vill2-第15章
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he justices or to the sheriff。（20*） It does not concern freehold estate； but only land of base though privileged tenure。 An action for freehold also may be begun in a manorial court； but in that case the writ will be 'the writ of right patent' and not 'the little writ of right close。'（21*） The exclusion of the tenants from the public courts is a self…evident consequence of their base condition； in fact； pleading ancient demesne in bar of an action is； in legal substance； the same thing as pleading villainage。（22*） Of course； an outlet was provided by the manorial writ in this case； and there was no such outlet for villains outside the ancient demesne； but as to the original jurisdiction in common law courts； jurisdiction that is in the first instance； the position was identical。 Though legally self…evident； this matter is often specially noticed； and sometimes stress is laid on peculiarities of procedure； such as the inapplicability of the duel and the grand assize （23*） in land to ancient demesne； peculiarities which； however； are not universally found；（24*） and which； even if they were universally found； would stand as consequence and not as cause。 This may be accounted for by the observation that the legal protection bestowed on this particular class of holdings； notwithstanding its limitations； actually imparted to them something of the nature of freehold； and led to a great confusion of attributes and principles。 Indeed； the difficulty of keeping within the lines of privileged 'villainage' is clearly illustrated by the fact that the 'little writ；' with all its restrictions； and quite apart from any contention with the lord； recognises the tenant in ancient demesne as capable of independent action。 Villains； or men holding in villainage； have no writ； either manorial or extra…manorial； for the protection or recovery of their holdings； and the existence of such an action for villain socmen is in itself a limitation of the power of lord and steward； even when they are no parties to the case。 And so the distinction between freehold and ancient demesne villainage is narrowed to a distinction of jurisdiction and procedure。 This is so much the case that if； by a mere slip as it were； a tenement in ancient demesne has been once recovered by an assize of novel disseisin； the exclusive use of the 'little writ' is broken； and assizes will ever lie hereafter； that is； the tenement can be sued for as 'freehold' in common law courts。（25*） Surely this could happen only because the tenure in ancient demesne； although a kind of villainage； closely resembled freehold。 One has primarily to look for an explanation of these great privileges to manors； which had been granted by the king to private lords。 On such lands the 'little writ' lay both when 'villain socmen' were pleading against each other；（26*） and when a socman was opposed to his lord as a plaintiff。（27*） This last eventuality is； of course； the most striking and important one。 There were some disputes and some mistakes in practice as to the operation of the rule。 The judges were much exercised over the question whether an action was to be allowed against the lord in the king's court。 The difficulty was； that the contending parties had different estates in the land； the one being possessed of the customary tenancy in ancient demesne； and the other of the frank fee。 There are authoritative fourteenth…century decisions to the effect that； in such an action； the tenant had the option between going to the court at Westminster or to the ancient demesne jurisdiction。（28*） The main fact remains； that a privileged villain had 'personam standi in judicio' against his lord； and actually could be a plaintiff against him。 Court rolls of ancient demesne manors frequently exhibit the curious case of a manorial lord who is summoned to appear； distrained； admitted to plead； and subjected to judgment by his own court。（29*） And as I said； one looks naturally to such instances of egregious independence； in order to explain the affinity between privileged villainage and freehold。 The explanation would be insufficient； however； and this for two simple reasons。 The passage of the manor into the hands of a subject only modifies the institution of ancient demesne； but does not constitute it； the 'little writ of right' is by no means framed to suit the exceptional case of a contention between lord and tenant； its object is also to protect the tenants against each other in a way which is out of the question where ordinary villainage is concerned。 The two reasons converge； as it were； in the fact that the 'little writ of right' is suable in all ancient demesne manors without exception； that it applies quite as much to those which remain in the crown as to those which have been alienated from it。（30*） And this leads us to a very important deduction。 If the affinity of privileged villainage and freehold is connected with the 'little writ of right' as such； and not merely with a particular application of it； if the little writ of right is framed for all the manors of ancient demesne alike； the affinity of privileged villainage and freehold is to be traced to the general condition of the king's manors in ancient demesne。（31*） Although the tenants in ancient demesne are admitted to use the 'little writ of right' only； their court made it go a long way； and in fact； all or almost all the real actions of the common law had their parallel in its jurisdiction。 The demandant； when appearing in court； made a protestation to sue in the nature of a writ of mort d'ancestor or of dower（32*） or the like； and the procedure varied accordingly； sometimes following very closely the lines of the procedure in the high courts； and sometimes exhibiting tenacious local usage or archaic arrangements。（33*） Actions as to personal estate could be pleaded without writ； and as for the crown pleas they were reserved to the high courts。（34*） But even in actions regarding the soil a removal to these latter was not excluded。（35*） Evocation to a higher court followed naturally if the manorial court refused justice and such removal made the land frank fee。（36*） The proceedings in ancient demesne could be challenged； and thereupon a writ of false judgment brought the case under the cognizance of the courts of common law。 If on examination an error was found； the sentence of the lower tribunal was quashed and the case had to proceed in the higher。（37*） instances of examination and revision are frequent in our records。（38*） The examination of the proceedings by the justices was by no means an easy matter； because they were constantly confronted by appeals to the custom of the manor and counter appeals to the principles of the common law of England。 It was very difficult to adjust these conflicting elements with nicety。 As to the point of fact； whether an alleged custom was really in usage or not； the justices had a good standing ground for decision。 They asked； as a rule； whether precedents could be adduced and proved as to the usage；（39*） they allowed a great latitude for the peculiarities of customary law； but the difficulty was that a line had to be drawn somewhere。（40*） This procedure of revision on the whole is quite as important a manifestation of the freehold qualities of privileged villainage as pleading by writ。 Men holding in pure villainage also had a manorial court to go to and to plead in； but its judicial organisation proceeded entirely from the will and power of the lord； and it ended where his will and power ended； there was no higher court and no revision for such men。 The writ of false judgment in respect of tenements in ancient demesne shows conclusively that the peculiar procedure provided for the privileged villains was only an instance and a variation of the general law of the land； maintaining actionable rights of free persons。 And be it again noted； that there was no sort of difference as to revision between those manors which were in the actual possession of the crown and those which were out of it。（41*） Revision and reversal were provided not as a complement to the legal protection of the tenant against the lord； but as a consequence of that independent position of the tenant as a person who has rights
