This section contains descriptive information about the estate records. To view the estate source materials, please go to the estate records in the documents section.
The documents produced by the owners of estates are the most voluminous of English records. This is partly because property and property law lay at the heart of English law and society. It is also because the meaning of an 'estate' was much wider and more embracing than it might be today. It encompassed not only rights in objects, land and housing, but also rights in and over people, for instance the rights to certain services and the rights to hold courts. Thus a manor consisted not only of such things as 'house, arable land, meadow, pasture, wood, rents, advowson...., but also of 'services and of a court baron.' (Jacob 1744:s.v.manor). Thus when we survey the records of an estate we are often dealing with matters with little direct bearing on rights in land.
The rules which governed the holding and transmission of estates, as well as the decisions in the courts held by individuals who were lords of an estate, were based on a mixture of the common law and local custom. The principles upon which law and custom operated were very similar. The basic difference was that customs were specific to certain places, while general customs constituted the common law. A custom must be ancient, must have continued without interruption, must be certain and must be reasonable. It must also apply to a group of people, not just one individual, and must not be against the King's prerogative. We shall see some of these principles in action in the ensuing description.
We can very roughly divide the owners of estates into two categories, those who held directly of the king, either as lords of manors or as holders of 'freeholds', and those who held of some intermediary lord. The latter consisted mainly of those who held of a lord of a manor, leasing a house or part of a demesne, or holding by copyhold or customary tenure. The registration, trying and transmission of these various titles absorbed a great deal of the time of the contemporary courts and created vast quantities of records.
Lords of manors also created, through their stewards and bailiffs, a number of other major classes of records. They needed to know what their rights were, so they conducted frequent surveys of various kinds. They needed to know what their income, expenditure and profit was, so they kept elaborate accounts. Finally, the various courts which they kept required a record of their decisions. We may look at these categories of records in more detail, especially as they have survived for Earls Colne.
The foundation for all successful holding of estates was an accurate assessment of the resources and rights held. Detailed instructions on how to make such descriptions had been widely available from at least the late twelfth century. There were, in theory, five different and overlapping ways in which estates were surveyed. There were 'extents' or terriers, which listed holdings, duties of tenants and sometimes described the crops and livestock. There are numerous extents, some of them attached to inquisitions post mortem in the Public Record Office, from the thirteenth to the seventeenth centuries. As these became more elaborate, and topographical descriptions began to be given with the names of adjacent owners, these came to be called 'surveys' in the sixteenth century.
The final method was to add a map. These are rare in the sixteenth century, and therefore we are exceedingly fortunate to have a fine map for Earls Colne made in 1598. But maps become more common in the seventeenth and eighteenth centuries.
These general descriptions were supplemented by two other devices. One was termed a 'rental'. This gave the tenant's name, his holding and the rents and services due from him. These rentals were probably made, or at least renewed, each year, in order to make it possible to ensure that the maximum profits were flowing in from the manor. They were made throughout England from at least the thirteenth century.
In Earls Colne, the earliest surviving rental for Earls Colne manor was made in 1395, for Colne Priory in about 1400. Between then and 1750 another 17 rentals, either for a single manor or for both, have survived. They are sometimes written in house order within the village and can hence be used in topographical reconstruction.
A final description is the 'custumal', which sets out the customs of the manor, for example the rights of widows or daughters, and the rights of customary tenants on the common. Unfortunately, no such 'custumal' has survived for Earls Colne.
From these descriptions it is possible to build up a picture of the major estates at various points in time:
they offer a clear understanding of how the land was laid out, how it was supposed to be used, and what it was supposed to yield to the lord, so that they can give an unusually systematic, if intermittent, picture of rural conditions, population, agricultural practices and the like. (Elton 1969:147).
The documents are often very lengthy; it has been estimated, for example, that the rentals for the two manors in Earls Colne between 1380 and 1880 contain over thirty thousand names. They must also be treated with caution, especially in the case of early extents. Nevertheless they provide the indispensable framework within which other estate documents may be fitted.
The only accounting documents which have survived in any quantity in connection with estates are those produced by lords of manors. These may be divided into two categories. There are what is known as 'minister's accounts', that is the professional accounts kept by various officers employed by the lord, then there are the private estate accounts kept by the lord himself. The minister's accounts, chiefly made by stewards and bailiffs, were much the most voluminous.
There are also the account rolls themselves, made and audited each year, showing expenses, receipts and profits. They were written in Latin on long parchment strips. Of the many hundreds made for the manors in Earls Colne after 1400, only a few such 'compoti' have survived, but they are of extraordinary interest, showing in some cases even the daily diet of some of the monks. They give receipts from rents and from fines in the courts, sale of produce and sale of stock. They give the expenses of the purchase of agricultural equipment, upkeep of buildings, wages for agricultural work. The profits were then calculated and paid over to the lord.
Many subsidiary documents were used in drawing up these accounts. Notes were made on the court rolls themselves, giving the fines and amercements, the totals of expenses and income from a particular court. The fines were also extracted from the court rolls onto other rolls known as 'estreat' or extract rolls. This again was probably done annually, but only a few such rolls have survived for the two Earls Colne manors.
Only traces of the complex system of accounting have survived for these two manors, but they support the view that 'nothing can be more carefully and more exhaustively drawn than the bailiff's account.'(Rogers 1909:54)
The techniques of accounting had developed out of the methods developed by the Royal Exchequer in the twelfth century: 'each estate had a series of annual accounts modelled after those of the Crown.'(Hone 1906:203)
The form of accounting was fully described in texts of the thirteenth century, and did not change in its basic nature throughout the period under consideration. Throughout they tended to be written in Latin. Although the interspersing of totals within the text, rather than at the end of the line, looks curious to us, it is unlikely that an experienced bailiff or steward of the period would have found it more difficult to deal with than any more recent system.
The grouping of items under various categories made it possible to work out whether particular activities were making a profit or not, and the making of profit was the one criterion put forward in all the accounting treatises from the thirteenth century onwards. This desire for profit, combined with the need for honesty, is illustrated for example in the 'Seneschaucy' (Oschinsky 1971:293) in the early thirteenth century, where it is stated that the 'lord ought to command and arrange that his accounts are audited every year, not at one centre, but on each manor, for there one can learn quickly the state of affairs and ascertain profit and loss.'
Diligent lords also kept their private accounts. We are extremely fortunate in Earls Colne to have two such types of record. Similar to the 'estreats' or extracts from court rolls, is the book of extracts of fines made by successive lords of the manor from 1610 onwards, for both of the two manors. These primarily record admittances to copyhold properties and hence the fines paid at that point.
Much more general is the private account book kept by two lords of the manor between 1603-1649. This is divided into expenses and receipts and includes many details concerning the demesne, which are not available elsewhere. There are also numerous personal notes of expenses and receipts.
There are three major sources of information on freehold property. The first is deeds.
Landowners of all kinds...needed evidence of their wealth in order to retain, exploit and transfer it. Above all, they needed proof of possession, that is to say title deeds. Deeds - documents which recorded grants, sales, leases, agreements, and settlements of disputes - form the basis of a landed society... (Elton,1969:138-9).
The many millions of such documents which were produced in England from before the Norman Conquest up to the eighteenth century may be roughly divided in two ways. There are the original deeds and copies of such deeds, and there are those documents which are in private hands and those in public repositories. Roughly speaking, originals are in private hands and copies in public institutions, but there are many exceptions to this rule.
By far the largest quantity of deeds relating to Earls Colne are in private hands, though temporarily deposited at the Essex Record Office. There are numerous deeds for Earls Colne between the 1420's and 1750 now deposited in the Essex Record Office, all of which have been searched and transcribed. These record the conveyance of the manors as well as individual properties within them. There is also a collection of deeds relating to the property of the grammar school and Quaker Meeting House in Earls Colne.
They are often very lengthy documents, often written in Latin on parchment. Further deeds undoubtedly exist in private hands. Other deeds also exist in public collections which have not been searched. There are over 60,000 deeds in the Public Record Office, documents mostly deposited during law suits and never reclaimed (e.g. C.146- 9,E.210,etc.). There are also tens of thousands of other deeds under 'additional charters' in the British Museum. These original deeds 'give an astonishing amount of information about land transactions.' (Elton 1969:140). Yet, as the same author states, 'the evidence of copies is even more impressive.'
One major type of copy were collections known as 'cartularies', entry books of charters and deeds. Roughly 1268 such cartularies written in England and Wales before 1485 have so far been found, over half of them are now deposited in the British Library. At least thirty of these were composed before 1200, and one of these was the cartulary of Colne Priory, containing 107 charters of the twelfth century, which has been published (Fisher 1946). The second major set of copies were those kept by the King's Chancery on the back of the 'close' rolls (C. 54), extending from 1204 to 1903.
Deeds were instruments produced and executed by private individuals, with the advice of lawyers. A second major set of information concerning private land transactions were produced by a court, this is the class known variably as 'final concords', 'fines' or 'feet of fines'. They are deposited among the records of the court of Common Pleas (C.P.25), and all the fines relating to Earls Colne before 1750 have been extracted. But the nature of these documents needs to be explained in more detail, since much of the detail is fictional and misleading at first sight.
A fine is a record of a final agreement,settlement or 'concord' in a common law action concerning land. The 'foot' is the record's triplicate copy, which was written at the lower end, or 'foot',of the parchment. Two copies were issued to those involved in the case, and a third copy was kept by the Court of Common Pleas as a guarantee against forgery. They exist during a period of 650 years from 1182 to 1834 and were written in Latin down to 1733, except during the Commonwealth.
The final agreement provided someone with a king's court decision that he was the rightful holder of certain land. The most normal type of action was one where the deforciant or defendant was said to be forcibly excluding the plaintiff from land which the plaintiff claimed that he owned. But the matter is complicated by the fact that very soon the cases became largely fictions. Latham writes that
The uses of this legal fiction were numerous. It could make a tenant secure by confirming his right and barring claims which might colourably be made to the land under the complicated medieval system of tenure. It could be a way of conveying land from one party to another...Or it could be a method of providing for the inheritance of the land according to the present holder's wishes...he might grant it nominally to one party, so that it could be granted, subject to some restriction, to another, or even back to himself. (Latham 1952:7-8)
These final agreements, we are told, are 'often only one necessary part of some wider transaction, and so can only be fully understood with further evidence.' (Latham 1952:8) They therefore need to be integrated with private deeds in order to check the accuracy of various pieces of information. The dates of the documents are only approximately accurate, the holding was only vaguely described and some of the description was inflated.The area of land was 'only a rough approximation, if not an intentional overstatement.'
The value of the holdings can only be roughly inferred from the 'consideration' recorded. Even the question of who is conveying the holding to whom is sometimes unanswerable from the document itself and Latham explains ways in which various fictions are used to confuse this. Despite these complications, Latham describes them as having 'a unique value as a repository of information on the conveyance of freehold land over six and a half centuries. (Latham 1952:9).
One of the central attractions of the final concords was that 'freehold property could not be passed or settled without expensive licences from feudal lords and similar legal impediments' (Elton 1969:143), but by such a collusive action at common law a way was found round this obstacle. It was harder for freeholders to avoid paying another kind of fine, known as a 'relief'. The payment of such reliefs leads to our third kind of record of freehold transfers. Freeholds lay within certain manors and the owners were required to do certain services and to pay certain reliefs to the lord of the manor.
The nature of the relief by the later period is well described by Jacob (1741:10):
Relief is a certain sum of money, which every freeholder payeth unto his lord, being at full age, at the death of his ancestor. It is the key, which opens the gate to give the heir free passage to the possession of his inheritance... There is relief service, and relief custom - relief service is that which is paid upon the death of any freeholder; relief custom is that which is paid upon the death of any freeholder, change or alienation of any freehold, according to the custom of the place. In many places it is a year's profit of the lands, and in many other places but half a year's profit.
The reliefs which had to be paid were to be enrolled along with copyhold transfers in the court roll. The reliefs were customarily of a year's profits.
The other major form of tenure in Earls Colne was by tenants of the lord of the manor who held under the rules of custom by way of a 'copy of court roll' or copyhold. Certain customary lands could not be transferred without the licence of the lord, usually upon the payment of a fine.
If I will exchange a copyhold with another, I cannot do it by an ordinary exchange at the common law, but we must surrender to each other's use, and the Lord admits us accordingly. If I will devise a copyhold, I cannot do it by will at the common law, but I must surrender it to the use of my last will and testament, and in my will I must declare my intent. (Jacob 1741:6-7).
It might seem from this that the tenant was passing seisin or possession over to the lord, and hence weakening his claim. But Jacob stressed that this was not the case.
A surrender (where by a subsequent admittance the grant is to receive its perfection and confirmation) is rather a manifesting the grantor's intentions, than of passing away any interest in the possession; for till the admittance the Lord taketh notice of the grantor as tenant, and he shall receive the profits of the lands to his own use, and shall discharge all services due to the Lord ...(Jacob 1741:6).
Here he was following earlier writers. Coke, for example, likened the lord and his steward to a 'water-conduit' or 'instrument' through whose hands the property flowed. At this stage, the lord cannot interfere, nor can the grantee enter the premises, nor can the grantor change his mind. The fact that the lord is merely acting as a channel along which the possession moved is further stressed under the question of admittance.
In voluntary admittances the Lord is only esteemed custom's instrument ... And as in admittances upon surrenders, so in admittances upon descents, the Lord is used as a mere instrument, and no manner of interest passeth out of him ... (Jacob 1741:7).
Hence it was the case that 'admittances by the Lord to a wrong person is void and of no effect ...'. From at least the fifteenth century cases concerning copyhold property could be brought to Chancery and by the 1570s or 1580s the common law allowed the copyholder's lessee to bring an action of ejectment (Baker 1979:260). Hence there was protection for the copyholder not only in local custom but in equity and common law. It is important to stress this fact since the wording of the actual surrenders and admittances gives at first glance an impression of far more power to the Lord than was indeed the case.
Most of the surrenders and admittances followed a fairly simple formula, an example of which is given by Jacob (1741:41):
I A,B. do surrender and yield up into the hands of W.A.Esq; Lord of this manor, all that messuage and tenement, with the appurtenances within this manor, now in the tenure of C.D. And all my estate, right, title, interest, possession, reversion, claim and demand whatsoever, of, in, and to the same, to the end the Lord may do therewith his will; and in token thereof I deliver up this virge (rod).
Usually there would be a short description of the property, but this was often standardized and might not bear much relation to its present nature. If the surrender was out of court, then witnesses were named. Sometimes the surrender might be to the use of a man and his wife and the longer lived of them, or to himself and a child, or to the use of a will. It thus became possible to entail or tie up the future of copyhold land. But descendants might wish to break such entails and by about 1475 a legal fiction had been devised to make it possible. This was known as a 'common recovery'. There are a number of these in the Earls Colne manor court rolls and since they are very misleading at first sight, being collusive or fictional actions, it is necessary to explain this complex device. This is best done in the words of a legal historian, John Baker (1979:235):
In its simplest form, the alienee brought a real action against the alienor, the tenant in tail, on an imaginary title; the tenant called upon or 'vouched' a third party to warrant his title; the vouchee defaulted; and judgment was given for the alienee to recover the land. But for the voucher, the recovery could have been avoided ('falsified') by the issue in tail bringing actions of formedon. But the effect of the voucher was that the recoverer took an indefeasible title by the judgment, and the issue in tail were compensated by judgment against the defaulting vouchee for lands of equal value. The trick which was established by 1475 was for a humble, landless official of the court to lend his name (for a fee of 4d.) as the 'common vouchee'. The common vouchee would deliberately make default, and the issue would then be cut off with a worthless right to execute judgment against the lands of the landless defaulter.
After the tenant had made the surrender to the lord, he and his heirs, or the person to whom he had conveyed it, were admitted. In the example of A.B. already quoted, the steward would proceed to readmit A.B. with the following additions:
The wording would naturally vary a little between manors and over time, but the underlying features remained constant. If the heirs or person to whom the holding was to be transferred failed to appear in court to seek admittance, proclamation was to be made at three courts for them to appear. If they failed to do so, or to send someone with powers to act for them, then their possession reverted to the Lord. If the heir or grantee appeared and was successful in seeking admittance, he had to swear an oath of fealty, which was not recorded on the court rolls, as follows:
Gentlemen of the Homage, you are to take notice, that the messuage and tenement, with the appurtenances now surrendered, is again granted to the said A.B. as sole purchaser ... to hold to him the said A.B. and C. and D. his sons, for the term of their lives, and the life of the longest liver of them successively, at the will of the Lord, according to the custom of this manor, by the yearly rent thereof of six shillings and eight pence, and by all other rents, charges, works, suits, customs and services therefore due, and of right accustomed. And for such estate so had in the premises, the said A.B. gives to the Lord for a fine forty pounds, in hand paid, or secured to be paid, and so he is admitted tenent thereof; and I do hereby give you seisin thereof (delivering him pen or rod) to hold the same accordingly.(Jacob 1741:42).
You shall swear to become a true tenant to the honourable W.A.Esq; Lord of this manor, for the estate to which you are now admitted tenant. You shall from time to time bear, pay, and do all such rents, duties, services and customs therefore due, and of right accustomed. You shall from time to time be ordered and justified in all things at the Lord's courts, to be holden in and for the said manor of B. as other the tenants of the said manor, for their respective estates, are, shall, or ought to be; and you shall in all things demean yourself as a faithful tenant ought to do. So help you God. (Jacob 1741:42-3).
The record of these transfers of land was first written out in rough in court, as a draft of a court roll. Such a draft court roll exists for Colne Priory for the years 1625 and 1626. A fair copy was then made on parchment, a copy of each entry also being given to the person admitted, this being his security and 'copy of court roll'. Except for the brief period of the Interregnum, these transfers were written in Latin on long parchment sheets which were then rolled up. There are an average of about ten transfers a year in the rolls for the manor of Earls Colne and about five a year for Colne Priory. About five thousand transfers have survived for the period before 1750, in which over twenty thousand names appear. These transfers give us a great amount of detailed information about the ownership of land and houses and provide invaluable demographic, economic and social data. They often fill in family relationships, give dates of death, throw light on inheritance practices.
This general charge is largely the same as that in the model set of instructions for holding a court baron compiled from courts held in 1434 (Roll 1434). With the omission of the articles about bondmen, it is basically the same as that printed as a model by Jacob in the early eighteenth century (Jacob 1741:36-8). Many matters arising from these enquiries can be found in the court rolls of Earls Colne and Colne Priory manors throughout the period, though they tend to disappear in the second half of the seventeenth century.
The exact nature of the procedure and punishments in this court is not entirely clear. It appears that the homage would present an offence, or an individual could bring a case against another. The procedure was more like that of an equity court, and could deal with minor matters which fell outside the common law. Edward Coke claimed that
In deciding controversies arising about the title of copyhold lands lying within his bounds: and when he sitteth as judge in court to end debates of this nature,he is not tied to the strict form of the Common law, and may redress matters in conscience upon bill exhibited, where the common law will afford no remedy in the same kind ... (Coke 1764:100).
If a false judgment be given in a court baron by the Steward against a copyholder, the copyholder ... may sue in the court of the Lord by bill, to be relieved against such judgment; and the Lord, as Chancellor, may give him relief therein ...(Jacob 1741:18).
Thus it would appear that the procedure could follow that of the bill and answer, rather than that of jury presentment and writ of common law, and that the decision was taken by the Lord or his Steward, and not by the homage jury, who made the presentment in certain matters and stated the custom of the manor. It was in this court that almost all real actions, those concerning copyhold land, were to be tried. The one form of punishment that the customary court could inflict was an 'amercement'. An amercement, or putting someone in mercy, was a
pecuniary punishment for any offence committed by the tenant against the Lord of any manor. It is a certain sum of money imposed upon the tenant by the Steward, by the oath and presentment of the homage, for the breach of any bylaw ... or for default of doing suit, or for other misdemeanours, punishable by the same court. (Jacob 1741:10-11).
It differed from a fine in that a person who was amerced could not be lawfully imprisoned for non-payment. When an amercement was granted a lord could enter an action of debt, or distrain from it, and impound the distress and sell the object. The actual level of the amercement was set by two to four 'affeerors' chosen by the court.
The other major function of the court baron was as a court of common law, the lowest rung on the ladder which led up through the Quarter Sessions and .bold nisi prius jurisdiction of the Assizes to the courts of the King's Bench and Common Pleas. In terms of actions which could be tried in the court, they were identical to those 'common pleas' tried at other common law courts. The particular actions which Jacob singles out as likely to occur are as follows: actions of debt, actions upon a case (a general action for redress of wrongs done without force against any man, e.g. deceits, breaking of contracts and bargains etc.), slander, actions of trespass and battery, actions of detinue, trover etc. (i.e. recovery of goods or things lent or delivered, recovery of damages to the value of them), actions of waste (spoiling by a tenant for life or years) (Jacob 1741:249-342). One major condition upon which the actions could be tried was that they were petty, involving sums less than 40s.
The court was open to all freeholders or 'barons' residing (or having real property in) the manor. It could only take place if there were at least two suitors. It could be held every three weeks and the freeholders being suitors were also the judges, less than twelve being sufficient to act in this capacity. Since the freeholders were the jury, the lord himself could bring an action for himself against another, which he could not do in the court leet where he or his Steward was Judge, or on the customary side of the court baron. The procedure in court was in theory similar to that of Quarter Sessions or other common law courts, and it could therefore be as long and convoluted as that in, for example, Common Pleas, with writs, warrants of attorney, answers, imparling, replications, rejoinders, sur-rejoinders, rebutters, sur-rebutters etc.
As far as punishments were concerned, the court did not have the power to fine, that is to imprison for non-payment, but merely to amerce, that is to distrain the defendant's goods and to retain them until satisfaction was made. The damages which could be claimed as a result of a successful plea are set out for the later period by Jacob (1741:268) and vary between treble damages and costs, and just damages.
For analytic purposes we may distinguish the court leet from the 'view of frankpledge' and treat them separately, but it is necessary to remember that, as Maitland argued concerning this distinction and that between court baron and court leet, in practice there was a great overlap.
It is as we move towards modern times that a distinction between courts of various kinds becomes apparent; there is the court leet, the police court, exercising royal franchises, a court of record, in which, since it is the king's, jurors shall swear that they will keep the king's counsel and proclamation shall be made with a triple 'oyez!'; suit to it is 'suit royal'; on the other hand is the court baron, a civil court, a court not of record, where no mention shall be made of the king's counsel and where only a single 'oyez!' is permissible; suit to it is 'suit service'. (Maitland 1889:xviii).
Just as the common law side of the court baron could be seen as the lowest level of the chain of courts dealing with common pleas, leading up to the Court of Common Pleas, so the court leet is the lowest level of the courts dealing with pleas of the Crown, above which stood the Justices of the Peace, Judges of Assize and King's Bench. Consequently a presentment at a court leet could be removed by .bold certiorari into the court of King's Bench, where it could be traversed. Originally the word 'leet', an East Anglian word, seems to have meant a geographical division of the hundred. The country was divided up into areas and 'twice a year it was the sheriff's turn to hold these courts, and a court so holden by him came to be known as the sheriff's tourn. When such courts as these were in private hands, they were generally called courts leet.' (Maitland 1919:46). The right to hold a court leet was thus a special franchise, anciently granted by charter or prescription (prescription is a custom relating to a specific individual). Thus only certain manors or boroughs or other greater franchises had a leet jurisdiction. The way in which the private leets fitted in with the royal leets is explained by Hearnshaw (1905-6:245)
During the middle ages in fact, and in theory until the passing of the Sheriffs Act of 1887, every man in England and Wales lay within the precinct of some leet. For if he were not within the leet of any manor, municipality, or great franchise, then he was within the king's immediate leet, the sheriff's tourn.
But whereas the sheriff's tourn withered away before 1500 to be replaced by Commissions of the Peace and Justices of Assize, the private leets remained active in some areas until the eighteenth century. Thus the court leet is 'a court of record, ordained for punishing offences against the Crown; and is said to be the most ancient court of the land.' (Jacob 1744:s.v.court-leet).
The types of offence of which the court leet should take cognizance is indicated by the earliest printed 'charge of the leet', in 1510:
(Modus 1510:6-12; summarised, partly modernized and numbers added).
A comparison of this summary of the charge to the leet in 1510 with the model charge in 1434 (Roll 1434) shows a great deal of similarity, and often identical wording, even the order is substantially the same. But a comparison of the 1510 edition to the 1650 edition of a similar manual shows how much had been added to the duties of the court leet. Although the court leet was 'rigidly limited to its common law powers' and could 'only take cognizance of the newer statutory offences if it had been given power to do so by the statute which created the offence' (Holdsworth 1966:136) many of the statutes of the sixteenth and seventeenth centuries which extended the power of justices of the peace also empowered the court leet to act. Thus the 1650 edition lists and defines 28 major offences which were to be enquired of, including all the normal felonies such as clipping and coining, homicide, manslaughter, rape, burglary, robbery etc., which 'are to be enquired of, and presented in court leet, but not punishable there.' (Order 1650:10). The following matters, not mentioned in the 1510 edition, had been added to the list of matters to be presented in the leet and to be punished there:
An addition of divers other matters enquirable in leets, not mentioned in the former edition.
(Order 1650:15-30; summarized and modernized).
Even if only some of these matters were presented and punished, it can be seen how important the court leet was in the policing of the village. This raises the important question of the degree of the discrepancy between the theory and practice. In his study of the Southampton Court Leet, Hearnshaw was led to remark that 'It would be difficult to invent, or even to conceive, a body of entries less like the model presentments of the court keepers' guides ...' (Hearnshaw 1905-6:198). Only a detailed study of Earls Colne leet courts will enable us to establish whether this was the case there.
As regards the meetings, we are told that the court leet 'by the statute of Magna Charta is to be kept but twice every year; within a month after Easter and another time within a month after Michaelmas.' (Coke 1764:50). Its procedure was basically similar to that of the Justices at the Quarter Sessions or the Assizes.
The sheriff or the steward ... addressed a list of questions known as the 'articles of the tourn' to the representatives of the various townships in the hundred just as the royal justices in eyre addressed articles of the eyre to the various bodies representing the county ... (Radcliffe and Cross 1954:74).
In both the sheriff's tourn and the court leet the business 'is transacted by means of presentments and indictments preferred by a jury' (Maitland 1889:xxvii). The lord or his steward was the judge.
A thirteenth-century manuscript, which is significantly entitled 'Le Court de Baron', even though it is dealing with what we would later classify as court leet business, gives an interesting idea of the earlier procedures (Hone 1906:132-140). In one case, the bailiff complains to the steward, and the court awards compurgation with five neighbours to acquit the person of the charge. Such a method with compurgation was later only used by the ecclesiastical courts. In two more serious cases of horse stealing and burglary, the procedure appears to be very similar to that in the other common law courts. In the first case the bailiff calls for the prisoners to be brought before him, and asks what is the charge. He cross-questions the prisoner, who answers. The bailiff suggests that 'thou canst right boldly put thyself upon the good folk of this vill that thou didst not steal her'. The prisoner replies that the neighbours believe evil reports of him and would not do him justice, to which the bailiff amswers that 'thou canst oust from among them all those thou suspectest of desiring condemnation ...', after which the accused confesses his crime. In the second case, the accused denies the charge and asks that 'I put myself upon the jury of the vill for good and for ill', and it is ordered that 'an inquest be made'. Thus it would appear that in small cases there might be summary sentence or compurgation, while in more complex and serious cases normal common law procedures were to be followed.
The important role of the jury or 'inquest' as it was called in the 1510 edition is shown by the oath they had to take upon the Holy Sacrament:
The oaths were even more elaborate in the 1650 edition, that of the foreman ending with the words (1650:4)
Thou shalt truly inquire and true presentment make of all that thou shalt be charged of in the king's behalf, and of the lords of this franchise, this worthy to be presented, that is for to say the king's counsell, thy fellows and thine own will and truly keep and for nothing let, but say so help thee God and thy holy dome (sacrament) and bid him kiss the book ... (Modus 1510:2; modernized).
but you shall present and tell the truth, the whole truth, and nothing but the truth, so help you God, and by the contents of this Book. And this being done, cause him to kiss the Book.
After each individual juryman had taken a separate oath, the 1650 edition (5-10) spends four and a half pages outlining an 'exhortation to be given unto the Jury before the charge, to consider their oath', in which they were exhorted by all that was sacred and holy to make a true presentment. The jury in a court leet must consist of at least twelve persons, whereas that of a court baron could consist of less than twelve;
the reason of that is, because none are impanelled upon the jury in courts-barons but freeholders of the same manor, but in court-leets strangers are sometimes impanelled. (Coke 1764:51).
The powers of the court leet were generally limited. Those cases
which are to be punished with loss of life or member, are only inquirable and presentable here, and to be certified over to the Justices of Assize.Stat.1.Ed.3. (Jacob l744:s.v.court-leet).
Thus it could not punish felonies, only misdemeanours. Jacob continued that
a court leet may fine, but not imprison: a steward may impose a reasonable fine, for a contempt in court; or commit those who make an affray before him, in the execution of his office, or bind them to the peace or good behaviour: but he may not grant surety of the peace, unless by prescription. ... The usual method of punishment in the court leet, is by fine and amercement; the former assessed by the steward, and the latter by the jury: for both of which, the lord may have an action of debt, or take a distress, &c.
The lord of the leet
ought to have a pillory and tumbrel to punish offenders ... Also all towns in the leet are to have stocks in repair ...(Jacob 1744:s.v.court-leet).
Clearly, therefore, some forms of minor physical discomfort could be used as punishments. The Steward and court leet also had the power to elect officers, such as constables and tithingmen, to carry out their duties. As with the court baron, the court would select between two and four 'affeerors', who were to assess the level of fines and amercements.
Both of the two manors in Earls Colne had the extra franchise of a court leet. The court rolls therefore contain numerous court leet presentments, for the courts leet remained active until about 1620. On average, between twenty and thirty cases a year were presented in the two courts combined. Allowing for the loss of some of the rolls, we can estimate that roughly three or four thousand court leet cases of one kind or another survive for this parish.
Maitland argued that the word 'leet' is of late invention and that before the thirteenth century, the court was called more often the 'view of frankpledge', or, in other words, the inspection of the free pledges. There is therefore no real distinction between view of frankpledge and court leet (Maitland 1889:xvi-xix). This theory is anticipated by Jacob in the eighteenth century when he writes that the court leet 'is called the View of Frankpledge'. This was
because the King is to be there certified by the View of the Steward, how many people are within every leet, and have an account of their good manners and government.(Jacob 1744:s.v.court-leet).
Without going into the dispute over the origins of the system, what is clear is that by 1400 the frankpledge was flourishing, and where a court leet had been granted to a particular lordship or estate, the lord had the right to hold a view of frankpledge. In theory the view was to ensure that 'every person of the age of 12 years, which hath remained there for a year and a day may be sworn to be faithful to the King.' (Jacob 1744:s.v.court-leet).
In theory, all those aged from twelve to sixty years of age who dwelt within the leet were obliged to do suit of court, except peers and clergymen, unless they were under the sheriff's tourn. Handbooks stressed this duty and gave a model of the oath of allegiance which each person had to take once or twice a year when the view was held.
I shall true liege man be and true faith bear to King Henry the Seventh that now is and to his heirs and be no thief nor thieves companion, nor thief know, nor treason, nor keep it counsel but I shall inform and do to know them that be the King's officers that have the law in governance, etc. And shall be compliant and obedient to the justices and commissioners, sherrifs escheatours bailiffs and constables and to all other officers of the King in all that they shall charge me lawfully, so help me God, etc. (Modus 1510:24-5; modernized).
If such a system had been extensive, with personal appearance of most of the adult males twice a year, the swearing of oaths of allegiance and presentment of defaulters, it would clearly be of the utmost importance in instilling a sense of the national law.
In practice the thoroughness of the views varied both between manors and over time. An analysis of the views in Earls Colne suggested that in the late Elizabethan period, the views provide 'a good coverage of a large proportion of adult males' (Macfarlane 1977:126). But in the fifteenth and early sixteenth centuries there are periods when the lists are much shorter, perhaps only naming the chief pledges. In the manor of Earls Colne there are such views over most of the period 1400-1700, while in Colne Priory manor views have been sporadically recorded between 1490 and about 1700. Allowing for the loss of records, this parish produced roughly between 20,000 and 30,000 names in the views of frankpledge over the whole period up to 1750. The names are written in lists at the start of each session of the court, on the court rolls, often indicating those who had 'essoined' or put in excuses for absence, and noting the fines to be paid by those who had failed to appear and made no essoin.
One other franchise needs to be mentioned. As Maitland wrote
The lord who has the view of frankpledge usually has also the 'assize of beer', that is, the power of enforcing the general ordinances which from time to time fix the prices at which beer may be sold; sometimes, but much more rarely, he claims the assize of bread. Out of beer the lords made some considerable profit. (Pollock and Maitland 1968:581-2).
In both Earls Colne and Colne Priory, the lord had both assizes of bread and ale and this led to many presentments.
Despite the loss of a number of court rolls, rentals, account rolls and other documents, and despite the fact that we have only the fair copies in most cases, the records created by the holders of estates in Earls Colne constitute a very large archive. For Earls Colne the records are considerably larger in quantity than the records produced by the Church and by the State combined. This was not only the result of the importance of land holding, but also because the 'estate' or manor was much more than just a landholding institution. The four functions it performed are summarized by Maitland:
Thus we may regard the typical manor (1)as being, qua vill, an unit of public law, of police and fiscal law, (2)as being an unit in the system of agriculture, (3) as being an unit in the management of property, (4) as being a jurisdictional unit. (Pollock and Maitland 1968:597)
All the records discussed here, with the exceptions of some of the deeds and feet of fines at the Public Record Office and British Library, are on deposit at the Essex Record Office at Chelmsford. All the known surviving records for estates in Earls Colne between 1400 and 1750 have been transcribed, and we have added a further rental of 1854 in which the lord of the manor specifically linked land through the manor courts rolls and rentals back to 1598.
(Place of publication London, unless otherwise specified).