The Customs of Old England

by F. J. Snell

Hence it is clear that the malefactor had a ready way of evading or postponing the consequences of his crime and refusal to "put himself on his country," for every church was a sanctuary in the sense of affording security to terrified wretches, innocent or guilty. It may be well to recall that outlawry did not date from the commission of the crime or the flight of the criminal; and up to the time of conviction, judgment going by default, the law gave no countenance to his assassination. The rule affirmed by the statute of King Edgar, whereby sentence of outlawry was pronounced only after opportunities had been granted for repentance, continued to be in force all through the Middle Ages. This appears from a note on the proceedings of the Salop Iter of 1293, which states:

"Although one who is appealed of the death of a man, or for other felony, make default at three County Courts, yet at the fourth County Court he may appear, and give mainprize to appear at the fifth County Court; and then, if he do not come, he will be outlawed. And if the appellor abandon the prosecution, the exigend shall tarry until the Eyre; and then he shall be tried (for he may return to the peace if he will) at the suit of the King. And if he will not come, he shall be called at the three County Courts; and if he do not come at the third, he shall be outlawed at the fourth County Court, if he do not come and give mainprize to come at the fifth County Court."

It may be taken for granted that, in the vast majority of instances, this degree of consideration sufficed in the case of any person honestly desiring to take his trial; but circumstances might exist which rendered it impossible for a man to prevent his being outlawed, and then the right of sanctuary might be of the utmost value in staying injustice. That the supposition is not purely imaginary is proved by a remarkable petition of the early part of the reign of Edward I., in which John Brown, scholar of Oxford, states that during his absence at Rome he has been falsely appealed by a Jewess for a Christian child, pursued from county to county, and outlawed; wherefore on his return he was put in prison and he now prays the King's mercy, without which he cannot go to the common law. John Brown, it is clear, did not take sanctuary—probably because he was not apprised of the facts in time; otherwise it would have afforded him all needful security and allowed him a period for reflection as to the wisdom of surrendering or quitting the realm.

The right of sanctuary must have been founded on the principle that the guilt of the fugitive had not been established. Even the ordinary law was laudably sensitive on this point, and care was taken not to prejudice the accused by an apparent assumption of guilt. If a person was charged with murder, the bailiffs were obliged to approach him with white wands as a sign that they had no intention of committing or provoking a breach of the peace. They then summoned him to yield himself to the peace of "our lord the King." If they came in the first instance armed in a warlike manner with swords, etc., it was lawful for him to defend himself, and there is one instance on record in which a man did this, fighting a pitched battle with the bailiffs in the garden of his inn, and being afterwards upheld by the court. If, however, the person would not surrender, when summoned in a peaceable way, force might be employed against him. But the officers had first to find or overtake him; and in this they might be anticipated by those who had suffered injury. Obviously, therefore, the homicide, who had no confidence in the justice of his case, would be well advised in flying without delay to "the bosom of Mother Church."

The refugee was as often as not an habitual criminal, who might have broken out of prison on the eve of execution. Some light on this point is derived from the Northumberland Assize Rolls of the years 1256 and 1279. For instance: "Robertus de Cregling et Jacobus le Escoe', duo extranei, capti fuerunt pro suspicione latrocinii per ballivos Willelmi de Valencia et imprisonati in prisona ejusdem Willelmi apud Rowebyr' (Rothbury). Et predictus Robertus postea evasit de prisona ad ecclesiam de Rowebyr' et cognovit ibi latrocinium et abjuravit regnum coram Willelmo de Baumburg tunc coronatore."

Offenders were obliged to state the nature of the crimes alleged against them, and the Durham register shows that by far the largest number were murderers and homicides. Some claimed the rights of sanctuary for debt, some for stealing horses or cattle and burglary; and others for such crimes as rape, theft, harbouring a thief, escaping from prison, failing to prosecute, and being backward in their accounts. Townships which failed to arrest the criminal before he reached the church, or allowed him to escape after he had taken refuge in it, were fined by the King's Justices, the circumstances proving that the institution was tolerated as a necessary evil by those responsible for the maintenance of law and order—not regarded with favour.

The Thucydidean speech of the Duke of Buckingham on the removal of the Queen of Edward IV., with her younger son, the Duke of York, to the sanctuary of Westminster in 1483, furnishes a searching criticism of the use and abuse of this privilege in the practice of the fifteenth century. Addressing the Privy Council, he is represented to have said:

"And yet will I break no sanctuary; therefore, verily, since the privileges of that place and other like have been of long continued, I am not he that will go about to break them; and in good faith, if they were now to begin, I would not be he that should go about to make them. Yet will I not say nay, but that it is a deed of pity that such men as the sea or their evil debtors have brought in poverty should have some place of liberty to keep their bodies out of the danger of their cruel creditors; and also if the crown happen (as it hath done) to come in question, while either part taketh other for traitors, I like well there be some place of refuge for both. But as for thieves, of which these places be full, and which never fall from the craft after they once fall thereunto, it is a pity that Sanctuary should screen them, and much more man-quellors, whom God bade to take from the altar and kill them, if their murder were wilful; and where it is otherwise there need we not the sanctuaries that God appointed in the old law. For if either necessity, his own defence or misfortune draweth him to that deed, a pardon serveth, which either the law granteth of course, or the King of pity. Then look we now how few Sanctuary men there be whom any favourable necessity compel to go thither; and then see, on the other side, what a sort there be commonly therein of them whom wilful unthriftiness have brought to nought. What rabble of thieves, murderers, and malicious heinous traitors, and that in two places especially; the one the elbow of the city [that of Westminster] and the other [St. Martin's-le-Grand] in the very bowels. I dare well avow it, weigh the good they do with the hurt that cometh of them, and ye shall find it much better to lack both than to have both; and this I say, although they were not abused as they now be, and so long have been that I fear me ever they will be, while men be afraid to set their hands to amend them; as though God and St. Peter were the patrons of ungracious living. Now unthrifts riot and run in debt upon the boldness of these places; yea, and rich men run thither with poor men's goods. There they build, there they spend, and bid their creditors go whistle. Men's wives run thither with their husband's plate, and say they dare not abide with their husbands for beating. Thieves bring thither their stolen goods, and live thereon riotously; there they devise new robberies, and nightly they steal out they rob and rive, kill and come in again, as though those places give them not only a safeguard for the harm they have done, but a licence also to do more."

There is one aspect of the privilege, not mentioned in this balanced judgment, which deserves consideration and that is the inadequacy of the law to assure victims of injustice against oppression. As an instance of the sort which, it may be hoped, was not too common, we may take the following (undated) petition:

"Margery, who was the wife of Thomas Tany, late chivaler of the College of Windsor, & is Executrix of his last will and testament, pleads that whereas on the Thursday ... in the Feast of Corpus Christi in the late insurrection proclamation was made that all who had any right or title to recover any debts or bequests whatsoever should come before the King at the Tower of London and shew their evidence, &c., without delay, she, the s'd Margery, and her eldest son John Thorpe, came with a bill to present to the King for recovery of debts due to her by force of the will & test of her s'd baron & of the judgments given & rendered by three Chancellors of the King; and they had not leisure to present the bill then, but on the morrow, Saturday, delivered the s'd bill to the King in his Wardrobe in London. But forasmuch as the Father in God, the Archb'p of Canterbury, then Chancellor of England and Judge in this, ... had sequestrated all the goods and chattels of Sir William Mugge, then Dean of the said College, escheated into the hands of Walter Almaly, present Dean of the s'd College, commanding by letters patent the s'd Walter, under certain penalties, that no livery should be made until satisfaction had been done to the s'd Margery for the debts due from the said W^m. to the said M. by the said test, and that John de Thorp, younger son of the s'd Marg^t., had received a mandate from the s'd Chancellor to summon the s'd Walter and Sir Richard Metford to appear & answer before the Chancellor, the s'd Sir Walter caused the s'd John Thorp, eldest son of the s'd Margery, to be arrested and kept him in prison for three days, wrongfully and in contempt of the King ... and besides this the s'd Sir Walter caused the s'd John de Thorp, younger son of the s'd, M., to be arrested in Suthwerk by John Chirche, serjeant of London; and while he was under arrest the s'd Walter, of malice prepense, assaulted him, beating him on the head and other parts of the body, which beating & punishment of the body caused his death in the prison of Newgate; where, though he offered repeatedly to find as sureties good and sufficient men of the City of London to offer themselves before the Mayor & Sheriffs of London, to wit, the then mayor, William Walleworth, to be responsible for him, body for body, yet was he not delivered out of prison until he was dead, and moreover the s'd Walter threatened to destroy the s'd Margery as he had destroyed her son, so that she took sanctuary and dared not issue forth for fear of death," etc.