The Principal Laws of England, Treatise · Part 27
Of villenage or bonde seruice.
A Tenant in villenage is proper lye whan a villayne, that is to saye, a bondman holdeth of his lord, whose bondman he is, certayne landes or tenementes, accordynge to the custome of the Manoure or otherwyse at the wyll of hys lorde, and to do his lorde villayne seruice, as to beare & to carye y• donge of his lorde out of ye citie or out of hys lordꝭ Manoure, & to lay it vponupon the demeane landes of his lorde, or to do such like seruyle & villayne seruice. How be it fre men in some places holde theyr tenementes & lādes of their lordes by custome, by such sorte of seruice, and theyr tenure is called tenure in villenage, & yet they themselues be no villaines ne of seruile condicion but fre mē. For the land holden in villenage maketh not the tenant a villayn, but contrary wyse a villayne may make fre land to be villayne land vntounto his lorde. As if a villayn purchaseth lād in fee simple or in fee tayle, the lorde of the villayne maye entre into the lande so purchased by hys bondman and put hym and his heyres out for euer, and this done, the lord if he wil maye lease the same lande to his villayne to holde of hym in villenage.
And here ye shall vnderstande, that seruitute or villenage, is the ordinance, not of the law of nature but of that law, which is called Ius gentium, by whyche a man is made subiecte (contrary to nature) vntounto an other mannes dominiō. For he that is a villayne or bondman, eyther he is so by title of prescription (that is to saye) he and hys auncestoures hauehave bene villaynes tyme out of minde, or elles he is a villayne by his owne cō fession in court of recorde, so that all villaynes either they be borne villaynes, or elles they be made so. They be borne villaines when theyr father beynge a bonde man himselfe begetteth them in lawfull wedlocke, either of a fre woman or of a bond woman for so that the father be bonde, the issue of him lawfully begotten muste nedes be bonde by the lawes of Englande, hauynge no regarde to the cō dicion of the mother, where as in the ciuill lawe it is clene contrarye. For there partus sequitur ventrem (that is to say) the seruitute or bondage of the mother maketh the chylde bonde and not of the father. Howe be it the bastarde sonne of a bondeman shall not be bonde, bycause a bastarde is, nullius filius in the law, that is to say nomans sonne.
They be made vyllaynes two wayes, eyther by theyr owne propre acte, as whan a free man beynge of full age wyll come into a court of recorde, & there confesse himselfe bon…e to an other man.
Or elles by the lawes of armes, called, Ius gentium: as whan a man is taken prysoner in warres, and is compelled to serue and become the thrall and bondeman of hym that toke hym: the lawe calleth suche persone a villayne.
And ye shall note that vyllaynes be properly called in latyn serui, bycause that whā they be taken in war, the captaynes be wonte not to kyll them, but to sell them, and so to saue theyr lyfes, so yt they be called serui a seruando, that is to say of sauyng. They be also called Mancipia, a manu capíendo, bicause that they be taken by hand & poure of the enemies.
Nowe as I sayde by the lawe o… nature we are al borne free, but after that by the lawe of Gentilitie seruit…te inuaded the worlde, than ensued the benefyte of manumission. Manumission is de manu datio, that is to saye a gyuynge out of the hande or power. For so longe as a man is in bondage and seruitute, he is subiecte to the hande and power of an other, and whan he is manumissed he is made free & delyuered from the sayd power, so that a manumission is nothynge elles than an enfranchisemēt that is to saye, a wrytynge testifieng that the lorde hath enfranchised his villayn & al his offpring and sequel.
Also yf the Lorde maketh to hys villayne an obligacion of a certeyne summe of money, or grauntethe to him by his dede an annuitie or yearly pension, or leaseth to hym by dede landes or tenementes for terme of yeres, any of these actes do imply an enfranchisement.
Lykewyse yf the Lorde maketh a feoffement to his villayne, and maketh vntounto hym lyuery of seys…, thys also is an enfranchisment and secret manumissiō. Brefely to speke, where so euer the lorde compelleth his vyllaine by the course of the lawe to do that thyng that he myght otherwyse ēforce him to do or to suffre without the auctoritie and compulsion of the lawe, he doth by implication enfranchise his villayne, as if the lorde wyl bryng agaynst his villayne an action of det, an action of accompt, of couenant or of trespace, these and such lyke be in the eye of the lawe enfranchisementes and manumissions, bycause that the lorde in all these cases may hauehave the effecte and purpose of his suite (that is to saye) the goodes, catels, and correctiō of his bondman without the compulsion of the lawe euen by his owne propre power and authoritie whyche he hath vponupon hys villayne. But if the lord doth sue his vilayne by an appeale of felonye, the villayne beyng lawfully endyted of the same before, this is no tacite manumission or infranchisemēte, for the lorde though he hauehave power to beate his villaine and to spoyle him of his goodes, yet he can not by the lawe of this Realme put him to deathe.
Ye shall also vnderstande, that if a mannes villayne purchaseth landꝭ or acquyre and gette vntounto him anye other thynge, the lorde maye by and by entre, and sease the same in to hys owne handes. Wherfore if the lorde wyll brynge agaynste hys villayne a praecipe ꝙ reddat, by whyche he demaundeth agaynst his villayne any landes or tenementes, this implyeth an enfranchisemente, for asmoche as he byndeth himselfe to the prescripte and authoritie of the lawe, where as he might vse his owne authoritie, by entring and seasing the said landes.
Finally ye shal marke that some villaynes be called villaynes in grosse, and other some be called villaynes regardāt. In grosse be they of which the lorde is seuerally seased, and not by reasone of any lordeshyp or maner, but they be called regardaunte whiche do belonge to a Manoure, of whyche the lorde is seased, and the sayd villaynes hauehave bene regardant (that is to saye) expectant and attendante tyme out of mynde to the lorde of the sayde Manour, in doing vntounto him suche seruices as to a villayne appertayne.