CHAPTER 11
To no one will we sell, to no one will we deny or delay right or justice.
Magna Carta, Clause 40
As the king’s coronation oath makes plain, governments then, as now, were expected to deal with problems of law and order. Generally this was left to the agents of local government. At their head were the sheriffs – shire-reeves – responsible for the counties and county courts. If the role of the sheriff of Nottingham in the Robin Hood ballads shows just how crucial the character of the sheriff was in setting the tone of local government, so too does Magna Carta. Five of its clauses (4, 24, 26, 30 and 48) seek to limit the sheriff’s powers in some way, and Clause 45 limits the king’s freedom to appoint as sheriff anyone he liked.
Below the sheriffs came the bailiffs in charge of the divisions of the shires known as hundreds. Forgotten today, the hundred courts had a long history, emerging in the tenth century and only abolished in 1867. Indeed, as late as 1886 the hundred was liable in law to make good damage caused by rioters. Below the hundreds came an administrative unit too small to have a court of its own. This was the vill or township, with its constable responsible for policing the area. There was, it must be remembered, no police force at this time. It was up to the victim of crime him or herself to raise the ‘hue and cry’. On hearing it, every able-bodied man in the district had to turn out as quickly as possible and do the utmost in his power (pro toto posse suo – from which comes the word ‘posse’ of American cowboy films) to chase and apprehend the accused. Most cases were dealt with routinely in spring and autumn sessions of the hundred courts presided over by the sheriff or his deputies. Serious crimes went to the county courts. Thus, if a woman was raped, she had to go at once to the nearest vill, show her injuries, blood and torn clothes to reliable men there, then go to the hundred bailiff and do the same, and lastly proclaim it publicly at the next meeting of the county court.
Then, as now, fear of crime led, every now and then, to high-profile government initiatives, crack-downs on crime, often with particular targets in mind. One such drive, launched by Henry II against churchmen who committed serious crimes and used their clerical status in order to escape proper punishment, led directly to the king’s dramatic confrontation with Archbishop Becket. Another, launched in 1166, just a year before John’s birth, resulted in a series of major innovations that amounted to a transformation of the whole English judicial system: a public prosecution service, the growth of a legal profession, the establishment of a central court of justice at Westminster, and a system of sending royal judges out from the centre to go on circuits through the counties. These developments ensured that, as far as serious crime and property law were concerned, there would be a single framework of law covering the whole country – the Common Law – instead of a number of different regional customs.
Magna Carta reflects this revolution in the administration of justice. In Clause 18 the king promised to send to each county four times a year two judges whose job it would be, sitting together with four knights from that county, to hold assizes in the county court. In fact, the government was never able to send judges round so frequently. Clause 18 is an extraordinary clause. As a rule Magna Carta set limits to what the king could do; but in this one clause he was required to give more rather than less government. The demand for royal judges to hold county court sessions four times a year was the product of a longing for law and order, for the settlement of property disputes. When the charter was reissued in 1217 the requirement was changed to a more realistic once a year – although even that proved to be beyond the organising capacity of the government. But something the government was doing was clearly right: people wanted more of it.
Clause 18 spelled out that the judges were to hear the assizes of novel disseisin, mort d’ancestor and darrein presentment. What this dauntingly obscure legal jargon means is that they were to hear civil actions about the possession of property. If someone felt that they had recently been ‘disseised’ – that is, dispossessed of property that was properly theirs – they could go the royal chancery and pay for a clerk to write out a writ of ‘novel disseisin’. Writs of mort d’ancestor were for people who claimed to be the lawful heir of a dead person’s property; and darrein presentment was for people who disputed patronage over churches. Like all writs, these were written royal commands. Writs had been around for centuries, at least since the time of Alfred the Great, three hundred years earlier, but what was special about the new writs established during the reign of Henry II – writs such as novel disseisin, mort d’ancestor and darrein presentment – was that they set a whole machinery of justice in motion. Previously a complainant had been expected to draft a writ himself and then deliver it to his opponent – which might well be risky – but these new-style writs were addressed to the sheriff of the relevant county and ordered him to take action to get the dispute heard in court. The sheriff had to arrange for a jury to decide the case on the basis of their local knowledge when the king’s judges next visited the county. Although it was still up to the plaintiff to take the writ from chancery to the sheriff, the later stages of the system had, as it were, been automated. The first stage too had been made much easier once a branch of the chancery had settled permanently at Westminster, as it had by the 1170s. Previously English people who wanted royal writs had had to find either the king or, if he was abroad, his representative, the justiciar, and since they kept moving around the country, this was sometimes frustratingly difficult. It helped, too, that the new writs were standardised in form – which meant they could be obtained for a comparatively modest fee. For the system to work efficiently it was important that the king’s judges made frequent circuits of the counties.
The expectation that the king would punish criminals reinforced the demand for more active royal judges, and Henry II responded. In 1176, for example, he divided the country into six circuits. In 1179 he sent out twenty-one judges in four circuits. These circuits were known as judicial eyres – the word derived from the Latin errantes meaning ‘travelling’. The result was that some men were so frequently appointed as justices in eyre that they became professional judges, specialists in the law. In view of the common belief that in the Middle Ages only churchmen could read and write it is worth noting that the overwhelming majority of this new class of judges were laymen, men learned in a law which depended for its regular functioning upon documents. Everywhere they went these judges applied the same laws, a common law all over England, which is why the king who sent them out is commonly regarded as the founder of the Common Law.
What happened then, when a serious crime was committed? Let’s look at a particular case. In 1217 George, lord of the manor of Northway in Gloucestershire, accused Thomas of Eldersfield of burglary and wounding him with an axe when he tried to prevent him making off with stolen goods. Thomas’s story, of course, was completely different. He said that relations between him and George had long been tense because he had once had an affair with George’s wife – although this had been while she was married to her first husband. He had refused to marry her after her first husband died, so she had grown to hate him and had poisoned her second husband’s mind against him. Despite this he and George had spent Whitsunday 1217 in an alehouse together and had left it much the worse for wear. On the way home George suddenly hit him over the head with a heavy stick, and wouldn’t stop until Thomas tried to ward off the blows with the axe which he just happened to be carrying. As a result George was slightly wounded in the arm, and ran home shouting that innocent blood had been shed. On reaching his house, George blew his horn to raise the ‘hue and cry’ and then concocted the burglary story so that he could bring a private prosecution (known as an appeal) against Thomas. George’s appeal amounted to a charge of a breach of the king’s peace, and this meant that a trial would have to be adjourned until it could be held before royal judges. In fact, it was not until 1221 that the justices next visited Gloucestershire. During the interval George had Thomas arrested several times, and although Thomas always managed to get himself out of jail, it was an expensive business.
In court at Gloucester, Thomas formally denied the appeal, but a jury of neighbours decided that there was a case to answer. (No doubt they bore in mind that the lord and lady of the manor of Northway were people of influence in the neighbourhood.) The justices ordered that a trial by battle should be held before them when they reached Worcester. Trial by battle had been introduced into English law by the Normans after 1066. In this case it took the form of a duel between the two men in front of a large crowd on the meadow known as Kingsmead near the cathedral. The two combatants were armed with clubs and shields, but used every weapon at their disposal. They fought – as did nearly all in their predicament – literally tooth and nail, biting and gouging. Thomas was thrown to the ground and his right eye was almost completely gouged out. At this point he cried ‘Craven’ – that is, he conceded defeat. Since an omnipotent God was believed to be capable of giving victory to the party with the lesser duelling skills and strength, the court now concluded that Thomas was guilty. The judges could have ordered him to be hanged there and then. Instead they decided to be merciful, and merely ordered him to be castrated and have his eyes torn out. It was up to George’s kinsmen to carry out the sentence – which, supervised by court officials, they did with enthusiasm. Thomas’s testicles were thrown to boys who kicked them to and fro among the girls in an impromptu game of football.
Within a few years of this case, the author of Bracton’s Notebook, an important treatise on English law, wrote: ‘Every corporal punishment, even the slightest, is more severe than any financial penalty, no matter how great.’ The savagery of the corporal punishment Thomas suffered, though certainly less definitive than the death sentences carried out by many modern states, had its purpose. It was intended to create fear. Fearing for their lives if defeated in the duel, the parties in a dispute were under pressure to come to terms before matters came to so horrifying a dénouement. In this particular case, if Thomas had offered large enough compensation for wounding George, the latter would have dropped his appeal. In this sense the system of appeal, duel and corporal punishment suited both those who were after compensation and those who wanted retribution. Naturally many were allowed to have champions to fight for them: women, the young and old, the sick and the maimed. A class of professional champions evolved, men such as Duncan the Scot who fought duels in Dorset and Middlesex in 1229 and 1230. Husbands and wives, however, were regarded as one flesh, so it was laid down in Magna Carta, in Clause 54, that the only appeal of homicide that a woman could make was for the death of her husband.
There were other ways of tackling crime than by the dangerous path of private prosecution. Henry II had in effect created a public prosecution service. In 1166 he ordered that the sheriffs had to empanel a jury in every hundred whose job it was to present – that is, name – those of their neighbours whom they believed guilty of murder, robbery, theft or receiving stolen goods and other serious offences. In this we see the origin of the jury of presentment, the grand jury still in use in the USA. Those who had been named were then to be arrested by the sheriffs and brought to trial before the king’s judges. Sheriffs were ordered to build jails. Court records make plain that most of the accused fled the county, or went into hiding, often in the forests. Hence the most common sentence was outlawry, imposed in their absence. If they appeared before the king’s judges and were found guilty, they were punished by the Crown. They might be hanged, mutilated or fined – but they did not pay compensation to the victim. Only if victims themselves or their relatives chose to go down the old path of the appeal did they have a hope of receiving compensation. But the juries of presentment did at least mean that criminals who belonged to families too poor to pay compensation were now subject to a public judicial machinery. And some kind of check was kept on presenting juries by judges who fined them if they decided that they had made frivolous or malicious presentments.
The judges had clerks who kept brief records of court proceedings, and compiled lists of the fines they imposed. At intervals these lists were sent to the Exchequer, now based at Westminster. The judges found that they had so much business that after they returned to Westminster they continued to sit there, in Westminster Hall, as a central court of justice, the King’s Bench. Increasingly litigants or defendants needed the advice and help of legal specialists. Rich landowners had long retained the services of legal experts to look after their interests, but so great was the increase of legal business to be dealt with, and especially in and around Westminster, that by 1200 a new class of lawyers had arisen, a group of attorneys, based in London, who were willing to represent any client in return for a fee. The legal profession was born, and the suspicion grew that justice was a money-making operation, fees for clerks and lawyers, sweeteners for judges, fines for the Crown.
In these trials how was guilt or innocence determined? Take a case recorded by the clerks of the justices sitting at Launceston in Cornwall in 1201.
Walter Wifin was burgled and boots were found in the house of Lefchild de Ranam. Walter identified them as boots of his taken in that burglary. Lefchild said that he bought them in Bodmin market for twopence halfpenny, but does not know from whom. Further, Walter claims that 11 yards of linen and other goods were stolen in that burglary, and were sold in Lefchild’s house. Lefchild denies. The jurors were then asked, and they said that they suspect Lefchild of receiving. Therefore let Lefchild purge himself by water according to the assize.
‘Purging himself by water according to the assize’ meant that Lefchild would be bound and lowered into a pit of cold water. If the water received him, he was innocent; if it did not, he was guilty.
Before Lefchild was put to the ordeal, he would have been taken to a church with which he was not familiar, and spent at least a day and a night there, fasting and praying in the company of a priest he did not know – and who, no doubt, all too often drew his attention to the church’s finest painting of the Last Judgment, with its lurid depiction of the hellish fate to which the souls of sinners were condemned. Immediately before the ordeal the atmosphere would be further charged as the priest blessed the water, calling upon God to harm the guilty and spare the innocent. If the water received the accused he was deemed innocent and pulled out. If he seemed to stay on the surface, probably struggling and thrashing about, he was adjudged guilty. There was evidently room for interpretation here, with different witnesses seeing different things.
The same was true of the other form of ordeal imposed by English courts, the ordeal by iron. In another case heard at Launceston in 1201, Osbert of Reterth appealed Odo Hay for assault on his way home from Bodmin market, and for wounding him badly. Odo denied it, but because Osbert was undoubtedly maimed and unable to fight a duel, the court decided that Odo would have to ‘purge himself by the judgment of iron’. In this case the accused would have to pick up a piece of red-hot iron, walk three paces, then put it down. His hand would then be bandaged and sealed. Three days later the bandages would be removed. If his hand was healing cleanly, he was innocent; if it looked unclean – if there was suppuration – he was guilty. In this decision too there was room for flexibility.
What happened to Lefchild and Odo Hay we do not know, but there is no doubt that some people were cleared at the ordeal, and others found guilty. In the case of the rich Londoners who went in for housebreaking, one of the richest, John Old, was found guilty in trial by water and was hanged, despite offering the king the huge sum of fifty marks for his life. As a general rule London citizens enjoyed the privilege of not being subject to the rigours of ordeal or duel unless they chose to. But then, and in many societies before and since, people offered to go through the ordeal as a way of clearing their name. Significantly, Henry II laid down that those who were presented by local juries and found innocent at the ordeal still had to leave the country. God had cleared them of the particular accusation, but had not changed the fact that their neighbours looked upon them as troublemakers. Exiling them was a way of dealing with those persistent offenders who had enough coolness of nerve to get through the ordeal.
What Lefchild’s case also demonstrates is that the courts did not rush to send the accused to the ordeal. They followed the procedure outlined in a lawbook attributed to King John’s former tutor, Ranulf Glanvill.
The truth of the matter shall be investigated by many and various inquiries and interrogations in the presence of the justices, taking into account the probable facts and possible conjectures both for and against the accused, who as a result must either be cleared or made to go to the ordeal. If the ordeal convicts him of the alleged crime, then judgment over life and limb depends, as in other cases of felony, upon royal clemency.
Whenever they could the judges preferred to proceed on the basis of testimony and evidence. Trial by ordeal was used only as a last resort. But in the centuries before forensic science, fingerprints, DNA, there was often no evidence, especially where crimes had been committed stealthily, at night for instance, or in cases of murder – as distinct from the open killing of homicide. In such cases the judges asked the jury to decide whether or not the accused should go though trial by ordeal. Defendants in such cases swore to their innocence, using words such as ‘as God is my witness’, so, in the absence of conclusive evidence and as a last resort, it is not surprising that God should be called upon to use his miraculous power of telling truth from falsehood to decide the case.
But at the end of John’s reign the whole system was thrown into chaos. In 1215 at the Fourth Lateran Council Pope Innocent III prohibited priests from taking part in the ordeal. This was an academic decision. At schools and universities many more people than ever before were studying law and theology. The study of Roman law made them aware of a much-admired system that had functioned without ever using the ordeal. For Christian theologians there was no doubt that God could work miracles. He could, for example, make a guilty man’s body stay on the water’s surface. The problem was, however, that the basis of the ordeal was that God was required to work a miracle every time he was asked to do so, but since a miracle was surely a free act of God, this was theologically unacceptable unless the ordeal was, like the Mass, a sacrament. In the Mass a miracle occurred each time a priest said Hoc est corpus meum. But how could the ordeals of iron and water be sacraments? The Church had not instituted them. There was nothing about them in the Bible. By 1215 most educated churchmen had decided that ordeals were wrong. In some ways Innocent III’s decision was a remarkable one. Priests were paid fees for the work they did in making ordeals work. For many churches, their possession of an ordeal pit and of consecrated irons was a privilege that gave them dignity and influence in the neighbourhood. The high-minded pope was requiring that they surrender an important and lucrative right. And they did so.
When the English government first faced up to the problem posed by the papal prohibition, it had no immediate solution. ‘We leave it to your discretion,’ they instructed the judges. ‘Proceed according to your good sense and conscience, ascertaining as far as you can the character of the individuals involved, the nature of the crime and the truth of the matter.’ What the judges eventually came up with was trial by jury. A new kind of jury was invented, not to present a list of names of suspects, but to decide guilt or innocence in particular cases. As one observer remarked, ‘Before the war [the civil war of 1215–17] they had the ordeal of fire and water; now there is empanelling of juries.’ The choice made by the judges was by no means inevitable. Indeed throughout Europe people faced the same dilemma and it was only in Denmark and England that the jury was introduced. What normally happened in hard cases in which there was suspicion but no useful testimony or evidence was that the authorities tried harder to get the accused to confess. Elsewhere in Europe people turned increasingly to torture – that is to say they went down the path of Roman law, for the law of Rome, which knew nothing of the ordeal, was very familiar with the torture of both suspects and witnesses as a way of getting at ‘the truth’. In England torture was authorised in cases of alleged treason, but not otherwise. By contrast the use of torture became a normal judicial procedure throughout almost the entire continent of Europe during the later Middle Ages and early modern period.
In English cases where the right to land was at issue the procedure was trial by battle. The combatants swore oaths that they were fighting for the right, and it was then up to God to decide the right, to test the truthfulness of the contradictory oaths. In this sense the judicial duel was also an ordeal, a bilateral one, but it was a much less religious event than the unilateral ordeal, and did not require the presence of a priest. For this reason trial by battle continued after 1215, and only very gradually declined. Indeed the possibility of an appeal leading to trial by battle remained on the Statute Book until 1819. In another important innovation, known as the Grand Assize, Henry II had granted permission for defendants in a case of right to land to choose trial by jury instead of trial by battle. Glanvill explains the procedure to be adopted in empanelling the jury.
The knowledge required from jurors is that they shall know about the matter either from what they have personally seen and heard, or from what their fathers told them in circumstances such as make them bound to believe them. If none of the twelve knows the truth of the matter, and swears this in court, then others shall be found. If some of them declare in favour of one party, and some in favour of the other, then further jurors are to be added until at least twelve agree.
What was wanted was a jury of twelve who spoke unanimously, who had – like God – ‘one voice’. Although this verdict-giving jury was clearly required to act very differently from a modern British jury, this original mind-set was to be tremendously influential. Until very recently indeed the jury was required to reach a unanimous decision.
When a verdict in such cases had been reached, the matter was closed, and could not be brought to court again. Trial by ordeal had also been intended to produce a final decision (and was often swiftly followed by a hanging), so when the judges presiding over the trial of criminal cases after 1215 pondered the problem of how to replace the ordeal, they opted to follow the formula of the Grand Assize. This had allowed a defendant to choose between battle and jury. So after 1215 the judges allowed a defendant in a criminal trial the choice of whether or not to go before a jury. If he chose not to, he was simply kept in prison. But this was soon felt to be unsatisfactory, and so he was pressured to ‘put himself on the country’ – to choose to be tried by a jury. First, a statute of 1275 specified that the imprisonment should be forte et dure, and then it was decided that the accused should suffer peine forte et dure until they ‘saw sense’. The classic form of peine forte et dure was for heavy stones to be placed on the accused’s chest and the weight gradually increased. In this way, a form of torture was introduced into the English legal system by the side door. Stubborn defendants had the option of being pressed to death rather than go before a jury.
The most famous case of this occurred in the Salem witch trials in Massachusetts in 1692 when Giles Cory chose to die rather than be tried. He did this because he believed he would be found guilty, with the consequence that not only would he be hanged but all his property would be confiscated as well. By being pressed to death, he died innocent and his family inherited his property. It was not until 1722 that the accused’s choice was finally removed. From then on refusal to plead before a jury was regarded as an admission of guilt. This lasted until 1827 when the present formula was adopted. Now if defendants refuse to plead, a plea of ‘Not Guilty’ is imposed upon them. In 2002, in England and Wales, we still live with the convention that when a jury has given a verdict, the case cannot be re-opened. Perhaps not for much longer.