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
The coincidence in all these points against the party maintaining
servitude is by no means casual; the courts proclaimed their leaning 'in
favour of liberty' quite openly, and followed it in many instances
besides those just quoted. It was held, for instance, that in defending
liberty every means ought to be admitted. The counsel pleading for it
sometimes set up two or three pleas against his adversary and declined
to narrow his contention, thus transgressing the rules against duplicity
of plea 'in favour of liberty[126].' In the case of a stranger settling
on the land, his liberty was always assumed, and the court declined to
construe any uncertainty of condition against him[127]. When villainage
was pleaded in bar against a person out of the power of the lord, the
special question was very often examined by a jury from the place where
the person excepted to had been lately resident, and not by a jury from
the country where he had been born[128]. This told against the lord, of
course, because the jurors might often have very vague notions as to the
previous condition of their new fellow-countryman[129].
It would be impossible to say in what particular cases this partiality
of the law is to be taken as a consequence of enlightened and
humanitarian views making towards the liberation of the servile class,
and in what cases it may be traced to the fact that an original element
of freedom had been attracted into the constitution of villainage and
was influencing its legal development despite any general theory of a
servile character. There is this to be noticed in any case, that most of
the limitations we have been speaking of are found in full work at the
very time when villainage was treated as slavery in the books. One
feature, perhaps the most important of all, is certainly not dependent
on any progress of ideas: however complete the lord's power over the
serf may have been, it was entirely bound up with the manorial
organisation. As soon as the villain had got out of its boundaries he
was regularly treated as a free man and protected in the enjoyment of
liberty so long as his servile status had not been proved[130]. Such
protection was a legal necessity, a necessary complement to the warranty
offered by the state to its real free men. There could be no question of
allowing the lord to seize on any person whom he thought fit to claim as
his serf. And, again, if the political power inherent in the manor gave
the lord _A_ great privileges and immunities as to the people living
under his sway, this same manorial power began to tell against him as
soon as such people had got under the sway of lord _B_ or within the
privileged town _C_. The dependant could be effectually coerced only if
he got back to his unfree nest again or through the means of such
kinsfolk as he had left in the unfree nest[131]. And so the settlement
of disputed rights connected with status brings home forcibly two
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