Note 11 — Chapter VI

The principle that a man's life may not twice be put in jeopardy for the same offence had been pretty well established before 1612. See Darly's Case, 25 Eliz. (1583), Coke's Reports (ed. Thomas and Fraser, London, 1826), IV, f. 40; Vaux's Case, 33 Eliz. (1591), ibid., f. 45; Wrote vs. Wiggs, 33 Eliz. (1591), ibid., f. 47. This principle had been in process of development for several centuries. See Bracton (ed. Sir Travers Twiss, London, 1878-1883), II, 417, 433, 437; Britton (ed. F. M. Nichols, Oxford, 1865), bk. I, cap. xxiv, 5, f. 44 b.

It must be noted, however, that the statute of 3 Hen. VII, cap. II, provides that indictments shall be proceeded in, immediately, at the king's suit, for the death of a man, without waiting for bringing an appeal; and that the plea of antefort acquit in an indictment shall be no bar to the prosecuting of an appeal. This law was passed to get around special legal inconvenience and related only to homicide and to the single case of prosecution by appeal. In general, then, we may say that the former-jeopardy doctrine was part of the common law, (1) an appeal of felony being a bar to subsequent appeal or indictment, (2) an indictment a bar to a subsequent indictment, and (3) an indictment to a subsequent appeal, except so far as the statute of 3 Hen. VII., cap. II, changed the law as respects homicides. For this brief statement I am indebted to Professor William Underhill Moore of the University of Wisconsin.

What Potts has to say about Anne Redfearne's case hardly enables us to reach a conclusion about the legal aspect of it.