Читать книгу This Little Britain: How One Small Country Changed the Modern World - Harry Bingham - Страница 22

In 1154, England acquired a new king: Henry II.

Henry, grandson of William the Conqueror, was about as English as saucisson and baguettes. Not being English, he also had a very un-English drive for centralization and order. He put the barons in their place, knocking down any castles that hadn’t obtained regal planning permission; he streamlined the tax system; he overhauled record-keeping; and he turned his attention to the courts.

From Anglo-Saxon times on, England had enjoyed the most developed state apparatus in Europe, including a set of shire and local ‘hundred’ courts. These courts did their job, up to a point. The laws they applied were mostly unwritten, customary hand-me-downs, passed from one generation to the next. The methods of trial were somewhat confused, being a mixture of the traditional trial-by-ordeal and the newfangled trial-by-jury, or indeed, sometimes by a hybrid of the two. If this was confusing, then so too was the law itself. The lack of clear central control meant that the law in Exeter represented something different from the law in Carlisle. No one had ever experienced or expected anything else, and the system worked at least as well as it did anywhere else, and quite likely a fair bit better.

Yet Henry wasn’t a king willing to put up with anything so ramshackle. Legal disputes had a habit of ending up with the king himself. Although a court system existed, Henry could hardly delegate authority to it with a great degree of confidence that the system would actually deliver the effects expected of it. In place of those variable, regional, hard-to-control courts, he therefore instituted a new system of royal judges who roved the land, dispensing justice. The new judges combined local reach and royal power. Although justice came to the people just as it had always done, it now came with explicit royal authority and, particularly on the civil side, a common set of procedures and practices. No other European country had such an advanced or complete system. It was an English first.

Yet the reform was a partial one, all the same. The courts had certainly been shaken up but, in terms of criminal proceedings, neither the laws nor modes of trial were much affected. Jury trial continued slowly to displace those trials-by-ordeal, which had been falling out of fashion not just in England but elsewhere. (And to begin with juries were asked only to decide questions of fact, not those of guilt or innocence. These things develop slowly.) The laws enforced were the same hand-me-downs as before. Yet no one argued for more radical reform. Back in twelfth-century England, no one was expecting or asking for any more—indeed, there wasn’t even a concept of what ‘more’ might be. So Henry left the system to bed in, while he rushed off to do other things, such as have Thomas à Becket chopped to pieces in Canterbury Cathedral.^*

For the English, the period of radical change was over. For Europe, it was only just beginning. European monarchs faced the same problems as Henry, but they came up with a sharply different solution. Scholars at the Continent’s first true universities began to blow the dust off old Roman codes of law, and they liked what they saw. Roman law looked like the real deal: a universal law code; formal rules of evidence; professional judges—and the whole thing sanctified by its posh Roman origin.

The ‘new’ Roman codes swept across the Continent like wildfire. In places like Sweden and northern France, where jury trials had once been used, such outmoded things were swept aside in the modernizing rush. And why not? The new Roman model was logical, scholarly, professional and modern. The system that had evolved in England looked rustic, antiquated, lowbrow and embarrassing.

But which was better?

Roman law contained one very liberal-sounding provision. In the effort to avoid false convictions, an accused man could only be convicted if (i) he made a full confession, or (ii) there were two sworn eyewitnesses to the crime. The provision sounded surprisingly liberal for the age, but it concealed a nasty catch. On the whole, criminals weren’t so monumentally stupid as to commit their crimes in the presence of two eyewitnesses, so, in most cases, the only route to conviction was via confession. But who would be so stupid as to confess? No one, of course—unless inducements were put in their way, and the inducement of choice was torture. In effect, Roman law was a law of torture. An entire jurisprudence of torture was concocted. Who could be tortured and for how long, by what methods, for which crime? Answers needed to be found to such questions—and were. Torture remained commonplace for centuries, lasting well into the eighteenth century.

Meanwhile, England had no torture. It was unknown—indeed, forbidden—under the common law. It was down to juries to determine guilt or innocence, on the basis of evidence and common sense. The consequences of this difference are simply enormous. First, there’s quite simply the question of obtaining verdicts that made sense. A thirteenth-century English court was no doubt a pretty rudimentary place but, if you stood in the dock, you could at least rely on the fact that you were being judged by twelve ordinary blokes, sworn to a standard of truthful enquiry, considering matters on the basis of ordinary reason and evidence. On the Continent, by contrast, guilt or innocence was determined mostly by the accused’s capacity to resist torture. Hardened criminals with strong nerves could escape scot-free. The innocent with weaker nerves would be tortured, then convicted. Furthermore, whether or not guilt was ever determined, the accused had already been punished, in one of the least pleasant ways imaginable. Just as bad, Roman law established a system whereby paid agents of the state regularly inflicted cruelty of the worst sort on its citizens. The entire relationship of the individual to the state was imprinted by that basic power relationship. It was a terrible, terrible system and it endured for centuries.

Nor was it only a characteristic of the state. The Church’s codes of justice were also Roman in inspiration, and the Church came to regard torture as an essential part of its soul-protection duties.^* When Philip IV wanted to crush the supposedly heretical Templar movement in France, he used torture widely and indiscriminately, with the knowledge and blessing of the Church. English kings too were under an obligation to eliminate heresy, but more or less refused to do so via torture. This English intransigence risked annoying the Holy Father. Pope Clement V wrote to Edward II, saying, ‘We hear that you forbid torture as being contrary to the laws of your land; but no state can override Canon Law, Our Law; therefore I command you at once to submit these men to torture…You have already imperilled your soul as a favourer of heretics…Withdraw your prohibition and we grant you remission of sins.’ The Pope, in other words, was ordering an English king to torture supposed heretics on pain of damnation. Edward formally gave way, but the Inquisition failed to establish itself in England: English soil would remain alien to its practices. Torture remained uncommon. The death penalty from religious courts remained rare.

As for the provincialism of England’s rustic little methods, time was to change all that. Where the British Empire led, the common law followed. The United States has a version of common law. So do most other former colonies, including Canada, Australia, New Zealand, India, Pakistan, Malaysia and numerous others. What’s more, Enlightenment Europe came to have a growing moral revulsion to its reliance on torture. The existence of the English model proved that there were other ways to do things; ways that didn’t involve a collapse of law and order. The English system was widely cited, widely copied. The Continent retained its civil law traditions, of course, but it adapted them. Torture went out; new evidential procedures came in. Cruelty began to drain out of that basic relationship between individual and the state. In the strange and unpredictable way of history, those old English rustics ended up shaping the law not merely of England, but half the world besides.

* Becket’s murder could just have been a teeny misunderstanding, of course. History is as yet undecided.

* Nobody had anticipated this outcome when Roman codes were first introduced—but as we know, no one expects the Spanish Inquisition.