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accession of that prince, and no tenant of a common lord smce the statute of quia emptores, could create any new tenants to hold of himfelf.
Now with regard to the folk-land, or effates held in vil. Jenage, this was a species of tenure neither strictly feodal, Norman, or Saxon; but mixed and compounded of them allk: and which also, on account of the heriots that usually attend it, may seem to have somewhat Danish in it's composition. Under the Saxon government there were, as sir William Temple speaks!, a sort of people in a condition of downright fervitude, used and employed in the most servile works, and belonging, both they, their children, and effects, to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folkland, from which they were removable at the lord's pleasure, On the arrival of the Normans here, it seems not improbable, that they, who were strangers to any other than a feodal flate, might give some sparks of enfranchisement to such vretched persons as fell to their share, by admitting them, as well as others, to the oath of fealty ; which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition". This they called villenage, and the tenants villeins, either from the word vilis, or else, as fir Edward Coke tells us", a villa ; because they lived chiefly in villages, and were employed in rustic works of the most fordid kind : resembling the Spartan helotes, to whom alone the culture of the lands was configned; their rugged masters, like our northern ancestors,
esteeming war the only honourable employment of mankind, ( 93 ) These villeins, belonging principally to lords of manors,
were either villeins regarılant, that is, annexed to the manor or land: or else they were in grofs, or at large, that is, annexed to the person of the lord, and transferrable by deed from one owner to another °. They could not leave their
k Wright. 215.
A i Inft. 116.
lord without his permission; but if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess. them whenever he pleased, and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demesnes, and any other the meanest officesp: and their services were not only base, but uncertain both as to their time and quantity 1. A villein, in short, was in much the same state with us, as lord Molesworth' describes to be that of the boors in Denmark, and which Stiernhooks attributes also to the traals or Naves in Sweden; which confirms the probability of their being in some degree monuments of the Danish tyranny. A villein could acquire no property either in lands or goods: but, if he purchased either, the lord might enter upon them, ouft the villein, and feise them to his own use, unless he contrived to dispose of them again before the lord had feised them ; for the lord had then lost his opportunity
In many places also a fine was payable to the lord, if the villein presumed to marry his daughter to any one without leave from the lord u: and, by the common law, the lord might also bring an action against the husband for damages in thus purloining his property W. For the children of vilp Ibid. $ 172.
rc.S. 9 Ille qui teret in villeragio faciet de jure Sueonum, l. 2. c. 4. quicquid ei praeceptum fuerit, nec scire
1 Litt. $ 177 di ber fero quid facere debet in crafrino, et c'0. Litt. 140. femper tenebitur ad incerta. (Bracton, l. w Litt. 202. 4. 17. 1. c. 28.) (3)
(3) This is an eloquent description of lavery Villeins were not protected by magna charta ; nullus liber homo capiatur vel ime prisonetur, &c. was cautiously expressed to exclude the poor villein; for as lord Coke tells us, the lord may beat his villein, and if it be without cause, he cannot have any remedy. What a degraded condition for a being endued with reason!
leins were also in the same state of bondage with their pa
rents; whence they were called in Latin, nativi, which gave ( 94 ) rise to the female appellation of a villein, who was called a
neifer. In case of a marriage between a freeman and a weife,
VILLEINS might be enfranchised by manumission, which is either express or implied : express ; as where a man granted to the villein a deed of manumission 6 : implied; as where a man bound himself in a bond to his villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee, for life or years“; for this was dealing with his villein on the footing of a freeman, it was in some of the instances giving him an action against his lord, and in others vesting in him an ownership entirely inconsistent with his former state of bondage. So also if the lord brought an action against his villein, this enfranchised him"; for, as the lord might have a short remedy against his villein, by feising his goods, (which was more than equivalent to any damages he could recover) the law, which is always ready to catch at any thing in favour of liberty, presumed that
* Litt. $187.
o Ibid. § 204. c$ 204, 5, 6. d § 208.
by bringing this action he meant to set his villein on the same footing with himfelf, and therefore held it an implied manumission. But, in case the lord indicted him for felony, 1951 it was otherwise ; for the lord could not inflict a capital punishment on his villein, without calling in the allistance of the law.
VILLEINS, by these and many other means, in process of time gained considerable ground on their lords; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an intereft in many places full as good, in others better than their lords. For the good. nature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, now gave them title to prescribe against their lords; and, on performance of the same services, to hold their lands, in spight of any determination of the lord's will. For, though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the custom of the manor; which customs are preserved and evidenced by the rolls of the several courts baron in which they are entered, or kept on foot by the constant immemorial usage of the sce veral manors in which the lands lie. And, as such tenants had nothing to shew for their estates but these customs, and admissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court roll, and their tenure itself a copyholde,
Thus copyhold tenures, as sir Edward Coke observes f, although very meanly descended, yet come of an ancient house ; for, from what has been premised, it appears, that copyholders are in truth no other but villeins, who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which e F. N. B. 12.
i Cop. $ 32,
before were held absolutely at the lord's will (4) Which affords a very substantial reason for the great variety of customs that prevail in different manors, with regard both to the descentof the estates, and the privileges belonging to the tenants. And these encroachments grew to be so universal, that when tenure in villenage was virtually abolished, (though copyholds were reserved) by the statute of Charles II, there was hardly a pure villein left in the nation. For fir Thomas Smith & teltifies, that in all his time (and he was secretary to Edward VI) he never knew any villein in gross throughout the realm ; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that “ the holy fathers, monks, and friars, “ had in their confessions, and specially in their extreme and « deadly sickness, convinced the laity how dangerous a s practice it was, for one christian man to hold another in « bondage : lo that temporal men by little and little, by «c reason of that terror in their consciences, were glad to “ manumit all their villeins. But the said holy fathers,
& Commonwealth. b. 3. c. 10.
(4) Lord Loughborough is inclined to question this origin of copyholds. “ I cannot help doubting (observes that learned lord) “ whether this deduction is not founded in mistake. The circum“ stance which first led me to entertain the doubt is, that in those “ parts of Germany from whence the Saxons migrated into Eng“ land, there exists, at this day, a species of tenure exactly the same “ with our copyhold estates ; and there exists likewile, at this day, « a complete state of villenage; so that both stand together, and « are not one tenure growing out of another, and by degrees as. “ faming its place, &c. &c. What I have slated, I found in a “ very accurate treatise of German law by Selchow, one of the pro“ fessors of the university of Gottingen, entitled, Elementa Juris “ privati Germanici. This seems sutficient to negative the idea, that “ copyholders sprang out of villeins. In England, villenage lias “ ceased, and copyholds remain; but here, as in other countries, “ they both prevailed at the same time.” Doug. 698.