Henry de Bracton - Influence

Influence

The reign of King John of England (1199–1216) was a time of great turmoil that produced, among other things, the Magna Carta and the Papal interdict of Pope Innocent III against John. Henry III of England (1216–1272) was a child of nine years when he ascended the throne. A few great nobles, encouraged by Pope Honorius III (1216–1227) spared the nation the turmoil that would have been expected when a child becomes king. Henry de Bracton arose as one of the greatest judges of all time during the middle part of the reign of Henry III. His case books would soon dwarf even the great work of Ranulf de Glanvill in both quantity and quality.

The Barons' War against Henry III began in 1258 with similar grievances as the previous revolt against King John in 1215. The Barons aimed to reduce the King's power, but they failed as they also had in 1215. An indirect result of this war was that Bracton failed to complete his great legal treatise. The forms of action in trespass "vi et armis", among other forms of action in trespass and seisin were developed at this time. The phrase of Simon de Montfort, 6th Earl of Leicester was, "Wars are the result of extra-judicial distress." This is an important observation to understand the time of Bracton. The use of war was another tool, beside the rule of law, for the powerful to attain their ends. The barons' grievances resulted in the Statute of Marlborough in 1267.

Plucknett writes "It was the mediaevalists in England, armed with Bracton and the Year Books who ended Stuart statecraft. The Constitution of the United States was written by men who had Magna Carta and Bracton, and Coke and Littleton before their eyes. Could anything be more medieval that the idea of due process or the insertion in an instrument of government a contract clause? 'Pacta sunt servanda' (Pacts should be kept) became a motto of Edward I. The result can be traced directly to the work and writings of Bracton.

It was Machiavelli who gave us the modern word "state" and fleshed it out to our present conception of it. In Bracton's time a state was defined by a king, based on the rule of law, which ultimately must end in and lead to the will of God. This is different today. The right is based on the will of the state.

Bracton was popular in his day. Several contemporaneous copies of his book are still in existence. However, several scholars, including Plucknett and Holdsworth believe that few actually followed Bracton's doctrine as defined by his writings. The growth of procedure overwhelmed the general (and genial) view and wide learning of Bracton. For a time, he fell completely out of favor. The printing press restored Bracton to prominence in English legal literature. The edition published in 1569 was described by Plucknett as "...perhaps the best printed law book we have ever had." Bracton's work appeared at an important time during the reign of Queen Elizabeth.

Bracton's liberal interpretation of the law (as expressed in portions of his book) were slow in taking root in English law. The decline of Bracton's influence in the middle of the fourteenth century coincides with Parliament's first assertions of its powers. Already, it had come to be the principal and only legislative body, and the dominant interest in it was that of the common law lawyers. This had become a narrow profession. The Crown adopted the practice of appointing judges from the leading practitioners of the bar. These also controlled legal education. There was no liberal outlook on the law. To these, Bracton's treatise must have seemed impractical and academic. Justice became more centralized.

Prior to Bracton, there was little use of stare decisis. This was because the rolls containing the court records were largely unavailable for scrutiny, even by judges sitting on the bench. Bracton's use of the rolls led to promulgation of recorded cases in the form of a gloss. This had been an important innovation based on the glossator's practice from the Continent. The availability of previous decisions, even if 20 or more years old proved to be of great interest to nearly all practitioners of the law. This led directly to the Year Books. A single unique decision did not make precedent. Custom began to be dictated when several cases of similar fact pattern were decided by different courts in the same way. This was the beginning of stare decisis.

Sir Thomas Smith, the Secretary of State for Queen Elizabeth wrote "De Republica Anglorum" in 1583. In it he set forth the truly fearful powers of the Crown and Parliament, which can make and unmake law, change rights and possessions of private men, legitimate bastards, establish religions, condemn or absolve (by attainders) whomever the Prince wills. Smith was no advocate of tyranny, but he clearly enjoyed enumerating an imposing list of powers of the Tudor state. In Bracton, on the other hand, the emphasis was not upon the power of the Crown, but in responsibility. The monarch was subject to God, to the law of the land, and to his feudal court. In Bracton, the king owed some responsibility to listen to his lords. (Recall that Bracton had observed and experienced the turmoil from the Barons' War, and lived in the backwash of the problems of John.) Bracton's writings became a de facto antidote to the absolutism of the Tudors and the Stuarts. Bracton brought an air of clarity, from his study of Roman order, to the confusion that followed the English Reformation. The anonymous re-publisher of Bracton recommends him as worthy of emulation, since the other books of the day were "indigesta confusio". The law under Elizabeth was medieval. The trend of the day was toward Romanism. Bracton was popular in the time of Elizabeth because he was available through the printing press. In later times, he was read because he was Roman. He was popular because he was medieval.