Magna Carta: A Commentary on the Great Charter of King John / With an Historical Introduction

CHAPTER THIRTY-FOUR.

Breve quod vocatur Precipe de cetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam suam.

In extorting from John a solemn promise to restrict the use of the particular writ here referred to, the barons gained something of infinitely greater value than a petty reform of court procedure; they committed their enemy to a complete reversal of a line of policy vigorously and consistently pursued for at least half a century. The process by which the jurisdiction of the king’s courts was steadily undermining that of the feudal courts was now to be suddenly arrested. Magna Carta by this apparently inoffensive clause was grappling in reality with an urgent political problem of the day, fraught with tremendous practical issues alike for king and barons. This can only be understood in connection with the technical details on which it hinges.

I. Royal Writs and the Feudal Jurisdictions. The class of writs, called from their initial word “Writs praecipe,” was a large one, and freely used by the Crown for issuing peremptory orders of various kinds to its officers and others. This provision of Magna Carta had special reference to one type of these writs only, the so-called praecipe quod reddat.^[723] These were intended to inaugurate, before the king’s justices, pleas for determining the ownership of property either by battle or by grand assize—preferably the latter. They were called “Writs of Right,” because they treated of questions of title, not merely questions of possession.

The form of a praecipe quod reddat, as actually issued from the Chancery of Henry II. (who invented it), is given by Glanvill, and its terms illustrate the insidious methods by which the Crown encroached on feudal jurisdictions.^[724] The writ was directed to the sheriff, and began bluntly:—“Command” (praecipe) A. “to give back” (quod reddat) to B. a piece of ground there specified, or alternatively, “to explain why he had not done so” (ostensurus quare non fecerit). The real object does not, however, appear upon the surface. It was by no means intended that the man to whom the command was issued, should abandon his claim without discussion. He would naturally take the alternative allowed him, namely, appear before the king’s justices and there “show cause” why he had not obeyed the order, by proving (if he could) a better title to the property in dispute than that alleged by the rival claimant. The writ, which on the surface reads merely as a summary and final command to hand over the estate to another, is really an “original writ” commencing a litigation in the king’s court. One important effect of its issue was that all proceedings instituted in inferior tribunals must immediately stop.

The feudal lord, in whose court baron the plea would naturally have been decided, was thus robbed by the king of his jurisdiction. With it, he lost also authority over his tenants, and numerous fees and perquisites. The writ praecipe was thus mainly an ingenious device for “evoking” a particular cause from the manorial court to the king’s court.^[725]

Henry II., in inventing or systematizing the legal procedure known as “the writ process,” because its leading feature was that it forbade any action to be begun without a royal writ, had two objects in view. While reforming by its instrumentality the entire administration of justice in England, the king hoped by the same means, to destroy gradually the feudal privileges of his magnates. He intended, step by step, to draw into his own courts all pleas relating to land. Questions of property were to be tried before his justices, by combat or, at the defendant’s option, by the grand assize; questions of possession (without any option) by the appropriate petty assize. The barons showed no desire to dispute the Crown’s assumption of a monopoly over the petty assizes; indeed they cordially acquiesced in this by the terms of chapter 18 of the Charter. The grand assize was another matter; they refused to be robbed of their right to determine, in their own courts baron, proprietary actions between their own tenants. Indeed, for such wholesale extension of the king’s jurisdiction over pleas of land, Henry II. had absolutely no precedent. He had made the Crown strong and then used its power for his own aggrandizement. The king’s courts had increased their authority, as a distinguished American historian has expressed it, “by direct usurpation, in derogation of the rights of the popular courts and manorial franchises, upon the sole authority of the king.”^[726]

Now, the chief instrument devised by Henry for effecting such usurpations was precisely this particular form of the writ praecipe (or Writ of Right).^[727] Tenants whose titles were challenged gladly purchased such writs, as the only way to escape trial by combat; and John frequently issued them to the prejudice of feudal lords, whose jurisdiction was thus curtailed. The barons in 1215 considered this a grievance; and Magna Carta in demanding its redress deliberately attempted to arrest the process of royal usurpation. The tide must be turned back; the system of feudal justice, now fast becoming obsolete, must in its entirety be revived. Each freeman or baron must be left without competition as the sole source of justice to his own tenants in all pleas of land, unmolested by these new-fangled writs of right. It was not intended, of course, to abolish completely the extensive and useful class of writs praecipe; but merely to prevent the Crown using them as an engine of encroachment upon manorial jurisdictions.^[728] The king might keep his own court and issue writs to his own tenants; but let him respect the courts of others. For the future, such writs must not be issued “concerning any tenement whereby a freeman may lose his court.” Writs praecipe might be freely used for any other purpose, but not for this. This one purpose, however, was exactly what had specially recommended it to the great king who had invented it.

The present chapter must, therefore, be regarded as containing one of the most reactionary provisions of the entire Charter. The barons had, at last, succeeded in compelling John to promise a complete reversal of a central part of the deliberate policy of his father.

Here, then, under the guise of a small change in legal procedure, was concealed a notable triumph of feudalism over the centralizing policy of the monarchy—a backward step, which, if given full effect to, might have ushered in a second era of feudal turbulence such as had disgraced the reign of Stephen. We are told on high authority that John’s acknowledgment of "the claims of the feudal lord to hold a court which shall enjoy an exclusive competence in proprietary actions"—was one which “Henry II. would hardly have been forced into.”^[729] That may well be; but John had already more than once rejected this proposal with violence. In 1215, he could no longer strive against the inevitable, and agreed under compulsion to provisions which he had no intention to keep. The concession, although insincere, was nevertheless an important one. The substance of chapter 34 was repeated with some trivial verbal alterations in all future issues of Magna Carta.^[730]

II. Influence of this Provision on later Legal Development. One important question still remains: Was this provision observed in practice? The answer is partly Yes, but chiefly No. Its letter was stringently enforced; but its spirit was evaded. (1) The Chancery, in obedience to Magna Carta, ceased to issue this particular form of writ in such a manner as to cause a freeman “to lose his court.” It was still issued to Crown tenants; but strictly denied to all under-tenants, who were thus left to find redress at the feudal court of the magnate from whom they held their land.^[731] The measure thus forced on the Crown in the selfish interests of the baronage inflicted hardship on tenants of mesne lords, in whose faces the doors of the king’s tribunals, opened to them by Henry II., were once more closed in all pleas touching their freeholds. In such cases the court baron of their lord was now their only source of justice, and in that court they could not get the benefit of the improved methods of royal procedure. In particular, the grand assize was a royal monopoly. The magnates, indeed, desired to adopt it, but this was rendered difficult by an obstacle which the Crown made the most of.^[732] They had difficulty in getting together twelve knights willing to act as jurors; and they could not force them to give a sworn verdict against their will. The king might compel; but a mesne lord could only persuade. Men of the required status objected to the waste of time, and dreaded the danger of being punished for false verdicts, inseparable from the duty of serving on a grand assize. Whatever hopes the barons may have entertained of overcoming such difficulties were disappointed. In 1259 the Provisions of Westminster declared that freeholders should not be compelled to swear against their will "since no one can make them do this without the King’s warrant."^[733] It was the deliberate policy of Edward I. to exaggerate all such difficulties, putting every obstacle in the way of private courts, until he reduced their jurisdictions to sinecures.^[734]

(2) While the letter of Magna Carta was strictly kept, its spirit was evaded. It was impossible to give loyal effect to an enactment which went directly counter to the whole stream of progress. Manorial justice was falling fast into disrepute and abeyance, while royal justice was becoming more efficient and more popular, and was soon to rid itself of all competitors and obtain a monopoly. Under-tenants, deprived of access to the king’s court by the direct road of the writ praecipe, sought other and more tortuous modes of entrance. Legal fictions were devised. The great problem was how to evade Magna Carta without openly infringing it. The king’s justices and would-be litigants in the king’s courts formed a tacit alliance for this end, but had to proceed by slow and wary steps, in the teeth of bitter opposition from the powerful owners of seignorial courts. The process adopted consisted of a series of formal changes in the technical procedure of the king’s courts. Its key lies in the ingenious original (or originating) writs invented by Crown lawyers, which really effected one thing while professing to effect something quite different. These new writs were known as writs of entry and came half-way between writs of right (or writs praecipe) and the petty assizes; half-way between writs commencing actions dealing with title (and therefore attacked by chapter 34 of Magna Carta) and writs dealing with possession (and therefore welcomed by chapter 18). Writs of entry were thus, from the point of view of the magnate with his private court, wolves in sheep’s clothing. They professed to determine a question of possession, but really decided a question of ownership. At first the pleas to which they could be applied were few and special. Steadily new forms of action were devised to cover almost every conceivable case. The process of evolution was a long one, commencing soon after 1215, and virtually concluding with chapter 29 of the Statute of Marlborough, or rather with the liberal construction which Crown lawyers placed upon that statute in the following reign.

Edward I., at the height of his power, and eager to set his house in order, shrank from an open breach of the Great Charter, gladly adopting subtle expedients to cheat mesne lords out of the rights secured to them by the present chapter. In Edward’s reign, then, the legal machinery invented for this purpose was brought to perfection, so that thereafter no action relating to freehold was ever again tried in the courts baron of the magnates. All such pleas were, in direct violation of the spirit of Magna Carta, decided in the courts of the king.^[735]

The claimant, then, had no need to infringe the prohibition against the writ praecipe when he could obtain another writ, equally effective, under a different name. A writ of entry was, indeed, to a peaceable plaintiff, infinitely preferable to a writ praecipe, which could only be issued to one prepared to offer battle, the option of accepting lying with his adversary. Crown tenants, even, who could obtain the writ praecipe, came to prefer the more modern substitute; and clause 34 of Magna Carta was thereafter virtually obsolete.

One of the indirect effects of the clause was of a most unfortunate nature. The necessity it created for effecting reforms by a tortuous path did great and lasting harm to the form of English law. Legal fictions have indeed their uses, by evading technical rules of law in the interests of substantial justice. The price paid for this relief, however, is usually a heavy one. Complicated procedures and underhand expedients have to be invented, and these lead in turn to new legal technicalities of a more irrational nature than the old ones. It would have been better in the interests of scientific jurisprudence if so desirable a result could have been effected in a more straightforward manner. The authors of Magna Carta must bear the blame.^[736]

Una mensura vini sit per totum regnum nostrum, et una mensura cervisie, et una mensura bladi, scilicet quarterium Londonie, et una latitudo pannorum tinctorum et russetorum et halbergectorum, scilicet due ulne infra listas; de ponderibus autem sit ut de mensuris.

This chapter re-enacted an important ordinance of Richard I., usually known as the Assize of Measures, but sometimes as the Assize of Cloth. That ordinance, the exact date of which is 20th November, 1197, was, according to modern conceptions of the proper sphere of government, partly commendable and partly ill-advised. It showed, on the one hand, a praiseworthy desire to set up definite standards of weights and measures, uniform throughout all parts of England. It strove thus to overcome the serious inconvenience experienced by traders, who met with varying standards as they moved with their wares from place to place. What was of more importance, the assize sought to obviate also the frauds frequently perpetrated upon buyers by unscrupulous merchants under the shelter of ambiguous weights and measures. The London quarter must, therefore be used everywhere for corn; and one measure for wine or beer. So far good. On the other hand, the ordinance of Richard went much further than modern ideas of laissez faire would tolerate. In particular, legitimate freedom of trade was interfered with by the cloth regulations reported by Roger of Hoveden.^[737] No cloth, he tells us, was to be woven except of a uniform width, namely, “two ells within the lists.”^[738]

Dyed cloths, it was provided, should be of equal quality through and through, as well in the middle as at the outside. Merchants were prohibited from darkening their windows by hanging up, to quote the quaint language of the ordinance, “cloth whether red or black, or shields (scuta) so as to deceive the sight of buyers seeking to choose good cloth.” Coloured cloth was only to be sold in cities or important boroughs. Here we have, apparently, a sumptuary law meant to ensure that the lower classes went in modest grey attire. Six lawful men were to be assigned to keep the Assize in each county and each important borough. These custodians of measures must see that no goods were bought or sold except according to the standards; imprison those found guilty of using other measures, whether by their own admission or by failure in the ordeal (confessus vel convictus); and seize the chattels of defaulters for the king’s behoof. If the custodes performed their duties negligently they were to suffer amercement of their chattels.^[739] Richard’s Assize of Measures was supplemented in 1199 by John’s Assize of Wine, which tried to regulate the price of wines of various qualities,^[740] an attempt not repeated in Magna Carta.

The same author who gives us the text of the ordinance of 1197 tells us also that its terms were found to be too stringent, and had to be frequently relaxed in practice.^[741] This was done in 1201. The king’s justices, we are told, wished to seize the cloth of certain merchants on the ground that it was less than the legal width. They compromised, however, by accepting a great sum of money “to the use of the king and to the damage of many.” Thus Hoveden denounces what he regards as an unlawful bargain between the justices and the traders for injuring buyers by evading the strict letter of the ordinance.

Many examples of evasion may be found in the Pipe Rolls both before and after Magna Carta. The justices, indeed, were usually more bent on collecting fines for its breach than on enforcing the Assize. In 1203 two merchants of Worksop were amerced each in half a mark for selling wine contrary to the Assize, while the custodians of measures of the borough were also mulcted in one mark for performing their duty negligently—an exact illustration of the words of the ordinance.^[742] In the same year a fine of one mark was imposed on certain merchants “for stretching cloth,” in order, presumably, to bring it to the legal width.^[743] Merchants frequently paid heavy fines to escape the ordinance altogether.^[744]

When the barons in 1215 insisted upon John enforcing his brother’s ordinance in all its rigour, they took a step in their own interests as buyers, and against the interests of the trade guilds as sellers. Although this provision was repeated in all subsequent charters, it seems never to have produced much effect. The difficulty of enforcing such provisions in their strictness was great, and evasion continued. One example may suffice. In the second year of Henry III.^[745] the citizens of London paid 40 marks that they might not be questioned for selling cloth less than two yards in width. Here is an illustration of the practice of the judges to which Hoveden had objected, and which Magna Carta had apparently failed to put down. Sometimes, however, the provisions of Richard’s Assize of Measures and of John’s Assize of Wine were still enforced. In 1219 a Lincolnshire parson, with a liberal conception of the scope of his parochial duties, had to pay 40s. for wine sold extra Assisam.^[746] Parsons, apparently, might engage in trade, but only if they conformed to the usual regulations.

CHAPTER THIRTY-SIX.

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

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.

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]

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.

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]

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]

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]

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]

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]

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]

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.

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. ItIt 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]

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]

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]