OF THE QUESTION OF CONDITION, AND OF VILLEINS-BORN.
CHAP. I.
Our subject leads us in the next place to treat of Pleas concerning
the Conditions of persons. Questions upon this subject arise, when
any one would draw another, from a state of freedom, into that of
Villenage;[140] or when any one, being in the latter state, seeks to
emancipate himself. When any one claims another who is in Villenage as
his Villein-born,[141] he shall have the Writ _de nativis_, directed
to the Sheriff; and by that Writ he shall, before the Sheriff of the
County, claim the Villein against him, who holds him in Villenage. And,
if his Villenage be not denied before the Sheriff in the County Court,
then the Plea concerning such Villein-born shall proceed before the
Sheriff, as we shall presently explain, between the person claiming,
and the person in possession, of the Villein. But, if the Villein
allege himself to be a freeman, and give security to the Sheriff to
prove the fact, then, the suit shall cease, as far as applies to the
County Court; because the Sheriff ought not any farther to interfere
in it.[142] But, if the Sheriff persist in hearing the suit, then,
he whose condition is questioned shall complain to the Justices, and
shall obtain the King’s Writ, in order that, if he should give security
to the Sheriff to prove his freedom, the suit may be removed before
the Justices of the King’s Court, and in the mean time, the party be
unmolested. The Writ is as follows.—
[Footnote 140: _Villenagium._ “_Villein_ is from the French
word _Villaine_, and that, _à villâ, quia villæ adscriptus
est_.”—“_Villenagium_, (as in like cases hath been said where the
termination is in _age_) is the service of a Bondman. And yet, a
freeman may do the service of him that is bond.” (Co. Litt. 116. a. See
also Cowell ad voc. and Mirror, c. 2. s. 28.)]
[Footnote 141: _Nativum._ In the 6th chapter of the present Book our
Author explains the sense in which he uses the term—_nativi à primâ
nativitate suâ_. “In Glanville,” says Lord Littleton, “the _nativi_ are
comprehended under the Term _Villenagium_, which is used by that Author
synonymously with Servitude, and in opposition to freedom, as a state,
not a tenure.” (3 Hist. Hen. 2. 189.) Upon the Term _nativus_, Sir
Edward Coke observes, “in the common Law he is called _nativus, quia
pro majore parte natus est servus_.” (Co. Litt. sed vide Craig L. 1.
Dieg. 4. s. 6.)]
[Footnote 142: In this the Mirror, (c. 2. s. 28.) concurs.]
CHAP. II.
“The King to the Sheriff, Health.[143] _R._ complains to me that _N._
draws him to Villenage, although he is a freeman, as he says. And,
therefore, I command you that, if the said _R._ make you secure of
prosecuting his claim, then, that you put the suit before me, or my
Justices, on such a day; and, in the mean time, you cause that he be in
peace; and summon, by good Summoners, the aforesaid _N._ that he be
then there to shew why, he unjustly draws him to Villenage. And have
there, &c.”
[Footnote 143: Vide F.N.B. 171, 172.]
CHAP. III.
By the same Writ, the party who lays claim to the other, as being
his Villein, shall be summoned; and a day shall be appointed him on
which he may prosecute his claim. But, if on the day appointed, the
person who is claimed as a Villein should neither appear, nor send
a Messenger, nor Essoin, let the same course be pursued, as that
before described in treating of Pleas, where the Pledges are to be
attached. But, if he chuse to essoin himself, he may avail himself
of the same number of Essoins, and on the same occasions as we have
already mentioned. But if the party who claims the other as his
Villein, neither appear on that day, nor send, let the other party,
if present, be dismissed unconditionally, under such form, namely,
that the claimant shall recover so much as by Law he ought to recover,
concerning which principle we have spoken more fully, in the preceding
part of this Treatise. In the mean time, the party who is claimed as a
Villein shall be in Seisin of his freedom.
CHAP. IV.
Both parties being present in Court, the freedom shall be there proved
in this manner: the party who claims his liberty, shall produce a
number of his nearest relations and kindred, springing from the same
stock from which he descended. If their freedom be recognized and
proved in Court, the party who demands[144] his freedom shall be
liberated from the yoke of servitude. But, if the free condition of
those produced be denied,[145] or a doubt be entertained respecting it,
recourse shall be had to the Vicinage, whose Verdict shall ascertain
the fact, whether those produced are free, or not: and, according to
its decision, the matter shall be adjudged. But, if the party who
claims the other as his Villein, should bring forward other persons to
prove the contrary, namely, that such persons as the claimant has now
brought forward are his Villeins-born, and that they sprung from the
same common stock with him, whom he claims as a Villein-born, then,
in like manner, should those produced by both sides be recognized as
of common kindred, let it be inquired by the Vicinage,[146] which of
them are the nearest to him; and, according as the inquiry turns out,
let the Judgment be given. In a similar manner, if those produced by
one party should[147] deny in any respect his relationship, or, if
a question arise concerning it, every doubt of this nature shall be
determined by the Vicinage. The freedom having been sufficiently proved
in Court, then, the party whose liberty has been questioned shall be
absolved from the claim of him who would draw him to Villenage, and
for ever freed from it. If, however, he should fail in his proof, or,
if he should be recovered by his Adversary as his Villein-born, he
shall be irrecoverably adjudged to belong to his Lord, together with
all the Chattels he possesses. The same form and order are observed
in pleading, when a freeman is claimed as a Villein, or when any one,
in a state of Villenage, aspires of his own accord to freedom. For
this purpose, the party whose freedom is impeached shall come to the
King’s Court, and pray, that the suit might be removed into the same,
which being conceded, the suit will then proceed in the form before
stated. It must be remarked concerning this Plea, that the Duel cannot
be resorted to, in order to prove the freedom of any one from his
Birth.[148]
[Footnote 144: _Proclamat_, according to the Bodl. MS., which I follow,
_proclamo_, _appello_, _provoco_, &c. (Spelm. Gloss. ad voc.)]
[Footnote 145: “Yet,” says the Mirror, “if the Defendant can shew
a free stock of his Ancestors, either in the conception, or in the
birth, the Defendant hath always been accounted for a freeman, although
his Father, Mother, Brother, and Cousins, and all his Parentage,
acknowledge themselves to be the Plaintiff’s Villeins, and do testify
the Defendant to be a Villein.” (Mirror, c. 3. s. 23.)
We must suppose that this was an improvement _posterior_ to the time
of _Glanville_, since though some part of the Mirror was probably
written before the conquest, the other part was written subsequently to
the Reign of Henry the 2nd. Few ancient law books would perhaps stand
higher than the Mirror, could we clearly ascertain what was original,
what was superadded. At present, one part of the work is often a direct
refutation of another part.]
[Footnote 146: “It shall be tried by an Assise,” says the Reg.
Majestatem, (L. 2. c. 11.)]
[Footnote 147: “_Acknowledge him to be related to them, whilst those
produced by the other party should_”—Added by Cotton., Bodl. and Dr.
Milles’s MSS.]
[Footnote 148: “_Or to disprove it._” Bodl. and Dr. Milles’s MSS. The
Regiam Majestatem is yet more unrestrained—“But, it is to be noted,
that single combat shall not have place in any plea, to prove or
disprove the liberty or Estate of any man.” (L. 2. c. 11.)]
CHAP. V.
There are many modes by which a Man, in a state of Villenage, may
acquire his freedom.[149] Thus if his Lord, being desirous of
emancipating him, releases him, as well from all his own claims, as
those of the Lord’s Heirs: or, if the Lord give or sell him to another,
for the purpose of liberating him. It must, however, be observed,
that no one in a state of Villenage can purchase his freedom with his
own Money; for, in such case, he may, according to the Law and Custom
of the Realm, be again recalled by his Lord to a state of Villenage,
all the Chattels of a Villein-born being understood as so absolutely
in the power of his Lord, as to preclude the former, at least with
his own Money, and as against his Lord, from redeeming himself from
Villenage. But, if a stranger with his own Money purchase the Villein’s
freedom, the Villein may for ever after maintain his freedom against
his Lord, who has sold him. When any one has released a Villein, from
all right which he, or his Heirs, could claim in him, or has sold him
to a stranger, the Villein who has been thus enfranchised may for ever
after defend his freedom, as well against the Lord himself, as his
Heirs; whilst he can prove the fact in Court, either by a Charter, or
by any other lawful means. And the question may even be decided by the
Duel, if any one deny, that the party has been liberated from his state
of Villenage, and, there be a proper Witness, who, having both seen and
heard the very fact of Enfranchisement, is ready to prove his freedom
in Court.
[Footnote 149: The Mirror enumerates many other modes by which a
Villein was enfranchised, besides those stated by Glanville, which
appear rather to be put for examples, than as comprising all the
instances of emancipation; and the Mirror confirms most, if not all, of
the Examples in the text. (c. 2. s. 28.) The Regiam Majestatem informs
us, that Holy Orders enfranchised, if taken with the consent of the
Lord. The Villein was also enfranchised, if the Lord seduced his wife,
for the Law permitted the Villein to receive no other amends. The
Villein was likewise emancipated, if the Lord drew blood of him, or,
if the Lord refused to bail him, either in a civil or criminal action
in which he was afterwards cleared by Trial. (Regiam Majestatem, L. 2.
c. 12.) The act of enfranchisement, when not arising by implication
of Law, of which description many of the instances appear to be, was,
in ancient times and before writing was common, accompanied by much
publicity and ceremony. _Qui servum suum liberum facit in Ecclesiâ, vel
Mercato, vel Comitatu, vel Hundredo, coram testibus et palam faciat, et
liberas ei vias et portas conscribit apertas, et lanceam et gladium vel
quæ liberorum arma in manibus ei ponat._ (Anglo-Sax. LL. Ed. Wilkins.)
When writing became common, the method was, by the Lord’s Deed
expressly enfranchising the Villein. Upon the subject of Villenage,
Fortescue’s words are no less remarkable for the truth and beauty of
the sentiment they express, than singular, when it is considered that
they were addressed to a Prince. _Ab homine et pro vitio introducta
est servitus: sed Libertas à Deo hominis est insita naturæ. Quare ipsi
ab homine sublata semper redire gliscit, ut facit omne quod libertate
naturali privatur._ (de laudibus legum Angliæ, c. 42.)]
It should here be remarked, that a man may enfranchise his
Villein-born, so far as the consequences affect the persons of himself,
or his Heirs, but not as they apply to others. Because, if a man born
a Villein, but thus rendered free, should be produced in Court, to
make proof against a stranger, or to wage his Law, he may be justly
precluded, if it be objected against him, and proved in Court, that
he was born in a state of Villenage, although his condition was such
that he had been Knighted subsequently to his being enfranchised.[150]
If a Villein-born peaceably remain during a year and a day[151] in
any privileged Town[152] so that he be received in their community or
Guild[153] as a Citizen, he shall from such circumstance be freed from
Villenage.
[Footnote 150: “Except he received his liberty and was made free with
the Licence, good-will, and special command of the King.” (Reg. Maj. L.
2. c. 12.) Lord Littleton ascribes the rule in the text, to a jealousy
of judicial proceedings. (3 Hist. Hen. 2. p. 192.) It more probably
originated from the chivalric pride of the times. As the great Lords
often personally engaged in the combat, their own importance was
increased by keeping up the dignity of this mode of Trial.]
[Footnote 151: Bracton L. 1. fol. 6. b. 7. a. But even this period
would not operate as a bar to the Lord, if within the year _clameum
suum qualitercunque apposuerit_.—“If he remained quietly” are the words
of the Regiam Majestatem, during a year and a day in a privileged
Town he became free—but out of a privileged town seven years was the
period—but this latter prescription held not good against the King. (L.
2. c. 12.)]
[Footnote 152: _Villa privilegiata._ _Item_, says a Law of the
Conqueror, _si servi permanserint sine calumniâ per annum et diem in
civitatibus nostris vel in burgis in muro vallatis, vel in castris
nostris, à die illâ liberi efficiuntur, et liberi à jugo servitutis
suæ sint in perpetuum._ (LL. Gul. Conq. 66. Ed. Wilkins, p. 229.) “By
_privileged Town_ is meant a Town that had Franchises by prescription
or charter—and this communication of liberty from thence to a Villein
residing among them so short a time, shews the high regard to the Law
of such corporations, and likewise a desire to favor enfranchisement,
as much as the settled rules of property would admit.” (3 Hist. Hen.
2. p. 191. Litt.) This part of our Author’s text is considerably
elucidated by Fleta, L. 4. c. 11. s. 11. and Co. Litt. 137. b.]
[Footnote 153: _Gyldam_, from the Saxon _geldan_ and _gildan_.
_Gildare_ occurs in Domesday frequently _pro solvere, reddere_. (Vide
Spelman Gloss.)]
CHAP. VI.
Villeins-born are such from their Birth. Thus, if both the parents
are Villeins-born, the Offspring is a Villein-born.[154] The same may
be said where the Father is free but the Mother a Villein-born. If,
however, the Mother be free, and the Father a Villein-born, the same
rule prevails, as far as the purity of Condition be in question.
[Footnote 154: “Those are Villeins who are begot of Villeins and Niefs
in servitude, whether born in matrimony or out of matrimony; those also
are Villeins who are begotten of Villeins and born of free-women in
matrimony, and those are Villeins who are begotten of a freeman and a
Nief and born out of matrimony.” (Mirror, c. 2. s. 28. See also Bracton
fols. 4. 5. and Fleta L. 1. c. 3.)]
If a freeman take to wife a woman born in Villenage, whilst he so
continues bound to the state of Villenage, he shall as a consequence
lose his Law, as if he himself were a Villein-born.[155] If there
be any children resulting from the connection of a Woman born in
Villenage belonging to one person, and a Man born in that state
belonging to another, the children shall be proportionably divided
between the two Lords.[156]
[Footnote 155: From the extreme brevity and quaintness of the original,
it is a matter of some doubt, what the true meaning of the passage
is. Lord Littleton gives the passage thus. “We are told by Glanville,
that in his time, if a freeman married a woman born in Villenage _and
who actually lived in that state_, he lost thereby the benefit of the
Law (that is all the legal rights of a freeman,) and was considered
as a Villein by birth, during the lifetime of his wife, on account
of her Villenage.” This, however, is at best but a loose paraphrase
of Glanville. His Lordship was aware of it, and to confirm his
representation of what is said, as he terms it, so _indistinctly_ by
Glanville, he refers to Bracton, fol. 5. Mr. Reeves makes this severe
penalty upon the Husband to arise, not from the wife _living_ in a
state of Villenage, but her _holding property in Villenage_. The fact
is, the text expresses neither Lord Littleton’s Explanation, nor that
given by Mr. Reeves. I do not flatter myself to have succeeded better.
In Britton’s time, the wife was enfranchised during the coverture.
(78. b.) Vide Co. Litt. 123. a. and 137. b. and Mr. Hargrave’s notes
thereon.]
[Footnote 156: “This,” exclaims Lord Littleton, “was absolutely putting
children upon the same foot as cattle, or other stock on a farm,
without the regard that is due to the inherent freedom and dignity of
human nature.” (3 Hist. Hen. 2. p. 191.)]