[147] “Acknowledge him to be related to them, whilst those produced by the other party should”—Added by Cotton., Bodl. and Dr. Milles’s MSS.
[148] “Or to disprove it.” Bodl. and Dr. Milles’s MSS. The Regiam Majestatem is yet more unrestrained—“But, it is to be noted, that single combat shall not have place in any plea, to prove or disprove the liberty or Estate of any man.” (L. 2. c. 11.)
[149] The Mirror enumerates many other modes by which a Villein was enfranchised, besides those stated by Glanville, which appear rather to be put for examples, than as comprising all the instances of emancipation; and the Mirror confirms most, if not all, of the Examples in the text. (c. 2. s. 28.) The Regiam Majestatem informs us, that Holy Orders enfranchised, if taken with the consent of the Lord. The Villein was also enfranchised, if the Lord seduced his wife, for the Law permitted the Villein to receive no other amends. The Villein was likewise emancipated, if the Lord drew blood of him, or, if the Lord refused to bail him, either in a civil or criminal action in which he was afterwards cleared by Trial. (Regiam Majestatem, L. 2. c. 12.) The act of enfranchisement, when not arising by implication of Law, of which description many of the instances appear to be, was, in ancient times and before writing was common, accompanied by much publicity and ceremony. Qui servum suum liberum facit in Ecclesiâ, vel Mercato, vel Comitatu, vel Hundredo, coram testibus et palam faciat, et liberas ei vias et portas conscribit apertas, et lanceam et gladium vel quæ liberorum arma in manibus ei ponat. (Anglo-Sax. LL. Ed. Wilkins.) When writing became common, the method was, by the Lord’s Deed expressly enfranchising the Villein. Upon the subject of Villenage, Fortescue’s words are no less remarkable for the truth and beauty of the sentiment they express, than singular, when it is considered that they were addressed to a Prince. Ab homine et pro vitio introducta est servitus: sed Libertas à Deo hominis est insita naturæ. Quare ipsi ab homine sublata semper redire gliscit, ut facit omne quod libertate naturali privatur. (de laudibus legum Angliæ, c. 42.)
[150] “Except he received his liberty and was made free with the Licence, good-will, and special command of the King.” (Reg. Maj. L. 2. c. 12.) Lord Littleton ascribes the rule in the text, to a jealousy of judicial proceedings. (3 Hist. Hen. 2. p. 192.) It more probably originated from the chivalric pride of the times. As the great Lords often personally engaged in the combat, their own importance was increased by keeping up the dignity of this mode of Trial.
[151] Bracton L. 1. fol. 6. b. 7. a. But even this period would not operate as a bar to the Lord, if within the year clameum suum qualitercunque apposuerit.—“If he remained quietly” are the words of the Regiam Majestatem, during a year and a day in a privileged Town he became free—but out of a privileged town seven years was the period—but this latter prescription held not good against the King. (L. 2. c. 12.)
[152] Villa privilegiata. Item, says a Law of the Conqueror, si servi permanserint sine calumniâ per annum et diem in civitatibus nostris vel in burgis in muro vallatis, vel in castris nostris, à die illâ liberi efficiuntur, et liberi à jugo servitutis suæ sint in perpetuum. (LL. Gul. Conq. 66. Ed. Wilkins, p. 229.) “By privileged Town is meant a Town that had Franchises by prescription or charter—and this communication of liberty from thence to a Villein residing among them so short a time, shews the high regard to the Law of such corporations, and likewise a desire to favor enfranchisement, as much as the settled rules of property would admit.” (3 Hist. Hen. 2. p. 191. Litt.) This part of our Author’s text is considerably elucidated by Fleta, L. 4. c. 11. s. 11. and Co. Litt. 137. b.
[153] Gyldam, from the Saxon geldan and gildan. Gildare occurs in Domesday frequently pro solvere, reddere. (Vide Spelman Gloss.)
[154] “Those are Villeins who are begot of Villeins and Niefs in servitude, whether born in matrimony or out of matrimony; those also are Villeins who are begotten of Villeins and born of free-women in matrimony, and those are Villeins who are begotten of a freeman and a Nief and born out of matrimony.” (Mirror, c. 2. s. 28. See also Bracton fols. 4. 5. and Fleta L. 1. c. 3.)
[155] From the extreme brevity and quaintness of the original, it is a matter of some doubt, what the true meaning of the passage is. Lord Littleton gives the passage thus. “We are told by Glanville, that in his time, if a freeman married a woman born in Villenage and who actually lived in that state, he lost thereby the benefit of the Law (that is all the legal rights of a freeman,) and was considered as a Villein by birth, during the lifetime of his wife, on account of her Villenage.” This, however, is at best but a loose paraphrase of Glanville. His Lordship was aware of it, and to confirm his representation of what is said, as he terms it, so indistinctly by Glanville, he refers to Bracton, fol. 5. Mr. Reeves makes this severe penalty upon the Husband to arise, not from the wife living in a state of Villenage, but her holding property in Villenage. The fact is, the text expresses neither Lord Littleton’s Explanation, nor that given by Mr. Reeves. I do not flatter myself to have succeeded better. In Britton’s time, the wife was enfranchised during the coverture. (78. b.) Vide Co. Litt. 123. a. and 137. b. and Mr. Hargrave’s notes thereon.
[156] “This,” exclaims Lord Littleton, “was absolutely putting children upon the same foot as cattle, or other stock on a farm, without the regard that is due to the inherent freedom and dignity of human nature.” (3 Hist. Hen. 2. p. 191.)