The Genres of Authority

This chapter argues that the authors of Bracton treated the cases they cited in the treatise as if they were the opinions of jurists. In the process of reconstituting the courts’ records as authoritative texts, the justices transformed themselves into jurists on the Roman model. In Bracton, the plea roll entry is assimilated to genres of civilian and canonist texts that were specifically associated with jurists. One of the authors compares the cases drawn from the plea rolls to consilia and responsa, texts in which an important jurist gave his opinion on a legal matter. They took these texts, which the royal courts had already been producing for decades when Martin of Pattishall and William of Raleigh entered the courts, and read them through the lens of the texts they had encountered in the schools, connecting their work in the courts with the culture of Roman and canon law.

Thinking About Law

This chapter will demonstrate that the authors of Bracton thought of the early common law as part of the same body of knowledge as Roman and canon law. Indeed, they wanted to demonstrate that the law they administered was one local instantiation of the universal law of Latin Christendom, a local instantiation which diverged in its specifics from what they had learned in the texts of Roman and canon law, but that could still fit within the universal law’s four corners. Rather than using Roman and canon law to fill gaps in their own law or to justify changes to their law, the authors of Bracton worked hard to demonstrate that the law they applied in the king’s courts was already in perfect accord with the rules of the two laws.

Law as Text

Roman and canon law were fields of knowledge based on the interpretation of authoritative texts. In their study of Roman and canon law, the authors of Bracton would have begun to think about the practice of law as a textual practice. This was not an obvious way to think about law in the thirteenth century. In England’s county and manor courts, much of the law was contained in the collective memory of the suitors of the court, not in authoritative texts. Thus, the fact that Bracton’s authors studied Roman and canon law would have led them to think about law in a different manner from many of their colleagues in the central royal courts.

Setting the Stage

This chapter provides a synthesis of the literature on the writing of the Bracton treatise and brief biographies of the justices and clerks who wrote it. A number of scholars have written about Bracton and the process by which it was written and re-written over a period of roughly half a century. There is a great deal of scholarly debate about who wrote Bracton and when it was written. This chapter synthesizes that research into a narrative of the various stages of writing the treatise, and then attempts to connect those stages to the careers of the royal justices who we know or suspect worked on it.

A New Plea Roll for a New Audience

This chapter will examine some surviving rolls of cases heard by Henry of Bratton, who appears to have internalized the notions that plea rolls were authoritative texts and that the justices who wrote them were jurists. As a result, Bratton began to approach his own rolls differently, crafting them for a potential audience who would be interested in the legal principles his cases represented, much as modern justices of the United States Supreme Court think about law students as an audience when drafting important opinions. In his rolls and the Bracton treatise, we see Bratton trying to position himself as the obvious heir to the great justices Martin of Pattishall and William of Raleigh and as a jurist learned in Roman law.

From Classroom to Courtroom

This chapter examines another set of texts produced by the authors of Bracton, case collections, and argues that these justices were trying to transform the records of the courts into a type of legal literature. William of Raleigh and Henry of Bratton produced several collections of cases drawn from the plea rolls, one of which, known today as Bracton’s Note Book, survives. It provides a fascinating window into the ways in which these justices were transforming, through the production of certain types of texts, the mundane administrative work of the royal courts into a type of learned discourse. Raleigh and Bratton took plea roll entries out of their original context and remade them in the image of the texts they had encountered in the schools of Roman and canon law.

Conclusion

The culture of textual production that these justices tried to create did not survive the thirteenth century. In the second half of the century, English legal literature became more insular in its outlook. But Bracton and the plea roll collections represent an important moment in the history of the common law, when people were reflecting on what law is and how it should be practiced. Through Bracton we can catch a glimpse of people who were thinking about what it meant to administer the law of the king’s courts, in a time before the common law was the common law. In these texts, we see the justices of the royal courts turning to Roman and canon law for inspiration.

Cases and the Dialectic

Bracton contains more than 500 citations to cases on the plea rolls, the administrative records of the royal courts, and this chapter will demonstrate that the authors of Bracton thought of them as authoritative texts, similar to the authoritative texts of Roman and canon law they had learned from in the schools. The authors of Bracton use and treat citations to plea roll entries and citations to the authoritative texts of Roman law—Justinian’s Digest, Codex, and Institutes—in very similar ways. The authors of the treatise adopt similar citation methods for both, and speak about them in similar terms. The authors of Bracton applied to their case records the scholastic methods of harmonization and reconciliation that they had learned to apply to the authoritative texts of Roman and canon law.

Introduction

A central question in the early history of the common law is how much influence Roman and canon law exerted over the common law in its first century. The debates over Roman- and canon-law influence have largely stalled, however. This chapter introduces a new way forward in those debates. Most scholars who have looked for Roman- and canon-law influence on the common law have looked for similarities in particular rules and have argued that common lawyers adopted those rules from Roman or canon law. Priests of the Law argues that we are more likely to find borrowings in the context of more fundamental questions. The early thirteenth century was a time before the common law was the common law. There was debate over its nature and who should control it. In their attempts to answer these questions, the authors of Bracton turned to Roman and canon law.