and could acquire no property. The rights and liabilities of these villeins. [ *94 ] lies; but it was at the mere will of the lord, who might dis- 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 villeins were also in the same state of bondage with their pa*rents; whence they were called in Latin, nativi, which gave rise to the female appellation of a villein, who was called a neife (x). In case of a marriage between a freeman and a neife, or a 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 (y). 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 (z); 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 Mode of enfraneither express or implied: express, as where a man granted chising them. 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 (c); 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 (d); for, as the lord might have a short remedy against his villein, by seizing 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 by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied *ma[ *95 ] numission. But, in case the lord indicted him for felony, it was otherwise; for the lord could not inflict a capital pun The uninterrupted enjoy ment and regular descent of lands held by villeins at length gave rise to tenures by copy of courtroll. Causes of this change. ishment on his villein, without calling in the assistance 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 interest in many places full as good, in others better than their lords. For the goodnature 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 spite 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). Thus copyhold tenures, as Sir Edward Coke observes (ƒ), although very meanly descended, yet come of an antient house (29); for, from what has been premised, it appears, that (e) F. N. B. 12. (29) Copyhold estates are of great antiquity; the description given of them by Bracton, who wrote in the time of Henry III. is precisely applicable to them in the present day. And the Extenta Manerii, taken in the reign of Edward I., and printed amongst the statutes, shews that customary te (f) Cop. s. 32. nants had then a certain interest in 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 (30). Which *affords 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 (g) 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 (g) Commonwealth, b. 3, c. 10. [ *96 ] case, 4 Rep. 21. Foiston v. Crachrode, country, but a partial mitigation of 4 Rep. 32. (30) In the second note to the case of Grant v. Astle, (Dougl. 725), we are informed, that Lord Loughborough doubted whether those who, like our author, refer the origin of copyhold tenure to a mitigation of the state of villenage, are not mistaken. His Lordship founded his doubts upon the fact, that, in those parts of Germany from which the Saxons migrated into England, there are still co-existing a species of tenure exactly the same with our copyhold estates, and likewise a complete state of villenage. But the last editor of Dougl. Rep. observes, this is by no means a conclusive argument. All villenage may not have been done away with throughout a that state may have taken place: and, 66 66 "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 +." By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders; their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before; though, in general, the villein services are usually commuted for a small [97] pecuniary quit rent (h). To support a copyhold tenure it is requisite 1st. That the lands be parcel of, and within *As a farther consequence of what has been premised, we may collect these two main principles, which are held (i) to be the supporters of the copyhold tenure, and without which it cannot exist: 1. That the lands be parcel of, and situate within (31) that manor, under which it is held. 2. That they |