Chapter I — Penal Methods of the Middle Ages — Penal Methods of the Middle Ages by George Ives

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 Times166 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

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