them in fetters and in the stocks, may imprison, beat and chastise them at will, saving their lives and limbs.” If legal slavery perished in medieval England, then, human bondage involving physical and psychological coercion, as well as other traditional characteristics of unfreedom, persisted.41
Although some observers continued to emphasize distinctions between the originally free villeins and the serfs who descended from slaves, these subtleties became increasingly irrelevant as the customary exactions of legal unfreedom were applied to both groups in the late medieval period. Even in Horn’s lifetime, English lords expected villeins to labor on their behalf, pay death duties (heriot), pay their lords upon the marriage of a son or daughter (merchet), pay for permission to sell livestock (toll), and pay an annual tax (arbitrary tallage). English lords treated villeins and serfs equally as chattel. Lords, or masters, could even exercise the customary prerogative common to all slave cultures of selling their bondmen. Certainly, some villeins benefited from protective rights that prevented them from lapsing into a state of categorical slavery. Despite the common-law notion that the property of bondmen was ultimately the lord’s property, many villeins also acquired their own property and defended it in their own name, according to the medieval doctrine of possession.42 Still, their legal status placed them in a precarious position and there was often little they could do to protect themselves from persistent or opprobrious lords.
Technically, villeins were not slaves, but many of those who remained in the archaic condition seem to have believed there was little in their status to distinguish them from that lowliest of conditions. Bondmen and their sympathizers were quite vocal about the abuses they suffered and repeatedly pointed out the problem of reconciling the rights of freeborn Englishmen with the rights of English lords over their human property. In the fourteenth century, Geoffrey Chaucer asserted in the homily of the Parson’s Tale that bondage was not a natural condition and condemned those who “taken they of hire bond-men amercimentz [i.e., a discretionary penalty or fine], whiche myghten moore resonably be cleped extorcions than amercimentz. Of which amercimentz and raunsonynge of boonde-men somme lordes stywardes seyn that it is rightful, for as muche as a cherl hath no termporeel thing that it ne is his lordes.”43 John Fitzherbert reiterated this point in 1523 when he mentioned that despite manumissions, “in some places bondemen conynue as yet.” Worse, he continued, “there be many freman taken as bondmen, and their lands and goodes taken from them so that they shal nat be able to sue for remedy, to prove them selfe fre of blode.” Fortunately, for sixteenth-century bondmen, Tudor monarchs generally sympathized with villeins and several blanket manumissions were issued during the era as the Crown sought to clear the landscape of the remnants of a system of perpetual and inheritable bondage.44
Precisely because of the perception that there was a relationship between villeinage and slavery, aggrieved Englishmen, many of whom found themselves subject to the whims of others because of their tainted bloodlines, were able to find recourse to justice in the Court of Common Requests, a body that was frequently referred to as the “Court of Poor Men’s Cases.” In Netheway v. Gorge (1534) the Court of Requests was confronted with a case that exemplified the plight of bondmen who, according to tradition, had no right to personal property. Sir Edward Gorge, lord of the manor of Walton in Somersetshire, dispatched an agent to purchase an ox from the plaintiff, William Netheway. Gorge’s agent agreed to pay 29s. for the ox, but when Netheway demanded payment the money was withheld. Gorge informed the court that the plaintiff was his bondman and, therefore, the ox was already his property. The court conceded the legitimacy of this claim, but it also recognized that public opinion forbade the enforcement of the dated notions of villeinage. Thus, the royal commissioners pressured the defendant in this case to pay the full value of the disputed ox.45
In other words, although the government was clearly inclined to side with supposed bondmen, based in great part on the increasingly powerful notion of the presumptive freedom of Englishmen, the continuing legitimacy of villeinage under the law allowed for abuses during the Tudor era. In 1535, John Bourchier, who would become the first Earl of Bath a year later, seized goods valued at £400 from a man named Burde. Bourchier made no pretense of purchase in this case; as in the case of Netheway v. Gorge, this was just another example of the legal spoilation of a purported bondman. In response, then, Burde petitioned the Council of the West in 1539, which ordered the restitution of the disputed goods. The first Earl of Bath had died the previous year, but his son took up the fight by not only disregarding the order but also seizing additional items in October 1540. Eventually the plaintiff petitioned King Henry VIII directly and in February 1541 the order to pay for the seized items was endorsed by a writ of Privy Seal from Hampton Court. Still, the earl refused to comply until the threat of a fine prompted him to restore the goods in 1544. Even so, in the less assured political climate following Henry’s death in 1547 and the subsequent downfall of Protector Somerset in 1549, the earl once again seized horses and cattle from Burde. In this last instance, before the records fall silent, the Earl of Bath defended his actions by emphasizing that he and his father had been within their rights all along because the ancestor who had enfranchised Burde’s ancestor had exceeded his legal right—he could actually only liberate for the term of his own life; upon his death, though, the subsequent Earls of Bath could legally reclaim the family’s legacy.46
The Bourchier family was not the first to claim that the manumissions of a previous generation were nonbinding. In the case of Carter v. the Abbot of Malmesbury in 1500, the plaintiff complained to the Court of the Star Chamber that he could not be held against his will because his grandfather had been liberated. The Abbot of Malmesbury, who seized Carter, threw him in prison, and confiscated his substantial holdings in sheep and cattle, defended his actions by claiming that Carter was not free man but a “vylleyne and bondman regardaunt.” Carter, however, produced witnesses to corroborate his claim he had been treated cruelly and that his grandfather had been manumitted. Although the records again fall silent, it seems likely that Carter succeeded in passing the litmus test of descent. Without absolute proof that the ancestors of the person claimed were villeins, no English lord could hold an individual in bondage. Even if servile linkage was established, the maternal line of descent was disallowed and only one male was considered insufficient evidence. At the same time, one free male progenitor typically cleared an entire family of the stain of bondage. In effect, the burden of proving whether an individual was bound or free was increasingly falling in the hands of the lords. The presumption of freedom was clearly ascendant in sixteenth-century England.47
The language used by the Abbot of Malmesbury reveals an important distinction concerning the present condition of bondmen in Tudor England. Legal differentiation among different kinds of bondmen that had existed in the past furthered the widespread notion that there were no slaves in England by the sixteenth century. Most, if not all, slaves had in fact been manumitted, or enserfed, nearly four centuries earlier and few people remained in an actual state of either serfdom or villeinage. Nonetheless, some English writers were careful to specify the precise nature of the bondmen that could be found in Tudor society. Sir Thomas Smith, Queen Elizabeth’s occasional ambassador to France and Secretary of State in the 1570s, produced an entire chapter on the subject in his De Republia Anglorum. Smith declared that, according to Roman tradition, there were two kinds of bondmen, “one which were called servi, [who] were bought for money, taken in warre, left by succession, or purchased by other kinde and lawful acquisition, or else borne of their bonde women and called vernae.” Collectively, Smith noted, these people were known in England as “villeins in gross,” while the others were called “adscripticij glebae, or agri censii. These were not bond to the person, but to the mannor or place, and did followe him who had the manors. Those in our lawe are called villaines [regardants].” For the benefit of his continental audience, Smith claimed that he never encountered any of the first type in the realm, and of the second kind, “so few there be, that it is not almost worth the speaking. But our lawe doth acknowledge them in both those sorts.”48 Smith conceded, then, that slavery existed in England although only in a theoretical sense or as a legal artifact.
Although the distinction between two different legal categories of unfreedom
