'Common knowledge of the common law in later medieval England' by C.J. Neville in (1994) 29(3)
Canadian Journal of History 461 comments
Despite their complexity, the rules and regulations governing the substance and procedure of common law in later medieval England were surprisingly well understood by the medieval men and women who appeared in court as defendants. This paper examines records of sessions of gaol delivery, before which accusations of felony were put to trial, for the northern circuit in the years 1354-1460. It explores the ways in which a significant number of defendants were able to avoid altogether onus of trial by claiming exceptions to the law and more particularly, by arguing that the formal indictments under which they had been charged were "insufficient in law." The varied nature of these claims is reviewed, and emphasis is placed on tracing the source of what was in most instances highly technical information. The public venue of medieval trials undoubtedly contributed to the dissemination of a rough and ready familiarity with the law among persons of all ranks and the presence of trained lawyers at the sessions must also have made available to plaintiffs, defendants, and bystanders alike a well informed source of legal knowledge. But it is further argued that jurors of presentment, the men responsible in the first instance for bringing forward bills of indictment, may have played a crucial role in determining which defendants would be subjected to the rigours of a full trial and the possibility of death by hanging consequent on it, and which would not. The deliberate omission of factual details in the formulation of the written charges may in this sense have reflected more than merely a casual attitude on the part of the jurors towards statutory requirements enacted to regulate indicting documents. They may also be interpreted as one of a variety of means by which medieval jurors winnowed out of the legal process individuals whom they did not believe merited the full sanction of trial at gaol delivery.
Neville states that the article explores
a number of instances in which defendants were able to avoid the full rigours of trial at gaol delivery, not thanks to the acumen of royal justices, but on the basis of exceptions they put forward themselves in the course of their appearance in court. The source materials upon which this study is based are the records of trials for felony heard before justices of assize on the northern judicial circuit between 1354 and 1460. At least once a year, these justices travelled to the county towns of York (Yorkshire), Newcastle-upon-Tyne (Northumberland), Carlisle (Cumberland), Appleby (Westmorland), and Lancaster (Lancashire); they also presided over sessions held in the ecclesiastical liberties under the jurisdiction of the Archbishop of York and the Bishop of Durham. The commissions under which they operated gave them authority to put to trial suspects accused of, and detained in gaol for, a wide variety of felonious offences.
The northern records of gaol delivery, like those from the other judicial circuits, suffer from large gaps resulting from the ravages of time and the vagaries of poor storage, but as a body they reflect a substantial portion of the work performed by the justices responsible for trying felonious offences in the century or so under consideration. Altogether, the cases recorded there number 10,246 charges laid against 11,380 persons; they represent the business conducted at 416 separate sessions. The study begins with the middle years of the fourteenth century, when legislation of Edward III had begun to exert a powerful and lasting influence on the shape and form of written charges. From the mid-1350s their structure remained standard. The year 1460 has been chosen as a terminus post quem for the simple reason that the rolls of gaol delivery for the northern circuit end abruptly then.
It should be clear from the outset that sessions of gaol delivery dealt almost exclusively with suspects who belonged to the lower ranks of English society. Gentlemen and gentlewomen were only rarely indicted, and even more seldom brought to trial, in this venue. The aspect of the trial process with which this paper is concerned is the stage at which suspects were asked to plead in respect of a charge, as required by common law procedure in trial on indictment. On occasion, they did not do so. Instead of declaring themselves guilty or not guilty, they challenged the validity of the charge made against them, a process that would later become formalized as pleading in bar. The number of such exceptions is not insignificant. In the years between 1354 and 1460, some 725 were made, representing 7 per cent of the total number of charges known to have been laid. In every instance, the judges dismissed the defendants from custody, and the court never proceeded to a determination of their guilt or innocence.
The impressive knowledge of common law procedure demonstrated by those defendants is of some interest. Changes to the law were often enacted in parliament, and were almost always the result of scrutiny and discussion by highly skilled royal justices in the rarefied atmosphere of the chambers in which trials before Kings Bench and Common Bench were conducted and, by the fifteenth century, of the nascent Inns of Chancery and Court. Legal historians have been able to trace the effect of these substantive and procedural alterations to the workings of the law in the voluminous series of judicial records that survive from the later medieval period. But knowledge of these changes seems also to have been surprisingly current among contemporary folk, who had little or no access to masses of trial record, who had no opportunity to sit in parliament when new rules and procedures were promulgated, and who can hardly have counted among their familiars justices of assize based in Westminster.
The extent of common knowledge of the common law among a largely illiterate populace and, in the case of the north, one situated far distant from the central courts, poses some challenging questions about the dissemination of highly technical information in that society. This paper cannot claim to provide definitive answers to these questions. It is intended, rather, to stimulate discussion of the link it posits between the transmission of learned culture to the masses and current research on the role and the function of the jury in the criminal trials of medieval England. The findings of that research are reviewed below. The first section examines the wide variety of exceptions that defendants in the medieval north were able to call to the attention of the justices and which, when successfully claimed, virtually assured them avoidance of the onus of trial for felony. In the second section, the significance of these exceptions is explored. Traditional theories about the dissemination of technical information go some way towards explaining the source of the northerners' knowledge of common law procedure. But the further argument is made in the third section that juries of presentment may have played a crucial part in determining why some accusations reached the stage in the criminal process of formal indictment and subjection to trial that was its normal consequence, and why others failed to conform to the standards required of written charges, and so were adjudged insufficient in law. It is the contention of this last section that to the current debate on the voice of the jury in the records of the English medieval courts should be added the evidence of spoiled indictments.
Related to issues of jury behaviour and jury attitudes, moreover, are larger questions concerning the tenor of communal life in English medieval communities. Historians have long been aware of the profound tensions that informed rural life in the late Middle Ages, when demographic and economic changes affected relationships between local elites and their less powerful neighbours. An examination of the phenomenon of spoiled indictments reveals that the criminal trial process itself provided an opportunity -- one among many -- for the men who acted in the capacity of jurors of indictment in northern England to give meaningful expression to communal sentiment.
Neville goes on to note
The kind of knowledge of common law procedure required to challenge successfully a formal charge of felony was, in the instances cited above, widespread by the Mater medieval period; it had become by then part of custom, of what might, indeed, be termed "folk custom." But common knowledge of the common law extended far beyond a rudimentary familiarity with the well worn procedures surrounding benefit of clergy and pardon, and the rules governing sanctuary and its eventual outcome, abjuration. Unlettered men and women were surprisingly competent in positing more complex errors of procedural and substantive law as well. The late medieval period boasted no clear definition proper of felony, misdemeanour, and trespass; the distinction between felony and the two latter categories lay, rather, in the means by which they were prosecuted and the penalties attached to them. The tribunals in which each would be tried was a decision most often left to the determination of men learned in the law. Nevertheless, by the fourteenth and fifteenth centuries, royal justices had devised a rough and ready category of offences that they treated as felonies; these included homicide, rape, arson, larceny, burglary, robbery, and prison breaking.
The views held by common folk regarding the definition of felony generally echoed those of the lawyers, but defendants did not hesitate to remind justices of a shared climate of opinion on the subject when they thought it appropriate. More particularly, suspects sometimes queried the justices of gaol delivery about the nature of an offence alleged against them. In the Newcastle sessions convened in 1363 a defendant successfully argued before the presiding justices that his indictment, which accused him in vague terms of receiving a known thief, did not constitute a genuine charge of felony, and that he should be released from prison. A similar argument was made in a York court in 1410 -- again, convincingly -- when three men were released after demonstrating that the indictment laid against the principals in the alleged offences "made no mention of what felony in particular the principals committed." By the fifteenth century, the crown's continued inability to define clearly the status of some unlawful activities was permitting an increasing number of accused misdoers to avoid answering formal indictments altogether. This was especially true with respect to the charge of lying in ambush with intent to assault or commit homicide, which in the medieval period was most often, but not universally, left to the jurisdiction of justices working in county sessions or to commissions of oyer and terminer. At the Newcastle gaol delivery of 1428 one shrewd yeoman, accused of lying in wait "on the king's road at Herle with bows, arrows, swords and cudgels in order to slay Thomas Docheson, so that he was in danger of death," calmly pointed out to the justices that the indictment should be adjudged null and void, "because the manner and form in which it was taken makes it an indictment of trespass, and it makes no mention of what felony in particular the accused is said to have perpetrated."[30] He was released from custody a free man. On another occasion, the clerk who drafted an indictment before a coroner bungled a charge of larceny when he noted, more in the manner of an indictment of trespass than of felony, that an accused had "with force and arms" taken and carded off wheat worth 2s. The defendant challenged the wording of the document by arguing that it constituted a charge of trespass rather than felony, and was released from custody . . .
The success with which suspects were able to proffer challenges based on ambiguous points of law is sometimes astonishing, both in its perspicacity and audacity. At the delivery of Newcastle gaol in the Summer of 1441, the vicar of the church of Emildon avoided the obligation to place himself on the verdict of the country thanks to a claim that must have struck even the seasoned justices of assize with its ingenuity. When asked to plead, Master Thomas Eland stated that the indictment "does not charge him with 'raping' Elizabeth [wife of Adam Coke], because [the word] 'raped' in that document is not Latin." What he meant by this claim is that the verb had been misused by a scribe whose command of the Latin language was faulty, and who had thereby reduced the allegation to one of mere trespass. At the same delivery the justices were further confounded when two men indicted as receivers pointed out that the principal's indictment included a misspelling of the verb "to rob," and so lacked "the notion of felonious intent."
