to make; at present an answer could be no better than a hazardous guess. § 6. Of Bracton's Selection of Authorities. authorities remarkable. The later the date to which the book is assigned the Selection of more remarkable is Bracton's selection of authorities; but very any way this is remarkable enough. We are almost justified in saying that what he writes is a treatise on the law of England as administered by two judges, Martin Pateshull and William Raleigh. Stress must be laid on this point, for it will be of much importance hereafter; therefore of Pateshull and Raleigh a little should be said. Pateshull. Martin Pateshull was from the beginning of Henry's Martin reign the foremost, perhaps in an untechnical sense we may say the chief, of the king's professional judges. He was not chief justiciar; that title belonged to Hubert de Burgh, who of course was no lawyer; the chief justiciarship was not a post for a lawyer, at all events for a mere lawyer. But in any list of the regular justices Pateshull's name so constantly precedes all others that he must have enjoyed some preeminence, though perhaps not of a very definite kind. He was a churchman, archdeacon of Norfolk, dean of St Paul's'. He seems to have acquired a high reputation for learning and industry. It was hard work to go circuit with him, so strenuous and zealous a judge was he. Rolls extant, and for the more part in print, enable us to trace his movements in eyre after eyre; from other sources we can discover but very little about him. He is nearly the first, if not the very first, Englishman, who becomes famous as a learned industrious judge and no more. He died on the 14th of Nov. 12293. 1 Hardy's Le Neve, vol. 2, pp. 308, 482. 2 Royal Letters, Henry III. vol. 1, p. 342. 3 That he died in 1229 is beyond all doubt. It is a fact attested by several first-rate chronicles. See Mat. Par. Chron. Maj. vol. 3, p. 190; William Raleigh. William Raleigh did not die until 1250, but his career as a judge came to an end some ten years earlier. Of him there is more to be said, since he becomes for a few years a striking figure in the history of England. He had already been for some time a judge in the royal court when the troubles of 1234 raised him to the highest place. In 1232 the king broke with Hubert de Burgh and in his stead appointed Stephen Segrave chief justiciar of the realm1. On this followed the rising of the Earl Marshall and the delivery of Hubert from his prison at Devizes. The king was forced to dismiss his alien councillors and Segrave along with them. At Ascensiontide in 1234 the reversal of Hubert's outlawry was pronounced in a great assembly of prelates and barons by the mouth of William Raleigh. Henry did not fill up the vacant justiciarship, but it seems plain that during the few next years Raleigh was the premier judge, travelling about with the king and hearing those pleas which followed the king. He stood well with the king, was his trusted servant and councillor. We read how in 1237 the king deputed him to demand an aid from the barons, how in the same year he went on the king's behalf to watch the legatine council at St Paul's, how he sat there in his surplice and canon's cope3, for besides being treasurer of Exeter he was a canon of St Paul's. But he did not long enjoy the royal favour. In 1238 the see of Winchester became empty. The king was bent on obtaining it for his wife's kinsman William of Savoy, bishop elect of Valence; but the monks wished for Raleigh, objecting to the king's candidate that he was a man of blood. Henry's angry retort alluded to Raleigh's judicial career'He has killed more men with his tongue than the Elect of alive until 1232, on the ground that 16, this evidence would be absolutely 1 Mat. Par. vol. 3, p. 220. 3 Mat. Par. vol. 3, pp. 416, 417. Hardy's Le Neve, vol. 1, p. 414; vol. 2, p. 403. Valence has with his sword'." The monks for a time gave up Raleigh and elected Ralph Neville the king's chancellor; but the king induced the pope to quash the election. Meanwhile other chapters looked to Raleigh as to one who would make a good bishop, one to whom the king could not possibly object. In February 1239 he was elected bishop of Coventry and Lichfield, in April bishop of Norwich. He chose Norwich and was consecrated in September. But Winchester was still vacant; the monks would not have William of Savoy; nor when he died would they have Boniface of Savoy; in September 1242 they again chose Raleigh and despite the king's opposition the pope confirmed their choice. quarrel with Henry then set himself to persecute Raleigh persistently The king's and vindictively. No principle, so far as we can see, was Raleigh. involved in the persecution; the royal will had been crossed and the king was obstinate and spiteful. Raleigh would not give way; he was driven from the country. Not until 1244 could the king be reduced to reason. In the spring of that year peace was made and Raleigh returned to England. All Englishmen, says Paris, save only some of the king's clerks who had fomented the discord, were glad at his return; Benedictus qui venit in nomine Domini was on their lips, for they had the highest hopes that good would come to king and kingdom from his ability and sound sense. Very soon after this we find him taking a somewhat leading part in a parliament which resisted the king's demands for money and propounded a large scheme of reforms". But we do not learn that he became an active politician, and he seems to have lived on fairly good terms with the king. In 1249 he left for France to live there frugally; he was sadly in debt, the struggle with Henry having cost him dear. He never Bracton's attachment returned to England and died at Tours in September 12505. It has been necessary to notice these things because the Was question may for a moment arise whether Bracton in choosing th as one of his two highest authorities a judge who became partizanship? 1 Mat. Par. vol. 3, p. 494. 3 Mat. Par. vol. 4, p. 362; Stubbs, Const. Hist. vol. 2, p. 62. 4 Mat. Par. vol. 4, p. 590; vol. 5, pp. 1, 58, 94. 5 Mat. Par. vol. 5, pp. 96, 117, 179. to Raleigh political Bracton's neglect of all judges hull and Raleigh. famous for his resistance to the king, may not be betraying some political partizanship. But this seems improbable. It is true that Raleigh came to be regarded as a champion of national and ecclesiastical rights; men compared him even to Becket and to Anselm; Paris dilates on his wrongs. But there is no reason to believe that either Henry or Raleigh was contending for a theory of church or state; the quarrel was personal; the bishop had got what the king wanted. Besides (and this seems decisive) it was Raleigh the bishop, not Raleigh the judge, who withstood the king. Raleigh the judge, whose judgments Bracton cites, was the king's confidential minister. Paris, on the other hand, though he speaks highly of Raleigh's legal knowledge, ability and general character, evidently did not regard his judicial career as matter for much praise. Raleigh was a Matthew called to the apostolate from the receipt of custom; at his consecration there was joy in the presence of the angels of God over a repentant sinner'. It can hardly then be a respect for constitutional government, a wish to curb the king, or indeed any political thought or feeling, which makes Bracton single out this judge from among all his fellows to be a father of law for all generations. 4 Now in Bracton's pages we may count the occurrences of except Pates the names of these two judges, Pateshull and Raleigh, by the dozen; of any other judges he hardly ever speaks. The sum total of what he has to say of them is I believe this :-He mentions one case3 or perhaps two cases which came before Simon Pateshull, the great judge of John's reign, possibly a kinsman of Martin. Certain distinguished persons get named, because they accompanied Martin in some of his eyres and being of high rank were named before him in the commission, e. g. the Bishop of Durham and the Abbot of Reading; they however were not professional judges. William of York who 1 Mat. Par. vol. 3, p. 617. 2 For an estimate of Raleigh's character, see Stubbs, Const. Hist. vol. 2, p. 302. 3 Br. f. 422 b. 4 Br. f. 50. Most MSS. have here Simonis or S. but M. occasionally appears and may be the right reading. became bishop of Salisbury is mentioned thrice', Roger Thurkelby perhaps once2; both of them were among the foremost judges of their time. Of Robert Lexington whose judicial career was very long we hear merely that on two occasions he erred3; of his brother John of Lexington, who at one time kept the king's seal, we hear that he also erred, and we hear no more. The name of Simon of Ropelay, who occasionally took assizes, occurs once; and there is notice of an attaint taken by Engelard of Cigogné and others; but Engelard the keeper of Windsor Castle was most certainly no lawyer. All this is insignificantly little; or rather significantly little, for it makes Bracton's selection of authorities an extremely well marked, distinctive, selection. He is silent about his own colleagues, the men who sat with him on the bench, and of their immediate predecessors, though among them there were several who became famous as judges, in particular Gilbert Preston, Roger Thurkelby, Henry of Bath, William of York, Robert Lexington. But this is not all; having gone back to a past time he apparently picks and chooses among the judges of that time. In particular he says hardly anything of a judge who was a contemporary of Pateshull and Raleigh, who rose to a more exalted place than was attained by either of them, who certainly was an able lawyer if he was an unscrupulous politician. He hardly mentions Stephen Segrave, about whom some words are necessary since a statement directly at variance with that which has just been made is found in a book of high authority. treatment of From the beginning of the reign Stephen Segrave has a Bracton's place among the royal judges second only to that of Pates- Segrave. hull, and before Pateshull's death he was already high in the king's favour'. He joined in the plot of those who schemed for the fall of Hubert de Burgh, and when that fall was 1 Br. f. 130 b, 183, 374. Consecrated in 1247. See as to his reputation as a judge, Mat. Par. vol. 5, pp. 374, 534, 545. 2 Br. f. 413, comp. Twiss, vol. 6, p. 258. The MSS. are about equally divided between Thurkelby and Raleigh; but if it be Raleigh then the M. I. date is wrong. 3 Br. f. 286 b, 418. 5 Br. f. 292 b. 6 Br. f. 293 b. As to Engelard's adventures see Pleas of the Crown, Gloucester, 1221, Introduction, p. xiij. 7 Mat. Par. vol. 3, p. 187. 4 |