Bracton: Thorne Edition: English. Volume 2, Page 115

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Volume 2, Page 115

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[001] first of all, if that fee, when it was first given, owed forinsec service or not. If none
[002] was owed from the beginning, unless¹ a certain forinsec service is expressed in the
[003] charter it will never be given, nor can it be claimed, because of the uncertainty. If
[004] none was owed from the beginning, but at the making of the gift it is agreed that
[005] scutage be given and a certain sum is expressed in the charter, it will all have to be
[006] paid. Just as a donor may give more freely than he himself holds and burden himself
[007] and his heirs as against his feoffors,² so may he burden his feoffee with more
[008] services and services different from those he himself owes his own feoffor. For he
[009] can create a military fee out of socage if it is so agreed at the beginning between
[010] himself and his feoffee,³ and conversely. ⁴<But what if the fee of the feoffor owes
[011] no forinsec and the donor gives it for such service? Then it is important [to see]
[012] whether or not it is certain and specified. If uncertain, it cannot be claimed.> If
[013] forinsec service has always been due but no sum certain is expressed in the charter
[014] of gift, it appears at first sight that it cannot be claimed. But in truth it will be taken
[015] that such and so much be rendered as others furnish who hold tenements⁵ by military
[016] service in the same vill or of the same fee. One may give a tenement which he held
[017] by military service to be held in villeinage, by villein customs and services, provided
[018] they are certain and express. If one⁶ says that he gives as freely as any land
[019] may most freely be given, that must be understood with respect to the donor, that⁷
[020] as against his feoffor he will acquit [the donee] of what will belong to him. If the thing
[021] given is burdened as against persons other than his chief lord, by such words he is not
[022] bound to acquit him against them, unless he expressly takes that burden upon
[023] himself.⁸ Then let him defend it against all, if he has the wherewithal; if not, let
[024] him answer for himself. One may give a thing ‘as freely as he ever most freely held
[025] it;’ then, by the modus of the gift, he is bound to free it if at some time he burdened
[026] it or subjected it to a servitude. And so if he says ‘as freely as he or any of his
[027] ancestors most freely held it;’ let the feoffor furnish what he promised. Also ‘[as
[028] freely] as any land or any alms may most freely be given,’ that is [free of] everything
[029] that touches himself and his feoffor, and if he has the wherewithal let him so
[030] acquit it.

Of forinsec services that sometimes are set forth in certain and specified in charters and sometimes are not.

[032] There are some customs that are not called intrinsec or forinsec but are appendages
[033] [to] certain services, as to royal

Notes

1. ‘nisi’

2. Supra 67, 78, infra 146, 147

3. ‘feoffatum,’ all MSS.; or out of villeinage: infra iii, 39, 132

4. Supra i, 378; redundant

5. ‘tenementa’

6. ‘si autem dicat quis quod’

7. ‘ut’ for ‘et’

8. Supra 93, infra 117