Agricultural Services by 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.