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

is as yet inapplicable. No one as yet holds land “by copy of court roll”; the lords are only just beginning to keep court rolls and it is long ere the court roll becomes a register of title. If alienations and descents are entered upon it, this is done merely to show that the steward has received or has yet to collect a fine or a heriot, and the terms on which a new tenant takes land are seldom mentioned. If from a modern conveyance of a copyhold tenement we abstract the copy of the court roll and even the court roll itself, we still have left the intermediation of the lord between the vendor and the purchaser: the land is supposed to pass through the lord’s hand. But when dealing [p.352] with the thirteenth, to say nothing of the twelfth, century, we cannot make the lord’s intervention a proof of villein tenure. We may well find the conveyance of a freehold taking in all essentials the form of “surrender and admittance”; the old tenant yields up the land to the lord, the lord gives it to the new tenant; the transaction takes place in court; the symbolical rod is employed; no charter is necessary.⁵⁰⁷ Indeed when there was to be no subinfeudation but a substitution of a new for an old tenant, we may well be surprised that this could ever be effected without a double conveyance. Moreover if we say that the lord can prevent the alienation of villein, but cannot prevent the alienation of free tenements we still have not solved the question; to say that a tenement is villein because it cannot be alienated without the lord’s consent is to put the cart before the horse.

“The will of the lord.”Nor again can we find the solution in the phrase “to hold at the will of the lord.” If for a moment we take this phrase merely to denote that the tenure is unprotected by the king’s court, we are brought once more to the fruitless proposition that it is unprotected because it is unprotected. If, on the other hand, we take the phrase to imply that there is no court which protects the tenure, or that the lord can at any moment eject the tenant without breach of any custom, then, to say the least, the great mass of villein tenures will escape from our definition. Tenures which really are tenures “at will,” unprotected by any custom, are to be found, and that too in high places, but then they are in general carefully distinguished from the villein tenures. In the extents and manorial rolls of the thirteenth century it is rare to find that the tenants in villeinage are said to hold at the will of the lord.⁵⁰⁸ Still when we turn, as we now must, to find the element in villein services which makes them villein, this phrase “at the lord’s will” must again meet us.

Villeinage and labour.That a tenure which compels to agricultural labour is unfree, this [p.353] we certainly cannot say. The philology of the time made ploughing service the characteristic feature of socage,⁵⁰⁹ and often enough a freeholder had to give his aid in ploughing and reaping his lord’s demesne; nor can we say for certain that he could always do his work by deputy, for the duty cast upon him was sometimes such as could not well be delegated, in particular that of riding after the labourers “with his rod” and keeping them up to their work.⁵¹⁰ There is nothing servile in having to do such a duty in person. In general, no doubt, the freeholder only aids his lord’s agriculture during a few weeks in the year; he helps at the “boon works” but does no “week work”; still it is difficult to make the distinction between freedom and unfreedom turn upon the mere amount of work that has to be done. If there is no villeinage in labouring ten days in the year why should there be any villeinage in labouring three days a week? On the whole our guides direct us not to the character, nor to the amount of the work, but to its certainty or uncertainty.⁵¹¹ The typical tenant in villeinage does not know in the evening what he will have to do in the morning.⁵¹² Now this, when properly understood, is very generally true of the tenants who are bound to do much labour, to do “week work.” They know a great deal about the amount of work that they will have to do in each year, in each week, on each day; they know, for example, that the custom exacts from them three and no more “works” in every week, that Tuesday is not a work day, that if they are set to ditch they must ditch so many perches before the “work” will be accomplished, that to drive a cart to one place is “one work,” to another place “two works”; they know whether when set to thresh they can stop at nones or must go on to vespers. Still there is a large element of real uncertainty; the lord’s will counts for much; when they go to bed on Sunday night they do not know what Monday’s work will be: it may be threshing, ditching, carrying; they cannot tell. This seems the point that is seized [p.354] by law and that general opinion of which law is the exponent: any considerable uncertainty as to the amount or the kind of the agricultural services makes the tenure unfree. The tenure is unfree, not because the tenant “holds at the will of the lord,” in the sense of being removable at a moment’s notice, but because his services, though in many respects minutely defined by custom, cannot be altogether defined without frequent reference to the lord’s will. This doctrine has good sense in it. The man who on going to bed knows that he must spend the morrow in working for his lord and does not know to what kind of work he may be put, though he may be legally a freeman, free to fling up his tenement and go away, is in fact for the time being bound by his tenure to live the same life that is led by the great mass of unfreemen. Custom sets many limits to his labours; custom sets many limits to theirs; the idea of abandoning his home never enters his head; the lord’s will plays a large part in shaping his life.

Definition of villein services.This then seems to have been the test usually applied by the king’s court. If the labour services are “uncertain,” the tenure is unfree; and it is a test which condemns as unfree the great bulk of the tenures which obliged men to perform any considerable amount of agricultural labour for their lord, because, however minutely some particulars of those services may be defined, there is generally a spacious room left for the play of the lord’s will. Thus the test roughly coincides with another:—labour service is not necessarily unfree, but a service which consists of much labour, of labour to be done all the year round, is almost of necessity unfree; for almost of necessity the tenant will be bound to obey, within wide limits, whatever commands the lord or the lord’s bailiff may give him. Thus to hold land by “fork and flail,” by work done day by day, or week by week on the lord’s demesne, is to hold in villeinage.⁵¹³

Tests of villein tenure.Other tests are in use. Any service which stamps the tenant as an unfreeman, stamps his tenure as unfree; and in common opinion such services there are, notably the merchetum. Now among the thousands of entries in English documents relating to this payment,The merchet. it would we believe be utterly impossible to find one which gave any [p.355] sanction to the tales of a ius primae noctis.⁵¹⁴ The context in which this duty is usually mentioned explains at least one of the reasons which underlie it. The tenant may not give his daughter (in some cases his son or daughter) in marriage—at least not outside the manor,—and he may not have his son ordained, and he may not sell horse or ox, without the lord’s leave:—the stock on the tenement is not to be diminished. No doubt a subjection to this restraint was regarded as very base, and sometimes it is described in vigorous words which express a freeman’s loathing for servility:—“he must buy, he must make ransom for, his flesh and blood.” This is intelligible; a payment for leave to give one’s daughter in marriage or for leave to send one’s son to school, naturally suggests bondage, personal bondage, bondage which is in one’s blood. It is constantly used as a test of personal serfage and a fortiori of unfree tenure. Bracton will just allow that the man who has to pay a merchet need not be a bondman; it may in a given case be an incident of unfree tenure rather than of personal servility. However, though this test was commonly applied, we cannot say that it was conclusive even of the unfreedom of the tenure. In Northumberland there certainly were lords of manors, lords of entire vills, who paid merchet,⁵¹⁵ and then we have to remember that in Scotland, at least according to the Regiam Maiestatem, every woman, were she noble, were she serf, paid “merchet,” paid it in kine (an earl’s daughter paid twelve cows),⁵¹⁶ while in Wales a similar payment was made on the marriage of every girl.⁵¹⁷ Very possibly several different payments originating at different times, perhaps among