Bracton: Thorne Edition: English. Volume 2, Page 143

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Volume 2, Page 143

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[001] the chief lord may blame himself for ignoring for so long a gift made contrary to
[002] the agreement.] ¹<If a mesne² tenant makes a gift to whom does he commit an
[003] injuria? Not to the lord, because [he loses] nothing to which a chief lord is entitled.³
[004] He has the tenement bound and burdened [in his favour] no matter what may be said
[005] and into whose hands it has come.⁴ Also the feoffee,⁵ because whoever holds his fee
[006] is his tenant,⁶ though through a mesne. And so if he says that he entered wrongfully
[007] into his fee, because it is not his fee in demesne but that of his tenant⁷ and the lord
[008] has nothing in the fee except service,⁸ and thus it will be the tenant's fee in demesne
[009] and the lord's in service, and if he forbids the tenant from doing what he wishes with
[010] the tenement he holds in demesne he enters into his tenant's tenement and commits
[011] a disseisin, unless a modus or a condition added when the gift was first made provides
[012] otherwise,⁹ for anyone may impose a condition and a modus upon his gift, and a law,
[013] which shall always be observed. The fee of the lord, in truth, is this, that [he have]
[014] homage and service and not the tenement in demesne. Therefore he who enters into
[015] his homage and service does him an injuria, not one who enters into the tenement his
[016] tenant holds in demesne, as was said above.>¹⁰ ¹¹because then a wrong is done the lord
[017] if the tenant enfeoffs over contrary to the modus or agreement. It is evident, therefore,
[018] from what has been said above, that when a gift made to a tenant by his lord is
[019] complete, free and absolute, neither conditional nor subject to a servitude, [Thus we
[020] must see what gifts are free and absolute, those that are conditional, and those subject
[021] to a servitude, namely, that the donee do or not be permitted to do.] [With respect
[022] to the word ‘free’ we must see what freedom and servitude are, that we may know
[023] what follows therefrom. What ‘to give’ is was explained sufficiently above.¹² Freedom
[024] is a man's natural power of doing what he wishes, so far as he is not prevented
[025] by law or force.¹³ Servitude may be said to be the contrary, as where, contrary to
[026] [his natural] freedom, he is bound by agreement to do something or not do it.]
[027] ¹⁴that the donee may do what he wishes with the thing given;¹⁵ if he gives it over
[028] no injuria is done his lord since he is deprived of nothing to which he is entitled.

Notes

1. Supra i, 381

2. ‘medius’ for ‘meus’; if a tenant in chief it is otherwise

3. Reading: ‘quia [amittit] nihil quod ad capitalem dominum pertinet’

4. Supra 67, 78, infra iii, 274

5. ‘feoffatum’; om: ‘nec’

6. ‘quia quicumque feodum suum tenuerit sit tenens suus’; supra 83, infra 234

7. Infra iii, 274

8. Ibid.

9. Supra 142

10. Infra 145

11. Reading: ‘quia ex hoc fit domino ... dederit contra modum’

12. Supra 49

13. Inst. 1.3.1: ‘Et libertas quidem est, ex qua etiam liberi vocantur, naturalis facultas eius quod cuique facere libet, nisi si quid vi aut iure prohibetur’; supra 29

14. Om: ‘Cum igitur ... sequatur,’ a connective

15. Supra 68