[41] Stubbs, Constitutional History, ii. 652, 654; Freeman, Norman Conquest, v. 477; Digby, Introduction to the Law of Real Property, 244.
[42] Sir Thomas Smith, The Commonwealth of England, ed. 1609, p. 123, shows that the notion of two classes corresponding to the Roman servus and the Roman adscriptus glebae had taken root firmly about the middle of the sixteenth century. 'Villeins in gross, as ye would say immediately bond to the person and his heirs.... (The adscripti) were not bond to the person but to the mannor or place, and did follow him who had the mannors, and in our law are called villains regardants (sic), for because they be as members or belonging to the mannor or place. Neither of the one sort nor of the other have we any number in England. And of the first I never knew any in the Realme in my time. Of the second so fewe there bee, that it is not almost worth the speaking, but our law doth acknowledge them in both these sorts.'
[43] Section 182 is not quite consistent with such an exposition, but I do not think there can be any doubt as to the general doctrine.
[44] I need not say that the work done by Mr. Horwood, and especially by Mr. Pike, for the Rolls' Series quite fulfil the requirements of students. But in comparison with it the old Year Books in Rastall's, and even more so in Maynard's edition, appear only the more wretchedly misprinted.
[45] For instance, Liber Assisarum, ann. 44, pl. 4 (f. 283): 'Quil fuit son villein et il seisi de luy come de son villein come regardant a son maneir de B. en la Counte de Dorset.'
[46] Y.B. Hil. 5 Edw. II: 'Iohan de Rose port son [ne] vexes vers Labbe de Seint Bennet de Holme, et il counta qil luy travaille, etc., e luy demande.' Migg.: 'defent tort et force, ou et quant il devera et dit qil fuist le vilein Labbe, per qi il ne deveroit estre resceve.' Devom.: 'il covient qe vous disez plus qe vous estes seisi, ut supra,' etc. Migg.: 'il est nostre vileyn, et nous seisi de luy come de nostre vileyn.' Ber.: 'Coment seisi come,' etc.? Migg.: 'de luy et de ces auncestres come de nos vileynes, en fesant de luy nostre provost en prenant de luy rechate de char et de saunk et redemption pur fille et fitz marier de luy et de ces auncestres et a tailler haut et bas a nostre volente, prest,' etc. (Les reports des cases del Roy Edward le II. London, 1678; f. 157.)
[47] I do not think it ever came into any one's mind to look at the Plea Rolls in this matter. Even Hargrave, when preparing his famous argument in Somersett's case, carried his search no further than the Year Books then in print. And in consequence he just missed the true solution. He says (Howell's State Trials, xx. 42, 43),'As to the villeins in gross the cases relative to them are very few; and I am inclined to think that there never was any great number of them in England.... However, after a long search, I do find places in the Year Books where the form of alledging villenage in gross is expressed, not in full terms, but in a general way; and in all the cases I have yet seen, the villenage is alledged in the ancestors of the person against whom it was pleaded.' And he quotes 1 Edw. II, 4; 5 Edw. II, 157 (corr. for 15); 7 Edw. II, 242, and 11 Edw. II, 344. But all these cases are of Edward II's time, and instead of being exceptional give the normal form of pleading as it was used up to the second quarter of the fourteenth century. They looked exceptional to Hargrave only because he restricted his search to the later Year Books, and did not take up the Plea Rolls. By admitting the cases quoted to indicate villainage in gross, he in fact admitted that there were only villains in gross before 1350 or thereabouts, or rather that all villains were alike before this time, and no such thing as the difference between in gross and regardant existed. I give in [App. I] the report of the interesting case quoted from 1 Edw. II.
[48] Y.B. 32/33 Edw. I (Horwood), p. 57: 'Quant un home est seisi de son vilein, issi qil est reseant dans son vilenage.' Fitzherbert, Abr. Vill. 3 (39 Edw. III): '... villeins sunt appendant as maners qe sount auncien demesne.' On the other hand, 'regardant' is used quite independently of villainage. Y.B. 12/13 Edw. III (Pike), p. 133: 'come services regardaunts al manoir de H.'
[49] Y.B. Hil. 14 Edw. II, f. 417: 'R. est bailli ... del manoir de Clifton ... deins quel manoir cesti J. est villein.'