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Mills and Maidens

Document Cited authorities 11 Cited in Related
AuthorChristopher Jessel
Pages297-306

Chapter 17


Mills and Maidens

mills, mulctures, … privileges, easements, profits, advantages, rights, emoluments

17.1 MISCELLANEOUS RIGHTS

This chapter deals with several miscellaneous rights of the lord, most of which are now obsolete or of little importance, but some have left traces in the modern law. They fall into two categories. The first is rights which benefit land or rights which may belong to any landowner and are not specific to manors. Thus, demesne land may benefit from an easement, such as a right of way or a right of drainage. Waste land does not usually benefit from easements, but if it is isolated from a highway a means of access may be necessary. Such rights go with the land under s 62(1) rather than s 62(3). It is now rare for a common law easement to be recognised as having existed since before 1189 but in the context of the manor it may be possible, for instance, for water rights. A manorial customary way must predate 1189. Manorial lands may also be subject to easements.

Profits are an important feature of the manor. These include rights of common
(10.3), some mineral rights (11.1) and sporting and fishing rights (12.4). As s 62 is concerned with implications in a conveyance it may be relevant when part of the manorial lands is sold. In Duke of Devonshire v Pattinson1the duke held the manor of the Socage of the Castle of Carlisle which included fishing rights in the River Eden. In 1667 and 1846 the then owners of the manor sold fields abutting the river to Carlisle Corporation. The corporation claimed that the sales impliedly included the bed of the river and the fishing rights. The Court of Appeal affirmed the decision of the judge that the river and fishing rights in this case were a separate property and any implication was excluded. A manor may also benefit from common law profits such as sporting or mineral rights dating from before 1189, and manorial lands may be subject to similar freehold rights.

1 (1888) LR 20 QBD 263.

298 The Law of the Manor

Privilege literally means private law. The basis of the manor was its customs, which created a special jurisdiction, but in this context it is more likely that privilege refers to some exemption from the general law. Privilege is used in the context, for instance, of legal privilege, in that lawyers are not liable to disclose things their clients have communicated in confidence, as well as public matters, such as in defamation where certain remarks are privileged. Members of Parliament also enjoy certain privileges in the public interest. The lord of the manor does not have any special privilege of that sort. However, it is possible that, as mentioned in 9.5, the term ‘manorial rights’ with the specific meaning given in various statutes, including the Land Registration Act 2002, may constitute a privilege for the purposes of the Law of Property Act 1925, s 1(2)(a). A liberty (16.3) can be a privilege.

Similarly, rights and advantages are used in a general sense. An advantage might be the power of the lord to join in the use of the common even when the rights of commoners have not been satisfied. Other rights are considered below.

17.2 BANALITIES

‘Banalities’ is not an English term but has been taken from French and German law to represent a group of English rights.2The most important relates to mills which can still be a valuable asset. Old mills, millponds and leats can still produce problems. The ‘ban’ was the name given to the group of great lords who followed the Emperor Charlemagne and his successors and who also followed the kings of Germany and France when the empire broke up. The same word was used for the assembly of those followers and for the decrees of the assembly. As the empire and kingdoms weakened the decrees became merely negative. (The word ‘ban’ in English now means to prohibit something.) For example, in 1521 the Diet of Worms was convoked to consider putting Martin Luther under the Ban of the Empire, although he escaped before it could be put into force. The assembly could also banish someone from the empire. There is a slightly different meaning when a marriage is announced and anyone who knows a good reason why it should not take place, or be banned, is asked to appear when the banns are read.

With the disintegration of government on the Continent, royal power was taken over by lesser lords. The word dominus, which once meant emperor, came to refer to any local seigneur. Those seigneurs likewise claimed the right to a ban

2 See Ganshof, FL and Verhulst, A, ‘Medieval Agrarian Society in its Prime, France, the Low

Countries and Western Germany’, in Postan, M (ed), The Cambridge Economic History of Europe Vol 1 (Cambridge University Press, 2nd edn, 1966) 334; Poly, J-P and Bournazel, E, The Feudal Transformation 900–1200 (Holmes and Meier, 1991) 25; Encyclopaedia Britannica (1911) Ban.

within their jurisdiction. The most common were the ban de moulin for mills, the ban de four for ovens (furnaces) and the ban de vin for the production of wine. All were seigniorial monopolies and were forbidden to others within the seignury. In L’Ancien Regime3Alexis de Toqueville refers to other banalities existing in France before the French Revolution, including cloth-presses, wine-presses, butcheries and the keeping of bulls, but these were rare. The Ban of the Vintage was common and in Burgundy the seigneur could gather his crop of grapes one day before any other wine-grower. In France to this day there is a formal ban de vendage, so that if a grower wishes to harvest grapes...

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