Villainage in England: Essays in English Mediaeval History

Honorial Courts.

Before concluding this chapter I have to say a few words 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 about the Honour and its Court845. He has proved that it is no mere aggregate of manors, but a higher court, constructed 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 main 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.

The soke.

A second phenomenon well worth consideration is the existence in some parts of the country of a unit of jurisdiction and management which does not fall in with the manor,—it is called the soke, and comprises free tenantry dispersed sometimes over a very wide area. A good example of this institution is given by Mr. Clark's publication on the Soke of Rothley in Lincolnshire846. We need not go into the details of the personal status of the tenants, they clearly come under the description of free sokemen. Our present concern is that they are not simply arranged into the manor of Rothley as usual, but are distinguished as forming the soke of this manor. They are rather numerous—twenty-three—and come to the lord's court, but their services are trifling as compared with those of the customers, 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 thirteenth century, and within the realm of feudal law the case of Rothley is of course by no means the only one847. If we contrast this exceptional appearance of the soke outside the manor 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 management of the estate, but that in the general course of events it was merged into the estate and formed 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 simply join the manorial meetings. 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 from everybody else. In short, to state the difference in a pointed form, the other people were tenants and they were subjects.

The Aston case.

One more point remains to be noticed. In order to make it clear we must by way of exception start from the arrangements of a later epoch than that which we have been discussing. 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 meeting which does not coincide with the manorial divisions, and appears constructed on the lines of a village community which has preserved its unity, although several manors have grown out of it. It was stated by the lord of the manor of Aston and Cote in 1657, that 'there hath been a custom time out of mind that a certain number of persons called the Sixteen, or the greater part of them, have used to make orders, set penalties, choose officers, and lot meadows, and do all such things as are usually performed or done in the courts baron of other manors.' All the details of this case are interesting, but we need not go into them, because they have been set out with sufficient care in the existing literature, and summed up by Mr. Gomme in his book on the Village Community848. It is the main point which we must consider. Here is an assembly meeting to transact legal and economic business, which acts on the pattern of manorial courts. And if not a manorial court, what is it? I think it is difficult to escape the conclusion that it is a meeting of the village community outside the lines of manorial division. The supposition that it represents the old manor of Bampton, 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 assembly assuming the competence of a court baron—we should have had the manorial court and the lord of Bampton, and not the Sixteen to speak of. The fact is patent and significant. It shows by itself that there may have been cases where the village community and the manor did not coincide, and the village community had the best of it.

Manor and Township.

The first proposition does not admit of doubt. It was of quite common occurrence that the land of one village 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 between the owners849; ancient custom and the interference of manorial officers chosen from the different parts could help on many occasions. But it is impossible to suppose, in the light of the Bampton instance, that meetings might not sometimes exist in such divided villages which took into their hands the management of the many economic questions arising out of common husbandry: questions about hedges, rotation of crops, commonable 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 disclose a number of similar instances. Our own material does not help us, because it passes over questions of husbandry, and touches merely jurisdiction, ownership, and tenant-right. And so we must restrict ourselves to notice the opening for an inquiry in that direction.

Township and Manor.

Such an inquiry must also deal with the converse possibility, namely, the cases in which the manor is so large that several village units fit into it. We may find very frequently in some parts of the country large manors which are composed of several independent villages and hamlets850. On large tracts of land these villages would form separate open field groups. Although the economic evidence is not within our reach in early times, we have indications of separate village meetings under the manorial court even from the legal point of view taken by the court-rolls. In several instances the entries printed in the second volume of the Selden Society publications point to the action of townships as distinct from the manorial court, and placed under it. In Broughton a man distrained for default puts himself on the verdict of the whole court and of the township of Hurst, both villains and freemen, 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 from the township, which appears subordinated to it, probably because there were other townships in the manor of Hurst. At the same time the township is called upon to act as an independent unit in the matter. Even so in the rolls of Hemingford, 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 corporation851. When township and tithing coincided, as in the case of Brightwaltham, the tithing gets opposed to the general court in the same way852. Altogether the corporate 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 governmental system; the county was such a unit, so was the hundred. So again was the vill, for the township had many police duties to perform; it was an amerciable, punishable unit; not so the manor, unless it coincided with the vill853.' And then he proceeds to suggest that the true explanation of the manor is that it represents an estate which could be and was administered 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 townships, 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 economic 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 communal open fields. Now in a great many cases the estate and the community 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. The open field system appears in this connexion as outside the manor, and proceeding from the rural community by itself.

Let us sum up the results obtained in this chapter.

1. The village communities 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 materially, and reduces him to the position of a constitutional ruler.

2. The original court of the manor was one and the body of its suitors was one. The distinction between courts for free tenants and customary courts grows up very gradually in the fourteenth century, and later.

3. The steward was not the only judge of the halimot. The judgment came from the whole court, and its suitors, without distinction of class, were necessary judicial assessors.

4. The court of ancient demesne presents the same elements as the ordinary halimot, 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 communal practice.

6. The rule which makes the existence of the manor dependent on the existence of free suitors is derived from the conception of the court as a court of free and lawful men, taking in villains and excluding slaves.

7. The manor by itself is the estate; the rural community and the jurisdiction of the soke are generally fused with it into one whole; but in some cases the two latter elements are seen emerging as independent growths from behind the manorial organisation.

CHAPTER VI.

THE MANOR AND THE VILLAGE COMMUNITY

Conclusions

If we look at the village life 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 arrangement 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 supremacy of the state in political matters, which are so characteristic of the present time. And on the other hand there is just as sharp a contrast between the manorial 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 community built upon the basis of equal partnership among free members. It is evident, at the same time, that such differences, deep though they are, cannot be treated as primordial and absolute divisions. All these systems are but stages of development, after all, and the most important problem concerning them is the problem of their origins and mutual relations. The main road towards its solution lies undoubtedly through the demesne of strictly historical investigation. Should we succeed in tracing with clearness the consecutive stages of the process and the intermediate links between them, the most important part of the work will have been done. This is simple 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 since it would merely present a series of arrangements following upon each other in time and not a chain of causes and effects. We cannot exempt ourselves from 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 ultimately what one may call the dynamic thread of the inquiry, there is considerable difficulty 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 phenomena is apt to be, how difficult it is to distinguish between the main forms and the variations which mediate 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 suggested 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 made to supply additional information as to the earlier and imperfectly described ones. It is from this point of view that we must once more survey the ground that we have been exploring in the foregoing pages.

The first general feature that meets our eye is the cultivation 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 fields and intermixed with patches or strips possessed by fellow villagers. Now, both facts are remarkable. 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 holding a bundle of strips lying far apart from each other, more or less dependent because of their narrowness on the dealings of neighbours, who may be untidy and unthrifty? Instead of having one block of soil to look to and a comparatively short boundary to maintain, every occupier has a number of scattered pieces to care for, and neighbours, who not only surround, but actually cut up, dismember, invade his tenement. The open-field system stands in glaring contradiction with the present state of private rights in Western Europe, and no wonder that it has been abolished everywhere, except on some few tracts of land kept back by geographical conditions from joining the movement 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 wants of the lord's estate, that can explain why early agriculture is in the main a culture of open fields and involves a marvellous 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 appropriate to a state of things ruled by communal conceptions. It is difficult to prevent trespasses upon an open plot, but the plot must 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 becomes simple if one considers it as the management of land by an agricultural community which has allotted the places where its members have to work. Rights of common usage, communal apportionment of shares in the arable, communal arrangement of ways and times of cultivation—these are the chief features of open-field husbandry, and all point to one source—the village community. It is not a manorial arrangement, though it may be adapted to the manor. If more proof were needed we have only to notice the fact, that open-field cultivation is in full work in countries where the manor 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 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 individualistic order of things. They belong to a rural community. But even in a community the arrangement adopted seems peculiar. We must not disregard some 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 question may be put: why should an artificial arrangement contrived for the sake of equality start from a flagrant inequality which looks the more 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 among the population, because there is nothing to insure that the differences of growth and requirements arising between different families will keep square with the relations of the holdings. In one case the family plot may become too large, in another too scanty an allowance for the peasant household working and feeding on that plot. And ultimately, 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 system 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 material 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 some degree distorted and warped from its original shape. In this respect the manorial element comes strongly to the fore. The rough scale of holdings would be grossly against justice for purely 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 complain 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 tenements 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 remained 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 main the half plough-land, the virgate, and the oxgang. What else there is can be only regarded as subsidiary to the main arrangement: the cotters and crofters are not tenants in the fields, but gardeners, labourers, craftsmen, herdsmen, and the like. If the country had not been mainly cultivated as ploughland, but had borne vines or olives or crops that required no cumbersome implements, but intense and individualistic 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 expression. 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 make 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 community 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 communal ownership and re-allotment. I should like to compare the whole to the icebound surface of a northern sea: it is not smooth, 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.