of the same fact; as were those likewise who were appealed of force or command. But if the appellee was vanquished, he suffered capitally, and forfeited every thing from him and his heirs, as was before stated in case of outlawry. Should the appellor, when he came into the field, make a retraxit of the appeal, he was to be sent to gaol, and he and his pledges of prosecuting the duel were in misericordiá. But it was otherwise, if he was vanquished; for though hẹ was to be sent to gaol, he was generally pardoned the misericordia, in consideration that he had engaged in maintenance of the king's peace (a). After the principal was convicted, they might proceed to the duel against the accessory. This might be the next day. Or, if the accessory had not been yet appealed, they might then state an appeal against them, and proceed in like manner as before mentioned in case of principals; and the accessory, if convicted, would suffer as the principal, according to the maxim, satis occidit qui præcipit. If any thing happened which prevented the appeal against the accessories, the king might take it up pro pace suá; and then the trial would of necessity be per patriam; for the duel could not be waged against the king. There were other instances where the duel could not be waged; as, when the appellor was a woman; when the appellor had been maimed, or was above sixty years old; though in this last case he had his election (b). We have seen, in Glanville's time, that there was a different judg ment, when the offender failed to purge himself per legem, and when he was vanquished in the duel (c). A similar difference seems to have subsisted at this time; for when the king pursued an appeal pro pace sua, and convicted the party by the inquest, Bracton doubted what was to be the punishment. Some thought it was to be capital, as it would have been if the appeal had gone on at the suit of the (c) Vid. ant. vol. I. 197. (a) Bract. 142. (b) Ibid. 142. b. party; others thought, that it was to be only a pecuniary penalty; and yet, where a woman convicted a man of a rape per patriam, he suffered as upon an appeal in other cases (a). We have hitherto been treating of a prosecution when a person chose to stand forth as accuser, and when the king carried on the suit, on the omission or failure of such person in continuing it. It remains now to say something upon the other mode of prosecution, which was when a person was indicted per famam patria. This was pro- Proceeding per bably no other than the fama publica mention- famam patriæ. ed by Glanville (b); which raised a presumption amounting to a conviction, till the party had purged himself from the suspicion thereby thrown upon him: for this, like all other presumptions, was open to a proof or purgation to the contrary. The fame which was sufficient to raise this presumption, ought to be such as was entertained by good and grave men, who deserved credit, and not the flying reports of common conversation. Thus,as a person indicted per famam patria was charged by the patria, or twelve jurors, elected in the manner before-mentioned, who had founded the ac, cusation upon their own knowledge or persuasion, collected from observation or report; it became the judge, if he had any doubt, or suspected the jury, to make strict examination into the matter, and ask the twelve, how they learnt what they in their verdict declared concerning the person indicted; and upon their answers he might judge whether the charge was founded in truth or malice (c). Perhaps, says Bracton, some of the jurors might say, that they collected their information from one of their brother-jurors; who, upon being interrogated particularly, might say he had it from such-a-one, and so on, till it was traced to some disreputable person, who deserved no credit. It often happened that these examinations brought to light the iniquity (a) Bract. 143. (3) Vid. ant, vol. I. 200. (c) Bract. 143. of a charge. It sometimes turned out that an imputation of a crime was contrived to be thrown on a freeholder by his lord, in order to get an escheat; sometimes by a neighbour from other malicious motives. When this examination had been made in order to proceed to taking the verdict, and giving judgment thereon with more security, then the judge was to inform the party indicted, that, if he entertained suspicion of any of the jurors, he might have them removed: for, if no objection was made to any of them, when the twelve jurors (a) appeared, they were all sworn, either singly, or all together as follows; "Hear this, ye justices, that we will speak the "truth of that which you shall require of us on the part "of our lord the king, and in nothing will we omit to speak the truth; so help, &c." After which one of the justices gave them the matter in charge, in this way: "This man, who is here present, charged with such a "crime, comes and defends the death and every thing "with which he is charged, and puts himself thereof up on your tongues, de bono et malo; and therefore we "charge you, by the faith by which you are bound to God, "and by the oath you have taken, that you make known "to us the truth thereof; nor do you omit, through fear, "love, or hatred, but that, having God before your eyes, you declare whether he is guilty of that with which he " is charged, or not guilty; and do not bring any mischief on him, if he is innocent of the crime." According to the verdict given by the jurors, the party was either de▾ livered or condemned. -66 The form in taking an inquest per patriam was to be observed by the justices in all cases, where a party, as in (a) It seems from the manner in which Bracton expresses himself, as if, in cases of killing, the four townships which had appeared before the coroners were joined with the jurors of the patria, and must concur with them in their verdict. Bracton says, that any of the townships might be challenged, the same as the other jurors. Bract. 153. b. 154. a. Vid, ant. Vol. I, 193. the above-mentioned instances, had put himself upon an inquest. Whenever the justices suspected the charge to be true, and that the jurors, through fear, or love, or malice, were inclined to conceal the truth, they might, if they pleased, separate them one from the other, and examine them apart, in order to sift out the real truth of the matter (a). Here then do we see the office of the twelve jurors chosen out of each hundred at the eyre: they were to digest and mature the accusations of crimes founded upon report, and the notorious evidence of the fact; and then again, under the direction of the justices, they were to reconsider their verdict, and upon such review of the matter, they were to give their verdict finally. Again, wherever any circumstance rendered it unlawful or impossible that the duel should be waged in an appeal, the truth was enquired of by these jurors; and we may suppose, that in all other causes in the eyre, whether civil or criminal, where a matter arose that was to be tried by a jury, it was referred to one of these juries, who attended there on the business of the county. It may be collected from a single mention of purgation by Bracton, that a person charged per patriam might purge himself, as formerly (b), or put himself on the country, as before mentioned. One of these was Now have we finished all that can be said of other concerning an appeal of death. There were appeals. several other cases of personal injury, where an appeal was the usual mode of prosecution. de pace et plagis, as they called it. appeal was, A. appellat B. quòd such a day, sicut fuit in pace domini regis in such a place, venit idem B. cum vi su, et contra pacem domini regis in feloniâ, et assultu premeditato fecit ei insultum, et quandam plagam ei fecit in such a part, with such a sort of arms; et quòd hoc fecit nequiter, et in feloniá, offert probare versus eum (b). Vid, ant, vol. I. 195. (a) Bract. 143. b. VOL. II, per corpus suum, &c. as in the before-mentioned appeal. To this the appellee made his defence: Et B. venit, et defendit pacem domini regis infractam, et feloniam, et plagam, et quicquid est contra pacem domini regis, and so on, denying the whole appeal per corpus suum secundum quod curia consideraverit. In this there might be the same general exceptions made, as were stated in case of homicide; as, that suit was not made before the sheriff and coroners, and the like. The appellee might have his option, whether to defend himself per corpus or per patriam, except in some few cases, where the trial by duel was not allowed; as, if it was not a plaga, but only a bruise; and for that purpose the party was to be inspected and examined; for if it was not a plaga, it was only a trespass, and no felony (a). In like manner, if it was not laid armis molutis, but if it was done by a stone or stick, in this appeal, as well as in that of homicide,. as we before observed, they could not decide it by duel; for these weapons, says Bracton, made only a bruise, and not a plaga, or wound (b). Another appeal for a personal injury, more aggravated than the foregoing, was that de plagis et mahemio; which appeal was stated much in the words of the former: A. appellat B. quòd cùm esset in pace domini regis in such a place, &c. venit idem B. cum vi sud, et in feloniá et assultu premeditato, &c. as in the former, et fecit ei quandam plagam in capite,ita quòd mahemiatus est ; et quòd hoc fecit nequiter et in feloniá, offert probare versus eum, sicut homo mahemiatus,prout curia dom. regis consideraverit: and the defence, Et B.venit, et defendit, &c. The first step to be taken was for the justices to inspect the wound, to see if it was a mayhem; and if it was, the appellee was constrained to defend himself by the country; for it would be a double injury to oblige the appellor to engage in the duel, A mayhem was defined to be, when a man was rendered, |