Chapter THIRTY-SIX

Nichil detur vel capiatur de cetero pro brevi inquisicionis de vita vel membris, sed gratis concedatur et non negetur.

Nothing in future shall be given or taken for a writ of inquisition of
life or limbs, but freely it shall be granted, and never denied.

This chapter has an important bearing upon trial by combat, and none at all upon _habeas corpus_, to which it is often supposed to be closely related. The particular writ upon which such emphasis is here laid had been invented by Henry II. to obviate the judicial duel in certain cases, by allowing the accused man virtually to refer the question of his guilt or innocence to the sworn verdict of his neighbours.

I. _Trial by Combat prior to the Reign of John._ The crucial moment in judicial proceedings during the Middle Ages arrived, as has already been explained,[747] when the “test” or “trial” (_lex_) appointed by the court was attempted by one or both of the litigants. The particular form of proof to which the warlike Norman barons were attached was the _duellum_, and it was only natural that such of the old Anglo-Saxon aristocracy as associated with them on terms of equality should adopt their prejudices. Hence “combat” became the normal mode of deciding all serious disputes among the upper classes. Even from the first, however, it seems not to have been competent for property of less than 10s. in value,[748] and it soon came to be specially reserved for two classes of disputes—civil pleas instituted by writ of right, and criminal pleas following on “appeal.” The present chapter is concerned with the latter only.

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Footnote 747:

See _supra_, pp. 103-6.

Footnote 748:

See _Leges Henrici primi_, c. 69, §§ 15-16.

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An “appeal” in this connection was entirely different from the modern appeal from a lower to a higher court. It was a formal accusation of treason or felony made by a private individual on his own initiative, and was usually followed by judicial combat between the appellant and appellee, each of whom fought in person. Such a right was necessary in an age when the government had not yet assumed a general responsibility for bringing ordinary criminals to justice, or was at least so lax and spasmodic in performing that function as to leave many wrongdoers unpunished. Appeal followed by battle was probably in its origin a form of legal procedure substituted for the older blood-feud.[749] Those who had suffered wrong would be more readily dissuaded from their vendetta if they were allowed instead the right of judicial duel under fair conditions laid down by the court. The Norman trial by combat was thus a survival from an earlier stage of society when the wronged person, not the magistrate, had been the avenger of crime; and this explains several peculiarities—why, for example, when the accused had uttered “that hateful word craven,”[750] thus confessing himself vanquished and deserving a perjurer’s fate, the victorious accuser was entitled to his vengeance, even in the face of a royal pardon. When Henry of Essex, constable and standard-bearer of Henry II., accused by his enemy, Robert de Montfort, in 1163, had been worsted in the combat, the royal favour could not shield him, though apparently the king’s connivance enabled him, by renouncing his possessions and becoming a monk, and therefore dead in law, to escape actual death by hanging.[751] It would seem that at an early date the whole procedure had resembled even more closely a legalized private revenge, since the appellant who had vanquished his foe was allowed personally to put him to death. "The ancient usage was, so late as Henry IV.’s time, that all the relations of the slain should drag the appellee to the place of execution."[752]

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Footnote 749:

Cf. _supra_, c. 20.

Footnote 750:

“_Illud verbum odiosum quod recreantus sit._” Bracton, _folio_ 153.

Footnote 751:

See Jocelyn of Brakelond, pp. 50-2.

Footnote 752:

Blackstone, _Commentaries_, IV. 316.

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The evils of trial by combat are obvious. From the first it was dreaded and avoided by the traders of the boroughs, who paid heavily for charters of exemption. Their aversion spread to the higher classes, and was shared by Henry II. To that great statesman, endowed with the ardent instincts of a reformer, despising utterly all obsolete and irrational modes of procedure, and quite devoid of reverence for tradition, trial by combat was entirely abhorrent. He would gladly have abolished it out and out if he had dared; but he prudently followed the more subtle policy of slowly undermining its vitality. For this purpose he used four expedients, which are of great interest in respect that they throw light on the process by which trial by jury superseded trial by battle.[753] (1) Every facility was afforded the parties to a civil suit who were willing to forego the _duellum_ voluntarily. Henry placed at their disposal, as a substitute, a procedure which had by his ancestors been specially reserved for the service of the Crown. Litigants might refer their rival claims to the oath of a picked body of local neighbours: the old recognitors thus developed into the _jurata_. This course was possible, however, only where both parties consented, and it had many features in common with a modern arbitration. (2) In pleas relating to the title and possession of land Henry went further, granting to the defendant the option of a peaceful settlement even when the claimant preferred battle. The men to whose oaths such cases were referred were known as an _assisa_, not a _jurata_, since both litigants had not consented. The three various groups of assizes welcomed by the barons in chapter 18 have already been discussed. The _assisa_, like the _jurata_, could be applied only to civil pleas. (3) Attempts were made to discourage trial by combat in criminal pleas also by discouraging the exercise of the right of private “appeal,” its natural prelude. The corporate voice of the accusing jury was made as far as possible to supersede the individual complaint of the injured party offering battle. Only the near blood relation, or the liege lord, of a murdered man was allowed to prove the offender’s guilt by combat; while a woman’s right of appeal was kept within narrow limits.[754] (4) A wide field was still left for private appeal and battle; but Henry endeavoured to narrow it by a subtle device. In appeals of homicide, where the accusation was not made _bona fide_, but maliciously or without probable cause, the appellee was afforded a means of escaping the _duellum_. He might apply for the writ which forms the subject of this chapter.

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Footnote 753:

Cf. _supra_, 107–9, and also 158-163.

Footnote 754:

Some particulars are given under c. 54.

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II. _The Writ of Life and Limb._ The writ here referred to, better known to medieval England as the writ _de odio et atia_,[755] was intended to protect from duel men unjustly appealed of homicide. Rash or malicious accusations might be raised by turbulent knights, who made fighting their pastime, in order to gratify a grudge against traders or other men of peace, and many an appealed man was glad to purchase from the king permission to escape by assuming the habit and tonsure of a monk;[756] but Henry desired to save innocent men from the risk of failure in the _duellum_ without this subterfuge. If the accused asserted that his appellant acted “out of spite and hate” (_de odio et atia_), he might purchase from the royal chancery a writ known by that name, which referred the preliminary plea thus raised to the verdict of a sworn body of twelve recognitors drawn from his own locality. If his neighbours upheld the plea all further proceedings on the appeal were quashed: the _duellum_ was avoided.[757] A similar privilege was afterwards extended to all those guilty of homicide in self-defence, or of homicide by misadventure, not of deliberate murder.[758] Soon every man appealed of murder, whether guilty or not, alleged as a matter of course that he had been accused groundlessly and maliciously, mere “words of common form.” This expansion of the writ’s sphere of usefulness was accompanied by another change. The main issue of guilt or innocence, not merely the preliminary pleas, came to be determined by the neighbours’ verdict,[759] which, whether for or against the accused, was treated as final. No further proceedings were necessary: none were allowed. The _duellum_ had at last been successfully elbowed aside, although it was not abolished until 1819.[760]

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Footnote 755:

In identifying the writ spoken of by Magna Carta as that “of life and
limbs” with the well-known writ _de odio et atia_, most authorities
rely on a passage in Bracton (viz.: _folio_ 123). There is still
better evidence. The Statute of Westminster, II. c. 29, ordains: “Lest
the parties appealed or indicted be kept long in prison, they shall
have a writ _de odio et atia_ like as it is declared in Magna Carta
and other statutes.” Further, in 1231 twelve jurors who had given a
verdict as to whether an appeal was false, were asked _quo waranto
fecerunt sacramentum illud de vita et membris_, without the king’s
licence. See Bracton’s _Note Book_, case 592.

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Footnote 756:

Madox, I. 505, has collected instances.

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III. _Subsidiary Uses of the Writ._ This inquest of life and limb, devised as a means of substituting a sworn verdict for the _duellum_ in cases of homicide, has often been claimed as the direct antecedent of, if not as identical with, the procedure which in the seventeenth century became so valuable a bulwark of the subject’s liberty, under the name of _habeas corpus_. This is a mistake; the modern writ of _habeas corpus_ was developed out of an entirely different writ, which had for its original object the safe-keeping of the prisoner’s body in gaol, not his liberation from unjust confinement.[761]

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Footnote 757:

Cf. Pollock and Maitland, II. 585-7, and Thayer, _Evidence_, 68.

Footnote 758:

It was extended in another direction also: some of the feudal courts
adopted a similar procedure in false appeals (although the king
objected to their doing so without royal licence). Inquests were held
shortly after the abolition of ordeal (1215) in the court of the Abbot
of St. Edmund. See Bracton’s _Note Book_, case 592.

Footnote 759:

See Pollock and Maitland, II. 586.

Footnote 760:

59 George III. c. 46.

Footnote 761:

The early history of _habeas corpus_ is traced by Prof. Jenks in a
learned and interesting article in the _Law Quarterly Review_, VIII.
164. The writ _de odio_ was obsolete at a date prior to the invention
of the _habeas corpus_.

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The opinion generally though erroneously held, is not without excuse; for the writ mentioned by Magna Carta, besides effecting its main purpose, was put to another and subsidiary use, which bears a superficial resemblance to that served by the _habeas corpus_ of later centuries. Considerable delay might occur between the appellee’s petition for the writ of inquisition and the verdict upon it. In the interval, the man accused of murder had, in the normal case, no right to be released on bail, a privilege allowed to those suspected of less grave crimes. This was hard in cases where the accused was the victim of malice, or guilty only of justifiable homicide. Prisoners, placed in such a plight, might purchase from the Crown, always ready to accept fees in a worthy cause, royal writs which would save them from languishing for months or years in gaol. The writ best suited for this purpose was that _de odio et atia_, since it was already applicable to presumably innocent appellees for another purpose.[762]

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Footnote 762:

Cf. Brunner, _Entstehung der Schwurgerichte_, p. 471.

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As trial by combat became rapidly obsolete, the original purpose of the writ was forgotten, and its once subsidiary object became more prominent. Before Bracton’s day (possibly even before the date of Magna Carta) this change had taken place: the writ had come to be viewed primarily as an expedient for releasing upon bail homicides _per infortunium_ or _se defendendo_. Bracton, in giving the form of the writ,[763] declares it to be iniquitous that innocent men accused of homicide should be long detained in prison; therefore, he tells us, an inquisition is wont to be made at the request of sorrowful friends—whether the accusation is _bona fide_ or has been brought _de odio et atia_. This pleasing picture of a king moved to pity by the tearful friends of accused men scarcely applies to John, who listened only to suitors with long purses which they were ready to empty into his exchequer. The writs which liberated homicides had become a valuable source of revenue. Sheriffs were frequently reprimanded for releasing prisoners on bail without the king’s warrant, but, in spite of heavy amercements, they continued their irregularities, either through favour to individuals or in return for bribes. Thus, in 1207, Peter of Scudimore paid to the exchequer a fine of 10 marks for setting homicides free upon pledges, without warrant from the king or his justices.[764] In that year, John repeated his orders, strictly forbidding manslayers to be set free upon bail, unless by royal command, until they had received judgment in presence of the king’s justices.[765]

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Footnote 763:

See _folio_, 123.

Footnote 764:

See _Pipe Roll_, 8 John, cited Madox, I. 566.

Footnote 765:

See _Rot. Pat._, I. 76, cited Madox, I. 494. The date is 8 November,
1207.

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To John, then, the excessive and arbitrary fees to be received for this writ, constituted its greatest merit; whereas the barons claimed, as mere matter of justice, that it should be issued free of charge to all who needed it. John’s acceptance of their demands, contained in the present chapter, was repeated in all reissues, and apparently observed in practice. The procedure during the reign of Henry III. is described by Bracton in a passage already cited. After the writ _de odio_ had been received, an inquest, he tells us, must be held speedily, and if the jury decided that the accusation had been made maliciously, or that the slaying had been committed in self-defence or by accident, the Crown was to be informed of this. Thereafter, from the chancery would be issued a second writ, the form of which is also given by Bracton (known in later days as the writ _tradias in ballium_) directing the sheriff, on the accused finding twelve good sureties of the county, to “deliver him in bail to those twelve” till the arrival of the justices. Such writs, however, if in one sense “freely” issued, had always to be paid for. A certain Reginald, son of Adam, when accused in 1222, offered one mark to the king for a verdict of the three neighbouring counties (it was a Lincolnshire plea), as to whether the accusation was made because of “the ill-will and hate” (_per odium et atiam_) which William de Ros, appellant’s lord, bore to Reginald’s father “_vel per verum appellum_.”[766]

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Footnote 766:

See Bracton’s _Note Book_, case 134, and cf. case 1548.

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A long series of later statutes enforced or modified this procedure. These have been interpreted to imply frequent changes of policy, sometimes abolishing and sometimes reintroducing the writ and the procedure which followed it.[767] This is a mistake; the various statutes wrought no radical change, but merely modified points of detail; sometimes seeking to prevent the release of the guilty on bail, and sometimes removing difficulties from the path of the innocent. The Statute of Westminster, I., for example, after a preamble which animadverted on the manner in which sheriffs impannelled juries favourable to the accused, provided that inquests “shall be taken by lawful men chosen out by oath (of whom two at the least shall be knights) which by no affinity with the prisoners nor otherwise are to be suspected.”[768] The Statute of Gloucester, on the other hand, ordered the strict confinement, pending trial, of offenders whose guilt was apparent.[769] The Statute of Westminster, II. once more favoured prisoners, providing by chapter 12 for the punishment of false appellants or accusers, and by chapter 29 that “lest the parties appealed or indicted be kept long in prison, they shall have a writ of _odio et atia_, like as it is declared in Magna Carta and other Statutes.”[770]

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Footnote 767:

Stephen, _Hist. Crim. Law_, I. 242 (following Foster, _Crim. Cases_,
284–5), considers that it was abolished by 6 Edward I., stat. 1, c. 9.
Coke, _Second Institute_, 42, thought it was abolished by 28 Edward
III. c. 9 (which, however, seems not to refer to this at all), and
restored by 42 Edward III. c. 1 (abolishing all statutes contrary to
Magna Carta). Coke, _Ibid._, and Hale, _Pleas of the Crown_, II. 148,
considered that the writ was not obsolete in their day. Cf. Pollock
and Maitland, II. 587, n.

Footnote 768:

3 Edward I. c. 11.

Footnote 769:

6 Edward I., stat. 1, c. 9.

Footnote 770:

13 Edward I. cc. 12 and 29.

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The writ in question was in use in the year 1314,[771] and seems never to have been expressly abolished, but to have sunk gradually into neglect, as appeals became obsolete and commissions of gaol delivery were more frequently held.

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Footnote 771:

See _Rot. Parl._, I. 323.

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IV. _Later History of Appeal and Battle._ The right of private accusation was restricted only, not abolished, by Henry II. and his successors. It could not be denied to any injured man, who was not suspected of abusing his right. Prosecutions in the king’s name by way of indictment and jury trial supplemented, without superseding, private prosecutions by way of appeal and battle. The danger of a second prosecution might hang over the head of an accused man after he had “stood his trial” and been honourably acquitted. It was unfair that he should be kept in such suspense for ever; and, accordingly, the Statute of Gloucester provided that the right of appeal should lapse unless exercised within year and day of the commission of the offence.[772] To ensure that the accused should escape all risk of a double prosecution for the same crime, it was necessary that the Crown should supplement the provisions of this act by delaying to prosecute until the year and day had expired. This rule was followed in 1482. Such immunity from arraignment at the king’s suit for the space of twelve months (combined with the provisions of the Statute of Gloucester) would undoubtedly have obviated the possibility of two trials for one offence; but it produced a worse evil of a different kind, by facilitating the escape of criminals from justice. After experience of its pernicious effects, this rule was condemned by the act of parliament which instituted the Star Chamber.[773]

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Footnote 772:

6 Edward I. c. 9. Appeals were extremely frequent towards the close of
the Plantagenet period, especially in the days of “the Lords
Appellant.” The proceedings which followed on appeal sometimes took
place before the Court of the Constable and Marshal and sometimes
before Parliament. In neither case were they popular. One of the
charges brought against Richard II. by the Parliament which deposed
him, was that “in violation of Magna Carta” (that is, probably, of
chapter 39) persons maliciously accused of treasonable words were
tried before the constable and marshal, and although they might be
“old and weak, maimed or infirm,” yet compelled to fight against
appellants “young, strong, and hearty.” See _Rot. Parl._, III. 420,
cited Neilson, _Trial by Combat_, 193. On the other hand, the Statute
1 Henry IV. c. 14 provided that no appeals should in future be held
before Parliament, but only before the Court of the Constable and
Marshal.

Footnote 773:

See 3 Henry VII. c. 1, s. 11. This statute emphasized how the injured
party, with the right of appeal, was “oftentimes slow and also agreed
with, and by the end of the year all is forgotten, which is another
occasion of murder.”

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This remedied the more recent evil, but revived the old injustice; the same statute enacted that acquittal should not bar the right of appeal of the wife or nearest heir of a murdered man. Thus, once again, a man declared innocent by a jury might find himself still exposed to a second prosecution. This unjust anomaly remained without formal redress until the nineteenth century; and in 1817 the British public was startled to find that a long-forgotten legal procedure of the dark ages still formed part of the law of England. The body of a Warwickshire girl, Mary Ashford, was discovered in a pit of water under circumstances which suggested foul play. Suspicion fell on Abraham Thornton, who had been in her company on the night when she disappeared. After indictment and trial at Warwick Assizes on a charge of rape and murder, he was acquitted. The girl’s eldest brother, William Ashford, was not satisfied by what was apparently a perfectly honest verdict. He tried to secure a second trial, and with this object claimed the ancient right of appeal of felony, which the judges did not see their way to refuse. Ashford’s attempt to revive this obsolete procedure was met by Thornton’s revival of its equally obsolete counterpart. Summoned before the judges of King’s Bench, he offered to defend himself by combat, throwing down as “wager of battle” a glove of approved antique pattern. The judges had to admit his legal right to defend himself against the appeal “by his body,” and Thornton thus successfully foiled the attempt to force him to a second trial, as the court never contemplated the possibility of a medieval judicial combat being actually fought in the nineteenth century. The appeal was withdrawn and the proceedings terminated.[774]

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Footnote 774:

See _Ashford v. Thornton_, 1 B. and Ald. 405-461.

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The unexpected revival of these legal curiosities of an earlier age led to their final suppression. In 1819 a Statute was passed abolishing proof by battle alike in criminal and in civil pleas; and the right of appeal fell with it.[775]

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Footnote 775:

See 59 George III. c. 46.