Bracton: Thorne Edition: English. Volume 3, Page 93

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Volume 3, Page 93

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[001] to prove the deceased a villein in a principal action of status, [where status] is the
[002] principal matter,¹ by witnesses and kindred, for that would be to prove him such and
[003] so alter² the status of the deceased.³ But whether he died bond or free, or a bastard,
[004] may be inquired into by a jury without changing his status, because villeinage raised
[005] by way of exception neither alters nor changes the status of anyone, dead or alive. It
[006] is one thing to prove by witnesses and kindred that it ought to be so, where there is
[007] someone who could answer the allegations, and another to inquire by a jury simply
[008] whether it was so. And this is true even if the father was in truth a villein, claimed in
[009] court as a villein by writ, who defended himself in his free status up to his death. And
[010] so if, established beyond the potestas of his lord, he was never claimed in his lifetime.
[011] A statuliber is anyone who is beyond the potestas of his lord [who] cannot be recalled to
[012] servitude without plea and writ. And by the same token, a statuservus will be a free
[013] man in possession of his servitude, so established that he cannot attain his freedom
[014] without plea, who dies in that status, whether he has asserted his freedom during his
[015] lifetime or not.

Of certain special cases.

[017] We have explained in general how the exception of villeinage is to be raised and for
[018] whom it lies. Now we must turn to special cases. Suppose that a freeman enters into a
[019] villeinage to a neif. His status is not changed by that though it is partially concealed,⁴
[020] since because of the neif, who is, so to speak, a barrier, the person joined cannot withdraw
[021] from the villeinage. He will be bound to do the villein customs not by reason of
[022] his person, but because of the villeinage, because by it neither the status nor the condition
[023] of a free person is changed. But suppose that both husband and wife are fugitives,
[024] the wife is claimed and recalled into servitude and the husband follows her?
[025] Conversely, suppose that a villein outside the potestas of his lord is joined to a free
[026] woman who has a free tenement; if his lord ejects them both, the husband and the
[027] wife, quaere whether they ought to recover despite the exception of villeinage. It is
[028] proper that they should, for the reason given above, until the villein husband is recalled
[029] to servitude. But [if he is recalled] what of the wife and the free tenement if the
[030] lord enters into the tenement? The wife may not claim by herself, without her husband;
[031] if her husband is joined the exception will bar them. What is to be done? It
[032] seems that the lord will retain the tenement as long as the villein lives and after his
[033] death the wife will have a remedy, the impediment, so to speak, being removed,⁵ [but
[034] in truth they will recover property formerly held, but cannot obtain possession not
[035] hitherto acquired.]⁶ To a lord raising the exception of villeinage an answer may be
[036] given and a replication made in many ways. It may be alleged by way of replication
[037] that the lord acknowledged him to be free in the king's court

Notes

1. C. 7.16.13: ‘Principaliter de statu defuncti agi non potest’

2. Reading: ‘quia hoc esset probare eum talem et ita mutare’

3. Infra 109, 288, iv, 307-8; B.N.B., no. 1160

4. Infra 96

5. Infra 96, 113

6. Supra 35, infra 96, 115, 172