VINOGRADOFF, PAUL

English

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THE ROMAN ELEMENTS IN BRACTON\u27S TREATISE

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YALE
LAW JOURNAL
Vol. XXXII JUNE, 1923 No. 8
THE ROMAN ELEMENTS IN BRACTON'S TREATISE
SIR PAUL VINOGRADOFF
All students of English legal history must have felt gratified to know
that Dr. Woodbine had succeeded in mastering the difficulties attending
a critical edition of Bracton's text, and the recently published .second
volume of his work' gives them a substantial instalment of the'results
of his scholarly selection and revision of readings. In an article of the
YALE LAW JOURNAL,2 Dr. Woodbine has commented with much acumen
and ripe judgment on the vexed problem of the use made by the famous
patriarch of Common Law of his Roman materials, especially of Azo's
Summa in Institutiones and Summa in Codicem, but also of the original
texts of the Corpus Juris. I am glad to find that Professor Woodbine
sides with me in his general appreciation of Bracton's Romanesque
learning. Instead of marking Bracton down on account of his real or
supposed blunders and misunderstandings,3 he points out that in most
cases Bracton's peculiarities of rendering and interpretation of Roman
doctrines are traceable to the definite plan of using, as it were, Roman
bricks for the construction of an English edifice. Like all other leading
exponents of customary law in the XII and XIII centuries, he was
dominated by a profound reverence for the wisdom of Roman juris-
prudence, and endeavouled to utilise its distinctions and principles for
the purpose of arranging and rationalising the incoherent mass of bar-
baric and feudal custom. The application of such a method could not
fail to produce strange combinations which it is easy to ridicule as
anachronisms. But instead of indulging in somewhat pedantic criticism
'Bracton, De Legibus et Consultudinibus Angliae, edited by G. E. Woodbine,
Vol. II (1922).
(1922) Vol. 31, p. 827.
" See Maitland, Bracton and A o (1895) xix and passim. Goudy in Essays in
Legal History (ed. by P. Vinogradoff, 1913) 223.
29 [75']
YALE LAW JOURNAL
it is more interesting, as it seems to me, to discover the motives which
produced the curiously hybrid formations assumed by Roman doctrines
at the hand of mediaeval legists. 4
As, however, the severe condemnation of our writer is formulated by
Maitland as the result of a painstaking and minute study, it is not
enough to enter a general protest against the treatment of the examinee
by his examiners. It seems necessary to go again through the papers
with care and to discover, if possible, why so many passages of the
Institutes or of Azo have been twisted by Bracton into shapes that do
not correspond to their plain and direct meaning. We might not merely
exonerate a famous Judge in respect of irreverent censures, but also,
perhaps, observe some characteristic indications of the peculiarities of
mediaeval juridical thought. Professor Woodbine has given a' good
example of such a rehabilitation by his analysis of Bracton's chapters
De Adquirendo Rerum Dominio, more or less set aside in Maitland's
book. I propose to put before the readers of the YALE LAW JOURNAL
a few remarks on some other points condemned by Maitland and Goudy.
Before doing so, however, I should like to make one observation bearing
on the general use of Roman sources in the treatise De Legibus. Most
of the commentators-and Professor Woodbine among them-hold that
Bracton had recourse to original texts of the Institutes, of the Code and
of the Digest in addition to the statements of Azo in his two Suminae.5
This assumption seems open to considerable doubt. The references to
the originals are so rare and so accidental that Bracton can hardly
have had complete texts before him or, if the books were available, can
scarcely have used them to any appreciable extent. It is to be noticed
that he usually omits from Azo's treatises the direct quotations which
abound in them. What is to be found in the extant text is often trace-
able to marginal notes of students6 and, even apart from that, may be
accounted for by the existence of collections of extracts made by men
who had a wide knowledge of the subject and served as intermediaries
between the learned circle of Italian glossators and the lawyers of less
civilised countries-France, England-when the latter turned to Roman
jurisprudence for the purpose of setting in order their own laws. One
compilation of this kind is especially indicated for detailed study as a
possible source of Bracton's Romanesque learning, namely the Liber
Pauperuin of Vacarius.7 Even on the strength of Wenck's well known
monograph" one may come to the conclusion that Bracton's references
to the various parts of the Corpus Juris do not range outside the frag-
ments collected in the Liber Pauperum. When Professor de Zulueta's
edition of Vacarius, on which he has been at work for many years, is
'See Vinogradoff, Roman Law in Mediaeval Europe (igog) 88 et seq.
' (1922) 31 YALE LAW JOURNAL, at p. 845.
'E.g. the reference to C. H. 3. 13 on f. 16d. of the Vulgate.
Circ. 115a.
s Wenck, Magister Vacarhus (182o).
BRACTON'S TREATISE
published we shall be better able to identify the extracts that have
passed to Bracton through Vacarius' mediation. It may be noticed even
now, however, that Bracton, in opposition to the glossators, does not, as a
rule, refer to the controversies between doctors (Dissensiones Domin-
orum) ; and even when he does so by way of exception, his reference is
introduced in obscure terms, e.g., by secundum quosdam. The Liber
Pauperum is also very reticent on the subject. Direct references to
M(artinus) or B(ulgarus) or even V(acarius) are exceedingly rare
and the glosses appear rather disappointing in this respect. But this
feature is easily explained by the aim of the compilation; it was made
for the use of poor English students and not of learned Italian doctors.
The same is the case with Bracton; the contrast between his persistence
in following the substance of Azo's exposition and the casual way in
which certain references to the textg themselves are inserted testifies in
itself that we have to deal with a student of secondhand books and not
of the original sources. This is confirmed by the appearance of school
tags like the enuneration of the six modes of contracting., The stock
example of the exchange of a copy of the Code for a copy of the Digest
does not fit at all in the English school surroundings of the age, while
it would be quite appropriate in Italian university intercourse. I do
not go further, therefore, than to claim for Bracton an acquaintance
with Roman law at second hand by means of Summae and collections
of extracts. Even with this qualification Bracton's use of civilian
jurisprudence remains a remarkable monument of the scholarly interest
and of the ingenuity of an English lawyer bent on rationalising the
laws and customs of his time and country.
I should like to examine from this point of view some of the charges
of ignorance levelled against Bracton. Let us begin with a point to
which the late Professor Goudy has dedicated the greater part of a
paper read at the London Congress of Historical Sciences in 1913. °
It deals with the statement on f. ioi of the Vulgate' 1 : "Item tollitur
obligatio morte alterius contrahentium vel utriusque, maxime si est
poenalis, vel simplex-si autem duplex, scilicet poenalis et rei persecu-
toria, in hoc quod poenalis est tollitur, et non extenditur contra heredes,
nec datur heredibus, quia poena tenet suos auctores et extinguitur cum
persona." "An obligation is also got rid of by the death of either of
the contracting parties or of both, especially if it is a penal obligation
or a simple one; but if it be a double one, iamely penal and for
recovery, it is got rid of as far as it is penal and it does not extend to
the heirs, nor is it allowed to the heirs because a penalty binds the
original parties and is extinguished with the person." Professor Goudy
'Maitland, op. cit. supra note 3, 143. The book of extracts may have been
compiled in the school of Thomas of Marlborough instead of being derived from
Vacarius' Liber Pauperum.
10 Goudy, op. cit. supra note 3, 222 et seq.
U 2 Woodbine's ed. 288.
YALE LAW JOURNAL
thought that this "is wholly confused. It is evident that in seeking to
apply the Roman doctrine on this point to English law (and he is
plainly not stating existing English rules) Bracton failed to distinguish
between obligatio and actio."1 2 One may feel inclined to question the
justice of this rigorous verdict when one notices that the doctrine as
stated by Bracton turns out to be an expression of a widely diffused
principle of mediaeval customary law. The Sachsenspiegel, which sum-
marizes the customary law of XIII century Saxony, declares : "He
who takes the inheritance shall acquit debts to the extent of the goods
transferred to him by the inheritance. H-e is not bound to pay for
theft or brigandage or gambling losses nor any debt the equivalent of
which he has not received in the inheritance or for which he did not
stand surety." The distinction between obligations arising from delict
and from contract is clearly stated: it involved important practical con-
sequences in those days, because the most important action arising out
of obligations-debt and detinue-had a delictual character. The rule
was eventually. generalized in customary Saxon law in the sense that the
heirs came to be bound by any obligation contracted by their ancestor
in case they had derived profit from the transaction.14 In this form
we find the rule mentioned in the Summa de legibus Normanniae, a
compilation almost coeval with Bracton's treatise.'15 Altogether there
can be no doubt that the restrictions on the transmission of personal
actions did not originate in an erroneous use of Roman texts by Bracton,
but in an attempt to state a customary principle that finds its application
in other countries as well as in England. The case is a conspicuous
instance of the blending of Roman and customary doctrine in XIII
century juristic thought.
Several of the cases mentioned by Maitland on page xix have to be
traced to the same process. One does not need to make complicated
hypotheses in order to explain why Bracton claimed the half-free, half-
servile tenantry of ancient demesnes as adscripticii,8 or why he availed
himself of the term Statuliberi'7 to designate the very common group
of villeins temporarily enjoying rights of freemen. The remodelling
of the doctrine of occupation of things which did not belong to anyone
before 8 is hardly to be reckoned as a blunder: it is rather an extreme
statement of the view that beasts of the chase ought to belong to the
King unless the privilege of hunting them had been conceded to subjects
by a Royal grant. The law of the Forest was derived from such a
Goudy, op. cit. supra note 3, 223.
I. 6. sec. 2.
"Der Richtsteig Landrechts, herausg. von C. G. Homeyer (i857) cap. io, Sec. 3,
quoted by Hensler, 2 Institutionen des Deutschen Privatrechts (i885-86) 547,
note II.
'Ancienne Coutume de Normandie (de Gruchy ed. I881) ch. 88.
'
8 Maitland, op. cit. supra note 3, 49.
1
,Ibid. 83.
SIbid. io3.
BRACTON'S TREATISE
view'0 and although it ran counter to old usage it found strong support
among the partizans of Royal power.
On page 63 again we find a significant "interpretation" by Bracton
concerning ranks of men: the civilians followed the example of the
Corpus Juris in assigning the highest authority in the secular world to
the Emperor. The English writer could not follow their teaching in
this respect without discarding the fundamental concept of the complete
independence of the Crown of England. The natural outcome was a
re-statement of the doctrine similar to that which French lawyers 20
adopted in the XIV century: Emperors and Kings were placed on the
same level as wielding the sovereign authority.
A conspicuous case of intelligent adaptation is presented by the sub-
stitution of "forisfamiliatio" for emancipation.21 The absolute power
of the paterfamilias was unknown to mediaeval society and, conse-
quently, the practice of emancipating sons had no meaning for a writer
on English customary law. Azo expounded the teaching of the Corpus
Juris in accordance with the strict method of the glossators, but Bracton
was not copying without reflection, and therefore he very properly set
aside the passage on emancipation. The nearest approach to that insti-
tution he found in a usage described by Glanville22 by which a father
might start a son as an independent householder outside the family
community. The custom was an interesting manifestation of joint
family life under the management of the father, and a certain recogni-
tion of the claims of sons not succeeding to their father's main holding.
It would become especially important in places with Borough English
succession, as the elder brothers of the junior heir appeared as natural
candidates for such an endowment. Bracton evidently had Glanville's
passage in view when he referred to "forisfamiliatio" as an ancient
custom. It may be remarked that similar practices have played an
important part in the development of succession in the French
coutumes.23
There are frequent cases when Bracton effected a simplification
of Romanesque learning by selecting some one characteristic pronounce-
ment instead of copying them all. Why should, for instance, his
treatment of the distinction between res publicae and res communes
that gave rise to a conflict of opinion between Placentinus, on one side,
Johannes Bassianus and Azo on the other, be attributed to "little care
for the controversy ?1'24 Was it quite unreasonable for Bracton to
adopt the view of Placentinus and not that of Azo in this case?
'Cf. the statement of the Dialogus de Scaccario (circ. 1178) on the derivation
of the law of the forest from the personal discretion of the King. Lib. I, c. ii,
sub fine.
See C. N. Sidney Woolf, Bartolus of Sassaferrato (1913) 340, 38o note 2.
' Maitland, op. cit. supra note 3, 77.
Lib. VII. . 3.
See Paul Viollet, Histoire du Droit Civil Frangais (3d ed. i9o5) [522] et seq.
t'Maitland, op. cit. supra note 3, 95.
YALE LAW JOURNAL
Bracton gave a positive meaning to Azo's sarcastic observation con-
cerning any attempt to vary the species of law in accordance with the
innumerable differences of persons and things. He dropped the
"essent" which imparted to Azo's sentence its ironical meaning and
spoke gravely of the diversity of jura, because he had in view not
varieties of law, but varieties of rights-the right to a house, to an ass,
to a vineyard, to a field, as well as the right of Peter or of John.25
This is not very good Latin, but the general meaning of the passage
can hardly be in doubt.
There are, of course, instances in which Bracton's text, as we have
it, contains obscure or badly worded statements, and this is hardly to be
wondered at, as the author seems to have carried out his great enterprise
in troubled times and without final revision. As an example, one might
refer to the passage about the foreshore. 26 After stating the rule as
to common access to the sea by the shore, the Institutes and Azo's Com-
mentary on them mention the exceptional right connected with the
buildings situated on the shore "quia non sunt juris gentium communia
sicut et mare;" Bracton's text introduces litora as the subject of the
sentence giving a different turn to the sentence. One may well ask
what meaning did the writer attach to the assertion that the shore is
not juris gentium like the sea after having spoken of the shore as com-
mon to all because it gives access to the sea? Two explanations appear
possible: litora may have been a marginal note for reference which has
slipped into the text. If so, the misunderstanding must have occurred
very early in the genealogical development of the MSS.; it appears in
the principal copies. If this explanation should be deemed hazardous,
there remains the possibility of an assumed contrast between jus vaturale
and jus gentium in this respect. The shore would be res communis by
the law of nature, but liable to appropriation by the jus gentium, in
consequence of the erection of buildings or monuments. Some support
for such an explanation may be derived from the fact that Bracton
accepts Azo's observation that in this case solum cedit aedificio, but
omits the remark that it would be "aliud secundum regulam."
Altogether there is certainly a great difference between noticing the
blemishes of Bracton's treatise and ascribing them to ignorance and lack
of understanding on the part of the author. Bracton's use of Roman
law has to be estimated according to standards drawn from the literary
activity not of Azo, but of Pierre de Fontaine or of Beaumanoir.
Ibid. 33. Bracton, f. 3b. 2 Woodbine's ed. 25.
21 F. 7d. 2 Woodbine's ed. 40; Maitland, op. cit. supra note 3, 93.


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THE ROMAN ELEMENTS IN BRACTON\u27S TREATISE

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