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CHAPTER THIRTY–SIX. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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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 writ upon which emphasis is here laid had been invented by Henry II. to obviate the judicial duel, by allowing the accused to refer the question of guilt or innocence to the verdict of his neighbours.
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,1 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. “Combat” became the normal mode of deciding pleas among the upper classes. From the first, however, it seems not to have been competent for property of less than 10s. in value,2 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.
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. The wronged person, not the magistrate, was the avenger of crime; and this explains several peculiarities—why, for example, when the accused had uttered “that hateful word craven,”1 thus confessing himself vanquished and deserving a perjurer’s fate, the victorious accuser was entitled to his vengeance, even in face of a royal pardon. When Henry of Essex, constable and standard–bearer of Henry II., in 1163, had been worsted in the combat, the royal favour could not shield him, though the King’s connivance enabled him, by becoming a monk, and therefore dead in law, to escape actual death by hanging.2 At an early date the procedure resembled even more closely a legalized private revenge: “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.”3
The evils of trial by combat are obvious. From the first it was dreaded 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 statesman, endowed with the instincts of a reformer, despising obsolete and irrational modes of procedure, and devoid of reverence for tradition, trial by combat was abhorrent. He would gladly have abolished it, but followed the more subtle policy of 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.4 (1) Every facility was afforded the parties to a civil suit to forego the duellum voluntarily. Henry placed at their disposal, as a substitute, a procedure which his ancestors had 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 tenant the option of a peaceful settlement even when the demandant preferred battle. The assisa, like the jurata, applied only to civil pleas. (3) Attempts were made to discourage trial by combat in criminal pleas also, by discouraging private “appeal,” its natural prelude. The corporate voice of the accusing jury was made to supersede the individual complaint of the injured party. 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.1 (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 that forms the subject of this chapter.
The Writ of Life and Limb.
The writ here referred to, better known to medieval England as the writ de odio et atia,2 was intended to protect from duel men unjustly appealed of homicide. Many an appealed man was glad to purchase escape by assuming the habit and tonsure of a monk;3 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 chancery a writ to refer this preliminary plea to the verdict of twelve recognitors. If his neighbours upheld the plea, further proceedings were quashed: the duellum was avoided.1 A similar privilege was afterwards extended to those guilty of homicide in self–defence, or of homicide by misadventure.2 Soon every man appealed of murder, whether guilty or not, alleged as matter of course that he had been accused maliciously, mere “words of common form.” Virtually, the main issue of guilt or innocence, not merely the preliminary pleas, came to be determined by the neighbours’ verdict,3 which was treated as final. No further proceedings were necessary: none were allowed. The duellum had been elbowed aside, although it was not abolished until 1819.4
Subsidiary Uses of the Writ.
This inquest of life and limb has been claimed as the direct antecedent of the procedure which became so valuable a bulwark of the subject’s liberty, under the name 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.5
The opinion generally, though erroneously, held, is not without excuse; for the writ mentioned by Magna Carta was put to a subsidiary use, which bears superficial resemblance to that of the habeas corpus. 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 no right to be released on bail, a privilege allowed to those suspected of less grave crimes. This was hard where the accused was the victim of malice, or guilty only of justifiable homicide. Prisoners, in such a plight, might purchase royal writs that 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.1
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, 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,2 declares it to be iniquitous that innocent men 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 tearful friends of accused men scarcely applies to John, who listened only to suitors with long purses: the writs that liberated homicides had become a valuable source of revenue. Sheriffs were reprimanded for releasing prisoners on bail without the King’s warrant, but, in spite of heavy amercements, they continued their irregularities. Thus, in 1207, Peter of Scudimore paid to the exchequer 10 marks for setting homicides free upon pledges, without warrant from the King.3 In that year, John repeated his orders, strictly forbidding manslayers to be set free upon bail until they had received judgment in presence of the King’s justices.4
To John, then, the 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 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 in self–defence or by accident, the Crown was to be informed of this. Thereafter, from the chancery would be issued a second writ (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.
It should be noted that the provision granting gratuitous writs was not construed as forbidding payments made by an accused man for a special form of “trial.” Prof. Maitland has shown how “occasionally a person pays money to the King that he may have an inquest, and it would seem that he might still buy the right to be tried by a body constituted in some particular way. He might pay to be tried by the jurors of two hundreds, or of three hundreds, and because of local enmities such a payment may sometimes have been expedient.”1 A certain Reginald, Adam’s son, in 1222, offered one mark 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” which William de Ros, appellant’s lord, bore to Reginald’s father “vel per verum appellum.”2
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.3 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 sheriffs impanelling juries favourable to the accused, provided that inquests “shall be taken by lawful men chosen by oath (of whom two at least shall be knights) which by no affinity with the prisoners nor otherwise are to be suspected.”1 The Statute of Gloucester, on the other hand, ordered the strict confinement, pending trial, of offenders whose guilt was apparent.2 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.”3 The writ in question was in use in 1314,4 and seems never to have been expressly abolished, but to have sunk gradually into neglect, as appeals became obsolete and gaol deliveries were more frequently held.
Later History of Appeal and Battle.
The right of private accusation was restricted, not abolished, by Henry II. and his successors. It could not be denied to an injured man who was not suspected of abusing his right. Prosecutions 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 prolonged suspense; 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.5 To obviate all risk of a double prosecution, it was necessary that the Crown should delay to prosecute until the year and day had expired. This rule was followed in 1482. Such immunity from arraignment for twelve months would have produced a worse evil, by facilitating the escape of criminals from justice. After experience of its pernicious effects, the rule was condemned by the act of parliament which instituted the Star Chamber.1
This remedied the more recent evil, but revived the old injustice: the same statute enacted that acquittal should not bar appeal by the wife or nearest heir of a murdered man. Thus, once again, a man declared innocent by a jury might find himself exposed to a second prosecution. In 1817 the British public was startled to find that a long–forgotten 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 that suggested foul play. Suspicion fell on Abraham Thornton. After indictment and trial at Warwick Assizes on a charge of rape and murder, he was acquitted. The girl’s brother, William Ashford, not satisfied by what was apparently an honest verdict, tried to secure a second trial, and claimed the appeal of felony, which the judges did not 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. Lord Ellenborough had to admit his legal right to defend himself against the appeal “by his body,” and Thornton successfully foiled the attempt to force him to a second trial, as Ashford, a mere stripling, declined the unequal contest with an antagonist of athletic build.1 The unexpected revival of these legal curiosities led to their final suppression. In 1819 a Statute abolished proof by battle alike in criminal and in civil pleas: the right of appeal fell with it.2
[1 ]See supra, pp. 84–6.
[2 ]See Leges Henrici primi, c. 69, §§ 15–16.
[1 ]See Bracton, folio 531.
[2 ]See Jocelyn of Brakelond, 50–2.
[3 ]Blackstone, Commentaries, IV. 316. Cf. Bateson, Borough Customs, I. 73, II. xxv., II. xxxiv.
[4 ]Cf. supra, p. 88, and also p. 272.
[1 ]See under c. 54.
[2 ]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.
[3 ]Madox, I. 505, has collected instances.
[1 ]Cf. Pollock and Maitland, II. 585–7, and Thayer, Evidence, 68.
[2 ]Feudal courts adopted a similar procedure in malicious 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.
[3 ]See Pollock and Maitland, II. 586.
[4 ]59 George III. c. 46.
[5 ]The early history of habeas corpus is traced by Prof. Jenks, Law Quarterly Review, XVIII. 64. The writ de odio was obsolete prior to the invention of the habeas corpus.
[1 ]Cf. Brunner, Schwurgerichte, 471.
[2 ]See folio 123.
[3 ]See Pipe Roll, 8 John, cited Madox, I. 566.
[4 ]See Rot. Pat., I. 76; Madox, I. 494. The date is 8th Nov., 1207.
[1 ]Gloucester Pleas, xli., where cases are cited.
[2 ]See Bracton’s Note–book, case 134, and cf. case 1548.
[3 ]Stephen, Hist. Crim. Law, I. 241 (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.
[1 ]Edward I. c. 11.
[2 ]6 Edward I., stat. 1, c. 9.
[3 ]13 Edward I. cc. 12 and 29.
[4 ]See Rot. Parl., I. 323.
[5 ]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 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. was that “in violation of Magna Carta” (that is, probably, of chapter 39) persons maliciously accused of treasonable words were tried before constable and marshal, and although “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, Statute 1 Henry IV. c. 14, provided that no appeals should be held before Parliament, but certain appeals might come before constable and marshal. Cf. Harcourt, Steward, 369.
[1 ]See 3 Henry VII. c. 1, s. 11: 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.”
[1 ]See Ashford v. Thornton, 1 B. and Ald., 405–461.
[2 ]See 59 George III. c. 46.