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Settlement and the Decline of Private Prosecution in Thirteenth-Century England

Published online by Cambridge University Press:  28 October 2011

Extract

Although modern societies generally entrust enforcement of the criminal law to public prosecutors, most crimes in premodern societies were prosecuted privately. In classical Athens, ninth-century Germany, and England before the nineteenth century, there were no public prosecutors for most crimes. Instead, the victim or a relative initiated and litigated the cases. This article is the first rigorously quantitative analysis of private prosecution. It focuses on thirteenth-century England and uses statistical techniques, such as regression analysis, to show that changes in the treatment of settled cases can explain the rate of private prosecution.

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Copyright © the American Society for Legal History, Inc. 2001

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References

1. Here and elsewhere I use the term “crime” somewhat informally to refer to the type of offenses that were privately prosecuted in thirteenth-century England, including homicide, rape, robbery, larceny, burglary, and assault. Some legal systems, including England's perhaps into the thirteenth century, did not distinguish (or did not distinguish sharply) between civil and criminal cases.

2. Appeals have, for example, merited discussion in nearly every comprehensive work on the history of English law. See, e.g., Baker, J. H., An Introduction to English Legal History, 3d ed. (London: Butterworth Legal Publishers, 1990), 574–76Google Scholar; SirHoldsworth, William, A History of English Law, 4th ed. (London: Methuen, 1936), 2:256–57, 361–64Google Scholar; Milsom, S. F. C., Historical Foundations of the Common Law, 2d ed. (Toronto: Butterworths, 1981), 406–10Google Scholar; Plucknett, Theodore F. T., A Concise History of the Common Law, 5th ed. (Boston: Little, Brown, 1956), 428.Google Scholar Several recent articles also analyze appeals. Ernst, Daniel R., “The Moribund Appeal of Death: Compensating Survivors and Controlling Jurors in Early Modern England,” American Journal of Legal History 28 (1984): 164–88CrossRefGoogle Scholar; Groot, Roger D., “The Jury in Private Criminal Prosecutions before 1215,” American Journal of Legal History 27 (1983): 113–41CrossRefGoogle Scholar; Kerr, Margaret H., “Angevin Reform of the Appeal of Felony,” Law and History Review 13 (1995): 351–92CrossRefGoogle Scholar; Whittick, Christopher, “The Role of the Criminal Appeal in the Fifteenth Century,” in Law and Social Change in British History: Papers Presented to the Bristol Legal History Conference, 14–17 July 1981, ed. Guy, J. A. and Beale, H. G. (London: Royal Historical Society, 1984), 5572.Google Scholar

3. There is, however, a growing literature on such settlements. Much of it focuses on societies in which, unlike thirteenth-century England, feud flourished. Boehm, Christopher, Blood Revenge: The Enactment and Management of Conflict in Montenegro and Other Tribal Societies (Lawrence: University Press of Kansas, 1984), 121–42Google Scholar; Miller, William Ian, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago: University of Chicago Press, 1990), 259–99CrossRefGoogle Scholar; Wallace-Hadrill, J. M., “The Bloodfeud of the Franks,” in The hong-Haired Kings and Other Studies in Frankish History (New York: Barnes and Noble, 1962), 121–47.Google Scholar There is also some discussion of settlement of criminal disputes by English legal historians. See, e.g., Hay, Douglas, “Property, Authority, and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, Douglas et al. (London: Allen Lane, 1975), 4142Google Scholar; Landau, Norma, “Indictment for Fun and Profit: A Prosecutor's Reward at Eighteenth-Century Quarter Sessions,” Law and History Review 17 (1999): 507–36.CrossRefGoogle Scholar See also the articles cited above, note 2.

4. Presentment was accusation by a jury, which could be considered a form of public prosecution. See below, 5–7.

5. Hamil, Frederick C., “The King's Approvers: A Chapter in the History of English Criminal Law,” Speculum 11 (1936): 238–58CrossRefGoogle Scholar; Musson, A. J., “Turning King's Evidence: The Prosecution of Crime in Late Medieval England,” Oxford Journal of Legal Studies 19 (1999): 468–79CrossRefGoogle Scholar; Röhrkasten, Jens, Die Englischen Kronzeugen, 1130–1330 (Berlin: Duncker and Humblot, 1990).Google Scholar

6. Pollock, Frederick and Maitland, Frederic William, The History of English Law before the Time of Edward I, 2d ed. (Cambridge: Cambridge University Press, 1968), 2:450–51Google Scholar; Rubin, Stanley, “Bot Compensation in Anglo-Saxon Law: A Reassessment,” Journal of Legal History 17 (1996): 144–54.CrossRefGoogle Scholar

7. Hurnard, Naomi D., “The Jury of Presentment and the Assize of Clarendon,” English Historical Review 56 (1941): 374, 376–96CrossRefGoogle Scholar; Wormald, Patrick, “Frederic William Maitland and the Earliest English Law,” Law and History Review 16 (1998): 1112.CrossRefGoogle Scholar

8. For more about presentment, see Van Caenegem, Raoul C., “Public Prosecution of Crime in Twelfth-Century England,” in Church and Government in the Middle Ages: Essays Presented to C. R. Cheney, ed. Brooke, C. N. L. et al. (Cambridge: Cambridge University Press, 1976), 4449.Google Scholar That juries during the thirteenth century were self-informing represents the consensus of legal historians. Green, Thomas Andrew, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press, 1985), 1617.CrossRefGoogle Scholar Recently, some scholars have challenged this consensus by compiling evidence that fourteenth- and fifteen-century juries seldom lived close to the defendant and thus were unlikely to have had knowledge of the case before trial. See chapters by Lane, Bernard William, Powell, Edward, and Post, J. B. in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. Cockburn, J. S. and Green, Thomas A. (Princeton: Princeton University Press, 1988).Google Scholar Nevertheless, most scholars remain convinced that the thirteenth-century jury, and probably the fourteenth-century jury as well, remained heavily self-informing and only occasionally relied on in-court testimony by witnesses other than officials, such as reeves, coroners, and justices of the peace. See Thomas A. Green, “A Retrospective on the Criminal Trial Jury, 1200–1800,” in Twelve Good Men and True, 370–77; Langbein, John H., “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1168, 1170 n. 6CrossRefGoogle Scholar; Musson, Anthony, Public Order and Law Enforcement: The Local Administration of Criminal Justice, 1294–1350 (Woodbridge, Suffolk, UK: Boydell Press, 1996), 201, 22–21Google Scholar; Bellamy, J. G., The Criminal Trial in Later Medieval England: Felony before the Courts from Edward I to the Sixteenth Century (Toronto: University of Toronto Press, 1998), 98, 101–5.Google Scholar

9. Wormald, “Frederic William Maitland and the Earliest English Law,” 17. Maitland, however, thought that the system of compensatory payments survived until the twelfth century. Pollock and Maitland, History of English Law, 2:458.

10. Wormald, “Frederic William Maitland and the Earliest English Law,” 17–18.

11. Meekings, C. A. F., ed., “Introduction,” The 1235 Surrey Eyre (Castle Arch, Great Britain: Surrey Record Society, vol. 31, 1979), 1:106, 114Google Scholar; Hanawalt, Barbara A., Crime and Conflict in English Communities, 1300–1348 (Cambridge: Harvard University Press, 1979), 66.Google Scholar Presentment may have been used for other offenses at sheriff's tourn or view of frank-pledge.

12. Mayhem was the infliction of a disabling but nonlethal injury.

13. Green, Verdict According to Conscience, 108–13, and “A Retrospective on the Criminal Trial Jury, 1200–1800,” 367–75.

14. Bellamy, The Criminal Trial in Later Medieval England, 19–27. Bellamy suggests that the bill procedure started as early as the late thirteenth century.

15. Langbein, John H., “Understanding the Short History of Plea Bargaining,” Law and Society 13 (1979): 266–67CrossRefGoogle Scholar; Hay, Douglas, “Controlling the English Prosecutor,” Osgoode Hall Law Journal 21 (1983): 167–74.Google Scholar

16. Hunnisett, R. F., The Medieval Coroner (Cambridge: Cambridge University Press, 1961), 136.Google Scholar

17. Bellamy, The Criminal Trial in Later Medieval England, 26, 51 n. 40; Green, Verdict According to Conscience, 109–13; Langbein, John H., Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge: Harvard University Press, 1974), 6397.CrossRefGoogle Scholar

18. Hay, “Controlling the English Prosecutor,” 174–80; Devlin, Patrick, The Criminal Prosecution in England (New Haven: Yale University Press, 1960), 20.Google Scholar

19. Prosecution of Offenses Act, 1879, 42 & 43 Viet., c. 22; Kurland, Philip B. and Waters, D. W. M., “Public Prosecutions in England, 1854–79: An Essay in English Legislative History,” Duke Law Journal (1959): 493562.CrossRefGoogle Scholar

20. “Proposed Independent Prosecuting Service: The Prosecutor's Viewpoint,” Journal of Criminal Law 48 (1984): 302–3. The public prosecutors' power was somewhat increased by the Prosecution of Offenses Act, 1908, 8 Edw. 7, c. 3, but even so the power of public prosecutors remained small. Ibid.; Hay, “Controlling the English Prosecutor,” 179–80.

21. Prosecution of Offenses Act, 1985, c. 23, sec. 6(1); Samuels, Alec, “Non-Crown Prosecutions: Prosecutions by Non-Police Agencies and by Private Individuals,” Criminal Law Review (1986): 3336.Google Scholar

22. Friedman, Lawrence M., Crime and Punishment in American History (New York: Basic Books, 1993), 2930.Google Scholar

23. Rape was probably not presentable until the 1275 enactment of the first Statute of Westminster. See Post, J. B., “Ravishment of Women and the Statutes of Westminster,” in Legal Records and the Historian, ed. Baker, J. H. (London: Royal Historical Society, 1978), 154–55Google Scholar; Kelly, Henry Ansgar, “Statutes of Rapes and Alleged Ravishers of Wives: A Context for the Charges against Thomas Malory, Knight,” Viator 28 (1997): 364–66, 382–83, 387–88CrossRefGoogle Scholar; Groot, Roger D., “The Crime of Rape temp. Richard I and John,” Journal of Legal History 9 (1988): 325–26.CrossRefGoogle Scholar

24. But see Kittel, Ruth, “Rape in Thirteenth-Century England: A Study of the Common-Law Courts,” in Women and the Law: A Social Historical Perspective, ed. Kelly Weisberg, D. (Cambridge, Mass.: Schenkman, 1982) 2:102 n. 9.Google Scholar

25. Woodbine, George E., ed., Bracton on the Laws and Customs of England, trans. Thorne, Samuel. E. (Cambridge: Belknap Press of Harvard University Press, 1968), 2:394, fols. 139b–40.Google Scholar

26. In several northern and eastern counties, including Yorkshire, the court met every six weeks. Palmer, Robert C., The County Courts of Medieval England: 1150–1350 (Princeton: Princeton University Press, 1982), 4.Google Scholar

27. Daniel Klerman, “Female Private Prosecutors in Thirteenth-Century England” (unpublished manuscript).

28. Bracton, 2:353, fol. 125b. For a more thorough discussion of representation in appeals, see Klerman, “Female Private Prosecutors.“

29. Bracton, 2:354, fol. 125–125b.

30. Ibid., 2:354, 361–62, fols. 125b, 128b; Kaye, J. M., ed. and trans., Placito Corone or La Corone Pledee Devant Justices (London: Seiden Society, Seiden Society Supplementary Series, vol. 4, 1966), 25.Google Scholar Bracton argues that an outlaw could be killed only if he fled or resisted arrest, although he acknowledges contrary custom and authority. Bracton, 2:354, 362, 378, fols. 125b, 128b, 134.

31. In general, I use feminine pronouns for appellors and male pronouns for appellees. This helps to distinguish appellors and appellees and is historically plausible, because a substantial fraction of appellors were women. See above, 10.

32. Roger D. Groot, “The Early Thirteenth-Century Criminal Jury” in Twelve Good Men and True, ed. Cockburn and Green, 3–35.

33. Groot, “The Jury in Private Criminal Prosecutions before 1215,” 113–41. Medial verdicts could be procured by the writ de odio et aia, but the writ was not necessary. Ibid.

34. Kerr, Margaret H., Forsyth, Richard D., and Plyley, Michael L., “Cold Water and Hot Iron: Trial by Ordeal in England,” Journal of Interdisciplinary History 22 (1992): 578–79.CrossRefGoogle Scholar

35. Hyams, Paul, “The Strange Case of Thomas of Eldersfield,” History Today 36 (1986): 915.Google Scholar

36. The attentive reader will note that only 93 percent of appeals have been accounted for: 18 percent outlawed, 18 percent pled by the plaintiff, 57 percent nonprosecuted or retracted. In the remaining 7 percent, either the prosecutor died or the case assumed an unusual procedural posture that cannot be simply classified. Here and elsewhere I group non-prosecuted and retracted appeals together. See below, 17 n. 50, 39, 51, 52.

37. In addition to formally acquitting the defendant, the judges could let the defendant go “without day” (sine die) or without any judgment at all. While not technically acquittals, such judgments (or nonjudgments) effectively freed the defendant. In general I treat them as equivalent to acquittals, because I have seen no cases in which a defendant so released was subsequently reprosecuted by appeal or otherwise punished.

38. Ordinarily, appellors had to find people willing to assure that the appellor would prosecute the case and pay fines if she did not. When the appellor was poor, that requirement was waived and a simple oath to prosecute was deemed sufficient.

39. Collections for a History of Staffordshire, ed. Wrottesley, W. (London: The William Salt Archaeological Society, vol. 3, 1882), 41.Google Scholar Translation by the author.

40. John probably asked Ivo and the others for a pledge that they would show up at court, if sued for fishing without permission.

41. The tithing probably secured his release, pending trial, upon a promise that they would ensure his presence at trial. Every adult male was required to be in a tithing, a group whose most important function was producing its members' attendance in court when necessary.

42. JUST 1/4, m. 30. All citations to manuscript sources refer to documents in the Public Record Office, Kew, England.

43. JUST 1/359, m. 35d.

44. See, e.g., Stenton, Doris Mary, ed., Pleas before the King or His Justices, 198–1212 (London: Seiden Society, vol. 83, 1967), 3: pl. 746Google Scholar (Shropshire 1203) (10 marks to settle mayhem appeal); Harding, Alan, ed., The Roll of the Shropshire Eyre of 1256 (London: Seiden Society, vol. 96, 1981), pl. 577Google Scholar (40 shillings to settle false imprisonment and robbery appeal).

45. See, e.g., Stenton, Doris Mary, ed., Rolls of the Justices in Eyre Being Rolls of Pleas and Assizes for Yorkshire in 3 Henry III (1218–19) (London: Seiden Society, vol. 56, 1937), pls. 959, 1086.Google Scholar

46. For an example of a rape appeal following consensual sex, see ibid., pl. 669 (the jurors say that “he had her with her good will for a year and that he took another to wife and for this reason she has appealed him”). For a more thorough discussion of settlement by marriage, see Daniel Klerman, “Female Private Prosecutors.”

47. Stenton, Pleas before the King or His Justices, 1198–1212, 3: pls. 671, 746 (Shropshire 1203).

48. CP 25(l)/212/6 no. 39.1 am grateful to Paul Brand for finding this final concord and sharing his notes on it with me.

49. Of the 1249 cases in the data set described in Section 2. A, information on settlement is recorded for 308 or 25 percent. Of these, 207 (67 percent) settled. So at least 17 percent (207/1249) of all appeals settled.

50. There were 677 nonprosecuted cases in the data set described in Section 2.A. If two thirds of the nonprosecuted cases settled, there would be 452 settled cases, which is 36 percent (452/1249) of all appeals. Here, as elsewhere, the count of nonprosecuted appeals include retracted ones. See above, 12 n. 36, below, 39, 51, 52. Settled cases that cannot be classified as nonprosecuted include cases that the appellor prosecuted in the eyre in spite of settlement and cases in which the appellor died after having settled but before trial in the eyre.

51. For a more thorough analysis of which cases settled and why, see Daniel Klerman, “The Selection of Thirteenth-Century Criminal Disputes for Litigation” (unpublished manuscript).

52. When the parties received a “license to concord” (judicial permission to settle), which was rare, judges would quash later prosecutions. See Stenton, Pleas before the King or His Justices, 1198–1212, 3: pl. 746 (Shropshire 1203). Informal settlements would appear on the records as nonprosecuted or retracted appeals. The fact of a prior nonprosecuted or retracted appeal was sometimes raised as a defense to a subsequent prosecution, and that defense seems to have been accepted. Ibid., pl. 726; Herbert Fowler, G., ed., “Roll of the Justices in Eyre at Bedford, 1227,” in Publications of the Bedfordshire Historical Record Society (Bedfordshire Historical Record Society, vol. 3, 1916), 1: pl. 397.Google Scholar Nevertheless, these cases do not prove the enforceability of out-of-court settlements, because they involve an appellor who brought a second appeal, rather than an appellor who decided simply to continue her original appeal. The former situation presented the judge with additional reasons to protect the appellee, because the second appeal was brought too late (not at the first county court) and because the judgment on the first appeal was seen as barring subsequent appeals, not unlike modern res judicata.

53. See JUST 1/1043, m. 4d (Yorkshire 1231) (appellor's brother was present at making of settlement); Stenton, Pleas before the King or His Justices, 1198–1212, 3: pl. 690 (Shropshire 1203) (compensation determined “by the view and judgment of lawful men”).

54. Stenton, Pleas before the King or His Justices, 1198–1212, 3: pl. 743.

55. Meekings, C. A. F., ed., Crown Pleas of the Wiltshire Eyre, 1249 (Devizes: Wiltshire Archaeological and Natural History Society, Records Branch, vol. 16, 1961), pls. 4445.Google Scholar

56. JUST 1/536, m. 8 (Middlesex 1235).

57. JUST 1/565, m. 21 (Norfolk 1250).

58. See S. Milsom, F. C., The Legal Framework of English Feudalism: The Maitland Lectures Given in 1972 (Cambridge: Cambridge University Press, 1976), 168CrossRefGoogle Scholar (observing that “in many early appeals” the appellee was “a lord enforcing his rights”).

59. See, e.g., Meekings, Crown Pleas of the Wiltshire Eyre, 1249, pl. 169; Harding, The Roll of the Shropshire Eyre of 1256, pl. 747.

60. On distraint, see Baker, An Introduction to English Legal History, 271–72.

61. JUST 1/361, m. 60d (Kent 1255).

62. JUST 1/4, m. 34 (Bedfordshire 1247).

63. Maitland, Frederic William, The Forms of Action at Common Law: A Course of Lectures, ed. Chaytor, A. H. and Whittaker, W. J. (Cambridge: Cambridge University Press, 1936; first published with Maitland, Equity, 1909; published separately, 1936), 4849.Google Scholar See also Pollock and Maitland, A History of English Law, 2:485 (“[t]o the end of our period [1307] an appeal rather than an indictment is the normal procedure against criminals”).

64. Holdsworth, A History of English Law, 2:257 (in the thirteenth century, the appeal was “gradually decaying as a mode of criminal prosecution”); Hunnisett, The Medieval Coroner, 55 (“during the thirteenth century the number of appeals rapidly declined”); Meekings, Crown Pleas of the Wiltshire Eyre, 1249, 35 (“The ordinary appeal was declining in importance throughout the latter half of the thirteenth century”); Ernst, “The Moribund Appeal of Death,” 164, 165 (opining decline 1215–1500). See also sources in notes 79–80 below. Baker, Milsom, and Plucknett pass over in silence the issue of when the appeal declined. Baker, Introduction to English Legal History, 574–76; Plucknett, A Concise History of the Common Law, 428; Milsom, Historical Foundations of the Common Law, 406–10.

65. The sources used for Ulis database are listed in Appendix F. The reliability of these records is discussed in Appendix G. The data set itself can be downloaded from the Inter-university Consortium for Political and Social Research (ICPSR) website <www.icpsr.umich.edu> or the University of Southern California Center for Law, Economics, and Organization (USC CLEO) website <www.usc.edu/dept/law/centers>.

66. Crook, David, “The Later Eyres,” English Historical Review 97 (1982): 241–68.CrossRefGoogle Scholar

67. Although post-1263 Bedfordshire records were examined, the 1276–77 Bedfordshire eyre was excluded, because it followed the 1272 eyre, which was abandoned on Henry Ill's death. See Crook, David, Records of the General Eyre, Public Record Office Handbooks no. 20 (London: Her Majesty's Stationery Office, 1982), 134.Google Scholar As a result, it is unclear whether cases arising between 1262 and 1272 were consistently reported in the 1276–77 eyre.

68. Although appeals from only eighteen of thirty-four Shropshire districts and eleven of thirty-six Staffordshire districts were included in Table 2, the excluded districts generally reported very few or no appeals when they did report. As a result, Table 2 is nearly complete for these counties. Table 12 reports on most of the excluded districts. The vast majority of the others returned no appeals at each eyre at which they reported.

69. Clanchy, M. T., From Memory to Written Record: England 1066–1307, 2d ed. (Oxford: Blackwell Publishers, 1993), 71.Google Scholar

70. For an introduction to regression analysis, see Moore, David S. and McCabe, George P., Introduction to the Practice of Statistics (New York: W. H. Freeman, 1989)Google Scholar, chap. 10.

71. If one excludes Kent, the coefficient for 1226–29 drops to 0.42 and the p-value drops to 0.000.

72. It is possible that the introduction of rape presentments (1275 Statute of Westminster I) contributed to the post-1275 decline in rape appeals. The provision in Westminster II (1285) for trespass writs for rape/ravishment almost certainly had no effect on rape appeals during the period studied, because they were ordinarily used to punish “ravishment of wife,” rather than rape of an unmarried women (as was typical in appeals). In addition, such trespass writs did not become common until the turn of the fourteenth century. See Post, J. B., “Ravishment of Women and the Statutes of Westminster,” in Legal Records and the Historian, ed. Baker, J. H. (London: Royal Historical Society, 1978), 159.Google Scholar

73. For a more thorough discussion of the issues discussed in this section, see chapter 3 of my dissertation: Klerman, Daniel, Private Prosecution of Crime in Thirteenth-Century England (Ann Arbor, Mich.: UMI Dissertation Services, 1998).Google Scholar

74. Although these were the principal places other than the eyre where appeals could be tried, appeals were sometimes heard elsewhere. Theft appeals could be heard in nonroyal courts that had the franchise of infangthief. In addition, in the late thirteenth century, commissions were sometimes issued to a particular group of justices to hear and determine a particular appeal. Perusal of the Calendars of Patent Rolls revealed no such commissions in 1245 or 1246, three in 1275, sixteen in 1280, and thirty-three in 1285. Thus, although the number of such commissions was increasing, even in 1285 they averaged less than one per county per year. In addition, the increase came too late to explain the decline of the appeal, which started no later than the 1250s. For appeals not heard in eyre, see also JUST 1/1179, m. 4 (appeal heard at 1252 assize at Greenwich, Kent); JUST 1/13, mm. 19, 21d (two appeals heard before justices with oyer and terminer commissions).

75. Stenton, Doris Mary, ed., The Earliest Northamptonshire Assize Rolls: A.D. 1202 and 1203 (London: Northamptonshire Record Society, 1930), 5:99131, 153–63Google Scholar (Northamptonshire, two sessions in autumn and summer 1203, three appeals total, which is three per year); ibid., 131–53 (Suffolk 1203, two sessions at St. Edmunds and Ipswich, two appeals total, which is two per year); Stenton, Doris Mary, ed., The Earliest Lincolnshire Assize Rolls, A.D. 1202–1209 (Lincoln: Lincoln Record Society, vol. 22, 1926), 266–71Google Scholar (Lincolnshire 1206, five appeals, which is two and a half per year). To calculate these rates, the number of appeals recorded in the gaol delivery rolls was divided by the time between the gaol delivery and the previous time the pipe rolls record that royal justices had heard criminal cases in the county. Other gaol delivery records from the early thirteenth century indicate similar or smaller numbers of appeals. Stenton, Doris Mary, ed., Pleas before the King or His Justices, 1198–1202 (London: Seiden Society, vol. 68, 1952), 2:176–78Google Scholar (Cornwall 1201, two appeals); Curia Regis Rolls (London: Her Majesty's Stationery Office, 1952), 9:198–201 (Herefordshire 1220, two appeals); ibid., 11:118 (Oxfordshire 1223, no appeals); ibid., 381 (Herefordshire 1224, two appeals); ibid., 382–83 (Worcestershire 1224, no appeals); JUST 1/36, mm. 2d–7 (Berkshire 1225, one appeal); Chadwyck-Healey, C. E. H., ed., Somersetshire Pleas (Civil and Criminal) from the Rolls of the Itinerant Justices (London: Somerset Record Society, vol. 11, 1897), 1:2885 (Somerset 1225, four appeals)Google Scholar; JUST 1/863, mm. 3d–4d (Surrey 1225, three appeals); JUST 1/1172, m. 5 (Shropshire 1226, one appeal); JUST 1/801, m. 10 (Staffordshire 1227, no appeals). It is important to note the small number of appeals heard in the 1225 sessions. In that year, most English counties were visited by royal judges who heard assizes and delivered jails. If they heard all of the appeals pending in the county, however, that could significantly undermine the figures presented in Section 2.B for the 1226–29 eyres, because I assumed that the 1226–29 eyres heard appeals initiated since the 1218–22 eyres. The small number of appeals heard in the 1225 sessions argues strongly that they did not hear all appeals that had arisen since the 1218–22 eyres. Thus, the figures presented in Section 2.B are substantially accurate. This conclusion is reinforced by the fact that, even though royal justices did not visit Staffordshire in their 1225 sessions (see C. A. F. Meekings, “Introduction,” Curia Regis Rolls, 12:xi), the 1227 Staffordshire eyre reveals a substantially reduced rate of appeal.

76. Pugh, Ralph B., ed., Wiltshire Gaol Delivery and Trailbaston Trials, 1275–1306 (Devizes: Wiltshire Record Society, vol. 33, 1978), 3458Google Scholar (Wiltshire 1275–80, eleven appeals, which is two per year); JUST 3/18/1, mm. 6–9, 10–15 and JUST 3/18/2 (Essex 1280–85, six appeals, which is one per year); JUST 1/1177A, m. 4d and JUST 1/1179, mm. 14, 19, 25d (Suffolk 1250, 1254, 1258, 1259, two appeals, which is one per year if one assumes each gaol delivery heard appeals from the prior six months); JUST 1/1179, mm. 25, 25d (Norfolk 1259, no appeals).

77. Pollock and Maitland, The History of English Law, 1:199; Baker, An Introduction to English Legal History, 45.

78. Curia Regis Rolls, vols. 1, 2, 12, 16, 17 (Bench and corani rege 1201, 1225, 1242); KB 26/168 (Michaelmas 1260 corani rege); KB 26/169 (Michaelmas 1260 Bench); Pollock and Maitland, The History of English Law, 2:565, 567 (analysis of Easter 1271 Bench); Phillimore, W. P. W., ed., Placito Corani Domino Rege…. The Pleas of the Court of King's Bench, Trinity Term, 25 Edward I, 1297 (London: British Record Society, 1898).Google Scholar Since there was no reason to think that the Bench and court corani rege heard significant numbers of appeals, I examined only a small fraction of the surviving records. These records examined were chosen because they were approximately twenty years apart, and the surviving records were reasonably ample.

79. Powell, Edward, Kingship, Law, and Society: Criminal Justice in the Reign of Henry V (Oxford: Clarendon Press, 1989), 71.Google Scholar

80. Whittick, “The Role of the Criminal Appeal in the Fifteenth Century,” 56; Bellamy, The Criminal Trial in Later Medieval England, 36.

81. Whittick, “The Role of the Criminal Appeal in the Fifteenth Century,” 55.

82. For example, Baker devotes two pages of his introductory text to the appeal, but provides no explanation for its decline. Baker, Introduction to English Legal History, 574–76.

83. Holdsworth, A History of English Law, 2:360; Hunnisett, The Medieval Coroner, 55.

84. As discussed below, 38–40, during certain periods nonprosecuted appeals were sent to jury trial. A similar policy was introduced for quashed appeals temporarily and tentatively in the 1218–22 eyres and then permanently in the 1231–33 eyres. Before the 1231–33 eyres, nearly all quashed appeals (95 percent in my data set) resulted in the acquittal of the defendant. Starting in the 1231–33 eyres, nearly all quashed appeals (98 percent in my data set) resulted in trial on the king's suit. Kerr, who analyzed all surviving pre-1222 appeals, found that in the 1218–22 eyres, 45 percent (10/22) of quashed appeals were sent to jury trial. Kerr, Margaret H., “Angevin Reform of the Appeal of Felony,” Law and History Review 13 (1995): 388.CrossRefGoogle Scholar See also Bracton, 2:402, fol. 142b; Britton, ed. and trans., Nichols, Francis Morgan (1865; reprint, Holmes Beach, Fla: William W. Gaunt and Sons, 1983), 1:1034.Google Scholar

85. For a discussion of trends in rape appeals, see Section 2.D. For a discussion of the Statute of Westminster II and trespass actions for rape, see Post, “Ravishment of Women,” 158–59. In addition, such trespass actions were ordinarily brought for the ravishment of wives, not the rape of unmarried women (ibid.), while appeals of trespass almost always concerned unmarried women.

86. Baker, An Introduction to English Legal History, 575; Groot, “The Jury in Private Criminal Prosecutions before 1215,” 132–33; Stenton, “Introduction,” The Earliest Lincolnshire Assize Rolls, lxi.

87. Some remedies were available in local courts. Plaints might also be used to get redress, but they were uncommon. Those who had influence with the king might pursue exceptional remedies. In the mid-thirteenth century, trespass began to provide money damages for personal injury and property damage. See below, 44.

88. On rare occasions, judges would order the appellee to pay compensation. See, e.g., JUST 1/359, m. 30 (Kent 1241); JUST 1/614B, m. 47d (Northamptonshire 1247).

89. See above, 6, 14.

90. Klerman, “The Selection of Thirteenth-Century Criminal Disputes for Litigation.”

91. Roger Groot similarly argued that public prosecution of concorded appeals would discourage settlement. See Groot, “The Jury in Private Criminal Prosecutions before 1215,” 133.

92. This change has been noticed by several previous scholars. Groot, “The Early Thirteenth-Century Criminal Jury,” 12–13, 21–22; Kerr, “Angevin Reform of the Appeal of Felony,” 369–73 (examining all 1218–22 eyres and finding 50 percent of nonprosecuted and retracted appeals sent to jury trial).

93. This graph, like Figure 1, plots a steady rate from 1194 to 1209, even though the coefficients for 1194–95 and 1198–99 are less than one. As explained above, 28, the figures for these years almost certainly underreport the true rate, and the graph has been adjusted to take this into account.

94. In a regression similar to that described in the note to Table 4 above, except that alog(lagged respect for settlement) was substituted for the eyre date effects, the coefficient a was positive (0.36), and its p-value was highly statistically significant (0.000).

95. See Meekings, “Introduction,” Crown Pleas of the Wiltshire Eyre, 1249, 4 (disruption of eyres); Holt, James Clarke, Magna Carta, 2d ed. (Cambridge: Cambridge University Press, 1992), 325CrossRefGoogle Scholar, n. 135 (sheriffs heard criminal cases normally heard in eyre). The fact that assault shows one of the more dramatic drops (79 percent lower than 1201–03) while homicide is almost stable (only 16 percent lower than 1201–03) might imply that litigants brought their cases elsewhere during this turbulent period. Litigants often had a choice of fora for assault cases (including county and manorial courts), whereas the royal monopoly on homicide cases was relatively strict.

96. All major twelfth and thirteenth-century treatises discuss settlement policy, but none note that the policy changed, much less explain why. Downer, L. J., ed. and trans., Leges Henrici Primi (Oxford: Clarendon Press, 1972)Google Scholar, sec. 59, 27; Hall, G. D. C., ed. and trans., The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill (London: Thomas Nelson and Sons, 1965), 21Google Scholar; Bracton, 2:402, fol. 142b; Placita Corone, 9; Britton, 1:103–4. For analysis of these sources, see Klerman, Daniel, Private Prosecution of Crime in Thirteenth-Century England (Ann Arbor, Mich.: UMI Dissertation Services, 1998), 8697.Google Scholar

97. Glanvill, 21; Bracton, 2:402, fol. 142b; See also Leges Henrici Primi, sec. 59, 27 (forbidding settlement without judicial consent).

98. Baldwin, John W., “The Intellectual Preparation for the Canon of 1215 against Ordeals,” Speculum 36 (1961): 615–36.CrossRefGoogle Scholar See also Stenton, “Introduction,” The Earliest Lincolnshire Assize Rolls, lx (seeing judicial hostility to ordeals in early thirteenth-century cases).

99. Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford: Clarendon Press, 1986), 8290.Google Scholar

100. Stenton, Doris Mary, ed., Pleas before the King or His Justices, 1198–1202 (London: Seiden Society, vol. 68, 1952), 2:9Google Scholar, pl. 44 (Norfolk 1198).

101. Groot, “The Early Thirteenth-Century Criminal Jury,” 3.

102. On judicial concern that crime not go unpunished, see Bracton, 2:402, fol. 142b. See also Britton, 1:103–4 (prosecution at king's suit, because nonprosecuted appellee might be guilty).

103. Harding, “Introduction,” The Roll of the Shropshire Eyre of 1256, xxxvi; Hall, G. D. G., “Some Early Writs of ‘Trespass,’Law Quarterly Review 73 (1957): 6566.Google Scholar

104. The early history of trespass remains unclear. Most historians agree that the first trespass writs were issued in the 1220s. Milsom, S. F. C., “Trespass from Henry III to Edward III,” Law Quarterly Review 74 (1958): 201Google Scholar; Harding, “Introduction,” The Roll of the Shropshire Eyre of 1256, xxxv–vi. Trespass cases became common in the plea rolls of the Westminster courts in the mid-1230s, although many of these cases may have been initiated by plaint rather than writ. Sayles, G. O., ed., “Introduction,” Select Cases in the Court of King's Bench under Edward II (London: Seiden Society, vol. 74, 1957), 4:xxxvi-vii.Google Scholar Trespass cases from the 1230s and early 1240s are sometimes difficult to distinguish from appeals, but generally differ in that (a) plaintiffs do not allege, and defendants do not deny “felony,” (b) the plaintiff puts a monetary value on the harm with a phrase such as “whence he is injured in the amount of 100 s.,” thus implicitly asking for damages, (c) neither plaintiff nor defendant suggests trial by battle, (d) the rolls sometimes mention that the plaintiff produced suit witnesses (producit sectam), and (e) the formalities of appeals, such as suit in county court, are not required. See Curia Regis Rolls, vol. 15, cases 867 and 960; vol. 16, cases 143 and 1195. Contrast these cases to appeals, such as Curia Regis Rolls, vol. 15, cases 1128 and 1304; vol. 16, cases 1272 and 1744.

105. Baker, An Introduction to English Legal History, 575.

106. The 100 percent figure for 1239–14 can be ignored. It is based on only a single appeal.

107. In no pre-1218 case in the data set, however, did the judges actually send a nonprosecuted homicide appellee to the ordeal, because the presenting jury always gave a medial verdict of nonsuspicion. Nevertheless, the judges were presumably prepared to send such appellees to ordeal if the presenting jury did suspect them. They did send one theft appellee to the ordeal. See above, 43, n. 100.

108. D. 90 c. 1, 7.

109. d. p. C. 2 q. 3 c. 8.

110. John the Deacon, Sancti Gregorii Magni Vita, in Migne, J.-P., ed., Patrologiae cursus completus: Series Latina (Paris: Gamier Fratres, 1902), 75:195.Google Scholar

111. For their absence from the collections compiled by Burchard of Worms and Ivo of Chartres, see Friedberg, Aemilius, ed., Quinque Compilationes Antiquae (1882; reprint Graz: Akademische Druck- und Verlagsanstalt, 1956), xxi.Google Scholar

112. Mansi, Joannes Dominicus, ed., Sacrorum Conciliorum (Venice, 1778), 417–18Google Scholar (Appendix Concila Lateranensis c. 2); 1 Com. 5.18.1 and 2; Friedberg, Emil, Die Canones-Sammlungen zwischen Gratian und Bernhard von Pavia (1897; reprint, Graz: Akademische Druckund Verlagsanstalt, 1958), 187Google Scholar (table showing canonical collections including the two relevant decretals, 1 Com. 5.18.1 and 2). These texts were also included in Gregory IX's thirteenth-century collection. X.5.22.1 and 2.

113. 1 Com. 5.18.1 and 2.

114. Duggan, Charles, Twelfth-Century Decretal Collections and Their Importance in English History (London: Athlone Press, 1963), 53, 66–117, 135–39Google Scholar; Kuttner, Stephan and Rathbone, Eleanor, “Anglo-Norman Canonists of the Twelfth Century, An Introductory Study,” Traditio 7 (19491951): 280–84.Google Scholar

115. Kuttner and Rathbone, “Anglo-Norman Canonists of the Twelfth Century,” 279; Turner, Ralph V., The English Judiciary in the Age of Glanvill and Bracton, c. 1176–1239 (Cambridge: Cambridge University Press, 1985), 3637, 226.CrossRefGoogle Scholar

116. Turner, The English Judiciary, 95–96.

117. Ibid., 97–98.

118. Those likely to have learned canon law include Master Jocelin, archdeacon of Chichester, Richard fitz Neal, Godfrey de Lucy, Master Eustace of Fauconberg, and Master Godfrey de Insula. Ibid., 37–38, 95–99, 144, 150–51, 226, 232, 236.

119. Ibid., 98. In the 1194–95 eyres, two of the judges were archdeacons, and four were bishops or archbishops. Two archdeacons and a bishop served as judges in the 1198–99 eyres. Six bishops but only one archdeacon served in the 1201–3, 1208–9, or 1218–22 eyres. Crook, Records of the General Eyre, 56, 57, 58, 59, 61, 62, 64, 69, 72, 73, 74, 75.

120. Bracton, 2:402, n. 3, fol. 142b; Kerr, “Angevin Reform of the Appeal of Felony,” 369, n. 52.

121. Meekings, The 1235 Surrey Eyre, 1:21, 97; Duffus, Thomas Hardy, ed., Rotuli Litterarum Clausarum (London: G. Eyre and A. Spottiswoode, 1833), 1:403Google Scholar; Bracton, 2:405, fol. 143b; Britton, 1:19; Hyaras, Paul R., “What Did Edwardian Villagers Understand by Law,” in Medieval Society and the Manor Court, ed. Razi, Zvi and Smith, Richard (Oxford: Clarendon Press, 1996), 7677.Google Scholar

122. For a discussion of representation in appeals, see Daniel Klerman, “Female Private Prosecutors.”

123. Groot, “The Jury in Private Criminal Prosecutions before 1215,” 135–36.

124. Smith, Carrie, “Medieval Coroners' Rolls: Legal Fiction or Historical Fact?” in Courts, Counties, and the Capital in the Later Middle Ages, ed. Dunn, Diana E. S. (New York: St. Martin's Press, 1996), 96101.Google Scholar

125. Given, James Buchanan, Society and Homicide in Thirteenth-Century England (Stanford: Stanford University Press, 1977), 36.Google Scholar

126. In a regression similar to that described in note 94 above, except that βlog (homicide rate) was substituted for alog (lagged respect for settlement), the coefficient β was negative (-0.26), and its p-value was not statistically significant (0.319). In a regression with both αlog (lagged respect for settlement) and βlog (homicide rate), a remains positive and actually increases in magnitude (from 0.36 to 0.48) and remains highly statistically significant (p-value of 0.005), while β becomes indistinguishable from zero (–0.01, p-value of 0.981). Similar results obtain when the number of homicide appeals is substituted for the number of all appeals as the dependent variable and when the respect for settlement in homicide cases is substituted for respect for settlement in all cases as an explanatory variable.

127. Donohue, John J., “Understanding the Time Path of Crime,” Journal of Criminal Law and Criminology 88 (1998): 1425–26.CrossRefGoogle Scholar

128. Using data from Hanawalt, Crime and Conflict in English Communities, 237, 241 (tables 9 and 10), I calculated correlation coefficients between homicide and other crimes for the period 1300–48. The correlation between homicide and other crimes is uniformly positive and moderately strong. The coefficients are: 0.55 for larceny, 0.40 for burglary, 0.34 for robbery, 0.19 for receiving, and 0.30 for arson. Of course, these figures measure the correlation between indictments for, rather than incidence of, various crimes. Unfortunately, Hanawalt's data set did not include enough assaults and rapes to permit statistical analysis.

129. Presentment of rape was probably not even possible until the 1275 enactment of the first Statute of Westminster. See above, 9, n. 23.

130. Approver appeals of theft were relatively common, but, as noted above, 4, they are excluded from this analysis.

131. For the reason, see above, 21 n. 67.

132. In the printed edition, the presentments for this district are incorrectly recorded as being made by the hundred of Mawesley.

133. Although the rubric for the cases numbered 77–85 in the printed edition is damaged beyond recognition, it is nearly certain that these cases were presented by Chipping Warden. Case 77 records a killing by unknown persons at Eydon. Such presentments were nearly always made by the district where the killing took place. Since Eydon is in Chipping Warden, Chipping Warden was almost certainly the presenting district. The fact that other place names mentioned in cases 77–85 are nearly all from or near Chipping Warden supports this conclusion.

134. There is no rubric for Pickering wapentake in the 1208 Yorkshire eyre. Nevertheless, it is evident that cases 3475–3483 in the printed edition are the Pickering wapentake presentments. The rubric for these cases is no longer visible, because the top of the relevant membrane has been damaged. Nevertheless, two pieces of evidence conclusively establish these cases as being from Pickering wapentake. First, case 3484 is the presentment of Pickering vili. In every other surviving eyre, the presentments of Pickering vili follow immediately after the presentments of Pickering wapentake. Second, nearly all the place names mentioned in cases 3475–3483 are from or near Pickering wapentake.

135. For a more thorough discussion of the issues discussed in this section, see chapter 3 of my dissertation, Klerman, Private Prosecution of Crime in Thirteenth-Century England.

136. The ordinary procedure is described in Section I.C. Some appeals, however, were initiated by writ and would not appear on coroners' rolls. Appeals initiated by writ would most likely have been heard in the Bench or coram rege, although some were heard in the eyre. Some appeals were initiated by plaint or bill.

137. Crook, Records of the General Eyre, 36–37.

138. Hunnisett, R. F., “An Early Coroner's Roll,” Bulletin of the Institute of Historical Research 30 (1957): 225–31CrossRefGoogle Scholar (1229 Devon coroners' roll, containing one appeal, which also appears in the 1238 eyre roll); JUST 2/261 (1268–71 Oxfordshire coroners' roll, containing one appeal, which also appears in the 1285 Oxfordshire eyre roll, JUST 1/710); Hunnisett, R. F., ed., Bedfordshire Coroners' Rolls (Bedfordshire Historical Record Society, vol. 41, 1961)Google Scholar (1268–71 Bedfordshire coroners' rolls, containing eighteen appeals, of which nine appear in the 1276 eyre roll and one appears in the 1272 eyre roll, JUST 1/7, m. 39); JUST 2/263, 2/264, 2/266, 2/277 (1269–85 Norfolk coroners' rolls, containing two appeals, of which both appear in the 1286 Norfolk eyre roll, JUST 1/579); JUST 2/262, 2/278 (1272–74 Hampshire coroners'rolls containing five appeals, of which three appear in the 1280–81 Hampshire eyre roll, JUST 1/789); JUST 2/260 (1285–86 Hertfordshire coroners' roll, containing four appeals, of which two appear in the 1287 Hertfordshire eyre roll, JUST 1/328).

139. See, e.g., Stenton, Doris Mary, ed., Pleas before the King or His Justices, 1198–1212 (London: Seiden Society, vol. 84, 1967), 4: pl. 3509Google Scholar (Yorkshire 1208 eyre roll mentions appeal of robbery removed to Westminster); Meekings, Crown Pleas of the Wiltshire Eyre, 1249, 211 (mentioning appeal of homicide that resulted in hanging at gaol delivery).

140. Hunnisett, Bedfordshire Coroners' Rolls, pls. 69, 129.

141. Appeals that resulted in conviction or outlawry would produce forfeited chattels, if the appellee had any. Appeals that resulted in acquittal would produce amercement (fining) of appellors, as would nonprosecuted or quashed appeals. If the appellee did not show up, his sureties would be amerced. The only circumstances that would result in no revenue would be conviction of a chattel-less appellee, appeal of a cleric who claimed privilege, an appeal in which the appellee died before trial, or cases in which amercements were forgiven. Such cases surely occurred, but it is hard to believe that they account for all the unrecorded appeals. In addition, such appeals were often recorded. See Harding, The Roll of the Shropshire Eyre of 1256, pl. 792 (defendant acquitted, appellor's fine pardoned on account of poverty); Stenton, Pleas before the King or His Justices, 1198–1212, 4: pl. 3500 (1208 Yorkshire, appellee dead); Three Rolls of the King's Court in the Reign of King Richard the First, A. D. 1194–1195 (London; Pipe Roll Society, vol. 14, 1891), 147 (Buckinghamshire 1195, appellee dead). In addition, the way the plea rolls were put together would have made it difficult to exclude nonrevenue producing cases. It appears that the clerks wrote the first few lines of each enrollment by examining the coroners' rolls and jurors' written veredicta and then filled in the rest later when the jurors presented the cases orally and responded to the judges' questions. Thus, at the time the enrollments were started, the clerk would not have known whether the case would produce revenue. Since many cases were enrolled on a single piece of parchment, those not producing revenue could not have been excluded after the cases were heard.

142. This argument for the completeness of the eyre rolls does not apply to the 1194–95 and 1198–99 eyres. As discussed above, 26, the system of checking jurors' answers against coroners' rolls does not yet seem to have been used during these eyres.

33
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