Hailed by Maitland as the work of ‘England's greatest medieval legal writer’, the treatise known as Bracton has since suffered more than a century of eclipse. No longer attributed to the royal justice, Henry of Bratton, as sole author, not only is its composition now considered a collaborative and confused affair, extending from the 1220s to the 1260s, but by the time of its circulation, in fifty or more surviving manuscripts from the 1270s onwards, the law of the king's courts had so changed as to render a great deal of Bracton either misleading or hopelessly archaic. Thomas McSweeney's ingeneous and thought-provoking study begins by acknowledging the degree to which, thanks largely to German scholarship, Bracton is now known to be infused with both Roman and canonical influences. Its authors, including William of Raleigh (future bishop of Winchester) and Henry of Bratton (canon of Wells, archdeacon of Barnstable, and chancellor of Exeter Cathedral) were themselves the eponymous ‘priests of the law’ of McSweeney's title: clerics, long familiar with canonical modes of thought, themselves seeking to operate within a ius commune beholden not only to Gratian but Justinian. ‘The authors of Bracton’, McSweeney argues (p. 114), were responsible for ‘desperate attempts’ to describe English court procedures ‘using both the terms and the methods of Roman-law analysis’. Although their results, he suggests, were ‘disastrous’, not least in their efforts to superimpose Roman ideas of possession or ownership upon English ideas of seisin or right, he contends that they sought to use the plea rolls and judgements of the English royal courts as if they were citing the consilia and responses of the Codex or Digest. To this end, they compiled their own collections of excerpts from the plea rolls of the king's courts, most famously the manuscript known as ‘Bracton's note book’. Here the opinions of such authorities as Martin of Pattishall or William of Raleigh could be substituted for the civilian wisdom of Ulpian or Irnerius. The intention behind all this was to teach English law to future judges, both via lecture courses delivered to the small circle of those who served the royal courts, and by supplying models of how complicated legal disputes might be digested into the plea rolls. So far so good. But what might take a hundred words or so to summarise is here fleshed out into seven substantial chapters. The basic contention, that Bracton was modelled on and intended to supply an English equivalent to the Corpus iuris civilis, adopts a maximalist approach to Bracton's civilian learning, reformulating Sir Henry Maine's claim, first made in 1861, that the treatise's ‘entire form and a third of the contents were directly borrowed’ from Justinian. Yet, if intended as codification, Bracton failed entirely. Even as teaching aid, who, one wonders, could ever have supposed that the Corpus itself might serve as course-book, rather than as a body of learning from which commentaries and glosses could be drawn? If its authors were the expert civilians posited by McSweeny, why did they simply copy or adapt the work of Azzo or Raymond of Penyafort, rather than steering any original course of their own? Maine dismissed Bracton as fraud. McSweeney more charitably treats it as a heroic failure: flawed in execution yet coherently conceived. In the process, various wider questions are ignored. There is only glancing acknowledgement here of Bracton's political theology. There is a risk of treating the book itself as a finished artefact rather than as an assembly of work in progress. More importantly, why did the study of Roman law so flourish in England, and why did Gerald of Wales or Ralph Niger (barely mentioned here) express such alarm at its popularity? Why did the authorities go to such length to counter its spread, at Paris in 1219, and most likely in London, after 1234? Why did so many English clerics continue to flock to Bologna, into the 1260s and (if we are to judge from the published Chartularium Studii Bononiensis) long after? Surely the civilians so trained, from the days of Vacarius onwards, were first and foremost intent upon careers in canon rather than English royal law? True, the occasional Roman law tag might be cited in the king's courts. McSweeney's chapter vii, focusing with originality upon the litigation and language of Henry of Bratton's own plea rolls, reveals as much, through Bratton's occasional (though hardly abundant) reference to usus (never an exclusively Roman term) or to actions undertaken corpore et animo. Certainly McSweeney supplies new and important commentary on a case involving the Somerset manor of Dulverton, significant for our understanding of Henry of Bratton's competence and determination to out-argue his fellow justices. Significant, even though the basic framework of the case might benefit from prosopograpical enquiry, not least to establish whether the two chief parties, Roger de Reyni/Reigny, and Richard de Turberville were, as here implied, sons of the same father, or in reality half-brothers disputing a maternal inheritance. In an appendix, McSweeney offers further support for the thesis, first advanced by Samuel Thorne, that Bratton's so-called ‘Note book’ was copied not from the original plea rolls but from earlier such excerpta themselves already glossed. There are minor glitches (for example, the prior of ‘Lee’ for Little Leighs at p. 157; the law of ‘curtsey’ for curtesy (i.e. a husband's rights to a deceased wife's estate, p. 197), and an occasional failure to acknowledge the main run of Curia regis rolls or the latest scholarly consensus (for example, p. 231, on ‘Little St Hugh’ of Lincoln). Oxford University Press should be ashamed of the copy-editing of footnotes, where many conventions are flouted. More significantly, McSweeney's enquiry invites us to turn from intentions to outcomes. In particular, how were the many early manuscripts of Bracton received, annotated or used: as instruments of practical instruction, or (as seems more likely) as monuments of dead learning? As with Bracton itself, what McSweeney supplies are not definitive answers to a set of ‘problems’, but intelligent and pertinent insights that such ‘problems’ provoke. Many of Bracton's ‘problems’ remain insoluble, albeit central to the concerns of anyone now working in that opaque but vibrant hinterland where canonists and civilians, historians and theologians, still meet.
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