Villainage in England: Essays in English Mediaeval History

by Paul Vinogradoff

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 12d.), John Shepherd (fined 12d.).... 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.

The characteristic mixture of different elements which we notice in the criminal jurisdiction of the manorial court may be seen also if we examine its civil jurisdiction. We find the halimot treating in its humble region all the questions of law which may be debated in the courts of common law. Seisin, inheritance, dower, leases, and the like are discussed, and the pleading, though subject to the custom of the manor, takes very much the shape of the contentions before the royal judges. Now this civil litigation is interesting from two points of view: it involves statements of law and decisions as to the relative value of claims. In both respects the parties have to refer to the body of the court, to its assessors or suitors. The influence of the 'country' on the judgment goes further here than in the Common Law Courts, because there is no independent common law to go by, and the custom of the manor has generally to be made out by the manorial tenants themselves. And so a party 'puts himself on his country,' not only in order to decide some issue of fact, but also in regard to points of customary law. Inquisitions are made and juries formed quite as much to establish the jurisprudence of the court as to decide who has the better claim under the said jurisprudence. Theoretically it is the full court which is appealed to, but in ordinary cases the decision rests with a jury of twelve, or even of six. The authority of such a verdict goes back however to the supposed juridical sense or juridical knowledge of the court as a body. Now it cannot be contested that such an organisation of justice places all the weight of the decision with the body of the suitors as assessors. The presiding officer and the lord whom he represents have not much to do in the course of the deliberation. If we may take up the comparison which Mr. Maitland has drawn with German procedure[812], we shall say that the 'Urtheilfinder' have all the best of it in the trial as against the 'Richter.' This 'Richter' is seemingly left with the duties of a chairman, and the formal right to draw up and pronounce a decision which is materially dependent on the ruling of the court. But a special reserve of equity is left with the lord, and in consequence of its operation we find some decisions and sentences altered, or their execution postponed[813]. I have to endorse one more point of Mr. Mainland's exposition, namely, his view of the presentment system as of a gradual modification of the original standing of the manorial suitors as true assessors of the court. Through the influence of the procedure of royal courts, on the one hand, of the stringent classifications of the tenantry in regard to status on the other, the presenters were gradually debased, and legal learning came to maintain that the only judge of a customary court was its steward. But a presentment of the kind described in the manorial rolls vouches for a very independent position of the suitors, and indeed for their prevalent authority in the constitution of the tribunal.

Surrender and admittance.

The conveyancing entries, although barren and monotonous at first sight, are very important, in so far as they show, better perhaps than anything else, the part played by the community and by its testimony in the transmission of rights. It has become a common-place to argue that the practice of surrender and admittance characterises the absolute ownership that the lord has in the land held in villainage, and proceeds from the fact that every holder of servile land is in truth merely an occupier of the plot by precarious tenure. Every change of occupation has to be performed through the medium of the lord who 're-enters' the tenement, and concedes it again as if there had been no previous occupation at all and the new tenant entered on a holding freshly created for his use. None the less, a theory which lays all the stress in the case on the surrender into the hand of the lord, and explains this act from the point of view of absolute ownership, is wrong in many respects.

Meaning of surrender.

To begin with the legal transmission of a free holding, although the element of surrender has as it were evaporated from it, it is quite as much bound up with the fiction of the absolute ownership of the lord as is the surrender and admittance of villains and copyholders. The ceremony of investiture had no other meaning but that of showing that the true owner re-entered into the exercise of his right, and every act of homage for land was connected with an act of feoffment which, though obligatory, first by custom and then by law, was nevertheless no mere pageant, because it gave rise to very serious claims of service and casual rights in the shape of wardship, marriage, and the like. The king who wanted to be everybody's heir was much too consequent an exponent of the feudal doctrine, and his successors were forced into a gentler practice. But the fiction of higher ownership was lurking behind all these contentions of the upper class quite as much as behind the conveyancing ceremonies of the manorial court. And in both cases the fiction stretched its standard of uniformity over very different elements: allodial ownership was modified by a subjection to the 'dominium directum,' on the one hand; leases and precarious occupation were crystalised into tenure, on the other. It is not my object to trace the parallel of free and peasant holding in its details, but I lay stress on the principle that the privileged tenure involved the notion of a personal concession quite as much as did the base tenure, and that this fundamental notion made itself felt both in conveyancing formalities and in practical claims.

The rod and the festuca.

I am even inclined to go further: it seems to me that the manorial ceremony of surrender and admittance, as considered from the point of view of legal archæology, may have gone back to a practice which has nothing to do with the lord's ownership, although it was ultimately construed to imply this notion. The tenant enfeoffed of his holding on the conditions of base tenure was technically termed tenant by copy of court roll or tenant by the rod—par la verge. This second denomination is connected with the fact that, in cases of succession as well as in those of alienation, the holding passed by the ceremonial action of the steward handing a rod to the person who was to have the land. Now, this formality looks characteristic enough; it is exactly the same as the action of the 'salman' in Frankish law where the transmission of property is effected by the handing of a rod called 'festuca.' The important point is, that the 'salman' was by no means a representative of lordship or ownership, but the necessary middleman prescribed by customary law, in order to give the transaction its consecration against all claims of third persons. The Salic law, in its title 'de affatomire,' presents the ceremony in a still earlier stage: when a man wants to give his property to another, he has to call in a middleman and witnesses; into the hands of this middleman he throws a rod to show that he relinquishes all claim to the property in question. The middleman then behaves as owner and host, and treats the witnesses to a meal in the house and on the land which has been entrusted to him. The third and last act is, that this intermediate person passes on the property to the donee designated by the original owner, and this by the same formal act of throwing the rod[814]. The English practice has swerved from the original, because the office of the middleman has lapsed into the hands of the steward. But the characteristic handing of the rod has well preserved the features of the ancient 'laisuwerpitio' ('the throwing on to the bosom'), and, indeed, it can hardly be explained on any other supposition but that of a survival of the practice. I beg the reader to notice two points which look decisive to me: the steward when admitting a tenant does not use the rod as a symbol of his authority, because he does not keep it—he gives it to the person admitted. Still more, in the surrender the rod goes from the peasant-holder to the steward. Can there be a doubt that it symbolises the plot of land, or rather the right over the plot, and that in its passage from hand to hand there is nothing to show that the steward as middleman represents absolute ownership, while the peasants at both ends are restricted to mere occupation on sufferance[815]? Is it necessary to explain that these ceremonial details are not trifles from a historical point of view? Their arrangement is not a matter of chance but of tradition, and if later generations use their symbols mechanically, they do not invent them at haphazard. Symbols and ceremonies are but outward expressions of ideas, and therefore their combinations are ruled by a certain logic and are instinct with meaning. In a sense their meaning is deeper and more to be studied than that supplied by theories expressed in so many words: they give an insight into a more ancient order of things. It may be asked, in conclusion, why a Frankish form should be found prevalent in the customary arrangement of the English manorial system? The fact will hardly appear strange when we consider, firstly, that the symbolical acts of investiture and conveyancing were very similar in Old English and Old Frankish law[816], and that many practices of procedure were imported into England from France, through the medium of Normandy. It is impossible at the present date to trace conclusively the ceremonies of surrender and admittance in all their varieties and stages of development, but the most probable course of progress seems to have been a passage from symbolical investiture in the folk-law of free English ceorls through the Frankish practice of 'affatomire,' to the feudal ceremony of surrender and admittance by the steward.