William R. Jones

title.none: Bellamy, The English Criminal Trial (Jones)

identifier.other: baj9928.9904.013 99.04.13

identifier.issn: 1096-746X

description.statementofresponsibility: William R. Jones, University of New Hampshire,

publisher.none: .

date.issued: 1999

identifier.citation: Bellamy, J. G. The English Criminal Trial, c. 1300-1600. Toronto: University of Toronto Press, 1998. Pp. 208. $34.99. ISBN: 0-802-04295-3.

type.none: Review

relation.ispartof: The Medieval Review

The Medieval Review 99.04.13

Bellamy, J. G. The English Criminal Trial, c. 1300-1600. Toronto: University of Toronto Press, 1998. Pp. 208. $34.99. ISBN: 0-802-04295-3.

Reviewed by:

William R. Jones
University of New Hampshire

John Bellamy's most recent contribution to medieval legal history is an account of the organization and operation of the English criminal trial from the late thirteenth to the late sixteenth centuries. He focuses on four major aspects: the development of the accusatory procedures of appeal, presentment and indictment; the historical definition of the principal felonies of murder and manslaughter, robbery, burglary, theft and rape; the reason for the "verdict revolution" in conviction rates from the early fifteenth to the late sixteenth centuries; and the contrast between conviction and actual punishment. A longitudinal study such as this must necessarily incorporate both a synthesis of modern scholarship and original research in order to fill in the gaps.

Contrasting the greater attention paid by historians to the trial process with their relative neglect of the mechanics of accusation, Bellamy emphasizes the importance of the latter in influencing the outcome of individual trials and for determining the crime rate generally. Appeal of felony by a private party or group had a long history which, because of its value as a means of retribution and its promise of success, extended to the Elizabethan era. The alternative method of accusation, represented by the jury of presentment, obliged jurors to reply to articles of inquiry concerning their knowledge of crimes and trespasses committed locally. There is evidence, however, that as early as the thirteenth century some jurors were submitting complaints of their own and by the fourteenth century these complaints in the written form of bills of indictment superseded alternative methods for arraigning suspected felons in King's Bench, before the justices of the peace and oyer and terminer and especially in the preeminent criminal court of gaol delivery and assize. In the course of his narrative Bellamy reexamines the evidence and conflicting interpretations of it regarding the origin of the bill of indictment, the parallel development of the action of conspiracy whereby persons acquitted of felonies could retaliate against their accusers and the examination by justices of persons who had been arrested but not formally accused; and he describes how the case for conviction was strengthened by the testimony of victims or their kin, witnesses, knowledgeable local officials and by activist royal judges who passed on to indicting juries information gleaned by examination of suspects. Confessions of "approvers" who had been accused and even convicted of felonies exposed their fellows in crime to arraignment; and the bills of indictment were sometimes "afforced" by clerks of the court who employed provocative rhetoric to increase the apparent heinousness of the charge and thereby heightened the likelihood of conviction. The effect of this "prosecuting zeal" was to transform the process of accusation into virtually "a preliminary trial or a trial within a trial" (p.48).

Intervening between the chapter on accusation and a chapter describing the criminal trial and the incidence of crime during the late middle ages and the Tudor period, Bellamy includes a discussion of the nature and scope of the major felonies of murder and homicide, robbery, burglary and grand theft. Because of its low incidence the felony of rape-abduction is relegated to a long appendix. During most of the middle ages felonies were regarded as capital crimes and therefore unamendable; and in heinousness they ranked below treason but above misdemeanor and trespass. Some of them such as robbery, burglary and rape had been defined as "common law" crimes as early as the Anglo-Saxon period; others were placed among the felonies by legislation of Edward I and his successors. Because of the ambiguity of some of these crimes Bellamy had to go beyond contemporary textbook definitions to recover their meaning and scope from court rolls, trial reports and royal pardons. "Murder" had been distinguished from other kinds of felonious killing or "homicide" in the Norman era as a particularly repulsive crime characterized by stealth and secrecy. "Cold blooded" murder which exhibited malice and premeditation was contrasted with "hot blooded" killing resulting from "chance medley" and abrupt confrontation. Grand larceny, which involved the illegal taking of goods of a value of twelve pence or more, had been distinguished as early as the Norman era as a "secret" crime different from the "violent" felonies of robbery and burglary to which the value of the property taken was irrelevant. Sexual assault had been combined with the abduction of the woman in Anglo-Saxon law to constitute an "amalgam" which during the later middle ages was often employed to preserve male dominance of marriage and the inheritance of property within the ranks of the gentry. Finally, there were a number of lesser felonies which because of their low incidence Bellamy relegated to an appendix: arson, counterfeiting, breaking prison, unwarranted purveyance, the illegal export of wool, theft of charters and deeds, violation of the Statute of Provisors and sorcery and witchcraft.

In a chapter on fluctuating conviction rates Bellamy tried to account for their decline from the early fifteenth century to the middle of the sixteenth century followed by a dramatic rise in the later Tudor period, a reversal which constituted a veritable "verdict revolution" in criminal justice history. "The change from a conviction rate of say just over one in three of persons accused to nearly two out of three, must surely have amounted to a virtual revolution in criminal law administration. In the later middle ages the person arraigned for felony could reckon on having a good chance of acquittal; in the later sixteenth century he probably knew he was likely to be convicted" (pp.95-96). Late medieval conviction rates had been low as a result of a conservative "consensus" among royal judges, and these declined even further after the Black Death (although Bellamy did not explain why), reaching a low point in Henry VI's reign (l422-6l). Subsequently the number of convictions increased dramatically during the later Tudor period. Since Bellamy detected no evidence of intervention by the crown, he attributed this phenomenon to changes in trial procedure. Many of these innovations in the process of arraignment had been cited in the context of the author's discussion of the accusation of felons: the "overlap" of trial jury and indictment jury, the purchase of a more sympathetic jury, the testimony of victims and witnesses, the examination of suspects and petitioners by aggressive royal justices and the monitoring of cases by Star Chamber and other conciliar bodies. Even inflation had the effect of increasing the severity of prosecutions for theft. Because of the absence of contemporary commentary Bellamy's analysis of these causative factors in the decline and rise of conviction rates is unavoidably tentative. But he is quite right in noting the importance of this change as "one of the very few features which truly distinguished life in early modern England from that in the late medieval period" (p. 96).

In a final chapter on the "aftermath" of the criminal trial Bellamy examined the means whereby convicted felons might avoid capital punishment. Benefit of clergy was available to members of the clerical profession, but judges and parliament had hedged the privilege with a variety of restrictions, and an Elizabethan statute virtually eliminated it by requiring the branding of convicted clerks. Throughout the middle ages royal pardons, both special pardons acquired by petition or purchase by family, friends or patrons on behalf of an individual, and general pardons awarded by king and parliament in commemoration of some important event, served to protect convicted felons from sentence of death. During the late middle ages imprisonment was adopted as a punishment for some kinds of crime, but it was seldom applied to felony. In any event, a discrepancy prevailed during the late middle ages between the number of convictions and the actual punishment of perpetrators; and although both convictions and punishments tended to rise in the sixteenth century the protection afforded by benefit of clergy and royal pardons continued to limit the number of felons who went to the gallows.

Anthony Musson published in l996 a monograph which covers the earlier part of Bellamy's period, that extending from the cessation of the general eyre in 1294 to the outbreak of the Black Death about 1350. [1] Neither historian seemed aware of the other's work and, although they asked similar questions of the same body of evidence, they produced strikingly different answers. In contrast with Bellamy's quantitative approach to criminal justice history, Musson applies a "qualitative" method which denies the reliability of accusations and convictions, rejects a fixed notion of right and wrong, and regards litigation as a part of the process of dispute resolution practiced among the gentry of premodern England. Whereas Bellamy devoted a chapter to the analysis of the historical definition of the felonies, Musson denied that "crime" constituted an absolute entity susceptible to calculation and statistical comparison. Bellamy was aware that many of the trespasses and felonies for which appeals and indictments appear in the court rolls were played out against the background of the struggle for dominance and the "land wars" among the families of gentry. On the other hand, Musson warns against exaggerating the apparent lawlessness of rural England by equating its "litigiousness" with anomic violence. In fact, he asserts that the more frequent resort to the criminal courts and the rise of accusations and prosecutions may have resulted from the heightened efficiency of legal administration and its growing reputation for impartiality. Bellamy characterizes the attitude of the government toward crime as "casual", and he observed that it seldom became a "national issue". The judges were unenthusiastic about their criminal jurisdiction, which was less remunerative than their civil work; and as a rule kings did not intervene in the administration of criminal justice. Musson took a broader and subtler view of politics which he said was "inseparable" from the law. The dispensing of the king's justice was itself an obligation and a right of sovereign authority. It constituted an item of the royal agenda and was central to relations between the center and the localities.

In conclusion, Bellamy's book is very much a work for specialists. Its sparse endnotes to individual chapters and the absence of a bibliography limit its usefulness to the general reader and conceal the author's firm grasp of the latest scholarship and his extensive knowledge of the contents of the Public Record Office. Nevertheless, it represents a mature work of a master of the field and a welcome contribution to the bibliography of English criminal justice history.

[1] Subtitled The Local Administration of Criminal Justice, 1294-l350 (Woodbridge, Suffolk: The Boydell Press, l996).