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Updated: June 9, 2025
Wythe, above all our early statesmen, was deeply learned in the law, had traced all its doctrines to their fountain-heads, delighted in the year-books from doomsday down; had Glanville, Bracton, Britton, and Fleta bound in collects; had all the British statutes at full length, and was writing elaborate decisions every day, in which, to the amazement of county court lawyers, Horace and Aulus Gellius were sometimes quoted as authorities.
Bracton L.3. 28. § 1. says, the punishment of rape is 'amissio membrorum, ut sit membrumpro membra, quia virgo, cum corrumpitur, membrum amittit, et ideo corruptor puniatur in eo in quo deliquit; oculos igitur amittat propter aspectum decoris quo virginem concupivit; amittat et testiculos qui calorem stupri induxerunt.
It was quite well known, however, in Gylingden, by this time, that Captain Lake was not to see the hustings that his spine was smashed that he was lying on an extemporised bed, still in his clothes, in the little parlour of Redman's Farm cursing the dead mare in gasps railing at everybody shuddering whenever they attempted to remove his clothes hoping, in broken sentences, that his people would give Bracton and good licking.
Tell him you desire no better, and will bring it at once before your committee; and let him know, the moment they meet; and tell him I say he knows Wealdon pretty well he may look on it as settled. That will be a spoke in Sir Harry's wheel. 'Sir Harry who? said Lake. 'Bracton. I think it's only to spoil your game, you see, answered Wealdon.
In the first place, we find an action to recover stolen property, which, like the Salic procedure, was based on possession, not on title. Bracton says that one may sue for his chattel as stolen, by the testimony of good men, and that it does not matter whether the thing thus taken was his own property or another's, provided it was in his custody. /1/
Bracton, De Legibus et Consuetudinibus, i. 8, 5. Cf. Manegold, Ad Gebehardum, c. Cf. John of Salisbury, Policraticus, iii. 15, viii. 17, 18, 20. Cf. C. C. J. Webb's edition of John of Salisbury's Policraticus, introduction. Cf. Gratian, Decretum, D. iv. c. 3.
Sir Harry Bracton was already 'chaffing a bit, as he expressed it, with the young lady who assisted in dispensing the good things across the supper-table, and was just calling up her blushes by a pretty parallel between her eyes and the sparkling quality of his glass, and telling her her mamma must have been sweetly pretty.
'Nova constitutio futuris formam imponere debet, et non praeteritis. The maxim in Bracton was taken from the civil law, for we find in that system the same principle, expressed substantially in the same words, that the lawgiver cannot alter his mind to the prejudice of a vested right.
Bracton and Britton in their several generations bear witness, that it was then practised; and greater proof of it needs not be sought, than the disputes that appear by the law-books to have been amongst the ancient lawyers, Whether it was treason or felony for a grand juryman to discover their counsels The trust of grand juries was in those days thought so sacred, and their secrecy of so great concern to the kingdom, that whosoever should break their oaths, was by all thought worthy to die, only some would have them suffer as traitors, others as felons.
But I cannot say that I find until a later period the unlimited liability of master for servant which was worked out on the Continent, both by the German tribes and at Rome. Whether the principle when established was an indigenous growth, or whether the last step was taken under the influence of the Roman law, of which Bracton made great use, I cannot say.
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