Bracton: Thorne Edition: English. Volume 3, Page 88

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 88

Next

Go to Volume: Page:

[001] no more than a farmer who holds in the name of another. But if the villein acquires a
[002] tenement to be held freely of his feoffor, the lord does not take it into his hand, and a
[003] stranger, or his feoffor, then ejects him and excepts villeinage against him, the exception
[004] will be destroyed by the replication, for here the replication lies for the villein,
[005] that is, that the exception does not belong to the other.¹ ²<Suppose that a villein beyond
[006] the potestas of his lord makes an acquisition. The lord must first deraign the
[007] villein and may only then put himself into the tenement.³ But suppose that the villein's
[008] feoffor does not permit him to enter but puts himself into seisin, or a stranger
[009] does so: who will have the assise of novel disseisin, the lord or the villein? Not the lord,
[010] because he never had seisin; if the villein sues by the assise the exception of villeinage
[011] will bar him. But in truth, whatever may be said, when a villein is beyond the potestas
[012] of his lord, since he is in a free status as against his lord he will obviously be in such as
[013] against a non-lord, who has no right in his person. Thus if the lord does not have the
[014] exception of villeinage, neither does the stranger.⁴ [This is true] if the villein is in a
[015] free status, and so if his status is doubtful, [for] we must always presume in favour of
[016] liberty until the contrary is proved,⁵ and thus let the assise proceed first, as though he
[017] were free,⁶ and let the question of status be litigated afterwards, because disseisin is
[018] preliminary.> If the exception of villeinage is raised against one beyond the potestas
[019] of his lord and claiming restitution [from his lord], it will not lie until his body is deraigned
[020] in an action on status, as was said above, even if the exceptor produces the
[021] plaintiff's kindred in proof of that exception, because if so, the action on status would
[022] be brought before the court and both, the action on status and the assise, determined
[023] together, which ought not to be with respect to those who are beyond the potestas of
[024] their lords in a free status and, so to speak, sui juris. But if the exception is raised [by
[025] the lord] against one who is within his potestas, if he is his own villein, and in proof of
[026] the exception kindred are produced, who prove him a villein, it then lies, and both the
[027] action of status and the assise are determined, and he will be delivered to his lord as a
[028] villein. The same will be true, [that is], both will be determined,⁷ if a villein within the
[029] potestas of his lord asserts that he is free and sues a writ of services and customs ‘that
[030] the lord not exact from him etc.,’⁸ or sues out a writ of peace, when he is within
[031] potestas and no writ de nativis has issued,⁹ and the lord alleges villeinage and produces
[032] kindred; both pleas will be determined by this, but indirectly. And so if, when the
[033] villein cannot be justiced by his lord to do him the services, the lord sues

Notes

1. Infra 92

2. Supra i, 396

3. Supra ii, 89, infra 89

4. Infra 98

5. D. 50.17.20; infra 91

6. Infra 92

7. ‘et per hoc . . . utrumque’

8. Glanvill, xii, 9

9. ‘vel . . . nativitate sua,’ from last lines; ‘praecesserit’; infra 294, 300