Bracton: Thorne Edition: English. Volume 2, Page 57

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Volume 2, Page 57

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[001] he holds in common just as he may a thing he holds separately and by himself.¹
[002] Also land another holds for a term of years, saving to the farmer his term, for these
[003] two possessions of a single thing are compatible with one another, [that is], that
[004] one have the free tenement and the other a term.² One may give effectively what
[005] is one's own and the gift will not be recalled. Another's property one cannot give
[006] effectively, for it may be recalled,³ but it will be good as regards his feoffee, [to the
[007] extent] that he have escambium.⁴ ⁵<[How may land be given]? In many ways,
[008] sometimes in fee, sometimes⁶ for life, sometimes in fee farm, sometimes for a term
[009] of life or years. If for life, no matter in what way, the donee has a free tenement at
[010] once, and if ejected may recover by the assise of novel disseisin.⁷ He to whom it
[011] has been so given may give it to another for life if he wishes, or in fee, but the
[012] gift may be revoked.⁸ But if he who holds for life makes a gift to another of the
[013] land he holds for life in this way and by these words, ‘I give and grant to such a
[014] one all the right I have in such land,’ though he has a free tenement he does not
[015] cause his donee to have one, because by saying, ‘I give you my right,’ that is, such
[016] land for my life, that is, the donor's life, nothing is done for the life of the donee.
[017] The reason why the donor, though he had a free tenement, could not cause his donee
[018] to have a free tenement by these words, though the free tenement he did not have he
[019] could cause the donee to have if he had said ‘I give you this thing in demesne’⁹ or
[020] ‘in fee,’ is because that would not be his right but a wrong. His right was this, to give
[021] what he had, that is, the land for his life, the donor's life, not the donee's, for to do the
[022] latter would be wrongful rather than rightful,¹⁰ and by force of that he could not
[023] have a free tenement. In general, provided the tenant holds it in his own name, a
[024] thing, no matter how acquired, by disseisin or intrusion or in any other way, may be
[025] given, and [he can] cause the donee to have the free tenement he himself does not
[026] have: at once as between themselves, but not as against the true lord.>¹¹

[What things may not be given.]

[028] A thing which cannot be possessed cannot be given, as a sacred or holy thing,
[029] [or a quasi-sacred thing, as one connected with the fisc, or things which are
[030] quasi-sacred, as the walls and gates of a city.]¹² Such may neither be given nor
[031] possessed because they are the property of no one, that is, of no individual person,
[032] only that of God,¹³ [or the fisc.]

Notes

1. Supra 56, infra 139

2. Infra 92, 107, 138, iii, 162, iv, 22; B.N.B., no. 1290

3. Supra 49, 50

4. Infra 127

5. Supra i, 374

6. ‘quandoque,’ all MSS.

7. Infra 101, 127

8. Supra 50, infra 103, iii, 19

9. ‘dominico’

10. Supra 50

11. Supra 51, infra 102, 157

12. City walls and gates are quasi-sacred: infra iii, 40, 61; sacred: supra 40, 41, infra iii, 128, 136 and Inst. 2.1.10. E. Kantorowicz, 187, n. 302

13. Supra 40, infra 137, iii, 130, 136