Kitabı oku: «Villainage in England: Essays in English Mediaeval History», sayfa 6

Tenant right of free man holding in villainage.

The second conclusion is, that if a free man hold in villainage by villain services he cannot be ejected by the lord against his will, provided he is performing the services due from the holding. What Bracton says here is distinctly implied by the decisions of 1219 and 1220, which subject the lord's power of dealing with the land to a condition—non-performance of services¹¹³. There can be no question as to the importance of such a view; it contains, as it were, the germ of copyhold tenure¹¹⁴. It places villainage substantially on the same footing as freehold, which may also be forfeited by discontinuance of the services, although the procedure for establishing a forfeiture in that case would be a far more elaborate one. And it must be understood that Bracton's deduction by no means rests on the single case before us. He appeals also to a decision of William Raleigh, who granted an assize of mort d'ancestor to a free man holding in villainage¹¹⁵. Unfortunately the original record of this case has been lost. The decision in a case of 1225 goes even further. It is an assize of novel disseisin brought by a certain William the son of Henry against his lord Bartholomew the son of Eustace. The defendant excepts against the plaintiff as his villain; the court finds, on the strength of a verdict, that he is a villain, and still they decide that William may hold the land in dispute, if he consents to perform the services; if not, he forfeits his land¹¹⁶. Undoubtedly the decision before us is quite isolated, and it goes against the rules of procedure in such cases. Once the exception proved, nothing ought to have been said as to the conditions of the tenure. Still the mistake is characteristic of a state of things which had not quite been brought under the well-known hard and fast rule. And the best way to explain it is to suppose that the judges had in their mind the more familiar case of free men holding in villainage, and gave decision in accordance with Martin of Bestenover v. Montacute, and the case decided by Raleigh¹¹⁷. All these instances go clean against the usually accepted doctrine, that holding in villainage is the same as holding at the will of the lord: the celebrated addition 'according to the custom of the manor' would quite fit them. They bring home forcibly one main consideration, that although in the thirteenth century the feudal doctrine of non-interference of the state between lord and servile tenantry was possessed of the field, its victory was by no means complete. Everywhere we come across remnants of a state of things in which one portion at least of the servile class had civil rights as well as duties in regard to the lord.

The test of services.

Matters were even more unsettled as to customs and services in their relation to status and tenure. What services, what customs are incompatible with free status, with free tenure? Is the test to be the kind of services or merely their certainty? Bracton remarks that the payment of merchet, i.e. of a fine for giving away one's daughter to be married, is not in keeping with personal freedom. But he immediately puts in a kind of retractation¹¹⁸, and indeed in the case of Martin of Bestenover it was held that the peasant was free although paying merchet. To tenure, merchet, being a personal payment, should have no relation whatever. In case of doubt as to the character of the tenure, the inquiry ought to have been entirely limited to the question whether rents and services were certain or not¹¹⁹, because it was established that even a free tenement could be encumbered with base services. In reality the earlier practice of the courts was to inquire of what special kind the services and customs were, whether merchet and fine for selling horses and oxen had been paid, whether a man was liable to be tallaged at will or bound to serve as reeve, whether he succeeded to his tenancy by 'junior right' (the so-called Borough English rule), and the like.

All this was held to be servile and characteristic of villainage¹²⁰. I shall have to discuss the question of services and customs again, when I come to the information supplied by manorial documents. It is sufficient for my present purpose to point out that two contradictory views were taken of it during the thirteenth century; 'certain or uncertain?' was the catchword in one case; 'of what kind?' in the other. A good illustration of the unsettled condition of the law is afforded by the case Prior of Ripley v. Thomas Fitz-Adam. According to the Prior, the jurors called to testify as to services and tenures had, while admitting the payment of tallage and merchet, asked leave to take the advice of Robert Lexington, a great authority on the bench, whether a holding encumbered by such customs could be free¹²¹.

The subject is important, not only because its treatment shows to what extent the whole law of social distinctions was still in a state of fermentation, but also because the classification of tenures according to the nature of customs may afford valuable clues to the origin of legal disabilities in economic and political facts. The plain and formal rule of later law, which is undoubtedly quite fitted to test the main issue as to the power of the lord, is represented in earlier times by a congeries of opinions, each of which had its foundation in some matter of fact. We see here a state of things which on the one hand is very likely to invite an artificial simplification, by an application of some one-sided legal conception of serfdom, while on the other hand it seems to have originated in a mixture and confusion of divers classes of serfs and free men, which shaded off into each other by insensible degrees.

The procedure in questions of status.

The procedure in trials touching the question of status was decidedly favourable to liberty. To begin with, only one proof was accepted as conclusive against it—absolute proof that the kinsfolk of the person claimed were villains by descent¹²². The verdict of a jury was not sufficient to settle the question¹²³, and a man who had been refused an assize in consequence of the defendant pleading villainage in bar had the right notwithstanding such decision to sue for his liberty. When the proof by kinship came on, two limitations were imposed on the party maintaining servitude: women were not admitted to stand as links in the proof because of their frailty and of the greater dignity of a man, and one man was not deemed sufficient to establish the servile condition of the person claimed¹²⁴. If the defendant in a plea of niefty, or a plaintiff in an action of liberty, could convincingly show that his father or any not too remote ancestor had come to settle on the lord's land as a stranger, his liberty as a descendant was sufficiently proved¹²⁵. In this way to prove personal villainage one had to prove villainage by birth. Recognition of servile status in a court of record and reference to a deed are quite exceptional.

The coincidence in all these points against the party maintaining servitude is by no means casual; the courts proclaimed their leaning 'in favour of liberty' quite openly, and followed it in many instances besides those just quoted. It was held, for instance, that in defending liberty every means ought to be admitted. The counsel pleading for it sometimes set up two or three pleas against his adversary and declined to narrow his contention, thus transgressing the rules against duplicity of plea 'in favour of liberty¹²⁶.' In the case of a stranger settling on the land, his liberty was always assumed, and the court declined to construe any uncertainty of condition against him¹²⁷. When villainage was pleaded in bar against a person out of the power of the lord, the special question was very often examined by a jury from the place where the person excepted to had been lately resident, and not by a jury from the country where he had been born¹²⁸. This told against the lord, of course, because the jurors might often have very vague notions as to the previous condition of their new fellow-countryman¹²⁹.

It would be impossible to say in what particular cases this partiality of the law is to be taken as a consequence of enlightened and humanitarian views making towards the liberation of the servile class, and in what cases it may be traced to the fact that an original element of freedom had been attracted into the constitution of villainage and was influencing its legal development despite any general theory of a servile character. There is this to be noticed in any case, that most of the limitations we have been speaking of are found in full work at the very time when villainage was treated as slavery in the books. One feature, perhaps the most important of all, is certainly not dependent on any progress of ideas: however complete the lord's power over the serf may have been, it was entirely bound up with the manorial organisation. As soon as the villain had got out of its boundaries he was regularly treated as a free man and protected in the enjoyment of liberty so long as his servile status had not been proved¹³⁰. Such protection was a legal necessity, a necessary complement to the warranty offered by the state to its real free men. There could be no question of allowing the lord to seize on any person whom he thought fit to claim as his serf. And, again, if the political power inherent in the manor gave the lord A great privileges and immunities as to the people living under his sway, this same manorial power began to tell against him as soon as such people had got under the sway of lord B or within the privileged town C. The dependant could be effectually coerced only if he got back to his unfree nest again or through the means of such kinsfolk as he had left in the unfree nest¹³¹. And so the settlement of disputed rights connected with status brings home forcibly two important positions: first the theory of personal subjection is modified in its legal application by influence in favour of liberty; and next this influence is not to be traced exclusively to moral and intellectual progress, but must be accounted for to a great extent by peculiarities in the political structure of feudalism.

Enfranchisement.

One point remains to be investigated in the institution of villainage, namely modes in which a villain might become free. I have had occasion to notice the implied manumission which followed from a donation of land to a bondman and his heirs, which in process of time was extended to all contracts and concords between a lord and his serf. A villain was freed also, as is well known, by remaining for a year and a day on the privileged soil of a crown manor or a chartered town¹³². As to direct manumission, its usual mode was the grant of a charter by which the lord renounced all rights as to the person of his villain. Traces of other and more archaic customs may have survived in certain localities, but, if so, they were quite exceptional. Manumission is one of the few subjects touched by Glanville in the doctrine of villainage, and he is very particular as to its conditions and effects. He says that a serf cannot buy his freedom, because he has no money or goods of his own. His liberty may be bought by a third person however, and his lord may liberate him as to himself, but not as regards third persons. There seems to be a want of clearness in, if not some contradiction between these two last statements, because one does not see how manumission by a stranger could possibly be wider than that effected by the lord. Again, the whole position of a freed man who remains a serf as regards everybody but his lord is very difficult to realize, even if one does not take the later view into account, which is exactly the reverse, namely that a villain is free against everybody but his lord. I may be allowed to start a conjecture which will find some support in a later chapter, when we come to speak about the treatment of freedom and serfdom in manorial documents. It seems to me that Glanville has in mind liberation de facto from certain duties and customs, such as agricultural work for instance, or the payment of merchet. Such liberation would not amount to raising the status of a villain, although it would put him on a very different footing as to his lord¹³³. However this may be, if from Glanville's times we come down to Bracton and to his authorities, we shall find all requirements changed, but distinct traces of the former view still lingering in occasional decisions and practices. There are frequent cases of villains buying their freedom with their own money¹³⁴, but the practice of selling them for manumission to a stranger is mentioned both in Bracton's Treatise¹³⁵ and in his Notebook. A decision of 1226 distinctly repeats Glanville's teaching that a man may liberate his serf as to himself and not as to others. The marginal note in the Note-book very appropriately protests against such a view, which is certainly quite inconsistent with later practice¹³⁶. Such flagrant contradictions between authorities which are separated barely by some sixty or seventy years, and on points of primary importance too, can only tend to strengthen the inference previously drawn from other facts—that the law on the subject was by no means square and settled even by the time of Bracton, but was in every respect in a state of transition.

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.