of people in a condition of downright servitude, 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 folk-land, 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 state, might give some sparks of enfranchisement to such wretched 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.m This they called villenage, and the tenants villeins either from the word vilis, or else, as sir Edward Coke tells us," a villa; because they lived chiefly in villages, and were employed in rustic works of the most sordid kind: "like the Spartan helotes, to whom alone the culture of the lands was consigned; 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 regardant, that is, annexed to the manor or land: or else they were in gross, or at large, that is, annexed to the person of the lord, and transferable by deed from one owner to another." They could not leave their 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 m Wright. 217. n 1 Inst. 116. o Litt. 181. 9 Ninth edition reads "resembling." - Quoted, 9 Ga. 561. +- Quoted, 9 Ga. 566, 667, 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 offices:P and their services were not only base, but uncertain both as to their time and quantity. 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 Stiernhook attributes also to the traals or slaves 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, oust the villein, and seise them to his own use, unless he contrived to dispose of them again before the lord had seised them; for the lord had then lost his opportunity.t* 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:" 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 villeins were also in the same state of bondage with their parents; [94] whence they were called in Latin, nativi, which gave rise to the female appellation of a villein, who was called a neife. In case of a marriage between a freeman and a neife, or a p Ibid. 172. q Ille qui tenet in villenagio faciet quicquid ei præceptum fuerit, nec scire debet sero quid facere debet in crastino, et semper tenebitur ad incerta. (Bracton. l. 4. tr. 1. c. 28.) *Cited, 3 McCord, 402; 9 Ga. 567; 1 Grant Cas. 24. villein and a freewoman, the issue followed the condition of the father, being free if he was free, and villein if he was villein; contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because by another maxim of ́our law he is nullius filius; and as he can gain nothing by inheritance, it were hard that he should lose his natural freedom by it. The law however protected the persons of villeins, as the king's subjects, against atrocious injuries of the lord: for he might not kill, or maim his villein; though he might beat him with impunity, since the villein had no action or remedy at law against his lord, but in case of the murder of his ancestor, or the maim of his own person. Neifes indeed had also an appeal of rape, in case the lord violated them by force.a† 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: b 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 freeman, it was in some of the instances giving him an action against his lord, and in others, vesting an ownership in him 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 seising his goods (which was more than equivalent to y Ibid. 187. 188. z Ibid. 189. 194. a Ibid. 190. b Ibid. 204. c204, 5, 6. d 203. *Cited, 13 Mass. 551, and held inapplicable to this country. See 4 Mass. 123. + Cited, 1 Yerg. 158; 9 Ga. 567. any damages he could recover) the law, which is always ready to catch at any thing in favour of liberty, presumed that by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied [95] manumission. But, in case the lord indicted him for felony, it was otherwise; for the lord could not inflict a capital punishment on his villein, without calling in the assistance of the law.* Villeins, by this9 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 interest 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 several 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 copyhold.† e F. N. B. 12. 9 Ninth edition reads "these." *Cited, 4 McCord, 103; 17 Am. Dec. 715; 16 Ga. 505; 8 Humph. 189; 5 Heisk. 119; 5 Cold. 208. † Cited, 1 Grant Cas. 24. 2 BLACKST.-14. Thus copyhold tenures as sir Edward Coke observes,' although very meanly descended, yet come of an antient 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 before were held absolutely at the lord's will. Which affords [96] a very substantial reason for the great variety of customs that prevail in different manors, with regard both to the descent of 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 sir Thomas Smith & testifies 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 especially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was for one christian man to hold another in bondage; so that temporal men by little and little, by reason of that terror in their consciences, were glad to manumit all their villeins. But the said holy fathers, with the abbots and priors, did not in like sort by theirs; for they also had a scruple in conscience to impoverish and despoil the church so much as to manumit such as were bond to their churches, or to the manors which the church had gotten; and so kept their villeins still."‡ f Cop. 32. g Commonwealth, b. 3. c. 10. *Cited, 9 Ga. 564. + Cited, 4 Har. & McH. 303, t-t Quoted, 9 Ga. 563. |