Kitabı oku: «Villainage in England: Essays in English Mediaeval History», sayfa 16

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 seemingly 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 copyhold 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 attributes 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, important 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.

Foundations of later classification in early law.

The older divisions may not be so definitely drawn and so developed as the later, but they have the advantage of being based on fundamental differences of fact. Even 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 especialté 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 especialté,' while Hengham, J. says: 'prescription de terre est assez bon especialté"' (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 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.

Bracton's doctrine.

I think that all this must follow necessarily as soon as 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 countenance 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 tenement⁵⁵¹. What is more, it cannot belong to a tenement reclaimed from the waste⁵⁵², 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 defence⁵⁵³ is primarily meant, and the common pasture appears from this point of view as one of the stages in the process of common farming. To make up the whole, the right to common is defined by a 'quantum pertinet⁵⁵⁴,' which has a sense only in connexion with the admeasurement of claims effected by the internal organisation of the manor. Such is evidently the normal arrangement presupposed by Bracton's description, and his only fault is, that he does not distinguish with clearness between the consequences 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 pleadings 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 rights acquired by special grant or agreement. Only the freeholders are protected in the enjoyment of their commons; only the freeholders are protected in the enjoyment of their tenements; but their claims are based on arrangements 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 trespassing⁵⁵⁵.' 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 details, the earlier documents give even better clues than the later to the reasons which led to the well-known classification.

Restrictions on the lord as to common pasture.

Common appendant, if we may use the modern term for the sake of brevity, is indissolubly connected with the system of husbandry followed by the village community. A very noticeable feature of it is, that, in one sense, it towers over the lord of the manor as well as over the tenants. Of course, legally the lord is considered as the owner of the waste⁵⁵⁶, 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 tenantry⁵⁵⁷. Again, the lord may not overburden the common, and sometimes freeholders try their hand at litigation against the lord on the ground that he sends his cattle to some place where they ought not to go⁵⁵⁸. 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 cottager⁵⁵⁹. 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.

Approvement.

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 course to proceed from a decision of this community. Such a change may be effected in one of two manners: the customary 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 progress 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 20 Henry III, with the condition that he should leave sufficient pasture to his free tenants according to the requirements 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 commoners, if he left sufficient common to satisfy their rights. Bracton's text in the passage where he treats of the 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 without the consent of his free-tenants⁵⁶⁰. Turning to the practice of the thirteenth-century courts, we find that the lawyers were rather doubtful as to this point. In a case of 1221 the jurors declare, that although the defendant has approved about two acres of land from the waste where the plaintiff had common, this latter has still sufficient pasture left to him. And thereupon the plaintiff withdraws⁵⁶¹. In 1226 a lord who has granted pasture everywhere, '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 absent, 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 Merton⁵⁶². In a case of 1292 one of the counsel for the defendant took it for granted that the Statute of Merton altered the previously existing common law⁵⁶³. The language of the Statutes themselves is certainly in favour of such a construction: in the Merton Constitution it is stated as a fact that the English magnates were prevented from making use of their manors⁵⁶⁴, 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 represent 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 dismissed 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 of the tenants or a few of them, every change in the occupation of the land touches all those who are members of the manorial community. The removal of difficulties 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 community. 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 calculation. 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 community⁵⁶⁵. 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.

Rights of common in woods, etc.

Besides the land regularly used for pasture, the cattle of the village were sent grazing along the roads⁵⁶⁶ and in the woods⁵⁶⁷. 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 regulations, 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 certain customary rules. Every tenant had a right to fell as many young trees as he wanted to keep his house and his hedges in order⁵⁶⁸. 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 equivalent⁵⁶⁹. Whenever the right had to be apportioned more or less strictly, the size of the holdings was always the main consideration⁵⁷⁰.

It would be strange to my purpose to discuss the details of common of estovers, of turbary⁵⁷¹, 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:—

1. Rights of common are either a consequence of the communal husbandry of the manor, or else they proceed from special agreement or long use.

2. The legal arrangement of commons depends on a customary arrangement, in which free and unfree tenants take equal part⁵⁷².

3. The feudal theory of the lord's grant is insufficient to explain the different aspects assumed by rights of common, and especially the opposition between lord and free commoners.

CHAPTER III.
RURAL WORK AND RENTS

Arrangement of work and rent.

Our best means of judging of the daily work in an English village of the thirteenth century is to study the 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 purpose of settling these duties, and the wealth of material they afford enables us to form a judgment as to several interesting 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 ramifications 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.

Operations:

Ploughing.

Let us begin by a survey of the different kinds of labour duties performed by the dependent holdings which 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 himself, 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 villae⁵⁷³.' The duties 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 proportions in which they will have to co-operate for the performance of the duty⁵⁷⁴. 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 week⁵⁷⁵. 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 lord⁵⁷⁶. A fourth, to lay on the imposition in one lump by requiring a certain number of acres to be tilled, or a certain number of days of ploughing⁵⁷⁷. It must be added, that the peasants have often to supplement their ploughing work by harrowing, according to one of these various systems of apportionment⁵⁷⁸.

The duties here described present only a variation of the common 'week-work' of the peasant, its application to a certain kind of labour. They could on occasion be replaced by some other work⁵⁷⁹, or the lord might lose them if the time assigned for them was quite unsuitable for work⁵⁸⁰. There is another form of ploughing called gafol-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 peasantry⁵⁸¹.

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 pasturage⁵⁸². Sometimes the same imposition is levied when more cattle are sent to the commons than a holding has a right to drive on them⁵⁸³. It is not impossible that in some cases the very use of rights of common was made dependent on the performance of such duties⁵⁸⁴. A kindred exaction was imposed for the use of the meadows⁵⁸⁵. 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 ploughings described before⁵⁸⁶. 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 and asked-work, we find much rougher terms in the speech of some districts—it is deemed unlawenearth and godlesebene⁵⁸⁷. 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. Lentenearth⁵⁸⁸, in the manors of Ely Minster, means evidently an extra ploughing in Lent. The same Ely records exhibit a ploughing called Filstnerthe or Filsingerthe⁵⁸⁹, which may be identical with the Lentenearth just mentioned: a fastnyngseed⁵⁹⁰ occurs at any rate which seems connected with the ploughing under discussion. The same extra work in Lent is called Tywe⁵⁹¹ in the Custumal of Bleadon, Somersetshire. When the ploughing-work is paid for it may receive the name of penyearth⁵⁹². The Gloucester survey speaks of the extra cultivation of an acre called Radacre, and the Ely surveys of an extra rood 'de Rytnesse⁵⁹³.' I do not venture to suggest an explanation for these last terms; and I need not say that it would be easy to collect a much greater number of such terms in local use from the manorial records. It is sufficient for my purpose to mark the chief distinctions.

Reaping.

All the other labour-services are performed more or less on the same system as the ploughings, with the fundamental 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 dimensions are made the basis of calculation, sometimes the number of work-days which have to be employed in order to cut the grass⁵⁹⁴. As to the corn-harvest, every holding has its number of acres assigned to it⁵⁹⁵, or else it is enacted that every house has to send so many workmen during a certain number of days⁵⁹⁶. 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 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 of precariae is even more developed on these occasions than in the case of ploughing⁵⁹⁷. All the forces of the village are strained to go through the task; all the houses which open on the street send their labourers⁵⁹⁸, and in most cases the entire population has to join in the work, with the exception of the housewives and perhaps of the marriageable daughters⁵⁹⁹. The landlord treats the harvesters to food in order to make these exertions somewhat more palatable to them⁶⁰⁰. 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 minutely⁶⁰¹; the latter may have to mow a particular acre with the object of saying 'thanks' for some concession on the part of the lord⁶⁰². 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 hands⁶⁰³. On the other hand, a poor woman holds a messuage, and need do no more than carry water to the mowers⁶⁰⁴.

Carriage duties.

A very important item in the work necessary for medieval 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 accordingly⁶⁰⁵. These averagia are laid out for short and long distances, and the peasants have to take their turn at them one after the other⁶⁰⁶. They were bound to carry corn to London or Bristol according to the size of their holdings⁶⁰⁷. Special importance was attached to the carriage of the 'farm,' that is of the products designed for the consumption of the lord⁶⁰⁸. 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 kitchen⁶⁰⁹. 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 implements⁶¹⁰. And alongside of the duties of carriage by horses or oxen we find the corresponding manual duty. The 'averagium super dorsum suum' falls on the small tenant who does not own either horses or oxen⁶¹¹. Such small people are also made to drive the swine or geese to the market⁶¹². The lord and his chief stewards must look sharp after the distribution 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 purpose⁶¹³.

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 sheep⁶¹⁴, 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 permission granted to them⁶¹⁵. 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 manor⁶¹⁶. 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 summonses and orders, to serve at the courts of the superior lord and of the king⁶¹⁷.

Classification of labour-services.

In consequence of the great variety of these labour-services they had to be reduced to some chief and plain subdivisions for purposes of a general oversight. Three main classes are very noticeable notwithstanding all variety: the araturae, averagia, and manuoperationes. These last are also called hand-dainae or daywerke⁶¹⁸; and the records give sometimes the exact valuation of the work to be performed during a day in every kind of labour. Sometimes 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, Canterbury⁶¹⁹, for instance, we find at Borle '1480 work-days divided into 44 weeks of labour from the virgaters, 88 from the cotters, 320 from the tofters holding small tenements in the fields.' In Bockyng the work-days of 52 weeks are reckoned to be 3222. It must be added, that when such a general summing up appears, it is mostly to be taken as an indication 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 sometimes 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.