*121 Action of Trespass-Furtum-Authority of Bracton in modern times.

*It may be here remarked, that amongst the other important improvements in the law that we discover in this treatise, is this, that minor personal injuries, though considered to be in the nature of crimes and classed under the head of the pleas of the crown, were the subject of civil actions for a just compensation (a), but they exclusively belonged to the King's Court. Here perhaps we may discover the first trace of the comprehensive class of actions for trespasses, and other injuries alleged to have been committed "vi et armis," (a Roman judicial expression,) of which the Court of King's Bench had original cognizance (b). Stealing, "furtum," the definition of which was taken. from Justinian, was now, according to the doctrine of the Roman law (c), a civil injury, but it still was ranked also as a crime, so that the person who had suffered the loss might take either course (d).

It may not be improper here to observe, that Bracton is still occasionally quoted. Lord Chief Justice Parker, on referring to a passage in Bracton, said, "I do not say that the whole of the passage in Bracton is now good law, it was all good law at the time he wrote, and all of it that is adapted to the present state of things is good law now" (e).

In the reign of Edward the First, from whose time, according to Lord Hale, the whole scheme of English law may date its existence (ƒ), many *treatises appeared. The principal of these are; that entitled Fleta, which was written by some learned person (g) confined in

[*122]

ipse dominus non sufficiat, eligere debet viros sapientes, &c. cujus personam in judicio; et judicando representant," ib. fo. 198. (a) "Nunc dicendum de minoribus, et levioribus, criminibus, quæ civiliter intentantur sicut de actionibus injuriarum personalibus; et pertinent ad Coronam, eo quod aliquando sunt contra pacem Domini Regis," Bracton, iii. c. 36, fo. 155, et v. 154 b, "Si querens adjiciat de pace Domini Regis infracto, Vicecomes non debet intromittere," &c.

(b) Bract. 104 b; Finch's Law, 340. F. N. B. 86, 92. v. sup. p. 114, et infra.

(c) In Just. Inst. iv. tit. i., it is classed under obligationes ex delicto. In their ruder state, the Romans treated theft, which was usually, no doubt, accompanied with violence, only as a crime. Aul. Gell. xii. 18. It was the Pretors who brought about this change, v. Inst. iv. 1, 4, et inf. n. (d). Rapina, robbery, subjected the offender to criminal process as well as a civil action, Inst. iv. tit. 2.

(d) Bracton, 150 b; but subsequently the punishment of death was inflicted in all cases of theft, and this is one of the distinctions between the two laws brought forward by C. J. Fortescue, c. 46; Amos, p. 172.In the progress of society and of law, as connected with it," says Sir H. Seton, p. 18, "it may be observed that in barbarous times in the case of injuries with violence, compensation is resorted to as a substitute for private revenge. In more advanced periods such injuries become subjected to punishment. In a state of further advance

So

ment, they again become a subject of com-
pensation also. The Court of Chancery
appears to have been a considerable instru-
ment in its progress. Traces of a like pro-
gress are to be found in the Roman law."
In confirmation, v. sup. n. (c), and Gaius,
iii. § 224, p. 296, 324, and p. 358.
"Pretor ait, unde in eum locum quo vulgo
iter fiet, vel in quo consistetur, dijectum
vel effusum quid erit; quantum ex ea re
damnum datum factumve erit, in eum qui
ibi habitaverit, in duplum judicium dabo-
in factum actio est.' Dig. ix. 3, 1, 4; and
see Just. Inst. iv. 3, 9, and Gibbon, viii.
p. 89.

(e) See the judgment of Best, Justice, Blundell v. Catterall, 5 Barn Ald. 282. In that case one of the main authorities relied on, was a passage in Bracton, lib. i. c. 12, s. 6, as to the rights of the public on the banks of navigable rivers: it was objected to as authority, because it was taken from Justinian, ib. p. 281.-It is to be collected from the argument and judgment in that case, that Bracton himself is not now of authority, unless confirmed by decision; see particularly the opinion of Ashhurst, J., quoted p. 301.-In two tracts (Law Magazine for Dec. 1844,) over which I have just cast my eye, I find Bracton twice resorted to on two different subjects: and see Reeves, ii. 571.

(f) Hale, C. L. p. 156..

(g) Dr. Burn, however, says the author wrote in the reigns of Edw. II. and III. p. xxxiii.

Other Treatises-Authorities on which they were founded.

122

the Fleet Prison, about the thirteenth year of Edw. I; that which was written by Britton, who is supposed to have been a judge; one by Gilbert de Thornton, who was a Chief Justice; and another entitled the Mirror of Justices. Bracton's work is, in the main, the ground-work of all these productions (a). The sources from which these several treatises, particularly Bracton's, were compiled, as they exhibit the rudiments of the law of the present day, naturally excite our curiosity.

When these treatises were compiled, the German legislation of the codes of the Anglo-Saxons had become wholly superseded; nor are the Conqueror's Anglo-Norman Code, or the treatise in the Red Book of the Exchequer, entitled the Laws of Hen. I., ever referred to in them (b). Some, indeed, of the customs which grew up in the Anglo-Saxon times, moulded, so as to suit the circumstances of society by the decisions of the Justices in Eyre, are to be recognized; the doctrine of tenure in particular, the sources of which have already been pointed out, which commenced in the Anglo-Saxon times, and was made universal at the Conquest, is the foundation of the system of jurisprudence as to property in land, which is to be found in these treatises. But a great proportion of the doctrines which we find in them, are there presented for the first time, (at least, in the shape in which they appear,) if the documents which have been handed down to us are all that had previously existed relating to the law. These doctrines no doubt had been long previously recognized in the King's Court: new subjects of litigation had, as before observed, been brought before that tribunal, and novel doctrines arose on the change in the tribunal to which litigated questions were now submitted; and the doctrines which governed that tribunal which had then exclusive jurisdiction over these various subjects, necessarily became the common law of the land. For the sources of most of these doctrines we must look to other monuments than the indigenous codes and records of Saxon and Norman Britain.

The school of Vacarius, in which Bracton and many others of the judges had studied, had rendered accessible to all, a body of laws which contained provisions applicable in specie to most, in principle to *all, the questions that could be presented for judicial decision. To have neglected to take advantage of the assistance which was [123] thus offered, would have argued a high degree of presumption, or gross and culpable ignorance; neither is to be imputed to the founders of our system of jurisprudence.

A reference to the treatise of Glanville, but more especially to the more comprehensive one of Bracton, (neither of whom professes to treat of any law then for the first time introduced, or to quote authorities not before referred to,) plainly shows, that the doctrines of the Roman law had been before (c), and were then largely resorted to in the King's

(a) Reeves, ii. 89. Some of the judicial records and some reports of pleas decided in the reign of Edw. I. are extant. Many acts of parliament relating to the law and to judicial proceedings were passed in this reign, some of which will be after noticed. See Hale, C. L. p. 157.

(b) The laws of the Anglo-Saxon kings are as different from those of Glanville as

the laws of two different nations." Madox; cited Hallam, M. A. ii. 406. Bracton, as before observed, refers to the laws of Edward in regard to the doctrine of Francpledge, fo. 124 b.

(c) V. sup. p. 83 and 108. The subsequent writers copy Bracton in a way that shows that his reference to the Roman law was no novelty or matter of surprise. Glan

123 Doctrines of the Roman Law incorporated—particularly by Bracton.

Court. To this, perhaps, we may attribute the rapid establishment of the scientific system of jurisprudence, which has been remarked by Sir William Blackstone, indeed by almost every writer, as having grown up in the interval including the reigns of Henry II. and Edw. I. (a).

Glanville, indeed, though in stating the principles which govern the important subject of contracts he has evidently borrowed from the Institutes of Justinian, avoids all notice of the sources from which they were obtained (b). Bracton, also, introduces from the Roman Law, without reference to their source, the great leading principles of Justice (c), and numerous Roman maxims and doctrines, on a great variety of subjects. The Roman doctrines relating to contracts and obligations (d) which he notices and explains, appear to have been incorporated in the Common Law as administered in the King's Court, and by the Justices in Eyre, long before his time. Bracton adopts the titles, and to a great extent, the method of the Institutes (e). The term Pretor is sometimes used to designate a common-law Judge (f). Jus civile is distinguished from jus prætorium, which, in Bracton's "sense is the law formed by the [*124] decisions of the Judges (g). This jus prætorium has been continually enlarged by the Common Law Judges, so as to form a very considerable proportion of the common law of England.

may

But in numerous instances Bracton expressly quotes or refers to the Institutes (h), the Digest (i); and the Code (k), even when treating of assizes of novel disseisin (1), to which some doctrines were applied, which be found in the Roman law. Sometimes he has taken the summary or digest of the Roman law compiled by Azo as his guide (m). Bracton also refers to the technical actions of condictio rei furtiva, actio vi bonorum raptorum, actio legis acquiliæ, &c., as being known forms of action (n); also to the obligation by stipulation, that is, by interrogation and response (o). Roman names also are adopted in the illustrations, precisely after the manner of the Roman lawyers (p). Bracton also adopts from the Insti

ville says, "The proceedings in the King's Court are grounded upon the laws of the kingdom, or reasonable customs, established by long usage," Pref. to Glanville.

(a) It is not a little remarkable that in the reign of Edw. I. the English Justinian, when, as above observed, the English law is considered to have attained to a high degree of perfection, Franciscus Accursii (i. e. son of the great Accursius) was brought to England by the King, Dr. Duck, p. xxii. And he is found as one of the council, 4 Edw. I., Palgr. Council, p. 134, note L. See Additional Note 2, infra.

(b) However, we can trace in Glanville the respect which was paid to the Roman laws by his pointing out in particular instances how the English law differed from the Roman, see lib. vii. c. 1. and c. 15.

(c) int. al. "Justitia est constans et perpetua voluntas jus suum cuique tribuere," Bracton, fo. 26. Inst. i. tit. 1; many such instances might be cited, particularly in lib. i. c. 3, 4.

(d) See particularly as to furtum, Bract. 150 b, compared with Just. Inst. iv. tit. 1,

sup. p. 121; and fo. 100 b, de obligat. ex contractu, &c.

(e) De rerum divisione-De acquirendo rerum Dominio, &c.-De actionibus, &c. So he adopts the Roman distribution of actions into real, personal and mixed, lib. iii. c. 3; and he uses the Roman terms "exceptiones," "litis contestatio," &c. in describing the prevailing system of pleading. (f) Fo. 3 a & b, 100 a, &c. (g) Bract. fo. 3 c.

(h) V. int. al. 10 a, "ut in Institutis plenius inveniri poterit.”

(i) Int. alia 30 b; Dig. ad leg. Julian. de vi publica, 113 a.

(k) V. Int. al. 16 b, 106 b, 114 a, and 128 b. The quotation 16 b, C. per hos versus "Re, verbis, scripto, consensu, traditione, Junctura, vestes sumere pacta solent,” I

cannot find.

(1) Rei vendicationes, fo. 105 a; ib. 183 b.
(m) See Savigny, iv. p. 99.
(n) Fo. 103 b.

(0) Fo. 15 b, from whence our recogni
zances may have derived their origin.
(p) V. Int. al. 99 b, et v. 2 b, 9 b, 10 a, 10

Rolls of Justices in Eyre—Authority of Roman Laws, &c. 124

tutes (a), the law de libellis (carminibus), famosis (b); other similar instances might be cited.

The other sources to which the writers, et least from the time of Bracton, referred, were the Rolls of the Justices in Eyre, principally if not exclusively, of the reign of Hen. III. (c). These justices, in early times, were generally ecclesiastics (d), and their decisions would no doubt be influenced by the doctrines of the Roman law where they were applicable; indeed, but for the authority of the Roman law having been recognized to some extent at least, by the decisions of the Judges, Bracton, himself a judge, would hardly have ventured directly to cite the books of the Corpus Juris, and that to the extent above described: Ings, Chief Justice of the Common Pleas, 5 Edw. II., expressly declared that the law of the land was founded on the Imperial law (e).

The reverence for the Roman law, which had been traditionally handed down through the clergy, independently of express adoption, must have operated to facilitate its being so largely resorted to when its stores were opened. The most remarkable feature is, that it was taken as of imposing, if not of governing, authority even on constitutional [*125] points. Glanville, in his Preface, which is in part taken almost literally from that prefixed by Justinian to his Institutes, notices and explains the principle "Quod principi placet legis habet vigorem" (f), as if he were commenting on the terms of an act of the English legislature (g). Bracton follows exactly the same course, fortifying the qualifications he introduces not from national sources, but chiefly by references to other passages from the imperial laws (h). To this, namely, a reference to the Rex Legia

(d) Hale, C. L. 141.

(e) Y. B. 5 Edw. II. 148; C. P. Cooper, Append. 553.

(ƒ) Justin. Inst. i. 2, s. 6; Cod. i. 17. 7; Dig. i. 2. 2, 11. Yet we find in the Digest "cum ipsæ leges nulla alia ex causa nos teneant quam quod judicio populi receptæ sant;" adding, "merito ea quæ sine ullo scripto populus probavit tenebunt omnes," Dig. i. 3. 31; thus recognizing the principle that the imperial prerogatives were founded on the will of the people; et v. inf. n. (c). (g) Cum hoc ipsum lex sit, quod principi, &c.;" he adds, "procerum quidem consilio, et principis accedente authoritate," Prol. to Glanville. It was the same with the French jurists, Mably, ii. 368.

cipi placet legis habet vigorem,' quia sequitur in fine legis, cum lege regia quæ de imperio ejus lata est, &c.-i. non quicquid de voluntate regis temere præsumptum est, sed animo condendi jura; sed quod consilio magistratum suorum, rege auctoritate præstante, et habita super hoc deliberatione et tractatu, recte fuerit definitum," Bracton, 107 b. In the latter part of the sentence he probably had in view the edict of Theodosius before cited. Cod. Just. i. 14, l. 8, v. sup. p. 72. Corresponding language was generally held after the Commons became recognized as a constituent branch of the Parliament, "Que le Rey fist les lois per assent des peres, &c., et non pas les peres et la commune," Y. B. 23 Edw. III. 3 b. The edict of Theodosius had its influence in other respects, it recognized a select council besides the senate, v. sup. p. 72, note (i).

Again Bracton says, "Ipse autem rex non debet esse sub homine sed sub Deo et sub lege, quia lex facit Regem," Bract. 5 b, 34 a, 107 b; referring, probably, to "adeo de auctoritate juris, nostra pendet auctoritas," Cod. Just. i. 14. 4. And again, "Item curiam suam videlicet comites barones, quia comites dicuntur quasi socii Regis, et qui habet socium habet magistrum," Bracton, 34 a, et v. 5 b. Referring probably to the comites of the Roman emperors, "cogatur nostrum adire comitatum,”

125 Jus Prætorium of the Common Law-Common Law Established.

and other imperial doctrines, says Mr. Allen (a), we may trace the old doctrines of absolute sovereignty and transcendent dominon which still disfigure our law books (b).

In the face of all this concurrent testimony as to the abrogation of nearly all the aboriginal laws and judicial customs of the Britons, Danes, and Saxons, Chief Justice Popham, in the case of The Union of Scotland and England, before Lord Chief Justice Coke, Chief Baron Fleming and all the members of the Conference, gravely affirmed and without contradiction, that the laws of England had continued as a rock without alteration, in all the varieties of people that had possessed this land, namely, the Romans, the Britons, Danes, Saxons, Normans, and English: which he imputed to the integrity and justice of these laws, *every [*126] people taking a liking to them, and being desirous to continue them, and live by them. That learned judge gave as his authority Chief Justice Fortescue's book on the Laws of England (c). Some subsequent writers have been unwilling to dispute a position coming from such authority and so flattering to national pride; but how far it is to be relied upon the preceding pages will show. To suppose that the system of jurispru dence which prevailed in the reign of Hen. VI., or even Edw. I., under the name of the Common Law of England was of British, or of AngloSaxon, or even of Anglo-Norman original, is, as it appears to me, to assume that the Dome books, and other records of the ancient laws and customs of the nation which have influenced its modern jurisprudence, have been allowed to perish; and that those only have been preserved, which, even within a few years after the Conquest, had become antiquated, and for all practical purposes utterly useless.

But to return from this digression-the power of the king's justices to modify the rigor of the law by applying to its interpretation the principles of Equity, as distinguished from those of strict Law, in certain cases, is expressly recognized by Glanville and by Bracton (d); such modifications constituted a part of the "jus prætorium" which was con

Cod. Theod. xii. 1. 9, &c. The definition of liberty-libertas-is taken literally from the Institutes, Bract. ii. 19. 4. 46 b; Just. Inst. i. 3. 1; see the Additional Note 3 to this Chapter.

(a) On the Prerog. p. 166; see 2 Shower's Rep. 252.

(b) But perhaps they rested on a still higher ground. Bracion, following the ecclesiastical writers of the Anglo-Saxon times, still, as before observed, designates the king as "Vicarius Dei," fol. 5 b, &c.-The Protestant Camden applies to Elizabeth, in her lifetime, the title "Diva," throughout his work, p. 235. 260, &c. edit. 1600; though the pagan process of imperial canonization, from which the title was derived, is described in the same work.

(c) Moore's R. 797. See Fortescue, De Laud. Leg. Ang. c. xiii. and c. xvii.; this chapter is also cited by Lord Coke, in one of the prefaces to his Reports, with approbation (see Amos's note, p. 52, of his edition). Fortescue, in the passages referred

to, begins with the story of Brute and the Trojans, "a tradition divested of every title to belief." Amos's note, p. 39. Indeed, Chief Justice Fortescue's notions on this subject, though supported by the high au thorities above referred to, have been treated by most modern writers, who have examined the matter, as wholly unfounded. See Amos's note, p. 52. But, politically, Fortescue's work has been of immense importance. See Mr. Amos's admirable notes.

(d) Glanville, p. 12 b. 23 b. Ed. 1780. Bracton, fo. 12 b. 23 b. The general defini. tion of Equity, given by Bracton, fo. 3, is "Rerum convenientia, quæ in paribus causis paria desiderat jura, et omnia bene coqui. paret; et dicitur æquitas quasi æqualitas." Plowden, one of the greatest luminaries of the Common Law, in after times, following Aristotle, defines Equity thus, "correctio justæ legis qua parte deficit quod generatim lata est," Comment. fo. 374. Equity will be treated of hereafter.