Bracton: Thorne Edition: English. Volume 3, Page 150

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Volume 3, Page 150

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When a conviction lies and when not.

[002] ¹In order to know when a conviction lies and when it does not, we must see whether
[003] the assise is taken in the manner of an assise or in that of a jury: in the manner of an
[004] assise, as where, after the plaintiff's intentio has been supported, the tenant at once
[005] puts himself on the assise without raising any exception, answers the plaintiff's claim
[006] by saying that he did not disseise him and as to that puts himself on the assise, and
[007] the jurors say simply that he did not disseise him (or that he disseised him) without
[008] adding any reason, ²[If they speak falsely, whether in the principal matter and the
[009] things which touch the action and the assise, or in those which touch exceptions,
[010] unless reasonable and understandable error excuses them,³ they may be convicted:
[011] in those which touch the assise, as where they say that he disseised him wrongfully
[012] when he did not, or conversely, or that the tenant disseised the plaintiff of a free
[013] tenement when he held a villeinage,⁴ or conversely, and the like, or if they say something
[014] which touches an exception, not the action or the assise, not simply but with
[015] the addition of a reason, thus, that the plaintiff could not be disseised of a free tenement
[016] because he is a villein and holds in villeinage, when he is free and holds freely,
[017] or conversely.] if the plaintiff can afterwards show the contrary, the jurors are to
[018] be convicted⁵ of perjury, because the assise is taken in the manner of an assise, not
[019] of a jury. But if, after the plaintiff's plaint has been put forward, the tenant answers
[020] that he could not be disseised of a free tenement because he is a villein and held in
[021] villeinage, and the plaintiff says simply that he is not, without any replication, since
[022] the matter is put in doubt by the denial the tenant must prove the exception, by
[023] kindred (whom he ought to produce at once, if he can, or at a future day)⁶ or by the
[024] assise, but whether by kindred or the assise, since he puts himself on the assise to be
[025] taken in the manner of a jury, the jurors are not to be convicted, whether they find for
[026] one party or the other, because this is the proof of an exception by a jury rather than
[027] the taking of an assise by an assise.⁷ Nor will what they say, whether it is true or false,
[028] be prejudicial to the plaintiff in an action on status.⁸ Here proof falls on the tenant,
[029] but suppose that the plaintiff answers in this way to the exception that he is a villein,
[030] saying by way of replication that he is free. Proof still falls on the tenant,⁹ and if he
[031] proves it in some way let the plaintiff prove the contrary, if he can, by stronger proof,
[032] by way of replication, the exception being, so to speak, void. If there are no kindred
[033] who may be produced on either side, recourse must of necessity be had to the assise,
[034] that the matter be determined in the manner of a jury,

Notes

1. Infra 339

2. New sentence

3. Infra 341

4. ‘villenagium’

5. ‘convincendi sunt,’ as below

6. Supra 106

7. Supra 143

8. Supra 90, 103, 105, 111, 112

9. Not if tenant is villein's lord and villein in his potestas: supra 112