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
Although the tenants in ancient demesne are admitted to use the 'little
writ of right' only, their court made it go a long way; and in fact, all
or almost all the real actions of the common law had their parallel in
its jurisdiction. The demandant, when appearing in court, made a
protestation to sue in the nature of a writ of mort d'ancestor or of
dower[168] or the like, and the procedure varied accordingly, sometimes
following very closely the lines of the procedure in the high courts,
and sometimes exhibiting tenacious local usage or archaic
arrangements[169].
[Procedure of revision.]
Actions as to personal estate could be pleaded without writ, and as for
the crown pleas they were reserved to the high courts[170]. But even in
actions regarding the soil a removal to these latter was not
excluded[171]. Evocation to a higher court followed naturally if the
manorial court refused justice and such removal made the land frank
fee[172]. The proceedings in ancient demesne could be challenged, and
thereupon a writ of false judgment brought the case under the cognizance
of the courts of common law. If on examination an error was found, the
sentence of the lower tribunal was quashed and the case had to proceed
in the higher[173]. Instances of examination and revision are frequent
in our records[174]. The examination of the proceedings by the justices
was by no means an easy matter, because they were constantly confronted
by appeals to the custom of the manor and counter appeals to the
principles of the common law of England. It was very difficult to adjust
these conflicting elements with nicety. As to the point of fact, whether
an alleged custom was really in usage or not, the justices had a good
standing ground for decision. They asked, as a rule, whether precedents
could be adduced and proved as to the usage[175]; they allowed a great
latitude for the peculiarities of customary law; but the difficulty was
that a line had to be drawn somewhere[176]. This procedure of revision
on the whole is quite as important a manifestation of the freehold
qualities of privileged villainage as pleading by writ. Men holding in
pure villainage also had a manorial court to go to and to plead in, but
its judicial organisation proceeded entirely from the will and power of
the lord, and it ended where his will and power ended; there was no
higher court and no revision for such men. The writ of false judgment in
respect of tenements in ancient demesne shows conclusively that the
peculiar procedure provided for the privileged villains was only an
instance and a variation of the general law of the land, maintaining
actionable rights of free persons. And be it again noted, that there was
no sort of difference as to revision between those manors which were in
the actual possession of the crown and those which were out of it[177].
Revision and reversal were provided not as a complement to the legal
protection of the tenant against the lord, but as a consequence of that
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