The King’s Felons: Church, State and Criminal Confinement in Early Tudor England
Author: Margaret McGlynn
Publisher: Oxford University Press, 2023. 371 pages.
Reviewer: Sara M. Butler | September 2024
Despite Hollywood’s depiction of the Middle Ages as a bloodthirsty era, legal historians have long recognized that neither judges nor jurors were particularly keen to send convicted felons to their deaths, and the medieval English believed that execution was too harsh a penalty for most felonies, James Whitman’s 2008 book tells us that judges (and, presumably, jurors) feared that judicial actions resulting in capital punishment might make them complicit in homicide, thus endangering their souls. This reluctance to convict generated high rates of acquittal in medieval England: anywhere between 82.6 (Given, 1977) and 87.6 percent (Hanawalt, 1979), leading many historians to question why jurists didn’t simply change the nature of the punishment to something less than execution. This is where Margaret McGlynn’s The King’s Felons comes in. She tells us the story of a legal experiment during the reigns of the first Tudor monarchs in which royal justices took it upon themselves to funnel convicted felons into ecclesiastical prisons under the pretense that they were ‘clerics,’ thereby saving felons’ necks from the gallows and initiating England’s first tentative foray into penal incarceration. Eventually, the politics of religious reformation clashed with criminal justice reform such that this experiment was a failure; nonetheless, the story McGlynn tells offers a significant revision to our understanding of criminal justice during a transformative era of Tudor state-making.
At the heart of this story lie the privileges of benefit of clergy and sanctuary; both were mandated by the church but supervised by the state. With regard to clergy, those in holy orders had the right to be judged by their peers. Thus, a cleric accused of homicide, for example, should be transferred to the bishop’s court for judgment and sentencing. The one perquisite, of course, is that because the clergy were forbidden from shedding blood, execution (the normal punishment for felony in the secular courts) was not an option for punishment. Sanctuary was the power of the church to extend mercy to those who committed crimes by sheltering them from secular justice. Most exercises of sanctuary lasted for a period of up to forty days; at which point, the perpetrator was expected to confess to the coroner and submit to royal justice or abjure the realm. Chartered sanctuaries, however, offered protection from secular justice for life. A particularly English creation, whose religious origins intertwined with the peculiar jurisdiction of liberties, chartered sanctuaries were a touchpoint for tensions between church and state, particularly when harboring traitors or career criminals who used sanctuary as a base from which to foment rebellion or commit crimes. Harnessing both of these long-standing ecclesiastical instruments for the good of the state is how fifteenth-century English justices enacted criminal justice reform that fit more easily with the needs of their consciences.
Divided into three parts, the book begins with “The Foundations,” intended to shake up conventional perceptions of the clergy and sanctuary mechanisms. Traditionally seen as ecclesiastical procedures that remove the accused from the strictures of the common law, McGlynn hopes to underscore just how deeply both the benefit of clergy and sanctuary were entrenched in the common law. While Thomas Becket is often credited with having protected a clergyman’s right to be tried within the church, his martyrdom was not entirely successful. As McGlynn emphasizes, secular authorities accepted a cleric’s right to be delivered to the bishop’s ordinary, although authorities maintained the upper hand by delivering a cleric only after he had already been tried and convicted. The state also slowly assumed control of the process of determining who was eligible to claim benefit of clergy. The Pope insisted that tonsure and clerical dress were the defining elements. However, as early as the late thirteenth century, the English courts were also experimenting with literacy, or a combination of all three, in making the determination—even though the bishop’s ordinary theoretically could be punished for claiming a layman as a cleric, it was the king’s court that administered the reading test, not the ordinary. An increase in literacy rates over time meant that by the end of the fourteenth century, many of those claiming clerical status were in fact literate laymen, and when ordinaries attempted to refuse them on that basis, these efforts were stymied by royal justices determined to see ordinaries accept criminals they knew to be laymen rather than clerics.
Sanctuary was also not as isolated from the common law as is often argued. Confession and abjuration, both processes supervised by the county coroner, made sanctuary a regular part of the common law system. McGlynn stresses the diversity in sanctuary rites across England, many of which date back to royal grants. Battle Abbey, for example, claimed to be able to pardon sanctuary seekers of all crimes, a grant they credited to William the Conqueror, demonstrating that both church and state were involved in developing sanctuary from an early stage.
Henry VII, as a usurper of the throne who ruled directly after a period of prolonged domestic chaos that led to heightened crime rates, was in desperate need of a more efficient criminal justice system but did not want to create new laws, procedures, or offices—these might establish him as an outsider. He therefore chose to follow his justices’ advice and “ensure that the existing laws were made to work better” (91). Part Two examines Henry VII’s reign and the subtle innovations in legal practice that brought both benefit-of-clergy and sanctuary more firmly under the control of royal justices and saw the establishment of a new vision of criminal justice. A 1490 statute marks the beginning of a new phase in the history of benefit of clergy in which the courts explicitly recognized a ‘lay version’ of the privilege and set about to make it function more efficiently. Bishops, who suddenly “found themselves managing a substantial machinery for confining perhaps a quarter of the lay men convicted of felony” (118–119), were fined extortionate amounts for escapes, requiring them to step up their game as wardens. The state tackled recidivism with branding: those literate laymen who claimed benefit of clergy were branded on the thumb, their criminal past effectively recorded for all to see. The state also moved in on the process of purgation—that is, the defendant’s canonical trial, conducted only after a lengthy period in prison, at which the defendant was determined to have atoned for his past actions, paid his debt to society, and was released. If an individual was released before the crown believed that they had been sufficiently punished for their crimes, the bishop was fined for an ‘escape.’ Justices also tackled many other ‘ecclesiastical matters,’ such as whether those in minor orders should count as clergymen and what to do with bigamous clerics.
Henry VII’s reign saw a great deal of discussion about sanctuary, but it was not until the reign of his son, Henry VIII, that the privilege was brought fully into the service of the crown as “another mitigation for felony housed within the Church which they [royal justices] could nonetheless manage” (214). In particular, justices set about better defining the limits of sanctuary and ensuring that abjurers did in fact leave the realm by assigning constables to escort them to ports. It is during this period that abjurers began to be referred to as ‘the king’s felons,’ demonstrating that the crown had successfully asserted its authority over those who took refuge with the church.
Part three investigates both the realization of the crown’s criminal justice reform and the casual destruction of these reforms. The period 1529–36 saw massive changes. While the crown continued to direct most of its literate lay convicts to ecclesiastical prisons, it began to think more carefully about those who should not be able to plead benefit of clergy—e.g., murderers, burglars, petty traitors, and highway robbers, among others. Rather than claim benefit of clergy, these men instead relied heavily on sanctuary, although abjurers were no longer asked to leave the realm. Sanctuaries became places of confinement for some of the realm’s worst criminals. Between the bishops’ prisons and chartered sanctuaries, thousands of lives were saved, and bishops became the country’s chief prison wardens. Therefore, not only had royal justices fashioned a new system of criminal justice in which punishment entailed a term in prison rather than execution, they had done so without spending any money: the bishops were financially responsible for clothing, housing, feeding, and guarding the prisoners. Reform slowly began to unravel with the dissolution of monasteries in 1536. Attempts to replace chartered sanctuaries with ‘secular sanctuaries,’ run by municipalities rather than the church, were an utter failure: apparently a centuries-long tradition backed by God cannot be overturned and replaced overnight while still maintaining the trust of the people. By 1540, a specifically clerical version of benefit of clergy no longer existed, removing any motivation for bishops to support a prison system that did not recognize clerical privilege. Yet, as McGlynn underscores, all was not lost. Thousands of lives had been saved, the central court justices had a firmer grasp on the criminal justice system, and justices continued to consider ways to mitigate the severity of the common law system and avoid capital punishment.
While benefit of clergy and sanctuary are often lumped together as ‘ecclesiastical privileges,’ they rarely appear in the same study, let alone linked together as instruments of the crown in a major overhaul of England’s criminal justice system. It is hard to adequately stress the originality of McGlynn’s study. Medieval English members of Parliament commonly avoided making formal changes to laws that were out of step with the values of the people. Its jurists settled instead for workarounds or plausible but commonly accepted deceits; what legal historians have labeled ‘legal fictions.’ Because legal fictions are not explicitly recognized in legal documentation, however, they are often hard to identify. What McGlynn has uncovered is a series of fifteenth- and sixteenth-century English legal fictions interwoven to create a fundamentally transformative approach to criminal justice. Studies of the civilizing process that begin with changes in attitudes towards capital punishment in the nineteenth century will need to rewrite their narratives; so, too, will historians of violence who see the brutality of the early modern judicial system as the crown publicly stamping its authority on the bodies of transgressors. Tudor historians will want to read McGlynn’s work alongside Laura Flannigan’s Royal Justice and the Making of the Tudor Commonwealth, 1485–1547 (2024). Like McGlynn, Flannigan is focused on the first two Tudor monarchs and their use of preexisting judicial models to address growing concerns about justice by the people. While Flannigan concentrates on the conciliar courts, particularly the growth of the Court of Requests, the two books provide an entirely new assessment of justice and the growth of the state during the reigns of the early Tudors.
McGlynn’s book is not without flaws. The absence of Latin translations and references to famous cases without explanation mean the book is not easily accessible to those who are not legal scholars. McGlynn was also clearly under the impression that her charts would appear in color rather than grayscale; on pages 208–9, for example, she references the returns in blue and the purgations in orange, but everything is grey. These are all very minor concerns and do little to diminish the value of a book that should prove to be a serious gamechanger for future studies of church-state relations, criminal justice history, and the growth of the Tudor state.
References:
Laura Flannigan, Royal Justice and the Making of the Tudor Commonwealth, 1485–1547 (2024).
James B. Given, Society and Homicide in Thirteenth Century England (1977).
Barbara A. Hanawalt, Crime and Conflict in English Communities, 1300-1348 (1979).
James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2008).
Sara M. Butler is King George III Professor in British History at The Ohio State University.
