But the most important fact remains, that the whole system, though admitting theoretically the difference between personal freedom and personal subjection, works itself out into uniformity on the ground of unfree tenure. Freemen holding in villainage and born villains get mixed up under the same names. The fact has its two sides. On the one hand it detracts from the original rights of free origin, on the other it strengthens the element of order and legality in the relations between lord and peasant. The peasants are _custumarii_ at the worst--they work by custom, even if custom is regulated by the lord"s power. In any case, even a mere a.n.a.lysis of terminological distinctions leads to the conclusion that the simplicity and rigidity of legal contrasts was largely modified by the influence of historical tradition and practical life.
[Rights of the lord.]
[Cla.s.sification.]
Our next object must be to see in what shape the rights of the lord are presented by manorial doc.u.ments. All expressions of his power may be considered under three different heads, as connected with one of the three fundamental aspects of the manorial relation. There were customs and services clearly derived from the _personal subjection of the villain_, which had its historical root in slavery. Some burdens again lay on the _land_, and not on the _person_. And finally, manorial exactions could grow from the _political sway_ conferred by feudal lordship. It may be difficult to distinguish in the concrete between these several relations, and the constant tendency in practice must have been undoubtedly directed towards mixing up the separate threads of subjection. Still, a general survey of manorial rights has undoubtedly to start from these fundamental distinctions.
[Sale of villains.]
There has been some debate on the question whether the lord could sell his villains. It has been urged that we have no traces of such transactions during the feudal period, and that therefore personal serfdom did not exist even in law[293]. It can be pointed out, on the other side, that deeds of sale conveying villains apart from their tenements, although rare, actually exist. The usual form of enfranchis.e.m.e.nt was a deed of sale, and it cannot be argued that this treatment of manumission is a mere relic of former times, because both the Frank and the Saxon manumissions of the preceding period a.s.sume a different shape; they are not effected by sale. The existing evidence ent.i.tles one to maintain that a villain could be lawfully sold, with all his family, his _sequela_, but that in practice such transactions were uncommon[294]. The fact is a most important one in itself; the whole aspect of society and of its work would have been different if the workman had been a saleable commodity pa.s.sing easily from hand to hand.
Nothing of the kind is to be noticed in the medieval system. There is no slave market, and no slave trade, nothing to be compared with what took place in the slave states of North America, or even to the restricted traffic in Russia before the emanc.i.p.ation. The reason is a curious one, and forcibly suggested by a comparison between the cases when such trade comes into being, and those when it does not. The essential condition for commercial transfer is a protected market, and such a market existed more or less in every case when men could be bought and sold. An organised state of some kind, however slightly built, is necessary as a shelter for such transfer. The feudal system proved more deficient in this respect than very raw forms of early society, which make up for deficiencies in State protection by the facilities of acquiring slaves and punishing them. The landowner had enough political independence to prevent the State from exercising an efficient control over the dependent population, and for this very reason he had to rely on his own force and influence to keep those dependents under his sway. Personal dependence was locally limited, and not politically general, if one may use the expression. It was easy for the villain to step out of the precincts of bondage; it was all but impossible for the lord to treat his man as a transferable chattel. The whole relation got to be regulated more by internal conditions than by external pressure, by a customary _modus vivendi_, and not by commercial and state-protected compet.i.tion. This explains why in some cases political progress meant a temporary change for the worse, as in some parts of Germany and in Russia: the State brought its extended influence to bear in favour of dependence, and rendered commercial transactions possible by its protection. In most cases, however, the influence of moral, economical, and political conceptions made itself felt in the direction of freedom, and we have seen already that in England legal doctrine created a powerful check on the development of servitude by protecting the actual possession of liberty, and throwing the burden of proof in questions of status on the side contending against such liberty.
[Merchet.]
But not all the consequences of personal servitude could be removed in the same way by the conditions of actual life. Of all manorial exactions the most odious was incontestably the _merchetum_, a fine paid by the villain for marrying his daughter[295]. It was considered as a note of servile descent, and the man free by blood was supposed to be always exempted from it, however debased his position in every other respect.
Our authorities often allude to this payment by the energetic expression "buying one"s blood" (servus de sanguine suo emendo). It seems at first sight that one may safely take hold of this distinction in order to trace the difference between the two component parts of the villain cla.s.s. In the status of the socman, developed from the law of Saxon free-men, there was usually nothing of the kind. The _maritagium_ of military tenure of course has nothing in common with it, being paid only by the heiress of a fee, and resulting from the control of the military lord over the land of his retainer. The _merchetum_ must be paid for every one of the daughters, and even the granddaughters of a villain; it had nothing to do with succession, and sprang from personal subjection.
When the bride married out of the power of the lord a new element was brought to bear on the case: the lord was ent.i.tled to a special compensation for the loss of a subject and of her progeny[296]. When the case is mentioned in manorial doc.u.ments, the fine gets heightened accordingly, and sometimes it is even expressly stated that an arbitrary payment will be exacted. The fine for incontinence naturally connects itself with the merchet, and a Glas...o...b..ry manorial instruction enjoins the Courts to present such cases to the bailiffs; the lord loses his merchet from women who go wrong and do not get married[297].
[Origin and modifications of merchet.]
Such is the merchet of our extents and Court rolls. As I said, it has great importance from the point of view of social history. Still it would be wrong to consider it as an unfailing test of _status_. Although it is often treated expressly as a note of serfdom[298], some facts point to the conclusion that its history is a complex one. In the first place this merchet fine occurs in the extents sporadically as it were.
The Hundred Rolls, for instance, mention it almost always in Buckinghamshire, and in some hundreds of Cambridgeshire. In other hundreds of this last county it is not mentioned. However much we lay to the account of casual omissions of the compilers, they are not sufficient to explain the general contrast. It would be preposterous to infer that in the localities first mentioned the peasants were one and all descended from slaves, and that in those other localities they were one and all personally free. And so we are driven to the inference, that different customs prevailed in this respect in places immediately adjoining each other, and that not all the feudal serfs descended from Saxon slaves paid merchet.
If, on the one hand, not all the serfs paid merchet, on the other there is sufficient evidence to show that it was paid in some cases by free people. A payment of this kind was exacted sometimes from free men in villainage, and even from socage tenants. I shall have to speak of this when treating of the free peasantry; I advert to the fact now in order to show that the most characteristic test of personal servitude does not cover the whole ground occupied by the cla.s.s, and at the same time spreads outside of its boundary.
This observation leads us to several others which are not devoid of importance. As soon as the notion arose that personal servitude was implied by the payment of merchet,--as soon as such a notion got sanctioned by legal theory, the fine was extended in practice to cases where it did not apply originally. We have direct testimony to the effect that feudal lords introduced it on their lands in places where it had never been paid[299], and one cannot help thinking that such administrative acts as the survey of 1279-1280, the survey represented by the Hundred Rolls, materially helped such encroachments. The juries made their presentments in respect of large ma.s.ses of peasantry, under the preponderating influence of the gentry and without much chance for the verification of particular instances. The description was not false as a whole, but it was apt to throw different things into the same mould, and to do it in the interest of landed proprietors. Again, the variety of conditions in which we come across the merchet, leads us to suppose that this term was extended through the medium of legal theory to payments which differed from each other in their very essence: the commutation of the "jus primae noctis," the compensation paid to the lord for the loss of his bondwoman leaving the manor, and the fine for marriage to be levied by the township or the hundred, were all thrown together. Last, but not least, the vague application of this most definite of social tests corroborates what has been already inferred from terminology, namely, that the chief stress was laid in all these relations, not on legal, but on economic distinctions. The stratification of the cla.s.s and the determination of the lord"s rights both show traits of legal status, but these traits lose in importance in comparison with other features that have no legal meaning, or else they spread over groups and relations which come from different quarters and get bound up together only through economic conditions.
[Servile customs.]
The same observations hold good in regard to other customs which come to be considered as implying personal servitude[300]. Merchet was the most striking consequence of unfreedom, but manorial doc.u.ments are wont to connect it with several others. It is a common thing to say that a villain by birth cannot marry his daughter without paying a fine, or permit his son to take holy orders, or sell his calf or horse, that he is bound to serve as a reeve, and that his youngest son succeeds to the holding after his death[301]. This would be a more or less complete enumeration, and I need not say that in particular cases sometimes one and sometimes another item gets omitted. The various pieces do not fit well together: the prohibition against selling animals is connected with disabilities as to property, and not derived directly from the personal tie[302]; as for the rule of succession, it testifies merely to the fact that the so-called custom of Borough English was most widely spread among the unfree cla.s.s. The obligation of serving as a reeve or in any other capacity is certainly derived from the power of a lord over the person of his subject; he had it always at his discretion to take his man away from the field, and to employ him at pleasure in his service.
Lastly, the provision that the villain may not allow his son to receive holy orders stands on the same level as the provision that he may not give his daughter in marriage outside the manor: either of these prohibited transactions would have involved the loss of a subject.
[Control over the movements of the peasantry.]
We must place in the same category all measures intended to prevent directly or indirectly the pa.s.sage of the peasantry from one place to the other. The instructions issued for the management of the Abbot of Gloucester"s estates absolutely forbid the practice of leaving the lord"s land without leave[303]. Still, emigration from the manor could not be entirely stopped; from time to time the inhabitants wandered away in order to look out for field-work elsewhere, or to take up some craft or trade. In this case they had to pay a kind of poll-tax (chevagium), which was, strictly speaking, not rent: very often it was very insignificant in amount, and was replaced by a trifling payment in kind, for instance, by the obligation to bring a capon once a year[304]. The object was not so much to get money as to retain some hold over the villain after he had succeeded in escaping from the lord"s immediate sway. There are no traces of a systematic attempt to tax and ransom the work of dependents who have left the lord"s territory--nothing to match the thorough subjection in which they were held while in the manor. And thus the lord was forced in his own interest to accept nominal payments, to concentrate his whole attention on the subjects under his direct control, and to prevent them as far as possible from moving and leaving the land. In regulations for the management of estates we often find several paragraphs which have this object in view. Sometimes the younger men get leave to work outside the lord"s possessions, but only while their father remains at home and occupies a holding. Sometimes, again, the licence is granted under the condition that the villain will remain in one of his lord"s t.i.things[305], an obligation which could be fulfilled only if the peasant remained within easy reach of his birth-place. Special care is taken not to allow the villains to buy free land in order to claim their freedom on the strength of such free possession[306]. Every kind of personal commendation to influential people is also forbidden[307].
Notwithstanding all these rules and precepts, every page of the doc.u.ments testifies to frequent migrations from the manors in opposition to the express will of the landowners. The surveys tell of serfs who settle on strange land even in the vicinity of their former home[308].
It is by no means exceptional to find mention of enterprising landlords drawing away the population from their neighbours" manors[309]. The fugitive villain and the settler who comes from afar are a well-marked feature of this feudal society[310].
[Limitations as to property.]
The limitations of rights of property have left as distinct traces in the cartularies as the direct consequences of personal unfreedom. These two matters are connected by the principle that everything acquired by the slave is acquired by his master; and this principle finds both expression and application in our doc.u.ments. On the strength of it the Abbot of Eynsham takes from his peasant land which had been bought by the latter"s father[311]. The case dates from the second half of the fourteenth century, from a time when the social conflict had become particularly acute in consequence of the Black Death, and of the consequent attempts on the part of landlords to stretch their rights to the utmost. But we have a case from the thirteenth century: the Prior of Barnwell quotes the above-mentioned rule in support of a confiscation of his villain"s land[312]. In both instances the principle is laid down expressly, but in other cases peasants were deprived of their property without any formal explanation.
[Heriot.]
Of course, one must look upon such treatment as exceptional. But an important and constant result of the general conception is to be found in some of the regular feudal exactions. The villain has no property of his own, and consequently he cannot transmit property. Strictly speaking, there is no inheritance in villainage. As a matter of fact the peasant"s property did not get confiscated after his death, but the heirs had to surrender a part of it, sometimes a very considerable one.
A difference is made between chattels and land. As to the first, which are supposed to be supplied by the lord, the duty of the heir is especially onerous. On the land of the Bishopric of Lichfield, for instance, he has to give up as _heriot_ the best head of horned cattle, all horses, the cart, the caldron, all woollen cloth, all the bacon, all the swine except one, and all the swarms of bees[313]. The villains of St. Alban"s have to give the best head of cattle, and all house furniture[314]. But in most cases only the best beast is taken, and if there be no cattle on the tenement, then money has to be paid instead[315]. The Cartulary of Battle is exceptionally lenient as to one of the Abbey"s manors[316]: it liberates from all duty of the kind those who do not own any oxen. It sometimes happens, on the other hand, that the payment is doubled; one beast is taken from the late occupier by way of heriot, and the other from his widow for the life interest which is conceded to her after the death of her husband[317]. Such "free bench"
is regulated very differently by different customs. The most common requirement is, that the widow may not marry again and must remain chaste. In Kent the widow has a right to half the tenement for life, even in case of a second marriage; in Oxfordshire, if she marries without the lord"s leave, she is left in possession only during a year and a day[318].
In all these instances, when a second payment arises alongside of the heriot, such a payment receives also the name of heriot because of this resemblance, although the two dues are grounded on different claims. The true heriot is akin in name and in character to the Saxon "here-geat"--to the surrender of the military outfit supplied by the chief to his follower. In feudal times and among peasants it is not the war-horse and the armour that are meant, ox and harness take their place, but the difference is not in the principle, and one may even catch sometimes a glimpse of the process by which one custom shades off into the other. On the possessions of St. Mary of Worcester, for instance, we find the following enactment[319]: Each virgate has to give three heriots, that is a horse, harness, and two oxen; the half-virgate two heriots, that is a harnessed horse and one ox; other holdings give either a horse or an ox. In such connexion the payment has nothing servile about it, and simply appears as a consequence of the fact or a.s.sumption that the landlord has provided his peasant with the necessary outfit for agricultural work. And still the heriot is constantly mentioned along with the merchet as a particularly base payment, and though it might fall on the succession of a free man holding in villainage, it is not commonly found on free land. The fact that this old Saxon incident of dependence becomes in the feudal period a mark of servile tenure, is a fact not without significance.
[Relief.]
It is otherwise with the _relief_ (relevium), the duty levied for the resumption of the holding by the heir: it extends equally to military tenure and to villainage. Although the heriot and relief get mixed up now and then, their fundamental difference is realised by the great majority of our doc.u.ments and well grounded on principle. In one case the chattels are concerned, in the other the tenement; one is primarily a payment in kind, the other a money-fine. As to the amount of the relief the same fluctuations may be traced as in the case of the heriot.
The most common thing is to give a year"s rent; but in some instances the heir must settle with the lord at the latter"s will, or ransom the land as a stranger, that is by a separate agreement in each single case[320]. Fixed sums occur also, and they vary according to the size and quality of the holding[321].
[Political rights.]
On the boundary between personal subjection and political subordination we find the liability of the peasantry to pay _tallage_. It could be equally deduced from the principle that a villain has nothing of his own and may be exploited at will by his master or from the political grant of the power of taxation to the representative of feudal privilege. The payment of arbitrary tallage is held during the thirteenth century to imply a servile status[322]. Such tallage at will is not found very often in the doc.u.ments, although the lord sometimes retained his prerogative in this respect even when sanctioning the customary forms of renders and services. Now and then it is mentioned that the tallage is to be levied once a year[323], although the amount remains uncertain.
As a holder of political power the lord has a right to inflict fines and amercements on transgressors[324]. The Court-rolls are full of entries about such payments, and it seems that one of the reasons why very great stress was laid on attendance at the manorial Courts was connected with the liability to all sorts of impositions that was enforced by means of these gatherings. Tenants had to attend and to make presentments, to elect officers, and to serve on juries; and in every case where there was a default or an irregularity of any kind, fines flowed into the lord"s exchequer.
Lastly, we may cla.s.sify under the head of political exactions, monopolies and privileges such as those which were called _ba.n.a.lites_ in France: they were imposed on the peasantry by the strong hand, although there was no direct connexion between them and the exercise of any particular function of the State. English medieval doc.u.ments often refer to the privileged mill, to which all the villains and sometimes the freemen of the Soke were bound to bring their corn[325]; there is also the manorial fold in which all the sheep of the township had to be enclosed[326]. In the latter case the landlord profited by the dung for manuring his land. Special attention was bestowed on supervising the making of beer: Court-rolls constantly speak of persons fined for brewing without licence. Every now and then we come across the wondrous habit of collecting all the villagers on fixed days and making them drink _Scotale_[327], that is ale supplied by the lord--for a good price, of course.
[Villain tenure.]
Let us pa.s.s now to those aspects of manorial usage which are directly connected with the mode of holding land. I may repeat what I said before, that it would be out of the question to draw anything like a hard and fast line between these different sides of one subject. How intimately the personal relation may be bound up with the land may be gathered, among other things, from the fact that there existed an oath of fealty which in many places was obligatory on villains when entering into possession of a holding. This oath, though connected with tenure, bears also on the personal relation to the lord[328]. The oath of fealty taken by the tenant in villainage differed from that taken by the freeholder in that it contained the words, "I will be justified by you in body and goods"; and again the tenant in villainage, though he swore fealty, did no homage; the relationship between him and his lord was not a merely feudal relationship; the words, "I become your man," would have been out of place, and there could be no thought of the lord kissing his villain. But however intimate the connexion between both aspects of the question, in principle the tenure was quite distinct from the status, and could influence the condition of people who were personally free from any taint of servility.
The legal definition of villainage as unfree tenure does not take into account the services or economic quality of the tenure, and lays stress barely on the precarious character of the holding[329]. The owner may take it away when he pleases, and alter its condition at will. The Abingdon Chronicle tells us[330] that before the time of Abbot Faritius it was held lawful on the manors of the Abbey to drive the peasants away from their tenements. The stewards and bailiffs often made use of this right, if anybody gave them a fee out of greed, or out of spite against the holder. Nor was there any settled mode of succession, and when a man died, his wife and children were pitilessly thrown out of their home in order to make place for perfect strangers. An end was put to such a lawless condition of things by Faritius" reforms: he was very much in want of money, and found it more expedient to subst.i.tute a settled custom for the disorderly rule of the stewards. But he did not renounce thereby any of his manorial rights: he only regulated their application.
The legal feature of base tenure--its insecurity--was not abolished on the Abingdon estates. Our doc.u.ments sometimes go the length of explaining that particular plots are held without any sort of security against dispossession. We find such remarks in the Warwickshire Hundred Rolls for instance[331]. Sometimes the right is actually enforced: in the Cartulary of Dunstable Priory we have the record of an exchange between two landlords, in consequence of which the peasants were removed from eight hides of land by one of the contracting parties[332].
[Control of the lord over the villain"s land.]
The villain is in no way to be considered as the owner of the plot of land he occupies; his power of disposing of it is stinted accordingly, and he is subjected to constant control from the real owner. He cannot fell timber; oaks and elms are reserved to the lord[333]. He cannot change the cultivation of the land of his own accord; it would be out of the question, for instance, to turn a garden-close into arable without asking for a licence[334]. He is bound to keep hedges and ditches in good order, and is generally responsible for any deterioration of his holding. When he enters into possession of it, he has to find a pledge that he will perform his duties in a satisfactory manner[335]. There can be no thought of a person so situated alienating the land by an act of his own will; he must surrender it into the hand of the lord, and the latter grants it to the new holder after the payment of a fine. The same kind of procedure is followed when a tenement is pa.s.sed to the right heir in the lifetime of the former possessor[336]. A default in paying rents or in the performance of services, and any other transgression against the interests of the lord, may lead to forfeiture[337]. The lord takes also tenements into his hand in the way of escheat, in the absence of heirs. Court-rolls constantly mention plots which have been resumed in this way by the lord[338]. The homage has to report to the steward as to all changes of occupation, and as to the measures which are thought necessary to promote the interests of the landowner and of the tenantry[339].
[Tenure by rent considered free; tenure by agricultural work, servile.]
As to the treatment of tenure in manorial doc.u.ments, it is to be noticed that a distinction which has no juridical meaning at all becomes all important in practice. At common law, as has been said repeatedly, the contrast between free land and servile land resolves itself into a contrast between precarious occupation and proprietary right. This contrast is noticed occasionally and as a matter of legal principle by manorial doc.u.ments[340] quite apart from the consequences which flow from it, and of which I have been speaking just now. But in actual life this fundamental feature is not very prominent; all stress is laid on the distinction between land held by rent and land held by labour. In the common phraseology of surveys and manorial rolls, the tenements on which the rent prevails over labour are called "free tenements," and those on the contrary which have to render labour services, bear the names of "servile holdings." This fact is certainly not to be treated lightly as a mere result of deficient cla.s.sification or terminology. It is a very important one and deserves to be investigated carefully.
In the ancient survey of Glas...o...b..ry Abbey, compiled in 1189, the questions to be answered by the jury are enumerated in the following way: "Who holds freely, and how much, and by what services, and by whose warrant, and from what time? Has land which ought to perform work been turned into free land in the time of Bishop Henry, or afterwards? By whose warrant was this change made, and to what extent is the land free?
Is the demesne land in cultivation, or is it given away in free tenure or villain tenure; is such management profitable, or would it be better if this land was taken back by the lord[341]?" The contrast is between land which provides labour and land which does not; the former is unfree, and villain tenure is the tenure of land held by such services; portions of the demesne given away freely may eventually be reclaimed.
The scheme of the survey made in answer to these questions is entirely in keeping with this mode of cla.s.sification. All holdings are considered exclusively from the economic point of view; the test of security and precarious occupation is never applied. It is constantly noticed, on the other hand, whether a plot pays rent or provides labour, whether it can be transferred from one category into the other, on what conditions demesne land has been given to peasants, and whether it is expedient to alter them. Let us take the following case as an instance: John Clerk had in the time of Bishop Henry one virgate in Domerham and holds it now, and another virgate in Stapelham for ten shillings. When he farmed the Domerham manor he left on his own authority the virgate in Stapelham and took half a virgate in Domerham, as it was nearer. This half virgate ought to work and is now free. And the virgate in Stapelham, though it was free formerly, has to work now, after the exchange[342].
The opposition is quite clear, and entirely suited to the list of questions addressed to the jury. The meaning of the terms _free_ and _freedom_ is also brought out by the following example. Anderd Budde holds half a virgate of demesne land, from the time of Bishop Henry, by the same services as all who hold so much. The village has to render as gift twenty-nine shillings and six pence. Six pence are wanting (to complete the thirty shillings?) because Anderd holds more freely than his ancestors used to[343].
Such phraseology is by no means restricted to one doc.u.ment or one locality. In a Ramsey Cartulary we find the following entry in regard to a Huntingdonshire manor: "Of seven hides one is free; of the remaining six two virgates pay rent. The holder pays with the villains; he pays merchet and joins in the boon-work as the villains. The remaining five hides and three virgates are in pure villainage[344]." The gradation is somewhat more complex here than in the Somersetshire instance: besides free land and working land we have a separate division for mixed cases.
But the foundation is the same in both doc.u.ments. Earlier surveys of Ramsey Abbey show the same cla.s.sification of holding into free and working virgates (_liberae_, _ad opus_[345]).
[Terra ad furcam et flagellum.]
In opposition to free service, that is rent, we find both the _villenagium_[346] and the _terra consuetudinaria_ or _customaria_[347], burdened with the usual rural work. Sometimes the doc.u.ment points out that land has been freed or exempted from the common duties of the village[348]; in regard to manorial work the village formed a compact body. The notion which I have been explaining lies at the bottom of a curious designation sometimes applied to base tenure in the earlier doc.u.ments of our period--_terra ad furcam et flagellum_[349], fleyland.
The Latin expression has been construed to mean land held by a person under the lord"s jurisdiction, under his gallows and his whip, but this explanation is entirely false. The meaning is, that a base holding is occupied by people who have to work with pitchfork and flail, and may-be other instruments of agriculture[350], instead of simply paying rent. In view of such a phraseology the same tenement could alternately be considered as a free or a servile one, according to its changing obligations[351]. Some surveys insert two parallel descriptions of duties which are meant to fit both eventualities; when the land is _ad opus_, it owes such and such services; when it is _ad censum_, it pays so much rent. It must be added, that in a vast majority of cases rent-paying land retains some remnants of services, and, _vice versa_, land subjected to village-work pays small rents[352]; the general quality of the holding is made to depend on the prevailing character of the duties.
The double sense in which the terms "free tenure" and "servile tenure"
are used should be specially noticed, because it lays bare the intimate connexion between the formal divisions of feudal law and the conditions of economic reality. I have laid stress on the contrast between the two phraseologies, but, of course, they could not be in use at the same time without depending more or less on each other. And it is not difficult to see, that the legal is a modification of the economic use of terms, that it reduces to one-sided simplicity those general facts which the evidence of every day life puts before us in a loose and complex manner: that land is really free which is not placed in a constant working submission to the manor, in constant co-operation with other plots, similarly arranged to help and to serve in the manor. However heavy the rent, the land that pays it has become independent in point of husbandry, its dependence appears as a matter of agreement, and not an economic tie. When a tenement is for economic purposes subordinated to the general management of the manor, there is almost of necessity a degree of uncertainty in its tenure; it is a satellite whose motions are controlled by the body round which it revolves. On the other hand, mere payments in money look like the outcome of some sort of agreement, and are naturally thought of as the result of contract.
[Custom in the exercise of manorial rights.]
Everything is subject to the will and pleasure of the lord; but this will and pleasure does not find expression in any capricious interference which would have wantonly destroyed order and rule in village life. Under cover of this will, customs are forming themselves which regulate the constantly recurring events of marriage, succession, alienation, and the like. Curious combinations arise, which reflect faithfully the complex elements of village life. An instruction for stewards provides, for instance, that one person ought not to hold several tenements; where such agglomerations exist already they ought to be destroyed, _if it can be done conveniently and honestly_[353]. In one of the manors of St. Paul of London the plots held by the ploughmen are said to be resumable by the lord without any injury to hereditary succession[354]. "The rule of hereditary succession" is affirmed in regard to normal holdings by this very exception. We find already the phrase of which the royal courts availed themselves, when in later days they extended their protection to this base tenure: the tenants hold "by the custom of the manor[355]." On the strength of such custom the life of the unfree peasantry takes a shape closely resembling that of the free population; transactions and rights spring into being which find their exact parallel in the common law of the "free and lawful" portion of the community. Walter, a villain of St. Alban"s, surrenders into the hand of the monastery two curtilages, which are thereupon granted to his daughter and her husband for life, upon condition that after their death the land is to revert to Walter or to his heirs[356]. An Ess.e.x villain claims succession by hereditary right, for himself and his heirs[357]. I have already spoken of the "free bench" to be found equally on free and unfree land. In the same way there exists a parallel to the so-called "Curtesy of England" in the practice of manorial courts; if the son inherits land from his mother during his father"s life, the latter enjoys possession during his life, or, it may be, only until his son comes of age. In view of all this manorial doc.u.ments have to draw a distinction between tenements in villainage and land held at the will of the lord, not in the general, but in the special and literal sense of the term[358]. From a formal point of view, villain tenure by custom obtained its specific character and its name from a symbolical act performed in open Court by the steward; a rod was handed over to the new holder by the lord"s representative, and a corresponding entry made in the roll of the Court. Hence the expression _tenere per virgam aut per rotulum Curie_[359].