B RACT O N
AND
HIS RELATION TO THE ROMAN LAW.
A
CONTRIBUTION TO THE HISTORY OF THE ROMAN LAW
IN THE MIDDLE AGES.
BY
CARL GUTERBOCK,
PROFESSOR OF LAW IN THE UNIVERSITY OF K(ENIGSBERG.
TRANSLATED BY
BRINTON COXE.
PHILADELPHIA:
J. B. LIPPINCOTT  &  CO.
1866.
[Published by the Author's permission.]




Entered, according to the Act of Congress, in the year 1S66, by
BRINTON COXE,
In the Clerk's Office of the District Court of the United States for the Eastern
District of Pennsylvania.




TRANSLATOR'S PREFACE.
BRACTON'S relation to the Roman law is one of the most interesting
questions in historical jurisprudence. To an American or English
lawyer it is, in fact, a fundamental question.  Notwithstanding the
great originality of the English law, it is manifest that the influence
of the Roman law has affected it to an important extent. In order
to ascertain accurately the nature and effect of that influence, it
is first necessary to determine the position which Bracton, the
father of our legal learning, bears to the Roman law. In this, as in
other matters connected with the early history of the English law,
Bracton is the most important authority. The period at which he
wrote, his ability as a jurist, the richness of matter in his work, all
combine to make it necessary to exhaust the sources of knowledge
to be derived from him.
Bracton's relation to the Roman law has long been considered a
question of much importance.  In 1787 Mr. Reeves expressed the
opinion that it should be thoroughly investigated by some competent
jurist. Although a question constantly recurring, it, however, remained in England unsolved, and even so recent a writer as Professor Maine holds Bracton's relation to the Roman law to be among
the most hopeless enigmas of jurisprudence. The investigation of
Bracton's relation to the Roman law has, however, at length been
undertaken by Dr. Giiterbock, one of the superior judges of the
Stadtgericht of Koenigsberg, and Professor of Law in the University of that city; and the translator has felt that an English version
of the work of a jurist so eminently qualified was called for.
It is perhaps proper to call attention to the difference in the
(iii)




iv                 TRANSLATOR'S PREFACE.
motives which have impelled the author and the translator to their
respective tasks.  The former entitles his work a " Contribution to
the History of the Roman Law in the Middle Ages," and the
purpose of his investigation is to throw light upon the medieval
history of the doctrines and dogmas of the Roman law. The object,
however, with which the translation has been made, is to add to the
sources of information concerning the history of the English law.
Although Dr. Giterbock's work must be regarded as a Roman law
production, the nature of its purpose does not prevent its answering
equally well the wants of the student of English legal history in sifting such parts of Bracton's learning as are of Roman origin from the
more copious materials in his work which are derived from English
sources.
In his own notes the translator has cited English and, if need be,
French translations of German works as being more generally
accessible than the originals. An index and marginal notes have
been added to the translation, and the table of contents has been
enlarged.
PHILADELPHIA, February, 1866.




PREFACE.
THE English law is remarkable for its originality and
for the steady organic consistency of its development.
In respect to such legal characteristics the English are
indisputably the only modern nation which can be compared to the ancient Romans. In studying the law of
these two peoples no one can avoid perceiving parallels
and resemblances, which are all the more interesting
from the very fact that the Roman law has had no
unimportant influence upon the formation of the English.
The English law has long been an object of interest and
study to the author, and he has chosen for the subject
of investigation in these pages that limited period of its
contact with the Roman law for which Bracton, the most
important of the English medieval law writers, is the
great source and authority. He hopes that what is here
offered will not be unwelcome as a contribution to the
dogmatic history of the Roman law in the middle ages.
He would gladly have pursued his investigations to a
later period, but has been prevented doing so by the fact
that such a task would require a residence in England of
some duration.
(v)




vi                     PREFACE.
The author feels the deepest regret that the death of
Dr. Biener should have prevented his submitting this
work, before publication, to the criticism of one whose
knowledge of the English law  was so profound, and
whose writings have been to him a source alike of suggestion and example.
In conclusion, the author has to express his especial
thanks to Dr. Pertz, Geheime Regierungsrath, for most
obligingly permitting the use of the Berlin library by a
non-resident, and to Professor Mittermeyer, Geheimerath,
for most kindly placing at his disposition valuable works
belonging to his private library.
OCTOBER, 1861.




TABLE OF CONTENTS.
INTRODUCTION.
German views of the English law.-English views of the Roman law.-The
history of the Roman law in England.-Roman epoch of Englishli
legal history.-Bracton.-The subject of the present treatise.......... 13
PART FIRST.
Bracton and His Work-General Investigation.
CHAPTER I.
BRACTON'S LIFE-DATE OF HIS WORK.
Biographical details.-Bracton's work.-Investigation of its date.-Additional Note to the Translation upon the date of Bracton's work....... 21
CHAPTER  II.
CHARACTER OF BRACTON'S WORK-SYSTEM-METHOD.
Glanville and Bracton.-Glanville's work.-Character of Bracton's work.Its style. —Ats  division.-Bracton's system.-Analysis thereof. —'Bracton's method.-His merit.................................       31
CHAPTER  III.
BRACTON'S SOURCES AND AUTHORITIES-THOSE OF ENGLISH ORIGIN.
Domestic sources.-Those in writing. -Judicial cases.-Bracton's use
thereof.-Dates of cases in Bracton.-His manner of quoting and referring to them.-Judges.-Use of Glanville discussed.-Statute of
Merton.-Additional Note to the Translation containing a detailed'
statement of the cases and the writs in Bracton............................ 40
CHAPTER IV.
FOREIGN SOURCES AND AUTHORITIES-ROMAN LAW.
Foreign sources.-Romai law.-Roman law in Glanville.-In BracCon's
work.-In his sy tem.-His use of the Corpus Juris.-List of his
express quotations from the Corpus Juris.-Bracton's use of Azo.Use of other writers upon the Roman law discussed..................... 48
(vii)




V1ii                              CONTENTS.
CHAPTER V.
IMPORTANCE OF THE ROMAN LAW IN BRACTON.
Opinions concerning the Roman law in Bracton.-Reeves's view.-Biener's
view.-Spence's view.-View  here maintained.-Discussion of the
Roman la7  in Bracton.-English  medieval law/books following,Bracton.- Force of the Roman law in England.-~Causes thereof.Curia  Regis..........................................................................    56
CHAPTER VI.
CANON LAW.
Canon law in Bracton.-Quotations from the Decretum.-From  the Decretals.-Influence of the Canon law upon the English.-The Ecclesiastical Jurisdiction in England.-Relations between the king's courts
and the courts Christian...........................................................  63
CHAPTER VII.
BRACTON'S INFLUENCE IN ENGLAND-EDITIONS.
Circulation of Bracton's work.-Its place in English legal history. —Its relation to the subsequent English medieval law books.-Thornton.Fleta.-Britton.-Later estimate of Bracton. Year books.-Coke.Editions of Bracton's work.-Modern estimate of Bracton.-His
place in the history of the Roman law.-Note to the Translation
upon the authority of Bracton (see Appendix).............................  67
PART SECOND.
Detailed Investigation of the Roman Law in Bracton's Work,
CHAPTER  VIII.
INTRODUCTORY.
Subject of the Second Part.-General legal notions.-Jus. —Equitas.-Jus
publicum, jus -privatum. —Jus civile.-Lex.-Consuetudo...............  77
CHAPTER IX.
LAW OF PERSONS.
Law of Persons.-Servi, villains.-Potestas dominica.-Libertini. —Statuliberi, statu-servi. -Patria potestas.-Emancipatio.-Sex, sanity........ 81
CHAPTER X.
LAW OF THINGS.
INTRODUCTION.
Law of things —Division of things.-Comparison of the English and Roman
systems as to the law of things.-Influence of the Roman law upon
the  English  doctrine  of possession..............................................   85'




CONTENTS.                                   ix
CHAPTER XI.
POSSESSION.
Possession in Bracton.-Its definition.-Natural and Civil possession. —
Other analytical divisions of possession.-Acquisition of possession.
-Animus possidendi.-Corpus.-Traditio.-Possessio vacua.-Different forms of traditio.-Acquisition  of possession by representatives.-Loss of possession.-Quasi-possession.-Acquisition and
loss of quasi-possession.-Grades of possession............................ 90
CHAPTER XII.
ACQUISITION OF PROPERTY-OCCUPATIO, ACCESSIO, SPECIFICATIO.
Acquisition of property.-Modes of acquisition by the jus naturale (jus
gentium).-Parallel passages from Bracton and Azo upon Occupatio,
Accessio,  Specificatio...............................................................  101
CHAPTER  XIII. 
DONATIO.
Modes of acquisition by the Civil or Municipal law.-Donatio in the English law.-Prohibition of donationes inter conjuges.-Dotis constitutio.-Donationes post factam  feloniam -Requisites of the English
donatio.-Vis.-Metus.-Error.-Error in re.-Error in numero vel
quantitate.-Error circa causam.-Traditio.-Feudal Investiture.Justa causa.-Effect of traditio.-Conflicting claims to possession.Conditional and modified donationes.-Conditions.-Their different
kinds................................................................................... 109
CHAPTER XIV.
USUCAPIO.
Usucapio.-Difference between the law in Glanville and in Bracton.-Prescription in England.-Bracton's view of usucapio.-Additional Note
to the Translation on the ancient limitations of actions for the recovery of land...................................................................... 118
CHAPTER XV.
SERVITUTES.
Res  incorporales. — Predial servitutes. — Kinds  thereof. -  Acquisition
thereof.-Quasi-traditio.-Prescription....................................... 122
CHAPTER XVI.
THE LAW OF INHERITANCE.
The law of inheritance.-The law of inheritance in Glanville's time.-Influence of the Roman law.-Legitimacy and Bastardy.-Legitirius
heres.-Children of putative marriages.-Special Bastardy.-Proof
of Legitimacy.-Supposititious children.-Right of representation:
uncle and nephew.-Partition.-Testaments.-Donatio mortis causa. 125




X                                    CONTENTS.
CHAPTER XVII.
DOWER.
Dos in the English and in the Roman law.-Dos in Bracton and Fleta.Actio dotis............................................................................ 135
CHAPTER XVIII.
THE LAW  OF OBLIGATIONS.
Law of obligations. —Definition of obligatio.-Origin of obligations.-Contracts.-Old English law thereof.-Comparison with the Roman law.
-Pacta nuda; pacta vestita.-Verbal obligations (stipulations).Real contracts.-Extracts from  Bracton relating to stipulations and
Real contracts.-Obligatio per scripturam.-Consensual contracts.Emptio.-Its  requisites.-Locatio  conductio.-Delict.-Quasi-contract.-Quasi-delict.-Extinction of obligations........................... 138
CHAPTER XIX.
ACTIONS-PROCEDURE-PRACTICE.
Actions.-Actions in rem.-Actions in personam.-Mixed actions.-Exceptions.-Procedure.-Ordinary and delegated jurisdiction.-Jurisdiction. -  Intentio, responsio. -  Litis contestatio. -  Interrogations.Proof by charters. —Probate of charters. —Seals. -Exceptions to
charters................................................................................   150
CHAPTER XX.
ASSISA NOVxE DISSEISINE.
Importance of this assise.-Its origin.-Applied to immovables.-Disseisin.-Simple disseisin.-Self-defence against an attempt to disseise.Ejection of disseisor as a remedy.-Plaintiff and defendant in the
assise.-Object of the assise..................................................... 159
CHAPTER XXI.
CRIMINAL LAW.
English Criminal law.-Influence of the Roman law thereupon.-Punishments, crimes.-Outlawry.-Crimen  laesae  majestatis.-Furtum.Injuria.-Homicide.................................................................  166
APPENDIX.
Notes to Chapters VII., XV., and XVIII..................................... 173-175




B RA_ C TON -
ANP
HIS RELATION TO THE ROMAN LAW.








INTRODUCTION.
THE influence of the Roman upon the English law has generally been underrated. Our increased familiarity
in Germany with the English law has indeed led German views of
the English law.
us to abandon the opinion that it can be regarded
as the successful growth of a law purely Germanic in its
origin and formation, and that we can find in England that
unobstructed development of our Germanic law which has
been impeded in our own country.  But notwithstanding
the abandonment of this error, the equally mistaken view is
still prevalent that the development of the English law
has been entirely uninfluenced by the Roman, and that it
should be considered merely the natural indigenous product
of the English soil. This latter opinion was for
a long time adopted in England.  The Roman English views of
the Roman law.
law, like. everything which came from  Rome,
was considered by the English as hostile to their national institutions. Certain politically offensive maxims (e.g. quod
principi placuit, legis habet vigorem) were, indeed, considered special reasons for such an opinion (a). English
judges and lawyers avoided having anything to do with the
Roman law, and were not ashamed to boast of their ignorance
of it, and to show aversion and even contempt for it (b). So
much Was the nation imbued with these feelings that we find
them expressed even in acts of state (c).
(a) Fortescue De Laudibus, c. 33, c. 34.
(b) See the account of the Abbot of Torum's case (22 Edward III. 1349) in
Selden ad Fletam, c. 8, ~ 5, where Skipwith, an eminent lawyer, declares words
referring to the operis novi nunciatig to be mere nonsense: "in ceux parolx
contra inhibitionem novi operis ny ad pas entendement."
(c) Thus in 1388 Parliament declared: que ce royalme d'Engleterre n'estait
devant ces heures, ne a l'entent du roy nostre dit seignior et seigniors du parlement unque ne serra rul6 et govern6 par la ley civill. Rot. Parl., 11 Ric. II.
2                     (13)




14                   INTRODUCTION,
Such opinions are, however, no longer held in England.
A scientific attention has long since been again turned to
the Roman law. Judges and legislators have long acknowledged that the Corpus Juris is an authority which is useful,
or rather indispensable, for the English law. The investigation of legal history, and especially the closer study of the
medieval law books, have produced the conviction that the
Roman law, without indeed any formal reception, had at
certain times not only been held in esteem, but also had enjoyed a practical authority and a partial validity in England.
The same studies have also established the fact that the part
of the Roman law in the development and formation of the
English had been no inconsiderable one, and one certainly
greater than had usually been attributed to it; and that
many legal principles and even whole heads of the English law had been derived from the Roman, or had been
fundamentally influenced by Roman views. The Roman
law can therefore justly be regarded by the English as one
of the sources of their Common law. The Civil and the
Canon laws have, indeed, always had a special sphere of
application over matters which the Common law did not
take cognizance of (d).
The history of the Roman law in England, is still unwritten.
Besides its importance for a proper comprehenHistory of the
Roman law in sion of the English law, it is of high interest for
England.   the history of the Roman law in medieval and
modern times. To write it would indeed be no small task.
The historian must follow, through the Saxon and first
Norman periods, the traces of what was left behind by the
Romans; he must study the return of the Roman law with
Vacarius, and the growth and effect of the new school of
Civilians; he must investigate the penetration of the Roman
elements into practical usage, and their influence upon the
different branches of the English law, just then developing.
He must then show how the full development of the national
law and the confidence felt in its strength and capacity to
(d) Matters under the jurisdiction of the Ecclesiastical and Admiralty Courts.
Cf. Stephen, Commentaries, I. 61-69.




INTRODUCTION.                       15
stand alone, produced an antagonism  between it and the
Roman law, which drove the latter from Westminster Hall;
how the Roman law, nevertheless, gained ground in the ecclesiastical courts, and in the Equity system under pretor-chancellors; and finally how, at length, the increase of social and
commercial intercourse and the absence of a finished national
law of obligations led to the Roman law being appealed to
as a Jus Gentium, whose rich materials might supply the
deficiencies of the younger law in such matters.
Little has been done towards such a task, and, indeed,
even for the collection and preparation of the abundant and
varied materials which exist for it.  The German works
bearing upon  the subject include the following:  C. F.
Wenck's monograph upon Magister Vacarius (1), and the
valuable writings of F. A. Biener, comprising pp. 216-230
of his Contributions to the History of Inquisitorial Procedure (2), his article in Mittermeyer's Critical Journal for
Foreign Jurisprudence, XIX. 160, upon the "Diffusion of
the Roman Law in the Middle Ages, and its Influence upon
the English Law" (3), his treatise upon Glanville and Bracton
inserted as an appendix in the second edition of Savigny's
History of the Roman Law in the Middle Ages, vol. IV.
580-588 (4), and lastly pp. 279 sq., 283 sq. of his work on the
English Jury (5). Savigny hardly mentions England in his
great work: what he says, II. 156-161, bears only upon the
Anglo-Saxon period, and, IV. 411-433, upon Vacarius and
his contemporaries. Phillips in his Political and Legal History of England, I. 255 sq., 224 sq., has only little of importance (6).  The assistance furnished by the English works
bearing upon this subject is not less restricted than that
derived from  the German.  Of the older works Selden's
(1) Magister Vacarius primus Juris Romani in Anglia Professor, etc. Leipsic, 1820.-Tr.
(2) Beitrige zur Geschichte des Inquisitionsprozesses.-Tr.
(3) Kritische Zeitschrift fir Rechtswissenschaft des Auslands, XIX. s. 160 ff.:
"Die Verbreitung des Rom. Rechts im Mittelalter und der Einfluss desselben
auf das Englische Recht."-Tr.
(4) Geschichte des Rom. Rechts im Mittelalter.-Tr.
(5) Das Englische Geschwornengericht. Leipsic, 1852.-Tr.
(6) Englische Reichs- und Rechtsgeschichte.-Tr.
2*




16                     INTRODUCTION.
Dissertatio ad Fletam (e) must be mentioned on account of
a sort of sketch of the external history of the Roman law in
England, in chapters 3-10, which contains many interesting
details, but does not enter into the history of its doctrines
and dogmas.  Duck's De Usu et Auctoritate Juris Civilis
Romanorum in Dominiis Principum Christianorum (f), which
is almost contemporary with Selden's work, has a considerable portion (pp. 320-409) treating of England, but offers
nothing requiring mention. The later English writers upon
the history of the law mostly contain only general references
to the subject. The best that has been written is still to be
found in Reeves's History of the English Law, I. 81 sq., II.
54 sq. (g). Spence, in his recent work upon the Equitable Jurisdiction of the Court of Chancery, which is of great importance for the history of the English law, has paid much attention to the history of the Roman law in England, and has
made researches upon many details of the subject (h).
If the materials for the history of the Roman law in England were brought together, the hundred and
Roman epoch of
English legal fifty years lying between the middle of the
history.   twelfth and the end of the thirteenth century
would be found to be a most productive period.  During
that period, while the amalgamation of the various Saxon,
Danish, and Norman elements was going on, the legal instincts of the English nation were struggling to develop a
uniform domestic law. Marks of the gradual success of this
spontaneous effort are seen in the creation of those peculiar
legal institutions and characteristics which distinguish the
English law from that of other peoples.  At this very time
the English law was brought into immediate and intimate
contact with the Roman law, which was just then one of the
principal and most successful objects of the intellectual culture of the middle ages.  A  new  element was thus introduced into the formation of the English law, whose influence
(e) Printed with Fleta, 1647 and 1686, and in Hoffmanni Historia Juris Romani; Leipsic, 1737. [Translated by Kelham, London, 1771. —Tr.]
(f) Lugd. Batav. 1654. [London, 1649, 1653.-Tr.]
(g) Crabbe's History of the English Law is of much less importance. It is
translated into German by Schaiffner.
(h) See vol. I. 119-121, 123,131, 235, etc. [See Long's Discourses, 86-92.-Tr.]




INTRODUCTION.                    17
was so great and the results of which were so important, that
the whole of that part of English legal history is very properly
styled by Biener its Roman epoch. The influence and effects
of this new factor are best shown in the law books belonging
to that period, the production of which was partially owing
to the impulse of the Roman law. The merit of these works
is such that they for a long time surpassed the subsequent
efforts of English legal literature, and down to the present
day they have always been esteemed as important legal
authorities. The nanres of Glanville, Bracton, Fleta, etc. are
linked with the adoption and practical use of Roman law in
England, just as that of Vacarius is coupled with its introduction. Bracton, however, is in this respect by
far the most important, and his great work, "De
Legibus et Consuetudinibus Anglie," occupies the first place
among these law books on account of the extent and the
value of its contents. It reflects fully and faithfully the then
condition of the law, and depicts most clearly both the progress of the Common law, and the influence, operation, and
effects of the Roman law.
The subject of the following pages is Bracton, and especially his relation to the Roman law. In them
it will be attempted, more fully than has hitherto Subject of the
present treatise.
been done, to determine the general importance
of the Roman law in Bracton's work and in Bracton's day,
and to make an investigation in detail of the Roman elements
in the former which shall separate them from the rest of his
legal matter, so that it may be clearly ascertained how far
the Roman law was adopted in the different institutions and
branches of the English law, and how great was its influence
in England at that particular period.








PA-R T FIRST.
BRACTON AND HIS WORK.-GENERAL INVESTIGATION.








PART FIRST.
BRACTON AND HIS WORK.-GENERAL INVESTIGATION.
Authors treating of Bracton:
Beeves, History of the English Law, II. 86-90.
Spence, The Equitable Jurisdiction of the Court of Chancery,
I. 119 sq., 131, 235.
Biener, Geschichte des Inquisitionsprozesses (History of Inquisitorial Procedure), 220-222.
Von Savigny, Geschichte des Romischen Rechts im Mittelalter
(History of the Roman Law in the Middle Ages), Appendix
XXIV (Biener), 583 sq.
Biener, Das Englische Geschwornengericht (The English Jury),
II. 286. (1)
CHAPTER I.
BRACTON'S LIFE-DATE OF HIS WORK.
HENRICUS DE BRACTON flourished in the middle of the thirteenth century.  The usual as well as the correct Biographicl dspelling  of his name is Bracton (a).  The bio-                 tails.
(a) The name of Bracton was not uncommon at that period. In the Placitorum Abbreviatio there are mentioned Thomas, Robert, and Humfred de Bracton on f. 11, and a de Bracton f. 19. The name occurs in two passages of the
work itself, f. 1, ego Henricus de Bracton animum erexi, and f. 188 b. in the
discussion of error in nomine:-ut si quis alium nominat Henricum de Brocheton, ubi nominari deberet Henricum de Bracton; item......nominando Henricum
(1) To these should be added the chapter on Bracton in Long's Discourses,
pp. 93-108, and the biographical notice of Bracton in Foss's Judges of England,
II. 249.-Tr.
(21)




22   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
graphical details which have come down to us concerning
Bracton are very meagre; even the years of his birth and
death are unknown.  That he was a professional lawyer is
shown by his book, which could only have been written by
one familiar with the actual details of the practice of the
law.  We need therefore have no hesitation in identifying
him with the Justiciarius Bracton, mentioned in judicial
records of 1246, 1252, 1255, and other years (b). In' the
notice of Bracton in Pauli's History of England, it is said
that he was a clerk (c). This may have been the case, and
would indeed account for certain theological remarks found
occasionally in his book (d). His work shows that he was
most familiar with the Roman law, and that he had enjoyed
an unusually excellent education therein, but Spence's assertion that he taught the Roman law at Oxford in the middle
de Brachton ubi nominari deberet Henricum de Bracton. The spelling Bracton
has not, however, been always followed. Selden ad Fletam, c. 2, ~ 2, has
given others: Breton, Bratton, Brecton, Britton, Bryckton. [Bratton is a
modern local name in England.  The name was originally Brachton and Bracton, but was transformed to Bratton by the omission of the guttural, in accordance with a well-known linguistic law. —Tr.]
(b) Placitorum Abbreviatio, f. 138, ex 36 Henry III. (1252): "Nisi Henricus
de Bratton prius venerit in partes Devoniae;" ibid. "et lectum est breve Dno.
H. de Bratton directum, per quod Dom. Rex ipsum Justiciarium," etc. In the
New Fcedera, I. 320, there is a record of an assise of the 39 Henry III. (1255),
held "coram justiciariis H. de Bathonia, Henrico de Bracton," etc. Spence, I.
119 m., gives a final concord made 30 Henry III. (1246), "coram H. de Bathonia,
Jeremia de Caxton et Henrico de Bracton, justiciariis et aliis domini regis fideli.
bus."  [In the Excerpta Rot. Fin. there are many records of payments for
assises before Bracton from the years 1250 to 1267, inclusive; see the index
under Bratton.  From these entries and those in Dugd. Chron. 13, Abbrev.
Plac. 128 (three times), Seld. Heng., 120, Bracton was probably upon the judicial bench without interruption during the whole period from 1245 to 1267, if
not longer. In 38 Henry III. (A.D. 1254), he received a grant by patent, for
his chambers, of the London mansion of the deceased Earl of Derby during the
minority of the son and heir of the Earl. (Duf. Orig., 56.) —Tr.]
(c) Pauli, Gesch. von England, III. 823. [Bracton was Archdeacon of Barnstaple; v. Foss, 1. c.-Tr.]
(d) E.g. f. 2, the denunciation of judicial immorality with quotations from
St. Augustine; f. 106, quotations from the Book of Job, c. 39; from Deuteronomy, c. 86. Bracton, f. 188 b. (v. note (a) above), adds to his own name by
way of example the qualifications precentor and dean, perhaps referring to his
former station.




CHAP. I.]    BRACTON'S LIFE-DATE OF HIS WORK.                            23
of the thirteenth century has not been conclusively established (e).
The legal treatise  of which  Bracton  is the  author, and
which  has  alone  rescued  his  name  from   obBracton's work.
livion, bears the  following  title  in  the printed
editions:
Henrici de Bracton de Legibus et Consuetudinibus Anglie
Libri quinque, in varios tractatus distincti.
It is first of all indispensable in this investigation, to ascertain the time when the work was composed.  It Investigation of
is certain  that it was written  in  the  reign  of               its date.
Henry III., for the phrases Rex noster, rex  f., qui nune est
and the like, show that king to have been still living. It is
true that there is one passage which alludes to Edward I.
and to a change in  the law  made by the  statute  of Westminster of 1275, but it is of no significance or importance (f).
The whole contents of the work  as well as other decisive
considerations, prove that it must be discarded as the subsequent interpolation of a foreign hand. Such indeed the passage would seem  to be from  its external appearance, as it is
(e) Spence, I. 119 m., cites as authority the anonymous author of the article
on Bracton in the Penny Cyclopoedia. The authority for this must be Duck,
De Usu et Auctoritate Juris Civilis, 382; who says: "erat enim Bractonusjuris
csesareiprofessor Oxonii." Thornton, the author of an epitome of Bracton, styles
his work, Summa...... composita a magistro H. de Bryctona. Does the term
magister refer to any academic functions? [In the church of St. Michael at
Minehead, in Somersetshire, there is a monument with a robed effigy and a
tomb supposed to be Bracton's.  Near Minehead is Bratton Court, where our
author is said to have lived, and his family resided for many generations.
This is not, however, the only place of that name in England which claims
him; see Murray's Handbook for Somersetshire, p. 203.  References to pedigrees of Bratton and Bracton are given in Sims's Index to Pedigrees in the
British Museum.-Tr.]
(f) This passage is on f. 253 b. in the body of the breve de assisa mortis antecessoris:
et si obiit post ultimum reditum regis Johannis patris nostri de Hibernia
in Angliam  (et tempore regis Eduardi mutalus fuit terminus iste post
coronationem regis Henricipatris ipsius regis Eduardi).
This new limitation was in fact introduced by the statute 3 Edward I. c. 39.
The addition is therefore made after that statute, probably by the hand of a
practitioner,




24  BRACTON AND IIS RELATION TO THE ROMAN LAW. [PART I.
found placed between brackets.  As to a more precise determination of the time of the composition of Bracton's
work, opinions differ. The English authorities consider it
to have been written between the years 1262 and 1268
(Spence circa 1270). Biener, however, thinks that Bracton
composed his work within the years 1240-1255 (g). I cannot
myself accept either of these views. After examining and
comparing the data, I am  of opinion that the work was
written within the years 1256-1259.' The great number of judicial cases, the dates of which are
given in the respective years of the king's reign, and the relation which the work bears to particular statutes and to different events of the time, serve as bases for the determination
of this question.
Bracton's work must at all events be more recent than
the year 1236, even to suppose the earliest possible date, for
the statute of Merton, promulgated in that year (20 Henry
III.), is expressly mentioned in two places, and some of its
provisions are given (h). However, not only the year 1236
but also the year 1240, the commencement of the period
maintained by Biener, are both too early. For it is not the
fact, as Biener thinks, that Bracton cites no cases dated
later than 22-24 Henry III. (1238-40), as I have found a considerable number belonging to later years, viz. 30-33 and
even 38 Henry II. (1246-1254) (i).  The time when Bracton's work was written is thus made far later than 1240, and
even as late as 1255, the end of the period maintained by
Biener.  Another decisive circumstance, however, which has
hitherto remained unobserved, compels us to place still later
our earliest limit. Bracton gives the following example, f.
47, in speaking of conditional donationes:
"ut si dicatur: do tibi tantum  terre......si Comes Ricardus effectus fuerit Rex Alemannus."
(g) Reeves, II. 90. Spence, 120 b. Biener, Inq. Pr., 220. Eng. Geschw.,
II. 28 b.
(h) Bracton, 227, 416 b.
(i) E.g. Bracton, 413: anno regni regis Henrici tricesimo; f. 414: anno
tricesimo primo; f. 241: anno regis H. XXXII; f. 339 b.: anno regis H.
XXXVIII.




CHAP. I.]   BRACTON'S LIFE-DATE OF HIS WORK.                25
Bracton must here have alluded to the election of Richard
Earl of Cornwall, brother of Henry III., as German Emperor.
It is hardly credible that he should have accidentally thought
of the possibility of such an event, and we cannot but believe
that he knew of it as having already taken place or as nearly
impending.  The chronology of that election and of its attendant circumstances is well known: William  of Holland
died in January, 1256, the first proposals to Richard were in
the spring following, and the negotiations with the princes
of the Empire were made during the further course of the
year.  Richard's election took place on January 13th, 1257,
and his coronation in the following May (j).  These facts
most certainly demonstrate that Bracton had not completely
finished his work before the years 1256 or 1257, and that it is
impossible that Biener's dates can be correct.  Whether we
must descend even later than the time thus ascertained will
depend upon the meaning of another passage, f. 159, which
quotes a case of the 46th year of Henry III. (1262) (k). If
this citation be genuine and accurate, we must of course
assent to the English view  that Bracton's work is more
recent than 1262. Such, however, is not the fact. It must
be remarked in the first place that this case is the sole citation from  a series of years, which being the most recent
should have furnished most material to the author.  The
possibility of an error in the date of the case is also increased
by the discordance of the texts, one of which has the manifestly false reading 56 instead of 46 (1), while an emendation
of 36 reconciles it with our other conclusions. It must be
here recollected that XXXXVI, and not XLVI, was written
in the manuscripts. Against the genuineness of the passage
is the fact that it is not interwoven in the text according to
Bracton's usage, but stands alone without any connection
with what goes before, very much as if it were the marginal
note of another and later hand.  The conjecture that it is
(j) For details v. Pauli, Gesch. von England, III. 707-710.
(k) Casus de Petro de Sabaudia......coram consilio dom. regis apud Westmon.......anno regni regis H. XLVI. de termino Paschae.
(1) 56 Henry Ill.  1272; Petrus de Sabaudia, however, was dead in 1269;
New Foedera, I. 482.




26   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
either an error or (as Biener thinks) a subsequent addition,
becomes a certainty, if we consider the internal evidence, for
it can be proved that Bracton must have written his work
before 1262. The English authorities indeed fix upon 1267
as the latest possible date, on the ground that Bracton could
not have avoided mentioning the important changes in the
law  made by the statute of Marlbridge (November, 1267, 52
Henry III.), had its provisions been known to him. In point
of fact he could not have known of another statute, made
some eight years earlier in  1259 (43 Henry III.), entitled
" Provisiones factce per Regem  et Consilium suum."  This statute
of 1259, which appears to.have been made under the influence
of the council which had been forced upon the king by the
barons (2), made alterations in the law which were repeated
in certain provisions of the statute of Marlbridge (m).   Not
only does Bracton  pass over in  entire silence the important
provisions of the statute of 1259 concerning feudal tenures
and the actions relating to dower and advowsons, but he also
expounds the old law and dwells upon its defects (n). It must
therefore be concluded that this statute could not have been
knowj  to  him  when  he was writing  his work, and  that
(m) Printed in the Statutes of the Realm, I. 8. The preamble runs: Anno
ab incarnatione Dn. MCCL0 nono regni autem H. regis fil. regis Johann. XLIIIo
convenientibus apud Westmonast. in quindena Sti. Michaelis ipso domino rege
et magnatibus suis, de communi consilio et consensu dictorum regis et Magnatum factse sunt provisiones subscriptse, etc.
(n) Bracton, 247.
(2) By the provisions of Oxford, which had been forced upon the king in
1258, his power was, in a great measure, superseded. While they were enforced,
the judges depended for their continuance in office upon the authority of those
who had imposed them upon the king. During this period the provisions, or
statute of 1259 mentioned in the text, were enacted at Westminster (43 H. 3,
Stat. R., fol 8). Bracton-as printed records prove-in the mean time, and
afterwards, exercised his judicial functions without interruption (see particularly Rot. Claus., 44 H. 3, cited Dugd. Chron. 19, also Rot. Fin. II., A.l. 1258
to 1267). Political reasons therefore would not have prevented him from referring to the enactments of 1259 if they had been passed before he wrote.
Indeed it may be doubted whether the binding effect of these provisions of 1259
(as distinguished from those of 1258) was ever disputed by anybody. Before
the re-enactment at Marlbridge in 1267 (52 H. 3) the provisions of 1259 (43
H. 3) had been published in 1260 (44 H. 3) and in 1262 (47 H. 3), as appears




CHAP. I.]    BRACTON'S LIFE-DATE  OF HIS WORK.                          27
the completion of his book must have been before the year
1259, and consequently before the date of the case in question (1262). Under these circumstances that date ceases to
be of any importance.
In the foregoing remarks we have sought to show that it
is nearly certain that Bracton's work was composed within
the years 1256-1259, and conjecture may go yet a step further.
As our author speaks of the election of Richard as a contingent event, it can scarcely be supposed that, after it was
known to have actually taken place, he would have made its
occurrence the subject of a condition. Bracton too, in another place, calls Richard, Comes Ricardus (o), while after his
election he is spoken of by his contemporaries and in official
documents  under titles  expressing  his new  rank, such  as
Rex  Alemannorum, Rex  Romanorum, and  Rex  Ricardus (p).
(o) Bracton, 288 b.: ut si interrogat, quis fuit apud concilium London., et
respondeat quis, quod Rex et Comes Ricardus (ut credit).  [This must have
been the Parliament or assembly of magnates at London after Easter, A.D. 1254
(38 H. III.), mentioned by M. Paris (Edit. 1640), 887. The king's message was
sent to them under his seal, and they waited in vain for three weeks the arrival
of Earl Richard. —Tr.]
(p) E.g. Mathew  Paris (Edit. 1640), 160, 161 sq.; New  Feedera, I. 353,
where he is first called "Ricardus......Romanorum in regem electus;" ibid. 356,
358, 377, 396.
from the close roll of the former, and patent roll of the latter year cited Stat.
Realm, fol. 8; and there is an entry before justices itinerant A.D. 1261 (45
H. 3), quia de novo provisum est per consilium domini Regis quod murdrum  de
csetero non adjudicetur in regno ubi infortunium tantummodo presentatur, sed
locum teneat de interfectis per feloniam et non aliter (Fleta, Edit. in fol. f. 70,
note) in a case in which one of the provisions of 1259 was acted upon as in
force. It is the one which was re-enacted by the 25th chapter of the statute
of Marlbridge. No such enactment could have been in force when Bracton, 135,
wrote, de iis qui mortui sunt per infortunium, nullum erit murdrum, licet in
quibusdam partibus de consuetudine aliter observetur. Of such local usage, contrary
to the general usage as he states it, an instance in 32 H. 3, Gloucestershire,
may be cited from the same note to Fleta. After the statute of 1259 no such
usage could have been observable anywhere within the realm.
It is perhaps not here out of place to refer to the record printed in Madox,
Exch. (4to.), II. 257 b., from which it appears that in the year 1258 (42 H. 3)
Bracton was called on to return to the proper depository the rolls of an iter of
the early part of the reign of Henry III., to which he had made frequent references in his text, and which, doubtless, had been in his possession while
writing the work.-Tr.




28   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
The conclusion, therefore, does not seem  hazardous that it
was before the actual election  and pending  the previous
negotiation, i.e. in the course of the year 1256, that Bracton
wrote at least that part of his work in which such a contingency as Earl Richard's election would naturally suggest
itself to him (3).
ADDITIONAL NOTE TO CHAPTER I.
Bracton was probably engaged for many years in writing his book;
Date of Bracton's and he may, after his work of authorship had ceased,
work.    have made occasional additions to the manuscript without revising the original text. Biener may have found one or more
passages written as early as 1240. The passage on fol. 327 b., cited
post Chapter XVI., note (r), was probably written before the death
of Eleanor of Brittany in 1241.  The phrase quamdiu casus regis
duraverit probably meant as long as she might live.  She was, on
account of this casus regis, a prisoner of state until her death.  In
the passage on fol. 115 b., proponi solent verba ista per Martinum
de Pateshull, the word solent in the present tense, might be supposed
to import that Martin de Pateshull, who died in 1229 (M. Paris, Ed.
1640, p. 363), was living when it was written. But the text, if corrupt or loosely written, may mean that judges were, in Bracton's time,
in the habit of using the words which had first been used by M. de
Pateshull.
It has been clearly shown in the text that Bracton's work of authorship continued until 1256 or 1257. He was, however, on the judicial
bench as late as July, 1267. The reference, f. 159, to the case in 46
H. III. (A.D. 1262), may therefore have been added by himself.  But
that he made no general revision of his work after 1259 seems to be
sufficiently established by his omissions to correct his text by references
to the statute of that year.
(3) The words of Bracton cited above are si Comes Ricardus effectus fuerit
Rex Alemannus (not electus fuerit). After Richard's election, which became
known in England in January, 1257, it was for some time uncertain whether
he would ever be crowned-effectus Rex. His coronation in May, 1257, was
forcibly opposed in the interval with bloodshed. The passage in Bracton may
therefore have been written between January, 1257, and the time when the
coronation of May, 1257, became known in England.-Tr.




CHAP. I.]   BRACTON'S LIFE-DATE OF HIS WORK.                   29
The consideration of Bracton's doctrine concerning the king's being
suable is not without interest in this connection. From Bracton's
remarks, 171 b., 212, it appears that redress from the king was not
obtainable by suit or action against him, but only by way of petition.
From what is said, 382 b., it appears that where the king was a warrantor he could not be vouched to warrant, for non potest vocari sicut
vocantur privatse personae quia summoneri non potest per breve. His
remarks on 171 b. are, however, qualified by the following striking
passage: nisi sit qui dicat quod universitas regni et baronagium
suum hoc facere debeat et possit in curia ipsius regis.  This passage Bracton may have written long after he wrote others concerning
royal power in England, which on 5 b., 34, 107, he labors to distinguish from Roman imperial power, but without clearly doing so.
The passage just given from 171 b. was probably written between
the parliaments of 1255 and 1258. The parliament of 1255 exacted
from  the king certain concessions which he peremptorily refused
(M. Paris, 904, 905). At the parliament of Oxford, in 1258, he was
compelled to make these and other concessions. By these provisions
of Oxford, he was subjected, as his father had been in 1215, to the
control of a standing executive council (Rymer, I. 654, 655 and additions New Foedera, I. 377, 378; Chron. Lond., 37; M. Par. Addit.
215, etc.). The result of his endeavors to shake off this control was
the civil war which began six years afterwards, and ended in the reestablishment of his former authority.  It is interesting historically
that this passage of Bracton as to the possibility of a compulsory
limitation of the royal authority, was probably written while the revolutionary measures attempted at Oxford in 1258 were in prospect or
agitation.
English antiquarians have thought that Bracton's doctrine that the
king is not suable, was contradicted as to the age of Bracton by the year
books (22 E. III. 3 b., 24 E. III. 55 b., and 43 E. III. 22), which state
that in the time of Henry III., and previously, the king could be sued as
any other person, though it had afterwards been ordained otherwise by
Edward I.  One of the judges remarked that he had himself seen an
original process against King Henry.  But records of the reign of
John show that before Magna Charta he could not be sued, or could
prevent the trial of a suit against himself (Rot. Cur. Reg. Mich., 1
Joh., print. vol. II. pp. 77, 78, 95).  Records of John's reign, however, show also that while that king was in subjection to the executive
council established by his Magna Charta, he was sued in several instances by those whom he had, in the previous troubles, dispossessed
3




30   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
extrajudicially of their land (Close Roll, 17 Joh., print. vol. I. p. 216).
The statement of the judge therefore who had seen such process
against Henry III. may be fully credited if it is considered as applicable to the period in and for some time after 1258, when the provisions
of Oxford were acted upon as in force. But the great charters of his
reign (A.D. 1216, 1217, 1225) contained no provision subjecting him
to the control of a standing executive council such as had been forced
upon his father, or such as was forced upon himself in 1258. Bracton,
therefore, writing before that year, was doubtless right in his doctrine
that the king was not suable adversarily. In the pacification carried
into effect by the statutory edict of Kenilworth (51 H. 3, A.D. 1266,
1267), it was provided that every one should sue for justice to the
King's Court, and should answer in justice, as had been hitherto usual
before the time of the late troubles (Stat. Realm, I. fol. 12). Whether
this enactment applies to the question is perhaps doubtful. But from
records of the year 1272 (56 H. 3, Rot. Fin., vol. II. pp. 508, 514,
515, 563, 564, 574), it appears that when lands of a deceased tenant
in capite were taken into the king's hands the only remedy of his
widow for her dower, of his coheiresses for partition, or of an heir
entitled to restitution in order to obtain it, was by petition, and that
redress was accorded as of grace and not as of right. Before this,
while the king was the prisoner of De Montfort, who conducted the
government in the king's name, the form of proceeding in such cases
seems to have also been by petition (9 Nov. 1264, 49 I. III. ib. pp.
416, 417).
Of the troubles of that reign one of the causes appears from the
chronicles to have been, that justice was not compulsorily obtainable
from great officers of state, or from members of the royal family.
That it could not in fact have been obtainable compulsorily from the
king seems therefore clear.-Translator.




CHAPTER II.
CHARACTER OF BRACTON'S WORK-SYSTEM-METHOD.
THE character of Bracton's work is placed in a very clear
light, if we compare it with the legal treatise Glanville and
known  as Glanville's, which was written some                 Bracton.
seventy years earlier.
Ranulph de Glanville was the well-known Great Justiciary
and general of Henry II.  He is usually regarded  Glnville's work.
as the author of the treatise, which has come
down to us with the following title:
Tractatus de legibus et consuetudinibus regni Anglice tempore regis Henrici secundi compositus, justitiae gubernacula tenente illustro viro Ranulpho de Glanvilla.
The date of Glanville's work is shortly anterior to the year
1190 (a). The title, like Bracton's, is: De Legibus et Consuetudinibus Anglihe; a phraseology which seems to indicate
it to be a view of the whole Anglo-Norman law. The author,
however, confesses in his preface that it was out of the power
of any one in that age to embody the whole law and customs
of the land in the shape of a general view in writing. From
the outset he confines himself to matters relating to the
(a) Concerning Glanville, v. Reeves I. 221-227. Phillips, Englische Rechtsgeschichte I. 231-242; Biener, Inq. Pr. 218-220 and in Savigny IV. 580-583;
Spence I. 119. Besides the editions mentioned by Biener, there is one in the
Koenigsberg library printed in London by Richard Tottel without date. I cannot decide whether or not, it is the same as Sir William Staunford's edition of
1554. It is well known that Glanville's authorship is disputed, but there are
preponderating reasons in favor of it, especially in the mention made of him
in different forms given as examples. [See also Beames's introductory remarks
to his translation of Glanville, and Foss, Judges of England, I. 376.-Tr.]
(31)




32   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
practice of the Curia Regis and to the principles of law most
frequently arising in that court (b).  We must not therefore
expect to find a system of law in Glanville. Such an attempt,
as the author himself says, must have failed, in consequence
of the then confused state of the law, which was still in the
first commencement of its progress toward being harmoniously perfected and consolidated.  What Glanville gives,
is a short sketch of the course and forms of procedure intended for immediate practical use (ad adjuvandam memoriam).  He only subordinately develops and explains the
substantive rules of right; these are, for the most part, only
discussed incidentally, and chiefly in their relation to and
bearing upon legal procedure, to the rules of which they
are generally appended.  These circumstances have given
rise to that poverty upon many matters of which the reader
is often painfully conscious, and to the often superficial
and interrupted commentary connected therewith, which is
especially obvious in the later books (c).
It is quite otherwise with Bracton. The development of
Character ofBrac- the English law had been great and constant
ton's work during the seventy years lying between him and
Glanville.  The completion of the feudal system, the new
forms of action (assises), the recognition of judicial decisions
as new authorities and productive sources of law, the impulse
given by the Roman law, and finally the scholastic spirit animating thie lawyers, had since Glanville's time developed the
English law into an artistically organized and often overrefined system. The difficulty of mastering the subject was
therefore constantly increasing, and a knowledge of the law
was no longer to be acquired by its mere use, but only by
a regular course of study. The law had now reached a stage
(b) Glanville; prologus: Leges autem et jura regni scripto universaliter
concludi nostris temporibus omnino quidem impossibile est cum propter scribentium ignorantiam, cum propter earum multitudinem confusam; verum sunt
qusedam in Curia generalia et frequentius usitata quae scripto commendare non
mihi videtur prsesumtuosum.
(c) Biener's conjecture, that Glanville died before the entire completion of
his work, is not improbable. His death occurred in 1190 at the siege of
Acre.




CHAP. II.]  CHARACTER OF HIS WORK-SYSTEM-METHOD.  33
in which a legal science is naturally wont to be developed.
This new scientific tendency, the obvious insufficiency of a
jus non scriptum (d), together with the multitude of new
questions, doubts, and deficiencies, explain the want of some
written view  of the rules of the law.  Such a work was
needed not only to direct the studies now necessary and to
guide practitioners themselves, but also to protect suitors
against ignorant or malevolent judges, who at that period
might very possibly make their own arbitrary will a substitute for law.
It is Bracton's merit to have perceived this want and to'
have taken upon himself the task of supplying it. His work,
which is the first scientific commentary upon English law,
at the same time pursues the practical purposes just referred
to.  He remarks in his preface:
"Cum autum hujusmodi leges et consuetudines per
insipientes et minus doctos,...... sepius trahantur ad
abusum, et quse stant in dubiis, et opinionibus multotiens pervertuntur a majoribus, qui potius proprio
arbitrio quam legum  auctoritate casus decidant......ad instructionem saltem  minorum animum  erexi ad vetera
judicia justorum perscrutanda.....facta ipsorum consilia
et responsa......in unam summam redigendo" (e).
The contents of the work correspond to these aims. rThe
author displays to the reader a clear picture of the then existing law, drawn in copious detail and not in general outlines.  His view of the law is strictly faithful to truth, and is
digested into a completely logical system. In it, all parts of
the law receive consideration: procedure in its manifold
complexities, its minute formalities, and all its stages; the
substantive rules of law and property, which are no longer
made subordinate to those of procedure; the feudal system
and its legal constitution; the different interests in immovables; the law of movables; and finally, that of obligations,
which is, however, but briefly considered. Besides these,
(d) "Sola Anglia usa est in finibus suis jure non scripto; " Bracton, f. 1.
(e) Cf. Bracton, 1 b.: Intentio autem est......instruere et docere omnes, qui
edoceri desiderant, qualiter —etc.




34   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
criminal law and procedure are treated with equal detail,
and even questions of political and ecclesiastical law are
included within  the  range of the  commentary.   Strictly
speaking, the commentary is limited to the general common law of the realm, but there are also occasional reflections upon particular provincial customs as hints for the
judges on their eyres (f).  The relation of Glanville's to
Bracton's work is therefore very much that of a collection
of legal forms to an elaborate and systematic treatise upon
the law.
In the matter of style also, Bracton is far above his predecessor.  Both  use the Latin, the literary and
its style.
judicial language  of the times in which they
lived (g).  But while Glanville adheres intentionally to the
often barbarous judicial style of his day —"stylo vu]gari et
verbis curialibus utens" (Prol.)-Bracton writes a very readable Latin.  Although far from  being classical, it always is
adapted to the subject, and expresses the author's meaning
clearly and suitably, while sometimes rising to a certain
higher strain.  Bracton's style  need  in  no  case avoid  a
comparison with that of his contemporaries, the Italian law
writers especially (h). Here and there the monotony of the
commentary is broken by the introduction of versus memoriales (i), or by digressions, which show the general cultivation of the author (j).
The work in the printed  editions is divided  into  five
diisi   books (k).  The two first books are entitled de
rerum  divisione and de adquirendo rerum  dominio,
(f) Bracton, 12, 330. Consuetudo in civitate Lincolniae, in villa de Gipevico.
(g) Anglo-Saxon law phrases are occasionally found in Bracton; see f. 40.
124 b. 150 b. 154 b. 185.
(h) Reeves, II. 88, goes quite too far when he makes Bracton's style superior
to that of most of his contemporaries.
(i) E.g. f. 18 b.: Scito, quod ut modus est, si conditio, quia causa. F. 217 b.:
Cum sit modus in rebus, sunt certi denique fines. F. 16 b.: Re, verbis, scripto,
consensu, traditione, junctura, vestes sumere pacta solent. F. 438.: Nam
dicunt E vel A quotquot nascuntur ab Eva.
(j) E.g. The astronomical explanation of the intercalary day, f. 359.
(k) Selden ad Fletam, 2, 1 4, remarks that this division is not in all the
manuscripts. It may not indeed have originated with Bracton.




CHAP. II.]  CHARACTER OF HIS WORK-SYSTEMI-METIOD.  35
and are divided into chapters and paragraphs.  The other
books have no headings, and are divided first into tracts,
and these again into chapters and paragraphs.  The third
book contains two tracts, entitled respectively, de actionibus
and de corona. The fourth book is composed of seven tracts,
the first five of which are called after the-assises of which
they treat; the two last tracts are entitled respectively de
actione dotis and de ingressu. The fifth book contains five
tracts, entitled respectively de breve de recto, de essonis, defaltis,
warrantia, and de exceptionibus. Bracton is quoted in two
ways, either according to the paging, or according to the
division just mentioned (e.g. IV. 1. 20. ~ 4., i.e. Lib. IV.
tract. 1. c. 20. ~ 4). Many prefer the former method on account of the great length of many paragraphs and the agreement of the paging in the two editions, and I have myself
adopted it.
fBracton's system does not entirely coincide with the division just spoken of. The matter of the work is
Bracton's system.
divided into two principal, although unequal,
parts. The first part, concluding with Lib. III. tract. 1. c.
4. fol. 104 a., contains the substantive and fundamental rules
of the law; the other, running from fol. 104 b..to the end, is
devoted to legal procedure. This division, however, is not
rigorously adhered to in details. The main features of the'
system  of law upon which the first part is based are not
original with Bracton, but are taken from  the well-known
trichotomy of Justinian's Institutes, "quod omne jus pertinet
vel ad personas, vel ad res, vel ad actiones." Its analysis is
as follows (l):
The Introduction, Lib. I. c. 1-5. f. 1-4, after
Analysis thereof.
which are treated:
A. De personis et de divisione personarum (1), Lib. I. c. 6-11.
f. 4 b.-7 b.
(1) The heading of the first book, "de rerum divisione," in the printed
editions, is manifestly incorrect.
(1) Cf. the analysis or summary of Bracton in Reeves, II. 86.-Tr.




36   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
B. De rebus.
I. De rerum divisione Lib. I. c. 12. f. 7 b.-8.
II. De adquirendo rerum dominio:
AA. Exjure naturali: herein of occupatio, accessio,
specificatio, Lib. II. c. 1-3. f. 8 b.-10 b.
BB. Exjure civili:
1. Ex causa donationis inter vivos (m) Lib. II. c.
5-25. f. 11-59 b.
a. rerum  corporalium  L'. II. c. 5-22. f. 11
to 53.
Tnder this rubric:
de possessione, traditione, Lib. II. c. 17 to
21. f. 38 b.-52;
de usucaptione, Lib. II. c. 22. f. 51 b.-52 b.;
b. rerum  incorporalium  Lib. II. c. 23-25. f.
52 b.-60.
2. Ex causa donationis mortis causa Lib. II. c.
26. f. 60-61.
3. Ex causa emptionis Lib. II. c. 27. f. 61 b.
4. De locato, conducto Lib. II. c. 28. f. 62.
5. Ex causa successionis (n) Lib. II. c. 29-38. f.
62-91 b.
6. Ex causa dotis Lib. II. c. 39. 40. f. 92-98.
C. De actionibus Lib. III. tract. 1. c. 1-4. f. 98 b.-104 b.
Under this; de obligationibus ibid. c. 2. f. 99-101.
The transition from the first to the second part of Bracton's system  is brought about by the commentary upon
courts and jurisdictions, connected with the division of actions. The discussion of that subject occupies chapters 5-12
of the first tract, and the first two chapters of the second
tract of the third book.  The commentary upon procedure
then begins on f. 118, and treats first of criminal matters.
Its analysis is as follows:
(m) The donatio inter vivos in the English law comprehended all manner of
alienations of a feudal character, and is not to be likened to the Roman donation. Cf. infra, Chapter XIII.
(n) Under this head Bracton treats of wardship and the legal relations derived from tenure (homagium, relevium etc.).




CHAP. II.]   CHARACTER OF HIS WORK-SYSTEM-METHOD.   37
A. Actiones criminales:
I. Crimina capitalia Lib. III. tr. 2. c. 3-35. f. 118 to
154.
Under this: de crimine lesse majestatis Lib. III.
tr. 2. c. 3. f. 118-120.
de  crimine  homicidii Lib. III. tr. 2. c. 4-22. f.
120 b.-143 b.
de furto (o) Lib. III. tr. 2. c. 32-35. f. 150 b.-154 b.
II. Crimina minora Lib. III. tr. 2. c. 36. 37. f. 155 to
159 b.
B. Actiones civiles:
AA. Actiones reales.
I. Possessorix:
(A). de possessione propria:
1. liberi tenementi,-assisa novc disseisince Lib.
IV. tr. 1. c. 2-36. f. 160-220;
2. servitutum   et jurium-assisa de communia
vel de nocumento Lib. IV. tr. 1. c. 37-50.
f. 221-236 b.;
3. juris patronatus-assisa ultimce prcesentationis
Lib. IV. tr. 2. f. 237-252;
(B). de possessione aliena:
1. Assisa mortis antecessoris, Lib. IV. tr. 3. f.
252-280 b.
2. Breve de consanguinitate, Lib. IV. tr. 4. f. 281285.
3. Assisa utrum (p), Lib. IV. tr. 5. f. 285 b.-296.
4. Actio dotis, Lib. IV. tr. 6. f. 296-317 b.
II. Petitorice, vel de causa proprietatis:
1. Breve  de  ingressu Lib. IV. tr. 7. f. 318  to
327 b.
(o) In chapters XXVI.-XXXVII., some other crimes are treated of, viz., de
plagis, roberia, combustione, raptu virginum etc.
(p) The assisa novae disseisinae corresponds to the remedium spoliationis of
the then Canon law. The assisa ultimae presentationis was the possessory
action for advowsons.. The assisa mortis antecessoris enabled heirs to recover
vs 5D ne se  peIti c
a seisin of realty resembling the bonorum possessio of the Roman law, and the
breve de consanguinitate served similar purposes. The assisa utrum was for
the purpose of deciding, an feudum sit laicum vel ecclesiasticum.  All assises
applied only to immovables.




38   BRACTON AND IIIS RELATION TO THE ROMAN LAW. [PART I.
2. Breve de recto Lib. V. f. 327 b.-436.
UTnder this (2);
a. de summonitione et essoniis Lib. V. tr. 1
and 2. f. 333-364;
b. de defaltis Lib. V. tr. 3. f. 364 b.-380;
c. de warrantia Lib. V. tr. 4. f. 380 b.-399 (q).
d. de exceptionibus Lib. V. tr. 5. c. 1-30. f.
399 b.-439.
BB. De actione personali Lib. V. tr. 5. c. 31. 32.
f. 439-443 b.
CC. De actione mixta Lib. V. tr. 5. c. 33. f. 443.
444.
So much for Bracton's system.-His method of treatment
in details, presents nothing which requires special
Bracton's method.
examination.  The effect of the education which
Bracton undoubtedly received in the contemporary school of
Roman jurisprudence, is plainly seen in the general character
of his commentary.  Thus, like Placentin, Azo and other
Glossators of the age, he arranges his subject by distributing
its divisions under interrogatory headings, such as: "quid
sit donatio? qualiter dividatur? quis donare possit, quis non?
quse res possit donari et quse non? cui donare possit et cui
non? quse exiguntur ad hoc, quod valeat donatio?" etc. (r).
There is this difference, however, between Bracton and the
Glossators: with the latter, the exegetical character of the
commentary is prominent, while with Bracton it naturally
gives way to the dogmatic, and especially the practical, con(q) The breve de ingressu was used for recovering the possession of immovables in cases where it had originally been voluntarily parted with. The breve
de recto was, to speak in Roman law language, a vindication for land [cf.
Spence, I. 219.-Tr.]. Essoniae were the grounds excusing those who would
otherwise be in contumacy (defalta). Warrantia was the engagement to secure
against eviction.
(r) Bracton, 11 et al.
(2) Reeves, II. 87, analyzes the fifth book somewhat differently. In the
table of contents it is entitled Liber quintus de recto, but in the heading on f.
327 b. it is described as Liber quintus, qui dividitur in quinque tractatus,
quorum primus est de recto.-Tr.




CHAP. II.]  CHARACTER OF HIS WORK-SYSTEM- METHOD.  39
sideration of the law. The practical point of view is much
the most important with our author.
Finally, when we consider the clearness and simplicity of
Bracton's commentary, the richness of his matter,      merit.
examples and forms, together with his apt and
appropriate handling of doubtful points and questions, we
cannot fail to assign his book a high rank among works of
its kind, and acknowledge that it completely fulfills the
author's intended purposes.




CHAPTER III.
BRACTON'S SOURCES AND AUTHORITIES-THOSE OF ENGLISH
ORIGIN.
THE sources from which Bracton derives the rich materials,
which he has made use of in his work, are partly
Domestic sources.
of domestic and partly of foreign origin. We
shall begin with the first. Bracton styles the English law a
jus non scriptum, consuetudinarium:
" Cum  autem  in fere omnibus regionibus utantur legibus et jure scripto, sola Anglia usa est in suis finibus
jure non scripto et consuetudine" (a).
FThere was in fact but a small portion of the law which
was then handed down in written sources. These
Those in writing.
hon witg latter included only some few statutes (b), Glanville's treatise, and some private compilations of old laws,
partly obsolete and partly spurious, which went under the
names of former kings (Edward the Confessor, William the
Conqueror, etc.) (c). The degree of culture, however, at
which the English law had arrived, was such that a new and
copious source  of  development had  been  opened.   The
(a) Bracton, f. 1.
(b) Except the different charters of liberties (Magna Charta etc.) and their
confirmations, these were only, strictly speaking, the Statute of Merton and the
so-called statutum de anno bissextile, the former 20 Henry III., and the latter 40
(according to some 21) Henry III.
(c) Upon the laws of Edward the Confessor and those called William the
Conqueror's and Henry the First's, v. Phillips, Engl. Rechtsgeschichte I. 184222. It is worthy of remark that Bracton seems to refer to the first of these
in a passage, f. 124 b.: Et secundum legis Eduardi regis, omnis qui est aetatis
duodecim annorum facere debet sacramentum in visu franci plegio etc. [See
also Thorpe's Ancient Laws, preface and pp. 190, 191, 215.-Tr.]
(40)




CHAP. III.]  SOURCES, ETC.-THOSE OF ENGLISH ORIGIN.    41
knowledge of the law, at least in its details, instead of remaining the common property of the nation, was gradually
becoming a monopoly of those engaged in its practice. The
law was now best ascertained from the knowledge residing
in the breast of the judges.  Their judicial deJudicial cases.
cisions were now the best evidence of the validity
of legal principles, became legal rules for future observance,
and were the means of developing and improving the law.
Attention had therefore already been turned to the transcription of judicial records, and care bestowed upon their compilation and preservation in rolls. Bracton, however, is the
first writer who acknowledges the authority of such prajudicata, and lays down the decisions of the courts as leading
authorities for the common law (d). As he himself avows, a
great part of his matter was furnished by the Bracton'suse
"vetera judicia justorum, facta ipsorum, consilia et  thereof
responsa," and the large number of cases cited in his work
shows how much he owes to this source.
When Bracton treats of rules of law which have always
been recognized by ancient custom, it is of course evident
that he has no need of quoting such authorities. Accordingly, we meet with citations of cases as precedents almost
only when he is called upon to decide doubtful questions, or
where he would demonstrate the origin and existence of
principles of a special character, or of recent date. In this
connection fit is important to remember that the judicial decisions cited by Bracton are all, with one excep- Dates of cases in
tion, of the reign of Henry III. (e), and belong Bracton.
to a period comparatively recent, the oldest thereof being of
the year 1219, or 3 Henry IIIJ It would be, however, too
hazardous to conclude that the value of such decisions as
legal authorities was not recognized in practice at an earlier
period.
(d) Bracton, 1 b. Si autem aliqua nova et inconsueta emerserint, et quae
prius usitata non fuerint in regno, si tamen similia evenerint,persimilejudicentur,
cum bona sit occasio a similibus procedere ad similia.
(e) This exception is a case temp. John, cited by Bracton, f. 364:-habetis
de itinere M. de Pateshull in Corn. Leycestrie de tempore regis Johannis.




42   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
In quoting cases Bracton gives the year, term, and court.
His manner of If the  case  occurred  in  eyre, the  county, the
quoting and re- judges and perhaps the sort of action are
ferring to them. named (f). Usually he gives mere citations, but
we often find added a more or less complete account of important matters of fact and law, which he generally takes
from the rolls. The views of the judges are also often given,
(f) E.g.:-in assisis captis coram rege per Wilh. de Ralegh apud Cauteshull
in comit. Norfolk anno regis H. 23, assisa novae disseisinse, si Robertus de
Rikinghale.-It is not clear to me what years are meant by primis placitis
post guerram communem, f. 77; anno secundopost guerram, f. 376 b.; and inter
prima placitapost guerram, f. 376 b.  [If the true reading on fol. 77 is guerram
communem, the phrase must have the same application as guerram generalem on
fol. 240 b. The latter phrase can have no other application than to the civil
war between John and the Barons, which broke out in the autumn of 1215,
was raging at the death of John (19 October, 1216), and was terminated 11
September, 1217 (1 H. III.). This appears affirmatively and negatively from
a record of 11 April, 1260: Rex etc. Deus......cum olim guerra generalis esset
in Anglia, nobis adhuc in minore aetate constilutis, imponi voluit regni diadema, et ex
insperato quos inimicitia capitalis ab invicem-separaverat ad unitatem et pacem
nostram dono suae gratise revocavit, quam  otoo tempore nostro sua gratia usque ad
hsec temporafelicibus auspiciis continuavit (Claus. Franc. 44 H. 3 in Prynne on 4
Inst. 154, 155). This may possibly have been called guerra generalis to distinguish it from the contest which had been terminated, or suspended, in June,
1215, by the pacification, or truce, of Runningmede, when Magna Charta was
first granted. That contest was called a war in the convention between John
and the Barons: omnes ex utraque parte recuperabunt castra terras et villas
quas habuerunt in initio guerre, ortae inter dominum regem et barones.  At
this period, according to Wendover, the pleas of the Exchequer, and of the
sheriffs' courts throughout England, ceased because there was no one who
would account to the king, or in any wise obey him: cessaverunt placita scaccarii et Vicecomitum per Angliam quia nullus inventus est qui regi censum vel
in aliquo obediret. This was then, and always afterwards, in England, the
criterion of the definition of a time of internal war. The passages of Bracton
with which to collate those here cited by the author, are on folios 16 b., 237 b.,
238, 240, 302, 303 b., 313, 314 b., 373 b., 378, 390. Numerous entries in the
printed close rolls of the latter part of the reign of John and early part of that
of Henry III. show the character of the civil war at both of the periods above
mentioned.
The foregoing remarks apply generally whether the phrase on fol. 77 is to
be understood as guerram communem or simply guerram.  Many passages of
the context, proximate and immediate, might perhaps induce a doubt whether
a slight corruption of the text has not misapplied the qualification communem
to guerram instead of hsereditatem. The subject discussed is the communis
hsereditas of parceners or female coheirs.-Tr.]




CHAP. III.]  SOURCES, ETC. —THOSE OF ENGLISH  ORIGIN.                    43
accompanied by a penetrating criticism and perhaps a censuring refutation (g). Bracton attributes particular importance to the opinions and decisions of certain judges, of whose
ability we are also otherwise informedJ These were Martin
de  Pateshull, William   de  Ralegh, Stephen  de
Segrave, the Abbot of Reading and the Bishop
of Durham, who were much distinguished either as justices
itinerant or as members of the court at Westminster (h).
He appears to have cherished a special predilection for Martin de Pateshull, and it would seem from certain expressions
that Bracton had personal relations with him (i). That no
less authority was attributed to the responsa and consultationes of these judges than to their regular judicial decisions
is to be inferred from repeated quotations (j).
(g) Bracton, 50. 54 b. 82. 177. 199. 381 b. etc. Differences of opinion: 35 b.:
Contrarium habetur de quadam abbatissa......coram W. de Ralegh, quod quidem
S. de Segrave non approbavit; 130 b.: in quo casu diverse fuerunt opiniones,
et secundum M. de Pateshull...... Steph. de Segrave vero sentit contrarium.
438. Censure f. 29: contrarium factum fuit et male de errore curise; 49 b.: male
actum est in contrarium; 277 b.: sed contrarium  coram  Rege et consilio suo
apud Westm. anno regis H. 13.
(h) Martin de Pateshull was capitalis justiciarius de banco; William de Ralegh justiciarius domini regis; Stephen de Segrave, according to some expressions of Bracton, seems to have written upon tenant per legem Angliae (tenant
by courtesy). Bracton, 438: de consuetudine illa male intellecta et usitata.
[Upon the above-named judges cf. Foss's Judges of England, II. 438, 448,
468.-Tr. ]
(i) He calls him several times dominus Martinus, as well as merely Martinus.
Bracton, 205 b. 207 b.: Melius secundum Martinum.  [From  Foss's account
Martin de Pateshull was the most remarkable judge of his day.-Tr.]
(j) Bracton, 302 b.: Et unde P. de Rupe tune Winton. episcopus consuluit
eundem Martinum......qui ei rescripsit etc. F. 307: ad considerationemn episcopi Wigorn. de consilio Martini ex parte regis tale fuit datum responsum.  F.
357: ex responso W. de Ralegh et S. de Segrave facto Richardo Duket, qui
eorum consilium in hoc casu expetiit. These responsa were not addressed to
parties but to judges and persons exercising judicial functions of a subordinate
and occasional character.  [Most of the instances of consultations refer to
cases of prohibition and the issue of writs of consultation, v. Reeves, I. 456.
The writ of consultation on f. 307 did not, however, arise in a case of prohibition, v. note (e) to Chapter XVII. The case on f. 357 was one where the four
knights, appointed to make a view in an essoin, were instructed as to their
powers upon a doubted point.  That the judges should define the powers of
persons exercising under their supervision such occasional judicial functions,
was a matter of course.-Tr.]




44   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
From the great consideration which Glanville's work enUse of Glanville joyed, it is doubtless to be presumed that Bracdiscussed.   ton was acquainted with it.  The question next
arises whether Bracton shows any traces of actually having
used Glanville in composing his own book. (A certain agreement in the prefaces of both works is not decisive,ince it is
clear that both authors have taken the prologue of Justinian's
Institutes as a model (.  The difference between the general character of the two works is, indeed, opposed to the
idea that the one should have materially affected or influenced the other. I can in fact point out only two passages
(and those even without entire certainty) from which an immediate use of Glanville can be inferred; one, Lib. II. c. 26,
which discusses testaments, seems to be taken from Glanville, VII. c. 5, and the other, Lib. II. c. 27, de emptionibus
from Glanville, X. c. 14.
The statute of Merton, as I have already remarked, is
expressly cited by Bracton in two passages (1).
ADDITIONAL NOTE TO CHAPTER III.
Bracton's references to recorded cases and his insertion of forms of
writs are so numerous and so important that a detailed statement of
them seems requisite.
The number of forms of writs, original and judicial, which Bracton
gives, is 378.  Besides these, there are suggestions of
Writs in Bracton.
alternative forms of writs, which are not accompanied
with the formal words to be substituted in the forms of writs to be
altered, and which have not been included in the above aggregate.
(k) Glanville: Regiam potestatem non solum armis contra rebelles et gentes
sibi regnoque insurgentes oportet esse decoratam sed et legibus ad subditos et
populos pacifice regendos decet esse ornatam, ut utraque tempora pacis et belli
etc.; Bracton: In rege, qui recte regit necessaria sunt duo hec, arma videlicet
et leges, quibus utrumque tempus bellorum et pacis recte possit gubernari.
(1) Bracton, 227, 416.




CHAP. III.]  SOURCES, ETC.-THOSE OF ENGLISH ORIGIN.    45
I have counted 484 cases in Bracton, making an average of about
one to a folio.  How often he cites a case more than Detailed stat
once cannot be determined, for the citations are often   ment ofcasesin
too vague to enable the case to be identified without the   Bracton.
roll, e.g. f. 260 b.: ut de itinere W. de Ralegh in corhitatu Warr.
assisa mortis antecessoris, circa medium rotuli. These cases are probably all with one exception of the reign of Henry III.  That exception is the case on folio 364, de tempore regis Johannis, occurring before Pateshull in itinere in Leicestershire.  Some other cases tried
before Pateshull, which have no precise dates, may also have been of
the reign of John.  There are 353 cases dated by the years of the
reign of Henry III.; 9 cases dated "post guerram," and one case
"post guerram  communem."  There are 121 cases with no precise
date, but in most instances the roll (generally -tia- of an iter) can, if
in existence, be identified from the reference.
The cases dated by the regnal years of Henry III. are as follows:
2 H. III., 3 cases; f. 239 (two), 308 b.
2 incipiente 3 H. III., 1 case; f. 409 b.
3 It. III., 25 cases; f. 23, 27 b., 50, 65, 113, 161, 200 b., 219, 277,
277 b., 280, 297, 298, 301 b., 303 b., 320 (two), 322, 330, 372, 375 b.,
394 b., 421, 433, 442 b.
3 incipiente 4 H. III., 11 cases; f. 199 b., 243 b., 248 b., 258 b., 310,
316, 336, 413 b., 424 b., 437, 440 b.
4 H. III., 25 cases; f. 53, 93, 151 b., 199 b., 200, 200 b., 241 b.,
272, 298, 305 b., 312, 319, 367, 375, 377 b., 387, 393 b., 414, 430 b.
(two), 433 (two), 433 b., 436 b., 437 b.
4 incipiente 5 H. III., 4 cases; f. 65 b., 146, 387, 432 b.
5 H. III., 26 cases; f. 13, 54 b., 69, 83 b., 124 b., 128, 141, 153,
166, 179 b., 200 b., 246 b., 266 b., 269 b., 275 b., 286, 288 (two), 307 b.,
332 b., 340 b., 375 b., 390, 430 b. (two), 433.
5 incipiente 6 H. III., 2 cases; f. 273, 311.
6 H. III., 12 cases; f. 53 b., 83, 245, 245 b., 246 b., 259 b., 350,
350 b., 351, 364, 407, 407 b.
6 incipiente 7 H. III., 3 cases; f. 143, 346, 420.
7 H. III., 19 cases; f. 55 b., 82, 93, 97 b., 141 b., 244, 306 b.,
320 b., 349, 349 b., 351 b., 375 b., 376, 392 b., 407, 432 b., 433 b.,
437, 437 b.
7 incipiente 8 H. III., 4 cases; 230 b., 311,349, 350 b.
8 H. III., 13 cases; f. 29, 75, 246, 298, 306 b., 326 b., 387, 390 b.,
392 b., 398 (two), 407, 414.
8 incipiente 9 H. III., 5 cases; f. 54 b., 212, 246, 298, 304.
4




46  BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
9 H. III., 20 cases; f. 53 b. (two), 83, 84., 92, 142 b., 244 (two),
246, 246 b., 304 b., 316, 332 b., 364,'374, 390, 407, 434 (two), 436.
9 incipiente 10 H. III., 20 cases, f. 54 b., 84 b., 116 b., 137 b., 146,
146 b., 160 b., 246 b., 301 b., 304, 312, 344, 346, 355, 388 b., 423 b.
(two), 430, 433 b., 440.
10 H. III., 25 cases; f. 54 b., 142 b., 212 b., 238 b. (two), 239, 246,
246 b., 260 b., 271 b., 275, 277 (two), 296 b., 304 b. (two), 306, 310,
340 b., 381, 408, 414, 418, 430 b., 438.
11 H. III., 3 cases; f. 239, 417, 421.
11 incipiente 12 H. III., 3 cases; f. 280 b., 418 b. (two).
12 H. III., 21 cases; f. 92 b., 148, 200, 205 b. (two), 226, 260, 261,
269 b., 274, 275 (two), 277, 285 b., 286, 288, 297, 371, 398, 413, 418,
433 b.
13 H. III., 8 cases; f. 27 b., 177, 200 (two), 225 b., 305 b., 348 b.,
430 b.
13 incipiente 14 H. III., 2 cases; f. 315, 388 b.
14 H. III., 20 cases; f. 93, 226 b., 243 b., 297 b., 301, 319, 320,
339 b., 346 b., 350, 355 b., 356 b., 369 b., 374, 375, 391, 398, 415,
418, 437.
14 incipiente 15 H. III., 5 cases; f. 250, 297 b., 312, 379 b., 407 b.
15 H. III., 19 cases; f. 15, 29, 93, 130, 230 b., 286 b., 302 (two),
303, 316 b., 351 b., 384 b., 391 b., 407, 407 b. (two), 421,.423, 430,
436.
15 incipiente 16 H. III., 5 cases; f. 22, 343, 346, 359 b., 422 b.
16 H. III., 11 cases; f. 50 b., 341, 342 b. (two), 346, 367, 382,
392 b. (two), 407 b., 408.
16 incipiente 17 H1. III., 4 cases; f. 50, 387, 422 b., 433.
17 H. III., 5 cases; f. 29, 87 b., 260, 298, 305 b.
18 H. III., I case; f. 230 b.
19 H. III., 2 cases; f. 16 b., 433 b.
20 H. III., 2 cases; f. 195, 317.
21 H. III., 5 cases; f. 31 b., 195, 272, 292 b., 298.
22 11. III., 1 case; f. 54 b.
23 H. III., 7 cases; f. 169 b., 195 (three), 200 (two), 368.
24 H. III., 2 cases; f. 293 b., 373.
30 H. III., 5 cases; f. 413, 414, 414 b., 423, 436.
31 H. III., 1 case; f. 414.
32 H. III., 1 case;f. 234 b.
32 incipiente 33 H. III., 1 case; f. 241.
38 H. III., 1 case; f. 339 b.
46 H. III., 1 case; f. 159.




CHAP. III.]  SOURCES, ETC.-THOSE OF ENGLISH ORIGIN.    47
The cases dated "post guerram" are as follows:
Itinere......post guerram de loquelis quae remanserunt ad judicium,
1 case; f. 390.
Inter prima placita post guerram, 1 case; f. 376 b. If the reading
post guerram  communem be corrupt, there should be here added the
case on f. 77 in rotulo de primis placitis post guerram communem.
2 H. III. post guerram, 5 cases; f. 313, 314 b., 376 b., 378 b., 380.
Anno secundo post guerram, 1 case; f. 378. In secundo rotulo post
guerram, 1 case; f. 302.
The 121 other cases are to be found on f. 16 b, 20, 23, 26, 27,
28, 29, 35 b., 45, 49 b., 50 (three), 56 b., 65, 88 b., 95 b., 114, 125 b.,
128, 130 b., 137, 142 b., 144 b., 146 b., 167, 169, 170, 170 b., 188,
199 (three), 199 b. (three), 200 b., 205 b. (two), 212 (two), 226, 226 b.,
239, 244 b. (two), 246, 247 b., 260 b., 266 b., 270b., 271 (two), 271 b.,
272 (three), 272 b., 273 b. (two), 274 (three), 275, 276 b. (two), 277,
277 b. (two), 278 (three), 280, 280 b. (two), 285, 285 b. (two), 286,
290 b., 296, 297 b., 304, 309 (two), 311, 312 (two), 319, 320, 320 b.,
330 b., 340 b., 343, 350 (three), 350 b. (three), 357, 370 b., 377 b., 381
(two), 381 b., 383, 388, 390, 390 b., 393 b., 398, 417 b., 418, 420,
420 b., 421 b., 422 b. (two), 424, 426, 426 b., 427 b., 430 b., 435 b.,
438.
The great mass of these cases without precise date were tried before
either Martin de Pateshull or William de Ralegh, or both, with or
without associates.  The former died in 1229, and the latter appears
to have been off the bench after 1235, 19 Henry III.; see Foss, II.
440, 449.
To these should be added Bracton's references on f. 93 b., 130 b.,
141, 194 b., 292, 306 b., 307, 309, 310 b., 422 b., most of which are undoubted citations of cases. On f. 320 b. there is evidently an omitted
case.
Judges' opinions are cited on f. 130 b., 183, 205 b., 207 b., 330, 374,
438.-Translator.




CHAPTER IV.
FOREIGN SOURCES AND AUTHORITIES-ROMAN LAW.
THE elements of law of foreign origin, which are found in
Bracton, are derived from  the Roman and Canon
Foreign sources.
laws. The former, however, furnishes the greater
and most important part. I reserve for the Second Part of
this treatise the detailed investigation of BracRoman law.
ton's Roman matter. I will at present only speak
of the manner and the extent of the use of the Roman law
and of its general importance in Bracton's work.
Traces of an acquaintance with the Roman law are indeed
Roman law in seen in Glanville, but an actual use of it can
Glanville.   only be demonstrated in his discussion of agreements and contracts in the tenth book (a).  On the other
hand, no small part of Bracton's matter is derived from the
Roman law.  And, while the Roman is treated as a foreign
law by Glanville, and the opposition of the " leges Romance" to
the " consuetudo regni" is often put forward, the case is far difIn Bracton's ferent with Bracton.  In the latter's work the
work.    Roman law no longer appears as a stranger, nor
as a merely tolerated element of the law, but as one which
in rank and origin is equal to the Common law. Thus, in
Bracton we find a terminology which is either borrowed from
the Roman law  or conceived in its forms.  We meet with
Roman legal maxims which have become proverbial, and
(a) The tenth book of Glanville is entitled: de debitis laicorum, in contradistinction to those matters of debt in which remedies were only to be obtained
in the courts Christian. In it are treated causa mutui cum quis credit alii
aliquid quod consistit in numero, pondere et mensura; causa depositi; causa
commodati ut si rem meam tibi gratis commodem ad usum; causa emptionis, and
locati conducti. There is also much borrowed from the Roman law in regard to
plegiorum datio. [Cf. Reeves, I. 159, note (u); Cortelyou v. Lansing, 2 Caines's
Cases, 204, 212.-Tr.]
(48)




CHAP. IV.]  FOREIGN SOURCES, ETC.-ROMAN LAW.               49
seem to be naturalized in England,as for instance: pater est
quem  nuptihe demonstrant; melior est conditio possidentis;
scienti et volenti non fit injuria; expressa nocent, non expressa non nocent; cessante causa, cessat effectus; modus et
conventio vincunt legem, etc.  More than this, in many
branches of the law we find legal principles and notions
which are derived or borrowed from the Roman law; here
in slight traces, there in the full force of a transplantation of
the whole Institutes from  the Corpus Juris to the soil of
England; sometimes standing isolated in sharp relief beside
the domestic law, sometimes at the very moment of amalgamation with it, transforming and completing it.
This influence of the Roman law is equally seen in Bracton's system. As has been before observed, the in Bracton's sysfirst part of his system  is planned after the tri-    ten.
partite division of Justinian's Institutes. This reproduction
of the system of the Institutes goes also into details; not indeed so far as Biener thinks (b), who, at the expense of our
author's originality, asserts that the greatest part of the Institutes is worked into Bracton's book. It is in fact no great
part of them at all, for the imitation does not exceed the following limits: Bracton's first book corresponds to the Institutes I. Tit. 1-4, 8, 9, and 12; chapters 1-4 of his second book
correspond to the first two titles of the second book of the
Institutes; and chapters 1-4 of the first tract of his third
book follow in general the course of the Institutes III. Tit.
13-15, 18, 19, 29 and IV. Tit. 6. In the Second Part, this
will appear more fully in detail.  Moreover, Bracton can claim
the order and arrangement of his matter as original.  In this respect he is indeed superior to his contemporary Civilian brethren,
who in their commentaries upon the law followed the written order
of the Roman authorities without as yet having arrived at any original systematic treatment of the law of their own (1).
Bracton has taken the Roman law partly from the original
(b) Inq. Pr. 221.
(1) The translator has italicised this remark, which from its importance
deserves special attention.-Tr.




50    BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
authorities, and partly has used secondary treatises. His acHis use of the quaintance with the Corpus Juris and his actual
Corpus Juris.  use of it, are proved by a series of quotations expressly made therefrom.   These are sometimes mere citations,
and sometimes embrace the texts themselves, and are of course
occasionally much disfigured by clerical errors. The Novels
are not quoted, and probably were not used. The Institutes
are expressly mentioned in one passage only, where they are
Listofhisexpress referred  to as a whole (c).  On  the  other hand,
quotations from I have discovered twelve express quotations from
the CorpusJuris. the Digest and ten  from  the Code, the particulars of which are given in the note below (d). The method
(c) Bracton, 10.: ut in Institutis..... plenius inveniripoterit.
(d) I. Quotations from the Digest. (The quotations from  the Corpus Juris
are given as they are found in Bracton.)
1. Bracton, f. 12 b. lex F. de donationibus, post contractum crimen, and f.
30 b. F. de donation. L. post contractum = L. 15. D. 39. 5.
2. f. 113. ff. ad legem Juliani (sic) de vi publica, lege si de vi = L. 5. ~ 1.
D. 48. 6.
3. f. 114. F. quod metus causa L. similiter si coactus (evidently instead of L.
si mulier   si coactus) =  L. 21. ~ 1. D. 4. 2.
4. ibid. C. (must mean F.) de tribut. actione L. quod in heredem i eligereI. 9. ~ 1. D. 14. 4.
5. ibid. F. quorum legatorum L. prima - L. 1. ~ 4. D. 43. 3.
6. ibid. F. locari (instead of locati) L. si merces i culpae nomine = L. 25. ~ 4.
D. 19. 2.
7. ibid. F. de act. et oblig. ss. si servum (instead of: qui servum) = L. 34. pr.
D. 44. 7.
8. 114 b. F. de pullicianis (sic!) et vectigalibus L. interdum ~ poenae = L. 16.
] 13. D. 39. 4.
9. f. 128 b. F. ad legem Jul. de sicariis et veneficiis ubi dicitur, quod transfuges ubicunque inventi etc. = L. 3. 1 6. D. 48. 8.
10. f. 129. F. de requirend. reis L. ultima = L. 5. D. 48. 17.
11. f. 152. F. de poena (poenis) L. pregnantis = L. 3. D. 48. 19.
12. f. 410 b. ff. ad legem Julianarm (sic!) de adulteriis, lege denunciasse C.
qusere (must mean: ~ quaeritur) = L. 17. ~ 6. D. 48. 5.
I am not able to find the quotation on f. 114: F. de privatis delictis L. non
utique.
II. Quotations from the Code:
1. f. 16 b. C. de pactis, in bonse fidei contr. = L. 13. C. 2. 3.
2. f. 29 b. C. de donat. ante nuptias L. cum milite (instead of: cum multse) 
L. 20. C. 5. 3.
3. f. 106 b. C. ad legem Vel (instead of: Jul.) de repet. L. omnis = L 3. C.
9. 27.
4. ibid. C. ss (i.e. eod.) L. ultima =L. 6. C. 9. 27.




CHAP. IV.]   FOREIGN  SOURCES, ETC.-ROMAN  LAW.                           51
of citation  presents nothing  peculiar.   Much greater, however, is the number of passages of the Roman law, which are
incorporated  into  the text itself, and into  the tissue of the
author's  commentary  without any  statement of  their  source.
These include not only particular leges, but also whole connected fragments of the Corpus Juris reproduced in an order
but slightly modified (e).
But the original authorities of the Roman law  themselves
have been  less used  by Bracton  than  a secondary treatise,
which in his time enjoyed a great reputation.   This was the
well-known Summa of Azo to the Code and to the
His use of Azo.
institutes, the wide dissemination  of which  beyond the limits of Italy is thus proved by its use in England.
This work  of the renowned Glossator (f) seems to have ex5. f. 114. C. de heredibus (must mean: de hereditatis petitione) L. cogi possessorem = L. 11. C. 3. 31.
6. f. 114 b. C. de injuriis L. ult. =L. 11. C. 9. 35.
7. f. 128 b. C. de iis qui latrones et malef. occultant L. prima - L. 1. C. 9. 39.
8. f. 129. C. de requir. reis L. quicunque =_ L. 2. C. 9. 40.
9. f. 183 b. C. de edendo L. qui accusari = L. 4. C. 2. 1.
10. ibid. C. de rei vindicatione L. penultima = L. 27. C. 3. 32., as L. ultima:
res alienas possidens etc., must be meant. [D. de adq. poss. 41. 2. is referred
to generally on f. 16, -ut dicetur plenius in titulo de adquirenda possessione.- Tr.]
(e) Thus we find on f. 43 b. a great part of L. 1. ~ 2-15 D. de adquir. poss.
41. 2.; f. 99 b. much taken from Inst. 3. 13 sq.; f. 162. 162 b. L. 3. ~ 2-11 D.
de vi 43. 16.; f. 233. L. 1 1 2 sq. D. de rivis 43, 21, etc.
(f) Upon Azo: v. Savigny, Gesch., V. 1-44. The Summae of the Code and
of the Institutes are intended by Azo to be one work. I have used and cited in
this treatise the following edition: Lugduni, apud Joan. et Francisc. Frellseos,
1540. ["Azo ou Azolinus, ne a Bologne, ou il mourut en 1230.  Disciple de
Joannes Bassianus, il acquit une grande reputation, bien qu'il y ait de l'exageration de la part de ses biographes, qui out dit qu'il avait dix mille auditeurs a son cours et qu'il le donnait sur la place publique...... Les ecrits d'Azo
jouirent d'une reputation qui eclipsa celle de tous ses devanciers, et les tribunaux
lui accorderent un tel credit que pour obtenir une place de juge, il fallait posseder la somme d'Azo. De la ce proverbe: Chi non ha Azzo-non vada a Palazzo.
Ses principaux ouvrages sont ses gloses sur les cinq parties du Corpus Juris
Civilis, ses Lecture et son Apparatus in Codicem, ses Brocarda, ses Qusestiones, et
ce qui a valu le plus de celebrit6, sa Summa du Code et des Institutes, dont il a
et0 imprime plus de trente editions." Eschbach, Introduction Generale a l'etude
du Droit, p. 264. Upon the Glossators, cf. Hallam, Literature, I. 62; Mackeldey's Civil Law englished by Kaufmann, I. 66 sq.; Lindley's Introduction to
Jurisprudence, Appendix, p. viii.-Tr.]




52    BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
erted  an  important influence upon  the design, if not upon
the origin, of Bracton's work, and to have served him as a
model.   Like Azo, Bracton calls the dogmatic exposition of
the law of his nation a summa ("in unam  summarm redigendo") (g).  His introduction  discusses  and  explains the
design, purpose, and utility of his work, and the reader may
see from the extracts in the note how much they agree with
those of Azo (h). There is, however, the most marked contrast between the simple modesty of Bracton's introduction
and the immoderate tone  of the renowned  but pretentious
Italian (i).  This modesty  and  his concurrence in  the  general high  opinion  of the merit of Azo's work, serve to  explain why Bracton has used  it so extensively.  throughout
nearly the whole of Bracton's book, we can distinctly trace
the  scientific  influence  of Azo's views and  doctrines, especially in  the  definitions and  divisions of legal notions and
conceptions, which are generally clothed in Azo's words.
(g) Bracton, f. 1.
(h) Bracton, 1 b. Intentio autem au-    Azo in Inst. prol. f. 239 b. Intentio
toris est......docere et instruere omnes  communis est...... quemadmodum lites
qui edoceri desiderant, qualiter et quo  decidantur, doceantur errantes, puniordine lites decidantur secundum leges  antur contumaces. Item est communis
et consuetudines Anglicanas......ut do-  intentio de jure rescribere, et adeo receantur et corrigantur errantes, puni-  scribendo operam  dare, ut homines
antur contumaces. Item communis in-  mali efficiantur boni, et boni efficiantur
tentio est de jure scribere, ut rudes  meliores tur metu poenarum, turn exefficiantur boni, et boni meliores turn  hortatione praemiorum.
metu poenarum, tur exhortatione praemiorum....... Finis hujus rei est, ut sopiantur    Ad hune finem referuntur omnes conjurgia et vitia propulsentur et ut in  ditores, ut jurgia sintsopita et expulsa
regno  pax  conservetur et justitia.  sint vitia...... Ethice supponitur liber
Ethicae vero supponitur quasi morali  iste, quia tractat de moribus.
scientife, quia tractat de moribus.
(i) Azo in Codic Proem.  Nunc autem......honorabilium sociorum precibus
condescendi......juxta ipsorum  amicabiles supplicationes......summas lucide
tractare studebo...... Suscipiatis ergo......lucidum et favorabile munus, quod a
me diutius postulastis, tenentes, quod nihil obscurum nihil dubitabile, nihilque
contrarium legibus invenietis.
Compare Bracton's address to the reader: postulans ut si quid superfluum
vel perperam positum in hoc opere invenerit, illud corrigat vel emendet, vel
conniventibus oculis pertranseat, cum  omnia habere in memoria et in nullo
peccare divinumn sit potius quam humanum.
Cf. also Savigny, V. 28.




CHAP. IV.]   FOREIGN SOURCES, ETC.-ROMAN LAW.                       53
Bracton has, however, gone still farther in availing himself
of Azo's assistance, farther indeed than is consistent with
our present notions of an  author's dignity.  Particularly
where Bracton follows the course of the Institutes, that is to
say, in his exposition of the law of persons, of the division
and modes of acquiring things, and of the law of actions, he
generally does not lay down the text of the original authority
as a foundation, but gives unaltered Azo's corresponding
commentary in his Summa of the Institutes, merely omitting his citations and making necessary abbreviations and
changes; or, to speak more precisely, he transcribes whole
pages literally (j).
We must not, however, look upon Bracton as an author
who could not rise above the level of a mere plagiarist, an
opinion to which his contemporaries would never have given
their assent (k). That he was equal to his task of giving a
dogmatic exposition of the English law, is shown by the no
small part of his work in which he stands upon his own feet,
and  makes proof of his capacity without assistance from
others. Putting aside personal predilection, the real reason
for Bracton's copying Azo so closely, seems to have been the
general diffusion and high reputation which Azo's workshad obtained in England  as well as elsewhere within  the
thirty years following his death (1). Their superiority to the
earlier text books and works of similar scope may have led
(j) This applies even to the most marked peculiarities, e.g. Azo, 241, remarks: tabellio qui dicitur servus publicus a serviendo derivari potest; so
too Bracton, 4 b. Azo, 246 b., enumerates calodmemones, cacodaemones, et
animse hominum among res incorporlales, which Bracton does also, f. 10. [In
Bracton's day, to copy what was deemed useful, was not considered plagiarism.
Numerous proofs might be adduced to show that there was then no feeling
resembling the Roman or the modern delicacy upon this subject. In Chapter V. the author remarks that where Bracton seems as it were to copy the
Roman law, he does not leave us in any doubt that he is laying it down as
English law and only as such, in some places by interpolating a word or making
a slight addition, in others by an omission or alteration of what does not conform to the Common law. The parallel extracts from Bracton and Azo, which
are given in Chapter XII., enable the reader to see how carefully Bracton
modified Azo, when it was necessary to do so.-Tr.]
(k) Cf. Savigny, Gesch. III. 574.
(l) Savigny, V. 7. 8.-Azo died in 1230.




54   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
in England, as we know it did in Italy (m), to their being to
a certain extent preferred to the original sources for immediate practical use even in the Courts' If Azo's writings
had thus become elevated to a sort of original authority, it
does not seem strange that Bracton should have preferred to
take the Roman law applicable in England (n) in its then
most generally accepted form of Azo's commentary, nor that
he should have incorporated parts of the latter's writings in
his own work.  How generally Azo was known and used in
England, is plainly shown by a passage of Bracton, which
directly  refers the  reader to Azo's writings for further
details (o).
It appears to me improbable that Bracton used any other
Use of other writ- writer upon the Roman law than Azo.  I have
ersdicused.  compared Placentin's (2) Surma of the Institutes
and Code upon the principal points, and have found only
one passage to which any resemblance can be supposed, and
even in that case it is doubtful.  A  remark of Bracton's,
f. 99, is to this effect: est enim obligatio quasi contra ligatio.
This may be connected with Placentin's describing obligatio
as quasi ligatio (ad Inst. 3. 12), for Azo does not use this expression. I have not been able to find any traces of Bracton's
acquaintance with the well-known work of Magister Vacarius,
the Liber ex universo enucleato Jure excerptus (3), as far as I
have examined a manuscript of it.  It seems in Bracton's
time to have become almost superseded by the writings of
the Italian school.
Biener's doubt (in Savigny, IV. 586), whether the exposition (f. 99 sq.) of the law of obligations and particularly that
(m) Upon the use of Azo's writings in the Courts, see Savigny, V. 11.
(n) For evidence of the application of Roman law in England, see the following Chapter.
(o) Bracton, f. 10. ut in Institutis plenius inveniri poterit et in summa Azonis.
(2) Placentin died in 1192, in France, where he had filled the first professorial
chair, which was established in that country for teaching the Civil law. Cf.
Eschbach, Introduction, p. 268; Kaufmann's Mackeldey, I. 70, 66.-Tr.
(3) Upon Vacarius, cf. the able article in the Penny Cyclopaedia by a writer
familiar with what has been written in Germany concerning him; Kaufmann's
Mackeldey, I. 71 sq.-Tr.




CHAP. IV.]  FOREIGN SOURCES, ETC.-ROMAN LAW.          55
of stipulations, is to be regarded as Bracton's own work, is removed by the manifest fact that the Institutes III. tit. 15-18
were immediately used in preparing it. Biener also doubts
the originality of some of the examples mentioned in Bracton, such as, "do tibi codicem, ut des mihi digestum," etc.
This doubt in my opinion is founded upon an underrating of
Bracton's acquaintance with the Roman law. It can hardly
be thought remarkable that a writer, the whole contents of
whose work show such close familiarity with the Corpus
Juris, should have invented such examples in addition to
those which he has borrowed from it.




CHAPTER V.
IMPORTANCE OF THE ROMAN LAW IN BRACTON.
THE frequent use which Bracton has made of the Roman
Opinions concern- law has sometimes subjected him to the reproach
ing the Roman of having favored it at the expense of the domeslaw in Bracton..   ~  T            s   1 *  11 
lainBrcton.  tic law.  In consequence of this alleged Romanizing tendency he has occasionally been refused recognition
as a true and genuine source and authority for English law.
Houard, the French editor of the early English law books,
has in particular endeavored to maintain this and many
other strange propositions in his Traites sur les Coutumes
Anglo-Normandes, and has on this account taken occasion to
exclude Bracton from his collection (a). These attacks upon
Bracton are, however, altogether unfounded, and Reeves and
after him Biener have decisively refuted them. But there
is another erroneous view which is connected with this mistaken estimate of Bracton, namely, that of underrating the
importance of the Roman law in Bracton and for the English
law of his time.  Upon this latter question, there is, indeed,
a diversity of opinions.  Reeves considers the
Reeves's view.
Roman law in Bracton to be merely an external
ornament, and an embellishment of scientific learning (b).
Biener is of opinion that Bracton accords to the
Roman law  no legislative authority, but only
that of a naturalis ratio. Spence, on the other hand, holds
the Roman law in our author's work to be good
Spence's view.
and valid law, incorporated into the common
(a) Cf. Biener, Engl. Geschw. Ger. II. 287 sq., upon Houard. [Cf. Reeves, II.
88 note, 283 note.-Tr.]
(b) Reeves, II. 88: "Upon a second consideration of those places where the
Roman law is stated with most confidence, it will seem to be rather alluded to
for illustration and ornament, than adduced as an authority." This view is
hardly reconcilable with what is said II. 54.
(56)




CHAP. V.]  IMPORTANCE OF THE ROMAN LAW  IN BRACTON.  57
law (c). My own investigations have led me to adopt a view,
which is essentially the same as that of Spence. view here mainThe external historical evidence as well as the           taied.
internal evidence of Bracton's work itself; demonstrate that
no inconsiderable part of the Roman law  must have been
practically applied in England in Bracton's day.  The same
evidence also shows that Bracton has in general (d) given a
place to, and reproduced, only those Roman elements which
he found were in England actually valid law (i.e. such as
were actually received).
We must above all recollect the circumstances under which
Bracton wrote. i, is purpose was of a purely  iscussion of the
practical character, namely, to  lay  down the   Roman law in
English law for English judges merely, and to explain and to teach "qualiter et quo ordine lites decidantur
secundum leges. et consuetudines Anglicanas." His materials were
purely English materials: "facta et casus, qui quotidie emergunt et eveniunt in regno Anglice" (e).  Iis sources and
authorities were equally English, being English judicial decisions, and rules of law which were applied or were to be
applied by English courts.j Recollecting these facts we are
at a loss to explain why Bracton should have mentioned the
Roman law at all, if it was indeed an utterly foreign law, or if
it had obtained no footing in the legal soil of England.  Still
less under such circumstances, can we explain why he should
have made use of the Roman law  to the extent to which
he did.  He could not have done so for the judges, for they
would have had no need of it, nor for students, for they
would get a better idea of it from the Corpus Juris itself, or
from the law schools. Moreover, the manner in which Brac(c) Biener, in Savigny, IV. 585, relies especially upon the following passage
in Bracton's preface: cum autem in fere omnibus regionibus utantur legibus
etjure scripto, sola Anglia usa est in suis finibus jure non scripto et consuetudine. Jus scriptum is here taken to mean the Roman law. Biener subsequently
concedes that much use was made of the Roman law in the highest courts in
England both in Glanville's and in Bracton's time. Cf. Biener Englische
Geschwornengericht, II. 265. Spence, I. 123. 124. 131. 235.
(d) I say in general, for I will not deny that in particular instances Bracton
has himself made additions.
(e) Bracton, 1 b.




58   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
ton discusses and treats the Roman law is decisively in favor
of the view here maintained. There is no difference to be
observed in his commentary, whether he is dwelling upon
English or upon Roman principles.  He passes over both
alike. She reader, instead of getting the impression that
sometimes domestic and sometimes foreign materials are
presented to him, finds before him the picture of an indivisible homogeneous whole, in which the Roman elements
are no longer merely Roman law, but have become integral
parts of the leges et consuetudines Anglicance (f~   This sort of
commentary cannot be reconciled with the supposition that
Roman law has been merely introduced by the writer as an
external addition and for the sake of elegance; it can only
be justified when the Roman law in exactly the way in which
it had been adopted, was fully entitled to its place in his
commentary as naturalized valid law.  Bracton, himself a
judge and a writer scrupulously cautious of giving his assentto doubtful propositions, was not the man to have left his
reader in doubt as to what he considered law, and what mere
ornament.  Iis work bears throughout the stamp  of the
author's fidelity to truth, but a great part of it would belie
such a character, and he would himself be subjected to the
charge of having falsified the law, if it be true that he has
laid down Roman as English law for whole pages without
any reserve.
The confident and matter-of-course way in which Bracton
takes it for granted that there is no necessity for giving the
Roman authorities, or when he does cite them, uses the same
"ad hoc facit" with which he quotes English cases (g), together with the circumstance that in particular instances he
even adduces English precedents (h) for Roman principles,
prove that he was remarkably careful in the application of
(f) The instances given in the Second Part make this evident.
(g) E.g. Bracton, 16, 16 b. 128 b. 129 et al. The Roman law is often called
by Bracton lex merely; e.g. 20 b., convenit lex cum consuetudine Anglicana;
f. 130., quia dicit lex; f. 150 b., furtum est secundum leges contrectatio rei
aliens, etc., where this definition is, without any explanation being added,
presumed as a matter of course to be English law; leges Romanse are only mentioned f. 147 b. where they are placed in opposition to the leges Francorum.
(h) Bracton, 29, for the prohibition of donationes inter conjuges; and f. 113.




CHAP. V.]  IMPORTANCE OF THE ROMAN LAW  IN BRACTON.  59
Roman law.  The Roman law is not of uniform  importance
throughout, as might be expected, if it were merely added
as an external ornament, or if it were only recognized as a
higher authority by the author's caprice. Instead of this, in
a number of subjects we find only single Roman principles
of isolated application, and in many others, exactly where
the Roman law is nearest at hand, we meet with no traces
of its influence. Thus when Bracton mentions some general
principles upon the subject of the patria potestas, he gives
none of the characteristic peculiarities of that Ronan institution.  In discussing usucapio (a thing manifestly borrowed
from  the Roman law) he altogether rejects the Digest with
its rich materials, while just before he makes the most extended use of it for the doctrine of possession. Concerning
testaments we find hardly anything said reminding us of the
Roman law, and there are but scant traces of it in what is
laid down concerning emptio, locatio, etc. Such instances
as these cannot certainly be attributed to mere accident (i).
So far from  going unnecessarily into the Roman law, Bracton avoids doing so throughout, because it was his wish and
his duty to reproduce only such Roman law as was of practical validity in England, and because all else did not belong to an exposition of the leges et consuetudines Anglite (j).
Bracton, too, where he seems, as it were, to copy the Roman
law, does not leave us in any doubt that he is laying it down
as English law and only as such; in some places by interpolating a word, or making a slight addition, in others by an
omission or alteration of what does not conform to the Common law (k).: Hence the errors or mistakes concerning the
(i) Cf. the Second Part. The number of these examples could be much
augmented.
(j) That they were not much inclined in England to sacrifice the domestic to
the foreign law, is proved by the stubborn opposition to the Roman-Canonical
legitimatio per subsequens matrimonium. The frankness with which Bracton
takes the part of the English custom in the controversy, justifies us in thinking
that he would not in other cases arbitrarily favor the foreign at the expense of
the domestic law.
(k) E.g. Bracton, 4, jus civile quod dici potnit jus consuetudinarium; f. 5, the
modification through villenage of the maxim "partus sequitur ventrem;" f. 6 b,
si damnetur propter aliquam feloniam, instead of, si damnctur in metallum vel




60   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
Roman law which are found in his work, are specially important.  To make Bracton responsible for them  would be
most unjustly accusing him of gross ignorance (1), and we
therefore can only suppose that he has incorporated them
into his work because they were actually current in the legal
views of the day. These errors are hence no small guaranty
for the fidelity to truth of Bracton's exposition of the law,
and besides furnish proof that upon particular points Roman
elements had begun to amalgamate with those of the Common law.
Finally, the force of the foregoing  arguments is much
strengthened by taking into consideration the important inEnglish medieval fluence which Bracton exercised upon the writers
law books fol- on the English law who succeeded him (m). They
lowingBracton. take Bracton as a model without at all rejecting
his Roman law as an arbitrary addition. On the contrary,
they reproduce it entire.  In their opinion, therefore, Bracton
used it and laid it down as valid English law.
Of course we must not imagine that the Roman law had
Force of the Ro- ally legislative authority in England.  The applimanlawinEng- cation and adoption of Roman legal principles
land.    was in England no more connected with a legislative authority of the Corpus Juris than it was in Germany
during the period of reception or adoption. The consequent
reception (if I may use such a term) of the Roman law in
England, which was indeed but of a limited character, was
there  as in  Germany  an  act of the  consuetudinary  law.
lCause    Many causes combined to open the way for the
Causes thereof.       h
practical application  of Roman  law.  Among
opus metalli, in Azo 242 b.; Bracton, 8 b., the subsidiary application of the
Roman law in regard to occupatio-nisi consuetudo se habeat. in contrarium;
the exclusion of the Roman theory of treasure trove - propter fisci (regis)
privilegium. So also f. 9 b. as to islands in flumine publico.-Etc.
(1) Thus, f. 16, he bases the necessity of a traditio to perfect a donatio upon
the maxim, ex nudo pacto non oritur actio; f. 29, although the English donatio
was altogether different from the Roman, he applies the Roman prohibition of
donationes inter conjuges to the former; although dos in the English law was
altogether different from the Roman institution of that, name, he divides it into
dos adventitia and dos profectitia; he calls the forisfamiliation of children,
emancipatio.
(m) Upon these writers, see Chapter VII.




CHAP. V.]  IMPORTANCE OF THE ROMAN LAW  IN  BRACTON.  61
these were the impulse given by the universities and the
Oxford School of Civil Law (n), the recognition of the Roman
law in the clerical courts whose jurisdiction extended over a
class of civil matters (o), and the personal influence of the
higher judges who mostly belonged to the clergy and were
therefore versed in the Roman law  (p). Above all, however,
was the necessity of supplying the defects of the Common
law, which had become manifest from the growth of trade,
the increase of intercourse, and the greater importance of
movable property; for the Common  law  had expended its
best energies in the completion of the legal cpnstitution of
the  feudal system   and  had  showed  no  tendency  towards
creating  an  original commercial law  (q).  To these causes
must also be added the scientific superiority of the foreign
law with its completeness, over the domestic law with its
want of theoretical development (r).  Even  at an  earlier
(n) Cf. Savigny Gesch. d. R. R. IV. 429; Duck, De Usu et Auctoritate Juris
Civilis; 365 sq. 404 sq. [Cf. Spence, I. 109.-Tr.]
(o) The ecclesiastical jurisdiction had a more extended sphere of operation
in England than elsewhere. It not only extended to what were properly causae
spirituales (as matrimonial causes, spiritual offenses), but also to testaments,
to successions ab intestato of movable property, to legitimacy, and even to
agreements or contracts as far as their violation came within ecclesiastical
censure as lesio or transgressio fidei. It is not improbable that the Romanisms, which occur in Glanville's explanation of contracts, found their way into
the Curia Regis from the Courts Christian, as they were called. Cf. Reeves, I.
63-81. Phillips, Eng. Rechtsgeschichte, I. 165; II. 69, 209 and elsewhere.
Stephen, Comment. on the Eng. Laws, IV. 1-18; Duck, De Usu, 599 sq. Henry II.
had vainly contended against the extension of the ecclesiastical jurisdiction in
his Constitutions of Clarendon (1164).
(p) Almost all the chancellors, as well as most of the judges of the higher
courts were clerks; M. de Pateshull, decanus St. Pauli; W. Ralegh, clericus.
Besides the Abbot of Reading and the episcopus Dunelmensis, Bracton mentions
Radulf. episcop. Cistrensis, and the episcop. Carliensis as judges.
(q) See Goldschmidt's Archiv fur das gesammte Handelsrecht, IV. 13 sq. for
an essay upon "The History of Commercial Law in England," in which I have
attempted to show, as far as commercial law is concerned, how much the wants
and necessities of the period assisted the reception of foreign rules of law.
(r) Perhaps here too reference should be made to a certain internal similarity
between the judicial and remedial machinery of the English and that of the
Roman law, to which Biener has called attention in Mittermeyer's krit. Zeitschrift, XIX. 167 sq. But it might be difficult to demonstrate in detail the
operation of this force upon the adoption of Roman principles.
5




62   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
period it is not improbable that the Roman law had been
used as an assistant and complementary authority in the
Curia Regi.  Curia Regis, upon which court it was incumbent
Curia Regis.
to instruct the inferior judges in regard to the
law  in  doubtful and  omitted  cases (s).  A  legal principle
enunciated by that court had authority beyond the particular case in which it was laid down, and became by means of
its actual use, part of the jus non  scriptum, consuetudinarium.  As Roman legal matter obtained reception, although the
written  sources of the Roman  law  were not at all received as
having a legislative authority, Bracton  properly  included  the
former among the leges et consuetudines Angliae (t) (1).
(s) Bracton, 1 b. Si autem talia (similia) nunquam  prius evenerint et obscurum vel difficile sit eorum judicium, tune ponantur judicia in respectum ad
magnam Curiam, ut ibi per consilium Curix terminentur. Cf. note (d), Chapter III.
(t) The passage quoted in note (c) above, upon which Biener lays so much
stress, does not therefore conflict at all with our view. Moreover, Bracton
himself says just after: habent enim Anglici plurima ex consuetudinc, quse
non habent ex lege, and thereby somewhat restricts his previous remark.
(1) In connection with the subject of this chapter, compare the author's
remarks in the beginning of Chapter XII.  Bracton seems to have been of
opinion that the Roman jurisprudence, as that of all Christendom, was in force
in England, as a jus naturale or jus gentium, except where supplied or displaced by general or local English usages or by English Constitutions (statutes).-Tr.




CHAPTER VI.
CANON LAW.
THE use of the Canon law in Bracton is far Canon law in
more restricted than that of the Roman law.    Bracton.
The Decretum is cited on f. 114 b.:
"et illustres personse injuriarum  per pro- Quotations from
curatores agere possunt ut III. Q. IX. in  the Decretum.
fine;"
this is evidently the dictum Gratiani in c. 18. Caus. III. qu. 9.
The sigla, on f. 183 b., V. Q. V. C. I. must also be a corrupted quotation of the Decretum, although I have not been
able to find the exact passage (a).
On f. 63 the following is quoted verbatim from  From the Decrethe Decretals, c. 2. X. qui filii. 4. 17:                   tals.
"et ad  hoc facit decretale, cujus verba hsec sunt:
inter J. virum  et V. mulierem," etc.
Immediately before this passage is an extract fiom  c. 3. X.
de cland. desp. 4. 3.; whether it is made from  the compilation of Gregory IX. or some one older, cannot be decided.
Besides these authorities Bracton mentions in several places
the provision of the Lateran Council of 1179 (temp. Alexander III.) concerning filling vacant churches while the right
of patronage was in dispute (b).  that the Canon law was
not, indeed, without influence upon the English Influence of the
law, can be seen from the many traces we find of it  canon law upon
in Bracton. The exposition of the right of patron-  the English.
(a) The citation is made by the side of: L. 4. Cod. 2. 1. and L. 28. Cod. 3. 32.
(b) Bracton, 241. 247. 334; "Constitutio Lateranensis de.ecclesiis vacantibus;" cf. c. 3. and 22 X. de jur. patron. 3. 38. It is here worthy of remark
(63)




64    BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
age (advocatio) and of the assise connected with it (assisa
ultimwc prcesentationis), reproduces the provisions of different
decretals (c). The Criminal law also contains many things
taken from the Canon law, as for instance in the proceeding
per famam  patrihe (d), and in the law  of homicide (e). In procedure the influence of the Canon law is unmistakable in the
wager of law, in proof by charters, in the proof of charters
by witnesses (f), in the challenges of the jurata (y), in the
exceptio  spoliationis (h), and in the prcesumptio ex semiplena
probatione mentioned in one passage (i). In the law of inheritance the computation of the degrees of kindred, and the
recognition of the right of representation are to be referred
to the influence of the Canon law (j).
But the influence of the Canon law, at least before Bracton's time, was in general less important than we might be
led to expect after the advantages gained by the Church in
Ienry the Second's reign and that king's abortive attempt
at emancipation, followed by John's complete submission to
Innocent III.   The papal supremacy seems, indeed, to have
Clerical jurisdic- been used more for the extension of the clerical
tioninEngland. jurisdiction, and  for  arbitrary  encroachments
that Bracton speaks only of the term of six months and not of that of four.
Must it therefore be inferred that the distinction between lay and clerical patronage which was usual elsewhere did not obtain in England?
(c) Bracton, 238-252.  Most of the Decretals in the title de jur. patron. (c. 5.
6. 7-11. 19-21. X. 3. 38) are addressed to England, and portions of them can
only be understood by a knowledge of the English matters to which they apply.
Thus the words in c. 21. 1. c. occasione laicwe recognitionis plainly refer to the
assisa (recognitio) ultimae prlesentationis, and not, as Boehmer thinks, to a
species of investiture.
(d) Bracton, 143.
(e) With Bracton, 120 b. 121, cf. c. 6. 7. 10. 12. X. de homic. 5. 12 and 2. X.
5. 14.
(f) Bracton, 410. 243 b. 396 etc.
(g) Br. 185. Eisdem vero modis amoveri possunt a sacramento, quibus etiam
testes amoventur a testimonio.
(h) Bracton, 427 b.-ut si tenens spoliatus fuerit......et non restitutus in toto
vel in parte, non respondebit tenens ante restitutionem, quia nudi contendere
nec inermes nos inimicis opponere debemus; from c. 3. Caus. IV. qu. 2.
(i) Bracton, 302.
(j) Bracton, 67: de gradibus successionis et parentel.e.




CHAP. VI.]                     CANON  LAW.                               65
upon the power of the secular arm, than for a vigorous application of the provisions of the Canon law. Certain it is, that at
that flourishing period of its fortunes, the Church endeavored
in vain to establish certain rules of the Canon law, to which the
legal judgment of the English nation felt a strong instinctive
repugnance (k).  Bracton on his part firmly restricts the papal
power within the limits of its peculiar sphere, and defends
the rights of the secular power against the encroachments of
the Church with a boldness remarkable for that age. He
seeks at great length to determine the respective spheres of
jurisdiction of the clerical and the secular courts, and his
accounts of the relations of the former to the latter are of
especial interest. The excesses of authority upon the part
of the clerical courts were counteracted by writs of prohibition and by threats of punishment, in spite of the literce domini
PapC   (1).  The  opposite  views held  concerning  patronage
and special bastardy especially, gave rise to frequent occasions for the use of such means. On the other
hand the secular power lent its assistance to the Relatiosbetween
the king's courts
Church for the enforcement of its commands. and the coults
Christian.
Thus  a  person  excommunicated  for  being  in
contumacy more than forty days, might be placed in custody
by the king's command upon the requisition of the clerical
judge, in order to compel his obedience to the court Christian (m).  The peaceful co-operation  of the courts of both
(k) This is shown especially in the attempts to introduce into England the
legitimatio per subsequens matrimonium, and to draw causes relating to advowsons before the clerical courts.  The Decretal c. 3. X. de jur. 2. 1 (addressed to the king of England) had no effect. [Upon the dispute concerning
special bastardy, cf. Chapter XVI.-Tr.]
(1) Bracton, 250. 251. 401-411. E.g.: Rex talibus judicibus. Ostensum est
nobis ex parte A., quod cum in curia nostra...... arramavit quandam assisam......versus B...... Idem B. timens, sibi posse opponi notam bastardire....... antequam per nos ordinario loci inquisitio de legitimitate probanda......demandata,
literas dni. Papae ad vos directas impetravit, ut de legitimitate sua cognoscatis,......ut per hoc remaneat hereditas..... contra consuetudinem  regni nostri,......
et approbatam a sede apostolica:...... et cum hoc sit manifeste contra consuetudinem regni......vobis prohibemus ne in causa illa procedatis; 405.
(m) Bracton, 427. 408 b.  The requisition of the Ordinary ran: Excellent.
Dno. suo H. dei gratia, etc......talis N. permissione divina Exon. episc. salutem.......Serenitati regiie presentibus intimamus, quod A......propter ipsius contu



66  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
jurisdictions is shown by the writs of consultation mentioned
by Bracton (n).
maciam...... excommunicationis vinculo innodatus per XL dies in excomm. perseverans eccles. negligat parere censure...... Quia vero regia Majestatis eorum
solertiam  solet reprimere, qui ecclesiasticis proeceptis obedire negligunt......
celsitudinis vestrse brachium invocamus, quod ecclesia minus valet in hac parte,
dignetur regia supplere Majestas.
(n) Bracton, 302. 307. 406.




CHAPTER VII.
BRACTON'S INFLUENCE IN ENGLAND-EDITIONS.
WE shall conclude this First Part by some remarks upon
the importance and value, which have been at- Circulation of
tributed to Bracton and his work in England.  Brton's work.
We have no direct proof of the time when the book itself
first appeared, but its circulation, some twenty years after its
composition, is established by a document of the year 1277,
given by Selden, which relates to the loan of a copy of it (a).
We have, however, the clearest proof of the importance of
Bracton's influence in works of other writers written somewhat later.
\lBracton's treatise stands just upon the boundary between
two different periods in the history of English Its place in Englaw.i Before his time the  chief sources from   lish legal hiswhich the law was derived, were custom  and the   tory.
authority of usage.  Legislation, partially from  the sad internal troubles of those times, had hardly any opportunity
to interfere in the development of the law. Hence a written
exposition of the jus non scriptum was then most opportune.
But after Bracton's day a change took place, and under Edward I. legislation became most active, and soon added to
the law a rich mass of reforms, changes, and essential innovations. As many of the defects and doubts pointed out by
(a) Selden ad Flet. 2 1 2: Universis prsesentes literas inspecturis R. de
Scardeburgh, archidiaconus salut. Noveritis me recepisse et habuisse, ex
causa commodati, librum quem dominus Henricus de Breton (sic!) composuit, a
venerabili patre, domino R. dei gratia Bathon. episc., per manum magistri
Thomae Becke, archidiac. Dorset; quem eidem restituere teneor in festo St.
Johan. Baptistse anno dom. MCCLXXVIII. In cujus rei testimonium prsesentibus sigillum meum appensum. Datum Doverse die Veneris post purificat. Virg.
glorios. anno MCCLXXVII.
(67)




68   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
Bracton are removed by the new statutes, it is probable that
these reforms were greatly furthered by his work, and that
it thus united with the new legal progress and development
in stimulating and increasing the scientific study and treatment of the law. The first start in this new legal development may have been given by Edward the First's plan of
codifying the whole English law, of which we have an historical account (b), while Bracton's labors served as examples
inciting to emulation.  Bracton's work, indeed, very soon
ceased to be entirely equal to the wants of the times; it contained much that had become obsolete, and needed much
that was new. While jurists still prized the copiousness and
detail of his commentary, those characteristics were rather
obstacles to students.  The want of a less extenIts relation to the
subsequentEng- sive commentary and one at the same time inlish medieval eluding the new statute law, seems consequently
law books.
to have led to the composition of the works we
are about to mention. Their more or less direct dependence
upon Bracton is a proof of the esteem in which he was held,
and of his ever having been considered the best and truest
authorityfor the Common law.
The title of the first of these law books, expressly declares
it to be an abridgment of Bracton.  Its author
Thornton.
is Gilbert de Thornton, Chief Justice in the
reign of Edward I. It was composed about the year 1292,
and bears the following title:
" Incipit summa de legibus et consuetudinibus Anglite a magistro Henrico de Bryctona composita tempore
R. Henrici filii Johannis, quam quidem summam dominus Gilbertus de Thornton tune capitalis justiciarius domini regis in Anglia secundum statuta et leges tune
usitatas ad utilitatem posteriorum diligenti studio postmodum abbreviavit sub compendio, anno regni regis
Eduardi filii regis Henrici vicesimo."
(b) Selden ad Flet. 2. } 4. gives the following remark of one of the judges
from a roll of 35 Henry VI.: le quel roy (Eduard I.) fuit appurpose daver
mise tout en certain et en escripture, et commence de ceo faire liver de et par
plus sages hommes del ley deins le realme, ses Juges et autres.




CHAP. VII.]    BRACTON'S INFLUENCE IN ENGLAND, ETC.    69
Thornton's work is not yet printed. Selden, who had examined a manuscript, has given a full account of it (c). From
the words, "secundum  statuta et leges tune usitatas," we
should expect the new statutes to be taken into consideration, but the author contents himself with omitting what is
obsolete in Bracton. The course of Bracton's commentary
is followed in general, particularly the division into persons,
things and actions, but the external distribution is into eight
books, and the law of dower and that of inheritance are postponed to the conclusion.  From  the retention of some of
Bracton's quotations from the Code (d), it may be inferred
that the rest of his civil law matter is respected.
The next work which we shall consider is one which is in
print, and which for that reason alone is of more
Fleta.
importance to us.  It is that knowA under the
following title: ".Fleta, seu Commentarius Juris Anglicani" (e).
Next to Bracton this is the largest of the English medieval
law  books.  Its anonymous author states in his preface
(which imitates that of Glanville) that the purpose of his
work is to give brevi volumine a general view of the law
"ut non sit necesse quarenti librorum capitulorumque
numerositatem  evolvere, cum  brevitas collecta, quod
quverit, offert sine labore."
He has taken Bracton's work as his foundation, or rather
has appropriated it to such an extent that the greatest part
of Fleta is extracted from Bracton, for the most part with
the use of the latter's words, but with the omission of details
which do not answer the epitomizer's purpose. The author
cuts down the developments and amplifications of the original to what is most necessary, and omits the greater number
of the examples, cases, forms etc.  Some passages are, however, transferred from Bracton word for word.  The abbreviation is, nevertheless, so considerable, that even with the
(c) Selden ad Flet. 2. & 4.
(d) L. c. 3. ~ 1. 2., mention is made of the citation of C. ad legem rmilit.
(i.e. Juliam) L. omnes = L. 3. C. 9. 27; of C. de donat. ante nupt. L. cum
multae = L. 20. C. 5. 3.
(e) Concerning Fleta, v. Reeves, II. 279; Biener, Inq. Proz. 222 sq., Engl.
Geschw.-Ger. II. 287.




70   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
author's own additions, his work is not half as large as Bracton's.  The merit of the author of Fleta lies in his own additions.  Putting aside alterations, some of which were necessary and some optional, these additions consist in the insertion
of many provisions of the new statutes in their proper places;
in completely remodelling, and treating with special detail
some subjects which Bracton has only lightly touched upon (f)
(for which Fleta furnishes illustration and commentary);
and finally in adding matter completely new, which is sometimes indeed very loosely connected with an exposition of
the law (g).
Examining Fleta in its relation to the Roman law, we find
no express citations of the text of the Corpus Juris.  Some
of Bracton's quotations are, however, reproduced with general references, such as ad hoc facit lex, lex imperatoria (h).
In one passage, III. 2. ~ 12. the Institutes are referred to:
"secundumn quod Institutis legitur."   The Roman law  passages which the author of Fleta extracts from  Bracton are
almost always repeated word for word, and we meet again,
in almost an unaltered form, the matter of the Institutes and
of Azo's Summa in the chapters de rerum  adquisitionibus,
de accessionibus, de actione debiti (obligationibus), de emptionibus, de locate et conducto, de obligatione oriente ex
quasi contractu, II. 56-60; III. 1-3. etc. I have found additions of Roman law matter in the chapter de dotis constitutione, V. 23, which are not due to Bracton, but to the author's
own knowledge or to  some other source.  The following
Canon law authorities are mentioned: the Decretals c. 2. X.
qui filii 4. 17 and c. 2. X. de servis non ordinandis 1. 18 (i).
(f) Especially so in regard to the procedure in personal actions which Bracton has treated very meagerly.
(g) Fleta II. 2-40, gives a view of the organization and jurisdiction of the
different courts, and II. 71-88, a dissertation upon matters of rural economy
which is most interesting for the history of the manners and customs of the
period.
(h) Flet. I. 38. 1 15. III. 3. ~ 12: quia omnino hoc prohibetur in lege. & 15:
verba autem legis sunt, etc. III. 10. ~ 3.
(i) I. 14. Et ad hoc facit decretale cujus verba sunt haec: inter A. veterem
(must mean virum) et B. etc.; II. 51. 1 5, Inhibitum est enim et in decretalibus
statutum, quod nullus episcopus spurios aut servos, donec a dominis suis fuerint
manumissi, ad sacros ordines promovere prsesumat.




CHAP. VII.]    BRACTON'S INFLUENCE IN ENGLAND, ETC.    71
The system  of Fleta agrees only partially with Bracton's.
The external division of the work is into six books, which
are subdivided into chapters and sections (j).  The first fifteen chapters of the first book treat of the law of persons;
the others discuss criminal actions. The second book is entitled de actionibus personalibus, and includes the heads de
testamentis, de emptionibus and de locato, placed by Bracton under modes of acquisition.  The third book is entitled
de rerum acquisitionibus, and corresponds mainly to Bracton's second. The three last books treat of actions in rem
in almost the same order as Bracton, and also discuss the
law of inheritance in connection with the writ of right.
Selden's researches have placed it beyond doubt that Fleta
was written in the reign of Edward I. (k). There are statutes
and cases mentioned which serve to fix the date of the work
more closely. The statutes of Acton Burnel de mercatoribus
(11 Edward I.), of Westminster the second and of Winchester (both 13 Edward I.), and cases of 14, 17 and 18 Edward I.
(1286, 1289 and 1290) are mentioned (1).  From  these data
Biener thinks that the work was composed shortly after
1290. In one place, however, the submission of Scotland is
referred to:
"II. 13. ~ 1. Est inter cetera quoddam officium quod
dicitur Cancellaria, quod......episcopo debet committi
simul cum  cura majoris sigilli regni, cujus substituti sunt omnes cancellarii in Anglia, Hibernia, Wallia et
Scotiac.
This passage and the fact that the recognition of the English
supremacy by the Scotch took place during the year 1292 (m)
compel me to place the composition of Fleta after 1292.
(j) According to the preface, the work is divided in tres partes principales:
prima de Charta libertatum Anglise et statutis, secunda de personalibus et
tertia de realibus actionibus ordinatur. This division is evidently not that of
the work.
(k) Selden ad Flet. 10 ~ 1. 2. In consequence of a clearly corrupt passage
I. 20. ~ 59 the book had been asserted previously to belong to the reign of
Edward II. and even to that of Edward III.
(1) Fleta I. 24. ~ 3; II. 3.  9. 10. 12; II. 63. ~ 7; II. 64.
(m) Pauli Gesch. von England, IV. 67 sq.




72   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART I.
It is well known that this work is not called Fleta from
the name of the author, but from that of the Fleet prison,
because the preface declares it to be
" tractatus iste, qui Fleta merito appellari poterit, quia
in Fleta dejure Anglorum fuit compositus."
This is usually connected with the fact that Edward I. in 1289
imprisoned several of his judges for official misconduct. It
has been supposed that the author of Fleta was one of these
judges, a conjecture which however seems to me improbable (n).
We come now  to the Norman-French tract of Britton.
The date of this legal treatise is somewhat later
Britton.
than Fleta, being about the year 1297.  It does
not indeed stand demonstrably in as near connection with
Bracton as the previous works.  It however shows the authority which was conceded to him, for it is most highly
probable that it bears his name. According to Selden's conjecture, which is also adopted by Biener, and which is quite
probable, the name Britton is nothing more than one of the
many variations for that of Bracton, while the book itself is
a compendium or modification of the older work, to which the
name of Bracton himself has been given (o).  I have not myself had an opportunity of examining Britton, and can therefore give no opinion upon the manner in which the Roman
law is made use of, nor of course upon the relation of the
(n) Selden ad Flet. 10. & 3. and after him Biener Inq. Pr. 223. The reasons
upon which my doubts are based are as follows. In the preface the king is
praised for his vigorous administration of the laws. The words:
" et quidquid effrenis audet et immoderata prsesumit ambitio suse potentis auctoritatis censura castigat,"
apply very fitly to the punishment of the judges, but could scarcely come from
the mouth of one of the guilty men themselves. The same can be said of the
exhortation addressed in the same tone to judges I. 17. Moreover, the passage in the preface upon which the name of Fleta is based, seems hardly to
come from the author. From the tenor and contents of the preface and its
clear mistake in regard to the division of the work (v. note (j) above), it may
rather be supposed to be the addition of another hand. This can indeed only
be positively settled by a comparison of the manuscripts.
(o) Concerning Britton, v. Selden 1. c. 2. 1 3; Reeves II. 281; Biener Inq.
Pr. 224. 225.




CHAP. VII.]    BRACTON'S INFLUENCE IN ENGLAND, ETC.    73
work to it.  Biener remarks that there is less to be found in
it than in its predecessors.
With the beginning of the fourteenth century the period of
the legal treatises closes. For the time follow- Later estimate of
ing until the conclusion of the middle ages, it is   Bracton.
necessary, in order to determine Bracton's authority and
ascertain his influence upon the development of the common
law, to make researches through the extensive
Year books.
collections of cases known as the year booksan investigation presenting much difficulty and few results.
Some data have been collected by Biener, to which the reader
is referred (p).  Upon the revival of scientific legal inquiry
in England greater attention was, however, paid to Bracton
and the older authorities in general. Thus as early as 1534,
I find Bracton mentioned twice in company with Glanville in
Fitzherbert's New Natura Brevium (q).  Sir William Staunford makes greater use of him in his Pleas of the Crown,
which was written about 1555.  But the use
which Sir Edward Coke has made of Bracton in                oke.
his Institutes and especially in the commentary upon Littleton is remarkable. Coke throughout recognizes Bracton not
only as an original historical source but also as an authority
for existing law, and the rich materials which Bracton affbrds
for investigation are of more importance in his than in any
previous researches.  At this time Bracton's Editions of Bracwork appeared in print.  The first edition was  ton's work.
published in folio in 1569. It was edited anonymously; the
preface is signed T. N. The editor remarks that there had
long been a great desire for the publication of the work, and
that he had compared and used several manuscripts. The
second edition, which was published in quarto in London in
1640, is a reprint of the former, in which no alterations have
been made, and in which the folios have the same enumera(p) Biener, Engl. Geschw.-Ger. II. 294-297. [See Appendix; note to Chapter
VII. I have, as yet, been unable to obtain Biener's work on the English Jury.
In the hope of doing so before the Appendix is printed, I delay the note here
necessary.-Tr.]
(q) The name of Britton is mentioned f. 17, 189 (edition 1652), but the context shows that it is our author who is referred to.




74    BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART I.
tion. This latter edition is that which I have used. I cannot agree with Reeves that Bracton's text is in general incorrectly printed, and consequently  do not consider a new
edition absolutely necessary (1). An historical and explanatory commentary is however desirable.
Since the seventeenth century there has been but one
Modern estimate opinion in England concerning the importance
ofBracton.   and value of Bracton.  Legal historians such as
Reeves  and  Spence, and  commentators  like  Blackstone,
Stephens and others, alike esteem him as the leading authority for the older Common law. They regard Bracton's
work  as the  source  from  which  a large number of general legal truths, which are now existing law, derive their
origin or their first confirmation.  Even at the present day,
after a lapse of six hundred years, judges occasionally go
back to Bracton, and apply his opinions as existing law  (r).
(r) Spence I. 121 sq. [Here also see Appendix; note to Chapter VII.-Tr.]
(1) From the various readings given at the close of the editor's preface, it may
be inferred that all the manuscripts of the work which he had seen contained
the interpolated reference, f. 253 b., to the statute 3 Edward I., A.D. 1275 (see
ante, Chapter I. note (f) ). They may all have been copied by ignorant scribes
after the author's death from some copy which had never undergone his revision. Such a copy may have been made from the manuscript borrowed from
the Bishop of Bath in 1277 (see note (a) above). From the various readings
thus given by the editor, it may also be inferred that he had not seen any
manuscript of Bracton which contained the word "seductionem" in place of
"seditionem," f. 118 b., line 7. Mr. Emlyn, a very accurate and learned antiquarian, states in a note to 1 Hale P. C. 77 that "in most of the manuscripts
of Bracton the word in this place is'seductionem.'"  Hence it may be inferred
that "most of the manuscripts" were not seen by the editor of the printed
work.  Selden in the Dissertatio ad Fletam, II. L  4, mentions the manuscripts
of Bracton as numerous, and as differing from one another in some particulars
not noted in the printed edition, which are not without bibliographical interest.
There thus are doubtless manuscripts of Bracton which his editor never saw.
Whether the text of any of them is purer than that from which the work has
been printed is a question which cannot be answered except in England. Upon
the answer, it may be decided whether a new edition is needed. There are
e#  manuscripts of Bracton mentioned in the Record Commission's Catalogue
of Harleian manuscripts, and four in the Appendix to the Report of the Record
Commission (1837). If the best manuscripts were collated by the editor of the
work now in print, the present edition is quite as good as any new one which
would probably be producible, and perhaps much better. The numerous errors
and obscurities are doubtless not Bracton's, but those of transcribers.-Tr.




CHAP. VII.]    BRACTON'S INFLUENCE IN ENGLAND, ETC.    75
Bracton has ceased to be a stranger in Germany since
writers like Biener, Gneist, and others have included the
English law  and its history within the range of their researches. The position which he holds in rela- His place in the
tion to the Roman law, which is the special  history of the
subject of our attention, must alone make him 
esteemed in Germany.  During the middle ages Bracton
was the first to discuss the Roman law in connection and
amalgamation with the local domestic law (s). A place must
therefore be assigned him in the history of the Roman law.
(s) The Siete Partidas of Alphonso X. were first completed about 1265.








PART SECONTD.
DETAILED INVESTIGATION OF THE ROMAN LAW IN
BRACTON'S WORK.
6              (77)








PART SECOND.
DETAILED INVESTIGATION OF THE ROMAN LAW
IN BRACTON'S WORK.
CHAPTER VIII.
INTRODUCTORY.
HAVING treated generally of Bracton and his relation to the
Roman law, I now enter upon the second part Subject of the
of my task, that of investigating in detail the  SecondPart.
Roman elements and rules of law, which our author has
adopted and digested in his work. We shall thus get a
complete picture of the extent to which the Roman law then
obtained in England, and clearly ascertain what was its influence'upon the English law. With the exception of some
deviations made for the sake of convenience I have entirely
followed the order of Bracton's work (cf. Chapter II.) in this
investigation, and have had sometimes occasion to refer also
to Glanville and Fleta. I shall premise a few General legal
remarks upon the notions of law, right, etc. with   notions.
which Bracton introduces his system. These are to be found
in chapters 4 and 5 of the first book, entitled "de justitia et
jure" and "qualiter dividitur jus," and comprehend the same
subjects as those discussed in the first two titles
of Justinian's Institutes.  We find there the       Justitia.
familiar definition of justice:
"est autem justitia constans et perpetua voluntas
jus suum cuique tribuens,"
(79)




80   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART II.
in connection with Azo's distinction between divine justice,
Jus.          justitia in creatore, and human justice, justitia in
creatura.  The different meanings  of jus, juris-'iquitas.     prudentia, and  cequitas are then  given;  aequitas
being defined as:
"rerum  convenientia, quae in paribus causis paria desiderat jura, et omnia bene cosequiparat" (a).
These are followed by the well-known tria prxcepta jris, and
Jus publicum, by the division  of law  into jus publicum  and jus
juprivatum   privatum  (b).  Jus privatumn  is divided  into jus
naturale, jus gentium  and jus civile (c).  Jus civile,
called  with  special reference  to  England jus
consuetudinarium   or jus  commune, according  to  Bracton  is
Lex.       based upon lex and consuetudo. Lex is explained,
according to L. 1. D. de leg. 1. 3., as:
"commune  preceptum, virorum  prudentum   consulturn......rei publicse sponsio conmunis;"
C      o.     of consuetudo. f  net     he says that it
"quandoque pro lege observatur......et vicem  legis obtinet; longaevi enim temporis usus et consuetudinis
non est vilis auctoritas,"
(from  L. 2. C. quoe sit long. 8. 53) (d).
(a) Bracton, 2 b. 3. Azo in Inst. I. 1. f. 240. [In regard to sequitas cf. also
the passages f. 12 b.; de mequitate tamen per officiorum Justiciariorum tenebitur
donator, etc.; f. 23 b.: equitas tamen sibi locum vendicat in hac pFrte, quod
dominus non sit in damno, etc. Of the exercise of Equitable jurisdiction by a
separate council or tribunal we find no trace in Bracton. This does not, however, prove that in his day the royal council may not have given relief in some
of the cases, in which it afterwards heard complaints and referred the petitioners to the Chancellor for that redress which the ordinary tribunals could
not afford.-Tr.]
(b) Bracton, 3 b. Jus publicum is there quod ad statum reipublicx pertinet;
in Azo, ad statum rei Romane.
(c) Bracton, 3 b. 4. The passage: "jus gentium,.......quod a naturali jure
procedit, eo quod jus naturale omnibus animalibus commune," must be corrupt;
instead of procedit, recedit should be read as in L. 1. ~ 4. D. de jur. 1. 1. So also
in Azo 240 b.-" quod a naturali recedere facile intelligere licet."
(d) Bracton, 2.




CHAPTER IX.
THE LAW OF PERSONS.
IN  chapters 6-11  of his first book  Bracton  treats of
Persons, a subject which  constitutes the first
Law of Persons.
part of his tripartite  system.  We must not,
however, expect a complete commentary upon the law  of
persons, like that in the corresponding titles of the Institutes I. 3-13. Our author, on the contrary, confines himself to general observations upon the relations of personal
status (a).
Bracton begins by giving the Roman summaa
Servi, villains.
divisio personarum,
"quod omnes homines sunt aut liberi aut servi."
Villains (nativi, villani) are without hesitation legally assimilated to the Roman servi.  So too he says of them
"servi aut nascuntur, aut fiunt" (b).
But the rule:
"partus sequitur ventreni,"
which obtained in the Roman law, was in England modified
by marriage.
That rule held good if the issue was born out of marriage,
but did not do so in the opposite case: the child born in
wedlock followed the father, and was bond or free according
as the latter was bond or free, even if the mother was of a
different status.  Here, however, the rule of favorable interpretation, laid down in pr. J. de ing. 1. 4, was re- Potestas docognized (c).-The power of the lord over the              minica.
bondsman, the potestas dominica, is seen in the rule:
(a) Fleta's system is more consistent, the subjects relating to the law of
persons being placed together in the first book.
(b) Bracton, 4 b. Fleta, i. 1. 2. 3. ~ 1 = Azo, f. 241. No. 1-3.
(c) Bracton. 5. (Fleta I. 3. 4.): Liber vero et ingenuus dici poterit, qui statim
ut natus est liber est, sive ex duobus liberis......sive ex duobus libertinis......
(81)




82   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART II.
"quidquid  per  servum   adquiritur, id  domino  adquiritur;"
and the question regarding acquisition by a servus communis
is decided by Bracton, if not in the words, at least in the
sense of the Roman jurists, f. 25 b.:
"item  esto, quod plures sint domini, et servus sit communis, si contrahat et stipuletur, qusero, cui istorum
dominorum, utrum  uni vel ambobus?  Respondeo: Si
uni tantum, ipse totum  habeat, si ambobus, tune commune  erit secundum   quod  servus fuerit stipulatus.
Sed semper ratio habenda est de parte dominoruin;"
(evidently from  ~ 3. Inst. de stipul. serv. 3. 17.).  The condition  midway between  bond  and  free occupied
Libertini.
by libertini was a consequence of manumission,
upon the form  and  effects of which Bracton  is, however,
silent.  Like the Roman law, Bracton recognizes a freedom
in fact, arising from  the lord's neglect to enforce his rights,
which protected the villain's possession of liberty (possessio,
seisina libertatis), and burdened the lord with the proof of servitude in the quaestio de statu.  Such apparently
Statu liberi.
free persons were  called  statu liberi, a Roman
name borrowed  from   an  entirely  different legal relation.
Conversely, those  in  an  apparent condition  of
bondage are styled by Bracton statu servi (d).
In connection with bondage, the patria potestas is mentioned
by Bracton as another relation of power founded
Patria potestas.
upon  the  distinction  between  homines smi juris
and alieno jure subjecti.  It was not, however, the Roman insive nascatur ex matre ancilla et patre libero, dum tamen extra villenagium et
in libero thoro, dum tamen ex matrimonio. Item ex matre libera et servo extra
matrimonium. Et sufficit matrem esse liberam vel tempore illo quo concepit,
vel tempore quo parit, vel saltem in medio illorum temporum, licet ancilla facta
fuerit, quia non debet calamitas matris ei nocere, qui in utero est. - pr. J. 1. 4.
Littleton was aware of this disagreement between the Roman and the English
law; he says, ~ 187: Mes si niefe (nativa) prend frank home a son baron, lour
issue est franke. Et c'est contrarie a la ley civille, car la est dit: partus sequitur ventrem.  Cf. also Fortescue p. 42. No notice appears to have been taken
of c. un. X. de nat. ex lib. ventr. 4. 10. [Cf. Hallam, Middle Ages II. 171, 172,
text and notes, (Ed. Boston, 1853); on "extra villenagium," see Reeves I. 269
note (a).-Tr.]
(d) Bracton, 7. 7 b. 190 b. 194, 197. [See Reeves I. 270. Concerning statuliberi, v. D. de statuliberis 40. 7.-Tr.]




CHAP. IX.]             THE LAW  OF PERSONS.                            83
stitution of that name which he had in view, for he mentions
none of its characteristic peculiarities and effects, except the
general principle borrowed from  ~ 3. J. de pat. pot. 1. 9. that
"qui ex te et uxore tua nascitur, in tua potestate est,
item  qui ex filio tuo et ejus uxore nascitur,......qui vero
ex filia tua nascitur in potestate  tua non est, sed in
patris ejus vel avi, vel proavi" (e),
and the rule, which he afterwards discusses more fully:
"pater est quem  nuptioe demonstrant."
Familiar grounds for dissolving  the  patria  potestas are
mentioned, viz., mors naturalis et civilis, dignimentiond.    viz.,                               I  -i  ^Emrancipatio.
tas episcopalis, and emancipatio, the last referring               ncio.
to the forisfamiliation of children at that period common in
England:
"si quis filium  suum  forisfamniliaverit cum  aliqua parte
hereditatis suae" (f) (1).
Adoptions were not in use in England, and Bracton is consequently silent concerning them (g).
Some principles of Roman law  also occur in the distinctions which Bracton makes in regard to sex and
sanity. Thus we find the provision of the Roman
law  in regard to hermaphrodites:
"hermaphroditus conparatur  masculo tantum  vel feminTe tantum  secundum  prrevalescentiam  sexus incalescentis" (h),
and L. 14. D. de stat. hom. 1. 5. concerning monsters:
"-item  qui contra formamn  humani generis converso
(e) Bracton, 6.
(f) Bracton, 6 b: item morte civile, ut si pater damnetur propter aliquam
feloniam commissam (Azo, 242 b.: "si damnetur in metallum vel opus metalli vel
deportetur in insulam")......vel perpetuo exuletur, si autem relegetur ad tempus
nihilominus retinebit liberos in potestate sua.
(g) I have found adoptions mentioned in one passage only (f. 63 b.), but in an
entirely different sense: Legitimantur (liberi) quandoque quasi per adoptionem,......ut si uxor de alio conceperit, quam de viro suo,.......si vir ipsum in domo
suo susceperit et......nutriverit in filium, etc. Adoption here must mean the
recognition of issue born in matrimony.
(h) Bracton, 5. Fleta, I. 5.  3.
(1) Cf. Reeves, I. 42, 110.-Tr.
6*




84  BRACTON AND, HIS RELATION TO THE ROMAN LAW. [PART  II.
more procreantur......  Partus autem qui membrorum
officia ampliavit, ut si sex digitos habeat,...... talis inter
liberos connumerabitur" (i).
The distinction which Bracton makes between furiosi, non
compotes mentis, as completely incapable of acting (except
in lucid intervals) and fatui, stulti, ideotae, also recalls Roman
authorities (j).
(i) Bracton, 5. Fleta, I. 5. ~ 1. 2.
(j)Bracton, 12. 15. 375 b. 420 b. Flet. I. 11.  1 10.




CHAPTER X.
THE LAW  OF THINGS.
Introduction.
BRACTON follows his Roman models in his commentary
upon the general doctrines relating to things, and
Law of things.
rights concerning them.  He does so especially
in regard to the division of things, and the termDivision of things.
inology of the Corpus Juris which he has adopted
in his chapter de divisione rerum has since remained fixed
in the English law. Thus we find it said there (as in Azo in
Inst. 2. 1.):
"rerum qusedam sunt in patrimonio nostro, et qusedam
extra......  Qusedam  vero nec sunt in patrimonio, nec
extra, sicut jura" (a)and also:
"aliae corporales......, que tangi possunt, sicut terra, fundus,......alise incorporales......,sicut sunt jura, quse videri
non possunt nec tangi" (b).
We find  also the tertia divisio  rerum, under which are
distinguished res communes (aer, aqua profluens, mare, litus
maris), res publicce (flumina, portus, usus riparum), res universitatis and res nullius.   Under the last are enumerated
res sacrce (which with Bracton include res religiosce) and res
sancte (c).
Before going further in the discussion of the law of things
some general remarks are here necessary.
(a) Bracton, 7 b. Flet. III. 1. ~ 1-3. Azo, 243 b. No. 7.
(b) Bracton, 7 b. 10 b. = Azo, 246 b. No. 8.
(c) Bracton, 7 b. 8. Azo, 243 b. 244. Bracton, 14 b. 44 b. 170 b. 180 b. where
res sacrae and res religiosse are throughout promiscuously used.
(85)




86  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
i/t is well known that the distinction between realty and
personalty running through the English law, has
Comparison of the... 
English and Ro- corresponding to it two distinct systems of law,
mail systems as one comprehending the law of immovables and
to the law of
things.   the other that of movables. These two legal systems divide not merely the law of things, but also
the law of obligations, of inheritance and of procedure. Although this distinction is not theoretically laid down by
Bracton, we can see that it was already in existence, and can
recognize how it affected the way in which the influence of
the Roman law operated. Now, while the principles of the
Corpus Juris were adopted without hesitation for movable
property by Bracton and the English lawyers of his time(d),
the progress of the Roman law towards influencing the law
of immovables was checked by the powerful obstacle of a
legal system, already fully developed and complete within
itself, which had grown up on purely feudal foundations,
and which was thoroughly penetrated with the spirit of the
feudal polity. Some particulars were indeed borrowed from
the Roman law, but its fundamental principles were unaffected by any contact with the Roman law and its influence.  Hence  arose the difference existing between the
Roman and the English laws even in their fundamental
notions of the right of property and of rights or interests
in things. The principle of the English law that there could
be no allodium  except in the king's hands, and that the
possession of all land was subject to some sort of feudal
dependency (e), was alone irreconcilable with the Roman
notion of dominium, which was most clearly defined, and
which was to a certain extent constructed upon an ideally
complete model of ownership.  Furthermore, the Roman
Real rights or interests, issuing in certain  defined cases
out of the dominium, were founded upon  the  greater
or less degree of legal power and control over the thing
(d) Cf. Chapters V. and XII.
(e) Coke, 1 Institutes 1 b., expresses the principle thus: "praedium domini
regis est directum dominium, cujus nullus est autor nisi deus ipse."




CHAP. X.]        THE  LAW  OF THINGS-INTRODUCTION.                        87
itself in which the particular interest existed (1), and therefore
rested upon an ultimate basis purely legal.  But the different
kinds of feudal dependency to which land might be subjected
and  the duration  and  strength  of the possession, were the
causes which created the English system  of interests in the
possession or seisin of land (2). These latter hence rested upon
an ultimate basis of facts, presented by the actual characteristics and peculiarities of the feudal system, to which the law
was compelled to adapt itself.  The interests so created were
thus rights whose  character must be termed  relative, when
compared with the absoluteness of that of the Roman Jura in
re (f).  This relative character is equally seen in the highest
possible  of these  rights, the feodum  (v. note (f) ), although
Bracton does not hesitate to identify it with dominium  and
(f) The following summary will serve to give an insight into the legal system in force in Bracton's time.  All land being subject to the feudal tie, the
land was styled tenementurn, the possessor tenens, and the lord dominus. Bracton
himself does not give any technical expression for this dependent relation, but
at a later period that of tenure was adopted. According to the character of this
feudal relation the following distinctions were made: I. Lay holdings, comprising the following: 1. Feuda militaria, qum tenentur per homagium et servitium militare; 2. Socagia libera; 3. Villenagia; II. Ecclesiastical and eleemosynary
holdings in libera eleemosyna (frankalmoign). This division applied only to the
manner of possession; the interests in the possession of land were classified according to the duration of their existence. These were as follows: I. Tenementa
libera (franktenement,freehold, in later language), comprising interests for periods
not definitely ascertained. They were, 1. The greatest possible interest, feodum (fee simple), or possession with unlimited inheritance,.i.e. quod quis tenet
ex quacunque causa sibi et heredibus suis, Bracton, 263 b. He who held quoad
feodum was seised in dominico suo ut de feodo, Bracton, 372 b. 2. Possession for
a term of life, ad terminzum vitse, e.g. the widow in her dower, or the widower per
legem Anglie. These life interests are not to be considered as usufruct, but
rather as revocable property.  II. Interests less than liberum  tenementum,
comprising: 1. Possession for a time definitely fixed, ad tempus, ad terminum annorum, firma (whence firmarius), even when it exceeded any possible limit of a
man's life.  To the firmarius Bracton ascribes usus and ususfructus in contradistinction to proprietas and feodum.  2. Mere precarious possession, ad voluntatem. Bracton, 27, 39 b. [As to an interest depending upon the life of another,
cf. Bracton, 26 b.-Tr.]
(1) The dominium, or right of property, being the exclusive and unlimited
power and control of a person over a thing. Cf. Savigny, Trait6 de Droit
Romain, trad. Guenoux I. ~ LVI, p. 362. —Tr.
(2) Cf. 2 Blackstone's Com. 104-106.  Spence I. 33, 34. —r.




88  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
proprietas. But it would be an error to look upon the true
owner according to our notions as always having the feodum;
for the feodum of one man as of possessory right might coexist with the jus majus or better right of another. The
latter being mere right (merumjus) without any corresponding possession, is of no importance for the law of things (3) (g).
-In this case as in others the Roman terminology failed to
describe legal relations, which were foreign to the Roman
law. Hence when Bracton occasionally uses such expressions
as "ususfructus, fructus, usus, habitatio," he does not at all
connect with them the legal notions which the Corpus Juris
has made current with us. On the contrary those words are
used by him in a general meaning and not in a technical sense,
and without reference to any particular legal institution of
the Roman law.  It would thus be a great error to confound
the ususfructus ascribed to a firmarius (v. note (f)) with the
usufruct of the Roman law, or even to apply to it any particular principle of the Roman institution (h).
Notwithstanding, however, the obstacles which the Engnfluence of the lish law of realty opposed to the progress of the
Romanlawupon Roman law, the latter exercised an important
the English doc-..
trin of posses- influence upon a subject relating both to the law
sion.       of immovables and that of movables, viz., the
doctrine ofpossession.  The clear distinction between proprietary right carrying with it possession (and thus constituting legal possession) and actual corporal possession, is found
in the English as well as in the Roman law. It might indeed be difficult to prove that the theory of possession in
England, or rather the appearance of possession as a peculiar institution of the English law, was connected with the
introduction of the Roman law. There can, however, be no
doubt of the Roman character of the doctrine of possession
in Bracton and Fleta (i), which must not only be regarded
(g) Bracton, 434 b.
(h) Bracton, 207, 220, 259.
(i) As early as Glanville, we find laid down the distinction between petitory
actions, quse super proprietate proditae sunt, and possessory actions, que super
possessione loquuntur; I.,. XIII. 1. 9.
(3) I.e. has no place in a classification of interests in things according to
their quantity.-Tr.




CHAP. X.]    THE LAW OF THINGS-INTRODUCTION.                  89
as existing law in their day, but must also be considered as
the basis of subsequent legal development upon this head.
Their doctrine of possession is based and developed upon
Roman notions and ideas, and those writers look at the subject in the same light as the contemporary Civilian school,
and in many respects copy its views (j).
Upon this subject, which will be discussed in the next
Chapter, Bracton shows a more than ordinary freedom  in
the use of his authorities, and, in his mode of exposition
especially, has not followed Azo so closely as elsewhere.
(j) Bruns in his Recht des Besitzes im Mittelalter (Law of Possession in the
Middle Ages), ~ 42, has indeed mentioned the Norman law, but appears not to
have made use of Bracton.




CHAPTER XI.
POSSESSION.*
BRACTON has not assigned a special place in his system to
Possession in the doctrine of possession, but it is discussed inBracton.    cidentally to the acquisition of property and in
connection with traditio, in chapters 17-22 of his second
book.  There is also much relating to it to be found scattered  through  the work, especially in the tract de assisa
novx disseisine (a).
The notion of possessio, seisina —for both words are promists definition.   cuously used-is defined and explained in Azo's
words as follows:
"possessio est corporalis rei detentio, corporis et animi,
cur adrminiculojuris concurrente...... Et possessio ideo
dicitur rei detentio, quia naturaliter tenetur ab eo, qui
ei insistit scilicet corporaliter" (b);
and Azo's conception of Civil and Natural possession, which
Natural and Civil was at that time most generally diffused, is thus
possession. reproduced by Bracton:
"possessionum  autem  alia civilis, alia naturalis. Civilis
autem  est, quwe animo tantum  retinetur, naturalis qua
corpore."
Natural possession was the pure corporal detention  as in
Azo, who describes it as that
"quam  quis corpore suo vel oculis et animi affectu
adipiscitur;"
Civil possession was the iction of possession which still continued after the loss or cessation of natural possession.
* Upon possessory actions v. Chapter XX.
(a) Possession is also discussed in Fleta, III. c. 15., de traditionibus et
usucapionibus.
(b) Bracton, 38 b. Azo in Cod. (7. 32.) f. 189 b. No. 8.
(90)




CHAP. XI.]               POSSESSION.                        91
Azo remarks:
"illam  tamen naturalem, quam relineo animo firmiter,
dico, posse dici, et vere dicitur, civilis" (c).
Bracton however seems to reject Azo's conclusion that both
cannot be united in the same person.
"Non videtur," says-Azo, "quod eodem tempore quis
possideat civiliter et naturaliter;"
but Bracton on the contrary adds to the definition, mentioned above, the remark:
" et potest quis utroque modo possidere, scilicet animo et
corpore,"
and moreover holds that he,
"qui ex aliqua justa causa adquisitionis naturalern
possessionem habuerit et civilem,"
lost both by a traditio:
" statim amittit et desinit habere utramque ex ipsa traditione" (d).
Bracton's view appears in the clearest way in the case of
ejection (disseisin). The ejected man lost at first only the
natural possession and not the civil, because
"animo retinere potest, licet fuerit extra possessionem."
He recovered the former if he succeeded in repossessing himself recenter ineontinenti. If he made no attempt to do so, or
the attempt to redress himself failed, he lost also the civil
possession:
"provideant igitur sibi,...... quod injuriam  disseisine
per patientiam, dissimulationem, negligentiam, desperationern, vel negligentem  impetrationem  non tepescant, per quod amittunt utramque possessionem  naturalem scilicet et civilem" (e).
The doctrine laid down of f. 51 that after a person had
voluntarily gone away from  his land, he still retained the
civil and natural possession
"quousque alius ingrediatur contra voluntatem suam,"
appears to be derived from a foreign source, but not from
(c) Bracton, 38 b. 41 b. Azo, loc. cit. No. 9.
(d) Bracton, 51.
(e) Bracton, 41 b. 51. 163. 163 b. 164. 164 b.




92  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
Azo.  The doctrine that
"solo corpore,......sine animo ut post mortem  alicujus,
donec corpus efferatur ad sepulturam"
possession could be retained,
" quia ante non erit possessio vacua,"
appears to be original with Bracton, who however does not
deduce any practical consequences from it (f).
The expression of the Roman  sources "in possessione
esse" is found in Bracton denoting natural possession, and
the axiom:
"longe aliud est possidere (seisitus esse) quam esse in
possessione (in seisina),"
expresses with him the opposition between mere possession
in fact and possession judicially cognizable.  In this sense
natural possession is ascribed to all " qui alieno nomine possident," such as villains, guardians, procuratores, usufructuarii and firmarii.  Hence was derived the principle
"ille possidet cujus nomine possidetur" (g).
The person "cujus nomine possidetur" had in these cases
the civil possession; and adds Bracton
"per tales sibi retinet naturalem,"
whereby he evidently would express the same idea which
Azo, f. 190 b., clothes in these words:
"cum igitur per me habeat naturalem  (possessionerm),
ergo ipsam habeo per eum" (h).
Other analytical divisions of possession then adopted by
Other analytical jurists are reproduced by Bracton.  Of these I
divisions ofpos- will only briefly mention the distinction between
session.
possessio justa and injusta (i), depending solely
upon the jus possidendi; that between possessio vera and
imaginaria (fictitia, colorata), a distinction occurring in the
Roman cases,
(f) Bracton, 41 b. 262.
(g) Bracton, 165, 167 b. 168. 206. Fleta, IV. 3. ~ 1.
(h) Bracton, 165, 167 b. 168. 206.
(i) Bracton, 39. 51. 195 b. Item quis rem alienam potest juste possidere......
et injuste, sed tamen secundum diversos respectus; juste quantum ad feoffatorum suum et alios omnes, qui jus non habent; injuste tantum quantum ad
ipsum qui jus habet scilicet verum dominum.




CHAP. XI.]                    POSSESSION.                              93
"ubi quis se gesserit ac si possideret, cum  alius possideat;" and where one "dolo desiit possidere" (j);
and lastly the distinction between possessio rei corporalis and
possessio juris vel quasi-possessio, depending upon the nature
of the object possessed (k).-The subject of quasi-possession
will be discussed in another part of this chapter.
Civil law principles also obtain in the acquisition of possession. At the very beginning of this subject we Acquisition of
find the rule:                                                 possession.
" adquirere nemo potest possessionem  nisi utroque modo
corpore et animo,-neque animo per se, neque corpore
per se" (1).
The first of these two elements, viz. the intention of possessing, is called  animus possidendi et retinendi, Animus possivoluntas retinendi possessionemn, affectus possi-                dendi.
dendi (m), and presupposed capacity to will.  Hence the following persons were incapable of acquiring possession: servi,
ab hostibus capti, quia ab aliis possidentur, and furiosi:
"tales enim  cum  animum  non habuerint adquirendi,
in tali statu adquirere non possunt seisinam" (n)
(cf. L. 1. ~ 3. D. de adquir. et amitt. poss. 41. 2.).
The nature of the other factor in acquiring possession, the
corpus, can be ascertained from what is laid down
Corpus.
in  relation  to  occupatio  and  traditio.   In  regard to occupatio, it is here only necessary to refer to the
next chapter, where it is discussed, and where we shall find
merely the Roman principles of apprehensio. Traditio, which
Bracton treats of incidentally to donatio, demands however
a closer examination in this connection.
(j) Bracton 39. 183. 269 b. 432 b.: item alienare poterit sine dolo post impetrationem et post summonitionem,......quod de summonitione nihil sciverit.......Si autem fecerit contrarium,...... haberi debet pro possessore,.......ut de term.
S. Mich. anno reg. H. 4, incipiente 5. [Cf. L. 25-27. D. 6. de rei vind. 1.-Tr ]
(k) Bracton, 38 b. De re autem  corporali ideo dicitur, quia incorporalia
non possunt possideri, nec usucapi, nec sine corpore tradi, quia per se traditionem non patiuntur. Ideo dicuntur quasi possideri, tradi enim possunt vel
quasi, per patientiam et usum.
(1) Bracton, 38 b. 41 b. 51 etc.
(m) Bracton, 39. 39 b. 40. 41 b.
(n) Bracton, 44 b. 375 b. 420 b.




94   BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
Traditio (1), says Bracton, in uno sensu (i.e. as
Traditio.
a mode of acquiring possession):
"nihil aliud est, nisi in possessioner  inductio de re
corporali."
Possession was thereby obtained only
"tune, quum  donator corpore et animo recesserit a
possessione sine aliqua spe et animo revertendi ut
dominus, et cum  donatorius in possessione vacua extiterit
corpore et animo et cum  voluntate retinendi possessionem;......quia donator nunquam  desinit possidere, donec
donatorius plenarie fuerit in seisina, nec jacebit seisina
aliquo tempore medio vacua" (o).
From this and a series of other passages, it appears that
Possesso vaua.  Bracton lays the principal stress upon the existPossessio vacua.
ence of a possessio vacua as a requisite of the traditio, a view which we know controlled the contemporary
Civilian  doctrine upon the subject, il  consequence of an
erroneous generalisation of certain passages of the Corpus
Juris, (L. 2. ~ 1. D. de act. emt. 19. 1; L. 13. C. de distr. pign.
8. 28; L. 12. C. de prob. 4. 19.) (p).  With detailed and even
casuistical accuracy, he determines whether a possessio vacua
should or should not be considered as existing in particular
cases, (especially considering whether the old possessor or his
representative had remained on the land in company with the
new possessor); in doubtful cases he discriminates whether
the traditio was vera or imaginaria according to the ascertainable purpose of the man making it (q).  The possession
is expressly declared not to have been vacua:
" si quis in eadem possessione fuerit, sicut procurator,
(o) Bracton, 39 b. 41 b. Fleta, III. 15. ~ 10. 11.
(p) So also in Azo ad Inst. 2. 1. f. 246. No. 4.: item si emptor inducatur in
vacuampossessionern. Cf. Fleta III. 15 ~ 11.
(q) Bracton, 41 b.-43. 49-51. The case in which the former possessor returned is mentioned as doubtful.
(1) As the word traditio in Bracton applies to movables or personalty as well
as to land (e.g. f. 40: si quis equum emerit in ipsa traditione suus erit), it
therefore may be translated either delivery or livery, according to its application
to the one or the other.-Tr.




CHAP. XI.]                     POSSESSION.                             95
colonus, inquilinus, servus vel amicus,.......cum  non sit
in seisina nomine donatorii" (r).
It was necessary that this evacuation or act whereby possession was given up by one party should, in order to complete the traditio, be succeeded by the immediate assumption
and retention  of actual possession by the other (s), (which
retention, however, it seems was only required Different forms of
to be temporary).  The practical details of the                 traditio.
traditio also show the adoption of Roman principles. Thus
Bracton says f. 40:
"non necesse est, omnes glebas circumire, nec ubique
nec undique pedem  ponere; fieri debet traditio  per
ostium  et per haspam  vel annulum, et sic erit in possessione de toto ex voluntate et aspectu et possidendi
affectu " (t) (evidently after L. 3. ~ 1. D. de poss. 41. 2.).
Thus too the so-called symbolical traditio  is recognized as
admissible, f. 44:
"item  si claves cellulse vivarie vel horreorum  tradiderit quis domino vel procuratori, vina et merces tradi
videntur" (after L. 1. ~ 21. D. de poss. 41. 2.).
So also, on f. 41, he says:
" idem  etiam  dici poterit et assignari, quando res vendita est in conspectu quam venditor dicit se tradere,
ut si ducatur in horreum vel campum" (u).
Bracton is likewise familiar with the so-called brevi manu
traditio, f. 41:
"si tibi vendam quod tibi accommodavi (sic) aut apud
te deposui,......et sic mutaverim  causam  possessionis,
hoc fieri poterit sine mutatione possessionis. Ex hoc
(r) Bracton, 42 b.
(s) Br. 43: item incipit quis possidere quando de voluntate donatoris nactus
fuerit possessionem vacuam, corpore et animo retinendi; and 41 b.: cum ingressus fuerit vacuam possessionem per se vel per suos.-Fleta III. 15. ~ 10.
(t) Bracton, 40. 42 b.: quia licet totum fundum non circumierit, vel in omni
parte non extiterit, tamen ex ipsa traditione totum adquisivit, cum tempore
traditionis eo animo seisinam nactus est, quod totum fundum cum pertinentiis
possideat usque ad terminos. Fleta IlI. 15. ~ 6. The traditio per ostium,
etc., mentioned in the text refers to the symbols of delivery usual in England
as early as the Saxon period.
(u) Assignari is taken from Azo 246. No. 4.: assignari, quum res vendita vel
donata est in conspectu, quam venditor vel donator dicit se tradere. [The above
is the so-called longa manu traditio.-Tr.]




96   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART II.
enim  quod  patior, rem  meam   esse tuam   ex  aliqua
causa vel apud te esse, videor tradere" (v) (from  L. 9.
~ 5. D. de adqu. rer. dom. 41. 1.).
The acquisition of possession by means of representatives
Acquisition ofpos- must have been of much practical importance in
sessionbyrepre- Bracton's time, judging  from  the extent of his
sentatives.
sen.     remarks thereupon, part of which are taken verbatim from L. 1. ~ 2 sq. D. de poss. 41. 2. These representatives might be either free and independent persons, or those
"quos sub potestate nostra habemus" (children, servi).  The
former might be either voluntarily constituted (procuratores),
or imposed (curatores, custodes).   As in  the new  Roman
law, in the case of free representation (2) it was of no importance that the principal should have a special knowledge
of the acquisition:
"adquiritur nobis possessio per procuratorem  et tutorem  etiam  nobis ignorntibus.  Et si dicatur per eos
nobis non'adquiri, qui nostro nomine accipiunt, futurum   est, ut nec ipse possideat scil. procurator vel
tutor, cui res aliena sic tradita est, nec is, qui tradidit,
quia concessit possessionem" (=  L. 1. ~ 20 D. de poss.
41. 2.).
But it was requisite  that the representative  should  have
capacity to will:
"quia si minorem  vel furiosum, liberum  vel servum,
miseris ut possideas, nequaquam per eos videris possessionem   apprehendisse, quia  intellectum   non  habent" (= L. 1. ~ 10. loc. cit.) (w).
(v) Bracton, 40. Item sufficit pro traditione corporali nuda voluntas domini
ad alium, quasi mutata causa possessionis;......ut si quis rem alicui locaverit
vel concesserit ad terminum vitre vel annorum et postea eidem vendiderit vel
donaverit, licet eam ex tali causa primo non habuerit, tamen eo quod ipse
dominus patitur, eam ex tali causa...... apud eum esse, sua efficitur.
(w) Br. 43 b. 44. Per communem servum adquirimus etiam singuli in solidum, si ad hoc tamen agat servus, ut uni tantum adquiret; si autem ad hoc non
agat, tunc singulis adquiritur in communi (= L. 1. ~ 7. D. de poss.)..... Item per
servum, qui in fugk est, dum tamen a nullo possidetur, quia quamdiu ab alio
non possidetur, a domino videtur possideri (= & 14. 1. c.). Fleta III. 15. ~ 14.
(2) Upon free and necessary or non-free representation, v. Savigny, TraitN
de Droit Romain, trad. Guenoux, III. ~ 113, especially note (g).-Tr.




CHAP. XI.]                     POSSESSION.                             97
The acquisition of possession was therefore effected thus:
corpore, i.e. corpore alieno in the person of the representative, and animo, viz., by the intention, which the latter must
have, of obtaining possession for his principal (x). In one
passage I find the  constitutum  possessorium  mentioned  as a
substitute for the traditio:
" f. 41, item  illud idem poterit assignari, cum  rem  illam,
quam  tibi donavi et non tradidi, conducam  a te, et sic
videor tradere."
(Verbatim  from  Azo f. 246 n. 4., where L. 77. D. de rei vind.
6. 1. is cited.)
except some remarks specially referring to  ejection (disseisin), we find few general principles in Bracton Loss of possesconcerning the loss of possession.  It has already               sion
been shown in speaking of civil and natural possession, how
Bracton  considers that one might continue  even  after the
other had  ceased.  Consistently with  this view  the utrumque in contrarium  actum  of the Roman rule in L. 8. D. de poss.
41. 2., is indicated as being necessary to the removal of both
elements of possession, and the following rule is laid down
and frequently repeated in various forms of the same purport:
"amitti non poterit sine utroque scilicet animo et corpore, quia  retinetur animo  sine  corpore et corpore
sine animo, et cum  utrumque defecerit, amittitur ex
toto" (y).
In accordance therewith, a person not having the capacity
to will could  not lose a once acquired possession, and he
who had abandoned his land under pressure of poverty still
retained possession anino civiliter (z).
(x) This appears from the expressions used in many places: nomine suo
(i.e. domini) corpore alieno;-nomine suo. Br. 41. 41 b. Hence if any one had
assumed possession as negotiorum gestor only and the dominus did not ratify,
the gestor acquired no possession, quia nomine suo non accepit, sed alieno.
Br. 42 b. Fleta III. 15. ~ 13.
(y) Bracton, 39. 41 b. 45 b. 51 et al.; also Fleta III. 15. 1 2.
(z) Bracton, 165 b.:-quia in ipso furore animum mutare non poterit, nec
desinere possidere, quia consentire non potest, nec dissentire. Cf. 375 b. 420 b.
-Bracton, 262.: item si per paupertatem possessionem dereliquerit, ita quod
dominus capitalis pro defectu servitii tenementum in manum suam ceperit,......
vel alio excolendum dederit,......satis moritur tenens seisitus, quia animo relinet
civiliter, licet corporaliter non fuerit in possessione: evidently after L. 4. C. de
poss. 7. 32.




98   BRACTON AND HIS RELATION TO THE ROMAN LAW.  [PART II.
To the foregoing view  of the possession of things, some
remarks  upon juris quasi possessio  should  be
Quasi-possession.
added.  Bracton, indeed, lays down no general
principle upon quasi-possession, but it is evident from his
treatment of its application to particular matters that, without altogether sharing the extreme views of the contemporary
Canonists, he takes a position nearer theirs than that of the
Glossators, who confined themselves on this subject to the
platform  of the Roman Law  (aa).   According to Bracton,
quasi-possession existed in the cases of servitutes (which
were only predial, personal servitutes being altogether unknown  to the English  law), granted  franchises and privileges (tolls, markets, jurisdictions, etc. called libertates), and
rights of presentation (bb).  Whether the jus advocationis
itself was the object of quasi-possession or was included in
the corporal possession of the land to which it was appurtenant, is left in doubt by Bracton (cc).
Bracton's views concerning the acquisition and the loss of
Acquisition and quasi-possession are obscure, and it may be preloss of quasi- sumed that the doctrine upon this subject was
possession.
possession not fully settled in his time.  Ifl regard to servitutes and libertates, it was not in general necessary that there
should be an  actual usus of the right in  order to  acquire
possession; it sufficed
" quod quis habeat aspectum  et possidendi affectumrn.
"Adquiruntur scilicet ex solo aspectu accipientis......
et possidendi voluntate et affectu...... Et sic adquiritur
possessio servitutis ante usum."
"Hujusmodi libertates, cum  a rege concessae fuerint, statirn......quasi possidentur" (dd).
(aa) Cf. Bruns, Recht des Besitzes (Law of Possession) 185 sq.
(bb) Bracton, 52 b. 53.: hujusmodi jura (s'ervitutes) quasi possidentur ex
fictione juris. Among servitutes the communia pasturae occupies a most prominent place; 221 sq. Upon libertates, v. Bracton, 55 b.-58.; seisina presentandi,
53 b. [Cf. also Reeves I. 306.-Tr.]
(cc) Bracton, 53 b.:-quia sine corpore (ad quod pertinet) recte possideri
non possit, licet ab aliquibus dicatur, quod quasi ad similitudinem servitutis.
[Cf. in Reeves I. 352, 353.-Tr.]
(dd) Bracton, 40. 53. 56. 222: et quo casu statim erit in seisina, licet statim




CHAP. XI.]                       POSSESSION.                              99
The usus however served to prove the continued existence
of the possession: possessio retinetur per usum (ee). It is true
that in one passage a usus permitted by the owner of the
servient land is spoken of as being necessary, in order that
possession  might be  acquired, but from   the  expressions,
"pacifice sine interruptione, per longum  tempus," this would
appear to refer to the duration of possession required in
cases of usucapio (ff). The seisina praesentandi however
could only be acquired through at least one actual exercise
of the right, and  he only had  seisin who himself had  exercised the right at the last vacancy, or whose ancestor had
done  so (gg).  The  possession  of a servitus (and  also  that
of a franchise) was lost by non usus (longa patientia, negligentia), and also by dispossession, i.e. hindrance of the
usus (hh).
In conclusion it will be interesting to see how Bracton regards the relation which possession bears to the Grades of possesright of property and the different possessory in-                   sion.
terests.  Discriminating between the element of fact and the
element of law existing in possession, he makes a scale arranged according to the different proportions in which those
elements might be combined, which must include all possesnon immittat averia sua (pecora).  Bracton, 226 b.  The two agencies, corpus
and ahimus, are distinguished in the following passage: et semper videtur uti
voluntate et animo civiliter, et praesentia et aspectu naturaliter; Bracton, 225.
(ee) Bracton, 53. 56.  [See Reeves I. 306.-Tr.]
(ff) Bracton, 52 b.: patientia trahitur ad consensum, et adquiritur possessio
juris per usum, ut si dominus proprietatis......ex patientia permiserit uti vicinum suum, prvesens et sciens, in fundo suo aliqua servitute,......sicut in pastu
pecorum, itinere vel actu,......per longum tempus pacifice sine interruptione. [See
Chapter XV. —Tr.]
(gg) Bracton, 53 b. 240 b.: cum autem semel praesentaverint et ita sunt in
seisina presentandi.-Hoc est quod ultimo prsesentaverit aliquem, qui ad praesentationem suam admissus fuerit et institutus. Cf. Glanville IV. 1.; XIII. 20;
Fleta V. 11 sq. Hence the possessory action was called assisa ultimie prsesentationis. This seisina praesentandi gave rise to the Decretal of Alexander III. c. 19.
X. de jur. patr. 3. 38.:-"si tempore praesentationis sume ille, qui eum praesentavit, juspatronatus ecclesisepossidebat...... Si vero non possidebat, sed tantum
credebatur patronus esse, cum non esset, nec possessionem patronatus haberet
(hence distinguished from the possessio juris patronatus) secundum consuetudinem
Anglicanam, poterit" etc.
(hh) Bracton, 53. 56. 222. 225. 232.




100  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
sory relations from  the highest to the lowest presented  by
the different English interests in realty.
The  gradation  is as follows:  1. possessio  quae minimum
habet possessionis et omnino nihil juris, neque aliquam  juris
scintillam, nuda pedis positio, i.e. the possession of him  who
without right intruded  upon  an  hereditas jacens or other
possessio vacua; 2. Possession with parum  possessionis et nihil
juris: i.e. violenta, clandestina, precaria possessio; 3. Possession with aliquid possessionis sed nihil juris: the possession of
a guardian, firmarius, tenant for years  etc.; 4. Possession
with multum possessionis et nihiljuris, i.e. that of a freehold for
life; 5. Possession with plus possessionis et multum juris: the
fee  to  a man  and  his heirs;  6. Lastly, he  had plarimium
possessionis et plurimum  juris, who  united  in  himself the liberum  tenementum, feodum  et proprietatem  (jus merum), i.e.
could show not only the jus possessionis but also the jus proprietatis, the conjunctio seisine cum jure.  This double right,
jus duplicatum, was called dreit dreit (droit droit) in the legal
language of the period (ii) (3).
(ii) Bracton, 39. 160. 206 b. 372 b. Fleta III. 15. In an entirely different
sense Azo makes the following distinction, f. 190: possessio quoe multumjuris
habet......; alia possessio qume plurimum habet facti in adquirendo et parum juris
in retinendo. Bracton's terminology however seems to be borrowed from this
passage.  [The spelling adopted by Bracton, f. 206 b., is dreit dreit.-Tr.]
(3) Cf. Reeves, I. 319, whose view is as follows: "Of land a man might have
either what they calledpossession, or what they called jus, or proprietas.  Possession was of various sorts, and divided by very nice distinctions. One was
said to be quedam nuda pedum positio, which they called intrusion; and this contained in it, says Bracton, minimumpossessionis, and nihiljuris, being somewhat
of the nature of a disseisin: in both it was a nuda possessio, till it received a
vestimentum by length of time. Another was a precarious and clandestine possession, attended with violence, which acquired no vestimentumt by length of
time; and this, says the same authority, had parumpossessionis, and nihiljuris.
A possession for term of years, as it gave nothing but the usufruct, was considered in a degree higher, as having aliquidpossessionis, but nihil juris. The
next was for life, as dower, or the like; and this being a step higher, was said
to be multum possessionis, but still nihil juris. The next degree was, where a
person had the freehold and fee to him and his heirs; and then he was said to
have pluspossessionis, et multum juris: and he who had the freehold, fee, and
property, united in himself, had plurimum possessionis, and plurimum juris, which
was called droit droit, and contained the highest degree of property and possession; except that, even then, some other person might have jus majus, or greater
right."- Translator.




CHAPTER XII.
ACQUISITION OF PROPERTY-OCCUPATIO, ACCESSIO, SPECIFICATIO.
BRACTON, as we have already seen from the sketch of his
system given in Chapter II., refers the acquisi- Acquisition of
tion of property partly to the jus naturale (jus    property.
gentium), and partly to the jus civile, although he does not
draw any practical conclusions from the distinction. It has
also been remarked that when our author treats of the modes
of acquisition which belong to the first category, d  f   i
-.    ^               &    <7?  Modes of acquisihe almost always copies both the matter and  tion by the jus
form  of his Roman authorities (the Institutes,  naturale (j 
gentium).
lib. II. tit. 1. de divisione rerum  and Azo's commentary), and even expressly refers the reader to those
sources as being, as it were, the ratio naturalis of the law
upon such matters (a). These principles of the Roman law,
as found in Bracton and repeated in Fleta, in fact, at once
became common law in England, and are still of practical
validity at the present day (b). It is true, as we learn from
Bracton himself, that a limitation of this proposition occurs
where the Common law had framed provisions of its own relating to these modes of acquiring property, or where a particular custom had sanctioned something different. In such
cases the Roman law naturally was not applied. This force
of the Roman law as a subsidiary rule is indicated by Bracton's additions of remarks like the following:
"htec vera sunt, nisi consuetudo se habeat in contrarium,"
"nisi aliquando de consuetudine in quibusdam partibus
aliud fiat."
(a) Bracton, 10.: ut in Institutis plenius inveniri poterit et in Summa Azonis.
(b) Fleta, III. 2. Cf. Stephen, Commentaries, II. 5, 16 sq.
(101)




102  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
Parallel passages   Without going into details, it is, I think, only
from Bracton
and Azo upon necessary to  give the following  extracts from
occupatio, ac- Bracton and Azo side by side, which the reader
c e s si o, specificatio.      can compare.
BRACTON Lib. II. c. 1.            Azo in Inst. II. 1. f. 244.
~2.                              No. 7 sq.
Jure autem gentium sive natu-    Jure autem  gentium  dominia
rali dominia rerum  adquiruntur  adquiruntur nobis multis modis,
multis modis.  Inprimis per oc-  ut ecce in primis per occupacupationem eorum, quse non sunt  tionem  eorum, quae non sunt in
in bonis alicujus et que nunc sunt  bonis alicujus, ut sunt ferae bestiae,
ipsius regis de jure civili et non  et volucres et pisces et omnia
communia ut olim (c), sicut sunt  animalia, quae in terra, mari et
ferae bestiae, volucres et pisces, et  coelo i.e. in aere nascuntur, sive
omnia animalia quae in terra et in  capiat quis in suo sive in alieno;
mari et in ccelo et in aere nascun-  dominus tamen fundi prohibere
tur, ubicunque capiantur; et cum  poterit ingredientemz venandi aut
capta fuerint, incipiunt esse mea,  occupandi gratia etc......,et qua
quia mea custodia coercentur; et  ratione captum incipit esse meum,
eadem ratione si evaserint custo-  quod mea custodia coercetur, eadiam  meam  et si in naturalem   dem  ratione, nisi evaserit custolibertatem se receperint, desinunt  diam meam et in naturalem liberesse mea et rursus fiunt occu-  tatem  se receperit, desinit esse
pantis.  Recipiunt autem  natu-  meum  et rursus fit occupantis.
ralem  libertatem  tur, cum  vel  Recipit autem naturalem libertaoculos effugerint in aere libero, et  tern, quum vel oculos meos effunon sub captura mea, vel ita sunt  gerit in aere libero non sub cappa
in conspectu meo, ut impossibilis  mea, vel ita sit in conspectu, ut
sit eorum persecutio (d).           difficilis i.e. impossibilis sit ejus
persequutio.
~ 3.
Item  continet occupatio pisca-    Continet igitur occupatio pistionem, venationem et apprehen-  cationem et venationem et appresionem.  Et nec sola persecutio  hensionem.   Sola enim  persefacit rem esse meam.  Nam  etsi  quutio non facit rem  esse meam.
feram  bestiam  ita vulneraverim,  Nam  etsi feram  bestiam  ita vul(c) This remark of Bracton's is not entirely correct, as not all but only certain res nullius, such as thesauri, certain fish (balena, sturgio) and wreckum
maris, belonged to the king.
(d) Cf. Fleta III. 2. 1 1.




CHAP. XII.]   ACQUISITION OF PROPERTY-OCCUPATIO, ETC.  103
BRACTON.                              AZO.
ut capi possit, non tamen  est  neraverim, ut capi possit, non
mea, nisi ear  cepero, immo erit  tamen est mea, nisi cepero, immo
potius occupantis, quia multa acci-  erit posterius occupantis, quia
dere solent, ne capiam.  Item si  multa accidere solent, ne capiam.
in laqueum, quem venandi causa  Et hoc est adeo verum, ut si in
tetendi, aper incidit cum  coer-  laqueum, quem  venandi causa
tione (!), eum exemptum  abstuli, posueram, aper incidit et, quum
erit meus, si in potestatem meam   coheret, exemptum  eum  abstuli,
pervenerit, nisi consuetudo vel  fit meus, si in potestatem  meam
privilegium  se habeat in  con-  pervenerit.   Consueludo tanien
trarium (e)......                  generalis in eo repugnat......
~ 4.
Haec, quae dicta sunt, locum        HMec, quse dicta sunt, locum
habent in animalibus, quae omni  habent in animalibus quae natura
tempore fera permanserunt.  Si  sunt fera.   Si autem  animalia
autem animnalia fera facta fuerint  fera facta fuerint mansueta et ex
mansueta et ex consuetudine eunt  consuetudine eunt et redeunt, voet redeunt, volant et revolant, ut  lant et revolant, ut sunt cervi,
sunt cervi, cygni, pavones et co-  pavones et columbae, alia regula
lumbae, alia regula comprobata  comprobata est, ut eousque nosest, ut eousque nostra intelligan-  tra  intelliguntur, donec habent
tur, quamdiu habuerint animum   animum revertendi. Nam si anirevertendi. Nam si revertendi ani-  mum revertendi desierunt, nostra
mum habere desierint, nostra desi-  desinunt esse. Revertendi autem
nunt esse...... In domesticis vero  animum videntur desinere habere,
tertia regula comprobata est, quod  quum  revertendi consuetudinem
licet conspectum meum effugerint  deseruerunt......  In domesticis
anseres mansueti et gallinae, quo-  enim etc. (as in Bracton).
cunque tamen loco sunt, mei intelliguntur esse, et furtum facit
qui ea animo lucrandi retinuerit......  Item  locum  habet eader
species occupationis in iis, quae
communia sunt, sicut in mari et
litore maris, in lapillis et gemmis
et ceteris in litore maris inventis.
(e) Fleta III. 2. ~ 2. only says generally:-nam etsi feram bestiam ita vulneraverim, ut capi possit, non tamen est mea, nisi ipsam ceperim, sed occupantis. Cf. ~ 13. J. 2. 1.




104  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
BRACTON.                                AZo.
Idem  etiam  in insulis in mari
natis......et in rebus pro derelicto
habitis, nisi consuetudo se habeat
in contrarium propterfisci privilegium (f).
Lib. II. c. 2. ~ 1.. c. f. 244 b. No 10 sq.
Adquiruntur etiam  jure gen-    Jure gentium  adquiritur etiam
tium  rerum  dominia per acces-  dominium  per accessionem, dissionem  discretam  vel secretam,  cretam  vel secretam, concretam
concretam   seu  continuam;  et  sive continuam.  Nam  quse ex
quee ex animalibus dominio tuo  animalibus dominio tuo subjectis
subjectis nata sunt, tibi adqui-  nata sunt, tibi adquiruntur. Prueruntur. Item quod per alluvionem   terea quod per alluvionem  agro
agro tuo flumen adjecit, jure gen-  tuo flumen adjecit, jure gentium
tium tibi adquiritur.  Est autem   tibi adquiritur.  Est autem  allualluvio  latens  incrementum, et  vio incrementum latens.  Per alper alluvionem adjici dicitur, quod  luvionem  adjici videtur, quod ita
ita paullatim  adjicitur, quod in-  paullatim  adjicitur, ut intelligere
telligere non possis, quo momento  non possis, quantum quoquo motemporis id adjiciatur.  Nam  et  mento temporis adjiciatur.  Nam
si tota die infigas intuiturn tuum,  etsi tota die figas intuitunm, imbeimbecillitas visus tam subtilia in-  cillitas visus tam  subtilia increcrementa perpendere non potest,  menta perpendere non potest, ut
ut videri poterit in cucurbita et  in cucurbita et similibus......  Si
similibus. Si autem non sit latens  autem non sit latens incrementum
incrementum immo apparens, con-  etc. (as in Bracton, to the words
trarium erit; ut ecce vis fluminis  "Dabitur tamen"). Utilis tamen
partem aliquem ex tuo praedio de-  rei vendicatio datur priori dotraxit et vicini praedio  appulit,  mino secundum Martinum. Sed
certum  est, tuam  permanere, et  dicimus nos dari actionemr  in
si longiori tempore fundo vicini factum  ut in specificatis duobus.
(f) Cf. Bracton, 120.: Wreckum dici poterit quasi derelictum, ut si quid
(navis levandae causa) a nave projectum fuerit ab aliquo sine animo repetendi
vel retinendi, id proprie dici poterit wreckum, cum res projecta habita sit pro
derelicta. This view consequently does not agree with L. 9. & 8. D. 41. 1. and
L. 21. ~ 1. 2. D. 41. 2. [But cf. L. 43. ~ 11. D. de furtis 47. 2.-Things found
at sea at so great a distance from land that it could not be shown within what
sovereign's dominions they would have come to shore, belonged to the finder,
according to Bracton 120, 120 b. The Roman law thus applied, for there could
be no consuetudo to the contrary.-And see Bracton, 8. 41 b.-Tr.]




CHAP. XII.]   ACQUISITION OF PROPERTY-OCCUPATIO, ETC.  105
BRACTON.                                AZO.
adhaeserit et arbores, quas secue    Cessat autem rei vendicatio, quia
traxerit, radices in eum  fundum   alterius est facta crusta, et alia
egerint, ex eo tempore videntur  dicenda est arbor aliae terrse alifundo vicini adquisitae.  Dabitur  mento.
tamen priori domino utilis vendicatio secundum quosdam.  Sed
cessat rei vendicatio, quia alterius
facta est crusta, et alia dicenda
est arbor alise terrse alimento (g).
~ 3 (h).                             No. 14.
Haec de accessione, quae fit tan-    MHec de accessione, quae fit ditum divina natura operante; est  vina  natura  tantum   operante.
et alia, quae fit tantum  natura hu-  Superest, ut videamus et de acmana operante, quse fit per ad-  cessione, quae fit hulmana natura
junctionem  unius speciei ad al-  tantum  operante; hoc autem  fit
teram ejusdem generis vel diversi  per adjunctionem, que adjunctio
per applumbaturam  vel ferri-  fit per applumbaturam  aut per
liminationem, secundum quod in- ferruminationem. Fit autem apfra legitur, et ibi dicitur, quae pars  plumbatura, cum aliquo mediante
alteri debet accrescere (i).  Si  diversa corpora ejusdem vel non
autem  per applumbaturam, mi-  ejusdem specieijungantur,plumnor cedit majori vel preciosiori,  bo sive aliquo simili......
sed si neutra preciosior, quilibet    Si quidem  per applumbatusuun vendicabit.                     ram, ut puta, minor cedit majori,
vel si nulla sit major, cedat altera alteri preciosiori, vel si neutra sit preciosior, neutra cedat
alteri....
~4.
Vendicabit etiam sibi locum jus      Vendicat sibi etiam  locum jus
accessionis in aedificiis per hu- accessionis in tedificiis per hu(g) In Fleta III. 2. ~ 6. the passage runs thus: opinio quorundam tamen est,
quod utilis rei vendicatio in persona prioris domini observatur, quorundam
vero, quod cessat rei vendicatio quia alterius facta etc. In my opinion the
"quidam" can only mean English lawyers, so that we have here a direct proof
of the application of the Roman law in foro.
(h) In ~ 2, the insula in flumine is discussed.
(i) The " infra" refers to the subsequent citation of the Institutes. Cf. Fleta
III. 2. 1 12.: secundum quod Institutis legitur, ubi dicitur quse pars alteri etc.




106  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
BRACTON.                              Azo.
manse naturse laborem, ut si quis  manse naturse  laborem.   Ecce
in  solo  suo  alienam  materiam   enim cum in suo solo quis alienam
oedificavit, ipse dominus intelligi-  materiam oedificaverit, ipse domitur sedificii, quia omne, quod ins-  nus intelligitur aedificii, quia omne,
deficatur, solo cedit. Nec tamen  quodinedificatur, solocedit. Nec
is, qui materine dominus fuerat,  tamen, is qui materie dominus
dominus esse desinit, nec suum   fuerat, dominus esse desinit, sed
potest eximere, sed pro eo du-  tantisper; neque vendicarepotest
plum consequetur, et si dirutum   eam, nequedeeareadexhibendum
sit wedificium, quod suum fuerat,  agere per legem XII tabul., qua
vendicare poterit, nisi fuerit du-  cavetur, ne quis tignum alienum
plum  consecutus (j).  E  con-  oedibus suis injunctum eximere cotrario si quis de suo in alieno solo gatur; sed duplum prsestet pro eo
aedificaverit mala fide, materiam   per actionem, que dicitur de tigno
prsesumiturdonasse, siautem bona  injuncto. Si autem aliqua causa
fide, solvat dominus soli precium diruptum sit dedificium, poterit
materie et mercedem fabricato-  materie dominus ear vendicare,
rem.  Hoc, quod predictum  est,  si non fuerit duplum  consequulocum habet si wedificium sit im-  tus.  Et ex contrario, qui aedificat
mobile. Si autem mobile, aliud in alieno solo de sua materia, si
erit, ut ecce horreum  frumenta-  quidem mala fide, praesumitur dorium  novum  ex tabulis ligneis  nasse.  Si vero bona fide, habet
factum in praedio Sempronii posi-  doli exceptionem, ne aliter teneatur, non erit Sempronii.            tur restituere, nisi dominus soli
pretium materie solvat et mercedes fabrorum.  Ubi autem quod
aedificatur mobile est, ut ecce horreum frumentarium novum ex tabulis ligneis factum in praedio
Seji positum, non erit Seji......
~ 6 ().                       f. 245 b.  No. 4.
Alia autem accessio erit divina    Fit etiam  accessio divina nanatura et humana co-operante, et  tura et humana co-operante, et
quseritur ex  ea dominium; ut  quaeritur ex ea dominium.  Ut
ecce Titius alienam  plantain in  ecce Titius alienam  plantain in
(j) Fleta, III. 2. 1 12., does not speak of the action for the duplum, but only
says: modicum pretium consequetur. [The text of Fleta appears to me to be
obscure and corrupt.-Tr.]
(k) ~ 5, which is omitted, treats of pictura, scriptura etc.




CHAP. XII.]   ACQUISITION OF PROPERTY-OCCUPATIO, ETC.  107
BRACTON.                             AZO.
solo suo posuit, ipsius erit planta;  suo solo posuit, ipsius erit planta;
et ex diverso, si Titius suam   et ex diverso si Titius suam planplantani in Menii solo posuerat,  tam in Mevii solo posuerit, Mevii
Menii erit planta, si modo utro-  planta erit, si modo utroque casu
que casu  radices egerit, unde  radices egerit. Ante autem quam
versus:                           radices egerit, ejus permanet cujus
Quidquid plantatur, seritur  et fuerat. Et est hoc adeo verum,
vel inedificatur,           ut si vicini arbor ita terram
Omne solo cedit, radices si  Titii presserit, ut in ejus fundo
tamen egit.                radices egerit, Titii effici arboSed antequam radices egerit, per-  rem dicimus; rationem etiam non
manet ejus cujus prius fuerat;  permittere, ut alterius arbores
et hoc est adeo verum, ut si vici-  ex intelliguntur, cujus in fundo
ni arbor ita terrain Titii oppres-  radices egissent.
serit, ut in ejus fundo radices    Et item prope confinium arbor
egerit, Titii erit arbor.  Ratio  posita, si etiam in fundo vicini
enim  non permittit, ut alterius  radices egerit, communis.fit; non
sit quam ejus in cujus fundo ra-  tamen licet eas recidere, nisiforte
dices egerit. Item si in confinio  prwmissa denunciatione.....
arbor posita sit et in vicini fun-   Vel distingue: in radicibus
do radices egerit, communis erit,  sint tales, sine quibus non poterat
nec licebit vicino radices exci-  vivere, an poterat; in primo casu
dere. Et hoc verum est, si arbor  arbor sit communis, in secundo
mea in vicini fundo radices ege-  non, sed agi possit, jus non esse
rit, sine quibus vivere non possit,  ita  radices  immissas  habere.
quod communis esse debeat; si  Qua autem  ratione plantae, quse
autem satis vivere possit sine ra-  terra  coalescunt, solo  cedunt,
dicibus illis, non erit communis.  eadem ratione frumenta quoque,
Qua autem  ratione plantae solo  quse sata sunt, solo cedere intellicedunt, quum  radices egerint, et  guntur......  Quod autem dixi in
aedificia immobilia, eadem ratione  satis et plantatis, dicerem, etsi
cedunt frumenta, quum sata fue-  sola divina natura  plantae vel
rint, et solo coaluerint, sive for-  frumenta solo coaluerunt, ut si
tuito casu cecederint in terram   fortuito casu ceciderunt in tersive non.                         ram......
Lib. II. c. 3. ~ 1.                 1. c. No. 5 sq.
Adquiritur et nobis res per    Adquiritur  etiam   dominium
specificationerm, ut si quis de  per specificationem; qui enim
aliena materia speciem fecerit ali- speciem aliquam de aliena ma



108  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
BRACTON.                               Azo.
quam, dominus erit speciei, qui  teria facit, dominus est speciei, si
fecit.                               bona fide id fecit, non si mala fide.
(Here follows a fuller explanation
of Specification.)
~ 2.
Est et alius modus adquirendi    Est alius modus adquirendi doper confusionem.  Confunduntur  minium, ut per  confusionern.
itaque liquida ut mel et vinum.  Confunduntur autem  liquida, ut
Confunduntur etiam  solida licet  mel et vinum; item  species, ut
cum difficultate magna, ut species,  argentum  et aurum, plumbum  et
sicut aurum, argentum, plumbum   ferrum.
et ferrum, et quod ex iis redigitur    Si igitur materie aliquorum his
erit commune (sive separari pos-  volentibus confundantur, corpus,
sit sive non) inter eos, de quorum   quod ex his redigitur, erit comvoluntatibus corpora sive species  mune, possint vel non possint seconfunduntur.   Si autem  casu  parari; quod si casu fortuito fiat
fortuito fiat confusio et separari  confusio, idem est, si tamen sepanon possunt, idem erit. Si autem   rari non possint......
separari possunt materiae, unus-    Ubi autem  voluntate dominoquisque partem  ponderis et men-  rum  mixtae sunt species, ut frusura habebit, quam habuit in rudi  mentum, fit communicatio, aliter
materia (1).  Si autem  frumen-  non; sed siquis de acervo pro
tum  alicujus mixtum  fuerit cum   modo sui frumenti vendicabit parfrumento  alterius, non erit fru-  tern, et arbitrio judicis continetur,
mentum inter eos commune; sed  ut is eximet quale cujusque fuerit
quilibet de acervo suo vendicabit  frumentum.  Non fit tamen compartem  pro modo sui frumenti.  municatio frumenti, quia singula
Nec  fieri poterit communicatio  corpora manent in sua substanfrumenti, quia  singula  corpora  tia.manent in sua substantia (m).(1) Fleta III. 2. ~ 14-16.
(m) Bracton mentions here the thesauri inventio. As by the English law
treasure-trove belonged to the king, he could not adopt the Roman theory of
acquiring treasure. He however explains thesaurus in the words of L. 31. ~ 1.
D. 41. 1., when speaking of the crime of occultatio thesauri on f. 120:
"est autem  thesaurus quaedam vetus depositio pecunive vel alterius
metalli, cujus non exstat modo memoria, ut jam dominum non habeat."




CHAPTER XIII.
DONATIO.
BRACTON proceeds to speak of the modes of acquisition by
the Civil or Municipal law in chapter 4. of his
second book. Of these donatio occupies the first  tionbythe Civil
place.  He designates it as "magna celebris et   r Municipal
famosa causa adquisitionis."  Donatio, however,
in its then English sense does not correspond to Donatio in the
our Donation.  It signified, at least with refer-  Englishlaw.
ence to immovables, every alienation or gift according to the
forms of the feudal system without reference to its distinctice legal
effect. Under this general idea there was therefore included
not only the conveyance of a fee (cf. note (f), Chapter X.)
but also that of lesser interests. The application of the word
donatio in this sense is etymologically due to the stereotype expressions of ancient use in charters, "dedi, concessi,
donavi," and is explained by the circumstance that, as grants
of feuds derived their essential character mainly from  the relation of mutual faith between lord and vassal, they were looked
upon as acts of PURE LIBERALITY and the services to be rendered
by the tenant were regarded, not in the light of an equivalent, but
as effects of that faith, or as modifications defining the nature of
the gift itself ().  It is therefore very evident that an English
lawyer, when the Roman law came to be better known, could
without fear transfer individual principles of the Roman donation to the different English legal relation of the same
(1) Oportet......quod pecunia vel servitium non interveniat, ne cadat (i.e. donatio) in causam emptionis et venditionis, quia ubi pecunia intervenerit ibi erit
emptio, si autem servitium, ibi erit servitii remuneratio; Bracton 14 b. The
value and importance of the above remark in the text are such that I have
placed it in italics. And see Reeves I. 294 in fin.-Tr.
8                   (109)




110  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
name.  This can indeed be seen in the conformity of Bracton's definition to the Roman law:
" est autem  donatio quvedam  institutio, qume ex mera
liberalitate et voluntate, nullo jure cogente, procedit,
ut rem transferat ad alium."
It is also evident in the divisions which Bracton borrows
from  the' same source, viz., that into donatio inter viCos and
donatio mortis causa, and that into donatio simplex,
"ubi in nullo casu donator velit ad se reverti, quod
dedit,"
and donatio conditionalis vel sub modo:
" si quis ea mente dederit, ut tune demum fiat accipientis, cum aliquid fuerit subsecutumn" (a).
Prohibition ofdo-   More important and more remarkable, hownationes inter ever, is the adoption of the Roman prohibition
conjuges.    concerning donations between spouses. Bracton
lays down as law upon this head:' item  non valent donationes factte inter virum  et
uxorem, non enim vir poterit donare uxori, nec e converso constante matrimonio" (b).
The  following  will explain  this  peculiar phenomenon.
Under the denomination of dower (dos) the English law accorded to the wife after the death of her husband one-third
of his lands and tenements for her lifetime; but only so
much and no more, even when he had expressly given a
larger dower at the time of the marriage.  This last provision was evidently established in the interest of the feudal
heir (c).  Such restraint was however easily avoided by husbands by means of donationes durante matrimonio, which, it
appears, were originally entirely allowable. The abuse of
these latter must however have occurred or been felt shortly
after Glanville's time, since, while we meet with no trace of
a prohibition of donationes inter conjuges in his book, we
(a) Bracton 11. Fleta III. 3. ~ 1. = L. 1. D. de donat. 39. 5.
(b) Bracton 12 b. 29. Fleta III. 3. ~ 12 sq.
(c) Glanville VI. 1.: si vero dotem nominat et plus tertia parte, dos ipsa in
tanta quantitate stare non poterit; amensurabitur enim usque ad tertiani
pai-tei.




CHAP. XIII.]                 DONATIO.                           111
find that they are held to be invalid in a case of 8 Henry III.
(1224), and that the same doctrine is adhered to in later
cases (d). As there is no doubt that this legal principle does
not owe its existence to the Common law, we can only suppose that, when the want of some provision to supply the defect of the national customary law was manifested, the judges'
familiarity with the Roman law led them at once to have
recourse to the Roman prohibition concerning donations between spouses in order to justify a prohibition of donationes
in the English sense (i.e. gifts between the living). That
even at a later period the foreign law was looked upon as
the real source of this prohibition is shown by Fleta, who
gives the Roman law as authority for it:
"quia hoc prohibetur in lege" (i.e. jure Romano) (e).
The extent to which the prohibition was applied, included
also such antenuptial donationes as were made "ob causam
et affectionem  matrimonii," and such donationes as were
made to an extranea persona in order to elude its operation (f).  On the other hand  donationes "post divortium
fact'e" were held valid; and the prohibition was not considered to apply to the so-called dotis constitutio, Dotisconstitutio
since that was identified with  the Roman donatio propter nuptias (Bracton citing in this connection L.
20. C. de don. ante nup. 5. 3.) (g).
Donationes "post factam feloniam" were held to be null
by the English law, and Bracton points out ex- Donationes post
pressly the agreement of this principle with L.  factamfeloniam.
15. D. de don. 39. 5.; it must not however be concluded that
it was derived from the Roman law, for it should undoubt(d) Bracton 29. Et quod hujusmodi donationes non valent, probatur......de
term. S. H. anno regni regis H. 8. Cor. Notting. de Rob. de Wallingham et
Johanna uxore ejus, ubi dicitur, quod non valet talis donatio. Other cases of
15, 17, Henr. III. ibid.
(e) Fleta III.. 3.  12. [Cf. L. 3. { 10.; L. 9. ~ 2.; L. 10.; L. 32. pr. sq.; L.
33. 1 2. D. 24. 1.; L. 10. C. 5. 16.-Tr.]
(f) Bracton 29.
(g) Bracton 29 b. cites a part of the lex: "si igitur......nomine et substantia
nihil distat a dote donatio ante nuptias facta viro, quare non ea simili modo et
contracto matrimonio dabitur? Sancimus igitur" etc.




112  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
edlv be connected  with  the feudal escheat (forisfactura,
escaeta) (h).
But, on the other hand, in the requisites of the English
Requisites of the donatio we meet with many Ronman principles.
EnglishDonatio. For its validity it was above all required that
there should be free will on the part of the donator and
mutual consent on the part of both contractors:
"- non valet donatio, nisi tam dantis quam accipientis concurrat mutuus consensus et voluntas, scilicet
quod donator habeat animum donandi et donatorius animum recipiendi" (i).
The requisite free will might be destroyed by the existence
of violence or compulsion.  The expression vis
Vis.
with Bracton includes both.  Like Paulus, L. 2.
D. quod met. 4. 2., Bracton describes vis as
"majoris rei impetus cui resisti non potest;"
and according to the doctrine of the contemporary school of
civilians he divides it into vis expulsiva, vis compulsiva "quce
aliquando metum  inducit," and other less important kinds,
such as vis perturbativa, inquietativa, ablativa etc.
eMetus is however more closely defined in Azo's
Metus.
words and in the sense of LL. 5. 6. 9. D. 1. c.:
"metus est autem  praesentis vel futuri periculi causa
mentis trepidatio; et praesentem  accipere debemus
meturn  non suspicionem  inferendi ejus, vel cujuslibet
vani et meticulosi hominis, sed talem, qui cadere possit in virum constantem " (j).
It was indifferent whether the  compulsion  was directly
brought to bear upon the individual himself or upon his
relatives or dependents, and this principle, which is clearly
taken from  the Roman law, is expressly shown to be recognized by English judicial authority (k).
(h) Bracton 12 b. 30 b.-convenit lex cum consuetudine Anglicana, F. de don.
L. post contr ubi dicitur quod post contractum capitale crimen, donationes facte
valent, nisi condemnatio subsecuta sit. Selden ad Fletam c. III. 1. has remarked
the difference between this reading and our text.
(i) Bracton 15 b. Fleta III. 7.   3.
(j) Bracton 16 b. 17. 162. Fleta III. 7. ~ 1. Azo in Cod. 2. 20. f. 26 b.
(k) Bracton 16 b.




CHAP. XIII.]                 DONATIO.                           113
As vis or metus destroyed free will, so error prevented
consent.  Here also  our author gives Roman                     Error.
law.  He distinguishes between error in persona,
in re, in numero and quantitate, and in  causa.             Error in
Error in re was always hurtful:
"quia, si donator senserit de una re et donatorius de
alia, non valet donatio propter dissensur."
In  the case of error in numero vel quantitate Error in numero
consent could exist, at least in minus (1):              vel quantitate.
ut si quis decem  dederit, et alius senserit de viginti,
non valet quamvis major numerus in se contineat
minorem, quia uterque in certum  numerum  non consentit......  Sed si aliquis dederit decem  et donatorius
consenserit in quinque, valet donatio, quia ambo consentiunt in minorem numerum."
From  a misapprehension of L. 36. D. de adq. rer. dom. 41. 1.
Bracton seems to have held error circa causam to Error circa cauhave been unimportant generally:                             anim.
"si in corpus, quod traditur, sit consensus, non nocet,
quamnvis circa causam dandi atque recipiendi sit dissentio, ut si pecuniam  numeratam  tibi tradam, et tu
eam quasi traditam accipias, constat ad te proprietatem
transire" (m).
The delivery of the res donata was essentially necessary
to the validity of the donatio, whereby it became             Tradit
Traditio.
perfecta and did not remain merely nuda permissio.  Glanville, indeed, shows that this was the old law  in
England:
" quia id intelligitur, secundum consuetam rejni interpretationem, potius esse nuda promissio quam aliqua vera
promissio vel donatio" (n);
(1) Bracton 15 b. 16.
(m) Bracton 16. [See Pothier h. t. Num. LVIII, text and notes. We should
here recall the remark in Chapter V. pp. 59, 60, that errors in the statement of
Roman law are not to be imputed to ignorance on the part of Bracton. Bracton
here states the English law as it was and is (except as in rare instances it might
possibly be modified by a court of Equity). He here appears to state the English law as it was, without relying upon the Roman texts. —T.]
(n) Glanville, VII. 1.




114  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
and Bracton links the principle that
"non valet donatio, nisi subsequatur traditio,"
partly to the Roman maxim that
"traditionibus et usucaptionibus rerum  dominia transferuntur,"
and partly to the theory of pacta nuda belonging to the old
English law:
"item  oportet, quod donationem  sequatur rei traditio,......alioquin dicetur talis donatio potius nuda promissio, quam  donatio, et ex nuda promissione non nascitur
actio, non magis quam ex nudo pacto" (o).
This traditio has frequently been compared and made parFeudal investi- allel with the investiture of a feud, especially by
ture.    English jurists(2). But in fact it approaches much
nearer to the Roman traditio, from  which it has certainly
borrowed the greater part of its rules. The essential part of
the investiture was the creation and symbolical attestation
of the relation of faith between the feudal lord and vassal,
with which the corporal delivery of the feud or land, which
might follow, had  nothing  in  common  (p).  But we see
nothing whatever of such characteristics in the English traditio; on the contrary, the English law prescribed for such
purposes the solemn performance of homage (q), and considered the only purpose of the traditio to be corporal induction into possession.
Now traditio in this sense (r) was according to Bracton:
"de re corporali propria vel aliena, de persona in
(o) Bracton 16. 39 b. 15 b. Nuda enim donatio et nuda pactio non obligant
aliquem. See also Chapter XVIII.
(p) I. Feud. 25.; II. Feud. 2 sq.; II. Feud. 7. ~ 1.
(q) Upon homage, v. Reeves, History, I. 227 sq.; Phillips, Englische Rechtsgeschichte, II. 208 sq.; Bracton 77. 79.: si......seisina non sequatur, honagium
effectum non habebit; f. 39 b.:-quia non transfertur per homagium res data.
(r) I.e., in relation to the acquisition of property. See also Chapter XI.
(2) See Blackstone's remarks, Cor. II. 311, on the assumed correspondence
of the livery of seisin with the investiture, and Reeves's views concerning the
difference between the feudal law of England and that of other countries; v.
Reeves, I. 44 note b.-Tr.




CHAP. xIII.]                   DONATIO.                              115
personam, de manu propria vel aliena......in  alterius
manum, gratuita translatio."
It presupposed a justa causa:                                    Justacausa.
"item  oportet quod vestita sit traditio et non nuda, scilicet
quod traditionem  prsecedat vera causa vel putativa, qua
transeat dominium" (s) (Cf. Azo 246 b. and L. 31. D.
de adq. rer. dom. 41. 1.).
It gave to the new possessor the same right only  Effectof tradito.
which the former one possessed:
"item  videndum  quid transferat qui tradit, et sciendunm  est quod illud totum  (et aliter quam  ipse teneat,
et seipsum  obligare potest) transferat ad eum  qui accipit, quod est apud eum  qui tradit, ut si quis in fundo
dominium   habuerit, et merum  jus  et proprietatem
feodi, et liberum  tenementum, et usum  fructuum  et
totum, tradendo statim  totum  transfert ad donatorium......  Si autem  nihil omnino habuerit qui tradit, nec
aliquam   seisinam, ad  eum  qui accipit nil transfert,
quia dare et transferre non potest nec tradere, id quod
non  habet.  Cumr   autem  dominium  tradatur, transfertur ad accipientem  tale dominium, quale fuit apud
eum   qui tradidit"......(t) (evidently  from   L. 20. pr.
~ 1. 1. c.).
The  question, which  of several conflicting  claimants of
possession had the better right, is also decided conflictingclaims
according to Roman rules.  If their pretensions   to posession.
(s) Bracton 39 b. 41 b. Fleta III. 15. { 4. Nihil interest, adds Bracton f. 40,
an ipse dominus per se tradat alicui rem suam, an alius voluntate ipsius, sicut
per procuratorem; = L. 9. { 4. D. de adq. rer. dom. 41. 1.; Bracton 40. 43. 44.
(t) Bracton 40 b.  [This passage of Bracton, which, however, is not quite
fully cited in the German edition, and the passage on fol. 161 b. cited by Lord
Mansfield (1 Burrow 109) sustain the following version of Reeves I. 304, 305:
"If the person making livery had only the usufruet, yet he thereby gave his
feoffee a freehold as far as concerned himself and all others who had no right,
though not as against the true owner. If he had nothing, nothing he could
give; yet, if a person was only in possession, let that be as inferior as it might
be, it is clearly laid down by Bracton that he could give a precarious fee and
freehold by livery." The "good sense" attributed by Lord Tenterden (3 Barn.
& Cress. 402) to Lord Mansfield, was in sustaining Bracton's doctrine, viz.,
that the feoffment of a wrongful possessor may convey a fee simple of wrong,
but cannot create such a fee to the true owner's prejudice.-Tr.]




116  BRACTON AND HIS RELATION TO TIIE ROMAN LAW. [PART II.
were  derived  from  the same person (whether he was the
owner or not), preference was given to the oldest traditio
according to the verses:
"Rem domino vel non domino vendente duobus,
In jure est potior traditione prior."
If their claims were derived from different persons, the successor of the true owner was preferred to that of the non
dominus, as in L. 31. ~ 2. in fin. D. de act. emt. et vend. 19.
1.; but if both deduced their rights from  non-owners, the
earliest possessor had the preference, as in the opinion of
Neratius in l.c.:
" si a duobus non dominis fiat donatio et traditio de
eadem  re......duobus......,quantum   ad  donatorios, ille
prefertur, qui prius fuit in seisina" (u).
The subject of donationes gives Bracton occasion to speak
onditional a of the different ways in which the alienation might
Conditional a n d
modified doua- be affected by condition and modification (motiones.     dus) (v).  The modifications of donationes are
considered, and  classified  according  to the four kinds of
innominate contracts of the Roman law:
"do ut des, do ut facias,"
"facio ut des, facio ut facias" (w).
The effect of the modification or "modus" was that, in case
of non-fulfilment thereof; an action ex conventione might, be
brought for its fulfilment or for the interesse.  But the revendication of the thing given, which the Roman law allows, is
only  admitted by Bracton when  a resolutory condition to
that effect had been made, providing for the contingency of
non-fulfilment (x).  Here he raises the question whether the
modification of the donatio affected a third party in posses(u) Bracton 41. Fleta III. 15. ~ 8; where the above verses are also found.
(v) Bracton 18 b., where the following versus memorialis is found:
"Scito, quod ut modus est, si conditio, quia causa."
(w) Bracton, 19, gives the following examples: do tibi Digestum, ut des
mihi Codicem; do tibi Codicem, ut facias mihi scribi Digestum; facio tibi domum, ut des mihi Codicem; facio tibi aulam, ut facias mihi cameram.
(x) Bracton, 19.-ita quod si dedero vel fecero, tu teneris ad dandum vel
faciendum,....sed tamen ut repetere possim, quod dedi, si tu non vis facere, quod
promisisti (must manifestly mean: ut non possim repetere, as in Fleta III. 3.
Q 4.: repetere non tamen poterit quod dedit; likewise Bracton 18,-revocari non




CHAP. XIII.]                    DONATIO.                                117
sion of the thing, and affirms that it did so in the ease in
which, in addition to a mere personal obligation between the
contractors, the thing itself should be held to be burdened
and bound:
"si dicat donator, do tibi talem  rem, ut invenias mihi
necessaria, ex hoc obliqatur...... non ipsa res...... Si autem
sic dicat, quod  invenias mihi necessaria ex re data,
ex  tali obligatione, obligatur tarn  ipsa res, quam   persona" (y).
Conditions "in  futurum   collathe" were alone
Conditions.
regarded as true conditions, for
"conditio in praeteritum  collata infirmat obligationem,
vel omnino non differt" (from  ~ 6. J. 3. 15.).
Of the different kinds of conditions familiar to us Bracton
mentions the following: the conditio potestativa, Their different
e.g. "do  tibi talem   rem, si mihi dederis X,"                    kinds.
which might also be put in potestate alterius, "si Titius voluerit;" the conditio casualis, depending ex insidiis fortunie,
e.g. "si navis ex Asia venierit, si Titius consul factus fuerit;"
the conditio mixta vel disjunctiva, ex parte potestativa, ex parte
casualis; and the conditio impossibilis, cui natura impedimento
fuerit quod existat, e.g., "si eelumr  digito tetigeris," which,
if in the positive, nullified  the whole proceeding, if in  the
negative, made it unconditional (z). Lastly suspensive and resolutory conditions are broadly distinguished in their effects;
by the former "donatio suspenditur, donee conditio existat,"
by the latter "pura est donatio et perfecta, sed resolvitur sub
tali conditione" (aa).
poterit), sed ad hoc tantum agere possum, quod tu facias, nisi aliter convenerit
ab initio. Poterit enim huic donationi sub modo adjici conditio.......si non dederis, vel non feceris....... quod ego repetere possum, quod dedi. Bracton 47 b.
(y) Bracton 47. 18 b. Fleta III. 9. j 25.: Ex conditione apposita quandoque
obligatur persona, quandoque ipsa res.
(z) Bracton 19. 47. 99 b. 100. Si conditio fuerit impossibilis......,non valet
donatio et pro non adjecta habetur conditio. This passage is corrupt in its.text; either the non before adjecta must be expunged, as is indeed the case in
Fleta III. 9. ~ 10.: et pro adjecta habebitur conditio, i.e. it has a nullifying
force; or after et a second non must follow: et non pro non adjecta habetur
conditio, whereby Bracton would deny expressly the Roman doctrine concerning impossible conditions in testaments.
(aa) Bracton 47. 19 b. [Cf. Reeves I. 294, 295.-Tr.]




CHAPTER XIV.
USUCAPIO.
LAND could be acquired per usucaptionem (a), says Bracton,
sine titulo et traditione.  Prescription was unUsucapio.
known to the old English law and also to GlanDifference be- ville.  The latter merely indicates a limitation
tween the law
in Glanvilleand of actions in the provision that the recognitio de
in Bracton. 
nova disseisina must be brought
"infra tempus a domino rege et consilio procerum
ad hoc constitutum" (b).
Bracton, on the contrary, not only makes the rule general
"quod omnes actiones in mundo infra certa tempora
habent limitationem,"
but also connects with it certain legal effects resulting from
long possession; effects, which he expresses in the following
principle occurring in different forms:
"longa possessio parit jus," —"longa possessio sufficit
pro jure" (c).
These were beginnings of a prescription.  The name usuPrescription in  capio and some of its requisites show that it unEngland.   doubtedly owed its existence to Roman legal
ideas, but, as can be seen from  Bracton's short notice, it
never passed beyond the limits of the first crude attempts at
development.  Prescription as a legal institution failed even
later to obtain a firm footing in England (d).
(a) This spelling is always adopted by Bracton.
(b) Glanville XIII. 32. 33.
(c) Bracton 40. 52. 102 b. 373, etc.
(d) At the present day the English law only admits prescription as to certain
incorporeal hereditaments; there is no prescription for corporeal things.
(118)




CHAP. XIV.]                 USUCAPIO.                          119
In Bracton usucapio does not appear closely distinguished
from the limitation of actions, or at least such Bracton's view of
is indicated to be the case by the declaration on    usucapio.
f. 52 that
"tempus est......modus adquirendi possessionis, longa
enim  possessio parit jus possidendi et tollit actionern
vero domino petenti."
I-e considers however the essential element of prescription
to lie in acquisition
"per longam, continuam et pacificam possessionem ex diuturno tempore;...... continuam  dico, ita, quod non sit
interrupta; interrumpi enim  poterit......per denunciationem  et impetrationern  diligentem,......et per talem
interruptionemn  nunquam  adquiret possidens ex tempore liberum  tenementum; pacificam dico, quia si contentiosa fuerit, idem erit quod prius" (f. 51 b. 52.).
The requisite period of time, during which the possession
must have continued, was not definitely fixed, but was left
to the discretion of the judges:
"sed quam longa esse debeat, non definitur a jure, sed
ex discretione justiciariorum."
In some passages, a period of ten years-"post tempaus longissimum scilicet decem annorum," and as to servitutes a "tempus
quod exedit memoriam," are spoken of (e).  Neither a title nor
bona fides was necessary, no regard being paid to the Canon
law principle established in 1216,
"quod nulla valeat praescriptio  absque bona fide"
(c. 20. X. de prfescrip. 2. 26.).
Usucapio, indeed, was even accorded to the disseisor.  This
is however connected with the peculiar operation and effect
which Bracton attributes to it. He considers usucapio to be a
means of acquiring not the right of property, but only rights of
possession (modus adquirendi possessionis; adquiritur possessio
ex tempore etc.) (f). In fact its effect, like that of the rechte
(e) Br. 45 b. 51 b. 52. 53. In one passage f. 422.: longum tempus scilicet X,
XX, XXX annos.
(f) Cf. also the title of chapter 22.: "qualiter adquiritur possessio per usucaptionem."




120  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
Gewere in the Germanic law  (g) was only to strengthen the
protection of a man's possession. Thus, he who had originally
no right of possession obtained a liberum  tenementum  after
a lapse of time per longam possessionem, and this freehold
right of possession was protected by all possessory legal remedies against all who had a better right, even against the
true owner himself on account of his negligence.  The latter
however did not at all lose his jts majus; that could only be
extinguished by the loss of his writ of right, the limitation
for bringing  which  was not indeed fixed  at any precise
number of years (h).
ADDITIONAL NOTE TO CHAPTER XIV.
The following references give the ancient limitations of actions for
the recovery of land.
Glanville XIII. 35.
Stat. Merton 20 Henry III. c. 8.
Bracton 179, 233, 253 b., 373.
Provisions 43 Henry III., Stat. R. f. 8.
Stat. Marlbridge 52 Henry III. c. 9.
The limitation of prilnam transfretationem Domini Regis qui nunc
est in Vasconiam, given in Stat. Merton c. 8., and that mentioned by
Bracton, 179, post ultimum reditum Domini Regis de Britannia in
(g) Cf. O. Stobbe: die Gewere, in Ersch und Gruber: Encyclopedie, 468.
[Upon the rechte Gewere or recta possessio of the German feudal law, v. Senkenberg, Corpus Juris Feudalis p. 65. "Qui possessionem rectam (die rechte
Gewere) habet alicujus feudi, de quo ab alio controversia movetur, potior erit
ad obtinendum, quam qui possessione caret." See also other passages given
in the index under the word Gewere.-Tr.]
(h) Here is the best proof of the relative character of the English rights in
things. He who acquired land bona fide had a right of possession against the
man from whom the acquisition was made, and against all others who had no
better right. Against those who had a better right he acquired a right of possession ex longa possessione, although not having it originally.




CHAP. XIV.]                USUCAPIO.                         121
Angliam, refer to one and the same voyage of Henry III. to the continent. He returned to England on 1 May, 1230, having while absent
been first in Britanny and afterwards in Gascony (see Mathew Paris,
Edit. 1640, pp. 365 to 367). Coke, 2 Inst. 95, and Reeves, I. 344
note, appear to have thought that Bracton and the Statute of Merton
referred to two distinct voyages.  Reeves considers it difficult to
account for the want of agreement between Bracton and the statute.
— Bracton, in speaking of writs of intrusion f. 160 b., remarks:quod post longum tempus agi non poterit de intrusione, scilicet post
decem annos vel duodecim.-Translator.




CHAPTER XV.
SERVITUTES.
BRACTON  discusses the acquisition of res incorpor~ales
in  chapter 23. of his second book.  For our
Res incorporMales.
purposes however the only things of this class
which demand attention are predial servitutes,
Predial servitutes.
as touching  them   some general fundamental
principles are borrowed from the Roman law.
In the English as in the Roman law, a servitus presupposed
a relation existing between two pieces of land:
"pertinent de fundo ad fundum alicujus proprium."
Rights, which were granted to the person only of their possessor, were not held to be servitutes; it was requisite that
"domus domui, rus ruri, fundus fundo subjungatur
non tantum  personae" (a).
The following, for the most part known also to the Roman
ids thf   law, are among the different kinds of servitutes
Kinds thereof.
enumerated by Bracton:
The jus eundi, agendi (iter, via, actus, without however the
technical Roman distinctions), with which the refectio itineris
was connected (b): "ad viam  enim pertinet refectio;"
The jus aquce ducendi (aquaeductus),
"ex fundo alieno et per fundum  alienum  ad fundunl
proprium  ad irrigandum  agrum vel ad alium commodum faciendum,"
which carried with it the right of cleansing the watercourse;
(a) Bracton, 53. 221. Fleta IV. 18. a 1. [F. 233: Item aquae ductus quandoque debetur et datur praediis, et quandoque personis. Quod vero praediis
datur, persona extincta non extinguitur. Quod autem datur personis, cum
personis amittitur, ideo ad nullum transit successorem.-Tr.]
(b) Bracton, 221 b. 232. Fleta IV. 27. ~ 1.
(122)




CHAP. XV.]               SERVITUTES.                      123
that right however being sometimes limited to certain fixed
times "nocturnarum vel diurnarum horarum" (c);
The jus fodiendi aurum  (aurifodina), argentum, lapides,
arenam, cretam etc.
The right of common of pasture (communia pasturce, and
jus pascendi), which Bracton discusses at great length, was
for the most part developed independently of the foreign
law and in accordance with the wants of the country (d).
The acquisition of servitutes, whether with or without the
will of the owner of the servient land, followed Acquisitiontherethe analogy of the acquisition of corporeal things.    of
In the first case, it took place through the owner's voluntary
creation or imposition of the servitus, accompanied by a quasitraditio corresponding to the traditio of a corporeal thing:
"jura siquidem, cum sint incorporalia, videri non poterunt nec tangi et ideo traditionern non patiuntur sicut
res corporales. Oportet igitur ex necessitate, quod in
hujusmodi contrahatur donatio ex affectu contrahentium  et solo animo et voluntate transferendi et accipiendi, et aspectu rei corporalis cui insunt hujusmodi
jura, et sic quasi possidentur exfictione juris;"and
"ita pertinent servitutes alicujps fundo ex constitutione sive ex impositione de voluntate dominorum" (e).
In regard to the requisites of the quasi-traditio, Bracton follows the contemporary Roman jurists, and espeQuasi-traditio.
cially Azo. He however deviates from the latter
in regard to the manner of practically executing the quasitraditio. Azo in Cod. de servit. et aqua 3. 34. f. 59. No. 2.
says:
"constituuntur servitutes omnes per traditionem non
veram......sed quasi traditionem, quoe fit per patientiam
domini, ipso me inducente in possessionem (but the question is, how?)......,et cavet, quod me non impediat
utentem."  L. 1. ~ 2. D. de serv. pred. rust. 8. 3.; L.
3. ~ 2. D. de act. emt. 19. 1.(c) Bracton, 231 b. 233. Fleta IV. 26. & 1.
(d) Bracton, 222-230. Fleta, IV. 18-24.
(e) Bracton 52 b. 53. 221.




124  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
Bracton on the contrary holds corporal propinquity and the
view of the servient land to be sufficient:
"et sufficit pro traditione aspectus loci, in quo hujusmodi jura constituuntur......et affectus possidendi, et ex
sola voluntate et affectu est quis in possessione."
" Res autem incorporales sicut jura, servitutes, cum
loca fuerint determinata, adquiruntur scilicet ex solo
aspectu accipientis vel procuratoris sui et possidendi
voluntate et affectu" (f).
Servitutes might be acquired, without the consent
Prescription.
of the owner of the servient land, by prescription,
"per longum  usum, continuum  et pacificum  et non interruptum;"
"ex longo usu, sine constitutione......ex scientia, negligentia et patientia dominorum;"
but it was requisite that the usus should have taken place
nec vi, nec clam, nec precario, as in the Roman law. A
longus usus in this case was only one,
"qui excedit memoriam  hominum; tale  enim  tempus
sufficit pro jure (g);
a view  derived apparently from  a mistaken generalisation of
L. 3. ~ 4. D. de aqua. 43. 20.  Mutuus dissensus and  non
usus or negligentia are mentioned as causing the extinction
of servitutes. (1)
(f) Bracton 221 b. 225. One passage seems to recall the inducere in possessionem of Azo, viz., f. 225.: donatorius sic per se vel per procuratorem inducatur
in seisinam, quod tenementum videat, in quo communia conceditur, hoc sufficit pro
traditione et statim est in seisina per affectum, et aspectum, vel quasi.-Fleta
also, IV. 18. ~ 1. 2.; 20. 1 7.
(g) Bracton 221. 222 b. 230. Fleta IV. 24. 2 6. Azo 59. No. 1. appears to
be the authority for the immemorial period of prescription: Nam constituunter
servitutes per consuetudinem ternporis, cujus non exstat memoria.
(l) See Appendix; note to Chapter XV.-Tr.




CHAPTER XVI.
THE LAW  OF INHERITANCE.
THE national character of a people impresses itself upon
their law of inheritance, and establishes therein The law of inhersettled forms embodying its animating principles,    itace.
at an earlier period and to a greater extent than in any other
province of the law. It is therefore there that the national
character offers the most enduring resistance to the introduction of foreign elements into the law. Such was the case
in England.  As early as the end of the twelfth Law of inheritcentury the English law of inheritance had be- ance in Glanville's time.
come perfected in a manner so peculiarly national, and its main principles so strongly established, that
there was little ground left upon which the Roman law could
operate with much effect. This was so much the more the
case, because it was just in their systems of inheritance that
the two laws presented the most marked contrast. Instead
of the Roman universal succession according to the will of
the testator or the legal provisions for intestacy, the then
English system divided the deceased's property into two
portions, the one consisting of immovables and the other of
movables.  For the former the succession was always intestate, testaments not being  permitted  for immovables in
accordance with the maxim:
"solus deus heredem  facere potest non homo" (a).
(a) Glanville VII. 1. Bracton 62 b. The latter indeed defines hereditas as
"successio in universum jus, quod defunctus antecessor habuit," but this is
evidently only an explanation of the usual meaning of the Latin term, intended
to be understood in a Roman and not in an English sense. [The texts of Glanville and Bracton certainly negative the existence of the testamentary power
over land. The power must therefore have been extinct before the end of the
reign of Henry II., except in those districts in which it was established upon
local usages. But a general power of devising land seems to have existed
9                   (125)




126  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
While, furthermore, in the Roman law of intestate succession there was no regard paid to sex and priority of birth,
and the nearness of the degrees of kindred was in essentials
decisive, we find that the English law of succession showed
a strong preference for the male line and the eldest born,
and entirely excluded ascendants according to the maxim:
"hereditas nunquam ascendit" (b).
These marked differences did not however prevent some
Influence of the Roman elements from penetrating into and being
RomanW.  adopted in the English law  of inheritance; a
circumstance partially owing to the Church. Such influence,
however, affected but few  essential points, or matters only
indirectly relating to the law of inheritance.  Thus the law
Legitimacy and concerning the legitimacy and bastardy of chilbatardy.   dren  as bearing on their capacity to inherit,
presents an example of the effects of Roman influence.
According to the English law, the legitinmus heres was alone
capable of inheriting.  The legitimus heres was
Logitimus heres. 
regularly only he, who was " ex justis nuptiis et
legitima uxore procreatus."   Children  so begotten  were
called, according to a terminology taken from  Azo, liberi
legitimi ET naturales (c). All not legitimate were comprised
under the name of bastardi, and their legal condition designated as bastardia. Bastards were therefore:
1. The children of concubines, "liberi naturales tantum et
non legitimi, qui procreantur et nati sunt ex concubina;"
2. Those born before actual marriage or beyond a certain time after it;
3. "Liberi nec naturales, nec legitimi, qui nati sunt ex
prohibito coitu," including spurii, adulterini, and those
ex non legitimo matrimonio nati (d).
That the last mentioned were still incapable of inheriting
in Glanville's time without reference to the bona or mala
before the conquest (Hickes Dissert. Epist.) and in the reign of Henry I. (Mad.
Exch. (4to.) I. 110-112 notes I and m).-Tr.]
(b) Glanville VII. 1. Bracton 62 b.: Descendit jus quasi ponderosum quidquid cadens deorsum......,et nunquam ea via reascendit, qua descendit.
(c) Bracton 63. 64. Azo 132 b.
(d) Bracton 64. 265. 418. Azo 132 b. Fleta VI. 1. i 5. 6.




CHAP. XVI.]         THE LAW  OF INHERITANCE.                       127
fides of their parents, is to be concluded from that author's
language ("quod ex legitimo matrimonio non sit natus") (e).
But it appears from  the statement of the law by Children of putaBracton, that before the latter's work was written  tive marriages
the English law had accommodated itself to the ordinances
of the Church, and expressly recognized the legitimacy of the
children of putative marriages in accordance with c. 2. X. qui
filii. 4. 17., even when the bona fides was only unilateral:
"vel ille, qui in facie ecclesipe legitimus reputatur,......
cum  ambo, vir quam  uxor, bonafide conjuncti, credentes se legitime copulates esse, cum sint re vera consanguinitate vel affinitate conjuncti vel alio modo,
quod matrimonium   stare non possit, vel dummodo
alter eorum tantum hoc credat" (f).
This however presumed that the marriage had not been entered into  clandestinely or contra interdictum  ecclesiae as
prohibited in c. 3. X. de clandest. desp. 4. 3. (g).
Upon this latter point the laws of the Church were willingly acceded to and without hesitation adopted, Se  btd
for no national custom  expressly to the contrary
had been developed. On the other hand the Church met with
violent resistance in its attempt to introduce and establish the
legitimatio per subsequens matrimonium, sanctioned by its own and
the Roman law. Notwithstanding its then power, the Church
was unable to supersede the contrary rule of the domestic
law, sustained as it was by the opinion of the country. That
law  regarded the ante matrimonium  natus as a bastard, notwithstanding the subsequent marriage of his parents, and
prohibited him from inheriting their property.
Glanville VII. 15.  "Et quiderm  licet secundum canones
et leges Romanas talis filius sit legitimus heres, tamen
(e) Glanville VII. 13.
(f) Bracton 63. Et ad hoc fa6it decretale cujus verba haec sunt: "cum inter
I. virum et. V. mulierem" (in c. 2. X. 4. 17.: T. mulierem) etc., as in c. 2. 1. c.
(g) Bracton 1. c. Vel si inter tales clandestina fuerunt conjugia ab initio, vel
contracta contra interdictum ecclesioe in gradu prohibito etiam ignoranter, soboles de tali conjunctione suscepta prorsus illegitima est censenda, de parentum
ignorantia nullum habitura subsidium, cum illi taliter contrahendo clandestina
conjugia non exparte sciente (sic! instead of expertes scientise), vel saltem affectatores ignorantiae videantur. Verbatim as in c 3. 1 1. X. 4. 3. Cf. Fleta 1. 14




128 BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
secundumjus et consuetudinem regni nullo modo tanquam
heres in hereditate sustineatur."
Bracton f. 63.: "-ad ea vero, quse pertinent ad regnum, non sunt legitimi, nec heredes judicantur,......
propter consuetudinem regni, quwe se habet in contrarium."
Pope Alexander III. had specially enjoined upon the English Church the maintenance of the Canonical principle in a
decretal addressed to the Bishop of Exeter (c. 6. X. qui fil.
4. 17.), which says:
"tanta vis est matrimonii, ut qui antea sunt geniti,
post contractum matrimonium legitimi habeantur."
The Church believed that an easier introduction for this
principle could be procured, if its courts assumed cognizance of legitimacy as an effect and consequence of marriage in all cases, even when the question arose only incidentally in an action concerning inheritance or property; it
thus endeavored to exclude the king's judges from deciding
whether the issue was bastard or legitimate and to restrict
them  to the mere application of its judgment.  But this
measure served only to increase the violence of the contest.
The secular judges adhering to the principle established by
the custom of the realm, changed the question of law to one
of fact. Instead of demanding of the Curia Christianitatis
whether the issue was bastard or legitimate, they put the
question thus:
" utrum fuerit ille natus ante matrimonium contractum
vel post?",
and reserved to themselves the deduction of the legal consequences depending upon the decision of this matter of fact (h).
This excited the displeasure of the clergy to so great an extent that they refused outright to answer a question so specifically framed, alleging conscientious scruples against doing
so.  The secular judges were however prepared for this contingency.  As the question so put was one of fact, framed
(h) This appears clearly from Glanville VII. 13-15. [Cf. Blackstone, Law
Tracts, Introduction to Charters, lxxxi; Beames's note to Glanville 182; Coke,
Institutes, II. 97. The date of the decretal of Alexander III. was 1160. —Tr.]




CHAP. XVI.]          THE LAW  OF INHERITANCE.                         129
merely to ascertain the time when the issue was born, and
involved nothing relative to the existence or lawfulness of
the marriage itself, they did not hesitate to withdraw it altogether from  the clerical jurisdiction, and have it decided by
ajurata, like other questions of fact (i).  The bishops indeed
endeavored to have the disputed point decided in their favor
at the Parliament of Merton in 1236: but their declaration
that they
"nec voluerunt nec potuerunt sine prejudicio dignitatis ecclesiasticae respondere ad breve super hujusmodi
inquisitione facienda de bastardia,"
and their proposal,
"quod ad hoc consensurn praeberent, quod nati ante
matrinonium  quoad omnia legitimi esse possent, sicut
ille qui post,"
served only to elicit the sharp unanimous answer of the
barons,
"quod noluerunt leges Anglime mutare, quoe usque ad
illud tempus usitatoe fuerunt et approbatte."
It was perhaps due to this resoluteness of the barons, that
the clergy receded from  their position, for in the same year
a compromise was brought about whereby the clerical judges
were to continue to inquire into the question of fact whether
the birth was before or after marriage, and were to  decide
that point alone, without touching the question of legitimacy
or bastardy (j) (1).
(i) Bracton mentions f. 417 a case of 11 Henry III. (1227), in which Martin
de Pateshull, himself a clerk, decided in favor of adopting the jurata. Bracton's own opinion is in its favor.
(j) Bracton 417-419.:-mittatur loquela ad ordinarium loci et fiat inquisitio
per hsec verba, "utrum vid. talis N. natus fuerit ante matrimonium vel post,"
et rescribat ordinarius per eadem verba domino regi sine aliqua cavillatione.
Appeals extra regnum were forbidden and writs of prohibition served to restrain
any excesses of ecclesiastical jurisdiction.  Bracton 404 b. 405.
(1) According to Selden the words "anno eodem" in Bracton, f. 417 line 9,
are an error for "anno regni Henrici filii regis Johannis xviii;" such being the
reading of the record which Bracton appears to have transcribed almost verbatim. Blackstone, therefore, holds that the settlement of the dispute concerning special bastardy must have been at the Parliament of Tewksbury, 18 Henry
III, 1234. (See also Bracton, 96). The proceedings at the Parliament of Merton




130  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
Proof of legiti- The Roman  presumption, pater est quem  rnuptice'iacy.    demonstrant, was valid  in  England, being  thus
expressed:
"legitimus filius est quem  nuptise demonstrant,"
or thus:
"nuptiue probaut filiun esse" (k).
There was however a deviation from  the Roman rule in one
respect, namely, that there was no definite term  fixed for the
continuance of the presumption after a marriage had ceased
to exist, it being left to the decision of each particular case
to  determine it (1).  Only in cases where the husband's paternity was physically  impossible (absence, impotence, sickness etc.), could proof of bastardy be dispensed with as in
L. 6. D. de hiis qui. 1. 6.; but in such cases it was not excluded by the previous recognition of the issue by the alleged
father. On the other hand, where the husband could by any
possibility  be  the  true  father, any  doubt concerning  the
issue's legitimacy was removed by his recognition, either impliedly given by rearing and educating the child as his own,
or expressly made before witnesses (as in Nov. 117. c. 2.) (m).
With  the foregoing should be connected  the proceeding
Supposititioua    for preventing the fraudulent substitution of chilchildren.    dren by an examination, per legales et discretas
(k) Bracton 6. 63. 70. 417 b. et al. Fleta I. 14.   1. Glanville VII. 12 in fin.
(1) Bracton 417 b. Item si inquiratur per quantum tempus natus fuerit post
inhumationem  patris......,ita quod non possit esse veresimile, quod sit filius
talis. 419 b. 70.: computato tempore, scilicet a tempore, quo dicebat se concepisse, et etiam a morte viri usque ad diem pariendi.
(m) Bracton 6. 63 b. Si autem violenta praesumtio se faciat in contrarium,......
ut ecce maritus probetur propter aliquam infirmitatem vel frigiditatem vel aliam
impotentiam  coeundi per multum  tempus non concubuisse cum uxore, vel si
probetur, quod extra regnum.....per biennium et ultra longe extiterit, et quod
vehementur praesumi possit, quod ad uxorem accessum  habere non potuit, et
cum redierit, pregnantem  invenerit, vel parvum  habentum  anniculum, sive
talem advocaverit et nutrierit, vel non......,erit talis filius a successione repellendus. Bracton 5. 278. 418.
must therefore be considered an unsuccessful attempt on the part of the bishops
to reopen the question. Blackstone, Introduction to Charters, lxxxiii; Selden,
Titles of Honor, B. 2. c. 5. ~ 23.  In regard to the exceptional effect of the
Canon law rule, in the case of bastard eigne and mulier puisne, see Blackstone
Com. II. 248 and Coke upon Littleton 244.-Tr.




CHAP. XVI.]          THE LAW  OF INHERITANCE.                           131
mulieres, of the woman alleged to be pregnant, and by placing
her person in custody. The legal provisions upon this subject bear so strong a resemblance to the pretorian edict de
inspiciendo ventre D. 25. 4, that they must be regarded as
being taken from it (n).
The order of succession according to the English law was
influenced by the Roman in one point only. In Right of represenmy opinion the gradually established recognition   tation:- uncle
of the  so-called  right of representation  in  the 
succession of descendants must be referred to legal views derived from the Roman law and from the Church. Upon this
turned the important disputed question, whether the nephew
or the uncle should inherit in the case where the deceased's
surviving issue at the time of his death consisted of a younger
son and of a grandson by an elder son who had died before
him (o).
In  Glanville's time while  some considered  the  uncle to
be the true heir, in consequence of the elder brother never
having lived to have the inheritance cast upon him, others
regarded the nephew as such,
"cum  ille ex filio progenito exierit et de corpore suo
extiterit heres in totum jus, quod pater suns, si adhuc
viveret, haberet."
Glanville himself took the latter view, at least in the case
where the elder son had not been provided for (forisfamiliatus)
by his father (p).  He little dreamed of the practical import(n) Br. 69-71.  The Writ runs: Rex Vicecom. salutem. Praecipimus tibi
quod omni dilatione et occasione praeposita, venire facias coram te......A., quae
fuit uxor B., et quae se facit pregnantem, et......facias eam videri per legales
et discretas mulieres, per quas melius veritas sciri poterit, et diligenter tractari a mulieribus praedictis per ubera et per ventrem, modis omnibus, quibus
inde melior possit certiorari, utrum pregnans sit nec ne; et si......mulieres viderint, quod pregnans sit, vel inde dubitaverint, tune illam poni facias in castro
nostro tali, et ita, quod nulla domicella, quae pregnans sit vel alia, de qua
suspicio haberi possit alicujus falsitatis faciende sit cum ea, et in castro illo
moram faciat, quousque de partu suo constare possit.
(o) The question might also arise in regard to the inheritance of an eldest
brother. [Upon the question whether the uncle or nephew was the true heir,
there are cases of interest in Rot. Cur. Reg. I. pp. ix, 358, 359; II. 48, 49, 51,
189.-Tr.]
(p) Glanville VII. 3. Ita dico, si pater suus non fuerit ab avo suo forisfamiliatus.




132  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
ance which this question would soon assume in the contest
for the throne between King John and his nephew  Arthur
of Brittany, in which the former was not, for this reason,
looked upon as the mere usurper he has since usually been
considered (q). While the case of the Crown actually resulted in the uncle's obtaining the throne, the legal judgment of the nation and that of the judges, who were familiar
with the Roman law, must have strongly leaned towards the
better right of the nephew, for at least as early as Bracton's
time the right of representation in the person of the grandson was recognized, and has never been  doubted since (r).
Evidently  however from  a fear of putting in question the
king's title to the crown, the rejected doctrine was so far
adopted that, when the uncle had once become seized of the
inheritance, the  nephew  could  not make  good  his better
title by way of action.   For, notwithstanding  the latter's
being recognized as the true heir de jure, the uncle was protected  in his seisin, as in a bonorum  possessio, against the
nephew, on account of the precedent in what was called the
king's case (s).
The communio  existing between  coheirs (coheredes, parPartition.    ticipes) was dissolved by a proceeding in partition (i), which was copied without doubt fiom
the Roman judicium  familite herciscundse.  As in the latter,
(q) John was the youngest son of Henry II.; Geoffrey of Brittany, Arthur's
father, and John's elder brother, died before his father, and therefore before
Richard I., whose death placed the title to the crown in dispute. King John's
title appears not to have been disputed in England. [See Reeves I. 42. —Tr.]
(r) Bracton 64 b. [The reference on p. 28 to this note should be to the one
following.-Tr. ]
(s) Br. 267 b.: cum autem avunculus prius fuerit inpossessione hereditatis......et
nepos petat versus eum de seisina patris....... locum non habebit assisa, sed tantur breve de recto per quod, si compertum fuerit, quod nepos heres fuerit propinquior et justior propter juris praerogativam, tamen nihil capiat per judicium
propter casum regis, qui hucisque se habuit in contrarium, et remanebit semper judicium in suspenso. 268.:-et sic remanebit avunculus semper in seisina, quia
judicium remanebit in suspenso propter casum regis super jure. 327 b.:-quamdiu
casus regis duraverit, nunquam ad judicium procedetur. It is remarkable that
even English legal historical writers have not observed this peculiarity. Reeves,
I. 310, is entirely inaccurate. [Upon the death of Arthur's sister Eleanor, both
titles to the crown were united in Henry III., and there ceased to be any reason
of state for favoring the uncle. Eleanor died in 1241. See ante p. 28.-Tr.]
(t) Parceners, as a rule, were females.




CHAP. XVI.]        THE LAW  OF INHERITANCE.                   133
the actio was mixta, and "uterque actor, uterque reus."  As
there, the respective rights of co-inheritance must be previously settled (u).  The partition was made in the following
manner.  An appraisement was first made, and then a division into the proper number of equal shares. These latter
were in general distributed by lot, and the assignatio parlumn,
corresponding to the adjudicatio of the Roman proceeding,
was pronounced in the Curia Regis (v).
So much for the law of inheritance and intestate succession.-With  testaments relating to  movables
Testaments.
Bracton had no occasion to deal closely, for testamentary causes were left to the cognizance of the courts
Christian.  The form of making testaments was far from following the strict rules of the Roman law, as we learn from
the concurrent though scant remarks of Glanville, Bracton
and Fleta.   Thus, evidently from  a consideration of the
Canon law c. 10. 11. X. de test. 3. 26., it sufficed to have
but two witnesses:
"ad minus coram duobus......viris legalibus et honestis, clericis vel laicis ad hoc specialiter conmocatis" (w).
On the other hand Bracton regards the donatio mortis causa
as a distinct legal institution, belonging to the Donatio mortis
jurisdiction  of the lay courts; a doctrine un-           cua.
doubtedly taken from  the Roman law  (x).  Bracton, like
ITlpian in L. 2. D. de don. mort. caus. 39. 6., divides this
donation into three kinds:
"una, cum  quis nullo presentis mortis periculi metu
conterritus, sed sola cogitatione mortalitatis donat; alia,
cum  quis imminente periculo mortis commotus ita donat,
ut statimfiat accipientis, tertia, si quis commotus periculo
non dat, ut statim fiat accipientis, sed tune demum, cum
morsfuerit insecuta."
(u) Bracton 71 b.-77.
(v) Bracton 75 b. Fortunam faciunt judicem, ut quilibet habeat partem
illam, qute per sortem ei accideret; evidently after L. 3. C. de caduc. 6. 43.
(w) Bracton 61. In one passage (354 b.) the seven witnesses are mentioned.
Cf. Glanville VII. 6.; Fleta II. 57. ~ 12.
(x) Bracton 60. Fleta II. 57. ~ 1., identifies donationes mortis causa with
testaments. Contrahitur etiam obligatio ex testamento, quoe morte confirmatur.




134 BRACTON AND HIS RELATION TO TIIE ROMAN LAW. [PART II.
In accordance with LL. 2.-6. 1. c. other perils besides that
of immediate death might be motives for the donation:
"mortis causa donare licet, non tantum infirmme valitudinis causa, sed periculi......ab hoste vel a predonibus, vel ob hominis potentis crudelitatem vel odium,
aut causa navigationis vel peregrinationis imminente,
aut si quis fuerit per insidiosa loca iturus, hbec enim
omnia instans periculum demonstrant."
The failure of the donation if the donee died first, and its
revocation, when the danger of the donor's death had passed
away, follow as a matter of course:
"in se tacitam  habent conditionem, ut hujusmodi
donationes revocentur, si aegrotus convaluerit...... Si
autem sic donetur mortis causa, ut nullo casu revocetur, causa donandi magis est quam mortis causa donatio" (from L. 27. D. de mortis causa don. 39. 6.).
Finally, the rule in L. 26. D. hoc tit. was also adopted, for
"si duo, qui sibi invicem  mortis causa donaverint,
pariter decesserint, neutrius heres repetet, quia neuter
alterum supervixit" (y).
(y) Bracton 60. Fleta 1. c.




CHAPTER XVII.
DOWER.
IT has already been intimated that "dos secundumn consuetudineer Anglicanam" was not the Roman institu- Dos in the En^g
tion, and that the English dos should rather be lish and in the
compared to the doarium  (Witthum) of the Ger-   Romanlaw.
manic legal authorities (a).  But as in England dower was
"quod liber homo dat sponsSe suae ad ostium  ecclesike
propter nuptias futuras et onus matrimonii,"
the  comparison with  the  Roman  donatio  propter nuptias
readily suggested itself; and as the principles of the Roman
dos had  an  application  to  the  donatio  propter nuptias, it
may be explained  how, notwithstanding  the difference between the Roman and the English dotal law, individual technical terms were transferred from  the former to  Dos i Bracton
the latter.  On the subject of dos, there are more    andFleta.
Romanisms to be found in Fleta than even in Bracton. Both
distinguish between dos profectitia,
"quae datur a patre vel matre vel alio parente in ipso
contractu pro filia maritanda,"
and dos adventitia,
"quse ab aliis datur, quam  a patre, sive parens sit sive
extraneus;
(a) Glanville VI. 1. Dos duobus modis dicitur, dos vulgariter etc. VII. 1.
In alia acceptione accipitur dos secundum leges Romanas. Bracton 92 sq. Dos
is to be understood in the English sense in the decretal c. 6. X. de don. inter.
vir. 4. 20, which says in the conclusion by way of explanation: "Illud te nolumus ignorare, quod uxor dare dicitur viro dotem, vir autem uxori donationem
facere propter nuptias secundum legitimas sanctiones." [This decretal was, it
appears, addressed to Scotland and relates to the Scotch terce, which corresponds to'the English dower. Upon the subject of dower in Bracton see Long,
99-104.-Tr.]
(135)




136  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
a division clearly inappropriate for the English dos. (1) They
also mention a "dos parapherna,"
"quae sit juxta vel proeter dotenl" (b) (2).
Fleta furthermore adopts the distinction between dos cstimata
and incestimata, in the first of which
"tam  lucrum quam  damnum  pertinet ad maritum
sicut ad emptorem."
Fleta even mentions the period of one year for the restitution of a dos consisting of movables (vestimentis, jocalibus,
pecunia) where  the  marriage  had  been  dissolved, a thing
which  though  obtaining  in  the  Roman  law  could  hardly
have been practically applicable in England. (c).
In  suing for dower the validity of the marriage might be
called in question, e.g. when two or more women
Actio dotis.
made claim each to be the true wife (d). The
decision of this incidental question was assigned to the courts
Christian, and the principal action was in the mean time suspended.  In  such  cases the clerical courts do not seem  to
have been  entirely clear as to  how  they should proceed in
making  their inquisition, for we find in Bracton  a curious
account of their obtaining advice from the king's judges in
regard to the practical course which they should adopt (e).
(b) Bracton 92 b.  Fleta V. 23. 1 4. "alia perfectiva (sic!); alia adventiva".
Q 6. Habet autem paraferna privilegium ad instar dotis.
(c) Fleta 1. c. ~ 9. [Cf. L. un. ~ 7. C. de rei ux. act. 5. 13.-Tr.]
(d) Bracton, 302, 306, 308, uses the expressions possessio viri, seisita esse de
viro, in this connection.  These expressions are manifestly of Canon law
origin, and suffice to show that a possession of marriage formed part of the doctrine of Canonists in that day.  Cf. Bruns, R. d. Besitzes, 191 sq. [Cf. Rotteck
& Welcker, Staats-Lexicon, Ed. 3. Vol. 9. p. 7.-Tri.]
(e) Bracton 302 b. 307. instances such a consultatio: Rex tali episcopo sal.
(1) The context of these passages is as follows: et dotis species sunt duae,
alia profectitia, alia adventitia. Profectitia dici poterit, etc......,et terra sic data
dicipoterit maritagium, et patrimonium mulieris...... tem adventitia dos dici poterit maritagium.-See Reeves, I. 297.- Tr.
(2) Concerning dos profectiva v. L. 5. D. de jure dotium 23. 3.; dos adventitia, v. Pothier, Pandectae, Lib. 23. Tit. 3. Num. VII; parapherna, v. ibid.
Num. LIV, and L. 9. ~ 2. D. 1. c. By the law of Normandy the wife had a
paraphernal; "les biens paraphernaux s'entendent des meubles servant a
l'usage de la femme, comme lits, robes, linges;" v. Pannier, Ruines de la
Coutume de Normandie, 80, 81. —Tr.




CHAP. XVII.]                       DOWER.                                 137
Cum inter A. petentem et B. tenentem-coram Justic. nostris de banco contentio
dotis verteretur et......ex parte B. eidem A. objiceretur, quod tali viro non fuisset
legitimo matrimonio copulata, et tandem ad episc. Wigorn......esset demandata
inquisitio facienda; idem episc. nos consuluit qualiter in dicta inquis. facienda
esset procedendum. Cujus consultationi secundum consuetudinem regni Anglite sic
duximus respondendum,.......quod convocatis, convocandis.......sic procedat,
quod inprimis denunciare faciat tenenti, quod sit ad certum diem certo loco
dictura contra matrimonia si voluerit, et sive tune venerit sive non, testes,
quos mulier......produxerit, admittat, ob contumaciam mulieris alterius, qum
non venerit. Et veritate absque juris magna solennitate quasi summatim inquisita,
mandatur inquisitio domino regi etc.  The conclusion is remarkable for its
intimation of the proceeding's being summary. [See the translator's addition
to note (f) p. 43.-Tr.]




CHAPTER XVIII.
THE LAW OF OBLIGATIONS.
BRACTON goes only superficially into the law of obligations.
Law of obliga- The extent of his commentary upon it, however,
tions.    is in corresponding proportion to the limited importance, which the English in his time still attributed to
movable property and its relation to the law. The little which
he gives upon this head is found in connection with his commentary upon actions in the first tract of the third book; a
juxtaposition, which he justifies by adopting Azo's explanation that the relation between obligations and actions was
that of mothers and daughters (a). Eimptio and locatio alone
have obtained special places in his work, those being assigned
to them under the head of causie adquisitionis rerum dominii.
Definition of obli-   Bracton's notion of an obligation is derived
gatio.    from  pr. J. de obligationibus 3. 13, and L. 3. pr.
D. de A. and 0. 44. 7.; he says
"est enim  obligatio juris vinculum, quo necessitate
adstringimur ad aliquid dandum  vel faciendum."
The four sources which he assigns for the origin of obligaOrigin of obliga- tions are also those of the Roman law, viz., Contions.    tract, qutasi-Contract, Delict, and qu^s,-Delict (b).
The old English law did not give binding force and legal
Contracts.   validity to the mere intention  of contracting,
Old English law however it might be expressed. It only prothereof.   tected conventions, and actions were only maintainable upon them, when they were either partially per(a) Bracton 99. Videndum est, unde actio oriatur? et sciendum est, quod
ex obligationibus prsecedentibus, tanquam a matrefilia. Obligatio autem, quae
est mater actionis etc. Cf. Azo f. 254 b. No. 7.: de obligationibus, tanquani
matribus earum (actionum).
(b) Bracton ibid. Est enim obligatio, quasi contra ligatio, et quatuor habet
species, quibus contrahitur.
(138)




CHAP. XVIII.]    THE LAW OF OBLIGATIONS.               139
formed, or were made in solemn form, i.e. by a written charter
under seal, carta sigillata, cyrographum (for chirographum).
All other conventions were called pacta nuda, and the king's
judges could not take cognizance of their violation or nonfulfilment, according to the principle, evidently borrowed
from the Roman law, that
"ex nudo pacto non oritur actio,"
although the courts Christian might enforce them by inflicting penance
"propter fidei lwesionem vel transgressionem."
For, says Glanville
" privatas conventiones non solet Curia domini Regis
tueri, et de talibus contractibus......se non intromittit
Curia" (c).
Such ideas had many points of contact with the Roman
law, and its distinction between actionable and Comparison with
non-actionable conventions. Especially did the  theRoman law.
English lawyer find pertinent analogies for his peculiar ideas
and views in the doctrine of stipulations, which the then Civilian school taught as still practically applicable law.  The
peculiar characteristics of stipulations, their formality, their
being clothed in solemn fixed words, the actual presence of
the contractors regularly requisite, the strong legal protection afforded by the actions maintainable upon them, all harmonized with the provisions of the English law concerning
formal conventions. If we also bear in mind the conformity
between writing and stipulation, which at that period already
existed in the Civil law, we can readily understand how the
principles of the Roman stipulation easily came to be thought
applicable by English lawyers. When therefore Bracton
and Fleta, in discussing the law of contracts, treat of stipulations at great length, it does not indeed follow that the
phrases, "dabis? dabo," "promittis? promitto," mentioned
by them, were legal forms used in the actual business of life;
but what they say does show that they found general rules in
the doctrine of stipulations upon which they might reason
with applicability to the solemn English conventions upon
(c) Glanville X. 18.; X. 8. 12. [Cf. Reeves I. 159-169. — Tr.




140  BRACTONAND HIS RELATION TO THE ROMAN LAW. [PART II.
which actions were maintainable, and that they have therefore reproduced them (d).
In the English law  there was thus no room  for the Roman
Pacta nuda; pac- law distinction of contractus and pacta. That
ta vestita.    circumstance, however, neither prevented  the
English lawyers from  adopting  a distinction  of pacta nuda
and pacta vestita, derived from  the same source, for the purpose of discriminating between the non-actionable and the
actionable conventions of their own law (1), nor deterred
them  from  borrowing from  the then Civilian school its list
of the different vestimenta pactorum.  The vestimenta pactorum   are enumerated  by  Bracton  in  the  following  versus
memoriales:
"Re, verbis, scripto, consensu, traditione
Junctura, vestes sumere pacta solent" (e).
The most striking of these are traditio andjunectra.  Traditio
is here, however, only another expression for Azo's rei interventus:
"ut in contractibus innominatis (says Azo), qui ab
initio nullam  dant actioner, sed re postea interveniente et
tradita, competit actio" (f).
Junctura is thus described:
"ut si plura pacta de eadem  re deducantur in stipulationem......,si in continenti adjiciantur......,insunt contractibus et dant legem  eisdem" (g),
and corresponds to the cohcerentia contractunm, found in Azo
referring to pacta adjecta (h).
(d) The parallelism of stipulation and writing is especially referred to in the
following passage, Bracton 100.: —et quodper scripturamfieripossit stipulatio......
videtur, quia si scriptum  fuerit in instrumento aliquem promisisse, perinde
habetur, ac si interrogatione prsecedente responsum sit.  The English donatio is
also often compared to stipulation; e.g. f. 15 b.: item  oportet, quod certa
verba interveniant donationi congrua, sicut et stipulationi.
(e) Bracton 16 b.
(f) Azo in Cod. de pact. f. 17. No. 5.
(g) Bracton 16 b. 100 b.; cf. Fleta II. 60. ~ 2.
(h) Azo in Cod. de pact. f. 17. n. 3 [where Azo says: vestitur aut pactus sex
modis, re, verbis, consensu, litteris, contractus coherentia, rei interventu.-Tr.]
(1) Cf. Spence, 1. 186 note f —Tr.




CHAP. XVIII.]       THE LAW  OF OBLIGATIONS.                     141
The  place  of Verbal obligations  (stipulations) is thus
clearly indicated: verba were words reduced to Verbal obligawriting.   The  Real contracts of the  Roman   tions (stipulalaw very naturally found an easy and early reReal contracts.
ception  into  a law, which had  not developed
rules of its own in such matters.  Even in Glanville we find
that the commentary upon "causa mutui, commodati, pignoris," is chiefly made up of Roman principles, while Bracton's
exposition of this class of contracts is nothing but an almost
literal extract from  the corresponding titles of the Institutes.
As what Bracton says concerning stipulations is
also copied from  the same source, it will suffice, Etractson reinstead  of any farther discussion  of either of  ting to stipula-...             >.  i./.               tions and Real
these divisions of obligations, to  compare the   contracts.
following extracts with the Roman texts.
BRACTON Lib. III. tract. 1. c. 2.
~ 1. He autem  contrahitur obligatio veluti in mutui datione,
quoe consistit in rebus, quse pondere, nutnero, mensura sunt;
pondere, sicut in rebus que ponderantur, numero, sicut pecunia numerata......,mensura, sicut in oleo, vino, frumento.
Qume res autem  in appendendo, nunerando et metiendo in
hoc dantur, ut statim  fiant accipientium, quia mutuum  proprie dicitur id, quod ex meo tuum  fit (i) (=  pr. J. 3. 14.)......
Hiis autem  (j), cui res aliqua utenda datur, re obligatur, quse
commodata est; sed magna differentia est inter mutuum  et
commodatum, quia is, qui rem  commodatam  accepit, ad ipsam  restituendam  tenetur vel ejus precium, si forte incendio,
ruina, naufragio aut latronum vel hostium incursu, consumpta
fuerit vel deperdita, substracta vel ablata (k).  Et qui rem
(i) Br. 99. Fleta II 56. ~ 5. Glanville X. 3.
(j) Evidently instead of Is autem, as also in Fleta 1. c.
(k) Also in Fleta II. 56.   5. This passage does not appear to agree with
what is said below concerning liability for vis major. We must either consider
nisi culpa intervenerit to be understood, or else hold it to be an echo of the older
English law, which held the commodatarius liable for casus. Glanville X. 13.:
Si autem res interierit vel perdita fuerit quocunque modo in tua custodia, om10




142  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
utendam  accepit, non sufficit ad rei custodiam, quod talem
diligentiam  adhibeat, qualem  suis rebus propriis adhibere
solet, si alius ear   diligentius potuit custodire.  Ad vim
autem  majorem  vel casus fortuitos non tenetur quis, nisi
culpa  sua intervenerit, ut si rem  sibi commodatam  domi
secum detulerit cum peregre profectus fuerit et illam  incursu
hostium  vel predonum, vel naufragio amiserit, non est dubium, quin ad rei restitutionem  teneatur (- ~ 2. J. 3. 14.)......
Is apud quem  res depoitur, re obligatur, et de ea re, quam  accepit, restituenda tenetur et etiam  ad id, si quid in re deposita dolo commiserit.  Culpse autem  nomine non tenetur, sc.
desidiae vel negligentioe, quia, qui negligenti amico rem  custodiendam  tradit, sibi ipsi et proprie fatuitati hoc debet imputare (=  ~ 3. J. 1. c.).  Creditor, qui pigmtus accepit, re obligatur, et ad illam  restituendam  tenetur; et cum hujusmodi res
in pignus data sit utriusque gratia sc. debitoris, quo magis
pecunia ei crederetur, et creditoris, quo magis ei in tuto sit
creditum, sufficit ad illius rei custodian  diligentiam  exactam
adhibere, quam  si proestiterit et rem  casu amiserit, securus
esse possit, nec impedietur creditum  petere (= ~ 4. J. 1. c ) (1).
~ 2. Verbis contrahitur obligatio per stiplationem.  Est enim
stipulatio qusedam verborum  conceptio, quoe consistit ex interrogatione et responsione, ut si dicatur: promittis? promitto; dabis?  dabo; fidejubes?  fidejubeo (=  pr. ~ 1. J. 3.
15.; L. 5. ~ 1. D. de verb. obl. 45. 1.).  Et omnis talis stipulatio aut fit pure, aut in diem, aut sub conditione......  Sed
si dies adjiciatur, quo solvi debeat, statim debetur, sed peti
non poterit ante diem, nec etiam eo die, quia totus is dies relinquitur arbitrio solventis, nec vero certum  erit, eo die solutum non esse, priusquarn dies praeterierit; nec eodein modo
recte petit quis, si quis hoc anno vel mense dare stipulatus
est, nisi omnibus partibus preteritis anni vel mensis (=  ~ 2.
J. 1. c.) (m).
nino teneris ad rationabile pretium mihi restituendum. Glanville here asks
the question: sed sub qua vel cujus probatione probandum? From this and
other doubtful points in Glanville it can be seen how the Roman law easily came
to be adopted in these matters. [See Appendix; note to Chapter XVIII.-Tr.]
(1) Fleta II. 56. { 6-9.
(m) Bracton speaks of the computation of time, leap year etc. f. 264. 359. 360.




CHAP. XVIII.]        THE LAW  OF OBLIGATIONS.                         143
~~ 3 and 4. reproduce ~~ 4, 6 and 7. J. 3. 15.
~ 5. Item  loca deducuntur in stipulationem, ut si dicas existens Oxomii, hodie Londomii (lare spondes?  talis stipulatio  erit
inutilis, nisi ternpus, quo fieri possit, adjiciatur (in  stipulatione), quia omnino erit impossibile (=  ~ 5. J. 1. c.), ac si quis
rem  promitteret, quT in rerum  natura non esset......vel si rem
sacram  vel publicam, qute non  est in  alicujus bonis.  Item
si quis stipulatus  fuerit, qui alium   daturum  vel facturunm
promiserit, quam   eum   qui in  potestate  sua extiterit, vel
si quis ad ea, quqe interrogatus fuerit, non responderit, nec
secundum  quod interrogatus fuerit......,vel si unus pure, et
alius sub  conditione, stipulatio  non valebit.   Item  erit inutilis, si quis ita stipulatus fuerit: si navis venerit de Asia,
hodie dare spondes?  quia prepostere concepta est; tamen
licet prtepostera  fuerit, non  erit rejicienda (-  ~~ 1. 2. 14.
J. 3. 19.).
~~ 6. and 7. correspond to J. 3. 18. and ~ 18. J. 3. 19. (n).
~ 8. In fine autem  videndum, quis non possit stipulari nec
promittere......,et sciendum, quod mutus nec stipulari potest,
nec promittere, cur  loqui non possit, nec verba stipulationi
congruentia proferre; quod quidem  in surdo exceptum  est (sic!
evidently for receptum), quia is, qui stipulatur verba promittentis, et is, qui promittit, verba stipulantis audire oportet,
nisi sit, qui dicat, quod hoc facere possunt per nutus et per
scripturam  (=  ~ 7. J. 3. 19.) (o).
What Bracton says of the so-called "Literal" obligation
(obligatio per scripturam), is nearly connected with  Obligatio per
stipulation.  The latter was, indeed, in England               criptnram.
obligatio per scripturam. He says
(n) Fleta II. 56. {2 9-17.
(o) We see how here too the Roman law was remodelled for practical use.
The same occurs in regard to 1 19. J. 3. 19. concerning stipulations in favor of
a third person, which Bracton reproduces as follows: Inventse sunt hujusmodi
stipulationes......ut unusquisque habeat et sibi adquirat, quod sua interest, si
contra ea agatur. quse in stipulationerm deducuntur.  Et si res in stipulatione
deducta alii detur nihilominus intererit stipulatoris, quia ille qui promisit tenebitur ad
interesse, vel adpcenam, si poena fuerit in stipulationem deducta; v. also Fleta
II. 56. ~ 20.-The stipulation of the poena was not therefore considered absolutely necessary.




144  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
"per scripturam  obligatur quis, ut si quis scripserit
alicui si debere, sive pecunia numerata sit, sive non,
obligatur ex scriptura, nec habebit exceptionetm non numeratce pecunice contra scripturam;"
he therefore expressly rejects the Roman law in regard to
written  acknowledgments of indebtment.  It is to  be remarked that the principle which excluded the exceptio non
numeratme pecunia  applied not merely to the obligatio per
scripturam, but to every other written and sealed contract (p).
The Roman Consensnal contracts were least of all suited
Consensual con- to the English law of contracts, since there was
tracts.   no outward difference between them  and English nuda pacta.  It is true that Bracton expressly mentions
them  (q), naming emptio, locatio, societas, mandatum, but
discussing only the two first at any length, and not under the
head of obligations.  These contracts seem, however, to be
referred to in this connection rather for the theoretical completeness  of the  system  of obligations  than  for practical
reasons.  This  is confirmed  by what Bracton
Emptio.
says concerning emptio, by which it appears that
that contract was not at all a true Consensual contract in the
English law.  For, the emptio was not perfected,
" cum de pretio convenerit inter contrahentes,"
unless, at the same time either
"arrarum nomine (a venditore) aliquid receptum  fuerit,
quia, quod arrarum  nomine datum, est argumentum
emptionis et venditionis contractae,"
or,
"pretium solutum fuerit velejus pars et traditio subsequuta,"
or, in the case the contract was concluded in writing,
"(scriptura) fuerit partibus tradita et absoluta."
(p) Bracton 100 b. Cf. Glanv. X. 13. Si vero cartam illam ab initio advocavit is, contra quem producitur ad debitum aliquid probandum, tune juxta
cartie illius tenorem tenebitur ipse debitor creditori satisfacere. [Cf. J. 3.
21. —Tr.]
(q) Bracton 100 b., makes here the remark, quod in his contractibus nominatis uterque obligatur alteri......et si non a principio tamen postea potest
uterque incipere alteri obligari ratione expensarum et hujusmodi. Cf. ~ 2. J.
3. 22. He also calls these contracts bone fidei contractus.




CHAP. XVIII.]       THE LAW  OF OBLIGATIONS.                    145
That is to say, the emptio remained nudum  pactum  when it
had not been reduced to writing in proper form, or had not
been at least partially fulfilled (r).  After the contract was
perfected, if one of the parties failed to comply with it, the
other could not, as a rule, recede from  it, but had his remedy
in an action for its fulfilment.
"Nee poterit postea aliquis  contrahentium   a contractu resilire, prstextu pretii non soluti in parte vel
in toto, sed agere poterit venditor ad recuperandum
id, quod de pretio defuerit, sed non ad ipsam (here is
manifestly wanting rem, which is found in Fleta) rehabendam."
In the opposite case, i.e. as long as the contract was considered to remain nudum pactum  merely:
"locus erit pcenitentie et impune recedere possunt
partes contrahentes a contractu" (s) (cf. pr. J. 3. 23.).
This right to withdraw was accorded to both parties by the
English as by the Roman law  in the case "cum  solhe arrae
datse sunt," the buyer losing the arra and the seller double
the arra:
"emptor...... perdat quod dedit,......  enditor......quod arrarum nomine receperit, emptori restituat duplum."
The buyer's right to withdraw was recognized from  ancient
times, but neither the corresponding right of the seller nor
the indemnity for its exercise was definitely settled in Glanville's day.  Glanville asks the question:
" si autem venditor recedere voluerit,...... quero, utrum
sine pcena id facere possit?"
and answers it in the negative:
"quia tune videretur in hoc melioris conditionis venditor quam emptor."
He propounds but gives no answer to this other question:
"quod si inipune id fieri nequit, quam  poenam  inde
prestabit?"
(r) Bracton 61,b. Fleta II. 58. Glanville X. 14.: Perficitur autem emptio......ex quo de pretio inter contrahentes convenit; ita tanen, quod secuta
fuerit rei.....traditio, vel quod pretium fuerit solutum totum sive pars, vel saltem
quod arre indefuerint date et recepse.
(s) Bracton 61 b. Glanville X. 14.




146  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
At a later period  the Roman  law  was received  upon  this
point, and the question settled in accordance with it (I).
As a requisite of the emptio Bracton mentions particularly
a " certum  pretium."   This he holds might also
Its requisites.                                                   z
exist when the price was fixed "quanti talis mestimaverit," if an  astimatio  really  followed.   Otherwise, the
sale was null, "quasi nullo pretio definito," as in ~ 1. J. 1. c.
In regard to the periculumn rei emptce, the Roman rule did not
apply, but that of the old English law:
"periculum......  generaliter ilium  respicit, qui rem  tenet" (u).
Hence Bracton is enabled to apply, in nearly the same words,
to the seller what is said of the buyer in ~ 3. J. 1. c. (v).
Conditional sales are mentioned  by Bracton, particularly
those spoken of in 4. J. 1. c.,
"ut, si talis res empta intra certum  diem  emptori placuerit, sit ei empta aureis tot,"
with which he connects the pactum  displicentite (mentioned
by Glanville also):
"si displicuerit emptori, restituatur" (2).
The contract of locatio conductio is treated of by Bracton
at less length.   The position  of the contractors
Locatio conductio. 
is thus explained:
"locator tenetur obligatus rem  locatam  ad usum  dare;
et conductor tenetur mercedem  solvere."
The right of the locator over the invecta and illata as pledges
is also recognized:
"si res iummobilis locata fuerit,......sicut domus......
(t) Glanville X. 14. Bracton 62. Fleta II. 58. 1 5. [According to the Regiam  Majestatem  double the Earnest was forfeited; see Beames's Glanville,
269 not 1. —-Tr.]
(u) Glanville X. 14.
(v) Bracton 62. —Ut si bos venditus, mortuus fuerit ante traditionem, vel cedes
incendio consumptae, vel fundus vi fluminis...... ablatus,.....totum periculum
pertineat ad venditorem, at contrario vero videtur, quod si post emptionem, ante
traditionem, fundo vendito aliquid per alluvionem......accreverit, quod commodum ad venditorem pertinebit...... Commodum ejus esse debebit, cujus est
periculum. Fleta II. 58. ~ 8.
(2) Cf. L. 3. D. de cont. empt. 18. 1. —Tr.




CHAP. XVIII.]     THE LAW  OF OBLIGATIONS.                   147
omnia invecta et illata......pro mercede......pignori sunt
annexa" (3).
Finally, we find repeated the liability of the conductor, laid
down in ~ 5. J. 3. 24., for
"custodia, qualem  diligentissimus paterfamilias suis
rebus adhibet"
in the usus vestimentorum, auri vel argenti, vel jumenti (w).
Our author only hurriedly touches upon the other grounds
upon which obligations originate.  That of De-              Delict.
lict he turns over to the Criminal law. He designates those obligations as quasi-contracs,            uasi-contract.
"quse nec omnino ex pacto, nec omnino ex maleficio
(oriuntur), sed tamen majorem cum pactis habent affinitatem, quam cum maleficiis;"                   Quasi-delict.
and as quasi-delicts those,
qume nec ad pacta accedunt, nec proprie ad maleficia,
*sed similiora sunt maleficiis quam pactis."
Bracton refers to the head of quasi-contract the negotiorumn
gestio, the tutela, the communio, the actio familiie herciscundTa, the actio ex testamnento and the condictio indebiti.
Under the head of quasi-delict is placed the case, "si judex
scienter male judicaverit," together with other transgressiones which are not specifically designated (x).
Bracton speaks of the extinction of obligations, as well
per exceptionem, as ipso jure.  Under the first Extinction of obhead are mentioned the exceptions pactum  de    ligations.
non petendo, exceptio doli, metus, rei judicatae, jusjurandum,
praescriptio. The extinction of obligations ipso jure, is stated
to operate so that "nullhe remaneant ejus (sc. obligationis)
reliquiae."  Under this latter head is mentioned  solutio,
which might be of two kinds vera and imaginaria.  The obligation was extinguished by the vera solutio or actual payment,
(w) Bracton 62. 62 b. Fleta II. 59.
(x) Br. 99. 100 b. 101. 103.
(3) Cf. L. 4. pr. D. de pactis 2. 14. The English law of distress is compared
with the Scotch law of the liability of the Invecta et Illata in Patterson's Compendium of English and Scotch law, 140. —Tr.




148  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
"quia soluto eo, quod debetur, omnis obligatio tollitur,
sive ipse solvat, qui debeat, sive alius pro eo, sive debitore sciente, sive ignorante, et eo etiam  invito" (from
pr. J. quib. mood. 3. 29).
If payment was made on behalf of the principal debtor, it
released the surety and vice versa.  The imaginaria solutio was
the acceptilatio:
" ut si dicatur: omne quod tibi debui ex quacunque
causa, habesne acceptun? et respondeatur rel scribatur,
habeo acceptumque fero" (y) (=  ~ 1. J. 1. c.)
Obligations were also extinguished ipso jure by novatio:
"ut, si transfusa  sit obligatio  de  una  persona  in
aliam, quoe in se susceperit obligationem; enim  interventu  nove persone, nova  nascitur obligatio  et
prima tollitur, sicut de pecunia constituta, ut si quis
in se susceperit alterius obligationemr" (cf. ~ 3. J.
1. c.) (z);
and also by confusio, which is explained in the following not
very intelligible words:
" si confusa massa fuerit cum  alia, ita quod non appareat."
Bracton besides lays down the following general rule similar
to that in L. 153. D. de reg. juris 50. 17. (aa):
"quod eisdem  modis dissolvitur obligatio, quae nascitur ex contractu vel quasi, quibus contrahitur."
This he illustrates by the following application in detail:
"re, ut si res petenti restituatur; verbis, ut si fiat in
contrarium......; scripto, ut si conscripserim  me debere,
scribat creditor se accepisse; consensu, ut si......ex utraque parte recedatur a contractu per communem  dissensum  utriusque et non alterius tantum; traditione, si
res tradita retradatur; junctura, ut si fiat in contrarium" (bb).
(y) Br. 101. The "scribatur" is another proof of the views laid down in
the beginning of this Chapter. Cf. Fleta II. 60. ~ 5-18.
(z) The "transfusa" in the definition of novatio is from L. 1. D. de novat.
46. 2. and Azo in Cod. de novat. f. 220. No. 4.
(aa) Fere quibuscunque modis obligamur, iisdem in contrarium actis liberamur.
(bb) Bracton 101. Fleta IT. 60. &{ 19. 20.




CHAP. XVIII.]           THE  LAW  OF  OBLIGATIONS.                            149
This comparison recalls a similar one in the glossa ordin. ad
L. 153. D. 50. 17. (cc).
(cc) Ex contractu quatuor modis obligamur: re, verbis, literis et consensu,
sic et quatuor modis contrariis actis liberamur scilicet reddendo ren depositam,
acceptilatione, item literis in contrarium missis ab eo, in quem priores expositse fuerint; item contrario consensu etc.




CHAPTER XIX.
ACTIONS-PROCEDURE -PRACTICE.
BRACTON'S notion of an action is taken from
Actions.
the Roman law:
"actio nihil aliud est, quam jus prosequendi in judicio,
quod alicui debetur" (pr. J. de act. 4. 6.) (a).
His division of actions is also Roman.  His system of actions
is constructed upon the basis furnished by Justinian's Institutes, and is not merely confined to the distinctions between
placita criminalia and civilia, and petitory and possessory
remedies, which are to be found in Glanville (b). Passing
by less important divisions of actions, I dwell only on the
following:
"quod (actionum) quoedam  sunt in rem, quaedam  in
personam et quvedam mixtce."
This division has obtained in the English law from Bracton's
time until the present day. Actions in rem were,
Actions in rem.
as in ~ 1. J. 4. 6., those
"que dantur contra possidentem,......ut si quis petat
ab alio rem  certain......et contendat se habere jus, et
inde esse dominum."
They were however confined to immovable things and rights,
a consequence resulting from the bifurcation of the English
law into two systems, one for immovables, and the other for
movables.  For movables there was no action in rem, no
vindicatio, and damages only could be sued for, for
"cum  res sit mobilis......,placitum  re vera erit in personam tantumn" (c).
(a) 98 b. The accompanying explanation is taken from Azo f. 258 b No. 4.
(b) Glanville I. 1.; I. 3.
(c) Bracton 101 b. 102. 102 b. Fleta II. 60. } 21. Down to the present day no
action in rem can be brought in England for movables. [This remark ispractically
(150)




CHAP. XIX.]    ACTIONS-FROCEDUR-E-~PRACTICE.                            151
Actions in rem  were, some petitory "super proprietate etjule,"
and some possessory "super possessione ilpsa proditte."  Among
the first Bracton  enumerates:  the rei vindicatio (breve de
recto); the confessoria actio, "qua dicis tibi jus esse eundi,"
which was not designated by a special English  name; and
the negatoria actio, which was likewise known  to the Engtrue, and shows the author's accurate knowledge of the working of the English
doctrine at home. But the remark perhaps is not in point of doctrine absolutely
correct. The English action of replevin is a proceeding in which the title to any
movables wrongfully detained might be tried and the actual possession of them
recovered without reference to the question whether they had been wrongfully
taken. In a case reported in 5 Adolphus & Ellis 142, Lord Chief Justice Denman said, "Every unlawful detention is a taking;" and in a case in 1 Siderfin
81, 82, it was decided that, in this action, the plea of non cepit infra sex annos
was bad.  The plea should have been either causa actionis non accrevit infra
sex annos, or non cepit nec detinuit injuste etc. infra sex annos (and see I Keble
279, 317, 318, Gilbert on Replevin 131). Spelman in his Glossary defines the
proceeding thus: Replegiare est rem  apud alium  detentam, cautione legitima
interposita, redimere. This definition is quoted in the note to 1 Sch. & Lef.
327, where, in the text, Lord Redesdale says that Blackstone's definition of this
action is too narrow, and that many old authorities will be found in the books
for replevin being brought where there was no distress. In 1 Ball & Beaty 328,
Lord Manners thought it a fair object of an action of replevin to try the title
to goods under an alleged right of stoppage in transitu.
In Pennsylvania, Massachusetts, and elsewhere in the United States, this
doctrine is carried out to the full practical extent of using the action of replevin as a remedy to change compulsorily the actual possession of movables
in favor of any proprietor from whom they are, in any wise, wrongfully detained, without any reference to the question of a wrongful taking. This course
of procedure is here considered as the practical effect of English doctrine as to
the action.  Property may be counterpleaded, or claimed by the defendant.
In such a case, a bond or stipulation with surety, or a pecuniary deposit of
the value, must be substituted pendente lite; and the original subject of the
action may not be forthcoming to answer the plaintiff's ultimate recovery.
This however is a universal and unavoidable incident of proceedings in rem as
to movables.
But in England, for centuries there has perhaps not been any recourse to
the action of replevin except for the immediate restoration of possession in the
case of an actual wrongful taking.  Such specific restoration does not contradict the general truth of the author's remark. In the action of detinue the
possession is not changed pendente lite; and the plaintiff can only recover the
goods, or their value. This, in effect, is a judgment for the value only. The
rare and extraordinary cases in which specific possession of a chattel may be
decreed by a court of equity, are so exceptional as to require no observation
here, and do not conflict with the author's remark. —Tr.]




152  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
lish law. (1). Under the second head he places the following:
the  interdictum   recuperande possessionis, which  he calls
assisa novce disseisincc, and which corresponds to the Roman
interdict unde vi; the interdictlum   retinendle     possessionis,
which falls also under the other category; and the interdictum  adipiscendte  possessionis which he calls assisa mortis antecessoris, and also hereditatis petitio  possessoria, as well as
interdictum  quorum  bonorum  (d).  The relation of the possessory to the petitory actions was such that an appeal to the
former did not preclude the  subsequent use of the latter,
while on the contrary the first use of petitory actions prevented all recourse from  ever afterwards being had to the
possessory.  Hence where a petitory and a possessory action
clashed, the causa possessionis was to be decided before the
causa proprietatis, as in L. 5. ~ 1. D. ad leg. Jul. 48. 6., L. 3.
C. de int. 8. 1., and c. 2. X. de caus. poss. 2. 12. (e).
Actions in personam, which following Azo our author also
Actions in perso- calls native*, were directed against the particular
nam.     person liable,
" cum  aliquis teneatur ad aliquid dandum  vel faciendum."
Actions in personam  were divided, according to their origin,
into civil actions, ex contractu vel quasi, and criminal (i.e. delict) actions, ex maleficio vel quasi.  Of the latter kind, the
actio  furti, condictio  furtiva, actio  vi bonorum   raptorum,
legis Aquiliae etc., are mentioned as examples.  These were
sometimes poene, sometimes rei, and  sometimes rci et pwno
persecutorice  (in  this sense mixtcee as in  ~ 16 sq. J. de act.
4. 6.), and were not transmitted to  or against heirs quoad
pcenam (f).
(d) Bracton 103.
(e) Bracton 104. 113. Quia esto, quod justiciarius prius de proprietate pronunciet,......si postea de possessione cognoscere voluerit inter eosdem, nihil
ageret, quia placitum de recto utrumque jus determinat tam possessionis quam
proprietatis, ut de Term. St. Trin. anno regni regis H. tertio in Corn. Eborum.
assisa mortis antecessoris, si Wilh. le Seneshall.  Bracton 267. 283 b. 413.
* Azo 262. No. 7.: Native, quia nascuntur ex contractibus etc., in opposition
to dativse quoe dantur ex legibus.
(f) Bracton 101 b. 102. 103 b. 104.
(1) Cf. L. 2. pr. D. si servitus vindicetur 8. 5. —Tr.




CHAP. XIx.]    ACTIONS- PROCEDIURE-PRACTICE.                         153
Actiones mixtfe, "tam  in rem, quam  in personam, quia mixtam habent causam  ad utrumque," were the three                 ixed actions.
r,                  Mixed actions.
Roman  actions of partition, of which  one, the
familie herciscundae, has already been  referred to in Chapter XVI.  In these quilibet actor et rens, but he was called
actor "qui prilnus provocaverit ad judicium" (g).
Bracton does not treat of exceptions in connection with
actions, but discusses them  incidentally  to the
writ of right in  a tract, specially  devoted  to
them, entitled  "de exceptionibus" (Lib. V. Tract. 5.) (2).
Out of Bracton's ample  exposition  of the  requisites and
effects of the different exceptions, I advert only to the following points, which are connected with our present purpose.
The definition,
"' est autem  exceptio actionis elisio, per quam  actio perimitur aut differtur,"
recalls L. 2. pr. D. de exc. 44. 1.  The division into  exceptionesperermptoric and dilatoric herein indicated seems however
to have retained no absolute character (h).  Bracton, using
a simile of Azo's, calls exceptions shields against the swords
of actions (i), and the principle "qui excipit est quasi actor"
held good so that the defendant had the onus probationis of
his exception, just as the plaintiff had to prove his ground of
action (j).  To exceptions were opposed replicctiomes (the example mentioned in pr. J. de repl. 4. 14. being  repeated),
and to replicationes, triplicationes (no mention being made
of duplicationes), etc.
(g) Bracton 102 b. 369 b. 372. 445 b. Fleta V. 9. ~ 1-4.
(h) Bracton 399 b. 187 b. [Cf. ~ 8-10 J. de excep. 4. 13.; L. 3. D. de except.
praescrip. 44. 1. Reeves I. 451.-Tr.]
(i) Bracton 399 b. Et sicut actores armantur actionibus et quasi accinguntur gladiis, ita rei e contra muniuntur exceptionibus et defenduntur quasi
clipeis. Cf. Azo 263 b. No. 6.
(j) Bracton 400. 215 b. 301 b.: qui excepit probare debet exceptionem.
(2) This remark is based upon the author's analysis of Bracton's fifth book
in Chapter II.' In note (2) to that Chapter it has already been remarked that
the fifth book is analyzed differently by Reeves, who applies the title breve de
recto to its first tract only.-Tr.




154  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
Procedure offers but little for our purposes in Bracton.
Procedure.  In its main features the development of that
Procedure.
branch of the law had been so much upon the
basis of peculiarly English views and principles, and, as far
as actions in rem were concerned, so much in the forms and
spirit of the. feudal system, that the Roman law had not been
able to exercise the same influence there as elsewhere, and
has left in it but few and detached traces.  On the other
hand, however, a certain number of principles were transferred from  the procedure of the Canon to that of the English law.  This is not surprising, for both systems were coexistent in England, the Canonical procedure being practically
used in the ecclesiastical courts. The Canon law influence
is also seen in Bracton's discussion of the duties and office
of judges.  The judge, he declares, must be incorruptible:
" abstineat omni munere."  lIteuus is here taken in its widest
sense, as expressed in c. 114. Cans. 1. qu. 1, and the penalties
prescribed in L. 3. 6. C. ad leg. Jul. rep. 9. 27. are here explained as applicable (k). Moreover, the judge could be challenged as suspectus on account of the social relations mentioned in the Decretals (consanguinitas, amicitia, inimicitia,
familiaritas etc.). The grounds of suspicion, laid down by
the Canon law for excluding witnesses, were early considered
as conclusive in England in challenging jurors.  Glanville
says:
" excipi possunt jltratores eisdem modis, quibus et testes in
Curia( Christianitatis juste repelluntur,"
and Bracton remarks:
"eisdem enim  modis amoventur a sacramento, quibus
etiam testes amoventur a testimonio."
This is explained by the original position of jurors, which
was that of witnesses, who were cognizant of the facts (1).
(k) Bracton 106 b. Munus a manu, quale est res corporalis, que praestatur:
munus a lingua, quale est blandiens et adulatoria supplicatio;......munus ab
obsequio, quale est servitium acceptum et impensum.
(I) Bracton 412. 185. Causes for challenge: amicitia, inimicitia (magna et
non levis), familiaritas, potestas, infamia etc. Cf. Glanville II. 12.; Fleta IV. 8.




CHAP. XIX.]    ACTIONS-PROCEDURE-PRACTICE.                              155
The Canon law  distinction between judex ordinarius and
judex  delegatus, between  jurisdictio  ordinaria  Ordinary and delanddelegata, is also recognized by Bracton.  The   egated jurisdicdelegated jurisdiction was especially considered    t
to exist in the judices itinerantes, and some of the principles
mentioned by Bracton in regard to their powers and authority remind us strongly of like rules relating to  ecclesiastical
delegates (m).
In regard to jurisdiction, the Roman rule " actor sequitur
forum  rei" held good; in one passage only, do I                  Jurisdiction.
0 7   JT  o  ~/7  Jurisdiction.
find a foruim  contractus alluded to (n).  Other expressions are undoubtedly taken from  the Canon law  procedure, such as: intentio, in Fleta narratio (3) (also: Intentio, reproponere, fundare intentionem), by which  the                     sponsio.
plaintiff  stated his grounds for the action; responsio for the
defendant's answer etc.  In one passage is men-.ZD~~ *"Litis contestatio.
tioned the litis contestatio, which however has not
here at all its canonical importance (o). The most accurate
possible description of the thing which was the object of the
action was required in accordance with L. 6. D. de rei vind.
6. 1.:
"in  qualibet actione, per quam  petitur res corporalis
designare oportet petentem, qume et qualis sit res, quse
petitur (p);
in connection with the same authority, and with the direction
of L. 9. C. de jud. 3. 1. that
judices inprimis oportet rei qualitatem  plena inquisitione discutere etc.",
(m) Bracton 108 b. Extenditur eorum jurisdictio ad omnia, sine quibus
causa terminari non potest.  Delegatus non potest subdelegare etc.
(n) Bracton 401.: quia conveniendus, ubi contraxit ille, qui contraxit.
(o) Bracton 373.: usque ad litis contestationem, scilicet quousque fuerit prxcise
responsum intentionipetentis; evidently after c. un. X. de litisc. 2. 5.
(p) Bracton 431 b. Si res mobilis petatur, oportet designare, utrum petatur
animal vel vestis,...... si vestis, utrum bombicina vel lana, vel de linio; si petatur res, quse in pondere consistat,.....tune scire oportet cujus sit ponderis et
cujus generis;......si autem quce consistit in mensura, tune utrum liquidum aut
solidum;......de numero autem oportebit constare, quot modia, vel hujusmodi etc.
(3) Bracton 240, uses the term narratio.-Tr.




156  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
should be placed  the interrogation  of the parties Twhich
Bracton enjoins upon the judges (q).  I will not
Interrogations..
decide whether or not, the putting of the plaintiff into the possession of the disputed thing, in consequence
of the persistent default of the defendant in an action in rem,
is to be connected with the missio in possessionerm rei servacdce
causa occurring in like case in the Canon law procedure (c. 4.
X. de dol. 2. 14.; c. 1. X. de eo, qui. 2. 15.): there may be
here presented only an accidental external resemblance between legal principles of independent growth.  It is to be
remarked, however, that in one passage Bracton does not
hesitate to speak of such putting into possession as missio in
seisinam quasi ex secundo decreto (r).
Some foreign principles are also to be found in the English law  of Bracton's day relative to proof by
Proof by charters.
charters.  Bracton declares that a charta privata
was evidence against but notfor him by whom it was made:
" facit aliquando quis scripturam sibi ipsi et tali scripturae non erit fides adhibenda; aliquando facit contra se,
et tali scriptlar  adhibetur fides."
He confines the liability to produce charters in court to instrumenta communia, in accordance with c. 12. X. de fide
inst. 2. 22.  IHe expressly lays down that charters need not
be produced
" ad fundandam  intentioncrn  cum  non teneatur armare
adversariumn suum  contra se,"
as in L. 7. C. de testib. 4. 20. and c. 3. ~ 35. Caus. 4. qu.
Probate of char- 4. (s).  The proof of the genuineness or authenters.    ticity of charters might be made per testes, i.e.
by witnesses of their execution. Two of such witnesses agreeing made "plenam probationem" according to the rule, "in
ore duorum vel trium  testium  stat omne verbum," while the
evidence of one afforded only semiplenam probationein, " que in(q) Bracton 183 b. Bracton remarks that these interrogationes were not
attended to by all judges. Cf. Fleta IV. 7. [Cf. Bracton 144, and cases in
Rot. Cur. Reg. I. 30, 31, II. 78.-Tr.]
(r) Bracton 367.
(s) Bracton 33 b. 34. [Cf. cases in Rot. Cur. Reg. II. 73, 88, 99.-Tr.]




CHAP. XIX.]   ACTIONS-PROCEDURE-PRACTICE.                        157
ducit praesumtionem."   Where the witnesses contradicted
each other,
"si impares fuerint numeri......,majori et digniori parti
standum  erit;"
but if they were equal in numbers and dignity, the charter
was held to be genuine,-principles, which if they do not
entirely agree with those expressed in L. 3. ~ 2. L. 21. ~ 3.
D. de test. 22. 5. and in c. 32. X. de test. 2. 20, may yet have
derived their origin therefrom (t). Charters might also be
proved by a comparison of seals, "per collationem                Seals
signorum."   This mode of verification originated
from  the  circumstance that the English law  (even in  the
Saxon period) considered an essential requisite of the validity of a charter to be the seal, and not the signature of its
maker.  It hence held the authenticity of the seal to be
sufficient proof of the authenticity of the charter (u). It can
hardly be doubted that this collatio signorum  (which was
also known to Glanville) must be traced back to the Roman
comparison of handwriting, although the details of the Roman
proceeding were not copied (v).
The authenticity or original'genuineness of a charter is
very clearly distinguished by Bracton from  its   Exceptions to
credibility and from its value as evidence. Where            charters
a charter presented erasures, cancellings and the like, especially if they occurred in loco suspecto (w), its credibility
was impaired if not wholly destroyed; for
"' calumniosam  scripturam vim in judicio obtinere non
convenit" (from L. 2. D. de fid. instr. 22. 4.).
(t) Bracton 38. 396-398. Azo f. 85. No. 1.
(u) Reeves I. 88. [See also Hardy in Rot. Chart. in Tur. Lond. pp. xxxiv
sq.; Attorney Gen. v. Hospital of St. John, Jurist, N. S, vol. X. 896.-Tr.]
(v) Bracton 398 b.:-si conferant alia sigilla, quae aliquando in judicio approbata fuerint,.......et si omnibus modis conveniant,.......ita quod nulla in eis
appareat differentia, hoc solum sufficit ad probationem chartae. Cf. Glanv. X.
12.; Fleta VI. 33. 34.
(w) Bracton, ibid. The addition of "loco suspecto scilicet in narrationefacti,"
seems to be founded upon a misunderstanding of c. 3. X. de fid. inst. 2. 22.
where in the words: "et literae in narratione facti si erratum sit, possunt incunctanter abradi," the contrary is said.
11




158  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
Certain exceptions to the legal validity of a charter might
destroy its value as evidence, although the writing and seal
were admitted. From the foregoing, it will be seen how the
English law had been developed by contact with the Roman
since Glanville's time.  Glanville lays it down as an axiom
that a man could not object to a charter the seal of which
he acknowledged to be his own, even when his type seal
had been improperly or fraudulently used:
"nam  sume malse custodite imputatur, si damnumn incurret per sigillum suum male custoditum."
Bracton, on the contrary, unhesitatingly admits the exceptions doli, metus, erroris etc., and in doing so undoubtedly
shows the influence of the Roman law (x).
(x) Glanville X. 12. Bracton 396-398. [Qu: if there be any difference between
these authors, except in the respective applications of their propositions? —T.]




CHAPTER XX.
ASSISA NOVIE DISSEISINE.
ONLY one of the English legal remedies discussed by Bractol demands our particular attention, viz. the   lmportance of
assisa (recognitio) nove disseisinae.  This assise    thisassise.
was the action to remedy disseisin, i.e. where a man, actually
seized, was deprived of; or obstructed in his possession. It
excites attention not merely for its importance in regard to
the history of the trial by jury, but also because it is just
here that the influence of the Roman law shows itself.
The assisa novae disseisinme corresponds to the interdicts
unde vi and uti possidetis of the Roman law (1),
and still more strikingly to the remediumn spoliationis of the then Canon law.  It is in fact often designated
by the latter name in the older English authorities. It did
not originate in the general customary law, but owed its introduction to an act of legislation.  This circumstance is
what Glanville refers to in expressions such as:
" ex beneficio constitutionis regie,"
"disseisito htjus constitutionis beneficio subvenitur."
Bracton also alludes to this legislative introduction, when he
says:
"de beneficio principis ei succurritur per assisam novae
disseisinr, nmutis vriiliis excogitatanm et itc'entan " (a).
In fact the first mention of this legal remedy can be shown
to be in an act of legislation of 1176, the Assises of North(a) Glanville XIII. 1. 32. Bracton 164 b.
(1) See Spence I. 220.-Tr.
(159)




160  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
ampton, by which the Constitutions of Clarendon were revised (b). It is there said in Article X.:
"justicioe domini regis faciant fieri recognitionemn de
disseisinis factis super assisam.
It is not impossible that our assise derives its existence from
the Assises of Northampton, if not from the Constitutions of
Clarendon, both of which have unfortunately come down to
us incomplete.  There was previously known to the English law no special remedy to protect possession against disseisin. When therefore the want of such protection and the
need of a speedy relief for such wrongs came to be felt (c),
the legislative authority, especially if it was advised byjudges
and ecclesiastics of Civilian training, found its most convenient models to be the Roman possessory actions, which
were then most extensively used in the actual practice of
the courts Christian (d).  This source, when once opened,
was the more readily applied to, since, as we have seen in
Chapter XI, the English lawyers had adopted the general
features of the then standard Roman theory of possession.
In its details, this will be shown in what follows.
Like the interdict unde vi, the assisa novae disseisina served
Applied to i n- only to protect the possession of immovables, inmovables.   eluding the quasi-possession of servitutes etc. (e).
Movables were, indeed, excluded from  the  application of
possessory as well as petitory remedies.  Among movables
were reckoned ships, as in L. 1. ~ 7. D. de vi 43. 16.,
"item  non competit ei, qui de nave ejectus fuerit......
non magis, quam si tractus esset de equo suo sive de
vehiculo, curru vel carecta;"
but not wooden houses in solo proprio, "sive cohserent, sive
non" (cf. L. 1. ~ 8. D. 1. c.) (f).
(b) Printed in Phillips, Engl. Rechtsgesch. III. 53. under the title: Assisse
Henrici regis facte apud Clarendon et consecratae apud Northamptune. [See
Wilkins, 330; Palgrave's Commonwealth, Vol. I., Part II., p. clxviii.-Tr.]
(c) Bracton 164 b.: persummariam cognitionemabsquemagna juris solennitate.
(d) The words "multis vigiliis excogitatam et inventam" in the above quoted
passage, would perhaps augur a more scientific preparation.
(e) In servitutes it had other names, e.g. assisa de communia etc. Bracton
224 sq. 164 b. [But cf. Reeves I. 345.-Tr.]
(f) Bracton 168.




CHAP. XX.]          ASSISA NOVE DISSEISIN'.                       161
The action presupposed the occurrence of a previous disseisin.   But the  notion  of disseisin  was not
Disseisin.
limited to  the strict meaning  of the word, to
forcible putting out of possession, which Bracton calls ejecio,
dejectio, or disseisina violenta. Disseisin, like the Canonical
spoliatio (which expression is not seldom used for disseisin in
the older English sources), included also what Bracton styles
disseisina simplex. Disseisina simplex comprised every case
where the actual possessor was deprived of, or obstructed in
his possession without the disseisor making use of force.
Disseisina violenta, might or might not be attended with vis
armata (g).  As in the Roman law, it also occurred in the
case in which the possessor was deprived of his liberty while
continuing to be still on the land itself, and in that in which
his return and resumption of possession after absence were
forcibly prevented.
Bracton 166 b.  "Sed si quis meos et me dejecerit, et
quosdam retinuerit etvinxerit......,competit mihi assisa;
desii enim possidere, cum servi mei vel alii, per quos
retinui possessionem, ab alio possidentur...... Item  si
ego dejectus non fuero, in possessione tamen vinctus sum......,adhuc competit mihi assisa" (cf. L. 1. ~~ 46. 47.
D. de vi. 43. 16);
and
f. 161 b.: "fit disseisina, cum  quis ad nundinas vel peregre profectusfuerit, nemine in domo relicto......,alius in
possessionem  ingrediatur et ipsum reversum non admittat,
vel curn ingredi voluerit, per se-vel assumptis viribus
violenter repellat" (from  L. 1. ~ 24. 25. D. 1. c.; L. 6.
~ 1.; L. 7. D. de acq. poss. 41. 2.).
Disseisina simplex occurred not merely in cases of corporal
obstruction of possession, or of usurping and exSimple disseisin.
ceeding servitutes, but also in that of unjustly
contesting the rights of the possessor:
(g) Bracton 162 b.: telorum appellatione omnia, in quibus singuli homines
nocere possunt, accipiuntur; sed si quis venerit sine armis et ipsa concertatione
tigna sumpserit, fustes et lapides, talis dicitur vis armata. Si quis autem venerit cum armis, armis ad dejiciendum non usus fuerit et dejecerit, vis armata
dicitur esse facta; sufficit enim terror armorum, ut videatur armis dejecisse etc.
Nearly verbatim from L. 3. ~] 2-11. D. de vi. 43. 16.-Cf. Fleta IV. 4.




162  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
"cum  commodum  utendi ei omnino auferat quomiinus
commode......uti possit impediat, possessionem  inquietando vel perturbando......      Etiam  si quis......uti voluerit
in  alterius tenemento......arando, contendendo  tenementum  esse suum  quod est alterius" (h).
It also happened in cases where a man injuriously interfered
with anothex's legal rights by things done on his own land,
cases to which  according to the Roman law  the possessory
inderdicts did not apply, but other legal remedies (e.g. operis
novi nunciatio, int. quod vi ant clam) (i).  Finally Bracton
expressly states that disseisin might occur in  certain  cases
where one was wrongfully put out of possession through  a
wrongful judgment or execution; a principle whose origin
was probably derived from  the Roman law  (j).
As  in  the  PRoman  law  it was  pioper for a
Self-defence
against an at- person first to resort to self-defence with modetempt to dis- ramen  inculpatte tutele, when  an  attempt was
seise.
made to put him  out of possession.
"Incontinenti vim  vi repellere (licet)".  "'Tnde......
licitum  erit, cum   armis contra  pacenl venientem  ut
expellat, cum  armis repellere,......       sed tamen cutm  talis
discretionis moderamine, qutod ijurictan non comrltatct" (k).
After disseisin  had  actually taken  place the  disseisee was
Ejection of dis- permitted to right himself immediately and reseisoras arem- take possession, for he was considered to lose at
edy.         first only the natural and not the civil possession
(see Chapter XI.):
"-  quod ille, qui ita disseisitus fuit, per se, si possit,
vel sumtis viribus et resumtis, dum  tamen size aliquto
(h) Bracton 216 b. 161 b.:-ut si quis voluerit in alterius tenemento contra
ipsius tentttis voluntaten arando, fodiendo, falcando,......vel pecora immittendo
vel alio quocumque modo sic servitutem imponendo -= L. 3. II 2. sq. D. uti
poss. 43. 17.; L. 11. D. de vi 43. 16.-Upon disseisin in its relation to servitutes: Bracton 221 sq.
(i) These were called nocumenta injuriosa, for which an assisa nov. diss.,
might be brought, and in cases where that did not suffice, a special assisa de
nocumentis. Bracton 231 b.-235. Fleta IV. 26-28. [But cf. Reeves I. 345.-Tr.]
(j) Bracton 205. 205 b.  Cf. c. 7. X. de rest. spol. 2. 13., and Bruns, Recht
des Besitzes, 208 sq. [Cf. Reeves I. 321.-Tr.]
(k) Br. 162 b. 163. =  L. 1. ~ 27., L. 3. & 9. D. de vi 43. 16.; L. 1. C. unde
vi 8. 4.




CHAP. XX.]             ASSISA  NOV:E DISSEISINE.                          163
intervallo, flagrante disseisina et maleficio, rejiciat spoliantem."
In this latter case the ejected disseisor had not the remedy
of the assise (1). If however the original disseisee had not
incontinenti made a successful use of his right of self-redress,
if he had, as Bracton viewed it, lost both the natural and the
civil possession  "per impotentiam, negligentiam" etc., his
only remedy left was then the assise. For, just as strictly as
the  constitution  of Valentinian, L. 7. C. unde vi 8. 4., forbade taking the law  into  one's own hands except in the case
just mentioned, the English law  prohibited doing so.  From
Bracton's remarks there is little doubt that the Law just cited
was regarded as the authority for that principle (m).
The following points also present themselves for our consideration in this assise.  He who had possession  Plaintiff and deproprio nomine could alone be plaintiff; as in  the   fendant in the
law  of the  Digest.   Hence  he who alieno nomine                    e
possidet could  not be plaintiff  (the rule being that his ejection was to be remedied by the proper possessor's bringing
the assise):
"pertinet tantum  ad eos querela, qui nomine suo proprio tenementum   tenent, et non  alieno".-    "Nulli
autem   competit querela nec  remedium   per assisam,
qui in possessione fuerit nomine alieno, quia talis non
(1) Bracton 163. 164 b. = L. 3. ~ 9. D. de vi. The following corresponds to the
case given in L. 17. 1. c.  Ejicio te, tu me incontinenti et flagrante disseisina,
non recuperabo per assisam, quia passus sum id quod feci. Item ejicio te, et tu
me, et ego te postea incontinenti iterum, adhue competit tibi assisa......et ita
erit in infinitum, quod verus possessor ejicere poterit incontinenti, et non competit contra ipsum assisa, et si ipse a spoliatore ejiceretur...... poterit spoliatorem
rejicere, et non competit spoliatori assisa; 163 b.  Cf. Fleta IV. 2.
(m) Bracton 163 b.  Si forte assisam  contemnat et possessionem  suam sibi
usurpare proesumat, competit spoliatori......assisa, non quia injuste disseisitus
sit, sed quia sine judicio et quia per negligentiam veri domini utramque habere
incepit possessionem, naturalem et civilem. Bracton 210 b.; Si ad verum dominum violenter possessio pervenerit......et ubi conqueri deberet, facit sej udicem et
ejicit disseisitorem......,disseisitor indistincte......possessionis commodum reportabit...... Poena autemn erit spoliatoris, ut si sua sit res.......quod illam spoliator
restituat cumnfructibus......: vix tamcn superproprietatem in posterum audiendus (mitigation of L. 7. C. unde vi?). Cf. c. 11. X. de rest. spol. 2. 13.




164 BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
possidet, licet in possessione fuerit, sed ipse possidet,
cujus nomine possidetur" (n).
The result did not depend upon the right of possession,
whether it had been a possessio justa or injusta.  For, as
Bracton often repeats:
"ille, qui possidet, liect jus non habeat, eo tamen, quod in
possessione est, plus juris habet propter seisinam, quam ille,
qui est exti a possessionem."
The action was hence maintainable by the possessor bone
fidei, as well as malae fidei, and even by the disseisor himself
contra quemcunque tertium  (o).  As in the Roman law the
action was maintainable against the spoliator himself on the
ground either of actual perpetration, or of instigation (besides
that of ratihabitio); against the master in respect to his
familia; and against all participants in the disseisin.
"Item  incidit in assisam  non solum  ille, qui facit nomine alieno, verum  etiam  ille, cujus nomine fit, dum
tamen factum  suorum  et injuriam  advocaverit" (p).
Heirs were liable only quoad restitutionem, not quoad poenam.
Secondaly possessors were liable to the assise when the land
was acquired as litigiosa, or only as vitiosa, an effect of the
decree of the Lateran Council of 1216, and c. 18. X. de rest.
spol. 2. 13. (q).
The object of the  assise (independently  of the  public
Object of the as- penalty) was the restitution  of the  land  cum
sise.    fructibus:
"res ipsa cum  fructibus omnibus medio tempore perceptis scilicet a tempore disseisinae usque ad judicium
perceptis et percipiendis" (cf. L. 1. ~ 40. D. de vi),
together with full damages and an accounting for and restitution of all movables which had been upon the land:
(n) Bracton 165. 167 b. 168. 206.: nec competit assisa alicui, nisi ei tantum,
qui tune, quum ejiceretur, possidebat, nec alius ejici visus est, quam is, qui possidet nomine proprio vel alieno = L. 1. ~ 9. 23. D. de vi. Fleta IV. 3. ~ 1. sq.
(o) Bracton 165. 166 b. 184. 184 b. 196. = L. 2. D. uti poss. 43. 17.; L. 128.
D. de reg. jur. 50. 17.
(p) Bracton 171. 171 b. where L. 1. ^{ 12-18. D. de vi are partially given
verbatim. Bracton 174 b. 204 b. [Cf. Reeves I. 324, 325. —Tr.]
(q) Bracton 171. 204.: videndum erit, utrum illam habeat vitiosam. 204 b.




CHAP. XX.]          ASSISA NOV2E DISSEISIN2.                     165
"habenda erit ratio rerum  ablatarum, quae cum  ipsa
re restituantur......., non solum, quse propriae fuerunt ipsius dissejsiti, verum  etiam omnes illma, quae apud illum
depositae  commodata......fuerunt,...... quia hbec omnia
sub habendi verbo continentur."
Bracton thus merely repeats L. 1. ~~ 32 to 39. D. de vi (r).
(r) Bracton 186 b. 187.




CHAPTER XXI.
CRIMINAL LAW.
THE English Criminal law as we find it in Bracton's tract
English Criminal on the Crown, also, shows marks of the contact
law.    with the Roman law.  The Church and the
Inflence of the Canon law  had, however, a greater influence
Roman law upon its development, but it would exceed the
thereupon.   limits of the present investigation for me to go
into a connected and detailed examination of the influence
of those high authorities for the penal law doctrine of the
middle ages (a). I shall therefore confine myself to what is
contained in the following paragraphs.
A perfected theory of penal law cannot be expected from
Bracton, if we consider the then state of legal science; we only
meet with some general principles concerning criminal penalPunishments,  ties and the punishment of crime, which are taken
crines,    from the Title of the Digest de poenis. Thus he
enumerates the different kinds of punishments according to
L. 6. ~ 2. L. 7. L. 8. pr. sq. D. de pcen. 48. 19.:
" sunt autem quaedam, quae adimunt vitam vel membra.  Sunt autem, que auferunt civitatem, burgrlm vel
provinciam,......quoe continent exilium perpetuum vel
ad terpus, vel corporis coertionem, scilicet imprisonamentam...... Sunt quatdam, quT fustigationem, verberationem, pnmam pilloralem...... et damnum cum infamia
inducunt.  Sunt etiam  quaedam, quwe dignitatis et
ordinis depositionern inducunt, vel alicujus actus privationem vel prohibitionem."
His injunction to the judges to inflict a mild or a severe
(a) Biener has touched upon much which relates thereto, in his History of
Inquisitorial Procedure and in his work upon the English Jury.
(166)




CHAP. XXI.]                 CRIMINAL LAW.                             167
punishment according to the different character of particular
cases is taken from  L. 11. D. de pcenis:
"-respiciendum   est judicanti, ne  quid  ant durius
aut remissius constituatur, quam  causa deposcit; nec
enim  aut severitatis aut clementia  gloria affectanda
est, sed perpenso judicio prout qunque res expostulat
statuenldum  est......  Et pcene potius mollieldtve sunt,
quam  exasperandt."
From  the same source, viz., L. 16. D. de poenis, is derived also
the following passage in Bracton:
"P Facta puniuntur, ut furta, homicidia; scripta, ut falsa
et libelli famosi; con.sila, ut conjurationes.  Sed hec
quatuor genera, consideranda sunt septem   moodis.....
C(I.sa, ut in verberibus etc. (as in L. 16. ~ 2. D. de pcen.).
Persona dupliciter spectatur sc. ejus, qui fecit, et ejus,
qui passus est, aliter enim puniuntur ex iisdem  factionibus (sic!) servi quam  liberi, et aliter, qui quid in dominum  parentemve commiserit, quam  in extraneumn;.....
et similiter etatis ratio habenda est.  Tecmpus discernit
praedonem  a fure, vel effractorem, et furem  diurnum
a nocturno.   Qtanfitas discernit furer  ab abigeo.......
ut si quis suem  surripuerit, fur erit, et si quis gregem,
abigeus erit.  Euenifs, ut si exvoluntate et conscientia
certa fecerit quis aliquid......an ex eventu......: et secundum  hoc aut erit felonia aut infortunium" (b).
From  the Roman law  are derived  a series of provisions
relative to the outlawry, utlayatio, of a fugitive.Y)~         Z7"~~~~ ^      "'Outlawry.
criminal. Bracton cites different passages of the
Code and Digest in confirmation of the consequent confiscation of property, of the prohibition to harbor and the pernmission to slay an outlaw, and places outlawry altogether upon
the same footing as the Roman capitis diminutio maxima in
regard to its effects and consequences (c).
(6) Bracton 104 b. 105. We also find here L. 11.   2. D. de peen. Delinquunt
latrones proposito per factionem; ebrii impetu per ebrietatem, cum ad manus
vel ferrum pervenitur; casu, cum per infortunium, ut si aliquis venando per
telum in feram missum hominer interfecerit.
(c) Bracton 125. 128 b. 129.  Here he cites L. 1. C. 9. 39.; L. 2. C. 9. 49.;
L. 3.  6. D. 48. 8.; L. ult. D. 48. 17.




168 BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
In regard to the particular crimes themselves there is little
Crimen lsesa ma- to remark.  The crimen lmsce majestatis takes not
jestatis.    merely its name, but also its definition, from the
Roman law:
"si quis ausu temerario  machinatus sit in mortem
domini regis, vel aliquid egerit vel agi procuraverit
ad seditionem......exereitus sui, vel procurantibus auxilium et consilium praebuerit vel consensum."
We also find the confiscation of the traitor's property and
the incapacity of his issue to inherit, unmistakably connected
with L. 5. C. ad leg. Jul. maj. 9. 8:
"heredum suorumperpetua exheredatione,......est enim tam
grave crimen istud, ut vix permittitur heredibus, quod
vivant" (d).Furtum.      So also we meet with the definition of furtum,
"furtum est secundum leges contreetatio rei alience fraudulenta cum  animo furandi invito illo domino, cujus res
illa fuerit,"
which the Roman law has made current with us; but the
distinction between furtum  manifestum  and nec manifestum
connected therewith has nothing to do with the same distinction in the Roman law, but rests alone upon specially English ideas (e).  Finally, what Bracton says concerning injuria
is nothing but an extract from the corresponding title of the
Institutes (IV. 4.). He discriminates between injuria arising
from  words, and that arising from  acts done (Verbal und
Realinjurie):
"fit autem injuria non solum, cum quis pugno percussus fuerit, verberatus, vulneratus, vel fustibus cesus,
verum  cum  ei convicium  dictum  fuerit, vel de eo factum  carmen famosum" (~ 1. J. de inj. 4. 4.);
and between injuria levis et atrox; the latter being estimated
"ex ipso facto, ut si quis fuerit male vulneratus......et
male tractatus contra pacem regis; item ex loco, si in
curia dom. regis, si coram justiciariis......,in nundinis,
in foro, vel alibi coram omni populo; item locus vul(d) Bracton 118 b. Glanville XII. 1.: rebus insuper suis omnibus confiscandis et heredibus suis in perpetuum exheredandis. Cf. Fleta I. 21. { 1.
(e) Bracton 150 b. Fleta I. 36. { 1.




CHAP. XXI.]              CRIMINAL LAW.                        169
neris......ut si in fronte vel in oculo magis quam in loco
secreto etc." (cf. ~ J. 1. c.)
Injuria could also be inflicted upon a man in the persons of those  belonging  to  his household or
Injuria.
family:
"patitur injuriam  quis non solum  per se ipsum  sed
etiam  per alios, quos habet in potestate, sicut per
liberos.....et uxorem......servientes et servos, si pulsati
fuerint et verberati in contumeliam  suam, vel quatenus sua interfuit operibus eorum  non caruisse" (~ 2.
3. J. 1. c.).
The amount of the poena was to be regulated by the judge
"secundum qualitatem  delicti et persone," but after a lapse
of time the injured party lost his right to recover it, per dissimulationem, for he was then held to have pardoned the
wrong done him (f).
Some of the propositions laid down concerning homicide
are also.undoubtedly of Canonical origin.  The
Homicide.
distinction that the deed might be perpetrated
" lingua vel acto; lingua tribus modis: praecepto, consilio, defensione sive tuitione; facto quatuor modis:
justitia, necessitate, casu et voluntate,"
belongs to the ecclesiastical theory, and is found almost
identically in c. 2. X. de cler. pug. 5. 14.:
"homicidium  autem  tam  facto, quam  priecepto sive
consilio aut defensione non est dubium  perpetrari."
Necessitas only excused according to Bracton when it was
inevitabilis, i.e. when, as in c. 2. X. de horn. 5. 12., the fatal
blow had been inflicted
"sine odii meditatione in metu et dolore animi se et
suos liberando."
-In casual homicide (most of the examples of which are
taken from the Title X. de hom. 5. 12.) (g) the decisive question was:
(f) Bracton 155. 155 b. Fleta II. 1. ~ 2-9. [Cf. Reeves II. 45.-Tr.]
(g) Bracton 120 b. 121. 136 b. e.g.: ut si magister causa discipline discipulum verberat = c. 7. 12. X. de homic.; vel si quis deponebat foenum de curru
c. 14. 1. c.; vel si cum socius luderet cum socio, et jocosa levitate percusserit
-  c. 8. 9. 1. c.




170  BRACTON AND HIS RELATION TO THE ROMAN LAW. [PART II.
"utrum  quis dederit operam rei liitce vel illicitce,"
as in c. 49. 51. dist. 50., c. 9. 13. 23. 25. X. de horn. 5. 12. In
the first ease only, and in that alone when necessary diligence
had  been used, was the act excusable (t).  The following
passage lays down that all participants in the act were to be
punished for homicide:
"'omnes dici possunt homicide, et illi, qui percusserunt, et illi qui tenuerunt malo animo, dum  percussus
fuerit; item  et illi, qui voluntate occidendi venerunt,
lieet non percusserint; item  et illi,......qui venerunt, ut
prTstarent consilium  et auxilium  occisoribus, quaivis
aliquando eorum  violentia repellatur; item......(tenetur) et ille, qui prwcipit pereutere et occidere, quia
cumn non sint inimunes a culpa, immunes esse non
debent a poena."
This passage corresponds throughout to the principles which
are laid down in the Decretal of Alexander III., c. 6. X. de
homic., issued upon the occasion of the death of Archbishop
Becket (i).  Finally, Bracton speaks of suicide (j), and distinguishes, after L. 3. D. de bonis eor. 48. 21, whether it had
been committed after apprehension in the act of crime, or in
order to escape sentence, or whether it was done tidio vitte
vel impatientia doloris alicujus; in the two first cases the
confiscation of all the suicide's property took place (k).
(h) Bracton 1. c.
(i) Bracton 121. Fleta 1. 23. Cf. with the passage given above, the text. of
the decretal: & 2. Illi etiam, qui non, ut ferirent, sed ut percussoribus openi
ferrent, si forte per aliorum violentiam inpedirentur........    4. Hi quoque non
sunt a culpa liberi, nec a poena debent esse immunes etc.
(j) "Si quis feceritfeloniam de se ipso,':
(k) Bracton 130. 150.




_APPE NDIX.
(171)








APPENDIX.
TRANSLATOR'S NOTE TO CHAPTER VII., PP. 73, 74.
IT was originally intended that this note should be devoted to the
consideration of Bracton's influence upon the English law from his
own day to the present, and to a discussion of his authority during
the period of the Year Books and in modern times.  After mature
consideration, however, the translator has felt himself compelled to
abandon this purpose. A closer examination of this interesting subject showed it to be impossible that justice could be done to the influence which Bracton's writings have exercised during so long a
period without going into a thorough and systematic historical investigation. The cases and authorities to be commented upon are so
numerous, the researches requisite are so extensive, that an elaborate
discussion of much length would have been indispensable. Bracton's
great work must indubitably be considered an historical phenomenon
in European jurisprudence, in some respects without a parallel. The
appearance of a treatise of such magnitude, exhaustiveness, and original power, seems, indeed, to have been the true birth of a scientific
jurisprudence in England, the successful development of which has
steadily progressed to the present day. To trace the influence of the
great jurist in whose writings that development originated, is a subject of such extensive range and fundamental importance as perhaps
to require a book of itself. Certain it is, that no attempt to do justice
to the illustrious father of the Common law could be compressed
within the modest limits of this translation.
This determination has necessarily involved the omission of a
translation of Dr. Biener's pages upon the authority of Bracton during the period of the Year Books.  Dr. Biener's interpretation of
those authorities and his applications of that interpretation differ so
much with the views entertained by the translator, that the latter
12                  ( 173)




174                         APPENDIX.
felt unwilling to reproduce them without commentary, a task which
could not properly be performed without going into a discussion of
the whole subject of Bracton's influence.
TRANSLATOR'S NOTE TO CHAPTER XV., P. 124.
According to Bracton, a right which was a servitus of the servient
tenement, was a libertas of the dominant tenement.  F. 220 b.: jura
autem sive libertates dici poterit ratione tenementorum quibus debentur. Servitutes vero ratione tenementorum a quibus debentur, et semper consistunt in alieno et non in proprio, quia nemini servire potest
suns fundus proprius, et nullus hujusmodi servitutes constituere potest, nisi ille qui fundum habet et tenementum, quia praediorum aliud
liberum, aliud servituti suppositum.  Liberum dici poterit quod in
nullo tenetur vel astringitur praediis vicinorum.  Si autem tencatur, dicitur servituti suppositum quod prius fuerat liberum. Liberlates
has therefore here a signification similar to that given by Houard to
the word aisiamenta in the writ in Glanville, XII. 14.  That writer
remarks in his note to Glanville (Trait6s sur les Coutumes AngloNormandes, I. 548): Sous cette denomination (aisianmenta) sont comprises toutes les servitudes prediales, dont on jouit sur les fonds
d'autrui. Reeves, 1. 174, translates Glanville's term aisiamenta by the
word easements, and in commenting (ib. 344, 345) on Bracton, f. 231,
says also: "The writ in Glanville (XII. 14) to the sheriff, commanding that precipias R. quod, etc., permittat IH. aisiamenta sua, etc.,
was preserved with some small differences of form. He was directed
that justicies R. quod, etc., permittat H. habere rationabile estoverium, etc., as the case might be, of wood, turbary qnd the like."  It
is important to observe that Bracton does not here use the word
aisiamenta.  This fact, together with his definition of the word libertates above given, may lead us to infer that he may have here purposely avoided using the word aisiamenta.  If such be the case, the
circumstance is historically interesting in its bearing upon the development' of the existing doctrine relative to the distinction since
established between a profit a prendre and an easement.  (See 7
Mees. & Wel. 63, 69, 77-79, 4 El. & B1. 702, 704, 711.)




APPENDIX.                          175
TRANSLATOR'S NOTE TO CHAPTER XVIII., PP. 141, 142.
In Coggs v. Bernard, 2 Ld. Raym. 915, 916, Holt, C. J., cites this
passage thus: Sed magna differentia est inter mutuum  et commodatum; quia is qui reni MUTUAM accepit ad ipsam restituendam tenetur vel ejus pretium si forte incendio, ruina, naufragio, aut latronum
vel hostium incursu, consumta fuerit, vel deperdita, substracta vel
ablata, etc. Jones (Law of Bailments, 64 x.) points out that in this
reading mutuam  is substituted for commodatam, and adds: "But
what can then be made of the words'ad ipsam restituendam?' There
is certainly some mistake in the passage, which must be very ancient,
for the oldest manuscript that I have seen is conformable to Tottel's
edition. I suspect the omission of a whole line after the word pretium, where the manuscript has a full point; and possibly the sentence omitted may be thus supplied from Justinian, whom Bracton
copied:'At is, qui mutuum  accepit, obligatus remnanet, si forte incendio, etc.'"  Sir W. Jones, Chief Justice Holt, and Dr. Giiterbock,
each, therefore, suggest different emendations.








INDEX.
A.                                      B.
Acceptilatio, 148.                      Bastard eign. and mulier puisne, 130.
Accessio, 101, 104-107.                 Bastards, 126-130.'.Actor sequitur forum rei," 155.       Bastardy, special, 59, 65, 127-129.
Acquisition of possession, 93,98,119,120. Becket, Archbishop, 170.
Acquisition of property, 82, 101-108, Biener, works of, 15, 21, 61, 73, 75,
109, 119.                               173.
Actions, 150-153.                           On the Roman law in Bracton, 56,
Civil, 150, 152.                          57, 62.
Criminal, 150, 152.                     On the date of Bracton, 24-27.
Ex contractu, 139, 152.                 On the Roman law in England, 16,
Ex maleficio, 152.                        61, 73.
In personam, 151, 153.             Bona fides, 119, 126, 127, 164.
In rem, 151-153.                    Bracton, authority of, 67-75, 173, 174.
Mixed, 133, 152, 153.                   Biographical details concerning,
Petitory, 88, 90, 150, 152, 160.          21-23. 28.
Possessory, 88, 90, 150, 152, 160.      Influence of, in England, 67-75,
Quasi ex contractu, 147, 152.             173.
Quasi ex maleficio, 150.                Method of, 38.
Limitation of actions, 118-121.         Name of, 22.
Adoption, 83.                               Place of, in the history of the RoAdvowsons, 37, 63-65, 98, 99.                  man law, 75.
Aisiamenta, 174.                            Relation of, to the subsequent EngAlluvion, 104.                                 lish medieval law books, 60, 68Animals, 102-104.                              72.
Apprehensio, 93, 102, 103.                  Sources and authorities of, 40-55.
Aquseductus, 122.                                Those of domestic origin, 40Ascendants, 126.                                   47.
Assisa mortis antecessoris, 37, 152.             Those of foreign origin, 48-55.
Assisa novae disseisinse, the, 37,159-165.  Style of, 34.
Origin of, 159.                         System of, 35-38.
Object of, 164.                         Use of Azo by, 51-54.
Plaintiff in, 163.                      Use of Glanville by, 44.
Defendant in, 163, 164.                 Use ofjudicial cases by, 41-47.
See Disseisin.                          Use of the canon law by, 63, 66.
Assisa ultimae praesentationis, 37, 99.     Use of the Roman law by, 48-62.
Assisa utrum, 37.                           Writers treating of, 21.
Azo, 38, 51-54, 89.                     Bracton's Work, 17, 23.
Biographical details concerning,        Date of its composition, 23-30.
51..                                 Date of its circulation, 67.
Works of, 51, 53.                       Editions of, 73.
Bracton's use of his works, 51-54.      Manuscripts of, 74, 175.
His great influence upon Bracton,       Analysis of, 35-38.
51, 53.                               Character of, 32-34.
(177)




178                                INDEX.
Bracton's Work, compared with Glari- Dates of the cases in Bracton, 24-27,
ville's, 32, 34.                        41, 45-47.
Its place in English legal history, Decretals, Bracton's quotations from
67.                                     the, 63.
Britton, 72, 73.                             Quotations from the, in Fleta, 70.
Decreturn, Bracton's quotations from
the, 63.
C.                    Delict, 147, 152.
Delivery. See Traditio.
Canon law, 48, 63-66, 98, 126, 128, 131, Depositum, 142.
155, 159, 161, 166.              Digest, Bracton's use of the, 50, 51.
In Bracton, 63-66.                  Disseisin, 91, 100, 159-164.
Cases, judicial, 24-27, 41-47.          Doarium, 135.
In the English law, 41.             Dominium.  See Property.
Bracton's use of, 24, 41-44.        Donatio, 36, 109-117.
Detailed statement of cases in Brac-    Conditionalis vel sub modo, 24,
ton, 45-47.                             110, 116, 117.
Charters, 64, 139, 144, 156-158.             Inter conjuges, 110, 111.
Exceptions to, 157, 158.                Inter vivos, 110.
Probate of, 156, 157.                   Mortis causa, 110, 133, 134.
Proof by, 156-158.                      Post factam feloniam, 111, 112.
Children, 126.                               Propter nuptias, 111, 135.
Code, Bracton's use of the, 50-52.           Simplex, 110.
Coke, use of Bracton by, 73.            Dos, 110, 135-137.
Commodatum, 48, 141, 175.                    Adventitia, 135.
Communia pasturse, 98, 123.                  ~Estimata, 136.
Conditions, 116, 117.                        Inoestimata, 136.
Confusio, 108, 148.                          Parapherna, 136.
Constitutions, 62.                           Profectitia, 135.
Constitutum possessorium, 97.                Actio dotis, 136, 137.
Consuetudo, 80, 101.                         Dotis constitutio, 111.
Consultation, writs of, 43, 66, 136, 137. Dower, 110, 135-137.
Contracts, 138-149.                     Droit droit, 100.
Bonee fidei, 144.                   Duplicatio, 153.
By words, 141, 142.
By writing, 138-140, 143, 144, 148.
Consensual, 144, 147.                                E
Innominate, 116.
Real, 141, 142.                     Earnests, 145.
See  Obligations, Quasi-contract, Easements, 174.
Stipulations.                    Ecclesiastical jurisdiction. See Courts
Contumacy, 38, 65.                             Christian.
Conventions, 138-140.                   Edward the Confessor, laws of, 40.
Corpus juris, list of Bracton's express Edward I., 29, 68, 72.
citations of the, 50. 51.        Emancipation, 83.
Courts Christian, 14, 43, 61, 64-66, Emptio, 59, 138, 144-146.
128, 129, 154.                   English law, early periods of the, 14-16.
Crimen lese9 majestatis, 168.               In A.). 1150-1300, 16.
Crimes, 166, 167.                            In Glanville's day, 31, 32.
Criminal law, 36, 64, 147, 166-170.          In Bracton's day, 33, 34, 40, 41.
Crown, power of the, 29.                    After Bracton, 67, 68.
Succession to the, 28, 132.         English medieval law books, 17, 60, 68,
Curia Regis, 32, 62, 133.                      72, 79.
English sources and authorities, Bracton's, 40-47.
See Cases, Writs.
D).                    Equity, 80.
Error, 113.
Date of Bracton's work, 23-30.          Errors of Roman law in Bracton, 59
Date of the case of Peter of Savoy (36         60, 113.
or 46 H. III.), 25-27.           Exceptions, 147, 153, 158.




INDEX.                                  179
F,                     Intestacy, 125.
Intrusion, 100, 121.
Familie herciscundse, 132, 147, 153.    Investiture, 64, 114.
Fee, 87, 100.
Feudal system, 86, 87, 109, 114, 154.
Fitzherbert, citations of Bracton by,
73.
Fleta, 69-72, 79, 88.                                      J.
Authorship of, 72.
Date of, 71.                        John, King, 30, 42, 45, 64, 132.
Relation of, to Bracton, 69-71.     Judges, 43, 154.
Roman law in, 60, 70.               Jurata, 129, 154.
Forisfamiliation, 83, 131.               Jurisdiction, 155.
Foreign sources and authorities, Brac- Jurisprudence, 80.
ton's, 48-55.                       Jura in re, 87.
Forum contractus, 155.                   Jus, 80.
Franchises, 98.                              Civile, 59, 80, 109.
Freehold, 87, 100.                           Commune, 80.
Fructus, 88.                                 Consuetudinarium, 40, 59, 62, 80.
Furiosi, 84, 93, 96.                         Duplicatum, 100.
Furtum, 168.                                 Gentium, 80, 101.
Majus, 88, 100.
Alerum, 88, 100.
Naturale, 80, 101.
(G.                        Non scriptum, 40, 62.
Possessionis, 100.
Glanville, 31-34, 79.                        Proprietatis, 88, 100.
Character of his work, 31, 32, 34.       Privatum, 80.
Bracton's use of, 44.                    Publicum, 80.
Roman law in, 44, 48, 57.           Justitia. 79.
Glossators, 34, 38, 51, 54.
Guerra, 42, 47.
Guerra communis, 42, 47.
Guerra generalis, 42.
Kindred, degrees of, 64.
King, Bracton on the power of the, 29.
-H.                    King's being suable, Bracton's doctrine
concerning the, 29, 30.
Habitatio, 88.                           King's case, the, 28, 132.
Heirs, 125, 126, 131, 132, 152, 164.
Henry II., 31, 61, 64.
Henry III., 23-30, 41, 42, 45, 132.
Hereditas, 125.
Homicide, 169, 170.                                        L.
Houard, on Bracton, 56.
On aisiamenta, 174.                 Law, elementary notions concerning,
79.
Lex, 80.
Legitimacy, 126-130.
IL                    Legitimatio per subsequens matrimonium, 59, 65, 127, 129.
Immovables, law of, 86, 125, 150, 160. Liberi and servi, 81, 82.,Incorporeal hereditqments, 118.         Libertates, 98.
Inheritance, law of, 125-134.            Libertates and servitutes, 174.
Injuria, 168, 169.                       Libertini, 82.
Institutes, Bracton's use of the, 35, 44, Litis contestatio, 155.
49, 50, 55.                       Livery of seisin, 114.
Intentio, 155.                           Locatio conductio, 59, 138, 144, 146,
Interdicts, 152, 159, 160, 162.                 147.              r
Interrogations, 155, 156.                Long, Discourses, 21, 135.




180                                INDEX.
MV.                    "Pater est quem nuptiae demonstrant,"
83,130.
Mandatum, 144.                          Partidas, the Siete, 75.
Maritagium, 136.                        Pateshull, Martin de, 28, 43, 47, 61,
Marriages, putative, 126, 127.                 129.
Metus, 112, 147, 158, 161.              Persons, law of, 81-84.
Missio in seisinam, 156.                Piscatio, 102.
Modus, 116.                             Pignus, 142, 146.
Movables, law of, 86, 125, 150, 160.    Placentin, 38, 54.
Monsters, 83.                           Possession, 87, 88, 90-100, 115, 116,
Munus, 154.                                    118-120, 159-165.
Mutuum, 48, 141, 175.                       Acquisition of, 93, 98, 119, 120.
Loss of, 91, 97.
Grades of, 99, 100.
Natural and civil, 90-92, 158.
Alieno nomine, 92, 163, 164.
N.                         Wrongful, 115.
Justa and injusta, 92, 164.
Negotiorum gestio, 97, 147.                 Vera and imaginaria, 92, 93.
Nocumentum, 162.                            Possessio vacua, 92, 94, 95.
Novatio, 148.                               Longa possessio, 118, 119.
Novels, Bracton's use of the, 50.           Animus possidendi, 93.
Non usus, 99, 124.                           In possessione esse, 92.
Nuda promissio, 113.                         Repossession, 91, 162.
Nudum pactum.  See Pacta nuda.               See Seisin, Quasi-potsession.
Potestas dominica, 81.
Potestas, patria, 82, 83.
Prescription, 118, 119, 124, 147.
Presentation, right of, 98, 99.
O.                    Profit a prendre, 174.
Obligations, 138-149.                   Price, 144, 146.
Origin of, 138, 147.               Probatio plena, 156.
Extinction of, 147-149.                 Semiplena, 64, 155
From contract, 138-147.            Procedure, 154-158.
From quasi-contract, 147.          Prohibition, writ of, 43, 65, 129.
From delict, 147.                  Property, right of, 86-88, 99, 100, 119,
From quasi-delict, 147. 
Verbal, 141-143.
Real, 141, 142.
Contracted by writing, 139, 143,
144, 148.                   Q.
Contracted by consent, 144, 147.   Quasi-contract, 138, 147, 152.
See Contracts, Stipulations.         uasi-     ct 18, 147, 152.
Occupatio, 93, 101-104.                 Quasi-delict, 138, 147, 152.
Operis novi nunciatio, 13, 162.         Quasi-possession, 93, 98, 99, 123, 136,
Outlawry, 167, 168.                          A.          
Acquisition and loss of, 98.
Quasi-traditio, 123, 124.
P.
Pactum de non petendo, 147.                              R.
Pactum displicentise, 146.
Pacta and contractus, 140.              Real rights, Roman, 86.
Pacta nuda, 114, 139, 140, 144, 145.    Realty, law of, 86, 87, 100, 120.
Pacta vestita, 140.                         See Immovables.
Pactorum, vestimenta, 140.              Rechte Gewere, the, 119, 120.
Parliament, 27, 29, 129, 130.           Reeves, History of the English law, 16,
Partition, 132, 133.                           21.
"Partus sequitur ventrem," 81.              On the Roman law in Bracton, 56.




INDEX.                                 181
Replevin, 151.                          Statutes, [See 22 Henry II., Assizes of
Replicationes, 153.                            Northampton, 159, 160].
Representatives, 96, 97.                    20 Henry III., Merton, 24, 44, 120,
Representation, free and non-free, 96.         121.
Representation, right of, 131, 132.         21 (40) Henry III., de anno bissexRes, 85.                                       tili.
Communes, 85.                           42 Henry III., Provisions of OxCorporales, 85.                           ford, 26, 29, 30.
Incorporales, 85, 122.                  43 Henry III., Provisions, 26, 120.
Nullius, 85, 102.                       51 Henry III., Edict of Kenilworth,
Publicse, 85.                             30.
Religiosse, 85.                         52 Henry III., Marlbridge, 26, 29,
Sanctue, 85.                              120.
See Things.                             3 Edward I., Westminster I., c. 39,
Richard, Earl of Cornwall, 25, 27, 28.         p. 23.
Roman law, in Bracton, 48-62, 133.          11 Edward I., Acton Burnel de
The extent of Bracton's use of the,       mercatoribus, 71.
40, 48-55, 56.                        13 Edward I., Winchester, 71.
Its importance in Bracton, 56-62,       13 Edward I., Westminster II., 71.
79.                                   29 Charles II., c. 3 ~ 17, p. 145.
In England, 13-17, 48, 49, 53, 60- Staunford, use of Bracton by, 73.
62, 79, 105, 166.                Succession, 125, 126, 131, 132.
History of the, in England, 14-17. Suicide, 170.
Supposititious children, 130, 131.
S.
T.
Sanity, 83.
Savigny, History of the Roman law in  Tenure, 87.
the middle ages, 15, 21.         Terce, 135.
Savoy, date of the case of Peter of (36  Testamentary power, 125.
or 46 H. III.), 25-27.           Testaments, 61, 125, 133.
Seals, 139, 157, 158.                   Theft, 168.
Seisin, 90.                             Thesaurus, 108.
See Possession.                    Things, law of, 85.
Seisina libertatis, 82.                     Division of, 85.
Seisina praesentandi, 98, 99.               Interests in, 86-88.
Selden, Dissertatio ad Fletam, 16.          Comparison of the  Roman  and
Servi, 81, 82, 92, 93, 96.                     English systems as to the law
Servitutes, 98, 99, 122-124, 174.              of, 86-88.
Servus communis, 82.                    Thornton, Summa de legibus, 68.
Sex, 83.                                Title, 119.
Societas, 144.                          Traditio, 90, 94-97, 113-116, 123.
Solutio, 147, 148.                          Longa manu, 95.
Sources, Bracton's English, 40-47.          Brevi manu, 95.
Bracton's foreign, 48-66.               Symbolical, 95.
Specification, 107, 108.                    Conflicting traditiones, 115, 116.
Spence, Equitable Jurisdiction of the       See Quasi-traditio.
Court of Chancery, 16.           Triplicationes, 153.
On the Roman law in Bracton, 56.
Spoliatio. See Disseisin.
Stipulations, 139-142.
Statuliberi, 82.
Statu-servi, 82.                                         U.
Status, pprsonal, 81.
Statutes, 62.                           Usucapio, 59, 99, 118-121.
[See 10 Henry II., Constitutions of Usufruct, 87, 88, 92.
Clarendon, 61, 160].             Usus, 88, 98, 124.




182                                INDEX.
V.                     Witnesses, 64, 133, 154, 156, 157.
Wreck, 102, 104.
Vacarius, 14, 17, 54.                   Writs, in Bracton, 44, 45.
Venatio, 102, 103.                           Of consultation, 43, 66, 136, 137.
Villains, 81, 82, 93, 96.                    Of entry, 38.
Vis, 112, 141, 161.                          Of intrusion, 121.
Of prohibition, 43, 65, 129.
Of right, 38, 120, 153.
V.
Wager of law, 64.                                        y.
War, internal, 42.
Warranty, 29, 38.                       Year books, Bracton's authority during
William the Conqueror, laws of, 40.            the period of the, 73, 173, 174.




ERRATA.
Page 22 note (b) 1. ult. for Dudg. read Dugd.
p. 37 note (p) 1. 4, after resembling insert in some respects.
p. 40 note (c) 1. 4, for legis read leges.
p. 51 note (e) 1. ult. for 43, 21 read 43. 21.                           C 
p. 53 note (j) 1. 4, for incorporeales read incorporales.
p. 119 1. 24, for exedit read excedit.
p. 122 1. 1, and inset note, for incorporeales read incorporales,
p. 158 note (x) 1. 2, for hese read these.








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