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• The Materials For English Legal History 1
• Possession For Year and Day 1
• The Introduction of English Law Into Ireland 1
• The Surnames of English Villages 1
• Northumbrian Tenures 1
• The History of the Register of Original Writs 1
• Remainders After Conditional Fees 1
• The “praerogativa Regis 1 ”
• A Conveyancer In the Thirteenth Century 1
• A New Point On Villein Tenure 1
• Frankalmoign In the Twelfth and Thirteenth Centuries 1
• Review of “the Gild Merchant 1 ”
• Henry Ii and the Criminous Clerks 1
• Tenures In Roussillon and Namur 1
• Glanvill Revised 1
• The Peace of God and the Land-peace 1
• History From the Charter Roll 1
• Taltarum's Case 1
• The Survival of Archaic Communities 1
• I.: The Malmesbury Case.
• II.: The Aston Case.
• The History of a Cambridgeshire Manor 1
• The Origin of Uses 1
• Outlines of English Legal History, 560—1600 1
• Old English Law.
• English Aw Under Norman and Angevin.
• The Growth of Jurisprudence. 1154–1273.
• Legal Reform Under Edward I.
• English Law , 1307–1600.

FRANKALMOIGN IN THE TWELFTH AND THIRTEENTH CENTURIES1

At the beginning of the thirteenth century a large and ever-increasing quantity of land was held by ecclesiastics, regular and secular, in right of their churches or religious houses by a tenure commonly known as frankalmoign, free alms, libera elemosina. The service implied by this tenure was in the first place spiritual, as opposed to secular service, and in the second place it was an indefinite service. Such at least was the doctrine of later days2 . We may take this latter characteristic first. At all events, in later days3 if when land was given there was a stipulation for some definite service albeit of a spiritual kind, for example a stipulation that the donee should sing a mass once a year or should distribute a certain sum of money among the poor, the tenure thus created was called, not frankalmoign, but tenure by divine service; the tenant might perhaps be compelled to swear fealty to his lord, and the performance of the service might be exacted by distress or by action in the king's courts1 . On the other hand, if the tenant held in frankalmoign, if the terms of the gift (as was often the case) said nothing of service or merely stipulated in a general way for the donee's prayers, then no fealty was due and only by ecclesiastical censures could the tenant be compelled to perform those good offices for the donor's soul which he had impliedly or expressly undertaken. Perhaps this distinction was admitted during the later years of the period with which we are now dealing; but we shall hereafter see that in this region of law there was a severe struggle between the temporal and the ecclesiastical courts, and very possibly an attempt on the part of the former to enforce any kind of service that could be called spiritual would have been resented. The question is of no very great importance, because stipulations for definite spiritual services were very rare when compared with gifts in frankalmoign2 .

Here, as in France, the word elemosina became a technical word, but of course it was not such originally. At first it would express rather the motive of the gift than a mode of tenure that the gift creates. And so in Domesday Book it is used in various senses and contexts. In some cases a gift has been made by the king “in elemosina,” but the donee is to all appearance a layman; in one case he is blind, in another maimed; he holds by way of charity and very possibly his tenure is precarious. To hold land “in charity” might well mean to hold during the giver's pleasure, and it may be for this reason that the charters of a later day are careful to state that the gift has been made not merely in alms but “in perpetual alms1 .” Then again in some parts of the country it is frequently noted that the parish priest has a few acres “in elemosina”; in one case we learn that the neighbours gave the church thirty acres in alms2 . There are, however, other cases in which the term seems to bear a more technical sense; some religious house, English or French, holds a considerable quantity of land in alms; we can hardly doubt that it enjoys a certain immunity from the ordinary burdens incumbent on landholders in general, including among such landowners the less favoured churches1 . And so again in the early charters the word seems to be gradually becoming a word of art; sometimes we miss it where we should expect to find it, and instead get some other phrase capable of expressing a complete freedom from secular burdens2 . In the twelfth century, the century of new monastic orders, of liberal endowments, of ecclesiastical law, the gift in free, pure, and perpetual alms has a well-known meaning3 .

The notion that the tenant in frankalmoign holds his land by a service done to his lord seems to grow more definite in course of time as the general theory of tenure hardens and the church fails in its endeavour to assert a jurisdiction over disputes relating to land that has been given to God. The tenure thus becomes one among many tenures, and must conform to the general rule that tenure implies service. Still this notion, at least on the continent, was a very old one. A document of 817 contains a list of fourteen monasteries which owe the emperor aids and military service (dona et militiam), of sixteen which owe aids but no military service, and of eighteen which owe neither aids nor military service, but only prayers1 . In English charters it is common to find the good of the donor's soul and the souls of his kinsfolk, or of his lord, or of the king, mentioned as the motive for the gift; the land is bestowed pro anima mea, pro salute animae meae. Sometimes the prayers of the donees are distinctly stipulated for, and occasionally they are definitely treated as services done in return for the land2 ; thus, for example, the donor obliges himself to warrant the gift “in consideration of the said service of prayers3 .” Not unfrequently, especially in the older charters, the donor along with the land gives his body for burial, by which is meant that the donees undertake the duty of burying him in their church1 ; sometimes he stipulates that should he ever retire from the world he shall be admitted to the favoured monastery, sometimes he binds himself to choose no other place of retirement; often it is said that the donees receive him into all the benefits of their prayers2 .

We have spoken as though gifts in frankalmoign were made to men, but according to the usual tenour of their terms they were made to God. As Bracton says, they were made primo et principaliter to God, and only secundario to the canons or monks or parsons3 . A gift, for example, to Ramsey Abbey would take the form of a gift “to God and St Benet of Ramsey and the Abbot Walter and the monks of St Benet,” or “to God and the church of St Benet of Ramsey and the Abbot and his monks,” or simply “to God and the church of St Benet of Ramsey,” or yet more briefly “to God and St Benet4 .” The fact that the land was given to God was made manifest by appropriate ceremonies; often the donor laid the charter of feoffment, or some knife or other symbol of possession upon the altar of the church1 , sometimes he “abjured” the land and thus confirmed his gift by his oath2 . Clauses denouncing excommunication and damnation against all who should disturb the donee's possession did not go out of use at the Norman Conquest, but may be found incharters of the twelfth century3 , nor was it uncommon for a great religious house to obtain a papal bull confirming gifts already made and thereafter to be made, and whatever might be the legal effect of such instruments, the moral effect must have been great4 . We are not entitled to treat these phrases which seem to make God a landowner as of no legal value. Bracton more than once founds arguments upon them5 , and of course they very naturally suggest that land given in frankalmoign is utterly outside the sphere of merely human justice.

In later days the feature of tenure in frankalmoign which attracts the notice of lawyers is a merely negative feature, namely, the absence of any service that can be enforced by the secular courts. But here some distinctions must be drawn. The king might give land to a religious house “in free, pure, and perpetual alms,” and in that case not only would no secular service be due from the donee to the donor, but the land in the donee's hand would owe no secular service at all. But tenure in frankalmoign is by no means necessarily a tenure in chief of the crown; indeed it would seem that the quantity of land held in chief of the crown by frankalmoign was never very large. It will, of course, be understood that an ecclesiastical person might well hold lands, and hold them in right of his church, by other tenures. The ancient endowments of the bishops’ sees and of the greater and older abbeys were from the Conqueror's reign onwards held by knight's service; the bishop, the abbot, held a barony. Besides this we constantly find religious houses taking lands in socage or in fee farm at rents, and at substantial rents, and though a gift in frankalmoign might proceed from the king, it might well proceed, and probably more often did proceed, from a mesne lord. In this case the mere gift could not render the land free from all secular service; in the donor's hand it was burdened with such service, and so burdened it passed into the hands of the donee1 . If the donee wished to get rid of the service altogether, he had to go to the donor's superior lords and ultimately to the king for charters of confirmation and release. But as between themselves the donor and donee might arrange the incidence of this “forinsec service” as pleased them best. The words “in free, pure, and perpetual alms” seem to have implied that the tenant was to owe no secular service to his lord; but they did not necessarily imply that as between lord and tenant the lord was to do the forinsec service. And so we find the matter settled in various ways by various charters of donation:—sometimes it is expressly stipulated that the tenant is to do the forinsec service1 , sometimes the lord expressly burdens himself with this2 , often nothing is said, and apparently in such case the service falls on the lord.

Another rule of interpretation appears, though somewhat dimly. In accordance with more recent books, we have spoken as though a gift in frankalmoign, in free alms, always implied that no secular service was due from the donee to the donor. But the words generally used in such gifts were “free, pure, and perpetual alms,” and in Bracton's day much might apparently turn on the use of the word “pure3 .” Seemingly there was no contradiction between a gift in “free and perpetual alms” and the reservation of a temporal service, and many instances may be found of such gifts accompanied by such reservations. This will give us cause to believe that the exemption from secular service was not the one essential feature of tenure in frankalmoign; and if we find, as well we may, that a donor sometimes stipulates for secular service, though he makes his gift not only in free but even in pure alms, our belief will be strengthened1 .

The key to the problem is given by the Constitutions of Clarendon (1164). “If a dispute shall arise between a clerk and a layman, or between a layman and a clerk concerning any tenement which the clerk asserts to be ‘elemosina,’ and the layman asserts to be lay fee, it shall be determined by a recognition of twelve lawful men and the judgment of the chief justiciar, whether (utrum) the tenement belongs to ‘elemosina’ or belongs to lay fee. And if it be found that it belongs to ‘elemosina,’ then the plea shall go forward in the ecclesiastical court: but if it be lay fee, then in the king's court, or in case both litigants claim to hold of the same lord, then in the lord's court. And in consequence of such a recognition, the person who is seised is not to lose his seisin until it has been deraigned by the plea2 .” Let us observe how large a concession to the church the great Henry is compelled to make, even before the struggle with Becket has put him in the wrong. This is all that those “avitae leges,” of which he talks so frequently, will give him, and he claims no more. The clergy have established this principle:—All litigation concerning land held in almoign belongs of right to the ecclesiastical courts. All that the king insists on is this; that if it be disputed whether the land be almoign or no, this preliminary question must be decided by an assize under the eye of his justiciar. Thus the assize Utrum is established. It is a preliminary, prejudicial procedure; it will not even serve to give the claimant a possession ad interim; the possessor is to remain possessed; it decides not the title to land, but the competence of courts. Here then we find the essence of “almoign” as understood in the middle of the twelfth century:—the land is subject to no jurisdiction save that of the tribunals of the church. Even to maintain his royal right to decide the preliminary question of competence, was no easy matter for Henry. Alexander III freely issued rescripts which ordered his delegates to decide as between clerk and layman the title to English land, or at least the possessory right in English lands: he went further, he bade his delegates award possession even in a dispute between layman and layman, though afterwards he apologized for so doing. The “avitae leges,” therefore, were far from conceding all that the clergy, all that the pope demanded1 .

They conceded, however, much more than the church could permanently keep. If as regards criminous clerks the Constitutions of Clarendon are the high-water-mark of the claims of secular justice, as regards the title to lands they are the low-water-mark. In Normandy the procedure instituted by Henry, the Breve de Feodo et Elemosina, which was the counterpart, and perhaps the model, of our own Assisa Utrum, seems to have maintained its preliminary character long after Henry's son had forfeited the Duchy; its object is still to decide whether a dispute belongs to the ecclesiastical or to the temporal forum1 . In England it gradually and silently changed its whole nature; the Assisa Utrum or action Juris Utrum2 became an ordinary proprietary action in the king's court, an action enabling the rectors of parochial churches to claim and obtain the lands of their churches: it became “the parson's writ of right3 .” Between the time of Glanvill and the time of Bracton this great change was effected and the ecclesiastical tribunals suffered a severe defeat1 .

The formal side of this process seems to have consisted in a gradual denial of the assize Utrum to the majority of the tenants in frankalmoign, a denial which was justified by the statement that they had other remedies for the recovery of their lands. If a bishop or an abbot thought himself entitled to lands which were withholden from him, he might use the ordinary remedies competent to laymen, he might have recourse to a writ of right. But one class of tenants in frankalmoign was debarred from this remedy, namely the rectors of parish churches. Bracton explains the matter thus:—When land is given to a religious house, though it be in the first place given to God and the church, it is given in the second place to the abbot and monks and their successors, or to the dean and canons and their successors; so also land may be given to a bishop and his successors; if then a bishop or an abbot has occasion to sue for the land he can plead that one of his predecessors was seised of it, just as a lay claimant might rely on the seisin of his ancestor: but with the parish parson it is not so; we do not make gifts to a parson and his successors; we make them to the church, e.g. “to God and the church of St Mary of Dale1 ;” true, that if the parson himself be ejected he may have an assize of novel disseisin, for he himself has been seised of a free tenement, but a proprietary (as opposed to a possessory) action he can not bring, he can have no writ of right, for the land has not been given to a parson and his successors, it has been given to the church; he cannot therefore plead that his predecessor was seised and that on his predecessor's death the right of ownership passed to him; thus the assize Utrum is his only remedy of a proprietary kind2 . In another context it might be interesting to consider the meaning of this curious argument; it belongs to the nascent law about “corporations aggregate” and “corporations sole.” The members of a religious house can already be regarded as constituting an artificial person; the bishop also is regarded as bearing the “persona” of his predecessors—the vast temporal possessions of the bishops must have necessitated the formation of some such idea at an early time; but to the parish parson that idea has not yet been applied: the theory rather is that the parish church itself is the landowner and that each successive parson (persona ecclesiae) is the guardian and fleeting representative of this invisible and immortal being1 . However our present point must be that legal argument takes this form—(1) No one can use the assize Utrum who has the ordinary proprietary remedies for the recovery of land; (2) All or almost all the tenants in frankalmoign, except the rectors of parish churches, have these ordinary remedies; (3) The assize Utrum is essentially the parson's remedy; it is “singulare beneficium,” introduced in favour of parsons2 . This argument would naturally involve a denial that the assize could be brought by the layman against the parson. According to the clear words of the Constitutions of Clarendon, it was a procedure that was to be employed as well when the claimant was a layman as when he was a clerk. But soon the doctrine of the courts began to fluctuate. Martin Pateshull at one time allowed the layman this action; then he changed his opinion on the ground that the layman had other remedies; Bracton was for retracing this step, on the ground that trial by battle and the troublesome grand assize might thus be avoided3 . One curious relic of the original meaning of this writ remained until 1285, when the Second Statute of Westminster gave an action to decide whether a piece of land was the elemosina of one church or of another church1 . The assize had originally been a means of deciding disputes between clerks and laymen, or rather of sending such disputes to the competent courts temporal or spiritual, and the Constitutions of Clarendon contain a plain enough admission that if both parties agree that the land is “elemosina” any dispute between them is no concern of the lay courts.

We have been speaking of the formal side of a legal change, but must not allow this to conceal the grave importance of the matters which were at stake. The argument that none but parochial rectors have need of the Utrum, the conversion of the Utrum from a preliminary procedure settling the competence of courts into a proprietary action deciding, and deciding finally, a question of title to land, involves the assertion that all tenants in frankalmoign (except such rectors) can sue and be sued and ought to sue and be sued for lands in the temporal courts by the ordinary actions. And this, we may add, involves the assertion that they ought not to sue or be sued elsewhere. The ecclesiastical courts are not to meddle in any way with the title to land albeit held in frankalmoign. To prevent their so doing writs are in common use prohibiting both litigants and ecclesiastical judges from meddling with “lay fee” (laicum feodum) in the Courts Christian, and in Bracton's day it is firmly established that for this purpose land may be lay fee though it is held in free, pure, and perpetual alms2 . The interference of the ecclesiastical courts with land has been hemmed within the narrowest limits. The contrast to “lay fee” is no longer (as in the Constitutions of Clarendon) elemosina, but consecrated soil, the sites of churches and monasteries and their churchyards, to which, according to Bracton, may be added lands given to churches at the time of their dedication1 . The royal court is zealous in maintaining its jurisdiction; the plea rolls are covered with prohibitions2 directed against ecclesiastical judges; and it is held that this is a matter affecting the king's crown and dignity—no contract, no oath to submit to the Courts Christian will stay the issue of a prohibition3 . But the very frequency of these prohibitions tells us that to a great part of the nation they were distasteful. As a matter of fact a glance at any monastic annals of the twelfth century is likely to show us that the ecclesiastical tribunals, even the Roman curia, were constantly busy with the title to English lands, especially when both parties to the litigation were ecclesiastics. Just when Bracton was writing, Richard Marsh at the instance of Robert Grostete was formulating the claims of the clergy—“He who does any injury to the frankalmoign of the church, which therefore is consecrated to God, commits sacrilege; for that it is res sacra being dedicated to God, exempt from secular power, subject to the ecclesiastical forum and therefore to be protected by the laws of the church1 .” It is with such words as these in our minds that we ought to contemplate the history of frankalmoign. A gift in free and pure alms to God and his saints was meant not merely, perhaps not principally, that the land is to owe no rent, no military service to the donor, but also and in the first place that it is to be subject only to the laws of the church and the courts of the church.

[1]Law Quarterly Review, October, 1891.

[2]But in 13 Edw. I (Fitz. Abr. Counterple de voucher, 118) it is said that frankalmoign is the highest and most certain of all services.

[3]Lit. sec. 133–8.

[1]See the writ Cessavit de cantaria, Reg. Brev. Orig. 237 b, 238.

[2]A few instances of such definite spiritual services may be found already in Domesday, e.g. II. 133, 133 b, a tenant was to sing three masses every week. Gifts for the maintenance of lamps before particular altars and the like are not uncommon, and often they expressly say that the land is frankalmoign, e.g. Reg. St Osmund, I. 234 (1220–5), a gift of land to the church of Sarum in pure and perpetual alms to find a taper to burn before the relics on festivals. Sometimes it would have been difficult to draw the line between “certain” and “uncertain” services, as when land was given that its rents might be expended “tam in reparanda ecclesia quam in majoribus necessariis ecclesiae,” Reg. St Osmund, I. 350.

[1]D. B. I. 293, “In W. tenet quidam cecus unam bovatam in elemosina de rege”; IV. 466, “Tenuit Edritius mancus in elemosina de rege Edwardo.” In Dorsetshire, under the heading “Terra Tainorum Regis” (I. 84), we find “Hanc terram dedit Regina Dodoni in elemosina.” In Devonshire, under the like heading (118), we find “Aluuard Mert tenet dim. virg....Regina dedit ei in elemosina.” In Hertfordshire (137 b) we read how a manor was held by two thegns, one of whom was the man of King Edward, the other was the man of Asgar; they could not sell “quia semper jacuerunt in elemosina.” This would seem to mean that they held precariously. See the curious entry, II. 5 b, which tells how Harold gave a hide to a certain priest of his, “set hundret nescit si dedit liberae [sic] vel in elemosina”; seemingly the hundred did not know whether the priest's tenure was free or precarious.

[2]D. B. II. 24 b; II. 189, the parish church holds sixty acres of free land “elemosina plurimorum.” See the survey of Suffolk where the parish church generally holds some acres “of free land” in elemosina.

[1]D. B. I. 25 b, “Clepinges tenet Abbatia de Almanesches de Comite (Rogerio) in elemosina...se defendit pro xi. hidis. ... In eodem manerio tenet S. Martinus de Sais de Comite in elemosina xi. hidas”; I. 58, “Episcopus Dunelmensis tenet de Rege Waltham in elemosina”; I. 166 b, “Ecclesia de Cirecestre tenet de Rege duas hidas in elemosina et de Rege E. tenuit quietas ab omni consuetudine.”

[2]Thus when Henry I makes gifts to the Abbey of Abingdon “to the use of the alms of the said church,” we seem to get the term in a slightly different sense from that which becomes usual; he may well mean that the land is devoted to those pious works of the Abbey which belong to the almoner's department; Hist. Abingd. II. 65, 94.

[3]In comparatively late documents we may still find persons who are said to hold in frankalmoign who are not holding in right of any church. Thus in the Whalley Coucher, I. 43, William the clerk of Eccles gives land to his brother John his heirs and assigns, to hold in pure and perpetual alms of the donor and his heirs, rendering yearly a pound of incense to God and the church of Eccles. William's tenure may have been frankalmoign, but according to modern notions John's could not be.

[1]Pertz, Leges, I. 223, 331; Viollet, Histoire des Institutions, I. 331. The translation of dona by aids may be a little too definite.

[2]Cart. Glouc. I. 197, “habendum in liberam elemosinam...sine aliquo retinemento ad opus meum vel aliquorum haeredum meorum nisi tantummodo orationes spirituales perpetuas”; ibid. I. 199, 289, 335, II. 10. Such phrases are common in the Whalley Coucher Book.

[3]Cart. Glouc. I. 307, “Nos vero...praedictam terram...per praedictum servicium orationum warantizabimus.” The term “consideration” is of course a little too technical, but still the prayers seem regarded as having a certain juristic value.

[1]Litigations over the right to bury benefactors may be found, e.g. Register of St Thomas, Dublin (R. S.), 349, between the canons of St Thomas and the monks of Bective about the body of Hugh de Lacy; also struggles for the bodies of dying men, e.g. between the monks of Abingdon and the canons of St Frideswide's, Hist. Abingd. II. 175. See also a charter of John de Lacy in the Whalley Coucher, I. 33: “Know ye that I have given and granted to the abbot and monks of Stanlaw after my death myself, that is to say, my body to be buried.”

[2]For an elaborate agreement about masses and other spiritual benefits, see Newminster Cartulary, p. 120.

[3]Bract. f. 12.

[4]Cart. Ramsey, I. 159, 160, 255, 256.

[1]See e.g. Cart. Glouc. I. 164, 205; II. 74, 86, 97.

[2]See e.g. Reg. St Osmund, I. 356; Chron. Melsa. I. 309.

[3]See e.g. Hist. Abingd. II. 55; Whitby Cartulary, I. 200; Whalley Coucher, I. 17, 113.

[4]See e.g. Bull of 1138, Hist. Evesham, 173; Bull of 1140, Cart: Ramsey, I. 155; Bull of 1146, Hist. Abingd. II. 173.

[5]Bract. f. 12, 286 b.

[1]Bract. f. 27 b.

[1]Hunter, Fines, I. 200 (3 John), “Ala dedit et concessit in puram et perpetuam elemosinam Deo et ecclesie S. Marie de B...totam terram suam...ita quod predictus prior et successores sui facient inde forinsecum servicium.” Cart. Glouc. I. 167, gift in frankalmoign, “salvo tamen regali servicio”; ibid. 187, gift in frankalmoign saving the landgafol due to the king; ibid. 389, gift in free, pure and perpetual alms subject to a rent of pepper due to a superior lord and to royal service.

[2]Cart. Glouc. II. 17, 30, 98.

[3]Bract. f. 27 b; Bracton's Note Book, pl. 21.

[1]Rievaulx Cart. p. 29, gift by Bishop Hugh of Durham in free and perpetual alms at a rent of 60 shillings, payable to him and his successors; ibid. pp. 80, 226, 249. Newminster Cart. p. 73, gift by Newminster Abbey to Hexham Priory in free, pure, and perpetual alms at a substantial rent. Malm. Reg. II. 124, gift in free, pure, and perpetual alms to hold of me and my heirs “jure eleemosinario,” rendering to me and my heirs one penny yearly. Bracton, f. 48, holds that in these cases the reservation being repugnant to the gift is of no effect.

[2]Const. Clarend. c. IX. In the Gesta Abbatum, I. 114, the St Alban's chronicler gives an account of litigation in Stephen's reign in which something very like an Assisa Utrum takes place.

[1]See the very remarkable series of papal rescripts in the Rievaulx Cartulary, 189–197; see also Decret. Gregorii IX, lib. IV. tit. xvii. cap. 7, where the pope admits that he has gone too far in ordering his delegates to give possession in a dispute between laymen, which came into the ecclesiastical courts in consequence of a question having been raised about bastardy. See also in the Malmesbury Register, II. 7, proceedings under letters of Innocent III for the recovery from a layman of land improvidently alienated by an abbot. In the Gesta Abbatum, I. 159–162, there is a detailed account of litigation which took place early in Henry II's reign between the Abbot of St Alban's and a layman touching the title to a wood; the Abbot procured letters from the Pope appointing judges delegate.

[1]Ancienne Coutume (de Gruchy), c. 117; Brunner, Entstehung der Schwurgerichte, 324–6.

[2]The term Juris utrum seems due to a mistake in the expansion of the compendium Jur’; it should be Jurata Utrum, in French Juré Utrum; see e.g. Y. B. 14 & 15 Edw. III (ed. Pike), p. 47; and see Bracton, f. 287, where the technical distinction between an Assisa Utrum and a Jurata Utrum is explained.

[3]Britton, II. 207.

[1]According to Glanvill (XII. 25, XIII. 23, 24) the Courts Christian are competent to decide an action for land between two clerks or between clerk and layman in case the person in possession is a clerk who holds in free alms. So late as 1206 an assize Utrum is brought by one monastic house against another, and on its appearing that the land is almoign the judgment is that the parties do go to Court Christian and implead each other there; Placit. Abbrev. p. 54 (Oxon.).

[1]This remark seems fairly well supported by the practice of conveyancers in Bracton's time; thus e.g. a donor gives land “to God and St Mary and St Chad and the church of Rochdale,” and contracts to warrant the land “to God and the church of Rochdale,” saying nothing of the parson; Whalley Coucher, I. 162.

[2]Bracton, f. 286 b, 287. This may have been the reasoning which caused a denial of the assize to the parson when that parson was a monastery, a denial which an ordinance of 1234 overruled; Bracton's Note Book, pl. 1117.

[1]Bracton, f. 287 b. The parson has not only the assize of novel disseisin, but he may have a writ of entry founded on the seisin of his predecessor. This being so the refusal to allow him a writ of right is already somewhat anomalous. But the writs of entry are new, and the law of the twelfth century (completely ignored by Bracton) was that the ecclesiastical court was the tribunal competent to decide on the title to land held in frankalmoign.

[2]Bracton, f. 286 b.

[3]Bracton, f. 285 b; Fleta, p. 332; Britton, II. 207.

[1]Stat. 13 Ed. I, c. 24.

[2]Bracton, f. 407; Bracton's Note Book, pl. 547, 1143. Compare the somewhat similar distinction, “entre lieu saint et lieu religieus,” in Beaumanoir, vol. I. p. 163.

[1]Bracton, f. 407. Such lands constitute the church's dos or dower. See also f. 207 b.

[2]See Bracton's Note Book passim. The writ of prohibition is found in Glanvill, XII. 21, 22. It is found in the earliest Chancery Registers. Bracton discusses its scope at great length, f. 402 fol.

[3]In the twelfth century the donor sometimes expressly binds himself and his heirs to submit to the Church Courts in case he or they go against the gift; e.g. Rievaulx Cartulary, 33, 37, 39, 69, 159, 166. So in the Newminster Cartulary, 89, a man covenants to levy a fine and submits to the jurisdiction of the archdeacon of Northumberland in case he fails to perform his covenant. For a similar obligation undertaken by a married woman, see Cart. Glouc. I. 304. As to such attempts to renounce the right to a prohibition, see Bracton's Note Book, pl. 678.

[1]Ann. Burton, p. 427. See also the protest of the bishops in 1257, Mat. Par. Chron. Maj. VI. 361.