III.: Subsidiary Uses of the Writ.

This inquest of life and limb has been claimed as the direct antecedent of the procedure which became so valuable a bulwark of the subject’s liberty, under the name 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.

The opinion generally, though erroneously, held, is not without excuse; for the writ mentioned by Magna Carta was put to a subsidiary use, which bears superficial resemblance to that of the habeas corpus. 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 no right to be released on bail, a privilege allowed to those suspected of less grave crimes. This was hard where the accused was the victim of malice, or guilty only of justifiable homicide. Prisoners, in such a plight, might purchase royal writs that 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.

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, 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, declares it to be iniquitous that innocent men 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 tearful friends of accused men scarcely applies to John, who listened only to suitors with long purses: the writs that liberated homicides had become a valuable source of revenue. Sheriffs were reprimanded for releasing prisoners on bail without the King’s warrant, but, in spite of heavy amercements, they continued their irregularities. Thus, in 1207, Peter of Scudimore paid to the exchequer 10 marks for setting homicides free upon pledges, without warrant from the King. In that year, John repeated his orders, strictly forbidding manslayers to be set free upon bail until they had received judgment in presence of the King’s justices.

To John, then, the 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 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 in self–defence or by accident, the Crown was to be informed of this. Thereafter, from the chancery would be issued a second writ (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.

It should be noted that the provision granting gratuitous writs was not construed as forbidding payments made by an accused man for a special form of “trial.” Prof. Maitland has shown how “occasionally a person pays money to the King that he may have an inquest, and it would seem that he might still buy the right to be tried by a body constituted in some particular way. He might pay to be tried by the jurors of two hundreds, or of three hundreds, and because of local enmities such a payment may sometimes have been expedient.” A certain Reginald, Adam’s son, in 1222, offered one mark 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” which William de Ros, appellant’s lord, bore to Reginald’s father “vel per verum appellum.”

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. 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 sheriffs impanelling juries favourable to the accused, provided that inquests “shall be taken by lawful men chosen by oath (of whom two at least shall be knights) which by no affinity with the prisoners nor otherwise are to be suspected.” The Statute of Gloucester, on the other hand, ordered the strict confinement, pending trial, of offenders whose guilt was apparent. 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.” The writ in question was in use in 1314, and seems never to have been expressly abolished, but to have sunk gradually into neglect, as appeals became obsolete and gaol deliveries were more frequently held.