Bracton treats Locatio-Conductio very briefly 1; the fixing of the price is its investitive fact. The hirer's liability 'qualem diligentissimus paterfamilias' is taken from the Institutes, and the liability of the hirer's goods in his hired house for rent is treated on Roman lines. In the first half of the third Book the influence of the Roman Law is very marked: much of the text is taken word for word from the Institutes, and parts are derived from the Digest and from Azo. The scantiness of Bracton's exposition of the law of contracts is explained, on the one hand by the slight importance of personal property, on the other by the jurisdiction of the Ecclesiastical Courts over all promises not susceptible of proof by the strict rules of the Common Law, as laesiones fidei, breaches of faith 2. The first four chapters are composed almost entirely of Roman material 3. Indeed the form, which is Institutional and Academic, lends countenance to the supposition that Bracton lectured on the Civil Law at Oxford. 'Actio' is defined, following the Institutes and Azo, as 'jus prosequendi in judicio quod sibi debetur,' and the subsequent explanations are taken from Azo. The Actio 5 is said to arise from preceding obligations as a daughter from a mother, the comparison being Azo's. The division of obligations, 'orientes ex contractu, vel quasi, sive ex maleficio vel quasi,' is taken from Justinian, and the subsequent doctrine of vestimenta pacta is also civilian. Obligations are defined in the words of Azo, following the Institutes, as juris vinculum, quo necessitate adstringimur ad aliquid dandum vel faciendum;' they are divided, re, verbis, scripto, consensu; and real obligations (mutuum, commodatum, depositum, and pignus) are dealt with in the words of Justinian, omitting the technical terms of the Roman actiones. This passage is not filtered through Azo, but taken direct from the Institutes, neither does Bracton appear to have followed Glanvil in this, the most Roman part of Glanvil's work. The passage as to liability for accidental loss is obscure, but the printed version appears to contradict Glanvil's statement of the English Law 10, which, following an older law, made the commodatarius liable for casus, while Bracton, 1 Br. ff. 62, 62 b; Just. iii. 24, 5, et al.; Güt. pp. 146, 147. 2 Glan. x. c. 8, 18; Bracton, f. 100 a-'de quibus omnibus conventionales stipulationes omnino curia regis se non intromittit nisi aliquando de gratia.' Pollock on Contracts, 139, 4th ed.; Güt. p. 139. ff. 98 b-104 b. Prosequendi, printed by the 1569 edition and Twiss, is probably a printer's error. Azo and the Institutes have persequendi. Azo, 1118; Inst. iv. 6, pr. 5 Br. f. 99; Azo, 1103. Just. Inst. iii. 13, 2; Güt. 140. Br. f. 99; Azo, 304; Inst. iii. 13, pr. Owing to probable corruption of the text. 19 Gl. x. 13. 8 Inst. iii. 14. Lord Holt quotes a different version. in accordance with the Institutes, relieves him, if he has acted as 'diligentissimus paterfamilias 1.' While the general treatment of obligations verbis, per stipulationem' is Institutional 2, Bracton makes an important adaptation to English procedure. A simple stipulation, as we have seen, could not be sued on in the King's Courts, as being incapable of proof. After suggesting that a deaf man might make a stipulation by nods or writing, he adds 'et quod per scripturam fieri possit, stipulatio et obligatio videtur, quia si scriptum fuerit in instrumento aliquem promisisse, perinde habetur ac si interrogatione praecedente responsum sit,' and though Bracton is silent, Fleta expressly says that a writing without seal will not suffice. Again: Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere, sive pecunia numerata sit, sive non, obligatur ex scriptura, nec habebit exceptionem pecuniae non numeratae contra scripturam, quia scripsit se debere.' This was contrary to Roman Law which allowed such an exception to be used within two years. In this practical adaptation of the Roman Law, by merger of the obligations verbis et litteris, Bracton found a connecting link between his Roman principles and the English Law: with a similar object he omits the rule 'alteri stipulari nemo potest,' and makes such a stipulation possible even sine poena. Apart from these differences the minor distinctions of the Roman Law are faithfully reproduced, even to the extent of speaking of a judicial stipulation as 'quod fit jussu praetoris.' But it may well be doubted whether these extracts have had any substantial influence upon English Law. Bracton just touches on obligations ex consensus, but as he has already dealt with sale and hiring, and as purely consensual contracts could have no place in the King's Courts, he does no more than mention them. Similarly with obligations quasi ex contractu he merely mentions the heads contained in the Institutes, using the technical Roman terms, and says no more. The persons through whom an obligation is acquired 10, the means by which an obligation is dissolved, and the general rule, 'obligatio dissolvitur eisdem 1 Güt. 141 n.; Br. f. 99 b; Inst. iii. 14, 2; Fleta, ii. 56, § 5, follows Bracton. 2 Br. ff. 99 b, 100; Inst. iii. 15 and 19. 3 Br. f. 100, at the end of a passage taken from Dig. 44, 7, 1, 15. ♦ Pollock, 138; Br. f. 100 b; Holmes, 272; Fleta, ii. 60, 25; Güt. 144. Cf. Br. f. 101, 'obligatio tollitur, si dicatur. et responditur, vel scribatur.' Inst. iii. 21, pr. (before Justinian, 5 years). 6 Cf. Just. Inst. iii. 19; 19 and 21; Br. f. 100 b. 7 e. g. 'Stipulationes pure vel modo, sub conditione; facta et loca in stipulationibus, judiciales et conventionales stipulationes; stipulatio praepostera.' 8 f. 100 b. 10 Br. ff. 100b, 101; Inst. iii. 28 and 29. * Cf. Br. f. 100 b, with Inst. iii. 27. modis quibus contrahitur,' with several technical terms 1, are taken from the Institutes. Delicts and quasi-delicts are also treated very shortly, the examples of a quasi-delict being the Institutional one of a judge. knowingly giving a wrong judgment 2. Injuria is defined, after Justinian, as quod Jure non fit, and the Roman rule of non-liability of heirs for their ancestor's delicts is followed 3. Bracton identifies actions with placita or pleas1: he adopts both Glanvil's division of civilia-criminalia, and Azo's of realia, personalia, mixta, which seems a combination of the Institutional divisions in rem, in personam; and rei vel poenae persequendae vel mixtae. The term crimina capitalia is from the Institutes, though the illustration is changed. Personal actions are defined in the words of Azo, and Bracton adds that the heir is bound 'nisi fuit poenalis.' Personal actions er maleficio are again divided into 'quae persequuntur poenam, vel ipsam rem et poenam:' while actions in rem are divided, as in Glanvil, into petitory, super proprietate rei, and possessory, super possessione 10. The actio mixta is defined in Azo's words 'tam in rem quam in personam, quia mixtae habent causam ad utrumque 11,' and a number of the following divisions are taken from the Roman Law 12. The Institutional division of Interdicts; causa recuperandae, adipiscendae, retinendae possessionis; is applied by Bracton to actions, and identified with the leading Assizes 13. Under actiones recuperandae possessionis causa he places the Assize of Novel Disseisin, and identifies it with the actio unde vi' (sic). Actiones adipiscendae possessionis causa include the Assize Mort d'ancester, Exceptionem doli; pactum de non petendo; exceptionem metus; exceptionem jurisjurandi; exceptionem rei judicatae; acceptilatio, novatio; quasi traditio;' and the subject-matter of the stipulatio Aquiliana, though the name is not used. 2 Br. f. 101; Inst. iv. 5, pr. Gl. i. 1; Br. f. 101 b. 3 Inst. iv. 4, pr.; cf. Br. f. 101 b. Br. f. 101 b; Azo, f. 1119; Inst. iv.; 6; 1, 18-20; Coke, Inst. ii. 21, 285. 8 Br. f. 102; Azo, 1119, quae competunt contra aliquem ex contractu, vel quasi, ex maleficio, vel quasi, cum quis teneatur ad aliquid dandum vel faciendum.' The phrase 'nativae, ex contractibus,' as applied to them is Azo's, who contrasts it with ‘dativae ex legibus.' Azo, 1131. 9 Cf. Inst. iv. 6, 18; Azo, p. 1126. 10 Glan. i. 3; Azo, f. 1119; Inst. iv. 6, 1; Br. f. 103; Güt. 151. 11 Azo, 1126; Br. f. 102 b. 12 6 e. g. simplices, duplices; perpetuae, temporales,' Br. f. 102 b; Azo, 1129, 1130; Inst. iv. 12, pr. transitoriae; Azo, 308; Br. f. 103; 'in simplum, duplum, triplum, quadruplum, Azo, 1127; Br. f. 103; Inst. iv. 6, 21, 24; directa-contraria,' Br. f. 103, to which Bracton adds 'indirecta; 'confessoria-negatoria,' Azo, 218; Dig. 8, 5, 2 pr. though Bracton makes 'actio confessoria, cum dicat quis aliquem rem corporalem suam,' instead of limiting it to the assertion of a servitude, as in the Roman Law. He also uses the term praejudicialis of an actio instead of a formula, Br. f. 103, and several terms not otherwise used in English Law, e. g. Actio legis Aquiliae-vi bonorum raptorum. 13 Br. f. 103; Inst. iv. 15, 2. identified with the 'actio quorum bonorum.' An instance of actiones retinendae possessionis is found in 'interdicta ne quis alteri vim fiat.' In treating of 'quibus competant actiones,' Bracton appears to vary from Roman Law. The Roman actio furti was open to any one cujus interest rem salvam fore, but not to the owner, if he had an action against the person from whom the goods were stolen. Bracton allows the owner an actio furti sive condictio, against the thief or his successor. Now the bailee at English Law1 had an action against the thief, and for that reason was liable over to the owner, who according to Roman Law would therefore have had no actio furti. Probably Bracton means by actio furti sive condictio' no more than condictio, in which case he accords with the Roman Law which gave the dominus a vindicatio, actio ad exhibendum or condictio, for the thing itself, though the actio furti was not open to him2. The Actio legis Aquiliae 3 is thus adapted to English Law, 'Actio legis Aquiliae de hominibus per feloniam occisis vel vulneratis dabitur propinquioribus parentibus, vel extraneis homagio vel servitio obligatis, ita quod eorum intersit agere,' which appears to refer to the wergeld while anticipating Lord Campbell's Act. Other Roman actions, actio injuriarum, quod metus causa, de dolo, are briefly dealt with. The Actio de vi is described as duplex, 'scilicet rei restitutoria et poenalis,' whereas the Institutional meaning of the term is 'quia par utriusque litigatoris in his condicio est nec quisquam praecipue reus vel actor intelligitur, sed unusquisque tam rei quam actoris partem sustinet.' In dealing with the 'Actio quod vi aut clam" Bracton follows the Digest closely, except that so far as the Interdict is penal, or for compensation, it could not be brought against the heirs according to Bracton, whereas the Digest gave it to and against heirs 'in id quod ad eos pervenit.' The Actio sive Interdictum de itinere actuque privato is cited verbatim with the prefix, Ait enim praetor. At this point, Bracton's close following of the Institutes ceases, though the influence of the Civil and Canon Laws is still noticeable. Frequent Roman citations are found, especially towards the end of the treatise, on the question of the order in which actions 1 Holmes, C. L. 175. 2 Cf. Inst. iv. I, 19. 3 Br. f. 103 b, the rule as to actio vi bonorum raptorum is taken from Inst. iv. 2, 2. Br. f. 103 b; Inst. iv. 6. 5 Ibid.; Inst. iv. 6, 27; Dig. 4, 2, 14, 3. 6 Inst. iv. 15, 7. Br. f 104; Dig. 43, 24, 15, 3, Bracton's clause 'sed datur in eo (sic Twiss), quae sunt restitutoria,' may be meant to cover this. 8 Br. f. 104; Dig. 43, 19; 1 pr. Cf. actio praejudicialis,' f. 104, 'crimen falsi,' f. 104 b, the passage on judicium, f. 106, taken from Azo, p. 158, and on munus, f. 106 b, from the Canon Law and Code, which is expressly cited (Cod. 9, 27. 3); Güt. p. 154. should be tried, where in two folios there are found eleven quotations from the Digest and Code, and one from the Canon Law1. Bracton cites the well-known Roman maxim, 'quod principi placuit legis habet vigorem,' with the addition of a quotation apparently from the Lex Regia which is expressly referred to: the distinction between ordinary and delegated judges is also derived from the Canon Law2. In short, the whole treatise shows considerable study of the Roman Law, and is largely made up of Roman material, though it may be doubted whether it practically affected the English courts in any marked degree. I have now completed my examination of the first of the portions into which Bracton's work has been divided, but space fails me to deal here with the other two parts 3. There remains, however, the important question whether, as regards this Roman Law which Bracton incorporated, he did, as Spence and Güterbock hold, only reproduce what was already held as valid law in England, being thus a trustworthy source of law, and not a plagiarist; or, as Sir Henry Maine suggests, did he actually introduce new Roman matter as English Law? There seems to me to be very slight materials in existence for a positive answer to this question; but I myself should incline to agree with Sir H. Maine (though I think his estimate of Bracton's indebtedness is as excessive as that of Mr. Reeves is under the mark 6), that, as regards the first part of Bracton's work, it was new matter to the English Law, directly copied from Roman sources, to fill up a framework of his first three books which he had adopted from the Institutes. As to the second part, I think that Bracton has both introduced new Roman matter, and reproduced English Law, derived from the Roman by the decisions of other clerical judges, and then recognized as the law of the land. In considering Bracton's first Book, a conjecture was offered as to his method of writing, and we have found no reason to depart from the opinion there expressed. English Law was reduced to order on a Roman framework, furnished with many Roman terms, its gaps filled up with actual Roman matter so long as this was not inconsistent with English Law. At the same time Roman influences, acting on the judges, vary some existing English rules, such as those as to nuptial donations, curtesy, and forfeiture of earnest. But I know of no case where Bracton has cited Roman Law, the previous English rules being to a contrary effect, unless 1 ff. 114, 114 b. 2 Br. f. 107, 108; Güt. p. 155. 5 Maine, Ancient Law, p. 82. 3 4 v. supra, pp. 429, 430. Spence, i. 123, 124; Güt. 57. one third of matter, and whole of form:' Reeves, 'not three pages' (i. 529). 6 Maine, 7 v. supra, p. 431. |