Bracton: Thorne Edition: English. Volume 2, Page 19

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Volume 2, Page 19

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INTRODUCTION

The needs of a king.

[003] ¹To rule well a king requires two things, arms and laws, that by them both times
[004] of war and of peace may rightly be ordered. For each stands in need of the other,
[005] that the achievement of arms be conserved [by the laws], the laws themselves
[006] preserved by the support of arms.² If arms fail against hostile and unsubdued
[007] enemies, then will the realm be without defence; if laws fail, justice will be
[008] extirpated; nor will there be any man to render just judgment.³

[England alone uses within her boundaries unwritten law and custom].

[010] Though in almost all lands use is made of the leges and the jus scriptum, England
[011] alone uses unwritten law and custom. There law derives from nothing written [but]
[012] from what usage has approved.⁴ Nevertheless, ⁵it will not be absurd to call English
[013] laws leges, though they are unwritten, since whatever has been rightly decided and
[014] approved with the counsel and consent of the magnates and the general agreement
[015] of the res publica,⁶ the authority of the king or prince having first been added
[016] thereto,⁷ has the force of law.⁸ ⁹England has as well many local customs, varying
[017] from place to place, for the English have many things by custom which they do
[018] not have by law, as in the various counties, cities, boroughs and vills, where it will
[019] always be necessary to learn what the custom of the place is and how those who
[020] allege it use it.

If an unwise and unlearned man ascends the judgment seat.

[022] ¹⁰Since these laws and customs are often misapplied by the unwise and unlearned
[023] who ascend the judgment seat before they have learned the laws¹¹ and stand amid
[024] doubts and the confusion of opinions, and frequently subverted by the greater
[025] [judges] who decide cases according to their own will rather than by the authority of
[026] the laws,¹² I, Henry de Bracton, to instruct the lesser judges,¹³ if no one else, have
[027] turned my mind to the ancient judgments of just men,¹⁴ examining diligently, not
[028] without working long into the night watches,¹⁵ their decisions, consilia and responsa,
[029] and have collected whatever I found therein worthy of note into a summa,
[030] putting it in the form of titles and paragraphs,¹⁶ without prejudice to any better
[031] system, by the aid of writing to be preserved to posterity forever.

Notes

1. Br. and Azo, 3, 6, 11, 13

1-2. Inst. proe.; Glanvill, prol.; Azo, Summa Inst. proe., no. 1: ‘tam militaris res legibus est in tuto collocata, quam ipsae leges armorum praesidio servatae sunt, ut C. de Iustiniano cod. confirmando,’ where the same words appear

3. Infra 23. 25

4. Inst. 1.2.9: infra 21

5-8. Glanvill, prol.; cf. Schulz in E.H.R., lx, 171; infra 305. Supplemented infra 21, nn. 1-2

6. D. 1.3.1; Azo, Summa Cod., 1.14. no. 1; infra 21

7. Br. uses ‘praecedente’ (infra 305 ‘praestante’) for Glanvill's ‘accedente,’ but the idea is the same: infra 85, line 1; 223, iv, 213: ‘praededucat’; cf. McIlwain, Constitutionalism, Ancient and Modern, 71-2; Hoyt in E.H.R., lxxi, 359 n.; Lewis in Speculum, xxxix, 250

9. Br. and Azo, 3, 13

10. Br. and Azo, 5, 10, 13, 16

11. Infra 21, n. 13, 307

12. Supplemented infra 21, nn. 3-5

13. Infra iv, 99 also iii, 321

14. Azo, Summa Inst. proe Just., no. 5: ‘erexit itaque Justinianus animum suum ad immensa volumina veteris prudentiae,’ for the last words of which Br. substitutes ‘ad vetera iudicia iustorum’; Fesefeldt, 88

15. Inst. proe.; Azo, Summa Inst. proe. Just., no. 2 ‘cum summis vigiliis’

16. Cf. Richardson in Traditio vi, 64; Tancred (89) contrasts the form of a ‘summa’ with an arrangement ‘sub paragraphis’