Villainage in England: Essays in English Mediaeval History

by Paul Vinogradoff

The court roll.

And now let us take up the second thread of our inquiry into the manorial forms of conveyancing. A tenant by the verge is also a tenant by copy of court roll. The steward who presided at the court had to keep a record of its proceedings, and this record had a primary importance for the servile portion of the community. While the free people could enter into agreements and perform legal acts in their own name and by charter, the villains had to content themselves with ceremonial actions before the court. They were faithful in this respect to old German tradition, while the privileged people followed precedents which may be ultimately traced to a Roman origin. The court roll or record of manorial courts enabled the base tenant to show, for instance, that some piece of land was his although he had no charter to produce in proof of his contention. And we find the rolls appealed to constantly in the course of manorial litigation[817]. But the rolls were nothing else than records of actions in the court and before the court. They could actually guide the decision, but their authority was not independent; it was merely derived from the authority of the court. For this reason the evidence of the rolls, although very valuable, was by no means indispensable. A claimant could go past them to the original fount, that is, to the testimony of the court. And here we must keep clear of a misconception suggested by a first-sight analysis of the facts at hand. It would seem that the verdict of neighbours, to which debateable claims are referred to in the manorial courts, stands exactly on a par with the verdicts of jurymen taken by the judges of the Royal Courts. This is not so, however. It is true that the striving of manorial officers to make the procedure of halimotes as much like the common law procedure as possible, went far to produce similarity between forms of actions, presentments, verdicts and juries, in both sets of tribunals. But nevertheless, characteristic distinctions remained to show that the import of some institutions brought near each other in this way was widely different. I have said already that the peasant suitors of the halimote are appealed to on questions of law as well as on questions of fact. But the most important point for our present purpose is this: the jurors called to substantiate the claim of a party in a trial are mere representatives of the whole court. The testimony of the court is taken indirectly through their means, and very often resort is had to that testimony without the intermediate stage of a jury. Now this is by no means a trifle from the point of view of legal analysis. The grand and petty juries of the common law are means of information, and nothing more. They form no part of the tribunal, strictly speaking; the court is constituted by the judges, the lawyers commissioned by the king, who adopt this method in investigating the facts before them, because a knowledge of the facts at issue, and an understanding of local conditions surrounding them, is supposed to reside naturally in the country where the facts have taken place[818]. Historically the institution is evolved from examinations of witnesses and experts, and has branched off in France into the close formalism of inquisitorial process. The manorial jury, on the other hand, represents the court, and interchanges with it[819]. For this reason, we may speak directly of the court instead of treating of its delegates. And if the verdict of the court is taken, it is not on account of the chance knowledge, the presumable acquaintance of the suitors with facts and conditions, but as a living remembrance of what took place before this same court, or as a re-assertion of its power of regulating the legal standing of the community. The verdict of the suitors is only another form of the entry on the rolls, and both are means of securing the continuity of an institution and not merely of providing information to outsiders. Of course, claims may not be always reduced to such elementary forms that they can be decided by a mere reference to memory, the memory of the constituted body of the court. A certain amount of reasoning and inference may be involved in their settlement, a set of juridical doctrines is necessary to provide the general principles of such reasoning. And in both respects the manorial court is called upon to act. It is considered as the repository of legal lore, and the exponent of its applications. This means that the court is, what its name implies, a tribunal and not a set of private persons called upon to assist a judge by their knowledge of legal details or material facts[820].

Communal testimony.

The whole exposition brings us back to a point of primary importance. The title by which land is held according to manorial custom is derived from communal authority quite as much as from the lord's grant. Without stepping out of the feudal evidence into historical inquiry, we find that civil arrangements of the peasantry are based on acts performed through the agency of the steward, and before the manorial court, which has a voice in the matter and vouches for its validity and remembrance. The 'full court' is noticed in the records as quite as necessary an element in the conveyancing business as the lord and his steward, although the legal theory of modern times has affected to take into account only these latter[821]. Indeed, it is the part assumed by the court which appears as the distinctive, if not the more important factor. A feoffment of land made on the basis of free tenure proceeds from the grantor in the same way as a grant on the conditions of base tenure; freehold comes from the lord, as well as copyhold. But copyhold is necessarily transferred in court, while freehold is not. And if we speak of the presentment of offences through the representatives of townships, as of the practice of communal accusation, even so we have to call the title by which copyhold tenure is created a claim based on communal testimony.

Courts on the ancient demesne.

All the points noticed in the rolls of manors held at common law are to be found on the soil of ancient demesne, but they are stated more definitely there, and the rights of the peasant population are asserted with greater energy. Our previous analysis of the condition of ancient demesne has led us to the conclusion, that it presents a crystallisation of the manorial community in an earlier stage of development than in the ordinary manor, but that the constitutive elements in both cases are exactly the same. For this reason, every question arising in regard to the usual arrangements ought to be examined in the light of the evidence that comes from the ancient demesne.

We have seen that it would be impossible to maintain that originally the steward was the only judge of the manorial tribunal; the whole court with its free and unfree suitors participates materially in the administration of justice, and its office is extended to questions of law as well as to issues of fact. On the other hand, it was clear that the steward and the lord were already preparing the position which they ultimately assumed in legal theory, that in the exercise of their functions they were beginning to monopolise the power of ultimate decision and to restrict the court to the duty of preliminary presentment. The same parties are in presence in the court of ancient demesne, but the right of the suitors has been summed up by legal theory in quite the opposite direction. The suitors are said to be the judges there; legal dogmatism has set up its hard and fast definitions, and drawn its uncompromising conclusions as if all the historical facts had always been arrayed against each other without the possibility of common origins and gradual development. Is it necessary to say that the historical reality was very far from presenting that neat opposition? The ancient demesne suitors are villains in the main, though privileged in many respects, and the lord and steward are not always playing such a subordinate part that one may not notice the transition to the state of things that exists in common law manors. It is curious, anyhow, that later jurisprudence was driven to set up as to the ancient demesne court a rule which runs exactly parallel to the celebrated theory that there must be a plurality of free tenants to constitute a manor. Coke expresses it in the following way: 'There cannot be ancient demesne unless there is a court and suitors. So if there be but one suitor, for that the suitors are the judges, and therefore the demandant must sue at common law, there being a failure of justice within the manor[822].' We shall have to speak of this rule again when treating of classes in regard to manorial organisation. But let us notice, even now, that in this view of the ancient demesne court the suitors are considered as the cardinal element of its constitution. The same notion may be found already in trials of the fourteenth and even of the thirteenth century. A curious case is reported in the Year Books of 11/12 Edw. III[823]. Herbert of St. Quentyn brought a writ of false judgment against John of Batteley and his wife, the judgment having been given in the court of Cookham, an ancient demesne manor. The suitors, or suit-holders as they were called there, sent up their record to the King's Bench, and many things were brought forward against the conduct of the case by the counsel for the plaintiff, the defendant trying to shield himself by pleading the custom of the manor to account for all unusual practices. The judges find, however, that one point at least cannot be defended on that ground. The suitors awarded default against the plaintiff because he had not appeared in person before them, and had sent an attorney, who had been admitted by the steward alone and not in full court. Stonor, C.J., remarks, 'that it is against law that the person who holds the court is not suffered to record an attorney for a plea which will be discussed before him.' The counsel for the plaintiff offer to prove that the custom of the manor did not exclude an attorney appointed before the steward, on condition that the steward should tell it to the suitors in the next court after receiving him. The case is interesting, not merely because it exhibits the suit-holders in the undisputed position of judges, but also because it shows the difficulties created by the presence of the second element of the manorial system, the seignorial element, which would neither fit exactly into an entirely communal organisation nor be ousted from it[824]. The difficulty stands quite on the same line with that which meets us in the common law manor, where the element of the communal assessors has been ultimately suppressed and conjured away, as it were, by legal theory. The results are contradictory, but on the same line, as I say. And the more we go back in time, the more we find that both elements, the lord and the community, are equally necessary to the constitution of the court. In the thirteenth century we find already that the manorial bailiffs are made responsible for the judgment along with the suitors and even before them[825].

The rolls of ancient demesne manors present a considerable variety of types, shading off from an almost complete independence of the suitors to forms which are not very different from those of common law manors. Stoneleigh may be taken as a good specimen of the first class.

The court at Stoneleigh.

The manor was divided into six hamlets, and every one of these consisted of eight virgates of land which were originally held by single socmen; although the regularity of the arrangement seems to have been broken up very soon in consequence of increase of population, extension of the cultivated area, and the sale of small parcels of the holdings. The socmen met anciently to hold courts in a place called Motstowehill, and afterwards in a house which was built for the purpose by the Abbot. The way in which the Register speaks of the admission of a socman to his holding is very characteristic: 'Every heir succeeding to his father ought to be admitted to the succession in his fifteenth year, and let him pay relief to the lord, that is, pay twice his rent. And he will give judgments with his peers the socmen; and become reeve for the collection of the lord's revenue, and answer to writs and do everything else as if he was of full age at common law.' The duty and right to give judgment in the Court of Stoneleigh is emphatically stated on several occasions, and altogether the jurisdictional independence of the court and of its suitors is set before us in the smallest but always significant details. If somebody is bringing a royal close writ of right directed to the bailiffs of the manor it cannot be opened unless in full court. When the bailiff has to summon anybody by order of the court he takes two socmen to witness the summons. Whenever a trial is terminated either by some one's default in making his law or by non-defence the costs are to be taxed by the court. The alienation of land and admittance of strangers are allowed only upon the express consent of the court[826]. In one word, every page of the Stoneleigh Register shows a closely and powerfully organised community, of which the lord is merely a president.