Bracton: Thorne Edition: English. Volume 2, Page 387

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Volume 2, Page 387

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[001] [If one lies a night in a house alone with another who is slain, or if two or more do
[002] so and have not raised the hue nor received a wound in defending themselves from
[003] the thieves or others who did the slaying, and are unable to show who slew the man,
[004] whether one of themselves or others, they cannot deny responsibility for the death,
[005] as [in the roll] of Michaelmas term in the ninth and the beginning of the tenth
[006] years of king Henry in the county of Kent, [the case] of Adam de la Burgh.]¹
[007] ²if one has received a known man or a stranger into his house, as a guest or for some
[008] other reason, who was seen to go in alive and well and never seen afterwards except
[009] as a corpse; the owner of the house, if he was there at the time, or others of his household
[010] who were then present, will not escape capital punishment, unless they are
[011] acquitted by the country, if the justices come to the conclusion that the truth ought
[012] to be investigated by the country. ³[But since the country cannot learn⁴ the truth of
[013] so secret an act, how will he who has put himself on the country be acquitted? In
[014] truth it gives an adequate acquittal since it does not expressly condemn, as may be
[015] said of a charter which acquits since it does not burden specifically.]⁵

No one is to take a stranger into his house except in broad daylight.

[017] It was because of this suspicion that it was established that no one receive a stranger
[018] into his house or permit him to depart except in broad daylight.⁶ ⁷as where a
[019] lord and his man lie in one house and the lord is found slain, the man who neither
[020] raised a cry nor received a wound nor offered resistance in his [lord's] defence
[021] (and the same may be said of a stranger) will be held responsible and can hardly
[022] escape danger by an inquest of the country, because of so strong a presumption as
[023] to so secret a deed, [A deed may be so secret that suit is void as⁸ improperly
[024] made, because when the deed was committed cannot be known,⁹ as where poison
[025] has been administered, nevertheless it cannot be challenged.] and thus will not
[026] have the choice of putting himself on the country or of defending himself by his
[027] body but must defend himself by his body, because the country can know nothing
[028] of the deed except by presumption and hearsay, which serves neither as proof for
[029] the appellor nor as grounds of acquittal for the appellee, [unless one says, as above,
[030] that he is adequately discharged since he is not condemned.] [But the election will
[031] of necessity be allowed him because of the improper result which would [otherwise]
[032] follow, for were he always bound to defend himself by his body anyone might
[033] appeal another of such deed by a hired champion, which is not to be tolerated.]

Notes

1. C.R.R., xii, no. 1172, side-lined on roll; not in B.N.B.

2. Continued from 386, n. 16; om: ‘Eodem mode ... ut,’ a connective

4. scire,’ all MSS.

3-5. ‘Sed cum patria ... non onerat,’ from lines 21-24; supra 62, 66, 112, 119

6. Cal. Cl. Rolls 1251-53, 493: ‘Quod nullus extraneus hospitetur nisi de die, et de die claro recedat.’; Richardson in Traditio, vi, 79; supra 330

7. Continued from 386, n. 12; om: ‘et haec etiam ... maxime esse poterit,’ a connective

8. ‘ut’

9. Infra 394