CONTRIBUTIONS TO GLANVILLE & BRACTON
A. RANULF DE GLANVILL
Glanville was one of those multi-sided statesmen and soldiers, and lawyers who served Henry II’s court. He also founded the Common Law. He was one the most prominent leaders of the English Army during the reign of Henry II. He served the King as Justice in Eyre, an ambassador, and Justiciar. He was the King’s legal advisor, and he helped implement some important legal reforms for Henry II. He was elected Chief Justice of England, Prime Minister (we might say), and Viceroy in 1180. Glanville, who was sick at Acre in 1190’s early autumn, died from an illness. He went on the Crusade with Richard I. Glanville is a well-known learned author of the classic of the twelfth century. Glanville completed his famous ‘Treatise’ between 1187-and 1189. Maitland suggests that the book might have been written by Glanville’s nephew and secretary, Hubert Walter. We know Walter to be a lawyer and to have had a great influence on his master. The treatise was completed with Glanville’s permission and under his supervision. Glanville emphasized in his treatise that the earliest branches of Common Law were the Law of Procedure and Criminal Law.
- The Law of Procedure reveals a prominent and important feature of the Common Law: its dependence on writs. There was no set number of causes of action, and the King could issue as many writs as he liked. Because precedents didn’t bind the King’s Court, he administered Equity and Law.
- The Criminal Law has the new criminal procedure based upon a grand jury presentation and trial by petit juries, and it was created alongside the older appeal-based procedure.
- We can see in Land Law that the principle holds that all land was either held immediately or from the Crown.
Two elements can be seen in the Glanville’s Treatise law:
- The court makes these rules and records on the plea rolls.
- The Roman, Civil, and Canon Laws have an influence.
B. HENRY OF BRACTON
Henry of Bratton (also known as Bracton) was born in Bratton, Devonshire. He was an ecclesiastic. Bracton recognized William of Raleigh, Martin of Pateshull, and Martin of Pateshull as his law masters. He was a Judge in Eyre in 1245. He probably sympathized with the Baronial party. He was one of the twelve members of a commission that adjudicated the claims of Simon de Montfort’s distinguished supporters. He died in 1268 while serving as the Chancellor of Exeter Cathedral.
CONTRIBUTIONS TO BRACTON
His major work is an English Law treatise, which has no rival in terms of literary style and completeness of treatment until Blackstone’s commentaries five centuries later. He compiled a “Note Book” to record 2,000 cases taken from the Plea Rolls during the first twenty-four years of Henry III’s reign. Vinogradoff suggested in 1884 that this case collection was a Note Book’ Bracton used to compile his treatise. Maitland agrees. These two works were completed at the end of a period of rapid growth. The Treatise on Laws of England remains unfinished. It ends in the middle of the discussion on the writ, and it is obvious that Bracton contributed to the book but never revised it. The book was probably written around 1240, according to internal evidence. Although the number of MSS “Extant” proves its popularity, we don’t have Bracton’s autograph. The introduction is heavily influenced by Roman law. It contains the Roman division of the law of persons and things into actions. Bracton realized that English law could not be grouped under these headings, so the main body is split into tracts that deal with the most significant actions (civil and criminal), which were presented to the King’s Court. Bracton’s book has two characteristics:
It depends on the decisions of cases as well as writs. Bracton will support a case whenever possible and criticizes decisions he doesn’t like.
This makes “Treatise” interesting historically. This gives us an idea of English Law as it was developed by judges who were more than just lawyers. We will attempt to provide an account of English Law using Bracton’s work. II--Bracton Law and Roman Law. III--Influence on English Law History of Bracton
BRACTON & ENGLISH LAW
(A) PROCEDURE FORMS AND ACTION
Bracton’s time saw an increase in the number of forms of action and writs. Bracton discovered a third class, which he called “Magistralia.” This power to issue ‘Brevia Magistralia” was the catalyst for the rapid growth of law in this period. Rules of procedure were made flexible to allow for proper conduct before the court.
(B) CONSTITUTIONAL LAW
Bracton believes that the law is supreme and should be followed by all, i.e., King and subject alike. What would happen if the King didn’t follow the law? In a passage not found anywhere in MSS but in ‘Fleta (1290), written during Edward I’s reign, Bracton states that “the Courts & Barons are King’s masters, and must restrain him if the law is broken.”
(C) THE PLAAS OF THE CROWN (CRIMINAL LAW).
The decay of the appeal of crimes is a sign that a new criminal law is being developed. Bracton explains that a civil appeal should not be used for minor injuries. The King’s Court continues its expansion of jurisdiction to more serious crimes. Bracton’s treatment for homicide, influenced by Bernard of Pavia, a Canon Lawyer, shows that law is starting to give more importance to men’s rea. Bracton considered the Deodand unreasonable.
(D) LAND LAW
It is a significant step forward. The real action is also helping to settle the various rights that a freeholder might have on the land.
(E) PERSONAL STATUS
We still have people in the time of Bracton whose status was not free--people who can be compared to ‘Servi” of Roman law.
(F) PERSONAL PROPERTY
The common law does not have a theory about the contract. Local courts in each county dealt with disputes on questions of tort and contract, although the law they used was still rudimentary.
BRACTON & ROMAN LAW
Bracton borrowed Roman law from Rome to fill obvious gaps in the emerging Common Law. There have been many estimates of Bracton’s Roman law debt. Maine believed that Roman law had borrowed the entire form and one-third of the contents of the treatise. On the other hand, Reeve believed that even though terms and maxims were taken from Roman law, the actual doctrines would not take up more than three pages. Maitland believed that Roman law significantly influenced certain sections of the first 107 pages. Maitland agrees with Reeve’s modified view. Holdsworth believes that “Bracton has a greater debt to Roman Law than Maitland believed.” Bracton’s treatise contains many of the terms and phrases and some of the Doctrines of Roman Law. The Roman Civil Law, which was being translated by the Glossatores and the Canon Law, inspired him. Azo, the most prominent lawyer at the school of Bologne, gave him his Civil Law. As we have seen, he was heavily influenced by Bernard of Pavia in his treatment of Criminal Law. If the King’s Court in England had been staffed by men such as Bracton, who were trained in Civil and Canon Laws, Roman law would have played a large role in shaping the customs of the King’s Court and the English Common Law. We will see that this influence was not as strong in Roman law since the King’s Court Judges were no longer men who had been trained in Civil and Canon Law.
INFLUENCE OF BRACTON UPON HISTORY OF ENGLISH LAW
Bracton’s treatise was the first textbook to cover English laws. Bracton, and Bracton alone, are the ones we should look to for an account of this period in vigorous growth of Common Law. His influence was immense after Bracton’s passing. It declined somewhat in the 14th and fifteenth centuries. English lawyers were no longer practicing. The Common Law appeared to be losing its grasp on principles and becoming “an evasive comment upon statutes and writs.” The large outlook, literary style, and common sense Bracton displayed to these lawyers were strange. Therefore, we are not surprised that some lawyers in the 15th century denied Bracton’s book any authority. Very basic knowledge of English Law history is enough to prove the absurdity or absurdity of such statements. Fitz Herbert was familiar with Bracton’s “Note Book” in the 16th century. In his Grand Abridgement, he cites several cases. Fitz Herbert revealed to Coke cases he had taken from the ‘Notebook.’ Coke also draws heavily from Bracton’s Treatise. Coke benefited greatly from the Treatise of Bracton in liberalizing Common Law. The Common Law won and took over the Star Chamber and Admiralty jurisdictions. Judges continued to use Bracton’s Treatise.