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|CRIME AND JUSTICE|
|Subject:||Cases illustrating defence by wager of law|
|Original source:||Corporation of London Records Office, Misc. Roll AA, mm.2, 4|
|Transcription in:||Helena Chew and Martin Weinbaum, eds. The London Eyre of 1244, London Record Society, vol.6 (1970), 25, 62-63.|
[Charge of beating causing abortion]
Isabella, the wife of Serlo, accuses William Bertone of having beaten and ill-treated her in her house on 26 April 1242, as a result of which she gave birth prematurely to a [still-born] son. That he did this malevolently and in breach of the king's peace she offers to prove by whatever [process] the court considers appropriate. William comes and declares himself innocent, denying that he committed the assault, a felony, or anything against the king's peace; she has accused him out of malice and hatred. On which [defence] he puts himself on the verdict of the mayor and citizens of London. The chamberlain and sheriffs are asked if they saw the still-born child. The sheriffs say they did not. The chamberlain says that he saw the child with its skull shattered, its left arm broken in two places, and the whole body blackened by that beating. Because the chamberlain, who has a record, has given that testimony, it does not seem to the justices that [the accused] can clear himself by the verdict of mayor and citizens; particularly in cases of homicide, where someone prosecutes or where there exists a strong suspicion [of guilt], no-one should be allowed to put himself on their verdict. Thereafter William came and put himself on the Great Law, and the justice took pledges from him. He may therefore wage his law and defend himself with thirty-six hands, of which eighteen are to be chosen from one side of the Walbrook and eighteen from the other side. They are to be selected the following day in the folkmoot at St. Paul's, in the presence of mayor and aldermen but the absence of chamberlain and sheriffs. He is to come with his law [i.e. oath-helpers] eight days after the selection, by permission of the justices at the request of the barons. Otherwise he would have had to come on the day after [the selection], since this was found to have been the procedure in the last eyre, in the case of John Herlizun.
Pledges of [performing] the law: William de Haliwelle, Augustine de Haddestoke, Robert Herlicun, John Shouke, James Beaupyne, Roger le Demur, Ralph de Balesham, Richard le Rous diller, Stephen le Paumer, Simon le Teinturer, Godefrey le Frutur, Richard de la Mare. On the following day 36 were chosen at the folkmoot in the manner specified; that is: from the east side of the Walbrook, Richard le Brayere, Abel de Colecestre, John de Ramesey, William Cocus, William de Oystresgate, Benedict de Waltham, William Scot, Warin Vinetarius, Richard Rad, Alexander de Waleworthe, Roger fitz William, Thomas Pertriche, Walter de Coggeshale, Geoffrey Canele, William de Lenne, John Souke, Robert Scot tailor, and Geoffrey Wysdom; from the west side, Ralph de Ely, Augustine de Hadestoke, James Beaupine, John de Kay, William de Cudingtone, Geoffrey de Stratford the falconer. He [i.e. William] was to come with his law eight days after that selection; the woman [i.e. Isabella] was committed to the sheriffs, who were to have her [in court] on that day. On which day William came with his law and waged it before the justices in the following way. First William took the following oath: that he had never beaten Isabella so as to hasten the death of the child to which she gave birth prematurely. Next six [oath-helpers] took the following oath: that to the best of their knowledge the oath he had taken was true. After those six had sworn, William again swore, repeating the oath he had taken before; and afterwards another six took oath. And William took the oath thus six times, and so he did his law. It was therefore judged that William be acquitted forever, and Isabella be committed to gaol.
[Charge of homicide of a woman]
On 16 June 1231 a certain Edward de Bray weaver assaulted and ill-treated Alice, the daughter of Richard de Wiltone, in the fields near Stepney, breaking her arm in two places. Consequently Alice, while still alive, brought a charge against him but died from the beating while prosecuting her case. After her death, her sister pursued the prosecution; she too died while the case was going on. Edward was attached because of the accusation, and now the crown takes the initiative in pursuing the charge against him and asks him by what means he wishes to defend himself against the charge of homicide. He says that he wishes to defend himself according to the law and custom of the city of London, and is handed over to the sheriffs until it shall be decided how he ought to clear himself. Afterwards the mayor and citizens come and say that since the only plaintiff in this case is the king, Edward ought to wage his law and defend himself with seven hands, not thirty-six. Should he fail in his law, he should face the same sentence as if he had failed in his law with 36 hands. But if he performs his law [successfully], he should be acquitted. Furthermore they say that whenever anyone wages law with 36 or seven hands, the mayor and citizens should (without the chamberlain and sheriffs being present), on the basis of their oath and loyalty to the king, choose from the better and more reputable men of the city the compurgators who ought to perform the law. [This being done] in the presence of the one who must clear himself by the law so that he may reject anyone he can, by just cause, show to be hostile to himself or essoinable. And [they say that] by rights a day ought to be set for him [to wage law] 15 days after the day appointed by decision of the justices for the selection of the compurgators, unless the justices may wish to set a later date. (But the contrary can be found further on). On which day, if he does not come, he is to be considered convicted. During that period, he is to be freed on bail of 12 guarantors, so long as each is of sufficient means to to answer to the king for 100s., if on the day following the end of the period they cannot produce him [in court]. Let it also be noted that after anyone has been accused of, and attached for, homicide he cannot exact a recognizance until he has been acquitted of the charge against him. If he is not able to find guarantors in the interim, he is to be committed to prison.
Compurgators acted like a jury in some regards. The accused could not personally pack the jury by choosing its members; compurgators were not allowed to include relatives by blood or marriage to the party for whom they were asked to vouch. On the other hand, the accused had to be informed of the names of the compurgators chosen and could veto over the choice of anyone he could successfully argue was inimical to him, as well as point out anyone who might escape "jury duty" by having a legitimate excuse for absence, thus jeopardizing his waging of law. We find similar grounds for veto in some other towns, along with other grounds for objection, such as that a compugator was a proven perjuror, or had been convicted of some other offence involving deceit (e.g. adultery), or was a fugitive from another country because of a crime he had committed there, or was a minor or a madman.
Compurgators were selected, in theory, from law-abiding citizens who would be able to give an honest opinion or at least a 'best guess' as to innocence or guilt, based on what they might know or have heard of the case or, at very least, what they might know of the accused's character or reputation. The process surely favoured the accused, however, in that compurgators would have been likely to go against the accused only if they had evidence or strong suspicion of guilt, or at least felt that the accused was generally a bad lot. The mention in the second case of an accused not being able to transact recognizances while the case was in process is curious; it is not clear whether there is any suggestion that recognizances might have been used to bribe, blackmail or intimidate compurgators we see a similar concern at Leicester a little later, and about the same time we have a complaint of jury-tampering at Oxford. Certainly concern shown in London and elsewhere with avoiding biased compurgators is suggestive: no smoke without fire.
Two other accusations of beatings causing miscarriage were heard in this eyre. In both cases the conclusion of the court was that the deaths of the infants were not caused by the beatings. This appears to have been Bertone's defence. The chamberlain's eye-witness evidence counted for nothing in the decision of guilt or innocence, serving only to convince the court that there was a case to answer, and reflects an imperfection in the judicial system. In the 1276 eyre there were two such cases and again, both defendants were acquitted, even though in one the defendant's legal manoeuvrings themselves create a suspicion of guilt. Since beating a pregnant woman so that an abortion resulted was considered (at least if the foetus was in an advanced condition) homicide and therefore a capital offence, juries may have been reluctant to convict. A more detailed study would be required to throw light on whether the jury system was inherently biased against female plaintiffs (on this see "Accusation of rape").
"chamberlain and sheriffs are asked"
"36 were chosen"
"But the contrary can be found further on"
"freed on bail"
|Created: August 18, 2001. Last update: November 23, 2002||© Stephen Alsford, 2001-2003|