by Alan Ereira
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.
ANGLO-SAXON OUTLAWS
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.
CONQUEST
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.
THE JURY
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.
JUDGEMENT
By the mid-thirteenth century the travelling judges of the general eyre were so overwhelmed with work that they only visited each county every seven years. If an accused person could not find guarantors for his court appearance (the equivalent of bail), he could be held in gaol for a very long time which could prove to be a death sentence in itself.
The problem was eased by establishing a more regular circuit of judges: the assize court, which tried cases twice a year. The function of the royal court had changed. It was no longer an extraordinary tribunal, a court for great men, for great causes, for matters that concerned the king; it had become an ordinary tribunal for the whole realm.