The History of English Law before the Time of Edward I. Frederic William Maitland

is expressed in the later documents was not implied in the earlier.⁵²⁷ We cannot so easily dispose of the evidence that late in the thirteenth century large masses of the tenants believed and sought to prove that their lords had broken the custom and imposed new burdens upon them. They sought to show in case after case that they were living on the ancient demesne of the crown, and that therefore they were protected against any increase of services. Generally they failed; Domesday Book was produced and proved that they had no right to claim the king’s help. The fact remains that they had hoped to prove that the lords were breaking the custom. To this we must add that in many of these cases the lord was a religious house.⁵²⁸ Now there is plenty of evidence that of all landlords the religious houses were the most severe—not the most oppressive, but the most tenacious of their rights; they were bent on the maintenance of pure villein tenure and personal villeinage. The immortal but soulless corporation with her wealth of accurate records would yield no inch, would enfranchise no serf, would enfranchise no tenement. In practice the secular lord was more humane, because he was more human, because he was careless, because he wanted ready money, because he would die. Still it is to the professed in religion that we may fairly look for a high theory of justice, and when we find that it is against them that the peasants make their loudest complaints, we may be pretty sure that the religion of the time saw nothing very wrong in the proceedings of a lord who without any cruelty tried to get the most that he could out of his villein tenements. We may well doubt whether the best morality of the time required him to regard the villein services as fixed for good and all, or as variable only by means of some formal agreement such as never could have been made had but one tenant refused his consent. The process of commutation, [p.362] which in the end was to give the copyholder his valuable rights, was set going by the lord’s will; he chose to exact money instead of labour, and, if he took but a fair sum, he was not to be condemned. We cannot contend therefore that the lord’s will was fettered by rigid custom, or that any man conceived that it ought to be so fettered. On the other hand, as we shall soon see, there is in the king’s treatment of his peasants, the men of “the ancient demesne,” a convincing proof that the just landlord was expected to pay heed to the custom and not to break through it save for good cause.

Heritable rights in villein tenements.Had the tenant in villeinage heritable rights? Of rights recognized by the king’s courts we have not to speak; but the manorial court frequently admitted that his rights were heritable, at least as against all but the lord. Often a claimant comes into court and declares in set terms how he is the rightful heir and how some one else is wrongfully withholding his inheritance. Thus, for example: “John of Bagmere demands against John son of Walter of Wells one virgate of land with the appurtenances in the vill of Combe as his right according to the custom of the manor, and therefore as his right, for he says that one John of Bagmere his grandfather died seised thereof as his right according to the custom of the manor, and from that John the right descended according to the custom of the manor to his son William, the demandant’s father, whose heir the demandant is according to the custom of the manor.”⁵²⁹ This is just the formula which a man would use in the king’s court were he claiming a freehold inheritance, save that at every turn reference is made to the custom of the manor; according to the custom inheritance is a matter of strict right as against all but the lord. The documents are much more chary of admitting that as against the lord the heir has any rights. On the death of a tenant a heriot becomes due, usually the best beast or best chattel or a fixed sum of money; but this is regarded less as a “relief” to be paid by an heir than as a payment due out of the dead man’s estate, and if an “extent” speaks of the heir at all, this is in general to tell us that he must “do the [p.363] lord’s will,” or must “redeem the land at the will of the lord.”⁵³⁰ The court rolls seem to show that as a matter of fact heirs were admitted on fairly easy terms, the lord taking an additional year’s rent or the like, and the pleadings in which hereditary right is asserted against others than the lord testify to a strong feeling that the villein tenements are heritable; still as against the lord the heir has rather a claim to inherit than an inheritance. The records of this age but rarely say that a tenant is admitted “to hold to him and his heirs,” generally they say no more than that the lord has given the land to A. B. When, as would generally be the case, the tenants were personally unfree, the lord would have run some danger in talking about their heirs, for lawyers were saying that the serf could have no heir but his lord and drawing thence the deduction that a serf might be enfranchised by unguarded words.⁵³¹ This may be the reason why early court rolls, when they do expressly allow that a new tenant is to have transmissible rights, do so by speaking not of his heirs but of his sequela. This is not a pretty word to use of a man, for it is the word that one uses of pigs and the like; the tenant is to hold to him and his brood, his litter.⁵³² We shall better understand the nature of the heir’s right against the lord, a right to inherit if the lord pleases, if we are persuaded that in many a case the inheritance was not very valuable. Certainly in the fourteenth century there were lords who would but too gladly have found heirs to take up the villein tenements at the accustomed services.⁵³³ We may hardly argue thence to an earlier time; but no doubt the services were often as good a return for the land as could have been obtained. A strong man with strong sons might do them and thrive; the weak and needy could not, and were removed with the full approbation of the other men of the vill, whose burdens had [p.364] been increased by the impotence of their fellow-labourer.

Unity of the tenement.Further the lord took care that the tenements should not be broken up among co-heirs. Often the tenant’s widow enjoyed the whole tenement during her life or until she married a second time without the lord’s leave.⁵³⁴ Often the customary rule of inheritance gave the land to the dead man’s youngest son, and this was accounted a mark of villein tenure.⁵³⁵ Perhaps in some cases the family kept together, and the son who was admitted as tenant was regarded as representing his brothers; but this must have been a matter of morals rather than of law or of enforceable custom. By one means or another the unity of the tenement was preserved and it is rare to find it held by a party of co-heirs. Exceptions there doubtless were, but on the evidence afforded by the “extents” and the Hundred Rolls it is hard to believe that in the thirteenth century the lords held themselves bound by custom to admit the heir on his tendering a fixed fine.⁵³⁶ “Precarious inheritance,” if we may use such a term, was of common occurrence in all zones of society. The baronial relief had but lately been determined; the tenant by serjeanty still relieved his land “at the will of the lord.” We know too that in later days the heir of a copyhold tenant very often had to pay an “arbitrary” fine, while in other cases lords have succeeded in proving that the successors of the villein tenants were but tenants for life.⁵³⁷

[p.365]Alienation of villein tenements. Of the alienation, of the sale and purchase, of villein tenements we read little. We may be sure that this could not be effected without the lord’s leave; the seller came into the lord’s court and surrendered the land into the steward’s hand, who thereupon admitted the new tenant and gave him seisin. The new tenant paid a fine; often it would be one year’s value of the tenement. But in this region there seems to have been but little custom, and we may be fairly certain that the lords of this period did not allow that new tenants could be forced upon them against their will. If the tenant attempted to alienate the tenement without the lord’s leave, this was a cause of forfeiture;⁵³⁸ if he attempted to make a lease of it, this, if not a cause of forfeiture, subjected him to an amercement.⁵³⁹

Villein tenure and villein status.Finally we must note that the tenant in villeinage was usually regarded as an unfreeman, a bondman, villanus, nativus, servus. That a freeman should hold in villeinage was possible, and up and down the country there may have been many freemen with villein tenements; what is more, there likely enough were many men whose status was dubious. This is one of the most remarkable points in villeinage; villein tenure is of far greater practical importance than villein status. To prove that a man was