Bracton: Thorne Edition: English. Volume 2, Page 85

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Volume 2, Page 85

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[001] or without it; [if without] a preceding grant of freedom, [then whether homage has
[002] been taken or not, and if it has not], then whether the gift is to the bondsman alone
[003] or to him and his heirs. If made by the lord within whose potestas he is with manumission,
[004] the gift is good, just as though made to any other person. [And so if] liberty
[005] has [not] been given, provided homage has been taken. ¹And so if [with a charter]
[006] and without express manumission, if the charter contains the words ‘to have and to
[007] hold freely, quietly and peacefully to him and his heirs’; though no homage is
[008] taken, it is implied and strongly presumed from these words that the donor wished
[009] the donee to be free.² [And so] whether it is with a charter or without one,³ and
[010] though there is [neither⁴ homage nor manumission], because, though the rule is that
[011] a bondsman cannot have a free tenement, he nevertheless is protected when in
[012] possession, [for] if his feoffor and lord claims, though at first sight he has an action
[013] the bondsman has an adequate exception against him,⁵ and if the lord, contrary
[014] to his own act, ejects him, and, when the bondsman sues,⁶ excepts his bondage
[015] against him, the bondsman has an adequate replication [based upon] the lord's act.⁷
[016] If the charter has only the words ‘to have and to hold to such a one (he being a
[017] bondsman) by free service,’ they do not make the bondsman free, [For it is one
[018] thing to hold by free service and a very different thing to hold freely,] for though
[019] he holds by free service he does not on that account hold freely, [because a tenement
[020] given to a villein to hold by free service does not make the villein free any more than a
[021] villeinage makes a free man a villein if he holds by villein customs,⁸ for a tenement
[022] neither adds to nor detracts from personal status,] unless, as was said, homage has
[023] been taken or manumission or the equivalent has occurred by the lord's grant, that
[024] is, that the villein hold ‘freely, quietly and by free service to him and his heirs.’
[025] Nor do they give him a free tenement,⁹ [and] if he is ejected, no matter by whom, he
[026] will not recover by the assise, for that is available to the lord, not the villein. But
[027] when it is his lord who ejects him, quaere whether he may sue against him on the
[028] agreement,¹⁰ to compel the lord to hold to his agreement, since prima facie he has
[029] no standing in court.¹¹ It is submitted that he may, because of his lord's act, as
[030] where he sues on the agreement and the lord excepts on the ground of villeinage
[031] he may found a replication on the lord's act, as said above with respect to a feoffment.
[032] The law ought not to help a lord against his own will,¹² and though he sustains
[033] damage no injuria is done him, because he once wished it.¹³ And since he prudently
[034] and wittingly entered into an agreement with his villein he tacitly renounced the
[035] exception of villeinage, nor may his ignorance save him

Notes

1-2. ‘Item si . . . donatum est,’ from lines 11-15

2. Infra iii, 39, 89, 90, 94, 106

3. ‘sive hoc . . . vel sine,’ from line 14

4. Reading: ‘et cum non interveniat’

5. Infra 136

6. By the assize: infra iii, 99, 100

7. Infra iii, 99, 100; the portion infra 86 n. 2 belongs here

8. Infra 89, iii, 39, 90

9. ‘Nec dant ei liberum tenementum,’ from line 17

10. Infra iii, 35, 90, 131-2

11. Infra 438

12. Infra iii, 131

13. D. 39.3.9.1: ‘nullam enim potest videri iniuriam accipere qui semel voluit.’