“Is this the fine of his fines, and the recovery of his recoveries, to
have his fine pate full of fine dust? Will his vouchers vouch him no
more of his purchases, and double ones too, than the length and breadth
of a pair of indentures?” Thus the Prince of Denmark moralising in the
graveyard scene in Hamlet over the skull of a supposed lawyer: with
more to the same effect, all showing that Shakespeare had a knowledge
of law terms remarkable in a layman, and that he used them with curious
precision. In the huge body of Shakespearian literature there are
special works (one by Lord Chancellor Campbell) on the fact, which
has been used to buttress up the Baconian authorship theory (indeed,
it is the only positive fact at all in point). Again, it has been
conjectured that the dramatist spent some time in a lawyer’s office,
and that phrases from the deeds he engrossed stuck in his memory. It is
far more likely that, being the man of his age he was, he would read
in and round the law as well as much else for its own sake, and that
fines and recoveries were so odd in themselves, and so excellently
illustrative of English history and procedure, that they fairly took
his mighty fancy.

Recoveries were already some two hundred years old in his time, and,
to judge from the tone of the passage, people must even then have held
them in derision. But they were to last full two hundred years more;
for not till 1833 did they vanish from the scene. Recoveries were
methods of disentailing an estate by means of a complicated series of
fictions. They arose in this way:–Before 1285, when land was given
to a man and the heirs of his body, the judges ruled that, the moment
a son was born, the father held the estate as a simple freehold,
which he could sell or make away with very much as he chose. The
great landowners were ill-content at this; they meant their tenants
to enjoy their estates only as long as they rendered useful service
in return, and if issue failed a man, they thought the land should
revert to his lord on his death. Hence in that year an act procured
by their influence, called _De Donis Conditionalibus_, or the Statute
of Westminster the Second (13 Ed. I., c. 1), created the Estate
Tail (_i.e._ _Taillé_, or restricted). It provided that land given
to a man and his heirs as above, reverted to the original donor on
failure of the donee’s issue. Blackstone waxes eloquent over the evils
that ensued. Children declined obedience to a father who could not
disinherit; farmers lost their leases, which had no force against the
heir; and creditors were defrauded of their debts, which constituted
no charge on the land, nay, treasons were fostered, insomuch as the
traitor’s interest lapsing at his death, nothing was left for the king
to seize. Yet it was not till the reign of Edward IV. that a device
was found to evade the Statute. _Taltarum’s Case_ was decided in 1472.
It is loosely said that this established the validity of recoveries,
but they were in use some time before, and Sir Frederick Pollock will
have it that it was the oddity of the name which made a landmark
of the decision. A Recovery was a sort of friendly or fictitious
action, whereby the estate was adjudged to an outsider, whose claim,
though baseless–if one did not look beyond the four corners of the
action–was acquiesced in by the nominal defendant.

The mediæval lawyer was usually a priest, and he had found those
entails grievous obstacles in the way of the Church’s aggrandisement.
Perhaps, too, as the country grew in wealth, so rigid a law of
settlement bore hard on an ever-waxing commercial class. To repeal
the Statute seemed impossible, but the great landowners, while proof
against force and impermeable to argument, were not hard to outwit. A
legal complication passed their understanding; and this one, however
brazen, had the patronage of many powerful interests. Thus, and thus
only, may the fact of their acquiescence be explained.

And now let us trace out the steps in a common recovery with “double
voucher.” The judges had already made one preparatory breach in the
law. A tenant in tail could dispose of his estate if he left other
lands of the same value; for these his heirs held under the same
conditions as the original property. The principle of this decision was
ingeniously used as a lever to overthrow the system.

Suppose A, tenant in tail, had contracted to sell his land to B: he
began by formally disposing of it to C, usually his attorney, and
technically called “Tenant to the _præcipe_,” or writ. Then B commenced
an action in the Common Pleas against C to recover the estate in
question, which, he asserted, had been wrongfully taken from him. C,
instead of defending the action, “vouched to warranty” A: that is, he
called in A to defend, on the ground that the said A had covenanted to
support his title; but A, instead of defending the action, “vouched to
warranty” D. This last, called the “common vouchee” (in the form in
Blackstone he appears as “Jacob Morland”), was always the “Crier to the
Court,” and for playing his part received the modest fee of fourpence
on each recovery. At first he (Jacob) made a great show at fight; he
denied all B’s statements, and “put himself upon the country:” _i.e._
he demanded that the case should go before a jury for trial. B then
craved leave “to imparl” (_i.e._ to have a private conference with
Jacob), and the proceedings were solemnly adjourned. When they were
resumed Jacob was not to be found: “he hath (it was adjudged) departed
in contempt of the Court.” Evidently, or so it seemed, he had no answer
to make. Then B’s claim was allowed; C was to have of the lands of A
a quantity equal to what he had nominally lost; whilst A, in his turn,
was to have the same remedy against Jacob, who, having no means at all,
cheerfully accepted much paper responsibility. Then a writ was issued
to the sheriff of the county wherein the lands were situate, directing
him to give possession to B, whose title was constituted by a record of
all the aforesaid transactions.

As the centuries went by the proceedings became ever less substantial,
the action was always commenced by the issue of a writ in the usual
way, but most of the other steps were only taken on paper. Sir
Frederick Pollock says, that if the disentailer were a peer, a sergeant
was actually briefed to move the court in the matter: also, one must
note that lands held from the crown were never subject to this process
(nor can they now be disentailed without a special act of Parliament).
By another barefaced fiction, colonial property might be disentailed
in England. The deed roundly asserted that the island of Antigua (or
wherenot) lay in the parish of St Mary, Islington–the operation of
this geographical miracle giving jurisdiction to the Court of Common
Pleas. One would suppose that something simpler might have served; but
though laymen jeered, lawyers regarded these quaint formalities with
strange reverence. My Lord Coke mentions with solemn reprobation a
counsel named Hoord who scoffed thereat in the House of Lords, and whom
a judge gravely rebuked as not worthy to be of the profession of the
law, for that he “durst speak against common recoveries;” and as late
as 1820, Thomas Coventry, Esq., of Lincoln’s Inn, concludes his learned
treatise on the subject with an eloquent if slightly confused protest
against any change, “which could know no end but an apparent confusion,
or clearing away a path for the access of some modern Pretender to
strip the ivy from the venerable oak of our boasted constitution, the
only emblem that remains of its antiquity and endurance.”

And now for a word on fines. These were so called for that they made
an end of a controversy. They were simpler and even more ancient than
recoveries. A fictitious action was begun by the purchaser against the
vendor of an estate, wherein the latter soon gave in: the case was
compromised, a fine was paid to the Crown, upon the Court giving its
consent to this termination of the proceedings, and the record thereof
became the purchaser’s title. They were likewise used to bar entails,
though they were not so effectual as recoveries. One of the first Acts
of the Reform Parliament of 1833 was the Statute for the Abolition of
Fines and Recoveries. It was a mere question of procedure, for the
law itself remained unaltered: but disentailment was effected by the
enrolment of a deed in Chancery. And now the dust lies thick on shelves
of text-books–a whole system of learning, full of intricate details,
the creation of centuries of perverse ingenuity.

And the land-owners? These, too, long since availed themselves of the
dark and subtle devices of the conveyancer. Sir Orlando Bridgman, a
great lawyer of the Commonwealth, and finally Chief Justice of the
Common Pleas under Charles II., invented and perfected the system of
family settlements which to-day secures the secular interests of our
great historic houses, as well as, if less directly than, any enactment
could do.

Has chance or necessity ever opened to you the charter-chest of the
respectable solicitor in some country town? Then, among his records,
you have noted an interminable series of parchment volumes–very thick,
very closely written, some centuries old, and one in current use. These
are the court-rolls of the Manor of Wherenot. If you can spell out the
beautifully written mediæval characters, you are sure to light on many
a quaint record of by-gone folk and their ways, for, better than aught
else, the manor and its muniments preserve for us the English past.

Manors, they used to say, arose in this fashion. A great lord obtained
a piece of land from the King; part he disposed of to tenants who held
of him in freehold (this sub-infeudation was stopped by the statute
_quia emptores_ in 1290); the rest was his domain, on part of which he
built the manor house, another part was cultivated by villeins, then
the cotters had dwellings with portions of land, and the residue was
waste, where the folk of the manor pastured their cattle, gathered
fuel, and made their ways. Sometimes these villeins were slaves, but
each had his patch of soil, wherefor he rendered some servile office to
his lord, ploughing his land, garnering his crops, or such like. The
business of the manor was transacted in two courts, the Court Baron
and the Customary Court. The first was attended by the freeholders,
who themselves constituted the Court; the second by the villeins,
who merely hearkened to and witnessed the doings of the lord or his
steward. When a villein died, the fact that the new tenant had such and
such a field on condition of rendering so many days’ labour yearly was
noted in the records or roll of the Customary Court, and this roll,
or a copy of it, becoming his title, he was dubbed a copyholder. In
theory he was a mere tenant at the will of the lord, but time fettered
the lord’s will, until the principle was evolved that it must be
exercised according to the custom of the manor, for “custom” as Lord
Coke put it, “is the life of the manor,” and so it came about that the
holder had fixity of tenure while he did his service. His position
steadily improved, the slave became free, the servile toil a money
payment, and now the court agenda merely register changes of title.
This account of the manor may serve for description, but does not
represent the real origin, which has not yet been exactly ascertained.
It was a fragment of Old England, with a lord usually of Norman race
as head, and the relations between head and members elaborated and
controlled by the theories and devices of the mediæval lawyer. As
manorial law was custom, old local usages were preserved unaltered;
thus, whilst the root idea of feudalism was that the eldest son should
inherit his father’s land, and the manor itself did so descend, within
it an extraordinary diversity of usage obtained. By a custom similar
to that of Gavelkind (in Kent), the copyholder’s estate was sometimes
parted equally among all his sons. In other places, Borough-English
prevailed, that is, the youngest son took everything, to the exclusion
of his elder brothers; nay, by an odd application of the maxim “better
late than never,” a posthumous child ousted the brother already in
possession; or, again, the widow or widower inherited. When the tenant
died, the lord had a right to seize his best chattel (usually a beast),
this was called a Heriot, and it is yet here and there exacted. Many
customs are old Saxon, many customs were invented, or at any rate
twisted into fantastic rights from mere whim or a not very cleanly
sense of humour, but here one must often merely accept the fact, for to
try it by the rule of right reason were absurd.

Most manors were held of the Crown, in return for services sometimes of
the oddest character; thus, Solomon De Campis (or Solomon At-Field)
had land in Kent on condition that, “as often as our lord the King
would cross the sea, the said Solomon and his heirs should go along
with him to hold his head on the sea, if it was needful;” and certain
jurors solemnly present on their oath that “the aforesaid Solomon fully
performed the aforesaid service.” Our early kings provided against
every possible contingency. One tenant enjoyed land by the service
of holding the King’s stirrup when he mounted his horse at Cambridge
Castle. Another must make _hastias_ in the King’s kitchen on the day
of his coronation. The glossaries are dumb as to this mysterious
dish, though the learned darkly hint at haggis! Or was it “a certain
potage called the mess of _Giron_,” which, being enriched with lard,
was called _Maupygernon_–which last is possibly mediæval Welsh for a
haggis? Thomas Bardolf, who died, lord of Addington, in 5 Edward III.,
was pledged to compound three portions of this dainty dish against
Coronation Day, and serve them up smoking hot, one to the King, one
to his Grace of Canterbury, and the third “to whomsoever the King
would.” Other manors were held on the tenure of presenting to the
King a white young brach (“lady the brach” of _King Lear_) with red
ears; of delivering a hundred herrings baked in twenty pasties; of
finding the King a penny for an oblation, whenever he came to hear
mass at Maplescamp, in Kent: gifts of roses, falcons, capons (which
last dainties your mediæval sovereign held in special favour), were
abundant. But how to riddle this one? The manor of Shrivenham, in
Berks, was held (_temp._ Edward III.) by the family of Becket, whose
head, whenever the King passed over a certain bridge in those parts,
must present himself with two white capons, whereto he directed the
royal attention in choice mediæval Latin, “Behold,” he said, “my lord,
these two capons, which you shall have another time, but not now,”
which pleasantry reminds one of the current vulgarism, “Will you have
it now, or wait till you get it?” The service of the Dymocks, owners of
Scrivelsby in Lincoln, as King’s champions, and of the Duke of Norfolk,
as Earl Marshal of England, curious enough in themselves, are too
notorious for this crowded page.

A few quaint tenures are of quite modern origin. Thus the honour of
Woodstock (an honour was a lordship over several manors: so “Waverley
Honour” in Scott’s great romance) is held by the tenure of presenting
a banner each second of August at Windsor Castle; that being the
anniversary of Blenheim, fought in 1704; and on each 18th of June the
Duke of Wellington must likewise send to the same place, for the estate
of Strathfieldsay, a tri-coloured flag to commemorate Waterloo. The
last century legal antiquary pricked up his ears at a fine scandal
which he fondly imagined in connection with the manors of Poyle and
Catteshill, both near Guildford. Their holders were bound to provide
a certain number (twelve in one instance) of young women, called
_meretrices_, for the service of the royal court. Dry-as-dust shook
his solemn head, invented pimp-tenure (a “peculiarly odious kind of
tenure” he explained), and the forerunner of the man who writes to _The
Times_ (it was then to the _Gentleman’s Magazine_) cracked some not
particularly choice jokes on the subject. A wider knowledge restored
the moral character of the King, his lords, and the much-slandered
young women, whose decent dust may now repose in peace. In mediæval
Latin the word was widely used for the female servant general or
special, and these were, it seems, neither more nor less than

Manors of an early date were ofttimes held under other manors on
equally whimsical conditions. A snowball at summer and a red rose at
Christmas are extravagantly picturesque. A hawk was a common rent; but
in one case it was carried to the Earl of Huntingdon’s house, by the
yielder, attended by his wife, three boys, three horses, and three
greyhounds; and these must be housed for forty days at the earl’s
expense, while his countess must give the lady her second best gown.
Again, the tenant of Brindwood in Essex, upon every change, must come
with his wife, his man, and his maid, all a-horseback to the rectory,
“with his hawke on his fist and his greyhound in his slip”; he blows
three blasts with his horn, and then receives curious gifts, and
thereafter departeth. The lord of the Manor of Essington, in Stafford,
must bring a goose every New Year’s Day to the head manor-house at
Hilton. Here he drives it about the fire, which Jack of Hilton blows
furiously, and (one regrets to add) most improperly. But Jack may be
forgiven, for he is but “an image of brass about twelve inches high,”
whose description you read at length in old Thomas Blount, the great
recorder of all these mad pranks.

The holding of Pusey in Berks by the Pusey Horn, gifted, it is said,
by King Canute, is well-known. Sir Philip de Somerville, knight, was
bound to hunt and capture the Earl of Lancaster’s _greese_ (wild swine)
for my lord’s larder upon St Peter’s Day in August. This he did till
Holy-Rood Day, when he dined with the steward, and after dinner “he
shall kiss the porter and depart.” This same Sir Philip de Somerville
held the Manor of Whychenover at half terms from the Earl on condition
that there ever hung in his hall one bacon flitch to be assigned to a
happy married couple yearly in Lent, after a variety of ceremonies like
those in the more famous case of Dunmow: the disposal of the flitch
there being likewise according to “the custom of the manor.”

In the customs that made up the inner life of the manor one finds a
diversity too great for classification. However, those old English
folk were a merry lot; with usages not sad nor savage, but having much
sensible joy in good meat and drink. At Baldock, in Hertfordshire,
the Customary Court was holden at dinner-time, whereto every baker and
vintner within the bounds must send bread and ale which the steward and
his jury “cam’ to pree,” and presently gave their verdict “if these
be wholesome for man’s body or no.” To the Manor of Hutton Conyers
there was attached a great common, where many townships pastured their
sheep; and the shepherd of each township “did fealty by bringing to the
Court a large apple pie, and a twopenny sweet cake.” For refreshment,
“furmity and mustard, well mixed in an earthen pot, is placed before
the shepherds, which they sup with spoons provided by themselves, and
if any forget his spoon then, for so the customary law wills it, he
must lay him down upon his belly, and sup the furmity with his face to
the pot or dish.” And the custom further permits the bystanders “to dip
his face into the furmity,” to the great delight of all present. To
finer issues is the money provided by Magdalen College, Oxford, for
certain manors of theirs in Hampshire, _pro mulieribus hockantibus_, as
the dog Latin of the college accounts hath it. On Hock Day, annually,
“the women stop the ways with ropes, and pull passengers to them,
desiring something to be laid out in pious uses”: the men having hocked
the women after the same fashion the day before. There are traces of
this usage further afield than Hampshire. Not less jovial were the
tenants of South Malling, in Kent, who were bound to pay scot-ale,
which fund they agreeably expended in “drink with the bedel of the Lord
Archbishop.” The case of Stamford, in Lincoln, is noteworthy as showing
the origin of one peculiar custom. In the time of King John, William,
Earl Warren, was lord of the place. One day he saw from his castle wall
“two bulls fighting for a cow in the castle meadow;” their bellowing
attracted all the butcher’s dogs in the place; and these, in company
with a host of rag-tag and bobtail, chased one of the champions in
and out the town till he went mad; all which so delighted Earl Warren,
that he forthwith gifted the common to the butchers on condition that
they provided a mad bull six weeks before Christmas Day, “for the
continuance of that sport for ever.”

It is impossible even to conjecture the origin of other customs. In
most manors, when a copy-holder died, his widow had in free-bench (or
what the common law calls dower) the whole or part of his lands. There
was one restriction: she must remain “sole and chaste.” Yet, if she
forgot herself, her case was not altogether past praying for in the
Manor of Enborne in Berkshire. At the next Customary Court she appeared
strangely mounted upon a black ram, her face to the tail, the which
grasping in her hand, she recited, sure the merriest, maddest rhyme it
ever entered into the heart of man to conceive–

“Here I am
Riding upon a black ram”—-

Alas, that the rest must be silence! The _Spectator_, greatly daring,
gives it in full; but that was as far back as November 1st, 1714. A
like custom ruled the Manor of Kilmersdon, in Somerset, where the
doggerel, if briefer and blunter, is at least equally gross. And here
one must refer to the _jus primæ noctis_, that lewd historic jest
which, in England at any rate, was ever a sheer delusion. True that on
the marriage of a villein’s daughter a fine was paid to the lord, but
this was not to spare her blushes, but as compensation to him for the
loss of her services–inasmuch as she took the domicile of her husband.
Nay, the custom of the manor usually made for morality. There was a
fine called child-wit exacted on the birth of an illegitimate child,
sometimes from the infant’s father, or, again, from the father of its
mother. Nay, in one or two places the unlucky lover forfeited all his
goods and chattels. On the other hand a curious privilege attached to
an oak in Knoll Wood in the Manor of Terley in Staffordshire: “In case
oath were made that the bastard was got within the umbrage or reach of
its boughs,” neither spiritual nor temporal power had ought to say, and
the man got off scot free.

The curious tenacity of the manorial custom is well shown in the case
of Pomber in Hampshire: the Annual Court, in accordance with immemorial
usage, must be held in the open air, but the inconvenience of this was
obviated by an immediate adjournment of the proceedings to the nearest
tavern. The records were not kept on parchment, but “on a piece of wood
called a tally, about three feet long and an inch and a half square,
furnished every day by the steward.” In time these strange muniments
became worm-eaten and illegible; and, as occupying much needed room,
were thrown to the flames by the dozen. (It will be remembered that the
old Houses of Parliament were set on fire and destroyed on the burning
of the exchequer tallies, October 1834.) Some of the survivors were
produced as evidence in a case heard at Winchester, which fact provoked
“a counsellor on the opposite side of the question” to dub it “a wooden
cause.” The obvious retort–that his was a wooden joke–seems lacking;
but possibly this gem of legal humour emanated from the Bench: how
often one has seen its like!

Still stranger was the Lawless Court of the Honour of Raleigh: it
was held in the darkness of cockcrow; the steward and the suitors
(i.e., those bound to attend the Court) mumbled their words in scarce
audible fashion; candles, pens, ink, were all forbidden; for, as the
authorities vaguely put it, “they supply that office with a coal.” To
ensure a punctual attendance, the suitor “forfeits to his lord double
his rent every hour he is absent.” The learned Camden affirms it was
all to punish the aboriginal tenants for a conspiracy hatched in the
darkness of the night; again he sees in it a remnant of an old Teutonic
custom; and in the end you suspect that he knows as little as yourself.

Then there was the white bull which the tenants of the monks of Bury
St Edmunds were bound by their leases to provide, that childless
women might present it to the shrine of the martyred king of East
Anglia; there was the fine called “thistletake,” which the owner
of beasts crossing the common, and snatching at the “symbol dear,”
must pay to the lord of the Manor of Halton; there are the “three
clove-gillieflowers” which the tenants of Hame in Surrey shall render
at the King’s coronation; there are all sorts of minute details as to
house-bote and fire-bote, and common of piscary and turbary. One more
custom and we have done. In the time of Richard the Lion-heart, Randal
Blundeville, Earl of Chester, was on one occasion sore pressed by the
Flintshire Welsh. He summoned to his aid his constable of Cheshire,
one Roger Lacy, “for his fierceness surnamed Hell.” It was fair-time
at Chester, and Roger, putting himself at the head of the motley crowd
marched off to his relief. The Welsh heard, saw, and bolted, and the
grateful earl there and then promulgated a charter granting to Roger
and his heirs for ever, “power over all fiddlers, lechers, light
ladies (the charter has a briefer and stronger term), and cobblers in
Chester.” Under Henry VII. we find the then grantee exacting from the
minstrels (_inter alia_) “four flagons of wine and a lance,” whilst
each of the aforesaid ladies must pay fourpence on the feast of St
John the Baptist. Under Elizabeth, various acts were aimed at rogues,
vagabonds, and sturdy beggars, but always with a saving provision as
to this Chester jurisdiction, and in later times the Vagrant Act (17
George II., cap. 5) had a like reservation.