How to look for records of... Outlaws and outlawry in medieval and early modern England
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1. What was an outlaw?
An outlaw was a man who had literally been put outside the protection of the law. Only men over 14 could be outlawed. Women were said to be ‘waived’ rather than outlawed although the practical outcome was the same. Outlawry normally occurred as a consequence of a criminal or civil action, although the process could occasionally begin with a petition in parliament. Criminal outlawries arose from indictments for treason, rebellion, conspiracy or other serious felonies. Civil outlawries were generally proclaimed in cases of debt.
2. The declaration of outlawry
During the early medieval period, most outlawries were for criminal acts. A plaintiff would make a public accusation called an appeal, in the county court. These appeals, along with royal writs ordering (or exacting) the appearance of the defendant, were recorded by the coroner on his rolls (now in JUST 2).
By the late medieval period, the process of outlawry had expanded considerably to include both civil and criminal actions. Although the county court remained the institution in which outlawries were declared, the process of outlawry by appeal had been largely replaced by the issuing of writs of exigent from the central courts, either at Westminster or on circuit, which exacted the individual to appear in court or suffer the penalties.
If a defendant failed to appear in court, it was the sheriff’s duty to apprehend him. Before a declaration of outlawry, writs of capias were issued by the court directing the sheriff to arrest the individual (three successive in civil and minor criminal matters; one or two for treason, rebellion or homicide). If the sheriff still failed to find the defendant, the next step was to sue out a writ of exigent. This said that the defendant could not be found, did not have any goods in that county, and thus could not be attached (securities taken for his appearance) or distrained (goods seized to enforce his appearance). It directed the sheriff to make a proclamation at five successive county courts (in the case of London, at the Hustings), ordering the defendant’s appearance upon pain of outlawry. If he had still failed to appear by the fifth proclamation, he was then declared an outlaw.
Outlawries resulting from civil proceedings can be traced quite simply by searching the plea rolls (CP 40). However, assuming the individual was eventually pardoned, it is possible to save time by searching for the writ of certiorari which was addressed to the judges of Common Pleas requiring them to produce the record and process, together with the fact of the outlaw’s surrender to them, and his subsequent committal to the Fleet prison (C 88).
Criminal outlawries, on the other hand, are found on the eyre rolls which survive from the late twelfth to the mid-fourteenth centuries (JUST 1), the curia regis rolls (KB 26) and the coram rege rolls (KB 27).
On the curia regis and coram rege rolls, individuals outlawed at ‘suit of party’ are located on the plea side. Those outlawed at the ‘suit of the crown’ are on the crown side. The controlment rolls (KB 29) record outlawries at ‘suit of party’ and ‘suit of the crown’. By the fifteenth century these rolls, compiled annually, begin with writs of inquiry into the chattels of persons recently outlawed. They relate overwhelmingly to those outlawed at ‘suit of party’. There are, however, four specific rolls of outlaws at ‘suit of the crown’ for the reigns of Henry VI (KB 29/91), Edward IV (KB 29/113), Henry VII (KB 29/139) and Elizabeth I KB 29/220).
There are also outlawry rolls for the reigns of Henry IV and Henry V in E 389. These contain the names of outlaws sent into the Exchequer from the courts of Common Pleas and King’s Bench. The latter include outlaws at ‘suit of party’ and ‘suit of crown’.
3. Arrest, imprisonment and the seizure of goods
In instances of treason, rebellion or homicide, the lands and possessions of the individual would normally have been seized by the crown by the time a second writ of capias had been issued. In other cases, a new writ of capias utlagatum could be issued out of the courts of King’s Bench and Common Pleas, ordering the sheriff to apprehend the outlaw for not appearing, to keep him in custody until the day of return and then produce him in court. A special writ of capias utlagatum could also command the sheriff to seize possessions.
Many debt-related actions did not proceed to outlawry. A writ was obtained from Chancery ordering the sheriff to make an inquisition into the possessions of a defaulting debtor. Having returned this ‘extent’ (C 131 and C 239), a further writ was issued allowing the creditor to recover the sum owed. Once a case had resulted in outlawry, an inquisition was officially appointed to inquire what lands, goods and chattels the outlaw possessed. Some inquisitions can be found amongst Chancery: inquisitions miscellaneous (C 145). Accounts of outlaws’ goods can sometimes be found amongst the Sheriffs’ accounts (E 199) and Sheriffs’ accounts of seizures (E 379). For the 17th century they are recorded in outlawry books (E 172 and E 173). The results of the inquisition were then returned to the Exchequer. These can be traced amongst Exchequer extents and inquisitions (E 143) and in the ‘recorda’ section of the memoranda rolls (E 159 and E 368).
Lands which were forfeited escheated back to the crown and were consequently accounted for by escheators in each county. These are found on the Escheators’ enrolled accounts (E 357). The extents, inquisitions and valors of forfeited lands (E 142) includes documents from the early 13th to the mid 15th centuries, including documents relating to the Knights’ Templar and the ‘contrariants’.
Some isolated accounts of forfeited goods and lands of outlaws have also survived amongst King’s remembrancer: accounts various (E 101), enrolled foreign accounts (E 364) and ministers’ and receivers’ accounts (SC 6).
4. Reversing the outlawry
To reverse an outlawry the defendant had to appear in person before the court. It was possible to reverse the outlawry by pleading that an error had been committed in the proceedings in either the Court of Common Pleas or King’s Bench. A case could also be transferred from Common Pleas to King’s Bench.
Another way to reverse an outlawry was by pleading a pardon. Pardons for civil and criminal outlawries were commonly enrolled on the patent rolls (C 66). These often incorporate a brief précis of the crime committed as well.
To plead his pardon, the defendant first had to surrender himself to the Fleet or the Marshalsea of the King’s Bench. Having obtained his pardon, he would then present this to the court. In the Court of King’s Bench, pardons were usually entered on the crown side of the Coram Rege Rolls. The outlaw’s goods should then be restored to him subject to notification being sent to the Exchequer. Records relating to the restoration of lands and possessions are in the ‘recorda’ section of the memoranda rolls (E 159 and E 368). If an outlaw had been guilty of a serious felony or treason, a reversal could be obtained by petitioning parliament (C 65).
5. Palatine jurisdictions: Chester, Durham and Lancaster
A person outlawed in the Palatinates will be found amongst records of those jurisdictions. For outlawries in the Palatine of Cheshire look in the Eyre Rolls (CHES 17), Outlawry Rolls (CHES 27), the Chester County Court and Great Sessions Plea Rolls (CHES 29) and the Flint Justices’ Sessions Plea Rolls (CHES 30).
For outlawries for the Palatine of Lancaster, look in the Plea Rolls (PL 15) and Crown Court Miscellaneous Records (PL 28). Evidence of outlawries in Durham is in the Plea and Gaol Delivery Rolls (DURH 13). Outlaws from the Cinque Ports should be sought amongst the records of the individual ports held at the Centre for Kentish Studies, East Sussex Record Office, and the British Library. Names are often recorded in the Chamberlain’s Accounts where they have survived.
6. Further reading
WS Holdsworth, A History of English Law (3rd edition, 9 volumes, 1922 et seq)
J Bellamy, Crime and Public Order in England in the Later Middle Ages (1973)
M Blatcher, The Court of King’s Bench, 1450-1550 (1978)
M Carlin, London and Southwark Inventories 1316-1650
M Hastings, The Court of Common Pleas in the Fifteenth Century (Hamden, Connecticut, 1971)
RF Hunnisett, The Medieval Coroner (Cambridge, 1961)
ND Hurnard, The King’s Pardon for Homicide before AD 1307 (Oxford, 1969)
RC Palmer, The County Courts of Medieval England, 1150-1350 (Princeton, 1982)
RB Pugh, Imprisonment in Medieval England (Cambridge, 1968)
E Tomlins, Law Dictionary (2 volumes, 1820)