Villainage in England:

Essays in English Mediaeval History

(1892)

Paul Vinogradoff

First Essay — The Peasantry of the Feudal Age.

Chapter One — The Legal Aspect of Villainage. General Conceptions

It has become a commonplace to oppose medieval serfdom to ancient slavery, one implying dependence on the lord of the soil and attachment to the glebe, the other being based on complete subjection to an owner. There is no doubt that great landmarks in the course of social development are set by the three modes hitherto employed of organising human labour: using the working man (1) as a chattel at will, (2) as a subordinate whose duties are fixed by custom, (3) as a free agent bound by contract. These landmarks probably indicate molecular changes in the structure of society scarcely less important than those political and intellectual revolutions which are usually taken as the turning-points of ancient, medieval, and modern history.

And still we must not forget, in drawing such definitions, that we reach them only by looking at things from such a height that all lesser inequalities and accidental features of the soil are no longer sensible to the eyesight. In finding one's way over the land one must needs go over these very inequalities and take into account these very features. If, from a general survey of medieval servitude, we turn to the actual condition of the English peasantry, say in the thirteenth century, the first fact we have to meet will stand in very marked contrast to our general proposition.

The majority of the peasants are villains, and the legal conception of villainage has its roots not in the connexion of the villain with the soil, but in his personal dependence on the lord.

If this is a fact, it is a most important one. It would be reckless to treat it as a product of mere legal pedantry.* The great work achieved by the English lawyers of the twelfth and thirteenth centuries was prompted by a spirit which had nothing to do with pedantry. They were fashioning state and society, proudly conscious of high aims and power, enlightened by the scholastic training of their day, but sufficiently strong to use it for their own purposes; sound enough not to indulge in mere abstractions, and firm enough not to surrender to mere technicalities.* In the treatment of questions of status and tenure by the lawyers of Henry II, Henry III, and Edward I, we must recognise a mighty influence which was brought to bear on the actual condition of things, and our records show us on every page that this treatment was by no means a matter of mere theory. Indeed one of the best means that we have for estimating the social process of those times is afforded by the formation and the break up of legal notions in their cross influences with surrounding political and economic facts.

As to the general aspect of villainage in the legal theory of English feudalism there can be no doubt. The 'Dialogus de Scaccario' gives it in a few words: the lords are owners not only of the chattels but of the bodies of their ascripticii, they may transfer them wherever they please, 'and sell or otherwise alienate them if they like.'* Glanville and Bracton, Fleta and Britton* follow in substance the same doctrine, although they use different terms. They appropriate the Roman view that there is no difference of quality between serfs and serfs: all are in the same abject state. Legal theory keeps a very firm grasp of the distinction between status and tenure, between a villain and a free man holding in villainage, but it does not admit of any distinction of status among serfs: servus, villanus, and nativus are equivalent terms as to personal condition, although this last is primarily meant to indicate something else besides condition, namely, the fact that a person has come to it by birth.* The close connexion between the terms is well illustrated by the early use of nativa, nieve, 'as a feminine to villanus.'

These notions are by no means abstractions bereft of practical import. Quite in keeping with them, manorial lords could remove peasants from their holdings at their will and pleasure. An appeal to the courts was of no avail: the lord in reply had only to oppose his right over the plaintiff's person, and to refuse to go into the subject-matter of the case.* Nor could the villain have any help as to the amount and the nature of his services;* the King's Courts will not examine any complaint in this respect, and may sometimes go so far as to explain that it is no business of theirs to interfere between the lord and his man.* In fact any attempt on the part of the dependant to assert civil rights as to his master will be met and defeated by the 'exceptio villenagii.'* The state refuses to regulate the position of this class on the land, and therefore there can be no question about any legal 'ascription' to the soil. Even as to his person, the villain was liable to be punished and put into prison by the lord, if the punishment inflicted did not amount to loss of life or injury to his body. The extant Plea Rolls and other judicial records are full of allusions to all these rights of the lord and disabilities of the villain, and it must be taken into account that only an infinitely small part of the actual cases can have left any trace in such records, as it was almost hopeless to bring them to the notice of the Royal Courts.

*It is not strange that in view of such disabilities Bracton thought himself entitled to assume equality of condition between the English villain and the Roman slave, and to use the terms servus, villanus, and nativus indiscriminately. The characteristics of slavery are copied by him from Azo's commentary on the institutes, as material for a description of the English bondmen, and he distinguishes them carefully even from the Roman adscripticii or coloni of base condition. The villains are protected in some measure against their lord in criminal law; they cannot be slain or maimed at pleasure; but such protection is also afforded to slaves in the later law of the Empire, and in fact it is based in Bracton on the text of the Institutes given by Azo, which in its turn is simply a summary of enactments made by Hadrian and Antonine. The minor law books of the thirteenth century follow Bracton in this identification of villainage with slavery. Although this identification could not but exercise a decisive influence on the theory of the subject, it must be borne in mind that it did not originate in a wanton attempt to bring together in the books dissimilar facts from dissimilar ages. On the contrary, it came into the books because practice had paved the way for it. Bracton was enabled to state it because he did not see much difference between the definitions of Azo and the principles of Common Law, as they had been established by his masters Martin of Pateshull and William Raleigh. He was wrong, as will be shown by-and-by, but certainly he had facts to lean upon, and his theory cannot be dismissed on the ground of his having simply copied it from a foreigner's treatise.

Most modern writers on the subject have laid stress upon a difference between villains regardant and villains in gross, said to be found in the law books.* It has been taken to denote two degrees of servitude -- the predial dependence of a colonus and the personal dependence of a true slave. The villain regardant was (it is said) a villain who laboured under disabilities in relation to his lord only, the villain in gross possessed none of the qualities of a freeman. One sub-division would illustrate the debasement of freemen who had lost their own land, while the other would present the survival of ancient slavery.

In opposition to these notions I cannot help thinking that Hallam was quite right in saying: 'In the condition of these (villains regardant and villains in gross), whatever has been said by some writers, I can find no manner of difference; the distinction was merely technical, and affected only the mode of pleading. The term in gross is appropriated in our legal language to property held absolutely and without reference to any other. Thus it is applied to rights of advowson or of common, when possessed simply, and not as incident to any particular lands. And there can be no doubt that it was used in the same sense for the possession of a villein.' (Middle Ages, iii. 173; cf. note XIV.) Hallam's statement did not carry conviction with it however, and as the question is of considerable importance in itself and its discussion will incidentally help to bring out one of the chief points about villainage, I may be allowed to go into it at some length.

Matters would be greatly simplified if the distinction could really be traced through the authorities. In point of fact it turns out to be a late one. We may start from Coke in tracing back its history. His commentary upon Littleton certainly has a passage which shows that he came across opinions implying a difference of status between villains regardant and villains in gross. He speaks of the right of the villain to pursue every kind of action against every person except his lord, and adds: 'there is no diversity herein, whether he be a villain regardant or in gross, although some have said to the contrary,* (Co. Lit. 123 b). Littleton himself treats of the terms in several sections, and it is clear that he never takes them to indicate status or define variation of condition. As has been pointed out by Hallam, he uses them only in connexion with a diversity in title, and a consequent diversity in the mode of pleading. If the lord has a deed or a recorded confession to prove a man's bondage, he may implead him as his villain in gross; if the lord has to rely upon prescription, he has to point out the manor to which the party and his ancestors have been regardant, have belonged, time out of mind.* As it is a question of title and not of condition, Littleton currently uses the mere 'villain' without any qualification, whereas such a qualification could not be dispensed with, if there had been really two different classes of villains. Last but not least, any thought of a diversity of condition is precluded by the fact, that Littleton assumes the transfer from one sub-division to the other to depend entirely on the free will of the lord (sections 175, 181, 182, 185). But still, although even Littleton does not countenance the classification I am now analysing, it seems to me that some of his remarks may have given origin to the prevalent misconception on the subject.

Let us take up the Year Books, which, even in their present state, afford such an inestimable source of information for the history of legal conceptions in the fourteenth and fifteenth centuries. An examination of the reports in the age of the Edwards will show at once that the terms regardant and in gross are used, or rather come into use, in the fourteenth century as definitions of the mode of pleading in particular cases. They are suggested by difference in title, but they do not coincide with it, and any attempt to make them coincide must certainly lead to misapprehension. I mean this the term 'villain regardant' applied to a man does not imply that the person in question has any status superior to that of the 'villain in gross,' and it does not imply that the lord has acquired a title to him by some particular mode of acquisition, e.g. by prescription as contrasted with grant or confession; it simply implies that for the purpose of the matter then in hand, for the purpose of the case that is then being argued, the lord is asserting and hoping to prove a title to the villain by relying on a title to a manor with which the villain is or has been connected-title it must be remembered is one thing, proof of title is another. As the contrast is based on pleading and not on title, one and the same person may be taken and described in one case as a villain regardant to a manor, and in another as a villain in gross. And now for the proof.

The expression 'regardant' never occurs in the pleadings at all, but 'regardant to a manor' is used often. From Edward III's time it is used quite as a matter of course in the formula of the 'exceptio' or special plea of villainage.* That is, if the defendant pleaded in bar of an action that the plaintiff was his bondman he generally said, I am not bound to answer A, because he is my villain and I am seised of him as of my villain as regardant to my manor of C. Of course there are other cases when the term is employed, but the plea in bar is by far the most common one and may stand for a test. This manner of pleading is only coming gradually into use in the fourteenth century, and we actually see how it is taking shape and spreading. As a rule the Year Books of Edward I's time have not got it. The defendant puts in his plea unqualified. 'He ought not to be answered because he is our villain' (Y.B. 21/22 Edward I, p. 166, ed. Horwood). There is a case in 1313 when a preliminary skirmish between the counsel on either side took place as to the sufficiency of the defendant's plea in bar, the plaintiff contending that it was not precise enough. Here, if any where, we should expect the term 'regardant,' but it is not forthcoming1. What is more, and what ought to have prevented any mistake, the official records of trials on the Plea Rolls up to Edward II always use the plain assertion, 'villanus... et tenet in villenagio.'* The practice of naming the manor to which a villain belonged begins however to come in during the reign of Edward II, and the terminology is by no means settled at the outset; expressions are often used as equivalent to 'regardant' which could hardly have misled later antiquaries as to the meaning of the qualification.* In a case of 1322, for instance, we have 'within the manor' where we should expect to find 'regardant to the manor.'* This would be very nearly equivalent to the Latin formula adopted by the Plea Rolls, which is simply ut de manerio.* Every now and then cases occur which gradually settle the terminology, because the weight of legal argumentation in them is made to turn on the fact that a particular person was connected with a particular manor and not with another. A case from 1317 is well in point. B.P. the defendant excepts against the plaintiff T.A. on the ground of villainage (qil est nostre vileyn, and nothing else). The plaintiff replies that he was enfranchised by being suffered to plead in an assize of mort d'ancestor against B.P.'s grandmother. By this the defendant's counsel is driven to maintain that his client's right against T.A. descended not from his grandmother but from his grandfather, who was seised of the manor of H. to which T.A. belonged as a villain.* The connexion with the manor is adduced to show from what quarter the right to the villain had descended, and, of course, implies nothing as to any peculiarity of this villain's status, or as to the kind of title, the mode of acquiring rights, upon which the lord relies -- it was ground common to both parties that if the lord had any rights at all he acquired them by inheritance.

Another case seems even more interesting. It dates from 1355, that is from a time when the usual terminology had already become fixed. It arose under that celebrated Statute of Labourers which played such a prominent part in the social history of the fourteenth century. One of the difficulties in working the statute came from the fact that it had to recognise two different sets of relations between the employer and the workman. The statute dealt with the contract between master and servant, but it did not do away with the dependence of the villain on the lord, and in case of conflict it gave precedence to this latter claim; a lord had the right to withdraw his villain from a stranger's service. Such cross influences could not but occasion a great deal of confusion, and our case gives a good instance of it. Thomas Barentyn has reclaimed Ralph Crips from the service of the Prior of the Hospitalers, and the employer sues in consequence both his former servant and Barentyn. This last answers, that the servant in question is his villain regardant to the manor of C. The plaintiffs counsel maintains that he could not have been regardant to the manor, as he was going about at large at his free will and as a free man; for this reason A. the former owner of the manor was never seised of him, and not being seised could not transfer the seisin to the present owner, although he transferred the manor. For the defendant it is pleaded, that going about freely is no enfranchisement, that by the gift of the manor every right connected with the manor was also conferred and that consequently the new lord could at any moment lay hands on his man, as the former lord could have done in his time. Ultimately the plaintiff offers to join issue on the question, whether the servant had been a villain regardant to the manor of C. or not. The defendant asserts, rather late in the day, that even if the person in question was not a villain regardant to the manor of C. the mere fact of his being a villain in gross would entitle his lord to call him away. This attempt to start on a new line is not allowed by the Court because the claim had originally been traversed on the ground of the connexion with the manor.

The peculiarity of the case is that a third person has an interest to prove that the man claimed as villain had been as a free man. Usually there were but two parties in the contest about status; the lord pulling one way and the person claimed pulling the other way, but, through the influence of the Statute of Labourers, in our case lord and labourer were at one against a third party, the labourer's employer. The acknowledgment of villainage by the servant did not settle the question, because, though binding for the future, it was not sufficient to show that villainage had existed in the past, that is at the time when the contract of hire and service was broken through the interference of the lord. Everything depended on the settlement of one question was the lord seised at the time, or not? Both parties agree that the lord was not actually seised of the person, both agree that he was seised of the manor, and both suppose that if the person had as a matter of fact been attached to the manor it would have amounted to a seisin of the person. And so the contention is shifted to this point: can a man be claimed through the medium of a manor, if he has not been actually living, working and serving in it? The court assumes the possibility, and so the parties appeal to the country to decide whether in point of fact Ralph Crips the shepherd had been in legal if not in actual connexion with the manor, i.e. could be traced to it personally or through his relatives.

The case is interesting in many ways. It shows that the same man could be according to the point of view considered both as a villain in regard to a manor, and as a villain in gross. The relative character of the classification is thus illustrated as well as its importance for practical purposes. The transmission of a manor is taken to include the persons engaged in the cultivation of its soil, and even those whose ancestors have been engaged in such cultivation, and who have no special plea for severing the connexion.

As to the outcome of the whole inquiry, we may, it seems to me, safely establish the following points: 1. The terms 'regardant' and 'in gross' have nothing to do with a legal distinction of status. 2. They come up in connexion with the modes of proof and pleading during the fourteenth century. 3. They may apply to the same person from different points of view. 4. 'Villain in gross' means a villain without further qualification; 'villain regardant to a manor' means villain by reference to a manor. 5. The connexion with a manor, though only a matter of fact and not binding the lord in any way, might yet be legally serviceable to him, as a means of establishing and proving his rights over the person he claimed.

I need hardly mention, after what has been said, that there is no such thing as this distinction in the thirteenth century law books. I must not omit, however, to refer to one expression which may be taken to stand in the place of the later 'villain regardant to a manor.' Britton (ii, 55) gives the formula of the special plea of villain ge to the assize of mort d'ancestor in the following words. 'Ou il poie dire qe il est soen vileyn et soen astrier et demourrant en son villenage.' There can be no doubt that residence on the lord's land is meant, and the term astrier leads even further, it implies residence at a particular hearth or in a particular house. Fleta gives the assize of novel disseisin to those who have been a long time away from their villain hearth* ('extra astrum suum villanum,' p, 217). If the term 'astrier' were restricted to villains it would have proved a great deal more than the 'villain regardant' usually relied upon. But it is of very wide application. Britton uses it of free men entitled to rights of common by reason of tenements they hold in a township (i, 392). Bracton speaks of the case of a nephew coming into an inheritance in preference to the uncle because he had been living at the same hearth or in the same hall (in atrio or astro) with the former owner,* and in such or a similar sense the word appears to have been usually employed by lawyers.* On the other hand, if we look in Bracton's treatise for parallel passages to those quoted from the Fleta and Britton about the villain astrier, we find only a reference to the fact that the person in question was a serf and holding in villainage and under the sway of a lord,* and so there is nothing to denote special condition in the astrer. When the term occurs in connexion with villainage it serves to show that a person was not only a bondman born, but actually living in the power of his lord, and not in a state of liberty. The allusion to the hearth cannot possibly mean that the man sits in his own homestead, because only a few of the villains could have been holders of separate homesteads, and so it must mean that he was sitting in a homestead belonging to his lord, which is quite in keeping with the application of the term in the case of inheritance.

The facts we have been examining certainly suppose that in the villains we have chiefly to do with peasants tilling the earth and dependent on manorial organisation. They disclose the working of one element which is not to be simply deduced from the idea of personal dependence.

It may be called subjection to territorial power. The possession of a manor carries the possession of cultivators with it. It is always important to decide whether a bondman is in the seisin of his lord or not, and the chief means to show it is to trace his connexion with the territorial lordship. The interposition of the manor in the relation between master and man is, of course, a striking feature and it gives a very characteristic turn to medieval servitude. But if it is not consistent with the general theory laid down in the thirteenth century law books, it does not lead to anything like the Roman colonatus. The serf is not placed on a particular plot of land to do definite services under the protection of the State. He may be shifted from one plot within the jurisdiction of his lord to another, from one area of jurisdiction to another, from rural labour to industrial work or house work, from one set of customs and services to another. He is not protected by his predial connexion against his lord, and in fact such predial connexion is utilised to hold and bind him to his lord. We may say, that the unfree peasant of English feudalism was legally a personal dependant, but that his personal dependence was enforced through territorial lordship.

NOTES:

1. Thorold Rogers, History of Agriculture and Prices, i. 70; Six Centuries of Work and Wages, 44. Cf Chandler, Five Court Rolls of Great Cressingham in the county of Norfolk, 1885, pp. viii, ix.

2. Stubbs, Seventeen Lectures, 304, 305; Maitland, Introduction to the Note-book of Bracton, 4 sqq.

3. Dial. de Scacc. Ii. 10 (Select Charters, p. 222). Cf i. 10; p. 192.

4. Glanville, v. 5; Bracton, 4, 5; Fleta, i. 2; Britton, ed. Nichols, i. 194.

1. Bracton, 5; Britton, i. 197. Pollock, Land-laws, App. C, is quite right as to the fundamental distinction between status and tenure, but he goes too far, I think, in trying to trace the steps by which names originally applying to different things got confused in the terminology of the Common Law. Annotators sometimes indulged in distinctions which contradict each other and give us no help as to the law. The same Cambridge MS. from which Nichols gives an explanation of servus, nativus, and villanus (i. 195) has a different etymology in a marginal note to Bracton. 'Nativus dicitur a nativitate-quasi in servitute natus, villanus dicitur a villa, quasi faciens villanas consuetudines racione tenementi, vel sicut ille qui se recognoscit ad villanum in curia quae recordum habet, servus vero dicitur a servando quasi per captivitatem, per vim et injustam detentionem villanus captus et detentus contra mores et consuetudines juris naturalis, (Cambr. Univers. MSS. Dd. vii. 6. I have the reference from my friend F.W. Maitland).

2. Placita Coram Rege, Easter, 14 Edw. I, m. 9: "Willelmus Barantyn et Radulfus attachiati fuerunt ad respondendum Agueti de Chalgraue de placito quare in ipsam Agnetem apud Chalgraue insultum fecerunt et ipsam verberaverunt, vulneraverunt et male tractaverunt, et bona et catalla sua in domibus ipsius Agnetis apud Chalgraue scilicet ordeum et avenam, argentum, archas et alia bona ad valenciam quadraginta solidorum ceperunt et asportaverunt; et ipsam Agnetem effugaverunt de uno mesuagio et dimidia virgata terre de quibus fuit in seysina prr predictum Willelmum que fuerunt de antiquo dominico per longum tempus; nec permiserunt ipsam Agnetem morari in predicta villa de Chalgraue; et eciam quandam sororem ipsius Agnetis eo quod ipsa soror eam hospitavit per duas noctes de domibus suis eiecit, terra et catalla sua abstulit. Et predicti Willelmus et Radulfus veniunt. Et quo ad insultacionem et verberacionem dicunt quod non sunt inde culpabiles. Et quo ad hoc quod ipsa Agnes dicit quod ipsam eiecerunt de domibus et terris suis, dicunt quod predicta Agnes est natiua ipsius Willelmi et tenuit predicta tenementa in villenagio ad voluntatem ipsius Willelmi propter quod bene licebat eidem Willelmo ipsam de predicto tenemento ammouere. -- Juratores dicunt.... quod predicta tenementa sunt villenagium predicti Willelmi de Barentyn et quod predicta Agnes tenuit eadem tenementa ad voluntatem ipsius Willelmi.' Cf. Y.B. 12/13 Edw. III (ed. Pike), p. 233 sqq., 'or vous savez bien qe par ley de terre tout ceo qe le vileyn ad si est a soun seignour;' 229 sqq., 'qar cest sa terre demene, et il les puet ouster a sa volunte demene.'

1. Coram Rege, Mich., 3/4 Edw. I, m. I: 'Ricardus de Assheburnham summonitus fuit ad respondendum Petro de Attebuckhole et Johanni de eadem de placito quare, cum ipsi teneant quasdam terras et tenementa de predicto Ricardo in Hasseburnham ac ipsi parati sunt ad faciendum ei consuetudines et servicia que antecessores sui terras et tenementa illa tenentes facere consueverint, predictus Ricardus diversas commoditates quam ipsi tam in boscis ipsius Ricardi quam in aliis locis habere consueverint eisdem subtrahens ipsos ad intollerabiles servitutes et consuetudines faciendas taliter compellit quod ex sua duricia mendicare coguntur. Et unde queruntur quod, cum teneant tenementa Sua per certas consuetudines et certa servicia, et cum percipere consueverunt boscum ad focum et materiam de bosco crescente in propriis terris suis, predictus Ricardus ipsos non permittit aliquid in boscis suis capere et eciam capit aueria sua et non permittit eos terram suam colere. -- Ricardus dicit, quod non debet eis ad aliquam accionen respondere nisi questi essent de vita vel membris vel de iniuria facta corpori suo. Dicit eciam quod nativi sui sunt, et quod omnes antecessores sui nativi fuerunt antecessorum suorum et in villenagio suo manentes.'

2. Note-book of Bracton, pl. 1237: 'dominus Rex non vult se de eis intromittere.'

3. It occurs in the oldest extant Plea Roll, 6 Ric. I; Rot. Cur. Regis, ed. Palgrave, p. 84: 'Thomas venit et dicit quod ipsa fuit uxorata cuidam Turkillo, qui habuit duos filios qui clamabant libertatem tenementi sui in curia domini Regis... et quod ibi dirationavit eos esse villanos suos, et non defendit disseisinam... Et ipsi Elilda et Ricardus defendunt vilenagium et ponunt se super juratam,' etc.

1. Maitland, Select Pleas of the Crown (Selden Soc. I), pl. 3: 'Quendam nativum suum quem habuit in vinculis eo quod voluit fugere.' Bract. Notebook, pl. 1041: 'Petrus de Herefordia attachiatus fuit ad respondendum R. fil. Th. quare ipse cepit Ricardum et eum imprisonauit et coegit ad redempcionem I marce. Et Petrus venit alias et defendit capcionem et imprisonacionem set dicit quod villanus fuit,' etc.

 It must be noted, however, that in such cases it was difficult to draw the line as to the amount of bodily injury allowed by the law, and therefore the King's courts were much more free to interfere. In the trial quoted on p. 45, note 2, the defendants distinguish carefully between the accusation and the civil suit. They plead 'not guilty' as to the former. And so Bishop Stubbs' conjecture as to the 'rusticus verberatus' in Pipe Roll, 31 Henry I, p. 55 (Constit. Hist. I. 487), seems quite appropriate. The case is a very early one, and may testify to the better condition of the peasantry in the first half of the twelfth century.

2. As to the actual treatment experienced by the peasants at the hands of their feudal masters, see a picturesque case in Maitland's Select Pleas of the Crown (Selden Soc.), 203.

1. Stubbs, Constitutional History, ii. 652, 654; Freeman, Norman Conquest, v. 477; Digby, Introduction to the Law of Real Property, 244.

1. Sir Thomas Smith, The Commonwealth of England, ed. 1609, p. 123, shows that the notion of two classes corresponding to the Roman servus and the Roman adscriptus glebae had taken root firmly about the middle of the sixteenth century. 'Villeins in gross, as ye would say immediately bond to the person and his heirs... (The adscripti) were not bond to the person but to the mannor or place, and did follow him who had the mannors, and in our law are called villains regardants (sic), for because they be as members or belonging to the mannor or place. Neither of the one sort nor of the other have we any number in England. And of the first I never knew any in the Realme in my time. Of the second so fewe there bee, that it is not almost worth the speaking, but our law doth acknowledge them in both these sorts.'

1. Section 182 is not quite consistent with such an exposition, but I do not think there can be any doubt as to the general doctrine.

2. I need not say that the work done by Mr Horwood, and especially by Mr Pike, for the Rolls' Series quite fulfil the requirements of students. But in comparison with it the old year Books in Rastall's, and even more so in Maynard's edition, appear only the more wretchedly misprinted.

1. For instance, Liber Assisarum, ann. 44, pl. 4 (f 283): 'Quil fuit son villein et il seisi de luy come de son villein come regardant a son maneir de B. en la Counte de Dorset.'

1. Y.B. Hil. 5 Edw. II: 'Iohan de Rose port son [ne] vexes vers Labbe de Seint Bennet de Holme, et il counta qil luy travaille, etc., e luy demande.' Migg.: 'defent tort et force, ou et quant il devera et dit qil fuist le vilein Labbe, per qi il ne deveroit estre resceve.' Devom.: 'il covient qe vous disez plus qe vous estes seisi, ut supra,' etc. Migg.: ' il est nostre vileyn, et nous seisi de luy come de nostre vileyn.' Ber.; 'Coment seisi come,' etc.? Migg.: 'de luy et de ces auncestres come de nos vileynes, en fesant de luy nostre provost en prenant de luy rechate de char et de saunk et redemption pur fille et fitz marier de luy et de ces auncestres et a tailler haut et bas a nostre volente, prest,' etc. (Les reports des cases del Roy Edward le II, London, 1678; f 157.)

2. I do not think it ever came into any one's mind to look at the Plea Rolls in this matter. Even Hargrave, when preparing his famous argument in Somersett's case, carried his search no further than the Year Books then in print. And in consequence he just missed the true solution. He says (Howell's State Trials, xx. 42, 43), 'As to the villeins in gross the cases relative to them are very few; and I am inclined to think that there never was any great number of them in England.... However, after a long search, I do find places in the Year Books where the form of alledging villenage in gross is expressed, not in full terms, but in a general way; and in all the cases I have yet seen, the villenage is alledged in the ancestors of the person against whom it was pleaded.' And he quotes 1 Edw. II, 4; 5 Edw. II, 157 (corr. for 15); 7 Edw. II, 242, and 11 Edw. II, 344. But all these cases are of Edward II's time, and instead of being exceptional give the normal form of pleading as it was used up to the second quarter of the fourteenth century. They looked exceptional to Hargrave only because he restricted his search to the later Year Books, and did not take up the Plea Rolls. By admitting the cases quoted to indicate villainage in gross, he in fact admitted that there were only villains in gross before 1350 or thereabouts, or rather that all villains were alike before this time, and no such thing as the difference between in gross and regardant existed. I give in App. I the report of the interesting case quoted from I Edw. II.

3. Y. B. 32 /33 Edw. I (Horwood), p. 57: 'Quant un home est seisi de son vilein, issl. qil est reseant dans son vilenage.' Fitzherbert, Abr. Vill. 3 (39 Edw. III): '... villeins sunt appendant as maners qe sount auncien demesne.' On the other hand, 'regardant' is used quite independently of villainage. Y. B. 12/13 Edw. III (Pike), p. 133: 'come services regardaunts al manoir de H.'

1. Y.B. Hil. 14 Edw. II, f 417: 'R. est bailli... del manoir de Clifton... deins quel manoir cesti J. est villein.'

2. See App. I and II.

3. Y.B. Trin. 9 Edw. II, f 294: 'Le manoir de H. fuit en ascun temps en la seisine Hubert nostre ael, a quel manoir cest vileyn est regardant.'

1. Y.B. Trin. 29 Edw. III, f. 41. For the report of this case and the corresponding entry in the Common Pleas Roll, see Appendix II.

1. Cf. Annals of Dunstaple, Ann. Mon. Iii. 371: 'Quia astrarius eius fuit,' in the sense of a person living on one's land.

2. Bracton, f. 267, b.

3. Bract. Note-book, pl. 230, 951, 988. Cf. Spelman, Gloss. v. astrarius Kentish Custumal, Statutes of the Realm, i. 224. Fleta has it once in the sense of the Anglo-Saxon heord-faest, i. cap. 47, 10 (f. 62).

1. Bracton, f. 190.

Chapter 2 — Rights and Disabilities of the Villain

Legal theory as we have seen endeavoured to bring the general conception of villainage under the principles of the Roman law of slavery, and important features in the practice of the common law went far to support it in so doing. On the other hand, even the general legal theory discloses the presence of an element quite foreign to the Roman conception. If we proceed from principles to their application in detail, we at once find, that in most cases the broad rules laid down on the subject do not fit all the particular aspects of villainage. These require quite different assumptions for their explanation, and the whole doctrine turns out to be very complex, and to have been put together out of elements which do not work well together.

We meet discrepancies and confusion at the very threshold in the treatment of the modes in which the villain status has its origin. The most common way of becoming a villain was to be born to this estate, and it seems that we ought to find very definite rules as to this case. In truth, the doctrine was changing. Glanville (v. 6) tried in a way to conform to the Roman rule of the child following the condition of the mother, but it could not be made to work in England, and ever since Bracton, both common law and jurisprudence reject it. At the close of the Middle Ages it was held that if born in wedlock the child took after his father,* and that a bastard was to be accepted as filius nullius and presumed free.* Bracton is more intricate; the bastard follows the mother, the legitimate child follows the father; and there is one exception, in this way, that the legitimate child of a free man and a nief born in villainage takes after the mother.* It is not difficult to see why the Roman rule did not fit; it was too plain for a state of things which had to be considered from three different sides.* The Roman lawyer merely looked to the question of status and decided it on the ground of material demonstrability of origin,* if such an expression may be used. The Medieval lawyer had the Christian sanctification of marriage to reckon with, and so the one old rule had to be broken up into two rules-one applicable to legitimate children, the other to bastards. In case of bastardy the tendency was decidedly in favour of retaining the Roman rule, equally suiting animals and slaves, and the later theory embodied in Littleton belongs already to the development of modern ideas in favour of liberty.* In case of legitimacy the recognition of marriage led to the recognition of the family and indirectly to the closer connexion with the father as the head of the family. In addition to this a third element comes in, which may be called properly feudal. The action of the father-rule is modified by the influence of territorial subjection. The marriage of a free man with a nief may be considered from a special point of view, if, as the feudal phraseology goes, he enters to her into her villainage.* By this fact the free man puts his child under the sway of the lord, to whose villainage the mother belongs. It is not the character of the tenement itself which is important in this case, but the fact of subjection to a territorial lord, whose interest it is to retain a dependant's progeny in a state of dependency. The whole system is historically important, because it illustrates the working of one of the chief ingredients of villainage, an ingredient entirely absent from ancient slavery; whereas medieval villainage depends primarily on subjection to the territorial power of the lord. Once more we are shown the practical importance of the manorial system in fashioning the state of the peasantry. Generally a villain must be claimed with reference to a manor, in connexion with an unfree hearth; he is born in a nest,* which makes him a bondman. The strict legal notion has to be modified to meet the emergency, and villainage, instead of indicating complete personal subjection, comes to mean subjection to a territorial lord.

This same territorial element not only influences the status of the issue of a marriage, it also affects the status of the parties to a marriage, when those parties are of unequal condition. Most notable is the case of the free wife of a villain husband lapsing into servitude, when she enters the villain tenement of her consort; her servitude endures as long as her husband is in the lord's power, as long as he is alive and not enfranchised. The judicial practice of the thirteenth century gives a great number of cases where the tribunals refuse to vindicate the rights of women entangled in villainage by a mesalliance.* Such subjection is not absolute, however. The courts make a distinction between acquiring possession and retaining it. The same woman who will be refused a portion of her father's inheritance because she has married a serf, has the assize of novel disseisin against any person trying to oust her from a tenement of which she had been seised before her marriage.* The conditional disabilities of the free woman are not directly determined by the holding which she has entered, but by her marital subordination to an unfree husband ('sub virga,' Bract. Note-book, pl. 1685), For this reason the position of a free husband towards the villainage of his wife a nief is not exactly parallel. He is only subject to the general rules as to free men holding in villainage.* In any case, however, the instances which we have been discussing afford good illustrations of the fact, that villainage by no means flows from the simple source of personal subjection; it is largely influenced by the Christian organisation of the family and by the feudal mixture of rights of property and sovereignty embodied in the manorial system.

There are two other ways of becoming a villain besides being born to the condition; the acknowledgment of unfree status in a court of record, and prescription. We need not speak of the first, as it does not present any particulars of interest from a historical point of view. As to prescription, there is a very characteristic vacillation in our sources. In pleadings of Edward III's time its possibility is admitted, and it is pointed out, that it is a good plea if the person claimed by prescription shows that his father and grandfather* were strangers.

There is a curious explanatory gloss, in a Cambridge MS. of Bracton, which seems to go back at least to the beginning of the fourteenth century, and it maintains that free stock doing villain service lapses into villainage in the fifth generation only.* On the other hand, Britton flatly denies the possibility of such a thing; according to him no length of time can render free men villains or make villains free men. Moreover he gives a supposed case (possibly based on an actual trial), in which a person claimed as a villain is made to go back to the sixth generation to establish his freedom,* It does not seem likely that people could often vindicate their freedom by such elaborate argument, but the legal assumption expounded in Britton deserves full attention. It is only a consequence of the general view, that neither the holding nor the services ought to have any influence on the status of a man, and in so far it seems legally correct. But it is easy to see how difficult it must have been to keep up these nice distinctions in practice, how difficult for those who for generations had been placed in the same material position with serfs to maintain personal freedom.* For both views, though absolutely opposed to each other, are in a sense equally true: the one giving the logical development of a fundamental rule of the law, the other testifying to the facts. And so we have one more general observation to make as to the legal aspect of villainage. Even in the definition of its fundamental principles we see notable discrepancies and vacillations, which are the result of the conflict between logical requirements and fluctuating facts.

The original unity of purpose and firmness of distinction are even more broken up when we look at the criminal and the police law where they touch villainage. In the criminal law of the feudal epoch there is hardly any distinction between free men and villains. In point of amercements there is the well-known difference as to the 'contenement' of a free landholder, a merchant and a villain, but this difference is prompted not by privilege but by the diversity of occupations. The Dialogus de Scaccario shows that villains being reputed English are in a lower position than free men as regards the presumption of Englishry and the payment of the murder-fine,* but this feature seems to have become obliterated in the thirteenth century. In some cases corporal punishment may have differed according to the rank of the culprit, and the formalities of ordeal were certainly different.* The main fact remains, that both villains and free men were alike able to prosecute anybody by way of 'appeal'* for injury to their life, honour, and even property,* and equally liable to be punished and prosecuted for offences of any kind. Their equal right was completely recognized by the criminal law, and as a natural sequence of this, the pleas of the crown generally omit to take any notice of the status of parties connected with them. One may read through Mr Maitland's collection of Pleas of the Crown edited for the Selden Society, or through his book of Gloucestershire pleas, without coming across any but exceptional and quite accidental mentions of villainage. In fact were we to form our view of the condition of England exclusively on the material afforded by such documents, we might well believe that the whole class was all but an extinct one. One glance at Assize Rolls or at Cartularies would teach us better. Still the silence of the Corona Rolls is most eloquent. It shows convincingly that the distinction hardly influenced criminal law at all.

It is curious that, as regards police, villains are grouped under an institution which, even by its name, according to the then accepted etymology, was essentially a free institution. The system of frank pledge (plegium liberale), which should have included every one 'worthy of his were and his wite,' is, as a matter of fact, a system which all through the feudal period is chiefly composed of villains. Free men possessed of land are not obliged to join the tithing because they are amenable to law which has a direct hold on their land,* and so the great mass of free men appear to be outside these arrangements, for the police representation of the free, or, putting it the other way, feudal serfs actually seem to represent the bulk of free society. The thirteenth-century arrangements do not afford a clue to such paradoxes, and one has to look for explanation to the his tory of the classes.

The frankpledge system is a most conspicuous link between both sections of society in this way also, that it directly connects the subjugated population with the hundred court, which is the starting-point of free judicial organisation. Twice a year the whole of this population, with very few exceptions, has to meet in the hundred in order to verify the working of the tithings. Besides this, the class of villains must appear by representatives in the ordinary tribunals of the hundred and the shire: the reeve and the four men, mostly unfree men,* with their important duties in the administration of justice, serve as a counterpoise to the exclusive employment of 'liberi et legales homines' on juries.

And now I come to the most intricate and important part of the subject -- to the civil rights and disabilities of the villain. After what has been said of the villain in other respects, one may be prepared to find that his disabilities were by no means so complete as the strict operation of general rules would have required. The villain was able in many cases to do valid civil acts, to acquire property and to defend it in his own name. It is true that, both in theory and in practice, it was held that whatever was acquired by the bondman was acquired by the lord. The bondman could not buy anything but with his lord's money, as he had no money or chattels of his own.* But the working of these rules was limited by the medieval doctrine of possession. Land or goods acquired by the serf do not eo ipso lapse into his lord's possession, but only if the latter has taken them into his hand.* If the lord has not done so for any reason, for want of time, or carelessness, or because he did not choose to do so, the bondman is as good as the owner in respect of third persons. He can give away* or otherwise alienate land or chattels, he has the assize of novel disseisin to defend the land, and leaves the assize of mort d'ancestor to his heirs. In this case it would be no good plea to object that the plaintiff is a villain. In fact this objection can be raised by a third person only with the addition that, as villain, the plaintiff does not hold in his own name, but in the name of his lord.* A third person cannot except against a plaintiff merely on the ground of his personal status. As to third persons, a villain is said to be free and capable to sue all actions.* This of course does not mean that he has any action for recovering or defending his possession of the tenements which he holds in villainage, but this disability is no consequence of his servile blood, for he shares it with the free man who holds in villainage; it is a consequence of the doctrine that the possession of the tenant in villainage is in law the possession of him who has the freehold. It may be convenient for a villain as defendant to shelter himself behind the authority of his lord,* and it was difficult to prevent him from doing so, although some attempts were made by the courts even in this case to distinguish whether a person had been in possession as a dependant or not. But there was absolutely nothing to prevent a villain from acting in every respect like a free man if he was so minded and was not interrupted by his lord. There was no need of any accessory action to make his acts complete and legal.* Again we come to an anomaly: the slave is free against everybody but his lord.

Even against his lord the bondman had some standing ground for a civil action. It has rightly been maintained, that he could implead his master in consequence of an agreement with him. The assertion is not quite easy to prove however, and has been put forward too sweepingly.* At first sight it seems even that the old law books, i.e. those of Bracton and his followers, teach the opposite doctrine. They deal almost exclusively with the case of a feoffment made by the lord to a villain and his heirs, and give the feoffee an action only on the ground of implied manumission. The feoffor enfranchises his serf indirectly, even if he does not say so in as many words, because he has spoken of the feoffee's heirs, and the villain has no other heirs besides the lord,* The action eventually proceeds in this case, because it is brought not by a serf but by a freed man. One difficult passage in Bracton points another way; it is printed in a foot-note.* There can be no doubt, that in it Bracton is speaking of a covenant made by the lord not with a free man or a freed man, but with a villain. This comes out strongly when it is said, that the lord, and not the villain, has the assize against intruders, and when the author puts the main question -- is the feoffor bound to hold the covenant or not? The whole drift of the quotation can be understood only on the fundamental assumption that we have lord and villain before us. But there are four words which militate against this obvious explanation; the words 'sibi et heredibus suis,' We know what their meaning is -- they imply enfranchisement and a freehold estate of inheritance. They involve a hopeless contradiction to the doctrine previously stated, a doctrine which might be further supported by references to Britton, Fleta and Bracton himself.* In short, if we accept them, we can hardly get out of confusion. Were our text of Bracton much more definitely and satisfactorily settled than it is,* one would still feel tempted to strike them out; as it is we have a text studded with interpolations and errors, and it seems quite certain that 'sibi et heredibus suis' has got into it simply because the compositor of Tottell's edition repeated it from the conclusion of the sentence immediately preceding, and so mixed up two cases, which were to be distinguished by this very qualification. The four words are missing in all the MSS. of the British Museum, the Bodleian and the Cambridge University Library,* I have no doubt that further verification will only confirm my opinion. On my assumption Bracton clearly distinguishes between two possibilities. In one case the deed simply binds the lord as to a particular person, in the other it binds him in perpetuity, and in this latter case, as there ought not to be any heirs of a bondman but the lord, bondage is annihilated by the deed. It is not annihilated when one person is granted a certain privilege as to a particular piece of land, and in every other respect the grantee and all his descendants remain unfree:* -- he has no freehold, but he has a special covenant to fall back upon. This seems to lie at the root of what Bracton calls privileged villainage by covenant as distinguished from villain socage.

*The reader may well ask whether there are any traces of such an institution in practice, as it is not likely that Bracton would have indulged in mere theoretical disquisitions on such an important point. Now it would be difficult to find very many instances in point; the line between covenant and enfranchisement was so easily passed, and an incautious step would have such unpleasant consequences for landlords, that they kept as clear as possible of any deeds which might indirectly destroy their claims as to the persons of their villains.* On the other hand, even privileged serfs would have a great difficulty in vindicating their rights on the basis of covenant if they remained at the same time under the sway of the lord in general. The difficulties on both sides explain why Fleta and Britton endorse only the chief point of Bracton's doctrine, namely, the implied manumission, and do not put the alternative as to a covenant when heirs are not mentioned. Still I have come across some traces in legal practice* of contracts in the shape of the one discussed. A very interesting case occurred in Norfolk in 1227, before Martin Pateshull himself. A certain Roger of Sufford gave a piece of land to one of his villains, William Tailor, to hold freely by free services, and when Roger died, his son and heir William of Sufford confirmed the lease. When it pleased the lord afterwards to eject the tenant, this latter actually brought an assize of novel disseisin and recovered possession. Bracton's marginal note to the case runs thus: 'Note, that the son of a villain recovered by an assize of novel disseisin a piece of land which his father had held in villainage, because the lord of the villain by his charter gave it to the son [i.e. to the plaintiff], even without manumission.'* The court went in this case even further than Bracton's treatise would have warranted: the villain was considered as having the freehold, and an assize of novel disseisin was granted; but although such a treatment of the case was perhaps not altogether sound, the chief point on which the contention rested is brought out clearly enough. There was a covenant, and in consequence an action, although there was no manumission; and it is to this point that the marginal note draws special attention.

*Again, we find in the beginning of Bracton's treatise a remark* which is quite out of keeping with the doctrine that the villain had no property to vindicate against his lord; it is contradicted by other passages in the same book, and deserves to be considered the more carefully on that account. Our author is enumerating the cases in which the serf has an action against his lord. He follows Azo closely, and mentions injury to life or to limb as one cause. Azo goes on to say that a plaint may be originated by intollerabilis injuria, in the sense of corporeal injury. Bracton takes the expression in a very different sense; he thinks that economic ruin is meant, and adds, 'Should the lord go so far as to take away the villain's very waynage, i.e. plough and plough-team, the villain has an action,' It is true that Bracton's text, as printed in existing editions, contains a qualification of this remark; it is said that only serfs on ancient demesne land are possessed of such a right. But the qualification is meaningless; the right of ancient demesne tenants was quite different, as we shall see by-and-by. The qualifying clause turns out to be inserted only in later MSS. of the treatise, is wanting in the better MSS., and altogether presents all the characters of a bad gloss.* When the gloss is removed, we come in sight of the fact that Bracton in the beginning of his treatise admits a distinct case of civil action on the part of a villain against his lord. The remark is in contradiction with the Roman as well as with the established English doctrine, it is not supported by legal practice in the thirteenth century, it is omitted by Bracton when he comes to speak again of the 'persona standi in judicio contra dominum.'* But there it is, and it cannot be explained otherwise than as a survival of a time when some part of the peasantry at least had not been surrendered to the lord's discretion, but was possessed of civil rights and of the power to vindicate them. The notion that the peasant ought to be specially protected in the possession of instruments of agricultural labour comes out, singularly enough, in the passage commented upon, but it is not a singular notion in itself. It occurs, as every one knows, in the clause of the Great Charter, which says that the villain who falls into the king's mercy is to be amerced 'saving his waynage.' We come across it often enough in Plea Rolls in cases against guardians accused of having wasted their ward's property. One of the special points in such cases often is, that a guardian or his steward has been ruining the villains in the ward's manors by destroying their waynage.* Of course, the protection of the peasant's prosperity, guaranteed by the courts in such trials, is wholly due to a consideration of the interests of the ward; and the care taken of villains is exactly parallel to the attention bestowed upon oaks and elms. Still, the notion of waynage is in itself a peculiar and an important one, and whatever its ultimate origin may be, it points to a civil condition which does not quite fall within the lines of feudal law.

Another anomaly is supplied by Britton. After putting the case as strongly as possible against serfs, after treating them as mere chattels to be given and sold, he adds, 'But as bondmen are annexed to the freehold of the lord, they are not devisable by testament, and therefore Holy Church can take no cognisance of them in Court Christian, although devised in testament.' (I. 197) The exclusion of villains is not peculiar to them; they share it with the greater part of landed possessions.' As all the courts of civil jurisdiction had been prohibited from holding jurisdiction as to testamentary matters, and the Ecclesiastical Courts were not permitted to exercise jurisdiction as to any question relating to freehold, there was no court which could properly take cognisance of a testamentary gift of land as such.'* The point to be noted is, that villains are held to be annexed to the freehold, although in theory they ought to be treated as chattels. The contradiction gives us another instance of the peculiar modification of personal servitude by the territorial element. The serf is not a colonus, he is not bound up with any particular homestead or plot of land, but he is considered primarily as a cultivator under manorial organisation, and for this reason there is a limitation on the lord's power of alienating him. Let it be understood, however, that the limitation in this case does not come before us as a remnant of independent rights of the peasant. It is imposed by those interests of the feudal suzerain and of the kin which precluded the possibility of alienating land by devise.

*An inquiry into the condition of villains would be altogether incomplete, if it did not touch on the questions of villain tenure and villain services. Both are intimately connected with personal status, as may be seen from the very names, and both have to be very carefully distinguished from it. I have had to speak of prescription as a source of villainage. Opinions were very uncertain in this respect, and yet, from the mere legal point of view, there ought not to have been any difficulty about the matter. Bracton takes his stand firmly on the fundamental difference between status and tenure in order to distinguish clearly between serfs and free men in a servile position.* The villain is a man belonging to his lord personally; a villain holding (villenagium) is land held at the will of the lord, without any certainty as to title or term of enjoyment, as to kind or amount of services. Serfs are mostly, though not necessarily, found on villain land; it does not follow that all those seated on villain land are serfs. Free men are constantly seen taking up a villenagium; they do not lose by it in personal condition; they have no protection against the lord, if he choose to alter their services or oust them from the holding, but, on the other hand, they are free to go when they please. There is still less reason to treat as serfs such free peasants as are subjected to base services, i.e. to the same kind of services and payments as the villains, but on certain conditions, not more and not less. Whatever the customs may be, if they are certain, not only the person holding by them but the plot he is using are free, and the tenure may be defended at law.

*Such are the fundamental positions in Bracton's treatise, and there can be no doubt that they are borne out in a general way by legal practice. But if from the general we turn to the particular, if we analyse the thirteenth-century decisions which are at the bottom of Bracton's teaching, we shall find in many cases notions cropping up, which do not at all coincide with the received views on the subject. In fact we come across many apparent contradictions which can be attributed only to a state of fermentation and transition in the law of the thirteenth century.

Martin of Bestenover's case is used by Bracton in his treatise as illustrating the view that tenure has no influence on status.* It was a long litigation, or rather a series of litigations. Already in the first year of King John's reign we hear of a final concord between John of Montacute and Martin of Bestenover as to a hundred acres held by the latter.* The tenant is ejected however, and brings an assize of mort d'ancestor against Beatrice of Montacute, who, as holding in dower, vouches her son John to warranty. The latter excepts against Martin as a villain. A jury by consent of the parties is called in, and we have their verdict reported three times in different records.* They say that Martin's father Ailfric held of John Montacute's father a hundred acres of land and fifty sheep besides, for which he had to pay 20s. a year, to be tallaged reasonably, when the lord tallaged his subjects, and that he was not allowed to give his daughter away in marriage before making a fine to the lord according to agreement. We do not know the decision of the judges in John's time, but both from the tenor of the verdict and from what followed, we may conclude that Martin succeeded in vindicating his right to the land. Proceedings break out again at the beginning of Henry III's reign.

In 1219 John of Montacute is again maintaining that Martin is his villain, in answer as it seems to an action de libertate probanda which Martin has brought against him. The court goes back to the verdict of the jury in John's time, and finds that by this verdict the land is proved to be of base tenure, and the person to be free. The whole is repeated again on a roll of 1220; whether we have two decisions, one of 1219 and the other of 1220, or merely two records of the same decision, is not very clear, nor is it very important. But there are several interesting points about this case. The decision in 1220 is undoubtedly very strong on the distinction between status and tenure: 'nullum erat placitum in curia domini Regis de villenagio corporis ipsius Martini nisi tantum de villenagio et consuetudinibus terre,' etc. As to tenure, the court delivers an opinion which is entitled to special consideration, and has been specially noticed by Bracton both in his Notebook and in his treatise. 'If Martin,' say the judges on the roll of 1219, 'wishes to hold the land, let him perform the services which his father has been performing; if not, the lord may take the land into his hands.'* The same thing is repeated almost literally on the roll of 1220. Bracton draws two inferences from these decisions. One is suggested by the beginning of the sentence; 'If Martin wishes to hold the land.' Both in the Note-book and in the treatise Bracton deduces from it, that holding and remaining on the land depended on the wish of Martin, who as a free man was entitled to go away when he pleased.* The judgment does not exactly say this, but as to the right of a free person to leave the land there can be no doubt.

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 services.* There can be no question as to the importance of such a view; it contains, as it were, the germ of copyhold tenure.* 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 villainage.* 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 land.* 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 Raleigh.* 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.

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 retractation,* 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 not,* 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 villainage.* 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 free.

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 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 descent.* The verdict of a jury was not sufficient to settle the question,* 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 claimed.* 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 proved.* 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 liberty.'* 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 him.4 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 born.* 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-countryman.

*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 proved.* 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 nest.* 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.

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 town.* 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 lord.* 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 money,* but the practice of selling them for manumission to a stranger is mentioned both in Bracton's Treatise* 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 Notebook very appropriately protests against such a view, which is certainly quite inconsistent with later practice.* 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.

NOTES:

1. Littleton, sect. 188.

2. Bracton, ff. 5, 193, b.

3. I need not say that there were very notable variations in the history of the Roman rule itself (cf for instance, Puchta, Institutionen, 211), but these do not concern us, as we are taking the Roman doctrine as broadly as it was taken by medieval lawyers.

4. Mater certa est. Gai. Inst. I. 82. 3 See Fitz. Abr. Villenage, pl. 5 (43 Edw. III): 'Ou il allege bastardise pur ceo qe si son auncestor fuit bastard il ne puit estre villein, sinon par connusance.' There was a special reason for turning the tables in favour of bastardy, which is hinted at in this case. The bastard's parents could not be produced against a bastard. He had no father, and his mother would be no proof against him because she was a woman [Fitz. Abr. Vill. 37 (13 Edw. I), Par ce qe la feme ne puit estre admise pur prove par lour fraylte et ausi cest qi est demaunde est pluiz digne person qe un feme]. It followed strictly that he could be a villain by confession, but not by birth. The fact is a good instance of the insoluble contradictions in which feudal law sometimes involved itself.

5. Bracton, f 5: 'Servus ratione qui se copulaverit villanae in villenagio constitutae.' Bract. Note-book, 1839: 'Juratores dicunt quod predictus Aluredus habuit duos fratres Hugonem [medium] medio tempore natum et Gilibertum postnatum qui nunc petit, set Hugo cepit quamdam terram in uillenagio et duxit uxorem [uillanam] et in uillenagio illo procreauit quemdam filium qui ad huc superest.... Et bene dicunt quod... Iste Gilibertus propinquior heres eius est, ea racione quod filius Hugonis genitus fuit in uillenagio.' 2 Y.B. 30/31 Edw. I, p. 167 sqq.: 'Usage de Cornwall est cecy qe la ou neyfe deyt estre marier hors de maner ou ele est reseant, qe ele trovera seurte... de revenir a son ny ov ses chateux apres la mort de son baroun.' Bracton, f. 26, 'Quasi avis in nido.'

6. Bract. Note-book, pl. 702: 'Nota quod libera femina maritata uillano non recuperat partem alicuius hereditatis quamdiu uillanus uixerit.'

7. Bract. Note-book, pl. 1837: 'Nota quod mulier que est libera uel in statu libero saltem ad minus non debet disseisiri quin recuperare possit per assisam quamuis nupta fuerit uillano set hereditatem petere non poterit.' Bract. Note-book, pl. 1010: 'Et uillani mori poterunt per quod predicte sorores petere possint ius suum.' Fitzherb. Villen. 27 (P. 7 Edw. II.): 'Les femmes sont sans recouverie vers le seignior uiuant leur barons pur ce que ils sont villens.' Cf Bracton, f 202.

8. Another instance of the influence of marriage on the condition of con tracting parties is afforded by the enfranchisement of the wife in certain cases. The common law was, however, by no means settled as to this point. Y. B. 30/31 Edw. I, p. I67 sqq.: 'La ou le seygnur espouse sa neyfe, si est enfranchi pur tozjurs; secus est la ou un homme estrange ly espose, qe donk nest ele enfraunchi si non vivant Son baroun, et post mortem viri redit ad pristinum statum.' Fitzherb. Vill. 21 (P. 33 Edw. III): 'Si home espouse femme qe est son villein el est franke durant les espousailles. Mes quand son baron est mort el est in statu quo prius, et issint el puis estre villein a son fils demesne.' It is quite likely that gentlemen sometimes got into a state of moral bondage to their own bondwomen, and were even led to marriage in a few instances, but the law had not much to feed upon in this direction, I imagine.

9. Fitzherbert, Vill. 24 (H. 50 Edw. III; P. 40 Edw. III, 17): 'Si home demurt en terre tenue en villenage de temps dount, etc., il sera villen, et est bon prescripcion et encountre tel prescripcion est bon ple a dire qe son pere ou ayle fuit adventiffe,' etc. I suppose ayle here to be a simple error for ayl or ael, grandfather.

10. Cambridge Univ., Dd. vij. 6, f 231: 'Nota de tempore quo servus dicere poterit quia fecerlt consuetudines villanas racione tenementi non racione persone. Et sciendum, quod quamdiu servus poterit verificare stipitem suam liberam non dicitur nativus, set quam citius dominus dlcere poterit villicus noster est ex auo et tritauo, tunc primo desinit gaudere replicacione omnimoda et privilegio libertatis racione stipitis, ut si A. primo ingressus villenagium tenuerit de F. per villana servitia, deinde B. filius A., deinde C. filius B., deinde D. filius C., et sic tenuerint in villenagium de gradu in gradum usque ad quartum gradum de F. et heredibus suis, ille uillanus inuentus in quinto gradu descendente natiuus dicitur.' I am indebted for this passage to the kindness of Prof Maitland.

11. Britton, i. 196, 206.

12. Hale, Pleas of the Crown (ed. 1736), ii. 298, gives an interesting record from Edward I's reign, which shows that even the general theory was doubtful,

13. Dial. de Scacc. I. 10. p. 193: 'Ea propter pene quicumque sic hodie occisus reperitur, ut murdrum punitur, exceptis his quibus certa sunt ut diximus servilis condicionis indicia.' On the other hand the Dialogus lays stress on the fact, that if a villain's chattels get confiscated they go to the king and not to the lord (ii. 10. p. 222), but this is regarded as a breach of a general principle.

14. Glanville, xiv. I: 'Per ferrum callidum si fuerit homo liber, per aquam si fuerit rusticus.'

15. Lighter offences committed by the lord could not give rise to prosecution, but the persona standi in iudicio was admitted in a general way even in this case. A curious illustration of the different footing of villains in civil and criminal cases is afforded by a trial of Richard I's time. Richard of Waure brings an appeal against his man and reeve, Robert Thistleful, for conspiring with his enemies against his person. He offers to prove it against him, 'ut dominus, vel ut homo maimatus, sicut curia consideraverit.' Reeves were mostly villains, and the duty of serving as a reeve was considered as a characteristic of base condition. The lord probably goes to the King's court because he wants his man subjected to more severe punishment than he could inflict on him by his own power. (Rot. Cur. Regis Ricardi, 60.)

16. The lord had power over their property, but against everybody else they were protected by the criminal law.

17. Sometimes the system is used so as to enforce servitude. See Court Rolls of Ramsey Abbey. Augmentation Court Rolls, Edw. I, Portf 34, No. 46, m. 1 d. (Aylington): 'Adhuc dicunt quod Johannes filius Ricardi Dunning est tannator et manet apud Heyham, set dat per annum pro recognicione duos capones. Et quia potens est et habet multa bona, preceptum fuit Hugoni Achard et eius decennae ad ultimum visum ad habendum ipsum ad istam curiam, et non habuit. Ideo ipse et decenna sua in misericordia.' (This case is now being printed in Selden Soc. vol. Ii. p. 64.)

18. Bracton, 124 b: 'Quia omnis homo siue liber siue seruus, aut est aut debet esse in franco plegio aut de alicuius manupastu, nisi sit aliquis itinerans de loco in locum, qui non plus se teneat ad unum quam ad alium, vel quid habeat quod sufficiat pro franco plegio, sicut dignitatem vel ordinem vel liberum tenementum, vel in civitatem rem immobilem.' Nichols, Britton, i. 181, gives a note from Cambr. MS. Dd. vii. 6, to the effect that 'Villeins and naifs ought not to be in tithings, secundum quosdam.' This is certainly a misunderstanding, but it can hardly be accounted for either by the enfranchisement of the peasant or the decay of the frank pledge. I think the annotator may have seen the passages in Leg. Cnuti or Leg. Henrici I, which speak about free men joining the tithings, or speculated about the meaning of 'plegium liberale.' There could be no thought of excluding the villains in practice during the feudal period. As to the allusion in the Mirror of Justices, I shall refer to it in Appendix III.

19. See below, Essay I. chap. vi.

20. Bract. Note-book, pl. 1256: 'Et Ricardus dicit quod assisa non debet inde fieri quia predictus lohannes dedit terram illam cuidam uillano ipsius Ricardi, et ipse uillanus reddidit terram illam domino suo sicut emptam catallis domini sui, et quod ita ingressum habuit per uillanum illum in terram illam ponit se super iuratam.' Liber Assisarum, ann. 41. pl. 4. f 252. Shows that the statute de religiosis could be evaded by the lord entering into his villain's acquest. 'Levesque d'Exester port un Assise de no. diss. vers le tenaunt et Persey pur Leuesque en euidence dit, que un A. que fuit villeine le Evesque come de droit de sa Eglise purchase les tenements a luy et ses heyres et morust seisie, apres que mort entra B. come fitz et heire, sur que possession pur cause de villeinage entra Leuesque. Wich. Home de religion ne puit pas recoverer per assise terre si title de droit ne soit troue en luy, et ou le title que est trouue en Leuesque est pur cause de la purchace de son villein, en quel cas Leuesque ne fuit compellable de entre sil nust vola mes puit auer eu ses seruices, et le statute voit Quod terrae et tenementa ad manum mortuam nullo modo deueniant, per que il semble que nous ne possomus pas doner iudgement pur Leuesque en ceo cas. Sanke: de son villein ne puit il pas leuer ses seruices, ne accepter lesse par sa maine, car a ceo que ieo entend par acceptacion de homage ou de fealty per sa maine il serra enfraunchi, per quey necessite luy arcte dentre, et le statut nestoit pas fait mes de restreindre purchaus a faire de nouel, et non pas a defaire ceo qe fuit launcien droit dez eglises. Et sur ceo fuerent aiournes en common bank, et illonque le judgement done pur Leuesque sans difficultie,' etc. (See also the report of the same case in Y.B. Mich. 4I Edw. III, pl. 8. f 21.)

21. Bracton, f 25: 'Si... stipulatus sit servus sibi ipsi, et non domino, id non statim acquiritur domino, quamuis illud (corr. Ille) sit sub voluntate et potestate sua, antequam dominus apprehensus fuerit possessionem. Quod quidem impune facere poterit, si voluerit, propter exceptionem,' etc. Fitz. Abr. Vill. pl. 22 (Pasch. 35 Edw. III): 'Si le villen le roy purchase biens ou chatteux le properte de eux est en le roy sauns seisier. Mes auter est de auter home, etc. Mes sil purchas terre le roy doit seisier, etc. Car Thorp. dit que terre demurt terre tout temps, mes biens come boefs ou vache puit estre mange.'

22. Bracton, f 25 b: 'Sic constat, quod qui sub potestate alterius fuerit, dare poterit. Sed qualiter hoc cum ipse, qui ab aliis possidetur, nihil possidere possit? Ergo videtur quod nihil dare possit, quia non potest quis dare quod non habet, et nisi fuerit in possessione rei dandae. Respondeo, dare potest qui seisinam habet qualemcunque, et servus dare potest,' etc. In case of an execution for debt due to the king the goods of the villain were to be taken only when the lord's goods were exhausted. Dialog. de Scacc. Ii. 14. p. 229.

23. Bracton, f 190: 'Et non competit alicui hujusmodi exceptio de villenagio, praeterquam vero domino, nisi utrumque probet, scilicet quod villanus sit et teneat in villenagio, cum per hoc sequatur, quod ad ipsum non pertineat querela sive assisa, sed ad verum dominum, et ideo cadit assisa quantum ad personam suam et non quantum ad personam domini.' Cf Britton, i. 325.

24. Britton, i. 199; Littleton, 189; Bract. Note-book. pl. 1025: 'Assisa venit recognitura utrum una uirgata terre cum pertinenciis ln R. sit libera elemosina pertinens ad ecclesiam Magistri Iohannis de R. de R. an laicum feodum Gaufridi Beieudehe. Qui venit et dicit quod non debet inde assisa fieri quia antecessores sui feoffati.guerunt a conquestu Anglie ita quod tenerent de ecclesia illa et redderent ei per annum x. solidos..... Iuratores dicunt quod terra illa est feodum eiusdem ecclesie ita quod idem G. et antecessores sui semper tenuerunt de ecclesia... Et dicunt quod idem Gaufridus est natiuus Comitis Warenne et de eo tenet in uilenagio aliud tenementum. Postea uenit Gaufridus et cognouit quod est uillanus Comitis Warenne. Postea concordati sunt,' etc.

25. Example, Fitz. Abr. Villen. 16. The proper reply to such a plea is shown by Bract. Note-book, pl. 1833: 'Et Iohannes dicit quod hoc ei nocere non debet, quia quicquid idem dicat de uillenagio, ipsemet ut liber homo sine contradiccione domini sui terram illam dedit Iohanni del Frid patri istius Iohannis pro homagio et seruicio suo... Consideratum est quod predictus Iohannes recuperauit seisinam suam, et Richerus in misericordia.' Liber Assis. ann. 43. pl. I. f 265 gives the contrary decision: 'Lassise agarde et prise, per quel il fuit troue quil [le defendant] fuit villein al Counte... mes troue fuit ouster que le Counte ne fut unques seisie de la terre, ne onques claima riens en la terre, et troue fuit que le plaintif fuit seisie et disseisie. Et sur ceo, le quel le plaintif recouerer, Ou que le brief abateroit sont ajornes deuant eux mesmes a Westminster. A que jour per opinion de la Court le briefe abatu, per que le plaintif fuit non sue,' etc.

26. A different view is taken by Stubbs, i. 484.

27. Digby, Real Property, 3rd ed. p. 128. I may say at once that I fail to see any connexion between copyhold tenure and any express agreements between lord and villain.

28. Bracton, 192 b: 'Si autem dominus ita dederit sine manumissione, servo et heredibus suis tenendum libere, presumi poterit de hoc quod servum voluit esse liberum, cum aliter servus heredes habere non possit nisi cum libertate et ita contra dominum excipientem de villenagio competit ei replicatio.' Cf 23 b and Britton, i. 247; Fleta, 238; Littleton, secs. 205, 207.

29. Bracton, 24 b: 'Si autem in charta hoc tantum contineatur, habendum et tenendum tali (cum sit servus) per liberum servitium huiusmodi verba non faciunt servum liberum nec dant ei liberum tenementum... Quia tenementum nichil confert nec detrahit personae, nisi praecedat, ut dictum est, homagium vel manumissio, vel quod tantundem valet de concessione domini, scilicet quod villanus libere teneat et quiete et per liberum servitium, sibi et haeredibus suis. Si autem hoc solum dicatur, quod teneat per liberum servitium [sibi et heredibus suis], si ejectus fuerit a quocunque non recuperet per assisam noue disseisine, ut liberum tenementum, quia domino competit assisa et non villano. Si tamen dominus ipsum ejecerit, quaeritur, an contra dominum agere possit de conventione, cum prima facie non habet personam standi in judicio ad hoc, quod dominus teneat ei conventionem, videtur quod sic, propter factum domini sui, ut si agat de conventione, et dominus excipiat de servitute, replicare poterit de facto domini sui, sicut supra dicitur de feoffamento. Nec debent jura juvare dominum contra voluntatem suam, quia semel voluit conventionem, et quamvis damnum sentiat, non tamen fit ei injuria et ex quo prudenter et scienter contraxit cum servo suo, tacite renunciavit exceptionem villenagii.'

30. The freehold would be given and still, non recuperet per assisam no. diss. quia domino competit assisa et non villano.'

31. See my article, 'The Text of Bracton,' in the Law Quarterly Review, i. 189, et sqq.; and Maitland, Introduction to the Note-book of Bracton, 26 sqq.

32. The Cambridge MSS. have been inspected for me by Mr Maitland.

33. Comp. Bracton, f 194 b: 'Quia ex quo mentionem fecit de heredibus praesumitur vehementer, quod dominus voluit servum esse liberum quod quidem non esset, si de heredibus mentionem nonfecerit.'

34. Bracton, f 208 b: 'Est etiam villenagium non ita purum, sive concedatur libero homini vel villano ex conventione tenendum pro certis servitiis et consuetudinibus nominatis et expressis, quamvis servitia et consuetudines sunt villanae. Et unde si liber ejectus fuerit vel villanus manumissus vel alienatus (corr. alienus best MSS.) recuperare non poterunt ut liberum tenementum, cum sit villenagium et cadit assisa, vertitur tamen in juratam ad inquirendum de conventione propter voluntatem dimittentis et consensum, quia si quaerentes in tali casu recuperarint villenagium, non erit propter hoc domino lnjuriatum propter ipsius voluntatem et consensum, et contra voluntatem suam jura ei non subveniunt, quia si dominus potest villanum manumittere et feoffare multo fortius poterit ri quandam conventionem facere, et quia si potest id quod plus est, potest multo fortius id quod minus est.' We have here another difficulty with the text. The wording is so closely allied to the passage on 24 b. just quoted, and the last sentences seem to indicate so clearly that the case of a privileged villain is here opposed to manumission and feoffment, that the 'villanus manumissus vel alienus' looks quite out of place. Is it a later gloss? Even if it is retained, however, the passage points to a very material limitation of the lord's power. The holding in question can certainly not be described as being held 'at will'. To me the words in question look like a gloss or an addition, although very probably they were inserted early, perhaps by Bracton himself, who found it difficult to maintain consistently a villain's contractual rights against the lord. Another solution of the difficulty is suggested to me by Sir Frederick Pollock. He thinks 'villanus manumissus vel alienus, correct, and lays stress On the fact, that personal condition does not matter in this case: that even though the tenant be free or quoad that lord as good as free, the assize lies not and there shall only be an action on the covenant. If we accept this explanation which saves the words under suspicion, we shall have to face another difficulty: the text would turn from villanus (suus) to villanus alienus and back to villanus (suus) without any intimation that the subject under discussion had been altered.

35. The later practice is well known. Any agreement with a bondman led to a forfeiture of the lord's rights. It may be seen at a glance that such could not have been the original doctrine. Otherwise why should the old books lay such stress on the mention of heirs?

36. Besides the case from the Note-book which I discuss in the text, Bracton, f 199, is in point: 'Item esto quod villanus teneat per liberum servitium sibi tantum, nulla facta mentione de heredibus, si cum ejectus fuerit proferat assisam, et cum objecta fuerit exceptio villenagii, replicet quod libere teneat et petat assisam, non valebit replicatio, ex quo nulla mentio facta est de heredibus, quia liberum tenementum in hoc casu non mutat statum, si fuerit sub potestate domini constitutus. Ut in eodem itinere (in ultimo itinere Martini de Pateshull) in comitatu Essex, assisa noue disseisine, si Radulphus de Goggenhal.' The villain fails in his assize and there has been no manumission, still it seems admitted that in this case the villain has acquired liberum tenementum by the lord's act. How can this be except on the supposition that there is a covenant enforceable by the villain against the lord?

37. Bract. Note-book, pl. 1814: 'Nota quod filius villani recuperat per assisam noUe disseisine terram quam pater suus tenuit in villenagio quia dominus villani illam dedit filio suo per cartam suam eciam sine manumissione.'

38. F.W. Maitland tells me, that Concanen's Report of Rowe v. Brenton describes bond conventioners in Cornwall.

39. Bracton, f 6: 'Et in hoc legem habent contra dominos, quod stare possunt in judicio contra eos de vita et membris propter saevitiam dominorum, vel propter intollerabilem injuriam, ut si eos destruant, quod salvum non possit eis esse waynagium suum. [Hoc autem verum est de illis servis; qui tenent de antiquo dominico coronae, sed de aliis secus est, quia quandocunque placuerit domino, auferre poterit a villano suo waynagium suum et omnia bona sua.] Expedit enim reipublicae ne quis re sua male utatur.'

40. See my article in the L. Q. R., i. 195.

41. Bracton, f 196 202.

42. Coram Rege, 15 Edw. I, m. 18: '... licet habeant alia averia per que distringi possent distringit eos per averia de carucis suis quod est contra statutum domini Regis.' (Record Office.)

43. Spence, Equitable Jurisdiction, i. 136.

44. The Mirror of Justices, p. 110, follows Britton in this matter. This curious book is altogether very interesting on the subject of villeinage, but as its information is of a very peculiar stamp, I have not attempted to use it currently on the same level with other authorities. I prefer discussing it by itself in App. III.

45. Bracton, f 26 b, 200. Cf Bract. Note-book, pl. 141: 'Dicit quod tunc temporis scilicet in itinere iusticiariorum tenuit ipse quamdam terram in uillenagium quam emerat, et tunc coguouit quod terra illa fuit uillenagium, et precise defendit quod nunquam cognouit se esse uillanum.'

46. Britton, ii. 13; Y.B. 20/21 Edw. I, p. 41: 'Kar nent plus neit a dire, jeo tenk les tenements en vileynage de le Deen etc. ke neit a dire ke jeo tenk les tenements..... a la volunte le Deen etc.'

47. Bracton, f 168.

48. Ibid., f I99 b.

49. Palgrave, Rotuli Curiae Regis, ii. 192.

50. Placitorum Abbrev. 25, 29; Note-book, pl. 88. (The father is called Ailfricus in the Plea Roll Divers terms 2 John, 2 d., at the Record Office.)

51. Bract. Note-book, pl. 88.

52. Case 70: 'Consideratum est quod terra illa est uilenagium ipsius Hugonis (corr. Johannis), et quod si Martinus uoluerit terram tenere faciat consuetudines quas pater suus fecit, sin autem capiat terram suam in manum suam.'

53. Marginal remark in the Note-book to pl. 70: 'Nota quod liber homo potest facere uillanas consuetudines racione tenementi uillani set propter hoc non erit uillanus, quia potest relinquere tenementum.' Comp. Mr Maitland's note to the case.

54. Bracton, f 199 b: 'Unde videtur per hoc, quod licet liber homo teneat villenagium per villanas consuetudines, contra voluntatem suam ejici non debet, dum tamen facere voluerit consuetudines quae pertinent ad villenagium, et quae praestantur ratione villenagii, et non ratione personae.'

55. Cf. Blackstone's characteristic of copyholds: 'But it is the very condition of the tenure in question that the lands be holden only so long as the stipulated service is performed, quamdiu velint et possint facere debitum servitium et solvere debitas pensiones.' (Law Tracts, ii. 153.)

56. Bract. f 200.

57. Bract. Note-book, pl. 1103: 'Et ideo consideratum est quod Willelmus conuictus est de uilenagio et si facere uoluerit predictas consuetudines teneat illam bouatam terre per easdem consuetudines, sin autem faciat Bartholomeus de terra et de ipso Willelmo uoluntatem suam ut de uillano suo et ei liberatur Cf. Mr Maitland's note.

58. I should like to draw attention to one more case which completes the picture from another side. Bract. Note book, pl. 784: 'Symon de T. petit versus Adam de H. et Thomam P. quod faciant ei consuetudines et recta seruicia que ei facere debent de tenemento quod de eo tenent in uillenagio in T. Et ipsi ueniunt et cognoscunt quod uillani sunt. Et Symon concedit eis quod teneant tenementa sua faciendo inde seruicia quae pertinent ad uillenagium, ita tamen quod non dent plus in auxilium ad festum St. Mich. nec per annum quam duodecim denarios scilicet quilibet ipsorum et hoc nomine tallagii.' -- The writ of customs and services was out of place between lord and villain. The usual course was distraint. The case is clearly one of privileged villainage, but it is well to note that although the services are in one respect certain, the persons remain unfree.

59. Bracton, f 208 b.

60. Ibid., f 200.

61. Bract. Note-book, pl. 63: 'Dicunt quod idem W. nullum habuit liberum tenementum quia ipse uillanus fuit et fecit omnimoda uilenagia quia non potuit filiam suam maritare nec bouem suum uendere. 1819. R. de M. posuit se in magnam assisam Dom. Reg. In comitatu de consuetudinibus et seruiciis que Th. B. petit uersus eum, unde idem Th. exigebat ab eodem R. quod redderet ei de uillenagio per annum 19 den. et aruram trium dierum et messuram trium dierum... et gersumam pro filia sua maritanda et unam gallinam ad Natale et tot oua ad Pascha et tallagium et quod sit prepositus suus. Set quia illa sunt servilia et ad uillenagium spectancia et non ad liberum tenementum, consideratum est quod magna assisa non iacet inter eos, set fiat inquisicio per xii,' etc. Cf. 794, 1005, 1225, 1661.

62. Bract. Note-book, 281: 'Et Prior dicit quod in parte bene recordantur set in parte parum dicunt quia iuratores dixerunt quod debuit dare xii. den pro filia sua maritanda, et debuit plures alias consuetudines et petierunt respectum ut assensum habere possent a domino Roberto de Lexintona utrum hoc esset liberum tenementum ex quo sciunt quid debuit facere et quid non et nullum respectum habere potuerunt.'

63. Example-Bract. Note-book, pl. 1887. Fitzherbert, Abr. Villen. 38 (13 Ed. I): 'Quia predictus J. nullam probacionem producit neque sectam et cognoscit quod ille est in seisina... de patre predicti W. quem potuit produxisse ad probacionem, consideratum est quod predicti W. et R. liberi maneant.'

64. Bracton, f. 199. The jury came in only by consent of the parties.

65. Britton, i. 207; Fitzherbert, Abr. Villen. 37.

66. Court Rolls of Havering atte Bower, Essex, Augment. Off. Rolls, xiv. 38. (Curia-die Jovis proxima ante festum St. Bartholomaei Apostoli anno r. r. Ricardi II, 21mo.) 'Inquisicio... dicit... quod non est aliquis homo natiuus de sanguine ingressus feodum domini, set dicunt quod est quidam Johannes Shillyllg qui Sepius dictus fuerat natiuus. Et dicunt ultra quod qnidam Johannes Shillyng pater predicti Johannis fuit alienigena et quod predictus Johannes Shillyng quod ad eorum cognitionem est liber et libere condicionis et non natiuus.'

67. Fitzherbert, Abr. Villen. 32 (H. 19 Edw. II).

68. Ibid. 5 (13 Edw. I).

69. Fitzherbert, l.c.: 'E ce issu fuit trie par gents de paiis ou le maner est e nemi ou il nasquist par touts les justices.'

70. Rotuli Parliam. Ii. 192. Hargrave's argument in the Negro Somerset's case is very good on all these points. Howell, State Trials, xx. 38, 39.

71. Bracton, 201; Britton, i. 202 sq.

72. Bracton, f 6, and on many other occasions.

73. Co. Lit. 137, b. Cf. King Henry I's writ in favour of the Monastery of Abingdon. Bigelow, Placita Anglo-Normannica, 96: 'facias habere F. abbati omnes homines suos qui de terra sua exierunt propter herberiam curie mee.' Henry II puts it the other way, p 220.. 'Nisi sunt in dominio meo.'

74. A most curious pleading based on the conceptions of Glanville occurs in a Cor. Rege case of 10 Henry III, which was pointed out to me by F. Maitland. See App. IV. Mr York Powell suggests that the limitation may have originated in the fact, that in early times a man could no more give away a slave from his family estate without the consent of the family than he could give away the estate itself or part of it. There was no reason for such limitation in the case of a slave that had been bought with one's private money. Hence the necessity of selling a slave in order to emancipate him. The conjecture seems a very probable one, but the question remains, how such ancient practice could have left a trace in the feudal period. The explanation in the text may possibly account for the tenacity of the notion.

75. Note-book, pl. 31, 343.

76. Bracton, f. 194, 195. Bracton's text has been rendered almost unintelligible here by the careless punctuation of his editors, and Sir Travers Twiss' translation is as wrong and misleading as usual. I will just give the passage in accordance with the reading of Digby, 222 (Bodleian Libr.), which is the best of all the MSS. I have seen: 'Quia esto quod seruus uelit manumitti et cum nichil habeat proprium eligat fidem alicuius qui eum emat quasi pro denariis suis, per talem emptionem non consequitur emptus aliquam libertatem nisi tantum quod mutat dominum. In re empta in primis solui debet pretium, postea sequitur traditio rei: soluitur hic pretium pro natiuo, set nulla subsequitur traditio, sed semper manet in uillenagio quo prius. Si tenementum adquirat tenendum libere et heres manumissoris uel alius successor eum eiciat, si petat per assisam et heres opponat uillenagium, et villanus replicet de manumissione et emptione, heres triplicare poterit, quod imperfecta fuit emptio siue manumissio eo quod nunquam in uita uenditoris subsecuta fuit traditio, et ita talis semper remanebit sub potestate heredis.'

77. Note book, pl. 1749: 'Iudicatum est quod liber sit quantum ad heredem manumittentis et non quantum ad alios, quod iudicium non est uerum.'

 Chapter 3 — Ancient Demesne

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 manor.(1*) 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 Conquest.(2*) This includes manors which had been given away subsequently, and excludes such as had lapsed to the king after the Conquest by escheat or forfeiture.(3*) Possessions granted away by Saxon kings before the Conquest are equally excluded.(4*) 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 Conqueror.(5*) And so 1066 and not 1086 is the decisive year for the legal formation of this class of manors.(6*)

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 tenants;(7*) 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 cases.(8*) We often come across such base customs as the payment of merchet in connexion with the 'villain socmen' of ancient demesne.(9*) 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.

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 moot,(10*) they are not assessed with the rest for danegeld or common amercements or the murder fine,(11*) they are exempted from the jurisdiction of the sheriff,(12*) and do not serve on juries and assizes before the king's justices;(13*) they are free from toll in all markets and custom-houses.(14*) 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 right.(15*) 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 hand.(16*) 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 county,(17*) 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 hand.(18*) 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 income.(19*) 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.

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 sheriff.(20*)

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 close.'(21*)

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 villainage.(22*) 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 assize (23*) in land to ancient demesne, peculiarities which, however, are not universally found,(24*) 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 courts.(25*) Surely this could happen only because the tenure in ancient demesne, although a kind of villainage, closely resembled freehold.

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 other,(26*) and when a socman was opposed to his lord as a plaintiff.(27*) 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 jurisdiction.(28*)

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 court.(29*) 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 it.(30*) 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 demesne.(31*)

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 dower(32*) 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 arrangements.(33*)

Actions as to personal estate could be pleaded without writ, and as for the crown pleas they were reserved to the high courts.(34*) But even in actions regarding the soil a removal to these latter was not excluded.(35*) Evocation to a higher court followed naturally if the manorial court refused justice and such removal made the land frank fee.(36*) 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 higher.(37*) instances of examination and revision are frequent in our records.(38*) 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 usage;(39*) they allowed a great latitude for the peculiarities of customary law; but the difficulty was that a line had to be drawn somewhere.(40*) 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 it.(41*) 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 breve.(42*) 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 justices.(43*)

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,'(45*) 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 customs.(46*) 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 tenants.(46*) 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 writ.(47*) These exceptional features were evidently meant to facilitate the action of humble people against a powerful magnate.(48*) 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.

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 mons traverunt 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 subjects.(49*) Again, we find that the application for the writ by privileged villains is actually described as a plaint.(50*) 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 interests.(51*)

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 P