Participatory Adjudication
Within a manor, as in other political units of the West during the formative era of the Western legal tradition, formal government was closely associated with adjudication: that is, legislative and executive activities were to a considerable extent merged with judicial activities and were conducted by an institution called a court.
The use of the word "court" rather than "legislature" or "executive" for this institution did not signify that the making and enforcement of laws were not regarded as important functions of government. In fact, the manorial courts, like the papal court and the royal, seignorial, urban, and mercantile courts, had wide legislative and executive powers within their respective jurisdictions. Perry Anderson is correct in stating that "justice was the central modality of political power," but he is incorrect in supposing that this was necessitated by the "parcellization of sovereignty" under feudalism, which "excluded any 'executive' at all, in the modern sense of a permanent administrative apparatus of the State for the enforcement o f the law," and also left "no room for an orthodox 'legislature' of the later type either, since the feudal order possessed no general concept of political innovation by the creation of new laws." 13 In fact, a centralized state apparatus existed in the church, which was nevertheless governed by the papal curia; and the church, both through the papal curia and through church councils, did innovate by creating new laws. There were parallel developments in royal government. Indeed, the manorial courts themselves not only heard and decided disputes but also enforced law through a developed administrative apparatus and from t ime to time made new laws as well. The difference between twelfth_century and twentieth_century conceptions of government does not lie in the absence then, and the presence now, of the legislative and executive functions, but rather, first, in the fusion then and the separation now of those functions, and second, in the subsumption then of the legislative and executive under the adjudicative. Then, lawmaking itself was regarded as a process of deliberation and discovery. Laws were considered to be either true or false, either just or unjust, and therefore the making and administering of them were not sharply distinguished from their application in cases of dispute.- ^324^Manorial justice was the prerogative of the lord of the manor, just as royal justice was the prerogative of the king and ecclesiastical justice the prerogative of the pope. "Each baron is sovereign in his barony," wrote Beaumanoir, while "the king is sovereign everywhere and by his law [droit, "right"] guards his realm." 14Beaumanoir also wrote: "Every lord has all justices -- high and low -- in his fief... Fief and justice -- it is all one." 15 This was, to be sure, an exaggeration, applicable only to great lords. Most lords of manors had only "low" justice. Yet the justice of the lord of the manor authorized him to exercise a wide variety of powers over the staff of manorial officers who in effect constituted his household, and over the peasants who constituted the basic population of the manor. At the same time, the justice of the lord of the manor was a substantial restriction upon the arbitrary exercise of the lord's power and a substantial means of maintaining the reciprocity of rights of lords and peasants.
The steward of the manor, who commonly served as the lord's deputy in all matters affecting manorial government, usually presided over the manorial court. Other manorial officials-the reeve (who acted as general overseer), the hayward (who watched over the lord's crops), the woodward (who guarded his woods), the rent collector, and various
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others___ also participated in the proceedings of the manorial court, often as prosecutors of persons
who had offended against the lord's prerogatives.
The court itself consisted of all the members of the manor, from the lord and his steward down to the lowliest serf.
All were judges. They were called "suitors," and were said to "pay suit of court"; indeed, it was an obligation to attend court and to judge, and, as part of the obligation, a fee had to be paid to the lord. Little is known about the methods of voting in the manorial court; the extant reports of manorial cases occasionally show a division of opinion, but generally the decision is presented as that of the court as a whole. No distinction was made between freemen and serfs either with respect to the right and duty to judge or with respect to the procedure applied to them when they were parties to disputes.A high degree of cooperation among all members of the manor was required for manorial justice to work. But such cooperation was required also by the whole system of agriculture in Europe during the late eleventh and twelfth centuries. Here many historians, in concentrating on the inequality of status and of privilege between lords and peasants, have neglected other aspects of the mode and relations of production that were equally important. Under the open-field system, the arable land was usually divided into long, narrow strips, which were widely scattered among the various peasant families. In order to make rational use of animals for plowing adjacent strips belonging to different tenants, and in order to time the sowing and harvesting so as to avoid conflict, it was necessary for the peasants to agree on work methods. Also, the common ownership of pasture, meadows, and woodland required agreement concerning their utilization. In addition, the system of crop rotation allowed for arable land to be converted periodically into pasture, to be grazed over and fertilized by all the animals of the manor. 16Thus the open-field system itself required a very high degree of cooperation among all members of the manor. As Hilton writes, the fact that the village (or the manor) was often called a "community" and the members "neighbors" was "not a matter of sentiment but of fact.
Open-field cultivation meant that one man's injury was everybody's, even the lord's." Hilton cites a case in which seven persons were accused of failing to keep up their fences, with the result that the corn (wheat) of the abbot and of "other neighbors" had been damaged. "These were the fences which every tenant who had parcels on the perimeter of the open fields had to keep up when the corn was growing, to prevent the animals getting in, not merely to his own corn, but, since the fields were open, into the corn of all who had parcels in that field." 17The rules and procedures for maintaining cooperation in these and other matters were considered to constitute the custom of the manor. If
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plow oxen were damaged, if arable land was not fertilized, if a person failed to help in bringing in the harvest, then the custom of the manor might be invoked against the offender in the manorial court. Similarly, if one person struck or defamed another, or failed to pay for goods which he had bought, or broke his promise to build a shed for another, or slandered another, the victim could complain in the manorial court. 1 8_
Thus the very complexity of communal serf-regulation of the manorial economy gave rise to a large variety of types of civil and criminal matters to be settled by manorial justice. In addition, fines were imposed for violation of the lord's rights -- as by trespassing on his land, stealing his crops, of failing to perform labor services or pay taxes due to him.
All these matters were decided by the manorial court, by vote of all the suitors. One may suppose that the power of the lord and his officials was such as to influence the outcome in his favor. Yet cases are reported in which his interests were not protected. For example, it happened sometimes that peasants would successfully sue for land which the lord had rented to others. In one case the lord of the manor had sought to deprive a serf of certain land on the ground that the serf's holdings exceeded that to which he was entitled; the serf argued that he and other tenants in a comparable situation "for all time theretofore were accustomed to hold several tenements without fine or license or complaint," and that he was "prepared to verify this by the homage [that is, by all the tenants of the manor] or other lawful means as may be necessary." The report of this case concludes: "The matter is put in respite until there can be a fuller consultation etc." 19In addition to cases in which the lord's property rights were directly involved, there were many cases in which the manorial court, whether by judgment of the whole community of tenants or by judgment of an inquest or jury, gave remedies against the lord's bailiff and other officials.
20The manorial court not only gave judgment in disputed matters and imposed fines for offenses but also issued regulations and rules for administering the manorial economy. In the eleventh and twelfth centuries these regulations and rules were apparently unwritten; in England no written records of them have been found prior to the second quarter of the thirteenth century. From that time on, however, there are abundant records of "by-laws" and "ordinances," which regulated the use of common fields and pasture, the gathering of grain and other crops (including gleaning by paupers), the keeping of fences and gates, the tethering of horses and beasts, the seasonal transition from one type of land use to another, and other matters affecting the communal economy. These regulations were issued periodically by all members of the manor collectively acting as suitors to the manorial court. Characteristically such regulations were introduced by the phrase: "Ordered by the assent of the
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whole homage," or "Ordered by all the tenants both free and servile," or "Ordered by the lord and the tenants." Strong emphasis was laid on protection of the property rights of the lord; but the main emphasis was on the organization of the work of the manor, and this included protection of the rights of all tenants, serf as well as free, against unwarranted interference by others. 21