Nihil detur vel capiatur de cetero pro brevi inquisitionis de vita vel membris, sed gratis concedatur et non negetur.
Nothing is to be given or taken in future for a writ for an inquest concerning life or members, but it is to be given without payment and not denied.
Clause 36 was primarily concerned with access to jury trial for people accused of felony, that is, of serious breaches of the king’s peace, and to the writ, or writs, which enabled a suspect to secure it. It appears in the context of a group of clauses mainly concerned with legal issues. Adapted from number 26 of the Articles of the Barons, its most notable addition, the requirement that nothing was to be given or taken for the writ in question, was doubtless intended to stress the need for its being made freely available to everyone who applied for it, perhaps by ensuring that nobody had to pay for it after, as well as before, the proceedings it initiated. The presence of this clause, both in the Charter and among the Articles, might seem surprising, given its closeness in both documents to the king’s undertaking not to sell, deny or defer justice to anyone (Article 30, Clause 40), which appears to offer a similar guarantee. There may have been some recent scandalous case or cases, no longer identifiable, which had aroused concern about the king’s misuse of his position as fount of justice, and therefore made specific provision against a particular abuse seem essential. But it is no less possible that the inquests referred to were regarded as one of the benefits of Angevin legal adminstration, like the petty assizes (clauses 18-19), and were named as such in order to ensure that they were made as widely available as possible.
The writ referred to in Clause 36 is notably ill-defined, quite possibly deliberately. In fact no writ `concerning life or members’ is mentioned in contemporary sources, and although by 1215 the ground covered by that expression was increasingly monopolised by one particular writ, ordering the investigation of accusations allegedly motivated by hatred, the development of that writ, and also its application, may have been a slow and uncertain process. By the time of Magna Carta charges of felony could be made in two ways.1 The Assize of Clarendon of 1166 had either introduced or refurbished a system of public prosecution of serious offenders through charges brought by juries of presentment. But although as early as 1170 the instructions for the Inquest of Sheriffs had included investigating whether suspects had been corruptly or maliciously (odio) accused under the Assize,2 inquests into such charges which had been initiated by writs are not recorded before John’s reign, when on a very few occasions suspects described as having been arrested de retto, or because they were rettati, paid for inquests as to whether they had been charged out of malice.3 Those accused in such cases, which had presumably originated with presenting juries, also faced the prospect of proving their innocence by undergoing an ordeal, but one involving immersion in water or holding a red-hot iron rather than battle. But although the penalty for failure was the same in every case, namely execution or mutilation, it may be that the men and women accused by juries usually came from a lower social stratum than those involved in appeals, and were therefore not thought worth the Charter’s attention. Or perhaps the `many and varied inquests and interrogations’ through which the legal treatise known as Glanvill expected the king’s justices to establish the trustworthiness of `public notoriety’ were still regarded as a sufficient safeguard against abuse.4 For although the Charter does not in fact say so, it is clear that Clause 36 was essentially concerned with the alternative to the jury of presentment, namely the appeal of felony, a personal action made in a prescribed form which alleged that a serious crime had been committed against the accuser, or – in cases of homicide – against someone close to him, and except in particular circumstances, notably when either party was a woman, offered to prove the guilt of the accused by judicial combat. The king’s justices increasingly looked askance at combat as a method of proof, however, and by the late twelfth century it had become possible for a litigant appealed of felony to purchase a writ ordering the holding of an inquest, made by twelve jurors who would investigate the facts before returning a verdict which would effectively settle the case.
It is possible that such inquests were being held by the late 1170s – in 1178 one Nicholas de Offeton was recorded as owing half a mark `because he was convicted of having appealed Thomas Fagflur out of hatred’5 – and certain that they constituted part of the system of criminal justice by the early 1190s.6 But they were referred to under a variety of terms, and it is impossible to be sure that the same processes were always used to initiate them. This can be clearly seen in the long-running proceedings which resulted from an appeal made in Northamptonshire, in which Richard son of Henry of Glendon was accused of killing his near-namesake Richard of Glendon.7 Proceedings began no later than July 1198, with an appeal against Richard son of Henry by the dead man’s widow and brother. Two other men failed to come into court and were outlawed, but Richard surrendered and was imprisoned, and it was presumably on his initiative that Archbishop Hubert Walter, who was then also justiciar of England, ordered an inquest `if he was guilty or not’. The inquest found that he was not guilty, so Richard was released under surety to attend the next eyre, at which he duly appeared and was acquitted again. But this did not satisfy the appellors, who went to Westminster and presented another royal writ for holding an inquest, by which Richard was acquitted once more, after which the case was likewise remanded to the next eyre, where an inquest held under oath confirmed the verdicts of the previous three.
One of these inquests may have been the one recorded in Michaelmas term 1199, at which twelve Northamptonshire men, summoned to investigate the death of Richard of Glendon, and also of that of Richard of Desborough (not previously mentioned), named two men as responsible, reported that these had been outlawed, and stated that they did not suspect the other Richard of Glendon, appealed by his alleged victim’s widow, Sibyl.8 This verdict notwithstanding, proceedings soon began again, for in May 1200 Sibyl returned to Westminster and once more appealed Richard of killing her husband, claiming that he had done the deed with an axe which she had herself subsequently extracted from Richard’s head. At the same time Richard of Desborough’s widow Melisent likewise appealed Richard son of Henry of her husband’s death. Richard son of Henry came into court once more, denied the charge, and described how he had already been appealed of the death of her husband by Melisent, who had obtained a royal writ ordering an inquest into the death. This had been held before justices itinerant, and he offered the king ten marks `for having the verdict of the knights by whom the inquest was made’ (presumably this was one of the two inquests already referred to as having taken place at eyres), while also claiming that `she appeals him out of hatred and spite’. He did not, however, petition for the case to be investigated on the grounds of its having been initiated in malice, but asked instead that if he was not permitted to have the earlier verdict, then (as it appears – the wording of the record is less than lucid) another jury should be convoked to swear to that verdict, for which again he offered ten marks to the king.
No further proceedings are recorded until October 1207, when proceedings began once more, now with Richard of Glendon’s son William as the appellor. They had started in Northamptonshire county court, but Richard son of Henry paid one mark to have the case transferred to Westminster, and there he came back into court, and told how on his previous appearance he had been acquitted for the fifth time, which may indicate that the earlier verdict had indeed been transmitted in some form to Westminster, as he had sought. Perhaps it had been construed as relevant only to Melisent’s appeal, for it did not suffice to end the proceedings against Richard, who offered a further fifteen marks for having yet another inquest. Either this cleared him for the sixth and last time, or the appellors finally abandoned their attempts to convict him, for in 1208 the pipe roll recorded the ending of the case, with a settlement made under the auspices of King John in person, at a cost of twenty marks which were paid by both parties – Richard contributed fourteen and William six. The agreement took the form of a transfer of land, with Richard granting two virgates in Glendon to William.9 In proceedings which had lasted for at least ten years, either three or four inquests were recorded as having been held as directed by royal writs, but although the term `hatred and spite’ was used once in pleading, there is no clear evidence that it constituted the substance of either the writs or the inquests – the only identified writ defined its terms of reference as those of guilt and innocence. Two of the writs, moreover, were said to have been obtained by the appellors, who presumably hoped to endanger the life or limbs of Richard son of Henry, not to protect them.
A number of payments for writs are recorded which make no mention of malice. In 1200, for instance, Walter of Barethorpe paid half a mark for an inquest `as to whether he was appealed unjustly or not of rape’,10 and a year later Stephen the forester, appealed of burgling a house and trying to kill its owner, obtained a writ from the justiciar ordering an inquest in Somerset county court as to whether or not the accusation was true.11 In 1206, in another Northamptonshire case, Hugh son of Emma gave half a mark `for a writ for an inquest as to whether he is guilty of the death of Ralph of Whitfield or not’,12 and in 1212 William Esturmi gave five marks for a writ described in almost identical terms, concerning the killing of Thomas of Buxhall.13 In 1207 and 1208 at least three payments were made pro habenda inquisicione de appello.14 And even when hatred was alleged, it may not at first have always been clear to litigants who should, or should not, have been motivated by it. When in May 1200 Geoffrey de Hosbringes appealed James de Hage of robbing him and wounding him with a knife, he concluded his accusation by alleging that James had done this `out of ancient hatred’, only for James in his turn to claim that the appeal was grounded in malice, with reference to the `ancient hatred’ to which Geoffrey himself had referred.15
There can be no doubt that what became the writ de odio et atia, ordering an inquest to discover whether an appeal had been made out of malice, was in the years on either side of 1200 the one most commonly used to initiate investigations of the truthfulness of accusations of felony, a development which can only have been furthered by its also beginning to be adapted to serve the same purpose where charges brought by presenting juries were concerned. But although it was also the one most often referred to in the records of judicial proceedings, the examples cited above, which several times occur among other payments for inquests and writs which were specifically concerned with malice, may indicate that it was not the only one, and that the writ de odio et atia served rather as the mould into which a number of what may be described as investigatory writs were poured, finally absorbing these into itself.
Although the form which the writ de odio et atia took in the period before Magna Carta can only be deduced from what appear to be paraphrases of it in the records of proceedings which it initiated, it would appear that it was already developing towards the form it took when first recorded in the mid 1230s.16 When in 1208 William son of Norman appealed the three sons Ascelina de Waterville of wounding and robbing him, and Ascelina herself of ordering the attack, the appellees obtained a writ to the sheriff of Cambridgeshire ordering him to hold an inquest as to whether the appeal had been made `for just cause and because they are guilty of it, or through spite and hatred and because he withdraws the customary services which he should perform for the tenement he held of him [sic] ...’.17 Here, as later in the thirteenth century, a jury was to investigate both the merit of the appeal and the base motive allegedly behind its making. But since shortly afterwards an inquest in Suffolk was directed to discover only `if Roger Cokesie appealed Godfrey de Louvain of breaking the king’s peace for hatred and malice or because this Godfrey is guilty therein ...’,18 it would appear that a standardised formula had yet to be agreed upon.
The purpose of the writ, however formulated, was the substitution of a jury’s verdict for trial by battle on appeals of felony, on the grounds that the latter had been unworthily made.19 Straightforward hatred in direct response to injury might have been allowable as a proper motive for bringing an appeal, but not when it was contaminated by spite (atia) or envy (invidia), and least of all when the issue was to be decided by the judgment of God, who embodied before all others the qualities of truth and justice which writs and inquests repeatedly contrasted with the malice alleged against false accusers.20 That judgment might be invoked to cover a wide range of offences. The writ de odio et atia subsequently came to be confined to allegations of homicide, but in the early thirteenth century there were many other felonies whose conviction might result in hanging or mutilation – not only homicide and theft, but also rape, wounding, assault and simple breach of the king’s peace. Among the miracles of St William of York in around 1177 was the restoration of sight to a man named Ralph, who had been appealed of breach of the king’s peace and blinded following his defeat in a judicial duel.21 A great many appellees, as well as the king’s justices (though seemingly not King John, who appears to have enjoyed watching trials by combat), must have been glad to find a substitute for a means of proof in which the battle was so plainly likely to favour the strong, and whose consequences could be so terrible for the losers.
Although the result of a favourable inquest under a writ de odio et atia had by the later thirteenth century become a grant of bail, whereby appellees (or, increasingly, those indicted) were freed to sureties who guaranteed their future appearance before royal justices, malicious accusations before 1216 only occasionally provided justification for bail, although a few cases are recorded. In 1205, for instance, three Yorkshire people gave three marks for an inquest `whether Elias de Bridehale appeals them through spite or because they are guilty, and that if they are not guilty they may be delivered to the custody of honest men ...’,22 and a year later Hugh son of Emma, charged with the death of Ralph of Whitfield, was described as owing one mark for his release to pledges until the next Northamptonshire eyre, and a further 6s. 8d. for a writ for an inquest as to whether he was guilty or not.23 A number of other payments to be released to bail are indeed recorded, sometimes at very high prices, but they are hardly ever associated with inquests or writs, being usually enrolled in terms suggesting that those involved had simply bargained with the king for this favour. Thus in 1203 Alfred of Glentham, appealed of homicide, paid five marks for his own and his brother’s release to the custody of two or three Lincolnshire knights, but when he appeared in the Curia Regis nothing was said to suggest that he or anyone else regarded the accusation against him as having originated in malice.24 It is noteworthy that when at precisely this time the Londoners claimed the privilege of bail for suspected killers, stating that `in London no one ought to be put in prison as long as may be able to find suitable pledges ...’, they underlined the exceptional nature of this right when they declared that `if the suspect were found elsewhere he would not be let go in spite of producing pledges, and so he would be put in prison until king or justices deliver him ...’.25
Glanvill had declared that nobody appealed of homicide should be released to sureties before his case came to trial,26 and when in 1204 Richard Ruffus, appealed by Alexander son of William of fatally wounding the latter’s brother Bartholomew, pleaded that the king had ordered an inquest as to whether Alexander’s appeal had originated in malice, he was accordingly sent back to prison until it could be held.27 This position was upheld by King John himself, when in November 1207, possibly in response to a recent case which had led to an ex-sheriff of Somerset and Dorset being amerced of ten marks `for men appealed of homicide released to pledges without warrant from the king or justiciar’, he commanded distincte that nobody appealed of homicide was to be released on bail except on his own specific instructions.28 Indictments may have been treated differently, for a year later Geoffrey of Compton, a Gloucestershire man accused (rettatus) of homicide , was recorded as owing three palfreys (the equivalent of £10) `so that he may be in the custody of lawful men until the first session when justices come to those parts, and then stand to right’29 – possibly the personal nature of the appeal meant that there was a greater danger of feud and disorder if the appellee was not kept out of the way of his accuser – and in any case money, to a king with John’s urgent needs, could always open a prison door. In 1212 William de Edfunt, appealed of killing Gamel son of Hugh de Dive, was recorded as owing ten marks `so that he may be delivered to the keeping of honest men’.30 But such a concession was very rarely recorded, and two years later it was only on the orders of the justiciar (acting on the king’s behalf because John was abroad), that two suspected killers were released to pledges, even though both had been cleared by inquests held before a sheriff.31
All the signs are, in fact, that in John’s reign the purpose of an inquest authorised by writ was to secure the outright acquittal of the person appealed. In this respect the writ ran parallel with another, and similar, means of attaining the same end, namely the exception de odio et atia32 – indeed, the dry phraseology of the judicial records sometimes makes it difficult to tell the writ and the exception apart. An exception was a plea intended to invalidate an appeal. It was made in court once proceedings had begun, and seems to have been most often employed at eyres, where an appellee wishing to challenge the accusation against him could allege malice and – as usually happened – offer payment for an inquest to substantiate his claim, knowing that the justices could quickly have a jury summoned which could decide the matter. Thus when Eudo of West Ashby was appealed of assault and robbery by Robert the nephew of Eborard at the 1202 Lincolnshire eyre, he was probably presenting an exception when he denied the charge and offered 20s. `for having an inquest whether he appeals him for a just cause or out of hatred and spite.’ The offer was accepted, a jury summoned and Eudo’s claim upheld, leading to the annulment of the appeal and to Robert’s being taken into custody.33 Not until around 1230 did the king take over the task of prosecuting an invalidated appeal, before then annulment meant acquittal. A writ de odio et atia, by contrast, largely circumvented the technicalities, to concentrate on the question of the appellee’s guilt or innocence, upon which a jury could deliver a decisive verdict.
It would be an exaggeration to say that this was always the case, and that an allegation of malice invariably led to, or even meant, jury trial of only the issue of guilt. It may be that a defence de odio et atia sometimes enabled jurors to clear a suspect who had killed by accident or in self-defence, as it commonly did later in the thirteenth century, but although pardons could be granted on such grounds, before 1216 as well as afterwards,34 there is no evidence for juries acting in this way in John’s reign. Perhaps it was felt that the question of intent was best left to the judgment of God, whereas the processes leading up to the moment when God spoke were capable of contamination by malign purposes which human agencies could investigate and expose. Possibly, too, the ways in which allegations of malice were inquired into were still, in the early years of the thirteenth century, too close to their point of origin for jurors to be prepared to depart from them and shape them to other purposes.
What is clear is that juries did sometimes directly address the question of malice and find it unconvincing, even when the grounds existed for upholding an appellee’s claim. In 1203 Henry Engaine began an action against Robert de Waterville in Northamptonshire county court, and then paid to have it transferred to Westminster, where in November he appealed Robert of assault and robbery at Sibberton and offered battle by way of proof.35 Robert denied the accusation, and offered one mark `for having a lawful inquest by such men of the country as are not the abbot of Peterborough’s men whether the appeal is true or spiteful ...’. He was clearly applying for a writ ordering an inquest to be held in Northamptonshire, for the litigants were instructed to return to Westminster in the following January to hear the jury’s verdict, which was that the appeal had not been grounded in malice. On the face of it this was a surprising judgment, in that Engaine and Waterville were neighbouring landowners who were plainly at loggerheads, in a property dispute which also gave rise to an action of novel disseisin, and their quarrel lasted for several years, being only concluded by a settlement highly favourable to Engaine in the summer of 1208. Given this background to Engaine’s appeal, it would have been perfectly reasonable for the jurors to decide that it had been made out of hatred for Waterville, but they chose not to do so. Perhaps Waterville’s attack on Engaine had been so blatant that the allegation of malice in the resulting appeal could not be sustained, even though it clearly formed part of this dispute. Or possibly Waterville was already offering a settlement to the dispute which the jurors felt was inadequate, and therefore dismissed the allegation of malice in order to enable the appeal to continue and Engaine to demand better terms. In either case, the jurors did not give a verdict on the truth of the accusation but focussed instead on the motives behind it, as the writ nominally required them to do.
They were not unique in this, for in other cases jurors showed that they had taken the possibility of malice seriously, and investigated it as such, as, indeed, they can sometimes have had little option but to do, given the detailed objections which some appellees made. When in 1212 Ralph son of Gunnilda claimed that Robert of Sibson and others had assaulted and robbed him outside Yaxley in Huntingdonshire, Robert’s response, in claiming that the action had been brought out of malice arising from a plea between his nephew and Robert’s lord, and from Robert’s own actions as serjeant of the hundred in taking a distraint from Ralph, was so detailed as to make it inevitable that any consequent inquest would focus on this defence (unfortunately there is no surviving record of the proceedings which followed).36 In other cases juries discovered for themselves the motives underlying appeals. Thus at the 1203 Shropshire eyre the Bradford jury dismissed Richard Wygan’s appeal against William the reeve of Ercall, finding that `he appeals him out of spite and to have some land which he claims against him ...’,37 and in 1208 a Yorkshire jury found that Marmaduke of Thwing, appealed of homicide by Lambert of Watton, was `appealed for malice on account of some corn.’38 In 1206 justices in Lincolnshire heard an appeal brought by Martin son of Ailmer and his wife against three men, who, they alleged, had killed their son Walter. The appellees paid three marks for an inquest as to `whether they appeal them out of spite or because they are guilty ...’, after which a Lincoln jury acquitted them.39 But the verdict said nothing about malice, instead quashing the appeal because the appellors could not claim to have witnessed their son’s death, as in strict law they should have been able to do. Walter had in fact drowned by falling into the River Witham from a boat in which he had been travelling with the appellees, and although the jurors found no reason to convict the latter, they may well have felt that the appeal was not unreasonably brought, and that there was no reason to find that it had originated in malice.
Although juries sometimes responded to a claim that an appeal had been made out of malice by stating simply that this had been the case - `Et inquisitum est per legales homines quod athia est ...’, as a Buckinghamshire jury returned in 120640 – it is more likely that on these and other occasions they treated the essential issue as one of guilt or innocence, as, indeed, they were effectively instructed to do, when they were required to decide whether the appellee was guilty or had been appealed out of hatred. In such cases the allegation of malice furnished an excuse for a straightforward verdict, which was not necessarily one of acquittal. In 1201 a Hertfordshire jury, summoned to investigate whether the appeal of robbery against Richard le Frere had been made `through hatred only or if Richard is guilty of it’, returned that they believed him to be guilty.41 But that they should have sometimes provided more information than they had apparently been asked for, or acted in seemingly unpredictable ways, may indicate that procedures under the writ were still not fully worked out. Litigants appear to have been aware of the fluidity of the law, and sometimes made provision accordingly. When John son of Thorald of Edlington appealed Andrew of Edlington at the 1202 Lincolnshire eyre of driving his father from his home, robbing him and ill-treating him so that he later died, Andrew’s response was to give ten marks `for having a speedy judgment and for having an inquest whether this appeal was made for a just cause or from hatred and spite, and for having licence to make an agreement ...’, and the case finished with both parties putting themselves in the king’s mercy.42 Six years later the Devon magnate Hugh Peverel, who was probably acting for two of his tenants, paid ten marks `that the sheriff should have it inquired whether Walter son of John appeals Daniel de Numelande of the death of his brother out of hatred and spite or because he is guilty of it, and if the inquest returns that he is not guilty, that they may have licence to make an agreement together ...’.43 A verdict of acquittal might not yet be enough to bring an action entirely to an end, a formal settlement between the parties might prove necessary as well (as it did, for instance, in the case of Richard son of Henry of Glendon).
Weakening an appellor’s case so that he became willing to settle with the appellee, without the latter necessarily facing either a duel or jury trial, may from the first have been one of the ancillary purposes served by the writ de odio et atia – in 1195 Matthew son of Bela accounted for 31s. 8d. `for licence to settle concerning appeals made out of hatred’.44 It could also provide a means of delaying proceedings, the better either to induce the appellor to abandon his action or to make him more amenable to a settlement. The inquests held under the writ could detect exaggerations as well malice, though the two may sometimes have been equated. When Alan of Mortham appealed William son of Roger at York in 1208, accusing him of assault and wounding, William paid one mark for an inquest, which led to the coroners disclosing that Alan had not shown them a wound, as the protocols of the appeal required, but only `a little healed scratch’, and on these grounds it was attested that `this appeal was made out of spite’.45 And it could occasionally provide appellees with a way of striking back at appellors whose own misdeeds could be brought to light by an inquest. The appeal made by men named Martin and Paul against Hervey son of William at the 1201 Cornwall eyre, alleging arson and the abduction of a serf, resulted in the jurors finding that the appeal was malicious and that the appellors were suspected of burglary and robbery.46
The sums paid for writs or inquests varied considerably, even though the guiding principle, in this as in other matters, was no doubt the relationship between the king’s needs and the subject’s means. As a rule the cost of a writ or inquest was not very great, often only half a mark, and few cost more than 40s., although those which did might cost considerably more. In 1194 William de Ros offered ten marks for having a jury from two counties to inquire whether or not he had been maliciously appealed of killing three people and wounding others;47 in this case the seriousness of the alleged offences may have raised the price, as it may also have done for Ralph son of Ralph, who gave the same sum in 1208 `for an inquest into the appeal’ in which James of Chichester accused Ralph of robbing, wounding and attempting to kill him.48 But that was only half the amount which six men offered in 1213 for an inquest into the appeal which Alice, the widow of Elias of Ipswich, had brought against them for killing her husband,49 while John de Daiville, probably a member of a North Yorkshire gentry family, agreed to pay fifty marks in 1207 `for having an inquest whether William de Barton appealed him out of hatred or not, and if he is guilty of the forest offence he imputed to him or not ...’.50 Walter de Euermue, appealed of robbery and breach of the king’s peace in Lincolnshire in 1207, offered forty marks for an inquest into the appeal, and a further twenty marks for an inquest `by those who are well-informed’ as to whether it was made when he was in the king’s service in Poitou.51 Even when the sums involved were much smaller, the courts might still find ways of adding to them. Robert Bernard, a Cornishman appealed by Osbert the doctor in 1212 of assaulting him and his wife, occupying their house and taking their chattels, offered three marks for an inquest `so that an inquest may be held as to whether he appeals him through hatred and spite or for just cause’, but ended up giving five marks for a jury.52 And in the same year Peter of Thelnetham in Suffolk, appealed by Warin son of Geoffrey de Witefeld of trying to kill him, was recorded as having given the king five marks for an identical inquest, but then having to offer two and half more to ensure that it was actually held.53
Clause 36 ordered that the writ substituting jury trial for battle should be freely available to all, and that it should never be refused to anyone wanting it. When Adam of Beeston appealed William Gramaticus early in 1201 of assault, robbery and imprisonment, William responded by denying the charge and offering £5 for an inquest, subsequently raising his bid to ten marks, but the court coram rege refused the offer – Non recipitur oblatum - and gave orders for a duel. William finally obtained licence to settle with Adam, but had to pay £100 for the privilege.54 Only a man of means could have offered to buy the writ, let alone to have settled the case, at the prices named (William paid over £50 within a year). None of the men and women involved in the appeals cited above can have been paupers. Very poor people, who were in no position to offer even 6s. 8d. for an inquest, might be, and indeed clearly were, appealed of felony, but no lawsuits have been noticed in which a court ordered that one be held gratis, nor do there appear to have been complaints afterwards that this did not happen. It would seem, therefore, that the purpose of Clause 36 was less to ensure that the writ was had literally for nothing, than to turn it into a writ de cursu, available as such for a standard fee of 6d., and so to prevent haggling, of the kind described above, over what could be quite literally a matter of life and death, and to bring order, even routine, to the process of securing jury trial. The very poor might still have been excluded from the benefits of the writ, but their problems were arguably not what the compilers of the Charter were concerned to solve, rather they seem likely to have been thinking mainly of needs of their dependents, of the gentry and lesser landowners who looked to the barons for leadership, men whose quarrels could bring them into the sort of contact with the king’s courts which their lords could usually expect to avoid. Avoiding trial by battle might have been a matter of some importance for such men, just as having access to writs licensing delays and facilitating settlements could have constituted a welcome reinforcement of their legal armouries. By effectively advancing the provision of jury trial in criminal cases at every social level, however, clause 36 may have had a wider impact than was originally intended.
For the background see J. Hudson, The Oxford history of the laws of England ii: 871-1216 (Oxford, 2012), 709-49.
W. Stubbs (ed.), Select charters from the beginning to 1307, 9th edn., revised by H.W.C. Davis (Oxford, 1913), 176-7.
PR 6 John (1204), 102, 170. PR 10 John (1208), 21.
G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 171.
PR 24 Henry II (1176), 104.
PR 3-4 Richard I (1191-2), 110.
Curia Regis Rolls v, 1207-1209 (1931), 50, is the principal source for this case.
Sir F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (Record Commission, 1835), ii, 265-6.
Curia Regis Rolls v, 249; PR 9 John (1207), 136; PR 10 John (1208), 179.
PR 2 John (1200), 86.
C.E.H. Chadwyck-Healey (ed.), Somersetshire pleas i, Somerset Record Society 11 (1897), no. 88.
PR 8 John (1206), 178.
T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 - hereafter Rot.Ob.Fin.), 543.
PR 9 John (1207), 176; PR 10 John (1208), 73, 188.
Palgrave, Rotuli Curiae Regis ii, 278.
E. de Haas and G.D.G. Hall (eds.), Early registers of writs, Selden Society 87 (1970), 66 (no. 109).
Curia Regis Rolls v, 180.
D.M. Stenton (ed.), Pleas before the king or his justices, 1198-1212, iv, Selden Society 84 (1967), no. 4200.
What follows is indebted to R.D. Groot, `The jury in private criminal prosecutions before 1215’, American Journal of Legal History 27 (1983), 113-41.
These issues are discussed by P.R. Hyams, Rancor & reconciliation in medieval England (Cornell, 2003), 175-83.
R.C. Van Caenegem (ed.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii no. 505. See also F.W. Maitland (ed.), Pleas of the crown for the county of Gloucester ... 1221 (1884), no. 87, the case of a man appealed of wounding ,and following his defeat in a duel condemned to be blinded and castrated.
Rot.Ob.Fin., 244; PR 7 John (1205), 57.
Rot.Ob.Fin., 343; PR 8 John (1206), 178.
PR 5 John (1203), 104; Curia Regis Rolls iii, 1203-1205 (1926), 157.
M. Bateson, `A London municipal collection of the reign of John’, English Historical Review 17 (1902), 480-518, 707-30, at 721-2.
Curia Regis Rolls iii, 110. A later example of a man appealed of homicide being remanded to custody until an inquest could be held is recorded in Curia Regis Rolls vi, 1210-1212 (1932), 137-8.
W.S. McKechnie, Magna Carta (2nd edn., Glasgow, 1914), 363; T.D. Hardy (ed.), Rotuli litterarum patentium i: 1201-1216 (Record Commission, 1835), 76.
PR 10 John (1208), 21.
PR 14 John (1212), 86.
T.D. Hardy (ed.), Rotuli litterarum clausarum, 1201-1227, 2 vols. (Record Commission, 1833-4), i, 205-6.
The exception is discussed by S. Jenks, `The writ and the exception de odio et atia’, Journal of Legal History 23 (2002), 1-22.
D.M. Stenton (ed.), The earliest Lincolnshire assize rolls, A..D. 1202-1209, Lincolnshire Record Society 22 (1926), no. 607.
N.D. Hurnard, The king’s pardon for homicide before A.D. 1307 (Oxford, 1969), 25, 60, 76.
Details of this case from Curia Regis Rolls iii, 62-3, 202, 299; Curia Regis Rolls iv, 1205-1206 (1929), 37, 56-7, 83, 183, 226; Curia Regis Rolls v, 63, 183, 254; PR 5 John (1203), 184.
Curia Regis Rolls vi, 264-5.
F.W. Maitland (ed.), Select pleas of the crown i: A.D. 1200-1225, Selden Society I (1888 for 1887), no. 78.
Stenton, Pleas before the king or his justices iv, no. 3428.
Stenton, Earliest Lincolnshire assize rolls, no.1508.
Curia Regis Rolls iv, 216.
Curia Regis Rolls ii, 1201-1203 (1925), 15.
Stenton, Earliest Lincolnshire assize rolls, no. 594.
PR 10 John (1208), 68.
PR 7 Richard I (1195), 214-15.
Stenton, Pleas before the king or his justices iv, no. 3458.
D.M. Stenton (ed.), Pleas before the king or his justices, 1198-1202, ii, Selden Society 68 (1952), no. 393.
Palgrave, Rotuli Curiae Regis i, 57-8.
PR 10 John (1208), 73; Curia Regis Rolls v, 152.
Curia Regis Rolls vii, 1213-1215 (1935), 49-50.
PR 9 John (1207), 71.
PR 9 John (1207), 28; Curia Regis Rolls v, 47.
Curia Regis Rolls vi, 334-5.
Hurnard, King’s pardon for homicide, 344-5
Please note: commentaries are presently available only for clauses marked with *; more commentary to be added in due course.