Bracton: Thorne Edition: English. Volume 2, Page 34

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Volume 2, Page 34

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[001] arouses the attention of the reader, prepares the mind for understanding [and]
[002] strengthens the memory by art. The classification is this, that every man is either
[003] in his own potestas or another's, or his situation is doubtful, as some say, who
[004] claim that the status of a person may be in suspense, as [the sons]²² of one captured
[005] by the enemy. But, in truth, it would be absurd if anyone at a particular time
[006] were neither in his father's potestas nor in his own. For the statement that his status
[007] is in suspense is only true by reason of the future effect of the fiction of postliminium,
[008] which is wholly distinct from jus,²³ for if he [the father] returns it will be as though
[009] he had never been captured, but when his present status is examined it is not
[010] in suspense at all, for the law says one captured by the enemy is a slave. Thus it is
[011] impossible for him to have his son in his potestas. And it is generally true that
[012] nothing in the present or past is in suspense.²⁴

Those who are [not] sui juris.

[014] ²⁵All those are sui juris who are not within the potestas of another. Thus once
[015] persons who are alieni juris are recognized, all others may, in consequence, be
[016] known to be sui juris. Under the potestas of others are bondsmen, the authority of
[017] their lords being sanctioned by the jus gentium; it once extended to life and death
[018] but is now restricted by the civil law--life and member are in the king's potestas,²⁶
[019] so that if one kills his bondsman he is punished no less severely than if he had
[020] killed another's. And in this respect bondsmen have a right of action against their
[021] lords, they may proceed against them in court in matters [where the punishment is
[022] that] of life and members,²⁷ because of their lords' violence, or because the wrong
[023] is an insufferable one,²⁸ as where their lords so strip them that their wainage cannot
[024] be saved them.²⁹ For it is to the interest of the res publica that no one misuse his
[025] own.³⁰ The effect of this seignorial power is that whatever is rightfully acquired
[026] by the bondsman is acquired by his lord,³¹ or his quasi-lord, [that is], a bona fide
[027] possessor, a usuary or a fructuary.³²

Those who are in the potestas of fathers.

[029] ³³Under the authority of fathers are sons begotten in rightful and lawful wedlock.
[030] Under that of grandfathers and great-grandfathers on the paternal side are
[031] grandsons and great-grandsons. He is presumed to be one's son by the very fact
[032] that he is born of one's

Notes

22. ‘filiifamilias,’ Azo; cf. Kantorowicz, 86-7

23. ‘in as much as it is more benign,’ Azo adds

25. Br and Azo, 66-8, 71

25-32. Azo, Summa Inst. 1.8, nos. 3-7, with additions: infra v

26. Infra 282, 298, 346; iv, 311

27. Infra 334, 397

28. Inst. 1.8.2; infra 438

29. Magna Carta (1215) ca. 20; (1225) ca. 14; infra 330

30. Supra 26

31. Infra 87, 135-6

33. Br. and Azo, 68-9

33-36. Azo, Summa Inst. 1.8, nos. 9-10, with additions: infra v