Henry de Bracton - Writings

Writings

His written work, De Legibus et Consuetudinibus Angliae ("The Laws and Customs of England"), 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 (or actual possession of) 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 (Body of Civil Law), 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 (c. 570-636) 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" (body and soul) 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, in which 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 (in iure scripto), therefore, they adjoined (delayed) 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 (Rex Romanorum semper augustus) 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 criticized 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 examplars 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 (thirteenth and fourteenth 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 (compilations of court cases for the year) extant was published the year that Bracton died, 1268.