"The Constable's clerk shall write and set in the register the coming and the hour of entering of the appellant, and how he entered the lists on foot; and also the harness of the appellant, and how he is armed, and with how many weapons he entered the lists, and what victuals and other lawful necessaries he bringeth with him. In the same manner shall be done to the defendant.... And the appellant and defendant shall be searched by the Constable and Marshal of their points of arms, otherwise called weapons, that they be vowable without any manner of deceit; and if they be other than reason asketh they shall be taken away, for reason, good faith, and law of arms will suffer no guile nor deceit in so great a deed. And it is to wit that the appellant and defendant may be armed upon their bodies as surely as they will."

Previously it had been said: "And the Constable shall make take heed that none other before or after the appellant or defendant bring more weapons nor victuals other than were assigned by the court." The "points" assigned by the court were the long sword, the short sword, and dagger—no other knife great or small or any other "instrument or engine of point." The combatants had each to swear on the mass-book that they were thus armed, and that they had no stone of virtue nor herb of virtue nor charm nor any other enchantment. Also they were made to take each other by the hand to do all their true power and intent on each other, and make their opponent either yield or give up the ghost. All but two lieutenants of the Constable and two knights were ordered to quit the lists.

The Constable sat in front of the King as his "Vicar general" and regulated the combat. "The Constable schall say w^t y^e voice as foloweth, 'Lessiez lez aler'; that is to say, 'lat them goo and reste awhile'; 'lessiez lez aler & faire leur devoir depdieu'; that is to say, 'lat them goo and doo ther devour i goddes name.' And this seyde eche man schal depte fro bothe pties soo that they may incountre & doo that them semeth best."

From that time forth neither appellant nor defendant might eat or drink without leave and licence of the King; and it was the Constable's duty, in case the King commanded the parties to separate, rest, or abide, for whatever reason, to see that this took place in such a way that they should be in the same "estate and degree" in case the King should order the resumption of the combat. He was also to have good "hearkening and sight," if either spoke to other of yielding or otherwise, for to him and to none other belonged the witness and the record of the words from that time forth.

In this battle, supposed to be on account of treason, he that was convicted and discomfited was disarmed in the lists by command of the Constable, and a corner of the lists broken "in reprove of him." Through this he was drawn out by horse through the lists from the place where he was disarmed to the place of justice, where he was beheaded or hanged—"the which thing appertaineth to the Marshal."

"And if it happen so that the King would take the quarrel in his hand and make them accorded without more fighting, then the Constable taking the one party and the Marshal the other shall lead them before the King, and he showing them his will, the said Constable and Marshal shall lead them to the one part of the lists with all their points and armour as they are found, and having when the King took the quarrel in his hand as is said. And so they shall be led out of the gate of the lists evenly, so that the one go not before the other by no way and nothing, for sen he hath taken the quarrel in his hand, it should be dishonest that either of the parties should have more disworship than the other. Wherefore it hath been said by many ancient men that he that goeth first out of the lists hath the disworship and this as well in cause of treason as in other cause whatsoever it be."

It cannot be repeated too often or too clearly understood that the duel was not exclusively a chivalrous custom, confined to those of high station. Like the ordeal, it was prescribed, as a mode of juridical determination, for burgesses and others, though, as we have shown, equality of rank was postulated in the combatants no less than equality of "points." By way of illustration we may turn to the annals of Leicester, where wager of battle was enforced on the townsmen for the settlement of their disputes. We have seen that knights undertook to bring matters to a conclusion within the space of one hour. Honest burgesses, less expert in the use of lethal weapons, and either less courageous or less callous in taking human life, appear to have shown extremely poor "sport" in their involuntary matches. At Leicester a combat is recorded to have commenced at 6 a.m. and continued till 3 p.m., when it was terminated through one of the parties falling into a pit. The character of the affair and the behaviour of the champions occasioned a great scandal; and the townsmen, in order to prevent a repetition of the incident, engaged to pay the Earl their lord three pence for each house, on condition that the "twenty-four jurors who were in Leicester from ancient times should from that time forward discuss and decide all pleas they might have among themselves."

In London and other chartered towns parties to a quarrel could not be made to fight against their will. The rule was that wager of battle did not lie between two freemen without the consent of both; and a case is on record in which one citizen, having been charged with felony and robbery, offered to defend himself with his body. The appellor declined dereignment by battle, and so it was decided that the accused should be tried by the Middle Law, with eighteen compurgators.

The duel was employed for the determination not only of criminal, but of civil causes, and in such controversies the demandant, whatever his condition, might not engage in the combat himself, but was represented by a champion, who occupied the position of a witness. The claim would be made in some such form as the following:

"I demand against B. one hide of land in such a vill (naming it) as my right and inheritance, of which my father (or grandfather, as it might be) was seised in his demesne as of fee, in the time of Henry I. (or, after the first coronation of the King, as it might be), and from which he received produce to the value of fifty shillings at least (as in corn, hay, and other produce); and this I am ready to prove by my freeman John, or if anything should happen to him, by him or him"—several might be named, though only one might wage battle—"who saw this."

Or the form might conclude: "And this I am ready to prove by my freeman John, whom his father on his death-bed enjoined, by the faith a son owes his father, that if he ever heard of any plea being moved concerning this land, he would dereign (or prove) this, as what his father had seen or heard."

The tenant might then defend himself in person or by deputy at his option. The demandant's champion was not to be a person hired for reward, and if he was convicted of receiving money or vanquished in a duel on the point of right, not only did the demandant lose his suit, but the champion forfeited his legem terrae—that is, he could never act in a similar capacity again—and was fined sixty shillings nomine recreantisae—for cowardice. In the reign of Henry II. these arrangements were modified, and the tenant might put himself on the assise. "The assise," says Glanville, "is a royal benefit conferred on the nation by the prince in his clemency, by the advice of his nobles, as an expedient whereby the lives and interests of his subjects might be preserved, and their property and rights enjoyed, without being any longer obliged to submit to the doubtful chance of the duel. After this the calamity of a violent death, which sometimes happened to champions, might be avoided, as well as the perpetual infamy and disgrace attendant on the vanquished, when he had pronounced the infestum et inverecundum verbum." The horrible word was "creaunt" (or craven).



JUDICIAL

CHAPTER XII

OUTLAWRY

Many of our ancient ballads and lyrics, such as the cycle of Robin Hood and that exquisite love-poem "The Nut-Brown Maid," are based on the custom of outlawry. One of the most charming of these early English productions is "The Tale of Gamelyn," in which we meet with the following passage alluding to the ban:

"Tho were his bonde-men sory and nothing glad, When Gamelyn her lord wolues heed was cried and maad; And sente out of his men, wher they might him fynde, For to seke Gamelyn vnder woode-lynde, To telle him tydinges, how the wynd was went, And al his good reued, and alle his men schent."

The expression "wolf's head" was an old Saxon formula of outlawry, and appears to have originated from the circumstance that a price was set on the fugitive equivalent to that at which a wolf's head was estimated. One of the laws of Edward the Confessor deals with the case of a person who has fled justice, and pronounces: "Si postea repertus fuerit et teneri possit, vivus regi reddatur, vel caput ipsius si se defenderit; lupinum enim caput geret a die utlagacionis sue, quod ab Anglis wlvesheved nominatur. Et hec sententia communis est de omnibus utlagis."

Already we are in possession of the salient facts as regards outlawry. As a rule the outlaw was not banished, as citizens were ostracized at Athens, to secure the State from dangerous rivalries. In other words, they were commonly not men of character and distinction, but just the reverse—persons whose conduct was so destitute of honour as to degrade them, in the eyes of the community, to the level of the worst sort of vermin. And they were treated accordingly. They were held to be unfit to exist as an integral part of the body politic, and either destroyed or, as an alternative, constrained to abjure the realm. The head and front of their offence was not any act of which they might have been guilty. The direct, and, it may be said, the sole, cause of their proscription was refusal to submit to the laws, to accept justice at the hands of their country-men.

This comes out quite distinctly in the legislative enactments of our remote ancestors. Kemble in his "Saxons in England" quotes the following law of King Edgar:

"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 1/2 lb; 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 L30 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 (L30 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."

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.

It has been stated that all churches, parochial, collegiate, and cathedral, were sanctuaries; but there were in different parts of England about thirty supreme sanctuaries, of which Westminster, York, Durham, Glastonbury, Ely, Ripon, and Beverley may be taken as types. They owed this pre-eminence to the possession of relics and stories of miracles wrought by the tutelar saint for the protection of suppliants or the chastisement of those who violated the shrine. The origin of the civil sanction is most obscure. Individual churches attributed their franchise to the favour of ancient kings—Hexham to Ecfrith, King of Northumbria; Ripon and Beverley to Athelstan, and York to Edward the Confessor. Tradition affirms that in primitive times the term of protection at Durham was thirty-seven days and at Beverley thirty days on the first and second occasions, and if the fugitive resorted thither a third time, he had to become serviens ecclesiae imperpetuum. These intimations, if true, point to a process of evolution from small beginnings represented by the three nights' protection to which the sanctuary rights of an ordinary church were limited by the laws of Alfred (887) to the extraordinary privileges which, if we accept Mr. R. H. Forster's conclusions, existed at Durham.

These concerned both the area and the duration of the immunity. At other places the right of sanctuary comprised the precinct as well as the church itself. For instance, at Beverley, the story goes that Athelstan, on his return from a victorious campaign against King Constantine, conferred the privilege on the church of St. John and a portion of the surrounding country. The bounds were indicated by crosses. The base and part of the shaft of one of them is, or was lately, to be seen in a hedge on the road to Skidby. Others were erected at Molescroft, on the road towards Cherry or North Burton, and near Killingwoldgrove, on the Bishop's Burton road. At Durham, however, if we follow Mr. Forster—and he makes out an excellent case—the precinct included the whole of the County Palatine, and the term of protection, instead of being confined to the ordinary period of forty days, was perpetual. At York, Beverley, and Hexham there was what may be termed an outermost precinct and various inner precincts, the relative sanctity of which is shown by the scale of punishments inflicted for violation. In Prior Richard's history of Hexham it is stated that there were at that place four crosses, each of them erected at a distance of one mile from the church, and in a different direction. Anyone who arrested a fugitive within these limits was fined two hundreth, or sixteen pounds. For an arrest "infra villam" the penalty was twofold. If the person were seized "infra muros atrii ecclesiae," it was threefold; and if within the church itself, sixfold, to which was added penance "sicut de sacrilegiis." Supposing, however, that anyone, "vesano spiritu agitatus diabolico ausu quemquam capere praesumpserit in cathedra lapidea juxta altare quam Angli vocant fridstol, id est, cathedram quietudinis vel pacis, vel etiam ad feretrum sanctarum reliquiarum quod est post atlare"—then the crime was botolos (without remedy); no monetary payment could be received as compensation. When Leland was at Beverley, he was shown a frithstool, on which he made the following note: "Haec sedes lapidea Freedstool dicitur, i.e., Pacis Cathedra, ad quam reus perveniens omnimodam habet securitatem." There was a frithstool endowed with similar privileges at York Minster, and another at Durham. Stone seats claimed to be frithstools are still shown at Hexham and Beverley.

Of all the localities which drew to themselves especial distinction as sanctuaries none rivals in antiquarian interest the monastery of Durham. This is because of the existence of an ancient work on the "Rites of Durham," which enters in considerable detail into the ceremonial observed on such occasions, and was received for a long time as authoritative. Recent criticism by Mr. R. H. Forster has rather impaired the credibility of the document. He points out that its professed date is 1593, or more than fifty years after the dissolution of the Priory; and maintains that it is not a first-hand chronicle of events of "the floryshinge tyme" before the suppression of the house, but a compilation based partly on old records and partly on the reminiscences of aged residents.

Nevertheless, the narrative must be considered to possess a high degree of historical value, and is undeniably picturesque. We catch a glimpse of the fugitive "knocking and rapping" at the grim twelfth-century knocker "to have yt opened." We see him "letten in" by "certen men that did lie alwaies in two chambers over the said north church door," and running straightway to the Galilee bell and tolling it. ("In the weste end in the north allie and over the Galleley dour there, in a belfray called the Galleley Steple, did hing iiii goodly great bells.") The work goes on to state that "when the Prior had intelligence thereof, then he dyd send word and command them that they should keape themselves within the sanctuary, that is to saie, within the Church and Churchyard." This was until the official of the convent and witnesses had assembled for the formal admission and registration of the fugitive, which took place in the nave, in the Sacrist's exchequer, which was in the north aisle of the choir or "in domo registrali." The official who presided over the ceremony was commonly the Sacrist, but the duty was sometimes performed by the Chancellor of the Cathedral, the Sub-prior, or a monk qualified as a notary public. As for the witnesses, they might be monks, servants of the convent, clerks, masons employed on the fabric, or they might be friends of the fugitive who had attended him to Durham as a bodyguard. Frequently, however, they were casual onlookers or persons who had flocked out of curiosity to the "show."

On admission, the "grithman" received a gown of black cloth "maid with a cross of yeallowe cloth called St. Cuthbert's Cross, sett on the lefte shoulder of the arme" and was permitted to lie "within the church or saunctuary in a grate ... standing and adjoining unto the Galilei dore on the south side," and "had meite, cost and charge for 37 days." The writer of the book alleges that maintenance was found for fugitives "unto such tyme as the prior and convent could gett them conveyed out of the dioces," but Mr. Forster traverses this statement and adduces documentary evidence to show that, in various instances, "grithmen" were permanently domiciled in the diocese. We have, however, an account of one such "conveyance." A certain Coleon de Wolsyngham, in the year 1487, on retiring from the church, was delivered by the sheriff to the nearest constables, and after that by constables to constables, that he might be conducted to the nearest seaport, there to take shipping and never return. He is stated to have received a white cross made of wood.

Bracton and Britton both state that the criminal could elect his own port, but we generally hear of a port being assigned him by the coroner, and he was required to proceed thither without deviating. A case is on record where "one A. had abjured the King's realm and went a little out of the highway; the menee was raised upon him, and he was taken in the highway, and this was found by the jury." Nobody was suffered to molest the felon on his journey seawards on pain of forfeiting goods and chattels. This part of our subject receives excellent illustration from the customary of the Cinque Ports:

"And when any shall flee into the church or churchyard for felony, claiming thereof the privilege for any action of his life, the head officer of the same liberty, where the said church or churchyard is, with his fellow jurats or coroners of the said liberty, shall come to him and shall ask him the cause of his being there, and if he will not confess felony, he shall be had out of the said sanctuary; and if he will confess felony immediately it shall be entered in record, and his goods and chattels shall be forfeited, and he shall tarry there forty days—or before, if he will, he shall make his abjuration in form following before the head officer, who shall assign to him the port of his passage, and after his abjuration there shall be delivered unto him by the head officer, or his assignees, a cross, and proclamation shall be made that while he be going by the highway towards the port to him assigned, he shall go in the King's peace, and that no man shall grieve him in so doing on pain to forfeit his goods and chattels; and the said felon shall lay his right hand on the book and swear thus:

"'You hear, Mr. Coroner, that I, A. B., a thief, have stolen such a thing, or have killed such a woman, or man, or a child, and am the King's felon; and for that I have done many evil deeds and felonies in this same his land, I do abjure and forswear the lands of the Kings of England, and that I shall haste myself to the port of Dover, which you have given or assigned me; and that I shall not go out of the highway; and if I do, I will that I shall be taken as a thief and the King's felon; and that at the same place I shall tarry but one ebb and flood if I may have passage; and if I cannot have passage in the same place, I shall go every day into the sea to my knees, and above, crying, "Passage for the love of God and King N. his sake;" and if I may not within forty days together, I shall get me again into the church as the King's felon. So God me help, and by this book, according to your judgment.'

"And if a clerk, flying to the church for felony, affirming himself to be a clerk, he shall not abjure the realm, but yielding himself to the laws of the realm, shall enjoy the liberties of the church, and shall be delivered to the ordinary, to be safe kept in the convict prison, according to the laudable custom of the realm of England."

When it became known that a malefactor had taken refuge in a church it was the duty of the authorities to beset the place, and send for the coroner, who parleyed with the person in the manner described in the above recital. From the same account it will be gleaned that the maximum limit allotted to the refugee was ordinarily forty days, after which he would cease to receive sustenance. According to Britton he had forty days after being summoned by the coroner. It will be further observed that the criminal undertook to "hasten" to the port of departure. It is generally stated that forty days were granted him for this purpose, but it is certain that this was not always the case. By the Assize of Clarendon persons of evil repute, who had purged themselves by the ordeal without satisfying their neighbours as to their innocence, were required to quit the realm within eight days:

"The lord King wishes also that those who shall be tried and shall be absolved by the law, if they be of very bad testimony and are publicly and disgracefully defamed by the testimony of many and public men, shall forswear the lands of the King, so that within eight days they shall cross the sea, unless the wind detains them; and with the first wind which they shall have afterwards they shall cross the sea; and they shall not return any more to England unless by the mercy of the lord King; and there, and if they return, shall be outlawed; and, if they return, they shall be taken as outlaws."

The same fate was in store for any felon who deviated from the highway in proceeding to his assigned port. He might not, however, be reserved for judicial execution, being at the mercy of his captors, who could do as they pleased with him. "Some robbers indeed, as well as some thieves, are lawless—outlaws as we usually call them—some not; they become outlaws, or lawless, moreover, when, being lawfully summoned, they do not appear, and are awaited and even sought for during the lawful and fixed terms, and do not present themselves before the law. Of these therefore the chattels and also the lives are known to be in the hands of those who seize them, nor can they for any reason pertain to the King."[11] ("Dialogus de Scaccario," x.).

An outlaw, as such, was incapable of exercising the most ordinary rights—he could not devise, inherit, own, or sell lands or houses. Civilly, he was dead. The only question is whether these disqualifications attached to him as the effects of felony or the resultant outlawry. The point was tested in a case which came before the Common Bench in 1293, and decided by an eminent justice of the period in relation to a certain Geoffrey, who had committed felony, and before this became known had disposed of tenements to one John de Bray. "Inasmuch," said Metingham, "as all those who are of his blood are debarred from demanding through him who committed the felony, in like manner every assign ought to be barred from defending the right to tenements which have come from the hands of felons; and it is found by the Inquest that Geoffrey was seised after the felony was committed. And inasmuch as felony is such a poisonous thing that it spreads poison on every side, the Court adjudges that William [the lord, who had brought a writ of escheat] do recover his seisin, and that John be in mercy for the tortious detinue."

Sanctuary for treason was abolished in 1534, and for crime in 21 Jac. I., but debtors enjoyed the time-honoured immunity, at Whitefriars and elsewhere, till 1697.



URBAN

CHAPTER XIII

BURGHAL INDEPENDENCE

Just as the Universities and the Judiciary were found to have a common link in the Order of the Coif, so we find that the Judiciary and the City were bound each to each by the existence of by-laws, or, as they were termed in a technical sense, "customs." Although, to avoid misapprehension, these "customs" may be styled by-laws, and many of them strictly answer to the description, on the whole they bore a very different relation to the laws of the land from the by-laws of modern corporations, the latter being purely subsidiary, while the former affected the most important issues, and, in the absence of much general legislation, possessed all the validity of statute law.

CUSTOM IN LAW

As there was considerable variation between the customs of different towns and different counties, it became the duty of the Justices on Eyre to investigate what was the custom, with regard to the subject of the plea, in the particular locality, and they gave their decisions accordingly.

Some of these cases are sufficiently amusing, as may be gathered from the following record of a case heard in the Salop Inter of 1292:

"One Adam brought a writ of Entry against B.—B.: 'Sir, we vouch to warranty, &c, W. de C., who is under age, to be summoned, &c.'—C. came and prayed his age.—Spigornel (for Adam): 'Sir, according to the custom of the town, he is of age when he knows how to count up to twelve pence, and he shall answer in a writ of Right at that age; and inasmuch as he would answer in a writ of Right at that age, he shall warrant at that age, or shall counterplead, &c. But now he is nineteen years old, which is nearly of full age. Judgment if he shall not warrant or counterplead.' Judgment that he should."

From the same Year-Book we obtain an insight into the working of what may be termed communal law in the weighty matter of succession. One Isabel brought the Novel Disseisin against a chaplain named Martin de Hereford and others for a tenement in Shrewsbury. The defence was that Martin had entered by the devise of one William Silke, and that the custom of the town permitted a man on his death-bed to devise tenements of his own purchase. Isabel's counsel, on the other hand, contended that William's father held the tenements by the law of England, and that William merely purchased the freehold, arguing also that the devise was made in contravention of the statute (7 Ed. I., st. 27), since it was made in mortmain for the beneficiaries to chant for him and his heirs for ever. The Judge ruled that alienation contrary to the statute was no justification for the heir to enter; and he drew attention to the inconsistency of counsel in pleading that Silke could not devise his inheritance, and that he could devise if there were no infraction of the statute. Counsel thereupon elected to abide by his first contention, and the question of fact was referred to the Assise (or Jury) which found that part of the tenements were in William's seisin and that William had purchased his father's estate therein.

We now come to the concluding passages of this highly interesting suit:

"Berewyke [the Judge]: 'For that he could not purchase his own heritage so that it could be styled his own purchase; and he devised the tenements; and the custom of the town does not permit a man to devise his heritage; Therefore this Court adjudges that Sybil (sic) do recover her seisin of the tenements which were not devisable. Now what say you as to the remainder?'

"The Assise said that the remainder of the tenements were of his own purchase from several persons in the town, and that in his last illness he devised them to Martin for the term of his life, and that the testament was proved at the Guildhall according to the custom of the town; and that the executors were commanded to deliver seisin to Martin, and that according to the custom he had the seisin, &c.

"Berewyke: 'Since it is found that he entered on the tenements according to the custom, &c.—although you were seised for four weeks, yet that ought not to give you a title—this Court adjudges that you do take nothing by the writ, &c. After Martin's death be well advised.'"

Communal law, however, was not allowed to override the law of England.[12] This principle was asserted in 1293, when Thomas le Chamberleyn brought a writ before the Common Bench against a certain W., who, he complained, had taken his horse in the highway in the town of Bernewell. The writ ran—"took in the highway and still keeps impounded." There was the usual wrangle between counsel, and an attempt was made to oust or invalidate the writ by asserting that six years and a half before it (the writ) was purchased the animal had been surrendered. After this preliminary fencing counsel for the defence produced his real case, which was that by the King's charter the burgesses of Cambridge had a franchise to this extent, that when clerks or other persons were in debt they might seize their horses or other property within the liberty; and as Thomas was bound in so many shillings, his horse was seized according to the custom of the town, and in no other way. The trespass being admitted, the Judge (Gislingham) proceeded to give judgment on the plea of justification. He said:

"For that it is against the common law and against the statutes to make such a taking in the highway unless he be the King's bailiff, notwithstanding any franchise which the King may have granted, therefore the Court adjudges that Thomas do recover his damages, and that W. be in mercy for his tortious taking."

This leads to another point. Corporations had their local courts, and some of them, by virtue of this fact, claimed exemption from the jurisdiction of the higher courts. Such was the case at Liverpool, and according to Sir. F. A. Picton there are instances on record in which they succeeded in establishing their claim. How far these local authorities were fit to be entrusted with the execution of justice may be estimated by some lively incidents which took place in the early days of October, 1565. One Thomas Johnson had been apprehended for picking purses. Apparently he underwent no regular trial, but was dealt with summarily, the programme being as follows: First, he was imprisoned several days and nights, and then he was nailed by the ear to a post at the flesh-shambles. As the next item, he was turned out naked from the middle upwards, and many boys, with withy rods, whipped him out of the town. He was then locked to a clog with an iron chain and horseblock until the Friday morning following, and finally abjured the town before the Mayor and Bailiffs, at the same time making restitution of 6s. 8d. to the wife of one Henry Myln. Thus, there was a rude efficacy in the process, but it might perhaps have been received as sufficient ground for a writ of certiorari if Johnson had again fallen into the hands of his tormentors.

It is certain that at times towns had to answer, through their officers, for alleged acts of illegality in their corporate capacity. Thus in 1292 one Adam—the reader will observe that the records do not give the actual names, Adam being chosen as beginning with the first letter of the alphabet—brought the Replegiare against B., &c., stating that B., &c., had tortiously taken his chattels in the High Street of the Town of Gloucester and conveyed them to their toll booth in the same town. B. and C., the bailiffs, defended the seizure, asserting that by the custom of the town of Gloucester only freemen might cut cloth there—strangers might sell cloth by the piece, but not cut it.

Adam was not a freeman of the town, but, in opposition to the custom, he had come and cut his cloth. As against this Adam produced a charter witnessing that the King had granted him the right of cutting cloth in the same way as other freemen, and, by virtue of the charter, he maintained that he had been seised from time whereof, &c. The bailiffs repudiated this claim. We do not learn what the judgment was in this case, but the phrase "other freemen" is suspicious. It suggests that the charter had been granted in ignorance of the custom of this particular town, not out of disrespect for it, since the tendency of all the evidence is to show that local autonomy and local privileges in such matters were treated with infinite care. It almost appears as if Adam had taken advantage of an ambiguity. As regards ordinary civil rights Adam was doubtless a freeman—otherwise he could not have brought this action—but he was not a freeman in the sense that he paid scot and lot in the town of Gloucester.

Such persons were often styled "foreigners," and therefore the plaintiff in this case would have occupied precisely the same position as "foreign" merchants who transgressed the customs of London. One of these was that they were not to attend any market or fair at a greater distance than three miles from the City, nor had Justices or Sheriff power to give them leave to do so. If a Sheriff caught any "foreign" merchant beyond those bounds, he was supposed to bring him back, and the money found on his person having been confiscated was shared between the Sheriff and the citizens. If, however, the citizens were alone responsible for the capture, the whole of the money went to them. Other rules were that merchants repairing to London for the sale of linen, cloth and wool might do business only on three days of the week (Mondays, Tuesdays, and Wednesdays). They were then, if anything remained to be sold, to pack up their goods and wait till the following week; and in no case were they to sell ad detail (retail).

A custom which we meet with at Dover and Reading, and was probably adopted by other towns, is one described in sundry ordinances de stachia, the latter being barbarous Latin for "stake." This was a device for recovering possession of a tenement after a specified time, when the tenant had fallen into arrears of rent, and consisted in the landlord erecting a stake in front of the house as a notification of his claim.

CROWN AND TOWN

Despite identity of usage at Dover and Reading on the subject of the stake, it would be pardonable to conclude that in those times of difficult communication there existed a great diversity of burghal laws, entailing considerable inconvenience and hardship, especially in the case of those engaged in trade. Since the adoption or growth of customs depended on the interests or sentiments of particular communities, diversity was, to some extent, inevitable, but the tendency to local independence—an independence tenaciously maintained and jealously guarded—was tempered by counter-tendencies. Thus it was not always to the interest of a town or city to stand in complete isolation from centres of a similar type, or possibly of a superior organization; and, in such instances, a smaller, weaker, less perfectly developed community might seek to improve its status or fortune by modelling its arrangements on those of a more advanced and more powerful neighbour, and in addition to and as a corollary of this, enter into a formal or informal alliance with it, in which the latter would hold the position of protector or patron.

In the Middle Ages there subsisted between the towns and the feudal aristocracy an antagonism sometimes silent and slumbering, sometimes wakened into fierce consciousness and expressing itself not only in hardy words, but in sanguinary deeds. On the Continent the towns were the hotbeds of revolution, and the commune, with its mayor as figure-head, signalized the triumph of the insurrectionary temper. This state of things was more marked on the Continent than in England, where the Barons led the assault on tyranny, and where, for his own purposes, the monarch fostered the prosperity of towns of his own planting. But Mr. J. H. Round, in his singularly able article on "The Origin of the Mayoralty of London," contributed to the "Archaeological Journal," shows conclusively that this institution, now the aegis of all that is staid, stable, and respectable, was the offspring of the spirit of revolt which spread like a contagion from Italy to France, Germany, and the Low Countries, and thence to the Thames.

Dr. Gross's valuable contribution to the "Antiquary" (1885), treating of the affiliation of towns, is of a general character, and illustrated largely by continental examples; anyone, however, who wishes to grasp the full significance of mediaeval relationships as between town and town, will be well advised in consulting that succinct account. Here we must confine ourselves to English experience, in which the same traits appear, only more faintly. Before proceeding to this inquiry it may not be amiss to advert briefly to another aspect of the subject. We have said above that, in England, the monarch inclined to favour certain towns for his own purposes, and such towns were naturally of the highest precedence. If we turn to Liverpool, we shall find that in 1206 it received a visit from King John, who the following year issued letters patent of which the following is a translation:

"John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to all his liegemen who would desire to have burgages at the town of Liverpool, greeting. Know ye that we have granted to all who may take burgages at Liverpool that they may have all the liberties and free customs in the town of Liverpool which any free borough on the sea has in our land; and therefore we command that securely, and in our peace, you may come to receive and occupy our burgages. And in testimony thereof we transmit to you these our letters patent. Witness, Simon de Pateshill, at Winchester, the 28th day of August in the ninth year of our reign."

At a later period the people of Liverpool might not have thanked the Crown for facilitating the settlement of a large body of strangers in their midst. Everywhere burgesses were strongly opposed to the colonization of their towns by "upland men," less on sentimental grounds than from the fact that these "foreigners" frequently did not take steps to become naturalized and pay scot and lot towards communal expenses. Clearly this objection did not apply to Liverpool in this instance, and at that relatively early stage of its history the incorporation of a number of well-to-do and industrious immigrants might naturally have been hailed as a gain. It must have been so regarded by the King.

Liverpool was the port of embarkation for troops sailing to Ireland, and is said to have owed its foundation to this circumstance in the days of Strongbow. The advantage of a numerous, loyal, and able-bodied population was seen in 1573, when the Earl of Essex passed through the place on his way to Ireland. It happened that he left behind him a detachment of soldiers, and the "motley coats" and "blue coats," having quarrelled, used their weapons on each other. With admirable promptitude, the Mayor summoned the trained bands, and the rest of the story may be told in the vivacious language of a contemporary:

"Mr. Mayor and all the town suddenly, as pleased God Almighty, were ready upon the heath, every man with their best weapons; so as by good chance every householder being at home, Sunday morning, eager as lions, made show almost even like to the number of the captains and all their soldiers.... After the battle array [which was efficacious in staying the conflict] Mr. Captain showed all gentleness and courtesy to the Mayor, and came up to the town in friendship and amity."

Trained bands formed part of the equipment of a well-appointed mediaeval town—a description to which, as we shall show, Liverpool possessed exceptional claims. But the Crown did not benefit solely in this way. The burgages erected numbered 168, each of which paid a ground rent of one shilling per annum into the royal exchequer. The custom dues of the Duchy of Lancaster were another source of profit, and retainers of the King were occasionally quartered on them. Thus in 1372 one Rankyn, a follower of John of Gaunt, was retained on condition that he "in time of peace shall be at board at court ... and that he shall have and take for the term of his life, in the whole, twenty-five marks sterling from the farm of the town of Liverpool."

The object of all towns was to acquire the fullest measure of self-government, and in this respect, despite probable exactions arising from the system of fee-farm leases, Liverpool must be reckoned extraordinarily fortunate. The term "commune" also—word of sinister import since 1871, but used in mediaeval England in the innocuous sense of "borough"—seems to have special point in reference to the trading regulations of that ancient port, if compared with the greater individualism of other places, though commercial transactions were universally the subject of manifold restrictions designed to protect the interests of the native against the intrusive and vexatious rivalry of the foreigner. At Liverpool matters went far beyond that.

The Corporation itself for a long time farmed the custom dues, and also levied tolls on, all merchandise that passed through the port. Much land and other property belonged to it, as well as the ecclesiastical patronage, which included the appointment and dismissal of incumbents, wardens, and other church officers. The hanse, composed of the entire body of freemen and burgesses, required that all produce, upon importation, should be first offered to it, and it was then inspected by "prizers" or appraisers, who gave an estimate of its value. If the importers did not care to sell at the price, they had to haggle with the town respecting the sum to be paid for leave to sell in the open market; and any merchant or trader who treated with them on his own account was liable to heavy penalties.[13]

We have previously given a sample of original methods of administering justice at Liverpool, and much might be written of its curious penal code, which embraced such offences as eavesdropping. Hence the protest embodied in the following presentment of the Grand Jury on March 31, 1651, may well express the inner thought of many preceding generations of culprits:

"Item, wee p'sent William Mee for saying and cursing in the court, pointing His finger towards Mr. Mayor and the Jurie, 'If such men as those can give anie judgment, the Divell goe with you and all the acts you have done.' Amerced in five pounds."

We need not recur to the topic of trained bands, and will only remark that in this and other respects Liverpool obtained a degree of self-sufficiency and independence surpassing anything known at the present time, and, apparently, far beyond the common standard even of mediaeval towns. It might therefore have stood forth as an object not so much of envy as of imitation. In point of fact, Liverpool—owing, no doubt, to its comparatively late rise and geographical situation—was not one of those towns whose customs were widely copied. In Wales the custom of Hereford held the field, and in the south-west the custom of Winchester, which, through transmission to Newcastle, prevailed also in Northumberland and Scotland. The customs of York and the Cinque Ports attracted smaller groups, while the custom of London was not only mother of the custom of Oxford, but grandmother of the custom of Bedford, since the citizens of Oxford were called in by the last-named town to adjudicate on obscure points, and they themselves repaired to London, as the fountain-head, in the event of any internal dispute. The court of appeal, when mother and daughter towns were at variance on the subject of privileges, was the King and Council.

In England the powers of the mother-town were purely advisory, whereas on the Continent some towns appear to have exercised coercive jurisdiction over those whose laws were derived from them. Perhaps this circumstance, that the process was one of adoption rather than subjection, was the chief reason why English towns were so careful not to communicate their privileges, at any rate freely, to boroughs of servile condition, i.e., those which owed service to some lord. The case of Hereford is thus stated:

"The King's cittizens of Hereford, who have the custodye of his citty (in regard that it is the principall citty of all the market townes from the sea even unto the boundes of the Seaverne) ought of ancient usage to deliver their lawes and customes to such townes, when need requires, yet in this case they are in noe wise bound to do it, because they say they are not of the same condition; for there are some townes which hould of our Lord the Kinge of England and his heires without any mesne Lord; and to such we are bound, when and as often as need shall be, to certifie of our lawes and customes, chiefly because we hold by one and the same tenure; and nothing shall be taken of them in the name of a reward, except only by our common towne clerke, for the wryting and his paynes, as they can agree. But there are other markett townes which hold of diverse lords of the Kingdome, wherein are both natives and rusticks of auncient tyme, who paie to their lord corporall services of diverse kinds, with other services that are not used among us, and who may be expelled out of those townes by their lords, and may not inhabit in them or be restored to their former state, but by the common law of England. And chiefly those and others that hold by such forreine service in such townes, are not of our condition; neither shall they have our lawes and customes but by way of purchase, to be performed to our capitall-bailiff, as they can agree between them, at the pleasure and to the benefitt of the citty aforesaid."

Towns were extremely jealous of their purity in this respect, a fact which may be illustrated in another way. Thus no person of servile condition was allowed to be a freeman of the city of London. If, after admission, he was ascertained to be of such condition, he forfeited his rights. During the mayoralty of John Blount, Thomas le Bedelle, Robert le Bedelle, Alan Undirwoode, and Edmund May, butchers, lost their franchises, because they acknowledged that they held land in villeinage of the Bishop of London and dwelt outside the liberty. On July 18, 11 Rich. II., it was ordained that no one should be enrolled as an apprentice or received into the freedom of the city by way of apprenticeship unless he first swore that he was a freeman and not a native, and whoever should be thereafter received into the freedom of the said city by purchase or any way but by apprenticeship should make the same oath, and also find six honest men to undertake for him as had been wont to be done of old.

"And if it happen that such native be admitted by false suggestion without the knowledge of the Chamberlain, as soon as the circumstance is notorious to the Mayor and Aldermen, let him lose the freedom of the city and pay a fine for his deception, at the discretion of the Mayor and Aldermen.

"Again, if it happen in the future that such native, at the time of whose birth his father was a native, be elected to a judicial office of the City such as Alderman, Sheriff, or Mayor, unless he notify to the Mayor and Aldermen concerning the servile condition before he receive that office, he shall pay to the Chamberlain for the use of the City one hundred pounds, and nevertheless shall lose his freedom as aforesaid."

A PARADISE OF POLICE

Thus the fundamental principle of freedom, in all corporate towns, was independence of the feudal aristocracy, and along with this went a sense of social superiority relatively to those dependent upon, and subject to, lords of fees. Burgesses claimed to be masters in their own house and acted in concert with an eye to the common good. This led to the growth or institution of customs divisible into two main categories. One of these was concerned with the correction of refractory or immoral persons dwelling within the gates; and the other with the regulation of commerce. These categories were not entirely divorced, since the infraction of trade ordinances was visited with something more than mere obloquy. On the other hand, the presence of evil livers, though it had no immediate bearing on commerce, added nothing to the security, prosperity, and reputation of the town or city. The customs of London form too large a subject to receive adequate treatment here, but in what remains of our space we propose to limit ourselves to them alone.

It would be possible to write at considerable length on the position of aliens in mediaeval London, and, incidentally, on the charming festival of the Pui, wherewith they consoled themselves for the many hardships and restrictions inflicted on them by the jealous citizens, examples of which have been previously given. Reserving this topic for another occasion, we will glance at certain enactments with which innkeepers and their congeners found their avocations fenced about. The citizens did not welcome the appearance of casual strangers, any more than the presumption of the foreigner who came and settled amongst them. Almost of necessity the former class resorted for food and shelter to the public-houses, which were of two kinds—the inns kept by hostelers, and the lodging-houses kept by herbergeours. These places of resort were supplemented by cook-shops answering to our modern restaurants.

In the time of Edward I. an ordinance was passed that "No Portuguese or Germans shall keep hostels, but that persons of those countries shall lodge with freemen of the city." It has been supposed that by "freemen" are intended native freemen, but this is doubtful, since cases occur of strangers and foreigners being admitted to the freedom for the very purpose of becoming hostelers and herbergeours. Even when this privilege was granted them, they were not suffered to compete on equal terms with the Englishman, being required to keep their houses "in the heart of the City," and rigidly excluded from the more profitable regions on the banks of the Thames.

The necessity of hostelers and herbergeours being freemen was due apparently to the survival of the old Saxon law of frank-pledge, which was still in force at the close of the reign of Edward III. No hosteler or herbergeour might entertain a stranger longer than a day and a night, unless he undertook to answer for his guest's behaviour, and he was left in no uncertainty as to the course of conduct he was expected to pursue towards the always undesirable alien. In many respects his position resembled that of a master of a workhouse rather than a speculative tradesman. Thus, at times when it was forbidden to carry arms in the City, it became his duty to take possession of his guests' arms and retain them until the strangers departed. If the latter did not comply with his demand, they were fined and imprisoned. At other times, when the regulations were not so severe, he had to tell his guests that they were not to carry arms after curfew rang, or go wandering about the streets of the City. Should it happen that urgent business compelled a guest to be absent from the hostel for a night, the keeper was obliged to warn him, with the best grace he might, that he must take care to be back as soon as possible.

Obviously there would have been much unfairness in making hostelers and herbergeours answer for the misdeeds of persons with whom they had only transient relations, if there had been no system for preventing the escape of dishonest and desperate characters who would be especially susceptible to the attractions of a great city and could not be held in check by the fatherly admonitions of an anxious host. Nor, again, was it to be supposed that the native population consisted wholly of highly moral and virtuous persons, incapable of such low crimes as burglary. To counteract the designs of these enemies of order, it was enacted temp. Edward I. that barriers and chains should be placed across the streets of the City and "more especially towards the water (Fleet River) near the Friars Preachers." From the same reign also dates an ordinance that the Aldermen and men of the respective wards should keep watch and ward on horseback at night, each Alderman keeping three horses for that object. Moreover, each of the City gates was placed in charge of a Sergeant-at-arms, who had his quarters over the gateway. It was the duty of this official to keep guard by night, and he was assisted in this task by a watchman (wayte), whose wages he had to pay out of his own salary. The regulations of the City required that each gate should be kept in the daytime by two men, well armed; and on certain occasions the Bedel received orders to summon the men of the ward to watch the gate armed. If they did not attend in person, they had to find substitutes at their own expense.

One of the grandest spectacles in Old London was that of the Marching Watch on St. John's Day. Comprised in it were about two thousand men, some mounted, others on foot. There were "demilances" riding on great horses; gunners with harquebuses and wheel-locks; archers in white coats, bearing bent bows and sheafs of arrows; pikemen in bright corslets; and bill-men with aprons of mail. There was likewise a cresset train numbering nearly two thousand men. Each cresset—flaming rope, soaked in pitch, in an iron frame held aloft on a shaft—was carried by one man and served by another. Very imposing were the Constables of the Watch, with their glittering armour and gold chains, each preceded by his minstrel and followed by his henchman, and with his cresset bearer by his side. Then came the City waits (musicians) and the morris dancers—Robin Hood, Maid Marian, and the rest; after whom appeared the Mayor, with his sword bearer, henchmen, footmen, and giants, followed by the Sheriffs. All the windows facing the street stood open, and there was no lack of distinguished spectators. To quote Nicols:

Kings, great peers, and many a noble dame, Whose bright, pearl-glittering robes did mock the flame Of the night's burning lights, did sit to see How every senator, in his degree, Adorn'd with shining gold and purple weeds, And stately mounted on rich trapped steed, Their guard attending, through the streets did ride Before their foot-bands, graced with glittering pride Of rich gilt arms, whose glory did present A sunshine to the eye, as if it meant Amongst the cresset lights shot up on high To chase dark night for ever from the sky.

By the Setting of the Watch on Midsummer Eve appears to have been meant the stationing of these armed guards in various parts of the City, which they were to secure from harm on that night only. In the thirty-first year of his reign Henry VIII. abolished the Marching Watch, and substituted for it a permanent watch maintained out of the funds which had previously gone to support the great annual pageant. For harnessed constables Londoners now had watchmen equipped with lanthorn and halberd, whose duty it was to call upon the sleeping citizens to hang out their lights, as required on dark wintry nights:

Lanthorn and a whole candle light. Hang out your lights! Hear!

The next thing to be added was a bell. This institution was not popular with all; and Dekker, satirically expressing the feeling of the malcontents, defined the bell as "the child of darkness, a common night-walker, a man that had no man to wait upon him, but only a dog; one that was a disordered person, and at midnight would beat at men's doors, bidding them (in mere mockery) to look to their candles, when they themselves were in their dead sleeps."

Milton, on the other hand, makes grateful mention of the salutation as a lullaby and prophylactic:

Far from all resort of mirth, Save the cricket on the hearth Or the bellman's drowsy charm To bless the doors from nightly harm.

Having said something of the means employed to prevent crime and arrest criminals, we must go on to refer to the punishments in vogue in the event of conviction. And here it may be observed that, among other interferences with commerce and the liberty of the subject, hostelers were not allowed to make either bread or beer. The former they were compelled by public enactment to buy from the baker, and the latter from the brewer or brewster (female brewer). But the City, if it defended what was esteemed the legitimate claim of the baker to a proper livelihood, was equally solicitous for the welfare of his customers, and woe betide the baker who sold bread deficient in weight or quality! For the first offence he was drawn on a hurdle from the Guildhall through the principal streets, which would be thronged with people and foul with traffic, and hanging from his neck was the guilty loaf. In the Record-room at the Guildhall is an Assisa Panis containing a pen-and-ink sketch of the ceremony, from which it appears that the unhappy tradesman wore neither shoes nor stockings and had his arms strapped to his sides. It seems also that the hurdle was drawn by two horses, which suggests that it was rattled along at an inconsiderate pace. For the second offence the baker was again conveyed on a hurdle "through the great streets of Chepe," and he further underwent an hour's exposure in the pillory, probably erected in Cheapside, with what consequences may be imagined. If he proved so incorrigible as to commit the offence a third time, the hurdle was again requisitioned, but, public patience being exhausted, his oven was demolished and he was forced to abjure his trade of baker in the City for ever. From the reign of Edward II. the penalty of the hurdle was no longer imposed for the first offence, the pillory being employed instead.

Exposure in the pillory was a favourite prescription, a kind of judicial panacea, to which all sorts of the morally infirm were introduced in turn. Mr. Riley has compiled a list of the sins atoned for by such involuntary penance, which, if we were guided by that alone, would testify to a shocking state of depravity in the Metropolis. Culling from this catalogue, we find that the pillory was considered a fitting reward for various impostures: pretending to be a holy hermit; pretending to be the son of the Earl of Ormond; pretending to be a physician; pretending to be the summoner of the Archbishop of Canterbury and so summoning the Prioress of Clerkenwell; pretending to be one of the Sheriff's sergeants and meeting the bakers of Stratford and arresting them with a view to fradulently extorting a fine, etc., etc. Scandalum magnatum also merited the pillory—a fact brought home to an idle gossip who occupied that uneasy elevation for "telling lies" about the famous Mayor, William Walworth. "Telling lies" of John Tremayne the Recorder was, in the same way, held to justify a public exhibition of the impudent and imprudent person. So, too, anti-social forestalling.

There were cases, however, in which this common method of advertising paltry offences was thought not to involve an adequate degree of notoriety and reprobation. We have already adduced one instance—that of the unscrupulous baker—in which it was attempted to evoke superior indignation. There were others. The natural destiny of impostors was, as we have seen, the pillory; among the qualifications for this shadow of crucifixion being "pretending to be a physician."

The civic fathers endeavoured to cope with the "social evil" by drenching all engaged in immoral traffic with nauseous doses of public ridicule. Thus, if a man were convicted of keeping a house of ill-fame, immediately his hair and beard were shaved off, save for a fringe (liste) on his head two inches in breadth. He was then conveyed to the pillory, accompanied by minstrels, and there he had to abide at the discretion of the Mayor and Aldermen. If he was found guilty of the offence a third time, he was compelled to abjure the City.

A woman convicted of being a common night-walker was committed to prison—probably the Tun, on Cornhill—and thence she was led to Aldgate with a hood of rayed cloth on her head and a white wand in her hand. Next she was escorted by musicians to the thewe (pillory)—in Cheap, probably—and there the character of her offence was proclaimed. Finally, she was taken through Cheap and Newgate to "Cokkeslane" without the walls, where she was required to dwell. If guilty a third time, her hair was cropped close, while she stood in the pillory, and she was marched to one of the gates and made to abjure the City for the remainder of her life. A procurer or procuress was also set in the thewe to the accompaniment of music, with a "distaf with towen"—i.e., a distaff dressed with flax—in his or her hand; and the transgressor was made to serve as a public spectacle for such time as the Mayor and Aldermen deemed fit. A priest detected in the company of a loose female, if she were single, was conveyed to the Tun, attended by musicians; and upon a third conviction he was forced to abjure the City for ever, the woman meanwhile being taken to one of the Sheriff's Counters and thence to the Tun. If his partner in guilt chanced to be married, both of them were conducted to one of the Counters, or to Newgate, and after that to the Guildhall; and in the event of conviction they were removed to Newgate, where their heads were shaved like those of thieves. This done, they were led with the inevitable music through Cheap, and lastly incarcerated in the Tun during the pleasure of the Mayor and Aldermen. The same procedure was observed if the male offender was a married layman.

Incidentally in the course of the narrative we have mentioned various instances of interference with business. We may conclude the chapter by citing a few more, and, as we have spoken of bakers, illustrations may be drawn from that trade. Every baker dwelling within the walls was obliged to have his own seal for impressing the loaves, and these seals were periodically inspected by the Alderman of the Ward, who kept a counterpart of the impression. A baker might not sell bread "before his oven" or in any secret place—only in the King's markets; and to every baker was assigned his market, to which the bread was carried in baskets hence called panniers. "Panyers Alley," in Newgate Street, was a famous stand for bakers' boys. Bread was sold also by female hucksters or regratresses, who received it from the bakers and delivered it from house to house. They were allowed to have thirteen batches for twelve, which is the origin of the phrase "baker's dozen," and the extra batch represented their legitimate profit; but a practice grew up whereby they obtained sixpence on Monday mornings as estrene, and threepence on Fridays as "curtasie money." This was disallowed by ordinance on pain of amercement, and bakers were admonished, in lieu of such payments, to increase the size of the loaf "to the profit of the public."



URBAN

CHAPTER XIV

THE BANNER OF ST. PAUL

Blount's "Ancient Tenures," a meritorious seventeenth-century work which has been edited by Mr. W. C. Hazlitt, contains a description of the military and civil functions performed, and the privileges enjoyed, by the house of Fitzwalter, in connexion with the City of London. The latter stand in close relation to the subject with which we have just dealt, but it will be convenient to discuss first the obligations and then the "liberties" annexed to their observance. By way of preface we may recapitulate what Blount, who obtained his account from Dugdale, has recorded, and, having done so, we will proceed to investigate and amplify his version of what is beyond question an important chapter in the early administration of the city.

Confining ourselves to the facts as there stated, we find that the duty of providing for the safety of London devolved on the hereditary castellans, the Fitzwalters, Lords of Wodeham, who discharged the office of Chief Standard-bearer in fee for the castlery of Castle Baynard within the City. When war loomed on the horizon Fitzwalter, armed and astride his horse of service, and attended by twenty men-at-arms, who were mounted on horses harnessed with mail or iron, proceeded to the great door of the Minster of St. Paul with a banner of his arms displayed before him. There he was met by the Mayor, Sheriffs, and Aldermen, who came armed and afoot out of the Minster, the Mayor bearing his banner which was gules and charged with the image of St. Paul, or, the head, hands, and feet argent, and in the hands a sword also argent.

On perceiving their approach, Fitzwalter dismounted, saluted the Mayor as his comrade, and, addressing him, said: "Sir Mayor, I am come to do my service, which I owe to the City." The Mayor, Sheriffs, and Aldermen replied thereupon: "We allow you here, as our Standard-bearer of this City in fee, this banner of the City to carry and govern to your power, to the honour and profit of the City."

Fitzwalter then took the banner in his hand, and the Mayor and the Sheriffs, following him to the door, presented him with a horse of the value of L20, garnished with a saddle of his arms and covered with a sendal of the same. They also delivered to his chamberlain L20 sterling for his charges of that day. Holding the banner in his hand, Fitzwalter mounted the horse presented to him, and, as soon as he was seated, desired the Mayor that a marshal might be chosen straightway out of the host of London. This request having been complied with, he preferred another—namely, that the common signal might be sounded through the City, when it would be the duty of the commonalty to follow the Banner of St. Paul, borne before them by the Castellan, to Aldgate.

In the event of Fitzwalter marching out of the City, he chose from every ward two of the sagest inhabitants to superintend the defence of the City in his absence, and form a council of war, holding its sittings in the Priory of the Trinity adjoining Aldgate. It was supposed that the Army of London might be engaged from time to time in besieging towns or castles; and should a siege exceed a year in duration, the utmost amount Fitzwalter could claim as remuneration was one hundred shillings. If such were the duties of the Castellan in time of war, he had rights hardly less important in time of peace. Here it should be premised that under Norman rule the King's justice or the King's peace was assured by the grant of soke and soken—the former being the power of hearing and determining causes and levying fines and forfeitures, and the latter the area within which soke and other privileges were exercised. In the City of London the Fitzwalters had a soken extending from the wall of the Canonry of St. Paul as a man went down by the "bracine" or brewhouse of St. Paul to the Thames; and thence to the side of the mill that stood on the water running down by the Fleet Bridge, by London Walls, round by the Friars Preachers to Ludgate, and by the back of the friary to the corner of the wall of the said Canons of St. Paul. It embraced, in fact, the whole parish of the Church of St. Andrew, which was in their gift.

Appendant to this soken were various rights and privileges. Fitzwalter might choose from the sokemanry, or inhabitants of the soken, a Sokeman par excellence; and if any of the sokemanry was impleaded in the Guildhall on any matter not touching the body of the Mayor or any of the Sheriffs for the time being, the Sokeman might demand the court of Fitzwalter. But while the Mayor and Citizens had to allow him to hold his court, his sentence was expected to coincide with that of the Guildhall. He exercised, indeed, a co-ordinate rather than an appellate jurisdiction, as may be shown in the following manner:

Suppose that a thief had been taken in the soken, stocks and a prison were in readiness for him; and he was thence carried before the Mayor to receive his sentence, but not until he had been conveyed to Fitzwalter's court and within his franchise. The nature of the sentence, to which the latter's assent was required, varied with the gravity of the offence. If the person were condemned for simple larceny, he was conducted to the Elms, near Smithfield—the usual place of execution before Tyburn was adopted for the purpose—and there "suffered his judgment," i.e., was hanged like other common thieves. If, on the other hand, the theft was associated with treason, the crime, it was considered, called for more exemplary punishment, and the felon was bound to a pillar in the Thames at Wood-wharf, to which watermen fastened their boats or barges, there to remain during two successive floods and ebbs of the tide.

So important a franchise in the City was in itself a high honour, and it carried other distinctions with it. The Fitzwalter of the day, when the Mayor was minded to hold a Great Council, was invited to attend, and be a member of it; and on his arrival, the Mayor or his deputy was required to rise and appoint him a place by his side. During the time he was at the hustings, all judgments were pronounced by his mouth, and such waifs as might accrue whilst he was there were presented by him to the bailiffs of the City or to whomsoever he pleased, by the advice of the Mayor.

Such is the story as we find it in the pages of Blount, in which it appears apropos of nothing—merely as an instance of curious and picturesque usages which had long ceased to exist. Blount, as we have seen, gives as his authority Sir William Dugdale, who alludes to the subject in his "Extinct Baronage of England," and Dugdale seems to have owed the information to the "Collection of Glover, Somerset Herald." Stow also knew of the "services and franchises," and it is thought that he had seen a copy of them in the "Liber Custumarum." The latter is accessible in print in Riley's edition of the "Munimenta Gildhallae Londiniensis," and corresponds in all or most respects with what we have found in Blount.

So much for the antecedents of the story.

The Fitzwalters are said to have come over with the Conqueror, and to have been invested with the soke before mentioned by his favour and in requital of their services. That the family had at one time extraordinary rights in the City of London is shown by the evidence of the Patent Rolls, from which we learn that in the third year of Edward I. (1275) Robert Fitzwalter received licence from the Crown to transfer Baynard Castle, "adjoining the wall of the City, with all walls and fosses thereunto pertaining, as also the Tourelle called Montfichet," to Robert Kilwardley, Archbishop of Canterbury, for the purpose of founding the House and Church of the Friars Preachers—"provided always that by reason of this grant nothing shall be extinguished to him and his heirs which to his Barony did belong, but that whatsoever relating thereto, as well in rents, landing of vessels, and other franchises and privileges in the City of London or elsewhere, without diminution unto him the said Robert, or to that Barony, have recently belonged, shall henceforth be reserved."

This Robert was the son of Walter Fitzwalter and grandson of his more illustrious namesake, the Marshal of the Army of God and Captain of the Barons in the days of King John; and it may be noted in passing that either to the last-named or his son Walter, as lord of Dunmow in Essex, has been ascribed the institution of the Flitch. Thirty years after the sale of his patrimonial estate Robert Fitzwalter, in 1303, recited and claimed his services "and franchises" before Sir John le Blount, Warden of the City; and as late as 1321, as shown by the "Placita de Quo Warranto," the Justiciars of the Iter were inquiring into the claims of Fitzwalter in relation to the City of London. One of his rights he was prepared to waive—namely, that of drowning traitors at Wood-wharf. The Justiciars refused to take cognizance of the matter, but the Fitzwalters did not soon or easily abandon their demands, which were renewed by John, grandson of Robert Fitzwalter, in 1347. On the feast of St. Matthew in that year it was announced to the Mayor, Aldermen, and Citizens in Common Council "that John, Lord Fitzwalter, claims to have franchises in the Ward of Castle Baynard wholly repugnant to the liberties of the City, and to the prejudice of the estate of his lordship the King, and of the liberties of the City aforesaid. For now of late he has made stocks for imprisonment of persons in the said Ward and [has claimed] to make deliverance of persons imprisoned." Thereupon it was agreed "that the said John had no franchise within the liberties of the City aforesaid, nor was he in future to intermeddle with any pleas holden in the Guildhall of London or with any matters touching the liberties of the City."