Bracton: Thorne Edition: English. Volume 3, Page 89

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Volume 3, Page 89

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[001] by the writ¹ ‘that he do him the customs and services which he ought to do him from
[002] the tenement he holds of him in villeinage,’ and produces kindred and so proves the
[003] villeinage; both will be determined indirectly.² If an exception of his kind is raised by
[004] a possessor against a free man,³ possessed in good faith, kindred cannot be produced,
[005] nevertheless the presumption must stand until the contrary is proved and the exception
[006] is good, because of possession, until he proves himself free.⁴ And so if he is another's
[007] villein possessed in good faith, the exception will always stand until his true
[008] lord recovers him, and if in some way he who possesses [him] produces his kindred in
[009] proof, that will be to no avail, because by that he will not prove him to be his villein,
[010] since his kindred are the villeins of another.⁵ <To prove the exception of villeinage it
[011] is not always necessary to produce kindred, but it may be proved by the assise alone;
[012] if the plaintiff refuses it, an action or plaint will be denied him, ⁶ whether he is a free
[013] man who holds a villeinage or a villein. Let him put⁷ himself on the assise whether he
[014] wishes to or not, otherwise let an action be denied him, [that is], when he is within the
[015] potestas of his lord; it would be otherwise if he were outside his potestas.⁸ If the jurors
[016] swear falsely, they are to be convicted by the production of his kindred.>⁹ Suppose
[017] that one who has enfeoffed a villein within the potestas of his lord ejects him from the
[018] tenement he gave him to hold freely. We must then distinguish whether the villein's
[019] lord has taken that tenement into his hand or not. If he has, the lord then has the
[020] assise and action and the villein none, no more than for a villeinage belonging to the
[021] lord. If he has not, the action then lies for the villein and his heirs against all, [against
[022] his feoffor and his heirs, and all others who have their action from them, by force of
[023] the feoffment,¹⁰ [for] if they raise the exception of villeinage against him, he will have
[024] a replication based on the deed and feoffment of the donor; and where the assise of
[025] novel disseisin lies for the ancestor, the assise of mortdancestor will lie for the heir,]¹¹
[026] notwithstanding the exception of villeinage, except¹² against the true lord of the villein.
[027] And so against strangers who have no right to eject, since¹³ the villein here has the
[028] action, not the lord. Suppose that the lord gives land to a villein within his potestas to
[029] hold freely to himself and his heirs, with manumission; though the villein holds a villeinage,
[030] nevertheless, because of the manumission, he will be free,¹⁴ and like¹⁵ any
[031] other free man will hold freely, and though he holds in villeinage, the villeinage does
[032] not deprive him of the freedom acquired by manumission. Hence if the lord ejects
[033] him, and he sues by the assise, and the lord excepts villeinage against him, he has a
[034] replication based on the deed and manumission of his

Notes

1. ‘per breve,’

2. Glanvill, ix, 9; B.N.B., nos. 784, 1005; cf. Vinogradoff, Villainage in England, 81

3. ‘libero’

4. Supra ii, 89, iii, 84, 85

5. Supra i, 396

6-8. ‘sive liber . . . extra potestatem,’ addicio from lines 3-6; supra i, 396

7. ‘ponat’

9. Infra 91, 111; om: ‘qui fuerit . . . domini’

10. ‘ex feoffamento’; infra 94

11. Infra 299

12. ‘praeter’ as supra ii, 86, iii, 84, infra 92

13. ‘cum’

14. Supra ii, 85

15. ‘sicut’ for ‘ac si,’ as infra 90, line 2