England’s medieval system of justice has a bad reputation, and it came by it honestly. Come, let’s be horrified together.
Medieval courts came in two flavors: Local courts were presided over by the lord or his steward, and we’ll skip those for now. The King’s Court was initially presided over by the king personally but the work was eventually hived off to people whose clothing wasn’t quite as fancy. Even so, this was for the serious cases.
We’re not going to do a full roundup of medieval justice. It shifted over time. It’s complicated and I don’t have enough space in a single post. I’m tired. Let’s focus on a few high–or low–points involving serious crimes.
Trial by ordeal
I had a sneaking suspicion that trial by ordeal might turn out to be an urban myth or a tale told to kids to demonstrate that the past was brutal and ignorant but the present was enlightened and moving toward perfection. But no, trial by ordeal was a real way to resolve important cases. So yes, the past was brutal, but you could make a good case that the present is too, and that perfection thing is still eluding us.
Here’s how trial by ordeal worked: Let’s say you’re in medieval England and you’re accused of a felony-level crime–murder, maybe, or theft, arson, or witchcraft. A priest holds a religious service and invokes god, who has nothing better to do than prove your innocence or guilt.
In ordeal A, you’re tied up and tossed in the water to see if you sink (look, you’re innocent: the water accepts you) or float (oh, bad choice, you’re guilty: the water doesn’t want you).
Opinion is divided on whether you’ll be fished out if you sink. One website says people are tied in a way that traps air and makes it impossible to sink. But basically, the information that’s come down to us is thin.
In ordeal B, the priest heats a piece of metal, you take hold of it and carry it some set number of paces before you’re allowed to let it go. Then your hand’s bandaged. If three days later the hand’s getting infected, god doesn’t like you: You’re guilty. If it’s healing, god’s happy with you: You’re innocent.
At the Fourth Lateran Council in 1215, though, the Catholic Church pulled its priests out of the trial by ordeal business, which pretty much put an end to it. (It also banned them from acting as barbers and surgeons, thereby eliminating the holy haircut, Batman.)
One reason for the shift was that big-name theologians had stopped trusting the process. Peter the Chanter (no, I never heard of him either, but then I theologians aren’t one of my interests in life) told the tale of an Englishman who’d gone on pilgrimage with a companion but returned alone. He was accused of murder, failed his ordeal, and was executed.
Then his companion came wandering back to town.
It was embarrassing.
Other theologians opposed it because, basically, it was wrong to bother god with this stuff.
So England shifted to a jury system and god, if he existed, got time to sit back with a cup of coffee and a jelly donut. Neither of which was available within the reach of the Catholic Church at the time, but surely that’s one of the perks of being god–or a god. If there turn out to be such things.
Another website tells us that even before the Lateran Council William II had banned trial by ordeal, supposedly because fifty men had been accused of killing his deer but passed the test.
We weren’t there, the information’s thin, and we don’t know. At this point, I wouldn’t put a lot of money on our odds of untangling the true story. Either way, trial by ordeal dropped out of use.
The jury system
England’s jury system overlapped with trial by ordeal: Initially, it was the job of twelve men to decide whether the accused should undergo the trial, so when trial by ordeal ended it was simple enough to look at them and say, “Hey, you’ll play god here, okay?”
Records from earliest trials present them as pretty bare bones. The defendant had no lawyer. In fact, the word lawyer didn’t come into the language until the 14th century, so let’s say the defendant had no counsel.
The members of the jury might know the defendant. They might also know the victim. They came fully stocked with all the loves, hates, loyalties, and prejudices that a relatively small community can harbor.
No one seem to have had a problem with that.
Defendants faced one punishment, death, usually by hanging, so people were playing for keeps here. On the other hand, most people who were tried were found innocent. And of the people who were found guilty, many were pardoned.
For all that we’re talking about the royal courts here, justice seems to have been a highly localized affair, because several sources say that an accused person could flee: Leave town and you could consider yourself (fairly) safe. Or they could take sanctuary in a church, which gave them the possibility of confessing then leaving the country for good.
Finally, anyone who could read could claim benefit of clergy and if the church claimed them as one of its own that moved their case to the church courts, where if nothing else the death penalty wasn’t a possiblity.
But no defendant could face a jury trial unless they agreed to it. For a few decades, it someone refused, a jury might meet anyway, and if the defendant was found guilty a second jury would meet to confirm the verdict of the first jury.
Then the royal courts introduced the enlightened system of peine forte et dure. Let’s say you won’t agree to a jury trial. Fine, that’s your right, only they slam you in prison on a diet of bread and water. Then they put weights on you until you either agree to a jury trial or die. Which makes the bread and water diet somewhat irrelevant.
Why would you let yourself die that way when a faster (and less certain) death was available? Because if you were convicted your property would be forfeit and your heirs would be skunked. But if you died without a trial or a conviction, your family inherited your property.
Trial by combat
The theory behind trial by combat is that the winner wasn’t just stronger or a better fighter but that god had put his heavenly thumb on one side of the scales, tipping them toward the good and upright and against the slimy, evil, and, um, any other adjective you’d like to pile onto the losing side. Adjectives, in spite of the noise they make, don’t carry much weight, so pile them on if you like, because they won’t tip the balance.
From 1066 (the date of the Norman invasion) to 1179, this was the primary way of settling land disputes, although it wasn’t limited to land disputes. The process not only settled messy cases, it provided the neighborhood with entertainment. There’s nothing like seeing two people fight until one of them yields or dies.
The courts did expect some minimal documentation of a claim before a case proceeded to combat, but once they’d filtered out a few screamingly bogus ones, the battle was on.
If you want a rational underpinning for this–and who doesn’t?–look at it this way: Documentation in land claims was in short supply. Witnesses could be gathered up for either side. It looks bad when judges flounce off saying, “This is pointless. Settle it yourselves, will you?” But if you have a system of trial by combat, you may be thinking that but you ask god to settle it, which sounds a lot better.
A person could either fight their own battle or choose a champion, and you could argue (as one paper does) that the system was economically efficient. Better fighters cost more money, so the battle went to the side that valued the land more.
And, although the writer does say this, the one that had deeper pockets.
The champion who lost paid a £3 fine (that was a shitload of money back then) for perjury and was declared infamous. He couldn’t bear witness in any future cases. As far as I can tell, that was the fighter, not the person on either side of the case, but take that with several grains of salt. And I £3 fine if I’m wrong.
Trial by battle had its absurdities, some of them unpredictable ones. If a combatant died before the combat, his corpse had to be carried to the fight, and one corpse managed to win because his body was too heavy for his opponent to carry to the fight, so the corpse was declared the winner.
Trial by battle fizzled out gradually.. Isolated cases surfaced in the reigns of Elizabeth I and Charles I, although the actual battles never took place. It’s not clear when the last battle to the death happened, but the last fully documented was in 1597 (Liz took the throne in 1558–I just checked, and if you see the comment below about me getting the date wrong, I originally changed it to 1598; don’t listen to me, ever). One of the combatants was accused of murder and was killed in the fight. So we can safely assume he was guilty. Because like trial by ordeal, trial by combat gave the appearance of certainty. And we all like certainty.
Parliament tried and failed to abolish trial by combat in 1641, 1770, and 1774. During one of those attempts, someone–no doubt with a straight face–defended it as a “great pillar of the constitution.” In 1817, when the brother of a murder victim appealed the accused’s acquittal, the accused offered to settle it by combat. No one had suggested that for a couple of hundred years, but the law was still on the books and the judges had to allow it.
The accused was a big sumbitch and the brother was young, scrawny, and sensible enough to say no. The accused walked free.
In 1819, Parliament finally abolished trial by combat.
Which didn’t stop a man from challenging the Driver and Vehicle Licensing Agency to pick a champion who’d fight him to the death over a £25 fine. He offered a choice of samurai swords, heavy hammers, or gurkha knives. I’d love to have been around when someone opened that email.
The court ordered him to pay £200 plus £100 in costs.
This started out as a post about contemporary magistrates’ courts, which are at interesting corner of the English legal system, but I got lost in the history. I expect to come back to a few more odd corners of the system and its history in the coming weeks.
Finally, a note about the bizarre pop-up that I added to the blog a little while back. It invites/asks/wheedles you to sign up to my email list, and a friend tells me that if you sign up it promises that I’ll send recipes. (It takes a good friend to tell you that.)
It lies. I will not send you recipes. I will not send you anything except an announcement–or maybe two if I can’t stop myself–when my forthcoming novel forthcomes.
Why am I doing this? The theory is that email lists sell books. I haven’t a clue if they do, but I’m being a good girl and following the advice. It’s an interesting experience but I doubt I’ll do it often.
So do sign up. It’s safe. It’s free. I won’t bury your inbox in trivia. Or recipes. I have a novel coming out in March or April and I’d love to let you know about it–although I’ll post something on the blog as well.
As soon as I figure out how, I’m going to fix that damn pop-up. In the meantime, have a laugh at my expense.