Medieval Crime and Punishment: Henry II and the Common Law

King Henry II of England is best known in the popular imagination for the murder of Archbishop Thomas Becket, a murder for which the King was blamed. Four knights broke into Canterbury Cathedral on 29 December 1170 and slew Becket in the most brutal manner.

The Murder of Thomas Becket c 1480 Public Domain- British Library

Whatever one’s view of the volatile Henry, there is one achievement from his thirty-five-year reign that stands above all others: his reform of the English legal system, which laid the foundations of the English Common Law. When he came to the throne in 1154 at the age of just twenty-one, his realm was in deep disarray following civil war. He urgently needed to re-establish royal authority and impose order and set about doing so with his customary relentless drive. The judicial system was the subject of much of his attention and he was aided in this by the talented Becket, who was his chancellor at the time.

Henry II enthroned, arguing with Thomas Becket c. 1307 - c. 1327 Public Domain- British Library

Henry addressed reform of both land law and criminal law. With land law, cases relating to an individual being dispossessed or those in which inheritance was in dispute were now settled in a trial by jury. The jury system was far quicker and more efficient than the system it replaced. Given that said system was one of trial by combat, one can see why it was not just the efficiency of the new system that made it so popular.

His reform of criminal law was even more impressive. He issued new legislation at Clarendon in 1166 and Northampton in 1176. It was at Clarendon where the procedures of criminal justice were first established, addressing how serious felonies such as murder, robbery and theft would be dealt with. Juries of presentment were established, consisting of twelve lawful men in each hundred (a subdivision of a county) and four in each vill (village). These juries were not there to decide on guilt or innocence, but to support an accusation of a serious crime.

Anyone who was accused of such crimes would be put in prison to await trial. Those trials could only be heard by the King’s justices, who travelled the country to do so. Henry first introduced his system of itinerant justices at Clarendon but refined the system at Northampton. England was divided into six circuits, with three justices, the justices of the general eyre, allocated to each.  Twelfth century chronicler Roger of Howden lists the eighteen justices itinerant and their circuits for 1176.

Detail of an historiated initial 'I'(udex) of a judge c. 1360- c. 1375 Public Domain - British Library

One of the justices listed was Ranulf de Glanville. De Glanville was one of Henry’s staunchest allies, securing key victories for the King in the rebellion of 1173-74 and rising to the position of Justiciar of England. The ‘Treatise on the Laws and Customs of the Kingdom of England’, produced in the late twelfth century, is the earliest treatise on English law and is commonly referred to as ‘Glanvill’, though it is unlikely that de Glanville was its author.

The justices provided a system of criminal investigation for the whole country. The impact of the arrival of the travelling court should not be underestimated. It could consist of several hundred people, all of whom were tasked with supporting the royal justices in administering the law in the name of the lord King. As well as being administratively impressive, it would have been a spectacle that reinforced Henry’s power over all his subjects. It would also have instilled awe and fear in all those who witnessed it, especially those who were accused of a serious crime.

The accused were brought before the justices. Proof of their guilt or innocence could be established in a number of ways, such as witness testimony, documents or the swearing of oaths. Unlike criminal trials today, the jury acted as witnesses and not an impartial panel. They would give the account of what had happened.

Five judges and three plaintiffs c. 1360- c. 1375 Public Domain - British Library

In cases that were not clear cut or in those of secret homicide where there were no witnesses, the justices used the ordeal. Ordeal could be by cold water or by hot iron. The blessing of the water and the iron served to bring the notion of God’s judgement, judicium Dei, into the proceedings.

There was great ceremony and a long build-up attached to the ordeal, which would have added to the pressure on the accused to confess. The accused would be taken to church four days before the day on which the ordeal was due to take place. They had to wear the clothes of the penitent, fast and hear several masses. If they still did not confess, the ordeal would take place.

Two judges addressing a prisoner held by a court officer c. 1360-c. 1375 Public Domain - British Library

The most innocent of hearts must have quailed. Stripped to only a loin cloth, the accused would be led to the pit, which was twenty feet wide and twelve feet deep and full of water. A priest would then bless the water. God would now be the judge: His blessed water would receive the accused if innocent, reject him if he was guilty. The accused would be bound, thumbs to toes, and lowered in from a platform.

With ordeal by hot iron, the accused had to undergo the same preparation of fasting and penitence. A length of iron would be blessed and heated in a fire until it was red hot. The accused would have to take it in one hand and carry it for three paces. The injured hand would be bandaged and then examined three days after the ordeal. If it had healed, then innocence was proclaimed. If it had not, then the accused was guilty.

Both forms of ordeal were terrifying and horrific in themselves, and the lengthy preparations would have only added to the pressure to make a confession. Once the accused made a confession, it could not be retracted. In 1215, the Church forbade priests to take part in the ordeal, bringing an end to its use.

A man hanging from gallows c. 1360-c. 1375 Public Domain - British Library

For those found guilty, the King’s punishment awaited. Hanging was reserved for the worst crimes. Thieves and robbers could lose a foot and, from 1176, their right hand. The law also had a final judgement it could impose, even if the accused was acquitted by undergoing the ordeal. If it was judged that the accused had a particularly bad reputation, as sworn to by the jury, then the accused was to leave the King’s lands as an outlaw and had to swear under oath that they would never return.

And lest anyone think that they could take the law into their own hands and administer punishments themselves, the King’s justices had a clear system of heavy fines for those who would dare to do so. Order would prevail. Henry, the consummate administrator, had thought of everything.


References:
All images are in the Public Domain and are part of the British Library's Catalogue of Illuminated Manuscripts. 
Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford, 1986)
Bartlett, Robert, The New Oxford History of England: England under the Norman and Angevin Kings 1075–1225 (Oxford, 2003)
Hudson, John, The Formation of the English Common Law (London, 1996)
Pollock, Frederick, and Maitland, Frederic William, The History of English Law Before the Time of Edward I (Cambridge, 1898)
Warren, W. L., Henry II (Yale, 2000)

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I wrote this post for the English Historical Fiction Authors blog where it was published on October 3, 2018.

A Dead Man's Tongue (and other Medieval Relics)

            

Reliquary Casket with Scenes from the Martyrdom of Saint Thomas Becket
c1173-80 The Met Museum Public Domain

I write medieval. 1170 medieval, which is when my thriller The Fifth Knight, based on the murder of Thomas Becket, is set. A lot of people said that it wasn’t a good time period. Too far back. Too remote. Readers wouldn’t engage. Hmm. I’ve never been sure about that. Because people were still people, even in 1170. While there have of course been huge changes to us and our world in the last 800 years, many things remain the same. As people, we have our loves, our hates, our struggles to deal with whatever the world throws at us.

And boy, can the world throw stuff. War, disease, famine and death is still a pretty good summary of what people have to face across the world of 2012. You can also add in tsunamis, earthquakes and hurricanes. Same as it was in 1170. And for all of these terrifying things that happen, we don’t fear them or react to them in a detached way. We fear them because we fear for our loved ones, for ourselves. The desire to protect, to keep safe is as old as humanity. (Those of you who have stopped by to find out about the Dead Man’s Tongue are probably by now getting restless. Don’t worry, you’ve not been mis-sold.)

One of ways medieval people tried to keep themselves safe, to ward evil and harm from them was to appeal to the saints. The medieval church had a very strong culture of sainthood. The saints had been born ordinary people, but had lived their lives and died with such devotion to and sacrifice for God that the church had canonised them.

The Martyrdom of Saints Agatha, Agnes, Cecilia, Lucy & Catherine
c1300 The Getty Public Domain

 

A pillar of the culture of sainthood was the concept of relics. In modern day Catholicism, you have classes of relics. First class relics are the bodies of saints or parts of their bodies, including bones, soft tissue and hair, and yes, a tongue. Such relics are housed in churches built and dedicated to that saint and are the subject of great devotion.  Second class relics are taken from the clothing of the saint. Third class relics include anything touched by the saint, or by touching an object to a first or second class relic. The belief is that people who pray to  these relics can be granted favours by God.

And did medieval people ever need those favours. In 1170, people lived a harsh live, with a life expectancy of late forties for the wealthy (and considerably lower for the poor). Things we (at least we in the privileged western world) take for granted were enormously risky for our 1170 dweller, who had access only to herbal medicine.  Childbirth, a chest infection, a broken limb, a bad dose of food poisoning: the vast majority of us, thank goodness, can come through all these in one piece. Modern medicine sees to that. But without modern medicine, so much becomes life threatening.

Reliquary Chasse British 1207–13 The Met Museum Public Domain

The choice of saints suggests that the chasse was made for Christ Church, Canterbury, a foundation rich in relics 

If illness weren’t enough, there were risks of crop failure and starvation. Famines and food shortages were a regular feature of medieval life. Throw in wars and conflict, where just one injury could be enough to end a life and we begin to see why people sought protection where they could. For many, their devotion to the saints was all they had. So to have relics, to have a link to a saint in your possession, was hugely valued.

The containers used to keep relics in are called reliquaries. Those containing first class relics are fabulously made of gold, silver and precious stones and can be found today in churches across the world. But in my research for The Fifth Knight, I came across the far less grand thread-boxes. Archaeologists have found at least three dozen of these in women’s graves going back as far as the seventh century. Tiny boxes, with scraps of material and herbs, a defence against harm. Heartbreakingly, one of the finds was in a baby’s grave.

Saint Anthony of Padua c1469
The Getty Public Domain

You could argue that such practice is consigned to the history books and has no relevance today. But pay a visit to a church such as the magnificent Saint Anthony’s Basilica in Padua, Italy and you will see devotion to a saint’s relics as real as it would have been in 1170. Saint Anthony’s tongue is indeed on display in a magnificent gold reliquary. It may be shrivelled and black, but it is still recognisably a tongue.

Many would think it strange that thousands of people go to see it every year. Under normal circumstances, most of us would turn down the opportunity to see a human body part. But it’s when you look around the church, you see it’s not about that. There is photo after photo of loved ones. People have placed them there, asking for the saint’s help. In the remarkable Museum of Popular Devotion next door, there are hundreds of exhibits people have submitted to show their prayers being answered. Many of these are in picture form and have no words to explain them. They don’t need to. They show people ill, in car accidents, in peril at sea. Child after child falling from a balcony, a window. One even shows a burning TV! But in all, Saint Anthony is represented as having intervened, as saving the loved one.

The Healing of the Blind by Touching Saint Anthony's Body
c1465 The Getty Public Domain

I think the women who kept their thread-boxes would understand  those pictures immediately, no matter how many centuries separated them. A hope, a plea, that loved ones will be kept safe from harm, that they can be kept safe from peril. I don’t think that ever changes. So yes, I write medieval. But it doesn’t feel remote to me.