Читать книгу The History of English Law before the Time of Edward I - Frederic William Maitland - Страница 21

CHAPTER I

Tenure

Arrangement of this book.How best to arrange a body of medieval law for the use of modern [p.207] readers is a difficult question. Of the two obvious methods each has its disadvantages. On the one hand, if we were to adopt the arrangement which would be the best for a code or digest of our modern law, though we might possibly succeed in forcing the old rules into new pigeon-holes, we should run a great risk of ignoring distinctions which our ancestors saw, and a yet greater risk of insisting on distinctions which for them had no existence. On the other hand, were we to aim at such an arrangement as a medieval lawyer would have adopted, the result would be to hide those matters which interest us behind the intricate mass of procedural rules which interested him. The nature of both these dangers may be explained by a few words.

Possible methods of arrangement. (1) The medieval scheme of law. The arrangement of Bracton’s treatise will for a moment seem one that is familiar enough to every lawyer; it is the most famous of all schemes. Following the Institutes, he treats of Persons, Things, Actions. But if we may take the number of folios given to each of these topics as an indication of its importance in his eyes, we find that the relation between them may be expressed by the figures 7: 91: 356.¹ Nor is this all. It is to his “law of actions” that we must often look for substantive English law. To a high degree in his treatment of “persons,” to a less, but marked, degree in his treatment of “things,” he is dependent on Azo and Roman Law. It is only as he approaches the law of “actions” that we begin to know that he is giving [p.208] us practicable English law and not speculative jurisprudence. As to Glanvill, the whole of his book is, we may say, devoted to the law of actions; he plunges at once into an account of the writ of right; and such arrangement as the Leges Henrici have, puts jurisdiction and procedure in the forefront. That characteristic mark of ancient jurisprudence, the prominent place given to what we sometimes speak of as “adjective law,” the apparent subordination of rights to remedies, is particularly noticeable in our own case, and endures until modern times: and naturally, for our common law is the law of courts which gradually acquired their jurisdiction by the development and interpretation of procedural formulas. Still, though we shall have to say much about the “forms of action,” we need not introduce the rules of property law as though they were but subsidiary to the law about assizes, writs of right and actions of trespass.

(2) The modern scheme.The danger that would be run were we to follow the other of the two courses may be illustrated by reference to that division of law into “public” and “private” which seems eminently well suited to be among the first outlines of any institutional work on modern law. Bracton knew of the distinction and could notice it as a matter of scholastic learning; but he makes little use of it.² He could hardly have used it and yet dealt fairly with his materials. Feudalism, we may say, is a denial of this distinction. Just in so far as the ideal of feudalism is perfectly realized, all that we call public law is merged in private law: jurisdiction is property, office is property, the kingship itself is property; the same word dominium has to stand now for ownership and now for lordship. Again, the theory urged by a [p.209] modern writer,³ that “public law” is but a department of the “law of persons,” however inapplicable to modern states, may sometimes be applied with advantage to the middle ages. Any such conception as that of “the state” hardly appears on the surface of the law; no line is drawn between the king’s public and private capacities, or it is drawn only to be condemned as treasonable. The king, it is true, is a highly privileged as well as a very wealthy person; still his rights are but private rights amplified and intensified. He has greater rights than any other lord; but it is a matter of degree; many lords have some “regalities”; the Earl of Gloucester has many, and the Earl of Chester more. Certainly it would be easy for us to exaggerate the approach made in any country, more especially in En gland, to the definite realization of this feudal ideal; but just in so far as it is realized, “public law” appears as a mere appendix to “real property law” modified in particular cases by a not very ample “law of persons.”

Our own course.Now albeit we cannot adopt either of these two methods to the neglect of the other and must consider both medieval lawyers and modern readers, we need not work without a plan. In any body of law we are likely to find certain ideas and rules that may be described as elementary. Their elementary character consists in this, that we must master them if we are to make further progress in our study; if we begin elsewhere, we are likely to find that we have begun at the wrong place. Only some experience of the particular body of law that is in question will direct us to the proper quarter; but as regards the law of the feudal time we can hardly do wrong in turning to the law of land tenure as being its most elementary part. We shall begin therefore by speaking of land tenure, but in the first instance we shall have regard to what we may call its public side; its private side we may for a while postpone, though we must not forget that this distinction between the two sides of property law is one that we make for our own convenience, not one that is imposed upon us by our authorities. From land tenure we shall pass to consider the law of personal condition. The transition will be easy, for the broadest distinction between classes of men, the distinction between freemen and men who are not free, is intricately connected with land tenure, in so much that the same word villenagium is currently [p.210]used to denote both a personal status and a mode of tenure. Then we shall turn to the law of jurisdiction, for this again we shall find to be intertwined with the land law; and along with the law of jurisdiction we must examine “the communities of the land.” Having dealt with these topics we shall, it is hoped, have said enough of political structure and public affairs, for those matters which are adequately discussed by historians of our constitution we shall avoid. Turning then to the more private branches of our law, we shall take as our chief rubrics, “Ownership and Possession,” “Contract,” “Inheritance” and “Family Law,” while our two last chapters will be devoted, the one to “Crime and Tort,” the other to “Procedure.” We are well aware that this arrangement may look grotesque to modern eyes; since, for example, it thrusts the law of persons into the middle of the law of property. Our defence must be that, after many experiments, we have planned this itinerary as that which will demand of us the least amount of repetition and anticipation, and therefore enable us to say most in the fewest words. We shall speak for the more part of the law as it stood in the period that lies between 1154 and 1272. This will not prevent us from making occasional excursions into earlier or later times when to do so seems advisable, nor from looking now and again at foreign countries; but with the age of Glanvill and the age of Bracton, we shall be primarily concerned. Again, we shall be primarily concerned with the evolution of legal doctrines, but shall try to illustrate by real examples some of the political and economic causes and effects of those rules that are under our examination. We have not to write a practical hand-book of medieval law, nor, on the other hand, have we to describe the whole of medieval life.—But an abstract discourse about method is seldom very profitable. Therefore, without more ado, we turn to the law of land tenure and begin with its fundamental dogma.

§ 1. Tenure in General

Derivative and dependent tenure.Every acre of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus:— Z tenet terram illam de . . . domino Rege. The king himself holds land which is in every sense his own; no one else has [p.211] any proprietary right in it; but if we leave out of account this royal demesne, then every acre of land is “held of” the king. The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately. In the simplest case he holds it immediately of the king; only the king and he have rights in it. But it well may happen that between him and the king there stand other persons; Z holds immediately of Y, who holds of X, who holds of V, who holds . . . of A, who holds of the king. Let us take one real instance:—in Edward I.’s day Roger of St. German holds land at Paxton in Huntingdonshire of Robert of Bedford, who holds of Richard of Ilchester, who holds of Alan of Chartres, who holds of William le Boteler, who holds of Gilbert Neville, who holds of Devorguil Balliol, who holds of the king of Scotland, who holds of the king of England.⁴ A feudal ladder with so many rungs as this has is uncommon; but theoretically there is no limit to the possible number of rungs, and practically, as will be seen hereafter, men have enjoyed a large power, not merely of adding new rungs to the bottom of the ladder, but of inserting new rungs in the middle of it. The person who stands at the lower end of the scale, the person who seems most like an owner of the land, and who has a general right of doing what he pleases with it, is said to hold the land in demesne; Z tenet terram in dominico, or in dominico suo.⁵ We suppose that he holds it of Y; in that case Y is the lord (dominus) of Z, and Z is the tenant (tenens) of Y. But Y again is said to hold the land; he holds it however not in demesne but in service (tenet terram illam, non tamen in dominico sed in servitio); and Y again must hold it of someone—let us say of X —whose tenant he will be, who will be his lord, and who also will be said to hold the land in service. Ultimately we shall reach the king; A, or some other person, will hold the land immediately of the king and be his tenant in chief (in capite). Every person who stands between the king and him who holds in demesne, every mesne lord or mesne, is both [p.212] lord and tenant, lord as regards those who stand below him, tenant as regards those who stand above.⁶

Universality of dependent tenure.Before attempting to analyze this notion of dependent and derivative tenure, let us first observe how universally it has been applied.⁷ Not only has every acre of land been brought within its scope, so that the English lawyer cannot admit even a bare possibility of land being holden of no one, but the self-same formula has been made to cover relationships which have little in common. An Earl of Chester, who may at times behave like a sovereign prince, holds his county palatine of the king; the cottier, who like enough is personally unfree, holds his little croft of some mesne lord, or of the king himself. Even when of late a new mode of cultivating the soil has made its appearance and lords have let land to farmers for terms of years at substantial money rents, this new relationship has been brought within the old formula: the lessee holds the land of the lessor. Even when the tenant has no rent to pay, no temporal service to perform, even when the land has been devoted to God and the saints and is possessed by a religious house in free alms, still the formula has been found equal to the occasion: the religious [p.213] community holds the land of the donor. We see at once therefore that the formula must be very elastic, that the notion of tenure must be in the highest degree an abstract notion. In England tenure is no mark of a class, and we may say the same of “feudal” tenure.

Feudal tenure.The term feodum, which in Anglo-French is represented by fe, fie, fee and in English by fee, is one of the words which came in with the Conqueror, and perhaps for a short while it carried about with it a sense of military or noble tenure; but very soon it was so widely used as to imply no more than heritability.⁸ This is its settled sense in the thirteenth century. To say of a tenant that he holds in fee (tenet in feodo) means no more than that his rights are inheritable. He does not hold for life, he does not hold for a term of years, he does not hold as guardian of an heir, or as one to whom the land has been gaged as security for money; he holds heritably and for his own behoof.⁹ But nothing more is implied as to the terms of his holding, the relation between him and his lord. His duties to his lord may be onerous or nominal, noble or humble, military or agricultural, but if his rights are heritable, then he holds in fee and the land is feodum suum, at all events if his tenure has about it no taint of villeinage.¹⁰ Thus we cannot, as continental writers do, treat feudal law as distinct from the ordinary law of the land, a law to be administered by special courts, a law which regulates some but not all of the proprietary [p.214] rights that men have in land. We can hardly translate into English the contrast which Germans draw between Lehnrecht and Landrecht. Our Landrecht is Lehnrecht; in so far as feudalism is mere property law, England is of all countries the most perfectly feudalized. But this truth has another aspect:—our Lehnrecht is Landrecht; feudal law is not a special law applicable only to one fairly definite set of relationships, or applicable only to one class or estate of men; it is just the common law of England. That extensive application of the feudal formula (Y tenet in feodo de X) which is characteristic of England, and which perhaps was possible only in a conquered country, must have impaired its intensive force.¹¹ If it has to describe the relation between the king and the palatine earl, the relation (slight enough in England) between the pious founder and the religious house that he has endowed, the relation between the lord of a manor and the tenants who help to plough and reap his fields, the mere “cash nexus” between a lessor and a lessee who has taken the land heritably at a full money rent, it cannot mean very much. But this collection of the most diverse relationships under one head will have important effects; the lower “tenures” will be assimilated to the higher, the higher to the lower; the “feud” must lose half its meaning by becoming universal.¹²

Analysis of dependent tenure.It is clear then that of dependent or of feudal tenure in general, little can be said: but still some analysis of it is possible. We may at least notice that it seems to be a complex of personal rights and of real rights. On the one hand, the lord has rights against his tenant, [p.215] the tenant rights against his lord: the tenant owes services to his lord, the lord, at least normally, owes defence and warranty to his tenant. On the other hand, both lord and tenant have rights in the land, in the tenement, the subject of the tenure.¹³ The tenant in demesne, the tenant on the lowest step of the feudal scale, obviously has rights in the land, amounting to a general, indefinite right of using it as he pleases. But his lord also is conceived as having rights in the land. We have not adequately described his position by saying that he has a right to services from his tenant. Of him as well as of his tenant it may be said that he holds the land, not indeed in demesne but in service, that the land is his land and his fee, and even that he is seised, that is, possessed of the land.¹⁴ What has been said of the demesne tenant’s immediate lord, may be said also of that lord’s lord; he also has rights in the land and the land is in some sort his. This, when regarded from the standpoint of modern jurisprudence, is perhaps the most remarkable characteristic of feudalism:—several different persons, in somewhat different senses, may be said to have and to hold the same piece of land. We have further to conceive of the service due from the tenant to his lord as being a burden on the tenement. It is service owed by the tenement. This idea is so deeply engrained in the law that the tenement is often spoken of as though it were a person who could be bound by obligations and perform duties: hides and virgates must send men to the war, must reap and mow and do suit of court; “these two half-hides ought to carry the king’s writs whenever they [p.216]come into the county.”¹⁵ But the vast liberty that men have enjoyed of creating new tenures and sub-tenures gives us wonderful complications: the obligation of the tenement has to be kept distinct from the obligation of the tenant. The tenement may be burdened with military service, and yet, as between lord and tenant, the lord and not the tenant may be bound to do it: all the same the land itself is burdened with the duty and the lord’s overlord may have his remedy against the land.

Obligations of the tenant and of the tenement.To take a simple case:—The king has enfeoffed A to hold by military service; A can now proceed to enfeoff B (whether he can do so without the king’s leave is a question which we postpone), and may enfeoff B by some quite other service; B for example is to pay A a money rent. Now as regards the king, the land is burdened with and owes the military service, the king can enforce the service by distraining the land for its performance, that is, by seizing any chattels that are found on it, which chattels will probably belong to B, or (at least in some cases) by seizing the land itself. But A and B on the occasion of the feoffment, though they cannot destroy the king’s right or free the land from the military service, may none the less, as between themselves, settle the incidence of that service: A may agree that he will do it, or the bargain may be that B is to do it, besides paying his money rent to A. The terminology of Bracton’s day and of yet earlier times neatly expresses the distinction between the service which the tenant owes to his immediate lord by reason of the bargain which exists between them, and the service which was incumbent on the tenement whilst it was in the lord’s hand.Intrinsec and forinsec service. The former is intrinsec service, the latter forinsec service; the former is the service which is created by, which (as it were) arises within, the bargain between the two persons, A and B, whose rights and duties we are discussing; the latter arises outside that bargain, is “foreign” to that bargain; nothing that the bargainers do will shift it from the land, though, as between themselves, they can determine its incidence. Suppose that A has undertaken to discharge this burden, then if the king attacks the land in B’ s hand, B will have a remedy against A; there is a special form of action by which such remedy is sought, the action of mesne (breve de medio), very common in the thirteenth century; A who is mesne (medius) between the king and B is bound to “acquit” B of this “forinsec service,” to hold him harmless against the king’s demands.¹⁶ And then, [p.217] if B enfeoffs C, the problem will reappear in a more complicated shape; some new service will perhaps be created; for instance C, who is a parson, is to pray for the soul of B’ s ancestors; but there are two other services incumbent on the land, the rent that B owes to A, the military service that A owes to the king, and in one way or another those services must be provided for. As between themselves, B and C can settle this matter by the terms of their bargain, but without prejudice to the rights of A, and of the king. It is no impossibility that Edward should hold in villeinage of Ralph, who holds in free socage of the Prior of Barnwell, who holds in frankalmoin of Earl Alan, who holds by knight’s service of the king.¹⁷ Just as at the present day one and the same acre of land may be leasehold, copy-hold and freehold—for there is no land without a freeholder—so in the past one and the same acre might be holden by many different tenures. It owed many and manifold services, the incidence of which, as between its various lords and tenants, had been settled by complicated bargaining.¹⁸

[p.218]Classification of tenures. Little more could at this moment be said of tenure in general—an abstraction of a very high order. Efforts, however, had been made to classify the tenures, to bring the infinite modes of service under a few heads, and before the end of the twelfth century the great outlines which were to endure for long ages had been drawn, though neither in Glanvill, nor even in Bracton, do we find just that scheme of tenures which became final and classical. In particular, “fee farm” and “bur-gage” threaten to be coordinate with, not subordinate to, “free socage”; “tenure by barony” is spoken of as something different from “tenure by knight’s service”; and in the north there are such tenures as “thegnage” and “drengage” which are giving the lawyers a great deal of trouble. Still, subject to some explanations which can be given hereafter, we may say that in Bracton’s day tenures are classified thus:—they are either free or not free; the free tenures are (1) frankalmoin, (2) military service, (3) serjeanty, (4) free socage. In this order we will speak of them.¹⁹

§ 2. Frankalmoin

Frankalmoin.At the beginning of the thirteenth century an ever-increasing quantity of land was held by ecclesiastics, regular and secular, in right of their churches by a tenure commonly known as frankalmoin, free alms, libera elemosina. The service implied by this tenure was in the first place spiritual, as opposed to secular service, and in the second place it was an indefinite service. Such at least was the doctrine of later days.²⁰ We may take the second characteristic first. [p.219] At all events in later days,²¹ if land was given to a churchman and there was a stipulation for some definite service albeit of a spiritual kind (for example a stipulation that the donee should sing a mass once a year or should distribute a certain sum of money among the poor), the tenure thus created was called, not frankalmoin, but tenure by divine service; the tenant might perhaps be compelled to swear fealty to his lord, and the performance of the service might be exacted by distress or by action in the king’s courts.²² On the other hand, if the tenant held in frankalmoin, that is, if the terms of the gift (as was often the case) said nothing of service or merely stipulated in a general way for the donee’s prayers, then no fealty was due; and only by ecclesiastical censures could the tenant be compelled to perform those good offices for the donor’s soul that he had impliedly or expressly undertaken. Perhaps this distinction was admitted during the later years of the period with which we are now dealing; but we shall hereafter see that in this region of law there was a severe struggle between the temporal and the ecclesiastical courts, and very possibly an attempt on the part of the former to enforce any kind of service that could be called spiritual would have been resented. The question is of no great importance, because stipulations for definite spiritual services were rare when compared with gifts in frankalmoin.²³

Meaning of “alms.”Here, as in France, the word elemosina became a technical word, but it was not such originally. At first it would express rather the motive of the gift than a mode of tenure that the gift creates. And [p.220] so in Domesday Book it is used in various senses and contexts. In some cases a gift has been made by the king in elemosina, but the donee is to all appearance a layman; in one case he is blind, in another maimed; he holds by way of charity, and perhaps his tenure is precarious. To hold land “in charity” might well mean to hold during the giver’s pleasure, and it may be for this reason that the charters of a later day are careful to state that the gift has been made, not merely in alms, but “in perpetual alms.”²⁴ Then, again, in some parts of the country it is frequently noted that the parish priest has a few acres in elemosina; in one case we learn that the neighbours gave the church thirty acres in alms.²⁵ There are, however, other cases in which the term seems to bear a more technical sense: some religious house, English or French, holds a considerable quantity of land in alms; we can hardly doubt that it enjoys a certain immunity from the ordinary burdens incumbent on landholders in general, including among such landholders the less favoured churches.²⁶ And so again in the early charters the word seems to be gradually becoming a word of art; sometimes we miss it where we should expect to find it, and instead get some other phrase capable of expressing a complete freedom from secular burdens.²⁷ In the twelfth century, the century of new monastic orders, of lavish endowments, [p.221] of ecclesiastical law, the gift in free, pure, and perpetual alms has a well-known meaning.²⁸

Spiritual service.The notion that the tenant in frankalmoin holds his land by a service done to his lord seems to grow more definite in course of time as the general theory of tenure hardens and the church fails in its endeavour to assert a jurisdiction over disputes relating to land that has been given to God. The tenure thus becomes one among many tenures, and must conform to the general rule that tenure implies service. Still this notion was very old.²⁹ In charters of the twelfth century it is common to find the good of the donor’s soul and the souls of his kinsfolk, or of his lord, or of the king, mentioned as the motive for the gift: the land is bestowed pro anima mea, pro salute animae meae. Sometimes the prayers of the donees are distinctly required, and occasionally they are definitely treated as services done in return for the land:³⁰ thus, for example, the donor obliges himself to warrant the gift “in consideration of the said service of prayers.”³¹ Not unfrequently, especially in the older charters, the [p.222]donor along with the land gives his body for burial;³² sometimes he stipulates that, should he ever retire from the world, he shall be admitted to the favoured monastery; sometimes he binds himself to choose no other place of retirement; often it is said that the donees receive him into all the benefits of their prayers.³³

Gifts to God and the saints.We have spoken as though gifts in frankalmoin were made to men; but, according to the usual tenour of their terms, they were made to God. As Bracton says, they were made primo et principaliter to God, and only secundario to the canons or monks or parsons.³⁴ A gift, for example, to Ramsey Abbey would take the form of a gift “to God and St. Benet of Ramsey and the Abbot Walter and the monks of St. Benet,” or simply “to God and the church of St. Benet of Ramsey,” or yet more briefly “to God and St. Benet.”³⁵ The fact that the land was given to God was made manifest by appropriate ceremonies. Often the donor laid the charter of feoffment, or some knife or other symbol of possession upon the altar of the church.³⁶ Clauses denouncing excommunication and damnation against all who should disturb the donee’s possession did not go out of use at the Norman Conquest, but may be found in charters of the twelfth century,³⁷ nor was it uncommon for a religious house to obtain a papal bull confirming gifts already made and thereafter to be made, and, whatever might be the legal effect of such instruments, [p.223] the moral effect must have been great.³⁸ We are not entitled to treat these phrases which seem to make God a landowner as of no legal value. Bracton more than once founds arguments upon them,³⁹ and they suggest that land given in frankalmoin is outside the sphere of merely human justice.

Free alms and forinsec service.In later days the feature of tenure in frankalmoin which attracts the notice of lawyers is a merely negative feature, namely, the absence of any service that can be enforced by the secular courts. But some distinctions must be drawn. The king might give land to a religious house “in free, pure, and perpetual alms,” and in that case not only would no secular service be due from the donee to the donor, but the land in the donee’s hand would owe no secular service at all. But tenure in frankalmoin is by no means necessarily a tenure in chief of the crown; indeed the quantity of land held in chief of the crown by frankalmoin was never very large. It will be understood that an ecclesiastical person might well hold lands, and hold them in right of his church, by other tenures. The ancient endowments of the bishops’ sees and of the greater and older abbeys were held by knight’s service; the bishop, the abbot, held a barony. Beside this, we constantly find religious houses taking lands in socage or in fee farm at rents and at substantial rents, and though a gift in frankalmoin might proceed from the king, it often proceeded from a mesne lord. In this case the mere gift could not render the land free from all secular service; in the donor’s hand it was burdened with such service, and so burdened it passed into the hands of the donee.⁴⁰ If the donee wished to get rid of the service altogether, he had to go to the donor’s superior lords and ultimately to the king for charters of confirmation and release. But, as between themselves, the donor and donee might arrange the incidence of this “forinsec service” as pleased them best. The words “in free, pure, and perpetual alms” seems to have implied that the tenant was to owe no secular service to his lord; but they did not necessarily imply that, as between lord [p.224] and tenant, the lord was to do the forinsec service. And so we find the matter settled in various ways by various charters of donation:— sometimes it is stipulated that the tenant is to do the forinsec service,⁴¹ sometimes the lord burdens himself with this,⁴² often nothing is said, and apparently in such case the service falls on the lord.

Pure alms.Another rule of interpretation appears, though somewhat dimly. In accordance with later books, we have spoken as though a gift in frankalmoin, in free alms, always implied that no secular service was due from the donee to the donor. But the words generally used in such gifts were “free, pure, and perpetual alms,” and in Bracton’s day much might turn on the use of the word “pure.”⁴³ Seemingly there was no contradiction between a gift in “free and perpetual alms” and the reservation of a temporal service, and many instances may be found of such gifts accompanied by such reservations. This will give us cause to believe that the exemption from secular service had not been conceived as the core of tenure in frankalmoin; and if we find, as well we may, that a donor sometimes stipulates for secular service, though he makes his gift not only in free but even in pure alms, our belief will be strengthened.⁴⁴

Free alms and ecclesiastical jurisdiction.The key to the problem is given by the Constitutions of Clarendon (1164). Freedom from secular jurisdiction rather than freedom from secular service has been the focus of frankalmoin. “If,” says the famous document, “a dispute shall arise between a clerk and a layman, or between a layman and a clerk, concerning any tenement which the clerk asserts to be elemosina and the layman asserts to be lay fee, it shall be determined by a recognition of twelve lawful men [p.225] and the judgment of the chief justiciar whether (utrum) the tenement belongs to elemosina or belongs to lay fee. And if it be found to belong to elemosina, then the plea shall go forward in the ecclesiastical court: but if it be lay fee, then in the king’s court, or, in case both litigants claim to hold of the same lord, then in the lord’s court. And in consequence of such a recognition, the person who is seised is not to lose his seisin until it has been deraigned by the plea.”⁴⁵ Let us observe how large a concession to the church the great Henry is compelled to make, even before the murder of Becket has put him in the wrong. This is all that those avitae leges, of which he talks so frequently, will give him, and he claims no more. The clergy have established this principle:—All litigation concerning land held in almoin belongs of right to the ecclesiastical courts. All that the king insists on is this: that, if there is dispute whether the land be almoin or no, this preliminary question must be decided by an assize under the eye of his justiciar. Thus the assize Utrum is established. It is a preliminary process; it will not even serve to give the claimant a possession ad interim; the possessor is to remain possessed; it decides not the title to land, but the competence of courts. Here then we find the essence of almoin as understood in the middle of the twelfth century:—the land is subject to no jurisdiction save that of the tribunals of the church. Even to maintain his royal right to decide the preliminary question of competence was no easy matter for Henry. Alexander III. freely issued rescripts which ordered his delegates to decide as between clerk and layman the title to English land, or at least the possessory right in English lands: he went further, he bade his delegates award possession even in a dispute between layman and layman, though afterwards he apologized for so doing. The avitae leges, therefore, were far from conceding all that the clergy, all that the pope demanded.⁴⁶

[p.226]The Assize Utrum. They conceded, however, more than the church could permanently keep. If as regards criminous clerks the Constitutions of Clarendon are the high-water-mark of the claims of secular justice, as regards the title to lands they are the low-water-mark. In Normandy the procedure instituted by Henry, the Breve de Feodo et Elemosina, which was the counterpart, and perhaps the model, of our own Assisa Utrum, seems to have maintained its preliminary character long after Henry’s son had forfeited the duchy: that is to say, there were cases in which it was a mere prelude to litigation in the spiritual forum.⁴⁷ In England it gradually and silently changed its whole nature; the Assisa Utrum or action Juris Utrum⁴⁸ became an ordinary proprietary action in the king’s court, an action enabling the rectors of parochial churches to claim and obtain the lands of their churches: it became “the parson’s writ of right.”⁴⁹ Between the time of Glanvill and the time of Bracton this great change was effected and the ecclesiastical tribunals suffered a severe defeat.⁵⁰

Defeat of the ecclesiastical claims.The formal side of this process seems to have consisted in a gradual denial of the assize Utrum to the majority of the tenants in frankalmoin, a denial which was justified by the statement that they had other remedies for the recovery of their lands. If a bishop or an abbot thought himself entitled to lands which were [p.227] with-holden from him, he might use the ordinary remedies competent to laymen, he might have recourse to a writ of right. But one class of tenants in frankalmoin was debarred from this remedy, namely, the rectors of parish churches. Bracton explains the matter thus:— When land is given to a religious house, though it is in the first place given to God and the church, it is given in the second place to the abbot and monks and their successors, or to the dean and canons and their successors; so also land may be given to a bishop and his successors. If then a bishop or an abbot has occasion to sue for the land, he can plead that one of his predecessors was seised of it, just as a lay claimant might rely on the seisin of his ancestor. But with the parish parson it is not so; we do not make gifts to a parson and his successors; we make them to the church, e.g. “to God and the church of St. Mary of Dale.”⁵¹ True, that if the parson is ejected from possession, he may have an assize of novel disseisin, for he himself has been seised of a free tenement; but a proprietary (as opposed to possessory) action he cannot bring. He can have no writ of right, for the land has not been given to a parson and his successors, it has been given to the church; he cannot therefore plead that his predecessor was seised and that on his predecessor’s death the right of ownership passed to him; thus the assize Utrum is his only remedy of a proprietary kind.⁵²

The parson and his land.In another context it might be interesting to consider the meaning of this curious argument; it belongs to the nascent law about “corporations aggregate” and “corporations sole.” The members of a religious house can already be regarded as constituting an artificial person; the bishop also is regarded as bearing the persona of his predecessors; the vast temporal possessions of the bishops must have necessitated the formation of some such idea at an early time. But to the parish parson that idea has not yet been applied. The theory is that the parish church itself is the landowner and [p.228] that each successive parson (persona ecclesiae) is the guardian and fleeting representative of this invisible and immortal being.⁵³ It has been difficult to find a “subject” who will bear the ownership of the lands appropriated to parish churches, for according to a view which is but slowly being discarded by the laity, the landowner who builds a church owns that church and any land that he may have devoted to the use of its parson.⁵⁴ However, our present point must be that legal argument takes this form—(1) No one can use the assize Utrum who has the ordinary proprietary remedies for the recovery of land; (2) All or almost all the tenants in frankalmoin, except the rectors of parish churches, have these ordinary remedies; (3) The assize Utrum is essentially the parson’s remedy; it is singulare beneficium, introduced in favour of parsons.⁵⁵ This argument would naturally involve a denial that the assize could be brought by the layman against the parson. According to the clear words of the Constitutions of Clarendon, it was a procedure that was to be employed as well when the claimant was a layman as when he was a clerk. But soon the doctrine of the courts began to fluctuate. Martin Pateshull at one time allowed the layman this action; then he changed his opinion, because the layman had other remedies; Bracton was for retracing this step, because trial by battle and the troublesome grand assize might thus be avoided.⁵⁶ One curious relic of the original meaning of this writ remained until 1285, when the Second Statute of Westminster gave an action to decide whether a piece of land was the elemosina of one or of another church.⁵⁷ The assize had originally been a means of deciding disputes between clerks and laymen, or rather of sending such disputes to the competent courts temporal or spiritual, and the Constitutions of Clarendon contain a plain admission that if both parties agree that the land is elemosina, any dispute between them is no concern of the lay courts.

Meaning of frankalmoin in the thirteenth century.We have been speaking of the formal side of a legal change, but must not allow this to conceal the grave importance of the matters that were at stake. The argument that none but parochial rectors have need of the Utrum, and the conversion of the Utrum from a [p.229] preliminary procedure settling the competence of courts, into a proprietary action deciding, and deciding finally, a question of title to land, involve the assertion that all tenants in frankalmoin (except such rectors) can sue and be sued and ought to sue and be sued for lands in the temporal courts by the ordinary actions. And this, we may add, involves the assertion that they ought not to sue or be sued elsewhere. The ecclesiastical courts are not to meddle in any way with the title to land albeit held in frankalmoin. To prevent their so doing, writs are in common use prohibiting both litigants and ecclesiastical judges from touching “lay fee” (laicum feodum) in the courts Christian; and in Bracton’s day it is firmly established that for this purpose land may be lay fee though it is held in free, pure, and perpetual alms.⁵⁸ The interference of the spiritual courts with land has been hemmed within the narrowest limits. The contrast to “lay fee” is no longer (as in the Constitutions of Clarendon) elemosina, but consecrated soil, the sites of churches and monasteries and their churchyards, to which, according to Bracton, may be added lands given to churches at the time of their dedication.⁵⁹ The royal court is zealous in maintaining its jurisdiction; the plea rolls are covered with prohibitions directed against ecclesiastical judges;⁶⁰ and it is held that this is a matter affecting the king’s crown and dignity—no contract, no oath to submit to the courts Christian, will stay the issue of a writ.⁶¹ But the very frequency of these prohibitions tells us that to a great part of the nation they were distasteful. As a matter of fact, a glance at any monastic annals [p.230] of the twelfth century is likely to show us that the ecclesiastical tribunals, even the Roman curia, were constantly busy with the title to English lands, especially when both parties to the litigation were ecclesiastics. Just when Bracton was writing, Richard Marsh at the instance of Robert Grosseteste was formulating the claims of the clergy:—“He who does any injury to the frankalmoin of the church, which therefore is consecrated to God, commits sacrilege; for that it is res sacra, being dedicated to God, exempt from secular power, subject to the ecclesiastical forum, and therefore to be protected by the laws of the church.”⁶² It is with such words as these in our minds that we ought to contemplate the history of frankalmoin. A gift in free and pure alms to God and his saints has meant not merely, perhaps not principally, that the land is to owe no rent, no military service to the donor, but also and in the first place that it is to be subject only to the laws and courts of the church.⁶³

§ 3. Knight’s Service

Military tenure.We now turn to military tenure, and in the first place should warn ourselves not to expect an easy task. In some of our modern books military tenure has a definiteness and a stability which it never had elsewhere. An army is settled on the land, is rooted in the land. The grades in “the service” correspond to, and indeed are, the grades of landholdership; the supreme landlord is commander-in-chief; each of his immediate tenants is the general of an army corps; the regiments, squadrons, companies, answer to honours or manors or knight’s fees. All is accurately defined; each man knows his place, knows how many days he must fight and with what arms. This “feudal system” is the military system of England from the Norman Conquest onwards throughout the middle ages; by means of it our land is defended and our victories are won in Wales and in Ireland, in Scotland and in France.—When however we look at the facts, all this definiteness, all this stability, vanish. We see growth and decay: we see decay beginning before growth is at an end. Before there is much law about military tenure it has almost ceased to [p.231] be military in any real sense. We must have regard to dates. Every one knows that the military tenure of Charles I.’s reign was very different from the military tenure of Edward I.’s; but this again was very different from the military tenure of Henry I.’s or even of Henry II.’s reign.

Growth and decay of military tenure.Soon after the Conquest a process begins whereby the duty of service in the army becomes rooted in the tenure of land. This goes on for a century; but before it is finished, before the system of knight’s fees has been well ordered and arranged, the kings are already discovering that the force thus created is not what they want, or is not all that they want. It may serve to defend a border, to harry Wales or Scotland for a few weeks in the summer, but for continuous wars in France it will not serve; the king would rather have money; he begins to take scutages. This, as we shall soon see, practically alters the whole nature of the institution. Another century goes by and scutage itself has become antiquated and unprofitable; another, and scutage is no longer taken. Speaking roughly we may say that there is one century (1066–1166) in which the military tenures are really military, though as yet there is little law about them; that there is another century (1166–1266) during which these tenures still supply an army, though chiefly by supplying its pay; and that when Edward I. is on the throne the military organization which we call feudal has already broken down and will no longer provide either soldiers or money save in very inadequate amounts. However, just while it is becoming little better than a misnomer to speak of military tenure, the law about military tenure is being evolved, but as a part rather of our private than of our public law. The tenant will really neither fight nor pay scutage, but there will be harsh and intricate law for him about the reliefs and wardships and marriages that his lord can claim because the tenure is military. Thus in speaking of tenure by knight’s service as it was before the days of Edward I., we have to speak not of a stable, but of a very unstable institution, and if of necessity we describe it in general terms, this should not be done without a preliminary protest that our generalities will be but approximately true. As to scutage, in the whole course of our history this impost was levied but some forty times, and we cannot be certain that the method of assessing [p.232] and collecting it remained constant. An English lawyer turning to study the history of these matters should remember that if Littleton had cared to know much about them, he would have had to devote his time to antiquarian research.⁶⁴

Units of military service.By far the greater part of England is held of the king by knight’s service (per servitium militare): it is comparatively rare for the king’s tenants in chief to hold by any of the other tenures. In order to understand this tenure we must form the conception of a unit of military service. That unit seems to be the service of one knight or fully armed horseman (servitium unius militis) to be done to the king in his army for forty days in the year, if it be called for. In what wars such service must be done, we need not here determine; nor would it be easy to do so, for from time to time the king and his barons have quarrelled about the extent of the obligation, and more than one crisis of constitutional history has this for its cause. It is a question, we may say, which never receives any legal answer.⁶⁵

The forty days.Even the limit of forty days seems to have existed rather in [p.233] theory than in practice, and its theoretic existence can hardly be proved for England out of any authoritative document.⁶⁶ But we hear of some such limit in Norman, French and German law, and attempts have been made to trace it back to the days of the Karlovingian emperors. From the Touraine of the thirteenth century we have a definite statement. “The barons or men of the king are bound, if summoned, to follow him in his host and to serve at their own cost forty days and forty nights with as many knights as they owe him . . . And if the king will keep them more than forty days and forty nights at their cost, they need not stay unless they will; but if the king will keep them at his cost for the defence of the realm, they ought by rights to stay; but if the king would take them out of the realm, they need not go unless they like, after they have done their forty days and forty nights.”⁶⁷ But the force of such a rule is feeble; when in 1226 the Count of Champagne appealed to it and threatened to quit the siege of Avignon, Louis VIII. swore that if he did so his lands should be ravaged.⁶⁸ In England when a baron or knight is enfeoffed, his charter, if he has one, says no more than that he is to hold by the service of one knight or of so many knights. When the king summons his tenants to war, he never says how long they are to serve. The exception to this rule is that they are told by John that they are to serve for two quadragesims, eighty days, at the least.⁶⁹ Occasionally in the description of a military serjeanty, it is said that the serjeant is to serve for forty days, but to this are often added the words “at his own cost,” and we are left [p.234] to guess whether he is not bound to serve for a longer time at his lord’s cost.⁷⁰ In 1198 Richard summoned a tenth part of the feudal force to Normandy; nine knights were to equip a tenth; the Abbot of St. Edmunds confessed to having forty knights; he hired four knights (for his own tenants had denied that they were bound to serve in Normandy) and provided them with pay for forty days, namely, with 36 marks; but he was told by the king’s ministers that the war might well endure for a year or more, and that, unless he wished to go on paying the knights their wages, he had better make fine with the king; so he made fine for £100.⁷¹ In 1277 the knights of St. Albans served in a Welsh campaign for eight weeks; during the first forty days they served at their own cost; afterwards the king paid them wages.⁷² No serious war could be carried on by a force which would dissipate itself at the end of forty days, and it seems probable that the king could and did demand longer service, and was within his right in so doing, if he tendered wages, or if, as was sometimes the case, he called out but a fractional part of the feudal force.⁷³ We have to remember that the old duty of every man to bear arms, at least in defensive warfare, was never—not even in France—completely merged in, or obliterated by, the feudal obligation.⁷⁴ Just when there seems a chance that this obligation may become strictly defined by the operation of the law courts, the king is beginning to look to other quarters for a supply of soldiers, to insist that all men shall be armed, to compel men of substance to become knights, even though they do not hold by military tenure, and to issue commissions of array.

Knight’s fees.But these units of military service, however indeterminate they may be, have become, if we may so speak, territorialized. A certain definite piece of land is a knight’s fee (feodum militis); another tract is conceived as made up of five or ten knight’s fees; another is half, [p.235] or a quarter, or a fortieth part of a knight’s fee, or, to use the current phrase, it is the fee of half, or a quarter, or a fortieth part of one knight (feodum quadragesimae partis unius militis).⁷⁵ The appearance of small fractional parts of a knight’s fee could hardly be explained, were it not that the king has been in the habit of taking money in lieu of military service, of taking scutage or escuage (scutagium), a sum of so much money per knight’s fee. Without reference to this we might indeed understand the existence of halves of knight’s fees, for practice has sanctioned the equation duo servientes = unus miles, two serjeants will be accepted in lieu of one knight;⁷⁶ but a fortieth part of the service of one knight would be unintelligible, were it not that from time to time the service of one knight can be expressed in terms of money. Already in Henry II.’s reign we hear of the twelfth, the twenty-fourth part of a knight’s fee;⁷⁷ in John’s reign of the fortieth;⁷⁸ and we soon hear of single acres which owe a definite quantum of military service, or rather of scutage.

Varying size of knight’s fees.To represent to ourselves the meaning and effect of this apportionment is no easy matter. In the first place, we have to observe that the term “knight’s fee” does not imply any particular acreage of land. Some fees are much larger than others. This truth has long been acknowledged and is patent.⁷⁹ We may indeed see in some districts, for example among the knights of Glastonbury, many fees of five hides apiece;⁸⁰ but in a single county we may find a hide of land reckoned as a half, a third, a fourth, a fifth, and a sixth of a knight’s fee.⁸¹ In the north of England one baron holds sixteen carucates by the service of ten knights, while in another barony the single knight’s fee has as many as fourteen carucates.⁸² The fees held of the Abbot of Peterborough were extremely small; in some [p.236] cases he seems to have got a full knight’s service from a single hide or even less;⁸³ on the other hand, a fee of twenty-eight carucates may be found;⁸⁴ and of Lancashire it is stated in a general way that in this county twenty-four carucates go to the knight’s fee.⁸⁵ In one case, perhaps in other cases, the law had made some effort to redress this disparity: the fees of the honour of Mortain were treated as notoriously small; three of them were reckoned to owe as much service as was owed by two ordinary fees.⁸⁶ Perhaps a vague theory pointed to twenty librates of land as the proper provision for a knight; but even this is hardly proved.⁸⁷

Nature of the apportionment.Another difficulty arises when we ask the question, what was the effect of this apportionment, and in particular what persons did it bind? Modern lawyers will be familiar with the notion that an apportionment of a burden on land may be effectual among certain persons, ineffectual as regards others. Let us suppose that A owns land which is subject to a rent-charge of £100 in favour of M and a land-tax of £10 per annum; he sells certain acres to X; A and X settle as between themselves how the burdens shall be borne; they agree that each shall pay a half, or perhaps one of them consents to accept the whole burden. Now, allowing that this is an effectual agreement between them, we still have the question whether it can in any way affect the rights of M or of the king, who have hitherto been able to treat the whole land as subject to the whole rent-charge and the whole tax. It will not therefore surprise us if we find that the apportionment of military service was not absolute.

The apportionment between the king and his tenant in chief.We may begin by considering the relation between the king and his tenants in chief. We have good reason to believe that the Conqueror when he enfeoffed his followers with tracts of forfeited land defined the number of knights with which they were to supply [p.237] him, and also that he defined the number of knights that were to be found by the cathedral and monastic churches whose land had not been forfeited. It would not be true to say that in this way the whole of England was, as between the king and his immediate tenants, cut up into knights’ fees. From the Conquest onwards he had immediate tenants who held of him by frankalmoin, by serjeanty, in socage; still in this manner a very large part of England was brought within the scope of military contracts or what could be regarded as such. How definite these contracts were we cannot say, for to all seeming they were not expressed in writing. The only documentary evidence that the great lord of the Conqueror’s day could have produced by way of title-deed, was, in all probability, some brief writ which commanded the royal officers to put him in seisin of certain lands and said nothing about the tenure by which he was to hold them. And again, in the case of the churches, if we speak of a contract, we are hardly using the right word; it was in the king’s power to dictate terms, and he dictated them. Whether in so doing he paid much or any regard to the Old English law and the ancient land-books, is a question not easily decided, for we know little of the legal constitution of Harold’s army. The result was capricious. The relative wealth of the abbeys of Peterborough, St. Edmund’s, St. Albans and Ramsey cannot have been expressed by the figures 60 : 40 : 6 : 4, which represented their fighting strength in the twelfth century; St. Albans may have profited by a charter of King Offa, at which modern diplomatists have looked askance.⁸⁸ But, at any rate as regards the forfeited lands of the English nobles, William had a free hand; he could stipulate for so many units of military service from this count and so many from that baron. Apparently he portioned out these units in fives and tens. The number of knights for which a great baron is answerable in the twelfth century is generally some multiple of five, such as twenty, or fifty. The total number of knights to which the king was entitled has been extravagantly overrated. It was certainly not 60,000, nor was it 32,000; we may doubt whether it exceeded 5,000. The whole [p.238] feudal array of England would in our eyes have been but a handful of warriors. He was a powerful baron who owed as many as sixty knights. We are not arguing that William introduced a kind of tenure that was very new in England; but there seems to be no room for doubt that the actual scheme of apportionment which we find existing in the twelfth and later centuries, the scheme which as between king and tenant in chief makes this particular tract of land a fee of twenty or of thirty knights, is, except in exceptional cases, the work of the Conqueror.⁸⁹

Honours and baronies.At any rate in Henry II.’s day the allotment of military service upon the lands of the tenants in chief may be regarded as complete. It is already settled that this tenant in chief owes the king the service of one knight, while another owes the service of twenty knights. Historians have often observed that the tenants in chief of the Norman king, even his military tenants in chief, form a very miscellaneous body, and this is important in our constitutional history; a separation between the greater and the lesser tenants must be effected in course of time, and the king has thus a power of defining what will hereafter be the “estate” of the baronage. In Henry II.’s day the king had many tenants each of whom held of him but one knight’s fee, or but two or three knights’ fees. On the other hand, there were nobles each of whom had many knights’ fees; a few had fifty and upwards. Now to describe the wide lands held of the king by one of his mightier tenants, the terms honour and barony were used. Between these two terms we can draw no hard line; honour seems to be generally reserved for the very largest complexes of land, and perhaps we may say that every honour was deemed a barony, while not every barony was usually called an honour; but this seems a matter settled by fashion rather than by law; for instance, it is usual to give the name barony, not honour, to the lands which a bishop holds by military service, though some of these baronies [p.239] were very large.⁹⁰ To mark the inferior limit of the honours and baronies is not easy. We cannot say that any particular number of knights’ fees was either necessary or sufficient to constitute a barony; in particular, we cannot accept the theory current in after times, that a barony contains thirteen knights’ fees and a third, and therefore is to a knight’s fee as a mark is to a shilling.⁹¹ This equation seems to have been obtained, not by an inductive process, but by a deduction, which started with the rule that while the relief paid for a single knight’s fee was a hundred shillings, that paid for a barony was a hundred marks. But neither can we make the facts square with this theory, nor, as will be seen below, can we treat the rule about reliefs as being so ancient as the constitution of baronies.⁹² Nor must we think of the barony or honour as surrounded by a ring-fence; fragments of it will often lie scattered about in various counties, though there is some castle or some manor which is accounted its “head.”

The barony or honour as a complex of knights’ fees.We find it said of a man not only that he holds a barony (tenet baroniam), but also that he holds by barony (tenet per baroniam). This phrase will deserve discussion hereafter; for the present it is only necessary to notice that every military tenant in chief of the king, whether he has a barony or no, is deemed to owe the service of a certain number of knights. That number may be large or small. Let us suppose that in a given case it is fifty. Then in a sense this tenant may be said to hold fifty knights’ fees. But all the land, at least if all of it be held by one title, and every part of it, is answerable to the king for the fifty knights. This tenant may enfeoff some fifty knights, making each of them liable to serve in the army; he may enfeoff more, giving each feoffee but a fractional part of a fee, that is to say, making him answerable for but a fractional part of one knight’s service; he may enfeoff fewer, making each of them answerable for the service of several knights; he may retain much land in his own hand, and look to hiring knights when they are [p.240] wanted. But, as between the king and himself, he has fifty knights’ fees; he is answerable, and the land that he holds is answerable, for the production of fifty men. Every acre in the honour of Gloucester was liable to the king for the service of some two hundred knights and more. If the Earl of Gloucester makes default in providing the due number of knights, the king may distrain throughout the honour, or seize the honour into his hands. The exact nature of the power which a lord had of exacting service due to him from a tenement need not be here considered; but the main principle, which runs through the whole law on this subject, is that the service due from the tenant is due also from the tenement, and can be enforced against the tenement into whosesoever hands it may come, regardless of any arrangement that the tenant may have made with his subtenants.

Relativity of the knight’s fee.This may be illustrated by the case of lands held in frankalmoin of a mesne lord, who himself holds by military service. In this case something like an exception was occasionally admitted. The canons of Wroxton held land in frankalmoin of John Montacute; the land was distrained for scutage; but on the petition of the canons, the sheriff was bidden to cease from distraining, “because the frankalmoin should not be distrained for scutages so long as John or his heirs have other lands in the county whence the scutages may be levied.” This is an exception, and a carefully guarded exception; if the tenant has given land in frankalmoin, the king will leave that land free from distress, provided that there be other land whence he can get his service.⁹³ Thus, let us say that a baron holds twenty knights’ fees, and has twenty knights each enfeoffed of a single fee; the boundaries between these fees in no way concern the king; the whole tract of land must answer for twenty knights. An early example of this may be given:—at some time before 1115 the Bishop of Hereford gave Little Hereford and Ullingswick to Walter of Gloucester for the service of two knights; Walter gave Ullingswick as a marriage portion for his daughter Maud free from all knight’s service, and thus, as between all persons claiming under him, the whole service of two knights was thrown on to Little Here ford. Thus really “a knight’s fee” is a relative term; what is two knights’ [p.241] fees as between C and B, is but part of two as between B and A.⁹⁴ In the time of Henry II. when the king was beginning to take stock of the amount of military service due to him, it was common for a tenant in chief to answer that he confessed the service of, for example, ten knights, that he had five knights enfeoffed each of a knight’s fee, and that the other five he provided from his demesne.⁹⁵ In one case, even at the end of the thirteenth century, a lord had not carved out his land into geographically distinct knights’ fees. Somehow or another the Abbot of Ramsey held his broad lands by the service of only four knights, and we may therefore say that he had four knights’ fees. But those fees were not separated areas; he had a number of tenants owing him military service; they chose the four who on any particular occasion should go to the war, and the others contributed to defray the expense by an assessment on the hide.⁹⁶ Thus the statement that a man holds a barony, or a parcel of knights’ fees, of the king, tells us nothing as to the relationship between him and his tenants, and does not even tell us that he has any tenants at all.

Duty of the military tenant in chief.The military tenant in chief of the crown was as a general rule bound to go to the war in person. If he held by the service of fifty knights, he was bound to appear in person with forty-nine. If he was too ill or too old to fight, he had to send not only a substitute but also an excuse.⁹⁷ Women might send substitutes and so might [p.242] ecclesiastics.⁹⁸ The monks of St. Edmunds thought it a dangerous precedent when in 1193 Abbot Samson in person led his knights to the siege of Windsor.⁹⁹ How the nature of this obligation was affected by the imposition of scutage is a question that we are not as yet prepared to discuss.

Position of the military subtenant.We must first examine the position of a tenant who holds by knight’s service of a mesne lord, and we will begin with a simple case. One A holds a mass of lands, it may be a barony or no, of the king in chief by the service of twenty knights, and B holds a particular portion of these lands of A by the service of one knight. Now in the first place, B’ s tenement, being part of A’ s tenement, owes to the king the service of twenty knights; it can be distrained by the king for the whole of that service. But, as between A and B, it owes only the service of one knight, and if the king distrains it for more, then A is bound to acquit B of this surplus service; this obligation can be enforced by an action of “mesne.”¹⁰⁰ On the other hand, B has undertaken to do for A the service of one knight. The nature of this obligation demands a careful statement:— B is bound to A to do for A a certain quantum of service in the king’s army. We say that B is bound to A; B is not bound to the king; the king it is true can distrain B’ s tenement; but between B and the king there is no personal obligation.¹⁰¹ The king cannot by reason of tenure call upon B to fight; if somehow or other A provides his twenty knights, it is not for the king to complain that B is not among them.¹⁰² None the less, the service that B is bound to do, is service in the king’s army. Here we come upon a principle of great importance. According to the law of the king’s court, no tenant is bound to fight in any army but the king’s army, or in any quarrel but the king’s quarrel. It might well have been otherwise; we may see that it nearly was otherwise; we may be fairly certain that in this respect the law was no adequate expression of the current morality; still we cannot say [p.243] that the law of England ever demanded private warfare.¹⁰³ Indubitably the military tenant often conceived himself bound to fight for his lord in his lord’s quarrel; but the law enforced no such obligation. True, the obligation which it sanctioned was one that bound the man to the lord, and in a certain sense bound him to fight for his lord. It was at the lord’s summons that the man came armed to the host, and if the lord had many knights, the man fought under the lord’s banner; still he was only bound to fight in the king’s army and the king’s quarrel; his service was due to his lord, still in a very real sense it was done for the king and only for the king:—in short, all military service is regale servitium. It is the more necessary to lay stress upon this principle, for it had not prevailed in Normandy. The Norman baron had knights who were bound to serve him, and the service due from them to him had to be distinguished from the service that he was bound to find for the duke. The Bishop of Coutances owed the duke the service of five knights, but eighteen knights were bound to serve the bishop. The honour of Montfort contained twenty-one knights’ fees and a half for the lord’s service; how many for the duke’s service the jurors could not say. The Bishop of Bayeux had a hundred and nineteen knights’ fees and a half; he was bound to send his ten best knights to serve the king of the French for forty days, and, for their equipment, he took twenty Rouen shillings from every fee; he was bound to find forty knights to serve the duke of Normandy for forty days, and for their equipment he took forty Rouen shillings from every fee; but all the hundred and nineteen knights were bound to serve the bishop with arms and horses.¹⁰⁴

Knight’s service due to a lord who owes none.As a matter of fact, however, we sometimes find, even in England, that knight’s service is due, at least that what is called knight’s service is due, to a lord who owes no knight’s service to the king or that more knight’s service is due to the lord than he owes to the king. One cause of this phenomenon may be that the lord is an ecclesiastic who has once held by military service, but has succeeded in getting his tenure changed to frankalmoin by the piety [p.244] of the king or the negligence of the king’s officers. The chronicler of the Abbey of Meaux tells us how the abbot proved that he held all his lands in Yorkshire by frankalmoin and owed no military service, and then how he insisted that lands were held of him by military tenure and sold the wardships and marriages of his tenants.¹⁰⁵ Since he was not bound to find fighting men, his tenants were not bound to fight; still their tenure was not changed; he was entitled to the profitable casualties incident to knight’s service. A similar result might be obtained by other means. The Abbot of St. Edmunds held his barony of the king by the service of forty knights; such at least was the abbot’s view of the matter; but he had military tenants who, according to his contention, owed him altogether the service of fifty-two knights: or, to put it another way, fifty-two knights’ fees were held of him, though as between him and the king his barony consisted of but forty.¹⁰⁶ The view taken by the knights was that the abbot was entitled to the service of forty knights and no more; the fifty-two fees had to provide but forty warriors or the money equivalent for forty. But in Richard I.’s day Abbot Samson, according to the admiring Jocelin, gained his point by suing each of his military tenants in the king’s court. Each of the fees that they held owed the full contribution to every scutage and aid, so that when a scutage of 20 shillings was imposed on the knight’s fee, the abbot made a clear profit of £12.¹⁰⁷ Bracton says distinctly that the tenant in socage can create a military subtenure. This, however, seems to mean that a feoffor may, if he chooses, stipulate for the payment of scutage, even though the tenement owes none to the king. In such case the scutage may seem to us but a rent capriciously assessed, but apparently Bracton would call the tenure military, and it would [p.245] serve to give the lord the profitable rights of wardship and marriage.¹⁰⁸ The extraordinary licence which men enjoyed of creating new tenures gave birth to some wonderful complications. If B holds a knight’s fee of A, then A can put X between himself and B, so that B will hold of X and X of A; but further, the service by which X will hold of A need not be the service by which B has hitherto been holding of A and will now hold of X. In Richard’s reign Henry de la Pomerai places William Briwere between himself and a number of tenants of his who altogether owe the service of 5⁵⁄24 knights or thereabouts; but William is to hold of Henry by the service of one knight.¹⁰⁹ To “work out the equities” arising between these various persons would be for us a difficult task: still no good would come of our representing our subject-matter as simpler than really it is. Lastly, as already hinted, we must not suppose that the barons or even the prelates of the Norman reigns were always thinking merely of the king’s rights when they surrounded themselves with enfeoffed knights. They also had their enemies, and among those enemies might be the king. Still the only military service demanded by anything that we dare call English law was service in the king’s host. It would further seem, that Henry II., not without some success, endeavoured to deduce from this principle the conclusion that if a tenant in chief enfeoffed more knights than he owed to the king, he thereby increased the amount of the service that the king could demand from him. Such a tenant in chief had, we may say, been making evidence against himself: this was the opinion of his royal lord.¹¹⁰

Scutage.The practice of taking scutages must have introduced into the system a new element of precision and have occasioned a downward spread of the tenure that was called military. The extent of the obligation could now be expressed in terms of pounds, shillings and pence; and tenants who were not really expected to fight might be bound to pay scutage. On the other hand, the history of scutage is full of the most perplexing difficulties. Before approaching these we will once more call to mind the fact that scutage is an impost of an occasional kind, that there never were more than forty scutages or thereabouts.

[p.246]Nature of scutage. We are wont to think of scutage as of a tax introduced by Henry II. in the year 1159, a tax imposed in the first instance on the military tenants in chief by way of commutation for personal service, a tax which they in their turn might collect from their subtenants. But it seems extremely probable that at a much earlier date payments in lieu of military service were making their appearance, at all events in what we may call the outer circles of the feudal system.¹¹¹ In no other way can we explain the existence, within a very few years after 1159, of small aliquot parts of knights’ fees. When it is said that a man holds the twentieth part of a fee, this cannot mean that he is bound to serve for two days in the army; it must mean that he and others are bound to find a warrior who will serve for forty days, and that some or all of them will really discharge their duty by money payments. We read too in very ancient documents of payments for the provision of knights¹¹² and of an auxilium exercitus, the aid for a military expedition.¹¹³ In Normandy the equivalent for our scutage is generally known as the auxilium exercitus.¹¹⁴ In England the two terms seem in course of time to have acquired different meanings; the lord exacted a scutage from his military, his nominally military tenants, while he took an “army aid” from such of his tenants as were not military even in name.¹¹⁵ But what we may call the natural development of a system of commutation and subscription between tenants in the outer circles of feudalism, was at once hastened and perplexed by a movement having its origin in the centre of the system, which thence spread outwards. The king began to take scutages. At this point we must face some difficult questions.

[p.247]Scutage between the king and the tenant in chief. In what, if any, sense is it true that the military service of the tenants in chief was commuted into scutage? The king’s ban goes forth summoning the host to a campaign. It says no word of scutage. Can the baron who owes twenty knights sit at home and say, “I will not go to the war; and if I do not go, no worse can befall me than that I shall have to pay scutage for my twenty fees, and this indeed will be no heavy burden, for I shall be entitled to take a scutage from the knights whom I have enfeoffed”—can the baron say this? Even if he can, we must notice that his self-interested calculations involve one unknown quantity. It may be that on some occasions the king really did give the baron an option between leading his knights to battle and paying some fixed sum. But such was not the ordinary course, at all events in the thirteenth century. The rate at which the scutage was to be levied was not determined until after the defaulters had committed their defaults and the campaign was over; the baron therefore who stayed at home did not know whether he would have to pay twenty marks, or twenty pounds, or forty pounds. But as a matter of fact, we find that in Henry III.’s day and Edward I.’s the tenant in chief who does not obey the summons must pay far more than the scutage; he must pay a heavy fine. No option has been given him; he has been disobedient; in strictness of law he has probably forfeited his land; he must make the best terms that he can with the king. Thus in respect of the campaign of 1230, a scutage of three marks (£2) was imposed upon the knight’s fee; but the Abbot of Evesham had to pay for his 4½ fees, not £9, but £20; the Abbot of Pershore for his 2 fees, not £4, but £10; the Abbot of Westminster for his 15 fees, not 45 marks, but 100 marks.¹¹⁶ In Edward I.’s day the fine for default is an utterly different thing from the scutage; in 1304 he announces that he will take but moderate fines from ecclesiastics and women, if they prefer to pay money rather than send [p.248] warriors.¹¹⁷ We hear of such fines as £20 on the fee when the scutage is but £2 on the fee.¹¹⁸ Furthermore it seems evident that if an option had been given between personal service and scutage, every one would have preferred the latter and the king would have been a sad loser. Perhaps it is not absolutely impossible that Henry II. when he took two marks by way of scutage from each fee, took a sum which would pay a knight for forty days; in other words, that he could hire knights for eightpence a day.¹¹⁹ But while the rate of scutage never exceeded £2 on the fee, the price of knights seems to have risen very rapidly as the standard of military equipment was raised and the value of money fell. In 1198 the Abbot of St. Edmunds hired knights for Normandy at the rate of three shillings a day.¹²⁰ In 1257 the Abbot of St. Albans put into the field an equivalent for his due contingent of six knights, by hiring two knights and eight esquires, and this cost him hard upon a hundred marks, while, as between his various tenants, the rule seems to have been that a knight, who was bound to serve, required two shillings a day for his expenses.¹²¹ At about the same date the knights of Ramsey received four shillings a day from their fellow tenants.¹²² We may be sure that the king did not take from the defaulting baron less than the market value of his military service.

The tenant in chief’s service cannot be discharged by scutage.Thus, so soon as our records become abundant, it seems plain that the tenant in chief has no option between providing his proper contingent of armed men and paying a scutage. The only choice that is left to him is that between obeying the king’s call and bearing whatever fine the barons of the exchequer may inflict upon him for his disobedience. Therefore it seems untrue to say that as between him and the king there is any “commutation of military service,” and indeed for a moment we may fail to see that the king has any interest in a scutage. If he holds himself strictly bound by principles that are purely feudal, the scutage should be nothing to him. From his immediate tenant he will get either military service or a heavy fine, and we may think that the rate of scutage will only determine the amount that can be extracted from the undertenants by lords who have done their service or paid their fines. But this is [p.249] not so.

The scutage of undertenants.We must speak with great diffidence about this matter, for it has never yet been thoroughly examined, and we are by no means sure that all scutages were collected on the same principle. But from the first the king seems to have asserted his right to collect a scutage from the “tenant in demesne” who holds his land by knight’s service. There are two conflicting elements in the impost; it is in part the equivalent for a feudal, a tenurial service; it is in part a royal tax. The king will regard it now as the one, and now as the other, as suits him best. He refuses to be a mere lord of lords; he is also a king of subjects. The undertenant of a mesne lord, if he owes military service, owes a service that is to be done for the king; the king will, if this seems profitable, deal directly with him and excuse him from service on his paying money. And so in the thirteenth century the king, while he is exacting military service or fines from his tenants in chief, will also collect scutage from their military tenants. Theoretically he is not entitled to be paid for the same thing twice over. If a baron has either produced the requisite number of knights or compounded for his breach of contract, it is he and not the king who ought to receive scutage; in the one case he ought to get a scutage from any military tenants of his who have disobeyed his call to arms, in the other all his military tenants may have to pay, though he has not given them a chance of going to the war in person. That this ought to be so, seems to be admitted. Such a baron, having proved that he fulfilled his contract or paid his fine, will have a royal writ de scutagio habendo, whereby the sheriff will be ordered to cause him to have the scutage due from his tenants. Still, before he can get his scutage, he has to obtain something that the king is apt to treat as a favour. Meanwhile the sheriffs will be taking scutage for the king’s use from those who are in occupation of lands on which military service is incumbent, and leaving the various persons who are interested in those lands to settle the incidence of the burden as best they may. What comes into the king’s hands generally stays there. But further, in Henry III.’s time, the [p.250] barons, assuming to act on behalf of the whole community, will on occasion grant to the king a scutage in respect of some military expedition that has taken place, and the meaning of this, at least in some instances, seems to be that in response to the king’s demands, they make over to him the right to collect and to keep the scutages due from their undertenants, scutages which the feudal principle would have brought into their own coffers.¹²³ A national tax is imposed which the undertenants pay to the king. Much will remain obscure until the exchequer rolls have been carefully analyzed; but this at least seems clear, that the tenant in chief’s duty of providing an armed force is not commuted into a duty of paying scutage. Indeed the demand conceded by the Charter of 1215, namely, that no scutage be imposed without the common counsel of the realm, would be barely intelligible, if John had merely been giving his tenants in chief an option between furnishing the due tale of warriors and paying two marks for every fee.¹²⁴

The military subtenants.We must now turn to a simple case and ask a simple question. What was the duty of a man who held by knight’s service of a mesne lord? We will suppose him to hold a single knight’s fee. In the days before scutage his duty probably was to serve in person if summoned by his lord to the king’s host; only with a good excuse might he send a substitute;¹²⁵ but women and ecclesiastics would do their service by able-bodied representatives. Failure to perform this duty would be punished by a forfeiture of the tenement.¹²⁶ But the practice of taking scutages seems to have set up a change, and how far that change went it is hard to decide. The knights began to allege that they were not bound to serve, but were only bound to pay a scutage, and only to pay a scutage when their lords had obtained from the king permission to levy it.¹²⁷ It would further seem [p.251]that many of them made good this assertion by steady perseverance. The lords were often compelled to hire soldiers because their knights—their knights so called, for many a tenant by knight’s service was in habit but a yeoman—would not fight. It would even seem that the tenants as a body got the better in the struggle, and established the rule that if they did not choose to serve, no worse could happen to them, than to be compelled to pay a scutage at the rate fixed by royal decree, a sum much less than they would have spent had they hired substitutes to fill their places. In short, “tenure by knight’s service” of a mesne lord, becomes first in fact, and then in law, “tenure by escuage.”¹²⁸

Tenure by escuage.The stages of this process we cannot trace distinctly, but it was closely connected with the gradual decline and fall of the feudal courts. The lord who kept an efficient court of and for his military tenants might in early days enforce a forfeiture of the tenement for default of service; but the king’s court seems to have given him little or no assistance, and by degrees the remedies afforded by the royal tribunal became the standard of English law.¹²⁹ The process must have been hastened by the subdivision of knights’ fees. [p.252] We come across persons who hold no more than aliquot parts of fees; we find them even in what we may call the primary circle of feudalism, the circle of tenants in chief; they are common in the secondary circle. Sometimes a fee preserves a notional integrity though it has become divided into aliquot parts by subinfeudation or by partition among co-heiresses. The Abbot of St. Albans confessed to holding six scuta or knights’ fees. Each of these scuta was divided among several tenants holding of the abbot. When the king summoned his host, the various tenants of each scutum had to meet and provide a knight; sometimes they did this by hiring a knight, or two serjeants; sometimes they elected one of their number to serve and contributed towards his expenses.¹³⁰ But we soon come upon small fractional parts, the twentieth part or the fortieth part, of fees, which fees have no longer any existence as integral wholes. Such fractions could hardly have come into being but for the practice of taking a scutage in lieu of personal service, and the tenant’s obligation is often expressed in merely pecuniary terms; the charter of feoffment says, not that he is to hold the fortieth part of a knight’s fee, but that when scutage is levied at the rate of 40 shillings on the fee he is to pay a shilling.¹³¹ When the holder of a knight’s fee has cut up a great part of it into little tenements each owing him some small amount of scutage, the understanding probably is that he is to do, or to provide, the requisite military [p.253] service, and is then to take scutage from his tenants. All this must have tended to change the true nature of the obligation even of those tenants who held integral fees. If to hold the fortieth part of a fee merely meant that the tenant had to pay one shilling when a scutage of two pounds per fee was exacted, the tenant of a whole fee would easily come to the conclusion that a payment of forty shillings would discharge his obligation. Thus a permanent commutation into money of the personal service due from the subvassals seems to have taken place.¹³²

The lord’s right to scutage.What is more, the right of a mesne lord to take scutage seems hardly to have been regarded, at least in the thirteenth century, as a right given by the common law. A lord who had done his service, or made fine for not doing it, could with some trouble to himself obtain a writ de scutagio habendo, which ordered the sheriff to collect for him the scutage from his knights’ fees.¹³³ The king is said to grant to the lords their scutage; until the king has fixed the amount there is nothing that they can collect, and few if any of them attempted to collect it without obtaining the king’s writs. Indeed it would seem that, at least in Henry III.’s day, they had no right to collect it. If they did not obtain a grant of scutage from the king, then the king himself took the scutage from their tenants for his own [p.254] use.¹³⁴ As already said, there is in scutage an element of royal and national taxation which is incompatible with purely feudal principles.

Service instead of scutage.Whether the tenant of a mesne lord could insist upon his right to do service in the army instead of paying scutage is a question that we are absolved from discussing, for perhaps it was never raised.¹³⁵ But as regards that duty of “castle-guard” which was a common incident of military tenure, the Great Charter lays down the rule that, if the tenant is willing to do the service in person, he cannot be compelled to pay money instead of doing it.¹³⁶ However, in the course of the thirteenth century this duty also seems to have been very generally commuted for money payments.

Reduction in the number of knights’ fees.One more exceedingly obscure process must be noticed. Somehow or another in the second half of the thirteenth century the tenants in chief succeeded in effecting a very large reduction in the number of fees for which they answered to the king.¹³⁷ When, for example, Edward I. called out the feudal host in 1277, his ecclesiastical barons, who, according to the reckoning of the twelfth century, were holding about 784 fees, would account, and were suffered to account, for but little more than 100, while some 13 knights and 35 serjeants—two serjeants being an equivalent for one knight— were all the warriors that the king could obtain from the lands held by the churches. The Archbishop of York had reduced his debt from twenty knights to five, the Bishop of Ely from forty to six, the Abbot of Peterborough from sixty to five. The lay barons seem to have done much the same. Humphry de Bohun offers three knights as due from his earldom of Essex; Gilbert of Clare, Earl of Gloucester and Hertford, offers ten knights, with a promise that he will send [p.255] more if it be found that more are due. While, however, the lay barons will generally send as many men as they professedly owe, the prelates do not even produce the very small contingents which they acknowledge to be due. Now these magnates were not cheating the king, nor endeavouring to cheat him. It was well known in the exchequer, notorious throughout Cambridgeshire,¹³⁸ that the Bishop of Ely, who would confess to but six fees, had forty at the least. The king was not deceived. The bishop, having sent no knights at all, had to pay a fine of 240 marks, that is, 40 marks for each of the six fees. Some of the prelates, we are told, had to pay as much as 50 marks for every fee,¹³⁹ and yet the scutage for this war was but two pounds, that is, three marks, on the fee. The reduction in the nominal amount of fees for which the baron is compelled to answer is accompanied by an at least proportional increase of the amount that he pays in respect of every fee.

Meaning of the change.This change seems to tell us three things. In the first place, it was impossible for the prelate to get military service out of his military tenants. The practice of subinfeudation, fostered by the king’s court, had ruined the old system. His fees were now split up into small fractions, and they were in the hands of yeomen and small squires. Secondly, he was willing to pay a large sum rather than hire knights. The knight with his elaborate panoply had become a costly article. In the third place, the king by this time wanted money more than he wanted knights; if he had money, he could get soldiers of all sorts and kinds as pleased him best. And so he seems to have winked at the introduction of a new terminology, for really there was little else that was new. Provided that the Bishop of Ely paid him £160 for his Welsh campaign, he did not care whether this was called a fine of six marks for each of forty fees, or a fine of forty marks for each of six fees; while the bishop, who would hardly find six tenants willing to fight, prefers the new set of phrases. But then, our already confused system is further confounded, for the bishop, [p.256] who has but six fees for the king’s service when the call is for warriors or a fine, will assuredly assert that he has, as of old, forty fees when the time comes for him to take a scutage from his tenants, and in this way he may, at the rate of three marks per fee, recover, if he is lucky and persistent, about half the sum that he has had to pay to the king. But in truth, the whole system is becoming obsolete. If tenure by knight’s service had been abolished in 1300, the kings of the subsequent ages would have been deprived of the large revenue that they drew from wardships, marriages and so forth; really they would have lost little else.¹⁴⁰

Military service combined with other services.We have next to observe that a lord when enfeoffing a tenant was free to impose other services in addition to that military service which was incumbent on the land. Suppose that B holds a knight’s fee of A; B may enfeoff C of the fee, stipulating that C shall do the military service and also pay him a rent. Perhaps it was usual that a tenant who held a whole knight’s fee should have no serious service to perform in addition to the military service, though, in such a case as we have put, B would often stipulate for some honorary rent, a pair of spurs, a falcon, or the like. But when we get among the holders of small plots, we constantly find that they must pay scutage while they also owe substantial rents.¹⁴¹ A few entries on the Oxfordshire Hundred Roll will illustrate this. At Rycote, Adam Stanford holds the whole vill of the Earl of Oxford for half a knight’s fee; he has a number of freeholders holding small plots; they pay substantial rents and “owe scutage”; one has a virgate, pays 7 s. 6 d. a year and owes scutage; another holds three acres [p.257] for the rent of a penny and owes scutage.¹⁴² Often it is said of the small freeholders that beside their rent they owe royal or forinsec service (debent regale, debent forinsecum)¹⁴³ and, at least in general, this seems to mean that they pay scutage and are nominally tenants by knight’s service; for Bracton’s rule is clear, namely, that if the tenant owes but one hap’orth of scutage (licet ad unum obolum), his tenure is military, and this rule is fully borne out by pleadings and decisions.¹⁴⁴ This point is important:—the division between tenants in socage and tenants by knight’s service does not correspond, save in the roughest manner, to any political, social or economic division. The small yeoman often holds his little tenement by a tenure which is nominally and legally the same tenure as that by which the knight holds his manor.¹⁴⁵

Castle-guard.With the duty of attending the king in his wars was often coupled the duty of helping to garrison his castles; more rarely the latter duty appears without the former. The knights of the Abbey of Abingdon were bound to guard the king’s castle of Windsor,¹⁴⁶ the knights of the Abbey of Peterborough his castle of Rockingham,¹⁴⁷ the knights of the Abbey of St. Edmund his castle of Norwich. In Henry I.’s day the Bishop of Ely purchased for his knights the privilege of doing ward within the isle instead of at Norwich.¹⁴⁸ Such service was well known in Normandy¹⁴⁹ and France,¹⁵⁰ and is mentioned in Domesday Book.¹⁵¹ The forty or fifty knights of St. Edmunds [p.258] were divided into four or five troops (constabiliae), each of which had to guard Norwich castle for three months in the year.¹⁵² Often a tenement owed “ward” to a far-off castle; thus in Cambridgeshire were lands held of the Count of Aumâle which owed ward to his castle of Craven,¹⁵³ and lands held of the Count of Britanny which owed ward to his castle of Richmond.¹⁵⁴ We speak as though these castles belonged to their tenants in chief; but the kings were wont to regard all castles as in a sense their own, and the duty of castle-guard, like the duty of service in the host, though due to the lord, was to be done for the king. Before the end of the thirteenth century, however, payments in money had usually taken the place of garrison duty.¹⁵⁵

Thegnage and drengage.While the military system of feudalism is thus falling into decay there still may be found in the north of England scattered traces of an older military system. The Norman milites are already refusing to do the service to which their tenure binds them, but there are still in the ancient kingdom of Northumbria thegns holding in thegnage, drengs holding in drengage, thegns who are nominally bound to do the king’s “útware.” Were these tenures military or were they not? That was a puzzle for the lawyers. They had some features akin to tenure by knight’s service, for thegns and drengs had been summoned to fight John’s battles in Normandy; in other respects they were not unlike the serjeanties; they were sometimes burdened with services which elsewhere were considered as marks of villeinage; finally, as it would seem, they were brought under the heading of free socage. In truth they were older than the lawyers’ classification, older than the Norman Conquest.¹⁵⁶

Tenure by barony.Above we have made mention of tenure by barony and passed it by with few words; and few seem needed. True, we may find it said of a man, not only that he holds a barony (tenet baroniam), but also that he holds by barony (tenet per baroniam), and this may look as [p.259] though tenure by barony should be accounted as one of the modes of tenure.¹⁵⁷ But so far as the land law is concerned there seems no difference between tenure by barony and tenure by knight’s service, save in one point, namely, the amount of the relief, about which we shall speak below. So far as regards the service due from the tenant, the barony is but an aggregate of knights’ fees. There is no amount of military service that is due from a tenant by barony as such; but his barony consists of knights’ fees; if it consists of twenty knights’ fees he is answerable for the service of twenty knights, if it consists of fifty knights’ fees, then he must produce fifty. And so, again, with the various incidents of tenure, aids, wardship, marriage, escheat, all save relief; there seem to be no special rules for tenure by barony or for the tenure of a barony; it is but tenure by knight’s service of a certain number of knights’ fees, unless indeed it be—and in some cases it is—tenure by grand serjeanty. The fact that a certain mass of lands is deemed a barony has some few legal consequences of a subordinate kind. Always or generally some castle or some manor is regarded as the head of the barony, and it would seem that for some fiscal and administrative purposes the whole barony was treated as lying in the county that contained its head. Then, again, a widow is not to be endowed with the caput baroniae, and the caput baroniae is not to be partitioned among co-heiresses.¹⁵⁸ Such rules as these may necessitate an inquiry whether a certain manor is the head of a barony or a single knight’s fee held by a separate title;¹⁵⁹ but they will not justify us in co-ordinating tenure by barony with the other tenures, such as knight’s service and serjeanty.

The baronage.Of course, however, “barony” cannot be treated as a mere matter of land tenure. The barons, together with the earls, have become an estate of the realm, and to make a man a member of this estate it is not sufficient that he should be a military tenant in chief of the crown. A line has been drawn which cuts the body of such tenants into two classes. The question by what means and in accordance with what principle that line was drawn has been much debated. We shall probably be near the truth if, in accordance with [p.260] recent writers, we regard the distinction as one that is gradually introduced by practice and has no precise theory behind it.¹⁶⁰ The heterogeneous mass of military tenants in chief could not hold together as an estate of the realm. The greater men dealt directly with the king, paid their dues directly to the exchequer, brought their retainers to the host under their own banners, were summoned to do suit in the king’s court by writs directed to them by name; the smaller men dealt with the sheriff, paid their dues to him, fought under his banner, were summoned through him and by general writs. Then two rules emphasized the distinction:—the knight’s fee paid a fixed relief of 100 shillings, the baron made the best bargain he could for his barony; the practice of summoning the greater people by name, the smaller by general writs was consecrated by the charter of 1215. The greater people are maiores barones, or simply barones, the lesser are for a while barones secundae dignitatis, and then lose the title altogether; the estates of the greater people are baronies, those of the smaller are not; but the line between great and small has been drawn in a rough empirical way and is not the outcome of any precise principle. The summons to court, the political status of the baron, we have not here to consider, while, as regards the land law, it is to all appearance the relief, and the relief only, that distinguishes the barony from an aggregate of knights’ fees, or makes it necessary for us to speak of tenure by barony.

Escheated honours.When, however, a certain territory had been recognized as a barony or an honour, this name stuck to it through all its fortunes. Honours and baronies were very apt to fall into the hands of the king by way of forfeiture or escheat owing to the tenant’s treason. [p.261] When this happened they still kept their names the honour of Wallingford might have escheated to the king, but it was still the honour of Wallingford and did not lose its identity in the general mass of royal rights. Nor was this a mere matter of words. In the first place, the escheated honour would probably come out of the king’s hands; the general expectation was that the king would not long keep it to himself, but would restore it to the heir of its old tenant, or use it for the endowment of some new family, or make it an appanage for a cadet of the royal house.¹⁶¹ But the continued existence of the honour had a more definite, and a legal meaning. Normally, as we shall see hereafter, the military tenant in chief of the king was subject to certain exceptional burdens from which the tenants of mesne lords were free. A tenant holds of the lord of the honour of Boulogne: that honour escheats to the king; the tenant will now hold immediately of the king; but is he to be subject to the peculiar burdens which are generally incident to tenancy in chief? No, that would be unfair, it would be changing the terms of his tenure. This was recognized by the practice of the exchequer under Henry II.,¹⁶² and the rule was confirmed by the Great Charter.¹⁶³ Thus it becomes necessary to distinguish between those tenants in chief who are conceived as having always held immediately of the king, and those who hold of the king merely because a mesne lordship has escheated: in other words, between those who hold of the king as of his crown (ut de corona) and those who hold of him as of an escheated honour (ut de escaeta, ut de honore, ut de baronia).¹⁶⁴ On the other hand, the relief for a barony having been fixed, two baronies do not become one merely because they are held by one person; the honour of Clare, the honour of Gloucester, the honour of St. Hilary and a moiety of Earl Giffard’s honour meet in the hands of Earl Gilbert; he has to pay for his three and a half honours a relief of £350.¹⁶⁵ [p.262] An honour or barony is thus regarded as a mass of lands which from of old have been held by a single title.¹⁶⁶

§ 4. Serjeanty

Difficulty of defining serjeanty.The idea of a serjeanty as conceived in the thirteenth century is not easily defined. Here as elsewhere we find several different classes of men grouped together under one heading so that the bond that connects them is slight; also we find it difficult to mark off serjeanty from knight’s service on the one hand and socage on the other. The tests suggested by Littleton are inapplicable to the documents of this age.¹⁶⁷ We cannot say that the duty of serjeanty must be performed by the tenant in his proper person, we cannot say that “petty serjeanty” has necessarily any connexion with war, or that one cannot hold by serjeanty of a mesne lord, or that petty serjeanty is “but socage in effect.”¹⁶⁸ Even the remark that “ serjeantia in Latin is the same as servitium ”¹⁶⁹ is not strictly true.

Serjeanty and service.Here indeed lies the difficulty:—while every tenure implies a service (servitium), it is not every tenure that is a serjeanty (seriantia, serianteria): every tenant owes service, but not every tenant is a servant or serjeant (serviens), still less of course is every tenant a servus. A single Latin stock has thrown out various branches; the whole of medieval society seems held together by the twigs of those branches. Here we have to deal with one special group of derivative words, not forgetting that it is connected with other groups.¹⁷⁰

Types of serjeanty owed by the king’s tenants in chief.We may begin by casting our eye over the various “serjeanties” known in the thirteenth century. First we see those forms of service which are the typical “grand serjeanties” of later days, “as to carry the banner of the king or his lance, or to lead his army, or to be his marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of the chamberlains of the receipt of his exchequer.”¹⁷¹ Some of [p.263] the highest offices of the realm have become hereditary; the great officers are conceived to hold their lands by the service or serjeanty of filling those offices. It is so with the offices of the king’s steward or seneschal, marshal, constable, chamberlain; and, though the real work of governing the realm has fallen to another set of ministers whose offices are not hereditary, to the king’s justiciar, chancellor and treasurer, still the marshal and constable have serious duties to perform.¹⁷² Many of the less exalted offices of the king’s household have become hereditary serjeanties; there are many men holding by serjeanties to be done in the kitchen, the larder and the pantry.¹⁷³ Even some of the offices which have to do with national business, with the finance of the realm, have become hereditary; there are already hereditary chamberlains of the exchequer who do their service by deputy.¹⁷⁴ We observe that all these offices, if we regard only their titles, have something menial about them, in the old and proper sense of the word “menial”; their duties are servitia mansionalia, they are connected with the king’s household. It may be long since the predecessors in title of these men really cooked the king’s dinner or groomed the king’s horses: but they glory in titles which imply, or have implied, that their duties are of this menial kind; nor is it always easy to say when or whether the duty has become honorary. When the Conqueror gives half a hide of land in Gloucestershire to his cook,¹⁷⁵ it were bold to say that this tenant did not really roast and boil; and what shall we say of the cook of the Count of Boulogne?¹⁷⁶ Then scattered about England we find many men who are said to hold by serjeanty and are bound by their tenure to do other services, which are not so distinctly menial, that is to say, are not so closely connected with the king’s household. They are bound to carry the king’s letters, to act as the king’s summoners when the barons of the neighbourhood are to be summoned, to aid in conveying the king’s treasure from place to place, or the [p.264] like. Again, and this is very common, theirs is some serjeanty of the forest, they are chief foresters, or under foresters. The king’s sport has given rise to numerous serjeanties; men are bound by tenure to keep hounds and hawks for him, to find arrows for him when he goes a-shooting; and we cannot say that these are honorary or particularly honourable services: to find a truss of straw for the king’s outer chamber when he stays at Cambridge, this also is a serjeanty.¹⁷⁷ The carpenter, the mason, or the gardener who holds land in the neighbourhood of some royal castle in return for his work holds a serjeanty.¹⁷⁸ But, again, many serjeanties are connected with warfare. The commonest of all is that of finding a servant or serjeant (servientem) to do duty as a soldier in the king’s army. Sometimes he is to be a foot-soldier, sometimes a horse-soldier (servientem peditem, servientem equitem); often the nature of the arms that he is to bear is prescribed; often he is bound to serve for forty days and no more, sometimes only for a shorter period; often to serve only against the Welsh, sometimes to serve only within his own county. It would be a mistake to think that tenure supplied the king only with knights or fully armed horsemen; it supplied [p.265] him also with a force, though probably a small force, of light horse-men and infantry, of bowmen and cross-bowmen. It supplied him also with captains and standard-bearers for the national militia; men were bound by their tenure to lead the infantry of particular hundreds.¹⁷⁹ It supplied him also with the means of military transport, with a baggage train; few serjeanties seem commoner than that of sending a “serjeant” with horse, sack and buckle for the carriage of armour and the like.¹⁸⁰ It supplied him, to some small degree, with munitions of war; if one was bound by tenure to find lances, arrows or knives, this was reckoned a serjeanty.

Serjeanty of mesne lords.A man may well hold by serjeanty of a mesne lord. Bracton speaks clearly on this point. The tenant of a mesne lord may be enfeoffed by serjeanty, and the serjeanty may be one which concerns the lord, or one which concerns the king. Thus, for example, he may be enfeoffed as a “rodknight” bound to ride with his lord, or he may be bound to hold the lord’s pleas, that is, to act as president in the lord’s court, or to carry the lord’s letters, or to feed his hounds, or to find bows and arrows, or to carry them: we cannot enumerate the various possible serjeanties of this class. But there are, says Bracton, other serjeanties which concern the king and the defence of the realm, even though the tenant holds of a mesne lord; as if he be enfeoffed by the serjeanty of finding so many horse- or foot-soldiers with armour of such or such a kind, or of finding a man with horse, sack and buckle for service in the army.¹⁸¹

Types of serjeanty owed to mesne lords.All this is fully borne out by numerous examples. The grand serjeanties [p.266] of the king’s household were represented in the economy of lower lords. Thus John of Fletton held land at Fletton in Huntingdonshire by the service of being steward in the abbot’s hall at Peterborough;¹⁸² at Cottesford in Oxfordshire John White is bound by tenure to hold the lord’s court twice a year;¹⁸³ in the same county a tenant of the Earl of Lincoln must place the last dish before the earl, and shall have a rod from the earl like other free serjeants.¹⁸⁴ The Abbot of Gloucester has tenants who spread his table, who hold towels and pour water on his hands.¹⁸⁵ In the twelfth century the stewardship of the Abbey of St. Edmunds was hereditary in the family of Hastings, but was executed by deputy.¹⁸⁶ On the whole, however, the prelates and barons seem to have followed the policy of their royal master and seldom permitted substantial power to lapse into the hands of hereditary officers; the high steward of a monastery, like the high steward of the realm, was a man for pageants rather than for business.¹⁸⁷ Still such serjeanties existed. The service of carrying the lord’s letters was not uncommon and may have been very useful;¹⁸⁸ the service of looking after the lord’s wood was reckoned a serjeanty.¹⁸⁹ In various parts of England we find a considerable class of tenants bound to go a-riding with their lords or on their lord’s errands, and doubtless, as Bracton suggests, we have here the radchenistres and radmanni of Domesday Book;¹⁹⁰ on some estates they are known as “esquires,” and their tenure is a “serjeanty of esquiry.”¹⁹¹

Military serjeanties held of mesne lords.But again, there may, as Bracton says, be warlike service to be done. A tenant, for example, of the Abbot of Ramsey is bound to find horse, sumpter saddle, sack and fastening pin to carry the [p.267] harness of the knights bound for the Welsh war;¹⁹² the prior of St. Botolph at Colchester is bound to the same service by mesne tenure.¹⁹³ Again, the tenant may go to the war in his lord’s train to fight, not as a miles but as a serviens; Reginald de Bracy is bound by the service of serjeanty to follow William de Barentin as a serviens at William’s cost.¹⁹⁴

Essence of serjeanty.Now it may be impossible to bring all these very miscellaneous tenures under one definition which shall include them, but exclude knight’s service and socage. However, the central notion seems what we may call “servantship”; we cannot say “service,” for that word is used to cover every possible return which one man can make to another for the right of enjoying land. Obviously in many cases the tenant by serjeanty not only owes “service” in this large sense, but is a servant (serviens); he is steward, marshal, constable, chamberlain, usher, cook, forester, falconer, dog keeper, messenger, esquire; he is more or less of a menial servant bound to obey orders within the scope of his employment. Modern efforts to define a “servant” may illustrate old difficulties as to the limits of “serjeanty”; it may be hard to draw the line between the duty of habitually looking after the king’s bed-chamber and that of providing him with litter when he comes to a particular manor. But the notion of servantship, free servantship, as opposed to any form of serfdom, seems to be the notion which brings the various serjeanties under one class name, and it points to one of the various sources of what in the largest sense of the term we call the feudal system. One of the tributaries which swells the feudal stream is that of menial service; it meets and mingles with other streams, and in England the intermixture is soon very perfect; still we can see that serjeanty has come from one quarter, knight’s service from another, socage from yet a third, and we may understand how, but for the unifying, generalizing action of our king’s court, a special law of serjeanty might have grown up, distinct from the ordinary law of land tenure.¹⁹⁵

[p.268] As regards the military serjeanties we must remember that in the language of military affairs serviens had acquired a distinct meaning.The serjeants in the army. An army is largely made up of milites and servientes, of fully armed horsemen, and of men who, whether they serve on foot or on horse, have not the full knightly panoply.¹⁹⁶ Now when a tenant by serjeanty is bound to go to the war as a serviens with horse, purpoint, iron cap and lance, the difference between his tenure and knight’s service seems to resolve itself into a mere difference between one kind of armour and another, or one position in the army and another; and it is possible that a certain ambiguity in the word serviens, which will stand for servant, and will stand for light armed soldier, may have attracted within the sphere of serjeanty certain tenures which had about them no strong trace of what we have called “servantship.” Still originally the servientes of the army were so called because they were attendants on the milites, whose shields they carried, and whose esquires they were—for the esquire (scutifer, armiger) of those times was one who carried the shield or arms of his lord. Thus by one way or another we come back to the idea of “servantship” as the core of serjeanty.¹⁹⁷

Serjeanty in Domesday Book.Looking back towards the Norman Conquest we run no risk in seeing the predecessors of these tenants by serjeanty in the servientes of Domesday Book. Near the end of the survey of a county we sometimes meet with a special section devoted to Servientes Regis. Thus in [p.269] Wiltshire after the Terra Tainorum Regis comes the Terra Servientium Regis;¹⁹⁸ it is so in Dorsetshire;¹⁹⁹ in Devonshire and Leicestershire the Servientes Regis have a special section;²⁰⁰ in Oxfordshire we find Terra Ministrorum Regis,²⁰¹ and when elsewhere we meet with Famuli Regis²⁰² we may suppose that this is but another name for the Servientes and Ministri. We can tell something of their offices. Among the Wiltshire Servientes are three chamberlains (camerarii), a hoarder (granetarius) and a cross-bowman (arbalistarius); elsewhere are an archer, an usher, a goldsmith, a baker, a bedchamber man; near the end of the survey of Hampshire we find a treasurer, two chamberlains, a hunter, a marshal, a physician and a barber holding in chief of the king.²⁰³ In some cases it is possible to trace the estates of these persons until we find them definitely held by serjeanty. Again, there can be little risk in finding the ancestors in law of Bracton’s rodknightes²⁰⁴ and the Abbot of Ramsey’s ridemanni in the radchenistres and radmanni of Domesday Book. It is true that in the western counties these radchenistres are occasionally found in large groups; there may be even twenty of them on a manor;²⁰⁵ but in what was for Bracton the leading case on serjeanty the abbess of Barking asserted that she had full thirty tenants on one manor bound to ride about with her wherever she would.²⁰⁶ However, the makers of Domesday Book were not concerned to specify the terms on which the tenants, especially the tenants of mesne lords, held their lands; of serjeanties we read little just as we read little of knightly service. So soon, however, as any attempt is made to classify tenures, the serjeanties appear in a class by themselves. Glanvill, after defining the relief payable for knights’ fees and for socage tenements, adds that as to baronies nothing has been definitely settled, the amount of the relief being at the will and mercy of the king; the same, he says, is true of serjeanties.²⁰⁷ In 1198 [p.270] the distinction was enforced by the great fiscal measure of that year; from the general land tax the serianteriae were excepted, but they were to be valued and the servientes who held them were to be summoned to meet the king at Westminster to hear and do his bidding.²⁰⁸

Serjeanty and other tenures.Other distinctions appear in course of time. Even in Bracton’s day the amount of the relief for a serjeanty was not yet fixed; it was to be “reasonable” but no more than this could be said.²⁰⁹ In later days we find it fixed at one year’s value of the land; but how or when this definition was arrived at we do not know.²¹⁰ That the serjeant’s relief remains uncertain long after the reliefs of barons, knights and socagers are fixed is another fact which points to the peculiar nature of the relationship which had been involved in the tenure. It was not the mere relation between lord and tenant, or between lord and man, but was also the relation between master and servant, and, though a feoffment had been made to the tenant and his heirs, the law was slow to dictate the terms upon which the lord must receive the heir into his service. Again, we find that a tenement held by serjeanty is treated as inalienable and impartible. As regards alienation we shall be better able to speak hereafter, but will premise this much, that the king is rigorously enforcing the rule that his serjeants cannot without his leave alienate their land, even by way of subinfeudation, at a time when he is not, or is not systematically, enforcing the same rule against his other tenants. We have some proof that so late as John’s reign it was thought that a serjeanty could not be partitioned among co-heiresses; the eldest daughter would take the whole:²¹¹—this also is an intelligible rule if we have regard to the “serviential” character of the tenure; a serjeanty must not be “lacerated.”²¹² As to the wardship and marriage of tenants by serjeanty there was much dispute, and in course of time a line was drawn between what were called “grand” and what were called “petty” serjeanties. To this matter we must return; but [p.271] by means of the rules to which allusion has here been made, tenure by serjeanty was kept apart from tenure by knight’s service on the one hand and tenure by socage on the other, and even in the middle of the thirteenth century it still had an importance which is but faintly represented by the well-known sections of Littleton’s book.

§ 5. Socage

Socage.Any tenure that on the one hand is free and on the other hand is not spiritual, nor military nor “serviential,” is called tenure in free socage:—to this result lawyers are gradually coming. Obviously therefore this term socage will cover a large field; it will include various relationships between men, which, if we regard their social or economic or even their purely legal aspects, seem very different from each other. We may look at a few typical cases.

Types of socage.(a) The service which the tenant owes to his lord may be merely nominal: he has no rent to pay or has to give but a rose every year just by way of showing that the tenure exists. Such a case may be the effect of one of various causes. It may originate in what we should call a family settlement: a landowner sometimes provides for a daughter or a younger son by a gift of land to be held by a nominal service. Or again, the gift may be a reward to some dependant for past services, or a retaining fee for services to be rendered hereafter, which services however are not defined and are not legally exigible. Or again, there may well have been what in truth was a sale of the land: in return for a gross sum a landowner has created a nominal tenure. To have put the purchaser in the vendor’s place might have been difficult, perhaps impossible; so the purchaser is made tenant to the vendor at an insignificant rent.

(b) Such cases gradually shade off into others in which a substantial rent has been reserved. We pass through the very numerous instances in which the lord is to receive yearly some small article of luxury, a sparrowhawk, a pair of gloves, a pair of gilt spurs, a pound of pepper or of incense or of wax, to other cases in which [p.272] the rent, if we cannot call it a “rack rent,” is “the best rent that can reasonably be gotten.” We thus enter the sphere of commerce, of rents fixed by supply and demand.

Such tenures as these may be found in every zone of the territorial system. The tenant may be holding of the king in chief; the king has, as we should say, granted perpetual leases at substantial rents of some of his manors, the lessees being sometimes lay barons, sometimes religious houses.²¹³ Again, from the Conquest onward, to say nothing of an earlier time, very great men have not thought it beneath them to hold church lands at easy rents.²¹⁴ It is an accusation common in monastic annals that the abbots of the Norman time dissipated the lands of their houses by improvident grants to their foreign kinsmen or by taking fines instead of reserving adequate rents. In such cases these tenants in socage may have other tenants in socage below them, who will pay them heavier rents. Ultimately we come to the actual occupant of the soil, whose rent will in many cases represent the best offer that his landlord could obtain for the land. Occasionally he may be paying more for the land than can be got from the villeins of the same village.

(c) Sometimes we find in charters of feoffment that the feoffee, besides paying rent, is to do or get done a certain amount of agricultural labour on his lord’s land, so much ploughing, so much reaping. The feoffee may be a man of mark, an abbot, a baron, who will have many tenants under him and will never put his hand to the plough.²¹⁵ These cases are of importance because they seem to be the channel by which the term socage gradually spreads itself.

(d) Finally, within a manor there often are tenants bound to pay divers dues in money and in kind and bound to do or get done a fixed quantity of agricultural service for their lords. Their tenure is often regarded as very old; often they have no charters which [p.273] express its terms.²¹⁶ Hereafter we shall see that it is not always easy to mark the exact line which separates them from the tenants in villeinage among whom they live and along with whom they labour for the lord’s profit. Some of them are known as free sokemen (sokemanni, sochemanni); but this name is not very common except on “the ancient demesne” of the crown. Of their position we must speak hereafter, for it can only be discussed in connexion with the unfree tenures.

Gradual extension of the term socage.Now to all appearance the term socage, a term not found in Normandy, has been extending itself upwards; a name appropriate to a class of cultivating peasants has begun to include the baron or prelate who holds land at a rent but is not burdened with military service. Of such a man it would seem natural to say that he holds at a rent (tenet ad censum), and for a century and more after the Norman Conquest it is rare to call his tenure socage. He is sometimes said to have feodum censuale;Fee farm. far more commonly he is said to hold “in fee farm.” This term has difficulties of its own, for it appears in many different guises; a feoffee is to hold in feofirma, in feufirmam, in fedfirmam,²¹⁷ in feudo firmam, in feudo firma, ²¹⁸ ad firmam feodalem,²¹⁹ but most commonly, in feodi firma. The Old English language had both of the words of which this term is compounded, both feoh (property) and feorm (rent);²²⁰ but so had the language of France, and in Norman documents the term may be found in various shapes, firmam fedium, feudifirmam.²²¹ But, whatever may be the precise history of the phrase, to hold in fee farm means to hold heritably, perpetually, [p.274] at a rent; the fee, the inheritance, is let to farm. This term long struggles to maintain its place by the side of socage; the victory of the latter is not perfect even in Bracton’s day; the complete merger of fee farm in socage is perhaps due to a statute of Edward I., though the way towards this end had long been prepared.²²²

Meaning of “socage.”As to the word socage, a discussion of it would open a series of difficult problems about the administration of justice in the days before the Conquest. These have been discussed elsewhere.²²³ We must here notice two points. Bracton believed—erroneously no doubt, but erroneous etymology is a force in the history of the law—that socage had to do with soc, the French word for a plough-share;²²⁴ tenants in socage therefore are essentially agriculturists, and the duty of ploughing the lord’s demesne is the central feature of socage. In the second place, if we turn to the true derivation, we come to much the same result; socage is at starting the tenure of those sokemen of whom we read in Domesday Book; socage is an abstract term which describes their condition. Gradually it has been extended and therefore attenuated until it is capable of expressing none but negative characteristics:—socage is a tenure which is not spiritual, not military, not serviential. No similar extension has been given to the word sokeman; in the thirteenth century many persons hold in socage who would be insulted were they called sokemen; for the sokemen are a humble, though it may be a well-to-do class.²²⁵

Socage in contrast to military tenure.That they have been a numerous class we may gather as from other evidence so from this, that socage becomes the one great standing contrast to military tenure, and, as the oppressive incidents of [p.275] military tenure are developed, every man who would free his holding from the burdens of wardship and marriage is anxious to prove that he holds in socage. To gain this end he is full willing to sink somewhat of dignity; he will gladly hold by the peasant’s tenure when the most distinctive marks of that tenure are immunities— no scutage, no wardship, no marriage.²²⁶

Socage as the residuary tenure.Thus free socage, when that term has attained its full compass, appears as the great residuary tenure, if we may so speak; it is nonmilitary, non-serviential, non-elemosinary. If, however, we go back to the first half of the twelfth century, we begin to doubt whether we can strictly insist on the most characteristic of these negative attributes. The army is but gradually taking its new shape; the sokemen of the Abbot of Peterborough serve along with the knights.²²⁷ In Edward I.’s day the tradition among the Oxfordshire jurors was that the ancestors of many of the Bishop of Lincoln’s socage tenants were free sokemen or “quasi sokemen” who served the king in the war for forty days at their own cost with purpoints, lances and iron caps.²²⁸ It is not in the past that we must look for clear definitions.

Burgage.Tenure in burgage, if we examine but one specimen of it, may seem to differ in no essential from free socage.²²⁹ The service due from the tenant to his lord is very generally a mere money rent, though there may be a little ploughing or the like to be done. But if we thus isolate a single tenant from his fellows, the spirit of burgage escapes us. The tenant is, at least normally, a burgess, a member of a privileged community, which already aspires to become a municipal corporation. This is not the place in which to discuss the history of the boroughs, still we ought just to notice that tenure has been an important element in it. From a remote time there have been in the greater and older boroughs men who paid rents for their houses but did no other service. Their tenure becomes distinctive of the boroughs, and when in later days a manor is to become a borough, the abolition of labour services and the introduction of burgage tenure is one main feature of the process.²³⁰

[p.276]Burgage and borough customs. Regarded merely as a tenure, the chief characteristic of burgage is its subjection to local custom. Other free tenures, socage for example, may be affected by local custom, but what is exceptional in their case is normal in the case of burgage. The lord has made over to the men of the borough his court and the profits of his court; very frequently a royal charter has conceded that actions for burgage tenements shall not be tried except in the court of the borough; thus local custom has room within which it can grow and is not liable to be set aside in favour of common law. It is chiefly within the domain of private law, it is about such matters as inheritance and dower, that the borough customs have their say. The point that most concerns us here is their tendency to treat the burgage tenement as an article of commerce; it is likened to a chattel; not only can it be disposed of by will, but “it can be sold like a chattel.”

One man may hold by many tenures.A man might hold of many different lords by many different tenures. This no one would deny; but some of the classical expositions of “the feudal system” and “the manorial system” are apt to make the texture of medieval society look simpler than really it was, and we think it part of our duty to insist that the facts which the lawyers of the thirteenth century had to bring within their theories were complicated. Therefore let us fix our eyes on one man. Sir Robert de Aguilon, and see what he held on the day of his death in 1286. He held lands at Greatham in Hampshire of the king at a rent of 18 s.; he held lands at Hoo in Kent of the Abbot of Reading at a money rent; he held lands at Crofton in Buckinghamshire of William de [p.277] Say by some service that the jurors did not know; he held a manor in Norfolk of the Bishop of Norwich by the service of a sixth part of a knight’s fee and by castle-guard; he held a manor in Sussex of the Earl of Warenne by the service of one knight; he held a manor in Hertfordshire of the king in chief by the serjeanty of finding a foot-soldier for forty days; he held tenements in London of the king in chief by socage and could bequeath them as chattels.²³¹ So we must not think that each man fills but one place in the legal structure of feudalism. In a remote past this may have been so; but it is not so in the age that defines the various tenures. Often enough the man who holds of the king in chief will hold also of other lords; he will hold by knight’s service, by serjeanty, in fee farm, in socage and in burgage.

§ 6. Homage and Fealty

Homage and fealty.Very generally the mere bond of tenure is complicated with another bond, that of homage and fealty; the tenant either has done homage and sworn fealty, or is both entitled and compellable to perform these ceremonies. The right and the duty go together; in one particular case it may be the lord, in another it may be the tenant, who will desire that these solemnities should be observed, for each of them may thereby gain something.

Legal and extra-legal effects of homage.When we read what the law-books say of these matters, we feel that they are dealing with institutions, the real importance of which lies but partly within the field of law. The law of homage as administered, or even as tolerated, by the king’s court of the thirteenth century is but a pale reflection of moral sentiments which still are strong but have been stronger. Glanvill and Bracton seem to lower their voices to a religious whisper when they speak of homage; it is in this context that Glanvill introduces a word very rare in English legal documents, the antique word vassallus.²³² The ceremony of homage is as solemn as ceremony can be. But when we ask for the effects of homage, we get on the one hand some rules of private [p.278] law about warranty and so forth, rules which may seem to us of no great importance, and on the other hand some vague though impressive hints that these legal rules express but a small part of what is, or has been, the truth.

The ceremony of homage.The ceremony of homage (in some of the older books hominium, hominatio,²³³ but usually homagium) is much the same all Europe over.²³⁴ According to Bracton, the tenant puts his hands between the hands of the lord—this symbolical subjection seems from the first to have been the very essence of the transaction²³⁵ —and says: “I become your man of the tenement that I hold of you, and faith to you will bear of life and member and earthly worship [or, as some say, of body and chattels and earthly worship], and faith to you shall bear against all folk [some add, who can live and die], saving the faith that I owe to our lord the king.”²³⁶ Britton adds that the lord shall then kiss his tenant;²³⁷ Littleton adds that the lord sits, while the tenant kneels on both knees, ungirt and with his head uncovered; and these we may accept as ancient traits.²³⁸ Everything seems done to tell us that the man has come helpless to the lord and has been received into the lord’s protection.

The oath of fealty.Homage is “done,” fealty is “sworn,” and it is worthy of observation that the oath is conceived as less solemn than the symbolic act and can be exacted in many cases in which homage is not exigible. The tenant now stands up with his hand on the gospels and says: “Hear this my lord: I will bear faith to you of life and member, goods, chattels and earthly worship, so help me God and these holy gospels of God”; some add an express promise to do the service due for the tenement.²³⁹ Bracton does not here mention any saving clause for the faith due to the king; but doubtless this was added.²⁴⁰ The oath of fealty thus omits the words “I become your man,” a significant omission. Fealty, of course, is the Latin fidelitas; but it is interesting to notice that on manorial rolls written by clerks who [p.279] were no great Latinists, the word becomes feodelitas or feoditas, so close is the connexion between faith and fee.

Liegeance.The forms that have here been given are those of liege homage and of fealty sworn to a liege lord. The word liege seems to mean simple, unconditional, though very likely at a quite early time a false derivation from the Latin ligare (to bind) began to obscure this.²⁴¹ The man who has but one lord does unconditioned homage. If now he acquires a fee from another lord, his homage must be conditioned, he must save the faith that he owes to his first lord.²⁴² If tenements held of several lords descend to one heir, his liege homage seems due either to the lord from whom he claims his principal dwelling-place— cuius residens et ligius est²⁴³—or to that lord who made the oldest of those feoffments under which he claims.²⁴⁴ The person to whom liege homage is done is by no means necessarily the king; but the king has been insisting with ever greater success that there is a direct bond between him and every one of his subjects; the growth of national feeling has favoured this claim.²⁴⁵ Not only has he insisted that in every expression of homage or fealty to another there shall be a saving for the faith that is due to him,²⁴⁶ but [p.280] he has insisted that every male of the age of twelve years shall take an oath of fealty to him and his heirs, an oath “to bear faith and loyalty of life and limb, of body and chattels and of earthly honour,” an oath which of course makes no reference to any tenement, an oath which promises a fealty so unconditioned that it becomes known as the oath of ligeance or allegiance (ligeantia).²⁴⁷ William the Conqueror, it would seem, had exacted, not only an oath of fealty, but an act of homage from all the considerable tenants of his kingdom, no matter whose men they were, for so we may fairly construe the words of the chronicler, “they bowed themselves and were this man’s men”;²⁴⁸ later kings as well as earlier had exacted the oath of fealty from their subjects in general. But this is a strong testimony to the force of vassalism. It suggests that an oath is necessary in order to constitute the relation between ruler and subject; it suggests that the mere omission of a saving clause might make it a man’s duty to follow his lord even against the king; it makes the relation between king and subject look like a mere copy of the relation between lord and vassal. This we can see even if we look back to the first days of incipient feudalism: “All shall swear in the name of the Lord fealty to King Edmund as a man ought to be faithful to his lord”;²⁴⁹ the obligation of man to lord is better known, more strongly felt, than the obligation of subject to king. At the accession of Edward I. the danger seems past, at least for a while; the feudal force seems to have well-nigh spent itself; but obviously homage and fealty, liege homage and liege fealty, have meant a great deal.

Vassalism in the Leges Henrici.In the Leges Henrici we may find the high-water-mark of English vassalism. Every man owes faith to his lord of life and limb and earthly worship, and must observe his lord’s command in all that is honourable and proper, saving the faith due to God and the ruler of the land; but theft, treason, murder, or anything that is against God and the catholic faith, such things are to be commanded to [p.281] none, and done by none. Saving these, however, faith must be kept to lords, more especially to a liege lord, and without his consent one may have no other lord.²⁵⁰ If the lord takes away his man’s land or deserts him in mortal peril, he forfeits his lordship; but the man must be long suffering, he must bear with his lord’s maltreatment of him for thirty days in war, for year and day in peace.²⁵¹ Every one may aid his lord when attacked and obey him in all things lawful; and so too the lord is bound to help his man with aid and counsel in all things, and may be his warrant—at least in certain cases—if he attacks or molests another.²⁵² To kill one’s lord is compared to blasphemy against the Holy Ghost; it is a crime to be punished by a death cruel enough to seem a fit beginning for the torments of hell.²⁵³ If, on the other hand, the lord slays his man who has done no wrong, the offence can be paid for with money.²⁵⁴

Bracton on homage.Bracton defines homage thus:—Homage is a bond of law (vinculum iuris) by which one is holden and bound to warrant, defend and acquit the tenant in his seisin against all men, in return for a certain service (per certum servitium) named and expressed in the gift, and vice versa whereby the tenant is “really” bound (re obligatur) to keep faith to his lord and do the due service; and such is the connexion by homage between lord and tenant that the lord owes as much to the tenant as the tenant to the lord, save only reverence.²⁵⁵ Such a definition tends to bring the whole matter within the legitimate province of the law of contract: there is a bargain about a tenement; the lessee is to do certain services, the lessor is to warrant the title. Warranty is still an important matter, and the doing and receipt of homage still have important results in the law about warranty; but even here the courts are beginning to neglect homage and to lay stress merely on the relation which exists, whether homage has [p.282] or has not been done, between a feoffor and his feoffee. And, as Bracton here hints, the feoffee’s obligation to perform the services is beginning to be conceived rather as the outcome of a “real” contract than as an outcome of the act of homage. To this point we may return hereafter, since it lies within the domain of private law. What had been the public, the political or anti-political, force of homage may best be seen by comparing passages in the text-books which deal with the problems which may arise when a man holds different tenements of different lords and those lords quarrel.

Homage and private war.Such problems were possible even at the beginning of the twelfth century, for a man might hold land of divers lords.²⁵⁶ Glanvill, though he distinctly says that the tenant may have to fight against his lord at the king’s command, says also that if a man has done divers homages for his divers fees to divers lords who “infest” each other, and if his chief lord orders him to go in his proper person against another of his lords, he must obey the command, “saving the service to that other lord from the fee that is held of him.”²⁵⁷ This can hardly be read otherwise than as a statement that private warfare may conceivably be lawful. Bracton dealing with a like case uses more ambiguous words:—If enmities arise between his different lords, the tenant must in his proper person stand with him (stabit cum eo) to whom he has done ligeance, while he must stand with his other lords by attorney.²⁵⁸ There is a great difference between Bracton’s stare cum and Glanvill’s ire contra. Bracton’s words may be satisfied by supposing a tenant bound to do suit to the courts of two lords who have quarrelled; he must go in person to the one court, by attorney to the other. In Britton’s book, however, or at least in some manuscripts thereof, it is written that the tenant may have to serve one lord “against the other”;²⁵⁹ and we are hardly entitled to say that this doctrine, even as a legal doctrine, was of no force. [p.283] It is probable that even the king’s courts would have held that the man was justified, or at least excused, in defending his lord and his lord’s property against hostile attacks, and such defence might easily become defensive warfare. The great case which proves that Edward I. had the will and the power to put down private war with a heavy hand, even when it was levied between the most powerful men of his realm, the case in which he sent an Earl of Gloucester and an Earl of Hereford to prison, proves also that in the eyes of contemporaries the full enormity of their offence was found in their having gone on with the war contrary to a royal prohibition, and that the morality of the time would hardly suffer any severe punishment to be inflicted upon those of their men who had followed their banners in ignorance of the king’s command. Such persons, if guilty of homicide, robbery, arson or the like, might doubtless be dealt with as common criminals; but for the mere fact that they had gone out with banner displayed, it would be hard to bring to bear upon them that prerogative procedure which was set in motion in order to crush the disobedient earls. At any rate, private war was an offence which might be enormously exaggerated by breach of a royal prohibition.²⁶⁰

Sanctity of homage.The same feeling may be seen in another quarter. That a lord should make an attack on his man or a man on his lord, even under the forms of law, is scarcely to be tolerated. If the man will bring an appeal, a criminal charge, against his lord, he must first “waive the tenement.”²⁶¹ When a king is going to declare war upon his barons [p.284] he first defies them, for there should be no attack while there is affiance. Henry III. in 1233 defied the Marshal, who then was no longer his man, but “outside his homage;”²⁶² before the battle of Lewes he defied the earls of Leicester and Gloucester, who thereupon renounced homage and fealty.²⁶³ We can hardly say that all this lies outside the sphere of law, for rebellions and wars are conducted on quasi-legal principles: that is a characteristic of the time. Bracton fully admits that a man who holds land both in England and in France may be bound to aid both kings when they make war on each other; his liege lord he must serve in person, but none the less he must discharge the service due to his other lord.²⁶⁴

Homage and felony.But the most curious limitation to the force of vassalism will be found in the fact that a man can hardly “go against” any one at his lord’s command without being guilty of the distinctively feudal crime, without being guilty of “felony.” Common law, royal and national law, has, as it were, occupied the very citadel of feudalism. Whatever may be the etymology of felony (and of this we shall speak hereafter), there can be no doubt that the word came to us from France, and that in France and elsewhere it covered only the specifically feudal crimes, those crimes which were breaches of the feudal nexus and which would work a forfeiture or escheat of the fief, or as the case might be, of the lordship; for the lord might be guilty of felony against his man just as the man might be guilty of felony against his lord. A mere common crime, however wicked and base, mere wilful homicide, or theft, is not a felony; there must be some breach of that faith and trust which ought to exist between lord and man. Now it would seem that for a while the word was used here as well as elsewhere in this restricted sense; in the Leges Henrici felonia is one among many crimes.²⁶⁵ A little later it seems to cover every crime of any considerable gravity, and seems to have no reference whatever to the feudal bond, save in one respect, namely, that the felon’s land escheats to his lord; nay, a charge of felonia has become an indispensable part of every charge of every [p.285] crime that is to be punished by death or mutilation.²⁶⁶ The details of this process are obscure. Possibly the lords saw no harm in a change which brought them abundant escheats; but an attack had been made upon vassalism at its very centre. To be true to your lord when there was any real strain on the feudal bond, to go out with him when he “went against” some one else, would end, like enough, in your finding that you had committed a felony. This of course is no superficial change in the use of words; it bears witness to a deep change in thought and feeling. All the hatred and contempt which are behind the word felon are enlisted against the criminal, murderer, robber, thief, without reference to any breach of the bond of homage and fealty.

Feudal felony.We can find traces of an older way of thinking. So late as 1225 William Blunt brought an action against Roger Gernon demanding homage, relief and scutage; Roger denied holding of the demandant and asserted that he held of William Briwere; the demandant replied “with words of felony”—wickedly and in felony had Roger denied his service and done homage to another.²⁶⁷ Such a use of the term felonia may have been belated, still felony in its more modern sense is not the only cause for an escheat. Glanvill speaks briefly:— the tenant will break the bond of homage if he does anything that may turn to the disherison of his lord or the disgrace of his lord’s person.²⁶⁸ Bracton’s phrase is “anything that may turn to the disherison of the lord or any other atrocious injury.” We cannot prove from decided cases that any delict falling short of a “felony” in the modern sense of that term, and unconnected with the tenure of the land, would have been regarded by the king’s courts of the thirteenth century as a cause of escheat; but it would be rash to deny that the tenant might lose the land by reviling his lord, particularly [p.286] if the lord kept a court and the tenant were duly forjudged the land by his peers; and Bracton distinctly says that any violent laying of hands upon the lord will cause a loss of the tenement.²⁶⁹ As to the dealings with the tenement which might work a disherison, lord or tenant might well lose his rights in the land by disavowing the tenure. In Bracton’s day this principle was being degraded into a mere rule of property law, one of the complicated mass of rules about warranty and so forth; but we have just seen how in 1225 such a disavowal was still spoken of as a felony.²⁷⁰

Homage, by whom done and received.In other quarters we may see that homage has been losing its meaning. It has been connected with military tenure. According to Bracton it is due if the tenement is held by knight’s service, even though but one half-penny of scutage be payable; it is due also if the tenure is a serjeanty, at all events if the serjeanty be one that concerns the king; but it is not due from tenants in socage, though as a matter of fact they sometimes do it; if the tenure were villeinage, it would be dangerous to take the tenant’s homage, as this might imply an enfranchisement.²⁷¹ Glanvill gives us an important clue when he says that a woman cannot do, though she may receive homage;²⁷² in Bracton’s day this is otherwise, a woman may well do homage.²⁷³ Homage has implied a willingness to fight if need be, and even when it had become admitted that women might hold military fiefs—here in England they seem, as will be remarked hereafter, to have held such fiefs from the Conquest onwards—they could not say the words which imported an obligation to risk life itself in the lord’s service.²⁷⁴ But all this was passing away, and, despite what Bracton says, it seems to have been common for the socage [p.287] tenant to do homage.²⁷⁵

The lord’s obligation.The contract was not one-sided. The lord was bound to defend and warrant his gift. When we hear of “warranty,” we are wont to think of a mere institute of private law common enough at the present day, the obligation of a seller to compensate a buyer who is evicted by superior title, and the covenants for title expressed or implied in our modern purchase deeds appear as the representatives of the ancient warranty. But the primary obligation of the warrantor in old times was not that of making compensation. His obligation to give his tenant a tenement equal in value to that whence he had been ejected was but a secondary obligation arising upon the breach of the primary obligation, namely, the duty of defending the tenant in his possession “against all men who can live and die.” If the tenant was attacked by process of law, he vouched his lord, he called upon his lord to defend the action, and the lord if he did his duty defended it. Now here we see a great force at work. Do what we may to make all men equal before the law, a rich man has and must always have advantages in litigation; he can command the best advice, the best advocacy. But in the middle ages the advantages of the rich and powerful must have been enormous. Happy then was the tenant who could say to any adverse claimant:—“Sue me if you will, but remember that behind me you will find the earl or the abbot.” Such an answer would often be final. We must understand this if we are to understand the history of commendation. The owner of land who gives it up to a great man and takes it back to hold by rent and services receives a “valuable consideration” for the surrender and submission. This is so even within the sphere of law and litigation; he has made his hold upon the land secure, for he has at his back a warrantor whom no one will rashly sue. We must add that he has a lord who may use carnal weapons or let loose the thunders of the church in defence of his tenant.²⁷⁶

§ 7. Relief and Primer Seisin

[p.288]The incidents of tenure.The lord’s rights cannot be summed up by saying that he is entitled to service of one kind or another from his tenant. Blackstone in a well-known passage enumerates “seven fruits and consequences inseparably incident to the tenure in chivalry, viz aids, relief, primer seisin, wardship, marriage, fines for alienation and escheat.”²⁷⁷ Of all of these we must speak, but we shall speak of them in a somewhat different order, and in the course of our discussion we must point out how far they were peculiar to military tenure.

Heritable rights in land.In the thirteenth century the rights of a person who holds land are usually heritable; when he dies the land will descend to his heir. We must not here discuss the canons of inheritance; it will be sufficient if we notice a few salient points. In the first place, the “heir” of English law is an essentially different person from the Roman “heres”:—he never claims under a will. With few exceptions, the broad rule holds good that no one can give rights in land by his will, and even in those cases in which such rights are thus given the person who gets them does not get them as “heir.” Only God, says Glanvill, can make an heir, not man.²⁷⁸ A distinction between land and movables is thus established; even when the dead man has not bequeathed his movables, the heir as such has no claim to them. In the second place, one main rule of the law of inheritance is the primogenitary rule:—among males of equal degree only the eldest inherits. This rule has been gradually extending itself; once appropriate to the military tenures, it is becoming the common law for all. Women can inherit even though the tenure be military; they are postponed to males of equal degree; several women of equal degree will share the inheritance between them, will be co-heiresses, coheredes. Lastly, though the rights of a tenant of land are usually heritable, this is not always the case: A may give land to B merely for his (B’ s) life; on the death of this tenant for life there will be nothing for his heir; the land will “return” or “revert” to A. But more, to make the rights of the donee heritable rights, the giver must use [p.289] words which make this plain; if he merely gives the land “to B, ” then B is only a tenant for life; he must give it “to B and his heirs.”²⁷⁹

Reliefs.But the heir, whom we will suppose to be of full age, does not come to his inheritance without having to pay for it; he has to pay to his lord—and this is what concerns us here—a relief (relevium, or in earlier documents relevatio or relevamen). In Glanvill’s day the relief for a knight’s fee is fixed at 100 s.; for socage land it is one year’s rent; as to baronies and serjeanties, there is no settled rule; the heir must make the best bargain that he can.²⁸⁰ The Dialogue on the Exchequer tells us that the relief for the knight’s fee is 100 s.; that for the barony is in the king’s discretion.²⁸¹ Excessive reliefs stood foremost amongst the grievances alleged by the barons in 1215; they asked that the heir should have his inheritance by “the ancient relief,” which relief was to be defined by the charter. And by the charter of 1215 it was defined; the heir of an earl’s barony was to pay £100, the heir of a baron’s barony £100, the heir to a knight’s fee 100 s.²⁸² This was repeated in the charters of 1216, 1217 and 1225; but at some time or another the relief for a baron’s barony was reduced by one-third, namely, from £100 to 100 marks, and thus the notion that a barony consists of 131⁄₃ knights’ fees was engendered. The change, however and whenever it was introduced, was sanctioned by the charter of Edward I.²⁸³ Bracton states the law as to earldoms, baronies and knights’ fees in its final form; the relief for serjeants is still in the discretion of the lords.²⁸⁴ As to socage, he seems to doubt whether anything that can properly be called a relief is payable; for the lord has no wardship of the sokeman’s heir, and in general relief and wardship are connected rights. However, the heir has to make a certain payment (quaedam praestatio), namely, an additional [p.290] year’s rent. Then as to fee farm, Bracton says that no fixed rule has been established; but a reasonable payment should be made, regard being had to the needs of the lord and the means of the tenant.²⁸⁵ In Normandy the relief seems to have had much the same history. In the oldest statement of Norman law the reliefs of counts, barons and knights are mentioned but their amount is not defined, while tenements that are not held by military service are rated at 5 shillings for the capital messuage and 12 pence per acre for the land.²⁸⁶ A little later we read that baronies pay £100 and knights’ fees £15.²⁸⁷ As in England, so in Normandy a relief was payable by every heir, even though he were the direct descendant of the dead tenant. This is noteworthy, for, according to a very common French custom, a relief was only exigible when the land descended to a collateral heir; but in France, as in England, we often find that one year’s rent, or one year’s profit, of the land, is deemed the due relief.²⁸⁸

Rights of the lord on the tenant’s death.The amount of the due relief is not the only, perhaps not the most important, point that has been in debate. A tenant dies: his heir was living in the same house with him: or his heir was not living on the tenement but at once presents himself: or his heir has gone to the wars, or has gone on pilgrimage: or two claimants appear, each asserting that he is heir: or a stranger intrudes himself into the tenement, setting up a claim as heir, or relying on some title adverse to the ancestor, or on his strong right arm: what in all these cases are [p.291] the rights of the lord? To simplify the question, What is the general notion of the lord’s right—is he entitled to take the land and hold it until the true heir asks for it, does homage and pays relief, or is he only entitled to receive the relief having no concern with the land? There has been a conflict between inconsistent theories representing inconsistent interests. Already in Glanvill’s day it is settled that if the heir is in seisin the lord may not turn him out; the heir may resist the lord. Still the lord is entitled to a certain recognition of the fact that, though the tenement belongs to the tenant, it belongs also to the lord; he may enter and go through the ceremony of taking seisin, but he must do no damage.²⁸⁹ Bracton repeats this: in the case just put the lord may have “a simple seisin” of the land which does not disturb the heir’s seisin. But other cases must be discussed:—for example, at the ancestor’s death the heir may be absent, the tenement left vacant. In this case the lord may enter, and then the heir when he appears must not oust the lord by force; if he does so, the lord will have an action against him and will be restored to possession. So again, if there are two rival claimants of the inheritance neither of whom is yet in possession, the lord may enter and hold the land until one of the two has proved his right.²⁹⁰ We must remember that if no heir appears, the tenement will belong to the lord for good and all; also that if there is a dispute between several would-be heirs, the lord’s court is, at least in theory, the proper tribunal for its decision, and the lord who takes homage from a pretender runs great risk in so doing: he may have to warrant that pretender’s seisin, unless he has been careful to declare that the homage is received without prejudice to the rights of other claimants. A conflict between two sets of proprietary rights, those of the lord and those of the tenant, is thus complicated by the lord’s jurisdictional powers. In the struggle which precedes the Barons’ War the grievances of the tenants who stand low in the feudal scale become audible; and this is one chief grievance—on the tenant’s death the lord enters the tenement and wastes it; the heir can get [p.292] no damages. An attempt to redress this grievance was made by the Provisions of 1259; a more successful attempt by the Statute of 1267; the heir is to have damages if the lord does any harm, for if the heir is forthcoming and in possession of the land, the lord is entitled to no more than “a simple” or as we should say a formal, “seisin.”²⁹¹

Prerogative rights of the king.But here, as in many other cases, the king is outside the common law. This is fully recognized by the Statute of Marlborough (1267)²⁹² and made yet clearer by the document known as Praerogativa Regis.²⁹³ When a tenant in chief of the crown dies, the king’s escheator seizes the land and inquires who is next heir (inquisitio post mortem); not until the heir’s right has been established by inquest, not until he has done homage, and paid, or given security for, his relief, will he be put in seisin; and if, impatient of delay, he puts himself in seisin, this will be a mere intrusion upon the king; for the king is entitled to the primer seisin (prima seisina).²⁹⁴ The machinery for enforcing this right seems to have been slowly perfected under Henry III.; but there is no room for doubt that the right itself had been enforced, though perhaps with less regularity, at a much remoter time.²⁹⁵ On the Pipe Roll of 1130 the reliefs that are mentioned are in some cases high,²⁹⁶ and the payment of relief is spoken of as though it were a condition precedent to the enjoyment of the land.²⁹⁷

[p.293]Earlier history of reliefs. We are thus brought within seventy years of the Conquest. As to what had happened in that interval, we have two emphatic declarations. Henry I. in his coronation charter said, “When any of my barons, earls or others, who hold of me shall die, his heir shall not redeem, or buy back (heres suus non redimet) his land, as he used to do in the time of my brother, but shall relieve it with a just and lawful relief; and in like wise the men of my barons shall relieve their lands from their lords by a just and lawful relief.”²⁹⁸ In the second place, the chronicler when telling how Rufus kept bishoprics and abbeys vacant and made profit out of their temporalities, adds that he desired to be the heir of every man in England hallowed or lay.²⁹⁹ We see then that there already was an idea of a just and lawful relief, that William Rufus had exceeded its measure, and had in effect required the heir to purchase his ancestor’s land.³⁰⁰ In order to discover what was the just and lawful relief, we naturally turn to the Leges of the time, and we find that the compilers of them consider that the modern relief is but the ancient English heriot under a new name.

Relief and heriot.We are told that the ancient heriot (heregeatu, military apparel) had at one time consisted of the horses and arms lent by the lord to his man which on the man’s death were returned to the lord. In the laws of Cnut it is said that if by negligence or in consequence of sudden death any one quits this life intestate, the lord shall take no more of his property than his rightful heriot. The heriot of an earl is eight horses, four saddled and four unsaddled, four helms, four hauberks, eight spears, as many shields, four swords and 200 mancusses of gold; that of a king’s immediate thegn (cyninges þe-genes þe him nyhste syndon) is four horses, two swords, four spears, as many shields, helm, hauberk and 50 mancusses of gold; that for a mesne thegn (medemra þegna) a horse and harness, his weapons, and a sum of money.³⁰¹ If a man falls before his lord in battle, no heriot is to be demanded.³⁰² We see from this and from other evidence that it was expected of the thegn that he would make provision for the heriot in his will. Now it is likely that for a long time [p.294] before William’s landing the old theory had ceased to describe the facts; the lord no longer provided armour for his dependent warriors; he gave them land instead, and very possibly the horses, arms and money rendered to the lord on his man’s death were by this time considered as a due paid by the heir in respect of the land. At all events the Normans had no difficulty in regarding the heriot as a relief. On the first page of Domesday Book we read how, when a Kentish alodiarius dies, the king has the relevationem terrae, except on the lands of certain great lords.³⁰³ In Berkshire when a king’s own thegn or knight died he used to leave as a relief to the king all his arms and one saddled and one unsaddled horse.³⁰⁴ In Nottinghamshire a thegn who has more than six manors pays £8 for the relief of his land to the king; if he has but six or fewer, he pays 3 marks to the sheriff;³⁰⁵ a similar rule prevailed in Yorkshire.³⁰⁶ But the most instructive entry is that which concerns the English (as opposed to the French) burgesses of Hereford. When a burgess who did service on horseback died, the king used to have his horse and arms; from one who had no horse the king had either 10 shillings or his land with the houses. If he died without a will, the king had all his movables (pecuniam).³⁰⁷ Probably if we could now unravel the knot of the old English land tenures, we should find that several different “death duties”—to use a large phrase—proceeding from different principles were becoming intermixed and consolidated, and that this process was hastened by the Norman Conquest. However, it is on the basis of Cnut’s law about heriots that the compilers of the Leges attempt to construct a law of reliefs. The Leges Henrici define the relevationes of the earl, the king’s thegn and the mediate thegn (mediocris thayni) by translating the words of Cnut.³⁰⁸ The Leis Williame follow the same model, but add that the relief of the villein is his best beast, and that a year’s rent is the relief of one who holds land at a yearly rent.³⁰⁹ Passing by for the moment this mention of the agricultural classes, we seem entitled to the inference [p.295] that Cnut’s law appeared as the only measure by which the “just and lawful relief” of Henry’s charter could be determined. Of any competing Norman measure we hear nothing. In Normandy, as in England, the relief sometimes consisted of the dead man’s armour, and was therefore, in the oldest sense of the word, a “heriot.”³¹⁰ But that Henry observed, or promised to observe Cnut’s law, we may not infer; its terms were fast becoming obsolete. Perhaps he considered, and was justified by Norman law in considering, that, at least in the case of earldoms and baronies, there was no fixed rule. The reliefs mentioned in the one Pipe Roll of his reign that has come down to us suggest that he allowed himself a liberal discretion and paid little regard to the antique rules about heriots.

Heritability of fees in the Conqueror’s reign.We are thus led to the question whether the followers of the Conqueror who received great gifts of English lands held those lands heritably. It is certain that they did; but this answer may require qualification and the difficulty of the question should be seen. As a matter of fact, their heirs in some cases succeeded them, and we even find women succeeding to baronies and military fees. But the number of tenures existing at a later day that can be traced back to the Conqueror’s reign by an unbroken thread of inheritance might easily be exaggerated. The great honours were frequently falling into the king’s hand by way of escheat. True, that in all or most cases the cause why the heir did not inherit may have been the treason or felony of his ancestor, or something that the king chose to treat as such.³¹¹ But this practical precariousness of tenure would check the formation of a law of inheritance applicable to military fees, and we have to remember that new canons of inheritance, primogenitary canons, were being evolved. Primogeniture was new in England, perhaps it was not very old in Normandy; near the end of the twelfth century both in England and in Normandy some of the most elementary points in the new system were still unsettled.³¹² [p.296] Any uncertainty about the rules of descent would give an opening for the king’s interference.³¹³ Add to this that the line between office and property is long an uncertain, fluctuating line. Are the earldoms, the counties, comitatus, to be hereditary; are the sheriffdoms, the vice-counties, vice-comitatus, to be hereditary; is the comes to be the successor of the ancient ealdorman; is the sheriff to be like the Norman viscount?³¹⁴ And what of the new castles that the king has erected? The very caput honoris, is it not a royal fortress? Any reminiscence of precarious beneficia that was latent in Norman law would bear fruit when such questions as these had to be answered by a conquering king who was building up a kingdom for himself and his heirs. No doubt his followers believed that they obtained hereditary estates, though we do not know that they had any warrant for this belief on parchment. But they knew that their heirs must relieve their lands. What would be the measure and conditions of the relief, time would show.

Mesne lords and heritable fees.And as with the king, so with the mesne lords. The Abbot of Abingdon soon after the Conquest enfeoffed knights to fill the places of the thegns who fell at Hastings, regardless of any rights that the heirs of those thegns might have. Perhaps they were disinherited on the score of what was accounted the felony of their ancestors. This, however, is not the defence relied on by the chronicler of the abbey, who was not without patriotism; the thegns, he thinks, had little enough right to the possession of lands that had been given to the church. Then in the days of Rufus one of the new knights died leaving three daughters; the abbot of the day stoutly denied that there had been any hereditary feoffment, and at last [p.297] would only admit the heiresses and their husbands as tenants for life on their abjuring all heritable rights.³¹⁵ Dare we say that he was obviously in the wrong? A historian of law may easily credit his characters with too much foresight; the truth is that men gave lands and took lands and left the terms of the tenure to be decided thereafter by the course of events and their own strong wills.³¹⁶ And so the feoda of the Norman reigns are indubitably hereditary: the very word is beginning to imply, even if it does not already clearly denote, heritability; but the lord has rights and to define them is difficult. The past history of the precaria which became beneficia, the beneficia which became feoda, the evolution of primogenitary rules, the conquest of England and consequent clash of laws, the ever renewed “treasons” and “felonies” perpetrated by the barons, all tended to keep the matter in uncertainty, and when finally the king’s rights emerge into clear daylight, they are large: the heir of the baron must make the best bargain that he can. To ascribe the law of reliefs and primer seisins to the covetousness of Rufus and the cunning of Flambard is to look only at the surface.

History of the heriot.The heriot was not suppressed by the relief, though in course of time it underwent a transformation. Glanvill tells us that the freeman who makes a will is bound to “recognize” his lord with the best and principal thing that he has and then to “recognize” the church.³¹⁷ Bracton repeats this: the lord should have the best chattel, the church the second best, or the third best, or it may be the church is entitled to nothing, for customs vary.³¹⁸ This will remind us of the gifts of arms and money made to the king by his thegns in the old days with a request that their wills may be allowed “to stand.” Elsewhere Bracton calls these testamentary gifts to the lords “heriots”; he tells us that the lord gets them by grace rather than by right, that they are regulated by local customs, that they do not touch the inheritance and that they must not be compared to reliefs. Britton adds that in general they are paid rather by villeins than by [p.298] freemen.³¹⁹ Turning to manorial surveys, we find it among the commonest of customs that when a tenant in villeinage dies, the lord shall have the best beast; sometimes a similar due is taken from the goods of the dead freeholder, and it is to these customary dues that the name “heriot” permanently attaches itself. Occasionally we still hear of the freeholder’s horse and armour going to his lord; but far more commonly the tenement that is burdened by a heriot is a peasant’s holding, the lord gets the best ox, and in this case the term heriot must in the eyes of the etymologist be inappropriate.³²⁰ We may guess that in the heriot of the later middle ages no less than four ancient elements have met:—(1) the warrior who has received arms from his lord should on his death return them; (2) the peasant who has received the stock on his farm from his lord should return it, and if his representatives are allowed to keep it, they must recognize the lord’s right to the whole by yielding up one article and that the best; (3) all the chattels of a serf belong in strictness of law to his lord and the lord takes the best of them to manifest his right; (4) in the infancy of testamentary power it has been prudent, if not necessary, that the would-be testator, however high his rank, should purchase from the king or some other lord that favour and warranty without which his bequests will hardly “stand.” But at any rate in course of time the heriot is separated from the relief.

Relief on the lord’s death.If a relief is payable when the original tenant dies and his heir takes up the inheritance, should not a similar payment be made when the original lord dies? We are told that, in the early days of the vassalic beneficium, the death of either party to the contract put an end to the tenancy, and on the continent the new lord on succeeding to his ancestor could often exact a payment from the tenant.³²¹ A remarkable document has come down to us in which William Rufus fixes the relevamen which is to be paid to him by the knights of the episcopal barony of Worcester; Hugh de Lacy is to pay £20, Gilbert FitzTurold 100 shillings, the Abbot of Evesham £30, and so forth. The occasion of the relief seems this, that the Bishop [p.299] of Worcester is dead and Rufus chooses to regard himself as the successor of St. Wulfstan, since the temporalities of the see are in his hand; “for he would be the heir of every man whether hallowed or lay.”³²² This we may regard as an act of oppression, but the legal excuse for it probably is that a relief is due from the tenants to their new lord. Of such payments we do not hear much more under the name of reliefs; but in Normandy one of the regular “aids” payable to the lord was an aid towards helping him to pay his own relief; half the relief that he had to pay he might obtain from his tenants by way of aid.³²³ In England we do not reckon this among the regular aids, but Glanvill distinctly sanctions the lord’s claim,³²⁴ and we may see that the new bishop or abbot often expected that his knights and other tenants would “recognize” him handsomely when he entered into possession of his temporalities.³²⁵

§ 8. Wardship and Marriage

Wardship and marriage.Of great and increasing importance as men grow wealthier and begin to traffic in all manner of rights, are the rights of the lord to wardship (custodia, warda) and marriage (maritagium), and these have been among the chief causes of that classification of tenures which has come before us.

Bracton’s rules.In Bracton’s day they had reached their full stature. Their nature may be illustrated by a simple case. A tenant, who has but one tenement, and who holds it by knight’s service or military serjeanty³²⁶ of a mesne lord, dies leaving as heir a son who is under the age of twenty-one years. The lord will have the wardship of the land until the heir attains that age or dies without having attained it. He will take the rents and profits of the tenement for his own use, but ought thereout to provide for the youth’s maintenance and pay the dead [p.300] man’s debts;³²⁷ he must not commit waste; if he does so, he forfeits the wardship.³²⁸ But, besides the wardship of the land, he will be entitled to the wardship of the body of the heir; if the heir escapes from his custody, if another takes the heir from his custody, this is a wrong to him; by legal process he can compel the restoration of the heir’s body.³²⁹ But further, as guardian of the heir’s body he is entitled to the boy’s “marriage”; he can sell him in marriage;³³⁰ but the marriage must not be of a disparaging kind.³³¹ The law does not go so far as actively to constrain the ward to marry the mate provided by the guardian, nor does it declare null a marriage solemnized without the lord’s consent, though we have a hint that early in Henry III.’s reign such an union might not have all those legal results that a marriage usually has.³³² The maxim was admitted, strange as this may seem to us, that “marriages should be free,”³³³ and the church would neither have solemnized nor annulled a sacrament at the bidding of the lay tribunals. Still if the ward married without the lord’s consent, he wronged the lord, and so did any one who took part in procuring such a marriage.³³⁴ Without making any great change in the substantive law, the Statute of Merton (1236) defined the lord’s right by giving him new and efficient remedies:— the current of legislation had in this instance set in his favour.

Wardship of female heirs.If the heir was a woman, the lord’s right of wardship was much the same; but whether the wardship of a woman was to endure until she attained the age of twenty-one, or was to cease when she attained the age of fourteen, seems to have been a moot point. [p.301]³³⁵ Marriage with her lord’s consent put an end to the wardship of a woman. But according to old law, which Bracton regarded as still in force, no woman holding by military service could lawfully marry without her lord’s consent, and even a father holding by military service could not in his lifetime lawfully give his daughter in marriage without his lord’s consent.³³⁶ This right the king rigorously enforces over widows who hold of him in chief; to marry such a widow without the king’s licence is a grave offence.³³⁷ The lord’s rights, it will be understood, were proof against any claim on the part of even the nearest of kin; the heir fell into the lord’s hands even though his mother were alive. An apparent exception existed when the heir inherited from his mother while his father was living; but this was hardly an exception, for in this case the father, according to an opinion that was gradually prevailing, continued in possession of his late wife’s land, not as guardian of the heir, but in his own right.³³⁸

Priority among lords.If the dead man held by knight’s service or military serjeanty of several mesne lords, each of them got the wardship of the tenement that was holden of him. As to which of them should have the wardship of the heir’s body and with it the right of marriage, there was intricate law; the general rule traced back the titles under which the dead man held the various tenements and preferred that lord from whom, or from whose ancestors, the most ancient title was derived; that lord would usually have been, not merely the dead man’s lord, but his liege lord.³³⁹

What tenures give wardship.If the dead man held his one tenement in socage, burgage, or fee farm, or by a non-military serjeanty, his lord had no right to wardship or marriage: such was the general rule. As a matter of fact, however, we find socage tenure subjected to these burdens. This seems to have been the case throughout the Bishop of Winchester’s barony;³⁴⁰ the dean and chapter of Hereford claimed wardship of the heirs of all their freehold tenants;³⁴¹ the Archbishop of Canterbury, [p.302] the prior of Christ Church, the monks of Dover claimed the same right over the heirs of their gavelkinders.³⁴² This Bracton regarded as an abuse, though one that might be sanctioned by prescription.³⁴³ The ordinary rule was that the guardianship both of the land and of the child should go to the nearest of those relations who could have no hope of inheriting the land. Thus, in the common case, when the dead tenant in socage left a son and a widow, the widow would have the wardship of her son and of his land; she would be “guardian in socage,” for she never could be his heir. To state the main upshot of the rule—maternal kinsfolk have the wardship of a paternal inheritance, paternal kinsfolk of a maternal inheritance.³⁴⁴ When the heir attained his fifteenth year, guardianship in socage came to an end.³⁴⁵ If the dead man held one tenement by knight’s service, another by socage, the wardship of the one would belong to its lord, that of the other to a kinsman of the heir; as to the wardship of the heir’s body, this and his marriage would belong to the lord of whom he held by military tenure.³⁴⁶

Prerogative wardship.Once more we see the king above the common rules.³⁴⁷ If the dead man held in chief of the crown by knight’s service or by grand serjeanty, the king was entitled to the wardship of the heir’s body and to his marriage, no matter how many other lords there might be, and no regard being had to the relative antiquity of the various titles by which the tenements were holden: no one can compete with the king. But further, the king was entitled to the wardship of all the lands which this dead man held, no matter of whom he held them. Such was the right of “prerogative wardship,” and a clause in the Great Charter had been necessary to keep it within these spacious bounds.³⁴⁸ The king was thereby excluded from a prerogative wardship when the tenement holden in chief of the crown was holden in socage, burgage, fee farm or by a petty serjeanty. He was also excluded when the dead man, though a tenant in chief of the [p.303] king, held not “as of the crown” but “as of an honour” which was temporarily or permanently in the king’s hands. It is this last rule that chiefly serves to establish a difference between tenure ut de corona and tenure ut de honore.³⁴⁹

The lord’s rights vendible.The guardian’s rights in the person, in the marriage, in the lands of the heir are regarded as property; they are saleable, assignable rights; large sums are paid for the wardships and marriages of wealthy heirs;³⁵⁰ indeed so thoroughly proprietary and pecuniary are these rights that they can be disposed of by will; they pass like chattels to the guardian’s executors.³⁵¹ In Bracton’s day no distinction in this respect seems drawn between the guardian in chivalry and the guardian in socage. Neither one nor the other need account to the heir for the profits of the land; the one like the other can sell the ward’s marriage.³⁵² This was so until the eve of the Barons’ War, when one of the Provisions of Westminster, afterwards confirmed by the Statute of Marlborough, laid down the rule that the guardian in socage must, when the heir has attained majority, account to him or her for the profits of the land, and is not to give or sell the ward in marriage save to the profit of the ward.³⁵³ This should be had in mind if we are to understand the rights of the guardian in chivalry. The morality of the twelfth century saw nothing shameful in the sale of a marriage; the law of the time looked upon guardianship as a profitable right and would hardly have had the means of compelling a guardian to render accounts, even had it wished so to do.³⁵⁴

Wardship and the serjeanties.One small point remains to be mentioned. It is the law about wardships and marriages that gradually divides the serjeanties into [p.304] two classes, known as “grand” and “petty.” In the Great Charter, John was forced to say that he would claim no prerogative wardship in respect of “any small serjeanty such as that of supplying us with knives or arrows or the like.”³⁵⁵ The term “small serjeanty” seems one which is not yet technical, and the nature of those serjeanties which are too trivial to justify the royal claim is indicated in the rudest manner. In Bracton’s day one opinion would have applied a merely pecuniary test; a great serjeanty is one that is worth 100 shillings;³⁵⁶ but gradually a different line seems to have been drawn: the tenant by grand serjeanty must do his service in person, and his service must not consist of a mere render.³⁵⁷ Another question was whether tenure by serjeanty of a mesne lord would give the lord wardship and marriage. Here also a line had to be drawn, but where it should be drawn was a question between Raleigh and Segrave. The “rodknight’s” serjeanty of riding with his lord, will this give wardship and marriage? Raleigh decided that it would; Segrave dissented. Bracton seems inclined to hold that the lord’s rights only arise when the serjeanty is one which concerns the defence of the realm.³⁵⁸

The law in Glanvill.Looking back from Bracton to Glanvill we see but little change. In his treatment of these matters Bracton has but revised and expanded his forerunner’s text.³⁵⁹ The Statute of Merton has at a few points given a sharper edge to the lord’s rights; the Great Charter has suppressed some abuses which had grown up under Richard and John, in the main abuses of the prerogatival rights. To speak of the English lords as groaning under the burdens of wardship and marriage is hardly permissible;³⁶⁰ we do not hear their groans. In the days of their power, in 1215 and in 1258, they had little to suggest; it was enough that the heir’s land should not be wasted, that wards [p.305] should not be married below their station.³⁶¹ Certainly there was at one time a tradition that in or about the year 1222 “the magnates of England granted to King Henry the wardship of their heirs and of their lands, which was the beginning of many evils in England.”³⁶² This story, however, has not been traced beyond chronicles which in this context must be styled modern, and as it is absolutely certain that the king’s right to wardship was much older than Henry III.’s day, we may well doubt whether there is even a grain of truth in the tale.³⁶³ More important is it for us to notice with many recent writers that Glanvill says nothing about the lord’s right to the marriage of a male ward; he speaks only of the marriages of women. This is remarkable, but we cannot adopt the popular opinion that this new right, if new we must call it, “was based simply on a strained construction of the general word heredes in a section of Magna Carta.”³⁶⁴ We can trace the sale of the marriages of boys back to a very few years after Glanvill’s death; in 1193 the Bishop of Ely, William Longchamp, for 220 marks buys from the king the wardship of Stephen Beauchamp and the right to marry him wherever he may please.³⁶⁵ Such transactions are common enough throughout the reigns of Richard and John. Archbishop Hubert gives 4,000 marks for the wardship and marriage of Robert Stuteville, though the king reserves a certain veto on the choice of a bride.³⁶⁶ If two men who have filled the office of chief justiciar invest their money thus, the security is fairly good. We must suspect that under Henry II. the sale of the male ward’s marriage was a growing practice. As to earlier days, the one extant Pipe Roll of Henry I.’s reign shows us the king selling wardships,³⁶⁷ and selling the marriages of women;³⁶⁸ it [p.306] seems to show that even the male ward could not lawfully marry without his lord’s consent.³⁶⁹

Earlier law.Then however in our backward progress we come to the declaration of Henry I. in his coronation charter:—“If any of my barons or other men wishes to give his daughter, or sister, or niece, or cousin in marriage, let him speak with me; but I will neither take anything of his for the licence, nor will I forbid him to give her away, unless it be to an enemy of mine. And if on the death of one of my barons or other men he leaves a daughter as heir, I will give her with her land by the counsel of my barons. If he leaves a widow, who is without children, she shall have her dower and marriage portion, and I will not give her in marriage against her will. If she has children, she shall have her dower and marriage portion while she remains chaste, and I will not give her unless with her consent. And the wife or some other relative who has the best claim shall be guardian of the land and of the children. And I bid my barons keep within the same bounds as regards the sons, daughters and wives of their men.”³⁷⁰ That Henry made these promises is certain, that he broke them is equally certain; but here again, as in the matter of reliefs, the question arises whether his promises represent the old law as it stood before the tyranny of Rufus and Flambard, or whether he is buying support by relaxations of ancient rules. The question is difficult, for of the Conqueror’s practice we know little, and of the Norman law of the eleventh century we know, if that be possible, less.

Norman law.In later days, Norman law and English law agree; they agree even in some of the minuter details of prerogative wardship, for as in England no lord can compete with the king, so in Normandy none can compete with the duke. Perhaps under French dominion [p.307] some of the worst characteristics of the Anglo-Norman law were mitigated. In Glanvill’s day the rule that a ward might not lawfully marry without the lord’s consent was applied in Normandy to male as well as to female wards; in later statements of the rule we hear only of female wards.³⁷¹ From a Norman lawyer, a contemporary of Glanvill, we have, what no English lawyer gives us, namely, a defence of the law, and a curious defence it is:—“A fatherless heir must be in ward to some one. Who shall be his guardian? His mother? No. Why not? She will take another husband and have sons by him, and they, greedy of the heritage, will slay their firstborn brother, or the step-father will slay his step-son. Who then shall be the guardian? The child’s blood kinsmen? No. Why not? Lest, thirsting for his heritage, they destroy him. For the prevention of such faithless cruelty, it is established that the boy be in ward to one who was bound to his father by the tie of homage. And who is such an one? The lord of the land who never can inherit that land in demesne; for heirs of a noble race always have many heirs. Besides they should be brought up in good houses and honourably educated. Those who are brought up in their lords’ houses are the apter to serve their lords faithfully and love them in truth; and the lords cannot look with hatred on those whom they have reared, but will love them and faithfully guard their woods and tenements and apply the profits of their land to their advancement.” As to prerogative wardship, the duke, who is bound to rule all his people, is more especially bound to have a care for the orphan.³⁷²

The Norman apology.That this quaint apology is mere nonsense we are not entitled to say. There was a strong feeling that to commit the care of a child to the custody of his expectant heir was to set the wolf to guard the lamb. Fortescue, when he sang the lauds of the laws of England, made boast of the wisdom of our rules about socage guardianship. Some French customs managed the matter yet more prudently, giving the custody of the lands to those who might inherit, the custody of the child’s person to those who could not inherit from him. Still we cannot regard the rights of English and Norman lords as instituted for the protection of infant life, or for the advancement [p.308] of the ward by education in a “good house,” though here we may see some set-off for what we are wont to regard as tyrannous exactions. The real question is whether we are entitled to find the explanation of the English and Norman, and (it should be added) the Scottish, law of wardship in the ancient history of the precarious beneficium.

Origin of these rights.The history of the law has been pictured thus:—Gradually the “benefice” lost its precarious character; it became a usufruct for the tenant’s life; the heirs male of his body, if competent to perform the lord’s service, acquired first a claim, then a right to succeed him; female heirs, collateral heirs, were slowly admitted; even an infant heir has a claim to succeed, a claim to succeed hereafter when he shall be able to serve the lord; meanwhile the lord will hold the land and train the heir. As to female heirs, if they are to be admitted at all, it is certain that they must not marry without their lord’s consent. Gradually tenants at will are making themselves absolute owners. The English and Norman law of the twelfth century represent a particular stage in this process. In the duchy, in the island kingdom, under pressure of strong government, customs have crystallized at an early time, while the financial necessities of the king, the wealth of his subjects, the early development of commercial ideas, give to the law its most repulsive features:—if any one has a right in England, that right must be a saleable commodity. When French and German law become definite in the thirteenth century they represent a later stage in the transformation of the beneficium; yet further encroachments have been made upon the lord’s rights, though of their once wider compass there are many memorials. The lord has a certain influence on the choice of the heir’s guardian; he confers the fief upon the guardian and sees that his own rights are not thereby impaired; if no kinsman is forthcoming, then he keeps the fief in his own hands; he has also a word to say about the marriage of his female tenants. These French and German phenomena find their best explanation in the law of England and Normandy.³⁷³

[p.309]The precarious beneficium. How far this hypothetical history can be verified in the scanty annals of the Norman duchy is a question about which we dare say no more than has been said above.³⁷⁴ There seems however to be just enough evidence to show that the Conqueror both in Normandy and in England expected that he would be consulted before any of his female tenants in chief—he had but few—took to herself a husband, and, as already remarked, the inheritance of great fiefs, at least where an office was bound up with the land, was not altogether beyond his control.³⁷⁵ There were cases in his own family which might support such a claim; had not Richard the Fearless been in ward to his lord King Louis: had not William himself been claimed by King Henry? Men said so.³⁷⁶ If the kings of the French had been compelled to abandon all hopes of contesting the heritability of the great fiefs, they had yielded slowly and reluctantly, and perhaps had hardly yet brought themselves to acknowledge the full import of the unpleasant facts.³⁷⁷ The king of the English was to be not less of a king than the king of the French, and rights of wardship and marriage were necessary to him if he was to keep any hold upon his feudatories. The use or abuse of such rights for merely fiscal purposes may begin at a later time; but there the rights were. As to the mesne lords, they seem to have taken the first opportunity that occurred of asserting similar rights; in the reign of Rufus the Abbot of Abingdon was already claiming the wardship of an infant tenant.³⁷⁸ On the whole it seems to us that the old is the true story, and that the rights of wardship and marriage are, if we [p.310] look at Europe as a whole, the outcome of a process which is benefiting the feudatory at the expense of his lord, though it may also be reducing to the level of feudatories men whose predecessors had no landlords above them. Unfortunately in England feudalism itself becomes commercial.

§ 9. Restraints on Alienation

Historical theories about the power of alienation.In the middle of the thirteenth century the tenant enjoyed a large power of disposing of his tenement by act inter vivos, though this was subject to some restraints in favour of his lord. About the history of these restraints different opinions have been held. The old English tradition, represented by Coke, regarded it as a process by which limits were gradually set to ancient liberty.³⁷⁹ On the other hand, the cosmopolitan “learning of feuds,” which Blackstone made popular, assumed the inalienability of the fief as a starting point:—gradually the powers of the tenant grew at the expense of the lord.³⁸⁰ Of late years a renewed attention to the English authorities has occasioned a reaction in favour of Coke’s doctrine.³⁸¹ The evidence deserves a patient examination, the result of which may be that we shall see some truth in both of the rival opinions, and come to the conclusion that the controversy has been chiefly occasioned by an attempt, common to all parties, to make the law of the Norman reigns more definite than really it was.

Modes of alienation.Some distinctions must first be drawn. The tenant may desire to alienate the whole, or only some part of the tenement, by substituting for himself some new tenant who will hold the tenement, or the part so alienated, of his, the alienator’s, lord; or again, he may desire to add a new rung to the bottom of the scale of tenure, to have a tenant who will hold the whole or part of the land of him, and in this case the services for which he stipulates may be different from those by which he himself holds of his lord;—we have to contrast “substitution” and “subinfeudation.”³⁸² Now each of these [p.311] two processes may harm the lord, but the harm done by the one will, to a lawyer’s eye, be different from that done by the other. First, however, we have to notice that nothing that the tenant can do without his lord’s concurrence will remove from the land the burden of that service which is due to his lord from him and from it. The tenement itself owes the service; the “reality,” if we may so speak, of the burden can be brought home by means of distress to any one into whose hands the land may come. But though this be so, an alienation of any kind may make against the lord’s interest. If a new is substituted for an old tenant, a poor may take the place of a rich, a dishonest that of an honest man, a foe that of a friend, and the solemn bond of homage will be feeble if the vassal has a free power of putting another man in his room. If the substitution affects part only of the tenement, the lord may suffer in another way, and it is hardly to be supposed that he can be bound by an apportionment of the service effected without his concurrence, so that instead of being able to look to one man and six hides for his scutage or rent, he can be compelled to look to one man and four hides for two-thirds of it, to another man and two hides for the residue.³⁸³ The harm done by subinfeudation is of a different kind. There will still be the old tenant liable as before; on his death the lord will get a relief or possibly a wardship and marriage, on his death without heirs, an escheat. These rights will not be destroyed by the subinfeudation, but their value may be seriously lessened. Suppose that A enfeoffed B to hold by knight’s service, and that B enfeoffed C to hold at a rent of a pound of pepper; B dies leaving an heir within age; A is entitled to a wardship; but it will be worth very little: instead of being entitled to enjoy the land itself until the heir is of age, he will get a few annual pounds of pepper. And so in case of an escheat, instead of enjoying the land for ever he may have but a trifling rent.³⁸⁴ Obviously the case is at its worst when [p.312] the tenant makes a gift in frankalmoin; a wardship will now be of no value at all; an escheat will give but a nominal seignory over a corporation which pays no rent, which never dies, nor marries, nor commits felony. Still, it is plausible to say with Bracton, that the lord is not injured; his rights remain what they were, though their value is diminished; he suffers damnum, but there is no iniuria.³⁸⁵

Preliminary distinctions.Also in our investigation we must keep our eyes open to differences between the various tenures. As just said, a gift in frankalmoin, though a very common, is yet an extreme case; it reduces the value of the feudal casualties to nothing. Tenure by serjeanty again may require special treatment, for is a servant to alienate the fund which should sustain him in his lord’s service? Lastly, though pure feudal theory can draw no distinction between the king and other lords, still we have already seen that the English king has very exceptional rights within the feudal sphere. Even if no exceptional rules were applied to him, still his position would be unique. Too often in discussions of questions about feudal law we are wont to speak of lords and tenants as though they were two different classes of persons with conflicting interests. Therefore it is necessary to remember that the king was the only person who was always lord and never tenant; that his greatest feudatories had one interest as lords, another as tenants; that the baron, who did not like to see his vassals creating new sub-tenancies, could not forget that he himself had a lord. The conflict of interests takes place within the mind of every magnate of the realm, and the result is that the development of definite law is slow.

This premised, we turn to our history, and first to that part of it which lies within legal memory; of the earlier time we shall be better able to speak when we have seen its outcome. Now the main facts of which account must be taken are as follows: [p.313]

Glanvill.(1) Glanvill nowhere says that the tenant cannot alienate his land without his lord’s consent, though, as he speaks at some length of the restraints on alienation that are set by the rights of expectant heirs, he has an excellent opportunity for saying that the rights of the lord also must be considered.³⁸⁶

The Great Charter.(2) The Great Charter of 1217 is the first document of a legislative kind that expressly mentions any restraint in favour of the lord. It says—“No free man shall henceforth give or sell so much of his land as that out of the residue he may not sufficiently do to the lord of the fee the service which pertains to that fee.”³⁸⁷ This has all the appearance of being a rule which imposes a new or defines a preexisting restraint; to read it as mitigating a pre-existing restraint would do violence to its words. Coke speaks as though its only effect was to make the excessive gift voidable by the donor’s heir;³⁸⁸ but it certainly could be avoided by the donor’s lord; this we learn both from Bracton and from a decision on which he relies.³⁸⁹

Bracton.(3) Throughout his work Bracton shows a strong leaning in favour of free alienation. As regards subinfeudation, he argues laboriously that it does no wrong, though it may do damage, to the lords.³⁹⁰ The very earnestness of his argument shows that he has to combat a strong feeling, still we must take his opinion as that of the royal court. The rule laid down by the third edition of the Charter he mentions only in a very casual way, as though it were directed chiefly, if not solely, against gifts in frankalmoin;³⁹¹ collections of charters and collections of pleas from his time seem to show that it produced little effect.³⁹² The strength of Bracton’s inclination in favour of subinfeudation may be shown by a passage in which he goes so far as to question the justice of the rule which treated service as a burden on land. He supposes that A enfeoffs B to hold by [p.314] a certain service; and that B enfeoffs C to hold the whole or part of the tenement by a less service; the rigour of the law, he says, permits A to distrain C for all the service due from B, but this is against equity.³⁹³ Then as to substitutions, he holds that even when B has done homage to A, nevertheless B may give A a new tenant by enfeoffing C to hold of A, and C will then hold of A whether A likes it or no.³⁹⁴ Bracton does not even expressly allow A to object that C is his personal enemy or too poor to do the service, which is very remarkable, since he does allow that the lord cannot substitute for himself in the bond of homage a new lord who is the enemy of the tenant, or too needy to fulfil the duties of warranty.³⁹⁵ He does not even say that the tenant cannot give a fragment of the tenement to be holden of the lord by a proportional part of the service, though we may take it that in his opinion the inequitable rigour of the law³⁹⁶ would prevent the tenant and his feoffee from making an apportionment which would bind the lord.

Legislation as to mortmain.(4) Just in Bracton’s time alienations in mortmain were beginning to cause murmurs. The charter of 1217 had struck at certain collusive practices to which the churches had been privy.³⁹⁷ In 1258 at the Oxford parliament the barons prayed remedy, that men of religion may not enter the fees of earls and barons and others without their will, whereby they lose for ever their wardships, marriages, reliefs and escheats.³⁹⁸ In 1259 the Provisions of Westminster ordained that it shall not be lawful for men of religion to enter the fee of any one without the licence of the lord of whom the land is holden.³⁹⁹ These Provisions were now law, now not law, as the barons or the king obtained the mastery. Most of them were reenacted by the Statute of Marlborough in 1267, but not the provision now in question; from which we may gather that the clergy were influential enough with the king, who was enjoying his own again, to put [p.315] off the evil day. But not for long, for in 1279 the Statute De Viris Religiosis,⁴⁰⁰ after referring to the Provisions of Westminster as though they were or had been law,⁴⁰¹ put a check upon alienations in mort-main. No religious persons were to acquire land; if they did, the land was to be forfeited to the lord, and he had a brief term given him for taking advantage of the forfeiture; if he failed to do so, the lord next above him in the feudal scale had a similar opportunity; and so on up to the king. The statute does not merely condemn gifts in frankalmoin; the religious are not to acquire more land, even though they are willing to pay a full rent for it. However, the king and the other lords, if any, whose interests were concerned could bind themselves to take no advantage of the statute, and licences to acquire land in mortmain were somewhat easily obtained.

Alienation of serjeanties.(5) From a comparatively early date we learn that serjeanties were inalienable. Already in 1198 the itinerant justices were directed to make inquest touching the king’s serjeanties.⁴⁰² In 1205 John ordered an inquest as to the serjeanties, thegnages, drengages and other services and lands of the honour of Lancaster, which honour was then in his hands; the sheriffs were to seize all such as had been alienated since the coronation of Henry II. without licence from the king or other good warrant.⁴⁰³ This claim was steadily maintained by Henry III.⁴⁰⁴ Towards the middle of his reign it was enforced with retrospective rigour; Robert Passelew was sent through England to “arrent” the alienated serjeanties, that is to say, to change the tenure from serjeanty into knight’s service or socage. One instance out of a very large number will serve to show what was done. Walter Devenish held land by the serjeanty of finding three arrows when the king should hunt on Dartmoor; he had alienated parts of the tenement to subtenants, his services were now changed into a rent of three shillings, one-third of which [p.316] was to be paid to him by his subtenants.⁴⁰⁵ That many of the king’s tenants by serjeanty had alienated parts of their tenements by way of subinfeudation is instructive: we learn that a restraint on alienation might exist in theory and yet be much disregarded in practice. Our evidence chiefly concerns serjeanties held of the king; but we may guess that other lords thought that a similar rule might be applied to their serjeants; and the serjeants of the honour of Lancaster, whose alienations John attacked, were not tenants in chief of the crown.

Special law for the king’s immediate tenants.(6) Bracton nowhere says that any special restriction is imposed on the tenants in chief of the crown; the utmost that he does is to suggest, and this not very definitely, that the Charter of 1217 has been construed favourably to the king. The tenant in chief by knight’s service of the king may not make a gift in frankalmoin, or a feoffment which reserves a less service than that due to the king.⁴⁰⁶ But just about the time when Bracton was writing Henry III. issued an important ordinance. It takes the form of a writ dated the 15th of July, in the fortieth year of the reign (1256). The king asserts that it is an intolerable invasion of royal rights that men should without his special consent enter by way of purchase or otherwise the baronies and fees that are holden of him in chief. He declares that for the future no one is to do this, and bids the sheriff seize the land upon which any one enters in contravention of this decree. This writ, however, remained unknown to our historians until it was published in 1896, and, as we shall see hereafter, even the lawyers of the fourteenth century seem to have been ignorant of its existence.⁴⁰⁷ Perhaps the king did not wish or did not dare to enforce in all cases the broad rule that he had laid down; the Barons’ War was at hand. The apocryphal Statute Praerogativa Regis, which may represent the practice of the earlier years of Edward I., says that no one who holds of the king in chief by knight’s service may without the king’s licence alienate the greater part of his land so that the residue is not sufficient to do the service, “but this is not wont to be understood of members or parcels of the said lands.” It adds that the king has been accustomed to set to rent (arrentare) serjeanties that have been alienated.⁴⁰⁸ In 1290 a petitioner says that the king has a prerogative that those who hold of him in chief cannot give or alienate their lands without his licence; certainly they cannot alienate all that they so hold.⁴⁰⁹ Britton states that earls, barons, knights and serjeants who hold of the king in chief cannot without his licence alienate their fees, but the king may eject the purchasers, no matter how ancient the alienation, since time does not run against the king.⁴¹⁰ Fleta states broadly that no tenements holden of the king can be given without his assent.⁴¹¹ This becomes the law of [p.317] after times. Before the end of Edward’s reign both theory and practice draw a marked distinction between the king and other lords, and the king is making a considerable revenue out of licences to alienate and fines for alienations effected without licence.⁴¹²

Growth of the prerogative right.(7) The growth of the royal right may be traced also in the articles delivered to the itinerant justices. Already in Richard’s reign they are to inquire “of the king’s serjeanties, who has them, and through whom, and how much, and what they are worth.”⁴¹³ A similar inquiry is found among the articles of Henry III.’s reign; but, though there were divers other inquiries about royal rights, wardships, escheats and the like, there seems to have been none as yet into alienations of lands not holden by serjeanty.⁴¹⁴ But in or about 1254 a special commission was issued,⁴¹⁵ which was a forerunner of the more famous Quo Waranto inquiry of Edward I.’s reign, and among the articles, besides that about serjeanties, there seems to have been one “of knights, freeholders, men of religion or others, holding land on the king’s demesne by gift or sale of the sokemen or by provision of the warden or bailiffs,” and another “of men of religion who have entered the king’s fee so that the king loses wards, reliefs and tallage.”⁴¹⁶ The right asserted is growing more ample; and two years later the king issued the decisive writ. And so the inquiry becomes more extensive. In 1274 it runs thus:—“of the fees of the king and of his tenants, who now holds of him in chief, and how many fees each holds, and what fees were wont to be holden of the king in chief but now are held through a mesne lord (per medium), and what mesne lord, and when they were alienated, and how and by whom.”⁴¹⁷ Thenceforth this is one of the usual articles of the eyre, and as such it is given by Fleta and Britton;⁴¹⁸ it formed one of the Nova Capitula which were distinguished from the more ancient articles.

[p.318]Quia emptores. (8) The famous statute of 1290, the Quia Emptores Terrarum,⁴¹⁹ lies outside our limits, but a word must be said of it. It declared that every freeman might sell his tenement or any part of it, but so that the feoffee should hold of the same lord and by the same services, of whom and by which the feoffor held. In case only a part was sold, the services were to be apportioned between the part sold and the part retained according to their quantities; this apportionment was binding on the lord. The statute is a compromise; the great lords had to concede to their tenants a full liberty of alienation by way of substitution—substitution even of many tenants for one tenant—and thus incur a danger of losing their services by the process of apportionment; on the other hand, subinfeudation with its consequent depreciation of escheats, wardships and marriages was stopped. Nothing was said about the king’s rights and no one seems to have imagined that the tenants in chief of the crown were set free to alienate without royal licence; on the contrary, it is just at the moment when all other tenants are gaining perfect freedom, that the king’s claim to restrain any and every alienation by his tenants in chief attains its full amplitude.⁴²⁰

Disputed origin of the prerogative right.(9) What was the legal basis of this prerogative right? Already in the middle of the fourteenth century the lawyers had no certain answer for this question. The writ of 1256 they seem to have forgotten or but vaguely remembered and incorrectly dated; also their speculations are obscured and vitiated by the belief that the Praerogativa Regis was a statute. Already in Edward II.’s day it was clear that the royal claims were too extensive to be covered by the clause in the Charter of 1217. In 1325 complaint was made in parliament that the rule applicable to tenants in chief of the crown was being extended to tenants who held of honours which had fallen into the king’s hands; the king acknowledged the distinction; as lord of an honour he had only such rights as were given to all lords by the Charter.⁴²¹ In 1327 a statute was required to settle that, on an alienation without licence, the king was entitled only to a reasonable fine and not to a forfeiture of the land.⁴²² In 1341 it was suggested [p.319] in court that before the thirtieth year of Henry III. a tenant in chief might alienate without licence.⁴²³ In 1346 it was asserted and denied by pleaders that before the twentieth year of Henry III. a tenant in chief of the crown could alienate like any other tenant. The reporter apparently has his doubts and tells us to consider the date of the Praerogativa Regis.⁴²⁴ In 1352 the question was discussed whether in Henry III.’s reign the tenant in chief could subinfeudate without licence, and apparently the decision was to the effect that he could.⁴²⁵ In 1355 the lawyers are once more debating whether something happened in the twentieth year of Henry III. to prevent the tenant in chief from subinfeudating.⁴²⁶ Why do they single out the twentieth or thirtieth year (1235–36, 1245–46) of Henry III. as important? To say with Coke⁴²⁷ that in the twentieth (or rather in the following) year Magna Carta was confirmed, is not satisfactory; the same might be said of so many years, and the Magna Carta of the lawyers’ statute books was the charter of 9 Henry III. (1225), confirmed by Edward I. To say that they referred the Praerogativa Regis to the twentieth or thirtieth year of Henry seems impossible, since that enigmatical document mentions King Edward. Probably they were thinking of the writ of the fortieth year (1256). The discussion, however, was taken up in parliament, and there the king’s right was treated as the outcome of the Praerogativa Regis, and was said to have had its beginning in the reign of King Edward I.⁴²⁸ A declaration of the law was demanded; but the king desired further information. The question was of practical importance, for it came to this:—Could the king attack a possessor of land on the ground of an alienation made without licence in the days of King Henry—or, more generally, was there any limit of time that could be set to this prerogative right? In 1360 a statute confirmed all subinfeudations made by the tenants in chief under Henry III. and earlier kings.⁴²⁹ As we can [p.320] hardly believe that Edward III. gave up any right to which he considered himself justly entitled, we may infer that the result of repeated discussions in the courts and in parliament was to date the change in the law at the accession of Edward I. in 1272, about sixteen years after what we may now regard as the decisive ordinance.⁴³⁰

Summary as to law after the date of the Charter.On the whole then, we may be inclined to accept, with some modification, Coke’s theory of this episode. We may believe that the only restraint on the alienation of tenements holden of mesne lords that existed after the year 1217 was the somewhat vague restraint imposed or defined by the charter of that year; that, apart from this, the tenant might alienate the whole or any part of the land by way of subinfeudation, and the whole, though perhaps not a part of it, by way of substitution; that the king’s prerogative right gradually grew out of the right allowed to all lords by the charter, though it exceeded the words of that compact; that it was first asserted in all its breadth in the writ or ordinance of 1256, and may not have been stringently enforced until the accession of Edward I.⁴³¹ But as to an earlier period, there is much to be said on the other side; there are the once fashionable arguments drawn from “the learning of feuds,” while more solid arguments may be derived from English and Norman deeds.

Older law.As regards “the original constitution of feuds” little need here be said: it was an old story long before the battle of Hastings. Very generally the continental vassal could not substitute a new vassal for himself without his lord’s consent; but commonly he had some power of subinfeudation.⁴³² Wherever we look in the twelfth century [p.321] we see differences of practice and in some cases the law is becoming more favourable to the lords, less favourable to the tenants.⁴³³ In this instance however we have no need to look beyond England and Normandy. For the period between 1066 and 1217 we have hundreds of English charters,Anglo-Norman charters. and at first sight they seem to go the full length of proving that from the Conquest onward no tenant could alienate his land without his lord’s consent. It so happens also that in Normandy we can trace this restraint on alienation back to the time when the duke of the Normans was not yet king of the English.⁴³⁴ The chronicle of Orderic is full of gifts made to the Abbey of St. Evroul, and in case after case the chronicler is careful to tell us how the gift was confirmed by the donor’s lord or lords; in seeking confirmation the monks ascend the scale of tenure and do not stop until they reach the duke.⁴³⁵ Then, after the Conquest, they acquire lands in England; for instance, they acquire lands from some of the men of the Earl of Chester; they seek the earl’s confirmation and the king’s. The abbot journeys to England and obtains from the Conqueror a liberal charter confirming the gifts and confirmations of his barons.⁴³⁶ This is no solitary phenomenon. Every collection of monastic charters tells the same tale. No gift is considered safe until it has been confirmed by the king and all who stand between the king and the donor.⁴³⁷ Often the donor’s lord joins in the gift itself; it is made annuente domino meo, concedente domino meo; still more often he confirms it after it has been made. What is more, he sometimes confirms prospectively whatever gifts any of his men may make to the favoured monastery. For a while [p.322] we do not hear much of money being paid for such confirmations; lands are plentiful and lords are pious; but already in Henry I.’s day men are paying for confirmations,⁴³⁸ and now and again we read stories which seem to show that a lord would sometimes call in question a feoffment to which he had not consented.⁴³⁹

Discussion of the charters.But considerable care is necessary in drawing inferences from these documents. Most of the very early charters that we possess relate to gifts in frankalmoin, and, when examined, they will often appear to be confirmations and something more. In royal confirmations it is common to find words that are not merely confirmatory. Sometimes the king denounces a penalty, a forfeiture of £10, against any who shall disturb the donees; often he wills that the donees may enjoy “sake and soke” and other liberties, which, at least in his opinion, none but he can grant. Then again, words which look merely confirmatory, demand a careful criticism. For instance if B holds of A by knight’s service and enfeoffs the abbot of C in free alms, then, when A confirms the gift, we must be diligent to observe whether he reserves his right to exact the service from the land, or uses words importing that the land is to be frankalmoin, not merely as between B and the abbot, but even as regards the confirmer himself. Thus, to take a real example, when Robert Earl of Gloucester confirms a gift which one of his tenants has made to St. Peter’s Abbey, he adds “I will that the said monks hold the same [p.323] freely, quietly and honourably in frankalmoin for ever.”⁴⁴⁰ Such words, which are very commonly found, will in all likelihood debar the earl and his heirs from ever exacting any service from this land. Indeed in Bracton’s day a lord confirming a tenant’s gift had to be extremely cautious if he wished to retain the service due from the land; if B who held of A at a rent of a hundred shillings enfeoffed C at a rent of one shilling, the mere word confirmo used by A might, if unexplained, deprive him of ninety-nine shillings a year.⁴⁴¹ Again, at least in Norman documents, there is much to suggest that a subinfeudation effected without the lord’s consent was neither void nor voidable by the lord so long as the mesne seignory of the donor endured; the donee’s danger lay in this, that by the donor’s felony or want of heirs this seignory would escheat and the donor’s lord would then be able to avoid the gift.⁴⁴² Again, we must remark that in this context little stress can be laid on confirmations when the confirmer is the king, for, quite apart from all feudal theory, a royal charter was a very efficient protection against litigation. When once such a charter was produced by the person in possession, the king’s justices would stay their hands; they would proceed no further rege inconsulto.⁴⁴³ We find too that religious houses are not content with [p.324] one royal confirmation; they obtain a fresh charter from each successive king, for, be the law what it may, no prudent man will trust to the king’s respect for his ancestor’s promises. Lastly, to complete the picture, we may add that the usual practice of the monasteries was, not to apply to the king whenever they received a gift, but to wait until they had a considerable number of gifts and then get all of them confirmed by one instrument.

Conclusions as to the law of the Norman time.In the teeth however of the long series of diplomata stretching back to the Conquest, and in Normandy beyond the Conquest, some of which deal with cases in which the donee is a layman and the confirming lord is not the king, it is quite impossible for us to hold that the restriction expressed in the charter of 1217 was a new thing, or that the free alienability of “the fee simple” is the starting point of English law. We must be content with a laxer principle: with some such idea as this, that the tenant may lawfully do anything that does not seriously damage the interests of his lord. He may make reasonable gifts, but not unreasonable. The reasonableness of the gift would be a matter for the lord’s court; the tenant would be entitled to the judgment of his peers. The charter of 1217 is a fair, though a vague compromise of conflicting claims. That it should have been so favourable to the tenants as it was, may fairly surprise us, if we have regard to other countries, and to the extreme severity of our English law about reliefs, primer seisins, wardships and marriages.⁴⁴⁴ But the Norman Conquest must for a while have favoured “free trade in land.” William, when he conferred the forfeited estates of English earls and thegns on his French followers, must have known and intended that there should be some reasonable amount of subinfeudation. This was absolutely required by the new military system; the count or baron was to have knights to follow his banner, and the services of knights could only be secured by feoffments. For a long time it would be possible for the vassals to endow sub-vassals, [p.325] for the sub-vassals to endow other sub-vassals, without any loss being inflicted on the great lords or on the king. We must add to this that for a full century after the Conquest, despite occasional quarrels, the king was in close league with the church; as against his too rebellious barons he relied on the prelates, and the prelates of course desired that men should be free to make gifts to pious uses. And just when the interests of the church as an acquirer of land were beginning to come into serious conflict with the needs of the state, the function of declaring the law of England was being committed to a group of professional lawyers who for several reasons were likely to favour free alienation. Often they were ecclesiastics; always they were the king’s servants, and as such inclined to loosen the feudal bond whenever this could be done without prejudice to their master’s rights. But, besides all this, it seems clear that merely as jurists, and all considerations of political expediency apart, they were disposed to concede to every tenant the fullest possible power of dealing with his land. Just when they were deciding that the common law put no restriction on this power in favour of the lord, they were rapidly and finally destroying the restrictions which had existed in favour of the tenant’s expectant heirs. This process will come before us hereafter, but should be noticed in this context. If the English lawyers are shutting their ears to the claims of the lords, they are shutting their ears to the claims of the kindred also, and this just at a time when in Normandy and other countries the claims of the lord and the claims of the expectant heir are finding a formal recognition in the new jurisprudence. Whether we ascribe this result to the precocious maturity of our system of royal justice, or to some cause deep-seated in our national character, we must look at these two facts together:—if the English law knows no retrait féodal, it knows no retrait lignager.

Usual form of alienation.As regards the form that alienation took, subinfeudation was certainly much commoner than substitution. Still we find the latter at an early date, if not in charters, at least in fines levied before the king’s court. Not unfrequently in John’s reign one party to the transaction grants a tenement to the other party to hold “of the [p.326] chief lords of the fee.”⁴⁴⁵ It is not always possible for us to discover the real meaning of such a transaction, as we cannot always tell whether the fine is the settlement of a genuine dispute, or a mere piece of conveyancing machinery; but it seems clear that fines were levied with little, if any, regard for the lord’s interest, and that their effect often was to give him a new immediate tenant of the whole, or even (for so it would seem) of part only of the tenement. As regards modes of conveyance less solemn than a fine, had it not been for Bracton’s distinct assertion, we should probably have come to the opinion that a new tenant, even of the whole tenement, could not be forced upon an unwilling lord. Whether we look to collections of charters or to collections of pleadings, we find the lord’s consent frequently mentioned;⁴⁴⁶ indeed sometimes the transaction takes the form of a surrender by the old tenant to the lord and a feoffment by the lord of the new tenant. When about the middle of the twelfth century Reginald Puer sells land to Whitby Abbey, he resigns all his right into the hand of Roger Mowbray to the use (ad opus) of the monks, to whom Roger gives it, putting them in seisin by the same rod (lignum) by which the resignation had been made.⁴⁴⁷ When Alexander Buddicombe sells that fifth part of a knight’s fee which he holds of Hawise Gurney to Thomas FitzWilliam, he “demises himself” in Hawise’s court and renders the land to her by the branch of a tree, whereupon she gives seisin to Thomas by the same branch.⁴⁴⁸ Still there are Bracton’s plain words:—albeit the tenant has done homage (and this of course makes the case extreme) he may put a new tenant in his place, and the lord must accept him, will he, nill he.⁴⁴⁹

General summary as to alienation by the tenant.To sum up the whole of a lengthy argument, the sound conclusion seems to be that, in treating the matter as one of purely English history, we must start not from the absolute inalienability of “the fief,” nor from the absolute alienability of “the fee simple,” but from something much less satisfactory, an indeterminate right of the lord to prevent alienations which would seriously impair his interests, a right which might remain in abeyance so long as there [p.327] was plenty of scope for subinfeudation and the liberty of endowing churches was not abused, a right on which the king’s court was seldom if ever called upon to pronounce, since the lord could enforce it in his own court, a right which was at length defined, though in loose terms, by the charter of 1217. But very probably the king’s legal position was from the first exceptional, and it certainly became exceptional in the course of the thirteenth century; with no text of law to rely upon but the charter, he succeeded, under stress of pecuniary troubles, in gradually establishing a right which could not be justified by the terms of that instrument.

Gifts made by a lord with the consent of his court.That we may be right in taking as the starting point of our law principles so vague as those just stated, may appear from this, that if we often find a lord confirming his tenants’ gifts, we sometimes find a lord consulting or professing to consult his tenants before he makes a feoffment. When Aubrey de Vere gives land to the Abbey of Abingdon, “all his knights” are said to join in the grant;⁴⁵⁰ Earl Hugh of Chester speaks with “his barons” before he makes a similar gift;⁴⁵¹ Roger de Merlay when he endows Newminster does so with the consent of “his men”;⁴⁵² “the knights” and the “good men” of the Abbot of Abingdon give their consent to an exchange which he is making with one of his tenants,⁴⁵³ and so the Abbot of Ramsey by the counsel of his barons retains the homage of Robert Foliot at the cost of two thousand eels a year.⁴⁵⁴ Each feudal group strives to be a little state; its ruler and his subjects alike have an interest in all that concerns its territory. Still this notion, that the lord ought to hold a parliament before he makes a feoffment, never hardens into law.

Alienation of a seignory.But now another question arises. Can a lord dispose of his rights over a tenant and his tenement without that tenant’s consent? We will suppose that A has enfeoffed B who has enfeoffed C, and ask whether B can, without C’ s concurrence, either put X in his (B’ s) place, so that C will hold of X who will hold of A, or place X between himself and C, so that C will hold of X, who will hold of B, who will hold of A. Now here we have to consider two different difficulties. First there is what we may call the feudal difficulty, that [p.328] of giving C a new lord, of holding him bound to serve X when he has contracted to serve B. Secondly there is a difficulty that is quite unconnected with the nature of the feudal bond but may be thus stated:—Every gift, every transfer of rights, involves a transfer of seisin, of possession. When a tenant is to be enfeoffed as a tenant in demesne, then in order to complete the feoffment it is absolutely necessary that the feoffor should deliver possession of the land to the feoffee, and this act is performed on the land; the feoffor solemnly puts the feoffee in seisin and then quits the land. But there can be no such delivery of possession in the case that is under our notice; C is tenant in demesne; it is not intended that X shall become tenant in demesne; B and X have no business to go onto the land and disturb C in his possession; what is to be given to X is not the right to take the fruits of the land but the right to C’ s services. We cannot in this place discuss this notion that a gift or a transfer of rights involves a transfer of possession; but it is deeply engrained in the law of the thirteenth century. It would seem then, that the only mode in which B can complete his gift to X, is by persuading or compelling C to recognize X as his lord. When such a recognition has taken place, then we may say that X possesses the object of the transfer; he is seised of C’ s services, he is also seised of the land “in service” (seisitus in servitio). The two difficulties then, though in a given case they may conspire, are essentially different; the difference is brought out by the question: Has B any legal process for compelling C to accept X as his lord?

Law of attornment.According to Bracton, we must distinguish. If C has done homage to B, then C may, for good cause, object to having his homage made over to X. He may object that X is his enemy—a light enmity says Bracton is not a sufficient cause—or that X is too poor to fulfil the duty of warranty, or again that homage is indivisible, and that he cannot be bound to do homage to X for part of the tenement, while he still holds the other part of B; but unless such cause is shown, C’ s homage can be transferred to X. As regards the service due from the tenement, as distinct from homage, this can always be transferred, even against the tenant’s will; the court has a process for compelling the tenant to acknowledge that he holds of the new lord; [p.329] it has a process for “attorning,” i.e. turning over, the tenant to the new lord.⁴⁵⁵ He gives a case from 1223:— X demanded homage from C, saying that B had attorned C’ s homage and service to him, X; thereupon C said that he held nothing of X and that he would not depart from B who was his lord; then B was summoned and stated that he had made the gift to X; but C still objected that he held two tenements of B by a single homage and service, only one of which tenements had been given to X, and that he would not divide his homage; whereupon the court adjudged that X should have seisin of C’ s service, but that C could not be compelled to do homage to X. Service, says Bracton, can always, but homage cannot always be attorned.⁴⁵⁶

Objections to attornment.It is somewhat curious, as noticed above, that Bracton should allow the tenant to object to his homage being transferred, for he does not allow, at least expressly, any similar objection on the part of a lord whose tenant desires to put a new tenant in his place. Possibly the necessity for an attornment, which really rested on quite other grounds, kept alive one side of an ancient rule while the other side had withered. But Bracton is very favourable to tenants. He holds, for example, that the tenant can always waive or resign his tenement and so free himself from the duties of service and homage, while the lord cannot waive the homage or refuse the service, and so free himself from the duty of warranty; and the tenant may object if any attempt be made to substitute an insolvent for a solvent warrantor.⁴⁵⁷

Practice of alienating seignories.On the whole we have little reason to suppose that the rights of the tenants had ever in this country been a serious obstacle to alienations by the lords.⁴⁵⁸ In the charters we find the lords apparently exercising the fullest power of giving away the homages and the services of their tenants. If there was any reason to suppose that the [p.330] tenant would object to recognizing a new lord, then a fine would be levied, and the tenant would be called on by a writ known as Per quae servitia to show cause why he should not be attorned.⁴⁵⁹ Fines transferring services are quite common; the subject-matter of the transfer is usually described as the service, or the homage and service of such an one.⁴⁶⁰ It would be a mistake to suppose that the lofty feudal ladders that we find in the thirteenth century, had been always, or even generally, manufactured only by the process of adding new rungs at their nether ends; new rungs were often inserted in their middles.

§ 10. Aids

Duty of aiding the lord.The duties implied in the relation between man and lord are but slowly developed and made legal duties. There long remains a fringe of vague obligations. The man should come to the aid of the lord in all his necessities; the man’s purse as well as his body should be at his lord’s disposal if the lord is in a strait. Gradually the occasions on which an aid of money may be demanded are determined. Glanvill mentions the aid which helps a lord to pay the relief due to his overlord, the aid for knighting the lord’s eldest son and marrying his eldest daughter; also he raises the question whether the lord may not demand an aid for the maintenance of a war in which he is concerned; such a demand, he thinks, cannot be pressed.⁴⁶¹ From the Normandy of Glanvill’s time we hear of the aid for the lord’s relief, for marrying his daughter and knighting his eldest [p.331] son.⁴⁶² The charter of 1215 mentioned as the three aids, which the king might take without the common counsel of the realm, that for redeeming his body, that for marrying his daughter and that for knighting his son; and such aids were to be reasonable.⁴⁶³ As is well known, the clause which dealt with this matter appeared in no later edition of the charter. During John’s reign the prior of St. Swithin’s took an aid from his freeholders, farmers and villeins for the payment of his debts;⁴⁶⁴ the Bishop of Winchester took an aid for the expenses to which he had been put in the maintenance of the king’s honour and the dignity of the church;⁴⁶⁵ the Abbot of Peterborough took an aid to enable him to pay a fine to the king;⁴⁶⁶ the Earl of Salisbury to enable him to stock his land.⁴⁶⁷ Nor do such aids cease with the year 1215; in Henry III.’s reign the Bishop of Bath took an aid for the support of his knights in the king’s service.⁴⁶⁸ In 1217, after a Welsh war, the king’s military tenants who had done their service received permission, not only to collect the scutage from their knights, but also to raise a reasonable aid from all their freemen.⁴⁶⁹ However, the clause expunged from the charter seems practically to have fixed the law. We learn also that it was next to impossible for the lords to collect aids without obtaining the king’s writ and the sheriff’s assistance. That writ would name no sum; the aid was to be “reasonable.” So late as 1235 we see Henry Tracey, having first obtained the king’s writ, holding a little parliament of his knights in Devonshire; they grant him an aid of 20 shillings on the knight’s fee for the marriage of his eldest daughter.⁴⁷⁰ Bracton speaks of these aids as due rather of grace than of right; they are the outcome of a personal not of a predial obligation; they are not to be reckoned as “services.”⁴⁷¹ This is the ancient theory; but it must already have been obsolescent. A statute of 1275 fixed the rate of the aid to be taken for marrying the eldest daughter and knighting the eldest son at 20 shillings for the knight’s fee and 20 shillings for 20 librates of socage land,⁴⁷² and thus in effect destroyed the doctrine of the lord’s need and the tenant’s gracious help. This statute bound the mesne [p.332] lords; a later statute was required to bind the king.⁴⁷³ The constitutional side of the history of aids we need not here discuss, but the aid is one of the most widely distributed of the feudal phenomena.⁴⁷⁴

§ 11. Escheat and Forfeiture

Escheat.In the background but ever ready to become prominent stands the lord’s right to escheats. This forms as it were a basis for all his other rights. The superiority which he always has over the land may at any time become once more a full ownership of it. Though he has given the land to the tenant and his heirs, still there may well be a failure of heirs, for the tenant cannot institute an heir; only God makes heirs; and in this case the land falls to, escheats (excadere) to the lord. Already in Glanvill’s day a lawyer may sometimes speak of the lord as the tenant’s ultimus heres;⁴⁷⁵ but such a phrase hardly expresses the law. When land escheats the lord’s superiority swells into simple ownership; all along he has had rights in the land.⁴⁷⁶ Nor is a failure of heirs the only cause of an escheat. If the tenant is outlawed or convicted of felony then, after the king has exercised the very ancient right of wasting the criminal’s land for year and day, the tenement returns to its lord. A distinction is established between treason and felony; if a tenant commits treason all his lands, of whomsoever they were holden, are forfeited to the king, while the felon’s lands escheat to his lord. How far back this distinction can be traced seems doubtful; but John and his successors apparently insisted upon it when they enriched themselves by seizing the terrae Normannorum, the English lands of those who preferred to be Frenchmen rather than Englishmen when the victories of Philip Augustus forced upon them the choice between two nationalities. As regards felony, we have seen that the idea implied by that [p.333] term had been changing; it now stood for “serious crime,” it had once stood for “breach of the feudal bond.” On the one hand, the lords had gained; they got escheats if their tenants committed such crimes as homicide or theft; on the other hand they had lost. By openly disavowing his lord the tenant might indeed lose his tenement; even in Bracton’s day such a disavowal was sometimes called felonious,⁴⁷⁷ and in much later times a disavowal and a consequent forfeiture might be found in the fact that the tenant had paid his rent, or done his homage, to a wrongful, instead of to the rightful, claimant of the seignory. But, on the other hand, the lord seems to have had very little power of ejecting a tenant for the mere non-performance, even the wilful and protracted non-performance of his services. This is a matter which requires some examination.

Lord’s remedies against defaulting tenant.In Bracton’s day the lord when the services are in arrear has three courses open to him. (1) We may mention first—though this is not his readiest remedy—an action in the king’s court for the recovery of customs and services. This is a laborious action. It is regarded as proprietary, not possessory. A lord will hardly use it unless there is some dispute between him and his tenant about the nature or quantity of the services.Action in the king’s court. In that case it will conclusively establish the lord’s title, and the victorious lord will have the sheriff’s aid in distraining for the arrears. But, unless there has been some disavowal of the tenure on the tenant’s part, there is no action in the king’s court that will give the lord the land in demesne. Feoffors and feoffees are indeed free to make the express bargain that if the services are in arrear the feoffor may enter once more on the land and take it to himself; but we shall see few such bargains made before the middle of the thirteenth century.⁴⁷⁸ Such then is our common law, and it is well worthy of remark; it does not turn out the tenant from the land because he cannot or will not perform his services. Two statutes of Edward I. were required to give the lord an ampler remedy:—the action called cessavit per biennium was invented; if the tenant allowed his services to fall into arrear for [p.334] two years, the lord might claim the land in demesne.⁴⁷⁹ There can, we think, be little doubt that this new action was borrowed immediately from the canon law and mediately from the legislation of Justinian. It is one of the very few English actions that we can trace directly to a foreign model.⁴⁸⁰

Distress.(2) The lord’s handiest remedy is that of distraining his tenant to perform the services that are in arrear. This means that, carefully observing certain rules as to when and where and what he may seize, he takes the chattels that are found upon the tenement and keeps them until the tenant either tenders the arrears or finds security to contest in a court of law the justice of the seizure. The idea of distress (districtio) is that of bringing compulsion to bear upon a person who is thereby to be forced into doing something or leaving something undone; it is not a means whereby the distrainor can satisfy the debt that is due to him. He may not appropriate the namium, the thing that he has taken, nor may he sell it; he must keep it as a gage (vadium) so that the person from whom it has been taken may be constrained to perform his duty. This right to distrain for services in arrear is in the latter half of the thirteenth century a right that is freely exercised by every landlord, and he exercises it although he has as yet taken no judicial proceedings of any kind against his tenant. Nevertheless, we may see much to make us think that this power of extra-judicial distraint is not very old. Bracton speaks as though it were still usual for a lord to obtain a judgment in his own court before he distrains a tenant into the performance of his services; and we may see that in his day some lords were still taking this course.⁴⁸¹

[p.335]Proceedings in the lord’s own court.(3) This leads us to speak of the possibility of proceedings being taken in the lord’s own court for the exaction of the rent or the expulsion of the defaulting tenant. It is possible that at one time the non-performance of services was regarded as a sufficient cause of forfeiture. Against any disseising of the tenant “without a judgment,” there had for a long time past been a strong feeling; it finds utterance in the most famous words of the Great Charter. But probably the lord who kept a court was entitled to demand of it a judgment “abjudicating” from the tenement a tenant who, after sufficient warnings, would not render his due service.⁴⁸² However, it seems that our king’s court will not sanction so strong a measure. The most that it permits the lord to do is this:—after distraining the tenant by his chattels, the lord may obtain from his seignorial tribunal a judgment authorizing him to distrain the tenant by his land. This obtained, he can seize the land into his own hand, but only by way of distress, only as a mere gage (simplex namium), and as a mode of coercing the tenant into the path of duty. He may take no fruits from the land, he may make no profit of it, he must ever be ready to give it up if the tenant will satisfy all just demands.⁴⁸³ Even this is possible only to the lord who is great enough to keep up an efficient court for his freeholders. In England the aboriginal weakness and rapid degeneration of the feudal tribunals, and the dominance of a royal court which does not love seignorial justice secure to the freeholding tenant a very tight grip on the land. At the end of Henry III.’s reign he is too well off. If he chooses to let the land “lie fresh,” to keep no distrainable chattels on it, his lord is powerless. An action must be borrowed from the canonists in order that he may be constrained to fulfil his engagements or be turned out of his tenement.⁴⁸⁴

However, in the thirteenth century the possibility, never very [p.336] remote, that the land would escheat, was, when coupled with the power of distress, a quite sufficient manifestation of the idea that the land, though it was the tenant’s, was also the lord’s. The tenant’s interest in it might at any time expire and leave the lord’s interest subsisting.

Survey of the various tenures.We are now in a position to foresee that of the four great free tenures one is destined to grow at the expense of the rest. For a moment it might be thought that the trenchant statute of 1290, the Quia emptores terrarum, would stereotype the tenures for ever. To some extent this is true in law but only to some extent. Even after the statute a new tenure might sometimes be created. Every feoffment made by a tenant in frankalmoin in favour of a layman would create a tenure between the donee and the donor’s lord which could not be frankalmoin, since the donee was a layman, and which was reckoned a tenure in socage; thus in a perfectly regular way socage would grow at the expense of frankalmoin.⁴⁸⁵ We have seen also that in the course of the thirteenth century many of the serjeanties were deliberately commuted for less archaic tenures, in some cases by the consent of both parties, still more often against the tenant’s will: he had put himself into the wrong by alienating without the king’s licence, and the king exercised the right of “arrenting the serjeanty.”⁴⁸⁶ But we will here speak of changes less definitely made. When once it was established that the little serjeanties gave the king no prerogative wardship, “petty serjeanty” came to be regarded as but “socage in effect.”⁴⁸⁷ A similar cause gave rise to the doctrine that tenure of a mesne lord is never tenure by serjeanty;⁴⁸⁸ the rights of a mesne lord to the wardship and marriage of his tenant by serjeanty seem to have become doubtful, and to have finally [p.337] disappeared, and by this time the term socage already covered so heterogeneous a mass of tenures that it could be easily stretched yet a little further so as to include what Bracton would certainly have called serjeanties.⁴⁸⁹ Again, there can be little doubt that a very large number of military tenures became tenures in socage, and this without anyone observing the change. In Bracton’s day the test of military tenure is the liability to scutage, and, as already said, the peasant or yeoman very often had to pay it; if he had not to pay it, this was because his lord had consented to bear the burden. In Edward I.’s day scutage was becoming, under his grandson it became, obsolete. There was nothing then in actual fact to mark off the services of the yeoman who was liable to pay scutage as well as to pay rent, from those of the yeoman who was free even in law from this never collected tax. The one was theoretically a military tenant, the other was not; in the one case the lord might have claimed wardship and marriage, in the other he could not; but then we have to observe, that, if the tenant held at a full or even a substantial rent, wardship and marriage would be unprofitable rights. The lord wanted rent-paying tenants; he did not want land thrown on his hands together with a troop of girls and boys with claims for food and clothing. Thus, scutage being extinct, wardships and marriages unprofitable, mere oblivion would do the rest; many a tenure which had once been, at least in name, a military tenure would become socage. Thus socage begins to swallow up the other tenures, and preparation is already made for the day when all, or practically all, tenants will hold by the once humble tenure of the sokemanni.

§ 12. Unfree Tenure

Freehold tenure.The tenures of which we have hitherto spoken are free tenures. To free tenure is opposed villein tenure, to the free tenement the villein tenement, to the freeholder (libere tenens) the tenant in villeinage. This is the contrast suggested by the word “free”; but the terms “free tenement” and “freeholder” are becoming the centre of technical learning. We may well find that a man holds land and that [p.338] there is no taint of villeinage or unfreedom in the case, and yet that he has no freehold and is not a freeholder. These terms have begun to imply that the tenant holds heritably, or for life. Perhaps we shall be truer to history if we state this doctrine in a negative form:— these terms imply that the tenant does not hold merely at the will of another, and that he does not hold for some definite space of time: a tenant at will is not a freeholder, a tenant for years is not a freeholder. Such tenancies as these are becoming common in every zone of the social system, and they imply no servility, nothing that is inconsistent with perfect freedom. Thus, for example, King John will provide for his foreign captains by giving them lands “for their support in our service so long as we shall think fit,” and in such a case this tenancy at will by a soldier is from some points of view the best representative of the beneficia and feoda of past centuries.⁴⁹⁰ But now-a-days such tenancies are sharply contrasted with feoda; the tenant has no fee and no free tenement. And so again we may see a great man taking lands for a term of years at a money rent; he has done nothing in derogation of his freedom; the rent may be trifling; still he is no freeholder.

Technical meaning of “freehold.”A full explanation of this phenomenon, that a man should hold land, and hold it not unfreely, and yet not hold it freely, cannot be given in this context since it would involve a discussion of the English theory of possession or seisin. But we must not fail to notice that the term “free tenement” has ever since Henry II.’s day implied possessory protection by the king’s court. This is of great moment. From our statement of the relation between the freehold tenant and his lord we have as yet omitted the element of jurisdiction. The existence of this element our law fully admitted and at one time it threatened to become of vital importance. It was law that the lord might hold a court of and for his tenants; it was law that if A was holding land of M and X desired to prove that he and not A ought to be M’ s tenant, M’ s court (if he held one) was the tribunal proper to decide upon the justice of this claim; only if M made default in justice, could X (perhaps after recourse to all M’ s superior lords) [p.339] bring his case before the king’s court. This principle of feudal justice is admitted, though its operation has been hampered and controlled; in particular, the king has given in his court a possessory remedy to every ejected freeholder. Every one who can say that he has been “disseised unjustly and without a judgment of his free tenement” shall be restored to his seisin by the king’s justices. Thus the term “free tenement” becomes the pivot of a whole system of remedies. Clearly they are denied to one who has been holding “unfreely,” who has been holding in villeinage; but a doctrine of possession now becomes necessary and has many problems before it. What if the ejected person was holding at the will of another? Perhaps it is natural to say that, albeit he occupied or “detained” the tenement, still he was not possessed of it. At any rate this was said. The tenant at will tenet nomine alieno; possidet cuius nomine possidetur; eject the tenant at will, you disseise (dispossess) not him, but his lord, and his lord has the remedy. And what of the tenant for years? The same was said. He holds on behalf of another; eject him, you disseise that other. Such was the doctrine of the twelfth century; but already before the middle of the thirteenth the lawyers had discovered that they had made a mistake, that the “termor” or tenant for years deserved possessory protection, and they invented a new action for him. The action however was new, and did not interfere with the older actions which protected the seisin of free tenement; it was too late to say that the termor had a free tenement or was a freeholder. This episode in our legal history had important consequences; it rules the terminology of our law even at the present day and hereafter we shall speak of it more at large: it is an episode in the history of private law. In the thirteenth century the main contrast suggested by the phrase “free tenement” was still the villein tenement, and tenure in villeinage is intimately connected with some of the main principles of public law; indeed from one point of view it may be regarded as a creature of the law of jurisdiction, of the law which establishes courts of justice and assigns to each of them its proper sphere.

Villeinage as tenure and as status.The name “villeinage” at once tells us that we are approaching a region in which the law of tenure is as a matter of fact intertwined with the law of personal status: “villeinage” is a tenure, it is also a status. On the one hand, the tenant in villeinage is normally a villein; the unfree tenements are held by unfreemen; on the other [p.340] hand, the villein usually has a villein tenement; the unfreeman is an unfree tenant. Then a gain, the villanus gets his name from the villa, and this may well lead us to expect that his condition cannot be adequately described if we isolate him from his fellows; he is a member of a community, a villein community. The law of tenure, the law of status, the law which regulates the communal life of vills or townships are knotted together. Still the knot may be unravelled. It is very possible, as Bracton often assures us, for a freeman to hold in villeinage, and thus we may speak of villein tenure as something distinct from villein status. Again, as we shall hereafter see, the communal element which undoubtedly exists in villeinage, is much neglected by the king’s courts, and is rather of social and economic than of legal importance.

Villein tenure.We may suppose therefore that the tenant in villeinage is a freeman. What then are the characteristics of his tenure?⁴⁹¹ Now in the first place we may notice that it is not protected in the king’s courts. For a moment perhaps there was some little doubt about this,Unprotected by the king’s courts. some chance that Pateshull and Raleigh would forestall by two long centuries the exploits ascribed to Brian and Danby, and would protect the predecessor of the copyholder even against his lord.⁴⁹² This would have been a bold stroke. The ready remedy for the ejected freeholder laid stress on the fact that he had been disseised of his “free” tenement, and, however free the tenant in villeinage might be, his tenement was unfree. A quite new remedy would have been necessary for his protection; the opportunity for its invention was lost, and did not recur until the middle ages [p.341] were expiring.⁴⁹³ It was law then, that if the tenant in villeinage was ejected, either by his lord or by a third person, the king’s court would not restore him to the land, nor would it give him damages against his lord in respect of the ejectment. He held the land nomine alieno, on his lord’s behalf; if a third person ejected him, the lord was disseised. Before the end of the thirteenth century, the king’s courts were beginning to state their doctrine in a more positive shape:—the tenant in villeinage is in our eyes a tenant at will of the lord.⁴⁹⁴

Want of remedy and want of right.The shade of meaning which such words bear at any given moment is hard to catch, for this depends on the relation between the king’s courts and other courts. At a time when the feudal courts have become insignificant, denial of remedy in the king’s court will be equivalent to a denial of right, and to say that the tenant in villeinage is deemed by the king’s court to hold at his lord’s will is in effect to say that the lord will do nothing illegal in ejecting him. At an earlier time the royal tribunal was but one among many organs of the law, and the cause for our wonder should be that it has undertaken to protect in his possession every one who holds freely, not that it has stopped at this point and denied protection to those who, albeit freemen, are doing what are deemed villein services. We have but to look abroad to see this. By its care for every freeholder, though he were but a socage tenant with many lords above him, our king’s court would gradually propagate the notion that those whom it left uncared for were rightless. But this would be an affair of time. Even in the thirteenth century, the freeholder could not always bring a proprietary action before the royal tribunal without the help of some legal fiction, and in Bracton’s day men had not yet forgotten that the royal remedies which were in daily use were new indulgences conceded by the prince to his people.⁴⁹⁵

Protection of villein tenure by manorial courts.As a matter of fact, tenure in villeinage is protected, and if we [p.342] choose to say that it is protected by “positive morality” rather than by “law properly so called,” we are bound to add that it is protected by a morality which keeps a court, which uses legal forms, which is conceived as law, or as something akin to law.⁴⁹⁶ The lord has a court; in that court the tenant in villeinage, even though he be personally unfree, appears as no mere tenant at will, but as holding permanently, often heritably, on fairly definite terms. He is a customary tenant, custumarius, consuetudinarius; he holds according to the custom of the manor. Were we Germans, we might say that he holds under Hofrecht, the law of the manor, though his rights are not recognized by Landrecht, the general law of the realm. This we cannot say; the manorial custom very rarely, if ever, dignifies itself with the name of law; but still it is a custom which has been and ought to be enforced by a court, enforced if need be by compulsory processes which will eject the wrongful in favour of the rightful occupant. The tenant in villeinage does not scruple to say that he is seised of the land de iure “according to the custom of the manor,”⁴⁹⁷ though his lord may be seised of it according to the law of the king’s courts. Such evidence as we have goes to show that, when his lord was not concerned, he was well enough protected in his holding. The rolls of manorial courts bear witness to a great deal of litigation concerning the villein tenements; it seems to be conducted with strict regularity; the procedure does not err on the side of formlessness; it is rigid, it is captious; the court is no court of equity which can overlook a pleader’s blunder and do natural justice; it administers custom. No doubt there are cash transactions between the lord and the litigants; the lord has procedural advantages for sale; but then so has the king. There is nothing disgraceful, nothing illegal, in buying the right to have an inquest, a good inquest, nor even in promising an augmented price if the verdict be favourable. Then as to the case between lord and tenant, the tenant cannot sue the lord in the lord’s court; the tenant in villeinage ejected by the lord has no remedy anywhere. But is this, we may [p.343] ask, a denial of legal right? The king disseises the Earl of Gloucester; the earl has no remedy, no remedy anywhere; yet we do not deny that the honour of Gloucester is the earl’s by law or that in disseising him the king will break the law.

Evidence of the “extents.”A good proof that the lords in general felt themselves bound more or less conclusively by the terms of the customary tenures is to be found in the care they took that those terms should be recorded. From time to time an “extent” was made of the manor. A jury of tenants, often of unfreemen, was sworn to set forth the particulars of each tenancy and its verdict condescended to the smallest details. Such extents were made in the interest of the lords, who were anxious that all due services should be done; but they imply that other and greater services are not due, and that the customary tenants, even though they be unfreemen, owe these services for their tenements, no less and no more. Statements to the effect that the tenants are not bound to do services of a particular kind are not very uncommon.

Attempt to define villein tenure.As characteristics of villein tenure we have therefore these two features:—it is not protected by the king’s courts; in general it is protected by another court, the court of the lord, though even there it is not protected against the lord. Still as a matter of legal theory we cannot regard these features as the essence of the tenure. We should invert the order of logic were we to say that this tenure is villein because the king’s justices treat it as a mere tenure at will; rather they treat it as a mere tenure at will because it is a villein, an unfree, tenure. We must look therefore in this as in other cases to the services which the tenant performs, if we are to define the nature of his tenure. He holds in villeinage because he performs villein services.

The manorial arrangement.A brief digression into a domain which belongs rather to economic than to legal history here becomes inevitable. The phenomena of medieval agriculture are now attracting the attention that they deserve: here we are only concerned with them in so far as some knowledge of them must be presupposed by any exposition of the law of the thirteenth century.⁴⁹⁸ Postponing until a later time any debate as to whether the term manor bore a technical meaning, [p.344] we observe that this term is constantly used to describe a proprietary unit of common occurrence:—the well-to-do landholder holds a manor or many manors. Now speaking very generally we may say that a man who holds a manor has in the first place a house or homestead which is occupied by himself, his bailiffs or servants. Along with this he holds cultivable land, which is in the fullest sense (so far as feudal theory permits) his own; it is his demesne land. Then also, as part of the same complex of rights, he holds land which is holden of him by tenants, some of whom, it may be, are freeholders, holding in socage or by military service, while the remainder of them, usually the large majority of them, hold in villeinage, by a merely customary tenure. In the terms used to describe these various lands we notice a certain instructive ambiguity. The land that the lord himself occupies and of which he takes the fruits he indubitably holds “in demesne”; the land holden of him by his freehold tenants he indubitably does not hold “in demesne”; his freehold tenants hold it in demesne, unless indeed, as may well be the case, they have yet other freeholders below them. But as to the lands holden of him by villein tenure, the use of words seems to fluctuate; at one moment he is said to hold and be seised of them in demesne, at the next they are sharply distinguished from his demesne lands, that term being reserved for those portions of the soil in which no tenant free or villein has any rights. In short, language reflects the dual nature of tenure in villeinage; it is tenure and yet it is not tenure. The king’s courts, giving no protection to the tenant, say that the lord is seised in demesne; but the manorial custom must distinguish between the lands holden in villeinage and those lands which are occupied by the lord and which in a narrower sense of the word are his demesne.⁴⁹⁹

[p.345]The field system. We have usually therefore in the manor lands of three kinds, (1) the demesne strictly so called, (2) the land of the lord’s freehold tenants, (3) the villenagium, the land holden of the lord by villein or customary tenure. Now in the common case all these lands are bound together into a single whole by two economic bonds. In the first place, the demesne lands are cultivated wholly or in part by the labour of the tenants of the other lands, labour which they are bound to supply by reason of their tenure. A little labour in the way of ploughing and reaping is got out of the freehold tenants; much labour of many various kinds is obtained from the tenants in villeinage, so much in many cases that the lord has but small, if any, need to hire labourers. Then in the second place, these various tenements lie intermingled; neither the lord’s demesne nor the tenant’s tenement can be surrounded by one ring-fence. The lord has his house and homestead; each tenant has his house with more or less curtilage surrounding it; but the arable portions of the demesne and of the various other tenements lie mixed up together in the great open fields. There will be two or three or perhaps more great fields, and each tenement will consist of a number of small strips, of an acre or half-acre apiece, dissipated about in each of these fields.⁵⁰⁰ These fields are subjected to a common course of agriculture, a two-field system or a three-field system, so that a whole field will lie idle at one time, or be sown with winter seed or, as the case may be, with spring seed. After harvest and until the time for tilling comes, the lord and the tenants turn their beasts to graze over the whole field.

The virgates.Then we further notice that the various tenements, at least those held in villeinage, are supposed to be of equal extent and of equal value, or rather to fall into a few classes, the members of each class being equal among themselves. Thus it is usual to find a number [p.346] of tenants in villeinage each of whom is said to hold a virgate or yard of land. Each of them has his house and the same number of strips of arable land; each of them does precisely the same service to his lord. Then there may appear a class of half-virgaters, each of whom does about half what is done by a virgater; and there may be classes which have smaller tenements but which yet have some arable land. Then, most likely, there will be a class of cottagers without any arable; but the cottage and croft of one of them will be regarded as equal to the cottage and croft of another and will provide the lord with the same services. And we sometimes seem to see that the distribution of the arable strips is so arranged as to equalize the value of the various tenements. All the virgates are to be equal in value as well as equal in acreage so far as is possible. One virgater must not have more than his share of the best land. The strips have been distributed with some regularity, so that a strip of B’ s virgate will always have a strip of A’ s to the right and a strip of C’ s to the left of it. Then again, the manor will probably comprise meadow land and pasture land. Each virgate may have a piece of meadow annexed to it, the meadow being treated as an appurtenance of the arable land; or again, some of the meadows may be divided each year by lot between the various tenants, and the lord may have certain strips thereof in one year and other strips in another year;⁵⁰¹ but, when the grass has been mown, all the strips will be thrown open to the cattle of the lord and his tenants. There is also land permanently devoted to pasturage; a right to turn out beasts upon it is commonly annexed to every tenement or to every considerable tenement. Lastly, we must just notice that in the lord’s court the manor has an organ capable of regulating all these matters, capable for example of deciding how many beasts each tenement may send to the pasture, and, when the rights of the freehold tenants are not concerned, the decrees and judgments of this court will be binding, for the king’s courts will give no help to those who hold in villeinage.

[p.348]Villein services. Now speaking generally we may say that the services which the tenant in villeinage owes to his lord consist chiefly of the duty of cultivating the lord’s demesne. Before the thirteenth century is over we may indeed find numerous cases in which the payment of a money rent forms a substantial part of his service and he is hardly bound to do more labour than is exacted from many of the freeholders, some ploughing and some reaping. It is very possible that there are some classes of tenants now reckoned to hold in villeinage, whose predecessors were in this same position at a remote time; they are gavel-manni, men who pay gafol, or they are censuarii, and such their forefathers may have been all along.⁵⁰² To suppose that in all cases the system of rents paid in money or in produce has grown out of a system of labour services is to make an unverified assumption. On the other hand, in very many cases we can see that the money rent is new. We may see the process of commutation in all its various stages, from the stage in which the lord is beginning to take a penny or a halfpenny instead of each “work” that in that particular year he does not happen to want, through the stage in which he habitually takes each year the same sum in respect of the same number of works but has expressly reserved to himself the power of exacting the works in kind, to the ultimate stage in which there is a distinct understanding that the tenant is to pay rent instead of doing work. But we may for a moment treat as typical the cases in which the tenant hardly pays anything. Of such cases there are plenty. The tenant may pay some small sums, but these are not regarded as the rent of his tenement. They bear English names; sometimes they seem to have their origin in the lord’s jurisdictional powers rather than in his rights as a landowner, as when we read of tithingpenny, wardpenny, witepenny; sometimes they look like a return made to the lord, not for the tenement itself, but for rights over the wastes and waters, as when we read of fishsilver, woodsilver, sedgesilver. But in the main the tenant must work for his tenement.

A typical case of villein services.Now the labour that he has to do is often minutely defined by [p.349] the manorial custom and described in the manorial “extent.” Let us take one out of a thousand examples. In the Abbot of Ramsey’s manor of Stukeley in Huntingdonshire the services of a virgater are these:⁵⁰³—From the 29th of September until the 29th of June he must work two days a week, to wit on Monday and Wednesday; and on Friday he must plough with all the beasts of his team; but he has a holiday for a fortnight at Christmas and for a week at Easter and at Whitsuntide. If one of the Fridays on which he ought to plough is a festival or if the weather is bad, he must do the ploughing on some other day. Between the 29th of September and the 11th of November he must also plough and harrow half an acre for wheat, and for sowing that half-acre he must give of his own seed the eighth part of a quarter: whether that quantity be more or less than is necessary for sowing the half-acre he must give that quantity, no more, no less: and on account of this seed he is excused one day’s work. At Christmas time he must make two quarters of malt and for each quarter he is excused one day’s work. At Christmas he shall give three hens and a cock or four pence and at Easter ten eggs. He must also do six carryings (averagia) in the year within the county between the 29th of June and the end of harvest at whatever time the bailiff shall choose, or, if the lord pleases, he shall between the 29th of June and the 29th of September work five days a week, working the whole day at whatever work is set him, besides carrying corn, for he shall carry but four cartloads of corn for a day’s work. If at harvest time the lord shall have two or three “boon works” (precationes), he shall come to them with all the able-bodied members of his family save his wife, so that he must send at least three men to the work. He pays sheriff’s aid, hundredpenny and wardpenny, namely 6¼ d.

Week work and boon days.Now the main features of this arrangement we find repeated in countless instances. The tenant has to do “week work,” as it has been called: to work two or three days in every week during the greater part of the year, four or five during the busy summer months. Then at harvest time there are also some “boon days” (precariae, precationes); at the lord’s petition or boon the tenant must bring all his hands to reap and carry the crops and on these days [p.350] the lord often has to supply food; at Stukeley it is bread, beer and cheese on the first day, meat on the second, herrings on the third. But matters are yet more minutely fixed. Our Stukeley tenant has to “work” so many days a week; the choice of work rests with the lord, but custom has fixed the amount that shall be accounted a day’s work. For instance on the neighbouring manor of Warboys gathering and carrying three bundles of thorns are regarded as a day’s work.⁵⁰⁴ At Stukeley if the tenant has to fell timber, the day’s work is over at noon, unless the lord provides dinner, and then the work lasts all day. Sometimes it is remarked that a task which counts as a day’s work can really be done in half a day.⁵⁰⁵ The exact distance that he must go with his lord’s wagons in order that he may claim to have performed an averagium is well known, and, when the lord is bound to supply food or drink, the quantity and quality thereof are determined. On the Ramsey manors a sick tenant will be excused a whole year’s work if his illness lasts so long; after the year he must get his work done for him as best he may. A half-virgater will do proportionately less work, a cottager still less; thus at Stukeley the cottager works on Mondays throughout the year and on Fridays also in harvest time.

Merchet and tallage.There is more to be said. Our Stukeley virgater pays “merchet” as best he may, that is to say, if he wishes to give his daughter in marriage he must pay money to the lord and the amount that he has to pay is not fixed. If he has a foal or calf born of his own mare or cow, he must not sell it without the lord’s leave. If he has an oak, ash or pear-tree growing in his court, he must not fell it, except for the repair of his house, without the lord’s leave. When he dies his widow shall pay a heriot of five shillings and be quit of work for thirty days. These are common features, and the merchet is of peculiar importance, as will be seen hereafter. Sometimes it is only paid if the girl is married outside the vill; sometimes the amount is fixed. And so as to selling beasts; occasionally the lord’s right is but a right of preemption. And then in many cases the villein tenants are liable to be tallaged, sometimes once a year, sometimes twice in seven years; sometimes the amount of this tax is defined, sometimes [p.351] they can be “tallaged high and low” (de haut en bas). Often they are bound to “suit of mill,” that is to say, they must not grind their corn elsewhere than at the lord’s mill. About all these matters we sometimes find rules which set certain definite limits to the tenant’s duty and the lord’s right.⁵⁰⁶

What is the essence of villein tenure.Such were some of the commonest services due from the holder of a villein tenement. As yet, however, we have attained to nothing that can be called a definition of the tenure. To say that it is a tenure defined by custom but not protected by the king’s courts is no satisfactory definition, for this, as already said, is to mistake the consequence for the cause. Now Bracton constantly assumes that everyone will understand him when he speaks of villein services, but he never undertakes to tell us precisely what it is that makes them villein, and, when we turn to the manorial extents, we not unfrequently meet with tenures that we know not how to classify. Apart from the tenants who certainly are freeholders and the tenants who certainly hold in villeinage, we see here and there a few men whose position seems very doubtful; we do not like to predict either that they will or that they will not find protection in the royal courts. We have to remember that the test which in later days will serve to mark off freehold from copyhold tenure is as yet inapplicable. No one as yet holds land “by copy of court roll”; the lords are only just beginning to keep court rolls and it is long ere the court roll becomes a register of title. If alienations and descents are entered upon it, this is done merely to show that the steward has received or has yet to collect a fine or a heriot, and the terms on which a new tenant takes land are seldom mentioned. If from a modern conveyance of a copyhold tenement we abstract the copy of the court roll and even the court roll itself, we still have left the intermediation of the lord between the vendor and the purchaser: the land is supposed to pass through the lord’s hand. But when dealing [p.352] with the thirteenth, to say nothing of the twelfth, century, we cannot make the lord’s intervention a proof of villein tenure. We may well find the conveyance of a freehold taking in all essentials the form of “surrender and admittance”; the old tenant yields up the land to the lord, the lord gives it to the new tenant; the transaction takes place in court; the symbolical rod is employed; no charter is necessary.⁵⁰⁷ Indeed when there was to be no subinfeudation but a substitution of a new for an old tenant, we may well be surprised that this could ever be effected without a double conveyance. Moreover if we say that the lord can prevent the alienation of villein, but cannot prevent the alienation of free tenements we still have not solved the question; to say that a tenement is villein because it cannot be alienated without the lord’s consent is to put the cart before the horse.

“The will of the lord.”Nor again can we find the solution in the phrase “to hold at the will of the lord.” If for a moment we take this phrase merely to denote that the tenure is unprotected by the king’s court, we are brought once more to the fruitless proposition that it is unprotected because it is unprotected. If, on the other hand, we take the phrase to imply that there is no court which protects the tenure, or that the lord can at any moment eject the tenant without breach of any custom, then, to say the least, the great mass of villein tenures will escape from our definition. Tenures which really are tenures “at will,” unprotected by any custom, are to be found, and that too in high places, but then they are in general carefully distinguished from the villein tenures. In the extents and manorial rolls of the thirteenth century it is rare to find that the tenants in villeinage are said to hold at the will of the lord.⁵⁰⁸ Still when we turn, as we now must, to find the element in villein services which makes them villein, this phrase “at the lord’s will” must again meet us.

Villeinage and labour.That a tenure which compels to agricultural labour is unfree, this [p.353] we certainly cannot say. The philology of the time made ploughing service the characteristic feature of socage,⁵⁰⁹ and often enough a freeholder had to give his aid in ploughing and reaping his lord’s demesne; nor can we say for certain that he could always do his work by deputy, for the duty cast upon him was sometimes such as could not well be delegated, in particular that of riding after the labourers “with his rod” and keeping them up to their work.⁵¹⁰ There is nothing servile in having to do such a duty in person. In general, no doubt, the freeholder only aids his lord’s agriculture during a few weeks in the year; he helps at the “boon works” but does no “week work”; still it is difficult to make the distinction between freedom and unfreedom turn upon the mere amount of work that has to be done. If there is no villeinage in labouring ten days in the year why should there be any villeinage in labouring three days a week? On the whole our guides direct us not to the character, nor to the amount of the work, but to its certainty or uncertainty.⁵¹¹ The typical tenant in villeinage does not know in the evening what he will have to do in the morning.⁵¹² Now this, when properly understood, is very generally true of the tenants who are bound to do much labour, to do “week work.” They know a great deal about the amount of work that they will have to do in each year, in each week, on each day; they know, for example, that the custom exacts from them three and no more “works” in every week, that Tuesday is not a work day, that if they are set to ditch they must ditch so many perches before the “work” will be accomplished, that to drive a cart to one place is “one work,” to another place “two works”; they know whether when set to thresh they can stop at nones or must go on to vespers. Still there is a large element of real uncertainty; the lord’s will counts for much; when they go to bed on Sunday night they do not know what Monday’s work will be: it may be threshing, ditching, carrying; they cannot tell. This seems the point that is seized [p.354] by law and that general opinion of which law is the exponent: any considerable uncertainty as to the amount or the kind of the agricultural services makes the tenure unfree. The tenure is unfree, not because the tenant “holds at the will of the lord,” in the sense of being removable at a moment’s notice, but because his services, though in many respects minutely defined by custom, cannot be altogether defined without frequent reference to the lord’s will. This doctrine has good sense in it. The man who on going to bed knows that he must spend the morrow in working for his lord and does not know to what kind of work he may be put, though he may be legally a freeman, free to fling up his tenement and go away, is in fact for the time being bound by his tenure to live the same life that is led by the great mass of unfreemen. Custom sets many limits to his labours; custom sets many limits to theirs; the idea of abandoning his home never enters his head; the lord’s will plays a large part in shaping his life.

Definition of villein services.This then seems to have been the test usually applied by the king’s court. If the labour services are “uncertain,” the tenure is unfree; and it is a test which condemns as unfree the great bulk of the tenures which obliged men to perform any considerable amount of agricultural labour for their lord, because, however minutely some particulars of those services may be defined, there is generally a spacious room left for the play of the lord’s will. Thus the test roughly coincides with another:—labour service is not necessarily unfree, but a service which consists of much labour, of labour to be done all the year round, is almost of necessity unfree; for almost of necessity the tenant will be bound to obey, within wide limits, whatever commands the lord or the lord’s bailiff may give him. Thus to hold land by “fork and flail,” by work done day by day, or week by week on the lord’s demesne, is to hold in villeinage.⁵¹³

Tests of villein tenure.Other tests are in use. Any service which stamps the tenant as an unfreeman, stamps his tenure as unfree; and in common opinion such services there are, notably the merchetum. Now among the thousands of entries in English documents relating to this payment,The merchet. it would we believe be utterly impossible to find one which gave any [p.355] sanction to the tales of a ius primae noctis.⁵¹⁴ The context in which this duty is usually mentioned explains at least one of the reasons which underlie it. The tenant may not give his daughter (in some cases his son or daughter) in marriage—at least not outside the manor,—and he may not have his son ordained, and he may not sell horse or ox, without the lord’s leave:—the stock on the tenement is not to be diminished. No doubt a subjection to this restraint was regarded as very base, and sometimes it is described in vigorous words which express a freeman’s loathing for servility:—“he must buy, he must make ransom for, his flesh and blood.” This is intelligible; a payment for leave to give one’s daughter in marriage or for leave to send one’s son to school, naturally suggests bondage, personal bondage, bondage which is in one’s blood. It is constantly used as a test of personal serfage and a fortiori of unfree tenure. Bracton will just allow that the man who has to pay a merchet need not be a bondman; it may in a given case be an incident of unfree tenure rather than of personal servility. However, though this test was commonly applied, we cannot say that it was conclusive even of the unfreedom of the tenure. In Northumberland there certainly were lords of manors, lords of entire vills, who paid merchet,⁵¹⁵ and then we have to remember that in Scotland, at least according to the Regiam Maiestatem, every woman, were she noble, were she serf, paid “merchet,” paid it in kine (an earl’s daughter paid twelve cows),⁵¹⁶ while in Wales a similar payment was made on the marriage of every girl.⁵¹⁷ Very possibly several different payments originating at different times, perhaps among different races, and expressive of different ideas have been fused together; but in England the merchet is generally regarded as a base payment, a mark, though not a conclusive mark, of personal unfreedom.⁵¹⁸

Other tests of villein tenure.Other tests are at times suggested. The duty of serving as the [p.356] lord’s reeve whenever the lord pleases, the liability to be tallaged “high and low,” these also are treated as implying personal bondage.⁵¹⁹ If the tenement descends to the youngest son instead of to the eldest son or to all the sons, the inference is sometimes drawn that it is not free. On the whole, however, our books constantly bring us back to the “uncertainty” of the service as the best criterion of villein tenure. Certainty and uncertainty, however, are, as we have seen, matters of degree. In few, if any, cases is there no custom setting bounds to the tenant’s duty of working for his lord; in most cases many bounds are set; the number of days in every week which he must spend on the demesne is ascertained; often the amount of any given kind of labour that will pass for a day’s work is determined; but yet there is much uncertainty, for the tenant knows not in the evening whether in the morning he will be kept working in the fields or sent a long journey with a cart. We need not be surprised therefore if in the thirteenth century “freehold” and “villeinhold” are already becoming technical ideas, matters of law; jurors who [p.357] can describe the services are unwilling to say whether they are free or unfree, but will leave this question for the justices.⁵²⁰ And next we have to note that though labour service, indefinite or but partially defined labour service, seems to be the original essence of villein tenure, this does not remain so for long. When once it has been established that a tenement is unfree, that tenement will not become free, at least in the eyes of lawyers, even though the services are modified or transformed. Without any definite agreement, a lord begins to take money instead of exacting labour, and gradually it becomes the custom that he shall take money, and a precisely fixed sum of money, in lieu of all the week-work. This change does not give the tenant a freehold, a right in the land which the king’s courts will protect; something far more definite would be required for that purpose, an enfranchisement, a feoffment. Thus it falls out that a tenant who according to the custom of the manor pays a money rent and does no more labour for his lord than is owed by many a freeholder, may still be no freeholder but a tenant in villeinage; he still is protected only by custom and in the view of the royal justices is but a tenant at will. Then gradually what has been called “the conveyancing test” becomes applicable. Dealings with villein tenements are set forth upon the rolls of the lord’s court; the villein tenement is conceived to be holden “by roll of court,” or even “by copy of court roll,” and the mode of conveyance serves to mark off the most beneficial of villein-holds from the most onerous of freeholds; the one passes by “surrender and admittance,” the other by [p.358] “feoffment.” In Henry III.’s time this process which secured for the tenant in villeinage a written, a registered title, and gave him the name of “copyholder,” was but beginning, and it is possible that in some cases the lord by taking money instead of labour did as a matter of fact suffer his tenants to become freeholders; but probably he was in general careful enough to prevent this, for him undesirable, consequence, by retaining and enforcing a right to some distinctively servile dues. But our definition of villein tenure must be wide enough to include cases in which there has been a commutation of labour service into rent, and on the whole we may do well in saying that villein tenure is the tenure of one who owes to his lord in respect of his tenement “uncertain” labour services, or who (by himself or his predecessors) has owed such services in the past, or who is subject to distinctively servile burdens such as merchet, arbitrary tallage, or the duty of serving as reeve. This we believe to be the main idea; but we must receive it subject to two remarks, namely, that, as so often said, “uncertainty” is a matter of degree, and that in some cases a tenure which all along had been tenure at a money rent may have been brought within the sphere of villeinage by some untrue, or at all events unverified, theory as to its past history. Here as elsewhere law has done its work of classification by means of types rather than by means of definitions.⁵²¹

[p.359]Binding force of manorial custom. To fix in precise words the degree of binding force that the lords in their thoughts and their deeds ascribed to the manorial custom would be impossible. Generalizations about the moral sentiments of a great and heterogeneous class of men are apt to be fallacious, and, when a lord pays respect to a custom which cannot be enforced against him by any compulsory process, it will be hard for us to choose between the many possible motives by which he may have been urged; provident self-interest, a desire for a quiet life, humane fellow-feeling for his dependants, besides a respect for the custom as a custom may all have pulled one way. There is some evidence to show that the mere reverence for the custom as a custom grew weaker during the thirteenth century. When early in that age the king’s justices were considering whether they would not protect the villein tenant against his lord,⁵²² they must have felt that the custom was very like law. On the other hand, when they had definitely abandoned this enterprise, the lords must have been more and more tempted to regard the custom as but a revocable expression [p.359] of their own wills.⁵²³ Certainly the lawyers began to use language which must have suggested to the lords that they might eject their tenants whenever they pleased.⁵²⁴ On the whole, however, the two clauses of the formula which is in after times to describe the position of the copyholder, grew into definiteness side by side:—the tenant in villeinage holds “at the will of the lord,” but “according to the custom of the manor.”

Treatment of villein tenure in practice.Our task is the more difficult because fully developed copyhold tenure, even as it exists in the nineteenth century, allows that there are many acts and defaults by which a tenant may forfeit his tenement. Now a strict definition of these causes of forfeiture only appears late in the day; little of the kind is to be found in the “extents” of the thirteenth century. Seldom, if ever, were the lords brought to acknowledge that the causes of forfeiture were definable. Many admissions against their own interests the “extents” of their manors may contain; they suffer it to be recorded that “a day’s work” ends at noon, that in return for some works they must provide food, [p.360] even that the work is not worth the food that has to be provided; but they do not admit that for certain causes and for certain causes only may they take the tenements into their own hands.

Ejectment of villeins.As a matter of fact, it is seldom of an actual ejectment that the peasant has to complain. If he makes default in his services, he in general suffers no more than a small amercement; seldom does it exceed six pence. Even if he commits waste, if, for example, he lets his house go out of repair, he generally has full warning and an opportunity for amending his conduct before the lord takes the extreme measure of ejecting him. An extreme measure it was, for tenants were valuable; then as now “it paid to be a good landlord.” Two motives, and perhaps two only, might make a lord wish to clear the cultivators from his land; he might wish to fill their place with beasts of the chase or with monks. Happily for the peasantry, rights of sporting were franchises which had to be purchased from the king, while we may hope that the pious founder dealt generously with his tenants. One of the stories which best illustrates the nature of their customary rights tells how when Henry II. was founding the Carthusian priory of Witham in Somersetshire he cleared the villeins off the land, but gave each of them the choice of becoming free or receiving a tenement in any royal manor that he might choose. But the holy Hugh was not content with this, he made Henry pay compensation to the villeins for their houses; nor did he stop there; they must be allowed to carry away the materials, though for these they have already received a money equivalent.⁵²⁵ At an earlier date an Earl of Lincoln, clearing the ground for Revesby Abbey, had given the dispossessed rustics a choice between freedom and other tenements.⁵²⁶

Increased services.What the tenant in villeinage had to fear was not so much arbitrary ejectment as an attempt to raise his rent, or to exact from him new and degrading services which would make him an unfreeman. We cannot altogether acquit the lords of such attempts. The fact that the services described in the later “extents” seem heavier than those described in the earlier, the fact that the debasing merchetum seems to become far commoner as time goes on, these facts [p.361] are not very cogent, for the extents become more minute and particular and we seldom can be quite sure that what is expressed in the later documents was not implied in the earlier.⁵²⁷ We cannot so easily dispose of the evidence that late in the thirteenth century large masses of the tenants believed and sought to prove that their lords had broken the custom and imposed new burdens upon them. They sought to show in case after case that they were living on the ancient demesne of the crown, and that therefore they were protected against any increase of services. Generally they failed; Domesday Book was produced and proved that they had no right to claim the king’s help. The fact remains that they had hoped to prove that the lords were breaking the custom. To this we must add that in many of these cases the lord was a religious house.⁵²⁸ Now there is plenty of evidence that of all landlords the religious houses were the most severe—not the most oppressive, but the most tenacious of their rights; they were bent on the maintenance of pure villein tenure and personal villeinage. The immortal but soulless corporation with her wealth of accurate records would yield no inch, would enfranchise no serf, would enfranchise no tenement. In practice the secular lord was more humane, because he was more human, because he was careless, because he wanted ready money, because he would die. Still it is to the professed in religion that we may fairly look for a high theory of justice, and when we find that it is against them that the peasants make their loudest complaints, we may be pretty sure that the religion of the time saw nothing very wrong in the proceedings of a lord who without any cruelty tried to get the most that he could out of his villein tenements. We may well doubt whether the best morality of the time required him to regard the villein services as fixed for good and all, or as variable only by means of some formal agreement such as never could have been made had but one tenant refused his consent. The process of commutation, [p.362] which in the end was to give the copyholder his valuable rights, was set going by the lord’s will; he chose to exact money instead of labour, and, if he took but a fair sum, he was not to be condemned. We cannot contend therefore that the lord’s will was fettered by rigid custom, or that any man conceived that it ought to be so fettered. On the other hand, as we shall soon see, there is in the king’s treatment of his peasants, the men of “the ancient demesne,” a convincing proof that the just landlord was expected to pay heed to the custom and not to break through it save for good cause.

Heritable rights in villein tenements.Had the tenant in villeinage heritable rights? Of rights recognized by the king’s courts we have not to speak; but the manorial court frequently admitted that his rights were heritable, at least as against all but the lord. Often a claimant comes into court and declares in set terms how he is the rightful heir and how some one else is wrongfully withholding his inheritance. Thus, for example: “John of Bagmere demands against John son of Walter of Wells one virgate of land with the appurtenances in the vill of Combe as his right according to the custom of the manor, and therefore as his right, for he says that one John of Bagmere his grandfather died seised thereof as his right according to the custom of the manor, and from that John the right descended according to the custom of the manor to his son William, the demandant’s father, whose heir the demandant is according to the custom of the manor.”⁵²⁹ This is just the formula which a man would use in the king’s court were he claiming a freehold inheritance, save that at every turn reference is made to the custom of the manor; according to the custom inheritance is a matter of strict right as against all but the lord. The documents are much more chary of admitting that as against the lord the heir has any rights. On the death of a tenant a heriot becomes due, usually the best beast or best chattel or a fixed sum of money; but this is regarded less as a “relief” to be paid by an heir than as a payment due out of the dead man’s estate, and if an “extent” speaks of the heir at all, this is in general to tell us that he must “do the [p.363] lord’s will,” or must “redeem the land at the will of the lord.”⁵³⁰ The court rolls seem to show that as a matter of fact heirs were admitted on fairly easy terms, the lord taking an additional year’s rent or the like, and the pleadings in which hereditary right is asserted against others than the lord testify to a strong feeling that the villein tenements are heritable; still as against the lord the heir has rather a claim to inherit than an inheritance. The records of this age but rarely say that a tenant is admitted “to hold to him and his heirs,” generally they say no more than that the lord has given the land to A. B. When, as would generally be the case, the tenants were personally unfree, the lord would have run some danger in talking about their heirs, for lawyers were saying that the serf could have no heir but his lord and drawing thence the deduction that a serf might be enfranchised by unguarded words.⁵³¹ This may be the reason why early court rolls, when they do expressly allow that a new tenant is to have transmissible rights, do so by speaking not of his heirs but of his sequela. This is not a pretty word to use of a man, for it is the word that one uses of pigs and the like; the tenant is to hold to him and his brood, his litter.⁵³² We shall better understand the nature of the heir’s right against the lord, a right to inherit if the lord pleases, if we are persuaded that in many a case the inheritance was not very valuable. Certainly in the fourteenth century there were lords who would but too gladly have found heirs to take up the villein tenements at the accustomed services.⁵³³ We may hardly argue thence to an earlier time; but no doubt the services were often as good a return for the land as could have been obtained. A strong man with strong sons might do them and thrive; the weak and needy could not, and were removed with the full approbation of the other men of the vill, whose burdens had [p.364] been increased by the impotence of their fellow-labourer.

Unity of the tenement.Further the lord took care that the tenements should not be broken up among co-heirs. Often the tenant’s widow enjoyed the whole tenement during her life or until she married a second time without the lord’s leave.⁵³⁴ Often the customary rule of inheritance gave the land to the dead man’s youngest son, and this was accounted a mark of villein tenure.⁵³⁵ Perhaps in some cases the family kept together, and the son who was admitted as tenant was regarded as representing his brothers; but this must have been a matter of morals rather than of law or of enforceable custom. By one means or another the unity of the tenement was preserved and it is rare to find it held by a party of co-heirs. Exceptions there doubtless were, but on the evidence afforded by the “extents” and the Hundred Rolls it is hard to believe that in the thirteenth century the lords held themselves bound by custom to admit the heir on his tendering a fixed fine.⁵³⁶ “Precarious inheritance,” if we may use such a term, was of common occurrence in all zones of society. The baronial relief had but lately been determined; the tenant by serjeanty still relieved his land “at the will of the lord.” We know too that in later days the heir of a copyhold tenant very often had to pay an “arbitrary” fine, while in other cases lords have succeeded in proving that the successors of the villein tenants were but tenants for life.⁵³⁷

[p.365]Alienation of villein tenements. Of the alienation, of the sale and purchase, of villein tenements we read little. We may be sure that this could not be effected without the lord’s leave; the seller came into the lord’s court and surrendered the land into the steward’s hand, who thereupon admitted the new tenant and gave him seisin. The new tenant paid a fine; often it would be one year’s value of the tenement. But in this region there seems to have been but little custom, and we may be fairly certain that the lords of this period did not allow that new tenants could be forced upon them against their will. If the tenant attempted to alienate the tenement without the lord’s leave, this was a cause of forfeiture;⁵³⁸ if he attempted to make a lease of it, this, if not a cause of forfeiture, subjected him to an amercement.⁵³⁹

Villein tenure and villein status.Finally we must note that the tenant in villeinage was usually regarded as an unfreeman, a bondman, villanus, nativus, servus. That a freeman should hold in villeinage was possible, and up and down the country there may have been many freemen with villein tenements; what is more, there likely enough were many men whose status was dubious. This is one of the most remarkable points in villeinage; villein tenure is of far greater practical importance than villein status. To prove that a man was personally unfree was, as we shall see in the next chapter, a difficult matter, and a case in which a lord had in his own interest to undertake this proof was not very common. So long as the tenant did not make up his mind to quit hearth and home, leaving the means of his livelihood behind him, the lord had seldom to fall back upon an assertion of personal bondage in order to get what he wanted. If the tenant was refractory the lord could distrain him, could take the tenement away for a time or for good and all. For all this however, the “extents” of the thirteenth century show that in the estimation of their lords—and, we must add, of their neighbours,—the holders of unfree tenements were as a general rule unfreemen. This is apparent in “extents” to which the tenants themselves pledge their oaths; it is plain upon the face of the Hundred Rolls. The juries of different hundreds may choose different phrases; but in one way or another, either by using such terms as nativus and servus, which imply personal unfreedom, [p.366] or by laying stress on the payment of the merchet, they generally show that in their opinion the case of a freeman holding in villeinage is uncommon and may fairly be neglected by those who are dealing with large masses of men.

§ 13. The Ancient Demesne ⁵⁴⁰

The ancient demesne and the other royal estates.The king is a great landowner. Besides being the supreme lord of all land, he has many manors of his own; there is a constant flow of lands into and out of the royal hands; they come to him by escheat and forfeiture, they leave him by gifts and restorations. Now a distinction is drawn among the manors that he has. Some of them constitute, so to speak, the original endowment of the kingship, they are that ancient demesne of the crown which the Conqueror held when the great settlement of the Conquest was completed and was registered in Domesday Book.⁵⁴¹ What has fallen in since that time is not considered as so permanently annexed to the kingly office; it is not expected of the king that he will keep in his own hands the numerous honours, baronies and manors with which felony and treason and want of heirs are constantly supplying him; rather it is expected that he will give these away again. On the other hand, he ought not to dissipate the old demesne manors. He does give them out, and that too to be held of him heritably, but often he reserves a substantial money rent; they are to be held of him in “fee farm.” This is hardly a matter of law; all the king’s manors are the king’s to give upon what terms he pleases; still his ancient patrimony is regarded as more closely bound up with his office than are those mere windfalls which now and again come to his hands.⁵⁴²

[p.367]Immunities of the ancient demesne. But in law also the distinction is important. We are accustomed to define a “franchise” as a portion of royal power in the hands of a subject, so that to speak of the king as having franchises would be a contradiction in terms. Nevertheless in early history the king appears as the first of all franchise holders, the first in point of greatness and the first, it well may be, in point of time. The king’s estates are (to borrow a word from abroad) “immunities,” perhaps the oldest of all immunities; they stand outside the normal, national system of justice, police and finance. Inside them there prevails a royal, which is also a seignorial, justice, and which remains distinct from the ordinary justice of the realm, even when that is done in the king’s name. The tenants on the ancient, the permanent, manors of the crown enjoy many “liberties” which flow from the king’s rights, they are to a very high degree exempt from all justice, save that which is done among them by a court which they constitute and which is presided over by a royal bailiff, exempt to a very high degree even from the justice of the king’s “courts of common law” when those courts have come into existence. They know little of the sheriff; they have not to attend the moots of the shire or the hundred; they need not serve as jurors; wherever they go they pay no toll; they are not taxed like other folk; on the other hand they are liable to be tallaged by the king. The king profits by these immunities; his manors are governed from within; the cultivators of his demesnes cannot be distracted from their duties to him.⁵⁴³ He attracts men to his land; the serf who lives there unclaimed for year and day is privileged against recapture.

Once ancient demesne, always ancient demesne.When new manors come to the king’s hands they do not enjoy these immunities. On the other hand, when the king gives away in fee farm or otherwise one of the ancient manors, the donee takes it with all its privileges. This we may say is an illustration of a general rule of law:—the escheat of a mesne lordship should leave unaltered the rights and duties of those who are the subjects of that lordship, and if a lord puts a mesne between himself and his tenant, that tenant should neither gain nor lose by the change. Thus, [p.368] once ancient demesne, always ancient demesne. The tenants who have been free of toll but liable to tallage should still be free of toll but liable to tallage, though the king has ceased to be and the Prior of Barnwell has become their immediate lord.

Peculiar tenures on the ancient demesne.All this would make the ancient demesne of importance in the history of political arrangements, in the history of the franchises, of justice, police and finance, though here the franchises and immunities enjoyed by the king’s estates would have to take their place beside the very similar franchises and immunities enjoyed by the estates of other privileged persons. But we do not at once see why there should be any form of land tenure peculiar to the ancient demesne. However, such a form of land tenure there is.

The problem stated.Briefly stated, the phenomenon which deserves investigation is this:—On the ancient demesne there is a large class of persons whose economic and social position is much the same, if not quite the same, as that of the ordinary holders in villeinage, but who are very adequately protected by law, or by custom which has all the force of law, in the enjoyment of their tenements. This protection is given to them by two remedies specially adapted to meet their case; the one is “the little writ of right close according to the custom of the manor,” the other is the writ of Monstraverunt. We will speak first of these remedies and then of the class for whose sake they exist.

The little writ of right.The “little writ of right close” is not unlike the “great writ of right patent.” This latter is the ordinary proprietary remedy for one who thinks that he ought to hold land by free tenure of a mesne lord. The writ patent is directed by the king to the mesne lord; it bids him “hold full right” (plenum rectum teneas) to the demandant and adds a threat that if he is remiss, the king’s sheriff will interfere.⁵⁴⁴ The lord then, if he has a court, holds a court, and justice can there be done to the demandant, though there are several ways in which the case can be withdrawn from his tribunal and removed first into the county court and then into the king’s court. Now the little writ is a similar writ. It is directed by the king to the bailiffs of the manor⁵⁴⁵—this will be so whether the king is himself the immediate [p.369] lord of the manor or whether it is in the hands of a mesne— and it bids the bailiffs do full right to the demandant “according to the custom of the manor.”⁵⁴⁶ It contains no threat of the sheriff’s interference, and this may be the reason why it is a “close writ” and not a “patent writ,” since no one but the recipient, who is not a public official, is required to act upon it. Thereupon the court of the manor proceeds to hear and is fully competent to determine the cause. Still it acts under surveillance. If it is going wrong, the sheriff can be sent with four knights of the county to watch its proceedings,⁵⁴⁷ and there are means by which the matter can be brought before the king’s central court.⁵⁴⁸ This writ, we say, is in use both when the manor is in the king’s hand, so that the demandant is claiming to hold immediately of him, and also when the manor has been given to a mesne lord. In the latter case the lord himself may be the defendant. So long as the king is the immediate lord, there can be no writ against the lord; of course not; but the would-be tenant of a few acres on the ancient demesne is in this respect no worse off than the mightiest of the barons; he who would get justice out of the king must petition for it in humble wise. But when the manor has been given to a subject, then the writ will lie against him; he can be required to do justice in a case in which, if the complaint be true, he himself is the evil doer. This is a remarkable point. The Abbot of Ramsey holds the manor of King’s Ripton, which is part of the ancient demesne. Joan of Alconbury thinks that she ought to hold eight acres which are in the abbot’s hand. The abbot is summoned once, twice, thrice and then distrained once, twice, thrice, to appear in his own court and answer her demand.⁵⁴⁹

Meaning of the little writ.Now so long as the manor is in the king’s hand, the case of the persons of whom we are speaking may not seem to differ radically from the case of villein tenants. Any one who claims to hold in villeinage is likely to get good enough justice in the lord’s court, provided that his opponent be not the lord. The difference may seem to be merely procedural. When a man claims villein land in an ordinary manor, he proceeds without any writ; ordinary lords do not [p.370] keep chanceries; when he claims unfree land (for so we will for the moment suppose it to be) in a manor of which the king is the immediate lord, and which is regarded as part of the permanent endowment of the crown, he must use a writ. This is but a detail. For a moment we may even feel inclined to say that there is nothing in the distinction but that love for parchment and wax which is natural to a government office. Even when it is added that the court of a manor on the ancient demesne acts under the supervision of the courts of common law, we may find analogies for this on the estates of prelates and other great lords. Such a lord sometimes has a central court, an “honorial” court, which controls the doings of his manorial courts; the so-called courts of common law, it may be said, are the king’s central court, the court of the great honour of England. Still, though there may be some truth in these suggestions, they must not be suffered to conceal a really important distinction. In the case of the ancient demesne, even while the manor is immediately subject to the king, the consuetudo manerii is put on a level with the law of the realm; it is enforced by the highest of all tribunals; indeed it is lex et consuetudo manerii.⁵⁵⁰ Nor is the mere use of a writ of no importance; it solemnly sanctions the custom. We have far more reason for saying that the distinction between “great” and “little,” between “close” and “open” than that the distinction between “writ” and “no writ” is trivial. But when the manor goes out of the king’s hand, then there is a truly abnormal state of affairs; the king compels the lord to do justice to claimants of land who yet claim no freehold. A climax is reached when the lord himself has to answer in the manorial court and submit himself to its process.

The Monstraverunt.This is not all. The little writ serves the turn of a man who claims land according to the custom of the manor; but the tenants of whom we are speaking are protected, and protected collectively, against any increase of their services. This is very plain when the manor is in the hands of a mesne lord. If he attempts to increase [p.371] the customary services, some of the tenants, acting on behalf of all, will go to the royal chancery and obtain a writ against him. Such a writ begins with the word Monstraverunt.⁵⁵¹ The king addresses the lord:—“ A, B and C, men of your manor of X, which is of the ancient demesne of the crown of England, have shown us that you exact from them other customs and services than those which they owe, and which their ancestors did in the time when that manor was in the hands of our predecessors, kings of England; therefore we command you to cease from such exactions, otherwise we shall order our sheriff to interfere.” The lord being deaf to this command, another writ is sent compelling him to come and answer for his disobedience before the king or before the justices of the Bench. When the case comes before the royal court, the complainants have in the first place to show that the manor is part of the ancient demesne; Domesday Book is used for this purpose as a conclusive test. Then, if this fact is proved or admitted, there arises the question whether the lord has exacted unaccustomed services, and if this is answered against him, it is adjudged that he shall do so no more. Here then we see a class of tenants who are not freeholders, but who are fully protected in the king’s court against their lord. Of course if the manor is in the king’s hand, there is no place for this procedure.⁵⁵² Still if the tenants allege that they are being oppressed by the king’s bailiffs, they can present a petition to the king and the matter will be investigated in the exchequer.⁵⁵³

[p.372]The classes of tenants. Bracton’s statement. And now we may ask, who are the persons for whose sake these remedies exist. Bracton in a classical passage tells us that on the king’s demesne there are several kinds of men. In the first place there are serfs or born bondmen who were (i.e. in the persons of their ancestors) serfs before the Conquest, at the Conquest and after the Conquest, and to this day they perform villein services and uncertain services and they are bound to do whatever is commanded to them, provided it be lawful and right. And at the Conquest there were freemen who freely held their tenements by free services or free customs, and, when they were ejected by the mighty, they came back and received the same tenements to hold in villeinage by doing servile works, but certain and specified works; and they are called glebae ascriptitii and none the less are they freemen, for, albeit they do servile works, still they do these, not by reason of personal status, but by reason of their tenure; and for this reason they cannot bring the assizes of novel disseisin or mort d’ancestor [the freeholder’s possessory remedies], for their tenement is villeinage, though privileged villeinage; they can only bring the little writ of right according to the custom of the manor; and for this reason are they called glebae ascriptitii, for they enjoy the privilege of not being removed from the soil so long as they do their right services—no matter to whose hands the king’s demesne may come; nor can they be compelled to hold their tenements against their will. Then there is another set of men on the king’s manors who hold of the demesne by the same customs and villein services as the above, and they do not hold in villeinage nor are they serfs, nor were they such at or before the Conquest, but they hold under covenant which they have made with the lord, and some of them have charters and some have not, and, if they are ejected from their tenements, they shall (according to some) have the assize of novel disseisin, and their heirs shall have the assize of mort d’ancestor. And there are other sorts [p.373] of men in the king’s manors and demesnes, who there, as might be the case elsewhere, hold freely in free socage or by military service under some modern feoffment made since the Conquest.⁵⁵⁴

Bracton’s statement discussed.Whereas then on ordinary manors we have, according to legal theory, but two tenures that must for our present purpose be distinguished, on the ancient demesne we have at least three. There are freeholders of the common kind, holding in free socage or by military service, and they require no special remedies. There are serfs holding in absolute villeinage. But between them there is a class of tenants whom Bracton oddly enough calls glebae ascriptitii because they cannot be ejected from their holdings; they are freemen; they can leave their tenements when they will; they hold by villein services, but services which are certain; they use the little writ of right. Lastly there is a class to which we may be allowed to give the name of “conventioners.”⁵⁵⁵ They differ from the ascriptitii rather in the origin of their holding and in the nature of their remedies than in the substance of their rights and duties. The ascriptitii are supposed to trace the origin of their class back to the Conquest; they hold by customary tenure; the “conventioners” hold under modern agreements, and it is arguable that, though they do villein services, they have the ordinary remedies of freeholders.

A second statement.In another and equally well known passage we hear of the same four classes. Bracton is speaking now without special reference to the ancient demesne, and remarks that villeinage may be either absolute or privileged. Absolute villeinage is the tenure of one who, be he free or be he serf, is bound to do whatever is commanded him, and does not know in the evening what he must do in the morning. Then there is a villeinage which is not so absolute; as when land is granted by covenant to a freeman or a serf for fixed, though villein, customs and services. If such a “conventioner” is ejected, Bracton (disallowing the opinion which would give him the freeholder’s assizes) holds that his proper remedy is an action on the covenant. Then, says he, there is another kind of villeinage which is held of the king from the Conquest of England, which is called villein [p.374] socage, and is villeinage though privileged villeinage; for the tenants of the king’s demesnes have this privilege that they may not be removed from the soil so long as they can and will do their due service, and these “villein sokemen” are properly called glebae ascriptitii; they do villein, but fixed and specified, services. Lastly, he once more remarks that in a royal manor there may be knights and freeholders, holding by military service or by free socage.⁵⁵⁶

The four classes of tenants.These freeholders we may dismiss from our minds; they have and they require no peculiar remedies; indeed, the term “ancient demesne” having begun to imply peculiar remedies, we find it contrasted with “freehold,” and in a judgment of Edward I.’s reign we are told that the lord of the manor, be he the king or no, can change “ancient demesne” into “freehold” by enfeoffing a tenant;⁵⁵⁷ after such a feoffment the tenement is no longer ancient demesne, but “is at the common law.”⁵⁵⁸ The case also of the “conventioners” we may for a while postpone, for it is not very important, though it is very curious. There remain two classes of tenants: those who hold in absolute villeinage and those who in Bracton’s terms hold in privileged villeinage, or in villein socage, and who are villein sokemen and “ascript to [i.e. irremovable from] the soil.” It is the men of this last class who use the little writ of right.

The theory borne out by practice.Such is the legal doctrine, and at some points it corresponds well with what we can learn of actual arrangements. On an ordinary manor we rarely find more than two classes of tenants that can be called legal classes. We may find more than two economic classes:—in the common case there will be a class of virgaters, a class of half-virgaters, a class of crofters and cotters, and there may well be a class of tenants who pay rents and do but little labour, while other classes must do “week work”—we find censuarii as well as operarii. Also, as already said, we may find some tenants (but hardly classes of tenants) about whose tenure we may doubt whether it be freehold or no. Still in general there is a clear dichotomy; there are freeholders and then there is one other great [p.375] class. The latter may be called by different names according to the taste of the jurors; its members may be termed servi, nativi, bondi, villani, custumarii, consuetudinarii; but legally their tenure is always the same; they hold according to the custom of the manor but their tenure is unrecognized by the king’s courts. When, however, in turning over the Hundred Rolls we come upon a manor of the ancient demesne, we often see a more elaborate stratification, and in particular we read of sokemen; and conversely when we see this more elaborate stratification and discover sokemen, we can usually learn that we are on the ancient demesne. Thus at Soham in Cambridgeshire, besides ordinary freeholders, there are free sokemen, bond sokemen, and villani, and at Fordham there are ordinary freeholders, sokemen and villani.⁵⁵⁹ We hardly need the testimony of Domesday Book: Saham manerium Regis, Fordeham dominica villa Regis.⁵⁶⁰ In Huntingdonshire at Brampton there are freeholders, free sokemen, and bond sokemen, at Alconbury numerous sokemen;⁵⁶¹ the natural inference may be verified in Domesday Book.⁵⁶² No one could look through the Oxfordshire surveys without singling out the manor of Bensington⁵⁶³ with its many liberi sokemanni, who are kept apart from its libere tenentes, and inferring that it was a manor of no ordinary kind. It is so with the court rolls. To say nothing of the “little writs of right” which are stitched to their membranes, the rolls of a manor on the ancient demesne are distinguished by entries which show that land is freely bought and sold,⁵⁶⁴ and if in the Hundred Rolls we are told that the custumarii of Chesterton have sold their half-virgates, we hardly need look to see whether Chesterton be not dominica villa Regis.⁵⁶⁵

Difficulty of classifying the tenants.We have, however, no little difficulty in marking off Bracton’s “absolute villeinage” from his “privileged villeinage.” His test is the “certainty” or “uncertainty” of the services due from the tenant. But, as we have already seen, there lurks an ambiguity in these simple terms. If by saying that a tenant owes servitia certa et nominata, we mean that the terms of his tenure are defended by legal remedies, remedies the administration of which either belongs to, or is at least supervised by, the highest court in the land, then we are treading a vicious circle: the remedies are given because the [p.376] services are certain, the services are certain because the remedies are given. If, on the other hand, we look at the nature of the services, and say that they are certain if they can be defined without any reference to the lord’s will, then we exact too much from those who are to claim the law’s protection. The men of King’s Ripton in Huntingdonshire used the little writ of right, they used the Monstraverunt, they distrained their lord, the Abbot of Ramsey, to answer them in the manorial court; but, according to an “extent” made by their representatives, they were bound to work one day a week all the year round “at whatever work he commanded them” and three days a week during August and September. Of them it might well be said that when they went to bed on Sunday night they did not know what they would have to do on Monday. In short, here as when we were outside the ancient demesne we come upon a matter of degree. There is hardly a tenant of whom it can be said that no custom prevents him from having to do just whatever services the lord may command; on the other hand, there is hardly a tenant doing any substantial amount of agricultural labour, of whom it can be said that he has never to attend to the lord’s will; even the true freeholder must do his boon works in autumn, and the very essence of a boon work is that, within some spacious limit, described by such a word as “harvest-time,” it must be done when it is asked for. How low down in the social and economic scale the protection given by the little writ and the Monstraverunt would go is excellently shown by the case of Ripton Regis. When pressed in pleading, the tenants admitted that ever since Henry I.’s day they had been paying arbitrary reliefs, arbitrary tallages, arbitrary merchet; but still they used the little writ and the Monstraverunt, and, if the abbot sought to make them work two days a week instead of one, they had their remedy in the king’s court.⁵⁶⁶

Practical difficulties.This being so, the lawyers never seem able to obtain any firm hold for their theory. They can repeat that there are three classes of tenants, freemen, villeins and sokemen; but how to draw the line between mere villeinage and the socage tenure of ancient demesne is a difficult problem.⁵⁶⁷ It is not as though we had merely [p.377] to fix the distinction at some one point in a single scale of degrees; there are many scales as well as many degrees. Besides the scale of agricultural labour with its infinite particulars, there are the scales of tallage, of relief, of heriot, of merchet. Even if, following Bracton, we say that the sokeman should at least be personally free and free to quit his tenement, the men of King’s Ripton will appeal against our judgment, for at least they do all that freemen ought not to do according to legal theories. They pay arbitrary tallage, arbitrary merchet, they cannot have their sons ordained, they may not leave the manor without the lord’s licence; and yet, when all this has been proved against them, they go on using the little writ of right and distraining their lord.⁵⁶⁸ Our law never surmounted these difficulties until tenure in villeinage was protected by the king’s court under the name of copyhold tenure, and the line between common copyhold and the privileged villeinage of the ancient demesne had become of little significance. Even then many a curious, if unimportant, problem was left for lawyers to fight over.

Sokemanry and socage.On the other hand, to mark off the tenure of the sokeman, which is sometimes called “sokemanry,”⁵⁶⁹ from the freehold tenure known as free socage was no easy task: the very words that we employ in stating the problem show that this was so. The question whether “the customary freeholders” who appear in our later books were really freeholders and as such entitled to vote in the election of knights of the shire, the question which required for its solution, not merely the learning of a Blackstone, but the authority of an act of parliament,⁵⁷⁰ was a question prepared of old. The sokeman on the ancient demesne cannot usually be accounted a freeholder; the liberi sokemanni are marked off in the “extents” from the libere tenentes; they use the little writ of right: they cannot use the great writ or the possessory assizes which speak of seisin of free [p.378] tenement. But is this so always? There is extant an elaborate opinion given by a lawyer of Edward I.’s day, one Aunger of Ripon, and it is found in so many manuscripts that certainly it must have been considered very sound and useful.⁵⁷¹ He says that, according to his masters, there are three cases in which a tenant, who holds part of the soil of the ancient demesne, may use the assize of novel disseisin. The first is the case of a freeholder who holds in an ancient demesne manor, and this we may pass by. The second is where one of the sokemen has enfeoffed some free “outsider” (liber homo extrinsecus) and this feoffee has been left undisturbed for a while by the lord; if after this he is ejected by the lord or any other, he can bring the assize. This case is quite intelligible because if my villein makes a feoffment, I must eject the feoffee at once or not at all, since otherwise he will be able to bring the assize against me:⁵⁷²—for the law of the thirteenth century is rigorous against self-help. But thirdly, if any “outsider” ejects a sokeman, the latter can bring the assize; this must be so (argues Aunger) for if someone ejects my mere villein, that villein by my leave will be able to recover in an assize; a fortiori we argue to the case of a sokeman whose estate is superior to that of a villein.⁵⁷³ Thus, according to this remarkable opinion, the term “free” when applied to a tenement is a relative term—we shall see in the next chapter that the term “free” when applied to a person is a relative term—for while as between himself and his lord the sokeman is no freeholder, still as regards all “outsiders” he can say that he has a free tenement, and, if ejected by them, he can make good the assertion that he has been disseised de libero tenemento suo. Thus we see that the perplexing terminology of later days which knows of “customary freeholds” which are “privileged copyholds,” has a very ancient root. Even the lawyers of the thirteenth century, [p.379] or some of them, maintained that for certain purposes the sokeman had “a free tenement.”⁵⁷⁴ Nor is this strange, for the class which was using the little writ of right was miscellaneous. If, on the one hand, it included men like those of King’s Ripton who were stamped with every common mark of personal servility, it included on the other hand men who had valuable interests in tenements, which they sold and mortgaged and settled upon their families without any interference on the part of their lord. Such men are brought before us by a judgment of Edward I.’s day; when they sell their lands they do not even surrender them into the lord’s hand, they make a feoffment as a freeholder would; they make charters of feoffment, and then the alienation is enrolled in the manorial court; for all this, however, “no writ runs among them but the little writ of right.”⁵⁷⁵

Later theory and practice.We must not here recount the subsequent fate of the tenants on the ancient demesne, nor would this be easy, for it is clear that, if the law itself did not undergo much change, the terms in which it was expressed were unstable. But we may note that an opinion grew up that the class protected by the little writ of right was really a class of freeholders, and then the inference was drawn that tenants who alienated their tenements, not in the freeholder’s method by feoffment, but by a surrender into the hands of the lord, could not use the little writ because they were not freeholders. This doctrine comes to the front early in the fifteenth century, at a time, that is, when it was no longer capable of doing much harm to those “sokemen of base tenure” whom it excluded from the benefits of the little writ, since under the name of copyholders they were on the point of obtaining a perfectly adequate protection under other writs. But, as already said, the difficulty was prepared of old.⁵⁷⁶

[p.380]Why is a special treatment of the ancient demesne necessary? And now two questions may occur to us. First, why should there be a peculiar class of customary tenants on those manors which have been in the king’s hand ever since the Norman Conquest? Secondly, why should the king interfere for the protection of customary tenants even when those manors have passed out of his own hand? The second question is the more easily answered. There has been an application of a very general rule of law which has come before us on more than one occasion. It may be thus stated:—the transfer of a lordship from one person to another should not affect the position of the tenants; as regards them it is res inter alios acta. When an honour escheats to the king, the tenants of that honour do not become liable to the special burdens which lie on those who are regarded as having held immediately of the crown from all time; the honour has still a notional existence for their benefit. Even so when the king parts with one of his ancient manors and puts a mesne lord over it, the tenants are neither to gain nor to lose by this transaction; as regards them, their rights and duties, the manor is still conceived as part of the royal demesne. A bye motive may secure the observance of this general rule in the case that is now before us. The king hardly regards these manors as having utterly ceased to be his, for, to say nothing of a possible act of resumption⁵⁷⁷ and to say nothing of escheats and forfeitures, many of these manors are let out to the mesne lords at substantial rents; they are held at “fee farm” and the king is concerned to see that the security for his rent is not impaired. It would be impaired were the tenants ill treated. This point, of importance in social history, is brought out [p.381] by many actions for “waste” sued by wards against their guardians; the guardian has not merely cut down trees and pulled down houses, but he has “destroyed,” “exiled” or impoverished the villeins.⁵⁷⁸ Still the desire to keep well stocked and well managed the manors which supply the king with his fee farm rents, can serve but to give a little additional force to a general rule of law. It is a rule which cuts both ways. If we find tenants eagerly contending that they are on the privileged soil, we may also find, though hardly so often, a lord affirming that his manor is on the ancient demesne while the tenant denies this. The special law for the old patrimony of the king will profit now one and now the other party to the tenure.⁵⁷⁹

The king preserves an old settlement.We come then to the main question. Why on those manors which have never left the king’s hand is there a large class of tenants such as are hardly to be found elsewhere, a class of “sokemen,” holding in “privileged villeinage”? All the evidence that we have conspires to tell us that there has been less change on these manors than elsewhere, and that the phenomenon before us is an unusual degree of conservatism. In the first place, the very name of “ancient demesne” shows us that the law supposes itself to be conservative. It is maintaining the Conquest settlement. To decide the question whether a manor be ancient demesne or no, it will go back far beyond all ordinary terms of limitation and prescription, far beyond “the beginning of legal memory”; it will be content with no evidence save that of the great survey. Nay in theory the ancient demesne gained its specific quality before Domesday Book was made. The lawyers of the fourteenth century had some doubts as to the exact moment of time at which the manor must have been in the king’s hand in order to make it ancient demesne for good and all, and the rule of evidence that they had adopted, namely that [p.382] no testimony was admissible save that of Domesday Book, must have tended to cause some little confusion; still on the whole they think that the privileged manors are “the manors of St. Edward.”⁵⁸⁰ In this, though hardly in any other, context they will go behind the Norman Conquest. In the second place, Bracton regards these sokemen as an ancient race; it holds its lands under a great concession made to it soon after the Conquest. If new settlers come onto the ancient demesne, whatever rights they may gain under agreements made with their lords, they are not sokemen nor entitled to the peculiar privileges of sokemen. This theory, however difficult of application two centuries after the Conquest, was no idle theory; we are constantly reminded that the special characteristics of the ancient demesne, if they inhere in certain tenements, inhere also in “the blood of the sokemen.” Thus when the men of Tavistock have recourse to a Monstraverunt, it is objected that many of them are adventitii.⁵⁸¹ Thus the men of King’s Ripton hold themselves to be a privileged race; even the ordinary rules of inheritance must yield when the choice is between a claimant who is not “of the blood of the vill” and one who is.⁵⁸² Thus again, Aunger of Ripon treats the little writ of right as a remedy which has place only where both parties are born sokemen, or where one is a born sokeman and the other the lord; against an extrinsecus or forinsecus there may be an [p.383] assize.⁵⁸³ Thirdly, without examining at any length the terminology of Domesday Book, we can say at once that the ancient demesne manors of the thirteenth century have preserved, while other manors have lost, some features which in the Conqueror’s survey are by no means peculiar to the royal villages; it is on the ancient demesne that we find more than one legal class of tenants who are not freeholders; it is on the ancient demesne that we find large groups of tenants still rejoicing in the ancient name of sokemen.

Why the king protects his tenants.Why has the king here shown himself as a conservative? Certainly we cannot answer that it is in the nature of kings to be conservative or solve the problem by an allusion to the inertness of a government bureau. In matters of law the royal power has been the great disturbing force, the king has been the radical reformer. Of course it is well to observe that on a royal manor there hardly can be any of those “half-rights” (if such a term may be invented) that may exist elsewhere. The custom of a royal manor, if the king recognizes it at all, must stand on much the same level as the law of the land; it will be administered by royal officers, and in the last resort it will be administered by royal officers who happen to be the judges of the supreme court of law. Still the king suffers this, and holds himself bound to suffer it, and his judges, for example, Bracton, say that he is bound to suffer it, say that the sokemen are irremovable so long as they do their services, say that their services are servitia certa et nominata. What we have to attribute to the king in a special degree is no mere inertness, nor is it enlightened self-interest (for this we should look to the monastic rather than to the royal estates) but it is a respect for custom, an acknowledgment that the rules administered in his manorial courts have all the force of law. Perhaps it is no paradox that he keeps the custom best because there can be no talk of his being forced to keep it. Another lord will draw a firm line between the rights of his freehold tenants, which he can be compelled to observe, and the rights, if such they are to be called, of his customary tenants, which he can ignore with impunity, and, as a remedy in the king’s supreme court is more and [p.384] more regarded as a touchstone of every would-be right, he will begin to reason that there is no right where there is no compulsion. It is otherwise with the king. If he ejects his sokeman, no action will lie against him; none will lie against him if he disseises the palatine earl. In either case the person wronged can but petition for right; in either case the wrongdoer must answer for his act before the one tribunal competent to try him; he must appear before the throne of God. Morally the king can never be as irresponsible as is another lord of a manor, just because legally no bounds, or no definite bounds, are set to his irresponsibility. Men will not easily distinguish between his two capacities. If a landlord, he is still the king, the supreme judge over all men, the fountain of justice; he has sworn to do justice; the abbot, the baron, the knight have taken no such oath. We may add that the king is bound to maintain the laws and customs of “the glorious king St. Edward his predecessor.” Should he not then begin at home? It is as the tenants of St. Edward that the men of the ancient demesne claim his protection.⁵⁸⁴

Customary freehold.Speaking generally we have said that outside the ancient demesne all the tenures of the non-freeholding peasantry are in law one tenure, tenure in villeinage. This is the doctrine of the lawyers of the thirteenth century, and on the whole it is well borne out by the manorial “extents.” Economically considered there are many modes of peasant tenure, for the tenement may be large or small, the agricultural services may be light or heavy, “week work” may be exacted or money may be taken; but just as the modern lawyer makes “leasehold tenure” cover such economically different things as a lease of a house in London and a lease of a farm, a lease for a year and a lease for a thousand years, beneficial leases and leases at rack rent, so all these modes of peasant tenure can be brought under one head. The legal quality which they have in common and which keeps them together, is, we may say, their customary quality; they are not protected by the law of the king’s courts, but they are protected, more or less perfectly, by the customs administered in the manorial courts. Legally they form one tenure, because in all cases the kind of protection that they receive is the same. In this quality [p.385] there are no degrees, or none that can be fixed with legal precision. Of course there are good and bad landlords, landlords who respect the custom, landlords who break it, conservative landlords and improving landlords; but all this is no matter of law. What we do not see is that one and the same landlord in one and the same manor admits that he has divers classes of non-freeholding tenants, which differ from each other in the validity of their tenure; what we do not see is a “privileged” beside an “absolute” villeinage. Still there are exceptions, and perhaps, were they all collected, they would form a considerable mass: in particular if the documents concerning Kent, East Anglia and Northumbria were patiently examined. In a cartulary of the twelfth century, in the Black Book of Peterborough, we still find on one and the same manor various classes of tenants bearing the names which are familiar to all who read Domesday Book. There are large groups of sochemanni who are kept well apart from the villani, but who very probably could not have made good a claim to be considered as freeholders in the king’s court.⁵⁸⁵ Even in the Hundred Rolls we may, though as a rarity, find a class of sokemen marked off from the freeholders on the one hand and the tenants in villeinage on the other, though the manor is not on the ancient demesne. It is so at Swavesey in Cambridgeshire. When Domesday Book was made Count Alan held it, and it is still held by Ellen de la Zouche “as of the honour of Britanny.” She has freehold tenants, a group of villani who hold de villenagio, a group of cotters; but besides these a group of sokemanni who hold sokelond.⁵⁸⁶ In the north the “tenants in drengage” are severed from the freeholders and from the “tenants in bondage”;⁵⁸⁷ and, if the Kentish “gavel-men” succeeded in making “gavelkind” a freehold tenure, and in some respects a privileged freehold tenure, since peculiarly cheap and easy remedies for its protection were allowed them, their tenure was still spoken of as though it were not absolutely “free”; it may be contrasted with “frank fee” just as the tenure of the king’s sokemen may be contrasted with “frank fee.” [p.386]⁵⁸⁸

Customary freehold in modern times.To this we must add that modern courts of law have from time to time been puzzled by the appearance before them of classes of tenants seeming to occupy a middle state between that of freeholders and that of copyholders. They are said to hold “according to the custom of the manor,” but not “at the will of the lord”; they convey their tenements sometimes by surrender and admittance in the lord’s court, sometimes by a deed of bargain and sale followed by an admittance; often they are subject to some of the usual burdens of copyhold tenure. They have come sometimes from manors which formed part of the ancient demesne, sometimes from other manors; in particular they have often come from a part of England in which, if Domesday Book be the final test, there can be no ancient demesne, namely, from the northernmost counties. Now it would be foolish to argue that the ancestors in law of any given group of such tenants enjoyed in the thirteenth century a condition superior to that of the ordinary tenants in villeinage. The full formula which is supposed to describe the tenure of the copyholder—“to hold at the will of the lord according to the custom of the manor”—is seldom found on the earliest court rolls. Any set of early court rolls is likely to show many variations in the phrases used about one and the same set of tenements, and in any particular case the omission of all allusion to the will of the lord from the formula which became current in the manorial court or the steward’s office, may be of recent origin and the outcome of an accident. An example may show how rash such inferences may be. The Dean and Chapter, successors of the Prior and Convent, of Durham have (it is said) no copyholders, having succeeded in proving that their peasant tenants held only for life and without any right of renewal. The Bishop of Durham has, or lately had, plenty of copyholders. But in all probability the explanation of this difference is to be found in what from our point of view are comparatively modern times. The convent, like many [p.387] other religious houses, took steps to prevent its villein or “bondage” tenements from being heritable in fact; the “corporation sole” was less far-sighted than the “corporation aggregate.”⁵⁸⁹ And again, the modern cases which introduce us to “customary freeholders” seldom tell us of more than one class of customary tenants on the manor that is in question:—on that manor there are no tenants who are said to hold “at the will of the lord.” Still when all the modern evidence is taken in the mass, it supports the inference that we should have drawn from the state of the ancient demesne. That inference is that the very general absence in the thirteenth century of any class of tenants mediate between the freeholders, who enjoy full and immediate royal protection, and the customary tenants, who (as men are beginning to say) hold at the will of the lord, is of late origin, the effect of legal rules and legal theories rather than of ancient economic facts.

No place for a tenure between freehold and villeinage.With its newly centralized royal justice, the law of the thirteenth century has no place for the sokeman. Even when he is preserved on the royal demesne, it hardly knows how to deal with him, can hardly decide whether he is a freeholder, thinks that he may be a freeholder as regards some and not as regards others. Outside the ancient demesne it proposes the dilemma, “Protected by the king or not protected by the king, and if not protected by him, then held at the will of the lord.” But if we strive to go behind the amazing activity of the king’s court, as behind a new thing, if we think of the freeholder as having to go in the first instance to his lord’s court and hardly able as a matter of fact to get much further, then the edge of the dilemma is blunted. That the application of this logical weapon did some immediate harm to the higher classes of peasants can hardly be doubted. Our legal terminology does indeed suggest that not a few of them, in particular not a few of the sokemen, fell at once on the right side of the line. How else can it happen that “free socage” became the name of a free tenure, a tenure by which even in Bracton’s day barons and knights are well content to hold? But, on the whole, the doctrine of the lawyers seems to have been that any considerable amount of labour service must be villein service, must make the tenure unfree and unprotected, because it cannot but be service which in many particulars will be done at the will of [p.388] the lord. Such a doctrine must have condemned many a sokeman of the twelfth century to hold in villeinage.

The “conventioners.”But of the past history of those tenures which are not freehold we must not speak in this place, for, however sharply the lawyers may contrast the two, villein tenure is, as a matter of fact, closely connected with villein status, a topic which will come before us in the next chapter. We have, however, yet to say a few words about a class of tenants who passed under our notice when we were transcribing Bracton’s account of the ancient demesne. Marked off from the “privileged villeinage” of the sokeman stands the tenure of certain adventitii, who, though they perform services similar to those of the sokemen, do not belong to that privileged race. They are regarded as “outsiders” who have recently come to the manor, who have taken tenements under agreements (conventiones), who must perform agricultural services and who are protected by law; but their title to protection is given them not by the custom of the manor, but by the terms of the agreement; we have called them “conventioners.”⁵⁹⁰ Bracton’s own opinion seems to be that their rights are not “real” rights; on the contrary, they are personal, contractual rights, to be enforced not by possessory or proprietary actions but by an action on the covenant. However, he admits that others thought differently, would have allowed these men the possessory assizes and therefore, for this would follow, would have treated them as freeholders. Bracton’s doctrine about this matter represents, so we may guess, rather a passing inclination than a settled practice. Two great causes made against its perdurance. In the first place, the theory that the sokemen were a privileged race, that the privilege ran, if we may so speak, rather in their blood than in their tenure, though we may find many traces of it, could not be permanently maintained. The day for racial laws was past, and as a matter of practice no barrier could be kept up between the natural progeny of the sokemen and these “adventitious” conventioners. In [p.389] the second place, the whole tendency of English land law was setting strongly in favour of the principle that any one who has a right to be in the occupation of land has a right in the land, and whilst in occupation has a true possession of the land. This is seen most clearly in the treatment of tenants for terms of years. For a short while an attempt had been made to treat them as having rights, but merely personal, contractual rights; but, before Bracton wrote, the attempt had broken down, and the termor was considered as possessing the land and as having rights in it. And so with these conventioners:—Bracton’s suggestion is very interesting, especially because he thinks that even an unfreeman may have a remedy upon a covenant against the covenantor; but we cannot find that it struck deep root.⁵⁹¹ On the whole, outside the ancient demesne, the law maintains the dilemma, “Freehold, or unprotected by law”; while even on the ancient demesne, “Freehold, Absolute Villeinage, Privileged Villeinage (Sokemanry)” exhaust all the possible cases.

Conclusion.Thus at the end of this prolonged account of the law of tenure we are brought back to a remark with which we started. Everywhere we see at first sight a simplicity that is truly marvellous. All the variegated facts of landholdership have been brought under the sway of a single formula, “the formula of dependent tenure,” and the only modes of tenure which the law distinguishes are very few. If the reader does not think that our law is simple, he should look abroad or he should look at the facts which our law has endeavoured to master. Has endeavoured to master, we say, for it has not succeeded at every point in its grand undertaking. It has dealt rudely with the facts, it has neglected many a distinction of great social and economic importance, it has driven its trenchant dilemmas through the middle of natural classes and athwart some lines of customary morality; but it has been bold and strong and therefore simple.