Page:Dictionary of National Biography volume 06.djvu/158

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Bracton
146
Bracton

extensive knowledge of the Roman law which he undoubtedly did possess without residing in Oxford, and neither the title 'dominus' by which he is usually designated in ecclesiastical records, and which, as Sir Travers Twiss has pointed out, was the proper appellation of a professor of law at the university of Bologna under the privilege accorded by Frederic I at the diet of Roncaglia (1158), nor that of 'magister' given him by Gilbert Thornton (chief justice), who epitomised his work in 1292, can be relied on as necessarily importing an academical status. The date of the composition of his work is approximately fixed by a reference to the Statute of Merton (1235) on the one hand, and the absence of any notice of the changes in the law introduced by the Provisions of Westminster (1259) on the other. The work seems never to have received a final revision, and it is probable that the order of arrangement of the several treatises does not in all cases correspond with the order of composition. Bracton's relation to the civil and canon law has been ably discussed by Professor Güterbock of Königsberg, who agrees in the main with the view taken by Spence, that he did not so much romanise English law as systematise the results which a series of clerical judges, themselves familiar with the civil and canon codes, and using them to supplement the inadequacy of the common law, had already produced, a conclusion which is in accordance with the strictly practical purpose apparent throughout the treatise. This view is also adopted by Sir Travers Twiss. Bracton's position in the history of English law is unique. The treatise 'De Legibus et Consuetudinibus Angliæ' is the first attempt to treat the whole extent of the law in a manner at once systematic and practical. The subject-matter of the work is defined in the proem to be 'facta et casus, qui quotidie emergunt et eveniunt in regno Angliæ,' and to this he for the most part strictly limits himself, citing cases in support of the principles he enunciates in the most exemplary manner. Hence the influence of the work was both immediate and enduring. Besides the abridgment by Thornton, of which, though none is now known to exist, Selden had an imperfect copy, two other summaries of it were compiled during the reign of Edward I by two anonymous authors, one in Latin, of which the title 'Fleta' is thought to conceal some reference either to the Fleet Prison or to Fleet Street, the other in Norman-French known as Britton. Through Coke, who had a high respect for Bracton, and frequently cited him, both in his judgments and in his 'Commentary' on Littleton, his influence has been effective in moulding the existing common law of England. Some remarkable passages relating to the prerogative of the king (i. cap. viii. § 5, fol. 5; ii. cap. xvi. § 3, fol. 34; iii. tract i. cap. ix. fol. 107 b} were cited by Bradshaw in his judgment on Charles I, and by Milton in his 'Defence of the People of England,' as showing that the doctrine of passive obedience was repugnant to the ancient common law of this country. The bibliography of Bracton may be put into very small compass. A considerable portion of the treatise found its way into print in 1557, in the shape of quotations made by Sir William Staundeford in his 'Plees del Coron.' The first printed edition of the entire work was published by Richard Tottell in 1569 (fol.), with a preface by one T. N. (whose identity has never been determined), in which credit is taken for a careful recension of the text. The next edition (4to) appeared in 1640, being a mere reprint of that of 1569. In spite of the labours of T. N. the text remained in so unsatisfactory a condition that Selden never cited it without collation with manuscripts in his own possession. No other edition appeared until 1878, when Sir Travers Twiss issued the first volume of the recension and translation undertaken by him by the direction of the master of the rolls. The sixth and last volume appeared in 1883. For information concerning the apparatus criticus available for the establishment of the text reference may be made to vol. i. pp. xlix-lxvi of this edition, to the 'Law Magazine and Review,' N.S., i. 560-1, ii. 398, to the 'Athenæum' (19 July 1884), where Professor Vinogradoff, of Moscow, gives an interesting account of the discovery by him among the Additional MSS. in the British Museum (Addit. MS. 12269) of a collection of cases evidently compiled for Bracton's use, and actually used and annotated by him for the purpose of his work, and also to an article in the 'Law Quarterly Review' for April 1885, in which the same writer suggests one obvious and two unwarrantable alterations of the text, impugns the authority of Rawl. MS. c. 160, on which Sir Travers Twiss's recension is based, on the ground that it contains an irrelevant disquisition on degrees of affinity, and argues from other passages that the text as it stands is the result of the gradual incorporation with Bracton's manuscript of the glosses of successive commentaries.

[Lysons's Devonshire, ii. 66, 67; Domesday Book, fol. 96, 101 b, 105 b, 107; Collinson's Somersetshire, ii. 31; Excerpta e Rot. Fin. ii. 82; Britton (ed. Nichols), i. xxiii-xxv; Valor. Eccl. ii. 294, 297; Madox's Hist. Exch. ii. 257;