Criminals and the law in the reign of Richard II

The materials for studying the nature, incidence, and distribution of crime in later medieval England are copious, but they present very serious difficulties of interpretation. Much work has been done on legal and administrative records as such, and a few tentative studies of crime have been published, but no one has hitherto attempted the detailed account of the machinery of criminal justice, and of the possibilities and limitations of the available records, which should precede any wider investigation of the criminal in society. This thesis is intended to contribute such an account. Its sources, and its relevance, are not by any means confined to the given period and county, but it was necessary to focus on a manageable proportion of the records in order to study them in adequate depth, and Hampshire at the end of the fourteenth century offered a substantial and apparently representative selection of surviving materials.
A preliminary note describes, briefly and broadly, the way in which a modern notion of serious crime has been related to the less conceptual, more procedural distinctions of medieval law. This is followed by a chapter describing in detail the procedures whereby criminals were accused, detained, tried, and punished. The analysis of local first instance courts - coroners' inquests, law hundreds, tourns, peace sessions is especially revealing; a disproportionate amount of work on the peace rolls has previously led to the assumption that, by the period of the Black Death and its aftermath, peace sessions were the most important source of criminal prosecutions, whereas the case of Hampshire shows that private courts were still of prime importance until 14OO and beyond, with coroners also making a large contribution. In general, indictment and trial procedures were far more openly flexible and less punctilious at the end of the fourteenth century than they had been a hundred years earlier, and this was reflected particularly in procedures whereby many suspects were acquitted without trial, by disavowal of mainour or by proclamation. In these as in other cases, the nature and status of evidence heard in court remains obscure.
The second main chapter examines the social status of the various officials and jurors whose decisions affected the criminal. As with procedure, the simplest means of analysis is court by court, taking the officials and specimen juries and identifying them in poll tax returns and other available records. The results bear out what is already known about coroners, justices of the peace, and professional justices, suggesting also that variations in the personnel of peace commissions had less effect in practice than has been supposed. Officials holding private law hundreds seem to have been a very heterogeneous group, ranging from county magnates to obscure and minor clerks. The juries at these sessions seem to have been genuinely local and humble; coroners' juries were also demonstrably local in most cases, although there are signs of special recruitment when an adverse verdict was required. Presenting juries at peace sessions were mainly local men of substance, and openly self-interested. Trial juries, although evidently empanelled with difficulty and some improvisation, were usually as local as possible to the offence.
After this discussion of procedures and the personnel who implemented them, there is a detailed consideration of the resultant documents and their evidential value. The relatively careless compilation of coroners' and peace rolls provides one problem, while the failure of many records to survive is another. While some basic information from lost documents can be reconstructed from related materials, there is no means of restoring all the lost data. Even were this possible, it would not obviate the great circumspection which the records require, since it is possible to find many examples of major and minor inaccuracies - sometimes the product of rather summary procedures, sometimes of careless transcription or redaction, sometimes of an intention to produce a particular judicial outcome. In general the local first instance records seem most nearly reliable; the trial courts, especially king's bench, provide a definitive view only of the law as it was applied.
It has often been argued that the common law was peculiarly sterile on the criminal side. Chapter V attempts a defence of the medieval criminal law, on grounds of its flexibility and practicability in what was normally a limited range of contingencies, and shows, in a review of the law on particular offences, the degree to which practical considerations could be and were accommodated. The law of treason, for example, rested very largely on political expediency, with a fairly generous attitude towards petty counterfeiters. The law of homicide showed unexpected simplicity; on the other hand, the historian cannot wholly disentangle the contortions into which the law of rape threw the practice of prosecuting it.
When all the foregoing points have been examined, it remains to consider the extent to which we can know about medieval crime. A chapter on criminal justice outlines those areas in which we can and cannot rely upon the available information. It is clear that some indictments were accepted despite doubtful legality or veracity, and it is also clear that many verdicts are unreliable - particularly in king's bench, where verdicts seem always to have favoured the party who brought the case to court. There is, moreover, seldom any indication of motive by which the historian can assess an accusation. As for the professional criminal, the ease of reference to persons of prominent family or substance has meant that the gentry has received more attention in this matter than has the true professional underworld; a careful scrutiny of approver's appeals, however, shows that much can be learned about the routine activities of professional petty thieves, rustlers, and highwaymen. Further discussion of varying criminal jurisdictions argues the difficulty of knowing how effectively and systematically crime was attacked and punished; but a postscript allows that crude statistical analysis, and minute scrutiny of particular topics, may allow something to be known of the nature and incidence of crime in later medieval England.