3io THE ROAD TO FREEDOM
the villein, and a most valuable protection, if he had fallen into
his lord's hands, was to bring a writ of de homine replegiando.
Such a writ ordered the Sheriff to set free the villein from whom-
soever had custody of him, or failing his surrender, to seize the •
person holding the villein, until he produced him.1 Upon the
serf giving security that he would appear to answer the charge of
villeinage brought against him, the Sheriff would free him for the
time being.
An even more powerful weapon was available to the serf in the
shape of the writ de libertate probanda. This was the writ used
by the man who feared his status was in question and was deter-
mined to clear the matter up, once for all, in a court of record;
and it was also the writ used by the man who, rightly or wrongly,
was accused of being a serf, but who believed the lord had in-
sufficient evidence to prove him so.2 Such a writ stayed all
proceedings against him until the next coming of the itinerant
justices. When the case came to trial the lord was under serious
disabilities, because of the growing belief that "judgment must
be given in favour of liberty".3 The onus was upon him to prove
his case, and
the defendant was not called on to plead to the claim of villeinage
unless the Lord at the time of declaring on his title brought his wit-
nesses with him into court, and they acknowledged themselves
villeins, and swore to their consanguinity with the defendant; and if
the plaintiff failed in producing such evidence, the judgment of the
court was that the defendant should be free for ever, and the plaintiff
was amerced for his false claim.4
Further, it was imperative that the kinsfolk produced should not
be less than two in number, and also they must be males, for
women were too frail to stand as witnesses in such a matter.5
Again, the defence was allowed to set up two or three pleas
1 Prof. W. S. Holdsworth says: "As early as the reign of Henry III the
group relating to personal freedom followed the writs connected with waste.
This group naturally attracted others to it. The replevin of a prisoner con-
nects itself with the replevin of cattle. The writs connected with villein
status were also allied." Op, cit. n, 434, and cf. I, 95.
2 This writ was taken away from the serf by 25 Ed. Ill, cap. 18, but the
writ de homine replegiando remained to him. See Rot. Parl. n, 242a.
3 Bracton, op. cit. ff. 191 &, 193.
* Sommersett's Case, fol. 20, State Trials, 43. The pleading of Hargrave
in this case is of great interest and embodies the fullest presentation of the
law and the cases on it that we have. 5 Britton, i> 207.