Crime And Punishment In England

An Introductory History

John Briggs, Christopher Harrison, Angus McInnes, David Vincent

• Publisher: Routledge
• Year: 2005
• ISBN:
  9781135369750
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This survey of crime in ENgland from the medieval period to the present day synthesizes case-study and local-level material and standardizes the debates and issues for the student reader.

Chapter 1
The medieval origins of the English criminal justice system

What was the role of law in English medieval society? What did contemporaries understand by the concept of law? Did the practice of law change over the Middle Ages, and if so how? What was the medieval legacy for the English criminal justice system?

Anglo-Saxon society

Land lay at the heart of Anglo-Saxon and later medieval society. Wealth and power were reflected and expressed in the amount of land one held. Furthermore, how one held land determined one’s rights and duties at law. A landed thegn or aristocrat had many legal rights, a ceorl or freeman fewer. But most Anglo-Saxons were unfree, that is slaves, landless labourers, and peasants who held land by a bond tenure. What rights in law did they have? Not many, but even they had some because from the earliest times it was recognized that even the unfree needed some protection at law.

So from the outset there were really two strains in English medieval law: the protection of the individual regardless of landed status, and the protection of property, particularly landed property.

All land was held directly or indirectly from a lord. In theory and in practice no-one owned land. There was then in Anglo-Saxon England a hierarchy of lords, headed by the king. And the basis of that hierarchy was land. Thus, great lords held land from the king, lesser lords from the greater lords, and so on. Think of it as a pyramid of power with the king at the head, great lords or thegns below him, and lesser lords below them. Even that great institution the Church held land from the Crown. How was this hierarchy managed? Mainly through landholding. Each lord from the king down had his vassals, who held land from him in return for rents and services. These vassals were often themselves lords with vassals under them, owing rents and services.

The relationship of lord and vassal was the key to much law. When a lord granted land to a freeman (the notion of freedom here is important), a tripartite ceremony occurred in which a freeman did homage and swore fealty (loyalty) to his lord. In return for this surrender and promise of service, the vassal was rewarded by the lord with his fief, that is his land, in what became known as the investiture. Once this ceremony had taken place both lord and vassal acquired rights and duties, and these formed the basis of much medieval law.

One of the principal duties of a lord was to uphold the rights of his vassals, that is to provide them protection. First the vassal’s rights on his land had to be protected. Secondly, where a lord’s vassals were in conflict one with another, he had to make judgements between them. In short, the lord needed a court. Thus, one of the principal elements in lordship was the right (even the duty) to hold a court. In that court vassals got justice and the lord got honour, power and profit. In theory every freeman was either a lord or the vassal of a lord. In theory this relationship was voluntary, but in practice there was increasing pressure on men to take a lord. For example, the Anglo-Saxon king, Aethelstan insisted that all his subjects take a lord:

With regard to lordless men from whom no [legal] satisfaction can be obtained, we have declared that their relatives shall be commanded to settle them in a fixed residence where they shall become amenable to public law, and find them a lord at a public meeting. If, however, on the appointed day they [the relatives] will not or cannot, he shall be henceforth an outlaw [a man outside of the protection of the law], and he who encounters him may assume him to be a thief and kill him.

There was then a strong incentive for the individual to take a lord, for to be without a lord was to be outside of the protection of the law. There was, too, a strong pressure on him from the community for, as Aethelstan’s law says, he who was lordless could give no legal satisfaction, that is the community could not get legal redress from a lordless man.

Clearly, the more vassals one had the richer and more powerful one was. Thus, the greatest lords were the kings because, in general, they had the most vassals. Kings had a special place in the hierarchy of power. They were not only pre-eminent, they were essentially different from other lords. They had no lords over them; by their coronation and anointing, they enjoyed a quasi-sacerdotal status. They were, in a sense, protected by God and the Church.

Gradually kings came to extend their jurisdiction directly or indirectly over all their subjects, not just their immediate vassals. How did this come about? First, the king had a need to adjudicate in disputes between his officers and his subjects, particularly on questions of taxation. Where could a subject go who had a complaint against a royal official except to the king’s court, the witan? Then there were groups in society who, for a variety of reasons, did not have secular lords, for example the clergy, women, foreigners and the Jews. The king extended his protection or peace to these groups. Then he extended his protection over special places such as the king’s highway (200 yards either side of the main road) to protect merchants and other travellers, and the lands of the Church. In this way, the king’s court became in time the nation’s court, the final and supreme court of justice.

Alongside this development of direct royal justice emerged the acceptance that only the monarch could grant legal franchises, rights or, as they were known, “liberties”. If a town wanted to become a borough, that is to have the right, inter alia, to hold its own courts, then it needed a royal charter.

It was this combination of the extension of royal justice and the control of private justice that led to the development of the medieval concept of the state as that area over which a monarch ruled and in which he had the duty to protect all according to their estates or, as we would now say, their socio-economic group or class. Thus by the mid-twelfth century, English kings began to call themselves king of England (the place) rather than king of the English (the people). By the thirteenth century the law was firmly established as an integral and central part of society; indeed, in a sense it defined it.

The law and courts of Anglo-Saxon England

The first and most important thing to note about Anglo-Saxon England is that it was a slave society. In most cases the protection of the law applied only to freemen and above.

Secondly, for much of the Anglo-Saxon period, England was not a unified kingdom, and even when nominally under a single king its areas had different laws. The most significant regional difference was between the Danelaw of eastern England and the rest. In Danelaw, that part of England settled by the Viking invaders, there were more freemen lower down the social scale than in the old Anglo-Saxon kingdoms, and it had fewer slaves. Because of raiding and irregular invasions there were different laws applying on the Welsh and Scottish borders. London seems to have developed its own system of justice from an early date.

Thirdly, law was made by the king in consultation with his senior clerics and secular lords. When an Anglo-Saxon king issued or “made” his laws, they were presented as simply the writing down of already customarily agreed precepts. What made them special, what gave them enhanced authority was that they were written down. In a society largely based on oral transmission of information, anything written down had a high status.

Fourthly, the laws as written down covered only a very narrow area: man-slaying, theft, particularly the theft of stock such as cattle and horses, the abduction of heiresses and the maltreatment of maidservants.

By the end of the tenth century, England was divided up for administrative and legal purposes into shires (counties), each headed by a sheriff (who was the king’s agent) and an earl, who was the largest landholder in the county. Each shire was divided into hundreds, each in turn headed by a bailiff appointed by the sheriff. The hundred was in origin a fiscal or tax unit, dependent on a royal manor, at which the king’s taxes and other revenues were collected. In theory, a hundred consisted of 100 hides, each hide being the land necessary to maintain one household.

The principal courts of public justice in Anglo-Saxon England were the county courts and the hundred courts. At the hundred court all freemen were required to attend. There the sheriff and other magnates took the view of frankpledge. This was the system whereby young freemen were sworn in to maintain the king’s peace. They joined a tithing, a group of neighbours responsible for each other’s actions.

Minor cases were heard at a hundred court. More serious cases and those involving more important people were heard in a shire court, to which representatives from all the manors and all the local magnates came. In both hundred and shire courts, the judges were local noblemen and ecclesiastics.

Thus, all freemen were subject to royal justice through this hierarchy of courts. There was one exception to this general rule, the borough courts. Burghs or boroughs were special places. In origin they were fortified settlements established to protect England from the ravages of the Danes. In return for this, the townsmen were given special legal privileges or “franchises” as they became known. Here the suitors, jurymen and judges were the townsmen themselves. No superior lord was involved, and justice was not dependent upon landholding and vassalage.

Cases involving very important persons, such as thegns or bishops, and those involving people from different shires could be tried in the king’s court, the witan, before the king. As Alan Harding writes: “There was then a single hierarchy of meetings or synods from the king’s court down through the shire to the hundred in which ecclesiastical and lay judges sat side by side. “This hierarchy was reflected in the frequency of meetings of the various courts: the witan met as and when necessary; shire courts every six months; borough courts every four months; hundred courts every four weeks.

In general this system of justice described applied only to freemen. Where did the unfree go for justice? In addition to the courts of public justice, there were many private courts applying what came to be called customary law. Each lord held his own court in each of his villages and manors. In these he administered justice to his own peasants and slaves. In many cases the lord had rights up to and including the passing of capital sentences on these unfree men. The unfree looked to their local lord for justice and were largely denied the prctection of royal justice.

Methods of trial

There were two basic methods of trial in Anglo-Saxon England: compurgation and ordeal.

In trial by compurgation, the jury or juratores (those sworn), usually numbering twelve, were summoned to swear to the truth of the submission of the defendant or complainant. They did so on the basis not of evidence presented in the court but of their knowledge of the disputants and the alleged offences. It was, says Warren, a form of arbitration with a tendency towards compromise.

If compurgation was not possible then one was thrown back on trial by ordeal. Such a trial was conducted by a priest in a church before witnesses. God not man was determining the guilt or innocence of the accused. It was an arational system of trial. There were three basic forms of trial by ordeal: by hot water or hot iron; by consecrated bread (the corsnaed); by cold water.

In the hot water ordeal, a stone was placed in a cauldron of water, which was then heated. The fire was removed and witnesses and the accused admitted to the church. Prayers were then said, and the water and stone allowed to cool a little. The accused then had to take the still hot stone out of the cauldron. In the ordeal of iron the accused had to carry a heated weight of iron a certain distance. In both cases the accused was considered innocent if after three days his injured hand had healed without festering.

In the ordeal by consecrated bread, the accused was forced to swallow a piece of consecrated bread after it had been abjured to choke the guilty. This form of ordeal was used on clerics.

In the ordeal by cold water, the accused was tied up in a crouching position with his wrists under and between his legs. A rope came up between his legs and a knot was tied in it at the length of his hair. He was let down gently into water so as not to make a splash. If he sank down to the knot he was adjudged innocent; if he floated he was guilty. Trial by this form of ordeal was considered particularly undignified and was reserved for serfs.

Criminal law

Alan Harding has said that “The origin of the criminal law [was] the assumption by the state of the responsibility for avenging personal injuries.” What, in the case of England, did this mean in practice? The Anglo-Saxon system of criminal justice was mainly concerned to resolve feuds by financial compensation, either for the victim or his family. Consider these early seventh-century laws of Aethelberht: a pierced ear was to be compensated with 3 shillings, a lacerated ear with 6 shillings, and a severed ear with 12 shillings.

Financial compensation was preferred to corporal punishment. Even some forms of murder could be paid for through a money-payment. (In general, prison was a place where one was held before trial rather than a place one was sent to for punishment on conviction. The only exception to this general rule was for clerics, who could be and were imprisoned for felonies.) The following law of King Ine illustrates the way a felony (an offence punishable by death) could be mitigated by a money payment: “If a thief is caught [in the act] he shall die the death or his life shall be redeemed by the payment of his wergeld.” Wergeld was what you had to pay if you killed a man—the sum varied according to the status of the person killed; an earl’s wergeld was larger than a ceorl’s. This sum was paid to the dead person’s relatives or kindred. In this case we can see that the wergeld applied also to offences other than murder. Only if the criminal was a notorious evil-doer and a danger to the whole community was corporal punishment insisted upon, as illustrated here by another of Ine’s laws: “If a commoner has often been accused of theft and is at last proved guilty his hand or foot shall be struck off.” Perhaps the rnost striking feature of the Anglo-Saxon system of criminal justice was the preference for financial compensation for victims or their surviving relatives. However, persistent offenders got short shrift, and the punishments were cruel.

The Norman conquest of England and the law

The Norman conquest of England in 1066 led to some radical changes in English criminal law. With the Conquest, and for the first time, all land was held directly or indirectly from the Crown. In Anglo-Saxon England some land had fallen outside of the crown’s control. Now, all tenants-in-chief (i.e. the principal landholders) owed suit to the king’s court (the curia regis) for their land. The tenants-in-chief had their own tenants who owed suit to their courts, the so-called honorial courts. The tenurial revolution of the Conquest, by which Anglo-Saxon lords were replaced by Norman and French lords, created a revolution in land law.

Up to one-third of England was designated “forest”. In these areas “forest law” applied. Thus, much of England, albeit the more sparsely populated areas, came under a new law and new courts. Forest law was not true law, its rules were arbitrary and its introduction was deeply resented by the Anglo-Saxons.

Independent church courts were established. This led in time to the separation of ecclesiastical and secular law. Church law went in one direction, closer to the old Roman law, state law went another. There was a sharp decline in slavery, that is most men became subjects. The language of pleading became Norman-French, the language of record Latin, which created problems of translation. In Anglo-Saxon England the language of pleading and record had been English. The dominance of Latin as the language of record was not to be challenged until the Commonwealth under Oliver Cromwell in the mid-seventeenth century.

The Normans introduced a new method of trial called trial by battle. In such a trial defendant and complainant fought either in person or by proxy through the use of a champion. Such champions could be used only in disputes over land. Where felonies such as murder were concerned, the defendant had to appear in person. The two combatants fought to a standstill. The loser, if not already killed in battle, was subsequendy hanged. As in ordeals, the ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Chapter 1: The medieval origins of the English criminal justice system
• Part I: The early modern period
• Part II: Crime, police and punishment in England after the Industrial Revolution, 1800–75
• Part III: The making of the modern criminal, 1875–1960
• Chapter 16: Epilogue
• Glossary
• Bibliography
• Medieval