vii.).

[239] Merton Doc.u.ments, MSS. Book labelled "Kibworth and Barkby, 1636." For another ill.u.s.tration of fixed copyhold rents, see Maitland, _English Hist. Review_, vol. ix.: The History of a Cambridgeshire Manor.

[240] Quoted, Leadam, "The Security of Copyholders in the Fifteenth and Sixteenth Centuries" (_English Historical Review_, vol. viii. pp. 684-?696). The case in question was that of the inhabitants of Thingden _v._ John Mulsho.

Here, perhaps, we should stop. What manner of men these were in that personal life of which economics is but the squalid scaffolding; what stars threw for them their beams on that tremendous whirlpool of religion and politics into which Europe was plunging, we cannot say. Of the hopes and fears and aspirations of the men who tilled the fields which still give us in due season their kindly fruit, we know hardly more than of the Roman plebs, far less than of the democracy of Athens.

Yet these men too had their visions. Their silence is the taciturnity of men, not the speechlessness of dumb beasts.

That the peasantry as a cla.s.s were no politicians was a natural consequence of the position which they had occupied throughout the Middle Ages. On a small number among them, in the Eastern counties a large number, the State had for centuries showered duties and obligations with a lavish hand, and the freeholders, though they must often have cursed the tediousness of suit of court, and jury service, and Parliamentary elections, turned that tiresome discipline to good account in the days when the Stuarts had contrived to make politics to thousands of heavy-handed obstinate people throughout England a matter not only of money but of conscience. The non-partic.i.p.ation of the bulk of the peasantry in the same large interests was not due to poverty, for often the copyholders were wealthier than the freeholders who listened to Pym and Hampden on that first great election campaign in 1640, and left their farms to fight for King or Parliament. Nor was it due to timidity or lack of spirit, for, as we shall see later, they frequently a.s.serted themselves in the course of the sixteenth century in their own characteristic way of agrarian strikes.[241] It was rather that the centre of their interests and their social horizon were different. The freeholders from an early date had been brought into contact with the chief inst.i.tutions of the organised political state. Since the twelfth century they had been protected in their holdings by the courts, and had learned through that cunning procedure which was the fruit of Henry II.'s[242] sleepless nights, that though often one cannot do much with the law, one can do even less without it. Since the thirteenth century they, along with their social superiors, had returned members to Parliament, and had acquired that facility in grumbling at taxation which is the beginning, though not, as is so commonly supposed, the end, of political wisdom. Thus they became a body in whose eyes the Law, Parliament, the State, loomed up, though for ages dimly enough, as a big something which it is well to have on your side, something which requires, like the new fangled arquebuses, to be carefully handled, something which, if neglected, may give you a surprising shock, but if treated with proper respect may teach manners even to your landlord. Of course your first duty is to him. You ride and fight for him readily enough as your fathers did. But still, you do it because you have said you will, not because he has said you shall, and though London lawyers are a pack of knaves, it is good to know that the law will, if necessary, make him see the difference.

[241] See below, pp. 329-331.

[242] Bracton, f. 164 b.: "Succuritur ei per recognitionem a.s.sisae novae dissesinae multis vigiliis excogitatam et inventam"

(quoted Pollock and Maitland, _History of English Law_, vol. i.

p. 125 n.).

But the freeholders have been for centuries a privileged cla.s.s, and those of the peasants who are copyholders, a far more numerous body, are in a very different position. Your fathers were villeins, who hung on the words of the upstart manorial officials, who "had no right to know at night what they should do on the morrow,"[243] who never had the bitter satisfaction of grumbling that they got no return for the wages paid to the knights of the shire, who had no redress from the King's Courts if threatened with eviction. Of course you are not in the same position now. Your blood has been purged of the servile taint for generations. The lawyers have been competing for your business, and so the Court of Chancery has invented a new procedure to protect you in your holding. "When thieves fall out...." Still, it is better to run no risk of offending your superiors, for the law is a chancy thing, and your t.i.tle (you keep the copy under lock and key and refuse to show it to the new surveyor lest he should twist it into meaning what it doesn't) is none too clear.[244] Deep down in your mind, beneath the prosperity of to-day, there are dim memories of old, unhappy, far-off things, and your shoulders slouch at their recollection. _Weh dir da.s.s du ein Enkel bist!_ The bailiff has invented a pedigree as long as your arm to prove that your great-grandfather was a villein, and had no business to have bought his freedom for the preposterous reason that the money with which he bought it was the lord's all along. The toadying beast is even trying to curry favour by saying that your copyhold is for life only, and that your fine is uncertain. True, there are plenty of ancient inhabitants who will swear in the manor court that your family has lived in the village before the present lord was ever heard of. But it is easy to bully and cajole them into silence. Were not Walter and Hugh turned adrift, "weeping bitterly," because money had to be found to pay the young lord's debts? As a copyholder, then, you are much less conscious of the State than if you are a freeholder, because in the matter which interests you most, the security of your holding, you have for centuries had no dealings with the State at all. Your idea of Government is a vague reverence for a King who sits far away in Westminster with a crown on his head and his judges about him, and who governs his kingdom as a good lord--not like yours--governs his manor.

For the rest you are a non-political animal, who take little interest in affairs of State, because in the past the State has taken so little interest in you. When your fathers made London tremble in the great days of 1381 (you can see from your hay-stack the hill where they were hanged, hanged "like dogs"[245]) what they demanded was fair rents and freedom from villein services. When you went out with Ket in 1549 you asked the same, and, untaught by their experience, you begged that the King would see that you had the fair play which his Justices of the Peace, who are your landlords, will never allow you.[246] When King and Parliament come to blows, you curse both impartially, remain neutral as long as you can, and only turn out when they begin driving the village beasts. Your sentiments are pithily expressed in the motto which a local wit has devised for the village banner: "If you take our cattle, we will give you battle."[247]

[243] Bracton, Lib. iv. cap. 28, f. 208.

[244] _Northumberland County History_, vol. iii., Pt. V., pp.

86-?104, Survey of Hexham (1608): "Their fines they pretend to be certain, viz. one year's rent at everye change of tenant, but not herritable. They have there, for certaine, very ancient evidences and Court Rolls, but they woulde not show them unto us, nor any of their coppies." See also Appendix I. No. IV.

[245] _Hist. MSS. Com._, Part VII., pp. 49?-50 (1596): Some information concerning those intending the rebellion in Oxford.... "And Steer said that there was once a rising at Ens...o...b.. Hill by the commons, and they were persuaded to go down and were after hanged like dogs. 'But,' said he, 'we will never yield, but will go through with it!'"

[246] See below, pp. 334?-337.

[247] Warburton's _Rupert_, iii., 118 (quoted Gooch, _English Democratic Ideas in the Seventeenth Century_, p. 112).

If, however, the peasantry are on the whole uninterested in the larger problems of government to which the world has agreed to confine the word politics, this is not because they are incapable of self-help, or dest.i.tute of any conception of public expediency. It is because the framework of their lives has for ages been different from that of the freeholders, because the centre round which their social interests revolve is even more localised than it is to the freeholders, because what matters to them most is not the law of the land but the custom of the manor. We shall have hereafter[248] to discuss the vexed question of the legal position occupied by the copyholders in the sixteenth century.

But we may pause for a moment to point out here the decisive part which custom had played, and still played in our period, in moulding the lives of the ma.s.s of the peasantry, because unless this is firmly grasped we cannot understand their mental horizon. It is the custom of the manor which gives them their social environment and their conception of public order. The commonest name for all those who hold neither freely nor by lease is "customary tenants," men whose t.i.tle is rooted in custom. When the courts begin to interfere to protect copyholders, they introduce that sweeping innovation under the guise of enforcing customary conditions. They do not say "copyholders can be evicted." Nor do they say "copyholders cannot be evicted." They say, "Tell us what the custom of your manor is, and if it is one which does not seem to a plain man too unreasonable, we will enforce it." When tenants and landlords fall out, it is always to custom that the tenants appeal. When the peasants ask the Government for a.s.sistance, they do so by demanding the observance of their "old customs."

[248] See below, pp. 287?-310.

Let us look at the custom of the manor more closely. The phrase has, of course, misleading suggestions for modern ears. We tend to think of custom as something indefinite and inconclusive; something which is not, like the law (we speak of what should be), the embodiment of reason; something which fetters progress and is the opposite of freedom; something which is mere habit, and very likely a "bad habit" at that.

All this is true in a sense. It is the way in which in the sixteenth century an enterprising landlord looks at the custom which ties his hands. But it is not the way in which it is regarded by the peasants.

The custom of the manor does not mean to them a mere feeble acquiescence in existing conditions, mere inertia. It is not a negative, but a positive thing. It is no more inconsistent with progress to observe the custom, than it is inconsistent with progress to keep out of gaol by observing the law. For the custom is simply the law of the village. Like the main rules of the common law, it comes down from a dim age that is beyond the memory of man. Like law it is enforced by a court, the court of the manor. Like law it can be altered (and in some respects and on some manors often is altered to meet the new conditions of our period) by the proper authority, which again is the court of the manor. Of course it is not law in the fullest sense. From one standpoint it is the ant.i.thesis of law, the law of the King's Courts, which, till the end of the fourteenth century, has taken no cognizance of the customary tenures, though since that time the Court of Chancery, by intervening to enforce the custom of the manor in respect of copyholds, has been breaking down the opposition. Still, for the ma.s.s of the peasantry, even in the sixteenth century, custom is a bigger, more important, thing than the law of the national courts. It is with custom that the first decision will lie.

Again, the custom of the manor is not at all a vague or indefinite thing. That it reposed partly on the Court Rolls, partly on the memory of ancient inhabitants, we can see from the frequent appeals which are made to both of them. But it certainly is no mere nebulous tradition. On the contrary, it is often most rigorous in its precision. It lays down boundaries and numbers stocks and stones. It adjusts and readjusts agricultural arrangements. It enters into the details of social life with a bold hand. Let us reflect, to take an example, on the customs of High Furness, parts of which have been quoted above. Here we have a whole village agreeing about matters which do not at first sight seem, like the use of pastures or the fixing of boundaries, of a specially public character. The term on which a man's property is to be distributed among his descendants, this, if anything, one might expect to be left to his own discretion, once the succession of an heir to maintain the rents and services due from the holding had been provided for. The rules quoted above go much further than this. They settle exactly what proportion of a man's property is to go to his different children, male and female, from the eldest down to the youngest. Imagine a Parish Council to-day distributing the wealth of deceased parishioners with the object of seeing that the whole of the younger generation shall obtain some kind of start in life, and you will have an a.n.a.logy to what is done by the prudent men of High Furness.

Or take another example, where the points handled are of a somewhat different kind. Here are the customs of the manor of Bushey,[249] as set out in 1563 by twenty customary tenants in response to an inquiry by the lord:--

"In primis to the fyrste article we saye that no copyholder at the tyme of his death dying seased of twoo copyholdes hathe paid any more than one quycke heriott by the tyme of any remembrance, or before, to our knowledge.

"Item to the seconde we saye that the lorde oughtte to have the second beste for hys herryott and the heyer the beste.

"Item to the thyrde we saye that the copyholder that doth surrender his copyholde ought not to paye any herryott upon the surrender of his copyholde except yt be in extreme of deathe.

"Item to the fourth we saye that lords of the mannor have never demanded nor any copyholder payde any more for their ffyne than one yere's rente of the lande.

"Item to the fyfth we saye that the widdowe upon the deathe of her husbande shall have the thyrde parte of the rente of the lande, but not the thyrde part of the lande except yt be surrendered to her by her husbande.

"Item to the syxth we saye that the copyholder may sell hys underwoode and stocke upp by the roote the same wytheout lycense of the lorde.

"Item to the seventh we saye that the copyholder may fell tymber for reparacion or otherwyse to sell the same to hys use and profyt; so hathe yt byn used by our tymes and by all tyme beyond the memory of man.

"Item to the eytthe we saye that the copyholder may make a grante of hys copyholde for three yeres wythoute the lord's lycense, and the lorde to take nothing for the same.

"Item to the nineth we saye that the tenants maye take surrender bothe within the manor and without the manor.

"Item to the tenth we saye that we cannot answer for that we knowe not every man's lande.

"Item to the eleventh we saye that every copyholde is not heryottable.

"Item to the xiith we knowe not where the Courte Rolles, Rentals, or customaryes of the manor are remayning or in whose custodye.

"Item to the xiiith we saye that we knowe not of any deutyes or rentys withdrawn from the lordshippe.

"Item to the xiiiith we saye that we never knewe nor hearde any heryott payde for freeholde at the dethe of the freholder.

"Item to the fyfteneth we say that the freholder hathe never payde relief at alienacion, but at deathe only.

"Item to the xvith we saye that a copyholder dying his heir being wythin the age of xiiii yeres the custody of the body and lande oughte to be comytted by the lorde to the nexte of the kyn to whom the inheritance may not dyscende."

[249] I take them from the MSS. Court Rolls of the Manor of Bushey, kindly lent me by the late Miss Lucy Toulmin Smith.

In themselves these customs are not in any way remarkable, except perhaps for the uniform favour which they show to the interests of the tenants. They might be paralleled from those of scores of other manors.

What is worth noticing is the precision of the rules laid down. The relations between the lord and the tenants are settled with the definiteness of a sort of great collective bargain.

It would be going beyond the scope of this essay to enter upon the large question, on which so much learning has been expended, of the respective parts played in manorial origins by the communal organisation of villagers for the purpose of self-government in their agrarian affairs, and by the authoritative pressure of superior authorities for the purpose of using the village as the basis of a financial and political system. But one may point out that facts such as have been quoted above in ill.u.s.tration of the rule of custom cannot easily be fitted into any theory which regards the economic arrangements of the manor as the result simply of a system imposed from above, and which treats the customary rights of the peasants as the outcome of concessions made by lords from time to time in their own interests, the revocation of which involved no larger difficulties than necessarily surround the alteration of practices sanctioned by long use. However much the organisation of village life may have been stereotyped by the pressure directed upon it by the desire of the manorial authorities to extract rents and services on an unvarying plan, one cannot trace it altogether to its subordination to such external forces, because the custom of the manor acts as a restriction which impedes the free action of lords themselves and their agents, even when they are most anxious to break through its meshes. This is seen more clearly perhaps in the sixteenth century than in earlier periods, for the very reason that the sharp collision of interests between lords and tenants makes it more possible to distinguish those parts of manorial custom which represent the economic interests of the tenants, from those which represent the power of the manorial authorities imposed upon them. Under the latter heading would fall the rules as to heriots and reliefs, rules forbidding waste, rules requiring tenants to pay "for the rushes which they gather on the lord's common,"[250] or to perform the surviving remnants of labour services, while a rule such as that of High Furness, forbidding the division of holdings to such an extent as to prevent the discharge of services or the obtaining of an adequate living by the occupier, may be regarded as a compromise in which the interests of both lord and tenant receive consideration. Under the former may be placed the custom which fixes rents, and, on some fortunate manors like Bushey, fixes fines to be paid on admission, sanctions the sub-letting of copyholds and the felling of timber, and allots rights of pasture to each arable holding. Not all of these, of course, stand upon the same footing of importance. The right to cut wood is much less essential than the right to graze cattle. But some of them, at any rate, like rights of common pasture, seem to be bound up with the very existence of the village as an agricultural community, and all of them are dictated by the interests of the peasants in protecting themselves against encroachments, as clearly as are those of the first type by the desire of lords to make the manor a source of profit to themselves. It is scarcely possible to account for the obstacles put by manorial customs in the way of changes which would benefit the lord and be detrimental to the tenant, except on the supposition that they are rooted in something more indestructible than the mere concession of privileges which long use has solidified and hardened; something which can only be found in the fact that they are an essential part of the life of the village, to which the lord himself, as a condition of extracting revenue from it, is almost bound to conform.

[250] Aldeburgh, _temp._ Henry VIII., R.O. _Misc. Bks. Treas. of Receipts_, vol. clxiii. See Appendix I., No. II.

This brings us to our original point, the way in which the whole social environment of all the tenants, except the freeholders, who do not need the protection of custom, and the leaseholders,[251] who cannot get it, is dependent upon the custom of the manor. Fraught with modern a.s.sociations as it is, the phrase "collective[252] bargain" is perhaps the nearest we can get to expressing what the custom of the manor means to the peasants themselves. Of course it is much more than this. The custom has the sanction of immemorial antiquity. The phrase "time out of mind" is no mere piece of idle rhetoric. The stable self-perpetuating conditions of economic life create a sort of communal memory, in which centuries are focussed. There were villages where, in the reign of Elizabeth, the effects of the Great Plague[253] were still dimly remembered. But regarding the matter from the point of view of the practical working of village life, we shall not be far wrong if we think of the peasants as a body of men who are more or less organised, and of the custom as a system of common rules which regulates the relations between them and the lord. And it is evident that the custom of the manor, at any rate in our period, is a safeguard of the tenants'

interests rather than of those of the manorial authorities. It is not only that the changes which followed the Great Plague have set the peasants free from the most irksome customary restrictions, but, further, that, in the sixteenth century, it is the lord who wants to make innovations and the tenants who resist them, and that it is therefore the latter who stand to gain most by clinging to custom. The custom sets up a standard by which encroachments can be opposed, by which the village as a whole can put a solid barrier in the way of change, by which blacklegging (in the shape of one man taking a holding over the head of another) can be prevented. Compet.i.tive forces have, it is true, been gradually undermining custom, and by the sixteenth century an increasing number of tenants have the terms on which they take their holdings settled by the higgling of the market without reference to any authoritative rule. Nevertheless, as far as the copyholders, who are the kernel of the manor, are concerned, compet.i.tion is held in check by the fact that, on certain fundamental matters, there is a common understanding between the peasants, which is recognised by the lord himself. The manorial authorities cannot bargain with the tenants one by one. They have to deal with the villagers as men who are "organised,"

who are members of a society, who know what they have to expect in the way of heriots and rents and fines, and who will be supported by village opinion in resisting innovations. On occasion the peasants will strike.

On occasion they will force their landlord to arbitration.[254] One might almost say that the customary tenants are trade unionists to a man. Again, who shall determine what the custom is? The court rolls will throw light on certain points, and occasionally we find lords appealing to them successfully in order to upset the tenants' claims. But on many matters there is no guide but tradition; the exponents of tradition are the ancient inhabitants; the lord has to ask them to expound it, as he does the tenants of Bushey. Can we doubt that this was a powerful check on autocratic action on his part? Lords come and go. But the custom of the manor endures, and probably loses nothing in the telling.

[251] Some copyholders, who held land which was not "customary land" but part of the demesne or the waste, were not protected by custom either: for a discussion of this point see below, pp.

293?-294.

[252] See below for an example from Crondal, p. 295.

[253] MS. Transcript by A.N. Palmer of "The Presentment and Verdict of the Jury for the Manor of Hewlington," 1620 (Wrexham Free Library, _Ancient Local Records_, vol. ii.): "Which decay (as by the ancient records appeareth) did growe by reason of the great mortalitie and plague which in former tymes had been in the reign of Edward III., and also of the rebellion of Owen Glendower and trouble that thereupon ensued."

[254] _Victoria County History of Gloucestershire_, Social and Economic History, p. 146. For agrarian strikes see below, pp.

329?-331.