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.