Medieval Law Enforcement in TTRPGs - Part Four - Escape
Previous posts in this series have dealt with arrest, trial and punishment in later medieval England. This discussion focusses on the ways that English men and women sought to escape retribution for their crimes and misdemeanours and how these can be utilized in RPGs.
The first thing to note - as should be clear from the previous examinations of the criminal law - is that a large number of people who might have ended up at the end of a rope did not do so because the formal and informal mechanisms of law enforcement meant that they were never caught, never tried or never convicted. The relative inefficiency of the process of securing defendants to attend court and the ability of local juries to decline to indict or convict their neighbours meant that, for many, there was simply no need to strive mightily to avoid punishment. But supposing you were unlucky enough to slip through all of the failsafe measures meant to prevent the criminal law from exacting the fearful penalties available to it? Of if you were just poor and friendless in a world that had little hesitation in regarding such people as undesirable and unworthy of protection? Well, medieval England was not without its avenues of escape.
Then, as now, a good way to avoid the consequences of your crimes was to be a member of the clergy. Out of the long struggles between the Pope and the Holy Roman Emperor on the continent and the crown and the ecclesiastical hierarchy in England in the 11th and 12th centuries had come a more or less agreed understanding that the secular power had no general right to put the clergy on trial. The exact nature of this prohibtion shifted over the years in England, with arguments over whether it extended to all criminal offences or only capital crimes and whether it applied to all those who could call themselves ‘clerks’ or only fully ordained priests, monks and nuns. Generally speaking, in later medieval England, there was a loose agreement that the ‘benefit of clergy’ applied to anyone ‘in holy orders’ and that this included those junior clerics such as acolytes, lectors, door-keepers and exorcists who were not fully beneficed priests. Upon conviction of a crime, such figures could claim benefit of clergy and escape secular punishment. This raised the question of how a man was supposed to prove he was a member of such a class and the solution that was settled upon in practice was a test of literacy. The accused was brought a book and had to read from it in front of a judge and, upon sufficient evidence, was turned over to the local bishop or the head of their religious house. In later years, the passage that had to be read was always the same - Psalm 51 - which presented the obvious objection that anyone who memorised the relevent biblical passage could escape justice.
The case against William Wodeward and his companion in crime William Rodyng in 1476 is typical. They were indicted for two felonious thefts committed in Southampton with the aid of staves and swords and, having been arrested and brought before the court by the sheriff, the jury found them guilty. However, at this point, Wodeward ‘stated that he was a clerk and petitioned for benefit of clergy to be allocated to him in this matter’. Conveniently present at the trial was Master Edward Hanington, deputy of the bishop of Winchester, armed with a letter of accreditation from the bishop empowering him to take custody of any clerks convicted at the session. This letter having been duly copied into the record of the trial, Wodeward was given a book, from which he proceeded to read with enough facility for him to be declared ‘a convicted clerk’ and handed over to Hanington. Willam Rodyng was hanged.
Once in the hands of the bishop, a convicted clerk was imprisoned, sometimes on a strict and abstemious diet, until such time as he could make compurgation (i.e. take an oath) with the aid of oath-helpers, swearing to his character and future good conduct. For legitimate parish priests, this often took the form of up to twelve of his parishioners swearing but, for notorious or serious offences, an imprisoned clerk might need to provide three priests to swear on his behalf in order to secure his release. In principle, if a clerk could not ‘purge himself’ he could be held in a bishop’s or abbot’s custody for an indeterminate amount of time. However, it seems probable that this was a relatively rare occurrence and escapes were far from unknown. In 1466 Robert Johnson ‘shipman’, was delivered to the abbot of Westminster as a convicted clerk without compurgation, but he nevertheless managed to abscond and went into hiding in Flanders. More dramatic was the escape from the same abbot’s prison in 1462 of Maurice Nowerton, convicted felon, who escaped with the aid of twelve conspirators
arrayed in manner of war, by force and arms, with swords, staves, bows, and arrows,… insulted the keeper of the gaol, and beat and wounded him so that he despaired of his life. And the aforesaid Maurice by force and arms, namely with a certain great chain which he then held in his hands, then and there falsely, feloniously, and of his own accord rescued himself from the custody of the said gaoler so far as he was able. Thereupon the yeoman and other malefactors… set him at large in great contempt of the king and to the great terror of the king's people.
It would be interesting to see in a quasi-medieval fantasy setting this notion that clerics cannot be prosecuted by the secular authorities for criminal acts. It seems to me to be a world-building detail that would be relatively simple to instantiate as a narrative choice and could lead to some interesting stories. For example, in a polytheistic world, do all priests merit exemption from the criminal law, or only some? If the latter, what criteria distinguishes those who benefit from those who do not? In a monotheistic world, the unified one, true church has the authority and resources to build great palaces, abbeys and prisons and the power to demand its clerics be handed over by the secular arm. How does a polytheistic or henothesitic world deal with these questions?
If you were not a clerk (or, at least, were wholly illiterate) your options as a wanted criminal were more limited but not nil. For the desperate there was often an opportunity to seek sanctuary on church property. In principle, sanctuary was available to anyone who had committed a wide - but not inexhaustible - range of crimes punishable by loss of life and limb. Santuary was not available for treason, heresy or felonies committed on church property, with the aid of sorcery or for anyone who was ‘a notorious malefactor’ or had already been convicted of a felony or been exiled from the realm. From the late 13th century, people began to use sanctuary to avoid the civil penalties for non-payment of debt and, although the crown and the courts deprecated this practice, it was never fully erased. In the sanctuary records of the College of St John in Beverley, of the 500 or so named sanctuary seekers for the period 1478 - 1539, 200 had committed crimes of violence and 208 were debtors.
A wanted man had to reach sanctuary. Someone who had just committed a murder, robbery or grievous assault was likely to be hotly pursued by the victim’s friends and family and, beyond that, there was the wider public duty on all to take part in ‘the hue and cry’ in an attempt to seize a suspect. In some cases one only had to cross the boundary into the precincts of the church (or even the graveyard) to be protected but, in other instances, one had to reach a specific location - commonly the porch. At Durham cathedral, St. Nicholas, Gloucester, and Holy Trinity, Stratford-upon-Avon, there are surviving ‘sanctuary knockers’ that one had to touch or knock on the church door in order to be safe. In principle, having once satisfied these requirements, a criminal was immune from arrest. In practice the heat of the pursuit could sometimes win out. In 1378 the esquire Robert Haulay escaped from the Tower of London and fled to Westminster Abbey to seek sanctuary. In hot pursuit was the Constable of the Tower and a posse of guards who entered the abbey church and, in the ensuing struggle, killed both Haulay and the sacristan of the abbey in front of the prior’s throne. The abbey was closed for months and had to be re-dedicated to wash away the sinful stain.
Any church could serve as a place of sanctuary but, outside the larger and more established religious houses that had been awarded ‘the right of sanctuary’ by royal charter, this was not a long-term solution, as the right only lasted for between 30 and 40 days, after which time the sheriff or constables could enter the church and affect an arrest. It was forbidden for anyone except the parish priest to provide a sanctuary seeker with sustenance or succour of any kind and, if they left the body of the church, a wanted criminal could be taken up by the authorities and put on trial like anybody else. Very often, the church was obliged to ring a bell to inform the parish that it had received a fugitive, and this allowed the sheriff or constables to organise men from the nearest four borough wards or rural townships to cordon off the church and prevent the wanted person escaping. The most common method of securing a sanctuary seeker who overstayed his welcome was simply to starve him out, though accounts do exist of the forcible extraction of fugitives who had breached the time-limit.
With the clock ticking down to the end of the grace period and law enforcement officers watching the exits, sanctuary seekers could not loiter, and for many the only remaining choice was the process of ‘confession and abjuration’. Under this procedure, the fugitive would call for the local coroner (a royal official with a duty to investigate deaths and serious crimes with the aid of local jurors) to attend the church. The criminal would then have to confess his offence to the coroner, who would record the details, in part as proof that the coroner had done his job and found the suspect but also so that the confession could be introduced as incontrovertible evidence against him in the event that he was ever re-arrested. Thereafter the fugitive took a solemn oath to leave (abjure) the realm and was given a fixed number of days before which he must make his way to a specified port and take ship for a foreign country (or cross the land border into Scotland). During the journey, the abjuror - bare-headed and barefoot - must bear some symbol of his status, commonly a small wooden cross or a white cross stitched on to his clothing. He would often be accompanied by a detachment of constables or under-sheriffs to ensure his timely departure and that he did not deviate from the road. At the designated port, the abjurer had to take passage within the coming and going of one tide and if, for whatever reason, this was not possible, he had to wade knee-deep into the sea at each tide as a symbol of his continuing oath and duty to leave as soon as possible. If, having once abjured, a criminal ever re-entered England and was apprehended, he could never abjure again and was subject to summary trial and execution.
By the early 15th century a number of religious houses including Durham cathedral, the College of St John at Beverley, the abbeys of Westminster, Glastonbury, Beaulieu, the priories of Hexham and Tynemouth and the collegiate church of St. Martin le Grand in London claimed the right to be ‘chartered sanctuaries’. By virtue of charters supposedly granted by the crown, these institutions offered permanent sanctuary to fugitives who could live out the rest of their lives within the bounds of the cathedral, abbey or church immune from arrest by any secular or ecclesiatical official. There were constraints. Such permanent residents had to confess all of their crimes to the church official in charge of sanctuary and these confessions were written down, presumably to be used as evidence against them in the event of any recidivism. They had to swear to obey the clergy in all things, never to commit another offence nor carry any weapon and to stand ready to assist the authorities in the case of civic strife or danger such as outbreaks of fire. Often they had to engage in some mild penitential actvity, such as serving as bellringers for no remuneration. Long-term sanctuary seekers were not provided with alms by the church and had to make their own way, commonly renting rooms within the boundaries of the eccleisastical property and carrying on some trade or labouring activity. Of course, if they ever ventured outside the bounds of the sanctuary (often demarcated by stone crosses set up in fields or at the roadside) they could be captured and brought to trial. Sanctuary churches guarded their rights jealously and some imposed a sliding scale of fines for anyone entering their bounds intending to carry off a sanctuary seeker, the sums owing increasing the further the pursuers had traversed the boundary of the sanctuary.
The loss of records means we are not certain how many fugitives actually availed themselves of long-term sanctuary. It seems quite probable that many - perhaps even most of them - lingered long enough for the interest in their crimes to abate before quietly slipping away and starting again somewhere new (though this was not necessarily an easy option). Of course, having confessed their crimes and their admission being written down, anyone who abandoned sanctuary and was later recaptured and identified was almost certain to be convicted out of hand on his own testimony.
The concept of sanctuary could be very interesting in an RPG, either from the perspective of the authorities or the criminal. One can easily envisage an adventure structured around the characters being called upon to guard a sanctuary-seeker or escort an abjurer on his journey in to exile. The exact flavour of such a game could vary from the simple - the abjurer is actually a dangerous criminal and the characters have to ward him with great care - to the more morally ambiguous; perhaps the abjurer is innocent or has some other compelling reason to cause the characters to doubt their own righteousness? From the other end of the telescope, an adventure where wanted characters try to make it to a distant sanctuary writes itself. Those sheltering within a permanent sanctuary have a more or less compelling reason to remain within a constrained and possibly slightly surreal open prison or an incentive to try and escape.
If one thing above all others tarnished the reputation of medieval criminal justice in the eyes of many of the great scholars of the 19th and early 20th centuries, it was the apparent ubiquity of ‘the royal pardon’. In the age of increasingly effective courts, police and prisons that gave rise to an expectation of rigorous and (sort of) impartial justice and the punishment of criminals, the idea that men and women could simply purchase immunity was baffling, bordering on abhorrent. Nor was this attitude wholly absent in pre-modern England. James I was said to have bitterly remarked that, had Judas Iscariot himself sought a pardon for his betrayal of Christ, he had no doubt that some noble or gentleman about his court would lobby him on behalf of the most reviled man in Christendom. In medieval England, there were sparodic concerns that kings could abuse their power of pardon, but all attempts to ensure that pardons had to be ratified by parliament or the royal council as a safegaurd against too much royal liberality failed. These infrequent concerns aside, in general medieval people of all degrees accepted - even welcomed - the existence of a system that allowed defendants to acquire a pardon for their offences and so escape accountability and punishment.
How many people pleaded pardons in later medieval England is not certainly established. Various surveys of the surviving records of criminal trials c.1200 - 1450 suggest that somewhere between 1% and 3% of accused felons produced pardons. The figure could sometimes rise to as high as 10% - 15% in periods when a number of general pardons were issued in successive years as part of attempts to ease political tension (such as the early years of Henry IV’s reign), but such figures were anomalous. Of those offences for which pardons were granted, only a small minority - perhaps 10% - were for murder, the rest being for non-culpable homicides and felonious thefts and other property crimes. By the later 16th century something like half of all pardons were granted for some form of larceny. It was hardly the case, then, that evasion of criminal liability for crimes of violence through pleading a pardon was rampant in medieval England.
Administratively, the process is well understood. A person in want of an individual pardon had to petition the king, stating why he should receive a pardon. If the king assented, he would send a written instruction under one of the small seals (the privy and later signet seals) to the royal writing offce of the chancery, where the pardon would be drawn up formally (engrossed) and sealed with the great seal before being issued to the petitioner in return for a fee. The recipient could then display this document to the court before which he was indicted to be entered into the trial record in exchange for the traditional gift to the court clerk of a pair of gloves. The pardon was then proclaimed in court and any process against the grantee was ended. In principle, a pardon could be sought and granted up to the moment of execution of sentence. In the case of general pardons issued - nominally - at the request of parliament to cover all offences committed within a particular period of time or for all crimes of a specifc type, each eligible person could apply and pay the fee (18s 4d) and collect a copy of the document from the writing office.
There were limits to this power. A monarch could not simply issue a blanket pardon for no stated reason. These kind of abuses were one of the key reasons for the downfall of Richard II. His habit of issuing sealed but otherwise blank parchments - the so called ‘carte blanche’ - to his allies who could then fill in the details of what was required was hated as a corrupt and unjust circumvention of the rule of law. Petitioners had to at least make some attempt to show why they deserved a pardon and the monarch usually had to pretend to believe them. It was, therefore, common - though far from mandatory - for the wording of the pardon to include some plausible reason for its granting - that the defendant was not guilty in law by reason of absence of malice, insanity or some other extenuating circumstance or because they were the victim of conspiracy at the hands of their enemies or even just because they were poor but of good character. Attempts were also made to ensure that those who secured pardons were under some measure of compulsion to behave themselves in future, usually by insisting that anyone who acted as surety for the grantee was subject to a fine in the event of any further misconduct.
Strangely for such a relatively common practice, while we know a great deal about its bureaucratic workings, we have very little information about the informal mechanisms and processes that must have occured behind the scenes. Anyone hoping to get their written petition in front of the king would be taking an extraordinary risk if they relied solely on administrative efficiency and bureaucratic disinterest. Far better to ‘make one’s own luck’ by seeking the assistance of those who could bring the request for a pardon to the monarch’s attention and present it in the most flattering light. This process is surprisingly opaque, only becoming expressly visible in a handful of scattered references in the surviving gentry correspondence. The following was written by John Payn, a servant of Sir John Fastolf, to Fastolf’s ally John Paston, detailing events in the aftermath of Cade’s revolt in 1450 in which Payn had become entangled.
The bishop of Rochester impeached me to the queen, and so I was arrested by the queen’s commandment and sent to the Marshalsea, and there I was under great duress and in fear for my life, and was threatened with being hanged, drawn and quartered; and so would have been made to impeach my master Fastolf of treason. And because I would not, they had me up to Westminster, and there would have sent me to the gaol at Windsor; but my wife’s cousin and a cousin of mine that were yeomen of the crown went to the king and got grace and a charter of pardon.
J. Gairdner (ed.), The Paston Letters (6 vols, London, 1904, repr. London, 1983), Vol II, p.156.
Payn omits the detail, recorded in the text of the pardon itself, that forgiveness was only forthcoming when he and others had submitted to Henry VI in person, stripped partially naked in the streets, during the king’s progress through Kent in the aftermath of the revolt. But the salient point is that Payn, who on his own account did fight with Cade’s rebels against the forces of the crown (albeit, as he claims, against his will), was able to leverage he and his wife’s connections with their respective cousins who were serving as members of the royal household and who approached the king directly and secured a pardon.
As in the previous discussions of medieval English law enforcement, here too we have an example of the sort of behaviour that we might be tempted to label as nepotistic at best and outrightly corrupt at worst. Recall the account of the approver Thomas Whitehorn in Hampshire, who turned state’s evidence against 18 men: ‘And some who had no friendship nor goods were hanged and those that had goods got their charters of pardon’. But remember also that English society in the Middle Ages, lacking more empirical means of criminal detection and investigation, had little choice but to rely on reputation and wordly status to arrive at conclusions about a suspect’s honesty and integrity and from there to make a judgment about culpability. In other words, the very fact that a man could afford a pardon or had the social connections to ensure that it was granted was, in itself, indicative of his character and therefore of the degree to which he should be exposed (or not) to the full rigour of the law.
Can a system of pardons be inserted into a quasi-medieval RPG world? Perhaps, but, as discussed in previous posts, the importance of social capital embedded within the system as it actually existed means that, in games where characters have no meaningful relationship to the wider world and society, it will lack any sense of realism. In games where that relationship has been established, however, the process of securing a pardon would make for an interesting plot in which characters have to navigate the structures of local and national power seeking a patron who can facilitate their escape from liability (or perhaps even ensure that justice is properly served…). There is also the possibilty of considering the process from the other prespective, in which the characters have the power to see that a pardon is granted and so are pursued by various people seeking the party’s aid. An interesting MacGuffin for an adventure could also be where some important NPC has had their pardon stolen and the party is tasked with retrieving it under pressure of time to do so before their patron is convicted and executed.