sole” was less far-sighted than the “corporation aggregate.”589 And again, the modern cases which introduce us to “customary freeholders” seldom tell us of more than one class of customary tenants on the manor that is in question:—on that manor there are no tenants who are said to hold “at the will of the lord.” Still when all the modern evidence is taken in the mass, it supports the inference that we should have drawn from the state of the ancient demesne. That inference is that the very general absence in the thirteenth century of any class of tenants mediate between the freeholders, who enjoy full and immediate royal protection, and the customary tenants, who (as men are beginning to say) hold at the will of the lord, is of late origin, the effect of legal rules and legal theories rather than of ancient economic facts.
No place for a tenure between freehold and villeinage.With its newly centralized royal justice, the law of the thirteenth century has no place for the sokeman. Even when he is preserved on the royal demesne, it hardly knows how to deal with him, can hardly decide whether he is a freeholder, thinks that he may be a freeholder as regards some and not as regards others. Outside the ancient demesne it proposes the dilemma, “Protected by the king or not protected by the king, and if not protected by him, then held at the will of the lord.” But if we strive to go behind the amazing activity of the king’s court, as behind a new thing, if we think of the freeholder as having to go in the first instance to his lord’s court and hardly able as a matter of fact to get much further, then the edge of the dilemma is blunted. That the application of this logical weapon did some immediate harm to the higher classes of peasants can hardly be doubted. Our legal terminology does indeed suggest that not a few of them, in particular not a few of the sokemen, fell at once on the right side of the line. How else can it happen that “free socage” became the name of a free tenure, a tenure by which even in Bracton’s day barons and knights are well content to hold? But, on the whole, the doctrine of the lawyers seems to have been that any considerable amount of labour service must be villein service, must make the tenure unfree and unprotected, because it cannot but be service which in many particulars will be done at the will of [p.388] the lord. Such a doctrine must have condemned many a sokeman of the twelfth century to hold in villeinage.
The “conventioners.”But of the past history of those tenures which are not freehold we must not speak in this place, for, however sharply the lawyers may contrast the two, villein tenure is, as a matter of fact, closely connected with villein status, a topic which will come before us in the next chapter. We have, however, yet to say a few words about a class of tenants who passed under our notice when we were transcribing Bracton’s account of the ancient demesne. Marked off from the “privileged villeinage” of the sokeman stands the tenure of certain adventitii, who, though they perform services similar to those of the sokemen, do not belong to that privileged race. They are regarded as “outsiders” who have recently come to the manor, who have taken tenements under agreements (conventiones), who must perform agricultural services and who are protected by law; but their title to protection is given them not by the custom of the manor, but by the terms of the agreement; we have called them “conventioners.”590 Bracton’s own opinion seems to be that their rights are not “real” rights; on the contrary, they are personal, contractual rights, to be enforced not by possessory or proprietary actions but by an action on the covenant. However, he admits that others thought differently, would have allowed these men the possessory assizes and therefore, for this would follow, would have treated them as freeholders. Bracton’s doctrine about this matter represents, so we may guess, rather a passing inclination than a settled practice. Two great causes made against its perdurance. In the first place, the theory that the sokemen were a privileged race, that the privilege ran, if we may so speak, rather in their blood than in their tenure, though we may find many traces of it, could not be permanently maintained. The day for racial laws was past, and as a matter of practice no barrier could be kept up between the natural progeny of the sokemen and these “adventitious” conventioners. In [p.389] the second place, the whole tendency of English land law was setting strongly in favour of the principle that any one who has a right to be in the occupation of land has a right in the land, and whilst in occupation has a true possession of the land. This is seen most clearly in the treatment of tenants for terms of years. For a short while an attempt had been made to treat them as having rights, but merely personal, contractual rights; but, before Bracton wrote, the attempt had broken down, and the termor was considered as possessing the land and as having rights in it. And so with these conventioners:—Bracton’s suggestion is very interesting, especially because he thinks that even an unfreeman may have a remedy upon a covenant against the covenantor; but we cannot find that it struck deep root.591 On the whole, outside the ancient demesne, the law maintains the dilemma, “Freehold, or unprotected by law”; while even on the ancient demesne, “Freehold, Absolute Villeinage, Privileged Villeinage (Sokemanry)” exhaust all the possible cases.
Conclusion.Thus at the end of this prolonged account of the law of tenure we are brought back to a remark with which we started. Everywhere we see at first sight a simplicity that is truly marvellous. All the variegated facts of landholdership have been brought under the sway of a single formula, “the formula of dependent tenure,” and the only modes of tenure which the law distinguishes are very few. If the reader does not think that our law is simple, he should look abroad or he should look at the facts which our law has endeavoured to master. Has endeavoured to master, we say, for it has not succeeded at every point in its grand undertaking. It has dealt rudely with the facts, it has neglected many a distinction of great social and economic importance, it has driven its trenchant dilemmas through the middle of natural classes and athwart some lines of customary morality; but it has been bold and strong and therefore simple.
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