第154章

There can be no doubt that the discretion of the lord was often stretched in exceptional cases, that relations based on moral sense and a true comprehension of interests often suffered from violence and encroachment. But as a general rule, and with unimportant exceptions, the feudal system is quite as much characterised by the collegiate organisation of its parts as by their monarchical exterior. The manorial courts were really meetings of the village community under the presidency of the lord or of his steward.

It is well known that later law recognises three kinds of seignorial courts: the Leet, the Court Baron, and the Customary Court. The first has to keep the peace of the King, the others are concerned with purely manorial affairs. The Leet appears in possession of a police and criminal jurisdiction in so far as that has not been appropriated by the King's own tribunals-its parallel being the sheriff's tourn in the hundred. The Court Baron is a court of free tenants entrusted with some of the conveyancing and the petty litigation between them, and also with the exercise of minor franchises. The Customary Court has in its charge the unfree population of the manor. In keeping with this division the Court Baron consists according to later theory of a body of free suitors which is merely placed under the presidency of the steward, while in the Customary Court the steward is the true and only judge, and the copyholders, customary tenants or villains, around him are merely called up as presenters.

The masterly investigations of Mr Maitland, from which any review of the subject must start, have shown conclusively, that this latter doctrine, as embodied in Coke, for instance, draws distinctions and establishes definitions which were unknown to earlier practice. The Leet became a separate institution early enough, although its name is restricted to one province --Norfolk -- even at the time of the Hundred Rolls.(20*) The foundation of the court was laid by the frank-pledge system and the necessity of keeping it in working order. We find the Leet Court sometimes under the names 'Curia Visus franci plegii,' or 'Visus de borchtruning',(21*) and it appears then as a more solemn form of the general meeting. It is held usually twice a year to register all the male population from twelve years upwards, to present those who have not joined the tithings, and sometimes to elect the heads or representatives of these divisions -- the 'Capitales plegii,'(22*) Sometimes the tithing coincides with the township, is formed on a territorial basis, as it were, so that we may find a village called a tithing.(23*)This leads to the inference, that the grouping into tens was but an approximate one, and this view is further supported by the fact that we hear of bodies of twelve along with those of ten.(24*)As to attending the meeting, a general rule was enforced to that effect, that the peasantry must attend in person and not by reason of their tenure.(25*) But as it was out of the question to drive all the men of a district to the manorial centres on such days, exceptions of different kinds are frequent.(26*) Besides the women and children, the personal attendants of the lord get exempted, and also shepherds, ploughboys. and men engaged in driving waggons laden with corn. Servants and aliens were considered as under the pledge of the person with whom they were staying.

The aim of its whole arrangement was to ensure the maintenance of peace, and therefore everybody was bound on entering the tithing to swear, not only that he would keep the peace, but that he would conceal nothing which might concern the peace.(27*) It is natural that such a meeting as that held for the view of frank-pledge should begin to assume police duties and a certain criminal jurisdiction. Mr Maitland has shown how, by its intimate connexion with the sheriff's tourn, the institution of frank-pledge was made to serve the purpose of communal accusation in the time of Henry II. The Assize of Clarendon (1166) gave the impulse in regard to the Sheriff's Court, and private lords followed speedily on the same line, although they could not copy the pattern in all its details, and the system of double presentment described by Britton and Fleta proved too cumbersome for their small courts with only a few freeholders on them. In any case the jurisdiction of the Court Leet is practically formed in the twelfth century, and the Quo Warranto inquiries of the thirteenth only bring out its distinctions more clearly.(28*)The questions as to the opposition between Court Baron and Customary Court are more intricate and more important. Mr Maitland has collected a good deal of evidence to prove that the division did not exist originally, and that we have before us in the thirteenth century only one strictly manorial court, the 'halimotum.' I may say, that I came to the same conclusion myself in the Russian edition of the present work quite independently of his argument. Indeed a somewhat intimate acquaintance with the early Court Rolls must necessarily lead to this doctrine. If some distinctions are made, they touch upon a difference between ordinary meetings and those which were held under exceptional circumstances and attended by a greater number of Suitors than usual. The expression 'libera curia' which meets us sometimes in the documents is an exact parallel with that of 'free gallows,'