Agricultural Services

Paul Vinogradoff
1900
Economic Journal, Volume 10, 1900.
People sometimes wonder at the interest taken by the learned
in ancient times and things bygone, when such a variety of
pressing problems confront us in the present and the immediate
past. Without assuming to state all the scientific and
psychological reasons of this curious fact, I should like to
point out one, which strikes me as significant. Modern studies
commonly lack an attraction which comes often as the reward of
research applied to antiquity -- the attraction of reducing the
variety of incidents and fluctuations to a few ruling principles,
of evolving order and reason out of chaos by getting hold of
organising ideas and providing them with suitable catch-words.
Modern times are too bewildering in their proximity and
complexity, ancient times admit of an easier survey and are not
so rebellious to the discipline of systems. What does not the
single word @ effect for the comprehension of the classical
world!
The mediaeval period, taken broadly, is also capable of being
brought under a few dominant conceptions. One of those would
undoubtedly be the notion of service, the notion that all forms
of material possession are to be considered not in themselves but
in relation to personal obligations arising from them. A piece of
land was taken primarily not as an estate, or a plot, or an area,
but as a tenure-by knight's service, or burgage, or villainage,
or whatever it might be else. It is well known what deep traces
this mode of considering society and land-law has left in the
England of the present day with its freeholds, copyholds, manors,
etc.
Economically perhaps the most important tenure of all was
tenure by villain service, as it provided the basis of society.
What were the rules separating it from neighbouring tenures? It
has been said, that the all important point in the classification
of peasant holdings was the degree of certainty of the services
rendered by the tenants. If those were certain, the holding was
considered socage and protected at common law, if uncertain, it
was deemed villainage and surrendered to manorial custom. It was
possible to apply the dividing test, because, although the amount
of work may have in most cases been tolerably well fixed by
custom even in regard to villains, although these last, as well
as the manorial officers, knew how many days' work would be
exacted in the course of a week, still there was much latitude in
regard to the kind of work to be done. When a villain went to bed
on Monday, he did not know whether on Tuesday he would be called
up to dig trenches or repair hedges, or carry loads or shear
sheep. As a consequence of this the royal courts declined to
ascertain the relation between lord and man and to protect this
last in regard to services and tenant right.(1*)
This looks like a chain of close reasoning, but I should like
to test its links by such contemporary evidence as we possess; it
would be especially important to make out, in what connection the
two main facts on which it rests, the uncertainty of labour
service and the denial of protection by the Royal Courts stand to
each other. Was the second a mere consequence of the first, or

was the first produced to a great extent by the second? Surely

these are not questions indifferent to students of the economic
and legal development of England.
What rouses one's suspicions as to the soundness of the
above-mentioned construction is the stress laid on the
consideration, that villain services may be very certain in
amount, but that they are necessarily uncertain in kind. The
proposition is important to the course of the argument: it is
drawn up to meet the common observation, that the labour services
of villains get fixed by custom, described in custumals and
valued as to their certain amount. Evidently the manorial lords
were not afraid of loosening and endangering their hold on the
peasantry of their estates, when they allowed customs to grow up
which settled the most minute particulars as to the performance
of services, as to the number of days and hours to be devoted to
them, and even as to the obligations of manorial economy in
regard to the labourers.
From the point of view of manorial management all the variety
of these ploughings, reapings, hedgings, etc., could be reduced
by the common divider of the "day-work" to definite sums, which
represented definite values.(2*) Even the uncertainty in kind was
very restricted. The days for ploughing and harrowing, for
instance, often get determined, as well as the seasons of other
works.(3*) Still there was undoubtedly some uncertainty in this
sense, that when there was no work immediately dictated by the
natural requirements of the seasons, the labourer might be
directed either to weed the field, or to help in setting up
enclosures, or to carry products to the neighbouring market, and
the like. But if these services were matched against each other
by minute equations,(4*) if in the manorial account they
represented equal values of 1d. or 1/2d., was it so very
material, whether the peasant's Wednesdays or Fridays could be
employed by the steward on one kind of work or on two or three
different kinds? The hired labourer is generally subjected to a
great variety of commands on the part of his employer, but this
does not affect the fundamental position, that they stand to each
other in a relation of contract. If the uncertainty of the choice
for services was the origin of the "disfranchisement" of the
tenant in villainage and the test of the quality of his holding,
we should expect the custumals and inquests to pay special heed
to it, perhaps to work it out and spread it, as they did with
merchet, the sign of villain status, but we see nothing of the
kind, and the whole arrangement aims at establishing the customs
as to labour as definitely as possible. It is not for nothing
that the name of customary tenant is nearly coeval with that of a
villain and intimately connected with it.(5*)
The main support for the contention, that the uncertainty in
the choice of services was the test of villain tenure, has been
found in Bracton. He refers sometimes to the contrast between
certain and determined labour service, as a possible incident of
free tenure, and uncertain, undetermined labour service as a
consequence of villainage. Twice he goes the length to explain,
that by service uncertain is meant when a man does not know in
the evening what he may be called up to do in the morning, that
he is bound to do whatever the lord commands him.(6*) These words
are, however, so weighty and fargoing, that they imply not the
possibility of claiming one performance instead of the other
within limits well defined by custom, but the assumption that the
entire customary arrangement is based on the lord's will, and is
subject to thorough alterations at the lord's command. In
substance, the uncertainty talked of presents itself not as a

convenient test for judging of the condition of the peasantry,

but as the limit of consequences implied by it. The opposition
would be a convention between lord and tenant, or a custom
tantamount to convention, in which possession and services appear
as the result of agreement between two parties, not of the
one-sided will of one of them.(7*) But, in order to make these
general ideas clear in their practical working, it is necessary
to examine them in the light of actual jurisprudence - in their
bearing on pleadings and decisions.
As a matter of fact we find, that in the frequent law cases
in point, the question is never tried on the issue, whether the
labour performed is determined in kind, or not. To be quite safe,
I will only maintain that it does not happen as a rule, as this
seems sufficient for our purpose. Let us just turn to the
Notebook of Bracton and the Abbreviatio Placitorum, which may be
said, between them, to contain a fair number of specimens of
early thirteenth century jurisprudence. The examination of
services occurs often in these collections. In most of the cases
under discussion the pleadings turn not only on services and
tenure, but also on status, the tenants generally contend that
they are free and hold freely, while the lords maintain that they
are opposed by villains holding in villainage. In some instances
we come across the combination of free men holding in villainage,
however, and, what is more, we need not even restrict ourselves
to the study of these particular trials, as in nearly all the
examination of services proceeds alongside of the inquiry as to
incidents of status. We must only put aside the trial by kindred
and the merchet,(8*) although they are constantly appealed to,
because they are considered as arising from personal bondage. All
other services and payments used as tests - restrictions on power
of alienation, reeveship, rules of descent, tallage, labour
services - are consistent with both eventualities, that of
personal villainage and that of a villain tenement in the hand of
a free person.
Turning to the law cases, we may easily classify the facts on
which they turn under two heads: firstly, there are casual dues
and occasional obligations, such as fines for licence of selling
stock, the duty of serving as reeve, borough-English,(9*) and the
like; secondly, there are payments and services rendered from
year to year, especially tallage and agricultural work. The
litigants and the juries fasten eagerly on the first, as they
afford easier clues for drawing distinctions; such and such a man
has served as a reeve, whereas the free tenants of the manor
object to serve as reeves; so and so has paid a fine for selling
his ox, which he ought not to have done if he was free to dispose
of it, this particular man has inherited his holding as the
Youngest of the family, whereas the free tenements of the manor
are partible or go to the eldest.... The facts mentioned not
being of everyday occurrence, were marked more clearly with the
stamp of villain and free custom.
The second class of facts, just because they were more
common, did not fit so easily into the distinctions of free and
servile tenure; there were a number of instances when the
contrasts were not so sharply drawn, and the daily life of both
divisions of the peasantry went much on the same lines. Still the
jury and the courts had to make up their minds about the general
aspects of free and unfree services. Tallage presented the easier
clue. The right of the lord to tallage his tenants is often
mentioned as a proof that they did not hold freely.(10*) Of
course, if the lord has the right to require money from his
tenants at his own discretion, they are legally unprotected

against exactions and in so far unfree. Therefore tallage by

itself is sometimes coupled with merchet as the most patent
expression of subjection.(11*) The probability of there existing
some custom as to the repartition of the tax and the necessity
for the lord to take into account the means at the disposal of
his men did not alter the essential point, that the lord had to
judge by himself what was reasonable in this matter and what
not.(12*) The discretionary power of the lord to raise
contributions from certain tenements, in what way and to what
amount he pleased, is sometimes expressly stated.(13*) Though not
so explicit, the usual reference to tallage is not less
remarkable; it shows that the discretionary power of the lord and
the uncertainty of service of the tenant did not consist in the
choice of one set of duties in the place of another, but in
exacting those duties without any binding restriction.
The same has to be said in regard to the usual labour
service. of the villain. Not in one of the instances given by
Bracton's Notebook or the Placitorum Abbreviatio, is attention
paid to the option of the lord in substituting one kind of
operation instead of another.(14*) In one very interesting case
great stress is indeed laid on certainty and uncertainty as
distinctive characteristics of free and unfree labour-service,
but there is nothing to show that the term has been used in a
restricted sense. The dispute was, whether a tenant who held by
rent, labour-service, and even merehet, was to be considered a
villain on account of the nature of his services, or a free man,
as the services were acknowledged to be certain in kind and
amount. The case was so doubtful, that the jurors (or perhaps the
defendants) asked for a respite in order to obtain an opinion
from Robert of Lexington, one of the leading authorities of the
Bench. The despite was not granted, and the services were
adjudged to be compatible with free tenure,(15*) whereupon the
annotator of the Notebook, seemingly Bracton, marks off the
teaching of the case, viz., that the customs and services, though
villain in character, were certain, and the tenant knew what and
how much he had to do; therefore he could not be considered a
villain, nor his tenement a villain holding, may we add, as an
assize of novel disseisin was granted in regard to it.(16*) In
the report of the case the expression "sciuit quid debet facire,
et quid non" is used; in the marginal notes, the expression is
"fecit servicia et tonsuetidines villanus, sed certas et bene
sciuit quid et quantum." As this annotation is in the nature of a
gloss to the record, we may see in the passages quoted a direct
interpretation of certain service as determined in kind as well
as in amount. The original record is not so explicit, but it
contains an indirect hint in the same sense in so far as the only
question on which issue is expressly joined by the parties is the
point about merchet, the lord laying stress on the servility of
the payment, and the tenant in its being certain in amount. As to
labour, we are left to infer that the work required was as
clearly specified as any rent could have been.(17*)
In this way two facts seem tolerably clear. To begin with,
services rendered from a villain's tenement were indeed
uncertain, but the uncertainty was taken in a wide sense,
implying the power of the lord to exact eventually what services
he pleased.(18*) Secondly, that the uncertainty spoken of could
not be conveniently used as a test of condition. Tests ought to
be clear and unmistakable before all things, like landmarks
which, though placed on the surface of the soil, point to its
fundamental divisions. In this respect the potential uncertainty
of villain service, coupled as it was with a deeply-rooted

customary arrangement,(19*) did not afford a convenient test to

go by. Tallage alone gave a good clue, because it could be made
uncertain in the plainest sense of the word by being raised and
lowered at the will of the lord. In the case of customary labour,
on the other hand, the first thing necessary was to take
abstraction from the customary. arrangement and to presume in
regard to it, either that agricultural work was uncertain as a
rule, unless proved to be the contrary, or that it was considered
as prima facie certain, unless the reverse was proved. We shall
see presently what line was adopted by the courts. But before we
look out for indications in this respect, it will not be amiss to
control our interpretation of the terms certain and uncertain by
the peculiar institution which English feudal law has provided,
as it were on purpose, to check current theories on the manorial
system-I mean ancient demesne.
I need not remind the reader that in the case of ancient
demesne the ordinary economic arrangement of the manor was
supplemented by one figment: the services of the customary
tenants were considered as fixed and determined, and the Common
Law Courts protected them, although by peculiar remedies. For our
purpose the case is the reverse of villainage: if in villainage
we have to make out what uncertain means, in the instance of
villain socage we may learn, what the expression certain (certa
et determinata) allowed and what it excluded. It allowed all the
varieties of week work and custom found on common manors, and
there is no trace of an objection to the lord claiming one
particular performance instead of the other.(20*) It did not
allow of any increase of the customary work and rents, nor of any
arbitrary change in their customary arrangement. Bracton says
accordingly, that the tenants of ancient demesne were holding by
villain services, but certain and determined.(21*) Let us take
note especially, that the Courts did not find any insuperable
difficulty in ascertaining what those services were: it was
entirely a question of verdict, and for the juries and inquests a
little more or a little less detail did not make much difference.
The essential thing was to ascertain the quantity of
"operaciones," the eventualities of extra work and the
obligations of the estate in regard to the labourers. In a word,
the customary arrangement was rendered certain by the peculiar
position of ancient demesne, without being defined or described
in any other way than was the case in ordinary manors.
Bracton calls the services of the men of ancient demesne
villain, though certain. In the curious case from the Note-book
quoted above,(22*) the free right of the tenant is recognised in
regard to tenure as well as to status, and still his services are
described as villain. The limitation is drawn by the fact that
they are determined once for all. This leads us to a number of
cases -- most cases in fact - in which attention was given to the
character of the services. It may be said that in the XIIIth
century agricultural work was considered as prima facie servile.
In our case, B.N.B., 281, the Prior says: Th. owed us villain
customs and services as all the other villains in the manor, that
is, ploughings and reapings, etc. Ploughings and reapings are
constantly mentioned as villain customs, and often the question
in regard to the villain character of the tenement is decided on
the strength of them.(23*) One case, B.N.B., 1819, is
particularly worthy of attention. The tenant acknowledges three
days ploughing and three days reaping besides a rent, and the
Court considers this to be servile and belonging to
villainage.(24*) The ruling is characteristic of the general
presumption on the part of XIIIth century jurists against the

free condition of holdings burdened with agricultural services.

decisions in which the peasantry are described as holding per
furcam et flagelium, by the pitchfork and the flail,(25*) - point
in the same direction, and it may be noticed that they fall into
the early years of the XIIIth century, the time of John and the
very first years of Henry III. The feature in the mind of juries
was regular agricultural service as a symptom of villainage. One
might add that there was a tinge of contempt in the designation.
Later documents speak of the base services of the villains. In a
case of 15 King John there is a characteristic little trait
pointing in the same direction: the defendants, as free men, are
contrasted with the "consuetudinarii" of undoubtedly servile
condition, who perform all sorts of services, and, among other
things, are employed in handling "feces," in fact, acting as
scavengers.(26*)
Needless to say, that the description of all agricultural
labour as villain is a very comprehensive one, too comprehensive,
because, if carried out consequently. it would include all the
labour services performed by socagers, which were not few, and
not always trifling.(27*) But there it stands, and it cannot but
mean that agricultural service was the burden of villain tenure,
as a rule, whereas the immunity of socage labour appears in the
light of an exception. There can be no doubt that villain service
meant agricultural service. But surely villain service was due,
as a rule, from villain tenants, and villain tenements, as a
rule, were tenements of villains. Other combinations were not
impossible, but exceptional. If we compare the cases in detail,
we find that the tenants in villainage are performing the regular
labour, the week-work of the manor, whereas the socagers are
habitually called up for a few days in the year. This difference
in quantity means a great deal, of course, but it would be
difficult to make it the basis of distinction, and in many cases
it was very hard to draw the line between the two
conditions.(28*) The burden of proof lay, anyhow, on the socager;
it had to be shown that the labour services usually regarded as
villain services were performed in a certain and well-defined
manner, as if by convention.(29*) It is curious to notice that
men pleading for free tenure, and juries testifying to it, in
their search of facts to be accepted as tests, are inclined to
lay stress on the obligation on the part of the lord to provide
food for the labourer, as implying an agreement between the two.
Ad cibum proprium, ad cibum domini, are expressions which play a
conspicuous part in the proceedings.(30*) It was not a very
satisfactory clue, as pure villains often received food from
their lords, especially in the time of the autumn boonworks, but
it afforded a valuable indication, if the practice could be shown
to extend to most or all work-days claimed by the manor.
I have been speaking hitherto of the ideas dominating feudal
jurisprudence, and not of the many indications of the fact that
this jurisprudence was welding together and transforming very
different conceptions and conditions. But it is difficult to read
the thirteenth century records of cases relating to villain
tenure without being impressed by the notion that we are facing a
new departure, a jurisprudence hesitating, feeling its way on
freshly occupied ground. Already the fact that people fasten on
many and discordant tests goes far to prove it; merchet,
reeveship, borough English, alienation of cattle, examination of
week-work, food obligations of the manor are produced
concurrently and simultaneously, and sometimes jury and judges
find themselves nevertheless at a standstill. There is some
dispute about every one of the tests applied, not even excluding

merchet, the plainest. Sometimes the courts declare principles

which, if applied with consequence, would obliterate the
distinction between villainage and socage; sometimes, again, they
"favour liberty." One thing seems pretty clear in the midst of
all this confusion; the division between certain and uncertain
services as it was gradually evolved by legal theory, and the
practice of the courts was, to a great extent, an artificial one,
momentous in its consequences, but built up on rather slight
foundations. It divided the peasantry on the right and the left
into classes as far apart from each other as the sheep and goats
of Scripture, but it was not easy to see how the original
difference between sheep and goat arose-it was not a thing of
nature.
The theory propounded by the lawyers looked merely as an
extension of the doctrine of serfdom to the whole class of
villains. "Villain service is when a man does not know in the
evening what he may be ordered to do in the morning," wrote the
leading exponent of feudal law. "Everything a villain has belongs
to his lord," was another feudal saying which occasionally gave
rise to very unpleasant consequences for the peasant. "To hold in
villainage is nothing else but to say that one holds at the will
of the lord" was a third one, and in all these dicta the theory
of the servile condition of the peasantry at large got sharpened
into legal points. The consoling feature about it is that all
these statements were too absolute for everyday life. The
peasantry were aware, through custom, of the work they had to
perform in the course of the year. The villains enjoyed such
clearly defined rights of possession that their goods were
considered and taxed separately by the State. The distribution
and occupation of their holdings was much more a result of custom
than of arbitrary interference on the part of the lord. The real
meaning of all the dicta was to show to what extreme consequences
the legal construction of certain relations might lead, not to
present either a fair appreciation of their usual working, or the
easiest tests for discriminating them in practice.
If we want to get behind the feudal doctrine, our safest clue
lies in the fact that the whole system is made dependent in the
practice of the early thirteenth century on the point of
granting, or not granting, the assizes and the great writ of
right. In its legal completeness, it is hardly older than these
remedies, and we observe it on its way to formation. I will not
revert to the curious aberrations from the highway leading to the
exclusion of the villains from the Royal courts,(31*) but I
should like to lay stress in this connection on a point noticed
by others, and embodied in no less a document than Magna Charta,
namely on the qualification "free," which was brought in into the
clause about disseisin in the Confirmation of Henry III in
1217.(32*) It squares exactly with the formula of the writ of
novel disseisin, which was rightly considered and applied as
excluding villains and tenants in villainage.
But was there no material distinction to go by in the
discrimination by the courts between the people they were to
protect and those to whom protection was refused? Surely it was
no matter of arbitrary selection on the part of the judges. I
think that the analysis of cases, as previously given, goes to
show that the material distinction from which the lawyers
started, was that of agricultural service, not more and not less.
They assumed that agricultural service, as such, was villain
service and a presumption of villain tenure, unless proof of the
contrary was forthcoming. It would have been nice and clear
indeed, if the whole of English society could have been arranged

under the headings of villains holding by rural work, socagers

holding by rent, knights and serjeants holding by military
service, clergy holding by ecclesiastical obligations! The
reality of things did not quite admit of such simplicity, and
produced variations which puzzled lawyers and confuse modern
learning.(33*) But the general drift of jurisprudence, following,
as it did, on the lines of the ascendency of conquerors and
military landlords, produced a system in which the great mass of
the peasantry was left rightless and unprotected, rightless
because unprotected.
I am anxious to present this view of the legal situation,
because I think that it is the only one which accounts for
historical development. It has been said that the denial of legal
protection is the consequence and not the cause of the
uncertainty of villain tenure. This might have been true, if we
could suppose that it was all settled before the thirteenth
century what certain and uncertain services were. As a matter of
fact, we find the courts of that age in the process of settling
it by their grant and refusal of protection, and thereby
contributing powerfully towards the spread of servile customs and
of uncertainty in the arrangement of peasant life. A
jurisprudence developing on old prefeudal lines would have
considered the slave only as uncertain in his will and work, and
would not have shrunk from discussing the conditions of rural
economy. The turn towards other views was reached when the
liberties conferred by the reforms of Henry II and by the Great
Charter were restricted to the narrow strip of territory formed
by free tenements. Henceforward the course of development lay in
the gradual enlargement of this privileged shore. What the
refusal of jurisdiction meant may be illustrated by the words of
an ancient French jurist, who had to tell of similar facts in his
own country: "Et ce qu'en dit que totes les choses que vileins a
sont son seignor, c'est voirs a garder; car s'eles estoient a son
seignor propres, il n'auroit quant a ce null difference entre
serf et vilein; mes par nostre usage n'a-il, entre toi et ton
vilein, juge fors Deu." (34*)
NOTES:
1. Pollack and Maitland, History of English Law, I, 351 ff.
Lately Page, End of Villainage, New York, 1900, pp. 11, 25.
2. See, for instance, the account of Wilburton in Prof.
Maitland's remarkable paper in the English Historical Review,
1891, pp. 419, 423, 429.
3. The following description seems definite enough: Rogerus de
Grava tenet dimidiam virgatam terre pro 3 solidis, et a festo
Sancti Michaelis usque ad festum Sancti Martini debet arare
dimidiam acram qualibet ebdomada, et a festo Sancti Martini usque
ad festum Sancti Andree qualibet ebdomada tres partes dimidie
acre. Et a festo Sancti Andree usque ad Annunciacionem Sanctae
Marie qualibet ebdomada unum perticam, exceptis 12 diebus
natalis. Et ab Hoccadei usque ad Pentecosten in quindecim diebus
unum carrum cum carro domini. Et preterea usque ad festum Sancti
Petri ad vincula qualibet ebdomada dimidiam acram. Et a festo
Sancti Petri usque ad festum Sancti Michaelis in quindecim diebus
carrum suum ad opera domini. Et habebit garbam suum quando
carriat bladum, et carrucam bis in anno in hieme et in estate, et
hoc quod arant debent hereiare ter, et falcare, et tres acras
metere, et habere tres garbas uel reddere 5 solidos pro omni

servitio. Such are the labour services rendered by the typical

villain of Bateombe, Somerset, a manor of Glastonbury Abbey. Most
of the inquisitions of this monastery of 1189 are of the same
character.-(Liber Henrici de Soliaco, ed. for the Roxburghe Club,
p. 34.)
4. The Ramsey documents are very explicit in this respect. F.i. A
festo autem Sancti Michaelis usque ad Hokeday, qualibet septimana
operabitur die Lunae, Martis et Mercurii quodcunque opus sibi
fuerit ad tascum assignatum, faciet etiam si necesse fuerit, die
Jovis, Sabbati et Dominica averagium apud Rameseiam vel ubicumque
sibi praecipiatur infra hundredum... Qualibet etiam dic Veneris
cujuslibet septimana per annum, praeter Natali et quinque
septimanas in autumpno... arabit dimidiam acram... Et si in plana
terra, vel veteri fossato fossare debeat vel clausturam facere, a
festo Sancti Michaelis usque Hokeday fossabit et claudet usque ad
uonam, ab Hokeday usque ad festulll Sancti Michaelis per totum
diem, colliget et portabit unum fassiculum. Et si per praedictum
tcmpus portare non debeat, colliget quatuor, etc.... Omnia vero
opera potest dominus pro voluntate sua censum ponere, quae
aestimautur in hyeme per diem obolum singillatim, in aestate vero
unum denarium, in autumno tres obolos, secundum etiam facultatem
suam. (Cartulary of Ramsey, Rolls Series, I., 310, 312.)
5. We read already on a plea roll of Richard I's time: Hugo - dicit quod non possunt neque debent R. et W. perhibere
testimonium, qula villani et consuetudinarii. (Pipe Rolls
Society, XIV, Rolls of Richard I, a. 1194-1195, p. 48)
6. F. 26: est enim purum villenagium, a quo praestatur servitium
indeterminatum, ubi sciri non poterit vespere, quale servitium
fieri debet mane, vz. ubi quls facere tenetur quicquld ei
praeceptum fuerit. - f. 208: Rurum autem villenagium quod sic
tenetur, quod ille qui tenet in villenagio, siue liber sit, siue
servus, faciet de villenagio quicquid ei praeceptum fuerit, nec
scire debeat sero quod facere debeat in crastino, et semper
tenebitur ad incerta. Taliiari autem potest ad voluntatem domini
ad plus vel ad minus. Item dare merchetum ad filiam suum
maritandam, et ita semper tenebitur ad incerta, ita tamen quod si
liber sit, hoc faciat nomine villenagii. cf. ff. 195, 199, 200.
7. F. 26: Utrumque tamen tenere poterit per certa servicia et
expressa, ex conventione tamen, ad vitam vel in fendo, et quo
casa conventio et consensus dominorum facit ei liberum
tenementum, quamvis opera faciant servilia, tallagia et alia, cum
sint certa et determinata.
8. Bracton, l.c., cf. f. 205.
9. Of course, a very distinct local custom of servile
Borough-English in some places did not preclude the occurrence of
Borough-English as a rule of free descent in other places. In
Common Law it had no specific meaning either the one way or the
other.
10. F. lx. Bracton's Notebook, cases 794, 1005, 1062, 1067.
11. B.N.B., 1225, 1210. In this latter case the wording is
negative - nec dat merchetum pro filia, nec talliatus est.
12. B.N.B., 1062: The lady of the manor claims, among other

things, quolibet anno potest talliare eos semel secundum quod

racionabiliter poterunt.
13. Placitorum Abbrev. 18 Ed. I., r. 12, 221: Manerium de
Gressenaule... non est de Antiquo Dominico, etc., per juratam in
qua dicitur quod Thomas de Rothelaund est villanus Jordani
Foliott. Et quod ipsum possit talliare de-alto et basso pro
voluntate sua. Et quod facit merchettum carnis et sanguinis.
B.N.B., 1041: iurati dicunt quod... dabit tallagium cum alii
homines eiusdem ville taillati fuerint quandoque plus, quandoqne
minus.
14. In B.N.B., 1005, the lord maintains that he was entitled by
custom not only to those services which were acknowledgod by the
tenant, but also to others, f.i., he could either order some
ploughing and reaping work to be done and exact a specified
amount of wheat in addition to those, or else he could relinquish
the claim for wheat and take double the work. The stress does not
lie on the possibility of substituting one thing for the other,
but on the character and amount of the exactions. The verdict for
the lord does not pay any heed to the varieties of labour
arrangement, but starts from the similarity of the work to that
of recognised villains of the same manor - a very common
expedient on the part of the courts. (Et quia idem W. cognoscit,
quod omnes homines eiusdem ville sunt villani excepto uno et
cognoscit quod communicat cum eis in omnibus operacionibus
faciendis et de rebus similiter cum eis capiendis...).
15. B.N.B., 281: Prior dicit quod assisa inde non debet fieri,
quia idem tenementum fuit villenagium suum, et idem F. villanus
suis et debuit villanas consuetudines, sicut omnes alii predicti
manerii, sicut arruras et messuras, et filiam suum maristare non
potuit, sicut homo liber. Et T. cognoscit quod debuit quasdam
consuetudines ad cibum Prioris, et quod debuit ei unum redditum
et certum finem pro filia sua, et dixit quod liber homo et libere
tenult.... Et Prior dicit quod in parte bene recordantur
(justiciarii) et in parte parum dicunt, quia iuratores dixerunt
quod debuit 12 denarios pro filia sua maritanda et debuit plures
alias consuetudines et petierunt respectum ut assensum habere
possent a domino Roberto de Lexintona, utrum hoe esset liberum
tenementum ex quo seiunt (corr. sciuit) quid debuit facere et
quid non, et nullum respectum hab ere potuerunt.
16. Nota de exceptione opposita quod querens villanus fuit quia
fecit servicia et consuetudines villanas sed certas et bene
sciuit quid et quantum.
17. The statement in B.N.B., 1210, is not so clear as in 281, but
it admits of the same explanation.
18. In addition to the cases already quoted I will just call
attention so the following: Plac. Abbrev. p. 177, 52 Henry III,
r. 12: The plaintiff maintains that he and others held of the
Manor of G -, "per certas consuetudines," as free sokemen, the
consuetudines consisting of some ploughings and reapings in
addition to a rent of 44d., whereas the lord distrained them, ad
alia servicia sibi facienda ad voluntatem suam. Cf. Plac.
Abbrev., p. 95, inc. a. Joh. r. 1.
19. Consuetudines et servicia always go together.

20. The customs of King's Ripton, Hunts, are a good specimen. We

have three notaions of them which differ in detail, but coincide
in the main-the records of a trial in the Select pleas of
manorial courts (Selden Soc.), and two custumals in the Ramsey
Cartulary, I, 397, and II, 61. I will quote a passage from
Maitland's translation of the lord's claim in the suit. Though
recognising the ancient demesne qualifications, he maintained,
among other things, "that they had to perform one work, in every
week from 29th September to the 1st of August at any kind of work
that might be commanded them by summons. Whatever be the kind of
work that they ought to do, saving in the wood, they ought to
work each day from sunrise to sunset." Op. cit., pp. 102, 103.
21. P. 208. Est etiam aliud genus villenagii quod tenetur de
domino rege a conquestu Angliae, quod dicitur socagium villanum,
et quod est villenagium, sed tamen privilegiatum.... Villana
faciunt servitia, sed cerla et determinata.
22. B.N.B., 281.
23. F.i. Placit. Abbr., p. 25, 1 Joh., r. 19. C. dicit quod A.
villanus est, quia ipse debet arare et metere et auxilium dare
annuatim per consuetudinem et quod non potest sine licentia
filiam suam maritare. cf. B.N.B., 1030, 1062, l067.
24. B.N.B., 1819. - Unde pred. R. ei non cognoscit nisi predictum
redditum et araturam et messuram, sed quia illa sunt servilia et
ad villenagium spectantia et non ad liberum tenementum,
consideratum est quod magna assisa inde non jacet inter eos, sed
fiat inquisicio per 12, tam milites, eto., ad recognoscendum.
25. Plac. Abbr., p. 23, M. I. Joh., r. 14: R. de Stoke tenuit
unam virgatam terre cum pertinentiis in Stoke ad furcam et
flagellum et in villenagio. Ib., p. 23, M. 2 Joh., r. 5;23, p.
92, M. et H., 15 Joh.: Juratores dicunt quod N. et N. pater suus
tenuerunt tenementum suum in A. per consuetudines serviles ad
furcam et fiagellum, et non potuerunt filiam suum maritare sine
redempeione. B. N. B., 1419: Quia villanns fuit et terram suam
defendidit per furcam et flagelium (a. 1220). Cf. Villainage in
England, 170.
26. An extract from the record is printed in the Plac. Abbr., p.
90, T. 15, Joh., r. 20, but the passage to which I refer in the
text, and another not less interesting one, have been omitted. I
may be excused, therefore, for giving the verdict of the jury in
full from the original roll in the Record office. See Appendix.
27. Plough work cannot, however, be considered as characteristic
for socage in general. The etymological attempt at deducing
socage from soc. a plough, does not mean much. It may have had
its origin in speculations as to the meaning of "villain socage"
which, of course, was agricultural, but merely as a species of
villainage. Cf. Britton, II., B: Et pur ceo qe teus sokemans
sount nos gaynours de nos terres, etc.
28. Plac. Abbr., p. 125. M., 31/32 Henry III, r. 16: Vicecomes
diligenter inquirat, si predicti R. et alii tenent tenementa sua
de predictis A. et A. in predicta villa libere et hereditarie per
servicium 9 solidorum per annum et faciendo tres arruras et tres
hercuras et tres messuras in autupno... vel si idem R. et alii
teneant tenementa sua in villenagio... reddendo pro qualibet

dimidia bovata terre tres solidos per annum et faciendo eis

quatuor arruras et quatuor hercuras et quatuor messuras in
autupno, et dando singuiisannis taliagium ad festum Sti.
Michaelis ad voluntatem ipsorum A et A. et merchetum pro filiabus
et sororibus suis maritandis. The difference seems slender enough
in point of labour-services. But it gets to be very visible in
regard to tallage and merchet. The case Pl. Abbr., p. 52, P., 7/8
Joh., r. 14, may be read as a puzzle. The services are: debet
arare, si habet unam carucam in terram (corr. integram) unam
acram et triturare unam summam frumenti per annum et falcare et
levare fenum Templariorum ad cibum suum proprium. Is the tenement
free or villain?
29. Bracton, f. 200: Si feoffatus est tenendi libere vel in
libero sokagio, ut si per servitium milltare vel per certa et
determinata servitia... recuperabit per assisam, eo non obstante
quod faciat talia servitia, quia tenet libere; si autem in
sokagio villano, sicut de dominico domini regis, licet servitia
certa sunt, obstabit ei exceptio villenagii, quia talis
sokemannus liberum tenementum non habet, quia tenet nomine
aliens. Et quod talis liber homo per conventionem taliter
feoffatus assisam habere poterit, non obstante exceptione
villenagii, videri poterit in rotulo de termino Parsche anno
regni regis Henrici XII in comitatu Warwick de Willelmo de
Bissopest (B.N.B., 281), cum tamen servitia certa sint.
30. See the case from the Plac. Abb... quoted in the Appendix.
B.N.B., 1041, is also a good case in point. Cf. B.N.B., 1005,
1030, 1062, 1210.
31. Villainage in England, 78 ff.
32. Confirmation of 1217 - Nullus liber homo . . . dissaisietur
de libero tenemento suo vel liberatibus vel liberis
consuetudinibus, etc. Cf. Pollock and Maitland, I, 341.
33. I cannot discuss in this paper the very interesting symptoms
of social condition at the time of Domesday. Still, I should like
to call the attention of the reader, in connection with the
uncertainty of ancient distinctions, to the curious customs of
Sokemen in the Inquisitio Com. Cantebrig. (ed. Hamilton) 192-195.
cf. Round, Feudal England. These Sokemen should go for villains
in the light of later definitions.
34. Pierre de Fontaines, Conseil a un ami.
APPENDIX.
Trin. 15 Joh. r. 20, Middlesex (Cecilia folia Alexandri v.
Balduinum Juvenem). Juratores dicunt quod ipsi certi sunt quod
predletus Baldninus fuit seisitus de una vergata terre unde haec
assisa arraniata est et quod ipsi eum disseisiverunt, set
nesciunt, si sit liberum tenementum vel non. Quia si ipse
habuerit carucam, ipsa arabit Domino suo tres acras ad cibum suum
proprium, ita tamen quod in estate dum arat habeat herbagium ad
boVes suos, tan tum modo dum arat. Dicunt eciam quod ipse et aill
debent falcare tres turnos et introducent fenum in grangiam
Domini sui et habebunt pro hoo meliorem mnultonem quem eligere
possint in falda Domini sui. Item ad aliam falcationem debent
similiter ipae et alii humines ejuadem ville tenentes sodem modo,
et fenum introducere in grangiam domini sui, et pro hoc solebant

antiquitus habere unum mullenem de feno, set postea se comperuit

Dominus quod hoc fuit ad gravamen, et communia (coa) locutus fuit
cum eis, quod ipsi ex sua voluntate concesserunt ei quod daret
eis duodecim denarios loco mullonis. Debent sciam in autumpno
facere precarias ad cibum Domini et reddere ad Pascha de qualibet
acra quam tenent unum ovum. dicunt eciam quod nunquam audiverunt
dici de filiabus eorum quod finem facerent cum Domino de eis
maritando neque de bobus suis vendendis. Dicunt ecium quod
antiquitus in septennio solebat Dominus eorum petere auxilium et
ei auxliebantur. Dicunt eciam quod plures sunt in villa illa
consuetudianrii qui debent trahere feces et alia servilia opera,
et alii predicto modo teneies non faciunt. consideratum est quod
per sericia illa non est tenementum illud villanum, et ideo ipse
habeat seisinam suam, et predicti in misericordia.