Bracton: Thorne Edition: English. Volume 2, Page 402

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Volume 2, Page 402

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[001] by a brother or other kinsman of the slain man by these words: ‘A. appeals B. for
[002] that the said B. consented to and aided in the death of such a one in that he who
[003] was convicted as principal went forth to do that deed from the house of the said
[004] appellee and returned thither after the deed. And that A. was present in the county
[005] court when the aforesaid B. threatened his same brother, so that the king's peace
[006] was sought by him in the said county court and later given him in the king's court.
[007] And that [B.] acted thus wickedly [A.] offers etc.’ By words such as these¹ it was
[008] decided that battle lay between them, as [in the roll] of Easter term in the ninth
[009] year of king Henry in the county of Essex, [the case] of Hugh of Goldingham and
[010] Hugh of Cantilupe concerning the death of John of Goldingham.>²

If the first appellor against the principal dies or defaults.

[012] If he who has first appealed the principal dies or defaults, or being present retracts
[013] his appeal, or though he wishes to prosecute the appellee avoids the appeal by an
[014] exception, the felony may nonetheless exist, and if it is not convicted wicked
[015] deeds will thus remain unpunished,³ which ought not to be, [016] from lines 17-19; infra 404">[It may still exist
[017] because, though the appellee has avoided the appeal, he has not as yet disproved it,
[018] and the presumption raised by the appeal will always stand until the contrary is
[019] proved.] and since a wrong is done not only to him who is slain but to the lord
[020] king whose peace is broken, therefore, lest evil deeds remain unpunished,⁶

The king may proceed ex officio

[022] let the king proceed to an inquest ex officio for the preservation of his peace because
[023] of the presumption raised by the appeal,⁷ as though the appellee had not been
[024] appealed but lawfully indicted. ⁸That an accusation and suit for breach of his
[025] peace belongs to the king is evident, and that the appellee is bound to answer not
[026] only the appellor but the lord king may be seen by the words of the appeal, where it
[027] is said ‘such a one appeals such a one for that wickedly and feloniously and against
[028] the king's peace etc.,’ from which it may clearly be seen that the appellee is bound
[029] to answer not only the appellor but the lord king. When the appellee offers to defend
[030] himself by his body he will not be heard, because the king does not fight, nor has he
[031] any champion other than the country, and if one were to say that he ought to fight,
[032] the duel would fall, since he has made no suit, nor may he speak of his own sight and
[033] hearing.⁹ Recourse must thus of necessity be had to the country, [if the accused
[034] refuses it he is without defence and thus, so to speak, convicted,] to which he is
[035] forced because of the lack of other proof, as where a woman

Notes

1. ‘haec,’ all MSS.

2. B.N.B., no. 943, an earlier stage; no roll extant; C.R.R., ix, 244 (Mich. 4-5): ‘exiverunt de domo sua et de manupastu suo ad feloniam illam faciendam et ad domum suam post factum illud redierunt.’

3. D. 9.2.51.2: ‘impunita maleficia’; X. 5.39.5: ‘ne crimina remaneant impunita’

6. ‘ne remaneant maleficia impunita,’ infra 427

7. Infra 407

8. New paragraph

9. Supra 397