The Time Traveler's Guide to Medieval England: A Handbook for Visitors to the Fourteenth Century (37 page)

What is the law of the land? Where does it come from? How does anyone know what the letter of the law is? After all, there are relatively few law books to be found, especially outside London, and those there are tend to be old and out of date. While obviously it is a crime for anyone to injure another person physically without reason, or to damage or remove his property, how far can one go in defending oneself? The case of John de Burgh illustrates the problems. John is a five-year-old London boy. One Monday evening in April 1324 he is playing in the house of Richard and Emma de Latthere, his parents’ neighbors. He takes a fancy to a ball of wool belonging to Emma and hides it under his cap. Emma discovers what he has done and chastises him with her right hand on the left side of his face. Such chastisement is perfectly in order, especially in her own home; Emma has done nothing wrong. However, the blow causes some other, unseen damage—probably a hemorrhage in the brain—and the lad dies the next day
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Should Emma face charges? Terrified that she will be accused of murder, she flees, thus compounding her guilt and, by implication, her reputation for involvement in the “crime.” Does she deserve to be hanged, though, when chastisement of this nature is positively encouraged by society, to teach children a sense of right and wrong?

The law of England is basically a compendium of the old laws of the Saxons which have been repeatedly revised and rewritten by the royal judges (or justices) since the Conquest. These same royal judges go out to the county towns and hold trials in those places. It is thus called “the common law” because it is commonly applied to everyone in the kingdom and takes precedence over local customary laws and ordinances. This shows why it is important for local officials to wait for an experienced royal judge to arrive to try their prisoners. Where sheriffs take the law into their own hands, they run the risk of committing a crime themselves.

The common law can only remain relevant if it is adapted to suit changing circumstances. Increasingly it falls to Parliament to initiate changes in outdated laws and introduce new ones. A Member of Parliament who wants the law changed in some way—be he a nobleman, a
prelate, one of the seventy-four representatives of the shires, or a representative of a borough (normally there are about 165 to 185 of these)—must present a petition to the king in Parliament. Some of these petitions will be dismissed by the lords and prelates appointed to consider them, but some form the basis of new legislation.

Many of our most basic laws are written over the course of the fourteenth century. Many are clarifications by Parliament of old customs, such as benefit of clergy, and sanctuary. Some Acts of Parliament, it has to be said, are completely ignored by the people: the repeated attempts to establish a single, universal system of weights and measures is a good example. But a few Acts are of vital importance. For example, there are officially two races—the English and the Normans—until this law of “Englishry” is repealed in 1340. The Act of 1362 which enables people to plead in court in English is a similar milestone in the history of the nation. Some important Acts are still in force in the modern world. The main clauses of the Treason Act of 1351, by which Edward III establishes exactly what constitutes “high treason,” are still on the statute books. One can say the same for Acts forbidding men to come to Parliament armed, and the Act of 1383 forbidding maintenance (where lords protect their criminal retainers). Also still in force in the modern world are an Act of 1331 making it illegal to arrest someone contrary to the terms of the Magna Carta, and an Act of 1381 making it treasonable to begin a riot (passed in the wake of the Peasants’ Revolt). Interestingly, an Act of 1354 is also still in force, making it illegal for a man to be deprived of his lands or property, or executed, without first having had the chance to answer the accusations against him in court. Sadly, recourse to this particular law is normally made posthumously, when an heir is trying to clear his executed father’s name and reclaim his inheritance.

Parliament has another important function besides establishing and confirming new laws: it is the highest court in the land. If a lord is to be tried for a crime, the trial takes place before his peers, in Parliament. Similarly, trials for high treason take place in Parliament. Some of the most dramatic moments of the century are thus to be witnessed at Westminster. On November 26, 1330, the traitor Roger Mortimer, first earl of March, stands bound and gagged before his peers as he is condemned to death for fourteen specified and many unspecified crimes. The process of the trial is that his crimes are “notorious” and
known to all. There is no need for anyone to produce any evidence: he is guilty. He is drawn from the Tower of London to the gallows at Tyburn on a hurdle three days later, stripped, and hanged. If you visit Tyburn at any point over the subsequent two days, you can see his naked body turning in the breeze.

Lord Mortimer is lucky in some respects. The full penalty for treason is to be drawn to the gallows on a hurdle or an oxhide, then to be stripped and hanged until nearly dead, then cut down, disemboweled and emasculated, and finally to be quartered. In the fourteenth century the full penalty is very rarely carried out. Most men who are deemed traitors by Edward II are either killed in battle, beheaded, or hanged like common thieves. In 1305 the Scots patriot and outlaw Sir William Wallace undergoes the full drawing, hanging, disemboweling, and quartering, by order of Edward I. In 1317 the dignified Welsh nobleman Llywelyn Bren is similarly hanged and disemboweled by Hugh, Lord Despenser. His illegal death is avenged in 1326 when Despenser himself suffers the same fate, by order of Lord Mortimer. Despenser is drawn to the place of execution behind four horses, hanged on a gallows fifty feet high, then cut down and eviscerated and emasculated while still alive. His entrails are thrown into a fire. Only then is he decapitated and quartered. By 1400, this gruesome punishment has received an extra tweak for those guilty of the highest treason. The disemboweling takes place
prior
to hanging. In 1399, having been found guilty of witnessing the murder of the king’s uncle at Calais, John Hall is sentenced to be

drawn from Tower Hill to Tyburn Elms, and there disembowelled, and his entrails burnt in front of him, and then hanged, beheaded and quartered, and his head sent to Calais.
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In case you are wondering whether the disembowelment kills him before he is hanged, the answer is no. The executioner ties up his most important tubes so he can live long enough to witness his entrails being burnt.
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And when he is quartered, he really is
quartered:
it is not just a case of chopping off limbs. After his head is cut off, his torso is hacked into four pieces, each with a limb attached. If you go onto London Bridge you can see a stake set up with the quarter of him which was the right-hand side of his chest, rib cage, lung, shoulder, and right arm.
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There are three central royal courts: the Court of the Exchequer, the Court of the King’s Bench, and the Court of Common Pleas. The Court of the Exchequer hears cases concerning financial arrangements with the Crown. The Court of the King’s Bench hears criminal cases and appeals from lesser courts. The Court of Common Pleas is also a court of appeal, but its predominant business is to hear those personal cases in which people are trying to sue each other over debt, theft, fraud, unlawful distrains, and similar offenses.

Most people will never see one of these courts. Their enormous importance lies in the fact that the judges from the King’s Bench and the Court of Common Pleas head out to each county, usually twice a year, to try all the serious cases referred to them from the sheriffs’ tourns and the county courts. These men are thus the principal agents of royal justice in the kingdom.

The commissions under which they try felons and trespassers vary. Every seven years there is supposed to be a commission of general “eyre,” which means the judges must try all unsettled cases. It is a great event when the judges come to town—up to two thousand people attend the 1313-14 Kent sessions.
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More regularly the king issues a commission of
“oyer et terminer”
—to “hear and determine”—all the cases awaiting a verdict in a county. A special form of this commission from 1305 is named “trailbaston.” Another form of commission is that of “assize”: judges travel through the counties on six circuits, trying all the criminals they encounter. Lastly there is the commission of “gaol delivery.” As the name suggests, the purpose of this commission is simply to empty the gaols. In the early part of the century, when the judges of the King’s Bench travel with the king, they hear the cases of all those in the gaols wherever they stop. Those awaiting trial in the sheriff’s lockup suddenly find the judges are coming. They are asked how they wish to acquit themselves. If they plead “not guilty,” the case is heard and a jury is asked to determine the guilt or innocence of the accused. If the jury says they are innocent, they go free. If the jury says they are guilty, they are punished. Over and over again one may see life and death situations come to a dramatic resolution, resulting in either an outpouring of relief or screams of despair as a woman realizes her husband has
been found guilty and sees him dragged off to be hanged at the gallows outside the castle.

As the gaols are filled with thieves and murderers, the sentence passed on these men is usually simply that of hanging. Overall, about a third of all the accused men are executed, the remainder being released. There are few other punishments. It is not unknown for a man to be given life imprisonment: Hugh le Bever of London (whose goods are described in
chapter 7
) is sent to prison for killing his wife, Alice, “there to remain in penance until he should be dead.” But a sentence of life imprisonment like this is very rare. Occasionally, if a woman is convicted of petty treason (the killing of her husband, lord, or employer), she might be burnt alive, but this too is rare. Witches and heretics are generally hanged in England, not burnt. The punishment of burning alive for heresy is not properly introduced until the parliament of 1401. The customary laws in some ancient boroughs demand the loss of a limb for certain crimes. Attacking an alderman of London, for example, can result in the hand which drew the sword or dagger being cut off.
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According to the Charter of the Forest (issued about 1217), poachers should not have their hands cut off, as in the days of King John, but loss of limb is still meted out on their animals. Thus a poacher who escapes with a fine will still see his dog lose a paw. If a horse kills its master, then it should be confiscated as a “deodand” and sold, its value being payable to the Crown. Even a ship can be deemed guilty of murder and confiscated as a deodand, the proceeds of its sale being given to the king to be distributed as alms. Extraordinary though this practice seems, it is at least slightly more rational than the system which prevails in France, where donkeys, pigs, and cows are often tried and hanged for murder, if they happen to kill a child. In 1349 a cow is solemnly burnt at the stake for just such a crime.
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Commissioners or Keepers of the Peace are the forerunners of what we know in the modern world as Justices of the Peace. (Technically they are only justices when they have the power to judge cases.) In 1307 and 1308 Keepers of the Peace are empowered to arrest people on suspicion of felony, and in 1316, in Kent, they are empowered to judge the cases of those they have arrested, so the gaols can be
cleared.
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Although they are appointed by the king, these keepers of the peace are local men. This raises a serious question: should you have local justices? If you do not allow local people to hang felons on a regular basis, the felons get out of control. If you
do,
corruption is unavoidable. Many innocent people will be killed without recourse to the common law.

The gradual breakdown of law and order decides the issue. The last general eyres are commissioned by Roger Mortimer and Queen Isabella in 1328-30. Trailbastons fade out similarly in the following decade. Attempts are made to bolster the authority of the keepers of the peace, but with varying levels of success. Finally, in 1361, Edward III establishes the office of Justice of the Peace. It is stated that JPs are to be “three or four of the most worthy in the county, with some learned in law.” They have the legal powers to restrain peace breakers and rioters, to punish them according to their offenses, to arrest men and women on suspicion of breaking the peace and to imprison them, to ensure suitable sums of money are secured to guarantee the good behavior of suspected persons in future and to try people for their felonies and trespasses in accordance with writs of
oyer et terminer.
This act of 1361 is another of those still partly in force in the modern world.

After 1361 the magistrates’ powers increase steadily. In 1368 they are given supervision of the laws preventing workers from overcharging for their labor. In 1383 they are empowered to arrest vagabonds and vagrants, or to bind them over for large sums of money to ensure their good behavior. They also acquire the responsibility for stamping out the practice of maintenance. In 1388 the numbers of JPs in each county are increased, and it is enacted that they be paid 4s for each day of their sessions. With a payment level twelve times the average working wage and the powers to arrest, imprison, judge, fine, and hang people, the local magistrate becomes a very important person indeed.

A large sum of money—£4,000 in gold, to be precise—is due to be transferred from London to the king at Leicester, a distance of ninety miles. How many men to do you think will be guarding it? Fifty? A hundred? Two hundred? You might be surprised to hear that this
massive treasure is to be guarded by just five archers.
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Your thoughts on this might not differ greatly from those of many criminals in England at the time. However good those five archers are at their job, entrusting such a huge sum to so few men over such a long distance is simply asking for trouble. It is no coincidence that tales of Robin Hood enter popular culture at this time. There are rich pickings to be had from waylaying those with money, and those who can organize a gang to carry out a series of killings and robberies stand in a very good position to obtain considerable sums.