Bracton: Thorne Edition: English. Volume 2, Page 52

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Volume 2, Page 52

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[001] improve their position, but they cannot make gifts which will impair it.]¹ They
[002] cannot give because they cannot consent to the making of a gift, with the authority
[003] of their tutor or without it.² Nor can one who is stone deaf, though it is otherwise
[004] if he is only hard of hearing; nor a true mute who cannot speak,³ though, according
[005] to some, such persons may consent by signs and a nod.⁴ ⁵<It is regularly held that
[006] no one can make a gift who cannot give the consent requisite for making it, as
[007] one who is a lunatic [or] insane⁶ (unless he enjoys lucid intervals) or one under
[008] age. The church is always under age.>⁷ One captured by the enemy cannot make
[009] a gift as long as he is under their power, [because he can possess nothing who is
[010] possessed by others,]⁸ ⁹because he possesses nothing [the same may be said of a
[011] bondsman, for the same reason,]¹⁰ while he is possessed by others, [and] he who
[012] possesses nothing cannot make an effective gift.¹¹ According to some, such gifts remain
[013] in suspense until confirmed or completely avoided, but others say nothing in the
[014] past or present may remain in suspense, as will be explained more fully below.¹²
[015] [For this matter [see] the tractate on how gifts invalid at the beginning are made
[016] valid subsequently.]¹³ A leper, put outside the communion of mankind, may not
[017] make a gift, as [in the roll] of Michaelmas term in the seventh and the beginning
[018] of the eighth years of king Henry, near the end of the roll,¹⁴ nor may he sue for one.
[019] ¹⁵Then there are some who may make no gift without the consent of others, [nor
[020] is a gift made by such others good per se,] as where archbishops, bishops, abbots or
[021] priors of churches in the lord king's patronage make a gift; they can give nothing
[022] without the assent of their chapter, nor can they and their chapter together give
[023] without the royal consent,¹⁶ or that of him who is patron, for the consent of all
[024] those whom the matter touches will be necessary and requisite.¹⁷ The same may
[025] be said of rectors of churches, who, possessing nothing except in the name of their
[026] church, can give nothing,¹⁸ nor alien or exchange, without the consent of the bishop
[027] or patron, [unless it is to the advantage of their church; if to its disadvantage
[028] [their act] is invalid,]¹⁹ since the gift is made to them thus,²⁰ especially at the
[029] time of dedication, [and after,] ‘I give to God and to such a church and to the
[030] canons (or ‘monks’ or ‘rectors’ or ‘parsons’) serving God therein,’ so that the gift
[031] is made first and principally to God and the church, secondarily to the canons

Notes

1. Inst. 1.21. pr.; infra 56, cf. 94

2. Infra 56, 286

3. Inst. 2.12.3; Inst. 3.19.7, 8; infra 286

4. D. 39.5.33.2; 44.7.48; infra 286, iv, 178

5. Supra i, 373

6. Infra iv, 308

7. Infra 105, iii, 177, iv, 356

8. D. 41.2.23.1; infra 66, 88, 90, 137

9. Om: ‘nec aliquid . . . effectu,’ a connective

10. Om: ‘quod nihil . . . possidet,’ infra n. 11

11. ‘[et] qui nihil possidet nihil dare potest cum effectu,’ from lines 12 and 13; infra 103, 127

12. Supra 34, infra 71, 285

13. Infra 173-4

14. B.N.B., no. 1648 (not 807); C.R.R., xi, no. 1016; infra iv, 292, 309

15. New paragraph

16. Infra 63

17. Quod omnes tangit; infra 63, iv, 293

18. Infra 53

19. X 3.24.2: ‘condicionem ecclesiae meliorare potest, facere vero deteriorem non debet’

20. ‘sic’ for ‘sicut’