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Saxon rules which first called the sons equally, and then the daughters together. There is no evidence of the right in. representation in Saxon law'. In the time of Glanvil the question as between a grandson and his uncle was still in dispute; and he himself, while stating both views, prefers the grandson's right. But the question soon became of practical importance in the disputed succession of John and Arthur, in which John, the uncle, attained the crown. Bracton states the law as definitely in favour of the grandson3; and this recognition of the right of Representation is probably due to Roman and clerical influence.

In personalty, rules, which are not Roman, limit the power of disposing by will, to either one-third or one-half of the personalty, after the payment of debts, funeral expenses, and the wife's quarantine*. But this innovation on Saxon procedure is certainly not Roman. The old Saxon rules, dividing the land equally among the sons still existed on all socage and gavel-kind lands though these, as they appeared less frequently in the King's Courts than the great military fiefs, are less noticed by Bracton 5.

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Bracton's distinctions as to haeredes are tinged with Roman law on several points. He defines the legitimus haeres as quem nuptiae demonstrant," and adopts Azo's liberi legitimi et naturales, “ qui ex justis nuptiis et legitima uxore procreantur”. Glanvil had forbidden those to inherit “ qui ex legitimo matrimonio non sint nati"", but Bracton admits an exception in the case of those who have ignorantly but publicly contracted an invalid marriage, in the belief of its validity and without the prohibition

1 e.g. a grandson did not take his deceased father's share. Anglo-Saxon Law, p. 132.

2 Glan. VII. 3.

3 Br. f. 64, b, 267, b. Güt. 132. Twiss, I. Pref. 45.

4 Br. f. 60, b. Anglo-Saxon Law,p.76. 5 Br. f. 76.

6 Br. f. 64. Azo, f. 132, b. Sir T. Twiss here affords another instance of the care with which he has edited Bracton. Tottell's text (f. 63) runs

that those who have contracted an in-
valid marriage clandestinely seem to
have acted non ex parte sciente (!), vel
saltem affectatores ignorantiae. This
is in substance a quotation from the
Canon Law (X. c. 3, 4, 3), and Twiss
notes the reference: yet if he had taken
the trouble to turn to his reference he
would have found the obvious reading
"expertes scientiae;" and he even notes
that one MS. reads scientiae.
7 Glan. VII. 13.

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of the Church; following the Canon law, which he expressly cites, he states their children to be legitimate'. Here there was no English custom to the contrary, but in the case of legitimatio per subsequens matrimonium such a custom did exist, and the attempt of the Church to introduce the Roman rule was successfully resisted. Glanvil had noticed the opposition", and Bracton recognizes the legitimacy of such children "ad ea quae pertinent ad sacerdotium," but not "ad ea quae pertinent ad regnum propter consuetudinem regni, quod se habet in contrarium." At the Parliament of Merton in 1236 the clergy had made an attempt to change the law, to which the barons returned their well-known answer, "Nolumus leges Angliae mutare, quae usque ad illud tempus usitatae fuerunt et approbatae." The compromise effected required the spiritual courts only to decide the fact of birth before or after marriage, by which means they escaped from giving a decision on the legitimacy of children previously born3.

Brothers of the half-blood can, according to Bracton, succeed as heirs to each other. He also notes at length two forms of procedure, which appear to be of Roman origin. When the inheritance was to be divided among daughters as co-parceners, or sons of a tenant in socage, a method of partition was adopted, apparently copied from the Roman judicium familiae herciscundae. So also, when the wife of a deceased tenant declared herself pregnant, and her child-bearing would affect the descent of the inheritance, the truth of her allegation was inquired into by a procedure, closely resembling the Praetorian. edict “De ventre inspiciendo," and probably derived therefrom®. We may remark on the phrase "quasi-succedit" that it supports the theory of the development of the doctrine of

1 Br. f. 63. Güt. 127.

2 Glan. VII. 15. Br. f. 63-63, b. 3 No definite rule as to the case in which the child of a married woman born after the cessation of the marriage was her former husband's, was laid down, as in the Roman law, but each case was left on its own merits. Some other particulars as to Bastardy appear however of Roman origin, Güt.

130.

4 Br. f. 65, b, but cf. f. 267, see sub p. 115. Maine, Ancient Law, 151. = 5 This phrase has an unfortunate history. Herciscunda appears as a lady, in Britton (III. 7, 1), and as a tenure, in Coke.

6 Cf. Dig. 25, 4, with Br. ff. 69— 71. Güt. 131.

BRACTON ON DOWRY.

97

transmission of rights and liabilities to assigns inter vivos, from an application of the Roman doctrine of universal succession, treating assignment inter vivos as quasi-succession1.

Bracton's treatment of homage, relief, and the custody and maritage of heirs is almost entirely English. Roman influence may be traced in the suggestion as to females attaining their majority at 12 years of age, with the reason given, though this age is rejected in military fiefs for 15. The rule as to the guardianship of blood relatives, excluding any who could be suspected of a claim to the inheritance, is directly contrary to the Roman rule "ubi spes successionis, ibi et onus tutelae debet esse1."

The last two chapters of Bracton's 2nd book deal with the question of dos. The early morgen-gifu, or gift from the husband to the wife, had become transformed under clerical influences into the Dos ad ostium ecclesiae, and in lands held by military tenure this had been cut down under feudal influences to a life-interest in one-third of the husband's lands, where no lesser sum was agreed on. This is entirely unlike the Roman dos, which was a limited gift from the wife's family to the husband. Bracton treats the dos ad ostium ecclesiae as a donatio propter nuptias, and introduces the Roman dos, in a woman's maritagium, which he divides into profectitia and adventitia, terms taken from the Roman law, but with changed meanings'. The Roman dos profectitia was the contribution made by the wife's father or male ascendant; the dos adventitia, the contribution made by the wife, or any other relation of hers. But in Bracton, the dos profectitia is given by father, mother,

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vel alio parente; the dos adventitia by other than the father and mother, sive parens sit, sive extraneus. Thus, besides disagreeing with the Roman law, the definitions clash with each other, as a dowry given by an uncle would fall under both heads. But they seem of no practical importance, though repeated by Fleta1. Bracton also refers to a dos parapherna", a phrase evidently derived from the Roman paraphernalia, or parts of the dos which the wife retained as her absolute property; in Saxon times the wife besides her share of the property was entitled to retain her bed and apparel on the death of her husband, and in the time of Bracton she had probably the right of disposing of her jewels and dress by will. But feudal theory cut down her power over her paraphernalia to her apparel "pur ceo que necessaire que el ne alera naked mes d'estre conserve del shame et del cold"." A Roman name has been applied to a Saxon institution cut down by feudal principles*.

Dower, exceeding the dos rationabilis, which was one-third of military lands, was revoked. But though Bracton mentions it only casually, large portions of the land of the country were still held on the old rules of dower.

A curious incident of the marital relation, probably derived from the Roman law, is the life-tenancy of the husband in his wife's lands of inheritance, if issue has been born alive, a tenure known as "per legem Angliae," or "by the curtesy of England "." It is prominent in English, Scotch', and Norman law, though the general feudal law expressly forbids it; it is contrary to the

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Yearbook of 1302; it does not relate to the "courtesy" of the law, but to the fact that the husband, being tenant of the whole fief, on the birth of issue, can sit as tenant in the Lord's Court, (curia), whereas the widow, holding only a part, is so tenant to the heir. Kenny, pp. 74, 79.

7 Derived through the Regia Majestas from Glanvil.

8 Feud. 1. 15. Si femina habens beneficium et maritum moriatur, nullo modo succedit in beneficium maritus, nisi specialiter investitus sit. (Wright, Tenures, p. 195, 2nd edit. 1734.)

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rules of succession of the Roman law, and unknown in Saxon times. Sir M. Wright, following Sir T. Craig, suggests that it is an application of Constantine's rule as to the peculium adventitium', which gave the father a life interest in all property coming to the son, through the mother. This would account for the necessity of issue born alive, and also for the fact that the husband had no such right in a life-estate of his wife's, or in property to which his son succeeded not in right of his mother, but as remainder man'. The curious limitation that the child must have cried within four walls may have resulted from the rules of evidence which, following the Canon law, prohibited females from taking part in a sworn inquest. Thus the birth of a live child could not be proved by the attendant women, and men could not testify from sight, "quia non est permissum quod masculi intersint hujusmodi secretis: but they could witness from hearing, and the cry was an evidence of life. The "infra quatuor parietes" may either be derived from a similar German law, or, according to Caspar, from Ante-Justineanean sources.

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In the prohibition of conjugal donations and the introduction of curtesy we have substantial effects of Roman influence, but on other points the English law as to dowry seems unaffected by Rome.

Bracton's Third Book.

Bracton's Third Book is divided into two treatises, "De Actionibus" and "De Corona," which deals with Criminal law. The treatise on Actions* deals also with obligations, and completes Bracton's consideration of contracts, which had begun with the chapters on Emptio-Venditio and Locatio-Conductio in the 2nd Book. In the first half of the treatise the influence of

1 Cod. 6, 60, 2. Wright, p. 196.

2 This however was contrary to the amending constitution of Arcadius and Honorius, which gave the father such an interest in property coming from maternal ancestors. Cod. 6, 60, 2.

3 Abbreviatio Placitorum, p. 267. Kenny, p. 80.

4 Twiss, II. Pref. p. 25-32. Güterbock, pp. 138-158. Pollock on Contracts (3rd edit. 1881). Introd. pp. 7— 20. Text. pp. 145-157. Holmes, Common Law, pp. 247-307. Long, pp. 104, 105.

5 Supra, pp. 93, 94.
6 ff. 98 b-104 b.

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