Villainage in England: Essays in English Mediaeval History. Paul Vinogradoff
type="note">35. Nor could the villain have any help as to the amount and the nature of his services36; the King's Courts will not examine any complaint in this respect, and may sometimes go so far as to explain that it is no business of theirs to interfere between the lord and his man37. In fact any attempt on the part of the dependant to assert civil rights as to his master will be met and defeated by the 'exceptio villenagii38.' The state refuses to regulate the position of this class on the land, and therefore there can be no question about any legal 'ascription' to the soil. Even as to his person, the villain was liable to be punished and put into prison by the lord, if the punishment inflicted did not amount to loss of life or injury to his body39. The extant Plea Rolls and other judicial records are full of allusions to all these rights of the lord and disabilities of the villain, and it must be taken into account that only an infinitely small part of the actual cases can have left any trace in such records, as it was almost hopeless to bring them to the notice of the Royal Courts40.
Identification with Roman slavery.
It is not strange that in view of such disabilities Bracton thought himself entitled to assume equality of condition between the English villain and the Roman slave, and to use the terms servus, villanus, and nativus indiscriminately. The characteristics of slavery are copied by him from Azo's commentary on the Institutes, as material for a description of the English bondmen, and he distinguishes them carefully even from the Roman adscripticii or coloni of base condition. The villains are protected in some measure against their lord in criminal law; they cannot be slain or maimed at pleasure; but such protection is also afforded to slaves in the later law of the Empire, and in fact it is based in Bracton on the text of the Institutes given by Azo, which in its turn is simply a summary of enactments made by Hadrian and Antonine. The minor law books of the thirteenth century follow Bracton in this identification of villainage with slavery. Although this identification could not but exercise a decisive influence on the theory of the subject, it must be borne in mind that it did not originate in a wanton attempt to bring together in the books dissimilar facts from dissimilar ages. On the contrary, it came into the books because practice had paved the way for it. Bracton was enabled to state it because he did not see much difference between the definitions of Azo and the principles of Common Law, as they had been established by his masters Martin of Pateshull and William Raleigh. He was wrong, as will be shown by-and-by, but certainly he had facts to lean upon, and his theory cannot be dismissed on the ground of his having simply copied it from a foreigner's treatise.
Villains in gross and villains regardant.
Most modern writers on the subject have laid stress upon a difference between villains regardant and villains in gross, said to be found in the law books41. It has been taken to denote two degrees of servitude—the predial dependence of a colonus and the personal dependence of a true slave. The villain regardant was (it is said) a villain who laboured under disabilities in relation to his lord only, the villain in gross possessed none of the qualities of a freeman. One sub-division would illustrate the debasement of freemen who had lost their own land, while the other would present the survival of ancient slavery.
In opposition to these notions I cannot help thinking that Hallam was quite right in saying: 'In the condition of these (villains regardant and villains in gross), whatever has been said by some writers, I can find no manner of difference; the distinction was merely technical, and affected only the mode of pleading. The term in gross is appropriated in our legal language to property held absolutely and without reference to any other. Thus it is applied to rights of advowson or of common, when possessed simply, and not as incident to any particular lands. And there can be no doubt that it was used in the same sense for the possession of a villein.' (Middle Ages, iii. 173; cf. note XIV.) Hallam's statement did not carry conviction with it however, and as the question is of considerable importance in itself and its discussion will incidentally help to bring out one of the chief points about villainage, I may be allowed to go into it at some length.
Littleton's view.
Matters would be greatly simplified if the distinction could really be traced through the authorities. In point of fact it turns out to be a late one. We may start from Coke in tracing back its history. His commentary upon Littleton certainly has a passage which shows that he came across opinions implying a difference of status between villains regardant and villains in gross. He speaks of the right of the villain to pursue every kind of action against every person except his lord, and adds: 'there is no diversity herein, whether he be a villain regardant or in gross, although some have said to the contrary42' (Co. Lit. 123 b). Littleton himself treats of the terms in several sections, and it is clear that he never takes them to indicate status or define variation of condition. As has been pointed out by Hallam, he uses them only in connexion with a diversity in title, and a consequent diversity in the mode of pleading. If the lord has a deed or a recorded confession to prove a man's bondage, he may implead him as his villain in gross; if the lord has to rely upon prescription, he has to point out the manor to which the party and his ancestors have been regardant, have belonged, time out of mind43. As it is a question of title and not of condition, Littleton currently uses the mere 'villain' without any qualification, whereas such a qualification could not be dispensed with, if there had been really two different classes of villains. Last but not least, any thought of a diversity of condition is precluded by the fact, that Littleton assumes the transfer from one sub-division to the other to depend entirely on the free will of the lord (sections 175, 181, 182, 185). But still, although even Littleton does not countenance the classification I am now analysing, it seems to me that some of his remarks may have given origin to the prevalent misconception on the subject.
The 'villain regardant' of the Year Books.
Let us take up the Year Books, which, even in their present state, afford such an inestimable source of information for the history of legal conceptions in the fourteenth and fifteenth centuries44. An examination of the reports in the age of the Edwards will show at once that the terms regardant and in gross are used, or rather come into use, in the fourteenth century as definitions of the mode of pleading in particular cases. They are suggested by difference in title, but they do not coincide with it, and any attempt to make them coincide must certainly lead to misapprehension. I mean this—the term 'villain regardant' applied to a man does not imply that the person in question has any status superior to that of the 'villain in gross,' and it does not imply that the lord has acquired a title to him by some particular mode of acquisition, e.g. by prescription as contrasted with grant or confession; it simply implies that for the purpose of the matter then in hand, for the purpose of the case that is then being argued, the lord is asserting and hoping to prove a title to the villain by relying on a title to a manor with which the villain is or has been connected—title it must be remembered is one thing, proof of title is another. As the contrast is based on pleading and not on title, one and the same person may be taken and described in one case as a villain regardant to a manor, and in another as a villain in gross. And now for the proof.
The expression 'regardant' never occurs in the pleadings at all, but 'regardant to a manor' is used often. From Edward III's time it is used quite as a matter of course in the formula of the 'exceptio' or special plea of villainage45. That is, if the defendant pleaded in bar of an action that the plaintiff was his bondman he generally said, I am not bound to answer A, because he is my villain and I am seised of him as of my villain as regardant to my manor of C. Of course there are other cases when the term is employed, but the plea in bar is by far the most common one and may stand for a test. This manner of pleading is only coming gradually into use in the fourteenth century, and we actually see how it is taking shape and spreading. As a rule the Year Books of Edward I's time have not got it. The defendant puts in his plea unqualified. 'He ought not to be answered because he is our villain' (Y.B. 21/22 Edward
Coram Rege, Mich., 3 4 Edw. I, m. 1: 'Ricardus de Assheburnham summonitus fuit ad respondendum Petro de Attebuckhole et Johanni de eadem de placito quare, cum ipsi teneant quasdam terras et tenementa de predicto Ricardo in Hasseburnham ac ipsi parati sunt ad faciendum ei consuetudines et servicia que antecessores sui terras et tenementa illa tenentes facere consueverint, predictus Ricardus diversas commoditates quam ipsi tam in boscis ipsius Ricardi quam in aliis locis habere consueverint eisdem subtrahens ipsos ad intollerabiles servitutes et consuetudines faciendas taliter compellit quod ex sua duricia mendicare coguntur. Et unde queruntur quod, cum teneant tenementa sua per certas consuetudines et certa servicia, et cum percipere consueverunt boscum ad focum et materiam de bosco crescente in propriis terris suis, predictus Ricardus ipsos non permittit aliquid in boscis suis capere et eciam capit aueria sua et non permittit eos terram suam colere.—Ricardus dicit, quod non debet eis ad aliquam accionem respondere nisi questi essent de vita vel membris vel de iniuria facta corpori suo. Dicit eciam quod nativi sui sunt, et quod omnes antecessores sui nativi fuerunt antecessorum suorum et in villenagio suo manentes.'
Note-book of Bracton, pl. 1237: 'dominus Rex non vult se de eis intromittere.'
It occurs in the oldest extant Plea Roll, 6 Ric. I; Rot. Cur. Regis, ed. Palgrave, p. 84: 'Thomas venit et dicit quod ipsa fuit uxorata cuidam Turkillo, qui habuit duos filios qui clamabant libertatem tenementi sui in curia domini Regis … et quod ibi dirationavit eos esse villanos suos, et non defendit disseisinam … Et ipsi Elilda et Ricardus defendunt vilenagium et ponunt se super juratam,' etc.
Maitland, Select Pleas of the Crown (Selden Soc. I), pl. 3: 'Quendam nativum suum quem habuit in vinculis eo quod voluit fugere.' Bract. Notebook, pl. 1041: 'Petrus de Herefordia attachiatus fuit ad respondendum R. fil. Th. quare ipse cepit Ricardum et eum imprisonauit et coegit ad redempcionem 1 marce. Et Petrus venit alias et defendit capcionem et imprisonacionem set dicit quod villanus fuit,' etc.
It must be noted, however, that in such cases it was difficult to draw the line as to the amount of bodily injury allowed by the law, and therefore the King's courts were much more free to interfere. In the trial quoted on p. 45, note 2, the defendants distinguish carefully between the accusation and the civil suit. They plead 'not guilty' as to the former. And so Bishop Stubbs' conjecture as to the 'rusticus verberatus' in Pipe Roll, 31 Henry I, p. 55 (Constit. Hist. i. 487), seems quite appropriate. The case is a very early one, and may testify to the better condition of the peasantry in the first half of the twelfth century.
As to the actual treatment experienced by the peasants at the hands of their feudal masters, see a picturesque case in Maitland's Select Pleas of the Crown (Selden Soc.), 203.
Stubbs, Constitutional History, ii. 652, 654; Freeman, Norman Conquest, v. 477; Digby, Introduction to the Law of Real Property, 244.
Sir Thomas Smith, The Commonwealth of England, ed. 1609, p. 123, shows that the notion of two classes corresponding to the Roman
Section 182 is not quite consistent with such an exposition, but I do not think there can be any doubt as to the general doctrine.
I need not say that the work done by Mr. Horwood, and especially by Mr. Pike, for the Rolls' Series quite fulfil the requirements of students. But in comparison with it the old Year Books in Rastall's, and even more so in Maynard's edition, appear only the more wretchedly misprinted.
For instance, Liber Assisarum, ann. 44, pl. 4 (f. 283): 'Quil fuit son villein et il seisi de luy come de son villein come regardant a son maneir de B. en la Counte de Dorset.'