And in both respects the manorial court is called upon to act. It is considered as the repositary of legal lore, and the exponent of its applications. This means that the court is, what its name implies, a tribunal and not a set of private persons called upon to assist a judge by their knowledge of legal details or material facts.(56*)The whole exposition brings us back to a point of primary importance. The title by which land is held according to manorial custom is derived from communal authority quite as much as from the lord's grant. Without stepping out of the feudal evidence into historical inquiry, we find that civil arrangements of the peasantry are based on acts performed through the agency of the steward, and before the manorial court, which has a voice in the matter and vouches for its validity and remembrance. The 'full court' is noticed in the records as quite as necessary an element in the conveyancing business as the lord and his steward, although the legal. theory of modern times has affected to take into account only these latter.(57*) Indeed, it is the part assumed by the court which appears as the distinctive, if not the more important factor. A feoffment of land made on the basis of free tenure proceeds from the grantor in the same way as a grant on the conditions of base tenure; freehold comes from the lord, as well as copyhold. But copyhold is necessarily transferred in court, while freehold is not. And if we speak of the presentment of offences through the representatives of townships, as of the practice of communal accusation, even so we have to call the title by which copyhold tenure is created a claim based on communal testimony.
All the points noticed in the rolls of manors held at common law are to be found on the soil of ancient demesne, but they are stated more definitely there, and the rights of the peasant population are asserted with greater energy. Our previous analysis of the condition of ancient demesne has led us to the conclusion, that it presents a crystallisation of the manorial community in an earlier stage of development than in the ordinary manor, but that the constitutive elements in both cases are exactly the same. For this reason, every question arising in regard to the usual arrangements ought to be examined in the light of the evidence that comes from the ancient demesne.
We have seen that it would be impossible to maintain that originally the steward was the only judge of the manorial tribunal; the whole court with its free and unfree suitors participates materially in the administration of justice, and its office is extended to questions of law as well as to issues of fact. On the other hand, it was clear that the steward and the lord were already preparing the position which they ultimately assumed in legal theory, that in the exercise of their functions they were beginning to monopolise the power of ultimate decision and to restrict the court to the duty of preliminary presentment.
