The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 1

CRIMINAL PROCEDURE

In very general terms, the history of criminal procedure seems to follow this course. First, it is almost entirely in the hands of the injured party and his opponent, and takes place in local courts. Then the influence of the Crown makes itself felt, beginning with a cautious list of pleas of the Crown. There is for a long while no question of the Crown actually trying such cases—all it can hope for at first is a share of the proceeds. The second stage is when the Crown sets up machinery to discover hidden crimes. Many must have escaped altogether by reason of the unwillingness of anyone to bring an “appeal”, and this results in a loss of possible revenue to the King (to say nothing of the encouragement to criminals). The Crown henceforth will have a mass of crimes presented by grand juries, and will have to devise measures for trying them. Rapid development is therefore found in the various trial commissions, and the rise of the justices of the peace added materially to the resources of the Crown both in discovering crimes and in trying criminals. Thirdly, the existence of this elaborate machinery will permit the enlargement of the list of crimes since there are now numerous institutions capable of dealing with them. Many statutory felonies will be created, and many offences less than felony will be made cognisable by justices of the peace; this last development will be at the expense of those local jurisdictions which so far had dealt with them, and will also include some matters for which so far only trespass (in substance now a civil remedy) had been available.

ANGLO-SAXON CRIMINAL LAW

As we have already remarked, the Anglo-Saxon period is long1 and yet it is difficult to trace clear development over those five centuries for which we have written remains.

It is tempting at first to make a neat plan of the progress from warfare—the feud between the two kin of the criminal and the injured—to money compensation. One would expect the early laws to say more about fighting, and the later ones more about payment.2 The sources, however, do not align themselves so easily as this. Our earliest laws (Ethelbert’s) are mainly tariffs of payment; our later ones say much about feuds. In the middle of the tenth century Edmund is still laying down rules for the feud,3 and Canute is still legislating on it just before the Conquest.4 It is not easy, therefore, to establish an orderly progression, and it seems more probable that several stages of development were in fact existing side by side. Indeed, half a century after the Conquest we read this:

The avenger is thus something in the nature of an executioner, save that the trial of the slain takes place post mortem as part of the defence of the avenger.6 Quite early, however, it became possible to “buy off the spear” if one preferred not to “bear it”. An offer of wergeld will therefore prevent the avenger doing justice himself, and in criminal as well as civil matters, no action ought to be taken until a formal demand for satisfaction has been made and proved ineffectual. The laws of Alfred are very explicit on the matter:

We have here at least one element of legal procedure—delay. These intervals are obviously designed so that the offender may be put into touch with his family and friends with a view to settling the matter by paying (or promising to pay) the composition.

An even more striking fact is that so large a part of Anglo-Saxon criminal law had to be expressed in terms of money.

PLEAS OF THE CROWN

Gradually we hear of state-sanctioned punishments. Perhaps the injured party or his representatives will carry out the sentence, but the significance of the change lies principally in the fact that some of the greatest offences are now corporally punished and are not “emendable” with money save only by the King’s very special grace. In the reign of Canute we get the first explicit lists of royal pleas—and it is significant there are are different lists for Wessex, Mercia and the Danelaw.3 In Domesday Book4 we find differing lists for various counties, and even for various towns, while some of the greater sees and abbeys had received even these royal rights by grant from the Crown. Typical pleas of the Crown are foresteal (murderous assault from an ambush), breach of the King’s peace (in general, only if the peace had been granted under the royal seal), and hamsocn (violent breaking into a house). In some places larceny was a royal plea, but not generally. Glanvill gives us a short list5 which is the basis for the common law of future centuries: treason, concealment of treasure trove, breach of peace, homicide, arson, robbery, rape and the counterfeiting of the King’s seal or coinage. Larceny is omitted, as being only a plea of the sheriff.

By Glanvill’s day the old scheme of wer and wite had vanished, leaving very few traces. If all the payments were exacted (and as Maitland has calculated, the bill may be long and complicated) it is hardly imaginable that any ordinary person could pay it. The value of money changed, and the Normans reckoned by a shilling of twelve pence instead of the old English shilling of four or five pence. The Normans, moreover, with their memories of the duke’s “pleas of the sword”, may have given a much more precise meaning to the old conception of pleas of the Crown.1 Henceforward, the pleas of the Crown will be not merely pleas in which the Crown takes a particular pecuniary interest, but offences which were held to be committed against the Crown; the avenger will thus be the Crown as well as the injured party or his kin. These two ideas, one old and one new, make two alternative procedures necessary; and such in fact we find to be the case.

THE OLD PROCEDURE

The old procedure is of two sorts. The first dealt with the criminal taken in the act, and for him there was short shrift. Many local custumals2 relate the various deaths assigned to the hand-having and back-bearing thief. In the Anglo-Saxon age there was the possibility (at least in theory) of a thief redeeming his life by paying a sum equal to his own wer.

When the theft was not manifest, some sort of procedure was felt to be necessary. Its general features are the summons of the accused by the accuser; when both are present, the accuser makes a solemn fore-oath in support of his charge, and to exclude frivolous or malicious accusations. In some cases it might be supported by oath-helpers. Then the accused as solemnly denied the charge upon oath, and the court proceeded to the “medial” judgment which was generally to the effect that the defendant should “clear himself” by one of the ordeals. This sort of procedure long survived in those places which preserved ancient customs unaffected by the common law, such as London and various boroughs.

The Norman Conquest brought one great innovation—trial by battle; the sworn accusation and the sworn defence were transformed by introducing the charge of “felony” (a Norman and feudal conception), and the battle served as the ordeal. Soon the difficulties of conflict of laws were overcome3 and the mingling of races proceeded so far that, if the old procedure were invoked, it was generally the “appeal”, as it came to be called, and not the ordeal (save in some localities). The common law therefore accepted the old procedure into its system in the form of the appeal only.4

The appeal was in common use throughout the middle ages in county and other local courts. Even in the King’s Bench appeals were allowed,1 and appeals of treason were a particularly bizarre form of state trial. The “lords appellant” in the reign of Richard II are not the only nor the first examples. Robert de Montfort appealed, and convicted, Henry of Essex of treason in 1163,2 and there was a curious case in the Court of the Constable of England in 1453 when Lialton appealed Norris of treason. The Court assigned counsel to each party (trainers, armourers and painters), gave them equipment, and the King ordered “a convenient skaffold for us to have the sight of the said battaill”, and more curious still, the Crown bore all the costs and treated the alleged traitor with the same consideration as the appellant.3

Appeals survived particularly as a means whereby the relatives of a murdered person could still harass one who had been tried and acquitted. Spencer Cooper (a future Chancellor’s brother, and himself a future judge) was appealed after being acquitted of murder, but the process was quashed;4 the last case was Ashford v. Thornton, in consequence of which appeals of felony were hastily abolished.5

THE NEW PROCEDURE

Of the proceedings of the judicial and administrative Eyres of the earlier twelfth century, we have little detailed knowledge. It is only towards the end of that century that our knowledge becomes precise. The Assize of Clarendon (1166) set up machinery for discovering alleged criminals by means of the jury of inquest—the grand jury of modern times.6 This measure can hardly be explained save by assuming that the old procedure of private accusation had failed to give satisfaction. The King evidently hoped to hear of many criminals through the grand juries who would have escaped prosecution by private parties. Communal accusation is thus added to private accusation as an alternative procedure. The assize did much more than this, however, for it laid down the principle that persons indicted could be tried by the King alone, and that the forfeitures were his only. The indictment procedure therefore superseded all local jurisdictions both in the matter of trial and of profits. From this time onwards it thus became very necessary for the Crown to maintain a regular succession of travelling justices to “deliver the gaols” of those who had been committed to prison on indictment.

LATER DEVELOPMENT OF INDICTMENT

These indictments were at first taken before royal justices and sheriffs. The next great enlargement of the procedure was in the growth of the powers of justices of the peace, whose early history has become known only recently.1 In the reign of Edward II they were given powers of taking indictments, in addition to their older functions. Once again there must have been a sudden increase in the number of indicted persons awaiting trial. Justices of gaol delivery had therefore to be commissioned with more frequency; it was out of the question to send justices from the superior courts, and so, even in Edward II’s reign, we find that commissions of gaol delivery were issued to small groups of experienced and trustworthy justices of the peace. The next reign saw the logical development of this; the justices were allowed to try indicted persons themselves, and without the issue of separate commissions, although not for all offences. Commissions of gaol delivery continued to issue, although the work of the commissioners was much lightened by the activity of justices acting under their enlarged commissions.

The early fourteenth-century indictment was as simple a document as later ones were complex. There were no formalities, but merely the date, list of jurors, and brief statements that A stole an ox, B burgled a house, C slew a man, and so on. The “fear of God”, the “instigation of the devil” and the rest of the horrific jargon of the classical forms seems not to be mediaeval. Too much simplicity gave room for abuse, in fact, and statutes were needed to protect the indictment from being “embezzled”,2 and to ascertain the precise person accused by describing his station in life—a clause known as the “addition”3 and productive of much technicality later on, when indictments fell into the hands of the special pleaders, who had further to use the greatest precision in setting out every element of the crime charged.

INFORMATIONS

The principle of private initiation was not lost; indeed, the strength of that principle is characteristic of the common law. Anyone who cared to could procure an indictment and carry on the necessary proceedings—and if the statute book is to be believed, many indictments were in fact procured out of hate and spite. On the other hand, a grand jury could ignore a bill as it saw fit. The Crown had not yet gone very far in the direction of initiating criminal proceedings; at most it had made it reasonably easy for a private person to do so. From Edward I onwards, the Crown occasionally used “informations” to put a man on his trial for treason, felony or misdemeanour, and thus at last the Crown found ways of directly initiating a criminal proceeding.1 The Star Chamber (and later on, statutes) allowed private persons as well as the law officers of the Crown to put in informations. It was the use of informations by the Council and Star Chamber, coupled with their lack of jurisdiction over felonies, that probably gave rise to the newer rule that informations lie only for offences less than felony. They became involved in the political and constitutional struggle of the seventeenth century, and strong efforts were made to get them adjudged illegal. These attempts failed, and informations, properly pruned by statute, received a settled position in criminal procedure.2

PROCESS AND OUTLAWRY

Criminal as well as civil procedure is to some extent the result of standardising and formalising natural impulses. The criminal caught in the act is thus summarily dispatched after a brief altercation before a local court or bailiff. When a crime has been discovered the natural thing to do is to call for help and pursue the trail of the criminal. This is regularised as “hue and cry” and neglect to raise it is a serious matter; even if the diligence of the hue and cry does not result in a capture, the whole vill will be amerced; so too it is a serious offence to raise the hue and cry without justification. The neighbours ought to turn out with their weapons (specified in the Statute of Winchester3 ) and go from vill to vill. The criminal who is caught as the result of hot pursuit will be dealt with summarily as just described.

If an appeal was begun against an absent person, the preliminaries to outlawry began (and it took five successive county courts to complete the process). If an absent person has been indicted, the sheriff ought to arrest him, but it generally happened that arrest was impossible, and so once again the long procedure of outlawry began.4 The result of outlawry on criminal process is, in effect, a conviction; the outlaw is “attained” and forfeits his chattels, while his free land (after the King’s “year, day and waste”) will escheat. If captured, the outlaw could be hanged merely upon proof of the outlawry having been made.1 Anyone could capture him and kill him if he resisted. It needed a resolution of the judges in 1328 to save his life against anyone who took a fancy to kill him,2 and the forfeiture for outlawry was still preserved by the Forfeiture Act of 1870.

SANCTUARY

It quite frequently happened that in the meantime the accused had fled to a sanctuary. In general, this would be a local church or monastery; once there, the accused had the right to “call for the coroner”, confess to him, and abjure the realm within forty days. The coroner assigned the nearest port, and the criminal was allowed safe conduct thither, and had to take the first available passage abroad.3 Under Henry VIII he was also branded in order to facilitate his identification if ever he returned—which would make him liable to be hanged as a felon.4 Flight to certain great liberties, such as the palatinates, the liberties of St. Martin le Grand, of Westminster, and others, afforded much greater protection. In these places the King’s process did not run, in consequence of a “mixture of law and custom, grant and prescription, forgery and usurpation” which makes the history, as well as the legal foundation, of these greater sanctuaries very obscure.5 In such favoured places even the coroner could not enter, and the sanctuaryman was completely immune. The lords of these places enforced discipline, registered their new subjects and took an oath of fealty from them. The houses of Lancaster, York and Tudor struggled hard against these anomalies. Henry VIII abolished many, and substituted eight “cities of refuge”.6 Acts of Parliament availed but little, and many sanctuaries whose legal existence (if any) had been cut short, continued to flourish—like “Alsatia”—merely by virtue of gangster organisation and the absence of official police.

EXAMINATION

The old books make little reference to the examination of accused persons pending their trial, and in ordinary cases there was probably none; in cases of political or social importance, however, there are indications that prisoners were examined, and occasionally tortured. Coke’s attitude towards the matter throws a curious light upon his own and his age’s point of view. In the preliminaries to the trial of Edmund Peacham for treason, the prisoner had been examined under torture by Bacon (then Attorney-General), who communicated the results to Chief Justice Coke, who would normally have tried the case. Coke properly protested, and Peacham was therefore tried by the Chief Baron. That was in 1614. The very next year, however, Coke himself did much of the investigation and collecting of evidence against the Earl of Somerset, whom he then proceeded to try for murder.

For lesser folk there was a statutory procedure of examination by justices of the peace. From quite early times, a coroner had the duty of making inquiries in certain cases, both by his jury and by examining on oath persons who could give information. In 1554 a statute1 required him to commit to writing the results of his investigation, and at the same time extended the principle to justices of the peace. They were therefore empowered to examine prisoners and those who proceeded against them, and to write down the material portions of what they said for use subsequently at the trial. Stated in this way, it would appear that the act intended to introduce a reform of great importance into criminal procedure. It did effect an important reform, but apparently by accident, for the motive of the enactment was, it seems, to prevent collusion between justices and criminals;2 it was alleged that justices were much too easy in bailing suspects and so the act required them to write down the statements of the prosecutor, the prisoner and the witnesses before bailing them—evidently to prevent a matter being stifled at its inception, and to prevent abuse of the power of admitting to bail. The next year another act3 extended the procedure to cases where the prisoner was not bailed but committed, and soon it became apparent that an important novelty had been introduced, albeit obliquely, into criminal procedure.

These examinations were purely ministerial, and need not be taken in the presence of other parties. The effect was to turn the justice of the peace into something between a detective and a juge d’instruction. The creation of a professional police force in 1829 and succeeding years relieved the magistrates of the duty of investigation, and so it was possible to change the character of their preliminary examination; in 1848 Sir John Jervis’ Act4 required that witnesses should be examined in the prisoner’s presence, and should be liable to cross-examination by him. The accused was permitted by the act to call witnesses who were to be treated in the same way, and was entitled to have copies of the depositions. If the proceedings raise a “strong or probable presumption of guilt” in the minds of the magistrates, they are to commit or bail him for trial. The magisterial inquiry has thus become, in form at least, although not in substance, a judicial proceeding.

TRIAL BY JURY

Of arraignment and the prisoner’s plea, and the imposition of jury trial sanctioned by the peine forte et dure, we have already spoken.1 Of the old procedure by “appeal” we have likewise given an example.2 It is now time to consider the proceedings on the occasion of a jury trial.

There is not much light on this subject in the mediaeval sources. The information they give us is generally concerned with state trials and there is the obvious difficulty of deciding how far they represented normal practice. There are rules about the challenging of jurors which Bracton lays down in rather general terms3 —rules which he seems to have derived from the canonist rules which disqualified witnesses on the ground of relationship, interest, etc. Bracton also recommends the discreet justice to examine the jury rigorously on the grounds upon which their verdict is based.4 By means unknown the rule arose, sometime between Bracton and Fortescue, that the prisoner could challenge up to thirty-five jurors peremptorily.5 Here it is well to notice the difficulty which Sir James Stephen feels;6 if the jurors were witnesses (as he believed), how strange it is that a prisoner can peremptorily exclude up to thirty-five of them. The answer clearly is, that jurors never were witnesses but were rather representatives, as we have seen. Challenges were freely used in the middle ages, both in civil and criminal cases, and leave their mark on the record in the words “the jury being elected, tried and sworn say upon their oaths that . . .” A juryman who was excluded from the jury might yet be competent as a witness to inform the jury.7 Indictors, as we have seen, were removable by challenge from a petty jury since 1352.8 The number of peremptory challenges in trials of petty treason and felony (but not high treason) was reduced from thirty-five to twenty in 1531.9

Fortescue says little of criminal trials, save the wide powers of challenging jurors, both peremptorily and for cause; he leads us to conclude that the proceedings in the presence of the jury are analogous to those on the trial of civil issues—the swearing of witnesses, their examination and so forth.

A century after Fortescue, we have a fairly full description of a criminal trial by Sir Thomas Smith.1 He tells us of the arrangement of the court room, the criers, the proclamations and the impanelling of the jury. The case opens with the justice who committed the prisoner bringing into court the depositions taken under the act of Philip and Mary, which are read—from which it will be seen that they already serve the new purpose (for which they were not designed originally) of serving as evidence. The prosecutor, the constable and the witnesses are then sworn, give their evidence, and seem to engage in a lively altercation with the prisoner which lasts until “the judge hath heard them say enough”. He then charges the jury, although Smith does not distinctly say that he sums up. They then proceed to the next case, and by the time two or three more cases have been heard, the jury will protest that their memory is sufficiently taxed, and will ask to retire to consider their verdicts.

The main features of the Elizabethan criminal trial have been admirably summarised by Sir James Stephen in these words:

These remarks seem a fair summary, save perhaps that it ought to be mentioned that bail was granted freely, and so there was some opportunity for preparing a defence in such a case.

REPRESENTATION BY COUNSEL

It was a very ancient principle that no counsel was allowed to persons charged with treason or felony against the Crown; counsel were allowed in an appeal as this was brought by a private person and not by the Crown. A slight relaxation was made in the late fifteenth century when it became general to allow counsel to argue points of law,1 which at that time were generally objections to the indictment. The origin of the rule seems to have been the fact that counsel was hardly necessary. As we have seen, in Bracton’s day the court took charge of the proceedings, and viewed indictors, prosecutors, jury and prisoner with impartial distrust. There was little that required expert knowledge until indictments became technical documents, and when that point was reached, counsel for arguing them was allowed almost at once. When the use of witnesses was more clearly understood, and a technique of examining them developed, the situation was again materially altered, and the prisoner was at a disadvantage in attempting to cross-examine when the case for the prosecution was sprung upon him, and his own defence still unprepared. This time the law did not bring its own corrective, and made little attempt for a long time to meet the changed circumstances.

From 1640 to the Revolution there are unmistakable signs that public and also professional opinion was dissatisfied with the existing trial practice in criminal cases, and the Revolution was quickly followed by reforms.2 In 1696 momentous changes were made in trials for treason. The accused was allowed counsel, a copy of the indictment, and to bring witnesses on oath,3 but not until 1837 was counsel allowed in cases of felony.4

WITNESSES

From the earliest days of the jury, witnesses were used, although by differing procedures. At first the jurors themselves might have first-hand knowledge of the facts, or they might obtain that knowledge by private inquiry. It was later possible to bring witnesses to give testimony before the jury, but they did so at some risk. As late as 1450 it was considered normal for the jurors to go to a man’s house and ask him what he knows about a matter, but if he goes to the jury, it is maintenance.5 Honest witnesses were therefore reluctant, although in Chancery proceedings a useful method was devised by summoning them by sub poena, which enabled them to testify without fear.6 At common law witnesses were not compellable, and no process issued against them. In civil proceedings counsel were so closely identified with their principals, and so great an obligation rested on them to tell the truth, that the allegations of counsel seem to have been treated as evidence.7 Even Coke was moved to say that the evidence of witnesses to the jury is no part of a criminal trial, for trial is by jury, not by witnesses. The jury was indeed inscrutable, and trial by witnesses had been distrusted for some five hundred years in Coke’s day.1

Nevertheless, the importance of witnesses steadily grew in spite of this tendency to what must have been already mere archaism. A great landmark is Elizabeth’s statute2 which established a process to compel the attendance of witnesses and made perjury by them a crime. This act seems only to touch civil proceedings, but as we have already noted, witnesses could be bound over to appear under the second act of Philip and Mary,3 to testify against the prisoner, and so the Crown could compel its own witnesses.

A curious sign of the new spirit appears when courts began to allow prisoners to produce witnesses, although refusing to let them be sworn. A greater advance is to be found in an act of Elizabeth creating a new offence of “embezzling” arms from royal arsenals. This act concludes by allowing a person charged under it “to make any lawful proof that he can, by lawful witness or otherwise” for his defence.4 So too under an act of 1606 making certain felonies done by Englishmen in Scotland triable in England, prisoners are allowed to produce witnesses, who shall be sworn, for their defence.5 The same privilege was allowed on trials for treason in 1696, and in 1702 the legislature finally extended the principle generally by enacting that in treason and felony the defence may bring witnesses and have them sworn.6

EVIDENCE

The oldest portions of our law of evidence are concerned with the deed under seal, which for a long time was the only type of evidence to which it paid any regard, and which it has always treated with special respect. Somewhat analogous to this were the transaction-witnesses of Anglo-Saxon law, who had a somewhat similar function in criminal law. Just as the deed was a solemn evidence of civil obligation, so the transaction witnesses were pre-ordained evidence which could be used if need be as a defence to an accusation of theft. This type of evidence was in constant use during the middle ages, and combined neatly with the desire of lords to restrict buying and selling as far as possible to markets and such-like public occasions when the lord got his market-dues and the parties obtained the protection of publicity in their dealings.

Evidence given by witnesses to a jury, as we have seen, was for a long time an informal adjunct to legal proceedings rather than part of their essence. It is not surprising, therefore, that there was hardly any law governing its admissibility—evidence of previous convictions, for example, was admitted without comment.1 An old phrase alleging of two witnesses that one heard and the other saw occasionally appears, and in treason cases there was the statutory rule requiring two witnesses.2 This was perhaps of foreign origin, and English law did not adopt the general principle of merely counting witnesses.

The prisoner himself could not give evidence.3 The statements he made in court as he conducted his defence were not made upon oath, and the questioning he underwent in court in the sixteenth century based upon the magistrates’ examination, though often searching, did not result in sworn evidence by him. Moreover, the examination itself was inadmissible if it were made upon oath, for an oath was regarded as involving some degree of compulsion. Questioning prisoners at the trial fell out of use at the Revolution, but prisoners were still allowed to make statements in the course of the trial, and when they had counsel, such statements were often made on their behalf.4 In 1848 the magistrates’ examination was, by statute,5 to be preceded by the warning that it might be used in evidence, and that the prisoner need not make a statement unless he so wished. As a result, prisoners could not now be questioned either before or at the trial. Such a state of affairs, as Sir James Stephen observed,6 did not necessarily work injustice if the defence was carefully prepared and skilfully conducted; but in practice most prisoners could not afford an elaborate defence, and for them the system often meant disaster. It was felt that expense and time could be saved if prisoners could give evidence on oath, and that this was the only practicable course in many cases if the real defence was to be elicited at all. A series of acts during the nineteenth century sponsored by Lord Denman and Lord Brougham enlarged the class of competent witnesses in civil cases, but not until 1898 were accused persons made competent (but not compellable) witnesses at their trial.7 Compulsory examination on oath has never been applied to prisoners except in the Star Chamber and the Court of High Commission.8

BURDEN OF PROOF

Rules of evidence and procedure (and especially those which are now obsolete and so outside our personal observation) cannot be judged apart from their actual working, and when that practical aspect of them is investigated, the result may be surprising. For example, the rule that the burden of proof lies upon the prosecution is now considered as a valuable safeguard for the accused. As at present administered, this is true, but it has not always been so. In times past a corollary was drawn from it to the effect that as the prosecution had the burden of proof the defence need do nothing;1 hence the defence could not call witnesses nor engage counsel. Both were superfluous, for if the Crown proved its case, that was an end of the matter; if it did not, the failure would be apparent in spite of the silence of the defence.

On the other hand, the canonical system, as applied in the eighteenth century to clergy, and to laymen who had been tried under the Church’s criminal jurisdiction, adopted the principle that it is for the accused to prove his innocence. This sounds harsh to modern ears, but the logical implication was drawn that since the accused bore a burden of proof he was entitled to call witnesses for his defence. The prosecution, having a merely passive rôle, could call none.2 Acquittals consequently followed with monotonous regularity.

SUMMARY TRIAL

Very gradually the legislature ventured to make some offences triable “upon examination” by justices of the peace, that is to say, without a jury. This was a serious break with common law tradition at several points. An early experiment in this direction was made in the reign of Henry V, when justices of the peace were empowered to examine both masters and labourers who had transgressed the statutes of labourers “and thereupon to punish them upon their confession as if they had been convicted by inquest”.3 It would seem that, if they did not confess, the justices could not proceed further without a jury. A statute of Henry VII apparently extended this power of trial on information by the Crown without jury to all statutory offences less than felony.4 This statute was repealed5 at the accession of Henry VIII, but new statutes were made embodying the principle, and became very common under the Restoration, dealing with a vast number of petty offences. By 1776 a leading practice book devoted nearly two thousand pages to the offences triable by this procedure. Gradually it became customary for such statutes to grant an appeal to quarter sessions, but in the vast majority of cases there was no appeal.1

BENEFIT OF CLERGY

This ancient and curious privilege dates from the twelfth century.2 Judging from the Anglo-Saxon laws, clergy were generally amenable to the same jurisdictions as laymen, although they had preferential treatment in the matter of proofs and penalties. The problem of competing jurisdictions became evident after the conquest. The Norman kings asserted the principle that clergy who also had a lay capacity (as earls and feudal tenants) could be tried by the King in respect of their misdeeds committed in their lay capacity. The Constitutions of Clarendon (1164), coming immediately in the midst of the conflict between Henry II and Becket, profess to perpetuate the practice of Henry I’s reign—a “criminous clerk” was to be charged in the King’s Court, tried by the Church and degraded if guilty, and returned to the King’s Court for punishment as a layman. The murder of Becket produced such a psychological revulsion, however, that the Crown made no further attempt to enforce the Constitutions of Clarendon, and surrendered criminous clerks unconditionally to the Church.

That was the high-water mark of ecclesiastical privilege; the rest of the history is the story of its slow decline. There seems no sign in Bracton of that decline, but soon after his day it becomes apparent. Clergy were always charged in the first place before the secular court, and many of them immediately claimed their clergy; others, however, preferred to take their chance with a jury, and only demanded their clergy if the verdict was against them. The royal courts clearly preferred this latter course, and eventually came to insist upon it; even if clergy were claimed immediately upon arraignment, the lay court would proceed to a verdict before relinquishing them as “clerks convict”. In the meantime the convict’s property is taken into the King’s hand to abide the event in the Church Court. By 1352 the clergy are complaining that clerks have been hanged by judgment of secular courts, and the Crown admitted that things had moved too fast, and promised that “clerks convict” of petty treason or felony should be handed over, the Church in return promising to imprison them and punish them duly.3 By this time, moreover, the usual test of clerical status was ability to read, although for a time some regard was paid to the prisoner’s dress and tonsure. Once in the ecclesiastical court, various modes of trial were in theory possible, but in practice it was almost universally compurgation, or “canonical purgation” as it was technically called. With the decline in estimation for this form of trial a serious situation arose, for acquittals were much too frequent, the trial becoming little more than a formality. Even if the clerk failed in his purgation, there was considerably difficulty in preventing him from escaping out of the bishop’s prison.

The whole affair thus became highly artificial, and queer results sometime followed. Thus, a married man could have the benefit (for clerks in the lowest orders were not excluded from marriage). But a bigamist lost his clergy, and a bigamist was a man who had (a) married twice, or (b) married a widow. Thus a married man’s life may depend on whether his wife was a virgin when he married her, and the Court can “find that out straight away from a jury”.1

In 1376 a curious petition in parliament observed that bigamists were now numerous, “by reason of diverse pestilences”, having married twice, or having married widows. Others had avoided this perilous condition by not re-marrying after their first wife’s death, but were living in sin. They suggest that benefit of clergy should not be lost in such circumstances. To this touching appeal by bigamists who evidently anticipated that they would some day commit felony, the crown replied with a short refusal.2

In 1490 it was enacted that a clerk convict should be branded,3 for it had become a rule that the benefit could only be used once; this would make enforcement of the rule easy. The Reformation would at first sight seem to have been a convenient moment for abolishing so troublesome a relic of Rome, but in fact policy fluctuated. It was actually extended in 1547 to bigamists, and to peers of the realm whether they could read or not,4 and peers were excused the branding, too; it was further extended partially in 1624, and completely in 1692, to women.5 In 1707 all the world were admitted, by the abolition of the reading test, or “neck verse”.6

As a matter of fact, all this means that the nature of benefit of clergy had undergone a radical change. In 1576 it was enacted that clerks convict should no longer be handed over to the ordinary, but should be forthwith discharged, and so the last connection of the benefit with either Church or clergy was severed, but the same act authorised one year’s imprisonment before discharge, at the discretion of the court.7 Even before the Reformation, Parliament had ventured to enact that petty treason should no longer be clergyable (perhaps justifying its boldness on the ground that it was the statute de clero1 which had made it so). After the Reformation a long line of statutes made murder, piracy, highway robbery, rape, burglary and a host of other crimes non-clergyable. The result was important. The gap between felony and misdemeanour was much too large, and by using the benefit of clergy Parliament was able to make some crimes capital for a first offence (non-clergyable) and others capital only for a second felony (clergyable). Thus a rough classification of crimes into more than the two mediaeval categories became possible. This process was carried further by developing the policy of the Act of 1576, and condemning persons convicted of clergyable larceny to transportation for seven years. Thus the survival of clergy greatly modified the harshness of the penal law and permitted the growth of a graduated scale of punishment.

Benefit of clergy was abolished in 1827, but its ghost continued to haunt the law until less than a hundred years ago.2

[1]Above, p. 9.

[2]Cf. the remark that, in compositions, it is the Christian rather than the Germanic spirit which is at work: Fustel de Coulanges, La monarchie franque, 483.

[3]II Edmund, 1. 7 (941-946).

[4]I Canute, 5 a (2 b). The date is 1020.

[5]Leges Henrici Primi, 83 (6).

[6]Similarly, the kinsman of a convicted thief could secure his posthumous rehabilitation by himself undergoing the ordeal; if this was successful, the remains of the deceased were exhumed and reinterred in consecrated ground: III Aethelred, 7 (c. 997). For late survivals in a civilised community, see C. Petit-Dutaillis, Droit de vengeance dans les Pays-Bas au quinzième siècle (Paris, 1908).

[1]Alfred, 42.

[2]Pollock and Maitland, i. 48.

[3]II Canute, 12-15.

[4]Details in Pollock and Maitland, ii. 454-457 (but cf. Goebel, Felony and Misdemeanour, 402 ff.).

[5]Glanvill, i. 2.

[1]For pleas of the sword, and Norman criminal law in general, there is a convenient summary in Le Foyer, Exposé du droit pénal normand au XIII^e siècle (Paris, 1931). Cf. Ernest Perrot, Les Cas royaux (Paris, 1910).

[2]Borough Customs (ed. Bateson, Selden Society), vol. i; Law Quarterly Review, lv. 182.

[3]The rules, as between English and Norman, were settled in Willelmes asetnysse (in Robertson, Laws of the English Kings, 233).

[4]Cf. above, p. 121. Appeals of breach of the peace occur occasionally. For valuable details see Sayles, King’s Bench, ii. p. lxxxi. For appeals of trespass in local courts tried by wager of law, see Court Baron (Selden Society), 76.

[1]For an appeal of mayhem in the King’s Bench when the appellant had judgment for damages, see Attorney-General v. Hunston (1488), Bayne, Cases in Council of Henry VII (Selden Society), 62, 64-67.

[2]Jocelyn de Brakelonde, Chronica (Camden Society, vol. xiii), 51-52; Henry had said, in battle, that the king was dead. Cf. Select Pleas of the Crown (Selden Society, vol. i), no. 115 (1214) for the felony of announcing the king’s death (which spread despondency and alarm). Numerous appeals of treason are listed in L. W. Vernon Harcourt, His Grace the Steward, 349 n. 1.

[3]Proceedings and Ordinances of the Privy Council (ed. Nicolas), vi. 129 ff.

[4]R. v. Toler (1700), Ld. Raym. 555.

[5](1819), 1 B. & Ald., 405; 59 Geo. III, c. 46. On the relation of acquittals on appeal and the suit of the crown, see 3 Hen. VII, c. 1, and Blackstone, Commentaries, iv. 335.

[6]Text in Stubbs, Charters; translated above, pp. 112-113.

[1]Putnam, Proceedings before Justices of the Peace (Ames Foundation); Kent Keepers of the Peace (ed. Putnam, Kent Archaeological Society).

[2]1 Edw. III, st. 2, c. 17 (1327); 8 Hen. VI, c. 12 (1429). These acts dealt with removing a genuine indictment from the file; whether the placing of a false indictment upon the file is criminal, is entertainingly discussed in a star chamber case: Y.B. 2 Richard III, Michs. no. 22, ff. 9-11.

[3]1 Hen. V, c. 5 (1413). The common law writ De Idemptitate Nominis for the relief of those whose property had been seized in error was quite inadequate; see the complaints in Rot. Parl., ii. 277 no. 20 (1363).

[1]Pollock and Maitland, ii. 662, but the examples there given must be compared with others contra. In 1290 it was held that the king’s suit could only be taken on an indictment, an appeal, or if the prisoner was found with the mainour, Sayles, King’s Bench, ii. 26 (with which compare the protest, ibid., 131).

[2]Their history will be found in Holdsworth, ix. 236-245. Many acts made provision for rewards to informers. The crown might also use exceptional procedure, e.g. when James I turned detective: Sanchar’s Case (1612), 9 Rep. 114 at 120 b.

[3]13 Edw. I (1285).

[4]It is very rare for a criminal jury to pass in the absence of the accused; see, however, Sayles, King’s Bench (Selden Society), i. 102 (1282).

[1]Eyre Rolls (Selden Society, vol. lix), no. 1005 (1221).

[2]Y.B. 2 Edward III, Hil. no. 17; 27 Ass. 41; but see also Bracton, f. 134.

[3]Bracton, f. 135-136, remarks that abjuration (in other circumstances) is as old as the Assize of Clarendon (1166).

[4]21 Hen. VIII, c. 2 (1529).

[5]Thornley, “Destruction of Sanctuary”, in Tudor Studies presented to A. F. Pollard, 182-207. See generally, N. M. Trenholme, The Right of Sanctuary in England (University of Missouri Studies, vol. 1 no. 5), 1903. For the very similar “avowrymen” of Cheshire, see R. Stewart-Brown, Avowries of Cheshire, English Historical Review, xxix. 41.

[6]32 Hen. VIII, c. 12 (1540); Numbers, xxxv. 6; they were abandoned under Edward VI (Thornley, loc. cit.).

[1]1 & 2 Phil. & Mar., c. 13 (1554). On the defendant’s examination, see Bayne’s introduction to Cases in Council of Henry VII (Selden Society), xciv ff.

[2]This is discussed by Sir James Stephen, History of Criminal Law, i. 219, 236-238.

[3]2 & 3 Phil. & Mar., c. 10 (1555).

[4]11 & 12 Vict., c. 42 (1848).

[1]Above, p. 125.

[2]Above, p. 121.

[3]Bracton, f. 143 b.

[4]Ibid., f. 143.

[5]Fortescue, De Laudibus, c. 27.

[6]History of Criminal Law, i. 301-302.

[7]Thayer, On Evidence, 124, where the method of “trying” a challenge to a juryman is described.

[8]Above, p. 127.

[9]22 Hen. VIII, c. 14.

[1]De Republica Anglorum (ed. Alston), 94 ff.

[2]Stephen, History of Criminal Law, i. 350.

[1]Authorities are cited in Holdsworth, v. 192.

[2]Stephen, op. cit., i. 357 ff.; Holdsworth, ix. 230-235.

[3]7 & 8 Will. III, c. 3 (1696).

[4]6 & 7 Will. IV, c. 114.

[5]Y.B. 28 Henry VI, Pasch. 1 (1450).

[6]Thayer, Evidence, 129.

[7]Thayer, Evidence, 120, 133; Holdsworth, iii. 638.

[1]3 Inst. 26-27; Nemo de capitalibus placitis testimonio convincatur—Leges Henrict Primi, xxxi. 5.

[2]5 Eliz., c. 9 (1563).

[3]2 & 3 Phil. & Mar., c. 10 (1555).

[4]31 Eliz., c. 4 (1589).

[5]4 Jac. I, c. 4, s. 26.

[6]1 Anne, stat. 2, c. 9 (1702). See now S. Rezneck, The Statute of 1696, Journal of Modern History, ii. 5-26.

[1]See the narrative of a case of 1542 related by G. R. Elton, Informing for Profit, Cambridge Historical Journal, xi. 149 at 159.

[2]5 & 6 Edw. VI, c. 11 (1552); 7 & 8 Will. III, c. 3 (1696). For the history of the idea, see Holdsworth, ix. 203 ff.

[3]In the Anglo-Saxon period (and later still by local customs) an accused person might sometimes obtain acquittal by swearing an oath that he was innocent; such an oath is, of course, in the nature of an ordeal, and does not support evidence of any sort.

[4]Stephen, History of Criminal Law, i. 440 ff.

[5]11 & 12 Vict., c. 42 (1848).

[6]Stephen, op. cit., i. 444.

[7]61 & 62 Vict., c. 36 (1898).

[8]On this, and on the privilege against self-incrimination, see Bayne’s introduction to Select Cases in Council of Henry VII (Selden Society), xciii ff., and E. M. Morgan, The Privilege against Self-Incrimination, Minnesota Law Review, xxxiv. 1-45.

[1]For the lengths to which this logic was pressed in Scotland, see Stephen, History of Criminal Law, i. 352.

[2]The procedure is described in Stephen, op. cit., i. 460; it consisted of an exculpatory oath by the accused, twelve compurgatory oaths, evidence for the accused, and a verdict by a jury. It is interesting to observe that centuries earlier, an accused who was “put to his purgation” with so many oath-helpers could “redeem the purgation” and so settle the matter by a money payment; Pollock and Maitland, ii. 538 n. 5. So, too, in civil matters a canonical plaintiff could prove his debt by witnesses, although in common law the defendant could make his defence by compurgation; ibid., ii. 347 n.1.

[3]2 Hen. V, stat. 1, c. 4 (1414); 8 Hen. VI, c. 4.

[4]11 Hen. VII, c. 3 (1495). Cf. above, p. 183.

[5]1 Hen. VIII, c. 6 (1510).

[1]See a full discussion by Frankfurter and Corcoran in Harvard Law Review, xxxix.

[2]See Gabel, Benefit of Clergy in England in the later Middle Ages; Stephen, History of Criminal Law, i. 459 ff.; Holdsworth, iii. 294 ff. For additional references, see A. L. Poole, Domesday Book to Magna Carta, 218 n. 4.

[3]Statute Pro Clero, 25 Edw. III, stat. 3, c. 4 (1352, not 1350 as generally stated).

[1]Y.B. 30 & 31 Edward I (Rolls Series), 530.

[2]Rot. Parl., iii. 333 no. 63.

[3]4 Hen. VII, c. 13 (1490, not 1487 as generally stated; Rot. Parl., vi. 426, 437).

[4]1 Edw. VI, c. 12, ss. 16, 14.

[5]21 Jac. I, c. 6 (1624, not 1622 as usually stated); 3 Will. & Mar., c. 9 (1691).

[6]6 Anne, c. 9 (1707, not 1705 as generally stated).

[7]18 Eliz., c. 7 (1576). Stephen, History of Criminal Law, i. 360, is in error in stating that the act abolished canonical purgation.

[1]25 Edw. III, stat. 6, c. 4.

[2]“When benefit of clergy was abolished in 1827 by 7 & 8 Geo. IV, c. 28, the Act [of Edw. VI extending it to peers] was overlooked, and on the occasion of Lord Cardigan’s trial in 1841 it was doubted whether, if he were convicted, he would not be entitled to the benefit of it, notwithstanding the Act of 1827. The question was finally set at rest by 4 & 5 Vict., c. 22” (1841): Stephen, History of Criminal Law, i. 462.