CHAPTER FIFTY-FOUR.
Nullus capiatur nec imprisonetur propter appellum femine de morte alterius quam viri sui.
No one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband.
The object of this chapter was to find a remedy for what the barons evidently considered an unfair advantage enjoyed by women appellants, who were allowed to appoint some champion to act for them in the duellum, while the accused man had to fight for himself. The connection between appeal and battle, and the distinction between battle following on appeal and battle on a writ of right, have already been explained.[[1021]] In civil pleas wherein combat was legally competent, neither party could fight in person: champions were insisted on, although hired champions were condemned. In theory, these men were witnesses, each swearing that he had actually seen the seisin—that is, had been present at the infeftment of the claimant whose title he supported, or at that of his ancestor from whom he inherited the land.[[1022]] In criminal pleas, on the other hand, the parties must fight in their own persons. This distinction is not so illogical as it seems at first sight, for the appellant was supposed to be an eye-witness of the crime[[1023]]; and the apparent anomaly disappears when both rules of procedure are treated as deductions from the principle that the combatants in all cases were witnesses whose conflicting testimonies must be weighed in the balance of battle, with an overruling Providence holding the scales.
In a case of murder, no private accuser would be heard unless he alleged that he had seen the accused actually do the deed. The stringency of this rule was, however, modified by legal fictions. The near relation, or the feudal lord, of the slain man was treated as constructively present at his slaying, because of the closeness of the bond of blood or of homage between the two. This, at least, is the most plausible interpretation of Glanvill’s words: “No one is admissible to prove the accusation unless he be allied in blood to the deceased or be connected with him by the tie of homage or lordship, so that he can speak of the death upon testimony of his own sight.”[[1024]]
The rule also which required an appellant to offer proof by his own body was relaxed in certain cases; women, men over sixty years of age, and those with broken bones or who had lost a limb, an ear, a nose, or an eye, were unable to fight effectively, and might therefore appear by proxy.[[1025]] The privilege thus accorded to women was looked on with much disfavour as conferring an unfair advantage as against appellees who were not allowed to produce a substitute. Accordingly an option was given the man accused by a woman; he might, in Glanvill’s words, elect either "to abide by the woman’s proof or to purge himself by the ordeal."[[1026]] This option was freely used; an appellee in 1201 was allowed to go to the ordeal of water,[[1027]] while two years later when the widow of a murdered man offered to prove her accusation “as the court shall consider,” the accused was allowed to go to the ordeal, “for he has elected to bear the iron.”[[1028]] After the virtual abolition of ordeal in 1215, appeals by women were usually determined per patriam (that is by the sworn verdict of a jury of neighbours). Such is the doctrine of Bracton,[[1029]] whose authority is amply borne out by recorded cases. Thus in 1221, a man accused by a woman of her husband’s murder offered fifteen marks for a verdict of the jurors.[[1030]]
A woman’s right of accusation (even when thus safeguarded from abuse) was restricted to two occasions, the murder of her husband and the rape of her own person. Magna Carta mentions only one of these two grounds of appeal; but silence on the subject of assault need not be interpreted as indicating any intention to deprive women of their rights in such cases.[[1031]]
The present chapter of the Great Charter confines itself to appeals of murder, declaring that no woman has the right to institute proceedings in this way for the death of father, son, or friend, but only for that of her husband. Hard as this rule may seem, the barons here made no change on existing law. Glanvill does not seem to recognize the possibility of a woman’s appeal of homicide save for the death of her husband.[[1032]] He seems to deduce the reason for allowing it in that case from the principle already explained: "A woman is heard in this suit accusing anyone of her husband’s death, if she speak as being an eye-witness to the fact, because husband and wife are one flesh"—another example of constructive presence.[[1033]]
There seems to be no authority whatever for Coke’s hasty inference from the provisions of this chapter, that previous to 1215 a woman had an appeal for the death of any one of her “ancestors.”[[1034]] The chapter, in spite of its declaratory nature, seems an ungallant one, indicating that the barons were more careful to guard themselves against unnecessary risk than to champion the cause of defenceless women.[[1035]]
[1021]. Cf. supra, c. 36.
[1022]. Bracton, folio 151 b., cites the case of a champion sentenced to mutilation of a foot because he confessed that he was paid to appear, and was not really a witness. The Statute of Westminster, I. (3 Edward I. c. 41), enacted that champions need not swear to the personal knowledge of what they maintained. See also Neilson, Trial by Combat, 48–51.
[1023]. The appellant “in all cases except murder, that is, secret homicide, made oath as a witness that he had seen and heard the deed.” Neilson, Trial by Combat, 48.
[1024]. Glanvill, XIV. c. 3.
[1025]. See Bracton, II. ff. 142 b, 145 b; also Neilson, Trial by Combat 47, and authorities there cited.
[1026]. Glanvill, XIV. c. 3.
[1027]. Sel. Pleas of the Crown, No. 1.
[1028]. Ibid., No. 68. Cf. No. 119.
[1029]. Bracton, folio 142 b.
[1030]. Select Pleas of the Crown, No. 130.
[1031]. The Act 6 Richard II. c. 6, to prevent the wife’s connivance, extended the right of appeal in such cases to a woman’s husband, father, or other near relative; but denied the appellee’s right to the option of defending himself by battle—thus proving no exception to the policy of discouraging the duellum wherever possible.
[1032]. Glanvill, XIV. c. 3.
[1033]. Glanvill, XIV. c. 33, Fleta I. c. 3, seems by different words to indicate only the same doctrine of constructive presence, when he speaks in this connection “de morte viri sui inter brachia sua interfecti,” although laboured explanations of this passage are sometimes attempted, e.g. Coke, Second Institute, 93. Pollock and Maitland (I. 468, n.) dismiss the phrase inter brachia sua as "only a picturesque ‘common form.’"
[1034]. See Coke, Second Institute, p. 68, and contrast Pollock and Maitland, I. 468. John’s justices rejected in 1202 a woman’s claim to appeal for her father’s death, and some ten years later two other claims for the death of sons. See Select Pleas of the Crown, Nos. 32, 117, and 118.
[1035]. A peculiarity in the wording of this clause should, perhaps, be noticed. It restricts explicitly not appeals by women, but merely “arrest and imprisonment” following on such.