Harvard Law School Library

Bracton Online -- English

Previous   Volume 3, Page 92  Next    

Go to Volume:      Page:    




[001] owner of the thing before he takes it into his hand;1 the assise will lie for the villein
[002] against all, notwithstanding the exception of villeinage, except against his lord in
[003] whose potestas he is.2 But if he acquires to the use of [his] lords and in their names, one
[004] or several, or for one of several, the assise lies for those in whose name he acquires,
[005] because they are in possession by the villein's act though they have not formally taken
[006] it into their hand.3 If the exception of villeinage is raised by a tenant in this way, that
[007] the plaintiff cannot bring the assise because he is a villein and the son of a villein, both
[008] may be true and the assise will fall, or the plaintiff may have a lawful replication
[009] against that exception,4 as to both or one or neither, [but] the assise will not fall
[010] if the plaintiff does not replicate or except because he has neither, neither exception
[011] nor replication, because he is a villein established within the potestas of his lord, born
[012] of a villein and a neif of that same lord, and similarly his father, and so if he does
[013] replicate or except, the truth will be declared by the assise, and according to that he
[014] will have the assise5 or will not. If the assise finds against him, he falls from both. It
[015] may be that he falls from one and not the other, because it may well be that he is
[016] a villein and his father a villein, but that he has an exception for himself, perhaps
[017] the privilege, and thus may defend himself6 against the exception. Or that he is
[018] free and his father a villein, because he was born of a free mother not married to
[019] his villein father, in which case he ought to follow the condition of his mother.7
[020] And conversely, it may be that he is a villein and his father free, because he was
[021] born of a villein mother and a free man joined in matrimony or in a marriage-like
[022] union, in which case he follows the condition of his mother, especially if the free man
[023] entered into a villeinage to the neif;8 it will be otherwise if he was born outside the
[024] villeinage, because the bed of a free husband makes her free during her husband's
[025] life,9 and because if he were claimed into servitude he could defend himself against the
[026] exception of villeinage by the replication of a free bed.10 If villeinage is objected in
[027] this way, that he is a villein because his father was a villein, we must then inquire
[028] whether there was a marriage or not, as was said above, and in what status his father
[029] died, whether in a free status, that is, so that he could not be claimed without writ,
[030] though a villein, as a fugitive,11 or in a servile status, a free man or another established
[031] or held in the potestas of another, and according to such status the exception of
[032] villeinage must be decided, unless the father's status is changed in the son. But it
[033] could be objected that the status of a deceased person cannot be litigated after his
[034] death, whether he is free or a bastard. It is true that one cannot sue



Notes

1. D. 41.2.1.20; supra ii, 87

2. Supra 89

3. Inst. 2.9.3; supra ii, 87, 88, 136

4. ‘ille querens . . . replicationem,’ from lines 9-10

5. ‘assisam’

6. ‘possit se defendere’ for ‘per hoc se defendit’

7. Supra ii, 30, infra 94

8. Supra ii, 30

9. Infra 363

10. Infra 94

11. ‘quamvis servus ut fugitivus’


Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College