A Concise History of the Common Law. Theodore F. T. Plucknett

to commend themselves and their land to some local magnate who seemed more likely to give them protection during such troubled times as the Danish invasions and the fairly constant wars between petty kingdoms. The weakness of the central power, too, undoubtedly promoted the growth of small local jurisdictions which were ready to undertake the task of repressing crime and organising military defence. This process was very probably hastened by the heavy burden of taxation. In many parts of the world, even to-day, it has been found necessary to curb the activities of the capitalist who takes advantage of a small landowner who is unable to meet his taxes. In pre-Conquest days no such limits were ever thought of, and it is extremely probable that a great deal of free land was converted into land dependently held under the pressure of taxation. This did not mean that the poor owner was dispossessed; the change was principally to burden him with services in money, labour or products payable regularly, in return for which the lord took upon himself the public burdens of the property. In this connection it is essential to remember that taxation in the middle ages did not usually recur at regular intervals; the small man who had little economic reserve might therefore have to meet sudden liabilities quite beyond his means, although if those liabilities had been evenly spread over a length of years they would have been much less burdensome.

      These dependent tenants were, it seems, originally freemen; there is no evidence of any extensive number of slaves or bondmen in early Anglo-Saxon England. In the course of time, however, the burdens upon these tenants steadily increased; more and more labour becomes due, and the increasing arbitrariness of its exaction will emphasise the baseness of the tenure. By the time we get to Domesday Book the development of serfdom has rapidly proceeded. On many manors it seems to be completed; on others a few faint traces of freedom still remain, and this is particularly so on the vast but scattered estates of the Crown. Throughout the middle ages these “sokemen of the ancient demesne” will be accounted as slightly higher than the villeins, and centuries later we shall find ambitious bondmen having lawyers search Domesday Book for them in the hope that it may turn out that their manor once formed part of the ancient demesne of the Crown.

      In the majority of cases, however, these once free tenants became servile. Besides this lordship over land there was a good deal of personal jurisdiction. There are various origins for this also. Doubts have recently been cast upon Maitland’s view that the Anglo-Saxon “sac and soc” included the right to hold a petty court, to compel tenants to attend it, and to take profits from it.¹ In those cases where a manor contained freemen as well, there may have operated the universal feudal principle that every lord can hold a court for his free tenants. Where the whole area of an ancient village community had fallen into the power of a lord it was natural that he should supervise the whole business of arranging the agricultural economy of the inhabitants, for, in spite of all the feudal superstructure which the common law has erected, the foundation of the later manor is often an ancient village community.

FRANKPLEDGE

      To all this must be added the system of frankpledge which later became typical of a good many manors. Its history can be clearly traced back to the Anglo-Saxon period where we find the institution of friborh. “Borh” is the root which we have in the modern word “borrow”, and seems to have the significance of security or surety. Its general feature is the provision for every person of some other persons who shall be borh or security that whatever moneys have to be paid will be forthcoming, and that if necessary the party can be produced in court. A master was always borh for his servants; members of a family might be borh for one another; or gilds might be formed whose members undertook to be borh for their brethren. To all this must be added the obscure institution of the tithing whose root significance is a group of ten men, naturally suggesting some intimate relationship with the hundred. Eventually the tithing became a territorial division with a tendency to coincide with the vill or township, and the tithing-man, its head, became the village constable. Cnut required his subjects to be in tithing and in borh as well,¹ and regular means were established for ascertaining that every person (who was not of some substance) was duly enrolled in tithing and in borh. This machinery was operated by the sheriff through the hundred court. At the time of the Conquest it seems that lords were able to shift their responsibility of being borh for their tenants on to the tenants themselves;² this change was not very difficult, especially where the lord either owned or controlled the hundred court which had the duty of working the tithing system. The result was known to the Norman lawyers as frankpledge, and lords who owned hundred courts might also have the additional right (which normally belonged to the sheriff), of verifying the proper enrolment of every tenant in a frankpledge. This was called “view of frankpledge”.³

Under seignorial influences, then, we have seen the vill gradually falling under the control of the lord of the manor, save only for a few important police duties which the Crown imposed upon the vill direct, and even here it may be that the lord found ways of taking a profit. The institution next above the vill, the hundred, likewise fell into private hands in numerous cases, and in many instances the lord of a hundred could exclude the sheriff from his tourn in that particular hundred and hold it himself as a “court leet”. In later times, legal theory attributed to many manors three different courts—court leet, court baron, court customary. Even when the theory was current law, there were practical difficulties in separating the three jurisdictions¹ and during the middle ages there was little attempt to draw fine distinctions. The leet was the most distinctive, with its view of frankpledge: for the rest, a general and wide jurisdiction was exercised without regard for speculative difficulties.

A MANORIAL COURT AT WORK

      An interesting example of a manorial court (with a court leet held, as usual, twice a year) is to be found at Littleport near Ely, and a few extracts from its rolls² will give a good idea of the vigour and usefulness of such courts, and explain, incidentally, why some boroughs found it useful to acquire from the Crown a grant of leet jurisdiction. As an example of its most solemn form of procedure we may take what looks very much like an original writ³ addressed by the lord of the court (the bishop of Ely) to his steward in 1316: but more typical of its usual activities are the numerous cases of petty offences, principally larcenies, which are punished by banishment⁴ and offences against the by-laws relating to the agricultural arrangements of the village—and like most mediaeval communities there was a strong protectionist policy which even went so far as to fine persons who “exported” eggs “to the great destruction” of the people.⁵ Two men incurred a fine for having “falsely, maliciously and in contempt of the lord, defamed his court by saying that no one can obtain justice there”.⁶ Civil cases illustrate the wide variety of remedy obtainable in the court. A seller who warranted two ewes as sound has to pay fine and damages when they turned out to be diseased,⁷ and the owner of a dog has to pay for the damage it does:⁸ Rose called Ralph a thief, and Ralph called her a whore, and so both are fined, and since the trespass done to Ralph exceeds the trespass done to Rose she must pay him damages of twelve pence for the difference.⁹ Slandering a man’s goods so that he lost a sale is visited with fine and damages.¹⁰ Beatrice, who should have made a shirt for Agnes, has to pay one penny damages for failing to do so, and in at least two cases of contracts to do work, the court ordered the defaulter to be distrained until he did it—remarkable examples of specific performance.¹¹ These and many other entries show how vigorous and flexible was this manorial law in the period around the year 1300, when it is certain that the common law administered by the king’s courts at Westminster gave no remedy for the breach of simple contracts, nor for such torts as slander.

      In these cases it will be seen that prosecutions are on the presentment of a jury. In manors which had not received (or had not assumed) this royal right, it was the bailiff who prosecuted.¹

      The efficiency of the manorial form of government is attested to a remarkable degree in the history of Manchester. This rich and flourishing community was a manor belonging to the Mosley family, who purchased the manorial rights in 1596 and continued to enjoy them until 1845, when the municipality (created in 1838) bought them for £200,000.

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