Villainage in England

Paul Vinogradoff

Second Essay: The Manor and the Village Community

Chapter 1 — The Open Field System and the Holdings

My first essay has been devoted to the peasantry of feudal England in its social character. We have had to examine its classes or divisions in their relation to freedom, personal slavery, and praedial serfage. The land system was touched upon only so far as it influenced such classification, or was influenced by it.

But no correct estimate of the social standing of the peasantry can stop here, or content itself with legal or administrative definitions. In no degree of society do men stand isolated, and a description of individual status alone would be thoroughly incomplete. Men stand arranged in groups for economical and political cooperation, and these groups are composed according to the laws of the division and hierarchical organisation of labour, composed, that is, of heterogeneous elements, of members who have to fulfil different functions, and to occupy higher and lower positions. The normal group which forms as it were the constitutive cell of English mediaeval society is the manor, and we must try to make out in what way it was organised, and how it did its work in the thirteenth century, at the time of fully developed feudalism.

The structure of the ordinary manor is always the same. Under the headship of the lord we find two layers of population the villains and the freeholders; and the territory occupied divides itself accordingly into demesne land (1*) and 'tributary land' (if I may use that phrase) of two different classes. The cultivation of the demesne depends to a certain extent on the work supplied by the tenants of the tributary land. Rents are collected, labour supervised, and all kinds of administrative business transacted, by a set of manorial officers or servants. The entire population is grouped into a village community which centres round the manorial court or halimote, which is both council and tribunal. My investigation will necesarily conform to this typical arrangement. The holding of the peasant is the natural starting-point: it will give us the clue to the whole agrarian system. Next may come that part of the territory which is not occupied in severalty, but used in common. The agrarian obligations with regard to the lord and the cultivation of the demesne land may be taken up afterwards. The position of privileged people, either servants or freeholders, must be discussed by itself, as an exceptional case. And, lastly, the question will have to be put to what extent were all these elements welded together in the village community, and under the sway of the manorial court?

The chief features of the field-system which was in operation in England during the middle ages have been sufficiently cleared up by modern scholars, especially by Nasse, Thorold Rogers, and Seebohm, and there is no need for dwelling at length on the subject. Everybody knows that the arable of an English village was commonly cultivated under a three years' rotation of crops;(2*) a two field system is also found very often;(3*) there are some instances of more complex arrangements,(4*) but they are very rare, and appear late-not earlier than the fourteenth century. Walter of Henley's treatise on farming, which appears to belong to the first half of the thirteenth, mentions only the first two systems, and its estimate of the plough-land is based on them. In the case of a three field rotation a hundred and eighty acres are reckoned to the plough; a hundred and sixty in a system of two courses.(5*) We find the same estimate in the chapters on husbandry and management of an estate which are inserted in the law-book known as Fleta.(6*) The strips in the fields belonging to the several tenants were divided by narrow balks of turf, and when the field lay fallow, or after the harvest had been removed, the entire field was turned into a common pasture for the use of the village cattle. The whole area was protected by an inclosure while it was under crop.

A curious devation is apparent in the following instance, taken from the cartulary of Malmesbury. The Abbey makes an exchange with a neighbour who has rights of common on some of the convent's land, and therefore does not allow of its being cultivated and inclosed (inhoc facere). In return for certain concessions on the part of the Abbey, this neighbouring owner agrees that fallow pasture should be turned into arable on the condition that after the harvest it should return to common use, as well as the land not actually under seed. Lastly comes a provision about the villains of the person entering into agreement with the Abbey: if they do not want to conform to the new arrangement of cultivation, they will be admitted to their strips for the purpose of ploughing up or using the fallow.(7*) The case is interesting in two respects: it shows the intimate connexion between the construction of the inclosure (inhoc) and the raising of the crop; the special paragraph about the villains gives us to understand that something more than the usual rotation of crops was meant: the 'inhokare' appears in opposition either to the ordinary ploughing up of the fallow, or in a general sense to its use for pasture; it seems to indicate extra-cultivation of such land as ought to have remained uncultivated. These considerations are borne out by other documents. In a trial of Edward I's time the 'inheche' is explained in as many words as the ploughing up of fallow for a crop of wheat, oats, or barley.(8*) The Gloucester Survey, in describing one of the manors belonging to the Abbey, arranges its land into four fields (campi), each consisting of several parts: the first field is said to contain 174 acres, the second 63, the third 109, the fourth 69 acres. Two-thirds of the whole are subjected to the usual modes of cultivation under a three-course system, and one-third remains for pasture. But out of this last third, 40 acres of the first field (of 174 acres) get inclosed and used for crop in one year, and 20 acres of the second in another.(9*) In tis way the ordinary three-course alternation becomes somewhat more complicated, and it will be hardly too bold a guess to suppose that such extra-cultivation implied some manuring of such patches as were deprived of their usual rest once in three years. In contradiction to the customary arrangement which did not require any special manuring except that which was incident to the use of arable as pasture for the cattle after the harvest, we find plots set apart for more intense cultivation,(10*) and it is to be noticed that the reckoning in connexion with them does not start from the division according to three parts, but supposes a separate classification in two sections.

Another fact worth noticing in the Gloucester instance is the irregular distribution of acres in the 'fields,' and the division of the entire arable into four unequal parts. The husbandry is conducted on the three-course system, and still four fields are mentioned, and there is no simple relation between the number of acres which they respectively contain (174, 63, 109, 69). It seems obvious that the expression 'field' (campus) is used here not in the ordinary sense suggested by such records as spring-field, winter-field, and the like, but in reference to the topography of the district. The whole territory under cultivation was divided into a number of squares or furlongs which lay round the village in four large groups. The alternation of crops distributed the same area into three according to a mode not described by the Survey, and it looks proVable at first glance that each of the 'fields' (campi) contained elements of all three courses. The supposition becomes a certainty, if we reflect that it gives the only possible explanation of the way in which the twofold alternation of the 'inhoc' is made to fit with the threefold rotation of crops: every year some of the land in each campus had to remain in fallow, and could be inclosed or taken under 'inhoc.' Had the campus as a whole been reserved for one of the three courses, there would have een room for the 'inhoc' only every three years.

I have gone into some details in connexion with this instance because it presents a deviation from ordinary rules, and even a deviation from the usual phraseology, and it is probable that the exceptional use of words depended on the exceptional process of farming. A new species of arable -- the manured plot under 'inhoc' -- came into use, and naturally disturbed the plain arrangement of the old-fashioned three courses; the lands had to be grouped anew into four sections which went under the accustomed designation of 'fields,' although they did not fit in with the 'three fields' of the old system. In most cases, however, our records use the word 'field' (campus) in that very sense of land under one of the 'courses,' which is out of the question in the case taken from the Gloucester Cartulary. The common use is especially clear when the documents want to describe the holding of a person, and mention the number of acres in each 'field.' The Abbot of Malmesbury, e.g., enfeoffs one Robert with a virgate formerly held 'in the fields' by A., twenty-one acres in one field and twenty-one in another.(11*) The charter does not contain any description of campi in the territorial sense, and it is evident that the expression 'in the fields' is meant to indicate a customary and well-known husbandry arrangement. The same meaning must be put on sentences like the following: -- R.A. holds a virgate consisting of forty-two acres in both fields.(12*) The question may be raised whether we have to look for 'both fields' in the winter and springfield of the three courses rotation, or in the arable and fallow of the two courses. In the first of these eventualities, the third reserved for pasture and rest would be left out of the reckoning; it would be treated as an appurtenance of the land that was in cultivation. Cases in which the portions in the several fields are unequal seem to point to the second sense.(13*) It was impossible to divide the whole territory under cultivation likea piece of paper: conformation of the soil had, of course, much to do with the shape of the furlongs and their distribution, and the courses of the husbandry could not impress themselves on it without some inequalities and stray remnants. It may happen for this reason that a man holds sixteen acres in one field and fourteen in the other. There is almost always, however, a certain correspondence between the number of acres in each field; instances of very great disparity are rare, and suppose some local and special reasons which we cannot trace. Such disparities seem to point, however, to a rotation according to two courses, because the fallow of the three courses could have been left out of the reckoning only if all the parts in the fields were equal.(14*) I think that a careful inspection of the surveys from this point of view may lead to the conclusion that the two courses rotation was very extensively spread in England in the thirteenth century.

A most important feature of the mediaeval system of tillage was its compulsory character. The several tenants, even when freeholders, could not manage their plots at their own choice.(15*) The entire soil of the township formed one whole in this respect, and was subjected to the management of the entire village. The superior right of the community found expression in the fact that the fields were open to common use as pasture after the harvest, as well as in the regulation of the modes of farming and order of tillage by the township. Even the lord himself had to conform to the customs and rules set up by the community, and attempts to break through them, although they become frequent enough at the close of the thirteenth century, and especially in the fourteenth, are met by a resistance which sometimes actually leads to litigation.(16*) The freeholders alone have access to the courts, but in practice the entire body of the tenantry is equally concerned. The passage towards more efficient modes of cultivation was very much obstructed by these customary rules as to otation of crops, which flow not from the will and interest of single owners, but from the decision of communities.

The several plots and holdings do not lie in compact I patches, but are formed of strips intermixed with each other. The so-called open-field system has been treated so exhaustively and with such admirable clearness by Seebohm, that I need not detain my readers in order to discuss it at length. I shall merely take from the Eynsham Cartulary the general description of the arable of Shifford, Oxon. It consists of several furlongs or areas, more or less rectangular in shape; each furlong divided into a certain number of strips (seliones), mostly half an acre or a rood (quarter acre) in width; some of these strips get shortened, however (seliones curtae), or sharpened (gorae), according to the shape of the country. At right angles with the strips in the fields lie the 'headlands' (capitales), which admit to other strips when there is no special road for the purpose.(17*) When the area under tillage abuts against some obstacles, as against a highway, a river, a neighbouring furlong, the strips are stunted (buttae). Every strip is separated from the next by balks on even ground, and linches on the steep slopes of a hill. The holding of a peasant, free or villain, has been appropriately likened to a bundle of these strips of different shapes, the component parts of which lie intermixed with the elements of other holdings in the different fields of the township. There is e.g. in the Alvingham Cartulary a deed by which John Aysterby grants to the Priory of Alvingham in Lincolnshire his villain Robert and half a bovate of land.(18*) The half-bovate is found to consist of twelve strips west of Alvingham and sixteen strips east of the village; the several plots lie among similar plots owned by the priory and by other peasants. The demesne land of the priory is also situated not in compact areas, but in strips intermixed with those of the tenantry, in the 'communal fields' according to the phraseology of ou documents.

Such a distribution of the arable seems odd enough. It led undoubtedly to very great inconvenience in many ways: it was difficult for the owner to look after his property in the several fields, and to move constantly from one place to another for the purposes of cultivation. A thrifty husbandman was more or less dependent for the results of his work on his neighbours, who very likely were not thrifty. The strips were not always measured with exactness,(19*) and our surveys mention curious misunderstandings in this respect: it happens that as much as three acres belonging to a particular person get mislaid somehow and cannot be identified.(20*) It is needless to say that disputes among the neighbours were rendered especially frequent by the rough way of dividing the strips, and by the cutting up of the holdings into narrow strips involving a very long line of boundary. And still the open-field system, with the intermixed strips, is quite a prevalent feature of mediaeval husbandry all over Europe. It covers the whole area occupied by the village community; it is found in Russia as well as in England.

Before we try to find an explanation for it, I shall call the attention of the reader to the following tale preserved by an ancient survey of Dunstable Priory. I think that the record may suggest the explanation with the more authority as it will proceed from well-established facts and not from suppositions.(21*) The story goes back to the original division of the land belonging to the Wahull manor by the lords de Wahull and de la Lege. The former had to receive two-thirds of the manor and the latter one-third: a note explains this to mean, that one had to take twenty knight-fees and the other ten. The lord de Wahull took all the park in Segheho and the entire demesne farm in 'Bechebury'. As a compensation for the surrender of rights on the part of his fellow parcener, he ordered the wood and pasture called Northwood to be measured, as also the neighbouring wood called Churlwood. He removed all the peasants who lived in these places, and had also the arable of Segheho measured, and it was found that there were eight hides of villain land. Of these eight hides one-fourth was taken, and it was reckoned that this fourth was an equivalent to the one-third of the park and of the demesne farm, which ought by right to have gone to the lord de la Lege. On the basis of this estimation an exchange was effected. In the time of the war (perhaps the rebellion of 1173) the eight hides and other hides in Segheho were encroached upon and appropriated unrighteously by many, and for this reason a general revision of the holdings was undertaken before Walter de Wahull and Hugh de la Lege in full court by six old men; it was made out to which of the hides the several acres belonged. At that time, when all the tenants in Segheho (knights, freeholders, and others) did not know exactly about the land of the village and the tenements, and when each man was contending that his neighbours held unrighteously and more than they ought, all the people decided by common agreement and in the presence of the lords de Wahull and de la Lege, that everybody should surrender his land to be measured anew with the rood by the old men as if the ground had been occupied afresh: every one had to receive his due part on consideration of his rights. At that time R.F. admitted that he and his predecessors had held the area near the castle unrighteously. The men in charge of the distribution divided that area into sixteen strips (buttos), and these were divided as follows: there are eight hides of villain land in Segheho and to each two strips were apportioned.

The narrative is curious in many respects. it illustrates beautifully the extent to which the intermixture of plots was carried, and the inconveniences consequent upon it. Although the land had been measured and divided at the time when the lord de Wahull took the land, everything got into confusion at the time of the civil war, and the disputes originated not in violence from abroad but inencroachments of the village people among themselves: the owners of conterminous strips were constantly quarrelling. A new division became necessary, and it took place under circumstances of great solemnity, as a result of an agreement effected at a great meeting of the tenantry before both lords. The new distribution may stand for all purposes in lieu of the original parcelling of the land on fresh occupation. The mode of treating one of the areas shows that the intermixture of the strips was a direct consequence of the attempt to equalise the portions. instead of putting the whole of this area into one lot, the old men divide it into strips and assign to every great holding, to every hide, two strips of this area. Many inconveniences follow for some of the owners, e.g. for the church which, it is complained, cannot put its plot to any use on account of its lying far away, and in intermixture with other people's land. But the guiding principle of equal apportionment has found a suitable expression.

We may turn now from the analysis of this case to general considerations. The important point in the instance quoted was, that the assignment of scattered strips to every holding depended on the wish to equalise the shares of the tenants. I think it may be shown that the treatment adopted in Segheho was the most natural, and therefore the most widely-spread one. To begin with, what other form of allotment appears more natural in a crude state of society? To employ a simile which I have used already, the territory of the township is not like a homogeneous sheet of paper out of which you may cut lots of every desirable shape and size: the tilth will present all kinds of accidental features, according to the elevation of the ground, the direction of the watercourses and ways, the quality of the soil, the situation of dwellings, the disposition of wood and pasture-ground, etc. The whole must needs be dismembered into component parts, into smaller areas or furlongs, each stretching over land of one and the same conditon, and separated from land of different quality and situation. Over the irregular squares of this rough chess-board a more or less entangled network of rights and interests must be extended. There seem to be only two ways of doing it: if you want the holding to lie in one compact patch you will have to make a very complicated reckoning of all the many circumstances which influence husbandry, will have to find some numerical expression for fertility, accessibility, and the like; or else you may simply give every householder a share in every one of the component areas, and subject him in this way to all the advantages and drawbacks which bear upon his neighbours. If the ground cannot be made to fit the system of allotment, the system must conform itself to the ground. There can be no question that the second way of escaping from the difficulty is much the easier one, and very suitable to the practice of communities in an early stage of development. This second way leads necessarily to a scattering and an intermixture of strips. The explanation is wide enough to meet the requirements of cases placed in entirely different local surroundings and historical connexions; the tendency towards an equalising of the shares of the tenantry is equally noticeable in England and in Russia, in the far west and in the far east of Europe. In Russia we need not even go into history to find it operating in the way described; the practice is alive even now.

This intermixture of strips in the open fields is also characteristic in another way: it manifests the working of a principle which became obliterated in the course of history, but had to play a very important part originally. It was a system primarily intended for the purpose of equalising shares, and it considered every man's rights and property as interwoven with other people's rights and property: it was therefore a system particularly adapted to bring home the superior right of the community as a whole, and the inferior, derivative character of individual rights. The mos complete inference from such a general conception would be to treat individual occupation of the land as a shifting ownership, to redistribute the land among the members of the community from time to time, according to some system of lot or rotation. The western village community does not go so far, as a rule, in regard to the arable, at least in the time to which our records belong. But even in the west, and particularly in England, traces of shifting ownership, 'shifting severalty,' may be found as scattered survivals of a condition which, if not general, was certainly much more widely spread in earlier times.(22*) The arable is sometimes treated as meadows constantly are: every householder's lot is only an 'ideal' one, and may be assigned one year in one place, and next year in another. The stubborn existence of intermixed ownership, even as described by feudal and later records, is in itself a strong testimony to the communal character of early property. The strips of the several holders were not divided by hedges or inclosures, and a good part of the time, after harvest and before seed, individual rights retreated before common use; every individualising treatment of the soil was excluded by the compulsory rotation of crops and the fact that every share consisted of a number of narrow strips wedged in among other people's shares. The husbandry could not be very energetic and lucrative under such pressure, and a powerful consideration which kept the system working, against convenience and interest, was its equalising and as it were communal tendency. I lay stress on the fact: if the open-field system with its intermixture had been merely a reflection of the original allotment, it would have certainly lost its regularity very soon. People could not be blind to its drawbacks from the point of view of individual farming; and if the single strips had become private property as soon as they ceased to be shifting, exchanges, if not sales, would have greatly destroyed the inconvenient network. The lord had no inteest to prevent such exchanges, which could manifestly lead to an improvement of husbandry,. and in regard to his own strips, he must have perceived soon enough that it would be better to have them in one compact mass than scattered about in all the fields. And still the open-field intermixture holds its ground all through the middle ages, and we find its survivals far into modern times. This can only mean, that even when the shifting, 'ideal,' share in the land of the community had given way to the permanent ownership by each member of certain particular scattered strips, this permanent ownership did by no means amount to private property in the Roman or in the modern sense. The communal principle with its equalising tendency remained still as the efficient force regulating the whole, and strong enough to subject even the lord and the freeholders to its customary influence. By saying this I do not mean to maintain, of course, that private property was not existent, that it was not breaking through the communal system, and acting as a dissolvent of it. I shall have to show by-and-by in what ways this process was effected. But the fact remains, that the system which prevailed upon the whole during the middle ages appears directly connected in its most important features with ideas of communal ownership and equalised individual rights.

These ideas are carried out in a very rough way in the mediaeval arrangement of the holding, which is more complicated in England than on the continent. According to a very common mode of reckoning, the hide contains four virgates, every virgate two bovates, and every bovate fifteen acres. The bovate (oxgang) shows by its very name that not only the land is taken into account, but the oxen employed in its tillage, and the records explain the hide or carucate (23*) to be the land of the eight-oxen plough, that is so much land as may be cultivated by a plough drawn by eight oxen. The virgate, or yard-land, being the fourth part of a hide, corresponds to one-fourth part of the ploug, that is, to two oxen, contributed by the holder to the full plough-team; the bovate or oxgang appears as the land of one ox, and the eighth part of the hide.(24*) Such proportions are, as I said, very commonly found in the records, but they are by no means prevalent everywhere. On the possessions of Glastonbury Abbey, for instance, we find virgates of forty acres, and a hide of 160; and the same reckoning appears in manors of Wetherall Priory, Westmoreland,(25*) of the Abbey of Eynsham, Oxfordshire,(26*) and many other places.

The so-called Domesday of St. Paul's reports,(27*) that in Runwell eighty acres used to be reckoned to the hide, but in course of time new land was acquired (for tillage) and measured, and so the hide was raised to 120 acres. Altogether the supposition of an uniform acre-measurement of bovates, virgates, hides, and knights' fees all over England would be entirely misleading. The oxen were an important element in the arrangement, but, of course, not the only one. The formation of the holding had to conform also to the quality of the soil, the density of the population, etc. We find in any case the most varying figures. The knight's fee contained mostly four or five full ploughs or carucates, and still in Lincolnshire sixteen carucates went to the knight's fee.(28*) The carucate was not identical with the hide, but carucate and hide alike had originally meant a unit corresponding to a plough-team. Four virgates were mostly reckoned to the hide, but sometimes six, eight, seven are taken.(29*) The yardlands (virgates) or full lands, as they are sometimes called, because they were considered as the typical peasant holdings, consist of fifteen, sixteen, eighteen, twenty-four, forty, forty-eight, fifty, sixty-two, eighty acres, although thirty is perhaps the figure which appears more often than any other.(30*) Bovates of ten, twelve, and sixteen acres are to be found in the same locality.(31*) We cannot even seize hold of the acre as the one constant unit among these many variables; the siz of the acre itself varied from place to place. In this way any attempt to establish a normal reckoning of the holdings will not only seem hazardous, but will actually stand in contradiction with patent facts.

Another circumstance seems of yet greater import: even within the boundaries of one and the same community the equality was an agrarian one and did not amount to a strict correspondence in figures. It was obviously impossible to cut up the land among the holdings in such a way as to make every one contain quite the same number of acres as the rest. In the Cartulary of Ramsey it is stated, that in one of the manors the virgate contains sometimes forty-eight acres and sometimes less.(32*) The Huntingdon Hundred Rolls mentions a locality where some of the half-virgates have got houses on their plots and some have not.(33*) In the Dorsetshire manor of Newton, belonging to Glastonbury, we find a reduction of the duties of one of the virgates because it is a small one.(34*) A curious instance is supplied by the same Glastonbury survey as to the Wiltshire manor of Christian Malford: one of the virgates was formed out of two former virgates, which were found insufficient to support two separate households.(35*)

This last case makes it especially clear that the object was to make the shares on the same pattern in point of quality, and not of mere quantity. It is only to be regretted that manorial surveys, hundred rolls, and other documents of the same kind take too little heed of such variations, and consider the whole arrangement merely in regard to the interests of the landlord. For this purpose a rough quantitative statement was sufficient. They give very sparing indications as to the facts underlying the system of holdings; their aim is to reduce all relations to artificial uniformity in order to make them a fitter basis for the distribution of rents and labour services. But very little attention is required to notice a very great difference between such figures and reality. In most of the cases, when te virgate is described in its component parts, we come across irregularities. Again, each component part is more or less irregular, because instead of the acres and half-acres the real ground presents strips of a very capricious shape. And so we must come to the conclusion, that the hide, the virgate, the bovate, in short every holding mentioned in the surveys, appears primarily as an artificial, administrative, and fiscal unit which corresponds only in a very rough way to the agrarian reality.

This conclusion coincides with the most important fact, that the reckoning of acres in regard to the plough-team is entirely different in the treatises on husbandry from what it is in the manorial records drawn up for the purpose of an assessment of duties and payments. Walter of Henley and Fleta reckon 180 acres to the plough in a three-field system, and 160 in a two-field system. Now these figures are quite exceptional in surveys, whereas 120 acres is most usual without any distinction as to the course of rotation of crops. The relation between the three-field ploughland of 180 acres and the hide of 120 suggests the inference that the official assessment started from the prevalence of the three-field rotation, and disregarded the fallow. But the inference is hardly sufficient to explain the facts of the case. The way towards a solution of the problem is indicated by the terminology of the Ely surveys in the British Museum. These documents very often mention virgates and full yardlands of twelve acres de ware; on the other hand, the Court Rolls from Edward I's time till Elizabeth's, and a survey of the reign of Edward III, show the virgate to consist of twenty-four acres.(36*) The virgate de ware corresponds usually to one-half of the real virgate; I say usually, because in one case it is reckoned to contain eighteen acres in the place of twenty-four mentioned in the rolls and the later survey.(37*) Such 'acre ware' are to be found, though rarely, in other manors besides those of Ely minster.(38*) The contradiction btween the documents may be taken at first glance to originate in a difference between the number of acres under actual tillage and the number of acres comprised in the holding: perhaps the first reckoning leaves out the fallow. This explanation has been tried by Mr O. Pell, the present owner of one of the Ely manors he started it in connexion with an etymology which brought together 'ware' and 'warectum': on this assumption twelve acres appeared instead of twenty-four, because the fallow of the two-field system was left out of the reckoning. But this reading of the evidence does not seem satisfactory. It is one-sided at the least. Why should the holding from which the 'warectum' has been left out get its name from the 'warectum'? How is one to explain either from the two-field or from the three-field system the case when eighteen 'acre ware' correspond to twenty-four common acres, or the even more perplexing case when eighteen acres of 'ware' go to the full land and twelve to half-a-full land?(39*) In fact, this last instance does not admit of any explanation from natural conditions, because in the natural course of things twelve will never come to be one-half of eighteen. Thus we are driven to assume that the 'ware' reckoning is an artificial one: as such it could, of course, treat the half-holdings in a different way from the full holdings. Now the only possible basis for an artificial distribution seems to be the assessment of rents and labour. Starting from this assumption we shall have to say that the virgate 'de wara' represents a unit of assessment in which twelve really existing acres have been left out of the reckoning. The assessment stretches only over half the area occupied by the real holding.

The conclusion we have come to is corroborated by the meaning of the word 'wara.' The etymological connexion with warectum is not sound; the meaning may be best brought out by a comparison with those instances where the word is used without a direct reference to the number of acres. We often find the expresion 'ad inwaram' in Domesday, and it corresponds to the plain 'ad gildam Regis'. If a manor is said to contain seven hides ad inwaram, it is meant that it pays to the king for seven hides, although there may have been more than seven ploughteams and ploughlands. Another expression of like import is, 'pro sextem hidis se defendit erga Regem.' The Burton Cartulary, the earliest survey after Domesday, employed the word 'wara' in the same sense.(40*) It is not difficult to draw the inference from the above-mentioned facts: the etymological connexion for 'wara' is to be sought in the German word for defence -- 'wehre.' The manor defends itself or answers to the king for seven hides. The expression could get other special significations besides the one discussed: we find it for the poll-tax, by which a freeman defends himself in regard to the state,(41*) and for the weir, which prevents the fish from escaping into the river.(42*)

This origin and use of the term is of considerable. importance, because it shows the artificial character of the system and its close connexion with the taxation by the State. This is a disturbing element which ought to be taken into account by the side of the agrarian influence. There cannot be the slightest doubt that the assessment started from actual facts, from existing agrarian conditions and divisions. The hide, the yardland, the oxgang existed not only in the geld-rolls, but in fact and on the ground. But in geld-rolls they appeared with a regularity they did not possess in real fact; the rolls express all modifications in the modes of farming and all exemptions, not in the shape of any qualification or lighter assessment of single plots, but by way of striking off from the number of these plots, or from the number of acres in them; the object which in modern times would be effected by the registration of a 'rateable value' differing from the 'actual value' was effected in ancient times by the registration of a 'rateable size' differing from the 'actual size'; lastly, the surveysand rolls of assessment do not keep time with the actual facts, and often reflect, by their figures and statistics, the conditions of bygone periods. The hides of the geld or of the 'wara' tend to become constant and rigid: it is difficult for the king's officers to alter their estimates, and the people subjected to the tax try in every way to guard against novelties and encroachments. The real agrarian hide-area is changing at the same time because the population increases, new tenements are formed, and new land is reclaimed.

We find at every step in our records that the assessment and the agrarian conditions do not coincide. If a manor has been given to a convent in free almoign (in liberam et perpetuam eleemosynam), that is, free from all taxes and payments to the State, there is no reason to describe it in units of assessment, and in fact such property often appears in manorial records without any 'hidation' or reckoning of knight-fees.(43*) The Ramsey Cartulary tells us that the land in Hulme was not divided into hides and virgates.(44*) There are holdings, of course, and they are equal, but they are estimated in acres. When the hidation has been laid on the land and taxes are paid from it, the smaller subdivisions are sometimes omitted: the artificial system of taxation does not go very deep into details. Even if most part of the land has been brought under the operation of that system, some plots are left which do not participate in the common payments, and therefore are said to be 'out of the hide'.(45*) Such being the case, there can be no wonder that one of the Ramsey manors answers to the king for ten hides, and to the abbot for eleven and a-half.(46*)

It is to be noted especially, that although in a few cases a difference is made between the division for royal assessment and for the manorial impositions, in the great majority of cases no such difference exists, and the duties in regard to the king and to the lord are reckoned according to the same system of holdings. On the manors of Ely, forinstance, the 12 acreware (47*) form the basis of all the reckoning of rents and work. And so if the royal assessment appear with the features of an artificial fiscal arrangement, the same observation has to be extended to the manorial assessment; and thus we reach by another way the same conclusion which we drew from an analysis of the single holding and of its component parts. No doubt the whole stands in close relation to the reality of cultivation and land-holding, but the rigidity, regularity, and correctness of the system present a necessary contrast to the facts of actual life. As the soil could not be made to fit into geometrical squares, even so the population could not remain without change from one age to the other within the same boundaries. Thus in course of time the plough-land of 160 and 180 acres, which is the plough-land of practical farming, appears by the side of the statutory hide of 120 acres; and so again inside every single holding there comes up the contrast between its real conformation and distribution, and the outward form it assumed in regard to the king, the lord, and the steward.

The inquiry as to the relation between the holding and the population on it is, of course, of the utmost importance for a general estimate of the arrangement. From a formal point of view the question is soon solved: on the one hand, the holding of the villain remains undivided and entire; it does not admit of partition by sale or descent; on the other, the will of the lord may alter, if necessary, the natural course of inheritance and possession; the socage tenure is often free from the first of these limitations, and always free from the second. The indivisibility of villain tenements is chiefly conspicuous in the law of inheritance: all the land went to one of the sons if there were several; very often the youngest inherited; and this custom, to which mere chance has given the name of Borough English, was considered as one of the proofs of villainage.(48*) It is certainly a custom of great importance,and probably it depended on the fact that the elder brothers left the land at the earliest opportunity, and during their father's life. Where did they go? It is easy to guess that they sought work out of the manor, as craftsmen or labourers; that they served the lord as servants, ploughmen, and the like; that they were provided with holdings, which for some reason did not descend to male heirs; that they were endowed with some demesne land, or fitted out to reclaim land from the waste. We may find for all these suppositions some supporting quotation in the records. And still it would be hard to believe that the entire increase of population found an exit by these by-paths. If no exit was found, the brothers had to remain on their father's plot, and the fact that they did so can be proved, if it needs proof, from documents.(49*) The unity of the holding was not disturbed in the case; there was no division, and only the right heir, the estiopamon as they said in Sparta, had to answer for the services; the lord looked to him and no further; but in point of fact the holding contained more than one family, and perhaps more than one household. However this may be, in regard to the lord the holding remained one and undivided. This circumstance draws a sharp line between the feudal arrangement of most counties and that which prevailed in Kent. The gavelkind or tributary tenure there was subjected to equal partition among the heirs.

Let us take a Kentish survey, the Black Book of St. Augustine's, Canterbury, for instance: it describes the peasant holdings in a way which differs entirely from other surveys. It begins by stating what duties lie on each sulung, that is, on the Kentish ploughland corresponding to the hide of feudal England. No regular sub-divisions corresponding to the virgates and bovates are mentioned, and the reckoning starts not from separate tenements, but from their combination into sulungs.(50*) Then follow descriptions of the single sulungs, and it turns out that every one of them consists of a vry great number of component parts, because the progeny of the original holders has clustered on them, and parcelled them up in very complicated combinations.(51*) The portions are sometimes so small, that an independent cultivation of them would have been quite impossible. In order to understand the description it must be borne in mind that the fact of the tenement being owned by several different persons in definite but undivided shares did not preclude farming in common; while on the other hand, in judging of the usual feudal arrangement of holdings we must remember that the artificial unity and indivisibility of the tenement may be a mere screen behind which there exists a complex mass of rights sanctioned by morality and custom though not by law. The surveys of the Kentish possessions of Battle Abbey are drawn up on the same principle as those of St. Augustine's; the only difference is, that the individual portions are collected not in sulungs, but in yokes (juga).(52*)

And so we have in England two systems of dividing the land of the peasant, of regulating its descent and its duties. In one case the tenant-right is connected with rigid holdings descending to a single heir; in another the tenements get broken up, and the heirs club together in order to meet the demands of the manorial administration. The contrast is sharp and curious enough. How is one to explain, that in conditions which were more or less identical, the land was sometimes partitioned and sometimes kept together, the people were dispersed in some instances and kept together in others?

Closer inspection will show that however sharp the opposition in law may have been, in point of husbandry and actual management the contrast was not so uncompromising. Connecting links may be found between the two. The Domesday of St. Paul's, for instance, is compiled in the main in the usual way, but one section of it -- the description of the Essex manors of Kirby, Horlock, and Thorpe -- does not differ from the Kentish surveys in anything but the terminology.(53*) The services are laid on hides, and not on the actual tenements. Each hide includes a great number of plots which do not fall in with any constant subdivisions of the same kind as the virgates and bovates. Some of these plots are very small, all are irregular in their formation. It happens that one and the same person holds in several hides. In one word, the Kentish system has found a way for some unexplained reason into the possessions of St. Paul's, and we find subjected to it some Essex manors which do not differ much in their husbandry arrangements from other properties in Essex, and have no claim to the special privileges of Kentish soil.

Once apprised of the possible existence of such inter mediate forms, we shall find in most surveys facts tending to connect the two arrangements. The Gloucester Cartulary, for instance, mentions virgates held by four persons.(54*) The plots of these four owners are evidently brought together into a virgate for the purpose of assessing the services. Two peasants on the same virgate are found constantly. It happens that one gets the greater part of the land and is called the heir, while his fellow appears as a small cotter who has to co-operate in the work performed by the virgate.(55*) Indications are not wanting that sometimes virgates crumbled up into cotlands, bordlands, and crofts. The denomination of some peasants in Northumberland is characteristic enough -- they are 'selfoders,' obviously dwelling 'self-other' on their tenements.(56*) On the other hand, it is to be noticed that the gavelkind rule of succession, although enacting the partibility of the inheritance, still reserves the hearth to the youngest born, a trace of the same junior right which led to Borough English.

I think that upon the whole we must say that in practice the very marked contrast between the general arrangement of the holdings and the Kentish one is more a difference in the way of reckoning than in actual occupation, in legal forms than in economical substance. The generl arrangement admitted a certain subdivision under the cover of an artificial unity which found its expression in the settlement of the services and of the relations with the lord.(57*) The English case has its parallel on the Continent in this respect. In Alsace, for instance, the holding was united under one 'Trager' or bearer of the manorial duties; but by the side of him other people are found who participate with this official holder in the ownership and in the cultivation.(58*) The second system also kept up the artificial existence of the higher units, and obvious interests prevented it from leading to a 'morcellement' of land into very small portions in practice. The economic management of land could not go as far as the legal partition. In practice the subdivision was certainly checked, as in the virgate system, by the necessity of keeping together the cattle necessary for the tillage. Virgates and bovates would arise of themselves: it was not advantageous to split the yoke of two oxen, the smallest possible plough; and co-heirs had to think even more when they inherited one ox with its ox-gang of land. The animal could not be divided, and this certainly must have stopped in many cases the division of land. When the documents speak of plots containing two or three acres, it must be remembered that such crofts and cotlands occur also in the usual system, and I do not see any reason to suppose that the existence of such subdivided rights always indicated a real dispersion of the economic unit: they may have stood as a landmark of the relative rights of joint occupiers. I do not mean to say, of course, that there was no real basis for the very great difference which is assumed by the two ways of describing the tenements. No doubt the hand of the lord lay heavier on the Essex people than on the Kentish men, their occupation and usage of the land was more under the control of the lord, and assumed therefore an aspect of greater regularity and order. Again, the legal privileges of the Kentish people opened th way towards a greater development of individual freedom and a certain looseness of social relations. Still it would be wrong to infer too much from this formal opposition. In both cases the centripetal and the centrifugal tendency are working against each other in the same way, although one case presents the stronger influence of disruptive forces, and the other gives predominance to the collective power. In the history of socage and military tenure the system of unity arose gradually, and without any sudden break, out of the system of division. The intimate connexion between both forms is even more natural in peasant ownership, which had to operate with small plots and small agricultural capital, and therefore inclined naturally towards the artificial combination of divided interests. In any case there is no room in practice for the rigid and consequent operation of either rule of ownership, and, if so, there is no actual basis for the inference that the unification of the holding is to be taken as a direct consequence of a servile origin of the tenement and a sure proof of it. Unification appears on closer inspection as a result of economic considerations as well as of legal disabilities, and for this reason the tendency operated in the sphere of free property as well as among the villains; among these last it could not preclude the working of the disruptive elements, but in many cases only hid them from sight by its artificial screen of rigid holdings.

We have seen that the size and distribution of the holdings are connected with the number of oxen necessary for the tillage, and its relation to the full plough. The hide appears as the ploughland with eight oxen, the virgate corresponds to one yoke of oxen, and the bovate to the single head. it need not be added that such figures are not absolutely settled, and are to be accepted as approximate terms, The great heavy plough drawn by eight or ten oxen is certainly often mentioned in the records, especially on demesne land.(59*) The dependent people, when tey have to help in the cultivation of the demesne, club together in order to make up full plough teams.(60*) It is also obvious that the peasantry had to associate for the tilling of their own land, as it was very rare for the single shareholder to possess a sufficient number of beasts to work by himself. But it must be noticed that alongside of the unwieldy eight-oxen plough we find much lighter ones. Even on the demesne we may find them drawn by six oxen. And as for the peasantry, they seem to have very often contented themselves with forming a plough team of four heads.(61*) It is commonly supposed by the surveys that the holder of a yardland joins with one of his fellows to make up the team. This would mean on the scale of the hide of 120 acres that the team consists of four beasts.(62*) It happens even that a full plough is supposed to belong to two or three peasants, of which every one is possessed only of five acres; in such cases there can be no talk of a big plough; it is difficult to admit even a four-oxen team, and probably those people only worked with one yoke or pair of beasts.(63*) Altogether it would be very wrong to assume in practice a strict correspondence between the size of the holding and the parts of an eight-oxen plough. The observation that the usual reckoning of the hide and of its subdivisions, according to the pattern of the big team, cannot be made to fit exactly with the real arrangement of the teams owned by the peasantry -- this firmly established observation leads us once more to the conclusion that the system of equal holdings had become very artificial in process of time and was determined rather by the relation between the peasants and the manorial administration than by the actual conditions of peasant life. Unhappily the artificial features of the system have been made by modern inquirers the starting point of very far-reaching theories and suppositions. Seebohm has proposed an explanation of the intermixture of strips as originating in the practice of coaration. He argues tat it was natural to divide the land tilled by a mixed plough-team among the owners of the several beasts and implements. Every man got a strip according to a certain settled and ever-recurring succession. I do not pretend to judge of the value of the interesting instances adduced by Seebohm from Celtic practices, but whatever the arrangement in Wales or Ireland may have been, the explanation does not suit the English case. A doubt is cast on it already by the fact that such a universal feature as the intermixture of strips appears connected with the occurrence of such a special instrument as the eight-oxen plough, The intermixture is quite the same in Central Russia, where they till with one horse, and in England where more or less big ploughs were used. the doubt increases when we reflect that if the strips followed each other as parts of the plough-team, the great owners would have been possessed of compact plots. Every holder of an entire hide would have been out of the intermixture, and every virgater would have stood in conjunction with a sequence of three other tenants. Neither the one nor the other inference is supported by the facts. The observation that the peasantry are commonly provided with small ploughs drawn by four beasts ruins Seebohm's hypothesis entirely. One would have to suppose that most fields were divided into two parts, as the majority of the tenements are yardlands with half a team. The only adequate explanation of the open-field intermixture has been given above; it has its roots in the wish to equalise the holdings as to the quantity and quality of the land assigned to them in spite of all differences in the shape, the position, and the value of the soil.

Before I leave the question as to the holdings of the feudal peasantry, I must mention some terms which occur in different parts of England, although more rarely than the usual hides and virgates.(64*) Of the sulung I have spoken already. It is a full ploughland, and 200 acres are commonly reckoned to belong to it. The name is soetimes found out of Kent, in Essex for instance. In Tillingham, a manor of St. Paul's of London, we come across six hides 'trium solandarum'.(65*) The most probable explanation seems to be that the hide or unit of assessment is contrasted with the solanda or sulland (sulung), that is with the actual ploughland, and two hides are reckoned as a single solanda.

The yokes (juga) of Battle Abbey (66*) are not virgates, but carucates, full ploughlands. This follows from the fact that a certain virgate mentioned in the record is equivalent only to one fourth of the yoke. In the Norfolk manors of Ely Minster we find tenmanlands (67*) of 120 acres in the possession of several copartitioners, participes. The survey does not go into a detailed description of tenements and rights, and the reckoning of services starts from the entire combination, as in the Kentish documents. A commonly recurrent term is wista;(68*) it corresponds to the virgate: a great wista is as much as half-a-hide, or two virgates.(69*)

The terms discussed hitherto are applied to the tenements in the fields of the village; but besides those there are other names for the plots occupied by a numerous population which did not find a place in the regular holdings. There were craftsmen and rural labourers working for the lord and for the tenants; there were people living by gardening and the raising of vegetables. This class is always contrasted with the tenants in the fields. The usual name for their plots is cote, cotland, or cotsetland. The so-called ferdel, or fourth part of a virgate, is usually mentioned among them because there are no ploughbeasts on it.(70*) Another name for the ferdel is nook.(71*) Next come the crofters, whose gardens sometimes extend to a very fair size -- as much as ten acres in one enclosed patch.(72*) The cotters proper have generally one, two, and sometimes as much as five acres with their dwellings; they cannot keep themselves on this, as a rule, and have to look out for more on other people's tenements. A very common name for their plots is 'lundinaria'(73*) 'Mondaylands,' because the holders are bound to work for the lord only one day in the week, usually on Monday. Although the absence of plough-beasts, of a part in coaration, and of shares in the common fields draws a sharp line between these men and the regular holders, our surveys try sometimes to fit their duties and plots into the arrangement of holdings; the cotland is assumed to represent one sixteenth or even one thirty-second part of the hide.(74*) The Glastonbury Survey of 1189 contains a curious hint that two cottages are more valuable than one half-virgate: two cotlands were ruined during the war, and they were thrown together into half a virgate, although it would have been more advantageous to keep two houses on them, that is two households.(75*) The bordae mentioned by the documents are simply cottages or booths without any land belonging to them.(76*) The manorial police keeps a lookout that such houses may not arise without licence and service.(77*)

A good many terms are not connected in any way with the general arrangement of the holdings, but depend upon the part played by the land in husbandry or the services imposed upon it. To mention a few among them. A plot which has to provide cheese is called Cheeseland.(78*) Those tenements which are singled out for the special duty of carrying the proceeds of the manorial cultivation get the name of averlands.(79*) The terms lodland,(80*) serland (81*) or sharland, are also connected with compulsory labour. The first is taken from the duty to carry loads or possibly to load waggons; the second may be employed in reference to work performed with the sithe or reap-hook. A plot reserved for the leader of the plough-team, the akerman, was naturally called akermanland.(82*) Sometimes, though rarely, the holding gets its name from the money rent it has to pay. We hear of denerates (83*) and nummates (84*) of land in this connexion.

All these variations in detail do not avail to modify to any considerable extentthe chief lines on which the medieval system of holdings is constructed. I presume that the foregoing exposition has been sufficient to establish the following points: --

1. The principle upon which the original distribution depended was that of equalizing the shares of the members of the community. This led to the scattering and to the intermixture of strips. The principle did not preclude inequality according to certain degrees, but it aimed at putting all the people of one degree into approximately similar conditions.

2. The growth of population, of capital, of cultivation, of social inequalities led to a considerable difference between the artificial uniformity in which the arrangement of the holdings was kept and the actual practice of farming and ownership.

3. The system was designed and kept working by the influence of communal right, but it got its artificial shape and its legal rigidity from the manorial administration which used it for the purpose of distributing and collecting labour and rent.

4. The holdings were held together as units, not merely by the superior property of the lord, but by economic considerations. They were breaking up under the pressure of population, not merely in the case of free holdings, but also where the holdings were servile.

NOTES:

 1. It should be observed that the word demesne (dominicum) is constantly used in two different senses, (a) the narrower sense in which it stands for the land directly occupied and cultivated by the lord or for his use, and excludes the land held by his villain tenants, and (b) the wider sense ill which it includes these villain tenements. The first meaning is that which the word usually bears in manorial documents, in which the dominicum is contrasted with the villenagium or bondagium. But in legal pleadings and documents which state the doctrine of the common law and the king's courts the villain tenements are part of the lord's demesne, he is seised of them in his demesne (in dominico suo). This discrepancy between what I ma call the manorial and the legal uses of the term deserves notice as an indication of the imperfect adjustment of law to fact. I shall use the term in its narrower sense.

2. Eynsham Cartulary, MSS. of Christ Church, Oxford, N. 27, f 1, a: 'Est una cultura nuncupata Shyppelond, et continet in toto septem acras dimidiam acram et dimidiam rodam, et valet acra 4d., et bis successive seminatur.' Inqu. p. mortem 20 Henry III, N. 14 (Record Office): 'Extensio manerii de Remdun (Lincoln). Sunt ibidem 360 acre terre et faciunt duas carucatas. Et seminata sunt per annum 240 acre... De waracto per annum 12 d.'

3. Glastonbury Survey of 1189 (Roxburghe Ser.), 99: 'Idem tenet de dominico tres acras a tempore Henrici episcopi quas colit in uno anno et altero noll.'

4. Eynsham Cart., I, a: 'Est ibidem prope alia cultura nuncupata Clayfurlong et continet cum capitali inferiore octo acras unam rodam tres perticas cum dimidia, et potest ter seminari successive, videlicet post warectum ordium, anno sequente cum grosso pulstro et anno tercio cum frumento, et valet acra 8 d.... (Alia cultura) et potest ter seminari ut supra mutato grosso pulstro in pisas.'

5. Two husbandry treatises were chiefly in use in mediaeval England. The fourteenth-century MS., Merton College 91, contains both, and both mention the two systems. (Modus qualiter balliui et prepositi debent onerari super compotum reddendum et qualiter manerium custodiri), f 152: 'E la vu les chaumps sunt semez e parti en deus, le iuernage e le trameys sunt tous semez en un champ.' -- (Maior husbonderia, otherwise Walter of Henley's treatise), f 155: 'Si les terres seent partiz en iii, la ulle partie en le yuernage, lautre partie en le quaremel, e la tierce partie a warect, donqes est la charrue de terre de xxx acres, (sic, corr. ixxx)., E si vos terres seent partez en ii, com sont en plusurs pays, la une partie a yuernage e a quaremel, e lautre partie a waret, donqes serra la charue de terre de viiixx acres.' Cf. Thorold Rogers, Six Centuries, 75.

6. Fleta, ii. 72.

7. Malmebury Cart. (Rolls Ser.), ii. 186: 'De terris inbladandis et inhoc faclendis in campis de Brokeneberewe et de Burestone, a ponte de Julebrocke usque ad Halbrigge de Bremelham, ubi dictus Ricardus dicebat se habere communam, ita quod nec abbas et conventus, nec eorum tenentes possint inhoc facere sine consensu dicti Ricardi, nec pro voluntate sua terras suas ibidem inbladare... Abbas et conventus concesserunt praedicto Ricardo... ut cum terrae prenominatae inbladatae fuerint et blada a terris amota, liberam et plenam communam in praefatis terris una cum abbate et suis hominibus (habeat) sicut ipse vel praedecessores sui unquam melius et plenius habere consueverunt.... Ita quod si de campo predicto in quo factum est inhoc pars quaedam remaneat inculta sine blado, in eadem parte habebunt predictus Ricardus et heredes sui communam cum abbate et conventu et suis. Similiter si villani praedicti Ricardi nolint inhokare terras suas infra praedictum inhoc sitas, habebunt liberum ingressum et egressum ad warectandum eas.'

8. Coram Rege, Hill. 3 Edw. I, m. 17, d: 'Item quicumque facit inheche scilicet excolit warectum frumento, ordeo vel auena, dabit pro qualibet acra unum denarium, excepta una acra quam habere debet quietam.' See App. xii.

9. Gloucester Cart. iii. 35, 36: ' Omnes dictae particulae jacent pro uno campo, summa I74 acre arabiles, etc.... Et de predicto campo possunt inhokari quolibet secundo anno 40 acre et valet inde commodum eo anno 10 solidos.... De dictis 63 acris possunt quolibet secundo anno inhokari 20 acre, et valet inde commodum eo anno 11 sol. 8 d.... Et est summa totalis omnium acrarum arabilium 412. Et est summa dictarum acrarum in valore denariorum 9 librae 12 solidi. De quibus subtracta tertia parte pro campo jacente ad warectum, 64 sol. scilicet, remanent ad extentam annuam de puro 6 librae 8 sol. et de commodo terrae quae singulis annis potest inhokari 15 sol. 10d.' -- Cf Minor husbanderia, Merton Coll. MS. 91, f 152: 'E si li ad Inhom, i deit veer quele cuture i prent del Inhom, e de quel be est seme checune cuture, e tel semail deit il cuiler tut per ly e respondre tut per ly, hors des autres blees.'

10. Cart. of Boxgrave, Cotton MSS., Claudius, A. vi. p. 2: 'Debet compostare unam helvam ad frumentum et aliam ad ordeum.' Essex Court Rolls (Bodleian), 4: 'Milencia Tegulatrix posuit fimos in communa ad nocumentum custumariorum.' Glastonbury Inquest of 1189 (Roxburghe Ser.), 141: 'A. de N. occupavit quendam mariscum per concessum Roberti abbatis et illum marliavit et coluit.' Cf Domesday of St. Paul's (Camden Ser.), 8: ' Dicunt eciam quod emendatum est manerium in 50 acris marlatis per Willelmum Thesaurarium ad summam 10 solidorum.' Ib. 21.

11. Malmesbury Cart. (Rolls Ser. ' ii. 27: 'Concessimus... Roberto filio Roberti... illam virgatam terre quam A. de C. tenuit in campis, scilicet in uno campo 21 acras et in alio campo 21 acras.'

12. Gloucester Cart., iii. 194: 'Robertus Abovetun tenet unam virgatam terre continentem 44 acras in utroque campo.'

13. Ramsey Register, Cotton MSS., Galba, E. x. 27, d: 'Radulfus tenet 11 seliones in uno campo et 5 in alio de vilenagio., Worcester Cart. (Camden Ser.), 62, a: 'Henricus clericus tenet unam virgatam, 16 acras in uno campo et 14 in alio. Item tenet aliam virgatam similiter. T. T. tenet unam virgatam, 15 acras excepto dimidio furtendello in uno campo et 11 in alio. O. le E. tenet unam virgatam 13 a. et 1/2 in uno campo et 12 et dimidiam in alio. T. le F. tenet unam virgatam, 16 acras in uno campo et 12 in alio.'

14. As in Gloucester Cart., i. 246: 'Ecclesiam Omnium Sanctorum... cum omnibus pertinenciis suis, videlicet unam virgatam terrae, undecim acras terrae in campo lucrabili.' Cf 247.

15. Dunstable Cart., Harleian MSS. 1885, f 7, d: 'Postquam buttum habuimus bis seminatio fuerit et non amplius, quia omnes ceteri non excolunt ibi terram, sed at pascua reservant.'

16. Eynsham Cart., Christ Church, Oxford, MSS., N. 27, f 74, b: 'Placitum de Haneberge in recordo de banco de termino Sti Trinitatis anni xliij (Edw. III)... Est quidam hamelettus vocatusTilgerdesle infra bundos ville de Eynesham, infra quem hamelettum tam in vastis quam in terris, pratis et pasturis eiusdem hameletti iidem Johannes Smyth et omnes alii habent communam cum omnibus averiis suis tanquam pertinens ad tenementa sua que ipsi separati tenent in Hanberge, scilicet in vasto et pastura quolibet anno per totum annum et in terris arabilibus post blada messa et asportata quousque... resemenentur et quolibet tercio anno tempore warecti per totum annum eo quod omnes terrae arabiles infra dictum hamelettum per duos annos continuos debent seminari et tercio anno warectari, et in pratis post fenum levatum et asportatum usque ad festum purificacionis beate Marie.... Et dicunt quod diversis vicibus quibus predictus Abbas nunc queritur etc. diuerse parcelle terrarum arabilium in hameletto predicto que tunc temporis warectare debuissent per predictum abbatem et alios seminate fuerunt per quod ipsi tam in parcellis illis sic seminatis que tunc temporis warectare debuerunt quam in aliis vastis, pratis et pascuis hameletti predicti in communa sua cum aueriis suis prout eis bene licuerit usi fuerunt... Et predictus abbas non cognoscit quod terre arabiles infra hamelettum predictum quolibet tercio anno debent warectari, immo protestando quod eedem terre per tres annos continuos debent seminari et quarto anno warectari.' The case is a rather complicated one, because the persons claiming common are not tenants of the Abbot but of the King. Still, their pretensions are grounded on the customary order of farming in a hamlet belonging to the manor of Eynsham, and this is the point which concerns us. Cf Coram Rege, Pascha, 25 Henry III: 'Abbas... partitus fuit terras suas in tres partes quae antea partitae fuerunt in duas partes.' See also Placit. Abbrev. 153. The case is quoted by Scrutton, Common Fields, 57.

17. Some of these expressions are intcresting. Balk is the O. N. balkr; gora is the spear.head or its long triangular shape, O. E. gar, O. N. geirr. These linguistic affinities have been pointed out to m by Mr. F. York Powell.

18. Alvingham Priory Cart., Laud MSS. 642 (Bodleian), f 12. Cf Malmesbury Cart. ii. 294; Madox, History of the Exchequer, 258.

19. Eynsham Cart., 5, a: 'I. I. virgatarius... Idem tenet unam selionem terre apud Blakelond non mensuratam.'

20. Domesday of St. Paul's, 11: 'Laurencius de hospitale dimidiam virgatam pro 40 denariis; tres acre quas tenuit Laurencius sine servicio inveniri non possunt.'

21. Dunstable Priory Cart., Harleian MSS. 1885, f 7, d. See Appendix xiii.

22. Elton, English Historical Review, i, 435.

23. The expressions are not identical, but they ought both to correspond to the ploughteam.

24. As to all this, see Seebohm, Village Community.

25. Glastonbury Inqu. (Roxburghe Ser.), 144, v. Hide, virgate.

26. Eynsham Cart., 4, a.

27. Domesday of St. Paul's: 'Manerium istud secundum dictum juratorum continet octo hidas, et hida continet sexcies viginti acras, set antiqua inquisicio dixit, quod non consuevit continere nisi quater viginti, quia postmodum exquisite sunt terre et mensuratae.'

28. Inqu. post mort. 30 Henry III, N. 36: 'Extensio de terris Roberti de Sancto Georgio (in com. Lincoln.)... tenuit in capite de domino Rege 20 bovatas terre et dimidiam pro servicio sexte partis unius feodi militis.... Et Robertus de Drayton tenet 2 bovatas et quartam partem unius bovate terre de dicto Roberto per forinsecum servicium tantum, unde 16 carucate terre faciunt feodum militis.'

29. Rot. Hundred. ii. 631, b: '... et ad dictam villam pertinent sex hide quarum quelibet continet 6 virgatas terre et quelibet virgata continet 30 acras.' Ramsey Survey, Galba, E. x. 41: 'In una hydarum istarum... septem virgatae 4 acris minus.' Eynsham Cart., 21, a: 'Et abbas habet in eodem manerio 4 carucatas terre et continent 16 virgatas terre in dominico et in villenagio 16 virgatas terre.'

30. Ramsey Cart. (Rolls Ser.), i. 55, 284: 295, 309, 333, 373, 380; Ely Inqu., Claudius, xi. 82, 95, 97, 121, 129, 186; Gloucester Cart., iii. 128, 142, 145, 196; Coram Rege, Hill. 3 Edw. I, 17, b; Eysham Cart., II, a; 88, a; Rot. Hundr., ii. 605, b.

31. Chapterhouse Boxes, A. 4/22, m. 31-33.

32. Ramsey Cart. (Rolls Ser.), i. 354: 'Aliquando 48 acre faciunt virgatam et aliquando pauciores.'

33. Rot. Hundr., ii. 628, b.

34. Glastonbury Inqu. (Roxburghe Ser.), 134: '... R. de W. unam virgatam pro 4 solidis pro omni servicio quia terra parva est.'

35. Ibid., 113: 'Super hanc virgatam terre fuerunt olim 2 domus et pro duabus virgatis computata fuit terra illa, sed quia non potuerant 2 homines ibi vivere, redacte ille 2 virgate ad unam, et sicut audierant dicere 7 solidi reddebantur, sed nunquam hoc viderunt et facit idem servitium quod alii faciunt virgarii.'

36. O C. Pell in the Transactions of the Cambridge Archaeological Society, vi. 17 sqq., 63 sqq.

37. Ely Inqu., Claudius, C xi. 30, a.

38. Duchy of Lancaster Court Rolls, Ble 62, N. 750; 3, b. Burton Cartulary, Transactions of the Staffordshire William Salt Society, pp. 22, 28.

39. Ely Inqu, 31, b.

40. Burton Cart. (William Salt Ser.), 22, 28. Compare Peoples, Ranks and Laws, cap. 3 (Schmid, p. 388).

41. Peterborough Cart., Cotton MSS., Faustina, B. iii. 97: 'Libera wara est unus redditus et est talis condicionis quod si non solvatur... dupplicatibur ill crastino et sic in dies.'

42. Beaulieu Cart., 103: 'Et inveniet hominem ad gurgitem faciendum et waram.'

43. Rot. Hundr., ii. 323: 'Tenementum quod non est hidatum nec feodatum.'

44. Ramsey Cart. (Rolls Ser.), i. 401: 'Terrae de Hulmo non sunt distinctae per hydas vel per virgatas.' 413: 'Nescitur quot virgatae faciunt hidam, nec quot acrae faciunt virgatam.' Cf 405. Glastonbury Inqu. (Roxburghe Ser.), 5: '... Nescit quantum amuntat in hida.'

45. Ramsey Cart. i. 441: 'Terrae quae sunt extra hydam et quae non dant hydagium.'. 355., Virgatam extra hydam firmarius appropriavit.' 324: 'Ponere extra hydam.'

46. Ibid. 473: 'Villata defendit, etc. versus Regem pro 10 hydis et versus abbatem pro 11 hydis et dimidia.'

47. Ely Inqu., Cotton MSS., Claudius, C. xi. 38, b: 'Plena terra que facit 12 acrasde ware.'

48. St. Alban's Formulary, Cambridge Univ., E, e, iv, 20; f 165, a: 'Item dicunt quod quando predictus Robertus fuerit mortuus quod dominus habebit melius animal suum pro herieto et carettam suam ferro ligatam, omnes pullos suos, omnes porculos suos, omnes pannos Suos laneos, omnia vaSa sua argentea, aenea et ferrea. Et quod filius suus postnatus habebit terram quam pater suus tenuit et dabit pro ingressu habendo tantum quantum unus alius extraneus et faciet eadem seruilia (sic) que et pater suus fecit,' Ramsey Cart., i, 372: 'Erit dicta terra post mortem patris vel matris gersummata filio juniori vel propinquiori de sanguine secundum consuetudinem ville.'

49. Duchy of Lancaster, B.e 62, N, 750, m, 2: 'Siwardus cepit unam hidam cum dimidia virgata terre et illam tenuit usque ad obitum uxoris sue; postea venit idem Siwardus et rogauit Hugonem fratrem suum ut auderet remanere in terra patris sui prenominati, quia fuit sine terra, Et idem Hugo sibi concessit, saluo iure suo, Item Siwardus cepit uxorem... de qua habuit Robertum, Radulfum et Gunnildam. Post obitum dicti Siwardi venit Rogerus qui fuit filius Hugonis et exigebat terram prenominatam et per consideracionem curie fuit seisitus in predicta terra, set quia uxor dicti Siwardi pauper fuit, consideratum sibi fuit ut haberet iv acras de predicta terra, quantum sibi custodiret. Postea maritata fuit et revcrtebant predicte acre terre dicto Rogero ut de jure suo pertinentes ad dictam virgatam terre,' Cf Q. R. Misc, 902/77,

50. Black Book of St. Augustine's, Cotton MSS., Faustina, A. i. 15, a: 'In Taneto sunt 45 sullung 150 acre reddentes gablum denariorum. In festo Sti Martini videlicet de unoquoque sullung reddunt de Gabulo 2 solidos 2 denarios, summa quorum facit 25 libras 105 solidos 10 denarios obolum. Ipsi qui tenent predictos sullung reddunt in equinoctio autumpnae de unoquoque sullung pro horsarer 16 den. et de 150 acris 12 den. Ipsi idem arant pro anererthe in purificacione de unoquoque sullung unam acram et 150 acris 3 virgatas. Ipsi idem redunt in festo Sti Johannis de unoquoque sullung 2 agnos separabiles et de 150 acris 1 agnum et valenciam dimidii agni. lpsi idem reddunt in natali de unoquoque sullung unum ferendel ordei,' etc.

51. Ibid. 60; Suolinga de Ores: 'Heredes Salomonis de Ores tenent 8 acras... Heredes Willelmi de Ores tenent 12 acras... Jacobus tenet 3 acras et dimidiam perchatam... Thomas filius G. de Hores tenet 2 acras... Ricardus et Salomon filius Augustini... et Willelmus filius Ricardi tenent 2 acras et dimidiam,' etc.

52. Augment. Off. Misc. Books, N. 57, f 96, a: 'Johannes Bairot heredes Hamoni Daniel, heredes Johannis hugheleyn, heredes Roberti atte mede, heredes Walteri et Willelmi Ram et Gilbertus le Rome tenent unum jugum et dimidium de Cukulycumbe.'

53. Domesday of St Paul's, 38 sqq. Comp. Ramsey Cart., i. 413.

54. Gloucester Cart., iii. 213: 'Robertus Altegreue, Willelmus Godere, Johannes Abraham, Isabella relicta Lucae tenent Unam virgatam, scilicet quilibet eorum unum quarterium et faciunt conjunctim in omnibus sicut unus virgatarius.' Comp. 59, 201. Hereford Court Rolls (Bodleian), 3, b: 'T. Hake, Ricardus de Poluchulle et Muriel filius Galfridi pyoner tenent unam dimidiam virgatam terre consuetudinarie.'

55. Bury St. Edmund's Cart., Cambridge University, G. g. iv. 4. f 35, a: 'Johannes Knop tenet cotagium et contribuit heredi qui tenet maiorem partem tenementorum.'

56. Inqu. post mort. 55 Henry III, N. 33: 'Redditarii qui vocantur self-oders.'

57. Euch. Q. R. Anc. Misc. Court Rolls, xxi. 513/82: 'Dicunt quod aliquis habens virgatam terre et vendiderit omnes partes excepto capitati domo et loco focarii, tenentes locum focarii erunt sectatores curie et alteri non. Similiter de tenentibus dimidiam virgatam et codsetlestoftes: semper tenentes locum focarii colligent firmam et erunt liberi de pannagio et de aliis tallagiis et alteri tenentes partes erunt geldabiles.' (Curia de Brigstock tenta die veneris proxima ante festum Sancti Andree Apostoli anno [r. r. Edw. xxvi]).

58. See Hanauer, Les paysans de l'Alsace au oyen Age.

59. Domesday of St. Paul's, xv. 7,. Gloucester Cartulary, iii. 55, 6I; Cartulary of Christ Church, Canterbury, Add. MSS. 6759, f. 21, b.

60. Battle Cart. Augm. Off. Books, N. 18, f 7, a: 'Aratra uertuntur in terram domini.' Ely Inqu., Claudius, C. xi. 38 b, 86 b, etc.

61. Ely Inqu, 72 b; comp. 24, b., Gloucester Cart., iii. 183.

62. Eynsham Reg., 6, b: 'Robertus Tony tenet de domino unam virgatam terre in bondagium... Idem semel arabit cum vicino adiuncto.' Ramsey Cart., i. 56. Comp. Q. R. Min. Acc., Ble 513, N. 97: 'Estimatur quod communiter tres custumarii possunt facere unam carucam (tenent 20 acras).'

63. Rot. Hundr., ii. 461, b: 'Robertus de Tony habet in villenagio scil. Reginaldum Toni qui tenet 5 acras... Item si ipse habeat cum uno vel cum duobus sociis unam carucam, arabit unam selionem terre domini.' Comp. 462, a. Add. MSS. 6159, f 22, b: 'W. J. tenet de domino in villenagio unum mesuagium et 10 acras terre.... Et arabit cum caruca sua sive jungat sive non 4 acras.'

64. Black Book of St. Augustine's, 53.

65. Domesday of St. Paul's, 58.

66. Augm. Off. Misc. Books, N. 57, f 65, b. See Cartulary of Battle Abbey (Camd. Soc.), p. 133.

67. Ely Inqu., 185, a: '... tenent dimidium tenmanland, scilicet 60 acras terre... Al. et M. et eorum participes tenent unum tenmanland, scilicet 120 acras terre.' The expression may be corrupted from tunmanland, or else it may be a mark of a beginning of cultivation in Danish times.

68. Chapter-house Books, A. 4/22, p. 21: 'Custumarii tenent 22 virgatas quas vocant wistas.'

69. Battle Abbey Cart., Augment. Off. Misc. Books, N. 57, f. 27, a; comp. 15, b.

70. Glastonbury Inqu. (Roxburghe Ser.), 66, 90

71. Worcester Cart., 41, b.

72. Glastonbury Inqu., 67, 70; Rot. Hundr., ii. 404, b.

73. Gloucester Cart., iii. 207.

74. Abingdon Cart., ii. 304: 'In dominio camerae sunt 4 hidae Uno cotsettel minus.'

75. Glastonbury Inqu., 41: 'Robertus blundus tenet dimidiam virgatam eodem servicio. Hec terra solet esse divisa in duo cotsetlanda, set in tempore werre dciderunt, eo ex his duabus terris facta fuit dimidia virgata. Si esset divisa utilius esset domino.'

76. Domesday of St. Paul's, 19; Ramsey Cart. ( Rolls Ser.), i. 309

77. Gloucester Cart., iii. 61.

78. Black Book of St. Augustine's, 57.

79. Ibid.

80. Domesday of St. Paul's, 49.

81. Gloucester Cart., ii. 109.

82. Exch. Q. R. Anc. Misc., xxi. 513/82 (Curia de Brigstock, Friday after Annunciation, 27 Edw. I): 'Ille due dimidie rode prati... pertinent ad Hakermannislond, et nemo potest habere seysinanm predictarum sine breui Domini Regis.'

83. Glastonbury Inqu., 2: 'In marisco 110 acras terrae et quoddam molendinum, et octo deneratas terrae secus molendinum.'

84. Madox, Exch., i. 155, n. 257: 'Duodecim tamen nummatas quas Ordurcus tenuit... usque ad 10 annos debemus tenere, singulis annis reddentes ei 12 denarios ad festum Sti Michaelis.'

 Chapter 2 — Rights of Common

The influence of the village community is especially. apparent in respect of that portion of the soil which is used for the support of cattle. The management of meadows is very interesting because it presents a close analogy to the treatment of the arable, and at the same time the communal features are much more clearly brought out by it. We may take as an instance a description in the Eynsham Survey. The meadow in Shifford is divided into twelve strips, and these are distributed among the lord and the tenantry, but they are not apportioned to any one for constant ownership. One year the lord takes all the strips marked by uneven numbers, and the next year he moves to those distinguished by even numbers.(1*) The tenants divide the rest according to some settled rotation. Very often lots are drawn to indicate the portions of the several households.(2*) It must be added that the private right of the single occupiers does not extend over the whole year: as in the case of the arable all inclosures fall after the harvest, so in regard to meadows the separate use, and the boundaries protecting it, are upheld only till the mowing of the grass: ater the removal of the hay the soil relapses into the condition of undivided land. The time of the 'defence' extends commonly to 'Lammas-day'; hence the expression 'Lammas-meadow' to designate such land. It is hardly necessary to insist on the great resemblance between all these features and the corresponding facts in the arrangement of the arable. The principle of division is supplied by the tendency to assign an equal share to every holding, and the system of scattered strips follows as a necessary consequence of the principle. The existence of the community as a higher organising unit is shewn in the recurrence of common use after the 'defence,' and in the fact that the lord is subjected to the common rotation, although he is allowed a privileged position in regard to it. The connexion in which the whole of these rights arises is made especially clear by the shifting ownership of the strips: private right appears on communal ground, but it is reduced to a minimum as it were, has not settled down to constant occupation, and assumes its definite shape under the influence of the idea of equal apportionment. Of course, by the side of these communal meadows we frequently find others that were owned in severalty.

Land for pasture also occurs in private hands and in severalty, but such cases are much rarer.(3*) Sometimes the pasture gets separated and put under 'defence' for one part of the year, and merges into communal ownership afterwards.(4*) But in the vast majority of cases the pasture is used in common, and none of the tenants has a right to fence it in or to appropriate it for his own exclusive benefit. It ought to be noted, that the right to send one's cattle to the pasture on the waste, the moors, or in the woods of a manor appears regularly and intimately connected with the right to depasture one's cattle on the open fields of the village.(5*) Both form only different modes of using communal soil. As in the case of arable and meadow the undivided use cannot be maintained and gets replaced by a system f equalised shares or holdings, so in the case of pasture the faculty of sending out any number of beasts retires before the equalisation of shares according to certain modes of 'stinting' the common. We find as an important manorial arrangement the custom to 'apportion' the rights of common to the tenements, that is to decide in the manorial Court, mostly according to verdicts of juries, how many head of cattle, and of what particular kind, may be sent to the divers pasture-grounds of the village by the several holdings. From time to time these regulations are revised. One of the Glastonbury Surveys contains, for instance, the following description from the 45th year of Henry III. Each hide may send to the common eighteen oxen, sixteen cows, one bull, the offspring of the cows of two years, two hundred sheep with four rams, as well as their offspring of one year, four horses and their offspring of one year, twenty swine and their offspring of one year.(6*) According to a common rule the only cattle allowed to use the village pasture was that which was constantly kept in the village, levant e couchant en le maner. In order to guard against the fraudulent practice of bringing over strange cattle and thus making money at the expense of the township, it was required sometimes that the commonable cattle should have wintered in the manor.(7*)

These last rules seem at first sight difficult of explanation: one does not see in what way the bringing in of strange cattle could damage the peasantry of the village, as nobody could drive more than a certain number of beasts to the common, and as the overburdening of it depended entirely on the excess of this number, and not on the origin of the beasts. And so one has to look to something else besides the apprehension that the common would get overburdened, in order to find a suitable explanation of the rule. An explanation is readily supplied by the notion that the use of the common was closely connected with the holding. Strange cattle had nothing to do with the holding and were to be kept off from the land of the community. it is as representatives of a community whose territory has been invaded that the individual commoners have cause to complain. In fact, the common pasture, as well as the meadows, were thought of merely as a portion of the holding. The arrangements did not admit of the same certainty or rather of the same kind of determination as the division of the arable, but the main idea which regulated the latter was by no means cut short in its operation, if one may say so: it was not bound up with the exact measurement of arable acres. The holding was the necessary agricultural outfit of a peasant family, and of this outfit the means of feeding the cattle were quite as important a part as the means of raising crops. It is only inaccurately that we have been speaking of a virgate of 30 acres, and of a ploughland of 180 or 160. The true expression would be to speak of a virgate of 30 acres of arable and the corresponding rights to pasture and other common uses. And the records, when they want to give something like a full description, do not omit to mention the 'pertinencia,' the necessary adjuncts of the arable. The term is rather a vague one, quite in keeping with the rights which, though tangible enough, cannot be cut to so certain a pattern as in the case of arable.(8*) And for this reason the laxer right had to conform to the stricter one, and came to be considered as appendant to it.

We have considered till now the different aspects assumed by common of pasture, when it arises within the manor, and as a consequence of the arrangement of its holdings. But this is not the only way in which common of pasture may arise. It may originate in an express and special grant by the lord either to a tenant or to a stranger.(9*) it may also proceed from continuous use from time beyond legal memory.(10*) it must have been difficult in many cases to prevent strangers from establishing such a claim by reason of long occupation in some part of a widely stretching moor or woo pasture.(11*) It was not less difficult in such cases to draw exact boundaries between adjoining communities, and we find that large tracts of country are used as a common pasture-ground by two villages, and even by more.(12*) Neighbours deem it often advantageous to establish a certain reciprocity in this respect.(13*) By special agreement or by tacit allowance lords and tenants intercommon on each other's lands: this practice extends mostly to the waste only, but in some cases the arable and meadow are included after the removal of the crop and of the hay. The procedure of the writ 'quo jure' was partly directed to regulate these rights and to prevent people from encroaching wantonly upon their neighbours.(14*) When land held in one fee or one manor was broken up for some reason into smaller units, the rights of pasture were commonly kept up according to the old arrangements.(15*)

These different modes of treating the pasture present rather an incongruous medley, and may be classified in several ways and deduced from divers sources.

The chief distinctions of modern law are well known: 'Common Appendant is the right which every freehold tenant of the manor possesses, to depasture his commonable cattle, levant and couchant on his freehold tenement anciently arable, on the wastes of the manor, and originally on all (common) pasture in the manor. Common appurtenant on the other hand is against common right, becoming appurtenant to land either by long user or by grant express or implied. Thus it covers a right to common with animals that are not commonable, such as pigs, donkeys, goats, and geese; or a right to common claimed for land not anciently arable, such as pasture, or land reclaimed from the waste within the time of legal memory, or for land that is not freehold, but copyhold.'(16*) Common in gross is a personal right to common pasture in opposition to the praedial rights. Mr Scrutton has shown from the Year Books that these terms and distinctions emerge gradually during the fourteenth century, andappear substantially settled only in Littleton's treatise. Bracton and his followers, Fleta and Britton, do not know them. These are important facts, but they hardly warrant the inferences which have been drawn from them. The subject has been in dispute in connexion with discussions as to the free village community. Joshua Williams, in his Rights of Common,(17*) had assumed common appendant to originate in ancient customary right bestowed by the village community and not by the lord's grant; Scrutton argues that such a right is not recognised by the documents. He lays stress on the fact, that Bracton speaks only of two modes of acquiring common, namely, express grant by the lord, and long usage understood as constant sufferance on the part of the lord amounting to an express grant. But this is only another way of saying that Bracton's exposition is based on feudal notions, that his land law is constructed on the principle 'nulle terre sans seigneur,' and that every tenement, as well as every right to common, is considered in theory as granted by the lord of the manor. It may be admitted that Bracton does not recognise just that kind of title which later lawyers knew as appendancy, does not recognise that a man can claim common by showing merely that he is a freeholder of the manor. Unless he relies on long continued user, he must rely upon grant or feoffment. But the distinction between saying 'I claim common because I am a freeholder of the manor' and saying 'I claim common because I or my ancestors have been enfeoffed of a freehold tenement of the manor and the right of common passed by the feoffment,' though it may be of juristic interest and even of some practical importance as regulating the burden of proof and giving rise to canons for the interpretation of deeds, is still a superficial distinction which does not penetrate deeply into the substance of the law. On the whole we find that the freeholder of Bracton's time and of earlier times does normally enjoy these rights which in after time were described s 'appendant' to his freehold; and it is well worth while to ask whether behind the general assumptions of feudal theory there do not lie certain data which, on the one hand, prepare and explain later terminology, and are connected, on the other, with the historical antecedents of the feudal system.

A little reflection will show that the divisions of later law did not spring into being merely as results of legal reasoning and casuistry. indeed, from a lawyer's point of view, nothing can be more imperfect than a classification which starts from three or four principles of division seemingly not connected with each other. Common appendant belongs to a place anciently arable, common appurtenant may belong to land of any kind; the first is designed for certain beasts, the second for certain others; one is bound up with freehold, the other may go with copyhold; in one case the right proceeds from common law, in the other from 'specialty.' One may reasonably ask why a person sending a cow to the open fields or to the waste from a freehold tenement can claim common appendant, and his neighbour sending a cow to the same fields from a copyhold has only common appurtenant. Or again, why does a plot of arable reclaimed from the waste confer common appurtenant, and ancient arable common appendant? Or again, why are the goats or the swine of a tenement sent to pasture by virtue of common appurtenant, and the cows and horses by virtue of common appendant? And, above all, what have the several restrictions and definitions to do with each other? Such a series of contrasted attributes defies any attempt to simplify the rules of the case according to any clearly defined principle: it seems a strange growth in which original and later elements, important and secondary features, are capriciously brought together.

In order to explain these phenomena we have to look to earlier and not to later law. What seems arbitrary and discordant in modern times, appears clear and consistent in the original structure of the manor.

Theolder divisions may not be so definitely drawn and so developed as the later, but they have the advantage of being based on fundamental differences of fact. Even when the names and terms do not appear well settled, the subject-matter arranges itself according to some natural contrasts, and it is perhaps by too exclusive study of names and terms that Mr. Scrutton has been prevented from duly appreciating the difference in substance. He says of the end of the thirteenth century: 'In the reports about this time it seems generally to be. assumed that if the commoner cannot show an especialte or special grant or title, he must show "fraunc tenement en la ville a ques commune est appendant." Thus we have the question: -- "Coment clamez vous commune? Com appendant, ou par especialte,' while Hengham, J. says: 'prescription de terre est assez bon especialte"' (p. 50). This is really the essence of all the rules regarding common of pasture, and, what is more, the contrast follows directly from arrangements which did not come into use in the fourteenth century, but were in full work at the time of Bracton and long before it. What is called in later law common appendant, appears as the normal adjunct to the holding, that is, to a share in the system of village husbandry. If a bovate is granted to a person, so much of the rights of pasture as belongs to every bovate in the village is presumed to be granted with the arable. ' So much as belongs to every bovate in the village; 'this means, that the common depends in this case on a general arrangement of the pasture in the village. Such an arrangement exists in every place; it is regulated by custom and by the decisions of the manorial court or halimote, it extends equally over the free and over the unfree land, over the waste, the moor and wood, and over the fallow. It admits a certain number and certain kinds of beasts, and excludes others. Only because such a general arrangement is supposed to exist, is the right to com mon treated in so vague a manner; the documents present in truth, only a reference to relations which are substantiated in the husbandry system of the manor. But the right of common may exceed these lines in many ways: it may be joined to a tenement which lies outside the manorial system, or a plot freshly reclaimed from the waste, or to a holding belonging to some other manor. It may admit a greater number and other kinds of beasts than those which were held commonable in the usual course of manorial husbandry. In such cases the right to pasture had to proceed from some special agreement or grant, and, of course, had to be based on something different from the ordinary reference to the existing system of common husbandry. If there was no deed to go by, such a right could only be established by long use.

I think that all this must follow necessarily as soon as the main fact is admitted, that common is normally the right to pasture of a shareholder of the manor. The objection may be raised, that such a priori reasoning is not sufficient in the case, because the documents do not countenance it by their classification. Would the objection be fair? Hardly, if one does not insist on finding in Bracton the identical terms used in Coke upon Littleton. It is true that Bracton speaks of common in general, and not of common appendant, appurtenant, and in gross, but the right of common which he treats as normal appears to be very peculiar on a closer examination of his rules. It is praedial and not personal; to begin with, it is always thought of as belonging to a tenement.(18*) What is more, it cannot belong to a tenement reclaimed from the waste,(19*) and in this way the requirement of 'ancient arable' is established, that is, the pasture is considered as one of the rights conceded to the original shares of a manorial community. The use of the open field outside the time of reasonable defence (20*) is primarily meant, and the common pasture appears from this point of view as one of the stages in the process of common farming. To make up the whole, the right to common is efined by a 'quantum pertinet.'(21*) which has a sense only in connexion with the admeasurement of claims effected by the internal organisation of the manor. Such is evidently the normal arrangement presupposed by Bracton's description, and his only fault is, that he does not distinguish with clearness between the consequences of the normal arrangement, and of grants or usurpations which supplement and modify it. It must be remembered that he only gives the substantive law about common rights in the course of a discussion of the pleadings in actions 'quo jure' and assizes of pasture. If we compare with Bracton's text the rules and decisions laid down in the legal practice of the thirteenth century, we shall find that the same facts are implied by them. They all suppose a contrast between 'intrinsec' and 'forinsec' claims to common, that is between the rights of those who are members of the manorial group, and the rights, if any, of those who are outside it, and again a contrast between the normal rights of commoners and any more extensive rights acquired by special grant or agreement. Only the freeholders are protected in the enjoyment of their commons; only the freeholders are protected in the enjoyment of their tenements; but their claims are based on arrangements in which the unfree land participates in everything with the free. It may be added that litigation mostly arises from the adjustment of 'forinsec' claims under the writ 'Quo jure.' The intercommoning between neighbours gives rise to a good many disputes, and is much too frequent to be considered, as it was by later law, a mere 'excuse for trespassing.'(22*) This common 'pur cause de vicinage' may be a relic of a time when adjoining villages formed a part of a higher unit of some kind, of the Mark, of a hundred, for example. It may be explained also by the difficulty of setting definite boundaries in wide tracts of moor and forest. However this may be, its constant occurrence forms another germ of a necessary contrast between the two classes which aftrwards developed into common appendant and common appurtenant. It could not be brought under the same rules as those which flowed from the internal arrangement of the manor. A special difficulty attended it as to admeasurement: the customary treatment of other holdings could not in this case serve as a standard. The very laxity of the principle naturally gave occasion to very different interpretations and deductions. And so we are justified in saying, that the chief distinctions of later law are to be found in their substance in the thirteenth century, and that although a good deal of confusion occurs in details, the earlier documents give even better clues than the later to the reasons which led to the well-known classification.

Common appendant, if we may use the modern term for the sake of brevity, is indissolubly connected with the system of husbandry followed by the village community. A very noticeable feature of it is, that, in one sense, it towers over the lord of the manor as well as over the tenants. Of course, legally the lord is considered as the owner of the waste,(23*) but even from the point of view of pure law his ownership is restricted by his own grants. in so much as he has conceded freehold tenements to certain persons, he is bound by his own deed not to withhold from these persons the necessary adjuncts of such tenements, and especially the rights of pasture bound up with them. The free tenants share with the lord, if he wants to turn his common pasture to some special and lucrative use; if, for instance, strangers are admitted to it for money, one part of the proceeds goes to the tenantry.(24*) Again, the lord may not overburden the common, and sometimes freeholders try their hand at litigation against the lord on the ground that he sends his cattle to some place where they ought not to go.(25*) The point cannot be overlooked, that the lord of the manor appears subjected to certain rules set up by custom and common decision in the meetings of his tenantry. The number and kind of beasts wich may come to the common from his land is fixed, as well as the number that may come from the land of a cottager.(26*) The freeholders alone can enforce the rule against him, but it is set up not by the freeholders, but by the entire community of the manor, and practically by the serfs more than by the freeholders, because they are so much more numerous.

As the common of pasture appears as an outcome of a system of husbandry set up by the village community, so every change in the use of the pasture ought in the natural course to proceed from a decision of this community. Such a change may be effected in one of two manners: the customary rotation of crops may be altered, or else a part of the waste may be reclaimed for tillage. In the first case, a portion of the open arable and meadow, which ought to have been commonable at a certain time, ceases to be so; in the second, the right to send cattle to the waste is stinted in so much as the arable is put under defence, or the land is used for the construction of dwellings. By the common law the free tenants alone could obtain a remedy for any transgression in this respect. I have mentioned already that suits frequently arose when the old-fashioned rotation of crops was modified in accordance with the progress of cultivation. As to the right of approving from the waste, the relative position of lord and tenants was for a long time debateable, and, as everybody knows, the lord was empowered to approve by the Statute of Merton of 20 Henry III, with the condition that he should leave sufficient pasture to his free tenants according to the requirements of their tenements. The same power was guaranteed by the Statute of Westminster II against the claims of neighbours. It has been asked whether, before the Statute of Merton, the lord had power to enclose against commoners, if he left sufficient common to satisfy their rights. Bracton's text in the passage where he treats of the Statute is distinctly in favour of the view that this legislative enactment did actually ater the common law, and that previously it was held that a lord could not approve without the consent of his free-tenants.(27*) Turning to the practice of the thirteenth-century courts, we find that the lawyers were rather doubtful as to this point. In a case of 1221 the jurors declare, that although the defendant has approved about two acres of land from the waste where the plaintiff had common, this latter has still sufficient pasture left to him. And thereupon the plaintiff withdraws.(28*) In 1226 a lord who has granted pasture everywhere, 'ubique,' and has inclosed part of it, succumbs in a suit against his tenant, and we are led to suppose that if the qualification 'ubique' had been absent, his right of approvement would have been maintained. It must be noticed, however, that the marginal note in Bracton's Notebook does not lay stress on the 'ubique,' and regards the decision as contrary to the law subsequently laid down by the Constitution of Merton.(29*) In a case of 1292 one of the counsel for the defendant took it for granted that the Statute of Merton altered the previously existing common law.(30*) The language of the Statutes themselves is certainly in favour of such a construction: in the Merton Constitution it is stated as a fact that the English magnates were prevented from making use of their manors,(31*) and the Westminster Statute. Is as positive as to neighbours; 'multi domini hucusque... impediti extiterunt,' etc. It seems hardly possible to doubt that the enactments really represent a new departure, although the way towards it had been prepared by the collision of interests in open Court. The condition negatively indicated by the documents in regard to the time before these enactments cannot be dismissed by the consideration that the lord would derogate from his grant by approving. Although a single trial may bear directly on the relation between the lord and only one of the tenants or a few of them, every change in the occupation of the land touches all those who are members of the manorialcommunity. The removal of difficulties as to approvement was, before the Statute of Merton, not a question of agreement between two persons, but a question as to the relative position of the lord and of the whole body of the tenantry. The lord might possibly settle with every tenant singly, but it seems much more probable that he brought the matter, when it arose, before the whole body with which the management of the village husbandry rested, that is, before the halimote, with its free and unfree tenants. In any case, the influence of the free tenants as recognised by the common law was decisive, and hardly to be reconciled with the usual feudal notions as to the place occupied by the lord in the community. It must be noted that even that order of things which came into being in consequence of the Statute contains an indirect testimony as to the power of the village community. The Act requires the pasture left to the free tenants to be sufficient, and it may be asked at once, what criterion was there of such a sufficiency, if the number of beasts was not mentioned in the instrument by which the common was held. Of course, in case of dispute, a jury had to give a verdict about it, but what had the jury to go by? It was not the actual number of heads of cattle on a tenement that could be made the starting-point of calculation. Evidently the size of the holding, and its relation to other holdings, had to be taken into account. But if so, then the legal admeasurement had to conform to the customary admeasurement defined by the community.(32*) And so again the openly recognised law of the kingdom had to be set in action according to local customs, which in themselves had no legally binding force.

Besides the land regularly used for pasture, the cattle of the village were sent grazing along the roads (33*) and in the woods.(34*) These last were mostly used for feeding swine. In other respects, also, the wood was subjected to a treatment analogous to that of the pasture land. The right of hunting was, of course, sbjected to special regulations, which have to be discussed from the point of view of forest law. But, apart from that right, the wood was managed by the village community according to certain customary rules. Every tenant had a right to fell as many young trees as he wanted to keep his house and his hedges in order.(35*) It sometimes happens, that the lord and the homage enter into agreement as to the bigger trees, and for every trunk taken by the lord the tenantry are entitled to take its equivalent.(36*) Whenever the right had to be apportioned more or less strictly, the size of the holdings was always the main consideration.(37*)

It would be strange to my purpose to discuss the details of common of estovers, of turbary,(38*) or of fishery. The chief points which touch upon the problems of social origins are sufficiently apparent in the subject of pasture. The results of our investigation may, I think, be summed up under the following heads: --

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

2. The legal arrangement of commons depends on a customary arrangement, in which free and unfree tenants take equal part.(39*)

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

NOTES:

1. Eynsham Cart. 2, c: 'Est quoddam pratum nuncupatum Clayhurste et continet de prato et pastura 35 acras dimidiam rodam 13 perticas. Est ibidem ex parte australi una pecia prati et pasture et continet 10 acras et 7 perticas et nuncupatur twelueacres que annuatim diuiditur in 12 parcellas per le virgam equales, unde dominus habet uno anno i, iii, v, vii, ix et xi, heredes Freman et Walterus le Reue eodem anno habent parcellas ii, iv, vi, viii, x et xii. Alio anno habet dominus parcellas quas tenentes habuerunt et tenentes parcellas domini. Et sic annuatim habet dominus quinque acras, tres perticas et diidiam perticam.' Cf. 23, c: 'Memorandum quod in prato de Landemede sunt sex parcelle bundate quarum prima parcella nuncupata Stubbefurlong continet 4 acras et dimidiam rodam et est domini anno incarnacionis Domini impari et tenencium anno incarnacionis Domini pari. Quandovero est tenencium, diuiditur per sortem.'

2. A very good instance is supplied by Williams, Rights of Common, 89, 9o. Cf Birkbeck, Sketch of the Distribution of Land in England, 19.

3. Gloucester Cart. iii. 67 (Extenta de Berthona Regis): 'De pastura separabili dicunt quod Rex habet quandam moram quae continet 4 1/2 acras et valet 4 solidos et potest sustinere 12 boves per nouem menses. Item de pastura inseparabili dicunt quod Abbas Gloucestriae debet invenire pasturam ad I8 boves domini Regis, et ad 2 vaccas, et 2 afros, a vigilia Pentecostes quousque prata sint falcata, levata et cariata.' Exch. Q. R. Treas. of Rec. 59/69: 'item dicunt quod sunt ibi de pastura separabili 50 acrae et valet acra 3 d.'

4. Eynsham Cart. 3, b: 'Dicunt eciam quod omnia prata pasture domini et omnes culture non seminate et [que] deberent seminari sunt separalia per tempus predictum.' 10, b: 'Et sunt dicte pasture separales quousque blada circumcrescentia asportentur.' A curious case is the following; ibid., 3, b: 'Dicunt eciam quod dominus tenetur pratum suum de Langenhurst custodire nec potest attachiare malefactores in eodem a solis ortu usque ad occasum, aliis temporibus... licet, et est separale a festo annunciacionis beate Marie usque gulam Augusti.'

5. Domesday of St. Paul's, 69: 'Non est ibi certa pastura nisi quando terre dominice quiescunt alternatim inculte.' Cf 59: 'Non est ibi pastura nisi cum quiescit dominicum per wainnagium... possunt ibi esse 4 sucs cum uno verre et suis fetibus et 4 vacce cum suis fetibus si quiescunt pasture dominice alternatim.' Rot. Hundr. ii. 768, b: 'Item porci eius et aliorum vicinorum suorum pascent in campis dominicis extra tassum dum bladum domini stat in campis, et post bladum domini cariatum ibunt in campis per totum e omnes alie bestie ejus et aliorum vicinorum suorum pascent per totum in stipulo domini sine imparcamento.'

6. Glastonbury Cart., Wood MSS. 1 (Bodleian), f 182, b. Cf f 239, 240: 'Memorandum anni 1243 de amensuratione pasture... dicunt precise quod ad quamlibet hidatam terre in eadem villa pertinent 16 boues ad terram excolendam, 4 vacce, 4 averia, 50 bidentes et 6 porci... ad unam virgatam terre pertinent 4 boues, et 2 vacce, et 1 auerium, et 3 porci et 12 bidentes ad tantam terram colendam et sustinendam.' Leigerbook of Kirkham Priory, Yorkshire, Fairfax MSS. 7, f 8 a: 'Amensuratio pasture de Sexendale facta anno regni regis Henrici filii regis Iohannis 36to... qui dicunt per sacramentum suum quod quelibet bouata terre in Sexendale potest sustinere duo grossa animalia, 30 oues cum sequela unius anni, duos porcos sine sequela et 3 aucas cum sequela dimidii anni, ct non amplius.'

7. In a case of 1233 (Note-book of Bracton, 749) it is complained, -- 'Cum idem Robertus non possit aliena aueria in pasturam illam recolligere, scil. hominum alterius religionis,' etc.

8. Note.book of Bracton, pl. 174: 'Dicunt eciam quod in manerio de Billingiheie, sicut inquirere possunt, sunt 12 carucate terre tam in certa terra quam in marisco predicto, scilicet sex carucate de certa terra et sex carucate in marisco, et in Northkime sunt sex carucate terre et quatuor bouate tam in certa terra quam in marisco predicto, set nesciunt aliquam distinctionem quantum sit in certa terra et quantum in marisco nec aliquid inquirere potuerunt de metis infra mariscos illos.'

9. Note-book of Bracton, pl. 749: 'Robertus de Spraxtona summonitus fuit ad warantizandum Abbati de Riuallibus 42 acras terre et pasturam ad 30 uaccas cum uno tauro et 48 boues et 40 oues cum pertinenciis in Sproxtona que tenet et de eo tenere clamat, et unde cartam Simonis de S. auunculi sui cuius heres ipse est habet,' etc.

10. Note-book of Bracton, pl. 818: 'Et Saherus et Matillis per attornatos suos ueniunt et dicunt quod semper, a conquestu Anglie usque nunc commuicauerunt cum eodem Roberto et antecessoribus suis in Locke, et idem Robertus et antecessores semper communicauerunt in terris ipsorum S. et M. in Gaham... et unde dicunt quod si idem Robertus uelit se retrahere de communa quam habet in terris ipsorum, ipsi nolunt se retrahere et dicunt quod semper communicauerunt horn underhorn... Et Robertus uenit et dicit quod nec ipse nec antecessores unquam communam habuerunt in Locke nisi post gwerram et per vim etc. scil. post gwerram motam inter regem S. et homines suos.' Spelman renders the horn unherhorn by, horn with horn,' but the editor of Bracton's Note-book thinks, and I believe rightly, that the phrase means a common for all manner of horned beasts. Brunner has translated it by, gemeinschaftlich-durcheinander.'

11. Rot. Hundr. ii. 605, e: 'In dicto manerio 1 maguus boscus qui continet 300 acras in quo quidem bosco homines propinquarum villarum ut Wardeboys. Wodehirst, Woldhirst, Sti Ivonis, Niddingworth et Halliwell communicant omnes bestias suos pascendo cum sokna de Sumersham.' Note book of Bracton, 1194: 'Iuratores dicunt quod mora illa ampla est et magna et nesciunt aliquas divisas quantum pertinet ad unam uillam, quantum ad aliam.' In the case of forest land many villages enjoyed and still enjoy rights of intercommoning over a wide space. The case of Epping is the familiar example.

12. Eynsham Cart. 3, b: 'Dicunt eciam quod dominus et villata de Shyfford intercommunicant cum villatis de Stanlake, Brytlamptone et Herdewyk a gula Augusti usque festum Sti Martini, cum villatis vero de Astone Cote et Elcforde a festo Sti Michaelis usque dictum festum Sti Martini.'

13. Note-book of Bracton, pl. 914: 'Et Thomas venit et dicit quod nullam communam clamat in Oure, set uerum uult dicere. Certe diuise et mete continentur inter terram Prioris de Oure et terram ipsius Thome de Merkwrthe et quamdiu placuit eidem Priori habere aesiam in terra ipsius Thome in Markwrthe habuit ipse Thomas aesiam in terra ipsius Prioris de Oure, et si Prior uult subtrahere se, ipse libentr subtrahet se.'

14. The relation between this writ and the action, quod reddat ei tantam pasturam, is well illustrated by a case of 1230 (Note-book of Bracton, pl. 392): 'Ricardus de Willeye et Iohanna de Willeye summoniti fuerunt ad respondendum Willelmo de Kamuilla quo iure communam pasture exigunt in terra ipsius W. in Arewe, desicut idem Willelmus nullam commUnam habet in terris ipsorum Ricardi et Iohanne, nec ipsi Ricardus et Johanna seruicium faciunt quare communam habere debeant,' etc...., Et quia Willelmus cognoscit quod habet communam quantamcumque licet paruam, consideratum est quod nichil capiat per breue istud et sit in misericordia pro falso clamore et perquirat sibi per aliud breue sicut per breue quod reddat ei tantam pasturam,' etc. One may say that the Quo Jure was an, actio negatoria.'

15. Note-book of Bracton, pl. 561: 'Et quia Simon non potest dedicere quin terra illa ubi communa est sit de 1 frodo et una uilla, consideratum est quod ipsa communicet cum eodem Simone in terra ipsius Simonis,' etc.

16. Scrutton, Commons and Common Fields. 42.

17. Page 37.

18. Bracton, f 223, a: 'Non debet dici communia quod quis habuerit in alieno... cum tenementum non habeat ad quod possit communia pertinere, sed potius herbagium dici debet quam communia, cum hoc posset esse personale quid.'

19. Bracton, f 226, b: 'Item dicere potest quod nulla communia pertinet ad tale tenementum, quia illud fuit aliquando foresta, boscus, et locus vastae solitudinis et communia, et iam inde efficitur assartum, vel redactum est in culturam, et non debet communia pertinere ad communiam, et ubi omnes de patria solebant communicare.'

20. Bracton, f 229, a: 'Hoc non erit intelligendum quod omni tempore, nisi tantum temporibus competentibus, scilicet post blada asportata et fena levata, vel quando tenementum iacet incultum et ad waractum.'

21. Bracton, f 228, b: 'Item eodem modo si ita feoffatus fuerit quis, sine expressione numeri vel generis, sed ita, cum pastura quantum pertinet ad tantum tenementum in eadem villa. talm ligat constitutio sicut prius cum expressione: quia cum constet de quantitate tenementi, de facili perpendi poterit de numero aueriorum, et etiam de genere, secundum consuetudinem locorum.'

22. Scrutton, 55.

23. Cartulary of Christ Church, Harl. MSS. 1006, p. 3: 'Prior et conventus est capitalis dominus commune pasture de B.'

24. Ely Cart.. Cotton MSS. Claudius, xi, f iii, a: 'In L. debet villata communicare cum suis averiis propriis cum domino Episcopo. Et si dominus voluerit, ibidem possunt habere extranei bestias pro denariis. Set inde habebunt liberi homines de W. quemlibet septimum denarium preter decimum.'

25. Registrum cellararii of Bury St. Edmunds, Cambr. Univ., Gg. iv. 4, f 31, b: 'Et notandum quod inquisitio super calumpnia Egidii de Neketona clamantis quod abbas non haberet communam infra precinctum villate de Bertone scribitur in forma (tali),' etc.

26. Cart. of Christ Church, Canterbury, Add. MSS. 6159. f 21, b: 'Sciendum quod dominus potest habere in communia pasture de bosco cum aisiamento friscorum et dominicorum domini tempore apto c bidentes per maius centum.'

27. Bracton, f 228, b: 'Inprimis videndum est qualiter constitutio illa sit intelligenda, ne male intellecta trahat utentes ad abusum... non omnes nec in omnibus per constitutionem restringuntur, et ideo videndum erit utrum feoffati fuerint large, scilicet per totum, et ubique, et in omnibus locis, et ad omnia averia et sine numero... tales non ligat constitutio memorata, quia feoffamentum non tollit licet tollat abusum.'

28. Note-book of Bracton, 1975.

29. Note-book of Br