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

at once that the ancient demesne manors of the thirteenth century have preserved, while other manors have lost, some features which in the Conqueror’s survey are by no means peculiar to the royal villages; it is on the ancient demesne that we find more than one legal class of tenants who are not freeholders; it is on the ancient demesne that we find large groups of tenants still rejoicing in the ancient name of sokemen.

Why the king protects his tenants.Why has the king here shown himself as a conservative? Certainly we cannot answer that it is in the nature of kings to be conservative or solve the problem by an allusion to the inertness of a government bureau. In matters of law the royal power has been the great disturbing force, the king has been the radical reformer. Of course it is well to observe that on a royal manor there hardly can be any of those “half-rights” (if such a term may be invented) that may exist elsewhere. The custom of a royal manor, if the king recognizes it at all, must stand on much the same level as the law of the land; it will be administered by royal officers, and in the last resort it will be administered by royal officers who happen to be the judges of the supreme court of law. Still the king suffers this, and holds himself bound to suffer it, and his judges, for example, Bracton, say that he is bound to suffer it, say that the sokemen are irremovable so long as they do their services, say that their services are servitia certa et nominata. What we have to attribute to the king in a special degree is no mere inertness, nor is it enlightened self-interest (for this we should look to the monastic rather than to the royal estates) but it is a respect for custom, an acknowledgment that the rules administered in his manorial courts have all the force of law. Perhaps it is no paradox that he keeps the custom best because there can be no talk of his being forced to keep it. Another lord will draw a firm line between the rights of his freehold tenants, which he can be compelled to observe, and the rights, if such they are to be called, of his customary tenants, which he can ignore with impunity, and, as a remedy in the king’s supreme court is more and [p.384] more regarded as a touchstone of every would-be right, he will begin to reason that there is no right where there is no compulsion. It is otherwise with the king. If he ejects his sokeman, no action will lie against him; none will lie against him if he disseises the palatine earl. In either case the person wronged can but petition for right; in either case the wrongdoer must answer for his act before the one tribunal competent to try him; he must appear before the throne of God. Morally the king can never be as irresponsible as is another lord of a manor, just because legally no bounds, or no definite bounds, are set to his irresponsibility. Men will not easily distinguish between his two capacities. If a landlord, he is still the king, the supreme judge over all men, the fountain of justice; he has sworn to do justice; the abbot, the baron, the knight have taken no such oath. We may add that the king is bound to maintain the laws and customs of “the glorious king St. Edward his predecessor.” Should he not then begin at home? It is as the tenants of St. Edward that the men of the ancient demesne claim his protection.⁵⁸⁴

Customary freehold.Speaking generally we have said that outside the ancient demesne all the tenures of the non-freeholding peasantry are in law one tenure, tenure in villeinage. This is the doctrine of the lawyers of the thirteenth century, and on the whole it is well borne out by the manorial “extents.” Economically considered there are many modes of peasant tenure, for the tenement may be large or small, the agricultural services may be light or heavy, “week work” may be exacted or money may be taken; but just as the modern lawyer makes “leasehold tenure” cover such economically different things as a lease of a house in London and a lease of a farm, a lease for a year and a lease for a thousand years, beneficial leases and leases at rack rent, so all these modes of peasant tenure can be brought under one head. The legal quality which they have in common and which keeps them together, is, we may say, their customary quality; they are not protected by the law of the king’s courts, but they are protected, more or less perfectly, by the customs administered in the manorial courts. Legally they form one tenure, because in all cases the kind of protection that they receive is the same. In this quality [p.385] there are no degrees, or none that can be fixed with legal precision. Of course there are good and bad landlords, landlords who respect the custom, landlords who break it, conservative landlords and improving landlords; but all this is no matter of law. What we do not see is that one and the same landlord in one and the same manor admits that he has divers classes of non-freeholding tenants, which differ from each other in the validity of their tenure; what we do not see is a “privileged” beside an “absolute” villeinage. Still there are exceptions, and perhaps, were they all collected, they would form a considerable mass: in particular if the documents concerning Kent, East Anglia and Northumbria were patiently examined. In a cartulary of the twelfth century, in the Black Book of Peterborough, we still find on one and the same manor various classes of tenants bearing the names which are familiar to all who read Domesday Book. There are large groups of sochemanni who are kept well apart from the villani, but who very probably could not have made good a claim to be considered as freeholders in the king’s court.⁵⁸⁵ Even in the Hundred Rolls we may, though as a rarity, find a class of sokemen marked off from the freeholders on the one hand and the tenants in villeinage on the other, though the manor is not on the ancient demesne. It is so at Swavesey in Cambridgeshire. When Domesday Book was made Count Alan held it, and it is still held by Ellen de la Zouche “as of the honour of Britanny.” She has freehold tenants, a group of villani who hold de villenagio, a group of cotters; but besides these a group of sokemanni who hold sokelond.⁵⁸⁶ In the north the “tenants in drengage” are severed from the freeholders and from the “tenants in bondage”;⁵⁸⁷ and, if the Kentish “gavel-men” succeeded in making “gavelkind” a freehold tenure, and in some respects a privileged freehold tenure, since peculiarly cheap and easy remedies for its protection were allowed them, their tenure was still spoken of as though it were not absolutely “free”; it may be contrasted with “frank fee” just as the tenure of the king’s sokemen may be contrasted with “frank fee.” [p.386]⁵⁸⁸

      Customary freehold in modern times.To this we must add that modern courts of law have from time to time been puzzled by the appearance before them of classes of tenants seeming to occupy a middle state between that of freeholders and that of copyholders. They are said to hold “according to the custom of the manor,” but not “at the will of the lord”; they convey their tenements sometimes by surrender and admittance in the lord’s court, sometimes by a deed of bargain and sale followed by an admittance; often they are subject to some of the usual burdens of copyhold tenure. They have come sometimes from manors which formed part of the ancient demesne, sometimes from other manors; in particular they have often come from a part of England in which, if Domesday Book be the final test, there can be no ancient demesne, namely, from the northernmost counties. Now it would be foolish to argue that the ancestors in law of any given group of such tenants enjoyed in the thirteenth century a condition superior to that of the ordinary tenants in villeinage. The full formula which is supposed to describe the tenure of the copyholder—“to hold at the will of the lord according to the custom of the manor”—is seldom found on the earliest court rolls. Any set of early court rolls is likely to show many variations in the phrases used about one and the same set of tenements, and in any particular case the omission of all allusion to the will of the lord from the formula which became current in the manorial court or the steward’s office, may be of recent origin and the outcome of an accident. An example may show how rash such inferences may be. The Dean and Chapter, successors of the Prior and Convent, of Durham have (it is said) no copyholders, having succeeded in proving that their peasant tenants held only for life and without any right of renewal. The Bishop of Durham has, or lately had, plenty of copyholders. But in all probability the explanation of this difference is to be found in what from our point of view are comparatively modern times. The convent, like many [p.387] other religious houses, took steps to prevent its villein or “bondage” tenements from being heritable in fact; the “corporation sole” was less far-sighted than the “corporation aggregate.”⁵⁸⁹ And again, the modern cases which introduce us to “customary freeholders” seldom tell us of more than one class of customary tenants on the manor that is in question:—on that manor there are no tenants who are said to