Henry de Bracton
Henry de Bracton was a notable 13th-century legal scholar and judge in England, often regarded as a foundational figure in the history of common law. Born likely during the reign of King John, his early life remains largely undocumented, although he is traditionally linked to the West Country of England. Bracton was educated at Oxford University, where he pursued studies leading to degrees in the arts, before embarking on a career that combined ecclesiastical duties with judicial responsibilities under King Henry III.
His most significant contribution to legal scholarship is the treatise "De legibus et consuetudinibus Angliae," composed around 1259, which sought to systematically compile and clarify the evolving body of English law. This work was notable for integrating concepts from Roman law, reflecting the broader intellectual currents of his time, and it has been influential in shaping the understanding of constitutional principles. Bracton's writings emphasized the notion that while the king held supreme authority, he was still subject to the law, a position that has sparked much debate among scholars.
Bracton’s legacy endures, as his treatise laid the groundwork for subsequent legal works, making him a central reference point for understanding English law until the late 17th century. His impact on legal thought has been recognized through the survival of numerous manuscripts of his work, solidifying his reputation as a pivotal figure in the development of the common law tradition in England.
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Henry de Bracton
English jurist and legal scholar
- Born: Early thirteenth century
- Birthplace: Devon or Somerset, England
- Died: 1268
- Place of death: Probably Exeter, Devon, England
Bracton was the author of a comprehensive account of the common law of England as it had developed to the middle of the thirteenth century. His book was extremely influential throughout the medieval period and was consulted by legal authorities through the sixteenth and seventeenth centuries.
Early Life
Nothing is known of the early years of Henry de Bracton. He probably was born during the reign of King John (r. 1199-1216), and on circumstantial grounds, his birth and upbringing have been linked with the village of Bratton Clovelly, with Bratton Fleming in Devon, or with Bratton Court in Somerset. Tradition has long associated him with Oxford University, although like a number of English men of learning of the thirteenth century, he may also have studied at Paris or Bologna, the latter already celebrated as a center for the study of Roman law, with which, as is clear from his writings, Bracton was well acquainted.
At Oxford, Bracton would have taken courses to qualify first for the baccalaureate and then for a master of arts degree, and although his subsequent career was to be that of a judge, his formal education and his social status were those of a cleric. Furthermore, his employment by the Crown was paid for with income derived from clerical patronage. He was, for example, a canon of Wells cathedral from 1247 or 1249 until his death in 1268. Toward the end of his life, he enjoyed quite lucrative ecclesiastical preferment. He held a prebendary stall at Exeter (that is, he was in receipt of a stipend as a canon of the cathedral there) and another at Bosham (now West Sussex), both in the gift of the bishop of Exeter. In 1263, Bracton was named archdeacon of Barnstable in Devon, resigning after a few months in order to assume, in 1264, the chancellorship of Exeter cathedral. Because his successor in that position was inducted in September, 1268, it is likely that Bracton died some time before that event. His connection with Exeter and the patronage provided by its bishop indirectly confirms the tradition that his family roots were in the West Country.
Life's Work
Bracton's adult life was spent in the service of Henry III, primarily as a judge. Typical of the bureaucratic character of Angevin government during the thirteenth century, Bracton's career was that of a royal “clerk,” well educated in the ecclesiastical learning of the age, who was recruited to the king's service to be employed thereafter in affairs of state and, in particular, in the increasingly busy world of the royal courts of justice. This was important and exacting work, and it could be well rewarded, offering opportunities for substantial advancement for able men, including persons of relatively obscure social background.
Little is known of the details of Bracton's career. He apparently joined the royal service in 1239, and he may have owed his early advancement, at least in part, to the patronage of the king's brother, Richard, earl of Cornwall, later king of the Romans, from whom, in 1242-1243, he held a knight's fee (land held on condition of homage and service) in Alverdiscott in Devon. At the outset of his career, Bracton's earliest judicial patron was William Raleigh, an eminent judge who in 1239 became bishop of Norwich and in 1242 bishop of Winchester. The seventeenth century antiquary Sir William Dugdale stated that in 1245 Bracton acted as an itinerant justice of assize for Nottinghamshire and Derbyshire. For 1246, he served as a member of a judicial commission sent to Northumberland, Westmoreland, Cumberland, and Lancaster. He is also named in the records of Waltham Abbey for that same year, together with two other justices known to belong to the curia (the king's court), strongly implying that Bracton also belonged. There are further references to him as an itinerant justice for the western counties between 1260 and 1267. It may be assumed, therefore, that during at least the middle decades of the thirteenth century, he was fully occupied on judicial business, either in court at Westminster or as a traveling justice of assize. There is a late tradition that he became chief justice of the realm, but no mention of this appears in the contemporary records. Presumably, his posthumous reputation as a great authority on the law accounts for this supposition.
Bracton's fame and his unique place in the history of the common law are almost exclusively attributable to his authorship of the treatise De legibus et consuetudinibus Angliae (c. 1235; Bracton on the Laws and Customs of England, 1968). Much discussion has centered on when he completed this enormous undertaking, but the widely accepted date is 1259. Bracton's was certainly not the first attempt to contain within a single work the ever-expanding corpus of royal enactments and judge-made case law. Bracton's book had a famous predecessor, Tractatus de legibus et consuetudinibus regni Angliae (c. 1188; treatise on the laws and customs of the kingdom of England), attributed to Henry II's justiciar, Ranulf de Glanville.
Glanville's work, however, was inevitably superseded by Bracton's larger and more comprehensive compendium, which was both a practical handbook for judges and also an attempt to provide a coherent, systematic account of the way in which the common law had taken shape. This most formidable undertaking required of its author not only very extensive practical experience of the day-to-day workings of the courts, which he undoubtedly possessed, but also a lucidity of mind and an intellectual breadth of understanding capable of reducing to a meaningful synthesis what had hitherto been an inchoate mass of custom (ius), law that existed since time immemorial, and law (lex), meaning royal enactments (the statutes and ordinances of later times) and the decisions of the king's justices.
In undertaking this task, Bracton can be seen as typical of the thirteenth century, an age of encyclopedic scholarship, of which the most characteristic monuments of intellectual endeavor are the theological summae of Thomas Aquinas, Saint Albertus Magnus, and John Duns Scotus. Bracton's achievement gains in perspective if placed beside the Sachsenspiegel (c. 1220; the mirror of Saxon law) of Eike von Repgow, the Liber Augustalis of the emperor Frederick II, Philippe de Beaumanoir's Coutumes de Beauvaisis (c. 1280-1283; The Coutumes de Beauvaisis of Phillipe de Beaumanoir, 1992), and other thirteenth century legal compilations. Since Gratian's Concordia discordantium canonum (c. 1140; harmony of contradictory laws; also known as Decretum Gratiani, Gratian's decree), the Decretalists had been shaping the canon law into an elaborate and sophisticated code to meet the growing needs of the Church. Parallel with this development, there had been a vigorous revival of Roman law, emanating from Bologna, where it had been studied since the time of Irnerius, and it had come into its own during the late twelfth century under the patronage of the German Hohenstaufen emperors. It was natural, therefore, that a very learned judge of a philosophical turn of mind at the English king's court would wish to go beyond the immediate demands of utility in order to provide the common law, which had grown up insulated from both the Roman and canon law traditions, with a firm intellectual framework.
The nineteenth century legal historian Sir Henry Maine argued that Bracton had attempted to force the common law into the conceptual framework of Roman law. Denying this, scholar F. W. Maitland maintained that Bracton simply sought to apply to it Roman law concepts in order to provide coherence. At the same time, Maitland felt that Bracton had drawn on analogies from Roman law without properly comprehending the latter system. Modern-day scholar Hermann Kantorowicz has put the case that Bracton's writings reveal that he possessed a genuinely broad legal culture. Bracton on the Laws and Customs of England shows that Bracton was thoroughly familiar with the code, the institutes and the digest of Justinian's jurists, with Gratian, and with leading contemporary works such as the two summae on the code and the Institutes of Azo of Bologna (1150-1230), the Glossa Ordinaria (the great gloss) on the digest of Fransiscus Accursius (1220-1250), and probably the writings of the Dominican canonist Raymond of Peñafort. He was also widely read in the nonlegal literary learning of the age.
It has frequently been remarked that Bracton's comments on English kingship are ambiguous and contradictory. Bracton was no political theorist, but he was emphatic that no authority existed on earth superior to that of the English king. At the same time, he held that the king was answerable not only to God but also to the law, a position that has provoked considerable discussion on the part of his commentators. Scholar Charles H. McIlwain, however, paid Bracton the ultimate compliment when he wrote that as regards “the true character of the general principles underlying the medieval English constitution there is no indication so clear as the book on the laws and customs of England by Henry of Bratton, or Bracton the greatest of medieval books on English law and constitutionalism, if not on the law of any European nation.”
Significance
Bracton codified the common law so well that virtually every subsequent attempt to give coherence to the apparent formlessness of English law has turned back to him as a first point of reference, at least until the close of the seventeenth century. Thus, within a half century of his death, the anonymous authors of the two legal treatises known as “Fleta” and “Britton” were based on his book, as was the compendium produced by Gilbert Thornton (chief justice of King's Bench, 1290-1295). It is significant that forty manuscripts of his bulky work have survived from before the invention of printing. None of these is complete, but the publication of the first printed version, which was complete, by Richard Tottell in 1569 ensured the availability of Bracton's work for later generations of legal scholars in the age of Sir Edward Coke, John Selden, and Sir Matthew Hale. More than Glanville, more than Henry II even, Bracton was the true father of the common law of England.
Bibliography
Bracton, Henry de. Bracton on the Laws and Customs of England. Translated by Samuel E. Thorne. 4 vols. Cambridge, Mass.: Harvard University Press, 1968. The definitive English translation.
Kantorowicz, Hermann. Bractonian Problems. Glasgow: Jackson and Son, 1941. Provides an important scholarly discussion and reevaluation of earlier research.
McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. 2d ed. Ithaca, N.Y.: Cornell University Press, 1947. Contains a brilliant review of Bracton’s contribution to the development of constitutional thought.
Maitland, F. W., ed. Bracton’s Note Book: A Collection of Cases Decided in the King’s Court During the Reign of Henry the Third. 3 vols. 1887. Reprint. Buffalo, N.Y.: W. S. Hein, 1999. An important source for the study of Bracton.
Maitland, F. W. Select Passages from the Works of Bracton and Azo. London: B. Quaritch, 1895. Useful for a comparative approach.
Plucknett, T. F. T. Early English Legal Literature. New York: Cambridge University Press, 1958. Bracton in the setting of his times by a distinguished historian of medieval legal history.
Richardson, H. G. Bracton: The Problem of His Text. London: Selden Society, 1965. An illuminating overview of the subject by a leading constitutional historian.
Schulz, Fritz. “Bracton on Kingship.” English Historical Review 60 (1945): 136-176. In this and a number of other articles, the author has made a major contribution to Bractonian studies.
Thorne, S. E. “Henry de Bracton, 1268-1968” and “The Text of Bracton’s De Legibus Angliae.” In Essays in English Legal History. Ronceverte, W.Va.: Hambledon Press, 1985. Explores Bracton’s life and work.
Turner, Ralph V. The English Judiciary in the Age of Glanvill and Bracton, c. 1176-1230. Holmes Beach, Fla.: Gaunt, 2001. Looks at the history of the English judiciary system in Bracton’s time.