Definition
A writ de bono et malo (Latin: "for good and ill," or "for good and evil") was a common law writ used to empanel a jury to try a prisoner who had been committed to prison on a general charge — one that had not yet been reduced to a specific indictment. The writ compelled the summoning of a jury to inquire generally into the prisoner's conduct and guilt, both in respect of the matter for which he was imprisoned and otherwise, so that his case could be resolved without indefinite pretrial detention.
In practical terms, the writ served as a mechanism for forcing a general trial when an accused had been jailed but the Crown or accusing party had not yet procured a formal indictment on a particular offense. Rather than languishing in custody while awaiting a specific charge, the prisoner could invoke the writ to demand that a jury be convened to examine his situation broadly — for good or ill — and reach a verdict.
The writ was closely associated with the ancient assize system and general jury process. It fell out of use as the criminal procedure became more formalized, with specific indictment requirements and statutory protections against indefinite pretrial detention (most notably through habeas corpus) supplanting the need for such a broad pre-indictment remedy.
Common Confusion
WRIT DE BONO ET MALO vs. HABEAS CORPUS: Both writs addressed the problem of a prisoner held without timely resolution of charges, but they operated differently. Habeas corpus commanded a jailer to produce the prisoner and justify the detention — it tested the legality of confinement. The writ de bono et malo instead moved directly to trial, compelling the impaneling of a jury to determine guilt or innocence on a general inquiry. A prisoner seeking release from unlawful detention used habeas corpus; a prisoner ready to face trial on whatever charges existed used the writ de bono et malo.
WRIT DE BONO ET MALO vs. WRIT OF INQUIRY: A writ of inquiry directed a jury to assess damages, not to try criminal guilt. The similarity in structure — both summoning a jury by writ — can mislead researchers scanning historical materials. The subject matter and purpose are entirely distinct.
Why It Matters in Research
This term will appear in historical common law materials, particularly pre-eighteenth-century English criminal procedure sources and their American colonial-era successors, almost exclusively as a cross-reference rather than a fully developed entry. The three major historical dictionaries in the Law Mind corpus all handle it by redirection — pointing the researcher to DE BONO ET MALO and ASSIZE — which means the substantive content must be assembled from those connected entries rather than from this heading alone.
Researchers should be alert to several navigational traps. First, the Latin phrase appears in variant spellings and abbreviations across older manuscripts and printed reports. "De bono et malo" may appear without the word "writ" preceding it, or in abbreviated Latin form, making index and full-text searches unreliable without synonym expansion. Second, the writ's function overlaps conceptually with early habeas corpus practice, and historians of criminal procedure sometimes treat the two as functionally equivalent for purposes of pre-trial detention relief — an oversimplification that obscures the procedural distinction noted above. Third, because the writ is obsolete, modern legal databases will contain almost no case law invoking it directly; its relevance is historical and contextual, appearing most usefully in scholarship on the development of English jury trial, indictment practice, and the evolution of pretrial rights.
For corpus researchers, the chain is: WRIT DE BONO ET MALO → DE BONO ET MALO → ASSIZE → jury trial history. Working that chain in the encyclopedia and treatise layers of the corpus will yield more substantive content than the dictionary layer alone.
Historical Dictionary Support
All three source dictionaries — Black's (1st ed.), Black's (2nd ed.), and Bouvier's — treat this as a pure cross-reference entry, directing the reader to DE BONO ET MALO and ASSIZE without supplying an independent definition. This unanimity is itself informative: by the time these dictionaries were compiled, the writ was sufficiently obsolete that the editors saw no need to define it independently, treating it as a mere access point to the underlying Latin phrase entry.
The historical sources do not diverge on substance because none of them provide substance at this entry. What they agree on implicitly is the writ's categorization alongside assize procedure, which correctly situates it within the jury-summoning machinery of medieval and early modern English criminal law. Researchers should not mistake the brevity of these entries for insignificance — the cross-reference to ASSIZE signals that understanding this writ requires grounding in the broader institutional history of the English jury system, which the assize entries in the same dictionaries supply in greater depth.
Jurisdictional Note
This writ belongs to English common law and had limited uptake in American colonial and early republic practice. American criminal procedure developed its own mechanisms for addressing pretrial detention — primarily through habeas corpus and constitutional speedy trial protections — and the writ de bono et malo did not survive as a recognized procedural tool in any American jurisdiction.