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OXFORD LEGAL HISTORY SERIES
General Editors
PAUL BRAND
JOSHUA GETZLER
DANIEL HULSEBOSCH
AND
AMALIA KESSLER
This series presents original work in legal history from all periods. Contributions
to the series analyse diverse legal traditions, including common law; ius commune,
civilian, and canon law; colonial, imperial, and international law; and customary,
religious, and non-Western cultures of law. The series embraces methods ranging from
doctrinal and juristic analysis through to every variety of historical, social-scientific,
and philosophical enquiry. A leading purpose of the series is to investigate how legal
ideas and practices operated in larger historical contexts. Our authors trace changes in
legal thought and practice and the interactions of law with political and constitutional
institutions and wider movements in social, economic, cultural, and intellectual life.
Priests of the Law
Roman Law and the Making of the Common
Law’s First Professionals
T HOM A S J. M C S W E E N EY
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Thomas J. McSweeney 2019
The moral rights of the author have been asserted
First Edition published in 2019
Impression: 1
I first became interested in the history of lawyers as a law student. Our profes-
sion is a strange one. My Doktorvater is fond of saying that law school is de-
signed to replace your brain with an entirely new one. The degree to which law
school fundamentally transforms people is debatable, but I think law school is,
at the very least, designed to make people think that they have been changed;
a friend once observed that the only organization that does a better job than a
law school of convincing you that you have been transformed into something
different is the Marine Corps. We separate the world, by way of a curious ana-
logy to the clergy, into lawyers and laymen. In law school I began to wonder
how we got this way. When I got to graduate school, I became interested in the
processes by which people who work with law have constructed the image of
the lawyer as someone separate and different from people who perform other
types of work.
These kinds of questions kept coming back to me when I read the thirteenth-
century treatise On the Laws and Customs of England, more commonly known
as Bracton. I am the kind of person who is interested in the kinds of things that
interested the authors of Bracton. I like to tell my property students that my
class will teach them to see the world as it truly is. When they walk down Duke
of Gloucester Street in Colonial Williamsburg, they will no longer see box-
wood hedges and blooming crape myrtles. Rather, they will see a combination
of beautiful, abstract property interests: possessory estates, future interests,
easements, and covenants. And yet, when I read Bracton, I found that I was
less interested in what its authors wrote about the law than in why they wrote
it at all. What compelled this group of justices in England’s central courts to
spend what must have been a large amount of their spare time, working long
into the night watches, writing a massive treatise? I hope to show that Bracton
is at least as much about the justices who wrote it, and how they wanted to per-
ceive themselves and their work, as it is about teaching anyone how servitudes
worked in thirteenth-century England.
This book would not have been possible without the support of the many
people who devoted their time and energy to helping me develop as a scholar.
Many different institutions have been generous in their support for this project.
I have had a number of academic homes while I have worked on this project,
viii Preface
starting with the history department at Cornell University, where Priests of the
Law began life as my doctoral dissertation. That was followed by two years as
a visiting assistant professor on the faculty at Cornell Law School. From there
I moved to William & Mary Law School, where I feel particularly fortunate
to have a dean and faculty who have supported me as a historian of medieval
law. A number of individuals and organizations have provided financial sup-
port for this project, as well. I would especially like to thank fellow William
& Mary alumnus Joseph J. Plumeri for his support for the Plumieri Award
for Faculty Excellence, which helped me complete this book manuscript. The
Huntington Library in San Marino, California, provided me with a grant to
spend a month working with their legal manuscripts. The Graduate School at
Cornell University, the Mario Einaudi Center for International Studies, and the
Bibliographical Society of America sent me to England for a fruitful summer in
the archives. The staff at Cambridge University Library, the British Library, the
National Archives in Kew, the Wren Library at Trinity College, Cambridge, the
library at Trinity Hall, Cambridge, and Lincoln’s Inn Library in London all gave
me valuable access to their collections, and for that I am extremely grateful.
The Anglo-American Legal Tradition project at the University of Houston has
also been a wonderful resource and I would like to thank all who have worked
on that project for the work they have done to make the treasures of the British
National Archives more accessible.
There are a number of people who influenced my thinking about this pro-
ject as I was developing it. I have presented portions of this book project at
various conferences, colloquia, and workshops, including the 2015 Hurst
Summer Institute in Legal History, the annual meetings of the American
Society for Legal History in 2010 and 2016, the 2013 British Legal History
Conference in Glasgow, the 2015 Law and Governance in Pre-Modern Britain
Conference at the University of Western Ontario, the London Legal History
Seminar, the 2018 Medieval Studies conference at the University of Wisconsin,
the International Medieval Congress at Leeds, the International Congress on
Medieval Studies at Western Michigan University, the annual meeting of the
Charles Homer Haskins Society, the William & Mary Legal History Seminar,
the William & Mary Medieval and Renaissance Studies Colloquium, the
European History Colloquium and the Medieval Studies Student Colloquium
at Cornell University, and the faculty speaker series at Cornell, Emory, and St.
Louis University law schools. I appreciate the feedback I have received from the
participants in all of these events. I would additionally like to thank the student
editors at the Temple Law Review and the Buffalo Law Review. My first two law
Preface ix
been a wonderful mentor and has used his encyclopedic knowledge of law in
the thirteenth century to prevent me from falling into a number of errors. I owe
an unrequitable debt to Paul Hyams, my Doktorvater, for taking me on as a
graduate student, for shaping me as a scholar, for challenging me, for encour-
aging me, and for writing more letters of recommendation than I can count.
I hope I prove to be worthy of the faith they have both placed in me.
On a more personal note, my mom and dad were very supportive, as well. It
was nice to be close to them, as well as my grandparents and my sister’s family,
while I was working my way through graduate school.
I have saved the most important person for last: my wife, Abby, who has
patiently stood by me and given me her love and support through law school,
graduate school, my VAP, the job market, and the quest for tenure. It has worked
out well for us. We are now back in Williamsburg with two future William &
Mary alumni of our own, Sean and Charlotte, who were both born while I was
working on this book. They turned me into a coffee drinker, but they have also
kept me grounded while I have worked, long into the night watches, towards
tenure and to finish this project.
My study of history has given me a certain degree of humility about my own
role in the grand sweep of history. In order to really be remembered by later
generations, one has to be both exceptional and lucky. Even being the Roman
emperor or president of the United States does not, by itself, guarantee one a
place in our society’s historical imagination. For a historian of the middle ages,
the kind of mark one can make is quite a bit more modest. Historical know-
ledge proceeds incrementally. We each build upon what others have written.
My hope is that this book will contain something in it that is useful to a his-
torian of another generation, and that she will unlock more of the mysteries of
Bracton.
Table of Contents
Introduction 1
1. Setting the Stage 33
2. Law as Text 69
3. Thinking About Law 103
4. From Classroom to Courtroom 137
5. Cases and the Dialectic 166
6. The Genres of Authority 187
7. A New Plea Roll for a New Audience 205
Conclusion: An End or a Beginning? 240
SR Luders, A, Tomlins, TE, France, J, Tauton, WE, and Raithby, J (eds), The Statutes
of the Realm: From Original Records, etc. (1101–1713), 11 vols (London,
1810–28)
SS Selden Society
TNA The National Archives (United Kingdom)
A Note on the Sources
1 “Ius ergo derivatur a iustitia, et habet varias significationes. Ponitur enim quandoque pro ipsa arte,
vel pro eo quod scriptum habemus de iure, quod ius dicitur ars boni et aequi, cuius merito quis nos
sacerdotes appellat. Iustitiam namque colimus et sacra iura ministramus.” Bracton, vol 2, 24. I have pro-
vided a bit more of the Latin for context. As we shall see, the author did not so much write this sentence
as adapt it from an earlier source.
2 It was cited in a supreme court opinion as recently as 2018, when Justice Gorsuch, in his dissent in
Sveen v. Melin, cited Bracton for the principle that “Because legislation often disrupts existing social
arrangements, it usually applies only prospectively.” Sveen v. Melin, 138 S Ct 1815, 1826 (2018). It is
interesting for the purposes of this book to note that Justice Gorsuch was actually citing to a provision
of Roman law that had been worked, without attribution, into the text of Bracton. The statement that
“every new constitution ought to impose a rule on future things and not on things past” is probably a
paraphrase of a provision from Justinian’s Codex. Bracton, vol 3, 181. It was probably worked into an
already-complete passage at some later point in the editing process; it appears to have been inserted
mid-sentence and is not directly relevant to the material around it.
Priests of the Law. Thomas J. McSweeney, Oxford University Press (2019). © Thomas J. McSweeney.
DOI: 10.1093/oso/9780198845454.003.0001
2 Introduction
Pattishall (d. 1229), who was an important justice in the 1210s and 1220s, may
have started the project. His clerk, William of Raleigh (d. 1250), who would
become the chief justice of the court coram rege, the court that would later be
known as the King’s Bench, was probably the primary author. Raleigh’s clerk,
Henry of Bratton (d. 1268), who became a justice of the court coram rege him-
self, appears to have edited the treatise and added his own material to it. The
central argument of this book will be that the justices who wrote Bracton were
the first people in the history of the common law to think of themselves as
legal professionals. It will build upon the work of several scholars who have
examined the beginnings of the legal profession in England. Ralph Turner’s
magisterial work, The English Judiciary in the Age of Glanvill and Bracton,
c. 1176-1239, gives us a very detailed account of the early judiciary, and the
stages by which full-time justices came to dominate the work of the king’s
courts.3 C.A.F. Meekings and David Crook pick up where Turner left off in
their detailed narrative history of the court coram rege from 1234 up to 1272.4
Paul Brand has written on the judiciary in the reign of Edward I (1272–1307)
and, in particular, the “emergence during the course of the reign of a much
more recognizably ‘professional’ judiciary.”5 Although his focus is on the last
decades of the thirteenth century, Brand examines changes that took place in
the courts and the judiciary, some of which reach back into the first half of the
century. Brand’s Origins of the English Legal Profession deals primarily with the
origins of two other groups of legal professionals, the serjeants and attorneys,
people who worked for clients in the royal courts. These groups were coales-
cing around the same time the Bracton authors were writing, in the middle
decades of the thirteenth century.6 I am indebted to all of these scholars for
the detailed work they have done in reconstructing judicial careers in the thir-
teenth century. This book will build upon their work to illuminate the process
by which justices of the early thirteenth century came to think of themselves
as legal professionals. When these scholars discuss the professionalization of
the judicial bench, they tend to focus either on the development of expertise
3 Ralph V. Turner, The English Judiciary in the Age of Glanvill and Bracton, c. 1176-1239 (CUP 1985)
Society 2010) (hereafter, Meekings and Crook, King’s Bench and Common Bench).
5 Paul Brand, “Edward I and the Transformation of the English Judiciary” in MCL, 135 (hereafter
Brand, “Transformation”).
6 Paul Brand, The Origins of the English Legal Profession (Blackwell 1992) 54–55 (hereafter Brand,
Legal Profession). Brand notes that a reference in Matthew Paris’ Chronica Majora under the year 1239
to the king obtaining the services of all of the serjeants of the Common Bench seems to indicate that the
serjeants were an identifiable group of professionals by that time. Ibid, 55. There is evidence that some
people were practicing in the courts regularly enough to be considered professionals as early as the
1220s. Ibid.
Introduction 3
or on structural changes within the courts that placed them on a more regular
footing.7 Turner and Brand show us, for instance, that by the early decades of
the thirteenth century more of the central royal courts’ work was being done
by justices who served continuously for long periods of time and that many
justices began their careers as judicial clerks, gaining experience in the courts
before they ascended to the bench.8 Expertise is not the only mark of a profes-
sional, however. This book will focus on another aspect of professionalization,
the justices’ self-perception. The justices who wrote Bracton are interesting
figures not just because they had developed expertise in the law, but because
they actually thought of themselves, first and foremost, as people who worked
with law.
This book will examine Bracton and the other writings produced by the
Bracton authors for evidence of the ways the justices thought about themselves.
Bracton is a massive tome; it fills more than 1,200 pages in its modern edition
and generally fills a very large single volume in its medieval manuscripts.9 It
draws on many sources. Those sources included numerous forms of writs—
the small pieces of parchment that kept the royal administration running in the
thirteenth century—as well as legislative acts, such as Magna Carta and the
Provisions of Merton, and cases decided in the royal courts. The authors bor-
rowed from earlier English sources, such as the Glanvill treatise, written in
the late 1180s, just a few decades after the reforms of Henry II’s reign. Its au-
thors also probably had access to even earlier works, such as the Leges Edwardi
Confessoris, an early twelfth-century composition that claims to recount the
laws of a late Anglo-Saxon king. They may have known Latin translations of
genuine Anglo-Saxon law codes.10
7 Brand notes, for instance, that there was a growing tendency throughout the thirteenth century
towards fewer justices who served longer periods of time on the bench and who did so to the exclu-
sion of other types of work. These tendencies became much more pronounced in Edward I’s reign, but
the trend towards specialization appears to have begun as early as John’s reign, if not before. Brand,
“Transformation” (n 5) 141–44. This tends to show that justices were specializing and developing ex-
pertise in the work of the royal courts. Brand also notes that there is some evidence that there were
attempts to place justices on regular salaries as early as 1218. Salaries became more common in the
ensuing decades until, in the 1250s, most justices were receiving them. Ibid, 144–47.
8 Brand, Legal Profession (n 6) 27–29. Brand argues that the development of a professional judiciary
helped create the conditions necessary for a professional bar to develop. Ibid, 32.
9 The treatise known as Glanvill is much smaller. Glanvill fits easily in a single volume of 177 pages in
its modern edition, with fewer words per page. It is slightly more than one-tenth the size of Bracton.
10 HG Richardson, “Studies in Bracton” (1948) 6 Traditio 61, 75–78 (hereafter Richardson, “Studies
in Bracton”); TFT Plucknett, Early English Legal Literature (CUP 1958) 53 (hereafter Plucknett, Legal
Literature); Wiebke Fesefeldt, Englische Staatstheorie Des 13. Jahrhunderts: Henry De Bracton Und Sein
Werk (Musterschmidt Verlag 1962) 82; Paul Brand, “The Date and Authorship of Bracton: A Response”
(2010) 31 Journal of Legal History 217, 220–22, 225 (hereafter Brand, “Date and Authorship”).
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