The History of English Law before the Time of Edward I. Frederic William Maitland
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this so always? There is extant an elaborate opinion given by a lawyer of Edward I.’s day, one Aunger of Ripon, and it is found in so many manuscripts that certainly it must have been considered very sound and useful.571 He says that, according to his masters, there are three cases in which a tenant, who holds part of the soil of the ancient demesne, may use the assize of novel disseisin. The first is the case of a freeholder who holds in an ancient demesne manor, and this we may pass by. The second is where one of the sokemen has enfeoffed some free “outsider” (liber homo extrinsecus) and this feoffee has been left undisturbed for a while by the lord; if after this he is ejected by the lord or any other, he can bring the assize. This case is quite intelligible because if my villein makes a feoffment, I must eject the feoffee at once or not at all, since otherwise he will be able to bring the assize against me:572—for the law of the thirteenth century is rigorous against self-help. But thirdly, if any “outsider” ejects a sokeman, the latter can bring the assize; this must be so (argues Aunger) for if someone ejects my mere villein, that villein by my leave will be able to recover in an assize; a fortiori we argue to the case of a sokeman whose estate is superior to that of a villein.573 Thus, according to this remarkable opinion, the term “free” when applied to a tenement is a relative term—we shall see in the next chapter that the term “free” when applied to a person is a relative term—for while as between himself and his lord the sokeman is no freeholder, still as regards all “outsiders” he can say that he has a free tenement, and, if ejected by them, he can make good the assertion that he has been disseised de libero tenemento suo. Thus we see that the perplexing terminology of later days which knows of “customary freeholds” which are “privileged copyholds,” has a very ancient root. Even the lawyers of the thirteenth century, [p.379] or some of them, maintained that for certain purposes the sokeman had “a free tenement.”574 Nor is this strange, for the class which was using the little writ of right was miscellaneous. If, on the one hand, it included men like those of King’s Ripton who were stamped with every common mark of personal servility, it included on the other hand men who had valuable interests in tenements, which they sold and mortgaged and settled upon their families without any interference on the part of their lord. Such men are brought before us by a judgment of Edward I.’s day; when they sell their lands they do not even surrender them into the lord’s hand, they make a feoffment as a freeholder would; they make charters of feoffment, and then the alienation is enrolled in the manorial court; for all this, however, “no writ runs among them but the little writ of right.”575
Later theory and practice.We must not here recount the subsequent fate of the tenants on the ancient demesne, nor would this be easy, for it is clear that, if the law itself did not undergo much change, the terms in which it was expressed were unstable. But we may note that an opinion grew up that the class protected by the little writ of right was really a class of freeholders, and then the inference was drawn that tenants who alienated their tenements, not in the freeholder’s method by feoffment, but by a surrender into the hands of the lord, could not use the little writ because they were not freeholders. This doctrine comes to the front early in the fifteenth century, at a time, that is, when it was no longer capable of doing much harm to those “sokemen of base tenure” whom it excluded from the benefits of the little writ, since under the name of copyholders they were on the point of obtaining a perfectly adequate protection under other writs. But, as already said, the difficulty was prepared of old.576
[p.380]Why is a special treatment of the ancient demesne necessary? And now two questions may occur to us. First, why should there be a peculiar class of customary tenants on those manors which have been in the king’s hand ever since the Norman Conquest? Secondly, why should the king interfere for the protection of customary tenants even when those manors have passed out of his own hand? The second question is the more easily answered. There has been an application of a very general rule of law which has come before us on more than one occasion. It may be thus stated:—the transfer of a lordship from one person to another should not affect the position of the tenants; as regards them it is res inter alios acta. When an honour escheats to the king, the tenants of that honour do not become liable to the special burdens which lie on those who are regarded as having held immediately of the crown from all time; the honour has still a notional existence for their benefit. Even so when the king parts with one of his ancient manors and puts a mesne lord over it, the tenants are neither to gain nor to lose by this transaction; as regards them, their rights and duties, the manor is still conceived as part of the royal demesne. A bye motive may secure the observance of this general rule in the case that is now before us. The king hardly regards these manors as having utterly ceased to be his, for, to say nothing of a possible act of resumption577 and to say nothing of escheats and forfeitures, many of these manors are let out to the mesne lords at substantial rents; they are held at “fee farm” and the king is concerned to see that the security for his rent is not impaired. It would be impaired were the tenants ill treated. This point, of importance in social history, is brought out [p.381] by many actions for “waste” sued by wards against their guardians; the guardian has not merely cut down trees and pulled down houses, but he has “destroyed,” “exiled” or impoverished the villeins.578 Still the desire to keep well stocked and well managed the manors which supply the king with his fee farm rents, can serve but to give a little additional force to a general rule of law. It is a rule which cuts both ways. If we find tenants eagerly contending that they are on the privileged soil, we may also find, though hardly so often, a lord affirming that his manor is on the ancient demesne while the tenant denies this. The special law for the old patrimony of the king will profit now one and now the other party to the tenure.579
The king preserves an old settlement.We come then to the main question. Why on those manors which have never left the king’s hand is there a large class of tenants such as are hardly to be found elsewhere, a class of “sokemen,” holding in “privileged villeinage”? All the evidence that we have conspires to tell us that there has been less change on these manors than elsewhere, and that the phenomenon before us is an unusual degree of conservatism. In the first place, the very name of “ancient demesne” shows us that the law supposes itself to be conservative. It is maintaining the Conquest settlement. To decide the question whether a manor be ancient demesne or no, it will go back far beyond all ordinary terms of limitation and prescription, far beyond “the beginning of legal memory”; it will be content with no evidence save that of the great survey. Nay in theory the ancient demesne gained its specific quality before Domesday Book was made. The lawyers of the fourteenth century had some doubts as to the exact moment of time at which the manor must have been in the king’s hand in order to make it ancient demesne for good and all, and the rule of evidence that they had adopted, namely that [p.382] no testimony was admissible save that of Domesday Book, must have tended to cause some little confusion; still on the whole they think that the privileged manors are “the manors of St. Edward.”580 In this, though hardly in any other, context they will go behind the Norman Conquest. In the second place, Bracton regards these sokemen as an ancient race; it holds its lands under a great concession made to it soon after the Conquest. If new settlers come onto the ancient demesne, whatever rights they may gain under agreements made with their lords, they are not sokemen nor entitled to the peculiar privileges of sokemen. This theory, however difficult of application two centuries after the Conquest, was no idle theory; we are constantly reminded that the special characteristics of the ancient demesne, if they inhere in certain tenements, inhere also in “the blood of the sokemen.” Thus when the men of Tavistock have recourse to a Monstraverunt, it is objected that many of them are adventitii.581 Thus the men of King’s Ripton hold themselves to be a privileged race; even the ordinary rules of inheritance must yield when the choice is between a claimant who is not “of the blood of the vill” and one who is.582 Thus again, Aunger of Ripon treats the little writ of right as a remedy which has place only where both parties are born sokemen, or where one is a born sokeman and the other the lord; against an extrinsecus or forinsecus there may be an [p.383]