Bracton: Thorne Edition: English. Volume 2, Page 306

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Volume 2, Page 306

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[001] the prince acknowledge himself bound by the laws.¹ Nothing is more fitting for a
[002] sovereign than to live by the laws,² nor is there any greater sovereignty than to
[003] govern according to law,³ and he ought properly to yield to the law what the law
[004] has bestowed upon him,⁴ for the law makes him king.⁵ And since it is not only⁶
[005] necessary that the king be armed with weapons and laws but [with wisdom],⁷ let
[006] the king learn wisdom that⁸ he may maintain justice, and God will grant wisdom
[007] to him, ⁹and when he has found it he will be blessed if he holds to it,²² for there is
[008] honour and glory in the speech of the wise and the tongue of the imprudent is its
[009] own overthrow;¹⁰ ¹³the government of the wise man is stable, and the wise king will
[010] judge his people, but if he lacks wisdom he will destroy them,¹⁴ for from a corrupt
[011] head corruption descends to the members, and if understanding and virtue do not
[012] flourish in the head it follows that the other members cannot perform their functions.
[013] ¹⁵A king ought not only to be wise but merciful, his justice tempered with wisdom
[014] and mercy. Yet though there is greater safety in having to render a final account for
[015] mercy rather than judgment,¹⁶ it is safest that [a judge's] ¹⁷eyes precede his steps,¹⁸
[016] that judgment not become uncertain through unconsidered discretion nor mercy
[017] debased by indiscriminate application, for mercy is indeed unjust when it is extended
[018] to the incorrigible. ¹⁹Nor does the grace of our august liberality extend to
[019] those who, having been pardoned an earlier offence, take it to be approved by
[020] custom rather than deserving of punishment.²⁰ And when a judge is indulgent to the
[021] unworthy, does he not expose all to the infection of regression?²¹ Let him therefore
[022] be merciful to the unworthy in this way, as always to feel compassion for the man.
[023] And let him not in judgment show mercy to the poor man,²² that is, the mercy of
[024] remission, though to him there ought to be shown, as to all men, the mercy of compassion.
[025] And to whom and in what fashion a judge²³ should be merciful, the merits or
[026] demerits of persons shall instruct him.

Why there are justices and of delegated jurisdiction.

[028] We have spoken in the next [preceding] of ordinary jurisdiction which belongs to
[029] the king.²⁴ Now we must discuss delegated jurisdiction,²⁵ where one having no
[030] authority of his own has authority committed to him by another,²⁶ ²⁷[But] since he
[031] cannot unaided determine all causes [and] jurisdictions, that his labour may be
[032] lessened, the burden being divided²⁸ among many, he must select from his realm
[033] wise and God-fearing men in whom there is the truth of eloquence, who shun avarice
[034] which breeds covetousness, and make of them justices, sheriffs, and other ministers
[035] and officials, to whom there may be referred

Notes

1. C. 1.14.4; Azo, Summa Inst. proe. Azonis, no. 1

2. C. 6.23.3

3. C. 1.14.4; E. Kantorowicz, 104

4. Azo, Summa Cod. 1.14, no. 16; supra 33

5. Supra 33, 110

6. ‘solum,’ as Schulz, 141, 172; Kantorowicz, 44-6

7. Supra 21

8. ‘ut,’ as Fleta, i, ca. 17

9-10. Prov. 3:13; 3:18

13-14. Eccl. 10:1; 10:3; Policraticus, v. 11 (567d), v. 7 (554b)

15. New paragraph

16. C. 26, qu. 7, c. 12: ‘nonne melius est propter misericordiam rationem dare quam propter crudelitatem?’

17-18. Prov. 4:25

19-20. C. 1.4.3.4

21. C. 23, qu. 4, c. 33: ‘Nonne cum uni indulget indigno, ad prolapsionis contagium provocat universos?’

22. Ibid., c. 34; Exod. 23:3

23. Not the king, as Schulz, 172

24. Supra 304, no. 12

25. Note that Br. writes ‘de iurisdictione delegata,’ not ‘de iudicibus delegatis,’ as Tancred: Richardson in Traditio vi, 67; Bracton, 114-5

26. Continued infra 307, at n. 17

27. Continued from 304, line 30, ‘astrictus’; om: ‘ille qui delegat’; ‘ut si ... non sufficiat’

28. ‘partito,’ CM, OC, V, and Fleta, i, ca. 17