many of our ancient ballads and lyrics, such as the cycle of robin hood and that exquisite love-poem "the nut-brown maid," are based on the custom of outlawry. one of the most charming of these early english productions is "the tale of gamelyn," in which we meet with the following passage alluding to the ban:
"tho were his bonde-men sory and nothing glad,
when gamelyn her lord wolues heed was cried and maad;
and sente out of his men, wher they might him fynde,
for to seke gamelyn vnder woode-lynde,
to telle him tydinges, how the wynd was went,
and al his good reued, and alle his men schent."
the expression "wolf's head" was an old saxon formula of outlawry, and appears to have originated from the circumstance that a price was set on the fugitive equivalent to that at which a wolf's head was estimated. one of the laws of edward the confessor deals with the case of a person who has fled justice, and pronounces: "si postea repertus fuerit et teneri possit, vivus regi reddatur, vel caput ipsius si se defenderit; lupinum enim caput geret a die utlagacionis sue, quod ab anglis wlvesheved nominatur. et hec sententia communis est de omnibus utlagis."
already we are in possession of the salient facts as regards outlawry. as a rule the outlaw was not banished, as citizens were ostracized at athens, to secure the state from dangerous rivalries. in other words, they were commonly not men of character and distinction, but just the reverse—persons whose conduct was so destitute of honour as to degrade them, in the eyes of the community, to the level of the worst sort of vermin. and they were treated accordingly. they were held to be unfit to exist as an integral part of the body politic, and either destroyed or, as an alternative, constrained to abjure the realm. the head and front of their offence was not any act of which they might have been guilty. the direct, and, it may be said, the sole, cause of their proscription was refusal to submit to the laws, to accept justice at the hands of their country-men.
this comes out quite distinctly in the legislative enactments of our remote ancestors. kemble in his "saxons in england" quotes the following law of king edgar:
"that a thief be pursued, if necessary. if there be present need, let it be told the hundred men, and let them afterwards make it known to the tithing men and let them all go forth whither god may direct them to their end; let them all do justice on the thief as it was formerly eadmund's law. and be the ceapgild (i.e., market value) paid to him that owns the chattel; and be the rest divided in two, half to the hundred, half to the lord except men; and let the lord take possession of the men.
"and if any neglect this and deny the judgment of the hundred, and the same be afterwards proved against him, let him pay to the hundred 30 pence; and the second time 60 pence; half to the hundred, half to the lord. if he do it a third time, let him pay ?lb; the 4th time let him lose all that he hath and be an outlaw, unless the king will allow him to remain in the land....
"we have also ordained that if the hundred pursue a track into another hundred, notice be given to the hundred elder, and that he go with them. if he fail to do so let him pay ￡30 to the king....
"if anyone flinch from justice and escape, let him that hath him in custody pay damages (angild). and if he be accused of having aided the escape, let him clear himself according to the law of the country."
angild is defined by maitland as the money compensation which the person who has been wronged is entitled to receive—i.e., damage as distinct from the fine (wite). here, it is evident, we are on the same ground as in the chapter treating of purgation by oath and the ordeal. when we recollect that the thief had to face the pain and uncertain issue of an ordeal, and that conviction might involve, in addition to the fine, banishment, slavery, or the loss of a foot, we see at once the temptation to abscond, but the disappearance of the accused was not only prejudicial to the accuser, but compromised the person who was responsible for his production. the escaped thief, therefore, was a nuisance, as well as a danger, and, if he remained contumacious, forfeiture of life and property was deemed not too heavy a penalty. if, instead of being a thief, the felon chanced to be a murderer, the inconvenience to the community, in whose midst the crime had been perpetrated, was still greater. one of the laws of edward the confessor ordained that if a man were found slain and the slayer could not be found, a fine of 46 marks (￡30 13s. 4d.) was to be paid into the treasury by the township and hundred. the pipe rolls contain many instances of payments for murders of which the doers were not taken red-handed, the fines varying in amount. in 14 henry ii. the sheriff of devon accounted for 100s. for one murder in wonford hundred, 10 marks for several murders in axminster hundred, and 20s. for a murder in north tawton hundred. another sum of 20s. was remitted by the village or township of braunton for peace in respect of a murder committed there.[10]
the position of affairs is thus clear. the murderer was regarded as a member of a corporation, which had to answer for him, and, failing to do so, was liable to a forfeit. the manslayer, therefore, if he did not make his surrender, added to his original offence against an individual or family those of disloyalty and injury to a community; and, accordingly, he became the mark of private or public vengeance, the laws which he had violated and contemned ceasing to afford him protection.
in these circumstances, what was he to do? to judge from the testimony of the ballads and poems before mentioned, his best and usual course was to wend his way to the greenwood and join himself to a band of jovial companions who found themselves in a similar plight to his own. that this course was sometimes adopted is a fair inference from the very existence of these compositions, and is rendered probable by the vast extent of the forests and the sparseness of the population, which these desperadoes might conciliate with a share of the ransom extorted from rich wayfarers. but a homicide who flew to this remedy was not very safe. as an enemy of the established order, he had to perform prodigies of valour, and, once captured, his fate was sealed. outlaws of this description can hardly have been common, even in the days of hereward the wake. the majority of those who came under this denomination were not heroes, and acted quite differently. they threw themselves on the protection of the church.
"holy mother church, as a kind mother, gathers all into her bosom; and thus each and all, good and bad, who take refuge with her, are protected unhurt under her mantle."
such was the language of the synod of exeter in 1287; and the statutes go on to quote from the provisions of the legatine council held under cardinal othobon at st. paul's, london, twenty-one years before, which were the basis of the constitutions adopted in the various dioceses: "if anyone shall drag out from the church or cemetery or cloister the person that has taken refuge there, or prevent his being supplied with necessary food; or shall in a hostile or violent manner carry off property deposited in the aforesaid places, or cause or approve of such carrying off by their followers, or lend their assistance, openly or secretly, to such things being done by those presuming on their aid, counsel, or consent—we bind them ipso facto by the bond of excommunication, from which they shall not be absolved until they have made full compensation to the church for the wrong suffered."
hence it is clear that the malefactor had a ready way of evading or postponing the consequences of his crime and refusal to "put himself on his country," for every church was a sanctuary in the sense of affording security to terrified wretches, innocent or guilty. it may be well to recall that outlawry did not date from the commission of the crime or the flight of the criminal; and up to the time of conviction, judgment going by default, the law gave no countenance to his assassination. the rule affirmed by the statute of king edgar, whereby sentence of outlawry was pronounced only after opportunities had been granted for repentance, continued to be in force all through the middle ages. this appears from a note on the proceedings of the salop iter of 1293, which states:
"although one who is appealed of the death of a man, or for other felony, make default at three county courts, yet at the fourth county court he may appear, and give mainprize to appear at the fifth county court; and then, if he do not come, he will be outlawed. and if the appellor abandon the prosecution, the exigend shall tarry until the eyre; and then he shall be tried (for he may return to the peace if he will) at the suit of the king. and if he will not come, he shall be called at the three county courts; and if he do not come at the third, he shall be outlawed at the fourth county court, if he do not come and give mainprize to come at the fifth county court."
it may be taken for granted that, in the vast majority of instances, this degree of consideration sufficed in the case of any person honestly desiring to take his trial; but circumstances might exist which rendered it impossible for a man to prevent his being outlawed, and then the right of sanctuary might be of the utmost value in staying injustice. that the supposition is not purely imaginary is proved by a remarkable petition of the early part of the reign of edward i., in which john brown, scholar of oxford, states that during his absence at rome he has been falsely appealed by a jewess for a christian child, pursued from county to county, and outlawed; wherefore on his return he was put in prison and he now prays the king's mercy, without which he cannot go to the common law. john brown, it is clear, did not take sanctuary—probably because he was not apprised of the facts in time; otherwise it would have afforded him all needful security and allowed him a period for reflection as to the wisdom of surrendering or quitting the realm.
the right of sanctuary must have been founded on the principle that the guilt of the fugitive had not been established. even the ordinary law was laudably sensitive on this point, and care was taken not to prejudice the accused by an apparent assumption of guilt. if a person was charged with murder, the bailiffs were obliged to approach him with white wands as a sign that they had no intention of committing or provoking a breach of the peace. they then summoned him to yield himself to the peace of "our lord the king." if they came in the first instance armed in a warlike manner with swords, etc., it was lawful for him to defend himself, and there is one instance on record in which a man did this, fighting a pitched battle with the bailiffs in the garden of his inn, and being afterwards upheld by the court. if, however, the person would not surrender, when summoned in a peaceable way, force might be employed against him. but the officers had first to find or overtake him; and in this they might be anticipated by those who had suffered injury. obviously, therefore, the homicide, who had no confidence in the justice of his case, would be well advised in flying without delay to "the bosom of mother church."
the refugee was as often as not an habitual criminal, who might have broken out of prison on the eve of execution. some light on this point is derived from the northumberland assize rolls of the years 1256 and 1279. for instance: "robertus de cregling et jacobus le escoe', duo extranei, capti fuerunt pro suspicione latrocinii per ballivos willelmi de valencia et imprisonati in prisona ejusdem willelmi apud rowebyr' (rothbury). et predictus robertus postea evasit de prisona ad ecclesiam de rowebyr' et cognovit ibi latrocinium et abjuravit regnum coram willelmo de baumburg tunc coronatore."
offenders were obliged to state the nature of the crimes alleged against them, and the durham register shows that by far the largest number were murderers and homicides. some claimed the rights of sanctuary for debt, some for stealing horses or cattle and burglary; and others for such crimes as rape, theft, harbouring a thief, escaping from prison, failing to prosecute, and being backward in their accounts. townships which failed to arrest the criminal before he reached the church, or allowed him to escape after he had taken refuge in it, were fined by the king's justices, the circumstances proving that the institution was tolerated as a necessary evil by those responsible for the maintenance of law and order—not regarded with favour.
the thucydidean speech of the duke of buckingham on the removal of the queen of edward iv., with her younger son, the duke of york, to the sanctuary of westminster in 1483, furnishes a searching criticism of the use and abuse of this privilege in the practice of the fifteenth century. addressing the privy council, he is represented to have said:
"and yet will i break no sanctuary; therefore, verily, since the privileges of that place and other like have been of long continued, i am not he that will go about to break them; and in good faith, if they were now to begin, i would not be he that should go about to make them. yet will i not say nay, but that it is a deed of pity that such men as the sea or their evil debtors have brought in poverty should have some place of liberty to keep their bodies out of the danger of their cruel creditors; and also if the crown happen (as it hath done) to come in question, while either part taketh other for traitors, i like well there be some place of refuge for both. but as for thieves, of which these places be full, and which never fall from the craft after they once fall thereunto, it is a pity that sanctuary should screen them, and much more man-quellors, whom god bade to take from the altar and kill them, if their murder were wilful; and where it is otherwise there need we not the sanctuaries that god appointed in the old law. for if either necessity, his own defence or misfortune draweth him to that deed, a pardon serveth, which either the law granteth of course, or the king of pity. then look we now how few sanctuary men there be whom any favourable necessity compel to go thither; and then see, on the other side, what a sort there be commonly therein of them whom wilful unthriftiness have brought to nought. what rabble of thieves, murderers, and malicious heinous traitors, and that in two places especially; the one the elbow of the city [that of westminster] and the other [st. martin's-le-grand] in the very bowels. i dare well avow it, weigh the good they do with the hurt that cometh of them, and ye shall find it much better to lack both than to have both; and this i say, although they were not abused as they now be, and so long have been that i fear me ever they will be, while men be afraid to set their hands to amend them; as though god and st. peter were the patrons of ungracious living. now unthrifts riot and run in debt upon the boldness of these places; yea, and rich men run thither with poor men's goods. there they build, there they spend, and bid their creditors go whistle. men's wives run thither with their husband's plate, and say they dare not abide with their husbands for beating. thieves bring thither their stolen goods, and live thereon riotously; there they devise new robberies, and nightly they steal out they rob and rive, kill and come in again, as though those places give them not only a safeguard for the harm they have done, but a licence also to do more."
there is one aspect of the privilege, not mentioned in this balanced judgment, which deserves consideration and that is the inadequacy of the law to assure victims of injustice against oppression. as an instance of the sort which, it may be hoped, was not too common, we may take the following (undated) petition:
"margery, who was the wife of thomas tany, late chivaler of the college of windsor, & is executrix of his last will and testament, pleads that whereas on the thursday ... in the feast of corpus christi in the late insurrection proclamation was made that all who had any right or title to recover any debts or bequests whatsoever should come before the king at the tower of london and shew their evidence, &c., without delay, she, the s'd margery, and her eldest son john thorpe, came with a bill to present to the king for recovery of debts due to her by force of the will & test of her s'd baron & of the judgments given & rendered by three chancellors of the king; and they had not leisure to present the bill then, but on the morrow, saturday, delivered the s'd bill to the king in his wardrobe in london. but forasmuch as the father in god, the archb'p of canterbury, then chancellor of england and judge in this, ... had sequestrated all the goods and chattels of sir william mugge, then dean of the said college, escheated into the hands of walter almaly, present dean of the s'd college, commanding by letters patent the s'd walter, under certain penalties, that no livery should be made until satisfaction had been done to the s'd margery for the debts due from the said wm. to the said m. by the said test, and that john de thorp, younger son of the s'd margt., had received a mandate from the s'd chancellor to summon the s'd walter and sir richard metford to appear & answer before the chancellor, the s'd sir walter caused the s'd john thorp, eldest son of the s'd margery, to be arrested and kept him in prison for three days, wrongfully and in contempt of the king ... and besides this the s'd sir walter caused the s'd john de thorp, younger son of the s'd, m., to be arrested in suthwerk by john chirche, serjeant of london; and while he was under arrest the s'd walter, of malice prepense, assaulted him, beating him on the head and other parts of the body, which beating & punishment of the body caused his death in the prison of newgate; where, though he offered repeatedly to find as sureties good and sufficient men of the city of london to offer themselves before the mayor & sheriffs of london, to wit, the then mayor, william walleworth, to be responsible for him, body for body, yet was he not delivered out of prison until he was dead, and moreover the s'd walter threatened to destroy the s'd margery as he had destroyed her son, so that she took sanctuary and dared not issue forth for fear of death," etc.
it has been stated that all churches, parochial, collegiate, and cathedral, were sanctuaries; but there were in different parts of england about thirty supreme sanctuaries, of which westminster, york, durham, glastonbury, ely, ripon, and beverley may be taken as types. they owed this pre-eminence to the possession of relics and stories of miracles wrought by the tutelar saint for the protection of suppliants or the chastisement of those who violated the shrine. the origin of the civil sanction is most obscure. individual churches attributed their franchise to the favour of ancient kings—hexham to ecfrith, king of northumbria; ripon and beverley to athelstan, and york to edward the confessor. tradition affirms that in primitive times the term of protection at durham was thirty-seven days and at beverley thirty days on the first and second occasions, and if the fugitive resorted thither a third time, he had to become serviens ecclesi? imperpetuum. these intimations, if true, point to a process of evolution from small beginnings represented by the three nights' protection to which the sanctuary rights of an ordinary church were limited by the laws of alfred (887) to the extraordinary privileges which, if we accept mr. r. h. forster's conclusions, existed at durham.
these concerned both the area and the duration of the immunity. at other places the right of sanctuary comprised the precinct as well as the church itself. for instance, at beverley, the story goes that athelstan, on his return from a victorious campaign against king constantine, conferred the privilege on the church of st. john and a portion of the surrounding country. the bounds were indicated by crosses. the base and part of the shaft of one of them is, or was lately, to be seen in a hedge on the road to skidby. others were erected at molescroft, on the road towards cherry or north burton, and near killingwoldgrove, on the bishop's burton road. at durham, however, if we follow mr. forster—and he makes out an excellent case—the precinct included the whole of the county palatine, and the term of protection, instead of being confined to the ordinary period of forty days, was perpetual. at york, beverley, and hexham there was what may be termed an outermost precinct and various inner precincts, the relative sanctity of which is shown by the scale of punishments inflicted for violation. in prior richard's history of hexham it is stated that there were at that place four crosses, each of them erected at a distance of one mile from the church, and in a different direction. anyone who arrested a fugitive within these limits was fined two hundreth, or sixteen pounds. for an arrest "infra villam" the penalty was twofold. if the person were seized "infra muros atrii ecclesi?," it was threefold; and if within the church itself, sixfold, to which was added penance "sicut de sacrilegiis." supposing, however, that anyone, "vesano spiritu agitatus diabolico ausu quemquam capere pr?sumpserit in cathedra lapidea juxta altare quam angli vocant fridstol, id est, cathedram quietudinis vel pacis, vel etiam ad feretrum sanctarum reliquiarum quod est post atlare"—then the crime was botolos (without remedy); no monetary payment could be received as compensation. when leland was at beverley, he was shown a frithstool, on which he made the following note: "h?c sedes lapidea freedstool dicitur, i.e., pacis cathedra, ad quam reus perveniens omnimodam habet securitatem." there was a frithstool endowed with similar privileges at york minster, and another at durham. stone seats claimed to be frithstools are still shown at hexham and beverley.
of all the localities which drew to themselves especial distinction as sanctuaries none rivals in antiquarian interest the monastery of durham. this is because of the existence of an ancient work on the "rites of durham," which enters in considerable detail into the ceremonial observed on such occasions, and was received for a long time as authoritative. recent criticism by mr. r. h. forster has rather impaired the credibility of the document. he points out that its professed date is 1593, or more than fifty years after the dissolution of the priory; and maintains that it is not a first-hand chronicle of events of "the floryshinge tyme" before the suppression of the house, but a compilation based partly on old records and partly on the reminiscences of aged residents.
nevertheless, the narrative must be considered to possess a high degree of historical value, and is undeniably picturesque. we catch a glimpse of the fugitive "knocking and rapping" at the grim twelfth-century knocker "to have yt opened." we see him "letten in" by "certen men that did lie alwaies in two chambers over the said north church door," and running straightway to the galilee bell and tolling it. ("in the weste end in the north allie and over the galleley dour there, in a belfray called the galleley steple, did hing iiii goodly great bells.") the work goes on to state that "when the prior had intelligence thereof, then he dyd send word and command them that they should keape themselves within the sanctuary, that is to saie, within the church and churchyard." this was until the official of the convent and witnesses had assembled for the formal admission and registration of the fugitive, which took place in the nave, in the sacrist's exchequer, which was in the north aisle of the choir or "in domo registrali." the official who presided over the ceremony was commonly the sacrist, but the duty was sometimes performed by the chancellor of the cathedral, the sub-prior, or a monk qualified as a notary public. as for the witnesses, they might be monks, servants of the convent, clerks, masons employed on the fabric, or they might be friends of the fugitive who had attended him to durham as a bodyguard. frequently, however, they were casual onlookers or persons who had flocked out of curiosity to the "show."
on admission, the "grithman" received a gown of black cloth "maid with a cross of yeallowe cloth called st. cuthbert's cross, sett on the lefte shoulder of the arme" and was permitted to lie "within the church or saunctuary in a grate ... standing and adjoining unto the galilei dore on the south side," and "had meite, cost and charge for 37 days." the writer of the book alleges that maintenance was found for fugitives "unto such tyme as the prior and convent could gett them conveyed out of the dioces," but mr. forster traverses this statement and adduces documentary evidence to show that, in various instances, "grithmen" were permanently domiciled in the diocese. we have, however, an account of one such "conveyance." a certain coleon de wolsyngham, in the year 1487, on retiring from the church, was delivered by the sheriff to the nearest constables, and after that by constables to constables, that he might be conducted to the nearest seaport, there to take shipping and never return. he is stated to have received a white cross made of wood.
bracton and britton both state that the criminal could elect his own port, but we generally hear of a port being assigned him by the coroner, and he was required to proceed thither without deviating. a case is on record where "one a. had abjured the king's realm and went a little out of the highway; the menee was raised upon him, and he was taken in the highway, and this was found by the jury." nobody was suffered to molest the felon on his journey seawards on pain of forfeiting goods and chattels. this part of our subject receives excellent illustration from the customary of the cinque ports:
"and when any shall flee into the church or churchyard for felony, claiming thereof the privilege for any action of his life, the head officer of the same liberty, where the said church or churchyard is, with his fellow jurats or coroners of the said liberty, shall come to him and shall ask him the cause of his being there, and if he will not confess felony, he shall be had out of the said sanctuary; and if he will confess felony immediately it shall be entered in record, and his goods and chattels shall be forfeited, and he shall tarry there forty days—or before, if he will, he shall make his abjuration in form following before the head officer, who shall assign to him the port of his passage, and after his abjuration there shall be delivered unto him by the head officer, or his assignees, a cross, and proclamation shall be made that while he be going by the highway towards the port to him assigned, he shall go in the king's peace, and that no man shall grieve him in so doing on pain to forfeit his goods and chattels; and the said felon shall lay his right hand on the book and swear thus:
"'you hear, mr. coroner, that i, a. b., a thief, have stolen such a thing, or have killed such a woman, or man, or a child, and am the king's felon; and for that i have done many evil deeds and felonies in this same his land, i do abjure and forswear the lands of the kings of england, and that i shall haste myself to the port of dover, which you have given or assigned me; and that i shall not go out of the highway; and if i do, i will that i shall be taken as a thief and the king's felon; and that at the same place i shall tarry but one ebb and flood if i may have passage; and if i cannot have passage in the same place, i shall go every day into the sea to my knees, and above, crying, "passage for the love of god and king n. his sake;" and if i may not within forty days together, i shall get me again into the church as the king's felon. so god me help, and by this book, according to your judgment.'
"and if a clerk, flying to the church for felony, affirming himself to be a clerk, he shall not abjure the realm, but yielding himself to the laws of the realm, shall enjoy the liberties of the church, and shall be delivered to the ordinary, to be safe kept in the convict prison, according to the laudable custom of the realm of england."
when it became known that a malefactor had taken refuge in a church it was the duty of the authorities to beset the place, and send for the coroner, who parleyed with the person in the manner described in the above recital. from the same account it will be gleaned that the maximum limit allotted to the refugee was ordinarily forty days, after which he would cease to receive sustenance. according to britton he had forty days after being summoned by the coroner. it will be further observed that the criminal undertook to "hasten" to the port of departure. it is generally stated that forty days were granted him for this purpose, but it is certain that this was not always the case. by the assize of clarendon persons of evil repute, who had purged themselves by the ordeal without satisfying their neighbours as to their innocence, were required to quit the realm within eight days:
"the lord king wishes also that those who shall be tried and shall be absolved by the law, if they be of very bad testimony and are publicly and disgracefully defamed by the testimony of many and public men, shall forswear the lands of the king, so that within eight days they shall cross the sea, unless the wind detains them; and with the first wind which they shall have afterwards they shall cross the sea; and they shall not return any more to england unless by the mercy of the lord king; and there, and if they return, shall be outlawed; and, if they return, they shall be taken as outlaws."
the same fate was in store for any felon who deviated from the highway in proceeding to his assigned port. he might not, however, be reserved for judicial execution, being at the mercy of his captors, who could do as they pleased with him. "some robbers indeed, as well as some thieves, are lawless—outlaws as we usually call them—some not; they become outlaws, or lawless, moreover, when, being lawfully summoned, they do not appear, and are awaited and even sought for during the lawful and fixed terms, and do not present themselves before the law. of these therefore the chattels and also the lives are known to be in the hands of those who seize them, nor can they for any reason pertain to the king."[11] ("dialogus de scaccario," x.).
an outlaw, as such, was incapable of exercising the most ordinary rights—he could not devise, inherit, own, or sell lands or houses. civilly, he was dead. the only question is whether these disqualifications attached to him as the effects of felony or the resultant outlawry. the point was tested in a case which came before the common bench in 1293, and decided by an eminent justice of the period in relation to a certain geoffrey, who had committed felony, and before this became known had disposed of tenements to one john de bray. "inasmuch," said metingham, "as all those who are of his blood are debarred from demanding through him who committed the felony, in like manner every assign ought to be barred from defending the right to tenements which have come from the hands of felons; and it is found by the inquest that geoffrey was seised after the felony was committed. and inasmuch as felony is such a poisonous thing that it spreads poison on every side, the court adjudges that william [the lord, who had brought a writ of escheat] do recover his seisin, and that john be in mercy for the tortious detinue."
sanctuary for treason was abolished in 1534, and for crime in 21 jac. i., but debtors enjoyed the time-honoured immunity, at whitefriars and elsewhere, till 1697.
