here are circumstances which
materially distinguish it from slavery. The condition of villenage, at
least in later times, was perfectly relative; it formed no distinct
order in the political economy. No man was a villein in the eye of law,
unless his master claimed him: to all others he was a freeman, and might
acquire, dispose of, or sue for property without impediment. Hence Sir
E. Coke argues that villeins are included in the 29th article of Magna
Charta: "No freeman shall be disseised nor imprisoned."[399] For murder,
rape, or mutilation of his villein, the lord was indictable at the
king's suit; though not for assault or imprisonment, which were within
the sphere of his seignorial authority.[400]

This class was distinguished into villeins regardant, who had been
attached from time immemorial to a certain manor, and villeins in gross,
where such territorial prescription had never existed, or had been
broken. In the condition of these, whatever has been said by some
writers, I can find no manner of difference; the distinction was merely
technical, and affected only the mode of pleading.[401] The term in
gross is appropriated in our legal language to property held absolutely
and without reference to any other. Thus it is applied to rights of
advowson or of common, when possessed simply and not as incident to any
particular lands. And there can be no doubt that it was used in the same
sense for the possession of a villein.[402] But there was a class of
persons, sometimes inaccurately confounded with villeins, whom it is
more important to separate. Villenage had a double sense, as it related
to persons or to lands. As all men were free or villeins, so all lands
were held by a free or villein tenure. As a villein might be enfeoffed
of freeholds, though they lay at the mercy of his lord, so a freeman
might hold tenements in villenage. In this case his personal liberty
subsisted along with the burthens of territorial servitude. He was bound
to arbitrary service at the will of the lord, and he might by the same
will be at any moment dispossessed; for such was the condition of his
tenure. But his chattels were secure from seizure, his person from
injury, and he might leave the land whenever he pleased.[403]

From so disadvantageous a condition as this of villenage it may cause
some surprise that the peasantry of England should have ever emerged.
The law incapacitating a villein from acquiring property, placed, one
would im