THIS STORY OF EXILE and of the exiles themselves has provided a distinctive and, I hope, useful entry into many aspects of medieval life, such as criminal process and criminality itself, ideas and practices of punishment and mercy, interethnic and interlinguistic relations, foreigners’ involvement in prostitution, and so on. Yet recourse to exile entered a crisis during the mid-fourteenth century. The dramatic title I first intended for this epilogue, “Death and Resurrection,” would have overstated both the crisis and its sequel. The final choice, “Atrophy and Displacement,” captures the situation better with its implication that certain aspects of the old and weakening system were displaced over a considerable interval of time onto newer or existing forms of dealing with felons while at the same time officials were still avoiding a superabundance of executions.
It will come as no surprise, perhaps, that the reduced reliance on exile in England owed itself to the growth of what many historians call proto-nationalism, in particular that which arose during and from the Hundred Years’ War (1337–1453). The spillover from the war may have affected many other jurisdictions on the continent as well, but most of them, France excepted, not in so profound a manner. It is not at all the case that developments in their systems of exile, in particular those of municipalities, share the temporal arc of changes in England. Ghent is representative of these municipalities, despite the fact that its location on the territorial march of the seemingly endless Anglo-French war inevitably influenced the lives of its abjurers. Its Book of Exiles proves that banishment was a flourishing legal process for many decades after the close of the Hundred Years’ War.1 Indeed, if we possessed the sources, we could probably expect to find that many of the male exiles from Ghent during the war had found employment as soldiers in the contending royal armies and many of the females as camp followers.
My inclination is to think that it was the Wars of Religion, not the Hundred Years’ War, which in continental jurisdictions more significantly increased the political tension around exile. It is to be expected that sectarian Protestant jurisdictions delighted in dumping their felons in Catholic and rival Protestant territories, although no one really wanted to receive such felons, stained as they might be not only with criminality but with heresy as far as authorities in the lands of exile were concerned. Yet, despite the obvious concerns, resort to exile was tenacious. Here one must differentiate the expulsion of religious dissenters merely as religious dissenters, like the English-forced abjuration of certain contumacious Roman Catholics into exile during the early phases of the Reformation, which was really a species of political exile.2
Despite these speculations, for the two territorial monarchies at the center of our story sending one’s confessed criminals to the other country atrophied for different reasons. And irrespective of the profoundly medieval inclination to maintain the law unchanged—to preserve its integrity, as it were—forces conspired to bring the system of extra-regnal abjuration between the two countries almost to an end by the close of the Hundred Years’ War. In the first place, such deportations were tantamount to acts of belligerency during the war. No doubt previous military conflicts between the two realms generated this or similar sentiments, but the Hundred Years’ War was special. More than any previous conflict between the two kingdoms, it encouraged the hardening of rival identities, French and English, identities which were there already in nuce but grew ever more exclusive as time went on and hostilities and distrust persisted. It was this same proto-nationalism that in perfect parallel led to the severing of ties established in the wake of the Norman Conquest between the English alien priories and their mother houses in France. The whole set of relations crumbled after 250 years during which neither kingdom seemed to detect serious problems with the ties.3 Problems? Yes. Men were already wondering aloud whether Englishmen and Frenchmen could endure living under the same roof of an alien priory before the advent of the Hundred Years’ War.4 But unsolvable problems? No. As the war ground on, however, it became more and more a corrosive solvent of structures once binding France and England. We need think only of the probable effect of the threats of mutual mass exile of the subjects of one realm to the other.5
Hostilities bracketed periods of demobilization during the war. English troops who were demobilized in France lived off the land. French who were demobilized during the truces savaged their own people, but the root cause of the existence of the indigenous marauders was always known to be the English war. Demobilized troops were a scourge.6 Perception of the deportees, while the system of exile endured, was harsh enough. How much more unforgiving were perceptions of them when it became known that the exiles and potential exiles, felons all, were volunteering for and being recruited to England’s armies for the sake of pardons and then demobilized in France during the truces? Fear of Englishmen among the French population rose to an intensity not matched or exceeded until the aggressive and lethal rivalries of the Napoleonic era.
Yet, Frenchmen loyal to the Valois also feared that some of their own countrymen were capable of being seduced into betraying the fatherland by funds funneled through English secret agents.7 In 1340, Jacquet de Meri was detained at Pont Audemer for forty-three days on suspicion of spying for the English.8 The French authorities also suspected Englishmen otherwise living peaceably in France of diverse intrigues. As Jonathan Sumption has written, “The French government’s fears were by no means absurd. Englishmen living in France did occasionally act as spies and guides.”9 So, too, did Englishmen who for various legitimate reasons were given safe-conducts by the French to carry on diplomatic and related business during the war.10 The same year that Jacquet de Meri was arrested for betraying his countrymen, Bobby the Englishman (Robins l’Engloys) was captured in a boat while trying to reach an English encampment with the information he had gathered.11 Suspected spies could be executed by summary military justice, but they could also be held and tortured in the hope of obtaining information to break up spy rings. Or, like captives of war, they could be spared to deter the other side from taking reprisals on prisoners under the lex talionis or to negotiate ransoms (the promises exacted being ratcheted up by the threat or reality of torture).12 Perhaps best of all, spies who were unmasked (and there were plenty of spies operating on either side13) could be subjected to alternating blandishments and threats that might induce them to play the role of double agents. I do not know what the French expected to get out of Jacquet de Meri by holding him for forty-three days or from Bobby the Englishman by keeping him in custody in the pays d’Auge for 166 days. I do know that English spies—professional and ad hoc—were very much at large in France, that suspicions that they were had a caustic effect on social experience there, and that the French held the English responsible.14
To the French in France the English were mud, dirt, the foamy spittle that gathers at the corners of the mouth (boe, boue[s]).15 Or just “English.” In Valois-held territory in this period, the designation itself was an actionable slander if used by one Frenchman against another. It conjured all the crimes that English troops, either on active duty or temporarily demobilized, committed, were accused of committing, or were thought capable of committing in late medieval France.16 An ugly parallel is the way that the word “Jew,” stereotyping avarice, was used for centuries by Christians to smear other Christians, especially canny merchants, tight-fisted bankers, and hard-bargaining pawnbrokers.
In England the problems of sustaining the exile system in the fourteenth century were multiple. In the periods of hot war, how were authorities supposed to deal with groups of men who had abjured and in earlier times would have been entitled to go into exile but for reasons of advanced age or physical impairment could not now be pardoned to serve in the army? How were the same authorities to handle the women’s cases? Truces came often enough and lasted long enough that recourse could repeatedly be made to a revived if slightly crippled exile system, a fact that explains why one can find cases, diminishing in number, to be sure, of deportation to France in the late fourteenth and early fifteenth century. But the on-again off-again system was in shock from other factors as well.
For one, when the English king laid claim to be king of France, he was in the strange position in his French localities of heading up a wartime territorial (or, as the French would say, occupying) administration which, insofar as it operated at all, should have employed abjuration in appropriate situations to exile men and women to England. But what sense did it make to exile a person from England to France or from France to England, if one and the same ruler was the immediate lord of both? Perhaps the days of abjuration between Normandy and England before 1204, when they shared a common ruler and instances of similar jurisdictional tangles, could have been invoked as precedents. A technical point, however, further complicated the situation in the early phases of the Hundred Years’ War: English writs had to be rewritten, a culturally dreaded task, for it carried the possibility of creating new law without the time-consuming cultivation of consensus through parliamentary assent which was typically required. Any modified or new royal writ now had to specify whether it was issued in the name of the Englishman who was king of England or in that of the same man who invoked his claim to be king of France. And every one of the tiniest features of language had to be adapted so that there were no internal contradictions and no other lack of clarity in the writs. Perhaps this interval of instability in administrative practice—when many mistakes were being made and many means were being devised to correct them and prevent them in the future—did not last long. But it made for confusion, for delays in the exercise of justice and for the inefficient transfer of property in 1346,17 a time when the English crown, thinking that its decisive victory was in sight, was articulating exalted claims of its majesty.
How different the exile system had been in the thirteenth century, how much like a well-oiled machine, even as far as the efficient movement of persons. Shipmen at Dover knew their duty. Officials—the English sergeant and the French authorities—knew theirs at Wissant. But after Wissant as a port was hobbled by the English military assault in the mid-fourteenth century and its harbor permitted to deteriorate, one could ask what obligation shipmen at Dover continued to have to ferry felons across the Channel. Wissant’s partial recovery in the decades after its sacking and burning raised the possibility of greater regularity in transporting abjurers there. This in turn, like the periods of truce alluded to in the previous paragraph, checked the full abandonment of the system of exile in England. But it could not assure its survival, let alone its vibrancy.
Could the obligations of the Dover shipmen be adjusted, with the crown laying responsibility on them to transport exiled felons to English-held Calais or some other port instead of Wissant after the ravage of the latter and the displacement of much of the French village’s seaborne traffic? Perhaps there was some pressure in this regard, but I doubt that it became the Dover shipmen’s recognized duty. The men of the Cinque Ports were prickly about their rights vis-à-vis the crown, as examples of disputes described in chapter 3 demonstrated.18 Katherine Murray associates their liberties consequentially with their “arrogance.”19 Yet, as with other issues, this begs for further research.
An additional obstacle to the establishment of a regular Dover–Calais exile conduit to France was the fact that the movement inland from Calais of those abjurers who disembarked at the port would be resented by natives even in times of truce. The unwalled village “boundaries” of Wissant presumed the expeditious dispersal of abjurers into the hinterland, where Englishmen and women could join other of their exiled countrymen already employed in migrant rural work gangs, brothels, and other vocations. As long as the English held Normandy (to 1204) and had military access to the French royal domain through that province and because there had been no serious coastal military activities near Wissant since 1217, there was never much pressure to wall the village. Calais was less a village and more a town, and once it came into English hands in 1347, its ramparts were augmented. The thick “solid limestone walls” were also protected by towers and well-secured access gates.20 It was not a space that seemed to invite routine dispersal of large numbers of transients. And there were very few English workers of any sort outside the walls anyway, given persistent French suspicions of their presence in the kingdom during the Hundred Years’ War.21 Even those few abjurers to Calais who managed to penetrate the French interior were liable, poor as they were, to be targeted as vagabonds in an economic environment which, because of the dislocations of war and the beginning of the plague cycle, encouraged vicious hostility to vagrants.22
Meanwhile, constriction in the application of the system of extra-regnal abjuration and a steady increase in the number of hiatuses in its use became facts of life. Perhaps the system held on longer where a plausible alternative to France could be designated as an exile destination. Exeter’s abjurers in the late Middle Ages must have emigrated to Ireland,23 and the Cinque Ports and their limbs could facilitate seaborne exile to Scotland. The late medieval collection of customs for Faversham, one of the Cinque Port limbs, indeed, makes specific reference not to France but to Scotland as the abjurers’ destination in those days.24
So what did happen as the exile system withered on the vine, slowly and in spurts, but inexorably? The solution was not regularized until much later. The vast majority of abjurers in the long thirteenth century were men and women who were successful recipients of sanctuary. There were classically two types of sanctuary—general and chartered. All of the discussion until now in this study has been about general sanctuary. Chartered sanctuary was somewhat different. England’s chartered sanctuaries were small territorial units associated usually with major monastic and episcopal churches, such as Westminster Abbey, Battle Abbey, Durham Cathedral, and York Minster, and limited in number to twenty-two, supposedly by the Conqueror but in reality by local custom.25 There, under ostensibly regimented conditions, transgressors who could not pay their debts could live until families or friends discharged those debts. Some inmates never left these asylums, which were akin to villages.26 But chartered sanctuaries classically were not available to felons.
Much as the petit jury system, however—twelve good men and true—got started through administrative innovation in the early thirteenth century by frustrated judges and administrators who could no longer send the accused to ordeals, it may be that coroners with the connivance of sheriffs and judges conceived of the idea of sending abjurers into internal exile to these chartered communities. Long after the fact, this policy was affirmed in 1530, by statute, when general sanctuary was suppressed; it was further justified by the assertion that there were national security reasons to suppress extra-regnal abjuration, including the fact that many able-bodied seamen and potential soldiers among the exiles were thus lost to the military service of the crown.27 The policy was reaffirmed in 1536, also by statute, after the English break with the Roman church.28
The new system inexorably contributed to a documented chorus of criticism that the chartered sanctuaries had become dens of iniquity replete with all manner of criminals, from the least dangerous to the most rapacious.29 The porosity of these communities (they could hardly be called “gated” in our modern terms, even if they had symbolic gates and erect boundary crosses30) transformed them into safe havens for predatory lowlifes, or so the critique ran. The crown’s adoption, confirmation by statute (1529), and regularization of the continental practice of branding abjurers was helpful, I think it is reasonable to suppose, in deterring some of these felons from carrying out criminal acts in the last years of traditional sanctuary with its more frequent exile to Scotland or, later, outside the chartered sanctuaries.31
Let us recall that in thirteenth-century England there was very little expectation that abjurers who disembarked in France, the overwhelming majority of such persons, would ever return to England—and expectations mirrored fact. If branding of abjurers was inflicted at all in England in our period, it had been rare and was therefore of little importance in the overall scheme of things. Innovations in the later Middle Ages—more exile, as suggested by the customs of Faversham, to the far north (from which re-entry into England was relatively easy) than to France or exile to chartered sanctuaries within the realm—constituted another matter entirely. Now the abjurers lived close to or among their own countrymen and women, and their own countrymen and women needed to be satisfied that recidivists would not escape the determinative punishment of execution. The situation now was much more like the continent’s had always been. The new or dramatically increased practice of branding abjurers in England and the statute that regularized it in a sense provided the island kingdom’s crime-fighting arsenal with the time-honored continental answer to illegal return.
Authorities in England opted to brand foreswearers on a finger, a practice that had earlier been mandated by a statute of 1487 for felonious clerics, who were marked on their left hands T or M, thief or murderer, and were then confined to monastic or episcopal prisons.32 In the case of abjurers, the mark was an A for abjurer, but the authorities, concerned lest those so marked cut off the designated finger, inflicted it on the offender’s right-hand thumb. 33 Why the thumb? Knowledgeable about practices across the Channel, English authorities were trying to prevent their abjurers from obtaining second or third opportunities to foreswear by cutting off their branded fingers, as sometimes occurred on the continent. After all, who could prove that the loss was other than accidental? But the likelihood of self-inflicted amputation was drastically reduced by branding a thumb, for the loss was far more consequential. Thumblessness incurred severe diminished utility of the hand even when the digit was removed only down to the first joint. At the second, the decline in utility was and is “disastrous.”34
Severing the right-hand thumb was even more consequential. Societies like that of medieval and early modern England and Europe in general privileged right-handedness. This has long been inferred from the fact that sinister (left-handed) in Middle English and its cognates in the continental vernacular languages signified deceptive, malicious, unlucky, dishonest, and corrupt. Dexter (right-handed), on the contrary, evoked auspiciousness and protective power and might. A dexter (alternative spelling, destrer) was the knight’s steed, always led by the squire on the right side.35 A man who could count on the right hand of God for strength need fear nothing, said a medieval proverb (Nullum formidat / cui robur dextra dei dat).36 So the high biological propensity toward right-handedness in human beings, estimated at 70 to 95 percent in various studies of modern populations,37 would have been complemented in earlier centuries by the social discipline of enforced right-handedness, which is effective if imposed in early childhood. This is why medieval Bretons, to give one illustration, specified that convicted forgers have their right hands severed: almost all, perhaps all, such felons would forever be precluded from resuming their profession.38 Medieval authorities also knew it would be hard for a thief who was branded on his right thumb to sever it and still play the cutpurse.39
Despite the new measures in England, inmates continued to be accused of sneaking out of the chartered sanctuaries to commit crimes on the highways and in the cities, towns, and villages nearby. And they did so or were accused of doing so even though, according to statute (1536) and like extra-regnal abjurers of old who returned without permission, they faced the death penalty if captured outside the precincts.40 Moreover, despite or even because of new methods of government control, such as the branding, many churchmen resented the transformation that chartered sanctuaries underwent de facto and then de jure at the end of the Middle Ages. I raise the possibility of a causal connection, since the criticisms threatened to provoke the government into more and closer oversight of the chartered sanctuaries, with a potential loss to ecclesiastical jurisdiction. Only a few years after Henry VIII’s statute of 1536, a series of hammer blows culminating in a 1540 statute reformed or put the finishing touches to the reform of the chartered sanctuaries, eliminating most, re-siting seven of them, forbidding them to felons, and otherwise restricting them.41 Of course, there was some temporary turning back of the clock under Queen Mary (1553–58), given the “Catholic” character of sanctuary privileges.42 But in time chartered sanctuaries came to constitute simply an alternative—a tenacious alternative, to be sure—to the kingdom’s debtors’ prisons.43 Other services were so inconsequential as to be abolished by statute in 1623.44 And yet abolition did not come soon enough to prevent the influence of the law of sanctuary in watered-down form from jumping the ocean to the English colonies in North America. But that is another story.45
With the abandonment of the internal exile of felons to chartered sanctuaries in England, what “should” have happened was the creation of yet another alternative to extra-regnal exile. New alternatives were devised and old ones sustained in importance, as I note below. What emerged from this, together with the general atrophy of abjuration dating from the Hundred Years’ War, was a precipitous decline in legal foreswearing for both the punitive and merciful purposes it had served in thirteenth-and early fourteenth-century England. One continues to come across occasional references to abjuration of the sort that has been the focus of this book well into the early modern period. Sometimes these references point to archaic usages either unrelated or only marginally related to general sanctuary, which was always, as long as it existed, the chief source of the abjuring population.46 More often, however, these references, in particular the allusions to extra-regnal abjuration, are evidence that the principles behind an obsolete or “decayed” system long remained “good to think with” in the intellectual world of the jurists and the lawyers. What, for instance, could one infer by analogy from now-bygone practices as to the legitimate scope of coroners’ authority, licit community vengeance, or the permitted extent of mercy?47 One is reminded how often and evidently how enjoyable it was for Tudor and early Stuart English lawyers to ruminate on alienage by reference to the legal status of Jews, even though no Jews had resided in England or enjoyed the status since the expulsion of 1290.48
A CONCLUDING WORD
Western societies argue back and forth about the need for the death penalty, sometimes propelled by logic, sometimes by political and social crises. On occasion, indeed, when rage over crime has led to draconian legislation, it was followed quickly by legislative, judicial, or administrative restraint.49 Many Enlightenment thinkers argued more systematically against the “barbarity” of capital punishment,50 but it was not until the close of the eighteenth century that this had the effect they hoped it would. Albion’s Fatal Tree may exaggerate, or so certain critics would allege.51 Yet, there is no reason to doubt that the eighteenth century was witness to an enormous number of executions in Britain after what appears to have been a less regular and widespread use of the punishment in large parts of the seventeenth century.52
Among the moments of crisis that have provoked governments to pass draconian laws, one can count the fear of invasion facing the French revolutionary leaders in the early 1790s. In this period “revolutionary justice,” the climacteric phase as opposed to its preceding idealistic early phase (1789–90), gave rise to the Terror.53 The question is not whether such sanguinary violence—liberty or death—was “necessary.” The authorities at such times certainly argued that it was, the alternative supposedly being the triumph of counterrevolution.54 My point is merely that such crises have often encouraged spikes in the infliction of judicial executions.
Western Christians in the High Middle Ages went through such phases, too. But most of the time in most of their polities, people wished not to—or at least did not—endure such high levels of executions for long. Exile was an available as well as a viable alternative and served many other purposes as well. Sometimes, though less prominently in England, it simply provided an alternative in the litany of prescribed cruel punishments, short of the death penalty, rather than as an alternative to it. At other times—and here England is representative of a universal European usage—it was a form of mercy for thousands of confessed felons who found shelter, metaphorically and literally, in the sanctuary of the church. Yet, at the close of the Middle Ages and at various later points outside of England, long-accustomed applications of exile again temporarily lost their viability either as punishment or mercy.
Traditional—medieval—forms of exile on a large scale having become untenable, the situation vexed rulers as to how to proceed to achieve justice in their lands. In other words, because of the technical impossibility of sustaining the traditional practice of exile, alternative ways needed to be found—some revived out of ancient precedents, some innovative, some tweaking the traditional model—whereby capital punishment was not inflicted with the frequency otherwise mandated by the laws. These included easier or cheaper access to pardons after judicial conviction, galley slavery in the Renaissance Mediterranean, transportation to penal colonies in the British, French, and Portuguese empires, the Siberian exile system under the Romanovs, and long-term and life imprisonment, perhaps at hard labor, in many polities.55 Human beings kill a great many other human beings judicially, and they have been doing so for a long time—but rarely as many as they claim the right to kill. This restraint has typically been permitted by systems of otherwise almost unspeakable harshness.