Front Page Titles (by Subject) CHAPTER FIFTY–FOUR. - Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
Return to Title Page for Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER FIFTY–FOUR. - 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).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Nullus capiatur nec imprisonetur propter appellum femine de morte alterius quam viri sui.
No one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband.
The object of this chapter was to find a remedy for what the barons evidently considered an unfair advantage enjoyed by women appellants, who were allowed to appoint some champion to act for them in the duellum, while the accused man had to fight for himself. The connection between appeal and battle, and the distinction between battle following on appeal and battle on a writ of right, have already been explained.2 In civil pleas, neither party could fight in person: champions were essential, although hired champions were condemned.3 In criminal pleas, the parties must fight in their own persons. This distinction is not so illogical as it seems at first sight, for the appellant himself, in the one case, and the champion who fought for him, in the other, were both supposed to be eye–witnesses of the facts.1
In a case of homicide, no private accuser would be heard unless he alleged that he had seen the accused actually do the deed. The stringency of this rule was, however, modified by legal fictions. The near relation, or the feudal lord, of the slain man, was treated as constructively present at his slaying. This, at least, is the most plausible interpretation of Glanvill’s words: “No one is admissible to prove the accusation unless he be allied in blood to the deceased or be connected with him by the tie of homage or lordship, so that he can speak of the death upon testimony of his own sight.”2
The rule which required an appellant to offer proof by his own body was also relaxed in certain cases; women, men over sixty, and those with broken bones or who had lost a limb, an ear, a nose, or an eye, might fight by proxy.3 The privilege accorded to women was looked on with disfavour: accordingly, the man accused by a woman might, in Glanvill’s words, elect either “to abide by the woman’s proof or to purge himself by the ordeal.”4 This option was freely used; an appellee in 1201 was allowed to go to the ordeal of water,5 while two years later when the widow of a murdered man offered to prove her accusation “as the court shall consider,” the accused “elected to bear the iron.”6 After the virtual abolition of ordeal in 1215, appeals by women were usually determined per patriam: such is the doctrine of Bracton,7 whose authority is borne out by recorded cases. Thus in 1221, a man accused by a woman of her husband’s murder offered fifteen marks for a verdict of the jurors.8
A woman’s right of accusation (even when thus safeguarded from abuse) was restricted to two occasions, the murder of her husband and the rape of her own person. Magna Carta mentions only one of these two grounds of appeal; but silence on the subject of assault need not be interpreted as indicating any intention to deprive women of their rights in such cases.1
The present chapter of the Great Charter confines itself to appeals of murder, declaring that no woman has the right to institute proceedings in this way for the death of father, son, or friend, but only for that of her husband. Hard as this rule may seem, the barons here made no change on existing law. Glanvill does not recognize a woman’s appeal save for the death of her husband:2 —“A woman is heard in this suit accusing anyone of her husband’s death, if she speak as being an eye–witness to the fact, because husband and wife are one flesh”—another example of constructive presence.3
There seems to be no authority for Coke’s hasty inference, that previous to 1215 a woman had an appeal for the death of any of her “ancestors”:4 this chapter was purely declaratory. Yet its provisions were by no means gallant. The barons were more careful to guard themselves against risk than to champion the cause of women.5
[2 ]Cf. supra, c. 36.
[3 ]Bracton, folio 151b, cites the case of a champion sentenced to mutilation of a foot because he confessed that he was paid to appear. Statute of Westminster, I. (c. 41), enacted that champions need not swear to personal knowledge. Neilson, Trial by Combat, 48–51.
[1 ]The appellant “in all cases except murder, that is, secret homicide, made oath as a witness that he had seen and heard the deed.” Neilson, Trial by Combat, 48.
[2 ]Glanvill, XIV. c. 3.
[3 ]See Bracton, II. ff., 142b, 145b; also Neilson, Trial by Combat 47, and authorities there cited.
[4 ]Glanvill, XIV. c. 3.
[5 ]Sel. Pleas of the Crown, No. 1.
[6 ]Ibid., No. 68. Cf. No. 119.
[7 ]Bracton, folio 142b.
[8 ]Select Pleas of the Crown, No. 130.
[1 ]The Act 6 Richard II. c. 6, to prevent the woman’s connivance, extended the right of appeal in such cases to a woman’s husband, father, or other near relative; but denied the appellee’s right to the option of defending himself by battle—thus proving no exception to the policy of discouraging the duellum wherever possible.
[2 ]Glanvill, XIV. c. 3.
[3 ]Fleta I. c. 33 seems to indicate the same doctrine when he speaks “de morte viri sui inter brachia sua interfecti,” although laboured explanations are sometimes attempted, e.g. Coke, Second Institute, 93. Pollock and Maitland (I. 468 n.) dismiss the phrase inter brachia sua as “only a picturesque common form.”
[4 ]See Coke, Second Institute, p. 68, and contrast Pollock and Maitland, I. 468. John’s justices rejected in 1202 a woman’s claim to appeal for her father’s death, and some ten years later two claims for the death of sons. See Select Pleas of the Crown, Nos. 32, 117, and 118; yet Gloucester Pleas (No. 482) records n 1221 a woman’s appeal for a sister’s death.
[5 ]A peculiarity of wording should, perhaps, be noticed. It restricts explicitly not appeals, but “arrest and imprisonment” following on appeal.