The History of English Law before the Time of Edward I. Frederic William Maitland

kingly justice which may seem to be at variance with feudal rules.¹³⁶ But still this principle is at work: it is the king’s business to provide a competent remedy for every wrong.¹³⁷

The judges.The number of the justices whom Henry kept in his pay was never large. If there were some three or four in his train to hold the pleas coram rege, some four or five at “the bench,” and three or four barons in the exchequer, this was enough. During the last years of the reign “the bench” seems to have but three, or even but two, occupants.¹³⁸ These judges are very truly the king’s servants; he can move them about as seems best to him or dismiss them at a moment’s notice. By slow degrees the work of hearing and deciding [p.183] causes is being disengaged from governmental business. The office of a chief justiciar who is both the king’s prime minister and the president of the highest law court became extinct. Even Hubert de Burgh had hardly filled the place of Lucy and Glanvill, of Hubert Walter and Geoffrey Fitz Peter, for he seldom sat on the bench. For a short while after his fall in 1232 the justiciarship was committed to a lawyer, to Stephen Segrave; but from 1234, when Segrave was disgraced and dismissed, until 1258, when the time of revolution was at hand, the justiciarship was in abeyance. The title was then revived and borne for a season by Hugh Bigot, Hugh le Despenser and Philip Basset, whose names represent the alternating fortunes of contending factions. At last in 1268 Robert de Brus, the future “competitor” for the crown of Scotland, was appointed “chief justiciar to hold pleas before the king”; and the words thus added to the old title signified that only for judicial purposes was he to be chief justiciar.¹³⁹ With him began the new line of the chief justices of England who are but the presidents of a law court, and about the same time the presiding judge at “the bench” or “the common bench” began to be formally styled its chief justice.¹⁴⁰ It was no long er expected of the judge that he should be a statesman, or of the statesman that he should be expert in the law. We hear indeed complaints that the king puts unworthy and ignorant men upon the bench, men who will do just what he wants; but some of the judges of Henry’s reign were known to their contemporaries merely as great lawyers and seem to have earned the respect of all parties in the state.¹⁴¹

Clerical justices.Many of them were ecclesiastics; among such we may reckon Martin Pateshull, William Raleigh, Robert Lexington, William of York, Henry of Bratton. Even Stephen Segrave seems to have had enough of the clerk about him to serve as a shield against temporal justice.¹⁴² Bishops no longer steadily sat in the law courts, though [p.184] they might now and again appear as justices in eyre; but canonries, deaneries and even bishoprics were still to be earned by good service on the bench; William Raleigh thus won the see of Norwich and William of York the see of Salisbury. However, all this was becoming somewhat scandalous; the clergy were being forbidden by the law of the church to study temporal law or decide temporal causes.¹⁴³ Before the end of the reign the lay element among the king’s judges is beginning to outweigh the ecclesiastical; Thomas Multon and Roger Thurkelby are laymen who make names for themselves as learned justices;¹⁴⁴ but even of Edward I.’s justices not a few were clerks. This is no small change; it means that the study of English law is falling apart from all other studies. Just at the same time a class of advocates who practised in the king’s courts was forming itself. Some of Edward’s judges had practised at the bar of his courts; his father’s judges seem for the more part to have worked their way upwards as clerks in the courts, in the exchequer, in the chancery.¹⁴⁵ The change brought good with it and evil. Our judges became a little less dependent on the king than they had been; our law was protected against Romanism and our constitution [p.185] against the monarchical doctrines that Romanism might have brought with it. On the other hand, law was divorced from literature; the age for law reports, for Year Books, had come; the age for a great exposition of English law had gone by. Happily in the fulness of the time the work had been done.

Bracton.Bracton’s book is the crown and flower of English medieval jurisprudence. What we know of its author has been written elsewhere, and may here be summed up very briefly.¹⁴⁶ His name was Henry of Bratton; he was a Devonshire man, and in all likelihood he began his career as William Raleigh’s clerk. In 1245 he was already a justice in eyre and was holding a dispensation granted by Raleigh and confirmed by Innocent IV. for the tenure of three benefices. From 1248 until his death in 1268 he steadily took assizes in the south-western counties. From 1248 to 1257 or thereabouts he was among the justices who held pleas coram ipso rege: in other words, he was a justice of the nascent court of King’s Bench, and the very highest places in church and state must have seemed to be open to him. We may see him witnessing the king’s charters along with the great folk of the realm. Shortly after this, however, he appears to have retired or been dismissed from his position in the central court, though to his dying day he acted as a justice of assize. In 1259 he became rector of the Devonshire parish of Combe-in-Teignhead, in 1261 rector of Bideford, in 1264 archdeacon of Barnstaple, and in the same year chancellor of Exeter cathedral. Thus he seems to have left the king’s court just at the time when the revolutionary movement that preceded the barons’ war came to its first crisis; and just about the same time he was told to restore to the treasury the large store of plea rolls, those of Martin Pateshull and William Raleigh, which had been in his possession. Whether he was disgraced, and, if so, whether he had offended the king or the barons, we cannot as yet decide. In the last year of his life, in 1267, he appeared once more in a prominent place; he was a member of a commission of prelates, magnates and justices appointed to hear the complaints of “the disinherited”: that is, of those who had sided with Simon de Montfort.

His book.His is an unfinished book; we do not know that it was published in his lifetime. The main part of it seems to have been written between 1250 and 1258, the time when he had to surrender the plea rolls; apparently he was still glossing and annotating it at a later time; but at present we cannot always distinguish his own addiciones from those of later commentators. A “note book” has come [p.186] down to us which seems to have been his. It contains some two thousand cases copied from the rolls of Pateshull and Raleigh, over against some of which marginal notes have been written; to all appearance they came from Bracton’s hand or from Bracton’s head.¹⁴⁷

Character of Bracton’s work.Romanesque in form, English in substance—this perhaps is the best brief phrase that we can find for the outcome of his labours; but yet it is not very good.¹⁴⁸ He had at his command and had diligently studied the works of the famous Italian lawyer,Italian form. Azo of Bologna; he also made some use at first hand of various parts of the Corpus Iuris Civilis, of the Decretum, and of the Decretals, and he levied contributions from the canonist Tancred. His general idea of a law book, of the method by which law should be expounded and legal principles harmonized, has been derived from these sources. He has borrowed from them large maxims, such as might well be conceived as parts of universal and “natural” law; he has borrowed some more specific rules, for the more part such as deal with matters of rare occurrence in England; he is guilty of a few classical pedantries and sometimes uses foreign terms instead of those that were current in the courts. It is highly probable that if many of his fellows on the bench had shared his bent, the romano-canonical jurisprudence would have become a “subsidiary law” in England: that is, a law to be adduced when enacted law and customary law had no clear answer for a question; but we cannot treat his book as a proof that such was the case in his own day.¹⁴⁹ We do not know [p.187] that any of his fellows had more than that superficial acquaintance with the law of the church which was common among ecclesiastics: they might be archdeacons, they might hope to be bishops, but the judicial functions of bishops and archdeacons were by this time commonly delegated to their professionally learned “officials.” But further, his own knowledge of Roman law was by no means very deep when judged by the standard of his time, and we have