Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/224

 210 //. FROM THE llOO'S TO THE 1800'S Juris twice. ^ The rule as to the half-blood, which has been attributed to a misunderstanding of the Civil law, he treats as settled.^ He states rather curiously and inaccurately that coparcenery was called in the ancient books of law " familia herciscunda" ^ which was a tenure; and compares the Com- mon Civil and Canon laws on kinship, saying, " thus much of the Civil and Canon laws is necessary to the knowledge of the Common law on this point." He of course notices the discrepancy between the Common law and the " laws of Holy Church, or Canon law," as to legitimation by subsequent mar- riage. Speaking of banishment he remarks, " if the husband by act of Parliament have judgment to be exiled for a time, which some call a relegation, that is no civil death ; " * this is clearly the Roman " relegatio " or exile, which involved no loss of status. He refers to the agreement of the Civil and Common laws in forbidding distress on beasts of the plough,^ and cites Seneca as to their agreement in the punishment of rape. He uses the phraseology of peremptory and dilatory exceptions,® though bargain and sale, (in the Institutes a consensual contract), is described as a real one.^ The respite of a pregnant woman under sentence till she is delivered, for which Bracton had cited Roman law, is restated,^ but some of Bracton's Roman incorporations are not so fortunate, as where Coke says " We remember not that we have read in any book of the legitimation or adoption of an heir, but only in Bracton,^ and that to little purpose." Coke ascribes the in- troduction of the rack to the Civil law,^**»as the rack or brake allowed in many cases by the Civil law, whereas all tor- tures and torments of parties accused were directly against the Common law of England." ^^ In his Fourth Institute Coke states to what extent the Civil the quotation is characteristically used to resist a claim of jurisdiction by the Ecclesiastical Courts. Coke also says of the Regiam Majestatem, " so called because it beginneth as Justinian's Institutes do, with these words," which is incorrect, as the words are Imperatoriam Majestatem. » C. i. 14, a, 191, a. note. »C. i. 164, b. "C. i. 133, a. » C. ii. 132. • C. ii. 426. ' C. ii. 672. « C. iii. 17. » Br. f. 63, b. »• C. iii. 35, cf. Step. Hist. C. L. i. 222. " Cf. also, C. i. 41, a; Br. f. 311. C. i. 47, b. on traditio. C. i. 55, a, on possessio precaria. C. ii. 198, 441, on liability of heirs. C. ii. 591, on ultimum supplicium, cf. Dig. 48, 19. C. ii. 391; melior est conditio
 * C. ii. 658: Dig. 48, 19, 18, where he misquotes meretur for patitur: