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medieval law courts, and much of the court’s work was concerned with deciding in what ways the parties should be allowed or required to prove their case. By the twelfth century, the old Saxon trial by ordeal was no longer used and the Norman innovation of trial by battle had faded away from disputes over freehold land, after the introduction by Henry II of the Grand Assize as an alternative to battle. Trial by combat survived in the old procedure of appeal of felony, but this too had fallen into disuse after the reign of Henry II. Of the ancient methods of proof which
(Chicago, 1985), pp. 28–33, 66–9: ‘Whether the bench questioned juries at gaol delivery . . . remains unclear’ (ibid., p. 68 n8). 69 For example: JUST 3/117 m7d. 70 Two such instances reached the Court of King’s Bench: Sayles (ed.), Select Cases, VI, pp. 21–5, 133. 71 JUST 3/49/2 m8d. 72 JUST 3/48 m33. 55 Anthony Musson 73 For example: JUST 3/48 m11d; 49/1 m2. 74 JUST 3/125 m1. 75 For a more detailed discussion see A. Musson, Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to the Peasants’ Revolt (Manchester, 2001), pp. 154–6 and on changes
fulfilling the present meaning of ‘trial’, whereas so-called ‘trials’ in the medieval courts of love cannot. 4 This is well described in A. Musson, Medieval Law in Context. The Growth of Legal Consciousness from Magna Carta to the Peasants’ Revolt (Manchester and New York, 2001), especially chapters 1–3. 5 Probably so called because of the ‘pieds poudrés’ of the travelling traders who appeared before them. See T. Plucknett, Concise History of the Common Law (fifth edition, London, 1956), p. 660; W. Holdsworth, A History of English Law (17 vols, London, 1903–1972), I
‘gross indecency’ between men in public and in private.10 However, it is clear that all male homosexual acts, whether committed in public or private, were already liable to prosecution under the medieval law against sodomy, which was defined as anal penetration or bestiality. By the eighteenth century, the common law principle that any attempt to commit a crime was in itself a crime had begun to be applied to the crime of sodomy. Most eighteenthand nineteenth-century trials, therefore, proceeded under the formal legal assumption that any homosexual act was an attempt