English law in the time of Magna Carta was based on two traditions, one going back to the time before the Norman Conquest of 1066, the other created in the 12th century. The older tradition had roots in old customs and in texts, one of which is thought to have been written between 601 and 604 AD.
A wide range of issues was covered by these early laws, including punishment for criminal activity and compensation payments for injuries. One of the kings who contributed to this legal system was Alfred, king of the West Saxons (c849–899), who laid the foundations for a united kingdom of England. The counties into which England was divided, probably since the ninth century, were administrative units under royal officials – ‘shire reeves’ – who were also entrusted with the task of jurisdiction. They convened the county courts, and it was here and in the subdivisions of the counties (of which there were hundreds) that most trials took place.
The law dispensed here was ‘customary’ law. It had been developed further through written royal laws, which are often attributed to individual rulers of the Anglo-Saxon kingdoms. Most people had to take their litigation to the county court and only members of the social elite had direct access to the king.
The second tradition, created by the legal changes in the 12th century, generated a new legal system based on royal justice. It was enforced by royal judges who were sent into the counties, where they used the traditional county courts as a forum for a gradually developing new royal law.
The jury system
Among the legal innovations was the jury, which was introduced in civil cases – mostly those about the possession of land as well as in the criminal law. Juries were supposed to be composed of well-informed people who would provide information with the promise – made before God – to speak the truth. This obligation gave them their name: jury, from Latin ‘jurare’, meaning to give an oath.
In the evolving land law, juries were used to determine questions of fact, answerable simply by ‘yes’ or ‘no’, in proceedings about inheritance or in disputes about ‘seisin’, a form of direct control of land and buildings. Was the claimant’s ancestor really the last person to be seised and is the claimant really that tenant’s heir? Had a person who had been seised of a specific piece of land been forcibly evicted without judgement?
These – and similar – procedures were popular, and part of the beginnings of a common law that was based on royal authority and which applied to all parts of the kingdom in the same way. The mechanisms of this law were first described by Ranulf de Glanvill, one of the administrators of Henry II (king of England from 1154–89), who also served as a military leader and diplomat, his career culminating when he obtained the highest office in royal service, that of justiciar.
Glanvill’s treatise, On the Laws and Customs of the Kingdom of England, reveals a pragmatic and in many ways modern legal system. During Henry II’s reign royal justice was made available to all free subjects, and since the king and his court tended to be mobile (not merely in England but also in other territories, notably Normandy), a royal law court independent of the royal household was set up in England.
The seal of King Henry II of England, 12th century. From the original in the British Museum. (Photo by The Print Collector/Print Collector/Getty Images)
However, elements of the older legal tradition continued to be part of the law, for example in the criminal law. Up to 1215 proof of guilt or innocence was still by ordeal, a procedure that invoked divine intervention to determine whether the accused was responsible for the crime or not. Invariably this was a public ceremony involving a short period of fasting, a religious service and the subjection of the defendant to the actual test. In the 12th century this was very likely the ordeal of cold water: the accused would be submerged in water to see whether he would float (a sign of guilt) or sink (a sign of innocence).
Two other ordeals involved the ritual infliction of injury: that of the hot iron and that of boiling water. The first saw the defendant carry a hot iron over a distance, while the second ordeal forced the defendant to retrieve items from a cauldron filled with boiling water. In these forms the healing process determined the guilt or innocence of the accused. These ordeals required the participation of a priest, a precondition that could no longer be met when the Church decided to prohibit the involvement of priests in these ceremonies in a council held at the Lateran in Rome in 1215. The council’s decision made it impossible to continue with the traditional ordeals and an alternative had to be found. In England this led to the creation of the trial jury for criminal cases.
These changes to the criminal law were not reflected in the 1215 Magna Carta, although the document contained frequent references to the law. Tenants-in-chief, those major landowners who held their property directly from the crown and their heirs, were protected from arbitrary royal demands when an inheritance was due.
Another form of protection for this elite group was King John’s promise not to grant the marriage of the heirs – and especially heiresses – of crown vassals to people below their social rank. As feudal lord the king had the right to do just that and John is known to have kept lists of heirs and heiresses whose marriage could he sold to the highest bidder.
Another clause of Magna Carta concerned the location of the royal court for pleas between private parties (common pleas) established during the reign of Henry II. It was important that litigants were able to find the venue and this was to be in a place known to all, according to baronial demands. However, the charter did not only deal with the social elite, although a baronial faction had been instrumental in forcing the king to agree to the demands. The opposition consisted of a broader spectrum of society and the interests of other groups were also considered in the document.
The privileges of London were confirmed and the commercial interests of wider communities were taken into consideration. There were to be no changes to the communities’ obligations to repair bridges – no arbitrary increase of traditional requirements to bear the costs – and royal bailiffs were not to put anyone on trial unless there were credible witnesses to the charge.
View of a copy of Magna Carta and seal of King John, 1900s. (Photo by Mansell/The LIFE Picture Collection/Getty Images)
Merchants were to be secure in their business and they were to be granted free access to and from the country. The charter went even further in extending the range of social groups involved. It introduced changes to the forest law. The royal forest consisted not necessarily of woodland but of areas in which the king’s hunt was protected by imposing restrictions on landowners. This subject was so sensitive that in 1217, when a third version of Magna Carta was granted, the original document was accompanied by a separate charter only dealing with forest issues.
Modern historians emphasise that Magna Carta was an attempt to find a resolution for an acute political crisis rather than an effort to introduce long-term constitutional reform. Nevertheless the charters (Magna Carta versions of 1215, 1216, 1217 and 1225 as well as the Charter of the Forest of 1217) were an important element in the evolution of a distinctive English common law. The inclusion of specific and rather technical issues shows that the development of this law was part of a political process, a form of negotiation between a crown (with its power based on a modern and centralised administration) and different social groups who wanted a protection of their interests.
Dr Jens Röhrkasten is a lecturer in medieval history at the University of Birmingham who specialises in medieval criminal law.