Villainage in England: Essays in English Mediaeval HistoryVinogradoff, Paul
History
Villainage in England: Essays in English Mediaeval History
Vinogradoff, Paul
Villeinage -- England -- History -- To 1500
of the British Museum, the Bodleian and the Cambridge
University Library[91]. I have no doubt that further verification will
only confirm my opinion. On my assumption Bracton clearly distinguishes
between two possibilities. In one case the deed simply binds the lord as
to a particular person, in the other it binds him in perpetuity; and in
this latter case, as there ought not to be any heirs of a bondman but
the lord, bondage is annihilated by the deed. It is not annihilated when
one person is granted a certain privilege as to a particular piece of
land, and in every other respect the grantee and all his descendants
remain unfree[92]:--he has no freehold, but he has a special covenant to
fall back upon. This seems to lie at the root of what Bracton calls
privileged villainage by covenant as distinguished from villain
socage[93].
[Legal practice as to conventions.]
The reader may well ask whether there are any traces of such an
institution in practice, as it is not likely that Bracton would have
indulged in mere theoretical disquisitions on such an important point.
Now it would be difficult to find very many instances in point; the line
between covenant and enfranchisement was so easily passed, and an
incautious step would have such unpleasant consequences for landlords,
that they kept as clear as possible of any deeds which might indirectly
destroy their claims as to the persons of their villains[94]. On the
other hand, even privileged serfs would have a great difficulty in
vindicating their rights on the basis of covenant if they remained at
the same time under the sway of the lord in general. The difficulties on
both sides explain why Fleta and Britton endorse only the chief point of
Bracton's doctrine, namely, the implied manumission, and do not put the
alternative as to a covenant when heirs are not mentioned. Still I have
come across some traces in legal practice[95] of contracts in the shape
of the one discussed. A very interesting case occurred in Norfolk in
1227, before Martin Pateshull himself. A certain Roger of Sufford gave a
piece of land to one of his villains, William Tailor, to hold freely by
free services, and when Roger died, his son and heir William of Sufford
confirmed the lease. When it pleased the lord afterwards to eject the
tenant, this latter actually brought an assize of novel disseisin and
recovered possession. Bracton's marginal note to the case runs thus:
'Note, that the son of a villain recovered by an assize of novel
disseisin a piece of land which his father had held in villainage,
because the lord of the villain by his charter gave it to the son [i.e.
to the plaintiff], even without manumission[96].' The court went in this
case even further than Bracton's treatise would have warranted: the
villain was considered as having the freehold, and an assize of novel
disseisin was granted; but although such a treatment of the case was
perhaps not altogether sound, the chief point on which the contention
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