Page images

Institutes, Digest, or Code of Justinian ; more often the form of the passage is slightly altered, but the substance remains. In arrangement and in phraseology, in casual words and turns of expression, the debt to the Roman lawyers is everywhere apparent. This is however less conspicuous in the extracts given below, relating to the law of land, than in most of the remainder of his work. The very different juristic conceptions prevailing in this branch of the law, which were due to feudalism, did not admit of any thorough application of the rules of Roman law. Many instances however will be found in the following extracts from Bracton of the application to English law of conceptions and terms borrowed from the Roman.



Magna Carta.

The edition of Magna Carta with which most editions of the 1. Statutes commence is that issued in the ninth year of Henry III, A.D. 1225. The Charter was first issued by John in 1215: it was reissued in the first year of Henry III, 1216; again in 1217; and again in 1225. There are variations, in some cases of some importance, between the different editions. The following extracts contain the principal provisions of the Charter bearing upon the private law of land. It will be seen that the statute law of the reigns of John, Henry III, and Edward I is characterised throughout by marks of the influence of the great lords (domini capitales). It was the interest of these great tenants in capite at once to restrict the oppressive rights of the Crown (and to that extent no doubt the inferior tenants participated in the benefit of the legislation), and also to protect and enhance the rights of lords of manors as against their tenants.

The former characteristic is conspicuous in the following provisions of Magna Carta, the latter in the statutes of Merton, De Religiosis, De Donis, and Quia Emptores.

§ 1. Reliefs. The following provisions fix the amount due by way of relief on the succession of the heir of the tenant, and the conditions under which it is to be exacted".

land Magna CARTA (John, A.D. 1215), c. ii. Si quis comitum vel baronum nostrorum, sive aliorum tenentium de nobis in capite per servitium militare, mortuus fuerit, et, cum decesserit, haeres suus plenae aetatis fuerit et relevium debeat, habeat haereditatem suam per antiquum relevium scilicet haeres vel haeredes comitis de baronia comitis integra per centum libras ; haeres vel haeredes militis de feodo militis integro per centum solidos ad plus; et qui minus debuerit minus det secundum antiquam consuetudinem feodorum.

c. iii. Si autem haeres alicujus talium fuerit infra aetatem et fuerit in custodia, cum ad aetatem pervenerit, habeat haereditatem suam sine relevio et sine fine.

In the first charter of Henry III issued in 1216 and in the subsequent editions the latter article appears with the following addition :

c. iii. Si autem haeres alicujus talium fuerit infra aetatem, dominus ejus non habeat custodiam ejus nec terrae suae, antequam homagium ejus ceperit; et postquam talis haeres fuerit in custodia, cum ad aetatem pervenerit, scilicet viginti unius anni, habeat haereditatem suam sine relevio et sine fine, ita tamen quod si ipse, dum infra aetatem fuerit, fiat miles, nihilominus terra remaneat in custodia domini sui usque ad terminum praedictum.

TRANSLATION? c. ii. If any of our earls or barons, or any other which hold of us in chief by knight's service, die, and at the time

1 As to reliefs, see above, pp. 40, 79.

2 The translations of the statutes given in this Chapter and in Chapter IV are taken from the Statutes of the Realm,

of his death his heir be of full age, and oweth to us relief, he / Canl 10. shall have his inheritance by the old relief; that is to say, the I non hocchi heir or heirs of an earl, for a whole earldom, by one hundred

Karel to si pound 1 ; the heir or heirs of a baron, for a whole barony, by one hundred marks; the heir or heirs of a knight for one whole knight's fee, one hundred shillings at the most ; and he that hath less shall give less, according to the old custom of the fees.

c. iii. But if the heir of any such be within age, his lord shall not have the ward of him, nor of his land, before that he hath taken of him homage; and after that such an heir hath been in ward, when he is come to full age, that is to say, to the age of one and twenty years, he shall have his inheritance without relief and without fine; so that if such an heir, being within age, be made knight, yet nevertheless his land shall remain in the keeping of his lord unto the term aforesaid.

§ 2. Guardian and Ward?. MAGNA CARTA (1215), c. iv. Custos terrae hujusmodi haeredis qui infra aetatem fuerit, non capiat de terra haeredis nisi rationabiles exitus, et rationabiles consuetudines, et rationabilia servitia, et hoc sine destructione et vasto hominum vel rerum; et si nos commiserimus custodiam alicujus talis terrae vicecomiti vel alicui alii qui de exitibus illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis hominibus de feodo illo, qui de exitibus respondeant nobis, vel ei cui eos assignaverimus ; et si dederimus vel vendiderimus alicui custodiam alicujus talis terrae, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam, et tradatur duobus legalibus et discretis hominibus de feodo illo, qui similiter nobis respondeant, sicut praedictum est.

C. V. Custos autem, quamdiu custodiam terrae habuerit, sustentet domos, parcos, vivaria, stagna, molendina, et cetera ad

1 The translation, which is that of the 'Inspeximus' of the Charter of 1225 in 25 Ed. I, is from the text · haeres vel haeredes comitis de comitatu integro per centum libras, haeres vel haeredes baronis de baronia integra per centum marcas' etc.

See above, pp. 42, 81.

terram illam pertinentia, de exitibus terrae ejusdem ; et reddat haeredi, cum ad plenam aetatem pervenerit, terram suam totam instauratam de carrucis et wainnagiis secundum quod tempus wainnagii exiget et exitus terrae rationabiliter poterunt sustinere?

In the charter of 1216 are added the words, -et omnibus aliis rebus ad minus secundum quod illam recepit. Haec omnia observentur de custodiis archiepiscopatuum, episcopatuum, abbatiarum, prioratuum, ecclesiarum et dignitatum vacantium, excepto quod custodiae hujusmodi vendi non debent.

C. xxxvii. Si aliquis teneat de nobis per feodifirmamo, vel per socagium, vel per burgagium, et de alio terram teneat per servitium militare, nos non habebimus custodiam haeredis nec terrae suae quae est de feodo alterius, occasione illius feodifirmae, vel socagii, vel burgagii ; nec habebimus custodiam illius feodifirmae, vel socagii, vel burgagii, nisi ipsa feodifirma debeat servitium militare. Nos non habebimus custodiam baeredis vel terrae alicujus, quam tenet de alio per servitium militare, occasione alicujus parvae sergenteriae * quam tenet de nobis per servitium reddendi nobis cultellos, vel sagittas, vel hujusmodi.


c. iv. The keeper of the land of such an heir, being within age, shall not take of the lands of the heir but reasonable issues, reasonable customs, and reasonable services, and that without destruction and waste of his men and his goods. And if we commit the custody of any such land to the sheriff, or to any other which is answerable unto us for the issues of the same

1 By 3 Edward I, cap. 48, it is provided that if the guardian make a feoffment of the land the heir can recover against both guardian and feoffee by assize of novel disseisin, and the guardian shall lose the custody of the land. If the guardian be other than the chief lord, he is besides to be 'grievously punished by the king' (soit en greve peine denvers le roi).

? See these provisions re-enacted 3 Edward I, cap. 21.

3 • Fee farm,' that is, where a rent is reserved to the grantor in perpetuity out of the fee simple when it is granted away. See Butler's note (5) to Coke upon Littleton, 143 b, and Blackstone, ii. 43.

* As to petit serjeanty see above, p. 49.

land, and he make destruction or waste of those things that, he hath in custody, we will take of him amends and recompense thereof, and the land shall be committed to two lawful and discreet men of that fee, which shall answer unto us for the issues of the same land, or unto him whom we will assign. And if we give or sell to any man the custody of any such land, and he therein do make destruction or waste, he shall lose the same custody; and it shall be assigned to two lawful and discreet men of that fee, which also in like manner shall be answerable to us as afore is said.

c. v. The keeper, so long as he hath the custody of the land of such an heir, shall keep up the houses, parks, warrens, ponds, mills, and other things pertaining to the said land, with the issues of the said land ; and he shall deliver to the heir, when he cometh to his full age, all his lands stored with ploughs, and all other things, at the least as he received it. All these things shall be observed in the custodies of Archbishopricks, Bishopricks, Abbeys, Priories, Churches, and Dignities vacant, which appertain to us, except this that such custody shall not be sold.

C. xxxvii. If any do hold of us by fee-ferm, or by socage, or burgage, and he holdeth lands of another by knight's service, we will not have the custody of his heir, nor of his land, which is holden of the fee of another, by reason of that fee-ferm, socage or burgage; neither will we have the custody of such fee-ferm, or socage, or burgage, except knight's service be due to us out of the same fee-ferm. We will not have the custody of the heir, or of any land, by occasion of any petit serjeanty, that any man holdeth of us by service to pay a knife, an arrow, or the like.

§ 3. Marriage. It has already been seen that in the time of Henry II the right of the lord to dispose of his tenant in marriage applied only to female tenants. Glanvill does not speak of this right as a source of profit to the lord, but merely as a security against the lord being obliged to receive the homage of a hostile or unfriendly tenant? That this was the origin of the practice

1 See above, Chap. II. $ 3 (4).

« PreviousContinue »