Bracton: Thorne Edition: English. Volume 2, Page 340

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Volume 2, Page 340

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[001] privilege. In the case of the whale, it suffices, according to some, if the king has
[002] the head and the queen the tail.

If the sworn assises of the realm are not observed.

[004] It is also¹ a serious contempt against the king and his crown and dignity if the
[005] assises established and sworn within his kingdom for the common welfare of his
[006] realm are not observed,² as may be seen above among the chapters of the eyre.³
[007] Hence, depending upon the nature of the offences, sometimes bodily punishment
[008] is inflicted on the wrongdoers, that is, the pillory or the ducking-stool with infamy,
[009] in accordance with the statutes of the realm, sometimes a pecuniary penalty,
[010] sometimes abjuration of the vill.⁴

The crime of homicide and the divisions into which it falls.

[012] Among other crimes there is a capital crime [called homicide], which partly concerns
[013] the king, whose peace is broken, and partly the private individual who is
[014] slain wickedly and in breach of the king's peace.⁵ ⁶Hence we must see what it is
[015] and why it is so called, its various kinds, and the punishment imposed. Homicide
[016] is the slaying of man by man. If it is done by an ox, a dog or some thing it will
[017] not properly be termed homicide. For it is called ‘homicide’ from ‘homo’ and
[018] ‘caedo, caedis,’ ‘man-killing,’ so to speak. There are several kinds of homicide,
[019] for one is spiritual, the other corporal,⁷ but of spiritual homicide we have nothing
[020] to say here at the moment. ⁸Corporal homicide is where a man is slain bodily,
[021] and this is committed in two ways: by word or by deed. By word in three ways,
[022] that is, by precept, by counsel, and by denial⁹ or restraint.¹⁰ ¹¹By deed in four
[023] ways, that is, in the administration of justice, of necessity, by chance and by
[024] intention. In the administration of justice, as when a judge or officer kills one
[025] lawfully found guilty. But it is homicide if done¹² out of malice or from pleasure
[026] in the shedding of human blood [and] though the accused is lawfully slain, he who
[027] does the act commits a mortal sin because of his evil purpose. But if it is done from a
[028] love of justice, the judge does not sin in condemning him to death, nor in ordering
[029] an officer to slay him, nor does the officer sin if when sent by the judge he kills
[030] the condemned man. But both sin if they act in this way when proper legal procedures
[031] have not been observed.¹³ ¹⁴Of necessity, and here we must distinguish
[032] whether the necessity was avoidable or not; if avoidable and he could escape without
[033] slaying, he will then be guilty of homicide;¹⁵ if unavoidable, since he kills
[034] without premeditated hatred

Notes

1. ‘etiam’ for ‘enim’

2. Supra 166; infra 437

3. Supra 330

4. Supra 289-290, 298, 299; C.R.R., xiii, no. 2787, xiv, no. 1994; the pillory and the tumbrel are prescribed in Judicium pillorie, St. of the Realm, i, 201; for Br's use of the word ‘statute,’ Richardson and Sayles in L.Q.R., 1, 202

5. Supra 298

6-7. Raymund de Pe±afort, Summa de casibus, ii, 1, 1; Schulz in L.Q.R. lxi, 286; ‘homicidae’ in line 16, all MSS.

8-9. Ibid.

10. ‘tentione,’ CM, MG, LA, OA, OC; ‘contentione,’ CE, MC, Y; ‘tuitione,’ V; ‘tentione’ is correct, cf. Schulz, 291, Richardson, Bracton, 126 n.

11-13. Ibid., ii, 1, 1

12. ‘fit’, as Raymund

14-21. Ibid., ii, 1, 1

15. Infra 408, 438