Bracton: Thorne Edition: English. Volume 3, Page 109

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Volume 3, Page 109

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[001] of Bishopstone,’¹ provided the services are certain. But if they are uncertain, regardless
[002] of the kind of tenement, it will then be a villeinage,² where neither the assise of
[003] novel disseisin nor mortdancestor nor [any] other [lies],³ no more than in villein
[004] socage,⁴ where⁵ there is only a jury among those of like condition according to the
[005] custom of the manor. On this matter may be found [in the roll] of the eyre of William
[006] of Ralegh in the county of Middlesex [and] of Trinity term, both in one, in the thirteenth
[007] year of king Henry,⁶ where the several kinds of men holding in different ways
[008] are distinguished. If villeinage is objected with this addition, that the plaintiff cannot
[009] bring the assise of mortdancestor because his father or other ancestor whose seisin he
[010] claims was a villein,⁷ [If there is no proof on either side, the truth may be established
[011] by a jury, if both willingly put themselves upon it, as [in the roll] of the eyre of William
[012] of Ralegh in the county of Buckingham, an assise of mortdancestor [beginning] ‘if
[013] Walter le Gardner,’⁸ and so [in the roll] of the eyre of the same William in the county
[014] of Middlesex in the thirteenth year of king Henry, an assise of mortdancestor [beginning]
[015] ‘if Godfrey.’]⁹ [quaere] if this ought to be ascertained by kindred.¹⁰ The status
[016] of deceased relatives, as is evident, cannot be inquired into, for no investigation of
[017] anyone's status is made after his death.¹¹ Whether the deceased was a bastard or a
[018] villein must not be asked, but whether he was or was not in that status may be, as
[019] above.¹² If it is simply objected that the plaintiff is a villein and he denies it, or does
[020] not admit it, let the assise then proceed as though nothing has been said as to why
[021] the assise should remain, as [in the roll] of the eyre of the bishop of Durham and
[022] Martin of Pateshull in the county of York in the third year of king Henry, an assise of
[023] novel disseisin beginning ‘if James son of Siward.’¹³ Suppose that villeinage is excepted
[024] and the plaintiff denies it, and the replication is made that he once confessed
[025] himself a villein in the king's court or in another which has record, by that acknowledgement
[026] an exception will bar him who confessed forever in every judicial proceeding;¹⁴
[027] if the jurors, that being proved, award him a free tenement as a free man in
[028] another proceeding or assise, they are to be convicted of perjury, as in the roll of
[029] Trinity term in the fourth year of king Henry in the county of Dorset, the case of
[030] Hamelin son of Ralph.¹⁵ But suppose that one puts himself on a jury with respect to
[031] this exception and the jurors say they do not know whether he is a villein or not; in the
[032] face of this doubt judgment must be given in favour of freedom, for if they do not
[033] know whether he is such or not they do know that he is such, that is, a villein, and as
[034] long as there is doubt as to whether something exists it is as though it did not exist.
[035] And generally in every case where one says that the plaintiff is a villein

Notes

1. B.N.B., no. 281; C.R.R., xiii, no. 508 (sidelined)

2. Supra 39, infra 131

3. Supra ii, 37, 89

4. Supra ii, 90

5. ‘ubi nisi’

6. Not in B.N.B., no roll extant

7. ‘villanus fuit pater suus,’ as supra 92

8. Not in B.N.B.

9. B.N.B., no. 343

10. Infra 111

11. Supra 92

12. Ibid.

13. Not in B.N.B.; not in Selden Soc. vol. 56: see p. xiii

14. Supra ii, 31, infra 111, 309, iv, 310

15. B.N.B., no. 1411 and iii, 722 no. 8; C.R.R., ix, 92; infra 309, iv, 310