Punishment is efficacious in deterring from crime only if it be certain
and speedy. Severity is quite a minor point, and it will be found that the
deterring effect of punishment is by no means proportionate to its
cruelty.
The first requisite is certainty, for human nature is so constituted that
if there be a chance of escape, ninety-nine out of a hundred will be found
to run the risk. A slight punishment, if certain, is infinitely more
likely to produce the required results than the most terrible exhibition
of cruelty upon representative criminals. If certainty be a main
requisite, speediness is also necessary; lasting and cruel punishments
harden but do not reclaim.
Of this our forefathers in the middle ages were profoundly ignorant. With
an inefficient police, it was not to be expected that one tithe of the
malefactors, then so numerous, should fall into the hands of justice, and
the authorities endeavoured to make up for this imperfection by
exaggerated severity, and by grotesqueness in the punishments they
inflicted.
I have said our forefathers in the middle ages, for the Anglo-Saxons and
Danes were far too sensible to resort to cruel or absurd penalties, when
milder and reasonable ones would answer their purpose.
Thus the laws of Canute direct that the correction of a criminal should be
so regulated that it may appear seemly in the eyes of Him who said,
“Forgive us our trespasses, as we forgive them that trespass against us,”
and they enjoin that the judge should not be unduly severe, but lean
rather to a gentle punishment; and also that if it appeared likely that
the criminal was fully penitent and inclined to amend, full mercy should
be shown to him.
Indeed it was a feature characteristic of Saxon and Danish laws, that
compensation should be aimed at and the reclamation of the criminal,
rather than retribution. Capital punishments were sanctioned, but in all
cases an opportunity was offered for the substitution of a fine. Thus, by
the law of King Ina, if a thief were caught, he was sentenced to death,
but his life could be redeemed by pecuniary satisfaction being made to the
persons robbed. So the fine inflicted on a murderer was regulated
according to the sum at which the life of the murdered party was valued;
thus, if a man slew a freeman, he had to make compensation to the amount
of one hundred shillings, but for the murder of a thrall a much less sum
was demanded. If a freeman slew his thrall, he paid a nominal fine to the
king for a breach of the peace; but if a slave killed his master, the
doctrine of blood for blood was carried into effect, as the thrall had no
personal property to pay in compensation for his crime.
Fines were imposed by the Anglo-Saxons for all kinds of personal injuries.
Thus by the laws of King Ethelbert, for breaking a man’s front tooth the
fine imposed was six shillings, but a molar was regarded as worth only one
shilling, and a canine tooth was valued at six. King Alfred however,
revised these laws, and taking into consideration the fact that the molar
is a double tooth, and that it is a very serviceable tooth besides, he
raised its market value to fifteen shillings.
If a man struck out the eye of another and blinded him, he was obliged to
make satisfaction with fifty shillings, and one who was in a troublesome
mood and had plenty of loose cash to dispose of, might break a neighbour’s
rib for three shillings, and dislocate his shoulder for twenty. According
to the decrees of the Witan, a fine of one shilling was enacted for
crushing the finger-nail of a neighbour, but if the thumb-nail had
suffered, three shillings was its value.
A testy Saxon might venture to pull the nose of his enemy if he had three
shillings to spare, but then he had to be cautious, for if the pull were
sufficiently violent to make the nose bleed, he had to pay six shillings.
It was the almost universal custom throughout Europe that forgiveness
should be judged according to the laws of their native country, and not
according to the law of the land in which the offence was committed; and
“thus,” says Dr. Henry, “the nose of a Spaniard was perfectly safe in
England, because it was valued at thirteen marks, but the nose of an
Englishman ran a great risk in Spain, because it was valued at twelve
shillings. An Englishman might have broken a Welshman’s head for a mere
trifle, but few Welshmen could afford to return the compliment.”
Among the Anglo-Saxons the penalty inflicted on coiners was the loss of
one hand; hardly a cruel sentence in comparison with that which was
inflicted during the middle ages, up to the close of the sixteenth
century, namely, boiling alive in oil or water.
An old German code of laws gives the following horrible directions:
“Should a coiner be caught in the act, then let him be stewed in a pan, or
in a caldron half an ell deep for the body, so that the man may be bound
to a pole which shall be passed through the rings of the caldron, and
which shall be tightly strapped and bound to upright posts on either side,
and thus he shall be made to stew in oil and wine.” A scene such as this
was witnessed in Sweden in 1500, by Archbishop Olaus Magnus of Upsala, and
instances without number might be cited from German and French city
registers. Taking one town alone, Lübeck, we find that a poor fellow who
gave himself out to be the dead king Frederick II., and who was probably
an inoffensive madman, was thus put to death in 1287.
A second instance occurred in the year 1329, when the man was boiled in
the market-place in the midst of a vast concourse of people. A similar
sentence was pronounced in 1459, and again in 1471, but in this instance,
at the last moment, in consideration of the earnest entreaty of the
bishop, the sentence was commuted to burning alive on a pile of faggots,
at the Mühlenthor. This poor wretch was less fortunate than the coiner
Jacob von Jülich, who, when crouching in the caldron, and shrieking with
agony, obtained the mercy of having his head struck off.
In the sixteenth century, coiners were hanged instead of boiled: till
lately, however, the caldron which was used for this horrible purpose was
visible in the market-place of Osnabrück.
A punishment much in vogue during the middle ages for those who were
guilty of stabbing with intent to wound, but without causing death, was
sufficiently terrible. The hand which had dealt the blow was placed upon a
table with the fingers spread out, and the weapon which had been used was
struck violently into the back of the hand, pinning it to the table, and
the criminal had to draw his hand away without removing the knife. This
was statute law pretty nearly throughout Europe, and it continued in force
till the middle of the seventeenth century, but the Frisian laws permitted
the penalty to be remitted if the culprit chose to pay compensation to
the amount of twenty-five gulden.
In 1638, Count Anthony Gunter of Oldenburg ordered a post to be erected
before the church, or in the market, and the criminal to be fastened to it
by a knife driven through his hand; and thus he was to stand for three
hours. This law was not abrogated in Germany till 1661.
Mutilation was common enough in the middle ages. We find in the laws of
William the Conqueror--
“We forbid that criminals of any sort should be killed or hanged, but let
their eyes be plucked out, or let their hands and feet be chopped off, so
that nothing may remain of the culprit but a living trunk, as a memorial
of his crime.” How different this from the tone of Saxon laws.
At Avignon, in 1245, false witnesses had their noses and upper lips cut
away, and the same penalty was inflicted in Switzerland on blasphemers.
Eugène Sue suggested that capital punishment should be replaced by
privation of sight. But if his system were carried into effect, those
unhappy individuals who have either been born blind or have lost their
sight by accident, would be compelled to carry about with them a
certificate to the effect that they were honest men, as did the Arab
grammarian Zamakuschari, who died in 1144. This writer, having had a foot
frost-bitten in Kharism, carried ever about with him an attestation to the
fact, signed by a number of persons of credit, so that no one would
regard him as a criminal who had suffered mutilation.
Our own King John, according to Matthew Paris, invented a punishment of
great cruelty. Geoffry, Archdeacon of Norwich, having offended him, he had
him encased in a sheet of lead, which was folded round him and fitted to
his shoulders like a cloak. The unhappy man died of the burden and of
horror. “This,” says an Anglo-Norman writer, “is the judgment of ‘pain
fort et dure’; to wit, the condemned shall be placed in a low chamber
locked. And he shall lie naked on the ground without litter, bedding, or
cloth, and without anything over him; and he shall lie on his back with
his head to the west, and his feet to the east, and one arm shall be drawn
to one quarter of the room by a rope, and the other arm in like manner to
the other quarter, and in the same way shall his legs be extended, and
upon his body shall be placed iron and stone, as much as he can bear; the
first day he shall have three lumps of barley bread, but nothing to drink,
and next day he shall drink thrice, as much as he wants, of water brought
from near at hand to the prison, excepting that it be running water, and
he shall have no bread, and this succession shall be followed till he
dies.”
Can it be believed that such a terrible death as this was inflicted in the
reign of Queen Elizabeth, on the 25th of March 1586, and that the person
who suffered was a woman, on the indictment “that she had harboured and
maintained Jesuit and seminary priests, traitors to the Queen’s Majesty
and the laws; and that she had heard mass, and the like.” The law of the
land required that those who would not plead “guilty” or “not guilty,”
should be made to plead, “by being laid upon the back on the ground, and
as much weight laid upon the accused as he or she can bear, and that the
accused shall so continue for three days, and should he or she still
refuse to plead, then to be pressed to death, the hands and feet tied to a
post, and a sharp stone set under the back.” The unfortunate woman,--her
name was Margaret Clitheroe,--labouring under the idea that she was being
martyred for her religion, whereas she was simply a victim to her own
obstinacy in refusing to plead, endured this fearful death. Had she
pleaded she would have escaped, for the evidence against her was of so
slender a nature that she must have been acquitted. The judge, Clinch, who
gave the sentence, did so with great reluctance, and only because, as the
law stood, it was impossible for him to evade it.
In the reign of James I., we learn from Sir Walter Scott, a Highland chief
in Ross, of the name of M’Donald, hearing that a poor widow had determined
to go on foot to Edinburgh to see the king, and obtain from him justice
against the chief, sent for her, and telling her that the way was long,
and that she would require to be well shod for the journey, had a
blacksmith brought, and made him nail her shoes to her feet, in the same
way in which horses are shod. The widow, however, was a woman with a will
of her own, and as soon as she had recovered, she betook herself on foot
to Edinburgh, and casting herself at the feet of the king, besought of him
punishment on the tyrannical chief. King James, indignant at her
treatment, had M’Donald seized along with twelve of his accomplices, and
had iron soles nailed to their feet. They were exposed in this condition
to the public gaze, and were then decapitated.
When Richard Cœur de Lion was on his way to the Holy Land he drew up a
code of criminal laws by which discipline was to be maintained among his
troops. One of these contains the following article:--“If any one is
convicted of theft, boiling pitch shall be poured over his head, and then
a pillowful of feathers shall be shaken over it, so that the fellow may be
certainly recognised. And he shall be abandoned on the first land where
the vessel touches.”
This reminds me of the trick played by certain wags on a poor nun in 1198.
They covered her with honey, rolled her in feathers, mounted her on
horseback, and paraded her about the town. Philip Augustus, hearing of
this, had the unfortunate jokers seized and plunged into a vat of boiling
water.
A curious ordinance in force at Dortmund, in Westphalia, A.D. 1348,
required that, “if two women quarrel so as to come to blows, and at the
same time use abusive language, they shall be required to carry, the whole
length of the town along the High Street, two stones weighing together one
hundred pounds, attached to chains. The first woman shall carry them from
the east gate to the west gate, whilst the second goads her on with a
needle fastened to the end of a stick,” and both are directed to wear the
lightest of all possible costumes. “The second is then to take the stones
upon her shoulders and to carry them back to the east gate, the first
applying the same stimulus.” This punishment was common all over Germany.
In Lübeck the stones were shaped like bottles, in other places they were
rudely-carved heads of women with protruding tongues; and in some towns
they were in the shape of cats. At Hamburg a procession of women sounding
cows’ horns was part of the programme, and at Worms a band of
bell-ringers.
The old English cucking-stool for shrews is well known; it was common
abroad also, with some customs peculiarly foreign. For instance, the
unfortunate persons who had to do penance for their shrewish tongues were
sometimes put into a large hamper, or a cage, and so suspended to a
gallows, in the evening to be plunged, basket and all, into the nearest
pond.
In the museum at Cahors the iron cage in which shrews were dipped is still
shown.
Fools’ caps have long served as punishment in village schools, but their
use in them was probably derived from the legal practice of condemning
certain delinquents to the use of peculiar caps. Thus in Germany some
minor crimes were punished by the culprit being sentenced to sit all day
on a post in the middle of a canal, with a tall scarlet steeple cap on his
head. In Rome, bankrupts were condemned to wear in public black bonnets of
a sugar-loaf form. At Lucca they wore them of an orange colour; and in
Spain they bore in addition an iron collar.
The ancient Roman manner of punishing parricide, by casting the murderer
into the water in a sack which contained as well a cock, an ape, and a
serpent, was not unused in the middle ages, and we find it threatened in
an ordinance of the Provost of Paris, published on 25th June 1493, in
which all persons sick with smallpox are bidden leave Paris at a day’s
notice, or suffer the penalty above mentioned.
I might extract accounts of the most fearful of punishments which the
cruelty of man could devise, from Oriental sources, but the barbarities
practised by the Mussulmans are sickening through their excessive cruelty.
Suffering enough has been undergone in our own quarter of the globe, and
that too at no great distance of time from the age in which we live.
I will instance, in conclusion, the painful account of the execution of
Balthazar Gerard, who assassinated William of Orange, on the 10th of July
1584, as given by Brantôme. “First he was racked with extraordinary
cruelty, without his uttering a word, except that he persisted in his
former assertion.
“Then, before he died, for eighteen days he was tortured with excessive
cruelty. On the first day he was taken into the public square, where
there was a caldron of boiling oil, into which was thrust the arm which
had dealt the blow. On the morrow this arm was chopped off, and it fell at
his feet. He calmly moved it with his foot, and pushed it before him down
from the scaffold. On the third day his breast and the front of his arm
were plucked with red-hot pincers; on the following day his back and the
back of his arm, and legs, were treated in the same manner. This was
continued for eighteen days, and after each torture he was conducted back
to prison, he all the while enduring his sufferings with great constancy.
The greatest torture of all that he endured, except death, was when he was
bound naked in the middle of the square, and around him at a little
distance waggon-loads of charcoal were set on fire, and thus he was
wrapped in flame. The poor sufferer bore the roasting for a long while,
and then at last he lost patience and cried out; whereupon he was removed.
For the final torture he was broken on the wheel, but he did not die at
once, for they had only broken his legs and arms, so as to make him
linger. Thus he lived for six hours, imploring some one to bring him a
drop of water, but no one had the courage to give it him. At length the
officer was entreated to put an end to this scene, and to strangle him,
lest he should die in despair, and so his soul perish. The executioner
approached, and when close to him asked how he felt. The tortured man
replied, ‘As you left me.’ But when the cord was produced to be put round
his neck, he raised himself, as though fearing death, as he had not feared
it before, and said to the executioner:--‘Ah! pray leave me alone. Do not
torture me any more! Pray let me die as I am!’ So having been strangled,
his life closed. Awful were the torments he endured!”