[325] Relief—quia hereditas, quæ jacens fuit per antecessoris decessum, relevatur in manus heredum et propter factam relevationem facienda erit ab herede quædam præstatio, quæ dicitur relevium. (Vide Bracton 84. et Fleta l. 3. c. 17. s. 1.) Among the Laws of Edward the Confessor, there is a singular one, respecting the Relief of a Tenant who fell in battle. (LL. Edw. Conf. c. 35.) It must, however, be observed that Spelman questions that Law, and strongly contends, that Reliefs were not in use among the Saxons. (Reliq. p. 31.) The Reader will find that point controverted in the preface to Wilkins’s Anglo-Sax. LL. p. 9. The Reader, if desirous of extending his enquiries on Reliefs in general, may consult Bracton 84. et seq. Fleta L. 3. c. 17. Co. Litt. 76. a. 83. a. Black. Com. Sullivan, Craig, Spelman &c. &c. &c.

[326] “Glanville,” observes Lord Coke, “saith, that Women shall not do Homage: but Littleton saith, that a Woman shall do Homage, but she shall not say, Jeo devigne votre feme, but Jeo face à vous homage; and so is Glanville to be understood, that she shall not do complete Homage.” (Co. Litt. 65. b.) Having cited this passage, a noble Historian observes “But I should rather think, that in Glanville’s time single women did none, and that the alteration in the form, which is mentioned by Littleton, was an expedient found afterwards to obviate the objection of an indecency in their Homage: as it was also in the case of Ecclesiastics.” (3 Litt. Hist. Hen. 2. p. 339.) Skene gives a reason for the rule as laid down by Glanville: because Homage especially concerns service in war, (de verb. sign. ad voc. homagium.) He also remarks, that consecrated Bishops did no homage. The reason, says Cowell, may be all one. (Interpreter) But Craig (Jus Feud. 1. 11. 10.) and the Regiam Majestatem (L. 2. c. 60.) expressly coincide with our Author. Indeed, if any doubt could possibly exist, concerning the unconditional meaning of the passage in the text, it would be silenced by the latter part of the present chapter. Having made use of the expression liber homo, our author pointedly adds, masculus, as if solicitous to prevent any possible misconception, especially that very misconception Lord Coke seems to have fallen into, which is likewise refuted by a custom mentioned by Lord Littleton. “From the obligation laid on the Husband to do Homage for the wife, it naturally followed, that the Barony of a wife, as well as every other Fief requiring Homage, was in effect made over to the Husband; and, therefore, in those days many Barons came to Parliament in right of their wives, and by virtue of their marriage, were accounted Peers of the Realm. It has been observed, in this History, that the same notion extended to Dukedoms and Principalities in many parts of the Continent.” (Litt. Hen. 2. p. 339.)

[327] We have observed, that homage was divided into, liege and feudal: it was also divided into, liege and not liege, which division corresponds with the other. Liege is borrowed from the French, as Thaumas informs us. (Cout. de Beauvoisis p. 255.) and seems to have meant a service that was personal and inevitable. (Traités Sur Les Cout. Anglo-Norm. par Houard. p. 511. Tom. 1.)

[328] In performing Homage, the Tenant was to name and specify the particular Tenement, on account of which he did Homage, in order that the Lord might not be imposed upon. (Britton 174. Mirror c. 3. s. 36.)

[329] “In the year 1152, the Emperor Frederic Barbarossa made a Statute, that in every oath of fealty taken to any of his subjects, there should be a reserve of the faith due to him and his successors; which immediately was adopted by several other nations, where the feudal Law was in use, with regard to their sovereigns, and, the omission of that reserve was punished in England by a judicial determination under Edward the first.” (3 Litt. Hen. 3. p. 111.) This reserve was also required by the Book of Feuds L. 2. t. 55. Regiam Maj. L. 2. and Grand Cust. Norm.

[330] Vide Mirror c. 4. s. 10. and 11, and Le Grand Cust. de Norm. c. 14.

[331] As the Tenant could not injure his Lord, neither could the Lord injure his Tenant. If the violation of this obligation was punished on the Tenant’s part, by the loss of his Tenement, the Lord, when the Aggressor, lost his Dominion. (Fleta L. 3. c. 16.)

[332] Parium. Vide 2 Inst. 42. Spelm. Gloss. ad voc.—Pares enim sunt cum unus aliis non subditur Hommagio, Dominatione, vel Antenatione. Hommagio ut Homo subditur Domino suo cui fecit Hommagium Dominatione, ut Homo subditur uxoris domino et ejus primogenito filio: et omnes postnati ratione antenationis. (Grand Custum. de Norm. c. 126.)

[333] This differed from the Norman code, which, in a tone of haughty despotism, released the Lord from the necessity of adducing any testimony. Vox enim sola Domini Curiæ in iis quæ ad ipsum pertinent sufficit ad accusationem subditorum. (Grand Cust. c. 126.) Perhaps a worse principle never disgraced an Eastern code.

[334] That is, the King’s Court.

[335] “Pope Paschal the 2nd,” observes Lord Littleton, “allowed the Bishops elect to do Homage, and take the oath of Fealty, before they were consecrated. This was confirmed by the Constitutions of Clarendon, of which a particular account will be given hereafter; and, from the words of Glanville, it appears, that about the end of Henry the 2nd’s reign Homage was accordingly done by Bishops elect, but he tells us, that after they were consecrated they took the oath of fealty. This was a material difference from what had been settled by the constitutions of Clarendon: and it is surprising, that we have no account of it in the History of the Times.” (Litt. Hen. 2. Vol. 3. 113.)

[336] Pro Domino is the expression of the text, which I have disregarded—but have preferred, what, I submit, must be the true reading, pro Dominio, for so Bracton has it in a passage corroborative of the doctrine of the text. (79. b.) And with this concurs the Regiam Majestatem: “Homage is not made to any man for his band of maintenance, but only to the King.” (L. 2. c. 65.)

[337] See Co. Litt. 67. a. The tenure of parage among the Normans, which seems to have possessed some features in common with that alluded to in the text, required fealty to be done by the Younger to the Elder branch at the sixth, and Homage at the seventh, descent. (Grand Custum. de Norm. c. 30.)

[338] He shall not pay any other Relief, says the Regiam Majestatem. (Vide L. 2. c. 67.)

[339] The mutuality of obligation created by Homage is inculcated, not merely by our own, but other writers. (Vide Assises de Jerusalem c. 99. Coutumes de Beauvoisis c. 58. Mirror c. 4. s. 11. Bracton 78. Fleta L. 3. c. 16. Britton fo. 170. a.) This has induced Lord Littleton (3 Hist. Hen. 2. 121.) and Mr. Watkins (Copyholds Vol. 1. p. 2.) to conclude, that the Feudal System was abhorrent from Tyranny, originated in freedom, and ceased to be free only when it was corrupted.

[340] The Text seems to allude to Homage auncestrel, and pointedly to inculcate an opposite doctrine. Yet, Lord Coke refers to this identical chapter of Glanville, in support of the doctrine of Homage Auncestrel!! (Co. Litt. 101. a.) The Reg. Maj. is rather more consistent with itself, but assists us not materially. “But it is otherwise to be understood of him who has Lands as free Heritage, for the which he is not obliged to make Homage: for, although he lose that Land, the over-Lord giver thereof is not obliged to warrant the same.” (L. 2. c. 67.)

[341] Similar is the doctrine of the Grand Norman Custumary c. 33.

[342] Si autem fœminæ in Custodia fuerint, cum ad annos nubiles pervenerint, per consilium et licentiam domini sui et consilium et consensum amicorum suorum et consanguineorum propinquorum prout generis nobilitas et feudorum valor requisierint debent maritari, et in contractu matrimonii debet iis feodum custodia liberari. (Grand Norm. Cust. c. 33.)

[343] Fleta enumerates the instances in which Reliefs were not to be paid. 1. None was payable for a Fief, acquired by any species of purchase. 2. Nor on a change of the Lord. 3. Nor was a Tenant for life only, to pay a Relief. 4. Nor any man who married a woman who had been in custody—but this differs from the Text. 5. Nor any one from whom his Lord had received a remuneration, on account of custody. 6. Nor any one who had once paid a relief for his Estate. (Fleta L. 3. c. 17. s. 5. et seq.)

[344] Reliefs were in many parts of Normandy certain and fixed: thus a Knight’s fee, or, as it is there termed, feudum loricæ was five pounds, a barony one hundred pounds, land twelve pence an acre, and woody ground 6d. (Grand Cust. c. 34.)

[345] Now, as a Knight’s fee was valued at £20, the sum mentioned in the text was a fourth of it.

[346] It appears to have been thus settled by a Law of the Conqueror. (LL. Gul. Conq. c. 40. Ed. Wilkins.) This, as Mr. Watkins observes, seems to have been no more than accounting to the Lord for the profits of that year, for which he might under certain circumstances, have retained the Lands. (Treat. on Copyh. 1. 231.)

[347] Dr. Sullivan accounts for the advantage which the Knights had obtained, when compared to the great Barons, in having their Reliefs reduced to a certainty, from the number of the Knights who made the strength of the Kingdom and were not to be disobliged; and also from the precarious situation many of the great Lords were in, who had been attached to the cause of Stephen. (Lectures p. 109.)

[348] Statutum. “From the word statutum,” says Dr. Sullivan, commenting upon the Text, “I take it for granted, this change of Reliefs into money was by Act of Parliament.” (Lectures p. 290.)

[349] This was remedied by Magna Carta cap. 2. The Reader may consult Lord Coke’s comment on the words antiquum relevium, where he endeavours to prove, the ancient Relief was certain. (2 Inst. 7. and 8.) Lord Coke, in support of his position, cites a MS. in the Library of Archbishop Parker, which seems almost word for word to coincide with the Laws of the Conqueror. (LL. Gul. Conq. c. 22. 23. 24.) This is the more remarkable, as his Lordship cites from a MS. merely, without describing the nature of it.

[350] Vide Co. Litt. 105. b. and Bracton 84. a.

[351] Vide Co. Litt. 101. a.

[352] Fleta tells us, that an examination ought to precede the Homage, in order to ascertain, whether the person offering himself, was the natural Son of the man to whom he made himself Heir, both with respect to the right of possession, and of propriety &c. &c. that the Lord might not inadvertently be deceived. (L. 3. c. 16. s. 23. 24.)

[353] The Reader will observe the expression, the King retains, whilst an inferior Lord seises or takes, the fee into his hands. In manum regis delapsa est is the expression of Dial. de Scacc. speaking of a fee held in chief, upon the death of its owner. (L. 2. c. 10.) But a passage in Mr. Madox’s Hist. of the Excheq. serves to throw still more light on the text. “Every Honor originally passed from the King, and, upon every change, by death, or otherwise, returned to the King again, and remained in his hand, until he commanded seisin of it to be delivered to his Homager, according to the custom of noble fiefs.” As the Law, by the magic of a fiction, cast the Inheritance on the King the moment his Tenant in Capite died, it was merely necessary for him to retain it—whilst the Law, not interfering on behalf of an inferior Lord, obliged him to seise the Land.

[354] “Aids were, at first, benevolencies of the Vassals, and were given during the great festivity, or the great necessity of the Lord upon three occasions—to wit—when his Son was knighted, when his Daughter was to be married, and when his person was to be ransomed: but what originally flowed from regard, Superiors soon changed into a matter of duty, and on a gratuity erected a right.” (Dalrymp. on feuds, p. 52.)—Speaking of aids, Mr. Madox informs us, that King William the First took 6s. of each Hyde through England—King Henry the First took 3s. for each Hyde, as aid pur fille marier. But he adds, that, for want of requisite notices, he could not speak distinctly of them. (Hist. Exch. c. 15. s. 1.) The Reader may also be referred to Traités sur les Coutumes Anglo-Norm. par M. Houard. 1. 265. 518.

[355] By the Norman Code it was fixed at half the Relief paid by the mesne to the Chief Lord. (Grand Cust. c. 35.)

[356] Contenementum, a word of frequent recurrence in the old Books and Statutes. “Mr. Selden in his table talk says, that the word contenementum signifies the same with countenance, as used by the country people, when intending to receive a person with hospitality, they say—I will see you with the best countenance. So that the meaning of Magna Carta (where this word occurs) is, a man shall not be so fined, but that he may be able to give his neighbour good entertainment.” (Barr. Anc. Stat. p. 12. See also 4 Bl. Comm. 378.)

[357] Aid and relief do not always appear to be used by the old Books, in different senses. Speaking of the aids, mentioned in the present passage of the text, the Norman Code says, Hujusmodi relevia in quibusdam feodis dimidio relevio equalia: et in quibusdam feodis decem solidos. Hence, the ancient custom was to be followed. (Le Grand Cust. de Norm. c. 35.) When Bracton wrote, these aids were considered as matter of grace, rather than of right, being, as he terms them, customs, not services, and personal to the Tenant, not prædial. (36. b.) Judge Blackstone notices the great resemblance, which, in the particular of aids, the Lord and Vassal of the Feudal Law bore to the patron and client of the Roman Law: the patron being entitled to three aids from his client, viz. to marry his Daughter, to pay his Debts, and to redeem his person from captivity. (2 Com. 63.) Generally, see Co. Litt. 76. a. and Mr. Hargrave’s note 1. 2 Inst. 231. 232, and Mirror, c. 1. s. 3.

[358] Homagers. Bodln. MS.

[359] Justiciare. Justiciatio, says the Norman Code, est coarctatio super aliquem facta, ut juri pareat. Having given this definition, it goes on to observe, that it ought not to precede, but follow the offence—that there were three things that authorised it—transgressio termini prefixi—contemptus justiciæ, and irrogatio Injuriæ. We learn from the same source, that this Justiciatio was by distraining the goods, or the Fee, or by taking the body. (Le Grand Custum. de Norm. c. 6.)

[360] F.N.B. 337.

[361] “By the general Assise or Assembly,” meaning the Parliament, according to Judge Blackstone. 1. 148.

[362] Purprestura vel Porprestura—“And because, it is properly, when there is a House builded or an Enclosure made of any part of the King’s Demesnes, or of an Highway, or of a common street, or public water, or such like public thing, it is derived of the French pourpris, which signifieth an enclosure.” (Co. Litt. 277. b.) The term purpresture seems to have been understood by our old Lawyers in three senses. 1st. as committed against the King, by a subject. 2d. as committed by a Tenant, against the Lord of whom he held his fee. 3d. as committed by one neighbour, against another. (Vide Craig Jus feud. L. 1. D. 16. c. 10. and L. 3. D. 5. s. 6. 7. Spelm. Gloss. ad voc. Cowell’s Interp. Manwood’s Forest Laws. p. 169. 176. Grand Norm. Cust. c. 10. &c. &c. and Traités sur les Coutumes Anglo-Norm. par Houard. 1. 387.)

[363] Occupatur. “Occupationes,” says Lord Coke, “are taken for usurpations upon the king, and, it is properly, when one usurpeth upon the king, by using of liberties and franchises which he ought not to have; and, as an unjust Entry upon the king into Lands or Tenements, is called an intrusion, so an unlawful using of franchises or liberties is said an Usurpation: but occupationes in a large sense are taken for purprestures, intrusions, and usurpations.” (2 Inst. 272.) The Reader may also consult Dialog. de Scacc. L. 2. s. 10.

[364] Bracton tells us, that it was, in his time, an Article of the Eyre to inquire, de purpresturis factis super dominum Regem, sive in ferru, sive in mari, sive in aqua dulci, sive infra libertatem, sive extra. (116.) See also 2 Inst. 272. 4 Chap. Stat. de Bigamis. Co. Litt. 293. b. 294. a.

[365] Patriæ. Vide Spelm. Gloss. ad voc. also 3 Bl. Com. 349. and 375. and Mr. Christian’s Note.

[366] Having already spoken of Amercements, we shall here merely remark that in the reigns of William the Conqueror and his Son Rufus, they were no less immoderate, than oppressive. Henry the First was compelled, by the peculiar difficulties of his situation, to make many concessions.—One of which was, that amercements should no longer be assessed, as they had been in his Father’s and Brother’s reigns, to the extent of the whole property of the offender, but should be proportionate to the crime—sicut retro a tempore patris mei et fratris mei in tempore aliorum antecessorum meorum. (LL. Hen. 1. c. 1.) If these words mean any thing, they imply, that Henry merely restored the Common Law, which his Father and Brother had violated. How ill this concession was observed, we may conjecture, from its having been felt necessary to make it part of the great charter. (See 2 Inst. 27.)

[367] V. Gul. Somn. Notas ad LL. 1. Cap. 1. p. 176. (Al. MS.)

[368] Infra Assisam—That is, says Skene, within the time within which his Action should be pursued, or else to be holden as prescribed. (Reg. Maj. L. 2. c. 74.)

[369] Infra Assisam—lawful time, says Skene, so that the Action of Novel Disseisin is not prescribed. (Reg. Maj. L. 2. c. 74.)

[370] Vide F.N.B. 285.

[371] Vide Ante p. 133. Note 1.

[372] The Terms mutui, venditionis, commodato, locato, deposito, are evidently borrowed from the Civil Law. But we are not from hence to conclude, as Bishop Nicholson hastily did, that Glanville apes, as he expresses it, the Roman Code. (Scotch Historical Library, 255.) This, of all faults, is the least imputable to the venerable Glanville.—On the term mutuum see Note 1. p. 204. Infra.

[373] Vide Justin. Instit. L. 3. tit. 15.

[374] L. 7. c. 16.

[375] The Norman Code divides Pledges into, simplices, and debiti retinentes. An example of the former kind is the following—Ego plegio A. quod reddat B. decem solidos. The effect of such a pledge was, that it ceased with the life of the person entering into it, and descended not upon his Heirs. Neither was there any difference, in this respect, if the pledge was given for the appearance of another in any suit. With respect to the latter kind of pledge, the Term was employed, when the person entering into it made himself answerable for the Debt, and thus stood in the twofold capacity of Debtor and pledge. The effect of this seems to have been, to release the original Debtor, and to render the Representatives of the person entering into it liable to answer it. (Le Grand Custum. de Norm. c. 60. 89. 90.)

[376] The same Rule is laid down in the Norman Code: but the subject is there treated far more diffusely. It seems, by that Code, to have been an obligation imposed upon the Homager, by his tenure, to become pledge for his Lord’s Debts to the extent of a year’s Rent—to become pledge for his person, if in prison—for his prosecuting a suit, or appearing to it, &c. &c. (Grand Custum. c. 60.)

[377] The Regiam Majestatem, on the contrary, lays it down, that he can recover, (L. 3. c. 1.)—a rule that is certainly more consistent with Justice. On the other hand, the Mirror coincides with the text. (c. 2. s. 24.)

[378] Mutuum—quia, ita a me tibi datur, ut ex meo tuum fiat. (Justin. Instit. L. 3. t. 15.) Vinnius terms this bella allusio, non vera vocis originatio. Dr. Wood observes, as to the Term itself, it hath no one particular name in the English language.

[379] With this explanation the Regiam Majestatem (L. 3. c. 2.) and the Grand Norman Custumary (c. 113.) literally coincide—though it differs from that given by Littleton, and followed by Coke, Craig, and Blackstone. (Co. Litt. 205. a. 2 Comm. Bl. 157. Craig Jus Feud. L. 2. D. 6. s. 27.) What is the more remarkable, Lord Coke expressly contrasts the mortuum vadium to the vivum vadium. Vivum autem dicitur vadium quia nonquam moritur ex aliquâ parte quod ex suis proventibus acquiratur. But assuredly, if the term mortgage is to be collected from its forcible contrast to these words, Glanville’s explanation is infinitely preferable to that given by Lord Coke.

[380] Existente termino. This is a palpably false reading—it should be, elapso termino, the term being expired, an expression familiar to Glanville. This suggestion is sanctioned by the Reg. Maj. “the day being bygone,” (L. 3. c. 3.)—by the expression of the text ad terminum in the sentence immediately preceding—by the words of the Writ in the next chapter, “a term which is past”—and, lastly, by a passage in the Eighth Chapter of this Book, where our Author expressly lays it down, that, before the time fixed for payment, the Creditor cannot claim the Debt. Yet is the reading existente termino preserved in Mr. Houard’s Edition of Glanville, an Edition frequently, but not always, more correct than any of those printed in this Country.

[381] Sir Edward Coke, having been led by his subject to treat of conditions, refers to the present Chapter of our Author. From such plain and simple materials did the complicated doctrine of conditions draw its primary principles!! (Co. Litt. 201. b.)

[382] “In Glanville’s time,” says Sir Wm. Blackstone, “when the universal method of conveyance was by livery of seisin, or corporeal tradition of the Lands, no gage or pledge of Lands was good, unless possession was also delivered to the Creditor”—and, having referred to this part of our Author, he observes, “And the frauds which have arisen, since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient Law.” (2 Bl. Com. 159.)

[383] This may be accounted for by recollecting that Usury itself, though viewed in a criminal light, was not expressly prohibited. (Ante L. 7. c. 16.) Nor was it punished, if the party amended: but, if he died in the crime, the act had then reached the point of criminality—the offence was complete, and the punishment followed. But, until that moment arrived, Usury, in strictness, was an act rather approaching to a crime, than actually amounting to it. The reasoning was founded upon principles no less artificial than false—the death of the party being purely accidental, and the crime itself being complete, without any reference to such accident, the very instant the party received the usurious remuneration. The doctrine of the Regiam Majestatem, in unison with this reasoning, and contrary to the text of Glanville, expressly forbids a Mortgage, because it was a species of Usury. (c. 5. L. 3.)

The Reader will meet with some curious disquisitions in the Dial. de Scacc. (L. 2. s. 10.) where he will find the doctrine of the text illustrated in the true spirit of the times.

[384] Vide LL. Gul. Norman. c. 28. (Al. MS.) The Law here alluded to, the Reader has already been put in possession of. See p. 170. note 1.

[385] Vide Constitutions of Clarendon. (Anglo-Sax. LL. Ed. Wilkins. 324.)

[386] The Text is not free from difficulty which evidently arises from an omission. I have ventured to introduce the words, “should he, however, deny it, the Creditor.” The Context countenances this conjecture.

[387] A similar Law is to be found amongst those ascribed to the Conqueror. (LL. Gul. Conq. c. 28.)

[388] Commodatum. (Justin. Inst. 3. 15. 2.) A Commodatum differed from a mutuum, because the same person continued to be the owner, and because the same thing was to be returned, and not another of the same quantity or quality, as in a mutuum. (Dig. 13. 6. 8. and 9.) “They have different names in Latin, though not in English,” says Dr. Wood. (Civil Law. Inst.) To avoid the inconvenience and confusion of employing the same term for each, the Translator has called the one a loan, the other a borrowing. The distinction between a gratuitous loan for use, and a simple loan, occurs in the Code Napoleon, which is drawn, as, indeed, may be observed of no small portion of that work, from the Civil Law.

[389] Skene refers to Exodus c. 22. v. 14. 15.

[390] “By him who gave the Loan, and by his Witness,” says the Regiam Majestatem. (L. 3. c. 9.)

[391] “It is answered, he may not repeat it or seek it again, because any loan may not be repeated or called back again, until the use be perfected and fulfilled to the which it was lent.” (Reg. Maj. L. 3. c. 9.) But the modern French Code permits it to be recalled. (S. 1889.)

[392] Vide Bracton fo. 61. b. and Fleta L. 2. c. 58.

[393] Vide Justin. Inst. 3. 24. §. Custum. de Norm. c. 22. and Bracton 61. b. The two chief obligations of the Vendor, as laid down in the present and following chapters, are comprised in a section of the modern French Code—that of delivering, and that of warranting the thing which he sells. (Code Napoleon 1603.)

[394] Quia sine traditione non transferuntur rerum dominia. (Bracton 61. b.)

[395] Arrhæ. In the Civil Law the Arrha or Earnest was given, either simply as a symbol, or mark of the Contract, or, it was given, as Vinnius informs us, as a part of the price. In the former case the purchaser was not permitted to avoid the contract with the loss of his Earnest—in the latter, he was allowed to do so. The Vendor might recede with the loss of twice the value of it. (Dig. 18. 1. 35.—19. 1. 11. 6. Inst. 3. 24. pr.) With respect to the effect of Earnest, as our Law now stands, vide 2. Bl. Comm, 447.

[396] When there is neither writing, Earnest, nor delivery, the parties, says Bracton, may retract. (61. b.)

[397] Pactum enim legem vincit. (LL. Hen. 1. c. 49.) “Contracts legally made have the force of Law between those who have made them.” (Code Napoleon s. 1134.)

[398] If, says a Law of Ina, a person has purchased any thing, and, within thirty days, discover it to be defective, he may restore the thing to the hands of the Vendor, unless the latter will swear, that he knew of no defect in it at the time he sold it. (LL. Inæ. c. 56.)

[399] In Bracton’s time the Vendor forfeited double the Earnest—a rule according with that of the Roman code. (Bracton 62. a.)

[400] “Double the Earnest” was to be forfeited by him according to the Reg. Maj. (L. 3. c. 10.)

[401] Quia re vera qui rem emptori nondum tradidit adhuc ipse dominus erit. Hence—Si post emptionem ante traditionem fundo vendito aliquid per alluvionem vel alio modo accrevit quod commodum ad venditorem pertinebit. (Bracton 62. a.)

[402] Emptor, a palpably false reading, as the context proves: it should be venditor, the vendor. See Bracton 62. a.

[403] Vide Bracton 150. b. et seq.

[404] Vide Mirror c. 3. s. 13. Bracton 151. b. Fleta 55. s. 8. We find that Warrantors were sometimes collusively vouched.

Thus, Champions of acknowledged prowess were named, who, being hired for the purpose, readily entered into the Warranty. When such an instance of collusion took place, the Champion was, according to Bracton and Fleta, to lose a foot and a hand—but, in Britton’s time, the Champion and the person citing him were both liable to death.

[405] The Bodleian and Harleian MSS. say the fourth, omitting the mark of interrogation at the end, and leaving the sentence an absolute assertion; which most probably is the true reading, as it corresponds with the Regiam Majestatem. (L. 3. c. 13.)

[406] No Man, says a Law of the Confessor, shall purchase any thing without the City gate, but shall have the testimony of the Prefect of the City, or of some other respectable person, who can be confided in. (LL. Ed. Conf. 1.) A Law of his predecessor Æthelstan is nearly in the same words, except that it tacitly permits purchases without the City Gate, if they did not exceed twenty denarios. (LL. Æthelst. 12.) Some of the Laws of Edgar are admirably adapted to effect the same object, (LL. Sup. Eadg.) which appears to be constantly kept in view by the different Legislators, who preceded Henry the Second.

[407] Ex locato and ex conducto. “Locatio conductio,” says Dr. Wood, “is one word.” Locator is he that lets out to hire, conductor he that hires. (Justin. Inst. 3. 25. pr.)

[408] Si etiam vacuam invenerit et non obligatam. (Bracton 62. b.)

[409] Responsalis. From some expressions made use of by Bracton and Fleta, it has been conjectured, that an Attorney, an Essoiner, and a Responsalis, differed in some respects. (Bracton 212. b. and Fleta L. 6. c. 11. s. 6. 7.) Of this opinion Lord Coke seems to be. (Co. Litt. 128. a.) Yet, we must be cautious, in applying these distinctions to Glanville; for they may, after all, be the result of a much more recent period. Nor is the reading of Bracton, in the passage alluded to, perfectly free from suspicion.