Dictionary of National Biography, 1885-1900/Bracton, Henry de
BRACTON, BRATTON, or BRETTON, HENRY de (d. 1268), ecclesiastic and judge, was author of a comprehensive treatise on the law of England. Three places have been conjecturally assigned as the birthplace of this distinguished jurist, viz. Bratton Clovelly, near Okehampton in Devonshire, Bratton Fleming, near Barnstaple in the same county, and Bratton Court, near Minehead in Somersetshire. The pretensions of Bratton Clovelly seem to rest entirely upon the fact that anciently it was known as Bracton. Sir Travers Twiss, in his edition of Bracton's great work, 'De Legibus et Consuetudinibus Angliæ,' inclines in favour of Bratton Fleming on the ground that one Odo de Bratton was perpetual vicar of the church there in 1212 (Rot. Lit. Pat. i. 93 b), when the rectory was conferred on William de Ralegh, a justice itinerant, whose roll, with that of Martin de Pateshull, Bracton is known to have had in his possession almost certainly for the purposes of his work. Bracton cites Ralegh's decisions less frequently indeed than those of Pateshull, whom he sometimes refers to with a familiarity which seems to imply personal intimacy, as 'dominus Martinus,' or simply Martinus (lib. iv., tract i., cap. xxvii., fol. 205 b, xxviii. fol. 207 b), but more frequently than those of any other judge. Ralegh was treasurer of Exeter in 1237. From these data, which it must be owned are rather slight, Sir Travers Twiss infers that Bracton stood to both Pateshull and Ralegh in the relation of a pupil, and that it was while the latter was rector of Bratton Fleming that he came into connection with him. Collinson, the historian of Somersetshire, is mistaken in affirming that Bracton, or Bratton, succeeded one Robert de Bratton, mentioned in the Black Book of the Exchequer as holding lands at Bratton, near Minehead, under William de Mohun, 12 Henry II (1166), and that he lies buried in the church of St. Michael in Minehead under a monument representing him in his robes, since it has been established by Sir Travers Twiss that Bracton was buried in the nave of Exeter Cathedral before an altar dedicated to the Virgin a little to the south of the entrance to the choir, at which a daily mass was regularly said for the benefit of his soul for the space of three centuries after his decease. At the same time, if Bracton was really a landowner in the neighbourhood of Minehead, a monument may have been put up to his memory by his relatives in the parish church there. It seems impossible to decide upon the claims of the three competing villages. Some uncertainty also exists as to the orthography of the judge's name, of which four principal varieties—Bracton, Bratton, Bretton, and Bryckton—are found. Bryckton may be dismissed without hesitation as corrupt, and Bretton is almost certainly a dialectical variety either of Bracton or Bratton. Between Bracton and Bratton it is less easy to decide. The form Bracton is held by Nichols to be a mere clerical error for Bratton, arising from the similarity between the tt and the ct of the thirteenth and fourteenth century handwriting. The passage cited by Sir Travers Twiss (i. x-xi, iii. liv-v) as evidence that the judge himself considered Bracton to be the correct spelling of his name appears rather to militate against that view. The passage in question refers to the fatal effect of clerical errors in writs. According to the reading of a manuscript (Rawlinson, c. 160, in the Bodleian Library) which, in Sir Travers Twiss's opinion (i. xxi, lii), has been faithfully copied from a manuscript older than any now extant (Bracton, ed. Twiss, iii. 212), the writer says that if a person writes Broctone for Bractone, or Bractone for Brattone, the writ is equally void. If any inference can be drawn from the passage, it would seem to be that, in the author's opinion, Brattone, and not Bractone, was the true form of the name. That it was so in fact seems to be as nearly proved as such a thing can be by a series of entries on the Fine Rolls extending from 1250 to 1267, i.e. during nearly the whole of Bracton's official life, and numbering nearly a hundred in all. While Bratton and Bretton occur with about equal frequency, no single instance of Bracton is discoverable in these rolls. Further, of five entries in Bishop Branscombe's register cited by Sir Travers Twiss, four have Bratton and one Bracton. The deed of 1272 endowing a chantry for the benefit of his soul speaks of Henry de Bratton, and so does the deed of 1276 with a like object. This chantry, which existed until the reign of Henry VIII, seems to have been always known as Bratton's chantry. The earliest extant biographical notice of Bracton occurs in Leland's 'Commentarii de Scriptoribus Britannicis' (i. cap. cclxxvi.) He says he took it 'ex inscriptione libri Branomensis bibliothecæ.' Bale, in his 'Illustrium Majoris Britanniæ Scriptorum Catalogus,' appropriates his account very much as it stands, adding only that Bracton was of good family, that his university was Oxford, and that he was one of the justices itinerant before he became chief justice. The reference to the 'Branomensis bibliotheca' he suppresses, probably because he could make nothing of it. Tanner, who also repeats Leland, tries to emend the text by inserting 'edidit' after 'librum,' and appends the following note: '"In Bravionensis seu Wigorniensis bibliothecæ serie quadam legi memoriaque retinui." Ita legit MS. Lel. Trin.' It is clear that in any case the passage is corrupt. The subsequent biographers of Bracton until Foss do little more than repeat Bale's statements, and these are only very partially confirmed by the records. Dugdale mentions him as a justice itinerant in Nottinghamshire and Derbyshire in 1245, and places him in the commission of the following year for Northumberland, Westmoreland, Cumberland, and Lancashire. As he is described as a justice in the record of a fine levied in this year, preserved in the Register of Waltham Abbey (Harl MS. 391, fol. 71), in close connection with Henry de Bathonia and Jeremiah de Caxton, both justices of the Curia Regis, it is probable that he was then one of the regular justices. Against this, however, must be set the fact that the series of entries on the Fine Rolls to which reference has already been made does not begin until 1250. After 1246 Dugdale ignores him until 1260, from which date until 1267 he mentions him pretty frequently as a justice itinerant in the western counties. After 1267 all the records are silent as to his doings. During a portion of his career he seems to have stood well with the king; for in 1254 he had a grant by letters patent of the town house of the Earl of Derby, then recently deceased, during the minority of the heir, being therein designated 'dilecto clerico nostro.' In 1263-4 (21 Jan.) he was appointed archdeacon of Barnstaple, but resigned the post in the following May on being created chancellor of the cathedral of Exeter. He also held a prebend in the church of Exeter, and another in that of Bosham in Sussex, a peculiar of the bishops of Exeter, from some date prior to 1237 until his death, which occurred in 1268, and probably in the summer or early autumn of that year, as Oliver de Tracy succeeded him as chancellor of Exeter Cathedral on 3 Sept., and Edward Delacron, dean of Wells, and Richard de Esse in the prebends of Bosham and Exeter respectively in the following November. He is known to have left some manuscripts to the chapter of Exeter by his will, and it may have been one of these that Leland saw, supposing 'Exoniensis bibliothecæ' to be the true reading. For the statement that he discharged the duties of chief justice for twenty years no foundation is now discoverable. During the earlier portion of his official life (1246-58) the office was in abeyance, and if Bracton was ever chief justice, it must have been either before 1258 or after 1265. It is possible that, while the office was in abeyance, the king entrusted his 'dear clerk' with some of the duties incident to it. It is also possible, as Foss has conjectured, that Bracton held the office during the interval between the death of Hugh le Despenser and the appointment of Robert Bruce (8 March 1267-8); but it is very unlikely that, if he was ever regularly appointed, no record of the fact should have survived. Of his alleged connection with Oxford it is also impossible to discover any positive evidence. That he was an Oxford man is intrinsically probable from the character of his treatise, 'De Legibus et Consuetudinibus Angliæ.' It bears such evident traces throughout of the influence of the civil law as to leave no doubt that the author was familiar not merely with the Summa or manual of the civil law compiled by the celebrated glossator, Azo of Bologna, but with the Institutes and Digest of Justinian, and Oxford was at that time the seat of the study of the civil law in this country. Moreover, Bracton's first two books, 'De Rerum Divisione' and 'De acquirendo Rerum Dominio,' have a decidedly academic air, for they are carefully mapped out according to logical divisions such as a professor writing for a society of students would naturally affect; and though, from a reference to the candidature of Richard, earl of Cornwall, for the imperial crown in the latter book (ii. cap. xix. § 4, fol. 47), it is clear that that passage was written as late as 1257, it by no means follows that the book as a whole does not belong to a much earlier date. At the same time, it cannot be affirmed with any confidence that Bracton could not have acquired the accurate and extensive knowledge of the Roman law which he undoubtedly did possess without residing in Oxford, and neither the title 'dominus' by which he is usually designated in ecclesiastical records, and which, as Sir Travers Twiss has pointed out, was the proper appellation of a professor of law at the university of Bologna under the privilege accorded by Frederic I at the diet of Roncaglia (1158), nor that of 'magister' given him by Gilbert Thornton (chief justice), who epitomised his work in 1292, can be relied on as necessarily importing an academical status. The date of the composition of his work is approximately fixed by a reference to the Statute of Merton (1235) on the one hand, and the absence of any notice of the changes in the law introduced by the Provisions of Westminster (1259) on the other. The work seems never to have received a final revision, and it is probable that the order of arrangement of the several treatises does not in all cases correspond with the order of composition. Bracton's relation to the civil and canon law has been ably discussed by Professor Güterbock of Königsberg, who agrees in the main with the view taken by Spence, that he did not so much romanise English law as systematise the results which a series of clerical judges, themselves familiar with the civil and canon codes, and using them to supplement the inadequacy of the common law, had already produced, a conclusion which is in accordance with the strictly practical purpose apparent throughout the treatise. This view is also adopted by Sir Travers Twiss. Bracton's position in the history of English law is unique. The treatise 'De Legibus et Consuetudinibus Angliæ' is the first attempt to treat the whole extent of the law in a manner at once systematic and practical. The subject-matter of the work is defined in the proem to be 'facta et casus, qui quotidie emergunt et eveniunt in regno Angliæ,' and to this he for the most part strictly limits himself, citing cases in support of the principles he enunciates in the most exemplary manner. Hence the influence of the work was both immediate and enduring. Besides the abridgment by Thornton, of which, though none is now known to exist, Selden had an imperfect copy, two other summaries of it were compiled during the reign of Edward I by two anonymous authors, one in Latin, of which the title 'Fleta' is thought to conceal some reference either to the Fleet Prison or to Fleet Street, the other in Norman-French known as Britton. Through Coke, who had a high respect for Bracton, and frequently cited him, both in his judgments and in his 'Commentary' on Littleton, his influence has been effective in moulding the existing common law of England. Some remarkable passages relating to the prerogative of the king (i. cap. viii. § 5, fol. 5; ii. cap. xvi. § 3, fol. 34; iii. tract i. cap. ix. fol. 107 b} were cited by Bradshaw in his judgment on Charles I, and by Milton in his 'Defence of the People of England,' as showing that the doctrine of passive obedience was repugnant to the ancient common law of this country. The bibliography of Bracton may be put into very small compass. A considerable portion of the treatise found its way into print in 1557, in the shape of quotations made by Sir William Staundeford in his 'Plees del Coron.' The first printed edition of the entire work was published by Richard Tottell in 1569 (fol.), with a preface by one T. N. (whose identity has never been determined), in which credit is taken for a careful recension of the text. The next edition (4to) appeared in 1640, being a mere reprint of that of 1569. In spite of the labours of T. N. the text remained in so unsatisfactory a condition that Selden never cited it without collation with manuscripts in his own possession. No other edition appeared until 1878, when Sir Travers Twiss issued the first volume of the recension and translation undertaken by him by the direction of the master of the rolls. The sixth and last volume appeared in 1883. For information concerning the apparatus criticus available for the establishment of the text reference may be made to vol. i. pp. xlix-lxvi of this edition, to the 'Law Magazine and Review,' N.S., i. 560-1, ii. 398, to the 'Athenæum' (19 July 1884), where Professor Vinogradoff, of Moscow, gives an interesting account of the discovery by him among the Additional MSS. in the British Museum (Addit. MS. 12269) of a collection of cases evidently compiled for Bracton's use, and actually used and annotated by him for the purpose of his work, and also to an article in the 'Law Quarterly Review' for April 1885, in which the same writer suggests one obvious and two unwarrantable alterations of the text, impugns the authority of Rawl. MS. c. 160, on which Sir Travers Twiss's recension is based, on the ground that it contains an irrelevant disquisition on degrees of affinity, and argues from other passages that the text as it stands is the result of the gradual incorporation with Bracton's manuscript of the glosses of successive commentaries.