Bracton: Thorne Edition: English. Volume 2, Page 65

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Volume 2, Page 65

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[001] he ought at once to raise the hue and cry and with it proceed to the adjoining vills,
[002] to the king's serjeant, and then to the county court, making manifest [to all] the
[003] violence done him, and in that way what was done will be revoked;¹ if he does
[004] nothing he is presumed to acquiesce, as [in the roll] of a certain eyre of S[tephen]
[005] of Segrave in the county of Cambridge, [the case] of Peter de Beche, who was
[006] summoned to warrant a certain charter of the manor of Middleton to Fawkes de
[007] Breaut‰, in which judgment was given at Westminster.² One is excused and has his
[008] exception not only when force or duress is brought to bear against himself, but also if
[009] either is used against his people, as against his son or daughter, brother or sister, or
[010] others, servants or relatives,³ as [in the case] of the same Fawkes, who held one of
[011] two brothers in prison until the other gave him a certain manor. What force is,
[012] and the forms it may take, will be explained below in the tractate on the assise
[013] of novel disseisin.⁴ Here we must explain what fear is. ⁵It is an agitation of the
[014] mind caused by danger, present or future.⁶ ⁷We must take it to be immediate fear,
[015] not the suspicion that it will be brought to bear;⁸ nor is it the fear of the weak or
[016] timid, but such as may occur in a resolute man.⁹ Properly so called it [arises out of]
[017] the danger of death and bodily torture.¹⁰ It makes a difference, however, whether
[018] the fear precedes or follows the gift, for if I, coerced and compelled by fear, first
[019] promise and then freely and voluntarily give, such fear does not excuse; but if I
[020] first promise freely and then, coerced by fear and [force], deliver, such fear does
[021] excuse, because of the force and compulsion connected with the transfer, for my
[022] original intention to transfer the thing to the donee may have been abandoned. But
[023] what of a gift made by a man captured by the enemy and in prison? Quaere whether
[024] it is valid. At first sight it seems that it ought to be, [for] if one in such circumstances
[025] makes a gift to a relative or friend, to a deserving knight or servant,
[026] obviously neither compulsion nor fear has played any part in the transaction, for
[027] the donor desired to give to such person and the gift is thus genuine, free and
[028] absolute, and consequently valid. [On the other hand], if he made it unwillingly,
[029] through imprisonment, compelled by a force he could not resist,¹¹ it would seem
[030] to be invalid. Whence it appears that one imprisoned may

Notes

1. Infra 394

2. From Segrave's 1219 Cambridge eyre; he never participated in a Kent eyre. Judgment presumably given 1219 Trin., but only fragments remain of the roll. Information from Mr. C. A. F. Meekings

3. Infra iii, 20

4. Ibid.

5-6. D. 4.2.1; Azo, Summa Cod. 2, 19, no. 2; Woodbine in Yale L. Jour., xxxi, 835 n.

7-8. D. 4.2.9. pr.: ‘metum autem praesentem accipere debemus, non suspicionem inferendi eius’

9. D. 4.2.6. ‘non vani hominis,’ ‘in homini constantissimo’; 4.2.7: ‘meticulosus’; Azo, op. cit., no. 3: ‘constantem’; infra 296

10. C. 2.4.13; D. 4.6.3

11. D. 19.2.15.2: ‘vim qui resisti non potest’; Azo, Summa Cod. 2.19, no. 3