The Law of Treason in the English Border Counties in the Later Middle Ages

C. J. Neville

during the early years of the fourteenth century, when Edward I faced bitter resistance in his attempts to assert his overlordship of Scotland, and notorious during the 1320s, when Edward II sought to crush those of his subjects who opposed the rule. Under Edward III, and more notably in the 1340s, judicial construction on the charges of levying war against the king and accroaching the royal power continued to be the basis for accusations of treason in a wide variety of cases. It was the excessive use of this "royal thesis of treason" that eventually drove the commons to complain in 1348 that royal justices were defining as treason and accroachment offences which had not before been so interpreted, and to petition for a parliamentary declaration of precisely what constituted the latter.'2 The king refused on this occasion to accede to the commons' request and insisted that points of treason and accroachment should continue to be determined in individual judgments, as cases arose.

American Society for Legal History The Board of Trustees of the University of Illinois The Law of Treason in the English Border Counties in the Later Middle Ages Author(s): C. J. Neville Source: Law and History Review, Vol. 9, No. 1 (Spring, 1991), pp. 1-30 Published by: American Society for Legal History Stable URL: http://www.jstor.org/stable/743658 Accessed: 13-05-2015 17:57 UTC Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/ info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. American Society for Legal History and The Board of Trustees of the University of Illinois are collaborating with JSTOR to digitize, preserve and extend access to Law and History Review. http://www.jstor.org This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason in the English Border Counties in the Later Middle Ages C. J. NEVILLE In the parliamentheld at Leicesterin the springof 1414, King Henry V was confronted with a long list of grievanceson the part of the common folk of Northumberland,Cumberland,and Westmorland.A formal petition decried the contempt with which the terms of truces made with Scotlandand royal lettersof safe conduct were treated.The commons further complained that men of the liberties of Tynedale, Redesdale, and Hexham daily committed "many murders, treasons, homicides... robberies,and other misdeeds,"and that "some of the said persons shelterand supportmany people of Scotland,counselling and comforting [them] in their robberyand despoiling."Finally,they said, in contraventionof the terms of the truce, men of Scotland"also take them prisoner,keeping them ... until they make ransom of their own volition, all this with the aid, assent and comfort of the said persons so enfranchised."' The petition of 1414 was not the first presentedto the Crown in which the northernerslamented the conditions of well-nighperpetual war under which they lived. Ever since the outbreakof open conflict with Scotland at the end of the thirteenth century,representativesof the three bordershireshad regularlysought remediesin parliamentfor the terrible destruction and deprivationcaused by incessant Scottish raids.Most often these wereframedin the form of requestsfor financial compensation,exemption from taxation, or specialtrade concessions.2 The particularlyangrytone of the petition of 1414, however,prompted an unusually comprehensiveresponse. Two distinct, though related, remedies were offered: an act "against outrages in Tynedale and Hexham" and another act, "concerningbreachesof the truce."3 The first statute gave the royal justices of assize full authority to C. J. Neville is assistant professorof history,Dalhousie University. Law and HistoryReviewSpring 1991, Vol. 9, No. 1 ? 1991 by the Board of Trustees of the University of Illinois This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 2 Law and History Review outlaw criminal suspects in the northern liberties. These provisions greatlyheartenedthe northerners,for they broughtthese traditionally independentterritoriesfirmlywithin the purviewof the common law.4 The libertieshad long been havens for lawlesspersons from all across England, but especially from the border counties. Criminals who consorted with the king's Scottish enemies found their proximity and the legal immunity from royal agents that they afforded extremely useful;indeed, it has been said that to travel there "was as effectiveas fleeingto a foreignland."5In the middle yearsof the fourteenthcentury, an attempthad been made to rectifythe situationby means of a general extradition agreement made between King EdwardIII and Richard, bishop of Durham.It acknowledgedexplicitlythe frequencywith which felons from the counties of York, Northumberland,Cumberland,and Westmorlandfled to the liberty of Durham and required,under pain of forfeiture,that the bishop'ssheriffor coronerarrestall such criminals and deliver them to the royal officials of their county of origin, and vice versa.6The agreement,however,was made for six years only, the bishopbeingunwillingto permita morepermanentroyalencroachment on his jurisdiction,and by the early years of the fifteenthcentury,the problem posed by the liberties,both lay and ecclesiastical,once again became endemic. The act of 1414 undertookonce again to addressit effectively. The second act of 1414, however,was of greaterimportance,for it became the basis of novel measureson the part of the Crownto bring to justice the English inhabitantsof the borderregion who consorted in crime with the king's Scottish enemies. The statute took the un- precedentedstep of declaringall breachesof the truce and all violations of royal lettersof safe conduct as high treason,"done againstthe king's crown and his dignity." Henceforth, such offences were liable to forfeitureand to the painful punishment traditionallymeted out to traitors.7This article examines why the English government came to enact such decisive measuresagainstborderoffenders.It posits two distinctstagesin the historyof indictmentsfor treasonin cases of cross- bordercrimes in the centuryor so before 1414;it seeks also to explain why, in the end, the statute concerningmarch treason proved largely ineffective. While the act representedthe culmination of a decades- long effort on the part of the Crown to impose the most severe of sanctions on seditiousbehavior,it became evident almost immediately that royal officialswere inadequatelyempoweredto ensure the proper functioning of the statute. Little was done to remedy the defect, and the borderers were in turn compelled both to circumvent and to interpretliberallyits troublesomeprovisions. This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 3 The source material upon which this study is principallybased is the largebody of recordsgeneratedby the work of the justices itinerant in the northern border counties during the fourteenth and fifteenth centuries,that is, assize and gaol deliveryrolls;8it is supplementedby the plentiful recordsof Chancery.9A surveyof the enrollmentsof trials held at sessions of assize yielded a substantialcollection of indictments for treasonlaid againstnorthernerswho engagedin a varietyof criminal activities with subjects of the Scots crown, altogether some seventy indictments. The number is remarkable,for the chargeof treason was not one broughtlightly. The formulationof a general and comprehensivelaw of treason by the English governmentin the mid-fourteenthcentury allowed north- erners to impose harsh penalties on those who offended them most grievously.In the second half of the century,localjuries of presentment workedconsciouslyto transformcross-borderfelonies(thatis, incidents of crime involving the king's Scottish enemies) into more onerous, treasonableoffences. Their effortsmet with some limited success, but they did little to ease the generallevel of disorderin the region. In the last decadeof the fourteenthcenturyand the earlyyearsof the fifteenth, there were increasinglyangrycalls in parliamentfor a concertedeffort by the Crown to deal effectively with march-relatedcrime. It was intendedthat the two acts of 1414, but especiallythat which concerned truce-breaking,would provide a solution to the problem; the one procedural,the other substantive. Treason in Englandbefore 1352 The greatstatuteof treasonsof 1352 is widely acknowledgedby legal historians as "the most significant formulation of principles in the English law of treason";1 certainly, later medieval elaborations of treasonableoffences invariablyreferredto this act. J. G. Bellamy has shown that the statute was the result of both long-termdevelopments in English constitutional law and of immediate grievancesexpressed by the commons in parliament."Before 1352, thereexistedno statutory definitionof treason;more particularly,the king'sjusticesenjoyedsome latitude in distinguishingbetween acts that were merely felonious, and those which constitutedlese majeste.Accusationsof levyingwaragainst the king or of usurpingthe royal power, for example, were instigated by the Crown,and grievousoffendersmight be convictedon the "king's record,"that is, simply on the basis of their infamy. The use of this procedure to forfeit and sentence rebels to death became common This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 4 Law and History Review duringthe early years of the fourteenthcentury,when EdwardI faced bitter resistancein his attemptsto asserthis overlordshipof Scotland, and notorious duringthe 1320s, when EdwardII soughtto crushthose of his subjects who opposed the rule. Under EdwardIII, and more notably in the 1340s, judicial constructionon the chargesof levying war againstthe king and accroachingthe royal power continued to be the basis for accusationsof treason in a wide variety of cases. It was the excessiveuse of this "royalthesis of treason"that eventuallydrove the commons to complain in 1348 that royaljustices were definingas treason and accroachment offences which had not before been so interpreted,and to petition for a parliamentarydeclarationof precisely what constituted the latter.'2The king refused on this occasion to accede to the commons' request and insisted that points of treason and accroachment should continue to be determined in individual judgments, as cases arose. Five yearslater,the commons remainedunsatisfiedwith the Crown's practiceof extendingthe scope of treasonto offencesthat they felt had little to do with accroachingthe royal power.In 1352 they noted again that in recent years the royaljustices "have been adjudgingpersonsas traitorsfor divers causes unknown to the commons as treason,"and asked that the king "declare the points of treason in this present parliament."'3This time EdwardIII complied, and the result was the statute that was to shape the law of treason for centuries to come. Bellamy has noted the irony that characterizedthe legislation. The determinationof the Crown and its judicial servantsin the 1340s and early '50s to maintain a high level of law and order was apparentin their attempt to extend the scope of treason by judicial construction to a wide variety of offences. But when they tried in parliamentto entrench current practice in statute law, they succeeded only in un- derminingthe royal prerogative,for the legislationof 1352 represented, in fact, a more narrowinterpretationof treason than had previously obtained.14 The wish on the part of most Englishsubjectsin the yearspreceding 1352 for a rational,reasonableand, above all, a conservativedefinition of treason is not so evident in the northernregion. Here, the common folk labored in the shadow of a ferocious enemy; here, they were the weary victims of regular,and sometimes predictable,Scottish raids, both large and small. The precariousliving conditions in the border counties and the intolerancefelt toward those who sympathizedwith the enemy are strikinglyillustratedin severalindictmentslaid against Englishmenbelieved to have been consortingin crime with the Scots. In 1345, for example, the justices of assize sitting in Carlisle tried This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 5 several cases in which the intention of the indictingjuries to suggest treasonablecollusion with the enemy is clear.John, son of the tailor, was accused of having received known Scottish thieves in his home, and of having led them and a man they had taken prisoneracrossthe border to safety.15The sessions of 1345 were not the first time John had appearedbefore the justices of assize: Only a year earlierhe had been accusedof being an active memberof the band which had carried off the prisoner.16The second indictment, profferedso soon after the first,indicatesthat his neighborswere determinedto pursueand punish him. At the same sessions another man was indicted for receivingthese same notoriousScottishmalefactors,this time afterthey had committed a double murder,and of receiving two other offenders"who live in Scotland in the fealty of David de Bruce." One John Corour was accused of having receivedhis felonious brother,knowing the latterto be "living in the fealty of David de Bruce.'7 Still anotherindictment, though it did not include the specific adverbproditorie(treasonably), clearly suggested that the accused was believed to have acted in a treasonable manner. In 1347, William Calnerd of Lothian, a Scot, admitted to being a felon and an enemy of the king of England. He stated that he had been born in Scotland, but as a young man had been brought up in county Durham, where he had become the man of Sir David de Fishburn,a local notable. In 1346, however,he had returned to Scotland, and while there had given his fealty to David Bruce (King David II). He then accompanied Bruce on a raid into England, where he "burned houses and killed the king of England's men." Why William Calnerdadmitted his guilt is unknown-confes- sions in court were extremely rare because of the conviction which inevitablyfollowedthem. Perhapshe hoped that he would be pardoned; more probably,he expected that his Scottish allegiancewould ensure at least a postponementof his case, duringwhichtime he might attempt an escape. The jury and the presidingjustices felt otherwise.Calnerd was condemnedto be drawnto the gallowsand hanged,the punishment traditionallyreservedfor convicted traitors.'8 The cases cited above revealthat long beforethe question of treason was addressedby the Englishcommunity in generalin parliament,the men of the northwereworkingtowardsthe identificationand definition of offenceswhich they consideredprejudicialboth to their own interests and to the dignity of the Crown. But their effortswere motivated by considerationsvery different from those that drove English subjects elsewhereto call for judicial reform. One type of cross-borderoffence in particularmade the unambiguousdeclarationof treasonableactivity This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 6 Law and History Review imperative.This was the holding to ransom of kidnappedEnglishmen. Currentlegal theory held that only a sovereignprince might authorize a "just" or public war. Thus, any warlike activities undertakenon behalf of a person other than the king suggested the illegal and treasonableusurpationor arrogationof the royal power.19In 1305, for example, William Wallacehad been condemned for having appeared before his liege lord, Edward I, "with banners displayed, in mortal war."20 Less than two decades later, Thomas of Lancasterwas said to have ridden about the countryside against Edward II cum vexillis explicatis.21Accordingto this same theory,the right to take spoil and to hold men to ransom also belonged exclusivelyto the king. In fact, legal practice in cases of ransom appears to have varied before the enactment of the statute of treasons. In 1347, Sir John Gerbergewas sentenced to be drawn and hanged for having ridden along the king's highway clad in armor with his sword in his hand, and for having taken and held a merchantof Lincoln until the latterpaid over a large sum of money in ransom. The indictment charged that Gerberge "usurpedto himself, against his allegiance... the power belongingto the lord king, to the manifest prejudiceand sedition of the king and his crown."22 The justicesof King'sBenchwho presidedover Gerberge's trial interpretedhis generalconduct as indicativeof an intent to usurp the royal power, though it is uncertainpreciselywhich of his crimes, ridingin manner of war or holding the merchantto ransom,led them to convict him of treason. The indictmentsand appealsof ransom-takingheardby royaljustices at sessions of gaol delivery in the border counties show that, before 1352 at least, it was difficult,by judicial constructionalone, to attribute treasonablemotives to a suspect who was accused of the sole offence of taking and holding his fellow Englishmento ransom. The attempt was nonetheless made. At the sessions convened in Carlisle in the springand summer of 1344, five men stood trial for this offence. Two were accused by a convicted felon who had turned approver,23 while three others were indicted before the sheriffon his tourn. John Crag and John de Wardalewere each accusedof having assistedone Robert Brokenhouseand several of his Scottish accomplicesto carry off two unfortunate Englishmen, of having led the abductorsto the border, and of having sharedin the sum paid over in ransom.24John, son of the tailor of Walton, similarlyparticipatedin the kidnappingof one Adam Nages and was given a portion of the ransom.25Anothersuspect appearsto have acted alone in the ransomingof an unlucky resident of InglewoodForest,26while the last compoundedhis crimes of abduc- This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 7 tion and ransom-takingby burglingthe home of his prisonerand killing the victim's wife in the process.27In each of these cases, the approver and the jurors of presentmentshowed little hesitation in stressingthe usurpationof royal power representedby the ransom-taking,28 but in none of them did the royaljustices subsequentlyinterpretthese actions as such, and none of the accused was found guilty of treason. When Sir John Gerbergewas convicted in King's Bench for a similaroffence three years later, the Crown'shighestjudicial authoritieswere willing to interpretexisting laws far more broadlythan local justices of assize had been preparedto do. The conservativenessof the Crown'snorthern agents in 1344 was perhaps,therefore,understandable,but it was also at odds with the sentiment of local jurors. The statute of treasonsof 1352 providedthe northernerswith more trustworthyand effective means of defining ransom-takingas a trea- sonable offence. More generally,it provided them with a solid basis upon which to take action againstthose of their fellows who persisted in consorting with the Scots in crimes of any sort. After 1352, indictments for treason begin to appear with some regularityin the surviving legal records of the border counties. Convictions, although never frequent, were henceforth also more smoothly secured against the most notorious offenders. March-relatedTreason in the Years 1352-1414 The act of 1352 defined as treason any crime directed against the king's person or his regality,and within this definition there fell a variety of offences. These included activities such as tamperingwith the money of England,the slaying of high officialsof the Crown, and attempts against the lives of the king or his immediate family. In addition, the statute declaredas high treason any offence in which "a man do levy war against our lord the king in his realm, or be an adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere,and thereof be provablyattaint of open deed by people of his condition... ."29 This last section of the act came to provide the bordererswith the statutoryjustificationto deal with exceptionallygrievouscases of cross- border crime. Henceforth, the clause concerning the levying of war would be aplied to cases of ransom-taking;similarly,the generalclause concerning adherence to the king's enemies came to include those Englishmenwho participatedin crime with the Scots. Indeed, in the northerncounties, after 1352 indictments of treason in the courts of assize came to be reservedalmost exclusiveley to incidents of cross- This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 8 Law and History Review border crime.30Clearly,such offences were of paramountconcern to the borderers.Even the clause that required that cases of doubtful treasonbe referredto parliamentfor discussionand adjudicationfailed to discouragethem.31They had neither the wish nor the need to use it until early in the fifteenthcentury,when the level of disordercaused by such incidents compelled them to seek statutoryaid in parliament. Juriesof presentmentin the northerncounties soon made use of the clause of the new act that made adhering to the king's enemies a treasonableoffence. In this respect, they demonstratedan assurance and confidence not shared by all, for elsewherein England cases of treason tried in the local courts in the years immediately after 1352 were concerned largely with the more clearly defined money-related offences(notably counterfeitingand the introductionof false coin into the kingdom);activities, moreover,which had traditionallybeen con- struedas treason.32As earlyas 1354, John Kerrokand ThomasHumple were indicted for receiving and abetting William Small, "a known enemy of the king,"in his abduction of Alan Nitishow.33The charges laid againsta chaplainin Cumberlandin 1356 wereeven more explicit: John June was said to have adheredto the Scots, enemies of the king, "and he remained in the faith and allegianceof the Scots for a long time."34 The 1350s witnesseda steady,but continued,confidenceof northern jurors and justices in the application of judicial constructionto the matter of treason. A case prosecutedby the Crown in 1357 provided them with a further precedent upon which to base indictments of treason. In that year,the king issued a specialcommission of oyer and terminer to several noblemen of Northumberlandto investigate the activities of four Englishmenwho were alleged to have "traitorously adheredto the Scots againstthe king and have many times perpetrated treasons,plunderings,homicides,felonies and evils in the realm,to the danger and destructionof England."35 As a result of the inquest one of the suspects,WilliamPrendergest,was formallyindictedfor treason.36 The case encouragedthe borderersto think that they might continue to prosecuteincidentsof seriouscross-bordercrimeunderthe provisions of the treasons act. In August, 1359, the justices assigned to deliver the royal gaol at Carlisletried a man whose indictmentclearlybespoke the determination of the jury of presentment to imply treasonable behavior.John de Ayton was accused of stealinga total of thirty-eight oxen and cows and forty other animals;it was emphasizedthat he was "a liege man of the lord king and he seditiouslyadheredto the Scottish enemies of the king contraryto his said faith and allegiance"37Much to their distress,however,the jurorswere not given the opportunityto This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 9 pronounceon the veracityof the charges.Ayton claimedto be a subject of the Scots king, then produceda letterfrom Thomas de Lacy,warden of WestMarch,in which all the inhabitantsof Liddesdalewerepromised special protectionfrom "evil, grievanceor disturbance,so long as they dwell there in peace." He stated that as a Scot and an inhabitant of this special region,which lay extra regnumAngliae in partibusScotiae, he had been illegally seized. The presidingjustices, however,sided with the jury. They dismissed the warden's letter and asked the suspect once again to answer the chargeslaid againsthim. Ayton realizedthat his position was becoming untenable;his response to the justices' question was a plea of benefit of clergy.He produced a second letter, this one from Bishop Gilbert of Carlisle,stating that the accused was indeed a clerk. By this time, both justices and jurors were beginning to lose patience with the prisoner.The jury reiteratedits opinion that John de Ayton "is no Scotsman, but an Englishmanborn in the vill of Ayton, and contrary to his allegiancehe seditiouslyadheredto the Scottish enemies and is guilty of the felonies of which he is accused."The justices, uncertain whetherto releasethe man into the custody of the ordinary,or to pass sentence on him, remitted him to gaol in the custody of the sheriff while they conductedan investigationinto his antecedents.Some twelve months later another panel of justices was still unable to pronounce judgment on the troublesome case, and Ayton was once again com- mitted to gaol.38Unfortunately,his name disappearsfrom record at this time, and his ultimate fate is unknown. The precedentset in 1357 in the indictment for treason laid against William de Prendergestand the frustratingcase of John de Ayton stiffenedthe resolve of the bordererswho were called to act as jurors of presentment.They were,afterall, the chief victimsof the depredations of Scottish criminals and of those Englishmen who consorted with them. A clear indictment for treason in a case of border-relatedcrime was profferedat the sessions of gaol delivery held at Newcastle-upon- Tyne in August 1362. The justices heard that "John Bell... for three years withdrew from England into Scotland, adhering there to the enemies of the king, and he has been living there now for two years." Furthermore,John was alleged to have ridden into Northumberland "armed for war as an enemy and traitor of the lord king" in the company of two Scotsmen,wherehe proceededto steal two maresand to bur "feloniouslyand treasonably"the house of one ThomasPorter.39 After 1362, indictments for treason in cases of border-relatedcrime are no longer rarities in the legal records of the northern counties. They were presented in several cases of theft (where Englishmen This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 10 Law and History Review consortedin crime with Scotsmen),and in instancesin which English- men were accusedof receivingknown thievesand abductors.40 In 1365, a charge of treasonablecollusion with the Scots was made againstthe abbot and convent of Melrosebecause,"underthe guise of need,"they purchasedvictuals and other goods from the enemy.41 The peasants'revolt that swept across much of southernEnglandin 1381 exerted an importantinfluence on the interpretationof treason. The widespreaddestructionand death caused by maraudingbands of peasants and their threat to royal authoritymoved the Crown to add to the definition of treason a wide variety of offences committed by the rebels,includingthe murderof men loyal to the king,the destruction of their houses, and the giving of aid or assistanceto evildoers.In the months after the suppressionof the revolt,jurors of presentmentand trial all over England"werehappyto call treasonwhat seemedto them to be treason."42 A similar willingnessto interpretsome offences in a particularlyharsh light was also manifestedin the northernshires in the 1380s and '90s, but its causes were unique to the borderregion. In the late 1370s, disorderin the north approacheda chaotic level. The death of EdwardIII and the successionof his young grandsonas King Richard II ushered in a decade of cross-borderviolence more virulent than had been known for almost a century. Chroniclers bemoaned the tragic consequences of devastating Scottish raids in which houses, farms,and monasterieswere ransackedand burntto the ground, animals were carriedoff, and men were abductedand held to ransom or slaughteredoutright.43Petitions to parliamenton the part of the northernersincreased greatly in number, and the desperation that underlaythem became marked. In 1376, 1377, 1378, and 1379, for example, the commons of Carlislepetitionedfor moneys to repair the defences of their town and of other bordercastles, said to be "so ruined and so enfeebled that within them there is to be had neither succour nor defence against the enemy."44In 1377, the commons requestedthat all enemy aliens (notably French and Scottish holders of benefices)be forced to leave the kingdom, because their rents and profitswere being subvertedto the use of the enemy,and becausethey weresuspectedof beingspies.45They petitionedconstantlyto be excused from payingcustoms, ferms,and taxes, or to be awardedcompensation for their dire poverty.46Most often, they implored the king to ordain that all able-bodiedknightsof the borderregionbe requiredto remain there for its defence.47 The markedincreasein cross-borderhostilitiesforced the Crown to focus its attention more closely on the northern counties and to implement measures for reducing,or at least containing, the level of This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 11 disorder in the north. In 1373, the wardens of the marches were empoweredto arrangewith their Scottishcounterpartsfor regular"days of march,"where disputes on the part of both sides might be formally aired and redressdiscussed.48The inclusion of this power as a regular featureof the wardens'commissions was accompaniedby a concerted effort on the part of the Crown to effect a series of lasting truces with Scotland.49In 1386, the wardens were further authorizedto arrange and renew truces for a period up to two months.50The Crown'sefforts were clearly designed to ensure border peace and to facilitate cordial diplomatic exchanges with Scotland. It was hoped that occasional instances of cross-bordercrime would no longer entail the wide-scale raids of retaliation,which had to date characterizedrelationsbetween the kingdoms in the northerncounties. The governmentachievedonly limitedsuccess.In 1379,the commons complainedin parliamentthat while "all personsof Scotlandwho were taken riding in manner of war (chivachantza fere de guerre) and otherwisetrespassingin England... have been deliveredquit of ransom by virtue of the ... truce; now, divers English persons lately taken by the Scots are some ransomed and some detained in prison, because they will not agree to make ransom."51 They requestedthat the terms of the currenttrucethat forbadethe takingof ransombe more rigorously enforced. They were temporarilymollified when the king promised that the matter would be raised at a forthcomingday of truce, "on which day, if it please God, reasonable remedy shall be ordained." Throughoutthe 1380s,the problemof cross-bordercrimewas discussed at the occasional days of march convened on the borders,and more generallyin the formal meetings between Englishand Scottishambas- sadors where terms of truce were arranged.52 But because the practice of holding international tribunals such as the days of march on a regularbasis was relativelyrecent,the Crownwas compelledto depend largely on existing judicial resources to settle disputes. Acting on indictmentsor informationlaid beforeit by individualparties,a stream of special commissions issued from Chanceryto the northernwardens and to other local noblemen appointed to keep the truce, directing them to arrest,imprison, and try suspectsidentifiedby their victims.53 It is against this backgroundof profound tension and distressthat the borderersbegan to make more determined use of the clauses of the treasons statute of 1352 that related to the levying of war within the realm and adheringto the king's enemies. In August, 1382, trial jurors and justices assembledat Newcastle-upon-Tynewere presented with the following indictment:"John Mawer of Benley taken because he robbedJohn Clerk of Alnwick of goods and chattelsworth 12s and This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 12 Law and History Review of 6s 8d in minted coin, on the Saturdaynext after the Nativity of Saint John the Baptist,in the fourthyear of the reign of King Richard II. And also [taken]becausehe is a common thief, traitorand adherent of the Scottish enemies of the lord king."54 Another group of jurors empanelled in Carlisle at the same time showed themselves even more willing to extend the scope of treason. In August, 1382, they proffereda series of indictments against one Richard Osfery,formerly under-sheriffof Cumberland.Among other offences, Osfery was accused of having aided, abetted, and been paid the handsome sum of twenty pounds for the escape from gaol on two separate occasions of a notorious criminal known also to be a firm adherent of the Scots.55A charge of being a common receiver and abettor of the king's Scottish enemies was again tried in sessions held in Carlisle in 1384.56 Despite the sealing of a comprehensive truce in 1389,57Scottish incursions into the English border lands continued, often with the connivance of Englishaccomplices.Indeed,the numberof cross-border raids increaseddramaticallyduring the 1390s, and the taking of men for ransom reached virtually epidemic proportions.In 1390, a com- mission was empanelled to investigate an incident in which a royal agent, Sir William de la Vale,and severalof his kinsmenwere assaulted in his home and taken prisonerby a band of evildoers. The captors threatened to take them to Scotland "unless they would surren- der... which to save their own lives they did."58In 1393, another specialcommissionempowereda royalofficialto arrestthe largenumber of Scots said to be dwelling in the castles and fortifiedtowns of the north for no good purpose.59At the local level, juries of presentment and of trial continued to deal with cases of allegedransom-takingwith the utmost severity. At the sessions of gaol delivery convened in Newcastle-upon-Tynein the late summer of 1390, the justices were presented with no fewer than eleven indictments for treason, ten of which concernedthe holding of men to ransom. The accusedEnglish- men had all acted in consort with men from Scotland; indeed, the indictments suggest that some notorious malefactorshad established well-organizednetworksof Scottish friendswhose homes were located hard by the rivers or other geographicalfeatures that delimited the boundaries of the kingdoms, and whose families were ready at any moment to accept and house Englishprisonersuntil the latterpaid for their release. Thomas of Ledale was just such a man. After having managed to evade the law for some five years, he was finally appre- hended, gaoled, then brought to trial in 1398. No fewer than five indictmentswere laid againsthim. Thomas and severalScottishcronies This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 13 were said to have killed, "feloniously and treasonablyin manner of war," one John de Thirwall, senior, and of having stolen and sold several horses and other goods belongingto the victim. On five other separateoccasions Thomas and the same Scottish friends "feloniously and treasonably in manner of war" came to three different towns, where they abducted several men, stole their possessions,and carried the hapless victims back across the border to various refuges, where they were held until they made ransom.60 The other indictments for treason laid against kidnappersmention the collusion of the Scots: The accused is said to have met his accomplices on the border,led them to their intended victims (whose possessionsand movablewealthhad presumablybeen casedin advance), then escortedthem backto Scotland.61The Englishcriminals'familiarity with the paths and byways leading to border crossings and their knowledge of the movements of royal officials such as sheriffs and wardens,combined to make these criminal outings a success. Throughout the 1390s and the early 1400s, juries of presentment continued to use the statute of 1352 in cases of especiallyoutrageous crime. Indictments for treason were laid on several occasions against men who held victims to ransom and, beginningin the 1390s, against thieves who committed their misdeeds in the company of Scottish accomplices.62It is hardlysurprisingthat such crimeswere viewedwith such opprobriumby the juries of presentment.In a region of England alreadyravagedby frequentincursionsof Scottishraidingparties(and, in the firstyearsof the fifteenthcentury,furtherdisruptedby the rivalry for control of the north between the Percies and the Nevilles),63the prospect of furtherimpoverishmentat the hands of lowly kidnappers and thieves was simply too insultingto be treatedin a rationalor sober manner. As indictments for treason in cases of cross-borderoffence increased in number, the resolve of both trial jurors and justices of assize stiffened when they were affordedthe opportunityto try and punish especiallyinfamous suspects.In 1390, the notoriouskidnapper Thomas Ledalewas found guilty of a chargeof treasonlevied in respect of a border-relatedoffence. He was sentenced to the painful death reservedfor convicted traitors:He was to be drawnto the gallowsand hanged.64An old woman accused of having lit a beacon to warn her Scottish friends of an approachingEnglish force was found guilty by the jury.She was saved from death at the stakeonly becausethe justices found that she was not a subjectof the Englishcrown and thus outside their jurisdiction.65Beginning in the 1390s, convictions in cases of border-relatedtreason,as distinctfrom indictments,were securedmore frequentlythan before.66 This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 14 Law and History Review During the first half of the fifteenth century,the scope of treason was extendedon severaloccasionsby means of parliamentarystatutes. These fifteenth-centuryelaborationswere,forthe most part,concessions granted on the part of the Crown in response to particular and immediategrievancesvoiced by the commons.67One of the two statutes of 1414 was enacted in large part as a result of this sort of pressure. The petition that complained of the immunity from the law afforded by the northernlibertieswas triggeredby the unsatisfactoryoutcome of the trial of a notoriouscriminal,Robertde Hodle.68In 1410, Robert was accused of having joined a gang of Scottish thieves led by the equally infamous Robert Hunter and of having treasonablyled his confederatesto the vill of Bingold, where severalgrocerswere robbed. He was furtherreputedto be a "common leader into Englandof the said RobertHunterand of otherScots."The tone of Robert'sindictment unmistakablysuggeststhe censureof the presentingjury,but the suspect was able to avoid trial when he claimed that "the place where the alleged crime is said to have occurredis outside the county of North- umberlandand within the libertyof Hexham."The justiceswere forced to concede that their jurisdictiondid not extend over the inhabitants of the liberty,and Robert was permittedto leave the sessions sine die, no doubt to carryon his infamousactivities.The frequencywith which men like Robert de Hodle were able to benefit from the traditional exemptions enjoyed by the franchises is reflected in the commons' petition on the matterpresentedin the parliamentof 1414, and by the favorableresponsemade by the Crown. The Statute of March Treason of 1414 and Its Effect The second border-relatedstatuteof 1414, which dealt with breaches of the truce, did not representa hurriedresponse by the king to an immediate outcry.In this respect it was different,both in nature and intent, from other revisions to the act of treasons effected by the Lancastriankings. The decision to include offencescommitted against the truce and violations of letters of safe conduct within the scope of treason was prompted by the reluctant recognition by the English government of its inability to deal with the continued incidence of border-relatedcrime in the north, in spite of its policy of diplomatic rapprochementwith the Scots. While the wardensof the two kingdoms had met with increasingregularitysince the mid-1390s, the disputes discussed in these forums tended to involve persons of wealth or property.69For the ordinaryinhabitantof the marches,who had only a few meagerpossessionsto lose, the lengthy and elaboratediplomatic This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 15 exchanges that characterizedthe days of march were of little or no use.70King Henry IV's son, John of Lancaster,who lived in the north as warden of the East March between 1404 and 1414, admitted as much. In the winter of 1405-6, he wrote to the council that incidents of robbery, cattle-raiding,and ransom-takingoccurred daily in the march, for which the common folk could neither expect nor obtain redress from the Scots.71In the summer of 1407, he wrote again to report that the level of lawlessnessin the north was so dangerously high that he fearedopen war was on the vergeof erupting.72 Five years later,Lancasterwas still complainingthat "the mischiefsand distresses of the East March... which have been clearly and publicly declared to parliamentand council, as well by bills and petitions as by word of mouth, have not yet been remedied."In spite of the meetingsbetween Scottish and English wardens, there was clearly lacking an effective system for enforcing observanceof truces. It was Lancaster'sopinion that the defect was causing untold misery and sufferingsto the inhab- itants of the march.73 The act of 1414 concerning truce-breakingthus representedthe Crown's decision to alter its northern policy and to take new and decisive action in the matter of border-relatedcrime.74The proposed changesto the law of treason were the more easily consideredas there existed reliableprecedentfor extendingthe scope of treasonto include at least the crime of violating letters of safe conduct.75Moreover,it was customary on the Continent to treat this offence, as well as that of breakingthe truce, as infringementsof the king'sdignity or majesty. The statute,then, also representeda conscious effortby King Henry V to bring English practice into line with current continental usage.76 Finally,in conjunctionwith the new legislationconcerningthe northern liberties,it would ensure the prosecutionof as many borderoffenders as possible. The provisionsof the new act were both numerousand comprehen- sive. All manslaughters,robberies,and "spoliations"perpetratedagainst, or in concertwith, the Scots duringtimes of truce,or againstthe bearer of royal letters of safe conduct, were henceforthto be adjudgedand prosecutedas treason,whetherthey werecommittedon land (including the liberties)or on the high sea. Conservatorsof the truce were to be appointed on a regular basis to hear and determine any complaint concerninga breachof the truce or of safe conduct. The commissions appointingthe conservatorswere to include two men "learnedin the law."As with all other treasonableoffences, conviction was to entail forfeitureto the Crown of the chattels and tenements of the guilty parties.77 This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 16 Law and History Review Had it been more carefully drafted, the statute concerning truce- breakingmight have given the wardensof the marchesand conservators the legal apparatusfor which John of Lancasterhad campaignedso diligently.It might also have provided the inhabitantsof the border shireswith the judicial solution that they themselveshad been working towardsince the mid-fourteenthcentury.Instead,its implicationswere not foreseen, and the act came to afford all parties only partial satisfaction.Alreadyin 1415 the commons called in parliamentfor the annulment of the legislation. They pointed out that the Crown had neglected to include specifically in the wardens' and conservators' commissions the power to hear and determine treasonable causes. Therefore, these officials were now, more than ever before, unable either to give redressto injuredScottishparties,or to seek it on behalf of their fellow Englishmen.78 The months following the enactment of the statute saw conditions in the north degenerateto a level of disorderunknown even in the 1390s. The rolls of the justices of assize, the recordsof Chancery,and the texts of petitions submitted to parliament attest the immensely increasedopportunitiesfor crime providedthe Scots and their English accomplices by the deficiencies of the act, and its failure to ensure adequate punishment for such offenders.The gravity of the situation was bitterly resented,and its irony was not lost on the commons. In 1415 the duke of Bedford (presiding over parliament on behalf of Henry V) prevaricated,promisingonly to referthe matterto the king at some future time. Another,more forcefulpetition was presentedin the parliamentconvened in 1416. Here, the commons reiteratedtheir grievance that "no matter how greatly the subjects of the king are offendedagainst,"they could not obtainremedy,forthe faultylegislation of 1414 enabled the king's enemies to "aggrievethe loyal lieges of the king, by selling some of them, and taking some of them prisoner,and also takingtheir goods and chattels."79 This time, the Crownresponded more favorably,though it was not disposedto jettison the act altogether. Instead, the Crown agreed to permit victims who proved unable to obtain redress from the Scots to apply to the warden for letters of marque.80The proposalmet with grudgingapprovalfrom the dispos- sessed, but was clearly not designed to addressor reduce the general level of disorderin the north. The clauses in the act of 1414 and its subsequentrevision, which relatedto the procedurefor prosecutingbreachesof the truce, were ill- fitted to deal with the everydaygrievancesof the common folk of the borderregion. What was needed was a simple, effective,and unambig- uous procedurewherebyEnglishmenwho consortedin crime with the This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 17 king's Scottish enemies might be apprehended and punished. The complex and lengthyproceedingsundertakenby the wardensin formal days of march provided little real satisfactionto anyone but the most influential northernlords. When repeatedpleas for annulment of the statuteor the reformof the wardens'powerscontinuedto go unheeded,81 the inhabitants of the north turned back to the legal tribunals that were still readily availableto them, and which had in the past proved trustworthy:the sessionsof gaol deliverythat wereheld almost annually in the shire towns. Juries of presentmentstill used the clauses of the treasons act of 1352 in cases of cross-bordercrime, because such offences were by then widely tried at common law. The northerners themselves had created a substantialbody of precedent over the last half century. It was only when the circumstancessurroundingsuch crimesmade it more appropriateor advisableto definethem as breaches of the truce that the provisions of the more recent statute were used. Even then, this legislation was used only reluctantly,and the clauses requiringspecialproceduralpracticesweretacitlyoverlookedby justices and juries alike. Thus, the adjudicationof border-relatedtreasonswas quietly but firmly assumed into common law procedure. In sessions of gaol delivery held in the northerncounties between 1419 and 1446, thirty-one indictments for treason were presentedto the justices of assize for determination.They reveal a tendency of the juries of presentmentto apply whichever statute seemed more perti- nent-and more likely to securea verdictof guilt. Thus, in 1419, John Jay was tried on chargesof having "convenedin treasonablefashion" in Newcastle-upon-Tynewith William Faure,a Scottish enemy of the king, where they communicatedwith anotherScotsmanwho was being held in gaol there. Jay was alleged to have divulged to the prisoner "varioustreasonablethings,"including "the counsel of the lord king" (perhapsnews of recent discussions in council). He was also accused of having treasonablysold two lengths of woolen cloth to a Scottish enemy of the king, contrary to an ordinance of the East March prohibitingsuch activity.His indictmentconcludes:"Andthe said John is a common traderwith the Scottish enemies of the king contraryto the said ordinance."82 Two other men were tried at the same sessions on similar charges. These indictments all suggest that the juries of presentment had in mind primarily the offence of adhering to the king's enemies, declared treason in the statute of 1352, and only secondarilythat of contraveningordinancesmade duringa recenttruce, which might be interpretedas treason according to the more recent act of 1414.83In the sessions held in Newcastle-upon-Tynein 1421, 1423, 1424, 1426, and 1427, sixteen indictments for treason were This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 18 Law and History Review presentedto the justicesof gaol delivery.They showa distinctinclination of the presentingjuries to rely chiefly on the fourteenth-centuryact. Only when it was deemed necessaryor preferabledid they rely on the more recent legislation. Chargesof ransom-taking,for example, were clearlyintended to recall the provisionsof the treasonsact of 1352. In an indictment of 1427, the intended insult to the king's dignity was made explicit by the allegation that the kidnapperhad detained his victim in prison for some four weeks until the latter agreedto redeem himself.84(The power to imprisonwas one reservedto the king or his licensed agents.) It was sometimes useful, however,to add damaging weight to an accusationby noting that an allegedkidnapper-already a potential traitor-had furthercommitted a breach of the truce. It might be emphasized, moreover, that the unfortunatevictim was a good and true liege man of the king and, by extension, that the perpetratorwas the king's enemy.85 When framing indictments for theft or for the sale of goods stolen in Englandto Scottish accomplices,the presentingjurors might make use of either the act of 1352 or 1414;the formerbecauseof its general referenceto adheringto the king's enemies, the latterbecause it made specific mention of these offences. The charges normally stated that the suspectshad treasonably"convened"with the enemy beforesetting off on their adventures.86Other, less pointed, and often superfluous devices were sometimes added to stress the collusion of the alleged traitorwith those who bore the king no good will.87The activities of one David Fotherleywere intended to be interpretedas a breach of the treason act of 1414: He was said in 1432 to have convened with a gang of the king's Scottish enemies "contrary to the ordinance proclaimedin defence of the marches."88 The presentingjurorshad the same statute in mind when they chargedJohn Atkinson with being a "common and notorious breakerof the truce" (trewbreker),but other accusations,such as the harboringof known spies, and the forewarning of the king's enemies of an impendingEnglishraid, were construedas falling within the scope of treason accordingto either of the statutes.89 So, too, was the indictmentfor treasonlaid againstone WilliamObilson in 1431, for assisting a notorious Scotsman who had broken out of gaol to make his way back across the border,90and the charge of falsifying the warden's seal brought against a clerk from Newcastle- upon-Tyne in 1440.91 By 1442, the English governmenthad finally become convinced of the unsatisfactorynatureof the statuteof 1414, and agreedto acknowl- edge formally that it was a dead letter. Upon complaint from the commons that the Scots were still "greatlyemboldenedand comforted" This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 19 in making war on the borderers,both at sea and on land,92it was conceded that the act should be suspendedtemporarily(until the next parliament), and further, that all those who had to date suffered punishment under its provisions should be pardoned.93The decision was greeted with approvalby the merchantsand marinerswho plied the watersof the North Sea, who had persistentlyprotestedthe Crown's policy on plunder and piracy in general.But for the common folk of the borderlands, it made little difference;they had learnedby now to look to the sessions of gaol delivery,ratherthan to the wardens'courts, as the most dependabletribunalsfor determiningindictmentsof border- relatedcrime,and they continuedto makeuse of thesecourtsthroughout the 1440s.94 Real and meaningful changes in the proceduresused to try and punish incidents of cross-bordercrime finally came to the northern countries in the middle years of the fifteenth century.In November, 1449, a formal truce was arrangedat Durham, to last "for as long as it shall please" the kings of England and Scotland.95The agreement included a comprehensivestatement of the laws and customs of the marches, a much revised and amplified version of the legal theories and practices that had influenced the adjudicationof border-related criminal activity for over two hundred years.96More important, it inaugurateda period in which the wardens' courts became crucial forums for the settlementof cross-borderdisputes.By the terms of the truce, execution of the traditionallaws and customs of the march was restoredto the wardens, and their commissions once again began to direct them to punish offenders against the truce according to the practice prescribedtherein.97Such offenders,however,were no longer consideredtraitors.In effect, the wardenswere henceforthable to take full advantageof the wide powers to hear and determine,which had been includedin theircommissionssince 1399,but whichthe procedural defects of the statuteof 1414 concerningmarchtreasonhad so severely hampered. Thus, the wardens were to continue to redress offences against the truce by means of actions of trespasspresentedto Scottish officialsat days of march,but they were also given more reliablemeans for punishingrecalcitrantoffenders.In an act of parliamentproclaimed in 1450, it was decreed that persons who sufferedloss as a result of a breach of the truce might seek restitutionof their goods in chancery. Personsaccused of an offence deemed to be a breachof the truce who failed to appearbefore the chancellorto offerredresswhen summoned were to stand convicted of treason and sufferforfeitureof the chattels and tenements.98Although the troublesomeact of 1414 was therefore not officiallyrepealed,its provisionswere in practicesuperseded.The This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 20 Law and History Review means had been made availablefor breachesof the truce to be more easily prosecutedin the wardens'courts. The Period after 1440 The demise of the statuteconcerningtruce-breakingencouragedthe inhabitantsof the northerncounties to make more regularuse of the wardens'tribunalsas the normal court of action in mattersconcerning borderoffences;there is recordedonly a single indictmentfor this sort of crime in the records of gaol delivery after 1450.99The suggestion that the wardens'courts claimed an importantshare in the settlement of border incidents remains, however, a cautious one, because the source material that survives from this period is much less uniform and plentiful than for the fourteenthand early fifteenthcenturies.The recordsof assize relatingto the three bordershiresterminateabruptly with the enrollment of the sessions held in Newcastle-upon-Tyneand in Appleby in 1459. The last surviving rolls of gaol delivery for Cumberlanddates from 1458. The loss of subsequentrolls is all the more regrettableas there does not exist-nor was there apparently ever collected-a single body of record material arising from the judicialworkcarriedout in the wardens'courts.Therefore,suppositions on later fifteenth-centurydevelopmentsand the growthof the wardens' courts rest partly on negative evidence and can only be tentative at best. While the absence of assize recordsdoes not attest in itself the rise in the judicial work of the wardens of the marches after 1450, the vigorousactivity of these officialsis evidencedin otherways. The rarity of indictments for march-relatedcrime in an otherwise substantial collection of written charges in the rolls dating from 1450-1458/9 suggeststhat the borderersbeganto makepurposefuluse of the wardens' newly clarifiedauthorityto hear and determinebreachesof the truce. This paperhas shown that, until the truceof 1449 and the proclamation of 1450, such offences were most frequentlyadjudicatedin the courts of assize; in midcentury,these tribunalsabruptlyceased to deal with such matters.There is no reasonto believe that the incidence of cross- border crime decreaseddramaticallyin the years that followed. The commons continued to present petitions in parliamentthat lamented the hardship caused by Scottish incursions;they continuted to seek financialfavorin compensationfor theirgreatlosses.?00 The need, then, for the king's justice in dealing with the Scots did not noticeably diminish. This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 21 Less than a week after King Henry VI had confirmed the truce of 1449, a general safe conduct was granted to all Scotsmen who wished to come to England to prosecute alleged offences committed on either side of the border.?10This was but the first of a continuous series of similar safe conducts issued in the years after 1450, specifically designed to facilitate meetings between wardens of the English and Scottish marches in which grievances might be aired and the accused subjected to trial. Concurrent with the granting of these broad safe conducts, the Crown-Lancastrian, Yorkist, then Tudor-assented to a series of well-nigh continuous truces from 1449 until 1501 and beyond.102Days of march were arranged and held almost annually from 1451 until well into the sixteenth century. 03While disputes involving the greater border magnates continued to dominate the business of these meetings, lesser men were also encouraged to bring their grievances to these tribunals. The most telling evidence for the wardens' assumption of the role of chief agents of the Crown in the prosecution of cross-border criminals after 1449-50 is a petition heard in the parliament of 1453. In it, the commons of Yorkshire complained that although the wardens were empowered to make attachments for attempts done against the truce in the marches of England towards Scotland, sumtyme for thaire singuler lucre, and sumtyme for malice that they have borne to certaine persones, [they] have attached, and takes upon theym daily to attache, diverse and many well ruled personesby thaire bodies, as well in Yorkshireas in other placesoute of eny of the ... shires of Northumbr',Cumbr'or Westmerland,or Toune of Newcastell,beryng hem uppon hande that thai were endited in the WardenCourte; and some of the same persones [they] have put to grete fyne and raunson upon such enditement, and other some of them in sore prison by long tyme have withoute baile or maynpris keped, to the full grete hurte, oppression and importablechargeto many of youre true and well ruled Liege people, dwellyng out of eny of the said Shires.'04 They requested that persons attached by the wardens outwith the marches be permitted to resist arrest, that they be allowed to seek compensation for their unjust detention, and that the wardens them- selves be fined heavily in all such instances. The Crown assented and decreed that justices of the peace, sheriffs, and franchise officials in Yorkshire should henceforth be empowered to make inquisition into cases of unauthorized attachment by the wardens and to take appro- priate legal action against them if the allegations were substantiated.'05 Finally, the plentiful evidence concerning the judicial activities of the wardens that has survived from the sixteenth century further attests the importance of these royal officials in the pursuit and punishment This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 22 Law and History Review of northern offenders.Within a few decades of the promulgationof the provisionsembodied in the truce of 1449, the wardens'courts had become firmly establishedin the north as the principaltribunalsfor adjudicatingcases of cross-bordercrime. The creation of a truly effective and reliable system for punishing border criminals was an achievement not of the later medieval kings of England,but of their Tudorsuccessors,who experimentedwith, and eventuallyrefined,a conciliar system of governmentfor the turbulent north.'06Not until the wardens'powers to hear and determine cross- border offences were fully integratedwith a network of tribunalsand proceduresdesigned to ensure effective sanctions in these cases, that is, not until the early sixteenth century,was such a system possible. The judicial officialsand the subjectsof the fourteenth-and fifteenth- century monarchs had to depend primarilyon the machineryof the common law for the apprehension,trial, and punishment of those Englishmenwho engagedin criminalactivityin consortwith the enemy Scots. The enactment of the great treasonsstatute of 1352 provideda strong basis upon which to prosecute such offendersand, from the 1350s on, indictments for treason were frequentlylaid by northern juries of presentmentagainst border criminals. The extension of the scope of treasonto include breachesof the truce and violationsof royal letters of safe conduct effected by the statute of 1414 was clearly intended to facilitatethe prosecutionof march-relatedoffences.When proceduraldifficultiesbeset the wardens'attemptsto put the provisions of the act into effect, the bordererswere forced to fall back on the scope for interpretationinherentin the fourteenth-centurystatute,and it is noteworthythat they recalledonly when necessaryor convenient the substantiveaspectsof the more recentlegislation.Together,the acts of 1352 and 1414 enabled the wardensto pursue and punish grievous offendersarmed with the most powerfuland onerous legislationavail- able to medieval Englishmen. NOTES The author wishes to acknowledgethe assistance of the Social Sciences and Humanities ResearchCouncil of Canadain the preparationof this article. 1. Rotuli Parliamentorum4:21-22. 2. In 1304, for example, the sheriffof Cumberlandwas forgiventhe arrearsof the ferm of his county,a sum he had been unable to raise becauseof the destructionand poverty caused there by the Scots. The bishop of Carlislewas granteda similarrespite in 1314-15 on the same grounds.In 1328and 1376the inhabitantsof Northumberland, This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 23 and in 1347 those of Cumberland,petitionedfor and were grantedpardonof all ferms and taxes owed the crown. Rot. Parl. 1:163, 313; 2:25, 176, 349. Other examples of special concessions may be found in ibid., 1:161,410; 3:82, 181; 4:360, 379; 6:224-25, 394. The Closeand PatentRolls arerepletewith noticesof similargrantsand concessions made by the Crown on behalf of the impoverishednortherners.See also J. F Willard, "The Scotch Raids and the Fourteenth-CenturyTaxation of Northern England," Universityof ColoradoStudies 5 (1906-8): 237-42, and, for the period of RobertBruce in particular,J. Scammell, "Robert I and the North of England"English Historical Review 73 (1958): 385-403. 3. Statutes of the Realm 2:177-79 (2 Henry V, s. 1, cc. 5, 6). 4. The act was revised and amplifiedin 1421, when the inhabitantsof Redesdale were included in its provisions. Rot. Parl.4:143 and Stat. Realm 2:206-7 (9 Henry V, s. 1, c. 7). The libertiesof Tynedale,Redesdale,and Hexhamwere but three of several regions in northern Englandwhich enjoyed a peculiarjudicial relationshipwith the Crown. Some were controlledby secularlords, but they might also be in the hands of ecclesiasticallandlords:The most powerfulof these was the bishop of Durham, who governeddirectlyvirtuallyall that county.Otherlibertiesin the bordercountiesincluded Cockermouth and Coupland (Cumberland),Kendal (Westmorland),Norham with Bedlington, and Tynemouth (Northumberland).On the more general subject of the intrusionof the common law into regionsof traditionallyprivatejurisdictionin England in the course of the fifteenthcentury,see J. B. Post, "LocalJurisdictionand Judgment of Death in LaterMedieval England,"CriminalJustice History 4 (1983): 1-21. 5. J. G. Bellamy, Crime and Public Orderin England in the Later Middle Ages (London, 1973), 106. 6. The agreement,dated 2 December 1341, is enrolledin Calendarof Close Rolls, 1341-43, at 353-54. A full text may be found in RegistrumPalatinumDunelmense, ed. T. Duffus Hardy (Rolls Series, 1878), 4:244-47. 7. The act defined breaches of the truce generally as the slaying or robbery of persons within the marchesof EnglandtowardsScotland. 8. These recordsare housed in the PublicRecordOfficein ChanceryLane,London, under the classificationof JUST 1 (Assize Rolls) and JUST 3 (Gaol Delivery Rolls). All the surviving recordsrelatingto the three northerncounties of Northumberland, Cumberland,and Westmorlandhave been examined.Theseincludenot only enrollments of trial proceedings, but also the surviving bodies of files, agendas, and calendars relatingto individual cases and assize sessions. 9. Several classifications of chancery documents contain the details of special inquisitions into criminaloffencesinitiatedby the crown,notablythe calendaredClose and PatentRolls, and the collectionsknownas CriminalInquisitions(C144),Inquisitions Miscellaneous,(C145), and ChanceryMiscellanea(C47). 10. S. Rezneck, "The EarlyHistory of the ParliamentaryDeclarationof Treason," English Historical Review 42 (1927): 497. The statute is found in Stat. Realm 1:319- 20 (25 EdwardIII, s. 5, c. 2). 11. J. G. Bellamy, The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), passim. The discussion on the backgroundof the statute which follows draws heavily on Dr. Bellamy'sseminal study,but see also Rezneck, "Parlia- mentary Declarationof Treason,"passim, and I. D. Thornley,"The Act of Treasons, 1352,"History 6 (1921): 106-8. 12. Rot. Parl. 2:166. 13. Ibid. 2:239. This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 24 Law and History Review 14. Bellamy,Law of Treason, 87, 100. See also Thornley,"The Act of Treasons, 1352,"107. 15. JUST 3/135 m 8d. 16. JUST 3/135 m 10d. 17. JUST 3/135 m 8d. 18. JUST 3/135 m 3. The widespreadand continuingpopularhostility felt toward the Scots in the fourteenthcentury is reviewed briefly in J. Barie, Warin Medieval English Society:Social Valuesin the HundredYearsWar1337-99 (Ithaca,N.Y., 1974), 49-52. 19. M. H. Keen, "Treason Trials under the Law of Arms," Transactionsof the Royal Historical Society, 5th ser., 12 (1962): 95-97. See also M. H. Keen, The Laws of Warin the Late MiddleAges (London, 1965), 63-81, 156-85. 20. AnnalesLondonienses,in Chroniclesof the Reigns of EdwardI and EdwardII, ed. W.Stubbs(R.S., 1882), 1:141.ThejudicialproceedingsagainstWallacearerecounted in ibid. 1:139-42. 21. Rot. Parl. 2:3. Other incidents of this natureare discussed in Keen, "Treason Trials,"93-95, and in L. W. Vernon Harcourt,His Grace the Stewardand Trial of Peers(London, 1907), 298-361. The latter work includes transcriptsof several King's Bench recordsrelatingto the treason trials referredto. 22. The case, enrolled in PRO KB27/349 Rex m 23, is cited in Bellamy,Law of Treason,62. Othercases of ransom-takingwhichwereconstruedas treasonarediscussed in ibid., 68, 92. 23. An approverwas a suspect who agreedto identify and accuse his accomplices in crime in return for postponementof his own trial. See F C. Hamil, "The King's Approvers:A Chapter in the History of the English Common Law,"Speculum 11 (1936): 238-58. 24. JUST 3/135 m 10. 25. JUST 3/135 m 10d. 26. JUST 3/135 m 13. 27. JUST 3/135 m 13. The woman attemptedto resist the effortsof William, son of Ranald Todd, to burgle her home and abduct her husband. She was thrown onto the open fire and was so badly burnedthat she died immediately. 28. The approver,Robertde Brokenhouse,went so faras to volunteerthe additional informationthat John del Craghad received the sum of 10 marksas his share of the victim's ransom. JUST 3/35 m 10. 29. Stat. Realm 1:320. 30. In the numerousrolls of gaol delivery which survive from the fourteenthand fifteenthcenturies,there are recordedfewer than a half dozen cases of false moneying. 31. Stat. Realm 1:320. 32. Bellamy,Law of Treason,93-107. 33. JUST 3/141/A m 40d. 34. JUST 3/141/A m 45. 35. Calendarof PatentRolls, 1354-58, at 614. 36. However, he managed to remain at large, "lurkingin the march of Scotland doing much damage to the king's lieges,"for some two years. 37. JUST 3/143 m Id. 38. JUST 3/145 m 8d. 39. JUST 3/145 m 24. 40. For example, JUST 3/145 mm 28, 33 (1363). This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 25 41. Rotuli Scotiae in TurriLondonensiet in Domo Capitulari Westmonasteriensi Asservati,ed. D. Macphersonet al. (Record Commission, 1814), 1:894. 42. Bellamy,Law of Treason, 105. 43. See, for example, Historia Anglicana, ed. H. T Riley (R.S., 1863-64), 1:340, 373, 387-89, 409-10, 437-38; 2:41-44, 112, 118, 131-33, 142, 175-76, 180; Chronicon Angliae, ed. E. M. Thompson (R.S., 1874), 165-66, 202-3, 219-20, 239-40; The WestminsterChronicle,ed. L. C. Hector and B. Harvey (Oxford, 1982), 40-43, 50-51, 58-59, 86-87, 100-1, 132-35, 138-39, 344-45, 370-71, 382-84, 396-97. For a brief discussionof the escalationof cross-borderwarfarein the decadefollowingthe succession of RichardII to the Englishthrone, see R. Nicholson, Scotland:The LaterMiddleAges (Edinburgh,1974), 93-99. 44. Rot. Parl. 3:30. See also ibid. 2:345; 3:42, 63-64. 45. Ibid. 3:22-23. 46. Ibid. 2:349-50; 3:69, 181, 270-71. See also CPR, 1370-74, 293; CPR, 1374-77, 434-35; CPR, 1377-81, 308; CPR 1385-89, 42-43, 203, 230, 312; Ancient Petitions relating to Northumberland,ed. C. M. Fraser (Surtees Soc., 1961), nos. 29, 30, 109, 182, 196, 197;NorthernPetitionsIllustrativeof Life in Berwick,Cumbriaand Durham in the FourteenthCentury,ed. C. M. Fraser(SurteesSoc., 1981), nos. 113, 114. 47. Rot. Parl. 2:345; 3:80-81, 138, 146, 200, 213, 214, 233, 251. 48. Rot. Scot. 1:958. By 1373 the office of warden had undergone substantial development. It was first created in 1296, in response to the outbreakof war with Scotland. In these early years the wardenswere grantedauthorityby means of special commissions to levy the men of the marchesin their defence.In 1309 the officebecame permanent;by midcenturycommissions furtherempoweredthe wardensto keep the truce by punishingviolations of it "accordingto the laws and customs of the marches." The next significantdevelopment in the history of the office occurred,as noted, in 1373. For a review of the wardens'powers to 1399, see R. R. Reid, "The Office of Wardenof the Marches;its Originsand EarlyHistory,"English HistoricalReview 32 (1917): 481-83 and, more recently,R. L. Storey, "The Wardensof the Marches of EnglandtowardsScotland, 1377-1399,"English HistoricalReview72 (1957): 593-603. The problemof understandingthe preciserole played by the medieval wardensin the judicial and administrativeorganizationof the north is discussed in C. J. Neville, "BorderLaw in Late Medieval England,"Journalof Legal History 9 (1988): 335-56. 49. Truces were arrangedor extended in 1377, 1380, 1381, 1384, 1385, 1386, and 1389, and ambassadorsempoweredto treat for peace were commissioned throughout the 1380s. See Historia Anglicana 1:373;2:41-42; The WestminsterChronicle,40-42, 86-87, 100-1, 376-77; Rot. Scot. 2:12, 14, 36, 45, 51, 62-63, 70, 72, 75-76, 79, 82-84, 88-89, 92, 93, 99, 101-2; Foedera,Conventiones,Litterae,etc., ed. T. Rymer (facsimile edition of The Hague edition, 1739-45), 3.3.69-70, 108-9, 122-23, 156-57, 182, 205; 3.4.39-42. 50. Rot. Scot. 2:81. 51. Rot. Parl. 3:62. 52. The texts of several letters exchangedbetween the wardens of Englandand Scotlandand their respectivekings regardingterms of truce and arrangementsfor days of march may be found in BritishLibraryMS Cotton VespasianF. VII fols. 7, 17, 18, 34. Only some of these valuable documents have been fully transcribedand printed. See S. B. Chrimes,"Some Lettersof John of Lancasteras Wardenof the East Marches towardsScotland,"Speculum 14 (1939): 13-27. 53. In February1382, for example, two keepersof the truce in Cumberlandwere commissioned to arrest and imprison William Knifeshawand GeoffreyWalsh,"who This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 26 Law and History Review with othershave stolen and broughtinto Englandthe goods of divers men of Scotland." CPR, 1381-85, 135-36. Knifeshawand some fourteenaccompliceswere the subjects of anothercommission of enquiryless than a month later;this time the commissioners, who counted among their members the wardenof the West March,were empowered to make restitutionto the victims. CPR, 1381-85, 135. Other examples are found in ibid., 137-38, 586; CPR, 1385-89, 85, 89, 412; CPR, 1388-92, 340; Rot. Parl. 3:255- 56. 54. JUST 3/169 m 33. 55. JUST 3/169 m 43. 56. JUST 3/169 m 37d. 57. The truce of Leulinghenbroughtto a temporaryhalt open hostilities between the Englishand the French;it also provided for a period of truce with the Scots. The WestminsterChronicle,376-77, 398 n. 2, 402 n. 8. Forthe text of the trucesee Foedera 3.4.39-42. 58. CPR, 1388-92, 340. 59. CPR, 1391-96, 291. 60. JUST 3/176 m 21. 61. JUST 3/176 mm 20d, 21d. 62. In 1393 John del Hope was accused of having treasonablyled his Scottish accomplicesto Westlilburn,wherethey robbedand carriedoff to Scotlandseverallieges of the English king. JUST 3/176 m 24. John was to be tried again in 1394 on two furtherchargesof robbery;he was said then to be a "common and notorious thief." JUST 3/176 m 24d. John Archerwas tried in Newcastle-upon-Tynein 1394 on several chargesof treasonableransom-taking.He was called a "common and notorious thief and traitor."JUST 3/176 m 26. Other indictments for treason in cases of ransom- taking are found in JUST 3/183 m 7d (1396), JUST 3/191 m 48 (1406) and JUST 3/ 191 m 51d (1411). In 1393 William Storourwas indicted for several thefts of divers goods belonging to a group of grocers,but also because he was renownedas a "notorioustraitorand common thief."JUST 3/176 m 23d. In 1410 Robertde Hodle was accused of having treasonablyled a gang of Scottishthieves to the vill of Bingfold,wherethey committed several thefts. His indictment states that he is "a known leader into Englandof the said RobertHunter[the Scottishringleader]and variousotherknownScottishenemies." JUST 3/53/4 m 1. Other indictments for theft in which the term proditorieappears are found in JUST 3/176 m 23d (1393), JUST 3/191 m 49 (1407) and JUST 3/191 m 51 (1411). 63. In 1396,for example,the abbotsof Alnwickand Newminsterin Northumberland made a piteous plea to the Crown asking to be forgiven payment of the tenth and fifteenthlast grantedin parliament,because "they have been reducedto such poverty by frequentattacksof the Scots and by personalransomsthat they are unable to pay." CPR, 1391-96, 729. For the rivalrybetween the Perciesand the Nevilles in the early fourteenthcenturyand its effectson conditions in the north,see S. B. Chrimes,"Some Lettersof John of Lancaster,"3-12. 64. JUST 3/176 m 21. 65. In the sessions of 1390 the justices were told that Alice the wife of Thomas Evison was born and brought up in "that part of the kingdom of Scotland called Galloway,and was and has always been in the allegianceof the king of Scots."She had come to the marches of Englandat the time of the first pestilence (the Black Death?),had marriedan Englishman,and had a family.Her husbandwas now deceased. The justices remittedthe woman to gaol in Carlisle,where she remainedfor some two This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 27 years. At the sessions of gaol delivery held on August 28, 1392, it was finallydecided that Alice was, indeed, the subject of Scotland that she claimed to be, and she was releasedsine die. 66. Verdictsof guilt in cases of bordertreason,thoughnever frequent,were handed down in cases of theft in 1393 (JUST 3/176 m 23d) and 1407 (JUST 3/191 m 49), ransom-takingin 1396 (JUST 3/183 m 7), and receiving known Scottish thieves in 1398 (JUST 3/184 m 15). In 1411 William Davison was tried for having treasonably gatheredwith several Scottish thieves in the vill of Angram,where they stole a horse, and again for having treasonablyconvened with another gang of Scots at Lowick, "wherehe sold to the said enemies the king's castle of Roxburgh"William was said to be a "common traitor,thief, ambusherof the king's roads and depopulatorof the fields."He was found guilty of treasonand felony and was sentencedto be drawnand hanged.(JUST 3/191 m 51). The sentencewas unusual,in that the king had conceded in 1401-2 that personsaccusedof being communeslatrones,depopulatoresagrorumet insidiatores viarum should not henceforthbe indicted for treason (Bellamy,Law of Treason,116 n. 40). Davison's treasonlay, rather,in his adherenceto the king'ssworn enemies. At the same sessions of gaol delivery a charge similar to that laid against William Davison was heard:RobertKendal of Bamburgh"treasonablyconvened with Thomas Tumsbull,a Scottish enemy of the king, and treasonablydeliveredto him the king's castle of Roxburgh."Kendal was tried and acquitted. 67. Bellamy, Law of Treason, 137. The statutes include the legislation of 1414 concerningbreachesof the truce and its subsequentalterations,an act of 1416 which dealt with the clippingand filingof coins, an act of 1423-4 which declaredthat persons held on suspicion of high treason should be convicted of that offence if they broke prison, an act of 1429-30 which touched on arson, and an act of 1460 which dealt with the successionto the throne. The fifteenthcenturyalso witnessedthe elaboration of treasonby words. See I. D. Thornley,"Treasonby Wordsin the FifteenthCentury," English Historical Review 32 (1917): 556-61 and S. Rezneck, "ConstructiveTreason by Wordsin the FifteenthCentury,"AmericanHistoricalReview 33 (1928): 543-52. 68. JUST 3/53/4 m 1. 69. The records which survive from the days of march reveal that the wardens most often discussed topics such as the title to goods stolen from noble estates by the Scots during periods of truce, incidents of ransom-takingdisguised as the honorable confinement of prisoners of war, and cases of alleged piracy on the high seas. Commissionsto the wardensorderinginquisitionsinto such disputeswere often issued as a result of a personal action initiated in chancery by aggrievedparties. See, for example, CPR, 1381-85, 83-84, 135, 137-38, 182, 531; CPR, 1385-89, 85, 89, 412; CPR, 1388-92, 340; CPR, 1396-99, 52; CPR, 1399-1401, 287, 371, 415; CPR, 1401- 5, 213; CPR, 1405-9, 114; CPR, 1408-13, 231; Rot. Parl. 3:129. See also Nicholson, Scotland. The Later MiddleAges, 195; Storey,"The Wardensof the Marches,"595-97. These disputes were occasionallysettled accordingto trial by combat. CPR, 1391-96, 261; CPR, 1399-1401, 119; CPR, 1401-5, 410, 440; CPR, 1405-8, 101. 70. In October, 1380, John of Gaunt travellednorth to hold a march day with an impressive following of 2800 men-at-arms.He was accompaniedby the archbishopof York, the prior of St. John, and three earls, who also broughttheir own retinues of soldiers. PRO E404/78, cited in Storey,"The Wardensof the Marches,"595. In 1383, expenses for a brief meeting on the marches between commissionersof the English and Scottish crowns totalled some five hundredmarks.John of Gaunt'sRegister1379- 1383, ed. E. C. Lodge and R. Somerville (Camden Soc., 3d ser., 1937), 2:288. Such magnificentgatheringswere not much concerned with the relatively paltry losses of This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 28 Law and History Review cows, sheep, or money sufferedby the common folk in individual incidents of cross- bordercrime. 71. B. L. MS Cotton VespasianF VII, fol. 6, cited in Chrimes,"Some Lettersof John of Lancaster,"7. A transcriptof the memorandumis printedin Proceedingsand Ordinancesof the PrivyCouncil,ed. N. H. Nicholas (RecordCommission, 1834),2:91- 95. 72. B. L. MS Cotton VespasianF VII, fol. 112, transcribedin Chrimes, "Some Lettersof John of Lancaster,"23. 73. B. L. MS Cotton VespasianF VII, fol. 78, transcribedibid., 25-26. For com- plaints concerningthe poor state of repairof the fortificationsin the marchesin the first decade of the century see Rot. Parl. 3:518, 634; CPR, 1401-5, 182, 372; CPR, 1405-8, 51, 141. 74. The preambleto the act itself openly acknowledgesthe perilousstate of affairs on the borders:"Forasmuchas before this time divers people, comprisedwithin the truces made as well by our lord the king that now is, as by his noble father,and also divers other people having safe conducts... have been some slain, robbedand spoiled by the king's liege people and subjects,as well upon the high sea as within the ports and coasts of the sea... wherebythe said truces and safe conducts have been broken and offended to the great dishonourand slanderof the king, and againsthis dignity; and the said truces and the king's safe conducts... have been by divers of the king's liege peopleand subjectswithin the coastsof diverscountiesreceived,abetted,procured, concealed, hired, sustained and maintained:our said lord the king... hath ordained and declared...." Stat. Realm 2:178. 75. In 1379 the ambassadorfrom the court of Genoa was murderedin London by a band of thugs. The Crown orderedthe case sent into chancery,from where it was referredto parliament.There it was declaredthat the crime should be construedas treason,becausethe king'slettersof safe conducthad been violatedby the perpetrators. The case is enrolled in PRO KB27/476 Rex m 75. A transcriptof the enrollmentis provided in Bellamy,Law of Treason,232-34. 76. Ibid., 129, and Keen, Laws of War 206. For a general discussion on the significanceof letters of safe conduct, see ibid., 197-217. The inclusion of these sorts of offences within the scope of treason in contemporaryFrance is discussed in S. H. Cuttler,The Law of Treasonand TreasonTrialsin LaterMedievalFrance(Cambridge, 1981), 4, 8, 31, 37. 77. Stat. Realm 2:178-79. 78. Rot. Parl. 4:68. 79. Ibid. 105. 80. Stat. Realm 2:198-99 (4 Henry VI, s. 2, c. 7). 81. The commons petitioned again for repeal of the statute in 1422, 1429, and 1433, but the governmentrefusedto alterits policy.Rot. Parl.4:143, 351, 452. In 1435, upon hearingthe complaint that the act permittedthe king's adversariesand enemies to be "greatlyencouragedand confortedto make war againstthe king's liege people," the Crown relentedinsofaras it agreedto suspendall prosecutionsfor, and forfeitures arisingfrom, offencescommitted againstthe act. The period of gracegrantedin 1435, however,was to endure for only seven years. Stat. Realm 2:294 (13 Henry VI, c. 8). 82. JUST 3/53/5 m 1. In noting that Jay had revealedto the Scotsman"the counsel of the lord king,"the jurors clearlyintendedto convey the idea that Jay had aided the king's enemies, an offence punishableas treason under the provisions of the act of 1352. 83. JUST 3/53/5 m 1. This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions The Law of Treason 29 84. JUST 3/199 m 17. Anotherindictmentnoted that the victim was forcedto pay the hefty sum of forty pounds in orderto securehis release.JUST 3/199 m 18 (1426). The law did not requirethat descriptivedetails such as these be includedin the written charges.The jurors'concernto have them enrolledatteststheir determinationto stress the gravity of the alleged offences. 85. JUST 3/199 mm 17, 18, 23 (1421, 1426, 1427). 86. Of the twenty-threeindictments laid for theft and/or the sale of stolen goods to Scotsmen, fourteeninclude the phrase.JUST 3/53/5 m 1 (1419); JUST 3/199 mm 17, 17d, 18, 23d (1421, 1426, 1427); JUST 3/208 mm 26, 30, 34, 35d (1432, 1433, 1435, 1437). 87. This idea is conveyed by the use of two or more verbs to distinguisheach stage of the alleged crime. LawrenceNicholson, for example, was said to have treasonably fled to Scotland with forty stolen sheep, then to have delivered the animals into the hands of the king's Scottish enemies. JUST 3/199 m 17d (1427). Robert Boyse was alleged to have feloniously and treasonablytaken six stolen oxen to one John Taylor, a Scot, to whom he then sold the booty. JUST 3/211 m 47d (1441). Others were accused of having deliveredstolen goods to the enemy,the implicationbeing that they had planned a rendezvous.JUST 3/199 mm 17, 19, 21 (1423, 1424, 1427) and JUST 3/211 mm 31, 32d (1444, 1446). 88. JUST 3/208 m 26. The indictment referredto the truce arrangedbetween Scottish and Englishcommissionerson 15 December 1430. Foedera4.4.169-71. 89. JUST 3/208 m 32 (1434). Chargesof being a trewbrekerwere levied against anotherNorthumberlandman at these sessions. Both suspectswere convicted, though it does not appear that the justices construed their offences as treason, for their respective sentences did not include the punishmentof being draggedto the gallows traditionallyadded to that of hanging for convicted traitors. Atkinson's indictment notes that, in addition to being a truce-breaker,he was a common and notorious intakkerand outputtere.The terms are not rare in northernindictments:They were used in at least four other cases. JUST 3/169 m 33 (1382) and JUST 3/184 m 15 (1398). The latter term is found even earlier in a source other than the records of assize, in the Brut chronicles,composed in the mid-fourteenthcentury.In the section which relatesthe propheciessaid to have been utteredby Merlinconcerningthe reign of EdwardII, the traitorSir Andrewde Harcla(executedin 1323 for conspiringwith the Scots) is described as "Sir Andrew of Herkela, that is called the vnkynde out- putter."The Brut or the Chroniclesof England,ed. F W. Brie (EarlyEnglishText Soc., vols. 131, 136 [1906-8]), 1: 245. The dating of the Frenchversion of the chroniclesis discussedin J. Taylor,"The FrenchBrutand the Reignof EdwardII,"EnglishHistorical Review 72 (1957): 434-35. Preciselywhat was meant by the terms is made clear in the indictment for ransom-takingpresentedagainst John Baron in 1357: The suspect in this case was said to be "a common outputterof Englishgoods to the king's Scottish enemies, taking for himself a part of those goods."JUST 3/141A m 52. Intakersand outputters,who made a business of consorting in crime with the Scots apparently thrived in the liberties of the northerncounties. The statute of 1421 concerningthe franchisesnoted that "murders,treasons,manslaughters,robberies,the givingof consent and [other]offencesby diverspersons,thieves and felons,calledintakersand outputters, dwellingwithin the franchiseof Redesdale,in which franchisethe king'swrit does not run ... have been done now of late...." Stat. Realm 2:207. Harboringof known spies: JUST 3/199 m 24 (1421); JUST 3/208 mm 20, 20d (1428) Forewarningthe King's enemies: JUST 3/208 m 34d (1435). 90. JUST 3/208 m 25d. This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions 30 Law and History Review 91. Long before 1352 any tampering with the king's seal had been held to be treasonable.The statuteof treasonsconfirmedthe justices'practicein the matter.There existed no clear precedenton which to base a chargeof treason in the falsifyingof a warden'sseal, but because this official derived his authoritydirectlyfrom the Crown by means of a royal commission, it was not difficultto argueby judicial construction that the suspect in this case had offendedthe dignity of the Crown. 92. Rot. Parl. 5:63. 93. Stat. Realm 2:323-24 (20 Henry VI, c. 9). 94. Cases of border-relatedcrime, including some indictments of march treason, are found in JUST 3/54/27 m 1 (1442), JUST 3/211 mm 30, 31, 32, 32d, (1442, 1444, 1446), JUST 3/213 m 17 (1454). 95. Rot. Scot. 2:333-41; Foedera5.2.16-19. 96. The first attempt to codify the ancient laws and customs of the marcheshad been made in 1249, in a meeting between representativesof the Englishand Scottish crowns. See Leges Marchiarumor BorderLaws, ed. W. Nicholson (London, 1705), 1- 8. 97. Rot. Scot. 2:372. 98. Stat. Realm 2:358-59 (29 Henry VI, c. 2). 99. JUST S3/213 m 17. At the sessions of August, 1454, John Short, a laborerof Scotland, was chargedwith having stolen a horse and saddle. He was convicted and sentenced to hang. The case is an unusual one in several respects, not the least of which is the fact that Shortwas an acknowledgedScotsman.It is discussedin Neville, "BorderLaw in Late Medieval England,"458. 100. See, for example, Rot. Parl. 5:224-25, 268; CPR, 1452-61, 106. The gaol delivery rolls themselves attest the ongoing disruptionof life in the north:The clerk who drafted the rolls which record sessions held in the 1450s notes that the sessions were canceledin some yearsbecauseof Scottishraids.JUST 3/211 mm 44, 44d, JUST 3/213 m 16. 101. Rot. Scot. 2:341-42. 102. Truces with the Scots were made or prolongedin 1451, 1453, 1457, 1459, 1460, 1463, 1464, 1465, 1472, 1473, 1483, 1484, 1486, 1487, 1491, 1492, 1493, and 1497. A formal peace was ratifiedin 1499, and was followedby a treatyof "peaceand amity" in 1501. 103. An exhaustive list of the later fifteenth-centurydays of marchis not possible here, but for examples of commissions empoweringthe wardensof the Westand East Marchessee Foedera5.2.124-25 and Rot. Scot. 2:414 (11 June 1464). 104. Rot. Parl. 5:267. 105. Stat. Realm 2:363 (31 Hcnry VI, c. 3). 106. The most detailed account of the early workingsof the king's council in the north remains that of R. R. Reid, The King's Council in the North (London, 1921), 42-91. See also E W.Brooks,TheCouncilof theNorth(HistoricalAssociationPamphlet, 1966), 3-12. This content downloaded from 134.190.174.16 on Wed, 13 May 2015 17:57:29 UTC All use subject to JSTOR Terms and Conditions

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The Law of Treason in the English Border Counties in the Later Middle Ages

The Law of Treason in the English Border Counties in the Later Middle Ages

The Law of Treason in the English Border Counties in the Later Middle Ages

The Law of Treason in the English Border Counties in the Later Middle Ages

The Law of Treason in the English Border Counties in the Later Middle Ages

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