Prosecution c. 1200

We tend to assume that early criminal law was primitive, crude, and harsh. In some ways, by our standards, it was; in others it was surprisingly close to our standards. To illustrate this let’s look at a typical felony prosecution in the year 1200. This was a time when criminal law was still in the process of becoming something separate from civil law. While some of it seems medieval in every sense, many things about it are recognizable ancestors of what we do today.

The manner of a criminal prosecution varied, and could depend on the degree of apparent guilt. A trial to determine guilt was used only when necessary. Felons caught red-handed could be punished – including being hanged – with little ado. A person caught in circumstances strongly suggesting guilt (possessing stolen goods without a good explanation for having them, for example) could also be sentenced rather summarily. To help catch criminals quickly, victims had a duty to “raise the hue and cry,” literally if necessary, to let people know what had happened. Every able-bodied man then had a duty to do everything in his ability (pro toto posse suo) to try to catch the criminal.

Once apprehended or identified, a person could be formally accused of the crime by a “presenting jury,” a group of leading men in the community whose duty it was to report crimes; this was called “presentment.” In 1200 prosecution was also still brought the old-fashioned way: by the victim himself, in a process then called “appeal.”

There were a number of prerequisites to appeal. The hue and cry was one of them. In a case of wounding, the victim’s wounds had to be inspected by the coroner, a fairly new officer. The accuser would also have to get sureties to guarantee that he would pursue the appeal since there was a fine for not doing so (though if he were poor his oath to pursue it would suffice). He had to present the appeal at the next session of the county court, which usually meant within one month.

If the accused were available, he would be “attached,” i.e., either arrested or required to obtain sureties to guarantee his appearance in court. If he had fled, his name was recorded; the names of the other members of his frankpledge were also recorded so that they could be amerced if he was not found. (You know what that means if you’ve been reading these articles; if you just look at the pictures, though, it basically means that if the accused’s friends and neighbors didn’t turn him in they could be fined.)

The accuser then made the appeal to the county court. But that court merely recorded the allegations; it could not try the case. Since the twelfth century the kings had enforced a rule, confirmed later (1215) by statute, that only their courts could try cases concerning a breach of the peace. The appeal had to wait for trial until the next time a royal judge arrived in the vicinity to try cases. In 1200 that happened about once every four years. (In Magna Carta, fifteen years later, King John promised to send royal judges to each county twice a year. That proved logistically impossible; when Magna Carta was reissued in 1217 it said once a year but even that was beyond the administrative ability of the time.)

Most appeals never went to trial. The court records of these cases generally state either that the accuser did not prosecute or that he withdrew the prosecution; there was apparently a technical difference between the two but we no longer know clearly what it was. In either event, what had normally happened was that the parties had settled the case. As one of my other articles explained (which, again, you don’t know about if you only read this to find out who the speaker at the next Bar luncheon is or who was fired by what law firm last month), criminal law at this point was largely about compensation for the victim. The fine for not prosecuting the appeal was small and the accused presumably paid it as part of the compensation. (The fine for non-prosecution helped offset the crown’s loss, since a person found guilty would have to pay a fine to the king as well as compensation to the victim.) Occasionally the parties would appear before the court for judicial authorization of the settlement. This was not necessary, and may have been more expensive, but it protected the accused in case the victim later changed his mind.

An accuser’s failure to prosecute normally ended the case. But there are records of cases in which the judge ordered the accused to be tried nevertheless -- when the accused was a notorious repeat offender, for example, or when there was a suspicion that the accused had intimidated the accused into dropping or “settling” the appeal. And there seems sometimes, though not always, to have been a policy against allowing settlements in murder cases.

At trial in cases brought by presentment, the facts available to the presenting jury would be examined along with additional facts obtained from other witnesses. At that point the court, based on the jury’s judgment, would determine whether the evidenced was sufficient to subject the accused to the ordeal. If not, he was acquitted; if so, he was put to the ordeal as described below.

In an appeal, assuming the parties both appeared, the accuser would first state his claim, in formal language similar to a pleading. The accused would then formally deny it and could also raise technical issues (such as failure to raise the hue and cry, failure to appeal at the next session of the county court, or failure to have the coroner inspect the wounds). (An accused who had fled could be outlawed, as described in another of my articles, which you’ve read unless you just use this as waiting-room reading material because you’re too cheap to buy magazines.) If the accused could not win by technicality then the case went to trial by battle, by ordeal, or increasingly, by jury.

Trial by battle was not an Anglo-Saxon institution. It was introduced into England by the Normans after 1066 and was apparently not used very often. Some defendants could insist on it unless their accuser was infirm, a woman, too young, or too old (60 was the cut-off age; keep this in mind when you hear or read that people in those days were “old at 40”). The parties themselves fought each other, on foot, apparently using sticks of some sort. (Hired, professional “champions” were used only in civil cases.)

The battle began at dawn. First, the defendant formally denied the crime and the accuser stated his readiness to prove the case by battle. (Later the ceremony included having the accused thrown down a glove, which the accused would pick up.) The defendant then swore an oath that he didn’t commit the crime and the accuser swore an oath to the contrary. Both parties then took an oath not to use sorcery. They fought until one died, could not or would not continue the fight, or until nightfall; if the accused could maintain the fight “until the stars appear,” he won.

Trial by ordeal was used in cases brought by presentment and in appeals that could not be tried by battle. There were two kinds of ordeal: by hot iron and by cold water. The ordeal by hot iron was used for freemen and women, the ordeal by cold water for male serfs (that is, women were not put to the ordeal by cold water).

In the ordeal by hot iron, the accused was made to take three steps holding a hot iron bar that had been consecrated; the wound was then bound and examined three days later. If it was infected, the accused was guilty; if it was healing, he was innocent.

For the ordeal by cold water the accused was stripped, bound, tied to a rope, and then lowered into water. If he sank a certain distance (a “hair’s length”) he was innocent; if not, he was guilty. The body of water used was normally not simply the local lake or stream; it was a specially-made pit of a certain size (religious institutions had ordeal pits in their basements).

The judge was not present at the ordeal; a priest was, for it was in many ways a religious ceremony. The point of the ordeal was to allow God to reveal the truth. A mass preceded it and the priest had important parts to play. At the ordeal by water, for example, the priest blessed the water and specifically asked God to accept the accused were he innocent and reject him (i.e., let him float) were he guilty. Priests were paid for their services; ordeal pits and consecrated iron bars were revenue-producing items.

The results of the ordeal were reported to the judge, who ruled accordingly. Trial by ordeal was the trial, not the punishment; the judge imposed sentence on those found guilty.

It not true that the ordeal nearly always “proved” guilt; the accused was often found innocent. If the iron were hot enough, the resulting burns could still look reasonably clean after three days; a man who isn’t too fat can sink in cold water if he doesn’t hold his breath (sometimes the man was bound with his legs against his chest, which made him more likely to sink). (Women, who have a higher percentage of body fat, could rarely have passed the ordeal by cold water, which may be one reason why it wasn’t used for them.)

There is some indication that trial by ordeal could be used to avoid guilt. Whether the accused sank far enough and long enough or whether his wounds were healing or not was open to some subjective judgment. So, if he were accused of violating a regulation that the community felt onerous the results of the ordeal could be interpreted to show innocence. In the eleventh century King William Rufus had rounded up 50 people accused of hunting in his forest – which was highly illegal but often necessary for many, who had to hunt for food. Fifty ordeals “proved” that they were all innocent, whereupon a frustrated William declared that God was too merciful.

In serious cases the accused had the opportunity for what we would today call post-conviction relief. The writ de odio et atia was the forerunner of habeas corpus. In this writ the convicted felon alleged that the prosecution against him had been based on hatred and ill-will. This was essentially a way for the convicted defendant to appeal (in the sense explained above) against his accusers. On the other hand, there could be a form of post-acquittal punishment: people prosecuted by presentment -- usually repeat offenders -- could be exiled even if the ordeal "found" them innocent. This way of getting rid of troublemakers again shows that medieval faith in the accuracy of the ordeal was less than perfect.

What, you ask, about trial by jury? It did exist in 1200. Though used primarily in civil cases, it was beginning to be used in criminal trials and also in ancillary criminal proceedings. In 1215 a decree of the Fourth Lateran Council forbade priests from participating in ordeals. (This was not because the Church was necessarily against violence but because theologians had decided that God did not perform on command.) Because priests were essential to the process, this meant the end of the ordeal as a formal part of the justice system. The judges were instructed to use their discretion in determining how to decide cases. What they used was trial by jury. (By contrast, continental Europe turned to the Roman system: torture.)

An accused could refuse a jury, in which case he would be held in prison until he agreed to one. A statute of 1275 required an accused to suffer peine forte et dure until he agreed; in practice this normally meant placing heavier and heavier stones on the chest of the accused until he either agreed or died (so, England did not avoid torture altogether). (One of the victims in the Salem witch trials opted to die this way rather than have the jury find him "guilty"; because he died innocent, his property passed to his family.) This practice was ended in 1722, though until 1827 refusal of a jury was treated as a guilty plea.

Trial by battle (which did not require the presence of a priest) fell into disuse but existed until 1819, when Parliament abolished it after the Thornton case. Thornton was an alleged rapist whom a jury acquitted. The victim’s brother then tried to prosecute him again by bringing an appeal, which also still existed. Thornton’s lawyer apparently read some history, too, and had his client insist on trial by battle. The brother – a small, slender man – refused, whereupon the court dismissed his appeal.