Henry de Bracton - Modern Liability Traced Through Bracton

Modern Liability Traced Through Bracton

Modern liability can be traced from ancient Anglo-Saxon law through the time of Bracton. From Alfred the Great: "A man acts at his own peril. If a man have a spear over his shoulder, and any man stakes himself upon it, that man will pay the wer but not the wite... if he be accused of wilfulness in the deed, let him clear himself according to the wite, and with that, let the wite abate. And let this be: if the point be three fingers higher than the hindmost part of the shaft; if they both be on the level, the point of the hindmost part of the shaft, be that without danger. If a man leaves his arms about, and another knocks them over so that they kill or injure a man, the owner is liable. If a man lend his horse to another and the borrower is injured, the lender is liable." This is similar to the modern concept of strict liability in tort. Liability, at that time, was not dependent upon negligence, but the act.

A Borough Customs proclaimed that a defendant must swear an oath that he had done nothing to a slain person that had put him "nearer to death than from life."

Ancient law could not discuss the question of intent because it had no mechanism to do so. Offences that were not criminal could be made the ground for appeal of homicide, if they could be put forward as conducing, however indirectly, to death. This idea persisted to the time of Bracton. An oath was required of a man accused of a homicide.

Judge Brian wrote in 1466 (200 years after Bracton): "In my opinion, if a man does a thing he is bound in such a manner that by his deed no injury or damage is inflicted on others. As in the case where I erect a building, and when the timber is being lifted a piece of it falls upon the house of my neighbor and bruises his house, he will have a good action, and that, although the erection of my house was lawful and the timber fell without my intent. Similarly, if a man commits an assault upon me and I cannot avoid him if he wants to beat me, and I lift my stick in self-defense in order to prevent him, and there is a man behind me, although my lifting my stick was lawful to defend myself and I injured him without intent ."

In the laws of Cnut the Great it was said that concerning stolen property, an infant was as guilty as if he had discretion. Under Henry I of England, "The man whose conduct has only remotely caused death or injury is liable, it is true, but 'in hiis et similibus, ubi homo aliud intendit et aliud evenit, ubi opus accusatur non voluntas, venialem pocius emendacionem, et honrificenciam judices statuant, sicut acciderit'" The man who has killed by misadventure or in self-defense is liable to pay the wer but his wrong is emenable.

Under Henry I of England "who sins unwittingly shall knowingly make amends" though the lunatic and infant were not liable in criminal acts, which was a change from Anglo-Saxon law. Bracton wrote of homicide, "the crime of homicide, be it either accidental or voluntary, does not permit of suffering the same penalty, because on one case the full penalty must be exacted and in the other there should have been mercy." It is the first signs of discrimination in the law leading to the development of the concept of mens rea (a guilty mind being necessary to be guilty of a crime). Bracton stressed the animus furendi in theft, that is the intention to steal. Felony is according to intent, a concept that has its foundations in Bracton.