Page images
PDF
EPUB

p. 311, 1. 16. For qui read que. p. 369, Case 469.

The paruum breue in question was the vicontiel writ of nuisance, as to which see F. N. B. 184.

p. 373, 1. 7. For Reginaldi read Reg', which probably stands for Regis ; see Case 1764.

p. 404, Case 516. Cuwyc is not Southwick, but Cowick near Exeter, where was a cell of Bec. Monast. vol. 6, p. 1043.

p. 490, 1. 17. By ipse Peter means himself. He asserts that his own son has better right than William.

p. 506, note 4. Seemingly I was wrong in supposing that the marriage was consummated before the gift was made.

p. 533, note 4. For defendant read demandant.

p. 534, note 8. The point is this :--A father gives the marriage of his son to X; X must get the son married during the father's life, for otherwise the father's lord will be entitled to the marriage.

p. 656, note 4. This must mean, not 'until the land shall be at peace', but until the land shall have acquitted itself', i.e. probably, until the land shall have repaid a sum of money for which it has been made security.

p. 666, 1. 16. nisi iudicium illum incumbaret (corr. incumbraret). I have given a very bad explanation of this. The king insisted that each of the rebellious barons should come to the court alone, and should go home alone, unless the judgment of the court should incumber, impede, him. Of course in case judgment should go against him there could be no talk of his going home; he would be 'incumbered' by the judgment. Bracton has a similar passage on f. 119. An accused person who is willing to answer the charge • libere debet recedere, nisi iudicium ei incumberet'.

VOL. III.

p. 16, line 25. The first pre in this line should be pro. p. 33. In the heading, for FILIUS read FILII.

p. 132, Case 1115. Selden refers to this case in his Notes on Fortescue ; Note 8; I owe this remark to Prof. Thayer. In line 9 on page 133 the words on the roll, which the copyist of the Note Book reads as et verbis, should be in omnibus.

p. 305, note 1. I withdraw the remark that the name Munegedene seems a corruption of Muntbegun.

p. 427, note 1. For Alice read Agnes.
p. 450, line 6. For reognoscendum read recognoscendum.
p. 468, line 1.

For producati psa read producat ipsa. p. 566, note 2. More probably this means that if any one gave judgment in the wapentake the king would hear of it.

A LETTER OF PAUL VINOGRADOFF PRINTED IN

THE ATHENAEUM FOR 19 JULY, 1884'.

It is well known that the chief importance of Bracton's work on the laws of England is derived from the fact that it is based on a most extensive and careful study of the judicial practice of the thirteenth century. Building on this firm foundation, Bracton was able to produce a treatise which in arrangement, connecting theories, and even in many a particular point, testifies to the influence of Roman jurisprudence and of its mediæval exponents, but at the same time remains a statement of genuine English law, a statement so detailed and accurate that there is nothing to match it in the whole legal literature of the Middle Ages.

The great English judge did not content himself with setting forth in a general way what he held to be the law of his country; he used systematically the rolls of Martin of Pateshull and William of Raleigh, and gives no fewer than 450 references to cases decided by his predecessors and teachers. This being so, it is surely not devoid of interest to inspect rather closely that groundwork of Bracton's treatise, and to trace as far as possible his way of selecting and handling his records. Now I think that a British Museum MS., numbered Add. 12,269, can help us very materially in this direction. It is a collection of cases written about the middle of the thirteenth century, with a good many notes on the margin. The first leaves and the last quires are missing, and there is no direct evidence as to the person who compiled and used the book, but the contents make it very

1 The Editor of the Athenaeum has very kindly consented to this letter being here reprinted.

probable indeed, if not certain, that it was drawn up for Bracton and annotated by him or under his dictation.

If we leave aside the comparatively few instances when Bracton's treatise gives only general references, and take the quotations specifying court and year of the trial, we shall see at once that they may be classed under three heads': 1. Cases tried in the King's Bench, ranging from Michaelmas, 2 Henry III., to Easter, 18 Henry III. ; 2. Cases before the King's Council, from 19 to 24 Henry III.; 3. Cases tried in the Eyres of Martin of Pateshull and William of Raleigh during the first half of Henry III.'s reign. There remains a certain, very small, number of stray quotations which do not come under this classification; as, for instance, casual mentions of trials Coram Rege in 31, 32, 38 Henry III. They probably did not belong to the original text of the treatise; but even if they did, their occurrence does not alter the general arrangement.

Now the Add. MS. contains: 1. Cases tried in the King's Bench ranging from Michaelmas, 2 Henry III., to Easter, 18 Henry III. ; 2. Cases before the King's Council, from 19 to 24 Henry III.; 3. Cases tried in some of the Eyres of Martin of Pateshull. Unfortunately the MS. breaks off right in the middle of a Staffordshire Eyre, so that we cannot judge how far the other circuits of Martin and those of William of Raleigh had been used. But even what is left is quite sufficient, as I take it, to establish a remarkable coincidence between the book and the Add. MS. (A Patent Roll of 42 Henry III., quoted by Madox, * History of the Exchequer,' ii, 257, enjoins Henry of Bracton to surrender the rolls of M. de Pateshull and W. de Raleigh which he had been using.)

The extracts, I ought to mention, are made in a very irregular fashion as regards the order of rolls and terms.

The compiler did not go by strict chronology, probably because he had not the whole set of records at his disposal at the same time. find that after a series of King's Bench terms of the second, fourth, sixth, seventh, and ninth years, earlier rolls come on again. What is more, there are occasions when a roll from which extracts had been made was taken up again, and some new cases

So we

1 See below, p. 53. 2 Not a Patent Roll, but a Roll of Exchequer Memoranda ; see below, copied out from it'. The last is a very important feature because it explains a fact which at first sight seems to tell against the supposed connexion of our MS. with Bracton, namely, that not all the cases mentioned in the treatise are to be found under their respective years in the note-book. As a considerable part of this seems to be lost, we cannot expect book and treatise to fit completely

p. 25.

Passing from a general survey to a closer examination of the contents, we must, of course, advert principally to the subjectmatter of the marginal notes in the MS. Are there any striking analogies between their wording and the text in Bracton's treatise? Most of the notes give only in a few short words the substance of the transcribed cases or call attention to particular points in them. But not seldom the annotator criticizes the decision or supplements it by reflections of his own, and then the close relation between note-book and treatise becomes apparent.

An instance is afforded by the passage on the right of a widow to bequeath crops growing on the land she held in dower. Previous to the statute of Merton, 20 Henry III., such a bequest would not have been valid. Bracton, ' De Legibus,' folio 96 b, says: "Nova superveniente gracia et prouisione...... poterit uxor de fructibus et bladis siue a solo separata fuerint, siue non, testari et pro uoluntate sua disponere.” The Add. MS., folio 209 a, has : “Modo mutatum est de noua gracia quod potest testamentum facere de blado firmo in terra”.”

On 169 b of the note-book we find the following peculiar illustration: “Terminus terminans set indeterminatus et incertus, et ideo liberum tenementum sicut ad vitam hominis, quia nihil certius morte, nihil incertius hora mortis.” The same diction occurs in the treatise, folio 27 b: “Si autem fiat donatio ad terminum annorum, quamvis longissimum, qui excedat vitas hominum, tamen et hoc non habebit donatorius liberum tenementum, cum terminus annorum certus sit et determinatus, et terminus vitæ incertus, et quia licet nihil certius sit morte, nihil tamen incertius est hora mortis 3."

[ocr errors]
[ocr errors]

1 This happens but once and only one new case is copied (Case 1293). I do not think it probable that all the cases cited by Bracton were once in this book. See below, pp. 77–80. 2 See below, p. 89.

3 See below, p. 89.

The whole disquisition about the natural and artificial, the common and the leap year, given in the treatise, is set out at greater length, but with a literal repetition of some characteristic sentences, in the note-book (195 6). The quaint comparisons of the

year of 365 days to a bird without a tail and of that of 365 days and six hours to a bird holding its tail in its mouth occur equally in both texts'.

Speaking about the marginal remarks and insertions of the Add. MS., I must not omit to notice a very important feature in their composition : it is evident that they were written at very different periods. After the collection had been compiled the person for whom it was made seems to have gone through it two or three times. Two observations lead me to this conclusion. Some of the entries, especially where additional matter has been inserted on blank pages, are in distinctly later handwriting (for instance, 196 a). A note has been added sometimes where originally there was only a

" Na" to show that the passage deserved special attention. This peculiarity explains the presence of one or two writs which do not occur in Bracton's treatise (195 b), and seem to have been especially inserted because they did not occur there.

Another point requires careful consideration : among the marginal notes of the Add. MS. there is a certain number of references to cases, mostly very incomplete, jotted down by the annotator from general recollection, without any attempt at definite quotation. One can fancy that in reading through the report of a trial of 1227 Bracton was struck by its similarity with a case which had come under his own personal knowledge, and wrote down in the margin : "fere casus Cole” (40 6). A very good instance is given on 185 6. The text recites interesting pleadings of some peasants trying to vindicate their right of ancient demesne tenantry against their lord. The note says: “N* de villanis Henrici de Tracy de Tawystok qui numquam fuerunt in manu Domini Regis nec antecessorum suorum et loquebantur de tempore Regis Edwardi coram Willelmo de

1 See below, p. 91. The year is compared to a snake, not to a bird.

2 This refers to Case 1290, in which some hypothetical pleadings in a mort d'ancestor are discussed. Bracton does not deal with the exact point which they raise. See below, p. 91.

3 See below, p. 100.

« PreviousContinue »