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

has been mown, all the strips will be thrown open to the cattle of the lord and his tenants. There is also land permanently devoted to pasturage; a right to turn out beasts upon it is commonly annexed to every tenement or to every considerable tenement. Lastly, we must just notice that in the lord’s court the manor has an organ capable of regulating all these matters, capable for example of deciding how many beasts each tenement may send to the pasture, and, when the rights of the freehold tenants are not concerned, the decrees and judgments of this court will be binding, for the king’s courts will give no help to those who hold in villeinage.

[p.348]Villein services. Now speaking generally we may say that the services which the tenant in villeinage owes to his lord consist chiefly of the duty of cultivating the lord’s demesne. Before the thirteenth century is over we may indeed find numerous cases in which the payment of a money rent forms a substantial part of his service and he is hardly bound to do more labour than is exacted from many of the freeholders, some ploughing and some reaping. It is very possible that there are some classes of tenants now reckoned to hold in villeinage, whose predecessors were in this same position at a remote time; they are gavel-manni, men who pay gafol, or they are censuarii, and such their forefathers may have been all along.⁵⁰² To suppose that in all cases the system of rents paid in money or in produce has grown out of a system of labour services is to make an unverified assumption. On the other hand, in very many cases we can see that the money rent is new. We may see the process of commutation in all its various stages, from the stage in which the lord is beginning to take a penny or a halfpenny instead of each “work” that in that particular year he does not happen to want, through the stage in which he habitually takes each year the same sum in respect of the same number of works but has expressly reserved to himself the power of exacting the works in kind, to the ultimate stage in which there is a distinct understanding that the tenant is to pay rent instead of doing work. But we may for a moment treat as typical the cases in which the tenant hardly pays anything. Of such cases there are plenty. The tenant may pay some small sums, but these are not regarded as the rent of his tenement. They bear English names; sometimes they seem to have their origin in the lord’s jurisdictional powers rather than in his rights as a landowner, as when we read of tithingpenny, wardpenny, witepenny; sometimes they look like a return made to the lord, not for the tenement itself, but for rights over the wastes and waters, as when we read of fishsilver, woodsilver, sedgesilver. But in the main the tenant must work for his tenement.

A typical case of villein services.Now the labour that he has to do is often minutely defined by [p.349] the manorial custom and described in the manorial “extent.” Let us take one out of a thousand examples. In the Abbot of Ramsey’s manor of Stukeley in Huntingdonshire the services of a virgater are these:⁵⁰³—From the 29th of September until the 29th of June he must work two days a week, to wit on Monday and Wednesday; and on Friday he must plough with all the beasts of his team; but he has a holiday for a fortnight at Christmas and for a week at Easter and at Whitsuntide. If one of the Fridays on which he ought to plough is a festival or if the weather is bad, he must do the ploughing on some other day. Between the 29th of September and the 11th of November he must also plough and harrow half an acre for wheat, and for sowing that half-acre he must give of his own seed the eighth part of a quarter: whether that quantity be more or less than is necessary for sowing the half-acre he must give that quantity, no more, no less: and on account of this seed he is excused one day’s work. At Christmas time he must make two quarters of malt and for each quarter he is excused one day’s work. At Christmas he shall give three hens and a cock or four pence and at Easter ten eggs. He must also do six carryings (averagia) in the year within the county between the 29th of June and the end of harvest at whatever time the bailiff shall choose, or, if the lord pleases, he shall between the 29th of June and the 29th of September work five days a week, working the whole day at whatever work is set him, besides carrying corn, for he shall carry but four cartloads of corn for a day’s work. If at harvest time the lord shall have two or three “boon works” (precationes), he shall come to them with all the able-bodied members of his family save his wife, so that he must send at least three men to the work. He pays sheriff’s aid, hundredpenny and wardpenny, namely 6¼ d.

Week work and boon days.Now the main features of this arrangement we find repeated in countless instances. The tenant has to do “week work,” as it has been called: to work two or three days in every week during the greater part of the year, four or five during the busy summer months. Then at harvest time there are also some “boon days” (precariae, precationes); at the lord’s petition or boon the tenant must bring all his hands to reap and carry the crops and on these days [p.350] the lord often has to supply food; at Stukeley it is bread, beer and cheese on the first day, meat on the second, herrings on the third. But matters are yet more minutely fixed. Our Stukeley tenant has to “work” so many days a week; the choice of work rests with the lord, but custom has fixed the amount that shall be accounted a day’s work. For instance on the neighbouring manor of Warboys gathering and carrying three bundles of thorns are regarded as a day’s work.⁵⁰⁴ At Stukeley if the tenant has to fell timber, the day’s work is over at noon, unless the lord provides dinner, and then the work lasts all day. Sometimes it is remarked that a task which counts as a day’s work can really be done in half a day.⁵⁰⁵ The exact distance that he must go with his lord’s wagons in order that he may claim to have performed an averagium is well known, and, when the lord is bound to supply food or drink, the quantity and quality thereof are determined. On the Ramsey manors a sick tenant will be excused a whole year’s work if his illness lasts so long; after the year he must get his work done for him as best he may. A half-virgater will do proportionately less work, a cottager still less; thus at Stukeley the cottager works on Mondays throughout the year and on Fridays also in harvest time.

Merchet and tallage.There is more to be said. Our Stukeley virgater pays “merchet” as best he may, that is to say, if he wishes to give his daughter in marriage he must pay money to the lord and the amount that he has to pay is not fixed. If he has a foal or calf born of his own mare or cow, he must not sell it without the lord’s leave. If he has an oak, ash or pear-tree growing in his court, he must not fell it, except for the repair of his house, without the lord’s leave. When he dies his widow shall pay a heriot of five shillings and be quit of work for thirty days. These are common features, and the merchet is of peculiar importance, as will be seen hereafter. Sometimes it is only paid if the girl is married outside the vill; sometimes the amount is fixed. And so as to selling beasts; occasionally the lord’s right is but a right of preemption. And then in many cases the villein tenants are liable to be tallaged, sometimes once a year, sometimes twice in seven years; sometimes the amount of this tax is defined, sometimes [p.351] they can be “tallaged high and low” (de haut en bas). Often they are bound to “suit of mill,” that is to say, they must not grind their corn elsewhere than at the lord’s mill. About all these matters we sometimes find rules which set certain definite limits to the tenant’s duty and the lord’s right.⁵⁰⁶

What is the essence of villein tenure.Such were some of the commonest services due from the holder of a villein tenement. As yet, however, we have attained to nothing that can be called a definition of the tenure. To say that it is a tenure defined by custom but not protected by the king’s courts is no satisfactory definition, for this, as already said, is to mistake the consequence for the cause. Now Bracton constantly assumes that everyone will understand him when he speaks of villein services, but he never undertakes to tell us precisely what it is that makes them villein, and, when we turn to the manorial extents, we not unfrequently meet with tenures that we know not how to classify. Apart from the tenants who certainly are freeholders and the tenants who certainly hold in villeinage, we see here and there a few men whose position seems very doubtful; we do not like to predict either that they will or that they will not find protection