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Bratton [Bracton], Henry oflocked

(d. 1268)
  • Paul Brand

Bratton [Bracton], Henry of (d. 1268), justice and supposed author of the legal treatise known as Bracton, was probably born at Bratton Fleming near Barnstaple in Devon. Neither his parentage nor the date of his birth is known.

Bratton as clerk and justice

Bratton's first appearance in surviving records is in March 1238, when his agreement with Stephen Fleming was enrolled on the plea roll of the court of coram rege. This indicates that he had by then become a clerk of William of Raleigh (d. 1250), the court's only professional justice. William of Raleigh had been presented to the rectory of Bratton Fleming by King John in 1212. Bratton's recruitment into Raleigh's service must be connected with Raleigh's possession of the rectory of Bratton's home village. Bratton had probably been in Raleigh's service for some years before 1238, though for just how long is uncertain. Soon after Raleigh left the court on being elected bishop of Norwich in 1239, Bratton was taken into the king's service and put on an annual retainer of 40 marks a year (in February 1240). This has been taken to indicate that he was by then a senior clerk with a long period of service to Raleigh. All that is certain, however, is that he was by then sufficiently senior to have been entrusted with the custody of Raleigh's plea rolls and also those of the justice whom Raleigh had himself served as clerk, Martin of Pattishall (d. 1229). He was ordered to surrender them to the exchequer in 1258 and can be shown to have been in possession of them in 1247. He had probably been in continuous possession of them ever since 1239.

Bratton received only the first year's payment of his retainer, perhaps because he sided with Raleigh in a dispute with the king over Raleigh's election in 1240 to the see of Winchester. He then disappears from view until 1245. By then he had become rector of the Lincolnshire church of Gosberton and received, thanks to Raleigh, a papal dispensation to hold two additional benefices with cure of souls. It was also in 1245 that Bratton received his first judicial appointment, sitting as a junior justice on the eyres of Lincolnshire and Nottinghamshire. Although he was also appointed to act as justice of the Yorkshire eyre and of eyres in four other northern counties the following year, the final concords indicate that he did not act. Bratton's next judicial appointment was as a junior justice of the court where he had previously served as a clerk, the court of coram rege. He probably became a justice of the court in October 1247 and served initially until June 1251. By February 1249 he had also become a canon of Wells Cathedral, holding the prebend of Whitchurch in Binegar: just the kind of preferment that came the way of successful clerics in royal service. He was reappointed to the court of coram rege in July 1253 and served there until late June 1257. Between 1251 and 1258 he authorized (generally with others) a number of mandates enrolled on the close rolls, and some of the authorizations identify him as a member of the king's council. They include a mandate to the justices of the common bench in 1256, on the computation of the year and a day allowed to men essoined of bed-sickness in leap years, and another mandate of the same year which suggests the existence of legislation requiring seignorial assent for alienations in mortmain. He was probably involved in drafting some, if not all, of these mandates.

Between 1257 and his death in 1268 Bratton's main judicial activity was as an assize justice in the south-west of England. Although appointed to hold sessions of the special eyre for the remedying of local grievances in Gloucestershire, Worcestershire, and Herefordshire late in 1259, it seems unlikely that he ever acted. The close roll also has a memorandum belonging to February 1267 noting that he and others had been appointed to hear the complaints of the disinherited, but again it seems unlikely that he acted. During the same period Bratton was presented to two Devon rectories (Combeinteignhead and Bideford), was briefly (in 1264) archdeacon of Barnstaple, and then held the chancellorship of Exeter Cathedral from 1264 until his death. By 1262 he also held a prebend in the bishop of Exeter's Sussex collegiate church of Bosham. Bratton died, unmarried, in 1268, probably in the autumn (possibly on 30 October). He was buried in the nave of Exeter Cathedral where his executors established a chantry in his memory. A chantry was also established for him at Wells.

The treatise known as Bracton

Henry of Bratton was long thought to have been the author of the legal treatise known as Bracton. As may be deduced from its more formal alternative title De legibus et consuetudinibus Angliae, it is the most ambitious English legal work of the middle ages, apparently conceived on a grand scale as an overall survey and discussion of the whole of the common law as it was being applied in the king's courts in England, with supporting citations of actual decided cases, and the reproduction of writ and enrolment formulas currently in use. The extant treatise is evidently only part of the work as originally envisaged, but even so the work is around ten times the length of the only previous English legal treatise, Glanvill. The main topics covered are the acquisition and transmission of property rights, criminal law, and the working of the different kinds of real action for the recovery or assertion of rights over land and other forms of real property. Most manuscripts divide up the work into four or five books, but this division is an artificial one and the basic unit of composition appears to be the ‘title’. Each ‘title’ is in turn composed of a number of independent paragraphs. Bracton is clearly the work of an author with a knowledge of Roman and canon law as well as English common law, though there has been a long debate among legal historians about how expert the author really was in the 'learned law'. It is clear that the author did make use of Roman law to fill gaps in his English materials. He also drew on Roman law for some of the more abstract organizing principles of the treatise. Despite the size of the book it survives in about fifty different manuscripts, most of them written during the last two decades of the thirteenth century or the first half of the fourteenth century.

The problem of authorship

The ascription of the treatise to Henry of Bratton can be traced back to within a few years of his death. The first folio of one of the earliest surviving manuscripts of Bracton has an inscription recording that this is 'beginning of the book of lord H. de Bratton' and early in 1278 Robert of Scarborough acknowledged having received a loan of 'the book which lord Henry of Bratton composed', evidently a copy of the treatise. When the book found its way into print in 1569, the unknown editor (T. N.) not only ascribed authorship of the treatise to Bratton, but also adopted a reading of one passage near the beginning of the treatise (found only in a minority of surviving manuscripts) in which the authorial 'I' was extended to 'I Henry of Bratton'. The same anonymous editor also transformed Bratton's surname into ‘Bracton’, the name by which both justice and book have generally been known since. Bratton's authorship of the treatise went unchallenged both by his late nineteenth-century editor, Sir Travers Twiss, whose six-volume edition, published in the Rolls Series, appeared between 1878 and 1883, and by George Woodbine, whose four-volume edition appeared between 1915 and 1942. Woodbine did not believe that everything found in the various manuscripts of Bracton (especially in their margins) was necessarily from the pen of Bratton, and went to some pains to distinguish those addiciones he regarded as from the pen of Henry of Bratton from those which could not be ‘Bractonian’. Other twentieth-century scholars (H. Kantorowicz, T. F. T. Plucknett, and H. G. Richardson) conducted a long debate about how far the muddled state of the text of Bracton as it now exists was the responsibility of Bratton and how far the responsibility of one or more redactors working before or after his death. The most recent editor of the text, S. E. Thorne, when his edition began to appear in 1968, showed no signs of doubt about Bratton's authorship. It was only when the final two volumes of his new edition appeared in 1977 that Thorne challenged the long consensus by arguing that Bratton was only the reviser of a work originally composed by someone else. Thorne's view is now generally, though not universally, accepted by scholars, though some of his arguments have needed to be revised in detail in the light of subsequent criticism.

The main argument against Bratton's authorship of major parts of the treatise relates to the date when those parts were written. Although it had long been known that the treatise cites mainly cases of the 1220s and early 1230s the general consensus before 1977 was that it had been written during the 1250s and that the author had deliberately chosen cases of an earlier period as an authoritative source for the doctrine of the treatise. It now seems clear that parts of the text must have been written earlier than the enactment of the provisions of Merton of 1236, as several passages relating to changes made by that legislation are clearly additions to a text originally complete without them. Other parts of the text giving writ forms can be shown to have been written before 1237, for the writs have limitation date formulas which were in use before that year, or are most readily explicable as crudely and inaccurately altered versions of such formulas. Material added to the section on replevin relating to the action of recaption, and to the section on the assize utrum relating to its use by laymen as well as clerics, likewise suggests original composition of both of those sections earlier than c.1240. Other evidence pointing to a date no later than the early 1230s for parts of the treatise is the inclusion of a form of judicial commission apparently last used in 1226 and of a special set of articles of the eyre used at the Shipway session of the Kent eyre of 1227; references to the use of the essoin of the general summons at the eyre (no longer in use after 1234); and to the action of warranty of charter as a way for tenants to stop distraint for services not specified in their charters (not found after the mid-1230s). Bratton is not a plausible candidate for a treatise of which much had already been written by the mid-1230s, for he can hardly by then have acquired the requisite degree of legal expertise. A much more plausible candidate is the William of Raleigh whom Bratton served as clerk, and who had been the clerk of Martin of Pattishall before Pattishall's retirement in 1229. His authorship best explains the author's knowledge of what Pattishall said and did in court, and his occasional use of the great justice's first name.

Bratton and Bracton

The manuscript of the treatise evidently passed to Bratton. Raleigh may have hoped that Bratton would keep the treatise up to date and make the necessary revisions that would allow it to pass into wider circulation. Bratton certainly did make some revisions. He may well (as Thorne suggested) have been responsible for adding material connected with William of Raleigh's period as senior justice of the court of coram rege. He may also have been responsible for other revisions that produced two opposing and unreconciled viewpoints in the text of the treatise. Bratton is also the most likely reviser of a passage that deals with errors in the names included in writs. His first name and surname are used to illustrate errors in syllables ('Henricus de Brothtona' for 'Henricus de Brattona' and letters ('Henricus de Brettona' for 'Henricus de Brattona'). His too is the name used to illustrate an error in the dignity held by the plaintiff ('Henry de Bratton precentor' for 'Henry de Bratton dean'). It was also presumably Bratton who was responsible for the second preface added to the treatise, which talks of greater men who are 'foolish and insufficiently instructed, who climb the seat of judgment before learning the laws', and of how they pervert laws and customs by deciding cases more by their own will than by the authority of the laws, and of the compiler writing for 'the instruction at least of lesser men' and going back to the 'ancient judgments of just men [‘vetera judicia justorum’], searching through … their deeds, their consilia and responsa' (De legibus et consuetudinibus Angliae, 2.19). This was clearly Bratton's apologia for not updating the treatise: it had hardly been necessary when the treatise was originally written, for then the cases cited were much more nearly contemporary. It was certainly Bratton who was responsible for the incorporation of references to cases which he had himself determined or which involved him of various dates between the mid-1240s and the mid-1250s.

After the mid-1250s Bratton seems largely to have abandoned work on the treatise. It does not include any references to the changes made by the provisions of Westminster of 1259. Nor did he alter those passages in the treatise that dealt with seignorial attempts to control mortmain alienations, or the computation of the year and a day allowed to tenants who essoined themselves of bed-sickness, in the light of the mandates of 1256 relating to both these subjects with whose issue he was closely involved. Given the amount of effort that had been invested in the treatise, its apparent abandonment by its author more than a decade before his death, and at a time when he certainly remained active, has always seemed puzzling. It becomes much less puzzling if it was not the author, but a reviser, who was giving up the unequal struggle to try and keep (or rather bring) the treatise up to date. The treatise does not seem to have gone into general circulation until after Bratton's death, and it may well be the fact that it was found among his possessions at his death that explains why the treatise came so soon to be ascribed to him.

‘Bracton's Note Book’

In 1884 Paul Vinogradoff discovered a manuscript in the British Museum containing about two thousand transcripts of enrolments taken from the plea rolls of the courts over which Martin of Pattishall and William of Raleigh presided as justices during the period from 1217 to 1239–40. Noting the coincidence between these enrolments and the cases cited in Bracton, Vinogradoff suggested that the manuscript was 'drawn up for Bracton and annotated by him or under his direction' (Bracton's Note Book, 1.xviii). F. W. Maitland gave the collection the name Bracton's Note Book when he published it in 1887. He saw it as an essential working tool for the author of Bracton, evidence of how he had set to work by first selecting material from rolls belonging to Pattishall and Raleigh and then having it copied into his notebook. Maitland saw that there was one major difficulty with this hypothesis. Of the five hundred or so cases cited in the treatise, only about two hundred are actually to be found in the notebook. His answer was to conjecture that it was the sole survivor of what had originally been two or more such notebooks. The connection between treatise and notebook was generally accepted until 1977. It was again Thorne who cast doubt on the supposed relationship. Bratton had certainly possessed the notebook and been responsible for at least part of its contents. But major parts of the notebook were first copied from the rolls and annotated by or under the direction of others, and it was doubtful whether the notebook was in fact used, or could have been used, in the composition of the treatise. Some connection with the treatise none the less remains a possibility. Even if not used in composing the treatise, it may still have been intended for use in revising it, or even as a companion to it for those without ready access to the rolls containing the cases cited in the treatise.

Sources

  • P. Brand, ‘The age of Bracton’, PBA, 89 (1996), 65–89
  • H. de Bracton, On the laws and customs of England, ed. G. E. Woodbine, trans. S. E. Thorne, 4 vols. (1968–77)
  • Bracton's note book, ed. F. W. Maitland, 3 vols. (1887)
  • J. L. Barton, ‘The mystery of Bracton’, Journal of Legal History, 14 (1993), 1–42
  • C. A. F. Meekings, Studies in 13th century justice and administration (1981)
  • TNA: PRO, court of king's bench, curia regis rolls, KB 26/168 m 24d

Archives

  • BL, Add. MS 12269
  • Middle Temple, London, papers
Proceedings of the British Academy
National Archives of the United Kingdom, Public Record Office, London