Bracton: Thorne Edition: English. Volume 2, Page 361

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Volume 2, Page 361

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[001] no essoin for an appellee is admissible at the fourth county court, nor ought one
[002] wishing to mainprise him to a later county court be heard,¹ unless it be by mandate
[003] of the lord king, which would be arbitrary rather than just.]

The accessory is not to be exacted until the principal is convicted.

[005] ²[The accessory is not to be exacted until the principal is convicted, since if he [the
[006] principal] were present, he [the accessory] would not be bound to answer before such
[007] conviction,³ [and because] no presumption militates against him. That is why presence
[008] excuses him though⁴ flight would establish a presumption.] ⁵but he is to be
[009] released on finding pledges,⁶ as he ought to be if both were present. Where the principal
[010] is irreplegiable the accessory may be released on finding pledges or bail⁷ until
[011] the principal has successfully made his defence or failed to do so, because where
[012] there is a principal there may sometimes be an accessory, but there can never be an
[013] accessory without a principal,⁸ because where the principal thing does not exist
[014] things consequent upon it ought not be considered, as may be said of instructions,
[015] conspiracy and counsel,⁹ [which] [though they may exist even without an act and
[016] are sometimes punished] [are punished] if an act follows, not if there is none,¹⁰
[017] in accordance with the saying ‘what harm was there in the attempt when the wrongful
[018] act produced no effect?’¹¹ Nor ought instructions, conspiracy and counsel to be
[019] prejudicial unless an act follows.¹²

When both are present and the principal has been convicted, how proceedings are to be taken against the accessory.

[021] When both are present and the principal has been convicted, the accessory, though
[022] present, [whether present or absent,]¹³ is not to be convicted on that account,
[023] but let him plead¹⁴ his cause and make his defence, since he may have his independent
[024] defences and there may be a principal without an accessory. How each ought
[025] to make his defence will be explained more fully below [in the portion] on appeals.¹⁵

What an outlaw forfeits by outlawry.

[027] When one has thus been outlawed, properly and according to the law of the land,
[028] we must see what he forfeits by the outlawry, when having been summoned for
[029] the fourth time he has failed to appear. It is clear that he first forfeits the country
[030] and the realm and is made an exile, such as the English call an ‘outlaw;’¹⁶ in
[031] ancient times he used to be called by another name, that is, ‘friendless man,’¹⁷
[032] from which it is apparent that he forfeits his friends. Hence if anyone wittingly
[033] feeds him after his outlawry and expulsion,¹⁸ or harbours him or communicates
[034] with him in some way or hides or keeps¹⁹ him, he ought to receive the same
[035] punishment as the outlaw,

Notes

1. Supra 354, 360, infra 421

2. Om: Cum autem ... praedictum est,’ redactor's introductory phrase: erroneous

3. Supra 360, infra 392

4. ‘licet’ for ‘et’

5. Continued from 360, n. 4

6. Supra 345, infra 391

7. ‘ballium,’ as infra 391

8. Infra 392

9. ‘consilio,’ as line 18

10. Cf. supra 334, 342

11. D. 2.2.1.2: ‘quid enim offuit conatus cum iniuria nullum habuerit effectum?’

12. Infra 392, iii, 42

13. ‘sive praesens sive absens,’ from line 21

14. ‘agat’

15. Infra 389, 392

16. Inst. Cnuti, 13.2: Liebermann i, 317: ‘Et qui exulem (quem Angli vocant utlaga) paverit post expulsionem’

17. Ibid. 15a: Liebermann, i, 319

18. Ibid. 13.2: supra n. 16

19. Reading: ‘detinuerit,’ as Inst. Cnuti, 15a, for the repetitive ‘receptaverit’