Bracton: Thorne Edition: English. Volume 2, Page 236

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Volume 2, Page 236

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[001] or his ancestors have been in seisin of that tenement, in demesne or in service.
[002] And if they were once in seisin, it nevertheless will be incongruous to claim by
[003] descent when the tenant is in possession by descent from his ancestors, unless one
[004] says that though nothing of the right descends to him it ought to descend to him
[005] since he has been disavowed. It would seem to be better to claim by writ of escheat,
[006] since homage [and the obligation] fails on the part of the tenant. [The writ] may
[007] be this: ‘Order such a one to render rightfully and without delay to such a one so
[008] much land (or ‘so many fees’) which the aforesaid, such a one, held of him and
[009] whence he did him homage and service, which ought to be his escheat since, wickedly
[010] and to his disherison, the aforesaid, such a one, has disavowed him, contrary to his
[011] homage and the oath of fealty he had sworn. And unless he does so etc.’ Then, as
[012] is evident, when this has been proved by an inquest and jury, there will be no need
[013] to inquire further as to any descent of the right. Whether the proceeding is by
[014] this writ or by writ of right, neither the grand assise nor the duel lie, but a jury
[015] and inquest similar to the grand assise will be taken by these words, ‘whether
[016] he who holds has a greater right to hold that tenement (or ‘fee’) in demesne than
[017] he who claims, to whom the same tenant (or one of his ancestors) thence did homage
[018] and service and whom [the tenant] later wickedly disavowed contrary to his
[019] homage and fealty.’ If this is proved and the tenant holds in demesne the demandant
[020] will recover in demesne; if in service he will recover in service,¹ that the
[021] tenant be removed as mesne, so that henceforth there be no mesne, and let his
[022] tenant, because² of the obligation of the tenement which he formerly held of him
[023] [through a mesne]³ be joined to the first feoffor without mesne. And so [ubi eadem
[024] ratio ibi idem jus] if the tenant has done his lord severe injury or given counsel or aid
[025] to his lord's enemy, unless that is the prince or the chief lord to whom he has done liege
[026] homage.⁴ ⁵And so if he acts against his lord to his disherison, for then it is a just
[027] judgment that the tenant be disinherited, because of the bond of homage he has
[028] broken. And so if he lays violent hands upon his lord etc.⁶ There are many things of
[029] this kind that disinherit a tenant. And finally, it is clear that between tenant and lord
[030] homage always binds and continues as long as heirs on both sides exist⁷ and as
[031] long as the tenant holds, in demesne or in service, the tenement that raises the
[032] obligation of homage,⁸ but if these fail, or any one of them, homage fails and never

Notes

1. Supra 82

2. ‘propter’

3. Infra 245

4. Glanvill ix, 1: ‘Ex hoc liquet quod vasallus non potest dominum suum infestare salva fide homagii sui, nisi forte se defendendo vel nisi ex praecepto principis [quod] cum eo iverit contra dominum suum in exercitum ... si capitalis dominus eius ei praeceperit quod secum in propria persona eat contra alium dominum suum, oportet eum eius praecepto in hoc obtemperare, salvo tamen servitio alterius domini de feodo quod de eo tenet.’; supra 231

5-6. Glanvill ix, 1: ‘Patet itaque ex praedictis quod si quis aliquid ad exheredationem domini sui fecerit, et super hoc convictus fuerit, feodum quod de eo tenet de iure amittet et heredes eius. Idem quoque erit si manus violentas quis in dominum suum iniecerit’

7. Supra 230

8. Supra 231, 233, infra 237