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 £30 to the King....
"If anyone flinch from justice and escape, let him that hath him in
custody pay damages (_angild_). And if he be accused of having aided the
escape, let him clear himself according to the law of the country."
_Angild_ is defined by Maitland as the money compensation which the
person who has been wronged is entitled to receive--i.e., damage as
distinct from the fine (_wite_). Here, it is evident, we are on the same
ground as in the chapter treating of purgation by oath and the ordeal.
When we recollect that the thief had to face the pain and uncertain
issue of an ordeal, and that conviction might involve, _in addition to
the fine_, banishment, slavery, or the loss of a foot, we see at once
the temptation to abscond, but the disappearance of the accused was not
only prejudicial to the accuser, but compromised the person who was
responsible for his production. The escaped thief, therefore, was a
_nuisance_, as well as a danger, and, if he remained contumacious,
forfeiture of life and property was deemed not too heavy a penalty. If,
instead of being a thief, the felon chanced to be a murderer, the
inconvenience to the community, in whose midst the crime had been
perpetrated, was still greater. One of the laws of Edward the Confessor
ordained that if a man were found slain and the slayer could not be
found, a fine of 46 marks (£30 13_s._ 4_d._) 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 100_s._ for one murder in Wonford Hundred, 10 marks
for several murders in Axminster Hundred, and 20_s._ for a murder in
North Tawton Hundred. Another sum of 20_s._ 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 ecclesiæ 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 ecclesiæ," 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 præsumpserit 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: "Hæc 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