Bracton: Thorne Edition: English. Volume 3, Page 91

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Volume 3, Page 91

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[001] put forward and so proved changes neither status nor condition,¹ as it would if the
[002] matter of services and customs were litigated, where villeinage is proved indirectly.²
[003] If the tenant excepts that the plaintiff acknowledged himself a villein,³ it then remains
[004] for the judge to inquire where he did so and whose villein he acknowledged himself
[005] to be, for if it was not the villein of him who raises the exception it is not for him
[006] to put it forward; it is for him whose villein he is said to be and within whose potestas he
[007] is. ⁴An exception on the ground of acknowledgment lies for his lord without other
[008] proof, unless he has since changed his status by act of his lord, by manumission,
[009] feoffment or agreement, for then, though the lord has a lawful exception, the villein
[010] has a lawful replication against it.⁵ [All this is true unless one says that the plaintiff
[011] puts himself on the assise unwillingly, not with his consent, when he has a replication
[012] and otherwise is not to be heard.]⁶ If no exception of villeinage is raised, nor any
[013] other put forward as to why the assise ought to remain, and the assise proceeds in the
[014] manner of an assise, if it says unequivocally that the plaintiff cannot have a free tenement
[015] because he is a villein, or conversely, that he is free, and the justice decides according
[016] to the verdict of the jurors, without an examination, which he ought not to
[017] do, and the contrary is afterwards proved, by kindred or in some other way, the jurors
[018] will be convicted of perjury.⁷ Suppose that he against whom villeinage is raised is altogether
[019] unknown, so that nothing may be settled by the jurors as to his status,
[020] whether he is free or bond; in view of this doubt judgment must be given in favour of
[021] freedom, [because] interpretation leans to the more merciful side, just as it is presumed
[022] that every man is good until the contrary is proved, and also because he who
[023] puts forward the exception of villeinage does not prove it, and it therefore is, so to
[024] speak, void, since it is not proved, though it may indeed be as alleged. For right never
[025] fails, though proof may fail.⁸ Suppose that another's villein, one within the potestas of
[026] a lord other than his own, makes an acquisition and is ejected by his true lord before
[027] he has recovered him; the villein will recover by the assise against his true lord, despite
[028] the exception of villeinage; the assise lies either for the lord in whose potestas he
[029] is or the villein, according as the land has or has not been taken into the hand of the
[030] former. Suppose that one enfeoffs another's villein within the potestas of his lord, to
[031] hold of that lord freely, and the lord agrees and takes the homage of his villein; if he
[032] ejects him the villein will recover by the assise despite villeinage, but it will be within
[033] the discretion of the lord whether he wishes to accept the arrangement or take the
[034] tenement into his hand. If the villein acquires for himself, not for his lord, the lord
[035] will not be made

Notes

1. Infra 103

2. Supra 89

3. Supra ii, 31, infra 109, 309, iv, 310

4. New sentence

5. Supra 90

6. Belongs supra 89; supplement to addicio at n. 5; infra 104, 105

7. Supra 88

8. D. 26.2.30: ‘non ius deficit, sed probatio’