Bracton: Thorne Edition: English. Volume 2, Page 89

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Volume 2, Page 89

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[001] The lord therefore must first take cognizance of his status and deraign his body,¹
[002] that he may then have whatever follows the body, namely, sequela, as progeny,
[003] chattels and tenements, which he cannot do before. Indeed if he could do so why
[004] would chattels be included in the judgment on a writ de nativo habendo, that is,
[005] where status is put in question, for the writ says that the sheriff ‘cause such a one
[006] to have such a person, his fugitive villein, with his sequela and his chattels’?² And
[007] if before he had deraigned his body he had usurped to himself the villein's lands
[008] and chattels without judgment, when he claimed his villein by writ in an action
[009] on status the exception of disseisin would bar him, so that the demandant would
[010] never be heard before full restitution of chattels and tenements. [And that, as
[011] against his lord, a tenement may be included in the general term ‘chattels’ is
[012] evident, for it is out of the chattels of villeins, which ought to belong to their
[013] lords, that the tenements are bought.]³ Thus, since the exception of villeinage is
[014] not available to lords against those who are beyond their potestas, [that is], if a
[015] replication is made, a fortiori it is not available to those who have no right,⁴ in
[016] the villein or in the chattels. And as one may not disseise his own fugitive villein
[017] while he is in a free status (in such a way that he could not recover by the assise)
[018] before he has his body within his potestas, though he is claimed [as a villein], so free
[019] men, established within the potestas of lords as villeins, who may be termed statuservi,⁵
[020] cannot bring the assise if they have been disseised, nor, if they assert their
[021] liberty,⁶ recover before they have shown that they are free. There is more on this
[022] matter below [in the portion on] the assise of novel disseisin.⁷ ⁸A tenement changes
[023] the status of a free man no more than it does that of a villein.⁹ For a free man may
[024] hold a pure villeinage, doing whatever will pertain to such holding, and be no less
[025] free, since he does it by reason of the villeinage and not because of his person;¹⁰
[026] thus if he so wishes he may abandon the villeinage and depart free,¹¹ unless he is
[027] ensnared by the villein wife for whom he entered into the villeinage, who may raise
[028] an impediment.¹² ¹³A pure villeinage is one from which uncertain and indeterminate
[029] service is furnished,¹⁴ where one cannot know in the evening the service to
[030] be rendered in the morning,¹⁵ that is, where one is bound to do whatever he is bid.¹⁶
[031] ¹⁷A villein socage changes the status of a free man no more than does free socage
[032] ¹⁸because he makes the render by reason of the tenement, not of his person.¹⁹ But
[033] though he renders service certain from a villein socage he will not on that account
[034] have

Notes

1. Supra 37, infra 135, iii, 88, 102, 104, 105

2. Glanvill, xii, 11; infra iii, 86, 88, 104

3. Infra iii, 99, 100, 104, B.N.B., no. 1256 (coram rege 1238/9): ‘sicut terram emptam de catallis domini sui’

4. Supra 86, infra iii, 88

5. Supra 38

6. Supra 86, infra iii, 85; D. 40.13.1.1: ‘ad libertatem proclamare’

7. Infra iii, 84, 85, 89

8. New paragraph

9. Supra 85, infra iii, 39

10. Supra 37, 85, infra iii, 35, 39, 90, 107, 108, 131

11. Supra 37, infra iii, 90, 107, 131

12. Infra iii, 84, 92

13. A gloss on ‘purum villenagium,’ supra line 23

14. Infra iii, 109, 131

15. Infra iii, 131

16. Supra 37

17. New paragraph

18-19. ‘quia hoc facit ... ratione personae,’ from 90, line 1; reading ‘et’ for ‘licet’; supra n. 10