Harvard Law School Library
Bracton Online -- English
Previous   Volume 2, Page 302  Next    

Go to Volume:      Page:    



[001] that she ought not to have it because she was never joined in lawful wedlock to
 [002] the man in whose name she claims dower, no one but the king could order the
 [003] bishop to make an investigation. The plaint concerning a fine made in the court of
 [004] the lord king and not observed also belongs to the king in the first instance.8 The
 [005] reason is because no one may interpret a fine except the king himself, in whose
 [006] court fines are made, for he who establishes interprets.9 Pleas of this sort are infinite.
 [007] Many pleas are pleaded directly in the king's court of necessity, because others are
 [008] powerless to hear them, since no baron, sheriff or other person may take cognisance
 [009] of free tenements without the warrant or precept of the lord king, nor can they compel
 [010] anyone to take an oath with respect to his free tenement without such warrant.10
 [011] Nor is a tenant bound to answer,11 How pleas are transferred from court to court of
 [012] necessity, [or] through translation by pone, or because of the favour of the privileged,
 [013] as the Templars and others,12 will be explained more fully below.13

Where and before what persons [civil] actions are to be instituted and proved.


 [015] 14We must also see where and before what persons actions are to be instituted and
 [016] proved. This must be done in a judicial proceeding.

What a judicial proceeding is [and how civil actions are to be instituted].


 [018] 15We must see, therefore, what a judicial proceeding is. It is clear that no matter
 [019] what the action 16it is the threefold act of three persons, the judge, the actor
 [020] and the reus.17 It is clear that though18 the word ‘persons’ may be taken in a
 [021] larger sense, [unless] there are at least two parties between whom the dispute
 [022] arises and at least a third who acts as judge, there will be no judicial proceeding,
 [023] for they are the principal parties to such a proceeding and without them it cannot
 [024] exist. The judge must employ the truth of judgment,19 [and truth in judgment consists
 [025] in three things, in the indifferent and impartial acceptance of the parties, as
 [026] it is written in the first book of Deuteronomy, ‘Hear them and judge righteously
 [027] between them, whether he be one of your country or a stranger. Ye shall not respect
 [028] persons in judgment, but shall hear the small as well as the great; neither shall ye
 [029] respect any man's person, for the judgment is God's.’20 And in the same book,
 [030] chapter sixteen, ‘Thou shalt not respect persons nor take gifts, for gifts blind [the
 [031] eyes of the wise],’21 as below [in the portion] on justices.22 [Secondly], it consists in
 [032] diligent investigation, for it behoves a judge to seek out everything.23 Perceiving
 [033] this Job says, in twenty-nine, ‘The cause which

Notes

9. Supra 109; Drogheda, 132, 342, 355

10. Prov. Westm., ca. 18

11. ‘Nec tenens ... respondere,’ from line 9; the portion infra 317, n. 7 to 318, n. 8 belongs here; Glanvill, xii, 25: ‘sciendum quod secundum consuetudinem regni nemo tenetur respondere in curia domini sui de aliquo libero tenemento sine praecepto domini regis vel eius capitalis iustitiae’

12. Infra iv, 60, 280

13. Infra iv, 58

14. Br. and Azo, 195

15. Br. and Azo, 195

16-17. Azo, Summa Cod. 3.1, no. 3; Drogheda, 180; infra iv, 340

18. Reading: ‘Sciendum quod licet large’

19. ‘vero iudicii uti debet veritate,’ as infra 303; continued 304, n. 3

20. 1: 16, 17

21. 16-19

22. Infra 307

23. C. 30, qu. 5, c. 11: ‘Iudicantem oportet cuncta rimari’; Drogheda, 71, 106; Policraticus v, 6 (551c)

Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College