Ignorance of the Law

Ignorantia juris neminem excusat.

Ignorance of the law excuses no one.

Many years ago, comedian Steve Martin offered up a monologue on avoiding a conviction for a crime by simply claiming you "forgot it was illegal." This was funny for decades ... right up until a week ago, when I read that the teenage perpetrators of the assault in Steubenville used as their defense that they "didn't know" what they were doing was wrong.

Can ignorance of the law ever be an excuse?

The Middle Ages deliberated over this topic, ultimately drawing a distinction between two classes of people: those who had no excuse not to know the law, and those who did have an excuse for their ignorance. Canon law wanted to be strict and definitive, but it recognized that there were segments of society that could not be held completely responsible for their actions.

For whom was ignorance of the law an excuse? Actually, several groups were considered exempt from presumption of knowledge of the law:

...minors, madmen, soldiers, and, in most circumstances, women were commonly believed to lack the capacity (in the case of minors and the insane) or the opportunity (in the case of soldiers and women) to know and understand the law. [Medieval Canon Law, James Brundage, p.161]

Much of medieval canon law came from Roman sources such as the Digestum Justiniani (the Digest of Justinian*) in 503. It assembled 50 books covering many topics by multiple jurists. In the Digestum, one classical jurist, Paul, draws a distinction between ignorance of the law and ignorance of fact. Although the legal system may not be able to presume that everyone knows the actual law, it must presume that everyone knows the fundamental factual difference between a good act and a bad act in their community. Otherwise, profession of one's ignorance becomes a universal excuse, and only those who are lawyers, judges, or politicians who actually make the laws would ever be able to be convicted.

Paul is also the jurist who created the basis for presumption of innocence when he wrote Ei incumbit probatio qui dicit, non qui negat. ("Proof is incumbent on him who asserts, not him who denies.") Although the accused could not avoid punishment by simply saying "I didn't know," at least he wasn't convicted based simply on another's say-so.**

*This was Emperor Justinian I (c.482-565), whose reign straddled the Classical and Medieval eras. The Digestum is not to be confused with the Corpus Juris Civilis (Body of Civil Law), the much larger compendium (sometime called the Code of Justinian) that was assembled later in his reign, of which the Digestum was only a part.

**The phrase "Innocent until proven guilty" was coined by the English lawyer Sir William Garrow in the early 19th century.

Compurgators

The ultimate character witness.

Throughout several centuries and many countries, establishing your innocence or trustworthiness in a court of law could be done by the use of compurgators. The word comes from Latin com (with) + purgare (cleanse; hence the modern word "purge").

If you were accused of wrongdoing, you would gather compurgators to appear for you in court. Ideally, you would find 12 of the most respected members of the community who would be willing to stand there and say that they believe you when you say you are innocent. Mind you, if you were found standing over a dead body with a bloody knife in your hand, compurgators were not likely to save you. This worked well when you were accused of cheating on a debt or stealing a spoon and hard evidence did not exist against you...unless you had friends who were determined to protect you.

The opportunities for abuse of such a system were rampant.

Henry II, or instance, in 1164 made sure that compurgation would not be allowed in felonies; he did not like the fact that a cleric (priest) might literally get away with murder in an ecclesiastical court by merely being defrocked, while the royal courts would use capital punishment for capital crimes. The use of compurgation in any way as a defense in England was eliminated from the court system in 1833.

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.

The Price of a Man

Murder has long been considered the worst crime in many societies. Unlike theft, or vandalism, it cannot be paid back. The only "proportional response" for avenging the death of a friend or loved one was to use the Old Testament values of "an eye for an eye" and slay the slayer. This, unfortunately, could lead to a Hatfields and McCoys situation, with death after death on both sides, an escalating cycle of inter-family murders.

But does it have to?

In the early Middle Ages, Anglo-Saxon and Germanic societies found a way to establish, as a community, a way to settle the matter of a death in a legal and tidy system: wergild (Old English wer = "man"* + gild = "tribute/gold").

The practice was first established by Æthelbert of Kent (c.560-616). The Anglo-Saxon Chronicle tells us that Æthelbert held sway over the other Anglo-Saxon kingdoms in Britain. He was the first English ruler to convert to Christianity, and perhaps wergild was his attempt to cool the hot blood of the Anglo-Saxon culture. Within a couple centuries, wergild was being used for theft, rape, breach of peace and many other crimes and misdemeanors. Wergild allowed a community to move on after monetary retribution.

How much retribution? It was different for different areas and times. In Kent in the 8th century, a cow was worth a shilling; a freeman was worth 100 shillings, and a nobleman 300. Elsewhere, a sheep might be worth a shilling, and a nobleman worth 1200 sheep. Only slaves were worth too little to account for.

Exchanging money for people had uses beyond crime. In the later Middle Ages, ransoms for captured prisoners were a regular occurrence, and money was more valuable than eliminating an enemy in a military engagement that was far removed from the emotional setting that might have led to homicide in a different time and place. The 20th century hasn't forgotten about wergild, even if we do not use it widely. You may recall the revelation that the U.S. was using financial compensation for deaths and injuries to civilians in Afghanistan. Wergild also appears in The Lord of the Rings, when Isildur refuses to throw the One Ring into Mount Doom when he had the chance, instead claiming it "as wergild for my father and brother." In his case, however, wergild created a larger problem than it solved.

*Think "werewolf"="man+wolf."

Jews in London

One street is all that remains of the Jewry

Jews had followed William the Conqueror to England* and established a significant presence in London in an area still called Old Jewry. Their business and money-lending practices were efficient, such that their homes were made of sturdy stone more often than their Gentile neighbors' houses. William II (1087-1100) seems to have been tolerant of the Jews; Henry II (fl.1154-1189) as well. Life in London was considered amenable enough to Jews that the well-known Rabbi Abraham ibn Ezra visited London, where in 1158 he wrote his Iggeret ha-Shabbat (Epistle on the Sabbath), which can still be found in print today.
Of course, life was never "good" for the Jews in medieval Europe. In England, for instance, there were laws designed to harass the Jews, like that which required every Jew who died in England to be buried at a special cemetery set up at Cripplegate in London—which forced every Jewish family to pay a fee for the burial.

King Henry III of England was first mentioned here in my second-ever blog post. In 1232 he established the Domus Conversorum (House of Converts), meant for Jews who converted to Christianity, giving up their possessions in exchange for a home and a daily stipend for food and necessities.

Henry was devout, certainly, but not always charitable. In the words of one scholar:

If Henry III, despite being constantly broke, managed to find enough money to keep work at [Westminster] Abbey in progress, that was partly because he was at least a devout enough Catholic to be able to rob the Jews with a good conscience. [A History of London, Robert Gray]

Henry, always in need of money, was fond of borrowing from the Jews and simply not paying them back. Jews were seen as being a tool for the King's pleasure, and the Barons and others resented the Crown's control over them. For the Coronation of Richard I Lionheart in Westminster Abbey, a Jewish group tried to crowd in the Abbey to show support and bring gifts for the new king. Their presence touched off riots. Londoners rushed to the Jewry and set fire to houses, killing those who tried to escape.

Thirty were reported killed. The conviction rate afterward: three. Two of those had accidentally torched a Christian home, and one had robbed a Christian home in the confusion.

*No evidence exists of a Jewish presence in England prior to 1066.

Patent Law

With the world of technology enjoying heated debate over the Apple vs. Samsung patent ruling, I thought it would be interesting to look at the history of patents.

A 1381 letter patent for transfer of property, with king's seal.

According to American classical scholar Charles Anthon (1797-1867), the first known patent was granted in 500BCE in Sybaris in southern Italy. He tells us:

encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year. [Classical Dictionary, 1841]

In medieval Europe, the phrase "letter(s) patent" came into use to distinguish the decree from a "charter." The charter generally declared a law or right that was granted to a family or institution in perpetuity. The letter(s) patent declared a right to an individual and was of a finite duration. The letter patent was sent open, so that all could see it and be aware of the legal action it portended; this was distinct from "letters close," a private letter sent from a royal personage or from the chancery.

Letters patent were very specific, and the king was willing to grant them because he usually saw benefit from them. So, in 1331, Edward III grants a patent to John Kempe, a Flemish weaver, as an inducement for skilled foreign labor to settle in England and instruct the English in advanced textile-related techniques. This, of course, would greatly benefit the economy of England in the future. Note that this was not a patent (in the current sense) for protection on an invention; it was a letter of "protection" to allow a foreign worker to ply his trade without threat from rival local workers.

The idea of a "patent" in the modern sense—the right to use your own invention in public without fear that someone would copy it and benefit from it—comes a little later. In 1421, Florentine architect Filippo Brunelleschi (1377-1446) received a three-year patent granting him exclusivity on his invention: a barge with a hoisting device to transport slabs of marble. A generation later, in 1449, Henry VI of England granted what is considered the first true English patent to John of Utynam for his method of making colored glass. John, a Flanders native like Kempe, got 20 years of exclusive benefit for his methods; his first commission was to make windows for Eton College.

In 1474, Venice declared that any new inventions must be presented to the public so that the inventor could be granted the right to prevent their theft by others. This is considered the beginning of the modern approach to patents.

The Tun

Current robes, Mayor of London.

Henry le Waleis (?-c.1302) was a prominent citizen of London who served as alderman in two different wards, was elected sheriff in 1270, and became mayor in 1273. Law enforcement seems to have been a serious consideration of his during his time in public office: in 1270 as sheriff he erected a new pillory for bakers who tried to cheat customers by selling underweight loaves of bread.

Waleis had several butcher and fishmonger stalls removed to make a better passageway for the king when he traveled in and out of London. These merchants were upset, and challenged the change with the former mayor, Walter Hervey, on their side. But when Hervey had strong words with Waleis, Waleis had Hervey arrested and imprisoned; he was tried and demoted from his position as alderman. To be fair, Waleis did have new buildings constructed in 1282 in a different part of London for the butchers and fishmongers.

In 1283, in the Cornhill area of London, he built a prison for the temporary incarceration of "night-walkers." Night-walkers were people found wandering the city after curfew. Night-watchmen would patrol the city, checking to make sure you had legitimate reasons for being outside at night. A servant who carried a message from his employer giving a reason for travel, and who carried a light (to prove he was not hiding his actions), would be allowed to go on his way. Someone with no light could be deemed "suspicious." Transgressors were held for the night and turned over to the mayor and aldermen in the morning. It was called "The Tun" because it resembled a tun or cask used for wine, stood on end and crenelated at the top..

Strangers and suspicious characters were an important issue for the mayor. Waleis made sure that the city gates had sergeants who were "fluent of speech" in order to question strangers to the city. He also arranged that parish churches would coordinate so that their bells rang curfew at the same time, whereupon gates and taverns were all to close.

An Ordinance of the city directed that bakers and millers found cheating their customers would be drawn (dragged) to the Tun. Waleis provided a wooden hurdle to which the malefactor would be strapped and then drawn through the streets for a touch of public humiliation before his incarceration. Also, if a priest were found with a woman, he would be drawn to the Tun with minstrels playing in order to draw even more attention to his misbehavior. (This practice was eventually eliminated. The Church convinced the King that the laity should not authority over the clergy.)

Treason

Nowadays, when the word "traitor" is used casually to refer to someone who has decided he likes "Hunger Games" better than "Harry Potter," and when Freedom of Speech tolerates numerous calumnies against political leaders, it is difficult to imagine the enormity of the charge of treason centuries ago. "Traitor" comes into English from the French traitour, which in turn is from Latin traditor, "one who hands over." It is directly connected in the medieval mind with Judas Iscariot turning over Jesus to the authorities.

If medieval kings were duly anointed and therefore had God behind them, betraying a king was akin to blasphemy. Only the harshest of punishments was suitable for treason: to be hanged, drawn and quartered; however, a woman was burnt at the stake (the quartering of her body would result in people seeing naked lady parts, and that was unacceptable in a civilized society), and nobles convicted of treason had the more genteel conclusion of beheading.

Edward III

The difficulty with treason was the flexibility of the charge. During the time of Edward III (1312-1377), the courts sometimes declared as treason crimes that others would consider mere felonies, or acts that infringed on the king's power. By this loose definition, gathering firewood in the king's hunting grounds could be prosecuted as treason. The Treason Act of 1351 clarified the position of the Crown and Parliament, splitting offenses into high and petty treason. Petty treason was the killing of your (non-king) superior, and was abolished in 1828.

High treason could be achieved by numerous actions:

• Killing (or planning to kill) the King, his wife, or his heir
• Violating the King's wife, the King's unmarried eldest daughter, the wife of the King's heir
• Warring against the King
• Providing aid and comfort to the King's enemies
• Counterfeiting the Great Seal or Privy Seal
• Counterfeiting English currency
• Killing an acting Chancellor, Treasurer, or a King's Justice

The Act took no chances, however, that new forms of treason would be thought of, and allowed for them in the future:

And because that many other like Cases of Treason may happen in Time to come, which a Man cannot think nor declare at this present Time; it is accorded, That if any other Case, supposed Treason, which is not above specified, doth happen before any Justices, the Justices shall tarry without any going to Judgement of the Treason till the Cause be shewed and declared before the King and his Parliament, whether it ought to be judged Treason or other Felony.

Changes have been made over the centuries. For instance, although the Treason Act of 1351 still holds in Scotland (because Parliament has not given Scotland the power to change it), it is no longer treason in England (as of 1861) to copy the Great Seal. Also, counterfeiting was reduced to a felony in 1832.

Ultimate Torture

We have so often heard the phrase "hanged, drawn and quartered" that we probably don't think about the details--or perhaps we simply ignore the details because our imaginations can supply them quite readily. The truth is, however, that the phrase became standard despite the fact that it could mean different things.

From the Chronica majora of Matthew Paris.

"Hanged" is pretty self-explanatory, "quartering" we can picture, but it's the "drawn" that presents confusion, since in the case of execution it can mean two things. On the one hand, it can refer to being dragged to the place of execution, either by being tied directly to a horse, or by being tied to a board that is dragged by a horse (the second method was developed so that the victim had a chance to be still alive and capable of further suffering). Matthew Paris illustrates an example of the first method in his Chronicle when he relates the story of a would-be assassin of Henry III. This story, in fact, is the earliest example we have of the multi-phase style of execution that evolved into "HDaQ." There was a second meaning of "draw" that applied to this punishment, however, for which I (thankfully) do not have an illustration: to draw out the intestines/organs of a person. We have several written accounts of this taking place, however.

Was there a distinction between HDaQ and DHaQ? That is, if the sentence was "hanged, drawn and quartered" did it always mean the convicted was disemboweled between the hanging and the quartering? Scholars disagree on this, and there is a case to be made that having "drawn" in the second position in the phrase could mean the convict was dragged, not disemboweled; it was merely mentioned second (although it might have taken place first, to get the convicted to the gallows) because it was not as significant as the hanging itself.

Whatever the case, the hanging was the trickiest part, because the goal was to strangle the victim just enough, but not kill him outright: you wanted him alive so he could suffer during the next step(s). The plan didn't always work: one victim was so hated that members of the crowd pulled down on his legs while he was hanging and hastened his death, and Guy Fawkes of Gunpowder Plot fame threw himself from the gallows platform, breaking his neck and cheating the Crown of its chance to punish him further.

Still, even if you survived the hanging and drawing—whichever definition was used—you usually weren't conscious (much less living) once the quartering started. So was the quartering essential to the process? Sure, because quartering wasn't part of the sentence for its value as torture. Quartering was important so that different body parts could be sent to different parts of the kingdom to be put on display as a warning to others who might be contemplating treason. The head, of course, was often prominently displayed on London Bridge, the major southern entrance into London, so that visitors and citizens could see it. I wonder if the mob of the Peasants Revolt saw any heads as they marched on London?

Statutes of Laborers

Controlling the Workforce

After the Black Death (1348-49 in England), the workforce was radically reduced. In a culture where 90%+ of the workforce was involved in agriculture, and every bit of it done by manual labor, this was potentially disastrous for lords who relied on peasants to plant and tend and harvest crops. The obvious solution was to offer better wages if peasants would leave their homes and settle in the lords' villages that had been deserted by the Pestilence.

This competition for labor did not sit well with most of society, who saw it as a disruption of the way things had been for centuries. The first Ordinance of Laborers was established by Edward III in 1349 to try to prevent the disruption of society that a "free market" could create. It stated:

• Everyone under the age of 60 must be willing to work
• Employers must not hire more workers than they need
• Wages must remain at pre-Pestilence levels
• Food prices must not be increased

Did it work?

• 1350 saw the Stature of Laborers that fixed the wages of laborers and artisans.
• 1356 saw regulations placed on the trade of masons. (Freemasons use this as proof that Freemasonry has been fighting "the Man" for centuries.)
• 1368 saw the Statute of Laborers reaffirmed.
• 1377 saw an act restricting the freedom of serfs to move from domain to domain.

Clearly, the laws had to be re-enacted because no one was listening. The attempt to suppress the freedom of the lower classes continued for the next two centuries; however, we will only concern ourselves with these few decades, because they led to the first occupy movement. I'll tell you about it tomorrow.

Compurgators

The ultimate character witness

Throughout several centuries and many countries, establishing your innocence or trustworthiness in a court of law could be done by the use of compurgators. The word comes from Latin com (with) + purgare (cleanse; hence the modern word "purge").

If you were accused of wrongdoing, you would gather compurgators to appear for you in court. Ideally, you would find 12 of the most respected members of the community who would be willing to stand there and say that they believe you when you say you are innocent. Mind you, if you were found standing over a dead body with a bloody knife in your hand, compurgators were not likely to save you. This worked well when you were accused of cheating on a debt or stealing a spoon and hard evidence did not exist against you...unless you had friends who were determined to protect you.


The opportunities for abuse of such a system were rampant.

Henry II, or instance, in 1164 made sure that compurgation would not be allowed in felonies; he did not like the fact that a cleric (priest) might literally get away with murder in an ecclesiastical court by merely being defrocked, while the royal courts would use capital punishment for capital crimes. The use of compurgation in any way as a defense in England was eliminated from the court system in 1833.