Bracton: Thorne Edition: English. Volume 3, Page 111

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Volume 3, Page 111

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[001] he will recover his seisin by the assise. Suppose that a villein, within the potestas of his
[002] lord or outside it, brings the assise, villeinage is excepted against him and he is unwilling
[003] to put himself on a jury with respect to it. There will be nothing to do, as is
[004] evident, except to deny him the assise or action,¹ [with the distinction however.]²
[005] And so if the tenant who raises the exception is unwilling to prove it in any way, by
[006] kindred or by a jury, or cannot prove it; let him, as though undefended and failing to
[007] prove his allegation and exception, restore possession to the plaintiff, unless he has
[008] alleged some other reason why the assise ought to remain. ³<When villeinage is raised
[009] by way of exception, though it is proved the plaintiff is not prejudiced thereby in an
[010] action on status if he is subsequently claimed in servitude.⁴ For that reason the exception
[011] of villeinage ought to be proved, if he against whom the exception is raised is
[012] outside the potestas of him who raises it, by the assise and not by kindred, for if by
[013] kindred it might be prejudicial to him against whom it is raised in an action on status,
[014] where no proof other than by kindred is sufficient or proper,⁴ [If he against whom it is
[015] raised is within the potestas of his lord, it may well be proved in that way because
[016] if villeinage is objected against one under the potestas of his lord by his lord, and
[017] kindred are produced in proof, and villeinage is proved by kindred, the action of status
[018] will be determined (unless he is one wrongfully possessed, who later wished to assert
[019] his freedom)⁵ with the assise,⁶ which cannot be if the plaintiff is beyond his lord's
[020] potestas.] because if kindred are produced to prove the exception of villeinage against
[021] the assise,⁷ and if the lord afterwards wishes to claim him in servitude and prove
[022] villeinage by kindred, that would be proof upon proof, and one of them unnecessary.>
[023] Finally, note that sometimes the exception of villeinage is raised by one party against
[024] the other, sometimes by a juror and not by a party, where the jurors say after taking
[025] the oath that the plaintiff is a villein and cannot have a free tenement. If the contrary
[026] is true, and if, after they have been examined by the judge, the jurors persist in their
[027] finding, they will be open to a conviction if the plaintiff can show the contrary by a
[028] jury of twenty-four, or by kindred, as was said above at the beginning.⁸ If it is raised
[029] by one party against the other before the oath, it is either raised against one who is
[030] under the potestas of his lord and holds only in villeinage, or one who holds in villeinage
[031] and also holds a free tenement by the feoffment of another, his lord or a stranger,
[032] [or] against one outside the potestas of his lord and in a free status; then it either is
[033] raised by the lord or by the stranger. [In all these cases, if the plaintiff simply denies,
[034] without putting forward a replication, and puts himself on a jury, and the tenant

Notes

1. Infra 151

2. Distinction between villein within or outside potestas?

3. Supra i, 397

4. Supra 90, 103, 105, infra 112, 150

5. ‘nisi ita . . . libertatem,’ from lines 17-18; supra 103, 105

6. Supra 84, 105, 106, infra 112

7. Om: ‘nec . . . statum’

8. Supra 89, 91