Bmeton and his Relation to the Roman Civil Law. modes of acquiring ownership, and on this subject he copies the civil law. The subject of advowsons, which Bracton treats of at length, belongs rather to the ecclesiastical than the civil or municipal law. In chapter 24 he treats of liberties or priv ileges granted to certain vassals by the king, to collect tolls or to be exempt from certain servitudes, etc.; and this, being a part of the civil or governmental polity of the realm, is not properly law in any sense. He next treats of confirmations, etc., which relate to the feudal law. In chapter 26 he lays down the law of donations mortis causa. He says there are three kinds, and defines each; all of which is taken from the thirty-ninth book of the Pandects, — the greater part verbatim, but without the slightest reference to the Pan dects. He even copies the quaint illustra tion (ff. 39, T. 6, 24, § 2) although not in the precise words, " that a donation mortis causa is when the donor prefers to have the thing donated, rather than that the donee should have it; and that the donee should have it rather than the heirs of the donor." In one place he refers to the duty of testators mak ing dispositions in favor of their dominus, or feudal lord, and of the church, and of the custom of some places, in which the church is to have the best work-beast, or the second best, or the third best, and in some places none at all, — which customs were not, so far as I know, derived from the civil law, neither did they become a part of the common law, since they were not general, but only local customs. In the second book Bracton treats of wills and distribution of estates. On page 60 he lays down the law that after the debts of the deceased are all paid (including among debts the widow's quarantine, if her " dos," what ever that may be, was not assigned), the residue, or pcculium, was divided into three parts, one of which was left for the children of the deceased if he had any, the second part went to the wife (widow) if she survived, and the third part was the dispos-
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able portion, which the deceased had the power to dispose of by will. But if there were no children, then the disposable portion was the moiety, and the widow took the other moiety; and in the same manner, if there were children and no widow, then the children took one moiety, and the other moiety was subject to disposal by the deceased by testa ment; and when there were neither children nor widow, then the whole was subject to the disposal of the testator. This, of course, applied to movables only, because the land was subject to the law of the feud. In chapter 22 he treats of usucaption much in the manner of the civil law, al though modified in some respects materially; and one of his modifications is that the length of time required in which to prescribe is not defined by law, but is left to the dis cretion of the judges, while in the civil law the time is always fixed. In treating of sales (fol. 61), Bracton calls thern by the name "emptio et venditio," which is the precise term used for them in the civil law; this term was translated by the old writers on the common law as " bargain and sale." Strictly, it means purchase and sale, or a buying and selling. This contract is defined by Bracton precisely as by the civil law, except in one important particular, and that is, delivery of possession of the thing sold. By the civil law the contract is com plete so soon as the thing and the price are agreed on, although the price is not paid, nor earnest given. Neither delivery of the thing nor payment of price was necessary to perfect the sale, except in certain cases, as where a quantity of things were to be weighed or measured out, then delivery was necessary to complete the sale and transfer the owner ship of the things; but Bracton says that until the thing is delivered, unless there is earnest given, or a written agreement, there will be a locus penitentia, and the contracting parties may recede from the contract with impunity. He says that the same principle applies as in feudal donations, — that without delivery the ownership of things cannot be
