Bracton: Thorne Edition: English. Volume 2, Page 390

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Volume 2, Page 390

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How those appealed ought to make their defence.

[002] ‘And B. (that is, the one appealed as principal) comes and denies all felony and
[003] breach of the king's peace and whatsoever is against the king's peace, and the
[004] death, and everything put forward against him (the whole, word for word exactly
[005] as it is propounded against him).’ He will then have the choice of putting himself
[006] on the country or of defending himself by his body, by saying, if he chooses the
[007] country, ‘and that he is not guilty thereof he puts himself on the country for good
[008] and ill,’ or that ‘he is ready to defend himself against him by his body as the king's
[009] court decides.’ If by his body, the justice ought first to examine the nature of the
[010] deed (unless it is self-evident and criminal) which is¹ the cause of the appeal, in
[011] order to decide whether the duel may be joined between them. For it may be so
[012] trivial that no appeal will lie, as where it is a slight trespass or a simple injuria.² He
[013] ought also to examine the words by which the appeal was³ made, whether in the
[014] [king's] court or in county courts, and how the appellee has answered the appeal and
[015] how he wished to defend himself, by his body of by the country. ⁴If he simply says
[016] that he wishes to defend himself as the court of the lord king decides, unless he says
[017] more he will be without defence, because it is not for the king's court to show him
[018] how he ought to make his defence. And so if he says, ‘I am ready to make my
[019] defence either by my body or by the country as the king's court decides,’ because
[020] the king's court ought not to compel him to one rather than the other, nor to impose
[021] his form of defence on him in any way, since the choice is his own [and] ⁵it is evident
[022] that he thereby deprives himself of the choice.⁶ ⁷If he is unwilling to adopt either he
[023] will remain undefended and quasi-convicted.⁸ He must therefore adopt one, but
[024] when he has chosen the country it will not be in his power [to choose] which persons,⁹
[025] [but in that of the judge,] though for certain reasons he may refuse certain persons,
[026] [nor] which country, as where he chooses the country¹⁰ of his birth and has committed
[027] the wrong elsewhere, outside it, for one may be law-abiding in the district
[028] of his birth and the opposite elsewhere.

Where he wishes to avoid the duel on the ground that he is over age.

[030] Though he has chosen to make his defence by his body he may avoid the duel on
[031] the ground that he is over age,

Notes

1. ‘quae sit’

2. Supra 290, 337, infra 407, 408, 409

3. ‘fuit’

4. New paragraph; om: ‘Ut’

5-6. ‘videtur . . . electionem,’ from line 21

7-8. ‘Si autem . . . remanebit,’ from 391 lines 11-12

9. ‘quas personas’

10. ‘ut si elegerit patriam’