The sanctuary of Assange – a case of early medieval law

You would have had to have resided in the deepest darkest woods over the last five years not to have heard something about the ongoing saga of the attempts by Swedish prosecutors investigating sex crimes to question Julian Assange, the Australian journalist and founder of Wikileaks – an organisation that publishes secret and classified information from anonymous sources. Assange denies all charges and sought asylum in the Ecuadorian embassy in London in 2012 to avoid extradition to Sweden fearing he would be sent on to the US and put on trial for releasing American documents through Wikileaks (a quick recount of events and links to some of the coverage is available here: http://www.bbc.co.uk/news/world-europe-33907874 ; http://www.theguardian.com/media/julian-assange). My interest in this story is not about the various legal ins and outs of this case, but rather in how a case such as this might have played out in the period c.800-c.1300.

Firstly, it is important to point out that despite the fact that scholars often regard international law as having its beginning in the early modern period, 1648 and Westphalia is the date and place usually quoted, it is evident that there were some ‘international’ legal principles that had been in use much earlier than this date. We know this because some of the most frequently occurring provisions in treaties of the early medieval period regard those for men (and presumably women?) who had been accused of, or found guilty of, committing crimes or wrongdoings in one kingdom, and who had fled into exile, or been outlawed or banished, and had then sought shelter in another ruler’s territory. There are numerous references in treaties and in narratives describing agreements between rulers to how neither contracting party was to be allowed to shelter such men and occasionally also to the fact that they were to be actively sought and if caught shipped back to the ruler whose laws they had breached. The Anglo-French truce of 1215, the Anglo-Scottish treaty of Falaise (1174), the Anglo-Flemish alliance of 1101, the treaty between King Æthelred and the Viking leaders (994), the Franco-German treaty of Bonn (921), the treaty between Emperor Lothar and the Venetians (840), and the treaty between the kings of Mercia and Wessex (704/5) are just a few examples containing such provisions. We, furthermore, know that there are other pieces of evidence indicating that these provisions were implemented. For instance, in England both the treaty of Falaise and the legal document known as the Assize of Clarendon indicate that it was the responsibility of the sheriff to keep lists of such men, and to hunt them down and hand them over to the other side, while on the continent such men often turned up as mercenaries: the tenth-century chronicler Widukind of Corvey is just one writer to mention an army made up of such ‘criminals’. It is also possible that the attack launched by the English king, Æthelred II, against Normandy in c. 1000 should be seen in this same light, as the treaty of 991 specifically stipulated that the Norman duke was not to harbour any men or enemies of the English king without his say so.

Detail of a miniature of king Ethelred II attacking the Normans at the Cotentin Peninsula. BL MS Royal 20 E II f. 258v

Detail of a miniature of king Ethelred II attacking the Normans at the Cotentin Peninsula. BL MS Royal 20 E II f. 258v

So how might a medieval person end up being chased across borders, as it were? Much like today, once a crime had been committed, someone had to announce it and the name of the accused at a local assembly and appoint a day for when the accused would come to answer the accusation. There were a myriad of offences that might land you in serious trouble. For instance, being accused or convicted of a so-called ‘unemendable’ crime; that is, a crime which could not be atoned for with compensation. These crimes varied across kingdoms and regions but often included arson, coining false money, theft or robbery, witchcraft, failure to pay compensation, and betrayal of one’s lord. The last of these, betrayal of one’s lord, usually has a very wide definition in the laws of the period. Betrayal was evidently what the ruler deemed to be betrayal, which means that there were a whole host of offences which, if committed against the king, could in fact be ‘unemendable’. Most of these ‘unemendable’ crimes did of course not result in the accused being chased throughout several kingdoms; if found guilty they were usually punished corporally or with their life. Hence, being found guilty of theft often resulted in hanging, coining false money in the loss of fingers or hands, witchcraft in drowning, and treachery in beheading.

Hanging of the baker. Detail from the Old English Illustrated Hexateuch, BL Cotton Claudius B. IV fo. 59

Hanging of the baker. Detail from the Old English Illustrated Hexateuch, BL Cotton Claudius B. IV fo. 59

On occasion, a person found guilty was sent into exile or was outlawed. The exact distinction between the two is not always clear in the primary sources but both sentences at their basic premise ensured that the guilty fell outside the protection of the king and society, with no one being able to aid him, and should they come across him within the king’s lands he would be killed instantly. Usually the sentenced person was allowed a day to reach a port and take himself overseas or into a neighbouring kingdom. Exile was more commonly pronounced as a sentence on someone found guilty of a crime than outlawry and across Europe the length of exile could vary. We know that in Iceland, for instance, you could be exiled for three years for minor wrongdoings or permanently for more serious crimes, but many early medieval laws did not specify how long the period of exile could or should be. Outlawry was occasionally meted out as a punishment for a serious crime, much like exile, but across Europe it was also commonly a sentence pronounced because the accused had fled without answering his accusers in court. Exile and outlawry were probably in many cases a permanent status that ceased only upon the death of the guilty or accused, though it is important to note that both could often be reversed upon the payment of a fine or compensation to the king or the victim’s family.

Exile and outlawry was not the only alternative to corporal punishment in the medieval period. One could seek sanctuary, not at an embassy but in a church. Many of the legislative traditions in Europe provided for a wrongdoer who had fled to a church the protection from forcible removal as well as immunity from capital or corporal punishment. The fugitive might be required to pay a fine, forfeit his goods, perform penance, or go into exile, but mostly his body and his life were to be preserved. For instance, the eighth code of King Æthelred II promulgated in 1014 stated that if a man reached sanctuary the king would grant him his life in return for full compensation ‘both to God and to men’.

Detail from the roll of Edward the Confessor, once an exile in Normandy, holding a crown. BL Royal 14 B VI Membrane 4

Detail from the roll of Edward the Confessor, once an exile in Normandy, holding a crown. BL Royal 14 B VI Membrane 4

The case of Julian Assange has attracted widespread media attention as well as capturing the public imagination over the last five years. The phenomenon is not new, even if the details differ from case to case, and indeed the medieval period is littered with examples of individuals who for one reason or another found themselves on the wrong side of a ruler’s laws: Robin Hood, Hereward the Wake, Fouke Fitz Warin, Eustace the Monk. And, we should not forget the many European kings who had indeed been exiles before coming to the throne; Edward the Confessor of England (11c), Louis IV of West Frankia (10c), Harald Hardrada of Norway (11c), Æthelred I of Northumbria (8c) to name but a few. Hence, the principle of one ruler not sheltering enemies or wrongdoers of another king, found in many treaties, is not only a very old principle of international law but also one that has been hotly debated, today as much as in the Middle Ages.

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