Название: Villainage in England: Essays in English Mediaeval History
Автор: Paul Vinogradoff
Издательство: Public Domain
Жанр: Юриспруденция, право
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Services certain on Royal Manors.
If we turn to the court rolls of a manor which is actually in the king's hand and compare them with those of a manor which he has granted to some convent or some private lord, we see hardly any difference between them. The rolls of the manor of Havering at the Record Office, although comparatively late, afford a good insight into the constitution of a manor retained in the king's own hand. They contain a good many writs of right, and though, naturally enough, the tenants do not bring actions against the king, we find an instance in which the king brings an action against his tenant, and pleads before a court which is held in his own name203. This is good proof that the condition of the tenants was by no means dependent on the arbitrary action of the manorial officers. When King Henry II granted Stoneleigh to the Cistercians he displaced a number of 'rustics' from their holdings, and while doing this he recognised their right and enjoined the sheriff of Warwickshire to give them an equivalent for what they had lost in consequence of the grant204. The notion from which all inquiry consequent upon a 'Monstraverunt' starts is always this, that the tenants were holding by certain (i.e. by fixed) services at the time when the manor was in the king's own hand. The certainty is not created by the fact that the manor passes away from the king to some one else; it exists when the land is royal land and therefore cannot be destroyed on land that has been alienated. So true is this that Bracton and Britton give their often cited description of privileged villainage without alluding to the question whether or no the manor is still in the king's hand205; Britton even applies this description primarily to the king's own possessions by his way of stating the law as the direct utterance of the king's command. The well-known fact that the 'ferm' or rent of royal manors was not always fixed, that we constantly hear of an increased rental (incrementum) levied in addition to the old 'ferm' (assisa; redditus antiquitus assisus), can be easily reconciled with this doctrine206. The prosperity of the country was gradually rising; both in agricultural communities and in towns, new tenements and houses, new occupations and revenues were growing, and it was not the interest either of the communities or of the lord to compress this development within an unelastic bond. In principle the increased payments fell on this new growth on the demesne, although this may in some cases have been due to exactions against which the people could remonstrate only in the name of immemorial custom, and only by way of petition since nobody could judge the king. In principle, too, certainty of condition was admitted as to the privileged villains on the king's demesnes207.
Trial of services in 'Monstraverunt'.
This serves to explain the procedure followed by the court when a question of services was raised by a writ of 'Monstraverunt.' The first thing, of course, was to ascertain whether the manor was ancient demesne or not, and for this purpose nothing short of a direct mention in Domesday was held to be sufficient208. When this question had been solved in the affirmative, a jury had to decide what the customs and duties were, by which the ancestors of the plaintiffs held at the time when the crown was possessed of the manor. In principle it was always considered that such had been the services at the time of the Conquest209, but practically, of course, there could be no attempt to examine into such ancient history. The men of King's Ripton actually pleaded back to the time of King Cnut, and maintained that no prescription was available against their rights as no prescription could avail against the king210. The courts naturally declined to go higher than men could remember, but they laid down this limitation entirely as one of practice and not of principle211. Metingham demanded that the claimants should make good their contention even for a single day in Richard Cœur de Lion's time212. The men of Wycle combine both assertions in their contention against Mauger; they appeal to the age of the first Norman kings, but offer to prove the certainty of their services in the reigns of Richard and John213.
Nature of tenancy in ancient demesne.
Now all that has been said hitherto applied to 'the tenants in ancient demesne' indiscriminately, without regard to any diversity of classes among them. Hitherto I have not noticed any such diversity, and in so doing I am warranted by the authorities. Those authorities commonly speak of 'men' or 'tenants in ancient demesne' without any further qualification214. Sometimes the expression 'condition of ancient demesne' also is used. But closer examination shows a variety of classes on the privileged soil, and leads to a number of difficult and interesting problems.
To begin with, the nature of the tenancy in general has been much contested. As to the law of later times Mr. Elton puts the case in this way: 'There is great confusion in the law books respecting this tenure. The copyholders of these manors are sometimes called tenants in ancient demesne, and land held in this tenure is said to pass by surrender and admittance. This appears to be inaccurate. It is only the freeholders who are tenants in ancient demesne, and their land passes by common law conveyances without the instrumentality of the lord. Even Sir W. Blackstone seems to have been misled upon this point. There are however, as a rule, in manors of ancient demesne, customary freeholders and sometimes copyholders at the will of the lord, as well as the true tenants in ancient demesne215.' Now such a description seems strangely out of keeping with the history of the tenure. Blackstone speaks of privileged copyhold as descended from privileged villainage216; and as to the condition in the thirteenth century of those 'men' or 'tenants in ancient demesne' of whom we have been speaking, there can be no doubt. Bracton and his followers lay down quite distinctly that their tenure is villainage though privileged villainage. The men of ancient demesne are men of free blood holding in villainage217. And to take up the special point mentioned by Mr. Elton—conveyance by surrender and admittance is a quite necessary feature of the tenure218: conveyance by charter makes the land freehold and destroys its ancient demesne condition219. But although this is so clear in the authorities of the thirteenth century, there is undoubtedly a great deal of confusion in later law books, and reasons are not wanting which may account for this fact and for the doctrine propounded by Mr. Elton in conformity with certain modern treatises and decisions.
Classes of tenantry.
We may start with the observation, that privileged villains or villain socmen are not the only people to be found on the soil of the ancient demesne. There are free tenants there and pure villains too220. Free socage is often mentioned in these manors, and it is frequently pleaded in order to get a trial transferred to the Common Law Courts. When the question is raised whether a tenement is free or villain socage, the fact that it has been conveyed by feoffment and charter is treated, as has just been pointed out, as establishing its freehold character and subjecting it to the ordinary common law procedureСКАЧАТЬ
201
Britton, i. 221: 'Rois aussi ne porrount rien aliener les dreits de lour coroune ne de lour reaute, qe ne soit repellable par lour successours.'
202
Stoneleigh Reg. 30: 'Nos attendentes, quod huiusmodi alienaciones et consuetudinum mutaciones eciam in nostri et heredum nostrorum preiudicium et exheredacionem cedere possent, si manerium illud in manus nostras aliquo casu deuenerit sustinere nolumus sicut nec debemus manerium illud aut ea que ad illud pertinent aliter immutari quam esse solebant temporibus predictis.'
203
The writs are directed sometimes to the bailiffs of the Archbishop of Canterbury and of the Duke of Albemarle, who had the manor in custody for King Richard II, but in the twenty-third year they are inscribed to the King's bailiffs. (Augmentation Court Rolls, xiv. 38). As to the trial mentioned in the text see App. IX.
204
Stoneleigh Reg. 11 a: 'Precipio tibi quod sine dilacione deliberes Abbati de Stonleia omnes terras et tenuras quas ego dedi et carta mea confirmaui. Et de terra quam rustici uersus calumpniantur et quam ego ei dedi et concessi, inquire si rectum in ea habuerunt et si rectum in ea habent, dona eis rusticis alibi in terra mea excambium ad valenciam.'
205
Bracton, f. 209: 'Ad quemcumque manerium peruenerit.'
206
Madox, Firma Burgi, 54; Pipe Rolls, passim. Cf. Rot. Cur. Regis Ric., p. 15: 'Homines de Kingestone—c. sol. … pro respectu tenendi villam suam ad eandem firmam quam reddere solebant tempore Henrici Regis.'
207
Madox, Exch. 1437, z: 'Homines de Lechton x marcas pro habenda inquisicione per proxima halimota et per legales milites et alios homines de visneto, quas consuetudines ipsi fecerunt tempore Henrici Regis Patris.' (Pipe Roll. 4 John.) Cf. 442, a: 'Homines de Stanleya reddunt compotum de uno palefrido, ut inquiratur per sacramentum legalium hominum, quas consuetudines et quae servitia homines de manerio de Stanleia facere consueverunt Regi Henrico patri Ricardi Regis dum essent in manu sua.' (Pipe Roll, 9 John.)
208
Y.B., Trin., 49 E. III, pl. 8 (Fitzherbert, Abr. Monstrav. 4): '
209
Fitzherbert, Abr. Cause de remover ple, 18 (Y.B., M., 21 Edw. III): '
210
Coram Rege, Tr. 3 Edw. I, m. 14, d: 'Et unde predicti homines (de Kyngesripton) queruntur quod temporibus Cnout regis quo manerium illud fuit in manu dicti antecessoris sui tenuerunt tenementa sua per seruicia subscripta, videlicet reddendi pro qualibet virgata terre 5 solidos, etc. Et omnes antecessores sui tenuissent tenementa sua per predicta seruicia usque ad conquestum Anglie, et a conquestu usque ad tempus regis Henrici aui regis Johannis aui domini regis nunc, usque ad tempus cuiusdam Abbatis de Rameseye Roberti Dogge nomine qui tempore Henrici Regis distrinxit antecessores suos ad dandum relevium pro voluntate sua, etc. Et Abbas dicit quod non debet eis ad hoc breue respondere, quia desicut in narracione sua non faciunt mencionem quod ipsi extitissent in tali statu in quo fuerunt tempore regis Knout, quem statum ipsi clamant habere, tempore aliorum regum de quo memoria haberi possit nec de quo breue de recto currit nec aliqua verificacio per patriam fieri possit.... Et Reginaldus et alii bene cognoscunt quod ipse Abbas et predecessores sui exstiterunt in seysina percipiendi ab ipsis et antecessoribus suis predicta seruicia indebita a tempore predicti Henrici regis. Set desicut istud breue quod conceditur in fauorem dominicorum domini Regis non habet prescriptionem temporis, petunt judicium si [racione?] alicujus longiqui termini debeant ab actione excludi sua.'
211
Y.B., M., 15 Edw. II, p. 455: '
212
Y.B., 21/22 Edw. I, 499 et sqq.
213
Coram Rege, Pasch. 1 Edw. II, m. 26: 'Postquam idem manerium ad manus antecessorum predicti Maugeri deuenit usque ad tempus memorie, videlicet temporibus regum Ricardi, Johannis et statum illum toto tempore predicto pacifice continuaverunt et habuerunt.' Coram Rege, M. 5 Edw. II, m. 77: 'Unde queruntur quod cum ipsi homines et eorum antecessores tempore Regum Anglie progenitorum domini Regis nunc, videlicet tempore Regis Willelmi Conquestoris et Willelmi Regis filii sui et eciam tempore Regis Henrici primi solebant tenere terras suas per quaedam certa seruicia videlicet,' etc.
214
I will here cite Bract. Note-book, pl. 1237, as an instance, although there is hardly any call for quotation on this point.
215
Law of Copyhold, 8. Cf. the same author's Tenures in Kent, 182.
216
Blackstone, Law Tracts, ii., especially pp. 128, 129.
217
Bracton: 'liberi de condicione … tenentes villenagium.' Britton: 'hommes de franc saunc.'
218
Stoneleigh Reg., 75: 'Item si quis de voluntate et assensu domini facto fine cum domino voluerit dare tenementum suum ad opus alicuius, ueniet in curia cum virga et sursum reddet huiusmodi tenementum ad manum domini sine carta ad opus ementis vel cui datur et ballivus domini habitis prius herietis et aliis de iure domino debitis dictum tenementum emptori seu cui dabitur et heredibus suis secundum consuetudinem manerii habendum et tenendum liberabit in (cum
219
Placitorum Abbrev. 233, Berks. Cf. Britton, i. 287, note c.
220
Bracton, f. 7.