Bracton: Thorne Edition: English. Volume 3, Page 21

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Volume 3, Page 21

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[001] This sort of force may be called repulsive force. ¹So if a procurator general comes
[002] armed [and ejects a possessor], the lord himself is taken to have ejected by arms,
[003] whether he has ordered such action or ratified it.² ³And the same must be said of [my]
[004] household when it has come armed. It is not I but they who [must be] understood to
[005] have come armed, unless I ordered or ratified their act.⁴ In accordance with what has
[006] been said, the nature of the act makes the punishment heavier or less severe.] ⁵for
[007] some arms are for defence, and what one does to protect his person or his right he is
[008] held to do lawfully. There are the arms of peace and justice and the arms of disturbance
[009] and injuria, [Also the arms of usurpation, of another's property, such force
[010] being called ablative,] and thus it will be lawful for the rightful possessor ⁶to repel
[011] with arms him who comes armed and against the peace to expel him,⁷ that by the arms
[012] of defence and peace, which are those of justice, he may repel injuria and wrongful
[013] force, the arms of injustice. But nevertheless with this moderation of discretion,⁸ that
[014] he commit no injuria, for one may not, under such pretext, kill or wound a man or
[015] maul him severely, if he may protect his possession in some other way. To him who
[016] will use his strength there will be strength to resist, with arms or without, according
[017] to [the verse] ‘When a strong man armed etc.’⁹ However one is not, without reason,
[018] to go armed at all times. [He who] comes to drive out a rightful possessor with force,
[019] when the possessor resists, so that the other cannot accomplish what he had in mind,
[020] does not fall into the assise; the attempt ought not to hurt him when his wrongful act
[021] was without effect.¹⁰ ¹¹Some say and believe that force only exists when men have
[022] been wounded, but it is regularly true that there is force whenever anyone claims
[023] what he believes to be his own by other than legal process.¹² Let this discussion of
[024] force suffice for the present. But because force sometimes induces fear, we therefore
[025] must see what fear is. It is clear¹³ [as above, [in the portion] on gifts, more fully.]¹⁴

The first remedy after a disseisin; where it is permissible to expel immediately, in what way and when.

[027] If a disseisin has been committed in any of the aforesaid ways, the first and most important
[028] remedy is this, let him who was so disseised expel the spoliator, by himself if
[029] he can or with the help of others, provided it is done at once,¹⁵ while the disseisin and
[030] maleficium are still fresh.¹⁶ [Or if, when he is in possession or seisin, another attempts
[031] to use [the land] with him, let him use it nonetheless, unless he can keep the wrongful
[032] user out completely, for by his own use, by so using it rightfully, he retains his seisin
[033] [and]

Notes

1-2. D. 43.16.3.10

3-4. D. 43.16.3.11; cf. Kantorowicz, Bractonian Problems, 47-8

5. Om: ‘Sed sive . . . iniuriosa,’ a connective

6-7. D. 43.16.3.9

8. C. 8.4.1. ‘inculpatae tutelae moderatione’; Azo, Summa Cod. 8.4, no. 2; Kuttner, Kanonistische Schuldlehre, 340-43

9. Luc. 11:21

10. D. 2.2.1.2: ‘quid enim offuit conatus cum iniuria nullum habuerit effectum’: supra ii, 361, 392, infra 42; cf. ii, 334, 342

11-12. D. 4.2.13; D. 48.7.7; Barton in Tulane L. Rev., xlii, 574

13. Reading: ‘sciendum’ for ‘dicendum’; deleted

14. Supra ii, 65

15. D. 43.16.3.9

16. Infra 23