Book V.
OF THE QUESTION OF CONDITION, AND OF VILLEINS-BORN.
CHAP. I.
Our subject leads us in the next place to treat of Pleas concerning the Conditions of persons. Questions upon this subject arise, when any one would draw another, from a state of freedom, into that of Villenage;[140] or when any one, being in the latter state, seeks to emancipate himself. When any one claims another who is in Villenage as his Villein-born,[141] he shall have the Writ de nativis, directed to the Sheriff; and by that Writ he shall, before the Sheriff of the County, claim the Villein against him, who holds him in Villenage. And, if his Villenage be not denied before the Sheriff in the County Court, then the Plea concerning such Villein-born shall proceed before the Sheriff, as we shall presently explain, between the person claiming, and the person in possession, of the Villein. But, if the Villein allege himself to be a freeman, and give security to the Sheriff to prove the fact, then, the suit shall cease, as far as applies to the County Court; because the Sheriff ought not any farther to interfere in it.[142] But, if the Sheriff persist in hearing the suit, then, he whose condition is questioned shall complain to the Justices, and shall obtain the King’s Writ, in order that, if he should give security to the Sheriff to prove his freedom, the suit may be removed before the Justices of the King’s Court, and in the mean time, the party be unmolested. The Writ is as follows.—
CHAP. II.
“The King to the Sheriff, Health.[143] R. complains to me that N. draws him to Villenage, although he is a freeman, as he says. And, therefore, I command you that, if the said R. make you secure of prosecuting his claim, then, that you put the suit before me, or my Justices, on such a day; and, in the mean time, you cause that he be in peace; and summon, by good Summoners, the aforesaid N. that he be then there to shew why, he unjustly draws him to Villenage. And have there, &c.”
CHAP. III.
By the same Writ, the party who lays claim to the other, as being his Villein, shall be summoned; and a day shall be appointed him on which he may prosecute his claim. But, if on the day appointed, the person who is claimed as a Villein should neither appear, nor send a Messenger, nor Essoin, let the same course be pursued, as that before described in treating of Pleas, where the Pledges are to be attached. But, if he chuse to essoin himself, he may avail himself of the same number of Essoins, and on the same occasions as we have already mentioned. But if the party who claims the other as his Villein, neither appear on that day, nor send, let the other party, if present, be dismissed unconditionally, under such form, namely, that the claimant shall recover so much as by Law he ought to recover, concerning which principle we have spoken more fully, in the preceding part of this Treatise. In the mean time, the party who is claimed as a Villein shall be in Seisin of his freedom.
CHAP. IV.
Both parties being present in Court, the freedom shall be there proved in this manner: the party who claims his liberty, shall produce a number of his nearest relations and kindred, springing from the same stock from which he descended. If their freedom be recognized and proved in Court, the party who demands[144] his freedom shall be liberated from the yoke of servitude. But, if the free condition of those produced be denied,[145] or a doubt be entertained respecting it, recourse shall be had to the Vicinage, whose Verdict shall ascertain the fact, whether those produced are free, or not: and, according to its decision, the matter shall be adjudged. But, if the party who claims the other as his Villein, should bring forward other persons to prove the contrary, namely, that such persons as the claimant has now brought forward are his Villeins-born, and that they sprung from the same common stock with him, whom he claims as a Villein-born, then, in like manner, should those produced by both sides be recognized as of common kindred, let it be inquired by the Vicinage,[146] which of them are the nearest to him; and, according as the inquiry turns out, let the Judgment be given. In a similar manner, if those produced by one party should[147] deny in any respect his relationship, or, if a question arise concerning it, every doubt of this nature shall be determined by the Vicinage. The freedom having been sufficiently proved in Court, then, the party whose liberty has been questioned shall be absolved from the claim of him who would draw him to Villenage, and for ever freed from it. If, however, he should fail in his proof, or, if he should be recovered by his Adversary as his Villein-born, he shall be irrecoverably adjudged to belong to his Lord, together with all the Chattels he possesses. The same form and order are observed in pleading, when a freeman is claimed as a Villein, or when any one, in a state of Villenage, aspires of his own accord to freedom. For this purpose, the party whose freedom is impeached shall come to the King’s Court, and pray, that the suit might be removed into the same, which being conceded, the suit will then proceed in the form before stated. It must be remarked concerning this Plea, that the Duel cannot be resorted to, in order to prove the freedom of any one from his Birth.[148]
CHAP. V.
There are many modes by which a Man, in a state of Villenage, may acquire his freedom.[149] Thus if his Lord, being desirous of emancipating him, releases him, as well from all his own claims, as those of the Lord’s Heirs: or, if the Lord give or sell him to another, for the purpose of liberating him. It must, however, be observed, that no one in a state of Villenage can purchase his freedom with his own Money; for, in such case, he may, according to the Law and Custom of the Realm, be again recalled by his Lord to a state of Villenage, all the Chattels of a Villein-born being understood as so absolutely in the power of his Lord, as to preclude the former, at least with his own Money, and as against his Lord, from redeeming himself from Villenage. But, if a stranger with his own Money purchase the Villein’s freedom, the Villein may for ever after maintain his freedom against his Lord, who has sold him. When any one has released a Villein, from all right which he, or his Heirs, could claim in him, or has sold him to a stranger, the Villein who has been thus enfranchised may for ever after defend his freedom, as well against the Lord himself, as his Heirs; whilst he can prove the fact in Court, either by a Charter, or by any other lawful means. And the question may even be decided by the Duel, if any one deny, that the party has been liberated from his state of Villenage, and, there be a proper Witness, who, having both seen and heard the very fact of Enfranchisement, is ready to prove his freedom in Court.
It should here be remarked, that a man may enfranchise his Villein-born, so far as the consequences affect the persons of himself, or his Heirs, but not as they apply to others. Because, if a man born a Villein, but thus rendered free, should be produced in Court, to make proof against a stranger, or to wage his Law, he may be justly precluded, if it be objected against him, and proved in Court, that he was born in a state of Villenage, although his condition was such that he had been Knighted subsequently to his being enfranchised.[150] If a Villein-born peaceably remain during a year and a day[151] in any privileged Town[152] so that he be received in their community or Guild[153] as a Citizen, he shall from such circumstance be freed from Villenage.
CHAP. VI.
Villeins-born are such from their Birth. Thus, if both the parents are Villeins-born, the Offspring is a Villein-born.[154] The same may be said where the Father is free but the Mother a Villein-born. If, however, the Mother be free, and the Father a Villein-born, the same rule prevails, as far as the purity of Condition be in question.
If a freeman take to wife a woman born in Villenage, whilst he so continues bound to the state of Villenage, he shall as a consequence lose his Law, as if he himself were a Villein-born.[155] If there be any children resulting from the connection of a Woman born in Villenage belonging to one person, and a Man born in that state belonging to another, the children shall be proportionably divided between the two Lords.[156]