Villainage in England: Essays in English Mediaeval History

The court roll.

And now let us take up the second thread of our inquiry into the manorial forms of conveyancing. A tenant by the verge is also a tenant by copy of court roll. The steward who presided at the court had to keep a record of its proceedings, and this record had a primary importance for the servile portion of the community. While the free people could enter into agreements and perform legal acts in their own name and by charter, the villains had to content themselves with ceremonial actions before the court. They were faithful in this respect to old German tradition, while the privileged people followed precedents which may be ultimately traced to a Roman origin. The court roll or record of manorial courts enabled the base tenant to show, for instance, that some piece of land was his although he had no charter to produce in proof of his contention. And we find the rolls appealed to constantly in the course of manorial litigation817. But the rolls were nothing else than records of actions in the court and before the court. They could actually guide the decision, but their authority was not independent; it was merely derived from the authority of the court. For this reason the evidence of the rolls, although very valuable, was by no means indispensable. A claimant could go past them to the original fount, that is, to the testimony of the court. And here we must keep clear of a misconception suggested by a first-sight 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 jurymen taken by the judges of the Royal Courts. This is not so, however. It is true that the striving of manorial officers to make the procedure of halimotes as much like the common law procedure as possible, went far to produce similarity between forms of actions, presentments, verdicts and juries, in both sets of tribunals. But nevertheless, characteristic distinctions remained to show that the import of some 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 questions of law as well as on questions of fact. But the most important point for our present purpose is this: the jurors called to substantiate the claim of a party in a trial are mere representatives of the whole court. The testimony of the court is taken indirectly through their means, and very often resort is had to that testimony without the intermediate stage of a jury. Now this is by no means a trifle from the point of view of legal analysis. The grand and petty juries of the common law are means of information, and nothing more. They form no part of the tribunal, strictly speaking; the court is 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 understanding of local conditions surrounding them, is supposed to reside naturally in the country where the facts have taken place818. 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 manorial jury, on the other hand, represents the court, and interchanges with it819. 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 course, claims may not be always reduced to such elementary forms that they can be decided by a mere reference to memory, the memory of the 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 repository of legal lore, and the exponent of its applications. This means that the court is, what its name implies, a tribunal and not a set of private persons called upon to assist a judge by their knowledge of legal details or material facts820.

Communal testimony.

The whole exposition brings us back to a point of primary importance. The title by which land is held according to manorial custom is derived from communal authority quite as much as from the lord's grant. Without stepping out of the feudal evidence into historical inquiry, we find that civil arrangements of the peasantry are based on acts performed through the agency of the steward, and before the manorial court, which has a voice in the matter and vouches for its validity and remembrance. The 'full court' is noticed in the records as quite as necessary an element in the conveyancing business as the lord and his steward, although the legal theory of modern times has affected to take into account only these latter821. Indeed, 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 presentment of offences through the representatives of townships, 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 the ancient demesne.

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

We have seen that it would be impossible to maintain that originally the steward was the only judge of the manorial tribunal; the whole court with its free and unfree suitors 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, that in the exercise of their functions they were beginning to monopolise the power of ultimate decision and to restrict the court to the duty of preliminary presentment. The same parties are in presence in the court of ancient demesne, but the right of the suitors has been summed up by legal theory in quite the opposite direction. The suitors are said to be the judges there; legal dogmatism has set up its hard and fast definitions, and drawn its uncompromising conclusions as if all the historical facts had always been arrayed against each other without the possibility of common origins and gradual development. Is it necessary to say that the historical reality was very far from presenting that neat opposition? The ancient demesne suitors are villains in the main, though privileged in many respects, and the lord and steward are not always playing such a subordinate part that one may not notice the transition to the state of things that exists in common law manors. It is curious, anyhow, that later jurisprudence was driven to set up as to the ancient demesne court a rule which runs exactly parallel to the celebrated theory that there must be a plurality of free tenants to 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 manor822.' 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 11/12 Edw. III823. Herbert of St. Quentyn brought a writ of false judgment against John of Batteley and his wife, the judgment having been given in the court of Cookham, an ancient demesne manor. The suitors, or suit-holders as they were called there, sent up their record to the King's Bench, and many things were brought forward against the conduct of the case by the counsel for the plaintiff, the defendant trying to 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 appointed before the steward, on condition that the steward should tell it to the suitors in the next court after receiving him. The case is interesting, not merely because it exhibits the suit-holders in the undisputed position of judges, but also because it shows the difficulties created by the presence of the second element of the manorial system, the seignorial element, which would neither fit exactly into an entirely communal organisation nor be ousted from it824. 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 results are contradictory, but on the same line, as I say. And the more we go back in time, the more we find that both elements, the lord and the community, are equally necessary to the constitution of the court. In the thirteenth century we find already that the manorial bailiffs are made responsible for the judgment along with the suitors and even before them825.

The rolls of ancient demesne manors present a considerable variety of types, shading off from an almost complete independence of the suitors to forms which are not very different from those of common law manors. Stoneleigh may be taken as a good specimen of the first class.

The court at Stoneleigh.

The manor was divided into six hamlets, and every one of these consisted of eight virgates of land which were originally held by single socmen; although the regularity of the arrangement seems to have been broken up very soon in consequence of increase of population, extension of the cultivated area, and the sale of small parcels of the holdings. The socmen met anciently to hold courts in a place called Motstowehill, and afterwards in a house which was built for the purpose by the Abbot. The way in which the Register speaks of the admission of a socman to his holding is very characteristic: 'Every heir succeeding to his father ought to be admitted to the succession in his fifteenth year, and let him pay relief to the lord, that is, pay twice his rent. And he will give judgments with his peers the socmen; and become reeve for the collection of the lord's revenue, and answer to writs and do everything else as if he was of full age at common law.' The duty and right to give judgment in the Court of Stoneleigh is emphatically stated on several occasions, and altogether the jurisdictional independence of the court and of its suitors is set before us in the smallest but always significant details. If somebody is bringing a royal close writ of right directed to the bailiffs of the manor it cannot be opened unless in full court. When the bailiff has to summon anybody by order of the court he takes two socmen to witness the summons. Whenever a trial is terminated either by some one's default in making his law or by non-defence the costs are to be taxed by the court. The alienation of land and admittance of strangers are allowed only upon the express consent of the court826. In one word, every page of the Stoneleigh Register shows a closely and powerfully organised community, of which the lord is merely a president.

Rolls of King's Ripton.

The rolls of King's Ripton are not less explicit in this respect. People are fined for selling land without the licence of the court, for selling it 'outside the court827.' The judgment depends entirely on the verdict given by the community of suitors or its representatives the jurors. When the parties rely on some former decision, arrangement, or statement of law, they appeal to the rolls of the court, which, as has been said already, present nothing else but the recorded jurisprudence of the body of suitors828. 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 tenants829. But it is hardly necessary to dwell on so normal an event. I should like to take up for once the opposite standpoint, and to show that in these very communities on the ancient demesne elements are apparent which have thrived and developed in ordinary manors to such an extent as to obscure their self-government. In the Rolls of King's Ripton we might easily notice a number of instances in which the influence of the lord makes itself felt directly or indirectly through the means of his steward. We come, for instance, on the following forms of pleading: An action of dower is brought, and the defendants ask that the laws and customs hitherto used in the court should be observed in regard to them—they have a right to three summonses, three distraints, and three essoins, and if they make default after that, the land ought to be taken into the lord's hand, when, but only if it is not replevied in the course of fifteen days, it will be lost for good and all. All these demands are granted by the steward, with whom the decision, at least formally, rests830. Again, when we hear that the whole court craves leave to defer its judgment till the next meeting, it is clear that it rests with the steward to grant this request831. 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 interview832. The proceedings are irregular and interesting: the usual forms of action are disregarded; a verdict is given, but the material decision is left with the lord, and is to be sought for by private intercession. Quite close to this entry we find an instance which is in flagrant contradiction with such a considerate treatment of all parties. The jurors of the court are called upon to decide a question of testament and succession. They say that none of them was present when the testament was made, and that they know nothing about it, and will say nothing about it. 'And so leaving their business undone, and in great contempt of the lord and of his bailiffs, they leave the court. And therefore it is ordered that the bailiffs do cause to be levied a sum of 40 s. to the use of the lord from the property of the said jurors by distress continued from day to day833.' 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 origins, we have the same thing here as in ordinary manors, although the peculiarities of the ancient demesne have brought forward the features of communal organisation in a very marked way, and have held the element of lordship in check.

Free suitors in the halimot.

We have seen that there was only one halimot in the thirteenth and the preceding centuries, and that the division into customary court and court baron developed at a later time. We have seen, secondly, that this halimot was a meeting of the community under the presidency of the steward, and that the relative functions of community and steward became very distinct only in later days. It remains to be seen how far the fundamental 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 butler, but when he gets convicted by a good inquest of jurors of having broken the lord's hedges and carried away the lord's fowls, he will not justify himself of these trespasses and departs in contempt, doubtless because he will not submit to the judgment of people who are not on a par with him834. Freeholders object to being placed on ordinary juries of the manor835, although they will serve as jurors on special occasions, and as a sort of controlling body over the common presenters836. Amercements are sometimes taxed by free suitors837. But although some division is apparent in this way, and the elements for a separation into two distinct courts are gathering, the normal condition is one which does not admit of any distinction between the two classes. We come here across the same peculiarity that we have seen in police and criminal law, namely, that the fundamental line of civil condition seems disregarded. Even when a court is mainly composed of villains, and in fact called curia villanorum, some of its suitors may be freeholders838. Even in a court composed of free people, like that of Broughton, there may be villains among them839. The parson, undoubtedly a free man, may appear as a villain in some rolls840. Altogether, the fact has to be noticed as a very important one, that whatever business the freeholders may have had in connexion with the manorial system, this business was transacted by courts which consisted chiefly of servile tenants841. In fact the presenting inquests, on which the free tenants refused to serve, would not be prevented by their composition from attainting these free tenants.

Requirement of free suitors.

This seems strange and indeed anomalous. One point remains to be observed which completes the picture: although the great majority of the thirteenth century peasantry are mere villains, although on some manors we hardly distinguish freeholders, there is a legal requirement that there should be at least a few freeholders on every manor. Later theory does not recognise as a manor an estate composed only of demesne land and copyhold. Freeholds are declared to be a necessary element, and should they all escheat, the manor would be only a reputed one842. We have no right to treat this notion as a mere invention of later times. It comes forward again and again in the shape of a rule, that there can be no court unless there are some free tenants to form it. The number required varies. In Henry VIII's reign royal judges were contented with two. In John's time as many as twelve were demanded, if a free outsider was to be judged. The normal number seems to have been four, and when the record of the proceedings was sent up to the King's tribunal four suitors had to carry it. The difference between the statement of Coke and the earlier doctrine lies in the substitution of the manor for the court. Coke and his authorities, the judges of Henry VIII's reign, speak of the manor where the older jurisprudence spoke of the court. Their rule involves the more ancient one and something in addition, namely, the inference that if there be no court baron there is no manor. Now this part of the doctrine, though interesting by itself, must stand over for the present. Let us simply take the assertion 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 1294 it is noted in the report of a trial that, 'in order that one may have a court he must have at least four free tenants, without borrowing the fourth tenant843.' Now a number of easy explanations seem at hand: four free tenants at least were necessary, because four such tenants were required to take the record up to the king's court and to answer for any false judgment; a free tenant could protest against being impleaded before unfree people; some of the franchises could not be exercised unless there were free suitors to form a tribunal. But all these explanations do not go deep enough: they would do very well for the later court baron, but not for the halimot. It is not 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 particularly 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 puzzling questions: thus if one turns to the manorial surveys of the time, the freehold element seems to be relatively insignificant and more or less severed from the community; if one takes up the manorial rolls, the halimot is there with the emphatically expressed features and even the name of a court of villains; but when the common law is concerned, this same tribunal appears as a court of freeholders. The manors of the Abbey of Bec on English soil contained hardly any freeholders at all. Had the Abbey no courts? Had it no manors from the standpoint of Coke's theory? What were the halimots whose proceedings are recorded in the usual way on its manorial rolls? In presence of these flagrant contradictions I cannot help thinking that we here come across one of those interesting points where the two lines of feudal doctrine do not meet, and where different layers of theory may be distinguished.

Free suitors and freeholders.

Without denying in the least the practical importance of such notions as that which required that one's judges should be one's peers, or of such institutions as the bringing up of the manorial record to the King's Court, I submit that they must have exercised their influence chiefly by calling forth occasions when the main principle had to be 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 business; that he was free against everybody but his lord in civil dealings; that the frank-pledge system to which he belonged was actually taken to imply personal freedom, although the freeholders ultimately escaped from it. I cannot help thinking that a like transformation of meaning as in the case of frank-pledge did take place in regard to the free suitors of the manorial court. The original requirement cannot have concerned freeholders in the usual legal sense, but free and lawful men, 'worthy of were and wite'—a description which would cover the great bulk of the villains and exclude slaves and their progeny. When the definitions of free holding and villainage got to be very stringent and marked, the libere tenentes 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 noticed844 that care seems to be taken that there should be certain Freemen or Franklains in every manor. The feature has been mentioned in connexion with the doctrine of free suitors necessary to a court. But these people are by no means free tenants; in the usual legal sense they are mostly holding in villainage, and their freedom must be traced not to the dual division of feudal times, but to survivals of the threefold division which preceded feudalism, and contrasted slave, free ceorl, and military landowner.