vill2-第5章
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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 way； that the legitimate child of a free man and a nief born in villainage takes after the mother。* It is not difficult to see why the Roman rule did not fit； it was too plain for a state of things which had to be considered from three different sides。* The Roman lawyer merely looked to the question of status and decided it on the ground of material demonstrability of origin；* if such an expression may be used。 The Medieval lawyer had the Christian sanctification of marriage to reckon with； and so the one old rule had to be broken up into two rules…one applicable to legitimate children； the other to bastards。 In case of bastardy the tendency was decidedly in favour of retaining the Roman rule； equally suiting animals and slaves； and the later theory embodied in Littleton belongs already to the development of modern ideas in favour of liberty。* In case of legitimacy the recognition of marriage led to the recognition of the family and indirectly to the closer connexion with the father as the head of the family。 In addition to this a third element comes in； which may be called properly feudal。 The action of the father…rule is modified by the influence of territorial subjection。 The marriage of a free man with a nief may be considered from a special point of view； if； as the feudal phraseology goes； he enters to her into her villainage。* By this fact the free man puts his child under the sway of the lord； to whose villainage the mother belongs。 It is not the character of the tenement itself which is important in this case； but the fact of subjection to a territorial lord； whose interest it is to retain a dependant's progeny in a state of dependency。 The whole system is historically important； because it illustrates the working of one of the chief ingredients of villainage； an ingredient entirely absent from ancient slavery； whereas medieval villainage depends primarily on subjection to the territorial power of the lord。 Once more we are shown the practical importance of the manorial system in fashioning the state of the peasantry。 Generally a villain must be claimed with reference to a manor； in connexion with an unfree hearth； he is born in a nest；* which makes him a bondman。 The strict legal notion has to be modified to meet the emergency； and villainage； instead of indicating complete personal subjection； comes to mean subjection to a territorial lord。 This same territorial element not only influences the status of the issue of a marriage； it also affects the status of the parties to a marriage； when those parties are of unequal condition。 Most notable is the case of the free wife of a villain husband lapsing into servitude； when she enters the villain tenement of her consort； her servitude endures as long as her husband is in the lord's power； as long as he is alive and not enfranchised。 The judicial practice of the thirteenth century gives a great number of cases where the tribunals refuse to vindicate the rights of women entangled in villainage by a mesalliance。* Such subjection is not absolute； however。 The courts make a distinction between acquiring possession and retaining it。 The same woman who will be refused a portion of her father's inheritance because she has married a serf； has the assize of novel disseisin against any person trying to oust her from a tenement of which she had been seised before her marriage。* The conditional disabilities of the free woman are not directly determined by the holding which she has entered； but by her marital subordination to an unfree husband （'sub virga；' Bract。 Note…book； pl。 1685）； For this reason the position of a free husband towards the villainage of his wife a nief is not exactly parallel。 He is only subject to the general rules as to free men holding in villainage。* In any case； however； the instances which we have been discussing afford good illustrations of the fact； that villainage by no means flows from the simple source of personal subjection； it is largely influenced by the Christian organisation of the family and by the feudal mixture of rights of property and sovereignty embodied in the manorial system。 There are two other ways of becoming a villain besides being born to the condition； the acknowledgment of unfree status in a cou
