Bracton: Thorne Edition: English. Volume 2, Page 391

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 391

Next

Go to Volume: Page:

[001] as will be explained below [in the portion] on exceptions.¹ But when he has once
[002] avoided it, if he then regrets his decision and wishes to return to a defence by his
[003] body he will not be heard, for no change is here permitted.²

Where all the elements of the appeal are in order let the duel be waged at once.

[005] When he has elected to make his defence by his body and all the elements necessary
[006] for an appeal are in order, let the duel be waged at once.³ ⁴If he has been appealed
[007] by several of one deed and one wound and successfully makes his defence against
[008] one, he will depart quit against all,⁵ also as regards the king's suit, because he
[009] thereby proves his innocence against all, as though he had put himself on the
[010] country and it had exonerated him completely.⁶ ⁷If the first appellor dies after the
[011] duel has been waged but before it has been fought, or, through no fault of his
[012] own becomes unfit to fight, or dies, he who survives shall deraign.⁸ On the day
[013] of the duel, that on which the first appellor should have come, let the second come
[014] armed, and on that same day let the duel be fought. And so as to the others if the
[015] second dies.⁹ But if the first appellor refuses to prosecute and defaults,¹⁰ or being
[016] present retracts his appeal,¹¹ it will be otherwise.

If all the appellors die before the duel is fought.

[018] If all the appellors die before the duel has been fought, or all become unfit to fight,
[019] the appeal will fall, but though the appellee is free of the appeal he is not free of
[020] the felony, and therefore the king may sue for the breach of his peace if he wishes.¹²
[021] If the appellee dies before the duel has been fought the appeal thus falls and the
[022] felony will never be convicted. If the appellee is vanquished by one of the several
[023] appellors that will suffice as a victory for the others, because what is a single deed and
[024] a single felony may be convicted by one appellor. ¹³When the first appellor has thus
[025] appealed one of one deed, [if he appeals] another, or several others, as accessories or
[026] as counsellors or instigators, those so appealed are replegiable at once,¹⁴ [before the
[027] duel is waged the principal appellee is not to be released on finding pledges unless
[028] as a matter of grace, and then by bail, that is, body for body,] until the principal
[029] is convicted or has successfully made his defence,¹⁵ and after the duel has been
[030] fought, if the appellor

Notes

1. Infra 403

2. Supra 386

3. Infra 399-400, 406-7

4. New paragraph

5. Supra 388, infra 398, 400

6. ‘Si autem . . . remanebit,’ supra 390, nn. 7-8

7. Om: rubric and ‘Item . . . una plaga,’ a connective

8. Supra 388

9. ‘si de eo’ for ‘si de aliis’

10. Cf. supra 388, infra 398

11. Infra 398

12. Infra 402

13. New paragraph

14. ‘appellati de forcia sunt replegiabiles,’ from line 35

15. Supra 361