Bracton: Thorne Edition: English. Volume 3, Page 85

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Volume 3, Page 85

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[001] armed with a perpetual exception or the privilege:¹ a perpetual exception, by which
[002] they may protect themselves perpetually, because they did not flee from the land of
[003] him who raises the exception and the like;² the privilege, because they have been resident
[004] in some privileged city or vill or on the demesne of the lord king for a year and a
[005] day without claim,³ or armed with the clerical privilege,⁴ [But what shall be said of a
[006] knight? The same, in truth, that is said of a clerk, until degraded by judgment.] We
[007] must see whether the exception is raised against his own villein or another's. Also in
[008] what action, whether [against a demandant] in a petitory suit in a proprietary action,
[009] or against a plaintiff claiming restitution in a possessory suit.⁵ Then whether he complains
[010] and seeks to be restored on his own possession,⁶ in an action of possession and
[011] spoliation, or claims that a thing be restored to him on another's, as on the seisin some
[012] one of his ancestors had on the day he died, in a possessory action as of fee⁷ <In the
[013] restitution of one despoiled, the exception does not harm one outside the potestas of
[014] his lord, so as to bar his recovery, because the spoliation rather than status must first
[015] be discussed.⁸ But if he claims against his lord in a proprietary action, the exception
[016] of villeinage proved by kindred or the country will bar [him], as where the villein
[017] claims the seisin his ancestors had before [their] flight.> [or]⁹ as of fee and right in a
[018] proprietary action.¹⁰ He is not admitted to an action, an exception of servitude having
[019] been put forward and proved, for the estate of his ancestors, on their seisin, unless
[020] they were in a free status.¹¹ If the exception of villeinage is raised against one as a
[021] juror it requires no proof or formal inquiry but reliance will be placed on the mere
[022] word of his fellow jurors unsupported by oath, as above [in the portion] on exceptions
[023] against jurors.¹²

[By whom.]

[025] It is also important by whom it ought to be raised, for though an exception may lie
[026] against another, not everyone may put it forward. We therefore must see whether it is
[027] the lord himself who raises it or a stranger, and if a stranger, whether he is [the villein's]
[028] feoffor or another, one who has no interest in the matter. If it is the lord, within
[029] whose potestas the villein is,¹³ [whether] his own villein or another's, or a free man
[030] whose status, whether he is free or bond, is doubtful, though at first sight the assise or
[031] action seems rightful [the exception will be good], since a villein has no exception
[032] against his lord, because he has no free tenement as against his lord, because whatever
[033] is acquired by him is acquired for the lord,¹⁴ and since he is possessed by his lord he
[034] can possess nothing nor have anything of his own.¹⁵ If he is another's villein, or a free
[035] man in a servile status, the exception will be good until the villein is proved another's,
[036] or the free man held in servitude proves that he is free.¹⁶ This exception will always be
[037] good against such persons, whether the tenement is a pure villeinage of the lord or
[038] their acquisition by the feoffment of another. When the exception is raised by the
[039] true

Notes

1. ‘cum exceptione perpetua vel privilegio muniti’; C. 7.39.1: ‘exceptione munitus sit’; 8.35.11

2. ‘et huiusmodi’

3. Infra 104

4. Supra ii, 31

5. Om: ‘et spoliationis’

6. ‘possessione’

7. Supra i, 396

8. Infra 105

9. Om: ‘Item’

10. Om: ‘in qua’

11. ‘libero’

12. Supra 71, infra 101

13. ‘fuerit’

14. Inst. 1.8.1; supra ii, 87

15. D. 41.2.23.1; supra ii, 52, 66, 88

16. Supra ii, 89, iii, 84, infra 89