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ENGLISH LOCAL GOVEKNMENT
FROM
THE REVOLUTION
TO
THE MUNICIPAL CORPORATIONS ACT
ENGLISH LOCAL GOVERN- MENT FROM THE REVOLU- TION TO THE MUNICIPAL CORPORATIONS ACT: THE MANOR AND THE BOROUGH. BY SIDNEY AND BEATRICE WEBB. PART ONE.
LONGMANS, GREEN AND CO., 39 PATERNOSTER ROW, LONDON, NEW YORK, CALCUTTA AND BOMBAY. 1908.
P3
CONTENTS
BOOK III
THE MANOK AND THE BOEOUGH Introduction, ........
PAUE
3
PART I
CHAPTER I The Lord's Court ......
(a) The Lawyer's view of the Lord's Court
(5) The Court Baron
(c) The Court Leet
9 11 13 21
CHAPTER n
The Court in Ruins
(rt) The Hierarchy of Courts (6) The Court of the Hundred (c) The Court of the Manor (L) The Bamburgh Courts
31 32 50 64 89
ENGLISH LOCAL GOVERNMENT
PAGE
(il) The Court Leet of the Savoy ... 96
(iiL) The C!odrt Leet and Court Baron of Man- chester. ....... 99
(d) The Prevalence and Decay ok the Lord's Court 114
CHAPTER m Thb Manorial Borough
(rt) The Village Meeting
(6) The Chartered Township
(c) The Lordless Court
{S) The Lord's Borough
(e) The Enfranchised Manorial Borough
{J) Manor and Gild ....
(jf) Arrested Development and Decay .
127 128 134 148 160 178 186 200
CHAPTER IV The City and Borough of Westminster (a) Burleigh's Constitution . (6) Municipal Atrophy .
212 213 223
CHAPTER V The Boroughs of Wales . . . . (a) Incipient Autonomy . . . . (6) The Welsh Manorial Borough (c) The Welsh Municipal Corporation
232 235 241 254
CONTENTS
CHAPTER VI
r PAGE
The Municipal Corporation 261.
(a) The Instrument of Incorporation .... 267
(6) Corporate Jurisdictions . . . . .275
(c) Corporate Obligations . . . . . .285
(rf) The Area of the Corporation . . . 288
(e) The Membership op the Corporation . . . 292
(/) The Servants of the Corporation . . . 302
ig) The Chief Officers of the Corporation . . 306
Qi) The Head of the Corporation .... 309
(t) The Bailiffs 318
(j) The High Steward and the Recorder . . .321
Qi) The Chamberlain and the Town Clerk . . 324
{t) The County Officers of the Municipal Corporation 328
(w) The Mayor's Brethren and the Mayor's Counsellors 333
(w) The Courts op the Corporation .... 337
(o) Courts op Civil Jurisdiction 339
(p) The Court Leet 344
(g) The Borough Court of Quarter Sessions . . 349
(r) Courts of Specialised Jurisdiction .... 368
(.<?) The Administrative Courts of the Municipal
Corporation 360
(<) The Municipal Constitutions op 1689 . . . 367
viii ENGLISH LOCAL GOVERNMENT
CHAPTER VII
PAOK
Municipal Disintegration 384
(a) The Rise of the Corporate Magistracy . . 384
(6) The Decline op the Common Council . . 390
(c) The Establishment op New Statutory Authorities 394
(d) The Passing op the Freemen 396
(«■) The Mingling op Decay and Growth . . . 402
BOOK III
THE MANOE AND THE BOROUGH
INTRODUCTION.
CHAPTER I.— THE LORD'S COURT.
II.— THE COURT IN RUINS. III.— THE MANORIAL BOROUGH. IV.— THE CITY AND BOROUGH OF WESTMINSTER. v.— THE BOROUGHS OP WALES. VI.— THE MUNICIPAL CORPORATION. VIL— MUNICIPAL DISINTEGRATION. VIII.— ADMINISTRATION BY CLOSE CORPORATIONS. IX.— ADMINISTRATION BY MUNICIPAL DEMOCRACIES. X.— THE CITY OP LONDON, XL— THE MUNICIPAL REVOLUTION.
VOL. IL — PT. I
INTRODUCTION
In a preceding volume ^ we have dealt with two main forms of English Local Government, the Parish and the County ; organisations which existed from one end of the kingdom to the other. But to the rule of the County — to some slight extent also to the rule of the Parish — there were, up and down England, numerous exceptions, out of which had developed, as it happens, not the least important, and, as some may think, the most picturesque parts of the Local Government of England between the Ee volution and the Municipal Cor- porations Act, namely, those connected with the Manor and the Borough, It does not lie within our province to inquire whether some or all of these exceptions to the uniform organisation of Parish and County may not represent a once universal government, either Manorial or of Village Community character. Whether or not this was the case, the continued existence of these forms after 1689 compels us to devote a volume to the various Exemptions, Immunities, and Franchises which enabled the inhabitants of particular localities to exclude the authority of the County at large, or that of one or other of its officers; and thereby to enjoy, within their own favoured areas, some peculiar forms of self-government.^
^ English Local Oovemment from the Revolution to the Municipal Corporations Act, vol. i. — The Parish and the County, 1906.
2 It may occur to the student that there was, between 1689 and 1835, another kind of definitely localised local governing body, not based on immunities or exemptions, but wielding, within its area, new and specialised powers. Such authorities were, for instance, the Turnpike Trustees or the various types of Street Commissioners, established by Local Acts. With all these authorities we deal in another work. It must suffice here to note that, although affecting limited areas, they did not constitute exceptions to the rule of the County. They might, in fact, without inconsistency with the County or with each other, have been multiplied so as to cover the whole area.
4 THE MANOR AND THE BOROUGH
The proportion of the Local Government of England that was, in 1689, carried on, whether by prescription, by Charter, or by statute, in the form of exemptions from or exclusions of County jurisdiction, was far larger than is commonly supposed.
Thus, with a few insignificant exceptions, the whole force of police that then existed owed its appointment neither to the Parish nor the County, but to Manorial Courts or Municipal Corporations ; whilst the magistracy of the large towns was provided, not by the Commission of the Peace, but by the Mayors, Aldermen, and Eecorders. The suppression of nuisances, which comprised at that time nearly the whole regulative activity of local authorities, was practically monopolised by the Leets of private Lords and of enfranchised Boroughs ; for the recovery of small debts, the Court Baron of the Lord, or its municipal analogue, often called the Court of Record or the Court of Pleas, had largely ousted the Court of the Sheriff of the County at large. Markets and fairs were matters neither of Parish nor of County concern, but were under the control of the individual or Corporate owners of Franchises; whilst many lay and clerical Lords, and most Municipal Corporations, had their own gaols, if no longer their own privileges of "pit and gallows." More important than these common services, which, in 1689, were still small in extent, was the administration of the land, a service not now usually connected with Local Government. But even at the end of the seventeenth century, no small fraction of the surface of the Kingdom was still managed by or in connection with those local governing authorities that we class as Seignorial Franchises and Municipal Corporations. In thousands of rural Manors the rotation of crops, the dates at which the various agricultural operations should be undertaken, the management of the pastures, quarries, and fisheries, the care of the cattle, and the breeding of stock formed part of the business of the same open " Court " that suppressed nuisances, fined minor offenders, chose the local officers, and tried petty actions for debt and damages. In hundreds of urban districts the Manorial Courts or the Municipal Corporations were administering not only the remnant of the ancient commons, but also dwelling-houses, wharves, docks, quays, piers, shambles, and market places. The tolls and dues levied by these
INTRODUCTION 5
authorities, whether by Charter, prescription, or mere ownership of the soil, formed in the aggregate no unworthy rivals of the various County and Parish Eates. By 1835, it is true, the agricultural business of these local governing bodies had, with the progress of inclosure, shrunk into insignificance. The importance of the urban properties and the revenue from tolls had, on the other hand, in many places greatly increased.
In our history of the County we showed that, in 1689, practically its whole business, from one end of England to the other, was transacted by judicial process, in open Courts of Justice, in the guise of enforcing fixed personal obligations. By 1835, as we have seen, this had been silently transformed into administration by committees, meeting in private, appoint- ing, instructing, and controlling a salaried staff of officers according to a variable policy decided on from time to time by the committees themselves. The Seignorial Franchises and Municipal Corporations seem, at first sight, to admit of no such simple generalisation. We shall, indeed, describe the successive stages of what appears to us to be an analogous evolution. But instead of being able to trace this evolution, within the very period with which we are dealing, in the life- history of one vigorous organism, what we have is rather a collection of apparently heterogeneous individuals, showing signs of having been arrested in their development at different stages of their growth ; some remaining in a rudimentary state ; some even reverting to simpler types; and some, again, stand- ing still at what seems full maturity. Those local governing authorities that we describe in our chapters on " The Lord's Court " and " The Court in Euins " never developed, from first to last, anything beyond the machinery of a judicial tribunal, designed to enforce pre-existing rights and obligations. In subsequent chapters we shall describe, under the terms the " Lordless Court," the " Lord's Borough," and the " Enfranchised Manorial Borough," organisations marked by the possession of specialised administrative structure of various grades of com- plexity, from the mere creation of one or two new officers and the custody of a common purse up to a full equipment of Mayor, Aldermen, and Common Councillors, but exhibiting during the whole century and a half little or no development, aud in some cases even retrograding to the simpler form of
6 THE MANOR AND THE BOROUGH
a Lord's Court. The more highly organised bodies that we analyse ia our various chapters on Municipal Corporations — usually, we may observe, exhibiting no great tendency to develop — have in their constitutions the administrative structure predominant, whilst the judicial tribunals and judicial processes have sunk to a subordinate, and sometimes to an insignificant position. It adds to the complexity, and, as we think, to the impression produced of arrested development, that, so far as the period between 1689 and 1835 is concerned, we find all the different types coexisting in each successive decade. In 1835 there were still rural Manors in which the archaic Lord's Court provided the local services by the enforcement of ancient personal obligations. Already, in 1689, the Corporation of the City of London was transacting its extensive business by an administrative apparatus more highly developed than that of the most advanced County a hundred and fifty years later — apparatus more complicated than any modern constitution can show.
Yet in face of this apparent heterogeneity, and of what we may call the sluggishness of development among our various individuals, the very multitude of the specimens, and their variety in detail, enables us to set them out in such an order that they are seen, alike in constitution and in function, to pass almost imperceptibly one into another. Nor is it only between the separate organisms themselves that there are no sharp dividing lines. In particular instances we may see the Court Leet and View of Frankpledge becoming inextricably confused with the General Sessions of the Peace; the Court Baron or Customary Court with the Borough Court of Record or Court of Pleas ; and the Jury of either or both of these Manorial Courts with the Court of Common Council. The student, we suggest, will find it impracticable to regard the various individuals otherwise than as members of one and tlie same genus ; nor, we must add, otherwise than as units in an ascending series. There is, in fact, no logical stopping point, when all the specimens are reviewed, between the most insignificant Court of a petty Lord of the Manor, held once or twice a year at his Hall, for the admission of a new tenant or the appoiutment of the Constable, and the many-chartered Corporation of the Mayor, Aldermen, and Commonalty of the
INTRODUCTION 7
City of London ; an all-embracing government in perpetual session ; a County of itself, controlling the services of the most important mercantile port in the world ; administering a revenue of regal magnificence; and exercising judicial and even legislative functions, asserted to be independent of the High Court of Parliament itself.
We do not wish to assert that this ascending series of surviving specimens necessarily represents the successive stages in the life-history of the most fully-developed Chartered Municipahty. Such a hypothesis we leave to be tested by the historians of the Manor and the Borough. It is, indeed, , plain, even on a survey of what existed between 1689 and 1835, that part of the Alunicipal structure and some Municipal functions are not to be found, even in germ, in any Manorial origin. The historian must take account of those ancient shire towns distinguished by heterogeneity of tenure.^ Also the remnant of Gild organisation clinging to many eighteenth century Municipalities — possibly even the frequent admission to the Freedom of the Corporation by Servitude of Apprentice- ship— points to an ancestry unconnected with the Manor. We must, moreover, not forget the working of the imitative faculty, and of the tendency to assimilation. A constitution which had, by custom and by law, developed out of one form of association may be subsequently adopted by, or imposed upon, other groups of persons associated together for quite other reasons. But whether or not our classification suggests any plausible theory of the growth of the Manor and the development of the Borough, some such classification of the ascending series of franchises and immunities, exemptions and privileges, customs and powers, that existed between 1689 and 1835 outside the County and over and above the Parish, is indispensable to any adequate survey of English Local Government.
A thoroughly intelligent description of these Seignorial Franchises and Municipal Corporations, even as they existed in 1689, would require an historical erudition that we do not possess. Already in the seventeenth century these mediseval institutions had fallen more or less into decay, leaving, in the
* TotOTiship and Borough, by Prof. F. W. Maitland, 1898; The Domesday Boroughs, by A. Ballard, 1906.
8 THE MANOR AND THE BOROUGH
majority of cases, only discoiniected fragments of wliat we may assume to have once been a complicated if not a systematic structure. Without an adequate knowledge of what exactly was the Manor in its prime, and of the part played by the Borough in the local government of the twelfth century, it is difficult, and sometimes impossible, to trace and to understand the significance of such remnants as remained at the end of the seventeenth century. Our lack of knowledge of what the organism in its maturity was and did necessarily hampers our interpretation of its remains. A further difficulty is caused by the fact that these remnants, in many cases, did not remain unaltered. In the Municipal Corporation in particular, the new growths of the seventeenth and eighteenth centuries are often found inextricably twined about the old structure — the gain by accretion coming, in some specimens, to be more than equivalent to the loss by decay. In the case of some of the larger and more populous Chartered Municipalities, such as Norwich and Bristol, Nottingham and Southampton, the development of a Corporate Magistracy so completely sub- merged the more ancient structure, whether Gild or Manorial, that we might almost have described them as particular varieties of a specialised form of the County ; whilst in the exceptional instance of the City of London, one or more of its outgrowths — its so-called Commission of Sewers, if not also its Corporation of the Poor — might, in addition, have conveniently been classed with the Statutory Bodies for Special Purposes that we shall describe in the succeeding volume.
CHAPTEE I
THE lord's COUET
In many parishes of England, town as well as country, we find existing, in the latter part of the seventeenth century, a sort of local governing authority that was neither Parish Vestry nor County Justices, neither Statutory Body nor Municipal Corporation, but one or other tattered remnant of the old jurisdiction of the Manor. Here and there would be found public officers exercising peculiar functions under strange titles. An Aleconner or a Pinder, a Swine-ringer or a Burleyman, a Common Driver or a Constable — sometimes even a vaguely influential potentate called a Portreeve or a Boroughreeve — derived his authority neither from the meet- ing of the inhabitants in Vestry assembled, nor from the Justices of the Peace ; neither from Statute nor from Charter. Once or twice a year a " Court " would be held, to which people would resort, for purposes they scarcely knew what. At this " Court Leet," or " Halmot Court," or " Soke Court," or " Court Baron," or " Forest Court," or " Hundred Court," or "Swainmoot," or "Lawday," as it was variously styled in different instances, all sorts of matters of common interest, as well as questions connected with individual property rights, might be dealt with. In one place all transfers of copyhold property, on death or on alienation, would be registered with quaint ceremonies, accompanied by the exaction of customary fines and fees. In another, various arrangements about the commonfield agriculture, the " town bull and boar," the use of the " town's plough," or the management of the common pasture would form the bulk of the business. In others, Again, the presentment of nuisances and the condemnation
9
lo THE LORD'S COURT
of offenders to a fine would seem to fill the greatest place. It was in such a Court, as Butler tells us in Hudihras, that the villagers would
. . . impeach a broken hedge,
And pigs unringed ; at Vis. Franc. Pledge,
Discover thieves, bawds, and recusants,
Tell who did play at games unlawful, And who filled pots of ale but half-full.^
What was invariable in such a Court was the appointment of one or more officers ; and the plain citizen, to whom the Manor had seemed but a harmless antiquity, might discover that he had been summarily chosen to discharge some onerous public function without fee or reward, or that he had been condemned to pay a small fine for this or that offence against the well-being of the little community.^
1 Hudiiras, by Samuel Butler, Canto II. It will be remembered that Shakespeare makes Christopher Sly, in his "very idle words" —
Rail upon the hostess of the house
And say you would present lier at the Leet
Because she brought stone jugs and no seal'd quarts.
{Taming of the Shrew, Induction, Scene ii.).
2 We know of no adequate study of the Lord's Court, as an organ of Local Government, from the beginning to the end of its development. By far the most authoritative, as well as the most interesting, account of its actual form and working is to be gathered from the various writings of Professor F. W. Maitland ; notably his Select Pleas in Manm-ial and other Seigiwrial Coiirts, 1889, and TJce Court Baron, 1891, both volumes of the Selden Society ; and Tlie History of English Law, by Sir F. Pollock and F. W. Maitland, 1895, vol. i. For the latest discussion of the conflicting views see Surveys Historic and Economic, by Prof. W. J. Ashley, 1900, and T/te Growth of the Manor, by Professor VinogradofF, 1905. Useful bibliographies will be found in Miss F. G. Davenport's Classified List of Original Materials for English Manorial and Agrarian History, 1894 ; and The Manor and Manorial Mecords, by N. J. Hone, 1906. Bacon gives a clear account of the functions of the Court Leet in his Answers to Questions proposed by Sir Alexander Hay touching the Office of Constable, 1608, and in vol. vii. pp. 748-754 of the 1858 edition of his Works ; and its relation to other judicial institutions is well stated in The History of English Law, by Professor W. S. Holdsworth, 1903. Among the numerous legal ti'eatises and manuals for Stewards — not to speak of half-a-dozen archaic works of the sixteenth century — we may mention Th£ Order of Keeping a Court Leet and Court Baron, by Jonas Adames, 1593 ; Jurisdictions, m- the Lawful Authority of Courts Leet, etc., by John Kitchiu, 1598 (and about fourteen other editions in English or French down to 1675) ; The Complete Copyholder, by Sir Edward Coke, 1630 (and half-a-dozen other editions down to 1764); The Relation between a Lmd of the Manor and the Copylwlder his Tenant, by Charles Calthori)e, 1635 ; The Court- Keeper's Guide, etc., by William Sheppard, 1641
THE LAWYERS VIEW OF THE LORD'S COURT n
(a) The Lawyer's view of the Lord's Court
The common bewilderment as to the meaning of the Lord's Court was not shared by the authors of the elaborate manuals of its jurisdiction and procedure, prepared for the instruction of Stewards and others who had the duty of " keeping Courts." In these popular manuals we find dis- played a clear-cut theory of the origin, exact constitution, and precise functions of the Courts of Lords of Manors, asserted with an assurance that may usefully be contrasted with the modesty of conjecture of such modern investigators as Professors Maitland and VinogradofF. "We may, in the twentieth century, doubt whether " the methodically learned John Kitcbin of 1 Gray's Inn, Esquire, and Double Eeader"
(and about eiglit other editions down to 1791) ; Treatise of the Antiquity, Authority, Uses, aiid Jurisdiction of the Ancient Courts of Leet, by Robert Powell, 1642, 1688 ; The Authority . . . of . . . County Courts, Courts Leet, and Courts Baron, by William Greenwood, 1st edition, 1668, 9th edition, 1730 ; Lex Cvstumaria, by S. C[arter], 1701 (other editions to 1796) ; Practice of Courts Leet and Courts Baron, by Sir William Scroggs, 1st edition, 1714, 4th edition, 1728 ; The Complete Court-Keeper, by Giles Jacob, 1st edition, 1713, 8th edition, 1819 ; Lex Maneriorum, by W. Nelson, 1728; History of the High Court of ParliameiU, . . . and . . . of Court Baron and Court Leet, by T. Gm'don, 1731 ; The Complete Steward, by John Mordant, 1761 ; Jurisdiction of the Courts Leet, by Joseph Ritson, 1791 ; Practical Treatise on Copyhold Tenure, etc., by R. B. Fisher, 1794, 1804 ; Treatise on Copyholds, by Charles Watkins, 1st edition, 1797, 4th edition, 1825 ; Laws respecting Copyhold and Court- Keeping, etc., by Henry Fellowes, 1799 ; Practical Treatise on Copyhold Tenure, by John Scriven, first edition, 1816, seventh edition, 1896 ; Copylwld and Court-keeping Practice, by RoUa Rouse, 1837 ; The Law of Copyholds, by Leonard Shelford, 1853 ; and especially The Law of Copyholds, by C. I. Elton and H. J. H. Mackay, 2nd edition, 1893. The last-named work (with those of Watkins and Scriven) we have found the most useful. An admirable account of a mediaeval Manor will be found in The Econmnic DevelopmerU of a Norfolk Manor, 1086-1565, by Miss F. G. Davenport, 1906. For references to MS. Manor Rolls, see p. 116. The most complete series of published records of a Court Leet, extend- ing from 1552 to 1846, is The Court Leet Records of the Manor of MaTicJiester, edited by J. P. Earwaker, twelve vols., 1884-1890. The Durham Halmote Bolls (Surtees Society) and Leet Jurisdiction in the City of Norwich, by Rev. W. Hudson, 1892 (Selden Society), may be consulted for earlier proceedings. The best descriptions known to us of the actual proceedings of Courts Leet in the nineteenth century are those of the Court at Ashton-under-Lyne in 1844 (Health of Towns Commission, First Report, Appendix, vol. ii. pp. 71-73) ; of the Court at Berkeley in 1890, in Gloucestershire Notes and Queries, vol. iv. 1890, p. 27 ; and of the Court at Durham in 1805, in Menu/rials of S. Giles', Durham, edited by J. Barmby, 1896, p. 7. Sec also History of the English Landed Interest, by R. M. Gamier, 1892, ch. xxix. and xxx. We know of no work describing the part played by the Lord's Court between 16S9 and 1835.
12 THE LORD'S COURT
knew quite as much about the origin and early development of the Court Leet and Court Baron as he supposed. Even what he described as its contemporary nomenclature and procedure was, as we shall presently show, unlike the actual facts of many of the Courts that were being held around him. But such treatises as Kitchin's Jurisdictions and Jacob's Complete Court -Keeper had a significance not possessed by any similar handbooks for parish officers or Justices. The Overseers of the Poor and the Surveyors of Highways, like the Clerk of the Peace, could turn to numerous statutes authoritatively defining their powers and duties. But the Lord's Court was not the creation of any Act of Parliament. There was not even a Royal Charter prescribing its constitu- tion or procedure. In default of any authoritative document, the Steward whom the Lord appointed to hold his Court naturally accepted the guidance of the contemporary legal manuals. Hence the perpetual republishing and elaborating of these manuals by a succession of legal experts can hardly have failed to have tended gradually to transform the Courts as they were into the Courts as the lawyers thought they ought to be. Moreover, the legal theory of the seventeenth century has, for us, a further value. It preserves some of the spirit which had inspired the Manorial Courts in their prime, without some understanding of which their function can hardly be appreciated. Before describing the fragments of Manorial Jurisdiction actually forming part of English Local Government between 1689 and 1835, we think it, therefore, convenient to give in outline the constitution, procedure, and functions attributed to the Lord's Court by the contemporary legal authors.
We note, first, that, in the lawyer's view, we have before us not one Lord's Court, but several ; with different constitu- tions and functions, different procedures and officers. There is evident a tendency to elaboration, one learned authority making out as many as five different Courts.^ But this
' In R. B. Fisher's Practical Treatise on Copylwld Tenure, 1794, these are given as the Court Leet, the View of Frankpledge, the Court Baron, the Customary Court, and the Court of Survey. liut theio is no evidence that there was ever a separate Court called the View of Frankpledge, this being merely a duty undertaken by the Sheriff's Turn and afterwards by the Lord's Court (as Court Leet). The Court of Survey (occasionally called also ' ' Court
THE COURT BARON 13
elaboration and distinction was largely, if not entirely, analytic. The models for procedure offered to Stewards constantly assumed that the various kinds of Court would be held at one and the same time, as connected parts of what was in fact a single sessions of one and the same tribunal. We are unable to find — contrary to a common impression — that even the most punctilious lawyer asserted that the several Courts which he analytically distinguished ought, as a matter of law, always to be held at different times or at different places. So far as analytic distinction was concerned, the Courts resolved themselves, in the lawyer's view, into two sharply contrasted tribunals, the Court Baron and Customary Court on the one hand, and the Court Leet and View of Frankpledge on the other.^
(6) The Court Baron
The Great Court of the Manor, or Court Baron, was, in the lawyers' view, essentially a private Court of the Lord, necessarily incident to every Manor, having for its object the maintenance of the rights of the Lord against his tenants and of the privileges of the tenants against the Lord, together with the settlement of their mutual differences and the organisation of their common affairs. It was not a Court of Eecord, but a private jurisdic- tion forming part of the estate and property of the Lord. The Court was to be summoned by notice given by the Steward to the Reeve or Bailiff, and by him affixed to the Church door, or handed to the Parish Clerk to be read in Church, according
of the Supervisor " — see Severn Somerton Court Rolls, by A. Ballard ; Transactions of Oxfordshire Arclueological Society, 1906) was only a special sitting of the Court Baron, at which every tenant of the Manor had to produce his title, and special inquiry was made of the mutual rights and privileges of Lord and tenants. It was "generally held immediately upon the descending of a Manor to a new Lord, or upon the purchase of a Manor, to inform the new owner of every respective estate which he has a right to as Lord, and the tenure and customs by which they are held " (^The Laws rcsjiecting Copy- holds and Court-keeping, by Henry Fellowes, 1799, p. 43). Elaborate details of what a Court of Survey should inquire into are given in The Surveyor's Dialogiie, by John Norden, originally published in 1607, and in a fourth edition in 1738 (see pp. 120-213).
1 That the legal manuals from the thirteenth century onward distinctly contemplated the holding, in one undivided sessions, of all the two, three, four, or even five Courts that they analytically distinguished, will be clear to any one who examines the model agenda for the sessions that most of them supply. In this agenda the items belonging to the several Courts are inter-
14 THE LORD'S COURT
to local usage.^ It was to be presided over by the Lord or his Steward, and had to be attended by all the tenants of the Manor, whether freeholders or copyholders. Neglect to attend the Court — subtraction, or non-performance of suit of Court — was punishable in the absence of an "essoin," or excuse admitted as sufficient, by a fine, and theoretically even by
mingled ; and one Jury after another is to be sworn and charged. As in the Court rolls, so in "the manuals for Stewards which come to us from the thirteenth and fourteenth centuries, we cannot discover two Courts or two methods of constituting the Court " (^History of English Law, by Sir F. Pollock and F. W. Maitland, 1895, vol, i, p. 581). The later manuals are to the same effect. "After the Steward has gone through his charge to the jurors of the Court Leet," says Sir William Scroggs, " he may proceed to his charge to the Homagers or Court Baron " {live Practice of Courts Leet and Courts Baron, by Sir William Scroggs, 4 th edition, 1728, p. 22). Even Sir Edward Coke alludes to Courts "of this double nature." The common practice "where a Court Leet and Court Baron are held together" is referred to (ibid. p. 11 ; Lex Custumaria, by S. C[arter], 1701, p. 73) ; or "where the three Courts are held at the same time " (Practical Treatise on Copyhold Tenure, by E. B. Fisher, 1794, p. 167). The five necessary attributes of the Lord's Court, according to a widely read authority, were "The Lord is chief to command and appoint, the Steward to direct and record, the freeholders to affeer and judge, the copyholders to inform and present, the Bailiff to attend and execute" — thus merging the Customary Court with the Court Baron (ITie Authority, Jurisdic- tion, and Method of Keeping County Courts, Co^irts Leet, and Courts Baron, by W. Greenwood, 9th edition, 1730, pp. 309-405). So, too, in the hundred pages of '.' customs " of particular Manors given by Watkins, the items belonging to the Court Baron, Customary Court, and Court Leet are not distinguished one from another (A Treatise on Copyholds, by Charles Watkins, 4 th edition, 1825, vol, ii. pp. 477-576). "The various Courts," says an able antiquary, "were conducted very much on the same lines in all Manors; that is, all business connected with the transfer of land was duly settled, presentments were made of the tenants for various offences, as trespass, assault, blood- drawing, dnmkenness, pound - breaking, disorderly conduct, etc., and for disobeying sanitary regulations in not cleansing ditches. Actions between tenants were tried, an immense boon to them, for they had a Court of Justice in their own locality, acquainted with the parties to the suit and the witnesses " (The History of Dultoich College, by W. Young, 1889 ; vol. ii. ch. ii., on the Court Rolls, by F. B. Bickley, p. 266). In fact, any careful student of the lawyers' treatises, as of the Court Rolls, will, notwithstanding all the analytic differentiation, have no difficulty in inferring of the Courts which they are describing that — as Professor Maitland tells us of those of the thirteenth century — "the Court which had been enforcing the customs of the Manor did not become some other Court when it turned to punish breaches of the peace or to adjudicate upon actions of debt between the tenants ; a lawyer might analyse its powers, might insist that some were royal franchises, while others were not, but all its powers, whatever they might be, were used in the mass and apparently with little thought as to the various titles by which they had been acquired" (Select Pleas in Manorial and other Seignorial Courts, by Prof. F. W. Maitland, 1889, p. xviii ; see also History of English Law, by Prof. W. S. Holdsworth, 1903, pp. 68-69).
' Practical Trecdise on Copyhold Tenure, by John Scriven, 1816, pp. 433-449. It was said that at least sixteen days' notice ought to be given (The Order of Keeping a Court Leet and Court Baron, by Jonas Adames, 1593, p. 1).
THE COURT BARON 15
forfeiture of the tenement. The " free suitors," or freehold tenants of the Manor, holding of the Lord, in fee simple, land liable to escheat to him, were assumed to constitute the Homage ; and the presence of at least two such freeholders, if not three,^ was declared to be indispensable to a legal Court Baron. But as subinfeudation had been forbidden since the Statute of Quia Emptores in 1290 there were, by 1689, few Manors in which this condition could be complied with ; and the lawyers had been driven to assert that a " Customary Court Baron " could be held in the presence of copyholders only, who themselves constituted the Homage.^ And by special custom, there might be separate Homages or Juries, sometimes of freeholders and copyholders respectively, having distinct functions. " If," said a writer of 1656, " the custom of the place be to make two or more Juries, or one Grand Jury and divers Petit Juries, it is good to observe it." ^
The Court was to be opened by formal proclamation and summons to all concerned to attend. The roll of those owing " suit of Court " had to be read, and the names noted of those who were present. The " essoins " of the absentees were to be received and considered, and the defaulters to be fined. The Homage or Jury was then to be sworn, four at a time ; and the Steward had to address to them a formal " charge." The judgments of the Court were made either by the whole " Homage," or by a Jury of Homagers,* and they were embodied in the form of presentments to the Court, which were accepted and pronounced by the Steward.
The principal business of the Court was to declare and en- force the ancient customs of the Manor, which, whether relating
' In the Manor of Dymock (Gloucestershire) the legal quorum was, by custom, three ; see the "customs" as elaborately recorded in an indenture of 1565, en- rolled in Chancery in 1657 ; mentioned in Jurisdictions, by John Kitchin, in 1598 ; and given in A Treatise on Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. pp. 487-491.
2 Ti^ Relation between the Lord of the Manor and the Copyholder his TeTuxvi, by Charles Calthorpe, 1635, p. 72.
' T]ie Cohort- Keeper's Guide, by William Sheppard, 1656, p. 20. " In some cases," said the lawyers, " the Steward may impanel a second Jury to inquire into the concealments of the first, and fine them " {The Practice of Courts Leet and Courts Baron, by Sir William Scroggs, 4th edition, 1728, p. 16).
* "Out of the copyholders choose your Homage," says a manual (Laws respecting Cojyyholds and Court-keeping, by Henry Fellowes, 1799, pp. 32- 43).
i6 THE LORD'S COURT
^
to the incidents of land tenure, or to the use of the common fields or waste, were legally binding on both the Lord and his tenants. At one Court annually, the Manorial officers were to be appointed — ttie Eeeve or Greave, or Bailiff, who collected the Lord's quit-rents and heriots, his " fines certain " and " fines arbitrary," his " work silver " and his " customary penny," his " chevage " and " childwite," his " boscage " and " foldage " ; the Beadle, who gathered in the fines and amercements ; the Hayward, who had in charge the common or waste ; ^ some- times a Common Driver or a Herdsman, a Hog-ringer or a Swineherd, a Woodward or a " Greave of the Moors," a " Sur- veyor of Hedges " to see that the tenants enclosed during seed-time and harvest,^ or other officers connected with the customary privileges of the community. These officers were in the vast majority of cases "presented by the Homage" — sometimes several persons for the Steward to choose one. The question of liability to service in the several offices, and of the remuneration, if any, for such service, was deter- mined by the ancient customs of the Manor in each case. Moreover, the Court was said to have a vaguely defined power to enact By-laws, binding on all the tenants of the Manor, at least in matters, such as the use of the waste, in which they had a common interest. It was the business of the Homage or Jury also to make presentments of escheats and surrenders of tenements, and of the death of any tenant of the Lord ; of dower and freebench, of " waste," " emblements," and " botes." New tenants had also to be admitted by the Steward, on payment of the customary fees and fines, and with due per-
* It does not seem possible to accept Mrs, Grote's simple etymology which made Hayward = hogwarden {Some AccomU of the Hamlet of East Buinham, by a Resident, i.e. Haniet Grote, London, 1858, p. 28) ; nor is the later identifi- cation of Hayward with hedgewarden more trustworthy. The duties of the mediaeval Hayward, harvestman or reaper (in Latin, m^essor or messarius), a mere farm servant, "who seems to have acted sometimes as pounder," are fully described by Walter de Henley ; see also pp. xxv and xxxiii of T?ie Durham Halmot Rolls (Surtces Society, 1889), and at p. 140 of The Court Baron (edited by F. W. Maitland and W. P. Baildon for the Selden Society, 1891). The word is used for shepherd in the "Journal of a Gloucestershire Justice, 1715-1756," in Law Magazine and Review, vol. ix. p. 280. But in the sixteenth and seventeenth centuries the Hayward might act in almost any capacity as an officer of the Lord's Court. Kitchin gives the title as synonymous with Greave or Beadle {Jurisdictions, etc., by John Kitchin, p. 93 of edition of 1675).
2 As at Gnossall (Staffordshire) ; see The Manor and Manorial Records, by N. J. Hone, 1906, p. 193.
THE COURT BARON 17
formance of the ancient ceremonies of the Manor.^ The Court, moreover, had the important function of hearing plaints and deciding disputes. It had, said Kitchin, been "ordained to determine injuries, trespasses, debts, and other actions,"^ at any rate among the tenants of the Manor, and by immemorial custom, also actions against mere residents within the Manor ; but in all cases limited, by the judges' construction of an ambiguous statute, to actions for less than forty shillings.^ It might or might not examine witnesses, as the freeholders, who were both the judges and the jurymen, chose to decide.* The Court could be held anywhere within the Manor, or, by custom,
^ See the extensive collection of the customs of particular Manors recorded in A Treatise on Copyholds, by Charles Watkins, 4th edition, 1825, pp. 477-576.
2 Jurisdictions, etc., by John Kitchin, 1598, p. 6. "A Court Baron," says another authority, "consisteth of the Lord, Tenants, Steward, and Bailitf within the Manor, and is sometimes called the Copyholders' Court, especially when it is for trial of titles of their lands, for taking and passing estates, surrenders, admit- tances, and giants ; and herein the Lord or his Steward is judge (as the custom of the place is) ; yet this Court is sometimes called the Freeholders' Court, when the actions and proceedings are for trial under 40s., and is something like a County Court, and the proceeding much the same, and was without doubt granted to the Lord originally by the King ; but now most are by prescription, and are commonly held once in three weeks, and may be as often as the Lord or Steward thinks fit, who is supreme judge in law and equity" {The Prctctice of Courts Leet and Courts Baron, by Sir William Scroggs, 4th edition, 1728, pp. 39-40).
3 The Statute of Gloucester, 1278, limiting actions in the King's Courts to cases in which not less than 40s. was at issue, was construed by the judges as for- bidding such actions in the County Court and Court Baron {Select Pleas in Manorial Courts, by F. \V. Maitland, p. Ivi). At Dover, by custom, the Lord's Court had jurisdiction without limit of 40s. {Jurisdictions, by John Kitchin, 1598) ; and in at least several scores of Manors — possibly those once connected with such ecclesiastical corporations as the Knights of St. John — the Court had jurisdiction in probate and testamentary cases (Treatise on the Law of Copyholds, by John Scriven, 7th edition, 1896, p. 423). The wills proved in nearly fifty such Courts, between 1562 and 1815, are now deposited at Somerset House, London, or at various diocesan registries (see the list in The Manor and Manorial Records, by N. J. Hone, 1906, pp. 22, 302).
* The Practice of Courts Leet and Courts Baron, by Sir William Scroggs, 4 th edition, 1728, p. 3. Whether the Court had anciently heard counsel or allowed appearance by attorney is not clear. That it did so in places in the eighteenth century is plain, but we suspect that this was exceptional. We read in 1731 of "the Freeholders' Court having lost most of its business, lawyers and attorneys not finding an account in giving attendance there for one or two cases, and the parties finding it difficult to have the assistance of lawyers there" {The History of the High Court of Parliament . . . and . . . of Court Baron and Court Leet, by T. Gurdon, 1731, vol. ii. p. 610). Occasionally even leading counsel would appear. At a " Baronial Court " held in the archiepiscopal Manor of Lambeth in 1828, with a Jury of copyholders, both the Attorney - General and Henry Brougham were engaged for the several parties in a copyhold case (Augell 0, Angell ; see Times, January 7, 1828).
VOL. IL PT. I 0
l8 THE LORDS COURT
in one Manor for other Manors belonging to the same Lord. It could be called together whenever the Lord or his Steward chose, without unreasonably inconveniencing the tenants ; but usually, by custom, it was to be held every three weeks — a period apparently derived from a Writ of Henry III. to the Sheriff of Lincoln, authorising the Courts of the Lords to be so held,^ whence they were frequently termed Three Weeks' Courts. Finally, as was eventually decided by the Court of King's Bench in 1822, neither the right to hold such a Court, nor its jurisdiction in petty actions, was lost by mere non-user ; so that it could be revived after a lapse of half a century.^
We have said above that the lawyers declared the Court Baron to be a private jurisdiction of the Lord of the Manor, and not a public tribunal. But we must warn the student against a misunderstanding by which we ourselves were long misled. When it was held that the Court Baron was of private, not of public nature, those words were used in a sense very different from that nowadays given to them. All that the lawyers meant was that the Court Baron was not a Court of the King, to be held only by his authority or subject to his will. What the modern student has to bear in mind is that the Court Baron, however little of its power it may have owed to the King, had within its sphere no small part of the administration of the common affairs of the inhabitants of the Manor. It was, in fact, an organ of local government, alike legislative, executive, and judicial in function, with attributes that we shall, in our subsequent analysis, find of considerable interest. It was the Court Baron, and not the Court Leet, that had jurisdiction over the commonfield agriculture that survived, in many cases, down to the nineteenth century, and over the common pastures and wastes that were destined in certain places to become streets of dwelling-houses, market-places, wharves, and docks. It was the Court Baron, and not the Court Leet, that could claim authority -over fisheries and weirs, and generally over the banks and channels of rivers and estuaries, out of which
* Close Roll of 18 Henry III. ; see Ths Law of Copyholds, by 0. I. Elton and H. J. H. Mackay, 2nd edition, 1893, p. 300.
2 R. V. Steward of Manor of Havering atte Bower, 1822 ; in Reports of Cases, etc., by E. V. Barnewall and E. H. Alderson, 1822, vol. v. pp. 691-692 ; Reports of Cases, etc., by James Dowling and A. Ryland, 1823, vol. ii. pp. 176-177.
THE COURT BARON 19
might spring prescriptive rights to tolls and dues. It was the Court Baron, and not the Court Leet, that provided the tribunal for the trial of petty actions for debt and trespass, which we shall see figuring prominently among the Courts by which the autonomy of Manorial Boroughs and Municipal Corporations was built up. It was the Court Baron, and not the Court Leet, that chose the Eeeve, the chief local officer of the little community, who became responsible for collecting the money tributes due to the Lord of the Manor, exactly as the chief officer of the Manorial Borough^ was responsible to the Lord for. his quit-rents, or as the Mayor of the fully-developed Municipal Corporation was answerable for the " farm " of the Borough to the King. Finally, it was the Court Baron, not the Court Leet, that contributed what became the predominant principle of eighteenth - century Local Government — common consent and local autonomy — the Homage being, unlike the Leet Jury, themselves the judges of the Court, interpreting, and therefore developing, the Customs of the Manor as if these concerned themselves alone, without the intervention of the Lord or his Steward, and without reference to the interests of the rest of the community. To the lawyer the Court Baron of the Manor might seem essentially a law court, " the lowest judicial unit of the Kingdom." But "in practice though primarily a law court, the Manor Court would also serve as the administrative and, in some sense, as the legislative organ of the community of the Manor." ^ " The majority of homagers," noted a learned Steward of the seventeenth century, " sworn at the Lord's Court, for the better preservation of order, have, time beyond memory of all men, used, with the Lord's consent, to make By-laws, as well for the stinting and limiting the number, as for appointing times for the putting the tenants' cattle into the common pastures, wastes, and commons of the Manor. And. such By-laws, made with reasonable penalties, and clauses for distress for such penalties, have, by the time aforesaid, been binding and concluding to all the tenants of the Manor. The like orders and consent bind for the mending
1 See Chap. III. "The Manorial Borough."
2 History of Municipal Government in Liverpool, by Prof. Ramsay Mioir, 1906, p. 2.
20 THE LORD'S COURT
of tenants' ways, and for the establishment of the comraon good, and preventing of public annoyances, provided that such orders crossed not the law or statutes of the Kingdom." ^ It may be that it was the Court Leet and View of Frankpledge that gradually assumed the greater prominence in those places in which the Lord's Court continued, without further develop- ment, to be the local governing authority. But it is the constitution and legal attributes of the Court Baron that we shall presently find of equal, if not of greater, significance in our description of the Manorial Boroughs and our analysis of the Municipal Corporations.
Such being the importance of what we may term the Court Baron aspect of the Lord's Court, we may be pardoned for drawing the attention of the sociological student to one of its attributes, unnoticed by the lawyers, which had, we suggest, an adverse influence on its eighteenth-century develop- ment. The common agreement upon which rests the authority of a modern Municipality is that of inhabitants at large — that is, of the consumers of its services. The Court Baron, on the other hand, was essentially the organ, not of the citizens or consumers as such, but of the occupying owners of agricultural land — that is to say, it belonged to the genus of Associations of Producers.^ The student of other types of Associations of Producers will not be surprised to find the Homage resenting the intrusion of " foreigners " and the invasion of the commons by " landless residents." The same spirit led to the exaction of tolls and dues in the market and at the landing stage from those who had not been admitted as tenants of the Manor ; and led, even in unincorporated villages, to the Eeeve, as representative of the Homage,
^ History atid Anliqxdtics of Lewes, by T. W. Horsfield, 1824, vol. i. p. 179 (quoting a document of 1662).
2 By the term " Associationa of Producers" we mean societies or com- munities of persons who are engaged in the production of commodities or services, and who themselves own or control the whole or part of the material instruments of production, or are otherwise self-directing. The best known examples of such associations are the Merchant and Trade Gilds of the Middle Ages and, in our own generation, what are called Productive Co-operative Societies or "self-governing workshops" (to be distinguished from the so-called Distributive Co-operative Societies or "stores," which do also much production, and are Associations of Consumers). See, on the whole subject, The Co- operative Movement in Great Britain, by Beatrice Potter (Mrs. Sidney Webb), 1900.
THE COURT LEET 21
charging a fee to such persons for the privilege of opening a shop. It was, we suggest, the fact that the Court Baron had the attributes that belong to an Association of Producers, that caused it, as we shall see in our account of the Manorial Boroughs, to develop into a close body, renewing itself by co-option, from which the ordinary inhabitant was excluded.
(c) The Court Leet
The Court Leet^ and View of Frankpledge was, so the lawyers held, not a private incident to a Manor, but a public jurisdiction, a Franchise assumed to have been obtained by Royal Grant to the Lord of the Manor, with a view to spare his tenants the trouble of attending the Sheriff's Turn. Such a grant can seldom be traced except in Charters to Boroughs ; but in Manors in which a Court Leet had actually been held time out of mind the grant was presumed. The Court Leet, unlike the Court Baron, was a Court of Eecord, and the Steward who presided was not merely its officer but an integral part of the Court itself,^ empowered summarily to punish by fine any contempt committed in Court, and even to commit the offender to prison in default of payment. He could take a recognisance of the peace ; ^ and, in fact, " in matters within the jurisdiction of the Leet, the Steward," so the lawyers held, " had [in Court] powers equal with the Justices " themselves in their own Courts.* It was a char-
* " The word Leet ... is not to be found either in the Saxon law or in Glanvil, Bracton, Briton, Fleta, or the Mirror (our most ancient law writers), nor in any statute prior to 27 Edward III. c. 28 " (^The Jurisdiction of the Courts Leet, by J. Ritson, 3rd edition, 1816, p. 1 ; ^ Short Treatise of the History and Anti- quities and Jurisdiction of all the Courts of Law, by Henry Aldridge, 1835, p. 193). The word seems to be of East Anglian local usage. "Towards the end of the thirteenth century the word Leet (leta), which seems to have spread outward from the East Anglian counties, was becoming a common name for such a Court " {History of English Law, by Sir F. Pollock and F. W. Maitland, vol. i. book ii. oh. iii. sec. 5, p. 568 ; see also Leet Jurisdiction in the City of Norwich, by Rev. W. Hudson, 1892 ; Select Pleas in Manorial Courts, by F. W. Maitland, 1889, pp. xvi and Ixxiii ; The Coventry Leet Book, by M. D. Harris, 1907).
2 Holroyd v, Breare and Holmes, in Reports of Cases, etc., by E. V. Barnewell and E. H. Alderson, 1822, vol. ii. p. 473.
3 7 Henry VL c. 12 (1429) ; 10 Henry VL c. 8 (1432) ; 11 Henry VI. c. 7 (1433).
* Practical Treatise on Copyhold Tenure, by John Scriven, 7th edition, 1896, p. 441. For instances of the Court Leet becoming indistinguishable from the Petty or General Sessions of the Peace, see pp. 350-352.
22 THE LORD'S COURT
acteristic feature of this Court that it had to be attended by the people at large. In legal theory the obligation to attend and, if required, to take part in the proceedings extended to every male resident within the Manor over twelve — some said over sixteen — years of age, who had dwelt there for a year and a day. It was, perhaps, with reference to this obligation that the 42nd section of Magna Charta had provided that these Courts were " to be held but twice a year, a month after Michaelmas and Easter." But though any " View of Frankpledge " or enrolment in tithings had long since been obsolete, the roll of the inhabitants was, in 1689, still supposed to be called over, and every one had to answer to his name.^ New residents (or perhaps only new freeholders)
* " You must call to the Constable for a Leet Bill, which should compre- hend all inhabitants of the Leet within the precinct above the age of 16 " {The Practice of Courts Leet and Courts Baron, by Sir William Scroggs, 4th edition, 1728, p. 18). The Statute of Marlborough (52 Henry III. c. 10) excused from attendance at the Sheriffs Turn, and impliedly at the Lord's Court, peers, ecclesiastics, and women. Prior to that statute it seems that eveiy one over 1 2, including servants and women, had to attend (Practical Trecdise on Copyhold- Tenure, by John Scriven, 7th edition, 1896, p. 438). But tenants in Ancient Demesne were always held to be exempted (The Law of Ancient Demesne, by J. P. Yeatman, 1894 ; Villainage in England, by P. Vinogradoff, 1892, p. 89 ; Tlie Manor and Manorial Records, by N. J. Hone, 1906, ch. vii.). How long the View of Frankpledge was kept up is uncertain. Long after the Lord's Court had lost its power of trying felonies, a gi-eat authority incidentally tells us that it "retained the duty of viewing the frankpledges . . . which it exercised, it is said, as la' e as 10 Henry VI. (1432) in Cornwall" (The Tenures of Kent, by C. I. Elton, 1867, p. 154). We owe to Mr. Seebohm an even later example. In 1470 we see the Court at Hitchin (Herts) still admit- ting men into " the tithing of the Lord the King " ; and presenting that " John Crouche is of the age of 12 years and more, and has resided within the precinct of this View for one year and beyond, and is out of the tithing of the Lord the King. Therefore he is in mercy, and it is ordered to distrain him to put him- self on the tithing of the Lord the King " (translation Irom MS. Court Rolls, Hitchin, portfolio 177, No. 60, in Public Record Office). We do not know whether this fining of absentees from the Lord's Court, as we see it in the eighteenth century, can be connected with the mediaeval chevagium(see Select Pleas in Manorial Courts, by Professor F. W. Maitland, 1889, p. xxxi). "The strict theory of the law," we are told, " seems to have required that all the frankpledges should attend the view ; but as a matter of fact it was usual for none but the Chief Pledges to attend ; often, however, they had to bring with them a sum of money wliich was accepted in lieu of the production of their tithings " (History of English Law, by Sir F. Pollock and F. W. Maitland, 1895, vol. i. p. 557). It may be, as has been suggested, that the Leet Jury was composed of, or in some way represents, the Headboroughs, and that these were the heads of tithings, or Capital Pledges. In some cases, how- ever, there seems to be no connection ))etween the Jury and either Headboroughs or Capital Pledges ; and the fining of all tenants of the Manor seems often to be unconnected with the Leet Jury. These and other customary payments to the Manor require further study. There is, for instance, the frequent custom of
THE COURT LEIET is
were then "sworn to be faithful and loyal to the King," all absentees being subject to a fine. Here the legal function of the ordinary inhabitant ceased. But the Bailiff or Eeeve had to summon not only the inhabitants generally, but also two or three dozen of the more respectable and substantial residents to serve as jurymen, either for the occasion of the coming Court or Lawday, or, according to local custom, sometimes during the ensuing twelve months. The principal functions of this Jury were inquisitorial and judicial. It was " charged " on its appointment to discover all persons who had committed any offence against the commonweal, whether contrary to the lawful customs of the Manor or to the law of the land ; and to " present " such offenders to the Court. For though the Court Leet was practically the Court of the Lord of the Manor, and was presided over by his Steward, it administered, so the lawyers said, not the Lord's will but the King's justice, and the Lord himself could be " presented " in his own Court for a breach of the law and condemned accordingly. The Court Leet was, in fact, a local criminal court — as the lawyers said, the King's Court holden by the Lord, — but the King did not
*' common fiue," payment made annually either by every tenant or resident, whether present in Court or not, or by the officers of particular townships on behalf of their townships. There is much reason to suppose, as Ritson declared, that this " common fine," or " certum letoe," was a payment made to excuse all the suitors but the Chief Pledges from appearing at the Court {Jurisdiction of the Courts Leet, by J. Ritson, 3rd edition, 1816, p. 120). At the Easter Leet of the Manor of Wimbledon (Surrey) " the Headboroughs pay a Common Fine, for Putney, 6s. 8d. ; Roeliampton, 2s. ; Mortlake, 8s. 4d. ; Barnes, 5s. ; Wimbledon, formerly 8s. 4d., but abated by reason of the parsonage to 6s. 8d." {The Law of Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. pp. 554-556). In a case brought before the Court of King's Bench a customary exaction of ten shil- lings each from the jurymen as Chief Pledges was upheld {Term Reports, vol. ii. p. 42 ; Jurisdiction of tJie Courts Leet, by J. Ritson, 1816, p. 100). On the other hand, this view does not explain the cases in which a payment is exacted from all and sundry, whether they attend or not. "Cert Money and Common Fine," says an eighteenth-century writer, " is a fine paid by resiants or residents of several Manors to the lords thei-eof, for the certain keeping of the Leet, and sometimes to the Hundred (as the Manor of Hook in Dorsetshire pays Cert Money to the Hundred of Egerdon). And Common Fine is a certain sum of money which the residents within the View of some Leets paid to the Lord thereof, called in divers places Headsilver, in others Cert Money and Headpence ; and was first granted to the Lord towards the charge of his purchase of the Court Leet, whereby the residents had now the liberty of doing their Suit Royal nearer home, and not be compelled to go to the Sheriff's Turn. As in the Manor of Sheapshead in the County of Leicester, every resident pays a penny per head to the Court held after Michaelmas, which is there called Common Fine" (2'Ae Complete Ste^mrd, by John Mordant, 1761, vol. i. p. 37). Other synonyms were " King's Silver," "Headmouey," and " Chief Silver."
24 THE LORUS COURT
interfere either by appointing judges or other officers, or by reviewing or controlling its proceedings. It was the Lord's own Steward who presided over the Court, selected the inhabitants who were to serve as the Jury, instructed them as to their duties, and appointed, on their nomination, the Constable, the Aleconners, and the other public officers of the Manor, whilst all the fines imposed went into the pocket of the Lord, or were the perquisites of the Manorial officers.
The Court Leet differed, however, markedly from a modern criminal court both in its procedure and in the practical range of its jurisdiction. The Court, it was assumed, would act without instigation from any prosecutor, and needed to issue no summons to a defendant. Everybody was, in fact, presumed to be in attendance. The Jury presented offenders out of their own knowledge, sometimes aided by the reports of the various officers, and their presentments appar- ently condemned such offenders, even in their absence. Tiiere was no necessity to hear witnesses, and neither attorney nor counsel would be present,^ though the Court would listen to a defendant in extenuation or denial of the accusation. In their presentment the Jury not only declared the defendant guilty of the offence mentioned, but also indicated the appro- priate penalty. As the Court had no gaol at its command, and, as seventeenth-century lawyers held, no power of impiison- ment,^ this penalty nearly always took the form of a money
' " When they are discharged the same day," says Eitson, "it would seem necessary for them to proceed chiefly upon evidence, and indeed there is gener- ally, if not always, a proclamation for that purpose. . . . The proceedings . . . are without expense, the suitor pays no fees, and advocates or attorneys of course never enter it " {Jurisdiction of the Courts Leet, by J. Ritson, 3rd edition, 1816, pp. 23-24). But, as above mentioned, lawyers did sometimes attend the Lord's Court, which was at once Court Baron and Court Leet.
2 Coke, who always took a limited view of the power of the Lord's Court, seems first to have asserted this {The Compleat Copyholder, by Sir E. Coke, 1630), and it became accepted. "The Court Leet," says a law book of 1745, quoting Sir William Scroggs, " is the only Court which may fine but not imprison" {The Justice of Peace, by Theodore Barlow, 1745, p. 159). The stocks for dnmkards (4 James I. c. 5), the pillory and tumbril for bakers and brewers (51 Henry III. st. 1, c. 6), and the ducking-stool and brank (or scold's bridle) were, however, available, and seem to have been lawfully inflicted as punishments by the Court Leet (Jurisdiction of the Courts Leet, by Joseph Ritson, 1816, p. 12), at any rate in the Middle Ages (see for a case in 1290, Select Pleas in Manorial Courts, ^)y F. W. Maitland, 1889, p. 98). Ritson com- plained that Coke had taken an unduly limited view of the Court's powers {Jurisdiction of Ike Courts Leet, by Joseph Ritson, 1816, p. 19).
THE COURT LEET 25
fine or " amercement." The presentment was then referred by the Steward to two Affeerors/ or officers appointed to " aff'eer " the amercement, by which was to be understood its final assessment at a definite money penalty, usually less than the maximum indicated for the particular class of offence. Such a fine, if not at once paid in Court, had to be collected by the Bailiffs, or Beadles, or " Serjeants " of the Manor, or, if no such officers had been appointed, by the Constable, who, with or without a Manorial distress warrant from the Steward, had power to distrain on the goods of defaulters.^ The pre- sentment of the Jury, made in one form and received by the Steward in Court, might be " retired " or reversed the same day, if the Steward chose to allow it, by another Jury ; but was, so the lawyers held, " the day passed, as true and sacred as the Gospel," not subject to traverse or appeal, in that or any other Court.^ Even more peculiar in modern eyes was the scope of the Court Leet's jurisdiction. As we see it in the legal text- books of the sixteenth and seventeenth centuries, it had already lost its authority over the great majority of criminal offences. " Petty treasons and felonies," says Kitchin, " are
^ Whether the affeerors were chosen by the Steward or by the Jury is not clear. In the Manor of Worplesdon (Surrey) it was customary, "for the Law- day," for "one to be a freeholder, but if a Court without a Lawday " for both to be copyholders {Treatise on Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. pp. 559-561).
2 "A Steward may by parole command a Bailiff to make distress " {Treatise of the Antiquity . . . of the Ancient Courts of Leet, by Robert Powell, 1642, p. 33). "The Lord may have an action of debt or distrain for it of common right ; and such distress may be taken in the streets, and be sold " {The Justice of Peace, by Theodore Barlow, 1745, p. 159).
3 Jurisdiction of the Courts I^eet, by Joseph Ritson, 1816, pp. 9-10. But though not subject to appeal, or, strictly speaking, to traverse, a presentment that affected the party's freehold property might be made the subject of com- plaint to the Court of King's Bench, which that Court would try. Moreover, that Court's jurisdiction in other matters was not ousted by the fact that they had been dealt with in the Lord's Court. Thus, when the Jury of the Lord's Court of the Manor of St. Giles's in the Fields on complaint of the keeping of , over 400 hogs by a distiller near St. Giles's Pound, with a stench that was abominable, had formally presented that this was no nuisance, such a decision did not prevent an indictment being brought in the Court of King's Bench, when the Jiiry found that it was a nuisance (R. v. Smart, 1734 ; see notes of trial among the Hardwicke MSS. ; Life of Lord Chancellor Hardwicke, by G. Harris, 1847, vol. i. pp. 265-270). The lawyers drew a distinction between offences. It was said by Hale, " that if there be a presentment in a Leet for a personal misdemeanour it is a conviction, and conclusive ; but if it be for a nuisance or any matter that concerns freehold, the party may come up after- wards and traverse" (Jv/risdidion of the Courts Leet, by J. Ritson, 1816, p. 140).
26 THE LORD'S COURT
enquirable and presentable in a Leet, but not punishable there." All matters of indictment had, indeed, been trans- ferred to the assizes by a statute of Edward IV. The Court Leet, meeting only once or twice a year, with its cumbrous machinery of universal attendance and its inability to impose sentences of imprisonment, was obviously unfitted for dealing with petty police cases. The whole business of the conser- vancy of the King's peace, including, therefore, every oase of assault, was, in fact, taken over by the Justices of the Peace in Petty or Quarter Sessions. It was to these Justices, and not to the Court Leet, that Parliament throughout the six- teenth and seventeenth centuries confided the jurisdiction with regard to the new statutory offences, which were superseding so many of the old Common Law misdemeanours. Thus, by 1689, there remained to the Court Leet, in the lawyer's view, little more than the petty delinquencies connected with the Assize of Ale, the Manorial market, and the use of the highways, together with the wide and elastic offence denoted by a common nuisance.
To the modern student, the Suppression of Nuisances seems a comparatively insignificant part of Local Government. But to the lawyer and the administrator of 1689 it comprised, along with the Belief of the Poor, practically the whole of local administration. As we shall see in the subsequent volume, in which we deal with the Suppression of Nuisances, this was the root out of which sprang such services as the Maintenance of Roads, the Drainage of Towns, the Paving and Cleansing and Lighting of Streets, and the whole of what we now call Public Health. " A common nuisance," says a con- temporary lawyer, " seems to be an offence against the public, either by doing a thing which tends to the annoyance of all the King's subjects, or by neglecting to do a thing which the common good requires." ^ When we come to describe the regulative activity sanctioned by this definition we shall see that it covers an amazing range of requirements, both positive and negative; each generation — with or without express direction from the Legislature — dropping out some offences and adding others, the categories now swelling, now contract-
' Jiiatice of the Peace, by R. Burn, 6th edition, 1758, vol. ii. p. 432 ; citing a dictum of Hawkins.
I
THE COURT LEET 27
ing, 80 that the volume of individual personal activity dealt with was always varying. Thus, in the Courts Leet of the fifteenth and sixteenth centuries, we find the Stewards directing the Juries to present persons guilty of "eavesdropping" or " theftbote," of maintenance or barratry, of " being a common and turbulent brawler " or " a common scold," of " selling unbaited beef " or " gashing hides." In the seventeenth and eighteenth centuries the more common " annoyances of all the King's subjects," to which the Juries directed their attention, were unsecured ditches or unmended highways, trees over- hanging the road, refusing to pave the street in front of one's house, or declining to serve as Ale -taster, Dog -muzzier, or Scavenger. From the middle of the eighteenth century down to the very end of the period with which we are dealing, we find, in the roll of presentments, quite other kinds of personal conduct stigmatised as common nuisances — such as the emission of smoke, heaping refuse on unoccupied land, per- mitting privies and cesspools to drain into the newly-made sewers, leaving cellar flaps open and unguarded, retaining hanging signs, permitting dangerous bulls to go at large, keeping mastiffs unmuzzled, or allowing pigs to roam in the streets. In fact, it is difficult to find any kind of personal conduct, whether intrinsically innocent or plainly criminal, and whether or not expressly included among statutory offences, which might not, at one period or another, have found its way, as a common nuisance, into the presentments of a Court Leet Jury.
Closely connected with this judicial business was the power assumed to be possessed by the Court Leet, equally with the Court Baron, of making new By-laws, binding on all the residents within the Manor. The earlier legal writers found the Court Leet making such By-laws, and accepted this function as warranted by tradition. Gradually it became of undoubted authority. " It seemeth that of common right," wrote Dr. Burn in 1756, "any Court Leet, with the assent of the tenants, may make By-laws under certain penalties, in relation to matters properly within the cognizance of such Court, such as reparation of the highways and the like."^ Within what limits this By-law-making power would have
1 Jvslke ofHie Peace, by Dr. R. Burn, vol. iii, p. 240 of edition of 1820.
28 THE LORD'S COURT
^
been, in any particular generation, upheld by the King's Courts must remain uncertain, as the point cannot be said to have been very definitely determined. But whether or not the King's Courts would have upheld their dicta, we find the legal manuals unhesitatingly advising the Stewards that such By-laws might be made.
The Court Leet exercised also another important function which we do not nowadays associate wdth a criminal tribunal. It had the duty of appointing whatever staff of public of&cers to attend to the government of the locality that custom required. There were, first of all, the officers charged with " conserving " the King's peace within the Manor. In a small rural Manor this meant only the appointment, year by year, of one of the residents to serve as Constable. In larger parishes there might be several Constables for different hamlets or tithings ; they might be called " Chief Pledges," " Boroheads," " Borsholders," " Tithingmen," " Deciners," " Headboroughs," " Thirdboroughs," or by other ancient titles of which the original meaning had been forgotten ; but their duty was always to preserve order in the little community. The legal form seems to have been for the Jury to present one or more persons as liable to serve the particular office, and for the Court — that is the Steward — to appoint one or more of the persons so presented. In addition to these officers, particular Manors had, by custom, to appoint such others as Aleconners or Ale-tasters, Carnivals or Carnals, the Finder, Pinner, or Poundkeeper, the Dyke-reeve or Moss-reeve or Wall-reeve, and the Burleymen or Bylawmen. Sometimes in an old " forest " district the Court had to appoint a " Greave of the Forest," and various subordinate forest officers. In the numerous unincorporated market towns it was the Court Leet that had to appoint the Bread-weighers and Viewers or Inspectors of Weights and Measures, the Market-lookers, the Searchers and Sealers of Leather, the Pecksealers, and the indispensable Bellman or Town-crier ; whilst in populous towns there might also be Town Scavengers, Dog-muzzlers, Clerks of the Wheat, Fish, and Butchery Markets, or even, as at Lewes, a " Clerk of the Spars and Withs." ^ The whole official staff of a Court
> The History atid Antiquities of Lewes, by T. W. Horsfield, 1824-32, p. 174.
THE COURT LEET 29
Leet might thus be very numerous — in exceptional cases even exceeding a hundred.^ In all these offices service was com- pulsory upon all adult male residents within the Manor, and could be enforced by summary fine and distraint on any recalcitrants. It was taken for granted by the lawyers that every respectable male resident was liable under legal obliga- tion to serve the Manor in his turn,^ without salary or other remuneration. It was, in fact, no part of the conception of local government, at the time when the Court Leet was in its prime, that there should be anything that we should now call the Municipal administration of public services, that is to say, the employment of paid officers to do positive services for the common enjoyment. Every service requisite for the simple life of the little community was a duty imposed, as a condition of tenure or an obligation of status, upon some individual resident or another. If every man did his duty in obeying the law of the land and the customs of the Manor — if he neither broke the King's peace nor committed a public nuisance — all would be well. But as men were perverse and weak, there would be defaulters unless some one was responsible for seeing that the Law and the By-laws were adhered to. In the old system of frankpledge, the " Capital Pledge " was apparently held responsible for his " tithing," or group of inhabitants, on all counts. In the Court Leet, as we find it in the eighteenth and nineteenth centuries, each Manorial officer was technically responsible for presenting the com- mission of one specified offence throughout the whole Manor. The Jury was responsible, on the information given by these officers, for presenting and amercing all offenders. " The soul of the system," says a learned antiquary, " consisted in the universal obligation of every member of a tithing [that is, in theory, every adult male] to disclose and bring to punishment every breach of the laws and customs by which the community
1 The Court Leet Records of the Manor of Maiichester, vol. vi. p. 241 (Court of 5th October 1686, when 110 officers were appointed).
2 By Common Law, the Deputy Steward of the Salford Court explained in 1835, the choice of persons to serve as Constable rested with the Court, unless there was a valid custom to the contrary. Such a custom existed in the town- ship of Urmston, the "nomination of Constables by house-roll, so that each person in the township bears the burden in his turn " {^MancJiestcr Times, 1835).
30 THE LORD'S COURT
was bound." ^ It is this note of the social obligation of every citizen, pervading both the legislation and the legal manuals of the sixteenth century, that we find characterising, in particular, the government of numerous little communities by the Court Leet of the King holden by the Lord of the Manor.
* Led Jurisdiction in the City of Nortoich, by Rev. William Hudson, 1892, p. Ixxv.
CHAPTER II
THE COUKT IN RUINS
We now pass from the clear-cut tlieories of contemporary lawyers to the actual constitution and working of the Lord's Court between 1689 and 1835. It will be at once apparent that we are dealing with an institution that is nowhere in its prime, but in every instance falling into decay. In some Manors the Lord's Court still provided the principal machinery of Local Government ; in others there survived only a mere shred of a constitution. In many districts it is the manage- ment of the land that has passed away ; in others, the function of trying petty cases of debt and trespass ; in others, again, it is the power of fining nuisance -mongers or of appointing Constables that has been lost. What will become abundantly clear is that the Lord's Court, as it actually existed, differed widely from the lawyer's view of what it ought to have been. In many of the cases that we shall describe there was no separation, either in constitution or procedure, between what the lawyers termed the Court Baron of the Lord, and the Court Leet of the King. In these cases we see one and the same Court, in a single undivided sitting, transacting, through one set of officers and one Jury, without distinguishable order or precedence, all the business of the little community, whether this business related to the maintenance of the Lord's rights, the conveyance of a plot of land from seller to purchaser, the mutual arrangement of the common rights of the tenants, the keeping up of fences and dykes, the crops to be sown in particular fields, the dates at which the various agricultural operations were to begin, the trial of civil actions, the present- ment of public nuisances and minor crimes, the fining of
31
32 THE COURT IN RUINS
offenders, and the choice and appointment of an indefinite variety of local public officers. We find, in fact, in the majority of our examples, simply an Undifferentiated Court This absence of the theoretical differentiation between Court Baron and Court Leet will become apparent to the reader of the descriptions alike of the Courts of the Hundred, Honour, or Barony, and those of the Manor or Borough — in the Middle Ages, it may be said, all tribunals were Undifferentiated Courts — but we shall recur to it specifically when we come to the Court of the Manor.
(a) The Hierarchy of Courts
The actual constitution of the Lord's Court was, however, in some places more complicated than is described by the lawyers. We discover still existing in some parts of the country between 1689 and 1835 a curious array of Courts above Courts, and jurisdictions within jurisdictions. We come across Hundred Courts, Honour Courts, Soke Courts, Barony Courts, Knight's Courts, or Forest Courts, wielding authority over large districts within which are also various distinct Halmote Courts, Courts Baron, Courts Leet, or Borough Courts. In the ruinous condition into which these Courts had, by 1689, everywhere fallen, we cannot with any certainty unravel what relationship they had once borne to each other, except that the smaller Courts stood in a certain position of inferiority to those of wider jurisdiction. We cannot, for instance, say that the relationship was ever one of Courts of First Instance and Courts of Appeal — there was, we imagine, in mediaeval jurisdiction, taking the form of punishing defaults, nothing corresponding to the customary modern right of a defendant in a civil action to appeal against a decision of a Court of First Instance.^ Nor do we find evidence of any right of
* Whether such a right of appeal had ever existed we do not assume to decide. In one great ecclesiastical jurisdiction, at least, such a right of hearing appeals was, in 1284, strenuously asserted on behalf of the Hundred Court, and as strenuously denied on behalf of the Court of the Manor. At Ciondal, in Hampshire, where the Manor belonged to a priory, it was claimed by the Bishop of Winchester, as Lord of the Hundred Court, that "where the Prior and his Steward and his other ministers, for a bribe, or through partiality, or in any other manner, refuse to do justice [in the Court of the Manor] to any jjlaintiff of the Hundred of Crundale, the Lord Bishop of Winchester and his Steward have power at the first Hundred [Court] at Blackheathfield to inquire, terminate, and amend this wrong." To this the Convent, as owner of the Manor,
THE HIERARCHY OF COURTS 33
appeal to an outside or higher jurisdiction in the civil suits between tenants of the Manor. But it seems clear that, in some cases at any rate, the presentments of the inferior Courts were enforced by actions taken at the head Court ; moreover, there is reason to believe that the head Court did not always refrain from dealing with cases which might have been within the jurisdiction of the inferior Court ; and it certainly had some sort of jurisdiction in default.^ " It seems a good prescription," says Sir "William Scroggs, " for a Grand Leet (to which other inferior Leets may be subordinate, as that to the Torn) to oblige the Chief Pledges and a certain number of the resiants or inhabitants of every town, etc., within its precinct to appear at every such Grand Leet, to inquire into such offences as were not inquired into in the inferior Leet." ^ We may perhaps infer that if an offence had not been presented in the Court of a petty Manor, it might be presented in the Court of the Honour or Grand Leet of some wider jurisdiction, if such existed ; and if not presented at any subordinate Court, then at the Court of the Hundred.^ Hence, we venture — though without desiring in any way to imply a complete subordination of one to the other — to describe these interest- ing series as Hierarchies of Courts.
made answer ' ' that it is altogether to be denied, because he [the Bishop] has no right to intrude himself in the Prior's Courts ; because if bondmen, they have no refuge except to their Lord, and if freemen, the King alone and his Justices ought to hear and terminate complaints of a false judgment." It was admitted that the tenants of the Manor owed suit and service to the Bishop's Hundred Court, which held the View of Frankpledge for the whole Hundred ; and it was eventually agreed that the tenants should not be called to account in the Court of the Jtlanor for anything already dealt with by the Hundred Court. We gather that the jurisdiction in appeal or in default was left undecided {Records and Documents relating to the Hundred and Manor of Crondal, by F. J. Baigent, Hampshire Record Society, Part I. p. 16).
1 Ritsou seems to have been unable to conceive of a Hierarchy of Courts. He asserts that the jurisdiction of the " Leet of the Hundred " was only over so much of the Hundred as was not within the jurisdiction of the Court Leet of a Manor ; and similarly with the Sheriff's Turn {Jurisdiction of the Court Leet, by J. Ritson, 3rd edition, 1816, p. 5).
'^ The Practice of Courts Leet aiid Courts Baron, by Sir William Scroggs, 4th edi- tion, 1728, ^. d ; see History of English iaw,byF. W.Maitland, 1895, vol.i. p. 569.
^ Practical Treatise on the Law of Copyholds, by John Scriven, 7th edition, 1896, p. 436. It is noteworthy that, in the sixteenth centiiry, the Hundred was still regarded as the jurisdiction next above that of the Manor. In 1555, when it was provided that the Courts Leet should deal with offences under the first Highways Act (2 and 3 Philip and Mary, c. 8), the Stewafds of Leets were to render returns of all estreats and fines, not to the Justices of the Peace or to any County officer, but to the Bailiff or High Constable of the Hundred.
VOL. n. PT. I U
34 THE COURT IN RUINS
For the most remarkable of these Hierarchies of Courts we must go to the West of England. The wide area of the Vale of Berkeley, comprising the ancient Hundred of that name in the County of Gloucester, had been ruled over, time out of mind, by a series of mutually related Courts of the Lord of Berkeley Castle. There was, first, the Hundred Court for the whole area; then the numerous Halmotes or Halimotes, the Lord's Courts for the separate Manors within the Hundred ; and, finally, certain differentiated Courts, called Borough Courts or Leets, held in and for certain favoured townships, which had, by ancient seignorial grants, been constituted Boroughs.^
In 1689 this Hierarchy of Courts, which had existed " time out of mind," was still in full, though somewhat formal, operation. Twice a year the Lord's Steward issued his precept to the Bailiff of the Hundred, directing him to summon to the Court of the Hundred and Honour of Berkeley — also called the Court Leet or Law Day — " to be holden at the Booth Hall in the town of Berkeley " ; to command the attendance of the persons who were to form the Jury — these in 1733 were thirty in number ; in 1734, forty-two ; drawn from a score of different Manors, — and to require the Constables of the Manors and the Tithingmen of the several parishes and townships that " they give notice of holding the same in the respective parish churches on the Sunday next before the Leet," in order that not they only, but also all who
1 For iiifoniiation as to the Courts of the Hundred of Berkeley we are indebted to the eourtesy of the Earl of Berkeley, of his land steward, Mr James Peter, and of Mr Hutton, steward of his Lordship's Courts, who kindly permitted con- sultation of the records in the muniment room at Berkeley Castle ; as well as to our friend Miss Hadley, Archivist to the London County Council, who was good enough to devote part of a holiday to the work. A detailed description of the Hundred Court at Berkeley in 1890 will be found in Gloucestershire Notes and Queries, vol. iv. p. 27 ; and some account of the Hundred Rolls in ibid. vol. V. pp. 85-88. See also Fifth Report of Royal Commission on Common Law Courts, 1833 ; House of Commons Returns of Hundred Courts, 1839, and of Courts of Request, 1840 ; The Berkeley Manuscripts, by Sir John Maclean, 3 vols., 1883-85 (Bristol and Gloucester Archaeological Society) ; and (for the two Boroughs) First Report of Municipal Corj^oration Commissioners, 1835, Appendix, voh i. p. 19 ; Report of Royal Commission on Uureformed Corpora- tions, 1880 ; History of tlie Town of Berkeley, by Rev. John Fisher, 1856 and 1864; "Corporation Insignia," in Notes and Queries, 2nd ser. vol. v. p. 519 ; and " Extinct Corporations of Wotton and Berkeley," in Notes and Queries, 7th ser. vol. ii. p. 64 ; .4 New History of Gloucestershire, by Samuel Rudder, 1779, pp. 846-854; and Historical Notes relatinr/. to the Borough of Wotton, by W. H. Wright, 1872 (in Cheltenham Public Library).
THE HIERARCHY OF COURTS 3S
had business at the Court, might be present. The Tithingman of Stinchcombe — we know not why — had to bring with him two men. In the manuscript " Precedent Book," which has been the guide of many generations of Stewards, we can almost see before us the whole procedure of this ancient tribunal. The Steward opens the Court by calling on the Bailiff for a return of the Jury, which, together with that of the Tithingmen and Constables of Manors, is formally called over, and the absentees fined ; for attendance is compulsory, and right down to the middle of the nineteenth century the fines are enforced. The Constable of Bevington comes into Court near the Steward, and, half- bent, prays for the prosperity of the noble family of the Berkeleys. The Tithingman of Woodmancote brings a " tag " with which to tie up Lord Berkeley's " writings " under penalty of ten shillings fine. The Jury is sworn, in groups of four, one Bible being supplied to be held by each group, and the King's Proclamation against Profaneness and Immorality is read. The Steward delivers his charge to the Court, directing the Jury to inquire into every conceivable offence committed within the Hundred, from manslaughter down to the robbing of hen-roosts, from the unlawful pursuit of game to conspiracies by artificers, from felony to forestalling and regrating — all still declared to be " presentable " in this Court, even if successive Stewards have felt obliged to sub- stitute that word for " punishable." Then the Jury examines into the state of repair of the highways and bridges, the stopping -up or diversion of footpaths and watercourses, and the obstruction of the roads by encroachments or laying of timber. All those who can give information relating to any of these delinquencies are commanded to give it then and there in Court. Various officers of the Hundred continue to be appointed, at any rate the Bailiff of the Hundred and the Haywards of the several Manors, even after the appoint- ment of others had been discontinued. Various Acts of Parliament are solemnly read and proclaimed. The present- ments made at the last previous Court are read over, and those which are reported to have been complied with are crossed off. Meanwhile the Jury has completed its new presentments, which are written out by the Bailiff, and signed by the several jury- men. The Constables make their returns, and are sworn to
36 THE COURT IN RUINS
the truth thereof. The Steward, with such formal solemnity as he can command, then closes the Court. Other sittings of the Court are held by the Steward every three weeks, to which the subordinate Manors owe no attendance, though the free- hold tenants of the Barony are supposed to be present and to form the Court, Tlie business of these three-weekly sittings, for which a Jury of householders was summoned when required, was, at any rate in the nineteenth century, confined to the trial of civil actions for debt arising anywhere within the Hundred of Berkeley. Throughout the whole of the eighteenth and nineteenth centuries this ancient Court continued to be held, its formalities and ceremonies gradually dropping off one by one — its criminal jurisdiction already gone before 1700, its presentments of nuisances hardly lasting beyond 1800,^ its hearing of civil suits passing in the middle of the nineteenth century to the new County Court, its fines for non-attendance ^ not surviving the third quarter of the nineteenth century; until, in 1900, the thousand -years* record is broken, and the Court is silently discontinued.
We pass now to the Halimotes, or Courts Baron, held on behalf of the Lord of Berkeley in the several Manors of the Hundred. These were either " General Halimotes," held normally once a year, or " Special Halimotes," held when required for some urgent business. These Courts, we are informed, dealt during the eighteenth century only with admissions of new copyholders, transfers of property,^ and
1 In 1801 the owners of the land adjoining a road, and the owner of a footbridge over a brook were presented for not repairing these highways ; and the latter was amerced in forty shillings, leviable on his goods and chattels (MS. Entry Book, Berkeley Hundred Court, October 1801).
^ " We present that it appears by the oath of John Nealo, Bailiff of the said Hundred, that he, the said Bailiff, did, on 16th April, go to the dwelling-house of N. W. of Cambridge in the Parish of Slimbridge within the said Hundred, to levy on his goods and chattels the sum of five shillings, being an amercement imposed on him for not attending at the last Court Leet for the said Hundred to servo on the Jury. And we present that it further appears to us by the oath of the said Bailiff that R. U. — brother to the said N. U. — did on the said 16th April in- stant pay to the said Bailiff the sum of five shillings in discharge of such amerce- ment for the use of the said Lord of the said Hundred " (MS. Entry Book, Berkeley Hundred Court, 18th April 1803). A similar entry occurs six months later.
8 Here is a typical entry. " N. W., gentleman, came to this Court by warrant of attorney from W. W. H., and surrendered a close of pasture late Symonds, held by the life of the said W. W. H. , and the estate of W. W. H. , after which proclamation was made and J. H., the life in reversion, came and was admitted" (MS. Court Rolls, "Wotton, 20th October 1732).
THE HIERARCHY OF COURTS 37
purely Manorial offences. Tlie Steward presided, the rest of the Court consisting of what was called " the Homage," being all the copyhold tenants of the particular Manor, who sat without individual summons by virtue of their tenancy. In the score or more of such Courts actually held in the year 1733, we noticed that the Homage numbered from two to about a dozen. Attendance was compulsory, under penalty of a fine of five shillings, which was usually " affeered " to one shilling.^ It is interesting, as bearing on the relationship of the several Courts in this Hierarchy, to find it expressly stated that the fines imposed by the Manor Courts were recovered by action in the Berkeley Hundred Court at one of its three- weekly sittings.^ So far as we have ascertained, the only business of these Halimotes during the eighteenth century that can be said to relate to Local Government was their appointment of a Eeeve of the Manor, who had power to distrain on the cattle of the lands of any copyhold or lease- hold tenant of the Manor for any amercement imposed by the Court.^ Service as lieeve was compulsory on the copyhold and leasehold tenants in rotation, " the furthest behind in serving the office of Reeve " being always appointed, even if a woman, or a group of officials like the Overseers of the Poor, when these happened to have a copyhold or leasehold workhouse.* But the office could always be served by a
^ MS. Precedent Book, Berkeley. At a Court Baron at Ham Manor defiiulters were amerced half a crown, affeered to one shilling (MS. Entry Book, Court Baron, Ham, 14th October 1797); but at one at Cam, ten shillings, alfeered to two (ihicl. Cam, 7th October 1833).
- Gloucestershire Notes and Queries, vol. iv. pp. 27-30.
3 " The Homage also present that the Reeve of this Manor in virtue of his office may distrain for rent or for any amercement imposed in the Lord's Court upon any copyholder or leaseholder, as well as the cattle of such copyholders or leaseholders as of any other renting or occupying the copyhold or leasehold land or tenements of such leaseholder or copyholder, provided the cattle be found feeding upon the same copyhold or leasehold estate ; and further that the Reeve is not bound to ascertain whose cattle those they may so distrain are, but finding the same in or upon such copyhold or leasehold lands or tenements may lawfully distrain them, as now and at all times out of memory hath been accustomed to do " (MS. Entry Book, Courts Baron of many Manors, October 1810).
* A woman is appointed Reeve " as being furthest behind," and serves by deputy (MS. Court Roll Book, Court Baron of Hurst Manor, 14th October 1799). ' ' The Homage present that the Overseers of the Poor of this tithing are the furthest behind in serving the office of Reeve for the house called the workhouse on Berkeley Heath" (MS. Court Roll Book, Court Baron of Berkeley, 5th October 1S33).
38 TUE COURT IN RUINS
" sufficient deputy." ^ Right down to the very end of the nineteenth century these Manor Courts were still being held, the Juries were presenting encroachments and Manorial defaults, and petty officers were being appointed.^
The third sort of Courts held within the Hundred of Berkeley were those of the townships or so-called " Boroughs " of Berkeley and Wotton. These were each styled " Court Leet with View of Frankpledge and Court Baron," and separate records were apparently in each case kept. But what was actually held in each of these picturesque little towns was only one Court. Once a year the Steward issued his precept to the " Serjeant of the Borough," requiring him " to summon all such persons as owe suit to the Court Leet and Court Baron of the Borough," and to " warn a sufficient number of the most able in the Borough to serve on the Grand Jury." On the appointed day the Steward opened the Court by calling on the Constable to read first the " Resiaut Roll," with loud proclamation to " all who live within the jurisdiction of this Court" to come forward and do the suit they owe, and then the " Jury Panel," those who did not answer to their names being amerced. The jurymen were then sworn, in the same groups of four that we have already described in the Hundred Court. At each of these Courts there were two distinct Juries, each usually exceeding a dozen in number — the Homage, composed of freehold, leasehold, and copyhold tenants of the Manor ; and the " Grand Jury " or " Leet Jury," made up merely of residents. The Juries both made presentments, those of the Homage relating to surrenders and admissions, conveyances and other property business, together with purely Manorial defaults, such as suffering a messuage to decay, allowing water from a new well to injure a neighbour's house, or removing a gate and not replacing it, for which small
* "At this Court it was found and presented by the Homage that G. S. is the furthest behind in serving the office of Reeve for a close called Rowles Court Leaze. We therefore order the said G. S. to take upon hiin the said office, either by himself or his sufficient deputy, in one month's time under the penalty of £5, to be levied upon his goods and chattels, or to be recovered by action of debt for the use of the Lord of the said ]\lanor " (MS. Entry Book, Court Baron of Slirabridge Manor, 12tli October 1797).
^ See, for instance, the interesting description of the proceedings in 1887 of " the Court for the Manor of Wotton Foreign," beingso much of the Parish of Wotton as lies outside the Borough, in Gloucestershire Notes and Queries, vol. iv. pp. 27-30.
THE HIERARCHY OF COURTS 39
amercements are imposed. The Grand Jury or Leet presented all manner of nuisances relating to highways and water- courses ; unlicensed alehouses, scolds and eavesdroppers ; the delinquencies of butchers and bakers ; pound breach and rescue of cattle ; and encroachments on the streets. The officers appointed at the previous Court then made their returns of offenders against the laws and Bylaws concerning their several departments — handing in small scraps of paper on which we fear they had too often perfunctorily written " omnia bene," or words to that effect.^ But the Court would sometimes insist on the office being executed. " We present E. C. and E. S.," reports the Grand Jury of Wotton in 1713, " for neglecting their office, particularly not taking up vagrants. We do fine them ten shillings each." ^ Then the officers of the Borough for the ensuing year were appointed, the Grand Jury presenting three names as suitable persons to be Mayor, and two names in the case of other officers, for the selection of one by the Steward. For each of the two Boroughs the Court appointed a Mayor, a Serjeant, a Constable, and one or two Ale-tasters, Carnivals, and Searchers and Sealers of Leather.^ Sometimes other officers — a Scavenger or a Surveyor — are mentioned as acting under the appointment and direction of the Mayor. At Berkeley it was the custom — we observe it still in force between 1797 and 1804 — for the Court to recite and declare every year a string of heterogeneous rights or By- laws, on the presentment, be it noted, of the Homage Jury. N"o pigs are to go at large, under penalty of three and fourpence, the Hayward being ordered to impound any found wandering and to take his own fee of twopence ; no " soil, dung, apple must, or any other stinking matter " is to be deposited in
^ "We have served the office to the best of our knowledge and we have found it all well " (Return of Searchers and Sealers of Leather, Court Rolls of Wotton, 2nd October 1714). " Wc present that we have found no flesh nor fish that have been brought to our market and exposed for sale, upon our vigilant search, but what hath been fit and wholesome for the body of man ; and that we have nothing more to present at this time " (Return of Carnivals, ibid. October 1709). " We have took care that the bulls have been baited, ere that the meat hath been sold for the same, and we have carefully looked after all other meat and fish" {ibid. 30th September 1710).
2 MS. Court Rolls, Wotton, 3rd October 1713.
3 Aldermen are mentioned (among the Leet Jury) both in Berkeley and in Wotton (MS. Entry Book, Wotton Court, '20th October 1737 ; Berkeley Court, 21st October 1745). These were (in 1833 at Berkeley) the twelve members of the close Town Council.
40 THE CO UR r IN R UINS
Berkeley streets, under penalty of a pound, and the Scavengers are ordered to sweep up all dirt into heaps every Saturday, for the officers of the Lord to carry it out of the Borough ; no timber or other obstruction is to be put in the streets ; the common pasturage on Berkeley Heath is not to be usurped or surcharged ; every person coming into the Borough to carry on business or set up a household — we gather without having been born or perhaps apprenticed within the Borough — is to pay the Mayor six and eightpence as of old ; nobody but the Mayor shall put up any stall in the Market or Fair ; the right of all persons to a free wharf or landing place on the river is declared and perpetuated ; and there is a stern prohibition of taking in " inmates " to be a nuisance to the Borough. On the other hand, at Wotton, it is the Grand Jury that we see making presentment of stopped-up watercourses, broken gullies, and filth thrown down the gutter in " a time of flood to the great annoyance of" a certain mill. A butcher is presented, on the knowledge of one of the jurymen, " for putting stinking meat to sale in our market " ; and other frequenters for selling goods " by weight unlawful being too light." So, too, we find the Grand Jury ordering that no persons shall stand with goods in a certain passage on market day, that posts and rails be set up for the protection of foot passengers, that obstructive encroachments be removed, and that certain unlawful windows that overlook the almshouses be stopped up.^
Another case of a Hierarchy of Courts continuing in active existence is presented by the great Manor of Taunton, extend- ing over nearly the whole of Taunton " Deane," or Vale, in Somerset.^ Here the Manor transcended even the Hundred,
* " Item, we order that for the future no person shall lay dung ... in the street called . . . (MS. Court Rolls, Wotton) ; all persons that do claim . any right to the Chipping Well shall pay their proportion toward the repairing the same, upon the jiain of five shillings " (ibid.).
2 The Customs of the Manor of Taunton aiid Taunton Deane, by Richard Locke, 1785 ; The Ancient Customs of Taunton Deane, by H. B. Shillibeer, 1821 ; History of Taunton, by Joshua Toulmin, 1st edition, 1791, 2nd edition, edited by James Savage, 1822 ; History of Somerset, by John Collinson, 1791, vol. iii. pp. 225-240 ; General Accou7U of West Somerset, by Edward Jeboult, 1873— Part II. The Valley of the Tone, Part III. Taunton ; On the Origin of Gilds, with a Notice of the Anx^ient Gildhall of Taunton, by J. H. Pring, 1883 ; "The Customs of the Manor of Taunton Deane," by W. A. Jones, in Somerset Archceological aiul Natural History Society, vol. xviii. pp. 76-99 ; House of Commons Return of Courts of Kce^ucst, 1840, p. 140.
THE HIERARCHY OF COURTS 41
the Lord's Court at the head of the Hierarchy, which contiuued to be held down to Victorian times, exercising jurisdiction over no fewer than five Hundreds and many tithings and parishes. Besides this Court, there existed minor Courts for the Liberty (by which we understand the precinct of the Castle), and for the " Hundred of Taunton Market " ; which (like Berkeley and Wotton) had been granted exceptional autonomy, under the name of a Borough.^ The " ancient customs of the Manor," formally presented and recorded in 1647 and again in 1817, enable us to gain some vision of this interesting Hierarchy. The highest Court seems to have rejoiced in a number of different names or nicknames, according to the date at which or the purpose for which it was held. In 1647 it sat as a Court of Survey. Twice a year it was the Court Leet or Lawday. On the occasion on which, once a year, the Manorial officers were chosen it was the " Choice Court." The sitting " next after Michaelmas Lawday " was the " Fulfilling Court," when two tenants in each Hundred were sworn to view the list of amercements for the past year, and to " affeer " them ; it may be that there was a second " Tulfilliug Court " in the spring. There was the " Ossinge Court," or " Penn Court," of which the meaning is unknown to us. Finally there was the " Three Weeks' Court," called also the Court Baron, held every three weeks, primarily as a petty debt court,^ though it dealt also with defaults. This score or more of Courts — incidentally referred to as " Tenants' Courts " ^ — all held in the Great Hall of the Castle of Taunton, before the Steward or, in the case of the Three Weeks' Court, by the Clerk of the Castle — had to be attended by all the customary tenants of the Manor, but these, if not specially summoned as jurymen, could escape on payment of small fines — a penny each time, or eightpence for the year, bought exemption from the Court Baron or Three Weeks' Court, and threepence each time did the same for the others. At the Leet or Lawday, twice a year,
1 " Outfaring Courts " are also mentioned {The Customs of the Manor of Taunton and Taunton Deane, by Richard Locke, 1785), which were perhaps those held for the " Outfaring " part of the Vale, sixteen parishes which had been alienated from the Manor by William I. {History of Taunton, by Joshua Toulmin, 1822, p. 45).
2 House of Commons Returns of Hundred Courts, 1839, and of Courts of Request, 1840.
3 Customs of the Manor of Taunton and TauiUon Deane, by R. Locke, 1785.
42 THE COURT IN RUINS
^
there was summoned a " Grand Jury," which seems not only to have presented nuisances and Manorial offences, but also to have heard and decided disputes relating to copyhold tenements. At one of the two Leets or Lawdays the Grand Jury presented suitable persons to serve as High Constable for the Hundred of Taunton Deane, and as Tithingmen for one or two of the tithings. It is not apparent how the numerous Petty Constables or Tithingmen for the other tithings were appointed, though it is stated that these all had to attend the Court Baron or Three Weeks' Court to present defaults ; and also to attend the two Leets or Lawdays. That this attendance had fallen into desuetude, may be inferred from the fact that it was recorded in 1647 that the Tithingmen of twenty-seven tithings had to pay a shilling each yearly to be excused from bringing in tlieir bushel measures to be tried by the standard on the two Lawdays.^ At the Choice Court, the tenants had to make a choice of persons to be appointed as " Eeceiver to receive the Steward at the two Leets or Lawday Courts ; and one several Reeve for every Hundred to gather the Lord's rents ; and Beadles to serve the Lord's Courts, and to gather the amerce- ments and customary works, and to make account thereof to the Reeve as hath been accustomed within every Hundred." ^ The office of Reeve had to be served in turn by the " bond- land" tenants — those having houses on their holdings — according to a rotation known as "the Recognition of the Manor." There were "certain plots of ground in each Hundred, the profits of which are appointed to the Reeves for the time being." ^ Two tenants had also to be appointed annually as Viewers, and sworn to present any customary tenant neglecting to keep his house in repair.*
Among the minor Courts of the Hierarchy, we know
1 Ancient Ctistorns of Taunton Deane, by H. B. Shillibeer, 1821, Appendix, p. 9.
2 Ibid. By 1821 the Bailiff had, it seems (in all the Hundreds except one), superseded tlie Reeve in the collection of the Lord's rents and dues. It is to be noted that, between 1781 and 1801, these included six heriots, varying from £42 to £84 each (ibid. pp. 92-93).
3 Ibid. p. 114.
* Jbid. p. 107. Other officers of the Manor in 1647 were the Constable of Taunton Castle, the Bailiff of the Castle, the Clerk of the Castle, and the Porter, or Keeper of the Gate of the Castle — uU, we assume, appointed by the Lord or his Steward ; the Woodward and the Overseers or Surveyors of the Water-works, Wears, and Banks, of whom we know nothing (ibid. Appendix).
THE HIERARCHY OF COURTS 43
nothing of the two Lawdays per annum and the " Three Weeks' Courts," which the Clerk of the Castle is said to have held for the Liberty of the Precinct of the Castle, nor of the " Outfaring Courts," of which we have a bare mention. But in the Borough of Taunton the Clerk of the Castle held not only a " Borough Court " every fortnight, presumably for petty debt business, but also two " Lawday Courts " annually, at which were chosen, right down to Victorian times, the two Portreeves, who collected the Lord's quit-rents in the Borough and enjoyed the privilege of letting for their own profit the standings in the market-place;^ two Bailiffs, who seem to have been ^ the chief executive officers of what had become a flourishing market centre ; together with two Constables, six Tithingmen, and one or more Ale-tasters. The two Constables did much of the administrative work of the town under the Bailiffs : billeting soldiers, managing the almshouses, and dis- tributing various dole charities. In return they enjoyed the patronage, presided at an annual " Constables' Feast," kept the profits of the market scales, and succeeded to the more lucrative office of Portreeve.^ But the real rulers were the Bailiffs, who had, by the end of the eighteenth century, made themselves virtually permanent, and, after 1792, were recognised by Parliament as the returning officers for the Borough. " The Jury year after year empanelled are," we are told in 1821, " called the Packed Jury. . . . One of the Bailiffs . . . did publicly assert that the Bailiffs going out of office always took care to assemble such persons as jurors as would return the nominees of themselves. ... It is notorious that some years ago a Jury was summoned, and it being rumoured that they meant to alter the succession of Bailiffs, they were immedi- ately dismissed, and another Jury empanelled. . . . For a succession of years four individuals only have filled the office of Bailiffs, two of them taking the same in alternate years." * This Court of the Borough of Taunton had in fact attained to a measure of autonomy, the Jury electing the Bailiffs and the
1 History of Taunton, by Joshua Toulmin, 1821, p. 277.
2 Before 1627 and after 1792 — the interval having been filled by a Chartered Municipal Corporation.
3 General Account of West Somerset, by Edward Jeboult, 1873, Part III., Taunton, pp. 24-26.
* Ancient Customs of Taunton Deane, by H. B. Shillibcer, 1821. p. 130.
44 THE COURT IN RUINS
Bailiff selecting the Jury, without the interference of the Lord's Steward. It had, moreover, developed a certain amount of administrative structure. As such it falls into our class of Manorial Boroughs, to be dealt with in a subsequent chapter. We mention it here merely to complete our survey of the Hierarchy of Courts.
Hierarchies of Courts were, of course, not confined to the South and West of England. In Northumberland, for instance, there continued to be held, down to the middle of the nineteenth century, a whole array of Courts on the wide domains of the Duke of Northumberland.^
' We were unable to examine the MS. records of these Courts, but there seem to have been («) Great Courts of the Baronies of Alnwick, Tindale, and perhaps Prudhoe ; (6) Halmote Courts or Courts Baron for particular Manors, of Avhich fifteen were still being held in 1839, for petty debt cases, and possibly other business ; and (c) a Court for the Manor of the Borough of Alnwick, nominally every three weeks, but actually only half-yearly, at which Burgesses or Freemen were admitted, nuisances presented, Bylaws made, oifenders amerced, copyhold properties transferred, and the Borough officers formally appointed and sworn. With the struggle of this Borougjj Court for autonomy we shall deal later, when we describe the Manorial Borough of Abiwick. It would be interest- ing to discover what exactly were the functions and the relations of the highest members of these Northumberland Hierarchies. For instance, we hear of a "Knight's Court," or "curia militaris," held at Alnwick Castle, nominally attended by the great freehold tenants, and exercising jurisdiction over the entire barony of Alnwick. Such Courts, though apparently disused between 1741 and 1791, were being held in the latter part of the seventeenth and the beginning of the eighteenth centuries ; dealing, we infer, primarily with successions and admissions, disputes between free tenants of ditlercnt Manors, encroachments of one Manor on another, and defaults not duly presented in the inferior Courts. At the Knight's Coiirt held in 1707, for instance, "the tenants of Chillingham, Fawdon, and Swinhoe were amerced 20d. each township, who owe service to His Grace for watching the Fair according to ancient custom," for their default in not sending in the men whom they had to furnish to guard the Borough of Alnwick at the great Alnwick Fair. Latterly, at any rate, the "Knight's Court" appointed Constables for various Manors, for which Courts were not held, and dealt with many minor offences and defaults throughout a wide district. The Court of the Barony of Tindale, on the other hand, held at Wark, seems to have survived down to 1846 as a petty debt Court, meeting three times a year, and resorted to only in cases in which the defendants did not reside within the jurisdiction of any subordinate Courts (MS. Records of the Corporation of Alnwick, 1594-1835; Feudal and Military Antiquities of Northumherlaiid and the Scottish Borders, by Rev. C. H. Hartshorne, 1858 (being vol. ii. of "Memoirs of the Archaeological Institute of Great Britain, etc.," for 1852) ; History of Alnwick, by George Tate, 1869 ; History of Northumberland, vol. 1., by E. Batcson ; Fifth Report of Royal Commission on Courts of Law, 1833, pp. 170-171 ; House of Commons Returns of Hundred Courts, 1839, and of Courts of Request, 1840).
We do not even know whether the Alnwick " Knight's Court " is to be identified with the Capital Court of the Barony, stated in 1483 to be held every twenty days, harvest excepted. The term "Knight's Court "(curia militaris)
I
THE HIERARCHY OF COURTS 4S
In the " Liberty of the Hundred of Macclesfield," in Cheshire, where the Earl of Derby held sway, we find an intricate series of jurisdictions within jurisdictions. There was the Court for the Hundred of Macclesfield, held annually as the " Court of Great Leet " and monthly as a Court Baron or " Court of Trials," exercising authority over the whole of the Liberty of the Hundred. The records of its annual Leet sessions show it appointing Constables for those townships which had no Courts of their own, and receiving presentments from these Constables as well as from its own " Grand Jury," relating to offences throughout the Hundred outside the Forest and the Borough of Macclesfield — selling ale without licence, various public-house disorders, breaking the Assize of Bread, failure to repair pavement, " keeping two mongrel curs unmuzzled," breaking the peace and making an affray, en- croachments on the waste, " keeping a gun," and " keeping a brace of greyhounds and killing a hare in Birtles ; is a great killer and destroyer of hares," adds the Constable.
At its nominally monthly sessions, or " Court of Trials " — which gradually came to be only two or three times a year — the same Steward presided with the same Ofiicers, but an entirely different Jury was empanelled, the " Jury for Trials," by which pleas of debt and trespass to an unlimited amount were dealt with. Meanwhile the Forest of Maccles- field, comprising part of the Hundred — nine of the townships being, in fact, partly in the Forest and partly outside it — had its own Courts. We do not know whether a Swainmote was held later than that of 1616, of which we have seen the records, but throughout the eighteenth century and down to
ia unusual, but not unknown elsewhere. In the Honour of Forncett in Norfolk, comprising several Manors having their own Courts, there was held, in the fifteenth century, an Honour Court or " Knight's Court " {The Economic Development of a Norfolk Manor, 1086-1565, by F. G. Davenport, 1906, Appendix I.). In the Isle of Wight, right down to the middle of the nineteenth century, there continued to be held the "Knighton Court or Knight's Court," by the Steward of the Governor of the Island, in the Town Hall of Newport, every three weeks. Its functions became restricted to petty debt suits, in which it exercised jurisdiction over the whole island except the Borough of Newport. After the end of the eighteenth century even this function became disused, and the Court continued in form only (House of Commons Return of Courts of Request, 1840, pp. 46-47). The Archbishop of York held a "curia militaris " for the Liberty of Ripon from, at any rate, the fourteenth right down to the nineteenth oentury. In 1840 it was a Court for civil actions, unlimited in amount (ibid. pp. 174-175).
46 THE COURT IN RUINS
^
the middle of the nineteenth we find a "Halmote Court," called subsequently " Court of Eecord for the Manor and Forest of Macclesfield," held by the same Steward as the Hundred Court, and eventually on the same day as the latter. At the six-monthly meetings of this Court for the Manor and Forest it acted also as a Court Leet, appointing Constables for the several townships in the Forest. At the other sittings of the Court conveyances of copyholds were made and an extensive business was done in the trial of civil actions, without limit of amount. Finally, there were also held, at least in the sixteenth century, two separate Courts for the Borough of Macclesfield, both using the Town Hall — one the " Portmote," or " Great Leet of the Borough," by Lord Derby's Deputy Steward, which seems to have dealt with the usual nuisances and affrays, false weights and measures, the regula- tion of the common, and the trial of civil actions ; and the other "the Mayor's Court," held by the Mayor of the Borough, apparently for the trial of civil actions in which both parties were Burgesses. How exactly these several Courts had come into existence, and what was the precise demarcation among them all, we have been unable to ascertain. What is interesting is that all the resiants of the Hundred, including those in the Manor of the Forest and those in the Borough, owed suit and service to the Hundred Court; while all those in the Borough, including the Mayor and Corporation, owed suit and service also to Lord Derby's Portmote. A dispute between the Earl of Derby and the Borough in 1569, as to the relations of the two competing Borough Courts, led to an award by two judges attempting to define their several spheres, and giving separate keys of the Town Hall to the Mayor and the Steward respectively. We gather that Lord Derby's " Portmote," or " Town Leet," was discontinued sometime in the seventeenth century, leaving the Mayor's Court in possession of the field. Tliis continued, as the "Borough Court," to try personal actions without limit of amount. Meanwhile the ordinary business of a Court Leet, formerly done by Lord Derby's Portmote, was apparently silently absorbed by the Mayor, ex-Mayor, and two Aldermen, sitting as Justices for the Borough. A Charter of Charles II. had made them Justices, and given power to hold general
THE HIERARCHY OF COURTS 47
Sessions of the Peace, but not to try felonies. This amounted to little, if any, more jurisdiction than had been possessed by the Portmote; and what we liave, in fact, is a Court Leet passing insensibly into what was called a Court of Quarter Sessions. Thus in 1761-1762 we see the Borough Justices in what they called Quarter Sessions appointing the Burley- men, the Fish and Flesh Wardens, the Moss Lookers of Densmoss (a part of the Borough Common), the Searchers and Sealers of Leather, a Scavenger, a Pig-catcher, a Beadle, and the two Common Lookers ; and dealing indiscriminately with assaults and affrays, trespasses on the Common, wrongful enclosures of the waste of the Borough, false weights and measures, and exposing unwholesome meat for sale.'^
How far this hierarchical organisation of the Lord's Court still existed in 1689, and how quickly the surviving remnants disintegrated, we have been unable to ascertain. From the scanty records that we have been able to consult, we infer that it continued over large parts of England during the eighteenth century, but everywhere becoming more formal than real, and everywhere falling rapidly into decay .^
1 MS. Records, Macclesfield Hundred Court, 1688-1835 ; MS. Court Books of ditto, 1698-1808 ; MS. Records, Court Leet and Halmote Court of Maccles- field Manor and Forest, 1684-1835 ; MS. Award of 1569 ; MS. Records, Macclesfield Portmote, 1591 ; MS. Records, Macclesfield Borough Court, 1761 ; MS. Quarter Sessions Rolls, 1761-1762 (all in Lord Derby's Macclesfield Estate Office) ; House of Commons Returns of Petty Debt Courts, Hundred Courts, and Courts of Request, 1828, 1839, and 1840 ; Fifth Report of Royal Commission on Courts of Law, 1833, p. 35a ; 'Report on Certain Boroughs, by J. T. Hogg, 1838, pp. 51-74 ; History of Macclesfield, by John Corry, 1817 ; Maclesfelde in ye Olden Time, by Isaac Finney, 1873 ; Contributions towards a History of . . . Prestbury, by F. Renaud (Chetham Society, 1876) ; East Cheshire, by J. P. Earwaker, 1880, vol. ii. pp. 459-525 ; History of the County Palatini of Chester, by Geo. Ormerod, 2nd edition, 1882, vol. iii. pp. 739-757.
2 We catch glimpses of a similar Hierarchy of Courts in the gi-eat episcopal domains in various dioceses. The Hundred Court of Farnham, in Surrey, for instance, still held, but shrunken to the mere copyhold business of Farnham itself, apparently once had jurisdiction over a wide stretch of the Bishop of Winchester's domains (see Collections of Records and Documents relating to the Hundred and Manor of Crondal, by F. J. Baigent, Hampshire Record Society, 1891 ; I'he Manor of Manydoion, Hampshire, by G. W. Kitchin, 1895 ; Victoria County History of Hampshire, vol. ii. 1906, pp. 579-586), including the Manorial Boroughs of Farnham and Alresford, the latter to be subsequently described. As late as 1718 a " Court of the Bishopric " was held, at which representatives of a score of Manors attended (MS. Manor Rolls, Farnham, 1718). We do not know in what connection stood the " Cheyney Court," which we find held throughout the eighteenth and for the first third of the nineteenth century ; latterly, at least, at Winchester, within the cathedral precincts, and exercising jurisdiction throughout the Bishop's temporalities, extending to over two hundred towns and
48 THE COURT IN RUINS
We suggest that it may possibly be that in the former exist- ence of a Hierarchy of Courts we have the explanation of some of the quaint instances in which the representation of a small hamlet has survived in a comic form. In Dorsetshire, for example, we read that " the Tithiugman of Combe Keynes is obliged to do suit at Winfrith Court ; and after repeating the
villages. In 1833 its business was confined to hearing petty debt cases (Fifth Report of Royal Commission on Courts of Common Law, 1833, p. 88a). Similarly, in the diocese of St. Albans, the Manor Rolls of Winslow (Bucking- hamshire) in the time of Edward III. show that " in case of a dispute a Court was held under the great ash tree at St. Albans, and the decision of this superior Manorial Court of headquarters settled the question " {The English Village Community, by F. Seebohm, 1883, p. 31). So the Abbot of Gloucester in the thirteenth century held a ' ' Libera Curia " for his great freehold tenants, whilst each separate Manor had its own Halmote {^Select Pleas in Manorial Courts, by F. W. Maitland^ 1889, p. xix). We may likewise infer a Hierarchy of Courts in the great Honour of Clitheroe, of which " the customs of the copy- holds" were "ascertained by the Jury of Survey within the forest of Pendle in the Manor of Igtenhill, 1666." Throughout the wide extent of the Honour there were " Hamlet Courts" twice a year, which we may interpret as Halmote Courts. There was also a Court of the Honour, attended by all the tenants. The Homage or Jury presented a Greave or Bailiff. There was also a Deputy Greave, elected in open Court by a majority of the tenants. All "real" plaints were to be tried in this Court, by a Jury of twenty-four tenants {The Lavi of Copy- holds, by C. I, Elton and H. J, H. Mackay, 2nd edition, 1893, Appendix VIII, p. 511). There was, moreover, within the Honour at least one Manorial Borough, that of Clitheroe, where a ' ' Court of Record " sat weekly under a Recorder (House of Commons Return of Courts of Request, 1840, pp. 68-69), and inde- pendent administrative structure had been developed, to which we subsequently refer (pp. 156, 205). Another instance of a Hierarchy of Courts, with subordin- ate Manors and Boroughs of various degrees of independence, is presented by a Welsh Lordship — typical, we suspect, of other Welsh jurisdictions. The Manor paramount of Cantref Moelynaidd comprehends four Hundreds of Radnorshire and twelve mesne Manors. The Boroughs of Knighton, Cnwelas, New Radnor, and Rhayader, together with the obsolete Boroughs of Pain's Castle and Presteign, are also included in it. The Manor paramount continued, through- out the eighteenth century, and indeed through most of the nineteenth, to exercise jurisdiction over them all, except the Borough of New Radnor. The Steward held a Court Baron for the whole lordship every three weeks, the business of which had become confined to petty debt cases, for which a Jury of six men was summoned when required. Courts Leet were also held within the mesne Manors, and also (at least in the Bailiwick of Gladestry and Colfa) a Court Baron monthly for small debts. Within the Boroughs, the Steward of the Lordship also held Courts Leet, at which Juries of Burgesses nominated new Burgesses, who were admitted and sworn and thereby became entitled to the Parliamentary franchise for these Boroughs. The two ancient Boroughs of Pain's Castle and Presteign either lost, or had never possessed, such Courts, and the House of Commons disallowed in 1690 the claims of their Burgesses to vote. The Borough of New Radnor (p. 236), on the other hand, had become largely in- dependent of the Hierarchy, getting a Royal Charter establishing a close Cor- poration, and holding its own Courts {History of Radnorshire, by Rev. J. Williams, in Archceologia Catnbrensis, 3rd ser. vols. iii. p. 26, andiv. p. 1, 1857-58 ; First Report of Municipal Coi-poration Commission, 1835, vol. i. pp. 357-362),
THE HIERARCHY OF COURTS 49
following incoherent lines, pays threepence and goes out with- out saying another word : —
" With my white rod, And I am a fourth post. That threepence makes three,
God bless the King, and the Lord of the Franchise, Our Weights and Measures are lawful and true. Good-morrow, Mr. Steward, I have no more to say to you.
" On default of any of these particulars the Court Leet of Combe is forfeited." ^ It does not appear to be an unwarranted inference that the Tithing of Combe Keynes, though possibly having a minor Court of its own, had not been granted the privilege of standardising its own weights and measures, and had to do suit at the superior Court at Winfrith by four men, of whom the Tithingman was the leader, and eventually the proxy for the others, paying a penny each for their absence. The attendance of the Tithingmen of the whole Hundred was (as M'e have seen at Taunton) usual at the Hundred Court. " If there be more than one Tithingman, as always is in the Hundred Court," says a widely circulated manual, " swear them all in like manner, and receive from them the Common Fine or King's Silver. Then take from them their resiant rolls or lists of their tithings ; call them over and mark them that answer thus, ' appears.' " ^ The attendance even of the Tithingman might be dispensed with, his staff or rod of office being sent to represent him. Thus in the Hundred of Twyford, in Kent, " there was," we read, " till of late years a singular though a very ancient custom kept up of electing a Deputy to the Dumb Borsholder of Chart, as it
^ Hislory and Antiquities of Dorset, by John Hutchins, 1774, vol. i. p. 127 ; Ancient Ovstoms of Taunton Deanc, by H. B. Sliillibeer, 1821. Can "post" be derived from " prepositus," the word used for Reeve ?
2 TJie Complete Courtkeeper, or Land Steivard's Assistant, by Giles Jacob, 1st edition, 1713 ; 8th, 1819, p. 30. AVe may catcli a glimpse in 1774 of such attendance of the Tithingman at the Court of the Hundred at Whitchurch in Dorsetshire, comprising nineteen tithings. At the Court of this Hundred the residents in all the tithings were supposed to attend, and (as in the Hundred of Berkeley) to serve on its Juries. Two Constables were regularly appointed for the Hundred. But subordinate Courts were also held in some, at any rate, of the Manors within the Hundred, at which Petty Constables for these Manors (or apparently for the tithings) were appointed. Only in twelve out of the nineteen tithings did the Hundred Court appoint the Petty Constable (K, r. Genge, in Reports of Cases, etc., by Henry Cowper, 1783, pp. 13-17).
VOL, n. PT. I K
50 THE COURT IN RUINS
was called, claiming liberty over fifteen houses in the precinct of Pizeinwell, every householder of which was formerly obliged to pay the keeper of this Borsholder one penny yearly. This Dumb Borsholder was always first called at the Court Leet holden for the Hundred of Twyford, when its keeper, who was yearly appointed by that Court, held it up to his call, with a neckcloth or handkerchief put through the iron ring fixed at the top, and answered for it. This Borsholder of Chart, and the Court Leet, has been discontinued about fifty years, and the Borsholder who is put in by the Quarter Sessions for Wateringbury claims over the whole parish. This Dumb Borsholder is made of wood, about three feet and half an inch long, with an iron ring at the top, and four more by the sides near the bottom, where it has a square iron spike fixed, four inches and a half long, to fix it in the ground, or on occasion to break open doors, etc., which used to be done " — it is said down to 1748 — " without a Warrant of any Justice on suspicion of goods having been unlawfully come by and con- cealed in any of these fifteen houses." ^
(6) The Court of the Hundred
The Hierarchy of Courts that we find so well preserved in the Vale of Berkeley and at Taunton Deane, and less perfectly elsewhere, throws, we think, some light on the nature and origin of the various other Courts, up and down the country, that we find existing under the name of Hundred Courts, without any apparent connection with separate Courts of minor jurisdiction. When, in the fourteenth century, the Hundred Courts were merged in the County Courts of the Sheriffs — if that is what happened — those Hundred Courts which had already passed, as valuable Franchises, into private hands were not affected.^ Not infrequently, therefore, these continued to be held, and it may be that they went on without intermission into the eighteenth century ; sometimes
1 History and Survey of Kent, by Edward Hasted, 1797, vol. v. p. 107 ; Observations on Popular Antiquities, by John Brand, vol. i. p. 132 of 1841 edition; Kent's Capital, 1906. So, too, we read that, in Essex, "Lamboum Manor was held by service of the Ward Staff" (i.e. the Constable's or Watch- man's staff), which was carried into Conrt with quaint ceremonies (Ancient Manorial Customs in the County of Essex, by R. S. Cliarnock, 1870, pp. 17-22),
2 iea? Maturiorum, by W. Nelson, 1728, p. 190,
THE COURT OF THE HUNDRED 51
held, as of old, like that of Fawsley, " beneath the spreading branches of an enormous beech tree." ^ We are inclined to doubt, however, whether the few specimens of which we have particulars are all of the same species. In some cases the surviving Hundred Court appears simply to have outlived the Hierarchy, whilst often itself combining with the Court of its principal Manor. In other cases we may suspect that the term Hundred Court never has denoted the superior member of any Hierarchy of Courts, and that it represents much the same jurisdiction as was elsewhere exercised by the ordinary Manor Courts. In rare instances, again, a so-called Hundred Court is found among the various Courts held by Municipal Corporations in and for their Boroughs, with no wider juris- diction than a Borough Court.^ As such it will fall to be described in subsequent chapters.
What appears to be a common feature of the so-called Hundred Courts between 1689 and 1835 is their extreme attenuation of function. The majority of those that survived into the eighteenth century seem to have been little more than Courts for the trial of petty civil actions for debt and damages, and, as such, hardly come within the scope of Local Government as we have defined it. Other Hundred Courts, whilst retaining traces of the Court Baron side, appear
* This Hundred Court was thus held in Fawsley Park until the beginning of the eighteenth century, when it was removed to Everdon {History and Antiquities of Northamptonshire, by George Baker, 1822, vol. i. p. 238; Victoria CoiiiUy History of Northamptonshire, vol. i. 1902, p. 298).
2 Such was the Colchester "Hundred and Foreign Court." Such, too, was the "Hundred Court " of Kidwelly, in Carmarthenshire ; and such were those in the Cinque Ports (p. 378).
Less clear is the case of the Hundred Court of Gloucester, which continued, as its Minutes show, to be nominally held by adjournment weekly before the Mayor and the two Sheriffs of the City. What it did is not apparent, as the Minutes contain, after 1680, little more than a perpetual repetition of the names of the suitors, who were the owners of certain estates in Gloucestershire and Herefordshire, the jurisdiction over which had, somehow or another, come to belong to the Corporation of Gloucester. It swore in Constables (infra, p. 341). During the whole period there was held also the Court Leet of the City of Gloucester half-yearly, before the Steward of the two Sheriffs, the MS. Minutes of which, between 1784 and 1819, show it to be making presentments of the usual kind. Whether the "Hundred Court" of Gloucester was merely held by the Corporation by right of its ownership of a Hundred, just as the Corpora- tion of the City of London held the Bailiwick of Southwark ; or whether, as Mr. Adolphus Ballard has suggested, it was a Court of the owners of those lands within the County which had to maintain the city wall, we must leave for antic^uarian research.
52 THE COURT IN RUINS
chiefly as emasculated Courts Leet, appointing Constables and occasionally presenting nuisances. Our general impression is that these isolated Hundred Courts had once been un- differentiated Courts, dealing with all sorts of business indifferently, at one and the same Court, by one set of officers ; ^ and that the appearance of specialisation has resulted from the unevenness of the decay into which their various functions were falling. Pending further study of the records of the various Hundred Courts from the fourteenth to the nineteenth century, we can do no more than set forth such particulars as we have been able to glean of those which existed after 1689.
A remarkable case of survival of an ancient Hundred Court, detached from the Manor Courts within the Hundred, is that of Salford,^ in Lancashire, where we find the Steward of the Earl of Sefton, throughout the eighteenth, and down even to the middle of the nineteenth century, continuing to hold " the Court Leet, View of Frankpledge, and Court of Eecord of our Sovereign Lord the King for his Hundred or Wapentake of Salford." This Court evidently represented an ancient tribunal of which the jurisdiction extended nomin- ally to the whole of the modern Hundred of Salford — perhaps
1 Thn3 we are told that the " Hundred Court of Perveth " in Cardiganshire seems to have been held as a " Court Leet and Law Day " twice a year, and as a ' ' Court Baron " fortnightly ; it maintained the stocks and regulated the common, dealt with presentments and heard civil actions, and appointed both Constable and Reeve (prepositus or "major") — see Treatise on Copyholds hy C. Watkins, 4th edition, 1825, p. 503.
2 The archives of Salford, long neglected, scattered, and destroyed, are only now being collected and studied. Some records of the Lord's Court from 1597 to 1669 — apparently the active Court of the Seignorial Borough, comparable with that of Berkeley or Wotton — have lately been publislied {The Portmote, or Court Leet, Records of tlie Boi'ough or Town and Eoyal Manor of Salford, by J. G. de T. Mandley ; Chetham Society, vols. xlvi. and xlvii., 1902). Stray records of Salford Courts exist, both of eailier and of later date, some being preserved among the archives of the modern Salford Hundred Court of Record in Manchester, while those from 1828 to 1867 are in a thick, leather-bound volume now in the Salford Public Library. See also the particulars in House of Commons Return of Courts of Request, 1840 ; and Fifth Report of Royal Commission on Courts of Common Law, 1833 ; and the occasional reports in the newspapers, especially Manchester Guardian, 4th May 1833, 8th October 1836, 18tli October 1837 ; Manchester Chronicle, 4th May 1833 ; Manchester Times, 19th December 1835 ; and, on the whole subject, Mediceval Manchester and the Beginnings of Lancashire, by James Tait, 1904, p. 9. The Manchester Municipal Code, vol. v., 1899, gives the Acts and Orders in Council, 1868-1893, with a short memorandum on the history of the Court (pp. 267-268).
THE COURT OF THE HUNDRED 53
to the whole of the ancient " Salfordshire," — still described as " the King's Manor of the Hundred of Salford," of which the Earl of Sefton was not styled Lord but Steward, and which included some fifty parishes or townships, among them being Oldham, Bolton, Bury, and Manchester itself.^ Judging from •such fragmentary records as have survived, the Court of the Hundred of Salford was in fact once as all-embracing as the Court of the Hundred of Berkeley, having under it many other Courts ; perhaps even the Court of the Barony of Manchester itself, with its own subordinate Halimotes or Courts Baron of the separate Manors, which we may assume to have been undifferentiated Courts, or (in the case of Salford and Manchester at any rate), like Berkeley or Wotton, the Leets or Moots of favoured townships which seignorial Charters had made into so-called Boroughs. "We shall describe presently the vigorous life of the Manchester Court Leet. In the sixteenth and seventeenth centuries there had been another such Borough Court held at Salford itself, called the Portmote, presumably under the charter of the Earl of Chester and Lincoln of 1231. At some period between 1669 and 1828 — apparently between 1738 and 1800 — it seems to have coalesced with or been merged in the Hundred Court, which presumably had continued to exercise a wider jurisdiction.^ When we are again enabled to take
1 Koger the Poitevin retained the township of Salford in demesne when he enfeoffed under-tenants for the rest of his estate, a separation which had lasting consequences. "A stroke of a Norman baron's pen divorced Manchester and Salford in all but their devotions, and what he sundered no one has been able to bring together again, though they have long since ceased to be separated by green fields sloping down to a trout stream. A stranger who found himself in Deansgate, and wanted to know why two types of tram-car were ninning in what seemed to him a single city, would be mightily astonished if we told him that this was the doing of a foreign Count of the eleventh century. But so it is. It may be doubted whether it occurred to any citizen of Manchester resident in Broughton, wlio, during the recent deadlock between the two tramway committees, was turned out of the car at the city boundary, and had to walk several hundred yards in the rain to catch a Salford car, to curae the memory of Count Roger the Poitevin. He might have done this with some justice " (Medueval Matichester and tJic Beginnings of Lancashire, by James Tait, 1904, p. 10).
'^ We imagine that in many other cases the Court of the Hundred had become combined with that of its principal Manor. Thus, in the Hundred of Crewkerne in Somerset, which constituted a single "Lordship," extending over seven tithings, in the sixteenth, seventeenth, or eighteenth centuries, there was only one Court held, called the Hundred Court and Court Baron. At the principal sessions of this Court each year the Lord nominated not only the
54 THE COURT IN RUINS
up the story in 1828, it is not the Portmote of the Borough but the " Court Leet, View of Frankpledge, and Court of Record ... for the Hundred or Wapentake of Salford " that is being held in Salford. By this time the Court, so far as the area outside Salford Borough was concerned, had ceased to stand in any relation whatever to such Manor Courts as were still held within its ancient jurisdiction. In 1833, for instance, the Deputy Steward explained — probably on the authority of Joseph Eitson's learned book — that " the business of this Court solely applied to townships which had not the benefit of Courts Leet of their own. This being the Hundred Court Leet, it was their duty, therefore, to elect Constables in such cases . . . and in the event of proper persons not being returned by the townships to the Court, or where two lists were presented, they must elect such persons as would faithfully discharge the duties of the office." ^ We accordingly find the Salford Hundred Court in 1828 attended every half-year by the Constables, Deputy Constables,
Bailiff of the Hundred, but also the Portreeve of the little town of Crewkerne, who collected the profits of its fair and market. The suitors of the Coiut elected the Reeve, who was responsible for collecting tlie quit-rents and jSnes due from the tenants. The other sessions held during the year were known as the Three Weeks' Courts, and at thes-? the Tithingmen of the several districts were bound to attend, each bringing with them four of their neighbours, who were called "four posts," and who had to make presentments {The Book of the Ax£, by G. P. R. Pulman, 4th edition, 1875, pp. 247-250 ; quoting an MS. Survey of the Manor in 1599). Possibly a similar case is that of the ' ' Manor, Hundred, and Borough " of Bradford in Wiltshire, which we see holding its "Court Leet, View of Frankpledge, and Court Baron" in 1819, and appointing a Constable and an Assistant Constable for the Hundred, together with a factotum, who combined in himself "the five offices of Bailiff of the Hundred, Assistant Constable of the Hundred, Haywarden, Tithingman of the Old Town and Tithingman of the New Town of Bradford." It is reported to the Home Office that the new and zealous Constable has presented this pluralist for making false presentments to the Quarter Sessions, swearing that the roads were in good repair when they were not (Home Office Domestic State Papers in Public Record Office, No. 10, 13th April and 1st May 1819, and Januaiy 1820).
* Report of Proceedings of Salford Court Leet, Maiuhester Chronicle, 4th May 1833. This view Mas upheld by tlie Court of King's Bench in 1822, as against the inhabitants of the Township of Failsworth, who claimed to meet annually to elect their own Constable, but failed definitely to allege that they did this by prescription. The action of the Salford Court in appointing a Constable for this Township was confirmed (R. v. Lane, in Reports of Cases, etc. , by E. V. Barnewall and E. H. Alderson, 1823, vol. v. i)p. 488-489). Ritson had said that the Leet of a Hundred had jurisdiction only over such parts of the Hundred as were not within the jurisdiction of the Court Leet of any Manor {Jurisdiction of tlie Courts Leet, by J. Ritson, 3rd edition, 1816, p. 5).
THE COURT OF THE HUNDRED 55
and Assistant Constables of forty out of the fifty townships included within the Hundred; and enabling such nuisances in these townships as noxious smells and smoke from factories, obstructions of the highway, leaving roads unfenced in dangerous places, foul ditches, exposing unwholesome food for sale, and using false weights or measures to be presented and fined.^ The Court was always held at Salford. We gather that the jurymen were chosen from residents of the so-called " Borough " of Salford, not, as at Berkeley, from the various Manors of the Hundred ; the so-called Burgesses of Salford Borough were required to attend under penalty of sixpence, and inhabitants of the Borough not being Burgesses, under penalty of threepence ; new Burgesses had to be sworn in ; and it is evident that the principal business of the Court related to that Borough, for which, besides the officers of the Hundred, it appointed annually a Boroughreeve, two Constables, a Dog -muzzier, an Ale -taster. Bylaw -men and Inspectors of Flesh and Fish. The Hundred Court seems, in fact, to Ijave been the only active "police and sanitary authority " which the township of Salford enjoyed, until the rise, early in the nineteenth century, of a democratic Open Vestry, and the advent, in 1829, of a statutory body of Police or Street Commissioners ; and the fact that this Court appointed the Boroughreeve, gave it complete authority in what had already become a crowded and insanitary factory town.
Meanwhile there was being continuously held at Salford another series of Courts, from three weeks to three weeks, also
^ See, for instance, MS. Minutes, Salford Hundred Court Leet, 9th April 1828. We add two examples as typical: "The jurors of our Lord the King upon their oaths present that at Aucoats Bridge within Ardwick in the said Hundred of Salford ... is a manufactory for making sal ammoniac next to the King's common highway there leading from Manchester to Ashton . . . which emits great quantities of noisome and noxious fumes and vapours to the great nuisance of all the King's subjects passing and travelling there, by the default of Ebenezer Bi-eillatt. . . . Therefore he is in mercy. . . , And they amerce him in five shillings, and he is commanded to abate the same within two mouths under the pain of one hundred pounds" {Ihid. 9th April 1828). In 1833 the Deputy Constable of Pendleton said he had been requested by the respectable inhabitants of that townsliip to present a number of owners and occupiers of property abutting "the Black ditch . . . full to overflowing of refuse of dyehouses . . . causing an intolerable stench . . . the most intoler- able nuisance in the neighbourhood." The Jury thereuiK)n presented the offenders {ihld. April 1833).
56 THE COURT IN RUINS
^
purporting to be those of the Court of the Salford Hundred or Wapentake. Every third Thursday one or other of the three Deputy Stewards, whom the Earl of Sefton had appointed for this special purpose/ held his Court for the trial of actions for debt or damages under forty shillings within the wide limits of the Hundred. Over a thousand such actions a year were being dealt with by this Court in 1835,^ notwithstanding the con- current existence as petty debt tribunals of the Court Baron of Manchester and of statutory Courts of Eequests in and for Manchester, Oldham, Bury, and Eochdale.^
Amid the political agitation of 1829-32, the Eadicals began to chafe against the " self-elect " constitution of the Salford Hundred Court, by which they meant exclusively the half-yearly sessions for the appointment of Borough officers. They recalled the fact that the Earl of Sefton, as a Whig peer, had supported the Reform Bill ; and some of them urged him to be true to his faith in representative government, and to cause his Deputy Steward to leave off packing the Jury with Tories. Lord Sefton fell in with this view, and from 1835 onward the jury-
1 In 1835, at any rate, and for many years previously, these Deputy Stewards were the members of one of the leading firms of solicitors at Manchester, and quite distinct from the Deputy Steward, a barrister, whom the Earl appointed to hold the half-yearly Courts.
2 House of Commons Return of Courts of Request, 1840 ; Fifth Report of Royal Commision on Courts of Common Law, 1833, pp. 26a, 53a, 61a, 78a, 108a, 132a, 16, 106.
3 Somewhat akin to the position of the Salford Hundred Court was apparently that of Bradford at Wellington in Shropshire. This Court, held by the Duke of Cleveland under Royal Letters Patent of 1672, had once exercised full jurisdiction over the whole Hundred. By the nineteenth century, however, it had come to exercise what we may call Leet jurisdiction, and to appoint Constables only for those Manors within the Hundred which no longer held Courts of their own. It continued, however, to sit fortnightly for the preliminary stages of civil actions, and twice a year for the trial of causes arising anywhere within the Hundred. At the two general Courts (one of them being utilised for the appointment of Constables, etc.) it is said that the Constables of the Hundred had to attend (Fifth Report of Royal Commission on Courts of Common Law, 1833, pp. 106(r, 167a, 168a; House of Commons Return of Hundred Courts, 1839, p. 5 ; and of Courts of Request, 1840, pp. 132-133). Here, too, we may mention the Courtof the Hundred of Whitchurch (Dorset), which did not try civil suits, but appointed two Constables for the Hundred and Tithingmen for such of the nineteen Tithings \vithin the Hundred as did not have Courts of their own. When a resident in one of the Tithings for which a Manor Court was held had been appointed Constable for the Hundred by the Hundred Court, he appealed to the Court of King's Bench for exemption, on the plea that the Hundred Court had no right to appoint a resident "within a private Leet." But he was held liable to serve the Hundred (R. r. Genge, 1774, in Lrports of Cases, etc., hy Henry Cowper, 1783, pp. 13-17).
THE COURT OF THE HUNDRED $7
men at the half-yearly meetings were taken by lot from a list of the five hundred highest rated inhabitants.^ At the same time it became taken for granted that this Jury should accept, for the offices of Boroughreeve and Constables, the nominations made by the open Vestry Meeting.^ Under these circumstances there seems to have been no popular objection to the continu- ance of the formal participation of the Hundred Court in the Local Government of the Borough, and its half-yearly sessions accordingly went on being formally held, and its annual appoint- ments of Boroughreeve and other officers being made, down to 1867. No objection seems ever to have been made to the three-weekly trial of civil actions, under which form, by virtue of successive Acts of Parliament, and with only the slightest change of name, the ancient Court of the Wapentake or Hundred of Salford survives to this day.^
On the South Coast of England we find, right down to 1855, at Brighton, in Sussex, the Court of the Hundred of Whalesbone, or more properly, Wellesbourne. This was de- scribed as " the Leet or Lawday and View of Frankpledge," not for any one Manor but for the whole of the Hundred, the
1 The reformer who secured this change was one J. S. Ormerod, who was pre- sented with a gold snuff-box by his admirers. His reply contains the following passages, which we give as specimens of the feeling that prevailed. ' ' When I first thought of making an etfort to pi-eveut the Borough of Salford . . . from being ruled and governed in its Municipal constitution by men who had nothing to recommend them but superstition and bigoted Toryism ; when I found also that these men were chosen by a class of individuals who were self-elected from men possessing precisely the same politics as themselves ; when I found that these men were so ignorant as to boast of having been upon that Jury thirty years, some for more than twenty, others for twenty " — he determined to approach Lord Sefton, who made inquiry and directed his Deputy Steward to adopt a new plan (Manchester Times, 19th December 1835).
2 See, for instance, Manchester Guardian, 8th October 1836.
3 In 1846 its jurisdiction was preserved and enlarged, so as to enable it to deal with actions up to £50, by 9 and 10 Victoria, c. 126. In 1868 it was amalgamated with the Court of Record held by the Manchester Corporation under its Charter of 1838 and 17 and 18 Victoria, c. 84, and given the new title of the Salford Hundred Court of Record (31 and 32 Victoria, c. 130). The Earl of Sefton was thereby continued as High Steward, with a right to receive one-third of the fees arising from such cases as would have been within the jurisdiction of the old Salford Court, less a proportion of the expenses, but in no case to amount to less than two hundred guineas a year (sec. 35). The Boroughs of Oldham, Bolton, Heywood, and Rochdale successively got them- selves exempted from the jurisdiction of the Salford Hundred Court, in all matters in which the modem County Court has cognizance (Orders in Council of 30th December 1878, 16th Augiist 1886, and 15th March 1893, and the Oldham Corporation Act 1886, 49 and 50 Victoria, c. 117).
58 THE COURT IN RUINS
^
Lord or Steward of the Hundred being the Earl of Aber- gavenny. The Hundred of "Whalesbone comprised the parish of Brighthehnston (now Brighton) with the " Boroughs " or hamlets of Preston and Patcham — a much smaller area than the Hundred of Berkeley. "Within the Hundred there were, however, a number of reputed Manors and parcels of Manors, inextricably confused by partitions and alienations. Bright- helmston itself, in the days when its importance lay in its fishing, had had an important Manor Court of its own, of which the " ancient customs " had been of sufficient consequence to be investigated by a special Eoyal Commission of 1580.^ What Lord's Courts were held in the eighteenth century within the Hundred, and exactly for what purposes, we have been unable to ascertain.^ But the Hundred Court continued vigorously to exist, though, as we gather, principally, if not entirely, for the purpose of appointing annually at Easter the various officers of the Hundred : the High Constable, twelve Headboroughs or Assistant Constables,^ an Aleconner, and a Searcher and Sealer of Leather. It had apparently only one Jury, summoned by the Deputy Steward. It seems not to have dealt with actions for debt or damages. Of the history of this ancient jurisdiction during the eighteenth century we know nothing. "We find it after the Parliamentary election of 1825 coming into sharp conflict with the "Vestry, which refused to pass the High Constable's accounts. The items objected to related to the swearing in of special constables " during the late county election," and the payments to private persons for apprehending suspected criminals and vagrants.^ These items appeared, in accordance with the provisions of 18 George III. c, 19 (1779), in the Overseers' accounts, and as it had never become quite clear whether the consent of the "Vestry was necessary to their validity, the County Magistrates did not scruple to pass the Overseers' accounts containing the items
* History of Brighthelmston, by J. A. Erredge, 1862 ; Compendious History of Sussex, by M. A. Lower, 1870, vol. i. pp. 77-84 ; Sussex Archceological Colleciions, vol. ii. p. 38. We recur to this in the following chapter (p. 173).
2 There is evidence that Manorial Courts were held for property business ; see, for instance, the reference to the sun-ender of certain tenements by the Churchwardens of Brighthelmston " at a General Court Baron for the Manor of Allingworth" (MS. Vestry Minutes, Brighton, 3rd February 1806).
3 Brighton Herald, 9th April 1825.
* Ibid. 17th September 1825 and 29th July 1826.
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objected to.^ The friction between the Vestry and the Hundred Court continued ; and in 1828 the Vestry sent an elaborate memorial to the Earl of Abergavenny, as " the Lord of the Leet of the Hundred of Whalesbone," protesting against " the great, notorious, and crying abuse," that the outgoing High Constable packed the Jury summoned to elect his successor, and " the choice has consequently not been congenial to the wishes of the inhabitants." ^ It appears that the same little set of the Vicar, the County Justices resident in the town, and other Tory magnates had appeared as jurymen year after year, the Vicar acting always as Foreman. In answer to this memorial the Steward addressed to the Vestry a long and able description of the procedure of the Hundred Court. In future, he adds, " I shall require the High Constable to return to me ... a list of at least fifty of the most respectable inhabitants . . . and I shall advise that such list be made known to the public. . . . From this list I shall select by ballot 23 to form a Jury. ... If any reasonable and fair objection shall be stated in Court ... to any gentleman so summoned ... I shall not hesitate to dispense with the attendance of that juryman." ^ The result was that within a short time the Vestry and the High Constable became on excellent terms,* and the Hundred Court continued to be held for nearly another generation.^
^ j\lS. Minutes, Quarter Sessions, Sussex, 20th October 1825. Such a case had then recently occurred at the Cheshire Quarter Sessions, where the Constable of Ashton-under-Lyne had laid his accounts before the Vestry, and had an item disallowed (the expense of prosecuting a Dissenting Minister for preaching in the streets) ; two Justices had nevertheless allowed the Overseers' Accounts including this item. One out of the eight Overseers appealed to Quarter Sessions, which confirmed the allowance. The Court of King's Bench dismissed an appeal on the ground that it was not promoted by a majority of the Overseers, without, therefore, deciding that the action of the Justices had been wrong (R. v. Justices of Lancashire, in Reports of Cases, etc., by E. V. Baniewall and E. H. Alderson, 1823, vol. v. pp. 755-758).
^ Brighton Herald, 2nd February 1828.
3 MS. Vestry Minutes, Brighton, 25th January and 22nd February 1828.
* Ibid. 20th January 1831.
* For the so-called Hundreds of Sussex and Kent, and their relations to the ' ' Rapes "or " Lathes " of these Counties, see ' ' The Hundred of Eastbourne and its Six Boroughs," by Rev. William Hudson, Stissex Arckieological Collections, vol. xlii. p. 189, 1899, and "Liberties and Franchises within the Rape of Hastings," by W. D. Cooper, Sussex Archceological Collections, vol. vi., 1853, pp. 57-70. " In Sussex," we learn of the thirteenth century, " each Hundred seems to have had a Beadle, that is, a summoner, who was called an Alder- man," and who sometimes performed the suit of coui't due by the tenants of the Hundred at superior Courts {Histonj of English Law, by Sir F. Pollock and F. W. Maitland, 1895, vol. i. p. 545). At Swanborough, one of these
6o - THE COURT IN RUINS
^
The Hundred Courts which remaiued in private hands are scarcely to be distinguished from the Courts of Franchises, Liberties, Lordships, or Honours which had obtained exemption from the jurisdiction of, or concurrent jurisdiction with, the County Court. The Franchise or Liberty often included several Hundreds. In the " Seven Hundreds " of Cirencester in Gloucestershire, for instance, which had for five or six centuries enjoyed great exemptions from the Sheriff of the County, there continued to be held, in the eighteenth century, a three-weekly Court under the Steward of Earl Bathurst. Its business seems to have been exclusively the trial of small civil suits, personal actions, and debts under forty shillings. It was, we are told, regarded as " vexatious, dila- tory, and expensive," and so was superseded in 1792 by the effect of a Local Act, which created a Court of Requests, under seventy-five Commissioners, who took it in turn to sit as judges.^
In Kent the " Seven Hundreds " constituted a Franchise, having a Court of its own, held by the Bailiff. This Court
"Hundreds," which belongs to the Marquis of Abergavenny, and comprises several parishes, " Boroughs," and Manors, the ancient Court of the Hundred was held right down to our OAvn day. There attended the Constable and Alderman of the Hundred, the Headboroughs of the Parishes, and one or two dozen jurymen. Annoyances and defaults were presented and amerced, and civil suits under forty shillings were tried. The Jury presented persons to serve as Constable and Alderman of the Hundred (down to 1860) and Head- boroughs of the various parishes (down to 1842), of whom the Steward chose one ("The Hundred of Swanborough, " by J. Cooper, in Sussex ArcJueological Collections, vol. iv., October 1890). See also The Peramhulation of Kent, by W. Lambard, 1576, p. 21 ; Eobinson on Gavelkind, 5th edition, by C. J. Elton and H. J. H. Mackay, 1897, p. 211. Of the village of Lamberhurst we read that "a fair is held here yearly on 10th October for toys and pedlary, the jirofits of which the Portreeve of the Hundred of Milton receives of ancient custom, whicli officer executed within this Hundred the office of Clerk of the Market in all points whilst the Market was held, but it has been disused time out of mind" {History of Kent, by E. Hasted, 1797 to 1801, vol. vii. p. 53). For Tenterden Seven Hundreds, see History of the Weald of Kent, by R. Furley, 1871, vol. i. pp. 315-324, vol. ii. p. 555 ; History of the Weald of Kent, by T. D. W. Dearu, 1814, pp. 162, 233-245 ; House of Commons Return of Courts of Request, 1840.
^ History of Cirencester, by K. J. Beeeham, 1887, pp. 162-170. This Court of Requests was, like others, itself superseded after 1846 by the new County Courts. We may mention here (though we have no information as to their Courts) the analogous "Seven Hundreds" of Worcestershire, which had of old such extensive immunities ; the Hundreds of Windsor Forest, and, best known of all, the Chiltern Hundreds (Desborough, Stoke, and Bray in Buckinghamshire), of which the Stewardship — remaining, as it does, in the gift of the Chancellor of the Exchequer — has become a minor part of the machinery of Parliamentary procedure (see The Stewardship of the CliUrrn Hundreds, by F. S, Parry, a privately printed Treasury Memorandum of 1893 ;
THE COURT OF THE HUNDRED 6i
was held during the eighteenth century, and only discon- tinued after the whole Franchise had been sold by the Crown in 1817 to a private landowner. Within the Franchise, as we learn from a survey of the time of the Commonwealth, "there belongeth to each Hundred a Court Leet, where the Constables and Borsholders are elected, and all nuisances are amerced by the Steward and Jury, which Court is held when- ever the Lord or Steward may appoint." In six of these "Seven Hundreds" the Court used to be held by the Steward or Bailiff for the profit of the Crown. In the seventh, comprising Tenter- den, the chief town, the ownership of this so-called " royalty of the Court of the Bailiwick of the Seven Hundreds" was vested in the Mayor and twelve Jurats of the Municipal Cor- poration, by whom the Court was, in 1814, still being held.
Throughout the wide area of Yorkshire there were Courts in every "Wapentake, the division corresponding with the Hundred. We catch a glimpse of these Courts in 1641 in the notebook of a Yorkshire farmer. "The baily [Bailiff] of every Wapentake," he says, " is to keep a Court, which is called the Wapentake Court, Three Weeks' Court, or Sheriffs' Turn, where any petty cause or small trespass may be heard and ended once within three weeks." In at least two Wapen- takes these Courts continued to be held for more than two centuries much as Henry Best describes them ; some remnants lingering until the middle of the nineteenth century.^
In Cheshire there continued to be held an active Hundred Court for the Hundred of Wirral, which includes the town of Birkenhead. This was held on lease from the Crown until 1819, when it reverted to the Commissioners of Woods and Forests, by whom it was sold in 1820 for £500 to a Liverpool attorney. The Court continued for another generation to do an extensive business in petty debt cases, especially those arising in the rapidly growing town of Birkenhead.'
" The Ancient Hundreds of Buckinghamshire," by Morley Davies, in Home Counties Magazine, vol. vi. pp. 134-144 ; article by J. H. Ronnd in Victoria County History of Biickinghamshire, vol. i. 1905, p. 225).
^ Rural Economy in Yorkshire in I64I, by Henry Best, Surtees Society, vol. xxxiii., 1857, p. 91 ; House of Commons Return of Courts of Request, 1840, pp. 170-171.
2 Fifth Report of Royal Commission on Courts of Common Law, 1833 ; House of Commons Returns of Hundred Courts, 1839, and Courts of Request,
62 THE COURT IN RUINS
At least a score of other Hundred Courts continued to be held in difi'erent parts of the country throughout the eighteenth, aud down to the middle of the nineteenth, century/ principally as tribunals for the trial of small civil suits. We find them also, here and there, appointing not only Bailiffs and Constables for the Hundred or Liberty itself,^ but also Constables and Haywards for Manors within the Hundred, but not exercising any other functions of the mediaeval Courts. Similarly, there existed down to the same period a score of Courts of Honours, Lordships, or Liberties,* which were not styled Hundred Courts,
1840 ; History of the Hundred of Wirral, by W. Mortimer, 1847 ; Liverpool Courier, 9th April 1869.
1 Among these other surviving Hundred Courts the principal were those for the other Hundreds of Lancashire, Amounderness (held by a Steward for the Duchy itself), West Derby (held by the Earl of Sefton), Lonsdale (held by the Earl of Lonsdale) ; that held by the Duke of Richmond for " Richmondshire, " comprising five Wapentakes of the North Riding of Yorkshire ; those of Scarsdale and Chesterfield in Derbyshire, held by the Duke of Devonshire under a grant of 1631 ; that of Bucklow (Cheshire), held on lease from the Crown by the Egertons of Tatton ; that of Grumbald's Ash (Gloucestei-shire), held by the Duke of Beaufort under lease from the Crown down to 1835, until which date it appointed Constables and Haywards for the Manors within the Hundred, as well as tried petty debt cases ; those of Chew Magna (Somerset), which ceased to be held about 1836 ; Keynsham (Wiltshire), Portbury (Wiltshire), Whit- stone (Wiltshire), Offlow (Staffordshire), Durnford (Sussex) ; St. Briavel's (Gloucestershire), held by a Steward for the Crown ; Henbury (Gloucestershire), Thornbury (Gloucestershire) ; Huntingstone (Huntingdonshire), belonging to the Earl of Sandwich ; Penwith (Cornwall), Pain's Castle (Radnor), and the Duke of Beaufort's Court Baron for the Hundred of Crickhowell (Breconshire). Some particulars as to their activity in 1830-40 may be gathered from the Fifth Report of the Commission on Courts of Common Law, 1833, and the House of Commons Returns of Hundred Courts, 1839, and Courts of Request, 1840.
2 " Bailiffs and Constables of Hundreds are chosen annually at the Courts Leet for the several Hundreds and Liberties within the County " (A Guide to tlie Practice of the Court of Quarter Sessions for the County of Somerset, by J. Jesse, 1815, p. 20).
3 Such as the Nottinghamshire Peverel Court, held by Lord Middleton as Steward, and exercising jurisdiction, concurrently with the two County Courts, within the whole of the Counties of Nottinghamshire and Derbyshire except the Corporate towns ; Tutbury Honour Court, held by the Duke of Devonshire at Tutbury (Staffordshire) every three weeks for civil actions by residents within the Honour, which included parts of no fewer than six Counties and had its o\vn Coroner as well as its own Bailiff ( T?iree Centuries of Derbyshire Annals, by J. 0. Cox, pp. 71-84) ; the Court Baron of the Honour of Pontefract (York- shire), with jurisdiction over 350 townships, in a district of 600 square miles, and held twice a year each at Leeds, Bradford, and Huddersfield ; Allertonshire Liberty Court (Yorkshire), held by the Bishop of Ripon every three weeks, for the thirty-two townships within the Liberty ; the Court of the Liberty and Honour of Pickering Lythe (Yorkshire), held twice a year only ; Skipton Honour Court (Yorkshire), held under Letters Patent of 1307 by the Earl of Thanet as Lord of the Honour ; Whitby Strand Liberty Court, held by the Oholmleys as Bailiffs
THE COURT OF THE HUNDRED 63
but which exercised jurisdiction over areas within which there were at least several Manors, and which occasionally extended to hundreds of square miles. We cannot help regretting that so little examination has been made of the sixteenth, seven- teenth, and eighteenth century records of these Hundred Courts, and other Courts of wider jurisdiction than that of a Manor, from wliich additional light might be thrown on the relations of the difi'erent Courts of the ancient Hierarchy.^
of the Liberty, in succession to the Abbots of Whitby (Yorkshire) ; Kidwelly Honour or Lordship and Liberty Court, held by the Earl of Cawdor for three "commotes" of Carmarthenshire, comprising nineteen Manors and sixteen Parishes ; Perfeth Court Baron, also held by the Earl of Cawdor, as Lord of the Lordship ; the Court of Pleas for the Honour of Leicester, held by a steward for the Duchy of Lancaster, in some connection with the Courts Leet of nine Manors within the Honour ; the Ramsey Court of Pleas, held under ancient charters by the Lord of the Liberty of Ramsey (Huntingdonsliire) ; Ampthill Honour Court (Bedfordshire), not held for the trial of actions after the eighteenth century ; Bromfield and Yale Lordship Court (Denbighshire), held at the beginning of the eighteenth century by the Grosvenors as Lords of the Lordship ; and various other Welsh Lordship Courts, such as Chirk, which ceased to be held in consequence of an adverse judgment of the Court of King's Bench about 1827 (Williams v. Lord Bagot, Reports of Cases, by Barnewall and Cresswell, vol. iii. pp. 235, 772, etc.). With these should perhaps be classed the great Wakefield Court Baron held by the Lord of the extensive jurisdiction of Wakefield, which included, by 1835, a quarter of a million inhabitants, and exercised important functions in connection with weights and measures, as well as dealing with a couple of thousand civil actions annually. Some information about them in 1830-40 may be gathered from the House of Commons Returns of Hundred Courts, 1838, and Courts of Request, etc., 1840, and the Fifth Report of the Royal Commission on the Courts of Common Law, 1833.
1 We cannot pretend to deal with the various Forest Courts, held under picturesque names in districts which were technically royal forests. The special forest laws (as to which the various editions of John Manwood's Forest Laws, from 1598 to 1665, were authoritative) apparently ceased to be enforced after the Commomvealth, the Act " for the limitation of Forests," 16 Charles L c. 16 (1640), having practically brought the old system to an end. Some attempt was made to revive the Courts on the Restoration ; but we do not actually know that either the six -weekly "Court of Attachment" or "Woodmote," the "Court of Regard" every third year, or the "Court of Justice Seat" was held after the Revolution (Life of Lord Justice Guilford, by the Hon. Roger North, 1808, vol. i. p. 75 ; The Fairal Life of England, by William Howitt. 1838, vol. ii. p. 59). But Courts continued to be held, sometimes under the ancient forest name of "Swainmote" or "Swanimote," sometimes under that of Halmote Court, in various forest districts, especially in the Forest of Dean, though they seem to have decayed rapidly after the first quarter of the eighteenth century, and to have become often formal only. To this day, however, in the Forest of Dean, the Steward of the Crown holds his Court annually at the " Speech House," wearing a cocked hat, and equipped with a sword. We may yet read The Rights of His Majesty's Forest Asserted, in a Charge given at a Swanimote Court held . . . before the Verderers of the Forest of Windsor, 1717, by Nathaniel Boothe^ Steward of the Court, 1719; *nd
64 THE COURT IN RUINS
(c) Tht Court of the Manor
The Court of the Hundred, where it continued into the eighteenth century, retained, as we have seen, little beyond its function as a tribunal for petty actions of debt, combining with this, in a few instances, the more or less formal appoint- ment of Constables and other officers. This was not the case with the innumerable Manor Courts that existed in 1689, many of which continued, right into the nineteenth century, to be active local authorities, managing the commonfields aud pastures, suppressing nuisances, providing the police, and trying cases of debt and trespass in the little communities over which they had jurisdiction.^ It is, in fact, the existence of the humble Court of the Manor, much more than that of the enigmatical and pretentious Courts of the Hundred, Honour, Barony, or Forest, that compels us to include the Lord's Court in our survey of English Local Government between 1689 and 1835.
It is significant that this Court of the Manor, as we find
"The Rolls of the Court of Attachment of the Royal Forest of Walthara" between 1713 and 1848 are printed as vol. v. of the Report of the Epping Forest Commissioners, 1873. See Select Fleas of the Forest, by G. J. Turner (Selden Society, 1901) ; Hemarks on Forest Scenery, by W. Gilpin, 1791, with a good list of Forests ; Historical Inquiries concerning Forests and Forest Laws, by Percival Lewis, 1811 ; the statutes of 1817 and 1829 ; an able article in Edinburgh Review, April 1902 ; Ihe Royal Forests of England, by J. C. Cox, 1905 ; and A History of English Law, by Prof. W. S. Holdsworth, 1903, pp. 340-352. Also the various reports of the Commissioners of Woods, Forests, and Land Revenues, especially those of 1788 and 1853 ; that of the House of Commons Committees on the Forest of Dean, 1874, and on vhe Woods and Forests, 1889 and 1890 ; Report on the Forest of Dean, by H. C. Hill, published by the Stationery Office, 19th July 1887 ; The Forest of Dean, by H. G. Nicholls, 1858 ; an exceptionally well-informed article in The English Historical Review, vol. xxi. , 1906, pp. 445-459 ; The History of the Forest of Dean in Gloucestershire, by John Nisbet ; History of Knareshorough, by Eli Hargrove, 1798 ; History of the Foi-est of Rossendaie, by T. Newbigging, 1868 ; The Honour and Forest of Piclcering, by R. B. Turton (North Riding Record Society, N.S., vols, i.-iii., 1894-96); The Forest of Essex, by W. R. Fisher, 1887 ; Annals of tlie Ancient Royal Forest of Exmoor, by E. J. Rawle, 1893 ; The Great Forest of Brecknock, by John Lloyd, 1905 ; vol. ii. of the Victoria County History of Hampshire, 1905, pp. 409-470, for the New Forest; and chap, iv., "Forest Police," in The History of Police in England, by Captain Melville Lee.
1 "Every Manor," it was said, "is a little Commonwealth whereof the tenants are the members, the land the body, and the Lord the head" {The Surveyor's Dialogue, by John Norden, 4th edition, 1738, p. 44).
THE COURT OF THE MANOR 65
it existing after 1689 from one end of England to the other, is an Undiflferentiated Court. Whatever it may be termed by the Steward, it combines and confuses in its actual procedure and work the attributes which the sixteenth-century lawyer ascribed to his three or four distinct tribunals. In the vast majority of the Manors that we have examined, we see the Steward giving notice, once or twice a year, that he would hold, not the various separate Courts given in the text-books, but, under one name or other, simply the Lord's Court. This might be held in the open air, beneath some aged tree;"^ it might, as at Selborne in Hampshire, be in an ancient barn of the Manor farm ; ^ it might be at the Lord's Manor-house (perhaps for this reason in Southern England often called a Court) ; ^ or occasionally in some old building in the village known as the Court House,* or even, in a few cases, the Town Hall, or Gild Hall.^ It was a common practice to " open the Court " at the ancient place and then instantly to adjourn to the largest room of the village inn.^ Tliere would be a customary date for holding the Court, which would be fseldom departed from — it might be soon after Michaelmas or Easter ; it might, as at Coggeshall in Essex, be on Whit Monday ; "^ it might, as at Andover in Hampshire, be "the Sunday next before St. Michael " ; ^ in many of the Manors of the Bishop of Winchester we read of " the Turn of St. Martin," or " the
^ Treatise on Copyholds, by Charles Watkiiis, 4th edition, 1825, vol. ii. p. 9. At Newton (Norfolk), in 1531, it was "under the oak " (2%e Manor and Manorial Records, by N. J. Hone, 1906, p. 132).
2 Practical Treatise on Copyhold Tennre, by R. B. Fisher, 1794, p. 59.
3 Or " place, " which maybe from "placitum" {Treatise on Copyholds, by Charles Watkins, 4th edition, 1825, vol. ii. p. 11). Mr. Seebohm connects "Conrt" with "curtis," which. is "so often applied to the later Manor-house" ; and with the " cohortes " around a Roman villa {English Village Community, by F. Seebohm, 1883, p. 263),
* So at Epworth in Lincolnshire (see History and Topography of the Isle of Axholme, by Rev. W. B. Stonehouse, 1839, pp. 143-149).
* At Coggeshall in Essex the Court was always held at the Shambles in the market-place [Treatise on Copyholds, by C. Watkius, 4th edition, 1825, vol. ii. p. 574). At Bungay it was held "in the Corn Cross," until the demolition of that building in 1810 {History of Suffolk, by Rev. A. Suckling, 1846, p. 129).
" Treatise on Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. p. 9. At Yardley Hastings, in Northamptonshire, the Court was always formally opened in an ancient hall in the village, and then adjourned to the village inn {Practical Treatise on Copyhold Tentire, by John Scriven, 1816, p. 5).
^ Treatise on Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. p. 574.
* Finna Burgi, by Thos. Madox, 1726, p. 210; Treatise on Copyholds, by Charles Watkins, 4th edition, 1825, vol. ii. p. 477.
VOL. II. PT. I F
66 THE COURT IN RUINS
Turn of Hock " ; ^ it might even be, as in a Manor near Eocbford, Essex, "at cockcrowing, before the day was well light." ^ At such a Court — in different Manors called in- differently the View of Frankpledge, the Court Baron ,^ the Turn, the Court Leet, the Lawday, the Leet, or simply the Great Court or the Little Court — there would attend most of the men of the village, whether freeholders or copyholders, leaseholders or cottagers. In Manor after Manor we find evidence that some sort of roll of names was read over, and defaulters fined. Thus at Standon in Staffordshire, during the eighteenth century, the fine for non-attendance was a shilling for freeholders, sixpence for leaseholders and other tenants of the Manor, and twopence for cottagers.^ Elsewhere it often seems to have been only the freehold or copyhold tenants of the Manor whose attendance was insisted on. At Braintree in 1653 the tenants who did not appear were severally fined three shillings; in 1665, freeholders two shillings and copy- holders one shilling ; whilst in 1732 the absent freeholders had to pay only a shilling each and the copyholders half a crown.® At Devonport, about 1800, we read that "all the tenants are obliged to attend, or be amerced two and sixpence." ^
1 See MS. Manor Rolls, Farnham, Surrey, 8th October 1717, for one of many examples.
2 ' ' The Honour of Rayleigh in Essex . . . hath a Custom Court kept yearly the Wednesday next after St. Michael's Day ; the Court is kept in the night and without light but as the sky gives, at a little hill without the town called the King's Hill, where the Steward writes only with coals and not \AW\ ink. And many men and Manors of great worth hold of the same, and do suit unto this strange Court, where the Steward calls them with as low a voice as possible he may ; giving no notice when he goes to the Hill to keep the same Court ; and he that attends not is deeply amerced if the Steward will'' {The Surveyor's Dialogiie, by John Norden, 4th edition, 1738, p. 161). How much truth and how much significance there was in this account of what was apparently nick- named "the Lawless Court" we cannot say (see Law Dictionary, by John Cowell, 1727, under this appellation ; Treatise on Copyholds, by Charles Watkins, 4th edition, 1825, vol. ii. p. 9).
3 Court Baron is clearly "curia baronis," and the meaning of "curia baronis " is significantly explained by the variant "curia nobilis viri R.R." that we find as the title of tlie Braintree Court in the earliest roll (1616). It was simply the Lord's Court. There seems to have been every variety in the name borne by the Court in different Manors, and we can trace little connection, in the period 1689-1835, between these variations of name and the equally great variations in function.
* The History of Standon, by Edward Salt, 1888. ' MS. Manor Rolls, Braintree (Essex).
" The, Plymouth Dock Ouide, p. 28 {circa 1800). At Leamington the Earl of Aylesford, as Lord of the Manor, revived the Lord's Court in that Mauor in
THE COURT OF THE MANOR 67
An indisputable element in the Lord's Court, and the primum mobile upon which all its action depended, was the Jury or Homage, the sample of the inhabitants by which the community as a whole was represented. The Jury was always formally summoned by the Bailiff or Beadle, at the command of the Steward, but exactly in what way the im- portant task of selection was performed is seldom to be dis- covered. It may be that, in some cases, the tenants of the Manor were supposed to be taken haphazard in rotation. In some Manors, as we have reason to believe, the choice was controlled by the Steward. In the Manor of Dymock, Gloucestershire, by ancient custom recorded in 1565 and 1657, the Steward chose one "free-bencher" and the tenants another, these two jointly selecting the twelve tenants who were to form "the Lord's Homage," In case of their dis- agreement, the Steward decided.^ On the other hand, a learned lawyer writes in 1825 that, "So far at least as my own experience extends, the Steward of the Court is totally ignorant even of the names of the jurors until the delivery to him by the Bailiff of the persons summoned as jurymen, together with the resiant roll, or names of those who are liable to perform suit to the Lord at the particular Court." ^
The Jury was sometimes appointed to serve until the holding of the next Court, and sometimes appointed, sworn, and discharged at each Court.^ The number varied, twelve
1828, after ninety years' desuetude. " Over 900 householders answered to their names and paid their fines" {Complete History of Royal Leamington Spa, by T. H. B. Dudley, 1896-97, pp. 188-89). A Steward who holds Courts in many Manors in the Southern Counties informed us (1906) that when he first took in this duty he frequently found the villagers swarming to the Court, though it was called a Court Baron, and they were neither freeholders nor copyholdei-s. These residents presented themselves as of old, believing vaguely that they had some right or were under some obligation to attend ; and they were sometimes much aggrieved at being told that they had no part in the ceremony.
1 Treatise on Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. pp. 487-491.
2 Treatise on Copyholds, by John Scriven, 2nd edition, 1823, vol. ii. p. 845.
3 "The Jurymen," says Ritson, "in some Manors continue in office for a whole year, while in others they are sworn and discharged in the course of the day" {Jurisdiction of the Courts Lett, by Joseph Ritson, 1816, p. 9). "In some Manors it is not the practice to summon a fresh Jury whenever a Court is held, but the same tenants are summoned for successive Courts, vacancies in the list being filled from time to time by the Steward, or by the permanent Foreman and the Steward togetlier " {Law of Copyholds, by C. I. Elton and H. J. H. Mackay, 2nd edition, 1893, pp. 197-198).
68 THE CO UR T IN R UINS
or more being the most frequent. Here again, whilst we find some of tlie names used by the lawj'ers, we seek in vain for some of their distinctions. In the Court at Braintree the well-kept records make it clear that there was only one Jury, which consisted, as the names reveal, of the ordinary house- holders of the little town ; and which made all the present- ments of the Court. In the Court of the "Honour and Manor" of Hampton Court, between 1800 and 1808, we find the twelve to fourteen jurors described as " the jurors as well for the Court Leet as for the Court Baron and Customary Court " — there being, in fact, only one Jury for what was, in practice, a single undifferentiated Court. So, in many scores of Manors in ecclesiastical hands, within the dioceses of Canterbury, London, and Winchester, of which we have been permitted to consult the Manor Rolls, we find that the Jury was sworn as the Jury of the King and the Lord; though where business affecting property had to be done it was frequently styled also the Homage. On the other hand, at Epworth, in Lincolnshire, there were, in 1776 at any rate, clearly two Juries, but these were not called the Homage and the Leet Jury respectively; nor did their several functions correspond with the lawyer's distinctions. They are referred to as the Grand Jury and the Copyhold Jury. The " Grand Jury and Inquest of the Manor" — termed in 1587 "inquisitio magna," when thirty persons were sworn — apparently dealt indifferently with pleas of debt, successions to property, pre- sentments of such public nuisances as short weight in bread, presentments of such common misdemeanours as assaults and aflfrays, and presentments (in 1631) of such Manorial offences as " trespasses in the sown fields " by wandering beasts. "The Grand Jury," it was solemnly recorded in 1776, "may settle disputes on freehold lands, as to the boundaries, etc., and the Copyhold Jury may do the same on copyhold lands. The Grand Jury may make Bylaws, and compel observance of the same." We gather that " offences within the Manor," including public nuisances, were presented indifferently by either Jury.^
' "Notes from the Court Rolls of the Manor of Epworth," by Charles Jackson, The Reliquary, vol. xxiii., 1883, pp. 44-48, 89-92, and 174-175 ; History and Topography of (he Isle of Axhohne, by Rev. W. B. Stonehouse, 1839, pp. 143-149. On the other hand, we find the terra Grand Jury used
THE COURT OF THE MANOR 69
The presentments of the Jury, when accepted by the Steward, and (in the case of amercements) " affeered " or revised by the afPeerors, became the findings of the Court. These presentments appear to have comprised indifferently the recital of the customs of the Manor, the making of new By-laws, the appointment of officers, the verdicts in the civil actions tried, and the conviction and the fining of offenders, whether in respect of public nuisances, Manorial defaults, breaches of By-laws, or such misdemeanours as assaults, affrays, and even petty larcenies. These presentments were made by the Jury, either " on their own view and knowledge," or upon the testimony of one or other of the officers of the Court or other witnesses ; ^ or, in civil suits, after hearing the parties to the suits, and, it may be, their counsel and witnesses. We imagine that, in many instances, the presentments were dis- cussed by the Jury, then and there, in open Court, and written down by the most practised scribe among them. On the other hand, there is reason to believe that these pre- sentments were sometimes drawn up and signed by the Jury- men in a separate meeting. " For the most part," writes an experienced lawyer at the end of the eighteenth century, " they generally come ready prepared with them, and deliver a copy of them signed by the several tenants to the Stevrard to enter in the Court rolls " ^ — a duty which he sometimes neglected to perform.
The officers of the Court might be few or numerous, and they differed from Manor to Manor, in their numbers and in their titles, far more according to the size and character of the community than with any relation to the particular name of the Court. The Lord's Steward summoned and presided over the Court whatever it was called. The Bailiff, though this title is sometimes used as synonymous with Eeeve or Greave, was always the Lord's man, selected by the Steward. The residents or homagers whose presence was specially required as jurymen were warned to attend by the
simply for a Court Leet Jury ; as, for instauce, iu Jurisdiction of the Courts Led, by J. Ritson, 3rd edition, 1816, p. 3.
* Where tlie Jury "are discharged the same day," says Ritson, "it should seem necessarj' for them to proceed chiefly upon evidence ; and, indeed, there is generally, if not always, a proclamation for that purpose " {Jurisdiction of the Coairts Leet, by J. Ritson, 3rd edition, 1816, p. 24).
2 Treatise on CopyJtolds, by C. Watkiiis, 4tli edition, 1825, vol. ii. p. 383,
70 THE COURT IN RUINS
Bailiff whether the Court was styled Court Baron or Court T^et. We find Reeves, Hay wards, and Herdsmen appointed at the same Court, whatever its appellation, as Constables, Ale-tasters, and Scavengers. We find Courts calling themselves nothing but Courts Baron nevertheless appointing Head- boroughs, Constables, Ale-tasters, and Scavengers ; making presentments on all sorts of subjects ; and seizing light weights and short measures,^ We find Courts calling themselves nothing but Courts Leet nevertheless appointing Eeeves and Haywards and a variety of functionaries whose business it was to manage the common pasture. It is extremely rare to find any definite salary assigned to any of these officers^ — the Court had, indeed, normally no Corporate funds out of which such a salary could be paid — but we suspect that some small provision for the remuneration of some of them was not in- frequent. Thus we read of " Constable's acres," " Reevewick lands," and " Beadlewick lands," which were either held by the tenure of service in turn as Constable or as Eeeve and Beadle respectively, or else were enjoyed for the year by those who served in those offices.^ Sometimes there was a particular profitable right attached to one of the oifices, such as the profits of the pound, the forfeitures of swine found unringed or at large, or the money penalties incurred for breach of stint of common. More usually, however, the officers found such remuneration as they got in their power to exact small customary fees. The profitable character of the Steward's fees is often alluded to. " Court-keeping " on behalf of Lords of Manors, or as dej)uty for their Stewards, was, at any rate in the seventeenth century, one of the recognised means of
* As, for instance, at Torquay ; sco Hidory of Toi-qitay, by J. T. "White, 1878, p. 134.
^ The leading instance of a Lord's Court having salaried officers, and, down to 1780, levying its own rate for their jiaynient, is that of Manchester, which we subsequently describe in detail (p. 99). In the Manors of Stepney and Hackney, in 1622, then almost entirely rural in character, the Reeve was in each case entitled to a salary of £2 : 13 : 4 and £3:6:8, together with a piece of cloth for a coat (Treatise on Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. pp. 508-533).
3 Th^ Village Community, by G. L. Gomme, 1890, pp. 274-275. We note that in the fourteenth century, iu Forucett Manor, there were 20 acres designated "Reeveship lands," and 15 acres " Jlessorship lands," which were charged with an annual burden of two shillings per acre for the benefit of the two tenants serving those offices {The Economic Development of a Norfolk Ma7ior, 1086- 1565, by F. G. Davenport, 1906, pp. 50-51).
THE COURT OF THE MANOR 71
livelihood for the young barrister.^ But there were evidently other fees. The Bailiff or Beadle of the Court might, for instance, get a fee for administering the oath to persons newly appointed, " He had been sworn in as a Pig-ringer by the Court Leet, and paid fourpence for his oath," deposed one of the parties to a settlement case in 1792, when the judges held that this office was one " of great antiquity and serviceable to the parish." ^ Whether the Court of the Manor, calling itself either Court Leet or Court Baron, had any legal authority to levy any compulsory tax, was never decided by the Superior Courts. But it was not uncommon for the Jury, in order to provide the Eeeve or Hayward or Fieldsmen with the small sums necessary to effect petty improvements in the commonfields, or to carry out certain necessary repairs, to order that a levy of a few pence or a few shillings per beast should be made, the amount being collected from all the users of the common lands by the officers concerned.^ We occasionally see this simple financial transaction expanding into a system of buying and selling " stints," or rights of common, either for the common benefit or for the convenience of individual owners. We may even find instances (as at Great Tew) of the levy being made, not per beast, but on the annual value of all the tenements, like the Poor Eate.*
.The Undifferentiated Court, as it existed between 1689 and 1835, might conceivably be the result of a gradual co- alescence and merging of previously existing separate Courts ; or it might, as we are inclined to believe, be a continuance of
1 1 James I. c. 5 (1603) ; see the Autobiography of the Hon. Roger North, edited by Rev. A. Jessopp, 1887, for a good description of " court-keepiiig " about 1680. " Some few years ago there was a design of bringing a Bill into Parliament for regulating the fees of Stewards of Manors, but the Legislature thought it much too delicate a matter to interfere in, and the design was dropped " {^Treatise on Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. p. 454).
2 R. V. Inhabitants of Whittlesey, 4 J.R. 807 ; Fenland Notes and Queries, vol. i. p. 253. In London, in the nineteenth century, the unfortunate house- holder comj)elled by a surviving Manorial Court to serve as Constable was some- times mulcted of half a crown by the officer of the Court who administered the oath (Second Report on the State of the Police hi the Metropolis, 1817, p. 394).
3 To cite one example out of many, the Court of Hitchin in 1819 levied fifteen pence per beast (English Village Community, by F. Seebohm, 1883, pp. 443-453).
* In a few exceptional cases, of which we shall subsequently describe JIanchestcr and Lewes as the chief, this levy by the Lord's Court became a substantial rate for the purposes of urban government (pp. 103, 173).
7» THE COURT IN RUINS
a simple tribunal, in which the process of differentiation had not yet begun. But it is not uncommon to find, where two or more sessions of the Court are held each year, a certain difference made between the business done at these several occasions. What we have called the property business — the admissions and surrenders, and the receipt of fines and heriots — took place, if required, apparently at every Court. The trial of civil actions took place, apparently, from three weeks to three weeks, or whenever the Court was held, a Jury being summoned only when required. The appointment of officers, whether Keeve^ Beadle, or Hay ward on the one hand, or Constable, Ale-taster, or Scavenger on the other, occurred only once a year, normally at the Michaelmas Court. Sometimes the presentment of nuisances and other specifically Court Leet business is confined to the same occasion, which is often designated as the Lawday,^ the View of Frankpledge, or the Leet.^ In the Manor of Wistow (Yorkshire) the particular Sessions of the Lord's Court that was held at Lammas was " the fearing {i.e. affeering) Court," at which apparently the amercements of offenders were assessed.^ During the eighteenth century we meet with a certain number of cases in which the Steward has plainly attempted to distinguish between the busi- ness done by this Court. Thus at Braintree, from 1709 onwards, the Steward tries to make a distinction in his records between the Court Leet on the one hand and the Court Baron and Customary Court on the other. There is still only one Court held, and only one Jury summoned. But the appointment of Constables and other officers, together with the presentments of nuisances, are entered in the book under the heading " Visus franc plegum cur." ; whilst a separate heading on the same
1 Tims the customs of the Manor of "VVor[)lesdon in Surrey prescribed that Courts were to bo held twice a year, once with a Lawday {Law of Copyholds, by Chas. Watkins, 4th edition, 1825, vol. ii. p. 559). At Braunton in Devon- shire there used to be "Monthly Courts" for dealing with civil suits, and four times a year a " Law Court," at one of which a Reeve, Ale-tasters, Pound-keeper, Crier, Beadle, and " Gatewardens " (perhaps from gate, meaning a lane) were appointed ("The Customs of the Manors of Braunton," by R. Dyniond, in Trans- actions of the Devon Association, vol. xx., 1888, pp. 254-303).
2 In the Manor of AVimbledon (Surrey) the Easter Court was the one desig- nated as the Leet, when the Headboronghs of the several tithings had to attend {Law of Copyholds, by C. Watkins, 4th edition, 1825, vol. ii. pp. 554-556).
3 History of the Parishes of Sherhurn and Cawood, by W. AVheater, 1882, p. 281.
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page, " Modo d. Cur. Baron et Customar," precedes the formal presentment and fining of absent freehold and copyhold tenants of the Manor, the admissions of new tenants, and the recording of property transfers.^ In the Manor of Hitchin, where the rolls of 1471 describe the Court simply as " the View of Frankpledge, with the Court held there," those between 1721 and 1819 reveal a Court which styles itself Court Leet and Court Baron, but having only one Jury, called the Homage, doing all the business that was done — appointing Herdsmen and " Pit -keepers," regulating the common herd and the enjoyment of the common pasturage, levying a rate of fifteenpence per beast, and presenting dangerous footpaths and other nuisances.^ At the beginning of the nineteenth century the language of the entries changes. We hear not only of the Homage, but of "jurors for our Lord the King," who make presentments of encroachments, digging gravel on the common, and other offences for which fines are imposed and made payable to " the Lord of the Leet." But this same Jury is presently found equally presenting the deaths of tenants of the Manor and the admission of new ones. From 1819 onward the proceedings become still more differentiated according to the lawyers' formula. The Court — still held as one Court only — is now styled " the Court of the View of Frankpledge of our Sovereign Lord the King with the General Court Baron of W. W., Esquire." There are both "jurors of our Lord the King" and "the Homage of this Court." They jointly declare "the
* This is the coniuion form adopted by the Stewards of some scores of Manors in the South of England belonging to Bishops and chapters, of which, by the kind permission of the Ecclesiastical Commissioners, we have been enabled to examine the rolls. But these Stewards have usually grouped, along with the Leet presentments of the "Jury of the King and of the Lord," other present- ments which clearly form part of the Court Baron business, such as those of the deaths of freeholders of the Manor and of encroachments on the Lord's waste — confining those under the heading "Modod. Cur. Baron" to other property business. We may here note that these ecclesiastical Manor rolls were mostly kept in Latin down to the middle of the eighteenth century, or several genera- tions later than was elsewhere customary.
2 MS. Manor Rolls, Hitchin (Herts), for 1470-1471, in Public Record Office (portfolio 177, No. 60); and those from 1721 onward, in possession of the Commissioners of Woods and Forests, to wliom we are indebted for the privilege of inspection. The roll for 1819 is printed in The English Village Community, by F. Seebohm, 1883, pp. 443-453 ; see also History of Hertfordshire, by N. Salmon, 1728, p. 162; The Royal Manor of Hitchin,h^ 'WeniwovihlAnyshc, 1906.
74 THE COURT IN RUINS
boundaries, extent, rights, jurisdiction, and customs of the said Manor." The Lord, they assert, has " Court Leet and View of Frankpledge " twice a year, and also " General and Special Courts Baron and Customary Courts at his will." The Court Leet appoints two Constables, six Headboroughs, two Aleconners, two Leather Searchers and Sealers, and one Bellman, who acts also as Watchman and Crier. The Leet Jury presents various nuisances. The Homage has its own presentments about the customs relating to property, the freedom of the market from tolls, and the obligation of the Lord to provide the pound and stocks. Can we believe that this new and sudden elaboration of what had, for three centuries at least, been a single undifferentiated Court, with a single Jury, indicates anything more than the historical knowledge and antiquarian zeal of a new Steward of the Manor ?
Whatever was the Court, its business was, it is clear, of the most varied kind. Thus, in the little town of Brain tree in Essex, which we have already described as being ruled by an enigmatical Select Vestry, or " Four and Twenty," ^ we see the Lord's Court, between 1616 and 1813, appointing Constables, Ale-tasters, Fish and Flesh Tasters, and Leather Searchers ; presenting nuisances as distinguished from Manorial defaults ; enforcing the Assizes of Bread and Ale ; punishing the usual market offences; acting down to 1713 in conjunction with the Company of the Twenty-four that we have already described as the Parish Vestry ; and even levying rates on the inhabitants for repairing the common pump and scavenging the streets. At the same meetings of the Court we have the admission of new tenants of the Manor, the transfer of properties on death or alienation, and, by the same Jury, the presentment of encroachments on the Lord's waste, and the defaults of tenants in not scouring ditches. In the little Manor of Standon, for which the rolls exist from 1338 to 1773, we see the Lord's Court, down to the first quarter of the eighteenth century at any rate, equally combining both Court Baron and Court Leet business — making presentments of highway and other nuisances and forbidding the harbouring of vagrants — and also dealing with admissions, heriots, convey-
1 Enfjlish Local Oovemment, Vol. I. Tlie Parish' and the County.
THE COURT OF THE MANOR 75
ances, encroachments on the waste, deftiults of tenants, and other property matters.^ So in the interesting Lord's Court at Epworth that we have already mentioned, the " customs " elaborately recorded in 1776 reveal a tribunal at which By- laws were made, nuisances were presented, the common pasturage was regulated, officers were appointed, offenders were fined, new tenants of the Manor were admitted, the fines for copyhold alienations were fixed, and civil suits between tenants of the Manor were determined.^ At Devonport, as we are told by a local chronicler about 1800,^ the Lord's Court " has the privilege of Court Leet and Court Baron, which is annually held some time in the month of October. ... It has the power of fines and even of imprisonment for small offences ; and all horses, cattle, implements, and utensils of any kind which shall appear to a Coroner's Jury to have occasioned the death of any person within the Manor, be it of whatever kind or value, are liable to be forfeited to the Lord of the Manor." A less familiar function of the Lord's Court, and one that we suspect was, even in 1689, still of greater public interest to every inhabitant of the village than those hitherto described, was the management of the agricultural operations of the little community. In nearly every Manor there were common pastures; sometimes woods into which the tenants of the Manor might send their pigs ; sometimes valuable hay-meadows shared by lot or by a primitive scramble ; more frequently large open " commons " of coarse herbage ; and invariably roadside strips and odds and ends of unoccupied land forming part of " the Lord's waste." The simple acts of administration which the enjoyment of these common rights involved formed part of the business of every Manor Court. We see appointed
1 History of Standon, by Edward Salt, 1888.
2 History and Topography of the Isle ofAxholme, by Rev. W. B. Stonehouse, 1839, pp. 143-149.
3 The Plymoulh Dock Guide {circa 1800), p. 28. The right of the Lord of the Manor to deodand, or forfeiture of any article causing the death of a human being, was not abolished until 1846 (9 and 10 Victoria, c. 62 ; see Hie King's Coroner, by R. H. Wellington, 1905, p. 169). Besides knives and bludgeons, horses and cattle, the wheel of a vehicle and a mill- wheel have been thus forfeited. In 1841, after an accident on the Great Western Railway at Sonning, a railway carriage is said to have been taken by the Lord of the Manor as a deodand. In 1840 the deodand was valued by the Jury at £2000 in the case of an accident on the London and Birmingham Railway {Monthly Law Magazine, vol. x., 1841, p. 15).
76 THE COURT IN RUINS
such officers as Herdsmen/ to drive out and home, and watch over, the pigs, sheep or cattle, horses or asses that the individual proprietors contributed to the common herd or flock. There are Common Drivers ^ to see that only the cattle and horses of the tenants of the Manor use the commons, and these only up to the permitted number, or " stint of common," free from disease and properly marked. There are Pig-ringers, whose duty it is to prevent any swine wandering on the wastes without being properly ringed. There is a Pinder or Pound- keeper, who arrests stray beasts or animals found at large in contravention of any of the regulations of the little community, and confines them in the Pound, until the owner redeems them by the customary small fine or fee. It is part of the business of the Lord's Court not only to appoint these officers, but also to supervise their work, to make and revise the By-laws that they enforce, and to give them any necessary instructions from time to time.
The agricultural functions of the Lord's Court extended, however, to much more than the administration of the common pastures. The England of 1689 was still, in the main, a country of " common fields " — wide expanses of arable laud, divided into innumerable narrow strips called "pieces," "selions," or "lands," all in separate ownership, but thrown open after harvest to common pasture ; cultivated severally by their owners upon a uniform system, usually that of the well-known three years' course.^ Each Manor had its particular order of cultivation, by which, for instance, approximately one-third of its arable area w^as devoted, in rotation, to " tilthgrain " or winter corn, " etchgrain " or spring corn, and fallow. This "open field" system of agriculture involved a great deal of collective regulation, which fell, as we shall show, to the Jury at the Lord's Court, acting through officers for whom the most significant title was that of Fieldsmen.*
* Termed also Swineherds, Hogreeves, Neatherds or Noltlierds, Common Herds, Shepherds, etc. At Hornsea there was a " Nowtherd, whose office it was to look after the sheep in the pastures" (^An Account of Hornsea in Holdcrness in the East Riding of Yorkshire, by E. W. B., 1847-64).
2 Or Common Keeper ; often, we suspect, called Ilaywards, Finders, etc.
3 See, for instance, the evidence yielded by ' ' the Elizabetlian Yillage Surveys," described by W. J. Corbett in Transactions of Boyal Historical Society, N.S. ix., 1897, pp. 67-87.
* Or Builcymcn or Bylaw-men. In the Manor of Hornsea, four "sworn
THE COURT OF THE MANOR 77
We do not think that the extent and complication of this agricultural business of the Lord's Court has been at all adequately realised. Professor Maitland, for instance, to whom we in common with all students of English institutions owe the deepest gratitude, suggests that " so far as the arable land is concerned, the common field husbandry, when once it has been started, requires little regulation. . . . The truth is that if you have cut up a field into acre strips, given a parcel of dispersed strips to each of many men, and given to each man a right to turn out his beasts on the whole field during a cer- tain part of the year, you have made an arrangement which maintains itself with unhappy ease. These men must follow the accustomed course. If one man strives to break through it, he must straightway trample on his neighbour's crops or suffer his own to be trampled on, for only as a rare exception is there a beaten way to a strip. . . . "We underrate the automatism of ancient agriculture and of ancient government." ^ However true may be this suggestion about the common agriculture of the English Manor of the thirteenth century — and on this we offer no opinion — it was, we think, certainly not true of many an English Manor between 1689 and 1835. By that time, at any rate, even the simplest three -course system included some variety and choice among crops. More- over, even the smallest Manor was divided into more than three parts,^ and these parts necessarily differed among them- selves in their requirements. The actual operations to be performed during the year at the various parts of the area of the Manor, were, even in 1689, not very different in number or diversity from those performed over the same area to-day. We suggest, in fact, that the Manor had, somehow or another, to arrive at nearly as many separate small decisions in the
tenants of the Manor were annually appointed at the Court as Bylaw-men, commonly two for Hornsea Fields and two for Southorp. Their office was, among other things, to look after the stocking of the pastures by the fanners and owners of common rights ; and they also directed the employment of ' the Town's plough ' or ' Common plough ' " (^An AccmiTU of Hornsea in Holdemess in the