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.

Footnote 753:

Cf. _supra_, 107–9, and also 158-163.

Footnote 754:

Some particulars are given under c. 54.

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]

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.

Footnote 756:

Madox, I. 505, has collected instances.

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]

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_.

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]

Footnote 762:

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

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]

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.

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]

Footnote 766:

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

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]

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.

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.

Footnote 771:

See _Rot. Parl._, I. 323.

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]

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