by Ian Mortimer
Parliament has another important function besides establishing and confirming new laws: it is the highest court in the land. If a lord is to be tried for a crime, the trial takes place before his peers, in Parliament. Similarly, trials for high treason take place in Parliament. Some of the most dramatic moments of the century are thus to be witnessed at Westminster. On November 26, 1330, the traitor Roger Mortimer, first earl of March, stands bound and gagged before his peers as he is condemned to death for fourteen specified and many unspecified crimes. The process of the trial is that his crimes are “notorious” and known to all. There is no need for anyone to produce any evidence: he is guilty. He is drawn from the Tower of London to the gallows at Tyburn on a hurdle three days later, stripped, and hanged. If you visit Tyburn at any point over the subsequent two days, you can see his naked body turning in the breeze.
Lord Mortimer is lucky in some respects. The full penalty for treason is to be drawn to the gallows on a hurdle or an oxhide, then to be stripped and hanged until nearly dead, then cut down, disemboweled and emasculated, and finally to be quartered. In the fourteenth century the full penalty is very rarely carried out. Most men who are deemed traitors by Edward II are either killed in battle, beheaded, or hanged like common thieves. In 1305 the Scots patriot and outlaw Sir William Wallace undergoes the full drawing, hanging, disemboweling, and quartering, by order of Edward I. In 1317 the dignified Welsh nobleman Llywelyn Bren is similarly hanged and disemboweled by Hugh, Lord Despenser. His illegal death is avenged in 1326 when Despenser himself suffers the same fate, by order of Lord Mortimer. Despenser is drawn to the place of execution behind four horses, hanged on a gallows fifty feet high, then cut down and eviscerated and emasculated while still alive. His entrails are thrown into a fire. Only then is he decapitated and quartered. By 1400, this gruesome punishment has received an extra tweak for those guilty of the highest treason. The disemboweling takes place prior to hanging. In 1399, having been found guilty of witnessing the murder of the king’s uncle at Calais, John Hall is sentenced to be
drawn from Tower Hill to Tyburn Elms, and there disembowelled, and his entrails burnt in front of him, and then hanged, beheaded and quartered, and his head sent to Calais.24
In case you are wondering whether the disembowelment kills him before he is hanged, the answer is no. The executioner ties up his most important tubes so he can live long enough to witness his entrails being burnt.25 And when he is quartered, he really is quartered: it is not just a case of chopping off limbs. After his head is cut off, his torso is hacked into four pieces, each with a limb attached. If you go onto London Bridge you can see a stake set up with the quarter of him which was the right-hand side of his chest, rib cage, lung, shoulder, and right arm.26
ROYAL JUDGES
There are three central royal courts: the Court of the Exchequer, the Court of the King’s Bench, and the Court of Common Pleas. The Court of the Exchequer hears cases concerning financial arrangements with the Crown. The Court of the King’s Bench hears criminal cases and appeals from lesser courts. The Court of Common Pleas is also a court of appeal, but its predominant business is to hear those personal cases in which people are trying to sue each other over debt, theft, fraud, unlawful distrains, and similar offenses.
Most people will never see one of these courts. Their enormous importance lies in the fact that the judges from the King’s Bench and the Court of Common Pleas head out to each county, usually twice a year, to try all the serious cases referred to them from the sheriffs’ tourns and the county courts. These men are thus the principal agents of royal justice in the kingdom.
The commissions under which they try felons and trespassers vary. Every seven years there is supposed to be a commission of general “eyre,” which means the judges must try all unsettled cases. It is a great event when the judges come to town—up to two thousand people attend the 1313-14 Kent sessions.27 More regularly the king issues a commission of “oyer et terminer”—to “hear and determine”—all the cases awaiting a verdict in a county. A special form of this commission from 1305 is named “trailbaston.” Another form of commission is that of “assize”: judges travel through the counties on six circuits, trying all the criminals they encounter. Lastly there is the commission of “gaol delivery.” As the name suggests, the purpose of this commission is simply to empty the gaols. In the early part of the century, when the judges of the King’s Bench travel with the king, they hear the cases of all those in the gaols wherever they stop. Those awaiting trial in the sheriff’s lockup suddenly find the judges are coming. They are asked how they wish to acquit themselves. If they plead “not guilty,” the case is heard and a jury is asked to determine the guilt or innocence of the accused. If the jury says they are innocent, they go free. If the jury says they are guilty, they are punished. Over and over again one may see life and death situations come to a dramatic resolution, resulting in either an outpouring of relief or screams of despair as a woman realizes her husband has been found guilty and sees him dragged off to be hanged at the gallows outside the castle.
As the gaols are filled with thieves and murderers, the sentence passed on these men is usually simply that of hanging. Overall, about a third of all the accused men are executed, the remainder being released. There are few other punishments. It is not unknown for a man to be given life imprisonment: Hugh le Bever of London (whose goods are described in chapter 7) is sent to prison for killing his wife, Alice, “there to remain in penance until he should be dead.” But a sentence of life imprisonment like this is very rare. Occasionally, if a woman is convicted of petty treason (the killing of her husband, lord, or employer), she might be burnt alive, but this too is rare. Witches and heretics are generally hanged in England, not burnt. The punishment of burning alive for heresy is not properly introduced until the parliament of 1401. The customary laws in some ancient boroughs demand the loss of a limb for certain crimes. Attacking an alderman of London, for example, can result in the hand which drew the sword or dagger being cut off.28 According to the Charter of the Forest (issued about 1217), poachers should not have their hands cut off, as in the days of King John, but loss of limb is still meted out on their animals. Thus a poacher who escapes with a fine will still see his dog lose a paw. If a horse kills its master, then it should be confiscated as a “deodand” and sold, its value being payable to the Crown. Even a ship can be deemed guilty of murder and confiscated as a deodand, the proceeds of its sale being given to the king to be distributed as alms. Extraordinary though this practice seems, it is at least slightly more rational than the system which prevails in France, where donkeys, pigs, and cows are often tried and hanged for murder, if they happen to kill a child. In 1349 a cow is solemnly burnt at the stake for just such a crime.29
COMMISSIONS OF THE PEACE
Commissioners or Keepers of the Peace are the forerunners of what we know in the modern world as Justices of the Peace. (Technically they are only justices when they have the power to judge cases.) In 1307 and 1308 Keepers of the Peace are empowered to arrest people on suspicion of felony, and in 1316, in Kent, they are empowered to judge the cases of those they have arrested, so the gaols can be cleared.30 Although they are appointed by the king, these keepers of the peace are local men. This raises a serious question: should you have local justices? If you do not allow local people to hang felons on a regular basis, the felons get out of control. If you do, corruption is unavoidable. Many innocent people will be killed without recourse to the common law.
The gradual breakdown of law and order decides the issue. The last general eyres are commissioned by Roger Mortimer and Queen Isabella in 1328-30. Trailbastons fade out similarly in the following decade. Attempts are made to bolster the authority of the keepers of the peace, but with varying levels of success. Finally, in 1361, Edward III establishes the office of Justice of the Peace. It is stated that JPs are to be “three or four of the most worthy in the county, with some learned in law.” They have the legal powers to restrain peace b
reakers and rioters, to punish them according to their offenses, to arrest men and women on suspicion of breaking the peace and to imprison them, to ensure suitable sums of money are secured to guarantee the good behavior of suspected persons in future and to try people for their felonies and trespasses in accordance with writs of oyer et terminer. This act of 1361 is another of those still partly in force in the modern world.
After 1361 the magistrates’ powers increase steadily. In 1368 they are given supervision of the laws preventing workers from overcharging for their labor. In 1383 they are empowered to arrest vagabonds and vagrants, or to bind them over for large sums of money to ensure their good behavior. They also acquire the responsibility for stamping out the practice of maintenance. In 1388 the numbers of JPs in each county are increased, and it is enacted that they be paid 4s for each day of their sessions. With a payment level twelve times the average working wage and the powers to arrest, imprison, judge, fine, and hang people, the local magistrate becomes a very important person indeed.
Organized Crime
A large sum of money—£4,000 in gold, to be precise—is due to be transferred from London to the king at Leicester, a distance of ninety miles. How many men to do you think will be guarding it? Fifty? A hundred? Two hundred? You might be surprised to hear that this massive treasure is to be guarded by just five archers.31 Your thoughts on this might not differ greatly from those of many criminals in England at the time. However good those five archers are at their job, entrusting such a huge sum to so few men over such a long distance is simply asking for trouble. It is no coincidence that tales of Robin Hood enter popular culture at this time. There are rich pickings to be had from waylaying those with money, and those who can organize a gang to carry out a series of killings and robberies stand in a very good position to obtain considerable sums.
Roughly a third of all organized criminal gangs in England are composed of family units.32 Obviously the majority of these are informal collaborations. Husbands and wives often work together on the wrong side of the law, and so do brothers. Sometimes even sisters get involved. The Waraunt family of Salle, Norfolk, includes three sisters, one brother, and another male relative, John Waraunt. Two of the sisters and the brother are accused of receiving stolen goods in 1321; they escape punishment, as does another sister in the same year. John, however, is found guilty of stealing clothes and household goods worth eight shillings from a fellow townsman. He is hanged. In 1325 the four remaining members of the Waraunt family are back behind bars. A specific instruction is issued to their gaoler that they should be treated harshly. They all survive, and they also survive the appeal of an approver in February 1326 that they have stolen a quantity of cloth. Two of the sisters are again accused of theft in August 1326. They remain at large, thieving where they can.33
Families like the Waraunts are obviously a nuisance to their neighbors but, in relation to some gangs, they are relatively harmless. Far more serious are the armed criminals who use force against their victims. You really do not want to run into the likes of the Worcestershire gang leader Malcolm Musard, who in 1304 attacks a rectory with a group of archers, having been paid to terrorize the new incumbent by the aggrieved old one. Nor do you want to come up against John Fitzwalter, an Essex gang leader, who twice besieges Colchester and holds the entire town for ransom.34
How are these gangs able to remain at large? The answer will probably shock you. And yet it will probably not surprise you. The perpetrators very often have links with the richest and most powerful elements of society. A number of them are knights and members of the gentry or even the nobility. The earl of Devon threatens to murder a Justice of the Peace as he rides through the county. It is not unknown for a knight to draw his sword in court and hold it against a judge’s throat.35 Even the most prominent judges are affected by threats and bribes. Sir John Inge, a justice of the Court of Common Pleas, admits taking bribes. Sir Richard Willoughby is accused of “selling the laws like cattle” and fined £1,000. In 1350 no less a figure than Sir William Thorp, Chief Justice of the King’s Bench, is imprisoned for accepting bribes.
A good example of what the judges are up against is the Folville gang. At the time of his death (in 1310), John Folville, lord of the manors of Ashby Folville (Leicestershire) and Teigh (Rutland) has seven sons: John, Eustace, Laurence, Richard, Robert, Thomas, and Walter. The eldest, John, inherits Ashby Folville and remains within the law. The others do not. The most dangerous, Eustace Folville, inherits Teigh and joins with two of his brothers and the Zouche brothers (Ralph, Roger, and Ivo) in forming a gang to waylay their long-standing enemy, Roger Bellers. Bellers is an important man: a baron of the Exchequer, he is protected by none other than the king’s favorite, Hugh, Lord Despenser. Nevertheless, on January 19, 1326, on the road between Melton Mowbray and Leicester, they murder him. They drive a long knife down past his collarbone and into his heart.
The guilty men flee the country. In their absence they are declared outlaws. But they are in luck, because in September 1326, Roger Mortimer and Queen Isabella invade England and put an end to Hugh Despenser. All proceedings against the Folvilles are quashed, and they are pardoned. Free to return to England, and believing they have political protectors of their own, they embark on a series of robberies in Lincolnshire. In 1327 they grow bolder, roaming the highways with a larger gang of confederates, looking for victims to threaten, rape, and incarcerate for ransom. Over the next couple of years Eustace is personally accused of at least four murders, a rape, and three robberies, and these figures are almost certainly an underestimate of his crimes. But the net closes in around them once more, and, in late 1328, they are forced to rehabilitate themselves by joining Mortimer’s army in putting down the rebellion of the earl of Lancaster. They all secure pardons again. But while under Mortimer’s protection they loot the people of Leicester to the tune of £200 worth of goods.
Attempts in 1330 to arrest the Folville gang are ineffective. Their position in Leicestershire is unassailable. The eldest Folville brother, John, the only one who has taken no part in any crime, has by this stage been appointed a Keeper of the Peace. He may well be supplying his brothers with information. Sir Robert Colville tries to arrest Eustace at Teigh, but is beaten back and later accused of an illegal attack. Roger de Wensley is hired to track down both the Folvilles and the other notorious gang in the region, the Coterel gang (led by James Coterel), but when he finds the Coterels he simply joins them.
In 1331 the Folvilles are hired by a canon of Sempringham Priory and the cellarer of Haverholm Abbey. These clergymen, who have previously sheltered the gang from the law, pay them £20 to destroy a water mill belonging to a rival. Soon the mill is a smoking ruin. The Folvilles’ next crime is on a far more ambitious scale. They join forces with several other criminal gangs, including the Coterel gang; the Bradburn gang; the Savage Company (led by Roger Savage, a friend of James Coterel); Sir Robert Tuchet, former constable of Melbourne Castle; and Sir Robert de Vere, constable of Rockingham Castle. The plan is to kidnap a rich royal judge, Sir Richard Willoughby (the same judge who will later be accused of “selling the laws like cattle”). They seize him on January 14, 1332, while he is carrying out an oyer et terminer commission in the region. They rob him of £100 of his goods and ransom him for the colossal sum of 1,300 marks (£866 13s 4d).
Such extraordinary, reckless banditry cannot go unchecked, and it is with the Folville and Coterel gangs in mind that the most stringent of all the trailbaston commissions is issued in 1332. In charge are the three most important judges in the kingdom: Geoffrey le Scrope (Chief Justice of the King’s Bench), William de Herle (Chief Justice of the Common Pleas) and John Stonor (the previous Chief Justice of the Common Pleas). Despite this show of strength from the government, they fail to bring the key criminals to justice. James Coterel and Roger Savage retreat into the wilderness of High Peak forest in Derbyshire. Orders are issued to arrest no fewer than two hundred adherents of the Folville and Coterel gangs. Only a quarter ap
pear before the judges, and virtually all of them are acquitted by local juries, composed of men too scared to convict them.
In the late 1330s the Folvilles and the Coterels find ways to assimilate themselves back into society. A large number of them join Edward Ill’s military expedition to the Low Countries in 1338. After this, Eustace gives up crime. In an extraordinary turn of fortune he is knighted and dies peacefully in 1347, having served on the Crécy campaign the previous year. Leadership of the gang passes to Richard Folville, rector of Teigh. He and his fellow criminals meet their end in 1340, when their archenemy, Sir Robert Colville, finally catches up with them. Colville pursues them to Teigh, where they seek sanctuary in the church. After ten years of trying to arrest them, Colville has no intention of giving them any hope whatsoever, and he attacks. There is a bitter shootout; the Folvilles send volleys of arrows flying from the church windows but they are unable to resist Colville. They are dragged outside, one by one, and beheaded for resisting arrest.36
