Bracton: Thorne Edition: English. Volume 2, Page 433

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Volume 2, Page 433

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[001] between the victorious appellee and a second approver appealing him de novo.]
[002] If he cannot find pledges let him abjure the realm or remain in prison forever.

If he does not undertake the defence in his own person but excepts and prays judgment whether he ought to answer a confessed thief.

[004] When he does not undertake the defence in his own person, by his body, he may
[005] except against the approver and ask that this be allowed on his behalf, whether he
[006] ought to answer a confessed thief, one who¹ ought to have no right to speak
[007] against a law-abiding man, since he himself is a law-abiding man and within the
[008] assise of the lord king etc. and in frankpledge or has a lord who avows him.² Then
[009] as follows:

Of the appellee's defence.

[011] ‘And B. comes and denies confederacy, theft and everything (as above)³ as against
[012] one who is a confessed thief, he himself being a law-abiding man and in frankpledge
[013] and within the king's assise or having a lord who avows him.’ If this is proved by
[014] the country the approver-appellor will be condemned and the appellee released.⁴
[015] But if the appellee says simply that he denies everything as against a confessed
[016] thief and puts himself on the country with respect to the theft⁵ and is found suspect
[017] by the country, then, since appellor and appellee are equals in guilt, let the duel be
[018] waged between them at once. And so if the appellee, when asked whether he is in
[019] frankpledge and within the king's assise, or if there is a lord who avows him, [answers
[020] in the negative, so that] there is nothing to be said on his behalf, let the duel be
[021] waged at once, since there is nothing on his side to put forward.⁶ And so if the appellee
[022] has at another time been accused of a crime,⁷ or been indicted by the knights and
[023] townships⁸ and there are law-worthy men present who testify thereto,⁹ [or] been
[024] appealed at another time by another approver; because he has been so held suspect
[025] let the duel be waged. If the approver vanquishes the first appellee, let the others
[026] all be dealt with in the same way.¹⁰

If the approver has done what he promised let the agreement with him be kept.

[028] When the approver has done what he promised let the agreement with him be
[029] kept, that he have his life and members, but he cannot remain within the realm,
[030] even if he finds pledges. If the approver is vanquished before he completes his duels,
[031] or dies an accidental or natural death, let the others he has appealed but not
[032] convicted remain under pledges to stand trial should anyone wish to proceed
[033] against them, because of the suspicion raised by the approver's appeal.¹¹ If they
[034] cannot find pledges let them abjure the realm. If those appealed have fled because¹²
[035] of the appeal and wish to return after the approver's death, since they are under
[036] grave suspicion because of the appeal and the flight let them be arrested on their
[037] return, nor are

Notes

1. ‘qui’

2. Supra 429

3. Supra 431

4. Supra 429

5. ‘latrocinio’ for ‘fidelitate,’ as supra 429

6. Supra 429, n. 8

7. Supra 432

8. Supra 432, infra 435

9. Supra 432, n. 5

10. ‘et eodem modo’; supra 432

11. Supra 432

12. ‘propter’ for ‘per,’ as supra 403