Henry de Bracton
Henry of Bracton, also known as Henry de Bracton, Henricus Bracton, Henry Bratton, and Henry Bretton, was an English cleric and jurist.
He is famous now for his writings on law, particularly De legibus et consuetudinibus Angliæ , and his ideas on mens rea. According to Bracton, it was only through the examination of a combination of action and intention that the commission of a criminal act could be established.
He also wrote on kingship, arguing that a ruler should be called king only if he obtained and exercised power in a lawful manner.
In his writings, Bracton manages to set out coherently the law of the royal courts through his use of categories drawn from Roman law, thus incorporating into English law several developments of medieval Roman law.
Life
Plucknett describes Bracton in this way: "Two generations after Ranulf de Glanvill we come to the flower and crown of English jurisprudence – Bracton." Bracton was born around 1210 in Devon and had a great deal of preferment in the Church. He derived from either Bratton Fleming or Bratton Clovelly. Both villages are in Devon. It was only after his death that the family name appears as Bracton; during his life, he was known as Bratton, or Bretton. This originally may have been Bradton, meaning "Broad Town". Bracton first appeared as a justice in 1245. From 1248 until his death in 1268 he was steadily employed as a justice of the assize in the southwestern counties, especially Somerset, Devon and Cornwall. He was a member of the coram rege, also called the coram ipso rege, later to become the King's Court. He retired from this in 1257, shortly before the meeting of the Mad Parliament in 1258 at Oxford. It is unknown whether his retirement was related to politics. His leaving coincided with the onset of the notorious Second Barons' War in 1264. At that time Bracton was ordered to restore to the Treasury the large store of plea rolls that had been in his possession. He was also forced to surrender the large number of rolls from his predecessors Martin Pateshull and William Raleigh, also known as William de Raley. It cannot be determined whether he disgraced the King or the barons in this affair, but it is speculated that some kind of political intrigue was involved. The practical result was that his major work, De legibus et consuetudinibus Angliæ, was left unfinished. Even so, it exists in four large volumes today. He continued to follow the assizes in the southwest until 1267. In the last year of his life he filled another prominent role, as member of a commission of prelates, magnates and justices appointed to hear the complaints of the "disinherited" – those who had sided with Simon de Montfort, 6th Earl of Leicester.Bracton apparently had access to the highest stations of Church and State. He was an ecclesiastic. In 1259 he became the rector of the Devonshire parish of Combe-in-Teignhead and in 1261, the rector of Bideford. In 1264 he was made the archdeacon of Barnstaple and in the same year, chancellor of Exeter Cathedral. In 1245 he enjoyed a dispensation enabling him to hold three ecclesiastical benefices. He was buried in the nave of Exeter Cathedral, in front of an altar bearing his name. He had established a chantry for his soul that was endowed from the revenues of the Manor of Thorverton.
Bracton chose the words of Ulpian to describe the legal profession: "Ius dicitur ars boni et aequi, cuius merito quis nos sacerdotes appellat: iusticiam namque colimus et sacra iura ministramus." Ulpian was an influential Roman jurist in the second century, whose writings were revered in medieval Europe. Bracton felt himself to be, metaphorically, a priest of the law, "a priest forever in the order of Ulpian," a playful allusion to the Melchizedek priesthood.
Influences: Pateshull and Raleigh
Two legal predecessors directly influenced Bracton. The first was Martin de Pateshull, one of John of England's clerks, who became justice of the bench in 1217, and in 1224 was one of the itinerant justices whom Falkes de Bréauté attacked. Bracton esteemed Pateshull highly and remarked, "In any list of regular justices, Pateshull's name so constantly precedes all others that he must have enjoyed some pre-eminence, though perhaps not of a definitive kind." Pateshull was archdeacon of Norwich Cathedral and dean of St. Paul's Cathedral. His capacity for hard work was such that a brother justice asked Hubert de Burgh to excuse him from going on circuit with Pateshull on the ground that he wore out his colleagues by his incessant activity. Of his abilities as a lawyer, Bracton's appreciative citations speak eloquently. He appears to have gained his reputation as a lawyer, pure and simple. He died in 1229.The second great influence on Bracton's thinking was William Raleigh, also known as William de Raley, a native of Devon. He was a resident in and around Bratton Fleming in Devon in 1212, when Bracton was born there. Raleigh was a justice of the bench in 1228. In 1234 he pronounced reversal judgment of Hubert de Burgh, 1st Earl of Kent's outlawry. Though he was not a justiciar, he was regarded as the chief among judges. In 1237 he was appointed treasurer of Exeter Cathedral. He was elected to the See of Winchester in 1238 and passed from legal history. His election to this position was violently opposed by the King who favoured William of Valence. In 1239, Raleigh was elected to the See of Norwich. In 1244, he was elected to the See of Winchester for a second time. He died in 1250. He had much to do with the passage of the Statute of Merton. Raleigh defended the refusal of the barons to change the law of bastardy and legitimation. He invented the writ Quare ejecit infra terminum and was influential in the writing of several other novel writs. It is from Bracton that we get the majority of the history of the law at the time. Bracton is thought to have had a notebook with 2000 cases from Pateshull and Raleigh.
Raleigh granted lands to Bracton in Flemmings of Bratton, who held it through his wife's family. Her name was Beaupre. Raleigh was Pateshull's clerk. Later, Bracton became Raleigh's clerk.
Cosmopolitan outlook
Bracton imbued the courts of his day with a broad, continental or cosmopolitan outlook. The incorporation of Roman law began with Ranulf de Glanvill 140 years before. This is demonstrated in Leges Henrici Primi. There is some controversy about the true nature of Bracton's Romanism. Henry Maine regarded Bracton as a complete fraud, who tried to pass off sheer Romanism as legitimate English law. Bracton should for that be completely dismissed as a figure of substance in the formation of English law. Frederic William Maitland held the opposite view, positing that Bracton had no real knowledge of Roman law and the portion that he proclaimed was incomplete and shallow. They were of the opinion that most, if not all, of the Romanism of Bracton had been derived directly from Azo of Bologna, written before 1211. It has proven to be difficult to pinpoint the exact nature of Romanism in Bracton.When England was conquered by the Normans in 1066, it came under the influence of the most progressive and best governed system in Europe. It also brought a connection with the entire intellectual life of the Continent that had been absent in the Anglo-Saxon days. Foreigners came to England to study. English youth attended European universities. The only English Pope in history, Pope Adrian IV was elected in 1154. That can be attributed to Norman influence. On the Continent in the 12th and the 13th centuries, there was a renaissance in all learning, especially in legal concepts and writing. In Europe, Irnerius, the Four Doctors and Accursius revived the study of civil law. These established the school of the Glossators. Gratian systematised canon law. The Lombard Libri Feudorum and the French Beaumanoir reduced to some sort of order the customary feudal law of Europe. Ranulf de Glanvill and Bracton did the same thing for England by following the spirit of the Continent.
Bracton was influenced by an early 12th-century lawbook, Leges Edwardi Confessoris. It is a collection that purportedly recorded the laws and customs current in the time of Edward the Confessor at the behest of his successor, William the Conqueror.
William reorganised the land structure in a piecemeal fashion by following the reduction of resistance in various parts of England. His major lords were granted new titles of the land, but the Anglo-Saxon legal structure was left largely intact, including the traditional sheriff and courts of shire and hundred. Maitland is of the opinion that the law of William I and his successors was biased in favour of all things West Saxon and the Church and eschewed and denigrated all things Danelaw. Bracton freely intermixes the Middle English terms such as sac and soc, toll and term, infangthef, utfangthef, thane, dreng, sokeman, hide, geld, hundred, wapentake, bote, and wer with Norman French terms such as baron, count, viscount, vavasor, villein, relief, homage, manor.
Writings
His written work, De legibus et consuetudinibus Angliæ, was composed primarily before c. 1235. Most of the text was likely written by William of Raleigh and was then passed along to Bracton, who was his clerk. Bracton's contribution was largely to update the text to include, for example, changes made in the provisions of Merton in 1236. However, the true nature of Bracton's work is not clear. Pollock, Maitland, and Plucknett credit the work more to Bracton and less to the influence of Raleigh. These scholars date the work to a later time, closer to 1260. The work was never completed. According to these authors, the Second Barons' War ended the writing. Bracton had access to many rolls of recorded law cases from the King's court. These were called plea rolls and were usually not publicly available. It is probable he was forced to surrender these before his book was finished. Even in its unfinished state, it is the most thorough English medieval law book. He also likely had access to the cases of Martin Pateshull and William Raleigh, his mentors in the law. A notebook containing 2000 cases from Pateshull and Raleigh has been deemed to be Bracton's. This book contains notes written in the margin that are in Bracton's handwriting. He incorporated the information from these cases in his book. Bracton also studied noted Italian lawyer Azo of Bologna. He was familiar with Corpus Iuris Civilis, the Decretum and the Decretals, as well as the works of the canonist Tancred of Bologna. He became familiar with, and an advocate of the Latin concept of Universal Law or Natural Moral Law, based on his reading of these sources. Bracton would have been familiar with the description of natural moral law applied in the Decretals: "The natural law dates from the creation of the rational creature. It does not vary with time, but remains unchangeable." He also was familiar with Isidore of Seville or Isidorus Hispalensis who wrote of law: "In determining the nature of law, there must be three conditions: the fostering of religion, in as much as it is proportionate to the Divine law; that it is helpful to discipline, in as much as it is proportionate to the natural law; and that is further the common weal, in as much as it is proportionate to the utility of mankind." Bracton used these works as a basis for his legal philosophy. Certain Latin terms, such as "corpus et animus" being necessary for possession under the law, are seen in Bracton that would appear to be ecclesiastical in origin.Based on Bracton's notes and writing, Pollock and Maitland believe that he was neither a courtly flatterer nor a champion of despotic monarchy. At other times, he may be accused of distorting: "sed et quod principi placuit."
Bracton's work became the basis for legal literature of Edward I of England. Gilbert Thornton, the chief justice of the king's bench made an epitome of it. This has been lost.
The earliest mention of Roman Law in the Common Law of England is found in 1237–1238, discussing a question of whether a palatinate can be partitioned among co-heirs. The justices could find no precedent for such a thing in English law, nor in the Magna Carta, nor in Roman Law, therefore, they adjourned their decision. In Bracton's time, it had been determined that the Emperor of the Holy Roman Empire was deemed to be a subject of the King of England while in England: Ricardus Rex Alemanniae was impleaded for novel disseisin.
Bracton studied the form of the original writs. He procured, for his own use, complete transcripts of the pleadings in selected cases. These were used to write his treatise on the law. He was also the first to offer commentary on the cases he wrote about. In this way Bracton was modern; he criticised and praised various decisions. He called those who were a generation before him, his "masters". The cases he wrote about were at least twenty years older than his book. His writing is not like a modern legal treatise comparing case results. There is no concept of case law as one would find in a modern text book. He selected cases and wrote a general description of what the law should be in a given set of circumstances. There was no real stare decisis. He gave descriptions of what the decision should be in hypothetical fact situations, without mention of actual cases. He also included many sample writs for various situations. Bracton chose cases based on his admiration for the judges involved, and wanted to make exemplars of their logic. The inclusion of case law was important, because it was the first time this had occurred in English legal writing. Lawyers for two centuries were introduced to the concept of case law and legal logic by Bracton's book. A new and modern course was set.
Later manuals, based on Bracton's example contained actual case law, with the captions removed. The ability to read actual cases and decisions, as well as the logic behind them was revolutionary in Bracton's time. The rolls from the court records would not have been available for inspection to anyone. His treatise changed this, forever. The ability to read cases, even if they were more than twenty years old, proved popular, leading directly to publication of the Year Books The first Year Book extant was published the year that Bracton died, 1268.