Bracton: Thorne Edition: English. Volume 2, Page 346

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Volume 2, Page 346

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[001] they may only be kept in the prison of him who could judge them in his court.¹
[002] [Only] the lord king has the power of judging in matters of life and members,²
[003] either of taking life or of granting it: [of taking it], as where a felon convicted of
[004] homicide or other felony is punished by the supreme penalty, as by death or dismemberment;³

Of an approver.

[006] of granting life or members, as in the case of an approver, [whose appeal] or plea
[007] no one may hold save the lord king himself, since no other may grant him life or
[008] members.]⁴ [These statements are true unless there be one in the realm who has regalian
[009] potestas in all matters, saving lordship to the lord king as prince, as earls palatine,⁵
[010] or if one has this liberty by grant of the lord king, that is, soke and sake, toll,
[011] team, infangthief and outfangthief, who [may judge in his court one who] is found
[012] seised of stolen goods, as a hand-having and back-bearing thief.⁶ Those who have
[013] such liberties will have their prisons⁷ with respect to such men, because they can
[014] judge them in their courts.]⁸

Prisoners ought not to be disseised of their lands but maintained therefrom.

[016] [But] before conviction persons so imprisoned ought not to be disseised of their lands
[017] nor despoiled of their goods, but [rather], while they are in prison, maintained out
[018] of them, until they have been delivered by judgment or convicted.⁹ If they die in
[019] prison before conviction, let their land remain¹⁰ to their heirs and their chattels
[020] to their kinsmen and friends,¹¹ even though it is obvious that they would have
[021] been convicted had they survived to judgment, in accordance with the statement
[022] that ¹²if a man dies in chains or under sureties while the outcome of his case is
[023] uncertain his goods are not to be confiscated,¹³ nor, ¹⁴though a man has been cast
[024] into prison is it necessary to despoil him of his goods; [that is proper] only after
[025] conviction.¹⁵ But since it is iniquitous that the innocent as well as the guilty be
[026] kept in prison for a long time, therefore, at the doleful plaint of kinsmen and
[027] friends and by grace of the lord king, an inquest is ordinarily made as to whether
[028] such persons imprisoned for homicide were guilty of the said death or not, that is,¹⁶
[029] whether they were appealed because of hate and spite. No one ought to be denied
[030] a writ for an inquest of this kind.¹⁷ The form of the writ is this:

The writ for holding an inquest as to whether they were appealed because of hate and spite.

[032] ‘The king to the sheriff, greeting. We order you to inquire carefully by responsible
[033] and law-worthy men of your county into whether A. of N., arrested and detained

Notes

1. This may reflect what seems to be involved in the ‘malefactores in parcis’ portion of the Provisions of Merton (1236): Richardson in L.Q.R., liv, 391-2, but reading ‘prisonam’ for ‘personam,’ as Powicke, King Henry III and the Lord Edward, i, 150

2. Supra 283, 298, infra 412

3. ‘truncatione,’ all MSS.

4. Infra 430, 434

5. B.N.B., no 1273 (margin)

6. Infra 412, 436

7. ‘prisonas suas’

8. ‘curiis suis’; infra 349, iv, 278

9. Infra 384-5

10. ‘remaneat,’ all MSS.

11. Infra 367

12-13. D. 48.21.3.7: ‘Si qui autem sub incerto causae eventu in vinculis vel sub fideiussoribus decesserint, horum bona non esse confiscanda’

14-15. D. 48.20.2: ‘Non ut quis in carcerem ductus est spoliari eum oportet, sed post condemnationem’; om: ‘si,’ as D; infra 384-5

16. ‘scilicet’

17. Supra 343, n. 4