Page:The Green Bag (1889–1914), Volume 04.pdf/220

 Bractoti and his Relation to the Roman Civil Law.

197

sons, crimes, cattle, and land. The feudal as civil matters are concerned, as above system, having been invented by the con limited. It will be observed that the In tinental conquerors, was introduced into stitutes and Pandects both set forth in a England, and thus became the foundation proem that two things are necessary to a of the law governing landed property. In prince; namely, arms and laws, — arms that this article I do not propose to consider he may subdue his enemies, and laws that he Bracton's treatment of the criminal law, may properly govern his subjects. Such is nor of the law of wills and testaments and the beginning of the Roman jurisprudence; and in a similar manner Bracton begins by probate matters, as they are not adminis declaring that the same two things are tered in the king's courts, but in the eccle siastical courts, which confessedly follow the necessary to a king, and for the same rea civil law. Leaving out of view, then, these sons given in the Institutes. He also recog branches of the law, from what source were nizes the distinction between jus and lex, the other laws derived which constituted as defined by the civil law. " Jus est ars what is called the common law in civil mat boni et equi " (Dig. 1, tit. 1, de Jur.), or an ters? Where did Bracton find the body of unwritten law, as we would say; while lex law on which he commented? Evidently is defined as " Lex est commune praecepnot, like many modern writers, from the re tum virorum prudentium consultum, delicports of cases published, for there were torumque, quae sponte vel ignorantia connone; but there, no doubt, were cases held trahuntur coercitio communis reipublicae in memory and tradition, which he used, as sponsio " (Dig. 1, 1. 1, de Leg.), which Brac he sometimes cites M. de Pateshull's rulings ton defines in the very same words (Brae, as authority, but they constitute a very small de Leg. et Cons., fol. 2, 1). And Bracton portion of his law; nor did he get his law further observes that lex signifies " omne from previous common law writers, for there quod legitur," — everything which is read, were none, and he cites none. But he pro or written law (statute law); but he further fesses to obtain his law from a diligent says that lex and jus may be considered the search among the judgments of the just, same thing; and while he defines lex in the and their deliberations and responses, and very words of the Digest, he never gives a compiled into one summary whatever he hint as to where he obtained his definition. found worthy of note, under the order of He explains that while other countries use titles and paragraphs, for a perpetual mem "leges et jus scriptum," England alone ory of the thing. (Bract, fol. i,^f 3). It may uses a "jus non scriptum," and " customs," be observed here that he cites no definite thereby implying that statutes at that time source; and what were the "Vetera judicia formed little or no part of the law of Eng justorum " which he so diligently scruti land. The compilers of the Digest give a nized, he does not here inform us, but his brief historical account of the origin and work itself sufficiently shows. There are rise of the Roman law; but Bracton does not certain ear-marks, so to speak, by which attempt to give a history of the laws and the matter may be traced to its source. A customs by which England was governed. careful examination of Bracton's treatise "de The English or common law being then a Legibus " will show the following facts re "jus non scriptum," it was not a lex, or stat garding his work; and as he was a doctor ute law derived from Parliament or a decree of the civil law and well acquainted with of the king. From whence came it, and it, the analogies and coincidences herein why is Bracton so reticent on the subject considered lead to the conclusion that his of its origin? Bracton next proceeds to define justitiaas "de Legibus " was largely taken from the Institutes and Pandects of Justinian, so far the constant and perpetual desire of render