22 Wisconsin Academy of Sciences, Arts, and Letters. 



ance, a minimum o£ tenants. Kow the Court Baron of the Eng- 

 lish manor fell if there were not at least two freeholders to take 

 part in it. It followed, moreover, the feu(^al rule, that the judg- 

 ment, both as to law and to fact, was given by the tenants, the suitors 

 or peers of the court — the lord or his steward only presiding. The 

 name, moreover. Court Baron, is hard to explain by English 

 etymology ; but, as the French maaorial court was called Cour 

 de Baronnie, it is easy to suppose that the name was introduced 

 along with the feudal system itself. On the other hand the cus- 

 tomary tenants, the compact and organic body of the peasantry, 

 had no function in this court, except that of lookers-on. They 

 had their own court — the Customary Court — whose powers 

 were "administrative rather than judicial," f in which, therefore, 

 they had no real power, such as the freeholders had in the Court 

 Baron, being hardly more than witnesses. 



This was, in short, such an assembly as that of the members of 

 a corporation might be expected to be after the corporation had 

 lost its effective powers ; we ma}^, therefore, consider it to repre- 

 sent the assembly of the mark or village community, reduced to a 

 servile status. The freeholders, it should be remarked, " are not, 

 generally speaking, suitors at the Customary Court," from which it 

 follows, almost of necessity, that they did not, as freeholders, have 

 any shcre in the administration of the community, but only in so 

 far as they held customary lands. 



In the next place, the rights of the two classes in the waste dif- 

 fered : each had the right of common appendant to his arable land, 

 but that of the copyholder or customary tenant was by the cus- 

 tom of the manor, while that of the freeholder was " by virtue of 

 his individual grant, and as incident thereto."^ This would show 

 that here too the customary tenants represented immemorial anti- 

 quity, the freeholders a special and recent grant. 



It remains to supplement these general arguments by special 

 examples of the genesis of freehold. This is not easy to do, inas- 

 much as the period of the development of this class, the cen- 

 tury following the Norman Conquest — is very barren in docu- 



f Digby, p. 216. 



*Digby, p. 215. Williams, Law of Real Property, 467, compare, 483, 



