History of Legal Procedure in United Kingdom
The procedure adopted in litigation in Anglo–Saxon and Norman times was similar in essentials in all three classes of tribunals, and differed materially from the practice of courts of law at the present day. Some knowledge of the more glaring contrasts between ancient and modern procedure will conduce to an understanding of several obscure provisions of Magna Carta.
Legal Procedure in the Early 20th century
Avoiding technical language, and eliminating special procedure peculiar to any one court or country, the principal stages in litigation in an early 20th century court of law may be given briefly as follows:
(1) On the complaint of the party aggrieved a summons, or writ, was issued by an officer of the Court. Proceedings were opened by the command addressed to the defendant to appear in Court and answer what was alleged against him.
(2) In the usual case each party lodged written statements of his facts and pleas—that is, of the circumstances as they appear to him (or such of them as he hopes to bring evidence to prove)—on which he found his claim or his defence, and of the legal principles he intended to deduce from these circumstances. When these statements of facts and pleas had been revised and adjusted, the complete data were before the Court; each party had stated what he considered essential to his case.
(3) Proof is, in due course, led; that is, each party is afforded an opportunity of proving such facts as he has alleged (and as require proof through the denial of his opponent). This he may do by documents, witnesses, or oath. Each party had the further privilege of shaking his opponent’s evidence by cross–examination.
(4) The next important stage was the debate, the main object of which was to establish by legal arguments the pleas founded on; to deduce the legal consequences inherent in the facts which had been proved.
(5) Finally, the Judge gave his decision. He had to determine, after weighing the evidence led by either party, what facts had really been established, and how far the various pleas of plaintiff and defendant respectively were implied in these facts. Reasoning of such a kind as can be successfully performed only by a trained legal mind is thus necessary before the final decree or sentence was able to be pronounced by a Judge in an early 20th century court of law.
Legal Procedure in the Feudal times
A trial in Anglo–Saxon and early Norman times stands in notable contrast to all the above in its stages and procedure, and even more in the spirit which pervades the whole. Thus, the proceedings, from first to last, were purely oral, there being no original writ or summons, no written pleadings, no record kept of the decision except in the memories of those present.
The functions of “the Judges” were entirely different, and called for no previous training, since they were not required either to weigh a mass of evidence or to determine the bearing of subtle legal arguments, but merely to see fairplay, and to decide, according to simple rules, well established by centuries of custom, by what test the allegations of plaintiff and defendant were respectively to stand or fall.
Finally, the arrangement of the stages of the litigation was entirely different: it is with something of a shock that the modern lawyer learns that in civil and criminal causes alike “judgment” invariably preceded “trial.” Reflection will convince him that each of these words had in the Middle Ages a meaning different from what it bears to–day. That this is so can be best understood by following the stages of the old procedure.
(1) The initial difficulty was to obtain the presence of the defendant in Court, since there existed a strange reluctance either to compel his attendance or to allow judgment to pass against him by default. No initial writ was issued commanding him to appear; almost endless delays were allowed.
(2) When both parties had been, after many adjournments, actually brought face to face before the Court, the statements alike of the claim and of the defence were made verbally and in set formulae, the slightest slip or stumble in the words of which involved complete failure. This is merely one illustration of the tremendously formal and technical nature of early legal procedure, a trait common to all primitive systems of jurisprudence.
(3) Before the plaintiff could put the defendant on his defence, he required to show some presumption of the probability or bona fides of his case. This he usually did by producing two friends ready to substantiate his claim, known sometimes as his “suit” (Latin secta), or his “fore–witnesses.”
Their testimony had no reference to the particular facts of the case; it was not weighed against the “proof” afterwards led by the defendant; its object was merely to warrant the Court in demanding “proof” from the latter at all. Sometimes no fore–witnesses were required; for example, where the claim was for restoration of stolen cattle, traced by “hue and cry” to defendant’s house or byre. The presumption was here so strong as to render corroborative evidence unnecessary.
(4) Then came the judgment or “doom,” which partook in no respect of the nature of the judgment of a modern tribunal. It came before the proof or trial, not after it, and was therefore called a “medial” judgment. It consisted in decreeing whether or no, on the strength of the previous procedure, the defendant should be put to his proof at all; and if so, what “proof” should be demanded.
Now, the exact test to be appointed by the court varied somewhat, according to circumstances, but long–established custom had laid down with some exactitude a rule applicable to every case likely to occur; and, further, the possible modes of proof were limited to some four or five at the outside. In Anglo–Saxon times, these were mainly compurgation, ordeal, witnesses (whose functions were, however, widely different from those of witnesses in modern law), and charters.
The Norman Conquest introduced for the new–comers, a form of proof previously unknown in England—“trial by combat”—which tended, for the upper classes at least, to supersede all earlier procedures. The “proof,” of whatever kind it might be, thus appointed by the “judges” for the defendant’s performance was technically known as a “law” (Latin lex) in the sense of a “test” or “trial” or “task,” according to success or failure in which his case should stand or fall.
To pronounce a “judgment” in this sense was a simple affair, a mere formality in the ordinary case, where room for dubiety could hardly be admitted: thus it was possible for “judgment” to be delivered by all the members of a feudal court, or all the suitors present at the hundred or shire–moot.
(5) The crucial stage, this “trial” which thus came after “judgment,” consisted in one party (usually the defendant) essaying, on the day appointed, to satisfy the court as to the truth of his allegations by performing the task or “law” which had been set or “doomed” to him. When this consisted in the production of a charter, or of “transaction witnesses” (that is, the testimony of those officials appointed in each market–town to certify the conclusion of such bargains as the sale of cattle), it commends itself readily to modern approval.
More frequently it took the form of “an oath with oath–helpers,” the plaintiff bringing with him eleven or twelve of his trusty friends or dependents to swear after him the words of a long and cumbrous oath, under risk of being punished as perjurers for any slip in the formula. Sometimes the decision was referred to the intervention of Providence by appealing to the ordeal of the red–hot iron or the more dreaded ordeal of water.
After the Norman Conquest, the trial in all litigations between men of high rank, took the form of duellum or legally regulated combat between the parties. The defendant gained his case if he caused the plaintiff to own himself a “craven,” or if he held out till nightfall against the plaintiff’s attempts to force him to utter that fateful word.
This earlier form of “lex” or trial (which is referred to in several clauses of Magna Carta) was thus entirely different from the modern “trial.” It may be said without exaggeration that there was no “trial” at all in the current meaning of the word—no balancing of the testimony of one set of witnesses against another, no open proof and cross–examination, no debate on the legal principles involved. The ancient “trial” was merely a formal test, which was, except in the case of battle, entirely one–sided.
The phrase “burden of proof” was inapplicable. The litigant to whom “a law” was appointed had rather the “privilege of proof,” and usually won his case—especially in compurgation, and even in ordeal if he had arranged matters properly with the priest who presided. In one sense, the final “trial” was determined by the parties themselves, or by one of them; in another and higher sense the facts at issue were left to Providence; a miracle, if necessary, would attest the just claim of the innocent.
The essentials of this procedure were the same in Norman as in Anglo–Saxon England, and that in all three classes of tribunals—popular, manorial, and royal courts. These stages of procedure are fully illustrated by recorded cases. Two of these, both from the reign of John, may here be cited:
(1) “Hereward, the son of William, appeals Walter, the son of Hugh, of assaulting him, in the King’s peace, and wounding him in the arm with an iron fork, and giving him another wound on the head; and this he offers to prove on his body as the Court shall appoint. And Walter defends all of it by his body. And it is testified by the coroners and by the whole county that the same Hereward showed his wounds at the proper time, and has made sufficient suit. Therefore it is decreed that there should be ‘battle.’ . . . Let them come armed, a fortnight from St. Swithin’s day, at Leicester.” Sel. Pleas of Crown (Selden Society), p. 18.
(2) “Walter Trenchebof was said to have handed to Inger of Faldingthorpe the knife with which he killed Guy Foliot, and is suspected of it. Let him purge himself by water that he did not consent to it. He has failed and is hanged.” Ibid., p. 75.
Two innovations the Normans did make; they introduced trial by combat and “inquisitio.” Among the prerogatives of the Norman Dukes was this right to compel the sworn evidence of reliable men of any district—men specially picked for the purpose, and put on oath before answering the questions asked of them. This procedure was known as inquisitio (or the seeking of information) from the point of view of the government making the inquiry, and as “recognition” (or the giving of information) from the point of view of those supplying it.
This device was capable of endless extension to new uses in the deft hands of the Norman Kings. William employed it in compiling Domesday Book; while his successors made it the instrument of experiments in the science of taxation. It has a double claim to the interest of the constitutional historian, because it was one of the influences that helped to mould our Parliamentary institutions; and because several of the new uses to which it came to be put had a close connection with the origin of trial by jury. The “recognitors”, indeed, were simply local jurors in a rude or elementary form.
- Bigelow, Melville M. History of Procedure in England From the Norman Conquest. The Norman Period (1066-1204). Boston: Little, Brown, 1880. Also available online in HeinOnline (subscription databases)
- Dawson, John P. The Oracles of the Law. Ann Arbor: University of Michigan Law School, 1968.
- Turner, Ralph V. The English Judiciary in the Age of Glanvill and Bracton, C.1176-1239. Cambridge: Cambridge University Press, 1985.
- Turner, Ralph V. Judges, Administrators and the Common Law in Angevin England. London: Hambledon Press, 1994. ISBN: 185285104X
- Turner, Ralph V. The King and His Courts; the Role of John and Henry III in the Administration of Justice, 1199-1240. Ithica, N.Y.: Cornell University Press, 1968.