igo ENFORCEMENT OF THE STATUTES OF LABOURERS 



ing the difference between the latter and the old "covenant" 

 of the common law; the discussion in this section is re- 

 stricted to cases in which free men are concerned. The 

 essential distinction although not specified by the ordin- 

 ance is made clear by the interpretation of the courts; in 

 several important cases attention is called to the fact that 

 an action of covenant at common law can be maintained only 

 when specialty can be produced, that is, when the covenant 

 had been made under seaV while a retainer under the or- 

 dinance is an engagement not based on a written document.^ 

 I have found no reference to the necessity of witnesses for 

 the validity of such a retainer ^ and only one instance of the 

 mention of the taking of an oath/ The contract seems to 

 be merely a parol agreement, with no formalities prescribed 

 as to the method according to which it was to be made,*^ 

 but plainly indicates a status different from that of service 

 without any agreement at all, or pro vohintate^ In a 

 number of cases it is emphasized by the courts that the mere 

 making of a contract of this kind, even if the service has 



^ Cases 28 and 32, app., F, 5; cf. pt. ii, ch. i. 



'Case 31, app., F, 4; "communis retencio siue conduccio." The 

 term " conuencio " is frequently used; e. g., in case 9, app., F, 6. It is 

 to be noted that both on the Plea Rolls and in Fitzherbert's com- 

 mentary, the ordinance is commonly referred to as the statute; I shall 

 try in this section to distinguish between them. 



^Such as are suggested, e. g., in the Waterford custumal; see p. 159, 

 note 6; cf. also app., 249, for reference to witnesses in a compulsory 

 service case. 



*Pat., 28, pt. I, m. 20, 16 Jan.; " Pro priore et fratribus deWytham." 



^Cf. the account of the borough law of agreement; p. 159, note 6. 



•^De Banco, 50, Mich., 545, York. The request of the insurgents 

 recorded in the Anominalle Cronicle (printed by Trevelyan in E. H. R., 

 xiii, 517) is to the point: "que null ne deveroit servire ascune home 

 mes a sa volunte de mesme et par couenante taille." Mr. Kriehn has 

 ! already pointed out that this is a demand for the repeal of the statutes of 

 labourers; "The Social Revolt in 1381," in A. H. R., vii, 282. 



