EXILE IS AN OLD IMPOSITION on human freedom, older than the text of the Bible, but born, according to that scripture, almost at the moment of creation itself. For the first sin was punished by expulsion from the Garden with no explicit promise of being able to return (Genesis 3:22–24). The second sin, Cain’s, was exile of a different sort, but exile nonetheless, and one in which the expellee bore a mark signifying his act of murder and the Lord’s monopoly on vengeance (Genesis 4:12–15).1 Exile was no new thing in the High Middle Ages. Everywhere the hideous representation of Cain, the first murderer, was to be met with in Christian art.2 But the relationship of the medieval English law of exile to the laws addressing felons and felonies—heinous crimes which in theory deserved severe corporal or capital punishment—is a complicated and, by modern reckoning, an unusual one. This is especially the case because two groups of people suspected of or implicated in felonies in the High Middle Ages regularly avoided the punishments which would have been meted out to them if they had been convicted in a court of law. The evidence will be persuasive, I hope, that scholars have significantly underappreciated exile as a feature of English justice in the Middle Ages. By failing to treat it with the seriousness it deserves, historians, in particular, have misunderstood important aspects of the legal, moral, and social history of the period.
FELONY AND EXILE
Who constituted the two groups of people referred to above? One was composed of men and women who, though not convicted of the crimes of which they were suspected, were in such bad repute that they were obliged to abjure (foreswear) the realm. The other comprised felons who confessed their crimes in sanctuary (on which, more shortly) or in other special circumstances, who also were obliged to abjure.3 Unlike those few convicted criminals who had their punishments mitigated to penitential pilgrimage, within or outside the realm, to forced crusading, or to entrance into a monastery, an abjurer of the realm of England was debarred from living in, or visiting, the kingdom ever again, without the crown’s prior permission.4 The Latin phrase used in this process was abjurare (or less often ejurare or extrajurare) regnum.5 These exiles were Christians, although English royal officials on rare occasions before 1290 expelled individual Jews and sometimes employed the language of abjuration in doing so.6 Most of them were also of lower status than the political exiles described in the introduction, and most were poor long before they departed England, unlike political exiles whose property had been confiscated or the Italian bankers, who were suspected of frauds and whose enormous wealth was forfeited at the time of their expulsion.7
The abjurers need to be distinguished from simple outlaws (men) and waifs (women), who were, by and large, low-status fugitives from the law and on whom, if apprehended, anyone could in theory execute capital justice, just as anyone could kill a predatory wolf.8 Outlaws bore the wolf’s head, a striking and enduring metaphor.9 Considerable in number, outlaws and waifs had escaped adjudication and/or punishment by fleeing and sought shelter and safety wherever they could, most often in woodlands. “Desouz le hourail se kevere laroun,” one poet wrote: “A thief hides in the forest edge.”10 Indeed, a few notorious exceptions aside,11 most fugitives were too ill-connected to arrange clandestine travel to distant destinations or abroad unless they lived in the borderlands with Scotland and their destination of choice was the northern kingdom.12 As to the small minority of outlaws and waifs who did flee abroad, their experiences and the dangers they faced do sometimes help elucidate the abjurers’ situation.13
Nevertheless, it must be kept in mind that every exile, unlike an outlaw or waif, had undergone and completed a form of legal process. This was not—at least in England—conviction at trial. Abjuration was only exceptionally and very rarely made available to judicially convicted individuals.14 Elsewhere, that is to say, on the continent, exile was employed in the English way as perpetual banishment without conviction at trial in addition to being imposed as a punishment mandated upon conviction for a crime. Like the punishment of mutilation, which varied according to the character or seriousness of the crime, exile in this latter sense was keyed to a term of years appropriate to the nature of the crime and the status of the felon as a principal or accessory.15 In England and mutatis mutandis on the continent, abjuration into perpetual exile without conviction in a trial typically arose out of two situations: (1) the crown’s formal accusation of felony but its failure to convict on the charge, or (2) the registering of a confession of felony with a competent administrative authority without any semblance of a trial. In both situations, to repeat, a solemn promise was exacted from the abjurer never to return to the jurisdiction from which he or she was exiled.
If, following the first scenario, the crown made formal accusations of felony and it failed to convict, by what warrant did it exile exonerated suspects? It was a peculiar set of administrative policies which disadvantaged such people, specifically, those who were acquitted at the unilateral judicial ordeals. Up through the year 1215, the fundamental mode of testing an indicted person’s innocence of a felony, in the absence of any full proof, such as a confession in open court or the testimony of two eyewitnesses or flight, which was regarded as a sure token of culpability,16 was the ordeal. It came into play when there was strong presumptive evidence for believing a person to be guilty. Medieval law, in theory and in practice, resisted judgments which condemned a person to death or dismemberment unless there was a full proof of guilt. Circumstantial evidence has often sufficed for conviction for felonies in modern jurisdictions. Evan Mandery, writing of United States federal jurisdiction, notes that “federal practice treats circumstantial evidence identically to direct evidence and permits conviction based solely on such evidence.”17 But circumstantial evidence alone was not generally sufficient for conviction—in theory or in practice—in High Medieval English or continental courts.
Ordeal, the judgment of God, was a full proof, equivalent in probative value to other full proofs.18 And it was the fallback setting when other full proofs were lacking. In other words, if bad reputation (mala fama, as continental and English jurists would say19), had led to one’s formal indictment for felony, but no full proofs could be produced, the trial court opted to employ ordeal. In the English system the Assizes or ordinances of Clarendon of 1166 and of Northampton of 1176 judicialized the process of identifying—which is to say, indicting in the king’s name—people suspected of inflicting serious harms on others, employing here the regular presentments of grand juries.20 These included homicides, thereby providing an alternative to the traditional and, it must be acknowledged, as Paul Hyams’ work has shown, tenacious vengeance by feud.21 The new system also, as intimated, turned the suspects’ acts into crimes against the king, in whose name the grand juries indicted suspects, and implicitly into crimes against the community of the realm. Trial by ordeal followed for those who were successfully brought to court. It was thriving in the early thirteenth century in the wake of the increased use of the grand juries.
The most famous types of ordeal were those of hot iron, hot water, and cold water. In preparation the prisoner went through required ablutions, prayers, and blessings. Later a priest blessed the ordeal fire in which a bar of iron of a certain weight was heated white-hot or upon which a cauldron of water containing a stone of a specified weight was brought to a boil. For the ordeal of cold water the water and pit which were to receive the accused were given the appropriate blessing. In the ordeal of hot iron the defendant was restrained and the metal placed in his or her hands for a specified length of time, whereupon it was removed, the hands bandaged, and a three-day wait imposed. At the expiration of the waiting period, the court ordered the removal of the bandages and the examination of the hands in the judges’ and suitors’ presence. Then the court rendered God’s (revealed) judgment. Hands beginning to heal evidenced innocence, while those unclean (bleeding profusely, suppurating, stinking) evidenced guilt, in which case the accused faced sentence of mutilation or execution. The ordeal of hot water followed a similar procedure after the accused retrieved the stone from the cauldron. In the ordeal of cold water, the accused was immersed in the pool. Sinking implied innocence. The holy water received the accused. Floating implied guilt. Presumably, the fear incumbent on a guilty conscience dreading the judgment of God was being revealed in a desperate desire not to drown. In any case, the victim, whether showing signs of calm confidence entering the water or evidencing terror and trying to thrash, was removed from the pit before any serious physical harm could be done. The guilty were liable to mutilation or execution.
Harsh as this process may appear, the whole system was mitigated by the fact that almost 70 percent of prisoners who went to the ordeal were acquitted, a result which has stimulated an extraordinary amount of research and reams of brilliant analysis.22 Scholars have wondered at the initial origin of the ordeal as a mode of proof and its supposed appropriateness to “primitive” societies. They have puzzled productively over the apparent continued attraction of the ordeal, even when certain sophisticated scholastic thinkers, university men, in the late twelfth century initiated a scathing critique of it.23
Perhaps the most curious feature of the place of the ordeal in the justice system seen from a modern vantage point pertains to the immediate consequence of so many defendants’ acquittals. It has been argued that the high rate of acquittal by ordeal testifies in part to the strong medieval inclination against imposing dismemberment and, in particular, capital punishment, as often as the law of felony would have required in convictions. Perhaps so. Nevertheless, though success at the ordeal established the accused’s innocence, it did so without wiping the slate clean. For those who oversaw the administration of justice, God had not commanded or implied that succeeding at the ordeal should make the judges ignore the circumstances which brought the accused to court in the first place. The accused was compromised by having a reputation so low that he or she was obliged to undergo the ordeal. Since the bad reputation remained, it itself could be censured.24 Nor was this mere theorizing: as a matter of usual practice those indicted by grand juries and who succeeded at the ordeal were constrained to abjure the realm thereafter.25 Although in this way abjuration was what we would call punishing the innocent, it served the additional purpose of removing despised persons from the communities where their enemies might take vengeance on them and thereby initiate or perpetuate the feuds that so disturbed medieval life.
To some of the abjurers, this byproduct of abjuration was insufficient to justify it. Indeed, the perplexity felt by some of those exonerated is sometimes palpable. Wille Brun, for example, who succeeded at the ordeal of water in 1212, was dumbfounded when told he had to abjure. He took the oath (ejuravit) but protested that he was willing to find a mark—two-thirds of a pound, a huge amount of money at the time—and pledges, men who assured the court that he would pay, for his innocence. No one, he was willing to bet, would accuse him to his face of the murder of which the judgment of God had acquitted him.26 But of course this was not the point. The end of the process punished his reputation, not his alleged crime. His argument thus availed him nothing.
I have already referred to the fact that there had long been elite academic criticism of the use of ordeals and belief in their efficacy. Although there were powerful counterarguments in favor of their reliability as well, the Fourth Lateran Council of 1215, under the presidency of Pope Innocent III (1198–1216), accepted the superior merits of the academic critique. The fathers of the Council prohibited priests from intoning the formulas necessary to sanctify the ordeal, without which believers could have no confidence that they were witnessing or experiencing God’s own judgment. Princes throughout the Catholic world were less than enthusiastic about the Council’s pronouncement. With a few strokes of the quill, the fathers, if they had been successful—an important if—would have undermined one of the principal modes of proof in secular law. Most rulers refused to let priests abandon the responsibility of blessing ordeal fires, judgment pits (for the ordeal of cold water), and the like for decades, and it is not clear that priests themselves wanted to abandon it. Those who did wish to were browbeaten—this is the historian Scott Taylor’s word—into performing the rituals.27 Two rulers, however, obeyed with relative expedition: the king of England, Henry III (1216–72), a child under the tutelage of a regency council, which included a papal legate who got his way on the matter, and the king of Denmark, Valdemar II (1202–41), who had on several occasions received papal support in his political struggles and may have been returning the favor.
The English government’s willingness to receive the Lateran decree and suspend trials by ordeal led to the filling up of jails with indicted prisoners who could not be tried. This, in turn, led judges and administrators to offer them trial by jury as an alternative. Juries had been used before to gather information, to adjudicate many civil cases, to make the accusations in the form of grand jury presentments (a regular practice since 1166, which led to ordeal for felony), and by private agreement to avoid trial by battle when that was the otherwise appropriate mode of proof.28 In these other instances juries proffered their verdicts—statements which they alleged were “truly rendered,” vere dicta, but mostly based on majority votes. The innovation imposed when the jury came to substitute for the ordeal was the rule of unanimity, either in favor of or against innocence. Underlying the innovation and, I would argue, salving the innovators’ consciences, was the idea that unanimity guaranteed the active presence of the Holy Spirit in jury deliberations, thus making the verdict an authentic judgment of God as the ordeal had been widely regarded before this time. In papal elections, unanimity was said to be quasi per inspirationem divinam (like divine inspiration), but whether Englishmen directly borrowed the idea has, I think, been impossible to establish so far.29 Unanimity would have been a powerful if not necessarily compelling selling point for judges, jurors, victims’ families and friends, and defendants who were being asked to abandon the ordeal, a familiar and accepted mode of proof.
The unanimous verdict of a jury of twelve good men and true, operative even before it came to be formally fixed in law in the fourteenth century,30 was therefore understood by those who supported it as a full proof of innocence or guilt, just like ordeal. That it did not possess ordeal’s respectable patina of ancestral sanctification, however, that it took a while to decide to sever the large indictment jury from the twelve-man petit jury (in the earliest usages the same jury indicted and tried), and that the rule of unanimity became absolute only after some time, were altogether troubling. These factors may account for the fact that trial by jury upon indictment for felony often led to acquittal; conviction rates in some samples are as low as 20 to 25 percent.31 The average conviction rate in the United States, according to the Bureau of Justice Statistics, is at present 68 percent. In eighteenth-century England it only approached 40 percent, but that was still substantially higher than in the Middle Ages.32 Comparing justice statistics across time and legal systems is notoriously difficult,33 but the general point seems well established: namely, that like the ordeal, the mode of proof which replaced it in England exhibited in practice a reluctance to render guilty verdicts and thus to authorize the capital and horrendous corporal punishments which would follow. This reluctance has been shown to have persisted at least down to the late fourteenth century.34
In England initial misgivings and disquiet over the reliability of jury trial as a mode of proof also help to explain why the process began as an optional one and, by tradition and practice, remained so for centuries to come. An indicted suspect had to consent to the process. The alternative was to remain in prison—unconvicted and therefore immune from the confiscation of one’s property. In no little time frustrations with this possible outcome led authorities to permit extraordinary measures to induce indictees to “voluntarily” accept trial by jury. Prison forte et dure, the limitation of prisoners’ sustenance to bread and water on alternate days, was employed to weaken the will of resisters. This was subsequently supplemented by peine forte et dure, the application of weights, incrementally increased, to the prisoner’s chest.35 A sweeter method of inducement was that authorities, despite perhaps initial hesitation, did not require abjuration after a jury’s not guilty verdict, as they did after success at the ordeal. Being found innocent by a jury in court entirely restored one’s freedom.
Very frequently, as I wish to show now, abjuration into perpetual exile was not a punishment but in large measure a mitigation of punishment. It was an act of mercy available to, for example, the thousands of people who gained sanctuary in medieval England and on the continent.36 Sanctuary and asylum—or rather, certain important goals of sanctuary and asylum, such as the prevention of socially disruptive blood feuds—were already in place in biblical antiquity and have been well-documented by classical historians and by scholars of religion.37 The scriptural texts on sanctuary cities as places of refuge and new beginnings (Numbers 35, Deuteronomy 19, Joshua 20–21, etc.) constituted the deep background for High Medieval acceptance of the concept of asylum. There were also Roman precedents.38 And yet the legal apparatus associated with claims of sanctuary, more or less consistently and routinely applied across Catholic Europe in the High Middle Ages (if not before), was quite distinctive and had little in common with the detailed practices of the biblical system.39 It was—the word is evoked in T. B. Lambert’s article on the historical anthropology of sanctuary—odd, odd as a kiwi bird.40 Perhaps so. I prefer to think of it as akin to a wayward adolescent, just misunderstood. At base, if a felony suspect managed to flee to a place of asylum, such as a church or churchyard (French administrative records call them sacra et religiosa loca41), he or she could ask for sanctuary and, if it was granted by the appropriate local magistrate, was allowed to abjure the realm.42 This is known as general sanctuary and must be differentiated from residential sanctuary in chartered territories, which will be taken up at the end of this book.43
The phrase “managed to” in relation to reaching sanctuary is important here. Consider the curious case of John of Hinton.44 He was a thief who had stolen dies which could be used to coin royal money. He appears to have been observed and followed at a distance by Richard le Guette, a prominent local man. But on his way John still managed to steal a hatchet from a private house. The owner of the house saw him and pursued him. When he caught up with him, the householder overpowered the thief and beat him viciously. The ruckus attracted two other men, who joined in the fun and then helped themselves to John’s belongings, including what they did not realize was the loot from his first theft. They left him in a heap, half-dead.
After their departure, Richard le Guette, the original observer of John’s theft of the coin dies, found him, but, of course, the latter no longer possessed any of the evidence of his misdeed. Richard simply ordered the battered man to get a move on. Beset by his injuries, John could scarcely do so. Word reached the hapless felon’s wife, Cristina, who brought a cart to pick him up. When he told her what he had done, instead of driving him home she took him to the parish church, bringing him into sanctuary on 8 October 1312. Meanwhile, to finish the story, the men who had beaten John searched their take and discovered the dies. Scared witless at the enormity of John’s crime and its implications for them if they were discovered with such objects, they decided to hand the dies over to the local coroner, the royal official who oversaw much of the King’s justice, with the explanation of how they got them. When the one entrusted with this task reached the coroner, he discovered the royal officer about to take John of Hinton’s oath of abjuration. In the end, John abjured, the men who beat him were fined, and all the others involved, including Cristina, were exonerated of any complicity in the original theft.
Getting to sanctuary was hard for John of Hinton just because of a run of bad luck. But it was fraught for all suspected felons because preventing such people from reaching sanctuary was licit and encouraged. Thus, in one incident, reported for 23 February 1293, a porter and a clerk independently observed a prisoner awaiting trial escaping by night from a castle keep. Escape was itself a felony, and if the escapee had succeeded in reaching an asylum, he could claim sanctuary for the escape and for the original felony for which he was awaiting trial. Both the porter and the clerk therefore tried to prevent the escapee from getting to a church. In hot pursuit and in the darkness the clerk got mixed up and thought the porter was the escapee. In the ensuing scuffle, the clerk killed the porter and was himself wounded. Then the authorities arrived and figured out what had happened. By then, the escapee was long gone. The question was what should be done with the clerk. In the end he was forgiven the porter’s homicide, for the pursuit of a jail breaker trying to reach sanctuary was praiseworthy. The death was a regrettable mistake in an otherwise laudatory effort.45
In another incident, a certain John Alisaundre, suspected as a habitual thief, sought sanctuary in a church, whereupon the local coroner was summoned to receive his confession.46 Locals had no love for John, the perpetrator of multiple larcenies and robberies. Theft in a society where surpluses were low was not a petty crime unless the coveted article or money was trivial in value, and theft, then as now, was often accompanied by serious physical violence. As a felony, therefore, it merited corporal punishment. Habitual thievery, by this logic, deserved the ultimate sanction, death.47 There was a proof text: in Luke 23:39–43 (AV), one of the thieves—the good thief—crucified at Jesus’ side admitted the justness of his and his companion’s execution with the words, “we receive the due reward of our deeds.”
Yet, there he was, this John Alisaundre, in the parish church, the very center of the congregants’ spiritual life, sheltering under the protective cloak of sanctuary. His would-be avengers, doing perhaps their version of God’s work on earth, interrupted the coroner on his way to take John’s confession, in the avowed belief or pretense that sanctuary began to apply only at the moment the claimant admitted his guilt. If this were true, then they could licitly seize John in church and thereby deny him asylum at any time before the coroner arrived. But it was not true. John’s person was supposed to be inviolate as long as he remained in sacred space. There were a few genuine gray areas in the law of sanctuary—not many, but a few. Whether sanctuary applied to nighttime crimes, for instance, was long contested.48 But a sanctuary seeker’s immunity while in church was not a gray area. When this immunity was violated, those who held the rights of sanctuary expected a firm royal response to the transgression.49 Yet, it was perhaps the vigilantes’ awareness in John Alisaundre’s case that a few uncertainties did exist in the law which encouraged them to advance their claim and act on it and trust to the torpor of bureaucracy to insulate them from serious retribution. They entered the church under cover of darkness, seized the unfortunate man, and beat the also-unfortunate guards, locals like themselves, who had been assigned to protect John from vigilantes. The king’s peace and the church’s peace were in multiple ways shattered by the perpetrators of these offenses, which took place in 1311.50
Sanctuary as a system and properly understood was, despite rare official criticisms,51 supported by all medieval Catholic princes. However, one can infer from the cases noted thus far that this does not imply popular enthusiasm for it. Indeed, when a suspect managed to reach a place of asylum, pursuers on occasion willfully and in full knowledge and admission of their wrong violated the precincts to exact retribution. Breaking sanctuary almost inevitably put the pursuers at odds with royal justice. An exception in which officials themselves violated sanctuary in the same way as mobs did involved the treatment by Chief Justiciar Hubert Walter of the rebel William Longbeard in 1196. Contemporary apologists were embarrassed by the breach, which included burning William out of hiding, and tried to explain it away. They adduced a reason which was supposed to justify why no one was punished for the breach. William was said to have had carnal relations with his mistress in the church, his semen polluting the holy place, a sacrilege which trumped his claim to asylum.52 The embarrassment and special pleading here, however, support the general impression of royal repugnance over the violation of sanctuary. Celebrity cases like this, few enough in number (William Longchamp’s and Hubert de Burgh’s are two other examples), have garnered perhaps more attention than they deserve.53
The following cases are more typical.54 On 20 August 1284, a commission of oyer and terminer (a special commission to hear felonies) met to try certain “satellites of Satan,” as they were termed by the authorities meting out punishment. On a recent night these satanic men had “entered Saint Mary le Bow (London), violently seized Laurence Duket, who had sought refuge there for some alleged crime, and after various torments hanged him with a rope in the said church.” Now the perpetrators would be punished.55 Another judgment, this one on 4 April 1309, recorded that a group of thieves and other criminals who had escaped the king’s prison at Windsor sought sanctuary in the cemetery of Windsor and should by rights have received its protections. But they were dragged from the churchyard by locals, accused later of “slaying and beheading certain of them on the journey back” to prison. The king directed that justice be done on those who committed this offense, for they had broken the king’s peace, which included the protection of sanctuary. The names of those slain and those who survived were also to be recorded, pursuant, I presume, to the perpetrators’ trials or to facilitate acts of contrition for the outrages on the survivors and the murder of the deceased.56
My research suggests that instances of vigilante justice of this kind were rarely successful. Yungwin of Enfield in Middlesex was dragged from sanctuary in 1228, but his guards managed to rescue and restore him. And, so, like most men who got to a place of asylum, he survived long enough to begin the process. The first question was always whether he would agree to stand trial.57 Declining to do so, as almost every sanctuary seeker did, Yungwin was obliged to confess before abjuring the realm.58 (This was a separate procedure from religious confession, in which the sanctuary seeker’s statements were closed to the coroner.59) Thousands of other men did the same from the late twelfth through the mid-fourteenth century.60 Women did so, too, for they constituted a small but not insignificant proportion of asylum seekers, perhaps as great as one in ten, the proportion of women among accused felons in general.61
All sanctuary seekers who sought to abjure had to acknowledge their crimes to local magistrates (in England a task usually although not exclusively confided to coroners). I have remarked already that they could not obtain sanctuary for felonies for which they had already been convicted in court, although a few who perhaps knew no better—such as a judicially condemned man who was hanged poorly, revived before burial, and thereafter escaped to a church—tried unsuccessfully to convince officials that they should be allowed to abjure.62 They might also knowingly scuttle the process at their own risk by trying to escape. Occasions are known in which compatriots bribed guards to let their friends escape before the abjuration process was complete.63 If they were captured attempting to flee, they incurred automatic sentence of death and almost invariably execution of the sentence. If their flight was successful, they became outlaws, subject to capital punishment upon capture (on which a great deal more later).64
Abjurers were obliged to carry crosses and dress penitentially in acknowledgement of their guilt, and also to announce their protected status on the way into exile. The crosses would have been modest-sized simple wooden objects and the garb of no or little value.65 Many abjurers, even so accoutered, were frightened of what vigilantes might do to them if they departed sanctuary. Magistrates were torn. They wanted these undesirables to leave at the appropriate time but were loath to pollute a church by using an act of violence to force them out. So, parallel to the aforementioned prison forte et dure, they drastically reduced or ceased food deliveries to the sanctuary to induce reluctant abjurers to depart.66 Starvation was not violence in contemporary terms, but it was not a happy alternative for the abjurers. Also, churchmen did not rejoice to see their asylees wasting away. But, as Henry de Bracton knew, the law was the law.67 One must be cautious, of course, in depending on Bracton’s and other prescriptive texts,68 which have to be supplemented by documents of practice. Such texts do lend support to Bracton’s views. Indeed, even men who expected better treatment, such as the former Chief Justiciar Hubert de Burgh and a disgraced Chief Justice, Thomas Weyland, who achieved sanctuary but did not wish to leave, were subjected to starvation.69 Whether responding to hunger or not, a number of abjurers, such as John Philpot of Drayton-in-Hales in Shropshire, who was granted sanctuary and abjuration in the monastic church of Saint Andrew of Northampton for homicide and theft, fled rather than set off to foreign lands. In this case the coroner had ordered the bailiffs of Northampton to watch the church to prevent escape until all aspects of the process leading to exile were completed. Presumably they were fined for their laxity.70
One problem, of course, was how to identify fugitives who successfully fled sanctuary rather than submit to trial or exile. After all, if they did escape, one would expect them to try to blend in with travelers, perhaps by pretending to be pilgrims if, at the time of escape, they had already been issued their crosses and mourners’ garb, which resembled pilgrim attire. Or they could ditch the penitential markers during or following their escape and steal clerical or common lay people’s clothes. If, later on, such a one was caught in some other crime or came into custody for brawling, public drunkenness, or lewdness, how would a local beadle or law enforcement officer, let alone an ordinary peasant or townsperson, identify the miscreant? How could he be identified as a one-time abjurer—a man who had forfeited any future claim to mercy by violating his oath to leave the realm?71 How could one prevent multiple abjurations?
At first it may seem odd that evidence of concern in England over this matter—the possibility of fraudulent multiple abjurations—is quite rare. Records show that a very few abjurers were suspected of or succeeded in obtaining more than one abjuration, but really not many. In a case from the year 1212, one Robert, the son of a certain Geoffrey, abjured at York. He was a parson, presumably a low-level clerk, for abjuration was not supposed to be available to those who enjoyed benefit of clergy.72 He was also suspected of earlier having abjured at Nottingham. Upon inquiry, however, York officials discovered that the suspicion was groundless.73 There is a clear case of two abjurations in Somersetshire by a single man, John Hipecok, sometime before 1243. This case involved collusion and was almost unique in type.74 After John’s first abjuration several villagers of Northover managed to rescue him and hide the confessed thief before he could be led away into exile. The collusion was revealed when he again got into trouble for stealing, this time in the Somerset village of Crowcombe. He sought to abjure and succeeded before anyone who knew of his earlier abjuration recognized him. The efficiency of the English administration remains a contested question,75 but efficient or not, there is no doubt that at best, news traveled slowly and was distorted in the course of the journey, which would help explain John Hipecock’s success. Even so, there are almost no other examples of multiple abjurations in England.
To digress briefly, multiple abjurations were a far greater concern on the continent. To prevent them, continental jurisdictions, most of which otherwise had similar systems to the English, branded abjurers.76 They imposed branding either on a shoulder or a finger with irons purchased for the purpose, usually with the mark of the fleur-de-lys.77 A less-used mark, but one employed in the Champenois commune of Provins in the late thirteenth century, was the sign of the cross.78 The overall preference for the fleur-de-lys over the cross is explained by the fact that penitents on occasion had themselves branded with small versions of the latter.79 It would be awful to mistake a penitent pilgrim for an abjurer or vice versa.
In ordinary life the fleur-de-lys, concealed by clothing, was invisible and a branding mark on the palm side of a finger used to make the ritual sign of the cross was hidden easily enough. Yet, routine examinations of accused criminals’ shoulders and fingers while in custody would have revealed the lily-brands of former abjurers to the authorities and resulted in execution. It was thus that in 1273 a woman, who stole some shoes and linen cloths in Saint-Maur-des-Fossés, a southeastern suburb of Paris, was discovered already to have been branded (que inventa signata). If customs associated with the execution of women there were followed, she was buried alive under the gallows of the monastery of Saint-Maur, which had capital justice in the village.80
An exile branded on the finger could conceal abjuration by amputation of the appropriate digit. Criminals operating on the continent and lacking a finger or two, which they or comrades had severed, were common. Indeed, the Établissements of Rouen, the legal customs of the capital of Normandy, which were adopted by a large number of communities, take it for granted that beadles would come upon both branded and finger-severed thieves.81 However, since fingers were always being lost in industrial, agricultural, and domestic accidents, as well as in brawls,82 a felon’s lack of a digit or two, while raising suspicions, constituted at best an equivocal presumption of earlier banishment.
Branding on the shoulder was just as widely used on the continent, perhaps because effacing a fleur-de-lys from a shoulder had less to commend itself in escaping detection by the authorities. However, it is not a question of men and women shying away from the pain of comrades gouging out even a small chunk of shoulder flesh. One could argue in one’s mind which was worse, this or the severing of a finger. But unlike a finger, which could be lost in innumerable innocent ways, a deeply scarified shoulder would possibly raise greater suspicions when a prisoner so marked was adjudicated for another crime at the bar of justice or offered a confession in a plea for mercy.
These marks were not meant to shame a person in the manner of Nathaniel Hawthorne’s scarlet letter. They were not public signs of infamy in the manner of the severed ear, hand, or foot of a convicted thief or the facial branding of thieves, heretics, blasphemers, even breakers of labor contracts.83 Such facial markings persisted despite an increasing reluctance in the High Middle Ages, or so it has been suggested, to disfigure the human visage—the image of God.84 Quite the contrary, they were intended, as Jeremy Bentham long ago observed, to forestall a future claim to abjuration or judicial leniency in general if this ever again became an issue.85 Exile as mercy or as punishment was ordinarily closed to known recidivists under the terms it was originally offered.86 Discovery of an attempt to finagle it a second time merited horrific retribution.
This digression on continental practice is justified by the contrast with the contemporary English system, where the branding of abjurers was extremely rare in the long thirteenth century. Yet, the English were familiar from scriptural and classical sources with the interpretative traditions of the mark of Cain and with the long history of human branding (and tattooing, which they may have misunderstood as branding). They were as familiar with this material as were continental Europeans.87 Authorities on both sides of the Channel were aware that the burning of flesh was used in ancient times for punishment, for initiation into sacred rites or mystic societies, and to signify slaves’ owners. Moreover, it appears occasionally as a punishment or judicial warning in England in the High Middle Ages, as the searing of a suspicious vagabond’s private parts in Surrey in 1235 attests.88 In other words, it was not an excess of compassion in England as opposed to the continent which inhibited the branding of abjurers, at least not in a world in which the island’s judges from time to time condemned convicted thieves to amputations.89 That the English did not resort to regularly branding abjurers until much later in the Middle Ages is a subject I shall address and attempt to explain in chapters 5 and 6 in the context of differential rates of illegal return of abjurers to English and continental jurisdictions.90
Now let us return to the subject of abjuration as mercy. Mercy was also at work in the abjurations offered to a group of English subjects much smaller in number than that of the sanctuary men and women: a special sort of kidnappers, those who snatched children in order to arrange marriages for them and get their hands on their lucrative inheritances, in cases in which the kidnappers obviously did not have formal feudal rights over the wards. The statute, Westminster II of 1285, which addressed this among many other problems, put the matter this way: “Concerning children, male and female, who have been seized or abducted and whose marriage belongs to another. If the one who carries out the seizure has no right in the marriage, even if he restores the child unmarried or makes satisfaction [that is, pays a sufficient post factum payment] for the marriage, he shall nevertheless be punished by two years of prison. And if he does not restore [the child] or marries the heir after she reaches marriageable age and cannot make satisfaction [for doing so], let him abjure the realm [abjuret regnum] or suffer perpetual imprisonment.”91 This provision of the statute has fascinated jurists down the ages.92 Here we seem to apprehend abjuration as straddling the boundary between mercy, mitigation of punishment (perpetual imprisonment being worse), and pure punishment itself.
The last group of people who benefitted from the royal mercy of abjuration and thus contributed to the exile community was approvers.93 With this group, mercy and punishment also existed in tension. A member of a criminal gang who knew or believed that the authorities possessed full proofs establishing his culpability could turn crown’s evidence, confess his offenses and, playing upon the nearly universal fear of gang terror, agree to identify and accuse (or in technical language, appeal) his fellow criminals.94 Before the era of jury trials, when an approver’s alleged accomplices were apprehended, he was allowed to do judicial battle—to test or prove himself, hence the name. Ordinarily women were not permitted to do battle except through champions, an inappropriate option in these circumstances. However, it was possible to adapt approval procedure for them and send the men appealed by women, or women who were appealed by either men or women, to ordeal.
At any rate, male approvers fought each and every one of their opponents, men who they asserted had been their accomplices in criminal gangs, and they did so in single combat, the bilateral form of the ordeal. They fought each of them sequentially to the death or until one or the other party gave up, which was taken as a sign that the loser was not only cowardly (craven) but guilty. Approvers who won every battle avoided execution—remember, they were already confessed felons—and were permitted to abjure. Jury trials subsequently supplanted judicial combat, even though in England battle did continue as a mode of proof in other sorts of cases.95 The process implicit in the transition to juries also admitted women without having to further modify procedures.96 Under the jury system, those approvers who were fortunate enough to see all their alleged accomplices convicted at trial were permitted to abjure. The less fortunate—just one acquittal was sufficient to bring on misfortune—were executed as condemned felons.
Approval procedure could give rise to systematic injustices.97 Some unscrupulous or frustrated law enforcement officials induced criminals to accuse other undesirables, whether or not they suspected the latter were in league with them and sometimes to settle personal scores. Efforts to prevent this were real but not fully effective.98 The special eyre of Surrey and Kent, generated in the political tensions of the time and over which Hugh Bigod presided, uncovered such instances in 1258 and 1259.99 There is also something suspicious about the many cases of approvers in Essex in 1291, some of whom claimed as many as a dozen accomplices in their crimes, and about the confessions generated from this process, which the approvers were said to have made “with much joy” (cum mangno [sic] gaudio).100
Few approvers, either in the era of judicial battle or in that of jury trials after 1215, survived the process. A case from 1237, enrolled on the Close Rolls, documents one such instance, in which five successful prosecutions led to the approver’s abjuration of the realm.101 But imagining their more probable fate, approvers must have contemplated breaking jail as they awaited the outcomes of their alleged accomplices’ trials. In London in 1325, four approvers came close to translating these thoughts into action. We learn that authorities accused them of abetting the jailbreak of ten other prisoners, assuming, I would suggest, that in the confusion they too might make their escape. Five of the jail breakers managed to get to sanctuary and thereafter abjured the realm, but the other five were captured by guards and nearby residents, an outcome which appears to have persuaded the approvers who saw the capture to stay put. Abetting had to be proved, of course, in a formal trial, which would take time. If it had been, these men would have been led to the gallows. Before this, however, at least one of them, William Broun, an Irishman, died in prison of natural causes.102
THE CENTRALITY OF ABJURATION
IN THE ADMINISTRATION OF JUSTICE
Rates of acquittal, to return to an issue raised earlier, have been invoked, whether rightly or wrongly, as evidence of medieval reluctance in certain circumstances to carry out the death penalty and punishments by dismemberment. Although contemporary artists were very attached to depicting corporal punishments and although death and dismemberment vied with fines as the most often mandated punishments for felony in England, juries of the early fourteenth century, one scholar has observed, “were notoriously unwilling to convict, as anyone who has studied the eyre rolls of 1329–31 will testify.”103 The recourse to exile, at least in the case of sanctuary men and women, the vast majority of abjurers, constitutes complementary evidence of this reluctance. It is unfortunate that Frederic William Maitland, given his genius, wrote but a few words on abjuration, but he did observe that it “seems to have been very common.”104 In fact, in the period from 1180 to the mid-fourteenth century thousands of people abjured the realm of England.
It would be risky to say how many thousands of men and women abjured in the long thirteenth century, but some risks are worth taking.105 The largest category of abjurers and that on which the most work has been done comprised sanctuary men and women. Estimates have very occasionally been ventured as to the number of people granted sanctuary in a single county in one year or group of years based on published coroners’ rolls and judicial records prepared by the itinerant royal courts. These counts vary according to the population size of the county, the nature of settlement patterns (the proportion of large towns, small towns, villages, hamlets, etc.), and the political, social, and economic conditions which also affected the incidence of criminal activity. Variously extrapolating from these county-level estimates to the entire realm, legal historians have guessed that from two hundred to two thousand persons per year were granted sanctuary in England.106 The majority of these, as far as one can tell, also abjured. Presuming that the vast majority who abjured went into exile—a contested point, but one which appears likely, based on my own research107—a guess can be made as to the overall number of abjured exiles from the later twelfth to the mid-fourteenth century, the period covered in this book.
First, in order to determine a range of possibility, there is no reason to lower the cluster of smaller estimates, around two hundred per year, which have been calculated mainly from sanctuary data drawn from sample sets of published judicial and coroners’ rolls of less populous and more rural counties. Nor need we adjust these low estimates downward, even if a few sanctuary abjurers somehow thwarted their exile from such counties and the realm. This is because, as we are aware, there were other categories of abjurers, such as approvers, whose exile, though accounting for only a small number of people, would have compensated for the few successful fugitives who, while in sanctuary, had sworn to depart the realm. Higher annual estimates, such as the two thousand figure mentioned, are skewed upward by extrapolation from inclusion of sources for more populous urban regions. England in the High Middle Ages, however, was a mostly rural society. (One estimate is that in the year 1300, 700,000 of its approximately 4,000,000 population were urbanites.108) So, a significant downward adjustment in the upper limit of the annual number of exiles is reasonable in this instance. Let me therefore err on the side of caution and be drastic in my reduction, reckoning, say, five hundred men and women foreswearing the realm in a typical year.
On average, this would come to little more than a dozen abjurers per year per English county, the mean population of which was approximately 100,000–150,000. I offer a range because average county population depends on the estimate of the size of the general population of the country. Four million was the suggestion cited above, but five and a quarter million is also commonly estimated by demographers.109 Whatever the case, the median number of abjurers per county would be much lower because of the distorting effect of London and a few other areas. So, most counties would have been abjuring into exile fewer than a dozen persons a year. Finally, since the system of exile was well in place by the turn of the twelfth/thirteenth century110 and (as will be demonstrated) was functioning routinely through the mid-fourteenth, we are talking about 150 or so years of continuous operation. Even with the restrained estimates I have made, this would mean that approximately 75,000 men and women were sent into perpetual exile through abjuration in the period under consideration—and I feel certain this is a significant undercount.
It is lamentable that conventions of text editing dull the perception of the scale of the enterprise and inhibit more precise calculations than are possible here. Abjurations were so routine and often so formulaic that more than one editor of judicial and administrative rolls has chosen not to print them at all or not in full. The editor of one set of inquisitions, for example, mentions a case from Bedfordshire, that of John Tibbe of Saint Albans, while remarking in passing that the roll with this record contained many other abjurations that he decided neither to print nor enumerate.111 Another editor, a bit more helpful, at least noted the precise number of abjurations he saw fit not to print.112 A third published a few “interesting” abjurations while noting inconsistently how many other less interesting ones were on the roll.113 Despite these editorial practices, which have served habitually and substantially to undervalue the significance of abjuration, exile, as I expressly averred at the beginning of this chapter, was close to the very heart of the treatment and control of criminals and people of bad repute in England during the High Middle Ages.
Moreover, just about every European polity appears to have had structures and procedures in place which were similar or parallel to those which in England led to abjuration, or even went far beyond them to employ abjuration and exile as a punishment of the first instance. The High Middle Ages constituted, in the words of Henri Bresc, a “world of exiles.”114 These structures and procedures, varying by region and over time,115 also began to coalesce, as in England, into a tight system in the late twelfth and thirteenth centuries, although, also as in England, they drew on far earlier and disparate practices which anthropologists have associated with weaker political formations than the High Medieval state.116 In Ghent, to give one example, the infliction of exile was so common that its municipal clerks kept a special register, the Book of Exiles (ballincboek). The thousands of entries are a staggering number for a town of Ghent’s population: say, forty thousand at any one time.117 Contemporary allusions to and examples of similar registers in contemporary France, Flanders, and Central European polities and jurisdictions such as Krakow document thousands upon thousands more.118 In a word, exile—both as punishment and as mercy—was among the core principles and practices of European jurisprudence in the High Middle Ages and, for many jurisdictions, well into the early modern period.119 The language of banishment permeated the legal discourse of the entire age.120
A FEW WORDS ON MERCY
Exile as a form of mercy in England and elsewhere fits comfortably with an ideology which came to articulate good rulership as a balance between rigor and clementia.121 But this does not mean that the system of justice employing it was “soft” or that mitigation of punishment was necessarily motivated by compassion. I believe I have shown this. So, I am not trying to paint a picture of a gentler and kinder Middle Ages. As a form of mercy, abjuration into exile was harsh, and mercy itself, in various other forms, was sometimes problematic, both in theory and practice.122 Like plea bargaining in those modern liberal polities which retain the death penalty, the offer of abjuration to approvers, for example, though formally an act of mercy, had its principal legal aim in obtaining convictions, not in showing compassion. This is, in part, why there have been attempts to curtail plea bargaining in the United States. As a kind of coercion (bargain or die!) it has more than a light whiff of forced self-incrimination in violation of the Fifth Amendment to the Constitution, a point beautifully argued in Joseph Hoffmann, Marcy Kahn, and Steven Fisher’s classic article, “Plea Bargaining in the Shadow of Death.”123
So when Karl Shoemaker wrote, rather touchingly, that “poor and friendless [felons] could still turn ‘approver’ and save their necks by defeating those they accused in judicial battles,”124 he went too far. The old law commentaries deem the king’s response to successful approval, his “pardon . . . as to life.”125 It was technically a bestowal of mercy, in other words, but every aspect of the process leading to this act of grace smacked of brutality. Nor, despite Shoemaker’s phrase “poor and friendless,” is there any compelling contemporary evidence, as far as I know, that the justification for approval was concern for the poor or the friendless felon. Approval was designed, after all, to find more people to kill because criminal gangs so affrighted society or, again in the words of an old standard law commentary, to “discover . . . accomplices.” There is not a word about compassion.126 Letting one felon go free into exile in order to get at and punish the rest of the gang of which he was a part seemed worth the price. And, in the end, the approver almost always failed to achieve freedom; few managed to “save their necks.” One unsuccessful judicial combat or one failure in the jury prosecution of an alleged accomplice meant the approver’s own death, soon after his loss to his opponent, in the earlier instantiation of the system, or at the order of the court in the later.127 Did any law-abiding subject believe that there was anything so bad about an outcome of this sort for a terrorizing felon like an approver, a member of a gang? Not so far as I have been able to discover from contemporary sources.128
Other expressions of mercy were almost as harsh as approval, with its infinitesimal hope of a successful outcome. The case of a woman who, out of fear, harbored a gang of thieves and murderers for a short time and concealed their booty for them illuminates the matter. In the course of an investigation, the authorities interrogated the woman. Frightened at the possibility of reprisals from gang members, she lied to her questioners. But they managed to run down the criminals despite her lies, and after doing so obtained convincing information about her role, including her coercion into it. The lies were what galled the authorities, lies to shield a gang of murderers and thieves who had terrorized law-abiding folk in the community. If a man had told such lies out of fear, it would have been chalked up to cowardice and requited with death. But what was the proper judicial response to this woman’s fear? The authorities noted that “she has deserved death, but by favour [per dispensacionem] let her eyes be torn out.” Such was the mercy meted out at Shrewsbury in 1203.129
At Hilary Term a few years before, in the winter of 1200, a horse thief was brought to justice. Opinions differed as to the nature of his culpability. Many thought he was a horse thief pure and simple and nothing else, but a few people were convinced that he genuinely believed he had stolen the horse at the instance or for the sake of God. They did not share his belief, but the judges decided that, guilty as he was of the crime, his motivation, however weird, was pure. So, though they acknowledged that he might deserve severer retribution, meaning death, they limited his punishment to the amputation of a foot.130 This, then, was another—albeit another draconian—act of mercy. Even dragons, of course, have degrees of ferocity. The mercy meted out to the God-inspired horse thief, harsh as it was, was less severe than that inflicted on a different convicted felon at the Trinity Term in the spring of the same year—the loss of a foot along with an arm—but it was mercy in the same key.131
How should one characterize the various severe forms of mercy which we have seen at work? As one now speaks of “tough love” to indicate the strong and strong-arm discipline embraced by some boot camp enthusiasts in dealing with self-destructive and violent adolescents, one might also speak of medieval “tough mercy.” At first blush, it seems appropriate. The creators and administrators of the system were themselves tough and tough-minded men. The difference is that tough love has rehabilitation and repatriation from boot camp to home and everyday society as its twin goals. The mercy of exile, the mercy of primary interest in the present study, held out very little promise of future repatriation, but rather a chance for rehabilitation outside the realm.132
If tough mercy is not quite the right phrase because of the conceptual baggage associated with its counterpart, tough love, one might invoke a different phrase adapting Christopher MacEvitt’s notion of “rough tolerance,” which he has used to describe Latin domination of non-Chalcedonian Christians in the first few decades of the existence of the Crusader States. One could speak of the system and experiences described in this book as “rough justice” or “rough mercy.” “Rough” suggests a painful motif in the system and in the intended and expected experience, which is accurate enough. It is suggestive in this regard that early editors of the Curia Regis Rolls, the rolls of the chief court, indexed “abjuration” purely as a subcategory of “punishments,” without the least nod to its character in far more instances as a formal act of mercy. The adjective “rough,” however, also and unfortunately suggests a certain crudeness, an unofficial or ad hoc quality to the set of structures and practices which were in the process of being regularized. (An analogy is worth making with the use of the adjective in the phrase “rough music” for vigilante violence.133) This does not reflect the true nature of the sophisticated and routinized system of exile which was in place in the thirteenth and early fourteenth century.
So, the phrase I have chosen is “fearsome mercy.” The adjective lays stress on the retribution which threatened those who contravened the system and the consuming uncertainties of the exile experience itself for those who were unable to avoid it. It also suggests the ambivalence which those granting mercy must have felt about their reluctance to exterminate malefactors who might yet commit terrible crimes. As Claude Gauvard put it so well, “Le banni fait peur et il a peur”: “the exile generates fear and is himself afraid.”134
CONCLUSION
The fully articulated system of abjuration into perpetual exile emerged in England at a time when criminal prosecution began increasingly, thanks to the invention of the grand jury, to lie with the king, and when the crime was held to offend what might be called the community of the realm (as opposed to merely the victim’s family or his lord). Elsewhere—that is, on the continent—it arose when, not to put too fine a point on it, there was no medieval state to speak of, diplomacy was local, and peace among localities was precarious at best. There was little or no sense in either case that the exiling authority had to take into consideration the sentiments of all other jurisdictions to which its exiles might travel. By the time such a laissez-faire attitude was, circumstantially speaking, less justifiable, practices were already firmly in place, indeed had achieved the status of immemorial custom, and changes in them would have smacked of undermining ancient traditions, never a very attractive sensibility among medieval jurists and administrators. One need only think back to reactions to attempts to suppress ordeals, which, despite the English and Danish examples, remained ultimately unsuccessful for decades and in some cases for centuries in over 90 percent of Catholic Europe.
But there was a further consideration which complicated attitudes in the specific case of English abjuration. The exile system was easier to accept in regions where multiple capital jurisdictions abutted one another, as they did on the continent, and where no one jurisdiction was receiving the whole mass of another jurisdiction’s exiles. I have no illusions as to the character of abjurers from England. A few, as I shall demonstrate in chapter 2, were caught up in circumstances and were perhaps harmless enough, but many were hardened criminals and opportunists, and all were so down on their luck upon their exile that they were susceptible to engaging in antisocial behavior of the most heinous sort. Moreover, the central problem in the English-French example, as I shall discuss in chapters 3 and 4, is that almost every English abjurer went to France. Even if, as I later estimate, there were no more than two, three, or four such people on average daily leaving the country as exiles in the 150 days of the high shipping season from Dover, the principal port of embarkation, the steady arrival of such people at one Franco-Flemish Channel village, Wissant—which is where they all debarked—could not help but strike some observers as both a morally questionable and potentially dangerous immigration. The long and special relationship between the English crown and the county of Boulogne, within which Wissant lay, may help explain the absence of voluble local resistance.135 In any case, Englishmen did not have to worry about the dumping of French felons into their country as an act of “retaliation,” which otherwise would have been a motive to curb their practice. For most French exiles who abjured the realm were absorbed into the vast array of bordering continental territories along its more than 2,500km land borders. Those exiled from towns and other jurisdictions with capital justice within France merely went elsewhere in the kingdom. In the event, almost no exiled French felons took ship to England.136
French anxieties did rise significantly by the mid-fourteenth century under circumstances in which the negative effect of the asymmetry was brought home. But before I treat this issue in the epilogue, I shall address in chapter 5 those English exiles, a distinctly tiny minority of my “sample” of over two thousand, who, in one way or another, returned to their homeland during the long thirteenth century.137