History & Law

Jurisprudence...the Moral Integrity of the Law!  The Law as a facet of Philosophy.  Law and it's relation to Justice.  What do we mean by the 'Law?'  The effects of the Norman Conquest.  The Magna Carta and the present.  Torts, Civil & Criminal proceedings.  Human Rights.  Law Reform.  Policing...

History & Law

Jurisprudence...the Moral Integrity of the Law!  This Section will take a critical look at the Law...from the Layman's point of view.  It will invite Law Student Debate and look at Law Reform for Victims of Crime.  It will explore it's roots in history of Law and Policing to modern times!  Let's start with a look at the History and Proceedings of the Old Bailey... www.oldbaileyonline.org/static/The-old-bailey.jsp  


Justice is blind?  At the top of the Old Bailey is the Statue of Lady Justice...since the 15th Century, statues of the Roman Goddess, Justitia, have often shown her eyes covered as a sign that the Law, operating with fear or favour, is impartial.  However, Justice is not deaf...and for many years Homicide Victims' families have protested for their Rights to be enshrined in Law.  Currently, through the work of Louise Casey CB the first Commissioner for Victims' & Witnesses we are calling for a Victims' Law.


LAW ENFORCEMENT...before Police Forces?


Police (Archaic) (a)  the regulation and control of a community, esp. in regard to the enforcement of law, the prevention of crime, etc.  [Collins Dictionary].


Although the word "Police" was not to be used for many centuries, there is no doubt that the principle of policing can be traced to the reign of King Alfred the Great (871-901).  Although he had considerable problems with the Danes, he not only encouraged his subjects to become educated (translating a number of books into English himself) but he also introduced the concept of 'The King's Peace'.  His prime aim was a quiet and peaceful enjoyment of his kingship, and he was well aware of, indeed encouraged, the knock-on effect it had for the populaltion as a whole.  Acting on the dictum...'What ye will that other men should not do to you, that do ye not to other men'...he compiled a series of flexible laws.  Basically, in return for being allowed to reign and to expect their unswerving allegiance, he promised them peace and security.


This ideal was perfected by his great-grandson, Edgar (959-975), who divided the then unified Country into Shires.  The basic unit consisted of ten families (atything) and these were united in groups of ten to form hundreds.  This division of the Crountry into hundreds was to be used for administration purposes over many centuries.  Indeed Essex still referred to some 20 in the mid-1800's.  Each tything had a tythingman who was pledged to give a surety for his peoples' good behaviour and who had to start the 'hue and cry' after any miscreant.  This comprised all the able-bodied males over 12 arming themselves with whatever was to hand and pursuing the miscreant.  This was know as the posse comitatis with "hue" coming from the Anglo-French 'to hear' and the "cries" were to keep in touch.  Failure to join the 'hue and cry' without a very good reason was a punishable offence!  The posse comitatis became more formalised over the years, with the starting age lowered to 7 during the Middle Ages when the home weapon requirement became more formalised.  Archery for all able-bodied males became compulsory (on Sundays)...but it was disbanded in the 1660's when a standing army was raised for the first time.  Each collection of one hundred was controlled by a hundredman who reported to the Shire Reeve or Sheriff.  Although the 'death penalty' was only imposed for Murder or Treason, the alternative being outlawry, the result (like the later transportation) was no better.


Whilst 1066 saw a major upheaval in the form of the Norman Conquest...William I saw no purpose in disturbing what was obviously working well and so merely centralised matters by making the Shire-Reeves, who had autonomy in Anglo-Saxon days, the local representatives of the King.  He also introduced Circuit Justice with the 'Sheriff's Tourn' travelling the Crountry each Michaelmas.  These Senior Judges tried the most serious offences, administered justice and, more importantly, raised revenue for the Crown...with fines going to the Exchequer.


Henry II, by the Assize of Clarendon (1166) revived the then obsolescent principle of the tythemen having to 'Pledge' their people's good behaviour and, some 15 years later, the Assize of Arms required all males over 15 to keep arms at home (in accordance with their status) to assist in preserving the peace and arresting criminals.  This gave rise to the new word 'Constable'...derived from the Roman-Frankish comes stabuli...it originally meant a Military Officer of the highest Rank.  Now they were merely the inspectors of these small arsenals.


The next major move was made by Richard I who in 1195 appointed a number of Knights as 'Conservators of the Peace'.  Purely executive posts, they were placed above the local Sheriffs and were the forerunners of the peace officers of later times.  1251 saw the first, casual mention of 'Constables' and 'High Constables' in a Writ of Henry III.  These are believed to be the new titles of the tythingman and the hundred man.


The Statute of Westminster (1215) made it the duty of all men to police themselves...requiring two men in every hundred to be appointed as Constables whose duty it was to inspect the local armament on a half-yearly basis.  This was followed in 1285 by the Statute of Winchester under Edward I, which firmly established the office of Constable.  Appointed on an annual basis by the Lord of the Manor, the post of Constable was compulsory and their duties expanded (even though they were paid very small fees)...they were expected to carry on their normal work!


In 1344 the Conservator Knights were given judicial functions, coupled with a decline in the importance of the Sheriffs.  Justices of the Peace were, effectively, created by a further Statute of 1361 which required "every County in England" to assign "for the keeping of the peace, one lord, and with him, three or four of the most worthy men".  Typical examples of these were Sir John Mountney 1376/7 (who gave his name to Mountnessing in the County of Essex) and Sir John Gildesborough who was attacked during a minor riot at Brentwood, Essex on the 30th May, 1381.


The number of justices was increased in 1390 to eight per County and each was paid four shillings per day's sitting.  Limited to some 12 days a year, this amount ultimately led to bribery and corruption but, the original justices being men of substance...this took time to occur.  Meanwhile more and more duties were heaped on them and they became, in essence, de facto county councils.  Despite serious 'overload' this system lasted well into the Tudor times.  During the reign of Henry VIII the monasteries were disbanded, leading to a breakdown in much of the social and welfare structure and so, almost directly, to Queen Elizabeth I introducing the poor rate 1601.  This (like Pitt's 'temporary income tax' of 1798) is still with us in the form of the Council Tax, but was then merely an endeavour to sort the genuine poor and needy from the work-shy, supporting the first...and whipping the latter!


By 1601 the Justices had become so openly corrupt that a Member of Parliament went on record describing then as 'basket justices'...this being a reference to the basket openly on display on their bench, soliciting 'contributions' from the litigants and so, presumably, biasing the verdict towards the greater contributor.


This was all part and parcel of the background to the Civil War which, during the 'reign' of Cromwell saw the attempt to organise a new commission of the peace failing miserably, leaving Cromwell only his army to rely on.  Consequently, in 1655 the Country was divided into 12 Military Districts...each under the command of a Major-General with a law-enforcement body of some 6,400 mounted men.  Obviously a military dictatorship, the sanctions it forced the the populace (such as no singing, dancing and very little in the way of 'beer and skittles'..), coupled with a considerable element of political espionage, laid the foundations for much of the trouble that later reformers were to encounter.


Charles II  introduced his 'Bellman' in 1163.  A thousand of them were raised un an Act of Common Council, with minimal pay.  Their only effect was to call the hours of the night and the state of the weather...if they were awake!  Known, derisively, as 'Charlies'...they rapidly became a public joke.


The Great Fire of London in 1666 was a wake-up call that couldn't be ignored.  Sir Christopher Wren (as an MP) organised the licensing of public vehicles and the new office for this was sited in Scotland Yard.  In 1673 Magistrates were empowered to appoint regular constables direct, together with the ability to appoint additional, temporary or 'special' constables in times of great need.  Their position being consolidated by the Special Constable Act 1831 means that the 'Specials' pre-date many, if not all...other forces.


The 'Blood-Money' Act of 1692 did not help the cause of justice to any extent.  Parliament provided some £40,000 to reward the captors of criminals.  However, the sliding scale of awards was such that it encouraged people to ignore smaller crimes until the upper levels were reached (£50 for a Highwayman but only £10 for a Housebreaker for example).  This together with the Tyburn ticket (getting a felon convicted of a Capital Offence exempted the holder from all parochial duties for life) led to a laissez faire attitude and, of course...more corruption!


The Riot Act (1715) was the very first Statute of George I and had to be read to the rioters by a Magistrate who then had to find the Military to enforce it.  Last invoked in 1919, it was repealed as recently as 1967.  A major step forward in 1748 was the appointment of Henry Fielding as a Magistrate at No. 4 Bow Street, London.  Recruiting his brother and some seven or so men, he formed Mr. Fielding's Men...soon to be known as the Bow Street Runners.  They can be described as the first Detectives. 


Fielding published a Treatise...'An Increase in Robbers' in 1751 which led to the founding of the post of Public Prosecutor and 1753 saw the creation of an integrated plan for the Policing of London.  This had to be paid for from the Secret Service funds...it was too politically snsitive to be openly acknowledged.


Fielding was followed by his brother John in 1755, but he had as little encouragement from the authorities.  In 1770 a Select Committee met to consider policing the Metropolis...only to see their report quietly shelved.  1772 saw the publication of John Fielding's Quarterly Pursuit - a list of 'wanted criminals'...sent to all Magistrates in the Country.  Made weekly, it became The Police Gazette.


The Gordon Riots occurred in 1780.  Lasting 7 days...no Magistrate could be found to face the mob to read the Riot Act and eventually the King had to exercise his Royal perogative and order the troops out.  This helped to crystalise the situation and in 1782 the first officially recognised Bow Street Foot Patrols took to the streets.  Consisting of 6 or 8 men under a 'Captain'...8 parties patrolled the outskirts up to 4 miles from Charing Cross.  Paid out of public funds (Captains received Five Shillings a night and the men Two Shillings and Sixpence) they were armed and were the first ever preventative patrol.


To this Background, Pitt the Younger introduced his first Police Bill in 1785.  Known as 'Pitt's Bill'...it proposed the unification of the whole of the Cities of London & Westminster, the Borough of Southwark and other areas into on Police District with provision for the new arrangements to be paid for out of central funds.


Opposition for the City of London was immediate and vicious.  The Lord Mayor and his Sheriffs described it as 'a system of Police altogether new and arbitrary in the exteme" and Alderman Hammet also commented that "If a torch had been applied to the building (in the city) it could not have created more alarm!"  Needless to say...the Bill was withdrawn.


Patrick Colquhoun was appointed Stipendiary Magistrate at the new Police Office in Worship Street, subsequent to the Middlesex Justices Act (1792).  A Glaswegian of some 47 years, he had been Lord Provost of Glasgow and he spent the next 25 years devoted to what he called the 'new science' of preventative police.


In 1796 Colquhoun published his preliminary findings as a paper entitled 'Treatise on the Police of the Metropolis' which ran through Seven Editions in 10 years.  This dealt with the causes and effects of crime and included many statistics.  Listing out the forces of law and order he started with some 3,044 men.  Deducting the useless and criminally inclined...only 117 were left!  His many suggestions (very similar to Pitt's) were adopted by the Police Finance Committee in 1798 but, again, they were quietly shelved by virtue of the opposition of The City.


The Napoleonic scares...brought the posse comitatis back in the form of the Militia, whilst the return of large numbers of unemployed soldiers in 1815 with their looting and rioting gave rise to some successful Police legislation.


Essex was in 1839 amongst the first 8 Counties to take advantage of the County Police Act of that year.  In 1843 it was stated that "half a dozen regular Essex Policemen would be equal to seventy Parish Constables"...  By Maurice W. Back





Legacies of English Common Law...around the 13th Century when civil torts and criminal actions first became distingished in England "Actions in Trespass" and "Actions in Trespass on the Case"

respectively, Victim Impact Statements' were permitted, as the Crown stood in the shoes of the Victim of the Offence in English adversarial proceedings.  Victims were allowed to speak in support of the Crown in "keeping the King's peace" and as punishment of the Perpetrator replaced restitution to the Victim, as the Government's primary objective!...


King John signed the Magna Carta at Runnymede in 1215

...how is this relevant to us in today's modern times?

Laws in England, America & beyond...



Magna Carta, or as it is properly called...the Great Charter of Liberty was born on 15th June, 1215 at Runnymede when King John [Bad King John as he is commonly known] was persuaded to accede to a number of demands made by a powerful and rebellious group of Barons.  It was initially seen by King John as simply a bargaining chip, and not of very great significance...History has told us otherwise.  It may well have been short-lived as it was swiftly declared by Pope Innocent III [at John's urging] to be null and void.  It was said to have been procured through extortion!


It is one of those rare pieces of legislation, in fact unique, which was not simply revived...but,

 has been reaffirmed on numerous occassions in the centuries since King John's death.  In fact King John's Son,

Henry III re-issued it three times.  It was entered on the Parliament Rolls by Edward I on the 28th March, 1297.  It has retained its Statutory force ever since, although its application as been curtailed by a number of amending Statutes.  Chapters 1, 9 and 29 [only] remain in force...of those 3 sections Chapter 29 [or Chapters 39 and 40 as it was in the 1215 version] is the one that resonates today...illustrated by recent events when David Davis, MP stood down from Parliament to fight a by-election on the issue of 42-day detention.  His view...as for so many people in Britain and around the world, the Magna Carta and Chapter 29 in particular remains the enduring Symbol of Freedom; of the fundamental rights that lie at the heart of our open and democratic societies as they have developed over the long centuries from Runnymede.


Chapter 29 originally stated that:  "No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgment of his peers or by the law of the land.  To no one will we sell or deny or delay right or justice."


Chapter 29 was amended in 1354 by Edward III to read as follows:  "...no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law." 


In these statements we can clearly see the origins of the commitment to the right of fair Trial and to our commitment to the Rule of Law.  In the placing of his seal on the Magna Carta, King John attested that he was not above the law!  A point King Charles should have thought to remember when arraigned before the Parliament appointed High Court of Justice on the 20th January, 1649 for HighTreason.  This indeed was a point that was not lost on the newly formed United States of America when it was given the force of Law in the 5th and 14th Amendments to its Constitution. 


Most recently, its importance was no doubt recognised by those drafting the European Convention on Human Rights...where it finds itself articulated as Article 6.  Its influence goes wider than this...and the principle it states finds expression in the constitutional framework of Countries throughout the World.  Its significance continues to resonate here and abroad...it will do so over the forthcoming years as Governments seek to strike the right balance between issues of individual rights...the Rule of Law...issues of security and the principles of Justice that lie at the foundation of Society...


The Magna Carta lies at the very heart of our democracy...and democracies throughout the World.  It's influence is central to the Rule of Law.  It is doubtful that any Democratic Society could or would attempt to *abrogate the principle to which it gives expression!


*Abrogate...to ask or propose a Law

A Right of 'Subrogation'...[as a successor to his rights]






HUMAN RIGHTS ACT 1998 - What the Articles Say...






YOU TUBE:  www.youtube.com/watch?v=o0sEgc8mAzo









E. & O.E.