Bracton: Thorne Edition: English. Volume 2, Page 305

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 305

Next

Go to Volume: Page:

For what purpose a king is created; of ordinary jurisdiction.

[002] ¹To this end is a king made and chosen, that he do justice to all men [that the Lord
[003] may dwell in him, and he by His judgments may separate]² and sustain and uphold
[004] what he has rightly adjudged, for if there were no one to do justice peace might
[005] easily be driven away and it would be to no purpose to establish laws (and do justice)
[006] were there no one to enforce them. The king, since he is the vicar of God on earth,
[007] must distinguish jus from injuria,³ equity from iniquity,⁴ that all his subjects may
[008] live uprightly, none injure another, and by a just award each be restored to that
[009] which is his own.⁵ He must surpass in power all those subjected to him, [He ought
[010] to have no peer, much less a superior,⁶ especially in the doing of justice,⁷ that it may
[011] truly be said of him, ‘Great is our lord and great is his virtue etc.,’⁸ though in suing
[012] for justice he ought not to rank above the lowliest in his kingdom.] ⁹nevertheless,
[013] since the heart of a king ought to be in the hand of God,¹⁰ let him, that he be not
[014] unbridled, put on the bridle of temperance and the reins of moderation, lest being
[015] unbridled, he be drawn toward injustice. For the king, since he is the minister and
[016] vicar of God on earth, can do nothing save what he can do de jure,¹¹ [despite the
[017] statement that the will of the prince has the force of law,¹² because there follows at
[018] the end of the lex the words ‘since by the lex regia, which was made with respect to
[019] his sovereignty’; nor is that anything rashly put forward of his own will,¹³ but what
[020] has been rightly decided with the counsel of his magnates, deliberation and consultation
[021] having been had thereon, the king giving it auctoritas.] His power is that of jus,
[022] not injuria¹⁴ [and since it is he from whom jus proceeds, ¹⁵from the source whence
[023] jus takes its origin no instance of injuria ought to arise,¹⁶ and also, what one is
[024] bound by virtue of his office to forbid to others, he ought not to do himself.]¹⁷ ¹⁸as
[025] vicar and minister of God on earth, for that power only¹⁹ is from God, [the power
[026] of injuria however, is from the devil, not from God, and the king will be the minister
[027] of him whose work he performs,] whose work he performs.²⁰ Therefore as long as he
[028] does justice he is the vicar of the Eternal King, but the devil's minister when he
[029] deviates into injustice, ²¹For he is called rex not from reigning but from ruling well,
[030] since he is a king as long as he rules well²² but a tyrant when he oppresses by violent
[031] domination the people entrusted to his care.²³ Let him, therefore, temper his power
[032] by law, which is the bridle of power,²⁴ that he may live according to the laws, for²⁵
[033] the law of mankind has decreed that his own laws bind the lawgiver,²⁶ and elsewhere
[034] in the same source, it is a saying worthy of the majesty of a ruler that

Notes

1. Schulz in E.H.R., lx, 137-43; Richardson in Traditio, vi, 76 ff. E. Kantorowicz, 143 ff.; Lewis in Speculum xxxix, 256 ff.

2. Belongs infra n. 3; ‘ipse per’

3. Supra n. 2

4. D. 1.1.1.1; ‘aequum,’ as D., as infra iii, 52

5. Inst. 1.1.3; D. 1.1.10.1; supra 166

6. Glanvill, vii, 10; supra 33, 157, infra 253, iv, 159, 281

7. Supra 33

8. Psl. 146:5

9. Om: ‘et licet ... praecellat,’ a connective

10. Prov. 21:1; C. 1.1.8.3; supra 20

11. Cf. E. Kantorowicz, 155

12. Inst. 1.2.6; D. 1.4.1. pr.; supra 19. Cf. Schulz, 171, Richardson, 76, but 77 n. 11, E. Kantorowicz, 152

13. Inst. 1.2.6, gl. v. ‘placuit,’ ‘non omnis vox iudicis est sententia, et sic nec omnis vox principis est lex.’

14. Infra iii, 184: ‘Est enim ius et eius contrarium iniuria’

15-16. C. 8.4.6. pr.; cf. E. Kantorowicz, 155

17. D. 8.5.15: ‘quod alium facientem prohibere ex officio necesse habuit, id ipse committere non debuit’; ‘quod,’ ‘ipse,’ as D; infra iv, 244

18. Om: ‘Exercere . . . iuris,’ a connective

19. ‘sola’ for solius’

20. Cf. Schulz, 140, 171; Richardson, Bracton, 29

21-22. Leges Angl. 11, 1 B 7:Liebermann, i. 637

23. Policraticus, viii, 17(777d)

24. Supra 33, 110

25. ‘quia’, as Schulz, 171

26. D. 2.2; 2.2.1; Schulz, 141, 166