Bracton: Thorne Edition: English. Volume 2, Page 379

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Volume 2, Page 379

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[001] Now we must turn to homicide committed in secret, in no one's presence, to no
[002] one's knowledge, and in no one's sight or hearing, which is called murder. First
[003] we must see what murder is, why it was devised, and how one may be discharged
[004] [payment] of a murder-fine. Murder is the secret slaying of man by the hand of
[005] man, [whether those slain are known or strangers,] [committed wickedly,]¹ ²done
[006] out of the sight of and unknown to all except the slayer alone and his accomplices
[007] and abettors so that no public hue and cry immediately pursues them,³ and [where]
[008] who the slayer is cannot be ascertained.⁴ The word ‘secret’ is used because the slayer
[009] is unknown; ‘of man,’⁵ so as to include male and female and exclude brute animals
[010] lacking reason. I say ‘of strangers and men who are known’ because whether the
[011] slain man⁶ is known or unknown he is called a Frenchman, unless englishry, that is,
[012] that he is an Englishman, is presented before the justices [and] proved by his
[013] kinsmen.⁷

The reason for devising murder-fines.

[015] ⁸The reason for the devising of murder-fines was this: in the days of Cnut, king
[016] of the Danes, when at the prayer of the English barons he sent his army back to
[017] Denmark after he had conquered and pacified England, the barons of England
[018] offered themselves as sureties to the said King Cnut that, whatever the force the king
[019] kept with him in England they would have firm peace in all things so that, if anyone
[020] of the English should slay any of the men whom the king kept with him and if that
[021] man could not make his defence against the charge by the judgment of God, that is,
[022] by water or iron, justice would be done upon him. If he fled away and could not be
[023] arrrested they would pay on his behalf sixty-six marks, to be collected in the vill
[024] where he was slain, because the inhabitants did not produce the slayer. And if the
[025] marks could not be collected in that vill because of its poverty, they would be
[026] collected in the hundred for deposit in the king's treasury.⁹

What is called murder.

[028] ¹⁰He will always be reputed a Frenchman unless it can be shown that he is English,
[029] englishry having been properly presented before the justices.¹¹ [How it ought to be
[030] presented will be more fully explained below in its proper place.]¹² The words ‘by
[031] the hand of man’ are used to distinguish it from the case of those slain or devoured
[032] by beasts and animals which lack reason; such persons cannot be said to be murdered
[033] feloniously since animals which lack reason cannot be said to commit injuria or
[034] felony.¹³ Or the words may be used to distinguish it from the case of those who
[035] have died by misadventure, as those drowned, crushed and the like; by misadventure
[036] where there is no concealed felony, as will be explained below.¹⁴
[037]

Notes

1. Infra 380

2-3. Glanvill, xiv, 3; supra 341

4. Reading: et non scitur quis ille fuerit qui occidit. Occulta dicitur’; supra 341

5. Om: ‘extraneorum et notorum’

6. ‘interfectus,’ as infra line 28, but ‘interfector,’ OA, OB, LA, MG, CM, OC, Y, CE

7. Repeated below: the next section an insertion

8-9. Leg. Edw. Confess., 16, 16.1, 15, 2-5; Liebermann, i, 642, 641; Hamil in Speculum, xii, 286 ff.

10. Om: ‘Et dicitur ... vel extraneus’

11. ‘Englescheria rite coram ... praesentata’

12. Infra 381 f

13. Supra 340, infra 384, 424

14. Infra 380; Speculum, xii, 294