Three conclusions have been arrived at in this chapter.

1. The home-farm, though the necessary central unit of the manorial group, did not, as a rule, occupy a large area, and the break-up of feudalism tended to lessen its extension in favour of the dependent population.

2. The peculiar feature of medieval husbandry--the grouping of small households round an aristocratic centre--entailed the existence of a large cla.s.s engaged in collecting revenue, superintending work, and generally conducting the machinery by which the tributary parts were joined with their centre.

3. The position of free tenements within the manor may be ascribed to one of three causes: (_a_) they have been the tenements of serfs, but, in consequence either of some general commutation or of special feoffments, they have become free; or (_b_) their connexion with the manor has all along been rather a matter of jurisdiction than a matter of proprietary right, that is to say, they form part of the manor chiefly because they are within the scope of the manorial court; or (_c_) they represent free shares in a village community upon which the manorial structure has been superimposed.

CHAPTER V.

THE MANORIAL COURTS.

[The village community.]

The communal organisation of the village is made to subserve the needs of manorial administration. We feel naturally inclined to think and to speak of the village community in opposition to the lord and to notice all points which show its self-dependent character. But in practice the inst.i.tution would hardly have lived such a long life and played such a prominent part if it had acted only or even chiefly as a bulwark against the feudal owner. Its development has to be accounted for to a great extent by the fact that lord and village had many interests in common.

They were natural allies in regard to the higher manorial officers. The lord had to manage his estates by the help of a powerful ministerial cla.s.s, but there was not much love lost between employers and administrators, and often the latent antagonism between them broke out into open feuds. If it is always difficult to organise a serviceable administration, the task becomes especially arduous in a time of undeveloped means of communication and of weak state control. It was exceedingly difficult to audit accounts and to remove bad stewards. The strength and self-government of the village group appeared, from this point of view, as a most welcome help on the side of the owner[765]. He had practically to surrender his arbitrary power over the peasant population and their land, he had to conform to fixed rules as to civil usage, manorial claims and distribution of territory; but the common standards established by custom did not only hamper his freedom of disposition, they created a basis on which he could take his stand above and against his stewards. He had precise arrangements to go by in his supervision of his ministers, and there was something more than his own interest and energy to keep guard over the maintenance of these forms: the village communities were sure to fight for them from beneath. The facilities for joint action and acc.u.mulation of strength derived from communal self-government vouched indirectly for the preservation of the chief capital invested by the lord in the land: it was difficult for the steward to destroy the economic stays of the villainage.

[The village and the manorial officers.]

There are many occasions when the help rendered by the village communities to the lord may be perceived directly. I need hardly mention the fact that the surveys, which form the chief material of our study, were compiled in substance by sworn inquests, the members of which were considered as the chief representatives of the community, and had to give witness to its lore. The great monastic and exchequer surveys do not give any insight into the mode of selection of the jurors: it may be guessed with some probability that they were appointed for the special purpose, and chosen by the whole court of the manor. In some cases the ordinary jurors of the court, or chief pledges, may have been called upon to serve on the inquest. There is another point which it is impossible to decide quite conclusively, namely, whether questions about which there was some doubt or the jurors disagreed were referred to the whole body of the court. But, although we do not hear of such instances in our great surveys, it is surely an important indication that the extant court-rolls constantly speak of the whole court deciding questions when the verdict of ordinary jurors seemed insufficient. And such reserved cases were by no means restricted to points of law; very often they concerned facts of the same nature as those enrolled in the surveys[766].

[Village officers.]

On a parallel with the stewards and servants appointed by the lord, although in subordination to them, appear officers elected by the village. As we have seen, the manorial beadle was matched by the communal reeve, and a like contrast is sometimes found on the lower degrees[767]. In exceptional cases the lord nominates the reeve, although he still remains the chief representative of village interests and the chief collector of services. But in the normal course the office was elective, and curious intermediate forms may be found. For instance, the village selects the messarius (hayward), and the lord may appoint him reeve[768]. This is a point, again, which shows most clearly the intimate connexion between the interests of the lord and those of the village. The peasants become guarantors for the reeve whom they chose. A formula which comes from Gloucester Abbey requires, that only such persons be chosen as have proved their capacity to serve by a good conduct of their own affairs: all shortcomings and defects are to be made good ultimately by the rural community that elected the officer, and no excuses are to be accepted unless in cases of exceptional hardship[769]. The economic tracts of the thirteenth century state the same principle in even a more explicit manner.

[Communal liability.]

From the manorial point of view the whole village is responsible for the collection of duties. There are payments expressly imposed on the whole. Such is the case with the yearly auxilium or donum. The part.i.tion of these between the householders is naturally effected in a meeting of the villagers[770]. Most services are laid on the virgaters separately.

But they are all held answerable for the regularity and completeness with which every single member of the community performs his duties. As to free holdings, it is sometimes noticed especially to what extent they are subjected to the general arrangement: whether they partic.i.p.ate with the rest in payments, and whether the tenants have to work in the same way as the villains[771]. Very often the doc.u.ments point out that such and such a person ought to take part in certain obligations but has been exempted or fraudulently exempts himself, and that the village community has to bear a relative increase of its burdens[772]. A Glas...o...b..ry formula orders the steward to make inquiries about people who have been freed from the performance of their services in such a way that their responsibility has been thrown on the village[773].

But it would be very wrong to a.s.sume that the rural community could act only in the interest of the lord. Its solidarity is recognised in matters which do not concern him, or even which call forth an opposition between him and the peasantry.

[Village and manor.]

I have already spoken of the curious fact that the village is legally recognised as a unit, separated from the manor although existing within it. When the reeve and the four men attend the sheriff's tourn or the eyre, they do not represent the lord only, but also the village community. Part of their expenses are borne by the lord and part by their fellow villagers[774]. The doc.u.ments tell us of craftsmen who have to work for the village as well as for the lord[775]. On a parallel with services due to the landowner, we find sometimes kindred services reserved for the village community[776]. If a person has been guilty of misdemeanours and is subjected to a special supervision, this supervision applies to his conduct in regard both to the lord and to the fellow villagers[777]. No doubt the relations of the village to its lord are much more fully described in the doc.u.ments than the internal arrangement of the community, but this could not be otherwise in surveys compiled for the use of lords and stewards. Even the chance indications we gather as to these internal arrangements are sufficient to give an insight into the powerful ties of the village community.

[The village as a juristic person.]

Indeed, the rural settlement appears in our records as a 'juridical person.' The Court Rolls of Brightwaltham, edited for the Selden Society by Mr. Maitland, give a most beautiful example of this. The village of Brightwaltham enters into a formal agreement with the lord of the manor as to some commons. It surrenders its rights to the lord in regard to the wood of Hemele, and gets rid in return of the rights claimed by the lord in Estfield and in a wood called Trendale[778]. Nothing can be more explicit: the village acts as an organised community; it evidently has free disposition as to rights connected with the soil; it disposes of these rights not only independently of the lord, but in an exchange to which he appears as a party. We see no traces of the rightless condition of villains which is supposed to be their legal lot, and a powerful community is recognised by the lord in a form which bears all the traits of legal definition. In the same way the annals of Dunstable speak of the seisin of the township of Toddington[779], and of a feoffment made by them on behalf of the lord.

I have only to say in addition to this summing up of the subject, that the quasilegal standing of the villains in regard to the lord appears with special clearness when they stand arrayed against him as a group and not as single individuals. We could guess as much on general grounds, but the self-dependent position a.s.sumed by the 'communitas villanorum' of Brightwaltham is the more interesting, that it finds expression in a formal and recorded agreement.

[The village as a farmer.]

We catch a glimpse of the same phenomenon from yet another point of view. It is quite common to find entire estates let to farm to the rural community settled upon them[780]. In such cases the mediation of the bailiff might be dispensed with; the village entered into a direct agreement with the lord or his chief steward and undertook a certain set of services and payments, or promised to give a round sum. Such an arrangement was profitable to both parties. The villains were willing to pay dearly in order to free themselves from the bailiff's interference with their affairs; the landowner got rid of a numerous and inconvenient staff of stewards and servants; the rural life was organised on the basis of self-government with a very slight control on the part of the lord. Such agreements concern the general management of manors as well as the letting of domain land or of particular plots and rights[781]. Of course there was this great disadvantage for the lord, that the tie between him and his subjects was very much loosened by such arrangements, and sometimes he had to complain that the conditions under which the land was held were materially disturbed under the farmer-ship of the village. It is certain, that in a general way this mode of administration led to a gradual improvement in the social status of the peasantry.

[The village and agricultural arrangements.]

One great drawback of investigations into the history of medieval inst.i.tutions consists in the very incomplete manner in which the subject is usually reflected in the doc.u.ments. We have to pick up bits of evidence as to very important questions in the midst of a vast ma.s.s of uninteresting material, and sometimes whole sides of the subject are left in the shade, not by the fault of the inquirer, but in consequence of disappointing gaps in the contemporary records. Even conveyancing entries, surrenders, admittances, are of rare occurrence on some of the more ancient rolls, and the probable reason is, that they were not thought worthy of enrolment[782]. As for particulars of husbandry they are almost entirely absent from the medieval doc.u.ments, and it is only on the records of the sixteenth and yet later centuries that we have to rely when we look for some direct evidence of the fact that the manorial communities had to deal with such questions[783]. And so our knowledge of these inst.i.tutions must be based largely on inference. But even granting all these imperfections of the material, it must be allowed that the one side of manorial life which is well reflected in the doc.u.ments--the juridical organisation of the manor--affords very interesting clues towards an understanding of the system and of its origins.

[Collegiate decisions and seignorial power.]

Let us repeat again, that the management of the manor is by no means dependent on capricious and onesided expressions of the lord's will. On the contrary, every known act of its life is connected with collegiate decisions. Notwithstanding the absolute character of the lord with regard to his villains taken separately, he is in truth but the centre of a community represented by meetings or courts. Not only the free, but also the servile tenantry are ruled in accordance with the views and customs of a congregation of the tenants in their divers cla.s.ses. There can be no doubt that the discretion of the lord was often stretched in exceptional cases, that relations based on moral sense and a true comprehension of interests often suffered from violence and encroachment. But as a general rule, and with unimportant exceptions, the feudal system is quite as much characterised by the collegiate organisation of its parts as by their monarchical exterior. The manorial courts were really meetings of the village community under the presidency of the lord or of his steward.

[Village Courts.]

It is well known that later law recognises three kinds of seignorial courts: the Leet, the Court Baron, and the Customary Court. The first has to keep the peace of the King, the others are concerned with purely manorial affairs. The Leet appears in possession of a police and criminal jurisdiction in so far as that has not been appropriated by the King's own tribunals--its parallel being the sheriff's tourn in the hundred. The Court Baron is a court of free tenants entrusted with some of the conveyancing and the petty litigation between them, and also with the exercise of minor franchises. The Customary Court has in its charge the unfree population of the manor. In keeping with this division the Court Baron consists according to later theory of a body of free suitors which is merely placed under the presidency of the steward, while in the Customary Court the steward is the true and only judge, and the copyholders, customary tenants or villains, around him are merely called up as presenters.

[Court Leet.]

The masterly investigations of Mr. Maitland, from which any review of the subject must start, have shown conclusively, that this latter doctrine, as embodied in c.o.ke, for instance, draws distinctions and establishes definitions which were unknown to earlier practice. The Leet became a separate inst.i.tution early enough, although its name is restricted to one province--Norfolk--even at the time of the Hundred Rolls[784]. The foundation of the court was laid by the frank-pledge system and the necessity of keeping it in working order. We find the Leet Court sometimes under the names 'Curia Visus franci plegii,' or 'Visus de borchtruning[785],' and it appears then as a more solemn form of the general meeting. It is held usually twice a year to register all the male population from twelve years upwards, to present those who have not joined the t.i.things, and sometimes to elect the heads or representatives of these divisions--the 'Capitales plegii[786].'

Sometimes the t.i.thing coincides with the township, is formed on a territorial basis, as it were, so that we may find a village called a t.i.thing[787]. This leads to the inference, that the grouping into tens was but an approximate one, and this view is further supported by the fact that we hear of bodies of twelve along with those of ten[788].

[View of Frank-pledge.]

As to attending the meeting, a general rule was enforced to that effect, that the peasantry must attend in person and not by reason of their tenure[789]. But as it was out of the question to drive all the men of a district to the manorial centres on such days, exceptions of different kinds are frequent[790]. Besides the women and children, the personal attendants of the lord get exempted, and also shepherds, ploughboys, and men engaged in driving waggons laden with corn. Servants and aliens were considered as under the pledge of the person with whom they were staying.

[Communal accusation.]

The aim of its whole arrangement was to ensure the maintenance of peace, and therefore everybody was bound on entering the t.i.thing to swear, not only that he would keep the peace, but that he would conceal nothing which might concern the peace[791]. It is natural that such a meeting as that held for the view of frank-pledge should begin to a.s.sume police duties and a certain criminal jurisdiction. Mr. Maitland has shown how, by its intimate connexion with the sheriff's tourn, the inst.i.tution of frank-pledge was made to serve the purpose of communal accusation in the time of Henry II. The a.s.size of Clarendon (1166) gave the impulse in regard to the Sheriff's Court, and private lords followed speedily on the same line, although they could not copy the pattern in all its details, and the system of double presentment described by Britton and Fleta proved too c.u.mbersome for their small courts with only a few freeholders on them. In any case the jurisdiction of the Court Leet is practically formed in the twelfth century, and the Quo Warranto inquiries of the thirteenth only bring out its distinctions more clearly[792].

[Court baron and customary court.]

The questions as to the opposition between Court Baron and Customary Court are more intricate and more important. Mr. Maitland has collected a good deal of evidence to prove that the division did not exist originally, and that we have before us in the thirteenth century only one strictly manorial court, the 'halimotum.' I may say, that I came to the same conclusion myself in the Russian edition of the present work quite independently of his argument. Indeed a somewhat intimate acquaintance with the early Court Rolls must necessarily lead to this doctrine. If some distinctions are made, they touch upon a difference between ordinary meetings and those which were held under exceptional circ.u.mstances and attended by a greater number of suitors than usual.

The expression 'libera curia' which meets us sometimes in the doc.u.ments is an exact parallel with that of 'free gallows,' and means a court held freely by the lord and not a court of free men. Mr. Maitland adds, that he has found mention of a court of villains and one of knights, but that he never came across a court of barons in the sense given in later jurisprudence to the term 'Court Baron.' Here I must put in a trifling qualification which does not affect his main position in the least. The Introduction to the Selden Society's second volume, which is our greatest authority on this subject, mentions a case when the halimot was actually divided on the principle laid down by c.o.ke and later lawyers generally. I mean the case of Steyning, where the Abbot holds a separate court for free tenants and another for his villains. The instance belongs to the time of the Edwards, but it is marked as an innovation and a bad one[793]. It shows, however, that the separation of the courts was beginning to set in. The Steyning case is not quite an isolated one.

I have found in the Hundred Rolls the expression _Sockemanemot_ to designate a court attended by free sokemen[794], and it may be suggested that the formation of the so-called Court Baron may have been facilitated by the peculiar const.i.tution and customs of those courts where the unfree element was almost entirely absent. The Danish shires and Kent could not but exercise a certain influence on the adjoining counties. However this might be, the general rule is, undoubtedly, that no division is admitted, and that all the suitors and affairs are concentrated in the one manorial court--the _halimot_.

[The halimot.]

It met generally once every three weeks, but it happens sometimes that it is called together without a definite limit of time at the pleasure of the lord[795]. Cases like that of the manors of the Abbey of Ramsey, in which the courts are summoned only twice a year, are quite exceptional, and in the instance cited the fact has to be explained by the existence of an upper court for these estates, the court of the honour of Broughton[796]. The common suitors are the peasants living within the manor--the owners of holdings in the fields of the manor. In important trials, when free men are concerned, or when a thief has to be hanged, suitors are called in from abroad--mostly small free tenants who have entered into an agreement about a certain number of suits to the court[797]. These foreign suitors appear once every six weeks, twice a year, for special trials upon a royal writ, for the hanging of thieves[798], etc. The duty of attending the court is constantly mentioned in the doc.u.ments. It involved undoubtedly great hardships, expense, and loss of time: no wonder that people tried to exempt themselves from it as much as possible[799]. Charters relating to land provide for all manner of cases relating to suit of court. We find it said, for instance, that a tenant must make his appearance on the next day after getting his summons, even if it was brought to him at midnight[800]. When a holding was divided into several parts, the most common thing was that one suit remained due from the whole[801]. All these details are by no means without importance, because they show that fiscal reasons had as much to do with the arrangement of these meetings as real interests: every court gave rise to a number of fines from suitors who had made default.

[Procedure of the halimot.]

The procedure of the halimot was ruled by ancient custom. All foreign elements in the shape of advocates or professional pleaders were excluded. Such people, we are told by the manorial instructions, breed litigation and dead-letter formalism, whereas trials ought to be conducted and judged according to their substance[802]. Another ceremonial peculiarity of some interest concerns the place where manorial courts are held. It is certain that the ancient gemots were held in the open air, as Mr. Gomme shows in his book on early folk-mots.

And we see a survival of the custom in the meeting which used to be held by the socmen of Stoneleigh on Motstowehill[803]. But in the feudal period the right place to hold the court was the manorial hall. We find indeed that the four walls of this room are considered as the formal limit of the court, so that a man who has stept within them and has then gone off without sufficient reason is charged with contempt of court[804]. Indeed, the very name of 'halimot' can hardly be explained otherwise than as the moot held in the hall[805]. The point is of some interest, because the hall is not regarded as a purely material contrivance for keeping people protected against the cold and the rain, but appears in close connexion with the manor, and as its centre and symbol.

[The halimot and agriculture.]

We hear very little of husbandry arrangements made by the courts[806], and even of the repart.i.tion of duties and taxes[807]. Entries relating to the election of officers are more frequent[808], but the largest part of the rolls is taken up by legal business of all sorts.

[Presentments.]

The entire court, and sometimes a body of twelve jurors, present those who are guilty of any offence or misdemeanour. Ploughmen who have performed their ploughing on the lord's land badly, villains who have fled from the fee and live on strange soil, a man who has not fulfilled some injunction of the lord, a woman who has picked a lock appended to the door of her cottage by a manorial bailiff, an inveterate adulterer who loses the lord's chattels by being fined in the ecclesiastical courts--all these delinquents of very different kinds are presented to be punished, and get amerced or put into the stocks, according to the nature of their offences. It ought to be noticed that an action committed against the interests of the lord is not punished by any onesided act of his will, or by the command of his steward, but treated as a matter of legal presentment. The negligent ploughman is not taken to task directly by the bailiff or any other overseer, but is presented as an offender by his fellow-peasants, and according to strict legal formality. On the other hand, the entries are worded in such a way that the part played by the court is quite clear only as to the presenting of misdeeds, while the amercement or punishment is decreed in some manner which is not specified exactly. We read, for instance, in a roll of the Abbey of Bec how 'the court has presented that Simon Combe has set up a fence on the lord's land. Therefore let it be abated.... The court presented that the following had encroached on the lord's land, to wit, William Cobbler, Maud Robins, widow (fined 12_d._), John Shepherd (fined 12_d._).... Therefore they are in mercy[809].' Who has ordered the fence to be thrown down, and who has imposed the fines on the delinquents? The most natural inference seems to be that the penalties were imposed by the lord or the presiding officer who represented him in the court. But it is by no means impossible that the court itself had to decide on the penalty or the amount of the amercement after first making the presentment as to the fact. Its action would merely divide itself into two independent decisions. Such a procedure would be a necessity in the case of a free tenant who could not be fined at will; and there is nothing to show that it was entirely different in regard to the servile tenantry. When the lord interferes at pleasure this is noted as an exceptional feature[810]. It is quite possible, again, that the amercement was imposed on the advice or by a decision of certain suitors singled out from the rest as persons of special credit, as in a case from the same manorial rolls of Bec[811]. It is hardly necessary to draw very precise conclusions, as the functions of the suitors do not appear to have been sharply defined. But for this very reason it would be wrong to speak of the onesided right of the lord or of his representative to impose the penalty.

[Civil jurisdiction.]