#4: Medi-Evil: The Law of the Dark and Middle Ages, Part 2

[RPGnet Columns]

http://www.rpg.net/columns/legal/legal4.phtml

Summary:

The Post 1066 Era.

Go to the column (http://www.rpg.net/columns/legal/legal4.phtml) for more information.

[Mirkady]

Judging by the title of the next column, it seems you might be leaving the historical legal systems part behind - which is a pity. I can't help feeling that you might have somewhat short changed the development of the English legal system since the conquest rather by putting it into just one column too. There are plenty of aspects of law and proceedure the development of which is likely to provide potential for interested RPGers.

There is also one, reasonably important, mistake. The development of the common law is generally regarded not as an initiative by William I but by Henry II. Hnery II was the king who set about the process of making the King's courts the preeminant judical body in the country. He did this as a reaction to the weakened position of the Crown before he took over. Henry's mother had been involved in a deeply destructive civil war with the previous King, Stephen. Henry realised that, by providing the resolution of disputes more widely, he could increase his power. It also, doubtless, helped treasury coffers. The concept of the common law itself came, not so much from any shared widely held customary practices of local courts, but the common law as developed by the king's courts (which would be common to all). Over time the idea of precedent created a genuine body of law in common.

The whole purpose of the common law was, therefore, to deliberately weaken the old 'feudal' courts (where actions would be against your equals before your direct liege-lord) and create a system where the feudal bonds were less important than the King's law.

You've referred to the different systems of courts (Church, Manorial, Guild, King's Bench but also, for instance, the Court of Common Pleas might be mentioned) but, what might not be clear, is that these different systems might intrude into what would more obviously be the province of another. The ecclesiastical courts ended up willing to adjudicate on matters that had no obvious religious connection (contracts, for instance). And whilst the King's courts might have tended to deal with the more serious offences they could equally deal with more trivial matters - any 'assault by beating', in the time honoured phrase, can go before the King's court. There was nothing wrong necessarily with a choice of venue (as you seem to hint by saying "After all, the King would never know, right...? ") so long as the court was entitled to hear it.

The choice of venue was generally then determined not by the type of offence, wrong or injustice but by the nature of the complainant/plaintiff. They would choose where the case was to be tried when they brought an action. Questions of the wronged party's means, connections and social standing would be very important, therefore.

The distinction between - and development of - criminal and civil law would have been worth considering, particularly as, in the last column you pointed out, the systems had originally been compensatory rather than punitive in nature.

Of all the sorts of cases that players are likely to be directly involved with (often as the accused) the criminal trial is the most likely. It is worth noting, therefore, that some of the traditional assumptions we might make about them didn't hold true in the past. There was, in English law, no entitlement to representation until the eighteenth century. In fact, the accused was barred from having a lawyer. Generally, the prosecution was conducted personally by the alleged victim (or his or her family if they were unable to participate). This led to trials with very little by way of rules of evidence. When the right to representation by counsel was introduced, it was done so piecemeal - at first for treason only. A PC might be confused to learn that the lawyer he has hired at great expense might be barred from saying anything or only able to on certain allegations.

The jury's role developed over time. Nowadays, we expect a body of unbiased men and women who will listen to the evidence and decide simply on that. Originally, the jurymen (and they were all property owning men) would have been expected to know the individuals involved and (probably) be aware of what had happened too; there would be no need for evidence at all - just accusation and verdict. Of course, a transient PC is unlikely to be known the jurors and will be at a disadvatage to Bill the Cooper, the complainant.

We might look at what happens when waiting for the visiting assize to arrive (holding prisons?) and if an accused fails to plead (due to an unfortunate misreading the statute they were pressed under weights until plea or death).

Perhaps punishment will be reserved for a latter column - there is certainly plenty of material there.

I'm sure there were plenty of other points that occured to me too but, the moral is, don't hurry through so much. Law is not necessarily a dry subject. It's state reflects the society in which it is used. The idea of negligence even in contract was a relatively late starter - what does that tell us about the standards of workmanship in that society? What does it tell us if the courts begin to be asked to adjudicate on those sorts of issues?

All in all, therefore, these aren't supposed to be criticisms but an appeal for more.

[Tylorva]

Thanks for the feedback. :)

I would like to revisit some of the historical aspects, as you are right, there is a wealth of material there! I'm currently just trying to give a brief overview of some of the basic subjects. Later on it would be great to come back and devote a whole column to certain aspects (such as punishment - always a fascinating subject!).

The next couple are definitely going to be more modern-focused. But I do have plans to make it varied across all different aspects and time-frames.

Thanks!

Tylorva.

[M. J. Young]

I think, too, that in discussing the various courts, available remedies are a significant factor.

My mind has gone blank on the details of one at the moment, but if I recall correctly, replevin is an act in equity (chancery, in the British terminology) to recover objects wrongfully taken; there is a different action in law for demanding restitution for such objects, trover. The result is if you sue in equity your remedy can only be the return of the object itself, and if that object is destroyed or lost that's the end of the matter. By contrast, if you sue in law you can only demand the value of the object, not the object itself. That distinction still applies in some cases today, and I am pretty sure that there are other situations in which the court chosen impacts the remedies available. That could be another fascinating nuance in legal system oddities.

--M. J. Young

[Nightward]

I think you may mean "Norman" Invaders.

Although what you've got now ("Normal" Invaders) is probably in keeping with the times any way ;)

[committed hero]

The jury's role developed over time. Nowadays, we expect a body of unbiased men and women who will listen to the evidence and decide simply on that. Originally, the jurymen (and they were all property owning men) would have been expected to know the individuals involved and (probably) be aware of what had happened too; there would be no need for evidence at all - just accusation and verdict. Of course, a transient PC is unlikely to be known the jurors and will be at a disadvatage to Bill the Cooper, the complainant.

This has the most potential for fun at the gaming table, given that the makeup of juries today is completely opposite. I can see the players getting nervous already, wondering why the jurors are neighbors of the man whose lycanthropic son their party just slew.....