Bracton: Thorne Edition: English. Volume 2, Page 290

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Volume 2, Page 290

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[001] For remove intention and every act will be indifferent; it is your intent which
[002] distinguishes your acts, and a crime is not committed unless an intention to injure
[003] exists;¹ nor is theft committed without the intent to steal.² ³In [obligations arising
[004] from] delicta or maleficia, [where] the delinquent is bound to him against whom he
[005] has offended, the obligation is not extinguished with regard to the penalty except
[006] by the death of both or the other of the two parties. [Punishment is not to be
[007] extended beyond the person of the offender, for he who is not at fault ought not to
[008] suffer punishment.]⁴ ‘The punishment may be remitted, the fault will be enduring.’⁵

The first division of actions.

[010] ⁶We have explained above what an action is and how actions arise out of obligations.
[011] Now we must see the divisions into which actions fall. The first classification
[012] of actions or pleas (to use these terms synonymously) is this, ⁷that some are in rem,
[013] some in personam and some mixed.⁸ Of those in personam, [some] descend ex
[014] maleficio, [others] ex contractu.⁹ [Of those ex maleficio], some are criminal, others
[015] civil.¹⁰ Of the criminal, some are major, others minor, and others of the heaviest
[016] kind,¹¹ according to the magnitude of the crimes committed.¹² There are the major
[017] crimes, ¹³called capital because they involve the supreme penalty or the loss of
[018] members or exile, perpetual or temporary.¹⁴ The minor, which entail flogging, or
[019] the pillory or ducking-stool or imprisonment, sometimes with, sometimes without
[020] infamy, depending upon what the reason is.¹⁵ ‘It is not the beating that imposes
[021] the stigma of infamy, but the reason for which it merited imposition.’¹⁶ And so
[022] of those that are in personam and arise ex delicto or quasi, as the actio iniuriarum,¹⁷
[023] which is sued civilly, for an injuria may be grievous or slight,¹⁸ and accordingly a
[024] heavier or a lighter punishment will follow, according to the verse, ‘I will show you
[025] what the punishment is when the wrong is admitted.’¹⁹ Punishment ought not to
[026] be extended to those who do not offend nor go beyond the nature of the offence.²⁰
[027] [An injuria may amount to a trespass, ²¹as where something is done contrary to
[028] the statutes of the king and the kingdom by exceeding mean and measure or by
[029] doing less than what is due, that is, less than he ought, through malice and fraud
[030] [or] negligence and neglect.]²² [There are also civil actions in personam which arise
[031] ex contractu or quasi, as was said above, where one is bound to another for the
[032] giving or doing of something, by force of some preceding causa.] [Thus] no civil action
[033] in personam can or ought to be sued criminally. Hence in every [criminal] action let
[034] the judge carefully examine the deed and origin,²³ and let the action proceed
[035] accordingly, civilly

Notes

1. Azo, Summa Inst. 1.1, no. 2; supra 23, infra 375, 384, 438

2. Inst. 4.1.7; infra 384, 425

3. Belongs on 289, at n. 14; supra 288, nn. 19-20

4. Infra 324, iii, 44

5. Ovid, Epp. ex Ponto, i, 1, 64

6. Br. and Azo, 165-8

7-8. Inst. 4.6.20; Azo, Summa Inst. 4.6, no. 10

9. Supra 283, infra 291

10. Infra 291, last lines; ‘ex maleficio’ deleted here: infra n. 17

11. Altered from ‘minima’: infra 437; n. 17 infra

12. Infra 298

13-14. Inst. 4.18.2: ‘Capitalia dicimus, quae ultimo supplicio adficiunt vel aquae et ignis interdictione vel deportatione vel metallo’; Glanvill i, 2: ‘quae ultimo scilicet puniuntur supplicio aut membrorum truncatione’; infra 298, 437

15. As infra nn. 21-2

16. D. 3.2.22; pillory etc.: infra 299, 340

17. Arises ex maleficio: infra 291, 293, 295, 437; ex delicto: 412, iv, 265, 363, 368

18. Infra 438, 439, iv, 363

19. Ovid, Metam., i, 210

20. C. 9.47.22.2, Drogheda, 73, 167

21-22. Belongs supra at n. 15; ‘Item poterit ... transgressionem,’ redactor's introductory phrase: erroneous

23. Infra 390, 407, 408, 409