Terry Jones' Medieval Lives (11 page)

. . . if they have a very bad reputation and are publicly and scandalously decried on the testimony of many lawful men, shall forswear the king's lands, to the effect that within eight days they shall cross the sea unless the wind detain them; and with the first wind which they have thereafter they shall cross the sea, and they shall never return to England unless by the grace of the lord king; and there let them be outlaws, and if they return let them be taken as outlaws.

The ordeal was soon seen as a rather pointless formality; people did not trust it and anyone who was accused was usually damned whether he passed or failed. In 1215 it was dropped (the church forbade priests to take part, putting an end to the notion that God was judging the case) and a second or ‘petty' jury took over to judge the facts in criminal trials. Its members still did not hear evidence; their job was to know what had happened and report accordingly. The penalty for most crimes was hanging.

Since the petty jury had no authority through customary law the accused could refuse to be tried by it; and as the trial jury might well include members of the panel who had named him as a criminal in the first place, this might be quite sensible. He was then held in gaol ‘
peine et dur
' (which it certainly was) until he agreed to be tried. In the fifteenth century this was felt to be inadequate, so even more severe pressure was applied:

Some people were pressed to death in this way. The advantage of this was that as the accused had not yet been convicted his property still passed on to his next of kin. The crown seized the property and land of a convicted felon.

JUDGEMENT

By the mid-thirteenth century the travelling judges of the general eyre were so overwhelmed with work that they only visited each county every seven years. If an accused person could not find guarantors for his court appearance (the equivalent of bail), he could be held in gaol for a very long time which could prove to be a death sentence in itself.

The problem was eased by establishing a more regular circuit of judges: the assize court, which tried cases twice a year. The function of the royal court had changed. It was no longer an extraordinary tribunal, a court for great men, for great causes, for matters that concerned the king; it had become an ordinary tribunal for the whole realm.

England now had an extraordinary and unique legal structure, entirely invented by an ingenious and desperate monarchy. Its most remarkable feature was the amount of power, however messily administered, it placed in the hands of the local community. English law was quite unlike that on the Continent. There, law was run from above and was based on Church law (canon law) and Roman law. In England, it was totally dependent on a popular understanding of law, and the job of the courts was to enforce ‘common law'. The juries who laid accusations and tried cases were made up of people who supposedly knew what had happened. This meant they consisted very largely of people who were legally in various degrees of servitude. This would have a very striking effect on the development of the law. It meant that the ordinary Englishman, even though he was a villein or even a serf, was familiar with the law and the courts, not as a victim but as a participant in the legal process.

It also meant that people might not be convicted, even in the face of the plainest evidence, if a jury believed a hanging would be unjust. One jury claimed that ‘when playing ball the ball had hit an unseen barbers hand so that he cut his customers throat'. Another declared, apparently with a straight face, that ‘the deceased walked backwards into the path of an arrow'.

BOROUGH COURTS

Each town had its own laws and borough courts, so there too the ‘common people' became used to using the processes of the law and developing their own notions of legal fairness. These courts usually dealt with offences such as trespass, property disputes, assault, petty theft and debt – minor matters that the royal courts at first preferred to avoid, if they could.

However, the fourteenth century saw an increase in litigiousness as avenues opened up for people to complain about any perceived wrong, and as the royal courts opened themselves up to appeals of even minor cases from lower courts. The jurisdiction of the boroughs, based on customary law, was thus undermined.

The borough courts, though, were busy with much more specific matters. Certainly, from the time of the Black Death between 1348 and 1349 and the Statute of Labourers in 1351, which attempted to control wages, local authorities regulated the price of all bread and ale that was sold. The courts used the law to enforce these regulations, and imposed their own systems of punishment (town courts could not outlaw criminals), which ranged from mutilation to forcing traders in bad goods to eat their produce in public, or have their bad drink poured over them. As with rural juries, maintaining the law was a matter of shame and reputation.

Haggling over basic commodities was illegal, and in most food markets bargaining was punishable by a fine and holding an auction was seen as a criminal act, held in secret. The ‘law of supply and demand', that insists on higher prices when goods are in short supply, was regarded as anathema and therefore not allowed to operate in these medieval markets.

It can be argued that the true end of the Middle Ages came in the seventeenth century, when prices were allowed to rise in times of dearth, and the laws of supply and demand took over.

OUTLAWED BY GOSSIP

The great achievement of the revolution in English law was that it did not dilute the effectiveness of law as an instrument of royal power, but allied it to the morality and gossip of local communities. This had the paradoxical effect of driving quite a lot of people into outlawry while making outlaws into symbols of righteous disaffection.

This rhyme was made in the wood, under a laurel tree.

There sing blackbird and nightingale, and the hawk ranges.

It was written on parchment to be better remembered
,

This is from a poem of about 1306, which purports to have been written by an outlaw. It gives a fairly clear insight into what might make some men become outlaws.

According to this outlaw poet, living in medieval England was like living in a neighbourhood-watch police state. Getting on badly with the neighbours was likely to end in indictment, with those neighbours forming the jury:

Ill-disposed people, from whom God keep his pity
,

out of their lying mouths have indicted me

of wicked robberies and other crimes
,

so that I do not dare to visit my friends . . .

If these wicked jurors refuse to mend their ways

so that I may go riding to my country
,

if I can capture them, I'll make their heads fly off.

I'll not give a penny for all their threatening words.

Even your own servants could denounce you:

Sir, if I wish to punish my serving-boy

with a thump or two, to mend his ways
,

he will lay information and have me detained
,

and before I leave jail I must pay a large ransom.

The gossip of the poet's neighbours and servants handed power to the local officer of the crown, a man whose main duties had nothing to do with law enforcement but who would naturally seek to make what he could out of his position:

Forty shillings they take for my ransom
,

and the sheriff turns up for his bribe

for not putting me in a deep dungeon.

Now, lords, consider, is this fair?

In the mid-thirteenth century many poor people refused to attend their trials and were therefore labelled ‘outlaws'. The wealthy could handle the legal system by paying bribes – it was said they were hanged by the purse, as a poor man would be hanged by the neck. The literate had their own way of escape by pleading ‘benefit of clergy' – anyone who could read a line of scripture in Latin was taken to be in holy orders, and was therefore entitled to be turned over to an ecclesiastical court where the severest sentences were usually degradation and the imposition of penances. But a poor man who knew no Latin, and was disliked by his neighbours, needed to hide from a system that would kill him for sure. And then he would hide as a robber:

I have not the goods to arrange a ransom
,

but if I were in their bailiwick, I'd be given over to death

[I would die in prison]

Whoever began this business

will never amend in his life.

I tell you the truth, there is too much sin in it
,

because for fear of prison many will turn robber.

Some will become robbers who never used to be
,

who dare not lead a peaceful life for fear of jail;

they lack what it takes to keep them alive each day.

Whoever began this business embarked on a great task.

SANCTUARY

One alternative was to run like hell for the nearest church and claim sanctuary. Almost any religious building could offer immunity from arrest for 40 days; one or two select establishments (such as Westminster Abbey and Beverley Minster) could even offer perpetual sanctuary.

The whole system of sanctuary may seem extraordinary to us. Why on earth should the Church be prepared to harbour thieves and murderers and protect them from the law? Actually the same thought struck a lot of people at the time.

In 1402 the Commons complained that the sanctuary associated with the London church and college of St Martins le Grand, just north of St Paul's near Aldersgate, was being abused by ‘murderers, traitors and disturbers of the King's peace' who ‘hide out by day and at night go forth to commit their murders, treasons, larcenies, robberies and felonies'.
*4
And a century later a Venetian traveller, visiting England in the time of Henry VII, recorded his amazement that so many villains were permitted to conduct organized criminal activities under the shelter of the Church.
*5

The idea of sanctuary dates back to ancient times, and was vigorously defended by Saxon kings. It may be that in the days of vendetta, when law was a matter to be settled by individual families, the church could offer a cooling-off period during which some accommodation could be arrived at. However, as the law developed such considerations began to appear outdated.

But for much of the Middle Ages, sanctuary was a hotly disputed subject. In some places the area of sanctuary around a given religious building was enormous – the boundaries being clearly marked by special ‘sanctuary posts'. For instance, around both Hexham Abbey and Beverley Minster, crosses were erected in a radius of one mile to indicate the area of sanctuary.

To qualify for a permanent position as a Sanctuaryman in Beverley, the accused had to make a full confession of his crime, which was then duly recorded in a register that was kept in the Minster and which still exists. The Beverley records show that the most common perpetrators of crimes of violence were butchers, while the most frequent debtors were builders.
Plus ça change
 . . .

Most sanctuaries, however, could only offer a short-term solution to the average criminal's woes. If he refused to leave at the end of the forty days, he was as good as dead. Any layman who even communicated with him after the forty days were up would be hanged. When he finally emerged, he would be immediately seized and executed on the spot, unless he swore on the Gospels to ‘abjure the realm'. In which case he would be issued with a crude sackcloth garment, without a belt, and a wooden cross to carry and he would have to make for the nearest port. There he would have to take the first ship out of England, and for every day he failed to find a passage, he would have to wade into the sea up to his knees.

It's probably the only time that paddling has been used as a form of punishment.

If the criminal could not leave within forty days due to bad weather, then, in theory, they could seek new sanctuary in another local church and start the whole business all over again. However, there is no record of this ever happening. The majority of them just threw away their wooden crosses on a lonely stretch of road and melted away into the woods to take up a new identity or join the many bands of outlaws that plagued the country.

THE GREENWOOD REFUGE

The outlaw poet contrasts the ‘false dealing' and ‘bad law' from which he is fleeing with the fairness of nature:

For this reason I shall stay in the woods, in the pleasant shade;

there is no false dealing there, nor any bad law
,

in the wood of Belregard, where flies the jay
,

and the nightingale sings daily without ceasing.

‘Robin Hood and the Monk' begins with a strikingly similar evocation of the woodland idyll:

In summer, when the woods do shine
,

And leaves be large and long
,

It is full merry in fair forest

To hear the birdies song
,

To see the deer draw to the dale
,

And leave the hills so high
,

And shelter in the leaves so green
,

Under the green wood tree.

The notion of the ‘greenwood' as an Arcadian idyll runs through the outlaw legends. Today we associate it with forests, but ‘forest' was a technical term in the Middle Ages and stood for something that was far from idyllic. It is not at all obvious why the ‘green wood' should have been described as a place of sanctuary from the law.