Bracton: Thorne Edition: English. Volume 3, Page 20

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 20

Next

Go to Volume: Page:

[001] or with arms, for there is both simple force and armed force, since it is said ‘De vi
[002] [et] de vi armata.’¹ Turning first, therefore, to force, we must see what force is. It is
[003] an attack by some overpowering agency which cannot be resisted.² Force is classified
[004] in this way: [the first kind] is wholly expulsive. [It may be] with arms or without
[005] arms, [secret], clandestine and nocturnal, or notorious, public and by day, rightful
[006] or wrongful, with violence or without it, as an entry into vacant property. Expulsive
[007] force³ is connected with corporeal and immovable things, as lands and tenements.
[008] Also with incorporeal things, as those which exist in contemplation of law; not when
[009] they exist wholly in that way, but when they exist partly [in that] and [partly] in
[010] another. A [second kind] of force is perturbative, as where one claims to possess
[011] though he has no right, and the other alleges that he is in possession because he has
[012] right. A [third kind] is disquietative, where one prevents another from using his
[013] possession quietly and in peace, for there is quiet and non-quiet, which is the same
[014] as disquiet. There is also [a fourth], ablative force, which occurs together with perturbative
[015] force when, for example, one plows or reaps in another's land and thus
[016] disturbs that he may take and carry away a movable from an immovable. It occurs
[017] by itself,⁴ in connexion with movables, animate or inanimate, as where they are
[018] stolen, taken and carried away by force. There is as well [a fifth], compulsive force,
[019] which induces fear in another,⁵ as where one keeps another in prison and in chains⁶ or
[020] compels him at sword's point to give or do something against his will. It gives rise to
[021] an exception in another: in the father, if it is directed against a son or grandson, or
[022] in the son or grandson if directed toward the father.⁷ There is force that is wrongful
[023] and illicit and force that is licit and rightful, whether it is simple or violent, unarmed
[024] or armed, [There is also armed force. One is ejected by arms, I say, if there was armed
[025] force of any kind, ⁸not only if one comes with weapons [is he armed], but we regard
[026] as armed all those who have anything that may cause injury.⁹ ¹⁰All things by which
[027] men may inflict injury are included in the word ‘weapons.’¹¹ ¹²If one comes unarmed,
[028] but during the course of the argument picks up sticks, staves [or] stones, it will be
[029] called armed force.¹³ ¹⁴If he comes with arms but ejects without using them, armed
[030] force is said to be employed, for the threat of arms suffices for one to be ejected by
[031] arms.¹⁵ If a lord returns from a journey or from market¹⁶ and ¹⁷armed men who have
[032] invaded his possession forbid him to enter, he is considered to have been ejected with
[033] arms.¹⁸

Notes

1. D. 43.16, rubric

2. D. 4.2.2, but closer to Azo, Summa Cod. 2.19, no. 3

3. Azo, Summa Cod. 2.19, no. 1, distinguishes vis expulsiva, ablativa, turbativa, inquietativa, compulsiva; Drogheda, 262, 263

4. Om: ‘non’

5. ‘alio’ for ‘aliquando’

6. D. 4.2.22

7. Supra ii, 65

8-9. D. 48.6.9

10-11. D. 48.6.11.1; ‘ex’ for ‘in,’ as D.

12-13. D. 43.16.3.4

14-15. D. 43.16.3.5

16. D. 43.16.1.24: supra 18

17-18. D. 43.16.3.8