The Customs of Old England

by F. J. Snell

"That a thief be pursued, if necessary. If there be present need, let it be told the hundred men, and let them afterwards make it known to the tithing men and let them all go forth whither God may direct them to their end; let them all do justice on the thief as it was formerly Eadmund's law. And be the ceapgild (i.e., market value) paid to him that owns the chattel; and be the rest divided in two, half to the hundred, half to the lord except men; and let the lord take possession of the men.

"And if any neglect this and deny the judgment of the hundred, and the same be afterwards proved against him, let him pay to the hundred 30 pence; and the second time 60 pence; half to the hundred, half to the lord. If he do it a third time, let him pay ½lb; the 4th time let him lose all that he hath and be an outlaw, unless the King will allow him to remain in the land....

"We have also ordained that if the hundred pursue a track into another hundred, notice be given to the hundred elder, and that he go with them. If he fail to do so let him pay £30 to the King....

"If anyone flinch from justice and escape, let him that hath him in custody pay damages (angild). And if he be accused of having aided the escape, let him clear himself according to the law of the country."

Angild is defined by Maitland as the money compensation which the person who has been wronged is entitled to receive—i.e., damage as distinct from the fine (wite). Here, it is evident, we are on the same ground as in the chapter treating of purgation by oath and the ordeal. When we recollect that the thief had to face the pain and uncertain issue of an ordeal, and that conviction might involve, in addition to the fine, banishment, slavery, or the loss of a foot, we see at once the temptation to abscond, but the disappearance of the accused was not only prejudicial to the accuser, but compromised the person who was responsible for his production. The escaped thief, therefore, was a nuisance, as well as a danger, and, if he remained contumacious, forfeiture of life and property was deemed not too heavy a penalty. If, instead of being a thief, the felon chanced to be a murderer, the inconvenience to the community, in whose midst the crime had been perpetrated, was still greater. One of the laws of Edward the Confessor ordained that if a man were found slain and the slayer could not be found, a fine of 46 marks (£30 13s. 4d.) was to be paid into the Treasury by the township and hundred. The Pipe Rolls contain many instances of payments for murders of which the doers were not taken red-handed, the fines varying in amount. In 14 Henry II. the Sheriff of Devon accounted for 100s. for one murder in Wonford Hundred, 10 marks for several murders in Axminster Hundred, and 20s. for a murder in North Tawton Hundred. Another sum of 20s. was remitted by the village or township of Braunton for peace in respect of a murder committed there.[10]

The position of affairs is thus clear. The murderer was regarded as a member of a corporation, which had to answer for him, and, failing to do so, was liable to a forfeit. The manslayer, therefore, if he did not make his surrender, added to his original offence against an individual or family those of disloyalty and injury to a community; and, accordingly, he became the mark of private or public vengeance, the laws which he had violated and contemned ceasing to afford him protection.

In these circumstances, what was he to do? To judge from the testimony of the ballads and poems before mentioned, his best and usual course was to wend his way to the greenwood and join himself to a band of jovial companions who found themselves in a similar plight to his own. That this course was sometimes adopted is a fair inference from the very existence of these compositions, and is rendered probable by the vast extent of the forests and the sparseness of the population, which these desperadoes might conciliate with a share of the ransom extorted from rich wayfarers. But a homicide who flew to this remedy was not very safe. As an enemy of the established order, he had to perform prodigies of valour, and, once captured, his fate was sealed. Outlaws of this description can hardly have been common, even in the days of Hereward the Wake. The majority of those who came under this denomination were not heroes, and acted quite differently. They threw themselves on the protection of the Church.

"Holy Mother Church, as a kind mother, gathers all into her bosom; and thus each and all, good and bad, who take refuge with her, are protected unhurt under her mantle."

Such was the language of the Synod of Exeter in 1287; and the statutes go on to quote from the provisions of the Legatine Council held under Cardinal Othobon at St. Paul's, London, twenty-one years before, which were the basis of the constitutions adopted in the various dioceses: "If anyone shall drag out from the church or cemetery or cloister the person that has taken refuge there, or prevent his being supplied with necessary food; or shall in a hostile or violent manner carry off property deposited in the aforesaid places, or cause or approve of such carrying off by their followers, or lend their assistance, openly or secretly, to such things being done by those presuming on their aid, counsel, or consent—we bind them ipso facto by the bond of excommunication, from which they shall not be absolved until they have made full compensation to the Church for the wrong suffered."