The Volokh Conspiracy
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Cancelling Henry de Bracton
If you don't like what Bracton said about abortion, wait till you read what he wrote about hunting foxes.
Justice Alito's draft opinion cited Henry de Bracton, a thirteenth century English jurist.
Henry de Bracton's 13th-century treatise explained that if a person has "struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide." H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879); see also 1 Fleta ch. 20, reprinted in 53 Selden Soc'y 60-61 (H.G. Richardson & G.O Sayles eds. 1953)
You may have thought to yourself, who is Bracton? Think back to 1L. Remember Pierson v. Post (1805), the famous fox case? Both the majority and dissent in that classic case cite Bracton. Judge Tompkins's majority opinion explains that Bracton was in agreement with the Institutes of Justinian. (If you don't know who Justinian is, say Richard Epstein three times and he will appear like Beetlejuice.)
The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and nice question. It is admitted that a fox is an animal feræ naturæ, and that property in such animals is acquired by occupancy only. These admissions narrow the discussion to the simple question of what acts amount to occupancy, applied to acquiring right to wild animals?
If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, lib. 2. tit. 1. s. 13. and Fleta, lib. 3. c. 2. p. 175. adopt the principle, that pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognised by Bracton, lib. 2. c. 1. p. 8.
Judge Livingston's dissent, by contrast, would have decided the case without relying Bracton and other jurists:
Whether a person who, with his own hounds, starts and hunts a fox on waste and uninhabited ground, and is on the point of seizing his prey, acquires such an interest in the animal, as to have a right of action against another, who in view of the huntsman and his dogs in full pursuit, and with knowledge of the chase, shall kill and carry him away?
This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke, Barbeyrac, or Blackstone, all of whom have been cited; they would have had no difficulty in coming to a prompt and correct conclusion.
(For those curious I published an article about Pierson v. Post and the natural law.)
When I read Alito's citation to Bracton, I thought, huh, I wonder if anyone else will think of Pierson v. Post. Dana Milbank had other thoughts. His column yesterday was titled, That 13th-century law treatise Alito uses? Here's what else it says. Milbank goes on to pluck out some choice quotes from Bracton's "De Legibus et Consuetudinibus Angliae."
But Bracton does have a lot to say about monsters, duels, bastardy, concubines, sturgeon "and other royal fish," the "pillory and the ducking-stool," and "a judgment with infamy."
"Where he ought to be executed by the sword he shall not be put to death in any other way, neither by the axe nor the spear, by cudgels nor by the rope," Bracton informs us. "Similarly, those condemned to be burned alive ought not to be injured by floggings, whippings, or tortures, since many perish while under torture."
So true! Let's take a closer look at the 13th-century work from which Alito draws in his cruel and unusual draft — and perhaps glimpse more of the world to which Alito and his fellow conservatives on the court would return us. . . .
But his view of personhood might raise questions in 21st-century America. Bracton categorizes slaves as property: "this slave, this estate, this horse, this garment." And he explains that "those born of unlawful intercourse, as out of adultery and the like, are not reckoned among children." Those children "born of prohibited intercourse … are fit for nothing."
I regret to admit that Henry de Bracton was not woke. He held regressive 13th century views. Society should collectively cancel him. Any citation to Bracton should at least include a Bluebook parenthetical to denote his views about slavery. For that matter, we should also cancel Magna Carta, which was published around that time. Remember Section 10:
If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond.
No one would talk about Jews this way today, right?
Ultimately, I think Bracton looks good here. His works are nearly 800 years old, but we are still citing him! I wonder if anything written in this century will be worth citing in 800 years. No, tweets don't count.