I’d like to thank Dan, Karen, and Mitra for inviting me to
join them this month. I recently published my first book,
Priests
of the Law, which is about a group of justices in the English royal
courts who, I argue, sought to fashion themselves as jurists of the civil law. The
central piece of evidence for this contention is the
Bracton treatise. I’d like to use this first post to talk a bit
about
Bracton and why I think it’s such
a fascinating text.
Bracton is a
legal treatise that was written over a period of about 30 or 40 years, between
the 1220s and the 1250s, by a succession of justices working in the royal
courts.
Bracton is one of those
medieval texts that modern lawyers have often heard of. It’s cited in a Supreme Court
opinion about once a year, usually to demonstrate that some rule or principle
goes back to the very beginning of the common law, or very close to it. There
are several reasons why people still turn to
Bracton. As one of the earliest systematic treatments of the law of
the English royal courts, it became part of the common-law canon. It was
printed in 1569 and 1640. Our first professor of law at William & Mary,
George Wythe,
owned
a copy. Thomas Jefferson
waxed eloquent
about its value as “the first digest of the whole body of law, which has come
down to us entire,” which, “gives us the state of the Common law in it’s
ultimate form, and exactly at the point of division between the Common and
Statute law.”
Bracton even makes an
appearance in the case
Pierson v. Post,
a mainstay of the first-year property course.
Bracton’s accessibility doesn’t hurt: a
searchable edition and
translation is available online. I think people also cite to it because it
is a familiar type of text. We
generally refer to it as a treatise, and that’s a good enough description. It’s
a text that treats the law of the king’s courts in a methodical way. The
treatise is a genre of text we’re familiar with today and it’s a genre of text we’re
accustomed to turn to when we need answers about the law.
I think one of the problems of writing about
Bracton is its very familiarity. The
fact that the treatise is still a recognizable genre actually hampers our
ability to understand a text like
Bracton.
Its purpose seems fairly obvious to us; it is designed to explain the workings
of the king’s courts in a methodical manner. When I started reading historians
on
Bracton, I saw a lot of very good discussion
about when it was written, who wrote it, and whether it accurately represents
practice in the royal courts of the thirteenth century. These are important
questions, but I didn’t see much writing on what I thought was the really big question:
why did anyone think it was a good idea to write this book? I think scholars
have largely taken it for granted that they know what a treatise is and why
people write them. But writing a treatise about the royal courts was not a terribly obvious thing to
do in this period. The
Bracton authors
did have precedents. Jurists of Roman and canon law were writing treatises in
the thirteenth century, and
Bracton relies
on one in particular, the
Summa on the
Institutes of Azo of Bologna. At least one other text that could be described as a
treatise on the king’s courts existed, the text known as
Glanvill, written in the last decades of the twelfth century.
Glanvill was an ambitious text in its
own way, but it is a
much shorter
text than
Bracton.
Bracton is the length of roughly nine or
ten
Glanvills. Once we start to think about the
Bracton project as an oddity, a strange
choice for this group of justices to make, that opens up a lot of interesting
questions about the text. Why did these justices and clerks sit down to write
this text? One of its authors claims that he worked
“long into the night watches” writing it. The people who wrote it were justices and clerks of the
king’s courts, not exactly people with a lot of spare time on their hands, so
they must have been committed to this project. When we start to think of writing a massive treatise not as a natural choice, but as a fairly strange one, we can start to look
at
Bracton as a cultural artifact and
ask what role it played in the culture of thirteenth-century justices and
clerks.
--Tom McSweeney
