.
is a curious explanatory gloss, in a Cambridge MS. of Bracton, which seems to go back at least to the beginning of the fourteenth century, and it maintains that free stock doing villain service lapses into villainage in the fifth generation only69. On the other hand, Britton flatly denies the possibility of such a thing; according to him no length of time can render free men villains or make villains free men. Moreover he gives a supposed case (possibly based on an actual trial), in which a person claimed as a villain is made to go back to the sixth generation to establish his freedom.70 It does not seem likely that people could often vindicate their freedom by such elaborate argument, but the legal assumption expounded in Britton deserves full attention. It is only a consequence of the general view, that neither the holding nor the services ought to have any influence on the status of a man, and in so far it seems legally correct. But it is easy to see how difficult it must have been to keep up these nice distinctions in practice, how difficult for those who for generations had been placed in the same material position with serfs to maintain personal freedom.71 For both views, though absolutely opposed to each other, are in a sense equally true: the one giving the logical development of a fundamental rule of the law, the other testifying to the facts. And so we have one more general observation to make as to the legal aspect of villainage. Even in the definition of its fundamental principles we see notable discrepancies and vacillations, which are the result of the conflict between logical requirements and fluctuating facts.
Criminal law in its relation to villainage.
The original unity of purpose and firmness of distinction are even more broken up when we look at the criminal and the police law where they touch villainage. In the criminal law of the feudal epoch there is hardly any distinction between free men and villains. In point of amercements there is the well-known difference as to the 'contenement' of a free landholder, a merchant and a villain, but this difference is prompted not by privilege but by the diversity of occupations. The Dialogus de Scaccario shows that villains being reputed English are in a lower position than free men as regards the presumption of Englishry and the payment of the murder-fine,72 but this feature seems to have become obliterated in the thirteenth century. In some cases corporal punishment may have differed according to the rank of the culprit, and the formalities of ordeal were certainly different73. The main fact remains, that both villains and free men were alike able to prosecute anybody by way of 'appeal'74 for injury to their life, honour, and even property75, and equally liable to be punished and prosecuted for offences of any kind. Their equal right was completely recognized by the criminal law, and as a natural sequence of this, the pleas of the crown generally omit to take any notice of the status of parties connected with them. One may read through Mr. Maitland's collection of Pleas of the Crown edited for the Selden Society, or through his book of Gloucestershire pleas, without coming across any but exceptional and quite accidental mentions of villainage. In fact were we to form our view of the condition of England exclusively on the material afforded by such documents, we might well believe that the whole class was all but an extinct one. One glance at Assize Rolls or at Cartularies would teach us better. Still the silence of the Corona Rolls is most eloquent. It shows convincingly that the distinction hardly influenced criminal law at all.
Police in relation to villainage.
It is curious that, as regards police, villains are grouped under an institution which, even by its name, according to the then accepted etymology, was essentially a free institution. The system of frank pledge (plegium liberale), which should have included every one 'worthy of his were and his wite,' is, as a matter of fact, a system which all through the feudal period is chiefly composed of villains76. Free men possessed of land are not obliged to join the tithing because they are amenable to law which has a direct hold on their land77, and so the great mass of free men appear to be outside these arrangements, for the police representation of the free, or, putting it the other way, feudal serfs actually seem to represent the bulk of free society. The thirteenth-century arrangements do not afford a clue to such paradoxes, and one has to look for explanation to the history of the classes.
The frankpledge system is a most conspicuous link between both sections of society in this way also, that it directly connects the subjugated population with the hundred court, which is the starting-point of free judicial organisation. Twice a year the whole of this population, with very few exceptions, has to meet in the hundred in order to verify the working of the tithings. Besides this, the class of villains must appear by representatives in the ordinary tribunals of the hundred and the shire: the reeve and the four men, mostly unfree men78, with their important duties in the administration of justice, serve as a counterpoise to the exclusive employment of 'liberi et legales homines' on juries.
Civil disability of a villain as to his lord.
And now I come to the most intricate and important part of the subject—to the civil rights and disabilities of the villain. After what has been said of the villain in other respects, one may be prepared to find that his disabilities were by no means so complete as the strict operation of general rules would have required. The villain was able in many cases to do valid civil acts, to acquire property and to defend it in his own name. It is true that, both in theory and in practice, it was held that whatever was acquired by the bondman was acquired by the lord. The bondman could not buy anything but with his lord's money, as he had no money or chattels of his own79. But the working of these rules was limited by the medieval doctrine of possession. Land or goods acquired by the serf do not eo ipso lapse into his lord's possession, but only if the latter has taken them into his hand80. If the lord has not done so for any reason, for want of time, or carelessness, or because he did not choose to do so, the bondman is as good as the owner in respect of third persons. He can give away81 or otherwise alienate land or chattels, he has the assize of novel disseisin to defend the land, and leaves the assize of mort d'ancestor to his heirs. In this case it would be no good plea to object that the plaintiff is a villain. In fact this objection can be raised by a third person only with the addition that, as villain, the plaintiff does not hold in his own name, but in the name of his lord82. A third person cannot except against a plaintiff merely on the ground of his personal status. As to third persons, a villain is said to be free and capable to sue all actions83. This of course does not mean that he has any action for recovering or defending his possession of the tenements which he holds in villainage, but this disability is no consequence of his servile blood, for he shares it with the free man who holds in villainage; it is a consequence of the doctrine that the possession of the tenant in villainage is in law the possession of him who has the freehold. It may be convenient for a villain as defendant to shelter himself behind the authority of his lord84, and it was difficult to prevent him from doing so, although some attempts were made by the courts even in this case to distinguish whether a person had been in possession as a dependant or not. But there was absolutely nothing to prevent a villain from acting in every respect like a free man if he was so minded and was not interrupted by his lord. There was no need of any accessory action to make his acts complete and legal85. Again we come to an anomaly: the slave is free against everybody but his lord.
Convention with the lord.
Even against his lord the bondman had some standing ground for a civil action. It has rightly been maintained, that he could implead his master in consequence of an agreement with him. The assertion is not quite easy to prove however, and has been put forward too sweepingly86. At first sight
Cambridge Univ., Dd. vij. 6, f. 231: 'Nota de tempore quo servus dicere poterit quia fecerit consuetudines villanas racione tenementi non racione persone. Et sciendum, quod quamdiu servus poterit verificare stipitem suam liberam non dicitur nativus, set quam citius dominus dicere poterit villicus noster est ex auo et tritauo, tunc primo desinit gaudere replicacione omnimoda et privilegio libertatis racione stipitis, ut si A. primo ingressus villenagium tenuerit de F. per villana servitia, deinde B. filius A., deinde C. filius B., deinde D. filius C., et sic tenuerint in villenagium de gradu in gradum usque ad quartum gradum de F. et heredibus suis, ille uillanus inuentus in quinto gradu descendente natiuus dicitur.' I am indebted for this passage to the kindness of Prof. Maitland.
Britton, i. 196, 206.
Hale, Pleas of the Crown (ed. 1736), ii. 298, gives an interesting record from Edward I's reign, which shows that even the general theory was doubtful.
Dial. de Scacc. i. 10. p. 193: 'Ea propter pene quicumque sic hodie occisus reperitur, ut murdrum punitur, exceptis his quibus certa sunt ut diximus servilis condicionis indicia.' On the other hand the Dialogus lays stress on the fact, that if a villain's chattels get confiscated they go to the king and not to the lord (ii. 10. p. 222), but this is regarded as a breach of a general principle.
Glanville, xiv. 1: 'Per ferrum callidum si fuerit homo liber, per aquam si fuerit rusticus.'
Lighter offences committed by the lord could not give rise to prosecution, but the
The lord had power over their property, but against everybody else they were protected by the criminal law.
Sometimes the system is used so as to enforce servitude. See Court Rolls of Ramsey Abbey. Augmentation Court Rolls, Edw. I, Portf. 34, No. 46, m. 1 d. (Aylington): 'Adhuc dicunt quod Johannes filius Ricardi Dunning est tannator et manet apud Heyham, set dat per annum pro recognicione duos capones. Et quia potens est et habet multa bona, preceptum fuit Hugoni Achard et eius decennae ad ultimum visum ad habendum ipsum ad istam curiam, et non habuit. Ideo ipse et decenna sua in misericordia.' (This case is now being printed in Selden Soc. vol. ii. p. 64.)
Bracton, 124 b: 'Quia omnis homo siue liber siue seruus, aut est aut debet esse in franco plegio aut de alicuius manupastu, nisi sit aliquis itinerans de loco in locum, qui non plus se teneat ad unum quam ad alium, vel quid habeat quod sufficiat pro franco plegio, sicut dignitatem vel ordinem vel liberum tenementum, vel in civitatem rem immobilem.' Nichols, Britton, i. 181, gives a note from Cambr. MS. Dd. vii. 6, to the effect that 'Villeins and naifs ought not to be in tithings, secundum quosdam.' This is certainly a misunderstanding, but it can hardly be accounted for either by the enfranchisement of the peasant or the decay of the frank-pledge. I think the annotator may have seen the passages in Leg. Cnuti or Leg. Henrici I, which speak about free men joining the tithings, or speculated about the meaning of 'plegium liberale.' There could be no thought of excluding the villains in practice during the feudal period. As to the allusion in the Mirror of Justices, I shall refer to it in Appendix III.
Bract. Note-book, pl. 1256: 'Et Ricardus dicit quod assisa non debet inde fieri quia predictus Iohannes dedit terram illam cuidam uillano ipsius Ricardi, et ipse uillanus reddidit terram illam domino suo sicut emptam catallis domini sui, et quod ita ingressum habuit per uillanum illum in terram illam ponit se super iuratam.' Liber Assisarum, ann. 41. pl. 4. f. 252, shows that the statute
Bracton, f. 25: 'Si … stipulatus sit servus sibi ipsi, et non domino, id non statim acquiritur domino, quamuis illud (corr. ille) sit sub voluntate et potestate sua, antequam dominus apprehensus fuerit possessionem. Quod quidem impune facere poterit, si voluerit, propter exceptionem,' etc. Fitz. Abr. Vill. pl. 22 (Pasch. 35 Edw. III): 'Si le villen le roy purchase biens ou chatteux le properte de eux est en le roy sauns seisier. Mes auter est de auter home, etc. Mes sil purchas terre le roy doit seisier, etc. car
Bracton, f. 25 b: 'Sic constat, quod qui sub potestate alterius fuerit, dare poterit. Sed qualiter hoc cum ipse, qui ab aliis possidetur, nihil possidere possit? Ergo videtur quod nihil dare possit, quia non potest quis dare quod non habet, et nisi fuerit in possessione rei dandae. Respondeo, dare potest qui seisinam habet qualemcunque, et servus dare potest,' etc. In case of an execution for debt due to the king the goods of the villain were to be taken only when the lord's goods were exhausted. Dialog. de Scacc. ii. 14. p. 229.
Bracton, f. 190: 'Et non competit alicui hujusmodi exceptio de villenagio, praeterquam vero domino, nisi utrumque probet, scilicet quod villanus sit et teneat in villenagio, cum per hoc sequatur, quod ad ipsum non pertineat querela sive assisa, sed ad verum dominum, et ideo cadit assisa quantum ad personam suam et non quantum ad personam domini.' Cf. Britton, i. 325.
Britton, i. 199; Littleton, 189; Bract. Note-book, pl. 1025: 'Assisa venit recognitura utrum una uirgata terre cum pertinenciis in R. sit libera elemosina pertinens ad ecclesiam Magistri Iohannis de R. de R. an laicum feodum Gaufridi Beieudehe. Qui venit et dicit quod non debet inde assisa fieri quia antecessores sui
Example, Fitz. Abr. Villen. 16. The proper reply to such a plea is shown by Bract. Note-book, pl. 1833: 'Et Iohannes dicit quod hoc ei nocere non debet, quia quicquid idem dicat de uillenagio, ipsemet ut liber homo sine contradiccione domini sui terram illam dedit Iohanni del Frid patri istius Iohannis pro homagio et seruicio suo … Consideratum est quod predictus Iohannes recuperauit seisinam suam, et Richerus in misericordia.' Liber Assis. ann. 43. pl. 1. f. 265 gives the contrary decision: 'Lassise agarde et prise, per quel il fuit troue quil [le defendant] fuit villein al Counte.... mes troue fuit ouster que le Counte ne fut unques seisie de la terre, ne onques claima riens en la terre, et troue fuit que le plaintif fuit seisie et disseisie. Et sur ceo, le quel le plaintif recouerer, ou que le brief abateroit sont ajornes deuant eux mesmes a Westminster. A que jour per opinion de la Court le briefe abatu, per que le plaintif fuit non sue,' etc.
A different view is taken by Stubbs, i. 484.
Digby, Real Property, 3rd ed. p. 128. I may say at once that I fail to see any connexion between copyhold tenure and any express agreements between lord and villain.