Villainage in England: Essays in English Mediaeval History

One great drawback of investigations into the history of medieval institutions consists in the very incomplete manner in which the subject is usually reflected in the documents. We have to pick up bits of evidence as to very important questions in the midst of a vast mass of uninteresting material, and sometimes whole sides of the subject are left in the shade, not by the fault of the inquirer, but in consequence of disappointing gaps in the contemporary records. Even conveyancing entries, surrenders, admittances, are of rare occurrence on some of the more ancient rolls, and the probable reason is, that they were not thought worthy of enrolment782. As for particulars of husbandry they are almost entirely absent from the medieval documents, and it is only on the records of the sixteenth and yet later centuries that we have to rely when we look for some direct evidence of the fact that the manorial communities had to deal with such questions783. And so our knowledge of these institutions must be based largely on inference. But even granting all these imperfections of the material, it must be allowed that the one side of manorial life which is well reflected in the documents—the juridical organisation of the manor—affords very interesting clues towards an understanding of the system and of its origins.

Collegiate decisions and seignorial power.

Let us repeat again, that the management of the manor is by no means dependent on capricious and onesided expressions of the lord's will. On the contrary, every known act of its life is connected with collegiate decisions. Notwithstanding the absolute character of the lord with regard to his villains taken separately, he is in truth but the centre of a community represented by meetings or courts. Not only the free, but also the servile tenantry are ruled in accordance with the views and customs of a congregation of the tenants in their divers classes. There can be no doubt that the discretion of the lord was often stretched in exceptional cases, that relations based on moral sense and a true comprehension of interests often suffered from violence and encroachment. But as a general rule, and with unimportant exceptions, the feudal system is quite as much characterised by the collegiate organisation of its parts as by their monarchical exterior. The manorial courts were really meetings of the village community under the presidency of the lord or of his steward.

Village Courts.

It is well known that later law recognises three kinds of seignorial courts: the Leet, the Court Baron, and the Customary Court. The first has to keep the peace of the King, the others are concerned with purely manorial affairs. The Leet appears in possession of a police and criminal jurisdiction in so far as that has not been appropriated by the King's own tribunals—its parallel being the sheriff's tourn in the hundred. The Court Baron is a court of free tenants entrusted with some of the conveyancing and the petty litigation between them, and also with the exercise of minor franchises. The Customary Court has in its charge the unfree population of the manor. In keeping with this division the Court Baron consists according to later theory of a body of free suitors which is merely placed under the presidency of the steward, while in the Customary Court the steward is the true and only judge, and the copyholders, customary tenants or villains, around him are merely called up as presenters.

Court Leet.

The masterly investigations of Mr. Maitland, from which any review of the subject must start, have shown conclusively, that this latter doctrine, as embodied in Coke, for instance, draws distinctions and establishes definitions which were unknown to earlier practice. The Leet became a separate institution early enough, although its name is restricted to one province—Norfolk—even at the time of the Hundred Rolls784. The foundation of the court was laid by the frank-pledge system and the necessity of keeping it in working order. We find the Leet Court sometimes under the names 'Curia Visus franci plegii,' or 'Visus de borchtruning785,' and it appears then as a more solemn form of the general meeting. It is held usually twice a year to register all the male population from twelve years upwards, to present those who have not joined the tithings, and sometimes to elect the heads or representatives of these divisions—the 'Capitales plegii786.' Sometimes the tithing coincides with the township, is formed on a territorial basis, as it were, so that we may find a village called a tithing787. This leads to the inference, that the grouping into tens was but an approximate one, and this view is further supported by the fact that we hear of bodies of twelve along with those of ten788.

View of Frank-pledge.

As to attending the meeting, a general rule was enforced to that effect, that the peasantry must attend in person and not by reason of their tenure789. But as it was out of the question to drive all the men of a district to the manorial centres on such days, exceptions of different kinds are frequent790. Besides the women and children, the personal attendants of the lord get exempted, and also shepherds, ploughboys, and men engaged in driving waggons laden with corn. Servants and aliens were considered as under the pledge of the person with whom they were staying.

Communal accusation.

The aim of its whole arrangement was to ensure the maintenance of peace, and therefore everybody was bound on entering the tithing to swear, not only that he would keep the peace, but that he would conceal nothing which might concern the peace791. It is natural that such a meeting as that held for the view of frank-pledge should begin to assume police duties and a certain criminal jurisdiction. Mr. Maitland has shown how, by its intimate connexion with the sheriff's tourn, the institution of frank-pledge was made to serve the purpose of communal accusation in the time of Henry II. The Assize of Clarendon (1166) gave the impulse in regard to the Sheriff's Court, and private lords followed speedily on the same line, although they could not copy the pattern in all its details, and the system of double presentment described by Britton and Fleta proved too cumbersome for their small courts with only a few freeholders on them. In any case the jurisdiction of the Court Leet is practically formed in the twelfth century, and the Quo Warranto inquiries of the thirteenth only bring out its distinctions more clearly792.

Court baron and customary court.

The questions as to the opposition between Court Baron and Customary Court are more intricate and more important. Mr. Maitland has collected a good deal of evidence to prove that the division did not exist originally, and that we have before us in the thirteenth century only one strictly manorial court, the 'halimotum.' I may say, that I came to the same conclusion myself in the Russian edition of the present work quite independently of his argument. Indeed a somewhat intimate acquaintance with the early Court Rolls must necessarily lead to this doctrine. If some distinctions are made, they touch upon a difference between ordinary meetings and those which were held under exceptional circumstances and attended by a greater number of suitors than usual. The expression 'libera curia' which meets us sometimes in the documents is an exact parallel with that of 'free gallows,' and means a court held freely by the lord and not a court of free men. Mr. Maitland adds, that he has found mention of a court of villains and one of knights, but that he never came across a court of barons in the sense given in later jurisprudence to the term 'Court Baron.' Here I must put in a trifling qualification which does not affect his main position in the least. The Introduction to the Selden Society's second volume, which is our greatest authority on this subject, mentions a case when the halimot was actually divided on the principle laid down by Coke and later lawyers generally. I mean the case of Steyning, where the Abbot holds a separate court for free tenants and another for his villains. The instance belongs to the time of the Edwards, but it is marked as an innovation and a bad one793. It shows, however, that the separation of the courts was beginning to set in. The Steyning case is not quite an isolated one. I have found in the Hundred Rolls the expression Sockemanemot to designate a court attended by free sokemen794, and it may be suggested that the formation of the so-called Court Baron may have been facilitated by the peculiar constitution and customs of those courts where the unfree element was almost entirely absent. The Danish shires and Kent could not but exercise a certain influence on the adjoining counties. However this might be, the general rule is, undoubtedly, that no division is admitted, and that all the suitors and affairs are concentrated in the one manorial court—the halimot.

The halimot.

It met generally once every three weeks, but it happens sometimes that it is called together without a definite limit of time at the pleasure of the lord795. Cases like that of the manors of the Abbey of Ramsey, in which the courts are summoned only twice a year, are quite exceptional, and in the instance cited the fact has to be explained by the existence of an upper court for these estates, the court of the honour of Broughton796. The common suitors are the peasants living within the manor—the owners of holdings in the fields of the manor. In important trials, when free men are concerned, or when a thief has to be hanged, suitors are called in from abroad—mostly small free tenants who have entered into an agreement about a certain number of suits to the court797. These foreign suitors appear once every six weeks, twice a year, for special trials upon a royal writ, for the hanging of thieves798, etc. The duty of attending the court is constantly mentioned in the documents. It involved undoubtedly great hardships, expense, and loss of time: no wonder that people tried to exempt themselves from it as much as possible799. Charters relating to land provide for all manner of cases relating to suit of court. We find it said, for instance, that a tenant must make his appearance on the next day after getting his summons, even if it was brought to him at midnight800. When a holding was divided into several parts, the most common thing was that one suit remained due from the whole801. All these details are by no means without importance, because they show that fiscal reasons had as much to do with the arrangement of these meetings as real interests: every court gave rise to a number of fines from suitors who had made default.

Procedure of the halimot.

The procedure of the halimot was ruled by ancient custom. All foreign elements in the shape of advocates or professional pleaders were excluded. Such people, we are told by the manorial instructions, breed litigation and dead-letter formalism, whereas trials ought to be conducted and judged according to their substance802. Another ceremonial peculiarity of some interest concerns the place where manorial courts are held. It is certain that the ancient gemóts were held in the open air, as Mr. Gomme shows in his book on early folk-mots. And we see a survival of the custom in the meeting which used to be held by the socmen of Stoneleigh on Motstowehill803. But in the feudal period the right place to hold the court was the manorial hall. We find indeed that the four walls of this room are considered as the formal limit of the court, so that a man who has stept within them and has then gone off without sufficient reason is charged with contempt of court804. Indeed, the very name of 'halimot' can hardly be explained otherwise than as the moot held in the hall805. The point is of some interest, because the hall is not regarded as a purely material contrivance for keeping people protected against the cold and the rain, but appears in close connexion with the manor, and as its centre and symbol.

The halimot and agriculture.

We hear very little of husbandry arrangements made by the courts806, and even of the repartition of duties and taxes807. Entries relating to the election of officers are more frequent808, but the largest part of the rolls is taken up by legal business of all sorts.

Presentments.

The entire court, and sometimes a body of twelve jurors, present those who are guilty of any offence or misdemeanour. Ploughmen who have performed their ploughing on the lord's land badly, villains who have fled from the fee and live on strange soil, a man who has not fulfilled some injunction of the lord, a woman who has picked a lock appended to the door of her cottage by a manorial bailiff, an inveterate adulterer who loses the lord's chattels by being fined in the ecclesiastical courts—all these delinquents of very different kinds are presented to be punished, and get amerced or put into the stocks, according to the nature of their offences. It ought to be noticed that an action committed against the interests of the lord is not punished by any onesided act of his will, or by the command of his steward, but treated as a matter of legal presentment. The negligent ploughman is not taken to task directly by the bailiff or any other overseer, but is presented as an offender by his fellow-peasants, and according to strict legal formality. On the other hand, the entries are worded in such a way that the part played by the court is quite clear only as to the presenting of misdeeds, while the amercement or punishment is decreed in some manner which is not specified exactly. We read, for instance, in a roll of the Abbey of Bec how 'the court has presented that Simon Combe has set up a fence on the lord's land. Therefore let it be abated.... The court presented that the following had encroached on the lord's land, to wit, William Cobbler, Maud Robins, widow (fined 12d.), John Shepherd (fined 12d.).... Therefore they are in mercy809.' Who has ordered the fence to be thrown down, and who has imposed the fines on the delinquents? The most natural inference seems to be that the penalties were imposed by the lord or the presiding officer who represented him in the court. But it is by no means impossible that the court itself had to decide on the penalty or the amount of the amercement after first making the presentment as to the fact. Its action would merely divide itself into two independent decisions. Such a procedure would be a necessity in the case of a free tenant who could not be fined at will; and there is nothing to show that it was entirely different in regard to the servile tenantry. When the lord interferes at pleasure this is noted as an exceptional feature810. It is quite possible, again, that the amercement was imposed on the advice or by a decision of certain suitors singled out from the rest as persons of special credit, as in a case from the same manorial rolls of Bec811. It is hardly necessary to draw very precise conclusions, as the functions of the suitors do not appear to have been sharply defined. But for this very reason it would be wrong to speak of the onesided right of the lord or of his representative to impose the penalty.

Civil jurisdiction.

The characteristic mixture of different elements which we notice in the criminal jurisdiction of the manorial court may be seen also if we examine its civil jurisdiction. We find the halimot treating in its humble region all the questions of law which may be debated in the courts of common law. Seisin, inheritance, dower, leases, and the like are discussed, and the pleading, though subject to the custom of the manor, takes very much the shape of the contentions before the royal judges. Now this civil litigation is interesting from two points of view: it involves statements of law and decisions as to the relative value of claims. In both respects the parties have to refer to the body of the court, to its assessors or suitors. The influence of the 'country' on the judgment goes further here than in the Common Law Courts, because there is no independent common law to go by, and the custom of the manor has generally to be made out by the manorial tenants themselves. And so a party 'puts himself on his country,' not only in order to decide some issue of fact, but also in regard to points of customary law. Inquisitions are made and juries formed quite as much to establish the jurisprudence of the court as to decide who has the better claim under the said jurisprudence. Theoretically it is the full court which is appealed to, but in ordinary cases the decision rests with a jury of twelve, or even of six. The authority of such a verdict goes back however to the supposed juridical sense or juridical knowledge of the court as a body. Now it cannot be contested that such an organisation of justice places all the weight of the decision with the body of the suitors as assessors. The presiding officer and the lord whom he represents have not much to do in the course of the deliberation. If we may take up the comparison which Mr. Maitland has drawn with German procedure812, we shall say that the 'Urtheilfinder' have all the best of it in the trial as against the 'Richter.' This 'Richter' is seemingly left with the duties of a chairman, and the formal right to draw up and pronounce a decision which is materially dependent on the ruling of the court. But a special reserve of equity is left with the lord, and in consequence of its operation we find some decisions and sentences altered, or their execution postponed813. I have to endorse one more point of Mr. Mainland's exposition, namely, his view of the presentment system as of a gradual modification of the original standing of the manorial suitors as true assessors of the court. Through the influence of the procedure of royal courts, on the one hand, of the stringent classifications of the tenantry in regard to status on the other, the presenters were gradually debased, and legal learning came to maintain that the only judge of a customary court was its steward. But a presentment of the kind described in the manorial rolls vouches for a very independent position of the suitors, and indeed for their prevalent authority in the constitution of the tribunal.

Surrender and admittance.

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

Meaning of surrender.

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

The rod and the festuca.

I am even inclined to go further: it seems to me that the manorial ceremony of surrender and admittance, as considered from the point of view of legal archæology, may have gone back to a practice which has nothing to do with the lord's ownership, although it was ultimately construed to imply this notion. The tenant enfeoffed of his holding on the conditions of base tenure was technically termed tenant by copy of court roll or tenant by the rod—par la verge. This second denomination is connected with the fact that, in cases of succession as well as in those of alienation, the holding passed by the ceremonial action of the steward handing a rod to the person who was to have the land. Now, this formality looks characteristic enough; it is exactly the same as the action of the 'salman' in Frankish law where the transmission of property is effected by the handing of a rod called 'festuca.' The important point is, that the 'salman' was by no means a representative of lordship or ownership, but the necessary middleman prescribed by customary law, in order to give the transaction its consecration against all claims of third persons. The Salic law, in its title 'de affatomire,' presents the ceremony in a still earlier stage: when a man wants to give his property to another, he has to call in a middleman and witnesses; into the hands of this middleman he throws a rod to show that he relinquishes all claim to the property in question. The middleman then behaves as owner and host, and treats the witnesses to a meal in the house and on the land which has been entrusted to him. The third and last act is, that this intermediate person passes on the property to the donee designated by the original owner, and this by the same formal act of throwing the rod814. The English practice has swerved from the original, because the office of the middleman has lapsed into the hands of the steward. But the characteristic handing of the rod has well preserved the features of the ancient 'laisuwerpitio' ('the throwing on to the bosom'), and, indeed, it can hardly be explained on any other supposition but that of a survival of the practice. I beg the reader to notice two points which look decisive to me: the steward when admitting a tenant does not use the rod as a symbol of his authority, because he does not keep it—he gives it to the person admitted. Still more, in the surrender the rod goes from the peasant-holder to the steward. Can there be a doubt that it symbolises the plot of land, or rather the right over the plot, and that in its passage from hand to hand there is nothing to show that the steward as middleman represents absolute ownership, while the peasants at both ends are restricted to mere occupation on sufferance815? Is it necessary to explain that these ceremonial details are not trifles from a historical point of view? Their arrangement is not a matter of chance but of tradition, and if later generations use their symbols mechanically, they do not invent them at haphazard. Symbols and ceremonies are but outward expressions of ideas, and therefore their combinations are ruled by a certain logic and are instinct with meaning. In a sense their meaning is deeper and more to be studied than that supplied by theories expressed in so many words: they give an insight into a more ancient order of things. It may be asked, in conclusion, why a Frankish form should be found prevalent in the customary arrangement of the English manorial system? The fact will hardly appear strange when we consider, firstly, that the symbolical acts of investiture and conveyancing were very similar in Old English and Old Frankish law816, and that many practices of procedure were imported into England from France, through the medium of Normandy. It is impossible at the present date to trace conclusively the ceremonies of surrender and admittance in all their varieties and stages of development, but the most probable course of progress seems to have been a passage from symbolical investiture in the folk-law of free English ceorls through the Frankish practice of 'affatomire,' to the feudal ceremony of surrender and admittance by the steward.