1215: The Year of Magna Carta Ebook (22 page)

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.

‘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.

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.

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.

For the honour of God and the exaltation of Holy Church
.

Magna Carta, 2
^nd
paragraph

T
he England of 1215 was a very Christian country, as were Ireland, Scotland and Wales. Apart from a few thousand Jews, living in towns as far north as Newcastle and as far west as Exeter, everyone else was treated as a Christian. Heresy was regarded as a serious problem by the Church authorities on the continent but was virtually unknown in England. In 1166 a group of twenty religious enthusiasts who arrived from the continent were identified as heretics – they denied the sacraments of baptism, Mass and marriage – branded and left to die. A few more heretics arrived in 1210, and were arrested and burned. By such drastic methods the strong-arm royal government co-operated with the Church at keeping this island, as they saw it, uncontaminated by heresy.

A Christian people, the English were baptised as babies, and went to church throughout their lives on Sundays and great feast days, such as Easter and Christmas. They paid tithes to the Church, and nearly all were buried in churchyards. There were no official charges, but the custom of making offerings to the priest for baptism, marriage and burial was hard to avoid. Learned clerks, with characteristic sophistry, explained that it was acceptable for priests to receive voluntary gifts
at
such ceremonies, though not – be it understood –
in return
for them.

Every parish church had its own landed endowment, usually a decent-sized farm. The rector of the parish also received tithes, one-tenth of all agricultural produce. This was deeply unpopular, and tithe avoidance was thoroughly respectable behaviour. So was tithe evasion. Pope Innocent III ruled that it was not permissible to deduct expenses incurred in running a mill or fishery before paying tithes on income. The Church fought hard to keep its tithes. When the rector of Sempringham found out that one farmer had evaded the tithe-collectors, he removed a tenth of the grain stored in the farmer’s barn, and then burned it in the village street. He was not a greedy man, was the message of the flames, but the law of the Church must be upheld. The richer churches collected tithes on such a scale that special barns had to be built. Substantial churches, generating large revenues, were much sought-after, so inevitably many rectors were influential men who had no intention of devoting themselves to pastoral work in the parishes. Non-resident rectors appointed vicars to do the work for them, and some vicars subcontracted it to sub-vicars. This was a system wide open to abuse, and bishops were meant to see that there was a priest (either the rector or his vicar) in every parish. In 1222 the minimum salary for vicars was fixed at £3 a year – about threepence a day at a time when you could buy an ox for about eighty pence.