DRAFT Published in John Witte, Jr., Sara McDougall, and Anna di Robilant, eds., Texts and Contexts in Legal History: Essays in Honor of Charles Donahue (Berkeley, CA: Robbins Collection, 2016), 257-275. Law and Equity in a Medieval English Manor Court1 Elizabeth Papp Kamali The ambitious title given this brief contribution belies the nature of the exercise, which is a close textual reading and contextual analysis of a short series of early fourteenth-century manorial court roll entries regarding a messuage (dwelling house) and half yardland in the Buckinghamshire manor of Great Horwood. Perhaps it is unreasonable to think that one might derive conclusions about law and equity in a manor court from a tiny sampling of texts.2 Yet it is in the nature of the methodology imparted by Charlie Donahue to his many students that one might place a seemingly minute detail from a court roll under the legal historian’s microscope, trace the threads that come into view, and ultimately draw macro-level conclusions, sometimes tentative and occasionally provocative, about the nature of law and society in medieval England. It is a methodology I first encountered as a freshman preparing weekly response papers in Charlie’s course on the “Legal and Constitutional History of Medieval England,” a class that inspired my subsequent career choices. But for now let us return to that messuage and half yardland. 1 My thanks to Charles Donahue for a first introduction to the fascinating world of manorial court records; to John Goldberg, Tom Green, Tom Johnson, Eric Nemarich, and John Witte for reading earlier drafts; and to my research assistant, Cassandra Rasmussen. 2 On the allure of the “interesting case,” see Charles Donahue, “Female Plaintiffs in Marriage Cases,” in Wife and Widow in Medieval England, ed. Sue Sheridan Walker (Ann Arbor, MI: University of Michigan Press, 1993), 184-85. 1 DRAFT In late October 1317, during harvest time, an inquest at Great Horwood—likely a jury of twelve tenants—declared that Robert de Salden, a villein, was “a fugitive and of ill repute” (fugitivus et male fame).3 Due to his fugitive status, Robert “entirely forfeited” (omnino…forisfecit) his land, an ostensibly permanent forfeiture that allowed the lord to transfer the tenements to a person of his choosing, to hold without any danger of a future claim by Robert or his issue.4 The record was unequivocal: the forfeiture was to be permanent. Yet Robert’s interest in the land did not vanish with this proclamation by the manor court. Instead, the ensuing fourteen years witnessed a series of claims by interested parties, including Robert’s widow and son, ending ultimately in recovery by the fugitive’s heir. What explains this reversal of the court’s 1317 judgment, which supposedly precluded all claims in perpetuum? A close reading of the roll, combined with consideration of the broader historical context, reveals: (1) competing interests among various members of the Great Horwood community; (2) the selective marshaling of written evidence, manorial custom, and common law rules; and (3) the exercise of equitable discretion in selecting the “rightful” tenant, possibly guided by extra-legal factors, such as the exigencies of famine. Each of these themes will be treated in succession following a brief timeline of possession in and a description of the tenements. In addition to making a claim about the inherent flexibility of custom and the various tactics employed in this particular manor court to resolve a complex dispute, I hope to advance a methodological claim regarding the importance of the deep, textual and contextual history familiar to Charlie’s students. 3 L.R. Poos and Lloyd Bonfield, eds., Select Cases in Manorial Courts (London: Selden Society, 1998), 3. I rely gratefully on these excerpts from rolls housed at New College, Oxford. For analysis of the core dispute, see ibid., xcvii-xcix. 4 Ibid., 3 (“…dominus tenementum illud tradere potest cuicumque voluerit tenendum absque reclamatione predicti Roberti vel alicujus alterius de exitu illius in perpetuum.”) 2 DRAFT The Successive Holders of Robert de Salden’s Lands, 1317-1331 According to Maitland’s pithy definition, a manor was “an estate which could be and was administered as a single economic and agrarian whole.”5 Manorial tenants ploughed and reaped in common to supply their needs and those of the lord.6 A manor court was a periodic gathering of tenants and manorial officers to register land transfers, respond to violations of manorial custom, and adjudicate disputes among tenants. Decisions were often made by all those gathered at court, i.e., the body of suitors or “the homage,” although over time it became more common for this power to be delegated to smaller juries.7 Rolls often refer to “the lord” (dominus) making specific grants and receiving tenements into his hands; however, he might be represented in court by his steward, an administrative officer who, as part of the lord’s council (consilio domini), likely held great sway in adjudication. Manorial rolls are the parchment records of the manor court, written in the same secretarial hand as the plea rolls of the central royal courts, with fines typically enumerated in the left margin. To return to the specific dispute here, upon Robert’s condemnation as a fugitive in 1317, the lord transferred his tenements to Walter Hogges, who died within a year of taking possession.8 In 1318, the lord assigned the land to Stephen le Carter, who appears to have held it peacefully for the next decade. Then, in 1329, Robert de Salden’s widow, Isabel, appeared in the 5 Frederic Maitland, Select Pleas in Manorial and Other Seignorial Courts (London: B. Quaritch, 1888), xl. 6 Ibid. 7 See Poos and Bonfield, Select Cases, xxiii. 8 Ibid., 3-4. 3 DRAFT manor court; she successfully claimed her dower in the messuage and half yardland.9 It is unclear when Robert died, and whether Isabel remained in Great Horwood following her husband’s initial forfeiture, but Isabel brought her dower claim against Stephen with the contention that her late husband never actually forfeited the said tenements (ea tenementa numquam forisfecit).10 Just months later, Stephen le Carter’s son-in-law, John le Carpenter, perhaps alarmed by the court’s resolution of Isabel’s dower claim, approached the manor court for confirmation of his right to succeed to the tenements. The lord granted to John that the land currently held by Stephen le Carter and Isabel de Salden (i.e., her dower portion) should descend to John and his wife Joan and their heirs, “to hold in villeinage (in villenagio) according to the custom of the manor” following the deaths of Stephen and Isabel.11 This result contravened the wishes of Stephen himself, who preferred the land to devolve upon his younger daughter instead of Joan, who had married John against her father’s wishes.12 According to the rolls, passing the tenement to a younger daughter would be “completely against manorial custom” (contra consuetudinem maneri [sic] omnino). The court roll does not identify Stephen’s younger daughter by name, but other entries indicate that Stephen may have been in financial straits within years of acceding to Robert de Salden’s forfeited tenements, and that he owed debts in conjunction with a daughter named Agnes; in fact, Stephen appears to have had at least three daughters and no sons, a circumstance that may have further strained his finances as the daughters reached marriageable 9 Ibid., 4-5. Dower is a widow’s life estate in a portion, typically one-third, of the land held by her husband at the time their marriage was contracted. See Theodore Plucknett, Concise History of the Common Law, 5th ed. (Boston: Little Brown, 1956), 566. 10 Poos and Bonfield, Select Cases, 4-5. 11 Ibid., 16. 12 Ibid., 16-17. 4 DRAFT age.13 Following Stephen’s death in 1329/30, John successfully took possession of the land, performing fealty for the two-thirds not subject to Isabel’s dower. Yet John and Joan’s success was short-lived. In 1330, Thomas de Salden, the son of Isabel and the late fugitive Robert, appeared in the manor court to claim the tenements as his father’s heir.14 This initial attempt proved unsuccessful. A few months later, however, Thomas reasserted his claim and succeeded in recovering the land allegedly forfeited by his father over a decade earlier. In less than a decade and a half, Robert de Salden’s lands had passed through a variety of hands, ultimately coming full circle to rest with Robert’s first-born son, Thomas. What might explain this series of events? Timeline of Events October 1317 Robert de Salden declared a fugitive; forfeits land. Walter Hogges takes possession, pays 100s., and does fealty. June 1318 Walter Hogges reported dead. Stephen le Carter pays 100s. entry fine and takes possession. June 1329 Isabel, widow of Robert de Salden, claims her dower successfully. October 1329 John le Carpenter, Stephen’s son-in-law, secures assurance that he and his wife, Joan, will succeed to the tenements following Stephen’s death; pays 6s. 8d. August 1330 Thomas, son of Robert de Salden, makes his first claim and loses. January 1331 Thomas again makes a claim and succeeds, paying a 66s. 8d. entry fine. Henry Bicon pays a 15s. entry fine for a leasehold of 6.5 acres. 13 In May 1320, Stephen was fined 6d. for violating the assize of ale and, along with his daughter Agnes, was the target of a debt plea brought by a Little Horwood resident. W.O. Ault, Open-Field Farming in Medieval England (London: Allen and Unwin, 1972), 162-63. Stephen had at least one more daughter, Johanna, for whom he paid the lord one-quarter of oats for permission to marry her to John of Westbury, also in 1320. Ibid., 163. A few years later, in 1323, Stephen le Carter paid a small 2d. fine for default. 14 Poos and Bonfield, Select Cases, 5-6. 5 DRAFT Background Information on the Nature and Value of the Tenements Robert de Salden’s land consisted of a customary (as opposed to freehold) messuage and half yardland (mesuagium et dimidiam virgatam terre), the former likely referring to a dwellinghouse, subsidiary structures, and perhaps a garden, and the latter to a plot of land that may have been roughly thirty acres in extent.15 We know from the rolls that the tenements contained not just a single dwelling house, but multiple buildings.16 The tenements were valued, for entry fine purposes (an entry fine being a sum paid by a new tenant upon assuming possession), at a surprisingly high 100 shillings, or £5; this was the amount paid by Walter Hogges and Stephen le Carter in 1317 and 1318, respectively, suggesting that these men were relatively well off.17 The entry fine of 6s. 8d. prepaid by John and Joan le Carpenter in 1329 represented a substantial discount, likely due to the fact that the couple could not occupy the entire property until Joan’s father and the widow Isabel had both died.18 The discount may also reflect the court’s awareness of the implications of Isabel’s successful dower 15 In 1320, Great Horwood had eight freehold and forty-two customary messuages, and eleven cottages without attached farmland; it had fifty-eight tenants, likely heads of household with multiple dependents. See Matthew Tompkins, Peasant Society in a Midlands Manor (Ph.D. Diss. University of Leicester, 2006), 179. A virgate (from Latin virga, rod), or yardland (Old English gięrd-land), varied in measurement. See OED, s.v. “virgate;” A.W. Barsby and Clare Barsby, Manorial Law (Epsom: Barsby Legal Research and Publ., 1996), 18. On the word “acre” in medieval records, see P.D.A. Harvey, “Manorial Records,” in Medieval Manorial Records, ed. Margaret L. Faull (Leeds: Medieval Section of the Yorkshire Archaeological Society, 1983), 6-8. On villein lands, see Frederick Pollock and Frederic W. Maitland, History of English Law, 2d ed (Cambridge: Cambridge University Press, 1898), 1:364-65. 16 See Poos and Bonfield, Select Cases, 4 (“domos et edificia”). “Messuage” might be translated as “farmstead.” See Tompkins, Peasant Society, 60. 17 Poos and Bonfield, Select Cases, 3-4. Tom Johnson (private correspondence) speculates that Great Horwood’s tenants may have included relatively well-off yeomen in light of these sizable £5 entry fines, which may also reflect the inflationary impact of the famine years. On the use of local courts by wealthier peasants at Great Horwood and elsewhere, see generally, Chris Briggs, “Seignorial Control of Villagers’ Litigation,” Historical Research, 81:213 (2008): 399-422. Briggs specifically describes Robert de Salden as a significant landlholder in light of his possession of a half virgate. See Chris Briggs, Credit and Village Society in Fourteenth-Century England (Oxford: Oxford University Press, 2009), 173-74. 18 Poos and Bonfield, Select Cases, 16. 6 DRAFT claim a few months earlier; there may even have been foreknowledge of Thomas de Salden’s imminent suit. The entry fine paid in 1331 by Thomas de Salden—66s. 8d. (i.e., five marks), or two-thirds of 100s.—suggests that he may have only gained immediate entry to two-thirds of the full property at the time, perhaps due to his mother’s continued dower stake in the remaining one-third.19 Competing Interests in Robert de Salden’s Messuage and Half Yardland Creditors and other tenants, possibly overlapping categories, likely shared an interest in Robert de Salden’s tenements. Thanks to the work of Chris Briggs, we know that Robert was saddled with debts in the decade preceding his forfeiture.20 When he forfeited his tenements in 1317, other Great Horwood tenants may have clamored for an opportunity to benefit from the newly available lands. Assigning a new tenant swiftly was also in the lord’s interest: he would receive customs and services (consuetudines et servicia) with little interruption, ensure the maintenance of any buildings, and receive a 100-shilling fine from the new tenant.21 During a time of crop failure, a circumstance to be discussed below, the lord and his tenants alike may have been particularly interested in a speedy conveyance. A whole series of tenants—from Walter Hogges, to Stephen le Carter, to John and Joan le Carpenter, to Thomas de Salden—gained access to the tenements between 1317 and 1331. 19 Ibid., 7. 20 See Briggs, Credit and Village Society, 153 (describing Robert’s declining fortune in the 1310s, when he appears in the rolls as a lessor and, on six occasions, as a debtor). 21 Poos and Bonfield, Select Cases, 4. The new tenant, Walter Hogges, promised to perform the customs and services and to maintain the buildings in the same or better condition than before, as was typical in such land transfers. Tompkins observes that vacancies were relatively rare at Great Horwood due to the manor’s favorable landholding conditions, including low rents. Tompkins, Peasant Society, 56. 7 DRAFT Another subset of individuals leased an arable 6.5-acre portion of the tenements, thereby providing a source of ready income to the lessor. Emma Isoude held the 6.5 acres for a term of years as of 1329, although her tie to the land may have been established prior to that date. For instance, the rolls reveal that Emma’s husband, John, served as a pledge for Stephen le Carter in 1318 when the lord first granted Stephen the tenements.22 Perhaps Emma and John’s interest predated Stephen’s accession to tenure: they may have been farming the plot during the tenure of Walter Hogges, or perhaps even before Robert de Salden’s forfeiture. This same 6.5-acre portion would be leased again in 1331, when Thomas de Salden, upon regaining his father’s lands, immediately demised the arable piece to one of his pledges, Henry Bicon, for a fourteenyear term.23 Beyond these tenants and lessees, another group of manor court participants may have had some interest in the outcome of these successive moments of litigation. Ralph, son of Richard the Reeve, for example, served as a pledge for both Walter Hogges in 1317 and Stephen le Carter in 1318,24 supporting both men in their commitment to maintaining the property and performing the customary services once owed by Robert de Salden. Of greater interest is Robert Saunders, who appeared as a pledge for Walter, Stephen, and John le Carpenter in 1317, 1318, and 1329, respectively.25 Perhaps Robert was simply a man of local well repute and significant enough means to serve as pledge for his neighbors. Yet his involvement may not have been entirely impartial. In fact, Robert was “challenged by the parties” when the court summoned the 22 Poos and Bonfield, Select Cases, 4. In 1331, John Isoude was described as the former holder of the 6.5-acre arable plot. Ibid., 7. It was not uncommon for an individual to serve as pledge before leasing a portion of a newly acquired tenement, as will be seen below with Thomas de Salden and Henry Bicon. 23 Ibid., 7. Henry paid an entry fine of 15s. 24 Ibid., 3-4. 25 Ibid., 3-4, 17. This assumes that the same Robert Saunders was involved in all three instances, and not, for example, his son. 8 DRAFT whole homage, presumably all the tenants attending the court,26 to determine the outcome of Thomas de Salden’s claim.27 Logic tells us that Thomas likely challenged Robert, although matters are complicated by the fact that Robert then proceeded to serve as a pledge for Thomas when the court decided in the latter’s favor.28 Nevertheless, his exclusion from the homage suggests that his impartiality had somehow been tainted by his prior participation in the lord’s grants. Supporting this conclusion is the fact that Walter Stevenes, who served as pledge for Stephen le Carter in 1318 and John le Carpenter in 1329, was likewise excluded from the homage’s deliberations in 1331.29 Walter apparently had an even greater financial tie with Stephen: the 1318 roll reveals that Walter owed Stephen a sizable 60s. debt, which was immediately applied to cover more than half of Stephen’s entry fine.30 Perhaps there was some greater quid pro quo involved in Walter’s willingness to serve as pledge; this, in turn, could have inspired Thomas de Salden to challenge his participation in the homage in 1331.31 While the evidence is inconclusive, the rolls hint that pledges might have directly influenced the outcome of a dispute by serving on an inquest jury or through participation in the homage. For example, William Baynard served as pledge for Walter Hogges in 1317 when Robert de Salden was first condemned as a fugitive, and then participated thirteen years later in an inquest 26 See OED, s.v. “homage” (“the body of tenants attending a manorial court, or the jury of such a court.”); John Beckerman, “Procedural Innovation and Institutional Change in Medieval English Manorial Courts,” Law and History Review 10:2 (1992): 242-3. 27 Poos and Bonfield, Select Cases, 6. 28 Ibid., 7. 29 Ibid., 4, 6, 17. 30 Ibid., 4. 31 For the idea that pledging frequently involved payment, see Martin Pimsler, “Solidarity in the Medieval Village?” Journal of British Studies 17:1 (1977): 5, 11. At Great Horwood, we may be dealing less with monetary payments and more with promises regarding interests in the land at issue. 9 DRAFT assigned to determine whether Robert had indeed been a fugitive; the inquest answered in the affirmative.32 William may have been selected for the inquest due to his direct knowledge of the 1317 events. He may also have been a regular actor, along with his kinsmen, in the Great Horwood court.33 Finally, we have evidence that John le Carpenter may have shored up his case through recourse to a third party, Ralph Burdet (identified in the roll as dompno and therefore possibly the prior of Newton Longville Priory, a Cluniac house that had held the manor since the twelfth century), to whom he paid 12d.34 Burdet, whose identity is unclear but who may have been the lord of the manor, registered a small monetary gain when John succeeded in acquiring a right to his father-in-law’s tenements. From tenants to lessees, and pledges to inquest jurors, several Great Horwood residents had a stake in the outcome of the dispute over Robert de Salden’s messuage and half yardland. 32 Poos and Bonfield, Select Cases, 5-6. William may have been related to Sabina Baynard, to whom Robert de Salden acknowledged a 19s. debt in 1312. See Briggs, Credit and Village Society, 153. 33 See, e.g., William’s participation on other occasions, as well as that of Richard Baynard and Richard Baynard “the younger” in the 1330 inquest. Poos and Bonfield, Select Cases, 5, 18, 51-52. 34 Ibid., 17 and n.1. “Dompno” is an honorific frequently attached to abbots and priors. On the early history of Great Horwood, located less than three miles from the Bletchley Park of World War II fame, see H.E. Salter, Newington Longeville Charters (Oxford: The Society, 1921), xii; William Illingworth, ed., Placita de Quo Warranto (London: G. Eyre and A. Strahan, 1818), 96; “Parishes: Newton Longville,” in A History of the County of Buckingham, ed. William Page (London: St. Catherine Press, 1927), 4:425-29. The prior was lord of the manor as of 1316, the year before Robert de Salden’s forfeiture. See “Parishes: Horwood,” in A History of the County of Buckingham, ed. William Page (London: St. Catherine Press, 1925), 3:372-76; Inquisitions and Assessments Relating to Feudal Aids, 1284-1431 (London: Her Majesty’s Stationery Office, 1899), 1:112. See also “Alien Houses: Cluniac Priory of Newton Longville,” in A History of the County of Buckingham, ed. William Page (London: James Street, 1905), 1:395-96; David Knowles and R. Neville Hadcock, Medieval Religious Houses: England and Wales (London: Longmans, Green, 1971), 101; David Smith and Vera London, eds., Heads of Religious Houses, England and Wales, 1216-1377 (Cambridge: Cambridge University Press, 2001), 242-3. Newton Longville did not have a monastic house; rather, Longueville in Normandy may have routinely sent a monk or two to manage the Buckinghamshire properties. Salter, Newington Longeville Charters, xvi. 10 DRAFT Selective Use of Manor Rolls and Custom Despite the involvement of third parties, we cannot attribute the outcome of the successive claims solely to self-interested human intervention, or “jiggery-pokery,” to borrow a phrase from Charlie’s teaching lexicon.35 Rather, the manor rolls themselves, as a source of written precedent, and manorial custom, as a source of oral precedent derived from collective memory, may have helped determine the outcome of the litigation.36 Manor court participants made selective use of both these devices. And written records alone were not necessarily dispositive. For example, when Robert de Salden’s widow, Isabel, staked her dower claim to a third of Stephen le Carter’s tenements, the roll states that Stephen was unable to assert that Robert had clearly forfeited the tenements.37 Yet the 1317 roll, had it been consulted, would have informed the court that Robert had indeed “entirely forfeited that land.”38 Did Stephen fail to anticipate the value that a search of the rolls might hold for his claim? Might a roll search have proven too costly or cumbersome? Did Stephen hesitate to bring too forceful a challenge due to his perception that the equities—and community sentiment—weighed heavily in favor of Robert’s widow?39 Did illness or dementia weaken his effectiveness in responding to Isabel’s dower 35 A phrase, incidentally, which has since crept into Supreme Court jurisprudence. See Justice Scalia’s dissent in King v. Burwell, 135 S.Ct. 2480, 2500 (2015) (describing the Court’s “interpretive jiggerypokery” in parsing the Affordable Care Act). 36 Beckerman observes that it became common to vouch the rolls as proof during the second half of the thirteenth century. Beckerman, “Procedural Innovation,” 224. On the benefits thereby accruing to villeins, see R. M. Smith, “Some Thoughts on ‘Hereditary’ and ‘Proprietary’ Rights in Land under Customary Law,” Law and History Review 1:1 (1983): 110. 37 Poos and Bonfield, Select Cases, 5. 38 Ibid., 3. 39 On the role of equity, see Lloyd Bonfield, “The Nature of Customary Law in the Manor Courts of Medieval England,” Comparative Studies in Society and History, 31:3 (1989): 521, 531. See also J. A. Raftis, Tenure and Mobility: Studies in the Social History of the Medieval English Village (Toronto: 11 DRAFT claim, given the fact that Stephen died shortly after? Perhaps everyone knew that the earlier judgment against Robert de Salden and his issue had been wrongly decided, assuming we can speak of “right” and “wrong” with regard to custom,40 in which case a search of the rolls might have only complicated matters. In contrast, the rolls were searched less than a year later when Robert de Salden’s son, Thomas, first brought a claim. According to the 1330 roll, “it was found by the rolls of the court” from 1317 that Robert was indeed a fugitive who “entirely forfeited” the land;41 the use of direct quotations from the 1317 roll confirms that an actual search transpired, as opposed to relying on the memory of individuals present at the earlier court session. In fact, the roll search must have been thorough, as the court proceeded to describe the devolution of tenure from Robert to Walter Hogges, Stephen le Carter, and ultimately John and Joan le Carpenter, “as nearer of the blood of the same Stephen.”42 In light of the outcome, one suspects that John and Joan may have petitioned for an examination of the rolls. Yet after all the trouble of a thorough search of the rolls, the written record was not held as unimpeachable evidence of the failure of Thomas’ claim. Rather, the court then held an inquest of twelve men, who concluded that Robert had been a fugitive and had forfeited his tenements, and that neither Robert, were he alive, nor any of his issue could hold the tenements “according to custom” (secundum Pontifical Institute of Mediaeval Studies, 1964), 207, n. 3. My thanks to Tom Johnson for the latter reference. 40 On the nature of custom, see Beckerman, “Procedural Innovation,” 216; Bonfield, “Nature of Customary Law,” 519, 522, 526-7; Smith, “Some Thoughts on ‘Hereditary’ and ‘Proprietary’ Rights,” 98, 102. 41 Poos and Bonfield, Select Cases, 5. 42 Ibid. 12 DRAFT consuetudinem).43 A jury, representing local knowledge and testifying under oath, supplemented the evidence of the rolls with statements of fact related to Robert’s status and inheritance custom, and the matter appeared to have been settled conclusively. Yet what explains the turn of events a few months later when the court awarded possession of the tenements to Thomas de Salden? Neither the court’s declaration in 1317 that Robert de Salden had permanently forfeited his tenements, nor its assertion in 1330 that Robert’s son, Thomas, could not legitimately claim the tenements, precluded revisitation of the issue when Thomas decided to try his luck again. What appears, from our perspective, to have been res judicata, was in actuality still open for reconsideration, suggesting that if Thomas did indeed have a right to his father’s tenements, then that right could not be eliminated by a prior court decision. Finality does not appear to have been of overriding concern in Great Horwood’s court.44 Inspired by Charlie’s example, we might imagine some legal realist motivations for the court’s reconsideration of Thomas’ plea. For instance, perhaps a claim brought during the harvest season, in August 1330, was viewed less favorably than a claim brought in midwinter, in January 1331, when fields were lying fallow, thereby simplifying a transition in tenancy. Thomas may also have brought more persuasive arguments and evidence to bear in his second appearance. For example, Thomas argued that the court had previously endowed his mother, Isabel, in the same tenements, and a search of the rolls confirmed this point.45 Thomas apparently felt the court was bound by its earlier decision to admit Isabel to her dower, as this amounted to a concession that Robert de Salden’s right in the land had not evaporated in 1317. 43 Ibid., 5-6. Had memory perhaps triumphed over the written record? See, generally, Michael Clanchy, From Memory to Written Record (Oxford: Blackwell, 1993). 44 A further study might explore the role of finality in manorial court decisions. Was Thomas’ relitigation of this issue a rare exception to a normal rule of preclusion, or was this instead a fairly common practice in Great Horwood and elsewhere? 45 Poos and Bonfield, Select Cases, 6. 13 DRAFT Had Robert truly forfeited his land permanently, then his widow might have had no viable claim to dower in the tenements.46 Once again, the roll evidence could not stand alone. Instead, the whole homage was sworn to testify. The homage confirmed that Robert had indeed been a fugitive, both “of ill fame and behavior” (male fame et conversationis).47 Rather than stating that Robert had entirely forfeited (omnino forisfecit) his holdings, as the 1317 roll indicated, the 1331 roll entry claimed more ambiguously that he “relinquished” (reliquidit) the tenements, and that the lord transferred them to Walter Hogges “for lack of tenants.”48 This left open the possibility that Robert’s kin may have had standing to assert a claim to the land at the time of the fugitive’s alleged forfeiture; most likely Thomas was still a minor in 1317, and perhaps the family departed abruptly due to Robert’s local infamy. The homage was then asked (it is unclear by whom) whether Robert had been indicted or convicted, answering in the negative and expressing confusion over whether fugitive status alone, without a conviction, would be grounds for forfeiture. This may have been the first time the issue had arisen in recent memory in Great Horwood’s court, in which case the relevant custom, assuming there was one, may not have been readily known. The question was submitted by the homage “to the discretion of the lord’s council” (super discretionem consilii domini).49 Three weeks later, Thomas de Salden and John and Joan le Carpenter returned to the court to hear the decision. The council declared that Robert de Salden’s withdrawal from the manor and his fugitive status were not reason for forfeiture, thereby contradicting the court’s 46 This appears to have been the case at common law. Henry de Bracton, On the Laws and Customs of England, trans. and ed. Samuel E. Thorne (Cambridge, MA: Belknap Press, 1977), 3:360-61. 47 The word “conversatio” might denote the nature of the people with whom Robert associated or, alternatively, his general manner of life. See Latham, ed., Dictionary of Medieval Latin from British Sources (London: Oxford University Press, 1975-2013), Fasc. II, s.v. “conversatio.” 48 Poos and Bonfield, Select Cases, 6. 49 On this procedural move, see Beckerman, “Procedural Innovation,” 218. 14 DRAFT earlier written decision.50 John was to recover expenses incurred in maintaining the tenements, valued at 7s., while Thomas would now be liable for all future fines, maintenance of the premises, and services. Equitable Considerations Did Thomas succeed based on a reinterpretation or reinvention of manorial custom, a determination that the 1317 forfeiture had been in error, or the court’s perception of the equities of the case? Charlie might encourage us to ask what else was going on in England in 1317. The fourteenth century, as Charlie reminds us,51 was punctuated by cataclysm, most notably the Black Death in mid-century, but also an earlier stretch of famine. Considering the timing of Robert’s forfeiture, it takes little imagination to paint a Jean Valjean-like image of a desperate father’s efforts to provide for his family after a third consecutive year of miserable harvests.52 “I heard men in that place make much moan,” reads a contemporary poem, “How they are miserable in their tilling; good years and grain are both gone, and they keep not here any saying 50 For the idea that the written record gave greater fixity to custom, see John Beckerman, “Toward a Theory of Medieval Manorial Adjudication,” Law and History Review 13:1 (1995): 12. Perhaps this was less true for more obscure custom, such as how to deal with forfeiture by fugitives; it is also possible Great Horwood did not have established custom on this issue. 51 See, e.g., Charles Donahue, “What Happened in the English Legal Justice System in the Fourteenth Century and Why Would Anyone Want to Know?” Southern Methodist University Law Review 63 (2010): 949-52. 52 See, generally, Ian Kershaw, “The Great Famine and Agrarian Crisis in England, 1315-1322,” Past and Present 59 (1973): 3-50. Kershaw observes that robberies, particularly of foodstuffs, dominated criminal prosecutions in Kent in 1316-1317. Ibid., 12. See also Barbara Hanawalt, “Economic Influences on the Pattern of Crime in England, 1300-1348,” American Journal of Legal History 18 (1974): 281-97. 15 DRAFT nor sing any song.”53 These were not easy years for England’s farming communities. An early fourteenth-century poem described the plight of the fugitive outlaw as especially dire, as he dared not approach his own hearth: “I may not return to the peace among my kindred,” bemoaned the literary outlaw, who observed that “the rich are ransomed, while the poor are emasculated.”54 Admittedly, the 1317 harvest marked an improvement over the previous two years, although England would not experience its first post-famine bountiful harvest until 1318.55 Nevertheless, desperation may have inspired Robert’s alleged wrongdoing, even if a somewhat improved harvest may have squelched the inquest’s tolerance of unlawful behavior. In fact, there is some evidence that the Great Horwood community historically took a fairly unforgiving stance toward those who failed to earn their keep.56 Of course, this is all speculation. Another possibility is that Robert simply abandoned his tenements, and perhaps his family, in Great Horwood to seek greener pastures elsewhere and avoid paying his debts; he was named as a debtor in an action as late as December 1318, more than a year after his forfeiture.57 The rolls 53 Thomas Wright, ed., Political Songs of England From the Reign of John to that of Edward II (London: J. B. Nichols and Son, 1839), 149 (“Ich herde men upo mold make muche mon, / Hou he beth i-tened of here tilyynge, / Gode ȝeres and corn bothe beth a-gon, / Ne kepeth here no sawe ne no song syng.”) 54 Ibid., 231-236 (...n’os à la pes venyr entre mon lignage; / Les riches sunt à raunsoun, povres à escolage.) 55 Kershaw, “Great Famine,” 13. 56 See, e.g., the decision in late July 1305, followed by similar rulings a year later, by Great Horwood’s free and villein tenants that “no one shall go about gathering grain who can earn half a penny a day and his food,” and that no one should “harbour such as carry away grain unlawfully.” Ault, Open-Field Farming, 86. These concerns continued in the immediate post-famine years and beyond. Ibid., 88-90. See also W.O. Ault, “The Vill in Medieval England,” Proceedings of the American Philosophical Society 126:3 (1982): 196; Ault, Open-Field Farming, 103. 57 On Robert’s debts, see Briggs, Credit and Village Society, 153, n.12. Robert may have married into the Great Horwood community; his surname likely derives from the hamlet of Salden, roughly five miles away in the parish of Mursley. See “Parishes: Mursley,” in History of the County of Buckingham, vol. 3, 401-6. Pushing against this is the appearance of a “Thomas de Salden” in the 1279-1290 hundred rolls for Great Horwood, possibly an ancester of Robert. See Rotuli hundredorum temp. Hen. III & Edw. I 16 DRAFT hint at this possibility, referring to Robert’s “withdrawal” (subtractio) from the tenements and ultimately concluding that this did not work a forfeiture.58 Robert’s condemnation as a fugitive in 1317, although recorded in stark terms in the manor roll, remains laden with ambiguity. The roll fails to record what, if any, offense he allegedly committed, and whether any action had been taken within or beyond the manorial court in response.59 This was not likely a deliberate omission, but rather reflects the terse style of clerical prose employed in manorial records; the reason for Robert’s fugitive status may not have appeared to be relevant when the 1317 roll was prepared, as no one in the court may have anticipated a later challenge to the court’s decision to declare Robert’s tenements permanently forfeit. Yet the reason for his fugitive status may have actually mattered. At common law, mere flight after an alleged felony did not result in immediate forfeiture of one’s lands.60 Typically land did not escheat to one’s lord unless one were convicted of a felony, although if contumacy ripened into outlawry, then escheat of lands and forfeiture of chattels might follow.61 As Bracton described it, an outlaw “forfeits everything pertaining to right and possession,” both inheritance (London: G. Eyre and A. Strahan, 1818), 2:336. Surname evidence is, admittedly, quite unreliable. Most intriguingly, Robert de Salden was cited by the Great Horwood court in 1311 for having drawn a customary tenant from the manor into an “alien court” a few miles away at Winslow, suggesting that Robert engaged in business outside Great Horwood and perhaps despaired of securing justice in his local manor court. See Briggs, “Seignorial Control,” 415, n.47. For this citation and hypothesis, I am grateful to Tom Johnson. 58 Poos and Bonfield, Select Cases, 6. Note that “fugitivus” did not necessarily refer to a fugitive from justice, but could also signify a runaway villein who abandoned a tenement. See Howlett, ed., Dictionary of Medieval Latin from British Sources, Fasc. IV, s.v. “fugitivus.” 59 I have been unable to find any record of Robert de Salden in the surviving Buckinghamshire gaol delivery records. 60 It could result in forfeiture of chattels, however. See Bracton, Laws and Customs, 2:362. 61 See ibid., 366-67. See also G.D.G. Hall, ed., The Treatise on the Laws and Customs of England, Commonly Called Glanvill (Oxford: Clarendon Press, 1993), 90. On outlawry’s effects, see Pollock and Maitland, History of English Law, 2:581. 17 DRAFT rights and tenements, while also dissolving any bonds of homage or fealty.62 According to Britton, a late thirteenth-century treatise, a felon’s heirs were to be entirely disinherited (desheritez de chescun heritage), and a felon’s wife would also not be able to hold any land in dower. Evidence from the plea rolls suggests that these rules were taken seriously.63 Of course, Robert was a villein holding customary lands, so it is unclear that common law rules would have governed or whether, in the alternative, his lord could have taken his lands under conditions that would not have merited escheat at common law.64 If the court did take cognizance of mitigating circumstances surrounding Robert’s alleged misdoing, this might explain its willingness to turn a blind eye to the 1317 “forfeiture”—perhaps no longer considered a forfeiture upon reexamination by the manor court—when Robert’s widow, Isabel, staked her dower claim in 1329. It may further explain the rapid turn of events in 1331, when the court made an about-face in upholding Thomas’ claim after he pointed out the court’s earlier willingness to grant his mother her dower in the tenements. Of course, the court may also have had limited patience for the calculated maneuvers of John le Carpenter, whose efforts to secure the tenements were undertaken in defiance of the wishes of his dying father-inlaw and may have been motivated by financial troubles of his own.65 In addition, the 1317 forfeiture had been declared by an inquest, most likely twelve men, and an inquest was again 62 Bracton, Laws and Customs, 2:363. 63 Francis Morgan Nichols, ed., Britton: The French Text Carefully Revised with an English Translation (Oxford: Clarendon Press, 1865), 1:37; Susan Stewart, “Outlawry as an Instrument of Justice,” in Outlaws in Medieval and Early Modern England: Crime, Government, and Society, c. 1066- c. 1600, eds. John Appleby and Paul Dalton (Farnham: Ashgate, 2009), 48-49. 64 See, e.g., Ault, “Community of the Vill,” 194-95 (describing how a miller was banned from a vill and had his lands confiscated after a jury found that he was “a very rebellious neighbor and a common malefactor unworthy of living in the vill”). See also Smith, “Some Thoughts on ‘Hereditary’ and ‘Proprietary’ Rights,” 107, 114. See also Poos and Bonfield, Select Cases, xcv, for examples of manor courts alternatively willing and unwilling to regrant land to heirs after forfeiture for felony. 65 See Ault, Open-Field Farming, 172 (John fined 12d. for default). 18 DRAFT employed in 1330 when Thomas initially tried to claim his father’s tenements; in 1331, on the other hand, the whole homage was consulted, and in turn consulted the lord’s council for guidance. It is possible that the extra procedural steps taken in the latter instance helped facilitate an optimal conclusion, all things considered.66 Recourse to the homage, and its deference, in turn, to the lord’s council, likely reflected continuing uncertainty about the justice of the matter and a desire to reach an acceptable consensus.67 Finally, the court may have been unwilling to hold a law-abiding widow and her son accountable for Robert’s misdeeds over a decade earlier. The same compassion that drove common law juries to undervalue felons’ chattels so as not to subject their families to excessive forfeiture may in this instance have pushed in favor of allowing Robert de Salden’s tenements to revert to his family’s possession. Conclusion Manorial rolls continue to hold great promise for illuminating how medieval English farming tenants understood the law, asserted legal rights, and accessed remedies for wrongs.68 Many breakthroughs in legal-historical understanding will result from wide-reaching data collection and analysis as historians mine court rolls for empirical evidence of manorial life and custom. The methodological approach I have taken here, combining fine-tuned textual parsing with large- 66 Beckerman has highlighted the first quarter of the fourteenth century as “the heyday of jury trial in English manor courts,” arguing that juries were seen to be ideal at bringing closure to disputes because they were well situated for “laying bare the truth of a matter and reaching a reasonable conclusion.” See “Procedural Innovation,” 212-14. Here, an inquest’s testimony may have paled in authority compared with the deliberation of the whole homage. 67 On the production of custom from the consensus of the homage, see Beckerman, “Toward a Theory of Medieval Manorial Adjudication,” 20. 68 For some hypotheses, see Paul Hyams, “What did Edwardian Villagers Understand by ‘Law’?” in Medieval Society and the Manor Court, 92-9. 19 DRAFT scale contextual pondering—considering issues of scribal phrasing alongside the exigencies of famine—prompts insights that might not be unearthed by quantitative analysis. By tracing a single narrative thread through the rolls and supplementing this analysis with recourse to other sources, one gains a sense of the deeply contextualized nature of local dispute resolution and the competing strategies used by litigants and adjudicators in the manorial court setting. In the case of this modest messuage and half yardland, we find the employment of a variety of fact-finders and adjudicators, whether inquests, the whole homage, or the lord’s council, at various stages of a dispute. An inquest might be well suited to finding particular facts and resolving specific narrow issues, such as whether Robert de Salden had been designated a fugitive and consequently forfeited his tenements at a previous session of the manor court. However, the whole homage might be the preferred adjudicator when a dispute raised matters that were more complex and involved issues of fundamental justice, issues that might therefore prove disruptive to the communal life of the manor, such as whether Robert’s son and wife should have any claim upon tenements allegedly forfeited years earlier. Where custom proved to be uncertain or had to be reconciled with the common law—as with regard to the question of whether fugitive status alone, without a felony conviction, might work a forfeiture—the homage might seek expert guidance from the lord’s council; this may also have taken pressure off the homage should a final verdict prove controversial. As one might expect in an early fourteenth-century setting, oral statements of custom were reinforced with recourse to the written record of past court proceedings. However, tenants did not always vouch the rolls and, even when they did, the rolls did not necessarily serve as the final word on a dispute. Rather, if the equities pushed in an alternative direction—in this instance, in favor of Robert’s widow and son—the rolls might offer simply one of many avenues toward resolution of a dispute. 20 DRAFT This case study of a single thread of evidence from Great Horwood reveals a manor court that, by design, allowed for tremendous flexibility and discretion in handling disputes, involved a wide cross section of local society in resolution of a contentious claim, and combined respect for the rule of customary law with a commitment to promoting equitable outcomes, even at the expense of reversing a purportedly final prior decision. We might indeed conclude that Great Horwood customary law incorporated within itself a notion of justice and equity, such that an outcome backed by oral custom and the written record might be rejected in favor of an alternative path that promoted fundamental fairness. 21