Villainage in England: Essays in English Mediaeval History. Paul Vinogradoff
166, ed. Horwood). There is a case in 1313 when a preliminary skirmish between the counsel on either side took place as to the sufficiency of the defendant's plea in bar, the plaintiff contending that it was not precise enough. Here, if any where, we should expect the term 'regardant,' but it is not forthcoming46. What is more, and what ought to have prevented any mistake, the official records of trials on the Plea Rolls up to Edward II always use the plain assertion, 'villanus … et tenet in villenagio47.' The practice of naming the manor to which a villain belonged begins however to come in during the reign of Edward II, and the terminology is by no means settled at the outset; expressions are often used as equivalent to 'regardant' which could hardly have misled later antiquaries as to the meaning of the qualification48. In a case of 1322, for instance, we have 'within the manor' where we should expect to find 'regardant to the manor49.' This would be very nearly equivalent to the Latin formula adopted by the Plea Rolls, which is simply ut de manerio50. Every now and then cases occur which gradually settle the terminology, because the weight of legal argumentation in them is made to turn on the fact that a particular person was connected with a particular manor and not with another. A case from 1317 is well in point. B.P. the defendant excepts against the plaintiff T.A. on the ground of villainage (qil est nostre vileyn, and nothing else). The plaintiff replies that he was enfranchised by being suffered to plead in an assize of mort d'ancestor against B.P.'s grandmother. By this the defendant's counsel is driven to maintain that his client's right against T.A. descended not from his grandmother but from his grandfather, who was seised of the manor of H. to which T.A. belonged as a villain51. The connexion with the manor is adduced to show from what quarter the right to the villain had descended, and, of course, implies nothing as to any peculiarity of this villain's status, or as to the kind of title, the mode of acquiring rights, upon which the lord relies—it was ground common to both parties that if the lord had any rights at all he acquired them by inheritance.
Prior of the Hospitalers v. Thomas Barentyn and Ralph Crips.
Another case seems even more interesting. It dates from 1355, that is from a time when the usual terminology had already become fixed. It arose under that celebrated Statute of Labourers which played such a prominent part in the social history of the fourteenth century. One of the difficulties in working the statute came from the fact that it had to recognise two different sets of relations between the employer and the workman. The statute dealt with the contract between master and servant, but it did not do away with the dependence of the villain on the lord, and in case of conflict it gave precedence to this latter claim; a lord had the right to withdraw his villain from a stranger's service. Such cross influences could not but occasion a great deal of confusion, and our case gives a good instance of it. Thomas Barentyn has reclaimed Ralph Crips from the service of the Prior of the Hospitalers, and the employer sues in consequence both his former servant and Barentyn. This last answers, that the servant in question is his villain regardant to the manor of C. The plaintiff's counsel maintains that he could not have been regardant to the manor, as he was going about at large at his free will and as a free man; for this reason A. the former owner of the manor was never seised of him, and not being seised could not transfer the seisin to the present owner, although he transferred the manor. For the defendant it is pleaded, that going about freely is no enfranchisement, that by the gift of the manor every right connected with the manor was also conferred and that consequently the new lord could at any moment lay hands on his man, as the former lord could have done in his time. Ultimately the plaintiff offers to join issue on the question, whether the servant had been a villain regardant to the manor of C. or not. The defendant asserts, rather late in the day, that even if the person in question was not a villain regardant to the manor of C. the mere fact of his being a villain in gross would entitle his lord to call him away. This attempt to start on a new line is not allowed by the Court because the claim had originally been traversed on the ground of the connexion with the manor52.
The peculiarity of the case is that a third person has an interest to prove that the man claimed as villain had been as a free man. Usually there were but two parties in the contest about status; the lord pulling one way and the person claimed pulling the other way, but, through the influence of the Statute of Labourers, in our case lord and labourer were at one against a third party, the labourer's employer. The acknowledgment of villainage by the servant did not settle the question, because, though binding for the future, it was not sufficient to show that villainage had existed in the past, that is at the time when the contract of hire and service was broken through the interference of the lord. Everything depended on the settlement of one question—was the lord seised at the time, or not? Both parties agree that the lord was not actually seised of the person, both agree that he was seised of the manor, and both suppose that if the person had as a matter of fact been attached to the manor it would have amounted to a seisin of the person. And so the contention is shifted to this point: can a man be claimed through the medium of a manor, if he has not been actually living, working and serving in it? The court assumes the possibility, and so the parties appeal to the country to decide whether in point of fact Ralph Crips the shepherd had been in legal if not in actual connexion with the manor, i.e. could be traced to it personally or through his relatives.
Results as to 'villain regardant' and 'villain in gross.'
The case is interesting in many ways. It shows that the same man could be according to the point of view considered both as a villain in regard to a manor, and as a villain in gross. The relative character of the classification is thus illustrated as well as its importance for practical purposes. The transmission of a manor is taken to include the persons engaged in the cultivation of its soil, and even those whose ancestors have been engaged in such cultivation, and who have no special plea for severing the connexion.
As to the outcome of the whole inquiry, we may, it seems to me, safely establish the following points: 1. The terms 'regardant' and 'in gross' have nothing to do with a legal distinction of status. 2. They come up in connexion with the modes of proof and pleading during the fourteenth century. 3. They may apply to the same person from different points of view. 4. 'Villain in gross' means a villain without further qualification; 'villain regardant to a manor' means villain by reference to a manor. 5. The connexion with a manor, though only a matter of fact and not binding the lord in any way, might yet be legally serviceable to him, as a means of establishing and proving his rights over the person he claimed.
The astrier.
I need hardly mention, after what has been said, that there is no such thing as this distinction in the thirteenth century law books. I must not omit, however, to refer to one expression which may be taken to stand in the place of the later 'villain regardant to a manor.' Britton (ii. 55) gives the formula of the special plea of villainage to the assize of mort d'ancestor in the following words: 'Ou il poie dire qe il est soen vileyn et soen astrier et demourrant en son villenage.' There can be no doubt that residence on the lord's land is meant, and the term astrier leads even further, it implies residence at a particular hearth or in a particular house. Fleta gives the assize of novel disseisin to those who have been a long time away from their villain hearth53 ('extra astrum suum villanum,' p. 217). If the term 'astrier' were restricted to villains it would have proved a great deal more than the 'villain regardant' usually relied upon. But it is of very wide application. Britton uses it of free men entitled to rights of common by reason of tenements they hold in a township (i. 392). Bracton speaks of the case of a nephew coming into an inheritance in preference to the uncle because he had been living at the same hearth or in the same hall (in atrio or astro) with the former owner54, and in such or a similar sense the word appears to have been usually employed by lawyers55. On the other hand, if we look in Bracton's treatise for parallel passages to those quoted from the Fleta and Britton about the villain astrier, we find only a reference to the fact that the person in question was a serf and holding in villainage
Y.B. Hil. 5 Edw. II: 'Iohan de Rose port son [ne] vexes vers Labbe de Seint Bennet de Holme, et il counta qil luy travaille, etc., e luy demande.'
I do not think it ever came into any one's mind to look at the Plea Rolls in this matter. Even Hargrave, when preparing his famous argument in Somersett's case, carried his search no further than the Year Books then in print. And in consequence he just missed the true solution. He says (Howell's State Trials, xx. 42, 43),'As to the villeins in gross the cases relative to them are very few; and I am inclined to think that there never was any great number of them in England.... However, after a long search, I do find places in the Year Books where the form of alledging villenage in gross is expressed, not in full terms, but in a general way; and in all the cases I have yet seen, the villenage is alledged in the ancestors of the person against whom it was pleaded.' And he quotes 1 Edw. II, 4; 5 Edw. II, 157 (corr. for 15); 7 Edw. II, 242, and 11 Edw. II, 344. But all these cases are of Edward II's time, and instead of being exceptional give the normal form of pleading as it was used up to the second quarter of the fourteenth century. They looked exceptional to Hargrave only because he restricted his search to the later Year Books, and did not take up the Plea Rolls. By admitting the cases quoted to indicate villainage in gross, he in fact admitted that there were only villains in gross before 1350 or thereabouts, or rather that all villains were alike before this time, and no such thing as the difference between
Y.B. 32/33 Edw. I (Horwood), p. 57: 'Quant un home est seisi de son vilein, issi qil est reseant dans son vilenage.' Fitzherbert, Abr. Vill. 3 (39 Edw. III): '… villeins sunt appendant as maners qe sount auncien demesne.' On the other hand, 'regardant' is used quite independently of villainage. Y.B. 12/13 Edw. III (Pike), p. 133: 'come services regardaunts al manoir de H.'
Y.B. Hil. 14 Edw. II, f. 417: 'R. est bailli … del manoir de Clifton … deins quel manoir cesti J. est villein.'
Y.B. Trin. 9 Edw. II, f. 294: 'Le manoir de H. fuit en ascun temps en la seisine Hubert nostre ael, a quel manoir cest vileyn est regardant.'
Y.B. Trin. 29 Edw. III, f. 41. For the report of this case and the corresponding entry in the Common Pleas Roll, see Appendix II.
Cf. Annals of Dunstaple, Ann. Mon. iii. 371: 'Quia astrarius eius fuit,' in the sense of a person living on one's land.
Bracton, f. 267, b.
Bract. Note-book, pl. 230, 951, 988. Cf. Spelman, Gloss. v. astrarius. Kentish Custumal, Statutes of the Realm, i. 224. Fleta has it once in the sense of the Anglo-Saxon heorð-fæst, i. cap. 47, § 10 (f. 62).