Bracton: Thorne Edition: English. Volume 3, Page 90

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Volume 3, Page 90

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[001] lord. And so with respect to the villeinage he holds, he may abandon it as any free man
[002] may.¹ And so if the lord makes an agreement with the manumitted man, he has his
[003] action on the agreement against his lord. If he makes a gift of land to the villein to be
[004] held by free service, without manumission, that gift or grant does not change his servile
[005] status, for a villeinage in no way diminishes the freedom of a free man nor does a
[006] free tenement confer any freedom upon a villein.² But if, without manumission, the
[007] lord gives it in this way, to the villein and his heirs to be held freely, it may be presumed
[008] that he wished him to be free, for unless his freedom is given him a villein cannot
[009] have heirs, and thus he has a replication against the lord excepting villeinage
[010] against him.³ If [the exception] is raised against any person within another's potestas
[011] or beyond it, whether he has a perpetual exception or the privilege, by anyone, a lord
[012] or some other, a feoffor or a stranger who has no interest, or any other person whomsoever,
[013] and the plaintiff is unwilling to replicate against the tenant but simply alleges
[014] that he is free and puts himself on a jury, and the other alleges the contrary and also
[015] puts himself on the jury, without producing other proof, by kindred or in any other
[016] way, the assise falls.⁴ ⁵When the matter is so raised, by consent of the parties, it is not⁶
[017] to be taken as an assise but turned into a jury, and let an oath be taken thus, that they
[018] [the jurors], will speak the truth concerning the matters required of them on the part
[019] of the lord king, because what is here in question is not primarily the disseisin, whether
[020] he has been disseised or not, but whether one is true or the other, that is, whether he is
[021] free or bond;⁷ thus there will here be no conviction of the jurors, because of the consent,
[022] nor does an exception of this kind touch the assise, since by consent they make
[023] the jury their judge, so to speak, as to status. If the jurors say he is bond he will take
[024] nothing by the assise; if free, it will then first proceed⁸ on the question of whether he
[025] has been disseised or not, not so that they be prejudiced⁹ thereby, so that they will
[026] not have recourse to another remedy, or that the matter of status will thereby be
[027] determined, [for] neither of them will be prejudiced with respect to exceptions or
[028] answers if the question of status is afterwards litigated between them.¹⁰ For if the
[029] jury says unequivocally that the plaintiff is a villein, he is not on that account to be
[030] delivered up to the lord, if he is outside his potestas, nor proved a villein, but another
[031] action will be necessary by a writ de nativis, because nothing is decided by that jury
[032] except that he be denied his plaint.¹¹ And if he is within the potestas of his lord as a
[033] villein and the jury declares him free, though he would recover by the assise, his body
[034] is not taken from the hands of his lords until he proves himself free by another writ,
[035] because the exception of villeinage

Notes

1. Supra ii, 89, infra 107, 131

2. Supra ii, 85, 89, iii, 39

3. Supra ii, 85, iii, 39, 89, infra 94, 106

4. ‘cadit assisa,’ from lines 18-19

5. New sentence

6. ‘non est’

7. Infra 103, 113

8. ‘procedet’; infra 92, 95-6

9. Reading: ‘non tamen ut eis praeiudicatur’

10. Infra 103

11. Infra 112