der the crown, granted out frequently smaller manors to inferior perfons to be holden of themselves; which do therefore now continue to be held under a fuperior lord, who is called in such cases the lord paramount over all these manors: and his feignory is frequently termed an honour, not a manor, especially if it hath belonged to an antient feodal baron, or hath been at any time in the hands of the crown. In imitation whereof, thefe inferior lords began to carve out and grant to others still more minute eftates, to be held as of themselves, and were fo proceeding downwards in infinitum; till the fuperior lords obferved, that by this method of fubinfeudation they lost all their feodal profits of wardfhips, marriages, and efcheats, which fell into the hands of these mefne or middle lords, who were the immediate fuperiors of the terre-tenant, or him who occupied the land: and alfo that the mefne lords themselves were fo impoverished thereby, that they were dif abled from performing their fervices to their own fuperiors. This occafioned, first, that provifion in the thirty-fecond chapter of magna carta, 9 Hen. III. (which is not to be found in the first charter granted by that prince, nor in the great charter of king John ') that no man fhould either give or fell his land, without referving fufficient to answer the demand of his lord; and, afterwards the ftatute of Weftm. 3. or quia emptores, 18 Edw. I. c. 1. which directs, that, upon all fales or feoffments of land, the feoffee fhall hold the fame, not of his immediate feoffor, but of the chief lord of the fee, of whom fuch feoffor himself held it. But thefe provisions, not extending to the king's own tenants in capite, the like law concerning them is declared by the ftatutes of preroga tiva regis, 17 Edw. II. c. 6. and of 34 Edw. III. c. 15. by which last all fubinfeudations, previous to the reign of king Edward I, were confirmed; but all subsequent to that period [92] were left open to the king's prerogative. And from hence it is clear, that all manors exifting at this day, must have existed as early as king Edward the firft: for it is effential to a manor, that there be tenants who hold of the lord; and, by the operation of these statutes, no tenant in capite fince the I See the Oxford editions of the charters. 10 acceffion [ 93 ] acceffion of that prince, and no tenant of a common lord fince the statute of quia emptores, could create any new tenants to hold of himself. Now with regard to the folk-land, or eftates held in vilTenage, this was a fpecies of tenure neither ftrictly feodal, Norman, or Saxon; but mixed and compounded of them all*: and which also, on account of the heriots that usually attend it, may seem to have fomewhat Danifh in it's compofition Under the Saxon government there were, as fir William Temple speaks1, a fort of people in a condition of downright fervitude, used and employed in the most fervile works, and belonging, both they, their children, and effects, to the lord of the foil, like the rest of the cattle or stock upon it. Thefe feem to have been those who held what was called the folkJand, from which they were removable at the lord's pleasure. On the arrival of the Normans here, it feems not improbable, that they, who were ftrangers to any other than a feodal ftate, might give fome fparks of enfranchisement to such wretched perfons as fell to their fhare, by admitting them, as well as others, to the oath of fealty; which conferred a right of protection, and raised the tenant to a kind of estate superior to downright flavery, but inferior to every other condition". This they called villenage, and the tenants villeins, either from the word vilis, or else, as fir Edward Coke tells us", a villa; because they lived chiefly in villages, and were employed in rustic works of the most fordid kind: resembling the Spartan helotes, to whom alone the culture of the lands was configned; their rugged mafters, like our northern ancestors, esteeming war the only honourable employment of mankind. THESE villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land: or else they were in grofs, or at large, that is, annexed to the perfon of the lord, and transferrable by deed from one owner to another. They could not leave their k Wright. 215. 1 Introd. Hift. Engl. 59% m Wright. 217. n 1 Inft. 116. • Litt. § 181. ford, lord without his permiffion; but if they ran away, or were purloined from him, might be claimed and recovered by action, like beafts or other chattels. They held indeed small portions of land by way of fuftaining themselves and families; but it was at the mere will of the lord, who might difpoffefs them whenever he pleased; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demefnes, and any other the meaneft offices: and their services were not only base, but uncertain both as to their time and quantity. A villein, in fhort, was in much the same state with us, as lord Molefworth' defcribes to be that of the boors in Denmark, and which Stiernhook attributes alfo to the traals or flaves in Sweden; which confirms the probability of their being in fome 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, ouft 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 loft his opportunity'. In many places also a fine was payable to the lord, if the villein prefumed 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. For the children of vil ℗ Ibid. § 172. a Ille qui tenet in villenagio faciet quicquid ei praeceptum fuerit, nec fcire debet fero quid facere debet in craftino, et femper tenebitur ad incerta. (Bracton. 1. 4. tr. 1. c. 28.) (3) c. 8. s de jure Sueonum, l. 2. c. 4. u Co. Litt. 140. (3) This is an eloquent description of flavery. Villeins were not protected by magna charta; nullus liber homo capiatur vel imprifonetur, &c. was cautiously expreffed 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! BOOK II. leins were alfo in the fame state of bondage with their pa rents; whence they were called in Latin, nativi, which gave [94] rife to the female appellation of a villein, who was called a neife. In cafe 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 fequitur ventrem. But no bastard could be born a villein, becaufe by another maxim of our law he is nullius filius; and as he can gain nothing by inheritance, it were hard that he fhould lose his natural freedom by ity. The law however protected the persons of villeins, as the king's fubjects, against atrocious injuries of the lord: for he might not kill, or maim his villein 2; though he might beat him with impunity, fince the villein had no action or remedy at law against his lord, but in cafe of the murder of his ancestor, or the maim of his own perfon. Neifes indeed had alfo an appeal of rape, in cafe the lord violated them by force 2. VILLEINS might be enfranchised by manumiffion, which is either exprefs or implied: exprefs; as where a man granted to the villein a deed of manumiffion: implied; as where a man bound himself in a bond to his villein for a fum 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 inftances giving him an action against his lord, and in others vefting in him an ownership entirely inconfiftent with his former state of bondage. So alfo if the lord brought an action against his villein, this enfranchised him"; for, as the lord might have a short remedy against his villein, by feifing 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 favour of liberty, prefumed that Litt. § 187. y Ibid. 187, 188. z Ibid. § 189. 194. a Ibid. § 190. b Ibid. § 204. by by bringing this action he meant to fet his villein on the fame footing with himself, and therefore held it an implied manumiflion. But, in cafe the lord indicted him for felony, [95] it was otherwife; for the lord could not inflict a capital punishment on his villein, without calling in the affiftance of the law. VILLLINS, by thefe and many other means, in procefs of time gained confiderable ground on their lords; and in par-. ticular ftrengthened the tenure of their eftates to that degree, that they came to have in them an intereft in many places full as good, in others better than their lords. For the goodnature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children; to enjoy their poffeffions without interruption, in a regulaṛ, courfe of defcent, the common law, of which cuftom is the, life, now gave them title to prefcribe 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 ftill faid to hold their eftates at the will of the lord, yet it is fuch a will as is agreeable to the cuftom of the manor; which customs are preferved and evidenced by the rolls of the feveral courts baron in which they are entered, or kept on foot by the constant immemorial usage of the scveral manors in which the lands lie. And, as fuch tenants had nothing to fhew for their eftates but these customs, and admiffions in purfuance of them, entered on thofe rolls, or the copies of fuch entries witneffed by the fteward, they now began to be called tenant's by copy of court roll, and their tenure itfelf a copyholde. THUS Copyhold tenures, as fir Edward Coke obferves f, although very meanly defcended, yet come of an ancient houfe; for, from what has been premifed, 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 thofe eftates, which f Cop. § 32. e F. N. B. 12. before |