Chapter II: Preface

The Regal Power should not merely be decorated with Arms to restrain Rebels and Nations making head against it and its realm, but ought likewise to be adorned with Laws for the peaceful governing of its Subjects and its People.[28] With such felicity may our Most Illustrious King conduct himself, in the periods both of Peace and of War, by the force of his right hand, crushing the insolence of the violent and intractable, and, with the sceptre of Equity, moderating his Justice towards the humble and obedient, that as he may be always victorious in subduing his Enemies, so may he on all occasions shew himself impartially just in the government of his Subjects. But how gracefully—how vigorously—how skilfully, in counteracting the malice of his Foes, our Most Excellent King has, in the season of hostility, conducted his Arms, is manifest to all: since his fame has now spread over the whole World, and his splendid actions reached even the confines of the Globe. How justly—how discreetly—and how mercifully—he, who loves Peace and is the Author of it, has conducted himself towards his subjects in the time of Peace, is evident, since the Court of his Highness is regulated with so strict a regard to Equity, that none of the Judges have so hardened a front, or so rash a presumption, as to dare to deviate, however slightly, from the path of Justice, or to utter a sentence, in any measure contrary to the truth. For there, indeed, the power of his adversary oppresses not the poor Man, nor does either the favor or credit of another’s Friends, drive any person from the seat of Judgment. Since each decision is governed by the Laws of the Realm, and by those Customs which, founded on reason in their introduction, have for a long time prevailed; and, what is still more laudable, our King disdains not to avail himself of the advice of such men (although his subjects) whom, in gravity of manners, in skill in the Law and Customs of the Realm, in the superiority of their wisdom and Eloquence, he knows to surpass others, and whom he has found by experience most prompt, as far as consistent with reason, in the administration of Justice, by determining Causes and ending suits, acting now with more severity, and now with more lenity, as they see most expedient.[29] For the English Laws, although not written, may as it should seem, and that without any absurdity, be termed Laws, (since this itself is a Law—that which pleases the Prince has the force of Law[30]) I mean, those Laws which it is evident were promulgated by the advice of the Nobles and the authority of the Prince, concerning doubts to be settled in their Assembly. For, if from the mere want of writing only, they should not be considered as Laws, then, unquestionably, writing would seem to confer more authority upon Laws themselves, than either the Equity of the persons constituting, or the reason of those framing, them. But, to reduce in every instance the Laws and Constitutions of the Realm into writing, would be, in our times, absolutely impossible, as well on account of the ignorance of writers, as of the confused multiplicity of the Laws. But, there are some, which, as they more generally occur in Court, and are more frequently used, it appears to me not presumptuous to put into writing, but rather very useful to most persons, and highly necessary to assist the memory. A certain portion of those I therefore intend to reduce into writing, purposely making use of a vulgar style, and of words occurring in Court, in order to instruct those who are less accustomed to this kind of vulgarity. In proof of which, I have distinguished the present work by Books and Chapters.

[Footnote 28: The introductory part of this Preface is in imitation of that of Justinian’s Institutes, and seems strangely to have taken the fancy of the law writers of the age, since Glanville is more or less followed by the Regiam Majestatem, Bracton and Fleta.]

[Footnote 29: “On these last words,” says Lord Littleton, “I would observe, that, as in those days there was no distinct Court of Equity, the Judges of the King’s Court had probably a power of mitigating in some cases the rigour of the Law.” (Hist. of Life Hen. 2. Vol. 3. p. 315. Oct. Ed.) A strong instance in point the Reader will find in L. 7. c. 1. or the present Translation p. 149.]

[Footnote 30: This principle, the very basis of despotism occurs in the Roman code. (Justin. Instit. L. 1. t. 2. s. 6.) It may very justly be questioned, whether it is not here cited ironically. At all events, the passage of our text can scarcely warrant the conclusion the celebrated M. Houard has drawn from it. But the Reader shall have his own words—_Le Texte de notre Auteur prouve qu’après la conquête, les Anglois reçurent, de Guillaume le Bâtard, les mêmes Maximes que nous avions jusques-là suivies, a l’égard du Droit exclusif, que nos Rois avoient toujours exercé, de faire les Loix._ (Traités sur les coutumes Anglo-Normandes par M. Houard. 1. 378.)]