Henry de Bracton

At that time Bracton was ordered to restore to the Treasury the large store of plea rolls (case records from previous trials) that had been in his possession.

The practical result was that his major work, De legibus et consuetudinibus Angliæ ("The Laws and Customs of England"), was left unfinished.

In the last year of his life he filled another prominent role, as member of a commission of prelates, magnates and justices appointed to hear the complaints of the "disinherited" – those who had sided with Simon de Montfort, 6th Earl of Leicester.

He had established a chantry (a continuous set of prayers in perpetuity) for his soul that was endowed from the revenues of the Manor of Thorverton.

[5][6] Bracton chose the words of Ulpian (Pandects 1.1.1) to describe the legal profession: "Ius dicitur ars boni et aequi, cuius merito quis nos sacerdotes appellat: iusticiam namque colimus et sacra iura ministramus."

His capacity for hard work was such that a brother justice asked Hubert de Burgh to excuse him from going on circuit with Pateshull on the ground that he wore out his colleagues by his incessant activity.

Henry Maine regarded Bracton as a complete fraud, who tried to pass off sheer Romanism as legitimate English law.

[11] Frederic William Maitland held the opposite view, positing that Bracton had no real knowledge of Roman law and the portion that he proclaimed was incomplete and shallow.

The Lombard Libri Feudorum and the French Beaumanoir reduced to some sort of order the customary feudal law of Europe.

[16][17][18] It is a collection that purportedly recorded the laws and customs current in the time of Edward the Confessor at the behest of his successor, William the Conqueror.

He was familiar with Corpus Iuris Civilis (Body of [Latin] Civil Law), the Decretum and the Decretals, as well as the works of the canonist Tancred of Bologna.

Certain Latin terms, such as "corpus et animus" (body and soul) being necessary for possession under the law, are seen in Bracton that would appear to be ecclesiastical in origin.

The modern edition of Bracton's work was published in 1968 by the Selden Society in translation by Samuel E. Thorne from a recompilation by George E. Woodbine.

Bracton gave samples of writs that could be used in the case of a recalcitrant bishop who refused to produce a witness for the common law or king's court.

During and after the Fourth Lateran Council, Innocent III proclaimed that all tithes to the Church should take precedence over any taxes imposed by a state, which was controversial.

Bracton, being both a lawyer and a cleric, wrote of the Pope in spiritualibus super omnibus habet ordinariam jurisdictionem ("In spiritual things he has an ordinary jurisdiction over all men in his realm").

Henry won, and from that time onward, the royal court was always at the ready to prohibit ecclesiastical judges from entertaining a breach of faith unless both parties were clerks (church clerics) or the matter lay outside the realm of the temporal.

[39] A glance of the plea rolls demonstrates them to be covered with writs of prohibitions directed at ecclesiastical judges in a continuous battle over jurisdiction of Church lands.

[40][41] Despite those problems, Pollock and Maitland comment that by the end of the reign of Henry III of England, the royal and church courts functioned in relative harmony, despite certain disputes over jurisdiction.

[44] A Borough Customs proclaimed that a defendant must swear an oath that he had done nothing to a slain person that had put him "nearer to death than from life.

[44] Judge Brian wrote in 1466 (200 years after Bracton): "In my opinion, if a man does a thing he is bound in such a manner that by his deed no injury or damage is inflicted on others.

Under Henry I of England, "The man whose conduct has only remotely caused death or injury is liable, it is true, but 'in hiis et similibus, ubi homo aliud intendit et aliud evenit, ubi opus accusatur non-voluntas, venialem pocius emendacionem, et honrificenciam judices statuant, sicut acciderit'".

[49] Under Henry I of England, "who sins unwittingly shall knowingly make amends" though the lunatic and infant were not liable in criminal acts, which was a change from Anglo-Saxon law.

Then, the reeve would knock on the door of the church and demand that the criminal surrender himself or take the shortest road to a seaport and leave England never to return.

If he fled away and could not be arrested they would pay on his behalf sixty-six marks, to be collected in the village where he was slain, because the inhabitants did not produce the slayer.

[57] That represents a curious anachronism since trial by ordeal ("water and iron") had been outlawed in England by the Fourth Lateran Council of 1215.

A few great nobles, encouraged by Pope Honorius III (1216–1227) spared the nation the turmoil that would have been expected when a child becomes king.

In Bracton's time a state was defined by a king, based on the rule of law, which ultimately must end in and lead to the will of God.

[65] Sir Thomas Smith, the Secretary of State for Queen Elizabeth, wrote De Republica Anglorum in the 1560s; it was published posthumously in 1583.

In it he set forth the truly fearful powers of the Crown and Parliament, which can make and unmake law, change rights and possessions of private men, legitimate bastards, establish religions, condemn or absolve (by attainders) whomever the Prince wills.