Bracton: Thorne Edition: English. Volume 4, Page 281

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 281

Next

Go to Volume: Page:

[001] seek a remedy after one's case had been lost,¹ that the person suspected be removed
[002] and one not suspect substituted for him, ² since nothing can be more acceptable to
[003] an enemy than if it be given him to pass judgment on one he wishes to injure;³ ⁴it is
[004] a fearful thing to sue under a suspect justice, because it often results in the most unhappy
[005] outcome.⁵ The reason for recusation is one only, suspicion, which arises from
[006] many causes, as where the justice is a kinsman of the demandant [or] tenant,⁶ his
[007] man or dependent, a relative or friend, or enemy, a connexion by marriage, a member
[008] of his household or table companion, or if he is his counselor or narrator, in that case
[009] or another, and the like.⁷

Of the jurisdiction of greater and lesser judges.

[011] ⁸Lastly of the jurisdiction of greater and lesser judges. First of all, note that just
[012] as the lord pope has ordinary jurisdiction over all in spiritual matters, so the king
[013] has ordinary jurisdiction in his kingdom in temporal matters. They have neither
[014] equals nor superiors.⁹ Under them there are those who have jurisdiction¹⁰ in many
[015] matters, but not as fully as the pope or king. Those who are their inferiors can [not]
[016] be their equals in jurisdiction, for many reasons, [for] equal will not have jurisdiction
[017] (no more than imperium)¹¹ over equal, much less over a superior. Just as one may
[018] have jurisdiction delegated by the pope in spiritual matters, so one may have it from
[019] the king in temporal matters, as the greater or lesser justices,¹² or those who are quasi-justices,
[020] namely, those to whom the king has granted liberties which belong to his
[021] crown and dignity.¹³ And though in spiritual matters as in temporal, [each] ought
[022] to decide whether jurisdiction is his or not,¹⁴ in order to ascertain whether the person
[023] summoned ought to appear or not, nevertheless, lest¹⁵ the ecclesiastical judge, putting
[024] his sickle into another's harvest,¹⁶ presume against the crown and royal dignity,
[025] as with respect to lay fee or chattels, when he receives a prohibition¹⁷ from the king
[026] he ought always to stay proceedings, at least until it is settled in the king's court to
[027] whom jurisdiction belongs, for if an ecclesiastical judge could decide whether

Notes

1. C. 2.40.5.1; 3.27.1.pr.; supra iii, 406, iv, 228

2-3. Decretum: C.3, qu.5, ca.15

4-5. Tancred, 146; Richardson, Bracton, 147

6. ‘vel tenentis’

7. Br. has taken his instances, with a few alterations, from Tancred, 148-9 (Richardson, 149), Drogheda, 377-8

8. Supra i, 162 (full collation)

9. Supra ii, 305

10. ‘iurisdictionem’

11. Supra ii, 33

12. Supra ii, 307

13. Supra ii, 167

14. Supra 63, 250

15. ‘ne’

16. Decretum: C.6, qu.3, ca.1: ‘messam alienam falcem mittere’; infra 298

17. ‘prohibitionem’