!"

YALE
UNIVERSITY LIBRARY

VILLAINAGE IN ENGLAND

VINOGRADOFF

HENRY FROWDE

Oxford University Press Warehouse
Amen Corner, E.C.

(^iffainage itt (Btt^fdtt^

ESSAYS

IN

ENGLISH MEDIAEVAL HISTORY

PAUL VINOGRADOFF

professor in the UNIVEESITY OF MOSCOW

AT THE CLARENDON PRESS
1892
\_AU rights reser'ved'\

0;cfot6
PRINTED AT THE CLARENDON PRESS
BY HORACE HART, PRINTER TO THE UNIVERSITY

'B y ^ . / ^/ ^

PREFACE

A foreigner's attempt to treat of difficult and much
disputed points of English history requires some justifica
tion. Why should a Russian scholar turn to the arduous
study of English mediaeval documents ? Can he say any
thing of sufficient general interest to warrant his exploration
of so distant a field ?
The first question is easier to answer than the second.
There are many reasons why we in Russia are especially
keen to study what may be called social history — the
economic development of nations, their class divisions and
forms of co-operation. We are still living in surroundings
created by the social revolution of the peasant emancipa
tion ; many of our elder contemporaries remember both
the period of serfdom and the passage from it to modern
life ; some have taken part in the working out and putting
into practice of the emancipating acts. Questions entirely
surrendered to antiquarian research in the West of Europe
are still topics of contemporary interest with us.
It is not only the civil progress of the peasantry that we
have to notice, but the transformation and partial decay of
the landed gentry, the indirect influence of the economic
convulsions on politics, ideas, and morality, and, in a more
special way, the influence of free competition on soil and
people that had been fettered for ages, the passage from
' natural husbandry ' to the money system, the substitution
of rents for labour, above all, the working of communal
institutions under the sway of the lord and in their modern
free shape. Government and society have to deal even
now with problems that must be solved in the light of

VI

\prcTacc.

history, if in any light at all, and not by instinct groping
in the dark. All such practical problems verge towards
one main question : how far legislation can and should act
upon the social development of the agrarian world. Are
economic agencies to settle for themselves who has to till
land and who shall own it ? Or can we learn from Western
history what is to be particularly avoided and what is to
be aimed at? I do not think that anybody is likely to
maintain at the present day, that, for instance, a study of
the formation and dissolution of the village community in
the West would be meaningless for politicians and thinkers
who have to concern themselves with the actual life of the
village community in the East.
Another powerful incitement comes from the scientific
direction lately assumed by historical studies. They have
been for a long time very closely connected with fine
literature : their aim was a lifelike reproduction of the
past ; they required artistic power, and stirred up feelings
as well as reflective thought. Such literary history has a
natural bent towards national tradition, for the same reason
that literature is attracted by national life : the artist
gains by being personally in touch with his subject ; it is
more easy for him to cast his xnaterial into the right mould.
Ancient history hardly constitutes an exception, because
the elements of classical civilisation have been appropriated
by European nations so as to form part of their own past.
What I call literary history has by no means done all its
work. There is too much in the actions of men that
demands artistic perception and even divination on the part
of the historian, to allow this mode of treatment to fall into
decay. But nobody will deny that historical study is ex
tending more and more in the direction of what is now
called anthropology and social science. Historians are in
quest of laws of development and of generalisations that
shall unravel the complexity of human culture, as physical

^Preface.

VII

and biological generalisations have put into order our know
ledge of the phenomena of nature.
There is no subject more promising from this point of
view than the history of social arrangements. It borders
on political economy, which has already attained a scien
tific standing ; part of its material has been fashioned by
juridical doctrine and practical law, and thereby moulded
into a clear, well-defined shape ; it deals with facts recur
ring again and again with much uniformity, and presenting
great facilities for comparison ; the objects of its observation
are less complex than the phenomena of human thought,
morality, or even political organisation. And from the
point of view of the scientific investigator there can be no
other reason for taking up a particular epoch or nation, but
the hope of getting a good specimen for analysis, and of
making use of such analysis for purposes of generalisation.
Now I think that there can be no better opportunity for
studying early stages of agrarian development than that
afforded by English mediaeval history. The sources of
information are comparatively abundant in consequence
of the powerful action of central authority ; from far back
in the feudal time we get legal and fiscal documents to en
lighten us, not only about general arrangements but even
about details in the history of landed property and of
the poorer classes. And the task of studying the English
line of development is rendered especially interesting be
cause it stands evidently in close connexion with the
variations of the same process on the continent. Scan
dinavian, German, French, Italian, and Spanish history
constantly present points of comparison, and such differ
ences as there are may be traced to their origins just
because so many facts are in common to start with. I
think that all these considerations open a glorious vista for
the enquirer, and the interest excited by such publications
as those of Fustel de Coulanges proves that the public is

Vlll

\pv^fcict.

fully alive to the importance of those studies in spite of
their dry details.
What could I personally undertake to further the great
objects of such investigation ? The ground has been surveyed
by powerful minds, and many controversies show that it is
not an easy one to explore. Two main courses seemed
open in the present state of the study. A promising method
would have been to restrict oneself to a definite provincial
territory, to get intimately acquainted with all details of
its geography, local history, peculiarities of custom, and to
trace the social evolution of this tract of land as far back
as possible, without losing sight of general connexions and
analogies. How instructive such work may become may
be gathered from Lamprecht's monumental monograph on
the Moselland, which has been rightly called by its author
' Deutsches Wirthschaftsleben im Mittelalter.' Or else,
one might try to gather the general features of the English
mediaeval system as embodied in the numerous, one might
almost say innumerable, records of the feudal period, and
to work back from them into the imperfectly described
pre-feudal age. Such enquiry would necessarily leave out
local peculiarities, or treat them only as variations of
general types. From the methodical point of view it has
the same right to existence as any other study of ' univer
salities ' which are always exemplified by individual beings,
although the latter are not made up by them, but appear
complicated in every single case by additional elements.
Being a foreigner, I was driven to take the second course.
I could not trust myself to become sufficiently familiar with
local life, even if I had the time and opportunity to study
it closely. I hope such investigations may be taken up by
scholars in every part of England and may prosper in their
hands; the gain to general history would be simply invalu
able. And I was not sorry of the necessity of going by the
second track, because I could hope to achieve something

(preface. ix
useful even if I went wrong on many points. Every year
brings publications of Cartularies, Surveys, Court-rolls ;
the iniportance ofthese legal and economic records has been
duly realised, and historians take them more and more into
account by the side of annals and statutes. But surely some
attempt ought to be made to concentrate the results of scat
tered investigation in this field. The Cartularies of Ramsey,
Battle, Bury St. Edmunds, St. Paul's, the Hundred Rolls,
the Manorial Records of Broughton and King's Ripton,
give us material of one and the same kind, which, for all
its wealth and variety, presents great facilities for classi
fication and comparison^. I have seen a good many of
these documents, both published and in manuscript, and
I hope that my book may be of some service in the way
of concentrating this particular study of manorial records.
I am conscious how deficient my work is in many respects ;
but if by the help of corrections, alterations, additions, it
may be made to serve to some extent for the purpose, I
shall be glad to have written it. I may say also that it is
intended to open the way, by a careful study of the feudal
age, for another work on the origins of English peasant life
in the Norman and pre-Norman periods.
One pleasant result the toil expended on mediaeval
documents has brought me already. I have come into
contact with English scholars, and I can say that I have
received encouragement, advice, and support in every case
¦when I had to apply for them, and in so large and liberal
a measure as I could hardly hope for or expect. Of two
men, now dead, I have to repeat what many have said
before me. Henry Bradshaw was the first to lay an English
1 Miss Lamond's edition of 'Walter of Henley did not appear until the
greater part of my book was in type. I had studied the ¦work in MS. So
also I studied the Cartulary of Battle Abbey in MS. without being aware
that it had been edited by Mr. Scargill Bird. Had Mr. Gomme's Village
Communities come to my hands at an earlier date I should have made more
references to it.

X

(preface.

MS. cartulary before me in the Cambridge University
Library ; and in all my travels through European libraries
and archives I never again met such a guide, so ready to
help from his inexhaustible store of palaeographical, lin
guistic and historical learning. Walford Selby was an in
valuable friend to me at the Record Office— always willing
and able to find exactly what was wanted for my researches.
It would be impossible to mention all those from whom
I have received help in one way or another, but I should
like to speak at least of a few. I have the pleasant duty of
thanking the Marquis of Bath for the loan of the Longleat
MS. of Bracton, which was sent for my use to the Bodleian
Library. Lord Leigh was kind enough to allow of my com
ing to Stoneleigh Abbey to work at a beautiful cartulary in
his possession, and the Hon. Miss Cordelia Leigh took the
pains of making for me some additional extracts from that
document. Sir Frederick Pollock and Mr. York Powell
have gone through the work of reading my proofs, and I
owe to them many suggestions for alterations and improve
ments. I have disputed some of Mr. Seebohm's opinions
on mediaeval history ; but I admit freely that nobody has
exercised a stronger influence on the formation of my own
views, and I feel proud that personal friendship has given
me many opportunities of admiring the originality and width
of conception of one who has done great things for the
advancement of social history. As for F. W. Maitland, I
can only say that my book would hardly have appeared
at all if he had not taken infinite trouble to further its
publication. He has not only done everything in his power
to make it presentable to English readers in style and
wording, but as to the, subject-matter, many a friendly
suggestion, many a criticism I have had from him, and if
I have not always profited by them, the blame is to be cast
entirely on my own obstinacy.
PAUL VINOGRADOFF.

CONTENTS

PAGE
INTRODUCTION  i

FIRST ESSAY.
The Peasantry of the Feudal Age.
CHAPTER I.
The Legal Aspect of Villainage. General Conceptions . 43
CHAPTER II.
Rights and Disabilities of the Villain  59
CHAPTER III.
Ancient Demesne  89
CHAPTER IV.
Legal Aspect of Villainage. Conclusions. . . . 127
CHAPTER V.
The Servile Peasantry of Manorial Records . . . .138
CHAPTER VI.
Free Peasantry . . . ./  178
CHAPTER VII.
The Peasantry of the Feudal Age. Conclusions . . .311

SECOND ESSAY.
The Manor and the 'Village Community.
chapter i.
PAGE
The Open Field System and the Holdings . . . .223
CHAPTER II.
Rights of Common  250
CHAPTER III.
Rural Work and Rents  . . 278
CHAPTER IV.
The Lord, his Servants and Free Tenants . . . 313

CHAPTER V.
The Manorial Courts ....

354

CHAPTER VI.
The Manor and the Village Community. Conclusions . . 397

APPENDIX 

INDEX  ,
 . 461

INTRODUCTION.
When the time comes for writing a history of the nine
teenth century, one of the most important and attractive
chapters will certainly be devoted to the development of
historical literature. The last years of a great age are
fast running out : great has been the strife and the work in
the realm of thought as well as in the material arrange
ment of life. The generations of the nineteenth century
have witnessed a mighty revival of religious feeling ; they
have attempted to set up philosophical systems as broad
and as profound as any of the speculations of former
times ; they have raised the structure of theoretical and
applied science to a height which could hardly have been
foreshadowed some two hundred years ago. And still it
is to historical study that we have to look as the most
characteristic feature of the period. Medieval asceticism
in its desperate struggle against the flesh, and Puritanism
with its sense of individual reconciliation with God, were
both more vigorous forms of religious life than the
modern restorations of faith and Church, so curiously
mixed up with helplessness, surrender of acquired truth,
hereditary instincts, and utilitarian reflection. In philo
sophy, Hegel's metaphysical dialectic, Schopenhauer's
transformation of Kant's teaching, and the attempts of
English and French positivism at encyclopaedical science
may be compared theoretically with Plato's poetical
idealism or with the rationalistic schools of the seventeenth
and eighteenth centuries. But it would be difficult to deny,
that in point of influence on men's minds, those older
systems held a more commanding position than these :
Hegel seems too arbitrary and phantastical, Schopen
hauer too pessimistic, positivism too incomplete and
barren as to ultimate problems to suit the practical require
ments of philosophy ; and people are already complaining
VOL. I. B

2 ^nttobucdon.
of the decay of philosophical study. In science, again, the
age of Darwin is certainly second to none, but it has to
share its glory with the age of Newton, and it may be
reasonably doubted whether the astronomer, following in
the footsteps of Galileo and Kepler, was not actuated by
even greater thirst and pride of knowledge than the modern
biologist or geologist. It is otherwise with regard to
history.
Progress of Students of science are wont to inveigh against the
methods, inexact character of historical research, its incoherence and
supposed inability to formulate laws. It would be out of
place here to discuss the comparative value of methods and
the one-sided preference given by such accusers to quanti
tative analysis ; but I think that if these accusers were better
acquainted with the subject of their attacks, or even more
attentive to the expressions of men's life and thought around
them, they would hardly dare to maintain that a study
which in the short space of a century has led to a complete
revolution in the treatment of all questions concerning man
and society, has been operating only by vague assumptions
and guesses at random. An investigation into methods
cannot be undertaken in these introductory pages, but a
general survey of results may be attempted. If we merely
take a single volume, Tocqueville's Ancien Regime, and ask
ourselves whether anything at all like it could have been
produced even in the eighteenth century, we shall have a
sense of what has been going on in the line of historical
study during the nineteenth. Ever since Niebuhr's great
stroke, historical criticism has been patiently engaged in
testing, sifting, and classifying the original materials, and it
has now rendered impossible that medley of discordant
authorities in which eighteenth-century learning found its
confused notions of Romans in French costume, or sought
for modern constitutional ideas as manifest in the policy of
the Franks. Whole subjects and aspects of social life
which, if treated at all, used to be sketchily treated in some
appendix by the historian, or guessed at like a puzzle by
the antiquarian, have come to the fore and are recognised

3n^tro6ttcfion. 3
as the really important parts of history. In a word, the
study of the past vacillates no longer between the two
extremes of minute research leading to no general results
and general statements not based on any real investigation
into facts. The laws of development may still appear only
as dim outlines which must be more definitely traced by
future generations of workers, but there is certainly a con
stant progress of generalisation on firmly established pre
mises towards them.
What is more striking, the great change in the ways and Growing
results of history has made itself felt on all the subjects history on
which surround it. Political economy and law are assum- '"°?''«<'
, subjects.
mg an entirely new shape under the influence of historical
conceptions : the tendency towards building up dogmatic
doctrine on the foundation of abstract principle and by
deductive methods is giving way to an exact study of facts
in their historical surroundings, and to inquiries into the
shifting conditions under which the problems of social
economy and law are solved by different epochs. As a
brilliant representative of legal learning has ironically put
it, it would be better for one nowadays to be convicted of
petty larceny than to be found deficient of 'historical-
mindedness.' The influence of historical speculation on
politics is yet more definite and direct : even the most
devoted disciples of particular creeds, the most ardent ad
vocates of reform or reaction dare not simply take up the
high standing ground of abstract theory from which all
political questions were discussed less than a hundred years
ago : the socialist as well as the partisan of aristocracy
is called on to make good his contention by historical
arguments. It may be urged that the new turn thus taken is not
altogether beneficial for practical life. Men of fanatical
conviction were more likely to act and die for the eternal
truth revealed to them, than people reflecting on the
relative character of human arrangements. But can one
get blissfully onesided by merely wishing to be so ? And
is it not nobler to seek knowledge in the hope that it
B 3

4 Jntvob\nction,
will right itself in the end, than to reject it for the sake of
being comfortable ? However this may be, the facts can
hardly be denied : the aspiration of our age is intensely
historical ; we are doing more for the relative, than for the
absolute, more for the study of evolution than for the
elucidation of principles which do not vary.
Sketch of It will not be my object to give a sketch of the gradual
d^viir"^ rise of historical study in the present century : such an
mTnt T undertaking must be left to later students, who will com-
tor^L"'" mand a broader view of the subject and look at it with less
necessary passion and prejudice than we do now. But Lord Acton s
duS'bn excellent article ^ has shown that the task is not quite hope-
'° ''= less even now, and I must try, before starting on my arduous
inquiry into the social history ofthe middle ages in England,
to point out what I make of the work achieved in this
direction, and what object I have in view myself. Quite
apart from any questions of detail which may come under
consideration as the treatment of the subject requires it,
I have to say in what perspective the chief schools of
historians present themselves to my view, in what relation
they stand to each other, to show how far they have
pushed the inquiry, and what problems still remain un
solved. Such a preliminary sketch must not be carried
out with a view to criticism and polemics, but rather as
the general estimate of a literary movement in its various
phases.
Late recog- It is a remarkable fact, that the vast importance of the
th '°°l°^ f ^°^^^^ side of history has been recognised later than any
social his- other aspect of that study. Stating things very broadly, one
°^^' may say that it was pushed to the fore about the middle
of our century by the interests and forces at play in actual
life : before 1 848 the political tendency predominates ; after
1848 the tide turns in favour ofthe social tendency. I
mean that in the first half of the century men were chiefly
engaged in reorganising the State, in trying to strike a
balance between the influence of government and the
liberties of the people. The second half of the century is
' English Historical Review, No. i.

engrossed by the conflict between classes, by questions
of economical organisation, by reforms of civil order.
Historical literature, growing as it was in the atmosphere
of actual life, had to start from its interests, to put arid
solve its problems in accordance with them. But it is
no wonder that the preceding period had already touched
upon a number of questions that were fated to attract most
attention in later research. The rise of the Constitution,
for instance, could not be treated without some regard
being paid to the relative position of classes ; it would have
been out of the question to speak of political feudalism
without taking into account the social bearing of the
system. And so a sketch of the literary, treatment of
social questions must begin with books which did not aim
directly at a description of social history.
I shall not detain the reader over the work achieved in the character-
seventeenth and eighteenth centuries. The learninsr of a '^'K^ °^ *^
work done
belden or of a Madox is astounding, and a student of the in the
present day has to consult them constantly on particular ^ei^6°'e6°il»
questions ; but they never had in mind to embrace the eighteenth
history of their country as a whole. Facts are brought
into a system by Coke, but the system is strictly a legal
one ; undigested historical knowledge is made to yield the
necessary store of leading cases, and, quite apart from the
naive perversion of most particulars, the entire view of the
subject is thoroughly opposed to historical requirements, for
it makes the past an illustration of the present, and regards
it as planned on the same lines. There is no lack of books
setting forth historical proof for some favourite general
thesis or arranging facts according to some general idea,
but such attempts were distinguished by unbounded
imagination and by endless sacrifices of fact to the
object of the writer's devotion. The curious literary by
play to the struggle of political party which Aug. Thierry^
has artistically illustrated in France from the writings of
Boulainvilliers and Dubos, Mably and L6zardiere, could
' In his Considerations sur I'histoire de France.

6 Jntvobttction,
certainly be matched in England by a tale of the historical
argumentation of Bradyi, or Petyt^ or Granville Sharp.
Nothing can be more eloquent in a sense than the title
given by this last author to his book on the system of
frankpledge : — " An account of the Constitutional English
Polity of Congregational Courts, and more particularly of
the great annual court of the people, called the View of
Frankpledge, wherein the whole body of the Nation was
arranged into the regular divisions of Tythings, Hundreds,
etc. : — the happy effect of that excellent institution, in pre
venting robberies, riots, etc., whereby, in law, it was justly
deemed ' Summa ef maxima securitas : ' — that it would
be equally beneficial to all other nations and countries, as
well under monarchical as republican establishments ; and
that, to the English Nation in particular, it would afford
an effectual means of reforming the corruption of Parlia
ment by rendering the representation of the people per
fectly equal, in exact numerical proportion to the total
number of householders throughout the whole realm ^."
Historical research, in the true sense of the word, was
indeed making its first appearance in the eighteenth
century, and it was more fruitful in England than in any
other country, because England was so far ahead of the
Continent in its political condition : the influence of an in
telligent society in political affairs had for its counterpart a
greater insight into the conditions of political development.
But the great English historians of the eighteenth century
were looking to problems in other fields than that of social
history. Robertson was prompted by an interest in the
origins of that peculiar community called Western Europe,
so distinctly dismembered in its component States and so
closely united by ideal and material ties ; Gibbon could
see the shadows of the old world in which the new world
was living ; both had been attracted to research by an
' History of Boroughs.
' Ancient Rights of the Commons of England.
' Quoted by Palgrave, English Commonwealth, i. 19a, from the second
edition of 1786. The first appeared in 1784.

5tt^ro6ttC^ion. 7
admirable sense of influences deeper and stronger than
nationality, or State, or class, and both remained indifferent
to the humbler range of English social history. Hume
took his stand on England, but he had to begin with a
general outline and the explanation of the more apparent
changes in State and Church.
In this way current notions on our questions remained Black-
towards the close of the eighteenth century still undis- commen-
turbed by writers of a high order. We may take as a fair taries.
sample of such current notions Sir William Blackstone's
historical digressions, especially those in the second volume
ofhis Commentaries'^. There is no originality about them,
and the lack of this quality is rather an advantage in this
case : it enables us through one book to glance at an entire
literature. I may be allowed to recall its most striking
points to the mind of my readers.
The key to the whole medieval system and to the
constitution emerging from it is to be found in feudalism.
' The constitution of feuds had its original from the military
policy of the northern or Celtic nations, the Goths, the
Huns, the Franks, tiie Vandals, and the Lombards, who
poured themselves into all the regions of Europe, at the
declension of the Roman Empire. It was brought by
them from their own countries, and continued in their
respective colonies as the most likely means to secure
their new acquisitions, and to that end large districts or
parcels of land were allotted by the conquering general to
the superior officers of the army, and by them dealt out
again in smaller parcels or allotments to the inferior officers
and most deserving soldiers.' ' Scarce had these northern
conquerors established themselves in their new dominions,
when the wisdom of their constitutions, as well as their
personal valour, alarmed all the princes of Europe. Where
fore most, if not all, of them thought it necessary to enter
into the same or a similar plan of policy. And thus, in the
' The first edition of the Commentaries appeared in 1765. I have been
using that of 1800.

8 Jnftro6ttcftOtt.
compass of a very few years, the feudal constitution, or the
doctrine of tenure, extended itself over all the western
world.' ' But this feudal polity, which was thus by degrees
established over all the Continent of Europe, seems not
to have been received in this part of our island, at least
not universally and as a part of our national constitution,
till the reign of William the Norman. This introduction,
however, of the feudal tenures into England by King
William does not seem to have been effected immediately
after the Conquest, nor by the mere arbitrary will and
power of the Conqueror, but to have been gradually estab
lished by the Norman barons, and afterwards universally
consented to by the great Council of the nation.' ' The
new polity therefore seems not to have been imposed by
the Conqueror, but nationally and freely adopted by the
general assembly of the whole realm.' ' By thus consent
ing to the introduction of feudal tenures, our English
ancestors probably meant no more than to put the
kingdom in a state of defence by establishing a military
system. But whatever their meaning was, the Norman
interpreters . . . gave a very different construction to this
proceeding, and thereupon took a handle to introduce^
not only the rigorous doctrine which prevailed in the
duchy of Normandy, but also such fruits and dependencies,
such hardships and services, as were never known to other
nations.' ' And from hence arises the inference, that the
liberties of Englishmen are not (as some arbitrary writers
would represent them) mere infringements of the king's
prerogative, but a restoration of the ancient constitution,
of which our ancestors had been defrauded by the art and
finesse of the Norman lawyers, rather than deprived by the
force of the Norman arms.'
The structure of the component parts is (for Blackstone)
as ancient as the constitution of the whole. The English
manor is of Saxon origin in all its essential characteristics,
but the treatment of the people within the manor under
went a very notable change in consequence of the Norman

invasion. In Saxon times the common people settled on
folkland were immersed in complete slavery. Their con
dition was improved by the Conquest, because the Normans
admitted them to the oath of fealty. And the improvement
did not stop there : although the peasantry held their plots
only by base tenure and at the lord's will, the lord allowed
in most cases a hereditary possession. In this way out of the
lord's will custom arose, and as custom is the soul or vital
principle of common law, the Courts undertook in the end
to protect the base tenure of the peasantry against the very
lord whose will had created it. Such was the rise of the
copyhold estate of modern times.
Blackstone's work is a compilation, and it would be out
of the question to reduce its statements to anything like
consistency. The rationalistic mode of thought which
has left such a peculiar stamp on the eighteenth century,
appears in all its glory in the laying out of the wise
military polity of feudalism. But scarcely has our author
had time to show the rapid progress of this plan all round
Europe, when he starts on an entirely new tack, suggested
by his wish to introduce a historical justification of Constitu
tional Monarchy. Feudal polity is of late introduction
in England, and appears as a compact between sovereign
and subjects ; original freedom was not destroyed by
this compact, and later infringements of contractual rights
by kings ultimately led to a restoration and development
of ancient liberties. In the parts of the treatise which
concern Private Law the keynote is given throughout by
that very Norman jurisprudence on which such severe
condemnation is passed with regard to Public Law. The
Conquest is thus made to appear alternately as a source of
danger, struggle, and hardship from one point of view, and
as the origin of steady improvement in social condition
from another. In any case the aristocratic cast of English
life is deduced from its most ancient origins, and all the
rights of the lower orders are taken as the results of
good-humoured concession on the part of the lords of the
soil and of quiet encroachment against them.

IO JnfroittC^ion.
Revolution Statements and arguments in Blackstone's style could,
caUUera-" hold water only before that great crisis in history and
tare. The historical literature by which the nineteenth century was
fchoor'" ushered into the worid. The French Revolution, and the
reaction against it, laid open and put to the test the
working of all the chief forces engaged in historical life.
Government and social order, nationality and religion,
economic conditions and modes of thought, were thrown
into the furnace to be consumed or remoulded. Ideas and
institutions which had towered over centuries went down
together, and their fall not only brought home the transitory
character of human arrangements, but also laid bare the
groundwork of society, which however held good in spite
of the convulsions on its surface. The generation that
witnessed these storms was taught to frame its politics and
to understand history in a new fashion^. The disorderly
scepticism of the eighteenth century was transformed by
Niebuhr into a scientific method that paved the way by
criticism to positive results. On the other hand, the
Utopian doctrines of political rationalism were shattered
by Savigny's teaching on the fundamental importance of
tradition and the unconscious organic growth of nations.
In his polemic with Thibaut, the founder of the historical
school of law enters a mighty protest against wanton
reform on the ground of a continuity of institutions not
less real than the continuity of language, and his ' History
of Roman Law during the Middle Ages' demonstrated
that even such a convulsion as the Barbarian Invasion was
not sufficient to sweep away the foundations of law and
social order slowly formed in the past. Eichhorn's
' History of German Public and Private Law ' gave de
tailed expression to an idea which occurs also in some
of Savigny's minor works— to the idea, namely, that the
« ' Es war eine Zeit, in der wir UnerhOrtes und Unglaubliches erlebten,
eine Zeit, welche die Aufmerksamkeit auf viele vergessene und abgelebte
Ordnungen durch deren Zusammensturz hinzog.' Niebuhr in the preface to
the first volume of his Roman history, quoted by Wegele, Geschichte der
deutschen Historiographie, 998.

Jn(tro6ttc(ion.

II

German nations have had to run through their history
with an engrained tendency in their character towards
political dismemberment and social inequality. This
rather crude attempt at generalising out some particular
modern features and sanctioning them by the past is
of historical interest, because it corresponds to the general
problem propounded to history by the Romantic school :
viz. to discover in the various manifestations of the life of
a nation its permanent character and the leading ideas
it is called to embody in history.
The comparative soundness of the English system had
arrayed it from the very beginning on the side of Con
servatism against Revolution, and Burke was the first to
sound the blast of a crusade against subversive theories.
No wonder the historical discoveries on the Continent
found a responsive echo in English scholarship. Allen ^
took up the demonstration that the Royal power in
England had developed from the conceptions of the
Roman Empire. Palgrave^ gave an entirely new con
struction of Anglo-Saxon history, which could not but
exercise a powerful influence on the study of subsequent
periods. His book is certainly the first attempt to treat
the problems of medieval social history on a large scale
and by new methods. It deserves special attention ^-
The author sat down to his work before the Revolution Sir Francis
of 1830, although his two volumes were published in 183a. ^^''^'^'e-
'¦ Enquiry into the Rise and Progress ofthe Royal Prerogative, 1831.
' History of the English Commonwealth, 1832 ; Normandy and England,
1840. ^ I do not give an analysis of Hallam's remarkable chapters on England in
his work on the Middle Ages (first edition, 1818), because they are mostly
concerned ¦with Constitutional history, and the notes on the classes of
Saxon and Anglo-Norman Society are chiefly valuable as discussions of
technical points of law. Hallam's general position in historical literature
must not be underrated ; he is the EngUsh representative of the school
which had Guizot for its most brilliant exponent on the Continent. In
our subject, however, the turning-point in the development of research is
marked by Palgrave, and not by Hallam. Heywood (Dissertation on Ranks
and Classes of Society, 1818) is sound and useful, but cannot rank among
the leaders.

13 jfttftroittcfion.
He shares the convictions of very moderate Liberalism,
declares in favour of the gradual introduction of reforms, and
against any reform not framed as a compromise between
actual claims. Custom and tradition did not exclude
change and development in England, and for this reason
the movement towards progress did not tear that people
from the inheritance of their ancestors, did not disregard
the mighty agency of historical education. In order to
study the relative force of the elements of progress and
conservatism in English history, Palgrave goes behind the
external play of institutions, and tries to connect them
with the internal growth of legal principles. It is a great,
though usual, mistake to begin with political events, to
proceed from them to the study of institutions, and only
quite at the end to take up law. The true sequence is the
inverse one. And in England in particular the Constitu
tion, with all its showy and famous qualities, was formed
under the direct influence of judicial and legal institutions.
In accordance with this leading view Palgrave's work begins
by a disquisition on classes, forms of procedure and judicial
organisation, followed up by an estimate of the effects of
the different Conquests, and ultimately by an exposition
of the history of government. We need not feel bound by
that order, and may start from the conclusion which gives
the key to Palgrave's whole system.
The limited monarchy of England is a result of the
action of two distinct elements, equally necessary for its
composition. It is a manifestation of the monarchical power
descended both in principle and in particular attributes
from the Roman Empire. If this political idea had not
been at work the kingdoms of the barbarians would have
presented only loose aggregates of separate and self-
sufficient polirical bodies ; on the other hand, if this
political idea had been supreme, medieval kings would have
been absolute. The principles of Teutonic and of Roman
polity had to work together, and the result was the medieval
State with an absolute king for its centre, and a great
independence of local parts. The English system differed

Jtt^tro6ttCfion. 13
from the continental in this way, that in England the free
judicial institutions of the localities reacted on the central
power, and surrounded it by constitutional limitations, while
the Continent had to content itself with estates of a very
doubtful standing and future. It is easy to see in this con
nexion how great an importance we must assign to the
constitution of local Courts : the shires, hundreds, and town
ships are not mere administrative divisions, but political
bodies. That the kingdom formed itself on their basis, not
as an absolute but as a parliamentary monarchy, must be
explained in a great measure by the influence of the
Norman Conquest, which led to a closer union of the
isolated parts, and to a concentration of local liberty in
parliament. But (such is Palgrave's view) the importance of Conquests
has been greatly overrated in history. The barbarian
invasion did not effect anything like a sudden or complete
subversion of things ; it left in force and action most of the
factors of the preceding period. The passage from one
rule to another was particularly easy in England, as most
tribes which occupied the island were closely related to each
other. Palgrave holds that the Britons, Anglo-Saxons,
Danes, and Normans all belong to one and the same Teu
tonic race. There were, of course (he allows), Celtic elements
among the Britons, but the greater part consisted of Belgian
Kymrys, whose neighbours and kin are to be found on the
Continent as Saxons and Frisians. The conquest ofthe
island by bands of seafaring Saxons did not lead by any
means to the wholesale destruction and depopulation
which the legendary accounts of the chronicles report.
The language of the Britons has not been preserved, but
then no more has the Celtic language in Gaul. The
Danish and Norman invasions had even less influence on
social condition than the Saxon. It is only the Roman
occupation that succeeded in introducing into the life of
this island important and indestructible traits.
If we look at the results of all these migrations and
ethnographical mixtures, we have first to notice the

14 ^ntvobwcdon.
stratifications of English society according to rank. It is
settled definitely enough in the Saxon period on an
aristocratic basis. In the main, society consists of eorls and
ceorls, noblemen and serfs. The difference does not consist
merely in a diversity of legal value, social influence and
occupation, but also in the fact that the ceorl may economi
cally and legally be dependent on the eorl, and afterwards
on the thane. How did this aristocratic constitution arise?
Social distinctions of this kind may sometimes originate
in the oppression of the weak by the strong, and in
voluntary subjection, but, as a rule, they go back to conquest.
There is every reason to believe that the Anglo-Saxon con
querors, who were very few in number, became the privi
leged class of the new States, and reduced the Britons to
serfdom ; a corroboration of this assumption may be found
in the fact that the services of Celtic and Saxon peasantry
are extremely alike.
It is more difficult to trace the influence of different races
in the agrarian system, of which the township or manor is
the unit. It is by comparing it with the forms in its imme
diate neighbourhood that one gets to understand its origin.
The Roman organisation of husbandry and ownership on
the basis of individualism is too well known to be described.
In marked contrast with it stands the Celtic community,
of which survivals were lingering for a long time in Ireland
and Wales. Here the land is in the ownership of tribal
groups ; rights of individuals and families expand and
collapse according to the requirements and decisions of
the entire tribe; there is no hereditary succession, but
every grown-up clansman has a claim to be endowed with
a plot of land, and as a consequence of this, all land in
separate possession is constantly liable to be divided by
the tribal community. The Anglo-Saxon system is an
intermediate stage between Roman individualism and
Celtic communalism. No wonder that the Saxons, who
at home followed a system closely resembling the Celtic,
modified it when they got acquainted with Roman forms
and entered into their Roman inheritance in Great Britain.

The mixed organisation of the township was the result of
the assimilation.
Such are in the main those conclusions of Palgrave Estimate of
which have a direct bearing on the questions before us. ^^orf^f''* ^
It is easy to perceive that they are permeated by certain
very general historical conceptions. He is greatly impressed
by the ' Vis inertiae ' of social condition, and by the con
tinuity of historical development arising from it. And so
in his work the British population does not disappear with
out leaving any traces of its existence ; the Roman dominion
exercises a most conspicuous influence on important aspects
of later condition — on central power, feudalism, and agra
rian organisation : the most recent of the Conquests — the
Norman invasion — is reduced to a comparatively secondary
share in the framing of society. The close connexion
between Palgrave's ideas and the currents of thought
on the Continent is not less notable in his attempts
to determine the peculiarities of national character as
manifested in unconscious leanings towards certain in
stitutions. The Teutonic system is characterised by a
tendency towards federahsm in politics and an aristocratic
arrangement of society. The one tendency explains the
growth of the Constitution as a concentration of local self-
government, the other leads from the original and funda
mental distinction between a privileged class and a servile
peasantry to the original -organisation of the township
under a lord.
There can be no question as to the remarkable power
displayed in Palgrave's work, or as to the value of his
results. He had an enormous and varied store of erudition
at his command, and the keenest eye for observation. No
wonder that many ofhis theories on particular subjects have
been eagerly taken up and worked out by later scholars.
But apart from such successful solutions of questions, his
whole conception of development was undoubtedly very
novel and fruitful. One of Palgrave's main positions— the
intimate connexion between the external history of the
Constitution and the working of private law in the courts —

i6 ^n(vob\nction.
opened a wholly new perspective for the study of social
history. But naturally enough the first cast turned out
rather rough and distorted. Palgrave is as conspicuous for
his arbitrary and fanciful treatment of his matter, as for
his learning and ingenuity. He does not try to get his
data into order or completeness, and has no notion of the
methods of systematic work. Comparisons of English facts
with all kinds of phenomena in the history of kindred and
distant peoples sometimes give rise to suggestive combina
tions, but, in most cases, out of this medley of incongruous
things they lead only to confusion of thought. In con
sequence of all these drawbacks, Palgrave's attempt only
started the inquiry in most directions, but could not
exhaust it in any.
Romanists The two great elements of Western civilisation — Roman
manists!" tradition and Teutonic tendencies — were more or less
peacefully brought together in the books of Savigny,
Eichhorn, and Palgrave. But in process of time they
diverged into a position of antagonism. Their contrast
not only came out as a result of more attention and
developed study ; it became acute, because in the keen
competition of French and German scholarship, historians,
consciously and unconsciously, took up the standpoint of
national predilection, and followed their bias back into
ancient times. Aug. Thierry, while protesting against the
exaggerations of eighteenth-century systems, considered
the development of European nations almost entirely as a
national struggle culminating in conquest, but underlying
most facts in the history of institutions. He began, for
the sake of method, by tracing the conflict on English
ground where everything resolved itself to his eye into
open or hidden strife between Norman and Saxon \ But
William the Bastard's invasion led him by a circuitous
way to the real object of his interest — to the gradual
rise of Gallo-Roman civilisation against the Teutonic con
quest in France : historical tendencies towards centralised-
monarchy and municipal bourgeoisie were connected by
• Histoire de la conquSte de I'Angleterre par les Normands.

Jtt^vo^ttcfion. 1/
him with the present political condition of France as the
abiding legacy of Gallo-Roman cultured
Men of great power and note, from Raynouard^ and
B. Gu^rard ^ down to Fustel de Coulanges* in our own days,
have followed the same track with more or less violence and
exaggeration. They are all at one in their animosity
towards Teutonic influence in the past, all at one in les
sening its effects, and in trying to collect the scattered
traces of Romanism in principle and application. The
Germans did not submit meekly to the onslaught, but
went as far as the Romanists on the other side. Lobell^,
Waitz®, and Roth'^ — to speak only of the heads of the
schools-have held forth about the mighty part which the
Teutons have played in Europe ; they have enhanced the
beneficial value of Germanic principles, and tried to show
that there is no reason for laying to their account certain
dark facts in the history of Europe. The Germanist
school had to fight its way not only against Romanism,
but against divers tenets of the Romantic school as repre
sented by Savigny and Eichhorn, of which Romanists
had availed themselves. The whole doctrine was to be
reconsidered in the light of two fundamental assump
tions. The foundations of social life were sought not in
aristocracy, but in the common freedom of the majority
of the people : the German middle class, the ' Biirgers,'
who form the strength of contemporary Germany, looked
to the past history of their race as vouching for their
liberty; the destinies of that particular class became the
test of social development. Then again the disruptive
tendency of German national character was stoutly denied.

* Histoire du tiers 6tai.
' Histoire du droit municipal.
' Prolfigomenes au polyptyque de I'abbd Irminon.
* Histoire des institutions- de la France ; Recherches sur quelques pro-
blemes d'histoire.
¦'' Gregor von Tours und seine Zeit.
' Deutsche Verfassungsgeschichte.
¦' Geschichte des Beneficialwesens, 1856; FeudaUtat und Unterthanen-
verband, 1863.
VOL. I. C

1 8 3w^lf0^tt«^i«^
and all the historical instances of disruption were demon
strated to be quite independent of any leaning of the race.
In the great fermentation of thought which led indirectly
to the unification of Germany, the best men in the country
refused to believe that Western Europe had fallen to pieces
into feudalism because Teutonic development is doomed
to strife and helplessness by deeply engrained traits of
character^- German scholarship found a most powerful
ally in this period of its history in the literature of kindred
England : German and English investigators stood side
by side in the same ranks. Kemble, K. Maurer, Freeman,
Stubbs, and Gneist form the goodly array of the Germanist
School on English soil.
Kemble. Kemble's position is, strictly speaking, an intermediate
one : in some respects he is very near to Eichhorn and
Grimm ; although his chief work was published in 1849,
he was not acquainted with Waltz's first books. But
Kemble is mostly in touch with those parts of Eichhorn's
theory which could be accepted by later Germanists ; other
important tenets of the Romantic School are left in the
shade or rejected, and as a whole Kemble's teaching is
essentially Germanistic. Kemble's 'Saxons in England'
takes its peculiar shape and marks an epoch in English
historical literature, mainly because it presents the first
attempt to utilise the enormous material of Saxon Charters,
in the collection of which Kemble has done such invalu
able work. With this copious and exact, but very onesided,
material at his disposal, our author takes little notice of
current tales about the invasion of Great Britain by Angles
and Saxons. Such tales may be interesting from a mytho
logical or literary point of view, but the historian cannot
accept them as evidence. At the same time one cannot but
wish to try and get certain knowledge of an historical fact,
which, as far as the history of England is concerned,
appears as the first manifestation of the Teutonic race in
its stupendous greatness. Luckily enough we have some
^ Roth is very strong on this point.

Jtt^troittcftott. 19
rrieans to judge of the invasion in the names of localities
and groups of population. Read in this light the history
of Conquest appears very gradual and ancient. It began
long before the recorded settlements, and while Britain
was still under Roman sway. The struggle with the Celts
was a comparatively easy one ; the native population was
by no means destroyed, but remained in large numbers in
the lower orders of society. Notwithstanding such remnants,
the history of the Anglo-Saxon period is entirely Teutonic
in its aspect, and presents only one instance of the general
process by which the provinces of the Empire were modi
fied by conquerors of Teutonic race.
The root of the whole social system is to be found in the
Mark, which is a division of the territory held jointly by
a certain number of freemen for the purposes of cultivation,
mutual help and defence. The community began as a
kinship or tribe, but even when the original blood ties
were lost sight of and modified by the influx of heteroge
neous elements, the community remained self-sufficient and
isolated. The whole fabric of society rested on property in
land : as its political divisions were based on the possession
of common lands, even so the rank of an individual de
pended entirely on his holding. The Teutonic world had
no idea of a citizen severed from the soil. The curious
fact that the normal holding, the hide, was equal all over
England (334 acres) can be explained only by its origin ;
it came full-formed from Germany and remained unchanged
in spite of all diversities of geographical and economical
conditions. The transformation of medieval society is, for Kemble,
intimately connected with the forms of ownership in land.
The scanty population of ancient times had divided only a
very small part of the country into separate holdings. The
rest remained in the hands of the people to supply the wants
of coming generations. The great turn towards feudalism
was given by the fact that this reserve-fund lapsed into the
hands of a few magnates : the mass of free people being
deprived of its natural sphere of expansion was forced to.
C a

30 3tv(t^o5uc^iott,
seek its subsistence at the hands of private lords (loaf-
givers). From the point of view of personal status the
same process appears in the decrease of freedom among
the people" and jn the increase of the so-called GesiiS,
According to Teutonic principles a man is free only if he
has land to feed upon, strength to work, and arms to defend
himself The landless man is unfree ; and so is the Gesi'S-
cundman, the follower, however strong and wealthy he may
be through his chief's grace. The contrast between the
free ceorls tilling their own land and the band of military
followers, who are always considered as personally depen
dent — this contrast is a marked one. From the first this
military following had played an important part in German
history. Most raids and invasions had been its work,
and sometimes whole tribes were attracted into its organ
isation, but during the first period of Saxon history the
free people were sufficiently strong to hold down the power
of military chiefs within certain bounds. Not so in later
development. With the growth of population, of inequali
ties, of social competition, the relations of dependency are
seen constantly gaining on the field of freedom. The
spread of commendation leads not only to a change in the
distribution of ranks, but to a dismemberment of political
power, to all kinds of franchises and private encroachments
on the State.
I may be excused for marshalling all these well-known
points before the public by the consideration that they
must serve to show how intimately these views are con
nected with the general principles of a great school.
The stress laid by Kemble on property in land ought to
be noticed especially : land gets to be the basis of all
political and social condition. This is going much fur
ther than Palgrave ever went ; though not further than
Eichhorn. What actually severs Kemble from the Ro-,
mantics is his estimate of the free element in the people.
He does not try to picture a kind of political Arcadia in
Saxon England, but there is no more talk about the rightless
condition of the ceoris or the predominance of aristocracy^

The' Teutonic race towers above everything. Although the
existence of Celts after the Conquests is admitted, neither
Celtic nor Roman elements appear as exercising any in
fluence in the course of history. Everything takes place
as if Germanic communities had been living and growing'
on soil that had never before been appropriated. Curiously
enough the weakest point of Kemble's doctrine seems to
lie in its very centre — in his theory of social groups. One
is often reminded of Grimm by his account of the Mark,
and it was an achievement to call attention to such a
community as distinct from the tribal group, but the poli
tical, legal, and economical description of the Mark is very
vague. As to the reasoning about gilds, tithings, and
hundreds, it is based on a constant confusion of widely
different subjects.
Generally speaking, it is not for a lawyer's acuteness and
precision that one has to look in Kemble's book : important
distinctions very often get blurred in his exposition, and
though constantly protesting against abstract theories and
suppositions not based on fact, he indulges in them a
great deal himself Still Kemble's work was very re
markable : his extensive, if not very critical study of the i
charters opened his eyes to the first-rate importance of the '
law of real property in the course of medieval history : this
was a great step in advance of Palgrave, who had recog
nised law as the background of history, but whose attention
had been directed almost exclusively to the formal side —
to judicial institutions. And Kemble actually succeeded
in bringing forward some of the questions which were to
remain for a long time the main points of debate among 1
historians. The development of the school was evidently to proceed k. Maurer.
in the direction of greater accuracy and improved methods.
Great service has been done in this respect by Konrad
Maurer^. He is perhaps sometimes inclined to magnify
' Ueber angelsachsische Rechtsverhaltnisse, in the Munich Kritische
Ueberschau, i. sqq. (1853).

22 Jn^tro6ucfiott.
his own independence and dissent from Kemble's opinions;
but he has undoubtedly contributed to strengthen and
clear up some of Kemble's views, and has gone further
than his predecessor on important subjects. He accepts
in the main Kemble's doctrines as to the Mark, the
allotment of land, the opposition of folkland and book-
land, and expounds them with greater fulness and better
insight into the evidence. On the other hand he goes
his own way as to the GesiiSs (Gefolgschaft), and the
part played by large estates in the political process.
Maurer reduces the importance of the former and lays
more stress on the latter than Kemble \ Altogether the
German scholar's investigations have been of great moment,
and this not only for methodical reasons, but also because
they lead to a complete emancipation of the school from
Eichhorn's influence.
Freeman. As to the Conquests, Germanist views have been for
mulated with great authority by Freeman. A comparison
of the course of development in Romance countries with
the history of England, and a careful study of that evidence
of the chronicles which Kemble disregarded, has led the
historian ofthe Norman Conquest to the conclusion, that the
Teutonic invaders actually rooted out most of the Roman
ised Celtic population of English Britain, and reduced it to
utter insignificance in those western counties where they did
not destroy it. It is the only inference that can be drawn
from the temporary disappearance of Christianity, from
the all but complete absence of Celtic and Latin words
in the English tongue, from the immunity of English legal
and social life from Roman influence. The Teutonic bias
which was given to the history of the island by the
Conquest of Angles and Saxons has not been altered by
the Conquest of the Normans. The foreign colouring
imparted to the language is no testimony of any radical
change in the internal structure of the people : it remained
on the surface, and the history of the island remained
• K. Maurer is very near Waitz in this respect.

Jn(to5uc(iott, 23
English, that is, Teutonic. Even feudalism, which appears
in its full shape after William the Bastard's invasion, had
been prepared in its component parts by the Saxon period.
In working out particulars Freeman had to reckon
largely with Kemble's work and to strike the balance
between the conflicting and onesided theories of Thierry
and Palgrave. Questions of legal and social research concern
him only so far as they illustrate the problem of the struggle
and fusion of national civilisations. His material is chiefly
drawn from chronicles, and the history of external facts of
war, government, and legislation comes naturally to the fore.
But all the numberless details tend towards one end : they]
illustrate the Teutonic Eispect of English culture, and assign ;
it a definite place in the historical system of Europe.
Stubbs' ' Constitutional History,' embracing as it does Stubbs.
the whole of the Middle Ages, is not designed to trace
out some one idea for the sake of its being new or to take
up questions which had remained unheeded by earlier
scholars. Solid learning, critical caution and accuracy are
the great requirements of such an undertaking, and every
one who has had anything to do with the Bishop of
Oxford's publications knows to what extent his work
is distinguished by these qualities. If one may speak of
a main idea in such a book as the Constitutional History
of a people, Stubbs' main idea seems to be, that the
English Constitution is the result of administrative concen-i
tration in the age of the Normans of local self-goverment j
formed in the age of the Saxons. This conclusion is fore
shadowed in Palgrave's work, but what appears there as a
mere hypothesis and in confusion with all kinds of heterg-
geneous elements, comes out in the later work with the
overwhelming force of careful and impartial induction.
Stubbs' point of view is a Germanist one. The book
begins with an estimate of Teutonic influence in the
different countries of Europe, and England is taken in one
sense as the most perfect manifestation of the Teutonic
historical tendency. The influx of Frenchmen and French
ideas under William the Conqueror and after him had.

24 3nftro5ttCfioii»
important effects in rousing national energy, contributing
to national unification, settling the forms of administration
and justice, but at bottom there remained the Teutonic
character of the nation. The 'Constitutional History'
approaches the question of the village community,
but its object is strictly limited to the bearing of the
problem on general history and to the testimony of
direct authority. It starts from the community in land as
described by Caesar and Tacitus, and notices that Saxori
times present only a few scattered references to com
munal ownership. Most of the arable land was held
separately, but the woods, meadow, and pasture still
remained in the ownership of village groups. The town
ship with its rights and duties as to police, justice, and
husbandry was modified but not destroyed by feudalism.
The change from personal relations to territorial, and
from th^ freedom of the masses to their dependency, is
already very noticeable in the Saxon period. The Norman
epoch completed the process by substituting proprietary
rights in the place of personal subordination and political
subjection. Still even after conquest and legal theory had
been over the ground, the compact self-government of the
township is easily discernible under the crust of the mano
rial system, and the condition of medieval villains presents
many traces of original freedom.
Gneist. Gneist's work is somewhat different in colouring and
closely connected with a definite political theory. Tocque-*
ville in France has dofie most to draw attention to th6
vital importance of local self-government in the develop
ment of liberal institutions ; and Stubbs' history goes hi
to demonstrate Tocqueville's general view by a masterly
statement as to the origins of English institutions. In
Gneist's hands the doctrine of decentralisation assumes
a particular shape by the fact that it is constructed on a
social foundation ; the German thinker has been trying all
along to show that the English influence is not one of
self-government only, but of aristocratical self-government.
The part played by the gentry in local and central affairs

Jnfvo6ttcfiort. 25
is the great point of historical interest in Gneist's eyes,
Even in the Saxon period he lays stress chiefly on the
early rise of great property, and the great importance of
' Hlafords ' in social organisation. He pays no attention
to the village community, and chiefly cares for the land
lord. But still even Gneist admits the original personal
freedom of the great mass of the people, and his analysis
of the English condition is based on the assumption, that
it represents one variation of Teutonic development : this
gives Gneist a place among the Germanists, although his
Views on particular subjects differ from those of othei"
scholars of the same school ^.
Its chief representatives have acquired such a celebrity The Mark
that it is hardly necessary to insist again, that excellent ^y^'s™-
work has been done by them for the study of the past;
But the direction of their work has been rather one^
sided ; it was undertaken either from the standpoint of
political institutions or from that of general^culture and
external growth ; the facts of agriculture, of the evolution
of classes, of legal organisation were touched upon duly as
subsidiary to the main objects of general history. Ahd.
yet, even from the middle of the century, the attention
of Europe begins to turn towards those very facts. I^he
' masses ' come up with their claims behind the ' classes,'
the social question emerges in theory and in practice, in
reform and revolution ; Liberals and Conservatives have to
teckon with the fact that the great majority of the people
are more excited, and more likely to be moved by the
problems of work and wages than by problems of political
influence. The everlasting, ever-human struggle for power
gets to be considered chiefly in the light of the distribu^
tion of wealth ; the distribution of society into classes and
conditions appears as the connecting link between the
economical process and the political process. This great
change in the aspect of modern life could not but react
powerfully on the aspect of historical literature. G. F. von
1 See especially his Englische Verfassungsgeschichte.

26 Jttftobttcfion.
Maurer and Hanssen stand out as the main initiators of
the new movement in our studies. The many volumes
devoted by G. F. Maurer ^ to the village and the town of
Germany are planned on a basis entirely different from
that of his predecessors. Instead of proceeding from the
whole to the parts, and of using social facts merely as a
background to political history, he concentrates everything
round the analysis of the Mark, as the elementary organisa
tion for purposes of husbandry and ownership. The Mark
is thus taken up not in the vague sense and manner in
which it was treated by Kemble and his followers ; it is
described and explained on the strength of copious, though
not very well sifted, evidence. On the other hand, Hanssen's
masterly essays ^ on agrarian questions, and especially on
the field-systems, gave an example of the way in which
work was to be done as to facts of husbandry proper.
Nasse. Nasse's pamphlet on the village community* may be
considered as the first application of the new methods
and new results to English history. The importance of
his little volume cannot easily be overrated : all subsequent
work has had to start from its conclusions.
Nasse's picture of the ancient English agricultural
system, though drawn from scanty sources, is a very
definite one. Most of the land is enclosed only during
the latter part of the year, and during the rest of the
year remains in the hands of the community. Tem
porary enclosures rise upon the ploughed field while the
crop is growing ; their object, however, is not to divide the
land between neighbours but to protect the crop against
pasturing animals ; the strips of the several members of
the township lie intermixed, and their cultivation is
not left to the views and interests of the owners, but
' Einleitung in die Geschichte der Hof-, Dorf-, Mark- und Stadtever-
fassung in Deutschland, t vol. ; Geschichte der FrohnhOfe, 4 vol. ; Ge
schichte der Doriverfassung, i vol. ; Geschichte der Markenverfassung, i vol. ;
Geschichte der Stadteverfassung, 4 vol.
" Collected in a volumes of Agrarhistorische Untersuchungen.
8 Zur Geschichte der mittelalterlichen Feldgemeinschaft in England, 1869.

Jn^tro&ttCfion. 27
settled by the community according to a general plan.
The meadows are also divided into strips, but these
change hands in a certain rotation determined by lot or
otherwise. The pasture ground remains in the possession
of the whole community. The notion of private property,
therefore, can be applied in this system only to the houses
and closes immediately adjoining them.
Then the feudal epoch divides the country into manors,
a form which originated at the end of the Saxon period
and spread everywhere in Norman times. The soil of the
manor consists of demesne lands and tributary lands.
These two classes of lands do not quite correspond to the
distinction between land cultivated by the lord himself
and soil held of him by dependants ; there may be lease
holders on the demesne, but there the lord is always free
to change the mode of cultivation and occupation, while he
has no right to alter the arrangements on the tributary
portion. This last is divided between free socmen holding
on certain conditions, villains and cottagers. The villains
occupy equal holdings ; their legal condition is a very low
one, although they are clearly distinguished from slaves,
and belong more to the soil than to the lord. The cot
tagers have homesteads and crofts, but no holdings in the
common fields ; the whole group presents the material
from which, in process of time, the agricultural labourers
have been developed.
The common system of husbandry manifests itself in
many ways : the small holders club together for ploughing ;
four virgates or yardlands have to co-operate in order to
start an eight-oxen plough. The services are often laid
upon the whole village and not on separate householders ;
on the other hand the village, as a whole, enters into agree
ment with the lord about leases or commutation of services
for money.
Each holding is formed of strips which lie intermixed
with the component parts of other holdings in different
fields, and this fact is intimately connected with the prin
ciple of joint ownership. The whole system begins to

28 j(n^tro&ttC^ion»
break up in the thirteenth century, much earlier than irt
France or Germany. As soon as services get commuted
for money rents, it becomes impossible to retain the labour-"
ing people in serfdom. Hired labourers and farmers take
the place of villains, and the villain's holding is turned into
a copyhold and protected by law. Although the passage
to modern forms begins thus early, traces of the original
communalism may be found everywhere, even in the
eighteenth century.
Maine. Nasse's pamphlet is based on a careful study of authori
ties, and despite its shortness must be treated as a work of
scientific research. But if all subsequent workers have to
reckon with it in settling particular questions, general
conceptions have been more widely influenced by Sir
Henry Maine's lectures, which did not aim at research,
and had in view the broad aspects of the subject. Their
peculiar method is well known to be that of com
paring facts from very different environments — from the
Teutonic, the Celtic, the Hindu world ; Maine tries to
sketch a general process where other people only see
particular connexions and special reasons. The chapters
which fall within the line of our inquiry are based chiefl/
on a comparison between Western Europe and India.
The agrarian organisation of many parts of India
presents at this very day, in full work and in all stageS
of growth and decay, the village community of which
some traces are still scattered in the records of Europe.
There and here the process is in the main the same, the
passage from collective ownership to individualism is in-
fluenced by the same great forces, notwithstanding all the
differences of time and place. The original form of
agrarian arrangement is due to the settlement of a group
of free men, which surrenders to its individual members
the use of arable land, meadows, pasture and wood, but
retains the ownership and the power to control and
modify the rights of using the common land. There can
be no doubt that the legal theory, which sees in the
modern rights of commoners mere encroachments upon

Jn(tro&uc(iott. 29
the lord, carries feudal notions back into too early a
period, The real question as conceived by Maine is this — By
what means was the free village community turned into
the manor of the lord ? The petty struggles between
townships must have led to the subjugation of some
groups by others ; in each particular village the head
man had the means to use his authority in order to im
prove his material position ; and when a family contrived
to retain an office in the hands of its members this at
once gave matters an aristocratical turn. In Western
Europe external causes had to account for a great deal
in the gradual rise of territorial lordship. When the bar
barian invaders came into contact with Roman civilisa
tion and took possession of the provincial soil, they found
private ownership and great property in full development,
and naturally fell under the influence of these accomplished
facts ; their village community was broken up and trans
formed gradually into the manorial system ^.
Maine traces economic history from an originally free
community ; Nasse takes the existence of such a com
munity for granted. The statements of one are too
general, however, and sometimes too hypothetical, the
mother has in view husbandry proper rather than the legal
development of social classes, Maurer's tenets, to which
both go back, present a very coherent system in which all
parts hold well together ; but each part taken separately
is not very well grounded on fact. The one-sided prefer
ence given to one element does not allow other important
elements to appear ; the wish to find in the authorities
1 I do not mention some well-known books treating of medieval husbandry
and social history, because I am immediately concerned only with those
works which discuss the formation of the medieval system. Thorold Rogers,
History of Agriculture and Prices, and Six Centuries of Work and Wages,
begins vsrith the close of. the thirteenth century, and the passage from
medieval organisation to modern times. Ochenkovsky, Die ¦wirthschaftliche
Entwicklung Englands am Ende des Mittelalters, aud Kovalevsky, England's
Social Organisation at the close of the Middle Ages (Russian), start on
their inquiry from even a later period.

30 3tt(tro5ttCfton.
suitable arguments for a favourite thesis leads to a confusion
of materials derived from different epochs. These defects
naturally called for protest and rectification ; but the
reaction against Maurer's teaching has gone so far and
comes from such different quarters, that one has to look
for its explanation beyond the range of historical research.
Reaction- Late years have witnessed everywhere in Europe a
men™°^^" movement of thought which would have been called
reactionary some twenty years ago ^. Some people are
becoming very sceptical as to principles which were held
sacred by preceding generations ; at the same time ele
ments likely to be slighted formerly are coming to the front
in great strength nowadays. There have been liberals and
conservatives at all times, but the direction of the Euro
pean mind, saving the reaction against the French Revolu
tion and Napoleon, has been steadily favourable to the
liberal tendency. For two centuries the greatest thinkers
and the course of general opinion have been striving for
liberty in different ways, for the emancipation of indivi
duals, and the self-government of communities, and the
rights of masses. This liberal creed has been, on the
whole, an eminently idealist one, assuming the easy per
fectibility of human nature, the sound common sense of
the many, the regulating influence of consciousness on
instinct, the immense value of high political aspirations for
the regeneration of mankind. In every single attempt at
realising its high-flying hopes the brutal side of human na
ture has made itself felt very effectually, and has become all
the more conspicuous just by reason of the ironical contrast
between aims and means. But the movement as a whole
• Is it necessary to say that I am speaking of general currents of thought
and not of the position of a man at the polling booth ? An author may
be personally a liberal and still his work may connect itself with a stream
of opinion which is not in favour of liberalism. Again, one and the
same man may faU in with dififerent movements in different parts of his
career. Actual life throws a peculiar light on the past : certain questions are
placed prominently in ¦view and certain others are thrown into the shade by
it, so that the individual worker has to find his path ¦within relatively narrow
hmits.

Jn^ro^ttcfiott. 31
was certainly an idealist one, not only in the eighteenth
but even in the nineteenth century, and the necessary re
pressive tendency appeared in close alliance with officialism,
with unthinking tradition, and with the egotism of classes
and individuals. Many events have contributed of late
years to raise a current of independent thought which
has gone far in criticising and stemming back liberal
doctrines, if not in suppressing them. The brilliant
achievements of historical monarchy in Germany, the
ridiculous misery to which France has been reduced
by conceited and impotent politicians, the excesses of
terrorist nihilism in Russia, the growing sense of a
coming struggle on questions of radical reform — all
these facts have worked together to generate a feeling
which is far from being propitious to liberal doctrines.
Socialism itself has been contributing to it directly by laying
an emphatic stress on the conditions of material existence,
and treating political life merely as subordinate to economic
aims. In England the repressive tendency has been felt
less than on the Continent, but even here some of the
foremost men in the country are beginning, in consequence
of social well-known events, to ask themselves : Whither
are we drifting? The book which best illustrates the new
direction of thought is probably Taine's ' Origines de la
France Contemporaine.' It is highly characteristic, both in
its literary connexion with the profound and melancholy
liberalism of Tocqueville, and in its almost savage on
slaught on revolutionary legend and doctrine.
In the field of historical research the fermentation of
political thought of which I have been speaking has been
powerfully seconded by a growing distrust among scholars
for preconceived theories, and by the wish to reconsider
solutions which had been too easily taken for granted. The
combined action of these forces has been curiously expe
rienced in the particular subject of our study. The Ger
manist school had held very high the principle of indi
vidual liberty, had tried to connect it with the Teutonic
element in history, had explained its working in the society

3:? 3n(ro5ttC^ion.
described by Tacitus, and had regretfully followed its decay
in later times. For the representatives of the New School
this 'original Teutonic freedom' has entirely lost its sig
nificance, and they regard the process of social development
as starting with the domination of the few and the serfdom
of the many. The votaries of the free village community
have been studying with interest epochs and ethnogra
phical variations unacquainted with the economic individu
alism of modern Europe, they have been attentive in
tracing out even the secondary details of the agrarian as
sociations which have directed the husbandry of so many
centuries, but the New School subordinates communal
practice to private property and connects it with serfdom.
We may already notice the new tendency in Inama-
Sternegg's Wirthschaftsgeschichte^; he enters the lists
against Maurer, denies that the Mark ever had anything
to do with political work, reduces its influence on hus
bandry, and enhances that of great property. The most
remarkable of French medievalists — Fustel de Coulanges
— has been fighting all along against the Teutonic village
community, and for an early development of private pro
perty in connexion with Roman influence. English scho
larship has to reckon with similar views in Seebohm's
well-known work.
Seebohm. Let US recall to mind the chief points of his theory.
The village community of medieval England is founded
on the equality of the holdings in the open fields of the
village. The normal holding of a peasant family is not
only equal in each separate village, but it is substantially
the same all over England. Variations there are, but in most
cases by far it consists of the virgate of thirty acres, which
makes the fourth part of the hide of a hundred and twenty
acres, because the peasant holder owns only the fourth part
ofthe ploughteam of eight oxen corresponding to the hide.
The holders of virgates or yardlands are not the only
people in the village; their neighbours may have more
' The last great German work on our questions, Lamprecht, Deutsches
Wirthschaftsleben im Mittelalter, is nearer Maurer than Sternegg.

Jn^iroiuc^iott. 33
or less land, but there are not many classes as a rule, all
the people in the same class are equalised, and the virgate
remains the chief manifestation of the system. It is plain
that such equality could be maintained only on the
principle that each plot was a unit which was neither to be
divided nor thrown together with other plots. Why did
such a system spread all over Europe ? It could not de
velop out of a free village community, as has been
commonly supposed, because the Germanic law regulating
free land does not prevent its being divided ; indeed, where
this law applies, holdings get broken up into irregular
plots. If the system does not form itself out of Germanic
elements, it must come from Roman influence ; one has
only the choice between the two as to facts which prevail
everywhere in Western Europe. Indeed, the Roman villa
presents all the chief features of the medieval manor. The
lord's demesne acted as a centre, round which coloni
clustered — cultivators who did not divide their tenancies
because they did not own them. The Roman system was
the more readily taken up by the Germans, as their own
husbandry, described by Tacitus, had kindred elements to
show — the condition of their slaves, for instance, was very
like that of Roman coloni. It must be added, that we
may trace in Roman authorities not only the organisation
of the holdings, but such features as the three-field parti
tion of the arable and the intermixed position of the strips
belonging to a single holding.
The importance of these observations taken as a whole
becomes especially apparent, if we compare medieval
England with Wales or Ireland, with countries settled by
the Celts on the principle of the tribal community : no
fixed holdings there ; it is not the population that has to
conform itself to fixed divisions of land, but the divisions
of land have to change according to the movement of the
population. Such usage was prevalent in Germany itself
for a time, and would have been prevalent there as long
as in Celtic countries, if the Germans had not come under
Roman influence. And so the continuous development
VOL. I. D

34 3i^ftro5ttC^ioit.
of society in England starts from the position of Roman
provincial soil.
The Saxon invasion did not destroy what it found in
the island. Roman villas and their labourers passed from
one lord to the other — that is all. The ceorls of Saxon
times are the direct descendants of Roman slaves and
coloni, some of them personally free, but all in agrarian
subjection. Indeed, social development is a movement from
serfdom to freedom, and the village community of its early
stages is connected not with freedom, but with serfdom,
Seebohm's results have a marked resemblance to some
of the views held by the eighteenth-century lawyers, and
also to those held by Palgrave and by Coote, but his theory
is nevertheless original, both in the connexion of the parts
with the whole, and in its arguments : he knows how to
place in a new light evidence which has been known and
discussed for a long time, and for this reason his work
will be suggestive reading even to those who do not agree
with the results. The chief strength of his work lies in the
chapters devoted to husbandry ; but if one accepts his con
clusions, what is to be done with the social part of the
question ? Both sides, the economic and the social, are indis
solubly allied, and at the same time the extreme consequences
drawn from them give the lie direct to everything that has
hitherto been taken for granted and accepted as proved
as to this period. Can it really be true that the great
bulk of free men was originally in territorial subjection, or
rather that there never was such a thing as a great number
of free men of German blood, and that the German con
quest introduced only a cluster of privileged people which
merged into the habits and rights of Roman possessors?
If this be not true and English history testifies on every
point to a deeper influence exercised by the German
conquerors, does not the collapse of the social conclusion
call in question the economical premisses ? Does not a
logical development of Seebohm's views lead to con
clusions that we cannot accept ? These are all perplexing
questions, but one thing is certain ; this last review of the

3n(tfo6uc^ion. 35
subject has been powerful enough to necessitate a recon
sideration of all its chief points.
Happily, this does not mean that former work has been Results at-
lost, I have not been trying the patience of my readers conflict ^
by a repetition of well-known views without some cogent between successive
reasons. The subject is far too wide and important to theories.
admit of a brilliantly unexpected solution by one mind or
even one generation of workers. A superficial observer
may be so much struck by the variations and contradictions,
that he will fail to realise the intimate dependence of every
new investigator on his predecessors. ' The subjective side
of history,' as the Germans would say, has been noticed
before now and the taunt has been administered with great
force: 'Was Ihr den Geist der Zeiten heisst, das ist im
Grund der Herren eigener Geist, in dem die Zeiten sich
bespiegeln.' Those who do not care to fall a prey to
Faust's scepticism, will easily perceive that individual pecu
liarities and political or national pretensions will not account
for the whole ofthe process. Their action is powerful indeed :
the wish to put one's own stamp on a theory and the
reaction of present life on the past are mighty incitements
to work. But new schools do not rise in order to pull
down everything' that has been raised by former schools,
new theories always absorb old notions both in treatment
of details and in the construction of the whole. We may
try, as conclusion of our review of historical literature, to
notice the permanent gains of consecutive generations in
the forward movement of our studies. Tbe progress
will strike us, not only if we compare the state of learning
at both ends of the development, but even if we take up
the links of the chain one by one.
The greatest scholars of the time before the French
Revolution failed in two important respects : they were not
sufficiently aware of the differences between epochs ; they
were too ready -with explanations drawn from conscious
plans and arrangements. The shock of Revolution and
Reaction taught people to look deeper for the laws of the
social and political organism. The material for study was
D a

36 Jnfvo5ttciiott.
not exactly enlarged, but instead of being thrown together
without discrimination, it was sifted and tried. Preliminary
criticism came in as an improvement in method and led
at once to important results, Speaking broadly, the field
of conscious change was narrowed, the field of organic
development and unconscious tradition widened. On this
basis Savigny's school demonstrated the influence of
¦Roman civilisation in the Middle Ages, started the inquiry
as to national characteristics, and shifted the attention of
historians from the play of events on the surface to the
great moral and intellectual currents which direct the
stream. Palgrave's book bears the mark of all these
ideas, and it may be noticed especially that his chief
effort was to give a proper background to English history
by throwing light on the abiding institutions of the
law. None of these achievements was lost by the next genera
tion of workers. But it had to start from a new basis, and
hac} a good deal to add and to correct. Modern life was
busj' with two problems after the collapse of reaction had
given way to new aspirations : Europe was trying to strike
a due balance between order and liberty in the constitu
tional system ; nationalities that had been rent by casual
and artificial influences were struggling for independence
and unity. The Germanist School arose to show the
extent to which modern constitutional ideas were con
nected with medieval facts, and the share that the German
element has had in the development of institutions and
classes. As to material, Kemble opened a new field
by the publication of the Saxon charters, and the gain
was felt at once in the turn given towards the investigation
of private law, which took the place of Palgrave's vague
leaning towards legal history. The methods of careful
and cautious inquiry as to particular facts took shape in
the hands of K. Maurer and Stubbs, and the school really
succeeded, it seems to me, in establishing the characteris
tically Germanic general aspect of English history, a result
which does not exclude Roman influence, but has to be

3nfro6uct{ott. 37
reckbned with in all attempts to estimate definitely its
bearing and strength.
The rise of the social question about the middle of our
century had, as its necessary consequence, to impress upon-
the mind of intelligent people the vast importance of social
conditions, of those primary conditions of husbandry, dis
tribution of wealth and distribution of classes, which ever,
as it were, loom up behind the pageant of political institu
tions and parties. Nasse follows up the thread of in
vestigation from the study of private law towards the
study of economic conditions. G. F. v. Maurer and Maine
enlarge it in scope, material, and means by their com
parative inquiry, taking into view, first, all varieties of the
Teutonic race, and then the development of other ethno
graphical branches. The village community comes out of
the inquiry as the constitutive cell of society during an
age of the world, quite as characteristic of medieval struc
ture, as the town community or ' civitas ' was of ancient;
polity. The consciousness that political and scientific construc
tion has been rather hasty in its work, that it has often
been based upon doctrines instead of building on the firm
foundation of facts — the widely spread perception of these
defects has been of late inciting statesmen and thinkers to
put to use some of those very elements which were formerly
ignored or rejected. The manorial School — if I may be
allowed to use this expression — has brought forward the
influence of great landed estates against the democratical
conception ofthe village community.. The work spent upon
this last phenomenon is by no means undone; on the
contrary, it was received in most of its parts. But new
material was found in the manorial documents of the later
middle ages, the method of investigation ' from the known
to the unknown ' was used both openly and unconsciously,
comparative inquiry was handled for more definite, even
if more limited purposes. Great results cannot be con
tested : to name one — the organising force of aristocratic
property has been acknowledged and has come to its rights.!

38 ^ntvoHciion*
But the new impetus given to research has caused its
originators to overleap themselves, as it were. They have
occupied so exclusively the point of view whence the
manor of the later middle ages is visible that they have
disregarded the evidence which conies from other quarters
instead of finding an explanation which will satisfy all
the facts. The investigation 'from the known to the
unknown ' has its definite danger, against which one has
to be constantly on one's guard : its obvious danger is to
destroy perspective and ignore development by carrying
into the ' unknown ' of early times that which is known of
later conditions. Altogether the attempt to overthrow some
of the established results of investigation as to race and
classes does not seem to be a happy one. And so, although
great work has been done in our field of study, it cannot be
said that it has been brought to a close — ' bis an die Sterne
weit.' Many things remain to be done, and some problems
are especially pressing. The legal and the economical side
of the inquiry must be worked up to the same level ;
manorial documents must be examined systematically, if
not exhaustively, and their material made to fit with the
evidence established from other sources of information ; the
whole field has to be gone over with an eye for proof and
not for doctrine. A review of the work already done, and
of the names of scholars engaged in it, is certainly an
incitement to modesty for every new reaper in the field, but
it is also a source of hope. It shows that schools and
leading scholars displace one another more under the
influence of general currents of thought than of individual
talent. The ferment towards the formation of groups
comes from the outside, from the modern life whicji sur
rounds research, forms the scholar, suggests solutioiB.
Moreover, theoretical development has a continuity of its
own ; all the strength of this manifold life cannot break or
turn back its course, but is reduced to drive it forward in
ever new bends and curves. The present time is especially
propitious to our study: one feels, as it were, that it is
ripening to far-reaching conclusions. So much has been

Jnftro^ucfion, 39
done already for this field of enquiry in the different
countries of Europe, that the hope to see in our age
a general treatment of the social origins of Western
Europe will not seem an extravagant one. And such a
treatment must form as it were the corner-stone of any
attempt to trace the law of development of human society.
It is in this consciousness of being borne by a mighty
general current, that the single scholar may gather hope
that may buoy him against the insignificance of his forces
and the drudgery of his work.

FIRST ESSAY.
THE PEASANTRY OF THE FEUDAL AGE.

CHAPTER I.
THE LEGAL ASPECT OF VILLAINAGE. GENERAL
CONCEPTIONS.
It has become a commonplace to oppose medieval 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 (i)
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.

44

J5e0ae SL0\)Ut of (ViUaimQt, [essay i.

Importance of
legal treat
ment.

Defini
tion and
termin ology of
villainageat Com
mon Law.

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. Itwould 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 abstrac
tions, and firm enough not to surrender to mere technicali
ties ^. In the treatment bf 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 sur
rounding 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_lQrds_are^owners
not only of the chattels but of the bodies of their ascrip-
ticii, they may transfer them wherever they please, ' and
sell or otherwise alienate thern if they like ^.' Glanville atid
Bracton, Fleta and Britton * follow in substance the same
doctrine, although they use different terms. They appro-
' Thorold Rogers, History of Agriculture and Prices, i. 70 ; Six Centuries
of Work and Wages, 44. Cf. Chandler, Five Court Rolls of Great Cressing-
ham 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.
f^ Dial, de Scacc. ii. 10 (Select Charters, p. 222). Cf. i. 10 ; p. 192.
'.. < Glanville, v. 5; Bracton, 4, 5; Fleta, i. a; Britton, ed. Nichols, i. 194.

Chap. I.] (^Uiaimc^t in Bi^at pvadkt, 45
priate 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^m_ grasp_oLthe dis
tinction between status and tenure, between a villain and
a free man holding in villainage, but it does not admit of
anyLdiatinction 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 Treatment
practical import. Quite in keeping with them, manorial f jlnTe^ai
lords could remove peasants from their holdings at their practice.
will and pleasure. An appeal to the courts was of no
avail : the lord in reply had only to oppose his right over
the plaintiffs person, and to refuse to go into the subject-
matter of the case ^. Nor could the villain have any help
' 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 tr3ring to trace the steps by which names originally applying
to difierent 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
dififerent 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).
"¦ Placita Coram Rege, Easter, 14 Edw. I, m. 9 : ' Willelmus Barantyn et
Radulfus attachiati fuerunt ad respondendum Agneti de Chalgraue de placito
quare in ipsam Agnetem apud Chalgraue insultum fecerunt et ipsam ver-
beraverunt, -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 aspor-
taverunt ; et ipsam Agnetem eSugaverunt de uno mesuagio et dimidia virgata
terre de quibus fuit in seysina per predictum Willelmum que fuerunt de
antiquo dominico per longum tempus ; nee permiserunt ipsam Agnetem
morari in predicta villa de Chalgraue ; et eciam quandam sororem ipsius

46 Bt^d M&put of (Piffainage, [e^say i.
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 3.' The state refuses to regulate the
Agnetis eo quod ipsa soror eam hospitavit per duas noctes de domibus suis
eiecit, terra et catalla sua abstuUt. Et predict] 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 tene-
mento ammouere. — Juratores dicunt .... quod predicta tenementa sunt vil-
lenagium predicti Willelmi de Barentyn et quod predicta Agnes tenuit eadem
tenementa ad voluntatem ipsius WUlehni.' Cf. Y. B. ia/13 Edw. Ill (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.'
• Coram Rege, Mich., 3/4 Edw. I, m. i : ' Ricardus de Asshebumham
suramonitus 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 ilia
tenentes facere consueverint, predictus Ricardus diversas commoditates
quam ipsi tam in boscis ipsius Ricardi quam in aliis locis habere consue
verint eisdem subtrahens ipsos ad intoUerabiles 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 mate-
riam 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.' ' Note-book of Bracton, pi. 1237 : ' dominus Rex non vult se de eis
intromittere.' ^ 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 Turk-
illo, 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.

Chap. I

] Z^c (BngKe^ (^iffain anb ^omAnehn, 47

position of this class on the land, and therefore there
can be no question abdut 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 punish
ment 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 actukl
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 identifica-
thought himself entitled to assume equality of condition Romrn*
between the English villain and the Roman slave, and to slavery.
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 care
fully 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
' Maitland, Select Pleas ofthe Crown (Selden Soc. I), pi. 3: 'Quendam
natiyum suum quem habuit in vinculis eo quod voluit fugere.' Bract. Note
book, pi. 1041 : ' Petrus de Herefordia attachiatus fuit ad respondendum R. fil.
Th. quare ipse cepit Ricardum et eum imprisonauit et coegit ad redempcionem
T 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 difiScult 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
ci^vil 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.
' 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,

48 B^^ai 3S,0pu( of (Piefainage. [Essay i.
slaves in the later law of the Empire, and m 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 identifica
tion of villainage with slavery. Although this identifica
tion 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 es
tablished by his raasters 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.
Villains in Most modern writers on the subject have laid stress upon
villains re- ^ difference between villains regardant and villains ingress,
gardant. 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), what
ever has been said by some writers, I can find no manner
of difference ; the distinction was merely technical, and
1 Stubbs, Constitutional History, ii. 65a, 654; Freeman, Norman Con
quest, v. 477 ; Digby, Introduction to the Law of Real Property, 244.

Chap. I.] BiUUt<iW6 (^UW, 49
affected only the mode of pleading. The term in gross is
appropriated in our legal language to property held ab
solutely and without reference to any other. Thus it is
applied to rights of advowson or of common, when pos^
sessed 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 Littleton's
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 Little^
ton 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 133 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
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 acknovvledge them in both thes^
sorts.'
VOL. I. E

50 Bi^cit Meput of (Si^aimc^t, [essayl
a diversity in title, and a consequent diversity in the mode
of pleading. If the lord has a deed or a recorded con
fession 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, 183, 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.
The 'vil- Let us take up the Year Books, which, even in their
gardant' of present state, afford such an inestimable source of inform-
the Year ation 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 plead
ing 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 misapprehen
sion. 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
' 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.

CHAP.L] e^e '(Pifeain (ge0a»:^attf/ 51
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 con
nected — 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 plead
ings at all, but ' regardant to a manor ' is used often.
From Edward Ill'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. ai/aa Edward I, p. i66, ed. Horwood). There is a
case in 13 13 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

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

52 B^Qd Meptct of (^immcit, [e^^^^i-
the term ' regardant,' but it is not forthcoming^ 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 i§
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 133a, for instance, we have
^ Y. B. Hil. 5 Edw. II : ' lohan 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.)
* I do not think it ever came into any one's mind to look at the Plea
{lolls 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 i? 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 i 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 ll'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 ther?
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 difierence between tn
gross and regardant existed. I give in App. I the report of the interesting
case quoted from i Edw. II.
» Y. B. 32/33 Edw. I (Horwood), p. 57 : ' Quant un home est seisi de
son vilein, issi qil est reseant dans son ¦vilenage.' Fitzherbert Abr. ViU. 3
(39 Edw. Ill): '. , . villeins sunt appendant as maners qe sount auncieii

Chap. I] ZW (^m<iin (^i^MbanC 53
'within the manor' wherfe we should expect to find
' regardant to the manor'.' This would be very neariy
equivalent to the Latin formula adopted by the Plea Rolls,
which is simply wif 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 13 17
is well in point. B. P. the defendant excepts against the
plaintiff T. A. on the ground of villainage {gil 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, im
plies 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 Prior of
from 1355, that is from a time when the usual terminology pitaiers^z^.
had already become fixed. It arose under that celebrated Thomas
Statute of Labourers which played such a prominent and Ralph
part in the social history of the fourteenth century. One *-'"P^-
of the difficulties in working the statute came from the
fact that it had to recognise two different sets of relations
demesne.' On the other hand, 'regardant' is used quite independently of
villainage. Y. B. 12/13 Edw.' Ill (Pike), p. 133 : ' come services regardaunts
al manoir de H.'
1 Y. B. Hil. 14 Edw. II, f. 417 : ' R. est baiUi ... del manoir de Clifton
. . . deins quel manoir cesti J. est villein.'
2 See App. I and II.
' 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.'

54 Begaf ile^jecf of (Piffainage. [e^^ayl
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 enfranchise
ment, 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 con
test about status ; the lord pulling one way and the person
' Y. B. Trin. 29 Edw. Ill, f. 41. For the report of this case and the
corresponding entry in the Common Pleas Roll, see Appendix II.

Chap.L] Z^ * (^imn (gt^axbAnt: 55
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 Results as
same man could be according to the point of view considered ^° ' "J'^i"
II -11 • • 1 , ..... regardant'
both as a villain m regard to a manor, and as a villain m and 'villain
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 : i. The
terms ' regardant ' and ' in gross ' have nothing to do with
a legal distinction of status, a. They come up in con
nexion 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 '

56 B6QAtM0pUt of (Piffaina^^. iessayl
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 clairfted.
Theastrier. 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 villainage 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. 393).
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 2, 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
> Cf. Annals of Dunstaple, Ann. Mon. iii. 37.1 : ' Quia astrarius eius fuit,'
in the sense of a person living on one's land.
^ Bracton, f. 267, b.
' Bract. Note-book, pi. 230, 951, 988. Cf. Spehnan, Gloss, v. astrarius
Kentish Custumal, Statutes of the Realm, i. 224. Fleta has it once in the
sense ofthe Anglo-Saxon heorS-fsest, i. cap. 47, § 10 (f. 62).

Chap.L] ^U ^StvUt. 57
and Britton about the villain astrier, we find only a refer
ence 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 astrier.
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 The terri-
that in the villains we have chiefly to do with peasants of villain-
tilling the earth and dependent on manorial organisation, age.
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 bond
man 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
' Bracton, f. 190.

5^ Begaf M,0put of (^iiiAinciQi,
and services to another. He is not protected by his predial
connexion against his lord, and in fact such predial con
nexion 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.

CHAPTER II.
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 prac
tice 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 con
ception. 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 villainage
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 jiot 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
1 Littleton, sect. 187. Cf. Fortescue, ' De laudibus legum Angliae,' c. 42.

6o (^{00 ane> <S}i6mmk0 of i^t^ (^ithifu [essayi.
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 demon-
strability 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 legiti
mate 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 con
nexion with the father as the head of the family. In
addition to this a third element comes in, which may be

' Littleton, sect. i88.
^ Bracton, fif. 5, 193, b.
^ 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.
* Mater certa est. Gai. Inst. i. 82.
' See Fitz. Abr. ViUenage, pi. 5 (43 Edw. Ill) : ' Ou il allege bastardise
pur ceo qe si son auncestor fuit bastard il ne puit estre villein, sinon par connus-
ance.' 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. ViU. 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 foUowed 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 in
volved itself.

chap.il] (^imm^t ^^ (givt^, 6 1
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
ref£];:ence_to_a. manor, in coAnexion with an unfree. hearth ;
he is born in a nest ^, which makes hirn a bondman.
The strict legal notion has to be modified to meet the
emergency, and villainage, instead of indicating complete
personal subjection, corner _to, mean suhjecrion to a terri-
torial 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,
' Bracton, f. 5 : ' Servus ratione qui se copulaverit vUlanae in villenagio con-
stitutae.' Bract. Note-book, 1839 : ' Juratores dicunt quod predictus Aluredua
habuit duos fratres Hugonem [medium] medio tempore natum et Gilibertum
postnatum qui nunc petit, set Hugo cepit quamdam terram in uillenagio et
duxit uxorem [uiUanam] et in uillenagio iUo procreauit quemdam filium qui ad
hue superest. . . . Et bene dicunt quod . . . iste GiUbertus propinquior heres
eius est, ea racione quod filius Hugonis genitus fuit in uillenagio.'
' Y. B. 30/31 Edw. I, p. 167 sqq. ; ' Usage de CornwaU est cecy qe la ou
neyfe deyt estre marier hors de maner ou ele est reseant, qe ele trovera seurte
. . . derevenirason»jiovseschateuxapreslamortdesonbaroun.' Bracton, f.
26, ' Quasi a^vis in nido.'

62 (^i0ee0an5®i0a6ie«ie0of^5e(PiCfam, [Essavl
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 vin
dicate the rights of women entangled in villainage by
a mesalliance '. Such subjection is not absolute, however.
The courts make a distinction between acquiring posses
sion 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 con
ditional 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, pi. 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
' Bract. Note-book, pi. 703 : ' Nota quod libera femina maritata uillano non
recuperat partem alicuius hereditatis quamdiu uiUanus uixerit.'
' Bract. Note-book, pi. 1837 : ' Nota quod muUer que est libera uel in statu
libero saltem ad minus non debet disseisiri quin recuperare possit per assisam
quamuis nupta fuerit uiUano set hereditatem petere non poterit.' Bract.
Note-book, pi. loio : ' Et uiUani mori poterunt per quod predicte sorores petere
possint ius suum.' Fitzherb. Villen. 27 (P. 7 Edw. II.) : ' Les femmes sont
sans reconvene vers le seignior uiuant leur barons pur ce que ils sont villens.'
Cf. Bracton, f. 203.
' Another instance of the influence of marriage on the condition of con
tracting parties is aff'orded 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. 167 sqq. : ' La ou le seygnur espouse sa nej^e, si est
enfranchi purtoz jurs ; 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. ViU. 31 (P. 33 Edw. Ill): '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.

Chap. II.] (^mAxm^i 6^ ^vmn^tion. 63
afford good illustrations of the fact, that villainage by no
means flows from the simple source of personal subjec
tion ; it is largely influenced by the Christian organisa
tion 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 yjl^jain besides Prescrip-
being horn to the condition ; the ackno^wledgment of un- ''°°'
free 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 prescrip
tion, there is a very characteristic vacillation in our sources.
In pleadings of Edward Ill'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 grand
father ' 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 genera
tion 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
1 Fitzherbert, ViU. 24 (H. 50 Edw. Ill; P. 40 Edw. Ill, 17) : 'Si home
demurt en terre tenue en -villenage de temps dount, etc., il sera viUen, et est
bon prescripcion et encountre tel prescripcion est bon pie a dire qe son pere
ou ayle fuit adventiffe,' etc. I suppose ayle here to be a simple error for ayl
or ael, grandfather.
' Cambridge Univ., Dd. vij. 6, f. 231 : 'Nota de tempore quo servus dicere
poterit quia fecent consuetudines ¦villanas racione tenementi non racione
persone. Et sciendum, quod quamdiu servus poterit verificare stipitem suam
liberam non dicitur nativus, set quam citius dominus dicere poterit ¦viUicus
noster est ex auo et tritauo, tunc primo desinit gaudere replicacione omni-
moda et privilegio libertatis racione stipitis, ut si A. primo ingressus vUlena-
gium tenuerit de F. per vUlana servitia, deinde B. fiUus A. , deinde C. filius B. ,
deinde D. filius C, et sic tenuerint in viUenagium de gradu ingradum usque
ad quartum gradum de F. et heredibus suis, ille uUlanus inuentus in quinto
gradu descendente natiuus dicitur.' I am indebted for this passage to the
kindness of Prof. Maitland,

64 (gig^^e <xnb <S}ieAm(k6 of t^^ (^imn, [e-^^y i.
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 require
ments and fluctuating facts.
Criminal Xhe Original unity of purpose and firmness of distinction
relation to are even more broken up when we look at the criminal and
villainage, the police law where they touch villainage. In the criminal
law of the feudal epoch there is hardly any distinction be
tween Jree^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 occu
pations. 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
' Britton, i. 196, 306.
' 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. ' Dial, de Scacc, i. 10. p. 193 : ' Ea propter pene quicumque sic hodie
occisus yeperitur, ut murdrum pnnitur, . exceptis his quibus certa sunt ut
diximus servilis condicionis indicia.' On the other hand the Dialogus lays

Chap. IL] tvmim2 Bnw anb (^imnA^^, 65
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 any
body by way of ' appeal ' ^ for injury to their life, honour,
and even property s, 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. Mait
land'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 ex
clusively 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 Cartu
laries 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.

stress on the fact, that if a viUain's chattels get confiscated they go to the
king and not to the lord (ii. lo. p. 222), but this is regarded as a breach of a
general principle.
1 Glan-viUe, xiv. i : ' Per ferrum callidum si fuerit homo liber, per aquam
si fuerit rusticus.'
^ Lighter off'ences 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 Ulustration of the different footing of viUains in ci^vil 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 ¦viUains, 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.)
' The lord had power over their property, but against everybody else they
were protected by the criminal law.
VOL. I. F

66 ()^M(0 Anb <Sli0Amtke of tU (^x^iAxn, [essayI

Police in It is curious that, as regards police, villains are grouped
viUainage! "nder an institution which, even by its name, according to
the then accepted etymology, was essentially a free institu
tion. The system of frank pledge (plegium liberate'), which
should have included every one ' worthy of his were and
his witel 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 represen
tation 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
fiistory 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
' Sometimes the system is used so as to enforce servitude. See Court
RoUs of Ramsey Abbey. Augmentation Court Rolls, Edw. I, Portf. 34,
No. 46, m. I d. (Aylington) ; ' Adhuc dicunt quod Johannes filius Ricardi
Dunning est tannator et man'et 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. il
p. 64.)
" Bracton, 124 b : ' Quia omnis homo sine 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
sufiliciat pro franco plegio, sicut dignitatem vel ordinem vel liberum tene-
mentum, vel in civitatem rem immobilem.' Nichols, Britton, i. 181, gives
a note from Cambr. MS. Dd. vii. 6, to the effect that 'VUleins and naifs
ought not to be in tithings, secundum quosdam.' This is certainly a mis
understanding, but it can hardly be accounted for either by the enfranchise
ment of the peasant or the decay of the frank-pledge. I think the anno-
tator 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 ghaU refer to it in Appendix III.

CHAP.IL] j^ig ^^^If <S)i0am(ke. 67
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 im
portant 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 Civil dis
part ofthe subject— to the civil rights and disabilities of^S"/^
the villain. After what has been said of the villain in other liis lord.
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
^ See below. Essay I. chap. vi.
' Bract. Note-book, pi. -1256 : ' Et Ricardus dicit quod assisa non debet inde
fieri quia predictus lohannes dedit terram illam cuidam uiUano ipsius Ricardi, et
ipse uillanus reddidit terram illam domino suo sicut emptam catallis domini sui,
et quod ita ingressum habuit per uillanum ilium in terram illam ponit se super
iuratam.' Liber Assisarum, ann. 41. pi. 4. f. 252, shows that the statute de reli
giosis 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 lieyres 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 com
pellable de entre sU 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 arete dentre, et
le statut nestoit pas fait mes de restreindre purchaus a faire de nouel, et non
F a

68 (}^i00 anb <S)i0Amtk0 oftH (^ii^Ain. [Essayi.
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 careless
ness, 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^ihird person cannot except against a plaintiff
merely on the ground ofhis personal status. As.t_o_third
persons, a yillain Js said to be free and capable to sue all
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. 41 Edw. Ill, pi. 8.
f. 21.) 1 Bracton, f. 25 : 'Si  stipulatus sit servus sibi ipsi, et non domino,- id non
statim acquiritur domino, quamuis illud (corr. ille) sit sub volun tate et potes
tate sua, antequam dominus apprehensus fuerit possessionem. Quod quidem
impune facere poterit, si voluerit, propter exceptionem,' etc. Fitz. Abr. ViU.
pi. 22 (Pasch. 35 Edw. Ill) : ' Si le viUen 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.' * Bracton, f. 25 b : ' Sic constat, quod qui sub potestate alterius fuerit, dare
poterit. Sed qualiter hoc cum ipse, qui ab aliis possidetur, nihU possidere
possit ? Ergo videtur quod nihU 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 viUain were to be taken
only when the lord's goods were exhausted. Dialog, de Scacc. ii. 14.
p. 229.
' Bracton, f. igo : ' Et non competit alicui hujusmodi exceptio deviUenagio,
praeterquam vero domino, nisi utrumque probet, scUicet quod viUanus sit et
teneat in viUenagio, 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-

CHAP.IL] 55(g ^i^ip <S}i0Aumk0. 69
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 conse
quence 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. ' Britton, i. 199 ; Littleton, 189 ; Bract. Note-book, pi. 1025 : ' Assisa venit
recognitura utrum una uirgata terre cum pertinenciis in R. sit libera elemosina
pertinens ad ecclesiam Magistri lohannis de R. de R. an laicum feodum Gaufridi
Beieudehe. Qui venit et dicit quod non debet inde assisa fieri quia ante
cessores sui feoffati fuerunt a conquestu Anglie ita quod tenerent de ecclesia Ula
et redderent ei per annum x. solidos  luratores dicunt quod terra iUa 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 uenrt Gaufridus et
cognouit quod est uillanus Comitis Warenne. Postea concordati sunt,' etc.
^ Example, Fitz. Abr. VUlen. 16. The proper reply to such a plea is shown by
Bract. Note-book, pi. 1833 : ' Et lohannes dicit quod hoc ei nocere non debet,
quia quicquid idem dicat de uiUenagio, ipsemet ut liber homo sine contradic-
cione domini sui terram iUam dedit lohanni del Frid patri istius lohannis pro
homagio et seruicio suo . . . Consideratum est quod predictus lohannes recu-
perauit seisinam suam, et Richerus in misericordia.' Liber Assis. ann. 43.
pi. I. f. 265 gives the contrary decision : ' Lassise agarde et prise, per quel
il fuit troue quU [le defendant] fuit viUein 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
mesraes a Westminster. A que jour per opinion de la Court le briefe abatu,
per que le plaintif fuit non sue,' etc.
^ A different view is taken by Stubbs, i. 484.

70 {^{00 Anb <S)i0Amtk0 oftU (S^i^Ain, [Ebsayi.
Convention Even against his lord the bondman had some standing
iTrd *^ ground for a civil action. It has rightly been maintained,
that he could implead his mastej 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 doctrina
They deal almost exclusively with the case of a feoff
ment 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 in
directly, 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 even
tually 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^.
' 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.
'^ Bracton, 193 b : 'Si autem domimis 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 viUenagio competit
ei replicatio.' Cf. 23 b and Britton, i. 347 ; Fleta, 238 ; Littleton, sees. 205,
207. ' Bracton, 24 b : 'Si autem in charta hoc tantum contineatur, habendum
et tenendum tali (cura sit servus) per liberum servitium huiusmodi verba non
faciunt servum liberum nee dant ei liberum tenementum . . . Quia tenementunl
nichil confert nee detrahit personae, nisi praecedat, ut dictum est, homagium
vel manumissio, vel quod tantundem valet de concessione domini, scUicet
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 viUano.
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 con
ventionem, et quamvis damnum sentiat, non tamen fit ei injuria et ex quo
prudenter et scienter contraxit cum servo suo, tacite renunciavit exceptionem
villenagii.'

CHAP.IL] tonnntkn wi(^ tu Movb. 71
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 under
stood 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 fur
ther 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 pre
ceding, and so mixed up two eases, which were to be dis
tinguished by this very qualification. The four words are
missing in all the MSS. ofthe 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

* The freehold would be given and stiU ' non recuperet per assisam no.
diss, quia domino competit assisa et non vUlano.'
2 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.
s The Cambridge MSS. have been inspected for me by Mr. Maitland.

72 (]^i00 Anb <S}i0Amtk0 oftU (Within. [Essayi.
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 so
cage^.
Legal prae- The reader may well ask whether there are any traces of
conven-° ^'^^'^ ^^ institution in practice, as it is not likely that
tions. Bracton would have indulged in mere theoretical disquisi-
' 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.'
^ Bracton, f. 208 b : ' Est etiam viUenagium non ita purum, sive concedatur
libero homini velvillano ex conventione tenendum pro certis servitiis et consue-
tudinibus nominatis et expressis, quamvis servitia et consuetudines sunt
villanae. Et unde si liber ejectus fuerit vel vUlanus manumissus vel alienatus
(corr. alienus best MSS.) recuperare non poterunt ut liberum tenementum,
cum sit viUenagium et cadit assisa, vertitur tamen in juratam ad inquirendum
de conventione propter voluntatem dimittentis et consensum, quia si quae-
rentes in tali casu recuperarint viUenagium, non erit propter hoc domino
injuriatum propter ipsius voluntatem et consensum, et contra voluntatem suam
jura ei non subveniunt, quia si dominus potest villanum manumittere etfeoffare
multo fortius poterit ei quanda'm conventionem facere, et quia si potest id quod
plus est, potest multo fortius id quod minus est.' We have here another
difiSculty wiih 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 ¦viUain 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 wUl.' 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 viUain's contractual rights against the lord. Another solution of the difS-
culty is suggested to me by Sir Frederick PoUock. 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 Ues not and there shall only
be an action on the covenant. If we accept this explanation which saves the
words under suspicion, we shaU have to face another difiSculty : 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.

Chap. II.] Coitveitfioit wx(^ tU Botb, 73
tions on such an important point. Now it would be
difficult to find very many instances in point; the line
b£tffi£&a.cfiyjnajntand.ejife^aniLaiLJafiauiious^slep^would ha,ve such unpleasant con-
sequencesjbrjandlords. that thgyjcgptas clear as possible
of MJ^deed^wlyclLniight jn,di^ theirjclaims as to
the^ersons pXtheir villains'. On the other hand,_even^^privi-
legsiserfiKPjuWhavea great difficulty in yindicating their
rights pry hebasis of coy enajTt^^^^ they remained at the same
tiniejindLer tJie .sway of the lord in general. The difficul
ties 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 1337, before Martin Pateshull him
self 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 later practice is weU 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 ?
' Besides the case from the Note-book which I discuss in the text,
Bracton, f. 199, is in point : ' Item esto quod viUanus teneat per Uberum
servitium sibi tantum' nulla facta mentione de heredibus, si cum ejectus fuerit
proferat assisam, et cum objecta fuerit exceptio viUenagii, 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 viUain fails in his assize and there has been no manu
mission, StiU 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 vUlain against the
lord?

74 (S^x00 Anb <S}x6Amtk0 of (U (Sit-in, [e^say i.
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 ^.
Waynage. Again, we find in the beginning of Bracton's treatise a re
mark^ 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
1 Bract. Note-book, pi. 1814: ' Nota quod filius viUani recuperat per assisam
noue disseisine terram quam pater suus tenuit in ¦villenagio quia dominus
viUani illam dedit filio suo per cartam suam eciam sine manumissione.'
' F. W. Maitland teUs me, that Concanen's Report of Ro-we v. BretUon
describes bond conventioners in Cornwall.
^ Bracton, f. 6 : ' Et in hoc legem habent contra dominos, quod stare
possunt in judicio contra eos de vita et membris propter sae^vitiam domi-
norum, vel propter intoUerabilem injuriam, ut si eos destruant, quod sal
vum non possit eis esse waynagium suum. [Hoc autem verum est de Uiis
servis, qui tenent de antiquo dominico coronae, Ised de aliis secus est,
quia quandocunque placuerit domino, auferre poterit a villano suo way
nagium suum et omnia bona sua.] Expedit enim reipublicae ne quis re sua
male utatur.'

CHAP.IL] (^A^nA^i, 75
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 V But there it is, and it
cannot be explained otherwise than as a survival of a time
when some part of the' peasantry at Jeast_had _not been
surrendered to the lord's discretionj but was possessed of
civil rights and of the power to vindicate them. The
nQtioiTL 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 de
stroying their waynage =*. Of course, the protection of the
peasant's prosperity, guaranteed by the courts in such

1 See my article in the L. Q. R., i. I95-
" Bracton, f. 196-203.
= 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.)

76 (^{00 Anb <S}x0Amx(k0 oftU (^xiSAxn. [Ebsayi.
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.
Villains Another anomaly is supplied by Britton. After putting
devised.^ the case as strongly as possible against serfs, after treat
ing 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 juris
diction 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 ^.
' Spence, Equitable Jurisdiction, i. 136.
^ The Mirror of Justices, p. no, follows Britton in this matter. This

CHAP.IL] ^Q^ (q g^ b€m0tb, 77
An inquiry into the condition of villains would be Villain
altogether incomplete, if it did not touch on the questions ^u"^ ^""^
of villain tenure and villain services. Both are intimately service.
connected with personal status, as may be seen from the
very names, and both have to be very carefully distin
guished 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 funda
mental 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 per
sonally ; a villain holding (viUenagium) 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 co.nstantly seen taking up a viUen
agium ; 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

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.
1 Bracton, f. 26 b, 200. Cf. Bract. Note-book, pi. 141 : 'Dicit quod tunc
temporis scilicet in itinere iusticiariorum tenuit ipse quamdam terram in
uUlenagium quam emerat, et tunc cognouit quod terra ilia fuit uiUenagium,
et precise defendit quod nunquam cognouit se esse uillanum.'
'^ Britton, ii. 13 ; Y. B. 20/^1 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'

78 (gx00 Anb <S)x0Amtk0 of (U (^ittAxn. [Essayi.
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 sub
ject. In fact we come across many apparent contradic
tions which can be attributed only to a state of fermentation
and transition in the law of the thirteenth century.
Martin of Martin of Bestenover's case is used by Bracton in his
?wc°o==o treatise as illustrating the view that tenure has no influence
Over £> wADCf ^^
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 b.y consent
of the parties is called in, and we have their verdict reported
three times in different records *. They say that Murtin's
father Ailfric held of John Montacute's father a hundred
acres of land and fifty sheep besides, for which he had to
pay ¦xos. 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 de
cision 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 th^ land.
1 Bracton, f i68.
^ Ibid., f. 199 b.
' Palgrave, Rotuh Curiae Regis, ii. 192.
* Placitorum Abbrev. 25, 39 ; Note-book, pi. 88. (The father is caUed
Ailfricus in the Plea RoU Divers terms 3 John, 2 d., at the Record OfSce.)

CHAP.IL] (^mAxn ZtnuH Anb ^emce^. 79
Proceedings break out again at the beginning of Henry
Ill'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 laao ; whether we have
two decisions, one of 1 319 and the other of 1330, 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 1330 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 consue-
tudinibus 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 Note-.
book and' in his treatise. ' If Martin,' say the judges on
the roll of 1 31 9, '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 1330.
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 re
maining on the land depended on the wish of Martin, who
as a free man was entitled to go away when he pleased ^
' Bract. Note-book, pi. 88.
^ Case 70 : ' Consideratum est quod terra ilia est uilenagium ipsius Hugonis
(corr. Johannis), et quod si Martinus uoluerit terram tenere faciat consue
tudines quas pater suus fecit, sin autem capiat terram suam in manum
suam.' ' Marginal remark in the Note-book to pi. 70 : ' Nota quod liber homo potest
facere uiUanas consuetudines racione tenementi uiUani set propter hoc non
erit uiUanus, quia potest reUnquere tenementum.' Comp. Mr. Maitland's note
jtQ the case.

8o (]^i00 Anb <S)x0Amtxi0 of tu (^xKAin. [e^sayi.
The judgment does not exactly say this, but as to the
right of a free person to leave the land there can be no
Tenant doubt.
right of jj^g second conclusion is, that if a free man hold in
free man ' ~ . "
holding in villainage by villain services he cannot be ejected by the
VI amage. j^^^ against his will, provided he is performing the services
due from the holding. What Bracton says here is dis
tinctly implied by the decisions of 1319 and. 1330, which
subject the lord's power of dealing with the land to a con
dition — 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 de
cision of William Raleigh, who granted an assize of mort
d'ancestor to a free man holding in villainage ^. Un
fortunately the original record of this case has been
lost. The decision in a case of 1335 goes even further. It
is an assize of novel disseisin brought by a certain William
the son of Hemy 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 befofe
1 Bracton, f. 199 b : ' Unde videtur per hoc, quod Ucet liber homo (eneat
viUenagium per villanas consuetudines, contra voluntatem suam ejici non
debet, dum tamen facere voluerit consuetudines quae pertinent ad viUenagium,
et quae praestantur ratione ¦villenagii, et non ratione personae.'
' Cf. Blackstone's characteristic of copyholds : ' But it is the very con
dition 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.)
' Bract, f. 200.
* Bract. Note-book, pi. 1103: ' Et ideo consideratum est quod WiUelmus con-
uictus est de uilenagio et si facere uoluerit predictas consuetudines teneat illaitt

CHAP.IL] ^ifeaitt Ztnmu Anb Service©. 8i
us is quite isolated, and it goes against the rules of pro
cedure 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 vil
lainage 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 ofthe 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 The test of
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
bouatam terre per easdem consuetudines, sin autem faciat Bartholomeus de
terra et de ipso Willelmo uoluntatem suam ut de uiUano suo et ei liberatur
Cf. Mr. Maitland's note.
* I should like to draw attention to one more case which completes the
picture from another side. Bract. Note-book, pi. 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 uiUani sunt. Et Symon concedit eis
quod teneant tenementa sua faciendo inde seruicia quae pertinent ad uiUena
gium, ita tamen quod non dent plus in auxilium ad festum St. Mich, nee per
annum quam duodecim denarios scUicet quilibet ipsorum et hoc nomine
tallagii.' — The writ of customs and services was out of place between lord
and viUain. The usual course was distraint. The case is clearly one of
privUeged viUainage, but it is well to note that although the services are in
one respect certain, the persons remain unfree.
G

82 (^xc^Ue c^r^b <S)x0Amtk0 of tu (^ii^c^irx, [Essayi.
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 retrac
tation ', 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 informa=
tion 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 5
' certain or uncertain ? ' was the catchword in one case ; ' of
what kind ? ' in the other. A good illustration of the un
settled condition of the law is afforded by the case Priof
* Bracton, f. 208 b.
' Ibid., f. 200.
^ Bract. Note-book, pi. 63 : ' Dicunt quod idem W. nullum habuit liberum
tenementum quia ipse uillanus fuit et fecit omnimoda uilenagia quia non potuit
filiam suam maritare nee 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 uiUenagio per annum 19 den. et aruram trium dierum et messuram trium
dierum . . . et gersumam pro filia sua maritanda et unam gaUinam ad Nataleet
tot oua ad Pascha et tallagium et quod sit prepositus suus. Set quia Ula sunt
servilia et ad uiUenagium spectancia et non ad liberum tenementum, con-.
sideratum est quod magna assisa non iacet inter eos, set fiat inquisicio per
xii,' etc. Cf. 794, 1005, 1225, 1661.

CHAP.IL] Z^0t of ^ivmu0, 83
of Ripley v. Thomas Fitz- A dam. 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 th^
classification of tenures according to the nature of customs
may afford valuable clues to the origin of legal dis
abilities 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 The pro-
was decidedly favourable to liberty. To begin with, only " stTons
one proof was accepted as conclusive against it — absolute of status.
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
^ 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
assensura 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.'
^ Example— Bract. Note-book, pi. 1887. Fitzherbert, Abr. ViUen. 38 (13
Ed. 1) : ' Quia predictus J. nuUam probacionem producit neque sectam et cog-
noscit quod iUe est in seisina . . . de patre predicti W. quem potuit produxisse
ad probacionem, consideratum est quod predicti W. et R. liberi maneant.'
' Bracton, f. 199. The jury came in only by consent of the parties.
G 3

84 (gxci^t0 Anb ^x0Amtk0 of tu (^xthin. [Essay i.
villainage in bar had the right notwithstanding such
decision to sue for his liberty. When the proof by kin
ship 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*.
When villainage was pleaded in bar against a person out
of the power of the lord, the special question was very
' Britton, i. 307 ; Fitzherbert, Abr. VUlen. 37.
= Court Rolls of Havering atte Bower, Essex, Augment. Off. Rolls, xiv. 38.
(Curia— die Jovis proxima ante festum St. Bartholomaei Apostoh anno r. r.
Ricardi II, 2imo.) ' Inquisicio . . . dicit . . . quod non est aliquis homo
natiuus de sanguine ingressus feodum domini, set dicunt quod est quidam
Johannes Shillyng qui Sepius dictus fuerat natiuus. Et dicunt uUra quod
quidam Johannes Shillyng pater predicti Johannis fuit aUenigena et quod
predictus Johannes Shillyng quod ad eorum cognitionem est fiber et libere
condicionis et non natiuus.'
' Fitzherbert, Abr. Villen. 33 (H. 19 Edw. II).
« Ibid. 5 (13 Edw. I).

Chap. IL] ^^oce^uve xn Ouee^ione of ^tAtm, 85
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 villain
age 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 enjoy
ment 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
1 Fitzherbert, 1. c. : ' E ce issu fuit trie par gents de paiis ou le maner est e
nemi ou U nasquist par touts les justices.'
2 RotuU Pariiara. ii. 193. Hargrave's argument in the Negro Somerset's
case is very good on aU these points. HoweU, State Trials, xx. 38, 39.
' Bracton, 201 ; Britton, i. so3 sq.

S6 (Bx00 Anb <S)x0Am(k0 of tu (^ii^Axn, [Es

rt

chisement.

town C. The dependant could be effectually coerced only
if he got back to his unfree nest again or through the means
bf such kinsfolk as he had left in the unfree nest '- And
so the settlement of disputed rights connected with status
Tarings home forcibly two important positions : ...first the
theory, of personal subjection is modified, in its legal ap-
plication by influence^iji favour of liberty ; and next this .
influence is not to be traced exclusively to moral and[ intel
lectual progress, but must be accounted for to a great ex-"
tent by peculiarities in the political structure of feudalism.
Enfran- 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 impHed
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 villain
age, 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^
• Bracton, f. 6, and on many other occasions.
^ 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 race.' Henry II puts it the other way, p. 220 : ' Nisi sunt in dominio
meo.'

chap,il] ^nfranc^iement 87
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 cqnjecture 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 occa
sional 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 Note-
' A most curious pleading based on the conceptions of GlanvUle occurs in
a Cor. Rege case of lo 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 seUing 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.
' Note-book, pi. 31, 343.
^ Bracton, f. 194, 195. Bracton's text has been rendered almost unintel
ligible here by the careless punctuation of his editors, and Sir Travers Twiss'
translation is as wrong and misleading as usual. 1 wiU just give the passage
in accordance with the reading of Digby, 223 (Bodleian Libr.), which is the
best of all the MSS. 1 have seen : ' Quia esto quod seruus uelit manumitti et
cum nichU habeat proprium eligat fidem alicuius qui eum emat quasi pro

88 (Bi0^f0 Anb ^i0Amxtk0 of tU (^i^Axn,
book. A decision of 1336 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 Note
book very appropriately protests against such a view, which
is certainly quite inconsistent with later practice'. Such
flagrant contradictions between authorities which are sepa
rated 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.
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 hie pretium pro natiuo, set nuUa subse-
quitur traditio, sed semper manet in uillenagio quo prius. Si tenementum
adquirat tenendum libere et heres manumissoris uel aUus successor eum
eiciat, si petat per assisam et heres opponat uUlenagiiim, et viUanus 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.'
' Note-book, pi. 1749 : ' ludicatum est quod liber sit quantum ad heredem
manumittentis et non quantum ad alios, quod indicium non est uerum.'

CHAPTER III,
ANCIENT DEMESNE.
The old lawbooks mention one kind of villainage which Definition.
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 ofthe manor'. 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'^. This includes manors which had been given
away subsequently, and excludes such as had lapsed to the
' Bracton, 209; cf. 7 and 200. Britton, ii. 13.
* Bracton, 209 : ' ViUenagium pri^vilegiatum . . . tenetur de Rege a Con
questu Angliae.' Cf. Blackstone, Law Tracts, ii. 128.

90 ^ncknt ©emeene. [Essayi.
king after the Conquest by escheat or forfeiture'. Pos
sessions granted away by Saxon kings before the Conquest
are equally excluded^. In order to ascertain what these
manors were the courts reverted to the Domesday descrip
tion 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 io56, 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 ofthe Conqueror^. And so 1066 and not 1086 is the
decisive year for the legal formation of this class of manors*.
' Madox, History of the Exchequer, i. 704 : ' Tallagium dominiorum et
escaetarum et custodiarum.'
^ 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.'
» Y. B. Trin. 49 Edw. Ill, pi. 8 (Fitzherbert, Abr. Monstraver. 4) : ' . . . touts
les demesnes qui fuerent en la maine Seint E. sont aunci^s demesne, mesque
ils fuerent aliens a estraunge mains quant le liver de Domesday se fist, come
ll avient del manor de Totenham qui fut en autre maine a temps de Domes
day fait, come en le dit livers fait mencion, que il fuit adonques al Counte
de Cestre.'
' Very curious pleadings occurred in 1323. Y. B. 15 Edw. 11, p. 455 :
'Ber(mck) lis dient en I'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 dyrae foiUe apres sur un title terra R., mesine (corr. mes une or mesqe?)
R. fuit escript sur le margin de chescun foiUe 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

Chap. III.] J^g ^XXVXit^t0. 9 1
In many respects the position of the peasantry in ancient Tenure in
cleme_sne..is nearly allied to_lhat of^men holding in villain- demesne a
age at common law. They perform all kinds of agri- kind of
cultural services and are subject to duties quite analogous '' ^'°^s^-
to those which prevail in other places ; we may find on these
ancient manors almost all the incidents of servile customi
Sometimes very harsh forms of distress are used against
the tenants ' ; 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 ^. We often come across, such base customs
as the payment of merchet in connexion with the ' villain
socmen' of ancient demesne^. 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 indica- Privileges
tions given by the law books must be largely supplemented demesne.
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 difl'erence 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. 1 give the entry on the Plea RoU in App. V.
1 I think only distress can be impUed by the remark of Bereford J.
Y. B. 30/31 Edw. I, p. 19 : ' Quant vous vendrez a loustel, fetes de vostre
arche^vileyn ceo qe vous vodrez.' The words are strange and possibly
corrupt. ^ Blackstone, Law Tracts, ii. 153 : ' They cannot alienate tenements other-
Wise than by surrender into the lord's hand.' Bracton, 209.
^ 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. fiUi 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. Ivj continetur in rotulo curie quod
WUlelmus Michel fuit in misericordia quia maritauit fiUam suam sine licencia
domini et simiUter 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 aff'orded by the Ledecumbe (Letcombe) Regis
Court Rolls of 1372. Chapter House, County Bags, Berks. No. 3, m. 12 :
' Johannes le Jeune se redemit ad maritandum et fecit finem xij sol. . . .
Johannes Atwel redemit fiUam suam anno predicto ' (Record Office).

92 ^ncknt ®eme0ne. [essayi.
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 re
solves 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', they
are not assessed with the rest for danegeld or common
amercements or the murder fine^, they are exempted from
the jurisdiction of the sheriff^, and do not serve on juries
and assizes before the king's justices* ; they are free from
toll in all markets and custom-houses^. Last, but not least
they do not get taxed with the country at large, and for
this reason they have originally no representatives in par
liament 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 ^. 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
* Henry ll's charter to Stoneleigh Abbey : ' Quieta de schiris et hundredis,
et murdro et danegeldo, et placitis et querelis, et geldis et auxUus, et omni
consuetudine et exactione ' (Dugdale, Monasticon, v. 447).
^ Close RoU, 12 Henry 111, m. 11, d : ' Monstrauerunt domino Regi homi
nes de Esindene et de Beyford, quod occasione misericordiae c. librarum,
in quam totus Comitatus Hertfordie incidit coram iusticiariis ultimo itine-
rantibus . . . hidagium quoddam assedit vicecomes super eos ad auxUium
faciendum ceteris de comitatu ad misericordiam iUam acquietandam et inde
eos distringit. Quia vero predicti homines nee alii de dorainicis domini Regis
sectam faciunt ad comitatum et ea racione non tenentur ad misericordiam
ceterorum de comitatu iUo acquietandam auxilium facere aut inde participes
esse, mandatum est vicecomiti Hertfordie quod homines predictos in hidagio
et demanda pacem habere permittat' (Record Ofiice). Placita de Quo
Warranto, 777, 778 : ' Non quieti de communi amerciamento nisi tantum in
Stonle.' = Viner, Abr. v. Anc. Dem. C^ i ; cf. E, 20. Madox, Hist, of Exch., i.
418, note /: ' Quieti de auxUio vicecomitis et baillivorum suorum.'
* Cor. Rege, Mich. 5 E. 11, m. 77 : ' (Juratores dicunt quod homines de
Wycle) in itinere respondent per quatuor et prepositum sicut cetere viUe de
corpore comitatus.' This against their claim to hold in ancient demesne.
s Viner, Abr. Anc. Dem. B. i, 4, 6.
' Madox, Exch., i. 413, 698.

Chap. III.] ^(g ^VmU^t0, 93
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 re
maining in his hand'. 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^, 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^. But the general rule up to the four
teenth century was undoubtedly to relinquish the pro
ceeds 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
1 Stubbs, ii. 566, 567 (Libr. ed.) ; Madox, Exch., i. 751.
' Cor. R. M. s E. II, m. 77 : ' Quando communitas comitatus talliatur . . .
predicti homines taxantur sicut ceteri viUani ejusdem comitatus' (against the
ancient demesne claim). '
» Fitzherbert, Abr. Monstauerunt, 6 (H. 32 E. Ill) : ' . . . quant le roi taile
les burghs a taunt come ils paia a taUe pur tant U nous distreint.' Th. : ' En-
tend qe les feoff-es le royauront taile? ' quasi diceret non, ' car cest un regalte
qui proprement attient al roy et ^ nul auter.' Clam. : ' Tout aura il tail il
serra leue en due maner sU auront breve hors del chauncene 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 inspec
tion of the Exchequer RoUs (Madox, Exch., i. 757. ")• Before granting a
writ of tallage lo the Abbot of Stoneleigh in 1253, Henry 111 had an inquisition
made as to the precedents. It was found that ' Nunquam predictum mane-
rium de Stonle talliatum fuit postquam Johannes Rex predictum manenum
dedit predicti Abbati et Conventui' (Stoneleigh Reg., f. 35).

94 3^ncknt ^imi0nc, [essayi.
not. want his land and his men to be subjected to any
vexatious burdens which would lessen their power of
yielding income'. 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 par
ticular kind of relations as characteristic of the institution.
Legal practice and later theory concerned themselves
mostly with peculiarities of procedure, and with the even
tuality 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.
Parvum 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^.
It does not concern freehold estate, but only land of base
though privileged tenure. An action for freehold also may

• 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. Fleta, p. 4.
' Natura Brevium, f. 3 b (ed. Pynson).

breve de
recto,

Chap. III.] * £i(f f^ (^tXt Of ^X0 €000^/ 95
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'.'
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^. 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^ in land to ancient
demesne, peculiarities which, however, are not universally
found*, 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, notwithstand
ing its limitations, actually imparted to them something of
' Y. B. H. 49 E. Ill, pi. 12 (Fitzherbert, Abr. Aunc. Dem. 42, quotes pi. 7
instead of 13 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.
^ Bracton actually calls the plea of ancient demesne an exception of
villainage, f. 200 : ' Si autem in sokagio viUano, sicut de dominico domini
Regis, Hcet servitia certa sunt, obstabit ei exceptio viUenagii, quia talis
sokmannus liberum tenementum non habet quia tenet nomine alieno.' CL
fitzherbert, Abr. Aunc. Dem. 33.
^ Bract. Note-book, pi. 653 : ' Non debent extra manerium illud placitare
quia non possunt [ponere] se in magnam assisam nee 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 Introduction to Y. B. 21/22
Edw. I, p. xviii.
* Stoneleigh Reg., f 76 sqq : ' Item in placito terre possunt partes si volue-
rint ponere jus terre sue in duello campionum vel per magnam assisam, prout
patet in recordo rotuli de anno xiv Regis Henrici inter Walterum H. et
Johannem del Hul etc. et inter Galfridum Crulefeld et WiUelmum Elisaundre
anno xx Regis Edwardi filii Regis Henrici,' etc.

96 Mncknt ®ettte0tte. [Essayi.
the nature of freehold, and led to a great confusion of attri
butes and principles. Indeed, the difficulty of keeping within
the hnes 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 ten.ement can be sued for
as 'freehold' in common law courts'. Surely this Could
happen only because the tenujre _lnL_ancjent_demesne,
although a kind of villainage, closely resembled freehold.
The 'little One has primarily to look for an explanation ofthese
manors great privileges to manors, which had been granted by
alienated tj^e king to private lords. On such lands the 'little
Crown. writ' lay both when 'villain socmen' were pleading
against each other ^, and when a socman was opposed
to his lord as a plaintiff^. 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
' 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.'
' Britton, ii, 143.
' 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, be
cause ancient demesne is a good plea whenever recovery in the action
would make the land frank fee.

Chap. IIL] ZU * BxttU (^Vit: 97
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'.
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^. 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 explana
tion 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
' Y. B., M. 41 Edw. Ill, 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. Ill,
pi. 7, f. 253 : ' Wichingham : Si le tenant en auncien demesne fuit disseisi
par le seignior en auncien demesne U 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 aUlours aver son recoverie que en le court
le roy.'
=¦ Stoneleigh Register : ' Item anno regni Regis Eduardi fiUi Regis
Henrici -vij Ricardus Peyto tuUt breue de recto versus abbatem de
Stonle et aUos de tenementis in Fynhara in curia de Stonle.' There
are several instances in the Court Rolls of King's Ripton, Hunts. See
App. V.
VOL. I. H

98 Mncknt ®eitte0ne. [essayi.
exception, that it applies quite as much to those which re-r
-main in the crown as to those which have been alienated
from it'. And this leads us to a very important deduction.
If the affinity of privileged villainage and freehold is con-,
nected 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 b^
traced to the general condition of the king's manors in
ancient demesne^.
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 ^ 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*.
Procedure Actions as.to personal estate .coukL.be 4>Leaded. without
of revision. ' Bract. Note-book, 834 : ' Preceptum est vicecomiti quod preciperet balr
livis 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 Geofi'rey
(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 pri^vileges.' John Fitz Geofi'rey is the King's
frmarius, and the other defendants vouch him to warranty. Afl;er 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 155. 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, althougl)
not holding nomine proprio in strict law, is compelled to answer without th^
King in the manorial court and by the manorial writ.
' I need not say that the ' Uttle writ ' did not lie against the King himself,
No writs did. Cp. Fleta, p. 4.
» Y. B., 11/12 Edw. Ill, 325 (RoUs Sen).
* I shall have to speak of the constitution and usages of the court in
another chapter,

Chap. IIL] (proce^ute of (gem0iott. 99
writ and as for the crown pleas they were reserved tp the
high courts'. But even in actions regarding the soil a
removal to these latter was not excluded 2. Evocation
to a higher court followed naturally if the manorial
court refused justice and such removal made the land
frank fee^ 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*. Instances of examination
and revision are frequent in our records ^. The examina
tion 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 prece
dents could be adduced and proved as to the usage ^ ; they
allowed a great latitude for the peculiarities of customary
' 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.
' 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.
^ Viner, Abr., I. 21.
* Y. B., H. 3 Edw. Ill, 29: ' Gaunt: Si le jugement soit une foitz revers,
la court auncien demesne ad perdu conusance de ce pie a touts jours.'
° Stoneleigh Reg. : ' Item si contingat quod error sit in iudiciis eorum et
pars ex eorum errore gravetur contra consuetudines, pars gravata habebit
l>reve 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 indicium secundum quantitatem delicti
ad multam condempnabunt.'
« Bract. Note-book, 834 : ' Et iUi de curia qui veniunt quesiti, si unquam
tale factum fuit judicium in prefata curia, et quod ostendant exemplum, et
flichU inde ostendere possunt, nee exemplum nee aliud.'
H 3

loo 3S,ncknt ®eme0tte. [e^sayi.
law ; but the difficulty was that a line had to be drawn some
where '. This procedure of revision on the whole is quite
as important a manifestation of the freehold qualities of pri
vileged villainage as pleading by writ. Men holding in pure
vijlainage 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 re
vision 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 ^- Revision and reversal were provided, not as a
complement to the legal protection of the tenant against
the lord, but as a consequence of Jhat independent position
of the tenant as a person wh.o_has rights against all. men
which is manifested in the parvum breve ^. It is not
without interest to notice in this connexion that the parvwm
breve is sometimes introduced in the law books, not as a
restriction put upon the tenant, nor as the outcome of vil
lainage, 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 *.
> Y. B., 11/12 Edw. Ill, 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 U 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. Ill, ag,
and T. 3 Edw. Ill, 29.
° Bract. Note-book, pi. 834 and 1 122 concern the royal manors of Havering
and Kingston.
' I say against aU men, because in the case of a stremger's interfering
with the privUeged villain's rights, it was for him to prove any exemption,
c. g. conveyance by charter, which would take the matter out of the range
of the manorial court.
* Britton, ii. 13 : ' Et pur ceo qe nous voloms qe ils eyent tele quiete,
est ordeyne le bref de droit clos pledable par baiUif del maner de tort fet del

Chap. IIL] (JOn^ of ' (moit0fyaDevttn(/ loi
If protection against the lord had been the only object Breve de
of the procedure in cases of ancient demesne, one does v^°nf'"'"
not see why there should be a ' little writ ' at all, as there
was a remedy against the lord's encroachments in the
writof ' Monstraverunt'' 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 ^
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 3.
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 *. These
exceptional features were evidently meant to facilitate the
action of humble people against a powerful magnate^. But
it seems to me that the deviation from the rules governing
un sokeman al autre, qe il tiegne les plaintifs a droit selom les usages del
maner par simples enquestes.'
' Natura brevium, f. 4 b (ed. Pynson).
" 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 baUiuos suos per breve Regis quod
vocatur Monstraverunt nobis homines de soka de Stonle,' etc.
= Viner, Abr. Anc. Dem. C^ 3.
' Fitzherbert, Abr. Monstraverunt, 5 (P. 19, Edw. Ill) : ' 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.'
° 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

I02 Mncknt ®ettt^0tt^. [essayi.
writs at common law is to be explained not only by the
general aim of the writ but also by its origin.
Petition. In form it was simply an injunction on a plaint. Wheri
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 in
junction to the common law courts or to the Exchequei"
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
monstraverunt N . N . ; ex parte N.N. ostensuni est: — these
are the opening words of the king's injunctions consequent
upon the humble remonstrations of his aggrieved subjects'.
Again, we find that the application for the writ by privileged
villains is actually described as a plaint^. In some cases it
would be difficult to tell on the face of the initiatory docu
ment, whether we have to do with a ^ breve de monstrdve''
runt ' to coerce the manorial lord, or with an extraordinary
measure taken by the king with a view to settling his own
interests '*-
And this brings me to the main point. Although the
writ under discussion seems at first sight to meet the
astonishing answer that they are not his tenants at all. It aU ends by the
collapse of the plaintiff's 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 iU-treating the
tenantry. At last he carried oS a verdict in his favour ; but the management
of the trial certainly casts much suspicion on it. Cf. Placitorum Abbre-
viatio, 303.
' Madox, History ofthe Exch., i. 723, c, d; 724, e; 725, f.
' Bract. Note-book, pi. 1237 : ' Homines prioris S" Swithini . . . questi
fuerunt Dom. Regi.'
' Madox, Exch., i. 725, u; the 'Monstraverunt' ofthe men of King's
Ripton quoted above on the question of taUage. This matter of tallage could
certainly be treated as an alteration of services, and sent for trial to the
Common Bench.

eHAP.iiL] (^tr« of ' (mon0^ramttnC 103
requirement of the special case of manors alienated from The ' Mon-
the crown, on closer inspection it turns out to be a variation straverunt"
01 the peculiar process employed to insist upon a right king's own
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 1 265 :
'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 facereconsueverunt 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.'' 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
1393 a mandate of King Edward I to the Barons of the
Exchequer is entered in behalf of the men of Costeseye in
Norfolk who coinplained of divers grievances against Athel
wald 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 Athel
wald 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
1 Exch. Memoranda, Q. R. 48/49 Henry III, m. 11. The position of the
castle of Bamborough was certainly a pecuUar one at the time. C£ Close
Roll, 49 Henry III, m. 7, d.

I04 3^ncknt 'S)tm^0M' [EssayI;
high and low'. 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 counter
part 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 ofthe honour of Richmond.
There can be no doubt that the tenantry on the ancient
demesne had even better reasons for appealing to imme
morial 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^
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 inay 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.
' 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 vUlain socmen outside
the ancient demesne, of which more hereafter.
' 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 taUagia consueta et ipsi homines alia servicia et consue
tudines quas facere solent faciant.' (Pasch. et Trin., i John.)

Chap,

"I] MiknAtkn of (gogaf (]nattor0. 105

As the protection in point of services is nevertheless
distinctly affirmed by those writers, and as the Monstrave
runt appears in full working order in the time of Henry III
and even of John ', 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
strictjaw. 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 Alienation
manors of the ancient demesne were alienated by the Manors^^
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 2. In order to
^ Madox, Exch. i. 411, 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 RoU 13 Jo., 7, 10 b, Devenesc).
^ 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 pnoris 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.

to6 Mncknt <S)^mi0M, [essayl
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 '.
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^, and his bailiff con
tinued to exercise functions by the side of, and in con
junction with, the officers of the Abbot^. 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 irt
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*. 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^.
We find a similar state of things at King's Ripton. The
manor had been let in fee farm to the Abbots of Ramseyj
In case of a tenement lapsing into the lord's hands, it is
seized sometimes by the bailiff of the king, sometimes by
1 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 nunc edificiis carens vocatur le
Burystede iuxta Crulefeld prout fossatis includitur, et est locus nemorosus.'
* Stoneleigh Reg. f. 13 a : ' Isti duo tenent (burgagia in Warrwick) per
seruicium sustinendi unum plumbum in manerio de Stonle competens
monasterio Regis.'
' Placita de Quo Warranto, 778 : ' Item clamat quod BaUivus dom. Regis
in manerio de Stonleye nullam faciet districtionem seu attachiamenta sine
presencia Ballivi Abbatis.'
' See App. VI.
5 Stoneleigh Reg. 13 a : ' W. W. tenet unum burgagium per seruicium
inveniendi domino regi seniori domino de Stonle quartam partem unius
tripodis.'

Chap. IIL] 3^tknAtkn of (gogae (nl<tnor0. to;
the bailiffs of the Abbot'. The royal writs again are
directed not to the Abbot, but to his bailiff. The same was
the case at Stoneleigh^, and indeed this seems to have been
the regular course on ancient demesne manors^- This
curious way of ignoring the lord himself and addressing the
writ directly to his officers seems an outcome of the funda
mental 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 hot to have been alienated at all. Although alienated
by one king they were considered as liable to be resumed
by his successors*! And as a matter of fact such resump
tions were by no means unusuah 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 constitu
tion 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 \

^ King's Ripton Court Rolls, Augment. Off'. Rolls, xxiii. 94, m. 10 : ' Dicta
MatUdis 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
WiUelmum 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 iUam in manum suam. (Curia— in
festo Assumpcionis— anno supra dicto).' In the first case the seizure cor
responds 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 stiU lingering about the manor. The last case is one of escheat
or forfeiture.
' Stoneleigh Reg. 75 v : ' Item si aliquis deforciatur de tenemento suo et
tulerit breve Regis clausum baUiuis manerii versus deforciantes, dictum breve
non debet frangi nisi in curia.'
3 Natura brevium, 13 : ' BaUiuis suis.'
* Britton, i. 221 : ' Rois aussi ne porrount rien aUener les dreits de lour
coroune ne'de lour reaute, qe ne soit repellable par lour successours.'
' Stoneleigh Reg. 30 : ' Nos attendentes, quod huiusmodi alienaciones et

io8

Mncknt ®eitte0ne.

[Essay I.

Servicescertain on
RoyalManors.

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'. 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 ^. The notion from
which all inquiry consequent upon a ' Monstraverunt '
starts is always this, that the tenants were holding hy 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 pas;ses away from the king to some one
else ; it exists when the land is royal land and therefore

consuetudinum mutaciones eciam in nostri et heredum nostrorum preiudi-
cium et exheredacionem cedere possent, si manerium iUud in manus nostras
aliquo casu deuenerit sustinere nolumus sicut nee debemus manerium iUud
aut ea que ad illud pertinent aliter immutari quam esse solebant temporibus
predictis.' '¦ 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 baUiff"s. (Augmentation Court Rolls, xiv. 38). As to the trial
mentioned in the text see App. IX.
^ Stoneleigh Reg. 11 a : ' Precipio tibi quod sine dUacione deliberes
Abbati de Stonleia omnes terras et tenuras quas ego dedi et carta mea
confirmaui. Et de terra quam rustic! 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 valen
ciam.'

Chap. IIL] (^vH of ' qaon0tvAvttm(: 109
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'; 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 {incrementuni) levied in addition to the old ' ferm '
{assisa; redditus antiquitus assisus), can be easily reconciled
with this doctrine^. 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 develop
ment 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^.
This serves to explain the procedure followed by the Trial of
court when a question of services was raised by a writ of < Monstra-
' Monstraverunt.' The first thing, of course, was to ascer- verunt.'
tain whether the manor was ancient demesne or not, and
^ Bracton, f. 209 : 'Ad quemcumque manerium peruenerit.'
^ Madox, Firma Burgi, 54 ; Pipe RoUs, passim. Cf. Rot. Cur. Regis Ric,
p. 15 : ' Homines de Kingestone — c. sol  pro respectu tenendi viUam
suam ad eandem firmam quam reddere solebant tempore Henrici Regis.'
' Madox, Exch. 1437, z : ' Homines de Lechton x marcas pro habenda
inquisicione per proxima halimota et per legales milites et aUos homines de
¦visneto, quas consuetudines ipsi fecerunt tempore Henrici Regis Patris.'
(Pipe RoU, 4 John.). Cf. 442, a : ' Homines de Stanleya reddunt compotum de
uno palefrido,ut inquiratur per sacramentum legalium hominum, quas consue
tudines et quae servitia homines de manerio de Stanleia facere consueverunt
Regi Henrico patri Ricardi Regis dum essent in manu sua.' (Pipe RoU,
9 John.)

IIO Mncknt ®eme0n^» [Essayi.
for this purpose nothing short of a direct mention in
Domesday was held to be sufficient'. 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 pos
sessed of the manor. In principle it was always considered
that such had been the services at the time of the Conquest^,
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^
' Y. B., Trin., 49 E. Ill, pi. 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 U 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 paroUe 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 Ediaardi Regis Anglie issint par le recorde et par
les chartres est expressement reherce par le roy qui ore est, que WUliam
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 paroUe 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 paroU
dedimus mes il auer par parole de confermement, issint que il nest my proue
par ce chartre que Us auoient la possession, pur ceo que les chartres poient
estre eff'ectuels aauterentent, 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 fiierent
nonsues.' ^ Fitzherbert, Abr. Cause de remover pie, 18 (Y. B., M., 21 Edw. Ill) :
i Wilby : 11 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 plusieurs services sont
demandez que ces auncestres ne solent faire en eel temps.'
^ Corani Rege, Tr. 3 Edw. I, m. 14, d : * Et unde predicti homines (dS
Kyngesripton) queruntur quod temporibus Cnout regis quo manerium illud
fuit in manu dicti antecessoris sui tenuerunt tenementa sua per seruicia sul?*

Chap III] (^r« of ' (mott0ftrave»rtttt6' III
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'. Metingham de
manded that the claimants should make good their
contention even for a single day in Richard Cceur de
Lion's time 2, The men of Wycle combine both asser
tions 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^- Now all that has been said hitherto applied to 'the tenants Nature of
tenancy in
ancient
scripta, videlicet reddendi pro qualibet virgata terre 5 soUdos, etc. Et omnes demesne.
.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 ante
cessores suos ad dandum rele^vium 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 nee de quo breue de recto currit nee
aliqua verificacio per patriam fieri possit. . . . Et Reginaldus et alii bene cog
noscunt 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 domini-
corum domini Regis non habet prescriptionem temporis, petunt judicium
si [racione?] alicujus longiqui termini debeant ab actione excludi sua.'
^ Y. B., M., IS 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 taUle,
etc. Devoms nous enguerre (enquerre corr.) si vos feistes touz services en
temps le Roy S'. Edward, ou non de temps que vos avez pris title ? Devon :
Sir navyl (nainyl corr.), mais nous disons qe touz les tenants qui tindrent en
temps S'. Edward tinderent, etc. (par certains services^ . . . tanqe a ore xy
ans devant le brief purchace etc. e ceo puit home enquere.'
'^ Y. B., 21/23 Edw. I, 499 et sqq.
3 Coram Rege, Pasch. i Edw. II, m. 26 : ' Postquam idem manerium ad
manus antecessorum predicti Maugeri deuenit usque ad tempus memorie,
videlicet temporibus regum Ricardi, Johannis et statum ilium toto tempore
predicto pacifice continuaverunt et habuerunt,' Coram Rege, M. 5 Edw. II,
m. 77 : ' Unde queruntur quod cum ipsi homines et eorum antecessore?
tempore Regum AngUe progenitorum domini Regis nunc, videUcet tempore
Regis WiUelmi Conquestoris et WiUelmi Regis fiUi sui et eciam tempore
Regis Henrici primi solebant tenere terras suas per quaedam certa seniicia
videUcet,' etc.

112 3S,ncknt ®eMt^0n^. [essayi.
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 war
ranted by the authorities. Those authorities commonly
speak of ' men ' or ' tenants in ancient demesne ' without
any further qualification'. 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 con
fusion 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_ axule^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^.' Now such a description seems strangely out of
keeping with the history of the tenure. Blackstone speaks
of privileged copyhold as descended from privileged villain-
age^; 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*. And
' I wiU here cite Bract. Note-book, pi. 1237,33 an instance, although there is
hardly any call for quotation on this point.
" Law of Copyhold, 8. Cf. the same author's Tenures in Kent, 182.
' Blackstone, Law Tracts, ii., especially pp. 128, 129.
* Bracton: 'liberi de condicione . . . tenentes viUenagium.' Britton;
' hommes de franc saunc'

Chap. IIL] £^^00^0 Of ZtnAntt^, I 1 3
to take up the special point mentioned by Mr. Elton-
conveyance by surrender and admittance is a quite neces
sary feature of the tenure ' : conveyance by charter makes
the land freehold and destroys its ancient demesne con
dition 2. 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 pro
pounded by Mr. Elton in conformity with certain modern
treatises and decisions.
We may start with the observation, that privileged Classes of
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^. 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 feoff
ment and charter is treated, as has just been pointed out
as establishing its freehold character and subjecting it to
the ordinary common law procedure*. On the other hand,
' 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
finem cum domino prout possunt conuenire. . . . Item extraneus non debet
vocari ad warantum in placito terre in curia de Stonle quia sokemanni non
possunt feoff'are aUos per cartas cum ipsi nuUas habeant de rege. Set si
quos feoffauerint de licencia dommi 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.
' Placitorum Abbrev. 233, Berks. Cf. Britton, i. 287, note c.
' Bracton, f. 7.
* 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 feofatiis est de
predicto tenemento de quodam WiUelmo Harold per cartam suam quam
profert. . . . Et juratores quesiti si antecessores ejusdem WUlelmi feofati
VOL. I. I

114 3^ncknt <S>tmt0ni> [Essayi.
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 '. In trials it is quite a common
thing for a lord, when accusedjgf having alts£ed.the. services,
to plead that the plaintiffs were hjs vill.ains_ to .bejtreated 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 cer
tainty, which ought to be taken for granted^. 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 ^ It is of
fuerunt per cartam vel si aliquis de tenura ilia unquam placitaverunt per
diversa brevia vel non, dicunt quod non recolunt.'
' 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 debe-
bant . . . redimere sanguinem suum et dare auxilium domino ad festum
S". Michaelis scilicet ayde et facere braseum Domini et alia seruicia seruUia.'
As to some details, see Dugdale, Antiquities of Warwickshire, i. 176.
' Coram Rege, Pasch. i Edw. 11, m. 26 : ' (Maugerus) defendit vim et in
juriam quando, etc. Et dicit quod qualitercunque iidem homines asserant
se et antecessores suos tenentes, etc. certa seruicia dominis de Wycle. antei
cessoribus ipsius Maugeri et sibi fecisse et facere debere, quod omnes ante
cessores sui domini de eodem manerio extiterunt seisiti de predictis homii
nibus 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 : ' Nee dedici potest quia tenentes de
antiquo dominico certa seruicia et certas consuetudines tenentur facere et
non ad voluntatem dominorum. '
' Y. B., M., 15 Edw. II, p. 455 : ' Bouser: Auxint bien sont tenans en
auncien demesne ascuns vileins et ascuns autres come.ailleurs et les soke
mans plederent par le petit brief de droit et les vileyns nient. Herle: II
semble que assets est il traverse de votre brief, car vous dites que vous tene?

Chap. Ill,] t2A00i^0 of ZtnAntv^* 115
considerable importance to note that the difference between
villaiiia^urfi..andjdllaias,.priviLeged. was. sometimes con-
nected with the distinction between theJord'sJpmp.;rip and
the tenant's land in the manor'. 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 ^. 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
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, pi. 1230.
^ Bracton, 209 : ' Item est manerium domini regis et dominicum in mane
rio, et sic plura genera hominum in manerio, vel quia ab initio vel quia mutato
viUenagio.' The meaning of this badly worded passage is made clearer by
a comparison with f. 7 : 'In dominico domini regis plura sunt genera homi
num ; sunt enim ibi servi sive nativi ante conquestum, in conquestu, et post,
et tenent villenagia et per villana servitia et incerta qui usque in hodiemum
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 vUlana, per quae supradicti (villani socmanni) et non in villenagio,
nee sunt servi nee fuerunt in conquestu, ut primi, sed per quandam con
ventionem quam cum dominis fecerunt.' Cf. Elton, Tenures of Kent, 180.
' 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; issint ne sont ils forsque tenants a volunte le seigneur.'
I 3

ii6 3^ncknt ®eme0ne. [essayi.
make distinctions. It speaks of three species of socage —
free, 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' 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 protec
tion of copyhold in the manorial court.
Villain In the time of Henry III and of the Edwards the nature
socage. ^|- j^jTij-jgjjj. demesne tenure was better understood. At
the close of the thirteenth century the lawyers distinguish
three kinds of men — free, villains, and socmen^. In order to
be quite accurate people spoke of villain socmen or tittle
socage^ in opposition to free. But even at that time there
were several confusing features about the case. The cer
tainty 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 thepeculiar
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 sur
render in contrast with conveyance by charter seems to give
the necessary material for the distinction between it and free
hold *. But still the fundamental notion of free men holding
' Natura Brevium, i. 105. Cf. 16.
^ Y. B., 21/22 Edw. I, p. 499 ; ' Treis maners de gents.'
' Bracton, f. 209 ; Fitzherbert, Monstrav. 3 (Pasch. 41 Edw. Ill) : ' Belkmf:
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.'
* Stoneleigh Reg., 32: ' Et quod in eodem manerio sunt diuerse tenure
secundum consuetudinem manerii illius totis temporibus retroactis usitatara,
videUcet 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 aUquis tenens
eiusdem tenure terram suam aUcui 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 Ucenti»

Chap. III.] (^xtiAXn ^OCAC^t, H?
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'
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 creating 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 ^- In con
nexion with this the court rolls testify to the particular care
taken to control any intrusion of strangers into the bound
aries of a privileged manor *. This was done primarily in
the interests of the lord, but the tenantry also seem to have
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 sunt tenentes eiusdem
manerii ad voluntatem eiusdem Abbatis. Et si quis eorundem tenendum
terram sic ad voluntatem tentam alienauerit in feodo, quod liceat dicto Abbati
terram Ulam intrare et iUam tanquam sibi forisfactam sibi in perpetuum
retinere.' 1 A comparison of the data in the Stoneleigh Register and in the RoU is
given in App. VI. Cf. Bract. Note-book, pi. 834 : ' Legales homines de manerio
de Havering.'
' Coram Rege, Mich. 5 Edw. I, m. 77 : ' (Juratores) quesiti si predicti Mar-
geria et alii et omnes antecessores a tempore quo non extat memoria terras
suas successiue de heredibus in heredes tenuerint uel ipsi aut aliquis ante
cessorum suorum sunt vel fuerint aduenticii, dicunt quod ignorant."
3 Court RoUs of King's Ripton, Augment. Off: xxiii. 94, m. 7 : ' Memor
andum quod concessum est Rogero de Kenlowe habendum introitum ad Ca-
terinam filiam Thome prepositi cum uno quarterio terre in villa de Ryptone
Regis pro duabus soUdis 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 viUe.' A. 1. r. Edw.

ii8 Mnckni ©ertte0ne. tEssAvt.
sometimes been jealous of their prerogatives', and it is only
in the course of the fourteenth century that they begin to
open their gates to strangers, ' adventicii^.' 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
xxiu, m. 8, V : ' Nicholaus de Aula reddit sursum unam dimidiam acram
terre ad opus Willelmi ad portam de Broucton . . . . Et preceptum pre-
posito 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.' '¦ Court RoUs of King's Ripton, Augment. Off. xxui. 94, m. 15 : ' Curia de
Kingsripton tenta die Jovis proxima post translacionem S". Benedicti anno
r. r. E. xxix" et dom. Joh. [abb. xv. Venit] WiUelmus 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 [viUa ad opus filiorum] Rogeri de KeUawe extranei
legitime procreatorum de Katerina filia Thome prepositi que est de con[di-
cione sokemannorum ?] bondorum de Kingesripton. . . . Rogerus de KeUawe
extraneus qui se maritauit cuidam Katerine filie Thome prepositi de Kinges
ripton que est de nacione et condicione eiusdem ville venit et petiit in curia
nomine filiorum suorum ex legitimo matrimonio exeuntium de corpore pre-
fate Katerine illas vi acras terre. . . . (Juratores dicunt) quod nichU inde
sciunt nee 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 baUiuis quod die in . . . faciant de
eisdem juratis xl solidos ad opus domini.'
^ 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 inqui
rendum qui sokemanni huiusmodi terras et tenementa ibidem alienauerunt
huiusmodi forinsecis aut extrinsecis et quibus,' etc. Ct the Statute of 1
Richard II, Stat. i. cap. 6. It was altogether a dangerous transaction for
the socmen, because they were risking their privUeges thereby. It must
have been lucrative.

Chap. III.] (^mAXn^OCA^C II9
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 Ill's
reign, and in 1379 judgment was given against the plain
tiffs 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 '. 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

' 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.'

I20 Mncknt ®ettte0ne. [essayi.
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 1337-8. He says: 'Nota
de villanis Henrici de Tracy de Tawystoke qui nunquam
fuerunt in manu Domini Regis nee antecessorum suorum
et loquebantur de tempore Regis Edwardi coram W. de
Wiltona'.' 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
* Bract. Note-book, pi. 1237.

Chap. IIL] (^mAXn ^OCrtge. 121
the fact that they were always capable of leaving their tene
ments and going away at pleasure.
Bracton does not restrict himself to this statement of the Bracton's
case ; he adds a few lines to give a historical explanation expW^
of it. ' At the time of the Conquest' says he, ' there were 'ion-
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 '.'
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 ' poten-
tiores,' 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, notwith
standing its peculiarities, is one species of a mode of hold
ing which was largely represented everywhere, namely
of the status of free men holding in villainage ; this
condition had been strongly affected if not actually pro
duced 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
1 Bracton, f. 7.

122

3Rndint ©ettte0ne.

[Essay L

Saxonorigin of ancient
demesnetenure.

procure restitution. Their complaints gave rise to a dis
cussion of the matter before the king, and it was held that
nothing could be claimed by these people by way of suc
cession from the time preceding the Conquest and that
actionable rights could originate only in deeds granted by
the Norman lords'. 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 Domes
day 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 rein
forces 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
' Dialogus de Scaccario, i. lo ; ' Post regni conquisitionem, post justam
rebeUium subversionem, cum rex ipse regisque proceres loca nova perlustra-
rent, facta est inquisitio diligens, qui fuerint qui contra regem in beUo dimi-
cantes 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 nee 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, nee 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 interveni-
ente pactione legitima poterant obtinere, UUs inviolabili jure concederentur ;
ceterum autem nomine successionis a temporibus subactae gentis nihU sibi
vendicarent.'

Chap. III.] ^^0 ^rt^Olt Ongttt. 123
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 corltrol 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'; the
tenants, whenever they want to make a solemn claim, set
forth their rights from the time of St. Edward^, or even
Cnut*- 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 par
liament. 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*, 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
1 Stoneleigh Reg., 4a: ' Que quidem maneria existencia in posses
sione et manu domini regis Edwardi per universum regnum vocantur
antiquum dominicum corone regis Anglie prout in libro de Domesday
continetur.' ^ ' Loquebantur de tempore S*' Edwardi Regis coram W. de Wilton.'
' The men of King's Ripton.
* 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 frora Normandy. Whatever the position of the
viUains 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

124 Mncknt ®ettte0ne. [essayi.
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'. 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 considera
tions and obligations which did not bind his subjects?
In view of such questions one is tempted to treat the pro
tection 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
sense the feudal law of England was the hardest of aU in Westem Europe,
and this on account of the invasion.
1 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 shaU have to speak about the mode of holding the courts in another chapter.

Chap. IIL] ^^0 ^d^Olt OHgitt. 1 25
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 con
sidered 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 par
ticular 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 per
sonally 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 organisa
tion 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 villain
age 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.

126 3^ncknt ®^ttte0ne,
I may be allowed to sum up the conclusions of this
chapter under the following heads : —
I. The law of ancient demesne is primarily developed in
regard to the manors in the king's own hand.
3. The special protection granted to villain socmen in
ancient demesne is a consequence of a certainty of con
dition 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 Con
quest as the connecting link between the Norman and th^
Saxon periods.

CHAPTER IV.

LEGAL ASPECT OF VILLAINAGE. CONCLUSIONS.
I HAVE been trying to make out what the theories of the Method of
lawyers were with regard to villainage in its divers ramifica- JfJnf"^''
tions. 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 super- ^
structure, 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 im
portant 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 inter
esting 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

Uncer
tainty and
contradictions of
legaltheory.

128 Btc^Ai 3S.0put of (^xttAxnAC^t, [Essayi.
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 stratifica
tion 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 treat
ment 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 matched 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

Chap. IV.] ^nfitn^nu of BAw^tv0, 129
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 organisa
tion of justice. The procedure in questions of status is
characterised by outrageous privileges given to the lord
against a man in 'a villain nest,' andiy 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 recon
ciliation 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 Influence
to distinguish different layers in its formation. To begin ° ^^y^"-
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 peculi- ^
arities 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
more or less to a generally accepted standard. The influ
ence of the lawyers was exactly similar in regard to subdi
visions 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
clearjlefimtions to go by, the lawyers are actually driven
VOL. I. K

I30

Bt^Ai Si0ptci of ($xi(AxnAQi, [Essayi.

Roman
law, Nor
man law,
•"and royal
jurisdic tion.

Social bias
of legal
theories.

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 jnay
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 ' ; 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 im
portant 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 in
genuity 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 con-
'¦ Brunner, Entstehung der Schwurgerichte, has made an epoch in the
discussion of this phenomenon,

Chap. IV.] ^itfPttence of Conque0f. 131
elusion 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 agree
ment 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 Influence of
feudalism, as it was transmitted through the action of its <=°°1"^5'-
lawyers. But it may be viewed in its direct consequences,
which are as manifest as they are important. In England,
feudahsm in its definite shape is bound up with conquest ',
and it is well known that, though very much hampered on
the political side by the royal power, it was exceptionally
coniplete 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_p£as5.ntry was- worked out. If we look for com
parison 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
1 I shall, treat at length ofthe Norman Conquest in my third essay.
K 3

132 BtO^At <S0peC^ of (^xitAXnAO^t, [Essay I.
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 con
tinent, 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.
English 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 con-
nexign_with a manor beconies Jhe chief means of establish
ing and proving seisin ofthe 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_Qf 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

feudalism.

Chap. IV.] ^nQSx0$ S^^bAtX0m, 133
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 Survivals
owe their origin to the action of the feudal system and to feudatcon-
the action of the State, which rises on the ruins of the dition.
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^rish to oppose a social order grounded on feudalism
to a social order which was only preparing for it ancl
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 in-

134 Bi^At ^01pUt of .(^HiAXnA^t, [EssayI.
ability of a master to put a slave by a mere act of his will
on the same level with free men.
Elements However this may be, bur survivals arrange themselves
o ree om. ^,,j^j^ ^j^j^ s;j.jgjg possible excerption in the direction of free
dom. 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 indis-
solubl}' 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
enforcg, them because feudalism disables the State and
prevents it from interfering. The political root of thd
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

Chap. IV.] dElnci^n^ <S)mt0nt. 135
lawyers of Norman training. What share is to be assigned
to their formal influence ? and what share comes from that
old stock of ideas ahd facts which they could not or would
hot destroy ? We may hesitate as to details in this respect.
It is possible that the famous paragraph of the so-called
La.ws of William the Conqueror, prescribing in general terms
that peasants ought not to be taken from the land or
subjected to exactions', is an insertion ofthe Norman period,
although the great majority of these Laws are Saxon glean
ings. 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 to
wards 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 Ancient
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
^ Leg. WiU. Conq. i. 29 (Schmid, p. 340).

136 B^qa2 3^0Tput of (^xi(AxnAQt, [Essayi:
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 ex
ception, 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.
Clues as to A careful analysis of the law of ancient demesne
dirion'of "^^^ ^^^" S^^^ ^^ valuable clues to the condition of the
Saxon 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 in
direct 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 im
portant 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.

Chap. IV.] Mncknt <^mi0M, 137
i 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 pre
clude 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.

CHAPTER V.

THE SERVILE PEASANTRY OF MANORIAL RECORDS.
Manorial It would be as wrong to restrict the study of villainage
¦ to legal documents as to disregard them. The juris
prudence 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 ^. 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 ;
' Thorold Rogers has made great use of this last class of manorial docu
ments in his well-known books.

QUanomP ®octtttteni0. 139
Bracton, for instance, mentioning two notable deviations
from general rules in the department of law under dis
cussion. 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 i. In Herefordshire the
master was not bound to produce his serfs to answer
criminal charges ^ 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 arti
ficial arrangement from above. We must be careful how
ever, 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
he to proceed from these broad statements to an inquiry
into the particulars of the case.
1 Bracton, 271 b. ' Bracton, 124.

140

^evvife {()cA0Antv^,

[Essay I.

Termino
logical classifica
tion.

\/

Terms to
indicatesocial standing.

The study of manorial evidence must start from a dis
cussion 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 differ
ence of services, and a fourth from a difference of hold
ings. 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 servi
tude. 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 encroach
ments 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. It
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 oppo
sition to other terms, it stands exactly as villanus, that is
to say, it is contrasted with libere tenens ^

> Cartulary of Malmesbury (Rolls Series), u. 186 : ' Videlicet quod pre
fatus Ricardus concessit praedictis abbati et conventui et eorum tenentibus,
tam rusticis, quam liberis— quod ipsi terras suas Ubere pro voluntate sua
excolant.'

Chap, v.] ' (piefantt0 ' Anb '^^tm0: 141
The fundamental distinction of personal status has left Villains
some traces in terminology. The Hundred Rolls, P^f'°"^"''
especially the Warwickshire one ^ mention servi very often.
Sometimes the word is used exactly as villanus would be 2.
Tenere in servitute and tenere in villenagio are equivalent ^.
But other instances show that servus has also a special
meaning. Cases where it occurs in an ' extent ' imme
diately after villa^ius, and possibly in opposition to . it, are
not decisive *. 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 expres
sions are used in the same sentence. The description of
Ipsden in Oxfordshire has the following passage : item
dictus R. de N. habet de proparte sua septem servos villanos.
(Rot Hundr. ii. 781, b: cf 775, b, Servi Ctistumarii)
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. ' As to the Warwickshire Hundred RoU in the Record Office, see my
letter in the Athenaeum, 1883, December 22.
^ Rot. Hundred, ii. 471, a : ' Libere tenentes prioris de Swaveseia. . . . Hen
ricus Palmer — i mesuagium et 3 rodas terre reddens 12 d. et 2 precarias.
Servi Adam scot tenet 10 acras reddens 4s. et 6 precarias .... Cotarii . . . .'
' 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.'
¦" Rot. Hundred, ii. 690, 691 : 'ViUani — servi — custumarii. Et tenent ut
vUlani, ut servi, ut libere tenentes.' Rot. Hundred, ii. 544, b : ' De custu-
mariis Johannes Samar tenet i mesuagium et i croft .... per servicium 3 sol.
2 d. et secabit 2 acras et dim., falcabit per i 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.'

142 ^ervif^ ^tA0Antv^, [essayi
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 \
and the feminine for villain is nieve {nativa). But while
villanus is made to appear both in a wide and in a re
stricted sense, and for this reason cannot be used as a
special qualification, nativus has only the restricted sense
suggesting status^. In connection with other denomi
nations nativus is used for the personally unfree ^. When
we find nativus domini, the personal relation to the
lord is especially noticed *. The sense being such, no
wonder that the nature of the tenure is sometimes de
scribed in addition ^ 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 ^. In this sense again the Domesday

' 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.'
^ 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 viUani
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.
^ Domesday of St. Paul's, 157 (Articuli ¦visitationis) : ' An vUlani sive cus
tumarii vendant terras. Item, an nativi custumarii maritaverunt filias — vel
vendiderint vitulum —vel arbores — succidant.' A Sufi'olk 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 .... Ante
cessor recognovit se nativum domini abbatis in curia domini regis."
* Cartulary of Eynsham in Oxfordshire, MS. of the Chapter of Christ Church
in Oxford, N. 27, p. 25, a : ' In primis WUlelmus le Brewester nativus domini
tenet de dictis prato et terris. . .'
* Eynsham Cartulary, 49, b : ' Johannes Kolyns nati^ras domini tenet i ¦vir-
gatam terre cum pertinenciis in bondagio.'
^ Cartulary of St. Mary of Worcester (Camden Series), 15, a : ' Nati^vi, cum
ad aetatem pervenerint nisi immediate serviant patri — faciant 4 benripas et
forinsici similiter.' Survey of Okeburn, Q. R. Anc. Miscell. Alien Priories,
f : ' Aliquis nativus non potest recedere sine licencia neque catalla amo-

Chap, v.] ^ * (J^a(WU0.' 143
of St Paul's speaks of ' nativi a principio ' in Navestock ^-
But the fact of being born to the condition supposes perT
sonal subjection, and this explains why nativi are sometimes
mentioned in contrast with freemen 2, 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 native habendo. One such pedigree pre
served in the Record Office is especially interesting, be
cause it starts from some stranger, extraneus^, who came
into the manor as a freeman, and whose progeny lapses
into personal villainage ; apparently it is a case of vi Iain-
age by prescription.
The other- -.subdivision of the class — freemen holding Free men
unft£eJand_*::;:liaa_no.. special de-n-O.mination. This deprives vOkin^
us of a very important clue as to the composition of the 1^°^.
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
vere nee extraneus libertatem dominorum ad commorandum ingrediat sine
licentia.' 1 Domesday of St. Paul's, 80 : ' Nativi a principio. Isti tenent terras
operarias.' ^ Queen's Remembrancer's MisceUanies, 902-62 : ' Rotuli de libertate de
Tynemouth, de Uberis hominibus, non de nativis.'
2 Queen's Remembrancer's Miscellanies, 902-77: 'Nativi de Sebrighte-
worth (Proavus extraneus).' See App. X.
* Warwickshire Hundr. Roll, Queen's Remembrancer's MisceUaneous
Books, 29, 19, b : ' Johannes le Clerc tenet i virg. terre pro eodem sed est
libere condicionis.' Augment. Off., Duchy of Lancaster, Court RoUs, 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.'

144

0tvmk ^iA0Antvp,

[Essay I.

Terms to
indicate economiccondition.

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 con
dition of the peasant, vary a good deal according to locali
ties. 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 can
not obtain the uniformity and currency of literary names
employed and recognised by official authority. The ver
nacular equivalent for villanus seems to have been niet or
neat^. It points to the regular cultivators ofthe arable,
possessed of holdings of normal size and performing the
typical services of the manor ^- 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,
ahd men of this category form the main stock of the
manorial population. The Rochester Custumal says ^ that
neats are more free than cottagers, and that they hold
' Glastonbury Inquisitions of Ii8g (Roxburghe Senes), 48: 'Radulfus
niet tenet dimidiam virgatam.'
^ 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 t virgatam terre medietatem pro ii sol. et dono et pro alia medietate
operatur quecumque jussus fuerit sicut neth.' Cartulary of Abingdon (Rolls
Series~i, ii. 304 : ' IUi sunt neti de villa. Aldredus de Brueria 5 sol. pro
dimidia hida et arat et varectat et seminat acram suo semine et trahit foenum
et bladum.' Ibid. ii. 302 : ' Bernerius et filius suus tenent unam cotsetland
unde reddunt cellario monachorum 6 sestaria mellis et camerae 31 d.' — 'Z)e
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.'
^ 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.'

Chap, v.] ' Q^^aC (Kefiittr/ HS
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 i, and, being the
main population of the village, neats are treated some
times as if they were the only people there 2. 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 ^ 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 widdy spread. It is to be found con
stantly in the Danish counties *. The original meaning
is that of cultivator or ' husband ' — the same in fact as that
' Cartulary of Shaftesbury, Harl. MSS. 6i, f. 60 : ' Et habebit unum animal
quietum in pastura, si est net, et de aliis herbagium. Et si idem fuerit cot-
setle 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 Nicho
laus tene,t 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 coUocare messem vel . . . aliud facere . . .
dum Neth messem attrahat . . . pannagium sicut Neth.' Ibid. 89 : 'Si mo-
riatur cotsetle pro diviso dabit 12 d. et vidua tenebit pro iUo id divisum tota
vita sua. Si moriatur neatus dabit melius catellum et pro hoc tenebit quietus.'
2 Glastonbury Inquis. 51 : 'Et nieti tenent 9 acras unde reddunt 3s.'
Ibid. 47 : ' Nieti habent unum pratum pro 5 s.'
^ Glastonbury Inquis. 105 : ' Ernaldus buriman dimidiam virgatam, lohannes
burimannus dimidiam virgatam.' Cf. Custumal of Bleadon, p. 189 ; Cartulary
of Shaftesbury, Hari. MSS. 61, i. 45.
* 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 settle
ments outside the Denelaw.
VOL. I. ^

146 ^^vmk p^A0AnitTf, [essayi.
of gebzir and boor. Feudal records give curious testimony
of the way in which the word slid down into the ' bond
age ' of the present day. We see it wavering, as it were,
sometimes exchanging with servus and villanus, and some
times opposed to them ^. Another word of kindred mean
ing, chiefly found in eastern districts, is landsettus, with the
corresponding term for the tenure ^ '; this of course ac
cording to its etymology simply means an occupier, a man
sitting on land.
Terms to Several terms are found which have regard to the nature
the nature °f services. Agricultural work was the most common and
of services, burdensome expression of economical subjection. Peasants
who have to perform such services in kind instead of pay--
ing rents for them are called operarii ^- Another designa
tion which may be found everywhere is consueiudinarii or
custumarii^. 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 hold
ing in villainage by customary work *. As the name does
not give any indication as to the importance of the holding
' 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. I bondum qui ten. 20 a. Custumarii, Id. Al. habet i 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.'
^ 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. Ed
mund'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'
' Domesday of St. Paul's, 17 : ' Item omnes operarii dimidiae ¦virgatae de
bent invenire vasa et utensUia ter in anno ad braciandum.' Cf 28.
* Rot. Hundred, ii. 422, 423. Cf. 507, a : ' Libere tenentes . . . Nicholaus
Trumpe 3 a. terre cum mesuagio et red. per ann. 20 d. Custumaru ... Ni
cholaus Trumpe ten. i a. terre et redd. 2 sol.'
" Exch. Q. R. Misc. Alien Priories, f . (ChUteham) : ' . . . . Redditus villa-
norum de 126 vUlanis 41 libre, 743. nd. Item sunt 70 custumarii qui de
bent arare bis per annum cum 17 carucis .... Item sunt 25 vUlani qui debent
herciare quilibet eorum per 2 dies,' etc.

Chap, v.] ' OptVAVXX,' &(C, 147
a qualification is sometimes added to it which determines
the size of the tenement ^.
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'^,
are mostly selected among the customary holders, and
enjoy an immunity from ordinary work as long as they
have to perform their special duty ^. On some occasions the
records mention gersumarii, that is peasants who pay a
gersuma, a fine for marrying their daughters *. This pay
ment 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 Terms to
of the holding. In one of the manors belonging to St. Jhe'si^ze
Paul's Cathedral in London we find hidarii^. This does°^*5
not mean that every tenant held a whole hide. On the "^'
' 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 carcasiura multonis, et unum panem ad Natale.'
^ Cartulary of Malmesbury (Rolls Series), i. 154, 155. Cf. i. 186, 187.
Cartulary of St. Mary of Worcester (Camden Society), 43, b; Rot. Hundred.
"¦ 775, b.
' Rot. Hundred, ii. 602, a. Cf. Exch. Q. R. Alien Priories, f : ' Item sunt
in eadem ¦villata de Wardeboys 6 dimidias virgatas — que vocantur Aker-
mannelondes, quorum W. L. tenet | virgatam pro qua ibit ad carucam Abbatis
si placeat abbati vel dabit sicut Uli qui tenent 6 Maltlondes preter 15 d.' Rot.
Hundred, i. 208 : ' Utrum akermanni debent servicium suum vel servicu re
dempcionem.' * 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, Hari. 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 PoweU that landsettus (land-seti),
as well as akermannus (aker-maitr) and gersuma (gOrsemi), are certainly
Danish loan-words, which accounts for their occurrence in Danish districts.
= 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 viUani, their distinction being probably only this, that they
were jointly, as weU as severally, bound to perform the services due from
the hide of which they held part.'
L 3

148 • ^^VVik ^tA0AntV^. [Essay I.
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 ^ 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^. Peasants possessed of
half virgates are halfyerdlings accordingly. The expres
sions ' a full villain * ' and ' half a villain ' must be under
stood 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 *.
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, cotta-
giarii, cottarii^, etc.). They get opposed to villains as to
owners of normal holdings ®. Exceptionally the term is
used for those who 'have very small holdings in the open
' 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 tantum
modo 4 ¦virgatarii et rector, dominus habet in manu sua 7 porciones dicti
prati.' '' Cartulary of Battle, Augmentation Ofiice, Miscell. Books, 57, f 35, s ;
'Yherdlinges .... custumarii.' Ibid. 42, b :' Majores ErdlingessciL^virgarii.
Halferdlinges (majores cottarii) Minores cottarii.'
^ Black Book of Peterborough, 164 : 'In Scotere et in Scaletorp — 24 plenarii
viUani et 2 dimidii villani— Plenarii viUani operantur 2 diebus in ebdomada.'
' Glastonbury Inqu. (Roxburghe Series), 23 : ' Operatur ut alii ferUngseti.'
' 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 tenen
tibus ad manerium Berthonae praedictae per annum de coteriis cum curtil-
lagiis in suburbio Gloucestriae quorum nomina non recolunt 29 soiidos 7 d.
de redditu assiso.' Ibid. in. 116: 'Cotlandarii: Johannes le Waleys tenet
unum mesuagium cum curtiUagio et faciet 8 bederipas et 3 dies ad fenum
levandum, et valent I3|d.'
« Norfolk Feodary, Additional MSS. 2, a : ' Et idem Thomas tenet de pre
dicto Roberto de supradicto feodo per predictum servicium sexaginta me-
suagia ; 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.

as
termino-

Chap, v.] (ge0ttf(0 A0 to ^eminofo0g. 149
fields. In this case the authorities distinguish between
greater and lesser cotters \ between the owners of a ' full
cote ' and of ' half a cote 2.' The bordarii, so conspicuous
in Domesday, and evidently representing small tenants of
the same kind as the cottagers, disappear almost entirely
in later times ^.
We may start from this last observation in our general Results
estimate of the terminology. One might expect to find }°gy'
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 gebiir. 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 ' bordierl 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
» Cartulary of Battle, Augment. OfSce, Misc. Books, 57, f 37, b : ' Virgarii
.... Cotarii, qui tenent dimid. virgatam.' Ibid. 36, b : ' Cottarii majores
et minores.'
2 Glastonbury Inquis. (Roxburghe Series), 114 : ' Rad. Forest. \ cotsetland
pro 18 d. et operatur sicut dimidius cotarius sed non falcat.'
" Glastonbury Inquis. (Roxburghe Series), 14 : ' Predictus W. habet tres
bordarios in auxUium officu sui. IUi 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.

I50 #emfe (pea0ait(rg. [essayi.
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 v/ell 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^. 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 be
tween 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.
Rights of Our next object must be to see in what shape the rights
the lord. Qf ^jjg Jqj.^ ^j.g presented by manorial documents. All
tion. expressions of his power may be considered under three
different heads, as connected with one of the three funda-
' 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.

Chap, v.] (JS^X^U^ Of tU BoVb. I5I
mental 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 ihe politi-
cal sway conferred by feudal lordship. It may be difficult
to distinguish in the concrete between these several rela
tions, 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 Sale of
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 ^- 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 manu
missions 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 ^. 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
1 Thorold Rogers, History of Agriculture and Prices, i. p. 71.
2 Glastonbury Cart., Wood MSS., i. f 225, b (Bodleian Libr.): ' Noveiit
universitas vestra me vendidisse domino Ricardo vicario de Domerhara
Philippum Hardyng nativum meum pro 20 solidis steriing unde ego per
sonam ipsius PhUippi ab omni nativitate et servitute liberavi.' Cf Gloucester
Cartulary (RoUs 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.

152 ^aVXk ^tA0AntV^, [Essay I.
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 be
tween the cases when such trade comes into being, and
those when it does not. The essential condition for com
mercial 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, how
ever 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
llis 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 com
mercial 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 transac
tions possible by its protection. In most cases, however,
the influence of moral, economical, and pohtical 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

Chap, v.] * {^tVCUtJ 153
proof in questions of status on the side contending against
such liberty.
But not all the consequences of personal servitude could Merchet.
be removed in the same way by the conditions of actual life.
Of all manorial exactions the most odious was incontest
ably the merchetum, a fine paid by the villain for marrying
his daughter^- 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 mili
tary 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 re
tainer. The merchetum must be paid for every one of the
daughters, and even the granddaughters of a villain ; it
had nothing to do with succession, and sprang from per
sonal 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 2. When the case is mentioned
» Glastonbury Inquis., tempore abb. Michaelis, Addit. MSS. 17,450, f. 7 :
' Petrus filius Margarete tenet virgatam terre . . nee 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 quUibet praepositus habeat potestatem conce-
dendi 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 baUivi expectasset in partibus remotioribus
agentis casu interveniente forte nunquam gauderet promotione maritali.'
» Cartulary of Christ Church, Canterbury, Hari. MSS. 1006, f. 55 : ' Tenens
de monday land, si filiam infra vUlam maritaverit 16 d. et si extra homagium
2 sol.' Black Book of Coventry, Ashmol. MSS. 864, f. 5 : ' Radulfus Bedellus

154 ^tVVik ^tA0Antt^, [Essay I.
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 Glaston
bury 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 ^-
Origin and Such is the merchet of our extents and Court rolls. As
tions\f^" ^ said, it has great importance from the point of view of
merchet. 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 ^, 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 sufiicient
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
de lo hidis tenet i virgatam terre et prati. Et dabit merchettam pro filia sua
maritanda, si eam maritaverit extra viUenagium Episcopi.'
' Cartulary of Glastonbury, Wood MSS. i. (Bodleian), f iii, s : ' Si nul de
neffes folement se porte de son corps parque le seignour perd la vente de
eux.' ' 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 viUenagio 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 cottarus cotagia 6 de eadem servitute et con
dicione.'

Chap, v.] ' (mmUC 155
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 testi
mony to the effect that feudal lords introduced it on their
lands in places where it had never been paid ^, and one
cannot help thinking that such administrative acts as the
survey of 1 379-1 280, 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 par
ticular 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 ex
tended 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
' 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 111, m. 3 : ' Et non possunt inquirere nee 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.'

customs.

156 ^etpife p^A0AnttTfi. [Essavi.
manor, and the fine for marriage to be levied by the town
ship 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 distinc
tions. The stratification of the class and the determina
tion 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.
ServUe The same observations hold good in regard to other
customs which come to be considered as implying personal
servitude^. 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 ^.
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 ^ ; as for the rule of
' Y. B. 21/22 Edw. I, p. 107.
^ Note-book of Bracton, pi. 1230.
' Gloucester Cartulary (Rolls Series), in. 218 : ' Item quod non permittitur,
quod aliquis vendat equum masculum vel bovem sibi vitulatum sine licentia,
nisi consuetudo se habeat in contrarium.' Rot. Hundred, u. 628, a : ' Si habeat
equum puUanum, bovem vel vaccam ad vendendum, dominus propinquior erit
omnibus aliis et vendere non debent sine licentia domini.' Rochester Cartulary
(ed. Thorpe), li, a : 'Si quis habuerit puUum de proprio jumento aut ¦vitulum
de propria vacca et pervenerit ad perfectam etatem, non poterit UIos vendere,
nisi prius ostendat domino suo et sciat utrum illos velit emere sicut alios.'
Rot. Hundred, ii. 463, a : ' Item si ipse habeat puUum vel boviculum et labora-
verit cum Ulo non potest vendere sine licentia domini, sed si non laboraverit
licitum. '

Chap. v.] ^ttX>Xk Ctt0font0. 157
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 in- Control
tended to prevent directly or indirectly the passage of the movements
peasantry from one place to the other. The instructions of *e
issued for the management of the Abbot of Gloucester's
estates absolutely forbid the practice of leaving the lord's
land without leave ^. Still, eniigration from the manor
could not be entirely stopped ; from time to time the
inhabitants wandered away in order to look out for field-
work 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^. 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
' Cartulary of St. Mary of Beaulieu, Nero, A. xii. f. 93, b : ' Pro filio coro-
nando et pro licencia recedendi faciet sicut illi.' Cartulary of St. Peter of
Gloucester (RoUs Series), ui. 218 : ' Item quod nullo masculo tribuatur licentia
recedendi a terra domini sine licentia superioris hoc proviso, quod consue
tudines a servis dominus debitas ad plenum recipiat, contradicentes atta-
chiando ut inde respondeant ad curiam.'
" 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 u solidos et ii capones ut
possit manere ubi sibi placuerit.'

158 ^emfe ^tA0Anfv^, [essayi.
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 pay
ments, 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 regula
tions 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^, 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 ^. Every kind of personal commendation to
influential people is also forbidden ^.
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 land
owners. The surveys tell of serfs who settle on strange
land even in the vicinity of their former home *. It is by
no means exceptional to find mention of enterprising
landlords drawing away the population from their neigh
bours' manors''. The fugitive villain and the settler who
' Lancaster Court Rolls, Bundle 62, No. 750, m. 3 : ' Capones de reditu ut
custumarii possint manere super terram Radulfi de Wernore sed dictus WUl.
erit in visu franciplegii dom. comitis.'
' Sufi'olk 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 snscitant et ob hoc libertatem
sibi vindicant.' Cartulary of St. Alban's, 454 : ' Ubi vUlani emunt terras
liberorum de catallis nostris.'
' Cart. Glouc. (RoUs Ser.), iu. 217 : ' Item, inhibeatur nativis domini
manerii ne aliquid alicui dent per annum in recognitione, ut aliquo gaudeant
patrocinio.' * Lancaster Court Rolls, Bundle 62, No. 756, m. i : ' Nativus receptatus
apud Latfeld sine licentia domini.'
" Cartulary of Shaftesbury, Harl. MSS. 61, f. 59 : ' Fugiti^vi domine, R. fil.
Al. manet in Br. 'Sub WiUelmo.' Ramsey Inqu., Galba E. x. f. 27, b : ' Isti

^"^^'^•3 'ienoC 159

comes from afar are a well-marked feature of this feudal
society ^.
The limitations _of. rights of property have left as dis- Limita
: tions ai
property.

tinct 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 ex
pression 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 ^. 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 con
sequent attempts on the part of landlords to stretch their
rights to the utmost. But we have a case from the thir
teenth century : the Prior of Barnwell quotes the above-
mentioned rule in support of a confiscation of his villain's
land^- In both instances the principle is laid down ex
pressly, but in other cases peasants were deprived of their
property without any formal explanation.
Of course, one must look upon such treatment as ex- Heiiot.
ceptional. 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 confis
cated after his death, but the heirs had to surrender a part
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, partim
terram tenentes in calumpnia domine partim super terram Nicholai.'
' Coram Rege, Pasch. 7 Edw. I, m. 7 : ' VUlanus fugitivus an in viUenagio
tenens et adventicius.'
2 Eynsham Inqu. (Chapter of Christ Church, Oxford), 25, a : ' Quas Adam
pater ipsius adquisiidt et quia quicquid servis adquiritur domino adquiritur
faciat inde dominus quod sibi videatur experfiens.'
=¦ Register of St. Mary of Barnwell, Hari. MSS. 3601, f. 60 : ' Quidam
villanus de Bertone tenuit unum mesuagium de duobus dominis 
quicquid servus acquirit acquiritur domino suo.'

t60 §iVViU ^tA0AntV^, [Essay I.
of it, sometimes a v^ry 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 ^- The villains of St. Alban's
have to give the best head of cattle, and all house furni
ture ^. 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 ^. The Cartulary of Battle is exceptionally
lenient as to one of the Abbey's manors * : 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 '. Such ' free bench ' is regulated very
differently by different customs. The most common re-
' Black Book of Coventry, Ashmol. MSS. 864, f. 6 : ' Et cum obierit, dominus
habebit suum melius animal et nihUominus habebit omnes equos masculos,
carrectam ferratam, oUum eneum, pannum laneum integrum, bacones integros,
omnes porcos excepta una sue, et omnes ruscos apium, si qua hujusmodi
habuerit.' '¦' Formulary of St. Alban's, Camb. Univ. , Ee. iv. 20.
' 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.'
* Cartulary of Battle, Augment. Oif. Misc. Books, No. 57, f. 21, a: 'Et
post mortem cujuslibet predictorum nativorum dominus habebit pro herieto
melius animal, si quod habuerit, si vero nuUam 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.
' Gloucester Cartulary, iii. 193 : ' Et post decessum suum dominus
habebit melius auerium ejus nomine herieti, et de relicta simUiter. Et
post mortem ejus haeres faciet voluntatem domini, antequam terram in-
grediatur.'

CHAP.y.] 'l^itkt: x6i
quirement 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 \
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 naine 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 Wor
cester, for instance, we find the following enactment ^ : Each
virgate has to give three heriots, that is a horse, harness,
and two oxen ; the half-virgate two heriots, that is a har
nessed horse and one ox ; other holdings give either a
' 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 tene
mentum per licenciam domini intrabunt et uxorem relictam dicti defuncti de
medietate dicti tenementi dotabunt. ' Rot. Hundred, ii. 768, b : ' Item si obi
erit, dominus habebit melius auerium nomine herietti et per iUum heriettum
sedebit uxor ejus vidua per annum et unum diem et si ulterius vidua esse
voluerit faciet voluntatem domini.' — The custom in some ofthe manors of St.
Peter of Gloucester was peculiar. Gloucester Cartulary (Rolls Series), iii.
88 : ' MatUda 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
tlie parish.
^ 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.'
VOL. I. M

l62

^ttmk {ptA0Antv2'

[Essay I.

Relief.

Political
rights.

horse or an ox. In such connexion the payment has no
thing 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 tfenure, 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^. Fixed sums occur also,
and they vary according to the size and quality of the
holding ^.
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
* Glastonbury Inqu. (Roxburghe Series), 89, a: 'Item non vendet bovem
vel equum de sua nutritura sine licencia domini, nee coronare faciet filium
nee 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 native 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.
^ Cartulary of St. Mary of Beaulieu, Nero, A. xx. f. 84, b : ' Pro filio
coronando, filia maritanda, flne terre . . . secundum qualitatem personarum et
quantitatem substancie et terre.'

Chap, v.] {poUtkAi ^KACtkn0, 163
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^. 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 2, although the
amount remains uncertain.
As a holder of political power the lord has a right to
inflict fines and amercements on transgressors^. 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 ex
chequer. Lastly, we may classify under the head of political exac
tions, 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

' Rot. Hundred, u. 747, a : ' Debet talliari ad voluntatem domini quolibet
anno.' ' Ibid. ii. 528, b : ' Et debet talUari ad voluntatem domini semel in anno
et debet gersummare fiUam et fieri prepositus ad voluntatem domini.'
^ Cartulary of Battle, Augment. OS. Misc. Books, No. 57, f 93, a : ' Amer-
ciamenta 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.'
M 3

tenure.

164 ^^mfe p^A0Antt^t [essayl
their corn ^ ; there is also the manorial fold in which all the
sheep of the township had to be enclosed ^. 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 constanly 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%
that is ale supplied by the lord — for a good price, of
course.
Villain 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 *. 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
'¦ Formulary of St. Alban's, Cambridge Univ., Ee. iv. 20, f. 165, a; 'Ser
vilia — ¦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.'
' Bury St. Edmund's, Registrum album, Cambridge Univ., Ee. iii. 60, f
155, b : ' Liberi excepti a falda domini.'
' As to Scotale, see Stubbs, Const. Hist. § 165.
* Reg. Cellararii of Bury St. Edmund's, Cambridge Univ.,Gg. iv. 4. 30, b:
' Per fidelitatem custumarii . . . et per alias consuetudines serviles,'

Chap, v.] (^imnAC^^, 1 65
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
hot take into account the services or economic quality
of the tenure, and lays stress barely on the precarious cha
racter of the holding \ The owner may take it away when
he pleases, and alter its condition at will. The Abingdon
Chronicle tells us ^ 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 re
nounce thereby any of his manorial rights : he only regu
lated 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 instanced Some
times the right is actually enforced : in the Cartulary of
Dunstable Priory we have the record .of an exchange be
tween two landlords, in consequence of which the peasants

:z

* Y. B. 20/21 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.
' Chron. Mon. de Abingdon, ii. 25 (RoUs Series).
' Exch. Q. R., Misc. Books, No. 29, f 8, a : ' Habet 22 servos tenentes 35
acras terre ad voluntatem domini in servagio.' f. 10, b: ' Habet ibidem 25
servos tenentes 12 virgatas terre et dimidiam in servagio . . . et possunt
omnes removeri pro voluntate domini.'

1 66 §^XX)X2i {piA0AntX2. [EssayI.
were removed from eight hides of land by one of the con
tracting parties ^.
Control of The villain is in no way to be considered as the owner of
over "he '^ the plot of land he occupies ; his power of disposing of it
villain's is stinted accordingly, and he is subjected to constant con
trol from the real owner. He cannot fell timber ; oaks and
elms are reserved to the lord ^. 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*. 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 *.
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 ^ A
' Harl. MSS. 1885, f 7 : ' Volens autem 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. 14
Edw. I, Oxon. 9.
' Battle Abbey, Augment. Off. Misc. Books, 57, f. 21, a : ' Et memorandum
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 (ramosi) asportavit.'
' Sufi'olk Court RoUs (Bodleian), 2, a : ' Rob. Gl. assertavit pomaria sua et
fecit wastum super ¦vilenagium Comitis.'
* Sufi'olk Court RoUs (Bodleian) : ' Quia Henricus bercarius plegios non
potuit invenire ad heredificandum mesuagium quod fuit W. C. et ibi attractum
suum facere.'
5 Duchy of Lancaster Court RoUs (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 fiUus ejus et capit
dictam terram et dat ad ingiessum 10 soHdos.' 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.'

Chap, v.] (^mAXnAQi, 1 67
default in paying rents or in the performance of services,
and any other transgression against the interests of the lord,'
may lead to forfeiture 1. 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 re
sumed in this way by the lord 2. 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 *.
As to the treatment of tenure in manorial documents, it Tenure by
is to be noticed that a distinction which has no juridical '^^llf
meaning at all becomes all important in practice. At free;
common law, as has been said repeatedly, the contrast l^l'cult'u.
between free land and servile land resolves itself into a^^Y"*'
contrast between precarious occupation and proprietary
right. This contrast is noticed occasionally and as a
matter of legal principle by manorial documents* 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 phraseo
logy of surveys and manorial rolls, the tenements on
which the rent prevails over labour are called 'free tene
ments,' and those on the contrary which have to render
labour services, bear the names of ' servile holdings.' This
^ 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 custu-
maria . . . libere per cartam contra consuetudinem manerii.'
. ' Glastonbury Inqu. (Roxburghe Series), 65 ; Gloucester Cartulary (RoUs
Series), iii. 196.
' Capitula haliinoti, Bodleian MSS., Wood, i. f in, b : ' Si nul soit en un
graunt tenement e ne puisse les droitures de son tenement sustener p. un
aultre homme en un petit tenement que meutz tendroit le graunt tenement
al prow le seigneur e le tenement.'
* Rot. Hundred, ii. 321, a : In villenagio tres virgatae et dimidia. . . . Et
sunt tenentes iUarum servi de sanguine suo emendo. ... In Ubere tenentibus
pro certis serviciis per annum,' etc.

t68 ^emfe P^A0AntV^, [EssayI.
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 1 1 89, 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 profit
able, or would it be better if this land was taken back
by the lord^?' 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
' 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 liber
tate vel vUenagio, et si ita fuerit domino utilius sicut est vel revocatum.'

chap.v.] (Pieeamage. 169
half a virgate in Domerham, as it was nearer. This half
virgate ought to work and is now free. And the virgate in
Stapelham, though it was free formerly, has to work now,
after the exchange ^ The opposition is quite'clear, and
entirely suited to the list of questions addressed to the jury.
The meaning ofthe iermsfree a^nd 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^
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 vir
gates 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^.' 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 classifica
tion of holding into free and working virgates {liberae, ad
i>pus *).
' Ibid. 130 : ' J. clericus tenuit jn tempore Henrici episcopi apud Domer
ham unam virgatam quam adhuc tenet et aliam virgatam apud Stapelham pro
10 solidis. Recepta viUa de Domerham ad firmam, ipse propria auctoritate
dimisit virgatam de Stapelham et dimidiam ¦virgatam in Domerham in excam
bium cepit quia propinquior fuit. Hec dimidia virgata operari solet, nunc
autem est libera. Virgata vero de Stapelham post Ulud excambium operari
solet que ante hoc libera fuit.'
^ Ibid. 121 : ' De dono xxix solidi et vi denarii. Et de Anderdo deficiunt
vj den. quia tenet liberius quam predecessores sui solebant tenere.'
" Ramsey Cartulary (RoUs Series), i. 364: ' De his septem hydis est
una hyda libera. De sex hydis, quae restant, tenet MarsiUa filia A. de R.
duas virgatas ad censum. Quinque hydae et tres virgatae, quae restant,
tenentur in puro villenagio.'
» Galba, E. x. f. 38.

I70 ^ivvxU (j)ea0an^tr^. [Essayi.
Terra ad In opposition to free service, that is rent, we find both the
flT'^eSim 'vUlenagium^ and the terra consuetudinaria or customaria^,
burdened with the usual rural work. Sometimes the docu
ment points out that land has been freed or exempted from
the common duties of the village ^ ; 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 fur cam et flageltum^,
'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 ^, instead of simply
paying rent. In view of such a phraseology the same
1 Extensio de terris Roberti de Sto. Georgio (Lincoln) Inquis. p. mort.
30 Henry III, 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 Ra
dulfus filius G. de eo tenuit per cartam pro 2 solidis per annum pro omni
servicio.' ^ Bury St. Edmund's, Reg. CeUararii, Cambr. Univ., Gg. iv. 4, £ 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.
' 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. ui. : ' Si nul soit enfraunchi de ces ouveraignes dont la uile le est
le plus charge.'
* 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.'
" 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, FlageUo,
Tribulo, Furca, Fake.' Coram Rege, Mich., 51/52 Henry III, m. b: 'Et
simiUter predictus Petrus distringit eos pro consuetudinibus et servitiis que
nee antecessores eorum nee ipsi facere consueverunt ut cum furcis et
flagellis.'

Chap.v.] ^k^hnb, 171
tenement could alternately be considered as a free or a
servile one, according to its changing obligations \ 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 versd, land subjected to village-work
pays small rents ^ ; 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 phraseo
logies, 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 de
pendence appears as a matter of agreement, and not an
economic tie. When a tenement is for economic purposes
subordinated to the general mana.gement of the manor,
there is almost of necessity a degree of uncertainty in
its tenure ; it is a satellite whose motions are controlled
' Eynsham Cartulary, Christ Church MSS., No. 97, f 6, a : 'WiUelmus F.
tenet unum cotagium et quartam partem unius virgate terre qui facere con-
suevit pro rata porcione sicut virgatarius. Modo ponitur ad firmam dura
domina placet ad 6 solidos, 8 d.,' etc. Cf. Domesday of St. Paul's (Camden
Series), 81. This is in substance the difl'erence between ' bondagium et
husbandland,' Inquis. p. mort. 46 Henry III, No. 25 ; Hexham Priory Car
tulary (Surtees Series), p. xx.
^ Domesday of St. Paul's (Camden Series), 49.

172 l^emfe 06A0Antv^. [essayl
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.
Custom in Everything is subject to the will and pleasure of the lord ;
cise of but this will and pleasure does not find expression in any
manorial capricious interference which would have wantonly de
stroyed order and rule in village life. Under cover of this
will, customs are forming themselves which regulate the
constantly recurring events of marriage, succession, aliena
tion, 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 ^. 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^. ' 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 ^.' On the
strength of such custom the life of the jinfree 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,
^ St. Alban's Formulary, Cambridge Univ., Ee. iv. 20: 'Ne uno homini
plures terre tradantur, et si modo unus plures tenet, di^vidantur, si commode
et honeste fieri poterit.'
'^ Domesday of St. Paul's (Camden Series), 52 ; Duchy of Lancaster Court
Rolls, B. 62, No. 750: ' Et quia huiusmodi tenementum nullus potest vendi-
care hereditarie ut de aUis ¦villenagiis successive.'
^ Hereford Rolls, 8 (Bodleian) : • Et concessum est ei tenere dictum mesua
gium 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.'

Chap.v.] tmtomAt^ ^\xtk0 of tu Bovb. 173
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 1. An Essex
villain claims succession byhereditary right, for himself and
his heirs ^. 1 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^ 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 repre
sentative, and a corresponding entry made in the roll of
the Court Hence the expression tenere per virgam, aut
per rotutu^m Curie *.
I ought perhaps to treat here of the different and interest- Custom
ing forms assumed by services and rents as consequences of the lord
' Extractus Rotulorum de Halimotis, Cambridge Univ., Dd. vii. 22, f. i , a.
' Essex Rolls, 8 (Bodleian), m. 6 : ' Johannes filius W. B. venit et
clamavit unum mesuagium et quatuor acras terre cum pertinencus ut jus
et hereditatem suam post mortem dicti W. patris sui faciendo inde dominis
predictis servicia debita et consueta nomine viUenagii et dat domino ad
inquirendum de jure suo et si sit plene etatis et heres dicti W. nee ne,' etc.
» Eynsham Cartulary, Christ Church MSS., No. 27, f. 11, b: 'Matildis B.
tenet de domino unum cotagium cum curtilagio in voluntate domini.' Cf
Glastonbury Inqu. (Roxburghe Series), 66; Gloucester Cartulary (RoU^
Series), iii. 134; Domesday of St. Paul's (Camden Series), 23.
* 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 i88, b: 'Tenentes de moUond . . . 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.

174 ^emfe (pea0an(trg. [essayi.
in regard of manorial organisation. But I think that this subject
peasantry ^^^^ ^^ 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 'inbreviatedV
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 land
lord's concessions and good-will, but grace loses its ex
ceptional aspect in this case and leads to a morally binding
obligation ^. When the villain brings his yearly rent to
his lord, the latter often invites him to his table ^. 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 be
comes 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
' Note-book of Bracton, pi. 1237.
^ Ely Register, Cotton, Claudius, C. xi. {. ui. b : ' Habebit duas pugUlatas
avene ex gratia, ut juratores dicunt, per longum tempus usitata.'
' Warwickshire RoU. Exch. Q. R. No. 29, f. 94, b : ' Servus .... cum
fecerit exennium .... comedet cum domino.'

Chap.v.] tmtomAV^ 'S)ntk0 of tu Botb. 175
alone that could be got on such days. Here is a descrip
tion 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 ^.'
All such customs seem very strange and capricious at
first sight. But it is to be noticed that they occur in dif
ferent 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 ^. 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.
' Christ Church, Canterbury, Cartulary, Add. 'MSS. 6159, f. 22, b. Cf.
Gloucester Cartulary (Rolls Series), iii. 203.
" Custumal of Battle Abbey (Camden Ser.), 30 : ' Et debet herciare per
duos dies .... pretium operis iiij. d. Et recipiet de domino utroque die
repastus pretu iij.d. Et sic erit dominus perdens j. d. Et sic nichU valet
iUa herciatio ad opus domini.'

176 §mxk ^iA0Antt^. ' [Essay T.
Customs These regularly recurring liberationes or liberaturae as
rangement they are Called, that is, meals and, provender delivered to
of agri- the labourers, have their counterpart in the customary
work. 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.
We 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 par
ticular 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^. A baker belonging to Glastonbury Abbey is
not bound to carry loads unless a cart is provided him^. 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 ^. All these
customs and limitations may, of course, be, broken and
slighted by the lord, but such violent action on his part
wiJlJbe,._considered._as.__gToss__injustice,^and_ lead to
QSns.eguences _unp.leasant_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.
' Coram Rege, Pasch., 14 Edw, I, Lege, 18 : 'VUlani circulare (sic) non
consueverunt nisi ex voluntate.'
' Glastonbury Inqu. (Roxburghe Series), 82 : ' Sed non debet carriare
nisi dominus prestaverit suum plaustrum.'
' Cotton MSS., Claudius, C. xi, f 30, b : ' Sed juratores dicunt (juod nun
quam hoc fecerunt nee de iure facere debent. '

^"^"•v-] (^e0u«0» 177
And still the lord does not tallage them at pleasure, they
are secure in the possession of their waynage {salvo con-

We may sum up the results already obtained by our
analysis of manorial documents in the following propo
sitions : —
I. The terminology of the feudal period ahd the treat
ment 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.
3. 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.
• Rot. Hundred, ii. 758, a : ' Servi . . . nee potest fiUam maritare nee uxorem
ducere sine licencia domini ; debet et salvo contenemento suo talliari et ad
omnia auxilia communia scottare et lottare secundum facultatem suam,' etc.

VOL. I. N

CHAPTER VL

FREE PEASANTRY.

I HOPE the heading of this chapter may not be mis
understood. 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 con
temporary documents.
General In very many cases we are actually enabled to see how
of Eng'-"" freedom and legal security gradually emerge from subjec-
land. tion. 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

^onM^ion of ^n^hnb. 179
pay money, whereas they used to do work, and who have
thus emancipated themselves from the most onerous form
of subjection ^. 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 I 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 authori
ties, 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 forma
tion of an aristocracy which was compelled to act as a
class instead of acting as a mere collection of individuals
' Rot. Hundred, ii. 528, b : ' Et modo omnia Ula arrentata sunt et dant
per annum 14 sol. 8 d.'
' Exch. Q. R. Min. Ace, 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 vUlenagii sunt ad voluntatem domini de operibus eorun
dem.' Cf. Ibid. 407, b. N 1

l8o ^VU ^^A0Antt^, [Essay I.
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 divi
sions 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 under
taken 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 politi
cally 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 Euro
pean 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 in
sured 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 direc
tion : 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 Aqui
taine 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 thir
teenth century undoubtedly moving from natural husbandry
to the money-system.

chap.vl] Cotnmu^afion. 18 1
The consequences are to be seen on every side in the Commuta-
arrangements of state and society. The means of govern- ''°"-
ment 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 un-
wieldly 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 organisa
tion 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 per
sonal 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 plough
ings 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

l82 §VU ^^A0AntV^, [Essayi.
beginning : one of the chief reasons for holding the Glas
tonbury inquest of ii 89 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.
Social The whole process has a social and not merely an
results of economical meaning. Commutation, even when it was re-
commuta- °
tion. stricted 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 espe
cially felt when the commutation took place in regard to
entire villages ^ : 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 2.
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
' Worcester Cartulary (Camden Series), 54, b : ' Haec viUa tradita est
ab antiquo vUlanis ad firmam, ad placitum cum omnibus ad nos pertinen
tibus. ' Cf Gloucester Cartulary, iii. 37.
^ Worcester Cartulary (Camden Series), 1. c. : ' Praeterea percipimus me
dietatem proventuura et herietum, praeterea debent metere., ligare et com-
postare bladum de antiquo dominico de Hordewell . . . . et gersummabunt
filias.'

chap.vl] QUofmen. 183
from certain duties by charter i, 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 ^. To prevent
such misconstruction the lord very often guards expressly
against it, and inserts a provision to say that the agree
ment is not to be construed against his rights and in favour
of personal freedom ^.
The influence of commutation makes itself felt in the Molmen.
growth of a number of social groups which arrange them
selves between the free and the servile tenantry without
fitting exactly into either class. Our manorial authorities
often mention mol-land and mol-men*. 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 ' cus
tumarii,' the great mass of peasants who render labour
services ^ Kentish documents use 'mala' or 'mal 'for a
• 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 Winter
burne, quos homines nostros Henricus illustris rex Anglie nobis concessit.'
' Wartrey Priory Cartulary, Fairfax MSS. f. 19, a : ' Et Adam dicit quod
predictus Prior viUenagium 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.'
' Malmesbury Cartulary (RoUs Series), ii. 199 : ' Nos tradidisse . . .
Roberto le H. de K. et Helenae uxori suae, et Agneti filiae eorum primo-
genitae nati'vis nostris, omnibus diebus vitae eorum, unam domum. Ita
quod non licet praedicto Roberto alicui vendere nee occasione istius tradi-
tionis aliquam libertatem ipsis vendicare.'
* As to molmen, I shall follow in substance my article in the English
Historical Re^view, 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.
' Any number., of examples might be given. I referred in my article to
a Record OflSce document, Exch. Treas. of Rec. Min. Ace. 32/8 : ' Rogerus

1 84 StU ^iA0AntV2> [Essay I.
particular species of rent, and explain the term as a pay^
ment in commutation of servile customs i. 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 ^. Etymologically there is
reason to believe that the term mal is of Danish origin ^,
and the meaning has been kept in practice by the Scotch
dialect *. 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
Improve- certain rents. Legally they ought to remain in their former
MndUion 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 ^.
prepositus tenet 28 acras pro 13 solidis solvendis ad 4 teraiinos principales.
Et dat 2 gaUinas at Natale domini de precio 3 den., et 18 ova ad Pascham,
et debet 2 homines ad 2 precarias ad cibum domini et non exteuduntur 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 faciet 2 averagia Londinium que valent 2d. . . Custumarii
Johannes Cowe tenet 13 acras et dimidiam pro 27d. . . Et debet 3 opera
qualibet septimana, scUicet per 44 septimanas videlicet a festo Natali beate
Marie usque ad gulam Augusti que continet in operibus per predictum
tempus vi^'xn (i.e. 132) et valet in denariis 5 sol.' etc.
' Black Book of St. Augustine, Canterbury, Cotton MSS. Faustina, A. i.
31 : ' De quolibet suUung (ploughland) 20 solidos de mala ad quatuor ter-
minos quos antecessores nostri dederunt pro omnibus iniustis et incausa-
cionibus (sic) quas nobis ore plenius exponemus.'
^ Rochester Costumal (ed. Thorpe), 2, b : 'F. habet 21 jugum terre te
Gavelland unius servicu et unius redditus. Unumquodque jugum reddit
lo sohdos ad 4 terminos — hoc est Mal. In media quadragesima 4od. 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.
^ The etymology of the word is traced by Stevenson, 1. c.
' Ashley, Economic History, i. pp. 56, 57.
" Registrum Album Abbatiae Sancti Edmundi de Burgo, Cambridge Uni
versity, Ee. in. 60 f. ; 188, b : ' Memorandum quod anno regni Regis Edwardi
fiUi Regis Henrici 18— dominus Johannes de Norwold abbas Sti. Edmundi
ad ulteriores portas manerii sui de Herlawe, ad instanciam CeciUe le Crete

CHAP.VL] (moemen. 185
In the Bury St Edmund's case just quoted in a foot
note the fundamental principle of servility is stated em
phatically, but the statement was occasioned by gradual en
croachments on the part of the molmen, who were evidently
becoming hardly distinguishable from freeholders \ 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 re
stricted to those holding mol-land ^. Borough English was
very widely held in medieval England to imply servile
occupation of land ^, and the privilege enjoyed by molmen
de Herlawe hereditatem suam de moUond infra campum dicte vUle jacentem
post mortem ¦viri sui a pluribus tenentibus Abbatis petentis coram eodem
Abbate, eo pretextu quod vir suus adventicius dictam hereditatem suam ipsa
in^vita vendidit et alienauit, per subscriptos inquisivit, utrum ipse seu alii
quicumque infra vUlam predictam moUond 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 custupiarii
et fuerunt, sed Abbas Hugo primus et Abbas Sampson posterum et alii
Abbates relaxarunt eis seruicia maiora et- consuetudines pro certa pecunia ; modo
arentati in aliquibus operibus ceteris, sed nihU habent inde nee tenent per
cartas, sed per virgam in curia. Et sunt geldabiles in omnibus inter custu-
marios et quod omnes sunt custumarie et servUis condicionis sicut et alii.'
' Exch. Treas. of Rec. 59/66. The classes foUow each other in this way :
' Liberi tenentes, Molmen, Custumarii.' Cf Rot. Hundred, u. 425, a.
' 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 moUond primogenitus de iure et consuetudine debet eam retinere ;
si tota fuerit vUlana iunior; si maior pars fuerit moUond primogenitus, is
maior pars fuerit villana iunior eam optinebit.'
3 I cannot surrender this point (cf Stevenson, 1. 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 servUe status. It would have been

1 86 §tU ^iA0AntV^. [Essay L
in this case shows that they were actually rising above
the general condition of villainage, the economical pecu
liarities 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 3 acras terre ^.
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.
Censuarii The same group appears in manorial documents under the
men.^*^^ name oicensttdrii ^- 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-
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, pi. 1062. The lord is adducing as proof
of a plea of villainage : ' Hoc bene patet, quia postnatus filius semper
habuit terram patris sui sicut alu vUlani de patria.' I have said already that
the succession of the youngest son appears with merchet, reeveship, etc.,
as a servile custom.
1 Q. R. Min. Ace. Box 587.
" Ramsey Cartulary (Rolls Series), i. 267: ' Decem hidae, ex quibus persona,
liberi et censuarii tenent tres hidas et dimidiam, et viUani tenent sex hidas.'

CHAP.VL] &Av>dm^n, 187
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 ^-
A similar condition is indicated by the term gavelmanni,
which occurs sometimes, although not so often as either of
the designations just mentioned ^. It comes evidently from
gafol or gafet, 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 ser
vice 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
mat, and as to census, there is nothing to show whether it
arises in consequence of commutation or of original agree-
' Domesday Book, i. 204 ; Ramsey Cartulary, i. 270, 330-40.
" Rochester Cartulary (Thorpe), ;i, a : ' Gavelmanni de Suthflete.'

l88 -^tU ^i^A0Antt^. [Essayi.
ment 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.
Hun- There are at the British Museum two most curious
Surveys of the possessions of Ely Minster, one drawn up
in 1333 and the other in 1377^. In some ofthe 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^. And although
the name does not occur often even in the Ely Surveys,
and is very rare indeed elsewhere^, the thing is quite
1 Cotton MSS. Tiberius B. ii, and Claudius C. xi.
' Cotton MSS. Claudius C. xi, i. 49, a ; ' De hundredariis et libere tenen
tibus. 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 detaUed discussion of the position of hundredors,
see Appendix.
' In the description of Aston and Cote, a submanor of Bampton, Oxford
shire, hundredarii are mentioned in Rot. Hundr. u. 689.

dredarii.

CHAP.VL] ^\nnbubot0, 189
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 ^ The same
people have to attend the County Court and to meet the
King's justices when they are holding an eyre ^. 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 ^ They are exempted from other services in
regard to this ' external,' this ' forinsec ' duty, which was
considered as by no means a light one *.
And now as to their status. The obligation to send Hundred
the reeve and four men is enforced all through England, ^^^^j^g
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-
' Leg. Henrici I, c. 7. The point has been lately elucidated by Maitland,
Suitors of the County Court, Eng. Hist; Rev., July 1888, and Round, Archaeo
logical Review, iv.
'^ Gloucester Cart. in. 193 : ' Et dicunt quod predictus Thomas et socu sui
subscripti debent aquietare viUam 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, ofthe Exchequer, i. 74 : ' Serviet eis nomi-
natim in omnibus placitis ad quae convenienter summonitus erit et ad defen-
sionem totius vUlae Estone aderit in hundredis et scyris in quibus erit
quantum poterit.' Warwickshire Hundr. RoU, Q. R. Misc. Books, No. 29,
f. 73, a : ' Seriancia ad comitatum et hundredum.'
' 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.' * Gloucester Cart. iii. 77 : ' Henricus de Marwent tenet unam virgatam
continentem 48 acras . . . et facit forinseca [servitia], scil. sectas comitatus et
hundredi, et aUa forinseca.' Cf Cari:. of Shaftesbury, 65 : ' . . . defendebat
terram suam de omnibus forinsecis avencionibus.'

I90 §VU {ptA0AniV2» [Essay I.
holding peasants or yeomen ^. 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 town
ship were on an equal standing with the freeholders^.
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 con
clusion 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 person
ally unfree : we know already, that the law of tenure
was of more importance in such questions than personal
status ^. 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.
Hundred- 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 contradic-
' Seebohm, ViUage Community, 37, 38; Scrutton, Common Fields, 39.
' See the instances collected by Maitland, Introduction to RoUs of Manorial
Courts, Selden Soc, Ser. II, p. xxix, note 2.
* Maitland, op. t.

ors as free
tenants.

CHAP.VL] ^mbnbot0. 191
tions 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 at
tending hundreds and shires ranks again and again with
freehold and in opposition to base tenure 1. 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 ^. 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 representa
tion 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 hun
dredors is simply a case of exemption and exactly on a
parallel with the commutation of servile obligations for
inoney ? We have seen that villains discharged from the

' 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 tan
tum, 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.
^ Ramsey, Inqu. Cotton MSS. Galba, E. x, f 52 : ' Ecclesia ipsius ville pos
sidet dimidiam hidam liberam et presbiter debet esse quartus eorum qui se
quuntur comitatum et hundredumcum custamento suo. ' Cf 40, 54. Instead
of attending separately the priest comes to be included among the four
hundredors.

192 jjiree (J)ea0cinftr^. [e^sayi.
most onerous and opprobrious duties of their class rise at
once in social standing, and mix up with the smaller free
holders. 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 free
dom. Should we look at the facts in this way, the classi
fication 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.
The At first sight the line seems drawn very sharply between
Courts. 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 present
ments. But the distinction, though very clear in later
times, is by no means to be relied upon even in the thir
teenth century. In Britton's account of the sheriffs 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 ^' 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 ^, 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
' Britton, i. 177 sqq. See Maitland's Introd. to Manorial Rolls, p. xxvii.
' Maitland, op. c. pp. xxix, xxx.

CHAP.VL] (^xmn0 A0 ^mtot0, 193
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' ofthe '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 in
terests, 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
attpnd 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 be
tween 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 ap
pear who are ' free and worthy of their wer and their
wite ^ : ' this expression seems an equivalent to the ' free
> Leg. Henrici I. c. 8. Cf Ely Register, Cotton MSS., Claudius, C. xi,
32, a : ' et libere tenentes sui qui tenent per soca^um debent unam sectam
VOL. I. O

194

^tU ^iA0Antt^.

[Essay I.

Results
as to hun
dredors.

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 con
nexion 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 judg
ment of thieves their freemen, their reeves and ministers
have to attend in order to take part in the judgment \ It
is clearly a case of substitution, like the one mentioned
in Leg. Henrici, c. 7, and the point is, that the representa
tives 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 free
men, and its treatment under the influence of feudal

ad frendlese hundred, scil. ad diem Sabbati proximum post festum St.
MichaeUs. 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 ' ?
1 Glastonbury Cart., Wood MSS., i. f 233, a : ' et N. et G. veniunt et defen
dunt 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 indicium et non ipsi in propria persona sua.'
Cf Malmesbury Cart. (Rolls Sen), ii. 178 : ' Item recognouit sectam ad
hundredum de Malmesburia per se vel per suflScientem attornatum suum.
Item recognouit et concessit quod omnes Uberi homines sui de Estleye se-
quantur de hundredo in hundredum apud Malmesburiam sicut aliquo tempore
predecessorum suorum facere consueverunt.'

CHAP.VL] %vinbvtbot0, 195
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 ^. 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 termin
ology which appears to confuse or else to neglect the dis
tinction 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^. The free people
had to attend virtually, if not actually, and a series of con
tradictions 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 free
holders, although in strict law they may have been villains.
The net results seem tobe: (i) that the administrative
' 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 in
stance : Eynsham Cart. MSS. ofthe Chapter of Christ Church, Oxford, xxix.
f 4, a : ' lohannes 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 any
thing to do with manorial records.
" Cf. Maitland, Suitors. of the County Court, Eng. Hist. Review, July,
1888.
O 3

196 ;§XU ptA0AntV^, [EssayI.
constitution of hundred and county is derived from a
social system which did not recognise the feudal opposi
tion between freeholder and villain ; (3) 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 in
fluenced the conception of tenure even in later days ^.
Socmen. 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 pro
tected 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 burden-,
some incidents of wardship and marriage. But no one
would have called these men socmen (sokemanni, soco-
manni). On the other hand, the socmen, free socmen, were
to be 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
' Is it not possible to explain by the ' hundredor ' the foUowing difficult
passage in Domesday, ii. loo ? ' Hugo de Montfort invasit tres liberos homi
nes . . , unus ex his jacet ad feudum Sancti Petri de Westmonastfrio tes-
timonio hundredi, sed fuit liberatus Hugoni in numero suorum hundredonim
(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 diificulty.

CHAP.VL] ^ocm^tt, an^ Socage. " 197
to occupy an intermediate position, because they are as
statu liberi in regard to their lords i. 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 peqple 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 cha
racterised not merely as socage, but B.sfree socage : this fact
will give us a second clue in analysing the condition.
There are two leading features in ancient demesne charter
socage ; it is certain in tenure and service, and it is held by ^"^ "^P™"
, - munal
the custom ofthe manor and not by feoffment. The cer- testimony.
tainty 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 accord
ing 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 free
holder. 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-
1 y. B. 21/22 Edw. I. (ed. Horwood), pp. xix, 499.

198 ^VU {pM0AntV2' [Essay I,
land), while socage was in truth copyhold secured by com
munal custom \ 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 ^. For this reason we should be fairly entitled,
I think, to extend to them the notion- of customary free
hold. There is direct evidence in this respect. In extents
of manors socmen are often distinguished from freeholders^-
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
' I may be excused for again referring to the Stoneleigh Reg. f 32, d :
' Quidam tenentes eiusdem manerii tenent terras et tenementa sua in Soke-
niannia in feodo et hereditate &e. qua quidem tenura talis habetur et omne tem
pore 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 aUquis 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 aUenata domino dicti
manerii erit forisfacta in perpetuum.'
' Madox, Exch. i. 724, e : ' Monstraverunt Regi homines et tenentes de soca
de Oswald Kirke in Com. Nottinghamiae, quod cum soka iUa 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 Ula inter homines communitatis comitatus Nottinghamiae et non cum
tenentibus de antiquis dominicis Coronae Regis a tempore escambii predicti
talliari consueverunt, assessores tamen taUagii Regis in dominicis in Comitatu
Nottinghamiae praedicto . . . (eos) una cum iUis de dominicis Regis prae
dictis talliari fecerunt.' Cf 428, b, c.
^ Rot. Hundr. ii. 608, a : ' Liberi tenentes . . . liberi sokemanni.' Cf 752, a.

CHAP.VL] Socmen 5i^^^ r<*n5 (^Ott&. 199
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^. 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^. 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 Bond
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 qualifies 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 illus
tration of this not unimportant point. The vill of Soham
in Cambridgeshire =* was owned in 1379 partly by the King,
partly by the Earl Marshall, and partiy by the Bishop
1 Inquisit. post mortem 53 Henry 111, n. 4 (Record Office) : ' Libere te
nentes ad voluntatem . . . libere tenentes in socagio . . . libere tenentes
per cartam.' Rot. Hundr. ii. 471, a. See Appendix x.
2 Warwicksh. Hund. RoU. Q. R. Misc. books, xxix. p. 44, b : ' (tenens) per
antiquam tenuram sine carta.' Gloucester Cart. iu. 67 : ' de liberis tenenti
bus dicunt quod haeredes O. G. tenent tres virgatas terrae de antiqua tenura.'
Cf in. 47, 69. Christ Church Cart., Canterbury, Add. MSS. 6159, p. 70 : 'isti
tenent antiquo dominico . . . isti tenent antiquum tenementum . . .
inferius notati sunt operarii.' Domesday of St. Paul's, 46, 47 : ' de antiqua
hereditate.' Cf PoUock, Land-laws (2nd ed.), p. 209.
2 Rot. Hundr. ii. 501, b.

200 §VU ^U0AntVT», [EssayI.
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 Mar
shall. 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, hold
ing thirty acres each, and nine bonds holding fifteen acres
each : all these perform the same services as the correspond
ing 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 rentpaying people and labourers ; the holdings of
the rentpayers 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

CHAP.VL] ®u^ie0 of Socmen. 201
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 \ Two-thirds of it belonged to the Earl of
Oxford in 1379, ^nd 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 1379 "^^e servi soco-
manni 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 ofthe
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. Servile
privileged villains as Bracton calls them, are sometimes socmen
subjected to very burdensome services and duties. Merchet and free-
is very common among them ; it even happens that they
have to fine for it at the will of the lord^. But all the
incidents of base tenure are to be found also outside the
ancient demesne in connexion with the class under dis
cussion. If we take the merchet we shall find that at
Magna Tywa, Oxon ^, 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,
1 Rot. Hundr. ii. 774.
" Coram Rege, Hill. 30 Edw. I, m. 17 ' (servicia sokemannorum) . . .
merchet ad voluntatem.' " Rot. Hundr. u. 846, a.

202 ;^ree ^iA0Antv^. [esbayl
Oxon ^, a spear and four pence are given in payment. The
socmen of Peterborough Abbey ^ have to pay five shillings
and four pence under the name of merchet as a fine for in
continence (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 ^. 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 *, the socmen are placed in this re
spect on the same footing with the villains. The Spalding
Cartulary adds that their wainage is safe in any case^.
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 ^.
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 '', sometimes he has to act as a kind
of overseer *, and in any case this base labour would not
degrade him from his position ^. 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
' Rot. Hundr. u. 781, b.
^ Peterborough Cart., Cotton MSS., Faustina, B. in. f 97, 98.
' Spalding Priory Cart., Cole MSS., xliii. p. 296.
¦• Rot. Hundr. ii. 780 b.
" Spalding Cart. p. 295.
' Ibid. p. 283 : ' bondus dat auxilium . . . scil. omnes sokemanni unam
marcam.' Cf 292.
' Ely Inqu., Cotton MS., Claudius, C. xi. 50, b : ' Tota vUlata 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.
* Domesday of St. Paul's, 76, 77 ; Rot. Hundr. ii. 764, b.
' Domesday of St. Paul's, 32 : ' Omnes isti libere tenentes metunt ef
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.

CHAP.VL] <S>v^tk0 of Socmen. 203
of socage with labour services. Merchet heriot and tal
lage occur even more often \ 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 sur
render of horse and arms as well as in that of the best ox ^-
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 ^.
Nevertheless free tenants are very often found to pay it *.
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 hun
dred, and the lords had not always succeeded in dispos
sessing the hundred ^ Such a fine probably developed
out of a payment to the tribe or to a territorial com
munity 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,
' Ely Inqu., Cotton MSS., Claudius, C. xi. C. 266 : ' De feodis militum et
libere tenentibus . . . heriet . . . relevium . . . sed non dabit tallagium et
gersumam.' 167 b : ' herietum . . . relevium . . . pannagium . . . taUagium.'
Ramsey Cart. i. 297.
' Gloucester Cart. iii. 49 and 46 ; Battle Cart., Augm. Off. Misc. Books,
N. 57, f 10, b.
' Ely Inqu., Cotton MSS., Claudius, C. xi. f 186, b: 'Omnes custumarii
preter liberos qui non dant gersumam pro filiis et filiabus . . . '
' E. g. ibid. 44, a.
» Bury St. Edmund's Registrum Album, Cambr. Univ., Ee. iii. 60, f 154, b :
'Et nota quod si prepositus hundredi capiat gersumam de aliquo libero,
dominus habebit medietatem.' Suffolk Court RoUs, 3 (Bodleian) : ' gersuma
si evenerit filii vel filie, finem faciet in hundredo, sed celerarius habebit
medietatem finis.'

204 §VU {ptA0AntV^, [EssayI.
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 them
selves 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.
Feudal The passage from one great class of society to the other
iifflieTi-" ^^^ rendered easy in this way by the variety of combina-
rection of tions in which the distinguishing features of both classes
appe~ar, No wonder that we hear constantly of oppression
which tended to substitute one form of subjection for an^
other, and thus to lower the social standing of intermediate
groups. The free socmen of Swaffham Prior, in Cam
bridgeshire ^, 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 ^ 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 ^ the tenantry complain of new
exactions on the part of the lord ; in King's Ripton *,
Hunts, merchet is introduced which was never paid be
fore ; in Collecot, Berks ^, 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 prob
ability the chances were rather against the subjected people
' Rot. Hundr. u. 484, b ; 485, a. = Ibid, ii 749, b. ' Ibid. i. 6.
' Coram Rege, Trin., 3 Edw. I, m. 14, d. = Rot. Hundr. i. 19.

CHAP.VL] TIU tmtom of Uettf. 205
than for them, and their grievances are represented in our
documents rather less than fairly ^.
In speaking of those classes of peasants who were by Law of
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 neigh
bouring 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 ^, 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 ^,
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 recog
nised 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
• Cf. a very definite case of oppression, Placit. Abbrev., 150.
' Statutes of the Realm, i. 224.
3 Notebook of Bracton, pi. 1334 and 1644.

206 ^VU piA0Antt^. [Essay L
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 ^. 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 ^.
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,
^ 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 : ' (Consuetu
dines vUlanorum 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.'
" Notebook of Bracton, pi. 1334 : ' . . . et consuetudo est quod uxores ma-
ritorum defunctorum habeant francum bancum suum de terris sokemanno
rum.' Rot. Hundr. i. 201, 202 : ' habent et vendunt maritagia sokemannorum
aliter quam deberent, quia in Kancia non est warda.'

CHAP.VL] &Ar>dUnb. 207
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 ^. 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 opposi
tion to the usages of those who hold their land by fork
and flaiP. The important point is that we may lay down
as certain in this case what was only put forward hypo
thetically 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 pro
ceeds 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 pub
lished 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
• Cf Elton, Tenures of Kent.
" Notebook of Bracton, pi. 1419 : ' et ipsi veniunt et dicunt quid nunquam
cartam illam fecit nee facere potuit quia uiUanus fuit et terram suam defen-
didit per furcam et flagellum.'

208 jjtr^e ^^A0AntV^, [EssayI.
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 im
portance 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 thir
teenth century stand as sufficient proof against the ad
mission 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 kin
dred 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 prac
tice of the Royal courts ?
Peasant One more subject remains to be touched upon, and it
holders. '^^Y ^^ 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 exist
ence of a class of freeholders among the peasantry of
feudal England be maintained ? It has been made a test

CHAP.VL] {K)iA0Ant StuU2b^V0> 209
question in the controversy between the supporters of the
free and those ofthe servile community, and itwould 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 Domes
day, and that in this way there can be no talk of free
village communities this side of the Conquest^. 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 Domes
day are not the predecessors in title of later free
holders ^. I cannot help thinking that a good deal has
to be modified in this estimate of the evidence. With
out 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 t>ut
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
1 Seebohm, VUlage Community, 103 ; followed by Scruttbn, Commons and
Common Fields, 38 ; and Ashley, Economic History, i. 18.
' Maitland, Introduction to Manorial RoUs, Ixix.
VOL. L P

2IO §VU {ptA0Antt^,
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, scat
tered, obscure, and one-sided. But if the villains of Domes
day 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.

CHAPTER VII.
THE PEASANTRY OF THE FEUDAL AGE. CONCLUSIONS,
I HAVE divided my analysis of the condition of the Legal and
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 ad
ministration. 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 con
tradictions 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 pur
poses 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
P 3

212

ZU ^iA0Antv2 of tu ifeuaaf ^ge, [e^say i.

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 con
venient rules. A general conformity is apparent in every
point At the same time there is undoubtedly an oppo
sition 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 gather
ing 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 con
spicuous in mediaeval history, the general relation between
legal and manorial documents becomes especially impor
tant. 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.
The wUl Bracton defines villainage as a condition of men who do
lord and "°* know in the evening what work and how much they
thecus- will have to perform next morning. The corresponding
manor. ^ tenure is entirely precarious and uncertain at law. But
these fundamental positions of legal doctrine we find op-

Chap. VIL] (niovmen^ ton>Avb0 Svu tontvAct 213
posed in daily life to the all-controlling rule of custom. The
peasant knows exactly on what days he has 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 ^ ; in most cases he knows
also what will be required from him when he inherits from
his father or marries his daughter. This customary arrange
ment of duties does not find any expression in comnion 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 Movement
a one-sided picture of mediaeval village life, because they f°e^^con-
describe it only from the point of view of the holding : '''act and
people who do not own land are very seldom noticed, and rents.
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 'anelipe-
men^ ' ofthe extents correspond evidently to this fluctuating
• 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 e^vidently nreant. Comp. Domesday of St. Paul's.
'¦' Ely Inq., Cotton MSS., Claudius, C. xi. 60, a : 'Anelipemen, Anelipe^wyman
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 quilibet under-
setle 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.

2 1 4 zu 9tA0Antv^ of tu S^v^bAt dBge. [Essay i.
population of rural workmen and squatters gathering
behind the screen of recognised peasant holders.
The very foundation of the mediaeval system, its organ
isation 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 arbi
trary 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.
Emancipa- 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

lion.

Chap. VIL] JgaBoujT Anb ^int, 215
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 four
teenth century. In this manner facts were slowly paving
the way towards a modification of the law. But now, turn
ing 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 Contrast
entire structure of social divisions on the principle off^^^^^°
the lord's will. Custom, however sacred, is not equivalent and rent.
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 : (i) 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 ; (3) 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

2 1 6 zu ^tA0Antv^ of tu S^^^^^ <^5^* ^^^^^^ ^¦
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 termino
logical 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 protec
tion 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 actu
ally led to an increase in the number of free tenancies ^.
* Of course in later times the test appUed in drawing the hne between free
hold and baser tenure was much rather the mode of conveyance than any
thing 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 appUed, when the self-same
ceremony might be regarded either as the feoffment by subinfeudation of
a freehold tenant or the adraittance 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.

Chap. VIL] ZU Zi0t0 of ^^VfbOWl, 21 7
The courts made some attempts to utilise personal sub- Personal
jection as a distinctive feature of born villains. If it had ="''J«='^°"-
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 docu
ments. 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 per
sonal 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 distinc
tion 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. Three tests
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 con
secutive 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 land
marks between these several epochs, and it is clear that the
passage from one to another was very gradual, and by no

2 1 8 zu ^^A0Aniv^ of tU jfeu^af dElge. l^ssay i.

Historyof free
peasantry.

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 appear
ance 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 con
ditions. The Domesday classification ^kihi 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, 'terrarum 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
peeisantry. The disruption of political unity at the time of
the great civil war, and the systematic resumption of royal

Chap. VIL] <^t^tAbAtkn of ^VU {piA0Ant0. 219
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 juris
diction in regard to freeholders was counterbalanced by an
all but complete surrender of it in regard to villains. The
celebrated tit. 39 of William the Conqueror's laws provid
ing 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 de
parture. 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 inci
dents which imply villainage, and for a time distinction
between rural labour and rent becomes especially im
portant On the whole, I think that an analysis of the legal and

220

ZU ^iA0Antv^ of tu S^vibAt Mc^i,

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 free
holder 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.'

SECOND ESSAY.
THE MANOR
AND THE VILLAGE COMMUNITY.

CHAPTER I.
THE OPEN FIELD SYSTEM AND THE HOLDINGS.

M'V first essay has been devoted to the peasantry of Structure ofthemanor.

feudal England in its social character. We have had to ° * ^

examine its classes or divisions in their relation to freedom,
personal slavery, and praedial serfage. The land system
was touched upon only so far as it influenced such classifi
cation, or was influenced by it.
But no correct estimate of the social standing of the
peasantry can stop here, or content itself with legal or
administrative definitions. In ho degree of society
do men stand isolated, and a description of individual
status alone would be thoroughly incomplete. Men stand
arranged in groups for economical and political co
operation, and these groups are composed according to
the laws of the division and hierarchical organisation of
labour, composed, that is, of heterogeneous elements, of
members who have to fulfil different functions, and to
occupy higher and lower positions. The normal group
which forms as it were the constitutive cell of English
mediaeval society is the manor, and we must try to make
out in what way it was organised, and how it did its work
in the thirteenth century, at the time of fully developed
feudalism. The structure of the ordinary manor is always the same.
Under the headship of the lord we find two layers of
population — the villains and the freeholders ; and the terri
tory occupied divides itself accordingly into demesne land^
1 It should be observed that the word demesne (dominicum) is constantly
used in two different senses, (a) the narrower sense in which it stands ior;

2 24 Open fkib §^0ttm Anb %otbxn^0. [essayii.
and ' tributary land ' (if I may use that phrase) of two
different classes. The cultivation of the demesne depends
to a certain extent on the work supplied by the tenants of
the tributary land. Rents are collected, labour supervised,
and all kinds of administrative business transacted, by a
set of manorial officers or servants. The entire population
is grouped into a village community which centres round
the manorial court or halimote, which is both council and
tribunal. My investigation will necessarily conform to this
typical arrangement. The holding of the peasant is the
natural starting-point : it will give us the clue to the whole
agrarian system. Next may come that part of the territory
which is not occupied in severalty, but used in common.
The agrarian obligations with regard to the lord and the
cultivation of the demesne land may be taken up afterwards.
The position of privileged people, either servants or free
holders, must be discussed by itself, as an exceptional case.
And, lastly, the question will have to be put — to what extent
were all these elements welded together in the village com
munity, and under the sway of the manorial court ?
Field The chief features of the field-system which was in
sysems. operation in England during the middle ages have been
sufficiently cleared up by modern scholars, especially by
Nasse, Thorold Rogers, and Seebohm, and there is no
need for dwelling at length on the subject. Everybody
knows that the arable of an English village was commonly
cultivated under a three years' rotation of crops ' ; a two-
the land directly occupied and cultivated by the lord or for his use, and
excludes the land held by his -viUain tenants, aSid (i) the ¦wider sense iu which
it includes these ¦villain tenements. The first meaning is that which the
word usually bears in manorial documents, in which the dominicum is con
trasted with the viUenagium. or bondagium. But in legal pleadings and
documents which state the doctrine of the common law and the king's courts
the villain tenements are part of the lord's demesne, he is seised of them in
his demesne (m dominico suo). This discrepancy between what I may call
the manorial and the legal uses of the term deserves notice as an indication
of the imperfect adjustment of law to fact. I shaU use the term in its
narrower sense.
' Eynsham Cartulary, MSS. of Christ Church, Oxford, N. 27, £ x, a : ' Est
una cultura nuncupata Shyppelond, et continet in toto septem acras dimidiam
acram et dimidiam rodam, et valet acra 4d. , et bis successive seminatur.' Inqu.

Chap.L] CO\Xt0t Of ^m^Anbt^* 225
field system is also found very often ^ ; there are some
instances of more complex arrangements^, but they are
very rare, and appear late — not earlier than the fourteenth
century. Walter of Henley's treatise on farming, which
appears to belong to the first half of the thirteenth, men
tions only the first two systems, and its estimate of the
plough-land is based on them. In the case of a three-
field rotation a hundred and eighty acres are reckoned to the
plough ; a hundred and sixty in a system of two courses ^.
We find the same estimate in the chapters on husbandry
and management of an estate which are inserted in the
law-book known as Fleta*. The strips in the fields be
longing to the several tenants were divided by narrow balks
of turf, and when the field lay fallow, or after the harvest
had been removed, the entire field was turned into a
common pasture for the use of the village cattle. The
whole area was protected by an inclosure while it was
under crop.
p. mortem 20 Henry HI, N. 14 (Record Office) : ' Extensio manerii de Rem-
dun (Lincoln). Sunt ibidem 360 acre terre et faciunt duas carucatas. Et
seminata sunt per annum 240 acre . . . De waracto per annum 12 d.'
• Glastonbury Survey of 1189 (Roxburghe Ser.), 99: 'Idem tenet de
dominico tres acras a tempore Henrici episcopi quas coUt in uno anno et
altero non.'
' Eynsham Cart., i, a : ' Est ibidem prope alia cultura nuncupata Clay-
furlong et continet cura capitali inferiore octo acras unara rodam tres perticas
cum dimidia, et potest ter seminari successive, videlicet post warectum
ordiura, anno sequente cura grosso pulstro et anno tercio cum frumento,
et valet acra 8d  (Alia cultura) et potest ter seminari ut supra mutato
grosso pulstro in pisas.'
* Two husbandry treatises were chiefly in use in mediaeval England. The
fourteenth-century MS., Merton CoUege 91, contains both, and both raention
the two systems. (Modus qualiter balliui et prepositi debent onerari super
compotum reddendum et qualiter manerium custodiri), f 152 : ' E la vu les
chaumps sunt semez e parti en deus, le iuernage e le traraeys sunt tous
semez en un champ. '- (Maior husbonderia, otherwise Walter of Henley's
treatise), f. 15s : ' Si les terres seent partiz en iu, la une partie en le yuernage,
lautre plr'tie en le quaremel, e la tierce partie a warect, donqes est la
charrue de terre de x« acres' (sic, corr. ix-"-). 'E si vos terres seent
partez en ii, com sont en plusurs pays, la une partie a yuernage e a quaremel,
e. lautre partie a waret, donqes serra la charue de terre de viii^ acres.' Cf.
Thorold Rogers, Six Centuries, 75.
* Fleta, ii. 72.
VOL. I. Q

2 26 Opin fxdb ^^0tm Anb ^oibxno^e* [Essay il
inhoke. A curious deviation is apparent in the following in
stance, taken from the cartulary of Malmesbury. The
Abbey makes an exchange with a neighbour who has
rights of common on some of the convent's land, and
therefore does not allow of its being cultivated and inclosed
{inhoc facere). In return for certain concessions on the
part of the Abbey, this neighbouring owner agrees that
fallow pasture should be turned into arable on the con
dition that after the harvest it should return to common
use, as well as the land not actually under seed. Lastly
comes a provision about the villains of the person entering
into agreement with the Abbey : if they do not want to
conform to the new arrangement of cultivation, they will
be admitted to their strips for the purpose of ploughing
up or using the fallow^. The case is interesting in two
respects : it shows the intimate connexion between the
construction of the inclosure {inhoc) and the raising of the
crop ; the special paragraph about the villains gives us to
understand that something more than the usual rotation
of crops was meant : the ' inhokare ' appears in opposition
either to the ordinary ploughing up of the fallow, or in a
general sense to its use for pasture ; it seems to indicate
extra-cultivation of such land as ought to have remained
uncultivated. These considerations are borne out by other
documents. In a trial of Edward I's time the ' inheche' is
explained in as many words as the ploughing up of fallow
' Malmesbury Cart. (Rolls Ser.), ii. i86 : ' De terris inbladandis et inhoc
faciendis in campis de Brokeneberewe et de Burestone, a ponte de Jule-
brocke usque ad Halbrigge de Bremelham, ubi dictus Ricardus dicebat se
habere communam, ita quod nee abbas et conventus, nee eorum tenentes
possint inhoc facere sine consensu dicti Ricardi, nee pro volmitate sua terras
suas ibidem inbladare . . . Abbas et conventus concesserunt praedicto Ricardo
. . . ut cum terrae prenominatae inbladatae fuerint et blada a terris amota,
liberam et plenam communam in praefatis terris una cum abbate et suis
hominibus (habeat) sicut ipse vel praedecessores sui unquam melius et plenius
habere consueverunt. ... Ita quod si de campo predicto in quo factum est
inhoc pars quaedam remaneat inculta sine blado, in eadem parte habebunt
predictus Ricardus et heredes sui communam cum abbate et conventu et suis.
Similiter si villani praedicti Ricardi nolint inhokare terras suas infra praedic-
tum inhoc sitas, habebunt liberum ingressum et egressum ad warectandum
eas.'

Chap.L] to\Xt0^ Of %\H0^AnbV^, 22 7
for a crop of wheat oats, or barley i. The Gloucester
Survey, in describing one of the manors belonging to the
Abbey, arranges its land into four fields {campi), each
consisting of several parts : the first field is said to contain.
174 acres, the second 63, the third 109, the fourth 69 acres.
Two-thirds of the whole are subjected to the usual modes
of cultivation under a three-course system, and one-third
remains for pasture. But out of this last third, 40 acres
of the first field (of 174 acres) get inclosed and used for
crop in one year, and 30 acres of the second in another ^-
In this way the ordinary three-course alternation be
comes somewhat more complicated, and it will be hardly
too bold a guess to suppose that such extra-cultivation
implied some manuring of such patches as were deprived
of their usual rest once in three years. In contradiction
to the customary arrangement which did not require any
special manuring except that which was incident to the
use of arable as pasture for the cattle after the harvest,
we find plots set apart for more intense cultivation^,
' Coram Rege, HUl. 3 Edw. I, m. 17, d : ' Item quicumque facit inheche
scilicet excolit ivarectum frumento, ordeo vel auena, dabit pro qualibet acra
unum denarium, excepta una acra quam habere debet quietam.' See App. xii.
' Gloucester Cart. iii. 35, 36 : ' Omnes dictae particulae jacent pro uno
campo, summa 174 acre arabiles, etc. . . . Et de predicto campo possunt in-
hokari quolibet secundo anno 40 acre et valet inde commodum eo anno
10 solidos. . . . De dictis 63 acris possunt quolibet secundo anno inhokari
20 acre, et valet inde commodum eo anno 11 sol. 8d  Et est summa totalis
omnium acrarum arabilium 412. Et est summa dictarum acrarum in valore
denarioi-um 9 librae 12 soUdi. De quibus subtracta tertia parte pro campo
jacente ad warectum, 64 sol. scilicet, remanent ad extentara annuam de puro
6 librae 8 sol. et de coramodo terrae quae singulis annis potest inhokari
15 sol. lod.' — Cf Minor husbanderia, Merton Coll. MS. 91, f 152 : ' E si U ad
Inhom, i deit veer quele cuture i prent del Inhom, e de quel ble est seme
checune cuture, e tel seraail deit il cuUer tut per ly e respondre tut per
.ly, hors des autres blees.'
' Cart, of Boxgrave, Cotton MSS., Claudius, A. vi. p. 2 : ' Debet compostare
unam helvara ad frumentum et aliam ad ordeum.' Essex Court Rolls (Bod
leian), 4 : ' Milencia Tegulatrix posuit fimos in communa ad nocumentum
custumariorum.' Glastonbury Inquest of 1189 (Roxburghe Ser.), 141 : 'A. de
N. occupavit quendam mariscum per concessum Roberti abbatis et ilium
mariiavit et coluit.' Cf Domesday of St. Paul's (Camden Ser.), 8 : ' Dicunt
eciam quod emendatum est manerium in 50 acris marlatis per 'WUlelmum
Xhesaurarium ad summam 10 solidorum.' Ib. 21.
Q 3

2 28 Optn ^xttb ^Tfi0ttm Anb %otbxno^0^ [essayil
and it is to be noticed that the reckoning in connexion
with them does not start from the division according to
three parts, but supposes a separate classification in two
sections.
The Another fact worth noticing in the Gloucester instance
ampus- jg ^jjg irregular distribution of acres in the ' fields,' and the
division of the entire arable into four unequal parts. The
husbandry is conducted on the three-course system, and
still four fields are mentioned, and there is no simple relation
between the number of acres which they respectively contain
(174, 63, T09, 69). It seems obvious that the expression
' field ' {campus) is used here not in the ordinary sense sug
gested by such records as spring-field, winter-field, and the
like, but in reference to the topography of the district. The
whole territory under cultivation was divided into a number
of squares or furlongs which lay round the village in four
large groups. The alternation of crops distributed the
same area into three according to a mode not described by
the Survey, and it looks probable at first glance that each
of the ' fields ' {campi) contained elements of all three
courses. The supposition becomes a certainty, if we reflect
that it gives the only possible explanation of the way in
which the twofold alternation of the 'inhoc' is made to fit
with the threefold rotation of crops : every year some of
the land in each campus had to remain in fallow, and could
be inclosed or taken under ' inhoc' Had the campus as a
whole been reserved for one of the three courses, there
would have been room for the ' inhoc ' only every three
years. I have gone into some details in connexion with this
instance because it presents a deviation from ordinary
rules, and even a deviation from the usual phraseology,
and it is probable that the exceptional use of words de
pended on the exceptional process of farming. A new
species of arable — the manured plot under ' inhoc ' — came
into use, and naturally disturbed the plain arrangement of
the old-fashioned three courses ; the lands had to be grouped
anew into four sections which went under the accustomed

Chap l] £:ouv0e of ^wU^bt^' 229
designation of ' fields,' although they did not fit in with the
'three fields' of the old system. In most cases, however, our
records use the word ' field ' {campus) in that very sense of
land under one of the ' courses,' which is out of the ques
tion in the case taken from the Gloucester Cartulary.
The common use is especially clear when the documents
want to describe the holding of a person, and mention the
number of acres in each ' field.' The Abbot of Malmesbury,
e. g., enfeoffs one Robert with a virgate formerly held ' in
the fields ' by A., twenty-one acres in one field and twenty-
one in another^. The charter does not contain any descrip
tion of campi in the territorial sense, and it is evident that
the expression ' in the fields ' is meant to indicate a cus
tomary and well-known husbandry arrangement. The
same meaning must be put on sentences like the follow
ing : — R. A. holds a virgate consisting of forty-two acres
in both fields ^. The question may be raised whether we
have to look for 'both fields' in the winter and spring-
field of the three courses rotation, or in the arable and
fallow of the two courses. In the first of these eventuali
ties, the third reserved for pasture and rest would be left
out of the reckoning ; it would be treated as an appurten
ance of the land that was in cultivation. Cases in which
the portions in the several fields are unequal seem to point
to the second sense ^. It was impossible to divide the
whole territory under cultivation like a piece of paper :
conformation of the soil had, of course, much to do with
the shape of the furlongs and their distribution, and the
' Malmesbury Cart. (RoUs Ser."), ii. 27 : 'Concessimus. . . Roberto filio
Roberti . . . Ulam virgatam terre quara A. de C. tenuit in campis, scihcet in
uno campo 21 acras et in alio campo 21 acras.'
^ Gloucester Cart., iii. 194 : ' Robertus Abovetun tenet unam virgatam terre
continentem 44 acras in utroque campo.'
' Ramsey Register, Cotton MSS., Galba, E. x. 27, d : ' Radulfus tenet 11
seliones in uno campo et 5 in alio de vUenagio.' 'Worcester Cart. (Camden
Ser.), 62, a : ' Henricus clericus tenet unam virgatam, 16 acras in uno campo
et 14 in aUo. Item tenet aliam virgatam simiUter. T. T. tenet unam virgatam,
15 acras excepto dimidio furtendello in uno campo et 11 in alio. O. le E.
tenet unam virgatam 13 a. et | in uno campo et 12 et dimidiam in alio.
T. le F. tenet unam ¦virgatam, 16 acras in uno campo et 12 in aUo.'

230 Optn §ktb ^g0(em Anb f^otbxnz0. [essayil
courses of the husbandry could not impress themselves
on it without some inequalities and stray remnants. It
may happen for this reason that a man holds sixteen
acres in one field and fourteen in the other. There is
almost always, however, a certain correspondence between
the number of acres in each field ; instances of very
great disparity are rare, and suppose some local and
special reasons which we cannot trace. Such disparities
seem to point, however, to a rotation according to two
courses, because the fallow of the three courses could have
been left out of the reckoning only if all the parts in the
fields were equals I think that a careful inspection ofthe
surveys from this point of view may lead to the conclusion
that the two courses rotation was very extensively spread
in England in the thirteenth century.
Com- A most important feature of the mediaeval system of
rotatTo'n tillage was its compulsory character. The several tenants,^
of crops, even when freeholders, could not manage their plots at
their own choice ^. The entire soil of the township formed
one whole in thisTespect, and was subjected to the manage
ment of the entire village. The superior right of the com
munity found expression in the fact that the fields were
open to common use as pasture after the harvest, as well
as in the regulation of the modes of farming and- order of
tillage by the township. Even the lord himself had to con
form to the customs and rules set up by the community,
and attempts to break through them, although they become
frequent enough at the close of the thirteenth century, and
especially in the fourteenth, are met by a resistance which
sometimes actually leads to litigation*. The freeholders
' As in Gloucester Cart., i. 246 : 'Ecclesiam Omnium Sanctorum . . . cum
omnibus pertinenciis suis, videlicet unam virgatam ten-ae, undecim acras
terrae in campo lucrabili.' Cf 247.
2 Dunstable Cart., Harleian MSS. 1885, f 7, d : ' Postquam buttum habui
mus bis seminatio fuerit et non amplius, quia omnes ceteri non excolunt
ibi terram, sed at pascua reservant.'
' Eynsham Cart., Christ Church, Oxford, MSS., N. 27, f 74, b : ' Placitum
de Haneberge in recordo de banco de termino S" Trinitatis anni xliij
(Edw. Ill) ... Est quidam hamelettus vocatus Tilgerdesle infra bundos viUe

Chap.L] ^niivmi)c^b ^txip0, 231
alone have access to the courts, but in practice the entire
body of the tenantry is equally concerned. The passage
towards more efficient modes of cultivation was very much
obstructed by these customary rules as to rotation of crops,
which flow not from the will and interest of single owners,
but from the decision of communities.
The several plots and holdings do not lie in compact Inter-
patches, but are formed of strips intermixed with each "i""'"'^
1 rx-i 01 strips.
other. The so-called open-field system has been treated so
exhaustively and with such admirable clearness by See
bohm, that I need not detain my readers in order to discuss
it at length. I shall merely take from the Eynsham Cartulary
the general description of the arable of Shifford, Oxon.
It consists of several furlongs or areas, more or less rectan
gular in shape ; each furlong divided into a certain number
of strips {seliones), mostly half an acre or a rood (quarter
acre) in width ; some of these strips get shortened, however
{seliones curiae), or sharpened {gorae), according to the
de Eynesham, infra quem hamelettum tam in vastis quam in terris, pratis et
pasturis eiusdem hameletti iidem Johannes Smyth et omnes alii habent com
munam cum omnibus averiis suis tanquam pertinens ad tenernenta sua que
ipsi separati tenent in Hanberge, scilicet in vasto et pastura quolibet anno
per totum annum et in terris arabilibus post blada messa et asportata
quousque . . . resemenentur et quolibet tercio anno tempore warecti per
totum annum eo quod omnes terrae arabiles infra dictum hamelettum per
duos annos continuos debent seminari et tercio anno warectari, et in pratis
post fenum levatum et asportatum usque ad festum purificacionis beate Marie.
. . . Et dicunt quod diversis vicibus quibus predictus Abbas nunc queritur etc.
diuerse parcelle terrarum arabUium in hameletto predicto que tunc temporis
¦warectare debuissent per predictum abbatem et alios seminate fuerunt per
quod ipsi tam in parceUis illis sic seminatis que tunc temporis warectare
debuerunt quam in aliis vastis, pratis et pascuis hameletti predicti in com
muna sua cum aueriis suis prout eis bene licuerit usi fuerunt . . . Et predictus
abbas non cognoscit quod terre arabiles infra haraelettura predictura quolibet
tercio anno debent warectari, imrao protestando quod eedem terre per tres
annos continuos debent seminari et quarto anno warectari.' The case is a
rather complicated one, because the persons claiming common are not tenants
of the Abbot but of the King. Still, their pretensions are grounded on the
customary order of farming in a hamlet belonging to the manor of Eynsham,
and this' is the point which concerns us. Cf Coram Rege, Pascha, 25
Henry III: 'Abbas . . . partitus fuit terras suas in tres partes quae antea
partitae fuerunt in duas partes.' See also Placit. Abbrev. 153. The case is
quoted by Scrutton, Common Fields, 57.

2 32 Open fkib ^^0tim Anb %o2bxnQ0, [Essay n.
shape of the country. At right angles with the strips in
the fields lie the 'headlands' {capitates), which admit to
other strips when there is no special road for the purposed
When the area under tillage abuts against some obstacles, as
against a highway, a river, a neighbouring furlong, the strips
are stunted {bullae). Every strip is separated from the next
by balks on even ground, and linches on the steep slopes of
a hill. The holding of a peasant, free or villain, has been
appropriately likened to a bundle of these strips of different
shapes, the component parts of which lie intermixed with the
elements of other holdings in the different fields of the
township. There is e. g. in the Alvingham Cartulary a deed
by which John Aysterby grants to the Priory of Alving
ham in Lincolnshire his villain Robert and half a bovate
of land ^. The half- bovate is found to consist of twelve
strips west of Alvingham and sixteen strips east of the
village ; the several plots lie among similar plots owned
by the priory and by other peasants. The demesne land
of the priory is also situated not in compact areas, but
in strips intermixed with those of the tenantry, in the
' communal fields ' according to the phraseology of our
documents. Such a distribution of the arable seems odd enough.
It led undoubtedly to very great inconvenience in many
ways : it was difficult for the owner to look after his pro
perty in the several fields, and to move constantly from one
place to another for the purposes of cultivation. A thrifty
husbandman was more or less dependent for the results of
his work on his neighbours, who very likely were not
thrifty. The strips were not always measured with exact
ness ^, and our surveys mention curious misunderstand
ings in this respect : it happens that as much as three
' Some of these expressions are interesting. Balk is the O. N. bdlkr\gora
is the spear-head or its long triangular shape, O. E. gar, O. N.geirr. These
linguistic affinities have been pointed out to me by Mr. F. York Powell.
2 Alvingham Priory Cart., Laud MSS. 642 (Bodleian), f 12. Cf Malmes
bury Cart. u. 294 ; Madox, History of the Exchequer, 258.
^ Eynsham Cart., 5, a: 'I. I. virgatarius . . . Idem tenet unam seUonem
terre apud Blakelond non mensuratam.'

Chap L] ^ntttWlM ^ttXlp0. 233
acres belonging to a particular person get mislaid some
how and cannot be identified ^. It is needless to say that
disputes among the neighbours were rendered especially
frequent by the rough way of dividing the strips, and by
the cutting up of the holdings into narrow strips involving
a very long line of boundary. And still the open-field
system, with the intermixed strips, is quite a prevalent
feature of mediaeval husbandry all over Europe. It covers
the whole area occupied by the village community ; it is
found in Russia as well as in England.
Before we try to find an explanation for it I shall call Division
the attention of the reader to the following tale pre- ?[|^g^g^^
served by an ancient survey of Dunstable Priory. I think
that the record may suggest the explanation with the
more authority as it will proceed from well-established
facts and not from suppositions ^. The story goes back
to the original division of the land belonging to the
Wahull manor by the lords de Wahull and de la Lege.
The former had to receive two-thirds of the manor and
the latter one-third : a note explains this to mean,
that one had to take twenty knight-fees and the other
ten. The lord de Wahull took all the park in Segheho
and the entire demesne farm in ' Bechebury.' As a
compensation for the surrender of rights on the part
of his fellow parcener, he ordered the wood and pasture
called Northwood to be measured, as also the neighbouring
wood called Churlwood. He removed all the peasants
who lived in these places, and had also the arable of
Segheho measured, and it was found that there were eight
hides of villain land. Of these eight hides one-fourth was
taken, and it was reckoned that this fourth was an equiva
lent to the one-third of the park and of the demesne farm,
which ought by right to have gone to the lord de la Lege.
On the basis of this estimation an exchange was effected.
' Domesday of St. Paul's, 11: ' Laurencius de hospitale dimidiam vir
gatam pro 40 denariis ; tres acre quas tenuit Laurencius sine servicio inveniri
non possunt.'
^ Dunstable Priory Cart., Harleian MSS. 1885, f 7, d. See Appendix xiii.

234 Open ^xiib ^^0ttm Anb %otbxnQ0, [essayil
In the time ofthe war (perhaps the rebellion of 1173)
the eight hides and other hides in Segheho were
encroached upon and appropriated unrighteously by
many, and for this reason a general revision of the
holdings was undertaken before Walter de Wahull and
Hugh de la Lege in full court by six old men ; it was
made out to which of the hides the several acres belonged.
At that time, when all the tenants in Segheho (knights,
freeholders, and others) did not know exactly about the
land of the village and the tenements, and when each man
was contending that his neighbours held unrighteously
and more than they ought, all the people decided by com
mon agreement and in the presence of the lords de Wahull
and de la Lege, that everybody should surrender his land
to be measured anew with the rood by the old men as if
the ground had been occupied afresh : every one had to
receive his due part on consideration of his rights. At
that time R. F. admitted that he and his predecessors had
held the area near the castle unrighteously. The men in
charge of the distribution divided that area into sixteen
strips (buttos), and these were divided as follows : there
are eight hides of villain land in Segheho and to each two
strips were apportioned.
Inter- The narrative is curious in many respects. It illustrates
produced beautifully the extent to which the intermixture of plots
by the wish was carried, and the inconveniences consequent upon it
to fiQU3.1lSfi
the shares. Although the land had been measured and divided at the
time when the lord de Wahull took the land, everything
got into confusion at the time of the civil war, and the
disputes originated not in violence from abroad but in
encroachments of the village people among themselves : the
owners of conterminous strips were constantly quarrelling.
A new division became necessary, and it took place
under circumstances of great solemnity, as a result of an
agreement effected at a great meeting of the tenantry before
both lords. The new distribution may stand for all pur
poses in lieu of the original parcelling of the land on fresh
occupation. The mode of treating one of the areas shows

chap.lj ®it)i0ion of BAnb, 235
that the intermixture of the_strip&-was- a direct conse- <^
quence ^nheattempt to equalise the portions. Instead of
putting the whole ^n5rs^area4nto one lot, the old men
divide it into strips and assign to every great holding, to
every hide, two strips of this area. Many inconveniences
follow for some of the owners, e. g. for the church which, it
is complained, cannot put its plot to any use on account of
its lying far away, and in intermixture with other people's
land. But the guiding principle of equal apportionment
has found a suitable expression.
We may turn now from the analysis of this case to Possible
general considerations. The important point in the in- ^"jd^g
stance quoted was, that the assignment of scattered strips the land.
to every holding depended on the wish to equalise the
shares of the tenants. I think it may be shown that the
treatment adopted in Segheho was the most natural, and
therefore the most widely-spread one. To begin with,
what other form of allotment appears more natural in a
crude state of society ? To employ a simile which I have
used already, the territory of the township is not like a
homogeneous sheet of paper out of which you may cut
lots of every desirable shape and size : the tilth will
present all kinds of accidental features, according to
the elevation of the ground, the direction of the water
courses and ways, the quality of the soil, the situation of
dwellings, the disposition of wood and pasture-ground, etc.
The whole must needs be dismembered into component
parts, into smaller areas or furlongs, each stretching over
land of one and the same condition, and separated from
land of different quality and situation. Over the irregular
squares of this rough chess-board a more or less entangled
network of rights and interests must be extended. There
seem to be only two ways of doing it: if you want the hold
ing to lie in one compact patch you will have to make a
very complicated reckoning of all the many circumstances
which influence husbandry, will have to find some numeri
cal expression for fertility, accessibility, and the like ; or
else you may simply give every householder a share in

236 Ojjen S^db ^^0fettt Anb ^o2bxnQ0, [Essayh.
every one of the component areas, and subject him in this
way to all the advantages and drawbacks which bear upon
his neighbours. If the ground cannot be made to fit the
system of allotment, the system must conform itself to the
ground. There can be no question that the second way of
escaping from the difficulty is much the easier one, and
very suitable to the practice of communities in an early
stage of development. This second way leads necessarily
to a scattering and an intermixture of strips. The ex
planation is wide enough to meet the requirements of cases
placed in entirely different local surroundings and historical
connexions ; the tendency towards an equalising of the
shares of the tenantry is equally noticeable in England and
in Russia, in the far west and in the far east of Europe. In
Russia we need not even go into history to find it operating
in the way described ; the practice is alive even now.
Individual This intermixture of strips in the open fields is also
of arable™ characteristic in another way : it manifests the working of
and com- a principle which became obliterated in the course of
munal , . 1111 ¦ • . ,,
rights. history, but had to play a very important part originally.
It -was a system primarily intended for the purpose of
equalising shares, and it considered every man's rights and
property as interwoven with other people's rights and
property : it was therefore a system particularly adapted
to bring home the superior right of the community as a
whole, and the inferior, derivative character of individual
rights. The most complete inference from such a general
conception would be to treat individual occupation of the
land as a shifting ownership, to redistribute the land
among the members of the community from time to time,
according to some system of lot or rotation. The western
village community does not go so far, as a rule, in regard to
the arable, at least in the time to which our records belong.
But even in the west and particularly in England, traces
of shifting ownership, ' shifting severalty,' may be found as
scattered survivals of a condition which, if not general, was
certainly much more widely spread in eariier times ^ The
' Elton, English Historical Review, i. 435.

Chap.L] <S)i0ttxU(kn of BAnb , 237
arable is sometimes treated as meadows constantly are :
every householder's lot is only an ' ideal ' one, and may be
assigned one year in one place, and next year in another.
The stubborn existence of intermixed ownership, even as
described by feudal and later records, is in itself a strong
testimony to the communal character of early property.
The strips of the several holders were not divided by
hedges or inclosures, and a good part of the time, after
harvest and before seed, individual rights retreated before
common use ; every individualising treatment of the soil
was excluded by the compulsory rotation of crops and the
fact that every share consisted of a number of narrow strips
wedged in among other people's shares. The husbandry
could not be very energetic and lucrative under such pressure,
and a powerful consideration which kept the system work
ing, against convenience and interest, was its equalising and
as it were communal tendency. I lay stress on the fact :
if the open-field system with its intermixture had been
merely a reflection of the original allotment, it would have
certainly lost its regularity very soon.^ People could not
be blind to its drawbacks from the point of view of indi
vidual farming ; and if the single strips had become private
property as soon as they ceased to be shifting, exchanges,
if not sales, would have greatly destroyed the inconvenient
network. The lord had no interest to prevent such ex
changes, which could manifestly lead to an improvement
of husbandry ; and in regard to his own strips, he must
have perceived soon enough that it would be better to
have them in one compact mass than scattered about in.
all the fields. And still the open-field intermixture holds
its ground all through the middle ages, and we find its sur
vivals far into modern times. This can only mean, that
even when the shifting, ' ideal,' share in the land of the
community had given way to the permanent ownership by
each member of certain particular scattered strips, this
permanent ownership did by no means amount to pri
vate property in the Roman or in the modern sense.
The communal principle with its equalising tendency

238 Op^n fxdb §^0tim Anb ^otbxn^0, [e^say il
remained still as the efficient force regulating the whole,
and strong enough to subject even the lord and the free
holders to its customary influence. By saying this I do
not mean to maintain, of course, that private property
was not existent, that it was not breaking through the
communal system, and acting as a dissolvent of it.\. I
shall have to show by-and-by in what ways this process
was effected._? But the fact remains, that the system which
prevailed upon the whole during the middle ages appears
directly connected in its most important features with
ideas of communal ownership and equalised individual
rights.
Arrange- These ideas are carried out in a very rough way in the
holdings, mediaeval arrangement of the holding, which is more compli
cated in England than on the continent. According to a very
common mode of reckoning, the hide contains four virgates,
every virgate two bovates, and every bovate fifteen acres.
The bovate (oxgang) shows by its very name that not only
the land is taken into account, but the oxen employed in its
tillage, and the records explain the hide or carucate ^ to be
the land of the eight-oxen plough, that is so much land as
may be cultivated by a plough drawn by eight oxen. The
virgate, or yard-land, being the fourth part of a hide, cor
responds to one-fourth part of the plough, that is, to two
oxen, contributed by the holder to the full plough-team ;
the bovate or oxgang appears as the land of one ox, and
the eighth part of the hide ^. Such proportions are, as I
said, very commonly found in the records, but they are by
no means prevalent everywhere. On the possessions of
Glastonbury Abbey, for instance, we find virgates of forty
acres, and a hide of i6o ; and the same reckoning appears
in manors of Wetherall Priory, Westmoreland^, of the
Abbey of Eynsham, Oxfordshire*, and many other places.
' The expressions are not identical, but they ought both to correspond to
the ploughteam.
^ As to all this, see Seebohm, Village Community.
' Glastonbury Inqu. (Roxburghe Ser.), 144, v. Hide, virgate.
* Eynsham Cart., 4, a.

Chap.L] QUea0tttre0 of BAnb, 239
The so-called Domesday of St Paul's reports \ that in
Runwell eighty acres used to be reckoned to the hide, but
in course of time new land was acquired (for tillage) and
measured, and so the hide was raised to 120 acres. Alto
gether the supposition of an uniform acre-measurement of
bovates, virgates, hides, and knights' fees all over England
would be entirely misleading. The oxen were an important
element in the arrangement, but of course, not the only one.
The formation of the holding had to conform also to the
quality of the soil, the density of the population, etc. We
find in any case the most varying figures. The knight's fee
contained mostly four or five full ploughs or carucates,
and still in Lincolnshire sixteen carucates went to the
knight's fee 2. The carucate was not identical with the
hide, but carucate and hide alike had originally meant
a unit corresponding to a plough-team. Four virgates
were mostly reckoned to the hide, but sometimes six,
eight seven are taken \ The yardlands (virgates) or full
lands, as they are sometimes called, because they were
considered as the typical peasant holdings, consist of fif
teen, sixteen, eighteen, twenty-four, forty, forty-eight, fifty,
sixty-two, eighty acres, although thirty is perhaps the figure
which appears more often than any other*. Bovates of

' Domesday of St. Paul's : ' Manerium istud secundum dictum juratorum
continet octo hidas, et hida continet sexcies viginti acras, set antiqua inqui
sicio dixit, quod non consuevit continere nisi quater viginti, quia postmodum
exquisite sunt terre et mensuratae.'
' Inqu. post mort. 30 Henry III, N. 36 : ' Extensio de terris Roberti de
.Sancto Georgio (in com. Lincoln.) . , . tenuit in capite de domino Rege 20
bovatas terre et dimidiam pro servicio sexte partis unius feodi militis. . . . Et
Robertus de Drayton tenet 2 bovatas et quartam partem unius bovate terre
de dicto Roberto per forinsecum servicium tantum, unde 16 carucate terre
faciunt feodum militis.'
* Rot. Hundred, ii. 631, b ; ' . . . et ad dictam villam pertinent sex hide
quarum quelibet continet 6 virgatas terre et quelibet virgata continet 30 acras.'
Ramsey Survey, Galba, E. x. 41 : ' In una hydarum istarum . . . septem
virgatae 4 acris minus.' Eynsham Cart., 21, a; ' Et abbas habet in eodem
manerio 4 carucatas terre et continent 16 virgatas terre in dominico et in
¦viUenagio 16 virgatas terre.'
* Ramsey Cart. (RoUs Ser.), i. 55, 284, 295, 309, 333, 373, 380 ; Ely Inqu.,
Claudius, xi. 82, 95, 97, 121, 129, 186; Gloucester Cart., iii. 128, 142, 145,

240 Open §xdb §^0tim Anb ^otbxnQ0. [essayh.
ten, twelve, and sixteen acres are to be found in the same
locality ^ We cannot even seize hold of the acre as the
one constant unit among these many variables ; the size of
the acre itself varied from place to place. In this way any
attempt to establish a normal reckoning of the holdings
will not only seem hazardous, but will actually stand in
contradiction with patent facts.
The hold- Another circumstance seems of yet greater import :
strictly' ^^^" within the boundaries of one and the same commu-
equal in nity the equality was an agrarian one and did not amount
^^^" to a strict correspondence in figures. It was obviously
impossible to cut up the land among the holdings in such
a way as to make every one contain quite the same
number of acres as the rest In the Cartulary of Ramsey
it is stated, that in one of the manors the virgate contains
sometimes forty-eight acres and sometimes less ^. The
Huntingdon Hundred Rolls mentions a locality where
some of the half-virgates have got houses on their plots
and some have not*. In the Dorsetshire manor of New
ton, belonging to Glastonbury, we find a reduction of
the duties of one of the virgates because it is a small one *.
A. curious instance is supplied by the same Glastonbury
survey as to the Wiltshire manor of Christian Malford :
one of the virgates was formed out of two former virgates,
which were found insufficient to support two separate
households ®.
This last case makes it especially clear that the object
196 ; Coram Rege, HiU. 3 Edw. I, 17, b ; Eynsham Cart., 11, a ; 88, a ; Rot.
Hundr., ii. 605, b.
'- Chapter-house Boxes, A. ^, m. 31-33.
2 Ramsey Cart. (Rolls Ser.), i. 334: 'Aliquando 48 acre faciunt virgatam
et aliquando pauciores.'
' Rot. Hundr., n. 628, b.
* Glastonbury Inqu. (Roxburghe Ser.), 134 : ' . . . R. de 'W. unam virgatam
pro 4 solidis pro omni servicio quia terra parva est.'
^ Ibid., 113: 'Super hanc virgatam terre fuerunt olim 2 domus et pro
duabus virgatis computata fuit terra iUa, sed quia non potuerant 2 homines ibi
vivere, redacte iUe 2 virgate ad unam, et sicut audierant dicere 7 soUdi red-
debantur, sed nunquam hoc viderunt et facit idem servitium quod aUi faciunt
virgarii.'

Chap.L] (^iA0UHmtnt0 of BAnb. 241
was to make the shares on the same pattern in point of
quality, and not of mere quantity. It is only to be re
gretted that manorial surveys, hundred rolls, and other
documents of the same kind take too little heed of such
variations, and consider the whole arrangement merely
in regard to the interests of the landlord. For this purpose
a rough quantitative statement was sufficient. They give
very sparing indications as to the facts underlying the
system of holdings ; their aim is to reduce all relations to
artificial uniformity in order to make them a fitter basis for
the distribution of rents and labour services. But very
little attention is required to notice a very great difference
between such figures and reality. In most of the cases,
when the virgate is described in its component parts, we
come across irregularities. Again, each component part
is more or less irregular, because instead of the acres
and half-acres the real ground presents strips of a very
capricious shape. And so we must come to the con
clusion, that the hide, the virgate, the bovate, in short
every holding mentioned in the surveys, appears primarily
as an artificial, administrative, and fiscal unit which
corresponds only in a very rough way to the agrarian
reality. This conclusion coincides with the most important fact. Acre ware.
that the reckoning of acres in regard to the plough-team
is entirely different in the treatises on husbandry from
what it is in the manorial records drawn up for the
purpose of an assessment of duties and payments.
Walter of Henley and Fleta reckon 180 acres to the
plough in a three-field system, and 160 in a two-field
system. Now these figures are quite exceptional in
surveys, whereas lao acres is most usual without any
distinction as to the course of rotation of crops. The
relation between the three-field ploughland of 180 acres
and the hide of 130 suggests the inference that the
official assessment started from the prevalence of the
three-field rotation, and disregarded the fallow. But the
inference is hardly sufficient to explain the facts of the
VOL. I. R

242 Open §kib §^0tim Anb ^oSbxn^0* [Essay il
case. The way towards a solution of the problem is indi
cated by the terminology of the Ely surveys in the British
Museum. These documents very often mention virgates
and full yardlands of twelve acres de ware ; on the other
hand, the Court Rolls from Edward I's time till Elizabeth's,
and a survey of the reign of Edward III, show the virgate
to consist of twenty-four acres ^. The virgate de ware cor
responds usually to one-half of the real virgate ; I say
usually, because in one case it is reckoned to contain
eighteen acres in the place of twenty-four mentioned in
the rolls and the later survey ^. Such ' acre ware ' are to
be found, though rarely, in other manors besides those of
Ely minster *. The contradiction between the documents
may be taken at first glance to originate in a difference
between the number of acres under actual tillage and the
number of acres comprised in the holding: perhaps the
first reckoning leaves out the fallow. This explanation has
been tried by Mr. O. Pell, the present owner of one of the
Ely manors : he started it in connexion with an etymology
which brought together ' ware ' and ' warectum ' : on this
assumption twelve acres appeared instead of twenty-four,
because the fallow ofthe two-field system was left out of the
reckoning. But this reading of the evidence does not seem
satisfactory ; it is one-sided at the least. Why should the
holding from which the ' warectum ' has been left out get
its name from the ' warectum ' ? How is one to explain
either from the two-field or from the three-field system the
case when eighteen ' acre ware ' correspond to twenty-four
common acres, or the even more perplexing case when
eighteen acres of ' ware ' go to the full land and twelve to
half-a-full land * ? In fact, this last instance does not
admit of any explanation from natural conditions, because
in the natural course of things twelve will never come to
• O. C. Pell in the Transactions- of the Cambridge Archaeological Society, •
vi. 17 sqq., 63 sqq.
^ Ely Inqu., Claudius, C xi. 30, a.
^ Duchy of Lancaster Court Rolls, B'= 62, N. 750 ; 3, b. Burton Cartulary,
Transactions of the Staffordshire 'William Salt Society, pp. 22, 28.
* Ely Inqu., 31, b.

Chap. L] ' (^aVa/ 243
be one-half of eighteen. Thus we are driven to assume
that the ' ware ' reckoning is an artificial one : as such it
could, of course, treat the half-holdings in a different way
from the full holdings. Now the only possible basis for an
artificial distribution seems to be the assessment of rents
and labour. Starting from this assumption we shall have
to say that the virgate ' de wara ' represents a unit of
assessment in which twelve really existing acres have been
left out of the reckoning. The assessment stretches only
over half the area occupied by the real holding.
The conclusion we have come to is corroborated by the
meaning of the word ' wara.' The etymological connexion
with warectum is not sound ; the meaning may be
best brought out by a comparison with those instances
where the word is used without a direct reference to the
number of acres. We often find the expression ' ad in-
waram ' in Domesday, and it corresponds to the plain ' ad
gildam Regis/ If a manor is said to contain seven hides
ad inwaram, it is meant that it pays to the king for seven
hides, although there may have been more than seven
ploughteams and ploughlands. Another expression of
like import is, ' pro sextem hidis se defendit erga Regem.'
The Burton Cartulary, the earliest survey after Domesday,
employed the word ' wara ' in the same sense ^. It is not
difficult to draw the inference from the above-mentioned
facts : the etymological connexion for ' wara ' is to be sought
in the German word for defence — ' wehre.' The manor de
fends itself or answers to the king for seven hides. The
expression could get other special significations besides the
one discussed : we find it for the poll-tax, by which a free
man defends himself in regard to the state ^, and for the weir,
which prevents the fish from escaping into the river *.
' Burton Cart. CWiUiam Salt Ser.), 22, 28. Compare Peoples, Ranks and
Laws, cap. 3 (Schmid, p. 388).
^ Peterborough Cart., Cotton MSS., Faustina, B. iii. 97 : ' Libera wara est
unus redditus et est talis condicionis quod si non solvatur . . . duppUcatibur in
crastino et sic in dies.'
' BeauUeu Cart., 103 : ' Et inveniet hominem ad gurgitem faciendum et
waram.' R a

244 Open Sef^ ^^0(eitt Anb %oibxnQ0> [Essay ii.
Hides of This origin and use of the term is of considerable
assessmen . jjj,portance, bocause it shows the artificial character of the
system and its close connexion with the taxation by the
State. This is a disturbing element which ought to be
taken into account by the side of the agrarian influence.
There cannot be the slightest doubt that the assessment
started from actual facts, from existing agrarian conditions
and divisions. The hide, the yardland, the oxgang existed
not only in the geld-rolls, but in fact and on the ground.
But in geld-rolls they appeared with a regularity they
did not possess in real fact ; the rolls express all modi
fications in the modes of farming and all exemptions, not
in the shape of any qualification or lighter assessment
of single plots, but by way of striking off from the number
of these plots, or from the number of acres in them ; the
object which in modern times would be effected by the
registration of a ' rateable value ' differing from the ' actual
value ' was effected in ancient times by the registration of
a ' rateable size ' differing from the ' actual size ' ; lastly,
the surveys and rolls of assessment do not keep time with
the actual facts, and often reflect, by their figures and
statistics, the conditions of bygone periods. The hides of
the geld or of the ' wara ' tend to become constant and
rigid : it is difficult for the king's officers to alter their
estimates, and the people subjected to the tax try in every
way to guard against novelties and encroachments. The
real agrarian hide-area is changing at the same time because
the population increases, new tenements are formed, and
new land is reclaimed.
We find at every step in our records that the assessment
and the agrarian conditions do not coincide. If a manor
has been given to a convent in free almoign (in liberam et
perpetuam eleemosynam), that is, free from all taxes and
payments to the State, there is no reason to describe it
in units of assessment, and in fact such property often
appears in manorial records without any ' hidation ' or
reckoning of knight- fees ^. The Ramsey Cartulary tells
' Rot. Hundr., u. 323 : ' Tenementum quod non est hidatum nee feodatum.'

Chap, l] Q^ni(0 of <2l00e00itten(. 245
us that the land in Hulme was not divided into hides and
virgates^- There are holdings, of course, and they are
equal, but they are estimated in acres. When the hidation
has been laid on the land and taxes are paid from it, the
smaller subdivisions are sometimes omitted : the artificial
system of taxation does not go very deep into details.
Even if most part of the land has been brought under the
operation of that system, some plots are left which do not
participate in the common payments, and therefore are
said to be ' out of the hide ^.' Such being the case, there
can be no wonder that one of the Ramsey manors answers
to the king for ten hides, and to the abbot for eleven and
a-half 3.
It is to be noted especially, that although in a few cases
a difference is made between the division for royal assess
ment and for the manorial impositions, in the great majority
of cases no such difference exists, and the duties in regard
to the king and to the lord are reckoned according to the
same system of holdings. On the manors of Ely, for in
stance, the 13 acreware * form the basis of all the reckoning
of rents and work. And so if the royal assessment appear
with the features of an artificial fiscal arrangement, the same
observation has to be extended to the manorial assessment ;
and thus we reach by another way the same conclusion
which we drew from an analysis of the single holding and
of its component parts. No doubt the whole stands in
close relation to the reality of cultivation and land-holding,
but the rigidity, regularity, and correctness of the system
present a necessary contrast to the facts of actual life. As
1 Ramsey Cart. (Rolls Ser.), i. 401 : ' Terrae de Hulmo non sunt distinctae
per hydas vel per virgatas.' 413 : ' Nescitur quot virgatae faciunt hidam,
nee quot acrae faciunt virgatam.' Cf 405. Glastonbury Inqu. (Roxburghe
Ser.), 5 : ' . . . Nescit quantum amuntat in hida.'
" Ramsey Cart. i. 441 : ' Terrae quae sunt extra hydam et quae non dant
hydagium.' 355 : ' Virgatam extra hydam firmarius appropriavit.' 324 :
' Ponere extra hydam.'
' Ibid. 473 : ' ViUata defendit, etc. versus Regem pro 10 hydis et versus
abbatem pro 1 1 hydis et dimidia.'
* Ely Inqu., Cotton MSS., Claudius, C. xi. 38, b : 'Plena terra que facit
12 acras de ware.'

anCe.

246 ^p^n ^xdb ^^0(em Anb ^otbxnc^0, [Essay il
the soil could not be made to fit into geometrical squares,
even so the population could not remain without change
from one age to the other within the same boundaries.
Thus in course of time the plough-land of 160 and 180
acres, which is the plough-land of practical farming,
appears by the side of the statutory hide of 120 acres ;
and so again inside every single holding there comes up
the contrast between its real conformation and distribution,
and the outward form it assumed in regard to the king,
the lord, and the steward.
Rules of The inquiry as to the relation between the holding and
an*!-^"' *-^^ population on it is, of course, of the utmost importance
for a general estimate of the arrangement. From a formal
point of view the question is soon solved : on the one hand,
the holding of the villain remains undivided and entire ; it
does not admit of partition by sale or descent ; on the
other, the will of the lord may alter, if necessary, the
natural course of inheritance and possession ; the socage
tenure is often free from the first of these limitations, and
always free from the second. The indivisibility of villain
tenements is chiefly conspicuous in the law of inheritance :
all the land went to one of the sons if there were several ;
very often the youngest inherited ; and this custom, to
which mere chance has given the name of Borough Eng
lish, was considered as one of the proofs of villainage ^.
It is certainly a custom of great importance, and probably
it depended on the fact that the elder brothers left the
land at the earliest opportunity, and during their father's
life. Where did they go? It is easy to guess that they
sought work out of the manor, as craftsmen or labourers ;
' St. Alban's Formulary, Cambridge Univ., E. e. iv. 20; f 165, a; 'Item
dicunt quod quando predictus Robertus fuerit mortuus quod dominus habebit
melius animal Suum pro herieto et carettam suam ferro ligatam, omnes puUos
suos, omnes porculos suos, omnes pannos suos laneos, omnia vasa sua
argentea, aenea et ferrea. Et quod filius suus postnatus habebit terram quam
pater suus tenuit et dabit pro ingressu habendo tantum quantum unus alius
extraneus et faciet eadem seruUia (sicj que et pater suus fecit.' Ramsey
Cart. , i. 372 : ' Erit dicta terra post mortem patris vel matris gersummata
filio juniori vel propinquiori de sanguine secundum consuetudinem viUe.'

^"^- ^'^ M^txtAnu, 247
that they served the lord as servants, ploughmen, and the
like; that they were provided with holdings, which for
some reason did not descend to male heirs ; that they were
endowed with some demesne land, or fitted out to reclaim
land from the waste. We may find for all these suppo
sitions some supporting quotation in the records. And
still it would be hard to believe that the entire increase of
population found an exit by these by-paths. If no exit
was found, the brothers had to remain on their father's
plot and the fact that they did so can be proved, if it
needs proof, from documents ^. The unity of the holding
was not disturbed in the case ; there was no division, and
only the right heir, the loTtoTrd/ncoi; as they said in Sparta,
had to answer for the services ; the lord looked to him and
no further; but in point of fact the holding contained
more than one family, and perhaps more than one house
hold. However this may be, in regard to the lord the
holding remained one and undivided. This circumstance
draws a sharp hne between the feudal arrangement of
most counties and that which prevailed in Kent. The
gavelkind or tributary tenure there was subjected to equal
partition among the heirs.
Let us take a Kentish .survey, the Black Book of St. Kentish
Augustine's, Canterbury, for instance : it describes the ^^^ ^™"
peasant holdings in a way wTiich differs entirely from other
surveys. It begins by stating what duties lie on each
sulung, that is, on the Kentish ploughland correspond
ing to the hide of feudal England. No regular sub-
' Duchy of Lancaster, B'» 62, N. 750, m. 2 : ' Siwardus cepit unam hidam
cum dimidia ¦virgata terre et illam tenuit usque ad obitum uxoris sue ; postea
venit idem Siwardus et rogauit Hugonem fratrem suum ut auderet remanere
in terra patris sui prenominati, quia fuit sine terra. Et idem Hugo sibi con
cessit, saluo iure suo. Item Siwardus cepit uxorem . . . de qua habuit
Robertum, Radulfum et Gunnildam. Post obitum dicti Siwardi venit Rogerus
qui fuit filius Hugonis et exigebat terram prenorainatam et per considera-
cionem curie fuit seisitus in predicta terra, set quia uxor dicti Siwardi pauper
fuit, consideratum sibi fuit ut haberet iv acras de predicta terra, quantum sibi
custodiret. Postea maritata fuit et revertebant predicte acre terre dicto
Rogero ut de jure suo pertinentes ad dictam virgatam terre.' Cf Q. R.
Misc. 902/77.

248 Open Skib §^0ttm Anb ^oibxn^0, [Essay il
divisions corresponding to the virgates and bovates are
mentioned, and the reckoning starts not from separate
tenements, but from their combination into sulungs^
Then follow descriptions of the single sulungs, and it turns
out that every one of them consists of a very great number
of component parts, because the progeny of the original
holders has clustered on them, and parcelled them up in
very complicated combinations ^. The portions are some
times so small, that an independent cultivation of them
would have been quite impossible. In order to understand
the description it must be borne in mind that the fact
of the tenement being owned by several different persons
in definite but undivided shares did not preclude farming
in common ; while on the other hand, in judging of the
usual feudal arrangement of holdings we must remember
that the artificial unity and indivisibility of the tenement
may be a mere screen behind which there exists a complex
mass of rights sanctioned by morality and custom though
not by law. The surveys of the Kentish possessions of
Battle Abbey are drawn up on the same principle as
those of St. Augustine's; the only difference is, that the
individual portions are collected not in sulungs, but in
yokes {juga) ^-
' Black Book of St. Augustine's, Cotton MSS., Faustina, A. i. 15, a : ' In
Taneto sunt 45 suUung 150 acre reddentes gablum denariorum. In festo S"
Martini videlicet de unoquoque suUung reddunt de Gabulo 2 solidos 2 denarios,
summa quorum facit 25 libras 105 solidos 10 denarios obolum. Ipsi qui
tanent predictos suUung reddunt in equinoctio autumpnae de unoquoque
suUung pro horsarer 16 den. et de 150 acris 12 den. Ipsi idem arant pro
anererthe in purificacione de unoquoque suUung unam acram et 150 acris
3 virgatas. Ipsi idem reddunt in festo S" Johannis de unoquoque suUung
2 agnos separabiles et de 150 acris 1 agnum et valenciam dimidii agni. Ipsi
idem reddunt in natali de unoquoque suUung unum ferendel ordei,' etc.
' Ibid. 60 ; SuoUnga de Ores ; ' Heredes Salomonis de Ores tenent 8 acras
. . . Heredes WiUelmi de Ores tenent 12 acras . . . Jacobus tenet 3 acras et
dimidiam perchatam . . . Thomas filius G. de Hores tenet 2 acras . . . Ricardus
et Salomon filius Augustini . . . et 'WiUelmus filius Ricardi tenent 2 acras et
dimidiam,' etc.
" Augment. Off. Misc. Books, N. 57, f 96, a: 'Johannes Bairot heredes
Hamoni Daniel, heredes Johannis hugheleyn, heredes Roberti atte mede,
heredes 'Walteri et "WUlelmi Ram et GUbertus le Rome tenent unum jugum
et dimidium de Cukulycumbe.'

Chap. i.] ^AvdUnb jfn^eH^ance. 249
And so we have in England two systems of dividing the
land of the peasant, of regulating its descent and its duties.
In one case the tenant-right is connected with rigid hold
ings descending to a single heir ; in another the tenements
get broken up, and the heirs club together in order to
meet the demands of the manorial administration. The
contrast is sharp and curious enough. How is one to ex
plain, that in conditions which were more or less identical,
the land was sometimes partitioned and sometimes kept
together, the people were dispersed in some instances and
kept together in others ?
Closer inspection will show that however sharp the oppo- Connecting
sition in law may have been, in point of husbandry and ^°^l^ ^^^
actual management the contrast was not so uncompro- two sys-
mising. Connecting links may be found between the two.
The Domesday of St Paul's, for instance, is compiled in
the main in the usual way, but one section of it — the
description of the Essex manors of Kirby, Horlock, and
Thorpe — does not differ from the Kentish surveys in
anything but the terminology ^- The services are laid on
hides, and not on the actual tenements. Each hide in
cludes a great number of plots which do not fall in with
any constant subdivisions of the same kind as the virgates
and bovates. Some of these plots are very small, all are
irregular in their formation. It happens that one and the
same person holds in several hides. In one word, the
Kentish system has found a way for some unexplained
reason into the possessions of St. Paul's, and we find sub
jected to it some Essex manors which do not differ much
in their husbandry arrangements from other properties
in Essex, and have no claim to the special privileges of
Kentish soil.
Once apprised of the possible existence of such inter
mediate forms, we shall find in most surveys facts tending to
connect the two arrangements. The Gloucester Cartulary,
for instance, mentions virgates held by four persons^. The
' Domesday of St. Paul's, 38 sqq. Comp. Ramsey Cart., i. 413.
^ Gloucester Cart., iii. 213 : ' Robertus Altegreue, 'WUlelmus Godere, Jo-

2 so Open S^f^ §Tf0iim Anb j^o^t^S*^- f^^^^"" "•
plots of these four owners are evidently brought together
into a virgate for the purpose of assessing the services.
Two peasants on the same virgate are found constantly.
It happens that one gets the greater part of the land and
is called the heir, while his fellow appears as a small
cotter who has to co-operate in the work performed by
the virgate ^. Indications are not wanting that sometimes
virgates crumbled up into cotlands, bordlands, and crofts.
The denomination of some peasants in Northumberland
is characteristic enough — they are 'selfoders,' obviously
dwelling ' self-other ' on their tenements ^. On the other
hand, it is to be noticed that the gavelkind rule of succes
sion, although enacting the partibility of the inheritance,
still reserves the hearth to the youngest born, a trace of
the same junior right which led to Borough English.
United and I think that upon the whole we must say that in prac-
iold'ings ^'"-^ ^^^ very marked contrast between the general arrange
ment of the holdings and the Kentish one is more a
difference in the way of reckoning than in actual occupa
tion, in legal forms than in economical substance. The
general arrangement admitted a certain subdivision under
the cover of an artificial unity which found its expression
in the settlement of the services and of the relations with
the lord ^. The English case has its parallel on the Conti
nent in this respect. In Alsace, for instance, the holding
hannes Abraham, IsabeUa relicta Lucae tenent unam ¦virgatam, scUicet quiUbet
eorum unum quarterium et faciunt conjunctim in omnibus sicut unus irir-
gatarius.' Comp. 59, 201. Hereford Court Rolls (Bodleian), 3, b: 'T. Hake,
Ricardus de PoluchuUe et Muriel filius Galfridi pyoner tenent unam dimi
diam virgatam terre consuetudinarie.'
^ Bury St. Edmund's Cart., Cambridge University, G. g. iv. 4. f 35, a :
' Johannes Knop tenet cotagium et contribuit heredi qui tenet maiorem partem
tenementorum.' '¦^ Inqu. post mort. 55 Henry III, N. 33 : ' Redditarii qui vocantur self
oders.' ' Euch. Q. R. Anc. Misc. Court Rolls, xxi. 513/82 : ' Dicunt quod aliquis
habens virgatam terre et vendiderit omnes partes excepto capitati domo et
loco focarii, tenentes locum focarii erunt sectatores curie et alteri non.
SimUiter de tenentibus dimidiam virgatam et codsetlestoftes : semper tenentes
locum focarii coUigent firmam et erunt liberi de pannagio et de aliis tallagiis
et alteri tenentes partes erunt geldabUes.' (Curia de Brigstock tenta die
veneris proxima ante festum Sancti Andree ApostoU anno [r. r. Edw. xxvi]).

Chap.L] ^Attim JI^O2bxnQ0, 25 1
was united under one ' Trager ' or bearer of the manorial
duties ; but by the side of him other people are found who
participate with this official holder in the ownership and in
the cultivation ^. The second system also kept up the
artificial existence of the higher units, and obvious interests
prevented it from leading to a ' morcellement ' of land into
very small portions in practice. The economic management
of land could not go as far as the legal partition. In prac
tice the subdivision was certainly checked, as in the virgate
system, by the necessity of keeping together the cattle
necessary for the tillage. Virgates and bovates would
arise of themselves : it was not advantageous to split the
yoke of two oxen, the smallest possible plough ; and
co-heirs had to think even more when they inherited
one ox with its ox-gang of land. The animal could
not be divided, and this certainly must have stopped
in many cases the division of land. When the docu
ments speak of plots containing two or three acres, it
must be remembered that such crofts and cotlands occur
also in the usual system, and I do not see any reason to
suppose that the existence of such subdivided rights always
indicated a real dispersion of the economic unit : they may
have stood as a landmark of the relative rights of joint
occupiers. I do not mean to say, of course, that there
was no real basis for the very great difference which is
assumed by the two ways of describing the tenements.
No doubt the hand of the lord lay heavier on the Essex
people than on the Kentish men, their occupation and
usage of the land was more under the control of the lord,
and assumed therefore an aspect of greater regularity and
order. Again, the legal privileges of the Kentish people
opened the way towards a greater development of indivi
dual freedom and a certain looseness of social relations.
Still it would be wrong to infer too much from this formal
opposition. In both cases the centripetal and the centri
fugal tendency are working against each other in the same
1 See Hanauer, Les paysans de 1' Alsace au Moyen Age.

252 Open :§kib 0^0tem Anb ^oSbinc^0, fessAvn.
way, although one case presents the stronger influence of
disruptive forces, and the other gives predominance to the
collective power. In the history of socage and mihtary
tenure the system of unity arose gradually, and without
any sudden break, out of the system of division. The
intimate connexion between both forms is even more
natural in peasant ownership, which had to operate with
small plots and small agricultural capital, and therefore
inclined naturally towards the artificial combination of
divided interests. In any case there is no room in prac
tice for the rigid and consequent operation of either rule
of ownership, and, if so, there is no actual basis for the
inference that the unification of the holding is to be taken
as a direct consequence of a servile origin of the tenement
and a sure proof of it. Unification appears on closer in
spection as a result of economic considerations as well as
of legal disabilities, and for this reason the tendency ope
rated in the sphere of free property as well as among the
villains ; among these last it could not preclude the work
ing of the disruptive elements, but in many cases only hid
them from sight by its artificial screen of rigid holdings.
The hold- \y^e have seen that the size and distribution of the hold
ing and . ,.,,,/¦ r '
the team, ings are connected with the number of oxen necessary for
the tillage, and its relation to the full plough. The hide
appears as the ploughland with eight oxen, the virgate
corresponds to one yoke of oxen, and the bovate to the
single head. It need not be added that such figures
are not absolutely settled, and are to be accepted as ap
proximate terms. The great heavy plough drawn by
eight or ten oxen is certainly often mentioned in the
records, especially on demesne land ^. The dependent
people, when they have to help in the cultivation of the
demesne, club together in order to make up full plough
teams ^- It is also obvious that the peasantry had to asso-
• Domesday of St. Paul's, xv. 7 ; Gloucester Cartulaiy, iu. 55, 61 ; Car
tulary of Christ Church, Canterbury, Add. MSS. 6759, f. 21, b.
2 Battle Cart. Augra. Off. Books, N. 18, f 7, a : ' Aratra uertuntur in terram
domini.' Ely Inqu., Claudius, C. xi. 38 b, 86 b, etc.

Chap. I] ^U (pfOtt^^ ^eaitt. 253
ciate for the tilling of their own land, as it was very rare
for the single shareholder to possess a sufficient number
of beasts to work by himself But it must be noticed that
alongside of the unwieldy eight-oxen plough we find much
lighter ones. Even on the demesne we may find them
drawn by six oxen. And as for the peasantry, they seem
to have very often contented themselves with forming a
plough team of four heads ^. It is commonly supposed
by the surveys that the holder of a yardland joins with
one of his fellows to make up the team. This would mean
on the scale of the hide of 1 30 acres that the team consists
of four beasts ^. It happens even that a full plough is
supposed to belong to two or three peasants, of which
every one is possessed only offive acres ; in such cases there
can be no talk of a big plough ; it is difficult to admit even
a four-oxen team, and probably those people only worked
with one yoke or pair of beasts ^. Altogether it would be
very wrong to assume in practice a strict correspondence
between the size of the holding and the parts of an eight-
oxen plough. The observation that the usual reckoning
of the hide and of its subdivisions, according to the pattern
of the big team, cannot be made to fit exactly with the
real arrangement of the teams owned by the peasantry —
this firmly established observation leads us once more to
the conclusion that the system of equal holdings had
become very artificial in process of time and was deter
mined rather by the relation between the peasants and
the manorial administration than by the actual conditions
of peasant life. Unhappily the artificial features of the
' Ely Inqu., 72 b ; comp. 24, b ; Gloucester Cart., ui. 183.
° Eynsham Reg., 6, b : ' Robertus Tony tenet de domino unam virgatam
terre in bondagium . . . Idem semel arabit cum vicino adiuncto.' Ramsey
Cart., i. 56. Comp. Q. R. Min. Ace, B'« 513, N. 97 : ' Estimatur quod com
muniter tres custumarii possunt facere unam carucam (tenent 20 acras).'
^ Rot. Hundr., ii. 461, b : ' Robertus de Tony habet in vUlenagio scil. Regi-
naldum Toni qui tenet 5 acras . . . Item si ipse habeat cum uno vel cum duobus
sociis unam carucam, arabit unam selionem terre domini.' Comp. 462, a.
Add. MSS. 6159, f 22, b : ' 'W. J. tenet de domino in viUenagio unum mesu
agium et 10 acras terre. . . . Et arabit cum caruca sua sive jungat sive non
4 acras.'

2 54 ©i^en §kib §^0tim Anb ^oibinc^0, [Essayh.
system have been made by modern inquirers the starting-
point of very far-reaching theories and suppositions. See
bohm has proposed an explanation of the intermixture of
strips as originating in the practice of coaration. He
argues that it was natural to divide the land tilled by a
mixed plough-team among the owners of the several beasts
and implements. Every man got a strip according to a
certain settled and ever-recurring succession. I do not
pretend to judge of the value of the interesting instances
adduced by Seebohm from Celtic practices, but whatever
the arrangement in Wales or Ireland may have been, the
explanation does not suit the English case. A doubt is
cast on it already by the fact that such a universal
feature as the intermixture of strips appears connected
with the occurrence of such a special instrument as the
eight-oxen plough. The intermixture is quite the same in
Central Russia, where they till with one horse, and in Eng
land where more or less big ploughs were used. The doubt
increases when we reflect that if the strips followed each
other as parts of the plough-team, the great owners would
have been possessed of compact plots. Every holder of an
entire hide would have been out of the intermixture, and
every virgater would have stood in conjunction with a
sequence of three other tenants. Neither the one nor the
other inference is supported by the facts. The observa
tion that the peasantry are commonly provided with small
ploughs drawn by four beasts ruins Seebohm's hypothesis
entirely. One would have to suppose that most fields
were divided into two parts, as the majority of the tene-
.ments are yardlands with half a team. The only adequate
explanation of the open-field intermixture has been given
above ; it has its roots in the wish to equalise the holdings
as to the quantity and quality of the land assigned to them
in spite of all differences in the shape, the position, and
the value of the soil.
Terms of Before I leave the question as to the holdings of the
occurence, feudal peasantry, I must mention some terms which occur
in different parts of England, although more rarely than

Chap, l] ^)cU}ptknAi ^etrnt0. 255
the usual hides and virgates ^. Of the sulung 1 have
spoken already. It is a full ploughland, and 300 acres are
commonly reckoned to belong to it. The name is some
times found out of Kent, in Essex for instance. , In Tilling-
ham, a manor of St. Paul's of London, we come across six
hides ' trium solandarum ^.' The most probable explana
tion seems to be that the hide or unit of assessment is
contrasted with the sotanda or sulland (sulung), that is
with the actual ploughland, and two hides are reckoned as
a single solanda.
The yokes (juga) of Battle Abbey ^ are not virgates,
but carucates, full ploughlands. This follows from the
fact that a certain virgate mentioned in the record is
equivalent only to one fourth of the yoke. In the Norfolk
manors of Ely Minster we find tenmantands^ of lao acres
in the possession of several copartitioners, participes. The
survey does not go into a detailed description of tenements
and rights, and the reckoning of services starts from the
entire combination, as in the Kentish documents. A com
monly recurrent term is wista ^ ; it corresponds to the
virgate : a great wista is as much as half-a-hide, or two
virgates ®.
The terms discussed hitherto are applied to the tene
ments in the fields of the village ; but besides those there
are other names for the plots occupied by a numerous
population which did not find a place in the regular hold
ings. There were craftsmen and rural labourers working
for the lord and for the tenants ; there were people living
' Black Book of St. Augustine's, 53.
» Domesday of St. Paul's, 58.
= Augm. Off. Misc. Books, N. 57, f. 65, b. See Cartulary of Battle Abbey
(Camd. Soc), p. 133.
¦• Ely Inqu., 185, a : ' . . . tenent dimidium tenmanland, sciUcet 60 acras
terre . . . Al. et M. et eorum participes tenent unum tenmanland, scilicet 120
acras terre.' The expression may be corrupted from twnmanland, or else it
may be a mark of a beginning of cultivation in Danish times.
'" Chapter-house Books, A. 4/22, p. 21 : ' Custumarii tenent 22 virgatas
quas vocant wistas.'
« Battie Abbey Cart., Augment. Off. Misc. Books, N. 57, f. 27, a ; comp.
15, b.

256 i:)p<tn Skib §Tfl0ttm Anb %oibxn^0, [Essayh.
by gardening and the raising of vegetables. This class is
always contrasted with the tenants in the fields. The
usual name for their plots is cote, cotland, or cotsetland.
The so-called y^r^^/, or fourth part of a virgate, is usually
mentioned among them because there are no plough-
beasts on it ^. Another name for the ferdel is nook ^- Next
come the crofters, whose gardens sometimes extend to a
very fair size — as much as ten acres in one enclosed
patch ^- The cotters proper have generally one, two, and
sometimes as much as five acres with their dwellings ; they
cannot keep themselves on this, as a rule, and have to look
out for more on other people's tenements. A very common
name for their plots is ' lundinaria *,' ' Mondaylands,' be
cause the holders are bound to work for the lord only one
day in the week, usually on Monday. Although the
absence of plough-beasts, of a part in coaration, and of
shares in the common fields draws a sharp line between
these men and the regular holders, our surveys try some
times to fit their duties and plots into the arrangement of
holdings ; the cotland is assumed to represent one six
teenth or even one thirty-second part of the hide ^. The
Glastonbury Survey of 1 189 contains a curious hint that two
cottages are more valuable than one half-virgate : two cot
lands were ruined during the war, and they were thrown
together into half a virgate, although it would have been
more advantageous to keep two houses on them, that is
two households ^. The bordae mentioned by the docu
ments are simply cottages or booths without any land
belonging to them '^. The manorial police keeps a look-
• Glastonbury Inqu. (Roxburghe Ser.), 66, 90.
' 'Worcester Cart., 41, b.
= Glastonbury Inqu., 67, 70; Rot. Hundr., ii. 404, b.
' Gloucester Cart., iii. 207.
° Abingdon Cart., u. 304 : ' In dominio camerae sunt 4 hidae uno cotsettel
minus.' « Glastonbury Inqu., 41 : ' Robertus blundus tenet dimidiam virgatam •
eodem servicio. Hec terra solet esse divisa in duo cotsetlanda, set in tem
pore werre deciderunt, eo ex his duabus terris facta fuit dimidia virgata. Si
esset divisa utilius esset domino.'
¦' Domesday of St. Paul's, 19; Ramsey Cart. {RoUs Ser.), i. 309.

Chap, l] ©t0(n6tt^{on of BAnb0. 257
out that such houses may not arise without licence and
service ^.
A good many terms are not connected in any way with
the general arrangement of the holdings, but depend upon
the part played by the land in husbandry or the services
imposed upon it. To mention a few among them. A plot
which has to provide cheese is called Cheeseland^ Those
tenements which are singled out for the special duty of
carrying the proceeds of the manorial cultivation get the
name of avertands^. The terms lodland^, serland^ or
sharland, are also connected with compulsory labour.
The first is taken from the duty to carry loads or possibly to
load waggons ; the second may be employed in reference
to work performed with the sithe or reap-hoolc. A plot re
served for the leader of the plough-team, the akerman, was
naturally called akermanland^ . Sometimes, though rarely,
the holding gets its name from the money rent it has to
pay. We hear of denerates '' and nummates ^ of land in
this connexion.
All these variations in detail do not avail to modify to Conclu-
any considerable extent the chief lines on which the me- ^'°°^-
dieval system of holdings is constructed. I presume that
the foregoing exposition has been sufficient to establish
the following points : —
I. The principle upon which the original distribution de
pended was that of equalizing the shares of the members
of the community. This led to the scattering and to the
intermixture of strips. The principle did not preclude
^ Gloucester Cart., iii. 61.
= Black Book of St. Augustine's, 57. ' Ibid.
< Domesday of St. Paul's, 49. ' Gloucester Cart., ii. 109.
« Exch. Q. R. Anc. Misc., xxi. 513/82 (Curia de Brigstock, Friday after
Annunciation, 27 Edw. I); 'IUe due dimidie rode prati. ..pertinent ad
Hakerraannislond, et nemo potest habere seysinam predictarum sine breui
Domini Regis.'
' Glastonbury Inqu., 2: 'In marisco no acras terrae et quoddam Inolen-
dinum, et octo deneratas terrae secus raolendinura.'
' Madox, Exch., i. 155, n. 257 : ' Duodecim tamen nummatas quas Ordurcus
tenuit . . , usque ad 10 annos debemus tenere, singulis annis reddentes ei 12
denarios ad festum S*' Michaelis.'
VOL. I. S

258 Open Sxdb ^^0ttm Anb f^otbxnQ0>
inequality according to certain degrees, but it aimed at
putting all the people of one degree into approximately
similar conditions.
3. The growth of population, of capital, of cultivation,
of social inequalities led to a considerable difference be
tween the artificial uniformity in which the arrangement
of the holdings was kept and the actual practice of farm
ing and ownership,
3. The system was designed and kept working by the
influence of communal right, but it got its artificial shape
and its legal rigidity from the manorial administration
which used it for the purpose of distributing and collecting
labour and rent.
4. The holdings were held together as units, not merely
by the superior property of the lord, but by economic con
siderations. They were breaking up under the pressure of
population, not merely in the case of free holdings, but
also where the holdings were servile.

CHAPTER II.

RIGHTS OF COMMON.
The influence of the village community is especially Meadows.
apparent in respect of that portion of the soil which is
used for the support of cattle. The management of
meadows is very interesting because it presents a close
analogy to the treatment of the arable, and at the same
time the communal features are much more clearly brought
out by it. We may take as an instance a description in
the Eynsham Survey. The meadow in Shifford is divided
into twelve strips, and these are distributed among the
lord and the tenantry, but they are not apportioned to
any one for constant ownership. One year the lord takes
all the strips marked by uneven numbers, and the next
year he moves to those distinguished by even numbers ^.
The tenants divide the rest according to some settled
rotation. Very often lots are drawn to indicate the por-
* Eynsham Cart. 2, c : ' Est quoddam pratum nuncupatum Clayhurste et
continet de prato et pastura 35 acras dimidiam rodam 13 perticas. Est ibidem
ex parte australi una pecia prati et pasture et continet 10 acras et 7 perticas
et nuncupatur twelueacres que annuatim diuiditur in 12 parcellas per virgam
equales, unde dominus habet uno anno i, iii, v, vii, ix et xi, heredes le
Freman et Walterus le Reue eodem anno habent parcellas ii, iv, vi, viii,
X et xii. Alio anno habet dominus parcellas quas tenentes habuerunt et
tenentes parcellas domini. Et sic annuatim habet dominus quinque acras,
tres perticas et dimidiam perticam.' Cf 23, c ; ' Memorandum quod in prato
de Landemede sunt sex parceUe bundate quarum prima parcella nuncupata
Stubbefuriong continet 4 acras et dimidiam rodam et est domini anno incama-
cionis Domini imparl et tenendum anno incarnacionis Domini pari. Quando-
vero est tenQncium, diuiditur per sortem.'
S 3

26o (Bi3$^0 of Common. [Essayil
tions of the several households ^. It must be added that
the private right of the single occupiers does not extend
over the whole year : as in the case of the arable all in
closures fall after the harvest, so in regard to meadows the
separate use, and the boundaries protecting it, are upheld
only till the mowing of the grass : after the removal of the
hay the soil relapses into the condition of undivided land.
The time of the ' defence ' extends commonly to ' Lammas
day:' hence the expression 'Lammas-meadow' to desig
nate such land. It is hardly necessary to insist on the
great resemblance between all these features and the cor
responding facts in the arrangement of the arable. The
principle of division is supplied by the tendency to assign
an equal share to every holding, and the system of scat
tered strips follows as a necessary consequence of the prin
ciple. The existence of the community as a higher organ
ising unit is shewn in the recurrence of common use after
the ' defence,' and in the fact that the lord is subjected to
the common rotation, although* he is allowed a privileged
position in regard to it. The connexion in which the
whole of these rights arises is made especially clear by the
shifting ownership of the strips : private right appears on
communal ground, but it is reduced to a minimum as it
were, has not settled down to constant occupation, and
assumes its definite shape under the influence of the idea
of equal apportionment. Of course, by the side of these
communal meadows we frequently find others that were
owned in severalty.
Allotment Land for pasture also occurs in private hands and in
severalty, but such cases are much rarer ^ Sometimes

of pasture.

' A very good instance is supplied by 'WiUiams, Rights of Common, 89,
90. Ct Birkbeck, Sketch of the Distribution of Land in England, 19.
=> Gloucester Cart. iii. 67 (Extenta de Berthona Regis) : ' De pastura sepa-
rabili dicunt quod Rex habet quandam moram quae continet 4J acras et valet
4 solidos et potest sustinere 12 boves per nouem menses. Item de pastura
inseparabUi dicunt quod Abbas Gloucestriae debet invenire pasturam ad 18
boves domini Regis, et ad 2 vaccas, et 2 afros, a vigilia Pentecostes quousque
prata sint falcata, levata et cariata.' Exch. Q. R. Treas. of Rec. If; 'item
dicunt quod sunt ibi de pastura separabili 50 acrae et valet acra 3d.'

Chap. II.] ^A0tViVt, 26 1
the pasture gets separated and put under ' defence ' for one
part of the year, and merges into communal ownership
afterwards \ But in the vast majority of cases the pasture
is used in common, and none of the tenants has a right to
fence it in or to appropriate it for his own exclusive benefit.
It ought to be noted, that the right to send one's cattle to
the pasture on the waste, the moors, or in the woods of a
manor appears regularly and intimately connected with
the right to depasture one's cattle on the open fields of the
village 2. Both form only different modes of using com
munal soil. As in the case of arable and meadow the
undivided use cannot be maintained and gets replaced by
a system of equalised shares or holdings, so in the case of
pasture the faculty of sending out any number of beasts
retires before the equalisation of shares according to cer
tain modes of ' stinting ' the common. We find as an im
portant manorial arrangement the custom to ' apportion '
the rights of common to the tenements, that is to decide
in the manorial Court, mostly according to verdicts of
juries, how many head of cattle, and of what particular
kind, may be sent to the divers pasture-grounds of the
village by the several holdings. From time to time these
regulations are revised. One of the Glastonbury Surveys
contains, for instance, the following description from the
'¦ Eynsham Cart. 3, b : ' Dicunt eciam quod omnia prata pasture domini et
omnes culture non seminate et [que] deberent seminari sunt separalia per
tempus predictum.' 10, b : ' Et sunt dicte pasture separales quousque blada
circumcrescentia asportentur.' A curious case is the following ; ibid., 3, b :
' Dicunt eciam quod dominus tenetur pratum suum de Langenhurst custodire
nee potest attachiare malefactores in eodem a soils ortu usque ad occasum,
aliis temporibus . . . licet, et est separale a festo annunciacionis beate Marie
usque gulam Augusti.'
' Domesday of St. Paul's, 69 : ' Non est ibi certa pastura nisi quando
terre dominice quiescunt alternatim inculte.' Cf 59 : ' Non est ibi pastura
nisi cum quiescit dominicum per wainnagiura . . . possunt ibi esse 4 sues
cum uno verre et suis fetibus et 4 vacce cum suis fetibus si quiescunt pasture
dominice alternatim.' Rot. Hundr. ii. 768, b : ' Item porci eius et aliorum
vicinorum suorum pascent in campis dominicis extra tassum dum bladum
domini stat in campis, et post bladum domini cariatum ibunt in campis per
totum et omnes alie bestie ejus et aliorum vicinorum suorum pascent per
totum in stipule domini sine imparcamento. '

262 ^x^U^ of Common. [Essayii.
45th year of Henry III. Each hide may send to the
common eighteen oxen, sixteen cows, one bull, the off
spring of the cows of two years, two hundred sheep with
four rams, as well as their offspring of one year, four horses
and their offspring of one year, twenty swine and their
offspring of one year \ According to a common rule the
only cattle allowed to use the village pasture was that
which was constantly kept in the village, levant e couchant
en le maner. In order to guard against the fraudulent
practice of bringing over strange cattle and thus making
money at the expense of the township, it was required
sometimes that the commonable cattle should have win
tered in the manor ^-
Pasture an These last rules seem at first sight difficult of explana-
adjunctto ^Jqj^ . Qjjg jQgg jjQ^ ggg jjj ^\^2.\. way the bringing in of
tioluing. Strange cattle could damage the peasantry of the village, as
nobody could drive more than a certain number of beasts
to the common, and as the overburdening of it depended
entirely on the excess of this number, and not on the
origin of the beasts. And so one has to look to some
thing else besides the apprehension that the common
would get overburdened, in order to find a suitable ex
planation of the rule. An explanation is readily supplied
by the notion that the use of the common was closely
connected with the holding. Strange cattle had nothing
to do with the holding, and were to be kept off from the

' Glastonbury Cart., Wood MSS. i (Bodleian), f 182, b. Cf f 239, 240:
' Memorandum anni 1243 de amensuratione pasture . . . dicunt precise quod
ad quamlibet hidatam terre in eadem villa pertinent 16 bones ad terram
excolendam, 4 vacce, 4 averia, 50 bidentes et 6 porci ... ad unam virgatam
terre pertinent 4 boues, et 2 vacce, et i auerium, et 3 porci et 12 bidentes ad
tantam terram colendara et sustinendam.' Leigerbook of Kirkham Priory,
Yorkshire, Fairfax MSS. 7, f 8 a : ' Amensuratio pasture de Sexendale facta
anno regni regis Henrici filii regis lohannis 36'° . . . qui dicunt per sacramen
tum suum quod quelibet bouata terre in Sexendale potest sustinere duo grossa
animalia, 30 ones cum sequela unius anni, duos porcos sine sequela et 3 aucas
cum sequela dimidii anni, et non amplius.'
^ In a case of 1233 (Note-book of Bracton, 749) it is complained, — ' Cum
idem Robertus non possit aliena aueria in pasturam illam recoUigere, scU.
hominum alterius religionis,' etc.

Chap. IL] Communftf ^A0tVI.Vt, 263
land of the community ; it is as representatives of a
community whose territory has been invaded that the
individual commoners have cause to complain. In fact
the common pasture, as well as the meadows, were
thought of merely as a portion of the holding. The
arrangements did not admit of the same certainty or
rather of the same kind of determination as the division
of the arable, but the main idea which regulated the
latter was by no means cut short in its operation, if one
may say so : it was not bound up with the exact measure
ment of arable acres. The holding was the necessary
agricultural outfit of a peasant family, and of this outfit
the means of feeding the cattle were quite as important
a part as the means of raising crops. It is only inac
curately that we have been speaking of a virgate of 30
acres, and of a ploughland of 180 or 160. The true ex
pression would be to speak of a virgate of 30 acres of
arable and the corresponding rights to pasture and other
common uses. And the records, when they want to give
something like a full description, do not omit to mention
the ' pertinencia,' the necessary adjuncts of the arable.
The term is rather a vague one, quite in keeping with the
rights which, though tangible enough, cannot be cut to so
certain a pattern as in the case of arable \ And for this
reason the laxer right had to conform to the stricter one,
and came to be considered as appendant to it.
We have considered till now the different aspects as- Common
sumed by common of pasture, when it arises within the j-ag^js^*^'*
manor, and as a consequence of the arrangement of its
holdings. But this is not the only way in which common
of pasture may arise. It may originate in an express
and special grant by the lord either to a tenant or to a
' Note-book of Bracton, pi. 174 : ' Dicunt eciam quod in manerio de BilUngi-
heie, sicut inquirere possunt, sunt 12 carucate terre tam in certa terra quam
in marisco predicto, scilicet sex carucate de certa terra et sex carucate in
marisco, et in Northkime sunt sex carucate terre et quatuor bouate tara in
certa terra quam in marisco predicto, set nesciunt ahquam distinctionem
quantum sit in certa terra et quantum in marisco nee aliquid inquirere potu
erunt de metis infra mariscos iUos.'

264 (B^qU^ of Common. l^ssay n.
stranger ^ ; it may also proceed from continuous use from
time beyond legal memory^ : it must have been difficult
in many cases to prevent strangers from establishing such
a claim by reason of long occupation in some part of a
widely stretching moor or wood pasture ^. It was not less
difficult in such cases to draw exact boundaries between
adjoining communities, and we find that large tracts of
country are used as a common pasture-ground by two
villages, and even by more *- Neighbours deem it often
advantageous to establish a certain reciprocity in this
respect *. By special agreement or by tacit allowance

' Note-book of Bracton, pi. 749 : ' Robertus de Spraxtona summonitus fuit ad
warantizandum Abbati de Riuallibus 42 acras terre et pasturam ad 30 uaccas
cum uno tauro et 48 boues et 40 ones cum pertinenciis in Sproxtona que tenet
et de eo tenere clamat, et unde cartam Simonis de S. auunculi sui cuius heres
ipse est habet,' etc.
^ Note-book of Bracton, pi. 818 i ' Et Saherus et Matillis per attornatos suos
ueniunt et dicunt quod seraper, a conquestu Anglie usque nunc comraunica-
uerunt cum eodem Roberto et antecessoribus suis in Locke, et idem Robertus
et antecessores semper communicauerunt in terris ipsorum S. et M. in Gahara
. . . et unde dicunt quod si idem Robertus uelit se retrahere de communa
quam habet in terris ipsorum, ipsi nolunt se retrahere et dicunt quod semper
communicauerunt horn underhorn . . . Et Robertus uenit et dicit quod nee
ipse nee antecessores unquam communam habuerunt in Locke nisi post
gwerram et per vim etc. scil. post gwerram motam inter regem S. et
homines suos.' Spelman renders the horn unherhorn by ' horn with horn,'
but the editor of Bracton's Note-book thinks, and 1 beUeve rightly, that the
phrase means a common for all manner of horned beasts. Brunner has trans
lated it by ' gemeinschafiilich — durcheinander.'
' Rot. Hundr. ii. 605, e ; ' In dicto manerio I magnus boscus qui continet
300 acras in quo quidem bosco homines propinquarum villarum ut 'Wardeboys,
'Wodehirst, Woldhirst, S" Ivonis, Niddingworth et Halliwell communicant
omnes bestias suos pascendo cum sokna de Sumersham.' Note-book of
Bracton, 1194 : 'Iuratores dicunt quod mora ilia ampla est et magna et
nesciunt aliquas divisas quantum pertinet ad unam uUlam, quantum ad aliam.'
In the case of forest land many villages enjoyed and still enjoy rights of
intercommoning over a wide space. The case of Epping is the famUiar
exaraple. * Eynsham Cart. 3, b ; ' Dicunt eciam quod dominus et viUata de Shyfford
intercoramunicant cum villatis de Stanlake, Brytlamptone et Herdewyk a
gula Augusti usque festum S" Martini, cum villatis vero de Astone Cote
et Elcforde a festo S" Michaelis usque dictum festum S" Martini.'
' Note-book of Bracton, pi. 914 : ' Et Thomas venit et dicit quod iiuUam
communam clamat in Oure, set uerum uult dicere. Certe diuise et mete
continentur inter terram Prioris de Oure et terram ipsius Thome de Merk-

Chap. IL] tiA00xficAtkn of Commott (Big^f0. 265
lords and tenants intercommon on each other's lands : this
practice extends mostly to the waste only, but in some
cases the arable and meadow are included after the re
moval of the crop and of the hay. The procedure of the
writ ' quo jure ' was partly directed to regulate these rights
and to prevent people from encroaching wantonly upon
their neighbours ^. When land held in one fee or one
manor was broken up for some reason into smaller units,
the rights of pasture were commonly kept up according
to the old arrangements ^.
These different modes of treating the pasture present
rather an incongruous medley, and may be classified in
several ways and deduced from divers sources.
The chief distinctions of modern law are well known : Modem
' Common Appendant is the right which every freehold tjon^of"^'
tenant of the manor possesses, to depasture his commonable commons.
cattle, levant and couchant on his freehold tenement an
ciently arable, on the wastes of the manor, and originally on
all (common) pasture in the manor. Common appurtenant
on the other hand is against common right, becoming ap
purtenant to land either by long user or by grant express
or implied. Thus it covers a right to common with animals
that are not commonable, such as pigs, donkeys, goats, and
geese ; or a right to common claimed for land not anciently
wrthe et quamdiu placuit eidem Priori habere aesiam in terra ipsius Thome
in Markwrthe habuit ipse Thomas aesiam in terra ipsius Prioris de Oure, et
si Prior uult subtrahere se, ipse libenter subtrahet se.'
' The relation between this writ and the action ' quod reddat ei tantam
pasturam ' is weU illustrated by a case of 1 230 (Note-book of Bracton, pi. 392) :
' Ricardus de 'Willeye et lohanna de WiUeye summoniti fuerunt ad respon-
dendura 'WiUelmo de KamuiUa quo iure communam pasture exigunt in terra
ipsius W. in Arewe, desicut idem 'WiUelmus nullam communara habet in
terris ipsorum Ricardi et lohanne, nee ipsi Ricardus et Johanna seruicium
faciunt quare communam habere debeant," etc. . . . ' Et quia 'Willelmus
cognoscit quod habet communam quantamcumque licet paruam, consideratum
est quod nichil capiat per breue istud et sit in misericordia pro falso claraore et
perquirat sibi per aliud breue sicut per breue quod reddat ei tantam pasturam,'
etc. One may say that the Quo Jure was an ' actio negatoria.'
" Note-book of Bracton, pi. 561 ; ' Et quia Simon non potest dedicere quin
terra iUa ubi communa est sit de i feodo et una uiUa, consideratum est quod
ipsa communicet cum eodem Simone in terra ipsius Simonis,' etc.

266 (J^x^U^ of Common. [essay ir.
arable, such as pasture, or land reclaimed from the waste
within the time of legal memory, or for land that is not
freehold, but copyhold ^.' Common in gross is a personal
right to common pasture in opposition to the praedial
rights. Mr. Scrutton has shown from the Year Books
that these terms and distinctions emerge gradually during
the fourteenth century, and appear substantially settled
only in Littleton's treatise. Bracton and his followers, •
Fleta and Britton, do not know them. These are important
facts, but they hardly warrant the inferences which have
been drawn from them. The subject has been in dispute
in connexion with discussions as to the free village com
munity. Joshua Williams, in his Rights of Common ^, had
assumed common appendant to originate in ancient cus
tomary right bestowed by the village community and not
by the lord's grant ; Scrutton argues that such a right is
not recognised by the documents. He lays stress on the
fact, that Bracton speaks only of two modes of acquiring
common, namely, express grant by the lord, and long usage
understood as constant sufferance on the part of the lord
amounting to an express grant. But this is only another
way of saying that Bracton's exposition is based on feudal
notions, that his land law is constructed on the principle
' nulle terre sans seigneur,' and that every tenement as
well as every right to common, is considered in theory as
granted by the lord of the manor. It may be admitted
that Bracton does not recognise just that kind of title which
later lawyers knew as appendancy, does not recognise that
a man can claim common by showing merely that he is a
freeholder of the manor. Unless he, relies on long con
tinued user, he must rely upon grant or feoffment. But the
distinction between saying ' I claim common because I am
a freeholder of the manor ' and saying ' I claim common
because I or my ancestors have been enfeoffed of a free
hold tenement of the manor and the right of common
passed by the feoffment' though it may be of juristic
* Scrutton, Commons and Common Fields, 42.
' Page 37.

Chap. IL] H^vx^xn of Common (^i^U^. 267
interest and even of some practical importance as regulating
the burden of proof and giving rise to canons for the in
terpretation of deeds, is still a superficial distinction which
does not penetrate deeply into the substance of the law.
On the whole we find that the freeholder of Bracton's time
and of earlier times does normally enjoy these rights which
in after time were described as ' appendant ' to his freehold ;
and it is well worth while to ask whether behind the
general assumptions of feudal theory there do not lie
certain data which, on the one hand, prepare and explain
later terminology, and are connected, on the other, with
the historical antecedents of the feudal system.
A little reflection will show that the divisions of later
law did not spring into being merely as results of legal
reasoning and casuistry. Indeed, from a lawyer's point of
view, nothing can be more imperfect than a classification
which starts from three or four principles of division seem
ingly not connected with each other. Common appendant
belongs to a place anciently arable, common appurtenant
may belong to land of any kind ; the first is designed for
certain beasts, the second for certain others ; one is bound
up with freehold, the other may go with copyhold ; in one
case the right proceeds from common law, in the other
from ' specialty.' One may reasonably ask why a person
sending a cow to the open fields or to the waste from a
freehold tenement can claim common appendant, and his
neighbour sending a cow to the same fields from a copy
hold has only common appurtenant. Or again, why does
a plot of arable reclaimed from the waste confer common
appurtenant, and ancient arable common appendant ? Or
again, why are the goats or the swine of a tenement sent
to pasture by virtue of common appurtenant, and the cows
and horses by virtue of common appendant ? And, above
all, what have the several restrictions and definitions to
do with each other? Such a series of contrasted attri
butes defies any attempt to simplify the rules of the case
according to any clearly defined principle : it seems a
strange growth in which original and later elements, im-

268 (Bi05^0 of Common. l^^say il
portant and secondary features, are capriciously brought
together. In order to explain these phenomena we have to look to
earlier and not to later law. What seems arbitrary and
discordant in modern times, appears clear and consistent in
the original structure of the manor.
Founda- The older divisions may not be so definitely drawn and
la°er c°as- ^° developed as the later, but they have the advantage of
sification being based on fundamental differences of fact Even
law. when the names and terms do not appear well settled, the
subject-matter arranges itself according to some natural
contrasts, and it is perhaps by too exclusive study of names
and terms that Mr. Scrutton has been prevented from duly
appreciating the difference in substance. He says of the
end of the thirteenth century : ' In the reports about this
time it seems generally to be assumed that if the commoner
cannot show an especially or special grant or title, he must
show " fraunc tenement en la ville a ques commune est
appendant." Thus we have the question : — " Coment
clamez vous commune ? Com appendant, ou par especialte,'
while Hengham, J. says : ' prescription de terre est assez bon
especialte " ' (p. 50). This is really the essence of all the
rules regarding common of pasture, and, what is more, the
contrast follows directly from arrangements which did not
come into use in the fourteenth century, but were in full
work at the time of Bracton and long before it. What
is called in later law common appendant, appears as the
normal adjunct to_ the holding, that is, to a share in the
system of village husbandry. If a bovate is granted to
a person, so much of the rights of pasture as belongs to
every bovate in the village is presumed to be granted
with the arable. ' So much as belongs to every bovate in
the village ; ' this means, that the common depends in this
case on a general arrangement of the pasture in the village.
Such an arrangement exists in every place ; it is regulated
by custom and by the decisions of the manorial court or
halimote, it extends equally over the free and over the
unfree land, over the waste, the moor and wood, and over

CHAP.IL] fOvx^in of Common (^ig^^0. 269
the fallow; it admits a certain number and certain kinds
of beasts, and excludes others. Only because such a
general arrangement is supposed to exist, is the right to
common treated in so vague a manner; the documents
present, in truth, only a reference to relations which are
substantiated in the husbandry system of the manor. But
the right of common may exceed these lines in many
ways : it may be joined to a tenement which lies outside
the manorial system, or a plot freshly reclaimed from the
waste, or to a holding belonging to some other manor. It
may admit a greater number and other kinds of beasts
than those which were held commonable in the usual
course of manorial husbandry. In such cases the right to
pasture had to proceed from some special agreement or
grant, and, of course, had to be based on something
different from the ordinary reference to the existing
system of common husbandry. If there was no deed
to go by, such a right could only be established by long
use. I think that all this must follow necessarily as soon as Bracton's
the main fact is admitted, that common is normally the °'^'"°^-
right to pasture of a shareholder of the manor. The
objection may be raised, that such a priori reasoning is not
sufficient in the case, because the documents do not coun
tenance it by their classification. Would the objection be
fair ? Hardly, if one does not insist on finding in Bracton
the identical terms used in Coke upon Littleton. It is
true that Bracton speaks of common in general, and not
of common appendant, appurtenant, and in gross, but the
right of common which he treats as normal appears to be
very peculiar on a closer examination of his rules. It is
praedial and not personal ; to begin with, it is always
thought of as belonging to a tenement^. What is more,
it cannot belong to a tenement reclaimed from the
' Bracton, f 223, a : ' Non debet dici communia quod quis habuerit in
alieno . . . cum tenementum non habeat ad quod possit communia pertinere,
sed potius herbagium dici debet quam communia, cum hoc posset esse per-
sonale quid.'

2 70 (^{0^(0 of Common. [essayil
waste ^, and in this way the requirement of ' ancient arable '
is established, that is, the pasture is considered as one of
the rights conceded to the original shares of a manorial
community. The use of the open field outside the time of
reasonable defence^ is primarily meant, and the' common
pasture appears from this point of view as one ofthe stages
in the process of common farming. To make up the whole,
the right to common is, defined by a ' quantum pertinet ^,'
which has a sense only in connexion with the admeasure
ment of claims effected by the internal organisation of the
manor. Such is evidently the normal arrangement presup
posed by Bracton's description, and his only fault is, that
he does not distinguish with clearness between the conse
quences of the normal arrangement, and of grants or
usurpations which supplement and modify it. It must be
remembered that he only gives the substantive law about
common rights in the course of a discussion of the plead
ings in actions ' quo jure ' and assizes of pasture. If we
compare with Bracton's text the rules and decisions laid
down in the legal practice of the thirteenth century, we
shall find that the same facts are implied by them. They
all suppose a contrast between 'intrinsec' and 'forinsec'
claims to common, that is between the rights of those who
are members of the manorial group, and the rights, if any,
of those who are outside it, and again a contrast between
the normal rights of commoners and any more extensive

' Bracton, f. 226, b : ' Item dicere potest quod nuUa communia pertinet ad
tale tenementum, quia illud fuit aliquando foresta, boscus, et locus vastae solitu-
dinis et communia, et iara inde efficitur assartum, vel redactum est in culturam,
et non debet coraraunia pertinere ad coramuniam, et ubi omnes de patria
solebant communicare.'
^ Bracton, f 229, a ; ' Hoc non erit intelligendum quod omni tempore, nisi
tantum temporibus competentibus, scUicet post blada asportata et fena levata,
vel quando tenementum iacet incultum et ad waractum.'
^ Bracton, f 228, b : ' Item eodem modo si ita feoffatus fuerit quis, sine
expressione numeri vel generis, sed ita, cum pastura quantum pertinet ad
tantum tenementum in eadem viUa, talem ligat constitutio sicut prius cum
expressione; quia cum constet de quantitate tenementi, de facUi perpendi
poterit de numero aueriorum, et etiam de genere, secundum consuetudinem
locorum.'

CHAP.IL] (^tracf on on Common (^i00(0. 271
rights acquired by special grant or agreement. Only the
freeholders are protected in the enjoyment of their com
mons ; only the freeholders are protected in the enjoyment
of their tenements ; but their claims are based on arrange
ments in which the unfree land participates in everything
with the free. It may be added that litigation mostly arises
from the adjustment of 'forinsec' claims under the writ
' Quo jure.' The intercommoning between neighbours gives
rise to a good many disputes, and is much too frequent
to be considered, as it was by later law, a mere ' excuse for
trespassing ^.' This common ' pur cause de vicinage ' may
be a relic of a time when adjoining villages formed a part
of a higher unit of some kind, of the Mark, of a hundred, for
example. It may be explained also by the difficulty of
setting definite boundaries in wide tracts of moor and forest.
However this may be, its constant occurrence forms another
germ of a necessary contrast between the two classes which
afterwards developed into common appendant and common
appurtenant It could not be brought under the same
rules as those which flowed from the internal arrangement
of the manor. A special difficulty attended it as to
admeasurement : the customary treatment of other holdings
could not in this case serve as a standard, The very laxity
of the principle naturally gave occasion to very different
interpretations and deductions. And so we are justified in
saying, that the chief distinctions of later law are to be
found in their substance in the thirteenth century, and
that although a good deal of confusion occurs in de
tails, the earlier documents give even better clues than the
later to the reasons which- led to the well-known classifi
cation. Common appendant, if we may use the modern term for Restric-
the sake of brevity, is indissolubly connected with the 'ljj°"j^°^
system of husbandry followed by the village community, as to com-
. , . , - . . , . ., mon pas-
A very noticeable feature of it is, that, in one sense, itj^re.
towers over the lord of the manor as well as over the
tenants. Of course, legally the lord is considered as the
> Scrutton, 55.

3 72 (^tg5^0 of Common. [essayii.
owner of the waste ^, but even from the point of view of
pure law his ownership is restricted by his own grants. In
so much as he has conceded freehold tenements to certain
persons, he is bound by his own deed not to withhold from
these persons the necessary adjuncts of such tenements, and
especially the rights of pasture bound up with them. The
free tenants share with the lord, if he wants to turn his
common pasture to some special and lucrative use ; if for
instance, strangers are admitted to it for money, one part
of the proceeds goes to the tenantry ^. Again, the lord
may not overburden the common, and sometimes free
holders try their hand at litigation against the lord on the
ground that he sends his cattle to some place where they
ought not to go ^. The point cannot be overlooked, that
the lord of the manor appears subjected to certain rules set
up by custom and common decision in the meetings of his
tenantry. The number and kind of beasts which may
come to the common from his land is fixed, as well as the
number that may come from the land of a cottager "*. The
freeholders alone can enforce the rule against him, but it
is set up not by the freeholders, but by the entire community
of the manor, and practically by the serfs more than by the
freeholders, because they are so much more numerous.
Approve- As the common of pasture appears as an outcome of a
system of husbandry set up by the village community, so
every change in the use of the pasture ought in the natural

' Cartulary of Christ Church, Harl. MSS. 1066, p. 3 : ' Prior et conventus
est capitalis dominus commune pasture de B.'
^ Ely Cart., Cotton MSS. Claudius, xi, f iu, a : 'In L. debet viUata com
municare cum suis averiis propriis cura doraino Episcopo. Et si dominus
voluerit, ibidem possunt habere extranei bestias pro denariis. Set inde habe
bunt liberi homines de 'W. quemlibet septimum denarium preter decimum. '
^ Registrum cellararii of Bury St. Edmunds, Cambr. Univ., Gg. iv. 4, t 31,
b ; ' Et notandum quod inquisitio super calumpnia Egidii de Neketona
clamantis quod abbas non haberet communam infra precinctum viUate de
Bertone scribitur in forma (tali),' etc.
* Cart, of Christ Church, Canterbury, Add. MSS. 6159, f 21, b: 'Scien
dum quod dominus potest habere in communia pasture de bosco cum aisia-
raento friscorura et dominicorum domini tempore apto c bidentes per mains
centum.'

ment.

CHAP.IL] Mfpvovimtnt, 273
course to proceed from a decision of this community. Such
a change may be effected in one of two manners : the cus
tomary rotation of crops may be altered, or else a part of
the waste may be reclaimed for tillage. In the first case,
a portion of the open arable and meadow, which ought to
have been commonable at a certain time, ceases to be so ;
in the second, the right to send cattle to the waste is
stinted in so much as the arable is put under defence, or
the land is used for the construction of dwellings. By the
common law the free tenants alone could obtain a remedy
for any transgression in this respect. I have mentioned
already that suits frequently arose when the old-fashioned
rotation of crops was modified in accordance with the pro
gress of cultivation. As to the right of approving from the
waste, the relative position of lord and tenants was for
a long time debateable, and, as everybody knows, the lord
was empowered to approve by the Statute of Merton of 30
Henry III, with the condition that he should leave suffi
cient pasture to his free tenants according to the require
ments of their tenements. The same power was guaranteed
by the Statute of Westminster II against the claims of
neighbours. It has been asked whether, before the Statute
of Merton, the lord had power to enclose against com
moners, if he left sufficient common to satisfy their rights.
Bracton's text in the passage where he treats ofthe Statute
is distinctly in favour of the view that this legislative
enactment did actually alter the common law, and that
previously it was held that a lord could not approve with
out the consent of his free-tenants ^. Turning to the prac
tice of the thirteenth-century courts, we find that the
lawyers were rather doubtful as to this point. In a case of
1 32 1 the jurors declare, that although the defendant has
approved about two acres of land frora the waste where
^ Bracton, {. 228, b : ' Inprimis videndum est qualiter constitutio iUa sit
inteUigenda, ne male intellecta trahat utentes ad abusum . . . non omnes
nee in omnibus per constitutionem restringuntur, et ideo videndum erit utrum
feoffati fuerint large, scilicet per totum, et ubique, et in omnibus locis, et ad
omnia averia et sine numero . . . tales non ligat constitutio meraorata, quia
feoffamentum non toUit licet toUat abusum.'
VOL. I. T

2 74 (^105^0 of Common. [essayil
the plaintiff had common, this latter has still sufficient
pasture left to him. And thereupon the plaintiff with
draws i. In 1336 a lord who has granted pasture every
where, ' ubique,' and has inclosed part of it, succumbs in
a suit against his tenant, and we are led to suppose that
if the qualification ' ubique ' had been ab.sent, his right of
approvement would have been maintained. It must be
noticed, however, that the marginal note in Bracton's Note
book does not lay stress on the ' ubique,' and regards the
decision as contrary to the law subsequently laid down by
the Constitution of Merton ^. In a case of 1392 one of the
counsel for the defendant took it for granted that the
Statute of Merton altered the previously existing common
law^. The language of the Statutes themselves is certainly
in favour of such a construction : in the Merton Consti
tution it is stated as a fact that the English magnates were
prevented from making use of their manors*, and the
Westminster Statute is as positive as to neighbours ; ' multi
domini hucusque . . . impediti extiterunt,' etc. It seems
hardly possible to doubt that the enactments really repre
sent a new departure, although the way towards it had
been prepared by the collision of interests in open Court.
The condition negatively indicated by the documents in
regard to the time before these enactments cannot be dis
missed by the consideration that the lord would derogate
from his grant by approving. Although a single trial may
bear directly on the relation between the lord and only one
' Note-book of Bracton, 1975.
^ Note-book of Bracton, 1881. The marginal note runs : 'Nota quod nichU
includi poterit de forestis et moris licet minimum quid et quamuis quaerens
extra clausum habere possit ad sufiicientiara.' And a little higher the decision
is marked as ' contra constitutionem de Merton.'
' See Scrutton, 63, 64.
* Bracton, f 227, b ; ' Quia multi sunt magnates qui feoffauerunt milites et
libere tenentes suos in maneriis suis de paruis tenementis, et qui impediti
sunt per eosdem quod commodum suum facere non possunt de residue
maneriorum suorum.' Reference may also be made to a note on a Plea RoU
of 1221 (printed in L. Q. R. iv. 2301, which shows that some years before the
statute the magnates complained that they were prevented from assarting
their pasture land by the claims of virgaters.

CHAP.IL] ^tAtutt of (tjXnton, 275
of the tenants or a few of them, every change in the
occupation of the land touches all those who are mem
bers of the manorial community. The removal of diffi
culties as to approvement was, before the Statute of
Merton, not a question of agreement between two persons,
but a question as to the relative position of the lord and of
the whole body of the tenantry. The lord might possibly
settle with every tenant singly, but it seems much more
probable that he brought the matter, when it arose, before
the whole body with which the management of the village
husbandry rested, that is, before the halimote, with its free
and unfree tenants. In any case, the influence of the free
tenants as recognised by the common law was decisive,
and hardly to be reconciled with the usual feudal notions
as to the place occupied by the lord in the community. It
must be noted that even that order of things which came
into being in consequence of the Statute contains an
indirect testimony as to the power of the village com
munity. The Act requires the pasture left to the free
tenants to be sufficient, and it may be asked at once, what
criterion was there of such a sufficiency, if the number of
beasts was not mentioned in the instrument by which the
common was held. Of course, in case of dispute, a jury
had to give a verdict about it, but what had the jury to go
by ? It was not the actual number of heads of cattle on a
tenement that could be made the starting-point of calcula
tion. Evidently the size of the holding, and its relation to
other holdings, had to be taken into account. But if so,
then the legal admeasurement had to conform to the
customary admeasurement defined by the community ^.
And so again the openly recognised law of the kingdom
had to be set in action according to local customs, which
in themselves had no legally binding force.
Besides the land regularly used for pasture, the cattle of Rights of
the village were sent grazing along the roads ^ and in the woods, etc.
' This is directly stated by Bracton, f 228, b ; vide supra.
" Cartulary of Christ Church, Canterbury, Addit. MSS. 6159, f. 52, b :
' Pastura. . . de herbagiis cuiusdam vie inter curiam et ecclesiam de Pritel-
T 3

2 76 (Bi35^0 of Common. [Essayil
woods ^ These last were mostly used for feeding swine.
In other respects, also, the wood was subjected to a
treatment analogous to that of the pasture land. The
right of hunting was, of course, subjected to special regu
lations, which have to be discussed from the point of
view of forest law. But, apart from that right the wood
was managed by the village community according to cer
tain customary rules. Every tenant had a right to fell as
many young trees as he wanted to keep his house and his
hedges in order ^, It sometimes happens, that the lord and
the homage enter into agreement as to the bigger trees,
and for every trunk taken by the lord the tenantry are
entitled to take its equivalent ^. Whenever the right had
to be apportioned more or less strictly, the size of the
holdings was always the main consideration *-
It would be strange to my purpose to discuss the details
of common of estovers, of turbary ^, or of fishery. The
chief points which touch upon the problems of social
origins are sufficiently apparent in the subject of pasture.
The results of our investigation may, I think, be summed
up under the following heads :—
I. Rights of common are either a consequence of the
welle.' Domesday of St. Paul's, i : ' Nulla est ibi pastura nisi in boscis et
viis.' ' Rot. Hundr. 613, b : ' Et omnes libere tenentes . . . communicant in
bosco de A. cum omnibus bestiis suis libere per totura annum.'
' Eynsham Cart. 10, b : ' Est ibidem unus boscus . . . cuius valor non
appreciatur pro eo quod minister regis non permittit includi si fiat copicium,
sufficiens tamen est pro housebote et heybote.' Gloucester Cart. iii. 67:
' De boscis dicunt quod rex habet quandam costeram bosci de fago juvene
quae continet ad aestimationem 30 acras, unde rex poterit approbare per
annum dimidiam marcam, scilicet in subbosco et virgis ad clausturam, et
meremium ad Caracas et alia facienda sine destructione, et Uie boscus est
communis omnibus vicinis in herbagio.'
= Cart, of Christ Church, Canterbury, Add. MSS. 6159, f 28, b : ' Boscus
ibi est cuius medietas est ecclesie et medietatem clamant tenentes illius
denne, ut si dominus arborem unam accipiat, ipsi aliam accipient.'
* 'Worcester Cart. (Camden Ser.), 62, b: 'Quaelibet virgata tenet 3 feor-
thendels de Bruera, et dimidia virgata i feorthendel et dimidium.'
* For instance, Madox, Exch. i, 27, n. 47: ' Habebunt turbas sufiBcientes
in predicta mora ad focalium fratrum . . . secundum quantitatem terrarum
suarum in eadem villa.'

CHAP.IL] Concftt0(on0. . 277
communal husbandry of the manor, or else they proceed
from special agreement or long use.
3. The legal arrangement of commons depends on a
customary arrangement, in which free and unfree tenants
take equal part \
3. The feudal theory of the lord's grant is insufficient
to explain the different aspects assumed by rights of com
mon, and especially the opposition between lord and free
commoners. ' A very remarkable instance of the way in which rights of common were
divided and arranged between lords and villains is afforded by the Court
Rolls of Brightwaltham. Maitland, Manorial RoUs, Selden Soc. ii. 172.
I shaU have to discuss the case in the Fifth Chapter of this Essay.

CHAPTER III.

RURAL WORK AND RENTS.

Arrange- OUR best means of judging of the daily work in an
work and English village of the thirteenth century is to study the
rent. detailed accounts of operations and payments imposed on
the tenants for the benefit of a manorial lord. Surveys,
extents, or inquisitions were drawn up chiefly for the pur
pose of settling these duties, and the wealth of material
they afford enables us to form a judgment as to several in
teresting questions. It tells directly of the burden which
rural workmen had to bear in the aristocratical structure
of society ; it gives indirectly an insight into all the rami
fications of labour and production since the dues received
by the lord were a kind of natural percentage upon all
the work of the tenants ; the combination of its details
into one whole affords many a clue to the social standing
and history of the peasant classes of which we have been
treating. Let us begin by a suivey of the different kinds of
labour duties performed by the dependent holdings which
Ploughing, clustered round the manorial centre. Foremost stands
ploughing and the operations connected with it The
cultivation of the demesne soil of a manor depended
largely on the help of the peasantry. By the side of
the ploughs and plough-teams owned by the lord him
self the plough-teams of his villains are made to till his
land, and manorial extents commonly mention that the
demesne portion has to be cultivated by the help of
village customs, ' cum consuetudinibus villae^.' The duties
' Domesday of St. Paul's, 93 : ' Potest wainnagiura fieri cum 12 bobus et
quatuor stottis cum consuetudinibus ville.' 75 ; ' Item (juratores) dicunt

Opera tions :

(pfou3^{n0. 279
of every householder in this respect are reckoned up in
different ways. Sometimes every dependent plough has
its number of acres assigned to it, and the joint owners of
its team are left to settle between themselves the propor
tions in which they will have to co-operate for the per
formance of the duty \ In most cases the 'extent ' fixes
the amount due from each individual holder. For instance,
every virgater is to plough one acre in every week. This
can only mean that one acre of the lord's land is reckoned
on every single virgate in one week, without any reference
to the fact that only one part of the team is owned by the
peasant. If, for example, there were four virgaters to
share in the ownership of the plough, the expression under
our notice would mean that every team has to plough four
acres in the week ^. But the ploughs may be small, or the
virgaters exceptionally wealthy, and their compound plough
team may have to cultivate only three acres or even less.
The lord in this case reckons with labour-weeks and acres,
not with teams and days-work. A third possibility would be
to base the reckoning on the number of days which a team
or a holder has to give to the lord ^. A fourth, to lay on
the imposition in one lump by requiring a certain number
of acres to be tilled, of a certain number of days of
ploughing *. It must be added, that the peasants have
often to supplement their ploughing work by harrowing,
according to one ofthese various systems of apportionment^.

quod potest fieri wainnagiura totius dominici cum s carucis bonis habentibus
20 capita in jugo et 2 herciatoribus cum consuetudinibus operariorum.'
' Add. MSS. 6159, f- 44> ^ = ' (Leyesdon) . . . debet quelibet caruca con-
iuncta arrare unam acram et habebunt 3 denarios pro acra et quadrantem.'
^ Glastonbury Inqu. of 1189 (Roxburghe Ser.), 64: '•(Virgatarius) a festo
S" Michaelis qualibet ebdomada arat unam acram donee tota terra domini
sit culta.'
^ Ely Inqu., Cotton MSS. Claudius, c. xi. f 185 : ' Unusquisque arabit per
tres dies, si habeat sex boves ; per duos, si habeat quatuor boves ; per unum,
si habeat duos boves ; per diraidiura, si habeat unum bovem.'
* Add. MSS. 6159, f 53, a : ' Item debent predicte 22 virgate terre arrare
ad frumentum, ad auenam et ad warectum 113 acras et valent 56 solidos
6 denarios.' * Gloucester Cart. iU. 92 : ' Et quicquid araverit debet herciare tempore

2 8o (^tttraf (ps)offt anJ> (Benfe. [essayh.
The duties here described present only a variation of the
common 'week-work' ofthe peasant, its application to
a certain kind of labour. They could on occasion be re
placed by some other work ^, or the lord might lose them if
the time assigned for them was quite unsuitable for work ^-
There is another form of ploughing called gafot-earth,
which has no reference to any particular time-limits. A
patch of the lord's land is assigned to the homage for
cultivation, and every tenant gets his share in the work
according to the size of his holding. Gafol-earth is not
only ploughed but mostly sown by the peasantry ^.
A third species of ploughing-duty is the so-called aver-
earth or grass-earth. This obligation arises when the
peasants want more pasture than they are entitled to use
by their customary rights of common. The lord may
grant the permission to use the pasture reserved for him,
and exacts ploughings in return according to the number
of heads of cattle sent to the pasturage *. Sometimes the
seminis. Et faciet unam hersuram que vocatur landegginge et valet i den.'
iii. 194 : ' Et debet herciare quotidie si necesse fuerit quousque semen
domini seminetuf, et allocabitur ei pro operacione manuali, et valet ultra
obolum. Et quia non est numerus certus de diebus herciandis, aestimant
juratores 40 dies.'
' Ramsey Cart. i. 345 : ' Qualibet autem septimana, a festo S" Michaelis
usque ad tempus sarclationis tribus diebus operatur, quodcunque opus sibi
fuerit injunctum ; et quarto die arabit unum sellionem, sive jungatur cum alio,
sive non.'
- Glastonbury Inqu. of 1189, p. 64 : 'A die circumcisionis similiter, excepta
ebdomada Pasche, si possit per gelu, et si gelu dUrat per 12 dies, quietus
debet esse. Si amplius durat, restituet araturam.'
' Add. MSS. 6159, f 49, b : ' Idem tenentes de predictis 22 et dimidia (terris)
debent arrare ad seysonara frumenti 45 acras de gable et de qualibet terra
2 acras.' 35, b; ' Gauilherth : 'Willelmus de Bergate debet arrare dimidiam
acram ; Nicholaus de Jonebrigge et socii ejus unam virgam ; heredes
Johannis 8 pedes ; Ricardus Cutte 8 pedes . . . Summa acraram 25 acre
I pes. Hec debent arrare et seminare.'
* Rot. Hundred. U. 768, b : ' Item si habeat carucam integram vel cum
sociis conjunctam, ilia caruca arabit domino 2 acras terre ad yvernagium et
herciabit quantura ilia caruca araverit in die, et istud servicium appellatur
Greserthe, pro quo servicio ipse 'W. et omnes alii consuetudinarii habebunt
pasturas dominicas ad diem (sic. corr. a die) ad Vincula S" Petri usque ad
festum beate Marie in Marcio et prata dominica postquam fenum fuerit
cariatum.'

Chap. IIL] ' {ginf^AXt^J 28 1
same imposition is levied when more cattle are sent to the
commons than a holding has a right to drive on them ^.
It is not impossible that in some cases the very use of
rights of common was made dependent on the perform
ance of such duties^. A kindred exaction was imposed
for the use of the meadows ^. Local variations have, of
course, to be taken largely into account in all such matters :
the distinction between gafol-earth and grass-earth, for
instance, though drawn very sharply in most cases, gets
somewhat confused in others.
Manorial records mention a fourth variety of ploughing-
work under the name of ben-earth, precariae carucarum.
This is extra work in opposition to the common plough
ings described before*. It is assumed that the subject
population is ready to help the lord for the tillage of his
land, even beyond the customary duties imposed on it.
It sends its ploughs three or four times a year ' out of
love,' and 'for the asking.' It may be conjectured how
agreeable this duty must have been in reality, and indeed
by the side of its common denominations, as boon-work
' Glastonbury Cart., 'Wood MSS. 1, f 44, b : 'Tenens dimidiam hidam
habet 4 animalia in pascius quieta, et si plus habuerit — arabit et herciabit
pro unoquoque dimidiam acram.'
* Add. MSS. 6159, i. 26, b : ' De qualibet caruca arant unam acram de
averherde ; et si per negligenciam alicujus remanserit acra non arata, tunc
mittet dominus semen quod sufficiat ad unam acram ad doraura illius et
oportebit Ulum reddere bladum ad mensuram propinque acre et habebit tum
herbagium de acra assignata.' Cart, of Beaulieu, Cotton MSS. Nero, A. xii,
f 102, b : ' Et si habeat bovem vel vaccam iunctam, arabit pro quolibet virgo
dimidiam acram ad festum S" Martini sine cibo.' Glastonbury Inqu. of
1 189, f 116: ' De qualibet carruca debent arare ad seminandum 7 acras, et
ad warectum 7 acras, ut boves possint ire cum bobus domini in pastura.'
^ Exch. Q. R. Min. Ace. Bk. 514; T. G. 41, 173: '(Extenta manerii de
Burgo) medwelond . . .debent arare tantam terram quantum habent de prato.'
* Exch. Q. R. Min. Ace. Bk. 513, 97 : ' Beinerth : 12 custumarii arabunt
6 acras terre ad semen yemale. Grasherthe : 12 arabunt cum quanto iungunt
per unum diem ad seraen yeraale.' Ely Inqu., Cotton MSS. Claudius, C. xi.
f 30, a : ' Arabit de beneerthe si habeat carucara integrara 3 rodas, et si
iungat cura alus ipse et ille cura quo iungit assidue arabunt 3 rodas.'
Domesday of St. Paul's, 26 ; ' Et ad precariam carucarum arabit unara rodam
scil. quartam partem acre sine cibo.' Glastonbury Inqu. of 1189, p. 98 :
' R. de 'Wttone tenet dimidiam hidam pro una marca et debet habere ad
preces per annum 12 homines et bis arare ad preces.'

2 82 (^ttvae (?Ootrft an^ (Een^e. [essayil
and asked-work, we find much rougher terms in the speech
of some districts — it is deemed untawenearth and godlese-
bene ^. It must be said, however, that the lord generally
provided food on these occasions, and even went so far
as to pay for such extra work.
Other expressions occur in certain localities, which are
sometimes difficult of explanation. Lentenearth''', in the
manors of Ely Minster, means evidently an extra plough
ing, in Lent The same Ely records exhibit a ploughing
called Fits tner the or Filsingerthe ^, which may be identical
with the Lentenearth just mentioned : a fastnyngseed^
occurs at any rate which seems connected with the plough
ing under discussion. The same extra work in Lent is
called Tywe^ in the Custumal of Bleadon, Somersetshire.
When the ploughing-work is paid for it may receive the
name oi penyearth ^- The Gloucester survey speaks of the
extra cultivation of an acre called Radacre, and the Ely
surveys of an extra rood ' de Rytnesse ''.' I do not ven
ture to suggest an explanation for these last terms ; and
^ Gloucester Cart. iii. 115 : 'Johannes Barefoth tenet dimidiam virgatam
terre continentem 24 acras . . . et debet arare qualibet secunda .septimana
a festo S" Michaelis usque ad festum Beati Petri ad Vincula uno die . . . Et
praeterea debet quater arare in terra domini, et vocantur ille arurae un-
lawenherje.' Black Book of St Augustine's, Cotton MSS. Faustina, A. i.
f. 44 ; ' . . . arare 18 acras ad frumentum de godlesebene.'
" Ely Inqu., Cotton MSS. Claudius, C. xi, f. 45, a : ' Preterea idem arabit
de Lentenerfe dimidiam acram.'
' Ibid., 30, b : ' Item iste cum quanto iungit arabit de filstnerthe eodem
tempore (ante Natale) per unum diem . . . Item arabit in quadragesima tres
acras et 3 rodas et araturara de filsingerhe (sic). Item arabit in estate
3 acras et de beneerthe 3 rodas ut in hyeme, set nihil arabit de filsingerjie.'
* Ibid., 35, a : 'Itera per idem tempus arabit (ante Natale) dimidiam
acram pro fastningsede sine cibo et opere si habeat carucam integram. Et
si iungat cum aliis, tunc iste et socenarii sui cum quibus iunget arabunt
tantum et non amplius.'
^ Custumal of Bleadon, 189.
* Gloucester Cart. ii. 134 : ' Et facit unam aruram que vocatur peniherfe
et valet tres denarii, quia recipiet de bursa domini quartum denarium.' Cf
ii. 162: ' Et praeterea faciet unam aruram que vocatur yove (yoke?), scil.
arabit dimidiam acram, et recipiet de bursa domini unum denarium obolum,
et valet ultra unum denarium obolum.'
' Gloucester Cart. ni. 80 : ' (Dimidius virgatarius) debet unam aruram que
vocatur radaker, scil. arare unara acram ad semen yemale, et triturare semen

Chap. IIL] (Reaping. 283
I need not say that it would be easy to collect a much
greater number of such terms in local use from the mano
rial records. It is sufficient for my purpose to mark the
chief distinctions.
All the other labour-services are performed more or less Reaping.
on the same system as the ploughings, with the funda
mental difference that the number of men engaged in
them has to be reckoned with more than the number of
beasts. The extents are especially full of details in their
descriptions of reaping or mowing corn and grass ; the
process of thrashing is also mentioned, though more rarely.
In the case of meadows {mederipe) sometimes their dimen
sions are made the basis of calculation, sometimes the
number of work-days which have to be employed in order to
cut the grass ^. As to the corn-harvest, every holding has
its number of acres assigned to it ^, or else it is enacted that
every house has to send so many workmen during a certain
number of days ^ If it is said that such and such a
tenant is bound to work on the lord's field at harvest-time
with twenty -eight men, it does not mean that he has
to send out such a number every time, but that he has to
furnish an amount of work equivalent to that performed
by twenty-eight grown-up labourers in one day; it may
be divided into fourteen days' work of two labourers, or
into seven days' of four, and so forth.
Harvest-time is the most pressing time in the year for
rural work ; it is especially important not to lose the
ad eamdem acram, scU. duos busseUos framenti.' On iu. 79 we have another
reading for the same thing : ' Et arabit unam acram quae vocatur Eadacre et
[debet] triturare semen ad eamdem acram, et valet arura cum trituracione
seminis 4 denarios.' 'What is the right term? — Ely Inqu., Cotton MSS.
Claudius, C. xi. f 133, a : ' Et arabit qualibet die a festo S" Michaelis usque
ad gulam Augusti dimidiam rodam, que faciunt per totum quinque acras
. . . Et praeterea arabit unara rodam de Rytnesse.'
^ Add. MSS. 6159, f 53, b : ' Item tota villata de Bocayng debet falcare
12 acras prati et dimidiam, et valet 4 solidos.'
2 Domesday of St. Paul's, 47 : ' Et preter hec unaquaque domus hide debet
metere 3 dimidias acras avene et coUigere unum seUionem fabarum.'
' Gloucester Cart. ui. 84, 85 : ' Ricardus Bissop tenet unum messuagium
et 10 acras terre . . . (operabitur) in messe domini cum 24 hominibus.'

284 (Etttrae (P^orR an6 CBen(0. [Essayii.
opportunity presented by fine weather to mow and garner
in the crop before rain, and there may be only a few days
of such weather at command. For this reason extra labour
is chiefly required during this season, and the village
people are frequently asked to give extra help in connexion
with it. The system oi precariae is even more developed
on these occasions than in the case of ploughing^. All
the forces of the village are strained to go through the
task ; all the houses which open on the street send their
labourers ^, and in most cases the entire population has to
join in the work, with the exception of the housewives
and perhaps of the marriageable daughters* The land
lord treats the harvesters to food in order to make these
exertions somewhat more palatable to them*. These
'love-meals' are graduated according to a set system.
If the men are called out only once, they get their food
and no drink : these are ' dry requests.' If they are made
to go a second time, ale is served to them {precariae
cerevisiae). The mutual obligations of lords and tenantry
are settled very minutely * ; the latter may have to mow
' Eynsham Cart. 88, b : ' Idem metet dimidiam acram bladi domini sine
cibo domini et valet opus 4 denarios et vocatur la bene. Idem faciet cum
uno homine beripam sine cibo domini et vocatur mederipe, et valet opus
4 den. . . . Idem veniet ad magnam bederipam domini ad cibum domini cum
omnibus famulis suis et ipse supervidebit operari in propria persona sua.
Quod si famulos non habuerit, tunc operabitur in propria (persona).'
^ Ramsey Cart. i. 488 : ' Quaelibet domus habens ostium apertum versus
vicum tam de malmannis quam de cotmannis et operariis inveniet unum
hominem ad louebone.'
^ Ely Inqu., Cotton MSS. Claudius, C. xi. f 38, b : 'Ad precariam ceruisie
inveniet omnem familiam preter uxorem domus et filiam maritabilem . . .
Quod si voluerint metere propria blada metent in suis croftis et non alibi.'
* Domesday of St. Paul's, 75, 76 : ' Et falcare dimidiam acram sumptibus
suis et postmodum falcare cura tota viUata pratum domini ita quod totum sit
falcatum, et qualibet falx habebit unum panem . . , et ad siccas precarias in
autumpno inveniet unum hominem, et ad precarios ceruisie veniet cum quot
hominibus habuerit ad cibum domini.' Cf. 61.
° Cart, of Battle, Augment. Off. Misc. Books, N. 57, f 36, a : ' QuUibet vir-
garius . . . debet invenire ad quemlibet precarium autumpnalem ad metendum
2 homines et habebunt singuli singulos panes ponderis 18 librarum cere et
duo unum ferchulum carnis precii unius denarii, si sit dies carnis et potagium
ad primum precarium. Ad secundum uero erit panis medietas de framento
et medietas ordei et cetera alia ut supra. Ad terciam precariam erit panis

Chap. III.] tAXVXAC^^ §tXX)kt, 285
a particular acre with the object of saying ' thanks ' for
some concession on the part of the lordt The same kind
of ' requests ' are in use for mowing the meadows. The
duties of the peasants differ a great deal according to size
of their holdings and their social position. The greater
number have of course to work with scythe and sickle,
but the more wealthy are called upon to supervise the
rest, to ride about with rods in their hands ^. On the
other hand, a poor woman holds a messuage, and need do
no more than carry water to the mowers *.
A very important item in the work necessary for medi- Carriage
eval husbandry was the business of carrying produce from
one part of the country to the other. The manors of a
great lord were usually dispersed in several counties, and
even in the case of small landowners it was not very easy
to arrange a regular communication with the market. The
obligation to provide horses and carts gains in importance
accordingly*, These averagia are laid out for short and
totus de frumento et cetera ut prenotatur. Ad quartam precariam quod
vocatur hungerbedrip quilibet de tenentibus domini preter Henricum de
Chaus inveniet unum hominem ad metendum et habebunt semel in die cibum,
scU. panem et potum et unum ferculura secundum quod serviens illius loci
providere placuerit, et caseum.'
' Ely Inqu., Cotton MSS. Claudius, C. xi. 166, b : ' Metet dimidiam acram
que vocatur >anc alfaker.' The name may possibly mean, that the peasant
earned the gratitude of the lord by ploughing the half-acre. This construc
tion would be supported by other instances of ' sentimental ' terminology.
Cf Warwickshire Hundr. RoU, Q. R. Misc. Books, N. 18, f 94, b : ' Love-
bene.' Cartul. of Okeburn, Al. Prior. 2/2, 17 : 'Post precarias consuetudi-
narias debet de gratia, ut dicitur, quocienscumque precatus fuerit, (operare)
per unum hominem.' Roch. Custum., ed. Thorp, 10, b : 'Et pro prato de
Dodecote falcando, pro amore, non pro debito, habebunt unum multonem et
unum caseum de 4 d.'
^ Gloucester Cart. i. no: 'Idem Thomas cum virga sua debet interesse
operationibus quo ad metebederipas.'
' Glastonbury Inqu. of 1189, p. 91 : 'Editha tenet unam mesuagium et
unam croftara pro 6 d. et fert aquam falcatoribus.'
* Add. MSS. 6159, t 53, a : ' Item sunt in dicto manerio 22 virgate et
debent invenire in proxima septimana post festum S'' Michaeli, per unum
diem a mane usque ad horam meridianam 44 carecta, ad firaa doraini
cariandum.' Domesday of St. Paul's, 62 : ' Quod si boves non habuerit vel
aUa animalia ad arandum faciet aliud opus quod jussum fuerit et educet 10
plaustra de finio post Pascha et habebit dignerium de domino et infra hun
dredum portabit unum plaustrum vel duas carectatas.'

286 (^tttraf (^ovft an& (E^n^e. [essayh.
long distances, and the peasants have to take their turn
at them one after the other ^. They were bound to carry
corn to London or Bristol according to the size of their
holdings^. Special importance was attached to the car
riage of the ' farm,' that is of the products designed for
the consumption of the lord ^ In some surveys we find
the qualification that the peasants are not obliged to carry
anything but such material as may be put on the fire, i.e.
used in the kitchen *- In the manor itself there are many
carriage duties to be performed : carts are required for the
grain, or for spreading the dung. The work of loading
and of following the carts is imposed on those who are
not able to provide the implements ®. And alongside of
the duties of carriage by horses or oxen we find the cor
responding manual duty. The ' averagium super dorsum
suum ' falls on the small tenant who does not own either
horses or oxen^. Such small people are also made to
drive the swine or geese to the market'. The lord and
his chief stewards must look sharp after the distribution
' Ely Inqu., Cotton MSS. Claudius C. xi. 38, b : 'Averagium secundum
turnum vicinorum suorum curtum et longum.'
' Domesday of St. Paul's, 55 : ' Rogerus dives . . . cum villata ad firmam
portandam Londi.nium facit quantum requiritur de 20 acris.' Glaston
bury Inqu. of 1189, f 97 : ' Quater faciet summagium apud BristoUiam.'
Domesday of St. Paul's, 47 : ' Preterea debet hida portare 4 summagia
et dimidiam per totum ab horreo domini usque ad navem ter in anno
divisim.' ' Add. MSS. 6159, f 28, a : ' Item de predictis cotariis unusquisque habet
unum horsacram et de ista acra debet unusquisque invenire unum equum
ad ducendum cum aliis frumentum de firma ad Cantuariam, et pisas, et sal,
et presencia portare.'
' Black Book of St. Augustine's, Cotton MSS. Faustina, A. i, t 186 : ' NihU
debent averare ad tunc, nisi res que sunt ad opus conventus et que poni
debent super ignem.'
' Glastonbury Inqu. of Ii8g, f 65 : ''W. Sp. tenet unum fordil pro 15 den.
et operatur quolibet die lune per totum annum et (debet) ladiare cum aUo
ferdilario sicut dimidii virgatarii.' Domesday of St. Paul's, 19 : ' Omnes isti
(cotarii) debent operari semel . . , Debent eciam portare et chariare.'
' Rot. Hundr. ii. 605, b : ' Et faciet averagium super dorsum suum ad
voluntatem domini.'
' Glastonbury Inqu. of 1189, f 71 : ' Portat et fugat aucas, et gallinas, et
porcos Glastonie.' Domesday of St. Paul's, 27 : ' (Cotarii) isti debent singuUs
diebus Lune unam operacionem et portare et fugare porcos Londoniam.'

Chap. IIL] BaU\HV ^nvkt0. 28 J
of these duties in order to prevent wealthy tenants from
being put to light duties through the protection of the
bailiffs, who may be bribed for the purpose \
It would be hard to imagine any kind of agricultural work
which is not imposed on the peasantry in these manorial
surveys. The tenants mind the lord's ploughs, construct
houses and booths for him, repair hedges and dykes, work
in vineyards, wash and shear the sheep ^, etc. In some
cases the labour has to be undertaken by them, not in the
regular run of their services, but by special agreement, as
it were, in consideration of some particular right or per
mission granted to them *. Also it happens from time to
time that the people of one manor have to perform some
services in another, for instance, because they use pasture
in that other manor *. Such ' forinsec ' labour may be due
even from tenants of a strange lord. By the side of purely
agricultural duties we find such as are required by the
political or judicial organisation of the manor. Peasants
are bound to guard and hang thieves, to carry sum
monses and orders, to serve at the courts of the superior
lord and of the king ^.
In consequence of the great variety of these labour-ser- Classifica-
vices they had to be reduced to some chief and plain sub- labour-
divisions for purposes of a general oversight. Three main services.
classes are very noticeable notwithstanding all variety :
the araturae, averagia, and manuoperationes. These last
* Gloucester Cart. iii. 218 : ' Item, quod nuUus prepositus aUquid ab aliquo
recipiat, ut ipsum ad firmam esse permittat vel ad levem ponat operationem
mutando cariagia summagia debita in operibus manualibus.'
^ See, for instance, Glastonbury Inqu. of 1189, pp. 22, 29; Gloucester
Cart. in. 17 ; Domesday of St. Paul's, 54.
' Cart, of Bury St. Edmunds, Harl. MSS. 3977, t 82 : ' (Debet) metere pro
porcis quilibet dimidiam acram siliginis. '
* Black Book of St. Augustine's, Cotton MSS. Faustina, A. i, f 44: 'Ara-
tura horainum de N.' Cartul. of Battle, Augm. Off. MisceU. Books, N. 18,
f. 2, a : ' Forinseca servicia . . . arant . . . seminant.'
° Domesday of St. Paul's, 38 : ' . . . et furem captum in curia custodiet et
iudicatum suspendet et sparget fimum ad cibum domini. ' Ibid. 62 : ' G. G.
tenet 5 acras . . . (debet) qualibet septimana 2 opera et sequitur precarias in
autumpno . . . R. H. 5 acras per idem servicium et preterea defendit eas
versus regem.'

288 (^tttae (^orR an5 (^en^0. Pssayil
are also called hand-ddinae or daywerke -^ ; and the records
give sometimes the exact valuation of the work to be
performed during a day in every kind of labour. Some
times all the different classes are added up under one
head for a general reckoning, and without any distinction
as to work performed by hand or with the help of horse
or ox. Among the manors of Christ Church, Canterbury ^,
for instance, we find at Borle ' 1480 work-days divided into
44 weeks of labour from the virgaters, 88 from the cotters,
330 from the tofters holding small tenements in the
fields.' In Bockyng the work-days of 52 weeks are reckoned
to be 3333. It must be added, that when such a general
summing up appears, it is mostly to be taken as an indica
tion that the old system based on labour in kind is more
or less shaken. The aim of throwing together the different
classes of work is to get a general valuation of its worth,
and such a valuation in money is commonly placed by the
side of the reckoning. The single day-work yields some
times only one penny or a little more, and the landlord
is glad to exchange this cumbrous and cheap commodity
for money-rents, even for small ones.
Payments We must now proceed to examine the different forms
assumed by payments in kind and money : they present
a close parallel to the many varieties of labour-service.
Thirteenth-century documents are full of allusions to
payments in kind — that most archaic form of arranging
the relations between a lord and his subjects. The
peasants give corn under different names, and for various
reasons : as gavelseed, in addition to the money-rent paid
for their land " ; as foddercorn, of oats for the feeding of
' Gloucester Cart. in. 54 : ' Debet a festo S" Michaelis usque ad festum
S" Petri ad Vincula qualibet septimana per 4 dies operari opus manuale cum
uno homine, et valet quolibet dieta obolum.' Glastonbury Inqu. 28 : ' Si est
ad opus a festo S" Petri ad Vincula usque ad festum S" Michaelis nisi festum
intercurrat qualibet die faciet unam dainara.'
^ Add. MSS. 6159, f 25, a; 53, b.
' Domesday of St. Paul's, 33 : ' Singule virgate debent per annum . . . de
gavelsed 3 mensuras quarum 7 faciunt mensuram de Colcester.' Black Book
of St. Augustine's, Cotton MSS., Faustina, A. i, 31, d : ' Sunt praeterea 5
suUungi et 50 acre in eadem hamiletto qui debent bladum de gabulo.'

in

kind.

Chap. III.] {pA^m^nt0 xn TXxnb. 289
horses ^ ; as gathercorn, which a manorial servant has to
collect or gather from the several homesteads ^ ; as corn-
bole, a best sheaf levied at harvest-time ^. Of other pro
vender supplied to the lord's household honey is the most
common, both in combs and in a liquid form*. Ale is
sometimes brewed for the same purpose, and sometimes
malt and braseum furnished as material to be used in the
manorial farm". Animals are also given in rent, mostly
sheep, lambs, and sucking-pigs. The mode of selection
is peculiar in some cases. In the Christ Church (Canter
bury) manor of Monckton each sulung has to render two
lambs, and the lord's servant has the right to take those
which he pleases, whereupon the owner gets a receipt, evi
dently in view of subsequent compensation from the other
co-owners of the sulung^. If no suitable lamb is to be
found, eight pence are paid instead of it as mail {mala).
On one of the estates of Gloucester Abbey a freeman has
to come on St. Peter's and Paul's day with a lamb of the
value of lid., and besides, 13 pence in money are to be
hung in a purse on the animal's neck '. Poultry is brought
• Domesday of St. Paul's, 6 : ' Et unum quarterium de auena ad fodder-
corn.' ^ Add. MSS. 6159, 26, b : ' Et de gadercorn reddunt de quolibet swUnge
4 coppas de puro ordeo et de presenti gallum et gallinara de qualibet domo
. . . quas serviens curie debet circumeundo querere.'
=¦ Ely Inqu., Cotton MSS., Claudius, C. xi. 185, b; Bury St. Edmunds
Cart., Hari. MSS. 3977, f 84, b.
' Glastonbury Inqu. of 1189, p. 67 (cf 145) : 'Henricus "Wide tenet 25
acras de prato pro stacha meUis. Utilius quod esset in manu domini.'
Gloucester Cart. ii. 128 ; ' Honilond T. T. tenet 6 acras terre pro 8 lagenis
mellis vel pretio.'
= Ramsey Cart. i. 300 : ' Faciet etiam unam mutara (leg. mittami et dimi
diam braesii, quam recipiet in curia pro voluntate sua bene mundatam, et
per se ipsum, et iUam carriabit apud Rameseiam. Quae si refutetur, de
fectum ejus propriis sumptibus in omnibus supplebit, nisi mensura sibi tradita
sit minor.'
« Add. MSS. 6159, f 26, b : ' De quolibet Swlinge duos agnos reddunt in
estate. Ita quidem quod serviens curie, si invenerit agnum in sulungis ilUs
qui ei placuerit, accipiat eum cuiuscumque sit, et iUe ad quem pertinebit
adquietacionem. Quod si agnus inventus non fuerit 8 den. dabit quando
mala persolvat.'
' Gloucester Cart. iii. 77 : ' 'Walteras Fremon tenet 6 acras terrae cum
• VOL. L U

290 (^tttrae (^otrft an5 (genf0. t^^^^^"-
almost everywhere, but these prestations are very different
in their origin. The most common reason for giving capons
is the necessity for getting the warranty of the lord ^ : in
this sense the receipt and payment of the rent constitute
an acknowledgment on the part of the lord that he is
bound to protect his men, and on the part of the peasant
that he is the lord's villain. 'Wood hens' are given for
licence to take a load of wood in a forest ; similar pres
tations occur in connexion with pasture and with the use
of a moor for turbary^. At Easter the peasantry greet
their protectors by bringing eggs : in Walton, a manor of
St Paul's, London, the custom is said to exist in honour
of the lord, and at the free discretion of the tenants^.
Besides all those things which may be 'put on the fire
and eaten,' rents in kind sometimes take the shape of some
object for permanent use, especially of some implement
necessary for the construction of the plough* Trifling
rents, consisting of flowers or roots of ginger, are some
times imposed with the object of testifying to the lord's
seignory ; but the payers of such rents are generally free
holders ^ I need not dwell long on the enumeration of
all the strange prestations which existed during the Middle
Ages, and partly came down to our own time : any reader
curious about them will find an enormous mass of inter-
mesuagio et reddit inde per annum die Apostolorum Petri et Pauli unum
multonem pretii 12 den. vel ultra, cum 12 den. circa coUum suum ligatis.'
' Exch. Q. R. Treas. of Rec. 59/69; 'Capones . . . pro warentia.'
' Gloucester Cart. iu. 71 : ' Propter illam gallinara conquererunt habere de
bosco doraini regis unam summam bosci, quae vocatur dayesen.' Exch.
Q. R. Min. Ace. Bk. 513, N. 97 : ' 'Wodehennus ... ad Natale.' Suffolk RoUs
(Bodleian), 3 : ' Dicet curia quod R. debet facere domino sicut alii custu
marii, scil. oues et gallinas, quia fodit etsi non pascat.' Ely Inqu. , Cotton
MSS. , Claudius, C. xi, f 52, a : ' Redditus caponum per annum pro aueriis
termino pasche.'
^ Domesday of St. Paul's, 51 : ' Et ad pascha ova ad libitura tenendum et
ad honorem domini.'
' Glastonbury Inqu. of 1189, p. 35 : ' Hoc est accrementum redditus tem
pore Roberti; Ordricus pro 4retiis terre altero anno i soccum.' Gloucester
Cart. iu. 79 : ' 'Walterus de Hale tenet unam acram terre et reddit inde per
annum unum vomerem ad festum S" Michaelis pretu 8 den. pro omni servitio.'
= 'Warwickshire Hundr. Roll, Exch. Q. R. Misc. Books, N. 18, f 2, a : ' Per
servicium unius radicis gyngibrii . . . unius rose.'

Chap. IIL] (Wloneg ^A2m^nt0, 291
esting material in Hazlitt's ' Tenures of Land and Customs
of Manors.'
In opposition to labour and rents in kind we find a Money-
great many payments in money. Some of these are said P^y™'^"'^-
in as many words to have stept into the place of labour
services ; of mowing, carrying, making hedges ^, etc. The
same may be the case in regard to produce : barlick~
silver is paid instead of barley, fish-silver evidently instead
of fish, malt-silver instead of malt ; a certain payment
instead of salt, and so on ^. But sometimes the origin of
the money rent is more difficult to ascertain. We find, for
instance, a duty on sheep, which is almost certainly an
original imposition when it appears as f aid-silver. Even
so the scythe-penny from every scythe, the bosing-sitver
from every horse and cart, the wood-penny, probably for
the use of wood as fuel, must be regarded as original
taxes and not quit-rents or commutation-rents ^- Pannage
is paid in the same way for the swine grazing in the
woods*. 'Ward-penny appears also in connexion with
cattle, but with some special shade of meaning which it is
difficult to bring out definitely ; the name seems to point
to protection, and also occurs in connexion with police
arrangements *.
I must acknowledge that in a good many cases I have Classifica-
been unable to find a satisfactory explanation for various ^°° °y
payments.
* Gloucester Cart. iu. 55 : ' Omnes praedicti consuetudinarii . . . debent
cariare molas, scil. petras molares ad molendinum domini, vel dabunt in
communi 13 den. quadrantem.' Rot. Hundr. ii. 750, b : ' Et modo eorum
servicia convertuntur in denariis.'
' Add. MSS. 6159, f 53, a : ' BarlicksUver. Item debet Willelmus de B.
per annum 6 quarteria ordei et 6 quarteria auene,' etc.
' Roch. Custum. 4, a : ' Dabunt eciam denarium pro falce quod angUce
dicunt sithpeni.' Glastonbury Inqu. of 1189, p. 59: 'Et dabit 4 stacas et
dimidiam frumenti ad consuetudinem et eadem die i denarium iUi qui coUigit
fuaUa.' Ely Reg., Cotton MSS., Claudius, C. xi. f 82, b : ' De bosingsUuer
I denarium ad festum S" Martini si habeat equum et carectara.'
* Add. Charters, 5, 629 : ' (Stephanus) retraxit et abduxit porcos suos
tempore pannagii.'
' Rot. Hundr. ii. 453, a : ' Memorandum quod omnes isti prenominati tam
liberi quam viUani qui habent bestias precii 30 den. dant domino predicto per
annum i den. pro quadam consuetudine que vocatur "Wartpenny."
U 3

292 (gut^e (^otrft an5 (Een(0. [Essayh.
terms which occur in the records for the divers payments.
An attentive study of local usages will probably lead to de
finite conclusions as to most of them^- From a general point
of view it is interesting to notice, that we find already in our
records some attempts to bring all the perplexing variety
of payments to a few main designations. Annual rents
are, of course, reckoned out under the one head of ' census.'
Very obvious reasons suggested the advisability of com
puting the entire money-proceed yielded by the estate^.
It sometimes happens that the general sum made up in this
way, fixed as it is at a constant amount, is used almost as a
name for a complex of land ^. A division of rents into old
and new ones does not require any particular explanation *
But several other subdivisions are worth notice. The rent
paid from the land often appears separately as tandgafol or
landchere. It is naturally opposed to payments that fall
on the person as poll taxes ^. These last are considered
as a return for the personal protection guaranteed by the
lord to his subjects. Of the contrast between gafol as a
customary rent and mat as a payment in commutation I
have spoken already, and I have only to add now, that gild^
' What may be, for instance, the explanation of the huntenegHd, which
not unfrequently appears in the records. E.g. Gloucester Cart. ui. 22 :
' Johannes Carpentarius et relicta Kammock tenent dimidiam virgatam terrae
et faciunt idem quod praescripti, exceptis huntenesilver et gallina.' Add.
MSS. 6159, f 23, a: ' Ricardus atte mere tenet de doraino in viUenagio 20
acras terre ; reddit inde per annum de unthield ad festum purificacionis
4 sol. 5 den. ob. et ad pascham 6 d. Et ad festum S" Michaelis 17 de
narios.' The payment is a very important one and hardly connected with
hunting. ^ Domesday of St. Paul's, 140 (Inqu. of ii8r): ' Keneswetha . . . summa
denariorum 10 libre et 7 sol. et obolus.' Cf xx.
^ Battle Cart., Augment. Off. Misc. Books, N. 18, f 5, a: 'Juga que sunt
in sex libris in Wy.'
' Christ Church Reg., Hari. MSS. 1006, f 56 : ' Newerentes.'
' Domesday of St. Paul's, 83 : ' Inferius notati tenentes terras dant land-
gablum. Et si habent uxores 2 denarios de havedsot quia capiunt super
dominium boscum et aquam et habent exitum, et si non habent uxorem vel
uxor virum, dabit unum denarium. Galfridus filius AUwardi pro terra quon
dam Theodori cui non attinet 5 denarios landgabuli.' Ramsey Inqu., Cotton
MSS., Galba E. x. f. 46, b : ' S. de W. dat pro terra sua 16 denarios et 12
denarios pro se et uxore sua.' Exch. Q. R. Min. Ace. Bk. 587, T. P. R.
8109 : ' Denarii ... ad existendum in warentia.'

Chap. IIL] Qttone]^ ^A^mtnt0* 293
is sometimes used in the same sense as mdl^. Another
term in direct opposition to gafol is the Latin donum^.
It seems to indicate a special payment imposed as a
kind of voluntary contribution on the entire village. To
be sure, there was not much free will to be exercised in the
matter ; all the dependent people of the township had to
pay according to their means ^- But the tax must have
been considered as a supplementary one in the same sense
as supplementary boon-work. It may have been originally
intended in some cases as an equivalent for some rights
surrendered by the lord, as a mat or gild, in fact *. In
close connexion with the donum we find the auxilium^,
also an extraordinary tax paid once a year, and dis
tinguished from the ordinary rent. It appears as a direct
consequence ofthe political subjection ofthe tenantry^ : it
is, in fact, merely an expression of the right to tallage.
Our records mention it sometimes as apportioned according
to the number of cattle owned by the peasant, but this
concerns only the mode of imposition of the duty and
hardly its origin ''. As I have said already, the auxilium is
' Archaeologia, xlvu. 127 : ' (Soke of Rothley) Gildi hoc est quietum de
consuetudinibus servilibus quae quondam dare consueverint sicuti Hornchild
et hiis sirailibus.'
^ Glastonbury Inqu. of 1189, p. 4 : '. . .unara virgatam et dimidiam et
5 acras pro 5 solidis de gabulo et 7 denariis de dono.'
' Glastonbury Inqu. of 1189, p. 39: ' Omnes simul dant de dono 40 soli
dos secundum terras quas tenent.' Ibid. 5: 'Debet dare de dono quantum
pertinet de quinque libris.' Ramsey Cart. i. 46: 'De denariis qui vocantur
20 solidi dat dimidius virgatarius 6 denarios.'
* Ramsey Cart. i. 440 : ' Villa dat 20 solidos, qui dantur quod cum aliquis
in misericordia domini, det ante judicium sex denarios, et post, si expectet
judicium, duodecim denarios, nisi sit pro furto, vel aliqua maxima trans-
gressione. '
° Gloucester Cart. iii. 78 : ' Dicta terra consuevit dare de auxilio 14 de
narios et obolum qui modo allocantur consuetudinario in solutione octo
marcarum.' ' Exch. Q. R. Treas. Rec. 20/68 : ' Item debent domino ad festum S"
Michaelis auxilium ad placitum suum et ad forinsecum servitium.'
' Gloucester Cart. iii. 180 : ' Et dabit pro terra 6 denarios ad auxiUum.
Dabit etiam auxUium pro averiis suis secundum numerum eorundem.'
iii. 50 : ' Et dabit auxilium secundum numerum aniraahura.' iii. 208 ; ' Et
si imposilum fuerit eidem quod in taxatione auxUii aliquod animal con-
celaverit, potest cogl ad sacramentum praestandum et se super hoc purgan-

Paymentsto State
and Church.

294 (^ttvae (^ov& Anb (Ben(0. c^ssay n.
in every respect like the donum. One very characteristic
trait of both taxes is, that they are laid primarily on the
whole village, which is made to pay a certain round sum as
a body \ The burden is divided afterwards between the
several householders, and the number of cattle, and more
particularly of the beasts of plough kept on the holding, has
of course to be taken into account more than anything
else. But the manorial administration does not much
concern itself with these details : the township is answer
able for the whole sum.
It is to be added that the payment is sometimes actually
mentioned as a political one in direct connexion with
' forinsec ' duties towards the king. The burdens which lay
on the land in consequence of the requirements of State and
Church appear not unfrequently in the documents. Among
those the seu tage and hidage are the most important. The
first of these taxes is so well known that I need not stop to
discuss it It may be noticed however that in relation to
the dependent people scutage is not commonly spoken of ;
the tax was levied under this name from the barons and the
armed gentry, and was mostly transmitted by these to the
lower strata of society under some other name, as an aid or
a tallage. Hidage is historically connected with the old
English Danegeld system, and in some cases its amount is
set out separately from other payments, and the tenants of
a manor have to pay it to the bailiff of the hundred and not to
the steward. A smaller payment called ward-penny is bound
up with it, probably as a substitute for the duty of keeping
watch and ward ^. In the north the hidage is replaced
dum. Et si per vicinos suos convictus fuerit super hoc, puniendus est pro
voluntate domini.'
' Gloucester Cart. iii. 203 : ' . . . omnes isti consuetudinarii de Colne
dant in communi ad auxUium 46 soUdos 8 denarios." Rochester Custumal,
4, a : ' De omnibus decem jugis debent scotare ad donum domini viUe et ad
servicium domini Regis.'
2 Domesday of St. Paul's, 64 : ' Dicunt quod manerium de Berlinge de
fendit se versus regem pro duabus hidis et dimidia . . . Reddunt ... pro
hidagio baiUivo hundredi de Reilee 31 denarios et r3 denarios de Wardpeni,
de quibus dominicum reddit de 20 acris 2 den. et obolem pro hidagio et
a denarios pro Wardpeni.'

Chap. IIL] (]^At^0 Anb ZA^t0» 295
by carnage ^, a tax which has given rise to learned contro
versy and doubt ; it looks like an assessment according to
the number of horns of cattle, pro numero averiorum, as
our Latin extents would say. The Church has also an
ancient claim on the help of the faithful ; the church-
scot of Saxon times often occurs in the feudal age under
the name of churiset or cheriset'^. It is mostly paid in
kind, but may be found cccasionally as a money-rent.
A survey ofthe chief aspects assumed by the work and the Questions
payments ofthe dependent people was absolutely necessary, by^Fsnney
in order to enable us to understand the descriptions of rural of work
arrangements which form the most instructive part of the
so-called extents. But every survey of terms and distinc
tions (even if it were much more detailed than the one I
am able to present), will give only a very imperfect idea of
the obligations actually laid on the peasantry. It must
needs take up the different species one by one and con
sider them separately, whereas in reality they were meant
to fit together into a whole. On the other hand it may
create a false impression by enumerating in systematic order
facts which belonged to different localities and perhaps to
different epochs. To keep clear of these dangers we have
to consider the deviations of practical arrangements from
the rules laid down in the books and the usual combina
tions of the elements described.
When one reads the careful notices in the cartularies as Cases
to the number of days and the particular occasions when uguaTo'rder
work has to be performed for the lord, a simple question is was not
suggested by the minuteness of detail. What happened
when this very definite arrangement came into collision
with some other equally exacting order ? One of the three
days of week-work might, for instance, fall on a great feast ;
or else the weather might be too bad for out-of-doors
work. Who was to suffer or to gain by such casualties ?
The question is not a useless one. The manorial records
1 Exch. Esch. Ultra Trentam, 1/49; 'Pro comagio de feodis miUtum 17
sol. 8 den.'
" Glastonbury Inqu. of 1189, p. 65 : ' In die S" Martini debet dimidiam
dainam frumenti de cheriset.'

296 (Bujraf (^orft Anb (Ben^0. [e^^ay il
raise it occasionally, and their ways of settling it are not
always the same. We find that in some cases the lord
tried to get rid of the inconveniences occasioned by such
events, or at least to throw one part of the burden back
on the dependent population ; in Barling, for instance,
a manor of St Paul's, London \ of two feasts occurring
in one week and even in two consecutive weeks, one
profits to the villains and the other to the lord ; that
is to say, the labourer escapes one day's work altogether.
But the general course seems to have been to liberate
the peasants from work both on occasion of a festival
and if the weather was exceptionally inclement^. Both
facts are not without importance : it must be remem
bered that the number of Church festivals was a very
considerable one in those days. Again, although the
stewards were not likely to be very sentimental as to bad
weather, the usual test of cold in case of ploughing seems
to have been the hardness ofthe soil — a certain percentage
of free days must have occurred during the winter at least
And what is even more to be considered — when the men
were very strictly kept to their week- work under unfavour
able circumstances, the landlord must have gained very
little although the working people suffered much. The
reader may easily fancy the effects of what must have
been a very common occurrence, when the village house
holders sent out their ploughs on heavy clay in torrents of
rain. The system of customary work on certain days was
especially clumsy in such respects, and it is worth notice that
^ Domesday of St. Paul's, 66 : ' Beatrix relicta Osberti Casse tenet 15
acras et a festo S" Michaelis usque ad Vincula qualibet septimana debet
3 operaciones nisi festura impedierit; quod si festum feriabUe evenerit in
septimana die lune et aUud die mercurii, unum festum erit ei utUe, aliud
domino. Quod si festum evenerit eadem septimana die veneris, addito alio
festo in alia septimana veniente, dividentur iUi duo dies inter dominum et
operarium ut supradictum est.'
' Glastonbury Inqu. of 1 189, p. 64 : 'A festo S" Petri ad Vincula debent
qualibet ebdomada metere uel aliud opus facere usque ad festum S" Michaelis
nisi festum intercurrat, die lune, die martis et die mercurii.' Ibid. 62: 'Ab
Hoccadei usque ad festum S" Johannis qualibet ebdomada arabit dimidiam
acram, si possit propter duritiem.'

Chap. III.] ZU d^iff of tU ^O^b. 297
in harvest-time the landlords rely chiefly on boon-days.
These were not irrevocably fixed, and could be shifted ac
cording to the state of the weather. Still the week-work
was so important an item in the general arrangement of
labour -services that the inconveniences described must
have acted powerfully in favour of commutation.
Of course, the passage from one system to the other. Relation
however desirable for the parties concerned, was not to be the custom-
effected easily and at once : a considerable amount of ^'^y system
capital in the hands of the peasantry was required to make arbitrary
it possible, and another necessary requirement was a j^g''j°"^'' "^
sufficient circulation of money. While these were wanting
the people had to abide by the old labour system. The
facts we have been discussing give indirect proof that there
was not much room for arbitrary changes in this system.
Everything seems ruled and settled for ever. It may
happen, of course, that notwithstanding the supposed
equality between the economic strength of the different
holdings, some tenants are unable to fulfil the duties which
their companions perform ^. As it was noticed before, the
shares could not be made to correspond absolutely to each
other, and the distribution of work and payments according
to a definite pattern was often only approximate ^. Again,
the lord had some latitude in selecting one or the other
kind of service to be performed by his men ^. But speak
ing generally, the settlement of duties was a very constant
one, and manorial documents testify that every attempt
by the lord to dictate a change was met by emphatic
protests on the part of the peasantry*. The tenacity of
' Glastonbury Inqu. of 1189, p. 59: 'Willelmus filius Osanore (tenet)
unam virgatam eodem servitio, sed non potest perficere servitium.'
' Domesday of St. Paul's, 51 : ' Et omnes alii simiUter operabuntur sive
plus teneant sive minus, pro racione 5 acrarum.' Glastonbury Inqu. of 1189,
p. 104: 'W. de H. tenet unam virgatam pro dimidia virgata. .. pro alia
virgata facit Sicut pro quarta parte dimidie hide.'
' Gloucester Cart. iii. 199 : ' Et sciendum quod dominus potest eligere
utram voluerit habere servitium predictum de Johanne Spere, uel quod
dupUcet servitium R. de A. inferius inter akermannos scripti.'
' Rot. Hundr. ii. 757, a : ' Set isti tenentes memorati ut asserunt ad alias
consuetudines et servitia antiquitus esse consueverunt.'

298 (^utraf (PS)otrft ani (E^n(«f. [essayh.
custom may be gathered from the fact that when we
chance to possess two sets of extents following -, each
other after a very considerable lapse of time, the renders
in kind and the labour-services remain unmodified in
the main ^ One has to guard especially against the
assumption that such expressions as ' to do whatever he
is bid ' or ' whatever the lord commands ' imply a com
plete servility of the tenant and unrestricted power on
the part of the lord to exploit his subordinate according
to his pleasure. Such expressions have been used as
a test of the degree of subjection of the villains at dif
ferent epochs ; it has been contended, that the earlier our
evidence is, the more complete the lord's sway appears
to be^. The expressions quoted above may seem at
first glance to countenance the idea, but an attentive
and extended study of the documents will easily show
that, save in exceptional cases,- the earlier records are
by no means harder in their treatment of the peasantry
than the later. The eleventh century is, if anything,
more favourable to the subjected class as regards the
imposition of labour-services than the thirteenth, and we
shall see by-and-by that the observation applies even
more to Saxon times. In the light of such a general
comparison, we have to explain the above-mentioned
phrases in a different way. ' Whatever he is bid ' applies
to the quality and not to the quantity of the work*.
' E.g. a comparison of the inquests contained in the Ramsey Cartulary
published in the RoUs Series vsrith the earlier extents contained in Cotton
MS., Galba, E. x, and with the Hundred Rolls of Huntingdonshire and Cam
bridgeshire, will support the opinion expressed in the text.
' Seebohm, Village Community.
' The meaning of the expression may be gathered from the following ex
tracts from the Ramsey Cartulary, i. 358 : ' Die autem Jovis proxima ante
Pascha et die Jovis contra festum S" Benedicti quodcunque opus sibi fuerit
injunctum operabitur.' Cf 357 : 'Et si opus fuerit, faciet hayam in campis,
habentem longitudinem duarum perticarura, et allocabitur ei pro opere unius
diei. Et die quo carriare fenum debet, ducet unara carrectatam domi de
alio feno Abbatis, uel aliud carriagium cum carrecta faciet, si sibi fuerit in
junctum.' 361 : ' A gula autem Augusti usque ad festum Sancti Michaelis
qualibet septimana operabitur per unum diem integrum, qualecunque opus
sibi praecipiatur.' 365 ; ' Et operatur quaeUbet virgata a festo Sancti Michaelis

Chap. IIL] ZU (P^iff ^f tU BoVb, 299
It does not mean that the steward has a right to order the
peasant about like a slave, to tear him at pleasure from his
own work, and to increase his burden whenever he likes.
It means simply that such and such a virgater or cotter
has to appear in person or by proxy to perform his week-
work of three days, or two days, or four days, according to
the case, and that it is not settled beforehand what kind
of work he is to perform. He may have to plough, or to
carry, or to dig trenches, or to do anything else, according
to the bidding of the steward. A similar instance of un
certainty may be found in the expression ' without
measure ^ ' which sometimes occurs in extents. It would
be preposterous to construe it as an indication of work to
be imposed at pleasure. It is merely a phrase used to
suit the case when the work had to be done by the day and
not by a set quantity; if for instance, a man had to
plough so many times and the number of acres to be
ploughed was not specified. It is true that such vague
descriptions are mostly found in older surveys, but the
inference to be drawn from the fact is simply that
manorial customs were developing gradually from rather
indefinite rules to a minute settlement of details. There
is no difference in the main principle, that the dependent
usque ad festum Translationis Sancti Benedicti qualibet septimana tribus
diebus . . . quodcumque opus praeceptum fuerit ; videlicet, si flagellare opor-
tet, flagellabit infra villam viginti quatuor garbas de frumento et siligini, de
hordeo triginta garbas, de avena triginta garbas. Extra vUlam flagellabit de
framento viginti garbas, de avena viginti quatuor garbas. Nee exibit extra
hundredum ad flagellandum nisi ex gratia. Quodcunque aliud genus operis
facere debeat, operabitur tota die si ballivus voluerit ; praeterquam in bosco,
ubi si secare debeat, operabitur usque ad nonam ; et si pascere eum dominus
voluerit, operabitur usque ad vesperam. Si debeat spinas vel virgas coUi
gere, coUiget unum fesciculum, et portabit usque ad curiam pro opere unius
diei. In quadragesima autem nullum genus operis faciet ad cibum proprium
usque nonam nisi quod herciabit tota die.' It seems quite clear that the
lord has in some cases the choice between different kinds of work, but the
amount to be required is settled once for all. When we find in the Glaston
bury Inquisition of 1189 the sentence, ' operabitur quodcumque ei praeceptum
fuerit sicut neth,' it means evident, that the peasant's work, whatever it is,
is settled according to the standard of the neat's holding.
' Glastonbury Inqu. of 1189, p. 41 : ' Et herciat semel sine mensura aliqua
ei assignata cum hoc quod habet in carruca.'

300 (^tttraf (P^otrft Anb (gen(0. [Essay il
householder was not to be treated as a slave and had a
customary right to devote part of his time to the manage
ment of his own affairs.
The hold- Another point is to be kept well in view. The whole
th?popu- arrangement of a manorial survey is constructed with the
lation. holding as its basis. The names of virgaters and cotters
are certainly mentioned for the sake of clearness, but it
would be wrong to consider the duties ascribed to them as
aiming at the person. John Newman may be said to
hold a virgate, to join with his plough-oxen in the tillage
of twenty acres, to attend at three boon-days in harvest
time, and so forth. It would be misleading to take these
statements very literally and to infer that John Newman
was alone to use the virgate and to work for it. He was
most probably married, and possibly had grown-up sons to
help him ; very likely a brother was there also, and even
servants, poor houseless men from the same village or
from abroad. Every householder has a more or less con
siderable following {sequela)^, and it was by no means
necessary for the head of the family to perform all
manorial work in his own person. He had to appear
or to send one workman on most occasions and to come
with all his people on a few days — the boon-days namely.
The description of the precariae is generally the only
occasion when the extents take this into account, namely,
that there was a considerable population in the village
besides those tenants who were mentioned by name^
I need not point out, that the fact has an important
meaning. The medieval system, in so far as it rested on
the distribution of holdings, was in many respects more
' Placitoram Abbreviatio, p. 212 : 'Alia carta eiusdem eidem Elie facta et
heredibus suis de dicta bovata terre una cura dicto Rogero vUlano suo et secta
et sequela sua.' Ramsey Cart. i. 355 : ' Prior de Sancto Ivone habet in
gressum in una virgata terrae per Henricum de Kylevile, in qua tres sunt
mansiones, et unus pro caeteris facit servitium debitum manerio.'
'^ Ramsey Inqu., Cotton MSS., Galba, E. x. f 49 : ' Quicumque acceperit
pro mercede sua 18 denarios debet operari cum domino suo tribus diebus vel
dare unura denarium.' Cf Rot. Hundr. ii. 781, b: 'Servi: Dabit ad exen
nium contra Natale 6 panes . . . et venit ad prandium domini pro predicto ex-
ennio sexta manu si voluerit. '

Chap. IIL] ^^e Javm ^^0(em. 301
advantageous to the tenantry than to the lord. It was
superficial in a sense, and from the point of view of the
lord did not lead to a satisfactory result ; he did not get
the utmost that was possible from his subordinates. The
factor of population was almost disregarded by it, house
holds very differently constituted in this respect were
assumed to be equal, and the tenacity of custom pre
vented an increase of rents and labour-services in pro
portion to the growth of resource and wealth among the
peasants. Some attempts to get round these difficulties
are noticeable in the surveys : they are mostly connected
with the regulation of boon-works. But these exceptional
measures give indirect proof of the very insufficient manner
in which the question was generally settled.
The liabilities of the peasantry take the shape of pro- Stages
duce, labour, and money-rents. Almost in every manor arrange-
all three kinds of impositions are to be found split up into ment of
a confusing variety of customary obligations. It is out of
the question to trace at the present time, with the help of
fragmentary and later material, what the original ideas
were which underlie these complicated arrangements. But
although a reduction to simple guiding principles account
ing for every detail cannot be attempted, it is easy to per
ceive that chance and fancy were not everything in these
matters. The several duties are brought together so as to
form a certain whole, and some of the aims pursued in
the grouping may be perceived even now.
The older surveys often show the operation of a system Farm-
which is adapted by its very essence to a very primitive ^^^ ^™'
state of society; it may be called the farm-system, the
^ord farm being used in the original sense of the Saxon
feorm, food, and not in the later meaning of fixed rent,
although these two meanings appear intimately connected
in history. The farm is a quantity of produce necessary
for the maintenance of the lord's household during a
certain period : it may be one night's or week's or one fort
nights farm accordingly. A very good instance of the
system may be found in an ancient cartulary of Ramsey,

302 (^tttraf (^ovft Anb (genf0. c^ssay h.
now at the British Museum, which though compiled in the
early thirteenth century, constantly refers to the order of
Henry H's time. The estates of the abbey were taxed
in such a way as to yield thirteen full farms of a fort
night, and each of these was to be used for the mainten
ance of the monks through a whole month. The extension
of the period is odd enough, and we do not see its reason
clearly; it followed probably on great losses in property
and income at the time of Abbot Walter. However this
may be, the thirteen fortnights' farms were made to serve
all the year round, and to cover fifty-two weeks instead
of twenty-six. A very minute description of the single
farm is given as it was paid by the manor of Ayllington
(i. e. Elton). Every kind of produce is mentioned : flour
and bread, beer and honey, bacon, cheese, lambs, geese,
chicken, eggs, butter, &c. The price of each article
is mentioned in pence, and it is added, that four pounds
have to be paid in money. By the side of the usual
farm there appears a ' lent ' farm with this distinction,
that only half as much bacon and cheese has to be
given as usual, and the deficiency is to be made up by
a money payment. Some of the manors of the abbey
have to send a whole farm, some others only one half,
that is one week's farm, but all are assessed to pay sixteen
pence for every acre to be used as alms for the poor^.
This description may be taken as a standard one, and it
would be easy to supplement it in many particulars from
the records of other monastic institutions. The records of
St Paul's, London, supply information as to a distribution
of the farms at the close of the eleventh century, which
covered fifty-two weeks, six days, and five-sixths of a day^-
The firmae of St. Alban's were reckoned to provide for
the fifty-two weeks of the year, and one in advance *-
The practice of arranging the produce-rents according to
farms was by no means restricted to ecclesiastical manage-
' Cotton MSS., Galba, E. x. f 19. See Appendix xiv.
' Domesday of St. Paul's, Hale's Introduction, pp. xxxviii, xxxix.
^ Gesta Abbatum (Rolls Sen), 74. Ct Glastonbury Inqu. of 1 189, p. 145.

Chap. IIL] ZU SaVVX ^^^ttm, 3^3
ment ; it occurs also on the estates of the Crown, and was
probably in use on those of lay lords generally. Every
person a little conversant with Domesday knows the firmae
unius noctis, at which some of the royal manors were
assessed t In the period properly called feudal, that is
in the twelfth and thirteenth centuries, the food-revenue
had very often become only the starting-point for a
reckoning of money-rents. The St. Alban's farms, for
example, are no longer delivered in kind ; their equivalent
in money has taken their place. But the previous state
of things has left a clear trace in the division by weeks.
Altogether it seems impossible to doubt that the original
idea was to provide really the food necessary for con
sumption. One cannot help thinking that such practice
must have come from the very earliest times when a Saxon
or a Celtic chieftain got his income from the territory under
his sway by moving from one place to another with his
retinue and feeding on the people for a certain period.
This very primitive mode of raising income and consuming
it at the same time may occasionally strike our eye even
in the middle of the thirteenth century. The tenants of
the Abbot of Osulveston in Donington and Byker are
bound to receive their lord during one night and one day
when he comes to hold his court in their place. They find
the necessary food and beverage for him and for his men,
provender for his horses, and so forth. If the abbot does
not come in person, the homage may settle about a com
mutation of the duties with the steward or the sergeant
sent for the purpose. If he refuses to take money, they
must bring everything in kind ^.
' See, for instance, the beginning of the description of Dorsetshire.
' Exch. Q. R. Min. Ace. Bk. 587, T. P. R. 8109 : ' Sciendum quod tenentes
Abbatis de Osoluestone in Donington et Byker cum pertinentiis fuerant
semel in anno pro voluntate Abbatis ad curiam suam tenendum ibidem et
invenient eidem Abbati et toti familie sue quam secum duxerit omnia neces
saria sufficientia in advefltu suo per unum diem integrum et noctem sequen-
tem, veL noctem precedentem et diem sequentem in esculentis et poculentis
tam vino quam cervisia, feno et prebenda pro equis eorum et equis carucario-
rum salem querencium, una cura candela et ceteris costis omnimodis inter
necessaria computandis. Et si abbas non venerit facient finem cura celerario

304 (l^uvAi (pjoirft Anb (Btnt0. [Essay il
Decay of This is an exceptional instance : generally the farm has
system!" to ^^ ^^^^ t° the lord's residence, probably after a deduc
tion for the requirements of the manor in which it was
gathered. When it had reached this stage the system is
already in decay. It is not only difficult to- provide for
the carriage, but actually impossible to keep some of
the articles from being spoilt. Bread sent to Westminster
from some Worcestershire possession of the minster would
not have been very good when it reached its destina
tion. The step towards money-payments is natural and
necessary. Before leaving the food-rents we must take notice of one
or two more peculiarities of this system. It is obvious
that it was arranged from above, if one may use the ex
pression. The assessment does not proceed in this case
by way of an estimate of the paying or producing strength
of each unit subjected to it, i. e. of each peasant house
hold. The result is not made up by multiplying the
revenue from every holding by the number of such
holdings. The whole reckoning starts from the other end,
from the wants of the manorial administration. The re
quirements of a night or of a week are used as the standard
to which the taxation has to conform. This being the
case, the correspondence between the amount of the taxes
and the actual condition of the tax-payer was only a very
loose one. Manors of very different size were brought into
the same class in point of assessment, and the rough dis
tinctions between a whole farm and half-a-farm could not
follow at all closely the variety of facts in real life, even
when they were supplemented by the addition of round
sums of money.
si voluerit vel cum alii quem Abbas nomine suo miserit ad minus 20 soUdis.
Et si is qui nomine Abbatis missus ibidem fuit et finem recusauit, pro-
curabitur ut premittitur. Et si aliquid de necessariis in administrando de-
fuerit, omnes tenentes qui comestum contribuere debent die crastino in
plena curia super necessariorum defectu per senescallum calumpniabuntur et
graviter amerciabuntur. Et talis fuit consuetudo ab antiquo et habetur quo
libet anno pro certo redditu, et de quo Petrus de Thedingworth quondam
Abbas de Osoluestone et predecessores sui a tempore quo non extat memoria
sub forma predicta fuerunt seisiti.'

Chap. III.] BA^ovxxf^itmu ^g0^em. ' 305
These observations lead at once to important questions ; Assessment
how was the farm-assessment distributed in every single "°'^^'' ^^^
manor, and what was its influence on the duties of the system.
single householder? It seems hardly doubtful, to begin
with, that the food-rent changed very much in this respect.
Originally, when the condition of things was more or less
like the Osulvestone example, the farm must have been
the result cf co-operation on the part of all the householders
of a township, who had to contribute according to their
means to furnish the necessary articles. But the farm of
St. Paul's, London, even when it is paid in produce, is a
very different thing : it is the result of a convention with
the firmarius, or may be with the township itself in the
place of a firmarius ^. It depends only indirectly on the
services and payments of the peasantry. Part of the flour,
bread, beer, etc., may come from the cultivation of the
demesne lands ; another portion will appear as the proceed
of week-work and boon-work performed by the villains,
and only one portion, perhaps a very insignificant one, will
be levied directly as produce. In this way there is no
break between the food-rent system and the labour-system.
One may still exist for purposes of a general assessment
when the other has already taken hold of the internal
arrangement of the manor.
Most of our documents present the labour arrange- Labour-
ment in full operation. Each manor may be regarded ^^'^I'^
as an organised group of households in which the central
body represented by the lord's farm has succeeded in
subordinating several smaller bodies to its directing in
fluence. Every satellite has a movement of its own, is
revolving round its own centre, and at the same time it is
attracted to turn round the chief planet, and is carried
away in its path. The constellation is a very peculiar one
and most significant for the course of medieval history.
Regarded from the economic standpoint it is neither a
system of great farming nor one of small farming, but
' See about this point, Hale's Introduction. It is generaUy very good on
the subject of the farm.
VOL. I. X

3o6 • (Bttvae (|E)orft Anb (Ben^e. [essayh.
a compound of both. The estate of the lord is in a sense
managed on a great scale, but the management is bound
up with a supply and a distribution of labour which depend
on the conditions of the small tributary households. It
would be impossible now-a-days to say for certain how
much ofthe custoraary order of week- work and boon-work
was derived from a calculation of the requirements of the
manorial administration, and how much of it is to be re
garded as a percentage taken from the profits of each
individual tenant ^ Both elements probably co-operated
to produce the result : the operations performed for the
benefit of the lord were ordered in a certain way partly
because so many acres had to be tilled, so much hay and
corn had to be reaped on the lord's estate; and partly
because the peasant virgaters or cotters were known to
work for themselves in a certain manner and considered
capable of yielding so much as a percentage of their working
power. But although we have a compromise before us in
this respect, it must be noted that the relation between the
parts and the whole is obviously different under the system
of labour services from what it was under the farm-system.
It has been pointed out that the food-rent arrangement
was imposed from above without much trouble being taken
to ascertain the exact value and character of the tributary
units subjected to it This later element is certainly very
prominent in the customary labour-system, which on the
whole appears to be constructed from below. Is it neces
sary to add that this second form of subjection was by
no means the lighter one ? The very differentiation of the
burden means that the aristocratical power of the landlord
has penetrated deep enough to attempt an exact evaluation
of details.
Money- I have had occasion so many times already to speak of
system. the process of commutation, that there is no call now to
explain the reasons which induced both landlords and
peasants to exchange labour for money-rents. I have only
I Domesday of St. Paul's, 21 ; ' Potest wainagium fieri cum tribus caruciis
octo capitiim cum consuetudinibus viUate.'

Chap. III.] QHoneg (^en^0 §^0ttm, 307
to say now that the same remark which applied to the
passage from produce ' farms ' to labour holds good as to the
passage from labour to money payments. There is no
break between the arrangements. In a general way the
money assessment follows, of course, as the third mode of
settling the relation between lord and tenant, and we may
say that rentals are as much the rule from the fourteenth
century downwards as custumats are the rule in the
thirteenth and earlier centuries. But if we take up the
Domesday of St. Paul's of 133a, or the Glastonbury Inquest
of 1 1 89, or even the Burton Cartulary of the early twelfth
century, in every one of these documents we shall find a
great number of rent-paying tenants ^, and even a greater
number of people fluctuating, as it were, between labour
and rent. In some cases peasants passed directly from the
obligation of supplying produce to the payment of corre
sponding rents in money. The gradual exemption from
labour is even more apparent in the records. It is
characteristic that the first move is generally a substitution
of the money arrangement with the tacit or even the ex
pressed provision that the assessment is not to be con
sidered as permanent and binding^. It remains at the
pleasure of the lord to go back to the duties in kind. But
although such a retrogressive movement actually takes
place in some few cases, the general spread of money
payments is hardly arrested by these exceptional in
stances ^
One more subject remains to be discussed. Is there
' The Templar's Book of 1185 at the Record OfSce (Q. R. Misc. Books,
N. 16) is already a rental in substance.
' Glastonbury Inqu. of 1189, p. 117 : ' Nigellus capellanus tenet unam vir
gatam, sed iUa virgata non solet ad operacionem redigi. Cum dominus volu
erit operabitur sicut alie.' Rot. Hundr. ii. 815, a : ' . . . dabit 8 solidos per
annum pro operibus suis qui solidi poterunt mutari in aliud servicium ad
valorem pro voluntate domini.'
' Glastonbury Inqu. of 1189, p. 29 : ' G. de P. (tenet) unum mesuagium et
tres acras et dimidiam pro 2 solidis et facit sicut homines de Mera quando
sunt ad gabulum. Hoc tenementum non solet esse ad opus.' 116 : ' Leviva
vidua tenet dimidiam hidam ; unam virgatam tenet eodem servitio ; aUam tenet
pro gabulo et non potest ad operationem poni sicut alia.'
X 3

3o8 (guraf (5E)orft Anb (Fen(0. [Essay ii.
Influence in the surveys any marked difference between different
dLtrnction classes of the peasantry in point of rural duties ?
on the dis- An examination of the surveys will show at once that
duties."" ° the free and the servile holdings differ very materially as
to services, quite apart from their contrast, in point of
legal protection and of casual exactions such as marriage
fines, heriots, and the like. The difference may be either
in the kind of duties or in their quantity. Both may be
traced in the records. If we take first the diversities in
point of quality we shall notice that on many occasions the
free tenants are subjected to an imposition on the same
occasion as the unfree, but their mode of acquitting them
selves of it is slightly different — they have, for instance,
to bring eggs when the villains bring hens. The object
cannot be to make the burden lighter ; it amounts to much
the same, and so the aim must have been to keep up the
distinctions between the two classes. It is very common to
require the free tenants to act as overseers of work to be
performed by the rest of the peasantry. They have to go
about or ride about with rods and to keep the villains in
order. Such an obligation is especially frequent on the
boon-days {precariae), when almost all the population of
the village is driven to work on the field of the lord.
Sometimes free householders, who have dependent people
resident under them, are liberated from certain pay
ments ; and it may be conjectured that the reason is to be
found in the fact that they have to superintend work per
formed by their labourers or inferior tenants ^. All such
points are of small importance, however, when compared
with the general opposition of which I have been speaking
several times. The free and the servile holdings are

1 Bury St. Edmund's Reg., Harl. MSS. 3977, f. 82, d: 'Omnes liberi et
non liberi dabunt festivales exceptis iUis liberis qui habent residentes sub
Ulos.' Glastonbury Cart., Wood MSS. i. f 176, b : ' Abbas et conventus re-
miserant R. de W. . . . omnia carriagia . . . nee non et illas custodias quae
predictus R. et antecessores sui personaliter facere consueverunt cum virga
sua super bederipas ipsoram . . . et super arraras precarias que ei fieri de
bent in manerio de Pultone.'

Chap. III.] §xu Anb ^^tviU ^enemen^0. 309
chiefly distinguished by the fact that the first pay rent and
the last perform labour.
Whenever we come to examine closely the reason under- Free and
lying the cases when the classification into servile and free f^X''^^
¦' ° duties as
is adopted, we find that it generally resolves itself into a rent and
contrast between those who have to serve, in the original
sense of the term, and those who are exempted from
actual labour-service. Being dependent nevertheless, these
last have to pay rent. I need not repeat that I am
speaking of main distinctions and not of the various details
bound up with them. In order to understand thoroughly
the nature of such diversities, let us take up a very
elaborate description of duties to be performed by the
peasants in the manor of Wye, Kent, belonging to the
Abbey of Battle ^. Of the sixty-one yokes it contains thirty
are servile, twenty-nine are free, and two occupy an inter
mediate position. The duties of the two chief classes of
tenants differ in many respects. The servile people have
to pay rent and so have the free, but while the first con
tribute to make up a general payment of six pounds, each
yoke being assessed at seven shillings and five-pence, the
free people have to pay as much as twenty-three shillings
and seven-pence per yoke. Both sets have to perform
ploughings, reapings, and carriage duties, but the burden
of the servile portion is so much greater in regard to the
carriage-work, that the corresponding yokes sometimes
get their very name from it, they are juga averagiantia,
while the free households are merely bound to help a
few times during the summer. Every servile holding has
a certain number of acres of wood assigned to it, or else
corresponding rights in the common wood, while the free
tenants have to settle separately with the lord of the
manor. And lastly, the relief for every unfree yoke is
fixed at forty pence, and for every free one is equal to the
annual rent. This comparison of duties shows that the
peasants called free were by no means subjected to
very light burdens : in fact it looks almost as if they were
' Custumals of Battle Abbey (Camd. Soc), p. 122.

3IO (gutraf ^oirft ani (genf0. [Essayii.
more heavily taxed than the rest Still they were ex
empted from the most unpopular and inconvenient labour-
services. Altogether, the study of rural work and rents leads to the
same conclusion as the analysis of the legal characteristics
of villainage. The period from the Conquest onwards
may be divided into two stages. In later times, that is
from the close of the thirteenth century downwards, the
division between the two great classes of tenants and
tenements, a contrast strictly legal, is regulated by the
material test of the certainty or uncertainty of the service
due, and the formal test of the mode of conveyance. In
earlier times the classification depends primarily on the
economic relation between the manorial centre and the
tributary household, labour is deemed servile, rent held to
be free. It is only by keeping these two periods clearly
distinct that one is enabled to combine the seemingly
conflicting facts in our surveys. If we look at the most
ancient of these documents, we shall have to admit that
a rent-paying holding is free, nevertheless it would be
wrong to infer that when commutation became more or
less general, classification was settled in the same way.
A servile tenement no longer became free because rent
was taken instead of labour ; it was still held ' at the will
of the lord,' and conveyed by surrender and admittance.
When all holdings were fast exchanging labour for rent,
the old notions had been surrendered and a new basis for
classification found in those legal incidents just mentioned.
The development of copyhold belongs to the later period,
copyhold being mostly a rent -paying servile tenure.
Again, if we turn to the earlier epoch we shall have to
remember that the contrast between labour and rent is
not to be taken merely as a result of commutation. Local
distinctions are fitted on to it in a way which cannot be
explained by the mere assumption that every settlement
of a rent appeared in the place of an original labour obli
gation. The contrast is primordial, as one may say, and
based on the fact that the labour of a subject appears

Chap. HI.] fxu Anb Qjlnf^ee ^emce0. 311
directly subservient to the wants and arrangements of
the superior household, while the payment of rent severs
the connexion for a time and leaves each body to move
in its own direction till the day when the tributary has
to pay again.
There can be no doubt also that the more ancient Difference
surveys disclose a difference in point of quantity between between the
free and servile holdings, and this again is a strong argu- impositions
raent for the belief that free socage must not be considered unfree
merely as an emancipated servile tenancy. Where there population.
has been commutation we must suppose that the labour
services cannot have been more valuable than the money
rent into which they were changed. The free rent into
which labour becomes converted is nothing but the price
paid for the services surrendered by the lord. It must
have stood higher, if anything, than the real value of
the labour exchanged, because the exchange entailed a
diminution of power besides the giving up of an economic
commodity. No matter that ultimately the quit-rents
turned out to the disadvantage of the lord, inasmuch as
the buying strength of money grew less and less. This
was the result of a very long process, and could not be
foreseen at the time when the commutation equivalents
were settled. And so we may safely lay down the general
rule, that when there is a conspicuous difference between
the burdens of assessment of free and unfree tenants, such
a difference excludes the idea that one class is only an eman
cipated portion of the other, and supposes that it was from
the first a socially privileged one. The Peterborough
Black Book, which, along with the Burton Cartulary,
presents the most curious instance of an early survey,
describes the services of socmen on the manors of the
abbey as those of a clearly privileged tenantry ^. The
' Black Book of Peterborough (Camden Ser.), 164 : ' In Scotere et
Scaletoys sunt undecim carrucatae ad geldum Regis et 24 plenarii viUani
. . . Plenarii villani operantur duobus diebus in ebdomada . . . Et ibi sunt 29
sochemanni et operantur uno die in ebdomada per totum annum et in Augusto
duobus diebus. Et isti ¦viUani et omnes sochemanni habent 21 carrucas et
omnes arant una vice ad hjnrernage et una ad tremeis.'

312 (Buraf (^otrft Anb (gtnts,
interesting point is, that these socmen are even subjected
to week-work and not distinguishable from villains so far
as concerns the quality of their services. Nevertheless the
contrast with the villains appears throughout the Cartulary
and is substantiated by a marked difference in point of
assessment : a socman has to work one or two days in the
week when the villain is made to work three or four.
Three main points seem established by the survey of
rural work and rents.
I. Notwithstanding many vexatious details, the imposi
tions to which the peasantry had to submit left a consider
able margin for their material progress. This system of
customary rules was effectively provided against general
oppression. 3. The development from food-farms to labour organ
isation, and lastly to money-rents, was a result not of one
sided pressure on the part of the landlords, but of a series
of agreements between lord and tenants.
3. The settlement of the burdens to which peasants were
subjected depended to a great extent on distinctions as to
the social standing of tenants which had nothing to do
with economic facts.

CHAPTER IV.
THE LORD, HIS SERVANTS AND FREE TENANTS.
Descriptions of English rural arrangements in the age Medieval
we are studying always suppose the country to be divided "sfem.
into manors, and each of these manors to consist of
a central portion called the demesne, and of a cluster of
holdings in different tributary relations to this central
portion. Whether we take the Domesday Survey, or the
Hundred Rolls, or the Custumal of some monastic institu
tion, or the extent of lands belonging to some deceased
lay lord, we shall again and again meet the same typical
arrangement. I do not say that there are no instances
swerving from this beaten track, and that other arrange
ments never appear in our records. Still the general
system is found to be such as I have just mentioned, and
a very peculiar system it is, equally different from the
ancient tatifundia or modern plantations cultivated by
gangs of labourers working on a large scale and for distant
markets, from peasant ownership scattered into small and
self-dependent households, and even from the conjunction
between great property and farms taken on lease and
managed as separate units of cultivation.
The characteristic feature of the medieval system is the
close connexion between the central and dominant part
and the dependent bodies arranged around it We have
had occasion to speak in some detail of these tributary
bodies — it is time to see how the lord's demesne which
acted as their centre was constituted.
Bracton mentions as the distinguishing trait of the The home-
demesne, that it is set aside for the lord's own use, and ^'™'

314 ZU &ovb—^^vx>Ant0—fvuZ^nAnt0. [essayii.
ministers to the wants of his household ^. Therefore it is
sometimes called in English ' Board Lands.' The defini
tion is not complete, however, because all land occupied by
the owner himself must be included under the name of
demesne, although its produce may be destined not for his
personal use, but for the market. ' Board lands ' are only
one species of domanial land, so also are the ' Husfelds '
mentioned in a charter quoted by Madox ^- This last
term only points to its relation to the house, that is the
manorial house. And both denominations are noteworthy
for their very incompleteness, which testifies indirectly to
the restricted area and to the modest aims of domanial
cultivation. Usually it lies in immediate connexion with
the manorial house, and produces almost exclusively for
home consumption.
This is especially true as to the arable, which generally
forms the most important part of the whole demesne land.
There is no exit for a corn trade, and therefore everybody
raises corn for his own use, and possibly for a very
restricted local market. Even great monastic houses hold
only 300 or 400 acres in the home farm ; very rarely the
number rises to 600, and a thousand acres of arable in
one manor is a thing almost unheard of*. Husbandry
on a large scale appears only now and then in places where
sheep-farming prevails, in Wiltshire for instance. Ex
ceptional value is set on the demesne when fisheries are
connected with it or salt found on it *.

' Bracton, iv. 9. 5, f 263 : ' Est autem dominicum quod quis habet ad
mensam suam et proprie, sicut sunt Bordlands Anglice.'
^ Madox, History of the Exchequer, i. 407 : ' Concessisse unam virgatam
terrae in Husfelds, scUicet 20 acras uno anno et 20 acras alio.'
' In Beauchamp, a manor of St. Paul's, London, the home farm is one of
the largest. Domesday of St. Paul's, 28 : 'In dominico tam de wainagio
veteri quam de novo essarto 676 acre terre arabilis et de prato 18 acre et de
pastura 8 acras [sic] et in magno bosco bene vestito quinquies 20 acre et in
duabus granis Dorile et Langele 16 acras.'
¦* As to the economic aspects of the subject, see Thorold Rogers,
History of Agriculture and Prices ; Ashley, Introduction to the Study of
Economic History; and Cunningham, Growth of Industry and Commerce
.(2nd ed.).

Chap. IV] ZU ®^tnt0M, 3^5
The following description of Bockyng in Essex ^, a Bockyng,
manor belonging to the Chapter of Christ Church, Canter- ^*^'''
bury, may serve as an example of the distribution and
relative value of demesne soil. The cartulary from which
it is drawn was compiled in 1309.
The manorial house and close cover five acres. The
grass within its precincts which may serve as food for
cattle is valued at Sd. a year. Corn is also sold there to
the value of i2,d. a year, sometimes more and sometimes
less, according to the quantity sown. The orchard pro
vides fruit and vegetables worth 13J. 4^. a year ; the duty
levied from the swine gives 6d.
The pigeon-house is worth 4^.
Two mills, 7/. IJ. 8^.
A fishery, i2d.
A wood called Brekyng Park, containing 480 acres, and
the brushwood there is worth 40J.
Grass in the wood i2d., because it grows only in a few
places. Pannage duty from the swine, los.
Another wood called Le Flox contains 10 acres, and the
brushwood is worth 6d.
Pannage from the swine, 6d.
Grass, 6d.
Arable, in all fields, 510 acres, the acre being assessed at
6d. all round.
Each plough may easily till one acre a day, if four horses
and two oxen are put to it.
Two meadows, one containing eight acres, of which
every single acre yields 4s. a year ; the other meadow
contains seven acres of similar value.
Pasture in severalty — 30 acres, at I2d. an acre.
Ofthese, 16 acres are set apart for oxen and horses, and
14 for cows.
Some small particles of pasture leased out to the tenants,
4s. The prior and the convent are lords of the common
> Hari. MSS. 1006, f 2.

3i6 ZU^<ivb—§tvvAnt0—Sv^^ZtnAnt0, [Essayii.
pasture in Bockyng, and may send loo sheep to these
commons, and to the fields when not under crop. Value
30J. As important an item in the cultivation of the home
farm as the soil itself is afforded by the plough-teams.
The treatises on husbandry give very minute observations
on their composition and management. And almost
always we find the manorial teams supplemented by the
consuetudines villae, that is by the customary work per
formed on different days by the peasantry^. As to this
point the close connexion between demesne and tributary
land is especially clear ; but after all that has been said
in the preceding chapter it is hardly necessary to add
that it was not only the ploughing-work that was carried
on by the lord with the help of his subjects.
the As a matter of fact, villages without a manorial demesne
and thT °*' without some dependence from it are found only ex-
village, ceptionally and in those parts of England where the free
population had best kept its hold on the land, and where
the power of the lord was more a political than an econo
mical one (Norfolk and Suffolk, Lincoln, Northumberland,
Westmoreland, etc.^). And there are hardly any cases at
all of the contrary, that is of demesne land spreading over
the whole of a manor. Tillingham, a manor of St. Paul's,
London, comes very near it * : it contains 300 acres as
home farm, and only 30 acres of villain land. But as a
set-off, a considerable part of the demesne is distributed to
small leaseholders.
' Ramsey Cart. (Rolls Series), i. 282 : ' Quae culturae coli possunt suffi-
cienter cura tribus carucis propriis et consuetudine carrucarura ville et duabus
precariis carucis (corr. carucarum?), quae consuetudo ad valentiam trium
carucarum aestimatur.' Domesday of St. Paul's, 13, 14 : ' Potest ibidem fieri
wainagium cum 5 carucis quarum tres habent 4 boves et 4 equos et due
singule 6 equos cum consuetudinibus viUate propter (corr. praeter?) domini
cum de Luffehale et alia quae remota sunt, que tamen sunt in dispositione
firmarii.' Cf. Glastonbury Inqu. of 1189, pp. 28, 107.
^ As an instance. Bury St. Edmund's Register, Harl. MSS. 743, f 194 :
' (Bucham) abbas S" Edmundi capitalis dominus . . . tenet in eadem villa
preter homagium liberoram nihil.'
' Domesday of St. Paul's, 58.

Chap. IV] ®eme0ne Anb (^xiknA^i. 317
It must be noted that, as a general rule, the demesne
arable of the manor did not lie in one patch apart from
the rest, but consisted of strips intermixed with those of
the community^. This fact would show by itself that
the original system, according to which property and hus
bandry were arranged in manorial groups, was based on a
close connexion between the domanial and the tributary
land. We might even go further and point out that the
mere facilities of intercourse and joint work are not sufficient
to account for this intermixture of the strips of the lord
and ofthe homage. The demesne land appears in fact as
a share in the association of the village, a large share but
still one commensurate with the other holdings. In two
respects this subjection to a higher unit must necessarily
follow from the intermixture of strips: inasmuch as the
demesne consists of plots scattered in the furlongs of the
township, it does not appropriate the best soil or the best
situation, but has to gather its component parts in all the
varied combinations in which the common holdings have to
take theirs. And besides this, the demesne strips were
evidently meant to follow the same course of husbandry as
the land immediately adjoining them, and to lapse into
undivided use with such land when the ' defence ' season
was over. Separate or private patches exempted from the
general arrangement are to be found on many occasions,
but the usual treatment of demesne land in the thirteenth
century is certainly more in conformity with the notion
that the lord's land is only one of the shares in the higher
group of the village community.
The management of the estate, the collection of revenue, ' Minis-
the supervision of work, the police duties incumbent on the '^"^ "''¦
manor, etc., required a considerable number of foremen and
workmen of different kinds ^. Great lords usually confided
'¦ Eynsham Inqu., Chapter of Christ Church, Oxford, N. 27, t 5, a : ' Ro
bertus Clement . . . tenet de dominicis superius mensuratis dum domino
placet unam selionem apud Weylond atte Wyche, unam selionem apud
Blechemanfurlong, tres seliones in Wellefurlong, et unam selionem apud
Groueacres pro 11 soUdis per annum.'
" It is well known that the second book of Fleta contains a sketch of the

3i8 ZU^o^b—^itvAnt0—§tuZtnAnt0* [essayil
the general supervision of their estates to a seneschal,
steward or head manager, who had to represent the lord
for all purposes, to preside at the manorial courts, to audit
accounts, to conduct sworn inquests and extents, and to
decide as to the general husbandry arrangements. In
every single manor we find two persons of authority. The
bailiff or beadle was an outsider appointed by the lord,
and had to look to the interests of his employer, to collect
rents and enforce duties, to manage the home farm, to take
care of the domanial cattle, of the buildings, agricultural
implements, etc. These functions were often conferred
by agreement in consideration of a fixed rent, and in this
case the steward or beadle took the name oi firmarius"^.
By his side appears the reeve, or praepositus, nominated
from among the peasants of a particular township, and
mostly chosen by them ^. Manorial instructions add some
times that no villain has a right to hold aloof from such
an appointment, if it is conferred on him *. The reeve
acts as the representative of the village community, as
well in regard to the lord as on public occasions. He
must, of course, render help to the steward in all the
various duties of the latter. The reeve has more especially
to superintend the performance of labour imposed on the

functions of manorial ofScers. In thirteenth-century MSS. we find also
a special tract on the matter entitled de Senescalcia. See Cunningham,
Growth of Industry and Commerce (2nd ed.), p. 222. Let it be understood
that I do not attempt an exhaustive survey of the subject, but only a general
indication of its bearings.
' Domesday of St. Paul's, 122 ; forms of agreement by which the manors
were let to farm in the twelfth century : ' Haec est conventio inter capitulum
Lundoniensis ecclesiae beati Pauli et Robertum filium Alwini sacerdotis.
Capitulum concedit ei Wicham manerium suum ad firmam quamdiu vixerit
et inde bene servierit. Primo quidem anno pro 58 solidis et \d. et pro una
parva firma panis et cervisiae cum denariis elemosine. Deinceps vero
singulis annis pro duabus firmis brevibus panis et cervisiae.'
^ Exch. Q. R. MisceU. ; ' Consuetudines de Aysle : memorandum quod
homagium debet eligere prepositum et dominus manerii potest eum retinere.
. . . Et memorandum quod homines debent habere pastorem ovilis per elec-
tionem curie.'
^ The duty of serving as reeve is therefore often ti:eated as one of the
characteristic marks of serfdom ; e.g. Cambr. Univ., Gg. iv. 4, f 26.

Chap. IV.] ' {jKlxni0t^KiA2i0* 319
peasantry. Manorial ploughings, reapings, and the other
like operations are conducted by him, sometimes with the
help of the free tenants in the place. Of the public duties
of the reeve we have had occasion to speak. Four men,
acting as representatives of the village, accompany him.
Next after the reeve comes, on large estates, the messor,
who takes charge of the harvest, and sometimes acts as
collector of fines imposed for the benefit of the lord ^. The
akermanni or carucarii are the leaders of the unwieldy
ploughs of the time'', and they are helped by a set of
drivers and boys who have to attend to the oxen or horses ^-
Shepherds for every kind of cattle are also mentioned *, as
well as keepers and warders of the woods and fences ^.
In the Suffolk manors of Bury St. Edmund's we find the
curious term turard to designate a person superintending
the hay harvest ^.
By the side of a numerous staff busy with the economic
management of the estate, several petty officers are found
to be concerned with the political machinery of the manor.
The duty to collect the suitors of the hundred and of the
county court is sometimes fulfilled by a special 'turn-
bedellus'.' A 'vagiator' (vadiator?) serves writs and dis
trains goods for rents *- The carrying of letters and orders
is very often treated as a service imposed on particular
tenements. It must be noted that sometimes all these
duties are intimately connected with those of the husbandry
Harl. MSS. 1006, f. 18 : ' Debet esse messor ad frumentum et amercia-
fflenta domini coUigendum.'
' Shaftesbury Inqu., Harl. MSS. 61, f 60; 'Arator. . . debet invenire
omnia instramenta aratri ante rotas.'
' Ibid., f 54: 'Bubulci et gadince.' Glastonbury Inqu. ofi 189: 'Petras
bovarius . . . custodit boves domini et vadit ad aratmm.'
' 'Hereward,' Glastonbury Inqu., 24, 105, etc. ; Domesday of St. Paul's,
53- ' Cartul. of Battle (Camden Ser.), f 39, b : ' wodeward.'
' Bury St. Edmund's Reg., Cambr. Univ., Gg. iv. 4, f 322, a : 'Ad istud
pertinet tenementum falcacio claustri sed cum falce lurardi.'
Glastonbury Inqu. of 1189, p. 36: 'Reginaldus thernebedellus tenet
dimidiam ¦virgatam terre et summonet homines ad comitatum et hundre
dum.' ' Ibid., 7 ; cf 156.

320 zu Botb—^^vx>Ant0—§vuZ^nAnt0. [essayii.
system and imposed on all the officers of the demesne
who own horses ^.
A third category is formed by the house-servants, who
divide among themselves the divers duties of keeping
accounts, waiting on the lord personally, taking charge of
the wardrobe, of the kitchen, etc. The military system
and the lack of safety called forth a numerous retinue of
armed followers and guards. All-in-all a mighty staff of
ministeriales, as they were called in Germany, came into
being. In England they are termed sergeants and
servants, servientes. In Glastonbury Abbey there were
sixty-six servants besides the workmen and foremen
employed on the farm ^. Such a number was rendered
necessary by the grand hospitality of the monastery, which
received and entertained daily throngs of pilgrims. In
Bury St. Edmund's the whole staff was divided into five
departments, and in each department the employments
were arranged according to a strict order of precedence ^.
Formation The material for tlje formation of this vast and impor
tant class was supplied by the subject population of the
estates. The Gloucester manorial instruction enjoins the
stewards to collect on certain days the entire grown-up
population and to select the necessary servants for the
different callings. It is also enacted that the men should
not be left without definite work, that in case of necessity
they should be moved from one post to the other *, etc.
' Ely Cart., Cotton MSS., Claudius, C. xi, f 15, d : ' Debet namiare cum
bedello et ceteris avermannis ' (men provided with horses). Glastonbury
Inqu. of 1 189, p. 31 : ' Robertus de Eadwic sequitur hundredum et comitatum
ad suum costum . . . Custodit preces arature et messis et debet adjuvare ad
namia capienda infra hundredum et est quietus de pannagio.'
'' Glastonbury Cart., Wood MSS., i. £ 92, 93; Corapoti of Nicholas de
Wedergrave, who had charge of the monastery from the 21st of November,
16 Edward 11, tUl the 12th of March, 16 Edw. II, as to the liberaciones et
conredia servientium : ' Et quod retinuit et necessarie oportuit retinere in
eadem abbathia 60 ministros et servientes pro hospitalitate et aliis obsequus
faciendis in eadem abbathia.'
' Bury St. Edmund's Register, Harl. MSS., 743, i. 260; 'Scriptum Jo
hannis Northwold abbatis de quinque servanciis ' (a. d. 1294) ; f 260, d :
' . . . de minutis officiis.'
• Gloucester Cart. (Rolls Ser.), iu. 213, 214 : ' Hoc intellecto quod quando-

of the class.

Chap. IV] %mb BAUuVtV0, 321
The requirements of the manorial administration and of
the lord's household opened an important outlet for the
village people. Part of the growing population thus found
employment outside the narrow channel of rural arrange
ments. The elder or younger brothers, as it might be,
took service at the lord's court. The husbandry treatises
of the thirteenth century go further and mention hired
labourers as an element commonly found on the estate'.
We find, for instance, an elaborate reckoning of the work
performed by gangs of such labourers hired for the har
vest 1. In documents styled ' Minister's Accounts ' we
may also find proof that from the thirteenth century
downwards the requirements of the lord's estate are some
times met by hiring outsiders to perform some necessary
kind of work. These phenomena have to be considered
as exceptional, however, and in fact as a new departure.
The officers and servants were remunerated in various Remunera-
ways. Sometimes they were allowed to share in the ci°ss°
profits connected with their charges. The swine-herd of
Glastonbury Abbey, for instance, received one sucking-
pig a year, the interior parts of the best pig, and the tails
of all the others which were slaughtered in the abbey^.
cumque placuerit loci ballivo amoveantur ab uno loco usque ad alium ad
commodum domini infra terminum, salvis eisdem liberationibus et stipendiis
prius pro^visis. Nee aliquis admittatur ad servitium domini sine saluis plegiis
de fideliter serviendo et de omittenda satisfaciendo. Et moraturi tunc prae-
muniantur quod sibi provideant ad morandum . . . Item quod nullus famulus
sit in curia cui plenum non deputetur officium. Ita quod si unum officium
suo statui sit insufficiens in alio suppleatur defectus.'
'¦ Merton CoUege MSS., 91, f 153 : ' Coment hom deyt alower oueraygnes
en feyneson e en aust. Vous purrez bien auer sarcler 3 acres pur un dener
e auer fauche lacre de pre pur 4 deners. . . . E vous devez sauer qe 5 homraes
poent bien Iyer et syer 2 acres le iour checune manere de ble qe luns plus
e lautre mens. . . E la ou les 4 prenent 7 d. ob. le iour e le quint pur ceo qil
est lyour le iour 2 d., donqe devez donner pur lacre 4 den. E pur ceo qen
mouz de pays i ne sevent nient sier par lacre si poet hom sauer par siours
e par les jumees ceo qil fount. Mesqe vous reteignez les siours par les eez
ceo est a sauer qe 5 hommes ou 5 femmes le quel qe vous voudrez que home
apele 5 home font un eez, e 25 hommes font 5 eez, e poent 25 hommes
shyer e lier 10 acres le iour entiers ouerables. . . . E si il accunte plus de
jurnees qe ne fiert solon ceste acounte, si ne lor deuez pas alower.'
' Glastonbury Inqu. of 1189, 16, 17.
VOL. L Y

322 ZU Botb—^itvAnt0—Svu ZtnAnf0. lessay il
The chief scullion {scutetlarius) had a right to all remnants
of viands, — but not of game, — to the feathers and the bowels
of geese ^ Again, all the household and workmen con
stantly employed had certain quantities of food, drink, and
clothing assigned to them ^. Of one of the Glastonbury
clerks we hear that he received one portion {liberacio) as
a monk and a second as a servant, and that by reason of
this last he was bound to provide the monastery with a
goldsmith^ .
Those of the foremen and labourers of estates who did
not belong to the immediate following of the lord and
did not live in his central court received a gratification of
another kind. They were liberated from the labour and
payments which they would have otherwise rendered from
their tenements *. The performance of the specific duties
' Glastonbury Inqu. of 1 189, 14, 15. Cf 13 : ' Ernaldus C. tempore
episcopi Henrici habuit de quolibet preposito et quolibet firmario unum
denarium ad natale pro taliis quas inveniet eis et morsuras candelarum.'
' Bury St. Edmund's Registrum Album, Cambr. Univ., Ee. iii. 60, £ 169, a :
' Isti habent biscum panem . . . grangiator, bedellus, lurard.' Glastonbury
Cart., Wood MSS., x, f 126 : ' Et quod habeat . . . quolibet anno de tota
vita sua unam robam de secta armigerorum nostroram et unam robam com-
petentem vel duas marcas pro uxore sua.' f 142: ' Concessisse Thome de
Panis redditum unius robe annuatim recipiendi apud Glastoniam de secta
armigerorum nostrorum videlicet quartam partem panni cum furrura agnina
precii 2 solidorum uel duos solidos et si aliquo anno armigeris nostris robas
non dederimus, volumus et concedimus . . . capiat illo anno ... 20 solidos.'
f. 146, d : ' . . . tres panes, videlicet unum panem uocatum priestlof et alteram
panem uocatum bastardlof et tercium panem uocatum seriauntlof de panetria
predicti abbatis. . . . Et redditum unius robe . . . videUcet quartam partem
unius panni de lecta officiariorum cum furrara agnina. Et pro predicta
Aluecia uxore sua unam robam videlicet et octo virgas panni de secta secun-
dorum clericorum cum furrura de scurellis.'
^ Glastonbury Inqu. of 1189, p. 3. Cf 16: 'Vinitor habet talem libera-
cionem sicut prepositus grangie.'
¦• Cellarer's Register of Bury St. Edmund's, Cambr. Univ., Gg. iv. 4,
f. 49, b : ' Inquisitio generalis dicit quod omnes gersumarU debent esse pre
positi vel heywardi ad voluntatem domini nee se excusare possint racione
alicuius tenementi ut patet in curia ibidem tenta anno regis Henrici 54'°.
Et notandum quod quicumque est prepositus aule de Bertone magna habebit
infra manerium unum equum sumptibus domini cum una stotte et dimi
diam acram ordei de meliore post terram compostatam et habebit stipulam
pisei vel fabarura sine diminucione. Et si tenet duas terras custumarias
plenas erit quietus pro operibus suis pro una terra et habebit ad natale

Chap. IV] ' (^XnX0ttHAk0: 3^3
of administration took the place of the ordinary rural work
or rent, and in this way the service of the lord was feudal
ised on the same principle as the king's service — it was
indissolubly connected with land-holding.
In manorial extents we come constantly across such Import-
exempted tenements conceded without any rural obliga- f^^j^. ^
tions or with the reservation of a very small rent. It is teriality.'
important to notice, that such exemptions, though tem
porary and casual at first, were ultimately consolidated by
custom and even confirmed by charters. A whole species
of free tenements, and a numerous one, goes back to such
privileges and exemptions granted to servants ^. And so
this class of people, in the formation of which unfree ele
ments are so clearly apparent, became one of the sources
in the development of free society. Such importance and
success are to be explained, of course, by the influence of
this class in the administration and economic management
of the estates belonging to the secular and ecclesiastical
aristocracy. It is very difficult at the present time to
realise the responsibility and strength of this element.
We live in a time of free contract, credit, highly mobilised
currency, easy means of communication, and powerful
political organisation. There is no necessity for creating
a standing class of society for the purpose of mediating
between lord and subject, between the military order
and the industrial order. Every feature of the medieval
system which tended to disconnect adjoining localities,
to cut up the country into a series of isolated units,
domini i den. ad oblacionem, die purificacionis unam candelam precu quar-
terii et ad camipriuium debet participari una perna baconis inter omnes
famulos curie et ad pascham habebit i d. pro oblacione sua.' Eynsham
Inqu. 6 : ' Et quis eorum fuerit prepositus manerii, liber erit et quietus de
omnibus servitiis et consuetudinibus quas facit Johannes Mareys predictus,
auxUiis, pannagiis et denario S" Petri exceptis.'
' Suffolk Court Rolls (Bodleian), 3: 'Terra debuit custodiam clauiura
conuentus.' Ely Inqu., Cotton MSS., Claudius, C. xi. f 26, a : 'Ad idem
tenementum pertinet esse coronarium et replegiare homines episcopi . . . et
facere capciones et disseisinas infra insulam et extra.' Shaftesbury Cart.,
Harl. MSS., 61, f 60 : ' lacobus tenet 5 acras et servabit boves excepta
pestilencia et violencia.'
Y 3

324 ZU ^o^b—^tvvAn(0—SvuZtnAnt0, [Essayh.
contributed at the same time to raise a class which acted
as a kind of nervous system, connecting the different
parts with a common centre and establishing rational
intercourse and hierarchical relations. The libertini had
to fulfil kindred functions in the ancient world, but
their importance was hardly so great as that of medieval
sergeants or ministeriales. We may get some notion of
what that position was by looking at the personal influence
and endowments of the chief servants in a great household
of the thirteenth century. The first cook and the gate
keeper of a celebrated abbey were real magnates who held
their offices by hereditary succession, and were enfeoffed
with considerable estates \ In Glastonbury five cooks
shared in the kitchen-fee ^. The head of the cellar, the
gatekeeper, and the chief shepherd enter into agreements
in regard to extensive plots of land ^. They appear as
entirely free to dispose of such property, and at every step
we find in the cartularies of Glastonbury Abbey proofs of
the existence of a numerous and powerful ' sergeant ' class.
John of Norwood, Abbot of Bury St. Edmund's, had to
' Glastonbury Cart., Wood MSS., i, f 126: 'Carta abbatis Galfridi facta
WiUelmo Pasturel (pistori) de terris et tenementis in Glastonia : . . . red
dendo inde per annum nobis et successoribus nostris unam rosam ad festum
nativitatis beati Johannis baptiste pro omni seruicio saluo seraicio regali
quantum pertinet ad tantam terram et salvo nobis et successoribus nostris
sectis curiarum nostrarum Glastonie sicut alu liberi eiusdem uiUe nobis
faciunt.' Glastonbury Inqu. of 1 189, p. 10 : 'Galterus portarius tenet tene
mentum suura scilicet portam hereditarie cum his pertinentiis.' Shaftesbury
Cart., Harl. MSS., 61, f 90: 'Maria Dei gratia Abbatissa ecclesie S" Ead-
wardi . . . Cura dUectus noster Thurstanus portarius portara nostrara cum
omnibus ad eam pertinentibus toto tempore vite sue libere et quiete et iure
hereditario possedisset et Robertus filius et heres eius, dum post eum con-
tigit Thomam heredem eiusdem Roberti post decessum patris eius eo quod
minoris esset etatis in custodiam nostram deuenire . . . cumque ipsum diucius
tenuissemus in custodia pensatis predecessorum suorum obsequiis qui nobis
fideUter et laudabiUter ministrauerunt . . . iura ad ipsum et ad heredes eius
racione custodie dicte porte pertinencia . . . presenti pagina duximus ex-
primenda.' ' Glastonbury Inqu. of 1189, p. 13.
^ Glastonbury Cart., Wood MSS., j, f. 125 : ' Carta Murielle Pasturel facta
Galfrido Abbati Glastoniensi de tenementis et redditibus pertinentibus (ad)
servanciam de la lauandrie.'

Chap. IV.] ZU ftu ^enan(0. 325
resort to a regular coup d/tat in order to displace the privi
leged families which had got hold of the offices and treated
them as hereditary property ^. In fact the great ' ser
geants ' ended by hampering their lords more than serving
them. And the same fact of the rise of a ' ministerial '
class may be noticed on every single estate, although it is
not so prominent there as in the great centres of feudal
life. The whole arrangement was broken by the substi
tution of the ' cash nexus ' for more ancient kinds of
economic relationship, and by the spread of free agree
ments : it is not difficult to see that both these facts acted
strongly in favour of driving out hereditary and customary
obligations. We have considered the relative position of the unfree Free
holdings, of the domanial land around which they were the^^an'or
grouped, and of the class which had to put the whole
machinery of the manor into action. But incidentally we
had several times to notice a set of men and tenements
which stood in a peculiar relation to the arrangement we
have been describing : there were in almost every manor
some free tenants and some free tenements that could not
be considered as belonging to the regular fabric of the
whole. They had to pay rents or even to perform labour
services, but their obligations were subsidiary to the work
of the customary tenants on which the husbandry of the
manorial demesne leaned for support. From the economic
point of view we can see no inherent necessity for the
connexion of these particular free tenements with that
particular manorial unit. The rent, large or small, could
have been sent directly to the lord's household, or paid
in some other manor without any perceptible alteration
in favour of either party; the work, if there was such to
' Bury St. Edraund's Reg., Harl. MSS., 743, f 270 sqq. :'.... ita taraen quod
nullus obedienciariorum predictorum potestatem habeat seu auctoritatem
conferendi aliquod officium seu servanciam alicui ad terminum vite rec
statum liberi tenementi alicui in premissis de cetero concedendi, set huius
modi seruientes officia predicta necessaria ex coUacione predictorum obedi-
enciarioram habentes ad voluntatem obedienciariorum predictoram remove-
antur quociens necesse fuerit (a.d. 1294).'

326 ZU Botb—^twAnt0—Stu ^enan(0. [essay n.
perform, was without exception of a rather trifling kind,
and could have been easily dispensed with and commuted
for money. Several reasons may be thought of to explain
the fact that free tenements are thus grouped along with
the villain holdings and worked into that single unit the
manor. It may be urged that the division into manors
is not merely and perhaps not chiefly an economic one,
but that it reflects a certain political organisation, which
had to deal with and to class free tenants as well as
servile people. It may be conjectured that even from
the economic point of view, although the case of free
tenants would hardly have called the manorial unit into
existence, it was convenient to use that class when once
created for the grouping of villain land and work : why
should the free tenants not join the divisions formed
for another purpose but locally within easy reach and
therefore conveniently situated for such intercourse with
the lord as was rendered necessary by the character of
the tenement ? Again, the grouping of free tenants may
have originated in a time when the connexion with the
whole was felt more strongly than in the feudal period;
it may possibly go back to a community which- had no
thing or little to do with subjection, and in which the free
landowners joined for mutual support and organisation.
It is not impossible to assume, on the other hand, that in
many cases the free tenant was left in the manorial group
because he had begun by being an unfree and therefore a
necessary member of it. All such suppositions seem prima
facie admissible and reasonable enough, and at the same
time it is clear, that by deciding in favour of one of them
or by the relative importance assigned to each we shall
very materially influence the solution of interesting his
torical problems.
In order to appreciate rightly the position of the free
tenements in the manor we have to examine whether these
tenements are all of one and the same kind or not and this
must be done not from the legal standpoint whence it has
already been reviewed, but in connexion with the practical

Chap. IV.] CuAtkn of ^^u Z<intmint0. 327
management of the estate. I think that a survey of the
different meanings which the term bears in our documents
must lead us to recognise three chief distinctions : first
there is free land which once formed part of the demesne
but has been separated from it ; then there is the land
held by villagers outside the regular arrangements of the
rural community, and lastly there are ancient free holdings
of the same shape as the servile tenements, though differ
ing from the latter in legal character. Each class will
naturally fall into subdivisions ^.
Under the first head it is to be observed that domanial Free
land very often lost its direct connexion with the lord's c™ved out
household, and was given away to dependent people on of the
certain conditions. One of the questions addressed to the ^™^^"^'
juries by the Glastonbury Inquest of 1189 was prompted
by this practice : it was asked what demesne land had been
given out under free agreement or servile conditions, and
whether it was advantageous to keep to the arrangement
or not. One of the reasons which lay at the root of the
process has been already touched upon. Grants of doma
nial land occur commonly in return for services rendered
in the administration of the manor : reeves, ploughmen,
herdsmen, woodwards are sometimes recompensed in this
manner instead of being liberated from the duties incum
bent on their holding. A small rent was usually affixed
to the plot severed from the demesne, and the whole
arrangement may be regarded as very like an ordinary
lease. An attenuated form of the same thing may be
noticed when some officer or servant was permitted to use
certain plots of domanial land during the tenure of his
office. It happened, for instance, that a cotter was en
trusted to take care of a team of oxen belonging tb the
lord or obliged to drive his plough. He might be repaid
' A fourth class would be composed of tenements belonging to people
personally strange to the manor. Such ' forinsec ' tenants were often
high and mighty persons who had nothing to do with the agrarian arrange
ments of the place. I do not speak of this class, because its position is
evidently an artificial one and of no importance for the internal organisation
ofthe manor, though interesting from the legal point of view.

328 ZU Bovb—^n9Ant0—§vu Z<tnAnt0, [Essay ii.
either by leave to use ^e manorial plough on his own land
on specified occasions, or else by an assignment to him of
the crop on certain acres of the home farm ^ Such
privileges are sometimes granted to villagers who do not
seem to be personally employed in the manorial adminis
tration, but such cases are rare, and mu.st be due to special
reasons which escape our notice.
It is quite common, on the other hand, to find de
ficiencies in the normal holdings made up from the
demesne, e.g. a group of peasants hold five acres apiece
in the fields, and one of the set cannot receive his
full share : the failing acres are supplied by the de
mesne. Even an entire virgate or half-virgate may be
formed in this way ^- Sometimes a plot of the lord's land
is given to compensate the bad quality of the peasant's
land ^. Of course, such surrenders of the demesne soil
were by no means prompted by disinterested philanthropy.
They were made to enable the peasantry to bear its bur
dens, and may-be to get rid of patches of bad soil or
ground that was inconveniently situated*. In a number
of cases these grants of demesne are actual leases, and
probably the result of hard bargains.
Inland. However this might be, we find alongside of the estate
farmed for the lord's own account a great portion of the
demesne conceded to the villagers. The term ' inland,'
which ought properly to designate all the land belonging
directly to the lord, is sometimes applied to plots which
have been surrendered to the peasantry, and so dis-
' Shaftesbury Inqu., Harl. MSS., 6i, f 45, d : ' Bubulci et Gadinci habent
sabbatum per ordinem carucarum donee eorum aretur terra.' Glastonbury
Inqu. of 1 189, p. 14 : ' Habebit etiam unam acram in autumpno uno anno apud
Strete et alio anno aliam acram apud Waltonam.'
" Glastonbury Inqu. of 1180, p. 46 : ' Stephanus fil. B. . . . de dominico
2 acras ad implementum terre sue.' Cf 39 : '3 acras ad perficiendum
suas 5 acras.' Ibid. 81 : ' Norraan de Pola dimidiam virgatam. Totum tene
mentum suura est de dominico.'
' Ibid. 39 : ' unam acram pro 4d. ad eraendacionem terre sue.'
* Ibid. 27 : ' Robertus prepositus unam acram pro quodam soc quam
magister Alured tenuit, et dicunt juratores sic esse utiUus quam esset in
cultura, quia longe est a dominico.'

Chap. IV.] BtA0^0 of ©eme0ne BAnb. 329
tinguishes them from the regular customary holdings \
Such concessions of demesne land were not meant to create
freehold tenements. Their tenure was precarious, the
right of resumption was more expressly recognised in the
case of such plots than in that of any other form of rural
occupation, but the rights thus acquired tended to become
perpetual, like everything else in this feudal world ; and as
they were founded on agreement and paid for with money
rents, their transformation into permanent tenures led to
an increase of free tenements and not of villainage. We
catch a glimpse of the process in the Domesday of St.
Paul's. In 1340 a covenant was made between the Chapter
of the Cathedral and its villagers of the manor of Beau
champ in Essex : in consequence of the agreement all the
concessions of demesne land which had been made by the
farmers were confirmed by the Chapter. The inquests
show that those who farmed the estates had extensive
rights as to the use of domanial land, but their dealings
with the customary tenants were always open to a revision
by the landlords. A confirmation like this Beauchamp
one transferred the plot of demesne land into the class of
free tenements, and created a tenure defensible at law^.
All such facts increase in number and importance with the
increase of population : under its pressure the area of direct
cultivation for the lord is gradually lessened, and in many
surveys we find a sort of belt formed around the home
farm by the intrusion of the dependent people into the
limits of the demesne ^ The Domesday of St. Paul's is
' Domesday of St. Paul's, p. ii8 : 'Anno domini 1240 Hugone de .S'°
Eadmundo existente custode manerii de bello campo homines infrascripti
tenentes terras de dominico quas vocant inlandes sine auctoritate capituli
augmentaverunt redditum assizum, ut auctoritas capituli interveniret.'
' Ibid , p. 121 : ' Ricardus A. non feffatus nisi per firmarium consuevit dare
annuatim 4 solidos ; de cetero dabit 4 sol. 7 den. et ob.' Cf 52 : ' Subscripti
sunt feffati de pasturis et frutectis usque ad titulum in proximum.' Add. MSS.
^IS9> f 70 : ' Robertus Cob tenet 5 acras pro 25 d. per capitulum ut sit per
petuum.' Domesday of St. Paul's, 60 : ' Ricardus Wor 13 acras de terra
arabUi et unum mariscum 10 acrarum pro 4 sol. et 10 d. et per cartam
capituli.' ' Ramsay Inqu., Cotton MSS., Galba E. x. fol. 49 : ' De nova purprestura

330 ZU ^ovb—^itvAnt0—§vuZinAnt0, [essavil
especially instructive on this point. Every estate shows
one part of the lord's land in the possession of the peasants ;
sometimes the ' dominicum antiquitus assisum ' is followed
by ' terrae de novo traditae ^.'
Leases. A second group of free tenements consists of plots which
did not belong either to the demesne or to the regular
holdings in the fields, but lay by the side of these holdings
and were parcelled out in varying quantity and under
various conditions. We may begin by noticing the growth
of leases. There is no doubt that the lease-system was
growing in the thirteenth century, and that it is not ade
quately reflected in our documents. An indirect proof of
this is given by the fact, that legal practice was labouring
to discover means of protection for possession based on
temporary agreement. The writ 'Quare ejecit infra ter
minum' invented by William Raleigh between 1336 and
1 240 protected the possession of the ' tenant for term of
years' who formerly had been regarded as having no
more than a personal right enforceable by an action of
covenant ^.
Manorial extents are sparing in their notices of leases
because their object is to picture the distribution of owner
ship, and temporary agreements are beyond their range.
But it is not uncommon to find a man holding a small
piece of land for his life at a substantial rent. In this case
his tenure is reckoned freehold, but still he holds under
what we should now call a lease for life ; the rent is a
substantial return for the land that he has hired. That
English law should regard these tenants under leases for
life as freeholders, should, that is, throw them into one
50 acras .... quas 4 homines de dominico tenent.' Cf. Domesday of St.
Paul's, 7. 20.
' Glastonbury Inqu. of 1189, in : ' Homines tenent septem virgatas terre
de dominico de terra superius nominata, in parte erat liberata in tempore
Henrici episcopi et in parte postea cum 7 acris quas Johannes clericus tenet.'
Domesday of St. Paul's, 51 : ' Tenentes de dominico antiquitus assise'
53 : ' Dicunt ecram quod terre de dominico de novo tradite satis utUiter tradite
sunt.' ' Bracton, f. 220. See F. W. Maitland in the Harvard Law Review, iii.
173-

Chap. IV.] BiA0(i0. 331
great class with tenants who have heritable rights, who
do but military service or nominal service, who are in fact
if not in name the owners of the land, is very remarkable ;
hirers are mingled with owners, because according to the
great generalisation of English feudalism every owner is
after all but a hirer. Still we can mark off for economic
purposes a class of tenants whom we may call ' life-lease
holders,' and we can see also a smaller class of leaseholders
who hold for terms of years ^. They often seem to owe
their existence to the action of the manorial bailiffs or
the farmers to whom the demesne has been let. We
are told that such and such a person has ' entered ' the
tenement by the leave of such and such a farmer or bailiff,
or that the tenement does not belong to the occupier by
hereditary right, but by the bailiff's precept^. Remarks
of that kind seem to mean that these rent-paying plots,
liberated from servile duties, were especially liable to the
interference of manorial officers. Limits of time are rarely
mentioned, and leases for life seem to be the general rule ^
' Rot. Hundr. ii. 336, a : ' In firmariis Johannes clericus tenet unam dimi
diam virgatam terre ad terminum vitae suae pro 6 solidis per annum pro omni
servicio.' Cf 344, 346. Add. MSS. 6159, p. 70 : ' Hanc terrara tenuit post
modum Thomas de Retendon et cum esset conventus a capitulo super ingressu
in ilia eo quod aliquando dixisset quod tenuit eam in feodo et non posset illud
monstrare et recognovit se non habere ius in ilia et reddidit eam quietam
decano et capitulo qui postmodum concesserunt eandem terram cum manso
ipsi Thomae tenendum de ipsis ad vitam suam tantura pro 2 sol. et 6 d. per
annum.' Glastonbury Cart., Wood MSS., i, 240, a : ' Magister Nicholaus de
Malmesburi rector ecclesie de Cristemalforde . . . quod cura ego recepissera
terram Ricardi de Leyweye in manerio de Cristemalforde ... ad terminum
15 annorum et uiri religiosi Glastonie se opposuissent dicentes (dicenti ?) me
esse infeodatum de terra predicta, presenti scriptura confiteor me post
predictos 18 annos in dicta terra non posse vendicare feodum nee liberam
tenementum.' ^ Glastonbury Inqu. of 1189, p. 79: 'Johannes clericus . . . idem tenet
unum cotsetle pro 16 d. pro omni servitio ex presto firmariorum Reginaldi
scUicet de Waltona.' Domesday of St. Paul's, 94: ' GUbertus filius N. tenet
tres virgatas in quas GUbertus a^vus suus habuit ingressum per Theodoricum
firmarium et modo reddit pro illis 36 solidos,' etc. Ibid. 40 : ' Thomas filius
Godrici 22 acras pro 22 d. cuius medietas quondam Stephani, set habet eam
per Ricardum firmarium.' Ibid. 25 : ' Walterus de mora 14 acras pro 4 solidis
et 8 d. quondam Elvine, cui non attinet, cuius ingressus ignoratur.'
^ Warwickshire Hundred Roll, Q. R. Misc. Books, 429, i. 13, b : ' Unde

332 ZU ^ovb—^tvvAnt0—SvuZtnAnt0. [Essayh.
The tenure is only in the course of formation, and by no
means clearly defined. One does not even see, for instance,
how the question of implements and stock was settled —
whether they were provided by the landlord or by the
tenant.
Forlands. We feel our way with much greater security in another
direction. The fields of the village contain many a nook
or odd bit which cannot be squeezed into the virgate
arrangement and into the system of work and duties con
nected with it. These ' subsecivae,' as the Romans would
have said, were always distributed for small rents in kind
or in money ^. The manorial administration may also
exclude from the common arrangement entire areas of
land which it is thought advantageous to give out for rent.
Those who take it are mostly the same villagers who pos
sess the regular holdings, but their title is different ; in one
case it is based on agreement, in the other on custom ^.
Plots of this kind are called forlands ^. In close con
nexion with them we find the essarts or assarts — land newly
reclaimed from the waste, and therefore not mapped out
according to the original plan of possession and service.
The Surveys often mark the different epochs of cultivation
— the old and the new essarts *- The documents show
WiUelmus de Wexton tenet unum cotagium libere ad terminum vite sue pro
4 solidis metens in autumpno per i diem.' A peculiar case is found in
Glastonbury Inqu. of 1 189, p. 69 : ' Godivin palmer . . . dimidiam virgatam . . .
ex tempore Roberti Abbatis per Thomam Cameriarum in cujus custodia fuit
tunc raanerium.' (Later hand) : ' Iste Godwin dedit Henrico abbati dimidiam
marcam et acrevit gabulum de 12 d. Hec convencio durabit dum dominus
Abbas erit.'
'¦ Domesday of St. Paul's, 25 : ' Robertus fiUus Roger fiUi mercatoris unam
acram et dimidiara pro 6 d. Item paruum augmentum pro i d.'
^ Rot. Hundr. i. 451 : ' Itera Andreas prepositus tenet tantum terre sicut
dictus Goscelinus villanus in omnibus. Et preter hoc tenet 3 acras pro
libra cimini. Item Rogerus Doning facit sicut dictus Goscelinus in omnibus
et debet domino suo pro uno seillione terre 6d. per annum. Willelmus
Mathew tenet eodem modo et preter hoc dat domino suo pro una acra
4 capones precii 6 den.'
' Worcester Cart., 27, a: ' de forlandis. De Thoma de G. pro 5 acris . . .
De acra quara Symon Carpenter tenuit. De Alicia vidua pro dimidia acra.
De Johanne Roberti pro 4 buttis in crofta,' etc.
' Domesday of St. Paul's, p. 7 sqq. ; ' (Kenesworthe) isti tenent de domi-

Chap. IV.] ^00AVt0, 333
also that the spread of the area under cultivation was
effected in different ways ; sometimes by a single settler
with help from the lord ^, and sometimes by the entire vil
lage, or at any rate by a large group of peasants who club
together for the purpose ^. In the first case there was no
reason for bringing the reclaimed space under the sway of
the compulsory rotation of crops or the other regulations
of communal agriculture. In the second, the distribution.
of the acres and strips among the various tenants was
proportioned to their holdings in the ancient lands of the
village. The rents on essart land seem very low, and no
wonder : everywhere in the world the advance of cultiva
tion has been made the starting-point of privileged occu
pation and light taxation. The Roman Empire introduced
the emphyteusis as a contract in favour of the pioneers of
cultivation, the French feudal law endowed the hdtes {hos-
pites) on newly reclaimed land with all kinds of advantages.
English practice is not so explicit on this point, but it is
not difficult to gather from the Surveys that it was not
blind to the necessity of patronising agricultural progress
and encouraging it by favourable terms.
Of mol-land I have already spoken in another chapter.
I will only point out now that this class of tenements
appears to have been a very common one. Thirteenth-
century surveys often describe certain holdings in two
different ways — on the supposition of their paying rent,
and also on that of their rendering labour-services ; when
they pay rent they pay so much, when they supply
labour they supply so much. By the side of such hold
ings, which are wavering, as it were, between the two
systems, we find the terra assisa or ad censum. This class,
nico et de essarto.' 21 sqq. : ' (Erdelege) isti tenent de essarto veteri.'
75 : ' (Nastox) nova essarta.'
' Wore. Cart., 13: 'Idem tenet assartum pro medietate fractus et Prior
invenit raedietatem seminis.'
" The essarts of St. Paul, London, are divided into small portions among
the peasantry, and the same men own them who are possessed of the regular
holdings — all indications that the clearing was made according to a general
plan and by the whole village.

334 ZU Borb—^ttr)Ant0—SvuZtnAnt0. [essayil
to which molland evidently belongs, is distinguished from
free tenure by the fact that its rent is regarded as a mano
rial arrangement ; there is no formal agreement and no
charter, and therefore no action before the king's courts to
guard against disseisin or increase of services. In practice
the difference is not felt very keenly, and these tenements
gradually came to be regarded as ' free ' in every sense. A
characteristic feature of the movement may be noticed in
the terms ' Socagium ad placitum' and ' Socagium villani'^'.
These expressions occur in the documents, although they
are not very common. It would be hard to explain them
otherwise than from the point of view indicated just now.
The tenement is paying a fixed and certain rent and
therefore socage, but it is not defended by feoffment and
charter ; it is not recognised by law, and therefore it
remains at the will of the lord and unfree^- The grant
of a charter would raise it to the legal standing of free
land.
Ancient Every student of manorial documents will certainly be
struck by one well-marked difference between villain tene
ments and free tenements as described in the extents and
surveys. The tenants in villainage generally appear ar
ranged into large groups, in which every man holds, works,
and pays exactly as his fellows ; so that when the tene
ment and services of some one tenant have been described
we then read that the other tenants hold similar tenements
and owe similar services. On the other hand, the freeholds
seem scattered at random without any definite plan of
' Worcester Cart., 47, 48 : ' de soccagus et forlandis viUanorum.' Ct 49.
^ A curious species of land tenure is the so-called rofliesland (rough
lease ?). Glastonbury Inqu. of 1189, 29 : ' W. de W. tenet unum Rofliesland
eodem servicio ; tota terra est in voluntate domini.' 65 : ' W. tenet 5 acras et
filius suus 5 acras ; unus eorum tenet carucam domini, alter fugat boves.
Terra quam filius eius tenet est Rofles.' 66 : ' R. fil. A. tenet unum ferdel de
Rofliesland pro 2 solidis pro omni servicio per camerarium.' 90 : ' Idem tenet
dimidiam virgatam de rofliesland pro duobus solidis, quod utUius esset edifi-
cari.' Cf 164, sub voce Roflesland. The name is found often in old leases
in Wilts and Somerset as a ' Rough lease ' or ' Rowlease.' I think the term
must indicate one of those informal agreements of which I speak in the
text. See also Reg. Malmesbur. ii. 9, 10.

freeholds.

chap.iv] Mncknt S^^^Uib0, 335
arrangement, parcelled up into unequal portions, and sub
jected to entirely different duties. One man holds ten
acres and pays three shillings for them ; another has eight
and a half acres and gives a pound of pepper to his lord ;
a third is possessed of twenty-three acres, pays 4s. 6d.,
and sends his dependants to three boonworks ; a fourth
brings one penny and some poultry in return for his one
acre. The regularity of the villain system seems entirely
opposed to the capricious and disorderly phenomena of
free tenure.
And this fact seems naturally connected with some
remarkable features of social organisation. No wonder
that free land is cut up into irregular plots : we know that
it may be divided and accumulated by inheritance and
alienation, whereas villain land is held together in rigid
unity by the fact that it is, properly speaking, the lord's
and not the villain's land. Besides, all the variations of
free tenure which we have discussed hitherto have one
thing in common, they are produced by express agreement
between lord and tenant as to the nature and amount of
services required from the tenant Whether we take the
case of a villain receiving a few acres in addition to his
holding, or that of a servant recompensed by the grant of
a privileged plot, or that of a peasant confirmed in the
possession of soil newly reclaimed from the waste, or that
of a bondman who has succeeded in liberating his holding
from the burdensome labour service of villainage, in all
these instances we come across the same fundamental
notion of a definite agreement between lord and tenant.
And again, the capricious aspect of free tenements seems
well in keeping with the fact that they are produced by
separate and private agreements, by consecutive grants
and feoffments, while the villain system of every manor is
mapped out at one stroke, and managed as a whole by the
lord and his steward. This contrast between the two
arrangements may even seem to widen itself into a differ
ence between a communal organisation which is servile,
and a system of freeholding which is not communal. All

336 ZU ^ovb—§ttvAnt0—§vuZ^nAnt0, [essayii.
these inferences are natural enough, and all have been
actually drawn.
A close inspection of the Surveys will, however, con
siderably modify our first impressions, and suggest con
clusions widely different from those which I have just now
stated. The importance of the subject requires a detailed
discussion, even at the risk of tediousness. I shall take my
instances from the Hundred Rolls, as from a survey which
reflects the state of things in central counties and gives an
insight into the organisation of secular as well as ecclesias
tical estates.
We need not dwell much on the observation that the
servile tenements sometimes display no perfect regularity.
Sometimes the burdens incumbent on them are not quite
equal. Sometimes again the holdings themselves are not
quite equal. In Fulborne, Cambridgeshire, e. g., the vil
lains of Alan de la Zuche are assessed very irregularly ^,
although their tenements are described as virgates and half-
virgates. Of course, the general character of the virgate
system remains unaltered by these exceptional deviations,
which may be easily explained by the consideration that
the social order was undergoing a process of change. The
disruption of some of the villain holdings and the modifica
tion of certain duties are perhaps less strange than the fact
that such alterations should be so decidedly exceptional.
Still, the occurrence of irregularities even within the range
of villainage warns us not to be too hasty in our inferences
about free tenements ; it shows, at any rate, that irregu
larities may well arise even where there has once been a
definite plan, and that it is worth while to enquire whether
some traces of such an original plan may not still be dis
covered amidst the apparent disorder of free tenements.
Free And a little attention will show us many cases in which
virgates. ' Rot. Hundr. ii. 437 : ' Symon et Petrus . . . tenent de eodem Alano unam
virgatam terre et solvunt per annum 8 s. et debent arare tres dimidias acras
terre . . . Adam Swetcoc tantura tenet de predicto Alano et solvit 9 sol. 3 d. et
facit per omnia sicut predicti Simon et Petrus et tantum plus quod debet
metere . . . Thomas Alwyne tantum tenet de predicto Alano et soMt 8 s.
et debet arare 3 acras avene et metere duas acras,' etc. Cf 446, 473.

Chap.iv.] -^xU (^XXC^Ati0, 337
free tenements are arranged on the virgate system. There
is hardly any need for quotations on this point : the
Hundred Rolls of all the six counties of which we possess
surveys, supply an unlimited number of instances. True,
fundamental divisions of land and service may often be ob
scured and confused by the existence of plots which do
not fit into the system ; but as in the case of servile tene
ments we occasionally find irregularities, so in the case of
free tenements we often see that below the superficial ir
regularities there lie traces of an ancient plan. The manor
of Ayllington (Elton)^ Huntingdonshire, belonging to the
Abbey of Ramsey, presents a good example in point \ It
is reckoned to contain thirteen hides and a half, each hide
comprising six virgates, and each virgate twenty-four acres.
The actual distribution of the holdings squares to a fraction
with this computation, if we take into the reckoning the
demesne, the free and the villain tenements. Three hides
are in the lord's hand, one is held by a large tenant,
John of Ayllington, eleven virgates and a half by other
freeholders, forty-two virgates and a half by the villains ;
the grand total being exactly thirteen hides. The numerous
cotters are not taken into account, and evidently left ' out
side the hides ' (extra hidam) ; this is a very common thing
in the Surveys. If we neglect them, and turn to the
holdings in the ' hidated ' portion of the manor, we shall
notice that the greater part of the free tenements are
arranged on the same system as the servile tenements.
We find six free tenants with a virgate apiece, one with
half a virgate, three with a virgate and a half and three
jointly possessed of two virgates. In contrast with this
principal body of tenants stand several small freeholders
endowed with irregular plots reckoned in acres and so much
varying in size that it is quite impossible to arrange them
according to any plan, not to speak of the virgate system.
But these small tenants are all sub-tenants enfeoffed by
the principal freeholders whose own tenements are dis
tributed into regular agrarian unity. It is easy to see that
' Rot. Hundr. u, 656.
VOL. I, Z

338 ^^e Botri— ^^trvan(0— jfree ^en<infe. [essayil
even when the stock of free tenancies stood arranged
according to a definite plan, deviations from this plan
would easily arise owing to new feoffments made by the
lord out of the demesne land or out of the waste \ What
I am concerned to say is, not that the Hundred Rolls show
a distribution of free holdings quite as regular as that ofthe
servile tenements, but that amidst all the irregularities of
the freehold plots we frequently come across unmistakable
traces of a system similar to that which prevailed on
villain soil. These traces are not always of the same kind,
and present various gradations. In a comparatively small
number of instances the duties imposed on the shareholders
are equal, or nearly so ; much more often the rent and
labour rendered by them to the lord vary a great deal, al
though their tenements are equal. The Ayllington instance,
quoted above, belongs to the former class, but the propor
tionate distribution of duties is somewhat obscured by the
fact that part of them is reckoned in labour. The normal
rent is computed at six shillings per virgate ^, though there
are a few noticeable exceptions, but the duty of ploughing is
imposed according to two different standards, and it is not
easy to reduce these to unity. The freeholders of one group
have to plough eight acres per virgate for the lord, while
for the members of the other group the ploughing work is
reckoned in the same way as in the case of the villains,
each placing his team at the disposal of the lord one day
' In Sawtrey le Moyne and Sawtrey Beaumeys (6S9, 660) the free tenants
are partly virgaters and half-virgaters, partly holders of small plots. I need
not say that all my quotations are of cases which might be multiplied to
any extent.
" The undated Survey of the Ramsey Cartulary (ii. 487) has a different
reckoning : ' Item omnes positi ad censum qui tenent virgatam, vel dimidiara
virgatam, dabunt per annum pro virgata octo solidos, vel pro dimidia vir
gata quatuor solidos.' There are several other small discrepancies with
the Hundred Roll description. The document endorsed in the Cartulary
seems the earlier one, and the differences have to be explained in all proba
bUity by some attempt on the part of the Monastery to set up a higher rent
at the time of its compUation. One does not see the slightest ground for
any reduction of the rent in process of time. Generally speaking, the con
ditions described in the Hundred Roll are more irregular than those men
tioned in the Cartulary.

CHAP.IV] ^xU (^XtO^Ati0, 339
of every week from Michaelmas to the ist of August four
weeks being excepted in honour of Christmas, Easter, and
Trinity^- Ravenston, in Buckinghamshire, is a much
clearer example. Twelve villains hold of the Prior of
Ravenston twelve acres each, and their service is worth
eighteen shillings per holding ; four villains hold six acres
each, and their service is valued at nine shillings. One
free tenant has twelve acres and pays sixteen shillings ;
six have six acres each, and pay seven shillings. There
are three other tenants whose duties cannot be brought
within the system^. The portion of Fulborne, in Cam
bridgeshire, belonging to Baldwin de Maneriis, may also serve
as an illustration of an almost regular distribution of land
and service among the freeholders ^. Instances in which
the duties, although not exactly, are still very nearly equal,
are very frequent In Radewelle, Bedfordshire, the mean
rent of the six is two shillings per half-virgate, although
the villains perform service to the amount of eight shillings
per virgate *. Bidenham, Bedfordshire, also presents an as
sessment of four shillings per free virgate ^. In that part of
Fulborne which is owned by Alan de la Zuche the virgates
and half-virgates of the free holders are variously rented ;
but twelve shillings per half-virgate is of common occur
rence ®, while in the fee of Maud Passelewe we find only four
and five shillings as the rent for the half-virgate ''. Pap-
worth Anneys exhibits a ferdel of seven and a half acres, for
which ten to twelve shillings are paid ^ As to the cases in
which the service varies a great deal, although the land is
held in shares, I need not give quotations because they are
to be found on every page of the printed Hundred Rolls.
We may say, in conclusion, that the process of disruption
*> The Ramsey Cartulary has simply : ' Et ¦virgatarius arabit et herciabit
qualibet septimana per unum diem sicut operarius.'
' Rot. Hundr. n. 348.
^ Ib. 443, 444. Isabel, the daughter of William le Frend, is taken as a
typical half-virgater.
' Rot. Hundr. ii. 326. ° Ib. ii. 327.
' Ib. ii. 436. ' Ib. u. 438.
' Ib. ii. 473.
z a

340 ZU Bovb—^ixvAnt0—Stu Z^nAnt0, [essay h.
acts much more potently in the sphere of free holding than
it does in regard to villainage ; but that it has by no means
succeeded in destroying all regularity even there.
Free share- Thus, even among the freeholders, landholding is often
holders, .^j^^^. j gj^g^n ^.^j^g leaive to call ' shareholding.' Now, what
ever ultimate explanation we may give of this fact it has
one obvious meaning. That part of the free population
which holds in regular shares is not governed entirely by
the rules of private ownership, but is somehow implicated
in the village community. Bovates and virgates exist only
as parts of carucates or hides, and the several carucates or
hides themselves fit together, inasmuch as they suppose
a constant apportionment of some kind. Two sets of
important questions arise from this proposition, both inti
mately connected with each other, although they suggest
different lines of enquiry. We may start from an examina
tion of the single holding, and ask whether its regular shape
can be explained by the requirements of its condition or
by survivals of a former condition. Or again, we may start
from the whole and inquire whether the equality the
elements of which we detect is equality in ownership or
equality in service. Let us take up the first thread of the
inquiry.
Origins of How Can WC account for the occurrence of regular ' share-
holding'^^ holding' among the freeholders? Two possibilities have
to be considered : the free character of the tenements may
be newly acquired and the ' shareholding ' may be a relic
of a servile past ; or, on the other hand, the freehold
character of the tenements may be coeval with the ' share
holding,' and in this latter case we shall have to admit the
existence of freeholds which from of old have formed an
element in the village community. In the first of these
cases again we shall have to distinguish between two
suppositions : — Servile tenements have become free ; this
may be due either to some general measure of enfranchise
ment, a lord having preferred to take money rents in lieu
of the old labour services, and these money rents being the
modern equivalent for those old services, or else to par-

CHAP.IV] Svu ^^afe^of&tng. 341
ticular and occasional feoffments made in favour of those
who, for one reason or another, have earned some benefit
at the lord's hand. To put it shortly, we may explain the
phenomenon either by a process of commutation such as
that which turned ' workland ' into ' molland,' or by special
privileges which have exempted certain shares in the land
from a general scheme of villainage ; or, lastly, by the
existence of freeholds as normal factors in the ancient
village community.
Let us test these various suppositions by the facts re
corded in our surveys. At first sight it may seem possible
to account for the freehold virgates by reference to the
process which converted ' workland ' into ' molland.' We
have seen above that if a lord began to demand money
instead of work, the result might, in some cases, be the
evolution of new tenures which gradually lost their villain
character and became recognised as genuine freeholds.
And no doubt one considerable class of cases can be ex
plained by this process. But a great many instances seem
to call for some other explanation. To begin with, the mere
acceptance of rent in lieu of labour did not make the tene
ment a freehold ; servile tenements were frequently put
ad censum ^, and it seems difficult to believe that many lords
allowed a commutation of labour for rent to have the
effect of turning villainage into freehold. Another difficulty
is found on the opposite side. What force kept the shares
together when they had become free? Why did they
not accumulate and disperse according to the chances of
free development ? It may be thought that custom, and
express conditions of feoffment, must have acted against
disruption. L do not deny the possibility, but I say
that it is not easy to explain the very widely diffused

' Rot. Hundr. 470 : ' (villani) quUibet istorum tenet dimidiam ¦virgatam
terre de predicta Elena de quibus xxx et i operantur in uno anno et alii
xxxij operantur in alio anno et in eodem anno quo operantur dant domine per
annum 8 d. et alii qui non operantur dant per annum quilibet dimidius virga
tarius 2 s. 10 d. et auxilium Vicecomitis i d. obolum et quilibet dat obolum,
quadrantem ad festum St. Michaelis.'

342 ZU &oxb—^tvt>Ant0—SvuZ^nAnt0, [essayh.
phenomenon of free shareholding by a commutation which
tended to break up the shares and to make them useless
for the purposes of assessment Still I grant that these con
siderations, though they should have some weight, are not
decisive, and I insist chiefly on the following argument
The peculiar trait which distinguishes ' molland ' is the
transition from labour service to money rent, and the rent
is undoubtedly considered as an equivalent for the right to
labour services which the lord abandons. It must be
admitted that in some cases the lord may have taken less
than the real equivalent in order to get such a convenient
commodity as money, or because for some reason or
another he was in need of current coin. Still I am not
afraid to say that, in a general way, commutation supposes
an exchange against an equivalent. Indeed the demand
for money rents was considered rather as increasing than
as decreasing the burden incumbent on the peasantry t
Now, although it would be preposterous to try and make
out in every single case whether the rent of the free
virgate is an adequate equivalent for villain services or
not, there is a very sufficient number of instances in which
a rough reckoning may be made without fear of going
much astray ^. And if we attempt such a reckoning we
shall be struck by the number of cases in which the rent
of the free virgate falls considerably short of what it
yielded by the virgate of the villain. We have seen that
in Ravenston, Bedfordshire, the villain service is valued at
eight shillings per virgate, and that the free assessment
amounts only to four shillings. In Thriplow, Cambridge-
' Maitland, Select Pleas in Manorial Courts, vol. i. 95 : A reeve complains
that Richer Jocelin's son and Richard Reeve and his wife have insulted
him, by saying among other things '. . . quod cepisse debuit munera de divi-
tibus ne essent censuarii et pauperes ad censum posuisse debuit.'
2 It might perhaps be objected that the difference in favour of the free
people ought to be explained by a depreciation of money which in process
of time lowered the value of quit rents. But the explanation would hardly
suit the age in which the Hundred Rolls were compUed. The phenomenon
mentioned in the text raay be observed in all the Cartularies, and there is
no reason to think that the free rents which occur in them are already anti
quated survivals of agreements which had lost their economic sense.

CHAP.IV] jfVee ^^atre^ofMng. 343
shire, the villains perform labour duties valued at gs. 4d.
per bovate, the freeholders are assessed variously; but
there is a certain number among them which forms, as it
were, the stock of that class, and their average rent is ^s. 6d.
per bovate ^. In Tyringham, Buckinghamshire, the villain
holding is computed at six acres and one rood, and its
service at five shillings ; the free virgates have a like num
ber of acres and pay various rents, but almost without
exception less than the villains ^. In Croxton, Cambridge
shire, there are customers with twenty acres, and others
with ten acres ; the first have to pay ten shillings and to
assist at four boonworks. The free holders are possessed
of plots of irregular size, and their rent is also irregu
lar ; but on the average much lower than that of the
customers ^ Let it be noted that the customary tenants
have commuted their labour services into money payments,
and, in fact, they are to be considered as molmen in the
first stage of development. Still, their payments are com
puted on a different scale from those of the free.
In Brandone, Warwickshire, the typical villain, William
Bateman, pays for his virgate ^s. 3d., and sends one man
to work twice a week from the 39th of June until the ist of
August, and thence onward his man has to work two
days one week and three days the next. The free half-
virgate merely pays five shillings, and does suit to the
manorial court. This last point makes no difference, because
the villain had to attend the manorial court quite as
regularly as the freeholder, and indeed more regularly,
because he was obliged to serve on inquests *. In Bathe-
kynton, Warwickshire, the difference in favour of the free
is also noticeable, but not so great ^ And these are by no
' Rot. Hundr. u. 542. = Ib. 348. ' Ib. 508.
* Exch. Q. R. Misc. Books, N 29, f 11 a.
' Exch. Q. R. Misc. Books, N 29, f 12 : ' Idem Thomas habet ibidem 12
viUanos tenentes 4 ¦virgatas terre et dimidiam in vUlenagio, unde Johannes
Aylind tenet dimidiam virgatam terre pro 5 s. 8 d. faciens fenum domini per
unum diem cum uno homine, metens blada eiusdem domini per i diem eum
uno homine, etc. Idem Thoraas habet ibidem 11 liberos tenentes 11 virgatas
terre et dimidiam. Unde WUlelmus en la Nurne tenet dimidiam virgatam

344 ZU Bovb—^^WAnt0—SutZtnAnt0, [essayil
means exceptional cases. Nothing is more common than
to find free tenements held by trifling services, and what
ever we may think of single cases, it would be absurd
to explain such arrangements in the aggregate as the
results of a bargain between lord and serfs. It is evident
therefore, that a reference to ' molland,' to a commutation
of labour into rent, does not suit these cases ^-
Can we explain these cases of ' free shareholding ' by
feoffments made to favoured persons ? We have seen that
the lord used to recompense his servants by grants of
land and that he favoured the spread of cultivation by ex
acting but a light rent from newly reclaimed land. Such
transactions would undoubtedly produce free tenements
held on very advantageous terms, but still they seem
incapable of solving our problem. Tenements created by
way of beneficial feoffment are in general easily recognised.
The holdings of servants and other people endowed by
favour are always few and interspersed among the plots
of the regular occupiers of the land, be they free or serfs.
The ' essarted ' fields are sometimes numerous, but usually
cut up into small strips and as it were engrafted on the
original stock of tenements. Altogether privileged land
mostly appears divided into irregular plots and reckoned
by acres and not by shares. And what we have to account
for is a vast number of instances in which what seem to be
some of the principal and original shares in the land are
held freely and by comparatively light services. I do not
think that we can get rid of a very considerable residue of
cases without resorting to the last of the suppositions
mentioned above. We must admit that some of the free
holders in the Hundred Rolls are possessed of shares in
the fields not because they have emerged from serfdom,
et 4 acras terre pro 4 soUdis faciens sectam ad curiam de Bathekynton bis
per annum pro omni demanda.'
1 Bodekesham, Cambs. (R. H. u. 487), is probably a case of molland. The
oft;en-quoted instance of AyUington is doubtful, although the Ramsey Cartu
lary speaks of the liber tenentes as malmanni. The expression was probably
in use for all rent-paying people, although properly a designation of those
who had commuted their services. See Appendix XV.

Chap. IV] iDtXC^Xn Of ftU MaV^0> 345
but because they were from the first members of a village
community over which the lord's power spread. It would
be very hard to draw absolute distinctions in special cases,
because the terminology of our records does not take
into account the history of tenure and only indicates net
results. But a comparison of facts en bloc points to at
least three distinct sources of the freehold virgates. Some
may be due to commutation, others to beneficial feoff
ments, but there are yet others which seem to be ancient
and primitive. The traits which mark these last are
'shareholding' and light rents. The light rents do not
look hke the result of commutation, the 'shareholding'
points to some other cause than favours bestowed by the
lord. We shall come to the same conclusion if we follow the
other line of our inquiry. It may be asked, whether the
community into which the share is made to fit should be
thought of primarily as a community in ownership or a
community in assessment, whether the shares are con
structed for the purpose of satisfying equal claims or for
the purpose of imposing equal duties? The question is
a wide one, much wider than the subject immediately in
hand, but it is connected with that subject and some
of the material for its solution must be taken up in the
course of our present inquiry.
I have been constantly mentioning the assessment of
free tenements, their rents and their labour services. The
question of their weight as compared with villain services
has been discussed, but I have not hitherto taken heed
of the varying and irregular character of these rents and
services. But the variety and irregularity are worthy of
special notice. One of the most fundamental differences
between the free and servile systems is to be found in this
quarter. The villains are equalised not only as regards
their shares in the fields, but also as regards their duties
towards the lord ; indeed, both facts appear as the two
sides of one thing. The virgate of the villain is quite as
much, if not more, a unit of assessment as it is a share

346 ZU Bovb—^^t\>Ant0—fvuZinAnt0, [Essayil
of the soil. Matters look more complex in the case of free
land. As I have said before, there are instances in which
the free people are not only possessed of equal shares
but also are rented in proportion to those shares. In
much the greater number of instances, however, there is
no such proportion. All may hold virgates, but one will
pay more and the other less ; one will perform labour
duties, and the other not ; one will pay in money, and the
other bring a chicken, or a pound of pepper, or a flower.
Whatever we may think of the gradual changes which
have distorted conditions that were originally meant to be
equal, it is impossible to get rid of the fact that, in regard
to free tenements, equal shares do not imply equal duties
or even duties of one and the same kind.
One of two things, either the shares exist only as a
survival of the servile arrangement out of which the free
tenements may have grown, or else they exist primarily
for the purpose not of assessing duties but of apportioning
claims. In stating these possibilities I must repeat what
I said before, that it would be quite wrong to bring all the
observed phenomena under one head. I do not intend
in the least to deny that the freer play of economic
and legal forces within the range of free ownership must
have produced combinations infinitely more varying, ir
regular and complicated than those which are to be found
in villainage. A large margin must be allowed for such
modifications which dispersed and altered the duties that
were originally proportioned to shares. But a few simple
questions will serve to show that other elements must be
brought into the reckoning. Why should the disruptive
tendency operate so much more against proportionate
assessment than against the distribution into shares itself ;
in other words, why are equal tenements so much com
moner than equal rents ? If shareholding and equal rents
were indissolubly connected as the two sides of one thing,
or even as cause and effect, why should one hold its ground
when the other had disappeared, and how could the de
pendent element remain widely active when the principal

Chap. IV.] OxXC^Xn Of fxU ^U^^^' 347
one had lost its meaning? If the discrepancies between rent
and shares had been casual, we might try to explain them
entirely by later modifications. But these discrepancies are
a standing feature of the surveys, and it seems to me that
we can hardly escape the inference that shareholding has
its raison d /tre .quite apart from the duties owed to the
lord, and in this case we have to look to the communal
arrangement of proprietary rights for its explanation ; it
was a means of giving to every man his due. If this
principle is granted, all the observable facts fall into
their right places. One can easily imagine how free hold
ings came to exist within the village community in spite
of their loose connexion with the manor. In regard
to duties, they were practically outside the community;
not so as to proprietary rights and the agricultural
arrangements proceeding from them, for example such
arrangements as affected the rotation of crops, the use of
commons and fallow pasture, the setting up of hedges,
the repair of dykes, etc. There is no real contradiction
between the facts, that in relation to the lord every free
shareholder was, as it were, bound by a separate and
private agreement while in relation to the village he had
to conform to communal rule.
This last remark may require some further development.
The striking differences between the duties of the several
freeholders of one manor seem to show that these people
were not enfeoffed by the lord at the same time and under
the same conditions. If A is in every respect a fellow
of B, and still has to pay twice as much as B, it is clear
that his relation to the lord has been settled under different
circumstances from those which governed the settlement
of B's position. Now, from the point of view of later law
this meant that the two freeholds were created each by a
special feoffment. But this would be a very formal and
inadequate way of considering the case. Very often the
differences might be produced by subsequent arrangements
which, though not giving rise to new title, destroyed the
original uniformity of condition. Often again we may

348 ZU Bovb—^^tvAnt0—SxuZmAnt0, [essayii.
suspect that the relation between lord and tenant had its
origin not really in a gift of land made by the former
to the latter but in a submission made by the latter to
the former. I make bold to prefer this view, chiefly on
account of those trifling and indeed fictitious duties which
are constantly found in the Surveys^. They can only
have one meaning — that of ' recognitions^.' Trifling in
themselves, they establish the subordinate relation of one
owner to the other ; and although their imposition must
be considered from the formal standpoint of feudal law
as the result of a feoffment, it is clear that their real
foundation must often have been a submission to patronage.
The subject is a wide one and includes all kinds of free
tenure, communal as well as other. When a knight was
enfeoffed by a monastery in consideration of some infini
tesimal payment there might be several reasons for such
a transaction. The abbot may have thought it good policy
to acquire the support of a considerable person, he may
have been forced to give the land and only glad to obtain
some recognition, however trifling, of the gift ; or again, he
may have made a beneficial feoffment in return for a sum
of ready money paid by way of gersuma or fine, but he
may also have extended his supremacy over a piece of
land which did not belong to him originally at all. Even
in feudal times this could be done by means of a ficti
tious lawsuit ending in ' a final concord ' ; or even simply
by an instrument of quit claim and feoffment without any
1 R. H. ii. 349, 350 : ' In Weston, Bucks, the service of the villain virgater
is estimated at 5s. 2d. . . . Elyas Clericus tenet dim. ¦virgatam et reddit
Johanni de PatishuU i d. Willelmus fil. Willelmi de Ravenestone tenet dim.
virgatam de eodem feodo et reddit per annum i d. Thomas Acpelard tenet
dimidiam virgatam terre et reddit dicto WUlelmo de Nodaris 3 d. Stephanus
Elys tenet dimidiam virgatam et solvit eodem WUlelmo 2d. Thomas Thebaud
tenet dimidiam virgatam et reddit eidem WiUelmo id.... Item Robertus le
Cobeler tenet dimidiam virgatam terre et solvit eodem i libram cimini.
Omnes isti prescripti dant per annum forinsecum et scutagium domino
WiUelmo de Nodaris quando currit.' Cf Torrington, Bucks, R. H. u. 352.
' R. H. ii. 713 (Stanton, Oxon.) : 'ad alternacionem cujuslibet domini de
Stanton debet recognoscere eundem dominum de uno spervario et dabit
dimidiam marcam eidem domino.'

CHAP.IV] ^oftemm a0 ^U^^U^biV0, 349
suit ^ At the time when feudalism was only settling itself,
in the twelfth and thirteenth centuries, this must have been
a common thing, even if we do not take into account the
Saxon practice of ' commendation.'
However this may be, .the trifling duties imposed on
freeholds lead to the inference that the agreement between
lord and tenant had been made on the basis of the latter's
independent right ^"d not on that of the lord's will and
power. They testify to a subjection of free people and
not to the liberation of serfs. And as they are found
constantly allied with shareholding, we have to say that
they imply manorial relations superimposed on a com
munity which, if not entirely free, contained free elements
within it. The manorial duties are more varied and
capricious than are the shares just because they are a
later growth.
I should not like to leave this intricate inquiry without
testing its results by yet another standard. I have been
trying to prove two things : that some of the feudal free
holds are ancient freeholds, not liberated from servitude
but originally based on the recognised right of the holders ;
that such ancient freeholds were included in the communal
arrangement of ownership, although the assessment of
their duties was not communal. To what extent are these
propositions supported by an analysis of that admittedly
ancient tenure, the tenure of the socmen ? We must look
chiefly to the ' free ' socmen ; but I may be allowed, on the
strength of the chapter on Ancient Demesne, to take the
bond socmen also into account
Let us take the manor of Chesterton, in Cambridgeshire I
It is royal, but let out in feefarm to the Prior of Barnwell,
and its men make use of the parvum breve de recto. There is
one free tenant of eighty-eight acres holding de antiquitate
and the Scholars of Merton hold forty-four acres freely. They
have clearly taken the place of some freeman, whether by
purchase or by gift I do not know ; they are bound to perform
ploughings and to carry corn. Both tenements are worthy
^ See e. g. Ramsey Cartul. i. 138, 142. » R. H. ii. 402, 403.

350 ZU ^otb—^^vx>Ant0—SvuZ^nAnt0, [Essayil
of notice because charters are not mentioned and still the
holdings are set apart from the rest. In the one case the
tenure is expressly stated to be an ancient one, and pre
sumably the title of the other tenement is of the same
kind. The number of acres is peculiar and points to some
agrarian division of which eighty-eight and forty-four were
fractions or multiples. The bulk of the population are
described as customers. They used to hold half-virgates,
it is said, but some of them have sold part of their land
according to the custom of the manor. And so their tene
ments have lost their original regularity of construction,
although it seems possible to fix the average holdings at
twelve or fifteen acres. Anyhow, it is impossible to reduce
them to fractions of eighty-eight ; for some reason or
another, the reckoning is made on a different basis. The
duties vary a good deal, and it would be even more difficult
to conjecture what the original services may have been
than to make out the size of the virgate.
The example is instructive in many ways. It is a
stepping-stone from villainage to socage, or rather to
socman's tenure. There can be no question of differences
of feoffment The manorial power is fully recognised,
and on the other hand the character of ancient demesne
is also conspicuous with its protection of the peasantry.
And still the whole fabric is giving way — the holdings
get dispersed and the service loses its uniformity. All
these traits are a fair warning to those who argue from
the irregularity of free tenements and the inequality of
their rents against the possibility of their development out
of communal ownership. Here is a well-attested village
community ; its members hold by custom and have not
changed their condition either for the better or for the
worse in point of title. Later agencies are at work to
distort the original arrangement — a few steps more in that
direction and it would be impossible to make out even the
chief lines of the system. Stanton, in Cambridgeshire, is
a similar case \ I would especially direct the attention of
1 R. H. ii. 466. Cf. 609.

Chap.iv.] ^XU i^XtA,Att0. 351
the reader to the capricious way in which the services are
assessed. And still the titles of the tenants are the result
not of various grants but of manorial custom applied to the
whole community. I repeat, that irregularity in the size
of holdings and in the services that they owe is no proof
that these holdings have not formed part of a communal
arrangement or that their free character (if they have a
free character) must be the result of emancipation ; these
irregularities are found on the ancient demesne where
there has been no enfranchisement or emancipation,
and where on the other hand the tenants have all along
been sufficiently ' free ' to enjoy legal protection in their
holdings. If we have to say so much with regard to ancient demesne
and bond socmen, we must not wonder that free socmen
are very often placed in conditions which it would be
impossible to reduce to a definite plan. On the fee of
Robert le Noreys, in Fordham ^, we find some scattered
free tenants burdened with entirely irregular rents, four
villains holding eighteen acres each and subjected to hea'vy
ploughing work, three socmen of twenty acres each paying
a rent of 4^. Q,d. per holding, and obliged to assist at reap
ing and to bring chicken, one socman of nine acres paying
10^., one of seven acres also assessed at lod., two of eleven
acres paying i^d., etc.
It is no cause for wonder that such instances occur at the
end of the thirteenth century. It is much more wonderful
that, in a good many cases, we are still well able to perceive
a great deal of the original regularity. Swaffham Prior,
in Cambridgeshire, is a grand example of an absolutely
regular arrangement in a community of free socmen ^.
The Prior of Ely holds it for three hides and has 330 acres
on his home-farm. The rest is divided among sixteen free
socmen paying ^s. each and performing various labour ser
vices. These services have been considerably increased by
the Prior. Mixed cases are much more usual — I mean
cases in which the original regularity has suffered some
1 R. H. ii. 502. 2 R. H. ii. 484, 485-

352 ZU &otb—^6vvAn(0—S^^^Z^nAnt0, [essayii.
modifications, though a little attention will discover traces
of the ancient communal arrangement ^.
On the whole, I think that the notices of socmen's
tenure in the Hundred Rolls are especially precious, because
they prove that the observations that we have made as
regards freehold generally are not merely ingenious sug
gestions about what may conceivably have happened.
There is undoubtedly one weak point in those observa
tions, which is- due to the method which we are compelled
to adopt. It is difficult, if not impossible, to classify the
actual cases which come before us, to say — in this case
freehold is the result of commutation, in that case the lord
has enfeoffed a retainer or a kinsman, while in this third
case, the freehold virgate has always been freehold. The
edge of the inquiry is blunted, if I may so say, by the
vagueness of terminological distinctions, and we must
rely upon general impressions. The socman's tenure, on
the contrary, stands out as a clear case, and a careful
analysis of it abundantly verifies the conclusions to which
we have previously come by a more circuitous route.
It seems to me that the general questions with which
we started in our inquiry may now be approached with
some confidence. The relation of free tenancies to the
manorial system turns out to be a complex one. The
great majority of such tenements appears as a later growth
engrafted on the system when it was already in decay.
Commutation of services, the spread of cultivation over the
waste, and the surrender of portions of the demesne to the
increasing dependent population, must largely account
for the contrast between Domesday and the Hundred
Rolls. But an important residue remains, which must
be explained on the assumption that in many cases
the shares of the community were originally distributed
among free people who had nothing or little to do with
manorial work.
Three conclusions have been arrived at in this chapter.
I. The home-farm, though the necessary central unit of
' R. H. 469, 470, 475.

Chap.iv.] Mncknt SxuUib0, 353
the manorial group, did not, as a rule, occupy a large area,
and the break-up of feudalism tended to lessen its extension
in favour of the dependent population.
3. The peculiar feature of medieval husbandry — the
grouping of small households round an aristocratic centre
—entailed the existence of a large class engaged in col
lecting revenue, superintending work, and generally con
ducting the machinery by which the tributary parts were
joined with their centre.
3. The position of free tenements within the manor may
be ascribed to one of three causes : {a) they have been
the tenements of serfs, but, in consequence either of some
general commutation or of special feoffments, they have
become free ; or {b) their connexion with the manor has
all along been rather a matter of jurisdiction than a matter
of proprietary right, that is to say, they form part of the
manor chiefly because they are within the scope of the
manorial court ; or {c) they represent free shares in a
village community upon which the manorial structure has
been superimposed.

VOL. I. A a

CHAPTER V.

the MANORIAL COURTS.
The vil- The communal organisation of the village is made to
munity" subservc the needs of manorial administration. We feel
naturally inclined to think and to speak of the village
community in opposition to the lord and to notice all
points which show its self-dependent character. But in
practice the institution would hardly have lived such a
long life and played such a prominent part if it had acted
only or even chiefly as a bulwark against the feudal
owner. Its development has to be accounted for to a
great extent by the fact that lord and village had many
interests in common. They were natural allies in regard
to the higher manorial officers. The lord had to manage
his estates by the help of a powerful ministerial class,
but there was not much love lost between employers and
administrators, and often the latent antagonism between
them broke out into open feuds. If it is always difficult
to organise a serviceable administration, the task becomes
especially arduous in a time of undeveloped means of
communication and of weak state control. It was ex
ceedingly difficult to audit accounts and to remove bad
stewards. The strength and self-government of the village
group appeared, from this point of view, as a most welcome
help on the side of the owner \ He had practically to
' A good specimen of the accusations which might be made against a
manorial agent is afforded by the Court-roUs of the Abbey of Ramsey.
Seld. Soc. ii. p. 95.

Botb Anb (ptffage. 355
surrender his arbitrary power over the peasant population
and their land, he had to conform to fixed rules as to civil
usage, manorial claims and distribution of territory; but
the common standards established by custom did not only
hamper his freedom of disposition, they created a basis
on which he could take his stand above and against his
stewards. He had precise arrangements to go by in his
supemsion of his ministers, and there was something
more than his own interest and energy to keep guard over
the maintenance of these forms : the village communities
were sure to fight for them from beneath. The facilities
for joint action and accumulation of strength derived from
communal self-government vouched indirectly for the
preservation of the chief capital invested by the lord in the
land : it was difficult for the steward to destroy the econo
mic stays of the villainage.
There are many occasions when the help rendered by The vUlage
the village communities to the lord may be perceived ^an^fai
directly. I need hardly mention the fact that the surveys, officers.
which form the chief material of our study, were compiled
in substance by sworn inquests, the members of which
were considered as the chief representatives of the com
munity, and had to give witness to its lore. The great
monastic and exchequer surveys do not give any insight
into the mode of selection of the jurors : it may be guessed
with some probability that they were appointed for the
special purpose, and cho.sen by the whole court of the
manor. In some cases the ordinary jurors of the court, or
chief pledges, may have been called upon to serve on the
inquest. There is another point which it is impossible to
decide quite conclusively, namely, whether questions about
which there was some doubt or the jurors disagreed were
referred to the whole body of the court. But although we
do not hear of such instances in our great surveys, it is
surely an important indication that the extant court-rolls
constantly speak of the whole court deciding questions
when the verdict of ordinary jurors seemed insufficient.
And such reserved cases were by no means restricted
A a 3

356 ZU ^AnOtXAt tO}XVt0, [Essay IL
to points of law ; very often they concerned facts of the
same nature as those enrolled in the surveys^.
Village On a parallel with the stewards and servants appointed
by the lord, although in subordination to them, appear
officers elected by the village. As we have seen, the
manorial beadle was matched by the communal reeve, and
a like contrast is sometimes found on the lower degrees ^-
In exceptional cases the lord nominates the reeve, although
he still remains the chief representative of village in
terests and the chief collector of services. But in the
normal course the office was elective, and curious inter
mediate forms may be found. For instance, the village
selects the messarius (hayward), and the lord may appoint
him reeved This is a point, again, which shows most
clearly the intimate connexion between the interests of
the lord and those of the village. The peasants become
guarantors for the reeve whom they chose. A formula
which comes from Gloucester Abbey requires, that only
such persons be chosen as have proved their capacity to
serve by a good conduct of their own affairs : all short
comings and defects are to be made good ultimately by
the rural community that elected the officer, and no
excuses are to be accepted unless in cases of exceptional
hardship *. The economic tracts of the thirteenth century
state the same principle in even a more explicit manner.
Communal From the manorial point of view the whole village is
"^ " ^' responsible for the collection of duties. There are pay-
' Seld. Soc. ii. 22 ; ' Et dicit curia quod tenementum et una acra servilis
condicionis sunt et una acra libere.'
^ Coram Rege, Pascha 9 Edw. I, 34, 6 : ' Messarius abbatis et messarius
viUate.' ' Okeburn Inqu. 56 (Add. MSS. 24316) : ' Eligere debent unum messarium
de se ipsis et domini de ipso electo poterant facere prepositum.'
* Gloucester Cart. iii. 221 : ' Prepositus eligetur per communitatem hali-
moti qui talem eligaiit qui ad suam terram propriam excolendum et cetera
bona sua discrete et circumspecte tractanda idoneus merite notatur et habeatur,
pro cuius defectibus et abmittendis totum halimotum respondeat, nisi ubi
urgens necessitas aut causa probabilis Ulud halimotum coram loci ballivo
rationabilem praetendere poterit excusationem.' Cf Walter of Henley,
ed. Lamond, pp. 10, 64, 66.

Chap.v.] (^HiACit Anb Qtlanot. 357
ments expressly imposed on the whole. Such is the case
with the yearly auxilium or donum. The partition of
these between the householders is naturally effected in a
meeting of the villagers ^. Most services are laid on the
virgaters separately. But they are all held answerable for
the regularity and completeness with which every single
member of the community performs his duties. As to
free holdings, it is sometimes noticed especially to what
extent they are subjected to the general arrangement :
whether they participate with the rest in payments, and
whether the tenants have to work in the same way as the
villains ^. Very often the documents point out that such
and such a person ought to take part in certain obligations
but has been exempted or fraudulently exempts himself
and that the village community has to bear a relative in
crease of its burdens^. A Glastonbury formula orders
the steward to make inquiries about people who have been
freed from the performance of their services in such a way
that their responsibility has been thrown on the village*.
But it would be very wrong to assume that the rural
community could act only in the interest of the lord.
Its solidarity is recognised in matters which do not con
cern him, or even which call forth an opposition between
him and the peasantry.
I have already spoken of the curious fact that the village Village and
is legally recognised as a unit, separated from the manor ™^"°'^-

' Seld. Soc. ii. 12 : ' Nicholaus filius sacerdotis . . . et Robertus de Mage-
done ... in misericordia quia contradixerunt tallagium quod positum fuit
super eos per vicinos suos.' Glastonb. Inqu. of 1 189, p. 33 : ' Totum
manerium reddit de dono 73 soUdos et 4 den. sicut homines viUe illud
statuunt.' ^ Ramsey Cart. i. 401 : ' Sunt in scot et in lot et in omnibus cum vUlata.'
Spalding Priory Reg., Cole MSS. xliu. p. 283 : ' Libere tenens facit fossa
tum maris et omnes communas ¦ville secundum quantitatem bouatae.'
' Ramsey Cart. i. 398 : ' Henricus le Freman solebat esse in communa
vUlatae, ut in taUagio et sirailibus. Nulla inde facit.'- p. 394 (a vUlager
does not pay his part of the tallage), ' quod quidem tallagium tota ¦villata et
ad magnum ipsorum gravamen hucusque persolvit.'
' Glastonbury Cart., Wood MSS. i. f iii : ' Si nul soit enfraunchi de ses
ouvrages dont la ville est le plus charge.'

358 ZU (Wlanonaf £ottr^0. [Essayii.
although existing within it. When the reeve and the four
men attend the sheriff's tourn or the eyre, they do not
represent the lord only, but also the village community.
Part of their expenses are borne by the lord and part by
their fellow villagers ^. The documents tell us of crafts
men who have to work for the village as well as for the
lord ^. On a parallel with services due to the landowner,
we find sometimes kindred services reserved for the village
community^ If a person has been guilty of misde
meanours and is subjected to a special supervision, this
supervision applies to his conduct in regard both to the
lord and to the fellow villagers *. No doubt the relations
of the village to its lord are much more fully described
in the documents than the internal arrangement of the
community, but this could not be otherwise in surveys com
piled for the use of lords and stewards. Even the chance
indications we gather as to these internal arrangements
are sufficient to give an insight into the powerful ties of
the village community.
The village Indeed, the rural settlement appears in our records as a
pereon"^ '^ ' juridical person.' The Court Rolls of Brightwaltham,
edited for the Selden Society by Mr. Maitland, give a
most beautiful example of this. The village of Bright
waltham enters into a formal agreement with the lord of
the manor as to some commons. It surrenders its rights
to the lord in regard to the wood of Hemele, and gets
rid in return of the rights claimed by the lord in Est-
' Add. MSS. 6159, f' 25, b : ' Dominus debet invenire duos homines sump
tibus suis coram eisdem justiciariis et viUata de Rode sumptibus suis tres
homines invenient. Et hoc per consuetudinem a tempore quo non extat
memoria ut dicitur.' Ct Domesday of St. Paul's, 15 : ' Alanus fUius Alex-
andri de Cassingburne tres virgatas pro 20 soUdis et preter haec 10 acras de
villata et 10 de dominico propter sectam sire et hundredi quam modo non
facit.' " Custumal of Bleadon, 257 : ' Invenit fabrum pro ferdello domino et toti
villae.' * Shaftesbury Cart., Hari. MSS. 6iV4 63i ' Ibit ad scotaliam Nomine sicut
ad scotaliara vicinorum."
* Ramsey Cart. i. 425 : ' Ponitur in respectu quousque videatur quomodo
se gerat versus dominum abbatem et suos vicinos.'

Chap.v.] (^Hh^i^ Anb Boxb. 359
field and in a wood called Trendale^. Nothing can be
more explicit: the village acts as an organised community :
it evidently has free disposition as to rights connected with
the soil ; it disposes of these rights not only independently
of the lord, but in an exchange to which he appears as
a party. We see no traces of the rightless condition of
villains which is supposed to be their legal lot, and a
powerful community is recognised by the lord in a form
which bears all the traits of legal definition. In the
same way the annals of Dunstable speak of the seisin of
the township of Toddington^, and of a feoffment made
by them on behalf of the lord.'
I have only to say in addition to this summing up of the
subject, that the quasilegal standing of the villains in
regard to the lord appears with special clearness when
they stand arrayed against him as a group and not as
single individuals. We could guess as much on general
grounds, but the self-dependent position assumed by the
' communitas villanorum ' of Brightwaltham is the more
interesting, that it finds expression in a formal and re
corded agreement.
' Seld. Soc. ii. 172 : ' Ad istam curiam venit tota communitas villanoram
de Bristwalton et de sua mera et spontanea voluntate sursum reddidit domino
totum jus et clamium quod idem villani habere clamabant racione commune
in bosco domini qui vocatur Hemele et landis circuraadjacentibus, ita quod
nee aliquid juris vel claraii racione commune in bosco predicto et landis
circuraadjacentibus exigere, vendicare vel habere poterint in perpetuum.
Et pro hac sursum reddicione remisit eis dominus de sua gracia speciali
communara quam habuit in campo qui vocatur Estfeld,' etc.
' Annals of Dunstable (Annales Monast.) iii. 379, 380 : 'Et prior dicit,
quod praedicta tenementa aliquo tempore fuerunt in seisina hominura viUate
de Thodingdone, qui quidem homines, unanimi voluntate et assensu, feo-
faverant praedictum Simonera, praedecessorem praedicti prioris, de prae
dictis tenementis, tenendum eidera Simoni et successoribus suis in perpetuum.
Jurati dicunt . . . quod praedicta tenementa aliquo tempore fuerant in seisina
praedictoram hominum viUatae de Thodingdone et quod omnes Uli, qui aliquid
habuerant in praedictis duabus placiis terrae, congregati in uno loco ad
quandam curiam apud Thodingdone tentam, unanimi assensu concesserant
praedicto Syraoni, quondam priori de Dunstaple, praedecessori prioris nunc,
praedictas placeas terrae, cum pertinentiis, tenendum eidem et successoribus
suis in perpetuum, reddendo inde eisdera hominibus et coram haeredibus per
annum sex denarios temporibus falcacionis prati.'

36o ZU (Hj^cinovxAt to\xvt0, c^ssayh.
The village We catch a glimpse of the same phenomenon from
as a farmer. ^^^ another point of view. It is quite common to
find entire estates let to farm to the rural community
settled upon them ^- In such cases the mediation of the
bailiff might be dispensed with ; the village entered into
a direct agreement with the lord or his chief steward and
undertook a certain set of services and payments, or
promi.5ed to give a round sum. Such an arrangement was
profitable to both parties. The villains were willing to
pay dearly in order to free themselves from the bailiff's
interference with their affairs ; the landowner got rid of a
numerous and inconvenient staff of stewards and servants ;
the rural life was organised on the basis of self-government
with a very slight control on the part of the lord. Such
agreements concern the general management of manors as
well as the letting of domain land or of particular plots
and rights ^. Of course there was this great disadvantage
for the lord, that the tie between him and his subjects was
very much loosened by such arrangements, and sometimes
he had to complain that the conditions under which the
land was held were materially disturbed under the farmer-
ship of the village. It is certain, that in a general way
this mode of administration led to a gradual improvement
in the social status of the peasantry.
One great drawback of investigations into the history
• Madox, Firma Burgi, 54, f : ' . . . statim visis litteris capiat in manum
Regis maneria de Cochame et Bray, quae sunt in manibus hominum prae
dictoram maneriorara, et salvo custodiat, ita quod deinceps Regi possit re
spondere de firma praedictorum maneriorum ad scaccarium.' 54, g:
' Miraraur quamplurimura quod 30s. quos raonachi de Lyra de elemosyna
nostra constituta singulis annis per manus ballivorum viUae vestrae, ante
quam predictam villam caperitis ad firmam recipere.' Cf Exch. i. 407, a,
412, b ; Rot. Hundr. ii. 134 : ' Benmore juxta Langport fuit de dominico
domini Regis pertinens ad Sumerton ubi omnes homines domini Regis de
Sumerton, Sutton, Puttem et Merne solebant communicare cum omnimodis
averiis suis, set per negligenciam viUanorum de Sumertone qui manerium
tunc temporis ad firmam tenuerant et Henricus de Urtiaco vetus eandem
moram sibi appropriavit."
" Gloucester Cart. iii. 181 : ' Omnes isti villani tenent de dominio quod
dam pratum quod vocatur Hay continens 23 acras et reddunt inde per annum
23 solidos 3 denarios.'

chap.v] Communaf dRc^ion. 361
of medieval institutions consists in the very incomplete The village
manner in which the subject is usually reflected in the cultural
documents. We have to pick up bits of evidence as to ^g^"f ^'
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, sur
renders, admittances, are of rare occurrence on some of the
more ancient rolls, and the probable reason .is, that they
were not thought worthy of enrolment ^. ^ As for par
ticulars 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 questions^.
And so our knowledge of these institutions must be based
largely on inference. But even granting all these imper
fections of the material, it must be allowed that the one
side of manorial life which is well reflected in the docu
ments — the juridical organisation of the manor — affords
very interesting clues towards an understanding of the
system and of its origins.
Let us repeat again, that the management of the manor Collegiate
is by no means dependent on capricious and onesided ^nd s"i"no-
expressions of the lord's will. On the contrary, every rial power.
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
' ct Prot Maitland's Introduction to the rolls of the Abbey of Ramsey.
Seld, Soc. ii. 87.
' See the record of proceedings in the Court of the manor of Hitchin,
printed by Mr. Seebohm at the end of his volume on the ' VUlage Com
munity. '

362 ZU QUanoHaP towt0. [Essayil
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 organisa
tion of its parts as by their monarchical exterior. The
manorial courts were really meetings of^the village com
munity under the presidency of the lord or of his steward.
ViUage It is well kuown 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 ^f the conveyancmg and
the petty litigation between thern,, and also with the exer
cise 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 Rolls ^. The foundation of the court was
laid by the frank -pledge system and the necessity of
' Introduction to Seld. Soc. ii. p. xvi.

CHAP.V] S^Anhpkb^t. 3^3
keeping it in working order. We find the Leet Court
sometimes under the names ' Curia Visus franci plegii,' or
'Visus de borchtruning ^,' 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 plegii ^.' Sometimes the
tithing coincides with the township, is formed on a terri
torial basis, as it were, so that we may find a village called
a tithing ^. 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 ten *.
As to attending the meeting, a general rule was enforced View of
to that effect, that the peasantry must attend in person pledge
and not by reason of their tenure ^ 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 frequent". Besides the women and children, the
personal attendants ofthe lord get exempted, and also shep
herds, ploughboys, and men engaged in driving waggons
laden with corn. Servants and aliens were considered as

' Add. MSS. 6159, t 54, a : ' Visus de borchtruning.'
' Gloucester Cart. in. 221 ; Malmesbury Cart. ii. 17. Ct Kovalevsky,
' History of police administration in England' (Russian), 137.
' Glastonbury Inqu. of 1189, p. loi : ' De tidinga Estone 5 solidos vel
placita que orientur.' Ct. Maitland, Introduction to Seld. Soc. ii. pp. xxx,
xxxiii. * Rot. Hundr. ii. 461, b : ' Et predicti Radulfus et Robertus habent suas
duodenas.' ' Y. B. 21-22 Edw. I, 399 : ' Presence a vewe de franc pledge demande
par la reson de la persone, non de la tenure.'
' Glastonbury Cart., Wood MSS. i. f 100, b : ' Predictus Abbas consensit
quod omnes homines eorum de predictis villis qui fuerint duodecim annorum
et amplius faciant sectam ad predictum hundredum bis in annis perpetuum
. . . exceptis omnibus bercariis, carrucariis predictarum villarum et carrectariis
cuiuscumque hominis fuerint et omnibus aliis hominibus tam de predictis
vUHs quam aliunde qui sunt de manupastis ipsius abbatis qui nuUam sectam
facient ad predictum hundredum nisi ibidem fuerint implacitati vel alios im-
placitent.'

364 zu QHanotriaf tomt0, [e^say h.
under the pledge of the person with whom they were
staying.
Communal The aim of its whole arrangement was to ensure the
accusation. jjja.intenance 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 .peace ^. It is natural that such a meet
ing 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 juris
diction 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 clearly ^.
Court The questions as to the opposition between Court
cust°omTry Baron and Customary Court are more intricate and more
court. 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
' Glastonbury Cart., Wood MSS.i. fii2: '. ..ne soit a la peis le roi come
tere tenaunt en diseine ou en fraunche pleivine.' tin:' Serment de ceux qui
entrent en diseine . . . ne celeras chose qe apent a la pei le roi de engleterre.'
^ Introduction to Seld. Soc. ii. p. xvui.

Chap.v.] ZU ^AHmOt, 3^5
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 one\ 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 sokemen ^, 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 exer
cise a certain influence on the adjoining counties. How
ever 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.
It met generally once every three weeks, but it happens The halimot.
' Seld. Soc. ii. p. Ixx.
' Rot. Hundr. ii. 143 ; ' Ermoldus de Boys dominus de Asynton solebat
facere sectam ad Boxford ad Sockomanemot pro terra Ricardi Serle in
Cornerche, nunc Ula secta subtracta per 4 annos.' The expression ' frank-
halimote ' occurs often, but it is evidently an equivalent to ' libera curia,'
and interchanges vyith 'liberum manerium.' See Rot. Hundr. u. 69, 74,
127.

366 ZU QUanotriaf ^outr^0. [e^^*^ ^^
sometimes that it is called together without a definite
limit of time at the pleasure of the lord ^. 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 Broughton ^. The common suitors are
the peasants living within the manor — the owners of hold
ings 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 court ^. These foreign
suitors appear once every six weeks, twice a year, for
special trials upon a royal writ, for the hanging of
thieves* etc. The duty of attending the court is con
stantly mentioned in the documents. It involved un
doubtedly great hardships, expense, and loss of time : no
wonder that people tried to exempt themselves from it as
much as possible^. 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 midnight^. When a
holding was divided into several parts, the most common
thing was that one suit remained due from the whole'.
' Eynsham Inqu., Christ Church MSS. 15, a : ' Curia debet ibi teneri si
dominus voluerit.'
' Seld. Soc. ii. 49, etc.
' BeauUeu Cart., Harl. MSS. 748, t 113 : ' De sectatoribus intrinsecis . . .
et qui habent terram in campis . . . et ad forciamentum curie omnes predicti
tam liberi quam alii cum 12 burgensibus vel pluribus venient ad curiam per
racionabilem suramonicionem.' Glastonb. Cart., Wood MSS. i. loi, d :
' Ipse et heredes et homines sui de Acforde facient bis in anno sectam ad
hundredum abbatis de Njrwentone et ad afforciamentum curie.'
' Rot. Hundr. ii. 710, a; Ramsey Cart. i. 491.
^ Warwick Hundred RoU, Exch. Q. R. Misc. Books, 29, p. 10 : ' Quidam
de tenentibus dicunt quod nunquam fecerant sectam.'
* Gloucester Cart. ui. 208.
' Chapterhouse Box 152, No. 14 : ' Hereditas de qua una secta de
betur.'

Chap.v.] ZU ^^ftmOt 3^7
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
The procedure of the halimot was ruled by ancient Procedure
custom. All foreign elements in the shape of advocates haUmot.
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 con
ducted and judged according to their substance ^. Another
ceremonial peculiarity of some interest concerns the place
where manorial courts are held. It is certain that the
ancient gem6ts 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 MotstowehilP.
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 court ^ Indeed, the very name of ' halimot '
can hardly be explained otherwise than as the moot
held in the hall*. The point is of some interest,
because the haU is not regarded as a purely material
contrivance for keeping people protected against the cold
' Ramsey Cart. i. 412 : ' Prohibitum est in plena curia, ne quis ducat placi-
tatores in curiam abbatis ad impediendum vel prorogandum judicium domini
Abbatis.' Gesta Abbatum (St. Alban's), 455 : ' Non permittatur quod in
halimotis adventicii placitatores partes cum soUemnitate sustineant sed com
muniter per bundos (i. e. bondos) de curia Veritas inquiratur, sine callumnia
verboram.' ^ Stoneleigh Reg. t 75 : ' Curia de Stonle ad quam sokemanni faciebant
sectam solebat ab antiquo teneri super montem iuxta villam de Stonle voca-
tam MotstowehuU, ideo sic dictum quia ibi placitabant sed postquam abbates
de Stonle habuerunt dictam curiam et libertatem pro aysiamento tenendum
et sectatoram fecerunt domum curie in medio ville de Stonle.'
* Selden Soc. ii. p. 67.
* Introduction to Seld. Soc. vol. ii. p. 76.

ments.

368 ZU (Wlanomf £ottt:^0. [Essayii.
and the rain, but appears in close connexion with the
manor, and as its centre and symbol.
The We hear very little of husbandry arrangements made by
and agri- *^^ courts ^, and even of the repartition of duties and
culture. taxes ". Entries relating to the election of officers are
more frequent ^ but the largest part of the rolls is taken
up by legal business of all sorts.
Present- The entire court, and sometimes a body of twelve jurors,
present those who are guilty of any offence or misde
meanour. Ploughmen who have performed their plough
ing 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 Jhe Jnterests of
the lord is not punished by any onesided act of his will,
or by the command of his steward, butjreated 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 wayjhat Jhe 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 Bee 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
'¦ The Durham halimot books (Surtees Society) supply some instances.
" Glastonbuiy Inqu. of 1189, p. 33 : ' De dono 73 sohdos sicut homines
ville illud statuunt.'
' Selden Soc. ii. 36, 168.

chap.v] tmi 3[tttri0^{c^ion. 369
ont he lord's land, to wit William Cobbler, Maud Robins,
widow (fined lid.), John Shepherd (fined lad.) . . . There
fore they are in mercy ^.' 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 pre
siding 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 feature^. 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 Bec^ It is hardly neces
sary 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.
The characteristic mixture of different elements which Civil juris-
we notice in the criminal jurisdiction of the manorial "^ '°"'
court may be seen also if we examine its civil jurist
diction. 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
' Selden Society, vol. ii. 6, 7, 8.
' Ibid. 31 ; ' Johannes Smert , . . Henricus Coterel maritavit se sine
licencia domini, ideo distringantur ad faciendum voluntatem domini.'
' Ibid. p. 44 : ' Postea taxata fuit dicta misericordia per Rogerum de Suht-
cote, Willelmum de Scaccario, Hugonem de Cumbe liberos sectatores curie
usque ad duas marcas.'
VOL. I. B b

37° ^^e (WlanomI? £;our^0. [essayil
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 rela
tive 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. Inquisi
tions are made and juries formed quite as much to
establish the_ jurisprudence qf the court as to decide
who has the better claim under the _said jurisprudence.
Theoretically it is the full, court which is appealed tOj
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 can
not 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 procedure^ 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 postponed ^. I have to endorse one more
' Introduction to Seld. Soc. ii. p. Ixv.
' Ibid. pp. 163, 166.

CHAP.V] ^tttrrenietr Anb 3^bmittAnu, 37 1
point of Mr. Maitland'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 pre
senters 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.
The conveyancing entries, although barren and mono- Surrender
tonous at first sight, are very important, in so far as they Omittance.
show, better perhaps than anything else, the part played
by the community and by its testimony in the trans
mission 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.
To begin with the legal transmission of a free holding, Meaning of
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 show
ing that the true owner re-entered into the exercise of
his right, and every act of homage for land was connected
B b 3

372 ZU QtlanomP £;out:(0. [essayh
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 clai-ms of ser
vice 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 preca-*
rious 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 per
sonal concession quite as much as did the base tenure, and
that this fundamental notion made itself felt both in con
veyancing formalities and in practical claims.
The rod I am even inclined to go further : it seems to me that
festuca. t^^ manorial ceremony of surrender and admittance, as
considered from the point of view of legal archaeology,
may have gone back to a practice which has nothing to
do with the lord's ownership, although it was ultimately
construed to imply this notion. The tenant enfeoffed, of
his holding on the conditions of base tenure was techni
cally 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
ofthe 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 Frank--
ish 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 representa-

CHAP.V] ZU ^^m6oftc (^oi. 373
tive of lordship or ownership, but the necessary middleman
prescribed by customary law, in order to give the trans
action its consecration against all claims of third persons.
The Salic law, in its title ' de affatomire,' presents the cere
mony 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 rod ^.
The English practice has swerved from the original, be
cause 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 supposi
tion 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 abso
lute ownership, while the peasants at both ends are re
stricted to mere occupation on sufferance ^ ? Is it necessary
' Comp. Heussler, Institutionen des deutschen Privatrechts, i. 215 ; ii.
622 ; but I cannot agree with him as the ceremony being employed only
where therewas to be a 'donatio mortis causa.' In connexion with this
the part played by the Salman is misunderstood, as it seems to me.
' The court rolls of Common Law manors do not think it necessary to
give the particulars about the transmission of the rod. But the description
of the practice at Stoneleigh, which, though ancient demesne, presents

374 ^^e QUanomf Cour^0. [Essayil
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 genera
tions use their symbols mechanically, they do not invent
them at haphazard. Symbols and ceremonies are but out
ward expressions of ideas, and therefore their combinations
are ruled by a certain logic and are instinct with mean
ing. 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 Prankish
form should be found prevalent in the customary arrange
ment 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 Prankish law^, 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 Prankish practice of ' affatomire,' to the feudal cere
mony of surrender and admittance by the steward.
The court And now let us take up the second thread of our inquiry
into the manorial forms of conveyancing. A tenant by
the verge is also a tenant by copy of court roll. The
steward who presided at the court had to keep a record
of its proceedings, and this record had a primary import
ance for the servile portion of the community. While the
free people could enter into agreements and perform legal
acts in their own name and by charter, the villains had to
manorial customs of the same character as those foUo-wed on ordinary estates,
leaves no doubt as to the course of the proceedings. See above the passage
quoted on pp. 113-6. Comp. a parallel ceremony as to freehold, Madox,
Formulare, p. 54. The instance has been pointed out to me by Prot Maitland.
^ See Pollock, Land-laws, 199, 208 (2nd ed.).

CHAP.V] ZU tovLvt (goit 375
content themselves with ceremonial actions before the
court They were faithful in this respect to old German
tradition, while the privileged people followed precedents
which may be ultimately traced to a Roman origin. The
court roll or record of manorial courts enabled the base
tenant to show, for instance, that some piece of land was
his although he had no charter to produce in proof of
his contention. And we find the rolls appealed to con
stantly in the course of manorial litigation ^. But the
rolls were nothing else than records of actions in the court
and before the court. They could actually guide the de
cision, but their authority was not independent ; it was
merely derived from the authority of the court. For this
reason the evidence of the rolls, although very valuable,
was by no means indispensable. A claimant could go
past them to the original fount, that is, to the testimony
of the court. And here we must keep clear of a mis
conception suggested by a first-sight analysis of the facts
at hand. It would seem that the verdict of neighbours,
to which debateable claims are referred to in the manorial
courts, stands exactly on a par with the verdicts of jury
men taken by the judges of the Royal Courts. This is
not so, however. It is true that the striving of manorial
officers to make the procedure of halimotes as much like
the common law procedure as possible, went far to pro
duce similarity between forms of actions, presentments,
verdicts and juries, in both sets of tribunals. But never
theless, characteristic distinctions remained to show that
the import of some institutions brought near each other
in this way was widely different I have said already that
the peasant suitors of the halimote are appealed to on
' Seld. Soc. ii. 33 ; insertion of a lease in the roll ; p. 35 : ' Lis conquievit
inter ipsos ita quod concordati fuerant in hac forraa de voluntate doraini et
in plena curia ita videlicet quod predictus WUlelmus de Baggemere concessit,
remisit et quietum clama^vit pro se et heredibus suis . . . et hoc paratus est
verificare per recordum rotulorum seu 12 juratores ejusdem curie per volun
tatem domini et senescalli.' p. 166 : ' Et sciatis quod si haberem ad manus
rotulos curie tempore WUlelmi de Lewes ego vobis certificarera et vobis
monstrarera multa mirabilia non opportune facta.'

37(> ^^e (ttlanoriaf £;ouv^0. [essayil
questions of law as well as on questions of fact. But the
most important point for our present purpose is this : the
jurors called to substantiate the claim of a party in a trial
are mere representatives of the whole court The testi
mony of the court is taken indirectly through their means,
and very often resort is had to that testimony without the
intermediate stage of a jury. Now this is by no means
a trifle from the point of view of legal analysis. The
grand and petty juries of the common law are means of
information, and nothing more. They forra no part of
the tribunal, strictly speaking ; the court is constituted by
the judges, the lawyers commissioned by the king, who
adopt this method in investigating the facts before them,
because a knowledge of the facts at issue, and an under
standing of local conditions surrounding them, is supposed
to reside naturally in the country where the facts have
taken place ^. Historically the institution is evolved from
examinations of witnesses and experts, and has branched
off in France into the close formalism of inquisitorial
process. The manorialjury, on the other hand, represents
the^court.and in^terchanges with it^. For this reason, we
may speak directly of the court instead of treating of its
delegates. And if the verdict of the court is taken, it is
not on account of the chance knowledge, the presumable
acquaintance of the suitors with facts and conditions, but
as a living remembrance of what took place before this
same court, or as a re-assertion of its power of regulating
the legal standing of the community. The verdict of the
suitors is only another form of the entry on the rolls, and
both are means of securing the continuity of an institution
and not merely of providing information to outsiders. Of
' These points have been conclusively settled by the masterly investiga
tions of Brunner, Zeugen- und Inquisitions-beweis (Abhandlungen der Wie
ner Akademie) and Entstehung der Schwurgerichte.
^ Seld. Soc. ii. 41 : ' Quod talis sit consuetudo manerii et quod dicta
Augnes sic venit in plena curia cum marito suo et totum jus et clamium
quod haberet vel aliquo modo habere poterit in toto vel in parte hujus bur-
gagii in manus domini ad opus ejusdem R. reddidit ponit super curiam . . . Et
12 juratores curie,' etc.

CHAP.V] tomm\nnAi Zt0timon^, 377
course, claims may not be always reduced to such elemen
tary forms that they can be decided by a mere reference
to memory, the memory of the constituted body of the
court. A certain amount of reasoning and inference may
be involved in their settlement, a set of juridical doctrines
is necessary to provide the general principles of such
reasoning. And in both respects the manorial court is
called upon to act. It is considered as the repositary of
legal lore, and the exponent of its applications. This
means that the court is, what its name implies, a tribunal
and not a set of private persons called upon to assist a
judge by their knowledge of legal details cr material
facts ^.
The whole exposition brings us back to a point of Communal
primary importance. The title by which land is held ac- ^' ""°"y-
cording to manorial custom is derived from communal
authority quite as much as from the lord's grant. Without
stepping out of the feudal evidence into historical inquiry,
we find that civiLarrangements of the peasantry are based
on jjcts_p^orjneilJhrQiJgb,th.e, agency of the steward, and
be£iaj:eJthe_manorial court, which has a voice in the matter
and yquches for its validity and remembrance. The 'full
court ' is noticed in the records as quite as necessary an
element in the conveyancing business as the lord and his
steward, although the legal theory of modern times has
affected to take into account only these latter^. Indeed,
' I do not mean to say that the analytical distinctions which we make
between fact and law, between presenters to a tribunal and assessors of a
tribunal, were clearly perceived or consequently carried out in the twelfth or
thirteenth centuries. On the contrary there was a good deal of confusion
in details, and the instinctive logic of facts had more to do in dividing and
settling institutions than conscious reasoning. Juries and assizes of the
Royal Courts might be caUed upon incidentally to decide legal questions,
but, in the aggregate, there can be hardly a doubt that the sworn inquests
before the Royal judges were working to provide the Courts with a know
ledge of local facts and perhaps conditions, while the manorial court gave
legal decisions.
' Seld. Soc. ii. 41 : ' Et 12 juratores curie . . . dicunt super sacramentum
suum quod predicta Agnes venit in plena curia et totura jus et clamium quod
aliquo modo habere potuit in dicto burgagio in manus domini reddidit.' 42 ;
' Et juratores . . . dicunt super sacramentura suum quod JuUana per quam

378 ZU (^(^^OVXAi tOWt0, [Essay IL
it is the part assumed by the court which appears as the
distinctive, if not the more important factor. A feoffment
of land made on the basis of free tenure proceeds from
the grantor in the same way as a grant on the conditions
of base tenure ; freehold comes from the lord, as well
as copyhold. But copyhold is necessarily transferred in
court while freehold is not. And if we speak of the pre
sentment of offences through the representatives of town
ships, as of the practice of communal accusation, even so
we have to call the title by which copyhold tenure is
created a claim based on communal testimony.
Courts on All the points noticed in the rolls of manors held at
demesne, common law are to be found on the soil of ancient
demesne, but they are stated more definitely there, and
the rights of the peasant population are asserted with
greater energy. Our previous analysis of the condition of
ancient demesne has led us to the conclusion, that it pre
sents a crystallisation of the manorial community in an
earlier stage of development than in the ordinary manor,
but that the constitutive elements in both cases are ex
actly the same. For this reason, every question arising in
regard to the usual arrangements ought to be examined
in the light of the evidence that comes from the ancient
demesne. We have seen that it would be impossible to maintain
that originally the steward was the only judge of the
manorial tribunal ; the whole court with its free and unfree
suitors participates materially in the administration of
justice, and its office is extended to questions of law as
well as to issues of fact. On the other hand, it was clear
that the steward and the lord were already preparing the
position which they ultimately assumed in legal theory,
dicta MatUdis petit hujusmodi messuagium nunquam fuit seisita de ipso me
suagio, set WUlelraus Ponfrayt maritus ipsius Juliane, unde secundum con
suetudinem manerii Juliana post mortem W. mariti sui nichil poterit clamare
nisi dotem in huiusmodi mesuagium nisi fuerit in plena curia una cum
marito suo de huiusmodi perquisito conjunctim seisita.' Cf. p. 40 : ' Unde
Willelmus pro premissis in plena curia recordatis et inrotulatis dat domino
10 solidos.'

CHAP.V] ZU ^ncknt ®eme0ne £;out:^0. 379
that in the exercise of their functions they were beginning
to monopolise the power of ultimate decision and to
restrict the court to the duty of preliminary presentment.
The same parties are in presence in the "court of ancient
demesne, but the right of the suitors has been summed
up by legal theory in quite the opposite direction. The
suitors are said to be the judges there ; legal dogmatism
has set up its hard and fast definitions, and drawn its
uncompromising conclusions as if all the historical facts
had always been arrayed against each other without the
possibility of common origins and gradual development.
Is it necessary to say that the historical reality was very
far from presenting that neat opposition? The ancient
demesne suitors are villains in the main, though privi
leged in many respects, and the lord and steward are
not always playing such a subordinate part that one may
not notice the transition to the state of things that exists
in common law manors. It is curious, anyhow, that later
jurisprudence was driven to set up as to the ancient de
mesne court a rule which runs exactly parallel to the
celebrated theory that there must be a plurality of free
tenants to constitute a manor. Coke expresses it in
the following way : ' There cannot be ancient demesne
unless there is a court and suitors. So if there be
but one suitor, for that the suitors are the judges, and
therefore the demandant must sue at common law, there
being a failure of justice within the manor ^.' We shall
have to speak of this rule again when treating of classes
in regard to manorial organisation. But let us notice,
even now, that in this view of the ancient demesne court
the suitors are considered as the cardinal element of its
constitution. The same notion may be found already in
trials of the fourteenth and even of the thirteenth century.
A curious case is reported in the Year Books of 11/13
Edw. Ill 2. Herbert of St. Quentyn brought a writ of false
' 4 Inst. 270, cap. 58.
' Y. B. 11/12 Edw. Ill (Rolls Ser.), p. 325, sqq. : '. . . les suters de
Cokam firent venir plein record ... les suiters agarderent seisine de terre

38o ZU QtlanoHaf to\ntt0. [Essayh.
judgment against John of Batteley and his wife, the judg
ment having been given in the court of Cookham, an
ancient demesne manor. The suitors, or suit-holders as
they were called' there, sent up their record to the King's
Bench, and many things were brought forward against the
conduct of the case by the counsel for the plaintiff, the
defendant trying to shield himself by pleading the custom
of the manor to account for all unusual practices. The
judges find, however, that one point at least cannot be
defended on that ground. The suitors awarded default
against the plaintiff because he had not appeared in
person before them, and had sent an attorney, who had
been admitted by the steward alone and not in full court*
Stonor, C. J., remarks, 'that it is against law that the
person who holds the court is not suffered to record an
attorney for a plea which will be discussed before him.'
The counsel for the plaintiff offer to prove that the
custom of the manor did not exclude an attorney ap
pointed before the steward, on condition that the steward
should tell it to the suitors in the next court after re
ceiving him. The case is interesting, not merely because
it exhibits the suit-holders in the undisputed position of
judges, but also because it shows the difficulties created by
the presence of the second element of the manorial system,
the seignorial element, which would neither fit exactly into
an entirely communal organisation nor be ousted from it ^,
. . . il firent faux judgement . . . Stonore : Cest usage est molt encontre
la ley, qe cesti qe doit tenir les plees ne poet pas recorder un attourne en
pie qe serra plede devant lui mesme. Trew: Nous voloms averer qe les
usages sont tiels, qe le seneschal de la court poet resceivir un attourne, issint
qil dei entre les suiters coment il ad resceu un tiel attourne en tiel pie a la
proschein court apres la resceite, et vous dions qe cesti Adam qe respond!
par attourne fut resceu attourne en la manere.' Ct Lysons, Magna Brit. i.
266. Y. B. 3 Edw. 111. 29 : ' Rob. le W. porta son brief de faux judgement
devers un home et sa feme, et apres le record avowe par les suters de la
court de Bloxham ... les suters agarderent qe Robert et ses plegis fuerent
in le mercie, et quod narratio sua fuit iniqua, et recordarent un nonsuit la
ou la partie fust en court, per qe nous prioms qe eel record soit revers.'
Viner, Abr. u. A. 5, O. 6.
' Y. B. 11/12 Edw. Ill (Rolls Ser.), p. 517 : ' Trew. Le brief suppose qe
le defendant tint le pie et qU fut baiUif, ou seuters tenent le pie qe ont

CHAP.V] ZU 3R,ncknt ©eme0ne to\nvt0, 381
The difficulty stands quite on the same line with that which
meets us in the common law manor, where the element of
the communal assessors has been ultimately suppressed
and conjured away, as it were, by legal theory. The re
sults are contradictory, but on the same line, as I say.
And the more we go back in time, the more we find that
both elements, the lord and the community, are equally
necessary to the constitution ofthe court. In the thirteenth
century we find already that the manorial bailiffs are made
responsible for the judgment along with the suitors and
even before them ^.
The rolls of~ancient demesne manors present a con
siderable -variety of types, shading off from an almost
complete independence of the suitors to forms which are
.not very different from those of common law manors.
Stoneleigh may be taken as a good specimen of the first
class. The manor was divided into six hamlets, and every one The court
of these consisted of eight virgates of land which were ori- wi'™^"
ginally held by single socmen ; although the regularity of
the arrangement seems to have been broken up very soon
fecord ; jugement de bref. Et non allocetur, quia ipse tenet curiam et ei
dirigitur breve.'
' Note Book of Bracton, pi. 1122 : ' Preceptum fuit ballivis de Kingestona
quod in plena curia sua de Kingestona recordari facerent loquelam . . . et
recordum venire facerent per quatuor qui recordo illi interfuerant, etc. . . ,
Jdeo balliui inde sine die et Radulfus in misericordia.' 834: 'Preceptum
fuit vicecoraiti quod preciperet baUiuis manerii Domini Regis de Haueringes
quod recordari facerent in curia doraini Regis de Haueringes loquelam que
fuit in eadem curia per breve doraini Regis . . . unde predicte Agnes et
Dyonisia queste fuerant falsum sibi factum fuisse indicium in eadem curia et
quod diligenter inquirerent qui fuerunt illi de maneriis Domini Regis de
Writele, Neuport et Hatfeuld qui interfuerunt predicto iudicio faciendo simul
cum hominibus Domini Regis de Haueringes et illos venire facerent aput
Aueringe ad diem quem predicti homines et baUiui Haueringe predicti loque
lam recordari facerent, ita quod tara predicti ballivi et homines de Haueringe
quam predicti homines de predictis maneriis recordum Ulud haberent coram
justiciariis aput Westmonasterium per 4 legales homines de manerio de
Aueringes et 6 de maneriis de Writele, de Neuport et de Hatfeuldia ex iUis
qui recordo iUi interfuerunt. . . . Consideratum est quod Uli de predictis
maneriis falsum fecerant indicium et ideo omnes de manerio in misericordia
preter WiUelmum Dun ... qui noluerunt consentire judicio.'

382 zu QUanomf towt0, [essayh.
in consequence of increase of population, extension of the
cultivated area, and the sale of small parcels of the hold
ings. The socmen met anciently to hold courts in a place
called Motstowehill, and afterwards in a house which was
built for the purpose by the Abbot. The way in which the
Register speaks of the admission of a socman to his holding
is very characteristic : ' Every heir succeeding to his father
ought to be admitted to the succession in his fifteenth year,
and let him pay relief to the lord, that is, pay twice his rent.
And he will give judgments with his peers the socmen ;
and become reeve for the collection of the lord's revenue,
and answer to writs and do everything else as if he was
of full age at common law.' The duty and right to give
judgment in the Court of Stoneleigh is emphatically stated
on several occasions, and altogether the jurisdictional in
dependence of the court and of its suitors is set before us
in the smallest but always significant details. If somebody
is bringing a royal close writ of right directed to the bailiffs
of the manor it cannot be opened unless in full court.
When the bailiff has to summon anybody by order of the
court he takes two socmen to witness the summons.
Whenever a trial is terminated either by some one's de
fault in making his law or by non-defence the costs are to
be taxed by the court. The alienation of land and admit
tance of strangers are allowed only upon the express con
sent of the court \ In one word, every page of the Stone
leigh Register shows a closely and powerfully organised
community, of which the lord is merely a president.
' Stoneleigh Reg., t 75 : ' Item si aliquis deforciatur de tenemento suo et
tulerit breve Regis clausum ballivis manerii versus deforciantes, dictum breve
non debet frangi nisi in curia . . . Itera quando baUivus aliquem summoneat
ex precepto curie, tunc assumet secum duos sokemannos quos voluerit pro
testanda summonicione predicta . . . Item qualitercumque placitum termi-
netur in curia sive in deficiendo in lege vadiata sive per non defensionem
dampna sunt semper taxanda per curiam . . . Item debent sokemanni respon
dere per 12 coram justiciariis et coronatore domini Regis. Et ipsi dabunt
indicia curie de Stonle . . . Item nuUus adiudicabitur tenens terre nisi qui a
curia tenens acceptatur per fidelitatem et alias consuetudines licet tenens
extra curiam aliquem feoffaverit per cartam vel sine carta.'

CHAP.V] ZU 3^ncknt ®eme0ne towt0* 383
The rolls of King's Ripton are not less explicit in this Rolls of
respect. People are fined for selling land without the RJpfon
licence of the court for selling it 'outside the court ^.'
The judgment depends entirely on the verdict given
by the community of suitors or its representatives the
jurors. When the parties rely on some former decision,
arrangement, or statement of law, they appeal to the rolls
of the court, which, as has been said already, present no
thing else but the recorded jurisprudence of the body of
suitors ^. The extent of the legal self-government of this
little community may be well seen in the record of a
trial in which the Abbot of Ramsey, the lord of the
manor, is impleaded upon a little writ of right by one of
his tenants ^. But it is hardly necessary to dwell on so
normal an event. I should like to take up for once the
opposite standpoint, and to show that in these very com
munities on the ancient demesne elements are apparent
which have thrived and developed in ordinary manors to
such an extent as to obscure their self-government. In
the Rolls of King's Ripton we might easily notice a
number of instances in which the influence of the lord
makes itself felt directly or indirectly through the means
of his steward. We come, for instance, on the following
forms of pleading : An action of dower is brought, and
the defendants ask that the laws and customs hitherto used

' Selden Soc. ii. 122 : ' Capiatur in manum domini quarta pars unius rode
prati jacens in Smalemade quam Rogerus Greylong vendidit Nicholao le
Neuman sine licencia curie.' Cf. 112: ' Praesentatum est quod Hugo Grae-
leng solvit sursura extra curiam ad opus Thorae Aspelon de Broucton liberi
unam portionem cuiusdam mesuagii . . . Ideo preceptum quod capiatur in
manum domini.'
^ We hear constantly such phrases as the following : ' Quod iuncta est
secum vocat rotulos ad warrantum ; ponit se super rotulos.' But we have
also : ' Et partes pecierunt quod inquiratur per vUlatam que dixit quod sufB-
cientem duxit sectam. Postea testificatum fuit per totara villatam quod dictus
Nicolaus tenebatur dicto Bartholomeo in predictis sd.' (Seld. Soc. ii. 118).
In one case the party relies on the evidence of the Register of Ramsey
(p. in), which was corapiled, of course, on the basis of sworn inquests held
in the different manors.
' Seld. Soc. u. 112.

384 zu (WlanotriaP to\ntt0, [Essayil
in the court should be observed in regard to, them — they
have a right to three summonses, three distraints, and three
essoins, and if they make default after that, the land ought
to be taken into the lord's hand, when, but only if it is
not replevied in the course of fifteen days, it will be lost for
good and all. All these demands are granted by the steward,
with whom the decision, at least formally, rests ^- Again,
vvhen we hear that the whole court craves leave to defer
its judgment till the next meeting, it is clear that it rests
with the steward to grant this request^- We may find
now and then a consideration for the interests of the lord
which transcends the limits of mere formal right, as in a
case where a certain Margery asks the court, without any
writ of right or formal action, that an inquest may be held
as to a part of her messuage which is detained in the hands
of the Abbot, although she performs the service due for it.
The inquest is held, and apparently ends in her favour, but
she is directed at the same time to go and speak with the
lord about the matter. Ultimately she gets what she wants
after this private interview*. The proceedings are irre
gular and interesting : the usual forms of action are dis
regarded ; a verdict is given, but the material decision
is left with the lord, and is to be sought for by private
intercession. Quite close to this entry we find an instance
which is in flagrant contradiction with such a considerate
treatment of all parties. The jurors of the court are called
upon to decide a question of testament and succession.
• Augment. Court Rolls, Portf xxiii. No. 94, m. 3 : ' Quod quidem per
senescallum concessum est eisdem ' (the entry is omitted in Mr. Maitland's
publication). ' Seld. Soc. ii. III.
' Augment. Court Rolls, Portt xxiu. No. 94, m. 25 v. (the entry is not in the
Selden volume) : ' Margeria que fuit uxor Nicholai de Aula de Kingesripton
venit et petit unum parvum mesuagium existens in manu domini quod quon
dara fuit de mesuagio suo proprio et quod ipsa Margeria singulis annis de
fendit versus dominura Abbatera, unde petit quod ius suum super hoc inqui
ratur per bonam inquisicionem. Que venit et dicit . . . Et ideo preceptum
eidem quod inde habeat coUoquium cum domino. Et postea coUoquio habito
cum domino concessum est ei quod pacifice habeat faciendo seraicia inde
debita et consueta.'

CHAP.V] fxu ^tt«ot:0. 385
They say that none of them was present when the testa
ment was made, and that they know nothing about it and
will say nothing about it. ' And so leaving their business
undone, and in great contempt of the lord and of his
bailiffs, they leave the court. And therefore it is ordered
that the bailiffs do cause to be levied a sum of 40s. to the
use of the lord from the property of the said jurors by dis
tress continued from day to day ^.' This case may stand
as a good example both of the sturdy self-will which the
peasantry occasionally asserted in their dealings with the
lord, and of the opportunities that the lord had of asserting
his superiority in a very high-handed manner.
But we need not even turn to any egregious instances
in which the lord's power is thus displayed. The usual
forms of surrender are there to show that, as regards ori
gins, we have the same thing here as in ordinary manors,
although the peculiarities of the ancient demesne have
brought forward the features of communal organisation in
a very marked way, and have held the element of lordship
in check.
We have seen that there was only one halimot in the Free suit-
thirteenth and the preceding centuries, and that the division "laUmot. ^
into customary court and court baron developed at a later
time. We have seen, secondly, that this halimot was a
meeting of the community under the presidency of the
steward, and that the relative functions of community
and steward became very distinct only in later days. It
remains to be seen how far the fundamental class division >^
between free tenants and villains affected the management
of the court. As there was but one halimot and not two,
both classes had to meet and to act concurrently in it.
The free people now and then assert separate claims : a
chaplain wages his law on the manor of Brightwaltham
that he did not defame the lord's butier, but when he gets
convicted by a good inquest of jurors of having broken the
lord's hedges and carried away the lord's fowls, he will not
justify himself of these trespasses and departs in contempt,
1 Selden Soc. U. 127.
VOL. I. C C

386 ZU (tttanotriaf Cov.vt0, {essay n.
doubtless because he will not submit to the judgment
of people who are not on a par with him ^. Freeholders
object to being placed on ordinary juries of the manor ^,
although they will serve as jurors on special occasions,
and as a sort of controlling body over the common
presenters*. Amercements are sometimes taxed by free
suitors *. But although some division is apparent in this
way, and the elements for a separation into two distinct
courts are gathering, the , normal condijiqn is one which
does nqt,admit of any distinction between the two classes.
We come here across the same peculiarity that we have
seen in police and criminal law, namely, that the funda
mental line of civil condition seems disregarded. Even
when a court is mainly composed of villains, and in fact
called curia villanorum, some of its suitors may be free
holders ^- Even in a court composed of free people, like
that of Broughton, there may be villains among them^
The parson, undoubtedly a free man, may appear as a
villain in some rolls '. Altogether, the fact has to be
noticed as a very important one, that whatever business
the freeholders may have had in connexion with the mano
rial system, this business was transacted by courts which
consisted chiefly of servile tenants *. In fact the pre-
' Selden Soc. ii. 173.
'' Ibid. 94 : ' Reginaldus fil. Benedicti injuste dedicit esse unus de 12 jura-
toribus allegando libertatem . . . Dicunt eciam quod WiUelmus de Bernewell
injuste allegat libertatem propter quara contradicit esse unus de juratisJ' Ct
Cor. Rege incerti anni Johann. 5 : ' Predecessores sui et ipse tenuerant
liberura tenementum et quod quidam ex juratis sunt consuetudinarii monia-
lium.' Cor. Rege Pasdia, 9 Edw. I, 34, b : ' (Amerciamentum sochemanni)
per pares vel per liberos de curia et vicinos ad curiam venientes.'
' Hereford Rolls (Bodleian), 12 : ' Compertum per libere tenentes quod
custumarii falso presentant . . . ideo custumarii in misericordia.' Rot. Hundr.
ii. 469 : ' Quatuor homines et prepositus presentabant defaltas predictis liberis
hominibus et ipsi liberi presentabant ballivis.'
* Seld. Soc. ii. 44.
' Introduction to Seld. Soc. ii. p. Ixx.
• Seld. Soc. ii. 67.
• Ibid. 164.
' See as to aU this Mr. Maitland's Introduction to flie Selden volume (ii),
pp. Ixix, Ixx.

CHAP.V,] ZU Zwo Sx^tUib^t0, 387
senting inquests, on which the free tenants refused to serve,
would not be prevented by their composition from attaint
ing these free tenants.
This seems strange and indeed anomalous. One point Requirc-
remains to be observed which completes the picture : free suft-
although the great majority of the thirteenth century cs.
peasantry are mere villains, although on some manors we
hardly distinguish freeholders, there is a legal requirement
that there should be at least a few freeholders on every
manor. Later theory does not recognise as a manor an
estate composed only of demesne land and copyhold. Free
holds are declared to be a necessary element, and should
they all escheat, the manor would be only a reputed one ^
We have no right to treat this notion as a mere invention
of later times. It comes forward again and again in the
shape of a rule, that there can be no court unless there are
some free tenants to form it. The number required varies.
In Henry VII I's reign royal judges were contented with
two. In John's time as many as twelve were demanded, if
a free outsider was to be judged. The normal number
seems to have been four, and when the record of the pro
ceedings was sent up to the King's tribunal four suitors had
to carry it The difference between the statement of Coke
and the earlier doctrine lies in the substitution of the manor
for the court Coke and his authorities, the judges of Henry
VI IPs reign, speak of the manor where the older jurispru
dence spoke of the court. Their rule involves the more
ancient one and something in addition, namely, the inference
that if there be no court baron there is no manor. Now
this part of the doctrine, though interesting by itself must
stand over for the present. Let us simply take the asser
tion that free suitors are necessary to constitute a court,
and apply it to a state of things when there was but one
strictly manorial court the halimot. In 1394 it is noted
' Introd. to Selden Soc. ii. p. Ixi, and foUowing. Comp. Coram Rege, 27
Henry III, 2 : ' Dicunt quod non est aliquis liber homo in eodem manerio
nisi WiUelmus filius Radulfi qui respondet infra corpus comitatus.'
C C 3

388 ZU (Wlanotriaf Cowt0, [essay h.
in the report of a trial that, ' in order that one may have a
court he must have at least four free tenants, without bor
rowing the fourth tenant ^.' Now a number of easy ex
planations seem at hand : four free tenants at least were
necessary, because four such tenants were required to take
the record up to the king's court and to answer for any
false judgment ; a free tenant could protest against being
impleaded before unfree people ; some of the franchises
could not be exercised unless there were free suitors to
form a tribunal. But all these explanations do not go deep
enough : they would do very well for the later court baron,
but not for the halimot. It is not asserted that free suitors
are necessary only in those cases where free tenants are
concerned — it is the court as such which depends on the
existence of such free suitors, the court which has largely,
if not mostly, to deal with customary business, and consists
to a great extent of customary tenants. And, curiously
enough, when the court baron disengages itself from the
halimot, the rule as to suitors, instead of applying in a
special way to this court baron, for which it seems parti
cularly fitted, extends to the notion of the manor itself
so that we are driven to ask why the manor is assumed to
contain a certain number of free tenants and a court for
them. Why is its existence denied where these elements
are wanting ? Reverting to the thirteenth century, we have
to state similar puzzhng questions: thus if one turns to
the manorial surveys of the time, the freehold element
seems to be relatively insignificant and more or less severed
from the community; if one takes up the manorial rolls,
the halimot is there with the emphatically expressed fea
tures and even the name of a court of villains ; but when
the common law is concerned, this same tribunal appears
as a court of freeholders. The manors of the Abbey of
Bee on English soil contained hardly any freeholders at
all. Had the Abbey no courts ? Had it no manors from
the standpoint of Coke's theory ? What were the halimots
' Y. B. 21-22 Edw. I, 526 (Rolls Series).

CHAP.V.] ZU Zwo StuUibit0, 389
whose proceedings are recorded in the usual way on its
manorial rolls ? In presence of these flagrant contradictions
I cannot help thinking that we here come across one of
those interesting points where the two lines of feudal doc
trine do not meet and where different layers of theory may
be distinguished.
Without denying in the least the practical importance Free suit-
of such notions as that which required that one's judges ^4^"*^
should be one's peers, or of such institutions as the bringing holders.
up of the manorial record to the King's Court, I submit that
they must have exercised their influence chiefly by calling
forth occasions when the main principle had to be asserted.
Of course they could not create this principle : the idea that
the halimot was a communal court constituted by free
suitors meeting under the presidency of the steward, must
have existed to support them. That idea is fully embodied
in the constitution of the ancient demesne tribunal, where
the suitors were admitted to be the judges, although they
were villains, privileged villains and nothing else. Might
we not start from the original similarity between ancient
demesne and ordinary manors, and thus explain how the
rule as to the necessary constitution of the manorial court
was formed ? It seems to me a mere application of the
higher rule that a court over free people must contain free
people, to a state of things where the distinction between
free and unfree was not drawn at the same level as in
the feudal epoch, but was drawn at a lower point. We
have seen that a villain was in many respects a free man ;
that he was accepted as such in criminal and police busi
ness ; that he was free against everybody but his lord in
civil dealings ; that the frank-pledge system to which he
belonged was actually taken to imply personal freedom,
although the freeholders ultimately escaped from it I can
not help thinking that a like transformation of meaning as
in the case of frank-pledge did take place in regard to the
free suitors of the manorial court. The original require-
ment.c.annqt have concerned freeholders in the usual legal
sense, but free and lawful men, 'worthy of were and wite' — a

390 •^^e (WlanoriaP Cout(0. [essayh.
description which would cover the great bulk of the villains
and exclude slaves and their progeny. When the definitions
of free holding and villainage got to be very stringent and
marked, the libere tenentes assumed a more and more
overbearing attitude and got a separate tribunal, while the
common people fell into the same condition as the progeny
of slaves. In a word, I think that the general movement
of social development which obliterated the middle class
of Saxon ceorls or customary free tenants (leaving only a
few scattered indications of its existence) made itself felt
in the history of the manorial court by the substitution of
exceptional freeholders for the free suitors of the halimot
Such a substitution had several results: the diverging
history of the ancient demesne from that of the ordinary
manorial courts, the elevation of the court baron, the growth
of the notion that in the customary court the only judge
was the steward. One significant little trait remains to
be observed in this context. It has been noticed^ that
care seems to be taken that there should be certain Free
men or Franklains in every manor. The feature has been
mentioned in connexion with the doctrine of free suitors
necessary to a court. But these people are by no means
free tenants ; in the usual legal sense they are mostly
holding in villainage, and their freedom must be traced
not to the dual division of feudal times, but to survivals of
the threefold division which preceded feudalism, and con
trasted slave, free ceorl, and military landowner.
Honorial Before concluding this chapter I have to say a few words
Courts. upon those forms of the manorial court which appear as
a modification of the normal institution. Of the ancient
demesne tribunal I have already spoken, but there are
several other peculiar formations which help to bring out
the main ideas of manorial organisation, just because they
swerve from it in one sense or another. Mr. Maitland
has spoken so well of one of these variations, that I need
not do anything more than refer the reader to his pages
' Comp. Mr. Maitland in his ofl;en-quoted Introduction, p. Ixxi.

CHAP.V] %onoux Anb ^oU. ^ 391
about the Honour and its Court ^. He has proved that it
is no mere aggregate of manors, but a higher court, con
structed on the feudal principle, that every lord who had
free tenants under him could summon them to form a
court for their common dealings. It ought to be observed,
however, that the instance of Broughton, though its raain
basis is undoubtedly this feudal" doctrine, still appears
complicated by manorial business, which is brought in
by way of appeal and evocation, as well as by a mixture
between the court of the great fief and the halimot of
Broughton. A second phenomenon well worth consideration is the The soke.
existence in some parts of the country of a unit of juris
diction and management which does not fall in with the
manor, — it is called the soke, and comprises free tenantry
dispersed soraetiraes over a very wide area. A good ex
ample of this institution is given by Mr. Clark's publi
cation on the Soke of Rothley in Lincolnshire ^. We need
not go into the details of the personal status of the tenants,
they clearly come under the description of free sokeraen.
Our present concern is that they are not siraply arranged
into the manor of Rothley as usual, but are distinguished
as forming the soke of this raanor. They are rather
nuraerous — twenty-three — and corae to the lord's court,
but their services are trifling as corapared with those of
the custoraers, and their possessions are so scattered, that
there could be no talk of their joining the agrarian unit
of the central estate. What unites them to the manor is
evidently merely jurisdiction, although in feudal theory
they are assumed to hold of the lord of Rothley. But they
are set apart as forming the soke, and this shows them
clearly to be subjected to jurisdiction rather than anything
else. It is interesting to note such survivals in the thir
teenth century, and within the realra of feudal law the
case of Rothley is of course by no raeans the only one *.
• Introduction to Seld. Soc. U. p. Ixvi.
' Archaeologia, vol. 47, p. 27, and foUowing.
' Rot. Hundr., Cartulary of Ramsey, i.

392 ZU (^nOVXAi tOWt0, [Essay II.
If we contrast this exceptional appearance of the soke
outside the raanor with the normal arrangement by which
all the free tenants are fitted into the manor, we shall
come to the conclusion that originally the element of
jurisdiction over freeholders might exist separately from
the manageraent of the estate, but that in the general course
of events it was raerged into the estate and forraed one of
the component elements of the manorial court. The case
of Rothley is especially interesting because the men of the
soke or under the soke do not go to a court of their own,
but siraply join the raanorial raeetings. If they are still
kept apart, it is evident that their relation to the court,
and indeed to the manor, was what made them distinct
frora everybody else. In short, to state the difference in a
pointed form, the other people were tenants and they were
subjects.
The Aston One more point reraains to be noticed. In order to make
'^^^^' it clear we must by way of exception start frora the arrange
ments of a later epoch than that which we have been dis
cussing. The manor of Aston and Cote, which may have
been carved out with several others from the manor of
Bampton, presents a very good instance of a village meet
ing which does not coincide with the manorial divisions,
and appears constructed on the lines of a village comraunity
which has preserved its unity, although several manors have
grown out of it. It was stated by the lord of the manor of
A.ston and Cote in 1657, that 'there hath been a custom
tirae out of raind that a certain nuraber of persons called
the Sixteen, or the greater part of them, have used to raake
orders, set penalties, choose officers, and lot meadows, and
do all such things as are usually perforraed or done in the
courts baron of other raanors.' All the details of this
case are interesting, but we need not go into thera, because
they have been set out with sufficient care in the existing
literature, and suraraed up by Mr. Gorame in his book on
the Village Coraraunity^. It is the raain point which
' Gomme, Village Community, 162, etc.

Chap.v.] (ttlanor Anb Zown0Up» 393
we raust consider. Here is an asserably meeting to
transact legal and economic business, which acts on the
pattern of raanorial courts. And if not a raanorial court,
what is it ? I think it is difficult to escape the conclusion
that it is a meeting of the village comraunity outside the
lines of raanorial division. The supposition that it repre
sents the old raanor of Barapton, to which Aston, Cote,
Bampton Pogeys, Bampton Priory are subordinated, is
entirely insufficient to explain the case, because then we
should not have had to recognise new manors in the
fractions which were detached from Bampton, and there
would have been no call to speak of a peculiar asserably
assuming the competence of a court baron — we should
have had the raanorial court and the lord of Barapton, and
not the Sixteen to speak of The fact is patent and
significant. It shows by itself that there raay have been
cases where the village coraraunity and the raanor did riot
coincide, and the village coraraunity had the best of it.
The first proposition does not adrait of doubt. It was Manor and
of quite coramon occurrence that the land of one village township.
should be broken up between several manors, although its
open field system and all its husbandry arrangements
remained undivided. The question arises, how was that
system to work? There could be express agreement be
tween the owners^ ; ancient custom and the interference of
manorial officers chosen frora the different parts could help
on many occasions. But it is irapossible to suppose, in the
light of the Barapton instance, that raeetings raight not
sometimes exist in such divided villages which took into
their hands the manageraent of the raany econoraic ques
tions arising out of coramon husbandry : questions about
hedges, rotation of crops, coraraonable animals, usage as
to wood, moor, pasture, and so forth. A diligent search
in the customs of manors at a later period, say in the
sixteenth and seventeenth centuries, must certainly dis
close a number of sirailar instances. Our own raaterial
' Cart, of Malmesbury (RoUs Ser.), ii. 221.

394 ZU QtlanoHaf Coutr^0. [Essayii.
does not help us, because it passes over questions of
husbandry, and touches raerely jurisdiction, ownership, and
tenant-right. And so we raust restrict ourself to notice
the opening for an inquiry in that direction.
Township Such an inquiry raust also deal with the converse pos-
Manor sibility, naraely, the cases in which the manor is so large
that several village units fit into it. We may find very
frequently in sorae parts of the country large raanors
which are coraposed of several independent villages and
hamlets ^. On large tracts of land these villages would
form separate open field groups. Although the econo
raic evidence is not within our reach in early times, we
have indications of separate village meetings under the
manorial court even frora the legal point of view taken
by the court-rolls. In several instances the entries printed
in the second volume of the Selden Society publica
tions point to the action of townships as distinct frora
the manorial court and placed under it. In Broughton
a man distrained for default puts hiraself on the verdict
of the whole court and of the township of Hurst, both
villains and freeraen, that he owes no suit to the court
of Broughton, save twice a year and to afforce the court.
Be it noted that the court of Hurst is distinguished
' A very good case in point is presented by Hitchin, because the
boundaries and the jurisdiction of the manor comprise a great number of
villages and hamlets which managed their open fields quite independently
of the central township of Hitchin, and could not but do so, as they lay
quite apart and a good way from it, as may be seen on the Ordnance Map.
And StiU the raanor comprises ' the township of Hitchin and the hamlet of
Walsworth, the lesser manors of the Rectory of Hitchin, of Moremead,
otherwise Charlton, and of the Priory of the Biggin, being comprehended
within the boundaries of the said manor of Hitchin, which also extends into
the hamlets of Langley and Preston in the said parish of Hitchin, and into
the parishes of Ickleford, Ipolitts, Kimpton, Kingswalden, and OflBey.' (See
bohm, ViUage Community, 443, 444.) As Mr. Seebohm teUs me, the con
trast between the central portion, that of the township, managed in one
open field system, and the outlying parts, is probably reflected in the curious
denominations of the manor as Portraan and Foreign, It is well known
how frequently our surveys mention hamlets ; in many cases these annexes
of townships are so widely scattered, that it would be impossible to suppose
one open field system for them.

CHAP.V] Zown0Uv Anb (tttanoy, 395
from the township, which appears subordinated to it prob
ably because there were other townships in the manor of
Hurst. At the same tirae the township is called upon
to act as an independent unit in the raatter. Even so
in the rolls of Heraingford, the township which forms the
centre of the manor and gives its name to it, is sometimes
singled out from the rest of the court as an organised
corporation^. When township and tithing coincided, as
in the case of Brightwaltham, the tithing gets opposed to
the general court in the same way^. Altogether the cor
porate unity of townships is well perceivable behind the
feudal covering of the manor. Mr. Maitland says with
perfect right, ' the manor was not a unit in the govern
mental system ; the county was such a unit, so was the
hundred. So again was the vill, for the township had
many police duties to perforra ; it was an araerciable,
punishable unit ; not so the raanor, unless it coincided with
the vill *.' And then he proceeds to suggest that the true
explanation of the raanor is that it represents an estate
which could be and was adrainistered as a single economic
and agrarian whole. I am unable to follow him entirely
as to this last point, because it seems pretty clear that the
open field arrangements followed the division into town
ships, and not those into manors. From the point of view
of the services, of the concentration of duties of the
tenantry in regard to the lord, the manor was a whole, and
for this very reason it was a whole as regards geldability,
but this is only one side of the econoraic structure of society,
the upper side, if one may be allowed to say so. The
arrangement of actual cultivation is the other side, and it
is represented by the township with its coraraunal open
fields. Now in a great many cases the estate and the
comraunity fitted into each other ; and of these instances
there is no need to speak any further. But if both did not
fit the agrarian unity is the township and not the manor.
' Seld. Soc. ii. 68, 90.
' Ibid. 162, 166.
' Introd. to Seld. Soc. ii. p. xxxix.

396 ZU QUanotriaP torxtt0.
The open field system appears in this connexion as outside
the manor, and proceeding from the rural comraunity by
itself. Let us sura up the results obtained in this chapter.
I. The village comraunities contained in the manorial
system are organised on a system of self-government
/ which affords great help to the lord in many ways, but
certainly limits his power raaterially, and reduces him to
the position of a constitutional ruler.
3. The original court of the manor was one and the
body of its suitors was one. The distinction between
courts for free tenants and custoraary courts grows up very
gradually in the fourteenth century, and later.
3. The steward was not the only judge of the haliraot.
The judgment came from the whole court, and its suitors,
without distinction of class, were necessary judicial as
sessors. 4. The court of ancient demesne presents the sarae
eleraents as the ordinary haliraot, although it lays greater
stress on the communal side of the organisation.
5. The conveyancing entries on the rolls do not prove
the want of right on the part of the peasant holders.
On the contrary, they go back to very early coraraunal
practice. 6. The rule which raakes the existence of the raanor
dependent on the existence of free suitors is derived from
the conception of the court as a court of free and lawful
raen, taking in villains and excluding slaves.
7. The raanor by itself is the estate; the rural com
munity and the jurisdiction of the soke are generally fused
with it into one whole ; but in some cases the two latter
eleraents are seen eraerging as independent growths from
behind the manorial organisation.

CHAPTER VI.
THE MANOR AND THE VILLAGE COMMUNITY.
Conclusions.
If we look at the village Hfe of mediaeval England, not
for the purpose of dissecting it into its constitutive elements,
but in order that we may detect the principles that hold it
together and organise it as a whole, we shall be struck by
several features which make it quite unlike the present
arrangeraent of rural society. Even a casual observer will
not fail to perceive the contrast which it presents to that
free play of individual interests and that undisputed su
premacy of the state in political raatters, which are so
characteristic of the present tirae. And on the other hand
there is just as sharp a contrast between the raanorial
system and a system of tribal relationships based on blood
relationship and its artificial outgrowths ; and yet again
it may be contrasted with a village coraraunity built upon
the basis of equal partnership among free raerabers. It is
evident at the sarae time, that such differences, deep
though they are, cannot be treated as priraordial and
absolute divisions. All these systems are but stages of
developraent, after all, and the raost iraportant problem
concerning them is the problem of their origins and rautual
relations. The main road towards its solution lies un
doubtedly through the demesne of strictly historical in-

398 ZU Qtlanotr Anb tU (^xttA^t Communi%. [n.
vestigation. Should we succeed in tracing with clearness
the consecutive stages of the process and the interraediate
links between thera, the raost iraportant part of the work
will have been done. This is siraple enough, and seems
hardly worth mentioning. But things are not so plain as
they look.
To begin with, even a complete knowledge of the
sequence of events would not be sufficient sinc^ it would
raerely present a series of arrangeraents following upon each
other in tirae and not a chain of causes and effects. We
cannot exerapt ourselves frora the duty of following up the
investigation by speculations as to the agencies and motives
which produced the changes. But even apart from the
necessity of taking up ultiraately what one raay call the
dynamic thread of the inquiry, there is considerable diffi
culty in obtaining a tolerably settled sequence of general
facts to start with. Any one who has had to do with such
studies knows how scanty the information about the earlier
phenoraena is apt to be, how difficult it is to distinguish
between the raain forras and the variations which raediate
and lead from one to another. The task of settling a definite
theory of development would not have been so arduous,
and the conflicting views of scholars would not have sug
gested such directly opposite results, if the early data had
not been so scattered and so ambiguous. The state of
the existing material requires a method of treatment which
may to some extent supplement the defects in the evidence.
The later and well-recorded period ought to be raade to
supply additional inforraation as to the earlier and ira-
perfectly described ones. It is from this point of view
that we raust once raore survey the ground that we have
been exploring in the foregoing pages.
The first general feature that meets our eye is the culti
vation of arable on the open-field system : the land tilled
is not parcelled up by enclosures, but lies open through the
whole or the greater part of the year ; the plot held and
tilled by a single cultivator is not a compact piece, but is
composed of strips strewn about in all parts of the village

Chap. VI] €oncfu0ion0. 399
fields and interraixed with patches or strips possessed by
fellow villagers. Now, both facts are reraarkable. They do
not square at all with the rules and tendencies of private
ownership and individualistic husbandry. The individual
proprietor will naturally try to fence in his plot against
strangers, to set up hedges and walls that would render
trespassing over his ground difficult, if not impossible.
And he could not but consider intermixture as a downright
nuisance, and strive by all means in his power to get rid of
it Why should he put up with the inconvenience of hold
ing a bundle of strips lying far apart frora each other, raore
or less dependent because of their narrowness on the dealings
of neighbours, who raay be untidy and unthrifty ? Instead
of having one block of soil to look to and a coraparatively
short boundary to raaintain, every occupier has a number
of scattered pieces to care for, and neighbours, who not
only surround, but actually cut up, dismeraber, invade his
tenement. The open-field system stands in glaring con
tradiction with the present state of private rights in Western
Europe, and no wonder that it has been abolished every
where, except on some few tracts of land kept back by
geographical conditions from joining the raovement of
modern civilisation. And even in mediaeval history we
perceive that the arrangement does not keep its hold on
those occasions when the rights of individuals are strongly
felt : it gives way on the demesne farm and on newly
reclaimed land.
At the same time, the absence of perpetual enclosures
and the intermixture of strips are in a general way quite
prevalent at the present time in the East of Europe.
What conditions do they correspond to ? Why have nations
living in very different climates and on very different soils
adopted the open-field system again and again in spite of
all inconveniences and without having borrowed it from
each other.'
There is absolutely nothing in the manorial arrangement
to occasion this curious system. It is not the fact that
peasant holdings are made subservient to the Wknts of the

400 ZU QUanov Anb tU (^xitA^i^ Communi^. [n.
lord's estate, that can explain why early agriculture is
in the raain a culture of open fields and involves a raar
vellous intermixture of rights. The absence of any logical
connexion between these two things settles the question
as to historical influence. The open-field arrangement is, I
repeat it, no lax or indifferent system, but stringent and
highly peculiar. And so it cannot but proceed from some
pressing necessity.
It is evidently communal in its very essence. Every
trait that makes it strange and inconvenient from the point
of view of individualistic interests, renders it highly appro
priate to a state of things ruled by coraraunal conceptions.
It is difficult to prevent trespasses upon an open plot, but
the plot raust be open, if many people besides the tiller
have rights over it, pasture rights, for instance. It involves
great loss of time and difficulty of supervision to work a
property that lies in thirty separate pieces all over the
territory of a village, but such a disposition is remarkably
well adapted for the purpose of assigning to fellow villagers
equal shares in the arable. It is grievous to depend on
your neighbours for the proceeds and results of your own
work, but the tangled web of rights and boundaries be
coraes simple if one considers it as the management of
land by an agricultural comraunity which has allotted the
places where its raerabers have to work. Rights of common"
usage, communal apportionment of shares in the arable,
communal arrangeraent of ways and tiraes of cultivation —
these are the chief features of open-field husbandry, and all
point to one source — the village coraraunity. It is not a
raanorial arrangeraent, though it may be adapted to the
manor. If raore proof were needed we have only to notice
the fact, that open-field cultivation is in full work in countries
where the raanor has not been established, and in times
when it has not as yet been formed. We may take India
or tribal Italy as instances.
The system as exhibited in England is linked to a
division into holdings which gives it additional significance.
The holding of the English peasant is distinguished by two

chap.vl] Concftt0ton0. 401
characteristic features : it is a unit which as a rule does
not admit of division ; it is equal to other units in the
same village. There is no need to point out at length
to what extent these features are repugnant to an in
dividualistic order of things. They belong to a rural
community. But even in a comraunity the arrangeraent
adopted seems peculiar. We must not disregard sorae
important contradictions. The holdings are not all equal,
but are grouped on a scale of three, four, five divisions —
virgates, bovates, and cotlands for instance. And the ques
tion raay be put: why should an artificial arrangeraent
contrived for the sake of equality start from a flagrant
inequality which looks the raore unjust, because instead of
those intermediate quantities which shade off into each
other in our modern society we meet with abrupt transitions ?
A second difficulty may be found in the unchangeable nature
of the holding. The equal virgates are in fact an obstacle
to a proportionate repartition of the land araong the
population, because there is nothing to insure that the
differences of growth and requireraents arising between
different families will keep square with the relations of the
holdings. In one case the faraily plot may become too
large, in another too scanty an allowance for the peasant
household working and feeding on that plot. And ulti
mately, as we have seen, the indivisible nature of the
holding looks to some extent like an artificial one, and
one that is more apparent than real. Not to speak of that
provincial variation, the Kentish systera of gavelkind, we
notice that even in the rest of England large units are
breaking into fractions, and that very often the supposed
unity is only a thin covering for raaterial division. Why
should it be kept up then ?
Such serious contradictions and incongruities lead us
forcibly to the conclusion that we have a state of transition
before us, an institution that is in sorae degree distorted
and warped from its original shape. In this respect the
manorial eleraent coraes strongly to the fore. The rough
scale of holdings would be grossly against justice for purely
VOL. I. D d

402 zu QUanor Anb tU ^ifPage tommmxt^.
communal purposes, but it is not only the occupation of
land, but also the incidence of services that is regulated
by it. People would not so much coraplain of holding five
acres instead of thirty, if they had to work and to pay six
times less in the first case. Again, a division of teneraents
fixed once and for all in spite of changes in the numbers
and wants of the population, looks anything but convenient
At the same time the fixed scheme of the division offers
a ready basis for computing rents and assessing labour
services. And for the sake of the lord it was advisable to
preserve outward unity even when the system was actually
breaking up : for dealings with the manorial administration
virgates reraained undivided, even when they were no
longer occupied as integral units.
Although the holdings are undoubtedly made subservient
to the wants of the manor, it would be going a great deal
too far to suppose that they were formed with the primary
object of meeting those wants. If we look closer into the
structure we find that it is based on the relation between
the plough-team and the arable, a relation which is more or
less constant and explains the gradations and the mode of
apportionment. The division of the land is no indefinite
or capricious one, because the land has to be used in
certain quantities, and smaller quantities or fractions would
disarrange the natural connexion between the soil and the
forces that make it productive. The society of those days
appears as an agricultural mass consisting not of individual
persons or natural families, but of groups possessed of the
implements for tilling the land. Its unit of reckoning is
not the man, but the plough-beast As the model plough-
team happens to be a very large one, the large unit of the
hide is adopted. Lesser quantities may be formed also,
but still they correspond to aliquot parts of the full team of
eight oxen. Thus the possible gradations are not so many
or so gentle as in our own time, but are in the raain the
half plough-land, the virgate, and the oxgang. What else
there is can be only regarded as subsidiary to the raain
arrangement: the cotters and crofters are not tenants in the

Chap. VL] ^Oncftt0ion0. 403
fields, but gardeners, labourers, craftsmen, herdsmen, and
the like. If the country had not been mainly cultivated
as ploughland, but had bome vines or olives or crops that
required no cumbersome implements, but intense and indi
vidualistic labour, one may readily believe that the holdings
would have been more compact, and also more irregular.
The principles of coaration give an insight into the
nature of these English village communities. They did not
aim at absolute equality; they subordinated the personal
element to the agricultural one, if we may use that expres
sion. Not so much an apportionment of individual claims
was effected as an apportionment of the land to the forces
at work upon it. This observation helps us to get rid of
the anomalies with which we started : the holding was
united because an ox could not be divided ; the plots might
be smaller or larger, but everywhere they were connected
with a scheme of which the plough-team was the unit.
An increasing population had to take care of itself and
to try to fit itself into the existing divisions by family
arrangements, marriage, adoption, reclaiming of new land,
employment for hire, by-professions, and emigration. The
manorial factor comes in to raake everything artificially
regular and rigid.
If we examine the open-field system and its relation to
the holdings of individual peasants, we see, as it were,
the framework of a peasant comraunity that has swerved
from the path of its original development. The gathering
of scattered and intermixed strips into holdings points to
practices of division or allotment: these practices are the
very essence of the whole, and they alone can explain the
glaring inconveniencies of scattered ownership coupled with
artificial concentration. But redivision of the arable is not
seen in the documents of our period. There is no shifting
of strips, no changes in the quantities allotted to each
family. Everything goes by heredity and settled rules of
family property, as if the husbandry was not arranged for
coraraunal ownership and re-allotment. I should like to
compare the whole to the icebound surface of a northern
D d 3

404 ZU QUanotr Anb tU (^i^^AQ^ £;ommuni^2.
sea : it is not sraooth, although hard and immoveable, and
the hills and hollows of the uneven plain remind one of the
billows that rolled when it was yet unfrozen.
The treatment of the arable gives the clue to all other
sides of the subject. The rights of common usage of
meadow and pasture carry us back to practices which raust
have been originally applied to arable also. When one
reads of a meadow being cut up into strips and partitioned
for a year among the merabers of the community by
regular rotation or by lot, one does not see why only the
grass land should be thus treated while there is no re-
allotment of the arable plots. As for the waste, it does not
even adrait of set boundaries, and the only possible raeans
of apportioning its use is to prescribe what and how many
heads of cattle each holding may send out upon it. The
close affinity between the different parts of the village
soil is especially illustrated by the fact, that the open-field
arable is treated as common through the greater part of
the year. Such facts are more than survivals, raore than
stray relics of a bygone tirae. The coraraunal element of
English mediaeval husbandry becomes conspicuous in the
individualistic elements that grow out of it.
The question has been asked whether we ought not to
regard these coraraunal arrangements as derived from the
exclusive right of ownership, and the power of coercion
vested in the lord of the soil. I think that many features
in the constitution of the thirteenth century manor show
its gradual growth and comparatively recent origin. The
so-called manorial system consists, in truth, in the peculiar
connexion between two agrarian bodies, the settlement of
villagers cultivating their own fields, and the home-estate of
the lord tacked on to this settlement and dependent on the
work supplied by it. I take only the agrarian side, of course,
and do not raention the political protection which stands
more or less as an equivalent for the profits received by the
lord from the peasantry. And as for the agrarian arrange
raent, we ought to keep it quite distinct from forms which
are sometimes confused with it through loose terminology.

Chap. VL] £oncftt0ion0, 405
A comraunity paying taxes, farraers leasing land for rent,
labourers without independent husbandry of their own,
may be all subjected to some lord, but their subjection is
not manorial. Two elements are necessary to constitute
the manorial arrangeraent, the peasant village and the
home farm worked by its help.
If we turn now to the evidence of the feudal period, we
shall see that the labour-service relation, although very
marked and prevalent in raost cases, is by no means the
only one that should be taken into account. In a large
number of cases the relation between lord and peasants
resolves itself into money payments, and this is only
another way of saying that the manorial group disaggre
gates itself The peasant holding gets free from the ob
ligation of labouring under the supervision of the bailiff,
and the home estate raay be either thrown over or managed
by the help of hired servants and labourers.
But alongside of these facts, testifying to a progress
towards modern times, we find survivals of a raore ancient
order of things, quite as incompatible with manorial hus
bandry. Instead of performing work on the demesne, the
peasantry are soraetiraes made to collect and furnish
produce for the lord's table and his other wants. They
send bread, ale, sheep, chicken, cheese, etc., sometimes to a
neighbouring castle and sometiraes a good way off. When
we hear of the firma unius noctis, paid to the king's house
hold by a borough or a village, we have to imagine a com
munity standing entirely by itself and taxed to a certain
tribute, without any superior land estate necessarily engrafted
upon it ; a home farra raay or raay not be close by, but its
manageraent is not dependent on the custoraary work of
the vill {consuetudines villae), and the connexion between
the two is casual. The facts of which I am speaking are
certainly of rare occurrence and dying out but they are
very interesting frora a historical point of view, they throw
light on a condition of things preceding the manorial
system, and characterised by a large over-lordship exacting
tribute, and not cultivating land by help of the peasantry.

4o6 ZU QHanot: Anb tU (^x^aq^ tomm\inxt^*
We come precisely to the same conclusion by another
way. The feudal landlord is represented in the village by
his demesne land, and by the servants acting as his helpers
in administration. Now, the demesne land is often found
intermixed with the strips of the peasantry. This seems
particularly fitted for a time when the peasantry did not
collect to work on a separate home farm, but simply
devoted one part of the labour on their own ground to
the use of the lord. What I mean is, that if a demesne
consisted of, say, every fifth acre in the village fields,
the tearas of four virgaters coraposing the plough would
traverse this additional acre after going over four of their
own instead of being called up under the supervision of the
bailiff, to do work on an independent estate. The work
performed by the peasants when the demesne is still in
intermixture with the village land, appears as an inter
mediate stage between the tribute paid by a practically
self-dependent comraunity, and the double husbandry of a
manorial estate linked to a village.
Another feature of transition is perceivable in the history
of the class of servants or rainisters who collect and super
vise the dues and services of the peasants. The feudal
arrangement is quite as much characterised by the exist
ence of these middlemen as modern life by the agreements
and money dealings which have rendered it useless. In
the period preceding the manorial age we see fewer officers,
and their interference in the life of the comraunity is
but occasional. The gathering of tribute, the supervision
of a few labour duties in addition, did not require a large
staff of ministers. It was in the interest of the lord to
dispense as much as possible with their costly help, and
to throw what obligations there were to be performed on
the community itself It seems to me that the feudal age
has preserved several traces of institutions belonging to
that period of transition. The older surveys, especially
the Kentish ones, show a very remarkable development
of carriage duties which must have been called forth by
the necessity of sending produce to the lord's central

CHAP.VL] £;oncftt0{on0. 407
halls or courts, while the home farms were still few and
small. The riding bailiffs appear in ancient documents in
a position which is gradually modified as time goes on.
They bbgin by forming a very conspicuous class among
the tenants, in fact the foremost rank of the peasantry.
These radmen, radulfs, rodknights, riders, are privileged
people, and mostly rank with the free tenants, but they
are selected from among the villagers, and very closely
resemble the hundredors, whose special duties have kept
up their status among the general decay. In later times,
in the second half of the thirteenth century and in the
fourteenth, it would be impossible to distinguish such a
class of riding tenants. They exist here and there, but in
most cases their place has been taken by direct dependents
of the lord. Besides, as the home-farm has developed on
every manor, their office has lost some of the importance
it had at a time when there was a good deal of business to
transact in the way of communicating between the villages
and the few central courts to which rents had to be carried.
And, lastly, I may remind the reader of the importance
attached in some surveys to the supervision of the best
tenants over the rest at the boon works. The socmen, or
free tenants, or holders of full lands, as the case may be,
have to ride out with rods in their hands to inspect the
people cutting the corn or making hay. These customs
are mostly to be found in manors with a particularly
archaic constitution. They occur very often on ancient
demesne. And I need hardly say that they point to a
still imperfect development of the ministerial class. The
village is already set to work for the lord, but it manages
this work as much as possible by itself with hardly any
interference from foreign overseers.
One part of the village population is altogether outside
the manorial labour intercourse between village and c^e-
mesne. The freeholders raay perform sorae labour-services,
but the home-farm could never depend on them, and when
such services are mentioned, they are raerely considered
as a supplement to the regular duties of the servile holders

4o8 ZU QXlAnov Anb tU (Piffage Communi^j.
At the same time, the free tenants are members of the
village comraunity, engrained in it by their participation
in all the eventualities of open field life, by their holdings
in the arable, by their use of the coraraons. This shows,
again, that the manorial eleraent is superiraposed on the
communal, and not the foundation of it. I shall not revert
to my positive arguments in favour of the existence of
ancient freehold by the side of teneraents that have becorae
freehold by exeraption frora servile duties. But I may be
allowed to point out in this place, that negatively the
appearance of free elements among the peasantry presents
a most powerful check to the theory of a servile origin of
the comraunity : it throws the burden of proof on those
who contend for such an origin as against the theory of
a free village feudalized in process of tirae.
In a sense the partizans of the servile community are in
the same awkward position in respect to the manorial
court. Its body of suitors may have consisted to a great
extent of serfs, but surely it must have contained a power
ful free adraixture also, because out of serfdom could
hardly have arisen all the privileges and rights which
make it a constitutional establishment by the side of the
lord. The suitors are the judges in litigation, the con
veyancing practice proceeds from the principle of cora
raunal testimony, and in matters of husbandry, custom and
self-government prevail against anj' capricious change or
unprecedented exaction. And it has to be noticed that
the will and influence of the lord is much raore distinct
and overbearing in the docuraents of the later thirteenth
cmd of the fourteenth century, than in the earlier records ;
one raore hint, that the feudal conception of society took
sorae tirae to push back older notions, which iraplied a
greater liberty of the folk in regard to their rulers.
Whichever way we raay look, one and the same observa
tion is forced upon us : the coraraunal organisation of the
peasantry is more ancient and more deeply laid than the
manorial order. Even the feudal period that has formed
the immediate subject of our study shows everywhere

Chap.vl Concfu0ion0. 409
traces of a peasant class living and working in econo
mically self-dependent comraunities under the loose au
thority of a lord, whose clairas may proceed from political
sources and affect the serablance of ownership, but do not
give rise to the manorial connexion between estate and
village.

APPENDIX.

See p. 62, n. 2.
[Y. B. Pasch. I Edw. II, pi. 4. f 4.]
Symon de Paris porta breve de transgression vers H. bailliffe sire Trans.
Robert Tonny et plusours autres, et se plaint, qe W. et JI. certein
jour luy pristrent et emprisonerent etc. a tort encountre la pees
etc. Fass respond pur toutz, forspris le baiUiffe, qe riens nount
fait encountre la pees, et pour le bailliff yl avowea le restreinement
par la resoun qe lavantdit .S". si est villeine lavandit H. qi bailliffe yl
est, et fuist trove a iVi en soun mes, le quel vint a lui tendist office
de Provoist et il la refusa et ne se voiUeit justicier etc. Tond.
rehercea le avowery, et dit qe a cele avowery ne doit il estre
resceve pur ceo qe S. est Fraunc Citizene de Londre, et ad este
touz ceux diz anz, et ad este Vicounte le Roy en mesme la Citee,
et rend accounts al Eschequer, et ceo voloms averrer par Record,
et uncore buy ceo jour est Alderman et de la Ville de Londre, et
demande jugement, sils puissent villenage en sa persone allegger.
Hierle. A ceo qil dient qil est citezen de Londre nous navoms qe
faire, mes nous vous dioms, qil est villein i?. de Eve et de Treve,
et les Auncestres Ael et Besayel et toux ces Auncestres ses terres
iennaniz deinz le manoire de N. et ces Auncestres seisitz des villeins
services des Auncestres S. come affaire Rechat de Char et de Sank
et de lille marier, et de euz tailler haut et bas, etc., et uncore est
seisi de ces freres de mesme le piere et de mesme la mere et
demande Jugement si sour luy, come sour soun villein en soun
mese trove, ne puisse avowere faire. Tond. Fraunc homme et de
fraunc estat et eux nient seisi de luy, come de lour villein prest etc.
Ber. Jeo ai oi dire qe un homme fuist prist en la bordel, et fuist

412 ^^ippinbx^,
prist et pendu, et sil eust demorre a lostiel, il neust en nul mal etc.
auxient de ceste parte, sil eust este fraunc Citezen pur qe neust il
demorre en la Citee ? Ad alium diem ; Tond. se tient qil ne fuist
seisi de lui come de soun viUein ne de ses villeins services etc.
Pass, la ou il dit qe nous ne sumes pas seisis de lui come de
nostre viUein, il nasquit en nostre villeinage, ou commence nostre
seisine, et nous lui. trova mese en soun mes, et la nostre seisine
continue, Jugement. Ber. Vous pledietz sour la seisine, et il pleident
sour le droit issint naverrez jamas bon issue de plee. Herle. Seisi
en la fourma qa nous avoms dit. Ber. La Court ne restreinera tiel
travers sanz ceo qe vous dietz, que vous estez seisitz de lui come de
vostre villein et de ses villeinz services, et sic fecit. Et alii e contra.
II.
See p. 54, n. i.
[Y. B. Trin. 29 Edw. Ill, f 41. I do not give a translation of this
document because it has been explained with some detail in my text.]
Surl'es- Le servant suit par attorney, et le Master in propre persone.
tatut de Qyg (jj(. qg Jg servant fuit soun villain regardant al Manoire de C.
et dit qil avoit mestre de sas services at de luy, pur qa nous luy
prisoms come nostre viliain, come list a nous. Jugement si etc.
tort in nostra party par tiel rateignement puit assignar. Et nota,
qil fist protastacion, qil ne conust pas qil fuit in le service le
plaintiffa etc. Et nota, qa le servant dit auxi, qil fuit la villein le
Master qi plede, et dit qil fuit distreint, et auxi les amis pur luy
tanqa qil convansist par coharcion venir a ses Saigneours. Burt.
Le servant est par attorney, qa ne puit par soun pie faire sans
Master villein. Purqa cao pie ne gist in soun bouche. Et non
allocatur par 'Wilb. qi dit qe la pla nest pas al breve : car masqe il
fuit icy in propre persone, et voillet conustre qil fuit villain ce
nabat pas vostre breve (le quel qil fuit frank ou villein) si vous
poles maintenir qil fuit in vostra service, si ce na fuit par autiel
matrier (come il ad plade) ou autre semblable. Et puis le servant
wayva, at dit qil na fist pas covenant etc. Et alii e contra. Et
nota, qa I'opinion fuit, qe si villain fuit chace et distreint de venir a
son Seignour propre, qe ce luy excusera del' penance dal I'estatut.
Sed Burt, negavii, ao qe ce vient de sa folia qil voilleit faire covenant
dautre servir, qant il fuit appris qil fuit autry villain. Et ideo quere.

tA0^0 on (^xiiAxnAC^t, 4^3
Qant al' plea le Master Burt, challange ceo qil navoit pas
alleger qil fuit saisi da luy coma da soun villein. Et non allocatur
par 'Wilb. Qui dit sil soit soun villain, soun plea est assez fort : car
seisi et nient saisi ne fara pas issue. Et sic nota. "Puis Burt, dit Op. Curiae.
que Ton allege est quil est soun villain regardant a soun manoire da
C. nous dioms qe masma le manoire fuit in le seisin un A. que
infeffa la defendant de masma la manoire ; at dioms qe tout le
temps qua il fuit allant et walkant a large a sa frank volunte come
frankhoma, sans ca qil fuit unque saisi de luy in son tamps, et caty
qe ad I'astat A. ne fuit unquas saisi de luy, tanquas ore qil da
soun tort demesne luy pris hors de nostra service. Purqua nous
nentendons pas que par tiel causa il nous puit ouster de nostre
accord. Finch. Et nous Jugement, depuis qil ne dedit pas qil
nest nostre viUain da nostre manoire da C. et la quel nous fuit
seisis de luy davant, ou non, ou nostre feffor seisi, etc. ou ca ne
puit my astre a purpose : car il alast alarge, purtant ne fuit il
enfranchy. Purqua etc. Th. Si vostra feffor ne fuit unques seisi
de luy, comant qil vous dona la manoira, jao di qua ca de que il
navoit pas le possession ne puit pas vastir in vous. Purqua etc.
fer. ViUains regardants al' manoiras sont de droit al' Saignour de
prendre les a sa volunte, at sil face don le manoire a un autre, a
quel heur qua I'autre las happa, il est asses bon. Th. Sir, uncre
mesque il soit issint antra luy at le grantor ou le viUein, nous qe
sums estrange ne sarrons pas ly purtant : car si home qi soit
estrange veigne in pais, et damurges par xx ou xxx ans, et nul
home mat debat sur luy, ne luy claime coma saruant, il list a moy
de prendre soun service, at de luy racevoir in mon service pur la
terme solonque nostra covenaunt : at il nest pas raason qa jao soy
perdant, depuis qa in moy default ne puit atra ajuge, causa ut
supra. Gr. Per mesme le reason qa vous luy purrats retanir
tanque al' fine de terma, si poit un autre : et sic de singulis, et sic
in infinitum : issint la Saignour ouste de soun viUain a toujours, at
ce ne seroit pas raason. Puis Th. n'osa pas demurrer ; mes dit
qU ne fuit pas soun villein de soun manoira da C. Prest etc. Fiff.
Ceo n'est pas raspons : car coment qil n'est pas soun viUein del'
manoire, etc. sil fuit soun villein in gros, asses suffist. Et non Op. Curiae.
allocatur pur ca quel avoit traverse soun respons in le manara coma
ce fuit livere, etc.

414 Mppinbix,
Common Pleas Boll (Record OflBLce).
[Trin. 29 E. Ill, r. 203, v. Oxon.]
Thomas Barentyn et Radulfus Crips Shaphird attachiati fuerunt
ad respondendum tam domino Regi quam Priori hospitalis Sancti
lohannis lerusalem in Anglia quara, cum per ipsum dominum
Ragam et consilium suum pro communi utilitate regni Regis
Anglie ordinatum sit, quod si aliquis seruiens in seruicio alicuius
retantus ante finem termini concordati a dicto seruicio sine causa
racionabili vel licencia recesserit, penam imprisonamenti subeat
et nullus sub eadem pena talem in seruicio suo recipere vel reti
nere presumat, at predictus Thomas predictum Radulfum nuper
seruiantem predicti Prioris in seruicio suo apud Werpesgrave
retantum qui ab eodem seruicio ante finem termini inter eos
concordati sine causa racionabili at licencia predicti Prioris re
cassit, in seruicium predicti Thome quamquam memoratus
Thomas de prefato Radulfo eidem Priori restituendo requisitus
fuerit admisit et retinuit in Regis contemptum et predicti Prioris
grave dampnum ac contra ordinacionem predictam Et unde pre
dictus Prior per Ricardum de Fifhide attornatum suum queritur
quod cum per ipsum Regem et consilium suum etc. ordinatum
sit quod si aliquis serviens in servicium alicuius retantus ante
finam etc. a dicto seruicio sine causa etc. recesserit panam im
prisonamenti subeat et nullus sub eadem pena talam in seruicio
suo recipere val retinere presumat predictus Thomas predictum
Radulfum nuper seruientem predicti Prioris in seruicio suo apud
Werpesgrove retantum scilicet die Lune proxima post festum
Sancti Laurentii anno regni domini Regis nunc Anglie vicesimo
octavo ad deseruiendum ei in officio pastoris etc. scUicet die
Lune in septimana Pentecostes a festo Sancti Michaelis Archangeli
tunc proximo sequenti per unum annum proximum saquantem
qui ab eodem seruicio ante finem termini . . . recessit, in seruicium
predicti Thome quamquam idem Thomas de prefato Radulfo
eidam Priori restituendo requisitus fuerit admisit et retinuit in
Regis contemptum et predicti Prioris grave dampnum ac contra
ordinacionem etc. et predictus Radulfus a seruicio predicti
Prioris ante finam sine causa etc. videlicet predicto die Lune in
septimana Pentecostes recassit in Regis contemptum ad predicti

tA0C0 on (piffainage 415
Prioris grave dampnum ac contra ordinacionem etc. unde dicit
quod deterioratus est et dampnum habet ad valenciam viginti
librorum. Et inde producit sectam.
Et predicti Thomas et Radulfus per Stephanum Mebourum
attornatum suum vaniunt. Et defendunt vim at iniuriam quan
do etc. et quicquid etc. Et protestantur quod ipsi non cog
noscunt quod predictus Radulfus fuit seruiens predicti Prioris
nee retantus cum eodem Priore prout Prior superius versus aos
narravit et predictus Thomas dicit quod predictus Radulfus est
villanus suus ut de manerio suo de Chalgrave per quod ipse seisivit
eundem Radulfum tanquam viUanum suum prout ei bene licuit.
Et hoc paratus est verificare unde petit indicium si predictus
Prior injuriam in persona sua assignare possit. Et predictus
Radulfus dicit quod ipse est viUanus predicti Thome ut da manerio
predicto et quia idem Radulfus extra dominium predicti Thome
morabatur parentes ipsius Radulfi districti fuerunt ad venire
faciendum predictum Radulfum ad predictum Thomam dominum
suum et ad eorum sectam et excitacionem idem Radulfus vanit
ad predictum Thomam absque hoc quod ipse retantus fuit cum
predicto Priore ad deseruiendum ei par tempus predictum prout
idem Prior superius versus eum narravit. Et de hoc ponit se
super patriam. Et predictus Prior similiter. Et idem Prior quo
ad placitum predicti Thome dicit quod predictus Radulfus non est
villanus ipsius Thome ut de manerio suo predicto prout idem
Thomas superius allegat. Et hoc petit quod inquiratur per patriam.
Et predictus Thomas similiter. Preceptum etc.
III.
See p. 66, n. 2, and p. 76, n. 2.
The so-caUed Mirror of Justice is stiU in many respects an
unsolved riddle, and a very interesting one, as it seems to me.
The French edition of 1642 from which quotations are so frequently
made presents a text perverted to such an extent, that the gentieman
from Gray's Inn to whom we owe the English translation of
1648 took it upon himself to deal with his original very freely,
and in fact composed a version of his own which turned out
even less trustworthy than tha French. Ancient MSS. of the work
are very scarce indeed; the fourteenth century MS. at Corpus

4i6 Mpp^nbxx*
College, Cambridge, is the only one known to me ; although there
are also some transcripts of the seventeenth century. This
means that the work had no circulation in its time. It is very
unlike Bracton, or Britton in this respect, and indeed in every
other. Instead of giving a more or less learned or practical
exposition of the principles of Common Law it appears as a
commentary written by a partisan, acrimonious in form, almost
revolutionary in character, fuU of stray bits of information, but
fanciful in its way of selecting and displaying this information.
' Wahrheit und Dichtung ' would have been a proper title for
this production, and no wonder that it has excited suspicion. It
has commanded tha attention of the present generation of scholars
notwithstanding the odd way in which the author, Andrew Home,
or whoever he may ba, cites as authority fictitious decisions given
by King Alfred and by a number of legal worthies of Saxon times
who never gave judgment save in his own fruitful imagination.
This may be accounted for by peculiar medieval notions as
to the manner in which legal discussion may be most
efficiently conducted, but altogether tha Mirror, as it stands,
appears quite unique, quite unlike any other legal book of the
feudal period. It must be examined carefuUy by itself before
the information supplied by it can be produced as evidence on
any point of English medieval history. Such an examination
should lead to interesting results, but I must reserve it for another
occasion. What I have said now may be taken simply as a
reason for the omission in my text of those passages of the Mirror
which bear on tha question of vUlainaga. I may ba allowed to
discuss these passages in the present Appendix without anticipating
a general judgment on the character of the book and on its value.
The author of the Mirror shows in many places, that he
is hostile not only to monarchical pretensions, but also to the
encroachments of tha aristocracy. He is a champion of the
lower orders and gladly endorses every rule set up by the Courts
'in favour of liberty.' In this light he considers the action
' da nativitate ' as conferring an advantage upon the defendant,
the person claimed as a villain, but considered as free until
the contrary has been proved ^ Another boon consists in the
' ' Cest action est mixte en favour de franchise car rarement se sustreit
nul del fief de son seiniur, s'il ne soy claime frank ' (p. 165).

zu Qtlttrrotr. 417
fact, that the trial must be reserved for the decision of the Royal
Courts and cannot be entertained in the County \ So far the
Mirror falls in with .the usual exposition of our Authorities — it
takes noticd"of two facts which are generally recognised as im
portant features in trying a question of status. But the Mirror does
not stop there, but further formulates an assertion which cannot
be considarad as generally accepted in practice, though it may
have emerged now and then in pleadings and even in decisions.
It is wall known, that tha main argument in a trial of vil
lainage turned on the question of kinship. As Britton (pp.
205, 206, ed. Nichols) states tha matter, we ara led to suppose
that tha plaintiff had to produce tha vUlain kinsmen of the
parson claimed, and the defendant could except against them.
Glanvilla (.v. 4) says, that both parties had tha right to produce
the kindred and in case of doubt or collision a jury had to decide.
If the fact of relationship were astablishad on both sides, it was
necessary to sae on which side the nearer relatives stood. Legal
practice, so far as we can judge from the extant plea rolls,
foUowed Glanville, although questions arising from these suits
were much more varied and complicated than his statement
implied. (Sea, for instance, Bracton's Note Book, 1041, 1167.)
But in the Mirror we find the distinct assertion, that if the
defendant in a casa of 'nativity' succeeded in proving a free
stem in any generation of his ascendants, this was sufficient
to prove him frae ^- This connects itself with tha view, that thera
can ba no prescription against free blood, a view which, as we
have seen in the text, was in opposition to tha usual conception
that people may faU into servitude in the course of several ganara-
tions of dabasamant. Tha notion embodied in the Mirror was
lingaring, as it were, in the background.
1 P. 168.
' P. 212 : 'Si le defendant puisse monstrer frank cep de ses Auncestres
en la conception ou en la nativity ou puis, y' ert le defendant tenable
pur frank a touts jours tout y soyent present pere et mere frere et cosins
et tout son parenter que soy coynossent estre serfs al actor, et tesmoignent
le defendant estre serf Le autre notability est, que nient pluis ne fait long
tenure de villeinage franchome serf que long tenure de frank fieu ne fait
home serf frank, car franchise ne soy defait jammes par prescription de
temps.' P. 166 : ' Servage est un subjection issuant de cy grand antiquite,
que nul frank ceppe ne purra estre trouve par human remembrance.' Cf.
Britton, i. ig6.
VOL. L E e

4i8 ^pptnbx)c.
In accordance with this liberal treatment of procedure, we find
our author all in favour of liberty whan treating of the ways by
which bondage may ba dissolved. Ha gives a very detailed
enumeration of all such modes of enfranchisement, and at least
one of his points appears unusual in English law, I mean his
doctrine that a serf ejected from his holding by tha lord bec&mes
frae, if no means of existence ara afforded to him S
Tha motive adduced is worthy of notice by itself ' Servus
dicitur a servando,' a serf is a man under guardianship, like a
woman in this respect ", and so, if the guardian forgets his duty of
taking care of his subject, he forfeits his rights. The Roman
derivation ' a servando ' is often met alsawhare, but instead of being
applied to the bondman as a captive who has bean kept alive
instead of being slain, it is here made tha starting point of a
new conception and one very favourable to tha bondman. It is
not the only indication that the author of the Mirror had been
speculating about the origin of servitude. By tha law of nature
all man ara fraa, of course, but yet, says ha, there exists by human
law a class of men to whom nothing belongs, and who are
considarad as tha property of other people : an anomaly which he
guesses may possibly coma from the time when Noah pronounced
his malediction against Canaan, the son of Cham, or else from
tha defeat of Goliath by David'.
It is curious too, and at first sight rather inconsistent, that our
author sometimes speaks against those very serfs towards whom
he seams, as a rule, so favourably disposed. Ha dwells on thair
disability, marks as an abuse that thay are admitted to act in the
courts without the help of their lords, although nothing can be
owned by them*, and, what is mora, he insists on the necessity
of their being excluded from the system of frank-pladga, which
' P. 167 : ' ou si son seignior Juy eject de son fief, et luy done suste
nance (corr. ne luy done sustenance).' 294 : 'Abusion est que home puisse
challenger celuy pur son naife a que il ne trova unque sustenance, de
sicome serf nest my serf forsque tant come il est en gard, et de sicome
nul ne poet challenger son serf pur serf tout soit il en sa garde s'il
retrouve (corr. ne trouve) sustenance a son serf que luy vault mees et
terre en son fief, ou il purra gaigner sa sustenance, ou autrement luy
retient en son service.' Cf i6p.
= Cf p. 155.
' P. 166.
' P. 294.

zu (Wlimtr. 419
ought to be restricted entirely to frae men''. All this seems rather
strange at first, and certainly not in favour of liberty. It turns out,
however, that these very qualifications are prompted by tha same
liberal spirit which wa noticed from the first ; they are suggested by
a most characteristic attempt to draw a definite lina between the
serf and the vUlain.
The villain is no serf, in any sense of tha word. Ha is a free
man^ his tenura is a frae tenure'. He is enfeoffed ofhis land, with
the obligation to till it, as the knight is enfeoffed of his fee in return
for mUitary service ; the burgess enfeoffed of his freehold in the
borough for a rant *, The right of ownership on the part of the
villain is clearly recognised in the Great Charter, which prescribes
the mode and extant of amercing viUains, and thereby supposes
their indapandant right of property, while the serf has nothing of
his own, and could not be amerced in his own^ The author
undoubtedly hits hare on a point where tha usual feudal theory
' lb. p. 294. 'Abusion est que serfs sont frank pledges ou pledges de frank
home.' Cf no.
" P. 169. ' Nota que villeins ne sont my serfs car serfs sont dits de
garder sicom est dit.' 295 : 'Abusion est a tenir villeins serfs, et ceste
abusion merust grand destruction de poor people, grand poverty, et grand
peche.' ' P. 291 : ' Abusion est que Ion dit que villenage neste my frank tene
ment — . car villein et serf ne sont my en (corr. un) voice, ne en (corr. un)
signification, eins poet chascun frank home tenir villenage a luy et a ses
heires fesant le servage et le charge del fiew.'
* P. 170: 'Ascuns receverent fiefs assoubs de chescun obligation sicome
per service faire ou en pure almoigne, ascuns a tenir par homage, et en
service al defense del Realme, et ascuns par villeins customes d'arrer,
over charrier, sarclir, franchir, seier, tasser, batre ou tilt autres manners
de services, et ascun foits sans reprise de manger; et dont plusors fines
sont troves levees en le tresore que font mencion de ceux services et viles
customes faire, aussi bien come autres de pluis curtoise services, et dount
tout soit que tiels gents ne eient point de chartres, ne monuments sils soient
nequident engettes ou disturbes de lour possessions a tort, droit les succort
per F assize de novel disseisine attenir en le state come devant per cy que
ils puissent averrer que ils scavoient lour certaintie de services et doveraignes
per an come ceux que auncestres avant eux furent astrers de pluis longe teinps
per case que les disseisors nen furent seigniors'
° 169 : ' Villeins sont cultivers de fief demorants en villages uplande,
car de Vile est dit Villeins, de Burgh Bourghois, et de Cite Cittizens, et
de Villeins est mencion fait en le Chartre de Franchise, ou est dit, que
villein ne soit mie cy grivement amercie que sa gaigneur ne soit a luy
salve, car de serf ne fait il my mention pur ceo que ils ount rien propre que
perdrent. Et de Villeins sont lour gaignures appelle Villenages.'
E e a

420 dRpp^n5ix»
had bean discountenanced by statute : it was certainly difficult to
maintain at the same time that the vUlain, as serf, had nothing
but what had been precariously entrusted to him by tha lord, and
at tha same time that he must suffer for misdeeds in the character
of an owner. Strained in one sense tha article ofthe Charter could be
made to mean that, at the time of tha Great Charter, there was no
such thing as tha civU disability of servitude in England. Strained
in another sense suggested by tha Mirror, it would lead to. a
standing distinction between viUains, as owners, and serfs, as people
devoid of civil rights. Wa know that legal practice preferred a
compromise which was anything but consistent in point of doctrine,
but, as I have said in my text, tha notion of the civU right of the
viUain, and especiaUy in his so-called wainage, seams to have been
deep-rooted enough to counterbalance in some respects the current
feudal doctrine.
It would have been difficult for the author of the Mirror to
maintain that practice was in accordance with his theory; and
ha faUs out of his part now and then, as, for instance, whan
he speaks of the enfranchisement of the serf from whom the
lord had received homage in addition to fealty — this is a case
clearly applying to vUlains as well as to those whom he caUs serfs,
and it is not tha only time that ha forgets the distinction '- But
when his attention is not distracted by details he takes his ground
on the assumption that the original rights of the villains were
gradually faUing into disuse through the encroachments of the
stronger people. Wa even find in the Mirror that tha villains
ought to have the assisa of novel disseisin as a remedy in casa of
dispossession. If they were oppressively made to render other than
the accustomed services they had to resort to tbe writ, ' na injuste
vexes,' and it is a sign of bad times that they are getting deprived
of it. Edward the Confessor took good care that tha legal rights of
the viUains should not be curtailed ^- It is needless again to point

' 167. On the other hand it is mentioned, that serfs cannot be devised
because they are astriers and annexed to the free tenement of the lord.
^ 171 ; 'Et de ceo soy entremist Seint Edward en son temps d' enquirer
de toutes les .... que luy fesoit a tiel gaignors oustre lour droit et en
fist grande vengeance. Et puis pargents que meins doulent pecheir que
faire ne duissent sont plusiours ceux villeins par tortious distresses chasses
a faire a lour seignours le service de Rechat de sank, et plusors autre
customes voluntaries pur mener les en servage a lour poiar, dont lour

<S ca0^ of Qtlanum{00ton. 421
out that this view of viUainage is well in keeping with the funda
mental notion which I triad to bring out in my text, tha notion,
namely, that the law of viUainage contained heterogeneous elements,
and had been derived partly from tha status of frae ceoris.

IV.
See p. 87, n. i.
[Coram Rege lo Henry III, N. 26, m. 4. d.]
Assisa venit recognitura si lohannes Cheltawynd iniuste etc.
disseisiuit WiUelmum filium Roberti de libero tenemento suo in
Cheltewynd post ultimum etc. Et lohannes venit et dicit quod
non disseisiuit eundem Willelmum de aliquo libero tenemento quia
villanus suus est at nullum habet liberum tanemantum et quod
Robertus pater suus fuit villanus. Et Willelmus dicit quod tene
mentum illud liberum est at quod Robertus pater suus libere
tenuit da Ada patra lohannis de Chatawod at per cartam quam
profert in haec verba quod Adam de Chetwud concessit Roberto
filio Wourami patri WiUelmi at heredibus suis dimidiam virgatam
terra cum pertinenciis in Chetwud in feodum at hereditatem
tenendam da eodem Roberto et heredibus suis libere quiete cum
omnibus consuetudinibus et libertatibus quas ceteri franci homines
habent pro 26 denariis par annum reddendo pro omni servicio at
pro omnibus rebus ad eum et heredes suos pertinentibus.
Et lohannes bene cognoscit cartam illam at dicit quod idem
Robertus fuit villanus patris sui et par pecuniam domini sui
redemptus fuit a saruitute at quod antequam esset liberatus a
servitute fuit idem WiUelmus nativus, et petit judicium si per
cartam quam pater suus ei fecerat debeat esse libar tempore
lohannis cum radamptus esset per pecuniam patris lohannis at
Robertus nichil proprium habuit cum essat viUanus. Et dicit quod
idem WiUelmus non fuit nisi custos patris sui de aadam terra dum
pater suus fuit alibi manens.
remedie per le ne injuste vexes per les negligence des Royes ' (the end of the
sentence is evidently omitted or ' is falling into disuse ' must have been
meant^.  p. 305 : ' abusion est que le briefe de ne injuste vexes va issint en
decline.'

422 3^Tpptnbxjt.
Post uenit Willelmus et retraxit se et ideo in- misericordia
Pauper est. Et lohannes dat ei III marcas at Willelmus ramanat
etc. Ita quod idem WiUelmus ibit quocumque uoluerit. Et
lohannes quietum clamauit WiUelmum de omni saruitute.

V.
See p. 90, n. 4.
[De Banco Roll, Michaelmas, 15 Edw. II, m. 271.]
Abbas da Sancto Edmundo attachiatus fuit ad respondendum
Rogero filio WiUelmi Henri homini praedicti Abbatis da ma
nerio da Mildenhala quod est de antiquo dominico corone Anglie
etc. da placito quare exigit ab ao alias consuetudines et aUa
servicia quam facere debent at antecessores sui tenentes de eodem
manerio facere consueverunt temporibus quibus manerium illud
fuit in manibus progenitorum Regis quondam Regum Anglie contra
prohibicionem Regis ate. Et unda idem Rogerus per Petrum de
Elyngham attornatum suum dicit quod ipse at antecessores sui
et quUibet tenens unum messuagium et quindecim acras terre
cum pertinenciis in eodem Manerio sicut idem Rogerus tenet
tempore quo Manerium illud fuit in manibus Sancti Edwardi
Regis quondam Regis Anglie proganitoris Domini Regis nunc
tenuit tenementa sua per fidelitatem et servicium inveniendi
unum hominem ad tenendum val fugandum carucam Domini
singuUs diebus anni quando caruca arare consueverunt tantum
pro omni servicio et habere consuevit carucam Domini qualibet
altera septimana singulis annis per diem Sabbati ad terram suam
propriam arandam vel carucam illam aliis locandam et similiter
sextam partem vesture unius acra ordei et medietatem vesture
unius rode frumenti de malioribus tempore messis at prandium
suum ad nonam singulis annis par sex dies in anno in aula
Domini sumptibus ejusdem Domini sciUcet in diebus Sancti
Michaelis, Omnium Sanctorum, NataUs Domini, Purificacionis
Beate Maria, Pascha et Pentecostes et oblacionem suam singulis
annis per quatuor dies in anno scUicet in diebus NataUs Domini,
Purificacionis Beate Maria, Pasche at Assumpcionis Beate Marie
Virginis scilicet quolibet die unum denarium et per hujusmodi

dR ca0e from tU dSncien^ ®eme0ne. 423
cartas consuetudines et servicia ipse at omnes antecessores sui
tenementa quae ipse modo tenet tenuerunt a tempora quo non
axstat memoria usque ad tempus istius Abbatis quod idem Abbas
praetar praedicta servicia exigit ab eo singulis vicibus quibus
aliquis Abbas est da novo craatus finam ei praestandum pro capa
sua ad voluntatem suam at pro filiis at filiabus suis maritandis
at pro terris suis dimmittandis at pro ingressu habendo in heredita
tem suam post obitum antecessoris sui finem similiter ad volun
tatem suam ac idem Rogerus dia Jovis proxima ante festum
Apostolorum Simonis at Jude anno regni Domini Regis nunc
quartodacimo apud Sanctum Edmundum in praasencia Thome
de Wridervill Roberti TiUote Philippi de Wangeford Roberti
de Lyvarmere at aliorum libarasset praedicto Abbati breve Regis
de prohibiciona et ei inhibuissat ex parte Domini Regis ne idem
Abbas exigeret ab ao alias consuetudines et alia servicia quam
ipse at antecessores sui tenentes de eodem Manerio facere con
sueverunt temporibus quibus Manerium illud fuit in manibus pro
genitorum Regis quondam Regum Anglia. Idem Abbas spreta
regia prohibicione praedicta nihUominus postmodum exigit ab ao
praedicta superonerosas consuetudines at ad ea sibi facienda per
graves at intoUerabiles districciones distringit quominus terram
suam axcolera potest unda dicit quod deterioratus est et damp
num habet ad valenciam centum librarum. Et inde producit
sectam etc.
Et Abbas per Willelmum de Bakaham attornatum suum vanit
Et dicit quod non debet praedicto Rogero ad hoc breve nee ad
aliquod aUud breve respondere. Quia dicit quod idem Rogerus
est villanus ipsius Abbatis et viUanus ecclesie sue Sancti Edmundi.
Et quod ipsa seisitus est de ipso tanquam da viUano suo unde
petit judicium ate. Et Rogerus dicit quod ipse est homo ipsius
Abbatis da Manerio da MUdanhala quod est de antiquo dominico
corone Anglia Et quod MUdenhale sit de antiquo dominico
Corone Anglie paratus est verificare per librum Domesday Et
super hoc inspecto libro praedicto comperta sunt in eodem verba
subscripta.— Suffolk— Inter terras Stigandi quas Willelmus Den-
vers servat in manu Regis. — Lacforde _ Hundred. MUdenehaUa
dedit Rax Edwardus Sancto Edmundo et post tenuit Stigandus sub
Sancto Edmundo in vita Regis Edwardi pro manerio xij carucate
terra tunc at post xxx uUlani modo xxxiij. Tunc viij. Bordarii
post et modo xv. semper xvj. servi semper vj caruce in domir

424 3^ip)pinbip,
nio et viij caruce hominum et xx acre prati ecclesia xl acrarum
et j molendinum at iij piscaciones et dimidiam xxxj equa silvatice
xxxvij averia et Ix porci et Mille oves et viij socamanni xxx
acrarum semper dimidia caruca. Huic iacet i bervita — Et quia
ex verbis praedictis videtur Curia quod Mildenhala est de antiquo
dominico corona etc. dictum est praedicto Abbati quod re
spondeat quod sibi viderit axpadira etc.
Et Abbas dicit sicut prius quod praedictus Rogerus est viUanus
suus et ecclesie sue praedicta et quod ipsa seisitus est de ipso ut
da viUano suo et quod ipsa et omnes Abbates de Sancto Edmundo
praedecessores ipsius Abbatis ex tempora quo non extat memoria
seisiti fuerunt de ipso Rogero et antecessoribus suis ut de viUanis
suis taUiando ipsos alto at basso pro voluntate sua et faciendo de
ipsis praepositos et messores suos et capiendo ab eis merchetum
pro filiis et filiabus suis maritandis et finem pro terris suis dimit-
tendis et pro ingressu habendo in terris et tenementis post mortem
antecessorum suorum ad voluntatem ipsorum Abbatum. Et hoc
paratus est verificare etc.
Et Rogarus dicit sicut priuS quod ipse est homo de antiquo
dominico corona AngUa da praedicto Manerio da MUdenhale et
quod ipsa et omnes antecessores sui a tempore quo non axstat
memoria tenuerunt tenementa sua praedicta da praadecessoribus
praedicti Abbatis et de progenitoribus Domini Regis Regum
Anglia quondam Dominis ejusdem Manaru per praedicta carta
servicia et consuetudines in narracione sua superius contenta
absque hoc quod praedecessores praedicti Abbatis fuissant seisiti
da ipso Rogero aut antecessoribus suis ut de villanis suis taUiando
ipsos alto et basso vel faciendo de ipsis praepositos at messores
aut capiendo de ipsis incertas consuetudines at servicia sicut prae
dictus Abbas dicit. Et hoc petit quod inquiratur per patriam Et
praedictus Abbas similiter Ideo praeceptum est Vicecomiti quod
venire faciat hie a dia Pasche in tres septimanas xij etc. per quos
etc. at qui nee etc. ad recognicionam etc. Quia tam etc.
See p. 97, n. 2.
Tha MildenhaU trial just quoted may serve as an instance of
litigation between lord and tenant of a manor in ancient demesne,
when it took place before tha Royal Courts. The RoUs of King's
Ripton, Hunts, now published by Prof. F. W. Maitland, for the

zu BxttU (^xxt 425
Selden Society, give an insight into the working of the Manorial
Court itself when it had to decide between lord and tenant in a
question of right (pp. 118 et sqq). Jane the daughter of WiUiam
of Alconbury claims eight acras of land against the Abbot of
Ramsay, lord of tha manor. He does not choose to answer at
once and takes advantage of all the procrastinations usual in such
matters. Three times ha gats summoned and does not appear;
tha Court proceeds to distrain him and after three distraints
he essoins himself three times before making up his mind to
answer by attorney and to ask a view of the land. Pleadings
follow in tha usual course, and ultimately a sworn inquest has
to decide on the question whether the plaintiff was of full age
at the time oi a transaction through which tha land claimed
came into the hands of the Abbot. The point is, that the lord
of the Manor is placed entirely on the same footing in regard
to the action of his tenant as any other suitor.
In 1296 an action of dower occurs between a certain Maud
Grayling and a number of persons holding land within the manor.
It is opened by a writ of right -vihich is bound up with tha roll, but
has not been printed by Mr. Maitland as it does not contain any
thing of special interest. Tha beginning of this writ is typical —
it does not mention the abbot, but only the bailiffs of the abbot :
[Edwardus Dei gratia Rex Angliae] Dux Aquitaniae, Ballivis
Abbatis da Rameseye de Riptone Regis Salutem. Precipimus
vobis quod sine dUaciona at secundum con[suatudinem manerii
de Riptone Regis plejnum rectum teneatis Matildi que fuit uxor
Hugonis Grayling da medietate sex messuagiorum sexaginta et
qua[tuor acrarum] et unius rode [terre dimidia acra prati] cum
pertinenciis in Riptone Regis, unde etc. (Court of Augmentation,
Portf. XXIII, N. 94, r. 9). On pp. 100-104 Mr. Maidand gives
the translation of two most valuable records of Monstraverunt in tha
Court of King's Bench between the men of King's Ripton and
the Abbot. Tha suit is very similar to that of the man of MildenhaU ;
and indeed aU these ancient demesne trials turn on tha same
points.

426 3R,pi(>^nbx)i,

VI.
See p. 91, n. 3.
Tha Stoneleigh Register, in the possession of Lord Leigh, is
certainly one of the most interesting surveys of a medieval manor
extant, and gives a batter insight into tha condition of ancient
demesne than any other document I know of. Its publication would
be particularly desirable in the interests of social history. This
compUation is indeed a lata one, but it has been made with
great care and evident accuracy from tha original records which
go back even to Henry H's time. One part is especially important,
because it gives selections from the Court Rolls of tha Manorial
Court. An extract from tha compiler's Introduction will show
the nature and grouping of his material.
F. 2, a : In quorum primo libro agitur de generacione nobilium
regum Anglia incipiendo modicum ante conquestum usque ad
presens sumarie concepta. Et de possessionibus et graciis per
eos nobis factis et coUatis, tam in monasterio da Rademora quam
in monasterio de Stonleya. Ac eciam de diversis mamorandis
ccwisuatudinibus, placitis, feuffamentis, diuisionibus tenementorum
in villa et hamelettis de Stonle. Et de bundis et peranbulacionibus
dicti manerii de Stonle. Ac subsequenter de actis abbatum de
Stonle a tempore fundacionis quod infra intitulabitur usque ad
presens videlicet usque ad feriam quartam in festo Sancti Gregorii
pape anno domini millesimo trecentesimo nonagesimo secundo, anno
vero domini Regis AngUe Ricardi secundi post conquestum
sexto decimo. In secundo libro continentur memoranda de viUis de
Hartona, Cobsitone. . . . Erdyngtone ... In tertio libro conti
nentur diversa memoranda tam nos quam alios tangencia et aha
informatiua abbatum iuniorum consilia racionabilia secundum
antiquas consuetudines, extantas, computaciones par quas poterit
a nociuis abstinari, videlicet in diuisionibus possessionum et aliis
faciendis pro bono et conseruacione juris monasterii. In quarto
libro summarie scribuntur copia diuersorum priuilagiorum at
diuersarum composicionum decimaru'm at placitorum. Et da
diuersis casibus et defensionibus super eisdem. Item in casu quo
facta esset commissio aUcui abbati a curia Romana et a ganarali
capitulo.

zu ^toMkxQ^ (ge0i0(eir. 427
The following passage is characteristic of the conception of
ancient demesne: (4, a) Prefatus dominus Edwardus rex habuit
in dominico suo iure hereditario manerium de Stonle cum membris,
videUcet Kenilworth, Bakyngtone, Ruytone at Stratona, una cum
aliis terris et maneriis. Que quidem maneria existencia in
possessione at manu domini Regis Edwardi per universum
regnum vocantur antiquum dominicum corone Regis Anglie prout
in Ubro de Domusday continetur.

See p. 116, n. 4.
F. 21, a: Henricus Dei gracia Rex . . . venire facias coram
nobis Alexandrum de Canle . . . et Hugonem le Seynsterer, ita
quod sint apud KanUworth in octabis Sti Edwardi ostensuri quo
warranto subtraxerunt prefatis Abbati at Conventui quasdam
consuetudines, libertates et jura ad Sokam de Stonle spactantas
. . . anno regis nostri quinquagesimo . . . Et unda predictus
Abbas pro sa at Rogero Loueday qui sequitur pro Rege dicunt
quod, cum manerium de Stonle fuit antiquum dominicum domini
Regis . . . quiUbet tenens ipsius manerii unam virgatam terre
consuevit reddere ipsi domino Regi per annum 30 denarios et facere
sectam ad curiam suam de Stonle' de tribus septimanis in tres . . .
predictus Alexander qui unam virgatam terre de antiquo et tres
rodas de assarto tenet, de quibus reddit Roberto de Canle predictum
redditum et 18 denarios pro predicta secta subtrahenda et pro
predicto assarto denarium et obolum . . . Predictus Robertus de
Canle tenet duas virgatas terre pro 5 solidis et omnes tenentes
predicti secundum tenuras suas detinent predicto Abbati predictas
sectas pro quibus dictus Robertus da Canle capit a predictis
tenentibus secundum tenuras S^folio 22] suas, scilicet pro una uirgata
30 denarios et de maiori tenura plus et da minori minus. Et de
totis assartis capit totum seruicium. . . .
Et predictus Alexander Hugo et alii veniunt et defendunt vim
at injuriam etc. ... at bane cognoscunt, quod antecessores eorum
tenuerunt tenementa sua in dicto hameletto da progenitoribus
domini Regis per seruicium 30 denariorum pro virgata terra
. . . et bene cognoscunt quod ipsi reddunt predicto Roberto da
Canle redditus suos, sad qualiter ipsa uel antecessores sui
huiusmodi seruicia perquisierint, ignorant. . . . Jurati ... per
sacramentum suum dicunt, quod tempore Henrici Regis avi

428 3^Tpiptnbi)c.
domini Regis nunc tenuerunt omnes. . . . faciendo inde domino
Regi seruicia et consuetudines ad tenementa sua pertinentes.
Quo tempora quidam Ketelburnus antecessor Roberti predicti et
vicinus ipsorum tanencium qui tenuit de Rege sicut alii vicini sui,
et quia predicti tenentes domini Regis fuerant exiles in bonis et
predictus Ketelburnus fuit maior at discrecior eis, locuti fuerunt
cum ipso quod ipse coUigeret redditum eorum et iUum deferral
pro eis ad curiam regis, tanquam per manum ipsorum. Et post
mortem ipsius Ketalburni quidam heres ipsius Ketelburni accreuit
et duxit in uxorem quandam sororem cuiusdam constabularii da
castro da Kenilworth. Qui quidam heres ex permissione dicti
constabularii atraxit ad sa omnia servicia vicinoram suorarri et
reddidit antecessoribus domini Regis pro qualibet virgata dicte
villa 30 denarios et fecit sectam pro eis ad curiam domini Regis. Et
cepit pro sacta predicta certum redditum at pro assartis predictis at
ipsum redditum penes sa retinuit . . . [folio 23] Dicunt eciam quod
idem Robertus de Canle coram iusticiariis domini Regis ultimo
itinerantibus in comitatu isto tulit breve de natiuitate versus
predictum Alexandrum Hugonem et alios et petiit eos, ut natiuos suos,
et tunc ibidem declaratum fuit quod liberi fuerunt et ipse Ricardus
remansit in misericordia, Unde dicunt, quod ipsi sunt adeo liberi
penes se, sicut predictus Robertus penes se et tenere debent tenementa sua
de domino Rege in capite. . . . Et ideo consideratum est, quod
dominus Rex recuperet seysinam suam . . . et predictus Alexander
Hugo et alii sint intendentes domino Regi et baUiuis suis uel illis quibus
dominus Rex eos dare voluerit . . . Item coram eisdem justiciariis
inquisicio facta fuit per preceptum domini Regis quod . . .
tempore quo rax Henricus avus domini regis Henrici fiUi regis
Johannis contulit abbati manerium de Stonle cum soka . . . fuit
idem Rax in seysina de toto manerio integro de Stonle . . . et
idem Abbas simiUter in seysina . . . quousque Petrus de Canle
qui fuit collector redditus de Canle ad instanciam vicinorum
suorum ad redditus iUos deferendum domino Ragi at -pro ais
soluandum, subtraxit a se per diuturnam coUeccionem suam et per
ramissionem at negligenciam dominorum sine impedimanto et
calumpnia sectas, relevia, escaetas octo tenendum qui tenebant
octo virgatas terre de domino Rege et postea de Abbate de Stonle
[folio 23d] Anno regni Regis Henrici . . . quinquagesimo primo
. . . Dominus Rex habuit seysinam dicti hameletti per duas eb-
domadas et deinde dominus Rex per vicecomitem suum posuit prefatum

zu ^tondtxc^^ (^t^x0t^t, 429
Abbatem in plenam seysinam dicti hameletti de Stonle die Sti Clamantis
eodem anno ad magnam crucem villa de Stonle.

See p. 117, n. i.
Tha Stoneleigh Register has the foUowing entry on f. 12 :
Memorandum quod tempore fundacionis fuerunt in manerio da
Stonle Ix et xiij wz7/a«z' quatuor bordarii cum duobus presbyteris
tenentes xxx carucatas terre prout continetur in libro da
Domesday, fuerunt eciam tunc quatuor natiui siue serui in le lone
{sic) quorum quilibet unum mesuagium et unum quartronem
terre tenebat par servicia subscripta, videUcet leuando furcas . . .
et debebant . . . redimere sanguinem suum et dare auxilium domino
ad festum Sti Michaelis sciUcet Ayde, at facere braseum at alia
servicia seruilia, quorum nomina fuerunt Henricus Croud, cuius
heres lohannes Shukeburghe ; secundus vocabatur Robertus Bedul,
cuius heredes axtincti sunt in prima pestilencia. Tercius fuit
Galfridus Dore cuius eciam heredes extincti sunt in eadem
pestilencia. Quartus fuit Robertus Stot qui eciam mortuus est
sine herede. Fuerunt eciam quatuor liberi tenentes in vUla de Stonle
qui tenuerunt hereditarie quinque mesuagia at quinque virgatas
terre cum pertinenciis de Rege in capita per seruicia sokemanria,
videlicet Paganus de Stonle qui tenuit duas virgatas terre, qui
Paganus abavus fuit lohannis da Stonle, patris Roberti la Eyr.
Qui lohannes de Stonla dedit unum quartronem terre luliane filie
sue et Roberto Carteri marito dicte luliana, cuius haras est lohannes
lulian. Dadit eciam prefatus lohannes da Stonle cum aUa filia sua
Alicia nomina unum mesuagium et unum quartronem terre Roberto
filio Reginaldi Baugy, marito ipsius Alicia at ipsorum heredibus.
Qui Robertus at AUcia dederunt dictum tenementum WiUelmo
filio Roberti Stalewortha da Flechamstede et heredibus suis prout
inferius pleniter continetur. Quorum heres est Unealiter WiUelmus
Stalewortha qui modo ea tenet. Predictus varo Robertus la Eyr
dedit omnia residua tenementi sui cum redditibus et seruiciis
loanni Sparry et lohanni Hockele approwatoribus Abbatis de
Stonla. Et ipsi approwatores da licencia Domini Regis per breue
ad quod dampnum predicta tenementa Roberti le Hayr dederunt
Roberto da Hockele Abbati de Stonle et successoribus suis in
perpetuum anno regni Regis Edwardi tercii post conquestum
vicesimo . . .

43P Mjpp^nbxjc.
Fuerunt eciam duo liberi tenentes in parva Sokemanria, qui
tenuerunt hereditaria duo mesuagia et medietatem unius virgate
terre cum pratio et pertinenciis de Rege in capite. Quorum heredes
ea dederunt in feudo da licencia domini Abbatis Alexandre
Lynburgh, Henrico Rachel, Ricardo Sheperde et Simoni Malyn.
Et ipsi ea dederunt lohanni Hockele approwatori Thome Pype
Abbatis de Stonle. Qui abbas ipsa tenementa una cum aliis
tenementis amortizauit per braua ad quod dampnum, prout in carta
regia inferius contenta plenius apparet. Item fuerunt tenentes
cottarii in predicta viUa da Stonla tempore fundacionis Abbatii xxiv
tenentes xxiv cotagia in villa de Stonle pro certis redditibus.
In tha description just quoted the greater bulk of the tenants
is described as villains according to tha terminology of Domesday
and only a few (six in aU) are said to be free socmen and little
socmen. But a remarkable passage on the constitution of the
Court and tha rights and duties of its suitors describes these very
viUains as socmen.
F. 73. Curia de Stonle ad quam Sokemanni faciebant sectam
solebat ab antiquo teneri super montem iuxta uUlam da Stonle
vocatam MotstowehuU. Ideo sic dicta quia ibi placitabant. Sed
postquam Abbates de Stonla habuerunt dictam Curiam at liber-r
tatem pro aysiamento tenendum et sectatorum fecerunt domum
Curie in medio ViUe de Stonle. Ad quam curiam vaniunt et
sectam faciunt omnes sokemanni manerii da Stonla da tribus
septimanis in tres. Et quUibet eorum tenens unam virgatam terre
solvet domino annuatim 30 denarios, scilicet unum denarium per
acram quia quelibet virgata continet 30 acras et non plus. Et
in quolibet hameletto manerii sunt 8 virgate terre. Et si quod
amplius habent, hoc utique habent de approvacione et assartacione
vastorum. Item quodlibet hamelletum dabit domino sextam
porcionem ad communem finem bis per annum ad curiam visus
franciplegii. Ad quem finem prefati socemanni sectatores curiae
nihil solvent sad infariores tenentes, nisi in casu quod deficiant
tenentes inferiores. Item prefati sokemanni in obitibus suis
dabunt herietum integrum, scUicat unum equum et hernasium ef
arma si habuerint. Sin autem melius averium integrum quod
habuarint. Et quilibet haras patri succedens debet admitti ad
hereditatem suam anno etatis sue quintodacimo at solvet domino
raleuium, sciUcat dupplicabit redditum suum. Et dabit indicia
cum aliis paribus suis sokemannis. Et erit prepositus coUigendo

zu §touUi^^ (g^5{0^etr. 431
redditum domini quando eligetur per paras suos. Et debet re
spondere brevibus et omnia aUa facere ac si plena esset etatis
per legem communam. Item Sokemanni habebunt in forinsacsis
boscis manerii par visum forestariorum astoverium, scilicet. . . .
Et omnes tenentes Sokemannorum simul cum tenentibus domini
venient cum fauciUis ad bederipam domini ad metendum blada
domini. Et ipsi etiam Sokemanni venient ad ipsam bederipam
equitantes cum virgis suis ad videndum quod bene operantur,
et ad praesentandum et ad amerciandum deficientes et male
operantes. Et si non vanerint ad dictam bederipam in forma
predicta, debent graviter amerciari.
In the Warwickshire roll (Quean's Remembrancer's Miscel
laneous Books, N. 29) villains are mentioned, but only exceptionally
and in very small number. It looks as if they represented that
class of the tenantry which in the Register is described as servi
vel nativi. It would ba out of tha question to print here the
detailed account of the distribution and character of the holdings
given in the Hundred Roll — this must be left to the future editor
of that document. But I may say here, that the holdings are
much scattered, and that it would ba difficult to trace the original
plan mentioned in tha Register. StiU the division into principal
tenants, mesne tenants, and cottars is clearly discernible, and the
principal tenants are called free in the manor itself as well as in
the hamlets. In two cases they ara also spoken of as socman.

VII.
See p. 101, n. 5.
. [County Placita, Norfolk, No. 5, 21 Ed. III.]
Edwardus Dei gracia Rex Anglie et Francie et Dominus
Hibernie Thesaurariis at Camerarns suis salutem. Volantes
certis da causis cerciorari super tanore recordi et processus lo-
quala que fuit inter WiUelmum de Narwegata et quosdam alios
homines Rogeri Bygod nuper Comitis Norfolk de Manerio de
Haluargate quod est da antiquo dominico corona Anglia ut dicitur,
et ipsum comitem coram Domino E. nuper Rage Anglie auo
nostro anno regni sui vicesimo primo per brave ejusdem aui

432 ^pptnbix*
nostri de eo quod idem Comas ostanderet quara a praefatis homi
nibus exigebat alias consuetudines at alia seruicia quam facere
deberent et ipsi et antecessores sui tenentes de eodem Manerio
facere consueverunt temporibus quibus Manerium iUud fuit in
manibus progenitorum nostrorum quondam Regum Anglie, vobis
mandamus quod scrutatis rotuUs praefati aui nostri de tempore
praedicto qui sunt in thasauraria nostra sub custodia vestra (ut
dicitur) tenorem recordi et processus praedictorum nobis in Can-
caUaria nostra sub sigillo scaccarii nostri sine dilaciona mittatis
at hoc brave. Testa LeoneUo filio nostro carissimo Custode
Anglia apud Redyng vi dia Julii anno regni nostri Anglia vice
simo primo regni varo nostri Francie octavo.
Placita coram Domino Rege de termino Sancti Michaelis. Anno
regni Regis Edwardi filii Regis Henrici xxj finiente incipienta
xxijo. Rogarus Bygod Comas Norfolk et MarascaUus Anglia attachi
atus fuit ad respondendum WiUelmo de Narwegata, Henrico fiUo
Simonis de Culyng, Thoma filio Henrici da Haluargate, Ricardo
atte Howe, Roberto Sewyna et Ricardo fiUo Henrici Margarie
hominibus praedicti Rogeri le Bygod da Manerio de Haluargate
quod est de antiquo dominico corona Anglie de placito quare
exigit a praefatis WiUelmo de Narwegate et aliis alias consuetudines
at alia seruicia quam facere debent et antecessores sui tenentes da
eodem Manerio facere consueverunt temporibus quibus Manerium
Ulud fuit in manibus praedecessorum Regis Regum Anglia. Et
unde queruntur cum antecessores sui tenentes de eodem Manerio
tempore Domini Willelmi Regis Conquestoris quando praedictum
Manerium fuit in manum suam tenuerant tenementa sua per
certa seruicia videlicet pro qualibet acra terre quam in eodem
Manerio tenuerunt duos denarios per annum et qui plus tenuerunt
plus dederunt et sectam ad Curiam Regis in eodem Manerio de
tribus septimanis in tres septimanas et quando aliquis eorum in
Curia praedicta pro aliqua transgrassione essat amarciandus par
sax denarios tantum amerciatus esse debet, at similiter par dup-
plicacionem firme sue minoris val majoris post mortem anteces
sorum suorum at solent talliari quando Dominus Rex talliare fecit
dominia sua AngUe pro omni seruicio et par praedicta certa
seruicia terras et tenementa sua tenuerunt a tempore Regis
Willelmi praedicti usque ad tempus Domini Henrici Re^s

Mmknt ®eMte0ne. 433
patris Domini Regis nunc, quod Rogerus Bygod antecessor
praedicti Rogeri qui nunc est ab eis et antecessoribus suis aUas
consuetudines at alia seruicia exigebat et ad ea facienda distrinxit
videUcat pro qualibet acra quam in praedicto Manerio tenuerunt
quatuor denarios par annum et tallagium alto et basso cariagium
aueragium at merchettum pro filiis et filiabus suis maritandis at
de eisdem propositum faciendum iniuste et pro voluntate sua
distrinxit. Et praedictus Rogerus Bygod qui nunc est illam
iniuriam continuando a praefatis Willelmo et aliis praedicta
seraicia viUana et incerta exigit at aos ad aa facienda distringit
at inde producunt sectam etc.
Et praedictus Rogarus Bigod venit et defendit vim et iniuriam
quando etc. Dicit quod praedicti WUlelmi et alii non debent
ad breve suum respondere. Dicit enim quod ipsi in bravi suo
dicunt se esse homines ipsius Rogeri de Manerio praedicto at
tenentes da eodem Manerio qui quidem Willelmus et alii non sunt
homines ipsius Rogeri de Manerio praedicto nac fuerunt die
inpetracionis bravis sui videlicet xij die Maij Anno regni Regis
nunc xxjo nee eciam aliqua tenementa tenent in praedicto Manerio
nee tenuerunt die praedicto nac antea per magnum tempus unde
petit indicium etc.
Et praedictus WiUelmus de Narwegata dicit quod ipse est homo
praedicti Comitis de Manerio praedicto et tenet in eodem Manerio
unum Messuagium unum croftum et dimidiam acram Marisci et
tenuit dia impetracionis bravis praedicti. Et Thomas fiUus Henrici
dicit quod ipsa est homo praedicti Comitis et tenet in praedicto
Manerio unum messuagium et octo acras marisci et tenuit die
praedicto etc. Et de hoc ponunt sa super patriam. Et praedictus
Comes similiter. Ideo vaniant inde Jurati coram Rage a dia
Sancti HUlaru in xv dies ubicumque etc. Quia tam etc. Et
praedicti Henricus Ricardus atte Howe Robertus at Ricardus
filius Henrici dicunt quod reuera ipsi iam viginti annis elapsis
inpetrauarunt quoddam brave consimile etc. tempore quo ipsi
fuerunt homines ipsius Comitis et tenentes de Manerio praedicto
coram Domino Rega versus praedictum Comitem et ab Ulo
tempore usque nunc illud placitum sine interrupcione sunt
prosecuti ita quod si aliquod breve amiserant medio tempore
statim brava consimUe resussitauerunt. Unde dicunt quod si
praedictus Comas pendente praedicto placito at diligenter prose-
cuta quod eis pro uno placito et pro uno et aodam brevi debeat
VOL. I. F f

434 Mpp^nbxjc^
reputari ipsos a tenementis suis in eodem Manerio eiecit homines
ipsos nunc ab agendo repellere non debet. Et quod ita sit etc.
offerant verificare etc. tam par placita que secuntur Dominum
Regem quam per placita de Banco etc. et eciam per placita
ultimi itineris Salomonis da Roffa in comitatu Norffolk etc. Et
praedictus Rogerus Comes etc. dicit quod praedicti Henricus
Ricardus, Robertus et Ricardus non continuauarunt placitum
suum praedictum sine interruptiona in forma praedicta etc. et hoc
offert etc. Ideo mandatum est Thesaurarus et Camerariis ate.
quod scrutatis brevibus et rotuUs da placitis que sequuntur Domi
num Regem a die praedicto usque ad festum Sancti Michaelis
anno regni Regis nunc xij" et eciam brevibus et rotulis de itinere
praedicti Salomonis Et similiter mandatum est Elye de Bekyngham
quod scrutatis rotuUs et brevibus de tempore Thome de Way-
laund etc. qua sunt sub custodia sua etc. Et quid inde etc
scire faciant Domino Regi a die Pasche in xv dies ubicumque
etc. Idem dies datus est partibus etc. Ad quem diem vanit
praedictus Comas at praedicti Henricus filius Simonis, Ricardus
atte Howe, Robertus Sawyna at Ricardus filius Henrici non sunt
prosecuti Ideo ipsi at plegii sui de prosequendo in misericordia
videlicet Adam atte Gates, Henricus de Blafald et Eustachius Hose
de eadem. Et praedictus Comes inde sine dia etc. Postea in
octabis Sancti Hillarii Anno regni regis nunc vicesimo quarto
venerunt praedicti Willelmus de Narugate et Thomas filius Hen
rici et praedictus Rogarus Bygod venit et similiter Jurati venerunt
qui dicunt super sacramentum suum quod praedicti Willelmus et
Thomas praedictis die at anno non fuerunt homines praedicti
Comitis nequa tenentes de praedicto Manerio. Ideo consideratum
est quod praedicti WUlelmus et Thomas nichil capiant par breve
suum set sint in misericordia pro falso clamio. Et praedictus
Rogerus Comes inde sine die etc.
[In dorso :]
Memorandum quod tenor recordi et processus infrascripti ex-
empUficatus fuit sub magno sigiUo Domini Regis sub hac forma
videUcet. Edwardus Dei gracia Rex Anglie at Francie et Domi
nus Hibernie Omnibus ad quos etc. salutem Inspeximus tenorem
recordi et processus cuiusdam placiti qnod fuit coram Domino
E. quondam Rage Anglie auo nostro anno regni sui vicesimo
primo inter WUlelmum de Norwegata at quosdam alios et
Rogerum Bygod nuper Comitem Norfolk quam coram nobis

3S,ncknt ®me0ne. 435
in Cancellaria nostra venire facimus in hac verba Placita coram
Domino Rege etc. racitando totum tenorem praedictum usque
in finem et tunc sic Nos autem tenorem recordi et processus
praedictorum tenore praasencium duximus exemplificandum In
cuius etc. Taste Laonallo filio nostro carissimo Custode Anglie
apud Redyng xx die Julii anno regni nostri Anglie vicesimo
primo regni varo nostri Francie octauo que quidem brevia non
irrotulantur aUter quam hie inseritur.

VIII.
See p. 104, n. i.
[Exch. Memoranda Q. R. 20 Edw. I, Trin, m. 21 d.]
Baronibus pro hominibus de manerio da Costeseye.
Rex mittit Baronibus peticionem hominum maneru de Costeseye
presentibus inclusam mandantas, quod audita intellecta et diU-
genter examinata peticiona predicta de diversis gravaminibus et
iniurus per preceptum baronum et per Ricardum Athelwald de
Crek baUivum eiusdem manerii eisdem hominibus multipliciter
illatis, predictis hominibus iusticie complementum inde exhiberi
faciatis prout de iure et secundum legem et consuetudinem regni
Anglie fuerit faciendum Ne oporteat ipsos homines ad Regem
iterato habere recursum ex causa praedicta. Taste Rege apud
Enleford VII die Mail XXo.
Peticio hominum de manerio de Costeseye. A nostre Seignur la
Rey e a sun conseil se playnent las pours genz le Rey de la basse
tenure de le maner de Costeseye ce est a sauer de la foreyn sokne
com de Colton, Eston, Hiningham, Thodeham, Rongelsunde,
Weston, Tauarham, Berford, Wramplingham at Dunholt ke
Richard de Crek bailif la Rey del maner avantdit a tort lur
greva a distreynt a lur mat hors da lur usages an dreyt de lur
tenaunce uses del tens memora na curt. Ca est a sauer par la
ou memes cele ganz sa en arare en les tens les cuntes de Bretayne,
e en la tans le Ray Johan a la Rey Henri ke daus asoUe a
en la tens nostre Seignur le Rey Edward ke deu gard a de
tuz iceus a queus la maner avaunt dit a esta done ou lesse a la
volunte da Rays avaunt nomas pur ka la Cunte da Bretayne a
le riscunte da Dohay masnes le maner forfirant, unt vendu, done
F f a

436 3S,}pptnbxX'
e lesse lur terras champastres per aper (?) saunz conge demaunder
an curt, forpris lur mas e lur croftas, la vient mesme celuy
Richard baiUf auant noma e lur terres saunz conge venduz per
aper (?) ad seysi a greuuesement les ad amercie pur les tenemenz
issi uendus solonc les usages de lur tenaunce. Estre ce memes
celuy Richard a tort greve a distreint las genz auaunt nomes
pur office da prouosterie a da coylura (collector) na Us na
deyuent estre ne solayent, mes les vUes de Costeseye et de Banburg
saruant et deyuent servir da tal office pur lur tenaunce charge
da tel seruise. E priunt la grece lur seignur le Rey ke il voyle
fere enquere par pais si le plest coment ils deyuent tenir e ka la
duresse fete a eus par le bailif auant dit seit redressa. Estre ca
les poura genz auant nomes sunt mut enpourariz pur un taylage
voluntraf ka la bailif Alianor Reyne da Englatera la mera nostre
seignur le Rey ke deus asoile nut pris a tort de an an an ca
est a sauer xx markas de hom apele communage ka auaunt
sun tans ne fut donc mas a la premere venue da nouel signur
una conisaunce da Cs. cum fu dona a nostra seignur le Rey
Edward kant la maner U fu done forpris les viles da Costeseye
e de Banburg ke sunt taylables haut a bas a la volunte le Ray
cum costemers del maners. Pur ce est ke las paure ganz auaunt
noma priunt la grace nostre seignur le Rey si le plest pur la
regard da pita ka il empreynt pita de eus e lur face suffrir
lur usages del tans dune mamore ne curt e grace del tortauus
taylage pur le quel il sunt mut ampoairiz.
IX.
See p. 108, n. i.
[Augmentation Court Rolls, XIV. 38.]
(Havering atte Bower, Essex.)
Curia ibidem tenta dia louis proxima ante festum S. lohannis
ante portam latinam anno r. r. Ricardi Secundi post Conquestum
vicesimo. Ricardus Rex BaUivis Thoma Archiepiscopi Ebor et
Edwardi comitis da Hauaring atte Boure. Precipio vobis quod sine
dilatione et secundum consuetudinem maneru de Hauaring atte
Boure plenum rectum teneatis Roberto Marston de London at
Ricardo Quylter de Hauaring ate.
Hec est finalis concordia facta in curia Thome archiepiscopi

.Sncten^ ®ent^0n^. 437
Cantuar at Edwardi Comitis Rotaland apud Hauaring atte Boure —
coram Ricardo Wytl . . . tunc senescallo et Ricardo Wylde tunc
baUivo et aliis domini Regis fidelibus tunc ibi presentibus inter
etc. Curia Thome Archiepiscopi Cantuarensis at Edwardi Comitis
Rotaland tenta ibidem dia louis proxima ante festum S. Bartholo
maei apostoli anno r. r. Ricardi Secundi post conquestum vicesimo
primo. Inquisicio ex officio coram Ricardo Wythmerssh senescallo de
Haueryng atte Boure per sacramentum Walteri Herstman 
juratorum qui dicunt supra sacramentum suum quod Alicia Dyara
que de domino Rega tenuit duas acras terre in marisco obiit seisita.
Et quod Thomas de Donne filius predicte Alicia est eius heres
propinquior et plena etatis, ideo preceptum seisire dictam terram in
manus domini et respondere de exitu quali etc. Item dicunt quod
idem Thomas ingressus est feodum domini videlicet unum
mesuagium cum pertinentiis in Romford quod habuit ex dono et feo-
famento lohannis Cole ideo preceptum ipsum distringere pro
fideUtate et relevio etc. Item predicta Inquisitio onerata super
sacramentum suum si aliquis homo nativus de sanguine ingressus
fuerit feodum domini nac ne et quantum feodum iUud valeat per
annum dicit quod non est aliquis homo nativus de sanguine
ingressus feodum domini. Set dicunt quod est quidam lohannes
Shillyng qui sepius dictus fuerat fore nativus. Et dicunt ultra quod
quidam lohannes Shillyng patar predicti lohannis fuit alienigena
et quod predictus lohannes Shillyng quo ad eorum cognitionem est
Iiber et Ubere conditionis et non nativus. Item prefata inquisitio
dicit quod Robertus Clement da London Sadelere ingressus est
feodum domini videlicet unum mesuagium cum pertinenciis in
Romford quod habuit ax dono et concessione lohannis Cole
TaUlor ideo preceptum ipsum distringere pro fideUtate at relevio
etc. Item dicunt quod quidam homo veniens in comitiva domini
Regis dimisit quemdam equum in hospicio lohannis atte Heth et
capit ibidem unum alium equum etc. at dimisit predictum equum
ibidem stare per unum mensem absque aliquid clamando de
predicto equo ideo preceptum dictum equum seisire ad opus domini
Regis et inde Regi respondere.
Curia ibidem tanta dia louis proxima post festum S. Martini
anno r. r. Ricardi secundi post conquestum vicesimo primo.

438 3R,pptnbix*
Compertum est par inquisicionem ex officio captam par sacra
mentum Thome Olyuera , . . Qui dicunt super sacramentum
suum quod quidam lohannes Pacok quondam tenuit unam paciam
terre in marisco vocatam Wattiscroft pro qua quidam terra raparabat
et raparare tenebatur quoddam murum in marisco erga Tamisiam
in dafensum aque inundantis. Et idem lohannes Pacok de terra
predicta obiit seisitus. Et quod quidam lohannes filius predicti
lohannis Pecok est eius hares propinquus. Et dicunt quod predictus
murus est wastatus pro defectu reparacionis ita quod aqua Tamisia
inundans superfluit murum predictum et demargit mariscum
predictum ad grave dampnum domini Regis et tenencium suoram.
Et predictus lohannes filius lohannis Pecok in propria persona
sua dicit quod non supponitur per presentacionem predictam quod
terra predicta vocata Wattiscroft prefato lohanni fiUo predicti
lohannis Pecok descendebat post mortem lohannis Pacok patris
sui nac quod predictus lohannes filius lohannis Pecok aliquo
tempore fuit tenens terra predicte vocate Wattiscroft. Et si videtur
Curia quod protestacio est sufficiens, etc. dicit per protastacionem
quod ipse non fuit heres predicti lohannis Pecok patris sui tempora
mortis sue, etc. Et ulterius protestando dicit quod predicta terra
vocata Wattiscroft tenetur ad communem legem. Et ulterius dicit
pro placito quod ipse numquam habuit poscassionam manualem
de terra predicta set dicit quod quidam lohannes Harwere post
decessum predicti lohannis patris sui et longo tempore ante
inquisicionem predictam captam intravit in terram predictam
ad usum cujusdam lohannis Sebnan . . . Et dictum est pro domino
Rege quod predictus lohannes filius predicti lohannis Pecok fuit
tenens terre predicte die quo inquisicio predicta capta fuit. Et
petitum est per dominum Ragam quod inquiratur par patriam. Et
pro predicto lohanna filio, etc. simUiter. [Jurati] dicunt super sacra
mentum suum quod predictus lohannes Pecok vivante predicto
lohanne patre suo occupavit predictam terram vocatam Wattis
croft per voluntatem patris sui at capit inde exitus et proficua.
Et postea predictus lohannes Pecok patar, etc. obiit post cujus
mortem predictus lohannes filius, ate. intrauit ut filius et heres et
terram predictam ocupavit et inde capit exitus proficua, ata Et
dicunt quod est eorum consuetudo quod nuUus homo adquirarat
sibi aliquam terram in marisco qua oneratur ax reparacione aUcuius
muri in marisco erga Tamisiam nisi haberet sufficiantam
tenuram in eodem dominio extra mariscum que poterit portare

(Eoff0 of ^Av^xxnc^, 439
omnes reparaciones iUius muri in marisco quum necesse fuerit. Et
dicunt esciam quod lohannes Selman non fuit tenens terre predicte
vocata Wattiscroft dia quo officium predictum captum fuit set quod
predictus lohannes filius, etc. terram predictam occupavit usque
in diem quo predictum officium captum fuit. Et dicunt quod est
ad dampnum domini Regis quod murus predictus non fuit reparatus
predicto die, etc. da triginta et octo solidis uno obolo.
Curia ibidem tenta dia louis in festo S. lohannis Apostoli at
Evangeliste anno r. r. Ricardi post Conquestum vicesimo primo.
Dominus Rex mandauit breue suum clausum BaUivis Edwardi
Ducis Albemarle de Haueryng atte Boure . . . Precepimns vobis
quod sine dilaciona at secundum consuetudinem manerii da
Haueryng atte Boure plenum rectum teneatis Ricardo filio lohannis
Legati da uno mesuagio viginti et octo acris terra at una acra prati
cum pertinencus, etc. . . . Et predictus Ricardus invenit plegios
ad prosequendum breue predictum . . . Et fecit protastacionem ad
sequendum breue predictum in natura breuis da convancione. Virtute
cuius brevis preceptum BaUivo quod summonara faciat per bonos
summonitores secundum consuetudinem manerii de Haueryng
atte Boure, ate. . . .
Curia tenta ibidem dia louis proxima . . . vicesimo tercio.
Dominus Rex mandauit breue suum clausum Ballivis suis de
Haueryng atte Boure.
Curia ibidem tenta die louis proxima ante festum S. Laurencii
martiris anno r. r. Ricardi secundi post conquestum vicesimo
tercio. . . .
Ricardus Dei gratia Rex Anglie . . . Ballivis suis de Haueryng,
etc. Hec est finaUs concordia facta in curia domini Regis da Haueryng
atte Boure die louis . . . coram Ricardo Withmerssh tunc sene-
scaUo at lohanne Bokanham tunc BaUiuo at aliis domini Regi
fidelibus tunc presentibus inter W., etc.

44°

MpT(>^nbi)e,

X.
See p. 143, n. 3.
Exchequer Q. R. Ancient Miscellanea.
9^ (No date, about 1300.)
11

Inquisitio :

WiU's Frere
Rob's Diaconus
Rob's Snellyng
Joh'es Longus

Walt's Michel
Elias de Leyes
Elias Pany
Godefrid' "Newman

Qui dicunt subscripta per sacramentum suum.

Joh'es Broket ..
Thomas Coker |
Will's Hardyng I-
WiU's Walysce
Joh'es Ordmar ¦'

Nativus— , Nich's ate Neuthon'

i

f Estrelda ) „- „» nnud
/ Maur' ate Neuthon' j |MachySge
( Jo?i'es Rotlonde 1
Joh'es Rotlonde . .-^ Walt's Rotlonde \
V Thomas Rotlonde / man' London'.
, Joh'es Pany
f Will's Pany
Will's Pany ... J KJc's Pany
I Elias Pany — modo tenens
^ Agues Pany
Simon ate Neuthon' nullus ab eo.
f Ric's le Couper
Thomas le Couper . ^l^c^^lf
[ Isabella la Couper
. Walt's ate Neuthon' —modo

Pater extraneus ;
ignotus adhucK
propter diumi- i
tatem temporis

Joh'es Bate . * . Walt's ate
tenens
\Cristina  Will
W3Tiiarks . --"-

Joh'es Woderove
Will's Vaccarius

Nativus — Rog's ate Neuthon'

Galfr's Woderove
nullus ab eo
* Will's Pistor . , . -
Cristin a ateNeuthon'
Agnes ate Neuthon'

nullus ab eo
j- Will's Woderove
t n.

Nativus — /Alanus ate Hache . nullus ab eo

Nativus —
Editha la Daye

Nativus —

Rog's ate Hache

Orgor* ate Hache

\ Walts' ate Hache

r Adam ate Hache ."

^ Matild' ate Hache
nullus ab eo

Ranulfus ate Broke

Matheus ate Broke

' Matild' ate Broke

Steph's Pistor
Will's Pistor
Rog's Pistor
Jolres Pistor
Cristina Pistor
Isabella nullus ab eo (sic)
Joh'es Broket
Johe's Broket Junior
Matild' Broket
Isabella Broket
^AgTies Broket
, Ric's ate Hache Junior
Nich's ate Hache
Roff's ate Hache
Will's ate Hache
Will's ate Hache
Will's ate Hache
Joh'es ate Hache
Alie' ate Hache
Matild' ate Hache
^Emmot' ate Hache
Marger' ate Hache
nullus ab eo
/Will's ate Broke
Walt's ate Broke
Walt's ate Broke
Ric's ate Broke — London'
Cristin' ate Broke
Matild* ate Broke
V Agnes ate Broke
Walterus Mathy
Will's Mathy
Agnes Mathy
Emmot' Mathy
nullus ab ea.

zu ^\xnbubov0, 441
XL
See p. 188, n. 2.
The best way to form an opinion as to the position of the
hundredors among other classes will be, I think, to start from a
closer examination of tha Ely Surveys, which give tha term several
times. They are peculiar in this respect, and only in this. A
comparison with other Cartularies will show at once, that the
same thing is to ba found elsewhere over and over again.
Both Ely Surveys — that of 1222 (Tiberius, B. ii) and that of
1277 (Claudius, C. xi) — ara remarkably alike, and may serve as
an illustration of the continuity of the fundamental organisation of
a feudal village. I shall take tha later Cartulary because it is a
trifle fuller, and coincides in time with the Hundred RoUs. It
would not be sufficient to give only the entries relating to tha
hundredors, because the reader would not be able to judge of their
position in relation to other classes. I may be allowed in conse
quence to present rather large extracts.
In the manor of Wilburton belonging to the Ely Minster we find
tha following classification of tha tenantry' [f. 49 sqq.J
Ee hundredariis. Et libere tenentibus.
PhUippus de insula tenet 16 acras de mara et debet sectas ad
curiam Elyensem et ad curiam de Wilbartona, et in quolibet hun
dredo per totum annum. Et dat ad six^fiapany at wardpany, et
arabit cum caruca sua per duos dies in hyeme at habebit quo
Ubet die unum denarium. Et arabit in XL™* per 2 dies et habebit
quolibet dia unum denarium . . . Et inveniet omnas tenentes suos
ad magnam precariam autumpni ad cibum episcopi. Et dabit
pro fiUa sua.
Ricardus filius Rogeri tenet 12 acras de ware et debet sectas
. . . (tha same as PhiUp). Et dabit leirwita pro filia sua at ger
sumam cum ipsam maritare uoluerit, scilicet 30 et 2 den. Et talla
gium cum aliis. Et de herieto meliorem bestiam uel 30 et 2
denarios, si non habeat bestiam. Ouas sua non iacebunt in faldo
domini . . .
¦• It ought to be mentioned that the hundreds to which suit is due belonged
to the Church of Ely,

442 Mpiptnbxjc,
De operariis et plenis terris.
Samson filius Jordani tenet 12 acras terra da Wara qua faciunt
unam plenam terram . . . Et sciendum quod tota villata, tam
liberi quam alii, debent facere 40 perticatas super calcetum de
Alderhe sine cibo et opera.
In Lyndon tha division of the tenantry is somewhat mora com
plex [f 52 sqq.J. De militibus.
Philippus de insula tanet tres carucatas in Hinegeton per serui
cium unius mUitis. Et sciendum quod omnes tenentes sui ibidem
debent uenire ad precariam carucarum episcopi cum quanto iun-
gant par duos dies in hyama et par 2 dies in XL"* . . . Et
dominus Philippus da Insula debet sectam ad curiam Elyensem.
Et ad curiam de Lyndon, in aduentu senescaUi.
Nigellus de Cheuckar tanet 2 carucatas terre per seruicium
unius militis cum terra sua de Harefeud . . . Et Uberi tenentes sui
qui terunt per soccagium debent unam sectam ad frendlese hundred,
scUicet ad diem sabbati proximum post festum S** MichaeUs.
De hundredariis.
Robertus da Aula tanet 40 acras terra da wara per seruicium
sequendi curiam Elyensem. Et quodlibet hundredum et curiam de
Lyndon. . . . Et ueniet ad precarias cum caruca sua . . . Et
inueniet omnas tenentes suos ad magnam precariam episcopi in
autumpno ad cibum domini. Et ipsemet ibit ultra eos eo dia. Et
habebit cibum suum similiter cum baUiuis domini. Et ueniet
coram justiciariis ad custum suum pro'prium . . . Et sciendum quod
iste et quilibet hundredarius dabit gersumam pro filia sua maritanda,
scilicet 32 denarios. Et dominus episcopus habebit meliorem
bestiam da domo sua pro herietto siue 32 denarios, si bestiam non
habuerit et operabitur super calcetum de Alderhe sine cibo pro se
et tenentibus suis.
Galfridus la Sokeman tenet 1 2 acras at dimidiam de wara ....
De consuetudinariis qui vocantur Molmen. ¦
Patrik filius Henrici le frankeleyn tenet 10 acras terre in hylle
pro duobus solidis . . . Et ueniet ad precariam carucarum cum

zu ^UnbUbOV0, 443
caruca sua uel cum quanto iungit . . . Et debet sectas ad curiam
de Lyndon . . . Et dabit gersumam pro filia sua maritanda ad
voluntatem domini. Et in obitu suo dominus habebit meliorem
bestiam domus pro hereto uel triginta duos denarios, si bestiam
non habuerit. Et dabit tallagium. Et fiUus suus at hares dabit
releuium. De operariis qui tenent plenas terras.
Radulfus filius Osbern tenet unam plenam terram que continet
10 acras de wara.
The next survey is that of Dudington (f. 63 sqq.).
De libere tenentibus et hundredariis in Dudlingtone et
Wimblingtone.
(The typical hundredor is made to pay merchet, layrwita, and
heriet as above.) De consuetudinibus censuariorum in Dudingtone.
Radulfus filius WUlelmi tenet unum mesuagium quod continet
dimidiam acram pro 12 denariis . . . Et dabit gersumam pro
fiUa sua et leyrwite ad voluntatem domini, Et dupplicabit redditum
suum pro suo ralauio.
De consuetudinibus operariorum in Dudington.
(Thay hold ' fuU lands ' of 1 2 acres, and perform aU kinds of
agricultural work.)
If we turn now to the Survey of Wyvelingham (f. in sqq.), we
shall not find the heading ' hundredarii^ but it will not be difficult
to discern the tenants who correspond to tha hundredors of tha
former Surveys. De libere tenentibus.
Henricus Torel tanet dimidiam virgatam terra pro decem at octo
denariis equalitar. Et ueniet in autumpno ad magnam precariam
domini cum omnibus hominibus suis quot habuerit laborantes ad
cibum domini. Et dabit tallagium si dominus voluerit. Et
gersumam pro filia sua. Et debat sectam curie et molendini. Et
ibit cum alus extra uUlam ad districtiones faciendum.

444 3S,)ppinbiX'
WUlelmus Nuncius tenet dimidiam virgatam pro i8 denariis
equaUter, Et faciat omnia alia sicuti predictus Henricus Torel.
Thomas filius Oliue tenet unam virgatam terre pro 6 denariis
equ. ad festum S^i Andreae. Et arabit tres rodas terre per
annum. . , . Et herciabit cum equo suo ante Natale par unum
diem integrum sine cibo at par unum diem in quadragesima sine
cibo . . . Et falcabit cum uno homine per unum diem integrum
sine cibo. Et adiuuabit fenum lauandum at cariandum sine cibo.
Et sarclabit per unum diem integrum sine cibo. Et illud quod
massuerit cariabit sine cibo. Item portabit breuia domini episcopi
uel senescaUi usque ad Dudington uel ad locum consimilem. Et
dabit taUagium, herietum at leyrwite, et gersumam pro filia sua.
Et debet sectam Comitatus hundredi, et curie, et molendini. Ouas
sua iacebunt in faldo domini ut supra . . .
De operariis.
Thomas Wecheharm tenet dimidiam virgatam terra que con
tinet 15 acras terre.
In Shelford (f. 125 sqq. Cf Rot. Hundr. u. 544) there are only
two main headings : ' da militibus ' and ' de consuetudinariis at
censuariis ; ' but I think it is quite evident from the Survey that the
first ought to run ' da militibus et libera tenentibus,' or something
to the same effect, and that it includes the hundredors.
De militibus.
Johannes da Moyne miles tenet unum mesuagium et unam
rodam terre qua fuit coteria operabiUs in tempore Galfridi de
Burgo Elyensis episcopi pro duobus solidis equ. Idem Johannes
tenet unum mesuagium quod fuit Michaelis de la Greue pro 14
dan. equ. Et inueniet unum hominem ad quamlibet trium pre-
cariarum ad cibum domini. Et metet dimidiam acram da loua-
bene sine cibo. Et inueniet unum hominem ad fanum leuandum
et tassandum in curia domini episcopi. Et dabit taUagium cum
consuetudinariis pro tanta portione.
Johannes filius Nicholai CoUogne tenet dimidiam hydam terre
per seruicium sequendi comitatum et hundredum. Idem tenet quar
tam partem curie sua pro uno niso {sic) uel duobus soUdis . . .
In Stratham tha Molmen ara reckoned with the freeholders and
hundredors, (f 44).

zu ^\nnbv^bot0, 445

De libere tenentibus et censuariis.
Walterus de Ely miles tenet 50 acras de wara unde debet sectam
ad curiam de Ely. Et ad curiam de Stratham. Et in hundredum
de Wycheford . . . Et faciet omnas consuetudines sicut Johannes
fiUus Henrici subscriptus.
Johannes filius Henrici Folke tenet 10 acras de wara. Et debet
sectam hundredi per totum annum, scilicet ad quodlibet hundredum
et sectam ad curiam de Ely et de Stratham. . . . Et dabit gersumam
pro fiUa sua maritanda. De consuetudinibus operariorum, etc.
The entries quoted ara sufificient, it seems, to estabUsh the
following facts : —
I. The hundredors of tha Ely Minster ara people holding tene
ments burdened with tha obligation of rapresanting tha manor in the
hundred and in the county.
2. The tenure may ba quite distinct from the personal condition
of the holder. A knight may possess tha tenement of a hundredor
in one place and a military fee in another (Philip de Insula in
Wilburton and in Lyndon.)
3. A free tenant is not eo ipso a hundredor. Soma holdings
are singled out for the duty. (Henry Torel, WiUiam ' Nuncius,'
and Thomas filius Olive in Wyvelingham. Cf Lyndon.)
4. In many cases the hundredors are mentioned without being
expressly so called, and such cases present tha transition
between the Ely Surveys and other Cartularies which constantly
speak of privileged tenants holding by suit to tha hundred and
to the county. (Sea the quotations on p. 189, n. 2, and p. 191,
n. I.)
But thera is another side to tha pictura. In tha cases of which
we have been speaking tUl now the obligation to attend the hun
dred and tha county is treated as a service connected with tenure,
and has to meet the requirements of the State which enforces the
representation of the viUages at the Royal Courts. Such a system
of representation follows from tha conception of the County and of
the Hundred as political parts of the kingdom on the one hand, and
as composed of Manors and ViUages or ViUs, on the other. This
may be caUed the territorial system.. But another conception is

446 3RrTppinbxx»
lingering behind it — that namely of the County, as a folk, and of the
Hundred, as an assembly of the free and lawful population. The
great Hundred is derived from it, but even in the ordinary meet
ings all the freeholders are entitled, if not obliged, to join. The
Manor and tha Vill have nothing to do with this right, which is
not one of representation, but an individual one and extends to a
whole class. This may be caUed tha personal system of the
Hundred. It is embodied in the so-called ' Lages ' of Henry I.
And therefore we find constantly in the documents, that the suit to
tha hundred, to tha county, and also that to the sherifif's tourn and
to meat the justices, ara mentioned in connection with two dififerent
classes of people. On one hand stand the representatives of the
township, on tha other the free man, frae tenants or socmen bound
individually to attend the hundred and to perform other duties
which ara enforced on the same pattern. The Hundred Rolls
give any number of examples.
I. 55 : liberi homines de Witlisford at quatuor homines et pre
positus solebant venire ad turnum vicecomitis sat post bellum de
Evesham per Baldewynum de Avany subtracta fuit iUa sacta, set
nesciunt quo warranto.
I. 154: Idem abbas (deWauthan) subtraxit ad turnum vicecomi-
tum sectam 4 hominum at prepositi de manerio suo de Esthorn-
done et de liberis hominibus suis in eadem viUa at in villa de
Stanford. I. 180 : Omnas Uberi tenentes at quatuor homines at prepositus
da Morton Valance subtraxerunt sectam ad turnum vicecomitis bis
in anno ad idem hundredum.
In Shropshire we find the question put to the jurors of the
inquest (II. 69) : Si homines Ubere tenentes et 4 homines et pre
positus de singuUs viUis venerint ad summonicionem sicut precep
tum est.
II. 130: Dominus Ricardus Comes Gloverniae subtraxit 4
thathingas videlicet Stockgiffard, Estharpete Stuctone et Westone
de hundredo de Wintestoke et ipsas sibi appropriavit. Item dicunt
quod Thomas da Ban . . . et ceteri libere tenentes predictarum 4
thethingarum solebant sequi dictum hundredum et se subtraxerunt
a termino predicto.
II. 131 : Dicunt quod una decena de Borewyk et alia decena
Chylatona cum liberis hominibus subtrahuntur da hundredo domini
Regis de la Hane.

zu '^v^nbvibov0, 447
I. 17 : Manerium de CoUecote at 8 liberi Sokemanni tenentes in
dicto manerio solebant facere sectam ad hundredum de Kenote-
burie et subtracti sunt a tempora Alani da Fornham quondam vice
comitis usque nunc.
The last instances quoted do not speak directly of the four man
and tha reeve, but their meaning is quite clear and vary significant.
The suit of the tithing and of tha manor is contrasted with the
personal suit of tha free tenants. Wa find often entries as to the
attendance ofthe manor, the township, or the tithing.
I. 181 : Dicunt quod abbas da Thaokesberie pro terra sua in
Codrinton . • . Episcopus Wygorniensis pro manerio suo da Clyve
per quatuor homines et prepositum solebant facere sectam ad istum
hundredum ad turnum vicecomitis bis in anno usque ad provisiones
Oxonienses. I. 105 : VUlata de Monston par 2 annos at villata de Stratton
per 10 annos subtraxerunt sectam hundredi.
I. 78 : Dicunt quod idem Walterus (de Bathonia) removit vil
lanos de Sapwasse in forinsecum at feofavit liberos da eadem
terra in quo terra quidam tuthinmannus {corr. quadam tathinga ?)
jungi solebat et sequi ad hundredum forinsecum predictum et est
secta ejusdem tathinga subtracta de tempore Regis Henrici patris
Regis Edwardi anno ejus quarto.
It appears that the faoflfmant of free tenants was no equivalent
for tha destruction of the tithing. Tha entry is remarkable but not
very clear. (Cf I. 87, II. 133, and Maitland, Introduction to tha
Selden Soc. vol. II, pp. xxxi, xxxiii.) In any case tha main facts
ara not doubtful. Tha population of the kingdom was bound to
attend tha assemblies of the hundred and of tha county by repre
sentatives from the vUlages or tithings, which sometimes, though
not always, coincided with the manors.
There were many exceptions of different kinds, but the Crown was
striving to restrict thair number and to enforce general attendance
at least for the tourn and the ayre. Tha representation in these last
cases, though much wider and mora regular than at the ordinary
meetings of the hundred and of the shire, was constmeted on the
same principles, and tha difl'erence lay only in tha measure in which
the royal right was put into practice against the disruptive ten
dencies of feudalism.
The inquest in tha beginning of Edward I's reign gives us a
very good insight into the inroads from which the organisation had

448 ^pp^nbxx*
to suflfer, especially in troubled times ^ This attendance of the
township is mentioned in marked contrast with the suit of the
free tenants or socmen, which is also faUing into disuse on many
occasions, and also supposes a general theory, that the fraa people
ought to attend in person.
An important point in tha process which modified the represen- '
tation of the viUs in the hundred has to be noticed in tha fact, that
the suit from a single village was not considered as a unit which
did not admit of any partition. Whan the vUlaga itself was divided
among several landlords tha suit was apportioned according to thair
parts in the ownership instead of remaining, as it wara, outside tha
partition. Wa might well fancy that the township of Dudesford,
though divided between the Abbots of Buttlesdan and of Osaney,
would send its deputies as a whole, and would designate them in a
meeting of the whole. Wa find in reality, that the fee of one of the
owners has to sand three representatives, and the fee of the other
two (Rot. Hundr. I. 33 ; cf I. 52, 102). This gives rise to a
difiiculty in tha reading of our evidence. Tha Hundred Rolls
speak not only of suit due from the viUage, the tithing, or the
manor, but also of the suit from the tenement. In one sense this
may mean that the person holding a free tenement was bound to
attend certain meetings of tha commons of tha realm. In another
it was an equivalent to saying that a particular tenement was bound
to join in tha duty of sending representatives to such meetings. In
a third acceptation of the words they might signify, that a particular
tenement was charged to represent the village in regard to the suits,
and for this reason privileged in other respects. A few extracts
from the Hundred Rolls wiU illustrate tha difificulty.
I. 143 : Dicunt quod Johannes da Boneya tenuit quoddam tene
mentum in Stocke quod solet facere sectam ad comitatum et hun-
' Rot. Hundr. ii. 82 : ' 'Walterus de Pedecorthin est dominus (de Ing-
wethin), in qua est una virgata terre et facit sectam ad hundredum bis in
anno, set non ad parva hundreda nee ad comitatum, nesciunt quo warranto.'
ii. 201 : ' Decena de Larncynge solebat facere sectam ad dictum hundredum
de Bretford set de consensu 'W. de Breuse dicta decena divisa fuit in duas
partes. Ita quod una pars secta ad curiam domini de Brawatere et alia me
dietas ad dictum hundredum de Bretford ad dampnum domini dicti hundredi
5 solidorum per annum : ' ii. 195 : '8 homines de homagio Johannis le
Butiler in Stones et Boxham qui debent facere sectam ad predictum hundre
dum subtraxerunt sectam suam ad duo hundreda generalia per annum et
unus predictorum hominum retraxit sectam suam per totura annum debitam.'

zu ^Vinbubov0, 449
dredum, que secta postea subtracta fuit per Regem Alemannjae,
etc. Was John de Boneya a socman bound to attend personally, or a
hundredor, a hereditary representative of tha viUaga of Stocke ?
II. 208: Prior da Michulham subtraxit sectas et servicia 25
tenencium in manerio suo de Chyntynga qui solebant facere sectam
et servicium hundredo de Faxeberewe et sunt subtracti per 6 annos
ad dampnum dicti hundredi 5 sol. per annum.
Tha twenty-five tenants in question may be viUains joining to
send representatives in scot and in lot with tha vUlaga (cf I. 214,
216), or, fraa socmen personally bound to attend.
11.225: Prior de Kenilworth subtraxit, etc., de una virgata
terra in Lillington 1 5 annis elapsis et de 4 virgatis in Herturburie
18 annis elapsis , . . qui solent sequi ad hundredum de tribus sep
timanis in tres septimanas.
Here it would be difificult to decide whether the suit is appor
tioned between the tenements of tha viUaga on tha principle of their
contributing jointly to perform the services, or else bound up
with these particular virgates as representing the vUlage (cf.
I- 34)- I notice this difificulty because it is my object in this Appendix to
treat the evidence as it is given in the documents, and to help
those who may wish to study them at first hand. But as we are
immediately concerned with the position of the ' hundredor,' I
shall also point out that there ara cases where a doubt is hardly
possible. The tenant who is privileged on account of the duties
that ha performs in representing his village in the hundred court,
may be easily recognised in the foUowing examples.
II. 66 : Dicunt quod Rogerus Hunger de Preston solebat sequi
comitatum et hundredum pro villa de Preston in tempore Henrici
de Audithelega tunc vicecomitis Salop 20 annis elapsis, mortuo vero
predicto Roberto Hunger, Abbas da Lillashul qui intratus fuit
in predictam vUlam per donum Roberti de Budlers de Mungomery
extraxit {corr. subtraxit) predictam sectam zo^ annis elapsis
nesciunt quo warranto, unde dominus Rex dampnificatus est per
iUam subtraxionem, si idem Abbas warrantum inde non habet de
40 solidis.
I. 2 1 : Johannes de Grey subtraxit sa de secta curie pro viUata
de Chilton de uno anno at die {corr. at dimidio), unde dominus
Rex dampnificatus est in 18 denariis.
VOL. I. G g

450

3^pp^nbx)(*

Though the institution of the hundredors has found expression
in the Hundred Rolls, the name is all but absent from them. The
rare instances when it occurs are especially worthy of considera
tion. I have three times seen a contraction which probably stands-
for it, but in one case it applies distinctly to the hundred-reeve or
to a riding bailiflf of tha hundred.
I. 197 (Inquest of the hundred of Hirstingstan, Hunts): dicunt
etiam quod homines ejusdem soke rescusserunt aueria que El.
hundredarius caperat pro debito domini Regis levando et impa-
dierunt eum ad summoniciones faciendum de assisis et juratis at
equum ipsius El. duxarunt ad manerium da Somaresham at eum
ibi datinuarunt quousque deliberavit omnia averia par ipsuin
capta. Tha casa is different in regard to the description of Aston and
Cote, Oxfordshire. It is printed on p. 689 of the second volume
of the Hundred RoUs, but printed badly. Tha decisive headings
are not given accurately, and I shall put it before the reader in the
shape in which it stands in tha MS. at the Record Ofifice. The
passage is especiaUy interesting because of tha peculiar constitution
of tha manor of Bampton, to which Aston and Cote belong. (See
Gomme, ViUaga Community.) Hundred Rolls, Oxford.

i Tenentes Abbatis
in eadem.
i Hundr' in Aston'.

§ Servi.

Chancery Series, No. 1, m. 3.
/ § Robertus le Cans tenet in eadem j. mesuagium et
ij. virgatas terrae de Abbate de Eygn', et reddit per
annum dicto Abbati Eygn' iij.5.
§ Stephanus le Niwe tenet in eadem j. mesuagium
et ij. virgatas terrae de eodem, et reddit per annum
dicto Abbati xv.s. vij.rf. ob. q.
§ Robertus de Haddon' tenet in eadem j. mesua
gium [et] j virgatam terrae de Domino 'W. de 'Valen
cia, et reddit per annum dicto "W. de 'Valencia j.d.
§ Henricus Toni tenet in eadem j. mesuagium [et]
j. virgatam terrae de Abbate de Eygn', et reddit eidem
pro redditu iiij.s. pro opere iiij.s. iiij.rf. ob. q.
§ Willelmus Toni tenet in eadem j. mesuagium [et].
j. virgatam terrae de dicto Abbate, et reddit per annum
eidem pro redditu iiij.s., pro opere iiij.s. ixrf. ob. q.
§ Nicholaus Toni tenet in eadem consimile tene
mentum de eodem pro consimili servicio faciendo
eidem. § Emma Level tenet in eadem j. mesuagium et
\ dimidiam virgatam terrae cum v. acras de eodem,
^et reddit per annura dicto Abbati xj.s. iij.rf.

§ Lib[ere] tenentes. <

ZU ^vi.nbubot0, 451
/ § Johanna Galard tenet in eadem dimidiam virga
tam terrae de dono 'Willelmi fratris sui, et reddit eidem
per annum vj.rf. ; et idem 'WiUelmus tenet de here
ditate per defensum antecessorum suorum, qui dictam
dimidiam virgatam tense habuerunt de dono Reg[is],
cujus nomen ignoramus.
§ Thomas Wyteman tenet in eadem j. virgatam
terrae de Philippo de Lenethale, et est de confir-
matione Reg[is], ut dicta dimidia virgata terrae
praescripta ; et tenetur de 'Willelmo Gallard prae
dicto, et reddit per annum dicto Philippo xij.rf.
[The Abbot above mentioned was the Abbot of Eynsham.]
The Hundr. in Aston in the margin can hardly admit of
any other extension but hundredarius or hundredarii. It saams
then, that the term is applied to three tenants named first.
Tha raason for thinking so is, that all these three are assessed at
certain rents without any mention of labour services, whereas tha
three tenants who are next mentioned pay so much as rent
and so much more in commutation of labour service, ' pro
servitio.' The inference would ba, that the names in the beginning
apply to people burdened with suit to the hundred and to the
shire, and therefore exempted in other respects. Their rents ara
very unequal, but in any case lower than those of the men imme
diately following. One vary important feature admits of no dispute;
the hundredors ara described as servi, that is villains, in opposi
tion to the free tenants of tha Abbot of Eynsham. We know
already from tha text that the hundredors, if the name be applied
here as in the Ely Surveys, occupied an intermediate position, and
in one sense had certainly to rank with the viUains, people of
base tenure belonging to the townships.
Evan a more difficult example is contained in the fragment of
the Warwickshire Hundred RoU. Tha oft-mentionad description
of Stoneleigh in that document begins of course with tha demesne
land of the abbot, then mentions two viUains and thirty free
cottars holding ' ad terminum vitae.' Then follows a Ust of five
more free cotters. On tha margin between the two sets we raad
'da hundred da Stonle.' To whom does this phrase apply?
Thera is nothing in the tenura which would enable us to make a
positive distinction between the two sets, and it would seem that
the expression has in view some duties assigned in the roll to
the first thirty tenants in conjunction with tha viUains. It is written
immediately in front of the following passage : ' Omnes supradicti
Gga

452 MpptnbX)C.
cotarii ipsius abbatis debent sectam ad curiam suam bis in anno.
Et si contingat quod aliquis captus sit in dicto manerio debet im-
prisonari apud Stanle et tunc omnes vUlani et cotarii supradicti
ipsum servabunt at in custodia eorum erit dum ibi fuerit sumptibus
suis et sumptibus tocius manerii.'
The uncertainty of terminology is not without its meaning:
tha word ' hundredarius ' did not gat into general use, but it was
used in several places for difierent purposes. It may apply to
a baiUff of tha hundred, perhaps to the alderman, to tha standing
representative of a viUaga at the hundred court, and possibly to all
the free men who had to do personal suit to this court. It is not
in order to impose a uniform sense upon it, that I have treated of
it at this lengtL But in one of its meanings, in that which is
given by tha Ely Surveys, we find a convenient starting point for
discussing the position of an important and interesting class in
which the elements of freedom and servitude appear curiously
mixed. XII.
See p. 199, n. i.
It did not occur to the men of the thirteenth century that it
would ba important to distinguish between the different modes by
which free tenements had been created. To diaw the principal dis
tinction was enough for all practical purposes. Stray notices occur
however that give some insight into tha matter. Vary often wa find
tenements held per cartam, probably because this kind of title
was rather exceptional and seamed to deserve a special mention,
while commonly land was held without charter, on the strength
of a ceremonial investiture by the lord. This last mode does
not find uniform expression in the documents, but tha implied
opposition to holding by charter is sometimes stated in express
terms which bring out one or the other feature of free land holding.
One of the questions addressed to the jurors — from whose
verdicts the Hundred Rolls were made, was — Si aliquis fiber
sokamannus da antiquo dominico alii sokemanno vendiderit .vel
aUo modo alienaverit aliquid tenendum Ubera per cartam ^ ? The
free sokaman's tenure is meant, although the inquest is taken
' R. H. ii. 597. Cf. 469, 470.

3^ncknt fxuU^^* 453
on ancient deriiesne soil, and the point is that none of these
persons can alienate by charter, but must use the ceremonial
surrender in the court of ancient demesne according to the
custom of the manor. I have already drawn attention to the
reraarkable opposition between free customary tenure and holding
by charter. It is chiefly important because it discloses a traditional
element in the formation of the socman's tenure.
The same traditional element appears in other cases in which the
special position of the socman is not concerned. In Warwickshire
a free tenant by sergeanty is said to hold his land without charter
by warrant from ancient times, and the peculiar obUgations of his
sergeanty ara described at some length^. The charter appears
here in contrast with ancient ownership, to the origin of which
no date can be assigned. A similar case is that of Over, Cambs."
Robert de Aula holds two virgates of the Abbot of Ramsey de
antiquo conquestu and seven virgates de antiquo. Further on a
certain Robert Mariot is mentioned holding five virgates of Robert
de Aula de antiquo f eff amento. Tha weight faUs, in all these ex
pressions, on the de antiquo, which may even appear without any
' Exch. Q. R. Misc. Books A. 29, f. 64, b : ' Nota — predictus Ricardus (de
Loges) dicit se non habere IVarentum aliquem nisi per antiquam tenuram
sine carta . . . Idem Ricardus habet visum franci plegii unde vocat ad waran
tum le Domesday (!) . . . Idem Ricardus tenet quicquid tenet in Soume de
comite Cestrie, ut idem Ricardus dicit, per seruicium ducendi comitem Cestrie
usque curiam Regis per medietatem foreste predicte de Kanoke, obviando ei
ad pontem de Rocford ad mandatum comitis et idem comes dabit unam
sagittam barbatam dicto Ricardo et capiat in foresta unam feram si voluerit
eundo et aliam redeundo si voluerit, et in redeundo obviabit ei ad pontem de
Repelwas ad mandatum comitis et dabit ei aliam sagittam.' Cf. Rot. Hundr.
ii. 689 : '[Libere tenentes] Johanna Galard tenet in eadem dimidiam virgatam
terrae de dono 'WiUelmi fratris sui et reddit eidem per annum 6d. et idem
Willelmus tenet de hereditate per defensum antecessorum suorum qui dictam
dimidiam virgatam terrae habuerunt de dono Regis cujus nomen ignoramus.'
Thomas 'Wyteman tenet in eadem I virgatam terrae de PhUippo dc Lenet-
tale, et est de confirmacione Regis, ut dicta dimidia virgata terrae prescripta.
I have already quoted this passage in the note on the hundredors. I give it
as corrected according to the MS. in the Record OfSce. In the printed
version of the Hundred Rolls it has lost its raeaning.
* R. H. ii. 477, 478. ' Libere tenentes. Robertus de Aula tenet in predicta
villa duas virgatas terre de Abbate de Ramesaye de antiquo conquestu
et supradictas septem virgatas similiter de antiquo et facit sectam curie bis
per annum et si brevis domini Regis ibi sit faciet sectam de tribus septima
nis. . . . Robertus Mariot tenet 5 virgatas terre de Roberto de Aula de feodo
Episcopi Elyensis de antiquo feflfamento.'

454 3B,piptnbx)C'
further qualification. Of these quaUfications one is interesting in
itself, I mean ' de conquestu.' In tha language of those times it
may stand either i, for conquest in tha sense in which that
term is now commonly used, or 2, for purchase, or 3, for
occupation. Tha first of these meanings is naturaUy out of the
question in our casa. Tha second does not apply if wa take head
how the expressions interchange : it could be replaced by feoffa
mentum in the third instance, and could not have fallen out after
de antiquo in tha second. Ancient occupation fits waU, and such
a construction is supported by other passages. In Ayllington
(Elton), Hunts, a. g., we find the chief free tenants all, with one
exception, holding de conquestu in contrast with the mesne tenants
who are said to hold per cartam. The opposition is again clearly
between traditional occupation and new feoffment settled by
written instrument. In Sawtrey Beaumeys, on the other hand,
the mode of holding de conquestu seems exceptional '-
Another terminological opposition which finds expression in the
surveys is that between man who hold per homagium and those
who hold per fidelitatem. It seems to be commonly assumed that
free tenements owe homage, but without disputing the point in a
general way I shall call attention to the description of Kenilworth
in the Warwickshire Roll, in which libere tenentes are said to hold
per fidelitatem et nullum faciunt homagium ". Tha deviation must
probably be accounted for by tha fact that the castle of KanUworth
was Royal demesne and had been given to Edmund, tha brother
of King Edward I ; the pecuUar condition described was certainly
a species of customary freehold or socman's tenure.
Tha upshot is, that we find in tha Hundred Rolls traces of free
holds possessed by ancient tenure, ' without charter and warrant,'
according to customs which came down from tha time of the
Conquest, or the original occupation of the land, or from a
time beyond memory. The examples given ara stray instances
but important nevertheless, because we may wall fancy that in
' Rot. Hundr. ii. 656, 660. Cf. as to the meaning of antiqua tenura, etc.
Rot. Hundr. i. 79, 354.
" Exch. Q. R. Misc. Books, No. 29, f. 7 : ' Idem Edmundus habet libere
.tenentes subscriptos. Ricardus de HuUe tenet unum mesuagium et 8 acras
terre pro 14 solidis et secta ad curiam suam ibidem de tribus septimanis
in tres septiraanas (about ten simUar holdings) et sciendum quod omnes pre
dicti debent sectam predictam et tenent per fidelitatem et nullum faciunt
homagium,'

3^ncknt §vuUib0, - 455
many cases such facts escaped registration. And now how are all
these traces of the ' traditional ' element to be expressed in legal
language ? From what source did tha right of such people flow ?
How did thay defend it in casa it was contested ?
The absence of a charter is not by itself a reason to consider
this kind of tenure as separated from the usual freehold. A feoff
ment might wall ba made without a charter ^- As long as the form
ofthe investitura by tha lord had bean kept, it was sufficient to
create or to transmit tha fraa tenancy. But tha warranty of tha
lord and tha feoffment were necessary as a rule. And here wa find
cases in which there is no warranty, and tha lord is not appealed to
as a feoffor. They must be considered as held by surrender and
admittance in court and as being in this respect like the tenements of
the sokemen. I do not sea any other alternative. As to tha sokeman
we find indeed, that their right is contrasted with feoffment and
at tha same time considered as a kind of frae tenancy, that it is
defended by manorial writs, and at the same time wall established
in custom '^- But can we say that the warranty of tha lord is lass
prominent in this case than in the liberum tenementum created by
tha usual feudal investiture ? Surrender seems to go even further
in the direction of a resumption by the lord of a right which
he has conferred on the dependent. If surrender stood alone,
one would be unable to see in what way this customary procedure
could ba taken as an expression of ' communal guarantee.' But tha
surrender is coupled with admittance. The action of the steward
called upon to transmit by his rod tha possession of a plot of land
is indissolubly connected with the action of the court which has to
witness and to approve the transaction. The suitors of tha court
in their collective capacity come very characteristically to the front
in the admittance of the socman, and it is on their communal
testimony that tha whole transaction has to rest. The RoUs of
Stoneleigh and of King's Ripton give many a precious hint on this
subject '.
' Bracton, f. 33 b. Madox, Formulare Anglicanum.
2 Coram Rege, Pascha 6 Edw. I, f. 6, 6 : ' Et requisitus si aliquid scit
dicere quare predictum mesuagium quod est infra predictum manerium esse
non debeat de condicione antiqui dominici Regis, utpote per feoffamentum
domini Regis vel antecessorum suorum,' etc. Cf. Placit. Abbrev. 150 (quoted
p. 113, n. 4).
5 Besides the extracts from the Stoneleigh Register quoted on p. 113, n. i,
and p. 198, n. i, I may be aUowed to caU attention to f. 76 : ' Item nullus

456 3^pptnbxp.
I speak of the socmen in ancient demesne, but there can be no
doubt that originally the different classes of this group called soc
man ware constantly confused and treated as one and the same
condition. The free socmen and the base or bond socmen, the
population of manors in the hands of tha crown, of those which had
passed from the crown to subjects, and, last but not least, a vast
number of smaU proprietors who held in chief from tha king with
out belonging to tha military class, and without a clearly settled
right to a frae tenement — all these were treated more or less
as variations of one main typa. What held them together was the
suit owed to some court of a Royal Manor which had ' soka ' over
tham". Ultimately classification became more rigid, and theo
retically more clear ; free and socman's tenure were fused into
the one ' socage ' tenure, well known to later law, but wa must
not forget that Common Law Socage is derived historically
from a very special relation, and that tha socman appears even in
terminology as distinct from the ' libera tenens.' I must admit,
however, that it is only with the help of the documents of Saxon
times and of the Conquest period, that it wUl be possible to establish
conclusively tha character of tha tenure as that of a ' customary
freehold.'

adiudicabitur tenens terre nisi quia curia tenens acceptatur per fidelitatem et
alias consuetudines licet tenens extra curiam aliquem feofi'averit per cartam
Vel sine carta.' Maitland, Manorial Rolls of King's Ripton (Selden Soc. ii).
p. 122 : ' Capiatur in manum domini quarta pars unius rode prati jacens in
Smalemade quam Rogerus Greyling vendidit Nicholao le Neuman sine
licencia curie.' Cf as to the references to the Court-roll in case of doubt and
contention Augmentation Off. Court Rolls, Ripton Regis, xxiii, N. 94, f 10 :
' Et quod iuncta est secum vocat rotulos ad Warantwm. Et predicta Mathildis
dicit quod uxor eius non est iuncta et ponit se super rotulos.' Now the im
portance of the RoU is derived frora the authority of the Court of which it
records the proceedings.
2 Rot. Hundr. i. p. 104 : ' Sokemanni domini Regis de SoTca de Piclinton
tenere solebant 3 carucatas terre et unam bovatam in Brunneby de anteces
soribus Radulfi de Lacely et ipso Radulfo. De quibus hospitalarii habent
unam bovatam de dono antecessorum dicti Radulfi. . . . Itera prior de
Elreton 4 bovatas . . . que sunt de tenura sokemannorum.' These are free
men under Soke, but there is not much to distinguish them from people on
ancient demesne soil. Cf. Maddox, Exch. 428, c : ' Liberi sokemanni de
Askebi et Tinton reddunt compotum de 20 marcis et I palefridi ut Henricus
de NeviU eos juste deducat de tenementis quae tenent in eisdem vilUs, nee ab
eis exigat consuetudines vel servitia quae facere non solebant tempore
Henrici Regis patris Regis,' etc.

Open ^kib0, 457
XIIL
See pp. 233, 234.
Tha passage on which the text of these two pages is based may
ba found in a Survey of tha Dunstaple Priory. The portion im
mediately concerned is inscribed : ' Notulae de terris in Segheho'
(ff. 7, 8). Tha Walter de Wahull in question is probably the baron
of that name (Dugdale, Baron. I. 504), who joined the rebelUon of
II 73 along with tha Eari of Leicester, and was made a prisoner
(Rad. de Diceto I. 377, 378; Ann. Dunstapl. 21).
Hari. MS. i88s, f. 7.
§ Tempora conquestus terrae, Dominus de Wahull et Dominus
da la Laia diviserunt inter se feudum da WalhuU', widalicet, Domi
nus de WalhuU' habuit duas partes, et Dominus de la Lee, tertiam,
sciUcat, unus xx. milites, at alius x. Volans autem Dominus da
Wahuir retinere ad opus suum totum parcum de Segheho, at totum
dominicum de Broccheburg', fecit metiri tertiam partem in bosco et
in piano. Postea, fecit metiri tantumdem terrae, ad mensuram prae
dictae tartiaa partis, in loco qui nunc vocatur Nortwda, et in bosco
vicino, qui tunc vocabatur Cherlewde ; et abegit omnes rusticos
qui in praedicto loco juxta praedictum boscum manebant. Hiis ita
gestis, mensurata est terra de Segheho, et inventae sunt viii. ydae
vilenagiae. De hiis viii. ydis conputata est quarta acra ad unam
summam, et invanta est quod haec summa valebat tertiam partem
parci et dominici. Dadit argo Dominus de Wahull' Domino da la
Leie, scilicet, Stephano, pro tertia parte quam debuit sortiri in
bosco et in dominico, culturas praedictorum rusticorum, et boscum
qui nunc vocabatur Cherlawd', nunc Nortwd'. Dominus autem de
la Leie dedit hanc terram Bald' miUti suo, patri Roberti da Nortwd'.
Et inter terram praedictorum rusticorum habuimus de dono ecclesiae
unam acram. Pro hac acra Robertus pater Gileberti dedit nobis
[in] escambium aliam acram quae abutiat ad Fenmed', et jacet ad
vest, juxta terram Nigelli de Chaltun '. De ista praedicta acra in
Nortwd' quae nostra fuit, jacet roda una ad lomputtes, scilicet, roda
capitaUs. Alia roda jacet ad uest curiae Roberti praedicti ; quae
curia ipsius Roberti primo fuit ad uest, quam post obitum patris
mutavit, transferendo horrea sua de uest usque best. Tres goraa
jacent pro dimidia acra, et abutiant ax una parte versus viam quae

458 MpptnbiXf
dicitur via de Nortwd,' et ex aUa parte versus Edmundum
filium Uctred'. Procedenta tempora, tempore guerrae prae
dictae viii. ydae et caterae da Segheho fuemnt occupatae a
multis injuste ; et ob hoc racognitio fuit facta coram Waltaro de
Wahull', at coram Hugone da Leia, at in plana curia, per vi. senes,
et per ipsum Robertum, de hac nostra acra et da omnibus aliis
terris, scilicet, quae acrae ad quas hidas partineant : et par hanc
racognitionam, restituit nobis Robertus praedictam acram. Uctra-
dus drangus mansit ad uest de via da Nortwde, at grangiae ejus
fuerunt ax alia parte viae, scUicat, hast.
Tempore quo omnes tenentes da Segheho, scUicet, MiUtes,
liberi homines, et omnas alii incerti et nescii fuemnt de terris et
tenementis viUe, et singuli dicebant alios injuste plus aUis possidere,
omnes communi consUio, coram Dominis de Wahul' et de la Leie,
tradiderunt terras suas per provisum seniorum et par mensuram
partici quasi novus conquestus dividandas, et unicuique rationabUi-
ter assignandas. Eo tempore recognovit Radulfus Fretetot quod
antecessores sui et ipse injuste tenuerant placiam quandam sub
casteUo, que placia par distributores et par perticam mensurata est,
et divisa in xvj buttos ; at jacent hii butti ad Fulavell', et abut[tant]
sursum ad croftas villa. Hu butti ita partiti sunt. Octo yde sunt
in Segheho de vilanagio : singulis ydis assignati sunt ii. butti.
Ecclesiae vero dotata fuit de dimidia yda : ad hanc dimidiam ydam
assignatus fuit unus buttus : sed postquam ilium primum habuimus,
bis seminatus fuit, at non amplius, quia ceteri omnes non excol[un]t
ibi terram, sed ad pascua reservant : un[de] est, quia locus ramotus
est, nac pratum habemus nee bladum.
He terra prenominate sunt in campo qui dicitur Hestfeld.
Summa, xix acre et tres roda.
XIV.
See p. 302, n. i.
Cotton MS. Galba E. X. f. 19.
Hac est firma unius cuiusque uille que reddit plenam firmam
duarum ebdomadarum.
Duodecim quarteria farina ad panem monachorum suorumque
hospitum que singula faciunt quinque treias Ramasie, et unaqueque
traia appreciatur duodecim denariis precium uniuscuiusque quartarii
fuit quinque sol. Summa precii 12 quarteriorum, 60 sol. et 2 milUa

Jbo5 Jatttt0. 459
panum uillarum uel 4 quarteria ad usum seruiaritium. Precium
unius mUle dimidiam marcam arganti. Summa precii Integra
marca. Ad potum 24 missa de grut quarum singulas faciunt una
treia Ramasii at una ringa. Appreciatur una missa 12 den.
Summa precii da brasio 32 sol. sunt at 2 saptaria maUis 32 den. sunt
summa precii 5 sol. at 4 den.
Ad compadium 4 libra in denariis et decem pensa lardi. Precium
unius pense 5 sol. sunt. Summa precii 5 obol. Et decem pense
casei. Precium unius pense 3 soUdi sunt. Summa precii 30 sol.
Et decem frenscengia peroptime. Precium uniuscuiusque sunt
6 dan. — Et 14 agni. Agnus pro denario — ^Et 120 gallina, 6 pro
den. — Et 2000 ovorum. Precium unius miUa 2 sol. sunt. — Et 2 tine
butiri. Precium unius tine 40 dan. — Et 2 treie fabarum. Prae.
1 treie 8 den. sunt. Et 24 misse prebende. Precium unius misse
8 den. — Summa precii totius supradicte firma 12 libre sunt et 15
sol. et I dan. exceptis 4 libris supradictis, qua solummodo debent
dari in denariis de unaquaque plena firma duarum ebdomadarum.
Et postquam hac omnia reddita fuerunt, firmarius persoluet 5
solidos in denariis, uno denario minus, et sic implebuntur 17
libra plenae in dica cellerarii et unum mille da aUic sine dica et
firmarius dabit present cellerario ter in anno sine dica.
VUla que reddit firmam plenam unius ebdomada, dimidium
omnium supradictorum reddet. Excepto quod unaquaque vUIa
cuiuslibat firme sit, ual duarum ebdomadarum, uel unius plene
firme, uel unius lente firma, dabit aqualiter ad mandatum pauperum
1 6 denarios de acra elemosin.
ViUa qua reddit lente firmam unius ebdomada, omnino sicut
plana firma unius ebdomade reddet. Exceptis quinque pensis
lardis et 5 pensis casei quas non dat set pro eis 40 solidos in
denariis et alios 40 sol. sicut plena firma.

XV.

See p. 344, n. i.
Ayllington or Elton, Hunts, is remarkable on account of tha
contrast between its free and servile holdings, as described in the
Hundred RoUs. It would be interesting to know whether the
former are to be considered as ancient free tenements, or as the

46o 3Srppinbxx,
outcome of modern exemptions. The Hundred Rolls point in the
first direction (ii. 656). Soma of the tenements under discussion are
said to be held da conquestu, and it would be impossible to put
any other interpretation on this term than that of ' original occupa
tion.' It means the same as the ' de antiquo conquestu ' of other
surveys (sup. p. 453).
But when we compare the inquisition published in the Ramsay
Cartulary (Rolls Sar. i. 487 sqq.) wa coma upon a difficulty.
There the holdings ara constantly arranged under the two headings
oi virgatae operariae and virgatae positae ad censum, tha population
is divided into operarii and censuarii, and in one case wa find even
the following passage : ' item quaelibet domus, habens ostium aper
tum versus vicum, tam de malmannis, quam de cotmannis et
operariis, inveniret unum hominem ad lovebone, sine cibo domini,
praetar Ricardum Pemdoma, Henricum Francays, Galfridum
Blundy, Henricum le Monnier.' And so most of the fraa people
are actually called molmen, and this would seam to imply that thay
were libere tenentes only in consequence of commutation.
It seems to ma that there is no occasion for such an inference.
The molmen in the passage quoted are evidentiy tha same as tha
censuarii of other passages, and although, in a general way, the
expression mal was probably employed of quit-rents, stiU it was
wide enough to interchange with gafol, and to designate all kinds
of rents, without any regard to their origin. And of course, this
is even more the casa with census. Upon the whole, I do not see
sufficient raason to doubt that we have freeholders before us who
held their land and paid rent ever since the original occupation of
the soU.

INDEX.

Agreement as the origin of free tenure,
335 ; between lord and village,
359-
Akerman, 147.
Amercement, 163.
Ancient conquest, 453.
Ancient demesne, definition, 89, 90 ;
privileges, 92 ; tenantry, 114; Saxon
origin, 123, 136; courts, 379,
Ancient freehold, 344, 352.
Anelipeman, 213.
Approvement, 273.
Assarts, 332.
Assessment, 244.
Assisa terra, 333.
Aston and Cote, Oxon, 392, 450.
Astrier, 56.
Auxilium, 293.
Averagium, 285, 286, 309.
Aver-earth, 280.
Aver-land, 257.
Ayllington (Elton), Hunts, 337, 460.

Bailiff, 318.
Balk, 232.
Barlick-silver, 291.
Beadle, 318.
Ben-earth, 281.
Birth, influence on status, 59.
Blackstone, view of English history,
7 ; on copyholds, 80 ; on ancient
demesne tenure, 112.
Board-lands, 314.
Bockyng, Essex, 315.
Bondus, 145.
Boon work, 174.
Borda, 256.
Bordarius, 145, 149.
Borough English, 82, 157, 185.
Bosing-silver, 291.
Bovati, 238.
Bracton, on villainage, 47 ; on status,
60 ; on convention between villain
and lord, 71 ; on waynage, 74 ; on
villain tenure and villain services.

77 ; on villain socage, 89, 115, 121 ;
on rights of common, 269.
Braseum, 289.
Britton, on prescription, 63 ; on the
prohibition against devising vil
lains, 76 ; on privileged villainage,,
109.
Butta, 232.
Campus, 228.
Carriage duties, 285.
Carta, 199, 452.
Carucarius, 147.
Censuarius, 186.
Ceorls, Palgrave on, 14; connexion
with villains, 135 ; history of the
term, 149.
Chevagium, 157.
Churchscot, 295.
Common, of pasture, 263 ; appendant
and appurtenant, 265 ; intrinsec ancl
forinsec, 270 ; of wood, 275,
Communal liability, 357.
Communitas villanorum, 359.
Commutation, 179, 307.
Conquest, Norman, 123, 130, 133,
135-
Conquest, Saxon, Palgrave on, 13 ;
Kemble on, 18 ; Freeman on, 22 ;
Seebohm on, 34.
Conveyancing, 216, 371.
Copyhold, 80, 115, 216, 310.
Cornage, 295.
Cornbote, 289.
Costeseye, Norfolk, 435.
Cotland, 256.
Cottarius, cotsetle, cottagiarius, 148,
Court Baron, 365.
Court leet, 362.
Court of ancient demesne, 378.
Court roll, 173, 374.
Criminal law, 64.
Curia, plena curia, 375, 377.
Custom, 172, 174, 181, 213, 297.
Custumarius, consuetudinarins, 146,
170.

462

JnJex.

Day-work, 288.
Defence, 260.
Demesne, 223, 313 ; free tenements
carved out of it, 327; its develop
ment, 406.
Denerata, 257.
Dialogus de Scaccario, on villainage,
44 ; on Englishry, 64 ; on the Con
quest, 7 21, 122.
Domesday Survey of Kent, 205 ; on
classes, 209.
Donum, 293.
Election of manorial ofificers, 355.
Elton, C. I., on ancient demesne
tenure, 112 ; on shifting ownership
of arable, 236.
Ely Surveys, 441 .
Emphyteusis, 333.
Enfranchisement, by feoffment, 70 ;
I modes of manumission, 86 ; by
' convention, 183; as gradual eman
cipation, 184, 214.
Essartum, 332.
Exemption from labour, 296, 322.
Extraneus, 142,
Fald-silver, 291.
Farm, feorm, 301, 459.
Fastnyng-seed, 282.
Fealty, 164, 454.
Feoffment, 347, 455.
Ferdel, 256.
Ferlingsetus, 148.
Festuca, 372.
Feudalism, Kemble on, 20 ; influence
on viUainage, 131 ; oppression,
204.
Field systems, 224.
Filstnerthe, Filsingerthe, 282.
Firmarius, 305.
Fish-silver, 291.
Fleta on the hide, 241.
Fleyland, 170.
Foddercorn, 2S8.
Food-rents, 304.
Forinsecus, 142.
Forland, 332.
Frank pledge, villains in, 66, 418 ;
and leet, 363.
Free bench, 1 60.
Freeman, Edw., 22.
French Revolution, 10.
Fustel de Coulanges, 17, 32.
Gafol, 184, 187.
Gafol-earth, 280.
Gathercorn, 289.
Gavelkind, 207. -
Gavelman, 187.

Gavelseed, 288.
Gebur, 145.
Geneat, 145.
Gersumarius, 147.
Gild, 293.
Glanville, ou status, 59 ; on manumis
sion, 87.
Gneist, R., 24.
Godlesebene, 282.
Gomme, on early folk-mots, 367.
Gora, 231.
Grass-earth, 280.
Hale, Archdeacon, on the farm system,
395-
Halimote, 364, 370.
Hallam, his work on the Middle Ages,
II ; on villainage, 48.
Hand-dainae, 288.
Havering atte Bower, Essex, 108,
436-
Headland, 232.
Heriot, 159.
Hidage, 294.
Hide, 239, 241, 244 ; Kemble on,
19.
Hidarius, 147.
Hitchin, Herts, 394.
Holding, 238, 241, 249, 263, 300;
origin, 401.
Homagium, 455.
Hundred, 67, 192, 445.
Hundredarius, 188, 194, 441, 450.
Hundred Rolls, on merchet, 154 ; on
free tenements, 336.
Huntenegeld, 292.
Husfelds, 314.
Inheritance, 246.
Inhoc, 226.
Inland, 328.
Intermixture of strips, 234, 254, 317.
Jugum, 248, 309.
Juratores curiae, 376.
Kemble, 18.
Kentish custom, 205, 248.
King's Ripton, Hunts, 93, 106, 110,
383-
Labourers, hired, 321.
Lammas-meadow, 260.
Landchere, 290.
Landgafol, 292.
Landsettus, 146.
Leases, of demesne land, 329 j for life
and term of years, 330.
Legal theory, 44, 127.
Lentenearth, 282.

^nbtX'

463

Levingman, 213.
Liberaciones, liberaturae, 176, 322.
Liber homo, 140 ; as suitor of hali
mote, 389.
Libere tenens, 140, 169, 178, 311 ;
customary freeholder, 220, 456 ; as
overseer of labour, 368, 407 ; sub
jected to the manorial arrangement,
325 ; forinsecus, 327 ; as suitor of
halimote, 386.
Linch, 232.
Littleton, on villains regardant and in
gross, 49.
Lodland, 257.
Lord, origin of his rights, 151 ;
aihercements, 163 ; control over
villain land, will and pleasure, 212,
297 ; as owner of the waste, 272 ;
equity, 384 ; growth of his power,
404.
Lundinarium, 256.
Lurard, 319.
Maine, Sir Henry, 28.
Maitland, F. W., on John Fitz Geof
frey's case, 98 ; on hundred and
county courts, 189, 192 ; on the leet,
362 ; on the division of manorial
courts, 364 ; on manorial present
ments. .^71 ; on court of honor,
390 ; ou the manor, 395.
Mal, 184, 187.
Maltsilver, 291.
Manor, Blackstone's theory, 8, 9 ; in
fluence on status, 57, 61, 85 ; gene
ral organisation, 223 ; husbandry,
316 ; in relation to the township,
394 ; its elements, 405.
Manuoperationes, 287.
Mark, 19.
Marriage, 62, 139.
Martin of Bertenover v. John Monta
cute, 78.
Maurer, G. F. von, 26.
Maurer, Konrad, 21.
Meadows, 259.
Mederipe, 283.
Men of Halvergate v. Roger Bigod,
earl of Norfolk, 431.
Men of King's Ripton v. Abbot of
Ramsey, no, 425.
Men of Tavistock v. Henry of Tracy,
119.
Men of 'Wycle v. Mauger le 'Vavasseur,
102, III.
Merchet, 82, 153, 202.
Messarius, messor, 319.
Ministeriales, 319, 323, 406.
Mirror of justice, 415.
Molland, 183.

Molmen, 183.
Mondayland, 256.
Monopolies, manorial, 163.
Monstraverunt, writ of, loi, 104, 108,
no, 116.
Nasse, E., 26.
Nativus, 45, 142, 440.
Neat, niet, 144.
Ne injuste vexes, writ of, 420.
Nook, 256.
Note-book^of Bracton, on conventions
of lord with villain, 73 ; on Martin
of Bestenover's case, 79 ; on manu
mission, 88 ; on the Tavistock case,
119.
Nummata, 257.
Oath of fealty, 164.
Open field systems, 225, 237; Nasse on,
27 ; Seebohm on, 231 ; origin, 399.
Operarius, 146.
Palgrave, Sir Francis, 12.
Pannage, 291.
Parvum breve de recto, 94, 100.
Pasture, 261.
Pedigree of villains, 440.
Pell, O., on acrewara, 242.
Penyearth, 282.
Petitions to the Kiug, 102.
Ploughing work, 278.
Plough team, 238, 252.
Police, in relation to villainage, 66,
139-
Pollock, Sir Frederic, on conventions
with villains, 72.
Precariae, 281, 284, 308.
Prepositus, 318.
Prescription, 63.
Presentments in the halimote, 368.
Prior of Hospitalers v. Ralph Crips
and Thomas Barentyn, 54, 412.
Prior of Ripley v. Thomas Fitz- Adam,
83.
Prohibition against selling animals,
156.
Quare ejecit infra terminum, writ of,
33°-
Quit-rent, 291.
Quo jure, writ of, 265, 270.
Radacre, 282.
Reaping work, 283.
Recognition, 348.
Reeveship, 157.
Regular arrangement, of villain hold
ings, 334, 345 ; of free holdings,
337 ; of socmen's holdings, 349.

464

3nb^)c.

Relief, 162.
Remuneration of servants, 321.
Rent, 181, 188, 215; trifling, 290;
of free tenants, 342.
Revision of procedure, 99.
Rofliesland, 334.
Roger Fitz William v. Abbot of Bury
St. Edmunds, 422.
Rogers, J. Thorold, on legal theory,
44 ; on manorial documents, 138.
Roman influence, Palgrave's view, 14 ;
French scholars, 16 ; Seebohm, 33.
Rotation of crops, 230.
Royal jurisdiction, 219.
Scrutton, T. E., 266.
Scutage, 294.
Scythepenny, 291.
Seebohm, F., 32.
Segheho, Beds, 233, 457.
Self-government, communal, 355, 361.
Selio, 231.
Seneschal, 318.
Sequela, 300.
Serfdom, 43, 152.
Serland, 257.
Servientes, 320.
Services, implying villainage, 82 ; un
certain, 83 ; certain on ancient de
mesne, no; labour, 167, 215, 305.
Servus, 45, 141.
Shareholding, 340, 347.
Sixteen of Aston and Cote, 393.
Slavery, 43, 47.
Socagium ad placitum, 334.
Soc'semanemot, 365.
Soke, 391.
Socmen, free, 196, 204, 456 ; on an
cient demesne, 113, 197, 456 ; vil
lain, 89, 91, 199; nature of tenure,
113, 116.
Solanda, 255.
Status, 83.
Statute of labourers, 54, 412.
Statute of Merton, 273.
Statute of 'Westminster II, 273, 274.
Steward, 318, 354.
Stoneleigh Abbey, 91, 93, 105, 116,
381, 426.
Stubbs, 'W., 23.
Suitors of halimote, 370 ; in ancient
demesne court, 380 ; free, 386.
Sulung, 247.
Surrender and admittance, 371, 455.
Symon of Paris v, H. bailiff of Sir
R. Tonny, 41 1.

Tallage, 163.
Tenmanland, tunmanland, 255.
Teutonic influence, Palgrave on, 13 ;
German scholars, 17; Kemble, 19;
Freeman, 22 ; Stubbs, 23; Gneist,
24.
Township, 394.
Turnbedellus, 329.
Tywe, 282.
Undersette, 213.
¦[Jnlawenearth, 282.
Vagiator, 319.
'Village community, Nasse on, 27 ;
Maine, 28 ; Seebohm, 33 ; acting in
the interest of the lord, 355 ; acting
independently of the lord, 357; as
a farmer, 360 ; its relation to the
manor, 404.
Villain, sold, 151 ; opposed to serf,
419 ; civil disabilities, 67, 159, 166 ;
free as to third persons, 68 ; con
vention with the lord, 70, 182 ;
waynage, 74, 420 ; not to be de
vised, 76 ; claimed by kinship, 84,
417; on ancient demesne, 114; in
manorial documents, 140, 150.
Villainage, definitions, 44 ; exception
of, 46 ; in gross and regardant, 48,
411, 413-
Villain tenure, 77, 165 ; free man
holding in villainage, 80, 81, 143 ;
held by labour services, 167.
Virga, 173, 372.
Virgata, virgatarius, 148, 238.
'Walter of Henley, on field systems,
225 ; on the hide, 241.
'Wara, 242.
'Ward-penny, 291.
¦Waynage, 74, 420.
¦Week-work, 280.
William Fitz Henry v. Bartholomew
Fitz Eustace, 80.
William Fitz Robert v. John Chelte
wynd, 421.
William Taylor v. Roger of Sufford,
73-
Wista, 255.
Wood-penny, 291.
Workman, 186.
Wye, Kent, 309.
Yerdling, 148.
York Powell, F., on manumission, 87.

THE END.

5269

FEB 2 5 '87