Chapter V: The Manorial Courts (2)

The rolls of King's Ripton are not less explicit in this respect. People are fined for selling land without the licence of the court, for selling it 'outside the court[827].' The judgment depends entirely on the verdict given by the community of suitors or its representatives the jurors. When the parties rely on some former decision, arrangement, or statement of law, they appeal to the rolls of the court, which, as has been said already, present nothing else but the recorded jurisprudence of the body of suitors[828]. The extent of the legal self-government of this little community may be well seen in the record of a trial in which the Abbot of Ramsey, the lord of the manor, is impleaded upon a little writ of right by one of his tenants[829]. But it is hardly necessary to dwell on so normal an event. I should like to take up for once the opposite standpoint, and to show that in these very communities on the ancient demesne elements are apparent which have thrived and developed in ordinary manors to such an extent as to obscure their self-government. In the Rolls of King's Ripton we might easily notice a number of instances in which the influence of the lord makes itself felt directly or indirectly through the means of his steward. We come, for instance, on the following forms of pleading: An action of dower is brought, and the defendants ask that the laws and customs hitherto used in the court should be observed in regard to them--they have a right to three summonses, three distraints, and three essoins, and if they make default after that, the land ought to be taken into the lord's hand, when, but only if it is not replevied in the course of fifteen days, it will be lost for good and all. All these demands are granted by the steward, with whom the decision, at least formally, rests[830]. Again, when we hear that the whole court craves leave to defer its judgment till the next meeting, it is clear that it rests with the steward to grant this request[831]. We may find now and then a consideration for the interests of the lord which transcends the limits of mere formal right, as in a case where a certain Margery asks the court, without any writ of right or formal action, that an inquest may be held as to a part of her messuage which is detained in the hands of the Abbot, although she performs the service due for it. The inquest is held, and apparently ends in her favour, but she is directed at the same time to go and speak with the lord about the matter. Ultimately she gets what she wants after this private interview[832]. The proceedings are irregular and interesting: the usual forms of action are disregarded; a verdict is given, but the material decision is left with the lord, and is to be sought for by private intercession. Quite close to this entry we find an instance which is in flagrant contradiction with such a considerate treatment of all parties. The jurors of the court are called upon to decide a question of testament and succession. They say that none of them was present when the testament was made, and that they know nothing about it, and will say nothing about it. 'And so leaving their business undone, and in great contempt of the lord and of his bailiffs, they leave the court. And therefore it is ordered that the bailiffs do cause to be levied a sum of 40 s. to the use of the lord from the property of the said jurors by distress continued from day to day[833].' This case may stand as a good example both of the sturdy self-will which the peasantry occasionally asserted in their dealings with the lord, and of the opportunities that the lord had of asserting his superiority in a very high-handed manner.

But we need not even turn to any egregious instances in which the lord's power is thus displayed. The usual forms of surrender are there to show that, as regards origins, we have the same thing here as in ordinary manors, although the peculiarities of the ancient demesne have brought forward the features of communal organisation in a very marked way, and have held the element of lordship in check.

[Free suitors in the halimot.]

We have seen that there was only one halimot in the thirteenth and the preceding centuries, and that the division into customary court and court baron developed at a later time. We have seen, secondly, that this halimot was a meeting of the community under the presidency of the steward, and that the relative functions of community and steward became very distinct only in later days. It remains to be seen how far the fundamental class division between free tenants and villains affected the management of the court. As there was but one halimot and not two, both classes had to meet and to act concurrently in it. The free people now and then assert separate claims: a chaplain wages his law on the manor of Brightwaltham that he did not defame the lord's butler, but when he gets convicted by a good inquest of jurors of having broken the lord's hedges and carried away the lord's fowls, he will not justify himself of these trespasses and departs in contempt, doubtless because he will not submit to the judgment of people who are not on a par with him[834]. Freeholders object to being placed on ordinary juries of the manor[835], although they will serve as jurors on special occasions, and as a sort of controlling body over the common presenters[836]. Amercements are sometimes taxed by free suitors[837]. But although some division is apparent in this way, and the elements for a separation into two distinct courts are gathering, the normal condition is one which does not admit of any distinction between the two classes. We come here across the same peculiarity that we have seen in police and criminal law, namely, that the fundamental line of civil condition seems disregarded. Even when a court is mainly composed of villains, and in fact called curia villanorum, some of its suitors may be freeholders[838]. Even in a court composed of free people, like that of Broughton, there may be villains among them[839]. The parson, undoubtedly a free man, may appear as a villain in some rolls[840]. Altogether, the fact has to be noticed as a very important one, that whatever business the freeholders may have had in connexion with the manorial system, this business was transacted by courts which consisted chiefly of servile tenants[841]. In fact the presenting inquests, on which the free tenants refused to serve, would not be prevented by their composition from attainting these free tenants.

[Requirement of free suitors.]

This seems strange and indeed anomalous. One point remains to be observed which completes the picture: although the great majority of the thirteenth century peasantry are mere villains, although on some manors we hardly distinguish freeholders, there is a legal requirement that there should be at least a few freeholders on every manor. Later theory does not recognise as a manor an estate composed only of demesne land and copyhold. Freeholds are declared to be a necessary element, and should they all escheat, the manor would be only a reputed one[842]. We have no right to treat this notion as a mere invention of later times. It comes forward again and again in the shape of a rule, that there can be no court unless there are some free tenants to form it. The number required varies. In Henry VIII's reign royal judges were contented with two. In John's time as many as twelve were demanded, if a free outsider was to be judged. The normal number seems to have been four, and when the record of the proceedings was sent up to the King's tribunal four suitors had to carry it. The difference between the statement of Coke and the earlier doctrine lies in the substitution of the manor for the court. Coke and his authorities, the judges of Henry VIII's reign, speak of the manor where the older jurisprudence spoke of the court. Their rule involves the more ancient one and something in addition, namely, the inference that if there be no court baron there is no manor. Now this part of the doctrine, though interesting by itself, must stand over for the present. Let us simply take the assertion that free suitors are necessary to constitute a court, and apply it to a state of things when there was but one strictly manorial court, the halimot. In 1294 it is noted in the report of a trial that, 'in order that one may have a court he must have at least four free tenants, without borrowing the fourth tenant[843].' Now a number of easy explanations seem at hand: four free tenants at least were necessary, because four such tenants were required to take the record up to the king's court and to answer for any false judgment; a free tenant could protest against being impleaded before unfree people; some of the franchises could not be exercised unless there were free suitors to form a tribunal. But all these explanations do not go deep enough: they would do very well for the later court baron, but not for the halimot. It is not asserted that free suitors are necessary only in those cases where free tenants are concerned--it is the court as such which depends on the existence of such free suitors, the court which has largely, if not mostly, to deal with customary business, and consists to a great extent of customary tenants. And, curiously enough, when the court baron disengages itself from the halimot, the rule as to suitors, instead of applying in a special way to this court baron, for which it seems particularly fitted, extends to the notion of the manor itself, so that we are driven to ask why the manor is assumed to contain a certain number of free tenants and a court for them. Why is its existence denied where these elements are wanting? Reverting to the thirteenth century, we have to state similar puzzling questions: thus if one turns to the manorial surveys of the time, the freehold element seems to be relatively insignificant and more or less severed from the community; if one takes up the manorial rolls, the halimot is there with the emphatically expressed features and even the name of a court of villains; but when the common law is concerned, this same tribunal appears as a court of freeholders. The manors of the Abbey of Bec on English soil contained hardly any freeholders at all. Had the Abbey no courts? Had it no manors from the standpoint of Coke's theory? What were the halimots whose proceedings are recorded in the usual way on its manorial rolls? In presence of these flagrant contradictions I cannot help thinking that we here come across one of those interesting points where the two lines of feudal doctrine do not meet, and where different layers of theory may be distinguished.

[Free suitors and freeholders.]

Without denying in the least the practical importance of such notions as that which required that one's judges should be one's peers, or of such institutions as the bringing up of the manorial record to the King's Court, I submit that they must have exercised their influence chiefly by calling forth occasions when the main principle had to be asserted. Of course they could not create this principle: the idea that the halimot was a communal court constituted by free suitors meeting under the presidency of the steward, must have existed to support them. That idea is fully embodied in the constitution of the ancient demesne tribunal, where the suitors were admitted to be the judges, although they were villains, privileged villains and nothing else. Might we not start from the original similarity between ancient demesne and ordinary manors, and thus explain how the rule as to the necessary constitution of the manorial court was formed? It seems to me a mere application of the higher rule that a court over free people must contain free people, to a state of things where the distinction between free and unfree was not drawn at the same level as in the feudal epoch, but was drawn at a lower point. We have seen that a villain was in many respects a free man; that he was accepted as such in criminal and police business; that he was free against everybody but his lord in civil dealings; that the frank-pledge system to which he belonged was actually taken to imply personal freedom, although the freeholders ultimately escaped from it. I cannot help thinking that a like transformation of meaning as in the case of frank-pledge did take place in regard to the free suitors of the manorial court. The original requirement cannot have concerned freeholders in the usual legal sense, but free and lawful men, 'worthy of were and wite'--a description which would cover the great bulk of the villains and exclude slaves and their progeny. When the definitions of free holding and villainage got to be very stringent and marked, the _libere tenentes_ assumed a more and more overbearing attitude and got a separate tribunal, while the common people fell into the same condition as the progeny of slaves. In a word, I think that the general movement of social development which obliterated the middle class of Saxon ceorls or customary free tenants (leaving only a few scattered indications of its existence) made itself felt in the history of the manorial court by the substitution of exceptional freeholders for the free suitors of the halimot. Such a substitution had several results: the diverging history of the ancient demesne from that of the ordinary manorial courts, the elevation of the court baron, the growth of the notion that in the customary court the only judge was the steward. One significant little trait remains to be observed in this context. It has been noticed[844] that care seems to be taken that there should be certain Freemen or Franklains in every manor. The feature has been mentioned in connexion with the doctrine of free suitors necessary to a court. But these people are by no means free tenants; in the usual legal sense they are mostly holding in villainage, and their freedom must be traced not to the dual division of feudal times, but to survivals of the threefold division which preceded feudalism, and contrasted slave, free ceorl, and military landowner.

[Honorial Courts.]

Before concluding this chapter I have to say a few words upon those forms of the manorial court which appear as a modification of the normal institution. Of the ancient demesne tribunal I have already spoken, but there are several other peculiar formations which help to bring out the main ideas of manorial organisation, just because they swerve from it in one sense or another. Mr. Maitland has spoken so well of one of these variations, that I need not do anything more than refer the reader to his pages about the Honour and its Court[845]. He has proved that it is no mere aggregate of manors, but a higher court, constructed on the feudal principle, that every lord who had free tenants under him could summon them to form a court for their common dealings. It ought to be observed, however, that the instance of Broughton, though its main basis is undoubtedly this feudal doctrine, still appears complicated by manorial business, which is brought in by way of appeal and evocation, as well as by a mixture between the court of the great fief and the halimot of Broughton.

[The soke.]

A second phenomenon well worth consideration is the existence in some parts of the country of a unit of jurisdiction and management which does not fall in with the manor,--it is called the _soke_, and comprises free tenantry dispersed sometimes over a very wide area. A good example of this institution is given by Mr. Clark's publication on the Soke of Rothley in Lincolnshire[846]. We need not go into the details of the personal status of the tenants, they clearly come under the description of free sokemen. Our present concern is that they are not simply arranged into the manor of Rothley as usual, but are distinguished as forming the soke of this manor. They are rather numerous-- twenty-three--and come to the lord's court, but their services are trifling as compared with those of the customers, and their possessions are so scattered, that there could be no talk of their joining the agrarian unit of the central estate. What unites them to the manor is evidently merely jurisdiction, although in feudal theory they are assumed to hold of the lord of Rothley. But they are set apart as forming the soke, and this shows them clearly to be subjected to jurisdiction rather than anything else. It is interesting to note such survivals in the thirteenth century, and within the realm of feudal law the case of Rothley is of course by no means the only one[847]. If we contrast this exceptional appearance of the soke outside the manor with the normal arrangement by which all the free tenants are fitted into the manor, we shall come to the conclusion that originally the element of jurisdiction over freeholders might exist separately from the management of the estate, but that in the general course of events it was merged into the estate and formed one of the component elements of the manorial court. The case of Rothley is especially interesting because the men of the soke or under the soke do not go to a court of their own, but simply join the manorial meetings. If they are still kept apart, it is evident that their relation to the court, and indeed to the manor, was what made them distinct from everybody else. In short, to state the difference in a pointed form, the other people were tenants and they were subjects.

[The Aston case.]

One more point remains to be noticed. In order to make it clear we must by way of exception start from the arrangements of a later epoch than that which we have been discussing. The manor of Aston and Cote, which may have been carved out with several others from the manor of Bampton, presents a very good instance of a village meeting which does not coincide with the manorial divisions, and appears constructed on the lines of a village community which has preserved its unity, although several manors have grown out of it. It was stated by the lord of the manor of Aston and Cote in 1657, that 'there hath been a custom time out of mind that a certain number of persons called the _Sixteen_, or the greater part of them, have used to make orders, set penalties, choose officers, and lot meadows, and do all such things as are usually performed or done in the courts baron of other manors.' All the details of this case are interesting, but we need not go into them, because they have been set out with sufficient care in the existing literature, and summed up by Mr. Gomme in his book on the Village Community[848]. It is the main point which we must consider. Here is an assembly meeting to transact legal and economic business, which acts on the pattern of manorial courts. And if not a manorial court, what is it? I think it is difficult to escape the conclusion that it is a meeting of the village community outside the lines of manorial division. The supposition that it represents the old manor of Bampton, to which Aston, Cote, Bampton Pogeys, Bampton Priory are subordinated, is entirely insufficient to explain the case, because then we should not have had to recognise new manors in the fractions which were detached from Bampton, and there would have been no call to speak of a peculiar assembly assuming the competence of a court baron--we should have had the manorial court and the lord of Bampton, and not the Sixteen to speak of. The fact is patent and significant. It shows by itself that there may have been cases where the village community and the manor did not coincide, and the village community had the best of it.

[Manor and Township.]

The first proposition does not admit of doubt. It was of quite common occurrence that the land of one village should be broken up between several manors, although its open field system and all its husbandry arrangements remained undivided. The question arises, how was that system to work? There could be express agreement between the owners[849]; ancient custom and the interference of manorial officers chosen from the different parts could help on many occasions. But it is impossible to suppose, in the light of the Bampton instance, that meetings might not sometimes exist in such divided villages which took into their hands the management of the many economic questions arising out of common husbandry: questions about hedges, rotation of crops, commonable animals, usage as to wood, moor, pasture, and so forth. A diligent search in the customs of manors at a later period, say in the sixteenth and seventeenth centuries, must certainly disclose a number of similar instances. Our own material does not help us, because it passes over questions of husbandry, and touches merely jurisdiction, ownership, and tenant-right. And so we must restrict ourselves to notice the opening for an inquiry in that direction.

[Township and Manor.]

Such an inquiry must also deal with the converse possibility, namely, the cases in which the manor is so large that several village units fit into it. We may find very frequently in some parts of the country large manors which are composed of several independent villages and hamlets[850]. On large tracts of land these villages would form separate open field groups. Although the economic evidence is not within our reach in early times, we have indications of separate village meetings under the manorial court even from the legal point of view taken by the court-rolls. In several instances the entries printed in the second volume of the Selden Society publications point to the action of townships as distinct from the manorial court, and placed under it. In Broughton a man distrained for default puts himself on the verdict of the whole court and of the township of Hurst, both villains and freemen, that he owes no suit to the court of Broughton, save twice a year and to afforce the court. Be it noted that the court of Hurst is distinguished from the township, which appears subordinated to it, probably because there were other townships in the manor of Hurst. At the same time the township is called upon to act as an independent unit in the matter. Even so in the rolls of Hemingford, the township which forms the centre of the manor and gives its name to it, is sometimes singled out from the rest of the court as an organised corporation[851]. When township and tithing coincided, as in the case of Brightwaltham, the tithing gets opposed to the general court in the same way[852]. Altogether the corporate unity of townships is well perceivable behind the feudal covering of the manor. Mr. Maitland says with perfect right, 'the manor was not a unit in the governmental system; the county was such a unit, so was the hundred. So again was the vill, for the township had many police duties to perform; it was an amerciable, punishable unit; not so the manor, unless it coincided with the vill[853].' And then he proceeds to suggest that the true explanation of the manor is that it represents an estate which could be and was administered as a single economic and agrarian whole. I am unable to follow him entirely as to this last point, because it seems pretty clear that the open field arrangements followed the division into townships, and not those into manors. From the point of view of the services, of the concentration of duties of the tenantry in regard to the lord, the manor was a whole, and for this very reason it was a whole as regards geldability, but this is only one side of the economic structure of society, the upper side, if one may be allowed to say so. The arrangement of actual cultivation is the other side, and it is represented by the township with its communal open fields. Now in a great many cases the estate and the community fitted into each other; and of these instances there is no need to speak any further. But if both did not fit, the agrarian unity is the township and not the manor. The open field system appears in this connexion as outside the manor, and proceeding from the rural community by itself.

Let us sum up the results obtained in this chapter.

1. The village communities contained in the manorial system are organised on a system of self-government which affords great help to the lord in many ways, but certainly limits his power materially, and reduces him to the position of a constitutional ruler.

2. The original court of the manor was one and the body of its suitors was one. The distinction between courts for free tenants and customary courts grows up very gradually in the fourteenth century, and later.

3. The steward was not the only judge of the halimot. The judgment came from the whole court, and its suitors, without distinction of class, were necessary judicial assessors.

4. The court of ancient demesne presents the same elements as the ordinary halimot, although it lays greater stress on the communal side of the organisation.

5. The conveyancing entries on the rolls do not prove the want of right on the part of the peasant holders. On the contrary, they go back to very early communal practice.

6. The rule which makes the existence of the manor dependent on the existence of free suitors is derived from the conception of the court as a court of free and lawful men, taking in villains and excluding slaves.

7. The manor by itself is the estate; the rural community and the jurisdiction of the soke are generally fused with it into one whole; but in some cases the two latter elements are seen emerging as independent growths from behind the manorial organisation.