Bracton: Thorne Edition: English. Volume 2, Page 30

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Volume 2, Page 30

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[001] they are free with respect to the jus naturale,¹ thus free and bond, but from different
[002] points of view, and so wholly free [or] wholly bond, not in part one and part the other,²
[003] as was said above. And in this connexion the civil law or the jus gentium detracts
[004] from natural law.³

What bondage is.

[006] ⁴‘Servitude is an institution of the jus gentium, by which, contrary to nature, one
[007] person is subjected to the dominion of another.’ It is called such from ‘conserving,’
[008] not ‘serving,’ for in ancient times it was the practice of princes to sell captives and
[009] thus preserve rather than destroy them. They may also be called mancipia, because
[010] they are taken from the enemy with the hand.⁵ That is why, when they are freed they
[011] are called⁶ ‘manumitti,’ released, so to speak, from the hand. Not every ‘servus,’
[012] however, is so called from ‘conserving,’ but from ‘serving,’ [and though] from
[013] ‘serving,’ not every one who serves is a ‘servus,’ as may be seen in the case of the
[014] tabellio,⁷ ⁸He is called a ‘servus publicus’ not from ‘conserving’ but from ‘serving.’⁹

Bondsmen are either born unfree or are made such; how they are born unfree.

[016] ¹⁰Bondsmen are either born or made such. They are born of a villein and a neif,
[017] married or unmarried, whether they are under the potestas of a lord or outside it.
[018] ¹¹[If he is born of the villein of one lord and the neif of another, we must then see
[019] in whose villeinage he was born, that we may know whose villein he ought to be.]¹²
[020] He is born a bondsman who is procreated of an unmarried neif though of a free
[021] father, for he follows the condition of his mother, as though conceived at large.
[022] Also he who is begotten of a free father who has connexion with a neif established
[023] in a villein tenement, whether they are married or not. Conversely, if a villein has
[024] connexion with a free woman in a free tenement, their offspring will be [free;¹³ if
[025] they are married or it is a villein tenement], bond, [for] whom the child must
[026] follow, the father or the mother, [depends] upon whether they are married or not,¹⁴
[027] and whether they are under the potestas of his lords or beyond it. If born of a free
[028] man and a neif out of wedlock, the child will be a villein, for he follows the condition
[029] of his mother, [even] if he is born outside the villein tenement, but if he is
[030] born of such persons in wedlock, outside the villeinage and in a free bed,¹⁵ he
[031] will be free, as though born of a free woman and a free man. And so persons are
[032] born bond.

How men are made bond.

[034] ¹⁶Free men are made bond by capture, by virtue of the jus gentium as was

Notes

1. Supra 27-8

2. Infra 86, iii, 101

3. Azo, Summa Inst. 1.3, no. 3

4. Br. and Azo, 45-6, 51

4-5. Azo, Summa Inst. 1.3, no. 4; for the place of this argument, Cortese, i, 82

6. ‘cum liberati postmodum dicuntur’

7. Accursius, gl. on v. ‘servare,’ Inst. 1.3.3: ‘Nota servum dici a servando, non a serviendo, secundum Isidorum; sed tabellio dicitur servus publicus a serviendo (D. 1.7.18) qui tamen servus esse non potest (C. 10.69.3).’

8-9. Azo, Summa Inst. 1.3, no. 3

10. Br. and Azo, 47

11-12. ‘Si autem ex nativo ... esse debeat,’ from lines 23-5

13. ‘servus’, all MSS.

14. Infra 31, iii, 92, iv, 331

15. Infra iii, 92, 94, 363

16. Br. and Azo, 47, 48, 50, 51