Bracton: Thorne Edition: English. Volume 2, Page 349

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Volume 2, Page 349

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[001] until he has purged himself satisfactorily of the crime imputed to him or has failed
[002] to do so, whereupon he ought to be degraded,]¹ ²because the king will have no right
[003] to imprison one he cannot judge, [nor can he degrade clerks who cannot promote
[004] them in orders,]³ as was said above.⁴

When a man fails in his purgation in court christian.

[006] When a clerk convicted of a crime is degraded, no other punishment follows for the
[007] single or the several offences committed before his degradation. Degradation, which
[008] involves a great diminutio capitis,⁵ is punishment enough, unless he is convicted
[009] of apostasy, for then he is first degraded and afterwards burned by the lay arm, as
[010] happened in the Council of Oxford, held by Stephen, archbishop of Canterbury,
[011] of blessed memory, in the case of a certain deacon who apostatized for the sake of a
[012] jewess and who, when he had been degraded by the bishop, was forthwith committed
[013] to the flames by the lay arm.⁶ If any ordinary refuses to impose purgation in court
[014] christian on a clerk thus delivered to him unless the accuser makes his accusation
[015] anew before him, let a writ then be issued to him on the king's behalf in this form:

Where the ordinary refuses to impose purgation on a man when he is delivered to him; a writ then should issue to him as follows:

[017] ‘The king to such an ordinary, greeting. We have heard that though a certain clerk,
[018] accused (or ‘appealed’ or ‘indicted’) of homicide, had been brought before our
[019] justices and there handed over to you as a clerk, that he might purge himself
[020] before you and prove his innocence if he could, you do not wish, so it is said, to
[021] proceed to the purgation unless someone sues de novo before you in the ecclesiastical
[022] court and presents an accusation against him. Since by the accusation made in
[023] our court with respect to that death he is held sufficiently suspect, and after⁷ such
[024] accusation and indictment nothing further remains save that his purgation be
[025] permitted to take place before you, which would be done, were he a layman and
[026] if his order did not raise an impediment, in our court, [where], though no one sued
[027] we would sue for the preservation of our peace, we order you to carry out what it is
[028] your duty to do according as the said man has purged himself before you or not.
[029] Witness etc.’

Of the custody of the accused; who are to be committed to prison and who released on finding pledges; and of breach of prison.

[031] In every injuria and trespass against the king's peace to which the word ‘felony’ is
[032] added, the appellee or person accused is usually released by pledges, except in the
[033] case of homicide,⁸ since ⁹no one who can provide pledges is to be thrust into prison
[034] unless it is evident that he has perpetrated so serious a crime that he ought not
[035] to be handed over

Notes

1. Infra 378; iv, 250, 266, 278

2. Om: ‘Et ideo . . . christianitatis,’ a connective

3. ‘qui’ for ‘quia’; infra iv, 250, 266, 278

4. Supra 346

5. X. 5.1. ca. 24: ‘ad diminutionem capitis, id est degredationem’

6. Maitland, Coll. Pap., i, 385; P. and M., i, 437, n. 4

7. ‘post’ for ‘per’

8. From supra 347, n. 3

9. Reading: ‘cum non sit quidam in carcerem detrudendi si plegios dare possit’

9-10. D. 48.3.3: ‘non esse in vincula coicendum eum qui fideiussores dare paratus est nisi si tam grave scelus admisisse eum constet ut neque fideiussoribus neque militibus committi debeat, verum hanc ipsam carceris poenam ante supplicium sustinere.’