Harvard Law School Library

Bracton Online -- English

Previous   Volume 3, Page 181  Next    

Go to Volume:      Page:    




[001] If they are the lord's own free tenants, we must then see how they are enfeoffed,
[002] because not all tenants are restrained by the constitution, nor in every respect. 1[If]
[003] broadly, that is, over the whole and throughout, in all places and for beasts of all
[004] kinds, without limit of number, provided that such common belongs to them by
[005] reason of feoffment and not through use, the aforesaid constitution does not bind
[006] them, because though it remedies an abuse it does not nullify a feoffment, particularly
[007] because of the freely given consent of those who granted the servitude and common.
[008] If they are enfeoffed strictly,2 for a certain and fixed number of beasts, though their
[009] use has been greater and more extensive than was necessary, the constitution binds
[010] them, that they be restricted to a certain place and within a certain area, provided
[011] it is sufficient and adequate, not too far removed, but nearby,3 with free and adequate
[012] entry and exit, which is not burdensome or difficult. And so if he is enfeoffed without
[013] any statement as to number or kind, but ‘with as much pasture as pertains to a
[014] tenement of such size in that vill,’ the constitution binds him, as in the case of express
[015] limitation above, because when the size of the tenement is established the number
[016] of beasts (and also the kind) may easily be determined according to the custom
[017] of the locality. But4 no matter how he has used, and whether5 enfeoffed broadly or
[018] narrowly, if he may be restricted to an adequate place,6 he ought not to be restricted,
[019] to his damage and disadvantage, to a place farther distant, since distance gives rise
[020] to disadvantage. Nor ought he to be restricted (unless he agrees) if access is made
[021] more difficult. Time must be considered, [since every new enactment ought to impose
[022] a rule on future [matters] not on past,]7 that is, how much of the tenement8 lay
[023] uncultivated at the time of the feoffment and how much was reduced to cultivation,
[024] how much was meadow and how much enclosed and fenced in, 9<at all times, or at
[025] its proper time,>10 since no one, by virtue of a general constitution of pasture, may
[026] claim common in any tenement which may be cultivated or enclosed or fenced in. If
[027] one says simply ‘I give you so much land with common of pasture, so much,’ or ‘with
[028] the common of pasture appropriate to so large a tenement in that vill,’ or ‘for a
[029] certain number of beasts,’ or ‘without limit of number,’ this must be understood to
[030] mean the kind of common of pasture which ought to be common and appurtenant to
[031] a free tenement, that is, not in a tenement which may be cultivated [at all times], or
[032] at some time,11 while it is enclosed



Notes

1. Om: ‘Et ideo . . . feoffati fuerint,’

2. ‘feoffati fuerint stricte’

3. ‘ita quod . . . assignetur,’ from line 14

4. ‘Sed’ for ‘si’

5. ‘si’

6. Reading: ‘si feoffatus . . . vel stricte, si loco competente coartari poterit’

7. C. 1.14.7; ‘leges et constitutiones futuris certum est dare formam negotiis, non ad facta praeterita revocari’; om: ‘Item . . . erit,’ a connective

8. ‘quantum tenementi,’ and so in the lines following

9. Supra i, 401, from below

10. Infra 182

11. ‘vel aliquo’


Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College