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

a lord had in his own interest to undertake this proof was not very common. So long as the tenant did not make up his mind to quit hearth and home, leaving the means of his livelihood behind him, the lord had seldom to fall back upon an assertion of personal bondage in order to get what he wanted. If the tenant was refractory the lord could distrain him, could take the tenement away for a time or for good and all. For all this however, the “extents” of the thirteenth century show that in the estimation of their lords—and, we must add, of their neighbours,—the holders of unfree tenements were as a general rule unfreemen. This is apparent in “extents” to which the tenants themselves pledge their oaths; it is plain upon the face of the Hundred Rolls. The juries of different hundreds may choose different phrases; but in one way or another, either by using such terms as nativus and servus, which imply personal unfreedom, [p.366] or by laying stress on the payment of the merchet, they generally show that in their opinion the case of a freeman holding in villeinage is uncommon and may fairly be neglected by those who are dealing with large masses of men.

§ 13. The Ancient Demesne ⁵⁴⁰

The ancient demesne and the other royal estates.The king is a great landowner. Besides being the supreme lord of all land, he has many manors of his own; there is a constant flow of lands into and out of the royal hands; they come to him by escheat and forfeiture, they leave him by gifts and restorations. Now a distinction is drawn among the manors that he has. Some of them constitute, so to speak, the original endowment of the kingship, they are that ancient demesne of the crown which the Conqueror held when the great settlement of the Conquest was completed and was registered in Domesday Book.⁵⁴¹ What has fallen in since that time is not considered as so permanently annexed to the kingly office; it is not expected of the king that he will keep in his own hands the numerous honours, baronies and manors with which felony and treason and want of heirs are constantly supplying him; rather it is expected that he will give these away again. On the other hand, he ought not to dissipate the old demesne manors. He does give them out, and that too to be held of him heritably, but often he reserves a substantial money rent; they are to be held of him in “fee farm.” This is hardly a matter of law; all the king’s manors are the king’s to give upon what terms he pleases; still his ancient patrimony is regarded as more closely bound up with his office than are those mere windfalls which now and again come to his hands.⁵⁴²

[p.367]Immunities of the ancient demesne. But in law also the distinction is important. We are accustomed to define a “franchise” as a portion of royal power in the hands of a subject, so that to speak of the king as having franchises would be a contradiction in terms. Nevertheless in early history the king appears as the first of all franchise holders, the first in point of greatness and the first, it well may be, in point of time. The king’s estates are (to borrow a word from abroad) “immunities,” perhaps the oldest of all immunities; they stand outside the normal, national system of justice, police and finance. Inside them there prevails a royal, which is also a seignorial, justice, and which remains distinct from the ordinary justice of the realm, even when that is done in the king’s name. The tenants on the ancient, the permanent, manors of the crown enjoy many “liberties” which flow from the king’s rights, they are to a very high degree exempt from all justice, save that which is done among them by a court which they constitute and which is presided over by a royal bailiff, exempt to a very high degree even from the justice of the king’s “courts of common law” when those courts have come into existence. They know little of the sheriff; they have not to attend the moots of the shire or the hundred; they need not serve as jurors; wherever they go they pay no toll; they are not taxed like other folk; on the other hand they are liable to be tallaged by the king. The king profits by these immunities; his manors are governed from within; the cultivators of his demesnes cannot be distracted from their duties to him.⁵⁴³ He attracts men to his land; the serf who lives there unclaimed for year and day is privileged against recapture.

Once ancient demesne, always ancient demesne.When new manors come to the king’s hands they do not enjoy these immunities. On the other hand, when the king gives away in fee farm or otherwise one of the ancient manors, the donee takes it with all its privileges. This we may say is an illustration of a general rule of law:—the escheat of a mesne lordship should leave unaltered the rights and duties of those who are the subjects of that lordship, and if a lord puts a mesne between himself and his tenant, that tenant should neither gain nor lose by the change. Thus, [p.368] once ancient demesne, always ancient demesne. The tenants who have been free of toll but liable to tallage should still be free of toll but liable to tallage, though the king has ceased to be and the Prior of Barnwell has become their immediate lord.

Peculiar tenures on the ancient demesne.All this would make the ancient demesne of importance in the history of political arrangements, in the history of the franchises, of justice, police and finance, though here the franchises and immunities enjoyed by the king’s estates would have to take their place beside the very similar franchises and immunities enjoyed by the estates of other privileged persons. But we do not at once see why there should be any form of land tenure peculiar to the ancient demesne. However, such a form of land tenure there is.

      The problem stated.Briefly stated, the phenomenon which deserves investigation is this:—On the ancient demesne there is a large class of persons whose economic and social position is much the same, if not quite the same, as that of the ordinary holders in villeinage, but who are very adequately protected by law, or by custom which has all the force of law, in the enjoyment of their tenements. This protection is given to them by two remedies specially adapted to meet their case; the one is “the little writ of right close according to the custom of the manor,” the other is the writ of Monstraverunt. We will speak first of these remedies and then of the class for whose sake they exist.

The little writ of right.The “little writ of right close” is not unlike the “great writ of right patent.” This latter is the ordinary proprietary remedy for one who thinks that he ought to hold land by free tenure of a mesne lord. The writ patent is directed by the king to the mesne lord; it bids him “hold full right” (plenum rectum teneas) to the demandant and adds a threat that if he is remiss, the king’s sheriff will interfere.⁵⁴⁴ The lord then, if he has a court, holds a court, and justice can there be done to the demandant, though there are several ways in which the case can be withdrawn from his tribunal and removed first into the county court and then into the king’s court. Now the little writ is a similar writ. It is directed by the king to the bailiffs of the manor⁵⁴⁵—this will be so whether the king is himself the immediate [p.369] lord of the manor or whether it is in the hands of a mesne— and it bids the bailiffs do full right to the demandant “according to the custom of the manor.”⁵⁴⁶ It contains no threat of the sheriff’s interference, and this may be the reason why it is a “close writ” and not a “patent writ,” since no one but the recipient, who is not a public official, is required to act upon it. Thereupon the court of the manor proceeds to hear and is fully competent to determine the cause. Still it acts under surveillance. If it is going wrong, the sheriff can be sent with four knights of the county to watch its proceedings,⁵⁴⁷ and there are means by which the matter can be brought before the king’s central court.⁵⁴⁸ This writ, we say, is in use both when the manor is in the king’s hand, so that the demandant is claiming to hold immediately of him, and also when the manor has been given to a mesne lord. In the latter case the lord himself may be the defendant. So long as the king is the immediate lord, there can be no writ against the lord; of course not; but the would-be tenant of a few acres on the ancient demesne is in this respect no worse off than the mightiest of the barons; he who would get justice out of the king must petition for it in humble wise. But when the manor has been given to a subject,