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Published online by Cambridge University Press: 12 February 2009
In the ‘English Historical Review’ for April (1893) Professor Ashley offers some criticisms upon the ‘Introduction to the Inquisition of 1517,’ contributed by me to the ‘Transactions of the Royal Historical Society’ for 1892. One object of that Introduction, it may be remembered, was to disprove the assertion of Professor Ashley that at the time when the evictions for inclosure began, and until ‘towards the end of the period,’ ‘the mass of copyholders’ had no legal security. In my view, the manorial records, the compilations of laws in the twelfth and thirteenth centuries, the practice of the courts, even the treatises of the jurists when critically scrutinised, led to the conclusion not merely that copyholders enjoyed protection in legal theory, but that their predecessors in title, the villeins, had done so before them. I drew no distinction in this matter between customary tenants and copyholders, as Professor Ashley appears to suppose, but showed that security extended even to villeins by blood, or ‘nativi,’ on custo-mary lands. Professor Ashley's proposition that ‘customary tenants’ and ‘copyholders’ were equivalent terms was never doubted by me, and is irrelevant to my argument. Indeed, it is assumed by me on the very pages to which he refers. ‘Mr. Leadam,’ he says, ‘draws a sharp distinction between “copyholders” on the one side and “tenants at will” on the other—a distinction which one may doubt whether the men of the sixteenth century would have felt so keenly.’ The distinction, as those who turn to the passage will see, is between ‘copyholders,’ used in Fitzherbert's sense as equivalent to customary tenants, who were ‘tenants at will according to the custom of the manor,’ and ‘tenants at will at Common Law.’
page 127 note 1 Trans. R. H. s. 1892, pp. 212, 217.
page 128 note 1 Tenures, § 82; cp. § 68. I even quoted the original law French of Littleton on p. 186, n. 1. The English version given above is that of Coke.
page 129 note 1 Trans. R. H. S. 1892, p. 185, n. 3.
page 129 note 2 Owen's Reports, T. T., 36 Eliz., in B. R. The same doctrine appears in Coke's Rep. Pt. IV. 24 i., M. T., 33 & 34 Eliz., Q. B.
page 129 note 3 Rolle's Air. I. 508, pi. 16, T. T., 39 Eliz., B. R. Rastell v. Tumor.
page 130 note 1 P. 163, ed. London, 1673. So in Eastcourt v. Weeks, Salkeld Rep. i. 186, Powell, J., treats waste as involving forfeiture at Common Law (1698). In modern text-books the law is laid down as without exception. Williams, Law of Real Property, 17th ed. pp. 427, 428.
page 130 note 2 M. T., 37 & 38 Eliz., C. B., Noy's Rep. p. 51.
page 130 note 3 I may cite a remarkable example in which, during the fifteenth century and under the usually indulgent administration of a wealthy abbey, copyholders were evicted ‘pro defectu reparacionis,’ although they could scarcely have been morally to blame. In the case of Kent v. Seynt John, heard by the Court of Requests in 1543–44, the history of the copyholds of the manor of Abbot's Ripton, Hunts, was carefully investigated. A witness, aged sixty-four years, deposed ‘that he hathe hard hys father saye that before the batayle whiche was calleyd Ester Daye ffeld, all the tenauntes of Abbottes Rypton were copie holders & held of the abbot of Ramsey. And the Northern men laye there so long before the ffelde was ffuwghten that they impoveryshed the countrey. And the tenauntes were fayne to yeld up theyre copye holdes, for that they were not liable to repayre theym. And then came other tenauntes & occupyed them as tenauntes at wyll, & they had the Rents abatyd,’ &c. This refers to the battle of Barnet, fought in 147 1. MS. Record Office, Court of Requests, Mr. Hunt's Calendar, Bundle 7, No. 10.
page 131 note 1 Trans. R. H. S. p. 256.
page 131 note 2 MS. B. M. f. 8. Furnivall's Introd. to Ballads from MSS. i. 24.
page 132 note 1 Trans. R. H. S. 1892, pp. 196–200, 256, 257, &c.
page 132 note 2 Ibid. p. 194.
page 132 note 3 Ibid. pp. 208, 209.
page 132 note 4 Vill. in Engl. p. 44, n. I.
page 132 note 5 Trans. R. H. S. 1892, pp. 195, n. I, 212, n. 1.
page 133 note 1 See Skeat's Engl. Diet. s. v.; Furnivall, in Bishop Percy's Folio MS., Ballads and Romances, vol. ii. pp. xxxiii ff.
page 133 note 2 For a reply to some other criticisms of Professor Ashley see p. 220, infra; and for an account of the special tribunals which extended protection to copy-holders in the fifteenth and sixteenth centuries, see an article by the author in the English Historical Review for October 1893, on ‘The Security of Copyholders in the Fifteenth and Sixteenth Centuries.’
page 134 note 1 See Preface, supra, pp. 128–131.
page 135 note 1 More, Utopia. Br. Cal. iv. 6043. 9. Ibid. 6183.
page 135 note 2 This prior was an active improver. Cp. Gaird, . L. & P. xiii. 1, 593Google Scholar, Norfolk t o Cromwell: ‘Has been at Castellacre where the lands have been by the late prior “advanced to the uttermost” and the farms let for many years’ (March 25, 1538, 29 Hen. VIII.).
page 135 note 3 This person is perhaps the Thomas Thorisby who was Mayor of Lynn in 1502 (Blomef.), and who is known to have been a land-jobber. See sub Rysyng-castell, p. 194, infra. He seems to have been constantly involved in litigation. In 1522 (January 21, 14 Hen. VIII.) he was sued by one Thomas Game in the Court of Requests (Appearances of Ct. Req., MS. R.O.). In 1534 he was defendant before the Star Chamber in Foster v. Thursby (MS. R.O., X C.P. vol. xv. p. 197, 26 Hen. VIII.):–Petition by Adam ffoster and Anne his wife against Thomas Thursby. Sets out that T. T. was seised of one third part of a tenement, farm, and lands in.Gayton, * Norfolk, being tenant in common with petitioners, the other two thirds having been settled by William Cobb, father to Anne Foster, upon her at her marriage, the whole being forty acres; that petitioners had let the farm to Geoffrey Cobbe, W. Cobb's son and heir; that T. Thursby had been guilty of various vexatious proceedings against G. C, and had on April 10, 26 Hen. VIII., forcibly entered the lands with twenty persons and cut down forty-three cartloads of wood, hoping to force Geoffrey Cobb to leave the farm.
P. 198. The answer of Thomas Thurresby esquyer to the byll of compleynte of Adame ffoster and Anne hys wyff. Sets forth that John ffyncham, Esq., and another were seised, to the use of T. T. and his heirs, of one third part of the forty acres, and that he T. T. with consent of his feoffees peaceably cut down twenty-nine cartloads of wood and carried them ‘to his mannor place at Geyton.’ Denies alleged vexatious conduct towards Geoffrey Cobb.
In 1540 he was sued in the Court of Requests by the inhabitants of Middleton, probably for encroachments on their rights as tenants:
‘viij° die Novembris a° xxxij°. Eodem die.–Henricus Castell de lee Clyffordes Inne generosus nomine Thome Thorsbey personaliter comparuit coram consilio domini Regis apud Westm. virtute jniunccionis dicto Thome date per Edmond Benyngfeld et ali. in quadam causa contra eum motata ex parte inhabitanc. de Middelton et super consideracionem hostencam [sic] hostendamque [sic] conceditur commissio Jorii Dedicke Humfredo Canvyle ad recipiendum responsum dicte [sic] Thome et ad certificandum xva Martini proximi.’ (Court of Requests Orders and Decrees, vol. vii., 32 Hen. VIII.–I Ed. VI.)
page 136 note * Hundred of Freebridge Marshaland.
page 137 note 1 The Act ol 1529, prohibiting religious persons from farming for profit, left a loophole for evasion by the numerous class of exemptions allowed under it. There is much evidence, also, that on the eve of the Dissolution the religious houses granted many leases, and the petition of the rebels suggests the suspicion that they were frequently to clerical tenants.
page 137 note 2 September 19, 1536, Norfolk to Cromwell: ‘I think the organ maker deserves death, for he intended to make an insurrection, which were more difficult to do here [i.e. in Norfolk] than in any other shire, for “we be too many gentlemen here to suffer any such business.”’ Gaird, . L. & P. xi. 470Google Scholar.
page 137 note 3 April 28, 1537 (Disaffection in Norfolk): ‘Ralph Rogerson said “the gentlemen had all the farms and cattle in the country in their hands, and poor men could have nothing.”’ Gaird, , L. & P. xii. 1056Google Scholar.
page 138 note 1 This total includes five ‘mansiones,’ inferred upon grounds given in the notes to have been destroyed by ecclesiastics, and five similarly inferred to have been destroyed by laymen at Choysell, six inferred to be the number intended by ‘diuersa tenementa’ destroyed by laymen at Holkeham, and three the number intended by the same phrase as destroyed by ecclesiastics at Schadewell. If these conjectural cases be all excluded, the argument in favour of the ecclesiastics becomes strengthened.
page 139 note 1 This is the average given in the Yorkshire return. See sub Soulhcowton and Sprotley, infra.
page 139 note 2 If the ‘putting down of a plough’ is interpreted to imply the destruction of houses, though no mention is made of such destruction, the total displacement rises to 550 persons. See infra, pp. 163, 220.
page 140 note 1 See Kett's Rebellion in Norfolk. Russell, F. W., London, 1859, pp. 48–51Google Scholar.
page 140 note 2 ‘A comparison between champion country and severall.’ Ed. Mavor, W. (London, 1812), 9, p. 206Google Scholar.
page 162 note 1 The volume Lansd. i. has been more than once paginated. The first leaf, on which is the above indorsement, is numbered 124, and also 153, both in modern handwriting, and ‘No. 54’ apparently in contemporary script. It is generally cited as Lansd. i. 153, but I have given at the head of each entry the pagination of my transcript, to which references were made in the Introduction (Trans. R.H.S. 1892). In the notes to the text I have, for th e convenience of the reader, made my references to the pagination of this volume.
page 166 note 1 It must be borne in mind that the word ‘carucate’ was used in two senses, sometimes for the ancient term ‘hide,’ normally of 120 acres, all of which in turn came under the plough, sometimes of the actual tillage areas. Cf. p. 190, infra.
page 172 note 1 Gaird, . L. & P. XIII. i. 1519, 5Google Scholar. Sir Thos. Crumwell, lord Crumwell, keeper of the Privy Seal. Confirmation of his estate in the manors of Northelenham alias Northelmham and Beteley, Norf., with lands in Northelmeham, Beteley, Burgrave and Brisley, Norf., which belonged to the bishopric of Norwich, and were assured to him in tail male by an Act of Parliament 28 Hen. VIII.
Also grant in fee simple of the reversion of the premises with all liberties and franchises enjoyed therein by Richard, Bp. of Norwich, and licence to alitnate them to Thos. duke of Norfolk, earl marshal of England. Del. Westm., 4 July, 30, Hen. VIII.–S. B. Pat. p. 2, m. 16.
page 182 note 1 Cp. sub Skulthorp, , p. 217, infraGoogle Scholar.
page 182 note 2 The mention of Elyce as a Baron of the Exchequer in 1520 clears up a point of difficulty in his biography. ‘Dugdale,’ says Foss (‘Judges of England,’ v. 159) ‘defers his appointment till Michaelmas, 1527, but positive evidence exists of his holding the office four years before.’ It can now be antedated three years further.
page 182 note 3 Left blank in MS.
page 183 note 1 The judgments of the Court of Star Chamber for this period have perished.
page 189 note 1 Cp. pp. 166, 167, supra.
page 206 note 1 Court of Requests (Mr. Hunt's Cal., Bdle. 8, No. 265). Common Rights and Inclosure.–Payne and others v. Goldyng and others. (No date.)
Petition of the freeholders, copyholders, and inhabitants of Great Dunham, Norfolk.
Recites former bill of complaint by same plaintiffs, showing their right of common ‘for the greate cattell’ in the common of Great Dunham, ‘conteyning by estimacion iij hundred acres’; that Thomas Wyngfeld, Esq., lord of the manor, had a foldcourse on this common of 740 sheep in a herd, ‘by the lycence and sufferaunce of your said subiectes & no otherwyse’; that T. Wyngfeld let this foldcourse to John Callybutt, Esq., who then kept 800 sheep there; that T. Wyngfeld sold part of the manor to Sir Thomas Goldyng, Knt., and the residue to him in remainder; that Sir T. G. inclosed part of the manor so bought, and excluded the beasts of the petitioners from the shack, though he continued to pasture sheep on the common; that T. Wyngfeld and Sir T. G. have ‘raised another ffold course of iiij hundred shepe’ on the same common in addition.
Issue of commission by ye King to ‘Sir Rd. Sowthwell, Sir Nicholas Le Strange, Sir Thomas Hollys knightes; Robert Holdyche esquier & James Downes esquier.’
Award of Commissioners.–Defendants not to pasture more than 740 sheep, to be kept in one flock together, ‘and not in too flockes nor in severall partes.’ The recent inclosures to be thrown open, and shack to be allowed on them to th e inhabitants.
Agreement of the defendants to the award.
Sir T. Goldyng, now sole owner of the manor of Great Dunham, retains 800 sheep in the fields of Dunham; has not laid open the inclosures. Petitions for letters of Privy Seal to compel Sir T. G. to fulfil terms of award.
apge 220 note 2 This use of ‘villa' disposes of Professor Ashley's contention in the English Historical Review for April 1893, that the putting down of a ‘villa’ implied a great displacement of population which must necessarily have included copy-holders. For further answer to this, see an article by the writer in the English Historical Review for October 1893 on ‘The Security of Copyholders in the Fifteenth and Sixteenth Centuries.’
page 221 note 1 As may be seen in the Record Office. See Introd. p. 175, Trans. R. H. S, 1892.
page 223 note 1 Where two numbers are given, that in brackets is the number if the doubtful cases are included. The totals will then be obtained by adding the bracketed figures of the columns giving the ecclesiastical areas to the appropriate unbracketed figures of the columns giving the areas upon lay manors.
page 223 note 2 Omitting the ½.
page 224 note 1 Where two numbers are given, that in brackets is the number if the doubtful cases are included. The totals will then be obtained by adding the bracketed figures of the columns giving the ecclesiastical areas to the appropriate unbracketed figures of the columns giving the areas upon lay manors.
page 224 note 2 Omitting the ½.
page 229 note 1 i.e. actually specified.
page 229 note 2 i.e. implied or mentioned.
page 229 note 3 Here I have reckoned by the number of ploughs put down, at four persons to a plough.
page 229 note 4 i.e. at four persons to a messuagium.
page 229 note 5 i.e. at four persons to a house. See next one.
page 229 note 6 This must have included a greater number than sixteen, or four to a plough. I have, therefore, given the average of five for each messuagium and three for each cotagium = 32. The exact average for the messuagium in the North Riding is 4½.
page 255 note 1 Trans. R.H.S. 1892, and cp. supra, pp. 128–131.
page 262 note 1 Trans. R. H. S. 1892, p. 191.
page 274 note 1 The intervening folios of the Lansd. MS. contain Hants and London.
page 275 note 1 The MS. is bound out of order, a page of Staffordshire being followed by Hampshire and London, in consequence of a confusion between Staff, and Southampt. I have brought together here the separated leaves of Staffordshire.