[Trin. 29 E. III, r. 203, v. Oxon.]
Thomas Barentyn et Radulfus Crips Shephird attachiati fuerunt ad respondendum tam domino Regi quam Priori hospitalis Sancti Iohannis Ierusalem in Anglia quare, cum per ipsum dominum Regem et consilium suum pro communi utilitate regni Regis Anglie ordinatum sit, quod si aliquis seruiens in seruicio alicuius retentus ante finem termini concordati a dicto seruicio sine causa racionabili vel licencia recesserit, penam imprisonamenti subeat et nullus sub eadem pena talem in seruicio suo recipere vel retinere presumat, et predictus Thomas predictum Radulfum nuper seruientem predicti Prioris in seruicio suo apud Werpesgrave retentum qui ab eodem seruicio ante finem termini inter eos concordati sine causa racionabili et licencia predicti Prioris recessit, in seruicium predicti Thome quamquam memoratus Thomas de prefato Radulfo eidem Priori restituendo requisitus fuerit admisit et retinuit in Regis contemptum et predicti Prioris grave dampnum ac contra ordinacionem predictam. Et unde predictus Prior per Ricardum de Fifhide attornatum suum queritur quod cum per ipsum Regem et consilium suum etc. ordinatum sit quod si aliquis serviens in servicium alicuius retentus ante finem etc. a dicto seruicio sine causa etc. recesserit penam imprisonamenti subeat et nullus sub eadem pena talem in seruicio suo recipere vel retinere presumat, predictus Thomas predictum Radulfum nuper seruientem predicti Prioris in seruicio suo apud Werpesgrove retentum scilicet die Lune proxima post festum Sancti Laurentii anno regni domini Regis nunc Anglie vicesimo octavo ad deseruiendum ei in officio pastoris etc. scilicet die Lune in septimana Pentecostes a festo Sancti Michaelis Archangeli tunc proximo sequenti per unum annum proximum sequentem qui ab eodem seruicio ante finem termini ... recessit, in seruicium predicti Thome quamquam idem Thomas de prefato Radulfo eidem Priori restituendo requisitus fuerit admisit et retinuit in Regis contemptum et predicti Prioris grave dampnum ac contra ordinacionem etc. et predictus Radulfus a seruicio predicti Prioris ante finem sine causa etc. videlicet predicto die Lune in septimana Pentecostes recessit in Regis contemptum ad predicti Prioris grave dampnum ac contra ordinacionem etc. unde dicit quod deteriorates est et dampnum habet ad valenciam viginti librorum. Et inde producit sectam.
Et predicti Thomas et Radulfus per Stephanum Mebourum attornatum suum veniunt. Et defendunt vim et iniuriam quando etc. et quicquid etc. Et protestantur quod ipsi non cognoscunt quod predictus Radulfus fuit seruiens predicti Prioris nec retentus cum eodem Priore prout Prior superius versus eos narravit et predictus Thomas dicit quod predictus Radulfus est villanus suus ut de manerio suo de Chalgrave per quod ipse seisivit eundem Radulfum tanquam villanum suum prout ei bene licuit. Et hoc paratus est verificare unde petit iudicium si predictus Prior injuriam in persona sua assignare possit. Et predictus Radulfus dicit quod ipse est villanus predicti Thome ut de manerio predicto et quia idem Radulfus extra dominium predicti Thome morabatur parentes ipsius Radulfi districti fuerunt ad venire faciendum predictum Radulfum ad predictum Thomam dominum suum et ad eorum sectam et excitacionem idem Radulfus venit ad predictum Thomam absque hoc quod ipse retentus fuit cum predicto Priore ad deseruiendum ei per tempus predictum prout idem Prior superius versus eum narravit. Et de hoc ponit se super patriam. Et predictus Prior similiter. Et idem Prior quo ad placitum predicti Thome dicit quod predictus Radulfus non est villanus ipsius Thome ut de manerio suo predicto prout idem Thomas superius allegat. Et hoc petit quod inquiratur per patriam. Et predictus Thomas similiter. Preceptum etc.
III.
See [p. 66, n. 2.], and [p. 78, n. 2.]
The so-called Mirror of Justice is still in many respects an unsolved riddle, and a very interesting one, as it seems to me. The French edition of 1642 from which quotations are so frequently made presents a text perverted to such an extent, that the gentleman from Gray's Inn to whom we owe the English translation of 1648 took it upon himself to deal with his original very freely, and in fact composed a version of his own which turned out even less trustworthy than the French. Ancient MSS. of the work are very scarce indeed; the fourteenth century MS. at Corpus College, Cambridge, is the only one known to me; although there are also some transcripts of the seventeenth century. This means that the work had no circulation in its time. It is very unlike Bracton, or Britton in this respect, and indeed in every other. Instead of giving a more or less learned or practical exposition of the principles of Common Law it appears as a commentary written by a partisan, acrimonious in form, almost revolutionary in character, full of stray bits of information, but fanciful in its way of selecting and displaying this information. 'Wahrheit und Dichtung' would have been a proper title for this production, and no wonder that it has excited suspicion. It has commanded the attention of the present generation of scholars notwithstanding the odd way in which the author, Andrew Horne, or whoever he may be, cites as authority fictitious decisions given by King Alfred and by a number of legal worthies of Saxon times who never gave judgment save in his own fruitful imagination. This may be accounted for by peculiar medieval notions as to the manner in which legal discussion may be most efficiently conducted, but altogether the Mirror, as it stands, appears quite unique, quite unlike any other legal book of the feudal period. It must be examined carefully by itself before the information supplied by it can be produced as evidence on any point of English medieval history. Such an examination should lead to interesting results, but I must reserve it for another occasion. What I have said now may be taken simply as a reason for the omission in my text of those passages of the Mirror which bear on the question of villainage. I may be allowed to discuss these passages in the present Appendix without anticipating a general judgment on the character of the book and on its value.
The author of the Mirror shows in many places, that he is hostile not only to monarchical pretensions, but also to the encroachments of the aristocracy. He is a champion of the lower orders and gladly endorses every rule set up by the Courts 'in favour of liberty.' In this light he considers the action 'de nativitate' as conferring an advantage upon the defendant, the person claimed as a villain, but considered as free until the contrary has been proved[854]. Another boon consists in the fact, that the trial must be reserved for the decision of the Royal Courts and cannot be entertained in the County[855]. So far the Mirror falls in with the usual exposition of our Authorities—it takes notice of two facts which are generally recognised as important features in trying a question of status. But the Mirror does not stop there, but further formulates an assertion which cannot be considered as generally accepted in practice, though it may have emerged now and then in pleadings and even in decisions.
It is well known, that the main argument in a trial of villainage turned on the question of kinship. As Britton (pp. 205, 206, ed. Nichols) states the matter, we are led to suppose that the plaintiff had to produce the villain kinsmen of the person claimed, and the defendant could except against them. Glanville (v. 4) says, that both parties had the right to produce the kindred and in case of doubt or collision a jury had to decide. If the fact of relationship were established on both sides, it was necessary to see on which side the nearer relatives stood. Legal practice, so far as we can judge from the extant plea rolls, followed Glanville, although questions arising from these suits were much more varied and complicated than his statement implied. (See, for instance, Bracton's Note Book, 1041, 1167.) But in the Mirror we find the distinct assertion, that if the defendant in a case of 'nativity' succeeded in proving a free stem in any generation of his ascendants, this was sufficient to prove him free[856]. This connects itself with the view, that there can be no prescription against free blood, a view which, as we have seen in the text, was in opposition to the usual conception that people may fall into servitude in the course of several generations of debasement. The notion embodied in the Mirror was lingering, as it were, in the background.
In accordance with this liberal treatment of procedure, we find our author all in favour of liberty when treating of the ways by which bondage may be dissolved. He gives a very detailed enumeration of all such modes of enfranchisement, and at least one of his points appears unusual in English law. I mean his doctrine that a serf ejected from his holding by the lord becomes free, if no means of existence are afforded to him[857].