Bracton: Thorne Edition: English. Volume 2, Page 42

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Volume 2, Page 42

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OF ACQUIRING THE DOMINION OF THINGS

How the dominion of things is acquired by the jus naturale or the jus gentium.

[003] ¹We have treated above of the classification of things. ²Now we must explain how
[004] the dominion of things is acquired according to natural law or the jus gentium (to
[005] start first with the older law, which, with the human race itself, proceeded from
[006] the nature of things) and then how it is acquired according to the civil law,³ which
[007] came into existence later, after states came to be founded, magistrates created
[008] and laws reduced to writing.⁴

Of wild beasts.

[010] ⁵By the jus gentium or natural law the dominion of things is acquired in many
[011] ways. First by taking possession of things that are owned by no one,⁶ [and do [not]
[012] now belong to the king by the civil law,⁷ no longer being common as before,]⁸ ⁹as
[013] wild beasts, birds and fish, that is, all the creatures born on the earth, in the sea
[014] or in the heavens, that is, in the air, no matter where they may be taken. When
[015] they are captured they begin to be mine, because they are forcibly kept in my
[016] custody, and by the same token, if they escape from it and recover their natural
[017] liberty they cease to be mine and are again made the property of the taker. They
[018] recover their natural liberty when they escape from my sight into the free air and
[019] are no longer in my keeping, or when, though still within my view, their pursuit is
[020] no longer possible.¹⁰

Of fishing, hunting, and capture.

[022] ¹¹The taking of possession also includes fishing, hunting and capture. It is not
[023] pursuit alone that makes a thing mine, for though I have wounded a wild beast
[024] so severely that it may be captured, it nevertheless is not mine unless I capture it;
[025] rather it will belong to the one who next takes it, for much may happen to prevent
[026] my capture of it. And so if a wild boar falls into a net you have set, and though
[027] he is caught fast in it I have extricated him and carried him off; he will be mine
[028] if he comes into my power, unless custom rules to the contrary¹² or [the king's]
[029] privilege.

Notes

1. Br. and Azo, 98-9

2-4. Azo, Summa Inst. 2.1, no. 20

3. Infra 47

5. Br. and Azo, 98-9, 103, 125 n. 6

5-6. Azo, Summa Inst. 2.1, nos. 21-22

7. Elsewhere by the ius gentium, infra 167, 293; they are res nullius by natural law: supra 41, infra 167

8. For these words Br. and Azo; Vinogradoff in Yale L. Jour. xxxii, 754 (Coll. Pap., i, 241); Kantorowicz, 113-16; infra 58, 167, 293, 339

9-10. Azo, Summa Inst. 2.1, nos. 21-22

11. Br. and Azo, 98-100, 103-4; Kantorowicz, 117-18

11-12. Azo, Summa Inst. 2.1, no. 23; reading: ‘tetendisti’; ‘cum eo haereret,’ as D. 41.1.55 and Azo, for ‘cum coercerem’