TRANSLATION.

c. xxxix. No freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongeth to the fee.

§ 8. Mortmain1.

MAGNA CARTA (1217), c. xliii. Non liceat alicui de cetero dare terram suam alicui domui religiosae ita quod illam resumat tenendam de eadem domo. Nec liceat alicui domui religiosae terram alicujus sic accipere quod tradat eam illi a quo eam receperit tenendam. Si quis autem de cetero terram suam alicui domui religiosae sic dederit et super hoc convincatur, donum suum penitus cassetur et terra illa domino suo illius feodi incurratur.

TRANSLATION.

c. xliii. It shall not be lawful from henceforth to any to give his lands to any religious house, and to take the same land again, to hold of the same house. Nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom they were received to be holden. If any from henceforth so give his lands to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee.

§ 9. Rights of the Lord of a Manor over the Waste?.

STATUTE OF MERTON, 20 Henry III, c. iv. Item quia multi magnates Angliae, qui feoffaverint milites et libere tenentes suos de parvis tenementis in magnis maneriis suis, questi fuerunt quod commodum suum facere non potuerunt de residuo maneriorum suorum, sicut de vastis, boscis, et pasturis, quum ipsi feoffati habeant sufficientem pasturam, quantum pertinet

1 For the law of mortmain and the construction of this enactment, see below, Chap. IV. § 2.

2 See below, § 18 (2).

ad tenementa sua: ita provisum est et concessum, quod quicunque hujusmodi feoffati assisam novae disseisinae deferant de communia pasturae suae, et coram justiciis recognitum fuerit quod tantam pasturam habeant quantum sufficit ad tenementa sua, et quod habeant liberum ingressum et egressum de tenementis suis usque ad pasturam suam, tunc inde sint contenti, et illi de quibus conquesti fuerint recedant quieti de hoc quod commodum suum de terris, vastis, boscis, et pasturis fecerint. Si autem dixerint quod sufficientem pasturam non habeant, vel sufficientem ingressum vel egressum, quantum pertinet ad tenementa sua, tunc inquiratur veritas per assisam. Et per assisam recognitum fuerit, per eosdem quod in aliquo fuerit impeditus eorum ingressus vel egressus, vel quod non habeant sufficientem pasturam et sufficientem ingressum et egressum sicut praedictum est, tunc recuperent seisinam suam per visum juratorum : ita quod per discretionem et sacramentum eorum habeant conquerentes sufficientem pasturam et sufficientem ingressum et egressum in forma praedicta; et disseisitores sint in misericordia domini regis, et dampna reddant sicut reddi debent ante provisionem istam. Si autem recognitum fuerit per assisam quod querentes sufficientem habent pasturam, cum libero et sufficienti ingressu et egressu ut praedictum est; tunc licite faciant alii commodum suum de residuo, et recedant de illa assisa quieti.

TRANSLATION.

c. iv. Also because many great men of England, which have infeoffed knights and their freeholders of small tenements in their great manors, have complained that they cannot make their profit of the residue of their manors, as of wastes, woods, and pastures, whereas the same feoffees have sufficient pasture as much as belongeth to their tenements; it is provided and granted, That whenever such feoffees do bring an assize of novel disseisin for their common of pasture, and it is knowledged before the Justicers, that they have as much pasture as sufficeth to their tenements, and that they have free egress and regress from their tenement unto the pasture, then let them be contented therewith; and they on whom they have complained shall go quit for that they have made their profit of their lands, wastes, woods, and pastures; and if they allege that they have not sufficient pasture, or sufficient ingress and egress according to their hold, then let the truth be

inquired by assize, and if it be found by the assize that the same deforceors have in any thing disturbed them of their ingress and egress, or that they had not sufficient pasture, as before is said, then shall they recover their seisin by view of the inquest, so that by their discretion and oath the plaintiffs shall have sufficient pasture, and sufficient ingress and egress in form aforesaid; and the disseisors shall be amerced, and shall yield damages as they were wont before this provision. And if it be certified by the assize that the plaintiffs have sufficient pasture with ingress and egress, as before is said, let the other make their profit of the residue, and go quit of that assize.

SECTION II.

EXTRACTS FROM BRACTON.

§ 10. Growth of Judiciary Law.

The following passage, taken in connexion with the extract from Glanvill's preface given in the last chapter (§ 1), illustrates what has been said above as to the development of the law at this period by means of recorded judicial decisions.

HENRICI DE BRACTON, De Legibus et Consuetudinibus

Angliae.

Lib. i. Pref. Cum autem fere in omnibus regionibus utantur legibus et jure scripto, sola Anglia usa est in suis finibus jure non scripto et consuetudine. In ea quidem ex non scripto jus venit quod usus comprobavit. Sed absurdum non erit leges Anglicanas (licet non scriptas) leges appellare, cum legis vigorem habeat quicquid de consilio et de consensu magnatum, et rei publicae communi sponsione, auctoritate regis sive principis praecedente, juste fuerit definitum et approbatum. Sunt autem in Anglia consuetudines plures et diversae secundum diversitatem locorum. Habent enim Anglici plurima ex consuetudine quae non habent ex lege, sicut in diversis comitatibus, civita

tibus, burgis et villis, ubi semper inquirendum erit, quae sit illius loci consuetudo, et qualiter utantur consuetudine qui consuetudines allegant1. Cum autem hujusmodi leges et consuetudines per insipientes et minus doctos (qui cathedram judicandi ascendunt antequam leges didicerint) saepius trahantur ad abusum, et qui stant in dubiis et in opinionibus multociens pervertuntur a majoribus, qui potius proprio arbitrio quam legum auctoritate causas decidunt, ad instructionem saltem minorum ego Henricus de Bracton animum erexi ad vetera judicia justorum perscrutanda diligenter, non sine vigiliis et labore, facta ipsorum, consilia et responsa, et quicquid inde notatu dignum inveni, in unam summam redigendo, sub ordine titulorum et paragraphorum (sine melioris sententiae praejudicio) compilavi, scripturae suffragio perpetuae memoriae commendanda.

§ II. Tenures.

The following extracts give the outline of Bracton's division of Tenures. Tenures now fall into two great classes. There had always been a distinction in point of fact between the holding of land by a freeman and the beneficial enjoyment of land permitted to the non-free. In Bracton's time freehold tenure or the holding of land by free services had come to be opposed to the holding of land by non-free services or services unworthy of a freeman. What was formerly a distinction principally affecting the status of the holder comes now to be regarded as the basis of two different classes of rights of property. Dealing first with freehold tenures, Bracton proceeds to enumerate their principal classes,-knight-service, grand serjeanty, socage, and tenure by uncertain but non-military services. The nature of the tenure depends on the service to be rendered in respect of the land. The following passages seem to lead to the following principal conclusions.

(1) Where land is held of a mesne lord by knight-service the actual military service is due, not to the immediate lord, but to

1 As to local custom, see above, pp. 68, 74; below, Chap. V. § 6.

the king1. The only exception to this rule seems to have been when the lord went with the king in propria persona. The theory seems to have been that for every knight's fee the service unius militis for forty days in every year, if called upon, or scutage in lieu thereof, was due to the Crown 2.

(2) Where military service is thus due to the king the tenure is knight-service, and the lord enjoys the valuable incidents of wardship and marriage.

(3) No services of whatever character rendered to the lord in his private capacity are sufficient, according to the better opinion, to give the tenure the character of tenure by knightservice, and consequently to cause the incidents of wardship and marriage to attach. The services must be 'propter exercitum regis et patriae tuitionem.' In the case of freehold tenure where no military service is due a further distinction arises between tenure by uncertain services to be rendered to the lord, and socage tenure. These however probably were generally confounded together, and the distinguishing characteristic was evidently the one of most practical importance,-whether the lord was or was not entitled to wardship and marriage.

(4) Whether the land was held by knight-service or otherwise was a question of evidence to be decided first by reference to the charter by which the land might be burdened with military service or its equivalent, although it had been previously free from burdens, or freed from them, although previously so burdened or if the charter was silent, regard must be had to the character and amount of the services customarily rendered in respect of the land in question, or of land in its neighbourhood. When, as was usually if not always the case (except with the king's own immediate tenants), no actual

1 See above, p. 37.

2 See Coke upon Littleton, 69 a, and Madox, History of the Exchequer, chap. xvi; above, § 5, and Chap. I. p. 62, note 2.

3 Littleton expressly declares (s. 118) that every tenure that is not a tenure in chivalry is tenure in socage.