it shews how inconsistent with our constitution is that republican
notion, which was broached by the enemies of Charles the First, that
the king, by his coronation oath, swearing to observe the laws _quas
vulgus elegerit_, was obliged to pass all bills presented to him, and had
no negative. The meaning, certainly, only extended to his observation
of the laws in being. For if the words were to be construed of future
propositions, and in the sense that those people would put upon them,
the lords also, as well as the king, must be deprived of their power of
dissent, and so indeed, it appears, they expounded it; for when the lords
offended them, by refusing the trial of the king, they confidently enough
with the maxim they had established, turned them out of doors.
But though such as I have mentioned is the constitution of the English
parliament, the form of the legislature in this kingdom hath been for
above two hundred and sixty years very different, the nature of which,
and the causes of its deviation from its model, it is proper every
gentleman of this country should be acquainted with. In the infancy of
the English government in Ireland, the chief governors were generally
chosen by the king out of the lords of the pale, the descendants of the
first conquerors, both as they were better acquainted with the interest,
and more concerned in the preservation of the colony, and also as,
by their great possessions, they were better enabled to support the
dignity of the place, whose appointments, the king’s revenue here being
inconsiderable, were very low. These governors, however, though men of
the greatest abilities, and of equal faithfulness to the crown, were not
able to preserve the footing the English had got soon after the conquest;
but were every day losing ground to the natives, down to the reign of
Edward the Third, which is generally, and, I believe, justly, attributed
to the negligence of the English lords, who, by intermarriages, had
acquired great estates in Ireland. The power of these lord lieutenants
was, in one respect, likewise exorbitant, namely, in giving consent to
laws without ever consulting his majesty, a power, perhaps, necessary at
first, when the country was in a perpetual state of war, and its interest
would not brook delays, but certainly, both for the sake of king and
people, not fit to be continued.
It was natural, therefore, for the king, who found himself ill served,
to change hands, and to entrust this exorbitant power with persons
not estated in the country, and whose attachment he could confide in;
and accordingly, from that time, we find natives of England generally
appointed to the government, to the great discontent of the Irish lords,
who looked upon themselves as injured by the antient practice not being
continued. This discontent was farther inflamed by a very extraordinary
step, which this otherwise wise and just king was prevailed upon to take,
and which first gave rise to that famous distinction between the English
by blood, and the English by birth. This king, and his father Edward
the Second, had granted great estates, and extensive jurisdictions to
many Irish lords of English blood, for services pretended to have been
done, many of which, it is probable enough, as the king alledged, were
obtained by deceit and false representation; and had he contented himself
with proceeding in a legal course, by calling these patents in by _scire
facias_, and vacating them upon proof of the deceit, no person could have
complained; but he took a very different method, as appears from the
writ he thought proper to issue on that occasion. _Quia plures excessivæ
donationes terrarum, tenementorum & libertatum, in terra Hiberniæ, ad
minus veracem & subdolam suggestionem petentium, tam per Edward II.
quam per regem nunc factæ sunt, rex delusorias hujusmodi machinationes
volens elidere, de concilio peritarum sibi assistentium, omnes donationes
terrarum, tenementorum, & libertatum prædictarum duxit revocandas,
quousque de meritis personarum, de causis & conditionibus donationum
prædictarum fuerit informatus, & ideo, mandatum est justiciariis regni
Hiberniæ, quod omnia terras tenementa & libertates predicta per dictos
regis justiciarios aut locum tenentes suos quibuscunque personis facto
scisire facias._ This hasty step alienated the English Irish from the
king and his advisers, and though, after a contest of eleven years, the
king annulled this presumption, the jealousy continued on both sides, and
the Irish of English blood, were too ready to follow the banners of any
pretender to the crown of England.
In the reign of Henry the Sixth, that weak prince’s ministers, jealous of
the influence of Richard duke of York in England, and of his pretensions
to the crown, constituted him governor of Ireland; than which they could
not have done a thing more fatal to their master’s family, or to the
constitution of this kingdom, as it turned out in the sequel; for to
induce him to accept it so eager were they to remove him from England,
they armed him almost with regal powers. He was made lieutenant for ten
years, had all the revenue, without account, besides an annual allowance
from England; had power to farm the king’s lands, to place and displace
officers, and levy soldiers at his pleasure. The use the duke made of
his commission was to strengthen his party, and make Ireland an asylum
for such of them as should be oppressed in England; and for this purpose
passed an act of parliament, reciting a prescription, that any person,
for any cause, coming into the said land, had used to receive succour,
tuition, supportation, and free liberty within the said land, during
their abiding there, without any grievance, hurt, or molestation of any
person, notwithstanding any writ, privy seal, great seal, letters missive
under signet, or other commandment of the king, confirming the said
prescription, and making it high treason in any person who should bring
in such writs, and so forth, to attach or disturb any such person.
This act, together with the duke’s popularity, and the great estate he
had in this kingdom, attached the English Irish firmly to his family,
insomuch that, in Henry the Seventh’s reign, they crowned the impostor
Lambert Simnel, and were afterwards ready to join Perkin Warbeck; and by
this act of the duke of York’s they thought to exculpate themselves[286].
But when that king had trodden down all opposition, he took advantage
of the precarious situation they were in, not only to have that act
repealed, and to deprive his representatives there from passing laws
_rege inconsulto_, but also to make such a change in the legislature, as
would throw the principal weight into his and his successors’ hands; and
this was by the famous law of Poyning’s[287]. By former laws a parliament
was to be holden once a year, and the lords and commons, as in England,
were the proposers. This act, intended to alter these points, gave
occasion to many doubts; and indeed, it seems calculated for the purpose
of not disclosing its whole effect at once. Its principal purport,
at first view, seeming to be intended to restrain the calling the
parliament, except on such occasions as the lord lieutenant and council
should see some good causes for it, that should be approved by the king.
The words are, that “from the next parliament that shall be holden by the
king’s commandment and license, no parliament be holden hereafter in the
said land, but at such season as the king’s lieutenant and council there
first do certify the king, under the great seal of that land, the causes
and considerations; and all such acts as to them seemeth should pass in
the same parliament, and such causes, considerations, and acts, affirmed
by the king and his council to be good and expedient for that land, and
his license thereupon, as well in affirmation of the said causes and
acts, as to summon the said parliament under his great seal of England
had and obtained; that done, a parliament to be had and holden after the
form and effect before rehearsed, and any parliament holden contrary to
be deemed void[288].”
The first and great effect of this act was, that it repealed the law for
annual parliaments, and made the lord lieutenant and council, or the king
who had the naming of them, with his council of England, the proposer
to the two houses of the laws to pass, at least of those that should
be so devised before the meeting of parliament. But the great doubt
was, as there were no express words depriving the lords and commons of
their former rights, whether, when the parliament was once met, they had
not still the old right of beginning other bills, or whether they were
not restrained to the acts so certified and returned. By the preambles
of some acts, soon after made, expressing that they were made at the
prayer of the commons in the present parliament assembled, one would be
inclined to think that the commons, after the assembling the parliament,
had proposed these laws. Certain it is, the latter opinion, supported by
the ministers of the king and his lawyers, gained ground. For, in the
twenty-eighth of Henry the Eight’s reign, an act was made suspending
Poyning’s law with respect to all acts already passed, or to be passed
in that parliament; the passing of which act was certainly a strong
confirmation of what was before doubtful against the house of lords or
commons in Ireland, whether they could bring in bills different from
those transmitted by the council, since here they both consented to the
suspension of the act, to make valid the laws they had passed or should
pass in that parliament, without that previous ceremony[289].
But in the reign of Philip and Mary, by which time this opinion, before
doubtful (for so it is mentioned in the act then made) was, however, to
be maintained, and strengthened, as it added power to the crown. The act
we at present live under was made to prevent all doubts in the former,
which was certainly framed in words calculated to create such doubts, to
be extended in favour of the prerogative. This provides, that as many
causes and considerations for acts not forseen before, may happen during
the sitting of parliament, the lord lieutenant and council may certify
them, and they should pass, if they should be agreed to by the lords
and commons. But the great strokes in this new act were two, the first
explanatory of part of the former in Henry the Seventh’s reign, that is,
that the king and council of England should have power to alter the acts
transmitted by the council of Ireland; secondly, the enacting part, that
no acts but such as so came over, under the great seal of England, should
be enacted; which made it clear, that neither lords or commons in Ireland
had a right to frame or propose bills to the crown, but that they must
first be framed in the privy council of Ireland, afterwards consented
to, or altered by the king, and the same council in England, and then,
appearing in the face of bills, be refused or accepted _in toto_ by the
lords and commons here[290].
It is true, that both lords and commons have attempted, and gained
an approach towards their antient rights of beginning bills, not in
that name, but under the name of _Heads of Bills_, to be transmitted
by the council; but as the council are the first beginners of acts of
parliament, they have assumed a power of modelling these also. The
legislature of Ireland is, therefore, very complicated. First, the privy
council of Ireland, who, though they may take the hint from the lords
or commons, frame the bill, next the king and council of England, who
have a power of alteration, and really make it a bill, unalterable, by
sending it under the great seal of England; then the two houses of lords
and commons, who must agree in the whole, or reject the whole; and, if
it passes all these, it is presented to the king for his assent; which
indeed is but nominal, as it was before obtained.
LECTURE XXIV.
_Villenage—The Servi in Germany, mentioned by Cæsar and
Tacitus, the predecessors of the Socmen or socage tenants in
the feudal monarchy—Villeins in gross and villeins belonging to
the land of the Lord—The condition of villeins—The different
ways by which a man may become a villein—The means by which
villenage or its effects may be suspended._
I now proceed to the lowest class of people that were in a feudal
kingdom, who, indeed, were not any part at all of the body politick,
namely _copyhold tenants_, _tenants in ancient demesne_, and _villeins_,
on which I shall not much enlarge as villenage is worn out both in
England and Ireland; and though the two former are common in England,
yet there are none such in this kingdom. I shall begin with _villenage_,
though the lowest kind, as I apprehend the other two by the tacit
consent of their lords, have for ages, from being villeins acquired the
privileges that distinguished them from such.
In a former lecture I gave it as my opinion, that, while the nations of
the north continued in Germany, there was no such order of men among
them; but that the persons among those people who were called _servi_
by Cæsar and Tacitus, were the predecessors of the _socmen_ or _socage
tenants_ in the feudal monarchy; though they certainly had not all
the privileges the socmen acquired, and that, after their settlements
in their conquests, this rank was introduced, and formed out of their
captives taken in war, in imitation of the Roman slaves. In this I am
strongly supported by my lord Coke, who quotes Bracton, Fleta, and the
Mirror, concerning their origin, to the following purpose: “The condition
of villeins who passed from freedom into bondage in ancient time grew by
the constitution of nations, and not by law of nature; in which time all
things were common to all, and by multiplication of people, and making
proper and private those things that were common, arose battles. And
then it was ordained by constitution of nations (he means by the tacit
consent of civilized nations) that none should kill another, but that
he that was taken in battle should remain bond to his taker for ever,
and he to do with him, and all that should come of him, his will and
pleasure, as with his beast or any other cattle, to give, or to sell, or
to kill. And after, it was ordained for the cruelty of some lords, that
none should kill them, and that the life and members of them, as well as
of freemen, were in the hands and protection of kings, and that he that
killed his villein should have the same judgment as if he had killed a
freeman[291].” This, it falls also to be observed, is the very account
the Roman civil law gives of the original of servitude.
Villenage, therefore, was a state of servitude, erected for the purpose
of doing the most ignoble, laborious, and servile offices to the lord,
according to his will and pleasure, whensoever called upon; such as
the instances _Littleton_ gives, of carrying and recarrying dung, and
spreading it on his lord’s land. _Bracton_, thus defines it _purum
villenagium est, a quo prestatur servitium incertum indeterminatum, ubi
scire non poterit vespere quale servitium, fieri debet mane_, viz. _Ubi
quis facere tenetur quicquid ei præceptum fuerit_. So the most honourable
service, the military one, was free, and its duties uncertain. The next
in rank, the socage was free, and its duties certain. This, the lowest,
was servile, and its duties uncertain[292].
Of those villeins there were two kinds, villeins belonging to the
person of the lord and his heirs, which our law calls _villeins in
gross_, and _villeins belonging to the land of the lord_, and who, in
consequence of the lands being aliened, went over to the new acquirer,
without any special grant. These were in the Roman law, called, _servi
adscriptitii glebæ_, that is, slaves annexed to the soil, and by our
lawyers _villeins_ regardant to a manor; for manors were, antiently,
thus distributed. After the lord had reserved to himself a demesne
contiguous to his castle, sufficient for the purpose of his house and
his cattle, the remainder was generally divided into four parts; the
first for settling such a number of military tenants as might always
more than suffice to do the service due to the superior lord; the second
for socage tenants, to plow the lord’s demesne, or, in lieu thereof,
to render corn, cattle, or other things as stipulated by him; the
third for villeins, for the purpose of carrying dung, felling timber,
making inclosures, and other servile offices, as required by the lord
at his pleasure; and the last share of land, was called the _waste_, or
_common_, being generally woodland, and coarse pasture, the wood for the
lord’s hunting, for supplying him with timber at his pleasure, and the
tenants with reasonable _estovers_ as they are called, out of the woods,
in those three articles, _housebote_ for the support of their houses,
_sloughbote_, for their utensils of husbandry, and _firebote_, for fewel;
and the pasture for the cattle of all the tenants, military, socage,
and villeins in common. This was the usual method of distribution, not
however into equal parts, for the demesne and waste were generally much
the largest, nor always into the same number of parts, for this varied
according to the quantity and quality of the land, whether better or
worse, and the military service reserved, whether lighter or heavier[293].
From this distribution we may see that, in most manors, there was land
which, having been originally set apart to the use of the villeins, was
called villein-land, which retained its name, and was liable to the
same name, and servile services, though it had come into the hands of
freemen, who, consequently, though free, might hold lands in villenage,
and be obliged to do the same uncertain services as a villein was. Few
freemen however we may suppose, would submit to such uncertain burthens,
and therefore when they took such lands, the lord generally reduced the
service to a certainty, and this tenure, because of the low nature of the
duties they performed, was also, though abusively, called _villenage_.
But speaking with propriety, it was socage, the tenant being a freeman,
and the services certain. Certainty of service being, as I have often
mentioned, the grand characteristic that distinguished the socage tenure
from the military above it, and from villenage below it.
Let us now see what kind of property this rank of people had in their
persons, their lands and their chattles; for from what has been already
observed, some kind of property they must have had, or they could not
have performed the services. And the first rule is, that, with respect to
every person but his lord alone, a villein was perfectly a freeman. His
life, his liberty, his property, were equally protected by the law, as
those of any other person. He could acquire, he could alien property, he
could be plaintiff in all kinds of actions whatsoever; but if defendant
he might plead his being a villein. As to his lord, his case was very
different. His life, indeed, his liberty, his limbs, were under the
protection of the king; and if in these he was injured by his lord, the
lord should be punished at the suit of the king, as in the case of any
other subject, but not at his own suit. However, there was two excepted
cases, where the law (for they most certainly punished the two detestable
crimes of murder and rape) gave a villein actions against the lord,
namely an _appeal_, that is an accusation in his own name of murder,
where the lord had killed the villein’s ancestor; and appeal of rape,
where the lord had ravished his _neif_, for so a bond woman, or female
villein, or _nief_, is called in our law. And here if the lord was found
guilty, the villein, or _neif_, were by that judgment manumized for ever.
For it would have been a glaring absurdity, to have afterward trusted
them in the power of the heir of that lord, whom they had hanged. Neither
had a villein, with respect to his daughter, the same power of disposing
her in marriage without the lord’s consent as he had of his son. And this
distinction was founded upon solid reason, for the son of a villein,
after his marriage, and his issue, continued in the same plight as he
was in before, villeins to the lord; but the daughter, by her marriage,
passed into another family, and her issue were either to be freemen,
if her husband was free, or villeins to the other lord, if her husband
was such; so that the lord had a very important interest in his seeing
his villein’s daughter married to another villein of his. This previous
consent, however, wore out by degrees, and by the custom of particular
places, a certain fine was all that the lord could claim for the marriage.
With respect to the lands the villein held from his lord, and also as
to his chattels, or personal fortune, he was only tenant, or possessor
at the will of the lord; for he the lord might resume the one, or take
possession of the other whenever he pleased; but in the interim they were
the villeins, and he might convert the profits of them to his own use,
unless they were also in being and seized; the seizure of them being what
made the absolute property in the lord. And the case was the same with
respect to purchases, or acquisitions of lands or goods; for before the
seizure, or some other public act equivalent thereto, the villein might
alien them as well as the goods he had held before at the will of the
lord, and the alienation was good against the lord, and the reason of
this was undeniable. For it would have put a total stop to all commerce
both of goods and land, if every buyer was obliged, at his peril, to
make enquiry, and to take notice whether the seller may not possibly, in
truth, be a villein to some one of the many lords in the kingdom; and it
would have been highly absurd to allow the lord to seize the lands, or
goods in the hands of the purchaser, when he might seize the purchase
money likewise in the hands of his villein, the seller; I say it is
the seizure, or some other public act equivalent thereto, that vests
the property in the lord; for, in all cases, an actual seizure was not
possible. A few instances will clear this up[294].
If the villein purchases lands in possession in fee simple, fee tail,
life, or years, the lord should, if he had a mind to make them his,
enter, and claim them; or if, for fear of danger, he dare not enter,
should come as nigh to the lands as he dare, and claim them there. And
this was sufficient to vest the estate in the lord, according to the
nature of the estate the villein had in it, and to defeat a future
purchaser; even though the lord should suffer the villein to continue
in the possession. For the purchaser is obliged, at his peril, to take
notice of all legal acts of notoriety, done respecting the lands he
purchases. But if the villein purchases land not in possession, as
suppose a remainder, or reversion, where there is a prior estate for life
or lives, or in tail, in another person in being; here the lord cannot
enter, for that would be disseizing, and doing wrong to the immediate
tenant of the freehold; and if he waited till that estate was spent, and
the remainder or reversion was to come into possession, the villein might
have aliened them before, and so defeated his lord. He should, therefore,
in such case, come to the land, and claim the reversion or remainder,
as his villein’s purchase. And this act presently is sufficient to
vest them, the reversion or remainder in him, and to defeat a future
purchaser. So if a villein purchased an advowson, or presentation to
a living, where the parson of the church is living, the lord cannot
present, which is the proper act to gain possession of the advowson. For
the church is full of an incumbent, but he shall come to the church,
and claim the advowson as his villein’s purchase; and this vests the
advowson in him, and will defeat a future alienation by his villein. In
the same way with respect to goods; the lord may either seize them, and
retain them in his own hands, or may come to the place where they are,
and openly claim them before the neighbours, and seize a part of them in
the name of the whole goods his villein _hath_; and this shall vest the
property in him, though he leaves the possession still in his villein;
and if he adds the words or _may have_, it vests the property of goods
after acquired, though it is otherwise of lands.