by Alan Ereira
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,
And thrown into the highway so that someone should find it.*3
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 p
laces 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.
FOREST LAW
One of William’s first acts as conqueror of England was to create ‘The New Forest’. This didn’t mean he planted a lot of nice trees so people could enjoy a picnic in the shade. What he was doing was ear-marking a vast tract of land as his own personal hunting-ground. This is what the Norman word ‘forest’ meant. Whether there were trees or not wasn’t really the point. The ‘forest’ was wherever ‘Forest Law’ applied, and ‘Forest Law’ was not something anyone wanted to live under.
Towns and villages could be, and were, destroyed, and every animal and tree became royal property. The forest was administered by royal officials with draconian powers, who replaced the community as denouncers before the court.
The Anglo-Saxon Chronicle says of William:
He made many deer-parks, and he established laws therewith; so that whosoever slew a hart, or a hind, should be deprived of his eyesight. As he forbad men to kill the harts, so also the boars; and he loved the tall deer as if he were their father. Likewise he decreed respecting the hares that they should go free. His rich men bemoaned it, and the poor men shuddered at it.
The poor men shuddered at it because they were now under a set of laws that had nothing to do with common law, under which William destroyed their towns, villages and churches.
Hunting was an activity reserved by law for the nobility. It was, of course, their main occupation apart from warfare. Nevertheless, no king needed all the designated land for hunting; there was simply too much of it. It formed an alternative kingdom, from which he drew revenues and profits directly. Every monarch from William I to Edward I was denounced at one time or another for extending the royal forest and the abuse of the power associated with the law. This became a perpetual grievance, with kings forced to back off between bouts of afforestation of open country.
Forest law was deeply resented as a form of tyranny, and records show that entire peasant communities living in royal forests were often brought to trial for concealing offenders, protecting them, and refusing to help catch them or take part in investigations. The greenwood of the poems appears to represent a notional, pre-Norman land where officers of the Church and king were, in effect, foreigners at the mercy of the English, who lived by their own ancient codes. It is a nostalgic fiction, which serves as a standing reproach to those in power. The outlaw poet again:
You who are indicted, I advise you, come to me,
to the green wood of Belregard, where there is no entanglement,
just wild animals and pleasant shade;
for the common law is too unreliable.
This nostalgia did not mean that outlaws were non-violent. The earliest Robin Hood poetry is very comfortable with violence, and the outlaw poet is hardly a pacifist (he says, ‘I was never a killer, of my own will, at least’). But compared with the evil of the corrupt world of public administration, symbolized by the sheriff, the outlaw was a model of propriety.
SHERIFFS
The real sheriffs of Nottingham lived up to the one immortalized in the Robin Hood tales pretty well. Philip Mark, sheriff from 1209 to 1224, was celebrated for robbery, false arrest, unjustly throwing people off their property and persistent attacks on local landed interests, both secular and ecclesiastical. Henry de Faucemberg, sheriff from November 1318 to November 1319, and again between 1323 and 1325, was so in debt that he owed over £285 to the king and had to face charges of extortion. John de Oxenford, sheriff from 1334 to 1339, was accused in 1341 of ‘illegal purveyance, abusing his authority in regard to the county gaol and its prisoners, as well as various extortions’. He didn’t show up in court and was himself outlawed.
Another sheriff, Sir Robert Ingram, was an ally of the Coterel gang, notorious fourteenth-century bandits who terrorized Derbyshire and Nottinghamshire, including Sherwood Forest, from 1328 to 1332. These were no common criminals. They were ‘gentlemen’ like the Folvilles, probably the younger sons of landed gentry, who, when they were not committing crimes such as robbery, extortion and murder, often for money, were serving in Edward III’s wars in Scotland and France while holding public office as bailiffs and even Members of Parliament. The Coterels created their own framework of social roles, with lieutenants, recruits, organization, division of labour, maintainers and laws; one of their lieutenants, Roger de Sauvage, referred to the gang as ‘la compagnie sauvage’. James Coterel was accused in one indictment of recruiting 20 members in the Peak District and Sherwood Forest.
NOBLE OUTLAWS
The Coterel gang indicates the existence of a different kind of outlaw. There were many robber gangs that consisted largely of men of good birth who had no way of making a living except during wars. This was, to some extent, the consequence of a system of inheritance that passed everything to the eldest son. Outlaws were therefore often linked directly into the governing class. One of the accomplices in the Folvilles’ kidnapping of Richard de Willoughby was Sir Robert de Vere, constable of Rockingham Castle in Northamptonshire. The castle was a base for armed gangs who came and wen
t after dark. No-one bringing provisions to it was allowed to enter, to prevent them knowing who was there.
Some of these outlaws threatened to use violence to right the evils of bad government, under the banner of some kind of alternative rule. A letter from one gang leader has survived from the time of Edward III. Addressed to Richard de Snaweshill, parson of the church at Huntington in Yorkshire, and written in French in 1336, it commands in the name of ‘Lionel, King of the Rout of Raveners’ that he remove a priest from his office in the vicarage of Burton Agnes (evidently a relative of de Snaweshill) and then replace him with the man chosen for the job by the abbot of St Mary’s:
And if you do not do this, we make our avow, first to God and then to the King of England and to our own crown that . . . we shall hunt you down, even if we have to come to Coney Street in York to do it . . . Given at our Castle of the North Wind, in the Green Tower, in the first year of our reign.*6
There are plenty of examples of robbers coming from noble and semi-noble families. It appears that the career of outlaw was perhaps seen as a legitimate one for a well-born, high-spirited younger son – or a cast-off serving man of ambition. Ballads about outlaws imply it was not fair that death on the gallows should be the reward for intrepid and sometimes prankish feats – especially if the victims were mere usurers, monks or tax-gatherers.
This may be linked to another unique feature of England in the Middle Ages: the fact that knighthood was not hereditary. Primogeniture had become established over much of western Europe in the eleventh and twelfth centuries, and from the thirteenth century knights had to offer ‘proofs of nobility’ – show they were the elder sons of knights. This meant there was a universal younger son problem, but only in England could those younger sons earn a knighthood.
Moreover, only in England was knighthood a potential career for all comers – only there could a servant or the son of a tradesman win the spurs of military command.
This was possible because the feudal levy only produced a militia who served for a limited number of days a year and did not have to travel overseas. But England was an island kingdom fighting long campaigns overseas. This is why landowners were allowed to pay a tax rather than serve. Their service was not very useful. It made more sense to create knights from the ranks of landless men who needed pay. So England, more than anywhere else, offered wartime careers of status to landless men.
