MEDIEVAL JUSTICE AND THE JUDICIARY

MEDIEVAL JUSTICE AND THE JUDICIARY

My latest novel “The King’s Jew” (Book One) Available here http://bit.ly/1yop3AK has, as one of its central characters King Edward the First (1239 to 1307) who made many changes to English law.

When you see a judge or magistrate sitting in a modern court, you are actually looking at the result of 1,000 years of legal evolution.

Scales of Justice

TRIAL BY ORDEAL

Justice for the Anglo-Saxons and even after the Norman invasion of 1066 was a combination of local and royal government. Local courts were presided over by a lord or one of his stewards. The King’s court – the Curia Regis – was, initially at least, presided over by the King himself.

Nowadays going on trial in an English and Welsh court is not exactly a comfortable experience. But it’s far better than trial by ordeal, used until almost the end of the 12th century to determine guilt or innocence in criminal cases.

Under this system, the accused would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron of boiling water, or something equally painful and dangerous.

If their hand had begun to heal after three days they were considered to have God on their side, thus proving their innocence. The number of ‘not guilty’ verdicts recorded by this system is not known.

Another, extremely popular ‘ordeal’ involved water; the accused would be tied up and thrown into a lake or other body of water. If innocent, he or she would sink.

Water-ordeal

There were two problems with this method, which was often used to try suspected witches: the accused was tied right thumb to left toe, left thumb to right toe, which made it almost impossible to sink; and opinion is divided as to whether those who did sink were fished out afterwards.

William II (1087-1100) eventually banned trial by ordeal – reportedly because 50 men accused of killing his deer had passed the test – and it was condemned by the Church in 1216.

FIGHTING FOR FREEDOM?

Criminal and civil disputes could also be decided by trial by combat, with a win held to prove either innocence or the right to whatever property was being disputed. Either side could employ their own champions, so the system wasn’t perhaps as fair as it might be.

Trial by combat gradually fell into disuse for civil cases, although it wasn’t until someone involved in a dispute in 1818 tried to insist on it that it was realised this was still, technically, an option. Trial by combat was quickly banned, forcing litigants to rely on more conventional routes.

THE EARLIEST JUDGES.

During this period judges gradually gained independence from the monarch and the government. The very first judges, back in the 12th century, were court officials who had particular experience in advising the King on the settlement of disputes. From that group evolved the justices in eyre, (An Eyre or Iter was the name of a circuit traveled by an itinerant justice in medieval England (a Justice in Eyre), or the circuit court he presided over who possessed a mixed administrative and judicial jurisdiction).

The Justices in Eyre were not, to put it mildly, popular. In fact, they came to be regarded as instruments of oppression.

The seeds of the modern justice system were sown by Henry II (1154-1189), who established a jury of 12 local knights to settle disputes over the ownership of land. When Henry came to the throne, there were just 18 judges in the country – compared to more than 40,000 today.

In 1178, Henry II first chose five members of his personal household – two clergy and three lay – “to hear all the complaints of the realm and to do right”.

Trial

This, supervised by the King and “wise men” of the realm, was the origin of the Court of Common Pleas.

Eventually, a new permanent court, the Court of the King’s Bench, evolved, and judicial proceedings before the King came to be seen as separate from proceedings before the King’s Council.

SEEDS OF CHANGE.

In 1166, Henry issued a Declaration at the Assize of Clarendon (an assize was an early form of the King´s Council; the term later became the name for a sitting of a court).

The Assize of Clarendon ordered the remaining non-King’s Bench judges to travel the country – which was divided into different circuits – deciding cases.

To do this, they would use the laws made by the judges in Westminster, a change that meant many local customs were replaced by new national laws. These national laws applied to everyone and so were common to all. Even today, we know them as the ‘common law’.

The system of judges sitting in London while others travelled round the country became known as the ‘assizes system’. Incredibly, it survived until 1971.

Changes evolved slowly; even in the middle of the 14th century, under Edward III, there could be close collaboration between the Court of King’s Bench and the King’s Council. A third common law court of justice, the Court of Exchequer, eventually emerged as the financial business of the Royal Household was split off to a specialist group of officials.

THE FIRST PROFESSIONAL JUDGES AND MAGISTRATES.

Martin de Pateshull, Archdeacon of Norfolk and Dean of St Paul’s, became a Justice of the bench in 1217. By the time he died in 1229 he was known as one of the finest lawyers in England; even 60 years after his death, his judgments were being searched for precedents. He also had  a license from the king to keep fifty hogs in Windsor forest (perks of the job eh?)

Like Martin, many judges of this era were members of the clergy – although this did not necessarily mean they were parish priests, performing services, weddings and christenings. In an era when the church was rich and the King poor, joining the clergy was often just seen as a sensible means of support.

By the middle of the 13th century, knights had begun to join clerics on the bench. The first professional judges were appointed from the order of serjents-at-law. These were advocates who practised in the Court of Common Pleas. Lawrence de Brok, a serjeant, became a judge in 1268, starting the tradition, which lasted until 1875, of serjeants being the group from which judges were chosen.

This was important, because it meant that the judiciary now had real professional experience of the law before moving on to the bench.

Over the years, serjeants were overtaken in popularity by barristers and solicitors, and even today, these are the groups from which the judiciary is appointed.

JUDICIAL INDEPENDENCE.

During this era bribes and payments were common, but even so, in the middle of the 13th century the judiciary was openly accused of corruption.

In 1346, judges were obliged to swear that “they would in no way accept gift or reward from any party in litigation before them or give advice to any man, great or small, in any action to which the King was a party himself”.

Judicial salaries were also increased, so as to make them less dependent on other forms of income.

This didn’t always help: in 1350 the Chief Justice of the King’s Bench, William de Thorpe, was sentenced to death for bribery (he was later pardoned, but demoted – lucky he wasn’t a peasant!).

THE MAGISTRATES COURTS.

Meanwhile, a new type of court began to evolve – that which we now recognise as the magistrates’ court. Magistrates’ courts hark back to the Anglo-Saxon moot court and the manorial court, but their official birth came in 1285, during the reign of Edward I, when ‘good and lawful men’ were commissioned to keep the King’s peace.

From that point, and continuing today, Justices of the Peace have undertaken the majority of the judicial work carried out in England and Wales (today, about 95 per cent of criminal cases are dealt with by magistrates).

KING EDWARD THE FIRST (Reigned from 1272 to 1307) played an important part in organising the judiciary but at the same time ensured that his status and income were increased. No point in being a King if you can’t turn it to your advantage is there?

Certain legal aspects are dealt with in “The King’s Jew” though not in such depth as detailed above. The main thing is that even in law the King could be the final arbiter of who inherited what and who married who.

Any questions – just ask and here’s a link for those who wish to know more but within the context of an Historical Fiction novel. http://bit.ly/1yop3AK

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2 thoughts on “MEDIEVAL JUSTICE AND THE JUDICIARY

  1. It shows you how far ahead the Israelites were under the leadership of Moshe Rabbeinu that since their time in the desert, they had already established the Beit Din system, where judges from each tribe would sit and rule on matters both simple and complicated.

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  2. I agree Sophie – The Pesikta says that, all of Moshe’s life he wanted to bless the Jewish people, but the Angel of Death would not allow it. Finally, just before his death, Moshe “forced” the angel to allow him to, and even blessed them right in front of him, as it says, “before his death,” that is, before the Angel of Death.
    There is a famous man who appears in my book (he is not the King’s Jew though!) Yehuda ben Moshe, physician to the King of Castile and translator of Arabic works. Common sense and wisdom seem to be the stock-in-trade of the medieval Jewish man of learning.
    We can all learn from those who have gone before us.
    Thanks for your comment and best wishes to you and yours

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