THE OUTLAWS OF MEDIEVAL ENGLAND are still the stuff of legend. Heroes who bestrode the greenwood, fearlessly wearing only tights and little short tunics that hardly covered their bottoms – the figure of the medieval outlaw has come to represent freedom and justice for the common man.
Outlaws inhabit a kind of border territory in our medieval myth, crossing back and forth between the pantomime vision of a jolly and well-ordered medieval kingdom and the dark image of horribly violent and barbaric lawlessness. Taking a cool look at reality not only reveals the truth and falsehood in both these images, but also clarifies what has emerged as a central theme of this whole book; the way in which medieval lives in England became different from those in the rest of Europe, as a distinct national society emerged.
Perhaps the most surprising example of that distinctiveness is that in England, uniquely in Europe, bold robber outlaws were necessary for the effective functioning of the kingdom.
This will all be explained as we investigate whether bandits like Robin Hood really existed, whether the forest was truly a place of freedom and escape, and, of course, the key question, did outlaws never wear trousers?
There certainly were plenty of outlaws in the Middle Ages, in fact, more than one might imagine. By the end of the period, historians tell us, practically everyone got outlawed at some stage of their lives. It had become a minor inconvenience – a bit like having your credit card stopped.
It is true that there were some other outlaws whose violence blighted society, but even there things are often not quite what one might expect.
Take the drama that engulfed the little village of Teigh, in Rutland, one afternoon in 1340.
A REAL-LIFE OUTLAW GANG
A gang of armed men broke into the church, and the rector, whose place of worship it had been for twenty years, was dragged outside into the street and beheaded. The twist, however, is that the gang of armed men who slew the man of God weren’t the outlaws. It was the rector who was the outlaw. His name was Richard Folville and he was one of six brothers who made up the notorious Folville Gang.
A generation after their deaths, the Folvilles were celebrated as the kind of outlaws who righted wrongs. One chronicle tells how they: ‘took the law in to their own hands’ and rode out to right injustice with the force of arms. ‘Folville’s Laws’ became a synonym for ‘justified robbery’. They killed a widely-hated judge in the court of the Exchequer, and kidnapped a justice of the King’s Bench whom a contemporary poem indicted as corrupt.
So were the Folvilles the real-life Robin Hoods? It would be exciting to report that they were, but they weren’t.
The Folvilles were the younger sons of minor aristocracy, who drifted into a life of crime to support themselves in the style to which they were accustomed. They weren’t robbing from the rich to give to the poor, they were simply robbing, raping, beating, kidnapping and killing as a livelihood.
And yet they were still held in some esteem in later years. They were acquitted on charges of murder when brought to trial and the justice of the peace who rid the world of Richard Folville, the rector, was forced to do penance – touring the local parishes and being beaten at each church.
It seems that people in the Middle Ages may have had an ambivalent attitude not simply to the Folvilles but to outlaws in general and to the very question of bold robbers. Maybe that’s how one of our most popular legends came about.
THE REAL ROBIN HOOD?
If there ever was a real Robin Hood, he’s surprisingly hard to pin down. There is confusion over where he lived (Nottinghamshire? Yorkshire?), when he lived (the twelfth century, in the age of Bad King John and Good King Richard? The fourteenth century?) and even whether he lived (the occasional record referring to a criminal called Robin Hode or Hood may be the origin of the story or the perpetuation of a legend).
But the medieval landscape would clearly be incomplete without him. Robin Hood somehow represents a fundamental image of English identity. Partly, of course, this is the bizarre English pantomime-identity of innocent transvestite jollity, but he also carries a message of political morality. A victim of injustice and of a corrupt, self-seeking sheriff, hiding out in the forest with his company of rogues, he is a symbol of natural justice, admired by the poor and hated by the fat cats of medieval England.
PRIDE IN ROBBERS
The strange fact is that the English always have been, and still are, proud of their outlaw robbers – not just fictional ones, but real robbers like the Folvilles. They regarded them as unique. Outlaws in other countries may have had codes of honour among themselves, but they were not regarded as stout bold fellows as they clearly were in England. There was felt to be the world of difference between an honourable robber and the mugger who makes a sneak attack. In much medieval writing about outlaws there is a presumption that their activities are honourable if robbery is performed boldly, face to face. In fact, it seems to be treated much like trial by ordeal: if God were not on the robber’s side he would be defeated by his victim.
This admiration for outlaws could be found in the Middle Ages even among those whose job it was to hang them. In 1470 Sir John Fortescue, who had been chief justice of the King’s Bench from 1442 to 1461, was educating the Lancastrian Prince Edward, son of Henry VI, who he expected would replace the Yorkist Edward IV as king. The prince, his mother Queen Margaret and Fortescue were in exile in Flanders at the time, and Fortescue wanted the prince to understand that the English were a more courageous people than the French. He knew this, he explained, because they made such bold outlaws:
. . . Frenchmen are seldom hanged for robbery, for they have no heart to do such a terrible act. There are therefore more men hanged for robbery and manslaughter in England in a year than are hanged in France in seven years for such crimes . . . If [an Englishman] is poor and sees another man having riches which may be taken from him by might, he will not spare to do so, unless that poor man should be very law-abiding.
Could it be true that the medieval outlaw was fundamental to the development of a unique English identity? If so, the story is very different from that of the Robin Hood of pantomime. We imagine the outlaw as essentially non-violent and honourable; this is what makes him deserve our sympathy and affection. But just take a closer look at the actual medieval Robin Hood.
ROBIN HOOD’S BRUTALITY
Robin and his men are depicted as being from the yeoman class, and as a band of ruthless killers. But this does not affect their status as the heroes of these medieval tales. Robin Hood’s virtue apparently lies less in his sense of social justice than in his devotion to the Virgin and his hostility to sheriffs and monks.
The oldest of the stories, ‘Robin Hood and the Monk’, is believed to date from around the time of the Folvilles. Right at the start, Robin is determined to take the risk of praying at a shrine. On the way there he gambles with, and tries to swindle, Little John, whom he then strikes. They fight and John abandons him. Robin is then spotted by a monk whom he has robbed. The monk raises a hue and cry and the sheriff of Nottingham and his men try to catch Robin:
But Robin took out a two-handed sword,
That hanged down by his knee;
There as the sheriff and his men stood thickest
Towards them went he.
Thrice he ran right through them,
In truth I to you say,
And wounded many a mother’s son,
And twelve he slew that day.
Robin Hood is eventually captured. Little John and another outlaw, Much, then come across the monk travelling with his page, and discover what has happened. Without a second thought, John kills the monk and:
Much did the same to the little page,
For fear that he would tell.
Little John and Much have killed a man who has acted lawfully throughout; and they have also murdered a child witness. This is not supposed to show them in a bad light. On the contrary, it shows the excellence of their loyalty to Robin. A gangster who casually kills a child witness is, to a modern reader, an irredeemable monster and a very long way from the pantomime version.
Outlawry was an important part of Anglo-Saxon law, but its meaning was changed by the Norman Conquest.
Our concept of the ‘outlaw’ is shaped by our very strong notions of personal liberty. We see feudal society with its strict definitions of status, where people were legally attached to the land and work was compulsory, as oppressive. The Robin-Hood-type outlaw appeals to us as someone who lives free of that oppression. But in the world of the eleventh century, ‘freedom’ was the very opposite of what we take it to mean today. Everyone was bonded into a place in society; every man and woman belonged, quite literally, to someone else. This was the basis of their existence. Outlaws were people who had abandoned this bond to live as, in effect, wild creatures.
At the time of the Norman Conquest, England was a very highly structured society. Everyone had to be bound to a lord and to their own family. A ‘lordless man’ was a suspect, if not dangerous, person; if he did not have a lord who would take responsibility for him, his family had to find him one; if they failed he could be dealt with as a rogue and vagabond. Law was understood to be traditional, the property of the population. Royal declarations of law were not intended as new legislation, but as restatements by kings of the laws of their predecessors, and the legal process was entirely at a local level. Courts were held in shires (counties) and hundreds (a division of a shire).
There was no distinction between civil and criminal law. All legal processes came down to one person making an accusation against another and demanding retribution. Criminal law, in which the state detects the offence, takes the accused to court and demands and imposes punishment, simply did not exist in early medieval society. Every householder had his own ‘peace’, and a breach of this (a theft or act of violence) was followed by an appeal to the local court, demanding cash payment in recompense.
The accused was required either to produce a set number of people, ‘oath-helpers’, who would swear his innocence on oath or to pay the cash price associated with the offence. The value of a man’s oath depended on his social status. This weighting also determined the number of oaths an accused man needed to clear himself in court and the size of the payment, if one was made in recompense for his offence. Every life had a cash value (the wergild, or ‘man price’). An aristocrat’s (thegn’s) life, and his oath, were worth six times that of a common man (1200 shillings as against 200).
Anglo-Saxon law codes read like modern insurance policies. For example, the list of compensation payments set out in the laws of Ethelbert, King of Kent from 560 to 616, include:
If an ear be struck off, twelve shillings.
If the other ear hear not, twenty-five shillings.
If an ear be pierced, three shillings.
If an ear be mutilated, six shillings.
If an eye be (struck) out, fifty shillings.
If the mouth or an eye be injured, twelve shillings.
If the nose be pierced, nine shillings.
If the nose be otherwise mutilated, for each six shillings.
Let him who breaks the chin-bone pay for it with twenty shillings.
For each of the four front teeth, six shillings; for the tooth which
stands next to them four shillings; for that which stands next to
that, three shillings; and then afterwards, for each a shilling.
And so the list went on, painstakingly costing fingers and toes, nails and skin, bruises and bones. This, naturally, gave everyone a great interest in the law. If the offender refused to pay up the victim was entitled to conduct a private war, with the support of his hundred (local district).
Oath-taking was a religious ritual – one mistake in the recitation of the formula, and the oath was discarded. If the accused could not find enough oath-takers, but maintained their innocence, they were tried by ordeal. If God brought them safely through the trial of hot iron or hot water, or immersion in cold water, they were judged innocent.
Outlaws were men and women who had decided to hide rather than face trial. (Actually, women could not be outlawed but became ‘waifs’, which was much the same.) Such a person was part of no community and so was regarded with deep fear. Outlaws had no oath value and therefore no price could be attached to their lives. They could be killed with impunity. It was an offence to feed, shelter or communicate with them.
It would take real desperation for a man or woman to choose to live outside society, to voluntarily forfeit all their goods, to become a ‘wolf’s head’ who could be legally slain by anyone. It would be an unlikely step unless they were without hope of finding oath-helpers and were terrified of the ordeal – in other words, were already virtually excluded from society.
But in 1066 this elaborate structure suffered a shattering blow when William the Conqueror and his Normans took over England.
In 1066 England became an occupied country, whose new masters knew nothing about the land they held or the people they ruled, and who did not even speak the language. And Normans kept turning up dead, murdered, in fields, woods and lanes. Although William decreed that the shire- and hundred-courts should carry on working, the legal system depended, obviously, on the victims of crime or their relatives naming the criminals. It depended, in fact, on a close-knit community. The Normans were not part of that community. They needed to force it to hand over any culprits.
William demanded an oath of fealty from every freeman, and that each man (unless he was part of the household of a lord) should be enrolled in a ‘tithing’, a group of ten people who were obliged to produce him in court if necessary. Proceedings were held at the court of the local lord. This system was administered by the sheriff (shire reeve), and if an accused failed to turn up when summoned the tithing was fined. The penalty for outlawry was now exacted on the community from which the outlaw had fled, reinforcing the sense of living under an alien occupation.
When a Norman was killed William imposed a fine on the district where the body had been found, unless the killer was promptly produced by the community. The system was changed from one of community law enforcement into one of collective punishment, similar to the regime imposed in France by the Nazis during their occupation in the early 1940s.
The Norman system was totally based on violence; it had come to England as a result of violence and it required all landholders to pay for their land by doing military service. Oath-taking survived, but the Normans found it unsatisfactory and insisted that in cases between themselves they were entitled to trial by battle. A victim of violence, appealing to the local lord for justice against the wrongdoer, could (if denouncer and denounced were both of noble blood) be required to fight the person they named.
This was supposedly a fighting man’s equivalent of trial by ordeal; God would, in theory, ensure that in a fair fight victory went to the righteous. In reality, of course, it was a recognition and direct enforcement of the fact that for the Normans might was right.
An Englishman accused by a Frenchman was not allowed to defend himself with oath-takers, but instead had to choose between battle and ordeal. And if the roles were reversed an English accuser faced a similar problem. So if you were an elderly freeman whose son had been murdered by a big, young, vigorous Norman you could go to a lord’s court, name the killer and find that he demanded the right to do battle with you. Oh, good.
The inevitable result was the deep reluctance of victims to accuse the perpetrators of crimes. In fact, in the twelfth century half of all appeals against murderers in local courts were brought by women, who could not be made to do battle. The law had become something to be avoided, to the extent that, at least in private appeals involving murder, almost one in five was ignored by the defendant. After being summoned four times and failing to appear he was declared to be an outlaw.
After the conquest William, the new owner of all land in England, also replaced the system of cash compensation with one of fines and confiscations to himself, along with corporal punishment.
People were reluctant to denounce aggressors to the sheriff not only because they might have to face a battle challenge, but because the accused might pass an ordeal and be declared innocent, in which case the plaintiff would be heavily fined for false accusation. Claims over land were also normally settled through trial by battle, and that, too, was an uninviting prospect.
The bulk of the population had much less interest in using the law. And outlawry – escaping the clutches of the law – changed its moral category. Instead of simply being fugitives from decent society, outlaws were now rebels, even guerrillas, hiding from a legal system that lacked moral authority.
According to Matthew Paris, writing nearly 200 years after the Norman Conquest and the traumatic events that followed it:
The English nobility and gentry were driven out from their possessions. Ashamed to beg, ignorant of how to dig, they and their sons and brothers took refuge in the woods. They robbed and they raided rapaciously, but only when they were lacking in game and other victuals.*1
In other words, noble outlawry had come into being. In the chaos of the early twelfth century, after the Conqueror’s death, many of the hundred-courts ceased functioning altogether.
By the time Henry II came to the throne in 1154 the system of law enforcement had collapsed and he needed to establish a new one. The originality, in fact the sheer brilliance, of what he did almost beggars belief. He invented new forms of law, new forms of court and new forms of legal process from the ground up, creating a legal culture in England that was totally distinct from any other.
Offences committed on highways or during feasts and fairs had been treated as injuries to the King himself, breaches of ‘the King’s Peace’. This was now extended to all acts of theft and violence; they were now ‘crimes’ and prosecution no longer depended on victims appealing to their local court for recompense. Crimes were dealt with by the royal court, and this meant that the royal court (or at any rate its judges) would from now on turn up on people’s doorsteps and hold trials.
Obviously, Henry had to force people to report criminals rather than relying on victims to do so. In the Assize of Clarendon (1166) he demanded that 12 men in each hundred, and four in each vill (village), swear before the king’s sheriff or a justice of the peace, upon oath, whether or not there was anyone charged as a criminal in their district. Anyone they named would be arrested and held in gaol (another novelty) until the king’s own travelling judges – the ‘justices of the general eyre’ – arrived.
This reporting panel was called a jury but it was not a jury as we know it, there to hear evidence of events of which they knew nothing. It was there because its members already knew what had happened, and they were described at the time as witnesses. In fact, for an independent witness to give evidence to them was itself a criminal offence, called ‘maintenance’. The jury was intimately connected with royal justice; it had no place in local customary courts. When the king’s judges arrived they might ask all manner of questions of the jurors, such as what local customs existed, who the landowners were, whether X had thrown Y off his land and so on and so forth.
When the jury nominated someone for trial there was no weighing of evidence for and against him. Nor was trial by battle an option in the royal courts. If there was plain evidence against the accused (such as possession of stolen goods) or ‘if he bear an ill name and have a notoriously bad reputation’ he would be held to be guilty, otherwise he would be tried by ordeal (‘the judgement of water’). A confession, once made, could not be retracted.
The ordeal of water involved being trussed up and thrown into it. If the accused floated, the water was rejecting him on account of his guilt. If he sank, he was hauled out legally innocent, but:
. . . 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:
The prisoner shall sit on the cold, bare floor, dressed only in the thinnest of shirts, and pressed with as great a weight of iron as his wretched body can bear. His food shall be a little rotten bread, and his drink cloudy and stinking water. The day on which he eats he shall not drink, and the day on which he has drunk he shall not taste bread. Only superhuman strength survives this punishment beyond the fifth or sixth day.*2
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.
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’.
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.
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.
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.
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.
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 went 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.
But what was to happen to these knights, esquires and hopefuls between wars? They had no land to go to. A life of bold robbery became, in practice, a necessity for men who had no living of their own, and who had failed to make much out of the last war but were hopeful of doing so from the next.
At least until the mid-fifteenth century (and the end of the Hundred Years War), outlaw robbers were, in fact, a national resource and kings depended on them. This explains some of the ideas behind the outlaw ballads, including the fact that Robin Hood stories often end ‘happily’ with him being released from outlawry by the king. This is not particularly fanciful. Many outlaws were pardoned, usually in return for fighting in the army or helping the king in some other way. These acts of amnesty were necessary to stop the number of outlaws increasing endlessly. And the men involved were important recruits to the army and administration. England needed its bold outlaws. It needed them so much that they could buy their pardons, and be recruited into respectability.
Not all of them remained respectable. In 1335, the outlaw gangster Nicholas Coterel was made the queen’s bailiff for the High Peak District of Derbyshire. Within two years he was accused of interfering with tax collection and ‘having been guilty of many other oppressions by the pretext of his office’, but that is hardly surprising. Similarly, when two outlawed associates of the Coterels, Sir William de Chetulton and Sir John de Legh, were pardoned and then commissioned, together with James Stafford, a well-known gang leader, to capture two other robbers it was only a matter of months before they were in a Nottingham gaol accused of attempted rape. Both of them subsequently served their king in his Scottish wars: in 1336 they were instructed to recruit archers in Cheshire and lead them north into Berwickshire.
It was the same story with the surviving Folville brothers. After 16 years of criminal activity they were all pardoned. One of them, Eustace, was even knighted for his ‘good services’ to the king. But in the course of only six years he received no less than three more pardons – two of them because he had fought against the king’s enemies – for crimes that included murder, rape and armed robbery.
England depended on its bold outlaws. And its admiration of these men would echo throughout its history, with the forest ultimately transferred to colonial frontiers where Billy the Kid, Ned Kelly and a hundred other lawless men would inherit this strange tradition.