In The King's Felons, Margaret McGlynn tells the story of how in the early Tudor period common law judges sought to utilize the privileges of benefit of clergy and sanctuary to reform the criminal justice system and provide an alternative to capital punishment. Although this reformed system saved the lives of thousands of men (and a handful of women) over the course of the sixteenth century, ultimately it was a “story of failure” (1), for by the 1540s this new model of criminal confinement for felons was crumbling from within.
The King's Felons is split into three parts. The first part describes the development of benefit of clergy and sanctuary from the thirteenth century to the beginning of Henry VII's reign. This provides the historical context and intellectual framework within which the common lawyers would approach criminal justice reform under the first two Tudors. The second part deals with Henry VII's reign and the first half of Henry VIII's, charting the development of benefit of clergy and sanctuary in parallel. In this second part, McGlynn weaves together causes célèbres relating to benefit of clergy and sanctuary, such as Standish's Case and Stafford's Case, with lesser-known cases that provide more typical examples of how these privileges were utilized during the early Tudor period. Finally, in the third part McGlynn examines the effect that the Reformation had on these reforms. The common lawyers had established a system that relied upon the wealth and power of the bishops and abbots to implement it, so when this wealth and power was eroded, particularly during the period of the dissolution of the monasteries, replacements to these ecclesiastical institutions needed to be created quickly, to little success. An epilogue connects the state of the system in the aftermath of this collapse to our existing understanding of the system in the late-sixteenth century.
One of the challenges of studying criminal justice in the early Tudor period, and a core reason for why this is the first detailed study of the topic, is that the key records that would tell us this story, the records of gaol delivery, do not survive, disappearing in the 1460s and not appearing again until the late-sixteenth century. To fill this gap in the records, McGlynn uses the records of the court of King's Bench, supplemented by law reports, readings at the Inns of Court, statutes, and bishops’ registers, to provide the best possible picture of this criminal justice reform from the records available.
McGlynn's thorough search of the King's Bench records held at The National Archives (UK) to find cases relevant to this study is one of the great successes of The King's Felons. The inclusion of image numbers from the Anglo-American Legal Tradition (AALT) website (http://aalt.law.uh.edu/) alongside these King's Bench references is a thoughtful and useful addition that allows readers unable to visit The National Archives in person to easily view copies of these original records for free online, without first needing to browse through several images on AALT to locate a specific rotulet or membrane.
Such a systematic search of the plea rolls in KB 27 and the indictments files, oyer and terminer files, and informations files in KB 9 allows for The King's Felons to include a number of valuable tables and figures, and McGlynn provides tentative conclusions concerning those records that no longer survive. It would be interesting to compare these conclusions against the few gaol delivery records that do survive for this early Tudor period, such as those for the palatinate of Durham in DURH 13. Durham was both a palatinate and an important religious center, and therefore “unusually independent” (53), which may have influenced the ability of felons to utilize these ecclesiastical systems to avoid royal justice.
Another strength of The King's Felons is its clear explanation of complex legal and ecclesiastical processes. Sometimes this is through the tabulation of data, such as the table examining the several acts and general pardons of Edward VI's reign, clearly describing which crimes remained clergiable (333). At other times, McGlynn provides a more in-depth description of process, particularly useful in the first part of The King's Felons, which establishes the systems that the Tudor common lawyers would be reckoning with. The introductions to benefit of clergy and sanctuary in the later medieval and early Tudor periods in chapters 1 and 2 are invaluable, particularly to scholars interested in the relationship between Church and State in the centuries preceding the Reformation. A highlight of this first part is chapter 3, which provides detailed descriptions of the prosecution of felony and of the ecclesiastical processes that went alongside this common law system, looking at the ordinaries and their records, and sanctuary and its records.
The King's Felons is peppered throughout with interesting case studies relevant to the central thesis, highlighting the human experience of these legal reforms. John Giffard's arrest in 1402, seized after he had left the sanctuary of the church to use the common privy a hundred paces away, resulted in his jurors being asked “whether or not the aforesaid John Giffard could have excreted elsewhere” (52). Similarly, the stories of the thirteen Westminster escapees of 1492 demonstrate in detail the different ways in which individuals could claim benefit of clergy (both successfully and unsuccessfully) in Henry VII's reign.
Although The King's Felons tells “a story of failure” (1), the book itself is anything but one. McGlynn has provided a clear, impressively researched history of the criminal justice system in early Tudor England that will be of interest to students and scholars of Tudor history, legal historians, and those interested in the complex relationship between the Church and the common law.
