Bracton: Thorne Edition: English. Volume 4, Page 283

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Volume 4, Page 283

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[001] The truth is that it cannot, because the requirement that he change his jurisdiction
[002] cannot be imposed on the king, as was briefly explained above.¹ Nor may it be
[003] changed by the modus of a gift or by an agreement between private persons, though
[004] he who imposes a modus prejudices himself and his people,² as where a private person
[005] makes a gift to a bastard and his heirs and to whom he wishes to give or assign. If the
[006] bastard had no heirs [of his body] the land would revert to the donor, but because the
[007] donor adds the modus that he may give or assign, a gift and assignment which would
[008] otherwise be invalid will be good.³ Similarly, it seems, he may add that the bastard
[009] may devise, [but by the addition of this modus the royal jurisdiction is not changed
[010] and the matter will be determined in the king's court, if the devisee is out of seisin, by
[011] this writ: ‘Order etc. which ought to revert to such a one by the modus of the gift
[012] which such a one made to him, that he could give, assign and devise,’]⁴ because for
[013] the same reason that by the modus of a gift a bastard may give and assign, though he
[014] has no heirs, he may devise,⁵ so that the thing given may [never] revert to him or his
[015] heirs, because no injuria is done them since the donor so wished,⁶ and nevertheless
[016] the heirs are bound to warrant the legatee though heirs of the bastard fail.⁷ And what
[017] is said of a bastard may also be said of one who is legitimate, because law and a modus
[018] may be imposed on all men, whether the donee is a free man or a villein, legitimate
[019] or a bastard, because both donor and donee must do what is agreed, since both so
[020] wished from the beginning. A contract sometimes changes the jurisdiction, sometimes
[021] a delict, as where a clerk contracts with a layman, he must be sued where the
[022] contract was made or where he committed the delict,⁸ [provided it is sued civilly and
[023] not for the purpose of inflicting corporal punishment,]⁹ unless degradation or other
[024] capitis diminutio [follows]. Sometime the privilege of the clerical order changes the
[025] jurisdiction, as where clerk sues clerk in an actio injuriarum,¹⁰ or with respect to
[026] things that are spiritual, as tithes and the like, or other movables belonging to
[027] clerks, as chattels and debts,¹¹ where

Notes

1. Supra 251, 268

2. Supra ii, 67, 70, 75, iii, 265

3. Supra ii, 75

4. Supra ii, 70

5. Cf. supra ii, 149

6. Supra ii, 67; D. 39.3.9.1

7. Supra 194

8. Supra 249, 265, 278

9. Supra 250, 265

10. Cf. supra 250, 265, 278, infra 373

11. Cf. supra 249, 254, 263-4