Roman terms are occasionally used, as was natural with a writer well acquainted with Roman law, and dealing with a system till then lacking in form and precision. The few citations from Roman sources have usually done duty already in other parts of his work, and make no important additions to the matter in hand. About two-thirds of the work is of this character, English in its matter with some slight traces of scholastic form.

As to the Roman law which Bracton actually incorporated, did he, 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 seem to me to be no 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 mark3), 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 1st 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 indeed some recent decisions give him warrant. On the contrary we have seen many examples of his "intelligent

1 Spence, 1. 123, 124, Güt. p. 57. 2 Maine, Ancient Law, p. 82.

3 Maine, one-third of matter, and

whole of form, Anc. Law, p. 82. Reeves, not three pages; 1. 529.

4. supra, p. 82.

copying", as in the adaptation of the definition of theft, the conception of donatio, and the account of treasure-trove: and this "intelligent copying" contrasts strongly with the unintelligent plagiarism of his followers, which converted the actio familiae herciscundae into "accioun mixte, que est appelé en la ley le Emperour accioun de la mesnee dame de Herciscunde." To him English law is undoubtedly indebted for an extensive Roman terminology which survives to the present day; the Roman form of his first three books has been less fortunate, though Blackstone's Commentaries show some traces of its influences. But I do not think that Bracton himself is responsible for many material alterations based on the Roman law, though he records some important ones which have been made by his predecessors and contemporaries under civilian influences; and certainly M. Houard's charge against him of Romanizing the law of England cannot to any serious extent be justified.

1 Britton, III. 7, 1. V. post, p. 124.

CHAPTER IV.

ROMAN LAW IN BRITTON AND FLETA.

THE work of Bracton attained great repute', while its size and cost prevented its being easily consulted. Several abstracts or epitomes were therefore compiled with more or less fidelity, which served to make known the law as contained in Bracton. These were the treatises known as Fleta and Britton, and a Summa by Gilbert de Thornton.

This latter may be briefly dealt with as no copy of it is at present known to exist. Selden had a MS. in his library, of The abridgment was made

which he has left us some account. about the year 1292, and its title expressly states that it is Summa de legibus...Angliae a Magistro Henrico de Bryctona composita...quam Ds. Gilbertus de Thornton abbreviavit sub compendio." The order of the work is slightly different from that of Bracton: Selden says: "He, as is usual with Epitomisers, passes by a great many things, neither does he always follow Bracton's method, but sometimes another and makes a different distribution." We have very little information as to the Roman or English character of the work.

1 See the letter of R. de Scardeburgh borrowing a MS. of Bracton from the Bishop of Bath, and promising to return it in 6 months. Selden ad Fletam, II. 2.

2 Güterbock, p. 68. Selden ad Fletam, II. 4. Mr Kenny's censure on English illiberality for not printing Thornton would be more applicable if he would tell us where to find a copy of Thornton to print. See Nicholl's

Britton, 1. Pref. 25.

3 Selden says "He is sometimes an excellent interpreter and expositor of Bracton...though he passes by almost all the quotations of the places cited out of the books of the Imperial Law by Bracton, and which are basely handled by his Editors"-(was this prophetic of the Rolls' Edition?): "but he has not omitted them all": and in the following chapters (III. 1, 2) he

"FLETA, seu Commentarius Juris Anglicani," is so called from its composition in the Fleet Prison, and is believed to have been written about 1292o. It is in Latin, and it abridges Bracton carefully, though the arrangement differs, and the work is about half the size of the original. But besides omissions the author adds new matter which is sometimes of a Roman character. He mentions the Corpus Juris, as where, in speaking of accession by ferruminatio, he says "Secundum quod Institutis legitur, ubi dicitur quae pars alteri accrescere debet." Except in this case he does not expressly quote Roman sources, though Bracton's incorporations are reproduced, in many cases word for word, and in some cases strengthened. Thus Fleta expressly gives as a reason for the prohibition of donations inter conjuges*, quia omnino hoc prohibetur in lege:...verba autem legis sunt hujusmodi." Bracton's citation as to the effect of felony is reproduced with the heading et ad hoc facit Lex imperatoria3, which also serves to introduce the citation as to the respite of pregnant women. New Roman matter, not found in Bracton is introduced in the chapter "De dotis constitutione": and some Canonical authorities are cited". Bracton's arrangement is) followed except that the subject of criminal law and a book on personal actions are introduced between Books I. and II. of Bracton.

66

The work called "Britton," probably because it was considered as an abbreviation of Bracton, is written in Law French, between 1290 and 1300. During this period the

refers to passages where Thornton has followed Bracton's Roman incorporations.

1 Güt. p. 69: Nicholl's Britton, I. Int. 25. Twiss' Bracton, vi. Pref. 18. Selden ad Fletam. Fleta, ed. 1647.

2 Nicholls," in course of preparation in 1290." Güterbock: "composed after 1292." Twiss, "shortly after 1292, if not in that year."

3 Fleta, III. 2, 12. Bracton in the corresponding chapter also refers to the Institutes, but on a different point, the accession of pictures. Br. f. 10.

influence of Edward I.'s legislative ability was very great, and the three short treatises we have spoken of show the interest taken in the law. Britton especially bears marks of royal instigation; its form, in the first person plural, “nous voulums”, and its constant references to "our writ", strongly suggest that it is a work undertaken by royal command. Mr Nicholls is of opinion "that Fleta was first written, and, together with Bracton was in the hands of the author of Britton, who appears to have more frequently made use of the compendium of Fleta, than of the larger work." The work, as a whole, is far more practical and modern than that of Bracton, and though it reproduces some of his Roman incorporations, it is distinctly less civilian in character. I have only been able to find one express reference to the Roman Law, and that, a most ludicrous misunderstanding. Britton following Bracton on actiones mixtae comes to the "actio familiae herciscundae," which appears in all the MSS in a form implying that "Herciscunda" is a female proper name3: Nicholls' reading is "que est appelé en la ley le Emperour1, accioun de la mesnee dame de Herciscunde." This may be called unintelligent plagiarism, as compared with Bracton's intelligent copying. But the Roman matter in Bracton is much abbreviated and reduced, and thus the tendency of the use of Britton would certainly be to weaken Roman influences.

1 Nich. Int. p. 27.

2 Cf. Bracton De acquirendo Rerum dominio, Bk II. c. 1-4: with Britton, II. 2, which is Roman, but much abbreviated and modified.

3 Britton, III. 7, 1: this phrase is unfortunate Coke speaks of familia herciscunda as a tenure! Sub, p. 130. 4 Cf. Fleta, Lex Imperatoria.