Particulars of his citations.

none.

to limit the kingly power rests mainly on
a passage the
authenticity of which is extremely doubtful, and William
Raleigh whatever he may have become as bishop, was
as judge distinctly a king's friend. More probable does
it seem that the bias was not political, but juristic, that
Bracton regarded Pateshull and Raleigh as the heads of
a school of law and of lawyers. Of rival schools of lawyers
Englishmen know little. For centuries past our scheme
of justice has been so concentrated that rival schools have
been impossible. Every lawyer has belonged to the one
orthodox school of Westminster, or has been simply no
lawyer'. Blackburn, Mansfield, Hale, Coke, Littleton do not
found sects; Bracton himself, so far as we know, founded
But in the first half of the thirteenth century it may
well have been otherwise and it was otherwise abroad. The
rapid influx of civil litigation into the royal court must have
demanded a rapid development of common law and there
well may have been strong and permanent differences of
opinion among judges and lawyers even about fundamentals.
There may have been Proculians and Sabinians. In particular
the respect to be paid to Roman law may have been a hotly
contested point. We do not know how this was; perhaps
we hear only one side of the case; the school of Pateshull
and Raleigh still lives and is eloquent; its rivals, if rivals it
had, perished for they had no spokesman to match against
Bracton. Lastly we may not forget that when Bracton visits
Devonshire, he chooses a Raleigh to sit with him on the
bench, and that he holds land of the Raleighs. Possibly he
was the pupil, the clerk, the friend of Bishop William.

:

At any rate the fact remains the apparent preference of two judges of a past time above all other judges past or present. But in order to duly weigh this fact we must descend to particulars, and consider whence it was that Bracton obtained his lore of cases.

He cites as I reckon 494 cases; this includes some vague allusions to matters of uncertain date. The nature of his citations may be seen from the following table which is approximately correct.

Pleas in the Bench, A.D. 1217–1234 .

271

1240 15

Pleas which followed the king, A.D. 1234-1240

Pleas from eyres of Pateshull

Pleas from eyres of Raleigh

Later cases expressly dated

Undated cases

117

34

9

48

494

His method of vouching cases, when once it is mastered, will seem very orderly and intelligible. The citations fall into three great classes; a few specimens of each shall be Three classes given1.

of rolls used by him.

Rolls.

1. Citations of De Banco Rolls, the rolls of the Bench. De Banco A complete citation of this kind will name no judges and no court, but will mention the names of the parties, the county, the year, and the term: thus

Item ad hunc ultimum casum facit expresse de termino S. Hillarii anno Regis Henrici sexto in comitatu Staffordiae de Rannulfo Comite Cestriae et Priore de Kenelworth de ecclesia de Stoke. (f. 246 b.)

...probatur de termino Paschae anno Regis Henrici xvo. in comitatu Essexiae de Geruasio de Aldermanbury. (f. 407 b.)

Ad idem facit quod habetis de termino Paschae anno Regis Henrici xvjo. in comitatu Suthantoniae de Engelardo de Cygoiny. (f. 407 b.)

Et ad hoc facit de termino S. Michaelis anno Regis Henrici xiiij. incipiente xvo. in comitatibus Suffolkiae et Essexiae de Emma quae fuit uxor Rogeri filii Swani. (f. 312.)

rarer.

Rolls.

2. Citations of Coram Rege Rolls. These are much Coram Rège Bracton will say of a case vouched from such a roll that it is among the pleas which follow the king and will give the year, but no term; thus—

...ut inter placita quae sequuntur Regem, anno regni Regis Henrici xix., assisa ultimae presentacionis inter Priorem de Wallingford et Rogerum de Quincy et Simonem de Thennore. (f. 16 b.)

1 It is the more necessary to explain this matter at length because the person who made indexes for Sir

Travers Twiss seems to have thought
that every case belonged to some
eyre,

Eyre Rolls.

Explanation of this classification.

...ut inter placita quae sequuntur Regem anno xxo. assisa nouae disseisinae de Waltero de Emdene et Alicia filia Ernaldi. (f. 195.)

3. Citations of Eyre Rolls. In making these Bracton names the county and almost always the judge. Often he specifies no year, because to do this is needless. Pateshull, for instance, visited Yorkshire more than once; therefore it will not do to speak merely of his Yorkshire eyre; one must be more particular, must say his last eyre, or his eyre of such a year. On the other hand it is quite sufficient to speak of Raleigh's eyre in Bedford, or Leicester, or Buckingham, for (at least as principal judge) he visited those counties but once, so there can be no confusion. Here are specimens:

...ut de Itinere Episcopi Dunholmensis et M. de P. in com. Ebor. anno Regis Henrici tertio, assisa nouae disseisinae, Si Rogerus de Halgheton. (f. 50.)

...in Itinere M. de P. anno Regis Henrici decimo in com. Ebor. de Emma quae fuit uxor Raymeri le Franceys. (f. 304 b.)

...ut de ultimo Itinere M. de P. in com. Ebor. anno Regis Henrici xo. de quadam Juliana. (f. 298.)

Et de hac materia inueniatur in Itinere M. de Pateshulla ad assisas nouae disseisinae capiendas et gaolas deliberandas in com. North., assisa nouae disseisinae, Si Rogerus de Deneford. (f. 169.)

...ut de Itinere W. de Ralegha in com. Bedf., assisa nouae disseisinae, Si Milo. (f. 170.)

...ut de Itinere W. de Ralegha in com. Bedf., de quadam Emma Bouastra. (f. 312.)

That the most important of the plea rolls would fall into these three classes is just what we ought to expect if we have read Bracton's account of the judicial organization of his time. There are justices travelling about under various commissions; sometimes they are sent on a general eyre ad omnia placita, sometimes their power is more limited, they are to deliver the gaols and take the assizes, sometimes they are specially authorized to take just this, that and the other particular assize. In a classification of plea rolls, the rolls of cases heard under these special commissions should form a separate class as Assize Rolls. A few exist, notably two of

Bracton's and several of Preston's. But Bracton does not cite rolls of this class; they would not be first-rate authority, such assizes being taken by a single professional judge with lay associates, or sometimes by four laymen. Then there are justices residentes in banco. Lastly there are others who go about with the king, who are at the king's side. The yet extant rolls at the Public Record Office will fulfil this expectation; we find rolls of these three great classes.

no No eyre rolls

On

Now with one exception' Bracton, I believe, cites Eyre Roll that is not a roll of Pateshull or of Raleigh. the other hand he has more than a hundred cases from Pateshull's rolls, more than thirty from Raleigh's. Perhaps this fact will not seem so significant to the reader as it does to the writer of this. Therefore be it said that there must have been a very large number of other Eyre Rolls; many exist at this day; many have perished. Thus, for example, take the first eyre of the reign; judges were sent into all the counties of England except eight"; every county would have its roll; Bracton cites but one of these rolls; from the roll for Yorkshire, which county was visited by Pateshull and the Bishop of Durham, he vouches a dozen cases. Again in 1227 commissions were issued for most of the counties; Pateshull's journey in Kent, Essex, Hertford, Norfolk and Suffolk supplies Bracton with a profuse crop of cases; Segrave was sent into six counties, other judges were sent elsewhere; Bracton culls no one case from their rolls. By 1250 the number of Eyre Rolls of Henry's reign must have amounted to a hundred and more. Of course the very fact that there were so many rolls would have obliged a text writer, even if he had access to them all, to make some choice, to study and cite just a few. What I am at present concerned to urge, is that any other text writer or student than Bracton, would very possibly have thought it best or found it convenient, to read and to cite an entirely different set of rolls; to all seeming there must have been a vast supply.

1 Br. f. 413; as to this case from an eyre of Thurkelby see above p. 49.

2 Rot. Cl. vol. 1, p. 380 b.
3 Rot. Cl. vol. 2, p. 205 b, 213.

used but

His choice of

De Banco

Rege Rolls.

When Bracton cites the De Banco Rolls and the Coram and Coram Rege Rolls, he does not as a general rule name the judges who heard the case. This is very natural for without their names the reference is complete and verifiable, and but seldom do their names appear upon the roll. These citations therefore do not explicitly set before us Pateshull and Raleigh as the two judges whose decisions are really sound law. Nevertheless the same principle or partizanship, caprice or accident, which governed the citation of Eyre Rolls, seems to have been at work.

Differentiation of the Courts.

We are here tempted towards the slight anachronism of speaking of a Court of King's Bench and a Court of Common Pleas. It would be but slight for the differentiation of these two courts was almost accomplished; still it is best to adhere to the terminology of the time and we do not yet read of a Common Bench and a King's Bench. To judge from the extant plea rolls it would seem that at latest from the year 1234 onwards the state of affairs was this:Regularly every term judges sat on the Bench (in Banco) at Westminster, and the process which brought suitors before them was process compelling attendance coram justiciariis nostris apud Westmonasterium. At the same time the king was going about the country attended by judges; the process compelled attendance coram nobis ubicunque fuerimus in Anglia. What is more, there was an incipient differentiation of business; we find defendants who have been ordered to follow the king pleading to the jurisdiction and relying on the well known words of the Charter about communia placita1; but as yet the special competence of each court is only vaguely defined. Again, we find that errors committed by the justices in the Bench can be corrected coram ipso rege'. Lastly there are two independent sets of rolls and between them there is this difference, (this will explain Bracton's method of citation,) that the rolls of pleas in the Bench are terminal rolls, while the rolls of pleas which follow the king are annual rolls3; it may be that

1 See Cases 1213, 1220.

2 See Cases 1166, 1189, 1190.

3 I am here speaking only of a few

years immediately following 1234; I believe that this distinction soon disappears.