vill2 [29]
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