Crime and Punishment Under Henry II

By E.M. Powell

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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E.M. Powell’s historical thriller Fifth Knight novels have been #1 Amazon and Bild bestsellers. Her new Stanton & Barling medieval murder mystery series starts with THE KING’S JUSTICE, followed by THE MONASTERY MURDERS.

As well as blogging for EHFA, she is a contributing editor to International Thriller Writers The Big Thrill magazine and is the social media manager for the Historical Novel Society.

Born and raised in the Republic of Ireland into the family of Michael Collins (the legendary revolutionary and founder of the Irish Free State), she now lives in northwest England with her husband, daughter and a Facebook-friendly dog. Find out more by visiting www.empowell.com.

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Crime and Punishment the Medieval Way

by Jeri Westerson

Fourteenth century London wasn’t any more dangerous than life on the streets today. Oh, the weapons might be different, but the people who were “dead of a death other than their rightful death” were much the same as in the twenty-first century. You likely knew your killer, and that’s because you lived in such close proximity, worshipping in the same parish church (of which there were many), fetched water from the same cisterns, shopped at the same shops, and generally knew one another intimately. There were over thirty churches in London and the city was divided into these parishes or neighborhoods. It took a village, and these parishes did serve as little villages in the vastness of London. The city was a pretty big place, by medieval standards. The second largest city in the medieval world, with Paris being first. These parishes were strung together into larger districts called wards, twenty-five of them. This division made it easier for the justice system to take care of business when there was a death.

So just what did happen when a body was found?

This unlucky person is called the “First Finder.” It’s up to him to call the “hue and cry”, literally crying out to the parish. He gets neighbors to help him investigate. Now, if you are the First Finder and you don’t do these things, you can be fined pretty stiffly. So as you can imagine, many a First Finder simply backed carefully out of the room and left it all for the next poor schlub.

But let us suppose that the nosy neighbors turned up a likely suspect—and in many cases this happens because Man “A” was heard arguing with Man “B” the night before, and if Man “B” suddenly turns up dead, then you’d naturally go to Man “A”…and you’d most likely be right. Same as today.

Anyway, you’ve got a suspect. He is arrested and indicted by judges. Depending on his status in society he might very well languish in prison until it comes to trial and that could be a year or more. In the meantime a jury is chosen from the people in the parish who knew the suspect and from the ward in which the crime was committed—which might be the same area--and they investigate it, talking to witnesses.

Finally it comes to trial, but it’s mostly decided before the trial begins.

In a medieval courtroom there is the bar that the prisoner stands against facing the judge or judges on a bench. You’ve heard these terms before. A lawyer arguing before the bar. The judge serving on the bench. These terms that we still use today are very old and came from these literal sources. The bar—originally from the architectural structure of inns in which the law was taught—came to mean the law itself, a tribunal, the physical place in the court. It was the actual barrier or wooden rail marking off the judge's seat—a bench—the place at which prisoners stand for arraignment, trial, or sentence.

The lawyer, if you can afford one, comes with you to your trial. However, it isn’t the lawyer who speaks for the prisoner. He isn’t allowed to. The prisoner must speak and defend himself. Silence is construed as guilt.

And by the way, neither the prisoner nor the witnesses are sworn in as we do today, because it is assumed that they might lie and the state didn’t want to be responsible for their blaspheming.

As for a jury, King Henry II in the twelfth century brought us this unique judicial system. This isn’t the kind of jury we know. This jury knows you. Today the lawyers try to make certain that no one on the jury knows you and can influence the trial, but in medieval times it was important that they did know you and could influence the trial. And it made sense. Remember the parishes that people lived in, in close proximity? That guaranteed that nothing could be devious and in secret. If everyone knows each other’s business then it’s easy to point a finger and say, “He did it!”

Choosing a jury was important because it is essentially this jury—made up of at least nine to twelve and sometimes more men—would do the lion share of investigating. They would talk to witnesses, they would examine evidence. It was pretty much a done deal when you got to trial—in a year or two—what the verdict would be.

Now the prisoner and the lawyer may question witnesses brought forth and, of course, the lawyer can advise his client and file writs, but that’s all he can do.

In terms of a murder trial, there were two kinds of murder in the beginning: Murdrum—the slaying in secret, what we might call murder in the first degree today. This is murder that is planned, carried out, and hidden.

Then there was Simplex Homicedrum—unplanned, or murder in self-defense, or accidental. Later was added Manslaughter, the slaying in “hot blood” as in a duel or if you caught your wife in bed with another man. Usually that counted when you slew the man, but sometimes it counted, too, when you murdered your wife.

The degree of murder then, as it does now, depends on intention. Here’s a quote from Henry de Bracton a thirteenth century jurist who wrote about the law and how to interpret it. Here he’s talking about “homicide through misadventure”:

“…as with where one intending to cast a spear at a wild beast or does something of the sort, as where playing with a companion he has struck him in thoughtless jest, or when he stood far off when he drew his bow or threw a stone--he has struck a man he did not see, or where playing with a ball it has struck the hand of a barber he did not see so that he has cut another’s throat, and thus has killed a man, not however with the INTENTION of killing him; he ought to be absolved, because a crime is not committed unless the INTENTION to injure exists…” (my emphasis.)

Was the justice system fair? Well, in 200 cases of homicide between 1281 and 1290 brought up from Newgate prison in London, only 21% were found guilty. This is either the result of some good detective work…or the meting out of excellent bribes. You decide.

For further reading (and I warn you, most of it is pretty dry), try The Criminal Trial in Later Medieval England by J. G. Bellamy, Public Order and Law Enforcement: The Local Administration of Criminal Justice, 1294-1350 by Anthony Musson, Crime and Conflict in English Communities, 1300-1348 by Barbara A. Hanawalt, Crime and Public Order in England in the Later Middle Ages by John Bellamy, and Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 by Thomas Andrew Green.

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Jeri Westerson writes the Crispin Guest Medieval Noir Mysteries. The series has been nominated for twelve national awards from the Agatha to the Shamus. Her ninth book, A MAIDEN WEEPING —dealing with a medieval murder trial — was released August 1, 2016. See Jeri’s website for book discussion guides, her character’s blog, excerpts, maps, and many other fascinating things.