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.

1. 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).

2. 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.'

1. 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.'

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

3. 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.

1. 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.

2. 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.

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

1. 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.'

1. 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.

2. 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.

1. 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.'

1. 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.)

2. 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.

3. 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.'

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

2. See App. I and II.

3. 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.'

1. 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.

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

2. Bracton, f. 267, b.

3. 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).

1. 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.