Bracton: Thorne Edition: English. Volume 2, Page 337

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Volume 2, Page 337

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[001] though he, the appellee, came into the presence of the appellor and stood among
[002] several others, he neither recognised him nor was able to distinguish him from them.¹
[003] He may also pray that many other things be allowed him, a variance as to the day
[004] and the hour and many others, as will be explained below [in the portion] on
[005] appeals.² The appellor must answer each of these exceptions in order, [and if] so,
[006] let the appeal remain. If [it proceeds] to judgment, we must then see who may and
[007] ought to judge. It is clear that it cannot be the king himself in his own suit, for he
[008] would thus be both actor and judge in a cause involving life and members and
[009] disherison, though this would not be so if the suit were another's. Nor can it be a
[010] justice, since in judicial matters he represents the person of the king whose deputy
[011] he is. Who then shall judge when the king himself must be the actor at the trial?³
[012] Without prejudice to any better opinion, it is submitted that the court and the peers
[013] shall render judgment, lest wrongful deeds remain unpunished, particularly where
[014] life and members or disherison are at stake; [But in this connexion we must distinguish
[015] the kind of deed for which the appeal is brought, that is, whether there is
[016] a felony or a trespass, for every trespass ought not to be termed felony though the
[017] converse is true.⁴ If it is adjudged felony the words of the appeal, the order and process,
[018] are then to be examined in order to ascertain whether the duel may be joined
[019] between appellor and appellee; even if⁵ the appellee be prepared to wage the duel
[020] against the accuser's appeal without making answer an examination ought to come
[021] first, as was said above,⁶ and if the duel has been unlawfully waged without examination
[022] it may be de-waged by examination.⁷ If the deed is such that it ought to be
[023] designated trespass rather than felony the duel will remain.]⁸ [if it is a trespass],
[024] whether [done] to him or his wife or children, for the king may be wronged in the
[025] persons of his family,⁹ we must see whether it¹⁰ is grievous or slight. If it is a slight
[026] trespass which calls for a pecuniary penalty only, that is, a light pecuniary penalty,
[027] the justices may well sit without the peers. But if it is serious enough to involve
[028] ransom, the next thing to disherison, the peers ought there to be associated with the
[029] justices, lest the king, in person or through his justices without the peers, be plaintiff
[030] and judge.

Of the crime of forgery and its species.

[032] There is another division of the crime of lese-majesty which, since it involves the
[033] supreme penalty and leads to sentence of death, is reckoned among the more
[034] serious crimes, that is, the crime of forgery,¹¹ which, in one of its aspects, touches
[035] the crown of the lord king,¹² as where one is accused and convicted of forging the
[036] king's seal, authenticating charters and writs with it, or of drawing charters and
[037] writs and attaching false seals to them; if he is found guilty, or seised [of the charter]

Notes

1. Ibid.: ‘Petit etiam sibi allocari quod idem Ricardus non cognovit eum, cum bis requisitus esset si videret Vitalem Engaing in curia domini regis coram eodem domino rege’; infra 431

2. Infra 395, 397

3. ‘cum ipse ... iudicio,’ from lines 13-14

4. Infra 353, 359, 378, 390

5. ‘etiam si,’ as supra 291: ‘et hoc etiam’

6. Supra 291

7. Ibid.

8. This portion belongs supra 336, at n. 5; infra 390, 398, 407

9. Infra 438

10. Om: ‘transgressio illa quae tangit regem’

11. Infra iv, 286

12. Glanvill, xiv, 7