Part 11 (2/2)
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 a.s.sembled 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 doc.u.mentary 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 s.h.i.+pping 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 a.s.signed 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.” n.o.body was suffered to molest the felon on his journey seawards on pain of forfeiting goods and chattels. This part of our subject receives excellent ill.u.s.tration 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 a.s.sign to him the port of his pa.s.sage, and after his abjuration there shall be delivered unto him by the head officer, or his a.s.signees, a cross, and proclamation shall be made that while he be going by the highway towards the port to him a.s.signed, 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 a.s.signed 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 pa.s.sage; and if I cannot have pa.s.sage in the same place, I shall go every day into the sea to my knees, and above, crying, ”Pa.s.sage for the love of G.o.d 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 G.o.d 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 a.s.size 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 a.s.signed 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 a.s.sign 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 a.s.sise (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 pa.s.sages of this highly interesting suit:
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