264 HISTORY OF LAW 



mind the purpose to expound the civil law as recognized in and 

 applicable to England, he would naturally have selected for expo- 

 sition some features common to the two systems from which he 

 might have built up a presentation of English law. On the con- 

 trary he selected a peculiarity essentially English, and introduced 

 that method of explanation of the law by means of the nature and 

 form of the writ in each particular class of cases which is so char- 

 acteristic of the early English system. It is hardly to be believed, 

 then, that the system which the author of the so-called Glanville 

 treatise conceived of as the English law was in any way dependent 

 for its form or substance on the civil law, which was then receiving 

 so much attention abroad, and had so recently been the subject of 

 instruction at Oxford. 



If it be contended that English jurisprudence did not take definite 

 form until during the reign of Henry III, about seventy years after 

 Glanville, when Henry de Bracton wrote his great 

 work in five books on The Laws and Customs of Eng- 

 land, and that this was the first arrangement of the English law 

 in a systematic manner, and further that this treatise shows the 

 distinct recognition and acceptance of the forms and principles of 

 the Corpus Juris Civilis, it is necessary, in discussing the issue thus 

 raised, to make a thorough estimate of the nature of the work 

 which Bracton really did in formulating the English system. In 

 speaking of the laws of England as distinct from those of other 

 countries, in that they are not written and are founded on usage 

 and custom, but are nevertheless entitled to the name of laws be- 

 cause they have the force of law, Bracton says it should be known 

 that the nature of the treatise consists of "the facts and the cases 

 which daily emerge and happen in the realm of England that it 

 may be known what is the proper action and what is the proper 

 writ according as the plaint shall be real or personal, and what 

 acts are thereupon to be completed, and what enrollments are to 

 be made according to the pleas and the objections, in accusing and 

 in proving, and in defending and in excepting, and in replying and 

 so forth. " Proceeding, then, with a somewhat philosophical state- 

 ment of the nature of law and definitions of jurisprudence, of 

 equity, and of rights, all of which are evidently fashioned after the 

 exposition of the civil law found in Azo's Summa, a treatise then 

 well known, and to which the author makes specific reference, and 

 some further theoretical exposition of the nature of rights in things 

 and the method of acquiring them, he proceeds in his Third Book 

 with a discussion of actions, still following his civil law guide, 

 although adapting the matter to some extent to common law pro- 

 cedure. But in the Second Treatise of the Third Book he speaks of 

 the Crown, and under that head discusses the law of crimes, and 



