Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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

Relative to villenage, the following are the words of the antient judge Fortescue, who wrote a treatise on the grounds of the English law, for the instruction of his pupil, the unfortunate son of the unfortunate king Henry the Sixth. Ab homine, & pro vitio introducta est servitus; sed libertas a Deo hominis est indita naturæ. Quare ipsa ab homine sublata semper redire gliscit, ut facit omne quod libertate naturali privatur[299]. We are now to see how, and in how many ways, our law favours this natural propensity to liberty. And the first and plainest is a direct enfranchisement, or, as the Romans called it, manumission. This, in the ancient times, before writing was common, used to be done, as all their important acts, (for the better preserving them in memory) in great form. Qui servum suum liberum facit, in ecclesia, vel mercato, vel comitatu, vel hundredo, (that is, the county court or hundred court) coram testibus, & palam faciat, et liberas ei vias, & portas conscribit apertas, & lanceam, & gladium, vel quæ liberorum arma in manibus ei ponat[300]. But after the use of writing became common, the method was by the lord’s deed (mentioning him to be his villein, and expressly infranchising him) sealed by the lord’s seal, and attested by proper witnesses, as other deeds between freemen should be[301].

Before I go farther, I should observe the favour of the English laws to liberty in that, by it all manumission, of what kind soever, was absolute and irrevocable. Once a freeman, and ever so; whereas by the civil law, a freedman was bound to many duties towards his patron. A relation between them still subsisted, and if he was guilty of ingratitude, that is, of any of the many offences their law marked as such, he was again to be reduced to slavery.

But besides this species of express enfranchisement, there were many implied ones. First, by the a act of the lord alone, and others by construction of law, upon the act either of lord or villein. By the act of the lord alone, namely, if he had entered into any solemn certain contract with his villein, giving him thereby either a permanent right of property, or a power to bring an action against his lord. In such cases he was instantly manumized, without express words; for, otherwise, he could not have the benefit of the gift intended, and the lord’s act, in such cases, should be construed most wrongly against himself. As if the lord gives land to his villein and his heirs, or to him and the heirs of his body, or to him for life; immediately on the giving livery and seizin, which was, as I have often observed, what compleated an estate of freehold, and made it irrevocable, the villein became free. Otherwise he could not enjoy the benefit of the grant, or protect it against his lord.

The same was the case if the lord gave him any certain property, as a bond for payment of a sum of money, or a yearly annuity, or a lease of lands for years. The villein could not securely enjoy the benefit of the gift, without being able to bring an action against his lord, and consequently being free against him. Yea, though the annuity or lease of land was but for years, the manumission was absolute for ever, and not suspended for the years only; which was different from the cases I put in my last lecture, of villenage being suspended by the act, not of the lord, but another person; but here where the lord himself, by his own act, set him free, though but for a time, he was free for ever. But if the lord gave his villein lands to hold at will; this being of the same nature with the proper holdings of villeins, and the lord having reserved in his own breast a power of ousting whenever he pleased, the villein gaining thereby no certain property, he continued in his former situation.

Secondly, a man may be enfranchised without express words, by construction of law, operating on the act either of the lord or villein. If a lord had a mind to dispossess his villein of lands, or of goods, he had a right to enter on the lands, or seize the goods, without ceremony; but if, waving this right, he brought an action against him for them, or if he brought not any action personal against him, but the one of Nativo Habendo, the villein was enfranchised, whether the lord recovered or not, or whether he prosecuted the action or not. For when he omitted the easy remedy the law appointed, and brought his villein into court to defend his right, he admitted him to be a person that could stand in judgment against him, and litigate with him; that is, to be a freeman. But it must be observed this enfranchisement did not commence immediately from the taking out the writ, which was the commencement of the action, but from the appearance of both plaintiff and defendant, and this for the benefit of the lord; for otherwise, as Coke observes, a stranger, by collusion with a villein, might take out an action against him in his lord’s name. To which I may add, that the lord might have intended his action against a freeman of the same name with the villein, and the sheriff might have summoned the villein by mistake. In this case it was hard that the lord should suffer. He therefore might, when he saw the villein ready to appear, nonsuit himself, that is, decline appearing; and then the villein could not appear, and therefore was not enfranchised. But if he went on, and suffered his villein to appear, and consequently enabled him to plead against him, he must have abided by the consequences of his own folly, and his nonsuiting himself afterwards could in no sort avail him[302].

A villein might likewise be manumitted by his lord’s bringing a criminal action against him, though this was no admission of permanent property in him, or of his capacity of standing in law against him as a freeman; as if the lord brought an appeal of felony, as of murder, or robbery, against him. If he was acquitted he might be enfranchised, because he might be entitled to recover damages for the malicious prosecution, and the danger his life had been in; and damages he could not recover without being a freeman. I say might be enfranchised, because he might recover damages. For in this case a distinction is to be taken, whether the villein was, before the appeal brought, indicted at the suit of the king for the same offence, or was not. If he was not, the acquittal shewed the prosecution to be malicious, and the villein was entitled to recover damages, and so to be free. But if he had been indicted, there were no grounds to suppose the appeal brought maliciously. The finding the indictment by the grand jury was a presumption of his guilt. The lord had a rational ground for bringing his appeal, and he had a right to bring it for the punishment of his villein, if guilty. Otherwise he could not have him hanged, for the indictment at the king’s suit might not be prosecuted, or the king might pardon. In such case, therefore, there being no malice presumed, the law gave no damages, and consequently no enfranchisement. But the lord’s bringing the writ called Nativo habendo against his villein, namely, claiming a man to be his, as such, was no enfranchisement, for that would defeat the ends of the suit; and the law allowed the lord a power to seize his villein without further ceremony, it did not precisely compel him to that method only, for his villein might be at too remote a distance, or under the protection of persons too powerful. But if, after appearance, the lord suffered himself to be nonsuited, in this action, it was an enfranchisement.

The law, likewise, enfranchised in some cases on the act of the villein himself, as if the lord had been found guilty in an appeal of murder, brought by his villein, or of rape by his nief; but these I mentioned in the last lecture, and the reason is apparent.

By all these various ways the number of villeins insensibly diminished, and the number of freemen continued to encrease in every reign; but what gave the finishing stroke to servitude were the confusions occasioned by the two contending houses of York and Lancaster; when the whole kingdom was divided, and every lord obliged, even for his own security, to take part with one side or the other; and when once engaged, necessitated to support his party with his whole force. Villeins were, therefore, emancipated in prodigious numbers, in order to their becoming soldiers. Many of such, also, who had not been formerly emancipated, in those times of distraction, fled for self-preservation to London, and other cities, where, being absent from their lords, they were looked upon as free; and where they generally continued, even after these troubles had ceased, unknown to the heirs of the antient lords; and in consequence, for want of proof of their servitude within fifty years last past, (which was the time of limitation for this action) most of them and their posterity became free. When things afterwards became composed, under Henry the Seventh, many of these persons were by the heirs of their former lords reclaimed, and recovered as villeins, though, undoubtedly, the far greater part escaped undiscovered. But even in those actions that were brought, both judges and juries were very favourable to the persons claimed; the juries out of favour to liberty, and the judges, I presume, following the policy of that reign, one of the great objects of which was the depression of the great lords; to which nothing could more contribute than the lessening the number of the persons who were held in such strict dependance by them, and the profits of whose industry they had right to seize, to encrease their wealth and their power[303].