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[001] he has enclosed, breaks down his hedges and levels his banks and walls by force which
[002] cannot be resisted, a writ of the lord king lies for the lord in this form.

Writ on the constitution of Merton, which was then provided by William Ralegh, then justiciar.1


[004] ‘The king to the sheriff, greeting. It has been shown to us on behalf of A. that though
[005] it was provided and granted in our court before us and our council that the magnates
[006] of England and knights and others who have enfeoffed their free tenants of small
[007] tenements in their manors may employ to their own advantage the residue of their
[008] manors, as in wastes, woods and pastures, if their feoffees have sufficient pasture, as
[009] much as is proper to their tenements, with free ingress and egress, and A. has kept
[010] his park (or ‘his wood’ or the like) enclosed for a long time, B., who holds a small tenement
[011] in that same vill (or in another) of the fee of the same A., by reason of an assise
[012] of novel disseisin recently taken between the same B. and A.2 with respect to the
[013] common of pasture of the same B., which he said belongs to his free tenement in that
[014] same vill, does not permit A. to keep his park enclosed but breaks down his hedges
[015] and banks, despite the fact that he can have sufficient common of pasture outside
[016] that park (or ‘wood’), as much as is proper for his tenement, with free ingress and
[017] egress, we therefore order you to go in your own person, taking with you free and
[018] lawful men of the near neighbourhood by whom the truth of the matter etc. to such
[019] a vill and by their oath etc. whether the aforesaid B. may have sufficient pasture outside
[020] the aforesaid park (or ‘wood’), as much as is proper for his tenement in the same
[021] vill, with free ingress and egress, or not. And if you find this to be the case, then cause
[022] the same A. to have his peace therein. Lest we hear further etc. Witness etc.’ We
[023] must first see how this constitution is to be understood, lest by being misunderstood
[024] it lead those using it into error. We must see whether he whom the constitution restrains
[025] is the lord's own free man or another's. If another's, the constitution does not
[026] put a law upon him, not only because he may have that servitude throughout the
[027] fee by consent and agreement, which cannot be extinguished except by a contrary
[028] agreement and dissent,3 but also because he was not enfeoffed by the owner so that
[029] he may be restricted to a certain and fixed number of beasts in accordance with the
[030] size of his tenement. Hence if the lord and owner wishes to appropriate and enclose
[031] something for himself he cannot do so without the agreement and consent of the
[032] aforesaid; if he does, they will recover by the assise.



Notes

1. After 1239

2. Letters reversed

3. Supra 178


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