Bracton: Thorne Edition: English. Volume 2, Page 167

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Bracton Online -- English

Volume 2, Page 167

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[001] things are his which by the jus naturale ought to be the property of the finder, as
[002] treasure trove,¹ wreck, great fish, sturgeon, waif, things said to belong to no one.²
[003] Also by virtue of the jus gentium [things] which by natural law ought to be common
[004] to all, as wild beasts and undomesticated birds, which by natural law ought to be
[005] acquired³ by apprehension and capture or fowling, [or] by occupation and apprehension,
[006] [as] of another's property, as where a thing is cast away and taken to be
[007] abandoned.⁴ Those concerned with jurisdiction and the peace [Those connected
[008] with justice and the peace belong to no one save the crown alone and the royal dignity,
[009] nor can they be separated from the crown, since they constitute the crown [For to
[010] do justice, [give] judgment and preserve the peace is the crown.] ⁵without which it
[011] can neither subsist nor endure.]⁶ ⁷cannot be transferred to persons or tenements,
[012] neither the right nor the exercise of the right,⁸ nor be possessed by a private person
[013] unless⁹ it was given him from above as a delegated jurisdiction, nor can it be delegated
[014] without ordinary jurisdiction remaining with the king himself. Those called
[015] privileges, however, though they belong to the crown, may nevertheless be separated
[016] from it and transferred to private persons, but only by special grace of the king
[017] himself;¹⁰ if his grace and special grant do not appear time does not bar the king
[018] from his action. Time does not run against him here since there is no need for proof.¹¹
[019] For it ought to be apparent to all that such things belong to the crown unless the
[020] contrary can be shown by a special grant.¹² In other matters, however,¹³ where
[021] proof is needed, time runs against him just as against all others.¹⁴ When such liberties
[022] have been granted by the king they are at once quasi-transferred and quasi-possessed,
[023] and he to whom they are granted at once has quasi-use, though a case in which he
[024] ought to use does not at once arise. When one does arise and he uses he at once retains
[025] possession through use, [but] whether there is actual use or not he will always be in
[026] possession or quasi-possession of the delegated jurisdiction or the thing until he
[027] loses it by abuse or non-use.¹⁵ One cannot actually use (though he may quasi-use)
[028] such liberty until a case arises in which he may use it, as where one has a court and
[029] the power of pleading [pleas de vetito namii]¹⁶ in his court and of holding a plea by
[030] writ of right; although he is in quasi-possession he nevertheless can have no actual
[031] use before the impetration of a writ and summons. So if one is granted the liberty of
[032] inquiring into and judging the assises [of bread and beer] and of [weights and]
[033] measures infringed contrary to royal ordinance; though he may inquire, he cannot
[034] judge until there is an infraction.¹⁷ though he is in quasi-possession. And so if one is
[035] granted the liberty of having soke and sake, tol and them, infangenethef and
[036] utfangenethef, judgment of life and

Notes

1. Supra 41, 47, infra 339

2. Supra 42, 58, infra 293, 339

3. ‘adquiri’; ‘communia’ has erroneously been twice copied

4. Supra 41, 42, infra 339

5. Om: ‘et’

6. Supra 58, infra 305; D. W. Sutherland, Quo warranto, 13, 103-4

7. Om: ‘Huiusmodi . . . iurisdictiones,’ a connective

8. ‘neque ius neque’

9. ‘neque . . . possideri nisi hoc’

10. Supra 58, infra 339

11. Supra 58, infra 293; E. Kantorowicz, 168

12. Sutherland, 14

13. ‘vero’

14. Supra 58

15. Supra 159, infra iii, 165, 173, 177

16. As infra 168, line 21 and V, but no MS authority

17. Infra iii, 177