3.2.1 The Final End of English Villeinage and the Favor Libertatis of the Common Law

When we discussed villeinage in the previous chapter, we noted that its demise had set in by the second half of the fourteenth century. Villeinage, which was strongly linked to the manorial system of labour rents, became less relevant due to the increased labour mobility and the change towards a regime of wage labour.

The best-known way, the same as in Roman slave law, was through manumission of the villein by the master. This was well established by both Glanvill and Bracton, and the difference in opinion as concerns the result of a manumission between these two authors has already been discussed.¹⁰ This was a popular means of enfranchisement, as manumitting villeins was an easy way for cash-strapped lords to make some money.¹¹ Next to this explicit means of manumission, the law also inferred manumission through several actions: if the lord vested ownership of land in the villein, if he received homage from him, if the villein was part of a civil jury, if an action was brought by the villein against the master before a court and the master did not plead the exception of villeinage, etc.¹² Thus, an imprudent lord was always at risk of losing his villeins.

Second, both Glanvill and Bracton (and subsequent writers) referred to exceptions that made it impossible for the lord to claim their villeins. Glanvill mentioned that the villein who resided for a year and a day in a privileged town and was admitted as a citizen into its commune (the gild) became free.¹³ Likewise, Bracton said that residence in a privileged city or the royal demesne for a year and a day without claim could be used as an exception against a lord who tried to claim his former villein in court.¹⁴ Holdsworth summarised this by stating that a man who had lived in a borough or the king’s demesne for a year and a day became free according to medieval common law, unless the man himself acknowledged the lord’s right by paying the so-called chevagium.¹⁵ The principle could also often be found in town charters, which was probably an importation from Norman practice, and which subsequently came to be known as the maxim “town air makes free”.¹⁶ However, not all town charters mentioned the principle, and some town charters would also include limitations to it, such as the fact that it would only apply during peacetime, that the villein had to become a permanent member of the local guild, had to pay a sum of money to the guild, etc.

Finally, the common law system as a whole also played its role in the disappearance of villeinage. First, English lawyers proudly asserted that the English common law had a “favor libertatis”, meaning that in cases of doubt as concerns personal status, judges would decide in favour of the liberty of the alleged villein.¹⁸ The principle was first asserted by Glanvill. He turned to it to explain certain anomalies in the law of villeinage, and also when he opined what a jury had to decide when faced with uncertainty as concerns the status of a purported villein.¹⁹ That is not to say that it was proof of some innate humane tendency of the common law, as the principle was probably primarily intended to protect freemen against wrongful accusations of villein status, which would make them subject to the harsh laws of villeinage.²⁰ In any case, whereas Glanvill simply used the principle of “favour libertatis” to explain certain narrow legal questions, subsequent generations of lawyers would try to elevate it to a general principle of the common law of villeinage. It seems to have obtained this status by the fourteenth century.²¹

It did not end there. The aforementioned action of neifty had long been considered burdensome, with its antiquated requirement of proof by kin. Royal courts now started to allow (and later on even gave extra procedural benefits to) villeins to bring other actions against their lord as well. Examples are an action for trespass against the lord for lying in wait and threatening to seize the plaintiff as a villein, or trespass vi et armis in cases where the purported villein had effectively been seized in the past.²² If this was done, the defendant (the lord) would automatically plead the exception of villeinage, lest his villein would be manumitted.

The common law courts sometimes even went further in allowing a plaintiff to prove his freedom: when the defendant would plead the exception of villeinage, some plaintiffs would allege they were bastards. As villeinage passed through the male line, bastardy would bar them from villeinage. In such cases, bastardy certificates would have to be produced by the bishop of the diocese of the alleged bastard birth. It seems that certain dioceses (Norwich being a notorious example) were not disposed against producing untruthful certificates.²⁴

All these reasons help to explain why, by the beginning of the Tudor era (1485–1603), villeins had disappeared as an identifiable social class. But that is not to say that there were no more villeins at all, or that the institution itself was abrogated by English law. Alexander Savine and Diarmaid MacCulloch have gathered evidence from surveys, court rolls, official correspondence and legal proceedings to conclude that, at the beginning of the Tudor era, well over 400 manors still retained villeins. At the start of the rule of Elizabeth I, about 100 or so still had them.²⁵ The villeins that remained were often either very poor or very rich. The former did not have any money to pay for their manumission; the latter were the ones the lord often preferred to extort with the financial dues that his status entitled him to, rather than manumit them.²⁶

Over time, most of these villeins were freed as well, as enfranchisement remained an easy means to collect money. Quite often, the crown gave commissions to some of its courtiers to enfranchise a number of villeins on the royal demesne.²⁷ Although the House of Lords once discussed a bill De manumissione servorum vulgariter dictorum bondmen, a bill of general enfranchisement never passed Parliament.²⁸ The last case of villeinage that came before one of the central common law courts dates from the beginning of the seventeenth century; however, common law has always acknowledged, even up to today, the institution of villeinage. Villeinage thus theoretically still exists in English common law, and as Baker notes there are probably, theoretically speaking, quite a few “unwitting villeins breathing English air” left.²⁹

However, after the Elizabethan era at the latest, this did not have any practical significance anymore, given that the few villeins left had simply ceased to be of any relevance to their masters. Villeinage thus became an empty shell, an institution without any subjects left to govern.