 |
||
| CRIME AND JUSTICE |  |
|
|
INTRODUCTORY ESSAY
Law and lawlessness | Development of the legal system | Crime detection | The judicial process | Punishment | The legal profession | Further reading |
||
The preservation of order and the protection of individuals and their property from illegal acts are a fundamental part of the mandate of government, and therefore the mechanisms for policing society and administration of justice are important to the success of any government. Quite apart from their customary or statutory obligations in that regard, the authorities of self-governing towns in the Middle Ages were – or at least gave the appearance of being – concerned for the reputation of their communities as well-administered, predominantly law-abiding, peaceable, God-fearing, honest, and respectable. Such an image was conducive to keeping in the good graces of one's overlord (who had delegated and could revoke local autonomies), to attracting desirables to settle, and to encouraging outsiders to do business there. Maintaining a good reputation operated at various levels, such as the construction and maintenance of appropriate urban fabric, regulating social and economic activities according to widely accepted norms and standards, and dealing with lawless behaviour in a just and effective fashion. This was an imperative not just of social control but of communal prosperity.
While we must remember that official records, since many relate to legal proceedings of some kind or other, paint an unbalanced picture of medieval English society, it is not too unfair as a generalization to say that the Middle Ages were a violent time. This in the sense that there was little respect for the abstract concept of rule by law (i.e. law-abiding behaviour), and its pyschological restraints; many people resorted cold-bloodedly to physical force to achieve their self-interested ends, or were quick to express anger through violence. The great majority of offences complained of to the courts were assaults and petty larcenies. Excessive drinking and competitive recreations could also play a factor in the propensity for brawling or worse.
Late medieval England was in fact notorious throughout Europe for its high crime rate. Adherence to the law seems to have fluctated, contingent upon a number of factors, but most particularly the ability or vigour of the king in upholding the law and punish offenders. Increased lawlessness is a characteristic of royal minorities or periods when English society was disrupted by civil war or corruption at the highest levels. On the other hand, even when the king was a strong character, his absence abroad fighting wars also tended to give scope to lawlessness at home.
Another factor was that the example for those in lower ranks of society was set by those in the upper echelons. We see clear examples of this during the reign of Edward II, and again in the fifteenth century – perhaps the most lawless period for later medieval England – when feuding lords maintained their supporters in illegal activities and were willing to pervert the course of justice to protect them from legal retribution.
The counterbalance to lawlessness was less respect for the law per se, than a desire for social order. The relatively complex character of urban society, with its disparities and with people constantly interacting in complex ways, made the administration of law a key problem for urban government; not for nothing were courts frequently the central institution of that government.
During the course of the High and Late Middle Ages, there was steady growth in the rules, procedures and instruments of the legal and judicial systems. Besides the central courts administered by royal officials, the king's travelling justices, the county courts, and the various seigneurial jurisdictions, there were a variety of levels of local judicial administration affecting medieval towns. At the risk of oversimplifying, at the root of the judicial system were the courts of the county (or shire) and the hundreds (subdivisions of the shire). Other jurisdictions might be considered special, requiring specific authorization – this included the king's central courts – so that particular types of cases might be heard elsewhere, or individual cases be withdrawn to a different court.
In Anglo-Saxon society, much of what was "law" was essentially custom, and the administration of law was undertaken by the populace through the folkmoot, sometimes through guidance from small bodies of "doomsmen" about whom we know little. Solving a crime could, however, be difficult and frequently came down to the good or bad opinion that the community had of the accused, or to the judgement of God – through the swearing of solemn oaths or the ordeals of fire or water.
Crime detection was equally problematic. In a non-bureaucratized society, personal relationships were the basis for behavioural control. There was much reliance on self-policing within communities through the mechanism of the "borh", in which a group of (typically) twelve men acted as mutual sureties or pledges for each other's behaviour; they might bring a delinquent member to justice, but also support a member wrongly accused or faced with paying compensation for a crime. The effectiveness of this association lay firstly in its voluntary nature (so that one person did not have to stand borh for another, if the latter was known to be of bad character) and secondly in the fact that the members of each group – perhaps originally kin, but certainly later involving friends and neighbours – had close social bonds and interacted regularly in everyday life; these factors were psychological deterrents to deviant behaviour.
After the Conquest, the new rulers of England made efforts to introduce new methods of judicial administration, without entirely abandoning what they had inherited from their predecessors. Courts of special jurisdiction – such as those of boroughs – continued to administer customary law. Custom was elaborated through new precedents which contributed to the development of common law – that is, the customs (processes and remedies) of the king's court that were gradually spread across the country as a national standard – and set the scene for cases to come increasingly under royal jurisdiction. Sessions of royal justices in the shire courts administered the common law. Henry I introduced itineration to assert his fiscal rights, sending judicial delegates to visit the counties to ensure that the crown was compensated for any breaches of royal rights and privileges. The royal justices' principal task was to uphold common law, while at the same time allowing for local custom, insofar as it did not conflict with common law.
It was in part the prospect of income from judicial fines that encouraged Henry II towards regularizing a system of judicial circuits through the localities to preside over cases involving infringements of the king's peace – the list of crimes considered to fall under this banner expanding over time – as well as to undertake other duties such as investigating local officials' performance of their duties. (On procedures for conducting an eyre, see Bracton). The system of circuits, or iters or eyres as they were known, reached their peak of activity and fullest scope, in terms of number of offences investigated, under Henry III. Not until Edward I's time, however, was there a serious attempt to actually create new legislation through royal statutes. By that time the eyres had become bogged down with the volume of business with which they had to deal; it had already, by 1258, become the unwritten convention that no county be visited more than once every seven years. By the end of the century, the eyre had ceased to be an important part of the judicial system, and attempts to revive it in the first half of the fourteenth century proved abortive.
Popular judgement remained in effect at the lowest level of judicial administration, which was leet jurisdiction. A leet was a geographical area – sometimes a subdivision of a hundred – that may originally have served as a unit for organizing military conscription, but also came to refer to an area of jurisdiction. In places this came to be fused with a crime detection mechanism imitative of the borh, but lacking its voluntary nature: the tithing, collectively responsible for identifying any illegal acts of any of its members, was a compulsory grouping in which the membership was dictated from above. This was the system that the Normans called frankpledge, and it was this that leet courts administered. Some aspects of customary law were enforced through this system, which was adapted to incorporate administration of the Assizes of Bread, Ale, Wine, Weights and Measures and, to a lesser extent, the Assize of Arms.
This kind of jurisdiction was usually exercised once a year, sometimes more, and usually at dates consistent within each borough from year to year. It is slightly misleading to talk about leet courts in that there tended not to be a specific court for administration of frankpledge. It was more commonly handled as special sessions of an existing court, sometimes sufficiently distinguished from normal court business to warrant their own records (as at Norwich or Lynn), but sometimes not (as at Colchester). Some relatively well-documented urban examples are from:
Similar jurisdiction, over minor criminal cases, was exercised in London via the wardmotes presided over by the aldermen. At Coventry the leet appears to have been a fundamental unit of local administration but, when seen in the fifteenth century, had so much merged with other administrative elements that the original frankpledge system is not much in evidence. Similarly, at Nottingham the remnant of leet jurisdiction had, by the late fourteenth century, evolved into an institution called the Great Tourn.
Although frankpledge juries might occasionally make accusations of homicide, such cases were initially reported to and investigated by the coroner. In cases other than accidental death, if he, or the capital pledges, could identify a culprit then an arrest would be made if possible, and the accused tried by king's judges. Similarly, cases of theft might be reported by tithingmen but would be referred to the town court for closer investigation before any judgement was passed; here too the coroners might play a judicial role, for they were not (as today) restricted to investigating suspicious deaths, but were more generally keepers of pleas of the crown. It was more the minor cases of trespass, public nuisance, encroachments, property disputes, assault, petty theft, and debt that the borough courts handled – precisely the minor matters the royal courts preferred to avoid, if they could.
The fourteenth century saw further expansion in the scope and predominance of common law, and the continued evolution of a more complex hierarchy of courts, with the royal courts at Westminster at their apex. Quo Warranto proceedings of the late thirteenth century had already made customary law administered in boroughs more dependent on the authority of the king. The plague of mid-fourteenth century added impetus to the development of a royally-controlled judicial system; the challenge of keeping social order after the disruption, and particularly of enforcing the Statute of Labourers, which addressed the problems resulting from the death of a third of the labour force, resulted in justices of the peace – already the subject of experiment in the early fourteenth century – becoming a fixed part of the judicial landscape. Towards the end of the century and in the fifteenth, J.P. powers were given to urban executives, thus bringing the boroughs even more into the mainstream of the administration of justice.
Despite popular distaste for the legal system, because of its expense, protracted process, and vulnerability to manipulation, the fourteenth century saw an increase in litigiousness, as avenues opened up for people to complain about any perceived wrong, and as the royal courts opened themselves up to appeals of even minor cases from lower courts. The customary jurisdiction of the boroughs was thus undermined.
There being no police force in medieval England, detection was either a matter of individuals bringing complaints, juries denouncing crimes some time after the fact, or hue-and-cry being raised to alert neighbourhoods to an offence in progress or freshly committed. Raising the hue was an obligation of the parish in which a crime was discovered; failure to raise the neighbourhood in pursuit of a criminal exposed it to the liability of a fine. The concept of communal responsibility also found expression in that neighbours of victims of a crime might be expected to appear in court, as either potential suspects or likely witnesses, and in the responsibility of a frankpledge or of a whole ward to report crimes. All male adults were required to take oaths periodically not to commit crimes themselves, nor to harbour, sustain or aid criminals, but to report any criminal – or person giving aid to a criminal – of whom they were aware; as well, they were required to be cautious about acting as hosts of strangers. Parishes were often used as units of communal responsibility for crime reporting; their leading members might be expected to keep an eye on suspicious characters residing within the parish, and parishes were the logical units for taking responsibility for guarding felons who sought to evade justice by taking sanctuary in churches. However, as the later Middle Ages wore on, the concept of collective responsibility for the actions of the members of the group was undermined by changes the structure of social relations.
Henry II, combatting lawlessness engendered by the anarchy which had preceded him, did not create but regularized some policing measures through the Assizes of Clarendon and Northampton. He and his successors increasingly asserted jurisdiction over offences previously tried by shire, hundred or seigneurial courts, this jurisdiction being expressed through the royal courts and their "branches" as the eyres of the itinerant royal justices effectively were, through assizes and special judicial commissions held across the country, and through local courts (including those of many towns) presided over by urban executives who were at least partly answerable to the king. Henry also placed a reliance on juries to make presentments of crimes, and other juries to give verdicts as to guilt or innocence. Another aspect of his extended influence over the administration of justice was that complaints of offences could be made directly to his court, to obtain writs instructing local officers or courts to ensure the complainant received justice. Royal writs, which had many purposes, were another tool for asserting central authority over courts in the regions, by issuing commands or authorizations.
Royal grants of chartered liberties to towns, while in one sense they created franchises that gave certain exemptions from outside jurisdiction, in another they were simply transferring responsibilities from external royal officers to officials chosen by the burgesses. Sheriffs, for example, were increasingly barred from direct interference in urban judicial administration; instead they could only ensure royal writs were passed along to urban officials. Thus, from the perspective of the Crown, these grants became part of the larger effort to create a national system of administration and law enforcement that linked the centre with the localities. Coroners, for example, were important officers in a number of boroughs; their core duty was to investigate sudden deaths, but they also enquired into felonies, a category encompassing theft, rape, and homicide. Their inquests were often able to throw light upon circumstances surrounding a crime.
Contrary to the picture painted by late twentieth century authors of historical fiction, there were no officials who had responsibility for crime investigation at all comparable with modern detectives. Coroners were expected to examine corpses and to interview witnesses to homicides, and thereby to try to identify perpetrators of and accessories to the crimes. But this was through the mechanism of an inquest convened, frequently, at the scene of the crime, not through any extended investigative process involving the systematic accumulation of evidence (despite the occasional requirement to use blood traces, footprints etc. to identify the scene of a crime, if the body had been removed); speed was of the essence if an arrest was to be hoped for. Failing an arrest, the coroner's aim was to identify everyone implicated, or potentially implicated, and attach them to appear before the justices for further examination. Even towards the close of the Middle Ages, when borough bureaucracies were expanding, officials with police-type duties were well outnumbered by the lawless elements – whether troublemakers or professional criminals – in towns.
Even though many seigneurial franchises remained to limit the power of the Crown, both the common law (interpreted and elaborated by the king's justices) and the concept of the king's peace were gradually extended to bring a number of offences within their scope. By the time of Bracton (mid-13th century) the theory was being propounded that the king alone was the source of all legal jurisdiction. Royal keepers, and later justices, of the peace became a mechanism for investigating alleged infringements. Breaking the peace was a charge frequently brought by juries to the attention of borough courts; and, by the fifteenth century, urban executives were being closely integrated into the administration of the peace.
Those guilty of homicide – whether intentional or accidental – and theft often pre-empted crime detection by fleeing; even the innocent sometimes fled, in panic or fear of being convicted unjustly. Courts often ruled on accused parties in their absence, with outlawry the normal consequence of a conviction. Some fled to the sanctuary of churches, after which there were three possible outcomes: acquittal; escape and flight; or abjuring the realm (confession followed by banishment).
The process of legal trials was a complex one with numerous variations, and altered during the High/Late Middle Ages, so that any summary is susceptible to those errors to which generalization is prone. In many regards the medieval process was not dissimilar from the legal process today. The modern distinction between criminal and civil cases existed implicitly in medieval England, although it was the Norman and Angevin kings who initiated developments which led to serious crimes – notably homicide and other felonies – coming under the purview of courts which were essentially under royal jurisdiction. The jurisdiction of town courts was principally over minor offences and civil actions, the latter covering primarily actions involving real estate (e.g. questions of rightful possession) or trespasses against individuals (e.g. debt, breaches of contract). The treatment of such cases might vary from town to town depending on different local customs.
Cases were generally begun by an accusation made by an individual, normally the alleged victim, or by a jury – a group so named because they took an oath to tell the truth; there was a long tradition (such as through the tithing system) of members of a community presenting (reporting) crimes in local courts or judging as to the guilt or innocence of the accused, but in the thirteenth century the impanellment of jurors for one or other of these purposes became more widely adopted by courts at various levels, superseding trial by ordeal. In default of a prosecuting party or jury presentment, the authorities might sometimes insist on a crime being heard in the courts, if it appeared that the king's peace had been broken. Parties to a case generally had to find guarantors: complainants to assure the court that a charge would be followed up, and defendants to assure the court they would appear to answer a charge. Should either party neglect to appear, their guarantors were liable to be fined.
Those accused of serious crimes, such as homicide or felony, might be ordered by the court to be arrested to face trial. However, prison facilities in most towns being very limited, the more common practice – particularly in civil cases – was to summon the accused to the next court session to answer a charge. If the accused failed to appear on that date, guarantors faced the court's wrath and/or the goods of the accused were ordered to be distrained to pressure the accused into appearing. Distraint was often not a very effective measure to persuade offenders to submit themselves to justice. If repeated distraint failed to have effect, arrest (if possible) might be ordered or, in civil cases, the distrained goods might be delivered to the accuser seeking compensation for an alleged injury; outlawry was restricted to courts higher than those of urban status. On the other hand, once the accused appeared to make an initial response to the charge, and to present guarantors who would offer the court assurance that the accused would defend, the case was considered to have begun; the process might then be subject to a series of delays through essoins from either party.
There were a number of ways in which proof of guilt or innocence might be determined, after any effort had been made by a party to obtain summary judgement on grounds of some legal technicality.
Special provisions were made for speedy justice in cases where visiting merchants were a party, or where occupants complained of being recently dispossessed of their dwellings. The Law Merchant originated (perhaps partly outside England) from local customs, regulations of merchant gilds, and procedures at courts held at fairs, where men met for only brief periods and on-the-spot justice was a necessity. Another special situation involving merchants, and again particularly merchants temporarily visited other places to trade, concerned withernam, a retribution procedure echoing the ancient principle that all members of a community – in origin, a community defined by kinship – were potentially answerable for the wrongdoings of one of their members. (On this principle, see the charters of London, Nottingham and Northampton).
Civil or criminal cases were, on the whole, considered by the Anglo-Saxons to be personal matters, and the basic punishment was financial compensation to victims, or their kin. The Normans introduced the bringing of accusations by "appeal" of the victim, but this remained essentially personal. Breaking the king's peace was a concept that expanded, making it possible for the crown to act as plaintiff in the absence of any other.
Bracton provides an interesting passage on the kinds of punishments under the following broad categories:
Imprisonment, the most common punishment for criminals today, was in the Middle Ages less a punitive tool than a means of detaining accused persons until their cases could be heard – particularly if the accused could not find bail (normally two or more persons who would guarantee the accused's appearance at trial) or the crime was too serious to grant bail, e.g. red-handed theft, homicide – or holding convicted persons until they paid their fines, or at least found guarantors for their doing so. In the latter context imprisonment had a coercive rather than a deterrent purpose.
Gaoling convicted offenders became more common towards the close of the Middle Ages, as new legislation addressing new forms of crime began to prescribe imprisonment as a punishment. And as bail became a less reliable assurance of an accused party appearing for trial, as the frankpledge system declined and social relations became less rigid. For example, a minumum of one year's imprionment, without bail, was prescribed by a statute of 1414 for those participating in serious riots (causing harm to persons or property), and shorter periods for involvement in minor riots. Still the intent was not to persuade wrongdoers to mend their ways, but instead simply to remove them from society.
Many inmates were debtors, incarcerated until they or outside supporters raised enough money to repay the creditors, along with the sometimes exorbitant fees gaolers charged prisoners for supplies or services. Imprisonment of felons, on the other hand, was usually unnecessary, since they were executed – not only murderers, but thieves, if what they had stolen was worth more than a shilling. Minor thefts (i.e. under a shilling) might warrant a brief stay in prison, but such cases were often dismissed. Those who killed while insane might be held in the king's prison during the king's pleasure, while those guilty of homicide by reason of self-defence were also held in prison, until they had been able to petition for and obtain a royal pardon.
A growing frequency of sentences of imprisonment – although it never became the principal form of medieval punishment – necessitated an increase in prison space; or perhaps it was the growing number of gaols that encouraged greater application of incarceration. Most towns of any size probably had at least one gaol since the twelfth century. In the later Middle Ages some had more than one; these were usually small prisons, often in the town hall or in some tower that was part of the urban defences. Where the number or size of spaces allowed it, there might be some effort at segregating prisoners in terms of the gravity of their crimes, their social status, or their sex. This may suggest some concern about harm or corruption to lesser offenders if they were mixed in with hardened criminals.
 |
This exhibit in Micklegate Bar, York, although its
subject is imprisonment of Jacobite rebels, gives some idea of how spaces
within a city gate could be used as gaols. Photo © S.Alsford |
Royal prisons were generally more secure than town prisons, judging from the number of escapes from the latter, which were often adaptations of other structures or modest constructions that may not have been difficult to break out of. Escapees tended to be professional criminals seeking to make themselves scarce, or those liable to execution. For lesser offenders, it was better to bide your time until you could pay your fine or buy a royal pardon. Life in gaol was not so intolerable for those able to pay the gaoler for comforts or services. Those who had neither money nor generous friends or relatives, on the other hand, were left to their own devices and many doubtless succumbed to starvation or disease. An escape to sanctuary from Norwich gaol ca.1286 required one accused thief to carry another on his back, since the latter's foot had rotted away, due to long imprisonment. The number of deaths in prison may have been one of the best deterrents to lawbreaking.
Financial compensation to victims or fines payable to (or confiscation of property by) the authorities, and execution were more common punishments in a society where there was no very effective prison system. Indeed, both national and local authorities liking for the judicial system as a source of income may have been a disincentive to develop a prison system. Fines were either set at the discretion of the judges, or assessed by a special jury; in either case, the social status of the offender – that is, the ability to pay – was usually taken into account. For minor crimes, the poor were often forgiven their fines, although whether this was a matter of mercy or simple recognition that there was no prospect of payment is not easy to judge. For the wealthy, purchase of royal pardons for serious crimes was an option. There was a saying in the late Middle Ages that poor men were hanged by the neck, rich men by the purse. Some viewed pardons pre-emptively; that is, they purchased them in anticipation of being tried at some point for past, or even future, crimes. The very frequent granting of pardons in the late fourteenth and fifteenth centuries was a cause of repeated public complaint.
Other than execution, corporal punishment after the Norman period and before the Tudors was relatively uncommon, while that involving terror or mutilation was rare (although lawless elements seem to have used mutilation for intimidation purposes). It was in fact more common in the towns, relying on customs that were somewhat conservative, than in rural areas, where it was perhaps not in the best interests of lords to remove the hand, eye or other useful part of their labourers. Similarly, whereas hanging was the normal method of execution throughout the country, in towns there are instances of other methods: examples include burning alive, throwing into a well or over a cliff or into the harbour at high tide, and a crude form of the guillotine. Hanging itself was a matter of strangulation, not neck-breaking. For some of those fortunate enough to survive sometimes hours of being thus hung, revival after being taken down might lead to a royal pardon on the assumption that a miracle had occurred. For those guilty of the most heinous crimes (e.g. traitors), drawing and evisceration were associated with a brief hanging, and then the body was cut up, tarred, and its parts displayed atop town gates as a warning to others.
Sometimes minor offences against the community were, however, punished by local courts through some form of public humiliation or exposure, often combined with physical pain or discomfort. Most common was the hurdle and the pillory, or its equivalent for women (notably whores and brothel-keepers) the thewe. The crude cart known as the tumbrel, or cucking stool, was used to parade market offenders through the streets, or to display them in a state of embarrassment in the marketplace or other public place; it also came to be used for women notorious for persistent oral abuse, although the more usual medieval punishment for that was the scold's bridle. Stocks were not so common in the Middle Ages – the pillory serving that purpose – nor was ducking; tumbrel tended to be prescribed by the law or adjudged by the courts for female offenders rather than pillory, a more physically demanding punishment. A branding, a public flogging (typically at the pillory), or amputation of a body part were likewise uncommon, but not unknown, punishments in towns. Imprisonment for specific short periods as a deterrent, or longer periods until a rebellious offending party submitted to authority and made amends, might also be used as a means to punish lesser offences. For less serious offences, or first-time offenders, if a fine was felt insufficient, it might be considered suitable to do damage only to the offender's reputation, and set a public example; someone selling bad food or drink, for instance, might be required to eat or drink samples in public, and/or the bad drink might be poured over his or her head. Or, in a London case of 1364, a perjurer was imprisoned for a few days, then brought out into a public session of the husting, where forced to stand on a stool, bareheaded, and his crime publicly proclaimed.
Several forms of punishment involved exile from society, either from the immediate community or from the realm. Abjuration was a possibility in cases of homicides or thieves, but only if the accused were able to win sanctuary first. Offences against the community, where not crimes subject to common law, might be punished by deprivation of the franchise (in cases of freemen) or of the right to practice a craft or trade, or the medieval equivalent of "being sent to Coventry" (i.e. social excommunication). Outlawry was another form of being made an outcast, but less a punishment than a deferral of execution until a criminal convicted in absentia fell into the hands of the authorities. Children under 12, too young to be in frankpledge (which put them "within the law"), could not be outlawed. Women likewise were considered not to be directly under the law; instead of being outlawed, however, they could be "waived", a form of social abandonment which denied them the protection of the law. In non-capital cases, if defendants had no means with which to pay a fine, the authorities might prefer to banish them from the town – imprisonment being an alternative that would have incurred costs to the community.
Justice being uncertain in a society where detective and judicial systems relied more on guesswork than evidence, those who could sought to lessen their punishments by claiming "benefit of clergy": the right, by being in holy orders – and there were many who were in lesser orders – to be tried, judged and (if convicted) punished by ecclesiastical courts, since punishments there were lighter. This was one of the Church privileges that Becket gave his life to defend against Henry II's judicial reforms.
|
|
|
(top left):
Gallows, illustrating why in Latin the term
furcae (forks) was used.
From Thomas Wright, The Homes of Other Days,
London: 1871. (top right): London's pillory, in the time of Edward I. From H.T. Riley, ed. Liber Albus, vol.3, London, 1862. (below): Baker strapped into a hurdle and dragged through the city streets, with his defective loaf tied around his neck, in the time of Edward I. From H.T. Riley, ed. Liber Albus, vol.3, London, 1862. |
|
|
|
The emergence of the legal profession in medieval England is a subject on which historians do not yet have a complete picture. It is most commonly studied in the context of the royal courts centralized at Westminster, because they were long-established, complex and sophisticated, and well-documented. Or studies have focused on the highest levels of the profession (justices and sergeants-at-law). Relatively little attention has been paid to lawyers operating in localities such as boroughs.
In the Anglo-Saxon and Norman periods, reliance was placed on juries to know local custom and be able to pronounce judgements on wrongdoers. In some places we see signs of a group known as "doomsmen" who appear to have been almost professional judges/jurymen; there are hints that the role was hereditary. More typically, sheriffs were court judges, but did little more than preside over court proceedings. Under Henry II, however, judges began to have the authority to give verdicts, and a nucleus of legal experts began to form, serving as the royal justices itinerant, holding eyres (the term meaning "journey") in different parts of the country.
In boroughs the courts were presided over by the chief officers, who could be expected to have some knowledge of local laws, since those were the foundation of their administration. Such little evidence as we have for the early period of borough courts suggests that some men represented themselves, or sought support from fellow townsmen who were not trained lawyers but (through experience in local administration or even by having been involved as a party in litigation) had acquired some knowledge of the workings of the legal system, or from clerks who had at least some experience of a notarial type. In Norman England it was expected that parties would speak for themselves, and restrictions were placed on the use of substitutes to plead on their behalf; those substitutes might often be relatives, friends, or servants. As new laws were made by the new regime, litigation increased in volume and in technical complexity, the national courts emerged at Westminster and had to set new precedents under the new laws, and the administration of law required a more complex and more regular system of judicial administration across the country, an environment was created that fostered the development of professional lawyers.
In the thirteenth century there was no formal education for becoming a lawyer (a function later performed by the Inns of Court). Apprenticeship, or simply observation of and gradual involvement in legal processes, could lead a man into the practice of law, full-time or part-time. London, as the focus of the king's courts, was the logical place to pursue the informal education, if one could afford it. If not, experience of the local courts could lead to a career in law. The ritual involved in making an accusation or a defence could demand a certain amount of expertise, and the work of royal justices (compiled by Bracton) and of law reporters in producing texts that would be of use to students of the law reflects the awareness of the need for a profession. In the twelfth and early thirteenth century, it was impossible to find enough professional judges to staff the eyres, and they had to be supplemented by others. But in the second half of the century that we begin to see professional attorneys active not only in the central courts and the eyres, but also in local courts.
Professionalization was given impetus by the increasingly complex nature of litigation – not least the various devices for securing and protecting property rights (e.g. enfeoffments to use) – as well as by changes in court practice that allowed, in some types of case, parties to appear by attorney rather than in person. The use of lawyers to speak for one in court became the rule, rather than the exception. The possibility of avoiding the courts by submitting disputes to arbitration did not necessarily lessen the demand for professional lawyers; any settlements were best drafted by legal experts. Merchants required legal assistance as credit arrangements became more complex. And boroughs retained professional lawyers and/or expected their town clerks to be adept in legal matters, having the need to deal more and more with the king's courts.
However, we should not overemphasize the development of the legal profession. The other side of the coin was that a shortage of trained administrators of the law meant that the king had to rely overmuch on the aristocracy for local administration of the courts. Yet this was the class whose members were most prone to take the law into their own hands, or to manipulate legal institutions to gain their own ends. In the final resort, the sometimes strenuous efforts by England's medieval kings and their advisors to build an effective legal system was not enough: it could not keep pace with social and economic changes, nor could it win sufficient respect and support from the power-holding groups in society.
Two 15th/16th century lawyers
who, during their careers, served urban governments
(click on the images for enlarged versions and more
information)
For broader information on the development of English law and the judicial system in the Middle Ages, see Robert Palmer's English Legal History Materials. For printed sources of information try the items below or, for a broader selection, see the "Law and Justice" section of ORB's Late Medieval England: Suggested Reading List.
BELLAMY, John. Crime and Public Order in England in the Late Middle Ages, London: Routledge and Kegan Paul, 1972.
GROSS, Charles. "Modes of Trial in the Mediaeval Boroughs of England," Harvard Law Review, vol.15 (1902), 691-706.
MUSSON, Anthony. Medieval Law in Context: The growth of legal consciousness from Magna Carta to the Peasants' Revolt. Manchester: University Press, 2001.
MUSSON, Anthony and W.M. ORMROD. The Evolution of English Justice: Law, Politics and Society in the Fourteenth Century. New York: St. Martin's Press, 1999.
|
|
 main menu |
|
|
||