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From England to France
Felony and Exile in the High Middle Ages
By William Chester Jordan PRINCETON UNIVERSITY PRESS
Copyright © 2015 Princeton University Press
All rights reserved.
ISBN: 978-1-4008-6639-7
CHAPTER 1
Abjuring the Realm
Exile is an old imposition on human freedom, older than the text of the Bible, but born, according to that scripture, almost at the moment of creation itself. For the first sin was punished by expulsion from the Garden with no explicit promise of being able to return (Genesis 3:22–24). The second sin, Cain's, was exile of a different sort, but exile nonetheless, and one in which the expellee bore a mark signifying his act of murder and the Lord's monopoly on vengeance (Genesis 4:12–15). Exile was no new thing in the High Middle Ages. Everywhere the hideous representation of Cain, the first murderer, was to be met with in Christian art. But the relationship of the medieval English law of exile to the laws addressing felons and felonies—heinous crimes which in theory deserved severe corporal or capital punishment—is a complicated and, by modern reckoning, an unusual one. This is especially the case because two groups of people suspected of or implicated in felonies in the High Middle Ages regularly avoided the punishments which would have been meted out to them if they had been convicted in a court of law. The evidence will be persuasive, I hope, that scholars have significantly underappreciated exile as a feature of English justice in the Middle Ages. By failing to treat it with the seriousness it deserves, historians, in particular, have misunderstood important aspects of the legal, moral, and social history of the period.
Felony and Exile
Who constituted the two groups of people referred to above? One was composed of men and women who, though not convicted of the crimes of which they were suspected, were in such bad repute that they were obliged to abjure (foreswear) the realm. The other comprised felons who confessed their crimes in sanctuary (on which more shortly) or in other special circumstances, who also were obliged to abjure. Unlike those few convicted criminals who had their punishments mitigated to penitential pilgrimage, within or outside the realm, to forced crusading, or to entrance into a monastery, an abjurer of the realm of England was debarred from living in, or visiting, the kingdom ever again, without the crown's prior permission. The Latin phrase used in this process was abjurare (or less often ejurare or extra-jurare) regnum. These exiles were Christians, although English royal officials on rare occasions before 1290 expelled individual Jews and sometimes employed the language of abjuration in doing so. Most of them were also of lower status than the political exiles described in the introduction, and most were poor long before they departed England, unlike political exiles whose property had been confiscated or the Italian bankers, who were suspected of frauds and whose enormous wealth was forfeited at the time of their expulsion.
The abjurers need to be distinguished from simple outlaws (men) and waifs (women), who were, by and large, low-status fugitives from the law and on whom, if apprehended, anyone could in theory execute capital justice, just as anyone could kill a predatory wolf. Outlaws bore the wolf's head, a striking and enduring metaphor. Considerable in number, outlaws and waifs had escaped adjudication and/or punishment by fleeing and sought shelter and safety wherever they could, most often in woodlands. "Desouz le hourail se kevere laroun," one poet wrote: "A thief hides in the forest edge." Indeed, a few notorious exceptions aside, most fugitives were too ill-connected to arrange clandestine travel to distant destinations or abroad unless they lived in the borderlands with Scotland and their destination of choice was the northern kingdom. As to the small minority of outlaws and waifs who did flee abroad, their experiences and the dangers they faced do sometimes help elucidate the abjurers' situation.
Nevertheless, it must be kept in mind that every exile, unlike an outlaw or waif, had undergone and completed a form of legal process. This was not—at least in England—conviction at trial. Abjuration was only exceptionally and very rarely made available to judicially convicted individuals. Elsewhere, that is to say, on the continent, exile was employed in the English way as perpetual banishment without conviction at trial in addition to being imposed as a punishment mandated upon conviction for a crime. Like the punishment of mutilation, which varied according to the character or seriousness of the crime, exile in this latter sense was keyed to a term of years appropriate to the nature of the crime and the status of the felon as a principal or accessory. In England and mutatis mutandis on the continent, abjuration into perpetual exile without conviction in a trial typically arose out of two situations: (1) the crown's formal accusation of felony but its failure to convict on the charge, or (2) the registering of a confession of felony with a competent administrative authority without any semblance of a trial. In both situations, to repeat, a solemn promise was exacted from the abjurer never to return to the jurisdiction from which he or she was exiled.
If, following the first scenario, the crown made formal accusations of felony and it failed to convict, by what warrant did it exile exonerated suspects? It was a peculiar set of administrative policies which disadvantaged such people, specifically, those who were acquitted at the unilateral judicial ordeals. Up through the year 1215, the fundamental mode of testing an indicted person's innocence of a felony, in the absence of any full proof, such as a confession in open court or the testimony of two eyewitnesses or flight, which was regarded as a sure token of culpability, was the ordeal. It came into play when there was strong presumptive evidence for believing a person to be guilty. Medieval law, in theory and in practice, resisted judgments which condemned a person to death or dismemberment unless there was a full proof of guilt. Circumstantial evidence has often sufficed for conviction for felonies in modern jurisdictions. Evan Mandery, writing of United States federal jurisdiction, notes that "federal practice treats circumstantial evidence identically to direct evidence and permits conviction based solely on such evidence." But circumstantial evidence alone was not generally sufficient for conviction—in theory or in practice—in High Medieval English or continental courts.
Ordeal, the judgment of God, was a full proof, equivalent in probative value to other full proofs. And it was the fallback setting when other full proofs were lacking. In other words, if bad reputation (mala fama, as continental and English jurists would say), had led to one's formal indictment for felony, but no full proofs could be produced ,the trial court opted to employ ordeal. In the English system the Assizes or ordinances of Clarendon of 1166 and of Northampton of 1176 judicialized the process of identifying—which is to say, indicting in the king's name—people suspected of inflicting serious harms on others, employing here the regular presentments of grand juries. These included homicides, thereby providing an alternative to the traditional and, it must be acknowledged, as Paul Hyams' work has shown, tenacious vengeance by feud. The new system also, as intimated, turned the suspects' acts into crimes against the king, in whose name the grand juries indicted suspects, and implicitly into crimes against the community of the realm. Trial by ordeal followed for those who were successfully brought to court. It was thriving in the early thirteenth century in the wake of the increased use of the grand juries.
The most famous types of ordeal were those of hot iron, hot water, and cold water In preparation the prisoner went through required ablutions, prayers, and blessings. Later a priest blessed the ordeal fire in which a bar of iron of a certain weight was heated white-hot or upon which a cauldron of water containing a stone of a specified weight was brought to a boil. For the ordeal of cold water the water and pit which were to receive the accused were given the appropriate blessing. In the ordeal of hot iron the defendant was restrained and the metal placed in his or her hands for a specified length of time, whereupon it was removed, the hands bandaged, and a three-day wait imposed. At the expiration of the waiting period, the court ordered the removal of the bandages and the examination of the hands in the judges' and suitors' presence. Then the court rendered God's (revealed) judgment. Hands beginning to heal evidenced innocence, while those unclean (bleeding profusely, suppurating, stinking) evidenced guilt, in which case the accused faced sentence of mutilation or execution .The ordeal of hot water followed a similar procedure after the accused retrieved the stone from the cauldron. In the ordeal of cold water, the accused was immersed in the pool. Sinking implied innocence. The holy water received the accused. Floating implied guilt. Presumably, the fear incumbent on a guilty conscience dreading the judgment of God was being revealed in a desperate desire not to drown. In any case, the victim, whether showing signs of calm confidence entering the water or evidencing terror and trying to thrash, was removed from the pit before any serious physical harm could be done. The guilty were liable to mutilation or execution.
Harsh as this process may appear, the whole system was mitigated by the fact that almost 70 percent of prisoners who went to the ordeal were acquitted, a result which has stimulated an extraordinary amount of research and reams of brilliant analysis. Scholars have wondered at the initial origin of the ordeal as a mode of proof and its supposed appropriateness to "primitive" societies. They have puzzled productively over the apparent continued attraction of the ordeal, even when certain sophisticated scholastic thinkers, university men, in the late twelfth century initiated a scathing critique of it.
Perhaps the most curious feature of the place of the ordeal in the justice system seen from a modern vantage point pertains to the immediate consequence of so many defendants' acquittals. It has been argued that the high rate of acquittal by ordeal testifies in part to the strong medieval inclination against imposing dismemberment and, in particular, capital punishment, as often as the law of felony would have required in convictions. Perhaps so. Nevertheless, though success at the ordeal established the accused's innocence, it did so without wiping the slate clean. For those who oversaw the administration of justice, God had not commanded or implied that succeeding at the ordeal should make the judges ignore the circumstances which brought the accused to court in the first place. The accused was compromised by having a reputation so low that he or she was obliged to undergo the ordeal. Since the bad reputation remained, it itself could be censured. Nor was this mere theorizing: as a matter of usual practice those indicted by grand juries and who succeeded at the ordeal were constrained to abjure the realm thereafter. Although in this way abjuration was what we would call punishing the innocent, it served the additional purpose of removing despised persons from the communities where their enemies might take vengeance on them and thereby initiate or perpetuate the feuds that so disturbed medieval life.
To some of the abjurers, this byproduct of abjuration was insufficient to justify it. Indeed, the perplexity felt by some of those exonerated is sometimes palpable. Wille Brun, for example, who succeeded at the ordeal of water in 1212, was dumbfounded when told he had to abjure. He took the oath (ejuravit) but protested that he was willing to find a mark—two-thirds of a pound, a huge amount of money at the time—and pledges, men who assured the court that he would pay, for his innocence. No one, he was willing to bet, would accuse him to his face of the murder of which the judgment of God had acquitted him. But of course this was not the point. The end of the process punished his reputation, not his alleged crime. His argument thus availed him nothing.
I have already referred to the fact that there had long been elite academic criticism of the use of ordeals and belief in their efficacy. Although there were powerful counterarguments in favor of their reliability as well, the Fourth Lateran Council of 1215, under the presidency of Pope Innocent III (1198–1216), accepted the superior merits of the academic critique. The fathers of the Council prohibited priests from intoning the formulas necessary to sanctify the ordeal, without which believers could have no confidence that they were witnessing or experiencing God's own judgment. Princes throughout the Catholic world were less than enthusiastic about the Council' s pronouncement. With a few strokes of the quill, the fathers, if they had been successful—an important if—would have undermined one of the principal modes of proof in secular law. Most rulers refused to let priests abandon the responsibility of blessing ordeal fires, judgment pits (for the ordeal of cold water), and the like for decades, and it is not clear that priests themselves wanted to abandon it. Those who did wish to were browbeaten—this is the historian Scott Taylor's word—into performing the rituals. Two rulers, however, obeyed with relative expedition: the king of England, Henry III (1216–72), a child under the tutelage of a regency council, which included a papal legate who got his way on the matter, and the king of Denmark, Valdemar II (1202–41), who had on several occasions received papal support in his political struggles and may have been returning the favor.
The English government's willingness to receive the Lateran decree and suspend trials by ordeal led to the filling up of jails with indicted prisoners who could not be tried. This, in turn, led judges and administrators to offer them trial by jury as an alternative. Juries had been used before to gather information, to adjudicate many civil cases, to make the accusations in the form of grand jury presentments (a regular practice since 1166, which led to ordeal for felony), and by private agreement to avoid trial by battle when that was the otherwise appropriate mode of proof. In these other instances juries proffered their verdicts—statements which they alleged were "truly rendered," vere dicta, but mostly based on majority votes. The innovation imposed when the jury came to substitute for the ordeal was the rule of unanimity, either in favor of or against innocence. Underlying the innovation and, I would argue, salving the innovators' consciences, was the idea that unanimity guaranteed the active presence of the Holy Spirit in jury deliberations, thus making the verdict an authentic judgment of God as the ordeal had been widely regarded before this time. In papal elections, unanimity was said to be quasi per inspirationem divinam (like divine inspiration), but whether Englishmen directly borrowed the idea has, I think, been impossible to establish so far. Unanimity would have been a powerful if not necessarily compelling selling point for judges, jurors, victims' families and friends, and defendants who were being asked to abandon the ordeal, a familiar and accepted mode of proof.
The unanimous verdict of a jury of twelve good men and true, operative even before it came to be formally fixed in law in the fourteenth century, was therefore understood by those who supported it as a full proof of innocence or guilt, just like ordeal. That it did not possess ordeal's respectable patina of ancestral sanctification, however, that it took a while to decide to sever the large indictment jury from the twelve-man petit jury (in the earliest usages the same jury indicted and tried), and that the rule of unanimity became absolute only after some time, were altogether troubling. These factors may account for the fact that trial by jury upon indictment for felony often led to acquittal; conviction rates in some samples are as low as 20 to 25 percent. The average conviction rate in the United States, according to the Bureau of Justice Statistics, is at present 68 percent. In eighteenth-century England it only approached 40 percent, but that was still substantially higher than in the Middle Ages. Comparing justice statistics across time and legal systems is notoriously difficult, but the general point seems well established: namely, that like the ordeal, the mode of proof which replaced it in England exhibited in practice a reluctance to render guilty verdicts and thus to authorize the capital and horrendous corporal punishments which would follow. This reluctance has been shown to have persisted at least down to the late fourteenth century.
In England initial misgivings and disquiet over the reliability of jury trial as a mode of proof also help to explain why the process began as an optional one and, by tradition and practice, remained so for centuries to come. An indicted suspect had to consent to the process. The alternative was to remain in prison—unconvicted and therefore immune from the confiscation of one's property. In no little time frustrations with this possible outcome led authorities to permit extraordinary measures to induce indictees to "voluntarily" accept trial by jury. Prison forte et dure, the limitation of prisoners' sustenance to bread and water on alternate days, was employed to weaken the will of resisters. This was subsequently supplemented by peine forte et dure, the application of weights, incrementally increased, to the prisoner's chest. A sweeter method of inducement was that authorities, despite perhaps initial hesitation, did not require abjuration after a jury's not guilty verdict, as they did after success at the ordeal. Being found innocent by a jury in court entirely restored one's freedom.
(Continues...)
Excerpted from From England to France by William Chester Jordan. Copyright © 2015 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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