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.

From this power of the lord as to his villein’s property, it appears 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.