helps as could be derived from other sources to improve and augment it. The value set on this work, soon after its publication, is evinced by the treatises of Fleta and Britton. These two books, the best productions of the reign of Edward I., who was an active encourager of such undertakings for improvement of the law, are nothing more than appendages to Bracton (a). The latter was intended as an epitome of that author, and the merit of the former is confined to the single office of supplying some few articles that had been touched lightly by him, with the addition of the statutes made since he wrote. In after times he continued the great treasure of our ancient jurisprudence, where the rudiments of the law were to be traced in their first formation-where were to be seen the origin and sense of certain notions and principles, the reason of many rules of property and of practice, which had become obscure by the change of times, with the causes that led to the framing of many ancient statutes, which would be unintelligible without the help of this author. Thus was Bracton deservedly looked up to as the first source of legal knowledge, even so low down as the days of Lord Coke, who seems to have made this author his guide in all his inquiries into the foundation of our law. The author of this work is usually styled Henry de Bracton, though he has passed, as fancy or mistake may have dictated, by the names of Brycton, Britton, Briton, Breton. He is said to have lived at the latter end of the reign of Henry III. There is an internal evidence that the book was written before the fiftysecond year of this king; for it takes no notice of the writ of entry in the post, nor of the regulations about distresses, attachments, guardians in socage, and other points, made by the statute of Marlbridge; and as he quotes a case in the forty-sixth year of this king,2 it must follow that the book was written, or at least received the author's last hand, some time between that and the fifty-second year. It is probable that in matters of fact the writer relied on his own experience, or the information of those he personally knew, for he quotes no decision of a court, or opinion of a lawyer, but of this king's reign, though one of them is so early as the third year. It is said that Bracton was a judge. The clergy continued to practise in the secular courts, in the same manner as before. We find among the provincial and (a) This is an entire error, as will be manifest to the mind of any one who has read both works, which are as different as possible. The suggestion of Selden that the work called by the name of Britton is an abridgment of Bracton, has been supposed to imply that both names were names of the same person, which is not likely, as the books are so different in substance and in style (as well as in language-Bracton being in Latin, and Britton in Norman-French); and it is not possible, for Bracton died before the end of the reign of Henry III., and does not mention the later statutes of his reign, and Britton goes down to the 13th Edward I. The book of Britton, therefore, belongs to that reign, and will be there treated of; and, as our author has analysed Bracton, it may be convenient there to analyse Britton. Dis. ad. Flet. scc. 2. 2 Bract. 159. facts. legatine constitutions of this reign several injunctions to restrain them: Nec advocati sint clerici vel sacerdotes, in Miscellaneous foro seculari, nisi vel proprias causas vel miserabilium procequantur. But these, like those which forbid them accepting other secular employments, were not observed. It appears all through this reign that many dignitaries of the church were justices in the courts at Westminster, and in the eyre,2 as bishops, abbots, deans, canons, archdeacons, and the like. Notwithstanding the clergy were chosen to these stations for their learning, Bracton, speaking of some judges of his time, calls them insipientes, et minus doctos, qui cathedram judicandi ascendunt antequam leges didicerint,3 In former times there had been no particular domicile, or house, for the resort and education of practisers of the law. But it has generally been believed that very soon after the bench was fixed at Westminster, the practisers and officers of that court, as well as students of the law, began to settle in some place in London, most convenient for their studies, conference, and practice. The title of capitales justitiarius, and of justitiarius Angliæ, ceased in 52 Henry III., when the title first commenced of capitalis justitiarius ad placita coram rege tenenda.4 The salary of the justices of the bench, in the 23d year of this king, was £20 per annum; in the forty-third year, £40. In the twenty-seventh year the chief baron had 40 marks; the other barons 20 marks; and in the forty-ninth year, £40 per annum. The justices coram rege had, in 43 Henry III., £40 per annum. The chief of the bench had, in the forty-third year of this king, 100 marks per annum, and next year another chief of the same court had £100. But the chief of the court coram rege had only 100 marks per annum 5 (a). (a) It seems to be suggested here that Bracton spoke of the clerical judges, which is scarcely likely, seeing that he was one of them himself, for that he was of the clerical prefession is clear, as he is called "dilectus clericus noster" by the king, in a grant to him, dated 1254 (Dugdale's Orig. Jurid. 56). And when the whole passage is quoted, it will be seen that Bracton was not speaking of the king's judges, but of those in local courts. Having described the law as consisting in part of unwritten laws or customs, he says: Sunt autem consuetudines placis et diversiæ, secundum diversitatem locorum; sicut in diversis comitatibus civitatibus, &c., ubi semper inquirendum erit quæ sit illius loci consuetudo et qualitur ut autem consuetudinæ qui consuetudines allegant. Cum autem hujus modi leges et consuetudines per insipientes et minus doctor, &c., sequis trahuntur ad abusum: et quistant in dubiis et in opinionibus multotiens pervertuntur à majoribus qui potuis proprio, arbitrio quam legem authoritate causas decedunt." So that what he was aiming at was the mischief done by multifarious decisions of local courts, founded upon supposed local customs, rather than upon legal principle, the very evil reprobated by Lord Hale as existing in the county courts. |