3i6 THE ROAD TO FREEDOM
Unfortunately we do not know how this action was concluded,
and can only admire the resourcefulness of the attorney's
pleading and the skilful way in which he tried to dispose of his
opponents. Generally the records do not give us so detailed an
account as this, but merely say that the kinsmen were produced
against the man and he was found to be of servile condition.1
But the brevity of the record must often hide pleas as elaborate
as the one set out above; we have only to look at, Bracton's
treatise to see this, where on turning to Book iv, chapter 23, we
may read of the difficulties of pleading when villein status was in
question, and from which it is obvious a clever attorney could
put up a bewildering variety of defences. In his earlier account
Britton says that the defendant shall "aid himself with excep-
tions to the judge, and then to the person of the plaintiff, and
afterwards to his own person; and next by exception to the writ
if there is any defect or error; and afterwards to the declaration,
if there is any defect, omission, or variance in it; and lastly to the
action".2 He then gives an example of how to except against
the kinsmen, which evidently was in the mind of the attorney
who defended William, son of Siward, and goes on to an elaborate
exposition of other defences which could be urged.
One more point may be noted. We have extant a considerable
number of cases in which the lord failed to prosecute when it
came to the day of the Assize.3 They are not sufficient, perhaps,
to afford good grounds for any argument, but the comparative
frequency of these defaults encourages the belief that the writ
was sometimes used ad terrorem, in the hope that the serf would
not face the dangers, anxiety and expense of an assize. The
default of the lord automatically ended his claim, and he was at
once subjected to a fine for false plea, and the Sheriff instructed
to see that he ceased to aggrieve the defendant in the future.4
Here our enquiry may well end. The courts of the fourteenth
century and later were making it more and more clear that serf-
dom was repugnant to the law of England, whatever precedents
drawn from Roman Law, or the subtle arguments of theologians
1 See e.g. BJV.B. No. 1005; Cttria Regis Rolls, i, 22, 45, 67, 187, 263.
* Britton, I, 206. For a good example see North. Assize Rolls, 195.
8 For such cases see, e.g., B.N.B. No. 1934; Line. Assize Rolls, 32, 35;
Lane. Assize Rolls, 28, 34; North. Assize Rolls, 25, 38, 61, 156, 170, 172, 177*
* Britton, i, 202; cf. B.N.B. No. 1934.