Chapter XI: Front Matter (11)

Thus far, then, they were free, but their servitude consisted in their being liable to taxes, or _tailliages_, at the will of the lords, who, if they were wise, laid on such only as they could well bear; but miserable was their condition when they fell into the hands of one who was needy and rapacious; for, then, they were often fleeced, even to ruin and depopulation. This induced the wiser lords, who saw the consequences, and how much the arbitrary exertion of such powers must, in the end, hurt themselves, to restrain their own powers; and, by degrees, by granting them _charters_, to emancipate them. They formed them into _bodies corporate_, confirmed the right of making _bye-laws_, which had been permitted them, and granted them other privileges, or _franchises_, as they called them, from their being infranchised, in derogation to former regal or seignoral rights. But for their total freedom they were indebted to parliament, which, seeing the bad use king John made of his right in this kind, provided thus in Magna Charta, _Civitas London habeat omnes libertates suas antiquas, & consuetudines suas. Præterea volumus & concedimus, quod omnes aliæ civitates, burgi, & villæ, & barones de quinque portubus, & omnes alii portus, habeant omnes libertates & liberas consuetudines suas._ And another chapter restrains the king from laying new and evil tolls, and confines him to the antient customs[277].

Hitherto, however, the citizens and burgesses were no part of the body politic, and were not represented in parliament. But as, with their security, their wealth and consequence encreased, about, or before the year 1300, they were admitted to that privilege; that they might, in conjunction with the knights of shires, be a check on the overgrown power of the mighty lords; and about that time also the same privilege was allowed to this class of people in the other nations of Europe also. This right was confirmed, and so I may say, the _house of commons_, in its present condition, formed by the statute of the thirty-fourth of Edward the First. _Nullum tallagium vel auxilium, per nos vel heredes nostros, in regno nostro ponatur, seu levetur, sine voluntate & assensu archiepiscoporum, episcoporum, comitum, baronum, militum, burgensium, & aliorum liberorum communium de regno nostro_; where we see, not only the burgesses, but free yeomen also had representatives, namely, by their voting along with the knights of the shires, according to the maxim of that wise prince, _Quæ ad omnes pertinent, ab omnibus debent tractani_[278].

Having come to the constitution of the house of commons as it stands at present, it will not be amiss to look back, and see how far its present form agrees with, or differs from the feudal principles. These principles, we have seen, were principles of liberty; but not of liberty to the whole nation, nor even to the conquerors; I mean, as to the point I am now upon, of having a share in the legislation. That was reserved to the military tenants, and to such of them only as held immediately of the king. And the lowest and poorest of these also, finding it too burthensome to attend these parliaments, or assemblies, that were held so frequently, soon, by disuse, lost their privileges; so that the whole legislature centered in the king, and his rich immediate tenants, of his barony. And it is no wonder the times were tempestuous, when there was no mediator, to balance between two so great contending powers, and were it not that the clergy, who, though sitting as barons, were in some degree a separate body, and had a peculiar interest of their own, performed that office, sometimes, by throwing themselves into the lighter scale, the government must soon have ended either in a despotical monarchy, or tyrannical oligarchy.

Such were the general assemblies abroad in the feudal countries, but such were not strictly the _wittenagemots_ of the Saxons, for their constitution was not exactly feudal. I have observed that the most of their lands were allodial, and very little held by tenure. The reason I take to be this: On their settlement in Britain they extirpated, or drove out, the old inhabitants, and therefore, being in no danger from them, they were under no necessity of forming a constitution compleatly military. But then those allodial proprietors being equally freemen, and equal adventurers with these who had lands given them by tenure, if any in truth had such, they could not be deprived of their old German rights, of sitting in the public assemblies. From the old historians, who call these meetings _infinita multituda_, it appears that they sat in person, not by representation[279].

This constitution, however, vanished with the conquest, when all the lands became feudal, and none but the immediate military tenants were admitted. We find, indeed, in the fourth year of William the First, twelve men summoned from every county, and Sir Matthew Hale will have this to be as effectual a parliament as any in England[280]; but, with deference to so great an authority, I apprehend that these were not members of the legislature, but only assistants to that body. For if they were part thereof, how came they afterwards to be discontinued till Henry the Third’s time, where we first find any account of the commons? The truth seems to be, that they were summoned on a particular occasion, and for a purpose that none but they could answer. On his coronation he had sworn to govern by Edward the Confessor’s laws, which had been some of them reduced into writing, but the greater part were the immemorial custom of the realm; and he having distributed his confiscations, which were almost the whole of England, into his follower’s hands, who were foreigners, and strangers to what these laws and customs were, it was necessary to have them ascertained; and, for this purpose, he summoned these twelve Saxons from every county, to inform him and his lords what the antient laws were. And that they were not legislators, I think appears from this, that when William wanted to revive the Danish laws, which had been abolished by the Confessor, as coming nearer to his own Norman laws, they prevailed against him, not by refusing their consent, but by tears and prayers, and adjurations, by the soul of Edward his benefactor.

Thus William’s laws were no other than the Confessor’s, except that by one new one, he dextrously, by general words, unperceived by the English, because couched in terms of the foreign feudal law, turned all the allodial lands, which had remained unforfeited in the proprietor’s hands, into military tenures. From that time, until the latter end of Henry the Third’s reign, our parliaments bore the exact face of those on the continent in that age; but then, in order to do some justice to the lesser barons, and the lower military tenants, who were entitled by the principles of the constitution to be present, but disabled by indigence to be so in person, they were allowed to appear by representation, as were the boroughs about the same time, or soon after. The persons entitled to vote in these elections for knights of the shire, were, in my apprehension, only the minor barons, and tenants by knight service, for they were the only persons that had been omitted, and had a right before, or perhaps with them, the king’s immediate socage tenants _in capite_.

But certain it is, the law that settled this had soon, with regard to liberty, a great and favourable extension, by which all freemen, whether holding of the king mediately or immediately, by military tenure or otherwise, were admitted equally to vote; and none were excluded from that privilege, except villeins, copy-holders, and tenants in antient demesne. That so great a deviation from the feudal principles of government happened in so short a time, can only be accounted for by conjecture. For records, or history, do not inform us. I shall guess then, that the great barons, who, at the end of Henry the Third’s reign, had been subject to forfeiture, and obliged to submit, and accept of mercy, were duly sensible of the design the king had in introducing this new body of legislators, and sensible that it was aimed against them, could not oppose it. But, however, they attempted, and for some time succeeded to elude the effects of it, by insisting that all freemen, whether they held of the king, or of any other lord, should be equally admitted to the right of the representation.

The king, whose profession was to be a patron of liberty, Edward the First, could not oppose this; and as he was a prince of great wisdom and foresight, I think it is not irrational to suppose, that he might be pleased to see even the vassals of his lords, act in some sort independently of them, and look immediately to the king their lord’s lord. The effect was certainly this, by the power and influence their great fortunes gave them in the country, the majority of the commons were, for a long time, more in the dominion of the lords than of the crown; though, if the king was either a wise or a good prince, they were even then a considerable check upon the too mighty peers.

Every day, and by insensible steps, their house advanced in reputation and privileges and power; but since Henry the Seventh’s time, the progress has been very great. The encrease of commerce gave the commons ability to purchase; the extravagance of the lords gave them an inclination, the laws of that king gave them a power to alienate their intailed estates; insomuch that, as the share of property which the commons have is so disproportionate to that of the king and nobles, and that power is said to follow property, the opinion of many is, that, in our present situation, our government leans too much to the popular side; while others, though they admit it is so in appearance, reflecting what a number of the house of commons are returned by indigent boroughs, who are wholly in the power of a few great men, think the weight of the government is rather oligarchical[281].

LECTURE XXIII.

_The privilege of voting for Knights of the Shire—The business
of the different branches of the Legislature, distinct and
separate—The method of passing laws—The history and form of the
legislature in Ireland._

The house of commons growing daily in consequence, and the socage tenants having got the same privilege of voting for the knights of the shire as the military ones, it naturally followed, that every free person was ambitious of tendering his vote, and thereby of claiming a share in the legislature of his country. The number of persons, many of them indigent, resorting to such elections, introduced many inconveniences, which are taken notice of, and remedied by the statute of the eighth of Henry the sixth chapter the seventh which recites, that of late “elections of knights had been made by very great, outrageous, and excessive numbers of people of which the most part was of people of small substance, and of no value, whereof every one of them pretended a voice equivalent with the most worthy knights and esquires, whereby manslaughter, riots, batteries, and divisions among the gentlemen and other people of the same counties shall very likely rise and be, unless convenient and due remedy be provided in this behalf;” and then it provides that, “no persons should have votes, but such as have lands or tenements to the value of forty shillings a year above all charges.” And so the law stands at this day, though by the change in the value of money, by the spirit of this statute, no person should have a vote that could not dispend ten pounds a year at least. Such a regulation, were it now to be made, would, certainly, be of great advantage both to the representers and represented; but there is little prospect of its ever taking place: And if it should be proposed, it would be looked upon as an innovation, though in truth, it would be only returning to the original principles of the constitution[282].

Our legislature, then, consisting of three distinct parts, the king, lords, and commons, in process of time, each of them grew up to have distinct privileges, as to the beginning particular businesses. Thus all acts of general grace and pardon take their rise from the king; acts relative to the lords and matters of dignity, in that house; and the granting of money in the commons. How the commons came by this exclusive right, as to money matters, is not so easy to determine. Certain it is that, originally, the lords frequently taxed themselves, as did the commons the commonalty, without any communication with each other; but afterwards, when it was judged better to lay on general taxes, that should equally affect the whole nation, these generally took their rise in that house which represented the bulk of the people; and this, by steadiness and perseverance, they have arrogated so far into a right peculiar to themselves, as not to allow the lords a power to change the least title in a money bill. As to laws that relate not to these peculiar privileges, they now take their rise indifferently either in the lords or commons, and when framed into a bill, and approved by both, are presented to the king for his assent; and this has been the practice for these two or three hundred years past[283].

But the ancient method of passing laws was different, and was not only more respectful to, but left more power in the crown. The house which thought a new law expedient, drew up a petition to the king, setting forth the mischief, and praying that it might be redressed by such or such a remedy. When both houses had agreed to the petition, it was entered on the parliament-roll, and presented to the king, who gave such answer as he thought proper, either consenting in the whole, by saying, _let it be as is desired_, or accepting part and refusing or passing by the rest, or refusing the whole by saying, _let the ancient laws be observed_, or in a gentler tone, _the king will deliberate_. And after his answer was entered on the roll, the judges met, and on consideration of the petition and answer, drew up the act, which was sent to be proclaimed in the several counties[284].

Lord Coke very justly observes that these acts drawn up by men, masters of the law, were generally exceedingly well penned, short, and pithy, striking at the root of the grievance, and introducing no new ones; whereas the long and ill penned statutes of later days, drawn up in the houses, have given occasion to multitudes of doubts and suits, and often, in stopping one hole, have opened two. However, notwithstanding this inconvenience, there was good cause for the alteration of method. The judges, if at the devotion of the court, would sometimes, make the most beneficial laws elusory, by inserting a salvo to the prerogative, though there was none in the king’s answer; whereas, by following the present course, the subjects have reduced the king to his bare affirmative or negative, and he has lost that privilege, by the disuse of petitions, of accepting that part which was beneficial to himself, and denying the remainder[285].

I have the rather mentioned this ancient practice of making laws, because it shews how inconsistent with our constitution is that republican notion, which was broached by the enemies of Charles the First, that the king, by his coronation oath, swearing to observe the laws _quas vulgus elegerit_, was obliged to pass all bills presented to him, and had no negative. The meaning, certainly, only extended to his observation of the laws in being. For if the words were to be construed of future propositions, and in the sense that those people would put upon them, the lords also, as well as the king, must be deprived of their power of dissent, and so indeed, it appears, they expounded it; for when the lords offended them, by refusing the trial of the king, they confidently enough with the maxim they had established, turned them out of doors.

But though such as I have mentioned is the constitution of the English parliament, the form of the legislature in this kingdom hath been for above two hundred and sixty years very different, the nature of which, and the causes of its deviation from its model, it is proper every gentleman of this country should be acquainted with. In the infancy of the English government in Ireland, the chief governors were generally chosen by the king out of the lords of the pale, the descendants of the first conquerors, both as they were better acquainted with the interest, and more concerned in the preservation of the colony, and also as, by their great possessions, they were better enabled to support the dignity of the place, whose appointments, the king’s revenue here being inconsiderable, were very low. These governors, however, though men of the greatest abilities, and of equal faithfulness to the crown, were not able to preserve the footing the English had got soon after the conquest; but were every day losing ground to the natives, down to the reign of Edward the Third, which is generally, and, I believe, justly, attributed to the negligence of the English lords, who, by intermarriages, had acquired great estates in Ireland. The power of these lord lieutenants was, in one respect, likewise exorbitant, namely, in giving consent to laws without ever consulting his majesty, a power, perhaps, necessary at first, when the country was in a perpetual state of war, and its interest would not brook delays, but certainly, both for the sake of king and people, not fit to be continued.

It was natural, therefore, for the king, who found himself ill served, to change hands, and to entrust this exorbitant power with persons not estated in the country, and whose attachment he could confide in; and accordingly, from that time, we find natives of England generally appointed to the government, to the great discontent of the Irish lords, who looked upon themselves as injured by the antient practice not being continued. This discontent was farther inflamed by a very extraordinary step, which this otherwise wise and just king was prevailed upon to take, and which first gave rise to that famous distinction between the English by blood, and the English by birth. This king, and his father Edward the Second, had granted great estates, and extensive jurisdictions to many Irish lords of English blood, for services pretended to have been done, many of which, it is probable enough, as the king alledged, were obtained by deceit and false representation; and had he contented himself with proceeding in a legal course, by calling these patents in by _scire facias_, and vacating them upon proof of the deceit, no person could have complained; but he took a very different method, as appears from the writ he thought proper to issue on that occasion. _Quia plures excessivæ donationes terrarum, tenementorum & libertatum, in terra Hiberniæ, ad minus veracem & subdolam suggestionem petentium, tam per Edward II. quam per regem nunc factæ sunt, rex delusorias hujusmodi machinationes volens elidere, de concilio peritarum sibi assistentium, omnes donationes terrarum, tenementorum, & libertatum prædictarum duxit revocandas, quousque de meritis personarum, de causis & conditionibus donationum prædictarum fuerit informatus, & ideo, mandatum est justiciariis regni Hiberniæ, quod omnia terras tenementa & libertates predicta per dictos regis justiciarios aut locum tenentes suos quibuscunque personis facto scisire facias._ This hasty step alienated the English Irish from the king and his advisers, and though, after a contest of eleven years, the king annulled this presumption, the jealousy continued on both sides, and the Irish of English blood, were too ready to follow the banners of any pretender to the crown of England.

In the reign of Henry the Sixth, that weak prince’s ministers, jealous of the influence of Richard duke of York in England, and of his pretensions to the crown, constituted him governor of Ireland; than which they could not have done a thing more fatal to their master’s family, or to the constitution of this kingdom, as it turned out in the sequel; for to induce him to accept it so eager were they to remove him from England, they armed him almost with regal powers. He was made lieutenant for ten years, had all the revenue, without account, besides an annual allowance from England; had power to farm the king’s lands, to place and displace officers, and levy soldiers at his pleasure. The use the duke made of his commission was to strengthen his party, and make Ireland an asylum for such of them as should be oppressed in England; and for this purpose passed an act of parliament, reciting a prescription, that any person, for any cause, coming into the said land, had used to receive succour, tuition, supportation, and free liberty within the said land, during their abiding there, without any grievance, hurt, or molestation of any person, notwithstanding any writ, privy seal, great seal, letters missive under signet, or other commandment of the king, confirming the said prescription, and making it high treason in any person who should bring in such writs, and so forth, to attach or disturb any such person.

This act, together with the duke’s popularity, and the great estate he had in this kingdom, attached the English Irish firmly to his family, insomuch that, in Henry the Seventh’s reign, they crowned the impostor Lambert Simnel, and were afterwards ready to join Perkin Warbeck; and by this act of the duke of York’s they thought to exculpate themselves[286]. But when that king had trodden down all opposition, he took advantage of the precarious situation they were in, not only to have that act repealed, and to deprive his representatives there from passing laws _rege inconsulto_, but also to make such a change in the legislature, as would throw the principal weight into his and his successors’ hands; and this was by the famous law of Poyning’s[287]. By former laws a parliament was to be holden once a year, and the lords and commons, as in England, were the proposers. This act, intended to alter these points, gave occasion to many doubts; and indeed, it seems calculated for the purpose of not disclosing its whole effect at once. Its principal purport, at first view, seeming to be intended to restrain the calling the parliament, except on such occasions as the lord lieutenant and council should see some good causes for it, that should be approved by the king. The words are, that “from the next parliament that shall be holden by the king’s commandment and license, no parliament be holden hereafter in the said land, but at such season as the king’s lieutenant and council there first do certify the king, under the great seal of that land, the causes and considerations; and all such acts as to them seemeth should pass in the same parliament, and such causes, considerations, and acts, affirmed by the king and his council to be good and expedient for that land, and his license thereupon, as well in affirmation of the said causes and acts, as to summon the said parliament under his great seal of England had and obtained; that done, a parliament to be had and holden after the form and effect before rehearsed, and any parliament holden contrary to be deemed void[288].”

The first and great effect of this act was, that it repealed the law for annual parliaments, and made the lord lieutenant and council, or the king who had the naming of them, with his council of England, the proposer to the two houses of the laws to pass, at least of those that should be so devised before the meeting of parliament. But the great doubt was, as there were no express words depriving the lords and commons of their former rights, whether, when the parliament was once met, they had not still the old right of beginning other bills, or whether they were not restrained to the acts so certified and returned. By the preambles of some acts, soon after made, expressing that they were made at the prayer of the commons in the present parliament assembled, one would be inclined to think that the commons, after the assembling the parliament, had proposed these laws. Certain it is, the latter opinion, supported by the ministers of the king and his lawyers, gained ground. For, in the twenty-eighth of Henry the Eight’s reign, an act was made suspending Poyning’s law with respect to all acts already passed, or to be passed in that parliament; the passing of which act was certainly a strong confirmation of what was before doubtful against the house of lords or commons in Ireland, whether they could bring in bills different from those transmitted by the council, since here they both consented to the suspension of the act, to make valid the laws they had passed or should pass in that parliament, without that previous ceremony[289].

But in the reign of Philip and Mary, by which time this opinion, before doubtful (for so it is mentioned in the act then made) was, however, to be maintained, and strengthened, as it added power to the crown. The act we at present live under was made to prevent all doubts in the former, which was certainly framed in words calculated to create such doubts, to be extended in favour of the prerogative. This provides, that as many causes and considerations for acts not forseen before, may happen during the sitting of parliament, the lord lieutenant and council may certify them, and they should pass, if they should be agreed to by the lords and commons. But the great strokes in this new act were two, the first explanatory of part of the former in Henry the Seventh’s reign, that is, that the king and council of England should have power to alter the acts transmitted by the council of Ireland; secondly, the enacting part, that no acts but such as so came over, under the great seal of England, should be enacted; which made it clear, that neither lords or commons in Ireland had a right to frame or propose bills to the crown, but that they must first be framed in the privy council of Ireland, afterwards consented to, or altered by the king, and the same council in England, and then, appearing in the face of bills, be refused or accepted _in toto_ by the lords and commons here[290].

It is true, that both lords and commons have attempted, and gained an approach towards their antient rights of beginning bills, not in that name, but under the name of _Heads of Bills_, to be transmitted by the council; but as the council are the first beginners of acts of parliament, they have assumed a power of modelling these also. The legislature of Ireland is, therefore, very complicated. First, the privy council of Ireland, who, though they may take the hint from the lords or commons, frame the bill, next the king and council of England, who have a power of alteration, and really make it a bill, unalterable, by sending it under the great seal of England; then the two houses of lords and commons, who must agree in the whole, or reject the whole; and, if it passes all these, it is presented to the king for his assent; which indeed is but nominal, as it was before obtained.

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.

LECTURE XXV.

_The methods invented to destroy villenage—The bent of the law
of England towards liberty—Copyhold tenants—Tenants in ancient
demesne._