Column KeyATotal Number of TenantsK35 and under 40 Acres.U85 and under 90 Acres.BHouses or Cottages onlyL40 and under 45 Acres.V90 and under 95 Acres.CUnder 2½ Acres.M45 and under 50Acres.W95 and under 100 Acres.D2½ and under 5 Acres.N50 and under 55 Acres.X100 and under 105 Acres.E5 and under 10 Acres.O55 and under 60 Acres.Y105 and under 110 Acres.F10 and under 15 Acres.P60 and under 65 Acres.Z110 and under 115 Acres.G15 and under 20 Acres.Q65 and under 70 Acres.A'115 and under 120 Acres.H20 and under 25 Acres.R70 and under 75 Acres.B'120 and over.I25 and under 30 Acres.S75 and under 80 Acres.C'Uncertain.J30 and under 35 Acres.T80 and under 85 Acres.
ABCDEFGHIJKLMNOPQRSTUVWXYZA'B'C'Norfolk, six manors139253312179102...212..............................12............23Suffolk, four manors85271810112...113.........21............1........................8Staffordshire, three manors2474231...12...11.................................2...............Lancashire, three manors9...13111..................1..........................................1Northants, four manors116101141395114232......3.................................345Wiltshire, one manor6.........2..................1...1...1.................................1...Leicestershire, one manor111221...11............1.............................................2Total, twenty-two manors390706933482217649473414.........1......14.........479
The apparent immunity of the freeholders in the face of movements which overwhelmed other groups of tenants suggests indeed that economic causes alone, which all classes, whatever the legal nature of their tenure, would have experienced equally, are not sufficient to explain the sufferings of the latter. The situation in our period is not like that which arose in the eighteenth and early nineteenth centuries, when widening markets throw all the advantages of increasing returns on the side of the large wheat farmer, and the yeomanry sell their holdings to try their fortunes in the rapidly growing towns. The struggle is not so much between the large scale and small scale production of corn as between corn growing and grazing. The small corn grower, provided he has security of tenure, can still make a very good living.[78]From the point of view of the economist all the smaller men, whether freeholders, leaseholders, or customary tenants, are in much the same position. The decisive factor, which causes the fortunes of the former class to wax, and those of the two latter to wane, is to be found in the realm not of economics but of law. Leaseholders and many copyholders suffer, because they can be rack-rented and evicted. The freeholders stand firm, because their legal position is unassailable. Here, as so often elsewhere, not only in the investigation of the past but in the analysis of the present, the trail followed by the economist leads across a country whose boundaries and contours and lines of least resistance have been fashioned by the labour of lawyers. It is his wisdom to recognise that economic forces operate in a framework created by legal institutions, that to neglect those institutions in examining the causes of economic development or the distribution of wealth is as though a geographer should discuss the river system of a country without reference to its mountain ranges, and that, if lawyers have wrought in ignorance of economics, he must nevertheless consult their own art in order to unravel the effect of their operations.
From the larger standpoint of social and political organisation the freeholders constituted an element in society the very nature of which we can hardly understand, because our modern life offers no analogy to it. We tend to draw our social lines not between small properties and great, but between those who have property and those who have not,and to think of the men who stand between the very rich and the very poor, the men of whom our ancestors boasted as the “Commons of England,” as men who do not own but are employed by owners. Independence and the virtues which go with independence, energy, a sober, self-respecting forethought, public spirit, are apt to become identified in our minds with the possession of wealth, because so few except the comparatively wealthy have the means of climbing beyond the reach of the stream of impersonal economic pressure which whirls the mass of mankind this way and that with the violence of an irresponsible Titan.
The sixteenth century was poor with a poverty which no industrial community can understand, the poverty of the colonist and the peasant. It lived in terror of floods and bad harvests and disease, of plague, pestilence, and famine. If one may judge by its churchyards, it had an infantile mortality which might make even Lancashire blush under its soot. Yet (and we do not forget the black page of the early Poor Law) it was possible for men who by our standards would be called poor to exercise that control over the conditions of their lives which is of the essence of freedom, and which in most modern communities is too expensive a privilege to be enjoyed by more than comparatively few. Such men were the freeholders. They formed a class which had security and independence without having affluence, which spanned the gulf between the wealthy and the humble with a chain of estates ranging from the few acres of the peasant proprietor to the many manors of the noble, which was not too poor to be below public duties nor too rich to be above them, which could feel that “it is a quietness to a man’s mind to dwell upon his owne and to know his heire certaine.”[79]Look for a moment at the jolly picture drawn by Fuller,[80]who wrote at the very end of the period with which we are dealing:—
“The good yeoman is a gentleman in ore whom the next age may see refined, and is the most capable of genteel impressions when the Prince shall stamp.... France and Italyare like a die which has no points between cinque and ace, nobility and peasantry.... Indeed, Germany hath her boors like our yeomen; but by a tyrannical appropriation of nobility to some few ancient families their yeomen are excluded from ever rising higher to clarify their blood. In England the temple of honour is closed to none who have passed through the temple of virtue.
“He wears russet clothes, but makes golden payment, having tin in his buttons and silver in his pocket. He is the surest landmark whence foreigners may take aim of the ancient English customs, the gentry more floating after foreign fashions.
“In his house he is bountiful both to strangers and poor people. Some hold, when hospitality died, she gave her last groan among the yeomen of Kent. And still at our yeoman’s table you shall have as many joints as dishes; no meat disguised with strange sauce; no straggling joint of a sheep in the midst of a pasture of grass, but solid, substantial food.
“He hath a great stroke in the making of a knight of the Shire. Good reason, for he makes a whole line in the subsidy book, where, whatsoever he is rated, he payeth without regret, not caring how much his purse be let blood, so it be done by the advice of the physicians of the state.
“In his own country he is a main man on juries; where, if the Judge open his eyes on a matter of law, he needs not to be led by the nose in matters of fact.... Otherwise (though not mutinous in a jury) he cares not whom he displeaseth, so he pleaseth his own conscience.
“In a time of famine he is the Joseph of the country and keeps the poor from starving ... and to his poor neighbour abateth somewhat of the high price of the market. The neighbour gentry court him for his acquaintance, which either he modestly waveth, or thankfully accepteth, but in no way greedily desireth.
“In war, though he serveth on foot, he is ever mounted on a high spirit, as being a slave to none, and subject only to his own Prince. Innocence and independence make a brave spirit, whereas otherwise one must ask his leave to be valiant on whom one depends. Therefore if a state run up all to noblemen and gentlemen, so that the husbandmenbe only mere labourers or cottagers (which one calls but 'housed beggars'), it may have good cavalry, but never good bands of foot.... Wherefore to make good infantry it requireth men bred not in a servile or indigent fashion, but in some free and plentiful manner.”
The ancestors of the yeomanry had suffered much in the anarchy of the fifteenth century, when the violent ejection of freeholders seems to have become almost as common[81]as it had been in the evil days before the reforms of Henry II. But the Tudor monarchy had put an end to that nightmare of lawlessness, and in any society governed by law this body of small property-owners was bound to be a powerful element, even though they had no occasion for making any concerted use of their power, as during the greater part of our period they had not. One must not, of course, exaggerate their importance, or forget that, though a special dignity was attached by opinion to all freeholders, they included in reality men of various economic positions. Many of them must have been quite poor. In the eastern counties, where they are most numerous, they frequently own not more than three or four acres apiece, and can hardly, one would suppose, have supported themselves without working for wages in addition to tilling their holdings. Nevertheless the part which they played in the routine of rural life was an indispensable one, and the very diversity of the elements which they included made them a link between different ends of the social scale. It was from the more substantial among them that the government was most anxious to recruit the military forces. The obligation of serving the State as voters and upon juries fell upon the 40s. freeholders. The security of their tenure caused them to be the natural leaders of the peasantry in resisting pressure from above. No efforts of Elizabeth’s Government could induce the yeomanry of the North[82]Riding to abandon the old religion; and when tenants and lords fall out over common rights and enclosures, it is often the freeholders—though on occasion they enclose themselves—who speak[83]for the less independent classes and take the initiative in instituting legal proceedings. The upward movement which went on among this class in many parts of England meant a change in the distribution of material wealth which necessarily involved a corresponding change in the balance of social forces and in the control of political power. To Harrington,[84]who sought in the seventeenth century to find in economic causes an explanation of the revolution through which the country had passed, it seemed that the seeds of the civil war had been sown by the Tudor kings themselves in the care which they showed for the small proprietor. In destroying feudalism to establish the monarchy, they had raised a power which was more dangerous to the monarchy than feudalism itself. They had snapped the bond between landlord and tenant by the Statute of Retainers. They had given the tenant security by forbidding depopulation. Most important of all, by encouraging alienation they had caused an enormous transference of property from the upper to the middle and lower middle classes. “The lands in possession of the Nobility and Clergy of England till Henry VII. cannot be estimated to have over-balanced those held by the People less than four to one. Whereas, in our days, the Clergy being destroyed, the Lands in possession of the People over-balance those held by the Nobility at least nine in ten.” But property is political power individualised and made visible. The destruction of the monarchy was only the political expression of an economic change which had begun in the reign of Henry VII. “He suffered the balance to fall into the power of the people.... But the balance being in the People, the Commonwealth (though they do not see it) is already in the nature of them.” We need not accept Harrington’s view in its entirety in order to appreciate the significance of the change which he describes. Certainly the yeomanry were growing in political power, and were strong in that spirit of self-respect and pride in their order, which,when, as too often, it is confined to a single class, means social oppression, but which, when widely diffused throughout society, is the mother of public spirit and political virtue. The long discipline of tiresome public duties which they had borne throughout the Middle Ages had formed them into a body which was alive to political issues and conscious of political influence, and which, when participation in public affairs became not only a duty but a right, would use their power to press urgent petitions from one county after another upon the King and upon the Parliament, or by riding up from Buckinghamshire to protect Hampden at Westminster in 1642, or by fighting behind Cromwell in Cambridgeshire, or by fighting for the King in the West. Compared with the bulk of the population, they were a privileged class and stood by their own; it was they who restored the franchise to the 40s. freeholders in 1654 and refused to extend it to the copyholders. But the tenure of much of the land of England by men with whom, however poor, no landlord or employer could interfere, set a limit to the power of wealth, and made rural society at once more alert and more stubborn, a field where great ideas could grow and great causes find adherents. Political and religious idealism flourish bravely in a stony soil. What makes them droop is not poverty, but the withering shadow cast by complete economic dependence.
From such degrading subservience the freeholders, “slaves to none,” were secure. As it was, they often left substantial fortunes to their children, and by the middle of the sixteenth century were already following the examples of their social superiors in entailing[85]their lands. One can quite understand therefore that there is nothing inconsistent between the glowing accounts of their prosperity at the end of the centurygiven by Harrison and his lamentation over the decline of the rural population, or between the well-attested sufferings of the small cultivator in the sixteenth century and his equally well-attested importance in the seventeenth and early eighteenth. The explanation is that the freeholders, though most important politically, did not form the larger proportion of those substantial yeomen whose decay was lamented. The day of their ruin was to come. But for the next two centuries they were safe enough, and, if anything, gained on the class immediately above them, whose lands they bought or leased, into whose families they married, and with whose children their own competed in the learned professions, laying, as the historian of Suffolk[86]said, “such strong, sure and deep foundations that from thence in time are derived many noble and worthy families.” Nothing in the life of the period caused more pride than the prosperity of this solid body of small property-owners, and the contrast which it offered to the downtrodden peasantry of the Continent. No loss has been sustained by the modern world greater than their disappearance.
Important, however, as the freeholders were from a social and political standpoint, they were in most parts of England far inferior in point of numbers to those described as “customary tenants.” It is with the latter class that we are mainly concerned, and leaving the leaseholders on one side for examination later,[87]we may summarise shortly certain features in their position. The number of customary tenants varied from one manor to another, according to the extent to which in different districts farmers holding by lease had been substituted for them, and on some by the middle of the sixteenth century there were none at all. But there are many indications that, down to the end of that century at any rate, and probably much longer, they formed over the great part of England the bulk of the landholding population. Of the revenues of 74 manors held by monastic[88]houses in 1535, £116 came from free, and £1310 from customary, tenants. On 81 of the 118 manors analysed above they are the most numerous class. When all the different districts are grouped together, they amount to about 61 per cent. of all landholders, and even this figure does not give an adequate idea of their numerical importance. As we have seen, Norfolk and Suffolk are quite peculiar in the multitude of freeholders they embrace, while the large number of leaseholders on one extensive Lancashire manor unduly weights the figures for that county. On the Midland manors 62 per cent., in Wiltshire, Devonshire, and Somerset 77 per cent., in Northumberland 91 per cent. of all those holding land are customary tenants. No doubt the area of land held under lease was growing in the course of the sixteenth, and still more in the course of the seventeenth, century, and its growth is an extremely important movement, of which something will be said later. But it seems true to say that, down to the end of the sixteenth century, both in numbers and payments, though not in prestige and influence, the customary tenants, as distinct from the freeholders and leaseholders, were by far the most important class in the agricultural life of the country.
Among the customary tenants, however, there are certain important subdivisions. There are in the first place, differences of legal status. Though villeinage by blood had been disappearing rapidly for several generations, partly through manumission on payment of a fine to the lord, partly through the absorption of migrating villeins into the growing industries of the towns, a certain number of villeins by blood lingered on into the sixteenth century. Dr. Savine[89]has estimated that there were at least as many as 500 villein families in 1485, and as many as 250 in the reign of Elizabeth; and the fact that they occur occasionally on our Norfolk[90]manors, and rather more often on those inWiltshire[91]and Somersetshire, suggests that his list could be considerably extended on further investigation. Even in 1561 a borough surrenders an apprentice on the ground that he is a runaway villein.[92]Even in 1568 it is worth while in leasing[93]a manor to a farmer for the lord to reserve to himself the villeins upon it, together with other forms of property like quarries and advowsons.
One cannot, therefore, take the almost sanctimonious abhorrence of bondage expressed by the writers of the period quite at its face value. On the other hand, though villeinage by blood was still worth recording, since it offered an impecunious lord an opportunity for arbitrary taxation, and still sufficiently irksome for the rebels under Ket[94](influenced perhaps by some dim memory of the German peasants' programme) to set its abolition among their demands, its practical importance was slight, and it was quite compatible with a good deal of prosperity on the part of those who were legally bondmen. How completely out of date it was by the middle of the sixteenth century is best shown by some of the cases in which attempts were made to enforce it. When the Earl of Bath[95]seizes £400 from a family on the ground that the members are his villeins, and is pursued bythem for nine years from one court to another, or when a lord[96]of a manor is compelled by a royal commission appointed for the purpose of investigating the matter, to repay the value of the beast taken from a man who is proved by the court rolls to be his villein, and the latter, having received it back, declines to stop proceedings unless he be paid heavy compensation in addition, one must see rather a proof of the practical disappearance of villeinage than of its survival. Its occasional enforcement is clearly regarded as something outrageous; it is a freak of arbitrary despotism, which has hardly more historical significance than the seizure of the Derby winner as a copyhold heriot would have at the present day. Public opinion, even the opinion of those engaged in estate management, condemns such attempts unreservedly, and when they come to the ears of the authorities they strain the law on the side of the bondmen.
This change from servile to free labour, begun some two centuries before, and virtually completed in the reign of Elizabeth, is a high landmark in the development both of economic and political society. It is a long step towards modern industrialism on the one hand and the modern all-inclusive state on the other. By sapping the organisation of society on the basis of tenure, and thus making room for the more elastic relationships of the wage-contract, it prepared the way for new methods of production and for the growth of new centres of economic power. The refusal of the courts to allow that the lord of a manor had,qualord, a theoretical right to dispose of the persons and chattels of his unfree tenants, meant the final triumph of the common law in regions with which for four centuries after the Norman Conquest it had not dared to interfere. Henceforward, while the German peasant is driven afield to gather snails and wild strawberries for his lord, is plundered and harried andtortured without hope of redress, his English brother is a member of a society in which there is, nominally at least, one law for all men. His liberty may be more in shadow than in substance, yet the shadow is itself an earnest of greater things. To us who know the misery of many of the poorer classes in the sixteenth century the boast that “if any slaves or bondmen come here from other realms, so soon as they set foot on land they became so free of condition as their masters,” may read like a bitter mockery. But it is something that the boast should be made, and when England is confronted with the greatest moral issue of the modern world, that boast will stand her in good stead.[97]She owes some acknowledgment to the nameless serfs who fled from farm and homestead, till villeinage, in spite of the law, bled gradually to death.
Having said so much we must hasten to guard ourselves, by adding that the final disappearance of serfdom in this country neither involved any radical conversion of opinion, nor prevented the classes who depended solely on their labour from being, on occasion, cruelly oppressed. It would be a mistake to see in the attitude of the governing classes towards villeinage a symptom of humanitarian feeling for the rights of a helpless class, such as prompted the emancipation movement of the last century. How little humanitarianism influenced economic policy in relation to those who were too powerless to be dangerous, is shown by the sanguinary statutes relating to the destitute, and in particular by the extraordinary legalisation of slavery in the Act[98]of 1547, by which a confirmed vagrant might, when captured, be made a bondman for life. Nor must we think of thedisappearance of legalised serfdom as effecting a great improvement in the lot of the ordinary wage-worker. Those who benefited by it were not so much the workers for wages, as the landholding peasants. The wage-labourer, who was tied to his parish by the Statute of Artificers almost as completely as the serf had been by the custom of the manor, can hardly have seen much difference between the restrictions on his movement imposed by the Justices of the Peace and those laid on him by the manorial authorities, except indeed that the latter, being limited to the area of a single village, had been more easy to evade.
Even if we confine our attention to the landholding peasants, to whom the advantage (for they were quick to seize it) was certainly real enough, we may doubt whether they did not lose almost as much by the intrusion into agriculture of competitive commercial forces as they gained by the final disappearance of a claim which had always been held in check by the custom of the manor, and which, since the ravages of the Great Plague, had been steadily circumscribed by commutation. The truth is that the sharp antithesis drawn by modern commercial societies between serfs and the free labourers on whose slowly straightening backs our civilisation is uneasily poised, and emphasised as though it marked a line between hopeless oppression and unqualified liberty, requires to be supplemented by categories derived from a wider and more tragic range of experience than was open to our forefathers. There are more ways of living “at the will of a lord" than were known to Glanvill and Bracton, and the utility of the contrast in the sphere of legal analysis does not save it from being but a thin abstraction of the countless forms of tyranny which spring from the world-old power of one human being to use another as his tool. That dependence on the uncontrolled caprice of a master whom one hates to obey and dare not abandon, which, by whatever draperies it may be veiled, is still the bitter core of serfdom,[99]is compatible with the most diverse legal arrangements; with wage labour as with forced services, with tenure by a competitive money rent as well as with tenure by personal obligations, with freedom of contract as well as with inherited status, with protection by the national courts as well as with its absence.
When we turn over the pages in which the writers of the sixteenth century declare that bondage is contrary to “the Christian religion which maketh us all in Christ breathren, and in respect of God and Christconservos,”[100]and congratulate themselves on its disappearance, we must not doubt their sincerity, but we may envy their inexperience. We must remember that a condemnation of villeinage was quite compatible with a policy of great severity towards the wage-labourer, and was in fact not unconnected with it, since the latter had almost everywhere stepped into places and functions formally held by the bondman. Villeinage disappeared in England earlier than on the continent of Europe, not for the ethical reasons given by Fitzherbert and Smith and Norden, but because the growth of a commercial organisation of agriculture had made its maintenance both useless and impossible. The intellectual conversion did little more than follow on the economic change to make a virtue of necessity. The personal rightlessness of the villein and the hateful incidents of villeinage, such as chevage, merchet, and leyrwite, had had their utility in the fact that they kept him at the disposal of the manorial authorities as an instrument of agriculture. With the substitution of hired labour for the cultivation of the demesne by the services of bond tenants, their maintenance lost its attractiveness. No employer wants to retain a permanent staff, if there are “hands” whom he can take on and put off at pleasure. Villeinage ceases but the Poor Laws begin.
Much more important than this difference of legal statusare differences in the tenure by which customary tenants hold their lands. Under the name of customary tenants are grouped together all holders of lands which pass by surrender and admission in the court of the manor, and which are subject to the custom of the manor as evidenced by the records of the court. But not all these lands are held by exactly the same title. Some are held by copy of court roll according to the custom of the manor, on the terms set out on a copy of the entry of admission. Others are held without a documentary title, and are often said to be occupied at the will of the lord, or at the pleasure of the lord, or by grant or permission of the lord or of the court, their essential feature being that the tenant does not possess any instrument recording the transaction, but has, if necessary, to appeal to the records of the court or even to its mere memory.
One must hasten to add, however, that these classes are not mutually exclusive. A copyholder is a tenant at will, though qualified by the addition of the words “by copy of court roll according to the custom of the manor.” It not seldom happens that in rentals and surveys he is simply described as a tenant at will, and that the fact that he has a copy is not recorded. A tenant at will is usually (though not always) a customary tenant, and, when he is, he can appeal to the custom with as good a right as a copyholder, though of course the fact that his title is not in his own keeping may prejudice him if the manorial authorities want to get rid of him. “All[101]copyhold land,” it was said, “is commonly customary, but all customary land is not copyhold,” and one may accept the statement with the reservation that “commonly” must not be taken to mean “always,” for it is quite usual in parts of England for land which by no stretch of imagination can be called customary land, for example, part of the lord’s demesne, to be let by copy of court roll. The fact that “tenant at will” was sometimes used as a compendious phrase for “copyholder,” and that both are sometimes described simply as “customary tenants” without further definitions, makes it impossible to offer anyaccurate estimate of the relative number of those holding by copy and those holding at will. It may, however, be of interest to give an analysis of the entries as they appear in a group of manorial documents. It is as follows[102]:—
Total“Copyholders”“Customary“TenantsTenants”at Will”Northumberland4363624529Lancashire451295156...Staffordshire272170...102Leicestershire311157...154Northamptonshire355253939Norfolk5965364515Suffolk146538211Wilts and Somerset817786...31Hampshire251251......Ten other manors in the south of England158874526Total37932950466377
These figures, one must repeat, are merely a summary of the entries in surveys and rentals. Probably they underestimate the number of copyholders, as we know that copyholders were sometimes entered as tenants at will or as customary tenants for the sake of brevity, while it is not probable that tenants at will who had not got copies were often written down as copyholders. One may suspect that this, rather than any difference of custom, is the explanation of the relatively small number of those who are returned as copyholders in Lancashire, Staffordshire, Leicestershire, and Suffolk. Still, these figures do show the enormous preponderance of copyholders among the customary tenants, and show it all the more certainly if the number of copyholders is to be taken, as is probable, as the minimum. And this agrees with what we know from the incidental references of the writers of the time. Of 1000 tenants on the great ecclesiastical manor of Scrooby in Nottinghamshire “the most part” were said by Archbishop[103]Sandys in 1582 tobe copyholders. Harrison[104]in 1587 spoke of copyholders as those “by whom the greatest part of the realm doth stand and is maintained.” At the beginning of the seventeenth century Coke[105]could say that the third part of England consisted of copyhold. Copyholders, it is true, are far from being all of one type; for the essence of their tenure is that it depends on the custom of the manor which varies from place to place, and when we come to consider how far they have security against eviction these differences are of crucial importance. Still, in spite of the varieties of copyhold tenure, it is useful to know that to the bulk of the population in the sixteenth century landholding meant holding by copy of court roll according to the custom of the manor. No account of the agrarian changes can stand for a moment which does not give full weight to the fact that, in most parts of England, the copyholders greatly outnumber all other classes of tenants.
The numerical predominance of the customary tenants and among those of the copyholders, together with the disastrous effects upon them which are ascribed by most of our authorities to the agrarian changes of the sixteenth century, makes a somewhat detailed examination of their position essential. In particular it is important to try to bridge the gap between the agricultural system of the sixteenth and that of the thirteenth and fourteenth centuries, out of which it emerged, and of which it continued to bear unmistakable traces. The problem is really a twofold one, partly legal and partly economic. First, what was the legal nature of copyhold tenure, and how did it arise out of mediæval villeinage? Secondly, there is the question, which for us is more important, of the type of agriculture which prevailed among the mass of the people. The economist wants to know whether the customary tenants were large cultivators or small, whether they included considerable capitalists and mere cottagers or whether their holdings were of a fairly uniform pattern, whether they farmed mainly for subsistence or for the market, whetherthey lived entirely by tillage or were pasture farmers as well, whether they were tied down by custom or showed any signs of being influenced by the agricultural innovations of our period.
Of these two questions the first has been investigated much more thoroughly than the second. We shall return to it later in considering how far the copyholder had security of tenure, and enjoyed legal protection against the lord who wished to evict him. But we may say at once that we accept in substance the argument of those who hold that most copyholders are the descendants of villeins holding villein land, that copyhold tenure is, in fact, villein tenure to which the courts from the end of the fourteenth century have gradually extended their protection, and that the puzzling differences between the position of one group of copyholders and another are due to differences in manorial custom which were followed and upheld by the courts. This not only is the traditional view, in the sense of being that which is implied in the insistence of contemporaries that copyhold originated in base tenure, and that copyholders were tenants “whom the favourable hand of time hath much enfranchised,”[106]but also seems to be that which best fits the situation of the copyholder as we find it in the sixteenth century.
This line of development is suggested, though it is not proved, by the mere preponderance of copyholders. In looking for the antecedents of so numerous and widely spread a class we can only find them in the tenure of the mass of the people in the thirteenth and fourteenth centuries, that is in villein tenure. Further, we do not find in villein tenure any such fundamental distinction between customary tenure which was protected and base tenure which was not, as has been sometimes postulated as an explanation of the qualified legal security possessed by copyholders 200 years later. On the contrary, the tenure of the villeins is marked by the same variety of customary conditions as appears in that of the copyholders, with the difference that, when once copyhold has taken root, these customs are enforced by the courts. The same conclusion is borne out by the survival of ancient formulæ among the terms by which theconditions of the copyholders are recorded in the surveys. It is quite common for copyholders in the sixteenth century to be described as occupying “bond”[107]or “native” land; sometimes one finds a whole list of them set down under the rubric “holding[108]native lands by copy of court roll.” The last thing, of course, which occurred to the writer of these entries was any legal theory as to the origin of copyhold tenure. All he was concerned to do was to describe the holdings in the way which was most precise and left least room for possible disputes. Clearly, he must have had it in his mind that lands which in his day were let by copy of court roll were lands which were known generally in the village as bond lands, and which in earlier documents were described as being occupied in villeinage.
One may approach the question in another way, by looking at the circumstances of those exceptional manors on which the tenants at will are more numerous than the copyholders, and which are instructive just because they represent a variation from the general type. A case in point is the Manor of Knyghton in Wiltshire. On the majority of the manors held in that county by the Earl of Pembroke the copyholders are far the most numerous class, and on some they are the only class, among the customary tenants. At Knyghton,[109]however, there are no copyholders; all the customary tenants hold at the will of the lord, and when one examines the position and methods of agriculture more closely, one finds that they display several signs of being in other respects more antiquated and conservative than is the case in other parts of the same country; for example, all the holdings are either virgates of twenty-four acres or some fraction and multiple of a virgate, which is not at all common on other Wiltshire manors, and implies an unusual approximation to the conditions of the peasantry two centuries before. Is it unreasonable to conclude that this is a case of arrested development, and that Knyghton is a manor on which the tenants at will have never turned into copyholders, because for one reason or another it has lain outside the main stream of agricultural development?
The connection with copyhold tenure of some of the characteristic obligations and disabilities of villeinage points in the same direction. In spite of the general commutation of services into money payments, which Mr. Page’s statistics show to have taken place before the middle of the fifteenth century, one still finds the attenuated records of labour rents surviving for many generations after the direct management of the demesne by manorial officials has been abandoned, and passing with the rest of the farm equipment to the farmer who takes it on lease. In Norfolk and Suffolk they seem indeed to have disappeared almost altogether, which is what one would expect in view of the fact that those counties were the Lancashire and West Riding of the period, and no doubt, even when labour services were still exacted, the farmer relied mainly upon hired labour. But it would be a mistake to regard the tenants' works as everywhere so trifling as to be of no economic importance. Often, it is true, they are inconsiderable. At South Newton,[110]for example, though the uncertainty which had been one of the marks of villeinage still survived among the copyholders in the shape of the duty of “gift carriage,” the transport of such timber as was wanted to the lord’s house at Wilton, the purely agricultural services were unimportant, and the tenants of every yardland had only to mow the farmer’s meadow and to carry his hay. At Cuxham,[111]in Oxfordshire, on the other hand, the authorities were still getting twenty-eight boonworks in autumn from the copyholders at the end of the fifteenth century. On a Northumbrian[112]manorbelonging to Tynemouth Priory down to the dissolution of the monasteries “every tenant did lead to the castle in the prior’s time one load of hay, mow three several dayworks of hay, rake one daywork and sheare three severall dayworks in the corn in harvest every year.” At Washerne,[113]in Wiltshire, the copyhold tenants' labours were in 1568 still quite an important affair: each holder of one virgate of twenty acres “shall plough three half acres for the lord’s winter seed and shall harrow them, and also the aforesaid tenants shall wash and shear the lord’s sheep ... and further each of them shall mow one acre of meadow ... and gather hay thence and prepare it.... Each of the said tenants shall reap one acre of wheat and he must bind the crop and carry it. Also each of them shall reap one acre of barley.” On a Lancashire[114]manor in 1628 every plough hand is obliged to do two days' work in the year with a team on the demesne, and two days with a labourer. Such elaborate obligations as appears at Washerne are, it is true, the exception. But they show that in the middle of the sixteenth century there were still backwaters where the remnants of agricultural services were a not inconsiderable burden; and if their comparative lightness marks the progress from villeinage to a wage system, their survival as clearly shows that villeinage was the pit from which copyhold tenure was digged.
More striking still, perhaps, is the persistence of disabilities of another kind. The old marks of personal bondage, chevage, merchet, leyrwite, liability to tallage, and the rest have almost disappeared. But traces of them are still found clinging to the copyhold tenants. Copyholders pay a fixed sum to be free of tallages.[115]They pay salt silver instead of the salt with which they had once been obliged to toil to the lord’s manor-house; they are forced to act as the lord’s reeve, and collect his rents, heriots, and strays. In one curious instance one finds something very like atallage[116]being taken at the beginning of the seventeenth century, though of course that is not what it is called. The tenants are simply collected and told that they must help the lord to pay for an estate which he has bought, by giving him three years' rent apiece, that, if they do, no more gifts will be demanded during his lifetime, and that, if they do not, he will refuse to renew holdings as they fall in. Even merchet, the most hateful of all the incidents of villeinage, is something more than a mere memory. As late as 1620 the tenants of Holt[117]in Denbighshire thought it worth while to point out to the crown surveyor that “they are freed from payment of any sum of money upon the marriage of their daughters,” and even in 1654 Leyrwite and childwite were still being paid by the heiresses of copyhold tenants on some of the Warwickshire[118]manors.
It will not, therefore, be surprising to find that the humble origin of copyhold tenure has left marks upon it in other ways as well, and, in particular, that though the copyholder is not without legal protection when the lord tries to get rid of him, that protection is often of a somewhat shadowy and ineffective kind. His title is a customary one, and mighty as custom still is, it has for centuries been growing gradually weaker. Its weakening is at once an advantage and a disadvantage to the peasantry. It relieves them of odious obligations and leaves them greater room to push their fortunes. It lowers a protecting barrier and exposes them to the dissolving forces of competition.[Next Chapter]