Posted by Sara M. Butler, 16 May 2025.

(NB: villein, naif, serf, bondman or -woman – these are all interchangeable terms.)

In my recent rereading of Mark Bailey’s The Decline of Serfdom in Late Medieval England, I was stopped in my tracks by a puzzling assertion: that the illegitimate child of a villein was no villein at all, because in England, “bastards were deemed to be free.” No explanation of why this was the case, or when the custom developed. And the footnote was supremely unhelpful: a reference to Larry Poos’ and Lloyd Bonfield’s Select Cases in Manorial Courts,in which they posit that “Perhaps because its kings ‘traced descent from a mighty bastard,’ the common law rejected the disabilities impressed upon illegitimates that obtained on the Continent.” [1]

Despite the nicety of the sentiment, the explanation sounds highly implausible (its hard to imagine the Conqueror feeling empathy for anyone). Nor did it jibe with my own reading of the Leges Henrici Primi, the early twelfth-century legal treatise, which, in speaking about the status of children, declares (quite memorably!), “Yet the calf is the mother’s, whosoever’s bull has sported with her.”[2]

Clearly I had work to do to figure out just what Bailey was talking about.

The Legal Treatises

As always, I began with the legal treatises. Because common law is unwritten, for the Middle Ages, the best place to start is always the legal treatises, written by English justices with the purpose of creating a handbook for practicing lawyers.

The treatises make clear that in England in the twelfth and early thirteenth centuries, a child born to an unmarried villein woman was absolutely NOT free, even if the child’s father was. Mixed marriage, that is, a union between a man and a woman of varying status, was a common “problem” for medieval lawyers, who felt the need to address it in intricate detail. Glanvill (c. 1187-89) puts forward a number of scenarios, all of them bleak. The offspring of a union of two villeins (either married or unmarried)? Definitely unfree. The offspring of a free man and an unfree woman? Also unfree. That of a free mother and an unfree father? Again, unfree. In fact, if a free man married an unfree woman, Glanvill tells us that the groom also lost his free status, “as if he himself were a Villein-born.”[3]

The following century saw a loosening up of the rules. The authors of Bracton (c. 1220s-60s) made clear that the English had adopted the Roman rule that the child “follows the condition of his mother.” The child of a free father and unfree mother, thus, is unfree; but the child of an unfree father and a free mother is free. Bracton includes the proviso that they must be married for this to be true. Presumably the treatise bears the fruit of the church’s campaign to transform marriage into an indissoluble union between two consenting individuals, regardless of the wishes or designs of parents or lords. This new ecclesiastical vision of marriage was to apply to all Christians: even the unfree now had “the right to marry.” Yet, it was not marriage, but the woman’s status that made all the difference. A free woman’s bastard child was free, while an unfree woman’s bastard child was unfree, like his or her mother. [4]

Late thirteenth-century legal treatises (all adaptations and abridgements of Bracton) are where we start to see some radical differences of opinion emerge. The Mirror of Justices (c. 1286-90) tows the Bractonian line: “And one who is begotten of a free man but born of a bondwoman out of wedlock is a serf.” Britton (c. 1291-2) takes a much more liberal approach. Freedom would seem to be a trait that either parent can pass down to their child, such that the child of a bondman and a free woman is free; so, too, is the child of a free man and a bondwoman. The author of Fleta (c. 1290-1300), somewhat unexpectedly, throws his weight behind the father: the child of a free man married to a naif will be free; the child of an unfree man married to a free woman is not. But there is still no statement to suggest that all bastards are born free. When it comes to the bastard child of an unfree woman, we are told the child “belongs to the lord of the manor, for his condition is determined by that of his mother, by whomsoever he may be begotten, freeman or serf.”[5]

What is most striking about Fleta, however, is the author’s insistence that in situations where “jurors do not in truth know whether [a person] is a villein or a free man, judgement must be in favour of freedom.” The author of Britton offers up an equally thought-provoking statement when he writes that the “blood of a man” should not be tried “by means of women.” Is there a chance that these two ideas are connected? [6]

I would argue that it is in these two statements, when taken together, that we see the glimmer of the origins of the common law rule that all bastards are free. Here’s the problem: the only person who can definitively prove that a bastard child’s father is free is the mother: she knows who she slept with and when. Granted, it surely comes as no surprise to anyone who studies the Middle Ages that by the late thirteenth century authorities were not keen to rely on a woman’s word alone, especially if it meant that a man might lose his freedom, or that an elite man would lose the profits associated with a villein and his entire line.

Did justices decide to declare all bastards free because they didn’t want to have to rely on the word of a woman?

Naifty Trials & Suit of Kin

There were not many circumstances in which the legal status of a medieval man or woman was in question, but a lord hoping to lay claim to a fugitive villein had to be able to prove not only that the individual in question was a naif, but that he was also the claimant’s naif. He did this by purchasing a writ de nativo habendo (writ of naifty), which ordered the sheriff to bring the alleged naif before the county court to respond to the plaintiff. Of course, the defendant was only required to respond if the plaintiff proved his claim through suit of kin, meaning, the plaintiff needed to bring members of the alleged naif’s family to court to have them confess their unfree status and point to the claimant as their lord. The implication, of course, was that if the defendant’s family was unfree, so, too, was the defendant.

Granted, as we see in both the plea rolls and the Year Books, in practice, suit of kin was not so easy to prove. When William of Cressy appeared before the county court of York in 1280 in the hopes of “reclaiming” William son of Siward as his naif, he presumably thought he had more than sufficient evidence. He began by declaring that his father, Roger, had been seised of Siward, the alleged naif’s father, “as of fee and right in time of peace”; that he had taken esplees from him (that is, profits from the produce of the lands); that he had made Siward his reeve; taken “merchet for the marriage of his sons and daughters”; demanded tallages “high and low and at his will,” as well as “other villein services,” all to the value of a half a mark. This right had been inherited by William of Cressy as his father’s heir and had continued with Siward’s son, William, who also paid esplees, etc. to William of Cressy.[7]

The purpose of this extensive declaration was to establish a number of points:

1. William son of Siward came from a line of unfree men;
2. William of Cressy’s father owned Siward, just as William of Cressy owned Siward’s son;
3. proof of unfreedom lay firmly in seigniorial appointments and the payment of seigniorial aids, paid by both father and son to William of Cressy and his father.  

Next, the claimant produced a grouping of men purportedly related to the defendant:

• Harry, the defendant’s nephew through his brother (Robert);
• Richard, the defendant’s cousin through his father’s brother (Robert);
• William, the defendant’s second cousin, grandson to his father’s brother (Hugh);
• and Nigel, Gregory, and Robert, all sons of his father’s sister (Denise).

The claimant affirmed that all were unfree and in his legal possession.

William son of Siward and his defense team had no trouble challenging the validity of the kin to prove his status.

• Richard should not be admitted as proof because his father (Robert) was still alive and not present: clearly, the older more direct ties are the more definitive.
• William should not be admitted because he was a bastard, born during the widowhood of his mother, and thus free.
• Nigel, Gregory, and Robert were also inadmissible as proof because their mother, Denise, married a free man, thus, they, too, were free.
• Harry was all that remained of the claimant’s suit of kin, but so the Latin maxim goes, “the testimony of a single person is as the testimony of no one” (unus testis, nullus testis).

The integrity of his proof obliterated, William of Cressy asked for an inquest by the neighborhood, and unfortunately, the results were not recorded.

William of Cressy chose only male kin from the paternal line to prove his case. It would seem that this was a deliberate choice to adhere to the emerging distrust of women voiced in Britton. The plea rolls offer indications of this sentiment as far back as 1271/2. At the Lincolnshire eyre of that year, Richard and Adam, the sons of Walter the Carpenter, questioned whether their sister and aunt were inadmissible as suit of kin “since they are women.” The definitive statement was pronounced by one of the king’s justices just a few years later. In 1279, when Thomas Bowman laid claim to Ralph Lamplugh as his naif, Ralph refused to respond because Thomas brought as suit one man and two women, to which the judge replied:

No woman should be received in proof except in a marriage case. Thus there remains as suit only a single man. And one voice is the same as no voice.

Ralph and his heirs were declared free in perpetuity. [8]

If all women were inadmissible, as were (apparently) maternal kin, then the odds were truly stacked against lords who had half as many potential witnesses to support their claim. This is the argument that John English hoped to make in 1268 before the justices at the Norfolk Eyre. He asserted that he should not have to make suit of kin at all, because

if someone had one hundred villeins and all fled from the land of their lord at the same time, so that none of their kin remained with the lord, when the lord wished to bring action against these fugitives his action would fail because he could not produce suit, as all had fled together.

But John’s argument fell flat: some form of proof was necessary to reduce a man to villeinage. Justice Mettingham replied passionately to the claimant:

free law is more predisposed to save and maintain a man in his free estate than to condemn him or lead him into servitude and so, since you say that he is your villein and he says he is free, the law acts and we ought rather to act to save him and support him in his free estate than to maintain you in this to bring him back and reduce him to servitude, for it is clear that he is free until you have proved him the reverse by his blood.

Richard de Esthere, John’s alleged naif, was to go free in perpetuity, while John was to be amerced twenty pounds for a false claim.[9]

But what about the Bastards?

Paul Hyams has argued that the common law rule that “all bastards are free” dates to the second quarter of the fourteenth century, specifically that it emerged as the result of pleading in a case that appears in the Year Books for 1326, in which Thomas son of Thomas the Elder hoped to claim Richard Lachebere as his naif. When faced with three of his family members, all of whom were unfree and under Thomas’s authority, Richard said that they did not share the same blood because “he was a bastard and thus free.” The erudite Justice John Stonor hoped to explain to those gathered in court exactly why that was the case. Because Richard was a bastard, “he had estranged himself from every blood, so that he could not be proven a villein by any blood.” Or, as Paul Hyams has translated it, a naif must be proven by common stock, but “a bastard has no kin of the same stock except his mother.” Rather than rely on the word of a woman, it was simply easier to presume freedom.[10]

Conclusion

The 1326 case earmarked by Hyams produced a foundational discussion (much longer than what I’ve reproduced here) of why all bastards should be free in common law. Nonetheless, the rule clearly originates much earlier than that. In the 1280 case above, William son of Siward felt comfortable enough to declare that because his cousin (also named William) was a bastard he was free – and justices saw that statement as important enough to include in both the trial records and the Year Books, which were used to instruct future generations of common lawyers.

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[1] Mark Bailey, The Decline of Serfdom in Late Medieval England (Woodbridge, 2014), 41; L.R. Poos and Lloyd Bonfield, eds, Select Cases in Manorial Courts 1250-1550: Property and Family Law (Selden Society, vol. 114, 1997), clxxxiv.

[2] Leges Henrici Primi, ed. L.J. Downer (Oxford, 1972), 243 (no. 77, 2a).

[3] A Translation of Glanville, ed. John Beames (Washington, D.C., 1900), 91.

[4] Michael Sheehan, “Theory and Practice: Marriage of the Unfree and the Poor in Medieval Society,” in Marriage, Family, and Law in Medieval Europe: Collected Studies, ed. James K. Farge (Toronto, 1996), 227; this is stated clearly in the mid-13^th century Brevia Placitata: “E si un vilein engendre un fiz sur une fraunche femme hors de matrimoyne, le fiz remeint fraunc.” G.J. Turner and T.F.T. Plucknett, eds., Brevia Placitata (Selden Society, vol. 66, 1947), 214; Henri de Bracton, On the Laws and Customs of England, ed. G. Woodbine and S. Thorne (Cambridge, MA, 1968), vol. 2, 30.

[5] The Mirror of Justices, ed. W.J. Whittaker (Selden Society, vol. 7, 1893), 77; Britton: An English Translation and Notes, ed. F.M. Nichols (Washington, D.C., 1901), 162-63; Fleta, ed. H.G. Richardson and G.O. Sayles (Selden Society, vol. 72, 1953), vol. 1, 13-14.

[6] Fleta, ed. H.G. Richardson and G.O. Sayles (Selden Society, vol. 89, 1972), vol. 3, 76; Britton, 171.

[7] William de Cressy v. William Siward, in Paul A. Brand, The Earliest English Law Reports (Selden Society, vol. 122, 2005), vol. 3, 73-76. This case appears also in William Craddock Bolland, ed., Year Books of Edward II, Vol. 12: 5 Edward II (1312) (Selden Society, vol. 33, 1916), 121-123; and David J. Seipp, ed., “Seipp’s Abridgement,” (Boston University School of Law), 1280.002ss and 1312.116ss.

[8] TNA JUST 1/483, m. 3, Christiana widow of Alan de Belesby v. Richard and Adam, sons of Walter le Charpenter; mentioned in Paul R. Hyams, “The Proof of Villein Status in the Common Law,” The English Historical Review 89.353 (1974), 729. This case also appears in William Page, ed., Three Early Assize Rolls for the County of Northumberland (Surtees Society, vol. 88, 1891), 274-75; Brand, Earliest English Law Reports, vol. 3, 67-70; also Seipp 1279.005ss.

[9] Brand, Earliest English Law Reports, vol. 3, 24-33; Seipp 1268.009ss.

[10] Hyams, “Proof of Villein Status,” 746; YB 19 Edw II, ff. 651-2, Seipp 1326.008.