claimed by prescription (u). This is generally said to have been the last case of villenage; but there are four subsequent cases in print. One was in Hilary 18th of Elizabeth (w); another was a judgment in Easter 1st of James (r); the third, which was never determined, happened in Trinity 8th of James (3); and the fourth was so late as Hilary 15th of James (3). From the 15th of James the 1st, being more than 150 years ago, the claim of villenage has not been heard of in our courts of justice; and nothing can be more notorious, than that the race of persons, who were once the objects of it, was about that time completely worn out by the continual and united operation of deaths and manumissions. strong. No one, says Britton (d), can be a villein except of ancient nativity, or by acknowledgment. All the proceedings in cases of villenage, when contested, conform to this idea of remote antiquity in the slavery, and are quite irreconcileable with one of modern commencement. 1. The villein in all such suits (c) between him and his lord was stiled natious as well as villanus; our ancient (f) writers describe a female slave by no other name than that of neif; and the technical name of the only writ in the law for the recovery of a villein is equally remarkable, being always called the Nativo Habendo, or writ of neifty. This peculiarity of denomination, which implies that villenage is a slavery by birth, might perhaps of itself be deemed too slight a foundation for any solid argument; but when combined with other circumstances more decisive, surely it is not without very considerable force. 2. In pleading villenage where it had not been confessed on some former occasion, the lord always founded his title on prescription. Our year books, and books of entries, are full of the forms used in pleading a title to villeins But though villenage itself is obselete, yet fortunately those rules, by which the claim of it was regulated, are not yet buried in oblivion. These the industry of our ancestors has transmitted; nor let us their posterity despise the reverend legacy. By a strange progress of human affairs, the memory of slavery expired now furnishes one of the chief obstacles to the introduction of slavery attempted to be revived; and the venerable reliques of the learning re-regardant. In the Homine Replegiando, and lative to villenage, so long consigned to gratify the investigating curiosity of the antiquary, or used as a splendid appendage to the ornaments of the scholar, must now be drawn forth from their faithful repositories for a more noble purpose; to inform and guide the sober judgment of this Court, and as I trust to preserve this country from the miseries of domestic slavery. Manner of making title to a vein explaiced. Littleton (a) says, every villein is either a villein by title of prescription, to wit that he and his an cestors have been villeins time out of memory, or he is a villein by his own confession in a court of record. And in another place (b), his description of a villein regardant and of a villein in gross shews, that title cannot be made to either without prescription or confession. Time whereof no memory runs to the contrary, is an inseparable incident to every prescription (c); and therefore, according to Littleton's account of villenage, the lord must prove the slavery ancient and immemorial; or the villein must solemnly confess it to be so in a court of justice. A still earlier writer lays down the rule in terms equally (u) Before this statute of Hen. the 8th, the time of limitation seems to have been the coronation of Hen. 3, as appears by the form of the Nativo Habendo; though in other writs of right the limitation by 31 E. 1, c. 39, was from the commencement of the reign of Rich. the 1st. (z) See Co. Entr. 406, b. (z) Yelv. 2. (y) This case is only to be found in Hughes's Abridgment, tit. Villenage, pl. 23. (z) Noy, 27. (a) Sect. 175. (b) Sect. 181, 182, & 185. (c) Litt. sect. 170. other actions where the plea of villenage was for the purpose of shewing the plaintiff's disability to sue, if the villein was regardaut, the defendant alledged, that he was seized of such a manor, and that the plaintiff and his ancestors had been villeins belonging to the manor time ont of mind, and that the defendant and his ancestors and all those whose estate he had in the manor, had been seized of the plaintiff and all his ancestors as of villeins belonging to it (g). In the Nativo Habendo the form of making title to a villein regardant was in substance the same (h). In fact, regardancy necessarily implies prescription, being where one and his ancestors have been annexed to a manor time out of the memory of man (i). As to 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. The author of the Mirroir (k), who wrote in the reign of Edward the 2d, only mentions villeius regardant: and sir Thomas Smith, who was secretary of state in the reign of Edward the 6th, says, that in his time he never knew a villein in gross throughout the realm (1). However, (d) Nul ne poit estre villeyn forsque de 'auncienne nativite ou par recognizance.' Britt. Wing. ed. cap. 31, p. 78. (e) See the form of the writs of Nativo Habendo and Libertate Probanda, and also of the Alias Homine Replegiando, where on the first writ the sheriff returns the claim of villenage. (f) Brit. cap. 31 & Litt. sect. 186. (g) See Rast. Entr. tit. Homine Replegiando, 373, & Lib. Intrat. 56. (h) See the form in Lib. Intrat. 97, & Rast. Entr. 401. (i) This is agreeable to what Littleton says in sect. 182. (k) Mirr. c. 2, § 38. (1) Smith's Commonwealth, b. 2, c. 10. his title; and at least two witnesses (4) of this description were requisite for the purpose. un after a long search, I do find places in the yearbooks, 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 (9) Fitzh. Nat. Br. 78, H. & Fitzh. Abr. seen, the villenage is alledged in the ancestors Villenage, 36 & 37.-Also Britton says, of the person against whom it was pleaded (m), masle sauns plusurs nest mie receivable.' and in one of them the words time beyond Britt. Wingate's ed. p. 82. It is remarkable memory' (n) are added. But if precedents had that females, whether sole or married, were not been wanting, the authority of Littleton, ac- receivable to prove villenage against men. cording to whom the title to villenage of each | Saunk de un home ne puit ne doit estre trie kind, unless it has been confessed must be by par femmes.' Britt. Wing. ed. p. 82. The prescription, would not have left the least room reason assigned is more antient than polite. It for supposing the pleading of a prescription is said to be pur lour fraylte,' and also beless necessary on the claim of villeins in gross cause a inanest pluis digne person que une than of those regardant. 'feme' 13 E. 1. Fitzh. Abr. Villenage, 37.* 3. The kind of evidence, which the law required to prove villenage, and allowed in disproof of it, is only applicable to a slavery in blood and family, one uninterruptedly transmitted through a long line of ancestors to the person against whom it was alleged. On the lord's part, it was necessary that he should prove the slavery against his villein by other villeins of the same blood (0), such as were descended from the same common male stock, and would acknowledge themselves villeins to the lord (p), or those from whom he derived (m) See 1 E. 2, 4.—5 E. 2, 15.-7 E. 2, 242, & 11 E. 2, 344. In 13 E. 4, 2, b. pl. 4, & 3 b. pl. 11, there is a case in which villenage in gross is pleaded, where one became a villein in gross by severance from the manor to which he had been regardant. This being the only case of the kind I have met with, I will state so much of it from the year book as is necessary to shew the manner of pleading. In trespass the defendant pleads, that a manor, to which the plaintiff's father was a villein regardant, was given to an ancestor of the defendant in tail; and that the manor descended to Cecil and Catharine; and that on partition between them, the villeiu with some lands was allotted to Cecil, and the manor to Catharine; and then the defendant conveyed the villein from Cecil to himself as heir. (n) 11 E. 2, 344. * "Antiently in Scotland the testimony of women was not admitted in any case. 'Ane 'woman may not pass upon assize or be witness, nather in ony instrument or contract, nor zit for preiving of ane persoun's age. Nevertheless gif thair be ony contraverser tuiching the age of ony persoun, the mother or the nurice · may be ressavit as witnessis for preiving thairof."" Balfour's Practicks, p. 378. "By our constant usage, women are not admitted as instrumentary witnesses, and as universal custom is law, so I doubt not but it will be a nullity in any writing that is attested by witnesses, who are both or even one of them women. And though the act 1681, mentions a subscribing witness with the masculine particle (be), yet that without the subsequent usage is not exclusive of women." Bankton's Inst. b. 1, tit. 1, sect. 7. "Of old, women were rejected in most cases, but they are for most part admitted, unless where the parties ought to have called witnesses, for then they have themselves to blame that did not make use of others; and therefore women are altogether incompetent witnesses to deeds of parties, testaments, or instruments of notaries." Bankton, book 4, tit. 33, s. 20. So Stair (book 4, tit. 43, s. 9,) says, that in civil cases women are not to be admitted as witnesses, except necessary. Sir George Mackenzie (Probation by Wit(0) See Bro. Abr. Villenage, 65 Reg. Br. nesses) says, "Women regulariter are not wit87, a. Old Nat. Br. 43, b. Fitz. Abr. Ville-nesses, neither in civil or criminal cases with us, nage, 38, 39. A bastard was not receivable to prove villenage, 13 E. 1. It. North. Fitzh. Abr. 36, & Britt. Wing. edit. 82, a. (p) In Fitzherbert's Natura Brevium, 79. B. it is said, that the witnesses must acknowledge themselves villeins to the plaintiff in the Nativo Habendo; and there are many authorities which favour the opinion. See Glanv. lib. 5, c. 4. Britt. Wing. ed. 81, a. 19 Hen. 6, 32, b. Old Tenures, chap. Villenage; and the form in which the confession of villenage by the plaintiff's witnesses is recorded, in Rast. Entr. tit. Nativo Habendo, 401, a. However, it must be confessed, that in Fitzherbert the opinion is delivered with a quare; and it is so irreconcilable with the lord's right of granting villeins, as it is stated by Littleton, sect. 181, that I will not insist upon it here. nor should they make as much faith with us, in criminalibus. The reason why women are excluded from witnessing, must be either that they are subject to too much compassion, and so ought not to be more received in criminal cases, than in any civil cases; or else the law was unwilling to trouble them, and thought it might learn them too much confidence, and make them subject to too much familiarity with men, and strangers, if they were necessitated to vague up and down at all courts, upon all occasions." See his Criminals, title 26, s. 4. Erskine (book 4, tit. 2, sect. 22,) instructs us, that women were rather exempted than debarred from giving testimony. Of the progress of the relaxation of this rule Nay, so strict was the law in this respect, that in the Nativo Habendo the defendant was not obliged to plead to the claim of villenage, unless the lord at the time of declaring on his title brought his witnesses with him into court, and they acknowledged themselves villeins, and swore to their consanguinity with the defendant (r); and if the plaintiff failed in adducing such previous evidence, the judgment of the court was, that the defendant should be free for ever, and the plaintiff was amerced for his false claim (s). In other actions the pro-human remembrance. Whenever the lord duction of suit or witnesses by the plaintiff, previously to the defendant's pleading, fell into dsuse some time in the reign of Edward the third; and ever since, the entry of such production on the rolls of the court has been mere form, being always with an &c. and without naming the witnesses. But in the Nativo Habendo the actual production of the suit, and also the examination of them, unless the defendant released (t) it in court, continued to be indispensable even down to the time when villenage (u) expired.-Such was the sort of testimony, by which only the lord could support the title of slavery; nor were the means of defence on the part of the villein less remarkable. If he could prove that the slavery was not in his blood and family, he intitled himself to liberty. The author of the Mirroir (w) expressly says, that proof of a free stock was an effectual defence against the claim of villenage; and even in the time of Henry the second the law of England was in this respect the same, as appears by the words of Glanville. In his chapter of the trial (x) of liberty, he says, that (r) Fitz. Nat. Br. 78, H. Fitzh. Abr. Villenage, 32 Lib. Intrat. 97. Rast. Entr. 401. Reg. Br. 87. (8) In Fitzh. Abr. Villenage, 38, there is an instance of such a judgment, merely for the plaintiff's failure in the production of his witnesses at the time of declaring on his title. (t) See 19 H. 6, 32 b. a case in which the defendant releases the examination of the suit. (u) The last entry in print of the proceedings in a Nativo Habendo contains the names of the secta or suit produced, and their acknowledgment of villenage on oath. See the case of Jerney against Finch, Hill. 18 Eliz. C. B. Co. Entr. 406, b. (w) Mirr. c. 2, § 28. (1) Glanv. lib. 5, c. 4. nett (Treatise on var. branch. of the Crim. Law of Scotland, chap. 17,) have cited several cases, and quoted other authorities, from which it appears that the rule was recognized to so late a period as the beginning of the 18th century. It is now abrogated (how or when I have not seen distinctly stated) "except" says Mr. Burnett," in the case of instrumentary witnesses, where women are in practice still excluded. I know of no case, however, where this point was ever argued, or received a decision: and it is doubtful whether such an objection would now be sustained." the person claiming it shall produce plures de proximis et consanguineis de eodem stipite unde ipse exierat exeuntes; per quorum libertates, si fuerint in curiâ recognitæ et probatæ, liberabitur à jugo servitutis qui ad libertatem proclamatur.' But the special defences which the law permitted against villenage are still more observable; and prove it beyond a contradiction to be what the author of the Mirroir emphatically stiles it (y), a slavery of so great an antiquity that no free stock can be found by sued to recover a villein by a Nativo Habendo, or alledged villenage in other actions as a disability to sue, the person claimed as a villein might either plead generally that he was of free condition, and on the trial of this general issue avail himself of every kind of defence which the law permits against villenage; or he might plead specially any single fact or thing, which if true was of itself a legal bar to the claim of villenage, and in that case the lord was compellable to answer the special matter. Of this special kind were the pleas of bastardy and adventif. The former was an allegation by the supposed villein that either himself or his father, grand-father or other male ancestor, was born out of matrimony; and this plea, however remote the ancestor in whom the bastardy was alleged, was peremptory to the lord; that is, if true it destroyed the claim of villenage, and therefore the lord could only support his title by denying the fact of bastardy. This appears to have been the law from a great variety of the most ancient authorities. The first of them is a determined case so early as the 13th of Edward the second (2), and in all the subsequent cases (a) the doctrine is received for law without once being drawn into question. In one of them (b) the reason why bastardy is a good plea in a bar against villenage is expressed in a very peculiar manner; for the words of the book are," when one claims any man as his villein, it shall be intended always that he is his villein by reason of stock, and this is the reason that there shall be an answer to the special matter where he alleges bastardy; because if his ancestor was a bastard, he can never be a villein, unless by sub (z) 13 E. 2, 408. (a) Hill. 19 E. 2. Fitzh. Abr. Villenage, 32.-39 E. 3, 36.-43 E. 3, 4.-19 Hen. 6, 11 & 12.-19 Hen. 6, 17.-Old Tenures, chap. Villenage.-Co. Litt. 123, a. In the case 19 H. 6, 17, there is something on the trial of bastardy in cases of villenage, explaining when it shall be tried by the bishop's certificate and when by a jury. See on the same subject Fitzh. Abr. Villenage, 32, & Lib. Intrat. 35, a. which latter book contains the record of a case where the trial was by the bishop. (b) 43 E. 3, 4. How it is that the rules of ing villenage law concern. exclude a new slavery. sequent acknowledgment in a court of record." Such were the striking peculiaThe force of this reason will appear fully on rities in the manner of making title recollection, that the law of England always to a villein, and of contesting the derives the condition of the issue from that of question of liberty; and it is scarce the father, and that the father of a bastard possible to attend to the enumerabeing in law uncertain (c), it was therefore im- tion of them, without anticipating me in the possible to prove a bastard a slave by descent. inferences I have to make.-The law of EngIn respect to the plea of adventif, there is some land only knows slavery by birth; it requires little confusion in the explanation, our year-prescription in making title to a slave; it rebooks give us, of the persons to whom the deceives on the lord's part no testimony except scription of adventif is applicable; but the form such as proves the slavery to have been always of the plea will best shew the precise meaning in the blood and family, on the villein's part of it. It alledged (d), that either the person every testimony which proves the slavery to himself who was claimed as a villein regardant have been once out of his blood and family; to a manor, or one of his ancestors, was born in it allows nothing to sustain the slavery except a county different from that in which the what shews its commencement beyond the time manor was, and so was free, which was held of memory, every thing to defeat the slavery to be a necessary conclusion to the plea. This which evinces its commencement within the in general was the form of the plea, but some- time of memory. But in our American colotimes it was more particular, as in the follow-nies and other countries slavery may be by ing case (e). In trespass, the defendant pleads captivity or contract as well as by birth; no that the plaintiff is his villein regardant to his prescription is requisite; nor is it necessary manor of Dale; the plaintiff replies, that his that slavery should be in the blood and family, great-grandfather was born in C, in the county and immemorial. Therefore the law of Engof N, and from thence went into the county of land is not applicable to the slavery of our S, and took lands held in bondage within the American colonies, or of other countries.---If manor to which the plaintiff is supposed to be the law of England would permit the introa villein regardant, and so after time of me- duction of a slavery commencing out of Engmory his great-grandfather was adventif. It is land, the rules it prescribes for trying the title plain from this case, that the plea of adventif to a slave would be applicable to such a slavery; was calculated to destroy the claim to villenage but they are not so; and from thence it is eviregardant, by shewing that the connection of dent that the introduction of such a slavery is the supposed villein and his ancestors with the not permitted by the law of England.--The manor to which they were supposed to be re- law of England then excludes every slavery gardant, had begun within time of memory; not commencing in England, every slavery and as holding lands by villein-services was though commencing there not being antient anciently deemed a mark (f), though not a and immemorial. Villenage is the only slavery certain one, of personal bondage, I conjecture which can possibly answer to such a dethat this special matter was never pleaded, ex- scription, and that has long expired by the cept to distinguish the mere tenant by villein deaths and emancipations of all those who services from the villein in blood as well as were once the objects of it. Consequently tenure. But whatever might be the cases there is now no slavery which can be lawful in proper for the plea of adventif, it is one other England, until the legislature shall interpose incontrovertible proof, in addition to the proofs, its authority to make it so. already mentioned, that no slavery having had commencement within time of memory was lawful in England; and that if one ancestor could be found whose blood was untarnished with the stain of slavery, the title of villenage was no longer capable of being sustained. (c) Co. Litt. 123, a. (d) 13 E. 1. It. North. Fitz. Abr. Villenage 36. 19 E. 2. Fitz. Abr. Villenage 32. 33 E. 3. Fitz. Abr. Visne 2.-39 E. 3, 36.41 E. 3. Fitz. Abr. Villenage 7.-43 E. 3, 31. -50 E. 3. Fitz. Abr. Villenage, 24.-19 H. 6, 11.-19 H. 6, 17. (e) 31 E. 3. Fitz. Abr. Visne 1. (f) Fitzherbert says, "if a man dwells on lands which have been held in villenage time out of mind, he shall be a villein, and it is a good prescription; and against this prescription it is a good plea to say that his father or grandfather was adventif," &c. Fitz. Abr. Villenage 24. This is plain, unadorned, and direct reasoning; it wants no aid from the colours of art, or the embellishments of language; it is composed of necessary inferences from facts and rules of law, which do not admit of contradiction; and I think, that it must be vain to attempt shaking a superstructure raised on such solid foundations. 'As to the other arguments I have to adduce against the revival of domestic slavery, I do confess that they are less powerful, being merely presumptive. But then I must add, that they are strong and violent presumptions; such as furnish more certain grounds of judicial decision, than are to be had in many of the cases which become the subjects of legal controversy. For against a new slavery from the fact of there never 2dly. I infer that the law of 2d. Argument England will not permit a new slavery, from the fact of there never yet having been any slavery but villenage, and from the actual extinction of that antient slavery. If a new slavery could have law having been any slivery and from the but villenage, extinction of that slavery, fully commenced here, or lawfully have been introduced from a foreign country, is there the most remote probability, that in the course of so many centuries a new slavery should never bave arisen? If a new race of slaves could bave been introduced under the denomination of villeins, if a new slavery could have been from time to time engrafted on the antient stock, would the laws of villenage have once become obsolete for want of objects, or would not a successive supply of slaves have continued their operation to the present times? But notwithstanding the vast extent of our commercial connections, the fact is confessedly otherwise. The antient slavery las once expired; neither natives nor foreigners have yet succeeded in the introduction of a new slavery; and from thence the strongest presumption arises, that the law of England doth not permit such an introduction. 34. Argument against a new slavery from the rules of law against slavery by contract agreements to be lawful. The law of England may perhaps give effect to a contract of service for life; but that is the ne plus ultra of servitude by contract in England. It will not allow the servant to invest the master with an arbitrary power of correcting, imprisoning, (i) or alienating him; it will not permit him to renounce the capacity of acquiring and enjoying property, or to transmit a contract of service to his issue (k). In other words, it will not permit the servant to incorporate into his contract the ingredients of slavery. And why is it that the law of England rejects a contract of slavery? The only reason to be assigned is, that the law of England, acknowledging only the antient slavery which is now expired, will not allow the introduction of a new species, even though founded on consent of the party. The same reason operates with double force against a new slavery founded on captivity in Sdly. I insist, that the unlaw. war, and introduced from another country. fulness of introducing a new sla-Will the law of England condemn a new slavery into England, from our Ame- very commencing by consent of the party, and at rican colonies or any other coun- the same time approve of one founded on force, try, is deducible from the rules of and most probably on oppression also? Will the the English law concerning contracts of ser- law of England invalidate a new slavery comvice. The law of England will not permit any mencing in this country, when the title to the man to enslave himself by contract. The ut- slavery may be fairly examined; and at the most, which our law allows, is a contract to same time give effect to a new slavery introserve for life; and some perhaps may even duced from another country, when disproof of doubt the validity of such a contract, there the slavery must generally be impossible? being no determined cases directly affirming its This would be rejecting and receiving a new lawfulness. In the reign of Henry the 4th (g), slavery at the same moment; rejecting slavery there is a case of debt, brought by a servant the least odious, receiving slavery the most against the master's executors, on a retainer to odious: and by such an inconsistency, the serve for term of life in peace and war for 100 wisdom and justice of the English law would shillings a-year; but it was held, that debt did be completely dishonoured. Nor will this reanot lie for want of a speciality; which, as was soning be weakened by observing that our law agreed, would not have been necessary in the permitted villenage, which was a slavery concase of a common labourer's salary, because, fessed to originate from force and captivity in as the case is explained by Brooke in abridging war; because that was a slavery coeval with it, the latter is bound to serve by statute (h). the first formation of the English constitution, This case is the only one I can find, in which and consequently had a commencement here a contract to serve for life is mentioned; and prior to the establishment of those rules which even in this case, there is no judicial decision the common law furnishes against slavery by on the force of it. Nor did the nature of the contract. case require any opinion upon such a contract; the action not being to establish the contract against the servant, but to enforce payment against the master's executors for arrears of salary in respect of service actually performed; and therefore this case will scarce bear any inference in favour of a contract to serve for life. Certain also it is, that a service for life in England is not usual, except in the case of a military person; whose service, though in effect for life, is rather so by the operation of the yearly acts for regulating the army, and of the perpetual act for governing the navy, than in consequence of any express agreement. However, I do not mean absolutely to deny the lawfulness of agreeing to serve for life; nor will the inferences 1 shall draw from the rules of law concerning servitude by contract, be in the least affected by admitting such (g) 2 H. 4, 14. (h) Bro. Abr. Dett. 59. VOL. XX. Having thus explained the three great arguments which I oppose to the introduction of domestic slavery from our American colonies, Examination of the cases on the subject of slavery since or just before the (i) Lord Hobart says, "the body of a freeman cannot be made subject to distress or imprisonment by contract, but only by judgment." Hob. 61. I shall have occasion to make use of this authority again in a subsequent part of this argument. (k) Mr. Molloy thinks, that servants may contract to serve for life; but then he adds, "but at this day there is no contract of the ancestor can oblige his posterity to an hereditary service; nor can such as accept those servants exercise the ancient right or dominion over them, no not so much as to use an extraordinary rigour, without subjecting themselves to the law." Moll. de Jur. Marit. 1st ed. b. 3, c. 1, s. 7, p. 388. E |