Bracton: Thorne Edition: English. Volume 3, Page 179

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Volume 3, Page 179

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[001] assise of novel disseisin would lie for the owner of the tenement, if it were done by
[002] force, just as conversely¹ the assise of novel disseisin of common of pasture would lie
[003] for him to whom the servitude is owed. There is, however, a certain constitution called
[004] the constitution of Merton, by which common may be restricted, depending on the
[005] modus and constitution of the servitude,² even against the will of him to whom the
[006] servitude is owed. We must first see what the nature of that constitution is. It is as
[007] follows.

Of the constitution of Merton by William of Ralegh, then justiciar.

[009] ³Because there are many magnates who have enfeoffed their knights and free tenants
[010] of small tenements in their manors, and are so hindered by them that they cannot use
[011] the remainder of their manors advantageously, as in wastes, woods and great pastures,
[012] despite the fact that the same feoffees may have sufficient pasture, that is, as
[013] much as is proper for their tenements, it is therefore provided and granted by us⁴ that
[014] henceforth when such feoffees, no matter by whom enfeoffed, arraign assises⁵ of novel
[015] disseisin of common of pasture against their lords on the ground that they have put
[016] into cultivation some part of their aforesaid tenements, if they acknowledge before
[017] the justices that they have sufficient pasture, as much as is proper to their tenement,
[018] with free ingress and egress, and a way or road for driving cattle from their tenements
[019] to that pasture, let them [then] rest content with that and let those of whom they
[020] complain be left undisturbed, that they may use to advantage their lands, wastelands
[021] and pastures. If they say that they do not have sufficient pasture, as much as
[022] is proper for their tenements, with sufficient ingress and egress, let the truth then be
[023] investigated by an assise. If it is recognized by the assise that their lords⁶ in some way
[024] hinder their ingress or egress, or that they do not have sufficient pasture, according
[025] to what was said above, let the plaintiffs then recover their seisin by view of the
[026] recognitors, so that by their judgment and oath the plaintiffs may have sufficient
[027] pasture, with sufficient and adequate ingress and egress in the manner aforesaid, and
[028] let the disseisors be in mercy and render damages, as was customarily done before
[029] this provision. But if it is recognized by the assise that the plaintiffs have sufficient
[030] pasture, with free entry and exit, according to what was said above, then let the
[031] lords lawfully employ the residue to their advantage. If any free man is enfeoffed
[032] by another and, by reason of an assise taken, or for some other reason, or without
[033] any reason, restrains his lord from enclosing, or if when

Notes

1. ‘in contrarium,’ from line 1

2. ‘secundum modum . . . servitutis,’ from line 3

3. Cal. Cl. Rolls, 1234-37, 338; Merton, ca.4: Statutes of the Realm, i, 2

4. ‘a nobis,’ as roll

5. ‘assisas,’ as roll

6. ‘ipsi,’ as roll