This chapter makes an advance upon the Articles of the Barons, extending to three kinds of abuses, not specially mentioned there, the respite provided in chapter 52 for redressing acts of illegal disseisin. The “close time” secured to John in virtue of his crusader’s vow is to cover (a) inquiries into the proper boundaries of forests said to have been extended by his father or by his brother; (b) wardships over the lands of under-tenants usurped by him by reason of his illegal extension of prerogative wardship, and (c) abbeys founded by mesne lords and seized by John during vacancies in violation of the rights of wardship of such founders.[[1020]]
[1019]. The words, “et eodem modo, de justicia exhibenda,” and “vel remansuris forestis” are written at the foot of both the Cottonian versions. Cf. supra, 195, n. They make clear, rather than add to, the meaning of the rest.
[1020]. It thus supplements three previous chapters (a) c. 47; (b) c. 37; and (c) c. 46 respectively.
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]]