Criminal Intent

When Henry I (1068-1135) was king of England, the rule of the law was simple: someone had to pay for a crime. The philosophy was "who sins unwittingly shall knowingly make amends." This was a few decades into Norman rule in England, but it mirrored the previous Anglo-Saxon law as well: someone had to be responsible if a wrong had been committed. In fact, the law under King Cnut (985-1035) demanded that even an infant who broke a cup was guilty as if he were an adult acting deliberately. (Remember the importance of the wergild to pre-Norman England.) At least Henry's law allowed the very young and the insane to be considered innocent, being not in their right minds. Accidental injury was still injury, however, until a legal expert came forward who tried to change that.

Henry Bracton (1210-1268) was a jurist who worked hard to codify and update English law, using the well-developed Roman legal system as his guide. His four-volume De Legibus et Consuetudinibus Angliæ (On the Laws and Customs of England) informed much of English law afterward, even though he didn't finish it (I'll explain why shortly). He had a lot to say about the practice of seeking Sanctuary in a church, about "writs of appeal," and murder fines and dying intestate. But what we are looking at today is the concept of mens rea.

Mens rea, Latin for "guilty mind," was considered by Bracton to be a necessary element of a crime, as opposed to just an actus reus (guilty act). Just as Bracton insisted that stealing required an intent to steal, so the attitude of the law to killing must reflect the agent's intent to kill:

the crime of homicide, be it either accidental or voluntary, does not permit of suffering the same penalty, because on one case the full penalty must be exacted and in the other there should have been mercy. [De Legibus]

This was a significant change, and made a harsh law more reasonable. The fact that a felony in modern jurisprudence requires intent starts with Bracton's move away from a strictly "mathematical," eye-for-an-eye approach to punishment.

A page from De Legibus

So why didn't he finish it? Bracton rose far in his career: from being a justice at the age of 35 to being a member of what became the King's Court. But by 1257, something prompted him to quit his position not long before the summoning of the Mad Parliament by Henry III and the unrest that led to the Provisions of Oxford. By quitting, he had to turn in all of his papers, court cases, notes and copies of the law that he had been drawing on to write De Legibus. The timing is suspicious, especially considering the personal cost to him and his life's work. One wonders if he wanted to avoid taking sides, or, if he already had taken a side, who he was afraid of angering most: the king or the Barons.

Whatever the case, he walked away from law and courts for years, becoming a rector in a couple places, then an archdeacon, and finally the chancellor of Exeter Cathedral, in the nave of which he is buried. But in the last year of his life he was drawn into one more court case which, depending upon his reasons for leaving the law just before the second great conflict between a king of England and the Barons, might have been awkward for him. At the end of yesterday's post, the Dictum of Kenilworth  was mentioned, allowing the rebels to make a case to reclaim their estates from their king. Henry Bracton was appointed to the committee that heard their cases and decided the outcome, giving him one last chance to practice law—on behalf of people who had been his colleagues on the King's Court.

That's "Positively Medieval!"

It is not uncommon for the term "medieval" to be used negatively, to connote an action or opinion that is primitive or uncivilized, or that displays outright savagery. There is, of course, much discussion among medievalists who feel this does a disservice to a time that, to borrow from C.S. Lewis, was "not a matter of having no manners, as having different manners."*

There is a recent story in the U.S. political realm, however, whose medieval roots are difficult to ignore. It's time, therefore, to take a brief look at some early law books at the beginning of Western Civilization to see if we can explain some of the modern attitudes that some of us would call "positively medieval."

Fleta was published not earlier than 1290, and probably shortly after. It is a 557-page Latin book of English laws found in the Cotton Library. It seems to be largely a re-write of the De Legibus et Consuetudinibus Angliæ (On the Laws and Customs of England) of Henry Bracton (c.1210-1268). Fleta contains some early laws that support ideas that are still with us. For instance, in one place, it says:

Those who have dealings with Jews or Jewesses, those who commit bestiality, and sodomists, are to be buried alive after legal proof that they were taken in the act, and public conviction.**

It should be noted that the penalty of burial alive is not known to have been carried out at any time. Fleta also contains the following clause while discussing rape, which has become a very popular topic this week:

If, however, the woman should have conceived at the time alleged in the appeal, it abates, for without a woman's consent she could not conceive.

The claim is that if a woman conceives during intercourse, she cannot claim rape. The belief was that part of the mechanism for conception of a child was the love between the husband and wife, and their enjoyment of the act. If the pleasure were missing, conception could not occur.

I mention Fleta because it is being quoted this week in public forums. In fact, more than one compendium of laws existed early on. One of them, called Britton, was contemporaneous with Fleta. Britton was written in French, was very similar to Fleta (having drawn from the same sources), was more organized and codified, and was probably turned to more over time because French was a more accessible language to a majority than Latin. Like the U.S. Constitution, which denied equality to women and blacks, these works are interesting historical documents that deserve to be discussed but need to be amended if we expect to actually apply them to the modern world.

*From That Hideous Strength, when describing the eating methods of the recently-revived 6th century Merlin.
**The 1290 date can be surmised because that is the year Jews were declared "outlaw" in England, and given the choice of Expulsion or conversion and a kind of "house arrest" in the London "Converts' Inn." Prior to this, "dealings with Jews" would have been typical.