Bracton: Thorne Edition: English. Volume 3, Page 95

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Volume 3, Page 95

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[001] ¹When a villein replicates against his lord on the ground of manumission, the lord
[002] may triplicate against him that the manumission was inadequate or imperfect, [But
[003] this triplication lies for the heir of the manumittor, not for the manumittor himself,]
[004] because suppose that a villein wishes to be manumitted, and since he has nothing of
[005] his own,² puts his faith in another who buys him, so to speak, for his own money: by
[006] such purchase the person bought achieves no liberty but only changes his lord.³
[007] ⁴When a thing is bought, first the price ought to be paid, then the transfer of the thing
[008] follows. [If] payment is made for the villein but no livery follows, [he thus] always remains
[009] in villeinage as before. If he acquires a tenement to he held freely and the heir
[010] or other successor of the manumittor ejects him, and when he claims by the assise the
[011] heir raises the exception of villeinage, and the villein replicates on the manumission
[012] and the purchase, the heir may triplicate that the purchase or manumission was incomplete,
[013] since livery never followed in the lifetime of the vendor. Thus he will always
[014] remain within the potestas of the heir, nor will an instrument testifying to the
[015] manumission avail him, for if such is put forward in court it may hurt rather than
[016] help.⁵ And note that an exception may be so raised against a plaintiff that he will always
[017] bear the burden of proof, and a replication to an exception may be so made by
[018] the plaintiff that he who puts forward the exception will bear the burden of proof.⁶
[019] Let these suffice by way of illustration, but something is said of the aforesaid below
[020] [in the portion] on special cases. [Villeinage may be raised by way of exception with
[021] this addition, that the plaintiff cannot have a free tenement because he is a villein, a
[022] villein for this reason, that he cannot marry his daughter without paying merchet, at
[023] more or less, for the consent of the lord,⁷⁸ and he may add other objections which will
[024] make it likely that he is a villein. The truth will then have to be ascertained in the
[025] manner of a jury not of an assise, if both parties agree to put themselves on a jury, as
[026] among the pleas which follow the king, among the assises taken in Norwich coram
[027] rege in the twenty-third year of his reign, an assise of novel disseisin [beginning] ‘if
[028] William Byard.’⁹ The exception of villeinage may be raised in this way, that the plaintiff
[029] is a villein and holds in villeinage, as in the same roll coram ipso rege an assise of
[030] novel disseisin [beginning] ‘if Richard of Merlay.’¹⁰ Also with this addition, that he
[031] cannot sell his male foal or his ox without the consent of his lords. All these additions,
[032] and many others, may be raised against the plaintiff at one and the same time, and

Notes

1. New paragraph

2. Glanvill, v, 5

3. Infra 96

4. ‘De re empta’

5. ‘ei’ for ‘eis’; infra 96

6. Infra 150

7. ‘sufficiant exempli causa, sed aliquid de praedictis dicatur’

8. Infra 96

9. Not in B.N.B., infra 108

10. Not in B.N.B.; infra 108