Bracton: Thorne Edition: English. Volume 2, Page 401

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Volume 2, Page 401

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[001] because deed and instigation are so linked together that they cannot be separated.

If the appellor retracts on the field.

[003] [If the appellor retracts on the field let him be sent to gaol, and both he and the
[004] pledges for prosecuting he found at the time the duel was waged will be in mercy,¹
[005] because he did not deraign as he had bound himself to do. If he is vanquished on the
[006] field it will be otherwise, since it is no fault of his that he makes no deraignment,
[007] and though he is to be sent to gaol² he sometimes is pardoned any amercement
[008] because he fights on behalf of the peace.]³

When all the principals have been vanquished, let proceedings then be taken against accessories.

[010] ⁴Let him declare against the first in the words set out above [and let the first reply]
[011] by repudiating in words of denial, as above, everything alleged against him by the
[012] appellor, that is, that on such a day and year and hour and at such a place he did not
[013] accompany such a one who has been appealed and convicted as principal, nor did he
[014] hold or bind such a one, or use any force against him, while the aforesaid man slew
[015] him or gave him the wounds from which he died, and the like, so help him God etc.

The oath to be taken by the appellor.

[017] Let the appellor swear to the contrary using words in the affirmative.⁵ And on the
[018] same day the principal is convicted (unless the man appealed as accessory has an
[019] exception by which he may avoid the appeal)⁶ let the duel be waged, if the accessory
[020] is then present. But let another day be given for fighting the duel on which let
[021] them both come armed.⁷ The duel having been fought between them, if the appellee
[022] is vanquished let him suffer the penalty his principal suffered, for the common
[023] saying is that he who orders kills, as does he who maliciously holds while the
[024] victim is being killed. They are considered equals as far as punishment is concerned.
[025] [If the appellor is vanquished or retracts his appeal the accessory is discharged.]⁸
[026] If he defends himself lawfully, as aforesaid,⁹ the other accessories, provided the
[027] appellor is not vanquished, are not discharged, for the deeds may be different,
[028] the persons different, and the causes different, and consequently the appeals
[029] different, as where one is the instigator, another holds, a third strikes a blow,
[030] a fourth furnishes thieves with access, and a fifth lies in watch to see that no one
[031] comes upon them. In all these cases each is held responsible for his own deed.
[032] ¹⁰<If the principals have been convicted, an accessory may be appealed

Notes

1. Infra 407

2. Supra 386

3. Supra 283; B.N.B., no. 1460: ‘quia pugnavit pro rege’

4. Om: ‘Cum autem . . . praecepto,’ a connective; it is erroneous: supra 392, 393, 400, infra 413

5. Supra 399

6. ‘nisi forte . . . possit appellum,’ from lines 23-4

7. Infra 432

8. ‘Si appellans victus fuerit vel se retraxerit ille de forcia per hoc liberatur,’ from the rubric

9. Supra 400

10. Supra i, 389