1215: The Year of Magna Carta Ebook (21 page)

Who was to say what was ‘reasonable’? Who was to say on which occasions, other than the three special cases specified in Clause 12, the king was entitled to raise a tax? Who was to say whether or not any particular war was either justified or sensible? Who was to say whether or not a situation of exceptional need had arisen? These questions must have been asked many times before, but it was only in John’s reign that they came to be asked with such frequency and insistence that the upshot was the creation of a mechanism for establishing an assembly that would give answers, disguised in the form of advice. This was a significant step. Such assemblies were not yet called ‘parliaments’ and the make-up envisaged for them in 1215 was clearly different from that of later thirteenth-century assemblies, which were called ‘parliaments’, when men were summoned to represent individual constituencies – counties and boroughs. None the less in Magna Carta, Clauses 12 and 14, we can see a kind of parliament in embryo.

This radical development took place because John had managed to combine consistent military failure with frequent and heavy taxation, particularly in the form of scutage. During his reign royal revenue soared. In the five years from 1199 to 1203 when money was desperately needed for war against Philip of France, revenues audited at the English Exchequer averaged just over £27,000 a year. In 1210 and 1212 the same sources produced roughly twice as much as that and in 1211 three times as much. Moreover, in these same years, large sums were paid directly into the king’s chamber – his household financial office – and were not subject to the regular Exchequer audit. A recent calculation estimates John’s total revenue from England in 1211 at a staggering £145,000 – six times as much as the Crown’s average annual income at the beginning of the reign. Hardly surprising that he was described as ‘the plunderer of his subjects’. Something had to be done about this kind of government. In the event that ‘something’ turned out to be rebellion and Magna Carta.

To no one will we sell, to no one will we deny or delay right or justice
.

Magna Carta, Clause 40

A
s 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.