selves wholly to the study of the civil and canon laws, which now

the king, are established by the consent of the great men, and imply a promise of obedience (sponsio) on the part of the commonwealth. Thus far Bracton, while Glanvill is not only shorter but one-sided-he deduces the authority of English law from the famous saying: quod principi placuit legis habet vigorem -a saying which was not in keeping with the political tendencies of Simon de Montfort's time, and therefore put aside by Bracton. In what sense can it be said, however, that the consent of great men is an element of English law? At first sight this may be true of Statutes and Assizes, but hardly of the decisions of judges on which the greater part of common law rests. But, as Statutes and Assizes are written law, they do not come within the scope of the argument at all. It seems that the body of magnates, of great men whose consent appears necessary for the making of the law in England, is assumed to be identical with the body of the Curia Regis, from which all jurisdiction proceeds. To its authority the sanction of English legal rules is thus ultimately referred, although it remains always expressed in vague Romanesque terms. We can see that a difficulty is felt as to the power of single judges to lay down the law, and it is settled in a way which reminds us of Beaumanoir. The common-law rules established by general custom ought to proceed from the whole court of the king, and their repeal and alteration is the affair of the whole court. In case of doubt recourse should be had to this court, which represents the majores, the magnates of the kingdom. Undoubtedly some of the great men, the judges and justiciars, one might be inclined to say, do not act up to this general doctrine, but lay down decisions as if their opinions were sufficient to constitute law. This is altogether reprehensible. The single judge is in the position of interpreter of the law, however, and though he is precluded from altering it at his wish, he may not only follow it when it is clear, but also improve upon it, an improvement not being an alteration. This reasoning is partly suggested by Azo's teaching as to the interpretation of law, and as to legal fictions by which the meaning of rules is widened, but it goes further both in wording and spirit, and though strained from a purely logical point of view, it very aptly opens a work which has to combine and contrast civil law and English common law.

If the difficulty as to the authority and sanction of common law may be easily overcome, the second objection to the common form of English doctrine is recognized to be grounded on serious considerations. There is no authorized version of English legal rules. This is felt both by Glanvill and by Bracton. Very material drawbacks follow from the absence of such a version; law is perverted by the ignorance of beginners who ascend the bench before they have mastered the elements of legal lore; it is also perverted by the overbearing conceit of people in authority, who treat it according to their personal views and inclinations. It is to remedy these very drawbacks that both Glanvill and Bracton set out to perform their task, the first in a perfunctory and thoroughly practical manner, the other with a great store of authorities at his disposal. Bracton's work may be called a private treatise on the common

came to be inseparably interwoven with each other; and the nobility

law in its relation to general jurisprudence, and this literary departure remains significant for the further course of English legal studies.

4. There follow generalities about justitia and jus. The Bolognese doctor starts from the definition of justice as given in the Digest: "justice is a constant and permanent will to allow everyone his right" (justitia est constans et perpetua voluntas jus suum cuique tribuendi). According to scholastic method he takes up every word in the sentence and expands it by interpretation so as to define the different attributes and conditions of justice. In this way he draws attention to the fact that justice may be considered as a divine institution, deciding once for all what is right and what is wrong. Or else it may be considered from the point of view of humanity. In this case the stress would lie on the will of man to do right, and not on external facts. Immutability and permanency are necessary attributes of justice. Variations or changes would destroy its very essence. If a legal privilege is first conceded and afterwards denied, this is in no way a change of justice, but a consequence of a change of acts. Bracton's summary of this section cuts short many of the philological distinctions. He finds himself confronted with a peculiarity of English phraseology, namely, with the absence of an equivalent in English to the word jus. Though writing in Latin, he does not want to make his teaching dependent on a foreign use of terms, and therefore he introduces, though very shortly, the terms lex and consuetudo-law and custom-explaining that they correspond to jus, which in this case would be rendered by the English word "law." But, we may add, the proper rendering of jus would not always be "law," the objective order of things and duties, as one might say, but sometimes "right," the subjective sphere, what I claim as my own against my neighbors. If Bracton had been making a translation, he would have found himself obliged to observe this variation of meaning. As it is, he uses Latin, although a Latin addressed to English readers, and this gives rise to what seems at first sight a gross blunder. Azo, talking of jus as "law," ridicules the idea that there could be the law of Peter or John, of a lion or of a donkey. Bracton, evidently speaking of jus as "right," turns the same sentence to positive account, and admits the right (jus) of Peter and of Paul. "The right of a lion or of a donkey" would, however, sound quaint enough, and it would have been better if Bracton had not gone so far on the subjective track. His meaning seems to have been, that we have to consider varieties of right derived from claims of divers beings and of claims in respect of divers things. He differs from Azo yet another time when the contrast between proprietas (ownership) and bonorum possessio (possession) makes it necessary for him to notice a material difference in the use of these fundamental conceptions in Rome and in England. While the Roman lawyer draws a sharp distinction between ownership as the genuine and complete right to a thing, and possession as the protected enjoyment of it, the English lawyer merges both ideas in the intermediate and relative conception of seizin. A man is seized of a thing, more frequently of land, and his seizin must be protected by the courts until

and laity, who adhered with equal pertinacity to the old common

a better ground of seizin has been found. B, the eldest son of A, may be his right heir, but if he did not obtain seizin on A's death, and C, the second son, has done so, C must be prima facie protected because he is already in seizin. He may be ousted only if B challenges his title and proves the truth of his contention. Bracton quite appropriately called attention to this fundamental difference of legal principle in a marginal note which eventually crept into the text itself, and destroyed the smooth course of Roman doctrine as set forth in Azo's manual.

There follows a section on the law of nature, the jus civile and the jus gentium. Azo, concerned with the interpretation of Roman texts as they stand, treats of the general philosophical problem of the law of nature as opposed to the positive law of states. But he also explains the purely Roman distinction between jus civile-the law of the Roman people-and the jus gentium -private law based on the legal customs of different nations. Bracton gives the substance of Azo's teaching on the law of nature, noticing the two possible meanings of the expression-as derived from the nature of live creatures, of animals as well as men, and as representing the rational concepts of man's nature. But he combines this second idea with that of the jus gentium, not taking much care to discover the historical differences between such reasonable rules and those imposed by the jus civile. In this respect he is undoubtedly inaccurate, but we can hardly reproach him, when we remember that even Roman jurists did not always distinguish clearly between the bidding of the jus naturale and the ratio naturalis, on which the rules of the jus gentium were supposed to be based. As for the jus civile, Bracton seeks to appropriate the expression in a way characteristic of mediæval usage. He has no interest in the original law of the Roman state, the jus of the Quirites, but there is one kind of law existing in England which might be designated by a reference to jus civile. This is the customary law of boroughs-jus civitatum. 5. The contrast between the professor expounding antiquarian doctrines, and the judge fitting English facts into a Roman frame, is especially striking in the treatment of the law of persons. Bracton follows Azo as to the principal and very important generalization, "all men are either free or slaves." But such a generalization had to be modified both in ancient Rome and in mediæval Italy or England. Azo proceeds to give the necessary commentary from the point of view of ancient Rome. He treats of statu liberi and of adscripticii to show that it is possible to arrange these subordinate groups under the chief headings of free and unfree. He does not deal with the Italian world in which he lives, nor is he troubled by the fact that neither the statu liberi nor the adscripticii are known to his Bolognese or Florentine contemporaries. The English lawyer proceeds on an entirely different course. The statu liberi and adscripticii are used by him to illustrate actual English conditions, although they lose much of their antiquarian genuineness, thanks to this process of adaptation. Of the free (liberi) it is needless to speak at length, for they appear in England under the same name. Villeins are equated with slaves

law: both of them reciprocally jealous of what they were un

a far-reaching assumption. As the adscripticii represent a kind of intermediate stage between free and serf, their counterpart would be the villein socmen of ancient demesne, and, to some extent, the freemen holding in villeinage. As for the statu liberi, Bracton employs this term to denote serfs enjoying a state of liberty, as for example, serfs dwelling as freemen on free soil. In this case they are prima facie protected by law, and any person claiming them as villeins must bring an action (de nativo habendo), and assume the burden of proof in court. This is, of course, no Roman doctrine; it is the adaptation of a Roman term to English distinctions.

At the end of the sections treating of the law of persons Bracton returns to the problem of slavery, and lays stress on the fact that slaves are not completely in the power of their lords. He finds support for this contention in the later Roman doctrine which, through the influence of Stoicism and Christianity, granted some protection to the slave against exceptional cruelty on the part of the master. From the time of the Antonines, a master treating his slave in an intolerable manner could be constrained by the magistrates to sell him. It was declared that the homicide of a slave by his master was a criminal offense. Azo took particular notice of these limitations of the power of masters over slaves, and adduced as a reason for the interference with the right of property in slaves, the importance for the commonwealth of preventing owners from misusing their property (expedit reipublicæ ne quis re sua male utatur). Bracton not only indorses the doctrine, but adds an important concrete feature which shows that in this case he did not merely copy foreign learning, but was pleading for a certain point of view before English jurists. He defines the "intolerable injury" as a destruction by the master of the serf's waynage, that is, of his plow team which, as we know, was safe from royal amercement. There are precedents for this view in Norman legal usage, forbidding the taking away of the rustic's waynage by the lord; and, of course, in the fact that in Anglo-Saxon times the predecessor of the villein, the ceorl, was not a slave at all, but had a standing against his lord in the courts of law. But at the time when Bracton wrote, the defense of waynage did not tally with the surrender of the old rights of free cultivators in other respects. Bracton himself, representing the general drift of the jurisprudence of his time, had maintained that there was no difference between a serf and a villein. The reservations, he wished to draw in regard to the right of waynage, are akin to the vacillations of his brother judges in cases where there was at stake the right of men holding in villeinage to appeal to the king's courts for remedies against their lords. After some contradictory decisions, the courts ended by applying strictly the rule that villeins have no civil claims against their lords, and that, in law, what is held by the viliein, is owned by the lord. At the same time the reservation as to waynage disappears. Bracton's teaching on villeinage is thus very instructive, not merely from the point of view of the evolution of villein tenure, but also for estimating the practical influence of Romanesque learning on him and other English lawyers. Though the status of villeins was undoubt

acquainted with, and neither of them perhaps allowing the oppoedly developed chiefly by the pressure of economic and political forces, it is clear that the study of Roman precedents played an important part in the shaping of its legal rules. To put it in another way, the historical growth of English villeinage did not necessarily involve its treatment on the basis of serfdom or slavery. But the infusion of Roman doctrine made the legal treatment of villeinage harder than might have been the case otherwise, while the partial reservations introduced by the emperors and admitted by Bracton did not carry much weight in practice.

Another case, where the study of Roman doctrine has left a distinct trace on English legal thought, is the well-known distinction between real and personal property. We may observe the actual origin of this famous distinction which still holds good at the present day. The root of it lies in the teaching of Roman lawyers on actions. There are real actions-actiones in rem-which aim at obtaining the property of a certain thing, and personal actions, urging certain claims against persons, requiring them to do something, to give something, or to forbear from something. The question of obtaining a specific object does not arise in the latter case. It is the value claimed that is of importance. So far, the teaching is common to both Roman and English lawyers. But Bracton and his fellow-judges, working on this basis, went a step beyond their Roman guides. They used the distinction between actions to differentiate between different kinds of property. Land and interests connected with it appeared to them to be naturally the object of real actions, because here the claim was directed to a definite thing and to nothing else. On the other hand, chattels were, as a rule, claimed in the same way as rights; for example, as the performance of some labor or office. The aim of the action was to obtain either the thing or service, or its equivalent from the person under obligation. The distinction became fundamental in the English legal system. Again, a striking example of the influence of Roman distinctions is afforded by the treatment of leases for terms of years. Bracton and thirteenth century judges consider the lessees not as tenants having an estate of freehold, but as mere usufructuarii. This is altered to a great extent by later doctrine, but the initial classification has left its traces on the law of the subject.

Bracton and his compeers had especially much to learn from the Romans, and the glossators who expounded their doctrines, on the subject of obligations generated by contracts and torts. The exceedingly active economic intercourse of the Roman state in its most prosperous days had been utilized by keen jurists to frame a doctrine conspicuous, even in the domain of classical law, for its subtlety and dialectical resourcefulness. Part of this vast material had to be left on one side by Bracton, while other parts were adopted more for the sake of possible eventualities than for the immediate requirements of practice. Bracton appropriates the fundamental idea that a nude pact, a convention bereft of particular form, does not constitute an obligation enforceable at law. He cites a couple of doggerel lines intended as an assistance