Justice in late Anglo-Saxon England centred on the shire court, which met twice yearly and was overseen by the ealdorman and bishop. Direct responsibility for law and order fell to the sheriff, who supervised the work of local – hundred – courts. These met every four weeks. In addition to these, manor courts had delegated powers to deal with lesser offences. All those over the age of 12 were required to attend these courts. It was on this foundation that later medieval legal developments were built.
As the medieval period progressed the dispensing of justice became increasingly more formalized, with clearly defined responsibilities for dealing with different levels of crime. The royal courts and royal judges appointed by the Crown had jurisdiction over allfelonies. This arrangement was known as the Common Law because it applied across the whole country. Even the so-called palatinates of Chester and Durham (where bishops ruled with powers normally associated with princes) and, after 1351, Lancaster were still subject to the Common Law. An early explanation of what was understood to be covered by these laws was written in the 1230s by Henry of Bratton (known as Bracton) in a work entitled On the Laws and Customs of England. The laws passed by Parliament and known as Statute Law continually added to this body of laws and differentiated between levels of crime. The term felony was used in Common Law to describe very serious crimes, whereas misdemeanours, or in the Middle Ages trespasses, were considered to be less serious actions. In the Middle Ages crimes considered as felonies included murder, rape, robbery (taking the property of another by means of force or fear), theft of goods worth more than 5 pence and arson. These crimes were punished by hanging. A number of trespasses were also dealt with by royal judges and these covered crimes such as assault and the fourteenth-century laws relating to contracts, wages and prices. In the absence of a police force, law enforcement from the twelfth century relied on juries of presentment, which set up groups of jurors sworn to accuse anyone suspected of committing a crime in their local area. This replaced a system which relied on private prosecutions and by 1400 it was the source of almost all prosecutions.
A key feature of the administration of local justice was a system known as Frankpledge. With its roots in Late Anglo-Saxon times it made all freemen (except for clergy and knights) join a tithing of ten men, who were responsible for the behaviour of each other. In the event of one of them being accused of a crime, the other members of the tithing had the task of bringing the accused to face justice, or compensating the injured party. In practice the checking that everyone was a member of a tithing – called the View of Frankpledge – was the task of the manorial Court Leet. Any man not in a tithing was fined and the money went to the lord of the manor. In this way the system acted as a bridging structure between the control of petty local offences and more serious crimes. By making it a responsibility of the manorial court the task was offloaded from central government onto local lords, but the local lords could themselves profit from the administration of the system. At Weston (Hertfordshire) in 1340 the manorial court record listed the responsibilities involved in the Frankpledge system: to account for all members; to ensure all aged 12 years and over were members of a tithing; whether a hue and cry (hunt for a criminal) had occurred since the last meeting of the court; whether blood had been shed and, if so, by whom; whether any trespassing offences had been committed (e.g. a dung heap placed on the street, ploughing on a neighbours land, etc); naming those accused of theft; naming of receivers of stolen goods and counterfeiters of coins; names of any woman who has been raped; whether treasure has been unearthed; whether any use of false weights and measures had occurred. And the list goes on.1
Below the tier of the royal courts (administering the common law) and the intermediate layer of the system of Frankpledge were the manorial courts, which enforced the customary rules and obligations of local manors, punishing offenders with fines. In these courts actions were brought not only by the lord of the manor, since tenants could also bring complaints against other tenants, as when in 1331 Thomas de Totehille successfully brought a complaint against a neighbour for letting his dogs kill six of Thomas’s pigs. Or when John Packard was fined because he had not paid a fine of 13 shillings and 4 pence, owed on account of his wife Alice striking Margery, wife of William Wodebite, which ‘drew blood’. Or when, at Downham (Cambridgeshire) in 1311, William Bunting was forced to compensate Peter Gill 2 shillings for ‘beating and ill treating him’.2
The final form of law in England was Canon Law. This was the law of the Church: it applied across the whole of Western Europe and was administered in Church courts. It mostly dealt with behaviour amongst the clergy but also affected the laity since these courts had authority over the payment of tithes, sexual misconduct, validity of marriages, wills, heresy and witchcraft. There could be real tensions between this system and that of the royal courts, since clergy who had committed serious offences were tried in Church courts rather than in royal courts and were thus subject to much less rigorous punishment. Claiming ‘benefit of clergy’ meant a person claimed to be eligible for trial under a Church court, and this system was subject to much abuse. The proof of whether a person really was a member of the clergy was the ability to recite a Biblical passage in Latin. So, in addition to the whole issue of whether the clergy should escape the more rigorous justice of the royal courts for the same crimes as a lay person was the fact that anyone who could read (or memorize) a Biblical passage could claim they were a member of the clergy, whether they were or not. (For more information on ‘benefit of clergy’ and the definition of who was a cleric, see Chapter 4.) It was this issue of clergy exemption from royal justice for serious crimes which lay at the heart of the dispute between Henry II and Thomas Becket, Archbishop of Canterbury, in the twelfth century. After 1489 ‘benefit of clergy’ could be claimed by a lay person only on one occasion, but the fact that this could apply to crimes as serious as murder meant that it remained very controversial. Punishments in Church courts included public whippings (in the earlier centuries of the Middle Ages) and, more usually, public penance such as standing in the marketplace in undergarments holding a lighted candle. In Church courts men and women had equal status, although, as with courts operating under the Common Law, the unfree could not bring cases to these courts.
Access to these courts was denied to villeins, and women’s actions in law were limited to the prosecution of the murder of her husband (but only if he died in her arms), action which led to the loss of an unborn child and rape. Magna Carta (1215), in Article 54, asserts: ‘No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband’. Also, the evidence suggests that it was very unlikely that charges of rape would result in successful prosecution of the perpetrator. This was particularly so if pregnancy ensued since it was assumed that conception could only occur if sexual pleasure was mutual. The subservient status of women could, conversely, operate in a woman’s favour if she was charged as complicit in crimes committed by her husband, since it was judged that if she acted on her husband’s instructions it was he who carried the blame, since she was bound to obey him.
The two highest courts in England by 1250 were the court of common pleas (normally sitting in Westminster although in the fourteenth century occasionally in York) and the court of king’s bench (meant to travel with the king, though by the second half of the fourteenth century also usually sitting in Westminster). The court of common pleas dealt with disputes over property and that of king’s bench dealt with felonies and with appeals from lesser courts. To open a case in common pleas a person first had to pay for a writto be issued (which identified the complaint, named the defendant and compelled them to answer the complaint before the court) and then pay for an attorney to plead the case before the royal judges. This could be an expensive business.
In addition to this system, royal judges were also sent out into the regions on tours known as eyres. These tours were meant to happen every seven years. After 1294 this was abandoned and replaced by local assize judges and commissions of oyer and terminer. The assize judges moved through circuits of adjacent counties and dealt with offences which had occurred there since their last sitting. This was meant to happen at least three times a year. Commissions of oyer and terminer, on the other hand, were sent out to deal swiftly with local disorders and local abuses of power. A similar system was the commission of Trailbaston, sent out to deal with the organized criminal activities of armed gangs. While these illustrate the problems of local lawlessness they themselves were often accused of corruption and of being arbitrary in their actions. They failed to stop the Folvilles and the Coterels (organized crime gangs, see pp. 156–7), for example. During the late thirteenth century keepers of the peace were also appointed with some policing duties and, by 1400, these had evolved into local Justices of the Peace (a title first used in 1361), who sat in judgement at least four times a year (in Quarter Sessions) and dealt with less serious offences. They came to be a vital local arm of government: fixing wages and prices, building and controlling the use of roads and bridges, and supervising those local services thought by the Crown and Parliament to be necessary for the welfare of the country. The Quarter Sessions were not replaced by Crown Courts until 1972 and reveal the long-lived nature of many medieval institutions. By a law of 1389 the early Justices of the Peace received a subsistence allowance of 4 shillings a day. This appears to have soon lapsed, since most JPs were drawn from the local elites and, as wealthy landowners, could manage without this assistance.
Punishment and criminal burials
Despite the changing nature of the medieval justice system, one surprising aspect is how little it relied on prisons. Prison as a major form of punishment is largely a modern invention, dating from the later eighteenth and early nineteenth century. It was not until 1576 that JPs were required to build houses of correction in which rogues and vagabonds could be detained. These were apprehended by village constables, who were unpaid members of their local parish and were conscripted for service annually. Prior to this, punishment relied far more heavily on execution, other forms of physical violence, outlawry and fining. Medieval prisons were primarily holding places for those awaiting trial, rather than the place of punishment itself. In London in 1475 arrangements for bringing prisoners to trial changed. Instead of so-called gaol delivery taking place once a year (as was usually the case under the old system), it was now to be held at least five times a year. This must have been a relief to the prisoners awaiting trial.
However, medieval prisons certainly existed. One of the more famous was Clink Prison, set up in the twelfth century under the authority of the bishop of Winchester in Southwark, on the south side of London Bridge. In the area today known as Bankside the bishop built separate prisons for men and women. The fact that a prison was sited here was a product both of the bishop’s authority and the criminality of the area. This is because Southwark was complex, both socially and legally. The borough contained inns and public gardens and was fashionable as the residence of great men. By the end of the thirteenth century a number of town houses of powerful Churchmen and nobles were sited south of the Thames here – from this position the river provided them with easy access to Westminster. Sir John Fastolf, who gained fame in the French wars, was among the well-known inhabitants of Southwark. He owned a considerable establishment there during the fourteenth century. Even more impressive was the bishop of Winchester’s house, just west of the bridgehead. Traditionally, this was an area where lay and ecclesiastical franchises had grown up and claimed independence from royal justice. As such, they offered privileged positions to these landowners but also afforded shelter to fugitive criminals and debtors. This led to increased criminality in the area. In a number of cases, land leased from the Church in Southwark became used forstews (brothels), since they were out of the stricter control of royal authority or that of the City of London to the north of the Thames. This applied to land owned by the bishop of Winchester and the prioress and nuns of St Leonard’s Priory, Stratford at Bow. Hence the bitter jibe of Duke Humphrey to his uncle Cardinal Beaufort – bishop of Winchester 1404–47 – in Shakespeare’s Henry VI, part I: ‘Thou that givest whores indulgences to sin’ (1.3.35).
One of the reasons why prison appeared low on the sentencing options was the prevalence of capital punishment. And this reveals itself in the oft-neglected area of medieval execution cemeteries. Even as men and women in mid- to late Anglo-Saxon England were subscribing to burial in cemeteries around churches, another form of burial rite is noticeable in the archaeological record. These deviant burials occur away from community cemeteries. This became particularly significant since, from about 850, the community cemeteries were in ground that was regarded as being hallowed by its proximity to a Christian place of worship. In this way both the living and the dead formed one Christian community – those on earth and those in heaven (with their mortal remains buried near a church and awaiting the Last Judgement). In view of this the rejection of certain burials (and their placing elsewhere) is all the more striking and must have been regarded as so by the contemporaries of those categorized as deviant.
Both small and large execution cemeteries are known from the middle to later Anglo-Saxon period and into the twelfth century. A number of very characteristic deviant burials, in which bodies show signs of violence or strange orientations very different from the norm, occur around Mound 5 at Sutton Hoo (Suffolk) and were probably placed there when this (once-elite) burial ground had become taboo due to its use in pagan times. Another very striking example was discovered beheaded and buried at the world-famous site of Stonehenge in Wiltshire. This was radiocarbon dated in 2001 to between 600 and 690, although this date has since been revised and this particular execution burial may have occurred as late as 890.3 Similarly, archaeologists excavating a large Bronze Age round barrow at South Acre (Norfolk) found it was reused in the Anglo-Saxon period, with over 100 secondary burials. Many of these were in shallow graves. Some graves contained multiple burials and none showed signs of being ceremonially placed in their graves. There were no children and most were young adults. Eight appeared to have been decapitated, seven were buried facing into the earth, while others appeared to have been bound. This was almost certainly a cwealmstow – an execution place.4 Many of these places were sited at boundaries of hundreds and shires and became locations of both execution and burial of excommunicated criminals. It is likely that many of the references to ‘heathen burials’ found on charter boundaries refer to these execution cemeteries, rather than to burial grounds dating from before the conversion to Christianity.5 Evidence from both archaeology and charters suggests that by the tenth century this separation of criminals and social outcasts from cemeteries used by the rest of the community had become widespread in England. There are some clues which suggest that drowning was sometimes used both as a method of execution and of disposal of the body, and may be linked to the belief that water acted as a barrier to ghosts.
During the eleventh century the practice of burying criminals at boundaries began to be replaced by the claiming of bodies of criminals for burial by certain monastic orders. The order most commonly associated with this was that of the Knights Hospitaller. Sometimes these burials took place in parish churchyards, or in churchyards of the order, such as the Pardon Churchyard in Clerkenwell, London. There are examples of Hospitallers claiming the bodies of executed criminals in places as varied as Ilchester (Somerset), Aylesbury (Buckinghamshire) and York.6
Throughout the Middle Ages the death penalty was used for a wide range of offences including property crimes where items stolen were worth more than 12 pence. This applied to all over the age of ten, which is when children were regarded as having reached the age of criminal responsibility. The most usual method of execution was hanging, although a woman found guilty of murdering her husband could be burnt at the stake. This was because this was regarded as petty treason.
Crime levels and ‘moral panics’
The study of medieval law and order raises an important question: how criminal were the Middle Ages? The answer is that levels of criminality varied across the period but were surprisingly high. Murder rates for East Anglia in the fourteenth century were comparable with those of modern-day New York. In England generally the homicide rate was far higher than that of urban USA today.7 Evidence from traditional rural peasant communities – such as Russia before Collectivization in the late 1920s – reveals that a great deal of violence occurred both in domestic disputes (particularly involving male violence against women and children) and in disputes between neighbours. No doubt those involved would have recognized the scenario, from 1312, in which Robert of Starston (Norfolk) threatened Thomas his brother with a knife; the dispute was over land. In retaliation, Thomas killed Robert with a cart shaft. As Bruce Campbell has noted, such acts of violence between tenants were related to the scarcity of land in Norfolk at the time and ‘are generally passed over with less comment [in medieval records] than those between tenants and landlords’, for the simple reason that they did not threaten the social order. A peasant killing another was a crime but not a challenge to the position of the local elites.8 Overall, then, it is justifiable to say: ‘There was clearly a casual and easy resort to violence, not just the minor fist fights and assaults with sticks, pitch-forks and knives recorded in manorial court rolls but also murder . . .’9
However, certain specific events seemed to have triggered an upsurge in the rate of crime, such as the return of Edward III’s army from the siege of Calais in 1347 and the return of soldiers from more general campaigning in France in 1361. Such was the scale of the problem that local Justices of the Peace were empowered to force these returning soldiers to take up jobs in an effort to prevent them from turning to crime. No doubt crime rates rose at other times too, due to similar war-related circumstances, but we lack the detailed records necessary to chart the effects. As an aside, the conduct of these returning soldiers in England makes one realize the appalling impact of English ‘military adventures’ on French communities during the Hundred Years’ War. This can often be overlooked in favour of the heroic clash of arms involved in a Crécy, or an Agincourt. In between times many of the common soldiers would have been looting and raping and murdering defenceless French civilians. War provoked increased crime in other ways too. Increased taxation and forced sales of provisions for the army struck at commercial activities and could cause middle-men and -women to pass on the demand for cash as they, in turn, put pressure on their debtors further down the social scale. This tendency is very noticeable following the Scottish victory over the English in 1314 and the resumption of war with France after 1337. The result of this pressure shows itself in poor peasants selling tiny pieces of land in a desperate effort to pay their debts. In 1315–21 many people begged and stole to survive and ‘crimes against property mushroomed’.10 For much longer periods the unsettled conditions on the northern border with Scotland allowed criminal activities – often under cover of acts of war – to go unpunished.11
Crime rates might rise in the specific circumstances outlined above but, as in modern societies, would more usually have been related to downturns in the economy and other social and economic causes. The structure of the medieval economy aggravated this tendency as some historians have observed: ‘A market economy and a subsistence level of production – this could be a most unfortunate combination, and those who lived with it lived dangerously’.12 For many such people drifting into petty crime to avoid destitution would have been a temptation at times of economic recession. Evidence from court sources suggests that the period around 1300 saw an upsurge in petty crime which accompanied just such a period of economic distress. For example, a close relationship has been shown between women stealing food and clothing and years of poor harvests.13And if the items stolen were worth more than 12 pence these criminals were hanged. The unsettled years of the later fourteenth century were similarly accompanied by increased crime, as well as by societal anxieties which are not unique to the Middle Ages. In 1376 the House of Commons petitioned for stricter penalties against vagrants. This was one of a number of such petitions associated with falling grain prices and landlords laying off large numbers of agricultural labourers. The interesting point is that it was the increase in the numbers of mobile workers which alarmed the propertied classes, and indeed it may well have been the case that among such groups of wandering and begging workers there was an increased inclination towards crime. There are echoes here of the later Elizabethan laws against vagrancy during another economic downturn in the later sixteenth century.
The problem did not go away and further laws against vagrants were passed in 1414 and 1446. The later Vagrancy Act of 1495 stated that beggars should be arrested, put in the stocks for three days and afterwards returned to their original place of residence. The idea was taken up by local authorities in a number of cases. In 1500 city authorities in Gloucester ordered the registration of all beggars and, in 1504, expelled most from the city. In 1515 the authorities in York issued official badges to beggars who – due to illness or injury – were considered legitimate, in order to differentiate them from those considered work-shy and a social nuisance. These latter, termed throughout the sixteenth century as sturdy beggars, were the subject of a long-lived social panic but may indeed have been associated with rising crime statistics. In 1531 a national law took up practices already experimented with in places such as York; by this act all beggars were to be classed as either worthy of licence or liable to punishment. Justices of the Peace were ordered to put the new law into effect. More and more towns adopted the badge scheme. In 1533 an ordinance in London banned begging, put beggars to work (paid for by charitable gifts to a central fund) and sent their children into household service. As with so much of such legislation, in which experiments in social policy in different towns were later taken up by national government, this radical scheme became effective nationwide by a law of 1536. This decision was accelerated by the problems caused by closing down monastic almshouses and hospitals which had previously assisted many poor people. The new law may have been thought necessary because of the closing of Catholic institutions, but its implementation was slowed down by Catholic practices. Alms giving was too strong a tradition within medieval Christianity to ban it. In 1552 the government again attempted legislation to enforce the law of 1536, but this time without attempting to ban voluntary alms giving.
The extent of the ‘moral panic’ over beggars is seen in the attempt, in 1547, by the Vagrancy Act to temporarily enslave beggars as a way of forcing them to work. This law was impossible to enforce, however, and was repealed, but it reveals the depth of the concern gripping the minds of lawmakers in the mid-sixteenth century. That there was a major social problem lying behind this anxiety cannot be denied. In 1549 and 1550 both Norwich and York introduced compulsory taxes to support the deserving poor. And earlier, in 1546, a textile factory employing about 2,000 unemployed people was established in Oxford. While this illustrates a concern with separating out the ‘deserving’ from the ‘undeserving’ (without tackling the underlying causes of the increase in unemployment), at least these responses attempted to provide some relief to the unemployed as opposed to criminalizing them.
Given the heightened activities against groups of lower-class beggars, it is a revealing contrast to examine the impotence of the law when facing organized crime. Some of the most striking examples of crime of the fourteenth century were caused by organized gangs of criminals, often linked to members of the lower aristocracy. Such gangs of well-connected thugs could terrorize a region. This was certainly the case in the early fourteenth century with the Folville and the Coterel gangs.14
Medieval criminality flourished especially in times of political turbulence. During the reign of Edward II and the early years of the reign of Edward III a number of well-connected gangs terrorized large areas of England with virtual impunity. The status of their leaders as members of the local aristocracy gave them power and connections which allowed them to escape royal justice and to further their careers of criminal brutality. In their levels of criminality and in their apparent immunity to government action they resembled the organized crime gangs that have at times plagued modern states. None were more notorious that the Folvilles and the Coterels. The Folvilles were a group of younger brothers from a Leicestershire gentry family. For about a decade they terrorized their local community from their base at Ashby Folville, which they called ‘The Castle of the Four Winds’. They committed murder, rape, assault, robbery and kidnapping. In 1326 the Folville brothers murdered a senior member of the government tax-gathering service. In 1332 they kidnapped and ransomed a royal judge, Sir Richard Willoughby. Through their intimidation of local juries and assisted by the corruption of judges and sheriffs they escaped punishment. In alliance with another criminal gang – the Coterel brothers – their reign of crime extended into Nottinghamshire and Derbyshire. In the absence of an effective policing system such violent and determined medieval criminals were more common than might otherwise be imagined.
The tendency of such gangs to target certain vulnerable groups, such as travellers on the open road, led to the Statute of Winchester in 1285 ordering that a verge should be cleared of brushwood for 200 feet on either side of the highway, in order to avoid providing cover for thieves preying on travellers. The road between London and Winchester was so regularly menaced by gangs of robbers at the time of Winchester’s St Giles’ Fair each September that the city authorities at Winchester organized patrols along the road to deter these criminals.
These organized criminal gangs often escaped the application of the full rigour of the law because of their powerful connections and a significant level of corruption amongst the law enforcement agencies in the regions. This stands in marked contrast with the amount of energy such agencies put into punishing beggars. More common than such well-connected criminal gangs were cases where peasant families cooperated in less serious crimes such as sheep stealing.15 The crimes of theft, burglary and receiving stolen goods appear frequently in manorial records as indicators of these local webs of criminality. In this way, at Wakefield (Yorkshire) in 1316, Adam Vapurnient of Wiveley and Agnes Spire were accused of ‘burgling the house of Robert Alayn of Bretton and stealing woollen and linen clothes, meat and other goods to the value of 5 marks. Margaret of the Wodhall of Wiveley to be attached [arrested] for receiving them and the stolen goods.’ There was clearly a rash of such crimes in Wakefield since the record relating to the opening of the manor court had earlier referred to ‘frequent burglaries and the great number of thieves’ in the area. The same court then went on to list some 8 acts of violence and 16 thefts under investigation. Within the latter were the cases of Eva and William, who had received stolen goods; John Maufesour for burglary; Thomas the forester for stealing a dish and a carpet from the same house; Mauger the Turner for assisting thieves; Henry Shepherd and his brother John who were hanged for stealing horses and cattle; Marjory for burglary and stealing money, a tunic, a surcoat and a silver buckle; Richard of the Ker who caught a nameless thief burgling his own house but, as well as retrieving a stolen shirt, also recovered (but kept for himself) a shirt the thief had taken from the house of Robert the Leper; and at the same time Maud the daughter of Richard of the Ker had stolen food from this same Robert the Leper’s house. Finally, there was Elias the Saucer who stole 40 herrings which were worth 4 pence. In addition, the above-mentioned Richard of the Ker was apparently keeping ‘Margaret daughter of Thomas in incest’, though what this meant is unclear.16 All of this speaks of a high level of criminality in one community.
The continued economic problems of the mid-fifteenth century saw increased anxiety on the part of lawmakers and law enforcers concerning the criminality of the lower classes. Some of this has already been touched on with regard to begging, but the concern ran deeper and wider than anxieties over vagrancy. Local courts were increasingly concerned with matters relating to unrest at alehouses, problems of gambling, and accusations of prostitution and other forms of sexual immorality. Disorder seemed to be on the increase, and the court records from 1450 onwards reflect this ‘reality’, or this ‘anxiety’; it is difficult to tell which word best describes what was occurring. What was definitely going on was a growing willingness of courts to take on matters of morality which before 1400 would have been considered the responsibility of Church courts. Prosecution of adultery and fornication and punishing of prostitutes increasingly became matters of concern to local courts. Priests occur in increasing numbers among those accused of sexual offences, including charges of rape. When this is viewed alongside a number of examples of parishioners castrating their local priest it seems clear that the moral mood was changing within a significant section of the population. In this there was a flowing together of two currents: anxieties over increasing disorder on one hand, and on the other a trend towards personal spirituality that was more focused on expectations of holy living.
How far these currents flowed across society is difficult to judge, but they were clearly highly influential as the fifteenth century gave way to the sixteenth, and would influence how many areas of society would develop in the later Middle Ages and beyond. In 1492 this new mood was summed up in new civic laws passed in Coventry. The intention was to radically reform the moral structure and character of the town and threatened the disciplining of urban officials found guilty of adultery and the punishment of barmaids if they were considered to be acting as prostitutes. The reference to women was telling. The new mood contained a high level of anxiety over illicit sexual activity, which was increasingly being regarded as a crime, with lone women accused of encouraging prostitution and petty criminality. The Coventry ordinances attempted to put an end to economically (and hence socially) independent single women by insisting that any single women younger than 50 should go into service with a household until they were married.
The abuses and limitations of the law
As with all systems, the system of law in the Middle Ages was open to abuse. Royal justices were at times accused of corruption. Indeed, Sir Thomas Willoughby, who was kidnapped by the Folville gang, was himself accused of selling laws ‘as if they had been oxen or cattle’. As we saw earlier, under Canon Law those lay people who were able to quote a memorized Latin verse of the Bible could escape the punishments of the royal courts by claiming the right to be tried by Church courts instead. In addition, the cost of litigation meant that wealthy landowners could financially cripple rivals by bringing land disputes to court even if the case was dubious. Numerous examples exist of such cases and also of aggressive litigants accompanying these actions with violence and intimidation as part of a campaign against a rival. By the fifteenth century such disputes had become so widespread that many landowners thought it prudent to send a son to the Inns of Court, in London, where lawyers were trained. Having a lawyer in the family was a useful weapon in a local landowner’s arsenal of defence (and attack). The increasing scale of legal property disputes can be seen in the fact that while some 900 writs were issued in the early fourteenth century, about 2,500 were issued in the early sixteenth century.
The Paston family of East Anglia (famous for their surviving letters) were locked in just such a bitter dispute with a rival – Lord Moleyns – over the ownership of the manor of Gresham (Norfolk). Each side used violence at different times to take control of the manor. John’s wife, Margaret, wrote to him in 1449:
Get some crossbows and wyndlacs [hooks to wind back the bow] to wind them with and quarrels [crossbow bolts]. For this house has so few of them that none of our men can shoot out, although we have never had so much need.
Partryche [one of Lord Moleyn’s men] and his friends are frightened that you will get in [to the house they had taken from the Pastons]. They have made bars to bar the doors, and they have made wykets [holes to fire through] on every corner of the house to shoot out through, both with bows and hand-guns.
I ask that you will make sure that you buy me 1 lb of almonds and sugar and that you will buy some frese [cloth] to make a gown for your child.
Crossbows, arrows, some almonds and sugar, plus some cloth for a spot of home-tailoring . . . Just an everyday shopping list for Margaret Paston! While this may have been a rather extreme example, it illustrates how violent such disputes over land could become. And it could occur on a much smaller scale too. In 1451 the Pastons were in dispute with neighbours again. This time it was over a wall which neighbours claimed encroached on their land. John Paston’s mother, Agnes, wrote to him: ‘Someone came from church and pushed down all that was built there and trod on the wall and broke some – but I cannot discover who it was.’ Later, in November 1451, she wrote to him again of a report that she had received: ‘Men from Paston [village] would not go on procession further than the churchyard on St Mark’s day. For the route of the procession was blocked, and that men hoped that in a short time the wall would be broken down again.’17
Despite the problems of the Pastons, the legal system in the Middle Ages was fairly effective at protecting property rights and titles but much less effective in tackling crimes of violence against the person. It was almost totally ineffective, for example, in punishing rape. Such ineffectiveness was aggravated when the accused were well connected and able to intimidate jurors and/or bribe judges. As with much crime prior to the twentieth century with its modern forensic aids, detection was almost impossible and most successful prosecutions relied on a criminal being caught in the act, or being accused by someone who had (or claimed to have) knowledge of the crime. Court records reveal the kinds of cases in which justice was most easily applied: ‘Wakelin the son of Ranulf killed Matilda Day with a knife. The village, and twelve jurors, testify that he was caught in the act with a bloodstained knife, and so it cannot be denied. He is to be hanged.’18 However, at times careful investigation might lead to successful prosecution if witnesses could be tracked down and persuaded to speak. In this way, in 1248, the gang of people responsible for robbing two foreign merchants at Alton (Hampshire) were eventually tracked down and several hanged. A similar process tracked down those responsible for attacking and robbing Geoffrey Chaucer at New Cross, in 1390. But, of course, both these crimes affected members of the elite, who were well placed to put pressure on the authorities to pursue those responsible. In the event of such a crime being discovered it was the duty of any citizen who became aware of it to raise the hue and cry, and it was then the duty of all who heard to join in and attempt to catch the offender. For raising the hue and cry unjustly against another, a person could be fined, as was Agnes Brigge, who was fined 3 pence at Brandon (Suffolk) in 1385 for wrongly raising the hue and cry against John Folsham.19
When a crime was brought to court the medieval system faced the difficult question of how to prove guilt, or establish innocence. Early answers to this quandary relied on processes which were designed to test innocence by reference to God, or the neighbours of an accused. With regard to God, the use of ordeal involved a defendant undergoing a severe physical test. For example, the defendant was required to pick up a hot object and the state of the wound was then checked after three days; healing being taken to indicate innocence. An alternative was trial by combat, in which defendant and accuser faced each other in battle and victory was thought to go to the one of which God approved. Trial by ordeal was abolished in 1215 and trial by battle declined quickly, but was not formally abolished until 1819! On the other hand reliance on neighbours involved an accused person finding enough people of sufficient standing who would be willing to swear on oath concerning the good behaviour and character of the accused. The flaws of this procedure are immediately apparent. Firstly, a person’s previous actions are not necessarily a guarantee of their innocence in a current accusation. Secondly, it raised the obvious problem of a defendant’s innocence being established solely on the basis of their skills at social networking.
The system of oath swearers developed into the more effective system of trial by jury during the thirteenth century. In this system elements of the previous system were combined with an attempt to create a more neutral and effective approach, as local juries were supposedly selected from reliable people who then swore to reach a verdict based on local knowledge of events and reputations. Such a system could be very effective. Henry of Bretteby killed his son when the two were out ploughing. But the jury of local men knew the two well and were sure it was an accident because, as the verdict records: ‘They know for a truth that Henry would rather have killed himself than his only son’.20 This use of juries increasingly developed into a system which examined the limited evidence in order to reach a verdict. It was this system of evidence and of trial by jury which Magna Carta refers to:
Article 38: In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
Article 39: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.21
However, in deciding guilt, or innocence, the very severity of the law was itself a problem. It was common for juries to declare an item was worth less than a shilling (12 pence) in order to avoid a crime incurring the death penalty. More complex was the matter of pardons. By the mid-fourteenth century it was common for violent criminals to be given a royal pardon in return for military service in the French wars. Charters of pardon could also be bought as a way of raising money for the Crown. This was corruption of justice originating at the highest level. And it helps explain the behaviour, referred to earlier, of some members of the English army in France and on their return to England.
Attitudes towards law: the legend of Robin Hood
The legend of Robin Hood has so coloured our image both of ‘him’ and of medieval outlaws that it is difficult now to think of criminality in the Middle Ages without this romantic – and mythologized – image springing to mind. When, in 2007, a British Chancellor of the Exchequer presented his budget to Parliament, the Independent newspaper could rest assured that its readers would fully understand the allusion in its comment: ‘Old-style socialists liken themselves to Robin Hood by seeking to tax the rich to help the poor. But when it comes to British business, the Chancellor has become a latter-day Sheriff of Nottingham.’22 Regardless of whether its readers agreed, or disagreed, with the political judgement, all will have understood the basis of the characterization Robin Hood = good, Sherriff of Nottingham = bad. Indeed, so positive is the modern image of Robin Hood that when a modern Wiltshire-based Christian charity sought to engage individuals and companies in Britain with its work among some of the poorest communities of Eastern Europe, its mission statement declared it was ‘. . . committed to relieving poverty through direct action’. And its name? ‘Robin Hood Ministries’.23 Once again, we understand the reference and the values of sharing out wealth to those in need which are inherent in the name. What is more intriguing is that a fifteenth-century audience would have understood the reference just as well. We know this because the first poem celebrating the deeds of Robin Hood appeared in 1450 (Robin Hood and the Monk) and a large number of records from the same date reveal that dressing up as Robin Hood was one of the most popular options among rural communities collecting money for their local church at celebrations called May Games. But who and what was Robin Hood? And what does the growth of his legend tell us about popular attitudes towards law and order and definitions of crime in the Middle Ages?
Firstly, what are the historic origins of the Robin Hood legend? Perhaps the most detailed analysis of the large amount of evidence relating to this elusive outlaw has been carried out by Professor James Holt.24 In short, what emerges from the analysis of a vast amount of complex evidence is that probably the first (securely datable) reference to such a criminal – in this case named Robert Hod – is from the York Assizes of 25 June 1225. In this year the king’s judges ordered the seizing of the goods of ‘Robert Hod, fugitive’. A year after this original record there occurs another reference to this action but this time the outlaw is given the more colloquial name of ‘Hobbehod’. Whether this man was the original Robin Hood is impossible to say. The record gives no more information about his crimes, nor his modus operandi, nor the location of his activities. But what is clear is that within about 50 years the same name was appearing as the adopted name of a significant number of criminals. And in these cases they are adopting thewhole name as a surname, which suggests they considered it an appropriate ‘tag’ for themselves and their activities. They include:
1262. William Robehod, in Berkshire. Crime: membership of an outlaw gang and robbery.
1272. John Rabunhod, in Hampshire. Crime: murder.
1272. Alexander Robehod, in Essex. Crime: theft.
1286. Gilbert Robehod, in Suffolk. Crime: unspecified.
1294. Robert Robehod, in Hampshire. Crime: sheep stealing.
These are by no means isolated examples25 – the name appears again and again in similar circumstances. Clearly, Robin Hood had become a national legend before the end of the thirteenth century. And the criminal nicknames apparently refer to more than just Robin himself. In 1313, in Kent, the search was on for a fugitive accused of murder, named ‘John of Shorne, called Little John’, a character closely associated with Robin Hood in the later legends. It is likely that the emerging legend owed its origins to the actions of a number of these Robin Hoods: ‘. . . there was not just one “original” Robin Hood, real or fictional, but many. Each one acknowledged the legend by adopting the surname or by accepting it from others. Each one contributed to it and thereby became difficult to distinguish from the legend itself. Each one was real, committing real crimes, engaged in real adventures . . .’26
During the fourteenth century tales associated with Robin Hood became firmly embedded in popular culture. In William Langland’s poem Piers Plowman (dating from about 1377) the character ‘Sloth’ confesses:
I do not know my paternoster perfectly as the priest sings it. But I know rhymes of Robin Hood [written as Robyn hood] and Randolf, earl of Chester.27
We would like to know more about what specific activities had become associated with the legendary outlaw by this period. However, while there is little specific information regarding the ‘shape’ of the legend in the fourteenth century, this is remedied in the fifteenth century when the content of the legends becomes more apparent from the surviving sources. In 1420 Andrew de Wyntoun wrote a rhyming chronicle in which under the years 1283–5 he claimed:
Then Little John and Robin Hood
As forest outlaws were well renowned,
In Inglewood and Barnsdale
All this time they plied their trade28
In the 1440s another Scots writer referred to ‘the famous murderer, Robert Hood, as well as Little John’ coming to prominence in 1266.28 Another of the earliest examples of evidence is a piece of graffiti-poetry written on the edge of a 1432 document listing those elected to Parliament from Wiltshire. It pretended to list the surnames of those elected but instead carried the contrived message:
The question then arises: what are the common features of these early legends? Certain themes run through a number of them: the virtue of life in the Greenwood; quarrels amongst the outlaw band; Robin’s devotion to the Virgin Mary; Robin rewarded by a post in royal service; disguise used to defeat enemies; villains are the Sheriff of Nottingham, bishops, a greedy abbot and a treacherous monk; Robin is a yeoman; he is based in south Yorkshire and Nottinghamshire. What is missing is rather striking: no battles with quarter-staffs, no Maid Marian, no mention of Richard the Lionheart (only ‘Edward our comely king’ is referred to), little mention of oppressive taxes, no reference to Robin as a dispossessed nobleman – and there is little about robbing the rich and giving to the poor! The earliest discernible Robin Hood is a complex character. He attacks rich monks, the royal Forest Law and the local sheriff. But he is not a revolutionary. He reveres the king and there is little evidence of a campaign for social justice. There is no romance. As a ribald disturber of the peace, he is the spokesman of the middling sort of yeomen against those who irritated them and thwarted their ambitions, and he is the enemy of corrupt and powerful men.
So what does his popularity tell us about medieval attitudes towards crime? The first thing is that the earlier supporters of Robin Hood’s fame were not deluded into thinking crime was likely to right wrongs. It was not that which appealed to them. The evidence suggests that it was a rough-and-ready attraction towards outlaws who lived by their wits, and to crime which seemed acceptable because it targeted popular figures of resentment – such as local government officials and wealthy Churchmen. Mixed in with this was a romantic notion of life ‘in the Greenwood’. In the same way mythologized views of more modern criminals – such as Jesse James, Bonnie and Clyde in the USA, the Great Train Robbers in the UK – offer similar and surprisingly sympathetic views of criminals on the run. These gloss over the violence of their crimes while seeking to reduce the criminality of their actions by defining their victims as depersonalized institutions (such as banks). If the popularity of Robin Hood tells us anything about medieval attitudes towards crime it is probably that, in an environment of fairly widespread petty criminality, people were prepared to tolerate it in others when they themselves were not affected by it and when victims did not evoke sympathy. This sounds very like the reality expressed in the court record of Richard of the Ker apprehending a thief who was stealing from him, but being quite prepared to help himself to the shirt of Robert the Leper. In the absence of more detailed crime statistics, this is probably as far as the analysis will take us. But it does seem to offer an insight into a fairly common medieval outlook.