A history of the commons: Quia Emptores

With the exception of the crown nobody in the medieval period owned any land. Everyone who ‘held’ land was, in one way or another, a tenant of the crown. At the top were the tenants in capite or as they became known the tenants in chief. They were freemen who held land directly from the king and owed some form of service to him. Tenants in chief, the Earls, Dukes and Knights of the Kingdom often held several hundred manors and had to support his followers by alienating or granting land to them. At the bottom of the pile were individual lords of the manor who had in turn to alienate part of his lands to the inhabitants of the village who thus became tenants of the manor.

There were two groups of manorial tenants who supplied different types of service in exchange for their land. Today the word tenant suggests a mutually agreed contract, freely entered into by both parties but for the first, and largest of the two groups, this was far from the reality. These men, the villani, bordarii and cotarii had to supply ‘servile’ or ‘unfree’ service. Their tenancies were imposed upon them, they were not free to leave the manor and were little more than slaves. Sir Edward Coke, the great Elizabethan jurist, thought these men, and their descendants the copyholders, had a tough time; “Sure I am in Norman times, copyholders were so far subject to the lord’s will that…the lords upon the least occasion…would expel out of house and home their poor copyholders, leaving them helplesse and remedilesse by any course of law…”.

Over the centuries the villeins gradually improved their position in life and Blackstone viewed the role of the lord more benignly than Coke. He believed that the lands of the villein and their access to the waste had originally been granted due to “the good nature and benevolence of many lords of manor” and that in time, as Blackstone put it, “by a long series of immemorial encroachments on the lord, they [the villeins] at last established a customary right to those estates which before were held absolutely at the lord’s will.”

The precise service provided by these men and women at the time of Domesday is not known but by the 12th and 13th centuries, when we have better access to manorial records, it’s clear that nature of the service varied. The classic account of unfree service has it that the the villeins had to work on the lords land for several days a week and this was certainly the core of their service but there appears to have been enormous variation between manors.  In some the villeins were required to work two days a week, in others three. Some worked two days a week except in the autumn when it was reduced to one, others had to plough the land twice a year and help at harvest but didn’t have to provide weekly work. Elsewhere they simply paid a rent. Variation in the service was far more widespread than we used to think.

The second group of tenants were the liberi homines and socmanni or free tenants of the manor. At the time of Domesday however this group was very much in the minority appearing in just 12% of the population. With the exception of those counties that had been under the Dane Law and in East Anglia ^[1] , free tenants, below the tenant in chief who held his land directly from the king, were very rare; less than 3% or so of the population. Many counties and most manors ^[2] outside these areas had none.

That there had been freemen amongst the Anglo-Saxons is not in doubt; the laws of the earliest kings of England, dating back to the 7th century mention ^[3] them. The dearth of freemen in Domesday puzzled 19th century historians who were fixated on the idea that without any free tenants there could be no Court Baron and therefore, legally, no manor. It upset their conception of what a manor was. In time of course freehold tenure [the mark of the freeman] would become the dominant form of tenure but the rate of growth of the free population seems impossible to calculate.  Hutchins for example did not venture to suggest an estimate of their numbers in Dorset. From the scant evidence that exists we know that by the 13th century the percentage of free tenants in the county varied from 0% at Coombe Keynes [fourteen villeins & cottars, no freemen], to 33% [ ten villeins to  five freemen] at Ranston [Iwerne Courtney aka Shroton]. ^[4]

The nature of free service varied enormously although most accounts of the subject [including mine] stick to the principle ones of Knight Service, Frankelmoign and Serjeanty ^[5]. Eventually these were replaced by monetary payments which go by various names such as scutage, socage and quit rent. The service was ‘incidental’ to the land  which is to say that it could never be severed from it with the result that if a part of the land was alienated or granted to someone else part of the service went with it.

This divisibility of land and service led to a process known as sub-infeudation which afflicted the feudal magnates at the end of the 13th century. The problem of sub-infeudation is a complex one and what follows is grossly simplified here. If you are wondering what this has to do with rights of common there is a point to it I promise you!

Suppose that the King granted his tenant in chief [A] land in exchange for which [A] had to supply and maintain ten knights to fight for him when called on to do so. Those knights had of course to have land to support themselves and so the tenant in chief [A] alienated a part of the land the king had granted him to those who were going to be his knights.

To keep it simple suppose [A] wished to alienate half his land to an intermediate or mesne lord [B] what did he have to do? Well first of all he had to obtain the King’s permission to make the grant after all Kings wanted to know who owed what to whom! Assuming this were forthcoming, [A] had to apportion a part of the service that he owed the King to [B] instead.

Once in receipt of the land [B] became a free tenant of [A] and he held land  by the same terms that [A] held his land of the King. As [A] had to provide ten knights to the king and he has just alienated half his land to [B] then [B] becomes responsible for his share of the knights in this case five of them. Being a tenant of [A] he did not supply his knights directly to the king but to [A].

So far so good but what if [B] decided to grant half of his newly acquired land to [C] ? Here the situation was slightly different. Unlike [A] it appears that [B] was under no obligation to get permission from [A] to grant the land to [C] and crucially the terms of service which [C] had to provide could be entirely different to those that [B] had to supply [A]. In theory [C] would owe [B] two and a half knights service but this was clearly impossible and so he might agree to provide [B] with two knights and money in lieu of the half knight [as it were].

Everyone it would seem was happy – except of course the tenant in chief [A] because when the King called upon him to supply ten knights he couldn’t. He may have been able to supply five knights but [B] together with [C], who were to supply him with the other five, could only muster four between them. He and the King were now a knight short.

Well this is a hypothetical example but it illustrates the point that because numerous feudal incidents were divisible in this way the process of sub-infeudation led to the loss service and income to the great magnates [all the [A]’s in the land] as well as the King.

So great a concern was this that at the end of the 13th century the tenants in chief petitioned the king [Edward I] to do something about it. In 1290 Edward, caused  the Statute of Quia Emptores, to be enacted. This apparently means ‘since purchasers’ and so is best rendered in the Latin which certainly sounds better!

The preamble makes it clear that the statute was brought in at the instance [insistence] of the ‘great Men of the Realm’. The magnates did not want to lose the ability to alienate parts of their land to others they just wanted to ensure that their feudal privileges were not diluted and would be paid in full when the time came. There is little doubt that the impetus to pass the statute came from the magnates rather than the king. Michael Prestwich, the Yale Biographer of Edward 1, saw the statute as “a compromise between the magnates’ desire to establish freedom of alienation without loss of feudal rights and the crown’s continued desire to maintain full control over it’s tenants in chief.”

The terms of the statute was if nothing else concise.

In future [B], the Freeman, in the statute, could sell all or part of his land to [C] but in so doing [C] would now provide [A] with all the feudal incidents and service due and the nature of those incidents and service had to be the same as those [B] provided [A].

At the level of the manor the consequences were both simple and complicated. If [B] sold land to [C] then the statute stopped [C] being a free tenant of [B]’s manor, even though his newly acquired land was in [B]’s manor.

There were now three classes of tenants,

• Unfree tenants of the manor
• Free tenants of the manor
• Free tenants with land in the manor but not a part of the manor.

Why does this matter? A good question: to the lawyers it was important for several reasons. Firstly as it was no longer possible to create free tenants of the manor no new common of pasture appendant [COPA] could be created. In future rights of common would have to take another form. Secondly since no new free tenants of the manor could be created as the old ones died out the manor itself became vulnerable as without free tenants there could be no Court Baron and  without a Court Baron there could be no manor. ^[7]

[1] COUNTIES WITH FREEMEN in DOMESDAY: Lincolnshire, Suffolk, Norfolk, Leicestershire, Nottinghamshire, Northampton, Essex, Cambridge, Derbyshire and Bedfordshire.

[2] MANORS: In later legal theory a manor could not exist if it had no free tenants. Free tenants were rare however and on the basis that if it smells like a rose and looks like a rose it probably is a rose most ‘manors’ which had no free tenants were in fact still regarded and treated as manors. A form of ‘doublethink’ which George Orwell would have been proud of.

[3] OCCUPANTS OF ANGLO-SAXON ENGLAND; Freemen paid 50 shillings ‘mundbyrd’ [protection money] to the king whilst another group ‘commoners’ paid just 6 shillings. What other differences between these two may have been is not known but they were almost certainly better off than the ‘best class slaves’, second class slaves, third class slaves and ‘grinding slaves’ which are also found. See The Laws of the Earliest English Kings, F L Attenborough 1922.

[4] FREEMEN IN DORSET: Victoria History of the County of Dorset volume 2 1908 [A project that was never alas completed]. Other proportions that were discovered are at Steeple [two freemen and forty four villeins]. At Milton Abbas there were nineteen freemen and one hundred and fifty six villeins and at Hillfield four freemen and nineteen villeins.

[5] FREE SERVICE: Some of these services were to say the least bizarre. At Abington in Cambridge the manor was held by the service of holding the King’s stirrup when he mounted this horse at Cambridge Castle. In fact holding a stirrup was a common form of service. At Aston, Edward III demanded the heir of the Earl of Pembroke provide a foot soldier with a bow, but without a string, but with a helmet, for forty days when the king went to war with Wales. Henry II on the other hand granted Boscher his servant with the manor of Bericote so long as Boscher provided him with a white dog with red ears once a year. The reader is referred to “Tenures of Land and Customs of Manors Originally collected by Thomas Blount” but reissued in 1874 by W Carew Hazlitt. Blount and Hazlitt it appears were aficionados of the unusual.

[6] QUINZIME: The quinzime was the 15th day after the festival of St John the Baptist on 24th June so this takes up to the 9th July in the Julian calendar or 16th in the Gregorian.

[7] NO MANOR: What difference this made in practice is not so clear. After all the unfree tenants, the land and the landowner still existed regardless of the existence of the court.

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