CHAPTER I

Produced by deaurider, Barry Abrahamsen, and the Online

Distributed Proofreading Team at http://www.pgdp.net (This

file was produced from images generously made available

by The Internet Archive)

PENAL METHODS OF THE

MIDDLE AGES

------------------------------------------------------------------------

PENAL METHODS OF THE

MIDDLE AGES

CRIMINALS, WITCHES, LUNATICS

BY

GEORGE IVES, M.A.

PRINTED FOR PRIVATE CIRCULATION

1910

------------------------------------------------------------------------

CONTENTS

CHAPTER I

PAGE

PENAL METHODS OF THE MIDDLE AGES 1

CHAPTER II

THE WITCH TRIALS 107

CHAPTER III

TREATMENT OF THE INSANE 142

FOOTNOTES

FOR ALL CHAPTERS 179

------------------------------------------------------------------------

CHAPTER I

PENAL METHODS OF THE MIDDLE AGES

Prisons as places of detention are very ancient institutions. As soon as

men had learned the way to build, in stone, as in Egypt, or with bricks,

as in Mesopotamia, when kings had many-towered fortresses, and the great

barons castles on the crags, there would be cells and dungeons in the

citadels.[1] But prisons as places for the reception of “ordinary” (as

distinct from state or political) criminals for definite terms only

evolved in England many centuries afterwards[2]; whilst imprisonment as

a punishment in itself,[3] to be endured under rules made expressly

punitive and distressful, may be described as essentially modern, and

reached its worst phase in the nineteenth century.[4]

The Teutonic Tribes of the bays and forests were fierce and free. They

exemplified, in fact, the theory of Nietzsche, that liberty cannot be

granted but must be taken.[5] They had not cowered before Oriental

superstitions,[6] and as they lived in widely scattered hordes a central

government could not impose its yoke upon the savage warriors. With the

wild clansmen of the fierce Norse nations, where every man was always

ready armed[7] and boys received their weapons at fifteen,[8] the great

desideratum was the maintenance of peace.

The instinct of retaliation throbs in all men, and vengeance swift and

bloody would be sought for, which, where the kindred ties were close and

strong, might spread a feud through villages and clans, such that the

very children might be born devoted to the duty of a family revenge. The

Teutonic nations, like the free peoples they were, always assumed that

for a crime to have been committed, an individual must have suffered

injury.[9] And they conceived the aggrieved plaintiff as no cowed

weakling (or he would not have counted), but as a fighting freeman with

spear and shield, who would repay a wrong with interest, and whom, if

slain, his kinsmen would avenge.

Thus the placation[10] of the injured party was the objective of the

oldest laws. Allowance was made for human feelings[11] and impulses.

Some ancient codes[12] permitted him like for like; an eye for an eye,

and a tooth for a tooth, in the sense of so much, and no more.[13] But

the Teutonic laws offered him compensation,[14] and, when it was

possible, compelled him to accept it.[15] Thus crimes were met by

restitution, not by punishment.[16]

Every sort of injury which one freeman could do to another was first of

all atonable by bōt (a money compensation paid to the injured man or his

relations).[17] What this fine was depended firstly upon the nature and

extent of the damage done, and secondly upon the rank and importance of

the person injured.[18] For every man had his class and value; and every

form of aggression against a freeman, from a wound which killed him

outright to a blow which deprived him of a single tooth,[19] as well as

the theft of anything he possessed, had its appointed fine according to

his wer.[20]

The tariffs varied with the different tribes,[21] but the main

principle—of compensation—extends through all. In Mercia the wer-gild of

a king was fixed at 7200 shillings or 120 Mercian pounds of silver,[22]

to which great sum was added the cynebot of a similar amount which was

payable to his people.[23] The wer-gild of a thane (_i.e._ county

magnate) came to 1200 shillings, that of a ceorl (labourer) was 200

shillings.[24]

These murder-fines, however, were much heavier than they look;[25] those

of the kings,[26] numerous as they were, would in most cases have been

hopelessly unpayable by private people, and those of the thanes by

humble families. Even the wer-gild of the ceorl, or labourer, which was

200 scillings, or about four pounds, was not inconsiderable when we

remember that in Æthelstan’s time one scilling would buy a sheep, and

six scillings (or thirty pence)[27] an ox—the cost would be the price of

a small herd.[28]

So that frequently the man-fines[29] were never paid, and then we

perceive that the wise compensation system of the codes arose more out

of the fear of the vendetta than from humane principles;[30] if they

were not paid, vengeance would be let loose.

If the offender were not slain or abused,[31] if he did not escape and

live as an outlaw and a “wolf’s head”[32] (which was frequently

done,[33] for there were some ten men outlawed[34] to every one

hanged[35]), he might be sold[36] as a wite theow[37] into penal

slavery.[38] For there were slaves as a class in Christendom and in

England up to the twelfth century,[39] and they being helpless, like our

“submerged” masses, were of little account at all in the community.

Derived mainly from the conquered taken in wars and raids,[40] their

ranks were recruited by men sold for their offences, and likewise, it is

said, from those who sold themselves in times of starvation;[41] many

were sent as slaves beyond the seas,[42] and the fact that we find this

custom repeatedly prohibited[43] testifies also to its prevalence.[44]

From the poor slaves there need be no fear of vengeance or retaliation;

they were a voteless minority amidst Saxon freemen. If a slave were

slain only eight shillings were payable to his kinsfolk,[45] while a

man-bōt of thirty shillings was claimed by his master.[46] And that, it

would seem, was all on the part of the State.[47] The Church, however,

to its credit, imposed a penance, a two years’ fast.[48] Other injuries

to the theow (slave) were treated with proportional mildness,[49] but of

Church laws and discipline I shall have to speak presently.[50]

For the damage done by his slave the master was liable,[51] as for a

trespass by his cattle.[52] For the more serious offences the theow

would be handed over to the kinsfolk of the injured party, unless

perchance his master should redeem him by payment.[53] If upon

accusation he failed at the ordeal, he was to be forthwith branded the

first time;[54] but the second conviction would be capital, “seconda

vice non compenset aliquid nisi caput.”[55]

Apart from legal or revengeful penalties for wrongs done to any

freeman,[56] the theow was absolutely at the mercy of his master.[57] If

he were not allowed to “redeem his hide” by such small compensation or

atonement of which he was capable, he might have one leg fastened by a

ring to a stake, round which he would be lashed with a three-thonged

whip.[58] It was composed of cords knotted at the ends.[59] If a ceorl

were goaded into homicide, vengeance might then be taken upon six of his

kinsfolk[60] (upon the principle that the thane had six times his

value,[61] see wer-gilds, _ante_, and Maitland, _Domesday Book_, p. 53).

If a theow killed his lord[62] he was to perish in torments;[63] for

revenge was sweet,[64] and the strong took it without stint.[65]

Clearly, then, from the nature of early Saxon society, elaborate penal

machinery had no place. The freemen atoned for their transgressions with

fines when possible, and by slavery, mutilation, outlawry, or death when

they could not pay. Cruelly as the slaves might be flogged or

slaughtered, there were no prisons in the land even for them.[66] The

villages were mere groups of wooden homesteads with barns and cattle

sheds surrounded by rough stockades and destitute of roads or

communications. Even the palace of the king was a long wooden hall with

numerous outhouses, for the English built no stone houses and burnt down

those of their Roman predecessors.[67]

The Teutons, according to Tacitus, abhorred walled towns as the defences

of slavery and the graves of freedom. The Frisians forbade the

construction of any walls more than 12 feet high.[68] In the course of

time the crown, or central government, grew in power; the king, and even

the great lords, spiritual and temporal, were able to enforce obedience

and order, at any rate upon those in their neighbourhood.[69] The royal

authority could defy the vendetta, and from very early times had claimed

a share in the compensation,[70] so that, along with the wer-gild,

payable to the injured party, the wite, or additional fine, had to be

paid to the sovereign (or overlord) for the disturbance of his

peace.[71]

Sometimes he would take vengeance for the State or for an aggrieved

person.[72] Thus in the reign of Æthelstan a man might forfeit his hand

for coining, and have it nailed over the door of the mint;[73] and in

the reign of Cnut a woman might lose her nose and ears if she committed

adultery. In the early period these mutilations appear to have often

been intended to be mortal, for in the laws of Alfred and Guthrum we

read that “If a malefactor, having forfeited himself, has had a limb cut

off, and, being left to himself, survive the third night; afterwards he

that is willing to take care of his sore and soul may help him with the

Bishop’s leave.”[74]

But the maimed criminals were also allowed at large to be a living

warning to others. That the Saxons could be cruel enough when bōt was

not made, and to habitual criminals and slaves, we have seen already;

how barbarous the amputations were may be gleaned from the words of our

Danish monarch: “... At the second time let there be no other bōt if he

be foul” (at the ordeal) “than that his hands be cut off or his feet, or

both according as the deed may be, and if then he have wrought yet

greater wrong, then let his eyes be put out, or his nose and his ears

and the upper lip be cut off; or let him be scalped ... so that

punishment be inflicted and also the soul preserved.”[75]

William the Norman enjoined that offenders should not be slain outright,

but hacked about.[76] “Interdicimus,” he commands, “eciam ne quis

occidatur vel suspendatur pro aliqua culpa sed enerventur oculi, et

abscindantur pedes vel testiculi, vel manus ita quod truncus remaneat

vivus in signum prodicionis et nequicie sue.”[77]

About the tenth century, after the ending of the Danish troubles, and in

the eleventh under the Norman rule, the king was strong enough to extend

his power and protection.[78] In the twelfth the old system of bōt and

wer, designed to compensate the injured and keep the peace among a

fierce and warlike race of freemen,[79] began to give place to one under

which the king exacted punishment and tribute,[80] which he administered

and collected through itinerant judges, sheriffs, and other

officers.[81]

The heavy fines imposed on places and people[82] became an important

source of revenue to the crown[83] and to the barons and the lords of

manors[84] when they held rights of private jurisdiction[85] (Sake and

Soke, Courts Leet,[86] etc.), which were frequently delegated.[87]

The State was growing strong enough to take vengeance; the common man

was no longer feared as had been the well-armed Saxon citizen of old,

and to the “common” criminal was extended the ruthless severity once

reserved for the slaves.[88] Then likewise Glanville and the

lawyers,[89] under the influence of Rome and Constantinople, drew a

sharp and arbitrary distinction between the criminal and the civil

pleas, and the idea of compensation began to wane before the revenge

instinct now backed by power. If there was money obtainable, the king’s

judges would seize it;[90] the idea of damage done to the individual was

merged and lost in the greater trespass[91] alleged to have been

committed by the offender against the peace, against the code and king.

Up to the middle of the twelfth century[92] some counties were without

public gaols or prisoners’ cages,[93] and Henry II. commanded their

construction at the Assize of Clarendon, 1166. By the seventh

article[94] gaols were to be made in the walled towns or erected within

royal castles[95] with the king’s timber or other wood that might be

available.[96] They were evidently light improvised structures[97]—sheds

knocked up beneath massive walls of city or castle. The king’s strong

places or the larger monasteries would be prisonous enough with little

alteration. These early prisons of the Angevin kings were collecting

depots or remand prisons for the safe custody of persons accused.

Bracton, who died in 1268, expressly wrote that prison was to confine

and not to punish.[98]

Bishop Britton[99] (thirteenth century) says that only those accused of

felony were to be kept in irons, and none were to be ill-treated except

according to sentence. In the _Mirror of Justice_ we read that “every

common prison[100] is a gaol, and only the king has the keeping of

it[101]; every other man’s prison is private, etc.; and because it is

forbidden that any one be tormented before judgment, the law wills that

no one be placed among vermin and putrefaction, or in any horrible or

dangerous place, or in the water, or in the dark, or any other torment;

but it is lawful for gaolers to put fetters upon those whom they suspect

of trying to escape, but the fetters must not weigh more than 12

oz....”[102]

The captives having been collected together within the gaols would have

to wait till the next assize. It might be a long time—months (as even

now) or years[103]—for the king’s judges were dreaded—and of those who

could not get mainpernors (bail),[104] many would die of want or disease

before the justices were ready to try them.

Meanwhile the prisoners and their families were to be kept at their own

expense; according to Bishop Britton[105] the gaoler was required to

take nothing from the poor—who would in general possess nothing to be

taken—and not more than fourpence for the keep of any prisoner.[106]

None were to be detained from inability to pay the fees. Such were the

rules approved by Edward I. In practice, it appears probable that, for

the next five hundred years or so, the prisoners would be well fed if

they had means, and might be starved to death if they had not.[107]

Those who survived until the opening of the court would be brought up,

according to Bracton,[108] with their hands free, though sometimes in

leg-irons. We find the description amplified by Britton;[109] they were

to be “barefooted, uncoifed and bareheaded, in their coat only, without

irons of any kind,[110] so that they might not be deprived of reason by

pain, nor be constrained to answer by force.”[111] But thus far no

punishments had been meted out; these followed upon conviction, and were

of a physical and sanguinary character.

According to Bracton an offender might be broken on the wheel for

treason, a crime so great that it was scarcely to be permitted that the

relations should live.[112] For the “common” criminal there was

hanging,[113] and the ghastly mutilations enjoined by the Norman kings

were continued; indeed they were made more savage for many offences

after 1176.[114] Up to the reign of Henry III. the penalty for poaching

in the king’s forests was death or the loss of eyesight.[115] Rape up to

the reign of Edward I. might also involve loss of eyes and

emasculation.[116]

Stealing from a dwelling appears to have met with the same barbarous

punishment. A glimpse of the gentle ways of twelfth-century “justice” is

revealed in an account of a supposed miracle. A certain Ailward, being

accused of housebreaking (committed apparently under considerable

provocation to recover a debt), was lodged for some time in Bedford

Prison.[117] After having failed in the water ordeal and being

convicted, he was taken out to the usual place of punishment, where his

eyes were blinded, he was mutilated, and the parts were buried in the

ground. He is said to have been restored through St. Thomas of

Canterbury.

By the time of Edward I. we begin to arrive at sentences of

imprisonment, and read of such penalties as one year and then a fine, or

two years in default of fine, in the first Statutes of Westminster. For

such offences as carrying off a nun, allowing a prisoner to evade

prison, or stealing tame beasts out of parks, a sentence of three years

might be awarded besides the customary fine. As we have seen, the

profits of “justice” were highly regarded; the fines were precious

perquisites of the Crown (and sometimes of subordinate administrators

and officials as well). The prisons were used as “squeezers” to extort

them. “Imprisonment,” say Pollock and Maitland,[118] “was, as a general

rule, but preparatory to a fine. After a year or two the wrongdoer might

make fine; if he had no money he was detained for a while longer. In the

thirteenth century the king’s justices wield a wide ‘common law’ power

of ordering that an offender be kept in custody. They have an equally

wide power of discharging him upon his making a fine with the king.”

In Henry III.’s reign “The wrongdoer but rarely goes to prison, even for

a moment.[119] On the plea roll the _custodiatur_ which sends him to

gaol is followed at once by ‘Finem fecit per unam markam’ (or whatever

the sum might be), and then come the names of those who are pledges for

the payment. The justices do not wish to keep him in prison; they wish

to make him pay money.” The authors just quoted say that the fines were

generally light, and give several instances[120]—it doubtless depended

much upon the judges and the reign. But wherever there are enclosing

walls, there are certain to be abuses behind them.[121] Judicial and

administrative scandals kept on occurring.[122]

In the fourteenth century many persons are said to have perished of

hunger and thirst,[123] and many died in prison about the time of the

Black Death (1349).[124] Into the fifteenth century the complaints

continue; we read the following in the _Liber Albus_:[125] “Whereas

great outcry has been made heretofore as to many wrongs and misprisons

done by the gaolers of Newgate and Ludgate and their officers and

servants, ...” and new regulations were made (and no doubt broken, as

the others had been) respecting fees the prisoners should pay.

The sixteenth century showed no advance in the matter of humanity.[126]

Torture, which, legally or illegally, has always been a ready trick of

statesmen, developed after 1468,[127] and under the Tudor sovereigns the

rack was ever creaking to extort confessions. The “common” criminals

were treated with the utmost severity; in 1530 an Act was passed by

which all poisoners were to be boiled alive.[128] Burning was the

penalty appointed for heresy, high and petty treason[129] (_i.e._ murder

of a husband by a wife, murder of a master or mistress by a

servant,[130] and several offences against the coin), and, unlike the

punishment of boiling, continued legal until 1790.[131] The right hand

might be taken off before hanging for aggravated murder, or a man might

be hung in chains and left to perish.[132] There was the drawing and

quartering in some executions, and ordinary hangings were exceedingly

numerous.[133] Men lost their hands for exporting sheep and for

libel,[134] and there was branding, etc., for perjury, and sometimes for

persistent vagrancy.[135]

A picture of the prisons has been left us in a work of 1545. “I see,”

observes the monk whose complaint[136] is given, “also a pytyful abuse

for presoners. O Lord God, their lodging is to bad for hoggys, and as

for their meat it is euil enough for doggys, and yet, the Lord knoweth,

thei haue not enough thereof. Consyder, all ye that be kyngs and lordys

of presons, that inasmoch as ye shut up any man from his meate, ye be

bound to giue him sufficyant fode for a man and not for a dogge.” He

further declares that the charges were greater than any at the “dearest

inn in Ingland,” and says that men lay six and seven years in prison

before the oncoming of their case.

About the year 1552 the City authorities selected what had been a palace

at Bridewell[137] (given by Edward VI.) for (among other purposes)

locking up, employing, and (as heretofore, according to Holinshed)

whipping beggars, prostitutes, and night-walkers of all sorts.[138]

Later on similar detention places were also called Bridewells, after the

first one at Blackfriars just alluded to. In 1597 they planned Houses of

Correction,[139] and in 1609 it was ordered that they should be builded

in every county.[140] Though they became, in practice, one with the

common gaols, they lasted at least in name till 1865.[141] But to resume

our survey of ordinary prisons. The seventeenth century affords the

usual evidence of what walls can hide. The gaolers, as of old, appear to

have been all powerful;[142] sometimes friendly, often the reverse,

always extortionate. John Bunyan, during his twelve years’

incarceration, was allowed to work for his family—for a large part of

the time in tolerable surroundings; but while in the Gate House prison

he was charged huge fees.[143] The prisoners hung collecting bags out of

their windows on Sunday mornings.

George Fox,[144] the Quaker, agreed with the keeper and his wife for

meat and drink, chamber, and other accommodation at a certain rate. But

he refers to one of their party being put “down in the Doomesdale[145]

amongst the felons,” and this, it appears, was a “noysome, filthy,

stinking hole, where was a puddle of ... and filth over their shoes and

the ... of the felons, and straw almost broken to chaffe with their long

lying thereon and full of vermin, wherein is neither chimney nor easing

house.” Confirmatory evidence as to how felons fared in 1667 may be

deduced out of a Statute of Charles II.[146] “Whereas,” it says, “there

is not yet any sufficient provision made for the relief and setting to

work of poor and needy persons committed to the common gaol for felony

and other misdemeanours, who many times perish before their trial, and

the poor there living idly and unemployed become debauched and come

forth instructed in the practice of thievery and lewdness,” etc.

The excellent plan was proposed that the profits of the prisoners’

labour should be placed to their relief. But to find useful labour

within prison walls has always been a most difficult problem, and the

world outside was always far too busy to see to it. The prisons of the

eighteenth century were very much like those that had been before, but

perhaps we know more about them through the great work of John Howard,

_The State of the Prisons_. It is a matter of history how that grim,

conscientious Puritan went where the ruling classes neither cared nor

dared to venture.[147] For, besides the dreadful stench which stuck to

his notes and garments, deep in the windowless (window tax), airless

rooms and dungeons through which he went, down in the stale, cramped

yards[148]—when there were any—without space or sun, and in which even

the supply of water was mostly beyond the bounds and so

inaccessible,[149] rising amidst the putrefaction of those places, there

lurked the dreaded typhus or gaol fever.

It had always been about since prisons were used, and sometimes proved

the Nemesis of neglect.[150] In 1522, at the assize in the castle at

Cambridge,[151] many of the knights and gentlemen attending caught the

infection from the “sauor of the prisoners or the filthe of the house.”

Writing of the year 1577, we read in _Baker’s Chronicle_:[152] “About

this time when the judges sate at the Assize in Oxford, and one Rowland

Jenks, a bookseller, was questioned for speaking opprobrious words

against the queen, suddenly they were surprised with a pestilent savour,

whether rising from the noisome smell of the prisoners or from the damp

of the ground is uncertain; but all that were present, almost every one,

within forty hours died.” Much the same happened at Exeter in 1586[153]

and at Taunton in 1730, and some hundreds perished at both these places.

Thomas Allen, in his _History of London_,[154] relates that in 1750 “The

Lord Mayor, some of the aldermen, two of the judges, the under sheriff,

many lawyers, and a number of lookers-on, died of the gaol distemper.”

The prison was afterwards cleansed! Howard asserts that in 1773–4 more

people died from the gaol fever than were executed in the kingdom;[155]

we lost 2000 sailors (criminals were often given the choice between

punishment and the services) with the fleet in the war with

America.[156] He quotes Lord Bacon as saying that the most pernicious

infection next to the plague is the smell of the jail.[157] Such were

the mephitic dens into which were cast men, women, and children of all

sorts; and there they would rot away or survive, as the case might be,

until the expiration of their (generally short) sentences of

imprisonment, if they could pay the fees charged on their coming out; or

until they ultimately came up for trial, after which they would either

be acquitted and discharged (again when they paid the fees), or they

would be convicted and transported or executed.[158]

The number of capital offences was truly enormous. Onward from 1688 they

steadily increased,[159] owing, as has been well remarked, to the

“unhappy facility afforded to legislation by Parliamentary

government.”[160] Members who could not become ministers, and who yet

wanted to do something, often had interest enough to hang somebody, or

at least to get a law passed creating a new capital felony.[161]

Thus through the ambitions of private members and the general

callousness of the ruling class, the number of capital offences kept

ever growing, until, in theory, there were more than two hundred of

them.[162] The law, however, had overreached; rough and often most

brutal as the people of that day were, they would not enforce the

penalties provided,[163] so that the hangman’s ministrations were

invoked for only twenty-five classes of offences in London,[164] and for

not more than thirty throughout England.[165] In fact, it was found that

conscientious people refused to prosecute for the lesser crimes,

dreading to have a share in taking life. But actually the gallows load

was heavy; an instance appeared in a _Times_[166] paragraph—18th January

1801—which tells how a certain Andrew Branning, a luckless urchin aged

only thirteen, had broken into a house and carried off a spoon. Others

were with him, but they ran away, and only he was captured and brought

to trial. His story ended in two words, which were short and customary:

Guilty—Death. Thus transportation and the extreme penalty kept clearing

the prisons, but those within them were the while exploited, being

entirely the prey and property of warders, keepers, and assistant

gaolers, all of whom made the most of their positions—which might be

given out like pensions or be purchased[167]—to wring out fees[168] and

make their places pay;[169] and having what amounted to unlimited power,

and being, by the nature of their office, used and inured to witnessing

suffering, the gaolers,[170] from the beginning and right into the

eighteenth century, shrank from no means, however mediæval, by which

they could extract their fees and charges.[171] Thumbscrews and iron

skull-caps were sometimes used,[172] and were produced in court as

evidence.[173]

Prisoners might be loaded with heavy irons unless they would pay to be

allowed lighter ones.[174] They were liable to be flogged with ropes or

whips or anything that came handy,[175] the common instrument of

flagellation, however, being the formidable _membrum tauri_.[176] They

might be kept in damp dungeons and darkness; the living were sometimes

locked up with the dead. They could be set apart and purposely exposed

to utter starvation,[177] gaol fever, and small-pox, or actually done to

death by their keepers’ violence.[178]

The prisoners were robbed for room, squeezed for food,[179] and dealt

with for drink of all kinds, spirits, and tobacco, in which the

officials did a roaring trade.[180] Lastly, the new arrivals at a prison

were fleeced and pillaged by their fellow gaol-birds for “chummage” or

“garnish” money,[181] and failing this, they were frequently stripped of

their very clothing, a process termed “letting the black dog walk.”[182]

And in all these vile places there was generally no production of

anything. The prisons and Bridewells were supposed originally to set

rogues to work,[183] but the authorities took no trouble to organise it,

and throughout the detention-places useful employment (if we except

occasional work done for the gaoler, or permitted in particular

instances) was impossible. It was found in 1818,[184] that, out of the

518 prisons in the United Kingdom, in 445 there was no employment, and

that in the remaining 73 it was of the slightest possible description.

Such were the bad old prisons of the past. Their faults were many,

glaring, and obvious, but they had yet a human side, too, and a better

one. Though the idiot might be laughed at and the new-comer despoiled,

though the keepers might be brutal and the atmosphere poisonous, still

in the midst of evil there would be individual acts of kindness and

self-sacrifice. If the captives were in chains and rags,[185] they were

not cut off from the outside world or striped and spotted in a livery of

shame.[186] If gaols were hotbeds of infection and cesspools of

corruption,[187] at least they were not the ghastly whited sepulchres

which were built in the nineteenth century.

MITIGATIONS AND PECULIARITIES

So far we have endeavoured to trace the course of the usual punishments

inflicted in various ages on the “common” criminals when they were

brought up charged with the graver crimes. There were, however, ways of

escape open, which are sufficiently general and important to be dealt

with separately.

_The Ordeals._—The invocation of miraculous guidance, to determine the

guilt or innocence of a person accused, has been resorted to from time

immemorial by all manner of methods throughout the four continents.

There were many ordeals in mediæval England. There was the corsned, or

consecrated barleycake, which was supposed to choke a perjurer if he

tried to swallow it; when mouth and throat were dry from fear or

excitement this was quite possible. There was a test by immersion, in

which the accused had to sink two ells deep—over seven feet. A rope was

attached round the body, and it is interesting to notice that Archbishop

Hincmar (ninth century) gave express directions for the rescuing of

those who, by thus sinking, were declared to be innocent.[188] There was

a test tried with hot water, in which a stone had to be picked up out of

boiling liquid without the arm being scalded. There was a test, to pass

which the hand had to be inserted into a glove of hot iron without being

burned by it. There was a test in which the suspected person must walk

through flames without being scorched. There was a test which consisted

in having to walk over nine red-hot ploughshares, blindfolded and

unseared.[189]

Perhaps, however, the best-known ordeal was that which was worked out

with a heated iron bar or ring.[190] This generally weighed three

pounds, and had to be carried—they were always personal and picturesque

in the middle ages—for a distance of nine times the length of the

bearer’s foot.[191] His hand was then bound up and left alone for three

days.[192] At the end of these it was examined, and if found clean and

free from suppuration[193] the accused was acquitted.

Doubtless, in deeply superstitious times the ordeals, with their solemn

prayers and incantations, were fairly effective. But yet they do not

seem to have been altogether trusted, at any rate in the later

period,[194] since even those who passed successfully through them were

obliged to quit the country within forty days.[195] Most people,

however, who underwent ordeals had been arraigned by twelve knights of

the county (who thus resembled a Grand Jury) and were already under

grave suspicion;[196] the ordeal, then, could only say not proven.

Moreover, it would appear from various sources that the tests and trials

were frequently tampered with,[197] the elaborate ritual giving plenty

of opportunity;[198] at least one king scoffed at priestly

acquittals.[199]

After incurring the disapproval of many Popes, the ordeals were

condemned at the fourth Council of Lateran in 1215, and by the

eighteenth canon priests were forbidden to pronounce their blessing upon

them.[200] The ordeals were abolished in England in the reign of Henry

III. and the juries took their place.[201]

Another species of ordeal, and certainly another means of escape from

the criminal law, was the wager of battle. This very ancient mode of

trial[202] was introduced into England by the Normans under William I.

If a man made a charge against another, and proofs of guilt were not

obvious and overwhelming, the latter could demand trial by battle,[203]

unless the complainant were over sixty years old or were sick and

infirm,[204] or laboured under some physical disability,[205] in which

case he might choose the ordeal.[206] Priests, infirm persons, and women

might have champions to represent them.[207] The knights fought with

their usual weapons,[208] the plebeians with staves forty-five inches

long, which were tipped with iron heads shaped like rams’ horns.[209]

They were to be bareheaded, barefooted, and close-shaven; and so they

fought till death or surrender,[210] at first with the clubs, and

afterwards, failing them, in hideous grapple, killing as best they

could. If the accuser were defeated he could be committed to gaol as a

calumniator,[211] but was not to lose life or limb; he was, however,

fined sixty shillings and lost civil rights.[212]

If the person who was accused—were he knight or peasant—yielded, he was

then forthwith hanged or beheaded as being guilty.[213] If, however, he

prevailed in the combat or defended himself till the stars came

out,[214] he might leave the field as being acquitted,[215] unless,

perchance, the justices desired to put him on trial for something else,

which they occasionally did.

The custom of trial by battle, along with all other kinds of

ordeals,[216] dropped out of practical usage during the thirteenth

century,[217] but continued the law for five hundred years afterwards.

In 1818 it was recalled into action.[218] One Abraham Thornton was

strongly suspected of having outraged and murdered a girl, Mary Ashford.

Although he was acquitted when tried by a jury, he was immediately

accused by her brother and heir-at-law, and claimed to defend by the

wager of battle. The fight was refused by the plaintiff, and shortly

afterwards there was passed “An Act to abolish Appeals of Murder,

Treason, Felony, or other Offences ... and Wager of Battel,”[219] so it

could not be claimed again.

Another haven of refuge from the clutches of the State was found within

the pale of SANCTUARY. Although, like prayer or sacrifice,[220] existing

round the globe from the beginning, we may confine ourselves to

Christian shelters, as they alone affected our laws.

The early Church doubtless afforded refuge as soon as it possessed the

power to do so, and gave asylum from the reign of Constantine.[221] Laws

were made on the right of refuge by Theodosius in 392,[222] boundaries

of sanctuary were extended by Theodosius junior in the fifth

century,[223] while many kinds of offenders were debarred from it under

Justinian (483–565).[224]

The saving power of sanctuary[225] would seem to have been but feeble

and tentative in the earlier period, since debtors to the State, Jewish

converts who were debtors, heretics and apostates, the slaves of

orthodox masters (the slaves of heretics and heathens obtained their

freedom[226]), and persons guilty of the more serious offences, were

refused privilege.[227]

But the protection of the mighty Roman Church was to be something more

than a mere respite for the lesser grades of offenders. In the year 511

a Council of Orleans[228] ordered that criminals who sought refuge in a

church or house of a bishop should not be dragged forth from it. Even

the slave given up to his master was not to be hurt by him. About a

century later Pope Boniface V. (619–625)[229] commanded that none who

had taken refuge should be abandoned. The same spirit is found in the

_Decretum Gratiani_ compiled in 1151. Pope Innocent III., in a letter

written in 1200,[230] ordered that only night robbers, bandits, and

persons doing violence within the church should be given up.[231] And

this we find reaffirmed by Gregory IX. in the year 1234.[232] In 1261

Boniface, Archbishop of Canterbury, in his Constitutions[233] expressly

forbade that any obstacle should be placed in the way of food being

brought to such as were in a sanctuary—so much had the Church increased

in power since Alfred’s time—and that any should be molested who, having

taken it, had forsworn the country.[234]

The exiles to whom this thirteenth-century archbishop alludes were

persons who had fled into churches, where they could then claim refuge

for forty days.[235] The buildings were watched that no one should

escape, and if a man got away the parish was fined. At the end of this

period the refugees must surrender,[236] but they might make an oath

before the coroner admitting their guilt, and also promising to quit the

realm. A road and port of destination were then assigned them,[237] and

they might travel thither “with a wooden cross in their hands,

barefooted, ungirded, and bareheaded, in their coats only.[238] And,”

said the king, “we forbid any one under peril of life and limb to kill

them so long as they are on their road pursuing their journey.”[239] But

they would forfeit goods and chattels if they had any.[240]

Under the masterful tyranny of Henry VIII. it was held that too many

British subjects escaped this wise, and it was enacted in 1530[241] that

those who had taken sanctuary should not leave the realm, but should be

sent to one of the privileged places (if it were not full, which at that

time meant if it contained not more than twenty people), there to remain

as sanctuary persons for the rest of their lives; and they were also to

be branded on the thumb.[242]

The great sanctuaries comprised Westminster Abbey, and at least thirty

other celebrated monasteries,[243] amongst which were St.

Martin-le-Grand, Beverley, Hexham, Durham, and Beaulieu, which possessed

special charters and immunities.[244] Though traitors, Jews, infidels,

and those guilty of sacrilege were not to be received, and though even

the peace of a minster might, in the strifes of State, be broken through

as in 1398, or evaded as in 1483, yet those within were generally safe

from all men. A follower of Jack Cade[245] was protected against the

king, and even one of the murderers[246] of the little princes in the

Tower found refuge in St. Martin’s Sanctuary.[247]

There were whole colonies of these fugitives round the great abbeys

already mentioned. “The right of asylum,” says Dean Stanley,[248]

“rendered the whole precinct a vast Cave of Adullam for all the

distressed and discontented in the metropolis who desired, according to

the phrase of the time, to take Westminster.” But the power of the State

increased more and more, and the dominion of the Church was sapped

away.[249] In 1483 King Henry VII. obtained a Bull from Innocent VIII.

which allowed malefactors to be taken from the sanctuaries if it were

proved that they had sallied out from them to commit crimes. In 1504 he

procured a Bull allowing him to take out persons suspected of treason.

In 1534 King Henry VIII. said that lese-majesty was treason, and

deprived those guilty of privilege.[250] In 1535 sanctuary persons were

forbidden to carry weapons or to go out between sunset and sunrise.[251]

In 1540 many sanctuaries were extinguished, and several offences, such

as wilful murder, rape, burglary, and arson, were excluded from

privilege.[252]

The sanctuary at the Abbey was broken up in 1566,[253] and doubtless all

the others came to a sudden end upon the dissolution of the monasteries.

In 1604 the old rules and laws about sanctuaries were repealed.[254] In

the year 1623 all rights of refuge were taken away.[255] The idea

lingered in the popular imagination, however, and in 1697 it had to be

pointed out by statute that arrests for debt could be made in “pretended

privileged places.”[256] These districts (such as the Mint, Suffolk

Place, etc.) were alluded to again in 1722,[257] and likewise in

1724[258] as regards Wapping, Stepney, in Middlesex—more than a century

after legal abolition.

Yet another way was open to people of good position or repute by which

they could extricate themselves from the ordinary course of law[259]

(but not against the suit of the king, and there were also other

limitations), and that was by means of formal COMPURGATION. We have seen

that in Teutonic communities the oath of a slave had no legal value,

while the oath of a thane was worth those of six labourers. Thus kings

and bishops might sometimes rebut accusations by means of their word

alone.[260] The Visigoths allowed an accused person (of credit) to reply

in this manner,[261] but the practice was condemned by the Church as

inciting to perjury.[262]

The usual course[263] was for the accused to obtain eleven or twelve

compurgators[264]—relations, neighbours, or fellow-craftsmen who would

swear with him to the justice of his cause.[265] Perjury was indeed

often suspected in these compurgations, and if a man of bad character

got his co-witnesses[266] (and if he could not he was generally sent to

the ordeal) he was frequently banished in spite of their testimony.[267]

In the beginning of the thirteenth century Pope Innocent III. modified

the oath,[268] and afterwards witnesses swore only to character, to

their belief in the accused’s credibility. Compurgation appealed

especially to the clergy,[269] and was even called the _Purgatio

Canonica_.[270] Cut off by their calling from all lay connections, they

could rely the more upon their own brethren. It was by solemnly swearing

with twelve priests as compurgators that Pope Leo III. elected to clear

himself from certain accusations, in the presence of Charlemagne (in

A.D. 800);[271] and in 803 that emperor ordered priests to defend

themselves by taking an oath with three, five, or seven compurgators.

The practice began to decline towards the close of the twelfth

century,[272] but still lingered on into the sixteenth century in

England, and in isolated cases to later times. The Wager of Law was not

formally repealed till 1833.[273]

THE RULE OF THE CHURCH

The Christians had always been an exclusive body of people, at first

from fear, and afterwards from fanaticism. They excommunicated all

offending members, thus not only cutting them off from fellowship, but

also depriving them of those rites which in their creed were necessary

for salvation. This custom of excluding from communion was from the

first a formidable spiritual weapon among believers; what it became when

the Christians could also wield the sword of temporal power we shall see

in the course of time. In the early days they were a world within the

world—vehement in convictions, stimulated by persecutions, and extremely

well organised.

Their bishops arbitrated and ruled in ecclesiastical matters,[274] and

also in civil suits between individuals who were unwilling to go to law

before unbelievers, and doubtless they sat in judgment on their own

followers before the advent of the regular Ecclesiastical Courts of

subsequent ages.[275] From the Apostolic times they had resented resort

to external tribunals,[276] and, in a series of Councils,[277] the

Church had forbidden appeal to the civil powers against the decisions of

Christian Courts; by the eighty-seventh Canon of the Fourth Council of

Carthage (A.D. 398) no Catholic was to bring any cause, whether just or

unjust, before an heretical judge.

The time came when the State accepted Christianity, and when that

religion influenced the laws.[278] Under Constantine the civil officers

were obliged to carry out the decrees of the Christian bishops, who

exercised a wide jurisdiction. In 376 their Courts were given the same

status as belonged to those of the imperial magistrates.[279] From the

beginning, and under the Theodosian and Justinian Codes, the bishops

possessed great disciplinary powers; and after the death of Charlemagne,

in the midst of a period of violence and disruption, the Ecclesiastical

Courts were firmly established and gained in power as the centuries went

by.[280] They had their own rules and codes to determine cases,[281] and

came to adjudicate upon many things which do not concern us, such as

tithes, breaches of covenant, births, marriages, and wills.[282]

It used to be a custom in ancient times for the bishop to go journeying

through his diocese. As he entered each parish he would be met by the

inhabitants, from amongst whom he would select seven men of mature age

and strait character,[287] who were then sworn on holy relics to relate

all they knew, or possibly imagined, about their neighbours and their

shortcomings. The bishop or his archdeacon[288] would then investigate

and summon suspected persons before them for examination and

sentence.[289]

It would appear that these inquisitions with the _Testes Synodales_

could be extremely punitive when undertaken by a vigilant and censorious

Christian moralist. We find that an energetic Bishop of Lincoln so

harried his diocese,[290] and with amazing and minutely personal

examinations[291] unearthed so many scandals among all ranks of the

people,[292] that he was checked by Henry III.[293]

Although the nations and the laws of Europe ceased to be pagan, and

became Christianised, the Church, with its haughty claims and

well-learned rulers, sought for autonomy. Had not the Apostle Paul said

that they should judge angels,[294] and that the saints some day should

judge, the world?[295] After such a text it was easy to claim that the

Emperor Constantine had declared at the great Council of Nicaea[296] (in

A.D. 325) that priests could be judged by God, but not by men. The

clergy wanted to be tried by their peers, and looked askance at the

other Courts; the times were given over to violence, the punishments

were always sanguinary, and the lay lords and judges were exceedingly

rapacious.[297] If there were no more open pagans in high places, there

came along various heretics certain to be abhorred at least equally.

So the Church started on a long contention, in which there were many

struggles, with local victories and defeats in different countries. In

the earlier period the State was the stronger; a law of Gratian[298]

(fourth century) reserved to the Secular Court all but the slight

offences of the clergy. It was laid down at the Council of Agde in

506,[299] and again at the Council of Epaone in 517,[300] that while the

clergy should not appeal to the civil power as plaintiffs,[301] they

were to attend if summoned to the Secular Courts. At a Council of Macon

in 581[302] it is implied that criminal cases were to be conceded to

them. At the same time the clergy were forbidden to accuse one another

before civil magistrates.[303]

The fear and jealousy of the Secular Courts persisted; by a Canon of the

Third Council of Orleans (A.D. 538),[304] the bishop’s permission was to

be given before a cleric could attend as plaintiff or defendant. By the

fourth Canon of the Fifth Council of Paris (A.D. 615),[305] no judge was

to try any ecclesiastic without first giving notice to his ordinary;

this order is repeated in a Capitulary of Charlemagne of A.D. 769. Pope

Gregory the Great (540–604)[306] had contended for the principle that a

clerical defendant was entitled to be tried by his own Court, and this

was established by Welsh Canons of the seventh century.[307]

A Capitulary of Charlemagne gave the bishops criminal jurisdiction over

the clergy,[308] though the emperor reserved to himself the right of

final decision in all cases.[309] By the year 853 his grandson, the

superstitious Charles the Bald, was appealing to the bishops at Soissons

against the person of a humble clerk who was accused of forging the

royal signature.[310] In A.D. 866[311] Pope Nicholas I., in his advice

to the Bulgarians, declared that laymen had no right to scrutinise or

condemn any priests, who were to be left to the control of their

prelates. The Council of Ravenna in 877[312] ordered that none who were

under the bishops’ guardianship should be seized by the seculars.

The two systems drifted farther and farther apart;[313] clerks were

forbidden under pains and penalties to attend secular summonses. The

Emperor Frederic II.[314] decreed in 1220 that no one might drag a clerk

before a secular tribunal; any lay judge who convicted one was to

forfeit his place, besides incurring spiritual penalties.[315] The

Emperor Charles IV. made similar laws in 1359 (_Constit. Caroli IV._ 5),

and punished the imprisonment of a clerk with outlawry and loss of

possessions.[316] This was confirmed by Pope Martin V. in 1418. The

right to clerical immunity[317] was reasserted at the twenty-fifth

session (20) of the General Council of Trent in 1563.[318]

The Church, as we have already seen, had been allowed and appointed to

regulate the faith and morals of all men. It also claimed, and, in the

long-run, secured, the right to demand all clerics accused of

crimes,[319] except in cases of high treason, highway marauding,[320]

and deliberate house burning,[321] offences against the laws of the

forest (that is hunting the king’s deer, etc.),[322] and misdemeanours

(_i.e._ slight offences).[323] In time all clerks claimed privilege of

clergy, and these consisted not only of those in priests’ orders[324]

(of minor orders there were four degrees below subdeacons[325]), but of

all those who were tonsured and had their hair cut in the clerical

fashion.[326]

All anywise connected with Church work, such as the readers, acolytes,

and door-keepers, could claim clergy.[327] So that the state of

clerkship was frequently claimed,[328] both justly and fraudulently, by

extremely humble people, and the existence of the tonsure, and also its

genuineness, were very important in criminal cases, for it was sometimes

assumed as a claim to immunity,[329] and occasionally the accused would

have their heads shaved by the prosecutors in order to obliterate

it.[330]

By the statute _Pro Clero_ of 1350,[331] “all manner of clerks, as well

secular as religious, which shall be from henceforth convicted before

the secular justices aforesaid for any treasons or felonies touching

other persons than the King himself or his royal majesty, shall from

henceforth freely have and enjoy the privilege of Holy Church, and shall

be, without any impeachment or delay, delivered to the ordinaries

demanding them.” This came to mean immunity for all who could read.[332]

A man who claimed clergy was examined as to his scholarship, being

required to read a passage,[333] usually from the 51st Psalm, which was

called his “neck verse.”[334] Then said the lay Court to the bishop’s

representative, “Legit ut clericus?” and the examiner replied, “Legit,”

or “Non legit”;[335] and the person would either be remitted to the

ordinary or sentenced by the judge, although it was forbidden to teach

an accused person his letters[336] while he awaited trial (and he might

have to lie five or six years in the bishop’s prison until he could be

presented at the assizes—Pollock and Maitland, _Hist. Eng. Law_, p.

442); yet foreigners might read from books in their own language,[337]

and the blind could claim clerkship if they could speak in the Latin

tongue.

Clearly, to be tried by the Ecclesiastical Courts was looked upon as

being a privilege and an advantage by the person accused.[338] He had

every chance of acquitting himself[339] by means of the Canonical

Purgation (see Compurgation, _ante_);[340] and even if he happened to be

condemned by bishop or abbot,[341] in case he failed to obtain the

necessary compurgators, or were delivered over _absque purgatione_

(_i.e._ not allowed to make his purgation),[342] or even if, from

religious fears, he refused to swear innocence,[343] the ecclesiastical

punishments were generally merciful, except for such deadly sins as

heresy or witchcraft.

The clergy were forbidden by the Canons to impose sentences of death or

mutilation;[344] the injunction was repeated by Archbishop

Ecgberht.[345] “We threaten anathema,” wrote Archbishop Richard in the

year 1175,[346] “to that priest who takes the office of sheriff or

reeve.” Again in 1215 were the clergy forbidden the judgment of

blood.[347] They were not, said a Council of Toledo,[348] to sit as

judges, even at the command of a ruler, in cases of treason, unless he

first promised to remit the red penalties. At the Council of

Auxerre[349] the clergy were prohibited from witnessing the usual

torturing, of the prisoners, or from lingering round the trepalium when

it was in progress. In fact, except for acts or thoughts which it

considered to be high crimes against the soul, the Church was milder

than the mediæval State.

The Church being debarred from the employment of the swift and

sanguinary penalties of those times, had to resort to other methods of

disapproval, and it evolved the penitential discipline. At first it

wielded only spiritual weapons—none the less terrible in those days

because they were ghostly—and by refusing access to Church or Communion,

and thereby (as all concerned fully believed) closing on kings the

everlasting doors, it sometimes brought the mightiest to their knees to

implore pardon from the priests of God.[350] On confessing a crime, or

upon being condemned, all manner of tasks and toils were laid upon the

penitent. Sometimes they were capricious and poetic; thus if a man had

slain his near kindred,[351] the weapon with which the deed was

committed could then be forged into a penal chain, and, bound therewith,

arrayed in the sclavinia,[352] or, it might be, naked, he would have to

trudge away, staff in hand, to his destination, which might be some

local shrine, or that of St. Thomas of Canterbury; but which might be

far off, across and beyond the seas, to Compostela, Rome, or

Palestine.[353] The ordinary penitent wore no chains, but he was usually

required to go unarmed, to eat no flesh, to take no strong drink, and to

abstain from warm baths, and sometimes he had to fulfil weird and

painful conditions particularly imposed by his penitentiary;[354] as,

for instance, when Robert, called the Devil, was ordered by a certain

hermit[355] to eat only bones and scraps which had been thrown to dogs,

and to be dumb and act like one insane. Our own King Edgar[356] was

condemned not to wear his crown for seven years. Examples could be

multiplied indefinitely. A much-employed form of correction consisted in

imposing penitential fasts,[357] during which the offender was to

subsist upon bread and water,[358] and was subject to many disabilities

and restrictions.[359] These sentences might be for any period ranging

from a single day to twenty years, and even longer, and all the while

the penitent was supposed to drag out his existence in shame and

disgrace, making prayers for deliverance.[360]

The Church allowed class distinctions in several ways;[361] offences

might be punished according to the rank of the aggrieved party, so that

the penance for the murder of a bishop was for twelve or fourteen years,

or longer, upon bread and water, while the slaying of a deacon could be

atoned for by seven or ten years’, and of a layman by four, five, or

seven years’ discipline.

On the other hand, people, and especially the clergy, were liable to be

sentenced more severely in proportion to their rank.[362] Thus for

homicide, where a layman would get four or five years’ penance from the

ordinary,[363] a clerk would receive six years, a priest ten, and a

bishop as much as twelve years (seven on bread and water).[364] These

long-enduring penances sound severe, and doubtless were for devout

believers. But the Roman Church, always a marvel of organisation,

allowed its bishops very great latitude, both in imposing and removing

penances. “I require not the continuance of time,” said Chrysostom, “but

the correction of the soul; demonstrate your contrition, demonstrate

your reformation, and all is done.” By the authority of the

Councils[365] they could increase or mitigate sentences,[366] so that

the infirm and the over-sensitive might have their tasks modified.[367]

But they dealt gently with the men of might;[368] the wind was tempered

to the woolly lamb.[369] In spite of Cuthbert’s Canons at Cloves-Hoo in

the eighth century,[370] the rich were generally enabled to perform

their pilgrimages vicariously (whereby there had arisen a class of

professional pilgrims; Thrupp, p. 239, etc.), and to atone for sins by

almsgiving and payment.[371] “Thou hast money, buy off thy sin,” Ambrose

had written in the fourth century.[372] “The Lord is not for sale, but

thou thyself art for sale. Restore thee by thy works. Buy thyself back

by thy money.”

This exhortation was followed and given the lowest possible

interpretation in the Canons made (by Dunstan, probably) in the reign of

King Edgar in the year 963.[373] When a great man had been condemned to

fast, say seven years, he was to lay aside his weapons, and take his

staff in his hand and walk barefoot, clad in wool or haircloth, and he

was not to go to bed or banquet for three days.

He was to take to his assistance twelve men, and they were to fast three

days on bread, raw herbs, and water: thus thirty-six fasts were kept. He

was to get together seven times 120 men and set them to fast three days;

thus he secured 7 × 120 × 3 + 36 fasts, or 2556, which meant as many

fasts as there were days in seven years, counting a leap year! And thus

his penance was done, or rather evaded.[374]

But the Church did not usually allow its penalties to be disregarded;

against heretics there were, even in England, severe statutes,[375] and

they would be seized by the civil forces and burned alive. Any one who

had offended against the Canons, and who refused to do penance, could be

excommunicated, and then he became liable to arrest.[376] In this

country if the offender ignored it for forty days,[377] the King’s

Court, on the request of the bishop,[378] issued a Writ of

Significavit,[379] or some similar injunction, ordering the sheriff to

imprison him until he had satisfied the claims of the Church.[380]

The hierarchy, although, as we have seen, debarred from directly

inflicting such penalties as death or amputation of members, resorted to

many forms of corporal punishment. Floggings for penance or discipline

were administered frequently;[381] the younger monks in the monasteries

commonly received thirty-nine stripes.[382]

But the bishops had other and worse penalties in reserve, and, unlike

the secular rulers, they employed imprisonment as a means of punishment

in itself. The Catholic Church, with its ideals of cloistral life and

ascetic seclusion, sought to produce remorse through mental affliction,

and in its high-walled abbeys and gloomy courts had buildings ready to

immure any one. The first cells were among the _exedrae_ round churches

and bishops’ houses and were called the _decanica_,[383] while

refractory monks were freely imprisoned in the great monasteries.[384]

Though the ecclesiastical punishments[385] were accounted generally

merciful—as we shall see presently from English comments on them—they

could be pitiless enough on occasions, especially against heretics. The

secret and dreadful Inquisition had its own prisons,[386] in which it

tortured its victims by every means that subtlety could suggest, and in

which the mind-wrecking results of solitary confinement were probably

first discovered, and at any rate utilised.

Already back in the thirteenth century the authorities had frowned on

prison association.[387] In 1229 a Council of Toulouse ordered that the

“converted” heretics (_i.e._ those who had recanted from the fear of

execution, and who were even then sentenced to imprisonment for life;

_vide_ Lea, on Laws of Frederic II., Bull of Gregory IX., etc., in his

_Middle Ages_, i. pp. 321, 484) should be kept from corrupting others.

The new prisons built for the Church and the Inquisition[388] were

ordered to have small dark dungeons for solitary confinement. In 1246 a

Council of Beziers[389] ordered that the captives should be kept

separate in secret cells, so that no one might corrupt another. It

speaks of the “enormis rigor carceris.”

The prisoners of the Church[390] were subjected to various kinds of

incarceration. There was the _Murus Largus_, under which they were

allowed about the place;[391] the _Murus Strictus_, _Durus_, or

_Arctus_, by which they were supposed to be confined in separate cells

upon bread and water;[392] and the _Murus Strictissimus_, where they

were kept in dungeons and in heavy irons.[393] The Inquisition employed,

besides, innumerable torments, and could learn little from the

imaginings of Dante; but that dread organisation has a history of its

own.

Apart from it, the bishops[394] possessed their prisons, and the great

convents had penal cells,[395] and these they would use to inflict

penance or punishment.[396] Thus at Canossa, in 1077, Pope Gregory

VII.[397] consigned the rebellious German prelates to solitary cells

with bread and water dietary.

Again we may read of another example occurring in the year 1283. A

certain Brother John had, it appears, bitten his prior’s finger “like a

dog,” it was said; and for this we find the bishop ordering the outraged

prior[398] “to keep the said Brother John in prison under iron chains,

in which he shall be content with bread, indifferent ale, pottage, and a

pittance of meat or fish (which on the sixth day he shall do without)

until he is penitent.” A worse fate befell Alexander de Langley in the

same century.[399] This unfortunate creature was a man of great culture

and was the keeper of the abbot’s seal. Either from approaching general

paralysis, or from some other form of insanity, he passed into a state

of extreme exaltation, perhaps to the extent of being, as they would

take it, mutinous or blasphemous. A severe flogging having failed to

restore his sense of proportion, he was consigned in fetters to a cell

in which he ultimately died, and was buried, the corpse still chained.

There had also existed within the monasteries the dreadful punishment of

solitary confinement known as _In Pace_. “Those subjected to it,” says

Dr. Lea,[400] “died in all the agonies of despair. In 1350 the

Archbishop of Toulouse appealed to King John to interfere for its

mitigation, and he issued an ordinance that the superior of the convent

should, twice a month, visit and console the prisoners, who, moreover,

should have the right, twice a month, to ask for the company of one of

the monks. Even this slender innovation incurred the bitterest

resistance of the Dominicans and Franciscans, who appealed to Pope

Clement VI., but in vain.”

There could indeed be abuses and cruelties in ecclesiastical prisons, as

there always are where high walls conceal. For instance, we may

read[401] that in A.D. 1283 certain monks were seized by the Abbot of

Westminster, “and so greatly beaten that one of them has miserably

expired.” There were cases where the Church took the extreme step of

degrading from orders. In the very early period this often meant that

degraded clerics would be immediately claimed by the secular authorities

and set servile tasks[402]—after which they could not be reinstated.

Very often they were shut up in the monasteries,[403] a course which the

bishops preferred to remitting them to lay punishment.[404] Innocent

III. (1198–1216), however, directed that clergy who had been degraded

should then be handed over to the secular powers.[405]

But in actual practice clerks were not often totally degraded.[406] To

be deprived of orders was looked upon as a terrible punishment;[407] it

was the final casting from the fold and was inflicted with great

difficulty.[408] Three bishops were required to degrade even a deacon;

six were necessary to unfrock a priest; and it took twelve prelates to

adjudicate upon a bishop.[409]

When any were degraded, excommunicated, and sent to the seculars, the

sanguinary lay penalties took their course.[410] The chief offence for

which the Church withdrew all protection was obstinate or repeated

heresy. In the earlier period those found guilty were branded on the

forehead[411] and cast out[412] (as once from Oxford, to die of cold and

starvation) excommunicate, or they might be imprisoned and have their

property confiscated.[413] But with the rise and multiplication of

militant sectaries, the Church urged the State to proceed to

extremities.

Heretics were ruthlessly burned alive by popular custom[414] (and were

sometimes “lynched” like negro criminals in the United States; _vide_

Lea, _Middle Ages_, i. pp. 219, 222, 308), and in time this became

formally recognised.[415] Pedro of Aragon in 1197, the Emperor Frederic

II. by the _Edict of Cremona_ in 1238, Louis IX. of France by his

_Établissements_ in 1270, and Henry IV.[416] of England in 1400, made

burning at the stake the legitimate punishment of persistent or relapsed

heretics.[417]

But it was not the severities of the Church that kept arousing the

jealousy and opposition of the secular power. It was the immunity it

afforded to those under its protection[419] which moved the State to

attack clerical privileges, and, in the course of ages, to remove them

entirely. In Saxon times lay and episcopal authorities acted closely

together, but William of Normandy, doubtless continuing the Continental

movement already alluded to, separated the ecclesiastical from the

secular courts.

King Henry II. had succeeded to the throne after a period of civil war

and devastating brigandage, in which the Church had fortified its

position and extended its jurisdiction,[420] and was bent upon

reasserting the power of the central government. He found that the

clergy and the clerks[421] were outside his control, and in the middle

ages they were a numerous body,[422] as many people were received into

orders who had little or nothing to do in their own profession, and who

were debarred by rule from obtaining a livelihood otherwise.[423] So the

king employed all his efforts to place the clerks under his justices.

A crucial case arose in 1163. A certain Philip de Broi or de Brois,[424]

who was probably an Archdeacon of Bedford and a Canon of Lincoln, had

previously escaped personal punishment on a charge of manslaughter, but

was afterwards denounced as a murderer by Simon FitzPeter, who was one

of the king’s justices. On this he protested vehemently and abused the

judge. There had been several other cases about that time, including a

bad one of murder and rape by a cleric from Worcester,[425] and another

of homicide out of Salisbury,[426] in which the offender escaped with

imprisonment, and King Henry took action with great fury.[427] He

claimed to have been insulted in the person of his delegate, and ordered

that de Broi should be brought to trial, not only for this, but for the

original manslaughter; he wished, in fact, to send him to the gallows.

But the archbishop refused to reopen the matter already tried and

decided, but for having insulted the king’s officer the rebellious

priest was severely dealt with,[428] as he was stripped and flogged

before the angry judge, and lost his office and stipend on being

banished for two years.[429] The king was dissatisfied, desiring nothing

less than the death of the canon, and vigorously proceeded towards the

subjugation of the clergy.

In 1164 he promulgated the _Constitutions of Clarendon_, by which he

desired that criminous clerks should incur the lay penalties. The

offender was first to be accused in the temporal court;[430] then tried,

convicted, and degraded by the ecclesiastical tribunal; thence sent back

for sentence to the secular court, to receive the customary draconic

punishments. But Archbishop Becket and the English hierarchy declared

that to degrade a clerk and then remit him to the secular judges was to

punish him twice for the same offence.[431] “Affliction,” they said,

quoting a Hebrew prophet,[432] “shall not rise up a second time.” All

they would concede was that if a clerk after being degraded[433]

committed the offence again he might be handed over as an ordinary

layman.[434]

The death of Archbishop Thomas stayed all Henry’s plans as regards the

Church. “The temporal courts maintained their claim to bring the

criminous clerk before them; they abandoned their claim to punish the

degraded clerk.”[435] In the thirteenth century it had become the custom

that the clerk[436] should first be indicted and inquired upon before he

could claim his clergy;[437] by the reign of Henry VI.—1422–1461—he must

first be convicted[438] before being passed into the hands of his

bishop.[439]

In 1261 Archbishop Boniface[440] ordered that the clerks in their

bishops’ custody for capital crimes should suffer perpetual

imprisonment. In 1275 Edward I. expressly ordered that the bishops were

to allow no clerks to depart without purgation.[441] In 1276,[442] the

_Bigami_, _i.e._ the persons who had been twice married or those who had

married widows[443] (highly respectable acts at the present time), were

excluded from claiming clergy.[444] In 1279 Archbishop Peckham decreed

in his _Constitutions_:[445] “Let not clerks that are in prison for

their crimes, and afterwards delivered to the Church as convicts, be

easily enlarged, or admitted to purgation upon too slight pretence, but

with all solemnity of law and with such provident deliberation that it

may not offend against the king’s majesty or any that have a regard to

equity.”

In 1350 there came the statute _Pro Clero_.[446] Many persons had, it

appears, been seized by the seculars. By this Act the Church’s

privileges were reaffirmed,[447] and the offending clerks were ordered

to be handed over to the spiritual courts. But for this grant the king

demanded that the clerical convicts should thenceforth be safely kept

and duly punished, “so that no clerk shall take courage to offend for

default of correction.” Thus urged by the Crown, and perhaps fearful of

other enactments, Simon Islip, Archbishop of Canterbury, endeavoured to

make things harder for the Church’s prisoners. “They are,” he complains,

“with so much backwardness and favour committed to gaol, and are so

deliciously fed there, that the prison intended for a punishment for

their crimes is turned into a refreshment and delicious solace, and they

are pampered in their vices by ease and such inducements and yet make

their escape out of custody as injurious to them.... And some

notoriously infamous criminals, that are in truth wholly without excuse,

are yet so easily admitted to their purgations, that every clerk thus

delivered (by the secular judge) hath sure hopes of returning to his

former evil life by one means or other.... Therefore we have thought fit

thus to ordain concerning the imprisoned clerks[448] ... (they are) to

be closely imprisoned with all proper care and expedition according to

the quality of their persons and the heinousness of their crimes, that

they may not to the scandal of the Church return to their former way of

life from an imprisonment intended for a punishment.” Clerks guilty of

bad offences are, on Wednesday, Friday, and Sabbath day, to have bread

and water; on the other days, bread and small beer; “but on the Lord’s

day, bread, beer, and pulse, for the honour and eminence of that day.

And let nothing else be given them by way of alms or gratuity from their

acquaintance and friends, or for any pretence or reason whatsoever; nor

let any purgation be granted them.” These severe rules, which, coming

from the archbishop,[449] were, of course, repeated by all the prelates,

resembled the penal systems of discipline which reached their maximum of

cruelty in the nineteenth century.

But there seems good reason to believe that the Church’s treatment of

its prisoners remained, on the whole, mild and humane. The clergy were

not hardened prison officials; their calling was spiritual rather than

military. They were dealing with men belonging more or less to their own

order, and were prone to class loyalty.[450]

In the light of subsequent criticism and legislation,[451] it seems that

even after Islip’s ordinance the Church’s convicts were much better

treated than were the laymen in the common gaols. Moreover, either (or

both) from a sense of humanity,[452] or because the bishops disliked

having to pay for the keep of their prisoners,[453] long sentences were

avoided and life sentences were inflicted as rarely as possible; the

prisoners would be pardoned[454] on jubilees and special occasions, and

sometimes released on their friends paying ransom (apparently of such

sums as £20 or £40; _vide_ Lea, _Studies in Church History_, p. 202, and

the statute 23 Hen. VIII. c. 1). The State all along appeared on the

side of severity, and, from the thirteenth century, was in the habit of

sending clerks to their bishop _absque purgatione_, who, in theory at

least, were to be life prisoners. Indeed, if the ordinary should attempt

to release such persons, he could be restrained from doing so by a writ

out of the Chancery.[455]

So early as 1238 a Bishop of Exeter[456] was in trouble for having sent

a certain clerk to purgation. Later on an Abbot of St. Albans[457] was

accused of allowing some prisoners to escape; and there are doubtless

other instances. But evidently the prisoners of the bishops were

continually being released, for we find a special statute[458] passed in

the year 1402 forbidding that clerks found guilty of treason (of less

degree than plotting against the king himself), or who were known to be

common thieves, should be allowed any sort of purgation. In 1485 an

Act[459] was passed by which the bishops might commit priests, clerks,

and religious men to ward and prison for advowtry (_i.e._ adultery),

fornication, incest, or any other fleshly incontinence, and they were

not to be liable for actions for wrongful imprisonment.

In 1487 a severe blow was aimed at immunity. By this Act,[460] clerks

(_i.e._ such as could read, but who were not actually within orders)

were to enjoy their privilege only once; and to ensure that they should

no longer be “continually admitted as oft as they did offend,” it was

ordained that clerks not within orders, who should hereafter be

convicted of murder, should be forthwith branded[461] by the gaoler in

open court with the letter M upon the brawn of the left thumb, and, if

found guilty of theft,[462] with the letter T, before being handed over

to the ordinary’s officer.

An ordained priest could appeal to his Church again, but if he should

claim his clergy a second (or other) time, he was to have his letters of

ordination ready at hand, though he might be allowed one day’s grace in

which to obtain them—or equivalent evidence from the nearest bishop—and

if they were not forthcoming he forfeited all clerical privileges.[463]

In 1496 lay persons who should murder their lord, master, or sovereign

immediate were deprived of their clergy; and in the fourth year of the

following reign more exceptions were made, and clergy was taken from

all, not actually within orders, who committed a felony in a church, or

upon the king’s highway, or who slew anybody in his own house.[464]

We have already seen with what exceeding difficulty a clerk, and more

especially a priest, could be degraded and cast out of orders. To remedy

this. Cardinal Wolsey, Archbishop of York, obtained a Bull[465] (as

regarded England) from Pope Clement VII. in 1528, by which a single

bishop, assisted by two abbots or other high dignitaries, could perform

the ceremony.[466]

The statute 23 Hen. VIII. c. 1 (1531) alludes to the monition of Edward

I. (1275), to the effect that no Church prisoners should depart without

strict purgation, on which Henry VIII. observes that, nevertheless, they

were released very easily. It cites the statute of Henry IV. (1402),

which ordered that notorious criminals should make no purgation, and

goes on to say that the ordinaries kept releasing offenders speedily and

hastily “for corruption and lucre,” or because the clergy will in no

wise consent to take charge of prisoners. The law then proceeds to take

away the benefit of clergy from the various petit treasons previously

referred to, and also for arson, from all clerks—subdeacons and the

grades above them still excepted. The clergy within orders were to have

lifelong imprisonment for these crimes,

By the fourth Canon at the thirteenth session of the Council of Trent in

1551, it was decreed that a bishop or his vicar-general could condemn,

and even degrade criminous clergy, with the assistance of as many mitred

abbots, or, in default of them, as many high ecclesiastics as there

would have been bishops under the old system. Lecourayer, i. p. 550;

Luzio, _Cath. Ency._ iv. p. 678.] unless they could find guarantees for

good conduct—the accused to the extent of £40, with two substantial

sureties in £20 apiece. By this statute it was also intended to relieve

the bishops of the burden of maintaining their prisoners, and they were

empowered to degrade such offending clerks, and to hand them over “in

sure and safe keeping into the King’s Bench,” with a certificate

certifying their degradation—now so much easier—upon which the king’s

judges were to pass such sentences (usually of death) as would have been

passed upon the convicted if, at the time of their accusation, they had

been laymen and not clerks of any kind.

Nor was this all, for in the same year (1531) an Act[467] was passed by

which escapes from the bishop’s prison were made felony for the clerks;

those within orders were to be sent back to their prison, to abide there

without release. In 1533[468] clergy was taken away from all who refused

to plead, or who challenged above twenty jurymen peremptorily. In

1536[469] clergymen within orders were to be placed on the same footing

with other clerks, but this law only lasted about a decade. But now the

immunity of the clergy began to be taken away by a long series of

statutes exempting particular crimes from any indulgence.[470]

In 1576 convicted clerks ceased to be handed over to the bishops to make

purgation.[471] For all “clergyable” felonies, Lords of Parliament[472]

(even when they could not read) and the clergy in orders were

immediately released. The rest who could read were discharged for a

first offence upon being branded, but the Court might also order their

detention in prison for not more than a year; the captives who could not

read were speedily hanged.[473]

As the privilege of clergy became less worth having it was extended: to

the _bigami_, or twice married, in 1547, and to women[474] (professed

nuns had always lived under the Church’s rule) in 1692. Upon conviction

they were to be treated in the same way as the men in similar cases,

that is, branded upon the hand, and then discharged, either at once or

after imprisonment not exceeding one year.

In 1699[475] it was ordered that the branding should be done upon the

face, but this cruel marking was found to prevent the victims from

obtaining employment and to render them desperate, and the law was

repealed six years afterwards in the reign of Anne.[476] In 1705 the

reading test was abandoned. The distinction had come to lie between

offences, not offenders,[477] and all were admitted to “clergy” who had

been convicted of any of these minor felonies which still remained

clergyable.[478] The Act of 1705 also provided that such convicts should

be liable to be sent to houses of correction or to public work-houses,

for periods of not less than six months or exceeding two years, at the

discretion of the magistrates.

In 1717[479] it was enacted that persons (other than peers or clerks in

orders) guilty of clergyable offences might be transported for seven

years[480] (the usual sentence was for fourteen), instead of being

branded or whipped.[481] In 1779[482] persons liable to be burned in the

hand might escape with a fine, or they might be whipped in public or

private, not more than three times; women were to be flogged in the

presence of females. By this Act the branding was abolished in practice;

and about half a century later all that remained of the old privilege

was done away with in the reign of George IV.[483]

It has been customary to condemn all these old rights for so many years

accorded to clerkship, because they are supposed to have constituted

infringements of the principle that all men should be equal before the

law.[484] But when we consider the barbarities they prevented, and after

we have examined and ascertained the aimlessness and inutility of mere

punishments, we may be forced to think that they were not an unmixed

evil, and that, perhaps, they rather made for good.

SUMMARY AND “POETIC” PUNISHMENTS

Since the poor human body has always been sensitive, so at the

promptings of the revenge instinct it has always been assailable and

most readily beaten. Naturally enough the Duke of Gloster exclaims—in

that most subtle second act of _Henry VI._—“Have you not beadles in your

town and things called whips?” Of course they had. The serf, the varlet,

the vagabond, the lunatic, and the petty offender were all whipped with

uncertain severity;[485] most likely until the victim was bloody and

until the operator was tired and felt he had earned his fee. Doubtless

the whips were of all sorts and sizes. They are frequently represented

as having three thongs;[486] Titus Oates was flogged with a whip of

six.[487] I have seen and handled a lash of transportation times, which

had a thick leather thong bound with wire.[488] The cat-o’-nine-tails is

alluded to in the eighteenth century.[489]

Both men and women[490] (the latter up to 1817[491]) were flagellated in

public, being either tied up to a post, or fastened behind a cart and so

thrashed along the road. Perhaps the most obvious thing to do, next to

flogging an offender, was to exhibit him to the populace. The country

was immeasurably more parochial than it is now in these times of travel,

and to be rendered infamous in one’s village or neighbourhood was no

trifling penalty; and so we find the stocks set up in the towns and

hamlets,[492] and, for more serious misdemeanours, there was the lofty

pillory or neck-catcher (the _heals-fang_).

This well-known instrument[493] was made of all shapes and sizes, and

varied from a forked post or a slit pillar[494] to what must have looked

like a penal dovecote made to hold several prisoners.[495] The convicted

were sometimes drawn thither on hurdles, and might be accompanied by

minstrels on the way.[496] The hair of the head and beard was shaved

off, and sometimes the victims were secured by being nailed through the

ears to the framework, and might also be branded.[497] With faces

protruding through the strong beams, and with hands through two holes,

secured and helpless, they were made to stand defenceless before the

crowd as targets for any missiles that might be thrown. To those who

were hated this was a serious ordeal, for they would be so pelted and

knocked about by the mob as to be badly wounded, if not actually done to

death. At length those who had stood their time were released, and those

who had had their ears nailed would be cut free, and then they might

slink away from the scene of shame, or be carried back to prison to

endure additional punishment. The pillory was abolished for all offences

except perjury and subornation in 1816,[498] and altogether in the year

1837.[499]

Before leaving the middle ages we must examine what I have classed as

the poetic punishments. These were the spontaneous reprisals with which

the community strove to repay the criminals in kind, and by which, if

strict taliation were seldom attainable, our ancestors succeeded in

contriving many chastisements that were, at any rate, associable

equivalents. Of these a few examples may be given. For instance, a baker

who sold loaves which were short of weight was shown with the bread tied

round his neck.[500] A fishmonger who had been selling bad fish was

paraded with a collar of stinking smelts slung over his shoulders.[501]

A grocer who had been selling much-adulterated spices was placed in the

pillory and had the powders burned beneath his nose (A.D. 1395).[502] A

heretic who had advocated strict Judaism was sentenced to prison and to

be fed entirely upon pork.[503] The Inquisition attached two pieces of

red cloth in the shape of tongues to the breast, and two more upon the

shoulders of a false witness, which were to be worn for life.[504]

Indeed, badges and crosses were often imposed, and were in these times a

dreadful mark of Cain.[505] In 1505 two men were sentenced by the

archbishop to wear a faggot (or a badge representing one) upon the left

shoulder, to show that they stood in danger of the flames.[506] It would

seem they did, for they were burned alive in 1511.

Louis IX. ordered that those who had spoken indecently should have their

tongues pierced and their upper lips cut away.[507] Pope Innocent IV.

remonstrated with the king against this barbarity. The mutilation of the

tongue was a punishment known and inflicted in England for blasphemy. In

1656 one James Nayler, “the mad Quaker,” had his tongue pierced with a

hot iron for claiming to be the Messiah.[508] He was also whipped at the

cart’s tail, and kept in prison for two years. A drunkard was sometimes

walked about in a barrel, his head protruding from the top and his hands

from two holes made in its sides.[509]

For the village scold[510] they kept the brank or bridle of iron, which

contained a flat (and for the unfortunate witches[511] occasionally a

spiked and painful) gag that went into the mouth and pressed down the

tongue. They might also be placed in the local ducking chair[512] and

immersed in water. A remarkable illustration[513] of the intensely

individual and personal aspect of primitive penalties[514] is furnished

where—as it sometimes happened—the prosecutor had himself to execute his

convict assailant, “or dwelle in prison with the felon unto the time

that he wyll do that office or else find a hangman.”[515]

------------------------------------------------------------------------