第43章

The well-known fact that the 'ferm' or rent of royal manors was not always fixed, that we constantly hear of an increased rental (incrementum) levied in addition to the old 'ferm', (assisa redditus antiquitus assisus), can be easily reconciled with this doctrine.(70*) The prosperity of the country was gradually rising; both in agricultural communities and in towns new tenements and houses, new occupations and revenues were growing, and it was not the interest either of the communities or of the lord to compress this development within an unelastic bond. In principle the increased payments fell on this new growth on the demesne, although this may in some cases have been due to exactions against which the people could remonstrate only in the name of immemorial custom, and only by way of petition since nobody could judge the king. In principle, too, certainty of condition was admitted as to the privileged villains on the king's demesnes.(71*)This serves to explain the procedure followed by the court when a question of services was raised by a writ of 'Monstraverunt.' The first thing, of course, was to ascertain whether the manor was ancient demesne or not, and for this purpose nothing short of a direct mention in Domesday was held to be sufficient.(72*) When this question had been solved in the affirmative, a jury had to decide what the customs and duties were, by which the ancestors of the plaintiffs held at the time when the crown was possessed of the manor. In principle it was always considered that such had been the services at the time of the Conquest,(73*) but practically, of course, there could be no attempt to examine into such ancient history. The men of King's Ripton actually pleaded back to the time of King Cnut, and maintained that no prescription was available against their rights as no prescription could avail against the king.(74*) The courts naturally declined to go higher than men could remember, but they laid down this limitation entirely as one of practice and not of principle.(75*) Metingham demanded that the claimants should make good their contention even for a single day in Richard Coeur de Lion's time.(76*) The men of Wycle combine both assertions in their contention against Mauger; they appeal to the age of the first Norman kings, but offer to prove the certainty of their services in the reigns of Richard and John.(77*)Now all that has been said hitherto applied to 'the tenants in ancient demesne' indiscriminately, without regard to any diversity of classes among them. Hitherto I have not noticed any such diversity, and in so doing I am warranted by the authorities. Those authorities commonly speak of 'men' or 'tenants in ancient demesne' without any further qualification.(78*) Sometimes the expression 'condition of ancient demesne' also is used. But closer examination shows a variety of classes on the privileged soil, and leads to a number of difficult and interesting problems.

To begin with, the nature of the tenancy in general has been much contested. As to the law of later times Mr Elton puts the case in this way: 'There is great confusion in the law books respecting this tenure. The copyholders of these manors are sometimes called tenants in ancient demesne, and land held in this tenure is said to pass by surrender and admittance. This appears to be inaccurate. It is only the freeholders who are tenants in ancient demesne, and their land passes by common law conveyances without the instrumentality of the lord. Even Sir W.

Blackstone seems to have been misled upon this point. There are however, as a rule, in manors of ancient demesne, customary freeholders and sometimes copyholders at the will of the lord, as well as the true tenants in ancient demesne.'(79*) Now such a description seems strangely out of keeping with the history of the tenure. Blackstone speaks of privileged copyhold as descended from privileged villainage;(80*) and as to the condition in the thirteenth century of those 'men' or 'tenants in ancient demesne'

of whom we have been speaking, there can be no doubt. Bracton and his followers lay down quite distinctly that their tenure is villainage though privileged villainage. The men of ancient demesne are men of free blood holding in villainage.(81*) And to take up the special point mentioned by Mr Elton -- conveyance by surrender and admittance is a quite necessary feature of the tenure:(82*) conveyance by charter makes the land freehold and destroys its ancient demesne condition.(83*) But although this is so clear in the authorities of the thirteenth century, there is undoubtedly a great deal of confusion in later law books, and reasons are not wanting which may account for this fact and for the doctrine propounded by Mr Elton in conformity with certain modern treatises and decisions.