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

the merchet is generally regarded as a base payment, a mark, though not a conclusive mark, of personal unfreedom.⁵¹⁸

      Other tests of villein tenure.Other tests are at times suggested. The duty of serving as the [p.356] lord’s reeve whenever the lord pleases, the liability to be tallaged “high and low,” these also are treated as implying personal bondage.⁵¹⁹ If the tenement descends to the youngest son instead of to the eldest son or to all the sons, the inference is sometimes drawn that it is not free. On the whole, however, our books constantly bring us back to the “uncertainty” of the service as the best criterion of villein tenure. Certainty and uncertainty, however, are, as we have seen, matters of degree. In few, if any, cases is there no custom setting bounds to the tenant’s duty of working for his lord; in most cases many bounds are set; the number of days in every week which he must spend on the demesne is ascertained; often the amount of any given kind of labour that will pass for a day’s work is determined; but yet there is much uncertainty, for the tenant knows not in the evening whether in the morning he will be kept working in the fields or sent a long journey with a cart. We need not be surprised therefore if in the thirteenth century “freehold” and “villeinhold” are already becoming technical ideas, matters of law; jurors who [p.357] can describe the services are unwilling to say whether they are free or unfree, but will leave this question for the justices.⁵²⁰ And next we have to note that though labour service, indefinite or but partially defined labour service, seems to be the original essence of villein tenure, this does not remain so for long. When once it has been established that a tenement is unfree, that tenement will not become free, at least in the eyes of lawyers, even though the services are modified or transformed. Without any definite agreement, a lord begins to take money instead of exacting labour, and gradually it becomes the custom that he shall take money, and a precisely fixed sum of money, in lieu of all the week-work. This change does not give the tenant a freehold, a right in the land which the king’s courts will protect; something far more definite would be required for that purpose, an enfranchisement, a feoffment. Thus it falls out that a tenant who according to the custom of the manor pays a money rent and does no more labour for his lord than is owed by many a freeholder, may still be no freeholder but a tenant in villeinage; he still is protected only by custom and in the view of the royal justices is but a tenant at will. Then gradually what has been called “the conveyancing test” becomes applicable. Dealings with villein tenements are set forth upon the rolls of the lord’s court; the villein tenement is conceived to be holden “by roll of court,” or even “by copy of court roll,” and the mode of conveyance serves to mark off the most beneficial of villein-holds from the most onerous of freeholds; the one passes by “surrender and admittance,” the other by [p.358] “feoffment.” In Henry III.’s time this process which secured for the tenant in villeinage a written, a registered title, and gave him the name of “copyholder,” was but beginning, and it is possible that in some cases the lord by taking money instead of labour did as a matter of fact suffer his tenants to become freeholders; but probably he was in general careful enough to prevent this, for him undesirable, consequence, by retaining and enforcing a right to some distinctively servile dues. But our definition of villein tenure must be wide enough to include cases in which there has been a commutation of labour service into rent, and on the whole we may do well in saying that villein tenure is the tenure of one who owes to his lord in respect of his tenement “uncertain” labour services, or who (by himself or his predecessors) has owed such services in the past, or who is subject to distinctively servile burdens such as merchet, arbitrary tallage, or the duty of serving as reeve. This we believe to be the main idea; but we must receive it subject to two remarks, namely, that, as so often said, “uncertainty” is a matter of degree, and that in some cases a tenure which all along had been tenure at a money rent may have been brought within the sphere of villeinage by some untrue, or at all events unverified, theory as to its past history. Here as elsewhere law has done its work of classification by means of types rather than by means of definitions.⁵²¹

[p.359]Binding force of manorial custom. To fix in precise words the degree of binding force that the lords in their thoughts and their deeds ascribed to the manorial custom would be impossible. Generalizations about the moral sentiments of a great and heterogeneous class of men are apt to be fallacious, and, when a lord pays respect to a custom which cannot be enforced against him by any compulsory process, it will be hard for us to choose between the many possible motives by which he may have been urged; provident self-interest, a desire for a quiet life, humane fellow-feeling for his dependants, besides a respect for the custom as a custom may all have pulled one way. There is some evidence to show that the mere reverence for the custom as a custom grew weaker during the thirteenth century. When early in that age the king’s justices were considering whether they would not protect the villein tenant against his lord,⁵²² they must have felt that the custom was very like law. On the other hand, when they had definitely abandoned this enterprise, the lords must have been more and more tempted to regard the custom as but a revocable expression [p.359] of their own wills.⁵²³ Certainly the lawyers began to use language which must have suggested to the lords that they might eject their tenants whenever they pleased.⁵²⁴ On the whole, however, the two clauses of the formula which is in after times to describe the position of the copyholder, grew into definiteness side by side:—the tenant in villeinage holds “at the will of the lord,” but “according to the custom of the manor.”

Treatment of villein tenure in practice.Our task is the more difficult because fully developed copyhold tenure, even as it exists in the nineteenth century, allows that there are many acts and defaults by which a tenant may forfeit his tenement. Now a strict definition of these causes of forfeiture only appears late in the day; little of the kind is to be found in the “extents” of the thirteenth century. Seldom, if ever, were the lords brought to acknowledge that the causes of forfeiture were definable. Many admissions against their own interests the “extents” of their manors may contain; they suffer it to be recorded that “a day’s work” ends at noon, that in return for some works they must provide food, [p.360] even that the work is not worth the food that has to be provided; but they do not admit that for certain causes and for certain causes only may they take the tenements into their own hands.

      Ejectment of villeins.As a matter of fact, it is seldom of an actual ejectment that the peasant has to complain. If he makes default in his services, he in general suffers no more than a small amercement; seldom does it exceed six pence. Even if he commits waste, if, for example, he lets his house go out of repair, he generally has full warning and an opportunity for amending his conduct before the lord takes the extreme measure of ejecting him. An extreme measure it was, for tenants were valuable; then as now “it paid to be a good landlord.” Two motives, and perhaps two only, might make a lord wish to clear the cultivators from his land; he might wish to fill their place with beasts of the chase or with monks. Happily for the peasantry, rights of sporting were franchises which had to be purchased from the king, while we may hope that the pious founder dealt generously with his tenants. One of the stories which best illustrates the nature of their customary rights tells how when Henry II. was founding the Carthusian priory of Witham in Somersetshire he cleared the villeins off the land, but gave each of them the choice of becoming free or receiving a tenement in any royal manor that he might choose. But the holy Hugh was not content with this, he made Henry pay compensation to the villeins for their houses; nor did he stop there; they must be allowed to carry away the materials, though for these they have already received a money equivalent.⁵²⁵ At an earlier date an Earl of Lincoln, clearing the ground for Revesby Abbey, had given the dispossessed rustics a choice between freedom and other tenements.⁵²⁶

      Increased services.What the tenant in villeinage had to fear was not so much arbitrary ejectment as an attempt to raise his rent, or to exact from him new and degrading services which would make him an unfreeman. We cannot altogether acquit the lords of such attempts. The fact that the services described in the later “extents” seem heavier than those described in the earlier, the fact that the debasing merchetum seems to become far commoner as time goes on, these facts [p.361] are not very cogent, for