Bracton: Thorne Edition: English. Volume 2, Page 109

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Volume 2, Page 109

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[001] of the church or the like; if when the donor claims the tenant says that he holds
[002] the whole, he must produce¹ the charter to prove his exception; if he does not
[003] his exception will be void and he will lose² as though without defence. If he
[004] cannot produce the charter because he does not have it ready, recourse must of
[005] necessity be had to the country. And so if he alleges an accidental loss and proves
[006] the accident.³ ⁴[It is clear that there are three kinds of private instruments, for⁵
[007] sometimes one makes a writing in his own interest, to which no credit will be given;
[008] sometimes against his own interest, to which credit will be given; and sometimes
[009] in another's favour as well as his own, against his own interest as well as for it.⁶
[010] [Such a document] is common and of it [something] is said above;⁷ it is with such
[011] that [the portion] on agreements made between private persons is concerned.⁸
[012] ⁹A writing of that kind is called a chirographic charter, which is cut through the
[013] middle,¹⁰ one portion remaining with one party, the other with the other.] Hence,
[014] though it is not usual, the necessity of considering such private agreements is
[015] sometimes imposed upon the king's court,¹¹ ¹²for it is not lawful for either of the
[016] parties to withdraw from agreements, since if one withdraws the other is aided by an
[017] action based on the agreement, as will be explained below.¹³ ¹⁴And note that a party
[018] shall make available to his adversary all private writings he wishes to use on his own
[019] behalf in a judicial proceeding, [to be used] against himself. But the demandant
[020] cannot ask that the tenant's deeds be produced in order to found his case upon them,¹⁵
[021] for one is not bound to arm his adversary against himself, ¹⁶unless his deeds are
[022] common. Nor may the tenant claim that the demandant's deeds be produced to
[023] prove his exception,¹⁷ as was said above, unless they are common.

That the justices must not question royal charters nor pass upon them.

[025] ¹⁸Private persons cannot question the acts of kings,¹⁹ nor ought the justices to discuss
[026] the meaning of royal charters: not even if a doubt arises in them may they
[027] resolve it; even as to ambiguities and uncertainties, as where²⁰ a phrase is open to
[028] two meanings, the interpretation and pleasure of the lord king must be awaited,
[029] since it is for him who establishes to explain his deed.²¹ And even if the document is
[030] completely false, because of an erasure or because the seal affixed is a forgery,

Notes

1. Reading: ‘et si cum donator petat tenens dicat se totum tenere, ostendere’

2. ‘amittet’

3. Infra iv, 217

5. ‘nam’, as Tancred

4-6. Tancred, 250; Richardson in Traditio, vi, 72

7. Supra 108

8. Supra 70, infra 284 ff.

9-10. Tancred, 250

11. Reading: ‘Et unde quamvis non solet aliquando ... discutere,’; Glanvill, x, 8, 18: ‘privatas conventiones non solet curia domini regis tueri’

12-13. Reading: ‘non licet ... a conventionibus recedere, cum (for ‘tamen’) si quis ... inferius dicetur’

14-15. Tancred, 251-2; Richardson in Traditio, vi, 72

16-17. Ibid.

18. Supra i, 131-2 (full collation). This portion including the addicio following detached from supra 33, n. 19. Its new place required recasting to give prominence to charters rather than acts. E. Kantorowicz, 158 n.; Lewis in Speculum, xxxix, 257 n., 262 n.

19. Supra 33, infra 169, iv. 159

20. ‘ut si’

21. Drogheda, 132: ‘cum eius sit interpretari cuius fuit condere,’ 342, 355; not D. 46.5.9; infra 302