VILLENAGE.
(Vol. iii., p. 327.)
Your correspondent H. C. wishes to know whether bondage was a reality in the time of Philip and Mary; and, if so, when it became extinct. It was a reality much later than that, as several cases in the books will show. Dyer, who was appointed chief justice of the Court of Common Pleas in 1559, settled several in which man claimed property in his fellow-man, hearing arguments and giving judgment on the point whether one should be a "villein regardant" or a "villein in gross." Lord Campbell, in his Lives of the Chief Justices, gives the following, tried before Dyer, C.J.:
"A. B., seised in fee of a manor to which a villein was regardant, made a feoffment of one acre of the manor by these words: 'I have given one acre, &c., and further I have given and granted, &c., John S., my villein.' Question, 'Does the villein pass to the grantee as a villein in gross, or as a villein appendant to that acre?' The Court being equally divided in opinion, no judgment seems to have been given."—Dyer, 48 b. pl. 2.
Another action was brought before him under these circumstances:—Butler, Lord of the Manor of Badminton, in the county of Gloucester, contending that Crouch was his villein regardant, entered into certain lands, which Crouch had purchased in Somersetshire, and leased them to Fleyer. Crouch thereupon disseised Fleyer, who brought his action against Crouch, pleading that Butler and his ancestors were seised of Crouch and his ancestors as of villeins regardant, from time whereof the memory of man runneth not to the contrary. The jury found that Butler and his ancestors were seised of Crouch and his ancestors until the first year of the reign of Henry VII.; but, confessing themselves ignorant whether in point of law such seisin be an actual seisin of the defendant, prayed the opinion of the Court thereon. Dyer, C.J., and the other judges agreed upon this to a verdict for the defendant, for "the lord having let an hundred years pass without redeeming the villein or his issue, cannot, after that, claim them." (Dyer, 266. pl. 11.)
When Holt was chief justice of the King's Bench, an action was tried before him to recover the price of a slave who had been sold in Virginia. The verdict went for the plaintiff. In deciding upon a motion made in arrest of judgment, Holt, C.J., said,—"As soon as a negro comes into England he is free: one may be a villein in England, but not a slave." (Cases temp. Holt, 405.)
As to the period at which villenage in England became extinct, we find in Litt. (sec. 185.):—
"Villenage is supposed to have finally disappeared in the reign of James I., but there is great difficulty in saying when it ceased to be lawful, for there has been no statute to abolish it; and by the old law, if any freeman acknowledged himself in a court of record to be a villein, he and all his after-born issue and their descendants were villeins."
Even so late as the middle of the eighteenth century, when the great Lord Mansfield adorned
the bench, it was pleaded "that villenage, or slavery, had been permitted in England by the common law; that no statute had ever passed to abolish this status;" and that "although de facto villenage by birth had ceased, a man might still make himself a villein by acknowledgment in a court of record." This was in the celebrated case of the negro Somersett, in which Lord Mansfield first established that "the air of England had long been too pure for a slave." In his judgment he says,—
"... Then what ground is there for saying that the status of slavery is now recognised by the law of England?... At any rate, villenage has ceased in England, and it cannot be revived."—St. Tr., vol. xx. pp. 1-82.
And Macaulay, in his admirable History of England, speaking of the gradual and silent extinction of villenage, then, towards the close of the Tudor period, fast approaching completion, says:
"Some faint traces of the institution of villenage were detected by the curious as late as the days of the Stuarts; nor has that institution ever to this hour been abolished by statute."
Tee Bee.
Villenage (Vol. iii., p. 327.).—In reply to the question put by H. C., I beg to say that in Burton's Leicestershire (published in 1622), a copy of which is now before me, some curious remarks occur on this subject. Burton says, under the head of "Houghton-on-the-Hill," that the last case he could find in print, concerning the claim to a villein, was in Mich. 9 & 10 Eliz. (Dyer, 266. b.), where one Butler, Lord of the Manor of Badminton in Gloucestershire, did claim one Crouch for his villein regardant to his said manor, and made an entry upon Crouch's lands in Somersetshire. Upon an answer made by Crouch, an ejectione firmæ was brought in the King's Bench; and upon the evidence it was moved, that as no seizure of the body had been made, or claim set up by the lord, for sixty years preceding, none could then be made. The Court held, in accordance with this, that no seizure could be made. I do not know what the reference means; perhaps some of your legal correspondents may do so.
Jaytee.