Bracton: Thorne Edition: English. Volume 2, Page 383

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Volume 2, Page 383

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[001] that he chooses a passage through such a vill, a road which leads toward Scotland
[002] or Ireland or elsewhere.] but to confess the crime is not always necessary, as
[003] where¹ he flies to a church after conviction by the country, or when he has been
[004] taken seised of stolen property, before conviction or after. ²In neither of these cases
[005] may he remain in the church for forty days, as some say, but ought to come forth
[006] immediately upon the arrival of the justices or the coroners and submit³ to the law
[007] of the land. [An interval of forty days used formerly to be given accused persons by
[008] the assise of Clarendon,⁴ who, when they had to depart from the realm could make
[009] stay for forty days and seek assistance from their friends.

That [a wrongdoer] ought not to stay in a church for forty days, and if he attempts to do so what is then to be done.

[011] The constitution was this, that though one had cleared himself by the judgment of
[012] water or fire he should nevertheless abjure the realm, and for so doing he had that
[013] period, which is not to be granted to others.] But what if he refuses to leave it;
[014] may he not be dragged out forcibly by the lay power? No, as is evident, for to do so
[015] would be abominable and impious. It seems therefore that the ordinary of the place,
[016] the archdeacon or his official, dean or parson, may and ought to do so, that is, compel
[017] him to come out,⁵ for sword ought to aid sword,⁶ nor does the execution of the
[018] law constitute a wrong.⁷ Since he has refused to come out unless compelled there is a
[019] strong presumption as to his guilt ⁸<especially if he is a known thief> and to protect
[020] him in the church (at least after he has been there for one night or more)⁹ will be to
[021] act contrary to the peace and the king himself, who ought to safeguard the peace
[022] for the security of all.¹⁰ And if he cannot be compelled to come out he may then keep
[023] himself there for forty days or¹¹ for a year or two, [and] if this is what the wrongdoer
[024] intends what shall then be done, since ordinaries fear the charge of irregularity¹²
[025] and laymen excommunication? I see no remedy except that food be denied him, that
[026] he may come forth voluntarily and seek what he has scornfully refused, and that he
[027] who supplies food to him be deemed the king's enemy and one contemptuous of the
[028] peace. And let the same be done with respect to those who ought to abjure the realm
[029] and be sent into exile.

Of the kinds of exile.

[031] ¹³Exile is of at least three kinds: either exclusion from certain places,¹⁴ as from a
[032] certain region, a city, borough, or vill, for ever or for a time,¹⁵

Notes

1. Om: ‘quia subicere poterit,’; ‘ut si’

2. New sentence

3. ‘subicere’

4. Assize of Northampton, ca. 1; Richardson & Sayles, Governance of mediaeval England, 439-44

5. Supra 369; Wiltshire Crown Pleas, 53

6. Supra 304, infra iv, 327, 375: the portion supra 369, nn. 4-8, belongs here

7. D. 47.10.13.1: ‘iuris enim executio non habet iniuriam’

8. Supra i, 388

9. ‘saltem cum ... vel plus,’ from lines 25-6; ‘vel’ for ‘ad’

10. Supra 166

11. ‘vel’

12. Infra iv, 375

13-14. D. 48.22.5: ‘Exilium triplex est: aut certorum locorum interdictio, aut lata fuga ...’

15. D. 48.22.7.3; supra 298; exile from a vill: B.N.B. no. 1179; a county: C.R.R., xiii, no. 2780; London: no. 2784