第156章

Ploughmen who have performed their ploughing on the lord's land badly, villains who have fled from the fee and live on strange soil, a man who has not fulfilled some injunction of the lord, a woman who has picked a lock appended to the door of her cottage by a manorial bailiff, an inveterate adulterer who loses the lord's chattels by being fined in the ecclesiastical courts --all these delinquents of very different kinds are presented to be punished, and get amerced or put into the stocks, according to the nature of their offences. It ought to be noticed that an action committed against the interests of the lord is not punished by any one-sided act of his will, or by the command of his steward, but treated as a matter of legal presentment. The negligent ploughman is not taken to task directly by the bailiff or any other overseer, but is presented as an offender by his fellow-peasants, and according to strict legal formality. On the other hand, the entries are worded in such a way that the part played by the court is quite clear only as to the presenting of misdeeds, while the amercement or punishment is decreed in some manner which is not specified exactly. We read, for instance, in a roll of the Abbey of Bec how 'the court has presented that Simon Combe has set up a fence on the lord's land. Therefore let it be abated.... The court presented that the following had encroached on the lord's land, to wit, William Cobbler, Maud Robins, widow (fined 12d.), John Shepherd (fined 12s.)...

Therefore they are in mercy.'(45*) Who has ordered the fence to be thrown down, and who has imposed the fines on the delinquents?

The most natural inference seems to be that the penal ties were imposed by the lord or the presiding officer who represented him in the court. But it is by no means impossible that the court itself had to decide on the penalty or the amount of the amercement after first making the presentment as to the fact. Its action would merely divide itself into two independent decisions.

Such a procedure would be a necessity in the case of a free tenant who could not be fined at will; and there is nothing to show that it was entirely different in regard to the servile tenantry. When the lord interferes at pleasure this is noted as an exceptional feature.(46*) It is quite possible, again, that the amercement was imposed on the advice or by a decision of certain suitors singled out from the rest as persons of special credit, as in a case from the same manorial rolls of Bec.(47*) It is hardly necessary to draw very precise conclusions, as the functions of the suitors do not appear to have been sharply defined. But for this very reason it would be wrong to speak of the one-sided right of the lord or of his representative to impose the penalty.

The characteristic mixture of different elements which we notice in the criminal jurisdiction of the manorial court may be seen also if we examine its civil jurisdiction. We find the halimot treating in its humble region all the questions of law which may be debated in the courts of common law. Seisin, inheritance, dower, leases, and the like are discussed, and the pleading, though subject to the custom of the manor, takes very much the shape of the contentions before the royal judges. Now this civil litigation is interesting from two points of view: it involves statements of law and decisions as to the relative value of claims. In both respects the parties have to refer to the body of the court, to its assessors or suitors. The influence of the 'country' on the judgment goes further here than in the Common Law Courts, because there is no independent common law to go by, and the custom of the manor has generally to be made out by the manorial tenants themselves. And so a party 'puts himself on his country', not only in order to decide some issue of fact, but also in regard to points of customary law. Inquisitions are made and juries formed quite as much to establish the jurisprudence of the court as to decide who has the better claim under the said jurisprudence. Theoretically it is the full court which is appealed to, but in ordinary cases the decision rests with a jury of twelve, or even of six. The authority of such a verdict goes back however to the supposed juridical sense or juridical knowledge of the court as a body. Now it cannot be contested that such an organisation of justice places all the weight of the decision with the body of the suitors as assessors. The presiding officer and the lord whom he represents have not much to do in the course of the deliberation. If we may take up the comparison which Mr Maitland has drawn with German procedure,(48*) we shall say that the 'Urtheilfinder' have all the best of it in the trial as against the 'Richter.' This 'Richter' is seemingly left with the duties of a chairman, and the formal right to draw up and pronounce a decision which is materially dependent on the ruling of the court. But a special reserve of equity is left with the lord, and in consequence of its operation we find some decisions and sentences altered, or their execution postponed.(49*) I have to endorse one more point of Mr Maitland's exposition, namely, his view of the presentment system as of a gradual modification of the original standing of the manorial suitors as true assessors of the court. Through the influence of the procedure of royal courts, on the one hand, of the stringent classifications of the tenantry in regard to status on the other, the presenters were gradually debased, and legal learning came to maintain that the only judge of a customary court was its steward. But a presentment of the kind described in the manorial rolls vouches for a very independent position of the suitors, and indeed for their prevalent authority in the constitution of the tribunal.