Bracton: Thorne Edition: English. Volume 2, Page 386

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Volume 2, Page 386

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[001] of the crime alleged against him, or of defending himself by his body. If he elects
[002] the country he cannot then repent and revert to defending himself by his body
[003] but the matter will be determined by the country.¹ Nor may he act conversely.
[004] If he enters upon his defence by his body, raising no exception, let the duel be
[005] waged between them at once if everything is in proper order, especially the principal
[006] matters on which the appeal is founded and which lead to joinder of the duel. If
[007] the appellee has omitted to make sure of these the justice ought to investigate them
[008] ex officio.

That in waging the duel the justice must investigate everything with care.

[010] First of all, the deed and the cause of the appeal.² If deed and cause are sufficient
[011] he ought then to examine the suit, whether it has been properly made and that
[012] there is no variance, as where the appellor has said one thing in the county court
[013] and before the coroners and now says another before the justices, for here no
[014] variance is allowed, as will be explained more fully below.³ If everything that
[015] leads to the duel is in proper order let the appellee then give a gage for defending
[016] and the appellor for deraigning.⁴

The wager of the duel: if the appellee or the appellor is vanquished.

[018] If the appellee is vanquished he will suffer capital punishment with disherison and
[019] the loss of all his goods, as for a felony of any kind.⁵ If the appellor is vanquished
[020] let him be committed to gaol⁶ to be punished as a false accuser (but he will lose⁷
[021] neither life nor members, though according to the laws he would be liable to the
[022] talionic penalty if he had failed in his proof)⁸ and let the appellee withdraw quit of
[023] the appeal,⁹ unless the justices cause him to be held because of some other suspicion
[024] or charge,¹⁰ which they sometimes do if there is reason for it, as happened [in
[025] the case] of Robert Brodegha in the county of Berkshire before Martin of Pateshull.¹¹
[026] That the appellee may defend himself by his body [or by the country] when
[027] he is appealed is true unless some strong presumption of guilt lies against him,¹²

Occasionally neither proof by the duel nor the country is necessary: where an over-whelming presumption lies against the appellee

[029] In some cases neither by his body nor the country, where a strong presumption
[030] lies against the appellee¹³ which does not admit of proof to the contrary, proof by
[031] which he may repudiate or deny the death and the felony, as when he is arrested
[032] over the body of the dead man with his knife dripping blood; he cannot deny the
[033] death nor is further proof necessary.¹⁴ This is an ancient constitution.¹⁵ Other proof
[034] is not necessary¹⁶

Notes

1. Infra 391

2. Infra 390

3. Infra 395, 396

4. Infra 393, 406

5. Infra 400

6. Infra 401

7. ‘amittet,’ as Fleta, i, ca. 31

8. Tancred, 157: ‘et accusator se obligare tenetur ad poenam talionis ... si non probaverit quod obiicit poenam quam intulerit pati debet, ut C.2, qu. 3, per totum.’

9. Infra 400

10. ‘retto’

11. Not in B.N.B.; Berks. 1225. General Assises and Gaol Delivery: J.I. 1/36, m. 4. I owe this to Mr.C.A.F.Meekings

12. Continued at 387, n. 7

13. Reading: ‘In casu neque per corpus neque per patriam, ubi praesumptio violenta facit contra appellatum’

14. C.R.R. xi, no. 1908 (Trin. 8 Hen. III): ‘inventus fuit super mortem seisitus cultello under percussus fuit et captus fugiendo ... Et Ivo non potest hoc dedicere. Ideo suspendatur.’; infra 404

15. Assise of Clarendon, ca. 12; Assise of Northampton, ca. 3; Gloucester Crown Pleas, 145, n. 174

16. Continued 387, n. 2