Bracton: Thorne Edition: English. Volume 2, Page 110

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Volume 2, Page 110

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[001] it is better and safer that the case proceed before the king himself. ¹<No one may
[002] pass upon the king's act [or his charter] so as to nullify it,² but one may say that the
[003] king has committed an injuria,³ and thus charge him with amending it,⁴ lest he
[004] [and the justices]⁵ fall into the judgment of the living God because of it. The king
[005] has a superior, namely, God.⁶ Also the law by which he is made king.⁷ Also his
[006] curia, namely, the earls and barons,⁸ because if he is without bridle, that is without
[007] law, they ought to put the bridle on him. [That is why the earls are called the
[008] partners, so to speak, of the king;⁹ he who has a partner has a master.]¹⁰ When¹¹
[009] even they, like the king, are without bridle, then will the subjects cry out and say
[010] ‘Lord Jesus, bind fast their jaws in rein and bridle.’¹² To whom the Lord [will
[011] answer], ‘I shall call down upon them a fierce nation and unknown, strangers from
[012] afar, whose tongue they shall not understand,¹³ who shall destroy them and pluck
[013] out their roots from the earth.’¹⁴ By such they shall be judged because they will not
[014] judge their subjects justly, and in the end, bound hand and foot, He shall send them
[015] into the fiery furnace and into outer darkness, where there will be wailing and
[016] gnashing of teeth.>¹⁵

Since a thing certain must be given, the services which must come in exchange for it should be certain.

[018] ¹⁶If a person makes a gift of a thing certain for a future causa, what must be furnished
[019] the donor in return for the thing must be certain, as where a gift is made
[020] for homage and service.¹⁷ ¹⁸or for service alone without homage.¹⁹ A gift for homage
[021] and service may properly be made from a military fee, but homage is improper
[022] from socage since not homage but only fealty ought thence to be done.²⁰ If homage
[023] is in fact done, it does not follow that wardship and marriage therefore belong to
[024] the chief lord,²¹ for these do not follow invariably upon homage, to whom they
[025] belong being determined not by homage but the service by which the tenement is
[026] held, military service or socage. Who is bound to do homage and fealty and who not,
[027] and what follows upon homage, will be explained more fully below [in the portion]
[028] on homages.²² ²³<as where [a father] makes a gift to his first-born son and heir lest
[029] [at the father's death] the heir be excluded by the homage, or where an older makes
[030] a gift to his younger brother [lest the older be barred by the homage] from succeeding²⁴
[031] if his donee dies without an heir of his body. [A father] may make a gift to his
[032] younger son so that his older is not excluded from the inheritance, as where he makes
[033] it in these words, ‘I give to such a one, my younger son, for his service, so much land,
[034] to him and his heirs, to hold of me

Notes

1. Supra i, 124-5 (full collation), 332, 378; Schulz in E.H.R., lx, 144-5, 173-5; supra 33, n. 19, 109, n. 18

2. Supra 21

3. ‘iniuriam’ for ‘iustitiam’; om: ‘et bene ... quod male,’ made necessary by the misreading; Schulz, 173

4. Supra 33, infra 169, iii, 43, iv, 159

5. Infra iv, 150: ‘si iustitiariis suis necessitatem imponat rex quod iudicium reddant’

6. Supra 33, infra 157, iii, 43, iv, 159

7. Supra 33, infra 306

8. Infra iii, 43; Richardson in T.R.H.S. (4th ser.) xxviii, 22, Bracton: the problem of his text, 31-5

9. Supra 32

10. ‘Ideo dicuntur comites quasi ... magistrum’; cf. Tierney in Speculum, xxxviii, 314

11. ‘Ubi’; cf. Schulz, 174-5

12. Psl. 31:9

13. Jerem. 5:15

14. Ezech. 17:9

15. Matth. 22:13, 13:42; supra 22

16. Supra i, 132-3 (full collation)

17. Repetition of supra 107, last lines, a connective

18. The portion following belongs supra 107 at n. 22

19. Continued infra n. 23

20. Infra 248

21. Infra 226

22. Infra 225 ff.

23. Supra i, 122-3 (full collation), 378

24. Reading: ‘ne per homagium excludatur heres, vel [si] frater antenatus fratri suo postnato, frater antenatus, a successione’; supra 83, infra 191, 192