Saturday, April 13, 2013

On criminal pleas, homicide and rape in the 12th century.

Today's research snippet. The laws and customs of the Realms of England on the matters of homicide and rape at the end of the reign of Henry II, from the Glanvill treatise. This gives some fascinating insights into medieval life. For example - that 60 was the cut off age for trial by combat, which suggests that society viewed you as fit and capable up to that age - pretty much discounting the silly statements you sometimes see saying people were old by the time they were 35! Also interesting to see the class divisions. Why it was a high status thing to face ordeal by hot iron as opposed to ordeal by water which was for peasants, I don't know! And again one sees the subservient position of women.

Criminal pleas
If no specific accuser appears but the accusation is based only on public notoriety, then immediately the accused shall be safely attached, either by suitable sureties or by imprisonment.  Then the truth of the matter shall be investigated by many and varied inquests and interrogations before the justices, and arrived at by considering the probable facts and possible conjectures both for and against the accused, who must as a result be absolved  sold entirely or made to purge himself by the ordeal.  If the ordeal convicts him of this kind of crime then judgement both as to his life and as to his limbs depends on royal clemency as in other pleas of felony.
  If a specific accuser appears, he shall be immediately attached to give security for prosecuting his suit by sureties if he has any.  If he has no sureties, then he is put on a solemn oath, as in all pleas of felony.  An oath is deemed sufficient in such cases lest others should be deterred by excessive demands for security from making similar accusations. 
When the accuser has given security for prosecuting his claim the accused shall, as we said, be attached by sound and reliable sureties; if he has not, he shall be put in prison.  The accused is allowed his freedom on giving sureties in all pleas of felony except homicide, where, in order to intimidate, it is ordained otherwise.  Next, a day is given to the parties, and on that day the customary essoins (excuses for non appearance in court)  are available.
When at last, both parties are present, the accuser alleges that he saw that, or in some manner approved by the court, he knew with certainty that the accused had plotted or done something against the king’s Life or towards sedition in the realm or army, or had consented or given advice or lent his authority to this; and that he is ready to prove this is as the court shall award. (seems here to be citing the crime as an example rather than a single specific). If the accused denies everything in court in the proper manner, then the plea shall be settled by battle.  It should be known that, once battle is waged in this kind of plea, neither party may add to or take away from the words used in the actual wager, nor in any way go back on his allegations if he does so he is deemed to be vanquished and penalised as such. Nor can they in any way be reconciled to each other without licence from the lord king or his justices.
 If the appelor or is vanquished, he will be liable to ammercement by the lord king.  But if the accused is  vanquished, he  must expect the judgment mentioned a little way back;  in addition, all his goods and chattels shall be confiscated and his heirs disinherited for ever.
Every free man of full age may make this sort of accusation.  If a minor appeals someone, however, the minor shall be attached as described above.  A villain may also accuse.  A woman may not accuse anyone in a plea of felony, save in certain exceptional cases (homicide and rape).  The accused may refuse trial by battle in these pleas on account of age or a serious injury: the age must be sixty years or over; serious injury means a broken bone, or injury to the skull by cut or bruise.  In such a case, the accused must purge himself by ordeal, that is, by hot iron or water according  to his status: by hot iron if he is free, by water if he is a villain.

The plea of homicide.
There are two kinds of homicide.  The first is called murder: this is done secretly, out of sight and knowledge of all but the killer and his accomplices, and so cannot be immediately followed by the hue and cry which is required by the relevant assize.  No one is allowed to make an accusation of this kind unless he is a blood relative of the deceased, and within this limit proof of the accusation is awarded to him who is nearer the stock of dissent, to the exclusion of the remoter.
There is another kind of homicide which in ordinary speech is called simple homicide.  In this plea no one is allowed to prove an accusation unless he is a blood relative of the deceased or bound to him by homage or lordship, and can speak about the death from what he has seen himself.  It should be known, moreover, that in this pleas a woman is allowed to accuse another of the death of her husband if she speaks of what she saw herself, because husband and wife are one flesh.  Indeed, as a general rule a woman is allowed to accuse another of injury done to her body.  It is for the accused to choose whether he will rely on disproving the accusation of the woman, or will purge himself by ordeal from the crime imputed to him.  A person accused of homicide is, however, compelled to undergo the ordeal if he has been taken in flight by the hue and cry, and this has been duly sworn to in court by a jury of the countryside.

The Plea of the crime of rape
In the crime of rape a woman charges a man with violating her by force in the peace of the lord king.  A woman who suffers in this way must go, soon after the deed is done, to the nearest vill and there show to trustworthy men the injury done to her, and any effusion of blood there may be and any tearing off her clothes.  She should then do the same to the reeve of the hundred.  Afterwards she should proclaim it publicly in the next county court; and when she has made her complaint, the form of proceeding to judgment shall be as stated above.  In such a case the woman is allowed to make an accusation just as in every case of injury done to her body.  It should be known that in such a case it is for the accused to choose whether he will summit to the burden of the ordeal, or will rely on disapproving the accusation of the woman.
Moreover it should be known that if anyone is convicted in this kind of plea, the judgment against him shall be the same as in the crimes discussed earlier.  Nor can the wrongdoer escape this by expressing his willingness after judgement, to marry the woman he has defiled.  For if he could, it  would frequently happen as a result of a single defilement that men of servile status disgraced forever women of good birth, or that men of good birth were disgraced by women of the lowest estate, and thus the fair repute their families would be unworthily blackened.  But before judgment is given the woman and the accused can be reconciled to each other by marriage, if they have a licence from the king or his justices and the consent of their families.  (the opportunity for abuses of this law are chilling).

No comments: