How to Avoid the Death Penalty in Medieval England, Part I

(Host: Samantha) In medieval England, just because you received the death penalty for your crimes doesn't mean you necessarily had to actually die. Here, Samantha looks at two methods of avoiding having your sentence carried out: benefit of clergy and turning to outlawry.

 

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Episode Transcript

(00:00):
Today in the first of two installments I’m going to tell you about two strategies that
people who were sentenced to death could use to avoid the hangman’s noose. Tune in
to learn about benefit of clergy and to hear a bit about outlawry. And next time I’ll give you
even more strategies to save your neck if you ever travel back in time and commit a crime.

(00:25):
Hello and welcome to Footnoting History. I’m your host Sam and today
I want to talk to you about avoiding punishment in the Middle Ages. Now,
culturally we’re really primed to think about the medieval period as a backwards
and brutal time where people were tortured and sentenced to death for the smallest of offenses.
Here on Footnoting History, we know that this idea is completely inaccurate. And

(00:48):
I can’t get into all of the reasons why right now. That would be its own
podcast – heck it could be its own course. Instead, I’m going to focus on how people
could avoid punishment in medieval England even after they were convicted of a crime.
Before we get into the main topic though,
I’d like to emphasize that there were also a lot of ways to avoid being convicted to begin with,

(01:09):
so my list today doesn’t even begin to cover all of the ways to avoid punishment.
I’m going to focus on four ways a person could avoid being punished,
even after a guilty sentence was pronounced. These methods are:
claiming benefit of clergy, becoming an outlaw, taking sanctuary, and receiving a
pardon. I will be talking about the first two today, but you’ll have to wait until the next

(01:33):
episode to get to my personal favorite strategy to avoid the hangman’s noose.
Let’s start though with benefit of clergy. This strategy comes from the
idea that members of the clergy were supposed to hold themselves up above secular society
and to serve as models to everyone else. Men of the cloth were supposed to take

(01:54):
moral and legal codes very seriously – “Thou shalt not kill,” for example,
was taken to mean that members of clergy should not shed blood at all. Though admittedly this
ideal developed gradually and in the early part of the Middle Ages there were warrior
bishops and even warrior popes. Because members of the clergy were not supposed to shed blood,

(02:15):
by the later medieval period, ecclesiastical courts could not sentence people to death, though
it could turn people who it deemed deserving of death over to the secular authorities.
In theory, men who were in holy orders – and that included not only all bishops,
archbishops, and priests but also lower-level clerks, including pretty much all students

(02:37):
enrolled in universities – were only supposed to be subject to the laws of the Church. In theory,
if a clergyman committed a crime (even a heinous crime like rape or murder) he could only be
tried before the ecclesiastical courts. Because those courts could not assign a death sentence,
effectively the worst thing that could happen to a criminous clerk was that he could be held

(03:01):
in the bishop’s prison or he could be stripped of holy orders or both. Now,
neither of these punishments were minor things. Medieval prisons were not exactly nice places to
live (though recent research suggests that they might not have been quite as bad as you imagine).
And a man stripped of holy orders could not do any of the things that had previously given him his

(03:22):
livelihood – he could not give mass, he could not preside over a parish church, or preach,
or teach, or even attend a university. But he was still alive, and presumably that was a good thing.
It shouldn’t be surprising that people who were accused of committing felonious crimes,
wanted to be tried by the Church courts (which could not kill them) as opposed to
the secular courts where the only punishment for felonious crimes was death. And so we

(03:48):
have a phenomenon in the later Middle Ages in which men (and sorry, ladies,
this strategy only worked for men) pretended to be clerks so that they could claim “benefit
of clergy” – or the right to be tried in an ecclesiastical court rather than in a secular one.
How, you might ask yourselves, could one prove that they were a member of the clergy? There
was no comprehensive, searchable list of all ordained clergymen (as much as we historians

(04:13):
might wish there was). But there was one thing that distinguished the clergy from
most other people – at least until the latter half of the fourteenth century – and that was
the ability to read. A man who could read certain prayers was assumed to
be a member of the clergy and to have the right to trial before the Church courts.
That said, the method of trying felons often ensured that suspects were held in jails for

(04:39):
an extended period of time (sometimes even for years) while they were waiting for the
right justices to come and place them on trial. This meant that some enterprising
individuals could use this time to learn how to read (or at least to read the prayers that
they were likely to be given). We also have some records which suggest that some people

(04:59):
were just memorizing the appropriate prayers and when they were shown a different passage,
they failed their test. And so we see this phenomenon in the later Middle Ages in which
men who were accused of a crime or who intended to pursue a life of crime were
increasingly literate. And through this deceit they were sometimes successful in avoiding death.

(05:20):
I should also note that benefit of clergy could be claimed at any point during a trial – it
could claimed before a trial started, during the proceedings, or even after a verdict was rendered.
There were some people, it seems, who waited to see whether or not the jury would decide to
kill them before claiming clerical privileges. Of course, the medieval authorities weren’t stupid

(05:44):
and they realized that people were gaming the system by learning to read. Secular authorities
began to impose a few limits on claiming benefit of clergy in the fifteenth century. And the
bishops, though usually very careful to defend their rights, made some concessions in this regard
because they didn’t particularly want to have their prisons filled up with fake clerics either.

(06:07):
So let’s say you’re convicted of a crime but you can’t learn to read. If you’re lucky you
might be able to run away, which generally meant becoming an outlaw. Limited policing and sometimes
lax enforcement of prisons and parish sanctuaries meant that people did escape from time to time. If
someone was let out on bail and then escaped the people who had stood surety for them (that means

(06:30):
the people who had promised they would come to court) were fined. If someone escaped out
of a jail or prison the person who was responsible for that jail had to pay a fine. And if someone
escaped out of a sanctuary, then those who were responsible for keeping watch over that sanctuary
had to pay a fine. So there’s a punishment to the community if people managed to escape.

(06:53):
Once an individual fled, they were typically proclaimed an outlaw (or if
they had not already been tried, they could be tried in abstentia and then proclaimed
an outlaw). Once someone was outlawed they lost all protection of the law which meant,
at least in theory, that there was no rule against killing them on sight. We don’t have
many surviving references, however, to outlaws being summarily executed.

(07:17):
That said, outlawry would have been a pretty big deal. At the very least the outlaw had to
leave their community and start over somewhere else without family, or financial resources,
or property. It’s not shocking, therefore, that many of those who were outlawed joined
up with criminal gangs. We actually know a fair amount about some of these gangs,

(07:38):
and maybe we should do an episode about one or more of them in the future but
for today’s purposes it suffices to know that there were groups who banded together
for mutual protection and, sometimes, to perpetrate ongoing crime sprees.
That said, an outlaw did not need to be a permanent condition. It was possible
to either pay the king for a pardon or to join the king’s service to earn a pardon,

(08:02):
which effectively wiped the slate clean (at least from a legal point of view, it probably was more
difficult to reestablish one’s standing within the community if one were to try to go back home).
In my next episode I will talk more about pardons and I will tell you
one other method to avoid dying without necessarily embracing a life of crime.

(08:23):
But for now I will bid you adieu. I hope you’ve enjoyed this episode of Footnoting
History and if you did I hope that you will join us again soon or visit our website
www.footnotinghistory.com to learn about more ways that you can support our podcast.