Bracton: Thorne Edition: English. Volume 3, Page 101

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Volume 3, Page 101

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[001] his proper lord had done [would be rightful, since] the exception of villeinage would
[002] lie for him. But when the exception that the villein does not have the action or assise
[003] is raised by a non-lord stranger, he must say more, that it is for this reason, because he
[004] [is a villein and] holds in villeinage, and thus the action lies for the lord and not the
[005] villein,¹ and hence if the tenement was the free tenement of the villein, we must see
[006] whether the lord has or has not taken it into his hands before the assise.> If the villein
[007] is in seisin in the name of another, the assise does not lie for him but for the person in
[008] whose name he is in seisin, and thus the exception of villeinage will always bar him,
[009] because the action does not lie for him but for the lord.² The exception of villeinage
[010] always lies (when the villein is within the potestas of his lord) when he is produced for
[011] the taking of assises and juries,³ where villeins are excluded since [the writ] says⁴ ‘by
[012] oath of free and law-worthy men etc.’ It will be otherwise of statuliberi. If a villein,
[013] within the potestas of his lord or beyond it, is enfeoffed, no matter by whom, of another's
[014] property and is disseised by his feoffor, no matter when, at once or after an
[015] interval, he will recover by the assise, and so against all others who have no interest in
[016] the property, ⁵because he possesses rightfully as against his feoffor and others who
[017] have no right.⁶ But if he is immediately ejected by the true owner he will not recover
[018] against him, because as against him he possesses wrongfully, though rightfully as
[019] against all others. But if he ejects him after a long interval it will be otherwise, as
[020] above.⁷ When he is in seisin in his own name, as by disseisin or intrusion, and is disseised,
[021] though he is in by his own wrongful act, nevertheless, because he possesses
[022] rightfully as against all who have no right, he will recover by the assise, just as anyone
[023] will, because of the advantage of possessing, as above,⁸ and let it be done against
[024] those who have right, as⁹ a little above. And that a villein within the potestas of his
[025] lord may be enfeoffed and, with the permission of his lord, have a free tenement is
[026] clear, and may be proved by this saying, for it is commonly said that one may be the
[027] villein of one and the free man of another, that is, though he is the villein of one and
[028] holds of him in villeinage, with the permission of his lord he may hold freely of another
[029] and thus be the free man of the other. ¹⁰<But no man is part bond and part free; he is
[030] either wholly free or wholly bond, which he may be in different respects.>¹¹ From this
[031] it follows, as is apparent, that if he may be free as against his non-lord feoffor, he ought
[032] properly to be free as against a non-lord who is not his feoffor, to whom his freedom or
[033] bondage is of no concern, though he is the villein of his lord as regards his person and
[034] his villein tenement. If a free man holds a villeinage he will be free as against all to the
[035] extent of recovering his free tenement, if he has such, but if he is ejected from

Notes

1. Supra 84, 87, infra 105, 112

2. Supra 87, infra 112

3. Supra 85

4. ‘dicatur’

5-6. ‘quia . . . ius non habeat,’ from lines 14-16

7. Supra ii, 90

8. Supra 98

9. ‘ut’

10. Supra i, 397

11. Supra ii, 29-30, 86