Bracton: Thorne Edition: English. Volume 2, Page 432

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Volume 2, Page 432

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[001] any allowance or exception, let the duel be waged between them and let the
[002] appellee give gage for defending and the approver for deraigning. If the appellee
[003] has no pledges the gaol shall then be the pledge of both.¹ And a day shall be given
[004] on which they shall come armed. When they appear, let the defender first swear an
[005] oath in these words:

Of the form of oath sworn by appellors and appellees; the appellee shall first swear in words of denial.

[007] ‘Hear this, O man, whom I hold by the hand and who callest thyself A. by thy
[008] baptismal name, that I am not a thief nor thy confederate in theft (or ‘robbery’
[009] and the like) nor did I steal with thee such a thing at such a place (‘nor did we
[010] [together] commit such a robbery’ or whatever it may be) nor did I have such an
[011] amount as my share, so help me God etc.’

The appellor shall then swear affirmatively.

[013] Then let the approver say: ‘Hear this, O man, whom I hold by the hand and
[014] callest thyself B. by thy baptismal name, that thou art a perjurer, and perjured in
[015] this wise, because thou art a thief and a confederate of mine in theft, because we
[016] stole together such a thing at such a place (or ‘we together committed such a
[017] robbery’ or did whatever it may be) and thou hadst so much as thy share thereof,
[018] so help me God etc.’ And so, the procedure described above being observed, let
[019] the duel be fought between them.

If the appellee is vanquished.

[021] If the appellee is vanquished the approver shall wage another duel against another
[022] appellee on the same day, [but another day shall be appointed for the fight, on
[023] which they shall both come armed,] and let the same be done as to several, one
[024] after the other. According to some it is not enough if the appellee confesses himself
[025] a confederate and a thief, or says something that amounts to a craven admission
[026] of defeat, but must utter the said hateful word, that he is a craven, and also a
[027] confederate and a thief. In the opinion of others it is enough that he confesses
[028] himself a confederate and a thief, since it does not matter whether a thing itself
[029] be done or its equivalent.

If the approver is vanquished.

[031] If the approver² is vanquished let the appellee be released, but under pledges,
[032] because of the suspicion arising from the appeal,³ [unless the justices decide that
[033] he be kept in prison because he is suspect for some other reason, perhaps because
[034] he was indicted at another time,⁴ [if this is attested] by knights and other trustworthy
[035] men, as [in the roll] of Hilary and Easter terms in the fifth year of king
[036] Henry in the county of York, at the beginning of the roll, [the case] of Robert son
[037] of Ives,⁵ where [another] duel was waged on the same day

Notes

1. C.R.R., x, 67 ‘plegius utriusque gaola’; supra 345, 431, n. 7, infra 433

2. ‘probator’

3. Infra 433

4. ‘alias,’ as infra 433, 435

5. C.R.R., x, 67 (the words ‘De corona’ are above the entry), B.N.B., no 1517; infra 433