Report No. 60

14.1B. History.-

Historically, the famous conflict between Henry II and Archibishop Becket1 constitutes a debate regarding double jeopardy. In the Constitution of Clarendon issued by Henry II in 1164, in Clause III, Henry II proposed that an ecclesiastical clerk who was accused of felony was first to be brought into the King's courts to plead to the charge and establish that he was a clerk; then, without a trial in the King's courts, he was to be taken by a royal officer to the eclesiastial courts for trial, and, if convicted and degraded there2, he was to be returned to the King's courts to be sentenced according to law3. Becket had a fundamental objection to this scheme. Becket opposed the proposal on the ground that further punishment in the King's Courts would violate the maxim Nemo bis in idipsum-no man ought to be punished twice for the same offence. The continental law4, the concept is referred to as Non Bis in Idem, and has been traced to its adoption by Justinian.5

1. See generally-

(a) Pollock and Maitland History of English Law, Vol. 1, p. 439 ff;

(b) Holdsworth History of English Law, 7th Edn., (1956), Vol. 1, p. 615 ff.

2. Degradation was a punishment.

3. See Richardson and Sayles The Governance of Medieval England from the Conquest to Magna Carta, [Edinburgh, (1963), pp. 289, 306.]

4. (a) Justinian, D. 48, 27.2 and C. 9, 2.9, quoted in Harward Researches in International Law, (1935) 29 American Journal of International Law, Supplement, p. 437, 602;

(b) Jolowics Roman Foundations of Modern Law, (1957), pp. 81, 94.

5. See Bartkus v. Illinoie, (1959) 359 US 121 (154), note (Black J.).