Villainage in England: Essays in English Mediaeval HistoryVinogradoff, Paul
History
Villainage in England: Essays in English Mediaeval History
Vinogradoff, Paul
Villeinage -- England -- History -- To 1500
The characteristic mixture of different elements which we notice in the
criminal jurisdiction of the manorial court may be seen also if we
examine its civil jurisdiction. We find the halimot treating in its
humble region all the questions of law which may be debated in the
courts of common law. Seisin, inheritance, dower, leases, and the like
are discussed, and the pleading, though subject to the custom of the
manor, takes very much the shape of the contentions before the royal
judges. Now this civil litigation is interesting from two points of
view: it involves statements of law and decisions as to the relative
value of claims. In both respects the parties have to refer to the body
of the court, to its assessors or suitors. The influence of the
'country' on the judgment goes further here than in the Common Law
Courts, because there is no independent common law to go by, and the
custom of the manor has generally to be made out by the manorial tenants
themselves. And so a party 'puts himself on his country,' not only in
order to decide some issue of fact, but also in regard to points of
customary law. Inquisitions are made and juries formed quite as much to
establish the jurisprudence of the court as to decide who has the better
claim under the said jurisprudence. Theoretically it is the full court
which is appealed to, but in ordinary cases the decision rests with a
jury of twelve, or even of six. The authority of such a verdict goes
back however to the supposed juridical sense or juridical knowledge of
the court as a body. Now it cannot be contested that such an
organisation of justice places all the weight of the decision with the
body of the suitors as assessors. The presiding officer and the lord
whom he represents have not much to do in the course of the
deliberation. If we may take up the comparison which Mr. Maitland has
drawn with German procedure[812], we shall say that the 'Urtheilfinder'
have all the best of it in the trial as against the 'Richter.' This
'Richter' is seemingly left with the duties of a chairman, and the
formal right to draw up and pronounce a decision which is materially
dependent on the ruling of the court. But a special reserve of equity is
left with the lord, and in consequence of its operation we find some
decisions and sentences altered, or their execution postponed[813]. I
have to endorse one more point of Mr. Mainland's exposition, namely,
his view of the presentment system as of a gradual modification of the
original standing of the manorial suitors as true assessors of the
court. Through the influence of the procedure of royal courts, on the
one hand, of the stringent classifications of the tenantry in regard to
status on the other, the presenters were gradually debased, and legal
learning came to maintain that the only judge of a customary court was
its steward. But a presentment of the kind described in the manorial
rolls vouches for a very independent position of the suitors, and indeed
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