by Ian Mortimer
If a crime is discovered, the person making the discovery is expected to raise the alarm: the “hue and cry” as it is called. The actual sound varies from place to place, but it is a distinctive, alarming noise, and from it people can tell whether it relates to the finding of a dead body or evidence of a burglary3 All those in the vicinity—not just the members of that particular tithing—are expected to come in from the fields or get up from their beds to view the scene of the crime and to pursue the criminal. If he is caught, he is handed over to the constable of the township. Whether or not he is apprehended, the crime is reported at the next hundred court. As a result of the news being circulated at this assembly, all the nearby tithings are informed of the crime and made aware that there is a likelihood that a criminal is hiding out in their locality. The sheriff or his deputy (the under-sheriff) may be informed straightaway if the crime is deemed serious enough
Units of Secular Administration
Unit of Administration
Chief Law-Enforcement Officer
Description
County
The Sheriff
The largest unit of administration. There are thirtynine ancient counties in England, ranging in size from Rutland (142 square miles) to Yorkshire (5,961 square miles). In addition, there are four “county boroughs,” which are administered like counties: London (except it has two sheriffs, not one), Bristol (a county from 1373), York (from 1396), and Newcastle (from 1400).
Hundred
Bailiff of the hundred
Called “wapentake” in the north. A subdivision of a county, containing a number of townships. There are 628 hundreds in total, 270 of which are in the king’s lordship. Devon, a large county, has thirty-five. A smaller county like Bedfordshire has nine. Huntingdonshire has four. Rutland has five (one of them being called a “soke”). The bailiff of a royal hundred answers to the sheriff of the county. Bailiffs of private hundreds normally answer to their lord.
Township
Constable
A subdivision of a hundred, often coterminous with a manor or a series of adjacent manors, containing a number of tithings. The constable reports the crimes within the township to the hundred bailiff at the hundred court.
Incorporated borough
Mayor and bailiffs
Deals with bylaws and infringements of the common law according to the rights established in its royal charter.
Manor or seigneurial borough
Steward of the lord and the bailiff or reeve
The manor is a unit of land tenure rather than law enforcement. However, manorial courts do deal with local customs, disputes between customary tenants, and infringements of the lord’s rights. Some incorporate courts leet, which also deal with criminal cases.
Tithing
Chief tithing-man or capital pledge
The smallest unit of law enforcement. A group of about ten male villeins who live close to one another within a manor, all of whom are responsible for one another’s good behavior. The chief tithing-man answers to the manorial court and liaises with the constable of the township.
to warrant calling out the posse comitatus: a group of armed men who will pursue the criminal until he is caught. In such cases, a criminal evading arrest may be beheaded on sight—provided the coroner is present and provided the wanted man has not reached the sanctuary of a church. Alternatively, if the thief apprehended is a woman, she may be taken to a river and forcibly drowned for resisting arrest. This ancient system of law and order is codified at the end of the thirteenth century by Edward I in various statutes, most notably in the Statute of Winchester (1285). This stipulates that, if a robbery is committed, the criminal must be pursued from town to town. It also orders that city and town gates are closed at sundown and opened again at sunrise, and that there are to be watches in every settlement. The number of men who must keep watch in each place varies: there must be six watchmen for every gate in a city, twelve watchmen in every other borough, and either six or four men to watch in every town (according to its population). London, a special case, has six watchmen in each of its twenty-five wards and a further six on each gate: nearly two hundred watchmen. Every stranger who lodges in a region becomes the responsibility of his host. Every person found out of doors at night is liable to be arrested. The intention is that every effort is made by members of a community to keep the king’s peace.
THE SHERIFF AND THE COUNTY COURT
The sheriff is the king’s chief officer in a county. He receives the king’s writs—about 120 of them every month in an average-size county—and carries out the king’s orders. These might be to summon a jury to try a particular case or to arrest someone. They might require him to send an indicted man or woman to the royal courts, or to make an inquiry into damage and report back to the king, or to hold an election to send two representatives to Parliament. In times of war the sheriff might be ordered to gather men to fight in Scotland or France. The sheriff is also expected to make arrangements to feed such fighting men—not an easy business when he is ordered to gather two thousand archers. He thus has heavy financial responsibilities and has to account for them at the Exchequer. He is also expected to maintain the country gaol and to build wooden cages in the castle yard when the prisons are full.
As you can see, a huge amount of power is vested in the sheriff. He may arrest you, imprison you, and send you in chains to London. Few people will be able to stop him if he chooses to extort money from you or decides to torture you. Ironically, the one thing he cannot do is try you for a serious crime. Apart from matters of small consequence, such as debts or brawling, the only time a sheriff can legally act as a judge himself is when he catches someone trying to evade the law—for instance a man who tries to escape from gaol (whom he may behead), or a thief caught red-handed (whom he may also behead, or drown in the case of a woman). Even in these cases he may only proceed to justice if the coroner is present. In this sense, the sheriff and his bailiffs, combined with the constables of the townships and the chief tithing-men, are the equivalent of a police force. Just as modern policemen do not actually try the criminals they catch, so too the sheriffs, bailiffs, constables, and chief tithing-men have to leave all the serious cases to judges sent out from London or local justices of the peace.
The sheriff is obliged to hold several courts, most notably the county court, which is held every four or six weeks. Much of the business dealt with is routine: the swearing-in of officers, the announcement of royal proclamations, and the ordering of inquiries into trespasses. The county court also acts as a small claims court: men may sue one another for sums of up to £2. It undertakes preliminary hearings of Crown pleas, referring these where necessary to the royal courts. And it serves as the court at which men are declared outlaws. If a criminal is at large, he is summoned to the county court. If he fails to appear four times, he is declared an outlaw on the fifth occasion. Thereafter he may be beheaded on sight.
The county court also may proceed to justice through a “trial by battle.” If you are the victim of a serious crime (like rape, serious wounding, or arson) and you appear in court personally, you can “appeal” your assailant of the crime. You or your representative may then fight the accused—or his representative—to determine his guilt or innocence. You might be surprised to hear that this also applies to disputes concerning land. Several monasteries have cause to thank men who triumphantly represent them in cases concerning their rights.
HUNDRED COURTS AND THE SHERIFF’S TOURN
Each hundred holds a court every three weeks. The bailiff empanels a jury of twelve freemen to hear all the presentments. Many cases are the consequences of fights. If a man draws blood, this needs to be reported at the hundred court. Other ordinary business includes relatively minor trespasses such as fraud, disputes over small debts, and thefts of household goods and animals. Punishments are almost always fines, varying from place to place. As a rule of thumb, expect to pay between 6d and a shilling for starting a fight, 2s or more for draw
ing blood (although note that most towns have higher fines for this), and 6d for unnecessarily raising the hue and cry. Of course, if anyone has been caught grievously wounding someone, or killing them, or raping a woman, he will be arrested, to await a special hundred court: the sheriff’s “tourn.”
The important thing to remember about hundred courts is that they cross jurisdictions. Manorial business can be dealt with in a manorial court, so if a villein allows a stream across his land to get clogged with detritus, causing a flood, the manorial officers can force him to unblock it. However, if the flood damages property on the next manor, or blocks the king’s highway, the case needs to move up the scale, to the hundred court. Similarly, while tithings are adequate means of controlling villeins, freemen are outside the frankpledge system. The hundred court is where freemen’s misdemeanors need to be reported and where cases of their debts and the fights they have caused can be dealt with. So, if a freeman has stolen your cattle, or has failed to repay a debt and has sufficient animals to cover the sum, you can expect to see the hundred bailiff arresting him, or leading his cattle away, until the matter is settled.
Twice a year, normally at Easter and Michaelmas, the sheriff’s tourn comes to the hundred. The purpose of the sheriff’s appearance in these enlarged hundred courts is to receive those indictments which need to be presented to the royal judges and to make sure all indicted felons are taken into custody. Massive fines—£10 or even more—might be levied on tithings when their members are found not to have reported the misdoings of one of their members. It does not take a brilliant legal mind to see that the modern idea that villeins all stick together like a band of brothers against the dominant lords of manors is not universally true. Those men and women swinging on the gallows might be arrested by the sheriff and his bailiffs but only after they have been reported by their fellow tithing-men. More often than not, the chief tithing-man and the village constable will make the arrest, to avoid the tithing being fined heavily at a sheriff’s tourn for failing to do so.
Now you can see how there come to be so many people brought to justice in the days before police forces. If you, a stranger in this country, are seen in a village at the same time as a burglary is discovered, and the hue and cry is raised, you might be arrested by the local people. You will then be handed over as a suspected felon to the local tithing-man and constable who will personally take you back to your home village and hand you over to the local constable there. In your case this is going to be a little difficult, so the constable will simply lock you in the village prison or stocks (the means of trapping people by their legs) until he can present you at a tourn or take you to the county town, where the sheriff’s gaol is situated.4 There you will remain, in the pit or cellar set aside for felons, or in the wooden cages outside that serve as temporary cells, unless you can obtain bail. The next time the royal judges come to the county, a jury will try you and either hang you or let you go, depending on what they hear of your reputation. You may have to wait months in prison before that day of “justice” arrives. This also applies to women, who are not given any special treatment or protection. One woman accused of stealing a lady’s jewels is locked up in Guildford Gaol “with all the other thieves of the county” for forty-seven weeks before a jury finds her innocent of all charges.5
A surprisingly large number of indicted men choose to accuse other people of crimes, or of complicity in their own crime. This system is known as “approving.” When a condemned man is brought out of his wooden cell or the common pit, and dragged before the judges who are going to try him, he accuses his enemies by way of “appeal.” He is then taken off to be hanged. Notwithstanding his death, writs go out to empanel juries to try those he has accused. It is a shocking system. If you are a criminal and you know you are going to die, then why not accuse your enemies of complicity in your crimes when you face the judges? If your enemies are found guilty, they too will hang. Similarly, if you are going to die anyway, and your gaoler promises you that he will treat you better in your last days if you appeal one of his enemies, then what have you got to lose?6 At Salisbury in the first decade of the century, one Roger Prye is arrested on suspicion of larceny. He confesses before the coroner, so he knows he is going to hang. But, having done so, he then turns approver and appeals Henry the Baker and Eve his wife of receiving him after he stole fourteen bushels of the abbot of Glastonbury’s wheat. Prye is then hanged, but Henry and Eve are dragged in and charged with sheltering him. They plead not guilty, and a jury from the area is empaneled to try them. Fortunately, the jury considers them not guilty, so they are let go.7 You can see how important it is to be considered of good character in your hometown. If your enemies accuse you, often it will only be your good reputation which saves you from the gallows.
MISCARRIAGES OF JUSTICE
Local justice is designed to find somebody guilty; it does not necessarily follow that that somebody is the person responsible for the crime in question. If you begin to look at those who are indicted of serious crimes, it soon becomes apparent that many of them are strangers. In some places as many as 30 percent of all suspected murderers and thieves are described as vagrants.8 How guilty all these men are is a moot point; many of them have probably been accused simply because the people who live in a village are cautious of strangers, and fearful of them, and thus very quick to point the finger at them when a crime is committed. There is a lot of false justice in the country. Just as some men are wrongly accused, others are wrongly acquitted. You even have a few cases in which murderers can be arrested and get off scot-free, having killed an innocent man to prove their own innocence. This sounds completely daft, but it happens. If one man is accused of a murder, and pleads not guilty but appeals an “accomplice” of involvement, he may end up fighting a judicial combat—trial by battle—with him to determine his guilt. If he defeats his opponent, he is deemed to be guiltless of the original offense and may go free.
Bad justice sometimes arises from those who administer the law. There are 628 hundreds in medieval England; but only 270 of them are in royal lordship. That leaves 358 in lords’ hands.9 Many of these private hundreds allow the sheriff and his bailiffs access to their courts, so the sheriff can hold his tourns in the same way as he would in a royal hundred. But some lords of private hundreds have the right to refuse the sheriff access. It is not quite accurate to say that in such places the king’s writ does not run, but it is the lord of the hundred who receives those writs, not the sheriff, and it is the lord who takes responsibility for enacting the king’s orders. Such lords hold their own courts, hold their own equivalent of tourns, and sometimes even appoint their own coroners. They often have the right to hang felons as well. The bailiff of such a hundred can hang those whom he chooses at will, provided the coroner is present. It is very unlikely that anyone will stop him.
There are very few checks or balances in this system. Hence there is a great deal of blatant corruption. The sheriffs and those acting under their authority can easily abuse the system. It is by no means unknown for a sheriff to let an approver appeal a dozen of his enemies of involvement in some crime or other, and, having hanged him, to extort a sum of money from each of the dozen accused people, to secure their bail.10 They pay, of course, to avoid long stays in the county gaol. Thus the sheriff does very nicely out of what is, in every respect, an injustice.
There are worse cases. Torture is supposed to be against the law in England, and so it is—apart from a brief period in 1311, when Edward II acquiesces to the pope’s request to torture the Knights Templar. But the law means little to a powerful sheriff. In 1366 the sheriff of Yorkshire, Thomas Musgrave, is accused of malicious arrest, wrongful imprisonment, extortion, and the entrapment of an innocent man through employment of a packed jury. What he is up to is an old game played by sheriffs for centuries. He has seized one of his enemy’s servants, tortured the man until he is almost dead, and forced him to confess to a series of felonies. He has then forced him to turn approver, appealing hi
s master of complicity in all his crimes, allowing the sheriff to proceed legally against the master, his enemy11 This is hardly justice. Nor is it justice when a woman who is accused of murder has to hide from the law for fear of her gaoler. One poor woman hides when summoned because the sheriff’s clerk in charge of Newcastle Gaol where she will be imprisoned has promised to rape her and pull out all her teeth when he has got her in his power.12 One cannot help but sympathize with women in such a position. If they are caught evading arrest, they may find themselves being outlawed in the county court. If they submit to the law, the indignities forced upon them might be greater than the crimes they have supposedly committed. Nor is it just women who are vulnerable to such humiliations. Sheriffs have been known to have men stripped naked and tied to a post in a miserable gaol pit and left there for days, freezing, in their own urine and excrement, in order to extort payments from them.
And so it goes down the social line. Beneath sheriffs, bailiffs of hundreds abuse their powers in similar ways, waking people up in the middle of the night and carrying away their goods and chattels if they refuse to pay bribes. Some bailiffs make themselves wealthy by ordering townships to have a jury empaneled and then charging the township for organizing that empanelment. They then make even more money by accepting bribes from those who do not wish to serve. Constables of townships might do the same—even tithing-men accept bribes from their fellows for not reporting crimes or reporting false ones. Arguably the most corrupt of all the officers involved in local justice are those who act as gaolers. You can tell that things are fundamentally wrong when a statute has to be passed (in 1330) to stop gaolers refusing to accept certain prisoners. It seems they are refusing to imprison criminals who are not rich enough to bribe them.
