CRIME AND THE COMPENSATION CULTURE
IN MEDIEVAL ENGLAND
Compensation for victims of a crime is nothing new. The Criminal Injuries Compensation Board (now the CIC Authority) was set up in 1964, but way back in Anglo-Saxon times tariffs of appropriate compensation (known as 'bot' and 'wer'), payments to a victim or his family for wrongs perpetrated against them, were enshrined in the law codes of the period. Rather than representing something being newly imposed (or re-imposed) through legislation, the fact they were written down at this time, the earliest appearing in the leges of the sixth and seventh-century Kentish king, Aethelbert, suggest they were already integral to a customary process, part of a culture, which may itself have had its antecedents in Roman law. We must remember, though, that this culture of actively seeking compensation as retribution for a 'wrong' (normally death or injuries caused to a person) was embedded in medieval society at a time when the experience of courts and of what we think of as 'going to law' itself was very different. Now you will be pleased to learn I do not intend to devote this lecture to a history of the development of the legal system from earliest times to the present day, but in order to approach that world on the correct terms it is necessary to understand how that society functioned and how the legal system operated and to consider how both society and the legal system that served it changed and evolved over the lengthy period that constitutes the Middle Ages.
We should start from the premise that the ideals and duties associated with royal rule were to do justice, promote peace, restrain disorder, punish the wicked and deter violence. We tend to think in terms of the modern state?s power to achieve obedience through coercion and its ability to punish criminals for wrongdoing. The medieval state did not have the degree of centralised authority and coercive power that we take for granted. There was no police force or standing army, no CCTV cameras nor CID. The extent of criminal activity is difficult to measure at the best of times, yet historians of the early and later Middle Ages have noted recurrent failures in the capacity for peace-keeping and regarded an apparent toleration of feud and acts of retribution as signs of weakness in royal authority and failure on the part of the legal system. Measuring by absolute standards and modern day notions of criminal behaviour, no doubt both fail spectacularly.
More realistically, we need to think about the attitudes of medieval people towards the law, the options available to them and the strategies they adopted when they felt wronged. Hypothetically, a dispute might arise for a variety of reasons and be pursued with various motives in mind. While settlement was normally desirable for all concerned, there were various courses of action and sources of assistance open to the victim in doing so. He might decide to take his case to the courts. Hard cases involving complex arguments could be brought before the king himself. Otherwise even in Anglo-Saxon times there was an array of local courts operating at different levels in which a litigant might seek a judicial hearing (from the manorial, hundred and borough courts to the court of the shire). If the victim did take his case to court, there was a possibility that the matter would be settled, but there were problems if the case lacked a clear legal outcome, or it was difficult to gauge strictly who was right and who was wrong. Indeed, some judges may have preferred to recommend compromise in an attempt to achieve the mutual satisfaction of the parties, especially if they were in the invidious position of having to decide between parties in a case that was evenly balanced or for which hard evidence was scarce. If someone was killed or injured it may be that there were differing perceptions of the action that had been taken. It may be that the parties were unable to be fully reconciled or accept any verdict given because of a deep-seated hatred, or differences in power and status. It is tempting to see the courts as a natural panacea, but they were not always the best place to achieve a satisfactory answer or a lasting peace.
Indeed, some litigants may have had no desire to go to law or have felt unable to use the courts. Going to court, therefore, was only one possible option, and not necessarily the easiest, cheapest or most appropriate one.
The wronged individual might require assistance in litigation or in pursuing a different course of action. It was regarded as axiomatic that a party might need to defer to more powerful supporters and there was an expectation that lords or members of a family group would stand by their 'man' and were reluctant to incur shame by abandoning him. Action in a dispute might be taken to redress an alteration in the prevailing balance of power or to highlight the need for a re-adjustment in the power-play through a personal assertion of force. Interpersonal violence, however, should not be viewed in a vacuum. Criminal action (whether the initial wrong or even the threat of violence) was rarely pursed in isolation and could often mark the efflorescence of a more complicated situation, usually one involving property and land.
It was in such instances that Anglo-Saxon society sought to prevent the violence escalating by encouraging compromise. Depending upon his motives, a victim might desire to seek compensation, rather than see the wrongdoer punished physically. The tariffs in the law codes were drawn up and calculated in exceptional detail. The compensation or 'bot' for injuries to different parts of the body depended upon their importance and the degree of injury itself: 50s was payable for a severed foot, but 10s for a big toe, piercing of the nose was 9s, mutilation of an ear 6s, striking out an eye, a hefty 50s; the level of payment for bruising depended upon whether the spot hit had been clothed or not, while there were also special provisions for teeth, fingers and the level of damage to one's genitals. Compensation for killing a person or 'wer' was available in what some historians term 'bloodmoney', and represented the price or worth of the man slain depending upon his social status. In medieval society, standing, honour and reputation counted for much as, too, did the opinion of one's 'peers'. Compensation might be sought not just for financial gain, but in the hope of intangible benefits, restoration of a loss of honour and the need to re-claim 'face', for example, could be strong motivating factors towards compromise.
We tend to associate the phenomenon of criminal compensation solely with the Anglo-Saxon period (perhaps the Anglo-Norman period as well), but certainly not the later Middle Ages (and thereafter for that matter). What is the reasoning behind this? Is it because capital punishment supposedly took over from this system? Is it because we assume in the distant past they were more primitive, the power of the state, weak, the legal system, undeveloped, the resources for policing feuds and violent behaviour, limited or non-existant? Is it because historians have ignored it or sought to mask it in an attempt to show inexorable progress towards the centralised state, the coercive power of the law and parliamentary democracy? Is it because it initially appears in the texts beloved of constitutional and political historians (law codes) and then later largely disappears from view, submerged and then buried under a wealth of other documentary sources? Is it because the Anglo-Saxon society tolerated the feud in a way that other later societies did not? There may be grains of truth in these statements, but they do not fully explain the identification of wergild with the Anglo-Saxon period. The comparative weakness of the king and a supposed inability of the courts to uphold public order and do justice, however, were factors highlighted by certain historians as accounting for the feuds played out in the fifteenth century during the so-called Wars of the Roses. For the late Professor Robin Storey evidence for recourse to arbitration and extra-judicial settlement during this period exemplified royal authority in a state of collapse and the paralysis of the legal system. With this decline in mind, he pejoratively condemned an arbitration award made in 1455 as belonging 'more in spirit to the Anglo-Saxon tradition of weregild than to a country which had known four centuries of law administered by a central judiciary'.
May be the answer lies in pursuing a different angle? What if society hadnot changed significantly in terms of its attitude towards the settlement of disputes, merely the aspirations of the crown and the ambit of the state, the sophistication and reach of the legal system and the uses to which it was put? What if violence, self-help, vengeance and retribution, what ever you like to call it, and the social mechanisms designed to accommodate such emotions and patterns of behaviour, always were accepted possibilities of recourse within what contemporaries regarded as legitimate strategies for dispute resolution, and remained so into the Tudor period, if not beyond?
Although this lecture has as its starting point the Anglo-Saxon notions of and documentation for 'wergild', it is the wider context, chronologically, and the ramifications legally, politically and socially of what the payments represent or imply, that I want to explore during the next forty minutes or so. The three main questions I shall address, therefore, concern, first, the historical location and chronology associated with ?wergild? - was it truly historically specific, limited to the conditions of the age? Secondly, I shall look at the dynamics of the process using various examples from the records - how did it operate and in whose favour (who initiated it, what did all parties including the crown hope to gain, how was the bid for compensation supervised or controlled)? Third and finally, I shall evaluate the underlying implications for the administration of justice - what does the existence (and, as I shall argue, continued existence) of a compensation culture imply about the power of the king and notions of early English justice?
Chronology of Compensation Payments
First, then I shall consider some of the barriers to our appreciation of the longevity and pervasiveness of the payment of compensation to victims of crime. In doing so I would like to suggest that the picture has been skewed through the coming together of various bands of historiographical 'white noise'. Interference has been caused largely by accident rather than design, though perceptions have to an extent become engrained by particular artificial distinctions, false trails and particular agendas. In this, the story tellers, the chroniclers and historians of yesteryear, shoulder much of the blame, on account of their concern for [evidence of progress, sensationalise and demonise the feud etc] Their modern day counterparts are also guilty in some respects owing to the professional demarcation of areas of interest and specialism that can plague an understanding of law and history. Historians tend to gravitate towards select time-periods (Anglo-Saxon, Anglo-Norman, late medieval), lawyers to specialist areas of the law (crime, tort, contract etc). There is thus a danger of compartmentalisation, of not being able to step out of the professional comfort zone. The law and its guardians have always been concerned with logicality and certainty, allied with notions of the developmental progress of the law and its institutions. Aspects of the regulation of social life that do not fit into the logical framework, that cannot be readily defined, or appear to have no rational purpose within a sophisticated legal system are seen as aberrant or backward looking. For many so-called 'Black letter' or doctrinal lawyers, anything that happens historically outside of the courtroom is not their concern. Fortunately, legal historians, though sometimes having a foot in both camps, are freer to range across time-periods and subject specialisms.
A desire for executing manageable tasks engenders parameters, convenient divisions, artificial distinctions and meaningful dates. An obvious division in this respect is the perceived separation of the first and second halves of the eleventh century by virtue of the Conquest. For many, 1066 provides a convenient marker point and a new beginning from which to measure English history, especially because the Norman Conquest essentially marked a significant change in land ownership and notions of lordship and jurisdiction. There have long been debates amongst historians, however, as to how far the Norman Conquest decisively altered governance and the administration of justice through the imposition of new concepts and ways of doing things. The replacement of Old English with Latin as the language of record was one distinct, if cosmetic, move. It was not until the late fourteenth and early fifteenth centuries that the vernacular re-surfaced with confidence in official documents, Middle English (as it is known) having become common in the imaginative literature of Langland and Chaucer during the mid-to-late fourteenth century. Lawyers and historians of the late sixteenth and early seventeenth centuries, men such as Coke and Selden, and other members of the Elizabethan Society of Antiquaries, keenly contested whether there were continuities from pre-Conquest England and looked to the Anglo-Saxon law codes, charters and chronicles to prove for the political agenda of their own day that the history of our constitutional and legal institutions was far older than the Conquest and untainted by Continental influences. Institutional features such as the Witan, the shire courts and the shire reeve (or sheriff) were hailed as the ancestors of parliament and the key agencies of local justice. The Anglo-Saxon period and its laws and practices thus took on a comfortable, rose-tinted hue.
Ironically, Coke, whose Institutes of the Laws of England, was (and to some extent still is) massively influential on lawyers, stumbled on what he thought were the 'Laws of St Edward the Confessor' and the text known as Quadripartitus. His enthusiasm to prove continuities from the Anglo-Saxon past led him to assume that the former were indeed the laws of the canonised eleventh-century king and to draw essential continuities from them. It is now known, however, that the anonymous text purporting to be the 'Laws of Edward the Confessor' is not what it says on the label, but a forgery, a deception on the part of the author, who was in fact elaborating on the law as it was in his own day. The document dresses up the legal situation as pertaining to the twelfth century in order to provide that very sense of comfort in the past and legal continuity that he felt his readers required and that Coke was looking for. Interestingly, while there is not a great deal about it, there is nevertheless a section on 'wer' [12.3] indicating that the system was still in operation in the early twelfth century. The other text he found, Quadripartitus, which contains a treatise on 'Wer' is genuinely tenth or eleventh century and gives a precise procedure for ensuring restoration of peace and payments to the king, the victim's kin and his lord. It in fact provided the basis for the better known so-called Leges Henrici Primi, another product of the early twelfth-century. The Leges Henrici has more claim to represent authentic Anglo-Saxon laws, concentrating as it does on the law code of Canute, but unfortunately, while acknowledging the continued existence of 'wergild' the Leges Henrici plays down the context in which the settlement of disputes outside of the courts traditionally operated, wanting to emphasise the king's dominant position in regulating feuds and achieving peaceful settlement above private initiative or that of lords. A mis-dating of the sources that for several centuries went uncorrected meant that notions of 'bot' and 'wer', were still considered to be a pre-1066, Anglo-Saxon phenomenon, when as I indicated earlier, the sources seem to demonstrate compromise and compensation flourished beyond the Norman Conquest. The Leges Henrici in fact archaicising the law, yet by affording royal leadership and initiative undue prominence in preventing violent retribution, the underlying reality, that 'wergild' continued into the Anglo-Norman period, was obscured.
The illusory effect of these texts was compounded by the influential writings of the notable legal historian Sir William Maitland, who regarded the far-reaching innovations of Henry II and his advisors in the later twelfth century as forming a significant date for the birth of the common law and thus the real history of the English legal system. Many of the Henrician reforms were concerned with new mechanisms to litigate disputes over landed property and so do not concern us directly, but Maitland considered that the criminal law, too, was influenced profoundly by the fact that capital punishment for serious crimes (newly categorised as felonies) had (in his opinion) supplanted the older system and altered the emphasis which previously had been placed on individual action in obtaining compensation. As Maitland himself, put it '[T]he law of wer being no longer applicable if there was felony, perished for lack of sustenance'. As we will see later, though strictly true in a legal sense (although there was never any decree abolishing it), this point of view cannot really be sustained in practical reality over a longer timeframe. The king may have preferred homicides were dealt with in court and punished accordingly, but 'wergild' remained in essence if in more subterranean guise.
The historiography has therefore played a large part in masking the situation for the early medieval period. For the later centuries, however, it has been dogma and the abundance of legal source material that has caused the problem. In marked contrast to the Anglo-Saxon and Anglo-Norman periods where very little official detail on legal cases survives (or was simply never written down), systematic preservation of court proceedings on the plea rolls (from the thirteenth century onwards) and the growth in collections of transcriptions of the arguments used in court (known as 'law reports'), has enabled researchers to focus more closely than was previously possible on the mechanisms of going to court and chart more precisely concomitant developments in the law and legal system. Faced by an opportunity to study the panoply of court proceedings, they have been encouraged to concentrate on the expansion of royal justice, on technicalities and legal definitions, important aspects in their own right, but have done so at the expense of the wider picture, of analysis of the setting of disputes and the relationship of the offenders both to the offence and to contemporary society. Even a concentration on the legal mechanisms themselves has led to emphasis on new upcoming modes of prosecution (such as presentment and indictment) at the expense of considering the continued significance of older forms (such as the appeal of felony). Moreover, the legal language and technical requirements of the cases that survive in the records have generally shorn the complaints not only of their original context, but of their emotions, in particular the anger and resentment that may lie behind many suits.
Contrary to what some historians have professed, the rise of the common law did not lead to the demise of informal methods of compromise. Extra-judicial efforts such as arbitration and forms of out-of-court settlement (evidence for which comes to the fore during the fourteenth and fifteenth centuries, but which had long been an accepted recourse) have traditionally either been downplayed or sidelined as a temporary, transitional phenomenon. While there are occasional mentions in the legal records (normally only if an arbitration floundered and the details had to be rehearsed in court), by very definition extra-judicial settlements were outside their scope and went unrecorded in the plea rolls. Instead, it is in estate papers, memoranda or more ephemeral sources that the documentation of out-of-court settlements must be sought. Petitions to the king in parliament or to the chancellor's 'court of conscience' are also an important window onto what might otherwise be overlooked. A petition to parliament by Hugh Erdswick in 1414, for example, claims that a murderous assault on him by Edmund Ferrers was only prevented by the treaty and mediation of Sir Thomas Gresley, a leading Derbyshire knight. We know from other surviving evidence that these out-of-court settlements often went hand in hand with litigation. As Paul Hyams has demonstrated in his important study Rancor and Reconciliation, the feud and law were not exclusive alternatives, both were an integral part of Anglo-Saxon political culture. So too, I would argue, were they in later centuries.
Indeed, arguably the final sleight of hand that has prevented acceptance of the continued existence of the compensation culture was its relationship with the legal system itself. The immense 'consumer choice' that litigants could be advised upon, coupled with the periodic innovation and experimentation in legal mechanisms and new types of writs that was witnessed particularly during the fourteenth century, encouraged those with disputes to 'play the game' and use the legal system for their own ends. They would not necessarily pursue a case to its conclusion, but threaten and harass opponents by bringing similar complaints in several jurisdictions or by using particularly potent legal agencies (such as oyer and terminer commissions) and raising the stakes with the hope of obtaining an out-of-court settlement that might benefit them more in the long term than the narrow verdict of a court of law. A shift of culture from one that used law comparatively sparingly (if it really was a shift and it is only the presence of legal records that marks it) to one that glorified in litigiousness. Vengeance and retribution were alive and kicking, but were not restricted to physicality, they thrived equally well in the legal arena. The battle ground in the fourteenth and fifteenth century noticeable shifts to the courts and the whole panoply of the legal system. Sophisticated strategies were undertaken that were intended to hurt the opponent financially, logistically and practically, tying him up in writs and red-tape and the possibility of lengthy proceedings, and interminable journeys, travelling to and from Westminster and other parts of the country (if he is required to put in a personal appearance or wishes to monitor the situation in court). Pursuit in different jurisdictions (ecclesiastical, local and central courts) and through criminal and civil actions with all the legal weaponry of a full blown war.
Evidence for a Culture of Compensation
I have outlined some of the ways in which perceptions of the continuation of the wergild system (in actual or attenuated form) beyond the Anglo-Saxon period have been hindered by historians' and lawyers' interpretations and their use of the legal sources. Now I want to put forward my evidence for what I am arguing to be a continued culture of reconciliation and compensation. Given the apparent precociousness of royal justice and its emphasis on punishment for criminal behaviour, how and why was it possible to seek compromise and compensation following the commission of a criminal offence during the Anglo-Norman and later medieval period? The continuation of the culture can be examined first through a form of private prosecution known as the appeal of felony and secondly through the settlement of disputes by arbitration.
The significance of the appeal (not in the sense that we the word 'appeal' today, but a formal recitation of a wrong experienced) lies in the fact that it was essentially a retributive device that offered the wronged individual or members of their family an opportunity to prosecute the offender in the king's courts and thereby secure a conviction and punishment. It was not an accusation based on notoriety or presentment by a jury charged with investigating and reporting offences. It covered serious crimes such as homicide, theft, robbery and rape, and also wounding and could be initiated by in the shire court (or at a lower level) by men or women and would normally be tried by the king's itinerant justices (though it could be brought to the king's notice in his own court, the court coram Rege, later known as the king's bench). The lengthy period that parties could sometimes wait prior to trial may have been a factor in the withdrawal or non-prosecution of suits, and appeals could be quashed on technicalities of a legal nature (such as whether they really amounted to a felony) or because there were discrepancies in the recitation of the events giving rise to the appeal. Trial by battle was the mode of proof (and as a private prosecution requiring proof of the assertion could be invoked even after the advent of trial by jury) and the thought of armed combat may have scared or dampened the enthusiasm of the challenger in some cases.
This was all in theory, but the sheer number of abandoned appeals observable on the rolls strongly suggests that something else was occurring. Compensation, settled out of court, was probably at the root of the practice and seems to have been condoned by the king and his justices, at least in its early years and especially if punishment had been remitted by his grace. Certainly, it was recognised in instances where the killing may have been accidental or if it took place during a fight or a medley, or in circumstances where death was avoided, but wounding took place. In 1235 an appeal of wounding initiated in the king?s bench was dropped when submission to arbitration was agreed (on pain of 100s for default). A hardening of royal attitude during the later twelfth century, including a reluctance to allow compromise (even by licence), nevertheless coincides with the opportunity for the offender to obtain a pardon instead and in fact early pardons insisted on the offender making reparation to his victim or their family.
While the heyday of the appeal of felony was the twelfth and thirteenth centuries, the private prosecution in spite of a gradual decline remained an option to victims and their kin in the fourteenth and fifteenth centuries (and considerably beyond). Even if, theoretically, compromise was not allowed if an appeal had been launched, the number of unprosecuted appeals points towards a continued desire for compensation along wergild lines. The appeals that are mentioned in the plea rolls are of course only the ones actually initiated rather than threatened, which was a tactic that could be used to induce an unwilling opponent to come to terms. Where the appeal was prosecuted (perhaps because acceptable terms could not be reached or settlement was deliberately avoided) there were still legal exceptions that could be argued, but the evidence is that generally the offender was convicted and duly received punishment of life and limb. The majority of appeals launched in the later medieval period, however, never reached a judicial conclusion and were left unprosecuted (the appellor seemingly willing to pay the fine for not doing so, presumably because it was a small sum in comparison with whatever compensation might be obtained). The sum seems to have been heavier in the early thirteenth century as a deterrent against seeking compromise though the substantial sums charged may have been accepted in order to help line the king's coffers. Whatever the legal niceties may have been, the desire for pecuniary compensation remained strong.
This behaviour can be directly associated with the desire for compromise and a more holistic stance taken on the situation giving rise to violence. Two instances (in particular) can be observed in the long running feud between the Pierpoints and the Foljambes. Following an altercation in 1434 that resulted in the maiming of Henry Pierpoint and the death of his brother-in-law, Henry Longford and another associate, William Bradshaw, appeals were lodged against the Foljambes in the court of king's bench, though indictments had in fact been brought against both parties for a number of assaults. As a result of submitting to arbitration, an award was made, following which the appeal against Foljambe seems to have disappeared from the records (presumably left unprosecuted). Similarly, in later arbitration proceedings of 1462 between the two families, following another murderous altercation, the terms of the award as well as fixing compensation for past acts of violence, specifically instructed that the latest appeals lodged by both parties that were pending in the court of kings bench were to be abandoned. On the last day of which the award was returned, both Thomasia Pierpoint, whose husband Henry had been killed by John Greene, and Richard Grene, whose brother John had been murdered by Pierpoint's brother, presumably in retaliation, paid the half a mark levied for their failure to pursue their appeals.
The award survives for the Bruyn-Gatacre arbitration of 1427, which concluded a dispute that had seen the death of a certain Roger Lockwood shot by an arrow allegedly from the bow of one of Bruyn?s men, during a fracas between supporters of the two in southeastern Shropshire. Although Lockwood?s widow had initiated an appeal of felony, since the appeal itself could only determine culpability and the punishment (usually death) of the offender, it is more likely that it was launched to induce Bruyn to come to terms. A more flexible and informal settlement in which a whole series of mutually beneficial acts could be put forward and agreed upon (as indeed occurred) was likely to serve as a more successful basis for peace, rather than create further antagonism.
As these examples demonstrate, the culture of compensation can be discerned in the later Middle Ages in the multifarious evidence for out of court settlements secured through mediation, negotiation and arbitration. As Dr Edward Powell, has shown, the beauty of these procedures was that although they existed alongside and were complementary to the law, they were largely independent of the courts and, as had been the case in earlier times, could aspire to broker settlements thereby quelling feuds, making peace and restoring harmonious relations between erstwhile antagonistic neighbours in ways that the courts could not hope to. While such efforts were not always successful and inevitably negotiations sometimes broke down and violence erupted once more, there were definite attempts made by various local communities to contain disputes and try and reconcile the feuding parties.
Of significance in this respect are the ways in which the arbitrations were brokered and the type and standing of the personnel actively involved in this, but also the arbitration awards themselves, where available, since it is here that the extent and precise elements of compensation can be discerned. While the monarch was the ultimate arbiter and peacemaker, and on occasion played an important role in mediating the disputes of those of high status, great lords had a special interest in settling quarrels within their own territorial regions or spheres of influence. Great lords or bishops as heads of affinities and clientage networks were particularly in demand to act as impartial umpires in disputes between gentry families, while the parties were each entitled to choose representatives to treat for them. Although judges and lawyers were sometimes chosen as arbiters, they were usually drawn from the locality involved, which underlines the local knowledge and relationships that featured in arbitrations.
The 1455 dismissed by Professor Storey, exemplifies the attitudes towards compensation that pertained in the mid-fifteenth century. It is signed H. Buckingham, by Humphrey, duke of Buckingham and survives among the muniments of the Gresley family. Buckingham presided as umpire over the award between Sir John Gresley and Sir William Vernon which is notable for its concern for compensation to the victims of violence inflicted during the course of their dispute. It first stipulated that sir willliam and Sir John shall be complete friends and of friendly dealing and pardon and each put aside all grudges against the other and any rancour of the heart. Neither of them shall vex, trouble or pick quarrel with any cousin, friend, servant, tenant or wellwisher of the other concerning past matters or quarrels that the same Sir William and Sir John had. Buckingham then made it clear that he was available to deal with any grievances should they arise in future. Sir William was to pay Anne, formerly the wife of John Herte, who was killed at Burton by his [Sir William?s] servants 20 marks, to be given for the soul of her late husband and for the relief of Anne and her children in even amounts at Christmas and Lammas (1 August). Sir John in turn was required to pay for the benefit of Thomas Webbe, a tenant of Sir William?s who had been maimed and injured by Sir John?s servants, 13s 4d (1 mark) for a severe wound to the head, and the same again for a serious wound to the face, and 6s 8d (half a mark) for six other wounds and 100s for an injury to his left thumb.
Compensation did not only amount to making amends financially. It could look to the future and attempt to make things better morally and spiritually. Spiritual benefits, such as offering prayers for the deceased's soul or funding a relative of the victim in religious orders were possible alternative or additional forms of redress. In the late twelfth century, Sir Simon of Stanstead, for example, was willing to fund three masses a year for the soul of Julian fitz William in recompense for his death and feed a poor person for the duration of his own life. He also promised to donate a valuable parcel of land to the Hospitallers. Similarly, in the Bruyn-Gatacre arbitration of 1427 both sides were ordered to contribute £4 to the maintenance of a chaplain (to say prayers) in recompense for the death of Roger Lockwood. There are also instances where the perpetrator went off on pilgrimage, either because he went of his own volition in true remorse, willing to undertake the journey as a penance, or because he was advised to (or had impressed upon him that he should avoid violence) absent himself from the community (and thus take the heat out of the situation and regain 'face') in a suitably abject and penitential manner. A case from 1207 bears this out. Herbert of Patsely, who had brained Drew Chamberlain and then stabbed him for good measure causing his death, was facing a duel, having been appealed by Drew?s brother John. While awaiting the king's justices, a local notable, Thomas of Ingoldisthorpe, who had served on juries with one of Patsley's relations, must have brought about a mediation as a result of which it was arranged that Herbert would go to Jerusalem within 40 days, and remain there for seven years for the benefit of Drew's soul. Ingoldisthorpe was to fund one of Drew's kinsmen to become a canon or monk in the nearby monastery and there were also payments to be made in instalments amounting to 40 marks (presumably in reparation for the death).
Marriage could play an important part in securing compromise since it was an institution that could be resorted to without obvious loss of face. A marriage alliance worked on two levels: it could unite or at least join together two estranged families; it could also aspire to prevent future quarrels and a build of animosity between families. Although there were dangers that a politically inspired peace might nevertheless be fragile and little more a veneer, especially if personal and sexual jealousies undermined the harmony of the alliance, the newly forged social ties aimed to transcend family groupings, engender a new unity and heal strife.
Honour was still a significant component in reaching a settlement and what in modern parlance is called 'closure'. Restoration of social ties and symbols of friendship were an element of this. In the Bruyn-Gatacre dispute one of the issues may have been an unsuccessful attempt on the part of Gatacre to gain favour with lord Ferrers of Groby since of the requirements in the award was for Bruyn and Thomas Ashton (a gentleman from Croby in Leicestershire) to do their utmost to secure the good lordship of lord Ferrers on Gatacre's behalf. Following successful negotiations in 1428 that brought an end to a twenty-year dispute with Burton Abbey, Sir John Bagot was granted a 20s annuity by the abbey as a token of friendship and opened the way for further amicable association. Embedding compensation in public acts intended to extirpate[check meaning] any remaining shame attached to the deed was also an important consideration and a means of avoiding any further nuisance. Public humiliation was one such way, but had to go hand in hand with some sort of exculpation for the wrongdoer, either by way of pardon or declaration that all ills were forgiven. Pardon required a suit of peace, acknowledgement in court, while following a mark of a successful arbitration was the mutual release of the parties from all actions pending in the courts.
Public reconciliation was equally a method of achieving 'peace with honour'. Rituals such as exchanging a kiss of peace in public or the parties being seen enjoying a drink in the tavern or having a meal together (usually at the wrongdoers expense) fulfilled the final stage of reconciliation outlined in the tenth-century treatise 'Wer' and were common as signs of amicable relations in the later Middle Ages as they were in the Anglo-Saxon period (and still have a symbolic resonance today). In 1411 when one of the king's judges, Robert Tirwhit, offended William, Lord Roos by reneging on the terms of an attempt at mediation between the two (by coming to the arbitration flanked by a large body of armed supporters, considerably more than his opponent), Tirwhit was forced to make a public apology, re-submit to arbitration and then on the conclusion of negotiations deliver two tuns of Gascon wine to Melton Ross, (Lord Roos' estate), and bring to the same place two fattened oxen and twelve fattened sheep to be eaten at a dinner arranged for the parties. In return Lord Roos was expected to openly forgive Tirwhit and his supporters in full view of everyone attending the dinner.
Perceptions of Royal Justice
Looking at the subject in a wider context, what does the prevalence of out-of-court-settlement and the desire for compensation in its various forms reveal about early English justice?
Much of our understanding hinges on perceptions of the king's role and the assumption that control and centralisation together with clearly articulated ways and means of underpinning royal authority to uphold law and order were paramount aims and ambitions. The concern about compensation and the detailed tariffs appear to be enshrined in the law codes of various Anglo-Saxon kings (and their regional pre-cursors). Yet we should not regard these law codes as legislation in the modern (or later medieval) sense, as something handed down by benevolent monarchs. It has been established by historians of the period, notably the late Patrick Wormald, that these texts espoused customary practice and ideals to form in effect treatises on kingship. In other words they form a mixture of what was occurring naturally and what was thought ought to be in place elevated to appear as if they were the edicts of kings. Moreover, each text was re-visited by subsequent writers, selections made and a certain 'spin' put on it, often emphasising the power and authority of the king. Whether it was in accord with an actual increase in royal control or not, the perception of an advance in royal jurisdiction from the twelfth century onwards in tandem with an obvious growth in the scope of royal justice and an emphasis on procedure, coupled too with the demand for punishment (which was always there, but not in the foreground), makes for comparisons as a more precocious and complex legal system, but not necessarily a better one. We should avoid making value judgments on legal developments and we should not view such developments in the administration of justice in terms of a purely linear progression since to do so implies that wergild is a characteristic of a less advanced system.
Wergild was the product of a particular society. It was also an enlightened response to a social need: dealing with the problem of a breakdown in social relations that gave rise to disputes (especially family feuds) by preventing or managing vengeance. It is clear from history (and not just its manifestation in the fifteenth century) that the social need did not go away and in spite of royal attempts to monopolise the settling of disputes (and try and deter violence) within the framework of the legal system, the tradition (preference even) of extra-judicial settlement remained. Its continuance (and the legal system?s continued ability to accommodate it) demonstrates an acceptance that there will be serious breakdowns in social relations, but an acknowledgment that the ability to get people around the table and offer compensation for wrongs inflicted can produce a win:win situation amenable to all parties.
My contention is that notions of compensation for victims of crime were extremely deep-rooted in the fabric of medieval society, one that was well aware of the emotive power and physical effects of vengeance and retribution, but equally acknowledged they took their place within a continuum that also included concepts of peace, honour and respect; and that in spite of the illusions and distortions to the contrary the desire for compensation remained a significant feature both of initiation and settlement of disputes; that far from being evidence of a primitive or dysfunctional legal system they attest to its sophistication and flexibility in the ability to absorb and accommodate war-like and disruptive tendencies, channelling them into litigation and/or arbitration accordingly; while they may betray the limitations of royal power and the inherent weakness of the coercive and centralising desires in the medieval state, they equally underline some of society's innermost strengths, notably the pervasive of ties of family and affinity, of kinship, friendship and lordship.
J. Hudson, The Formation of the English Common Law (London, 1996)
N. Hurnard, The King's Pardon for Homicide to 1307 (Oxford, 1969)
P. Hyams, Rancor and Reconciliation in Medieval England (Ithaca, NY, 2003)
A. Musson, Public Order and Law Enforcement (Woodbridge, 1996)
A. Musson, Medieval Law in Context (Manchester, 2001)
A. Musson (with W. M. Ormrod) The Evolution of English Justice(Basingstoke, 1999)
A. Musson (with E. Powell), Crime, Law and Society in the Later Middle Ages
E. Powell, Kingship, Law and Society (Oxford, 1989)
P. Wormald, The Making of English Law (Oxford, 1999)