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Outside the law


During the course of the Middle Ages a system of law known as the common law developed in England. This simply meant laws common to the entire kingdom. Based primarily on precedent, the common lawGlossary - opens new window developed gradually over time. In the earlier part of the 12th century, the Leges Henrici Primi (c.1118) described a country with various legal codes - the law of Wessex, the law of Mercia, and the Danelaw. But it was not until the reign of Henry II (1154-89) that a coherent legal code came into being - the first step in what proved to be the royal monopolization of justice.
Claiming English citizenship, 1482 - opens new window
Claiming English citizenship, 1482
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Abjuring the realm - opens new window
Abjuring the realm
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Transcript

Evading justice

From the late 12th century onwards, a central feature of the legal system was the establishment of trial by jury. An individual who was apprehended or responded to a writ of summons would stand trial before 12 of his peers. Yet a fundamental problem remained - how to get an unwilling defendant into court. In particular, those who kept one step ahead of the authorities and reached a church were able to claim right of sanctuary. Certain foundations, such as Durham, Beverley and Beaulieu, offered permanent sanctuary; but defendants who sought refuge in a parish church were entitled to only 40 days' respite. After that time, they had to either surrender or abjure the realmGlossary - opens new window for ever. Other fugitives from justice simply evaded arrest or refused to give themselves up.

By the 14th and 15th centuries this 'mesne' or middle process, whereby steps were taken to get the defendant into court, had become a lengthy and protracted business. Take Sir Henry Bodrugan of Cornwall, for example. His criminal activities had been denounced in the 1459 Parliament. Orders were given for his arrest in June 1461, but following the YorkistGlossary - opens new window takeover he was able to establish himself as a valued royal servant.

 

Commission to apprehend Henry Bodrugan - opens new window
Commission to apprehend Henry Bodrugan
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Petition against Bodrugan - opens new window
Petition against Bodrugan
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Not that this moderated his behaviour. By 1473 his unpopularity had reached such a level that there was a flood of complaints against him in Parliament. He was subsequently attaintedGlossary - opens new window and outlawed. Yet the following year he was able to get that decision reversed, and it was only his support for Richard III that brought about his downfall.

Unequal treatment

Over time the common law became more sophisticated, but not all who resided in England were treated equally before the law. Under the early common lawGlossary - opens new window, aliens - those born outside the realm - had virtually no enforceable rights at all. Although aliens within the realm owed a temporary allegiance by virtue of their presence, they were not entitled to own land or bring actions in the courts. By the 15th century, this had been rectified and aliens were able to bring complaints in both local and central courts.

Act concerning 'Egyptians', 1530 - opens new window
Act concerning ‘Egyptians’, 1530
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Grant of alien subsidy to Edward IV, 1483 - opens new window
Grant of alien subsidy to Edward IV, 1483
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Nevertheless, distinctions remained. On the eve of the Hundred Years' War (1337-1453) the general unpopularity of England's growing community of foreign merchants and craftsmen resulted in an Act of Parliament (1335) that made a landmark distinction between natural-born subjects and aliens. The latter were defined as persons of a foreign nation or allegiance. Furthermore, the alien subsidyGlossary - opens new window grants of 1440 and 1483 subjected them to higher rates of taxation than English-born subjects.
During times of crisis and tension, suspicion of aliens increased. In some instances it even became necessary to prove English nationality - in the disputed borderlands between England and Scotland, for example. Also, measures aimed at repressing riots and controlling the behaviour of vagabonds were introduced.

 

Acts for the repressing of riots (1503) and the punishment of vagabonds (1572) - opens new window
Acts for the repressing of riots (1503)
and the punishment of vagabonds (1572)
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Elizabethan register of aliens, 1571 - opens new window
Elizabethan register of aliens, 1571
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The 16th century witnessed a growing concern with matters of law and order. As a result, the regulation of aliens intensified. In 1529 an Act of Parliament ratified a Star ChamberGlossary - opens new window decree requiring all aliens to swear allegiance to the king, and more detailed records of alien residents were maintained.

At the same time, English subjects who spread sedition, rumour or libel against the monarch found themselves liable to much harsher penalties. Towards the end of the 16th century there was great fear of foreign plots against the monarchy, and the penalties imposed on those found to be implicated were particularly severe.

 

Penalties for 'seditious words and rumours' against the queen, 1580-1 - opens new window
Penalties for 'seditious words and rumours' against the queen, 1580-1
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The treason trial of Patrick O'Collen, for conspiring to assassinate Queen Elizabeth - opens new window
The treason trial of Patrick O'Collen, for
conspiring to assassinate Queen Elizabeth
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A typical case is that of Patrick O'Collen, an Irishman serving in Sir William Stanley's Regiment in the Low Countries, who became embroiled in a plot to assassinate Queen Elizabeth. In 1594 he was tried and executed - but not until a confession had been extracted from him and details of other culprits had been divulged.

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