Villainage in England: Essays in English Mediaeval History

CHAPTER III.

ANCIENT DEMESNE

Definition.

The old law books mention one kind of villainage which stands out in marked contrast with the other species of servile tenure. The peasants belonging to manors which were vested in the crown at the time of the Conquest follow a law of their own. Barring certain exceptions, of which more will be said presently, they enjoy a certainty of condition protected by law. They are personally free, and although holding in villainage, nobody has the right to deprive them of their lands, or to alter the condition of the tenure, by increasing or changing the services. Bracton calls their condition one of privileged villainage, because their services are base but certain, and because they are protected not by the usual remedies supplied at common law to free tenants, but by peculiar writs which enforce the custom of the manor137. 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 Conquest138. This includes manors which had been given away subsequently, and excludes such as had lapsed to the king after the Conquest by escheat or forfeiture139. Possessions granted away by Saxon kings before the Conquest are equally excluded140. In order to ascertain what these manors were the courts reverted to the Domesday description of Terra Regis. As a rule these lands were entered as crown lands, T.R.E. and T.R.W., that is, were considered to have been in the hand of King Edward in 1066, and in the hand of King William in 1086. But strictly and legally they were crown lands at the moment when King William's claim inured, or to use the contemporary phrase, 'on the day when King Edward was alive and dead.' The important point evidently was that the Norman king's right in this case bridged over the Conquest, and for this reason such possessions are often simply said to have been royal demesne in the time of Edward the Confessor. This legal view is well illustrated by a decision of the King's Council, quoted by Belknap, Chief Justice of the Common Pleas, in 1375. It was held that the manor of Tottenham, although granted by William the Conqueror to the Earl of Chester before the compilation of Domesday, was ancient demesne, as having been in the hands both of St. Edward and of the Conqueror141. And so 1066 and not 1086 is the decisive year for the legal formation of this class of manors142.

Tenure in ancient demesne a kind of villainage.

In many respects the position of the peasantry in ancient demesne is nearly allied to that of men holding in villainage at common law. They perform all kinds of agricultural services and are subject to duties quite analogous to those which prevail in other places; we may find on these ancient manors almost all the incidents of servile custom. Sometimes very harsh forms of distress are used against the tenants143; 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 cases144. We often come across such base customs as the payment of merchet in connexion with the 'villain socmen' of ancient demesne145. 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.

Privileges of ancient demesne.

The side of privilege is not less conspicuous. The indications given by the law books must be largely supplemented from plea rolls and charters. The special favour shown to the population on soil of ancient demesne extends much further than a regulation of manorial duties would imply, it resolves itself to a large extent into an exemption from public burdens. The king's manor is treated as a franchise isolated from the surrounding hundred and shire, its tenants are not bound to attend the county court or the hundred moot146, they are not assessed with the rest for danegeld or common amercements or the murder fine147, they are exempted from the jurisdiction of the sheriff148, and do not serve on juries and assizes before the king's justices149; they are free from toll in all markets and custom-houses150. Last, but not least, they do not get taxed with the country at large, and for this reason they have originally no representatives in parliament when parliament forms itself. On the other hand, they are liable to be tallaged by the king without consent of parliament, by virtue of his private right as opposed to his political right151. This last privilege gave rise to a very abnormal state of things, when ancient demesne land had passed from the crown to a subject. The rule was, that the new lord could not tallage his tenants unless in consequence of a royal writ, and then only at the same time and in the same proportion as the king tallaged the demesnes remaining in his hand152. 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 county153, 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 hand154. But the general rule up to the fourteenth century was undoubtedly to relinquish the proceeds to the holder of the manor. Such treatment is eminently characteristic of the conception which lies at the bottom of the whole institution of ancient demesne. It is undoubtedly based on the private privilege of royalty. All the numerous exceptions and exemptions from public liabilities and duties flow from one source: the king does not want his land and his men to be subjected to any vexatious burdens which would lessen their power of yielding income155. Once fenced in by royal privilege, the ancient demesne manor keeps up its private immunity, even though it ceases to be royal. And this is the second fact, with which one has to reckon. If the privileged villainage of ancient demesne is founded on the same causes as villainage pure and simple, the distinguishing element of 'privilege' is supplied to it by the private interest of the king. This seems obvious enough, but it must be insisted upon, because it guards against any construction which would pick out one particular set of rights, or one particular kind of relations as characteristic of the institution. Legal practice and later theory concerned themselves mostly with peculiarities of procedure, and with the eventuality of a subject owning the manor. But the peculiar modes of litigation appropriate to the ancient demesne must not be disconnected from other immunities, and the ownership of a private lord is to be considered only as engrafted on the original right of the king. With this preliminary caution, we may proceed to an examination of those features which are undoubtedly entitled to attract most attention, namely, the special procedure which is put in action when questions arise in any way connected with the soil of ancient demesne.

Parvum breve de recto.

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 sheriff156.

It does not concern freehold estate, but only land of base though privileged tenure. An action for freehold also may be begun in a manorial court, but in that case the writ will be 'the writ of right patent' and not 'the little writ of right close157.'

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 villainage158. 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 assize159 in land to ancient demesne, peculiarities which, however, are not universally found160, and which, even if they were universally found, would stand as consequence and not as cause. This may be accounted for by the observation that the legal protection bestowed on this particular class of holdings, notwithstanding its limitations, actually imparted to them something of the nature of freehold, and led to a great confusion of attributes and principles. Indeed, the difficulty of keeping within the lines of privileged 'villainage' is clearly illustrated by the fact that the 'little writ,' with all its restrictions, and quite apart from any contention with the lord, recognises the tenant in ancient demesne as capable of independent action.

Villains, or men holding in villainage, have no writ, either manorial or extra-manorial, for the protection or recovery of their holdings, and the existence of such an action for villain socmen is in itself a limitation of the power of lord and steward, even when they are no parties to the case. And so the distinction between freehold and ancient demesne villainage is narrowed to a distinction of jurisdiction and procedure. This is so much the case that if, by a mere slip as it were, a tenement in ancient demesne has been once recovered by an assize of novel disseisin, the exclusive use of the 'little writ' is broken, and assizes will ever lie hereafter, that is, the tenement can be sued for as 'freehold' in common law courts161. Surely this could happen only because the tenure in ancient demesne, although a kind of villainage, closely resembled freehold.

The 'little writ' in manors alienated from the Crown.

One has primarily to look for an explanation of these great privileges to manors, which had been granted by the king to private lords. On such lands the 'little writ' lay both when 'villain socmen' were pleading against each other162, and when a socman was opposed to his lord as a plaintiff163. This last eventuality is, of course, the most striking and important one. There were some disputes and some mistakes in practice as to the operation of the rule. The judges were much exercised over the question whether an action was to be allowed against the lord in the king's court. The difficulty was, that the contending parties had different estates in the land, the one being possessed of the customary tenancy in ancient demesne, and the other of the frank fee. There are authoritative fourteenth-century decisions to the effect that, in such an action, the tenant had the option between going to the court at Westminster or to the ancient demesne jurisdiction164.

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 court165. And as I said, one looks naturally to such instances of egregious independence, in order to explain the affinity between privileged villainage and freehold. The explanation would be insufficient, however, and this for two simple reasons. The passage of the manor into the hands of a subject only modifies the institution of ancient demesne, but does not constitute it; the 'little writ of right' is by no means framed to suit the exceptional case of a contention between lord and tenant; its object is also to protect the tenants against each other in a way which is out of the question where ordinary villainage is concerned. The two reasons converge, as it were, in the fact that the 'little writ of right' is suable in all ancient demesne manors without exception, that it applies quite as much to those which remain in the crown as to those which have been alienated from it166. And this leads us to a very important deduction. If the affinity of privileged villainage and freehold is connected with the 'little writ of right' as such, and not merely with a particular application of it, if the little writ of right is framed for all the manors of ancient demesne alike, the affinity of privileged villainage and freehold is to be traced to the general condition of the king's manors in ancient demesne167.

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 dower168 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 arrangements169.

Procedure of revision.

Actions as to personal estate could be pleaded without writ, and as for the crown pleas they were reserved to the high courts170. But even in actions regarding the soil a removal to these latter was not excluded171. Evocation to a higher court followed naturally if the manorial court refused justice and such removal made the land frank fee172. 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 higher173. Instances of examination and revision are frequent in our records174. The examination of the proceedings by the justices was by no means an easy matter, because they were constantly confronted by appeals to the custom of the manor and counter appeals to the principles of the common law of England. It was very difficult to adjust these conflicting elements with nicety. As to the point of fact, whether an alleged custom was really in usage or not, the justices had a good standing ground for decision. They asked, as a rule, whether precedents could be adduced and proved as to the usage175; they allowed a great latitude for the peculiarities of customary law; but the difficulty was that a line had to be drawn somewhere176. This procedure of revision on the whole is quite as important a manifestation of the freehold qualities of privileged villainage as pleading by writ. Men holding in pure villainage also had a manorial court to go to and to plead in, but its judicial organisation proceeded entirely from the will and power of the lord, and it ended where his will and power ended; there was no higher court and no revision for such men. The writ of false judgment in respect of tenements in ancient demesne shows conclusively that the peculiar procedure provided for the privileged villains was only an instance and a variation of the general law of the land, maintaining actionable rights of free persons. And be it again noted, that there was no sort of difference as to revision between those manors which were in the actual possession of the crown and those which were out of it177. Revision and reversal were provided not as a complement to the legal protection of the tenant against the lord, but as a consequence of that independent position of the tenant as a person who has rights against all men which is manifested in the parvum breve178. It is not without interest to notice in this connexion that the parvum breve is sometimes introduced in the law books, not as a restriction put upon the tenant, nor as the outcome of villainage, but as a boon which provides the tenant with a plain form of procedure close at hand instead of the costly and intricate process before the justices179.

Breve de 'Monstraverunt'.

If protection against the lord had been the only object of the procedure in cases of ancient demesne, one does not see why there should be a 'little writ' at all, as there was a remedy against the lord's encroachments in the writ of 'Monstraverunt,'180 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 customs181. 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 tenants182. 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 writ183. These exceptional features were evidently meant to facilitate the action of humble people against a powerful magnate184. But it seems to me that the deviation from the rules governing writs at common law is to be explained not only by the general aim of the writ, but also by its origin.

Petition.

In form it was simply an injunction on a plaint. When for some reason right could not be obtained by the means afforded by the common law, the injured party had to apply to the king by petition. One of the most common cases was when redress was sought for some act of the king himself or of his officers, when the consequent injunction to the common law courts or to the Exchequer to examine the case invariably began with the identical formula which gave its name to the writ by which privileged villains complained of an increase of services; monstravit or monstraverunt N.N.; ex parte N.N. ostensum est:—these are the opening words of the king's injunctions consequent upon the humble remonstrations of his aggrieved subjects185. Again, we find that the application for the writ by privileged villains is actually described as a plaint186. In some cases it would be difficult to tell on the face of the initiatory document, whether we have to do with a 'breve de monstraverunt' to coerce the manorial lord, or with an extraordinary measure taken by the king with a view to settling his own interests187.

The 'Monstraverunt' on the king's own land.

And this brings me to the main point. Although the writ under discussion seems at first sight to meet the requirement of the special case of manors alienated from the crown, on closer inspection it turns out to be a variation of the peculiar process employed to insist upon a right against the crown. Parallel to the 'Monstraverunt' against a lord in the Common Pleas we have the 'Monstraverunt' against the king's bailiff in the Exchequer. The following mandate for instance is enrolled in the eventful year 1265: 'Monstraverunt Regi homines castri sui de Brambur et Schotone quod Henricus Spring constabularius castri de Brambur injuste distringit eos ad faciendum alia servicia et alias consuetudines quam facere consueverunt temporibus predecessorum Regis et tempore suo. Ideo mandatum est vicecomiti quod venire etc. predictum Henricum a die Pasche in xv dies ad respondendum Regi et predictis hominibus de predicta terra et breve etc.'188 There is not much to choose between this and the enrolment of a 'breve de monstraverunt' in the usual sense beyond the fact that it is entered on a Roll of Exchequer Memoranda. In 1292 a mandate of King Edward I to the Barons of the Exchequer is entered in behalf of the men of Costeseye in Norfolk who complained of divers grievances against Athelwald of Crea, the bailiff of the manor. The petition itself is enrolled also, and it sets forth, that whereas the poor men of the king of the base tenure in the manor of Costeseye held by certain usages, from a time of which memory runs no higher, as well under the counts of Brittany as under the kings to whom the manor was forfeited, now bailiff Athelwald distrains them to do other services which ought to be performed by pure villains. They could sell and lease their lands in the fields at pleasure, and he seizes lands which have been sold in this way and amerces them for selling; besides this he makes them serve as reeves and collectors, and the bailiff of the late Queen Eleanor tallaged them from year to year to pay twenty marks, which they were not bound to do, because they are no villains to be tallaged high and low189. Such is the substance of this remarkable document, to which I shall have to refer again in other connexions. What I wish to establish now is, that we have on the king's own possessions the exact counterpart of the 'breve de monstraverunt.' The instances adduced are perhaps the more characteristic because the petitioners had not even the strict privilege of ancient demesne to lean upon, as one of the cases comes from Northumberland, which is not mentioned in Domesday, and the other concerns tenants of the honour of Richmond.

There can be no doubt that the tenantry on the ancient demesne had even better reasons for appealing to immemorial usage, and certainly they knew how to urge their grievances. We may take as an instance the notice of a trial consequent upon a complaint of the men of Bray against the Constable of Windsor. Bray was ancient demesne and the king's tenants complained that they were distrained to do other services than they were used to do. The judgment was in their favour190.

The chief point is that the writ of 'Monstraverunt' appears to be connected with petitions to the king against the exactions of his officers, and may be said in its origin to be applicable as much to the actual possessions of the crown as to those which had been granted away from it. This explains a very remarkable omission in our best authorities. Although the writ played such an important part in the law of ancient demesne, and was so peculiar in its form and substance, neither Bracton nor his followers mention it directly. They set down 'the little writ of right close' as the only writ available for the villain socmen. As the protection in point of services is nevertheless distinctly affirmed by those writers, and as the 'Monstraverunt' appears in full working order in the time of Henry III and even of John191, the obvious explanation seems to be that Bracton regarded the case as one not of writ but of petition, a matter, we might say, rather for royal equity than for strict law. Thus both the two modes of procedure which are distinctive of the ancient demesne, namely the 'parvum breve' and the 'Monstraverunt,' though they attain their full development on the manors that have been alienated, seem really to originate on manors which are in the actual possession of the crown.

Alienation of Royal Manors.

If we now examine the conditions under which the manors of the ancient demesne were alienated by the crown, we shall at once see that no very definite line could be drawn between those which had been given away and those which remained in the king's hand. The one class gradually shades off into the other. A very good example is afforded by the history of Stoneleigh Abbey. In 1154 King Henry II gave the Cistercian monks of Radmore in Staffordshire his manor of Stoneleigh in exchange for their possessions in Radmore. The charter as given in the Register of the Abbey seems to amount to a complete grant of the land and of the jurisdiction. Nevertheless, we find Henry II drawing all kinds of perquisites from the place all through his reign, and it is specially noticed that his writs were directed not to the Abbot or the Abbot's bailiffs, but to his own bailiffs in Stoneleigh192. In order to get rid of the inconveniences consequent upon such mixed ownership, Abbot William of Tyso bought a charter from King John, granting to the Abbey all the soke of Stoneleigh193. But all the same the royal rights did not yet disappear. There were tenants connected with the place who were immediately dependent on the king194, and his bailiff continued to exercise functions by the side of, and in conjunction with, the officers of the Abbot195. In the 50th year of Henry III a remarkable case occurred:—a certain Alexander of Canle was tried for usurping the rights of the Abbot as to the tenantry in the hamlet of Canle, and it came out that one of his ancestors had succeeded in improving his position of collector of the revenue into the position of an owner of the rents. Although the rights which were vindicated against him were the rights of the Abbot, still the king entered into possession and afterwards transferred the possession to the Abbot196. 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-lordship197.