y in part, that a moral duty was ground enough for the enforcement of
y a civil contract. In Hawkes v. Saunders, 1 Cowp. 289 (1775), he re affirmed the position, holding that the moral duty itself was t h e " : y • y consideration in a contract. The House of Lords, however, in the •A y y
case of Ranh v. Hughes, 4 Brown P.C. (1778), held that Lord Mansfield was mistaken in his understanding of the doctrine of consideration yvy in the law of civil contracts, and stated by way of correction of him, "It is undoubtedly true that every man is by the law of nature bound y to fulfil his engagements. It is equally true that the law of this country supplies no means, nor affords any remedy, to compel the per formance of an agreement made without sufficient consideration." fy-'y?
This is not a lesson easily learned. In the mid-1970’s, Burmah Oil,
because of a fall in the English.stock market, was forced to sell off. much of its North Sea oil holdings. The market rose in mid-1976; now that same oil company is undertaking a law suit against the nurchaser of those same stocks on the grounds that they, Burmah Oil, were forced to sell the stocks at an unjustly low and unfair price. The suit, if y
. it does come to the High Court, will be long and involved; it is also
very moral at its inception. ,
137
be appeased. ^ ’ Such harmony of disparate worlds may seem natural
to the mediaeval mind which believed in a balanced harmony between \
the realms of matter and the realm of the spirit, which the literature
and theology of the age shows us, and it may seem strange to us now;
but it should be remembered that blasphemy, for instance, is still
actionable at common law as a misdemeanour. : ^
! The Leges preserves many of the common cases which were to
be found in mediaeval theological writing. The cases of the tree
falling upon the unwary passerby, the mother who rolls over in her
sleep and smothers her child subsequently because of the unfortunate
accident, the accidental wounding or non-purposeful wounding or killing
of an innocent third party, the dangerous trap which, set for animals, *
catches a person, and other such standard cases find themselves in the
fabric of the Leges. What is lacking from this early compilation is
any conceptual analysis of what, for instance, is meant by ’Will1 or
'Purpose1 or 'Mind' or 'Cause’. For such, as well as other key concepts,
one must borrow from the literature of the period, and even that literature
is not uniform in its employment of terms. It is the fine-reading which
makes the terms precise. One such instance is to determine what is meant
by Mind. Each major mediaevalist has a different theory about how Mind °
operates and what its nature is. For the legal scholar he must draw upon
8. Leges, 66,1 at page 209. : : .
* A distinction between 'accidental' and 'non-purposeful' might entail this reasoning. An accident may have been avoidable or not (by care or means taken by the agent), whilst a non-purposeful happening means
that the event was out of control of the agent, and he could not
have reasonably taken precautions to prevent its happening.
'Intellectus' is how I have rendered Mind. The Latin concept has a wider range than our present term ‘mind’, but is suitable here. C
138 y. — Y Y y
; ; the broad classifications of the period. The literature on this period, Y ; -Y;
Y : from the Eleventh through to the Fifteenth Centuries, is yet sparse; and ; : /
yy. Y f ■ ; y Y t h e texts, many of which are of major figures, are yet unedited—
Y ' Z ZyYyZ Y y > ' It would be an unwise reading%of the Leges to require of it Y yYYZY:
Y a conceptual refinement it does riot possess. As a skeletal structure. Y . *:
;Y : s Y it possess avenuqs and branches upon which developing legal notions YYY/yy -Y
y could grow, and then develop towards a. maturity. If one wishes to
y ; make legal locations, the work can be used rather much as a common ;
; law Pausanias, showing how certain rudimentary legal operators had
. found themselves in a budding legal structure. Degrees of guilt Y.yY; Y y Y y Y
; ■ z would operate within the legal structure y an adjectival method ; Y Y Y
. . ; :. would begin to function in which 'mindI would have to be qualified as; Y, Y Y
Y , being a 'guilty' 'mind' to which guilt was assigned. The language yY•■yv*
Y Y Y Y;; may appear to seem unnecessarily Platonic, speaking as one would about .
the realm of the mind arid the realm of the body, biit it should be re- y '
y ;, ■ called that the early moral apparatus was Augustinian in nature; an Y £
Aristotelian refinement of terms will not enter into the literature Of Y Y Z Y y
y :' the age until, approximately, 1215 A.D. when that corpus was made ...YyyyY ; >Y
V y ; -y. available to the scholars at Paris, and elsewhere in the younguniversities*— Y
Y , 9. . The major work of the period with regard to its moral concepts and:i Y Y/ Y Y :y •) Y - " - Y to its pyschological notions ( as to how the soul 'functions') ..is Y Y y y Z Y Y
;; : still D. Odon Lottin's, Psychologie Et Morale Aux XIIe Et XIII , v :
}' Y Siecles, as published by Abbaye Du Mont Cesar (Louvain, Belgique, ' y y y Y Y y Y 1949) and J. Duculot, its editor, at Bembloux (Belgique) . There is- Z Y Y > Y Y
? still not a published text of Stephan Langton's works* and one must ..Y Y Y Y :
Y ./■ v Y be a manuscript scholar to be able physically to read the script'of y y y ZYzYY the text, one of which copies is at St. John's College, Cambridge. ^Y-YYviyY
; y Legal philosophy and jurisprudence from 1100 to 1500 is a subject YYv; Y y
which is riot even in its infancy; it is, at-best, in a foetal stage J YYj
• :Yy C Y YYy. of development. • y;. :Y" y .; • . y;,y?;;Y
y 10. Leges, sections c.90 ff . ;c.91 ff ;;c . 9 2 ff.; c. 93 ff. and c Y 9 4 y
I
y . The notion of a mental intention enters the common law from
mixed sources. The Leges uses the language of intention, but it does
not refine that language. We read, for instance, that ”No one is
obliged to make amends for his Own child whom he did not kill intentional
ly,.. .” Again we read, ” If anyone, while he is endeavouring to separate
persons fighting among themselves, is killed, though innocent, either
intentionally or through the negligence of the disputants, the one who
slew him shall pay amends....” * Differences in the quality of an act -
V: are reflected by use of this mental distinction, * ” But there shall
be some difference of result depending on whether someone asked the man
who is killed to join him in the task, or whether he came of his own ;
volition....” The sole use of ’intendit* occurs in this passage, when
we read, ” ....[Wjhere a man intends one thing and something else results
y . (where what is actually done is the subject of the accusation, and not the
intention) the judges shall...fix a compensation....” At section
. 12. 88,8: ”Nemo ipsius suum infantem reddere cogatur quern uoluntarie
: non occidit.,.” at pages 272-73 of* Downer. vy ;
13. 90,1: ”Si quis dum inter se dimicantes diuidere satagit ex industria uel incuria decertantium occidatur innocens reddat eum qui occidit quamuis rixam non incepit.” at pages 278-79 of Downer.
14. 90,6b: ”Distantis uero sit si quis eum ad opus suum rogauerit et si sponte aduenerit,. . .” at pages 280-81 of Downer.
: 15. 90, lid: ” ...ubi homo aliud intendit et aliud euenit (ubi opus
■ y ;-yV';:' V accusetur, non uoluntas [italics mine]).. .iudices statuant...” at
140
72, 2b of the text, following upon a statement that homicide (72,2) can
be committed either by accident or by design (consilio), we read of the
use of ’possibilitatem’ to mean •intention’, as in,’The intention of the
penitent when doing a good work.', but the meaning of the term in post-
classical Latin is taken generally to indicate that one has the power
to undertake to do, and it should be read as a dispositive noun, one
taking a clue that it is feminine in gender (possibilitas, atis, f.).
It is not normally associated as a synonym for intentio. We will find
that the early law follows along the pathway of sacramental theology
on the general notion of intention by accepting variants of the notion
that an outward deed is itself an expression of an inward state of mind.
The sacramental refinement of this general notion is well-known to
theological writings; its logic, however, was not well-known, or well-
formulated by early common law jurists, and, I would suggest, many of
our m o d e m difficulties, both with the range and scope of mens rea and
actus reus, stem from too easily accepting what were general theological
notions, which worked in one sphere, and forcing them to work in another
sphere without determining how one sphere, the sacraments, differed from
another sphere, the law.; - . The language which will describe a serious
act, such as homicide, will (for the most part) be volitive language, and
will not be a special language which picks out a mental state or depicts
a mental event. When Ivo of Chartres speaks of homicide ‘ he speaks of
16. Cf. Principles of Sacramental Theology, by Bernard Leeming, S.J., ;
for a clear statement of the notion of sacramental intention. One may consult Chapter Fourteen, "The Doctrine of Intention", pp 435-61, - a r i d Chapter Fifteen, "Presumption of Intention", pp 462-496, (Longmans,
141
it in terms of the Will *7 ‘He does; it is to be admitted, make reference
to a guilty mind, but he does so Within the context of lying, and hot
18.
A
•:>AAv
';'::A'
d ■ ■■■■A.
;.#*:of killing. It is the early volitive tradition, with its adherence to
Augustine, and later Augustinian interpretation, which first finds its
way into rudimentary notions of intentional acts. A
When we turn to Bracton's De Legibus we enter a period of
the common law in which religious sources are drawn upon for the »
purpose of transmuting them and making from their impetus a legal . .
tradition outside of theology. This period of the common law, like A ;;
the history of the inception of the Inns of Court and of our English yA
legal traditions, is marked by obscurity. The obscurity arises from AA,
not possessing clear and precise texts, from not having clear and A
precise editions of major theological writers, and from not having ;-yA;A%
records which can easily tell one what happened during the period. A
One assumes that the community of scholars was small and intimate A:
enough for their writings to be known, and we butress such an assumption
by trying to show various textual similarities to be found in a writer,
17. At CAP. 39, when speaking about punishment, Ivo replies that a ;A A punishment accrues to the type of act, " Si quis voluntarie homi- cidium fecerit, ad januam ecclesiae catholicae semper subjaceat, et communionem in exitu vitae sue recipiat. Si autem non ex voluntate, sed ex casu aliquo homicidium fecerit, prior canon
septem annis agere poenitentiam jussit, quinque secundus mandavit." DECRETI PARS X, at col. 702, (PL, 161:1), Paris, 1889. The language is familiar from the early Councils when the severity of a penance was to be determined by how fully a penitent had consented to an
act. If one did an act rex casu1 then such precluded that one
had acted from evil prededTtation, and may, or may not, have been
careless. It could be open to question if by accident also entailed
that one1s moral character (as in culpa) may have contributed to the
accident. It may have been an ’accident' but one which resulted from
’carelessness’; or it may have been an accident, pure and simple. ; 18. Cf . D£ Mendacio, PL, 161:1 at cols.. 1333-1338, 0£. cit; A A
i
142
or, if not by locating direct textual similarities of language, >
then one may search out for similarities of tone or sentiment or
style in argument, for the legal philosopher the method is both
helpful and useful, but he should not make the method of the legal
historian and textualist his own method. The two ways of seeing
a text are different. The legal philosopher hopes to withdraw an
argument;and its implications from a text; the legal historian is
v - ",V; : 19 - v- - . . v/ :- Y
content, very often, with locating a source * for a concept.
19. I wish to reduce to a footnote an example of what I mean.
When Professor Maitland pioneered in developing early English legal history he produced a number of valued texts, and made comparisons from historical sources in order to throw light
; . upon a legal past clothed fairly much in darkness. When he
edited selections from the writings of A20 and Bracton (Selden Society, vol. 8, 1894, as published [then] by Bernard Quaritch,
. 1895: London) he had, by use of an appendix, attempted to show
that Bracton*s attitudes towards homicide were, in part, found
to have been derived from an exposition on the subject by Bernard , of Pavia. By the method of textual comparison, Maitland re- Y
: produced the text he had of Bracton, and the text he had of
Bernard of Pavia, over pages 225-235 of the volume. The;text ,V for Bernard was that which had been prepared by E.A.T. Laspeyres,
and it was entitled, Bernardi Papiensis Summa Decretalium, printed at Ratisbonae by G. Iosephum Mans, MDCCCLXI, even though Maitland
listed the publication date as i860. In the text of Laspeyres
TITULUS X is to be found in Liber V, and it is entitled, **De homicidio voluntario v e l casuali”, pp. 219-224. In the edition , which I consulted one can observe that a final text has yet to :V"Y;Y be produced of Bernard’s text, so much textual apparatus of variant texts there is to be found reduced to footnotes by Laspeyres. What Maitland- did, and I need not reproduce it here, was to show how passages from Bracton ( in the impoverished edition which Maitland
; : had of the text in 1894 ) matched in style (somewhat) and in tone
what had been composed by Bernard of Pavia on the subject, and he concluded that from Bernard the major subject matter of Bracton .
on homicide had been derived. ‘ ; ; • : • : ;
143
19. cont.,
The portion of Bracton to which Maitland refers is now to be •.
found in the superb edition prepared by Professor T h o m e of Harvard ( Harvard University Press and The Selden Society, 1968) at folio 120, and it is entitled ‘'The crime of homicide and the divisions into which it falls." [ De crimine homicidio et qualiter dividitur ], occupying that portion of De Legibus which is con cerned with Pleas of the Crown, beginning at page 340 of the
Thorne edition. .: V'; •7 '• ^ ; j ■ .
If we note that Bernard of Pavia died in 1191 A.D., the textual influence is plausible. The composition of De Legibus is thought to date from the 1250*s, and its emendations place it near to
1268-1277, when, it is supposed, the redactor(s) gave us the V
book we now have. But this is a matter for the textualist to
decide. With the death of Raymond of Pennafort at 1275 A.D.,
and considering the time of the composition of De Legibus, axi-
other textual scholar, F. Schulz argued that Raymond of Penafort (his spelling) was the derivative influence for Bracton's position (in folio 120) on homicide. In THE LAW QUARTERLY REVIEW ( July, 1945, pp. 286-292 ), Schulz argues his thesis by presenting the
Latin texts of both Bracton and Raymond de Penafort. He used ;
the Woodbine edition for Bracton; while for Raymond he used the ■
edition of 1603, which I shall cite properly, and an unpublished manuscript: Bodleian MS. Selden Supra 87 (Summary Catalogue no. 3475) which, in folios 5 through 46, contained the Summa de casibus of Raymond and was, in this manuscript, a copy which was written
in England in the late 13th century. ' j , ; / v /
The copies which I consulted were from the holdings of the library of Heythrop College, London* and not the Bodleian holdings which Schulz consulted for his article. The edition from Rome is dated 5 November 1603, and its proper title, not given by Schulz, is: • ^ SVMMA Sti. RAYMUNDI DE PENIAFORT BARCINONENSIS, ORD. PRAECICATOR. DE POENITENTIA ET MATRIMONIO, Cum Glossis Ionnis De Friburgo
(Nvnc Primvm in lvcem edita), Roma sumptibus Ioannis Tallini. The next edition I consulted was that which Schhlz did not like
because he claimed that it confused a reader by incorporating ;
into the text of Raymond commentaries other than his own which ^
he cited or used. This is the Veronae edition of MDCCXLIV, Ex > Typographia Seminarii, Apud Augustinum Carattonium, and its title is: SANCTI RAYMUNDI DE PENNAFORT, Ordinis Praedicatorum, SUNWA, which was a revision of the edition of MDCCXX. It may be a matter
of personal taste, but this edition is not confusing. It puts /
144
19. cont.,
material in this way, it saves the reader the necessity of
having to use a Vatican Library to find material. The edition '
is, I would urge, therefore of much use. •.7 ■. ’
The judgement which a legal philosopher may wish to make about the historical research of both of these scholars: is that it
does show that common law concepts did not originate solely from V
within the method of the common law itself. No doubt both Bernard of Pavia and Raymond of Pennafort are writers from whom Bracton, or his redactor, may draw, and one must bear this
historical influence in mind. It does not close the case. The ;
state of manuscript research into this sphere of mediaeval ^
scholarship is in its infancy. Schulz states that there existed other manuscripts in the hands of private collectors which he could