vill2 [8]
42, 43), 'As to the 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.... However, after a long search, I do find places in the Year Books 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 seen, the villenage is alledged in the ancestors of the person against whom it was pleaded.' And he quotes 1 Edw. II, 4; 5 Edw. II, 157 (corr. for 15); 7 Edw. II, 242, and 11 Edw. II, 344. But all these cases are of Edward II's time, and instead of being exceptional give the normal form of pleading as it was used up to the second quarter of the fourteenth century. They looked exceptional to Hargrave only because he restricted his search to the later Year Books, and did not take up the Plea Rolls. By admitting the cases quoted to indicate villainage in gross, he in fact admitted that there were only villains in gross before 1350 or thereabouts, or rather that all villains were alike before this time, and no such thing as the difference between in gross and regardant existed. I give in App. I the report of the interesting case quoted from I Edw. II.
3. Y. B. 32 /33 Edw. I (Horwood), p. 57: 'Quant un home est seisi de son vilein, issl. qil est reseant dans son vilenage.' Fitzherbert, Abr. Vill. 3 (39 Edw. III): '... villeins sunt appendant as maners qe sount auncien demesne.' On the other hand, 'regardant' is used quite independently of villainage. Y. B. 12/13 Edw. III (Pike), p. 133: 'come services regardaunts al manoir de H.'
1. Y.B. Hil. 14 Edw. II, f 417: 'R. est bailli... del manoir de Clifton... deins quel manoir cesti J. est villein.'
2. See App. I and II.
3. Y.B. Trin. 9 Edw. II, f 294: 'Le manoir de H. fuit en ascun temps en la seisine Hubert nostre ael, a quel manoir cest vileyn est regardant.'
1. Y.B. Trin. 29 Edw. III, f. 41. For the report of this case and the corresponding entry in the Common Pleas Roll, see Appendix II.
1. Cf. Annals of Dunstaple, Ann. Mon. Iii. 371: 'Quia astrarius eius fuit,' in the sense of a person living on one's land.
2. Bracton, f. 267, b.
3. Bract. Note-book, pl. 230, 951, 988. Cf. Spelman, Gloss. v. astrarius Kentish Custumal, Statutes of the Realm, i. 224. Fleta has it once in the sense of the Anglo-Saxon heord-faest, i. cap. 47, 10 (f. 62).
1. Bracton, f. 190.
Chapter 2
Rights and Disabilities of the Villain
Legal theory as we have seen endeavoured to bring the general conception of villainage under the principles of the Roman law of slavery, and important features in the practice of the common law went far to support it in so doing. On the other hand, even the general legal theory discloses the presence of an element quite foreign to the Roman conception. If we proceed from principles to their application in detail, we at once find, that in most cases the broad rules laid down on the subject do not fit all the particular aspects of villainage. These require quite different assumptions for their explanation, and the whole doctrine turns out to be very complex, and to have been put together out of elements which do not work well together. We meet discrepancies and confusion at the very threshold in the treatment of the modes in which the villain status has its origin. The most common way of becoming a villain was to be born to this estate, and it seems that we ought to find very definite rules as to this case. In truth, the doctrine was changing. Glanville (v. 6) tried in a way to conform to the Roman rule of the child following the condition of the mother, but it could not be made to work in England, and ever since Bracton, both common law and jurisprudence reject it. At the close of the Middle Ages it was held that if born in wedlock the child took after his father,* and that a bastard was to be accepted as filius nullius and presumed free.* Bracton is more intricate; the bastard follows the mother, the legitimate child follows the father; and there is one exception, in this
3. Y. B. 32 /33 Edw. I (Horwood), p. 57: 'Quant un home est seisi de son vilein, issl. qil est reseant dans son vilenage.' Fitzherbert, Abr. Vill. 3 (39 Edw. III): '... villeins sunt appendant as maners qe sount auncien demesne.' On the other hand, 'regardant' is used quite independently of villainage. Y. B. 12/13 Edw. III (Pike), p. 133: 'come services regardaunts al manoir de H.'
1. Y.B. Hil. 14 Edw. II, f 417: 'R. est bailli... del manoir de Clifton... deins quel manoir cesti J. est villein.'
2. See App. I and II.
3. Y.B. Trin. 9 Edw. II, f 294: 'Le manoir de H. fuit en ascun temps en la seisine Hubert nostre ael, a quel manoir cest vileyn est regardant.'
1. Y.B. Trin. 29 Edw. III, f. 41. For the report of this case and the corresponding entry in the Common Pleas Roll, see Appendix II.
1. Cf. Annals of Dunstaple, Ann. Mon. Iii. 371: 'Quia astrarius eius fuit,' in the sense of a person living on one's land.
2. Bracton, f. 267, b.
3. Bract. Note-book, pl. 230, 951, 988. Cf. Spelman, Gloss. v. astrarius Kentish Custumal, Statutes of the Realm, i. 224. Fleta has it once in the sense of the Anglo-Saxon heord-faest, i. cap. 47, 10 (f. 62).
1. Bracton, f. 190.
Chapter 2
Rights and Disabilities of the Villain
Legal theory as we have seen endeavoured to bring the general conception of villainage under the principles of the Roman law of slavery, and important features in the practice of the common law went far to support it in so doing. On the other hand, even the general legal theory discloses the presence of an element quite foreign to the Roman conception. If we proceed from principles to their application in detail, we at once find, that in most cases the broad rules laid down on the subject do not fit all the particular aspects of villainage. These require quite different assumptions for their explanation, and the whole doctrine turns out to be very complex, and to have been put together out of elements which do not work well together. We meet discrepancies and confusion at the very threshold in the treatment of the modes in which the villain status has its origin. The most common way of becoming a villain was to be born to this estate, and it seems that we ought to find very definite rules as to this case. In truth, the doctrine was changing. Glanville (v. 6) tried in a way to conform to the Roman rule of the child following the condition of the mother, but it could not be made to work in England, and ever since Bracton, both common law and jurisprudence reject it. At the close of the Middle Ages it was held that if born in wedlock the child took after his father,* and that a bastard was to be accepted as filius nullius and presumed free.* Bracton is more intricate; the bastard follows the mother, the legitimate child follows the father; and there is one exception, in this