Note e — Chapter VIII · (continued 4)

Gurdon, on Courts Baron, p. 592, supposes the villein in gross to have been the Lazzus or Servus of early times, a domestic serf, and of an inferior species to the cultivator, or villein regardant. Unluckily Bracton and Littleton do not confirm this notion, which would be convenient enough; for in Domesday Book there is a marked distinction between the Servi and Villani. Blackstone expresses himself inaccurately when he says the villein in gross was annexed to the person of the lord, and transferable by deed from one owner to another. By this means indeed a villein regardant would become a villein in gross, but all villeins were alike liable to be sold by their owners. Littleton, sect. 181. Blomefield's Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that villeins in gross were never numerous (Case of Somerset, Howell's State Trials, vol. xx. p. 42): drawing this inference from the few cases relative to them that occur in the Year-books. And certainly the form of a writ de nativitate probandâ, and the peculiar evidence it required, which may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s argument, are only applicable to the other species. It is a doubtful point whether a freeman could, in contemplation of law, become a villein in gross; though his confession in a court of record, upon a suit already commenced (for this was requisite), would estop him from claiming his liberty; and hence Bracton speaks of this proceeding as a mode by which a freeman might fall into servitude.