the villein can bring no action relative to property against him; for
all such actions, being either to recover the thing itself, or damages
for the wrong done, in both cases, it would be useless, and improper.
For, inasmuch as the lord had right to take, the taking could be no
injury, and to give damages even for a personal injury would be absurd
and nugatory, since the lord might immediately, as soon as recovered
rightfully, retake them from his villein. Therefore Littleton says, “a
villein cannot have an appeal of maim against his lord that hath maimed
him[295].” For, as the law then stood, _maim_ was only punishable by fine
and imprisonment, at the suit of the king, or by damages, in an appeal
of maim, at the suit of the party. Neither could he have an appeal of
robbery against him, though that offence, with respect to freemen, was
capital; for the lord having a right to take, could not be guilty of
robbery. However, there was one excepted case, wherein the lord could not
take things out of his own villein’s hands, and wherein the villein also
might maintain an action against him; but then, in this case, the villein
acted not in his own right, but in that of another, _in autre droit_, as
our law says, which was when a villein was made an executor. For here he
acted not in his own right, but as representative of his testator, for
the performance of whose will, and for no other purpose, he had allowed
to him this possession against his lord, and this right of action against
him.
Let us now see how many different ways a man might be a villein, how many
ways the villenage, or its effects, may be suspended, and how many ways
it might be totally destroyed.
Now a man might be a villein either by birth, or become such by his own
act. With respect to birth, our law considers only the condition of the
father, whether free or villein, contrary to the civil law, where the
maxim is _partus sequitur ventrem_. Our rule seems more agreeable to
natural reason, as the husband is master of the family, the head of
the wife, and supposed, at least, the principal party in the production
of the offspring. Yet the Roman law is not therefore to be charged with
absurdity, it proceeding on a principle peculiar to itself, namely,
that they allowed no matrimony but between free persons; a cohabitation
between two slaves, or between a slave and a free person, was called
_Contubernium_, not _Nuptiæ_, nor _Matrimonium_; and to such a commerce
their law did not give such continuance, or entire credit, as to presume
the father to be certain. A freewoman who so far disgraced herself as
to cohabit with a slave, they supposed equally guilty with others; and
therefore, as the father was uncertain, _in favorem libertatis_, they
presumed him a freeman. And, on the contrary, though a freeman cohabited
with a slave, that law gave no credit to her constancy, but rather
supposed the issue begat by one of her own rank, another slave. But in
England, if the father was free or slave, the issue was so; for our law
admitting such marriages as good ones, upon the maxim, _whom God hath
joined let no man sunder_, gave them an entire credit. What then shall we
say was the case of _bastards_, where the father was entirely unknown,
and who were _filii nullius_. Some old opinion in England indeed held,
that if the mother was a neif, because she was certain, the issue should
be a villein; but this doctrine was exploded, and it was settled that, as
the child was, by our law, to follow the rank of his father, and who that
was, was entirely uncertain, it should be universally presumed in favour
of liberty, that the father was a freeman, whatever the mother was. A
bastard, therefore, could not be a villein, but by his own act; and how a
man could become so I shall next proceed to shew[296].
There was then but one way for a freeman born to become a villein, I mean
in the latter ages, when the practice of making slaves of captives taken
in war went into disuse, and that was by his admission and confession.
For _volenti non fit injuria_ is a maxim of all laws, and in the antient
times of confusion, it might be an advantage, at some times, to a poor
freeman to put himself, even in this law manner, under the protection of
a lord that was both powerful and humane. But so careful was the English
law of liberty that it did not allow every confession or admission to
conclude against a man’s liberty, but such an one only as could not
proceed from mistake, inadvertence, or constraint. The confession must
be made in a court of record, and entered on record. Then indeed was
it conclusive, for it is a maxim of our law, that there is no averring
against a record, that is, charging it, or the contents thereof, with
falsehood. For if that could be, property could never receive a final
determination, nor a man be certain that the suit that he had obtained
might not be renewed against him[297].
But the law went farther in its precautions, and would not suffer any
confession, even in a court of record, to destroy liberty. If a man came
voluntarily into such a court, and made an extrajudicial confession,
that is where there was no suit depending, and contested in that court,
it could not bind him. The confession, to bind, must be made in such a
court, and in a suit litigated there; so that there might be no room
afterwards for pretending surprize, error, constraint, or terror. Thus,
if a stranger brought any action against a man (for if the lord brings
any action, except one kind only, against his villein, he the villein, is
thereby manumized, as I shall observe hereafter) I say, if a stranger, A,
brought an action against B, and B, to bar A, of his action, pleads on
record, as he may, that he is villein to C, this confession shall bind
him, and he shall be C’s villein, though he was in truth a freeman; yea
though A, in that very action, had replied that B was a freeman, and had
even proved him such: And indeed this was but a just punishment for his
fraudulent attempt to deprive A of his action.
Again, if a lord, claiming a man to be his villein, bring the writ called
_nativo habendo_, the proper one to prove this fact, that the defendant
was his villein, and the defendant confesses himself judicially so to
be, he and his issue are bound, though he was free before; or if the
defendant, in such case, pleads he is a freeman, and the lord, to prove
him his villein, produces the defendant’s uncles, or cousins, who swear,
that they and their ancestors, from time immemorial, or from a time
antecedent to the separation of family, have been villeins to that lord
and his ancestors, whatever becomes of the original suit, they themselves
thenceforwards are the lord’s villeins; and though they were in truth
free, it is but a just punishment, as I observed before, for their foul
attempt of reducing their kinsman to slavery. However, as we must allow
that every man is fond of his own and his posterity’s liberty, we must
accordingly believe that these instances of freemen becoming slaves
voluntary were very rare, and, that the majority of villeins were such as
were so by birth. Before I leave this head, I should observe that, with
respect to the issue of men becoming villeins by their own confession,
the issue born after the confession alone were bond, as being so born,
and that the children born before, retained the liberty they had acquired
by their birth.
Villenage could not only be totally destroyed by many means, but also
might be suspended for a time, and afterwards revive. The suspension
arose from some subsequent obligation the villein, or nief, happened to
lie under, which the law considered, and favoured more than the lord’s
right in his villein, or nief; therefore, if the king made a villein
a knight, such a creation, being for the defence of, and to encrease
the military strength of the realm, and the person obliged to serve
accordingly, his state of villenage was suspended, not destroyed. For, if
he was afterwards degraded from his order, he became the lord’s villein
again, so if a villein became a monk professed, now was he obliged to
live entirely in his monastery, and spend his time in prayers, and other
spiritual exercises, duties inconsistent with his service as a villein;
and those being performed to God were preferred to the interest of the
lord; but if such monk was deraigned, that is, degraded from his order,
and turned out of his monastery, he became a secular man again, and the
lord’s right revived. But if a villein is made a secular priest, he
not being confined to a monastery, nor his whole time dedicated to the
service of God, he is still a villein and obliged to attend his lord at
all times, when the stated times or occasions of his new duty do not
employ him. So if a nief marries a freeman, the right of the husband
in his wife, as founded on the law of God and nature, is preferred to
the lord’s, though prior, which is founded only on the constitutions of
nations: She, therefore, is priviledged, and a free woman during the
coverture; but if the husband dies, or a divorce happens, then is she a
nief again. But it may be asked, shall the lord thus, without any fault
of, or consent from him, be, by the act of others, deprived, even for a
time, of his right in his villein, and the advantage thence arising? I
answer, though the law, for the public good, suspended the villenage,
it did not leave the lord without redress for the wrong done unto him.
For, in the cases of profession and marriage, the lord shall have his
action against, and recover the damages he may sustain, from the abbot
who had admitted his villein a monk, or the husband who married his nief;
but against the king who has knighted his villein, he cannot have an
action, for, according to the principles of the feudal law, to bring an
action against the king is a breach of fealty: it is charging him with
injustice, and with breaking that mutual bond, whereby he is tied to his
vassals as strictly as they are tied to him. But he shall not be without
remedy. He shall have his action, and recover damages against those, who
by their aid, advice, counsel, or recommendation prevailed on the king
to make his villein a knight. Coke mentions two cases more, wherein I
cannot say so fully as he says, the _villenage itself_ is suspended, as
that the _effects_ thereof are suspended, as to a certain place; and both
these are in honour of the king, one is when a villein escapes from his
lord, and has continued for a year and a day in the demesne of the king,
doing service to him as his villein. The lord can neither seize him, nor
even bring a writ of _nativo habendo_ against him while he continues in
the royal demesne. The other is where a villein is made a secular priest
in the king’s chapel. The lord cannot seize him in the presence of the
king[298].
We shall next have a more agreeable subject, and by considering the
many ways the law of England hath contrived to destroy villenage, have
the pleasure of observing its natural bent toward the equal liberty of
mankind, and how it rejoiced to shake off the shackles of servitude, even
in those days when it admitted it.
LECTURE XXV.
_The methods invented to destroy villenage—The bent of the law
of England towards liberty—Copyhold tenants—Tenants in ancient
demesne._
Relative to villenage, the following are the words of the antient judge
Fortescue, who wrote a treatise on the grounds of the English law, for
the instruction of his pupil, the unfortunate son of the unfortunate
king Henry the Sixth. _Ab homine, & pro vitio introducta est servitus;
sed libertas a Deo hominis est indita naturæ. Quare ipsa ab homine
sublata semper redire gliscit, ut facit omne quod libertate naturali
privatur[299]._ We are now to see how, and in how many ways, our law
favours this natural propensity to liberty. And the first and plainest
is a direct enfranchisement, or, as the Romans called it, _manumission_.
This, in the ancient times, before writing was common, used to be done,
as all their important acts, (for the better preserving them in memory)
in great form. _Qui servum suum liberum facit, in ecclesia, vel mercato,
vel comitatu, vel hundredo_, (_that is, the county court or hundred
court_) _coram testibus, & palam faciat, et liberas ei vias, & portas
conscribit apertas, & lanceam, & gladium, vel quæ liberorum arma in
manibus ei ponat[300]._ But after the use of writing became common, the
method was by the lord’s deed (mentioning him to be his villein, and
expressly infranchising him) sealed by the lord’s seal, and attested by
proper witnesses, as other deeds between freemen should be[301].
Before I go farther, I should observe the favour of the English laws to
liberty in that, by it all manumission, of what kind soever, was absolute
and irrevocable. Once a freeman, and ever so; whereas by the civil law, a
freedman was bound to many duties towards his patron. A relation between
them still subsisted, and if he was guilty of ingratitude, that is, of
any of the many offences their law marked as such, he was again to be
reduced to slavery.
But besides this species of express enfranchisement, there were many
implied ones. First, by the a act of the lord alone, and others by
construction of law, upon the act either of lord or villein. By the act
of the lord alone, namely, if he had entered into any solemn certain
contract with his villein, giving him thereby either a permanent right of
property, or a power to bring an action against his lord. In such cases
he was instantly manumized, without express words; for, otherwise, he
could not have the benefit of the gift intended, and the lord’s act, in
such cases, should be construed most wrongly against himself. As if the
lord gives land to his villein and his heirs, or to him and the heirs
of his body, or to him for life; immediately on the giving livery and
seizin, which was, as I have often observed, what compleated an estate of
freehold, and made it irrevocable, the villein became free. Otherwise he
could not enjoy the benefit of the grant, or protect it against his lord.
The same was the case if the lord gave him any certain property, as a
bond for payment of a sum of money, or a yearly annuity, or a lease of
lands for years. The villein could not securely enjoy the benefit of
the gift, without being able to bring an action against his lord, and
consequently being free against him. Yea, though the annuity or lease of
land was but for years, the manumission was absolute for ever, and not
suspended for the years only; which was different from the cases I put
in my last lecture, of villenage being suspended by the act, not of the
lord, but another person; but here where the lord himself, by his own
act, set him free, though but for a time, he was free for ever. But if
the lord gave his villein lands to hold at will; this being of the same
nature with the proper holdings of villeins, and the lord having reserved
in his own breast a power of ousting whenever he pleased, the villein
gaining thereby no certain property, he continued in his former situation.
Secondly, a man may be enfranchised without express words, by
construction of law, operating on the act either of the lord or villein.
If a lord had a mind to dispossess his villein of lands, or of goods, he
had a right to enter on the lands, or seize the goods, without ceremony;
but if, waving this right, he brought an action against him for them, or
if he brought not any action personal against him, but the one of _Nativo
Habendo_, the villein was enfranchised, whether the lord recovered or
not, or whether he prosecuted the action or not. For when he omitted
the easy remedy the law appointed, and brought his villein into court
to defend his right, he admitted him to be a person that could stand in
judgment against him, and litigate with him; that is, to be a freeman.
But it must be observed this enfranchisement did not commence immediately
from the taking out the writ, which was the commencement of the action,
but from the appearance of both plaintiff and defendant, and this for
the benefit of the lord; for otherwise, as Coke observes, a stranger,
by collusion with a villein, might take out an action against him in
his lord’s name. To which I may add, that the lord might have intended
his action against a freeman of the same name with the villein, and the
sheriff might have summoned the villein by mistake. In this case it was
hard that the lord should suffer. He therefore might, when he saw the
villein ready to appear, nonsuit himself, that is, decline appearing; and
then the villein could not appear, and therefore was not enfranchised.
But if he went on, and suffered his villein to appear, and consequently
enabled him to plead against him, he must have abided by the consequences
of his own folly, and his nonsuiting himself afterwards could in no sort
avail him[302].
A villein might likewise be manumitted by his lord’s bringing a criminal
action against him, though this was no admission of permanent property
in him, or of his capacity of standing in law against him as a freeman;
as if the lord brought an appeal of felony, as of murder, or robbery,
against him. If he was acquitted he might be enfranchised, because he
might be entitled to recover damages for the malicious prosecution, and
the danger his life had been in; and damages he could not recover without
being a freeman. I say _might_ be enfranchised, because he _might_
recover damages. For in this case a distinction is to be taken, whether
the villein was, before the appeal brought, indicted at the suit of the
king for the same offence, or was not. If he was not, the acquittal
shewed the prosecution to be malicious, and the villein was entitled to
recover damages, and so to be free. But if he had been indicted, there
were no grounds to suppose the appeal brought maliciously. The finding
the indictment by the grand jury was a presumption of his guilt. The lord
had a rational ground for bringing his appeal, and he had a right to
bring it for the punishment of his villein, if guilty. Otherwise he could
not have him hanged, for the indictment at the king’s suit might not be
prosecuted, or the king might pardon. In such case, therefore, there
being no malice presumed, the law gave no damages, and consequently no
enfranchisement. But the lord’s bringing the writ called _Nativo habendo_
against his villein, namely, claiming a man to be his, as such, was no
enfranchisement, for that would defeat the ends of the suit; and the law
allowed the lord a power to seize his villein without further ceremony,
it did not precisely compel him to that method only, for his villein
might be at too remote a distance, or under the protection of persons
too powerful. But if, after appearance, the lord suffered himself to be
nonsuited, in this action, it was an enfranchisement.
The law, likewise, enfranchised in some cases on the act of the villein
himself, as if the lord had been found guilty in an appeal of murder,
brought by his villein, or of rape by his nief; but these I mentioned in
the last lecture, and the reason is apparent.
By all these various ways the number of villeins insensibly diminished,
and the number of freemen continued to encrease in every reign; but what
gave the finishing stroke to servitude were the confusions occasioned by
the two contending houses of York and Lancaster; when the whole kingdom
was divided, and every lord obliged, even for his own security, to take
part with one side or the other; and when once engaged, necessitated
to support his party with his whole force. Villeins were, therefore,
emancipated in prodigious numbers, in order to their becoming soldiers.
Many of such, also, who had not been formerly emancipated, in those times
of distraction, fled for self-preservation to London, and other cities,
where, being absent from their lords, they were looked upon as free; and
where they generally continued, even after these troubles had ceased,
unknown to the heirs of the antient lords; and in consequence, for want
of proof of their servitude within fifty years last past, (which was the
time of limitation for this action) most of them and their posterity
became free. When things afterwards became composed, under Henry the
Seventh, many of these persons were by the heirs of their former lords
reclaimed, and recovered as villeins, though, undoubtedly, the far
greater part escaped undiscovered. But even in those actions that were
brought, both judges and juries were very favourable to the persons
claimed; the juries out of favour to liberty, and the judges, I presume,
following the policy of that reign, one of the great objects of which was
the depression of the great lords; to which nothing could more contribute
than the lessening the number of the persons who were held in such strict
dependance by them, and the profits of whose industry they had right to
seize, to encrease their wealth and their power[303].
Another thing which had, long before that period, lessened their numbers,
was the rise of copyhold tenants. These are persons who are said to hold
lands _at will, but according to the custom of a manor_, and those arose
from the villenage tenants, as I conceive, by the following means. When
a succession of mild and humane lords had neglected, for a long time,
to seize their villeins goods, or to exact villein service, so that
no memory remained of their having made use of such a practice, they
came to be considered in another light, and became exempted from that
seizure by prescription. For the lord claiming a villein in a _nativo
habendo_, must plead, and prove, that he, or his ancestors, had exacted
such services, from the person claimed, or his ancestors, otherwise he
failed. Therefore, in the case I have mentioned, though a future lord
had an inclination to depart from the practice of his predecessors, and
revive his rights, he could not recover them for want of proof; and these
persons so long indulged, became freemen. However their lands, (they
being only tenants at will) might still be resumed, until, at last, they
got, likewise, by the same kind of prescription, a permanent right in
them also, in the way I now shall relate.
If a lord had given his villein any certain estate, it was, as I before
observed, an absolute manumission for ever. But some lords, either in
reward for services done, or out of bounty, gave many of those underling
tenants, if not an absolute right to their holdings, at least, a fair
claim and title to a permanent estate, which, in honour, the lord or
his heirs could not defeat, and yet kept them in a particular kind of
dependance, between freedom and absolute villenage. But the question was
how this was to be done; for if the lord had given him a deed, to assure
him the lands, and so entered into a contract with him, he was entirely
emancipated. The way was then for the lord to enter into the roll of his
court, wherein he kept the list of his tenants, that he had given such
an one an estate at will, to hold to him and his heirs, or to him and
the heirs of his body, or to him for life or years; and these directions
being constantly complied with, grew by length of time into established
rights, and they came to be called _tenants at will, according to the
custom of the manor_.