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.

Footnote 747:

See _supra_, pp. 103-6.

Footnote 748:

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

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]

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.

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