not leave their lord without his permission; but if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demesnes, and any other the meanest offices P: and their services were not only base, but uncertain both as to their time and quantity 9. A villein, in short, was in much the same state with us, as lord Molesworthr describes to be that of the boors in Denmark, and which Stiernhooks attributes also to the traals or slaves in Sweden; which confirms the probability of their being in some degree monuments of the Danish tyranny. A villein could acquire no property either in lands or goods: but, if he purchased either, the lord might enter upon them, oust the villein, and seise them to his own use, unless he contrived to dispose of them again before the lord had seised them; for the lord had then lost his opportunity t. In many places also a fine was payable to the lord, if the villein presumed to marry his daughter to any one without leave from the lord": and, by the common law, the lord might also bring an action against the husband for damages in thus purloining his property w. For the children of vil p Litt. sec. 172. q Ille qui tenet in villenagio faciet quicquid ei praeceptum fuerit, nec scire debet sero quid facere debet in crastino, et semper tene bitur ad incerta. (Bracton, 1. 4. tr. 1. c. 28.) (3) r c. 8. s de jure Sueonum. 1. 2. c. 4. (3) This is an eloquent description of slavery. Villeins were not protected by magna charta; nullus liber homo capiatur vel imprisonetur, &c. was cautiously expressed to exclude the poor villein; for as lord Coke tells us, the lord may beat his villein, and if it be without cause, he cannot have any remedy. What a degraded condition for a being endued with reason! leins were also in the same state of bondage with their parents; whence they were called in Latin, nativi, which gave [94] rise to the female appellation of a villein, who was called a neife. In case of a marriage between a freeman and a neife, or a villein and a freewoman, the issue followed the condition of the father, being free if he was free, and villein if he was villein; contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because by another maxim of our law he is nullius filius: and as he can gain nothing by inheritance, it were hard that he should lose his natural freedom by ity. The law however protected the persons of villeins, as the king's subjects, against atrocious injuries of the lord: for he might not kill, or maim his villein; though he might beat him with impunity, since the villein had no action or remedy at law against his lord, but in case of the murder of his ancestor, or the maim of his own person. Neifes indeed had also an appeal of rape, in case the lord violated them by force. VILLEINS might be enfranchised by manumission, which is either express or implied: express; as where a man granted to the villein a deed of manumission: implied; as where a man bound himself in a bond to his villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee, for life or years; for this was dealing with his villein on the footing of a freeman, it was in some of the instances giving him an action against his lord, and in others vesting in him an ownership entirely inconsistent with his former state of bondage. So also if the lord brought an action against his villein, this enfranchised himd; for, as the lord might have a short remedy against his villein, by seising his goods, (which was more than equivalent to any damages he could recover,) the law, which is always ready to catch at any thing in favor of liberty, presumed that by bringing x Litt. sec. 187. y Ibid. sec. 187, 188. z Ibid. sec. 189. 194. a Ibid. sec. 190 b Ibid. sec. 204. e Sec. 204, 5, 6. d Sec. 208. this action he meant to set his villein on the same footing with himself, and therefore held it an implied manumission. But, in case the lord indicted him for felony, it was [95] otherwise; for the lord could not inflict a capital punish ment on his villein, without calling in the assistance of the law. VILLEINS, by these and many other means, in process of time gained considerable ground on their lords; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest in many places full as good, in others better than their lords. For the good-nature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, now gave them title to prescribe against their lords; and, on performance of the same services, to hold their lands, in spight of any determination of the lord's will. For, though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the custom of the manor; which customs are preserved and evidenced by the rolls of the several courts baron in which they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And, as such tenants had nothing to shew for their estates but these customs, and admissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court roll, and their tenure itself a copyhold e. THUS Copyhold tenures, as sir Edward Coke observes f, although very meanly descended, yet come of an ancient house; for, from what has been premised, it appears, that copyholders are in truth no other but villeins, who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held abso lutely at the lord's will (4). Which affords a very substantial reason for the great variety of customs that prevail in different manors with regard both to the descent of the estates, and the privileges belonging to the tenants. And these encroachments grew to be so universal, that when tenure in villenage was virtually abolished (though copyholds were reserved) by the statute of Charles II, there was hardly a pure villein left in the nation. For sir Thomas Smith & testifies, that in all his time (and he was secretary to Edward VI.) he never knew any villein in gross throughout the realm; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that "the holy fathers, "monks, and friars, had in their confessions, and especially in "their extreme and deadly sickness, convinced the laity how "dangerous a practice it was, for one christian man to hold ❝another in bondage: so that temporal men by little and little, "by reason of that terror in their consciences, were glad to "manumit all their villeins. But the said holy fathers, with g Commonwealth. b. 3. c. 10. (4) Lord Loughborough is inclined to question this origin of copyholds. "I cannot help doubting (observes that learned Lord) whether "this deduction is not founded in mistake. The circumstance which "first led me to entertain the doubt is, that in those parts of Germany "from whence the Saxons migrated into England, there exists, at this "day, a species of tenure exactly the same with our copyhold estates; "and there exists likewise, at this day, a complete state of villenage; "so that both stand together, and are not one tenure growing out of "another, and by degrees assuming its place, &c. &c. What I have "stated I found in a very accurate treatise of German law by Sel"chow, one of the professors of the university of Gottingen, entitled, "Elementa Juris privati Germanici. This seems sufficient to negative "the idea, that copyholders sprang out of villeins. In England, villenage has ceased, and copyholds remain; but here, as in other countries, "they both prevailed at the same time." Doug. 698 66 "the abbots and priors, did not in like sort by theirs; for "they also had a scruple in conscience to impoverish and "despoil the church so much, as to manumit such as were "bond to their churches, or to the manors which the church "had gotten; and so kept their villeins still (5).” By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders: their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before; though, in general, the villein services are usually commuted for a small pecuniary quit rent h. As a farther consequence of what has been premised, [97] we may collect these two main principles, which are heldi to be the supporters of the copyhold tenure, and without which it cannot exist: 1. That the lands be parcel of, and situate within that manor, under which it is held. 2. That they have been demised, or demisable, by copy of court roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day. In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are styled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only; for the custom of the manor has in both cases so far superseded the will of the lord, that, provided h In some manors the copyholders were bound to perform the most servile offices, as to hedge and ditch the lord's grounds, to lop his trees, and reap his corn, and the like; the lord usually finding them meat and drink, and sometimes (as is still the use in the highlands of Scotland) a minstrel or piper for their diversion. (Rot. Maner. de Edgware Comm. Mid.) As in the kingdom of Whidah, on the slave coast of Africa, the people are bound to cut and carry in the king's corn from off his demesne lands, and are attended by music during all the time of their labor. (Mod. Un. Hist. xvi. 429.) i Co. Litt. 58. (5) The last claim of villenage, which we find recorded in our courts, was in the 15th of Ja. I. Noy, 27. 11 Harg. St. Tr. 342. |