Bracton: Thorne Edition: English. Volume 2, Page 300

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Volume 2, Page 300

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[001] homicide, or does it accidentally, as above.¹ Depending upon this his deed will be
[002] either felony or misadventure. There is pecuniary as well as corporal punishment,
[003] but every corporal punishment, though of the slightest, is greater than any
[004] pecuniary one.²

Where civil actions are to be determined.

[006] ³We have indicated above in whose court it is that criminal actions must be
[007] determined, whether in the county or outside it, in the king's court or elsewhere.
[008] Now we must consider where civil actions in rem or in personam are to be determined.
[009] Those in rem, as rei vindicationes by writ of right, must be determined in
[010] the court of the lords or others of whom the demandant claims to hold, if the
[011] lord is willing to do him full right, and is able and⁴ has the requisite knowledge to
[012] do so. If he is unwilling or unable or without the requisite knowledge, then, after
[013] the tenant has proved that his lord's court has failed to do him right,⁵ the plea
[014] must be transferred to the county court, that the sheriff may do him right,⁶ and
[015] in the same way it may be transferred from the county court to the great court,
[016] for specific cause [or] if the king so desires, and there be determined.⁷ But this
[017] ought not be done against the will of lords, as once used to be done by praecipe,⁸
[018] except for the causes mentioned above, or if the lord voluntarily remits his court
[019] to the king. On this matter there is more below, [in the portion] on civil actions in
[020] rem on the property by writ of right.⁹ A plea by writ of right, if it has not been
[021] removed to the great court as was said above, may be determined in the county
[022] court and before the sheriff. ¹⁰So may the question of status, as the action de
[023] nativo habendo, unless the person claimed as a villein by excepting alleges that he is
[024] free and that he will prove his freedom before the justices of the lord king on their
[025] arrival. He will then have his peace until they come, or, if it pleases the lord king,
[026] the proof and trial may be transferred to the great court.¹¹ In the county court
[027] and before the sheriff many pleas may be pleaded in which the sheriff is constituted
[028] judge by the writ justicies,¹² as in writs of services and customs, of debts, and
[029] innumerable other pleas. Also the plea de vetito namii in which the sheriff is both
[030] judge and sheriff. How such pleas are determined will be explained below.¹³ ¹⁴Why
[031] cannot the sheriff and the county court determine, as the king's court may, the
[032] question of a man's freedom, as it may that of his villeinage, since proof of liberty
[033] is incidental, so to speak, to the plea of villeinage? I know of no other reason
[034] except that this is a concession made in favour of liberty, a priceless thing,¹⁵ not
[035] to be entrusted to the discretion of the unlearned and

Notes

1. Supra 289-90, 298, 299, infra 341, 438

2. Cf. Kantorowicz, 68

3. Br. and Azo, 191-95

4. ‘et’

5. Glanvill i, 4; xii, 1; infra iv, 51, 52

6. Glanvill, xii, 9: ‘Ad vicecomitem autem provinciarum pertinent praedicta placita de recto ubi curiae dominorum probantur de recto deficisse.’

7. Glanvill, xii, 1: ‘Tunc enim mediante comitatu possunt a comitatu ex diversis causis quae superius expositae sunt ad capitalem curiam domini regis transferri’; infra iv, 58 ff.

8. Magna Carta (1215) ca. 34; (1225) ca. 24; Clanchy in E.H.R., lxxix, 542, 547

9. Infra iv, 51-2

10-11. Glanvill v, 1: ‘Si vero liberum hominem se esse dixerit is qui petitur et super hoc demonstrando securum fecerit vicecomitem, tunc remanebit loquela illa in comitatu ... [et] ponatur loquela ipsa coram iustitiis domini regis in curia domini regis et interim pacem habebit is qui libertatem petit.’

12. Glanvill, xii, 9; infra 411, 437

13. Infra 439

14. New paragraph

15. D. 50.17.106