Bracton: Thorne Edition: English. Volume 2, Page 357

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Volume 2, Page 357

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Where there was no cause.

[002] where he who says that he was robbed, imprisoned and¹ chained never was robbed
[003] etc.² And so though there is a cause it is insufficient, as where men have been
[004] drowned or crushed and the like, dead through misadventure,³

Where the wound was not dangerous.

[006] [or] if the wound of which one is appealed is not dangerous, and does not involve
[007] mayhem.⁴ Nevertheless, because of the presumption raised by flight and the
[008] appellor's suit, the matter must proceed to outlawry, and if suit has been properly
[009] made according to the law of the land the outlawry will be good, despite the fact
[010] that there is no cause or an insufficient cause, because of the flight and the suit.
[011] And so before the justices, without suit of any kind, because of the flight and the
[012] indictment and inquest made before them.

Where one has been outlawed without cause or for an inadequate cause let more grace be shown in inlawing him.

[014] Nevertheless more grace ought to be shown by the prince to persons so outlawed
[015] than to those outlawed for a true cause, as will be explained below.⁵ When one has
[016] been outlawed without true cause, as where the man alleged to be slain is produced
[017] alive, such outlawry is not to be pronounced void when the king shows grace to
[018] the outlaw, since it has been properly made according to the law of the land.

An outlawry may be pronounced void and a royal writ issued thereon; an outlawry may be declared void for many reasons.

[020] [But] under proper circumstances an outlawry may sometimes be pronounced void
[021] though there is a causa, and⁶ if it is true, not presumptive, as where it has been
[022] promulgated contrary to the law of the land,⁷ which may happen in many ways,⁸
[023] [When it is pronounced void, since promulgated contrary to the law of the land,
[024] the outlaw ought to be restored of right and not of grace.⁹ It ought not then to
[025] be stated in the royal letters that the king has remitted or pardoned the said
[026] outlawry, which is void, because what does not exist he cannot pardon, but he may
[027] announce in counties, cities, boroughs, vills and other public places that the said
[028] outlawry is void.¹⁰ There is then no need for the outlaw to have the king's writ of
[029] peace,¹¹ unless he desires it out of excessive caution, and when he has been restored
[030] he ought to be restored to all his property, as¹² he may be without prejudice to
[031] anyone, since an outlawry done contrary to the law of the land ought to be undone
[032] and is not binding.] [An outlawry promulgated according to the law of the land is
[033] binding, though there is no cause or an inadequate cause, and thus it may be remitted
[034] or pardoned, [but]

Notes

1. ‘et’

2. Infra 370-71

3. Infra 369, 375, 378

4. Infra 359, 375, 378

5. Infra, 369, 373

6. ‘et’

7. Infra 372, 373, 375

8. Continued infra 358, n. 2

9. Infra 373, 375

10. Infra 369, 373, 375; see the revocation of the outlawry against Hubert de Burgh, Gilbert Basset and the others in Cal. Cl. Rolls 1231-34, 567 (1234): ‘utlageria promulgata ... nulla est et quod pro nulla habetur, eo quod injuste et contra legem terre in eos fuit promulgata ... et ideo tibi precipimus quod per totum comitatum tuum et per totam balliam tuam sine dilatione clamari facias quod utlagatio illa nulla est et quod illam habemus pro nulla’

11. Ibid.

12. ‘ut’