Should the accused, on the other hand, deny, in due manner[501] in
Court, every thing the other had asserted, it is usual to decide the
Plea by the Duel. And here it should be observed, that from the moment
the Duel is waged, in Pleas of the kind we are now treating of, neither
of the parties can add nor diminish any thing from the words employed
in waging the Duel, or, in any other measure decline or recede from his
undertaking, without being held as conquered, and liable to the penal
consequences.
[Footnote 501: _Seriatim de verbo ad verbum._ (Fleta L. 1. c. 21. s.
2.) _Sufficit si communiter se defenderit dum tamen de causa_: (Ibid.)
a greater strictness in pleading being required on the part of the
accuser than the accused.]
Nor can the parties be afterwards reconciled to each other, by any
other mode, than the King’s License, or that of his Justices. But if
the Appellor be conquered, he shall be amerced to the King, the nature
of which has been sufficiently explained in a former part of this work.
What penalties also and infamy he shall incur, if conquered, have been
sufficiently detailed. If the Accused be conquered, the Judgment that
awaits him has been mentioned just before, to which may be added, the
confiscation of all his Chattels, and the perpetual Disinherison of his
Heirs.[502]
[Footnote 502: So great, indeed, is the crime, says Bracton, that
scarcely is it permitted to the Heirs that they should live. (118.)
In speaking of Treason, Bracton warms with his subject; and the grave
Lawyer starts into the animated Orator.]
Every free Man of full age is admissible as an Accuser, in a
prosecution of this kind. Should, however, a Minor bring an Appeal, he
shall be attached, in the manner we have before stated. A Rustic[503]
is also admissible; but a Woman shall not be received to make an
accusation in any plea of Felony, unless in some particular instances,
concerning which we shall presently speak. But the Accuser may, in
Pleas of the kind we are discussing, decline the Duel, either on
account of his age, or by reason of his being adjudged to have received
a Mayhem.[504]
[Footnote 503: _A Husbandman_, says Skene. (Reg. Maj.) I translate the
word literally, and refer the Reader to the last passage of the present
chapter. Vide Mirror c. 2. s. 28.]
[Footnote 504: _Mahemium_ is said to be derived from the old French
word, _mehaigne_. (Co. Litt. 126. a. 288. a. Cowell and Spelm. Gloss.)]
But the age of the party, in such a case, ought to be sixty years or
upwards. Mayhem signifies the breaking of any bone, or injuring the
head, either by wounding or abrasion. In such case, the Accused is
obliged to purge himself by the Ordeal, that is, by the hot Iron, if he
be a free Man—by water, if he be a Rustic.[505]
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