Slaves and Englishmen. Michael Guasco
as yet.” Worse, he continued, “there be many freman taken as bondmen, and their lands and goodes taken from them so that they shal nat be able to sue for remedy, to prove them selfe fre of blode.” Fortunately, for sixteenth-century bondmen, Tudor monarchs generally sympathized with villeins and several blanket manumissions were issued during the era as the Crown sought to clear the landscape of the remnants of a system of perpetual and inheritable bondage.44
Precisely because of the perception that there was a relationship between villeinage and slavery, aggrieved Englishmen, many of whom found themselves subject to the whims of others because of their tainted bloodlines, were able to find recourse to justice in the Court of Common Requests, a body that was frequently referred to as the “Court of Poor Men’s Cases.” In Netheway v. Gorge (1534) the Court of Requests was confronted with a case that exemplified the plight of bondmen who, according to tradition, had no right to personal property. Sir Edward Gorge, lord of the manor of Walton in Somersetshire, dispatched an agent to purchase an ox from the plaintiff, William Netheway. Gorge’s agent agreed to pay 29s. for the ox, but when Netheway demanded payment the money was withheld. Gorge informed the court that the plaintiff was his bondman and, therefore, the ox was already his property. The court conceded the legitimacy of this claim, but it also recognized that public opinion forbade the enforcement of the dated notions of villeinage. Thus, the royal commissioners pressured the defendant in this case to pay the full value of the disputed ox.45
In other words, although the government was clearly inclined to side with supposed bondmen, based in great part on the increasingly powerful notion of the presumptive freedom of Englishmen, the continuing legitimacy of villeinage under the law allowed for abuses during the Tudor era. In 1535, John Bourchier, who would become the first Earl of Bath a year later, seized goods valued at £400 from a man named Burde. Bourchier made no pretense of purchase in this case; as in the case of Netheway v. Gorge, this was just another example of the legal spoilation of a purported bondman. In response, then, Burde petitioned the Council of the West in 1539, which ordered the restitution of the disputed goods. The first Earl of Bath had died the previous year, but his son took up the fight by not only disregarding the order but also seizing additional items in October 1540. Eventually the plaintiff petitioned King Henry VIII directly and in February 1541 the order to pay for the seized items was endorsed by a writ of Privy Seal from Hampton Court. Still, the earl refused to comply until the threat of a fine prompted him to restore the goods in 1544. Even so, in the less assured political climate following Henry’s death in 1547 and the subsequent downfall of Protector Somerset in 1549, the earl once again seized horses and cattle from Burde. In this last instance, before the records fall silent, the Earl of Bath defended his actions by emphasizing that he and his father had been within their rights all along because the ancestor who had enfranchised Burde’s ancestor had exceeded his legal right—he could actually only liberate for the term of his own life; upon his death, though, the subsequent Earls of Bath could legally reclaim the family’s legacy.46
The Bourchier family was not the first to claim that the manumissions of a previous generation were nonbinding. In the case of Carter v. the Abbot of Malmesbury in 1500, the plaintiff complained to the Court of the Star Chamber that he could not be held against his will because his grandfather had been liberated. The Abbot of Malmesbury, who seized Carter, threw him in prison, and confiscated his substantial holdings in sheep and cattle, defended his actions by claiming that Carter was not free man but a “vylleyne and bondman regardaunt.” Carter, however, produced witnesses to corroborate his claim he had been treated cruelly and that his grandfather had been manumitted. Although the records again fall silent, it seems likely that Carter succeeded in passing the litmus test of descent. Without absolute proof that the ancestors of the person claimed were villeins, no English lord could hold an individual in bondage. Even if servile linkage was established, the maternal line of descent was disallowed and only one male was considered insufficient evidence. At the same time, one free male progenitor typically cleared an entire family of the stain of bondage. In effect, the burden of proving whether an individual was bound or free was increasingly falling in the hands of the lords. The presumption of freedom was clearly ascendant in sixteenth-century England.47
The language used by the Abbot of Malmesbury reveals an important distinction concerning the present condition of bondmen in Tudor England. Legal differentiation among different kinds of bondmen that had existed in the past furthered the widespread notion that there were no slaves in England by the sixteenth century. Most, if not all, slaves had in fact been manumitted, or enserfed, nearly four centuries earlier and few people remained in an actual state of either serfdom or villeinage. Nonetheless, some English writers were careful to specify the precise nature of the bondmen that could be found in Tudor society. Sir Thomas Smith, Queen Elizabeth’s occasional ambassador to France and Secretary of State in the 1570s, produced an entire chapter on the subject in his De Republia Anglorum. Smith declared that, according to Roman tradition, there were two kinds of bondmen, “one which were called servi, [who] were bought for money, taken in warre, left by succession, or purchased by other kinde and lawful acquisition, or else borne of their bonde women and called vernae.” Collectively, Smith noted, these people were known in England as “villeins in gross,” while the others were called “adscripticij glebae, or agri censii. These were not bond to the person, but to the mannor or place, and did followe him who had the manors. Those in our lawe are called villaines [regardants].” For the benefit of his continental audience, Smith claimed that he never encountered any of the first type in the realm, and of the second kind, “so few there be, that it is not almost worth the speaking. But our lawe doth acknowledge them in both those sorts.”48 Smith conceded, then, that slavery existed in England although only in a theoretical sense or as a legal artifact.
Although the distinction between two different legal categories of unfreedom were useful in court cases and commentaries penned for foreign and domestic audiences, English villeins saw little in the subtle distinction between “villeinage in gross” and “villeinage regardant” to soothe their souls. Those at the bottom of the social and economic ladder prided themselves as much as elites on England’s mythical national commitment to liberty and they were not above reminding their countrymen about the anachronistic role of bondage in English society. During the spring and summer of 1549, for example, East Anglia erupted in one of the most sustained popular uprisings in Tudor England. Kett’s Rebellion, as it came to be known, began when Norfolk villagers leveled the hedges of a landlord who had enclosed a portion of the common land. The uprising was sustained, however, by a deeper concern with local issues and the perception that there was a notable absence of “good government” responsive to the needs of all people. To make their grievances clear, the rebels submitted twenty-nine articles, one of which was the brash declaration that “all bonde men … be made ffre for god made all ffre with his precious blode sheddying.”49 Smith may have comforted himself with the notion that human bondage was exceedingly rare, but the Norfolk rebels thought otherwise.
Kett’s Rebellion was not really about slavery, of course, but the inclusion of this one brief statement attests to the scope of popular notions of English freedoms, and human bondage, during the sixteenth century. Like the western shires of Gloucester and Somerset, the East Anglian counties of Norfolk and Suffolk were the main centers of the lingering vestiges of villeinage in Tudor England.50 One of the most important families in the region was the Howards, the dukes of Norfolk. The Howard family fell from power in 1546 when the third duke of Norfolk was attainted, which led to the family’s lands reverting to the Crown. Subsequently, twenty-six heads of families from four Suffolk manors, formerly held by the Howards, petitioned Protector Somerset for manumission. The bondmen complained about how they had been treated by the Duke of Norfolk, who had “spoiled your said oratours of any their landes and tenementes, goddes and cattalles … with such extremitie void of any compassion pietie or reason.” Bondmen were not allowed “to marrye accordyng to the lawes of god ne yet to sette any of their children to schoole or to any kynde of learnyng without exaccions and fines.”51
The grievances of Tudor bondmen ultimately bore fruit. More than forty-six former Howard family villeins would find their way to freedom through a series of manumissions enacted after 1550.52 Aggrieved bondmen were often successful because their interests