Biblio brachten 1878
Introduction to the dissertation (part of the abstract) on the
topic "Henry Bracton and the treatise "On the laws and
customs of England": From the history of political thought
of the XIII century"
Relevance of the topic.
A comprehensive, comprehensive study of the process of formation and functioning of the
judicial and legal system as the socio-political evolution of medieval Europe is one of the urgent
tasks of modern historical science. As you know, one of the most important stages of this process
was the creation of "written law" (lex scripta), which became an integral part of social and
political life.
In England in the 13th century, "written law" received its fixation and development in such
outstanding monuments of the era. as a treatise "On the Laws and Customs of England" and
"Notebook" by Henry Brighton "which have long become and still remain the object of close
attention from lawyers and historians, attention is all the more ravaged because these monuments
in their own relief poisoned the main changes in social -political life, and moreover, in the very
mental climate of the country, changes that were "primarily the result of a change in the balance
of power in the code of a new round of political struggle that unfolded after the adoption of the
Magna Carta.
We recall that shortly after the surrender of John the Landless to the barons, the royal authorities
took vigorous measures, seeking to regain their lost positions. Thus, already in 1217-1218, that
is, at the beginning of the reign of Henry III, the court in Westminster was again opened, and the
royal judges resumed their work. in full “The situation in the country has made it necessary to
provide a legal justification for the prerogatives of royal power, a clear statement of the rights
and duties of the ruler and subjects. Conditions were created for the consolidation of many legal
norms and their unification on the basis of Roman law, on its well-developed principles of strong
state power ”A large role in the implementation of these tasks was played by the College of
Lawyers in Westminster, which included the royal judge Henry Brighton,
Thus, during the reign of Henry III, there were objective prerequisites for bringing into the
system and unification of legal norms in the country and, consequently, for the emergence of
such a fundamental legal monument as G. Bracton's treatise "On the Woolies and Customs of
England". A monument, without an in-depth study of which it is impossible to properly assess
the essence and scale of the social processes that took place in the era of the formation of the
foundations of the English class representation.
Purpose and objectives of the study.
Since the main place in the history of medieval society was occupied by questions of power and
land, the study of the legal status of royal power and the legal relations associated with landed
property creates an opportunity to better understand the meaning of the social and political
changes that took place in the English kingdom.
The purpose of the study, therefore, is to study how and to what extent Henry Herakton's treatise
reflected and substantiated changes in the state of English society and the XIII state.
In accordance with this, the main tasks of the work were determined:
1, Consider the problems associated with the history of the creation of the Notebook and the
treatise On the Laws and Customs of England.
2. Analyze the views of Henry Brighton on royal power in the context of the political and social
realities of England
XI11c, and also to find out how, in the process of systematizing the norms of I common law ''
and creating "written law", the prerogatives of the crown were substantiated, and how royal laws
were applied in practice *
3. Consider questions related to the activities of the courts of "common law" and ecclesiastical
courts in England in the 13th century, revealing the nature of the inaction of delegated and
ecclesiastical jurisdiction on the judicial system of the country,
4. Determine the main forms of claims, orders and possessory asoivs according to the treatise of
G. Brighton to identify the main features and characteristics of the types of court cases. which is
important for understanding the nature of changes in the field of social and legal relations, as
well as to identify the methods of the expansion of royal jurisdiction that took place at that time.
The chronological framework of the study is determined by the period when Henry Brighton
lived and worked (about 1205 -: 1167), approximately coinciding with the reign of Henry III
(1216-1273) - the time when, in the course of the socio-economic and political development of
England, conditions were created for further centralization of the country, strengthening of royal
power, the formation of a more complex state apparatus, reflecting the new alignment of political
forces, and at the same time for the formation of the foundations of English parliamentarism.
However, the need to compare Brighton's treatise 1\ on monuments of an earlier and later time
makes it necessary in a number of cases to go beyond the specified chronological framework.
Source base.
The dioortashchi is based on the analysis of the works of Henry Bracton treatise "On the Laws
and Customs of England" and the "Notebook" genetically related to him (collection of court
records),
Along with them, the study draws on additional sources that are essential for characterizing the
place and role of the above-mentioned monuments in the history of English medieval society.
Firstly, this is the treatise of the royal judge Ranulph GlenO s inll "On the laws and customs of
the kingdom of England", written around 1187, and served as the basis for G. Brighton in
developing the rules of royal justice.
The study of English legal sources is impossible without comparing them with monuments of
Roman law. In his treatise
Mr. Brighton most often referred to the works of Adzo from Bologna.
U1150-1£30gg\> This ¡fupniest expert on Roman law was at the head of the Bolonok school,
and his main work, "The Land of Roman Laws'5, was very popular with his contemporaries.
Referring to this source allows us to judge the influence of Roman law on the formation of the
English system of "written law", and in particular on the treatise of G. Brighton. We have used
excerpts from Aco's "Summa" published in 1895 by Matledd, together with thematically similar
passages from the treatise "On the Laws and Customs of England".
Of the sources involved in the work of publications, modern} -: G. Brakton, it should be noted
"Selected Complaints to the Crown", 1200-1225. "Commentary on the claims of the reign of
Henryk PGR and" Closed courts of Henryk IIGo They allow us to judge the types of court cases
that, as a rule, dealt with royal pike perch, including the current litigation that G. Brighton
considered necessary include b treatise oo with your detailed commentary,
The publication "Selected Complaints to the Crown, 1000-12£5yy" was published on 4
F.V. Mztland in 1888. Here are the litigations, which, according to the scientist, were a reflection
of the most typical court cases that were heard by the visiting court of the Royal Court. The
publication consists of four sections, the first two are devoted to the complaints of the visiting
session of the Court and the King's Bench during the reign of John of Beavemezhny., the other
two contain litigation of the visiting session of the Court to the King's Bench so the reign of
Henry 111, 5
In the publication "Closed oviks", undertaken in 1936. a team of scientists, contains the most
significant judicial acts of the four years of the reign of Henry III - from 1261 to 1164gg.
Basically, these are lawsuits of "rebellious barons", which reflected the ups and downs of the
confrontation between the baronial opposition and royal power. 6
In "Commentaries on Claims"" which were published in 1963. edited by S.F. Miloosh, court
cases from the period of the reign of Henryk III, belonging to the categories of "royal cases", are
collected, among them there are litigations, a detailed analysis of which is contained in the
treatise of G. Brockton,
Ownerships of the 13th century cannot be studied without consideration of litigation by visiting
sessions of the Royal Court. Therefore, we used sources that were edited by D, M, Stanton: a
collection of court records of an advantageous session of the court, Gloucester, Workshire and
Staffordshire 12E1, 1222. and Complaints of Judges., which were decided in the presence of the
king or his representatives in 1:198-1212.
The first volume of the publication served as a valuable addition to them.
V. Wirda "Lists of Manuscripts of Dane and Part of Wales XIII ~ XYII bv'X The acts presented
in it are distinguished, first of all, by the detailed description of litigation, and, in particular, the
availability of information about the social status of the plaintiffs and their rights. Among the
court cases there are some incidents about the participation of "the favorite of the faithful judge
of King Henry III - Henry Brighton."
Another group of sources consists of monuments that make it possible to judge the perception of
G. Brighton's treatise by subsequent generations of English lawyers. So, soon after his death, in
1280-1285, an unknown person, relying on G. Brakton, compiled Fleta (Fieta) - a gadfly of
English laws, with brief comments on them in 10 books. For the dissertation 10 "topics, books 5
and 6 are of greatest interest,
A source similar to "Flete" is "Suscha Thorntsna'% created by the Chief Justice of Edward I Gilbert Thornton. "Sum" consists of eight parts, which coincide in clothing with
11
sections of G. Brighton's treatise and present them in an abbreviated form,
In direct connection with the treatise {i0 on the laws and customs
1S "
England" is also "Britton"" Between these sources there are the most textual coincidences.
A more detailed description of both the works of F. Brighton and other monuments related to this
topic is given in the chapters of the dissertation.
The state of knowledge of the problem.
The leading place in the historiography of the issue, naturally, belongs to the works of English
researchers,
The beginning of an in-depth study, in the context of the socio-political history of England in the
121st century, of the treatise "On the Laws and Customs of England" was laid by a professor at
Cambridge University * the founder of a critical trend in English medieval studies ~ F.V.
Matland.
A significant place in the works of F, Matland, related to the study of the works of Henry
Bracton, was occupied by questions of authorship and textual criticism of the treatise. Science
owes him the discovery of a number of documents related to the life and work of the great
lawyer. On the basis of extensive archival material, the scientist reconstructed a number of
episodes from the biography of G. Brighton. He was the first to introduce into scientific
13 "mouth" Notebook ? discovered in 1884 Russian scientists P.G. Vinogradov and F.V.
Mztland.
A significant contribution to the development of the question of the relationship between the
English ecclesiastical jurisdiction and royal power was made by the monograph by F.V.
14 some canon law in the English Church", where the researcher focused on the "two swords"
theory, which had a significant impact on the formation of the English "common law" system
and on strengthening the power of the king in secular affairs.
Posthumously, in 1909, a fundamental study by F.W. Shtland was published "based on legal
monuments, including G. Brighton's treatise "0 Laws and Customs of England" and his
"Notebook", dedicated to the forms and categories of claims, Their Role in Medieval English
Legal Proceedings” monograph significantly advanced the study of the works of G. Brakton.
At the same time, the legal historian F. Pollock was developing approximately the same topic
about F. Mztland. In 1887, they jointly published a major work on the history of English
morality before and during the 16th reign of Edward I. In the work, which summarized the
extensive material on the history of English medieval justice, the playful treatise G "Brighton
occupied a significant place.
In a study by F. Pollock on the English system of contracts
• And obligations, which have not been republished, the scientist paid special attention to the
principles of contractual contracts in the Roman and English systems of law, the comparison of
English torts with Roman law. In particular, individual precedents and works of G. Bracton were
carefully commented on.
It is noteworthy that F.V. Matlayad and F. Pollock considered the problem of the relationship
between history and law on diametrically opposed positions. For F. Podjock, history plays the
role of a “servant of law”, while F. Mztdand, considering law, is a neck part of history,
18 calling for a significant impact on the life of society. Such a difference in approaches to
iotorico-legal problems - albeit not in a very clearly expressed form - will also manifest itself in
subsequent generations of researchers of the Bractonian heritage.
Over the next decades, many of the ideas put forward by F. W. Mztland and his contemporaries
regarding the textual criticism of G. Bracton's treatise, the adaptation of the norms of Roman law
in English justice, the categories of claims, and so on, were the subject of numerous discussions.
In 1878, according to a manuscript from the Boddeash library, the text
19 of the treatise was published by T. Twiss, but, according to researchers, T. Twiss's edition
was far from complete. It did not meet the requirements of textual criticism of its time in any
way - and even more so it was imperfect from the point of view of science at the turn of the 19th
- 20th centuries. The need for a scientific edition of the treatise became more urgent. This great
and painstaking work, which took years, was undertaken by prof. D,3, Woodbin. He tried to
solve the problem that his predecessor F. Matland dealt with, who tried to restore the original
text of the treatise by comparing in detail the numerous copies that have survived. As you know,
F. Matland didn’t cry out your work” until after the death of scientist D.E. Woodbin continued
his work. D.Z. Woodbin saw it in the identification and detailed study of the main lists of the
treatise, in order to eliminate the errors and contradictions that arose when copying the treatise
by scribes, as well as to determine the true location of the "additional articles" (aciislopezB),
which, as a rule, were located on the margins of the pages or were taken out at the end of
manuscripts.
D*E. Woodbin did a great job. Five copies recognized by him as the most reliable copies were
carefully studied, and 11 more were involved in identifying discrepancies. Contacting texts from
equal manuscripts, he tried to correct errors and eliminate contradictions. ”To eliminate
inconsistency in the presentation of the material, D.Z. Woodbin tried to re-divide the text into
paragraphs. His publication D.E. Woodbin prefaced with a lengthy introduction, outlining his
view of the origin of the surviving lists of the treatise and proposing a new
The first volume of the publication prepared by him appeared in 1915>.
20 work on the last volume was completed only in 1942.
A heated discussion ensued around the publication. Both the publishing techniques of D. E.
Woodbin* and the history of the text were discussed.
0 that the publication of D.E. Woodbin leaves much to be desired” was first stated in 1941 by E.
Kantorovich in the monograph: “Marriage tonianokmé problems”. E. Kantorovich had big
claims to prof. D.E. Woodbin; "He had to correct gross errors in accordance with the recognized
principles of textual criticism, as was done by other publishers, other classical and middle
21 century texts. "But D.3. Woodbin was true to his method.
In his discussions about the shortcomings of E's edition, Kantorovich often went to extremes. So,
on the one hand, he believed that the fault of your mistakes and omissions in the lists of the
treatise that have survived to this day lies with the scribes "and not with G. Brighton. On the
other hand, the scientist argued" that G. Bracton can hardly be considered the author at all.
treatise. According to him, most likely he was the royal judge William Rely or someone from his
entourage. Part of the conclusions of e. Kantorovich was somewhat confused and insufficiently
argued. Not surprisingly, his book, in turn, drew criticism from a number of scholars.
Nevertheless, the work of E. Kantorovich was an important milestone in the study of the works
of G. Bracton and is still indispensable in the study of almost the entire range of issues related to
his legacy, starting with the history of the creation of the treatise and ending with its application
in legislative and judicial practice.
Already in the postwar years e. Kantorovich undertook a fruitful attempt to analyze medieval
ideas about royal power and its sacred nature. In a monograph devoted to the "pseudo-eyed
theology" of the Middle Ages, he relied on both theological writings and political and legal
treatises. At the same time, the historian paid considerable attention to: devoted to the treatise of
G. Bracton ”devoting a special section to him in the fourth chapter of the books,
A notable contribution to the development of controversial issues related to
23 by the works of Mr. Bracton, contributed articles by F. Schultz. Vudbzhn, pointing out that *
Kantorovich underestimated the difficulty of the task facing prof. D.E. Woodbinsh. According to
F. Schulz, the latter did the right thing by following the path of forming a consolidated text of the
monument.
At the same time, F, Schultz agrees. that D.E. Woodbin did not, and could not, achieve his goal
of recreating the original treatise. available d.e. Woodbin’s manuscripts were corrupted after G.
Brighton’s death by an unknown editor, and the “philological” methods used by the scientist
were clearly insufficient to eliminate errors. was reworked and corrupted by an inconspicuous
editor, F. Schulz believes that modern researchers can approach the original text of G. Brighton
only based on an accurate and detailed study of the legal essence of numerous handwritten
copies of the original. But such a thorough work took time, so it is unfair to reproach Prof. D.E.
Woodbin for the fact that there are some flaws in his publication. The significance of D.E.
Woodbin's publication is enormous, as it opened a new page in the history of studying the
heritage of G. Brighton: "We must be grateful to D.E. Woodbin for what he has achieved, and
winnow his work
24 as a basis for future research".
In many ways supporting F. Schultz, H.G. Richardson admitted that D.E. Woodbin's edition
leaves much to be desired. In particular, D.E. Woodbin paid little attention to the analysis of the
content of the discrepancies found in the misprints of the treatise and those formulas of Roman
law, which G. Bracton widely used.
The controversy surrounding the publication of D. E. Woodbin convinced the need for a reprint
of the treatise. This task was undertaken by Prof. S, Thorne "The first volume of his edition,
published in 1968, opened with a reproduction of the introduction by D. E. Woodbin and the
publication of 1915, and was entirely devoted to the description of the manuscripts of the treatise
and questions of their textual criticism" Introduction D13, Woodbin was commented on by S,
Thorne, who offered his vision of many debatable problems.
Joining the opinion that Dr.Z. Eudbin did not cope with his task to the end "S, Thorne, however,
believed that: "His achievements are undeniable, and the conclusions of F. Schulz and H. G.
Richardson, in the end, were not so weighty in order to make
26 any corrections in the ed. woodbine,
S. Thorne argued that the famous novelist, but not an expert in English law - E. Kantorovich
"examined only parts of the treatise with elements of Roman law, which make up less than a
tenth of the source, and did not study articles on civil law. In his work, S. Thorne proceeded from
the fact that the text of the treatise has come down to us mixed, disorderly and was made from
the original list * therefore the correction of textual errors and contradictions is necessary.
Based on new; discovered archival documents, he did a great job of detailed and thorough
comparative analysis of manuscripts. His edition thus represents a fundamental study of the
problems of the origin and textual criticism of the treatise,
At the same time, in 1968, the publication of the source itself began. It took 10 27 years to
publish the subsequent volumes of the treatise.
The undoubted merit of S. Thorne and the team of philologists he headed was the translation of
the treatise "On the Laws and Customs of England" into modern English.
A distinctive feature of the edition of 1968-1977. is the attraction of discrepancies and 40 of
them to date, including those from copies of the treatise not attracted by D.E. Woodbin. All this
testifies to the fact that S'Thorn did a great job of researching manuscripts5 that remained outside
the control of previous publishers. Thus, this edition is the most complete and perfect; therefore,
we use it in the proposed work "
Significantly advanced the study of the works of G. Brighton, the work of RSV, Turner. The
1968 article laid the foundation for
At the 28th stage, which poisoned the initial atap of work on the topic, Following the widely
used in England aoozhva "On the illegal deprivation of the right to own real estate®", which was
described in detail by G. Brighton, who traced its application and development under John
Landless and Henry III, the results of further, more in-depth study of the treatise and the
"Notebook" were summed up by R. W. Turner in the monograph
1986, where the English system of law in the 2nd era was studied in detail by R. Glenvish and G,
Vrakton. Emphasizing that this era was decisive for. strengthening the English legal system”, the
scientist considered the process of formation of the royal corps of yuriots-professionals,
personalities of 49 royal judges were compiled; e number of which included G., Brighton, Based
on archival materials, R.V. Turner discovered new information about G. Brighton and his
teachers - U, Reli and M., Nateshall,
1 in articles 80s-90s. years, first of all, it is necessary to name op 'Mayl's study. The author also
collected rich material testifying to the popularity of the treatise "On the Laws and Customs of
England1!" that shortly after the death of Go Brighton, his treatise lost its practical significance.
The works of O.F. Milsom, J., Hudson, R. Zimmermash.
In his work, S.F. Mshyuom, based both on the sources of the XII century, and on the treatise! 50
laws and. the customs of England" analyzed the process of obtaining a widow's part of the dotva.
J. Hudson in an article on the normak of land law; considered the issues of property relations in
medieval England, many of which were substantiated by G. Brighton in a treatise.
R. Eimmerman's capital monograph is devoted to property obligations, covering the period from
the time of the Norman conquest to the present day. Turning to the history of England XIII R;
Bimmermzn, mainly relies on the treatise "On the Laws and Customs of England",
Of particular interest from the point of view of this topic are also general works on the historian
of English and European law. Thus, in the book by G. J. Berman "The Western Tradition of
Law: The Era of Formation" X appeared in English in 1988, and translated into Russian in 1994,
the development of various branches of law was analyzed, including English royal law, the
norms of which were The researcher rightly emphasizes that in 13th-century England, royal and
canon law complemented each other in such a way that one could speak of them as inseparable
parts of a single legal system, which was also reflected in the treatise "On Laws and customs of
England"
In the GC published in the West in the 80s and translated by us
33 in 1996 the book of the famous Swedish scientist 3.Annesh on history
35 of European law, the main features of "common law" are characterized in comparison with
Roman legislation, and the process of transition of English law from oral to written tradition is
considered on the material of the treatise G. Brighton. It is especially noted that thanks to the
development of legal ideas in the XIII century, "common law" became the basis of the legal
order, which created the conditions for further, more efficient organization of public life in
England.
As for domestic historiography, Russian scientists, when studying the socio-political history of
medieval England, also turned to the historian and legal issues and at the same time actively used
the treatise of Brighton,
One of the first researchers in this area was
S.A. Troshev. In the monogoaphy "Reception of the 36th right in the West" published in 1886,
he made an attempt, quite successful for his time, to compare English law with Roman legal
norms and follow, based on G. Brighton's treatise, the introduction of the Roman legal tradition
to English legal proceedings.
The greatest contribution to the study of the works of G. Brighton in Russian historiography was
made by P.G. Vinogradov. He, as already mentioned, discovered in 1884, in the British Museum,
the manuscript of the "Notebook" 5 but provided its publication to F.V. Matdandu. In 1385 Guo
GU Vinogradov published an article on the treatise "On the Laws and Customs of England", in
which he outlined his
37 nasty things about the history of the creation of the monument ”After the death of F.V.,
Matland, P.G. Vinogradov continued the comparative study of the works of the Bolognese jurist
Atso and GU Brighton. In his course of lectures on the reception of Roman law in Western
Europe, his lexical analysis of the monuments of Roman and English was of particular
importance.
38 lmzhzhoy legislation.
In his long-recognised kyaasssheshshi, he worked on social
39 of the history of England, the scientist proved that the legal theory was not valid, put forward
at the end of the KhPv. R.Gdenvishem and finally formalized in the 13th century by G. Bracton,
responded to the desire of the feudal vnaty to make the villans completely powerless.
He developed the ideas put forward by F.V. Matlandsh and P.G. Vinogradov, first by D.M.
Letrushevsky. and then E.A. Kosshyukiy and their students also paid special
In contrast to the ideas of supporters of the formal legal
40 turns to the sources, D.M. Petrushevokny in his works emphasized that the Villanoc theory
was not a legal abstraction, but was actively pursued by the royal courts in practice. Later, in his
studies on the agrarian history of England, ХШв =., E.A., Koominokiy similarly argued that the
legal theory set forth by G. Bracton, which relied on the authority and power of the state, on the
practice of royal courts and on the doctrine of scholarly experts on Roman law (was serious
attempt at legal
41 substantiation of the process of "enslavement of villans" .
M.A. Varg in "A Study in the History of English Feudalism in KI-XIIIbb." not only focused on
the reasons that led to G. Brighton's persistent appeal to the Roman legal tradition, but also
revealed the socio-political content of the principle of "excluding villanism" (exceptio
villenagii). which included "in a position of non-intervention" of the state to all royal legislation
in the relationship between villanache and feudal lords and was widely used in royal courts
during the reign of Henry III.
E. V. Gutnova in her fundamental work "The Emergence
43 of the English Parliament" it was shown that the principle of "exclusion of vshshanotva"
meant in general the exclusion of villans and the scope of "common law" .Brighton, the
researcher showed., That in the ХШв. the fire of the villans on their lands remained a rare
occurrence, since the feudal lords were interested in providing their economy with working force
and receiving
4.1
L 'zh rent. E.V. Gutnova translated into Russian several sections from the "Notebook" by G.
Eshkton and the treatise "On laws and
45 customs of England", Several incidents and "Notebook" were given in her monograph on the
class struggle and social
46 consciousness of the medieval peasantry.
Unfortunately, there are practically no special studies on the legacy of G. Brighton in the latest
Russian historiography. But, on the other hand, in recent years, a keen interest in the problem of
the sacralization of monarchical power in the countries of Europe and the consideration of the
role of legislation in the life of society from this angle has revived. The methodology of such
studies, even if they do not directly concern England XIII and G. Brighton, and the results
obtained are, of course, directly related to the subject of this dissertation.
A vivid example of research of this kind is provided by the materials of the "Round Table" held
in 1993 by the Association of Medievalists and Historians of the Early Modern Age on the topic:
"The Charisma of Royal Power; Myth and Reality" ”The topic aroused great interest. The reports
presented at the "Round Table" and their discussions traced the evolution of the charisma of
royalty in Western Europe in the period from the early Middle Ages to the era of the
Reformation and Reli-4 / wrathful wars.
A kind of continuation of this discussion was the work of A, L,
Rogachevsky, dedicated to the study of the rise of German cities
48 zhan to the royal power of Germany XIII-XYI! her.
Basis of the "Salic law" on succession to the throne
49 is investigated in the article YL1 „ Malinin published in 1996. As shown by a scientist who
took shape b K! c, in France, "Your Salic" formed the basis of a new concept of royal power, in
which the legal idea triumphed over the marginal notions of succession to the throne. As a result,
in Fraction XYb. it was law that ensured the transfer of power and established its limits.
В связи с небранной темой определенный интерес представляют также исследования С,В,
Кондратьева о прешгативах кооо
50 левокой власти ХШв. Характеризуя представления английских юристов той поры о
двойственном характере королевской власти,, анализируя на основе "Институций"
Эд,Кока полномочия и прерогативы короля, С,В, Кондратьев обращается и к более ранним
юршш
51 чеоким памятникам, в том числе ж к трактату ю Брайтона,
Историографический обзор, думаем, вполне подтверждает мысль о том, что изучение
трудов Г.Брактона неразрывно связано с разработкой ключевых проблем
социально-экономической, политической, социокультурной историк Англии XIII в,, и
остается насущной задачей медиевистики. Сколь ни обширна и богата литература
вопроса, многие ив "Брактонианских проблем" (если воспользоваться формулой 3.
Канторовича) все еще далеки от удовлетворительного
- 21 решения. В полной мере это относится и к проблемам, связанным с определением
места трактата в социально - политической жизни XIII в., с анализом взглядов Г. Брайтона
на королевскую власть, на роль государственного правосудия в судебной системе страны,
В ряде случаев, к сожалению, приходится довольствоваться рабочими гипотезами.
Зачастую трактат "О законах и обычаях Англии" и "Записная тетрадь" используются
историками по отдельности и лишь в иллюстративных целях.
Таким образом » изучение наследия Г.Брактона» предоставляющего большие
возможности для понимания процесса формирования политической и правовой мысли
Англии ХШв. ив настоящее время как показывает обвор современной историографии,
является актуальным.
Цель я задачи диссертационного исследования определили его структуру. Диссертация
состоит ив введения, трех глав и заключения» К работе приложен список использованных
источников и литературы.
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Conclusion of the dissertation on the topic "General history
(of the corresponding period)", Svyatovets, Olga
Alexandrovna
- 135 - CONCLUSION So, "Notebook" and the treatise "On the Laws and Customs of England"
are unique sources on the history of socio-political and legal thought of medieval England, which
are an important component of the formation of the English judicial system and statehood in the
XIII century "
In our opinion, it can be justifiably asserted that the work of compiling these monuments did not
belong to anyone and royal judges} namely, an outstanding figure in English jurisprudence of the
13th century, and a prominent political thinker - Henry Brighton.
G. Brakton began fixing the legal norms by compiling a "Notebook", thereby doing a great job of
classifying and commenting on litigation and summarizing the experience of several generations
of English judges. The incidents collected in this source gave him the basic material for a treatise
in which he, resorting to the Roman legal tradition, systematized and codified the most important
norms of the English "common law".
The mere fact that about 40 copies of the treatise have survived to this day is convincing
evidence of its popularity in English society. The appearance at the end of the 13th - beginning
of the 11th centuries is also noteworthy. such legal compendiums as Fleet and Britton, which
was based on the same treatise On the Laws and Customs of England. Our comparison of
Bracton's text with Flat and Britten, and melte a brief overview of the fate of the "Great sum of
English law" (as Bracton's work is sometimes called) over the following centuries, convinces us
that the treatise for a long time remained the main systematic gadfly of the provisions of the
"general right"., was widely used
- 136 medieval lawyers and in some cases was used in the judicial practice of the CUP and the
XVIII centuries,
R. Brighton's work is notable primarily for the fact that when creating it, he persistently searched
for the optimal system and the king-general, which, if the king retained priority in the field of
legislation, would protect society from royal arbitrariness. For this purpose, Henry Brighton
developed a policy - legal theory, Based on traditional ideas that law embodies the order
established by Vogue, based on Roman vaco-nodation, he fully accepted the highest authority of
the English "common law", but at the same time expressed his belief in the need for innovation
in it, which was not typical of medieval jurists, who held ancient laws and customs as the most
perfect.
Представления 1\ Брайтона о взаимоотношениях короля и закона, прерогативах
королевской власти и пределах королевской юрисдикции опирались на идею
божественного происхождения королевской власти и права, Брайтон, провозглашая, что
Англия живет не под властью человека, а под властью Бога и закона, теы не менее
утверждал, что король ~ ©то воплощение права и ни одно его преступление, даже самое
тяжелое не подлежало суду земному.
Но рассуждения Го Брайтона, в которых король выступал в роли верховного судьи, не
являлись, на наш взгляд, показателем того, что он был сторонником неограниченной
королевской власти. Несмотря на то, что английские законы в конечном итоге
утверждались королем, и, как правило отвечали его интересам, толковались и
принимались они о учетом мнения Совета знати» Примечательно ташке и то, что, в
трактате содержатся нормы, сформулированные в Великой Хартии Вольностей, по
которым графы т бароны могли ограничивать волю короля, Брайтон не только
поддерживал участие баронов в делал королевского правосудия, но ж призывал
сдерживать "ошибающегося короля".
Наряду о этим Г. Брайтон стремился найти разумное решение и в разгоревшемся в его
время политическом конфликте. Для него приоритетными были, прежде всего, интересы
государства,, а не борющихся группировок, включая короля, В источнике упоминаются
практически вое провивии и статуты времени правления Генрика III* Как иевеотно,
король отказался полностью принять документы 50-60 гг, Тем не менее, остается фактом,
что изложенные в них и наиболее приемлемые о точки зрения Генри Брайтона правовые
нормы, нашли свое обоснование в трактате.
Отсюда вытекает представление Г, Брайтона о двойственном положении короля по
отношению к важшу. Но, на наш взгляд, когда составитель трактата говорит о подчинении
короля закону, речь идет о естественном и божественном праве., что подтверждается
королевским статусом наместника Бога на земле, а положение "над законом" подразумевает позитивное право.
Обострившаяся внутриполитическая обстановка, усложнение со-цазльно-экономических
процессов в стране , требовали быстрого и четкого вынесения судебных решений, что
было невозможно без нормальной работы королевских судов, судов местной юрисдикции
и особенно, укрепления связей о более развитой и систематизированной церковной
юрисдикцией,
Согласно трактату и "Записной тетради", королевские суды, осуществлявшие свою
деятельность на основе норм "писаного права" и являвшиеся органами исполнения воли
короля на местах, пользовались высоким авторитетом, В ряде случаев королевские суды
отреммжоъ расширить сбои шжошчнй, но суд я по статьям
- 138 трактата и "Записной тетради";; им это не всегда удавалось, Тем не менее, в
результате выездных сессий Суда не только укрепилась связь центрального
судебно-административного аппарата о провинцией, но и усилился контроль королевской
влшти ва местным управлением.
The desire of the royal power to arrogate to itself the right to represent church offices, the
existence in England of such a legal instrument as the order of prohibition - all this asserted the
supremacy of the king over ecclesiastical justice, I despite the fact5 that the church managed to
consolidate its jurisdiction over a number of legal areas, in treatise D, Wrakton, an attempt was
made to present a purely royal interpretation of the judiciary, essentially leaving no room for a
completely independent jurisdiction of the church and its ability to somehow limit royal justice.
It was the competition and interaction of rival royal and ecclesiastical jurisdictions that gave each
of them not only the basis for systematizing law, but also was a powerful incentive to strengthen
the position of royal justice in the political and legal life of society, and the development of royal
justice during the reign of Henry III is evidenced by the expansion of the practice of conducting
litigation on a claim basis and with the help of possessory asoiz. Henry Bracton's treatise
presents a whole system of claim formulas with their detailed commentary. Rather strict rules for
initiating and conducting litigation based on a statement of claim made it possible to legally
protect the rights of landowners from unfair court decisions and, to some extent, from unlawful
royal actions. The treatise contains a number of examples of "common law" courts discussing
orders and demands
- 139 cue to the king to change the illegal sentence,
Brighton in his treatise records the desire of the royal power to take a direct part not only in the
solution of criminal cases, but in all litigation. In particular, this was quite clearly poisoned in the
current legislation, which tried to protect the rights of the widow about the positions of the
"written law". In lawsuits related to the widow's property, which in the 13th century began to
belong to her, the desire of the king to establish control over the procedure for assigning the
widow's part of the inheritance and receiving certain income from it is clearly represented.
The king was interested in creating new lawsuits that would provide him with an expansion of
judicial power, so the description of the claim formulas became longer and longer. Their great
diversity led to the need for classification. Comparing the treatise on the Notebook, we compiled
a table of all the main claim formulas presented in the works of G, Brighton,
Thus, with good reason it can be argued that in most cases the treatise of G. Vrakton quite
accurately poisoned the judicial practice of medieval England, generalizing it and theoretically
comprehending it. The legacy of Henry Wrakton made it possible to study one of the important
stages in the history of England, when, under the conditions of the establishment of a
class-representative state system, the necessary prerequisites were created not only for the
emergence of a single legislative "code" of the state, but also for a written presentation of legal
theory that corresponded to the maximum possible objective the realities of his time.
In a rather complicated internal political situation, the inherently compromise doctrine of Henry
Wrakton reflected the view of YuryPTZ and POLMTLKZ, a promising position in relation to
both the royal power and the barons. That is why the ideas and thoughts set forth in the treatise
"On the Laws and Customs of Acklln" were used in state and legal circles for quite a long time,
and the treatise itself became one of the most important pastimes in the legal and political
thought of the 13th century.
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