Settlement and the Decline of Private
Prosecution in Thirteenth-Century England

DANIEL KLERMAN

Although modern societies generally entrust enforcement of the criminal law to public prosecutors, most crimes in premodern societies were prosecuted privately. In classical Athens, ninth-century Germany, and England before the nineteenth century, there were no public prosecutors for most crimes.1 Instead, the victim or a relative initiated and litigated the cases. This article is the first rigorously quantitative analysis of private prosecution. It focuses on thirteenth-century England and uses statistical techniques, such as regression analysis, to show that changes in the treatment of settled cases can explain the rate of private prosecution.	1
Charting and explaining the changing rate of appeals is important for both legal and social history. Appeals have always occupied an important place in the history of English law,2 yet their long-term decline has never been satisfactorily analyzed. For social historians, understanding private prosecution is important because private prosecution put awesome power in the hands of ordinary individuals: the power to accuse others of crime and thus to set in motion the coercive powers of the criminal law, including the possibility of pretrial imprisonment, outlawry, fines, and hanging.	2
More generally, because statistical analysis is rare in legal historical scholarship, it is hoped that this article will show that quantitative methods can provide new insights into old puzzles. In addition, because private prosecution was common in many premodern societies and remains a subject of theoretical debate among contemporary scholars, a thorough examination of thirteenth-century private prosecutions has relevance not only to English legal historians, but also to historians of other legal systems and to modern criminal procedure scholars. Finally, although the importance of settlement to the resolution of disputes has been widely recognized in both modern and historical scholarship, this article is one of the few that focus on settlements between victim and accused in the context of criminal cases.3	3
In medieval England, private prosecutions were called "appeals." Unlike modern appeals, they were unrelated to the correction of legal errors. To "appeal" simply meant to prosecute. Although appeals continued to be brought until the early nineteenth century, their heyday was the late twelfth and early thirteenth centuries. By the end of the thirteenth century, relatively few criminals were prosecuted by appeal. This article focuses on the thirteenth century in order to understand the appeal during the period when it was most important and in order to explain why it became so marginal.	4
The substantive contributions of this article lie primarily in two areas: accurate charting of the trends in the number of appeals and a new explanation for the decline of the appeal.	5
Part 1 provides background information. Part 2 reports the results of the only systematic, quantitative study of the appeal so far attempted. It reveals large, previously unnoticed changes in the frequency of appeals. The rate of appeals fell by 50 percent between 1200 and the 1220s, climbed back to turn-of-the-century levels by the late 1240s, and then swiftly dropped by two-thirds and remained at a low level through the end of the century.	6
Parts 3 and 4 try to explain why the rate at which appeals were brought varied so much over the thirteenth century and why the overall trend was decline. The most plausible explanation for the wide fluctuations is the changing judicial treatment of private settlements. One of the victim's motives for bringing an appeal was the utility of suit in facilitating monetary settlement. Such settlements were attractive to victims because there was no routine royal remedy by which they could get monetary relief for personal injury or property damage until the mid-thirteenth century. Settlement was attractive to the accused, however, only if it protected him from further prosecution. In the late twelfth and early thirteenth centuries, settlement almost always protected the appellee, because judges let the appellee go free without trial if the appellor was unwilling to prosecute. At various times during the thirteenth century, however, judges sent appellees to jury trial even though the appellor was no longer interested in the case. The implementation and relaxation of this antisettlement policy can account for most of the changing frequency with which appeals were brought.	7
Changes in judicial respect for settlement are the most plausible explanation for changes in the rate of appeals. Section 3.A, however, discusses four other explanations that have been suggested in the literature: (1) the appeal's archaic nature, especially the use of trial by battle; (2) judicial hostility, which manifested itself in the ease with which appellees could exploit technical defects to quash appeals; (3) the introduction of presentment,4 which meant that crimes might be prosecuted even if the victim did not appeal; and (4) the introduction of trespass actions, which were more attractive to victims because they provided money damages. Part 4 also discusses three additional alternative explanations that have not appeared in the published literature but have been suggested to me by other scholars: (1) appeal rates may have been influenced by crime rates; (2) appeal rates may have mirrored general trends in prosecution, especially trends in presentments of crime; and (3) appeal rates may have been influenced by the possibility of settlement before initiation of an appeal.	8
While most appeals were brought by the victim or the victim's family, there was a special kind of appeal that was brought by a convicted criminal who had already been sentenced to hang. If the convicted criminal successfully appealed several of his accomplices, his life would be spared. Criminals who were appealing their accomplices were called "approvers."5 This article focuses exclusively on nonapprover appeals for two reasons. First, because the prosecutor was a convicted felon seeking clemency rather than a victim or relative seeking retribution or settlement, approver appeals were so different from ordinary appeals that there is little to be gained from studying the two together. Second, the majority of approver suits were heard in gaol (jail) delivery, and, as is discussed in Section 2.E, very few gaol delivery plea rolls (records) have survived. Thus, it would be very difficult to perform a meaningful quantitative analysis of approver appeals.	9
Private prosecution, mostly of minor offenses, could also take place in local, nonroyal courts, and such prosecutions may even have been called "appeals." Nevertheless, because appeals in royal courts were most important for the development of the common law, and because the records of such cases have survived in greater abundance, especially for the early thirteenth century, this article focuses exclusively on the royal courts.	10
Part One: Background
Section 1.A situates the late twelfth and thirteenth centuries in the context of the broader history of criminal prosecution. Section 1.B enumerates the offenses for which appeals were brought, while Section 1.C explains the procedure for bringing and trying an appeal. Section 1.D discusses the terms and frequency of settlements, and Section 1.E briefly describes the social context of appeals. Four cases that illustrate various aspects of the appeal appear in Sections 1.C, 1.D, and 1.E.	11
A. A Very Short History of Criminal Prosecution in England
A brief glance at the broader history of criminal prosecution may help to put this article in its proper context. For the purposes of this section, it is useful to divide English history into four periods.	12
1. The first age of private prosecution (seventh to tenth centuries). During this period criminal prosecutions were almost entirely private. Prosecution was at least partially motivated by the possibility of monetary compensation. Until at least the late tenth century, those convicted of crime were not ordinarily hanged, incarcerated, or otherwise punished, but instead owed the victim compensation (bot) or, in homicide cases, owed the victim's family the deceased's wergild, a monetary payment that varied with the deceased's social status.6	13
2. The rise of presentment (tenth to fourteenth centuries). Starting in the late tenth century, Anglo-Saxon kings began to change the nature of criminal prosecution. Aethelred's third code, promulgated around 1000, required the twelve leading thanes (nobles) of a wapentake (district) to accuse and arrest those suspected of crime in their locality.7 This procedure seems to foreshadow presentment, which, according to some historians, did not became a routine part of judicial administration until almost two centuries later, during the reign of Henry II. Under the presentment procedure, leading men were chosen from each locality and were required to present (that is, report) on oath crimes committed in their neighborhoods. These leading men were known as the presenting jury, which is the ancestor of the grand jury. Like the medieval trial (petit) jury, the presenting jury was self-informing.8 Little or no evidence was presented in court. The jurors were expected to gather information informally before they came to court and to present their conclusions to the judges.	14
The nature of criminal penalties also began to change during this period. As early as the late tenth century, bot seems to have been payable to church, king, or community at large rather than to the injured kin.9 There is also archaeological evidence that the death penalty was frequently imposed in the eleventh century.10 By the late twelfth century, these changes were firmly entrenched and are regularly attested to by the surviving records. Hanging and fines payable to the king were the only criminal penalties regularly imposed in royal courts. In addition, hanging was usually accompanied by forfeiture of land and chattels.	15
Although presentment and noncompensatory punishments were becoming increasingly important, no English king even attempted to abolish private prosecutions, which by the late eleventh century were called "appeals." In fact, until the turn of the fourteenth century, presentments were confined almost exclusively to homicide and theft,11 and nearly all accusations of rape, mayhem,12 wounding, false imprisonment, assault and battery were brought by way of appeal, as were large numbers of homicide and theft cases. Although the legal sanction for crime was death or fines payable to the king, victims (and their families) could appeal and use the threat of legally imposed hanging or fines to induce compensatory monetary settlements. By the end of the thirteenth century, however, the appeal was becoming much less common, and presentment had become the way nearly all crimes were prosecuted.	16
3. The return of private prosecution (fourteenth to nineteenth centuries). As noted above, twelfth- and thirteenth-century juries (both presenting juries and trial juries) were largely self-informing. During the fourteenth and fifteenth centuries, however, for reasons that have yet to be fully explained, juries became more passive.13 Trial juries began to rely on evidence that parties presented in court, and the presenting jury (now called the grand jury) less frequently made accusations based on its own knowledge. Instead, the grand jury primarily screened accusations made by others, declaring "true bill" of accusations ("indictments") it approved.14 Although these prosecutions were formally brought in the name of the Crown, the predominance of victim initiative suggests that they are properly classified as private prosecutions.15 Nevertheless, royal officials did provide investigative assistance. From the late twelfth century, the coroner had been gathering evidence in homicide cases.16 Justices of the peace performed a similar function for other crimes from, at latest, the sixteenth century, and possibly as early as the fourteenth.17	17
4. The age of public prosecution (nineteenth century to present). In the nineteenth century, partly in response to the growing problem of urban crime, pressure began to mount for public prosecution. Victims frequently did not prosecute because it was expensive, time consuming, and brought few benefits other than the satisfaction of revenge or justice.18 As a result, by the mid-nineteenth century, most prosecutions were private in name only, as the "private" prosecutor was in most instances a policeman. Nevertheless, public prosecution was perceived as a threat to liberty, and Parliament did not pass legislation to set up a national system of public prosecutors until 1879.19 Even this statute did not fundamentally undermine private prosecution, because public prosecutors had very limited authority.20 It was only with the passage of the 1985 Prosecution of Offenses Act that England established an effective system of public prosecution, and even this legislation preserved a limited right of private prosecution.21 In America, public prosecution seems to have become common somewhat earlier.22	18
As this outline suggests, the thirteenth century was a crucial transition period, the time when self-informing presentment replaced private prosecution. But the thirteenth century was only one of several important periods of transition. Private prosecution regained its dominant role in early modern times and in turn gave way to public prosecution in the last two centuries.	19
B. Offenses
The appeal could be used to prosecute a wide range of crimes, from simple assaults to rape and homicide. Table 1 lists the most important crimes in the order of their relative frequency of prosecution.	20
As the table suggests, the appeal was most commonly used for assaults, including beatings, woundings, and mayhems. Next most common was homicide (27 percent), then theft of various kinds, including larceny, robbery, and burglary, which accounted for 12 percent of all appeals. This figure, however, understates the rate at which appeals were brought to prosecute property crimes. About a third of the assault appeals also complained of the wrongful taking of property, as did a few appeals of rape and other crimes. If these accusations were added to thefts, property crimes would have constituted 26 percent of all appeals. The next most common crime prosecuted by appeal was rape. During the twelfth century and most of the thirteenth century, rapes could be prosecuted only by appeal.23 Although one might think that in such a patriarchal society rape would be seen primarily as a wrong to the woman's father or husband, appeals of rape were brought exclusively by the victim herself.24 Finally, 4 percent of all appeals were brought for a wide array of other offenses, from abduction, arson, and attempted burglary to false imprisonment, malicious prosecution, receiving outlaws, and selling the king's hawks. It is difficult to define the outer limits of offenses that could be prosecuted by appeal. An appeal required an allegation of breach of the king's peace, but (as later with trespass actions) the allegation seems to have been purely formal and without content. For 7 percent of all cases, the crime appealed is not mentioned or is specified merely as a breach of the king's peace.	21
C. Procedure
Prosecuting an appeal involved a long and complicated process that often took several years. Immediately after the crime, the victim (or the first finder in the case of homicide) was required to "raise the hue and cry," that is, to notify his neighbors of the crime by yelling out. The hue and cry brought people to the scene of the crime while the evidence was fresh and could lead to hot pursuit of the criminal. The victim (or prospective appellor) was then required to make "fresh suit" by publicizing the alleged crime in the neighboring villages and notifying the coroner.25	22
The victim (or family member in homicide and some other cases) was required to initiate suit at the next county court, which met every four weeks.26 Appellors could be either male or female, and appeals by women were common. More than a third of all appeals were brought by women, including almost two-thirds of homicide appeals.27 Suit had to be in person. No attorneys were allowed unless the victim was incapacitated.28 The appellee was then summoned to appear at the next county court. If he did not appear, he was given three more chances. If he still did not show up, he was outlawed.29 An outlaw forfeited all his property, and it was a crime to feed, shelter, or communicate with him. If he resisted arrest, he could be killed without further legal process.30 Eighteen percent of all appeals ended in outlawry.	23
The appellee, however, was not the only party required to show up at subsequent county courts. The appellor was expected to appear and affirm her31 prior accusation. If she no longer believed the accusation was true, if she had settled with the appellee, if the appellee had intimidated her into dropping the accusation, or if she simply had lost interest in the case, she might not show up or, upon showing up, might retract her accusation.	24
If the appellor remained steadfast in her accusation and if the appellee appeared in county court before outlawry was pronounced, the appellee would be "attached," that is, he would be required to find sureties that he would appear at trial. If he could not find sureties, he could be jailed pending trial. In cases of homicide, all appellees were supposed to be jailed pending trial, although this harsh rule was not always enforced. All procedural steps in county court were recorded by the coroners, the royal officials charged with preserving the king's fiscal rights and supervising the local administration of criminal justice.	25
Trial, however, could not take place in county court. The sheriff presided over the county court and, according to custom and Magna Carta, lacked the power to try appeals because they involved an allegation of breach of the king's peace. Trial was postponed until royal justices arrived to handle criminal cases awaiting trial in the countryside. As discussed more fully in Section 2.E, delegations of royal justices took many forms, but, for appeals, the most important were called "eyres." Eyres occurred approximately every four years at the turn of the thirteenth century. The intervals between eyres lengthened as the century progressed, averaging every five to eight years at mid-century and as long as twelve to twenty years at the century's end. At the eyre, the presenting jury reported all appeals to the itinerant justices. Their presentments were compared with the coroners' written records of county court proceedings to ensure that the jury was not concealing appeals. If the appellor was present and wanted to continue her prosecution, she would repeat her accusation. A female appellor would offer to prove the appeal "as the court adjudges." A male appellor, unless he was aged or maimed, had to offer to prove his appeal "by his body," that is, by battle. About 18 percent of appeals reached this stage.	26
The appellee, if present, then pled. His options were to deny commission of the crime or to put forward a technical defense, such as failure to raise the hue and cry, failure to sue at the first county court, or a divergence between the accusation in the county court (as recorded by the coroners) and the appellor's repetition of the accusation in the eyre. If the technical defense was accepted, the appeal was null. This happened in about 10 percent of appeals. If the defense was rejected or if the appellee offered no technical defense but merely denied the accusation, he would offer to prove his innocence by battle or, after jury trial became routine around 1220,32 he could "put himself on the country." Battle, however, was only an option if the appellor was a healthy, nonminor male, and even then appellees almost always chose jury trial. If accused by a woman or an aged or maimed male, the appellee was required to accept trial by jury. Jury trial in this period did not involve the presentation of evidence in court. Instead, the jury was expected to know about and perhaps to have investigated the case before trial. Before the abolition of the ordeal in 1215, appellees accused by women and nonbattleworthy males were put to the ordeals of cold water or hot iron to prove their innocence. Appellees seldom underwent ordeals, however, unless the presenting jury had previously rendered a "medial verdict" that the accusation had merit.33 These medial verdicts, and the fact that those put to the ordeal were acquitted more than 80 percent of the time, reduced the danger that the threat of trial by ordeal might lead to extortion.34	27
Appellees convicted of the most serious crimes (homicide and sometimes theft) were hanged, while those convicted of other crimes were usually ordered to be taken into custody until they offered to pay a fine or "amercement" in an amount determined individually (but probably loosely) according to the offender's wealth and the severity of the offense. Convicted offenders could also be castrated or blinded,35 but such punishments were extremely uncommon.	28
It was relatively rare, however, for appeals to proceed through pleading to proof, that is, to battle, jury trial, or the ordeal. In a majority of cases (57 percent), appellors dropped their prosecution before the case reached the eyre.36 One of the key legal issues, therefore, was the treatment of nonprosecuted appeals. As is discussed in depth in Section 3.B, the treatment of such cases changed several times during the thirteenth century. The judges basically had two options. Either they could acquit the appellee, or they could require the appellee to submit to trial in spite of the fact that the appeal was not prosecuted.37 In the late twelfth and early thirteenth centuries, appellees were usually acquitted when the appeal was not prosecuted. By the 1250s, however, judges routinely put appellees to trial when appellors did not prosecute. When a nonprosecuted appellee was put to trial, he was sometimes said to have been tried "at the king's suit." The case below is typical of those in which nonprosecution led to acquittal.	29
Case 1 (Staffordshire 1199). Nicholas of Salt appeals Reginald son of Thomas and Richard, his brother, of [breach of the] king's peace and robbery. And Nicholas swore an oath to prosecute.38 And he retracted [his appeal] and so is in the king's mercy [that is, must pay a fine]. And the appellees are acquitted. Nicholas's amercement [fine] is half a mark, by surety of Thomas of Erdington.39
Nicholas appealed Reginald and Richard of robbery and then decided not to prosecute (retracted). As a result, the court acquitted the defendants. As was typical in such cases, the nonprosecuting appellor paid a small fine or amercement.
The following, particularly vivid case illustrates the practice of sending nonprosecuted appellees to jury trial. The procedurally important sections have been emphasized.	30
Case 2 (Bedfordshire 1247). John son of Benedict appealed Ivo Quarel, Osbert Cokel and Henry Wyncard in county court of [breach of the] king's peace, wounds and imprisonment, etc. And he [John] now comes and does not want to prosecute them. Therefore let him be committed to jail and his sureties, Ayltrop Balliol and Walter son of Odo, are in mercy [Fined]. And Ivo and the others come [to court]. And the jurors testify that they [John, Ivo, Osbert and Henry] have settled and they say that, in truth, the aforesaid Ivo and the others came to the property of Matthew of Leyham in Barford and fished there without Matthew's permission and contrary to his wishes. The aforesaid John came along and asked them for a pledge,40 and the aforesaid Ivo would not give him one, but instead struck the aforesaid John in the head with a hatchet and made two wounds each three inches long down to the crest of the head. And they [Ivo and the others] beat him badly. And afterwards they took him and bound him and put him in a boat and took him from this county [Bedfordshire] to the county of Huntingdonshire to Ivo's house at Buckden. There they dragged him with a rope to a window of Ivo's solarium and forced him to break the window with an ax. And they painted the wall near the window with the blood flowing from the wounds the aforesaid Ivo had given the aforesaid John, and they dragged him through the window and set upon him a blanket and some linen saying that he had stolen them. And they raised the hue [and cry] and caused the men who responded to the hue [and cry] to understand that eighteen thieves had come to his house, and that all except the aforesaid John had gotten away. So they put the blanket and the linen on him and took him to Huntingdon and gave him to the sheriff to be incarcerated. And he remained in prison until his tithing delivered him.41Therefore let the aforesaid Ivo and the others be taken into custody. Later Ivo Quarel came and made fine for forty marks [i.e., promised to pay the king forty marks to be released from custody] by sureties Ralf Ridel [and eleven others].42
In this case, John appealed Ivo and others of wounding and imprisoning him, but then told the eyre justices that he did not want to prosecute the case. The jury provides the motive for nonprosecution: settlement. Unlike Case 1 above, however, nonprosecution did not end the matter. The jurors, presumably at the prompting of the judges, reported fully what they thought happened. The jury's narrative to the judges constituted "trial" in the era of the self-informing jury. As a result of the jury's verdict, Ivo and the others were ordered to be jailed. Nevertheless, Ivo redeemed himself, and perhaps the other defendants as well, by paying a very large fine. The case is thus illustrative of those in which nonprosecuted appellees were tried, found guilty, and punished in spite of settlement.
The treatment of nonprosecuted appeals was especially important because it determined the extent to which an appellor could settle with the appellee. If the appellor's failure to prosecute resulted in the appellee's acquittal, an appellee would find it quite advantageous to settle with the appellor in return for nonprosecution. On the other hand, if appellees were put to proof even when appellors did not want to prosecute, settlement would offer appellees little benefit.	31
D. Settlement
One of the more surprising aspects of appeals is that they were often settled. The appellor simply stopped prosecuting the case if the appellee offered some compensation. The records are usually silent about the terms of settlements. In this respect, Case 2 is typical. Occasionally, the records are more forthcoming. For example, in the case reported below, a rape appeal was settled when the rapist gave the victim two acres of land. The sentences describing the settlement are emphasized.	32
Case 3 (Kent 1241). Gunora, daughter of John Gronge, appealed Geoffrey, son of William Broketherl, that he forcibly lay with her and deflowered her, etc. And Geoffrey comes and denies everything and puts himself on the country [that is, pleads "not guilty" and submits to jury trial]. And the jurors say that, in fact, the aforesaid Geoffrey lay forcibly with the aforesaid Gunora and deflowered her, because immediately afterwards she was seen by the headborough and by respectable men and women who saw that she was sticky with blood and had been mistreated. Therefore let Geoffrey be taken into custody. Later, the aforesaid Geoffrey comes and with permission [of the court] gives the aforesaid Gunora two acres of land in Mundham with their appurtenances. Therefore the sheriff is ordered to cause her to have seisin. And she retracts her appeal. She is poor [and is therefore not fined for retracting her appeal]. And Geoffrey made fine for his amercement by four marks [that is, promised to pay the king four marks] by sureties [names of sureties omitted].43
After the jury returned its guilty verdict, the defendant gave the victim two acres of land. In what was clearly a quid pro quo, the appellor then retracted her appeal. In spite of the settlement, however, the appellee still paid a fairly large fine.
In Case 3 the appellor settled for land, but cash settlements were probably more common.44 Monetary settlements reflect some continuity with the early medieval criminal law, in which, as described above in Section 1.A, monetary payments were the most common official penalty for crime. In rape cases, the appellee sometimes "settled" the case by marrying the victim.45 Such settlements probably reflect the victim's reduced chances of finding a suitable husband. In some instances, however, settlement by marriage may be explained by the fact that, at least in some cases, it is clear that the man and woman had consensual sex, but that she thought he was going to marry her. When it became clear that he would not, she brought a rape appeal.46 In such a context, termination of the case in exchange for marriage is not quite so jarring.	33
Sometimes settlements were explicitly endorsed by the judges. In the late twelfth and early thirteenth centuries, parties might come to court and ask for a "license to concord," that is, for judicial approval, which the judges would usually grant in exchange for a monetary payment.47 This practice became much less common after 1218, probably because judges became more hostile to settlement. This is discussed more extensively in Section 3.B. Case 3, however, shows some continuation of this practice later in the century, in that the defendant gave the victim land as compensation "with permission" of the court. More often, as in Case 2, the jurors reported that the parties had settled without judicial approval. Such settlements often resulted in a small fine and, in some periods, led to trial of the appellee. The terms of settlements were sometimes written down,48 although this seems to have been rare.	34
It is difficult to estimate how common settlement was. In a quarter of the cases, the rolls explicitly record whether the parties settled. Cases 2 and 3 are typical examples. More often, as in Case 1, nothing is recorded about settlement. Of the cases in which the rolls explicitly record whether the parties settled, two-thirds were settled. One could therefore plausibly estimate that anywhere between 17 and 67 percent of cases were settled. The low figure would assume that the only settled cases were those in which settlement was explicitly recorded, while the high figure extrapolates from the quarter of the cases in which the rolls record whether settlement occurred.49 The true figure is probably close to 40 percent. Settlement and recording whether the parties settled usually occurred in cases in which the appellor did not prosecute at the eyre. It is therefore reasonable to assume that a little more than two-thirds of all nonprosecuted appeals were settled, rather than two-thirds of all appeals. Since nonprosecuted appeals constituted 57 percent of all appeals, if two-thirds of all nonprosecuted appeals were settled, then 36 percent of all appeals would have settled. Since about 9 percent of settled cases cannot be classified as nonprosecuted cases, it is appropriate to round up to 40 percent.50	35
Appellees seem to have been sensible about which cases they settled. For about 14 percent of cases, including Cases 2 and 3, the records indicate both whether the parties settled and whether the jury thought the defendant was guilty. In these cases, guilty appellees settled 80 percent of the time, and innocent appellees settled only 26 percent. This suggests that appellees could usually predict jury verdicts and settled when they thought they would be found guilty. High settlement rates for guilty appellees might also indicate social pressure to settle when the appellee was in the wrong. Of course, since data on both settlement and guilt is available only for a small fraction of the cases, these figures should be treated with caution.51	36
The appellor's ability to extract a settlement from the appellee rested on the credibility of her threat to prosecute if no settlement was agreed upon and on the credibility of her promise not to prosecute if settlement was successfully negotiated. If appellees did not believe these threats and promises, they would see little advantage in settling.	37
The appellor's threat to prosecute was clearly credible because failure to prosecute after initiation of the case in county court resulted in the imposition of fines on the appellor. The appellor thus had a monetary incentive to go forward with the prosecution, if no settlement was negotiated. Of course, by this reasoning, the victim's threat was not credible in the up-to-four-week period between the offense and the first county court, when the appellor was obliged to initiate her appeal. Nevertheless, as discussed in Section 4.C, it is unlikely that many cases were settled before initiation in county court.	38
The credibility of the appellor's promise not to prosecute (or, more precisely, not to continue to prosecute) if settlement were agreed upon is more problematic. Even during the periods when judges generally respected settlement by not sending nonprosecuted appellees to trial, there is no case that squarely holds that out-of-court settlement protected the appellee from further prosecution by an appellor who changed her mind.52 While judges tolerated settlements, they may not have enforced them. As discussed in Section 3.C, their tolerance for settlement probably reflected lack of reasonable alternatives rather than positive endorsement of settlement. Because there is little evidence of judicial enforcement, the credibility of the promise not to prosecute would have depended on the appellor's reputation, peer pressure, public opinion, possible threats of vengeance or self-help, and the intervention of third parties. There is some evidence that third parties assisted in the negotiation of settlements,53 and it seems likely that these people would have helped enforce the settlement if a party later reneged.	39
E. Social Context
It is difficult to ascertain the social context of appeals. The plea rolls are the almost exclusive source of evidence, and they are frustratingly laconic. Cases 1 and 3 are typical in this respect. Occasionally, however, the plea rolls provide more background. Many of these cases conform to a common pattern. The appellor did something that violated what the appellee perceived to be his legal rights. The appellee then used self-help to enforce his rights. Often, the appellee seems to have been relatively powerful, with armed men at his command to assist him in using violence to enforce his claimed rights. The appellor, perhaps because he lacked the wealth and power to respond in kind, turned to the law for redress and brought an appeal. The appeal of a wounding on the next page is typical.	40
Case 4 (Shropshire 1203). Robert Trainel has appealed William the reeve of Hencott that with his accessories he took him and beat him and made him bloody and held him until he was delivered by the sheriff's clerk. And this he offers [to prove], etc. And William comes and denies the wounding and felony, but says that this is the truth, that Robert came into the fishpond of his lord the abbot, where he had no right of fishing, and fished there. And Robert says that he fished in that fishpond as in that in which he ought to have right of fishing. Afterwards Robert came and withdrew and put himself in [the king's] mercy. It is adjudged that for hunger and folly he fished in that pond and not for wickedness. Judgment is for the shire court, and Robert remits to the abbot his right of fishing.54
In this appeal, Robert and the abbot had a disagreement about fishing rights. William, the reeve of one of the abbot's villages, used force to prevent Robert from fishing. Robert, who is described as "hungry" and therefore probably poor, could not use force to defend his claim, but he could bring an appeal against the abbot's reeve. The appeal, however, was unsuccessful, and Robert renounced his claim to fish in the abbot's pond.
Other cases reveal a similar pattern. These include appeals against a lord who used violence to enter into land after the death of a tenant,55 against a landowner who imprisoned and tortured a suspected thief,56 and against a lord who ransacked a tenant's house in retaliation for the tenant's suit in royal court over customs and services.57 In these cases, the appellor was clearly suing a person of much higher status.58 In other cases, such as Case 2, the appeal seems to have arisen out of one party's attempt to enforce his rights with violence, although the relative status of appellor and appellee is less clear. The right to impound animals often occasioned such appeals. One person would try to impound another's pigs or other animals, perhaps because they were trespassing or as security for some other dispute. The owner of the animals would try to retake them by force and a violent altercation would ensue. The party wounded in the fight would bring an appeal.59 Although the relative status of the parties in such cases is not clear, the appellee usually seems to have been at least a modest property holder, who, for example, possessed land upon which another's animals could trespass. In some such cases, the party impounding the animals may have been a lord distraining his tenant to make him attend the lord's court.60	41
Of course, there were appeals that did not fit this pattern. Some arose out of violent retaliation for insult,61 and others involved simple theft.62 In addition, few rape appeals fit this pattern. And in the vast majority of cases, there is no information on the causes of the dispute. Nevertheless, it is remarkable that when more information is available, the violence that gave rise to appeals seems usually to have been sparked by a prior dispute between the parties over land, chattels, or rights, and that the appellee was often a person of at least modest wealth. These characteristics lend plausibility to the idea that many appeals were brought in order to be settled and were, in fact, settled. Many appellees seem to have had sufficient wealth to pay money or to convey land as compensation, and the violence that underlay appeals was closely related to property disputes, which themselves were frequently the subject of settlement.	42
Part Two. Trends in the Rate of Appeals
Legal historians have long known that there were many appeals at the turn of the thirteenth century and very few in the sixteenth, but no attempt has been made to determine when this decline occurred. Maitland, the great turn-of-the-century legal historian, opined that the appeal was "but slowly supplanted by indictment,"63 and later historians have either accepted this view with only slight modification or remained silent on the issue.64 Sections 2.A through 2.E describe the trends in the number of appeals brought per year from the late twelfth century through the end of the thirteenth century. They show that the appeal declined dramatically during that century, but that the decline was in no way gradual, and that periods of swift decline alternated with periods of increase and stasis. Section 2.F examines published data on late medieval rates of appeal and shows that the thirteenth-century decline of the appeal was permanent. Knowledge of the trends in the rate of appeals is useful primarily because it lays the groundwork for Part 3, which tries to explain why the appeal declined.	43
A. The Data Set
In order to chart the patterns in the frequency with which appeals were brought, I examined eyre records from fourteen English counties from 1194 to 1294.65 These records contain 1249 appeals. The period 1194–1294 was examined because, before 1194, there are no records from which reliable figures can be drawn and because, after 1294, eyres were no longer a regular part of English justice,66 and the organization of the courts changed so drastically that figures derived from the records of the reorganized courts would not be comparable. With the exception of Kent, the fourteen counties were chosen because they are the only ones for which eyre records have survived for both the periods 1194–1209 and 1218–63. Kent was examined because its surviving records are unusually ample for the period 1226–44. Thus, these fourteen counties are those that shed the most light on changes in the rate of appeals in the early thirteenth century. While these counties were chosen based on the survival of their records, they are fairly representative of England as a whole, ranging from Kent and Wiltshire in the south, to Shropshire on the Welsh border, Norfolk and Essex in the east, and Yorkshire in the north. The area closest to London, however, is overrepresented. For these fourteen counties, all surviving eyre records before 1263 were examined. For five counties, the records for the rest of the thirteenth century were also examined.67 Unfortunately, many of the records are damaged and fragmentary. As a result, as discussed below, to ensure comparability over time, the data set contains cases only from districts for which records are consistently complete.	44
B. Analysis without Regression
Table 2 shows the number of appeals per year for almost all districts in the database. Each cell of the table records the number of appeals per year for the relevant districts in a given county as reported in an eyre taking place in the time period indicated at the top of the column. The blank cells indicate the extent to which records have been lost or are so damaged as to be unusable. Light shading indicates that no eyre was held in that county during the relevant period. Dark shading indicates records that were not examined, because, as noted above, those of only five counties were examined after 1263.	45
Most of the surviving records are damaged or incomplete. Fortunately, they are organized by district. To ensure comparability over time, each row in Table 2 includes appeals only for those districts for which records are consistently available and complete. If the row for a given county simply recorded all surviving information for that county, it would be impossible to tell whether an increase between two periods recorded a true increase in the number of appeals or simply the fact that the later figure was drawn from a less fragmentary source. Table 2 avoids that problem because all cells in a given row record information for the same set of districts. Thus, all Yorkshire cells exclude appeals from Harthill and Buckrose because the 1208 eyre roll lacks complete sections for these districts. Even though the eyre rolls for 1218–19, 1231, and later eyres survive for these districts, the appeals for these districts in these eyres were not counted because doing so would render meaningless any comparison to rates derived from the 1208 eyre. The column labeled "Districts" indicates both how many districts were analyzed for each row in the table and the total number of districts in the relevant county, thus providing a rough measure of the extent to which the numbers in Table 2 represent all appeals in the county or just a small fraction of them. The Appendix, Part B, lists the districts included in each row, and, the Appendix, Part C describes the criteria for inclusion in greater detail. Table 12, in the Appendix, Part A, shows the number of appeals per year for a small number of additional districts with odd survival patterns. Their inclusion in Table 2 would have cluttered the table without altering the analysis.	46
It is important to recognize that, although the figures in the table appear small, the number of appeals examined, 1249, is reasonably large. The figures seem low because they are rates: the number of appeals divided by the number of years covered by a given eyre. Since an eyre heard cases initiated in county court over the previous several years, the number of appeals is much higher than the rate. For example, the rate of 3.3 in the 1227–28 Bedfordshire eyre reflects the fact that judges in that eyre heard twenty-nine appeals, which had been initiated since the previous eyre had ended eight years, ten months, and one day earlier. Table 3 shows how the rates in the first row of Table 2 (Bedfordshire) were calculated.	47
An additional reason that the rates in Table 2 are relatively low is that, as noted in the "Districts" column, for many counties the table counts appeals only from a few districts because the records of the other districts have not survived intact. The records for Bedfordshire, Shropshire, Staffordshire, and Wiltshire are nearly complete, so their rates fairly represent the number of appeals per year for the entire county.68 The rates in the table for the other eight counties, however, significantly underestimate the rates for the whole counties because complete records for many districts do not survive.	48
Inspection of Table 2 shows that most counties conform to the pattern graphed below:	49
Figure 1. Rate of Appeals, 1194–1294 Note: To facilitate comparison across counties, the y-axis has been numbered from zero to 100, rather than with the rates for any single county. The rate for the first decade of the thirteenth century was set arbitrarily at 100. The precise numbers on the y-axis are irrelevant, because the purpose of the graph is to illustrate relative increases and decreases in the rate of appeals over time. As is explained below (28), the graph plots regression coefficients with two modifications.
Bedfordshire conforms almost exactly to the pattern depicted in Figure 1. It shows a large decline from 1201–3 to 1226–29, a rebound to 1246–49, and then an even larger decline to the end of the century. The other eleven counties also show similar trends. All five counties with records in the periods 1194–1209 and 1218–1229--Bedfordshire, Buckinghamshire, Essex, Shropshire, Staffordshire, and Yorkshire--show declines between these two periods. Similarly, the five counties with records in the periods 1218–1229 and 1231–1249--Bedfordshire, Buckinghamshire, Essex, Kent, and Yorkshire--all show increases. All counties for which data were gathered after 1260 show rates dramatically lower during the period 1261–94 than in 1194–1209 or 1231–52.
Of course, a few counties do not fit the pattern. For example, the rate of appeals continued to rise in Essex between 1246 and 1258, while Figure 1 shows mostly decline. In addition, while Buckinghamshire and Essex show declines from 1194–1203 to 1226–1229, these are much smaller than those experienced in other counties. This difference almost certainly reflects bad record keeping before 1200 because it was not until the 1201–3 eyres that justices used the coroners' rolls to check the presenting jury's report of appeals initiated in county court.69 Nevertheless, even taking into account these divergences, examination of Table 2 shows that most counties fit the pattern rather well.	50
C. Regression Analysis
The generally good fit withstands not only informal inspection but also a more rigorous statistical analysis. Although computationally complicated, the idea of regression is simple. It is a mathematical tool for measuring the relationship between variables, in this section between eyre dates and rates of appeals.70 Regression is helpful for three principal reasons. First, it can take into account all of the data. The analysis in the previous section focused on the most salient eyres and counties but failed to mention any data from six counties (Hertfordshire, Lincolnshire, Middlesex, Norfolk, Northamptonshire, and Wiltshire), not to mention individual eyres (such as Shropshire 1256) and all the data in Table 12. With so many data points, informal analysis is inherently selective. Only regression analysis can synthesize and integrate the mass of data. Second, regression analysis can produce numbers (such as the coefficients discussed below) that help to produce tables and graphs to summarize and communicate complex data. Third, regression analysis can help distinguish patterns that reflect real change from those that are more likely to reflect mere chance. When used improperly, regression results can produce a false sense of precision, but regression analysis also produces statistics (such as confidence intervals and p-values, discussed below) that help to assess the appropriate degree of precision to be accorded the results and the confidence with which results can be relied upon.	51
A simple regression, which attempts to explain the rate of appeal by a variable representing eyre dates, controlling only for county, explains most of the variance and yields statistically significant results. In such a regression each eyre visitation is assigned a variable (called a dummy variable) that is one if the data point is from that group of eyres and zero if it is not. Thus, for each data point, there is one eyre-date dummy variable that is one, and the rest are zero. Similarly, each county is assigned a dummy variable. Table 4 displays the most important results: the coefficients and associated statistics for the eyre-date dummy variables.	52
Each row of Table 4 corresponds to a column in Table 2 and reports the statistics for the dummy variable for those eyres. The second column, labeled "Coefficient" reports the regression's estimate of the degree to which the rate of appeals differed from that in the 1201–3 eyres. Thus, the fact that the coefficient for the 1218–22 eyres is 0.41 indicates that the rate reported in those eyres was only 41 percent of the rate reported in the 1201–3 eyres. Similarly, the fact that the coefficient for the 1246–49 eyres is 0.94 indicates that by that time the rate of appeals had rebounded almost to the levels attained in the 1201–3 eyres. In the 1250s, however, the rate of appeals began to plummet, so that by the 1260s it had fallen to between a quarter and a third of the levels attained at the turn of the century.	53
The graph in Figure 1 essentially plots the regression coefficients, with two deviations. The scale on the graph multiplies the coefficients by 100 and thus ranges from zero to one hundred rather than from zero to one. In addition, the graph plots a steady rate from 1194 to 1203, even though the coefficients for 1194–95 and 1198–99 are less than one. As explained above (26), the figures for these years almost certainly underreport the true rate. The graph has been adjusted to take this into account.	54
The third column of Table 4, the p-values, measures the statistical significance of the results. P-values of less than 0.05 generally indicate statistically significant results, and p-values of between 0.05 and 0.10 are considered marginally significant. It is thus important to note that the p-values for the most important of the eyres are easily significant at even the 0.05 level. The p-values for the 1218–22, 1226–29, 1252–58, 1261–63, 1268–77, 1278–89, and 1292–94 eyres are all much below 0.05, and all but the 1252–58 eyres are below 0.01. We can thus be confident (although, of course, not absolutely sure) that the declines from 1201–3 to 1218–29 and from 1246–49 to the end of the century were not merely the result of the lucky survival of records. The fact that the p-values for the 1231–33, 1234–38, 1239–44, and 1245 eyres are so high, however, means that we cannot be confident that the appeal had not already completely rebounded to turn-of-the-century levels by the 1230s.	55
The fact that the p-value for the 1246–49 eyres is almost one does not suggest that we cannot be confident that the rate of appeals had not fully rebounded by the late 1240s. P-values are useful only in testing the hypothesis of difference from the base (here the rate revealed by the 1201–3 eyres), not in testing the hypothesis of similarity. The last column, however, is helpful for that purpose. It gives the 95 percent confidence intervals for the coefficients and indicates that we can be 95 percent confident that the rate of appeals for the 1246–49 eyres was between 68 and 130 percent of the 1201–3 rate. While this confidence interval allows for substantial deviation from the turn-of-the-century rate, even the lower bound is higher than the 1226–29 rate, which was 51 percent of the turn-of-the-century level. The significance of the rebound from 1226–29 to 1246–49 can also be measured by rerunning the regression using the 1226–29 eyres as the base instead of the 1201–3 eyres. By doing so, the p-values test the hypothesis of difference from 1226–29 rather than 1201–3. If the regression is rerun in this way, the p-value for 1246–49 is 0.000, indicating that the rebound from 1226–29 to 1246–49 is very statistically significant.	56
In Section 2.B above, I argued that, although Bedfordshire fit the pattern depicted in Figure 1 almost exactly, the other eleven counties also show similar trends. This conclusion is buttressed by regression analysis. If the regression described above is repeated excluding Bedfordshire, the results are nearly identical. Only three coefficients change by more than 0.05: the coefficient for the 1226–29 eyres increases from 0.51 to 0.66, the coefficient for the 1239–44 eyres increases from 0.83 to 0.94, and the coefficient for the 1246–49 eyres decreases from 0.94 to 0.88. These changes do not substantially change the overall trends. In addition, the p-values generally increase, although only two cross the 0.05 significance threshold: the p-value for the 1226–29 eyres, which increases to 0.057, and the p-value for 1252–58, which increases to 0.069. Even these p-values are close to being statistically significant. Taken together, the changes in the coefficient and p-value for 1226–29 suggest that without Bedfordshire, the rate of appeal in the 1226–29 eyres might not have been much lower than in 1201–3. On the other hand, by excluding Kent, the rate of appeal could be made to appear much lower and more statistically significant.71 Nevertheless, since there is no more reason to drop Bedfordshire than to drop Kent, the regression results for the 1226–29 eyres reported in Table 4, which include all twelve counties in the data set, are the best guide to the overall trends in appeals.	57
D. Analysis by Crime
The previous section analyzed appeals for all crimes together. This section disaggregates those results. Table 5 shows regression coefficients for each crime category. These regressions are identical to those reported in Table 4, except the dependent variable is the number of appeals of a particular crime, rather than the total number of appeals. To save space, only the coefficients are reported. Statistical significance at the 0.05 level is indicated by an asterisk (*). The last row of the table reproduces the coefficients from Table 4 for comparison.	58
Although there are some differences from crime to crime, the similarities are more pronounced. All crime categories, except rape and homicide, show large declines from 1201–3 to 1218–22 or 1226–29, and most are statistically significant. Similarly, with the exception of the miscellaneous "other" category, all crimes show 1246–49 rates near their 1201–3 levels. And finally, all crime categories show low rates (coefficients well below one) toward the end of the century.72 In fact, with the exception of homicide, the rate of appeals for all eyres after 1265 was less than 50 percent of the 1201–3 rate for all crimes and often statistically significant at the 0.05 level. Even the homicide rate was down more than 40 percent, although its decline is not statistically significant. Thus, most crime categories, with the exception of homicide, show patterns similar to the overall trend. Section 3.D provides some explanation for why homicide rates were different.	59
E. Appeals in Gaol Delivery, the Bench, and Coram Rege
So far, this article has described the trends in the number of appeals by examining eyre records from fourteen counties. This section justifies the reliance on eyre rolls by showing that relatively few appeals were heard in other courts. In addition, the records for these other courts do not support the hypothesis that declines in the number of appeals heard in the eyre were offset by increases in the number of appeals heard elsewhere. This analysis of sources other than eyre rolls is extremely important: if most appeals were heard in other courts, or if decreases in the eyre were offset by increases elsewhere, then the trends identified above would be almost meaningless.73	60
Other than the eyre, the principal places where appeals could be tried were gaol (jail) delivery sessions, the court coram rege (later known as King's Bench), and the Bench (later known as Common Pleas or Common Bench).74 Gaol delivery rolls record cases heard by judges acting on commissions that empowered them to try only those persons being held in particular jails. Such judges may also have tried those released on bail. In contrast, eyre judges had commissions that empowered them to hear all sorts of matters, including trials of those not sufficiently dangerous to have been imprisoned or bailed and reports of felonies committed by those who had fled and could not be caught. By the fourteenth century, gaol delivery had become the most important forum for the trial of criminal cases. The relative importance of eyre and gaol delivery in the thirteenth century has not been systematically studied, but it is probable that by mid-century, if not earlier, more criminal cases were tried in gaol delivery than in eyre. Unfortunately, only a handful of gaol delivery plea rolls survive from before 1270. The surviving evidence, however, is remarkably consistent. Gaol delivery rolls from the first part of the century record appeals at rates of up to three per county per year,75 while those from the latter part of the century record only one or two per county per year.76 The number of appeals heard at gaol delivery was thus relatively low in comparison to the number heard in the eyre. Since gaol delivery was restricted to persons jailed or bailed, while most appellees were simply attached to appear, the relatively small number of appeals heard in gaol delivery is not surprising. In addition, the fact that there were generally more appeals heard at gaol delivery in the early thirteenth century than later suggests that the dramatic declines in the number of appeals discussed above do not merely reflect a shift of cases from eyre to gaol delivery. Rather, both eyre and gaol delivery records show a decline over the thirteenth century.	61
The principal courts of the common law were the Bench and court coram rege. The former was generally held at Westminster, while the latter traveled with the king, wherever he went. In the fourteenth century, their jurisdictions would be sharply distinguished, but this was not yet the case in the thirteenth.77 Each heard about one appeal per county per year.78 As with gaol delivery, this number is much lower than the number of appeals heard in the eyre. In addition, like gaol delivery, the number heard in the Bench and coram rege did not rise through the century (and may even have been falling), so the reduction in the number of appeals heard in the eyre cannot be attributed to a shift in cases to these courts.	62
F. Rates of Appeal in the Later Middle Ages
Recent research on the later Middle Ages has suggested that the appeal "enjoyed a vigorous old age."79 Some have even tentatively questioned whether appeals were any less common in the fourteenth and fifteenth centuries than in the thirteenth.80 Table 6 summarizes data gathered by other scholars on appeals in later medieval gaol delivery rolls.	63
Although there is considerable variation, the average number of appeals in late medieval gaol delivery rolls was well within the one to two appeal per county per year rate observed in the late thirteenth-century gaol delivery rolls discussed in the previous section. This low rate is somewhat surprising because all of the figures in the table, except Musson's, seem to include approver appeals. As discussed in the introduction, such appeals, which were brought by convicted criminals, were systematically excluded from this article. Since such appeals often constituted a substantial fraction of appeals on gaol delivery rolls, the average rate of nonapprover appeals in the later Middle Ages was probably closer to one per county per year.	64
Only one scholar, Whittick, has counted appeals in the central common law courts. He found 398 appeals in King's Bench in the period 1485–1495.81 This yields, on average, one appeal per county per year, exactly the thirteenth-century rate.	65
The preceding paragraphs are sufficient to show that there was no resurgence of the appeal in the later Middle Ages and that the mid-thirteenth-century decline of the appeal was permanent. In fact, the figures suggest a continued decline. The general eyre, the forum in which most thirteenth-century appeals had been brought, was no longer in existence in the late fourteenth and fifteenth centuries. Therefore, if the overall rate of appeals had remained constant, there would have been a substantial increase in the number of appeals heard in gaol delivery and/or King's Bench. Similarly, because the Court of Common Pleas (the Bench) stopped hearing appeals in the fourteenth century, the rate of appeals heard in King's Bench and/or gaol delivery should have increased. In fact, rates of appeal in gaol delivery and King's Bench did not rise to compensate for the constriction in fora in which appeals could be brought. Instead, they remained at rates comparable to those in the late thirteenth century. This suggests that the number of appeals per year probably declined further from the already reduced late thirteenth-century rates.	66
Part Three. Respect for Settlement and the Changing Rate of Appeals
Knowledge of the changing rate of appeals is useful primarily because it helps explain why the appeal declined. This part addresses that question. It first surveys the reasons others have put forward for the decline of the appeal and shows why they are unpersuasive. It then argues that changes in judicial attitudes toward settlement provide the best explanation for the changing rates of appeal.	67
A. Previous Explanations for the Decline of the Appeal
Although the general decline of the appeal during the Middle Ages is well known, relatively few historians have attempted to explain it.82 Those who have ventured explanations have suggested four reasons: (1) the appeal's archaic nature, especially the use of trial by battle; (2) judicial hostility, which manifested itself in the ease with which appellees could exploit technical defects to quash appeals; (3) the introduction of presentment, which meant that crimes might be prosecuted even if the victim did not appeal; and (4) the introduction of trespass actions, which were more attractive to victims because they provided money damages.83	68
The complex pattern of changing rates of appeals outlined in Part 2 shows that these explanations are at best only partially correct. None of them can explain why the number of appeals increased from 1226 to 1249. Nor can they explain why the rapid decline in the 1210s and 1250s.	69
Fear of trial by battle and the ease with which appeals could be quashed cannot explain the changes in the rate of appeals. Battle and technicality had been part of the appeal procedure well before the declines observed in the thirteenth century. In fact, if fear of battle were a serious impediment to bringing appeals, the rate should have increased in the latter part of the thirteenth century because, as discussed in the next section, by the second half of the century, an appellor could avoid battle, while ensuring a jury verdict on the appellee, by dropping or not prosecuting the case. Similarly, if potential appellors were deterred by the ease with which technical errors could be used to quash appeals, they should have brought more appeals in the later part of the thirteenth century because judges in that period forced appellees to submit to jury trial when appeals had been quashed.84	70
Nor can the introduction of presentment wholly explain the decline of the appeal. Presentment became a routine part of criminal procedure at the latest under Henry II in the 1160s and 1170s, far too early to have caused the precipitous declines in the 1210s and 1250s. It is, of course, possible, even probable, that the introduction of presentment caused declines in the appeal in the period 1166–1194 or even earlier, but there are no data with which to test that hypothesis. In addition, presentment of assaults and rapes was extremely rare, so the introduction of presentment cannot explain the thirteenth-century declines in the number of these appeals.	71
The availability of trespass actions, which allowed victims of most assaults and property crimes to bring a civil tort action for damages, also cannot explain the declines in the 1210s and 1250s. In addition, if trespass had directly caused the decline of the appeal, the decline should have been confined only to offenses that could give rise to trespass actions. Trespass actions for rape did not exist until after the 1285 Statute of Westminster II, and yet the number of rape appeals fell well before that time.85 In addition, trespass was never available for homicide, yet, as discussed in Section 2.D, the number of such appeals fell along with appeals of assaults and theft, albeit somewhat less dramatically. Nevertheless, as is discussed more fully below, the availability of trespass did play a role in the decline that occurred in the 1240s and 1250s.	72
B. Settlement Policy and the Changing Rate of Appeals
The best explanation of the decline of the appeal lies in changing judicial policy toward private settlement. In order to understand the importance of settlement policy, it is necessary to consider why people brought appeals in the first place. Some brought appeals because they wanted the appellee to be punished for harm done to the appellor or to a family member. One might characterize this motive as justice or revenge. Others brought appeals because they wanted compensation for harm done to them.86 In the late twelfth and early thirteenth centuries, there was no routine royal remedy by which victims could obtain damages for personal injury or property damage.87 Nevertheless, depending on the judicial policy toward settlement, victims could use the appeal to induce compensation. If the appellor was victorious at trial, she would receive no compensation,88 and the appellee would be punished either with death or a fine. Fear of hanging or fines, however, gave appellees powerful reasons to negotiate with their accusers, and money or other consideration might induce an appellor to drop the case. Case 3 is a particularly vivid illustration of the process. The appellor claimed she had been raped and brought an appeal. When the case came up for trial, however, she withdrew her appeal in exchange for two acres of land.	73
The appellor could use an appeal to procure a settlement, however, only if the appellee thought that settlement would protect him from further prosecution. This was not always the case. Sometimes judges disregarded settlements and tried the defendant "at the king's suit." Trial without the cooperation of the victim-prosecutor was possible because the jurors were self-informing and did not need the victim's testimony in order to convict.89 Juries seemed to have been quite willing to convict nonprosecuted appellees. In fact, the conviction rate at the king's suit was roughly the same as the conviction rate of those prosecuted by the appellor.90 Case 2 is illustrative of the many cases in which judges took a jury verdict and punished the appellee despite settlement. Such disregard of settlements, however, severely undercut the victim's bargaining position. If settlement with the appellor did not protect the appellee from trial, why settle?91 And if appellees would not settle, victims, to the extent that they were motivated by the desire for compensation, might not bring appeals at all.	74
Table 7 charts judicial respect for settlements by recording the percentage of nonprosecuted appeals in which judges let the appellee go free without trial. Section 3.G discusses some alternative ways of measuring respect for settlement. Table 7 shows that judicial respect for settlement varied considerably. In the late twelfth and early thirteenth centuries, settlements were almost always respected. In 90 percent or more of nonprosecuted appeals, the appellee went free without trial, as in Case 1. In the 1218–2