Statusový spor o slobodu v Anglicku

Unfree personal status in feudal Europe has witnessed two separate modes of development distinguished by the East/West divide. While the usual mode of development in Western Europe has been a piecemeal abolition of villeinship or of servitude as its harsher form at the very least, Eastern European development has been characterised by the expansion of servitude and general deterioration of the legal status of the unfree persons. The article focuses on the procedural aspects of legal emancipation of unfree persons under the common law of England. After setting the scene of inquiry with a brief comparison of analogous proceedings under the classical Roman law and with an introduction to the medieval common law system of pleading and counting, the article continues with a more detailed analysis of the proceedings initiated under the writ de native habendo, the main form of common law action used to sue inter alia for personal freedom, and related interlocutory writs (i.e. forms of action). The analysis of this writ deals separately with the initiation of prejudicial and judicial proceedings and with the problem of allocation of burden of proof. The focus on evidence admissible during the trial is justified by the fact that the burden of proof becoming ever more onerous for the suing lords has played with the passage of time a vital role in the effective decline and disappearance of unfree personal status in England. The article concludes with an analysis of other writs which could be used to determine personal status usually in the form of a prejudicial question. These were mainly various forms of trespassory writs that were used by the alleged villeins against lords claiming power over them. The synergic effect of all these writs has led in England to the curious development that the legal status of villeinship has never been statutorily abolished and therefore still forms an obsolete part of the substantive English common law.