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)

~~~~~~~~~~

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.

Amazon

Barnes & Noble

Waterstones

The Last Dance at Tyburn

By Catherine Curzon

In the world of Georgian highway robbery there are some names that have stood the test of time. "Blueskin" Blake, Plunkett and MacLaine and, of course, Dick Turpin himself are characters who have passed into English legend. They have appeared in literature, film and theatre, inspired fashion and music and, particularly in Turpin's case, become virtual folk heroes since their most notorious days. Less well known is the name of John Austin but, though he was not the most famous highwayman history has known, he does hold the dubious honour of being the last man to swing from the Tyburn tree. What were the circumstances though brought him to his sorry fate, and how did the matter of a hat lead a man to the infamous gallows?

On 23rd October 1783 a man named John Spicer was making his unassuming way to London, dreaming of a new start and hopefully, new opportunities. He had come from Grays in Essex and was something of an innocent abroad, with little experience in the city. So, when he encountered two very friendly chaps who promised to show him the way to decent lodgings where a man might fill his belly, Spicer was happy to go along with these new, heaven-sent friends. For a couple of days all was rosy on the road to London, yet on the third night things took a sinister turn. Spicer's companions invited him to follow them to their new lodging, promising a pleasant evening in good company. No doubt looking forward to a warm bed and good food, the hapless traveller instead found himself in the middle of open fields near Bethnal Green.

Out in the middle of nowhere and with no chance of rescue, Spicer must have thought his time had come when one of the men drew a cutlass and demanded that he hand over his valuables. Despite being outnumbered and unarmed, Spicer fought furiously, but Austin and his accomplice were able to wrestle him to the ground, binding his hands tightly and taking all of his possessions, or so they thought. The Proceedings of the Old Bailey record that he was relieved of:

"...one silver watch, value 30 s. a steel chain, value 1 s. a steel key, value 2 d. two silk handkerchiefs, value 4 s. two pair of worsted stockings, value 4 s. one linen shirt, value 12 d. one man's hat, value 12 d. the property of the said John Spicer."

If not for the intervention of a local man named James Strong, it might be that the attack could have been even worse. Strong was working in the garden of his employer, Giles Wells, when he heard the altercation and interrupted the assault, even giving chase to the felons when they fled the scene. Unable to catch either of the men, Strong instead helped the badly beaten Spicer to the local infirmary where his injuries were tended; luckily, he was not fatally wounded and was able to tell his rescuer exactly what had happened.

Upon hearing of the attack, Wells asked Strong to return to the scene of the crime by daylight and see if the men had dropped any of Spicer's stolen belongings. Instead, what he found was the clearly very dedicated John Austin searching the field where the robbery had taken place for Spicer's hat, which was left behind after the attack. Challenged by Strong, Austin told him that he was an innocent man, forced to participate in the robbery by his unnamed accomplice under threat of death should he not go along with the scheme. Strong found the explanation unlikely to say the least and locked Austin in a stable whilst the authorities were summoned. When Austin was taken from his makeshift cell, Wells found the stolen shirt and stockings concealed in the stable, reaching the inescapable conclusion that Austin must have concealed them there in an effort to rid himself of any damning evidence.

The case was presided over by a Mr Eyre, who showed no hesitation in passing the death sentence on Austin, and on 7th November 1783 he was taken by cart to the Tyburn gallows through a mob of enthusiastic spectators. His dignified composure failed him at the last, and as the noose was placed around his neck he implored the crowd:

"Good people, I request your prayers for the salvation of my departing soul. Let my example teach you to shun the bad ways I have followed. Keep good company, and mind the word of God. Lord have mercy on me. Jesus look down with pity on me. Christ have mercy on my poor soul!"

With his final words uttered, Austin's head was covered by the cap. He seemed to speak again, but his words were silenced as the cart started forward. In a final cruel twist Austin's neck didn't break immediately; instead, he was slowly strangled to death over ten excruciating minutes.

John Austin was the last person to die on the near legendary Tyburn gallows. Though the Tyburn Tree has long since been dismantled, and a busy road covers the place where so many died, it remains an iconic image of Georgian England, and one with many stories to tell.

Sources

http://www.oldbaileyonline.org/browse.jsp?id=t17831029-4-defend133&div=t17831029-4#highlight

Gatrell, Vic, The Hanging Tree: Execution and the English People 1770-1868 (OUP, Oxford, 1996)
Brooke, Alan and Brandon, David, Tyburn: London's Fatal Tree (The History Press, 2013)
~~~~~~~~~~~~~

Glorious Georgian ginbag, gossip and gadabout Catherine Curzon, aka Madame Gilflurt, is the author of A Covent Garden Gilflurt’s Guide to Life. When not setting quill to paper, she can usually be found gadding about the tea shops and gaming rooms of the capital or hosting intimate gatherings at her tottering abode. In addition to her blog and Facebook, Madame G is also quite the charmer on Twitter. Her first book, Life in the Georgian Court, is available now, and she is also working on An Evening with Jane Austen, starring Adrian Lukis and Caroline Langrishe.

Midwives, Infanticide, and the Law

by Sam Thomas

While we often (correctly) associate midwives with childbirth, one of the factors that makes them such compelling figures both in history and in fiction is that their responsibilities did not end at the delivery-room door. In addition to being the most important female medical practitioners, midwives were central to the maintenance of law and order, as they investigated cases, questioned suspects, and examined condemned women to ensure that no pregnant women were executed.

While midwives could become involved in any case involving women, their role was largest in cases of infanticide. When legal officials suspected that an infant had been murdered, they would essentially deputize the midwife, and let her conduct the search for the child’s body and identify the murderer.

According to Susan Topham, when the constable suspected a case of infanticide he “required [me] and other neighborhood wives…to search Mary Broughton.” Upon the discovery of a dead child in the parish of Hawksweek, the constable was given a warrant “to summon and charge several grave matrons to enquire after and search all women…that they should any way suspect to be guilty of the late private bearing of a child.” 

Unlike modern “whodunnits,” in cases of infanticide there was usually not much doubt as to the guilty party. When an infant’s body was discovered, suspicion fell upon unmarried women who had been (or were rumored to be) pregnant. The midwife would then examine the mother’s body, checking her breasts for milk and searching her ‘privities’ for signs that she’d recently given birth. In these activities, we see why midwives would need to have a certain strength of character in order to succeed. Not only did midwives have to control the delivery room, they had to unearth the community’s darkest secrets, often against stiff resistance.

The women charged with investigating a possible infanticide in Dalton, Cumberland ran into just such resistance when they attempted to search the body of a servant named Anne Nicholson. The investigators were resisted not by Nicholson, but by her mistress, Mary Holme. Initially, Holme did her best to keep her servant’s pregnancy a secret, and when word got out she attempted to prevent Nicholson’s interrogation. When parish women attempted to search Nicholson’s body, Holme “replied to them saying – Let’s see who dare be so bold as view her maids breasts without her consent.” A midwife who could not overcome this sort of resistance would not get very far in her investigations.

Once a suspect had been identified (and isolated), it then fell to the midwife to extract a confession. In some cases, suspects responded violently, as in the case of Jane Cooper. When Dorothy Lister accused Jane of being with child, “Jane called her a whore and beat her with her own hat.”

In most cases, however, the accused could do little except endure a humiliating interrogation and search of her body. What chance did a poor, unmarried woman have against a dozen or so of her powerful neighbors? We see this in the case of Mary Riley, who was questioned by the town midwife and a dozen other women who would not take “No” for an answer. After the constable arrested her, he, “carried her before the said Grace wife widow Toppan where there was a dozen more women or there abouts and they searched her bodie…” The women found signs that Mary had given birth, and they “pressed her farther and again till at last…Mary Ryley did confess that she bore a Child.”

Thus, while midwives delivered some women in labor, they delivered others to the gallows.

For more on the legal side of midwives’ work, including their role finding witches, wander over to A Bloody Good Read.

__________________________

Sam Thomas is the author of The Midwife's Tale: A Mystery from Minotaur/St.Martin's. Want to pre-order a copy? Click here. For more on midwifery and childbirth visit his website. You can also like him on Facebook  and follow him on Twitter.

So you say you want an execution...

by Samuel Thomas

Writers of historical fiction love executions. From Hilary Mantel’s Wolf Hall, to Nancy Bilyeau’s The Crown, to my own The Midwife’s Tale, authors cannot resist the lure of the gallows or (even better) the stake. Such moments provide drama, and tell the reader something important about the world our characters inhabit.

Unlike today’s executions which usually take place in a private (and bizarrely medical) setting, early modern executions had all the trappings of a civic ritual. Prayers were said, sermons preached, speeches delivered, all with the goal of setting the world right after a terrible murder. The blood of the victim cried out for justice – an eye for an eye – and the executioner provided it. 

 But the symbolism went further than this.  In many cases, a murderer was executed not at the prison, but at the very scene of the crime. In 1668, Thomas Savage murdered his fellow servant, and after his conviction, he was hanged from a gibbet built in front of the house where he’d committed the crime. What better way to close the book on a murder?

Executions thus were morality plays in which the Crown saw justice done and overawed its subjects with the power of life and death. Given this public setting, it was important that everyone played their part. The condemned was supposed to confess to his crime and confirm that the execution was just. The crowd were supposed to bear witness to justice and the power of the government.

If this was the goal of the play, however, in many cases the actors or the audience went off-script and improvised an entirely new drama, with a much more opaque meaning. The first place that the meaning of an execution could go wrong was with the crowd, for many executions had all the dignity of a three-ring circus.  Peddlers strolled through the crowd crying their wares, and many in attendance treated the execution as an opportunity for eating, drinking and socializing.

One pamphlet from 1696 shows a preacher delivering an execution sermon, while behind him see not only the condemned offering up his last prayers, but a magician performing on an adjacent stage. (In this case it seems better to be the opening act than the headliner.) In other cases, government officials explained their decision to publish the condemned prisoner’s final words by saying that the crowd was too loud for anyone to hear him. 

If a festive crowd (and magician) could get an execution off on the wrong foot, the condemned could make things worse. In many cases, Catholics those condemned for treason proved the most difficult to control. Some Catholics claimed to die as martyrs to the Church (rather than traitors to the Crown – a vital distinction at the time), kissing each step of the ladder as they climbed it, and in one case kissing the executioner himself! Once on the scaffold, they would use their final speeches not to affirm the justice of their execution, but to defend the Catholic Church.

In cases such as these, the crowd or even the presiding officials could get involved, once again robbing the event of its solemnity. In 1591, judge Richard Topcliffe attacked one prisoner saying, “Dog-bolt Papists! You follow the Pope and his Bulls; believe me, I think some bulls begot you all!” Not to be out done, the condemned replied, “If we have bulls [for] our fathers, thou hast a cow to thy mother!” Other prisoners taunted the crowd (who naturally gave as good as they got), or even engaged in raucous religious debates.

If executions were meant as awe-inspiring ceremonies that demonstrated the government’s power, many did not get the message, and we can only wonder what those involved made of such events.

--------------------------

Sam Thomas is the author of The Midwife's Tale: A Mystery from Minotaur/St.Martin's. Want to pre-order a copy? Click here. For more on midwifery and childbirth visit his website. You can also like him on Facebook  and follow him on Twitter.