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Settlement and the Decline of Private Prosecution in Thirteenth-Century England

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Settlement and the Decline of Private Prosecution in Thirteenth-Century England Settlement and the Decline of Private Prosecution in Thirteenth-Century England Independent Institute Working Paper #19 Daniel Klerman Jaunary 2000 Settlement and the Decline of Private Prosecution in Thirteenth-Century England Daniel Klerman I. Background .............................................................................................................7 A. A very short history of criminal prosecution in England ..................................7 B. Offenses .......................................................................................................12 C. Procedure.....................................................................................................14 D. Settlement ....................................................................................................21 E. Social context...............................................................................................26 II. Trends in the Rate of Appeals.................................................................................29 A. The data set..................................................................................................30 B. Analysis without regression ..........................................................................32 C. Regression analysis.......................................................................................38 D. Analysis by crime..........................................................................................44 III. Respect for Settlement and the Changing Rate of Appeals ......................................46 A. Previous explanations for the decline of the appeal........................................46 B. Changes in settlement policy and the changing rate of appeals.......................49 C. Analysis by crime..........................................................................................62 D. Non-prosecuted and settled appeals in common law treatises........................65 E. Canon law influence .....................................................................................71 F. Legal knowledge of potential appellors and appellees ...................................74 G. Measuring respect for settlement ..................................................................76 IV. Alternative Explanations for the Changing Rate of Appeals.....................................80 A. Crime trends.................................................................................................80 B. Presentment trends .......................................................................................83 C. Pre-appeal settlement ...................................................................................86 V. Conclusion .............................................................................................................88 Daniel Klerman is an associate professor at the University Southern California Law School. He is especially grateful to Richard Helmholz, who guided this project as the chairman of his dissertation committee, and to Paul Brand, who answered numerous questions and provided copious and extremely helpful comments on a draft of this article. He also thanks Albert Alschuler, John Baker, Robert Bartlett, John Bellamy, Lisa Bernstein, Julie Bush, Emily Buss, Isaiah Cox, Richard Craswell, Charles Donahue, Jr., Mary Dudziak, Charles Duggan, George Fisher, David Friedman, Thomas Gallanis, Jason Glenn, Jack Goldsmith, Charles Gray, Thomas Green, Roger Groot, Alon Harel, John Hudson, Margaret Kerr, Julius Kirshner, Jacob Klerman, John Langbein, Jonathan Lehrich, Bentley MacLeod, Tracey Meares, Peter McCullagh, Robert Palmer, Richard Posner, Chris Sanchirico, Stephen Schulhofer, Steven Shavell, Matthew Spitzer, Robin Stacey, Henry Summerson, Eric Talley, Eugene Volokh, Lisa von der Mehden, and Charles Whitebread for their advice, assistance, and critical comments at various stages of this project. Three anonymous referees at Law & History Review also provided much helpful criticism. This research was supported by a Fulbright scholarship, the Herbert and Marjorie Fried Faculty Research Fund at the University of Chicago Law School, the National Science Foundation (Law and Social Science Program, grant # SBR-9412044), the Robert B. Roesing Faculty Fund at the University of Chicago Law School, and the Social Science Research Council. Settlement and the Decline of Private Prosecution 2 Although modern societies generally entrust enforcement of the criminal law to public prosecutors, most crimes in pre-modern societies were prosecuted privately. In classical Athens, ninth-century Germany, and England before the nineteenth century, there were no public prosecutors for most crimes.1 Instead, the victim or a relative initiated and litigated the cases. This article is the first rigorously quantitative analysis of private prosecution. It focuses on thirteenth-century England and uses statistical techniques, such as regression analysis, to explain the changing rate of private prosecution. Because statistical analysis is extremely uncommon in legal historical scholarship, it is hoped that this article will show more generally that quantitative methods can provide new insights into old puzzles. Because private prosecution was common in many pre- modern societies and remains a subject of theoretical debate among contemporary scholars, a thorough examination of thirteenth-century private prosecutions has relevance not only to English legal historians, but also to historians of other legal systems and to modern criminal procedure scholars. In addition, although the importance of settlement to the resolution of disputes has been widely recognized in both modern and historical scholarship, it is less common for scholars to focus on settlements between victim and accused in the context of criminal cases.2 Finally, by showing how changes in legal rules 1 Here and elsewhere I use the term “crime” somewhat informally to refer to the type of offenses which were privately prosecuted in thirteenth-century England, including homicide, rape, robbery, larceny, burglary, and assault. Some legal systems, including England’s perhaps into the thirteenth century, did not distinguish (or did not distinguish sharply) between civil and criminal cases. 2 There is, however, a growing literature on such settlements. Much of it focuses on societies in which, unlike thirteenth-century England, feud flourished. Christopher Boehm, Blood Revenge: The Enactment and Management of Conflict in Montenegro and other Tribal Societies (1984), 121-142; William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (1990), 259- 99; J.M. Wallace-Hadrill, “The Bloodfeud of the Franks,” in The Long Haired Kings (1962), 121-47. Settlement and the Decline of Private Prosecution 3 affected litigant behavior, and vice versa, this study contributes to understanding the broader relationship between law and society. In medieval England, private prosecutions were called "appeals." Unlike modern appeals, these appeals were unrelated to the correction of legal errors. To "appeal" simply meant to prosecute. Although appeals continued to be brought until the early nineteenth century, their heyday was the late twelfth and early thirteenth centuries. By the end of the thirteenth century, relatively few criminals were prosecuted by appeal. This article focuses on the appeal during the period 1194-1294 in order to understand the appeal during the period when it was most important and in order to understand why it became so marginal.3 The substantive contributions of this article lie primarily in two areas: accurate charting of the trends in the number of appeals and a new explanation for the decline of the appeal.4 There is also some discussion of settlement of criminal disputes by English legal historians. See, e.g., Roger Groot, "The Jury in Private Criminal Prosecutions before 1215," American Journal of Legal History 27 (1983): 132-36; Christopher Whittick, "The Role of the Criminal Appeal in the Fifteenth Century," in Law and Social Change in British History: Papers Presented to the Bristol Legal History Conference, 14 - 17 July 1981, ed. J. A. Guy and H. G. Beal (London: Royal Historical Society, 1984), 63-65; Douglas Hay, “Property, Authority, and the Criminal Law,” in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay, Peter Linebaugh, et al. (London: Penguin Books, 1975), 41-42. 3 The choice of these particular starting and ending points was determined by the survival of manuscript sources. See infra pp. 30-31. 4 Other aspects of the appeal are explored in Roger Groot, "The Jury in Private Criminal Prose- cutions before 1215," American Journal of Legal History 27 (1983): 113; Daniel R. Ernst, "The Moribund Appeal of Death: Compensating Survivors and Controlling Jurors in Early Modern England," American Journal of Legal History 28 (1984): 164-88; Christopher Whittick, "The Role of the Criminal Appeal in the Fifteenth Century," in Law and Social Change in British History: Papers Presented to the Bristol Legal History Conference, 14 - 17 July 1981, ed. J. A. Guy and H. G. Beal (1984), 55-72; Margaret H. Kerr, "Angevin Reform of the Appeal of Felony," Law and History Review 13 (1995): 351-392. General discussions of the appeal can be found in Sir William Holdsworth, A History of English Law (4th ed. 1936), 2:256-57, 361-64; Theodore Plucknett, A Concise History of the Common Law (5th ed. 1956), 428; S.F.C. Milsom, Historical Foundations
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