Old England, what a fascinating place, and what could be more fascinating than the laws of Old England. Over a thousand years of kings, queens and lawmakers made for some less than sensible laws, needless to say one blog won’t be enough.
It all started with the signing of the Magna Carta [English charter] by King John at Runnymede in June 1215. It consisted of 60 clauses, of which three still exist today.
Pivotal moment: King John of England signs the Magna Carta in Runnymede in 1215. It limited the power of the monarch and is responsible for the strong tradition of civil liberties that Britain enjoys today. Bettmann/Corbis
One defends the freedom and rights of the English church, another confirms the liberties and customs of London and other towns, but the third is the most famous:
No Freeman shall be taken or imprisoned, or be disseised [deprived] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgement of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
Along with Magna Carta, Henry III also signed a law decreeing the death penalty for anyone found killing, wounding or maiming fairies. This being only the tip of the iceberg when it comes to the strange and gruesome.
Some of the predecessors to make their mark on the laws included; Henry III, Edward I, George IV and Queen Victoria. The lawmakers continued to make alterations right up until 1969.
Habeas corpus – the cornerstone of liberty – did not appear until 464 years after the Magna Cater in 1679. In 1621, Alice Robinson and her husband were holding a rowdy, drunken party at their home in High Holborn, London. A passing constable heard ‘a brawling, fighting noise’ and entered the house to investigate. Inside, he alleged, he found ‘men and women in disordered and uncivil accompanying together’, so the party-pooping policeman accused Alice of keeping the whole parish awake with her revelry. When she swore at him, he arrested her and she was imprisoned in the Clerkenwell House of Correction.
Alice’s revellers missed her wild parties and pushed for her release, eventually forcing the authorities to bring her before the courts. She told a harrowing tale and when it transpired she was pregnant , there was an outcry, the jury acquitted her and the constable who had taken her into custody found himself in Newgate Prison on the grounds that he had arrested her without a warrant – and the justice of the peace who had signed the warrant for her detention was reprimanded.
The result was the Habeas Corpus Act which takes it name from the first words of the writ issued to enforce it: ‘Habeas corpus ad subjiciendum’, which means ‘You should have the body for submitting.’
All the above laws were being enforced by a number of different courts, some still sit today while others are in abeyance because no one has taken the trouble to abolish them. They include; The Court of Chivalry, The Prize Court, Courts Leet, Stannary Courts and Ecclesiastical courts.
There were many Fuedal Laws and each age had its barbarity. Be warned the following accounts are slightly disturbing.
Until Henry III began to record and organise the laws of the land, the law was pretty much what those in power said it was.
Saxon law could be quite barbarous and lords ruled over peasants with a rod of iron. The slightest offence could incur torture or death. For breaking dish or spilling wine, a servant might have their ears cut off, nose slit or lose a hand. While murderers and thieves could find sanctuary in a church, this privilege was not extended to servants, who could be dragged forcibly from the alter.
William the Conqueror introduced to England the ‘Forest Law’ which granted his feudal lords hunting rights and the sole rights to cut down trees on the lands that he gave them. He was inordinately fond of hunting and cleared vast areas, moving large numbers of villagers and peasants to make way for the chase. These deer parks were policed by ‘foresters’ and anyone caught poaching was liable to lose their testicles as well as their eyes.
The feudal lord still had absolute power over his family. Robert de Belseme, Earl of Shropshire, Arundel and Shrewsbury, one of the most powerful and defiant barons of Norman times, tore the eyes out of his own children when they hid their faces behind his cloak in a game, and had his wife locked in fetters and thrown into a dungeon, only to have his servants drag her to his bed each night before returning her to the dungeon in the morning. He refused to ransom his captives, preferring to have both men and women impaled on stakes. Even his friends were wary of him – he could be chatting away one minute then suddenly plunge his sword into the other person’s side and roar with laughter.
The Plantagents were little better. Richard the Lionheart made a law against thieving sailors, which said: ‘Whosoever is convicted of theft shall have his head shaved, melted pitch poured upon it, and the feathers from a pillow be shaken over it that he may be known; and shall be put on shore on the first land which the ship touches.’
Private prisons were being built and inmates had to pay for their upkeep. Gaolers were particularly harsh on those who failed to do so. In 1290, the gaoler at Newgate bound a prisoner so tightly with irons that his neck and spine were broken, while in 1384, at Sarum gaol, the gaoler kept a prisoner in stocks so long one winter his feet rotted away.
Sometimes the method of proving a defendant innocent could be just as barbarous and deadly.
Trial by ordeal was common in medieval times. If the trial was by fire, the accused would be forced to carry a red-hot piece of metal a set distance – usually the length of the nave of a church – or walk blindfolded over a bed of coal. If they emerged unscathed, or the wounds healed quickly, they would be found not guilty.
When Queen Emma, the mother of Edward the Confessor (1024-1066), was accused of a ‘criminal intrigue’ with Alwyn, Bishop of Winchester, she was forced to walk blindfolded over nine red-hot ploughshares – one for each of the manors she was accused of giving to her lover. Not only did she manage this, but also when she had done it she innocently asked when the ordeal was going to begin. This restored her reputation and convinced the populace of her innocence to such a degree that she gave another 21 manors to the Bishop without eliciting a murmur. Trial by ordeal was banned by the Pope in 1215, though it took some time before the ban was implemented in England.
As well as trial by Fire there was also Trial by Combat and Trial by Swallowing. Imagine having to prove your innocence by swallowing consecrated barley-cake. They believed that a lying mouth would choke on it.
If a culprit wanted to escape punishment he could claim sanctuary. Since Saxon times every church had to provide a safe haven for 40 days, after which the fugitive had to ‘abjure the realm’ – make their way to a seaport ‘with a wooden cross in their hands, barefoot and bareheaded, in their coats only’. It was an offence to molest an abjurer who was genuinely en route out of the country. When he reached port, if no ship was ready to take him, he had to wade out into the sea up to his knees every day to show he was serious about leaving until he found passage.
Some places offered permanent sanctuary – notably the lands around the great abbeys and churches. The centre of sanctuary was a ‘fridstool’ or ‘chair of peace’, which extended for a mile around it, with the limits marked by stone crosses, once inside a criminal was safe as any infraction of the right of sanctuary invited severe penalties.
One of the most famous sanctuaries was at Beverley, which had been granted its charter by King Athelstan. Near the altar of St John’s was the fridstool ‘to which what criminal soever flies had full protection’. Sir John Holland took sanctuary in the Church of St John at Beverley after taking revenge for the death of this squire by killing the son and heir of Hugh, the second Earl of Stafford. Holland was the half-brother of Richard II, so it was only a question of sitting it out until the Kind came through with a pardon.
Beverley was a sanctuary for fugitives-this is the sanctuary chair or "Fridstool" from which the boundaries of the sanctuary area were measured.
Needless to say the system of sanctuary led to gross abuse. The criminals would devise new robberies, nightly they would venture out to rob, steal, and kill then come in again.
The system became under threat. Pope Innocent VIII issued a bull relating to English sanctuaries which said that anyone who left a sanctuary’s asylum lost his right of protection, even if he returned later. It was further eroded as Henry VIII abolished the right for those accused of treason when in 1530 he effectively abolished the right of abjuration as too many criminals were escaping abroad. From then on, once inside a sanctuary, inmates had to stay there for life, wear a badge twenty inches long, were forbidden to carry weapons and could not leave their lodging during the hours of daylight. Statutes of 1604 and 1623 removed the last legal vestiges of the sanctuary almost everywhere, but there were still a few palatine counties that maintained special sanctuaries.
And, finally, the laws of Swan Upping. Swans have been royal birds since 1186, and the only bird that can be ‘estray’ – that is, if they are found on common land or open water they belonged to the Crown as a prerogative right. The crown can grant the privilege of keeping swans on open water provided they are marked and pinioned – that is, their wing feathers are removed so they can’t fly. But if a bird strays and is not recaptured within a year and a day the ownership passes back to the Crown.
Queen Elizabeth II smiles as she is shown an orphaned cygnet at Oakley Court on the river bank during a swan upping census on the River Thames on July 20, 2009 near Windsor, England. During the ancient annual ceremony the Swan Marker leads a team of Swan Uppers on a five-day journey along the River Thames from Sunbury-on-Thames through Windsor to Abingdon counting, marking and checking the health of all unmarked swans.
(July 19, 20092009-07-19 16:00:00 - Photo by WPA Pool/Getty Images Europe)
The swan’s royal status was enshrined in stature with the Act of Swans in 1482, which introduced a right of ‘possession by prescription’ and a property qualification that restricted the possession of a swan mark to certain landowners to distinguish their birds. Swan marks were devices taken from the family coat of arms of the owner and cut into the upper beak with a sharp knife; they were then registered in ‘swan rolls’. Once legally obtained by a grant from the Crown they became the absolute property of the owner.
Special swanning courts known as ‘swan motes’ were set up to enforce the laws. These courts also had the power to draw up regulations affecting swan-keeping in their area and settle disputes concerning ownership.
In 1494, Edward IV enacted ‘that no one could have a game of swans’ unless ‘he may dispend five marks a year freehold’.
Even today there is still a ‘Master of the Swans’ who is responsible to the Crown for the care of the royal swans and the general supervision of swan-keeping throughout England, the post dating from at least the fourteenth century.
Today, the swans on the River Thames have just three owners – the Queen herself and two City livery companies, the Dyers (single nick on the beak) and the Vintners (a nick on both sides of the beak). Royal swans are unmarked nowadays, so the Queen owns any strays. The annual marking of swans is called ‘swan upping’, or sometimes ‘swan hopping’, and has been carried out on the Thames for around 500 years, the ‘upping’ referring to taking the birds out of the water. In the eighteenth century this became an elaborate ceremony, with specially decorated boats and the Master of the Swans and his ‘swan-uppers’ dressed in ceremonial costumes. It takes place during the third week in July when the cygnets are about a month old and are considered old enough to be handled. The birds are lifted and counted, numbers recorded and given the same ownership mark as their mother. A final health check is done before returning them to the water.
Feudal laws are just the beginning of some of the strange laws to protect Old England. Next time the restriction of fun will be explored including drunkenness, cockfights and the outlawing of mince pies at Christmas!
The Strange Laws of Old England, Nigel Cawthorne