BRACTON AND HIS RELATION TO THE ROMAN CIVIL LAW. BY W. W. EDWARDS. II. Л FTER treating of the acquisition of •**• ownership by Inheritance and by Testament, which, owing to the feudal char acter of the property of the deceased, was considerably modified, and in some respects different from the Roman law on the same subject, he treats of the rights of the feudal lord on the death of his tenant, such as the custody of his heir, maritagium, etc. He next treats of ante-nuptial donations an.d dower, with which he closes his title, " Of Acquisition of Ownership of Things," and Book II. The various distinctions which he makes between maritagium, dos, rationabilis dos, and how they differ from the dos of the Roman law, is curious, and is reserved for future consideration. Book III. opens with the subject of Ac tions, — what is an action, how actions arise, how they are divided, how propounded and entered, how established and proved up. Bracton defines an action to be nothing else than the right of pursuing in a court of jus tice what is due to one. This definition is copied, with the exception of one word, from the Institutes of Justinian (I. 4, tit. 6, 1. i). The different word that Bracton substi tutes is alicui for sibi of the Institutes. I will observe here, in passing, that he often, even when professing to quote the civil law, substi tutes a different word or two in a sentence, as on fol. 114, — rarely ever being literally cor rect, although the signification is the same. Whether this arises from carelessness, or from the fact that the ancient copies of the Institutes, Pandects, and Code in use in Bracton's time were slightly different from those now in use, I am unable to say; but it is certain that in Bracton's time (A. D. 1250) the Corpus Juris had not been collated and put into its present form, and the verbiage
of the copies used by him might have been slightly different from those now in use. But be this as it may, in this particular defi nition of action, which he proceeds to dis sect and to explain all its different terms, when he comes to explain the term quod alictii debctur he uses the word sibi (" quod sibi debetur ") instead of alicui, thus making his definition "Actio nihil aliud est quant jus persequendi in juditio, quod sibi debc tur" — the same as that of the Institutes. Having thus dissected his definition of an action and explained the signification of its various terms, he proceeds to show how actions arise, and that they arise from pre ceding obligations : " That the obligation is the mother of the action, and is to be traced to some preceding cause, as either a con tract or quasi contract, or to a malfeasance or quasi malfeasance. That actions ex contractu may arise in many ways; as by con vention, or from interrogations and responses, or by conception of words, which brings the wills of two persons into a common consent, as in case of pacts,-— agreements which are sometimes nude and sometimes vested; and that if they are nude no action arises, — for ex nudo pacto non nascitur actio." By con ventions, above, he means valid agreements; and by interrogations and responses he means the Roman stipulation, which was always contracted by question and answer, and anciently in the Latin language only; and by conception of words he means agree ments made in other forms in a valid man ner. Pacts were either nude or vested, — that is, clothed with some subject-matter or consideration to act on, and with binding force. All these kinds of actions were civil. "Obligations also arose from malfeasances
