by Mark Hopkins

Created on: February 07, 2010   Last Updated: September 05, 2011

Torture was far less common in Medieval England than in other European countries. England has a system of Common Law (subsequently taken to America and elsewhere) which evolved from the 12th century onwards.  This relied on sworn juries of 12 men to establish innocence or guilt according to the evidence given to a jury in Court. Elements of this can even be traced back to late Anglo-Saxon times. Continental countries followed Roman Law and were much given to the use of torture to extract confessions.

Early English history preserves the Law Codes of numerous Anglo-Saxon Kings. They do not prescribe torture as a punishment, nor as a means of establishing guilt. Punishments could certainly be brutal and involve mutilation, such as cutting off the nose or a hand, but this was in preference to death. Of course, fines were also imposed for some offences. Capital punishment existed too. We should be very careful not to see the earlier ages as simply barbaric though. King Athelstan (924-939) personally intervened to have the age for capital punishment raised from 12 to 16, for example. (Nearly nine hundred years later, children far younger than 16 could be hanged in Britain for petty theft).

Innocence or guilt in the most  serious cases could be decided through Trial by Ordeal. This could involve carrying a red hot iron bar, plunging a hand into boiling water or fighting one's accuser to the death. It was believed that God would ensure the right outcome, in  a superstitious age. It was the famously irreligious King William Rufus, (1087-1100), apparently, who banned trial by combat in England after he tired of seeing so many men accused of poaching deer emerging 'innocent'.

In 1215 the Fourth Lateran Council forbade the Clergy to administer Trial by Ordeal. On the Continent, where Roman Law  prevailed, a new system based on proof emerged. It required the testimony of two eye witnesses or evidence from confession and sanctioned the use of torture in capital cases as part of the evidence gathering needed prior to trial. There was no jury. Pope Innocent IV approved the use of torture in a Papal Bull issued in 1252.

In England though, the customary or Common Law, not based on Roman Law, existed. Juries had been used, in some limited circumstances, since pre-Conquest times as a means of establishing the truth. King Henry II (1154-1189) had extended their use and had begun to send Judges around the shires of

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