Bracton: Thorne Edition: English. Volume 2, Page 403

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Volume 2, Page 403

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[001] sues an appeal on the death of her husband; she is not bound to fight the duel
[002] because of her sex and therefore the appellee is compelled to defend himself by the
[003] country. The same is true, that the appeal falls because of the feminine sex, in an
[004] appeal of rape.¹

One is protected from an appeal on account of mayhem.

[006] Similarly one has of necessity to make his defence by the country because of the
[007] physical infirmity of the appellor, that is, because of mayhem.² Also because of age,
[008] as where the appellor³ is beyond the age limit, that is, sixty years of age; [where
[009] the appellee is beyond the age limit] he there has the choice of defending himself
[010] by his body or by the country ⁴<as [in the roll] of the last eyre of Martin of Pateshull
[011] in the county of Lincoln in the tenth year of king Henry, among the pleas of the
[012] crown, [the case] of Gilbert son of Archard and Alan Swade, who was beyond the
[013] age limit.>⁵ Thus it is clear that one is bound to make his defence by the country
[014] because of the royal dignity and the antecedent presumption [raised by the
[015] appeal], because of the appellor's sex, because of mayhem, or because of the
[016] appellor's age. ⁶But when the king, to preserve his peace, brings suit against an
[017] appellee who is present and he is found guilty by the inquest on which he has put
[018] himself, voluntarily or under compulsion, we must see what punishment he ought
[019] to suffer, since there are some who say that it is a pecuniary penalty, others that
[020] it is capital punishment,

Where a woman is ravished by force.

[022] as where a woman ravished by force has lost her virginity and when she fails in
[023] her appeal the appellee [indicted at the king's suit]⁷ puts himself on the country,
[024] by which he is found guilty; he will be condemned as though the appeal has
[025] proceeded, as [in the roll] of Michaelmas term in the sixth and the beginning of
[026] the seventh years of king Henry.⁸

Of those indicated by popular rumour [and] suspicion.

[028] We have spoken above⁹ of the accuser who appears and prosecutes and makes his
[029] appeal and of the king's suit when the appeal falls, We must now speak of those
[030] indicted by popular rumour, [From rumour suspicion arises, and from rumour and
[031] suspicion a strong presumption, which must stand until the man indicted has
[032] purged himself of such suspicion, since¹⁰ it admits of proof to the contrary, that is,
[033] purgation.] [Suspicion may be of many kinds. It arises when rumour originates
[034] among good and responsible men.¹¹ Also from a precedent act, which must also
[035] stand until the contrary is proved, as where one appealed by an approver flees
[036] because of the appeal and returns after the death of the approver,¹² [or] where one
[037] appealed of homicide or other felony

Notes

1. Infra 416

2. Infra 409

3. ‘appellans,’ as infra

4. Supra i, 389

5. Not in B.N.B., no roll extant

6. New paragraph

7. Infra 420

8. Not in B.N.B.; no roll extant

9. Supra 402

10. ‘quae standum est ... purgaverit (from lines 28-9) cum (for ‘tamen’) probationem’; om: ‘praesumptionem inducit’

11. Tancred, 154: ‘Verumtamen fama praecedere debet inquisitionem . . . et apud bonos et graves’; supra 338

12. Infra 433