Bracton: Thorne Edition: English. Volume 3, Page 107

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 107

Next

Go to Volume: Page:

[001] against whom no exception is raised by the plaintiff, who admit that they are villeins,
[002] and on the part of the plaintiff-replicator no free man is produced to prove the replication;
[003] though he wishes to put himself on the assise, his plaint fails and the tenant is
[004] quit, as [in the roll] of the last eyre of Martin of Pateshull in the county of York, near
[005] the end of the roll.¹ Suppose that the exception of villeinage is raised against a free
[006] man because he holds by villein services; the exception will not prejudice him with
[007] respect to his status though it will with respect to recovering the tenement. Not
[008] with regard to his status, for he may abandon the villeinage and, as a free man, depart
[009] [free],² as in the roll of Michaelmas term in the third and the beginning of the fourth
[010] years of king Henry in the county of Sussex, the case of John of Montacute and Martin
[011] of Bestenovere,³ where it was said to the aforesaid Martin ‘that if he wished to hold
[012] that land he should perform the customs his father performed; if he did not, that his
[013] lord should take the villeinage into his hand.’ Thus it appears that though a free man
[014] holds a villeinage by villein customs he must not be ejected against his will, provided
[015] he is willing to do the customs belonging to the villeinage,⁴ because⁵ they are done by
[016] reason of the villeinage and not by reason of the person. If he did them by reason of
[017] his person, as a villein established under potestas, or by reason of both the tenement
[018] and the person,⁶ the exception would prejudice him. And that such exception, of
[019] servitude by reason of villein services, put forward by way of exception in any plea,
[020] whether on the possession or the property, does not prejudice a free man in an action
[021] on status, if he is claimed in villeinage, is clearly proved in the roll of Hilary and
[022] Easter terms, both in one, in the fourth year of king Henry in the county of Sussex,
[023] [the case] of Martin of Bestenovere, who brought a writ de libertate probanda against
[024] John of Montacute, who claimed him as his fugitive villein.⁷ When the same Martin
[025] alleged before the justices that he was free, he was answered by John that he was a
[026] villein because he had deraigned him as his villein before the justices. Afterwards the
[027] justices bore record by their rolls, on which the said John had put himself, that a jury
[028] had been taken between them as to the services and customs which the said John had
[029] exacted from the same Martin, by which it was established that from the tenement he
[030] held of the aforesaid John he ought to do villein customs of all kinds, and hence he
[031] said that he was his villein. To which Martin answered that he was free, and that he
[032] did such villein customs not because of his free person but because of the tenement
[033] which he held in villeinage of the same

Notes

1. B.N.B., no. 1885; no roll extant

2. Supra ii, 37, 89, iii, 90, infra 131

3. B.N.B. no. 70; C.R.R., viii, 114; Vinogradoff, Villainage, 77, 78, 87; B.N.B., i, 86

4. Supra ii, 37, 85, 89, 90; infra 132

5. ‘quia’

6. Infra 131

7. B.N.B. no. 88