Tag Archives: early english law

The Privilege of Sanctuary

Westminster Abbey was an extremely popular Sanctuary.

In medieval England, a criminal could go to a church and claim protection from the law. The authorities and the processes of criminal justice could not reach him. This was based on the idea that no force could be used on the consecrated and holy ground of the churches.

This privilege, called sanctuary, could be taken up by any criminals, ranging from murderers, rapists and thieves to the simple debtor who owed a sum of money.

The common law of the time stated that the privilege of sanctuary could only be used for up to 40 days. However, there were in existence some large sanctuaries (such as Westminster Abbey) that could house hundreds of criminals and had the facilities for them to stay indefinitely. When the criminals attempted to continue their criminal activities from the Abbey, the practice of these large sanctuaries was heavily frowned upon by the authorities and the public.

A criminal taking sanctuary had to, within the time limit of 40 days, decide on one of two courses of action. He could either turn up at the court and declare he was ready for a trial or he could elect to leave the country forever. He would then be escorted safely to the nearest port and would journey to a new country.

Judges attempted on several occasions to stop the proliferation of sanctuaries by stating that no new ones could be made without the King’s consent. However, many were already in existence and continued their activities.

There was a significant case between 1516 and 1520 regarding a large sanctuary at St John’s Priory. This led to calls for reform and Henry VIII declared that the ancient kings and old popes never had the intention of letting the sanctuaries be used to such a gross extent.

Henry proceeded to abolish almost all sanctuaries and removed the possibility of using the privilege for almost all crimes. The practice did not breathe its last until a statute of 1624 which stated ‘no sanctuary or privilege of sanctuary to be hereafter admitted or allowed in any case’.

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Age of Criminal Responsibility

The age of criminal responsibility is the age which if a child falls beneath it they cannot be held to have committed a crime and cannot be held responsible for their actions.

Before the 13th Century and the medieval times of England, it was a generally held custom that children under the age of 12 could not be convicted of crimes. The reasoning behind this is archaic. From 12 years old, a person was expected to be in frankpledge. This was a sharing of joint responsibility towards your relatives or to a Lord you had given your oath of service.

Being in frankpledge meant that if you committed wrongful actions and were summoned for judgment before your local hundred-court, but did not turn up, your relatives and lord could be fined on your behalf. By necessity this meant a person of 12 years of age had to be responsible for their actions.

In the 1300s, a child under 12 could be convicted of crimes if a judge held that they were able to tell right from wrong. This was a discretionary test but this level of mental capacity could be indicated by trying to evade the authorities, thus demonstrating your guilt.

The historical sources are unclear during the above centuries as to whether there was a lower age limit beneath which a child could definitely not be convicted. In the 17th Century, a lower age limit of 7 was agreed upon from the compilation of principles from archaic case law. Also, the upper limit was changed to 14, rather than 12. With any potentially criminal actions of a child under 14, it had to proven that they knew right from wrong.

This, broadly, remained the case until the significant legislation of the Children and Young Person’s Act 1933 which implemented an age of criminal responsibility of 8 years old. This was raised to 10 by the Children and Young Person’s Act 1963 and 10 remains the age of criminal responsibility in England today. An interesting modern case study and discussion on this issue can be found on this blog: EastLaw.

This age remains one of the lowest in the world, with countries such as Iran, Singapore, Sudan and Pakistan coming in below us by setting the age of criminal responsibility at 7. On the other end of the scale, many countries set the age between 12 and 14 and Sweden and Belgium at 15 and 16 respectively. It has been argued in numerous sources that we are out of step with modern opinion on this issue.

Indeed, the Committee of the Convention on the Rights of the Child 1989 recommends at the very least, a minimum age of 12. It is a point for which the Committee has consistently criticised England over the years.

A private members Bill is currently making its way through Parliament regarding the age of criminal responsibility, it had its first reading in January 2013. The Age of Criminal Responsibility Bill 2013 seeks to change the minimum age to 12. It is yet to be seen whether this will succeed, and become law, but it is an important, and interesting, one to keep an eye on.

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Lords, Freemen and Slaves

A typical Anglo-Saxon thegn.

In early English society, a distinction was made between the Freeman and the Slave. However, within these two categories multiple ranks existed and the differences between them were unclear. Some Freemen could be Lords, whilst other Freemen could be the followers of a Lord.

In ancient Germanic societies, a powerful chief would surround himself with followers, presumably to reinforce his status and for the purposes of protection. It is from this rough format, that the ideas of Lords existing and the importance of having a Lord to follow developed.

Within the category of Freemen, a ceorl was a freeman of an ordinary sort. An eorl was a freeman by virtue of noble birth and our modern day earls can trace the origins of their office back to this early start. A gesid was a well-born man that was specifically in service to the King in some capacity.

thegn was an important officer within the household of an important man. The different ranks had social importance but also carried legal importance. For example, a thegn’s wergild (the price of a man’s life) was six times more than a common man’s wergild. Moreover, a thegn’s oath for himself or as an oath-helper carried six times the power of a common man’s.

Other ranks of distinction include being a twelf-hynd, six-hynd or twy-hynd man which meant your wergild was set at 1200, 600 and 200 shillings respectively. A twelf-hynd man was also generally a thegn but the other two ranks were usually not.

In terms of the other category, there was a large population of Slaves in England until the 12th Century and a roaring Slave trade was carried out at English ports until an ordinance of Æthelred forbade it. Slavery was distinct from serfdom which was an attachment to the land, whereas slavery was an attachment to a person. Interestingly, a Freeman sometimes enslaved himself if he had fallen on hard times and had no other way to survive.

Several of these ranks form the basis of distinctions between people to this day and the determining of the precise legal status and implications of these ranks caused a great deal of confusion throughout the ancient and medieval times.

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Early English Law – Court, Trial and Proof

An open-air court in progress.

The early English courts and their system of administering justice bare no real resemblance to our modern day equivalents, they are truly antiquities of legal history.

A 12th Century court would have been held in the open-air and upon the most significant hill in the area. A local man of power, such as the Sheriff, would have presided over the court but the largest local landowners were bound by custom to attend and be the ‘doomsmen’ (judgment-men) of the court.

The sheriff would take care of the procedures of the court and pronounce the overall sentence but the doomsmen were the ones to find the appropriate doom to fit the facts.

If the two litigants contradicted each other in fact then there was yet no capacity for the holding of cross-examinations and judging the worth of a witness statement. In these circumstances, recourse would be to the supernatural, to prove ‘by God’ that one or the other was correct. This took three forms; (1) oath and oath-helpers, (2) ordeal and, after 1066, (3) trial by battle.

(1) If a man was accused of some offence, he would be required to swear on his word, his oath, the truth (typically that he was innocent). Rarely was his single oath allowed to clear him of the offence. Usually, a number of oath-helpers were needed.

These were people that could give witness to the character of the accused and claim that his oath was ‘clean’. A great deal of early legal procedure focuses on complex mathematical calculations as to the number of oath-helpers needed and the quality of them.

It seems, at first glance, that you could just call a bunch of friends to acquit you but there were strict ceremonial rules and phrases that had to be followed for oath-helpers. One mispronunciation or stutter and the accused’s adversary would win.

(2) If the charge was criminal, the accused might not be able to use his oath and oath-helpers. The ordeal was more explicitly judgment by God and came in the forms of Water and Fire. A man was lowered into a pit of water that had been blessed to accept innocent people but reject the guilty. If you sunk in the water, you were fished out and innocent but if you floated, you were guilty.

For Fire a white hot iron rod was placed in a man’s hand and he was told to take three paces. His hand would then be bandaged and looked at three days later. If the wound was clean, he was innocent, if it had fouled, he was guilty.

(3) Again, if a criminal accusation was made, the accused and accuser might have to fight in a battle. As long as they were not maimed, too young or too old, they could fight.

If the claim was regarding land then the litigants could choose a champion each to fight in their names. This was meant to be one of their people but in reality the hiring of professional champions became commonplace. If not regarding land, then they must fight in person.

The accuser has an entire day to prove his claim; not by killing the accused but making him give in. If he cannot do so within the day then his claim is false and he has lied to the court.

These forms of trial and proof were slowly frowned upon and taken out of the administration of justice. The ordeals required participation by priests and the Church made the decision to stop ordeals in 1215.

This did not affect trial by battle but in a couple of decades, this had fallen out of favour as well. Interestingly, trial by battle was not officially abolished until 1818 when a litigant threw down a gauntlet in anger in front of the judges of the King’s bench.

The oath-helpers changed their name to become compurgators and were more readily local people. This is one of the foundations of the development of trial by jury, which will be looked at in detail in a later post.

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