Bracton: Thorne Edition: English. Volume 2, Page 41

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 41

Next

Go to Volume: Page:

[001] as sacred and religious buildings and gifts solemnly dedicated to the service of
[002] God, as chalices, crosses and censers, which it is forbidden to alienate except to
[003] ransom captives. Cemeteries are also sacred places,²⁴ as are churches and chapels,
[004] and though the buildings are destroyed their sites still remain sacred.²⁵ A sacred
[005] thing differs from a sacrarium, for that is the place where sacred things are kept.
[006] There are also things subject to a sanction,²⁶ as the walls and gates of cities, which
[007] are called such because capital punishment is decreed for those who commit any
[008] outrage upon them,²⁷ violating them either by admitting persons through them or
[009] scaling them by ladders or in any other way, for it is a hostile and disgraceful act
[010] to enter in any way except by the gates. That is said to be subject to a sanction which
[011] is protected and fortified against the wrongs of men, and that law especially called
[012] a sanction which imposes a penalty on a wrongdoer. No person is permitted to
[013] rebuild the city walls for his private advantage, only for the public welfare.²⁸

Some things belong to no one.

[015] ²⁹Things are said to be res nullius in several different ways: by nature or the
[016] jus naturale, as wild beasts, birds and fish; by the common opinion of mankind,³⁰
[017] as was said [above], as things sacred, religious or subject to a sanction; by accident,
[018] as an inheritance lying vacant before it is taken up. But the rule fails in this case
[019] because the inheritance represents the persona of the deceased³¹ or because [the
[020] advent] of a future heir who will take it up is expected.³² Things taken as derelict
[021] are likewise said to be res nullius.³³ They are also said to become such through lapse
[022] of time, as treasure trove. ³⁴ Also where there is no apparent owner of the thing,
[023] as in wreck, and the same is true of things regarded as waif, as cattle, where there
[024] is no apparent owner, all of which formerly belonged to the finder by natural law
[025] but are now made the property of the prince by the jus gentium.³⁵ ³⁶There are
[026] things that are res nullius by nature, which nature does not permit to be anyone's
[027] property, as free men.³⁷ Free men are not subjects of ownership and commerce and
[028] the same may be said of a sick slave his lord has cast off. The law declares him to
[029] be free.³⁸

Notes

24. Infra 58, iii, 40, 128

25. Infra 58. iii, 128

26. ‘Sanctae,’ as Azo: Kantorowicz, 91-2; cf. infra 57, n. 12

27. Inst. 2.1.10

29. Br. and Azo, 89, 91, 94, 96, 97

29-34. Azo, Summa Inst. 2.1, no. 18

30. Azo: ‘hominum censura,’ cf. Maitland, ‘by construction of law,’ Br. and Azo, 97

31. ‘hereditas sustinet vicem personae defuncti,’ as Azo; Inst. 3.17 pr.; infra 136

32. ‘quia [adventus] speratur,’ but Azo, ‘quia sperantur’

33. Infra 129, 339

34. Azo, loc. cit., no. 19; infra 47, 338-9

35. Infra 43, 58, 166-7, 338, 339

36-38. Azo, Summa Inst. 2.1, no. 19

37. Infra 58