(42*) It is not without interest to notice in this connexion that the parvum breve is sometimes introduced in the law books, not as a restriction put upon the tenant, nor as the outcome of villainage, but as a boon which provides the tenant with a plain form of procedure close at hand instead of the costly and intricate process before the justices.(43*)     If protection against the lord had been the only object of the procedure in cases of ancient demesne, one does not see why there should be a 'little writ' at all, as there was a remedy against the lord's encroachments in the writ of 'Monstraverunt,'(45*) pleaded before the king's justices. As it is, the case of disseisin by the lord, to whom the manor had come from the crown, was treated simply as an instance of disseisin, and brought under the operation of the writ of right, while the 'Monstraverunt' was restricted to exaction of increased services and change of customs.(46*) The latter writ was a very peculiar one, in fact quite unlike any other writ. The common-law rule that each tenant in severalty has to plead for himself did not apply to it; all join for saving of charges, albeit they be several tenants.(46*) What is more, one tenant could sue for the rest and his recovery profited them all; on the other hand, if many had joined in the writ and some died or withdrew, the writ did not abate for this reason, and even if but one remained able and willing to sue he could proceed with the writ.(47*) These exceptional features were evidently meant to facilitate the action of humble people against a powerful magnate.(48*) But it seems to me that the deviation from the rules governing writs at common law is to be explained not only by the general aim of the writ, but also by its origin.     In form it was simply an injunction on a plaint. When for some reason right could not be obtained by the means afforded by the common law, the injured party had to apply to the king by petition. One of the most common cases was when redress was sought for some act of the king himself or of his officers, when the consequent injunction to the common law courts or to the Exchequer to examine the case invariably began with the identical formula which gave its name to the writ by which privileged villains complained of an increase of services; monstravit or mons traverunt N. N.; ex parte N. N. ostensum est: -- these are the opening words of the king's injunctions consequent upon the humble remonstrations of his aggrieved subjects.(49*) Again, we find that the application for the writ by privileged villains is actually described as a plaint.(50*) In some cases it would be difficult to tell on the face of the initiatory document, whether we have to do with a 'breve de monstraverunt' to coerce the manorial lord, or with an extraordinary measure taken by the king with a view to settling his own interests.(51*)     And this brings me to the main point. Although the writ under discussion seems at first sight to meet the requirement of the special case of manors alienated from the crown, on closer inspection it turns out to be a variation of the peculiar process employed to insist upon a right against the crown. Parallel to the 'Monstraverunt' against a lord in the Common Pleas we have the 'Monstraverunt' against the king's bailiff in the Exchequer. The following mandate for instance is enrolled in the eventful year 1265: 'Monstraverunt Regi homines castri sui de Brambur et Schotone quod Henricus Spring constabularius castri de Brambur injuste distringit eos ad faciendum alia servicia et alias consuetudines quam facere consueverunt temporibus predecessorum Regis et tempore suo. Ideo mandatum est vicecomiti quod venire etc. predictum Henricum a die Pasche in xv dies ad respondendum Regi et predictis hominibus de predicta terra et breve etc.'(52*) There is not much to choose between this and the enrolment of a 'breve de monstraverunt' in the usual sense beyond the fact that it is entered on a Roll of Exchequer Memoranda. In 1292 a mandate of King Edward I to the Barons of the Exchequer is entered in behalf of the men of Costeseye in Norfolk who complained of divers grievances against Athelwald of Crea, the bailiff of the manor. The petition itself is enrolled also, and it sets forth, that whereas the poor men of the king of the base tenure in the manor of Costeseye held by certain usages, from a time of which memory runs no higher, as well under the counts of Brittany as under the kings to whom the manor was forfeited, now bailiff Athelwald distrains them to do other services which ought to be performed by pure villains. They could sell and lease their lands in the fields at pleasure, and he seizes lands which have been sold in this way and amerces them for selling; besides this he makes them serve as reeves and collectors, and the bailiff of the late Queen Eleanor tallaged them from year to year to pay twenty marks, which they were not bound to do, because they are no villains to be tallaged high and low.(53*) Such is the substance of this remarkable document, to which I shall have to refer again in other connexions. What I wish to establish now is, that we have on the king's own possessions the exact counterpart of the 'breve de monstraverunt.' The instances adduced are perhaps the more characteristic because the petitioners had not even the strict privilege of ancient demesne to lean upon, as one of the cases comes from Northumberland, which is not mentioned in Domesday, and the other concerns tenants of the honour of Richmond.     There can be no doubt that the tenantry on the ancient demesne had even better reasons for appealing to immemorial usage, and certainly they knew how to urge their grievances. We may take as an instance the notice of a trial consequent upon a complaint of the men of Bray against the Constable of Windsor. Bray was ancient demesne and the king's tenants complained that they were distrained to do other services than they were used to do. The judgment was in their favour.(54*)     The chief point is that the writ of 'Monstraverunt' appears to be connected with petitions to the king against the exactions of his officers, and may be said in its origin to be applicable as much to the actual possessions of the crown as to those which had been granted away from it. This explains a very remarkable omission in our best authorities. Although the writ played such an important part in the law of ancient demesne, and was so peculiar in its form and substance, neither Bracton nor his followers mention it directly. They set down 'the little writ of right close' as the only writ available for the villain socmen. As the protection in point of services is nevertheless distinctly affirmed by those writers, and as the Monstraverunt appears in full working order in the time of Henry III and even of John,(55*) the obvious explanation seems to be that Bracton regarded the case as one not of writ but of petition, a matter, we might say, rather for royal equity than for strict law. Thus both the two modes of procedure which are distinctive of the ancient demesne, namely the 'parvum breve' and the 'Monstraverunt,' though they attain their full development on the manors that have been alienated, seem really to originate on manors which are in the actual possession of the crown.     If we now examine the conditions under which the manors of the ancient demesne were alienated by the crown, we shall at once see that no very definite line could be drawn between those which had been given away and those which remained in the king's hand. The one class gradually shades off into the other. A very good example is afforded by the history of Stoneleigh Abbey. In 1154 King Henry II gave the Cistercian monks of Radmore in Staffordshire his manor of Stoneleigh in exchange for their possessions in Radmore. The charter as given in the Register of the Abbey seems to amount to a complete grant of the land and of the jurisdiction. Nevertheless, we find Henry II drawing all kinds of perquisites from the place all through his reign, and it is specially noticed that his writs were directed not to the Abbot or the Abbot's bailiffs, but to his own bailiffs in Stoneleigh.(56*) In order to get rid of the inconveniences consequent upon such mixed ownership, Abbot William of Tyso bought a charter from King John, granting to the Abbey all the soke of Stoneleigh.(57*) But all the same the royal rights did not yet disappear. There were tenants connected with the place who were immediately dependent on the king,(58*) and his bailiff continued to exercise functions by the side of, and in conjunction with, the officers of the Abbot.(59*) In the 50th year of Henry III a remarkable case occurred: -- a certain Alexander of Canle was tried for usurping the rights of the Abbot as to the tenantry in the hamlet of Canle, and it came out that one of his ancestors had succeeded in improving his position of collector of the revenue into the position of an owner of the rents. Although the rights which were vindicated against him were the rights of the Abbot, still the king entered into possession and afterwards transferred the possession to the Abbot.(60*) In one word, the king is always considered as 'the senior lord' of Stoneleigh; his lordship is something more direct than a mere feudal over-lordship.(61*)     We find a similar state of things at King's Ripton. The manor had been let in fee farm to the Abbots of Ramsey. In case of a tenement lapsing into the lord's hands, it is seized sometimes by the bailiff of the king, sometimes by the bailiffs of the Abbot.(62*) The royal writs again are directed not to the Abbot, but to his bailiff. The same was the case at Stoneleigh,(63*) and indeed this seems to have been the regular course on ancient demesne manors.(64*) This curious way of ignoring the lord himself and addressing the writ directly to his officers seems an outcome of the fundamental assumption that of these manors there was no real lord but the king, and that the private lord's officers were acting as the king's bailiffs.     According to current notions the demesnes of the crown ought not to have been alienated at all. Although alienated by one king they were considered as liable to be resumed by his successors.(65*) And as a matter of fact such resumptions were by no means unusual. Edward I gave an adequate expression to this doctrine when he ordered an inquisition into the state of the tenantry at Stoneleigh: -- he did not wish any encroachment made on the old constitution of the manor, for he had always in mind the possibility that his royal rights would be resumed by himself or by one of his successors.(66*)     If we turn to the court rolls of a manor which is actually in the king's hand and compare them with those of a manor which he has granted to some convent or some private lord, we see hardly any difference between them. The rolls of the manor of Havering at the Record Office, although comparatively late, afford a good insight into the constitution of a manor retained in the king's own hand. They contain a good many writs of right, and though, naturally enough, the tenants do not bring actions against the king, we find an instance in which the king brings an action against his tenant, and pleads before a court which is held in his own name.(67*) This is good proof that the condition of the tenants was by no means dependent on the arbitrary action of the manorial officers. When King Henry II granted Stoneleigh to the Cistercians he displaced a number of 'rustics' from their holdings, and while doing this he recognised their right and enjoined the sheriff of Warwickshire to give them an equivalent for what they had lost in consequence of the grant.(68*) The notion from which all inquiry consequent upon a 'Monstraverunt' starts is always this, that the tenants were holding by certain (i.e. by fixed) services at the time when the manor was in the king's own hand. The certainty is not created by the fact that the manor passes away from the king to some one else; it exists when the land is royal land and therefore cannot be destroyed on land that has been alienated. So true is this that Bracton and Britton give their often cited description of privileged villainage without alluding to the question whether or no the manor is still in the king's hand;(69*) Britton even applies this description primarily to the king's own possessions by his way of stating the law as the direct utterance of the king's command. The well-known fact that the 'ferm' or rent of royal manors was not always fixed, that we constantly hear of an increased rental (incrementum) levied in addition to the old 'ferm', (assisa redditus antiquitus assisus), can be easily reconciled with this doctrine.(70*) The prosperity of the country was gradually rising; both in agricultural communities and in towns new tenements and houses, new occupations and revenues were growing, and it was not the interest either of the communities or of the lord to compress this development within an unelastic bond. In principle the increased payments fell on this new growth on the demesne, although this may in some cases have been due to exactions against which the people could remonstrate only in the name of immemorial custom, and only by way of petition since nobody could judge the king. In principle, too, certainty of condition was admitted as to the privileged villains on the king's demesnes.(71*)     This serves to explain the procedure followed by the court when a question of services was raised by a writ of 'Monstraverunt.' The first thing, of course, was to ascertain whether the manor was ancient demesne or not, and for this purpose nothing short of a direct mention in Domesday was held to be sufficient.(72*) When this question had been solved in the affirmative, a jury had to decide what the customs and duties were, by which the ancestors of the plaintiffs held at the time when the crown was possessed of the manor. In principle it was always considered that such had been the services at the time of the Conquest,(73*) but practically, of course, there could be no attempt to examine into such ancient history. The men of King's Ripton actually pleaded back to the time of King Cnut, and maintained that no prescription was available against their rights as no prescription could avail against the king.(74*) The courts naturally declined to go higher than men could remember, but they laid down this limitation entirely as one of practice and not of principle.(75*) Metingham demanded that the claimants should make good their contention even for a single day in Richard Coeur de Lion's time.(76*) The men of Wycle combine both assertions in their contention against Mauger; they appeal to the age of the first Norman kings, but offer to prove the certainty of their services in the reigns of Richard and John.(77*)     Now all that has been said hitherto applied to 'the tenants in ancient demesne' indiscriminately, without regard to any diversity of classes among them. Hitherto I have not noticed any such diversity, and in so doing I am warranted by the authorities. Those authorities commonly speak of 'men' or 'tenants in ancient demesne' without any further qualification.(78*) Sometimes the expression 'condition of ancient demesne' also is used. But closer examination shows a variety of classes on the privileged soil, and leads to a number of difficult and interesting problems.     To begin with, the nature of the tenancy in general has been much contested. As to the law of later times Mr Elton puts the case in this way: 'There is great confusion in the law books respecting this tenure. The copyholders of these manors are sometimes called tenants in ancient demesne, and land held in this tenure is said to pass by surrender and admittance. This appears to be inaccurate. It is only the freeholders who are tenants in ancient demesne, and their land passes by common law conveyances without the instrumentality of the lord. Even Sir W. Blackstone seems to have been misled upon this point. There are however, as a rule, in manors of ancient demesne, customary freeholders and sometimes copyholders at the will of the lord, as well as the true tenants in ancient demesne.'(79*) Now such a description seems strangely out of keeping with the history of the tenure. Blackstone speaks of privileged copyhold as descended from privileged villainage;(80*) and as to the condition in the thirteenth century of those 'men' or 'tenants in ancient demesne' of whom we have been speaking, there can be no doubt. Bracton and his followers lay down quite distinctly that their tenure is villainage though privileged villainage. The men of ancient demesne are men of free blood holding in villainage.(81*) And to take up the special point mentioned by Mr Elton -- conveyance by surrender and admittance is a quite necessary feature of the tenure:(82*) conveyance by charter makes the land freehold and destroys its ancient demesne condition.(83*) But although this is so clear in the authorities of the thirteenth century, there is undoubtedly a great deal of confusion in later law books, and reasons are not wanting which may account for this fact and for the doctrine propounded by Mr Elton in conformity with certain modern treatises and decisions.     We may start with the observation, that privileged villains or villain socmen are not the only people to be found on the soil of the ancient demesne. There are free tenants there and pure villains too.(84*) Free socage is often mentioned in these manors, and it is frequently pleaded in order to get a trial transferred to the Common Law Courts. When the question is raised whether a tenement is free or villain socage, the fact that it has been conveyed by feoffment and charter is treated, as has just been pointed out, as establishing its freehold character and subjecting it to the ordinary common law procedure.(85*) On the other hand, registers and extents of ancient demesne manors sometimes treat separately of 'nativi' or 'villani' as distinguished from the regular customary tenants, and describe their services as being particularly base.(86*) In trials it is quite a common thing for a lord, when accused of having altered the services, to plead that the plaintiffs were his villains to be treated at will. Attempts were made in such cases to take advantage of the general term 'men of ancient demesne,' and to argue that all the population on the crown manors must be of the same condition, the difference of rank applying only to the amount and the kind of services, but not to their certainty, which ought to be taken for granted.(87*) But strictly and legally the lord's plea was undoubtedly good: the courts admitted it, and when it was put forward proceeded to examine the question of fact whether the lord had been actually seised of certain or of uncertain services.(88*) It is of considerable importance to note that the difference between villains pure and villains privileged was sometimes connected with the distinction between the lord's demesne and the tenant's land in the manor.(89*) The demesne proper was frank fee in the hands of the lord, and could be used by him at his pleasure. If he chose to grant it away to villains in pure villainage, the holdings thus formed could have no claim to rank as privileged land. It was assumed that some such holdings had been formed at the very beginning, as it were, that is at a time beyond memory of man, but tenements at will could be created at a later time on approved waste or on soil that had escheated to the lord and in this way passed through his demesne.(90*) One of the reasons of later confusion must be looked for in the fact that the pure villain holdings gradually got to be recognised at law as copyhold or base customary tenures. They were thus brought dangerously near to ancient demesne socage, which was originally nothing but base customary tenure. The very fact of copyhold thus gaining on villain socage may have pushed this last on towards freehold. Already the Old Natura Brevium does not know exactly how to make distinctions. It speaks of three species of socagefree, ancient demesne, and base. The line is soon drawn between the first two, but the third kind is said to be held by uncertain services, and sued by writ of 'Monstraverunt' instead of having the writs of right and 'Monstraverunt' of ancient demesne socage.(91*) Probably what is meant is a species of copyhold which is not socage, and the writ of 'Monstraverunt' attributed to it may perhaps be the plaint or petition which is the initial move in a suit for the protection of copyhold in the manorial court.     In the time of Henry III and of the Edwards the nature of ancient demesne tenure was better understood. At the close of the thirteenth century the lawyers distinguish three kinds of men-free, villains, and socmen.(92*) In order to be quite accurate people spoke of villain socmen or little socage(93*) in opposition to free. But even at that time there were several confusing features about the case. The certainty of condition made the tenure of the villain socmen so like a freehold that it was often treated as such in the manorial documents. In the Stoneleigh Register the peculiar nature of socage in ancient demesne is described fully and clearly. It is distinguished in so many words from tenancy at will, and a detailed description of conveyance by surrender in contrast with conveyance by charter seems to give the necessary material for the distinction between it and freehold.(94*) But still the fundamental notion of free men holding in villainage gets lost sight of. Only some of the cottiers are said to hold in villainage. The more important tenants, the socmen holding virgates and half-virgates, are not only currently described as freeholders in the Register, but they are entered as such on the Warwickshire Hundred Roll.(95*) The term 'parva sokemanria' is applied in the Stoneleigh Register only to a few subordinate holdings which are undoubtedly above the level of pure villainage, but cannot be definitely distinguished from the other kinds of socage in the Register. This may serve as an indication of the tendency of manorial communities to consider privileged villainage as a free tenure, but legal pleadings and decisions were also cresting confusion for another reason, because they tended, as has been said, to consider the whole body of men on the ancient demesne in one lump as it were. The courts very often applied as the one test of tenure and service the question whether a person was a descendant by blood of men of ancient demesne or a stranger.(96*) In connexion with this the court rolls testify to the particular care taken to control any intrusion of strangers into the boundaries of a privileged manor.(97*) This was done primarily in the interests of the lord, but the tenantry also seem to have sometimes been jealous of their prerogatives,(98*) and it is only in the course of the fourteenth century that they begin to open their gates to strangers, 'adventicii.'(99*) However this may be, the practice of drawing the line between native stock and strangers undoubtedly countenanced the idea that all the tenants of native stock were alike, and in this way tended to confuse the distinction between freeholders, pure villains, and villain socmen.     The courts made several attempts to insist on a firm classification, but some of these were conceived in such an unhappy spirit that they actually embroiled matters. The conduct of the king's judges was especially misdirected in one famous case which came up several times before the courts during the thirteenth century. The tenants of Tavistock in Devonshire were seeking protection against their lords, and appealing to the right of ancient demesne. The case was debated two or three times during Henry III's reign, and in 1279 judgment was given against the plaintiffs by an imposing quorum, as many as eight judges with the Chief Justice Ralph Hengham at their head. It was conceded that Tavistock was ancient demesne, but the claimants were held to be villains and not villain socmen, and this on the ground that the Domesday description did not mention socmen, but only villains.(100*) It seems strange to dispute a decision given with such solemnity by men who were much better placed to know about these things than we are, but there does not seem to be any possible doubt that Hengham and his companions were entirely wrong. Their decision is in contradiction with almost all the recorded cases; it was always assumed that the stiff Domesday terminology was quite insufficient to show whether a man was a pure villain or a free man holding in villainage, which last would be the villain socman in ancient demesne. If Hengham's doctrine had been taken as a basis for decision in these cases, no ancient demesne tenancy would have been recognised at all out of the Danelaw counties, that is in far the greater part of England, as Domesday never mentions socmen there at all. In the Danelaw counties, on the other hand, the privilege would have been of no use, as those who were called socmen there were freeholders protected without any reference to ancient demesne. Altogether the attempt to make Domesday serve the purpose of establishing the mode of tenure for the thirteenth century must be called a misdirected one. It was quite singular, as the courts generally went back upon Domesday only with the object of finding out whether a particular manor had been vested in the crown at the time of the Conquest or not. It should be noted that Bracton considered the case from a very different point of view, as one may judge by the note he jotted down on the margin of his Note-book against a trial of 1237-8. He says: 'Nota de villanis Henrici de Tracy de Tawystoke qui nunquam fuerunt in manu Domini Regis nec antecessorum suorum et loquebantur de tempore Regis Edwardi coram W. de Wiltona.'(101*) Wilton's decision must have been grounded on the assumption that the ancestors of the claimants were strangers to the manor, or else that the manor had never formed part of the ancient demesne. This would, of course, be in direct contradiction to the opinion that the Tavistock tenants were descended from the king's born villains.     I cannot help thinking that Hengham's decision may have been prompted either by partiality towards the lord of the manor or by an ill-considered wish to compress the right of ancient demesne within the narrowest bounds possible. In any case this trial deserves attention by reason of the eminent authorities engaged in drawing up the judgment, and as illustrating the difficulties which surround the points at issue and lead to confusion both in the decisions and in the treatment of them by law writers. In order to gain firm ground we must certainly go back again to the fundamental propositions laid down with great clearness by Bracton. It was not all the tenants on ancient demesne soil that had a right to appeal to its peculiar privileges-some had protection at Common Law and some had no protection at all. But the great majority of the tenants enjoyed special rights, and these men of ancient demesne were considered to be free by blood and holding in villainage. If the books had not noticed their personal freedom in so many words, it would have been proved by the fact that they were always capable of leaving their tenements and going away at pleasure.     Bracton does not restrict himself to this statement of the case; he adds a few lines to give a historical explanation of it. 'At the time of the Conquest,' says he, 'there were free men holding their lands freely, and by free services or free customs. When they were ejected by stronger people, they came back and received the same lands to be held in villainage and by villain services, which were specified and certain.'(102*)     The passage is a most interesting one, but it calls for some comment. How is it that the special case of ancient demesne gets widened into a general description of the perturbations consequent upon the Conquest? For a general description it is; by the 'stronger folk,' the 'potentiores,' are certainly not meant the king and his officers only. On the other hand, how can it be said of any but the ancient demesne tenants that they resumed their holdings by certain though base services? The wording is undoubtedly and unfortunately rather careless in this most important passage, still the main positions which Bracton intended to convey are not affected by his rather clumsy way of stating them. Ancient demesne tenure, notwithstanding its peculiarities, is one species of a mode of holding which was largely represented everywhere, namely of the status of free men holding in villainage; this condition had been strongly affected if not actually produced by the Conquest. It is interesting to compare the description of the Conquest, as given at greater length but in a looser way, in the Dialogus de Scaccario. It is stated there that those who had actually fought against the Conqueror were deprived of their lands for ever after. Those who for some reason had not actually joined in the contest were suffered to hold their lands under Norman lords, but with no claim to hereditary succession. Their occupation being uncertain, their lords very often deprived them of their lands and they had no means to procure restitution. Their complaints gave rise to a discussion of the matter before the king, and it was held that nothing could be claimed by these people by way of succession from the time preceding the Conquest, and that actionable rights could originate only in deeds granted by the Norman lords.(103*) The Dialogus as compared with Bracton lays most stress on the opposite side of the picture; the disabilities of persons holding at will are set forth not only as a consequence of the state of things following conquest de facto, but as the result of a legal reconsideration of the facts. As a classification of tenures the passage would not be complete, of course, since neither the important species of free socage recognised by Domesday nor the ancient demesne tenure appears. It is only the contrast between villainage and holding by charter that comes out strongly. But in one way the Dialogus reinforces Bracton, if I may be allowed to use the expression: for it traces back the formation of a very important kind of villainage to the Conquest, and connects the attempts of persons entangled into it to obtain protection with their original rights before the Conquest.     Reverting now to the question of ancient demesne, we shall have to consider what light these statements throw on the origin of the tenure. I have noticed several times that ancient demesne socage was connected in principle with the condition of things in Saxon times, immediately before the Conquest. The courts had to impose limitations in order to control evidence; the whole institution was in a way created by limitation, because it restricted itself to the T.R.E. of Domesday as the only acceptable test of Saxon condition. But, notwithstanding all these features imposed by the requirements of procedure, ancient demesne drew its origin distinctly from pre-Conquest conditions. The manors forming it are taken as the manors of St. Edward.(104*) the tenants, whenever they want to make a solemn claim, set forth their rights from the time of St. Edward,(105*) or even Cnut.(106*) But does this mean that the actual privileges of the tenure were extant in Saxon times? Surely not. Such things as freedom from common taxation, exemption from toll, separate jurisdiction, certainly existed in behalf of the king's demesnes before the Conquest, but there is no intimation whatever that the king's tenants enjoyed any peculiar right or protection as to their holdings and services. The 'little writ of right' and the 'Monstraverunt' are as Norman, in a wide sense of the word, as the freedom from serving on assizes or sending representatives to parliament. But although there is no doubt that this tenure grew up and developed several of its peculiarities after the Conquest, it had to fall back on Saxon times for its substance,(107*) which may be described in few words-legal protection of the peasantry. The influence of Norman lawyers was exercised in shaping out certain actionable rights, the effect of conquest was to narrow to a particular class a protection originally conferred broadly, and the action of Saxon tradition was to supply a general stock of freedom and independent right, from which the privileged condition of Norman times could draw its nourishment, if I may put it in that way. It would be idle now to discuss in what proportion the Saxon influence on the side of freedom has to be explained by the influx of men who had been originally owners of their lands, and what may be assigned to the contractual character of Saxon tenant-right. This subject must be left till we come to examine the evidence supplied by Saxon sources of information. My present point is that the ancient demesne tenure of the Conquest is a remnant of the condition of things before the Conquest.(108*)     It may well be asked why the destructive effects of Norman victory were arrested on ancient demesne soil? Was not the king as likely to exercise his discretion in respect of the peasantry as any feudal lord, and is it likely that he would have let himself be fettered by considerations and obligations which did not bind his subjects? In view of such questions one is tempted to treat the protection of the tenants on the ancient demesne merely as a peculiar boon granted to the people whom the king had to give away. I need not say that such an interpretation would be entirely wrong. I hope I have been able to make out convincingly that legal protection given against private lords on manors which had been alienated was only an outgrowth from that certainty of condition which was allowed on the king's own lands. I will just add now that one very striking fact ought to be noticed in this connexion; certainty of tenure and service is limited to one particular class in the manor, although that class is the most numerous one. If this privilege came into being merely by the fixation of status at the time when a manor passed from the crown, the state of the villain pure would have got fixed in the same way as that of the villain socman. But it did not, and so one cannot shirk the difficult question, What gave rise to the peculiar protection against the lord when the lord happened to be king?     I think that three considerations open the way out of the difficulty. To begin with, the king was decidedly considered as the one great safeguard of Saxon tradition and the one defender against Norman encroachments. he had constantly to hear the cry about 'the laws of Edward the Confessor,' and although the claim may be considered as a very vague one in general matters, it became substantiated in this case of tenure and services by the Domesday record. Then again, the proportion of free owners who had lapsed into territorial dependence must have been much greater on the king's land than anywhere else; it was quite usual to describe an allodial owner from the feudal point of view as holding under the king in a particular way, and villain socage was only one of several kinds of socage after all. Last, but not least, the protection against exactions was in reality directed not against the king personally but against his officers, and the king personally was quite likely to benefit by it almost as much as his men. It amounted after all only to a recognition of definite customs in general, to a special judicial organisation of the manor which made it less dependent upon the steward, and to the facilities afforded for complaint and revision of judgments. As to this last it must be noted that the king's men were naturally enough in a better position than the rest of the English peasantry; the curse of villainage was that manorial courts were independent of superior organisation as far as the lower tenants were concerned. But courts in royal manors were the king's courts after all, and as such they could hardly be severed from the higher tribunals held in the king's name.     I may be allowed to sum up the conclusions of this chapter under the following heads: --     1. The law of ancient demesne is primarily developed in regard to the manors in the king's own hand.     2. The special protection granted to villain socmen in ancient demesne is a consequence of a certainty of condition as much recognised in manors which the king still holds as in those which he has alienated.     3. This certainty of condition is derived from the Conquest as the connecting link between the Norman and the Saxon periods.

NOTES:

1. Bracton, 209; cf 7 and 200. Britton, ii. 13.

2. Bracton, 209: 'Villenagium privilegiatum... tenetur de Rege a Conquestu Angliae.' Cf. Blackstone, Law Tracts, ii. 128.

3. Madox, History of the Exchequer, i. 704: 'Tallagium dominiorum et escaetarum et custodiarum.'

4. Bract. Note-book, 1237 (the prior of St. Swithin denies a manor to be ancient demesne): '... per cc annos ante conquestum Anglie [terre] date fuerunt priori et conventui et ab aliis quam regibus.'

5. Y.B. Trin. 49 Edw. III, pl. 8 (Fitzherbert, Abr. Monstraver. 4): "... touts les demesnes qui fuerent en la maine Seint E. sont aunciens demesne, mesque ils fuerent aliens a estraunge mains quant le liver de Domesday se fist, come il avient del manor de Totenham qui fut en autre maine a temps de Domesday fait, come en le dit livers fait mencion, que il fuit adonques al Counte de Cestre.'

6. Very curious pleadings occurred in 1323. Y.B. 15 Edw. II, p. 455: "Ber(wick) Ils dient en l'Exchequer que serra (corr. terra) R. serra ecrit sur le margin en cas ou cest ancien demene en Domesday, mes ceo fust escript sur le dyme foille apres sur un title terra R., mesine (corr. mes une or mesqe?) R. fuit escript sur le margin de chescun foille apres, e tout ceo la est anciene demene a ceo quil nient (corr. dient), mes ascunes gens entendent que les terres qui furent les demenes le Roy St. Edward sont auncien demene, e autres dient fors les terres que le Conquerour conquist, que furent en la seissin St. Edward le jour quil mourust sont anciene demene.' Although a difference of opinion is mentioned it is not material, for this reason, that the entry as Terra Regis, at least T. R. E., is absolutely required to prove a manor ancient demesne. I give the entry on the Plea Roll in App. V.

7. I think only distress can be implied by the remark of Bereford J. Y.B. 30/31 Edw. I, p. 19: 'Quant vous vendrez a loustel, fetes de vostre archevileyn ceo qe vous vodrez.' The words are strange and possibly corrupt.

8. Blackstone, Law Tracts, ii. 153: 'They cannot alienate tenements otherwise than by surrender into the lord's hand.' Bracton, 209.

9. In a most curious description of the customs of villain sokemen of Stoneleigh, Warwick, in the Register of Stoneleigh Abbey, I find the following entries: 'Item sokemanni predicti filias suas non possunt maritare sine licencia domini prout patet anno viij Regis E. filii Regis E. per rotulum curie in quo continetur quod Matildis de Canle in plena curia fecit finem cum domino pro ij sol. quia maritauit filiam Suam Thome de Horwelle sine licencia domini.... Item anno Regis H. lvj continetur in rotulo curie quod Willelmus Michel fuit in misericordia quia maritauit filiam suam sine licencia domini et similiter decenarii fuerunt in misericordia quia hoc concelauerunt.' As to the Stoneleigh Register, see App. VI. Another instance of merchet in an ancient demesne manor is afforded by the Ledecumbe (Letcombe) Regis Court Rolls of 1272. Chapter House, County Bags, Berks. No. 3, m. 12: 'Johannes le Jeune se redemit ad maritandum et fecit finem xij sol.... Johannes Atwel redemit filiam suam anno predicto' (Record Office).

10. Henry II's charter to Stoneleigh Abbey: 'Quieta de schiris et hundredis, et murdro et danegeldo, et placitis et querelis, et geldis et auxiliis, et omni consuetudine et exactione' (Dugdale, Monasticon, v. 447).

11. Close Roll, 12 Henry III, m. II, d: 'Monstrauerunt domino Regi homines de Esindene et de Beyford, quod occasione misericordiae c. librarum, in quam totus Comitatus Hertfordie incidit coram iusticiariis ultimo itinerantibus... hidagium quoddam assedit vicecomes super eos ad auxilium faciendum ceteris de comitatu ad misericordiam illam acquietandam et inde eos distringit. Quia vero predicti homines nec alii de dominicis domini Regis sectam faciunt ad comitatum et ea racione non tenentur ad misericordiam ceterorum de comitatu illo acquietandam auxilium facere aut inde participes esse, mandatum est vicecomiti Hertfordie quod homines predictos in hidagio et demanda pacem habere permittat' (Record Office). Placita de Quo Warranto, 777, 778: 'Non quieti de communi amerciamento nisi tantum in Stonle.'

12. Viner, Abr. v. Anc. Dem. C2, 1; cf E, 20. Madox, Hist. of Exch., i. 418, note l: 'Quieti de auxilio vicecomitis et baillivorum suorum.'

13. Cor. Rege, Mich. 5 E. II, m. 77: '(Juratores dicunt quod homines de Wycle) in itinere respondent per quatuor et prepositum sicut cetere ville de corpore comitatus.' This against their claim to hold in ancient demesne.

14. Viner, Abr. Anc. Dem. B. I, 4, 6.

15. Madox, Exch., i. 412, 698.

16. Stubbs, ii. 566, 567 (Libr. ed.); Madox, Exch., i. 751.

17. Cor. R. M. 5 E. II, m. 77: 'Quando communitas comitatus talliatur... predicti homines taxantur sicut ceteri villani ejusdem comitatus' (against the ancient demesne claim).

18. Fitzherbert, Abr. Monstauerunt, 6 (H. 32 E. III): '... quant le roi taile les burghs a taunt come ils paia a taile pur tant il nouS distreint.' Th.: 'Entend qe les feoffes le roy auront taile?' quasi diceret non, 'car cest un regalte qui proprement attient al roy et a nul auter.' Clam.: 'Tout aura il tail il serra leue en due maner sil auront breve hors del chauncerie al viconte, sc. quod habere facias racionable taile.' The men of King's Ripton, Hunts., who were constantly wrangling about their rights with the Abbot of Ramsey, the lord of the manor, maintained that they had never been tallaged nisi tantummodo ad opus Regis, and their claim was corroborated by an inspection of the Exchequer Rolls (Madox, Exch., i. 757, n). Before granting a writ of tallage to the Abbot of Stoneleigh in 1253, Henry III had an inquisition made as to the precedents. It was found that, Nunquam predictum manerium de Stonle talliatum fuit postquam Johannes Rex predictum manerium dedit predicti Abbati et Conventui, (Stoneleigh Reg., f 25).

19. The Law-books say so distinctly. Britton, ii. 13: 'Et pur ceo qe teus sokemans sount nos gaynours de nos terres, ne voloms mie qe teles gentz seint a nule part somouns de travailer en jurez ne en enquestes, for qe en maners a queus il appendent.' Cf F1eta, p. 4.

20. Natura Brevium, f. 3 b (ed. Pynson).

21. Y.B. H. 49 E. III, pl. 12 (Fitzherbert, Abr. Aunc. Dem. 42, quotes pl. 7 instead of 12 by mistake): Belk(nap), 'Verite est qe le terre est demandable par le briefe de droit patent en le court le seigniour apres la confirmacion (sc. par chartre) par ce qe le brief de droit serra commence en le court le seignior, mes apres la confirmacion il ne serra demande en auncien demesne par brief de droit close secundum consuetudinem,' etc.

22. Bracton actually calls the plea of ancient demesne an exception of villainage, f 200: 'Si autem in sokagio villano, sicut de dominico domini Regis, licet servitia certa sunt, obstabit ei exceptio villenagii, quia talis sokmannus liberum tenementum non habet quia tenet nomine alieno.' Cf Fitzherbert, Abr. Aunc. Dem. 32.

23. Bract. Note-book, pl. 652: "Non debent extra manerium illud placitare quia non possunt [ponere] se in magnam assisam nec defendunt Se per duellum.' On the cases when an assize could be taken as to tenements in ancient demesne, see the opinion printed in Horwood's lntroduction to Y. B. 21/22 Edw. I, p. xviii.

24 Stoneleigh Reg., f. 76 sqq: 'Item in placito terre possunt partes si voluerint ponere jus terre sue in duello campionum vel per magnam assisam, prout patet in recordo rotuli de anno xlv Regis Henrici inter Walterum H. et Johannem del Hul etc. et inter Galfridum Crulefeld et Willelmum Elisaundre anno xx Regis Edwardi filii Regis Henrici,' etc.

25. Bract. Note-book, 1973: 'Nota quod si manerium quod solet esse de domi nico domini Regis datum fuerit alicui et postea semel capta fuerit assisa noue uel mortis de consuetudine, iterum capiantur assise propter consuetudinem.'

26. Britton, ii, 142.

27. If the lord brings an action against the tenant, ancient demesne is no plea, Viner, Abr., Anc. Dem. G. 4. This was not quite clear however, because ancient demesne is a good plea whenever recovery in the action would make the land frank fee.

28. Y.B., M. 41 Edw. III, 22: 'Chold: Si le seigniour disseisie son tenaunt il est en eleccion del tenant de user accion en le court le seigniour ou en le court le roy' (Fitzherbert, Abr. Aunc. Dem. 9). Liber assis. 41 Edw. III, pl. 7, f. 253: 'Wichingham: Si le tenant en auncien demesne fuit disseisi par le seignior en auncien demesne il est a volunte le tenant de porter lassise al comen ley ou en auncien demesne mes e contra si le seignior soit disseisi par le tenant, il ne puit aillours aver son recoverie que en le court le roy.'

29. Stoneleigh Register: 'Item anno regui Regis Eduardi filii Regis Henrici vij Ricardus Peyto tulit breue de recto versus abbatem de Stonle et alios de tenementis in Fynham in curia de Stonle.' There are several instances in the Court Rolls of King's Ripton, Hunts. See App. V.

30. Bract. Note-book, 834: 'Preceptum est vicecomiti quod preciperet ballivis manerii Dom. Regis de Haueringes quod recordari facerent in Curia Dom. Regis de H. loquelam que fuit in eadem curia per breue Dom. Regis inter,' etc.: 652 is to the same point. I must say, however, that I do not agree with Mr Maitland's explanation, vol. II. p. 501, n. 4: 'John Fitz Geoffrey (the defendant pleading ancient demesne) cannot answer without the King. Tenet nomine alieno. Bract. f 200. The privileges of tenants in ancient demesne are the King's privileges.' John Fitz Geoffrey is the King's firmarius, and the other defendants vouch him to warranty. After having pleaded to the jurisdiction of the Court he puts in a second plea, 'salvo predicto responso,' namely, that the tenement claimed is encumbered by other and greater services than paying 15s. to hold freely. This is clearly the farmer's point of view, and as such, he cannot answer without the king. I lay stress on the point because a person pleading ancient demesne, although not holding nomine proprio in strict law, is compelled to answer without the King in the manorial court and by the manorial writ.

31. I need not say that the 'little writ' did not lie against the King himself. No writs did. Cp. Fleta, p. 4.

32. Y. B., 11/12 Edw. III, 325 (Rolls Ser.).

33. I shall have to speak of the constitution and usages of the court in another chapter.

34. Actions on statutes could not be pleaded in ancient demesne because, it was explained, the tenantry not being represented in parliament, were no parties in framing the statute; Viner, Abr. Anc. Dem. E. 19. Another explanation is given in Y. B., H. 8 Edw. II, p. 265.

35. As a matter of course, any question as to whether a manor was ancient demesne, and whether a particular tenement was within the jurisdiction of it, could be decided only in the high courts.

36. Viner, Abr., I. 21.

37. Y. B., H. 3 Edw. III, 29: 'Caunt: Si le jugement soit une foitz revers, la court auncien demesne ad perdu conusance de ce ple a touts jours.'

38. Stoneleigh Reg.: 'Item si contingat quod error sit in ludiciis eorum et pars ex eorum errore gravetur contra consuetudines, pars gravata habebit breve Regis, ad faciendum venire recordum et processum inter partes factos coram justiciariis domini Regis de Banco; qui justiciarii inspecto recordo et processu quod erratum est in processu iusto iudicio emendabunt et ipsos sokemannos propter errorem et falsum iudicium secundum quantitatem delicti ad multam condempnabunt.'

39. Bract. Note-book, 834: 'Et illi de curia qui veniunt quesiti, si unquam tale factum fuit judicium in prefata curia, et quod ostendant exemplum, et nichil inde ostendere possunt, nec exemplum nec aliud.'

40. Y. B., 11/12 Edw. III, p. 325 (Rolls Ser.): 'Stonore: Dit qe toutz les excepcions poent estre salve par usage del manoir forspris un, cest a dire qe la ou il egarde seisine de terre par defalte apres defalte la ou le tenant avait attourne en court qe respoundi pur lui.' Cf. Y. B., H. 3 Edw. III, 29, and T. 3 Edw. III, 29.

41. Bract. Note-book, pl. 834 and 1122 concern the royal manors of Havering and Kingston.

42. I say against all men, because in the case of a stranger's interfering with the privileged villain's rights, it was for him to prove any exemption, e. g. conveyance by charter, which would take the matter out of the range of the manorial court.

43. Britton, ii. 13: 'Et pur ceo qe nous voloms qe ils eyent tele quiete, est ordeyne le bref de droit clos pledable par baillif del maner de tort fet del un sokeman al autre, qe il tiegne les plaintifs a droit selom les usages del maner par simples enquestes.'

44. Natura brevium, f 4 b (ed. Pynson).

45. Stoneleigh Reg.: 'Si dominus a sokemanis tenentibus suis exigat alias consuetudines quam facere consueuerunt quum manerium fuit in manibus progenitorum Regis eos super hoc fatigando et distringendo, prefati tenentes habent recuperare versus dominum et balliuos suos per breve Regis quod vocatur Monstraverunt nobis homines de soka de Stonle,' etc.

46. Viner, Abr. Anc. Dem. C2 3.

47. Fitzherbert, Abr. Monstraverunt, 5 (P. 19, Edw. III): 'Seton: Cest un cas a par luy en cest breue de Monstrauerunt qe un purra sue pur luy e tous les autres del ville tout ne soient pas nosmes en le breve e par la suite de un tous les autres auront auantage et cesty qe vient purra estre resceu e respondra par attourne pur touts les auters coment qe unque ne resceu lour attournement; issint qe cest suit ne breue nest semblable a auter.'

48. As it was the peasants had the greatest difficulty in conducting these cases. In 1294 some Norfolk men tried to get justice against Roger Bigod, the celebrated defender of English liberties. They say that they have been pleading against him for twenty years, and give very definite references. The jury summoned declares in their favour. The earl opposes them by the astonishing answer that they are not his tenants at all. It all ends by the collapse of the plaintiffs for no apparent reason; they do not come into court ultimately, and the jurors plead guilty of having given a false verdict; see App. VII. In the case of the men of Wycle against Mauger le Vavasseur, to which I have referred several times, the trial dragged on for five years; the court adjourned the case over and over again; the defendant did not pay the slightest attention to prohibitions, but went on ill-treating the tenantry. At last he carried off a verdict in his favour; but the management of the trial certainly casts much suspicion on it. Cf Placitorum Abbreviatio, 303.

49. Madox, History of the Exch., i. 723, c, d; 724, e; 725, f.

50. Bract. Note-book, pl. 1237: 'Homines prioris Sti Swithini... questi fuerunt Dom. Regi.'

51. Madox, Exch., i. 725, u; the 'Monstraverunt' of the men of King's Ripton quoted above on the question of tallage. This matter of tallage could certainly be treated as an alteration of services, and sent for trial to the Common Bench.

52. Exch. Memoranda, Q. R. 48/49 Henry III, m. 11. The position of the castle of Bamborough was certainly a peculiar one at the time. Cf Close Roll, 49 Henry III, m. 7, d.

53. Exch. Memoranda, Q. R. Trin. 20 Edw. I, m. 21, d. I give the documents in full in App. VIII. The petitioners are not villains, but they are tenants of base tenure. They evidently belong to the class of villain socmen outside the ancient demesne, of which more hereafter.

54. Placitorum Abbrev. 25: 'Consideratum est quod constabularius de Windesore de quo homines de Bray questi fuerunt quod ipse vexabat eos de serviciis et consuetudinibus indebitis et tallagia insueta ab eis exigebat accipiat ab eis tallagia consueta et ipsi homines alia servicia et consuetudines quas facere solent faciant.' (Pasch. et Trin., I John.)

55. Madox, Exch. I. 41 I, U: 'Homines de Branton reddunt compotum de x libris, ut Robertus de Sachoill eis non distringat ad faciendum ei alias consuetudines quam Regi facere consueverunt dum fuerunt in manu sua.' (Pipe Roll 13 Jo., 7, 10 b, Devenesc).

56. Dugdale, Monasticon. v. 443; Stonleigh Reg. f 14 b. Cf Court Rolls of Ledecumbe Regis (Chapter House, County Bags, Berks, A. 3): 'Anno domini MCCLXVIII, solverunt homines de Ledecumbe Regis C. sol. ad scaccarium domini Regis, pro redditu domini Regis et predicti homines habent residuum in custodia sua excepta porcione prioris Montis Acuti de tempore Suo et porcione prioris de Bermundseye de tempore suo.' The manor had been let in fee farm to the monks of Cluny, who demised it to the Prior of Montacute, who in his turn let it to the Prior of Bermondsey.

57. Stoneleigh Reg. f 15 a: 'Totam sokam de Stonleya et omnes redditus et consuetudines et rectitudines quas Henricus rex pater noster ibi habuit salua regali justicia nostra. Uigore quarum chartarum prefatus Abbas et conventus habent et possident totam sokam de Stonle que quondam pertinuit ad le Bury (sic) in dicta soka existens edificatum, ubi quidam comes quondam de licencia Regis moram traxit. Qui locus nune edificiis Carens vocatur le Burystede iuxta Crulefeld prout fossatis includitur, et est locus nemorosus.'

58. Stoneleigh Reg. f 13 a: 'Isti duo tenent (burgagia in Warrwick) per seruicium sustinendi unum plumbum in manerio de Stonle competens monasterio Regis.'

59. Placita de Quo Warranto, 778: 'Item clamat quod Ballivus dom. Regis in manerio de Stonleye nullam faciet districtionem seu attachiamenta sine presencia Ballivi Abbatis. '

60. See App. VI.

61. Stoneleigh Reg. 13 a: 'W. W. tenet unum burgagium per seruicium inveniendi domino regi seniori domino de Stonle quartam partem unius tripodis.'

62. King's Ripton Court Rolls, Augment. Off. Rolls, xxiii. 94, m. 10: 'Dicta Matildis optulit se versus Margaretam Greylaund de placito dotis, que non venit. Ideo preceptum est capere in manum domini Regis medietatem mesuagii etc. -- pro defectu ipsius Margarete. Eadem Matildis optulit se uersus Willelmum vicarium qui non uenit. Ideo preceptum est capere in manum domini Regis medietatem quinque acrarum terre etc. (Curia de Riptone Regis die Lune in festo sanctorum Protessi et Marciniani anno [r. r. E. xxiv. et J. abb. x]); m. 10, d. -- Qui venit et quantum ad aliam acram dicit, quod non est tenens set quod Abbas seysiuit illam in manum suam. (Curia -- in festo Assumpcionis -- anno supra dicto).' In the first case the seizure corresponds to the 'cape in manum' of a freehold. As there could be no such thing in the caSe of villainage, and the procedural seizure was resumption by the lord, the point is worth notice and may be explained by the King's private right still lingering about the manor. The last case is one of escheat or forfeiture.

63. Stoneleigh Reg. 75 v: 'Item si aliquis deforciatur de tenemento suo et tulerit breve Regis clausum balliuis manerii versus deforciantes, dictum breve non debet frangi nisi in curia.'

64. Natura brevium, 13: 'Balliuis suis.'

65. Britton, i. 221: 'Rois aussi ne porrount rien aliener les dreits de lour coroune ne de lour reaute, qe ne soit repellable par lour successours.'

66. Stoneleigh Reg. 30: 'Nos attendentes, quod huiusmodi alienaciones et consuetudinum mutaciones eciam in nostri et heredum nostrorum preiudi. cium et exheredacionem cedere possent, si manerium illud in manus nostras aliquo casu deuenerit sustinere nolumus sicut nec debemus manerium illud aut ea que ad illud pertinent aliter immutari quam esse solebant temporibus predictis. '

67. The writs are directed sometimes to the bailiffs of the Archbishop of Canterbury and of the Duke of Albemarle, who had the manor in custody for King Richard II, but in the twenty-third year they are inscribed to the King's bailiffs. (Augmentation Court Rolls, xiv. 38). As to the trial mentioned in the text see App. IX.

68. Stoneleigh Reg. II a: 'Precipio tibi quod sine dilacione deliberes Abbati de Stonleia omnes terras et tenuras quas ego dedi et carta mea confirmaui. Et de terra quam rustici uersus calumpniantur et quam ego ei dedi et concessi, inquire si rectum in ea habuerunt et si rectum in ea habent, dona eis rusticis alibi in terra mea excambium ad valenciam.'

69. Bracton, f 209: 'Ad quemcumque manerium peruenerit.'

70. Madox. Firma Burgi, 54; Pipe Rolls, passim. Cf Rot. Cur. Regis Ric., p. 15: 'Homines de Kingestone-c. sol.... pro respectu tenendi villam suam ad eandem firmam quam reddere solebant tempore Henrici Regis.'

71. Madox, Exch. 1437, z: 'Homines de Lechton x marcas pro habenda inquisicione per proxima halimota et per legales milites et alios homines de visneto, quas consuetudines ipsi fecerunt tempore Henrici Regis Patris.' (Pipe Roll. 4 John) Cf. 442, a: 'Homines de Stanleya reddunt compotum de uno palefrido, ut inquiratur per sacramentum legalium hominum, quas consuetudines et quae servitia homines de manerio de Stanleia facere consueverunt Regi Henrico patri Ricardi Regis dum essent in manu sua.' (Pipe Roll, 9 John.)

72. Y. B., Trin., 49 E. III, pl. 8 (Fitzherbert, Abr. Monstrav. 4): 'Han. mist auant record de Domesday qui parla ut supra; -- Terra sancti Stephani en le title qui parla de ceo maner que il fuit en Sa maine. Et auxi il mist auant chartre le Roy que ore est, par quel le roy reherse quil ave viewe la chartre le roy Henri le primer, et reherce tout le chartre, et ceo chartre voilet que Henri aue viewe par ceo parolle inspeximus la chartre le roy William Conquerour qui aue done graunte e confirme mesme le manor a un Henri Butle, a luy, et a ces heirs a ceo iour, quel chartre issint volent inspeximus cartam domini Edwardi Regis Anglie issint par le recorde et par les chartres est expressement reherce par le roy qui ore est, que William Conquerour fuit en possession de ceo maner, Seinct Edward auxint, en quel cas ceo serra aiudge auncient demesne tantamont come si la terre ust estre en la main Seint Edward par expresse parolx en le Domesday. Belknap: Le comen fesance de chartres est de faire parolle en le chartre dedimus concessimus et confirmauimus et uncore le chartre est bon assets al part, mesque le roy nauer riens a ceo temps, issint que riens passe par ceo paroll dedimus mes il aUer par parole de confermement, issint que il nest my proue par ce chartre que ils auoient la possession, pur ceo que les chartres poient estre effectuels a auter entent, scilicet, en nature de confermement, et auxi ces chartres fait par Seint E. et W. Conquerour ne sont my monstres a ore pur record, issint que mesque il furent monstre, et auxi purroit estre proue que le maner fuit en lour possession, nous ne puissomus pas aiudger la terre auncien demesne, pur ceo que auncien demesne sera aiudge par le liuer de domesday qui est de record, et nemy en autre maner. Et puis les plaintifs fuerent nonsues.'

73. Fitzherbert, Abr. Cause de remover ple, 18 (Y. B., M., 21 Edw. III): 'Wilby: Il conuient que il count en le monstrauerunt que il luy distreint pur auters customes que ses auncestres ne fecerunt en temps W. Conquerour, cas le monstrauerunt ne gist pas forsque en cas ou plusiours services sont demandez que ces auncestres ne solent faire en cel temps.'

74. Coram Rege, Tr. 3 Edw. I, m. 14, d: 'Et unde predicti homines (de Kyngesripton) queruntur quod temporibus Cnout regis quo manerium illud fuit in manu dicti antecessoris sui tenuerunt tenementa sua per seruicia subscripta, videlicet reddendi pro qualibet virgata terre 5 solidos, etc. Et omnes antecessores sui tenuissent tenementa sua per predicta seruicia usque ad conquestum Anglie, et a conquestu usque ad tempus regis Henrici aui regis Johannis aui domini regis nunc, usque ad tempus cuiusdam Abbatis de Rameseye Roberti Dogge nomine qui tempore Henrici Regis distrinxit antecessores suos ad dandum relevium pro voluntate sua, etc. Et Abbas dicit quod non debet eis ad hoc breue respondere, quia desicut in narracione Sua non faciunt mencionem quod ipsi extitissent in tali statu in quo fuerunt tempore regis Knout, quem statum ipsi clamant habere, tempore aliorum regum de quo memoria haberi possit nec de quo breue de recto currit nec aliqua verificacio per patriam fieri possit.... Et Reginaldus et alii bene cognoscunt quod ipse Abbas et predecessores sui exstiterunt in seysina percipiendi ab ipsis et antecessoribus suis predicta seruicia indebita a tempore predicti Henrici regis. Set desicut istud breue quod conceditur in fauorem dominicorum domini Regis non habet prescriptionem temporis, petunt judicium si [racione?] aliclljus longiqui termini debeant ab actione excludi sua.'

75. Y. B., M., 15 Edw. II, p. 455: 'Bereford: Coment puit cest brief vous servir la ou il (the defendant) dist qe luy et ces predecessors ont este de vous et de vos auncestres (seisi) de tout temps come, etc., et vos ont taille, etc. Devoms nous enguerre (enquerre corr.) si vos feistes touz services en temps le Roy St. Edward, ou non de temps que vos avez pris title? Devon: Sir navyl (nanyl corr.), mais nous disons qe touz les tenants qui tindrent en temps St. Edward tinderent, etc. (par certains services)... tanqe a ore xv ans devant le brief purchace etc. e ceo puit home enquere.'

76. Y. B., 21/22 Edw. I, 499 et sqq.

77. Coram Rege, Pasch. 1 Edw. II, m. 26: 'Postquam idem manerium ad manus antecessorum predicti Maugeri deuenit usque ad tempus memorie, videlicet temporibus regum Ricardi, Johannis et statum illum toto tempore predicto pacifice continuaverunt et habuerunt.' Coram Rege, M. 5 Edw. II, m. 77: 'Unde queruntur quod cum ipsi homines et eorum antecessores tempore Regum Anglie progenitorum domini Regis nunc, videlicet tempore Regis Willelmi Conquestoris et Willelmi Regis filii sui et eciam tempore Regis Henrici primi solebant tenere terras suas per quaedam certa seruicia videlicet,' etc.

78. I will here cite Bract. Note-book, pl. 1237, as an instance, although there is hardly any call for quotation on this point.

79. Law of Copyhold, 8. Cf the same author's Tenures in Kent, 182.

80. Blackstone, Law Tracts, ii., especially pp. 128, 129.

81. Bracton: 'liberi de condicione... tenentes villenagium.' Britton: 'hommes de franc saunc.'

82. Stoneleigh Reg., 75: 'Item si quis de voluntate et assensu domini facto fine cum domino voluerit dare tenementum suum ad opus alicuius, ueniet in curia cum virga et sursum reddet huiusmodi tenementum ad manum domini sine carta ad opus ementis vel cui datur et ballivus domini habitis prius herietis et aliis de iure domino debitis dictum tenementum emptori seu cui dabitur et heredibus suis secundum consuetudinem manerii habendum et tenendum liberabit in (cum corr.?) virga. Et dictus recipiens tunc faciet finein cum domino prout possunt conuenire.... Item extraneus non debet vocari ad warantum in placito terre in curia de Stonle quia sokemanni non possunt feoffare alios per cartas cum ipsi nullas habeant de rege. Set si quos feoffauerint de licencia domini sine carta, ipsos feoffant secundum consuetudinem manerii prout continetur in rotulo curie de anno xx Regis Edwardi filii Regis Edwardi in placito terre inter,' etc.

83. Placitorum Abbrev. 233, Berks. Cf Britton, i. 287, note c.

84. Bracton, f 7.

85. Jurate et Assise, 45 Henry III, Placitorum Abbr., p. 150: 'Et Galfridus de Praule bene cognoscit quod predictum manerium est antiquum dominicum Dom. Regis set dicit quod predictum tenementum est liberum tenementum ita quod assisa debet inde fieri.... Dicit enim quod ipse feofatus est de predicto tenemento de quodam Willelmo Harold per cartam suam quam profert.... Et juratores quesiti si antecessores ejusdem Willelmi feofati fuerunt per cartam vel si aliquis de tenura illa unquam placitaverunt per diversa brevia vel non, dicunt quod non recolunt.'

86. Stoneleigh Reg., 12: 'Fuerunt eciam tunc quatuor natiui siue serui in le lone quorum quilibet nouum mesuagium et unum quartronum terre cum pertinenciis per seruicia subscripta videlicet leuando furcas, etc.... et debebant... redimere sanguinem suum et dare auxilium domino ad festum Sti. Michaelis scilicet ayde et facere braseum Domini et alia seruicia seruilia.' As to some details, see Dugdale, Antiquities of Warwickshire, i. 176.

87. Coram Rege, Pasch. I Edw. II, m. 26. '(Maugerus) defendit vim et injuriam quando, etc. Et dicit quod qualitercunque iidem homines asserant se et antecessores suos tenentes, etc. certa seruicia dominis de Wycle antecessoribus ipsius Maugeri et sibi fecisse et facere debere, quod omnes antecessores sui domini de eodem manerio extiterunt seisiti de predictis hominibus et eorum antecessoribus tenentibus tenementa quae ipsi modo tenent ibidem ut de uillanis suis taillabilibus alto et basso ad voluntatem ipsorum dominorum et redempcionem sanguinis et alia villana seruicia et incerta et villanas consuetudines faciendo a tempore quo non extat memoria.... Et predicti homines dicunt quod ipsi sunt tenentes de antiquo dominico, etc., prout curie satis liquet et quod omnes tenentes in dominico Regis per certa seruicia et certas consuetudines tenent et tenere debent, quidam per maiora et quidam per minora secundum consuetudinem, set semper per certa,' etc. Coram Rege, Mich. 5 Edw. II, m. 77, v: 'Nec dedici potest quia tenentes de antiquo dominico certa seruicia et certas consuetudines tenentur facere et non ad voluntatem dominorum.'

88. Y. B., M., 15 Edw. II, p. 455: 'Bouser: Auxint bien sont tenans enauncien demesne ascuns vileins et ascuns autres come ailleurs et les sokemans plederent par le petit brief de droit et les vileyns nient. Herle: Il semble que assets est il traverse de votre brief, car vous dites que vous tenez par certeyn service... et il dit que vous estes Son vilein et que il et ses predecessors ont este seisiz de tailler vous et vos auncestres haut et bas, etc. Et stetit verificare.' Cf Bract. Note-book, pl. 1230.

89. Bracton, 209: 'Item est manerium domini regis et dominicum in manerio, et sic plura genera hominum in manerio, vel quia ab initio vel quia mutato villenagio.' The meaning of this badly worded passage is made clearer by a comparison with f 7: 'In dominico domini regis plura sunt genera hominum; sunt enim ibi servi sive nativi ante conquestum, in conquestu, et post, et tenent villenagia et per villana servitia et incerta qui usque in hodiernum diem villanas faciunt consuetudines et incertas et quicquid eis preceptum fuerit (dum tamen licitum et honestum).... Est etiam aliud genus hominum in maneriis domini regis, et tenent de dominico et per easdem consuetudines et servitia villana, per quae supradicti (villani socmanni) et non in villenagio, nec sunt servi nec fuerunt in conquestu, ut primi, sed per quandam conventionem quam cum dominis fecerunt.' Cf Elton, Tenures of Kent, 180.

90. Fitzherbert, Abr. Monstrav. 3 (Pasch. 41 Edw. III). 'Kirt: Les tenements queux ils teignent fuerent en auncien temps entre les maines les villeins queux deuirrent sans heire perque les tenements fuerent seisies en maine le seigneur et puis le senescal le seigneur lessa mesme ceux terres par rolle a mesme ceux ore tenants a tener a volunte del seigneur fesaunt certain services; issi nt ne sont ils forsque tenants a volunte le seigneur.'

91. Natura Brevium, f 105. Cf 16.

92. Y. B., 21/22 Edw. I, p. 499: 'Treis maners de gents.'

93. Bracton, f. 209: Fitzherbert, Monstrav. 3 (Pasch. 41 Edw. III): 'Belknap: Mesmes les tenementz en auncien temps fuerent en mains le petit sokmans, et eux fierent teux services comme gents de petits sokemans fierent en auncien temps et eux les teignent comme gents de petit sokmans.'

94. Stoneleigh Reg., 32: 'Et quod in eodem manerio sunt diuerse tenure secundum consuetudinem manerii illius totis temporibus retroactis usitatam, videlicet quidam tenentes eiusdem manerii tenent terras et tenementa sua in sokemanria de feodo et hereditate de qua quidem tenura talis habetur et omni tempore habebatur consuetudo, videlicet quod quando aliquis tenens eiusdem tenure terram suam alicui alienare uoluerit, veniet in curiam coram ipso Abbate vel eius senescallo et per uirgam sursum reddat in manum domini terram sic alienandam.... Et si aliquis terram aliquam huiusmodi tenure infra manerium predictum per cartam uel sine carta absque licentia dicti Abbatis alienauerit aliter quam per sursum reddicionem in curia in forma predicta, quod terra sic extra curiam alienata domino dicti manerii erit forisfacta in perpetuum. Dicunt eciam quod quidam sullt tenentes eiusdem manerii ad voluntatem eiusdem Abbatis. Et si quis eorundem tenencium terram sic ad voluntatem tentam alienauerit in feodo, quod liceat dicto Abbati terram illam intrare et illam tanquam sibi forisfactam sibi in perpetuum retinere.'

95. A comparison of the data in the Stoneleigh Register and in the Roll is given in App. VI. Cf Bract. Note-book, pl. 834: 'Legales homines de manerio de Havering.'

96. Coram Rege, Mich. 5 Edw. I, m. 77: '(Juratores) quesiti si predicti Margeria et alii et omnes antecessores a tempore quo non extat memoria terras suas successiue de heredibus in heredes tenuerint uel ipsi aut aliquis antecessorum suorum sunt vel fuerint aduenticii, dicunt quod ignorant.'

97. Court Rolls of King's Ripton, Augment. off. xxiii. 94, m. 7: 'Memorandum quod Concessum est Rogero de Kenlowe habendum introitum ad Caterinam filiam Thome prepositi cum uno quarterio terre in villa de Ryptone Regis pro duabus solidis in gersuma, ita tamen quod mortua dicta Katerina ille qui propinquior est heres de sanguine predicte Katerine gersumabit dictum quarterium terre secundum consuetudinem manerii et ville.' A. r. r. Edw. xxiii, m. 8, v: 'Nicholaus de Aula reddit sursum unam dimidiam acram terre ad opus Willelmi ad portam de Broucton.... Et preceptum preposito respondere de exitibus eiusdem terre quia est extraneus... Johannes Arnold reddit sursum duas rodas terre ad opus Hugonis Palmeri... Et preceptum est quod ponatur in seysinam, quia est de sanguine de Riptone Regis.'

98. Court Rolls of King's Ripton, Augment. Off. xxiii. 94, m. 15: 'Curia de Kingsripton tenta die Jovis proxima post translacionem St Benedicti anno r. r. E. xxix et dom. Joh. [abb. xv. Venit] Willelmus fil. Thome Unfroy de Kingesripton et reddidit sursum in manibus senescalli totum jus quod [habuit] in illis tribus acris terre in campis de Kingesriptone quondam Willelmi capellani de eadem [villa ad opus filiorum] Rogeri de Kellawe extranei legitime procreatorum de Katerina filia Thome prepositi que est de con[dicione sokemannorum?] bondorum de Kingesripton.... Rogerus de Kellawe extraneus qui se maritauit cuidam Katerine filie Thome prepositi de Kingesripton que est de nacione et condicione eiusdem ville venit et petiit in curia nomine filiorum suorum ex legitimo matrimonio exeuntium de corpore prefate Katerine illas vi acras terre.... (Juratores dicunt) quod nichil inde sciunt nec aliquid super isto articulo presentare volunt ad presens. Et sic infecto negocio maximo contemptu domini et balliuorum suorum extra curiam recesserunt. Et ideo preceptum est balliuis quod die in... faciant de eisdem juratis xl solidos ad opus domini.'

99. Stoneleigh Reg., 30 (Edward II injunction): 'Et quidam forinseci qui sokemanni non sunt auctoritate Sua propria et per negligenciam dicti Abbatis et conuentus, ut dicitur, a quibusdam sokemannorum illorum quasdam terras et tenementa alienaverunt. Nos igitur super premissis plenius certiorari uolentes assignavimus vos una cum his, quos vobis associaveritis, ad inquirendum qui sokemanni huiusmodi terras et tenementa ibidem alienauerunt huiusmodi forinsecis aut extrinsecis et quibus,' etc. Cf the Statute of I Richard II, Stat. I. cap. 6. It was altogether a dangerous transaction for the socmen, because they were risking their privileges thereby. It must have been lucrative.

100. Placitorum Abbrev., p. 270 (Coram Rege, Mich. 7/8 Edw. I): 'Et eciam comperto in libro de Domesday quod non fit aliqua mencio de sokemannis set tantummodo de villanis et servis et eciam comperto per inquisicionem quod multi eorum sunt adventicii quibus tenementa sua tradita fuerunt ad voluntatem dominorum suorum... consideraverunt quod predictus Galfridus eat inde sine die et quod predicti homines teneant tenementa predicta in predicto manerio per servilia servicia si voluerint, salvo statu corporum suorum, et quod de cetero non possunt clamare aliquod certum statum et sint in misericordia pro falso clameo.'

101. Bract. Note-book, pl. 1227.

102. Bracton, f. 7.

103. Dialogus de Scaccario, i. 10: 'Post regni conquisitionem, post justam rebellium subversionem, cum rex ipse regisque proceres loca nova perlustrarent, facta est inquisitio diligens, qui fuerint qui contra regem in bello dimicantes per fugam Se salvaverint. His omnibus et item haeredibus eorum qui in bello occubuerunt, spes omnis terrarum et fundorum atque redituum, quos ante possederant, praeclusa est; magnum namque reputabant frui vitae beneficio sub inimicis. Verum qui vocati ad bellum nec dum convenerant, vel familiaribus vel quibuslibet necessariis occupati negotiis non interfuerant, cum tractu temporis devotis obsequiis gratiam dominorum possedissent, sine spe successionis, sibi tantum pro voluptate (voluntate?) tamen dominorum possidere coeperunt. Succedente vero tempore cum dominis suis odiosi passim a possessionibus pellerentur, nec esset qui ablata restitueret, communis indigenarum ad regem pervenit querimonia, quasi sic omnibus exosi et rebus spoliati ad alienigenas transire cogerentur. Communicato tandem super his consilio, decretum est, ut quod a dominis suis exigentibus meritis interveniente pactione legitima poterant obtinere, illis inviolabili jure concederentur; ceterum autem nomine successionis a temporibus subactae gentis nihil sibi vendicarent.'

104. Stoneleigh Reg., 4 a: 'Que quidem maneria existencia in possessione et manu domini regis Edwardi per universum regnum vocantur antiquumn dominicum corone regis Anglie prout in libro de Domesdav continetur.'

105. 'Loquebantur de tempore Sti Edwardi Regis coram W. de Wilton.'

106. The men of King's Ripton.

107. I do not think there is any ground for the suggestion thrown out by M. Kovalevsky in the Law Quarterly, iv. p. 271, namely, that the law of ancient demesne was imported from Normandy. Whatever the position of the villains was in the Duchy, Norman influence in England made for subjection, because it was the influence of conquest. It must be remembered that in a sense the feudal law of England was the hardest of all in Western Europe, and this on account of the invasion.

108. Stubbs, Const. Hist. I. 454: 'In those estates, which, when they had been held by the crown since the reign of Edward the Confessor, bore the title of manors in ancient demesne, very much of the ancient popular process had been preserved without any change, and to the present day some customs are maintained in them which recall the most primitive institutions.' I shall have to speak about the mode of holding the courts in another chapter.

Chapter 4

Legal Aspect of Villainage. Conclusions

I have been trying to make out what the theories of the lawyers were with regard to villainage in its divers ramifications. Were we to consider this legal part of the subject merely as a sort of crust superposed artificially over the reality of social facts, we should have to break through the crust in order to get at the reality. But, of course, the law regulating social conditions is not merely an external superstructure, but as to social facts is both an influence and a consequence. In one sense it is a most valuable product of the forces at play in the history of society, most valuable just by reason of the requirements of its formalism and of those theoretical tendencies which give a very definite even if a somewhat distorted shape to the social processes which come within its sphere of action.     The formal character of legal theory is not only important because it puts things into order and shape; it suggests a peculiar and efficient method of treating the historical questions connected with law. The legal intellect is by its calling and nature always engaged in analysing complex cases into constitutive elements, and bringing these elements under the direction of principles. It is constantly struggling with the confusing variety of life, and from the historian's point of view it is most interesting when it succumbs in the struggle. There is no law, however subtle and comprehensive, which does not exhibit on its logical surface seams and scars, testifying to the incomplete fusing together of doctrines that cannot be brought under the cover of one principle. And so a dialectic examination of legal forms which makes manifest the contradictions and confused notions they contain actually helps us to an insight into the historical stratification of ideas and facts, a stratification which cannot be abolished however much lawyers may crave for unity and logic.     In the particular case under discussion medieval law is especially rich in such historical clues. The law writers are trying hard to give a construction of villainage on the basis of the Roman doctrine of slavery, but their fabric gives way at every point. It would be hardly a fair description to say that we find many survivals of an older state of things and many indications of a new development. Everything seems in a state of vacillation and fermentation during the thirteenth century. As to the origin of the servile status the law of bastards gets inverted; in the case of matrimony the father-rule is driving the mother-rule from the ground; the influence of prescription is admitted by some lawyers and rejected by others. As to the means whereby persons may issue out of that condition, the views of Glanville and Bracton are diametrically opposed, and there are still traces in practice of the notion that a villain cannot buy his freedom and that he cannot be manumitted by the lord himself in regard to third persons. In their treatment of services in their reference to status the courts apply the two different tests of certainty and of kind. In their treatment of tenure they still hesitate between a complete denial of protection to villainage and the recognition of it as a mode of holding which is protected by legal remedies. And even when the chief lines are definitely drawn they only disclose fundamental contradictions in all their crudeness.     In civil law, villains are disabled against their lords but evenly watched against strangers; even against a lord legal protection is lingering in the form of an action upon covenant and in the notion that the villain's wainage should be secure. In criminal and in police law villains are treated substantially as free persons: they have even a share, although a subordinate one, in the organisation of justice. The procedure in questions of status is characterised by outrageous privileges given to the lord against a man in 'a villain nest,' and by distinct favour shown to those out of the immediate range of action of the lord. The law is quite as much against giving facilities to prove a man's servitude as it is against granting that man any rights when once his servitude has been established. The reconciliation of all these contradictions and anomalies cannot be attempted on dogmatic grounds. The law of villainage must not be constructed either on the assumption of slavery, Or on that of liberty, or on that of colonatus or ascription. It contains elements from each of these three conditions, and it must be explained historically.     The material hitherto collected and discussed enables us to distinguish different layers in its formation. To begin with, the influence of lawyers must be taken into account. This is at once to be seen in the treatment of distinctions and divisions. The Common Law, as it was forming itself in the King's Court, certainly went far to smoothe down the peculiarities of local custom. Even when such peculiarities were legally recognised, as in the case of ancient demesne, the control and still more the example of the Common Law Courts was making for simplification and reducing them wore or less to a generally accepted standard. The influence of the lawyers was exactly similar in regard to subdivisions on the vertical plane (if I may use the expression): for these varieties of dependence get fused into general servitude, and in this way classes widely different in their historical development are brought together under the same name. The other side of this process of simplification is shown where legal theory hardens and deepens the divisions it acknowledges. In this way the chasm between liberty and servitude increases as the notion of servitude gets broader. In order to get sharp boundaries and clear definitions to go by, the lawyers are actually driven to drop such traits of legal relations as are difficult to manage with precision, however great their material importance, and to give their whole attention to facts capable of being treated clearly. This tendency may account for the ultimate victory of the quantitative test of servitude over the qualitative one, or to put it more plainly, of the test of certainty of services over the discussion of kind of services. Altogether the tendency towards an artificial crystallisation of the law cannot be overlooked.     In the work of simplifying conditions artificially the lawyers had several strong reagents at their disposal. The mighty influence of Roman law has been often noticed, and there can be no doubt that it was brought to bear on our subject to the prejudice of the peasantry and to the extinction of their independent rights. It would not have been so strong if many features of the vernacular law had not been brought half way to meet it. Norman rules, it is well known, exercised a very potent action on the forms of procedure;(1*) but the substantive law of status was treated very differently in Normandy and in England, and it is not the influx of Norman notions which is important in our case, but the impetus given by them to the development of the King's Courts. This development, though connected with the practice of the Duchy, cannot be described simply or primarily as Norman. Once the leaven had been communicated, English lawyers did their own work with great independence as well as ingenuity of thought, and the decision of the King's Court was certainly a great force. I need not point out again to what extent the law was fashioned by the writ procedure, but I would here recall to attention the main fact, that the opposition between 'free' and 'unfree' rested chiefly on the point of being protected or not being protected by the jurisdiction of the King's Court.     If we examine the action of lawyers as a whole, in order to trace out, as it were, its social bias, we must come to the conclusion that it was exercised first in one direction and then in the opposite one. The refusal of jurisdiction may stand as the central fact in the movement in favour of servitude, although that movement may be illustrated almost in every department, even if one omits to take into account what may be mere instances of bad temper or gross partiality. But the wave begins to rise high in favour of liberty even in the thirteenth century. It does not need great perspicuity to notice that, apart from any progress in morals or ideas, apart from any growth of humanitarian notions, the law was carried in this direction by that development of the State which lays a claim to and upon its citizens, and by that development of social intercourse which substitutes agreement for bondage. Is it strange that the social evolution, as observed in this particular curve, does not appear as a continuous crescendo, but as a wavy motion? I do not think it can be strange, if one reflects that the period under discussion embraces both the growth and the decay of feudalism, embraces, that is, the growth of the principle of territorial power on the ruins of the tribal system and also the disappearance of that principle before the growing influence of the State.     Indirectly we have had to consider the influence of feudalism, as it was transmitted through the action of its lawyers. But it may be viewed in its direct consequences, which are as manifest as they are important. In England, feudalism in its definite shape is bound up with conquest.(2*) and it is well known that, though very much hampered on the political side by the royal power, it was exceptionally complete on the side of private law by reason of its sudden, artificial, and enforced introduction. One of the most important results of conquest from this point of view was certainly the systematic way in which the subjection of the peasantry was worked out. If we look for comparison to France as the next neighbour of England and a country which has influenced England, we shall find the same elements at work, but they combine in a variety of modes according to provincial and local peculiarities. Although the political power of the French baron is so much greater than that of an English lord, the roturier often keeps his distance from the serf better than was the case in England. In France everything depends upon the changing equilibrium of local forces and circumstances. In England the Norman Conquest produced a compact estate of aristocracy instead of the magnates of the continent, each of whom was strong or weak according to the circumstances of his own particular case; it produced Common Law and the King's courts of Common Law; and it reduced the peasantry to something like uniform condition by surrounding the liberi et legales homines with every kind of privilege. The national colouring given by the Dialogus de Scaccario to the social question of the time is not without meaning in this light: -- the peasants may be regarded as the remnant of a conquered race, or as the issue of rebels who have forfeited their rights.     The feudal system once established produced certain effects quite apart from the Conquest, effects which flowed from its own inherent properties. The Conquest had cast free and unfree peasantry together into the one mould of villainage; feudalism prevented villainage from lapsing into slavery. I have shown in detail how the manor gives a peculiar turn to personal subjection. Its action is perceivable in the treatment of the origin of the servile status. The villain, however near being a chattel, cannot be devised by will because he is considered as an annex to the free tenement of the lord. The connexion with a manor becomes the chief means of establishing and proving seisin of the villain. On the other hand, in the trial of status, manorial organisation led to the sharp distinction between persons in the power of the lord and out of it. This fact touches the very essence of the case. The more powerful the manor became, the less possible was it to work out subjection on the lines of personal slavery. Without entering into the economic part of the question for the present, merely from the legal point of view it was a necessary consequence of the rise of a local and territorial power that the working people under. Its sway were subjected by means of its territorial organisation and within its limited sphere of local action. Of course, the State upheld some of the lord's rights even outside the limits of the manor, but these were only a pale reflection of what took place within the manor, and they were more difficult to enforce in proportion as the barriers between the manors rose higher; it became very difficult for one lord to reclaim runaways who were lying within the manor of another lord.     If we remove those strata of the law of villainage which owe their origin to the action of the feudal system and to the action of the State, which rises on the ruins of the feudal system, we come upon remnants of the pre-feudal condition. They are by no means few or unimportant, and it is rather a wonder that so much should be preserved notwithstanding the systematic work of conquest, feudalism, and State. When I speak of pre-feudal condition I do not mean to say, of course, that feudalism had not been in the course of formation before the Norman Conquest. I merely wish to oppose a social order grounded on feudalism to a social order which was only preparing for it and developing on a different basis. The Conquest brought together the free and unfree. Our survivals of the state of things before the Conquest group themselves naturally in one direction, they are manifestations of the free element which went into the constitution of villainage. It is not strange that it should be so, because the servile element predominated in those parts of the law which had got the upper hand and the official recognition. A trait which goes further than the accepted law in the direction of slavery is the difficulties which are put by Glanville in the way of manumission. His statement practically amounts to a denial of the possibility of manumission, and such a denial we cannot accept. His way of treating the question may possibly be explained by old notions as to the inability of a master to put a slave by a mere act of his will on the same level with free men.     However this may be, our survivals arrange themselves with this single possible exception in the direction of freedom. Perhaps such facts as the villain's capacity to take legal action against third persons, and his position in the criminal and police law, ought not to be called survivals. They are certain sides of the subject. They are indissolubly allied to such features of the civil law as the occasional recognition of villainage as a protected tenure, and the villain's admitted standing against the lord when the lord had bound himself by covenant. In the light of these facts villainage assumes an entirely different aspect from that which legal theory tries to give it. Procedural disability comes to the fore instead of personal debasement. A villain is to a great extent in the power of his lord, not because he is his chattel, but because the courts refuse him an action against the lord. He may have rights recognised by morality and by custom, but he has no means to enforce them; and he has no means to enforce them because feudalism disables the State and prevents it from interfering. The political root of the whole growth becomes apparent, and it is quite clear, on the one hand, that liberation will depend to a great extent on the strengthening of the State; and, on the other hand, that one must look for the origins of enslavement to the political conditions before and after the Conquest.     One undoubtedly encounters difficulties in tracing and grouping facts with regard to those elements of freedom which appear in the law of villainage. Sometimes it may not be easy to ascertain whether a particular trait must be connected with legal progress making towards modern times, or with the remnants of archaic institutions. As a matter of fact, however, it will be found that, save in very few cases, we possess indications to show us which way we ought to look.     Another difficulty arises from the fact that the law of this period was fashioned by kings of French origin and lawyers of Norman training. What share is to be assigned to their formal influence? and what share comes from that old stock of ideas and facts which they could not or would not destroy? We may hesitate as to details in this respect. It is possible that the famous paragraph of the so-called Laws of William the Conqueror, prescribing in general terms that peasants ought not to be taken from the land or subjected to exactions,(3*) is an insertion of the Norman period, although the great majority of these Laws are Saxon gleanings. It is likely that the notion of wainage was worked out under the influence of Norman ideas; the name seems to show it, and perhaps yet more the fact that the plough was specially privileged in the duchy. It is to be assumed that the king, not because he was a Norman but because he was a king, was interested in the welfare of subjects on whose back the whole structure of his realm was resting. But the influence of the strangers went broadly against the peasantry, and it has been repeatedly shown that Norman lawyers were prompted by anything but a mild spirit towards them. The Dialogus de Scaccario is very instructive on this point, because it was written by a royal officer who was likely to be more impartial than the feudatories or any one who wrote in their interest would be, and yet it makes out that villains are mere chattels of their lord, and treats them throughout with the greatest contempt. And so, speaking generally, it is to the times before the Conquest that the stock of liberty and legal independence inherent in villainage must be traced, even if we draw inferences merely on the strength of the material found on this side of the Conquest. And when we come to Saxon evidence, we shall see how intimately the condition of the ceorl connects itself with the state of the villain along the main lines and in detail.     The case of ancient demesne is especially interesting in this light. It presents, as it were, an earlier and less perfect crystallisation of society on a feudal basis than the manorial system of Common Law. It steps in between the Saxon soc and tun on the one hand, and the manor on the other. It owes to the king's privilege its existence as an exception. The procedure of its court is organised entirely on the old pattern and quite out of keeping with feudal ideas, as will be shown by-and-by. Treating of it only in so far as it illustrates the law of status, it presents in separate existence the two classes which were fused in the system of the Common Law; villain socmen are carefully distinguished from the villains, and the two groups are treated differently in every way. A most interesting fact, and one to be taken up hereafter, is the way of treating the privileged group as the normal one. Villain socmen are the men of ancient demesne; villains are the exception, they appear only on the lord's demesne, and seem very few, so far as we can make a calculation of numbers. Villain socmen enjoy a certainty of condition which becomes actual tenant-right when the manor passes from the crown into a private lord's hand. As to its origin there can be no doubt -- ancient demesne is traced back to Saxon times in as many words and by all our authorities.     A careful analysis of the law of ancient demesne may even give us valuable clues to the condition of the Saxon peasantry. The point just noticed, namely, that the number of villain socmen is exceedingly large and quite out of proportion to that of other tenants, gives indirect testimony that the legal protection of the tenure was not due merely to an influx of free owners deprived of their lands by conquest. This is the explanation given by Bracton, but it is not sufficient to account for the privileged position of almost all the tenants within the manor. A considerable part of them surely held before the Conquest not as owners and not freely, but as tenants by base services, and their fixity of tenure is as important in the constitution of ancient demesne as is the influx of free owners. If this latter cause contributed to keep up the standard of this status, the former cause supplied that tradition of certainty to which ancient demesne right constantly appeals.     Another point to be kept firmly in view is that the careful distinction kept up on the ancient demesne between villain socmen and villains, proves the law on this subject to have originated in the general distribution of classes and rights during the Saxon period, and not in the exceptional royal privilege which preserved it in later days; I mean, that if certainty of condition had been granted to the tenantry merely because it was royal tenantry, which is unlikely enough in itself, the certainty would have extended to tenants of all sorts and kinds. It did not, because it was derived from a general right of one class of peasants to be protected at law, a right which did not in the least preclude the lord from using his slaves as mere chattels.     And so I may conclude: an investigation into the legal aspect of villainage discloses three elements in its complex structure. Legal theory and political disabilities would fain make it all but slavery; the manorial system ensures it something of the character of the Roman colonatus; there is a stock of freedom in it which speaks of Saxon tradition.

NOTES:

1. Brunner, Entstehung der Schwurgericht, has made an epoch on the discussion of this phenomenon.

2. I shall treat at length of the Norman Conquest in my third essay.

3. Leg. Will. Conq. i, 29 (Schmid, p. 340).

Chapter 5

The Servile Peasantry of Manorial Records

It would be as wrong to restrict the study of villainage to legal documents as to disregard them. The jurisprudence and practice of the king's courts present a one-sided, though a very important view of the subject, but it must be supplemented and verified by an investigation of manorial records. With one class of such documents we have had already to deal, namely with the rolls of manorial courts, which form as it were the stepping-stone between local arrangements and the general theories of Common Law. So-called manorial 'extents' and royal inquisitions based on them lead us one step further; they were intended to describe the matter-of-fact conditions of actual life, the distribution of holdings, the amount and nature of services, the personal divisions of the peasantry, their evidence is not open to the objection of having been artificially treated for legal purposes. Treatises on farming and instructions to manorial officers reflect the economic side of the system, and an enormous number of accounts of expenditure and receipts would enable the modern searcher, if so minded, to enter even into the detail of agricultural management.(1*) We need not undertake this last inquiry, but some comparison between the views of lawyers and the actual facts of manorial administration must be attempted. Writers on Common Law invite one to the task by recognising a great variety of local customs; Bracton, for instance, mentioning two notable deviations from general rules in the department of law under discussion. In Cornwall the children of a villain and of a free woman were not all unfree, but some followed the father and others the mother.(2*) In Herefordshire the master was not bound to produce his serfs to answer criminal charges.(3*) If such customs were sufficiently strong to counteract the influence of general rules of Common Law, the vitality of local distinctions was even more felt in those cases where they had no rules to break through, It may be even asked at the very outset of the inquiry whether there is not a danger of our being distracted by endless details. I hope that the following pages will show how the varieties naturally fall into certain classes and converge towards a few definite positions, which appear the more important as they were not produced by artificial arrangement from above. We must be careful however, and distinguish between isolated facts and widely-spread conditions. Another possible objection to the method of our study may be also noticed here, as it is connected with the same difficulty. Suppose we get in one case the explanation of a custom or institution which recurs in many other cases; are we entitled to generalise our explanation? This seems methodically sound as long as the contrary cannot be established, for the plain reason that the variety of local facts is a variety of combinations and of effects, not of constitutive elements and of causes. The agents of development are not many, though their joint work shades off into a great number of variations. We may be pretty sure that a result repeated several times has been effected by the same factors in the same way; and if in some instances these factors appear manifestly, there is every reason to suppose them to have existed in all the cases. Such reflections are never convincing by themselves, however, and the best thing to test them will be to proceed from these broad statements to an inquiry into the particulars of the case.     The study of manorial evidence must start from a discussion as to terminology. The names of the peasantry will show the natural subdivisions of the class. If we look only to the unfree villagers, we shall notice that all the varieties of denomination can easily be arranged into four classes: one of these classes has in view social standing, another economic condition, a third starts from a difference of services, and a fourth from a difference of holdings. The line may not be drawn sharply between the several divisions, but the general contrast cannot be mistaken.     The term of most common occurrence is, of course, villanus. Although its etymology points primarily to the place of dwelling, and indirectly to specific occupations, it is chiefly used during the feudal period to denote servitude. It takes in both the man who is personally unfree and stands in complete subjection to the lord, and the free person settled on servile land. Both classes mentioned and distinguished by Bracton are covered by it. The common opposition is between villanus and libere tenens, not between villanus and liber homo. It is not difficult to explain such a phraseology in books compiled either in the immediate interest of the lords or under their indirect influence, but it must have necessarily led to encroachments and disputes: it has even become a snare for later investigators, who have sometimes been led to consider as one compact mass a population consisting of two different classes, each with a separate history of its own. The Latin 'rusticus' is applied in the same general way. lt is less technical however, and occurs chiefly in annals anD other literary productions, for which it was better suited by its classical Derivation. But when it is used in opposition to other terms, it stands exactly as villanus. that is to say, it is contrasted with libere tenens.(4*)     The fundamental distinction of personal status has left some traces in terminology. The Hundred Rolls, especially the Warwickshire one,(5*) mention servi very often. Sometimes the word is used exactly as villanus would be.(6*) Tenere in servitute and tenere in villenagio are equivalent.(7*) But other instances show that servus has also a special meaning. Cases where it occurs in an 'extent' immediately after villanus, and possibly in opposition to it, are not decisive.(8*) They may be explained by the fact that the persons engaged in drawing up a custumal, jotted down denominations of the peasantry without comparing them carefully with what preceded. A marginal note servi would not be necessarily opposed to a villani following it; it may only be a different name for the same thing. And it may be noted that in the Hundred Rolls these names very often stand in the margin, and not in the text. But such an explanation would be out of place when both expressions are used in the same sentence. The description of Ipsden in Oxfordshire has the following passage: item dietus R. de N. hanet de proparte sua septem servos villanos. (Rot. Hundr. ii. 781, b: cf. 775, b, Servi Custumarii.) It is clear that it was intended, not only to describe the general condition of the peasantry, but to define more particularly their status. This observation and the general meaning of the word will lead us to believe that in many cases when it is used by itself, it implies personal subjection.     The term nativus has a similar sense. But the relation between it and villanus is not constant; sometimes this latter marks the genus, while the former applies to a species; but sometimes they are used interchangeably,(9*) and the feminine for villain is nieve (nativa). But while villanus is made to appear both in a wide and in a restricted sense, and for this reason cannot be used as a special qualification, nativus has only the restricted sense suggesting status.(10*) In connection with other denominations nativus is used for the personally unfree.(11*) When we find nativus domini, the personal relation to the lord is especially noticed.(12*) The sense being such, no wonder that the nature of the tenure is sometimes described in addition.(13*) Of course, the primary meaning is, that a person has been born in the power of the lord, and in this sense it is opposed to the stranger -- forinsecus, extraneus.(14*) In this sense again the Domesday of St. Paul's speaks of 'nativi a principio' in Navestock.(15*) But the fact of being born to the condition supposes personal subjection, and this explains why nativi are sometimes mentioned in contrast with freemen,(16*) without any regard being paid to the question of tenure. Natives, or villains born, had their pedigrees as well as the most noble among the peers. Such pedigrees were drawn up to prevent any fraudulent assertion as to freedom, and to guide the lord in case he wanted to use the native's kin in prosecution of an action de nativo habendo. One such pedigree preserved in the Record Office is especially interesting, because it starts from some stranger, extraneus,(17*) who came into the manor as a freeman, and whose progeny lapses into personal villainage; apparently it is a case of villainage by prescription.     The other subdivision of the class-freemen holding unfree land(18*) -- has no special denomination. This deprives us of a very important clue as to the composition of the peasantry, but we may gather from the fact how very near both divisions must have stood to each other in actual life. The free man holding in villainage had the right to go away, while the native was legally bound to the lord; but it was difficult for the one to leave land and homestead, and it was not impossible for the other to fly from them, if he were ill-treated by his lord or the steward. Even the fundamental distinction could not be drawn very sharply in the practice of daily life, and in every other respect, as to services, mode of holding, etc., there was no distinction. No wonder that the common term villanus is used quite broadly, and aims at the tenure more than at personal status.     Terms which have in view the general economic condition of the peasant, vary a good deal according to localities. Even in private documents they are on the whole less frequent than the terms of the first class, and the Hundred Rolls use them but very rarely. It wOUld be very wrong to imply that they were not widely spread in practice. On the contrary, their vernacular forms vouch for their vitality and their use in common speech. But being vernacular and popular in origin, these terms cannot obtain the uniformity and currency of literary names employed and recognised by official authority. The vernacular equivalent for villanus seems to have been niet or neat.(19*) It points to the regular cultivators of the arable, possessed of holdings of normal size and performing the typical services of the manor.(20*) The peasant's condition is here regarded from the economical side, in the mutual relation of tenure and work, not in the strictly legal sense, and men of this category form the main stock of the manorial population. The Rochester Custumal says(21*) that neats are more free than cottagers, and that they hold virgates. The superior degree of freedom thus ascribed to them is certainly not to be taken in the legal sense, but is merely a superiority in material condition. The contrast with cottagers is a standing one,(22*) and, being the main population of the village, neats are treated sometimes as if they were the only people there.(23*) The name may be explained etymologically by the Anglo-Saxon geneat, which in documents of the tenth and eleventh century means a man using another person's land. The differences in application may be discussed when we come to examine the Saxon evidence.     Another Saxon term - gebur - has left its trace in the burus and buriman of Norman records. The word does not occur very often, and seems to have been applied in two different ways-to the chief villains of the township in some places, and to the smaller tenantry, apparently in confusion with the Norman bordarius, in some other.(24*) The very possibility of such a confusion shows that it was going out of common use. On the other hand, the Danish equivalent bondus is widely spread. It is to be found constantly in the Danish counties.(25*) The original meaning is that of cultivator or 'husband' -- the same in fact as that of gebur and boor. Feudal records give curious testimony of the way in which the word slid down into the 'bondage' of the present day. We see it wavering, as it were, sometimes exchanging with servus and villanus, and sometimes opposed to them.(26*) Another word of kindred meaning, chiefly found in eastern districts, is landsettus, with the corresponding term for the tenure;(27*) this of course according to its etymology simply means an occupier, a man sitting on land.     Several terms are found which have regard to the nature of services. Agricultural work was the most common and burdensome expression of economical subjection. Peasants who have to perform such services in kind instead of paying rents for them are called operarii.(28*) Another designation which may be found everywhere is consuetudinarii or custumarii.(29*) It points to customary services, which the people were bound to perform. When such tenants are opposed to the villains, they are probably free men holding in villainage by customary work.(30*) As the name does not give any indication as to the importance of the holding a qualification is sometimes added to it, which determines the size of the tenement.(31*)     In many manors we find a group of tenants, possessed of small plots of land for the service of following the demesne ploughs. These are called akermanni or carucarii (32*), are mostly selected among the customary holders, and enjoy an immunity from ordinary work as long as they have to perform their special duty.(33*) On some occasions the records mention gersumarii, that is peasants who pay a gersuma, a fine for marrying their daughters.(34*) This payment being considered as the badge of personal serfdom, the class must have consisted of men personally unfree.     Those names remain to be noticed which reflect the size of the holding. In one of the manors belonging to St. Paul's Cathedral in London we find hidarii.(35*) This does not mean that every tenant held a whole hide. On the contrary, they have each only a part of the hide, but their plots are reckoned up into hides, and the services due from the whole hide are stated. Virgatarius(36*) is of very common occurrence, because the virgate was considered as the normal holding of a peasant. It is curious that in consequence the virgate is sometimes called simply terra, and holders of virgates -- yerdlings.(37*) Peasants possessed of half virgates are halfyerdlings accordingly. The expressions 'a full villain'(38*) and 'half a villain' must be understood in the same sense. They have nothing to do with rank, but aim merely at the size of the farm and the quantity of services and rents. Ferlingseti are to be met with now and then in connexion with the ferling or ferdel, the fourth part of a virgate.(39*)     The constant denomination for those who have no part in the common arable fields, but hold only crofts or small plots with their homesteads, is 'cotters' (cotsetle, cottagiarii, cottarii (40*), etc.). They get opposed to villains as to owners of normal holdings.(41*) Exceptionally the term is used for those who have very small holdings in the open fields. In this case the authorities distinguish between greater and lesser cotters (42*), between the owners of a 'full cote' and of 'half a cote.'(43*) The bordarii, so conspicuous in Domesday, and evidently representing small tenants of the same kind as the cottagers, disappear almost entirely in later times.(44*)     We may start from this last observation in our general estimate of the terminology. One might expect to find traces of very strong French influence in this respect, if in any. Even if the tradition of facts had not been interrupted by the Conquest, names were likely to be altered for the convenience of the new upper class. And the Domesday Survey really begins a new epoch in terminology by its use of villani and bordarii. But, curiously enough, only the first of these terms takes root on English soil. Now it is not a word transplanted by the Conquest; it was in use before the Conquest as the Latin equivalent of ceorl, geneat, and probably gebur. Its success in the thirteenth and fourteenth centuries is a success of Latin, and not of French, of the half-literary record language over conversational idioms, and not of foreign over vernacular notions. The peculiarly French 'bordier' on the other hand, gets misunderstood and eliminated. Looking to Saxon and Danish terms, we find that they hold their ground tenaciously enough; but still the one most prevalent before the Conquest - ceorl - disappears entirely, and all the others taken together cannot balance the diffusion of the 'villains.' The disappearance of ceorl may be accounted for by the important fact that it was primarily the designation of a free man, and had not quite lost this sense even in the time immediately before the Conquest. The spread of the Latin term is characteristic enough in any case. It is well in keeping with a historical development which, though it cannot be reduced to an importation of foreign manners, was by no means a mere sequel to Saxon history.(45*) A new turn had been given towards centralisation and organisation from above, and villanus, the Latin record term, illustrates very aptly the remodelling of the lower stratum of society by the influence of the curiously centralised English feudalism.     The position of the peasantry gets considered chiefly from the point of view of the lord's interests, and the classification on the basis of services comes naturally to the fore. The distribution of holdings is also noticed, because services and rents are arranged according to them. But the most important fact remains, that the whole system, though admitting theoretically the difference between personal freedom and personal subjection, works itself out into Uniformity on the ground of unfree tenure. Freemen holding in villainage and born villains get mixed up under the same names. The fact has its two sides. On the one hand it detracts from the original rights of free origin, on the other it strengthens the element of order and legality in the relations between lord and peasant. The peasants are custumarii at the worst -- they work by custom, even if custom is regulated by the lord's power. In any case, even a mere analysis of terminological distinctions leads to the conclusion that the simplicity and rigidity of legal contrasts was largely modified by the influence of historical tradition and practical life.     Our next object must be to see in what shape the rights of the lord are presented by manorial documents. All expressions of his power may be considered under three different heads, as connected with one of the three fundamental aspects of the manorial relation. There were customs and services clearly derived from the personal subjection of the villain, which had its historical root in slavery. Some burdens again lay on the land, and not on the person. And finally, manorial exactions could grow from the political sway conferred by feudal lordship. It may be difficult to distinguish in the concrete between these several relations, and the constant tendency in practice must have been undoubtedly directed towards mixing up the separate threads of subjection. Still, a general survey of manorial rights has undoubtedly to start from these fundamental distinctions.     There has been some debate on the question whether the lord could sell his villains. It has been urged that we have no traces of such transactions during the feudal period, and that therefore personal serfdom did not exist even in law.(46*) It can be pointed out, on the other side, that deeds of sale conveying villains apart from their tenements, although rare, actually exist. The usual form of enfranchisement was a deed of sale, and it cannot be argued that this treatment of manumission is a mere relic of former times, because both the Frank and the Saxon manumissions of the preceding period assume a different shape; they are not effected by sale. The existing evidence entitles one to maintain that a villain could be lawfully sold, with all his family, his sequela, but that in practice such transactions were uncommon.(47*) The fact is a most important one in itself. The whole aspect of society and of its work would have been different if the workman had been a saleable commodity passing easily from hand to hand. Nothing of the kind is to be noticed in the medieval system. There is no slave market, and no slave trade, nothing to be compared with what took place in the slave states of North America, or even to the restricted traffic in Russia before the emancipation. The reason is a curious one, and forcibly suggested by a comparison between the cases when such trade comes into being, and those when it does not. The essential condition for commercial transfer is a protected market, and such a market existed more or less in every case when men could be bought and sold. An organised state of some kind, however slightly built, is necessary as a shelter for such transfer. The feudal system proved more deficient in this respect than very raw forms of early society, which make up for deficiencies in State protection by the facilities of acquiring slaves and punishing them. The landowner had enough political independence to prevent the State from exercising an efficient control over the dependent population, and for this very reason he had to rely on his own force and influence to keep those dependents under his sway. Personal dependence was locally limited, and not politically general, if one may use the expression. It was easy for the villain to step out of the precincts of bondage; it was all but impossible for the lord to treat his man as a transferable chattel. The whole relation got to be regulated more by internal conditions than by external pressure, by a customary modus vivendi, and not by commercial and state-protected competition. This explains why in some cases political progress meant a temporary change for the worse, as in some parts of Germany and in Russia: the State brought its extended influence to bear in favour of dependence, and rendered commercial transactions possible by its protection. In most cases, however, the influence of moral, economical, and political conceptions made itself felt in the direction of freedom, and we have seen already that in England legal doctrine created a powerful check on the development of servitude by protecting the actual possession of liberty, and throwing the burden of proof in questions of status on the side contending against such liberty.     But not all the consequences of personal servitude could be removed in the same way by the conditions of actual life. Of all manorial exactions the most odious was incontestably the merchetum, a fine paid by the villain for marrying his daughter.(48*) It was considered as a note of servile descent, and the man free by blood was supposed to be always exempted from it, however debased his position in every other respect. Our authorities often allude to this payment by the energetic expression 'buying one's blood' (servus de sanguine suo emendo). It seems at first sight that one may safely take hold of this distinction in order to trace the difference between the two component parts of the villain class. In the status of the socman, developed from the law of Saxon free-men, there was usually nothing of the kind. The maritagium of military tenure of course has nothing in common with it, being paid only by the heiress of a fee, and resulting from the control of the military lord over the land of his retainer. The merchetum must be paid for every one of the daughters, and even the granddaughters of a villain; it bad nothing to do with succession, and sprang from personal subjection.     When the bride married out of the power of the lord a new element was brought to bear on the case: the lord was entitled to a special compensation for the loss of a subject and of her progeny.(49*) When the case is mentioned in manorial documents, the fine gets heightened accordingly, and sometimes it is even expressly stated that an arbitrary payment will be exacted. The fine for incontinence naturally connects itself with the merchet, and a Glastonbury manorial instruction enjoins the Courts to present such cases to the bailiffs; the lord loses his merchet from women who go wrong and do not get married.(50*)     Such is the merchet of our extents and Court rolls. As I said, it has great importance from the point of view of social history. Still it would be wrong to consider it as an unfailing test of status. Although it is often treated expressly as a note of serfdom (51*), some facts point to the conclusion that its history is a complex one. In the first place this merchet fine occurs in the extents sporadically as it were. The Hundred Rolls, for instance, mention it almost always in Buckinghamshire, and in some hundreds of Cambridgeshire. In other hundreds of this last county it is not mentioned. However much we lay to the account of casual omissions of the compilers, they are not sufficient to explain the general contrast. It would be preposterous to infer that in the localities first mentioned the peasants were one and all descended from slaves, and that in those other localities they were one and all personally free. And so we are driven to the inference, that different customs prevailed in this respect in places immediately adjoining each other, and that not all the feudal serfs descended from Saxon slaves paid merchet.     If, on the one hand, not all the serfs paid merchet, on the other there is sufficient evidence to show that it was paid in some cases by free people. A payment of this kind was exacted sometimes from free men in villainage, and even from socage tenants, I shall have to speak of this when treating of the free peasantry; I advert to the fact now in order to show that the most characteristic test of personal servitude does not cover the whole ground occupied by the class, and at the same time spreads outside of its boundary.     This observation leads us to several others which are not devoid of importance. As soon as the notion arose that personal servitude was implied by the payment of merchet, -- as soon as such a notion got sanctioned by legal theory, the fine was extended in practice to cases where it did not apply originally. We have direct testimony to the effect that feudal lords introduced it on their lands in places where it had never been paid (52*), and one cannot help thinking that such administrative acts as the survey of 1279-1280, the survey represented by the Hundred Rolls, materially helped such encroachments. The juries made their presentments in respect of large masses of peasantry, under the preponderating influence of the gentry and without much chance for the verification of particular instances. The description was not false as a whole, but it was apt to throw different things into the same mould, and to do it in the interest of landed proprietors. Again, the variety of conditions in which we come across the merchet, leads us to suppose that this term was extended through the medium of legal theory to payments which differed from each other in their very essence: the commutation of the 'jus primae noctis,' the compensation paid to the lord for the loss of his bondwoman leaving the manor, and the fine for marriage to be levied by the township or the hundred, were all thrown together. Last, but not least, the vague application of this most definite of social tests corroborates what has been already inferred from terminology, namely, that the chief stress was laid in all these relations, not on legal, but on economic distinctions. The stratification of the class and the determination of the lord's rights both show traits of legal status, but these traits lose in importance in comparison with other features that have no legal meaning, or else they spread over groups and relations which come from different quarters and get bound up together only through economic conditions.     The same observations hold good in regard to other customs which come to be considered as implying personal servitude.(53*) Merchet was the most striking consequence of unfreedom, but manorial documents are wont to connect it with several others. It is a common thing to say that a villain by birth cannot marry his daughter without paying a fine, or permit his son to take holy orders, or sell his calf or horse, that he is bound to serve as a reeve, and that his youngest son succeeds to the holding after his death.(54*) This would be a more or less complete enumeration, and I need not say that in particular cases sometimes one and sometimes another item gets omitted. The various pieces do not fit well together: the prohibition against selling animals is connected with disabilities as to property, and not derived directly from the personal tie;(55*) as for the rule of succession, it testifies merely to the fact that the so-called custom of Borough English was most widely spread among the unfree class. The obligation of serving as a reeve or in any other capacity is certainly derived from the power of a lord over the person of his subject; he had it always at his discretion to take his man away from the field, and to employ him at pleasure in his service. Lastly, the provision that the villain may not allow his son to receive holy orders stands on the same level as the provision that he may not give his daughter in marriage outside the manor: either of these prohibited transactions would have involved the loss of a subject.     We must place in the same category all measures intended to prevent directly or indirectly the passage of the peasantry from one place to the other. The instructions issued for the management of the Abbot of Gloucester's estates absolutely forbid the practice of leaving the lord's land without leave.(56*) Still, emigration from the manor. from time to time the could not be entirely stopped, inhabitants wandered away in order to look out for fieldwork elsewhere, or to take up some craft or trade. In this case they had to pay a kind of poll-tax (chevagium), which was, strictly speaking, not rent: very often it was very insignificant in amount, and was replaced by a trifling payment in kind, for instance, by the obligation to bring a capon once a year.(57*) The object was not so much to get money as to retain some hold over the villain after he had succeeded in escaping from the lord's immediate sway. There are no traces of a systematic attempt to tax and ransom the work of dependents who have left the lord's territory nothing to match the thorough subjection in which they were held while in the manor. And thus the lord was forced in his own interest to accept nominal payments, to concentrate his whole attention on the subjects under his direct control, and to prevent them as far as possible from moving and leaving the land. In regulations for the management of estates we often find several paragraphs which have this object in view. Sometimes the younger men get leave to work outside the lord's possessions, but only while their father remains at home and occupies a holding. Sometimes, again, the licence is granted under the condition that the villain will remain in one of his lord's tithings(58*), an obligation which could be fulfilled only if the peasant remained within easy reach of his birth-place, Special care is taken not to allow the villains to buy free land in order to claim their freedom on the strength of such free possession.(59*) Every kind of personal commendation to influential people is also forbidden.(60*)     Notwithstanding all these rules and precepts, every page of the documents testifies to frequent migrations from the manors in opposition to the express will of the landowners. The surveys tell of serfs who settle on strange land even in the vicinity of their former home.(61*) It is by no means exceptional to find mention of enterprising landlords drawing away the population from their neighbours' manors.(62*) The fugitive villain and the settler who comes from afar are a well-marked feature of this feudal society.(63*)     The limitations of rights of property have left as distinct traces in the cartularies as the direct consequences of personal unfreedom. These two matters are connected by the principle that everything acquired by the slave is acquired by his master; and this principle finds both expression and application in our documents. On the strength of it the Abbot of Eynsham takes from his peasant land which had been bought by the latter's father.(64*) The case dates from the second half of the fourteenth century, from a time when the social conflict had become particularly acute in consequence of the Black Death, and of the consequent attempts on the part of landlords to stretch their rights to the utmost. But we have a case from the thirteenth century: the Prior of Barnwell quotes the abovementioned rule in support of a confiscation of his villain's land.(65*) -- In both instances the principle is laid down expressly, but in other cases peasants were deprived of their property without any formal explanation.     Of course, one must look upon such treatment as exceptional. But an important and constant result of the general conception is to be found in some of the regular feudal exactions. The villain has no property of his own, and consequently he cannot transmit property. Strictly speaking, there is no inheritance in villainage. As a matter of fact the peasant's property did not get confiscated after his death, but the heirs had to surrender a part of it, sometimes a very considerable one. A difference is made between chattels and land. As to the first, which are supposed to be supplied by the lord, the duty of the heir is especially onerous, On the land of the Bishopric of Lichfield, for instance, he has to give up as heriot the best head of horned cattle, all horses, the cart, the caldron, all woollen cloth, all the bacon, all the swine except one, and all the swarms of bees.(66*) The villains of St. Alban's have to give the best head of cattle, and all house furniture.(67*) But in most cases only the best beast is taken, and if there be no cattle on the tenement, then money has to be paid instead.(68*) The Cartulary of Battle is exceptionally lenient as to one of the Abbey's manors:(69*) it liberates from all duty of the kind those who do not own any oxen, It sometimes happens, on the other hand, that the payment is doubled; one beast is taken from the late occupier by way of heriot, and the other from his widow for the life interest which is conceded to her after the death of her husband.(70*) Such 'free bench' is regulated very differently by different customs. The most common requirement is, that the widow may not marry again and must remain chaste. In Kent the widow has a right to half the tenement for life, even in case of a second marriage; in Oxfordshire, if she marries without the lord's leave, she is left in possession only during a year and a day.(71*)     In all these instances, when a second payment arises alongside of the heriot, such a payment receives also the name of heriot because of this resemblance, although the two dues are grounded on different claims, The true heriot is akin in name and in character to the Saxon 'here-geat' -- to the surrender of the military outfit supplied by the chief to his follower. In feudal times and among peasants it is not the war-horse and the armour that are meant, ox and harness take their place, but the difference is not in the principle, and one may even catch sometimes a glimpse of the process by which one custom shades off into the other. On the possessions of St. Mary of Worcester, for instance, we find the following enactment:(72*) Each virgate has to give three heriots, that is a horse, harness, and two oxen; the half-virgate two heriots, that is a harnessed horse and one ox; other holdings give either a horse or an ox. In such connexion the payment has nothing servile about it, and simply appears as a consequence of the fact or assumption that the landlord has provided his peasant with the necessary outfit for agricultural work. And still the heriot is constantly mentioned along with the merchet as a particularly base payment, and though it might fall on the succession of a free man holding in villainage, it is not commonly found on free land. the fact that this old Saxon incident of dependence becomes in the feudal period a mark of servile tenure, is a fact not without significance.     It is otherwise with the relief (relevium), the duty levied for the resumption of the holding by the heir: it extends equally to military tenure and to villainage. Although the heriot and relief get mixed up now and then, their fundamental difference is realised by the great majority of our documents and well grounded on principle. In one case the chattels are concerned, in the other the tenement; one is primarily a payment in kind, the other a money-fine. As to the amount of the relief the same fluctuations may be traced as in the case of the heriot. the most common thing is to give a year's rent; but in some instances the heir must settle with the lord at the latter's will, or ransom the land as a stranger, that is by a separate agreement in each single case.(73*) Fixed sums occur also, and they vary accord ing to the size and quality of the holding.(74*)     On the boundary between personal subjection and political subordination we find the liability of the peasantry to pay tallage. It could be equally deduced from the principle that a villain has nothing of his own and may be exploited at will by his master or from the political grant of the power of taxation to the representative of feudal privilege. the payment of arbitrary tallage is held during the thirteenth century to imply a servile status.(75*) Such tallage at will is not found very often in the documents, although the lord sometimes retained his prerogative in this respect even when sanctioning the customary forms of renders and services. Now and then it is mentioned that the tallage is to be levied once a year,(76*) although the amount remains uncertain.     As a holder of political power the lord has a right to inflict fines and amercements on transgressors.(77*)  The Court-rolls are full of entries about such payments, and it seems that one of the reasons why very great stress was laid on attendance at the manorial Courts was connected with the liability to all sorts of impositions that was enforced by means of these gatherings. tenants had to attend and to make presentments, to elect officers, and to serve on juries; and in every case where there was a default or an irregularity of any kind, fines flowed into the lord's exchequer.     Lastly, we may classify under the head of political exactions, monopolies and privileges such as those which were called banalites in France: they were imposed on the peasantry by the strong hand, although there was no direct connexion between them and the exercise of any particular function of the State. English medieval documents often refer to the privileged mill, to which all the villains and sometimes the freemen of the Soke were bound to bring their corn.(78*) there is also the manorial fold in which all the sheep of the township had to be enclosed.(79*) In the latter case the landlord profited by the dung for manuring his land. Special attention was bestowed on supervising the making of beer. Court-rolls constantly speak of persons fined for brewing without licence. Every now and then we come across the wondrous habit of collecting all the villagers on fixed days and making them drink Scotale,(80*) that is ale supplied by the lord -- for a good price, of course.     Let us pass now to those aspects of manorial usage which are directly connected with the mode of holding land. I may repeat what I said before, that it would be out of the question to draw anything like a hard and fast line between these different sides of one subject. How intimately the personal relation may be bound up with the land may be gathered, among other things, from the fact that there existed an oath of fealty which in many places was obligatory on villains when entering into possession of a holding. This oath, though connected with tenure, bears also on the personal relation to the lord.(81*) The oath of fealty taken by the tenant in villainage differed from that taken by the freeholder in that it contained the words, 'I will be justified by you in body and goods;' and again the tenant in villainage, though he swore fealty, did no homage; the relationship between him and his lord was not a merely feudal relationship; the words, 'I become your man,' would have been out of place, and there could be no thought of the lord kissing his villain. But however intimate the connexion between both aspects of the question, in principle the tenure was quite distinct from the status, and could influence the condition of people who were personally free from any taint of servility.     The legal definition of villainage as unfree tenure does not take into account the services or economic quality of the tenure, and lays stress barely on the precarious character of the holding.(82*) The owner may take it away when he pleases, and alter its condition at will. The Abingdon Chronicle tells us (83*) that before the time of Abbot Faritius it was held lawful on the manors of the Abbey to drive the peasants away from their tenements. The stewards and bailiffs often made use of this right, if anybody gave them a fee out of greed, or out of spite against the holder. Nor was there any settled mode of succession, and when a man died, his wife and children were pitilessly thrown out of their home in order to make place for perfect strangers. An end was put to such a lawless condition of things by Faritius' reforms: he was very much in want of money, and found it more expedient to substitute a settled custom for the disorderly rule of the stewards. But he did not renounce thereby any of his manorial rights: he only regulated their application. The legal feature of base tenure -- its insecurity -- was not abolished on the Abingdon estates. Our documents sometimes go the length of explaining that particular plots are held without any sort of security against dispossession. We find such remarks in the Warwickshire Hundred Rolls for instance.(84*) Sometimes the right is actually enforced: in the Cartulary of Dunstable Priory we have the record of an exchange between two landlords, in consequence of which the peasants were removed from eight hides of land by one of the contracting parties.(85*)     The villain is in no way to be considered as the owner of the plot of land he occupies; his power of disposing of it is stinted accordingly, and he is subjected to constant control from the real owner. He cannot fell timber. oaks and elms are reserved to the lord.(86*) He cannot change the cultivation of the land of his own accord; it would be out of the question, for instance, to turn a garden-close into arable without asking for a licence.(87*) He is bound to keep hedges and ditches in good order, and is generally responsible for any deterioration of his holding. When he enters into possession of it, he has to find a pledge that he will perform his duties in a satisfactory manner.(88*) There can be no thought of a person so situated alienating the land by an act of his own will; he must surrender it into the hand of the lord, and the latter grants it to the new holder after the payment of a fine. The same kind of procedure is followed when a tenement is passed to the right heir in the lifetime of the former possessor.(89*) A default in paying rents or in the performance of services, and any other transgression against the interests of the lord, may lead to forfeiture.(90*) The lord takes also tenements into his hand in the way of escheat, in the absence of heirs. Court-rolls constantly mention plots which have been resumed in this way by the lord.(91*) The homage has to report to the steward as to all changes of occupation, and as to the measures which are thought necessary to promote the interests of the landowner and of the tenantry.(92*)     As to the treatment of tenure in manorial documents, it is to be noticed that a distinction which has no juridical meaning at all becomes all important in practice. At common law, as has been said repeatedly, the contrast between free land and servile land resolves itself into a contrast between precarious occupation and proprietary right. This contrast is noticed occasionally and as a matter of legal principle by manorial documents (93*) quite apart from the consequences which flow from it, and of which I have been speaking just now. But in actual life this fundamental feature is not very prominent; all stress is laid on the distinction between land held by rent and land held by labour. In the common phraseology of surveys and manorial rolls, the tenements on which the rent prevails over labour are called 'free tenements,' and those on the contrary which have to render labour services, bear the names of 'servile holdings.' This fact is certainly not to be treated lightly as a mere result of deficient classification or terminology. It is a very important one and deserves to be investigated carefully.     In the ancient survey of Glastonbury Abbey, compiled in 1189, the questions to be answered by the jury are enumerated in the following way: 'Who holds freely' and how much, and by what services, and by whose warrant, and from what time? Has land which ought to perform work been turned into free land in the time of Bishop Henry, or afterwards? By whose warrant was this change made, and to what extent is the land free? Is the demesne land in cultivation, or is it given away in free tenure or villain tenure; is such management profitable, or would it be better if this land was taken back by the lord?'(94*) The contrast is between land which provides labour and land which does not; the former is unfree, and villain tenure is the tenure of land held by such services; portions of the demesne given away freely may eventually be reclaimed. The scheme of the survey made in answer to these questions is entirely in keeping with this mode of classification. All holdings are considered exclusively from the economic point of view; the test of security and precarious occupation is never applied. It is constantly noticed, on the other hand, whether a plot pays rent or provides labour, whether it can be transferred from one category into the other, on what conditions demesne land has been given to peasants, and whether it is expedient to alter them. Let us take the following case as an instance: John Clerk had in the time of Bishop Henry one virgate in Domerham and holds it now, and another virgate in Stapelham for ten shillings. When he farmed the Domerham manor he left on his own authority the virgate in Stapelham and took half a virgate in Domerham, as it was nearer. This half virgate ought to work and is now free. And the virgate in Stapelbam, though it was free formerly, has to work now, after the exchange.(95*) The opposition is quite clear, and entirely suited to the list of questions addressed to the jury. The meaning of the terms free and freedom is also brought out by the following example. Anderd Budde holds half a virgate of demesne land, from the time of Bishop Henry, by the same services as all who hold so much. The village has to render as gift twenty-nine shillings and six pence. Six pence are wanting (to complete the thirty shillings?) because Anderd holds more freely than his ancestors used to.(96*)     Such phraseology is by no means restricted to one document or one locality. In a Ramsey Cartulary we find the following entry in regard to a Huntingdonshire manor: 'Of seven hides one is free; of the remaining six two virgates pay rent. The holder pays with the villains; he pays merchet and joins in the boon-work as the villains. The remaining five hides and three virgates are in pure villainage.'(97*) The gradation is somewhat more complex here than in the Somersetshire instance: besides free land and working land we have a separate division for mixed cases. But the foundation is the same in both documents. Earlier surveys of Ramsey Abbey show the same classification of holding into free and working virgates (liberae, ad opus(98*)).     In opposition to free service, that is rent, we find both the villenagium (99*) and the terra consuetudinaria or custoniaria,(100*) burdened with the usual rural work. Sometimes the document points out that land has been freed or exempted from the common duties of the village;(101*) in regard to manorial work the village formed a compact body. The notion which I have been explaining lies at the bottom of a curious designation sometimes applied to base tenure in the earlier documents of our period -- terra ad furcam et flagellum,(102*) fleyland. The Latin expression has been construed to mean land held by a person under the lord's jurisdiction, under his gallows and his whip, but this explanation is entirely false. The meaning is, that a base holding is occupied by people who have to work with pitchfork and flail, and may be other instruments of agriculture,(103*) instead of simply paying rent. In view of such a phraseology the same tenement could alternately be considered as a free or a servile one, according to its changing obligations.(104*) Some surveys insert two parallel descriptions of duties which are meant to fit both eventualities; when the land is ad opus, it owes such and such services; when it is ad censum, it pays so much rent. It must be added, that in a vast majority of cases rent-paying land retains some remnants of services, and, vice versa, land subjected to village-work pays small rents;(105*) the general quality of the holding is made to depend on the prevailing character of the duties.     The double sense in which the terms 'free tenure' and 'servile tenure' are used should be specially noticed, because it lays bare the intimate connexion between the formal divisions of feudal law and the conditions of economic reality. I have laid stress on the contrast between the two phraseologies, but, of course, they could not be in use at the same time without depending more or less on each other. And it is not difficult to see, that the legal is a modification of the economic use of terms, that it reduces to one-sided simplicity those general facts which the evidence of every day life puts before us in a loose and complex manner; that land is really free which is not placed in a constant working submission to the manor, in constant co-operation with other plots, similarly arranged to help and to serve in the manor. However heavy the rent, the land that pays it has become independent in point of husbandry, its dependence appears as a matter of agreement, and not an economic tie. When a tenement is for economic purposes subordinated to the general management of the manor, there is almost of necessity a degree of uncertainty in its tenure; it is a satellite whose motions are controlled by the body round which it revolves. On the other hand, mere payments in money look like the outcome of some sort of agreement, and are naturally thought of as the result of contract.     Everything is subject to the will and pleasure of the lord; but this will and pleasure does not find expression in any capricious interference which would have wantonly destroyed order and rule in village life. Under cover of this will, customs are forming themselves which regulate the constantly recurring events of marriage, succession, alienation, and the like. Curious combinations arise, which reflect faithfully the complex elements of village life. An instruction for stewards provides, for instance, that one person ought not to hold several tenements; where such agglomerations exist already they ought to be destroyed, if it can be done conveniently and honestly.(106*) In one of the manors of St. Paul of London the plots held by the ploughmen are said to be resumable by the lord without any injury to hereditary succession.(107*) 'The rule of hereditary succession' is affirmed in regard to normal holdings by this very exception. We find already the phrase of which the royal courts availed themselves, when in later days they extended their protection to this base tenure: the tenants hold 'by the custom of the manor.'(108*) On the strength of such custom the life of the unfree peasantry takes a shape closely resembling that of the free population; transactions and rights spring into being which find their exact parallel in the common law of the 'free and lawful' portion of the community. Walter, a villain of St. Alban's, surrenders into the hand of the monastery two curtilages, which are thereupon granted to his daughter and her husband for life, upon condition that after their death the land is to revert to Walter or to his heirs.(109*) An Essex villain claims succession by hereditary right, for himself and his heirs.(110*) I have already spoken of the 'free bench' to be found equally on free and unfree land. In the same way there exists a parallel to the so-called 'Curtesy of England' in the practice of manorial courts; if the son inherits land from his mother during his father's life, the latter enjoys possession during his life, or, it may be. only until his son comes of age. In view of all this manorial documents have to draw a distinction between tenements in villainage and land held at the will of the lord, not in the general, but in the special and literal sense of the term.(111*) From a formal point of view, villain tenure by custom obtained its specific character and its name from a symbolical act performed in open Court by the steward; a rod was handed over to the new holder by the lord's representative, and a corresponding entry made in the roll of the Court. Hence the expression tenere per virgam aut per rotulum Curie.(112*)     I ought perhaps to treat here of the different and interesting forms assumed by services and rents as consequences of manorial organisation. But I think that this subject. will be understood better in another connexion, namely as part of the agrarian system. One side only of it has to be discussed here. Everywhere customs arise which defend the villains from capricious extortions on the part of the lord and steward. These customs mostly get 'inbreviated'(113*) described in surveys and cartularies, and although they have no legally binding power, they certainly represent a great moral authority and are followed in most cases.     A very characteristic expression of their influence may be found in the fact that the manorial rolls very often describe in detail, not only what the peasants are bound to do for the lord, but what the lord must do for the peasants; especially when and how he is to feed them. Of course, the origin of such usage cannot be traced to anything like a right on the part of the villain; it comes from the landlord's concessions and good-will, but grace loses its exceptional aspect in this case and leads to a morally binding obligation.(114*) When the villain brings his yearly rent to his lord, the latter often invites him to his table.(115*) Very common is the practice of providing a meal for the labourers on the boon-days, the days on which the whole population of the village had to work for the lord in the most busy time of the summer and autumn. Such boon-work was considered as a kind of surplus demand; it exceeded the normal distribution of work. It is often mentioned accordingly that such service is performed out of affection for the lord, and sometimes it gets the eloquent name of 'love-bene.' In proportion as the manorial administration gets more work done in this exceptional manner, it becomes more and more gracious in regard to the people. 'Dry requests' (siccae precariae) are followed by 'requests with beer' (precariae cerevisiae). But it was not beer alone that could be got on such days. Here is a description of the customs of Borle, a manor belonging to Christ Church, Canterbury, in Essex. 'And let it be known that when he, the villain, with other customers shall have done cutting the hay on the meadow in Raneholm, they will receive by custom three quarters of wheat for baking bread, and one ram of the price of eighteen pence, and one pat of butter, and one piece of cheese of the second sort from the lord's dairy, and salt, and oatmeal for cooking a stew' and all the morning milk from all the cows in the dairy, and for every day a load of hay. He may also take as much grass as he is able to lift on the point of his scythe. And when the mown grass is carried away, he has a right to one cart. And he is bound to carry sheaves, and for each service of this kind he will receive one sheaf, called "mene-schef." And whenever he is sent to carry anything with his cart, he shall have oats, as usual, so much, namely, as he can thrice take with his hand.(116*)     All such customs seem very strange and capricious at first sight. But it is to be noticed that they occur in different forms everywhere, and that they were by no means mere oddities; they became a real and sometimes a heavy burden for the landlord. The authorities, the so-called 'Inquisitiones post mortem' especially, often strike a kind of balance between the expense incurred and the value of the work performed. By the end of the thirteenth century it is generally found that both ends are just made to meet in cases of extra work attended by extra feeding, and in some instances it is found that the lord has to lay out more than he gets back.(117*) The rise in the prices of commodities had rendered the service unprofitable. No wonder that such 'boon-work' has to be given up or to be commuted for money.     These regularly recurring liberationes or liberaturae as they are called, that is, meals and provender delivered to the labourers, have their counterpart in the customary arrangement of the amount and kind of services. I shall have to speak of their varieties and usual forms in another connexion, but it must be noticed now, that these peasants unprotected at law were under the rule of orderly custom. W e have seen already that the payments and duties which followed from the subjection of the villains were for the most part fixed according to constant rules in each particular case. The same may be said of the economical pressure exercised in the shape of service and rent. It did not depend on the caprice of the lord, although it depended theoretically on his will. The villains of a manor in Leicestershire are not bound to work at weeding the demesne fields unless by their own consent, that is by agreement.(118*) A baker belonging to Glastonbury Abbey is not bound to carry loads unless a cart is provided him.(119*) A survey of Ely mentions that some peasants are made to keep a hedge in order as extra work and without being fed. But it is added that the jurors of the village protest against such an obligation, as heretofore unheard of.(120*) All these customs and limitations may, of course, be broken and slighted by the lord, but such violent action on his part will be considered as gross injustice, and may lead to consequences unpleasant for him -- to riots and desertion.     It is curious that the influence of custom makes itself felt slowly but surely among the most debased of the villains. The Oxfordshire Hundred Roll treats for instance of the servi of Swincombe. They pay merchet; if any of them dies without making his will the whole of his moveable property falls to the lord. They are indeed degraded. And still the lord does not tallage them at pleasure, they are secure in the possession of their waynage (salvo contenemento).(121*)     We may sum up the results already obtained by our analysis of manorial documents in the following propositions: --     1. The terminology of the feudal period and the treatment of tenure in actual life testify to the fact that the chief stress lay more on tenure than on status, more on economical condition than on legal distinctions.     2. The subdivisions of the servile class and the varieties of service and custom show that villainage was a complex mould into which several heterogeneous elements had been fused.     3. The life of the villain is chiefly dependent on custom, which is the great characteristic of medieval relations, and which stands in sharp contrast with slavery on the one hand and with freedom on the other.

NOTES:

1. Thorold Rogers has made great use of this last class of manorial documents in his well-known books.

2. Bracton, 271 b.

3. Bracton, 124.

4. Cartulary of Malmesbury (Rolls Series), ii. 186: 'Videlicet quod prefatus Ricardus concessit praedictis abbati et conventui et eorum tenentibus, tam rusticis, quam liberis quod ipsi terras suas libere pro voluntate sua excolant.'

5. As to the Warwickshire Hundred Roll in the Record Office, see my letter in the Athenaeum, 1883, December 22.

6. Rot. Hundred. ii. 471, a: 'Libere tenentes prioris de Swaveseia.... Henricus Palmer 1 mesuagium et 3 rodas terre reddens 12 d. et 2 precarias. Servi Adam scot tenet 10 acras reddens 4s. et 6 precarias.... Cotarii.....'

7. Rot. Hundred. ii. 715. a: 'In servitute tenentes. Assunt et ibidem 10 tenentes qui tenent 10 virgatas terre in villenagio et operantur ad voluntatem domini et reddunt per annum 25 s.'

8. Rot. Hundred. ii. 690. 691: 'Villani servi-custumarii. Et tenent ut villani, ut servi, ut libere tenentes.' Rot Hundred. ii. 544, b: 'De custumariis Johannes Samar tenet 1 mesuagium et 1 croft.... per servicium 3 sol. 2 d. et secabit 2 acras et dim., falcabit per 1 diem. De servis. Nicholaus Dilkes tenet 15 acras -- et faciet per annum 144 opera et metet 2 acras. De aliis servis.... De cotariis.... De aliis cotariis.'

9. Rot. Hundred. ii. 528, a: 'Henr. de Walpol habet latinos (corr. nativos), qui tenent 180 acras terre et redd. 10 libr. et 8 sol. et 4 d. et ob. Nomina eorum qui tenent de Henrico de Walpol in villenagio.' Chapter House, County Boxes, Salop. 14, c: 'Libere tenentes.... Coterelli.... Nativi.'

10. Hale, in his Introduction to the Domesday of St. Paul's, xxiv, speaks of the 'nativi a principio' of Navestock, and distinguishes them from the villains. 'The ordinary praedial services due from the tenentes or villani were not required to be performed in person, and whether in the manor or out of it the villanus was not in legal language "sub potestate domini." Not so the nativus.' Hale's explanation is not correct, but the twofold division is noticed by him.

11. Domesday of St. Paul's, 157 (Articuli visitationis): 'An villani sive custumarii vendant terras. Item, an nativi custumarii maritaverunt filias-vel vendiderint vitulum -- vel arbores -- succidant.' A Suffolk case is even more clear. Registrum cellararii of Bury St. Edmunds, Cambridge University Gg. iv. 4, f 30, b: 'Gersumarius vel custumarius qui nativus est.... Antecessor recognovit se nativum domini abbatis in curia domini regis.'

12. Cartulary of Eynsham in Oxfordshire, MS. of the Chapter of Christ Church in Oxford, N. 27, p. 25, a: 'In primis Willelmus le Brewester nativus domini tenet de dictis prato et terris...'

13. Eynsham Cartulary, 49, b: 'Johannes Kolyns nativus domini tenet I virgatam terre cum pertinenciis in bondagio.'

14. Cartulary of St. Mary of Worcester (Camden Series), 15. a: 'Nativi, cum ad aetatem pervenerint nisi immediate serviant patri-faciant 4 benripas et forinsici similiter.' Survey of Okeburn, Q. R, Anc. Miscell. Alien Priories, 2/2: 'Aliquis nativus non potest recedere sine licencia neque catalla amovere nec extraneus libertatem dominorum ad commorandum ingrediat sine licentia.'

15. Domesday of St. Paul's, 80: 'Nativi a principio. Isti tenent terras operarias.'

16. Queen's Remembrancer's Miscellanies, 902-62: 'Rotuli de libertate de Tynemouth, de liberis hominibus, non de nativis.'

17. Queen's Remembrancer's Miscellanies, 902 77: 'Nativi de Sebrighteworth (Proavus extraneus).' See App. X.

18. Warwickshire Hundr. Roll, Queen's Remembrancers Miscellaneous Books, 29, 19, b: 'Johannes le Clerc tenet 1 virg. terre pro eodem sed est libere condicionis.' Augment. Off., Duchy of Lancaster, Court Rolls, Bundle 32, 283: 'Unum mesuagium et 19 acre terre in Holand que sunt in manu domini per mortem W. qui eas tenuit in bondagio, Ipse fuit liber, quia natus fuit extra libertatem domini.'

19. Glastonbury Inquisitions of 1189 (Roxburghe Series), 48: 'Radulfus niet tenet dimidiam virgatam.'

20. Glastonbury Inquis. Roxburghe Series), 26: 'Rogerus P. tenet virg. terre: pro una medietate dat. xxx d et pro alia medietate operatur sicut neth et seminat dimidiam acram pro churset et dat hueortselver.' Ibid. 22: 'Osbertus tenet I viriatam terre medietatem pro ii sol. et dono et pro alia medietatc Operatur quecumque jussus fuerit sicut neth' Cartulary of Abingdon (Rolls Series, ii. 304: 'Illi sunt ncti de villa. Aldredus de Brueria 5 sol. pro dimidia hida et arat et varectat et seminat acram suo semine et trahit foenum et bladuin.' Ibid. ii. 302: 'Bernerius et filius suus tenent unam cotsetland unde reddunt cellario monachorum 6 sestaria mellis et Camerae 31 d.' 'De netis. Robertus tenet dimidiam hidam unde reddit 5 sol. et 3 den. et arabit acram et seminabit semine sUo et trahet foenum et bladum. Hoc de netis.'

21. Black Book of Rochester Cathedral (ed. Thorpe, 10. a: Consuetudines de Hedenham et de Cudintone. Dominus potest ponere ad opera quem. cumque voluerit de netis suis in die St. Martini. Et sciendum quod neti idem sunt quod Neiatmen qui aliquantulum liberiores sunt quam cotmen, qui omnes habent virgatas ad minus.'

22. Cartulary of Shaftesbury, Harl. MSS. 61, f 60: 'Et habebit unum animal quietum in pastura, si est net, et de aliis herbagium. Et si idem fuerit cotsetle debet operari 2 diebus.' Ibid. 59: 'Tempore Henrici Regis fuerunt in T 18 Neti sed modo non sunt nisi 11 et ex 7 qui [non] sunt Nicholaus tenet terram [trium] et 4 sunt in dominico; et 7 cotmanni fuerunt tempore Henrici Regis qui non sunt modo, quorum trium tenet terram Nicholaus et 4 sunt in dominico.' Ibid. 65: 'Cotsetle... debet metere quantum unus nieth... et debet collocare messem vel... aliud facere... dum Neth messem attrahat... pannagium sicut Neth.' Ibid. 89: 'Si moriatur cotsetle pro diviso dabit 12 d. et vidua tenebit pro illo id divisum tota vita sua. Si moriatur neatus dabit melius catellum et pro hoc tenebit quietus.'

23. Glastonbury Inquis. 51: 'Et nieti tenent 9 acras unde reddunt 3 s,' Ibid. 47; 'Nieti habent unum pratum pro 5s.'

24. Glastonbury Inquis. 105: 'Ernaldus buriman dimidiam virgatam, Iohannes burimannus dimidiam virgatam.' Cf Custumal of Bleadon, p. 189; Cartulary of Shaftesbury, Harl. MSS. 61, f. 45.

25. It is to be found sometimes out of the Danish shires, e.g. in Oxfordshire. Rot. Hundred. ii, 842, b: 'Bondagium: Johannes Bonefaunt tenet unam virgatam terre de eodem Roberto... reddit... 11 sol. pro omni servicio et scutagium quando currit 20 d.' Of course there were isolated Danish settlenments outside the Denelaw.

26. Rot. Hundred. ii. 486, a: 'Tenentes Alicie la Blunde. Bondi.' A. habet in eadem villa 2 villanos, quorum quilibet tenet mesuagium cum 30 a. Id. Al. hab. 1 bondum qui ten. 20 a. Custumarii, Id. Al. habet 1 villanum, qui tenet I mes. cum 44 a.' Rot Hundred. ii. 486, a: 'De W. le Blunde. Villani., R. de Badburnham. Bondi cotarii.' Cf Ibid. 422, b; 423, a: 'Libere tenentes.... Custumarii.... Bondi.'

27. Ramsey Inquisitions, Galba, E. x. 34: 'W.L. tenet in landsetagio 12 a. pro 9 den. et ob. R. 24 a. de landsetagio et 12 a. de novo.' Cartulary of Ramsey (Rolls Series), i. 426: 'G. C. dat dim. marcam ut K. filius suus fiat heusebonde de 6 a. terrae de lancetagio.' Registr. Cellararii of Bury St Edmund's, Cambridge University, Gg. iv. 4, f 400, b: '9 acre unde 4 a. fuerunt libere et 5 lancettagii.' Cartulary of Ramsey Rolls Series), i. 425: 'S. Cl. recognovit, quod 24 a., quas tenet, sunt in lanceagio dom. Abbatis salvo corpore suo et quod faciet omnes consuetudines serviles.... lancectus nacione.'

28. Domesday of St. Paul's, 17: 'Item omnes operarii dimidiae virgatae debent invenire vasa et utensilia ter in anno ad braciandum.' Cf 28.

29. Rot. Hundred. ii. 422, 423. Cf 507, a: 'Libere tenentes... Nicholaus Trumpe 3 a. terre cum mesuagio et red. per ann. 20 d. Custumarii... Nicholaus Trumpe ten. I a. terre et redd. 2 sol.'

30. Exch. Q. R. Misc. Alien Priories, 2/2. (Chilteham): '.... Redditus villanorum de 126 villanis 41 libre, 14 s. II d. Item sunt 70 custumarii qui debent arare bis per annum cum 17 carucis.... Item sunt 25 villani qui debent herciare quilibet eorum per 2 dies,' etc.

31. Cartulary of St. Peter of Gloucester (Rolls Series), iii. 203: 'Omnes consuetudinarii majores habebunt tempore falcationis prati unum multonem, farinam, et salem ad potagium. Et minores consuetudinarii habebunt quilibet eorum I panem et omnes I caseum in communi, unam acr. frumenti pejoris campi de dominico et unum carcasium multonis, et unum panem ad Natale.'

32. Cartulary of Malmesbury (Rolls Series), i. 154, 155. Cf. i. 186, 187. Cartulary of St. Mary of Worcester (Camden Society), 43, b; Rot. Hundred. ii. 775, b.

33. Rot Hundred. ii. 602, a. Cf Exch. Q. R. Alien Priories, 2/2: 'Item sunt in eadem villata de Wardeboys 6 dimidias virgatas -- que vocantur Akermannelondes, quorum W.L. tenet 1/2 virgatam pro qua ibit ad carucam Abbatis si placeat abbati vel dabit sicut illi qui tenent 6 Maltlondes preter 15d.' Rot. Hundred. i. 208: 'Utrum akermanni debent servicium suum vel servicii redempcionem.'

34. Registr. Cellararii of Bury St. Edmund's, Cambridge University, Gg. iv. 4, f 26: 'Gersumarii (Custumarii).... Gersuma pro filia sua maritanda.' Ibid. 108, b: 'Tenentes 15 acrarum custumarii -- omnes sunt gersumarii ad voluntatem domini.' Cartulary of Bury St. Edmund's, Harl. MSS. 3977, f 87, d: 'Nichol. G. gersumarius tenet 30 a. pro 8 sol. que solent esse custumarie.' I may add on the authority of Mr. F. York Powell that landsettus (land-seti), as well as akermannus (aker-madr) and gersuma (gorsemi), are certainly Danish loan-words, which accounts for their occurrence in Danish districts.

35. Hale, Introduction to the Domesday of St. Paul's, XXV: 'If we compare the services due from the Hidarii with those of the libere tenentes on other manors, it will be evident, that the Hidarii of Adulvesnasa belonged to the ordinary class of villani, their distinction being probably only this, that they were jointly, as well as severally, bound to perform the services due from the hide of which they held part.'

36. Eynsham Inquest, 49, a: 'Summa (prati) xvi a. et iv perticas que dimide. bantur xi virgatariis et rectori ut uni eorum et quia jam supersunt tantummodo 4 virgatarii et rector, dominus habet in manu sua 7 porciones dicti prati.'

37. Cartulary of Battle, Augmentatlon Office, Miscell. Books, 57, f. 35, s: 'yherdlinges.... custumarii.' Ibid. 42, b: 'Majores Erdlinges scil. virgarii. Halferdlinges (majores cottarii) Minores cottarii.'

38. Black Book of Peterborough, 164: 'In Scotere et in Scaletorp -- 24 plenarii villani et 2 dimidii villani Plenarii villani operantur 2 diebus in ebdomada.'

39. Glastonbury Inqu. (Roxburghe Series), 23: 'Operatur ut alii ferlingseti.'

40. Glastonbury Inqu. (Roxburghe Series), 137: 'Cotsetle debent faldiare ab Hoccade usque ad festum S. Michaelis.' Cartulary of St. Peter of Gloucester (Rolls Series), iii. 71: 'Burgenses Gloucestriae reddunt una cum aliis tenentibus ad manerium Berthonae praedictae per annum de coteriis cum curtillagiis in suburbio Gloucestriae quorum nomina non recolunt 29 solidos 7 d. de redditu assiso.' Ibid. iii. 116: 'Cotlandarii: Johannes le Waleys tenet unum mesuagium cum curtillagio et faciet 8 bederipas et 3 dies ad fenum levandum, et valent 131/2d.'

41. Norfolk Feodary, Additional MSS. 2, a: 'Et idem Thomas tenet de predicto Roberto de supradicto feodo per predictum servicium sexaginta mesuagia; 21 villani de eodem Thoma tenent. Item idem Thomas tenet de predicto Roberto 9 cotarios, qui de eo tenent in villenagio.' Cf Rot. Hundred. ii. 440, a.

42. Cartulary of Battle, Augment. Office, Misc. Books, 57, f. 37, b. ' Virgarii.... Cotarii, qui tenent dimid. virgatam.' Ibid. 36, b: 'Cottarii majores et minores.'

43. Glastonbury Inquis. (Roxburghe Series), 114: 'Rad. Forest. 1/2 cotsetland pro 18 d. et operatur sicut dimidius cotarius sed non falcat.'

44. Glastonbury Inquis. ( Roxburghe Series), 14: 'Predictus W. habet tres bordarios in auxilium officii sui. llli tres bord. habent corredium suum in aula abbatis, in qua laborant.' Terrae Templariorum, Queen's Rem. Misc. Books, 16, f. 27. 'Unusquisque bordarius debet operari una die in ebdomada.' Cf. 27, b.

45. The history of the terms in Saxon times and the terminology of the Domesday Survey will be discussed in the second volume. My present object is to establish the connexion between feudal facts and such precedents as are generally accepted by the students of Saxon and early Norman evidence.

46. Thorold Rogers, History of Agriculture and Prices, i. p 71.

47. Glastonbury Cart., Wood MSS., i. f 225, b (Bodleian Libr.): 'Noverit universitas vestra me vendidisse domino Ricardo vicario de Domerham Philippum Hardyng nativum meum pro 20 solidis sterling unde ego personam ipsius Philippi ab omni nativitate et servitute liberavi.' Cf. Gloucester Cartulary (Rolls Series), ii. 4. Madox, Formulare Anglicanum, 416, gives several deeds of sale and enfranchisement by sale. Dr Stubbs had some doubts about the time of these transactions, but deeds of sale of the twelfth and thirteenth centuries occur, and are preserved in the Record Office. See Deputy Keeper's Reports, XXXVI. p. 178.

48. Glastonbury Inquis., tempore abb. Michaelis, Addit. MSS. 17,450, f 7: 'Petrus filius Margarete tenet virgatam terre.. nec potest filiam suam maritare sine licentia domini vel ballivorum.' Cf Cartulary of Newent, Add MSS. 15, 668, f 46: 'emit filiam suam.' Cartulary of St. Peter of Gloucester (Rolls Series), iv. 219: 'Item, quod quilibet praepositus habeat potestatem concedendi cuicunque nativae, ut possit se maritare tam extra terram domini quam infra, acceptis tamen salvis plegiis pro ea de fine faciendo ad proximam curiam; cum si forte praesentiam ballivi expectasset in partibus remotioribus agentis casu interveniente forte nunquam gauderet promotione maritali.'

49. Cartulary of Christ Church, Canterbury, Harl. MSS. I006, f 55: 'Tenens de monday land, si filiam infra villam maritaverit 16 d. et si extra homagium 2 sol.' Black Book of Coventry, Ashmol. MSS. 864, f 5: 'Radulfus Bedellus de 10 hidis tenet I virgatam terre et prati. Et dabit merchettam pro filia sua maritanda, si eam maritaverit extra villenagium Episcopi.'

50. Cartulary of Glastonbury, Wood MSS. i. (Bodleian), f 111. S: 'Si nul de neffes folement se porte de son corps parque le seignour perd la vente de eux.'

51. Warwickshire Hundred Roll, Queen's Rem. Misc. Books, No. 26, f 26, a: 'Redempcio carnis et Sanguinis et alia servicia ad voluntatem domini.' Rot. Hundred. ii. 335, b: 'In villenagio 8 virgate terre quarum quelibet debet ei per annum 6 s. vel opera ad valorem, tenentes etiam illarum sunt servi de sanguine suo emendo ad voluntatem dicti Abbatis et ad alia facienda, que ad servilem condicionem pertinent. In cottariis cotagia 6 de eadem servitute et condicione.'

52. How very difficult it was sometimes to decide the question, whether merchet had been paid or not, may be seen from the following instances: Coram Rege, 27 Henry III, m. 3: 'Et non possunt inquirere nec scire quod tempore Johannis Regis dederunt merchettum vel heryettum sed bene credunt quod hoc fuit ex permissione ipsius Regis et non per aliquam convencionem, quam fecerat eis pro predictis 50 libris.' Cartulary of Ramsey (Rolls Series), i. 441: 'De merchetto nesciunt sine majori consilio.'

53. Y. B. 21/22 Edw. I, p. 107.

54. Note-book of Bracton, pl. 1230.

55. Gloucester Cartulary (Rolls Series), iii. 218: 'Item quod non permittitur, quod aliquis vendat equum masculum vel bovem sibi vitulatum sine licentia, nisi consuetudo se habeat in contrarium.' Rot. Hlindred. ii. 628, a: 'Si habeat equum pullanum, bovem vel vaccam ad vendendum, dominus propinquior erit omnibus aliis et vendere non debent sine licentia domini.' Rochester Cartulary (ed. Thorpe), 2, a: 'Si quis habuerit pullum de proprio jumento aut vitulum de propria vacca et pervenerit ad perfectam etatem, non poterit illos vendere, nisi prius ostendat domino Suo et sciat utrum illos velit emere sicut alios.' Rot. Hundred. ii. 463, a: 'Item si ipse habeat pullum vel boviculum et laboraverit cum illo non potest vendere sine licentia domini, sed si non laboraverit licitum.'

56. Cartulary of St. Mary of Beaulieu, Nero, A. xii. f 93, b: 'Pro filio coronando et pro licencia recedendi faciet sicut illi.' Cartulary of St. Peter of Gloucester (Rolls Series), iii. 218: 'Item quod nullo masculo tribuatur licentia recedendi a terra domini sine licentia superioris hoc proviso, quod consuetudines a servis dominus debitas ad plenum recipiat, contradicentes attachiando ut inde respondeant ad curiam.'

57. Duchy of Lancaster Court Rolls, Bundle 85, No. 1157 (Record Office: 'Et quia non sunt residentes dant chevagium., Lancaster Court Rolls, Bundle 62, No. 750, m. I: 'Johannes le Grust dat comiti ii solidos et ii capones ut possit manere ubi sibi placuerit.'

58. Lancaster Court Rolls, Bundle 62, No. 750, m. 3: 'Capones de reditu ut custumarii possint manere super terram Radulfi de Wernore sed dictus Will. erit in visu franciplegii dom. comitis.'

59. Suffolk Court Rolls (Bodleian), 3: 'Preceptum inquirere nomina eorum qui terram servilem vendiderunt per cartam et quibus, et qui sunt qui terram liberam adquisierunt et ibi resident et prolem suscitant et ob hoc libertatem sibi vindicant.' Cartulary of St. Alban's, 454: 'Ubi villani emunt terras liberorum de catallis nostris.'

60. Cart. Glouc. (Rolls Ser.), iii. 217: 'Item, inhibeatur nativis domini manerii ne aliquid alicui dent per annum in recognitione, ut aliquo gaudeant patrocinio.'

61. Lancaster Court Rolls, Bundle 62, No. 756, m. I: 'Nativus receptatus apud Latfeld sine licentia domini.'

62. Cartulary of Shaftesbury, Harl. MSS. 61, f 59: 'Fugitivi domine, R. fil. Al. manet in Br. Sub Willelmo.' Ramsey Inqu., Galba E. x. f. 27, b: 'Isti sunt nativi abbatis: E. et O. manent apud Gomcestre.' Ibid. 51: 'A. est nativus domini abbatis, sed dicit se esse hominem episcopi.' Cartulary of Shaftesbury, Harl. MSS. 61, f 59: 'Nicholaus habet 4 nativos domine, partiln terram tenentes in calumpnia domine partim super terram Nicholai.'

63. Coram Rege, Pasch. 7 Edw. I, m. 7: 'Villanus fugitivus an in villenagio tenens et adventicius.'

64. Eynsham Inqu. (Chapter of Christ Church, Oxford), 25, a: 'Quas Adam pater ipsius adquisivit et quia quicquid servis adquiritur domino adquiritur faciat inde dominus quod sibi videatur expediens.'

65. Register of St. Mary of Barnwell, Harl. MSS. 3601, f 60: 'Quidam villanus de Bertone tenuit unum mesuagium de duobus dominis...... quicquid servus acquirit acquiritur domino suo.'

66. Black Book of Coventry, Ashmol. MSS. 864, f 6: 'Et cum obierit, dominus habebit suum melius animal et nihilominus habebit omnes equos masculos, carrectam ferratam, ollum eneum, pannum laneum integrum, bacones integros, omnes porcos excepta una sue, et omnes ruscos apium, si qua hujusmodi habuerit.'

67. Formulary of St. Alban's, Camb. Univ., Ee. iv. 20.

68. Lancaster Court Rolls. Bundle 32, No. 283: 'Petrus filius Gerardi nativus domini defunctus est et habuit in bonis domino pertinentibus unam vaccam que appreciatur ad 5 sol. et venditur W. instauratori.' Cartulary of Christ Church, Canterbury, Addit. MSS. 6157, f 25, b: 'Et sciendum, quod si quis custumarius domini in ipso manerio obierit, dominus habebit de herietto meliorem bestiam. Et si bestiam non habuerit, dabit domino pro herietto 2 sol. 6d.'

69. Cartulary of Battle, Augment. Off. Misc. Books, No. 57, f 21, a: 'Et post mortem cujuslibet predictorum nativorum dominus habebit pro herieto melius animal, si quod habuerit, si vero nullam vivam bestiam habeant, dominus nullum herietum habebit ut dicunt. Filii vel filiae predictorum nativorum dabunt pro ingressu tenementi post mortem antecessorum suorum tantum sicut dant de redditu per annum.

70. Gloucester Cartulary, iii. 193: 'Et post decessum suum dominus.habebit. melius auerium ejus nomine herieti, et de relicta similiter. Et post mortem ejus haeres faciet voluntatem domini, antequam terram ingrediatur.'

71. Gloucester Cartulary (Rolls Series), iii. 208: 'Dicunt etiam quod relicta sua non potest in dicta terra maritari sine licentia domini.' Cartulary of Christ Church, Canterbury, Add. MSS. 6159, f 25, b: 'Si autem per licenciam domini se maritaverit, heredes predicti defuncti predictum tenementum per licenciam domini intrabunt et uxorem relictam dicti defuncti de medietate dicti tenementi dotabunt.' Rot. Hundred. ii. 768, b: 'Item si obierit, dominus habebit melius auerium nomine herietti et per illum heriettum sedebit uxor ejus vidua per annum et unum diem et si ulterius vidua esse voluerit faciet voluntatem domini.' -- The custom in some of the manors of St. Peter of Gloucester was peculiar. Gloucester Cartulary (Rolls Series), iii. 88: 'Matilda relicta Praepositi tenet dim. virg. contin. 24 a. (8 sol.) Et tenet ad terminum vitae abbatis... Et debet redimere filium et filiam ad voluntatem domini... Et si obierit, dominus habebit melius auerium nomine domini, et aliud melius auerium nomine rectoris, et de marito cum obierit similiter.' When the lord was an ecclesiastical corporation he not unfrequently got two beasts, one as a heriot and the other as a mortuary due to him as rector of the parish.

72. Worcester Cartulary (Camden Series), 102: 'De antiquis consuetudinibus villanorum, quaelibet etiam virgata dabit iii heriet, sc. equum cum hernesio et duos boves, et dimidia virgata duos heriet, sc. equum cum hernesio et bovem. Alii autem dabunt equum vel bovem.'

73. Glastonbury Inqu. (Roxburghe Series), 89, a: 'Item non vendet bovem vel equum de sua nutritura sine licencia domini, nec coronare faciet filium nec maritabit filiam sine licencia domini, dabit heriettum melius animal, faciet finem cum domino pro ingressu habendo ad voluntatem domini communiter per 40 solidos et omnia alia faciet que nativo incumbunt.' The relief ought to be discussed in connexion with the obligations of the holding. I speak of it here because the documents mention it almost always with the heriot.

74. Cartulary of St. Mary of Beaulieu, Nero, A. XX. f 84, b: 'Pro filio coronando, filia maritanda, fine terre... secundum qualitatem personarum et quantitatem substancie et terre.'

75. Rot. Hundred. ii. 747, a: 'Debet talliari ad voluntatem domini quolibet anno.'

76. Ibid. ii. 528, b: 'Et debet talliari ad voluntatem domini semel in anno et debet gersummare filiam et fieri prepositus ad voluntatem domini.'

77. Cartulary of Battle, Augment. Off. Misc. Books, No. 57, f 93, a: 'Amerciamenta tenentium, qui redditum tempore statuto non persoluerunt.' Reg. Cellararii of Bury St. Edmund's, Cambridge Univ., Gg. iv. 4. 52, b; cf. Eynsham Inqu. ii. a: (Inquisitio de statu villani): 'Subtraxerunt sectam curie a longo tempore dicendo se esse liberos.'

78. Formulary of St. Alban's, Cambridge Univ., Ee. iv. 20, f 165, a: 'Servilia-videlicet secta curie de tribus septimanis in tres et secta molendini.' We find it denied in the king's court that a free man can be bound to do suit to the lord's mill; Bracton's Note-book, p. 161: 'Nota quod liber homo non tenetur sequi molendinum domini sui nisi gratis velit.'

79. Bury St. Edmund's, Registrum album, Cambridge Univ., Ee. iii. 60, f 155, b: 'Liberi excepti a falda domini.'

80. As to Scotale, See Stubbs, Const. Hist. 165.

81. Reg. Cellararii of Bury St. Edmund's, Cambridge Univ., Gg. iv. 4. 30, b: 'Per fidelitatem custumarii... et per alias consuetudines serviles.'

82. Y. B. 2O/21 Edward I, p. 41: 'Kar nent plus neit a dire, Jeo tenk les tenements en vileynage, ke neit a dire ke, Jeo tenk les tenements demendez ver moy a la volunte le Deen,' etc. See above, Chapter II.

83. Chron. Mon. de Abingdon, ii. 25 (Rolls Series).

84. Exch. Q. R., Misc. Books, No. 29, f 8, a: 'Habet 22 Servos tenentes 35 acras terre ad voluntatem domini ill servagio.' f 10, b: 'Habet ibidem 25 servos tenentes 12 virgatas terre et dimidiam in servagio... et possunt omnes removeri pro voluntate domini.'

85. Harl. MSS. 1885, f. 7: 'Volens autemn dominus de Wahell retinere ad opus suum totum parcum de Segheho... abegit omnes rusticos qui in predicto loco iuxta predictum boscum manebant.' Cf Cor. Rege, Pasch. a4 Edw. I, Oxon. 9.

86. Battle Abbey, Augment. Off. Misc. Books, 57, f 21, a: 'Etmemorandum quod omnes supradicti nativi non possunt... prostrare maremium crescens in tenementis que tenent sine licencia et visu ballivi vel servientis domini et hoc ad edificandum et non aliter.' Add. Charters, 5290, (transgressiones Stephani Chenore)... fecit vastum... in boscis quos idem Stephanus tenuit de domino in bondagio cum de quercis fraxinis pomariis et aliis arboribus vastos (ramos?) asportavit.'

87. Suffolk Court Rolls (Bodleian), 2, a: 'Rob. Gl. assertavit pomaria sua et fecit wastum super vilenagium Comitis.'

88. Suffolk Court Rolls (Bodleian): 'Quia Henricus bercarius plegios non potuit invenire ad heredificandum mesuagium quod fuit W. C. et ibi attractum suum facere.'

89. Duchy of Lancaster Court Rolls (Record Off., Bundle 32, No. 285: 'Emma... venit et sursum reddit I cotagium et 5 acras et dimidiam terre quas tenuit de domino in bondagio. Et venit Thomas filius ejus et capit dictam terram et dat ad ingressum 10 solidos.' B. 62, No. 750: 'Galfridus percarius venit et tradidit terram suam... domino comiti pro paupertate. Robertus filius eius postea venit et finem fecit pro habenda seisina dicte terre.'

90. Duchy of Lancaster Court Rolls, B. 43, No. 484: 'Dicit etiam quod dicta terra capta est in manu domini Edmundi pro redditibus et serviciis inde a retro existentibus.' Essex Court Rolls, 3 (Bodleian): 'Preceptum est capere in manu prioris totam residuam terram custumariam quam Matildis le Someters predicta tenet de feodo prioris quia vendidit de terra sua custumaria... libere per cartam contra consuetudinem manerii.'

91. Glastonbury Inqu. (Roxburghe Series), 65; Gloucester Cartulary (Rolls Series), iii. 196.

92. Capitula halimoti, Bodleian MSS., Wood, i. f III, b: 'Si nul soit en un graunt tenement e ne puisse les droitures de son tenement sustener e un aultre homme en un petit tenement que meutz tendroit le graunt tenement al prow le seigneur e le tenement.'

93. Rot. Hundred. ii. 321, a: In villenagio tres virgatae et dimidia.... Et sunt tenentes illarum servi de sanguine suo emendo.... In libere tenentibus pro certis serviciis per annum,' etc.

94. Glastonbury Inquis. (Roxburghe Series), 21: 'Quantum quisque teneat, omne ejus servitium; quis tenet libere et quantum et quo servitio et quo guaranto et quo tempore; si aliqua terra fuerit facta libera in tempore Henrici episcopi, vel postea, que debuit operari; quo guaranto hoc fuit, et in quantum sit libera; si dominicum sit occupatum vel foras positum in libertate vel vilenagio, et si ita fuerit domino utilius sicut est vel revocatum.'

95. Ibid. 130: 'J. clericus tenuit in tempore Henrici episcopi apud Domerham unam virgatam quam adhuc tenet et aliam virgatam apud Stapelham pro 10 solidis. Recepta villa de Domerham ad firmam, ipse propria auctoritate dimisit virgatam de Stapelham et dimidiam virgatam in Domerham in excambium cepit quia propinquior fuit. Hec dimidia virgata operari solet, nunc autem est libera. Virgata vero de Stapelham post illud excambium operari solet que ante hoc libera fuit.'

96. Ibid. 121: 'De dono xxix solidi et vi denarii. Et de Anderdo deficiunt vj den. quia tenet liberius quam predecessores sui solebant tenere.'

97. Ramsey Cartulary (Rolls Series), i. 364: 'De his septem hydis est una hyda libera. De sex hydis, quae restant, tenet Marsilia filia A. de R. duas virgatas ad censum. Quinque hydae et tres virgatae, quae restant, tenentur in puro villenagio.'

98. Galba, E. x. f 38.

99. Extensio de terris Roberti de Sto. Georgio (Lincoln) Inquis. p. mort. 30 Henry IlI, No. 36: 'Idem habuit in villenagio 13 bovatas terre et 3 partes unius bovate que 9 rustici tenent et quelibet bovata valet per annum 5 sol. pro omni servicio... habuit in liberis serviciis unam bovatam quam Radulfus filius G. de eo telluit per cartam pro 2 solidis per annum pro omni servicio.,

100. Bury St. Edmund's, Reg. Cellararii, Cambr. Univ., Gg. iv. 4, f 32, a: 'W. de Bruare tenet i rodam custumarie et per alias consuetudines serviles... alteram libere et per servicium 2 denariorum.' Cf Gloucester Cartulary (Rolls Series), iii. 65.

101. Battle Abbey, Reg. Augment. Off. Misc. Books, No. 57, f 72, b: 'Isti prenominati (liberi tenentes) sunt quieti per redditum suum de communibus servitiis, debent tamen. herietum et relevium.' Glastonbury Cart., Wood MSS., i. p. iii.: 'Si nul soit enfraunchi de ces ouveraignes dont la uile le est le plus charge.'

102. Ramsey Inqu., Galba, E. x. 39, d: 'Walterus abbas fecit R. francum de terra patris sui que fuerat ad furcam et flagellum.... Multos de servicio rusticorum francos fecit.' Ramsey Cartulary (Rolls Series), i. 487: '... quaelibet virgata de fleyland.' The same land appears as, quaelibet virgata operaria quae non fuerit posita ad censum.'

103. Spalding Priory, Reg., Cole MSS., vol. 43, f. 272: 'De tenentibus terram operariam de priore in Spalding.. W. de A. tenet 40 acras terre pro quibus debet operari qualibet die per annum ad voluntatem Domini ad quocumque opus Dominus voluerit, cum Carecta, Cortina, Vanga, Flagello, Tribulo, Furca, Falce.' Coram Rege, Mich., 51/52 Henry III, m. b: 'Et similiter predictus Petrus distringit eos pro consuetudinibus et servitiis que nec antecessores eorum nec ipsi facere consueverunt ut cum furcis et flagellis.'

104. Eynsham Cartulary, Christ Church MSS., No. 97, f 6, a: 'Willelmus F. tenet unum cotagium et quartam partem unius virgate terre qui facere con. suevit pro rata porcione sicut virgatarius. Modo ponitur ad firmam dum domina placet ad 6 solidos, 8 d.,' etc. Cf Domesday of St. Paul's (Camden Series), 81. This is in substance the difference between, bondagium et husbandland,' Inquis. p. mort. 46 Henry III, No. 25; Hexham Priory Cartulary (Surtees Series), p. xx.

105. Domesday of St. Paul's (Camden Series), 49.

106. St. Alban's Formulary, Cambridge Univ., Ee. iv. 20: 'Ne uno homini plures terre tradantur, et si modo UnuS plures tcnet, div.idantur, si commode et honeste fieri poterit.'

107. Domesday of St. Paul's (Camden Series), 52; Duchy of Lancaster Court Rolls, B. 62, No. 750: 'Et quia huiusmodi tenementum nullus potest vendicare hereditarie ut de aliis villenagiis successive.'

108. Hereford Rolls, 8 (Bodleian): 'Et concessum est ei tenere dictum mesuagium et unam acram terre sibi et heredibus suis secundum consuetudinem manerii per servicia inde debita et consueta.' Essex Rolls, 8 (Bodleian): 'Amicia de R. que tenet ex consuetudine manerii.'

109. Extractus Rotulorum de Halimotis, Cambridge Univ, Dd. vii. 22, f I, a.

110. Essex Rolls, 8 (Bodleian), m. 6: 'Johannes filius W.B. venit et clamavit unum mesuagium et quatuor acras terre cum pertinenciis ut jus et hereditatem suam post mortemn dicti W. patris sui faciendo inde dominis predictis servicia debita et consueta nomine villenagii et dat domino ad inquirendum de jure suo et si sit plene etatis et heres dicti W. nec ne,' etc.

111. Eynsham Cartulary, Christ Church MSS., No. 27, f II, b: 'Matildis B. tenet de domino unum cotagium cum curtilagio in voluntate domini., Cf Glastonbury Inqu. (Roxburghe Series), 66; Gloucester Cartulary (Rolls Series), iii. 134; Domesday of St. Paul's (Camden Series), 23.

112. Reg. Cellararii Mon. Bury St Edmund's, Cambridge Univ., Gg. iv. 4. f. 52, b: '(Curia 7 Edw. II)... dicunt quod quidam Robertus Heth pater dictorum R. W. et J. tenuit de conventu per virgam in villa de Berton magna... Et quia dedixerunt cepisse dictam terram per virgam ideo potest seisiri dicta terra in manum domini.' Registr. album vestiarii abbatiae S. Edmundi, Cambridge Univ., Ee. iii. 60, f 188, b: 'Tenentes de mollond... tenent per virgam in curia.' Eynsham Cartulary, Christ Church MSS., No. 97: 'Ricardus W. tenet unum cotagium et duas acras terrae campestres per rotulum curie pro 3 sol.' Cf 12, a.

113. Note-book of Bracton, pl. 1237.

114. Ely Register, Cotton, Claudius, C. xi. f iii. b: 'Habebit duas pugillatas avene ex gratia, ut juratores dicunt, per longum tempus usitata.'

115. Warwickshire Roll. Exch. Q.R. No. 29, f. 94, b: 'Servus.... cum fecerit exennium.... comedet cum domino.'

116. Christ Church, Canterbury, Cartulary, Add. MSS. 6159, f 22, b. Cf Gloucester Cartulary (Rolls Series), iii. 203.

117. Custumal of Battle Abbey (Camden Ser.), 30: 'Et debet herciare per duos dies.... pretium operis iiij. d. Et recipiet de domino utroque die repastus pretii iij d. Et sic erit dominus perdens j.d. Et sic nichil valet illa herciatio ad opus domini.'

118. Coram Rege, Pasch., 14 Edw. I, Lege, 18: 'Villani circulare (sic) non consueverunt nisi ex voluntate.'

119. Glastonbury Inqu. (Roxburghe Series), 82: 'Sed non debet carriare nisi dominus prestaverit suum plaustrum.'

120. Cotton MSS., Claudius, C. xi, f 30, b: 'Sed juratores dicunt quod nunquam hoc fecerunt nec de iure facere debent.'

121. Rot. Hundred. ii. 758, a: 'Servi... nec potest filiam maritare nec uxorem ducere sine licencia domini; debet et salvo contellemento suo talliari et ad omnia auxilia communia scottare et lottare secundum facultatem suam,' etc.

Chapter 6

Free Peasantry

I the heading of this chapter may not be misunderstood. It would be difficult to speak of free peasantry in the modern sense at the time with which we are now dealing. Some kind or form of dependence often clings even to those who occupy the best place among villagers as recognised free tenants, and in most cases we have a very strong infusion of subjection in the life of otherwise privileged peasants. But if we keep to the main distinctions, and to the contrast which the authorities themselves draw between the component elements of the peasant class, its great bulk will arrange itself into two groups: the larger one will consist of those ordinarily designated as villains; a smaller, but by no means an insignificant or scanty one, will present itself as free, more or less protected by law, and more or less independent of the bidding of the lord and his steward. There is no break between the two groups; one status runs continuously into the other, and it may be difficult to distinguish between the intermediate shades; but the fundamental difference of conception is clearly noticeable as soon as we come to look at the whole, and it is not only noticeable to us but was noticed by the contemporary documents.     In very many cases we are actually enabled to see how freedom and legal security gradually emerge from subjection. One of the great movements in the social life of the thirteenth and fourteenth centuries is the movement towards the commutation of services for money rents. In every survey we find a certain number of persons who now pay money, whereas they used to do work, and who have thus emancipated themselves from the most onerous form of subjection.(1*) In the older documents it is commonly specified that the lord may revert to the old system, give up the rents, and enforce the services.(2*) In later documents this provision disappears, having become obsolete, and there is only a mention of certain sums of money. The whole process, which has left such distinct traces in the authorities, is easily explained by England's economic condition at that time. Two important factors co-operated to give the country an exceptionally privileged position. England was the only country in Europe with a firmly constituted government. The Norman Conquest had powerfully worked in the sense of social feudalism, but it had arrested the disruptive tendencies of political feudalism. The opposition between the two races, the necessity for both to keep together, the complexity of political questions which arose from conquest and settlement on the one hand, from the intercourse with Normandy and France on the other, -- all these agencies working together account for a remarkable intensity of action on the part of the centripetal forces of society, if I may use the expression: there was in England a constant tendency towards the concentration and organisation of political power in sharp contrast with the rest of Europe where the state had fallen a prey to local and private interests. One of the external results of such a condition was the growth of a royal power supported by the sympathy of the lower English-born classes, but arranging society by the help of Norman principles of fiscal administration. Not less momentous was the formation of an aristocracy which was compelled to act as a class instead of acting as a mere collection of individuals each striving for his own particular advantage; as a class it had to reckon with, and sometimes represent, the interests and requirements of other classes. In all these respects England was much ahead of Germany, where tribal divisions were more powerful than national unity, and the state had to form itself on feudal foundations in opposition to a cosmopolitan Imperial power; it was not less in advance of France, where the work of unification, egotistically undertaken by the king, had hardly begun to get the upper hand in its conflict with local dynasties; not less in advance of Italy, so well situated for economic progress, but politically wrecked by its unhappy connexion with Germany, the anti-national influence of the Papacy, and the one-sided development of municipal institutions. By reason of its political advantages England had the start of other European countries by a whole century and even by two centuries. The 'silver streak' acted already as a protection against foreign inroads, the existence of a central power insured civil order, intercourse between the different parts of the island opened outlets to trade, and reacted favourably on the exchange of commodities and the circulation of money.     Another set of causes operated in close alliance with these political influences. The position of England in relation to the European market was from the first an advantageous one. besides the natural development of seafaring pursuits which lead to international trade, and always tend to quicken the economic progress, there were two special reasons to account for a speedy movement in the new direction: the woollen trade with Flanders begins to rise in the twelfth century, and this is the most important commercial feature in the life of North-Western Europe; then again, the possession of Normandy and the occupation of Aquitaine and other provinces of France by the English opened markets and roads for a very brisk commercial intercourse with the Continent. As an outcome of all these political and economical conditions we find the England of the thirteenth century undoubtedly moving from natural husbandry to the money-system.     The consequences are to be seen on every side in the arrangements of state and society. The means of government were modified by the economic change. Hired troops took the place of feudal levies; kings easily renounced the military service of their tenants and took scutages which give them the means of keeping submissive and well-drilled soldiers. The same process took place all through the country on the land of secular and ecclesiastical lords. They all preferred taking money which is so readily spent and so easy to keep, which may transform itself equally well into gorgeous pageants and into capital for carrying on work, instead of exacting old-fashioned unwieldly ploughings and reapings or equally clumsy rents in kind.     On the other hand, the peasants were equally anxious to get out of the customary system: through its organisation of labour it involved necessarily many annoyances, petty exactions and coercion; it involved a great waste of time and energy. The landlord gained by the change, because he received an economic instrument of greater efficiency; the peasant gained because he got rid of personal subjection to control; both gained; for a whole system of administration, a whole class of administrators, stewards, bailiffs, reeves, a whole mass of cumbrous accounts and archaic procedure became unnecessary.     In reality the peasantry gained much more than the lord. Just because money rents displaced the ploughings and reapings very gradually, they assumed the most important characteristic of these latter -- their customary uniformity; tradition kept them at a certain level which it was very difficult to disturb, even when the interests of the lord and the conditions of the time had altered a great deal. Prices fluctuate and rise gradually, the buying strength of money gets lowered little by little, but customary rents remain much the same as they were before. Thus in process of time the balance gets altered for the benefit of the rent payer. I do not mean to say that such views and such facts were in full operation from the very beginning: one of the chief reasons for holding the Glastonbury inquest of 1189 was the wish to ascertain whether the rents actually corresponded to the value of the plots, and to make the necessary modifications. But such fresh assessments were very rare, it was difficult to carry them into practice, and the general tendency was distinctly towards a stability of customary rents.     The whole process has a social and not merely an economical meaning. Commutation, even when it was restricted to agricultural services, certainly tended to weaken the hold of the lord on his men. Personal interference was excluded by it, the manorial relation resolved itself into a practice of paying certain dues once or several times a year; the peasant ceased to be a tool in the husbandry arrangements of his master. The change made itself especially felt when the commutation took place in regard to entire villages:(3*) the new arrangement developed into the custom of a locality, and gathered strength by the number of individuals concerned in it, and the cohesion of the group. In order not to lose all power in such a township, the lords usually reserved some cases for special interference and stipulated that some services should still be rendered in kind.(4*)     Again, the conversion of services into rents did not always present itself merely in the form just described: it was not always effected by the mere will of the lord, without any legally binding acts. Commutation gave rise to actual agreements which came more or less under the notice of the law. We constantly find in the Hundred Rolls and in the Cartularies that villains are holding land by written covenant. In this case they always pay rent. Sometimes a villain, or a whole township, gets emancipated from certain duties by charter,(5*) and the infringement of such an instrument would have given the villains a standing ground for pleading against the lord. it happened from time to time that bondmen took advantage of such deeds to claim their liberty, and to prove that the lord had entered into agreement with them as with free people.(6*) To prevent such misconstruction the lord very often guards expressly against it, and inserts a provision to say that the agreement is not to be construed against his rights and in favour of personal freedom.(7*)     The influence of commutation makes itself felt in the growth of a number of social groups which arrange themselves between the free and the servile tenantry without fitting exactly into either class. Our manorial authorities often mention mol-land and mol-men.(8*) The description of their obligations always points one way: they are rent-paying tenants who may be bound to some extra work, but who are very definitely distinguished from the 'custumarii,' the great mass of peasants who render labour services.(9*) Kentish documents use 'mala' or 'mal' for a particular species of rent, and explain the term as a payment in commutation of servile customs.(10*) In this sense it is sometimes opposed to gafol or gable -- the old Saxon rent in money or in kind, this last being considered as having been laid on the holding from all time, and not as the result of a commutation.(11*) Etymologically there is reason to believe that the term mal is of Danish origin,(12*) and the meaning has been kept in practice by the Scotch dialect.(13*) What immediately concerns our present purpose is, that the word mal-men or mol-men is commonly used in the feudal period for villains who have been released from most of their services by the lord on condition of paying certain rents. Legally they ought to remain in their former condition, because no formal emancipation has taken place; but the economical change reacts on their status, and the manorial documents show clearly how the whole class gradually gathers importance and obtains a firmer footing than was strictly consistent with its servile origin.(14*)     In the Bury St. Edmund's case just quoted in a footnote the fundamental principle of servility is stated emphatically, but the statement was occasioned by gradual encroachments on the part of the molmen, who were evidently becoming hardly distinguishable from freeholders.(15*) And in many Cartularies we find these molmen actually enumerated with the freeholders, a very striking fact, because the clear interest of the lord was to keep the two classes asunder, and the process of making a manorial 'extent' and classifying the tenants must have been under his control. As a matter of fact, the village juries were independent enough to make their presentments more in accordance with custom than in accordance with the lord's interests. In a transcript of a register of the priory of Eye in Suffolk, which seems to have been compiled at the time of Edward I, the molmen are distinguished from villains in a very remarkable manner as regards the rule of inheritance, Borough English being considered as the servile mode, while primogeniture is restricted to those holding mol-land.(16*) Borough English was very widely held in medieval England to imply servile occupation of land,(17*) and the privilege enjoyed by molmen in this case shows that they were actually rising above the general condition of villainage, the economical peculiarities of their position affording a stepping-stone, as it were, towards the improvement of their legal status. It is especially to be noticed, that in this instance we have to reckon with a material difference of custom, and not merely with a vacillating terminology or a general and indefinite improvement in position. An interesting attempt at an accurate classification of this and other kinds of tenantry is displayed by an inquisition of 19 Edward I preserved at the Record Office. The following subdivisions are enumerated therein: --   Liberi tenentes per cartam.   Liberi tenentes qui vocantur fresokemen.   Sokemanni qui vocantur molmen.   Custumarii qui vocantur werkmen.   Consuetudinarii tenentes 4 acras terre.   Consuetudinarii tenentes 2 acras terre.(18*)     The difference between molmen and workmen lies, of course, in the fact that the first pay rent and the second perform week-work. But what is more, the molmen are ranged among the sokemen, and this supposes a certainty of tenure and service not enjoyed by the villains. In this way the intermediate class, though of servile origin, connects itself with the free tenantry.     The same group appears in manorial documents under the name of censuarii.(19*) Both terms interchange, and we find the same fluctuation between free and servile condition in regard to the censuarii as in regard to molmen. The thirteenth-century extent of the manor of Broughton, belonging to the Abbey of Ramsey in Huntingdonshire, when compared with Domesday, shows clearly the origin of the group and the progress which the peasantry had made in two hundred years. The Domesday description mentions ten sokemen and twenty villains; the thirteenth-century Cartulary speaks in one place of liberi and villani, sets out the services due from the latter, but says that the Abbot can 'ponere omnia opera ad censum;' while in another place it speaks as though the whole were held by liberi et censuarii.(20*)     A similar condition is indicated by the term gavelmanni, which occurs sometimes, although not so often as either of the designations just mentioned.(21*) It comes evidently from gafol or gafel, and applies to rent-paying people. It ought to be noticed, however, that if we follow the distinction suggested by the Kentish documents, there would be an important difference in the meaning. Rent need not always appear as a result of commutation; it may be an original incident of the tenure, and there are facts enough to show that lands were held by rent in opposition to service even in early Saxon time. Should mal be taken as a commutation rent, and gafol strictly in the sense of original rent, the gavelmen would present an interesting variation of social grouping as the progeny of ancient rent-holding peasantry. I do not think, however, that we are entitled to press terminological distinctions so closely in the feudal period, and I should never enter a protest against the assumption that most gavelmen were distinguished from molmen only by name, and in fact originated in the same process of commutation. But, granting this, we have to grant something else. Vice versa, it is very probable indeed that the groups of censuarii and molmen are not to be taken exclusively as the outcome of commutation. If gafol gets to be rather indistinct in its meaning, so does mal, and as to census, there is nothing to show whether it arises in consequence of commutation or of original agreement. And so the Kentish distinction, even if not carried out systematically, opens a prospect which may modify considerably the characteristic of the status on which I have been insisting till now. Commutation was undoubtedly a most powerful agency in the process of emancipation; our authorities are very ready to supply us with material in regard to its working, and I do not think that anybody will dispute the intimate connexion between the social divisions under discussion and the transition from labour services to rent. Yet a money rent need not be in every case the result of a commutation of labour services, although such may be its origin in most cases. We have at least to admit the possibility and probability of another pedigree of rent-paying peasants. They may come from an old stock of people whose immemorial custom has been to pay rent in money or in kind, and who have always remained more or less free from base labour. This we should have to consider as at all events a theoretic possibility, even if we restricted our study to the terminology connected with rent; though it would hardly give sufficient footing for definite conclusions. But there are groups among the peasantry whose history is less doubtful.     There are at the British Museum two most curious Surveys of the possessions of Ely Minster, one drawn up in 1222 and the other in 1277,(22*) In some of the manors described we find tenants called 'hundredarii.' Their duties vary a good deal, but the peculiarity which groups them into a special division and gives them their name is the suit of court they owe to the hundred.(23*) And although the name does not occur often even in the Ely Surveys, and is very rare indeed elsewhere,(24*) the thing is quite common. The village has to be represented in the hundred court either by the lord of the manor, or by the steward, or by the reeve, the priest, and four men.(25*) The same people have to attend the County Court and to meet the King's justices when they are holding an eyre.(26*) It is not a necessary consequence, of course, that certain particular holdings should be burdened with the special duty of sending representatives to these meetings, but it is quite in keeping with the general tendency of the time that it should be so; and indeed one finds everywhere that some of the tenants, even if not called 'hundredarii,' are singled out from the rest to 'defend' the township at hundred and shire moots.(27*) They are exempted from other services in regard to this 'external,' this 'forinsec' duty, which was considered as by no means a light one.(28*)     And now as to their status. The obligation to send the reeve and four men is enforced all through England, and for this reason it is prima facie impossible that it should be performed everywhere by freeholders in the usual sense of the word. There can be no doubt that in many, if not in most, places the feudal organisation of society afforded little room for a considerable class of free-holding peasants or yeomen.(29*) If every township in the realm had to attend particular judicial meetings, to perform service for the king, by means of five representatives, these could not but be selected largely from among the villain class. The part played by these representatives in the Courts was entirely in keeping with their subordinate position. They were not reckoned among the 'free and lawful' men acting as judges or assessors and deciding the questions at issue. They had only to make presentments and to give testimony on oath when required to do so. The opposition is a very marked one, and speaks of itself against the assumption that the five men from the township were on an equal standing with the freeholders.(30*) Again, four of these five were in many cases especially bound by their tenure to attend the meetings, and the reeve came by virtue of his office, but he is named first, and it does not seem likely that the leader should be considered as of lower degree than the followers. Now the obligation to serve as reeve was taken as a mark of villainage. All these facts lead one forcibly to the conclusion that the hundredors of our documents represent the village people at large, and the villains first of all, because this class was most numerous in the village. This does not mean, of course, that they were all personally unfree: we know already, that the law of tenure was of more importance in such questions than personal status.(31*) It does not even mean that the hundredors were necessarily holding in villainage: small freeholders may have appeared among them. But the institution could not rest on the basis of legal freehold if it was to represent the great bulk of the peasantry in the townships.     This seems obvious and definite enough, but our inquiry would be incomplete and misleading if it were to stop here. We have in this instance one of those curious contradictions between two well-established sets of facts which are especially precious to the investigator because they lead him while seeking their solution to inferences far beyond the material under immediate examination. In one sense the reeve and the four men, the hundredors, seem villains and not freeholders. In another they seem freeholders and not villains. Their tenure by the 'sergeanty' of attending hundreds and shires ranks again and again with freehold and in opposition to base tenure.(32*) Originally the four men were made to go not only with the reeve but with the priest; and if the reeve was considered in feudal times as unfree, the priest, the 'mass-thane,' was always considered as free.(33*) It is to be noticed that the attendance of the priest fell into abeyance in process of time, but that it was not less necessary for the representation of the township according to the ancient constitution of the hundred than the attendance of the reeve. This last fact is of great importance because it excludes an explanation which would otherwise look plausible enough. Does it not seem at first sight that the case of the hundredors is simply a case of exemption and exactly on a parallel with the commutation of servile obligations for money? We have seen that villains discharged from the most onerous and opprobrious duties of their class rise at once in social standing, and mix up with the smaller freeholders. Hundredors are relieved from these same base services in order that they may perform their special work, and this may possibly be taken as the origin of their freedom. Should we look at the facts in this way, the classification of this class of tenants as free would proceed from a lax use of the term and their privileges would have to be regarded as an innovation. The presence of the priest warns us that we have to reckon in the case with a survival, with an element of tradition and not of mere innovation. And it is not only the presence of the priest that points this way.     At first sight the line seems drawn very sharply between the reeve and the four men on the one hand, and the freehold suitors of the hundred court on the other: while these last have to judge and to decide, the first only make presentments. But the distinction, though very clear in later times, is by no means to be relied upon even in the thirteenth century. In Britton's account of the sheriff's tourn the two bodies, though provided with different functions, are taken as constituted from the same class: 'the free landowners of the hundred are summoned and the first step is to cause twelve of them to swear that they will make presentment according to the articles. Afterwards the rest shall be sworn by dozens and by townships, that they will make lawful presentment to the first twelve jurors.'(34*) The wording of the passage certainly leads one to suppose that both sets of jurors are taken from the freeholder class, and the difference only lies in the fact that some are selected to act as individuals, and the rest to do so by representation. The Assize of Clarendon, which Mr Maitland has shown to be at the origin of the sheriff's tourn,(35*) will only strengthen the inference that the two bodies were intended to belong to the same free class: the inquiry, says the Assize, shall be made by twelve of the most lawful men of the county, and by four of the most lawful men of every township. What is there in these words to show that the two sets were to be taken from different classes? And does not the expression 'lawful,' extending to both sets, point to people who are 'worthy of their law' that is to free men? The Assize of Clarendon and the constitution of the tourn are especially interesting because they give a new bearing to an old institution: both divisions of the population which they have in view appear in the ordinary hundred and county court, and in the 'law day' of the 'great' hundred instituted for the view of frankpledge. In the ordinary court the lord, his steward, and the reeve, priest, and four men, interchange, according to the clear statement of Leg. Henrici I. c. 7, that is to say, the vill is to be represented either by the lord, or by his steward, or again by the six men just mentioned. They are not called out as representing different classes and interests, but as representing the same territorial unity. If the landlord does not attend personally or by his personal representative, the steward, then six men from the township attend in his place. The question arises naturally, where is one to look for the small freeholders in the enactment? However much we may restrict their probable number, their existence cannot be simply denied or disregarded. It does not seem likely that they were treated as landlords (terrarum domini), and one can hardly escape the inference that they are included in the population of the township, which appears through the medium of the six hundredors: another hint that the class division underlying the whole structure did not coincide with the feudal opposition between freeholder and villain. Again, in the great hundred for the view of frankpledge, which is distinguished from the ordinary hundred by fuller attendance, and not by any fundamental difference in constitution, all men are to appear who are 'free and worthy of their wer and their wite:'(36*) this expression seems an equivalent to the 'free and lawful' men of other cases, and at the same time it includes distinctly the great bulk of the villain population as personally free.     I have not been able, in the present instance, to keep clear of the evidence belonging to the intermediate period between the Saxon and the feudal arrangements of society; this deviation from the general rule, according to which such evidence is to be discussed separately and in connexion with the Conquest, was unavoidable in our case, because it is only in the light of the laws of Henry I that some important feudal facts can be understood. in a trial as to suit of court between the Abbot of Glastonbury and two lay lords, the defendants plead that they are bound to appear at the Abbot's hundred court personally or by attorney only on the two law-days, whereas for the judgment of thieves their freemen, their reeves and ministers have to attend in order to take part in the judgment.(37*) It is clearly a case of substitution, like the one mentioned in Leg. Henrici, c. 7, and the point is, that the representatives of the fee are designated as reeves and freemen. Altogether the two contradictory aspects in which the hundredors are made to appear can hardly be explained otherwise than on the assumption of a fluctuation between the conception of the hundred as of an assembly of freemen, and its treatment under the influence of feudal notions as to social divisions. In one sense the hundredors are villains: they come from the vill, represent the bulk of its population, which consists of villains, and are gradually put on a different footing from the greater people present. In another sense they are free men, and even treated as freeholders, because they form part of a communal institution intended to include the free class and to exclude the servile class.(38*) If society had been arranged consistently on the feudal basis, there would have been no room for the representation of the vill instead of the manor, for the representation of the vill now by the lord and now by a deputation of peasants, for a terminology which appears to confuse or else to neglect the distinction between free and servile holding. As it is, the intricate constitution of the hundred, although largely modified and differentiated by later law, although cut up as it were by the feudal principle of territorial service, looks still in the main as an organisation based on the freedom of the mass of the people.(39*) The free people had to attend virtually, if not actually, and a series of contradictions sprang up from the attempt to apply this principle to a legal state which had almost eliminated the notion of freedom in its treatment of peasantry on villain land. As in these feudal relations all stress lay on tenure and not on status, the manorial documents seem to raise the hundredors almost or quite to the rank of freeholders, although in strict law they may have been villains. The net results seem to be: (1) that the administrative constitution of hundred and county is derived from a social system which did not recognise the feudal opposition between freeholder and villain; (2) that we must look upon feudal villainage as representing to a large extent a population originally free; (3) that this original freedom was not simply one of personal status, but actually influenced the conception of tenure even in later days.(40*)     If in manorial documents these 'hundredors' occupy as it were an ambiguous position, the same may be said of another and a very important class -- the socmen. The socage tenure has had a very curious terminological history. Everybody knows that it appears in Domesday as a local peculiarity of Danish districts; in modern law it came to be a general name for any freehold that was neither knight service, frankalmoign, nor grand sergeanty. It became in fact the normal and typical free tenure, and as such it was treated by the Act of Charles II abolishing military tenure. Long before this -- even in the thirteenth century -- 'free socage' was the name of a freehold tenure fully protected by the King's Courts. Very great men occasionally held land in free socage (per liberum socagium); they even held of the King in chief by free socage, and the tenure had many advantages, since it was free from the burdensome incidents of wardship and marriage. But no one would have called these men socmen (sokemanni, socomanni). On the other hand, the socmen, free socmen, were to he found all over England and not in the Danish country only. It is of the tenure of these socmen that we have to speak now. In a trial of Edward the First's time the counsel distinguish three manners of persons -- free men, villains, and socmen. These last are said to occupy an intermediate position, because they are as statu liberi in regard to their lords.(41*) The passage occurs in a case relating to ancient demesne, but the statement is made quite broadly, and the term 'socmen' is used without any qualification. As there were many socmen outside the King's possessions on the land of lay and spiritual lords, such usage may be taken as proof that the position of all these people was more or less identical. And so in our inquiry as to the characteristic traits of socage generally we may start from the ancient demesne. Further, we see that the socman's tenure is distinguished from free tenure, socmen from freeholders. In the law books of the time the free but non-military tenure has to be characterised not merely as socage, but as free socage: this fact will give us a second clue in analysing the condition.     There are two leading features in ancient demesne socage: it is certain in tenure and service, and it is held by the custom of the manor and not by feoffment. The certainty of the tenure severs the class of socmen from the villains, and is to be found as well in the case of socmen outside the crown demesne as in the case of socmen on the crown demesne. What is to be said of the second. trait? It seems especially worthy of notice, because it cannot be said to belong to freehold generally. As to its existence on ancient demesne land I have already had occasion to speak, and it can hardly be doubted. I will just recall to the reader's mind the fundamental facts: that the 'little writ of right' was to insure justice according to the custom of the manor, and that our documents distinguish in as many words between the customary admittance of the socman and the feoffment of the freeholder. This means, that in case of litigation the one had warranty and charter to lean upon, while the other had to appeal to the communal testimony of his fellow-suitors in the court of the manor, and in later days to an entry on the court-roll. Freehold appeared as chartered land (book-land), while socage was in truth copyhold secured by communal custom.(42*) The necessary surrender and admittance was performed in open court, and the presence of fellow-tenants was as much a requisite of it as the action of the lord or his steward.     If we look now to the socmen outside the ancient demesne, we shall find their condition so closely similar, that the documents constantly confuse them with the tenants of the ancient demesne. The free men under soke in the east of England have best kept the tradition, but even their right is often treated as a mere variation of ancient demesne.(43*) For this reason we should be fairly entitled, I think, to extend to them the notion of customary freehold. There is direct evidence in this respect. In extents of manors socmen are often distinguished from freeholders.(44*) True, as already said, that in the king's courts 'free socage' came to be regarded as one of the freehold tenures, and as such (when not on the ancient demesne) was protected by the same actions which protected knight-service and frankalmoign; but we have only here another proof of the imperfect harmony between legal theory and manorial administration. What serves in the manorial documents to distinguish the 'socman' from the 'freeholder' is the fact that the former holds without charter.(45*) We are naturally led to consider him as holding, at least originally, by ancient custom and communal testimony in the same sense as the socmen of ancient demesne. In most cases only the negative side, namely the absence of a charter, is mentioned, but there are entries which disclose the positive side, and speak of tenants or even free tenants holding without charter by ancient tenure.(46*) It is to be added, that we find such people in central and western counties, that is outside of the Danelagh. In Domesday their predecessors were entered as villains, but their tenure is nevertheless not only a free but an ancient one.     It must also be added that it is not only free socmen that one finds outside the ancient demesne; bond socmen are mentioned as well. Now this seems strange at first sight, because the usual and settled terminology treats villain socage as a peculiarity of ancient demesne, My notion is that it is not 'bond' that qualities the 'socmen,' but vice versa. To put it in a different way, the documents had to name a class which held by certain custom, although by base service, and they added the 'socman' to qualify the 'bond' or the 'villain.'     Two cases from the Hundred Rolls may serve as an illustration of this not unimportant point. The vill of Soham in Cambridgeshire (47*) was owned in 1279 partly by the King, partly by the Earl Marshall, and partly by the Bishop of Ely. There are two socmen holding from the King thirty acres each, fourteen socmen holding fifteen acres each, and twenty-six 'toftarii' possessed of small plots. No villains are mentioned, but the socmen are designated on the margin in a more definite way as bond socmen. The manor had been in the possession of the Crown at the time of the Conquest, and it is to be noticed, to begin with, that the chief population of the part which remained with the King appears as socmen -- a good illustration of the principle that the special status did not originate when the manor was granted out by the Crown. The sixteen peasants first mentioned are holders of virgates and half-virgates, and form as it were the original stock of the tenantry -- it would be impossible to regard them as a later adjunct to the village. Their status is not a result of commutation -- they are still performing agricultural work, and therefore bond socmen. The Domesday Survey speaks only of villains and 'bordarii,' and it is quite clear that it calls villains the predecessors of the 'bond socmen' of the Hundred Rolls. And now let us examine the portion of the manor which had got into the hands of the Earl Marshall. We find there several free socmen whose holdings are quite irregular in size: they pay rent, and are exempted from agricultural work. Then come five bond socmen, holding thirty acres each, and nine bonds holding fifteen acres each: all these perform the same services as the corresponding people of the King's portion. And lastly come twenty-two tofters. Two facts are especially worth notice: the free socman appears by the side of the bond socman, and the opposition between them reduces itself to a difference between rent-paying people and labourers; the holdings of the rent-payers are broken up into irregular plots, while the labourers still remain bound up by the system of equalised portions. The second significant fact is, that the term 'socman,' which has evidently to be applied to the whole population except the tofters, has dropped out in regard to the half-virgate tenants of the Earl Marshall. If we had only the fragment relating to his nine bondmen, we might conclude perhaps that there was no certain tenure in the manor. The inference would have been false, but a good many inferences as to the social standing of the peasantry are based on no better foundation. In any case the most important part of the population of Soham, as far as it belonged to the king and to the earl, consisted of socmen who at the same time are called bondmen, and were called villains in Domesday.     Soham is ancient demesne. Let us now take Crowmarsh in Oxfordshire.(48*) Two-thirds of it belonged to the Earl of Oxford in 1279, and one-third to the Lord de Valence. At the time of the Domesday Survey it was in the hands of Walter Giffard, and therefore not ancient demesne. On the land of the Earl of Oxford we find in 1279 nine servi socomanni holding six virgates, there are a few cotters and a few free tenants besides; the remaining third is occupied by two 'tenentes per servicium socomannorum,' and by a certain number of cotters and free tenants. It can hardly be doubted that the opposition between servi and liberi is not based on the certainty of the tenure; the socmen hold as securely as the free tenants, but they are labourers, while these latter are exempted from the agricultural work of the village. The terms are used in the same way as the 'terra libera' and the 'terra operabilis' of the Glastonbury inquest.     I need not say that the socmen of ancient demesne, privileged villains as Bracton calls them, are sometimes subjected to very burdensome services and duties. Merchet is very common among them; it even happens that they have to fine for it at the will of the lord.(49*) But all the incidents of base tenure are to be found also outside the ancient demesne in connexion with the class under discussion. If we take the merchet we shall find that at Magna Tywa, Oxon,(50*) it is customary to give the steward a sword and four pence for licence to give away one's daughter within twenty miles in the neighbourhood; in Haneberg, Oxon,(51*) a spear and four pence are given in payment. The socmen of Peterborough Abbey (52*) have to pay five shillings and four pence under the name of merchet as a fine for incontinence (the legerwite properly so-called), and there is besides a marriage payment (redempcio sanguinis) equal for socmen and villains. The same payment occurs in the land of Spalding Priory, Lincoln.(53*) The same fact strikes us in regard to tallage and aids, i.e. the taxes which the lord had a right to raise from his subjects. In Stoke Basset, Oxon,(54*) the socmen are placed in this respect on the same footing with the villains. The Spalding Cartulary adds that their wainage is safe in any case.(55*) On the lands of this priory the classes of the peasantry are generally very near to each other, so that incidents and terms often get confused.(56*)     And not only socmen have to bear such impositions: we find them constantly in all shapes and gradations in connection with free tenantry. The small freeholder often takes part in rural work,(57*) sometimes he has to act as a kind of overseer,(58*) and in any case this base labour would not degrade him from his position.(59*) Already in Bracton's day the learned thought that the term 'socage' was etymologically connected with the duty of ploughing: -- a curious proof both of the rapidity with which past history had become unintelligible, and of the perfect compatibility of socage with labour services. Merchet, heriot, and tallage occur even more often.(60*) All such exactions testify to the fact that the conceptions of feudal law as to the servile character of particular services and payments were in a great measure artificial. Tallage, even arbitrary tallage, was but a tax after all, and did not detract from personal freedom or free tenure in this sense. Then heriot often occurs among free people in the old Saxon form of a surrender of horse and arms as well as in that of the best ox.(61*) Merchet is especially interesting as illustrating the fusion of different duties into one. It is the base payment par excellence, and often used in manorial documents as a means to draw the line between free and unfree men.(62*) Nevertheless free tenants are very often found to pay it.(63*) In most cases they have only to fine in the case when their daughters leave the manor, and this, of course, has nothing degrading in it: the payment is made because the lord loses all claim as to the progeny of the woman who has left his dominion. But there is evidence besides to show that free tenants had often to pay in such a case to the hundred, and the lords had not always succeeded in dispossessing the hundred.(64*) Such a fine probably developed out of a payment to the tribe or to a territorial community in the case when a woman severed herself from it. It had nothing servile in its origin. And still, if the documents had not casually mentioned these instances, we should have been left without direct evidence as to a difference of origin in regard to merchet or gersum. Is it not fair to ask, whether the merchet of the villains themselves may not in some instances have come from a customary recompense paid originally to the community of the township into the rights of which the lord has entered? However this may be, one fact can certainly not be disputed: men entirely free in status and tenure were sometimes subjected to an exaction which both public opinion and legal theory considered as a badge of servitude.     The passage from one great class of society to the other was rendered easy in this way by the variety of combinations in which the distinguishing features of both classes appear. No wonder that we hear constantly of oppression which tended to substitute one form of subjection for another, and thus to lower the social standing of intermediate groups. The free socmen of Swaffham Prior, in Cambridgeshire,(65*) complain that they are made to bind sheaves while they did not do it before; they used to pay thirty-two pence for licence to marry a daughter, and to give a twofold rent on entering an inheritance, and now the lord fines them at will. One of the tenants of the Bishop of Lincoln (66*) declares to the Hundred Roll Commissioners that his ancestors were free socmen and did service to the king for forty days at their own cost, whereas now the Bishop has appropriated the royal rights. The same grievances come from ancient demesne people. In Weston, Bedfordshire,(67*) the tenantry complain of new exactions on the part of the lord; in King's Ripton,(68*) Hunts, merchet is introduced which was never paid before; in Collecot, Berks,(69*) the lord has simply dispossessed the socmen. In some instances the claims of the peasantry may have been exaggerated, but I think that in all probability the chances were rather against the subjected people than for them, and their grievances are represented in our documents rather less than fairly.(70*)     In speaking of those classes of peasants who were by no means treated as serfs to be exploited at will, I must not omit to mention one group which appears, not as a horizontal layer spread over England, but in the vertical cut, as it were. I mean the Kentish gavelkind tenantry. The Domesday Survey speaks of the population of this county quite in the same way as of the people of neighbouring shires; villains form the great bulk of it, socmen are not even mentioned, and to judge by such indications, we have here plain serfdom occupying the whole territory of the county. On the other hand the law of the thirteenth century puts the social standing of Kentish men in the most decided opposition to that of the surrounding people. The 'Consuetudines Kanciae,' the well-known list of special Kentish customs,(71*) is reported to have been drawn up during an eyre of John of Berwick in the twenty-first year of Edward I. Be its origin what it may, we come across several of its rules at much earlier times,(72*) and they are always considered of immemorial custom. The basis of Kentish social law is the assumption that every man born in the county is entitled to be considered as personally free, and the Common Law Courts recognised the notion to the extent of admitting the assertion that a person was born in Kent as a reply against the 'exceptio villenagii.' The contrast with other counties did not stop there. The law of tenure was as different as the law of status. It would be needless to enumerate all the points set forth as Kentish custom. They show conclusively that the lord was anything but omnipotent in this county. Interference with the proprietary right of the peasantry is not even thought of the tenants may even alienate their plots freely; the lord can only claim the accustomed rents and services; if the tenants are negligent in performing work or making payments, distress and forfeiture are awarded by the manorial court according to carefully graduated forms; wardship in case of minority goes to the kin and not to the lord, and heiresses cannot be forced to marry against their wish. As a case of independence the Kentish custom is quite complete, and manorial documents show on every page that it was anything but a dead letter. The Rochester Custumal, the Black Book of St. Augustine, the customs of the Kentish possessions of Battle Abbey, the registers of Christ Church, Canterbury, all agree in showing the Kentish tenantry as a privileged one, both as to the quantity and as to the quality of their services.(73*) And so the great bulk of the Kentish peasantry actually appears in the same general position as the free socmen of other counties, and sometimes they are even called by this name.(74*)     What is more, the law of Kent thus favourable to the peasantry connects itself distinctly with the ancient customs of Saxon ceorls: the quaint old English proverbs enrolled in it look like sayings which have kept it in the memory of generations before it was transmitted to writing. The peculiarities in the treatment of wardship, of dower, of inheritance, appear not only in opposition to the feudal treatment of all these subjects, but in close connexion with old Saxon usage. It would be very wrong, however, to consider the whole population of Kent as living under one law. As in the case of ancient demesne, there were different classes on Kentish soil: tenants by knight-service and sergeanty on one side, villains on the other.(75*) The custom of Kent holds good only for the tenantry which would have been called gavelmen in other places. It is a custom of gavelkind, of the rent-paying peasantry, the peasantry which pays gafol, and as such stands in opposition to the usages of those who hold their land by fork and flail.(76*) The important point is that we may lay down as certain in this case what was only put forward hypothetically in the case of molmen and gavelmen in the rest of England: the freehold quality of rent-paying land is not due to commutation and innovation alone -- it proceeds from a pre-feudal classification of holdings which started from the contrast between rent and labour, and not from that between certain and uncertain tenure. Again, the law of gavelkind, although not extending over the whole of Kent, belongs to so important and numerous a portion of the population, that, as in the case of ancient demesne, it comes to be considered as the typical custom of the county, and attracts all other variations of local usage into its sphere of influence. The Custumal published among the Statutes speaks of the personal freedom of all Kentish-men, although it has to concern itself specially with the gavelkind tenantry. The notion of villainage gets gradually eliminated from the soil of the province, although it was by no means absent from it in the beginning.     Thirteenth-century law evidently makes the contrast between Kent and adjoining shires more sharp than it ought to have been, if all the varieties within the county were taken into account. But, if it was possible from the legal standpoint to draw a hard and fast line between Kent on one side, Sussex or Essex on the other, it is quite impossible, from the historian's point of view, to grant that social condition has developed in adjoining places out of entirely different elements, without gradations and intermediate shades. Is there the slightest doubt that the generalising jurisprudence of the thirteenth century went much too far in one direction, the generalising scribes of the eleventh century having gone too far in the other? Domesday does not recognise any substantial difference between the state of Kent and that of Sussex; the courts of the thirteenth century admitted a complete diversity of custom, and neither one nor the other extreme can be taken as a true description of reality. The importance of the custom of Kent can hardly be overrated: it shows conclusively what a mistake it would be to accept without criticism the usual generalising statement as to the different currents of social life in mediaeval England. It will hardly be doubted moreover, that the Kentish case proves that elements of freedom bequeathed by history but ignored by the Domesday Survey come to the fore in consequence of certain facts which remain more or less hidden from view and get recognised and protected in spite of feudalism. If so, can the silence of Domesday or the absence of legal protection in the thirteenth century stand as sufficient proof against the admission of freedom as an important constitutive element in the historical process leading to feudalism? Is it not more natural to infer that outside Kent there were kindred elements of freedom, kindred remnants of a free social order which never got adequate recognition in the Domesday terminology or left definite traces in the practice of the Royal courts?     One more subject remains to be touched upon, and it may be approached safely now that we have reviewed the several social groups on the border between freeholders and villains. It is this -- to what extent can the existence of a class of freeholders among the peasantry of feudal England be maintained? It has been made a test question in the controversy between the supporters of the free and those of the servile community, and it would seem, at first sight, on good ground. Stress has been laid on the fact, that such communities as are mentioned in Domesday and described in later documents are (if we set aside the Danish counties) almost entirely peopled by villains, that free tenants increase in number through the agency of commutation and grants of demesne land, whereas they are extremely few immediately after Domesday, and that in this way there can be no talk of free village communities this side of the Conquest.(77*) This view of the case may be considered as holding the field at the present moment: its chief argument has been briefly summarised by the sentence-the villains of Domesday are not the predecessors in title of later freeholders.(78*) I cannot help thinking that a good deal has to be modified in this estimate of the evidence. Without touching the subject in all its bearings, I may say at once that I do not see sufficient reason to follow the testimony of Domesday very closely as to names of classes. If we find in a place many free tenants mentioned in the Hundred Roll, and none but villains in Domesday, it would be wrong to infer that there were none but villains in the later sense at the time of the Survey, or that all the free tenements of the Hundred Rolls were of later creation than the Conquest. It would be especially dangerous to draw such an inference in a case where the freeholders of the thirteenth century are possessed of virgates, half-virgates, etc., and not of irregular plots of land. Such cases may possibly be explained by sweeping commutation, which emancipated the entire village at one stroke, instead of making way for the freehold by the gradual enfranchisement of plot after plot. But it is not likely that all the many instances can be referred to such sweeping emancipation. In the light of Kentish evidence, of free and villain socage, it is at least probable that the thirteenth-century freeholders were originally customary freeholders entered as villains in Domesday, and rising to freedom again in spite of the influence of feudalism. Such an assumption, even if only possible and hypothetical, would open the way for further proof and investigation on the lines of a decline of free village communities, instead of imposing a peremptory termination of the whole inquiry for the period after the Conquest. If the Domesday villains are in no case predecessors in title of freeholders, this fact would go a long way to establish the serfdom of the village community for all the period after the Conquest, and we should have to rely only on earlier evidence to show anything else. Our case would be a hard one, because the earlier evidence is scanty, scattered, obscure, and one-sided, But if the villains of Domesday may be taken to include customary freeholders, then we may try to illustrate our conceptions of the early free village by traits drawn from the life of the later period,

NOTES:

1. Rot. Hundred. ii. 528, b: 'Et modo omnia illa arrentata sunt et dant per annum 14 sol. 8 d.'

2. Exch. Q. R. Min. Acc., Bundle 510, No. 13: 'Et solebant facere servicia consueta, sed per voluntatem et ad placitum domini extenta sunt in denariis., Cf Abingdon Cartulary, ii. 303. Rot. Hundred. ii. 453, a: 'Omnes isti prenominati nomine villenagii sunt ad voluntatem domini de operibus eorundem.' Cf Ibid. 407, b.

3. Worcester Cartulary (Camden Series), 54, b: 'Haec villa tradita est ab antiquo villanis ad firmam, ad placitum cum omnibus ad nos pertinentibus.' Cf Gloucester Cartulary, iii. 37.

4. Worcester Cartulary (Camden Series), l.c.: 'Praeterea percipimus medietatem proventuum et herietum, praeterea debent metere, ligare et compostare bladum de antiquo dominico de Hordewell.... et gersummabunt filias.'

5. Glastonbury Cartulary, Bodleian MSS., Wood, i., f 241, a: 'Jocelynus dei gratia Bathoniensis episcopus..... Noveritis nos quietos clamasse omnes homines abbatie Glastonie de Winterburne in perpetuam de arruris et aliis operacionibus quas facere debebant castro Marleberghe de terra de Winterburne, quos homines nostros Henricus illustris rex Anglie nobis concessit.'

6. Wartrey Priory Cartulary, Fairfax MSS. f 19, a: 'Et Adam dicit quod predictus Prior villenagium in persona ipsius Ade allegare non potest quia dicit quod dudum convenit inter quemdam Johannem dudum priorem de Wartre.... et quendam Henricum de W... patrem ipsius Ade videlicet quod isdem Prior.... per quoddam scriptum indenturam concesserunt Henrico.... quoddam toftum simul cum duabus bovatis terre.'

7. Malmesbury Cartulary (Rolls Series), ii. I99: 'Nos tradidisse... Roberto le H. de K. et Helenae uxori suae, et Agneti filiae eorum primogenitae nativis nostris, omnibus diebus vitae eorum, unam domum. Ita quod non licet praedicto Roberto alicui vendere nec occasione istius traditionis aliquam libertatem ipsis vendicare.'

8. As to molmen, I shall follow in substance my article in the English Historical Review, 1886, IV. p. 734. We already find the class in Cartularies of the twelfth century, in the Burton Cartulary, and in the Boldon Book. See Round in the English Historical Review, 1886, V. 103, and Stevenson, ibidem, VI. 332.

9. Any number of examples might be given. I referred in my article to a Record Office document, Exch. Treas. of Rec. Min. Acc. 32/8: 'Rogerus prepositus tenet 28 acras pro 13 solidis solvendis ad 4 terminos principales. Et dat 2 gallinas at Natale domini de precio 3 den., et 18 ova ad Pascham, et debet 2 homines ad 2 precarias ad cibum domini et non extenduntur eo quod nihil dabunt in argento si servicium illud dominus habere noluerit. Item idem adiuvabit leuare fenum ad precariam domini quod nihil valet ut supra. Item idem faeiet 2 averagia Londinium que valent 2d... Custumarii. Johannes Cowe tenet 13 acras et dimidiam pro 27 d... Et debet 3 opera qualibet septimana, scilicet per 44 septimanas videlicet a festo Natali beate Marie usque ad gulam Augusti que continet in operibus per predictum tempus vi xii (i. e. 132) et valet in denariis 5 sol.' etc.

10. Black Book of St. Augustine, Canterbury, Cotton MSS. Faustina, A. i. 31: 'De quolibet sullung (ploughland) 20 solidos de mala ad quatuor terminos quos antecessores nostri dederunt pro omnibus iniustis et incausacionibus (sic) quas uobis ore plenius exponemus.'

11. Rochester Costumal (ed. Thorpe), 2, b: 'F. habet 21 jugum terre te Gavelland unius servicii et unius redditus. Unumquodque jugum reddit 10 solidos ad 4 terminos-hoc est Mal. In media quadragesima 40d. Hoc est Gable.' The Cartulary of Christ Church, Canterbury, in the British Museum (Add. MSS. 6159) always gives the rents under the two different headings of Gafol and Mal.

12. The etymology of the word is traced by Stevenson, l.c.

13. Ashley, Economic History, i. pp. 56, 57.

14. Registrum Album Abbatiae Sancti Edmundi de Burgo, Cambridge University, Ee. iii. 60 f; 188, b: 'Memorandum quod anno regni Regis Edwardi filii Regis Henrici 18-dominus Johannes de Norwold abbas Sti. Edmundi ad ulteriores portas manerii sui de Herlawe, ad instanciam Cecilie le Grete de Herlawe hereditatem suam de mollond infra campum dicte ville jacentem post mortem viri sui a pluribus tenentibus Abbatis petentis coram eodem Abbate, eo pretextu quod vir suus adventicius dictam hereditatem suam ipsa invita vendidit et alienauit, per subscriptos inquisivit, utrum ipse seu alii quicumque infra villam predictam mollond tenentes libere tenuerunt seu tenent, et per cartas aut alio modo... Qui omnes et singuli jurati dixerunt per sacramentum suum quod omnes tenentes de molland solebant esse custumarii et fuerunt, sed Abbas Hugo primus et Abbas Sampson posterum et alii Abbates relaxarunt eis seru,cia maiora et consuetudines pro certa pecunia; modo arentati in aliquibus operibus ceteris, sed nihil habent inde nec tenent per cartas, sed per virgam in curia. Et sunt geldabiles in omnibus inter custumarios et quod omnes sunt custumarie et servilis condicionis sicut et alii.'

15. Exch. Treas. of Rec. 59/66. The classes follow each other in this way: 'Liberi tenentes, Molmen, Custumarii.' Cf Rot. Hundred. ii. 425, a.

16. Harl. MSS. 639, f 69, b: 'Inquisicio facta per totam socam de Badefeud dicit quod si aliquis servus domini moritur et plures habuerit filios, si tota terra fuerit mollond primogenitus de iure et consuetudine debet eam retinere; si tota fuerit villana iunior; si maior pars fuerit mollond primogenitus, is maior pars fuerit villana iunior eam optinebit.'

17. I cannot surrender this point (cf Stevenson, l.c.). That Borough English existed in many free boroughs and among free sokemen is true, of course, and there it had nothing to do with servile status. It would have been wrong to treat the custom of inheritance as a sure test from a general point of view. But as a matter of fact it was treated as such a test from a local point of view by many, if not most, manorial arrangements. I refer again to the Case from the Note-book of Bracton, pl. 1062. The lord is adducing as proof of a plea of villainage: 'Hoc bene patet, quia postnatus filius semper habuit terram patris sui sicut alii villani de patria.' I have said already that the succession of the youngest son appears with merchet, reeveship, etc., as a servile custom.

18. Q. R. Min. Acc. Box 587.

19. Ramsey Cartulary (Rolls Series), i.267: 'Decem hidae, ex quibus persona, liberi et censuarii tenent tres hidas et dimidiam, et villani tenent sex hidas.'

20. Domesday Book, i. 204; Ramsey Cartulary, i. 270, 330-40.

21. Rochester Cartulary (Thorpe), 2, a: 'Gavelmanni de Suthflete.'

22. Cotton MSS. Tiberius B. ii, and Claudius C. xi.

23. Cotton MSS. Claudius C. xi, f 49, a: 'De hundredariis et libere tenentibus. Philippus de insula tenet 16 acras de wara et debet sectas ad curiam Elyensem et ad curiam de Wilburtone et in quolibet hundredo per totum annum,' etc. For a more detailed discussion of the position of hundredors, see Appendix.

24. In the description of Aston and Cote, a submanor of Bampton, Oxfordshire, hundredarii are mentioned in Rot. Hundr. ii. 689.

25. Leg. Henrici I, c. 7. The point has been lately elucidated by Maitland, Suitols of the County Court, Eng. Hist. Rev., July 1888, and Round, Archaeological Review, iv.

26. Gloucester Cart. iii. 193: 'Et dicunt quod predictus Thomas et socii sui subscripti debent aquietare villam de quolibet hundredo Cyrencestriae et de Respethate praeterquam ad visum franciplegii bis in anno.' Ramsey Inqu., Cotton MSS. Galba E. x, 35: 'Sequebatur comitatum et hundredum pro dominico abbatis.' Madox, Hist. of the Exchequer, i. 74: 'Serviet eis nominatim in omnibus placitis ad quae convenienter summonitus erit et ad defensionem totius villae Estone aderit in hundredis et scyris in quibus erit quantum poterit.' Warwickshire Hundr. Roll, Q. R. Misc. Books, No. 29, f. 73, a: 'Seriancia ad comitatum et hundredum.'

27. Ramsey Cart. i. 438: 'J. R. tenet dimidiam hydam de veteri feoffamento et non reddit per annum aliquem censum abbati, quia est una de quattuor virgatis quae defendunt totam villatam de secta comitatus et hundredi per annum.'

28. Gloucester Cart. iii. 77: 'Henricus de Marwent te.net unam virgataet continentem 48 acras... et facit forinseca [scrvitia], scil. sectas comitatus (hundredi, et alia forinseca.' Cf Cart. of Shaftesbury, 65: '.... defendebat terram suam de omnibus forinsecis avcncionibus.'

29. Seebohm, Village Community, 37, 38,. Scrutton, Common Fields, 39.

30. See the instances collected by Maitland, Introduction to Rolls of Manorial Courts, Selden Soc., Ser. II, p. xxix, note 2.

31. Maitland, op. c.

32. A few instances among many: Gloucester Cart. iii 49: 'Radulfus de E. tenet unam virgatam terrae continentem 48 acras et reddit inde per annum non reditum aliquem, sed sequetur comitatum Warwici et hundredum de Kingtone pro domino, et curiam de Clifforde pro omni servitio.' There are four other, virgatarii liberi, besides this one. Domesday of St. Paul's (Camden Soc.), 30: 'Thomas arkarius (tenet) iv virgatas pro 28 solidis et debet facere sectam sire et hundredi.' He is a freeholder. Worcester Cart. (Camden Soc.), 64, C: 'De liberis Ricardus de Salford tenet dimidiam hidam de priore, quam Thomas de Ruppe tenuit de eo, et facit regale servitium tantum, et debet esse coram justiciariis itinerantibus pro defensione villae ad custum suum.' The Ely, hundredarii, are distinguished from the villains, and form by themselves a group which ranks next to the 'libere tenentes' or with them.

33. Ramsey, Inqu. Cotton MSS. Galba, E. x, f 52: 'Ecclesia ipsius ville possidet dimidiam hidam liberam et presbiter debet esse quartus eorum qui sequuntur comitatum et hundredum cum custamento suo.' Cf 40, 54. instead of attending separately the priest comes to be included among the four hundredors.

34. Britton, i. 177 sqq. See Maitland's Introd. to Manorial Rolls, p. xxvii.

35. Maitland, op. c. pp. xxix, xxx.

36. Leg. Henrici I. c. 8. Cf. Ely Register, Cotton MSS., Claudius, C. xi, 52, a: 'et libere tenentes sui qui tenent per socagium debent unam sectam ad frendlese hundred, scil. ad diem Sabbati proximum post festum St. Michaelis. The expression, friendless, is peculiar. It appears in other instances in the Ely Surveys. May it not mean, that all the free tenants, even the small ones, had to attend and could not be represented by their fellows or 'friends'?

37. Glastonbury Cart., Wood MSS., i. f 233, a: 'et N. et G. veniunt et defendunt vim et iniuriam et talem sectam qualem ab eis exigit et bene cognoscunt quod per attornatos suos debent ipsi facere duas sectas per annum ad duos lagedaios... sed si aliquis latro fuerit ibi iudicandus tunc debent liberi homines sui et prepositi uel seruientes sui debent interesse ad predictum hundredum ad faciendum iudicium et non ipsi in propria persona sua.' Cf Malmesbury Cart. (Rolls Ser.), ii.. 178; 'Item recognouit sectam ad hundredum de Malmesburia per se vel per sufficientem attornatum suum. Item recognouit et concessit quod omnes liberi homines sui de Estleye sequantur de hundredo in hundredum apud Malmesburiam sicut aliquo tempore predecessorum suorum facere consueverunt.'

38. This may possibly account for the curious fact, that in every manor there are some tenants called, Freeman,', Frankleyn,' and the like. They seem to be there to keep up the necessary tradition of the free element. For instance: Eynsham Cart. MSS. of the Chapter of Christ Church, Oxford, xxix. f 4, a: 'Iohannes Freman de Shyfford tenet unam virgatam per cartam... facit sectam ad comitatum et hundredum et hac de causa tenet tenementum suum.' Cf Coram Rege 27 Henry III, m. 3: 'Dicunt quod non est aliquis liber homo in eodem manerio nisi Willelmus filius Radulfi qui respondet infra corpus comitatus.' The fact is well known to all those who have had anything to do with manorial records.

39. Cf. Maitland, Suitors of the County Court, Eng Hist. Review, July, 1888.

40. Is it not possible to explain by the, hundredor, the following difficult passage in Domesday, ii. 100? 'Hugo de Montfort invasit tres liberos homines... unus ex his jacet ad feudum Sancti Petri de Westmonasterio testiinonio hundredi, sed fuit liberatus Hugoni in numero suorum hundredorum (corr. hundredariorum?) ut dicunt sui homines.' It is true that the term does not occur elsewhere in Domesday, but the reading as it stands appears very clumsy, and the emendation proposed would seem the easiest way to get out of the difficulty.

41. Y. B. 21/22 Edw. I. (ed. Horwood), pp. xix, 499.

42. I may be excused for again referring to the Stoneleigh Reg. f 32, d: 'Quidam tenentes eiusdem manerii tenent terras et tenementa sua in Sokemannia in feodo et hereditate de qua quidem tenura talis habetur et omne tempore habebatur consuetudo videlicet quod quando aliquis tenens eiusdem tenure terram suam alicui alienare voluerit veniat in curiam coram ipso Abbate vel eius senescallo et per vergam sursum reddat in manum domini terram sic alienandam ad opus illius qui terram illam optinebit... Et si aliquis terram aliquam huiusmodi tenure infra manerium predictum per cartam vel sine carta absque licentia dicti Abbatis alienaverit aliter quam per sursum reddicionem in curia in forma predicta, quod terra sic extra curia alienata domino dicti manerii erit forisfacta in perpetuum.'

43. Madox, Exch. i. 724, e: 'Monstraverunt Regi homines et tenentes de soca de Oswald Kirke in Com. Nottinghamiae, quod cum soka illa dudum fuisset antiquum dominicum coronae Angliae et dominus Henricus quondam Rex Angliae progenitor Regis socam illam cum pertinenciis dedisset et concessisset Henrico de Hastyngges habendam et tenendam ad communem legem... Ac licet homines et tenentes predicti et antecessores sui homines et tenentes de Soca illa inter homines communitatis comitatus Nottinghamiae et non cum tenentibus de antiquis dominicis Coronae Regis a tempore escambii predicti talliari consueverunt, assessores tamen tallagii Regis in dominicis in Comitatu Nottinghamiae praedicto... (eos) una cum illis de dominicis Regis praedictis talliari fecerunt.' Cf 428, b, c.

44. Rot. Hundr. ii. 6o8, a: 'Liberi tenentes... liberi sokemanni.' Cf 7 52, a.

45. Inquisit. post mortem 53 Henry III, n. 4 (Record Office): 'Libere tenentes ad voluntatem... libere tenentes in socagio... libere tenentes per cartam.' Rot. Hundr. ii. 47I, a. See Appendix x.

46. Warwicksh. Hund. Roll. Q. R. Misc. books, xxix. p. 44, b: '(tenens) per antiquam tenuram sine carta.' Gloucester Cart. iii. 67: 'de liberis tenentibus dicunt quod haeredes O. G. tenent tres virgatas terrae de antiqua tenura.' Cf iii. 47, 69. Christ Church Cart., Canterbury, Add. MSS. 6159, p. 70.. 'isti tenent antiquo dominico... isti tenent antiquum tenementum... inferius notati sunt oper.arii.' Domesday of St. Paul's, 46, 47: 'de antiqua hereditate.' Cf Pollock, Land-laws (2nd ed ), p. 2O9.

47. Rot. Hundr. ii. 501, b.

48. Rot. Hundr. ii. 774.

49. Coram Rege, Hill. 30 Edw. I, m. 17, (servicia sokemannorum)... merchet ad voluntatem.'

50. Rot. Hundr. ii. 846, a.

51. Rot. Hundr. ii. 781, b.

52. Peterborough Cart., Cotton MSS., Faustina, B. iii. f 97, 98.

53. Spalding Priory Cart., Cole MSS., xliii. p. 296.

54. Rot. Hundr. ii. 780 b.

55. Spalding Cart. p. 295.

56. Ibid. p. 283: 'bondus dat auxilium... scil omnes sokemanni. unam marcam.' Cf 292.

57. Ely Inqu., Cotton MS., Claudius, C. xi. 50, b: 'Tota villata tam liberi, quam alii debent facere 40 perticatas super Calcetum de Alderhe [Aldreth's Causeway] sine cibo et opere.' Cf Domesday of St. Paul's, 75.

58. Domesday of St. Paul's, 76, 77., Rot. Hundr. ii. 764, b.

59. Domesday of St. Paul's, 32: 'Omnes isti libere tenentes metunt et arant ad precarias domini et ad cibum eius sine forisfacto.' The general rule is, that freeholders join only in the boon-works (precariae) and not in the regular week-work. But socmen are found engaged in this latter also.

60. Ely Inqu., Cotton MSS., Claudius, C. xi. f 266: 'De feodis militum et libere tenentibus... heriet... relevium... sed non dabit tallagium et gersumam.' 167 b: 'herietum... relevium... pannagium... tallagium.. Ramsey Cart. i. 297.

61. Gloucester Cart. iii. 49 and 46; Battle Cart., Augm. Off. Misc. Books, N. 57, f 10, b.

62. Ely Inqu., Cotton MSS., Claudius, C. xi. f 186, b.., Omnes custumarii preter liberos qui non dant gersumam pro filiis et filiabus...

63. E. g. ibid. 44, a.

64. Bury St. Edmund's Registrum Album, Cambr. Univ., Ee. iii. 6o, f 154, b., Et nota quod si prepositus hundredi capiat gersumam. de aliquo libero, dominus habebit medietatem.' Suffolk Court Rolls, 3 (Bodleian): 'gersuma si evenerit filii vel filie, finem faciet in hundredo, sed celerarius habebit medietatem finis.'

65. Rot. Hundr. ii. 484, b; 485, a.

66. Ibid. ii 749, b.

67. Ibid. i. 6.

68. Coram Rege, Trin., 3 Edw. I, m. 14, d.

69. Rot. Hundr. i. 19.

70. Cf. a very definite case of oppression, Placit. Abbrev., 150.

71. Statutes of the Realm, i. 224.

72. Notebook of Bracton, pl. 1334 and 1644.

73. Rochester Cart. (Thorpe), 19 a: 'Dominus non debet aliquem operarium. injuste et sine judicio a terra Sua ejicere.' Ibid. 10, a: 'in crastino Sancti Martini non ponet eos (dominus) ad opera sine consensu eorundem.' Black Book of St. Augustine, Cotton MSS.' Faustina, A. i. f 185, d: '(Consuetudines villanorum de Plumsted) Villani de P. tenent quatuor juga et debent inde arare quatuor acras et seminare... et debent metere in autumpno 8 acras de ivernagio vel 4 acras de alio blado.... Et debent falcare 2 acras prati.... Item debent duo averagia per annum a Plumsted ad Newenton et nihil debent averare ad tunc nisi res que sunt ad opus conventus et que poni debent super ripam.'

74. Notebook of Bracton, pl. 1334: '... et consuetudo est quod uxores maritorum defunctorum habeant francum bancum suum de terris sokemannorum.' Rot. Hundr. i. 201, 202: 'habent et vendunt maritagia sokemannorum aliter quam deberent, quia in Kancia non est warda.'

75. Cf Elton, Tenures of Kent.

76. Notebook of Bracton, pl. 1419: 'et ipsi veniunt et dicunt quid nunquam cartam illam fecit nec facere potuit quia uillanus fuit et terram suam defendidit per furcam ct flagellum.'

77. Seebohm, Village Community, 103; followed by Scrutton, Commons and Common Fields, 38; and Ashley, Economic History, i. 18.

78. Maitland, Introduction to Manorial Rolls, lxix.

Chapter 7

The Peasantry of the Feudal Age. Conclusions.

I have divided my analysis of the condition of the feudal peasantry into two parts according to a principle forcibly suggested, as I think, by the material at hand. The records of trials in the King's Court, and the doctrines of lawyers based on them, cannot be treated in the same way as the surveys compiled for the use of manorial administration. There is a marked difference between the two sets of documents as to method and point of view. In the case of legal records a method of dialectic examination could be followed. Legal rules are always more or less connected between themselves, and the investigator has to find out, first, from the application of what principles they flow, and to find out, secondly, whether fundamental contradictions disclose a fusion of heterogeneous elements. The study of manorial documents had to proceed by way of classification, to establish in what broad classes the local variations of terms and notions arrange themselves, and what variations of daily life these groups or classes represent.     It is not strange, of course, that things should assume a somewhat different aspect according to the point of view from which they are described. Legal classification need not go into details which may be very important for purposes of manorial administration; neither the size of the holdings nor the complex variations of services have to be looked to in cases where the law of status is concerned. Still it may be taken for granted that the distinctions and rules followed by the courts had to conform in a general way with matter-of-fact conditions. Lawyers naturally disregarded minute subdivisions, but their broad classes were not invented at fancy; they took them from life as they did the few traits they chose from among many as tests for the purpose of laying down clear and convenient rules. A general conformity is apparent in every point. At the same time there is undoubtedly an opposition between the curial (if I may use that term) and the manorial treatment of status and tenure, which does not resolve itself into a difference between broad principle and details. Just because the lawyer has to keep to distinct rules, he will often be behind his age and sometimes in advance of it. His doctrine, once established, is slow to follow the fluctuations of husbandry and politics: while in both departments new facts are ever cropping up and gathering strength, which have to fight their way against the rigidity of jurisprudence before they are accepted by it. On the other hand, notions of old standing and tenacious tradition cannot be put away at once, so soon as some new departure has been taken by jurists; and even when they die out at common law such notions persist in local habits and practical life. For these reasons, which hold good more or less everywhere, and are especially conspicuous in mediaeval history, the general relation between legal and manorial documents becomes especially important. It will widen and strengthen conclusions drawn from the analysis of legal theory. We may be sure to find in thirteenth-century documents of practical administration the foundations of a system which prevailed at law in the fifteenth. And what is much more interesting, we may be sure to find in local customaries the traces of a system which had its day long before the thirteenth century, but was still lingering in broken remains.     Bracton defines villainage as a condition of men who do not know in the evening what work and how much they will have to perform next morning. The corresponding tenure is entirely precarious and uncertain at law. But these fundamental positions of legal doctrine we find opposed in daily life to the all-controlling rule of custom. The peasant knows exactly on what days he bas to appear personally or by representative at ploughings and reapings, how many loads he is bound to carry, and how many eggs he is expected to bring at Easter;(1*) in most cases he knows also what will be required from him when he inherits from his father or marries his daughter. This customary arrangement of duties does not find any expression in common law, and vice versa the rule of common law dwindles down in daily life to a definition of power which may be exercised in exceptional cases. The opposition between our two sets of records is evidently connected in this case with their different way of treating facts.     Manorial extents and inquests give in themselves only a one-sided picture of mediaeval village life, because they describe it only from the point of view of the holding; people who do not own land are very seldom noticed, and among the population settled on the land only those persons are named who 'defend' the tenement in regard to the lord. Only the chief of the household appears; this is a matter of course. He may have many or few children, many or few women engaged on his plot: the extent will not make any difference in the description of the tenement and of its services. But although very incomplete in this important respect, manorial records allow us many a glimpse at the process which was preparing a great change in the law Hired labourers are frequently mentioned in stewards' accounts, and the 'undersette' and 'levingmen' and 'anelipemen'(2*) of the extents correspond evidently to this fluctuating population of rural workmen and squatters gathering behind the screen of recognised peasant holders.     The very foundation of the mediaeval system, its organisation of work according to equalised holdings and around a manorial centre, is in course of time undermined by the process of commutation. Villains are released from ploughings and reapings, from carriage-duties and boon work by paying certain rents; they bargain with the lord for a surrender of his right of arbitrary taxation and arbitrary amercement; they take leases of houses, arable and meadows. This important movement is directly noticed by the law in so far as it takes the shape of an increase in the number of freeholders and of freehold tenements; charters and instruments of conveyance may be concerned with it. But the process is chiefly apparent in a standing contradiction with the law. Legally an arrangement with a villain either ought not to bind the lord or else ought to destroy his power. Even in law books, however, the intermediate form of a binding covenant with the villain emerges, as we have seen, in opposition to the consistent theory. In practice the villains are constantly found possessed of 'soclands,' 'forlands,' and freeholds. The passage from obligatory labour to proprietary rights is effected in this way without any sudden emancipation, by the gradual accumulation of facts which are not strictly legal and at the same time tend to become legal.     Again, the Royal courts do not know anything about 'molmen,' 'gavelmen,' or 'censuarii,' They keep to the plain distinction between free and bond. Nevertheless, all these groups exist in practice, and are constantly growing in consequence of commutation. The whole law of status gets transformed by their growth as the law of tenure gets transformed by the growth of leases. Molmen, though treated as villains by Royal courts, are already recognised as more 'free' than the villains by manorial juries. The existence of such groups testifies to something more than a precarious passage from service to rent, namely to a change from servile subjection to a status closely resembling that of peasant freeholders, and actually leading up to it. In one word, our manorial records give ample notice of the growth of a system based on free contract and not on customary labour. But the old forms of tenure and service are still existent in law, and the contradiction involved in this fact is not merely a technical one: it lies at the root of the revolutionary movement at the close of the fourteenth century. In this manner facts were slowly paving the way towards a modification of the law. But now, turning from what is in the future, to what is in the past, let us try to collect those indications which throw light on the condition of things preceding feudal law and organisation.     The one-sided conception of feudal law builds up the entire structure of social divisions on the principle of the lord's will. Custom, however sacred, is not equivalent to actionable right, and a person who has nothing but custom to lean upon is supposed to be at the will and mercy of his lord and of base or servile condition, But we find even in the domain of legal doctrine other notions less convenient for the purpose of classification, and more adapted to the practice of daily life. Servile persons and servile land are known from the nature of the services to which they are subject. This test is applied in two directions: (1) regular rural work, 'with pitch-fork and flail,' is considered servile; and this would exclude the payment of rents and occasional help in the performance of agricultural labour; (2) certain duties are singled out as marking servitude because they imply the idea of one person being owned by another, and this would exclude subjection derived from the possession of land, however burdensome and arbitrary such subjection might be.     Turning next to manorial records, we find these abortive features of feudal law resting on a very broad basis. Only that land is considered servile which owes labour, if it renders nothing but rent it is termed free. We have here no mere commutation: the notion is an old one, and rather driven back by later law than emerging from it. It is natural enough that the holder of a plot is considered free if his relations with the lord are restricted to occasional appearances at court, occasional fines, and the payment of certain rents two or three times a year. It is natural enough that the holder of another plot should be treated as a serf because he is bound to perform work which is fitted as a part into the arrangement of his lord's husbandry, and constantly brought under the control and the coercive power of the steward. This matter-of-fact contrast comes naturally to the fore in documents which are drawn up as descriptions of daily transactions and not as evidence for a lawsuit. But the terms 'free' and 'servile' are not used lightly even in such documents. We may be sure that manorial juries and bailiffs would not have been allowed to displace at their pleasure terminological distinctions which might lead people to alter their legal position. The double sense of these terms cannot be taken as arranging society under the same two categories and yet in two entirely different ways: it must be construed as implying the two sides of one and the same thing, the substance in manorial records and the formal distinction in legal records. That is to say, when the test of legal protection was applied, the people who had to perform labour were deprived of it and designated as holding in villainage, and to the people who paid rent protection was granted and they were considered as holding freely. For this very reason the process of commutation creating mol-land actually led to an increase in the number of free tenancies.(3*)     The courts made some attempts to utilise personal subjection as a distinctive feature of born villains. If it had been possible to follow out the principle, we should have been able to distinguish between villains proper and men of free blood holding in villainage. The attempt miscarried in practice, although the King's courts were acting in this case in conjunction with local custom and local juries. The reason of the failure is disclosed by manorial documents. Merchet, the most debasing incident of personal villainage, appears so widely spread in the Hundred Rolls that there can be no question, at least at the close of the thirteenth century, of treating it as a sure test of personal subjection. We cannot admit even for one moment that the whole peasant population of entire counties was descended from personal slaves, as the diffusion of merchet would lead us to suppose. The appearance of the distinction is quite as characteristic as its gradual collapse. The original idea underlying it was to connect villain status with personal slavery, and it failed because the incidents of personal slavery were confused with other facts which were quite independent of it and which were expanded over a very large area instead of a very restricted one.     And now we have ready the several links of one chain. The three tests of serfdom applied by our documents are connected with each other by the very terms in which they are stated, and at the same time they present three consecutive stages of development. The notion of serfdom is originally confined to forms of personal subjection and to the possession of land under the bane of personal subjection: in this sense servitude is a narrow term, and the condition denoted by it is exceptional. In its second meaning it connects itself with rural labour and spreads over the whole class of peasants engaged. in it. In its last and broadest sense it includes all the people and all the land not protected by the Common Law. We have no evidence as to the chronological landmarks between these several epochs, and it is clear that the passage from one to another was very gradual, and by no means implied the absolute disappearance of ancient terms. But it seems hardly doubtful that the movement was effected in the direction described; both the, intrinsic evidence of the notions under discussion and their appearance in our documents point this way.     This being so, we may expect to find some traces of the gradual spread of serfdom in the subdivisions of that comprehensive class called villainage. And, indeed, there are unmistakable signs of the fact that the flood was rising slowly and swamping the several groups of the peasantry which hitherto had been of very various conditions. The Domesday classification will have to be discussed by itself, but it may be noticed even now that its fundamental features are the distinction between serfs and villains, and the very limited number of these first. Judging by this, the bulk of the peasantry was not considered unfree. The inference is corroborated for the epoch of the early Norman kings by the laws of Henry I, in which the villain is still treated on the same footing as the ceorl of Saxon times, is deemed 'worthy of his were and of his wite,' and is called as a free man to the hundred court, although not a landlord, 'teirrarum dominus.' The hundredors of later times kept up the tradition: degraded in many ways, they were still considered as representatives of a free population. Ancient demesne tenure is another proof of the same freedom in villainage; it is protected though base, and supposes independent rights on the part of the peasantry. The position of the group of socmen outside the ancient demesne points the same way: their tenure is originally nothing more and nothing less than a customary freehold or a free copyhold, if one may say so. The law of Kent is constructed on this very basis: it is the law of free ceorls subjected to a certain manorial authority which has not been able to strike very deep roots in this soil.     But the general current went Steadily against the peasantry. The disruption of political unity at the time of the great civil war, and the systematic resumption of royal rights by Henry II, must have led to a settlement which impaired the social standing of the villain in the sense of feudal law. The immediate connexion between the lower class and the royal power could not be kept up during the troubled reign of Stephen, when England all but lapsed into the political dismemberment of the neighbouring continental states. Government and law were restored by Henry II, but he had to set a limit to his sphere of action in order that within that sphere he might act efficiently. The very growth of the great system of royal writs necessitated the drawing a sharp line between the people admitted to use them and those excluded from this benefit. One part of the revolution effected by the development of royal jurisdiction is very noticeable in our documents: the struggle between king and magnates as to the right of judging freeholders has left many traces, of which the history of the 'breve quod vocatur praecipe' is perhaps the most remarkable. But the victorious progress of royal jurisdiction in regard to freeholders was counter-balanced by an all but complete surrender of it in regard to villains. The celebrated tit. 29 of William the Conqueror's laws providing that the cultivators of the land are not to be subjected to new exactions, had lost its sense in the reign of Henry II, and so soon as it was settled that one class of tenants was to be protected, while another was to be unprotected in the king's court, the lawyers set themselves thinking over the problem of a definite and plain division of classes. Their work in this direction bears all the marks of a fresh departure. They are wavering between the formal and the material test: instead of setting up at once the convenient doctrine that villainage is proved by stock, and that in regard to service and tenure the question is decided by their certainty or uncertainty, they try for a long time to shape conclusive rules as to the kind of services and incidents which imply villainage, and for a time distinction between rural labour and rent becomes especially important.     On the whole, I think that an analysis of the legal and manorial evidence belonging to the feudal age leads forcibly to the conclusion that the general classification of society under the two heads of freeholders and villains is an artificial and a late one. A number of important groups appear between the two) and if we try to reduce them to some unity, we may say that a third class is formed by customary freeholders. Another way of stating the same thing would be to say, that the feudal notion of a freehold from which the modern notion has developed must be supplemented from the point of view of the historian by a more ancient form which is hidden, as it were, inside the class distinction of villainage. By the side of the freeholder recognised by later law there stands the villain as a customary freeholder who has lost legal protection. I do not think that the problems resulting from the ambiguous position of the feudal villain can be solved better than on the supposition of this 'third estate.'

NOTES:

1. Chandler, Court Rolls of Great Cressingham, p. 14: '20 solidi de toto Homagio quia recusaverunt preparare fenum domini. Debitum ponatur in respectum usque proximam curiam et interea scrutatur le Domesday.' A manorial extent is evidently meant. Comp. Domesday of St. Paul's.

2. Ely Inq., Cotton MSS., Claudius, C. xi. 60, a: 'Anelipemen, Anelipewyman et coterellus manens super terram episcopi vel terram alicuius custumariorum suorum metet unam sellionem in autumpno ex consuetudine que vocatur luuebene.' Cp. 42, a, 'quilibet anlepiman et anlepiwyman et quiibet undersetle metet dimidiam acram bladi,' etc., and Ramsey, Cart.i 50. -- I have not been able to find a satisfactory etymological explanation of, anelipeman,; but he seems a small tenant, and sometimes settled on the land of a villain.

3. Of course in later times the test applied in drawing the line between freehold and baser tenure was much rather the mode of conveyance than anything else. The commutation into money rent of labour services due from a tenement, held by copy of court roll, (a commutation which in some cases was not effected before the fifteenth century), did not convert the tenement into freehold; had it done so, there would have been no copyhold tenure at the present day. But I am here speaking of the thirteenth century when this, conveyancing test, could not be readily applied, when the self-same ceremony might be regarded either as the feoffment by subinfeudation of a freehold tenant or the admittance of a customary tenant, there being neither charter on the one hand nor entry on a court roll on the other hand. Thus the nature of the services due from the tenement had to be considered, and, at least in general, a tenement which merely paid a money rent was deemed freehold.